Common Cause v. Lewis

358 F.Supp.3d 505

COMMON CAUSE; North Carolina Democratic; Paula Ann Chapman; Howard DuBose; George David Gauck; James Mackin Nesbit; Dwight Jordan ; Joseph Thomas Gates; Mark S. Peters; Pamela Morton; Virginia Walters Brien; John Mark Turner; Leon Charles Schaller; Edwin M. Speas, Jr.; Rebecca Harper; Lesley Brook Wischmann; David Dwight Brown; Amy Clare Oseroff; Kristin Parker Jackson; John Balla; Rebecca Johnson; Aaron Wolff; Mary Ann Peden-Coviello; Karen Sue Holbrook; Kathleen Barnes; Ann McCracken; Jackson Thomas Dunn, Jr.; Alyce Machak; William Service ; Donald Rumph; Stephen Douglas McGrigor; Nancy Bradley ; Vinod Thomas; Derrick Miller; Electa E. Person; Deborah Anderson Smith; Rosalyn Sloan; Julie Ann Frey; Lily Nicole Quick; Joshua Brown; and Carlton E. Campbell, Sr., Plaintiffs,

v.Representative David R. LEWIS in His Official Capacity as Senior Chairman of the House Select Committee on Redistricting; Senator Ralph E. Hise, Jr. in His Official Capacity as Chairman of the Senate Committee on Redistricting; Speaker of the House Timothy K. Moore; Andy Penry Chairman of the North Carolina State Board of Elections and Ethics Enforcement; Joshua Malcolm Vice-chair of the North Carolina State Board of Elections & Ethics Enforcement; Ken Raymond Secretary of the North Carolina State Board of Elections & Ethics Enforcement; Stella Anderson Member of the North Carolina State Board of Elections & Ethics Enforcement; President Pro Tempore of the North Carolina Senate Philip E. Berger; the State of North Carolina; the North Carolina State Board of Elections and Ethics Enforcement; Damon Circosta Member of the North Carolina State Board of Elections & Ethics Enforcement; Stacy "Four" Eggers, IV Member of the North Carolina State Board of Elections & Ethics Enforcement; Jay Hemphill Member of the North Carolina State Board of Elections & Ethics Enforcement; Valerie Johnson Member of the North Carolina State Board of Elections & Ethics Enforcement; John Lewis Member of the North Carolina State Board of Elections & Ethics Enforcement; the North Carolina State Board of Elections and Ethics Enforcement; Robert Cordle Member of the North Carolina State Board of Elections & Ethics Enforcement, Defendants.

NO. 5:18-CV-589-FL

United States District Court, E.D. North Carolina, Western Division.

Signed January 7, 2019

Common Cause, pro se.

North Carolina Democratic Party, pro se.

Paula Ann Chapman, pro se.

Howard DuBose, pro se.

George David Gauck, pro se.

James Mackin Nesbit, pro se.

Dwight Jordan, pro se.

Joseph Thomas Gates, pro se.

Mark S. Peters, pro se.

Pamela Morton, pro se.

Virginia Walters Brien, pro se.

John Mark Turner, pro se.

Leon Charles Schaller, pro se.

Rebecca Harper, pro se.

Lesley Brook Wischmann, pro se.

David Dwight Brown, pro se.

Amy Clare Oseroff, pro se.

Kristin Parker Jackson, pro se.

John Balla, pro se.

Rebecca Johnson, pro se.

Aaron Wolff, pro se.

Mary Ann Peden-Coviello, pro se.

Karen Sue Holbrook, pro se.

Kathleen Barnes, pro se.

Phillip J. Strach, Ogletree Deakins Nash Smoak & Stewart, P.C., Raleigh, NC, for Defendants.

MEMORANDUM OPINION

LOUISE W. FLANAGAN, United States District JudgeThis matter came before the court on plaintiffs' emergency motion for remand (DE 5). On January 2, 2019, the court granted the motion, remanded the matter to state court, and denied plaintiffs' request for costs and expenses under 28 U.S.C. § 1447(c).¹ The court memorializes herein its reasoning for this decision.

STATEMENT OF THE CASE

Plaintiffs commenced this action in Superior Court of Wake County on November 13, 2018, and filed amended complaint on December 7, 2018, asserting that districting plans enacted by the North Carolina General Assembly in 2017 for the North Carolina House of Representatives and Senate (the "2017 Plans") are unconstitutional and invalid under the North Carolina Constitution. Plaintiffs seek the following relief from the state court, sitting as a three-judge panel:

a. Declare that each of the 2017 Plans is unconstitutional and invalid because each violates the rights of Plaintiffs and all Democratic voters in North Carolina under the North Carolina Constitution's Equal Protection Clause, Art. I, § 19; Free Elections Clause, Art. I, § 5; and Freedom of Speech and Freedom of Assembly Clauses, Art. I, §§ 12 & 14;

b. Enjoin Defendants, their agents, officers, and employees from administering, preparing for, or moving forward with the 2020 primary and general elections for the North Carolina General Assembly using the 2017 Plans;

c. Establish new state House and state Senate districting plans that comply with the North Carolina Constitution, if the North Carolina General Assembly fails to enact new state House and state Senate districting plans comporting with the North Carolina Constitution in a timely manner;d. Grant Plaintiffs such other and further relief as the Court deems just and appropriate.

