Civil Action No. SA-OO-CA-1527 OG, (Consolidated with Member Case No. SA-OO-CA-1542 FB)
February 27, 2002
MEMORANDUM AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
TO: Honorable Orlando L. Garcia United States District Judge
Pro se plaintiffs, Nathan Thompson and Karen Bennett, bring this lawsuit to challenge the special election held on November 7, 2000 in which City of San Antonio residents were asked to vote on the Fluoride measure, Ordinance 92255. Plaintiffs argue that several election irregularities materially tainted the special election results; and for that reason, the court should declare the election void pursuant to TEX. ELEC. CODE § 221.012. In addition, plaintiffs contend that the Fluoride measure, Ordinance 92255, adopted by the City Council on August 3, 2000 was an unconstitutional exercise of the City's police powers. Pending before me are the motion for summary judgment filed by the defendants, the City of San Antonio and City Clerk, Norma Rodriguez, and plaintiffs' response to the same.
Docket Entry 1, Plaintiffs' Original Petition.
Besides requesting "costs and expenses," plaintiffs do not seek a monetary damage award. Docket Entry 1, Plaintiffs' Original Petition, at ¶ XII.
Docket Entry 15 (Defendants' summary judgment motion), Docket Entry 16, (Appendix A, Summary Judgment Exhibits to Defendants' motion) and Docket Entry 17 (Plaintiffs' Summary Judgment Response).
For the reasons set forth fully below, it is my recommendation that defendants' motion for summary judgment should be GRANTED, albeit, for different reasons than those advanced by defendants. While defendants correctly point out that plaintiffs cannot establish a due process or equal protection challenge to the special election on the Fluoride measure under the United States Constitution, defendants also ask this court to address the substantive merits of plaintiffs' state law claims involving purported violations of the Texas Election Code as well as common law causes of action. It is my opinion that upon dismissal of plaintiffs' federal constitutional claims, that the District Court should abstain from exercising supplemental jurisdiction over plaintiffs' pendent state law claims. It is well-settled that federal courts should abstain from resolving unsettled questions of state law which involve the state's own political process. The interests of comity between the state and federal systems demand that plaintiffs' claims be resolved in a Texas court. Accordingly, it is my recommendation that the District Court enter an Order DISMISSING those claims from the instant suit and REMANDING them to state court for adjudication.
II. Statement of the Case
On November 7, 2000, the City of San Antonio held a special election asking its residents to vote on the fluoridation of the City's drinking water. The specific language of the Fluoride measure, Ordinance 92255, approved by City Council and presented to the voters was:
DIRECTING THE DIRECT SUPPLIERS OF DRINKING WATER THROUGH PIPING SYSTEMS SERVING PROPERTIES WITHIN THE CITY OF SAN ANTONIO TO FLUORIDATE ALL WATER SUPPLIES WITHIN THEIR DISTRIBUTION SYSTEMS; AND ADOPTING A PROVISION MAKING THIS ORDINANCE EFFECTIVE ONLY IF APPROVED BY THE ELECTORS AT AN ELECTION TO BE HELD ON TUESDAY, NOVEMBER 7, 2000.
Docket Entry 16, at Exhibits 1 and 15.
The election resulted in 154,221 votes for and 138,645 votes against fluoridation of the City's drinking water. Based on these results, the City certified the Fluoride measure as having passed by a margin of 15,576 votes. Plaintiffs contend that the special election results should be voided or nullified due to certain election irregularities which took place in violation of several provisions of the Texas Election Code, to wit: (1) the voting precincts for the City's special election were not properly established, pursuant to TEX. ELEC. CODE § 42.062; (2) non-residents of the City of San Antonio, who lived in voting precincts that also contained City residents ("split" precincts), were permitted to vote on the Fluoride issue; (3) non-residents of the City of San Antonio, in precincts wholly outside the City, were permitted to vote on the Fluoride measure; and (4) City of San Antonio residents were prevented from voting in Precinct # 4163. The plaintiffs argue that these irregularities materially affected the outcome of the special election, resulting in over 40,000 "under votes." According to plaintiffs, although these election "irregularities and election code violations were brought to their attention, the City of San Antonio and Norma Rodriguez [have] yet to do anything to change or make it right, the illegal election [sic]."
