League of Women Voters of New Hampshire et al v. NH Secretary of State et al
Filing
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ORDER granting 9 Motion to Remand to State Court. CASE REMANDED to Hillsborough County Superior Court, Southern District. (Case Closed). So Ordered by Chief Judge Joseph N. Laplante.(jb)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
League of Women Voters of
New Hampshire, et al.
v.
Civil No. 17-cv-395-JL
Opinion No. 2017 DNH 174
New Hampshire Secretary of
State, et al.
NH Democratic Party
v.
Civil No. 17-cv-396-JL
Opinion No. 2017 DNH 174
New Hampshire Secretary of
State, et al.
ORDER
The New Hampshire Democratic Party and the League of Women
Voters of New Hampshire, along with certain individual
plaintiffs, brought separate actions in Hillsborough County
Superior Court, challenging the constitutionality of the
recently-enacted Senate Bill 3 (“SB 3”).
Plaintiffs’ original
complaints, filed in that court, brought claims under both the
New Hampshire and United States Constitutions.
Defendants
removed both actions, citing this court’s subject-matter
jurisdiction under 28 U.S.C. § 1331 (federal question).
See 28
U.S.C. § 1441.
Plaintiffs amended both complaints to disavow any claims
under the United States Constitution, electing to challenge SB 3
only under the New Hampshire Constitution,1 and now move to
remand both actions.
The court grants both motions.
“[F]ederal courts are courts of limited jurisdiction.
They possess only that power authorized by Constitution and
statute . . . .” United States v. Coloian, 480 F.3d 47, 50 (1st
Cir. 2007) (quoting Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994)).
“When federal claims are dismissed
before trial, state claims are normally dismissed as well.”
McInnis-Misenor v. Maine Med. Ctr., 319 F.3d 63, 74 (1st Cir.
2003).
It is true, as defendants argue, that “[a]n amendment to
a complaint after removal designed to eliminate the federal
claim will not defeat federal jurisdiction.”
Ching v. Mitre
To be clear, the court shared the defendants’ concern that the
plaintiffs might attempt to resurrect federal claims by raising
arguments -– if not distinct claims -- under the U.S.
Constitution on remand. Under direct questioning from the court
during a late afternoon telephonic hearing on September 1, the
League of Women Voters’s counsel unequivocally disavowed any
federal constitutional claims or arguments, going so far as to
affirmatively recognize, also under direct judicial questioning,
the possibility that federal constitutional claims could be
barred under the doctrine of res judicata after a state court
final judgment. The court assumes that the amendment by the New
Hampshire Democratic Party carries the same import, and its
counsel should immediately notify the court if that is not the
case.
1
During the hearing, the Attorney General and his Assistants also
requested an opportunity to brief their objections on an
expedited basis. The court allowed that, and briefs were filed
Sept. 2 and 3. Counsel are commended for their commitment and
professionalism.
2
Corp., 921 F.2d 11, 13 (1st Cir. 1990).
Because the court
retains supplemental jurisdiction over the state claims, see 28
U.S.C. § 1367(a), it remains “discretionary with the district
court whether to remand the state claims,” Ching, 921 F.2d at
13.
“The district courts may decline to exercise supplemental
jurisdiction over” such a state-law claim if:
(1) the claim raises a novel or complex issue of State
law;
(2) the claim substantially predominates over the
claim or claims over which the district court has
original jurisdiction;
(3) the district court has dismissed all claims over
which it has original jurisdiction, or
(4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c).
Most, if not all, of these factors point
toward declining supplemental jurisdiction here.
In the case
cited by the defendants as listing such factors, Camelio v. Am.
Fed'n, 137 F.3d 666, 672 (1st Cir. 1998), Judge Barbadoro,
sitting by designation on the Court of Appeals, wrote that “the
balance of competing factors ordinarily will weigh strongly in
favor of declining jurisdiction over state law claims where the
foundational federal claims have been dismissed at an early
stage in the litigation[,]” as is certainly the case here.
Most importantly, the plaintiffs have withdrawn the claims
over which this court had original jurisdiction.
3
See 28 U.S.C.
§ 1367(c)(3); see also supra n. 1.
Under such circumstances,
“the balance of factors to be considered . . . will point toward
declining to exercise jurisdiction over state-law claims.”
Rodriguez v. Doral Mortg. Corp., 57 F.3d 1168, 1177 (1st Cir.
1995).
The remaining claims also raise novel issues of law
under the New Hampshire Constitution, which this court, in its
discretion, deems better resolved by the state courts.
See 28
U.S.C. § 1367(c)(1); Desjardins v. Willard, 777 F.3d 43, 46 (1st
Cir. 2015) (“[N]eedless decisions of state law should be avoided
both as a matter of comity and to promote justice between the
parties, by procuring for them a surer-footed reading of
applicable law.
