St. of OH ex rel. Dana Skaggs v. Jennifer Brunner ( 2010 )


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  •                      RECOMMENDED FOR FULL-TEXT PUBLICATION
    Pursuant to Sixth Circuit Rule 206
    File Name: 10a0383p.06
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    _________________
    X
    -
    STATE OF OHIO ex rel. DANA SKAGGS and
    Relators-Appellants, --
    KYLE FANNIN,
    -
    No. 09-4282
    ,
    >
    -
    v.
    -
    -
    JENNIFER L. BRUNNER, Secretary of the State
    -
    of Ohio and THE BOARD OF ELECTIONS OF
    -
    Respondents-Appellees. -
    FRANKLIN COUNTY, OHIO,
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    N
    Appeal from the United States District Court
    for the Southern District of Ohio at Columbus.
    No. 08-01077—Algenon L. Marbley, District Judge.
    Argued: November 16, 2010
    Decided and Filed: December 16, 2010
    Before: KENNEDY, SUTTON and McKEAGUE, Circuit Judges.
    _________________
    COUNSEL
    ARGUED: Christopher J. Hogan, ZEIGER, TIGGES & LITTLE LLP, Columbus,
    Ohio, for Appellants. Richard N. Coglianese, OFFICE OF THE OHIO ATTORNEY
    GENERAL, Columbus, Ohio, for Appellees. ON BRIEF: Christopher J. Hogan, John
    W. Zeiger, Marion H. Little, Jr., ZEIGER, TIGGES & LITTLE LLP, Columbus, Ohio,
    for Appellants. Aaron D. Epstein, OFFICE OF THE OHIO ATTORNEY GENERAL,
    Columbus, Ohio, for Appellees.
    _________________
    OPINION
    _________________
    SUTTON, Circuit Judge. This is round two in a ballot-counting dispute arising
    from the 2008 elections in Franklin County, Ohio. In the first round, we held that the
    1
    No. 09-4282        State of Ohio ex rel. Skaggs, et al. v. Brunner, et al.        Page 2
    defendants could not remove the case from state court to federal court because each of
    the claims turned on state law and the parties all hailed from Ohio. Ohio ex rel. Skaggs
    v. Brunner, 
    549 F.3d 468
    (6th Cir. 2008). Today, we consider whether the defendants
    should pay attorney’s fees for improperly trying to remove the case. See 28 U.S.C.
    § 1447(c).
    I.
    Ohio law provides that a voter may cast a provisional ballot if the voter’s name
    does not appear on the list of eligible voters at a polling place. Ohio Rev. Code Ann.
    § 3505.181. Of the 27,000 provisional votes cast in Franklin County during the 2008
    elections, about 1,000 had a potential defect: they did not contain the voter’s name and
    signature. After the Franklin County Board of Elections identified this problem, two
    legal issues emerged: (1) does Ohio law require that a ballot include a name
    and signature, see Ohio Rev. Code Ann. § 3505.183(B)(1); and (2) even if it does,
    should the ballots be counted because Ohio law has an exemption for mistakes allegedly
    attributable to poll workers?
    Ohio Secretary of State Jennifer Brunner took the position that the ballots
    complied with Ohio law, which prompted two Franklin County voters to file an original
    action in the Ohio Supreme Court against the Secretary and the Franklin County Board
    of Elections. The “relators,” the name given to claimants who file an action on behalf
    of others, sought a writ of mandamus to compel the defendants “to meet their clear legal
    duty under Ohio statutes.” R.3 at 4. “No federal law claims,” the complaint added, “are
    asserted; rather, Relators seek a writ requiring respondents to comply with the state law
    statutory requirements of [Ohio Rev. Code §§] 3505.181, 3505.182, 3505.183, and
    3505.18.” 