Id . at Exhibit 5.
Docket Entry 1, Plaintiffs' Original Petition, at ¶ V-VII; and Docket Entry 17.
Docket Entry 17, at ¶ 5 and Exhibit 4. In this case, the term "undervotes" refers to those ballots in which the voter did not choose to vote for or against the Fluoride measure. It should be noted that while plaintiffs originally sought a recount of the cast votes, they have withdrawn that request from the relief requested in this suit. Docket Entry 16, Exhibit 6, plaintiffs' response to defendants' requests for admissions, No. 33, and second requests for admissions, deemed admitted by failure to answer.
Docket Entry 17, at ¶ 2.
In addition, the plaintiffs allege that fluoridating the City's drinking water is unconstitutional because it constitutes forced mass medication of a population (particularly on the minority who voted against fluoridation). Further, plaintiffs contend that the City breached a duty of good faith and fair dealing imposed by its contract with the voters by misrepresenting the benefits and risks of fluoridation.
Docket Entry 1. Plaintiffs' Original Petition, at ¶¶ VIII-X.
Docket Entry 1, Plaintiffs' Original Petition, at ¶ XI; and Docket Entry 17, at ¶ 2.
Plaintiffs originally filed the instant lawsuit on December 12, 2000, in the 131st Judicial District Court of Bexar County, Texas, and the case was styled: Nathan Thompson and Karen Bennett vs. City of San Antonio and Norma Rodriguez, and in her official capacities as City Clerk of the City of San Antonio, Texas, a Municipal Corporation, Civil Action No. 2000-CI-17651. On December 28, 2000, defendants removed the case to federal court, pursuant to 28 U.S.C. § 1331 and 1441(b), on the ground that plaintiffs purportedly allege "violations of the constitution and federal statutes." Once in federal court, plaintiffs' lawsuit was consolidated with another lawsuit filed by plaintiffs against the Bexar County Elections and Gerry Rickhoff, County Clerk, which also dealt with challenges to the special election on the Fluoride measure.
Docket Entry 1, Petition for Removal, at ¶¶ II-III.
Docket Entry 7. The District Court, on September 28, 200, dismissed plaintiffs' claims against these defendants based primarily because these were not proper parties to be sued under Texas law. Docket Entries 18 19.
On August 21, 2001, the defendants, the City of San Antonio and City Clerk Norma Rodriguez, moved for summary judgment with respect to all of plaintiffs' pleaded causes of action. Specifically, they argue: (1) the plaintiffs have failed to establish by clear and convincing evidence that the alleged election irregularities, even if true (which the City strongly disputes), materially affected the outcome of the special election, and as such, the court need not void the same; (2) the fluoride measure, Ordinance 92255, adopted by the City Council was a constitutional exercise of the City's police powers to protect the health, safety and welfare of its residents; and the plaintiffs have failed to show how the ordinance was arbitrary, unreasonable and a clear abuse of those powers; (3) and plaintiffs have failed to establish the viability of their state law claims against them; and even assuming that Texas law recognizes such claims, sovereign immunity nevertheless shields defendants from liability with respect to such claims. In addition, defendants seek an award of reasonable attorneys' fees pursuant to TEX. CIV. PRAC. REM. CODE § 37.009, in the amount of $7,890.00.
Docket Entry 15.
Id . at ¶¶ 5-25.
Id . at ¶ 12; and Docket Entry 16, Exhibits 11 16. Plaintiffs failed to address defendants' request for an award of attorneys' fees.
While not directly addressing the federal constitutional violations purportedly raised in their original petition, plaintiffs' three-page response to defendants' summary judgment motion merely argues that the case is not apt for summary judgment disposition, because it "involve[s] more than just a few straight forward issues as well as witnesses." Plaintiffs then discussed the merits of their state law claims by arguing that they "will show with clear and convincing evidence, the election did not follow the election code, thereby making it an illegal election and the true outcome of an illegal election can only be an illegal election, therefore making it void."
