UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Paul Maravelias, Plaintiff
v. Case No. 19-cv-487-SM Opinion No. 2020 DNH 142
Justices of the N.H. Supreme Court And Gordon J. MacDonald, Attorney General of New Hampshire, Defendants
O R D E R
Pro se plaintiff, Paul Maravelias, brings this action
challenging the facial constitutional validity of New Hampshire
Supreme Court Rule 23 which, in limited circumstances,
authorizes the Supreme Court to award attorney’s fees to a
prevailing party. This court (Laplante, J.) previously
dismissed Maravelias’s state and federal “as applied”
constitutional challenges to that rule, as well as his claim
seeking monetary relief from recently-retired New Hampshire
Supreme Court Chief Justice Robert J. Lynn.
As defendants, Maravelias has named New Hampshire Attorney
General Gordon J. MacDonald, in both his individual and official
capacities. He has also named the Justices of the New Hampshire Supreme Court, but exclusively in their individual capacities.
All defendants have moved to dismiss the claims against them,
asserting that none states a viable cause of action. For the
reasons discussed, those motions to dismiss are granted.
Standard of Review
I. Motions to Dismiss.
In considering a motion to dismiss, the court accepts all
well-pleaded facts alleged in the complaint as true,
disregarding legal labels and conclusions, and resolves
reasonable inferences in the plaintiff’s favor. Galvin v. U.S.
Bank, N.A., 852 F.3d 146, 155 (1st Cir. 2017). To avoid
dismissal, the complaint must allege sufficient facts to support
a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). To satisfy the “plausibility standard,” the factual
allegations in the complaint, along with reasonable inferences,
must show more than a mere possibility of liability – “a
formulaic recitation of the elements of a cause of action will
not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
See also Lyman v. Baker, 954 F.3d 351, 359–60 (1st Cir. 2020)
(“For the purposes of our [12(b)(6)] review, we isolate and
ignore statements in the complaint that simply offer legal
labels and conclusions or merely rehash cause-of-action
elements.”) (citation and internal punctuation omitted).
2 In other words, the complaint must include well-pled (i.e.,
non-conclusory, non-speculative) factual allegations that, if
assumed to be true, allow the court to draw the reasonable and
plausible inference that the plaintiff is entitled to the relief
sought. See Tasker v. DHL Retirement Savings Plan, 621 F.3d 34,
38-39 (1st Cir. 2010).
II. Facial Constitutional Challenges.
Maravelias’s challenge to Rule 23’s constitutionality is a
facial one (rather than an “as applied” challenge).
A facial attack tests a law’s constitutionality based on its text alone and does not consider the facts or circumstances of a particular case. An as-applied attack, in contrast, does not contend that a law is unconstitutional as written but that its application to a particular person under particular circumstances deprived that person of a constitutional right.
Cutting v. City of Portland, No. 2:13-CV-359-GZS, 2014 WL
580155, at *5 (D. Me. Feb. 12, 2014) (quoting United States v.
Marcavage, 609 F.3d 264, 273 (3d Cir. 2010)). See also McGuire
v. Reilly, 386 F.3d 45, 57 (1st Cir. 2004) (“The nature of
plaintiffs’ facial attack . . . turns not on the historical
facts of how the statute has been applied, but on the words of
the statute.”).
3 “Facial challenges are disfavored for several reasons.”
Washington State Grange v. Washington State Republican Party,
552 U.S. 442, 450–51 (2008) (noting that such challenges often
rest on speculation, risk premature interpretation of statutes
based upon factually incomplete records, run contrary to
fundamental principles of judicial restraint, and threaten to
short-circuit the democratic process by preventing enforcement
of laws and rules implemented in a manner consistent with the
Constitution).
To prevail on one or more of his claims, Maravelias would
have to establish that “no set of circumstances exists under
which [Rule 23] would be valid, or that the [rule] lacks any
plainly legitimate sweep.” United States v. Stevens, 559 U.S.
460, 472 (2010) (citations and internal punctuation omitted).
See also United States v. Salerno, 481 U.S. 739, 745 (1987) (“A
facial challenge to a legislative Act is, of course, the most
difficult challenge to mount successfully, since the challenger
must establish that no set of circumstances exists under which
the Act would be valid. The fact that the [challenged statute]
might operate unconstitutionally under some conceivable set of
circumstances is insufficient to render it wholly invalid, since
we have not recognized an ‘overbreadth’ doctrine outside the
limited context of the First Amendment.”).
4 In the limited context of a First Amendment facial
challenge, the “Court recognizes a second type of facial
challenge, whereby a law may be invalidated as overbroad if a
substantial number of its applications are unconstitutional,
judged in relation to the statute’s plainly legitimate sweep.”
