21 February 2006


Justice Stevens is an immensely polite and gracious man. He must be, after the restrained way he characterized the Rooker-Feldman doctrine in his dissent today in Lance v. Dennis, No. 05–555 (Feb. 21, 2006) (per curiam). Instead of calling it "an abomination seeking a reason for continued existence," or "an irrational abrogation of authority and responsibility," or "bad law arising from bad facts and worse lawyering," he just called it "a doctrine that has produced nothing but mischief for 23 years" (slip op. at 11).

The tangled procedural history in Lance points out just how broken our jurisprudence on electoral districting is. Colorado garnered another representative after the 2000 Census, requiring a new map for the 2002 federal elections. The legislature, in an entirely predictable exercise in partisan infighting, couldn't draw one in time, so the Colorado courts did it. In 2003, the legislature finally put forth a plan, but it was different from the one the courts had drawn. Thus, Colorado's Attorney General filed an original-jurisdiction suit in the Colorado Supreme Court, which sought to require the Colorado Secretary of State to use the legislature's map in the 2004 elections. The legislature intervened in support of its plan. The Colorado Supreme Court, though, said that one redistricting per decade is all that is allowed—and that was the courts' plan.

In the meantime, several Colorado voters had filed a parallel suite in the lower courts in Colorado. The federal claims allowed removal of that suit to federal court—in this instance, a three-judge trial court from which today's decision is a direct appeal. In the meantime, the Colorado Secretary of State switched her allegiance from defending the legislature's plan to defending the courts' plan. The three-judge court trial court eventually held that the Rooker-Feldman doctrine took away its jurisdiction to hear the most important of the voters' claims—which had been appended only after the Colorado Supreme Court had ruled the other way in the AG v SoS suit.

If your head isn't hurting yet, I'd like to know what analgesic you're using.

In any event, Rooker-Feldman prevents a federal court other than the Supreme Court from hearing an "appeal" of a state court opinion. (It's a little more complicated than that, but that's close enough for now.) The three-judge trial court had decided, consistent with Tenth Circuit precedent, that the voters were sufficiently in privity with the legislature (and, although this is almost entirely ignored, the Attorney General) that they were trying to "appeal" the Colorado Supreme Court's ruling. The US Supreme Court said that privity and preclusion are not part of the "limited" Rooker-Feldman doctrine.

Whatever the impact of privity principles on preclusion rules, Rooker-Feldman is not simply preclusion by another name. The doctrine applies only in limited circumstances, where a party in effect seeks to take an appeal of an unfavorable state-court decision to a lower federal court. The Rooker-Feldman doctrine does not bar actions by nonparties to the earlier state-court judgment simply because, for purposes of preclusion law, they could be considered in privity with a party to the judgment.

Slip op. at 7 (citation and footnote omitted).

There was a much simpler way that the Court could have decided this matter. If there is one area of law to which the Rooker-Feldman doctrine should never apply—particularly in the face of the parallel enforcement mechanisms established in the Voting Rights Act—it is election law. That is not to say that every state judiciary's decisions on electoral matters can be challenged in a federal district court; as Justice Stevens points out in his dissent, issue preclusion suffices to throw out the claims in this matter. Perhaps analyzing issue preclusion will be difficult. I am not convinced either way by the privity arguments in Lance, indicating that Justice Ginsburg and Justice Souter's concurrence suggesting "that question of Colorado law seems to me best left for full airing and decision on remand" foreshadows the ultimate result—after both sides pay the lawyers.