    Id. The Secretary
    nonetheless read the claims as raising issues of federal law and
    removed the case to federal court. The relators moved to remand the case to state court,
    and the district court denied the motion. Ohio ex rel. Skaggs v. Brunner, 
    588 F. Supp. 2d
    819 (S. D. Ohio. 2008). A few days later, the court granted the Secretary’s motion
    for summary judgment. Ohio ex rel. Skaggs v. Brunner, No. 2:08-cv-1077, 2008 WL
    No. 09-4282        State of Ohio ex rel. Skaggs, et al. v. Brunner, et al.         Page 3
    5100684 (S.D. Ohio Nov. 20, 2008). The relators appealed, and we vacated the district
    court’s opinion after concluding it lacked subject matter jurisdiction. Ohio ex rel.
    Skaggs v. Brunner, 
    549 F.3d 468
    (6th Cir. 2008).
    The relators sought attorney’s fees under § 1447(c), and the court denied the
    motion. Ohio ex rel. Skaggs v. Brunner, No. 2:08-cv-1077, 
    2009 WL 3064199
    (S.D.
    Ohio Sept. 18, 2009). This appeal followed.
    II.
    “An order remanding the case may require payment of just costs and any actual
    expenses, including attorney fees, incurred as a result of removal.” 28 U.S.C. § 1447(c).
    This provision gives district courts discretion to grant fees to the opposing party—they
    “may” grant fees—if “the removing party lacked an objectively reasonable basis for
    seeking removal.” Martin v. Franklin Capital Corp., 
    546 U.S. 132
    , 141 (2005). We will
    reverse a trial court’s fees decision only if it amounts to an abuse of discretion.
    Bartholomew v. Town of Collierville, 
    409 F.3d 684
    , 686 (6th Cir. 2005).
    In removing the case, the Secretary invoked the district court’s federal-question
    jurisdiction, R.1, which allows federal courts to hear cases “arising under” federal law,
    28 U.S.C. § 1331. A complaint arises under federal law if it: (1) states a federal cause
    of action; (2) includes state-law claims that necessarily depend on a substantial and
    disputed federal issue; (3) raises state-law claims that are completely preempted by
    federal law; or (4) artfully pleads state-law claims that amount to federal-law claims in
    disguise. Mikulski v. Centerior Energy Corp., 
    501 F.3d 555
    , 560 (6th Cir. 2007) (en
    banc). The Secretary claims that at least one of these grounds, if not several of them,
    provided an objectively reasonable basis for removal. Whether they did is not as easy
    as the Secretary suggests.
    Federal Cause of Action. The complaint by its terms does not state a federal
    cause of action. It says that the Secretary and the Board violated “their clear legal duty
    under Ohio statutes,” namely “the state law statutory requirements of [Ohio Revised
    Code §§] 3505.181, 3505.182, 3505.183, and 3505.18.” R.3 at 4–5 (emphases added).
    No. 09-4282         State of Ohio ex rel. Skaggs, et al. v. Brunner, et al.          Page 4
    Trying to eliminate any doubt about the point, the complaint disavows any reliance on
    federal law: “No federal claims are asserted.” 
    Id. The prayer
    for relief sings the same
    song: it asks for “a writ of mandamus compelling [the Secretary] [1] to correct her
    erroneous interpretation of [Ohio Revised Code §§] 3505.183(B)(1)(a) . . . [and]
    3505.181,” “[2] to advise the [Board] that any provisional voter must provide the
    identification verification information mandated by [Ohio Revised Code §] 3505.181”
    and “[3] to reject any [ballot] . . . if the [ballot] does not include both the name and
    signature of the voter . . . [as] required by [Ohio Revised Code §] 3505.183(B)(1)(a).”
    R.3 at 18–19. A complaint that invokes state law alone, and that mentions federal law
    only to disclaim any reliance on it, does not provide a basis for arising-under federal
    jurisdiction. Indeed, we have held that a complaint containing a federal-law disclaimer
    (like this one) deprives the defendant of an objectively reasonable basis for removal. See
    Warthman v. Genoa Twp. Bd. of Trs., 
    549 F.3d 1055
    , 1063 (6th Cir. 2008).