Stevens, 559 U.S. at 473 (citation and internal punctuation
omitted).
Background
Because Maravelias’s sole remaining claims advance only a
facial challenge to Rule 23, the factual circumstances that
brought him to this court (and those that made him subject to a
Rule 23 fees award in the New Hampshire Supreme Court) are not
particularly relevant. They are, nonetheless, illustrative of
the manner in which the New Hampshire Supreme Court interprets
and applies Rule 23. Those prior interpretations of Rule 23
also obviate any need for this court to certify questions to the
New Hampshire Supreme Court regarding proper construction of
that rule. See generally Attorney General’s Memorandum of Law
(document no. 19-1) at 8. In brief, those facts are as follows.
In 2017, Maravelias was subject to a stalking order issued
by the New Hampshire Circuit Court, pursuant to N.H. Rev. Stat.
Ann. (“RSA”) 633:3-a. That order prevented Maravelias from
5 having any contact with a young woman named Christina.
Maravelias challenged that original order, eventually resulting
in an appeal to the New Hampshire Supreme Court that was denied
on the merits. In January of 2018, Christina moved the state
court to extend the stalking order for another year. Following
a three-day bench trial (at which Maravelias appeared, pro se,
and extensively cross-examined Christina), the court granted
Christina’s motion. Maravelias appealed to the New Hampshire
Supreme Court, which affirmed the lower court’s decision to
extend the protective order against Maravelias. Maravelias
attempted to challenge the constitutionality of that order in
federal court, but his case was dismissed under the Rooker-
Feldman doctrine. Maravelias v. Coughlin, No. 19-CV-143-SM,
2019 WL 5698703 (D.N.H. Nov. 4, 2019).
Meanwhile, Maravelias filed a stalking petition of his own
against Christina’s father. Following a bench trial in the New
Hampshire Circuit court, his petition was denied. Subsequently,
Christina’s father moved the court for an award of attorney’s
fees, supported by an affidavit itemizing legal expenses
totaling approximately $9,000. The court granted that request,
finding that Maravelias’s “stalking petition . . . was
oppressive, vexatious, arbitrary, capricious and/or in bad
6 faith” and that his “positions were patently unreasonable.”
Maravelias moved for reconsideration. That motion was denied.
Maravelias appealed to the New Hampshire Supreme Court,
challenging both the denial of his stalking petition against
Christina’s father and the trial court’s order that he pay the
father’s attorney’s fees. The New Hampshire Supreme Court
affirmed both of the lower court’s orders. As part of his
requested relief before the Supreme Court, Christina’s father
sought an award of attorney’s fees related to the meritless
appeal. Of significance to this litigation, the Supreme Court
initially denied that request, ruling that, “To the extent that
the defendant requests attorney’s fees . . . the request is
denied without prejudice to the defendant moving for attorney’s
fees pursuant to Supreme Court Rule 23.” (document no. 7-1).
Rule 23 provides that:
In the interest of justice in extraordinary cases, but not as a matter of right, the supreme court in its sole discretion may award attorneys’ fees related to an appeal to a prevailing party if the appeal is deemed by the court to have been frivolous or in bad faith.
Supreme Court Rules, Rule 23, Taxation of Costs; Waiver;
Attorney’s Fees. Rule 23 is, in turn, governed by Rule 21,
which requires that any motion to the court shall “state with
7 particularity the grounds on which it is based and the order or
relief sought.” It also affords the non-movant the opportunity
to respond with argument, a memorandum of law, affidavits, or
“other papers” in support of the objections.
In response to the Supreme Court’s order, Christina’s
father filed a “Request for Taxation of Costs and the Award of
Attorney’s Fees,” pursuant to Rule 23 (document 7-4). As
permitted by the New Hampshire Supreme Court Rules, Maravelias
was afforded an opportunity to be heard. He availed himself of
that opportunity and filed a lengthy objection to the motion
seeking fees (document no. 7-5). After due consideration, the
New Hampshire Supreme Court granted the motion for fees and set
a deadline by which Christina’s father was required to file a
detailed itemization of attorney’s fees he had incurred
(document no. 7-9). Maravelias moved the court to reconsider
that order awarding fees, again filing a lengthy memorandum in
support of his arguments (document no. 7-10). Christina’s
father then submitted an “Affidavit of Attorney’s Fees”
(document no. 7-11), documenting the expenditure of $4,900 in
legal fees “in the defense of this appeal.”
By order dated March 29, 2019 (document no. 7-12), the New
Hampshire Supreme Court denied Maravelias’s motion for
8 reconsideration and, pursuant to Rule 23, granted the
defendant’s motion for an award of attorney’s fees in the amount
of $4,900.
