Reply Brief — D. H. L. Associates, Inc. v. O'Gorman

Supreme Court, U.S.

(4 FILED

‘APR 2 6 700

No. 99-1536

ChWHRK

IN THE LANE SS RE SE RO ER RON ci - OED J

Supreme Court of the Gnited States

D.H.L. ASSOCIATES, INC.,

Petitioner,

v.

JOHN O’GORMAN, ETAL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

PETITIONER’S REPLY TO BRIEF IN OPPOSITION

*WILLIAM C. NEWMAN

THOMAS J. MCCORMICK

LESSER, NEWMAN, SOUWEINE

& NASSER

39 Main Street

Northampton, Massachusetts 01060

(413) 584-7331

*Counsel of Record

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..........00-0-0-0-000.. ii

i. A Decision in Petitioner’s Favor on

the State Law Issues Would Resolve

the Entire Case, Including Claims

for Attorneys’ Fees and Costs, With-

out the Need to Address the Federal

Constitutional Questions. ........................ 2

IT. The State Constitutional Questions

Are Either Novel or Involve An Un-

settled Area of Law, and Therefore,

Are Appropriate Issues for Certifica-

tion, Otherwise Both the District

Court and the Court of Appeals

Would Have Decided Them. ..................... 3

Il. The Court of Appeals Applied the

. Wrong Standard to Determine

Whether the Federal Constitutional

Issues Should Be Decided While

Leaving Open for Adjudication by

the State Courts the State Issues

Which May Be Dispositive and

Would Render the Federal Opinion

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TABLE OF AUTHORITIES

CASES:

A.F.M., Ltd. v. City of Medford,

428 Mass. 1020, 704 N.E.2d 184

(2990) ..:iccccsacsmunteuasneeelaee aes

Arizonans for Official English v. Arizona,

520 U.S. 43 (1997) o..ceccccsccsscesseeseeees

Clay v. Sun Insurance Office,

963 U.S. 207 19GUN ccserceliccces

Crane v. Commissioner of Public Welfare,

400 Mass. 46, 507 N.E.2d 751

(1Q9BT) cccciaconscaante enema

Johnson v. Commissioner of Public Wel-

fare, 419 Mass. 185, 643 N.E.2d

444 (1990) cscudaccc ee

Maher v. Gagne, 448 U.S. 122 (1980) ........

Michigan v. Long, 463 U.S. 1031 (1983) ....

T & D Video v. City of Revere,

423 Mass. 577, 670 N.E.2d 162

(ROWED ocxrsaseccucans ene eta

OI clin ts tinea tthitn teas nibh ne

CONSTITUTIONAL PROVISIONS AND CODES:

United States Constitution

First AMeENAMENL ............cececeneeeeeeeeeeeseoers

Massachusetts Declaration of Rights

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United States Code

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PETITIONER’S REPLY TO BRIEF IN

OPPOSITION

In this Reply, the petitioner responds to three

arguments made by the respondents in their Brief

in Opposition (“Opposition”) that are claimed to

support the decision of the federal courts to ad-

dress the federal constitutional claims and with-

hold decision on the potentially dispositive state

claims that may render the federal decision advi-

SOry:

(1)

(2)

(3)

that a claim for attorneys’ fees re-

quires a federal court to decide fed-

eral constitutional questions on

which the court otherwise would ab-

stain, Opposition, pp. 15-16;

that it was proper for the federal

courts to decline to certify the state

issues because the questions were

settled and not novel, Opposition, pp.

6-10; and

that the jurisdictional standard in

Michigan v. Long governs certification.

Opposition, pp. 13-15.

* i.

I. A Decision in Petitioner’s Favor on the

State Law Issues Would Resolve the En-

tire Case, Including Claims for Attor-

neys’ Fees and Costs, Without the Need

to Address the Federal Constitutional

Questions.

The respondents contend that certifying the

state constitutional questions to the Massachu-

setts Supreme Judicial Court would “not obviate

the need for adjudication of the federal questions

. . . [because] DHL would have to succeed in its

federal claims to obtain an award of attorneys

[sic] fees and costs... .” Opposition, p.15. This

contention simply is wrong as a matter of law.

When a case involves both state and 42 U.S.C.

§ 1983 claims, a plaintiff is entitled to an award of

attorneys’ fees under § 1983 when the case is de-

cided solely on the basis of a state claim as long

as the federal claims are substantial and arise out

of a “common nucleus of operative fact.” Maher v.

