Barr et al v. Galvin

Filing 64

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER "In accordance with the foregoing, plaintiffs' motion to certify a question to the Massachusetts Supreme Judicial Court (Docket No. 55 ) is DENIED." (Duong, Diep)

United States District Court
District of Massachusetts
________________________________
)
Bob Barr, Wayne A. Root,
)
Libertarian Party of
)
Massachusetts, and Libertarian
)
National Committee, Inc.,
)
Civil Action No.
Plaintiffs,
)
08-11340-NMG
)
v.
)
)
William F. Galvin, as Secretary )
of the Commonwealth of
)
Massachusetts,
)
Defendant.
)
________________________________ )
MEMORANDUM & ORDER
GORTON, J.
Before the Court is plaintiffs’ motion to certify a question
to the Massachusetts Supreme Judicial Court regarding the
interpretation of Mass. Gen. Laws ch. 53, § 14.
I.

Background
In September, 2008, this Court entered a preliminary

injunction ordering defendant William F. Galvin (“Galvin”), in
his capacity as the Secretary of the Commonwealth of
Massachusetts, to place the names of Bob Barr (“Barr”) and Wayne
A. Root (“Root”) as the Libertarian candidates for president and
vice president, respectively, on the Massachusetts ballot for the
2008 presidential election.

In September, 2009, the Court

allowed the plaintiffs’ motion for summary judgment and entered

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judgment in their favor.

The defendant appealed that

determination to the First Circuit Court of Appeals shortly
thereafter.
In November, 2010, the First Circuit issued a Judgment in
which it, inter alia, 1) determined that Mass. Gen. Laws ch. 53,
§ 14 is not unconstitutionally vague but does require state court
interpretive clarification and 2) remanded the case to this Court
with instructions to effect Pullman abstention on the “void for
vagueness” claim and dismiss what remained of the action without
prejudice.

Accordingly, this Court entered an Order in which it

abstained on the claim of “void for vagueness”, thereby staying
that claim pending a state court interpretive clarification of
the state statute, and dismissed all other claims without
prejudice.
In March, 2011, plaintiffs moved to certify a question to
the Massachusetts Supreme Judicial Court (“SJC”) regarding the
interpretation of Mass. Gen. Laws ch. 53, § 14, arguing, in part,
that the First Circuit Court of Appeals indicated in its Judgment
that Massachusetts courts should be afforded the opportunity to
interpret the statute in the first instance.

Defendant opposed

the motion which is pending before the Court.
II.

Motion to Certify
A.

Standard

A federal court may certify a question of state law to the

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SJC where it finds no controlling precedent and where the
question may be determinative of the pending cause of action.
Mass. S.J.C.R. 1:03; see also In re Hundley, 603 F.3d 95, 98 (1st
Cir. 2010) (per curiam) (citations omitted) (certifying question
sua sponte).
B.

Application

In the instant action, this Court must act in accordance not
only with the standard applicable to certification but also with
the decision of the First Circuit.

Because the First Circuit

clearly ordered this Court to abstain under the Pullman doctrine,
this Court will deny plaintiffs’ motion for certification.
In its decision, the First Circuit held that the relevant
state statute:
is in need of interpretive clarification. Pursuant to
principles of Pullman abstention, that interpretation should
be effected by the Massachusetts courts.
Although the First Circuit acknowledged the lack of a pending
state court proceeding, it referred to the “anticipated statecourt action” and repeatedly remarked upon the substantial time
available for such an action:
Especially given the lack of urgency - the next presidential
election is almost two full years away - we think that the
needed interpretation is a task for which the state courts,
as the ultimate arbiters of state-law questions, are better
suited. . . . As noted above, the next presidential election
is nearly two years distant, and thus we find that any delay
in obtaining relief pending state court adjudication would
impose no onerous burden upon the parties. . . . There is no
election on the horizon, and the appellees have ample time
to litigate the validity of the Secretary’s position in the
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state courts. . . . There is plenty of time in which to
obtain such an interpretation: the run-up to the next
presidential election has barely begun.
(citations omitted).
In addition, the First Circuit “has discretion to certify
questions to the SJC when a party fails to move for certification
in the district court, or to do so sua sponte.”

Real Estate Bar

Ass’n For Mass., Inc. v. Nat’l Real Estate Info. Serv., 608 F.3d
110, 119 n.2 (1st Cir. 2010) (citations omitted).

The First

Circuit here, however, neither certified a question to the SJC
nor ordered this Court to do so, as it has in other cases. See,
e.g., Horta v. Sullivan, 4 F.3d 2, 25-26 (1st Cir. 1993)
(certifying question to SJC); Muniz-Olivari v. Stiefel Labs.,
Inc., 496 F.3d 29, 41 (1st Cir. 2007) (ordering district court to
certify on remand).

Moreover, certification “serves as a

substitute for, not a complement to, abstention.”

Rogers v.

Okin, 738 F.2d 1, 5 (1st Cir. 1984) (citation omitted); see
Turner v. City of Boston, 2011 WL 379410, *2-7 (D. Mass. Feb. 7,
2011) (discussing Pullman abstention and certification as
alternatives to one another and determining certification was
more appropriate).
By ordering this Court to abstain under the Pullman doctrine
and stressing the abundant time available in which the parties
may seek interpretation of the relevant statute in the
“Massachusetts courts”, the First Circuit indicated that the

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parties should seek that interpretation by filing a separate
action in state court rather than by certification to the SJC.1
This Court will, therefore, deny plaintiffs’ motion to certify a
question to the SJC.
ORDER
In accordance with the foregoing, plaintiffs’ motion to
certify a question to the Massachusetts Supreme Judicial Court
(Docket No. 55) is DENIED.

So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated June 14, 2011

1

Judge Selya, who authored the First Circuit’s Judgment in this case,
has criticized publicly the practice of certification. See Bruce M. Selya,
Certified Madness: Ask a Silly Question, 29 Suffolk U.L.Rev. 677 (1995)
(criticizing certification as practice that does not achieve goals of improved
federalism, judicial efficiency or fairness). It therefore seems unlikely
that he intended this Court to certify a question to the SJC absent an
explicit order to do so. In addition, at least one court in this district has
declined to certify a question, relying in part on Judge Selya’s article. See
Flebotte v. Dow Jones & Co., Inc., 51 F. Supp. 2d 36, 44-45 (D. Mass. 1999)
(Freedman, J.).

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