Opinion
IP 01-1963-C-T/K.
May 9, 2002
Entry On Pending Motions
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
This cause comes before the court on the following motions: (1) Motion To Dismiss Count I Of Plaintiff's Complaint For Declaratory and Injunctive Relief, (2) Motion To Dismiss Count II Of Plaintiff's Complaint For Declaratory and Injunctive Relief, and (3) Motion For Judgment On The Pleadings. The court rules as follows.
I. The Amended Pleadings
The Amended Complaint For Declaratory And Injunctive Relief makes the following allegations. Plaintiff, Marion County Democratic Party (the "Democratic Party" or "Party"), is a political organization whose purpose, among others, is to promote the candidacies of persons nominated for Marion County elective offices and to aid and assist in the election of those candidates to office. (Am. Compl. ¶ 1.) Defendants, Richard A. Young, Sarah M. Taylor, and Steven R. Eichholtz, are the duly appointed members of the Marion County Election Board (the "Election Board" or "Board), and are sued in their official capacities as members of the Board. (Id. ¶ 2.) Among the duties of the Election Board are to conduct all elections, administer the election laws within Marion County, and prepare all ballots to be used in elections. (Id. ¶ 3.)
Indiana law provides that in a general election the nominees of a political party shall be listed under the name and device of their party and requires that the instructions for voting a straight party ticket be placed to the right of the device of that political party. (Am. Compl. ¶ 12.) Indiana law, Indiana Code § 3-11-12-29(c), also provides for straight party ticket voting by which a voter may cast a straight party ticket by pulling a party's lever. (Id. ¶ 13.)
Marion County has a unique system for electing candidates to the superior court. The voters of the County elect fifteen candidates for superior court judgeships from among the eight candidates nominated by each major political party, with the fifteen candidates receiving the highest number of votes being elected to the judgeships. (Am. Compl. ¶ 6.) Indiana Code § 3-11-2-12, which provides for the ballot order in general elections, provides that superior court judicial candidates be placed on the general election ballot after candidates for federal and state offices, but before candidates for other county and township offices. (Id. ¶ 7.) Pursuant to Indiana Code § 3-11-2-12.5, the Election Board may alter this ballot order by placing the names of candidates for prosecuting attorney, Clerk of the Circuit Court, and other specified county offices before the names of the candidates for county judicial offices.
The Election Board has utilized voting machines in all of its elections since at least the 1960s and will use such machines in the general election to be held on November 5, 2002. (Am. Compl. ¶ 8.) Voting machines used in Marion County are equipped with party levers by which voters who desire to cast a straight party ticket may, by pulling that party's lever, cast votes for all of the candidates under the voter's political party preference. (Id. ¶ 9.) Voting machines used in past general elections in Marion County have excluded from the straight party ticket lever the names of candidates for the Marion Superior Court; thus, voters who desired to cast their vote(s) for candidates for Marion Superior Court have been required to pull the individual voting levers over each candidate's name. (Id. ¶ 10.) Voting machines to be utilized in this year's general election can be set up to operate so that the eight nominated candidates of each political party for the Marion Superior Court bench are included on their respective political party's straight party ticket lever. (Id. ¶ 11.)
At the Election Board's December 20, 2001, regular monthly meeting, Defendant Eichholtz offered the following resolution (the "Eichholtz Resolution"), in relevant part:
Be It Resolved That, for the general election in the year 2002 all voting machines shall operate so that if a voter desires to vote for all the candidates of one (1) political party including Marion Superior Court Judge, the voter may cast a straight party ticket by pulling that party's lever. The voter's vote shall then be counted for all the candidates under that party name including Marion Superior Court Judge. . . .
(Am. Compl. ¶ 14.) The Eichholtz Resolution was not adopted by the Election Board. (Id. ¶ 17.) Thus, candidates nominated for Marion Superior Court judgeships in the 2002 general election will not be included on the straight party ticket lever. (Id. ¶ 18.)
The Amended Complaint alleges that this action arises under the Constitution of the United States and 42 U.S.C. § 1983 (Am. Compl. ¶ 4), and that the court has jurisdiction over the federal claims pursuant to 28 U.S.C. § 1331 and 1343, and 42 U.S.C. § 1983, and over the supplemental state law claim pursuant to 28 U.S.C. § 1367. (Id. ¶ 5.)
Count I of the Amended Complaint alleges that the Election Board's failure and refusal to adopt the Eichholtz Resolution has impermissibly burdened the rights of those Democratic Party members who will be nominated candidates for Marion Superior Court judgeships in the 2002 general election to associate with the Democratic Party in violation of the First Amendment (Am. Compl. ¶ 19) and has impermissibly denied the Democratic Party its associational rights in violation of the First Amendment and Indiana law, by preventing it from extending to its nominated candidates for Marion Superior Court judgeships one of the important benefits of being a nominee of the Democratic Party, the right to benefit in the same way as all other nominated candidates from straight ticket voting. (Id.) Count II alleges that the Board's failure and refusal to adopt the Eichholtz Resolution was arbitrary, capricious, intentional and particularly directed against the Democratic Party candidates for Marion Superior Court judgeships in violation of the candidates' right to equal protection of the laws guaranteed by the Fourteenth Amendment. (Id. ¶ 22.) Count III alleges that the Board's failure and refusal to adopt the Eichholtz Resolution violates Indiana law, namely Indiana Code § 3-11-12-29(c). (Id. ¶ 24.) Plaintiff seeks a preliminary and permanent injunction enjoining the Board to allow voters in the 2002 general election to cast a straight party ticket for all nominees of a particular political party, including Marion Superior Court nominees, and a declaratory judgment that the Board's policy and practice of excluding nominees for Marion Superior Court judgeships from the straight party ticket lever violates the Democratic Party's rights under the First and Fourteenth Amendments and violates Indiana Code § 3-11-12-29(c). Plaintiff also requests that if the court concludes that this case presents a novel or unusual issue of Indiana law that is dispositive of the case the court certify that question to the Indiana Supreme Court. Plaintiff seeks costs and attorneys' fees and any other relief to which the court deems them entitled.