Docket Entry 17, at ¶ 1.
Id . at ¶ 6. While plaintiffs disagree with the defendants' interpretation of some of the summary judgment evidence of record, they failed to provide any affidavit and/or deposition testimony of an eligible voter who was disenfranchised due to the alleged election irregularities made the bases of this suit. Further, and as argued by defendants, even if the court were to subtract the purported "illegal" votes as alleged by plaintiffs from the election results, the margin in favor of fluoridation, while reduced, has not shifted. Docket Entry 15, at ¶¶ 5-12.
Moreover, it should be noted that, although not briefed by defendants, I have significant concerns with respect to the standing of at least one of the pro se plaintiffs, who is a resident of Converse, Texas (clearly outside the City limits). Nevertheless, I will assume, for purposes of ruling on the merits of defendants' motion, that both plaintiffs have standing to bring this action.
Docket Entry 15, at fn.14; and Docket Entry 16, at Exhibit 17.
After having reviewed the summary judgment record, the legal arguments made by both parties and the applicable statutory and case authority, it is my opinion that plaintiffs have failed to meet their burden of establishing a cognizable federal constitutional violation and that their purported federal claim should be dismissed as a matter of law. Because no federal question jurisdiction exists, the Court should decline to exercise supplemental jurisdiction over plaintiffs' state law claims and should enter an Order remanding the same to state court.
I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring all pretrial matters in this proceeding to me for disposition by order, or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.
Docket Entry 5.
III. Issue PresentedWhether plaintiffs have presented a valid federal constitutional challenge to the Fluoride measure and the City's November 7, 2000 special election?
IV. Summary Judgment Standard
Federal Rule of Civil Procedure 56(b) provides that a defending party may, at anytime, move with or without supporting affidavits for a summary judgment in the party's favor. Summary judgment shall be rendered if the pleadings and evidence show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. The party opposing a motion must present affirmative evidence to defeat a properly supported motion for summary judgment. An adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial; if he does not so respond, summary judgment, if appropriate, shall be entered against him.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. The dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. All of the evidence and inferences drawn from that evidence must be viewed in the light most favorable to the party opposing the motion for summary judgment.
Anderson, 477 U.S. at 247-248.
A. Plaintiffs' Federal Constitutional Challenges to the Fluoride Measure
1. Did the Defendants Act Arbitrarily, Unreasonably or With a Clear Abuse of Power?
Plaintiffs' purported federal constitutional claims are stated in Paragraph X of their Original Petition, where they assert that:
The Constitution and state and Federal Statutes were violated in that there is no basis in law for a majority of voters to medicate any minority in the absence of a public issue of safety. In other words, a vote as to elective or prophylactic medication of drinking water is unreasonable and unconstitutional as a matter of law.
Docket Entry 1.
This is all that plaintiffs have pleaded as a federal cause of action. No specific federal statute or provisions of the United States Constitution are mentioned. Further, plaintiffs' three-page summary judgment response is silent as to the bases and/or scope of their federal claims. I will nevertheless discuss whether a fundamental constitutional right is involved in this lawsuit, and then I will proceed to address whether plaintiffs' pleaded paragraph is sufficient to establish a viable due process and/or equal protection challenge under the XIV Amendment to the United States Constitution.
According to Texas law, the City Council, the legislative body of the City, has both "the authority and responsibility to determine, as a matter of fact, whether injecting fluoride into the City's water supply is an act in furtherance of the public's health, safety, and welfare." The City Council must first decide the necessity and reasonableness of the ordinance. A court will not substitute its discretion for that of the governing body of a city. Although reasonable minds may differ as to whether a particular ordinance is an act in furtherance of the public's health, safety, and welfare, this is not evidence that the City clearly abused its discretion.