    Substantial Federal Question. The next possibility exists when a state-law claim
    turns on a disputed and substantial federal issue, and exercising jurisdiction would not
    upset the traditional scope of the state courts’ jurisdiction. Grable & Sons Metal Prods.,
    Inc. v. Darue Eng’g & Mfg., 
    545 U.S. 308
    , 313, 318 (2005). Here, too, it is difficult to
    discern a legitimate basis for removal. There is no federal issue, substantial or
    otherwise, embedded in any of the state-law claims. It is not as if the plaintiffs claimed,
    say, that the defendant violated a state-law tort—negligence—by violating a federal
    standard of care. See Merrell Dow Pharms. Inc. v. Thompson, 
    478 U.S. 804
    , 809–10
    (1986). All that the plaintiffs said, and all that they could fairly be construed as saying,
    was that the defendants violated “Ohio statutes.” R.3 at 4; see Ohio Rev. Code
    §§ 3505.181, 3505.182.
    The Secretary resists the point, arguing that the complaint’s reference to her pre-
    election interpretation of the state statutes—Directive 2008-101—raised a federal issue
    because she issued the directive in reference to a federal court’s consent decree. See R.3
    at 11–12; Ne. Ohio Coalition for the Homeless v. Brunner, No. 2:06-cv-896 (S.D. Ohio
    filed Oct. 24, 2006). But this argument ignores the context in which the complaint refers
    No. 09-4282         State of Ohio ex rel. Skaggs, et al. v. Brunner, et al.          Page 5
    to the directive. The complaint says that the Secretary violated several state statutes, not
    the court’s consent decree, R.3 at 4–5, and used the Secretary’s earlier interpretation of
    the statutes in the consent decree as evidence that she had violated state law, not the
    consent decree, 
    id. at 11–12.
    The Secretary’s invocation of the consent decree, at any rate, at most raises
    defenses to the action. Yet the plaintiff, not the defendants, remains the master of a
    complaint, including the master of what law she opts to invoke in filing a claim. In the
    words of Justice Holmes: “Of course, the party who brings a suit is master to decide
    what law he will rely upon.” The Fair v. Kohler Die & Specialty Co., 
    228 U.S. 22
    , 25
    (1913); see Caterpillar Inc. v. Williams, 
    482 U.S. 386
    , 392 (1987). That is why federal
    defenses generally do not provide a basis for § 1331 jurisdiction. Louisville & Nashville
    R.R. Co. v. Mottley, 
    211 U.S. 149
    , 152 (1908). And that is why, more specifically, the
    issue-preclusive effect of a prior federal decision (the consent decree) may not convert
    a state-law claim (that the Secretary violated state statutes) into a federal claim. Rivet
    v. Regions Bank of La., 
    522 U.S. 470
    , 476–77 (1998).
    Complete Preemption. The Secretary does not maintain that federal law
    completely preempted these state-law claims. And with good reason: the doctrine of
    “complete preemption” applies only to Employee Retirement Income Security Act
    claims, Metro. Life Ins. Co. v. Taylor, 
    481 U.S. 58
    (1987), Labor Management Relations
    Act claims, Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists, 
    390 U.S. 557
    (1968), and National Bank Act claims, Beneficial Nat’l Bank v. Anderson, 
    539 U.S. 1
    (2003). Ohio’s laws about the eligibility of provisional ballots do not implicate any of
    these statutes.
    Artful Pleading. That leaves the possibility that these state-law claims amounted
    to federal claims in disguise. As the Secretary reads the complaint, it says that the
    State’s interpretation of Ohio’s election laws caused the claimants’ votes to be diluted,
    R.3 at 4–5, and vote dilution establishes a federal claim, see Bush v. Gore, 
    531 U.S. 98
    (2000). But the “artful pleading” doctrine does not apply whenever it is possible to
    construe a state-law theory as a federal one. Otherwise, any complaint that invoked
    No. 09-4282         State of Ohio ex rel. Skaggs, et al. v. Brunner, et al.           Page 6
    theories that appear in state and federal law would amount to a federal claim, even if the
    complaint invoked only state statutes or state constitutional provisions. Rather, “[t]he
    artful pleading doctrine allows removal where federal law completely preempts a
    plaintiff’s state-law claim,” 
    Rivet, 522 U.S. at 475
    , or perhaps (it is not clear after Rivet)
    where federal issues necessarily must be resolved to address the state law causes of
    action, see Charles Alan Wright et al., Federal Practice & Procedure § 3722.1. The
    Secretary’s theory does not satisfy these requirements. An allegation of “vote dilution”
    exists at a nose-bleed level of generality—so general that the allegation by itself could
    cover any violation of election law, whether contained in municipal, state or federal law,
    and whether contained in ordinances, statutes or constitutions. To allege that election
    officials have violated a legal requirement with respect to vote counting invariably may
    be characterized as a claim of “vote dilution” by some or of “vote aggrandizement” by
    others. A complaint’s reference to “vote dilution” thus does not necessarily invoke a
    federal cause of action any more than a claim that officials have “violated election law”
    does so. In each setting, more information is required, and here the words of the
    complaint and the context in which they arise show that the claimants relied only on
    state law.
