West Virginia Citizens Defense League, Inc. v. City of Martinsburg et al

Filing 27

ORDER OF ABSTENTION. This action is STAYED so that Plaintiff can present its state law issues to state court. Signed by Chief Judge John Preston Bailey on 9/6/2011. (tlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Martinsburg

WEST VIRGINIA CITIZENS DEFENSE
LEAGUE, INC., a West Virginia municipal
corporation,
Plaintiff,
v.

Civil Action No. 3:11-CV-5
Judge Bailey

CITY OF MARTINSBURG, a West
Virginia municipal corporation, GEORGE
KAROS, personally and in his official
capacity as Mayor of the City of Martinsburg,
MARK S. BALDWIN, personally and in his official
capacity as City Manager of the City of Martinsburg,
and KEVIN MILLER, personally and in his official
capacity as Chief of Police of the City of Martinsburg,
Defendants.

ORDER OF ABSTENTION
This action was filed on January 24, 2011, challenging the constitutionality of
Martinsburg City Code § 545.14, which prohibits the possession of a firearm or other deadly
weapon in any building owned, leased or under the care, custody, and control of the City
of Martinsburg (Doc. 3). The Complaint contains six counts, asserting: (1) that the
provision is unconstitutionally vague under the due process clause of the Fourteenth
Amendment; (2) that the provision is unconstitutionally vague under the due process clause
of the West Virginia Constitution; (3) that the provision violates the right of an individual to
keep and bear arms under the Second and Fourteenth Amendments; (4) that the provision
violates the right of an individual to keep and bear arms under Article III, § 22 of the West
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Virginia Constitution; (5) that the provision is preempted by state statute; and (6) that the
provision is unauthorized by state statute and invalid as a matter of law (Doc. 3).
The Complaint seeks an injunction from enforcing the provision, declaratory relief,
and attorneys fees and costs (Doc. 3).
On March 29, 2011, the defendants filed Defendants’ Pre-Answer Motion to Dismiss
(Doc. 12), seeking dismissal for lack of standing.
After finding sufficient standing and denying the Motion, this Court noted that it
appeared “to this Court, however, that this might be an appropriate case for this Court to
abstain. This Court is aware that abstention represents ‘an extraordinary and narrow
exception to the duty of the District Court to adjudicate a controversy properly before it.’
Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 728 (1996), quoting Colorado River
Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976), in turn quoting
County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188 (1959). The issue of
abstention may be raised at any time sua sponte by the court. Schwarzer, Tashima &
Wagstaffe, Fed. Civil Procedure Before Trial [2:4390] (2011), citing Bellotti v. Baird, 428
U.S. 132, 143 (1976).” (Doc. 16).
Accordingly, this Court directed the parties to brief the issue of whether this Court
should abstain from consideration of this case until such time as the state courts have the
opportunity to address the state law challenges to the ordinance. The parties have
submitted their briefs, and this Court is now prepared to rule on the issue.
The facts and law of this case satisfy the criteria initially set forth in Railroad
Comm’n of Texas v. Pullman Co., 312 U.S. 496 (1941). In City of Meridian v. So. Bell
Tel. & Tel. Co., 358 U.S. 639 (1959), the Supreme Court stated:
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Proper exercise of federal jurisdiction requires that controversies involving
unsettled questions of state law be decided in the state tribunals preliminary
to a federal court's consideration of the underlying federal constitutional
questions. See Railroad Commission of Texas v. Pullman Co., 312 U.S.
496. That is especially desirable where the questions of state law are
enmeshed with federal questions.

Spector Motor Service, Inc. v.