The Answer to the Amended Complaint admits that voting machines used in Marion County are equipped with party levers and that in the past general elections, the names of candidates for the Marion County Superior Court have been excluded from the straight party ticket lever. (Answer ¶¶ 9, 10.) The Answer also admits that Indiana law requires that voting machines permit straight party ticket voting and that the machines be arranged and set up so that a voter may cast a straight party ticket by pulling that party's lever and by which the voter's vote shall count for all the candidates under that party's name. (Id. ¶ 13.) As well, the Answer admits that the Eichholtz Resolution was not adopted. (Id. ¶ 17.) However, the Answer denies that, without judicial intervention, nominated candidates for Marion County Superior Court judgeships in the 2002 general election will not be included on the party lever. (Id. ¶ 18.) The Answer further denies that the Election Board has violated the First Amendment associational rights of the Democratic Party nominees for Marion Superior Court judgeships or of the Democratic Party, has denied the candidates' rights to equal protection under the laws protected by the Fourteenth Amendment, or has violated Indiana law, specifically Indiana Code § 3-11-12-29(c). (Id. ¶¶ 19-20, 24.) The Answer asserts the Affirmative Defenses of failure to state a claim upon which relief can be granted, waiver, laches, the Eleventh Amendment and the Pennhurst doctrine, Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984), and alleges that Plaintiff cannot satisfy the standards for issuance of an injunction. (Answer, Affirmative Defenses, ¶¶ 1-5.)
II. Federal Jurisdiction
As in every case, the first inquiry the court must make is whether it may properly exercise jurisdiction over this case. "[N]o court may decide a case without subject matter jurisdiction, and neither the parties nor their lawyers may stipulate to jurisdiction or waive arguments that the court lacks jurisdiction." Weaver v. Hollywood Casino-Aurora, Inc., 255 F.3d 379, 381 (7th Cir. 2001) (quotation omitted). The court has an unwavering obligation to satisfy itself of its jurisdiction. Id.; see also Tylka v. Gerber Prods. Co., 211 F.3d 445, 447-48 (7th Cir.) ("federal courts are always `obliged to inquire sua sponte whenever a doubt arises as to the existence of federal jurisdiction.'") (quoting Mt. Healthy City Board of Educ. v. Doyle, 429 U.S. 274, 278 (1977)), cert. denied, 531 U.S. 1002 (2000).
The Amended Complaint asserts jurisdiction under 28 U.S.C. § 1331, 1343, and 1367. Section 1331 grants the court jurisdiction over federal questions, § 1343 grants the court jurisdiction over certain civil rights actions, and § 1367 grants the court supplemental jurisdiction over certain claims. Having considered the jurisdiction question, the court is satisfied that this case comes within the court's jurisdiction under §§ 1331, 1343 and 1367.
Section 1331 provides that: "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Section 1343 grants the district courts with original jurisdiction over civil actions "[t]o redress the deprivation, under color of any State law . . . of any right . . . secured by the Constitution of the United States. . . ." 28 U.S.C. § 1343. Section 1367 provides that "in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a).
A federal court has jurisdiction over a federal claim if the claim is "substantial." Duke Power Co. v. Carolina Envt'l Study Group, 438 U.S. 59, 70-71 (1977). Likewise, a court may properly exercise supplemental jurisdiction over a state law claim only if the federal claim is "substantial." Hagans v. Lavine, 415 U.S. 528, 536-38, 543 (1974) (holding complaint alleged a substantial constitutional claim so as to confer jurisdiction); United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966) ("Pendent jurisdiction . . . exists whenever there is a [federal] claim. . . . The federal claim must have substance sufficient to confer subject matter jurisdiction on the court."). The Supreme Court repeatedly has drawn a distinction between a failure to state a claim upon which relief can be granted and the insubstantiality of a federal claim requiring dismissal for lack of jurisdiction. See, e.g., Hagans, 415 U.S. at 542; Bell v. Hood, 327 U.S. 678, 682-83 (1946); accord United States ex rel. Fallon v. Accudyne Corp., 97 F.3d 937, 940 (7th Cir. 1996) ("it is obviously possible that a plaintiff may successfully invoke federal jurisdiction . . . and yet may lose on some other ground, such as failure to state a claim on which relief can be granted"); Gammon v. GC Servs. Ltd. P'ship, 27 F.3d 1254, 1256 (7th Cir. 1994) ("Although similar to the standard for dismissal for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6), the standard for dismissal for want of subject matter jurisdiction is considerably more rigorous.").
In Hagans the Supreme Court said that to be insubstantial as to justify dismissal for lack of subject matter jurisdiction, a claim must be "so attenuated and unsubstantial as to be absolutely devoid of merit," 415 U.S. 536 (quotation omitted), "wholly insubstantial," "obviously frivolous," "plainly unsubstantial," "implausible" "no longer open to discussion," id. at 537 (quotations omitted), "so patently without merit," id. at 542, or "so insubstantial, implausible [or] foreclosed by prior decisions" of the Supreme Court. Id. at 543 (quotations omitted); accord Accudyne Corp., 97 F.3d at 940 ("Unless the relators' claim was weaker than frivolous . . . the court had jurisdiction"). The court cannot say that Democratic Party's claims in Count I or II fail to meet this generous threshold, see Rosen v. Brown, 970 F.2d 169, 175 (6th Cir. 1992) (concluding that once a state admits a particular subject to a ballot and manipulates the content of the ballot, it must take into account constitutional rights of free speech and association as well as equal protection); whether the claims survive a motion to dismiss for failure to state a claim is another matter, however.