This is particularly true of interpretations of
state constitutions.” (citations and quotations omitted)
(emphasis added)).
Significantly, the defendants never argue here that federal
jurisdiction lies over the New Hampshire constitutional claims
pleaded in the Amended Complaint, arguing only that “it is not
clear that federal question jurisdiction no longer remains in
this case.”
In support of that less-than-forceful contention,
they point to what they characterize as a federal question:
“whether the New Hampshire Supreme Court’s decision to apply a
bright-line intermediate scrutiny test in State v. Guare, 167
N.H. 658, 665 (2015), is preempted under the United States
Supreme Court’s decisions . . . requir[ing] courts to test the
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burden of restriction against the strength of the State’s
interest in the restriction in a nuanced, case-by-case basis.”2
They argue that this court may, on the basis of this question,
retain jurisdiction over these actions under Grable & Sons Metal
Prod., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314 (2005).
Leaving aside the dubious claim that federal law could ever
“preempt” the standard under which a New Hampshire Court
properly scrutinizes a New Hampshire statute under the New
Hampshire Constitution,3 Grable does not appear to require, or
even suggest, retaining this case.
In Grable, the plaintiff’s
state-law-based quiet-title action required interpretation of
federal tax statutes to resolve an element of his claim.
id. at 315.
See
Thus, the Supreme Court answered in the affirmative
the relevant question:
whether “a state-law claim necessarily
raise[s] a stated federal issue, actually disputed and
substantial, which a federal forum may entertain without
2
Defendants’ Opp. at 4-5.
It is one thing to say that federal law is implicated in a
state-law analysis, or even that the U.S. Constitution applies a
different standard or level of scrutiny to a question; it is
quite another to suggest that federal law preempts state law in
a state’s court’s consideration of claims brought solely under
its own state constitution. Even if federal law is implicated
here, it is thus incorrect to say that federal law “preempts”
the New Hampshire Supreme Court’s interpretation of the New
Hampshire Constitution. The defendants cited no authority for
that proposition.
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disturbing any congressionally approved balance of federal and
state judicial responsibilities.”
Id. at 314.
The answer to that question is necessarily different here,
where the elements of the plaintiffs’ claims implicate only New
Hampshire law.
Even if a defense raised a federal law question,
that question would not independently confer subject-matter
jurisdiction on this court.
See Beneficial Nat. Bank v.
Anderson, 539 U.S. 1, 6 (2003) (“As a general rule, absent
diversity jurisdiction, a case will not be removable if the
complaint does not affirmatively allege a federal claim," even
if a defense relies on federal law).
Nor does it appear to this
court that the “congressionally approved balance of federal and
state judicial responsibilities,” Grable, 545 U.S. at 314, would
favor this court interpreting the New Hampshire Constitution to
determine whether a New Hampshire statute violates that
Constitution absent some weightier federal consideration.4
In truth, federal question concerns do not comprise the
defendants’ main objection to remand.
The first two lines of
their objections to the emergency remand motion describe the
motion as a “ploy” that “succeeds in demonstrating the extent to
This is not a case, such as Libertarian Party of N.H. v.
Gardner, 126 F. Supp. 3d 194, 206 (D.N.H. 2015) (Barbadoro, J.),
where a party has asked the court to apply the New Hampshire
Supreme Court’s interpretation of the New Hampshire Constitution
to claims brought under the United States Constitution.
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which the plaintiff is willing to manipulate the process,” and
the memorandum expands on the theme of forum manipulation for
several pages before addressing the substantive federal question
issue.
The court does not wish to suggest that forum manipulation
is not a legitimate point of consideration in this case.
To be
sure, as the defendants point out, there is authority for the
proposition that it is, see Mass. v. V & M Mgmt., Inc., 929 F.2d
830, 835-36 (1st Cir. 1991), along with comity, fairness,
judicial economy, and convenience.
Camelio, 137 F.3d at 672.
These factors are best understood, however, not as the primary
controlling considerations on a remand of state law claims,
which are set forth under 28 U.S.C. § 1367(c) and analyzed
above, but as “exceptional circumstances” under the last
statutory factor, § 1367(c)(4).
The court addresses these “exceptional circumstance”
factors, some of which cut both ways, below.
Comity.
The most important factor to this court’s thinking
under the circumstances present in this case, here favors
remand.
“[N]eedless decisions of state law should be avoided
both as a matter of comity and to promote justice between the
parties, by procuring for them a surer-footed reading of
applicable law.
This is particularly true of interpretations of
state constitutions.”
Desjardins, 777 F.3d at 46 (citations and
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quotations omitted) (emphasis added)).
Of course, it goes
without saying that the Superior Court is more than capable of
analyzing and applying any applicable federal law.
