Senators v. Gardner, et al.

2002 DNH 106

• Court: District Court, D. New Hampshire
• Decided: May 29, 2002
• Docket: CV-02-244-M
• Status: Published

Opinion

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.