    All of this shows why we would have been inclined to grant the claim for
    attorney’s fees had the choice been ours to make in the first instance. As we read the
    complaint, it is difficult to identify an objectively reasonable basis for the Secretary’s
    removal, whether one looks at each potential ground for removal or aggregates them
    together. But the call was not initially delegated to us, and that makes all the difference.
    The case calls for abuse-of-discretion review, suggesting a range of plausible
    assessments about whether removal was objectively reasonable. See 
    Martin, 546 U.S. at 139
    ; 
    Bartholomew, 409 F.3d at 686
    . We have laid out one plausible way to assess the
    grounds for removal, but it is not the only one.
    Keep in mind that this district court judge not only thought the removal was
    objectively reasonable, but he also denied the motion to remand the case to state court.
    Skaggs, 
    588 F. Supp. 2d
    819. The point favors the Secretary, as we can assume that
    No. 09-4282         State of Ohio ex rel. Skaggs, et al. v. Brunner, et al.          Page 7
    district courts rarely allow parties to remove cases that were objectively unreasonable
    to remove. The point does not end the matter, however, as this court has reversed at
    least one district court decision declining to grant fees even after the same judge had
    originally denied the motion to remand the case to state court. Ahearn v. Charter Twp.
    of Bloomfield, 
    149 F.3d 1182
    , 
    1998 WL 384558
    , *2–4 (6th Cir. June 18, 1998)
    (unpublished table decision), overruled on other grounds, Warthman, 
    549 F.3d 1055
    .
    A few other considerations cut the Secretary’s way. No one alleges that the Secretary
    removed the case to delay litigation or to impose additional litigation costs on the
    plaintiffs. Not just the Secretary, but the courts as well, labored under considerable time
    pressures to resolve this ballot-counting dispute quickly so that a congressional seat
    could be timely filled. Any delay caused by the failed removal could not have exceeded
    two weeks.
    One other point deserves mention. In Warthman, this court provided a safe
    harbor designed to prevent federal-question removals if the complaint relied only on
    state law and if it disclaimed any reliance on federal law. 
    See 549 F.3d at 1063
    . Yet
    Warthman was decided one month after the Secretary removed this case, making it
    unfair to hold her accountable for failing to predict the future. Had Warthman already
    been on the books at the time and had the Secretary nonetheless removed this action,
    however, a different outcome seems likely. Instead of a close case in which it still
    plausibly could be said that the district court acted within its discretion in denying fees,
    we would have a difficult-to-justify removal. The point of fee-shifting statutes is to
    influence litigants’ conduct by making them pay for the costs of improper removals.
    Because “[d]iscretion is not a whim,” 
    Martin, 546 U.S. at 139
    , a post-Warthman removal
    in this situation would require fees, 
    Warthman, 549 F.3d at 1060
    –61 (“[I]n cases where
    the removal was not objectively reasonable . . . the district court may exercise its
    discretion to award fees or not, keeping in mind . . . the general presumption that fees
    should be awarded under such circumstances.”); 
    id. at 1063
    (“Including [a disclaimer]
    in complaints is an excellent practice . . . because it avoids the procedural delay and
    expense of removal and remand.”).
    No. 09-4282      State of Ohio ex rel. Skaggs, et al. v. Brunner, et al.   Page 8
    III.
    For these reasons, we affirm.