The Democratic Party argues that the court need not decide whether the federal constitutional claims survive the Election Board's motions to dismiss, advocating that the court defer ruling on the dismissal motions until it has decided the supplemental state law claim, on which Plaintiff maintains it is entitled to full relief. Thus, the court next must consider the applicability of the constitutional avoidance doctrine given the procedural posture of this case.
III. The Constitutional Avoidance Doctrine
"If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable." Jean v. Nelson, 472 U.S. 846, 854 (1985) (quotation omitted). The constitutional avoidance doctrine is a doctrine of judicial restraint. Three Affiliated Tribes of Berthold Reservation v. Wold Eng'g, P.C., 467 U.S. 138, 157 (1984). The doctrine has its roots in Siler v. Louisville Nashville Railroad Co., 213 U.S. 175, 191-92 (1909), which held that "[w]here a case . . . can be decided without reference to questions arising under the Federal Constitution, that course is usually pursued and is not departed from without important reasons." Id. at 193; see also Ashwander v. Valley Auth., 297 U.S. 288, 347 (1935) ("The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.") (Brandeis, J., concurring). The Court found "it much better to decide [the case] with regard to the question of a local nature . . . rather than to unnecessarily decide the various constitutional questions appearing in the record." Siler, 213 U.S. at 193.
In Hagans v. Lavine, 415 U.S. 528 (1974) the Court reaffirmed the constitutional avoidance doctrine. Id. at 546-547. The plaintiffs asserted claims under § 1983 alleging that a state regulation violated the Equal Protection Clause and federal statutory and regulatory law. Id. at 531. They invoked the court's jurisdiction under 28 U.S.C. § 1343(3) and (4). The Court held that the district court had pendent (now supplemental) jurisdiction to decide the federal statutory and regulatory claims under § 1343(3) because there was a "substantial" constitutional claim. Id. at 533. It then held that since the court had jurisdiction over the constitutional claim, it had jurisdiction over the statutory claim, and "[t]he latter was to be decided first and the former not reached if the statutory claim was dispositive." Id. at 543. The Court said that the presumption of deciding the nonconstitutional claims first is not absolute, but should "not [be] departed from without important reasons." Hagans, 415 U.S. at 546-47 (quoting Siler, 213 U.S. at 193).
The Democratic Party cites several cases to support its position that under the constitutional avoidance doctrine this court should defer ruling on the motions to dismiss and decide the state law claim first. None of them, however, stand for the proposition that the doctrine precludes a court from ruling on a Rule 12(b)(6) motion and deciding whether a complaint has sufficiently stated a constitutional claim. A decision on the merits of the constitutional claim was reached in Schmidt v. Oakland Unified School District, 457 U.S. 594, 595 (1982) (per curiam) (holding that where district court granted summary judgment and appellate court affirmed, the appellate court abused its discretion in declining to decide the pendent state law claim because if the affirmative action plan challenged in the case was invalid under state law, there would have been no need to reach the federal constitutional issue), Crane v. Indiana High School Athletic Association, 975 F.2d 1315, 1316 (7th Cir. 1992) (district court found that high school athletic association's transfer eligibility rules violated student-athlete's equal protection and due process rights and granted permanent injunction against association), and Robbins v. Lady Baltimore Foods, Inc., 868 F.2d 258, 261-63 (7th Cir. 1989) (reversing grant of summary judgment on issue of statute's constitutionality and remanding case to arbitration). In Woods v. City of Michigan City, 940 F.2d 275, 279-81 (7th Cir. 1991), the court said that it need not reach the constitutional issue of whether a liberty interest was violated because it could affirm the grant of summary judgment in favor of defendant on the ground that the plaintiff sued the wrong parties. Similarly, the court in Taylor v. Peabody Coal, 892 F.2d 503, 508 (7th Cir. 1989), vacated by 488 U.S. 988 (1988), did not reach the due process claim because the case could be resolved on other grounds.
The other cases cited by the Democratic Party do not address the constitutional avoidance doctrine, but rather, address the substantiality of federal claims. See Gammons v. GC Services, Limited Partnership, 27 F.3d 1254, 1256 (7th Cir. 1994) (holding that complaint stated a claim upon which relief could be granted under Fair Debt Collection Practices Act and reversing district court's dismissal for lack of subject matter jurisdiction); Joyce v. Joyce, 975 F.2d 379, 383 n. 3 (7th Cir. 1992) (holding dismissal for lack of subject matter jurisdiction proper where boat owner could obtain no relief under his claim under the Limitation of Shipowner's Liability Act); Ricketts v. Midwest National Bank, 874 F.2d 1177, 1180-83 (7th Cir. 1989) (holding the complaint was insufficient to support subject matter jurisdiction); Argento v. Village of Melrose Park, 838 F.2d 1483, 1491-92 (7th Cir. 1988) (holding that the due process claim was sufficiently substantial as to confer subject matter jurisdiction on the court); Uptown People's Community Health Services Board of Directors v. Board of Commissioners of Cook County, 647 F.2d 727, 732-33 (7th Cir. 1981) (holding district court erred in putting off consideration of substantiality of federal claims). This court already has decided that the Democratic Party's federal claims are sufficiently substantial as to confer subject matter jurisdiction on the court.
The Democratic Party has not cited, nor has the court's independent research revealed, any case holding that, when the complaint purports to state a constitutional claim and that claim is challenged by a Rule 12(b)(6) motion for failure to state a claim, the court should not decide the sufficiency of the claim simply because the action may be disposed of on the merits on the basis of a supplemental state law claim. Instead, the case law establishes that under the constitutional avoidance doctrine, a court generally should first decide nonconstitutional claims that may resolve a case before reaching the merits of a constitutional claim.
The Democratic Party contends that a ruling on a Rule 12(b)(6) motion to dismiss is a ruling on the merits of a claim. Hagans does contain the following language quoted by the Democratic Party and quoted from Bell:
Jurisdiction . . . is not defeated as respondents seem to contend, by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover. For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy.