Again, while Maravelias’s personal experience with Rule 23
is not entirely relevant to his facial constitutional challenge,
it does shed light on the manner in which the New Hampshire
Supreme Court interprets and applies that rule. Here,
Maravelias was given both notice of the defendant’s request for
attorney’s fees, as well as an opportunity to brief that issue
and respond to the defendant’s arguments. Indeed, when the
court ruled against him, Maravelias filed a motion for
reconsideration, supported by a legal memorandum, expounding
upon the grounds for his objections. After considering the
arguments raised by the parties, the New Hampshire Supreme Court
issued a written decision resolving the parties’ dispute.
Plainly, then, as applied to Maravelias, Rule 23 worked no
deprivation of his constitutionally protected rights. He was
afforded due process, he plainly understood the conduct for
which he was being sanctioned, the existence of Rule 23 did not
chill his protected speech, and the sanction imposed against him
was measured and proportional – undeniably, not in violation of
the Eighth Amendment.
9 Discussion
In his Second Amended Complaint,1 Maravelias advances four
challenges to the facial constitutional validity of Supreme
Court Rule 23. Specifically, he asserts that the rule, as
written: violates the Fourteenth Amendment’s Due Process Clause;
is unconstitutionally vague, in violation of the Fourteenth
Amendment; violates the First Amendment insofar as it chills
citizens’ rights of free speech and to petition the government;
and, violates the Excessive Fines Clause of the Eighth
Amendment.
Procedurally, Maravelias’s complaint fails for several
reasons. First, he has named the individual Justices of the
Supreme Court in their personal, rather than official,
capacities. Based upon the legal arguments advanced in his
memoranda, it is apparent that Maravelias did so knowingly and
intentionally. But, as correctly noted in the Justices’ legal
memoranda (documents no. 20 and 27), a facial challenge to a
1 After dismissing most of Maravelias’s claims, this court (Laplante, J.) afforded Maravelias the opportunity to amend his complaint to more fully describe his claim that Rule 23 is facially unconstitutional (a claim that was not, at that time, the focus of defendants’ motions to dismiss). Maravelias availed himself of that opportunity and filed his second amended complaint. After that amended pleading was filed, Judge Laplante recused himself and the case was randomly reassigned to me.
10 rule of the New Hampshire Supreme Court is an action against the
court itself, not its individual members. And, for the reasons
set forth in the Attorney General’s memoranda (documents no. 19-
1 and 26), the New Hampshire Attorney General is not a proper
party to an action challenging the facial constitutional
validity of a rule of court.2
On a substantive level, the Second Amended Complaint fails
to set forth the essential elements of a plausible and viable
claim that Rule 23 violates any of the constitutional provisions
identified by Maravelias. When federal courts construe statutes
(and, by extension, rules of court), “the elementary rule is
that every reasonable construction must be resorted to, in order
to save a statute from unconstitutionality.” Edward J.
DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const. Trades
Council, 485 U.S. 568, 575 (1988) (quoting Hooper v. California,
155 U.S. 648, 657 (1895)). See also United States v. Gendron,
18 F.3d 955, 959 (1st Cir. 1994) (noting the obligation of
2 Additionally, although not pressed by the defendants, there is some question as to whether Maravelias has standing to challenge the facial constitutionality of a court rule which imposed no deprivation of constitutional rights upon him. See, e.g., Signs for Jesus v. Town of Pembroke, NH, 230 F. Supp. 3d 49, 57–58 (D.N.H. 2017). See generally Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 796–801 (1984). The court has, nevertheless, assumed Maravelias’s standing.
11 federal courts to interpret statutes “so that they are
consistent with the federal Constitution whenever possible”).
As Maravelias’s own experience bears out, Rule 23 requires
that a party be given notice (by presentment of a well-supported
motion for fees) and an opportunity to respond (by means of an
objection and supporting memorandum) before any award of
attorney’s fees may be entered. Maravelias’s experience is not
unique. See, e.g., Crawford v. Town of Gilford, No. 2018-0605,
2019 WL 2371966, at *3 (N.H. May 31, 2019) (denying party’s
request for fees raised in their appellate brief, without
prejudice to submitting a properly supported request pursuant to
Rule 23); Fowler v. Best Rate Real Estate, LLC, No. 2017-0338,
2018 WL 2225116, at *5 (N.H. May 16, 2018) (same); Chalifoux v.
Chalifoux, No. 2016-0549, 2017 WL 4770563, at *4 (N.H. Sept. 19,
2017) (same).