See City of Houston v. Johnny Frank's Auto Parts Co., 480 S.W.2d 774 (Tex.Civ.App.-Houston [14th Dist.] 1972, writ ref'd n.r.e.). It should be noted that fluoridation of the City's drinking water has not yet occurred.
See Safe Water Foundation of Texas, et al. v. City of Houston, 661 S.W.2d 190, 191-92 (Tex.Civ.App.-Houston [1st Dist.] 1983, writ ref'd n.r.e.), appeal dism'd for want of a substantial federal question, 469 U.S. 801 (1984).
Id . See also City of Brookside Village v. Comeau, 633 S.W.2d 790, 792 (Tex.), cert. denied, 459 U.S. 1087 (1982) ("If reasonable minds could differ as to whether the ordinance has a substantial relationship to the protection of the general health, safety, or welfare of the public, and if the evidence reveals a fact issue in this respect, the ordinance must be upheld.").
A municipal ordinance is presumed to be valid, and the party attacking it on constitutional grounds bears an "extraordinary burden" to prove that it is invalid. "When a city government passes an ordinance that is final and conclusive, it cannot be revised by the courts unless the passing of the ordinance was arbitrary, unreasonable, and a clear abuse of power."
See Trail Enterprises, Inc. v. City of Houston, 957 S.W.2d 625, 635 (Tex.App.-Houston [14th Dist.], rev. denied 1997), cert. denied, 525 U.S. 1070 (1999).
Safe Water Foundation of Texas, 661 S.W.2d at 192; Trail Enterprises, Inc., 957 S.W.2d at 634-35. See also Comeau, 633 S.W.2d at 792 ("Courts have no authority to interfere unless the ordinance is unreasonable and arbitrary — a clear abuse of discretion.").
In the instant case, there is no evidence establishing that the San Antonio City Council abused its discretion when it ordered a special election on the issue of fluoridation. The City Council placed the ordinance calling for the election on its agenda, properly noticed the meeting and opened the floor to public comment. Indeed, the summary judgment record reflects that the City Council heard comment and evidence, both pro and con, from interested citizens concerning the effects of fluoridation of the City's water supply. After comment, the City Council passed a resolution requiring fluoridation, subject to the approval of the City's voters expressed through a special election on the issue. Passing the ordinance was a valid exercise of the City's mandate to promote the health, welfare and safety of its citizens, and was not an abuse of discretion. In Safe Water Foundation of Texas v. City of Houston, the only Texas appellate case to discuss this issue, the court held that a city's decision to fluoridate its water supply under circumstances similar to those at issue in this case was neither arbitrary, capricious nor unreasonable. Plaintiffs have offered no evidence that comment or materials were presented to the City Council establishing that the risks associated with fluoridation are unreasonable; at most, the matters presented to City Council by the fluoride opponents may suggest that the issue is debatable. This, however, does not undermine the reasonableness of the City Council's decision to adopt the Fluoride measure as a means of protecting the general welfare of its constituents. Accordingly, the Fluoride measure and the special election were a valid constitutional exercise of the City's police powers. There is simply no proof by the plaintiffs that the City Council, in passing the Fluoride measure and authorizing the special election, acted in a manner that was arbitrary, unreasonable, and a clear abuse of power.
Docket Entry 16, Exhibits 14 and 18.
Id . at Exhibits 1, 14 and 15.
The City of San Antonio has the power to establish acts and ordinances as needed for the welfare, health, safety and convenience of its inhabitants. San Antonio City Charter, Art. I, § 3, ¶ 1. According to the City Charter, the City has the power to adopt and enforce all necessary police, health and sanitary regulations. San Antonio City Charter, Art. I, § 3, ¶ 13 (19). See Docket Entry 15, at fn.10.
Safe Water Foundation of Texas, 661 S.W.2d at 192.