Hagans, 415 U.S. 528, 542 (1974) (quoting Bell v. Hood, 327 U.S. 678, 682 (1946)). At first blush, this language seems to support the Democratic Party's claim that a dismissal for failure to state a claim is a dismissal on the merits. But this language must be understood in its context. It was not necessary to the holdings of either Hagans or Bell, which were decided under the substantiality doctrine. In neither case did the Court decide whether a claim sufficiently stated a claim on which relief could be granted.
It is apparent that the use of the language "a judgment on the merits" was intended merely to distinguish dismissals for lack of subject matter jurisdiction from dismissals on other grounds. Support for this conclusion can be found in the authority upon which Bell relied for the above quoted language, Swafford v. Templeton, 185 U.S. 487, 493, 494 (1902), and Binderup v. Pathe Exchange, 263 U.S. 291, 305-08 (1923). The sole issue presented in both Swafford and Binderup was whether the lower court properly dismissed the action for lack of subject matter jurisdiction. In Binderup, the trial court had assumed (incorrectly) that a failure to allege facts sufficient to state a federal claim constituted a jurisdictional defect, and the defendants argued to the Supreme Court that such failure deprived the federal court of jurisdiction. 263 U.S. at 305. The Court noted the difficulty in distinguishing between matters addressing a federal court's jurisdiction and matters going to the merits, id. at 308, and explained:
Jurisdiction is the power to decide a justiciable controversy, and includes questions of law as well as of fact. A complaint, setting forth a substantial claim under a federal statute presents a case within the jurisdiction of the court as a federal court, and this jurisdiction cannot be made to stand or fall upon the way the court may chance to decide an issue as to the legal sufficiency of the facts alleged any more than upon the way it may decide as to the legal sufficiency of the facts proven. . . . Jurisdiction, as distinguished from merits, is wanting only where the claim set forth in the complaint is so unsubstantial as to be frivolous, or, in other words, is plainly without color of merit.
Id. at 305-06; see also Swafford, 185 U.S. at 493 ("It is obvious . . . that the court, in dismissing for want of jurisdiction, was controlled by what it deemed to be the want of merit in the averments which were made in the complaint as to the violation of the Federal right. . . . [Since] jurisdiction existed, whilst the opinion of the court as to the want of merit in the cause of action might have furnished ground for dismissing for that reason, it afforded no sufficient ground for deciding that the action was not one arising under the Constitution and laws of the United States."); cf. Levering Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933) (holding that the federal district court lacked subject matter jurisdiction and stating that "jurisdiction, as distinguished from the merits, is wanting where the claim set forth in the pleading is plainly unsubstantial.").
As for Lee v. Village of River Forest, 936 F.2d 976 (7th Cir. 1991), also relied on by the Democratic Party, the case contains a statement that "[a] Rule 12(b)(6) dismissal for failure to state a claim upon which relief may be granted `is a decision on the merits with full res judicata effect.'" Id. at 981 (quoting Winslow v. Walters, 815 F.2d 1114, 1116 (7th Cir. 1987)). In both Lee and Winslow, however, the district court not only dismissed the complaint for failure to state a claim but also entered judgment. 936 F.3d at 977; 815 F.2d 1115. Neither decision addresses whether a court should defer ruling on a Rule 12(b)(6) motion to dismiss a federal constitutional claim until it has decided whether complete relief can be provided on a supplemental state law claim.
A host of cases stand for the proposition that a ruling on a Rule 12(b)(6) motion to dismiss is not a ruling on the merits of a claim. See, e.g., Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990) ("`The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide the merits.'") (quoting Triad Assocs., Inc. v. Chicago Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989)); see also Pickrel v. City of Springfield, Ill., 45 F.3d 1115, 1118 (7th Cir. 1995) (same); Weiler v. Household Fin. Corp., 101 F.3d 519, 524 n. 1 (7th Cir. 1996) ("A decision that the plaintiff alleged facts sufficient to survive a motion to dismiss is not a ruling on the merits of her allegations."). The most authoritative commentary on the matter comes from the Supreme Court:
When a federal court reviews the sufficiency of a complaint . . . its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. . . . Moreover, it is well established that, in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Thus, Scheuer teaches that a ruling on a motion to dismiss for failure to state a claim is not a ruling on the merits of the claim. Respected commentators on the federal rules of civil procedure agree. See 5A Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 1357 at 369 (2d ed. 1990) ("A court that thinks it convenient to test the merits under a preliminary motion should do so by converting the motion to dismiss into one for summary judgment, since this is the procedural device specifically designed to test the merits of the claim in advance of trial.").
The court concludes that a decision on the Election Board's Rule 12(b)(6) motions to dismiss is not a decision on the merits of the federal constitutional claims, but rather on the sufficiency of the Democratic Party's pleading. Therefore, even if complete relief can be granted on the state law claim, the court finds that the constitutional avoidance doctrine is no bar to the court's consideration of the Rule 12(b)(6) motions.
Two appellate decisions lend support for this conclusion that the constitutional avoidance doctrine does not preclude the court from first ruling on the Election Board's Rule 12(b)(6) motions to dismiss the federal constitutional claims. In Laird v. Board of Trustees of the Institutions of Higher Learning of the State of Mississippi, 721 F.2d 529 (5th Cir. 1983), the plaintiffs, practicing physicians, sued under § 1983, alleging equal protection claims and state law claims. Id. at 531. The parties filed cross motions for summary judgment, and the district court found no equal protection violation, dismissing the equal protection claims on the merits. The district court declined to exercise jurisdiction over the supplemental state law claims because they were complex and involved novel state law issues, more briefing would be necessary on those claims, and the federal claims had been dismissed. The state law claims were dismissed without prejudice to filing in state court. Id. at 532. The Fifth Circuit affirmed. Id. at 532-535.