Gagne, 448 U.S. 122, 132 n.15 (1980)(citations

omitted). Johnson v. Commissioner of Public Wel-

fare, 419 Mass. 185, 187, 643 N.E.2d 444

(1994)(same); Crane v. Commissioner of Public

Welfare, 400 Mass. 46, 49-50, 507 N.E.2d 751

(1987)(same).!

1 Like certification, the Maher rule furthers the goal of

vindicating rights “without undermining the longstanding

judicial policy of avoiding unnecessary decision of impor-

tant constitutional issues.” Maher, 448 U.S. at 133 (cita-

tions omitted).

Here, the federal courts and the parties all

agree that the state and federal constitutional

claims arise from the same operative facts and

that the latter claims are substantial. Accord-

ingly, if the state constitutional law questions

were reached and resolved in the petitioner’s fa-

vor, the entire case — including the attorneys’

fees issue — would be resolved without the need

for any court to address the federal constitutional

questions.

II. The State Constitutional Questions Are

Either Novel or Involve An Unsettled

Area of Law, and Therefore, Are Appro-

priate Issues for Certification, Otherwise

Both the District Court and the Court of

Appeals Would Have Decided Them.

After reaching the First Amendment issues, the

district court remanded the state constitutional

questions to the state courts for adjudication.

The respondents did not contest this order, and

the Court of Appeals let it stand.

Accordingly, the respondents’ claim that the

State issues are neither novel nor unsettled is

clearly frivolous. If the issues were clear and set-

tled, the lower federal courts would have decided

them. Clay v. Sun Insurance Office, 363 U.S. 207,

209-10 (1960).

Indeed, District Court Judge Keeton explained

during the trial of this case that he was reluctant

to decide the case on state constitutional grounds

precisely because Massachusetts’ article 16 juris-

prudence in this area of adult entertainment is

unsettled. Petition for a Writ of Certiorari (“Peti-

tion”), pp. 8-9, Appendix, p. 75a.?

III. The Court of Appeals Applied the Wrong

Standard to Determine Whether the Fed-

eral Constitutional Issues Should Be De-

cided While Leaving Open for Adjudica-

tion by the State Courts the State Issues

Which May Be Dispositive and Would

Render the Federal Opinion Advisory.

In its decision, the Court of Appeals stated

without citation that “[b]ecause we are not con-

vinced that state law provides an independent

and sufficient basis for deciding the case,” the

district court did not err by declining to certify the

state law questions. Petition Appendix at 25a.

The phrase “independent and sufficient basis” ar-

guably conjures up the jurisdictional standard of

Michigan v. Long, 463 U.S. 1031 (1983), where

this Court articulated the test for determining

whether the federal courts should exercise juris-

diction over a federal question when a state’s

2 The respondents also mention timeliness. Opposition, .

pp. 2, 16-17. The remand and certification motions were

decided on the merits. Timeliness was not a consideration.

In any event, the motions were timely, prompted by the de-

cisions of the Supreme Judicial Court in T & D Video v. City

of Revere, 423 Mass. 577, 670 N.E.2d 162 (1996) and

A.F.M., Ltd. v. City of Medford, 428 Mass. 1020, 704 N.E.2d

184 (1999), which were decided two and five years, respec-

tively, after this case was filed by the petitioner in state

court and removed to federal court by the respondents.

highest court has decided the case arguably un-

der both state and federal law grounds. Long

held that a federal court may not reach the fed-

eral question in such circumstances if the state

court’s state law decision is based on adequate

and independent state. grounds appearing plainly

in its written decision.

In their brief, the respondents faulted the peti-

tioner for failing to mention the Long standard in

its Petition. Opposition, pp. 13-14. Long’s hold-

ing, however, has no application to the present

case. The tests for certification are the related

threshold questions whether the state law issues

are unsettled and whether resolution of the state

law questions may dispose of the case, Arizonans

for Official English v. Arizona, 520 U.S. 43, 78-79

(1997) — not whether the state law provides an

adequate and independent basis for deciding the

case. No basis for certification exists if the state

law is reasonably clear. The federal court simply

would, as all federal courts routinely do, decide

the state claim. By applying the Long test to the

certification question, the Court of Appeals erred.

CONCLUSION.

For the above reasons, and for the reasons

Stated in its Petition, the petitioner respectfully

requests that this Court grant certiorari to resolve

the important question of when federal courts

should decide federal constitutional issues, but

leave unresolved for remand the potentially dis-

positive state law claims.

Respectfully submitted,

The Petitioner,

by its attorneys,

*WILLIAM C. NEWMAN

THOMAS J. MCCORMICK

LESSER, NEWMAN, SOUWEINE

& NASSER

39 Main Street

Northampton, Massachusetts 01060

(413) 584-7331

*Counsel of Record