UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Paul Maravelias, Plaintiff

v. Case No. 19-cv-487-SM Opinion No.

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.,

(1st Cir. 2017). To avoid

dismissal, the complaint must allege sufficient facts to support

a plausible claim for relief. Ashcroft v. Iqbal,

(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,

(2007).

See also Lyman v. Baker,

, 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,

(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,

, at *5 (D. Me. Feb. 12, 2014) (quoting United States v.

Marcavage,

(3d Cir. 2010)). See also McGuire

v. Reilly,

(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,

, 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,

(2010) (citations and internal punctuation omitted).

See also United States v. Salerno,

(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,

(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,

(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,

(1988) (quoting Hooper v. California,

(1895)). See also United States v. Gendron,

(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,

, 57–58 (D.N.H. 2017). See generally Members of City Council of City of Los Angeles v. Taxpayers for Vincent,

, 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,

, 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,

, at *5 (N.H. May 16, 2018) (same); Chalifoux v.

Chalifoux, No. 2016-0549,

, 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,

(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.,

(1st Cir. 2012)

(rejecting facial challenge to firearm permitting statute’s

“suitability” requirement as unconstitutionally vague); Draper

v. Healey,

(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,

(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.”

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

which [Rule 23] would be valid, or that the [rule] lacks any

plainly legitimate sweep.” United States v. Stevens,

(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.”

(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.

16