2. Did Defendants Violate a Fundamental Federal Constitutional Right?
Regarding plaintiffs' contention that fluoridation of the City's drinking water constitutes a violation of the United States Constitution, the Texas appellate court decision in Safe Water is again instructive. In that case, the court relied on four cases from other states in which certiorari was denied by the United States Supreme Court, and concluded that because the Supreme Court had consistently declined to recognize the existence of a fundamental constitutional right implicated by the addition of fluoride into the City's water supply, the plaintiffs had no viable grounds to challenge the constitutionality of fluoridation. Further, as quoted by defendants in their motion, the New Jersey Supreme Court, in Young v. Board of Health of Borough of Somerville, made the following poignant statement on the issue:
Safe Water Foundation of Texas, 661 S.W.2d at 192-93 (citing to: Paduano v. City of New York, 45 Misc.2d 718, 257 N.Y.S.2d 531 (N.Y.Sup. 1965), aff'd, 24 A.D.2d 437, 260 N.Y.S.2d 831 (N.Y.A.D. 1965), aff'd 17 N.Y.2d 875, 218 N.E.2d 339, 271 N.Y.S.2d 305 (N.Y. 1966), cert. denied, 385 U.S. 1026 (1967); Schuringa v. City of Chicago, 30 Ill.2d 504, 198 N.E.2d 326 (Ill. 1964), cert. denied, 379 U.S. 964 (1965); DeAryan v. Butler, 119 Cal.App.2d 674, 260 P.2d 98 (Cal.App. 4 Dist. 1953), cert. denied, 347 U.S. 1012 (1954); and Dowell v. City of Tulsa, 273 P.2d 859, 43 A.L.R.2d 445 (Okla. 1954), cert. denied, 348 U.S. 912 (1955)). It should be noted that the United States Supreme Court dismissed the appeal in Safe Water on the grounds that no substantial federal question was presented. 469 U.S. at 801.
Although no harmful results from fluoridation have clearly been proven and it has no effect upon the color, taste or odor of water and despite the health benefits that are clearly derived, proposals to fluoridate drinking water have encountered extraordinary opposition and antagonism. The generative forces of this hostility are not easily identified but have found expression in a variety of arguments. It is contended, variously, that there is a lack of statutory authority for the municipal action; that even if adequate statutory authority can be inferred, fluoridation is an abusive exercise of police power and as such is constitutionally offensive; that it prohibits the free exercise of religion by imposing medication upon those who would resist it; and that it otherwise constitutes a deprivation of personal liberties. The courts throughout the nation have been virtually unanimous in resisting these as well as other arguments, and in upholding fluoridation of drinking water as a valid public health measure whenever a challenge has been presented. [. . .] The unanimity of appellate state court holdings is matched only by the frequency and persistent regularity with which the United States Supreme Court has declined review.
61 N.J. at 78,293 A.2d at 165. See also Docket Entry 15, at fn.12.
Accordingly, to the extent that plaintiffs argue that the City's Flouride measure enabling the special election violates a fundamental right protected by the United States Constitution, that claim should be dismissed because it lacks merit under the case authority cited above.
Similarly, plaintiffs have failed to state a federal claim premised on a "right to vote" theory. Plaintiffs may have attempted to state a claim that their fundamental right to vote was violated when the City passed a resolution enabling a special election which excluded non-City residents who were served by the San Antonio Water System, the agency in charge of fluoridating the City's drinking water. Assuming that plaintiffs have standing to assert this claim, nothing in the language of the United States Constitution commands direct democracy, and I am aware of no authority supporting this argument. In fact, every decision of which I am aware has held that regulations on the power of initiatives, referendums or resolutions are stated-created rights and are therefore not guaranteed by the United States Constitution. "Where a state provides for an expression of direct democracy, such as by initiative or referendum, it does so as a matter of legislative grace; the right to participate in such a process is not fundamental to our Constitution." The City Council in this case acted well within its constitutionally permissible authority in passing a resolution to refer the issue of fluoridation to the political processes and granting City residents the option to vote on the issue through a special election. "Where no clear threat to constitutional rights is presented, courts should be reluctant to reverse the wishes of the people or their representatives, especially when effective political checks exist to gauge the popular will."