In holding that the district court did not abuse its discretion in dismissing the state law claims, the court relied on factors identified in United Mine Workers of America v. Gibbs, 383 U.S. 715 (1966) as a guide for the determination whether to exercise jurisdiction over pendent (now supplemental) claims. The court found that only one factor — "the extent to which a decision on state issues may preclude the need to decide a federal constitutional question" — weighed in favor of the exercise of pendent jurisdiction. Laird, 721 F.2d at 534. Upon considering this factor, the court observed that "the Supreme Court has cautioned that the policy of avoiding constitutional questions is not absolute," and "because of the clear weakness of the federal claim in this case, the policy of avoiding constitutional claims in favor of state law matters carries little weight indeed." Id. at 534. To decide the state law issues "when a dubious federal claim provides the only basis for federal jurisdiction," the court said, "amounts to an argument that `the state tail should wag the federal dog.'" Laird, 721 F.2d at 534 (quoting Mayor of the City of Philadelphia v. Educ. Equality League, 415 U.S. 605, 627 n. 23 (1974)).
In United Beverage Co. of South Bend, Inc. v. Indiana Alcoholic Beverage Commission, 760 F.2d 155 (7th Cir. 1985), the plaintiffs, an Indiana beer wholesaler and trade association, sued the state alcoholic beverage commission, alleging that a commission rule violated the Fourteenth Amendment and state law. Id. at 156. The district court granted summary judgment for the defendants, dismissing both their constitutional and state law claims. The Seventh Circuit observed:
The usual sequence in considering issues of state law and of federal constitutional law is to address the former first, in the hope of avoiding having to decide the latter. In this case, however, the federal constitutional issues are easier than the state law issues; a decision on the state law issues would entangle us in delicate questions of internal state governance; and . . . once United's federal grounds are rejected, the entire case must be dismissed, leaving United free if it wants to pursue the state law issues in state court, where they belong.
Id. at 156. The court held that after dismissing the federal claim before trial, the district court should have relinquished jurisdiction over the state law claims. Id. at 160 ("considerations of comity and federalism argue for the federal courts' avoiding whenever possible getting involved in delicate issues concerning the internal structure of state government").
Language in Laird seems to suggest that the state law claims would have been dispositive of the entire case, 721 F.2d at 533 n. 6, 534, such that the constitutional avoidance doctrine normally would counsel in favor of a decision on the state law claims. Nevertheless, the district court decided the federal constitutional claims on their merits (on summary judgment) and, never reached the state law claims, dismissing them because of the clear weakness of the federal claims. Though it is unclear whether the state law claims in United Beverage were dispositive of the entire case, the court's reasoning lends support to the conclusion that the appropriate course in this case is for the court to first decide the motions to dismiss. As in United Beverage, the constitutional issues presented are easy ones and a decision on the state law claims would entangle this federal court in state election law, a local matter in which a federal court should be hesitant to intrude. See Kasper v. Bd. of Election Commr's, 814 F.2d 332, 340 (7th Cir. 1987) ("A federal court must preserve the appropriate relation between state and national power. Such concerns caution against excessive entanglement of federal courts in state election matters.") (quotation omitted).
The court concludes that a decision on the motions to dismiss in the instant case is not a decision on the merits of the constitutional claims. Thus, the constitutional avoidance doctrine does not prevent a decision on those motions. But even if a decision on the dismissal motions reached the merits of the constitutional claims, resolution of the constitutional issues is straightforward and a decision on the state law claim would place this court in the midst of state election law, both of which weigh in favor of deciding the constitutional claims before reaching the state law claim. Accordingly, the court now turns to the Election Board's motions to dismiss.
IV. Rule 12(b)(6) Motions To Dismiss
Defendants move, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss Counts I and II of the Amended Complaint for failure to state a claim upon which relief can be granted. Count I purports to state a claim for a violation of the Democratic Party's rights to associate guaranteed by the First Amendment. Count II purports to state a claim for a violation of the Party's rights to equal protection under the laws protected by the Fourteenth Amendment.
The dismissal motions were directed to the original Complaint; the Democratic Party sought leave to amend the Complaint only after the motions were filed. Therefore, the court treats the motions as directed to the Amended Complaint.
A. Dismissal Standard
When ruling on a motion to dismiss under Rule 12(b)(6), the court accepts all the factual allegations in the complaint as true and draws all reasonable inferences from the facts in favor of the plaintiff. See Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001). The motion may be granted only if the plaintiff could prove no set of facts in support of its claims that would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Sanville v. McCaughtry, 266 F.3d 724, 732 (7th Cir. 2001). "[I]f it is possible to hypothesize a set of facts, consistent with the complaint, that would entitle the plaintiff to relief, dismissal under Rule 12(b)(6) is inappropriate." Sanville, 266 F.3d at 732.
The Election Board's supplemental authority, Swierkiewicz v. Sorema, 534 U.S. 506, 122 S.Ct. 992, 995 (2002), which holds that a complaint in an employment discrimination case need not contain specific facts alleging a prima facie case of discrimination under the framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), is of little benefit to the Board. Swierkiewicz reiterates that Rule 8(a)'s notice pleading standard applies to all federal civil actions, with few exceptions. The case does not diminish the authority of the line of cases, including Conley v. Gibson, 355 U.S. 41, 46-48 (1957) and Hishon v. King Spalding, 467 U.S. 69, 73 (1984), that require a complaint's allegations to sufficiently state a claim in order to survive a Rule 12(b)(6) motion. Rather, Swierkiewicz cites to and relies on Conley and Hishon.
B. Count I: First Amendment
The Election Board argues that Count I fails to state a claim upon which relief can be granted because the First Amendment does not guarantee a political party or candidate the right to be included on a straight party ticket lever. Neither the Board's nor this court's own research located a single case establishing a First Amendment associational right in a political party or candidate to have a candidate included on a straight party ticket lever.