(Am. Compl. p.75).²

Plaintiffs are Common Cause, the North Carolina Democratic Party, and 38 individual registered Democrat voters. Defendants Representative David R. Lewis; Senator Ralph E. Hise, Jr.; Speaker of the House Timothy K. Moore; and President Pro Tempore of the North Carolina Senate Philip E. Berger, are members of the North Carolina Senate and House named in their official capacities (collectively, the "Legislative Defendants"). Additional defendants are the State of North Carolina, the North Carolina State Board of Elections and Ethics Enforcement, and individual officers and members of the North Carolina State Board of Elections and Ethics Enforcement (collectively, the "State Defendants").³

On December 14, 2018, the Legislative Defendants filed a notice of removal in this court. The notice of removal states that it is filed also on behalf of the State of North Carolina in the following respect: "Pursuant to N.C. Gen. Stat. § 1-72.2, the legislative branch of North Carolina state government is considered the ‘State of North Carolina’ in actions challenging statutes enacted by the North Carolina General Assembly along with the executive branch of state government." (Notice of Removal (DE 1) at 3 n. 1).⁴ The notice of removal is signed by counsel who has entered an appearance on behalf of the Legislative Defendants. (Id. at 16; Notices of Appearance (DE 2, 3) ). Attached to the notice of removal are copies of the state court pleadings and certain documents filed in state court,⁵ as well as the Legislative Defendants' state court notice of filing of notice of removal.

Plaintiffs filed an emergency motion to remand on December 17, 2018. In support of the motion, plaintiffs filed a memorandum attaching the following documents: 1) acceptance of service filed in state court on November 19, 2018, on behalf of the State Defendants; 2) plaintiffs' motion filed in state court on November 20, 2018, for expedited discovery and trial and for case management order; 3) emails between state trial court administrator and counsel; and 4) certain district court and Supreme Court filings made in Covington v. North Carolina, No. 15-CV-399 (M.D.N.C.) ("Covington").

On December 18, 2018, the court set a December 28, 2018, deadline for any responses to the motion to remand. The Legislative Defendants filed an answer to the complaint on December 21, 2018. On the same date, the State Defendants moved for extension of time to answer.

On December 28, 2018, the State Defendants responded to the motion to remand, stating that they agree the matter should be remanded.⁶ That same date, the Legislative Defendants filed a response in opposition to remand, attaching documents filed in Covington, and two other cases: 1) Dickson v. Rucho, 11 CVS 16896 (Superior Court of Wake County), and 2) Stephenson v. Bartlett, 4:01-CV-171-H (E.D.N.C.). Plaintiffs replied in support of remand on December 30, 2018, relying upon a North Carolina Senate hearing transcript.

On January 2, 2019, the court granted plaintiffs' motion to remand, stating:

This matter is before the court on plaintiffs' emergency motion to remand (DE 5). The court having fully considered the matter and the briefing by the parties, it is hereby ORDERED that plaintiffs' motion is GRANTED. This case is REMANDED to the General Court of Justice, Superior Court Division, Wake County, North Carolina, for further proceedings. The court DENIES plaintiffs' request for costs and expenses under 28 U.S.C. § 1447(c). A memorandum opinion memorializing the court's reasoning for this decision will follow. In light of remand, the clerk is DIRECTED to terminate as moot the pending motion for extension of time to file answer (DE 34).

(Order (DE 44) at 3).

COURT'S DISCUSSION

A. Standard of Review

In any case removed from state court, "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). "The burden of establishing federal jurisdiction is placed upon the party seeking removal." Mulcahey v. Columbia Organic Chemicals Co., 29 F.3d 148, 151 (4th Cir. 1994). "Because removal jurisdiction raises significant federalism concerns, [the court] must strictly construe removal jurisdiction." Id."If federal jurisdiction is doubtful, a remand is necessary." Id.; see Palisades Collections LLC v. Shorts, 552 F.3d 327, 336 (4th Cir. 2008) (recognizing the court's "duty to construe removal jurisdiction strictly and resolve doubts in favor of remand").

B. Analysis

The Legislative Defendants rely upon two independent statutory provisions as a basis for removal, which the court will address in turn below.

1. 28 U.S.C. § 1443(2)

The Legislative Defendants assert that removal is appropriate under a subsection of 28 U.S.C. § 1443 that provides for removal of state-court actions against a defendant "for refusing to do any act on the ground that it would be inconsistent with" any "law providing for equal rights." (Notice of Removal ¶ 6).

Section 1443 provides in its entirety as follows:

Any of the following civil actions or criminal

...