The right to vote in a general election, i.e., the right to participate in representative government, is a fundamental constitutional right that may not be abridged absent a compelling state interest. Kramer v. Union Free School District No. 15, 395 U.S. 621, 626 (1969). A referendum, however, is considered a form of direct democracy. The United States Constitution insures a representative form of government, not a direct democracy. See LAWRENCE TRIBE, AMERICAN CONSTITUTIONAL LAW §§ 13-17 at 773 (1978) ("There is, after all, no absolute constitutional requirement that a change be instituted by a political unit whenever a majority of the people in the unit favor it . . .").
See Kelly, 608 F. Supp. at 1038 (allowing the petition for a public referendum be signed only by individuals who were both registered to vote and did vote in the last general election does not contravene the Equal Protection Clause of the United States Constitution, as local referendums, unlike general elections for a representative form of government, are not constitutionally compelled); Save Palisades Fruitlands v. Todd, No. 00-1423, 2002 WL 192095, at *4-6 (10th Cir. Feb. 7, 2002) (voters of county who were prevented from introducing land use proposal on ballot as county-wide initiative by virtue of county's classification as statutory, rather than home rule, under Colorado rule, were not denied fundamental rights to free speech or to vote, as would warrant strict scrutiny of statute granting initiative power to voters of home rule counties, under Equal Protection clause of the Fourteenth Amendment; and power of initiative was not fundamental right, since United States Constitution did not command direct democracy); and Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291, 295 (6th Cir. 1993) (citing Meyer v. Grant, 486 U.S. 414, 424 (1988)).
See Kelly, 608 F. Supp. at 1038 fn.1.
Alkire v. Cashman, 350 F. Supp. 360, 365 (S.D. Ohio 1972) (upholding constitutionality of Ohio statute requiring all public water works systems serving 5,000 or more persons to fluoridate their water), cert. denied, 414 U.S. 858 (1973).
Furthermore, under Texas statutory law, a city is entitled to enact health, safety and welfare ordinances that benefit both city residents and non-residents within a city's extra-territorial jurisdiction. Persons in the extra-territorial jurisdiction are not ordinarily entitled to vote in such municipal affairs. Accordingly, plaintiffs' constitutional rights were not violated by the City's valid exercise of its municipal function when it authorized the fluoridation election.
TEX. LOC. GOV. CODE § 42.904.
3. Did Defendants Violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution?
To the extent plaintiffs' complaint states a violation of a federally recognized equal protection claim, it similarly fails. Because no suspect classification is at issue in this case ( i.e., race or national origin) warranting strict scrutiny or even intermediate review (used in cases where gender-based classifications are at issue), I must analyze plaintiffs' equal protection claim under a rational basis test. To pass equal protection scrutiny under a rational basis review, an ordinance's classification must be rationally related to a legitimate state interest. The City asserts that its Fluoride measure calling a special election is a legitimate exercise of its police power. Reasonable regulations to promote the health, safety, and the general welfare of its people are a valid exercise of a City's police power. Because the plaintiffs have not presented any summary judgment evidence or case authority disputing the City's authority to call such an election, this court should find that the City's Fluoride measure is a valid exercise of the City's police power as a matter of law. This ruling would indeed comport with the overwhelming majority of decisions from other states which have uniformly upheld fluoridation measures as a valid exercise of the states' police powers. Further, courts have also consistently found that Fluoride measures, such as the one at issue in this case, are not defective from the standpoint of due process of law.
See Trail Enterprises, 957 S.W.2d at 634.
Docket Entry 15, at ¶ 21 (citing Illinois Pure Water Committee, 104 Ill.2d at 251, 470 N.E.2d at 992 (rejecting contention that fluoridation imposes upon fundamental right guaranteed by the United States Constitution and that strict scrutiny should be applied to statute enabling fluoridation); and Beck v. City Council of Beverly Hills, 30 Cal.App.3d 112, 115, 106 Cal.Rptr. 163, 165-66 (Cal.App. 2 Dist. 1973) ("[F]luoridation of water is a reasonable and proper exercise of the police power in the interest of public health. The matter is no longer an open question.")).