The Board also argued that a § 1983 claim cannot be premised upon an alleged violation of state law and the doctrine announced in Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984), precludes the court from entering injunctive relief on any supplemental state law claims. An allegation of a violation of a state election law is insufficient to state a claim under § 1983. Kasper v. Bd. of Election Commr's, 814 F.2d 332, 342 (7th Cir. 1987). The filing of the Amended Complaint, however, made the implicit state law claim in the original Complaint an explicit and separate count, Count III. Thus, Count I is no longer based on a state law violation and Pennhurst no longer applies to that count. In any event, that Pennhurst applies is open to question because it is unclear that the Election Board is an agency or department of the state rather than of Marion County.
The Democratic Party cites numerous cases for general propositions under First Amendment law at pages five to nine of its combined response brief. See, e.g., Eu v. San Francisco Democratic Central Committee, 489 U.S. 214, 223-25 (1989) (holding that California law prohibiting the official governing bodies of political parties from endorsing candidates in party primaries violates the free speech and associational rights of political parties and their members). These citations do little to advance this court's inquiry. None of them even hint at an alleged First Amendment right to have a candidate included on a straight party ticket lever. See, e.g., Brazil-Greashears v. Bilandic, 53 F.3d 789, 792 (7th Cir. 1995) (holding state policy prohibiting certain judicial employees from becoming candidates for public office or engaging in other political activities did not infringe employee's free speech rights); Swamp v. Kennedy, 950 F.2d 383, 385 (7th Cir. 1991) (holding that Wisconsin's statutory ban on multiple party nominations did not unconstitutionally infringe political parties' First Amendment associational rights). The Party argues that the issue is whether the Election Board's policy and practice of excluding judicial candidates from the straight party ticket voting lever impermissibly burdens the Party's associational rights of nominating, endorsing and promoting its candidates. This puts the cart before the horse. The threshold issue presented is whether the Democratic Party has alleged the deprivation of any First Amendment associational right. The court need not reach the question of whether any alleged burden on an associational right is unconstitutional unless and until it determines that the Amended Complaint asserts an associational right protected by the First Amendment.
Several of Indiana's nearby sister states, including Illinois, do not provide for straight party ticket voting for judicial offices. See 10 Ill. Comp. Stat. 5/1-7 (state party voting by a single vote not permitted). In fact, some of the neighboring states, such as Ohio and Kentucky, do not permit party designations to be listed on the ballot with respect to judicial candidates. See Ohio Rev. Code Ann. § 3505.04 (candidates for judicial office shall be on a nonpartisan ballot); Ky. Rev. Stat. Ann. § 118A.060(8) (no party designation, emblem or sign indicating a judicial candidate's political belief or party affiliation allowed on voting machines or special ballots). The Democratic Party suggests that such laws may not survive a First Amendment challenge in light of recent decisions such as California Democratic Party v. Jones, 530 U.S. 567 (1999). In holding that California's blanket primary violated a political party's First Amendment right of association, the Court reasoned that political parties were forced "to associate with — to have their nominees, and hence their positions, determined by — those who, at best, have refused to affiliate with the party, and, at worst, have expressly affiliated with a rival." Id. at 577. A prohibition on straight party ticket voting does no such thing.
The decision in Republican Party of North Carolina v. Martin, 980 F.2d 943 (4th Cir. 1992), where the Republican Party challenged the constitutionality of North Carolina's method of selecting superior court judges by nomination in local district wide primaries followed by state wide election, offers this court guidance. The party alleged that the election method violated the First Amendment rights of Republican voters to free speech and political association. Id. at 949, 959. The court concluded that the party failed to state a claim under the First Amendment. Id. at 959. The court reasoned that the First Amendment "protects the right to cast an effective vote by prohibiting restrictions on ballot access that impair the ability of citizens to express their political preferences, or that limit the opportunity for citizens to unite in support of the candidate of their choice." Martin, 980 F.2d at 960. The court concluded that North Carolina's method of electing superior court judges did not violate the First Amendment. The court explained that "Republicans in North Carolina may run for superior court judgeships, vote for the candidate of their choice, and associate together in support of their chosen candidate." Id. So, too, here. The Amended Complaint does not allege, and the Democratic Party has not identified any facts it could prove to establish, that Democrats in Marion County cannot run for superior court judgeships, cannot vote for the candidates of their choice, and cannot associate together in support of their chosen candidates.
The court therefore holds that the Democratic Party has failed to state a claim on which relief can be granted under the First Amendment. Accordingly, the Election Board's motion to dismiss Count I will be GRANTED.
C. Count II: Equal Protection
Count II alleges that the Election Board's policy and practice violates the Democratic Party's rights to equal protection of the laws. The Board argues that Count II fails to state an equal protection claim because it fails to allege that the Board's failure to adopt the Eichholtz Resolution was intentional, purposeful, or discriminatory. The Board also argues that Count II alleges nothing more than a state election law violation. The Party argues that the allegations are sufficient to allow an inference of an allegation of discriminatory intent or invidious discrimination.
The Equal Protection Clause provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. This is "essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citation omitted). An equal protection claim has two essential elements: (1) the plaintiff was treated differently than others similarly situated, and (2) this differential treatment was based on an impermissible consideration. See Macone v. Town of Wakefield, 277 F.3d 1, 10 (1st Cir. 2002); cf. Schroeder v. Hamilton Sch. Dist., 282 F.3d 946, 950 (7th Cir. 2002). At least one court has described disparate treatment as "the threshold element of an equal protection claim." Oldham ex rel. Young v. Cincinnati Pub. Schs., 118 F. Supp.2d 867, 871 (S.D.Ohio 2000) (citation omitted).
