# Reply Brief — D. H. L. Associates, Inc. v. O'Gorman > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0768%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 2000 - **Citation:** 529 U.S. 1110 ## Text 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 PS this inensticaubitensabindasiiekian corasiedSaccecsea: 4 Be ote OL NE ) ll 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 I oa icidakxviatdnnsinsedewerVanaddeeaeaurnehetnans United States Code BD U.S.C. FB UGGS 2... nccccecsvccceccecscsccccsscsncees : a 3 P ‘ ; 2 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0768%3A4. Public record. Not legal advice.