The Second Amended Complaint does not plausibly allege that
Rule 23 is, on its face, violative of litigants’ substantive or
procedural due process rights. When read in conjunction with
Rule 21 – as it must be – Rule 23 is not inconsistent with
protections afforded by the Fourteenth Amendment.
12 Similarly, Maravelias’s claim that Rule 23 is
unconstitutionally vague is without legal merit. Maravelias
takes issue with the rule’s use of the terms “frivolous” and
“bad faith,” saying that people of ordinary prudence could not
discern what types of conduct might expose them to an award of
fees under Rule 23. But, the New Hampshire Supreme Court has
specifically (and repeatedly) defined the terms “frivolous” and
“bad faith,” so a person of typical intelligence should know
precisely the kind of abusive and/or frivolous conduct that will
expose them to Rule 23 sanctions. See, e.g., Kukene v.
Genualdo, 145 N.H. 1, 3 (2002) (“A party pursues a claim in bad
faith if the claim is frivolous. A frivolous claim lacks any
reasonable basis in the facts provable by evidence, or any
reasonable claim in the law as it is, or as it might arguably be
held to be.”) (citations and internal punctuation omitted). See
generally Hightower v. City of Bos., 693 F.3d 61 (1st Cir. 2012)
(rejecting facial challenge to firearm permitting statute’s
“suitability” requirement as unconstitutionally vague); Draper
v. Healey, 827 F.3d 1, 4 (1st Cir. 2016) (“‘Fair’ notice is
understood as notice short of semantic certainty. Because words
are rough-hewn tools, not surgically precise instruments, some
degree of inexactitude is acceptable in statutory language.”).
13 Finally, largely for the reasons set forth in the Attorney
General’s legal memoranda, Maravelias’s assertions that Rule 23
unconstitutionally chills free speech and/or runs afoul of the
First Amendment’s right-to-petition clause (a claim he
acknowledges is “minimally distinguishable from” his vagueness
claim) fails to state a viable claim.3
The same is true with respect to his assertion that, on its
face, Rule 23 violates the Eighth Amendment’s prohibition
against excessive fines. See generally United States v.
Bajakajian, 524 U.S. 321, 334 (1998) (“The touchstone of the
constitutional inquiry under the Excessive Fines Clause is the
principle of proportionality: The amount of the [fine] must bear
some relationship to the gravity of the offense that it is
designed to punish.”) (citation and internal punctuation
omitted). Consequently, to be violative of the Eighth
Amendment, a fine would have to be “grossly disproportional to
3 As expressed in his motion for reconsideration of the attorney’s fees award that he filed with the New Hampshire Supreme Court (document no. 7-10), Maravelias’s “chilling” argument with respect to Rule 23 seems to be as follows: “If you force me to pay [Christina’s father’s] appeal fees, the New Hampshire Public will know their Supreme Court is nothing more than a bunch of butthurt bullies who rule according to their childish emotions. People will be terrified to exercise their legal right to appeal; already, they will be terrified to file meritorious stalking petitions where the gender politics don’t jive with this Holy Feminist Court, given your outrageous underlying ruling in this appeal.”
14 the gravity of the defendant’s offense.” Id. An award equal to
the amount of attorney’s fees reasonably incurred by an opposing
party in responding to an appeal that was frivolous and/or
pursued in bad faith falls well short of that constitutional
limit.
Conclusion
None of the claims advanced in the second amended complaint
plausibly alleges that “no set of circumstances exists under
plainly legitimate sweep.” United States v. Stevens, 559 U.S.
at 472 (citations and internal punctuation omitted).
Maravelias’s First Amendment challenges fails to plausibly
allege that “a substantial number of [Rule 23’s] applications
are unconstitutional, judged in relation to the [rule’s] plainly
legitimate sweep.” Id. at 473 (citation and internal
punctuation omitted). That one might conjure some rare,
unusual, or extreme hypothetical situation under which Rule 23
could conceivably run afoul of constitutional protections is
insufficient to state a viable facial challenge to that rule.
For the foregoing reasons, as well as those set forth in
defendants’ comprehensive and well-supported legal memoranda
(documents no. 19-1, 20, 26, and 27), Attorney General Gordon
15 MacDonald’s motion to dismiss (document no. 19), as well as the
motion to dismiss submitted by the Justices of the New Hampshire
Supreme Court (document no. 20), are granted. The Clerk of
Court shall enter judgment in accordance with this order and
close the case.
SO ORDERED.
____________________________ Steven J. McAuliffe United States District Judge
August 13, 2020
cc: Paul Maravelias, pro se Nancy J. Smith, Esq. Samuel R. V. Garland, Esq.