Both the Supreme Court and the Seventh Circuit have affirmed dismissals of equal protection claims where the complaint failed to allege intentional or purposeful discrimination. See, e.g., Snowden v. Hughes, 321 U.S. 1, 7-8 (1944) (affirming dismissal of petitioner's complaint where there was "no allegation of any facts tending to show that in refusing to certify petitioner as nominee, the Board was making any intentional or purposeful discrimination between persons or classes"); Muckway v. Craft, 789 F.2d 517, 520-23 (7th Cir. 1986) (affirming dismissal for failure to state a claim of property owner's complaint against county alleging equal protection violation due to county's failure to enforce zoning ordinance against nearby junkyard where complaint failed to allege that others requesting enforcement of the zoning ordinance had their requests honored); cf. Shango v. Jurich, 681 F.2d 1091, 1103 (7th Cir. 1982) (reversing grant of preliminary injunction on equal protection grounds where prisoner failed to show a reasonable likelihood that state officials purposefully and intentionally discriminated against him); Weisberg v. Powell, 417 F.2d 388, 392 (7th Cir. 1969) ("All the candidates were entitled, under the state law, to be treated alike. Where that is so, they have a federally protected right to the application and enforcement of the state law without intentional or purposeful discrimination among them."). The Seventh Circuit in Muckway said, "the equal protection clause `protects against intentional invidious discrimination by the state against persons similarly situated.'" 789 F.2d at 519 (quotation omitted) (emphasis added). The court continued:
A plaintiff "must demonstrate intentional or purposeful discrimination" to show an equal protection violation. "`Discriminatory purpose,' however, implies more than intent as volition or intent as awareness of consequences." It implies that a decisionmaker singled out a particular group for disparate treatment and selected his course of action at least in part for the purpose of causing its adverse effects on the identifiable group.
Muckway, 789 F.2d at 520 (quoting Shango, 681 F.2d at 1104 (citations omitted)) (emphasis added). Even when accorded a generous reading, the Amended Complaint fails to allege intentional or purposeful discrimination against the Democratic Party.
The Party argues that the allegation that the Election Board's actions were "arbitrary, capricious, intentional and particularly directed against Democratic Party candidates" allows an inference of arbitrary conduct or discriminatory intent. None of the cases on which it relies, however, stand for such a proposition, see Olech v. Village of Willowbrook, 160 F.3d 386, 387-88 (7th Cir. 1998) (holding complaint stated equal protection claim where it alleged that village demanded greater easement from homeowner than from other homeowners as a condition for hooking them up to municipal water system because of ill will arising from homeowner's prior lawsuit against village), aff'd, 528 U.S. 562 (2000), ISTA v. Board of School Commissioners of Indianapolis, 101 F.3d 1179, 1181 (7th Cir. 1996) (stating that a class for equal protection purposes can consist of one member and be defined in reference to the discrimination), and Charfauro v. Board of Elections, 249 F.3d 941 (9th Cir. 2001) (considering whether voter challenge procedures that treated voter challenges differently based on voter's political party violated equal protection clause).
But even if they did, the Amended Complaint still fails to state an equal protection claim because it does not allege that Democratic Party candidates for Marion Superior Court judgeships were treated differently than the Republican Party candidates, or any other candidates for Marion Superior Court judgeships. Even the cases cited by the Democratic Party recognize that differential treatment is an essential component of an equal protection claim. See Charfauro, 249 F.3d at 951 (describing the equal protection issue as "whether the voter challenge procedures adopted by the Board `are consistent with its obligation to avoid arbitrary and disparate treatment of the members of its electorate.'") (quoting Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 530 (2000) (emphasis added)); Olech, 160 F.3d at 388 (remarking that the complaint alleged the plaintiffs had been treated differently from all other property owners in the village); ISTA, 101 F.3d at 1181 ("treating likes as unlike is the paradigmatic case of the unequal protection of the laws"). Not even the "class of one" cases relieve a plaintiff of the burden of alleging and proving disparate treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) ("Our cases have recognized successful equal protection claims brought by a `class of one,' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.") (emphasis added). Even the Democratic Party acknowledges that a discriminatory effect is one element of an equal protection claim. (Pl.'s Resp. Defs.' Mot. Dismiss Count II at 2) (stating that to prove an equal protection claim, a plaintiff must prove that the defendant's actions had a discriminatory effect and were motivated by a discriminatory purpose). Yet, the Party fails to allege a discriminatory effect in the Amended Complaint. And, moreover, the court can conceive of no facts consistent with the allegations which would entitle the Democratic Party to relief under the Fourteenth Amendment — the allegations reveal that the Election Board treats all candidates for Marion Superior Court judgeships the same.
The Democratic Party relies on Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990) and Alliant Energy Corp v. Bie, 277 F.3d 916, 919 (7th Cir. 2002), for the proposition that general factual allegations of injury caused by the defendant's conduct are sufficient at the pleading stage, because general allegations "embrace those specific facts that are necessary to support the claim." Lujan, 497 U.S. at 889. Though this general proposition is true, a complaint still must contain allegations (whether general or specific) sufficient to state a claim. Neither Lujan nor Alliant Energy addresses whether a complaint's allegations were sufficient to state an equal protection claim; they address the question of standing. Lujan, 497 U.S. at 883; Alliant Energy, 277 F.3d at 919-20. Therefore, they offer little guidance to the court in deciding the issue at hand.
Skepticism about a plaintiff's ability to prove its claim is not a valid ground for dismissal, but a complaint must nevertheless state a claim. Because the court holds that the Amended Complaint fails to state a claim under the Fourteenth Amendment, the Election Board's motion to dismiss Count II will be GRANTED.
V. Count III: Supplemental State Law Claim
That leaves the supplemental state law claim alleged in Count III. In United Mine Workers of America v. Gibbs, 383 U.S. 715 (1966), the Supreme Court taught that a court's jurisdiction over supplemental claims "need not be exercised in every case in which it is found to exist. It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff's right." 383 U.S. at 726. Thus, once a court determines that the federal claim is of sufficient substance to confer subject matter jurisdiction, then the court must then decide whether it should exercise its discretion to decide that claim. Id. at 725-26.
