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.

New Hampshire Secretary of State, et al.

NH Democratic Party

v. Civil No. 17-cv-396-JL Opinion No.

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

(federal question). See

.

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,

(1st

Cir. 2007) (quoting Kokkonen v. Guardian Life Ins. Co. of Am.,

(1994)). “When federal claims are dismissed

before trial, state claims are normally dismissed as well.”

McInnis-Misenor v. Maine Med. Ctr.,

(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

1 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.

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.,

(1st Cir. 1990). Because the court

retains supplemental jurisdiction over the state claims, see

(a), it remains “discretionary with the district

court whether to remand the state claims,” Ching,

.

“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.

(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,

(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. See 28 U.S.C.

3 § 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.,

(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

(c)(1); Desjardins v. Willard,

(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,

(2015), is preempted under the United States

Supreme Court’s decisions . . . requir[ing] courts to test the

4 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.,

(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. 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. 3 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.

5 disturbing any congressionally approved balance of federal and

state judicial responsibilities.”

.

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,

(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,

, 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

4 This is not a case, such as Libertarian Party of N.H. v. Gardner,

(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.

6 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.,

(1st Cir. 1991), along with comity, fairness,

judicial economy, and convenience. Camelio,

.

These factors are best understood, however, not as the primary

controlling considerations on a remand of state law claims,

which are set forth under

(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,

(citations and

7 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 forum-

manipulation 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,

5 The court, again, presumes that counsel for the New Hampshire Democratic Party would not undertake such action either.

8 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

9 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

6 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.

10 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

7 Civil no. 17-cv-395-JL doc. no. 9; civil no. 17-v-396-JL doc. no. 6.

11 SO ORDERED.

____________________________ Joseph N. Laplante United States District Judge

Dated: September 3, 2017

cc: 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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