Fairness.
Fairness is the context for the defendants’ main
forum manipulation concerns.
Although the defendants have
expressed some concern that the plaintiffs may resurrect their
claims under the United States Constitution, the court credits
the representations of the League of Women Voters’s counsel,
made in response to direct questioning from the court during the
September 1 telephonic hearing, that plaintiffs will not do so.5
See supra n. 1.
The defendants also contend that it would not
be fair to remand the actions for reasons relating to proceeding
on an expedited schedule, arguing that “the plaintiff’s forummanipulation attempts are going to make it impossible for the
State to be prepared to do anything on Wednesday, September 6,
2017, in state court except to request on an emergency basis
that the case be structured for briefing and that one or more
days be set aside for an evidentiary hearing.”
No counsel of
record in this case could advise the court if the September 6
hearing is still on the Superior Court’s schedule.
If it is,
that hearing date was presumably set with the defendants’ input,
The court, again, presumes that counsel for the New Hampshire
Democratic Party would not undertake such action either.
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or if not, at least with their knowledge well before the date
they removed the case to this court.
And while the plaintiffs
may have waited a length of time to bring the suits, the
defendants (who, from their memoranda, appear to believe the
federal court’s involvement is crucial) also waited over half of
the two-week period between the beginning of the suit and the
injunction hearing date to remove the case, with only 2 business
days (and in fairness, an intervening holiday weekend) remaining
before the hearing.
This is not to cast any aspersions on the motives of the
parties and counsel.
From the court’s perspective, all parties
and counsel are litigating in good faith to advance and protect
their respective interests.
While it is impossible to ignore
that the parties have different preferences with respect to
forum, the court draws no inferences of improper forum
manipulation from any of the conduct undertaken thus far:
the
plaintiffs’ initial choice to file these actions in state court,
the defendants’ lawful removal, the plaintiffs’ amendments and
resulting remand motions, or the defendants’ objections thereto.
The point is that the fairness considerations cut both
ways, and this court has every confidence that the Superior
Court Clerk has administered and scheduled the proceedings
fairly, will continue to do so, and that the Attorney General
and Secretary of State can and will represent the State’s
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interests competently and effectively as they have done in this
court on a very demanding schedule.
The defendants also raise substantive merits-related
arguments in the context of fairness.
In the absence of any
remaining federal claims and the early posture of these cases,
the court does not find these persuasive reasons to retain
supplemental jurisdiction.6
Judicial Economy.
Here, the defendants argue that
“jockeying from state court to federal court and back to state
court is a drain on the resources of the state judiciary, the
federal judiciary, and the parties.”
But this factor, of
course, will always discourage remand of state law claims in
cases such as this involving quick post-removal nonsuits or
dismissals of federal claims.
It is better suited, and has more
utility, in cases where the federal court has invested
substantial judicial time and resources into consideration of
While expressing no opinion on its merits, the court would be
remiss not to acknowledge one potentially significant
observation in the defendants’ memorandum of law. Defendants
point out that the pending preliminary-injunction motion mostly
invokes the United States Constitution, that “the plaintiff
relies heavily on either federal law or state law interpreting
federal law,” and that “the remaining substantive legal
citations in the memorandum of law are almost exclusively
federal court cases.” To the extent the plaintiffs’ dismissal
of their federal claims will impact their ability to make a
likelihood-of-success showing to satisfy their preliminary
injunction burden in Superior Court, the plaintiffs will be
required to live with the litigation choices they have made.
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the state law claims or the case in general.
It has little
force here, where the first half of the jockeying (here lawfully
undertaken by the party opposing remand) took place only a few
days ago and the court has invested relatively few resources in
the case.
Convenience.
Here, the defendants’ arguments mirror their
fairness-related arguments involving the burdens of the
impending Superior Court preliminary injunction hearing,
addressed supra, which the court will not address again here.
The defendants’ only other convenience-oriented argument is that
a remand order will only further delay the case.
That
contention is unsupportable, given that the September 6 Superior
Court hearing date (if still pending) is earlier than the
hearing date it desired in this court.
Remand, if anything,
resurrects the possibility of an earlier resolution of the
plaintiffs’ request for injunctive relief.
CONCLUSION
Accordingly, the court GRANTS plaintiffs’ motions to remand
both of these actions to Hillsborough County Superior Court.7
Civil no. 17-cv-395-JL doc. no. 9; civil no. 17-v-396-JL doc.
no. 6.
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SO ORDERED.
____________________________
Joseph N. Laplante
United States District Judge
Dated:
cc:
September 3, 2017
Henry Klementowicz, Esq.
Paul J. Twomey, Esq.
Steven J. Dutton, Esq.
William E. Christie, Esq.
Anthony Galdieri, Esq.
Anne M. Edwards, Esq.
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