The Gibbs Court set forth several factors to guide a district court's decision whether to exercise supplemental jurisdiction: (1) "judicial economy, convenience, and fairness to the litigants;" (2) avoidance of "[n]eedless decisions of state law" "both as a matter of comity and to promote justice between the parties by procuring for them a surer-footed reading of applicable law;" (3) the dismissal of the federal claims before trial weighs in favor of dismissal of the state claims; (4) the degree to which the state law issues predominate "in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought," id. at 726; (5) whether the state claim is "closely tied to questions of federal policy;" and (6) whether the likelihood of jury confusion justifies treating the state and federal claims separately for trial. Id. at 727; see also 28 U.S.C. § 1367(c); Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 122 n. 32 (1984) (discussing approvingly an application of Gibbs that results in dismissal of state law claims when state law is unclear and for purposes of comity). Of particular significance to the instant case, the Gibbs Court cautioned that just because federal courts have jurisdiction to decide certain state law questions, "does not imply that [they] must tolerate a litigant's effort to impose upon [them] what is in effect only a state law case." 383 U.S. at 727. Thus, if it "appears that a state claim constitutes the real body of a case, to which the federal claim is only an appendage, the state claim may fairly be dismissed." Id.
Consideration of the Gibbs factors leads the court to conclude that it should exercise its discretion to decline supplemental jurisdiction over the state law claim in this case. Judicial economy, convenience, and fairness to the litigants weighs in favor of declining jurisdiction. This case, though on a fast track, is relatively young: the complaint was just amended and an answer thereto filed, and no discovery has taken place. Also, as the amended pleadings and the Democratic Party's recently filed Motion For Hearing On Plaintiff's Request For Preliminary And Permanent Injunctive Relief On Count III Of Its Amended Complaint reveal, discovery and an evidentiary hearing on the state law claim will be necessary before that claim may be resolved. The dismissal of the federal claims also weighs in favor of dismissing the state law claim. "[T]he considerations of judicial economy that underlie [supplemental] jurisdiction are but weakly engaged when the federal claim drops out so soon." United Beverage Co. of South Bend, Inc. v. Ind. Alcoholic Beverage Comm'n, 760 F.2d 155, 160 (7th Cir. 1985) (quotation omitted).
Further, the court finds based on both the Amended Complaint and, especially the Democratic Party's arguments in its briefs and at oral argument, that the state law issues clearly predominate over the federal ones. Considerations of comity weigh against deciding the state law claim, and the parties will benefit from a surer-footed reading of the applicable law from a court more familiar with that law. The state law issue presented is of importance only to Marion County, as it is alleged to be the only county which uses the election system for superior court judges that is challenged in this case. This court is also persuaded that the issues of state law involved in this dispute, especially as raised in the affirmative defenses, are novel, complex, and deserving of adjudication in a court steeped in the nuances of Indiana law. Moreover, the court is convinced, based on the Democratic Party's strenuous arguments that the court should defer ruling on the motions to dismiss the federal claims and never reach those claims, that the state claim is the real claim in this case. Under similar circumstances, a district court's dismissal of supplemental state law claims was upheld. See Laird v. Bd. of Trs. of Insts. of Higher Learning, 721 F.2d 529, 534-35 (5th Cir. 1983) (affirming dismissal of equal protection claims on merits and dismissal of pendent state claims where federal claim was "dubious" and Gibbs factors of predominance of state law issues, the interest of obtaining a surer-footed reading of state law, judicial economy, convenience and fairness to the litigants counseled in favor of dismissal of state claims); cf. Fox v. Custis, 712 F.3d 84 [ 712 F.2d 84], 89-90 (4th Cir. 1983) (holding court should have remanded state law claims after dismissal of § 1983 claim where state law issues were "relatively novel, complex and of great local importance").
The Party has no genuine interest in having this court decide whether the Election Board has violated the First or Fourteenth Amendment. It is apparent that its true goal is to obtain a judicial declaration that the Election Board's policy and practice of excluding Marion County Superior Court judge nominees from the straight party ticket lever violate Indiana election law. The court suspects that the Democratic Party will not be surprised by this court's ruling that the Amended Complaint fails to state a claim under either the First or Fourteenth Amendment. That the Democratic Party fails to state such claims by Amendment, even after the original Complaint was challenged by the dismissal motions, bolsters the view that the federal claims are mere appendages, designed to obtain the court's jurisdiction so this court can decide the state law claim. This court need not tolerate the effort to impose upon it what is in effect only a state law case. See Gibbs, 383 U.S. at 727.
The Seventh Circuit recently observed that "[o]bligations of public bodies under state law should be determined by state courts unless there is a very good reason why the federal court should intervene." Shegg v. Bd. of Educ. of Chicago, 194 F.3d 836, 839 (7th Cir. 1999). Neither party has advanced any good reason why this court should retain jurisdiction over the claim that the Election Board has violated state election law. Accordingly, the court in its discretion declines to exercise supplemental jurisdiction over the state law claim in Count III. This claim will be DISMISSED to allow the Indiana state courts to address the state law issue presented.
VI. Conclusion
The Amended Complaint fails to sufficiently state a claim of a violation of the First Amendment's right of association or the Fourteenth Amendment's right of equal protection under the laws. Therefore, Counts I and II should be dismissed, and Defendants' motions to dismiss are GRANTED. The Democratic Party already has attempted to amend its complaint to sufficiently state a claim under the First and Fourteenth Amendments, but was unsuccessful. It has not given the court any reason to believe that another attempt to state a claim would be fruitful.
Having dismissed all claims over which it has jurisdiction and because the supplemental claim involves a novel state law issue, the court DECLINES to exercise jurisdiction over the claim asserted in Count III and DISMISSES this claim without prejudice to filing in the appropriate state forum within thirty days of this date.
Plaintiff's Motion For Hearing On Plaintiff's Request For Preliminary And Permanent Injunctive Relief On Count III Of Its Amended Complaint and Defendant's Motion For Leave To File Sur-Reply Brief are DENIED AS MOOT.
An order will be entered effectuating the rulings in this entry.
ALL OF WHICH IS ORDERED.