See Trail Enterprises, 957 S.W.2d at 635.
See DeAryan v. Butler, 119 Cal.App.2d 674, 260 P.2d 98 (Cal.App. 4 Dist. 1953), cert. denied 347 U.S. 1012 (1954); City Commission of City of Fort Pierce v. State ex. rel. Altenhoff, 143 So.2d 879 (Fla.App. 2 Dist. 1962); Kraus v. City of Cleveland, 121 N.E.2d 311, 76 Ohio L. Abs. 214 (Ohio App. 8 Dist. 1954), aff'd, 163 Ohio St. 559, 57 Ohio Op. 1, 127 N.E.2d 609 (Ohio 1955), appeal dism'd for want of a substantial federal question, 351 U.S. 935 (1956); Dowell v. City of Tulsa, 273 P.2d 859, 43 A.L.R.2d 445 (Okla. 1954), cert. denied, 348 U.S. 912 (1955); Opinion of the Justices, 243 A.2d 716 (Del. 1968); Kaul v. City of Chehalis, 45 Wn.2d 616, 277 P.2d 352 (Wash. 1954); Froncek v. City of Milwaukee, 269 Wis. 276, 69 N.W.2d 242 (Wis. 1955); Schuringa v. City of Chicago, 30 Ill.2d 504, 198 N.E.2d 326 (Ill. 1964) (A city council's decision to fluoridate water by one part of fluoride to a million parts of water is a reasonable and proper exercise of the police power in the interest of public health, and the resolution is not subject to constitutional infirmities), cert, denied, 379 U.S. 964 (1965); and Wilson v. City of Council Bluffs, 253 Iowa 162, 110 N.W.2d 569 (Iowa 1961) (A city may enact an ordinance providing for the fluoridation of water to prevent dental decay in children, based on its implied power under statutes permitting it to enact ordinances for the preservation of the health of its inhabitants, and the enactment does not violate statutes dealing with the sale and distribution of poison).
See DeAryan v. Butler, 119 Cal.App.2d 674, 260 P.2d 98 (Cal.App. 4 Dist. 1953); Chapman v. City of Shreveport, 225 La. 859, 74 So.2d 142 (La. 1954), appeal dism'd for want of a substantial federal question, 348 U.S. 892 (1954); and Dowell v. City of Tulsa, 273 P.2d 859, 43 A.L.R.2d 445 (Okla. 1954), cert. denied, 348 U.S. 912 (1955); Crawford et. al. v. City of Detroit et. al, 389 F.2d 1001 (6th Cir. 1968); Readey v. St. Louis County Water Co., 352 S.W.2d 622 (Mo. 1961), cert. denied, 371 U.S. 8 (1962); Miller v. Evansville, 247 Ind. 563, 219 N.E.2d 900 (Ind. 1966); Baer v. Bend, 206 Or. 221, 292 P.2d 134 (Or. 1956); Birnel v. Town of Fircrest, 53 Wn.2d 830, 335 P.2d 819 (Wash. 1959), appeal dism'd for want of a substantial federal question, 361 U.S. 10 (1959); and Alkire v. Chapman, 350 F. Supp. 360 (S.D. Ohio 1972), cert. denied, 414 U.S. 858 (1973).
For these reasons, it is my recommendation that defendants' motion for summary judgment with respect to plaintiffs' federal constitutional claims should be GRANTED as plaintiffs have failed to allege a violation of a constitutional right protected by the United States Constitution.