McLaughlin, 323 U.S. 101, 105. Here, the state law problems are delicate
ones, the resolution of which is not without substantial difficulty-certainly for
a federal court. Cf. Thompson v. Magnolia Petroleum Co., 309 U.S. 478,
483. In such a case, when the state court's interpretation of the statute or
evaluation of its validity under the state constitution may obviate any need to
consider its validity under the Federal Constitution, the federal court should
hold its hand, lest it render a constitutional decision unnecessarily. Railroad
Commission of Texas v. Pullman Co., supra; Spector Motor Service Inc.
v. McLaughlin, supra, 323 U.S. 104-105. See Leiter Minerals, Inc. v.
United States, 352 U.S. 220, 228-229.
358 U.S. at 640-641.
In the case presently before this Court, the West Virginia constitutional provision,
Article III, § 22, differs from and is not the “mirror image” of the Second Amendment to the
United States Constitution. The courts were faced with a similar situation in Reetz v.
Bozanich, 397 U.S. 82 (1970). In that case, the Supreme Court held that the lower court
should have deferred, under the Pullman doctrine, since a state court decision construing
the state constitution and regulatory scheme “could conceivably avoid any decision under
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the Fourteenth Amendment and would avoid any possible irritant in the federal-state
relationship.” 397 U.S. at 87.
In AFA Distributing Co., Inc. v. Pearl Brewing Co., 470 F.2d 1210 (4th Cir. 1973),
the Fourth Circuit noted that “[i]n the application of the abstention doctrine, ‘no principle has
found more consistent or clear expression than that the federal courts should not adjudicate
the constitutionality of state enactments fairly open to interpretation until the state courts
have been afforded a reasonable opportunity to pass upon them.’ Harrison v. NAACP,
360 U.S. 167, 176 (1959). The well-settled doctrine that a federal court will not anticipate
a question of constitutional law and the special weight that doctrine carries in the
maintenance of harmonious federal-state relations requires that a district court stay its
proceedings until a potentially controlling state-law issue is authoritatively put to rest.
United Gas Pipe Line Co. v. Ideal Cement Co., 369 U.S. 134 (1962); Baggett v. Bullitt,
377 U.S. 360 (1964); Louisiana Power & Light Co. v. Thibodaux, 360 U.S. 25 (1959).”
“Pullman abstention requires federal courts to abstain from deciding an unclear area
of state law that raises constitutional issues because state court clarification might serve
to avoid a federal constitutional ruling. England detailed the proper procedure for federal
courts to follow in Pullman cases: federal courts should retain jurisdiction over the case,
but stay the proceedings so that state courts can rule on the state law question. England
[v. La. Bd. of Med. Examiners], 375 U.S. [411] at 416 [1964]. If the state court fails to
resolve the issue, however, the parties may then return to federal court for a ruling on the
constitutional issue.” Nivens v. Gilchrist, 444 F.3d 237, 245-46 (4th Cir. 2006).
“Pullman abstention serves two primary goals: (1) avoiding constitutional questions
when their resolution is unnecessary, and (2) allowing state courts to decide issues of state
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law. See Pullman, 312 U.S. at 500.” Id. at 246.
In its brief, the defendants predictably favor abstention, while the plaintiff opposes
abstention. In its opposition, the plaintiff argues (1) that abstention is extraordinary and
unwarranted; (2) that similar constitutional issues are an insufficient ground for abstention;
and (3) certification is preferable to abstention.
This Court has already addressed why it believes that abstention is appropriate.
With respect to the second argument, this Court has already noted that the West Virginia
Constitutional provision is not the “mirror image” of the Second Amendment. In addition,
the plaintiff’s reliance on Examining Board v. Flores de Otero, 426 U.S. 572 (1976) is
misplaced. In Flores de Otero, the Supreme Court held that abstention was inappropriate
where the state constitutional provisions were “broad and sweeping.” 426 U.S. at 598.1
In th present case, the West Virginia constitutional provision is not “broad and
sweeping,” but rather is directly germane to the issues presented in this case.
With respect to the contention that certification is preferable to abstention, this Court
is aware of Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), in which the
Supreme Court held that:
Certification today covers territory once dominated by a deferral device called
“Pullman abstention,” after the generative case, Railroad Comm'n of Tex.
v. Pullman Co., 312 U.S. 496 (1941). Designed to avoid federal-court error

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In Flores de Otero, the Court was dealing with a Puerto Rico statute limiting the
practice of civil engineers to United States citizens. The licensing board argued that the
courts should have abstained to allow the statute to be construed under provisions in the
Puerto Rico Constitution providing that “No discrimination shall be made on account of
race, color, sex, birth, social origin or condition, or political or religious ideas” and “No
person in Puerto Rico shall be denied the equal protection of the laws.”
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in deciding state-law questions antecedent to federal constitutional issues,
the Pullman mechanism remitted parties to the state courts for adjudication
of the unsettled state-law issues. If settlement of the state-law question did
not prove dispositive of the case, the parties could return to the federal court
for decision of the federal issues. Attractive in theory because it placed
state-law questions in courts equipped to rule authoritatively on them,
Pullman abstention proved protracted and expensive in practice, for it
entailed a full round of litigation in the state court system before any
resumption of proceedings in federal court. See generally 17A C. Wright, A.
Miller, & E. Cooper, Federal Practice and Procedure §§ 4242, 4243 (2d
ed.1988 and Supp.1996).
Certification procedure, in contrast, allows a federal court faced with a novel
state-law question to put the question directly to the State's highest court,
reducing the delay, cutting the cost, and increasing the assurance of gaining
an authoritative response. See Note, Federal Courts-Certification Before
Facial Invalidation: A Return to Federalism, 12 W. New Eng. L.Rev. 217
(1990).
520 U.S. at 75-76.
While certification provides an attractive alternative to abstention in the appropriate
case, certification has not totally supplanted the doctrine of Pullman abstention. See
Nationwide Mut. Ins. Co. v. Unauthorized Practice of Law Committee, 283 F.3d 650
(5th Cir. 2002); Ford Motor Co. v. Meredith Motor Co., Inc., 257 F.3d 67 (1st Cir. 2001).
In Nationwide, the Fifth Circuit elected to affirm the district court’s decision to
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abstain and declined certification, stating that the Supreme Court of Texas “would be better
suited to answer this question with the benefit of records generated in state court . . . than
it would by receiving a certified question . . . with a relatively limited record on appeal.” 283
F.3d at 656-57.
Similarly, in Catlin v. Ambach, 820 F.2d 588, 591 (2d Cir. 1987), the Second Circuit
elected to abstain under Pullman rather than certify a state law issue to state court. (“We
deem abstention preferable to use of the new certification procedure because the resolution
of the state law issue might require factfinding in the state courts.”).
In this case, the delay occasioned by the use of abstention is ameliorated inasmuch
as the plaintiff has requested that this Court stay any decision on the merits until the
Supreme Court considers and acts upon the petition for certiorari filed in United States v.
Masciandaro, 638 F.3d 458 (4th Cir. 2011). (Doc. 21). The plaintiff acknowledges that
Masciandaro is adverse legal authority.
For the reasons stated above, this Court will abstain from ruling on the issues
presented by this case. This action will be stayed so that the plaintiff may present its state
law issues to state court. The Court notes that the plaintiff has filed a reservation under
England v. La. State Bd. of Med. Examiners, 375 U.S. 411, 421-22 (1964), reserving the
right to adjudicate the federal law issues in this Court. In the event that the state courts do
not resolve this case under state law, the plaintiff will be permitted to seek a ruling on the
federal issues in this Court.
This action is hereby STAYED.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record herein.
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DATED: September 6, 2011.

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