Senators v. Gardner, et a l . CV-02-244-M 05/29/02
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Senators Clifton Below;
Burt Cohen; Lou D'Allesandro;
George Disnard; Mark Fernald;
Beverly Hollinqworth;
Sylvia Larsen; Caroline McCarlev;
Daniel O'Neil; Debora Piqnatelli;
and Katherine Wheeler,
Plaintiffs
v. Civil No. 02-244-M
Opinion No. 2002 DNH 106
William M. Gardner, Secretary of State;
Senator Arthur P. Klemm, Jr., in his
Capacity as N.H. Senate President; and
The New Hampshire Senate,
Defendants
O R D E R
Two of three named defendants have removed this legislative
redistricting case from the New Hampshire Supreme Court to the
United States District Court for the District of New Hampshire.
See 28 U.S.C. §§ 1441 and 1443(2). Given the time-sensitive
nature of the issues presented and the compelling interest of the
State of New Hampshire in reapportioning its legislative
districts, the court has given this matter expedited
consideration.
Removal is improper for several reasons, and the case is
hereby remanded to the New Hampshire Supreme Court.
First, all defendants have not consented to removal, as is
required. See, e.g.. Hill v. Phillips, Barratt, Kaiser Enq'q,
Ltd., 586 F. Supp. 944, 945 (D. Me. 1984) ("Where there are
multiple defendants, all must consent to or join in the petition
for removal.") (citations omitted). Here, Secretary of State
Gardner has neither consented to nor joined in the removal
petition.
Second, although the underlying state court petition makes
passing reference to federal statutory and constitutional
provisions, it is plain that the petition seeks relief based
exclusively upon state constitutional and statutory authority.1
1 For example, plaintiffs in the underlying petition
assert that, "The legislature's failure and refusal to form
constitutionally valid senate districts prior to the close of the
2002 regular session should be declared a violation of Part 2,
Article 26 of the N.H. Constitution." Petition at 10.
Plaintiffs go on to assert that, "Part 1, Article 11 of the N.H.
Constitution guarantees the petitioners 'equal right to vote in
any election' and their 'equal right to be elected into office.'
See also N.H. Const., pt. 1, arts. 1 and 2. Further delay in
determining the boundaries of the 2002 senate districts could
deprive them of those fundamental rights." I d ., at 11.
2
The petition does not, in other words, present a "substantial
claim founded ''directly' upon federal law." Cox, v. Int'l Union
of Operating Enq'rs, 672 F.2d 421, 422 (5th Cir. 1982) (citation
omitted). Consequently, the relief petitioners seek in the New
Hampshire Supreme Court does not necessarily depend "on
resolution of a substantial question of federal law." Franchise
Tax Bd. v. Constr. Laborers Vacation Trust,
463 U.S. 1, 28
(1983). " [W]hat is essentially a state law claim cannot be
transformed into a federal one by the mere assertion, either
anticipated by plaintiffs or raised by defendants, of a federal
defense." Stephenson v. Bartlett,
180 F. Supp. 2d 779, 783
(E.D.N.C. 2001) (citing Louisville & Nashville R. Co. v. Mottlev,
211 U.S. 149, 152-53 (1908)). Accordingly, the petition is not
properly subject to this court's removal jurisdiction pursuant to
28 U.S.C. § 1441.
Finally, removal is not proper under 28 U.S.C. § 1443(2).
In short, defendants have failed to make even a colorable claim
that, if the New Hampshire Supreme Court is forced to intervene
and formulate a redistricting plan, defendants' compliance with
that plan would compel them to violate the Voting Rights Act, 42
3
U.S.C. § 1973. See Sexson v. Servaas,
33 F.3d 799, 803-04 (7th
Cir. 1994); Stephenson,
180 F. Supp. 2d at 784-85.
Of course, it probably should also be noted that if any
party were to file a discrete cognizable federal suit related to
redistricting in New Hampshire, it is well-settled federal policy
that federal courts should defer consideration of the merits of
such claims while state political and judicial branches are
effectively endeavoring to develop a constitutionally valid plan.
See, e.g., Growe v. Emison, 507 U.S. 25, 33-34 (1993); Scott v.
Germane,
381 U.S. 407, 409 (1965) .
Conclusion
To be sure, federal and state courts stand ready to decide
these matters when the political branches of government cannot,
or will not, fulfill those responsibilities entrusted to them by
the state's citizens. It is, however, certainly preferable that
the political branches do their utmost to resolve what are
essentially political questions, rather than abdicating
redistricting responsibilities to the courts.
4
Removal jurisdiction has not been effectively invoked. The
petition is, therefore, remanded to the New Hampshire Supreme
Court.
SO ORDERED.
Steven J. McAuliffe
United States District Judge
May 2 9, 2 0 02
cc: Clerk, New Hampshire Supreme Court
John P. Kacavas, Esq.
Barry J. Glennon, Esq.
Orville B. Fitch, II, Esq.
Charles G. Douglas, III, Esq.
Richard J. Lehmann, Esq.
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