B. Plaintiffs' Pendent State Claims
In this removed action, defendants request this federal district court to resolve the claims brought by plaintiffs by interpreting Texas statutory law, such as the Texas Election Code, and state tort law, apart from any federal question jurisdiction. This court should decline to do so. The exercise of pendent jurisdiction is always discretionary. As articulated by the United States Supreme Court in United Mine Workers of America v. Gibbs, the doctrine of pendent or supplemental jurisdiction is a doctrine of flexibility, designed to allow "courts to deal with cases involving pendent claims in the manner that most sensibly accommodates a range of concerns and values." Accordingly, the United States Supreme Court has indicated that the exercise of the district courts' discretion should involve "considerations of judicial economy, convenience and fairness to litigants" and "[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties."
See United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966); Evans v. City of Dallas, 861 F.2d 846 (5th Cir. 1988); and Laird v. Board of Trustees of Institutions of Higher Learning of State of Mississippi, 721 F.2d 529 (5th Cir. 1983); and City of Chicago v. International College of Surgeons, 522 U.S. 156 (1997) (citations omitted).
383 U.S. 715, 726 (1966).
Id . at 726-27. See also Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 (1988) (discussing pendent claims removed to federal court).
The supplemental jurisdiction statute codifies these principles. After establishing that supplemental jurisdiction encompasses "other claims" in the same case or controversy as a claim within the district courts' original jurisdiction, 28 U.S.C. § 1367(a), the statute confirms the discretionary nature of supplemental jurisdiction by enumerating the circumstances in which district courts may refuse its exercise:
(c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if —
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
In this regard, the United States Supreme Court in City of Chicago v. International College of Surgeons held that federal courts may decline to exercise jurisdiction over supplemental state law claims " [d]epending on a host of factors . . . including the circumstances of the particular case, the nature of the state law claims, the character of the governing state law, and the relationship between the state and federal claims." The statute thereby reflects the understanding that, when deciding whether to exercise supplemental jurisdiction, "`a federal court should consider and weigh in each case, and at every state of the litigation, the values of judicial economy, convenience, fairness, and comity.'"
522 U.S. at 172-74 (Emphasis added).
Id . at 533 (quoting Cohill, 484 U.S. at 350).
In this case, three important factors govern this court's exercise of discretion. First, the federal constitutional claims, which support pendent jurisdiction over the state law claims, should be dismissed as a matter of law. Under these circumstances, the pendent claims should be dismissed as well. Secondly, federal courts should abstain from resolving novel or complex issues of state law which involve the state's own political process. And thirdly, it is evident that plaintiffs' state law claims, asserting violations of the Texas Election Code and other common law cause of action sounding in tort, substantially predominate over the purported federal claims over which this court has original jurisdiction. Further, the interests of comity between the state and federal systems demand that plaintiffs' claims be resolved in a Texas court. Accordingly, plaintiffs' pendent state law claims should be dismissed. Considering that plaintiffs originally filed this lawsuit in state court, the court should enter an Order remanding plaintiffs' state law claims to that forum, pursuant to 28 U.S.C. § 1447(c).
For the reasons outlined above, I recommend that defendants' motion for summary judgment (Docket Entry 15) be GRANTED . Because plaintiffs have failed to establish a cognizable federal constitutional claim, this court lacks subject-matter jurisdiction to hear this case. If the District Court agrees with this recommendation by dismissing all claims over which it has original or federal question jurisdiction, it should decline to exercise supplemental jurisdiction over plaintiffs' pendent state law claims, pursuant to 28 U.S.C. § 1367(c)(1-4). In that regard, I further recommend that plaintiffs' pendent state law claims be REMANDED to state court, pursuant to 28 U.S.C. § 1447(c). Since defendants' request for an award of attorneys' fees is included under its discussion seeking summary judgment on plaintiffs' alleged claims of election irregularities in violation of the Texas Election Code (Docket Entry 15, at ¶ 12), claims from which this court should abstain from ruling on the merits, defendants' request for attorneys' fees should be DENIED .
VII. Instructions For Service And Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this Memorandum and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to Title 28 U.S.C. § 636(b)(1) and FED. R. Civ. P. 72(b), any party who desires to object to this report must serve and file written objections to the Memorandum and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Memorandum and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
See Thomas v. Arn, 474 U.S. 140, 149-152 (1985).
Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).