Richard D. McINTYRE, Petitioner-Appellant, v. Michael FALLAHAY and Frank McCloskey, Respondents-Appellees. Frank McCLOSKEY, Petitioner-Appellee, v. Richard D. McINTYRE, Respondent-Appellant.
Nos. 85-1210, 85-1238
United States Court of Appeals, Seventh Circuit
Decided July 2, 1985
766 F.2d 1078
Before FLAUM and EASTERBROOK, Circuit Judges, and SWYGERT, Senior Circuit Judge.
The judgment is reversed with directions to the district court to order Walberg released from custody under the sentences imposed by Judge Seraphim, unless the state brings Walberg to trial within 120 days.
REVERSED WITH DIRECTIONS.
WESLEY E. BROWN, Senior District Judge, dissenting.
I must respectfully dissent from the majority opinion because of my belief that the petitioner failed to carry his burden of proof to support his contention that he was denied effective assistance of counsel contrary to his constitutional right to due process of law.
I believe that the findings of fact by the Wisconsin court must be accorded a “presumption of correctness” in this habeas corpus case, under the rule of Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). In the absence of any evidence that the conduct of the judge affected trial counsel or the jury at the subsequent trial, I believe this presumption must prevail.
While I recognize that the decision of this Circuit in Margoles v. Johns, 660 F.2d 291 (7th Cir.1981), cert. den., 455 U.S. 909, 102 S.Ct. 1256, 71 L.Ed.2d 447 (1982), involved a civil action, the ruling there is most persuasive that proof, as opposed to speculation, of the denial of due process is required:
“A litigant is denied the fundamental fairness to which he is constitutionally entitled if the judge of his case is unfairly biased against him. However, a litigant is not denied due process by either the ‘appearance’ of partiality or by circumstances which might lead one to speculate as to a judge‘s impartiality. A litigant is denied due process if he is in fact treated unfairly.” 660 F.2d at 296, (emphasis of the court).
Here, I do not believe that speculation or the “appearance” of a denial of due process, should override the findings of the state courts, or the conclusion of the federal district court.
It is to be noted that under the amendment to
I would affirm the judgment below.
Richard D. MCINTYRE, Petitioner-Appellant, v. Michael FALLAHAY and Frank McCloskey, Respondents-Appellees. Frank McCLOSKEY, Petitioner-Appellee, v. Richard D. MCINTYRE, Respondent-Appellant. Nos. 85-1210, 85-1238. United States Court of Appeals, Seventh Circuit. Argued June 7, 1985. Decided July 2, 1985.
Stanley C. Fickle, Barnes & Thornburg, Indianapolis, Ind., for respondents-appellees.
EASTERBROOK, Circuit Judge.
The contest between Richard McIntyre and Frank McCloskey for the Eighth Congressional District in Indiana was the closest election in the history of the House of Representatives. On election night in November 1984, the count showed McCloskey the winner by 72 votes. After a correction of the returns from Gibson County, the count showed McIntyre ahead by 34 votes. The Secretary of State of Indiana gave McIntyre a certificate of election.
Both contestants sought recounts in particular counties. By the time the House of Representatives assembled, the recounts (and challenges to the recounts) had not been completed. The House seated neither contestant and directed the Committee on House Administration to investigate. H.Res. 1, 99th Cong., 1st Sess. (Jan. 3, 1985). The Committee decided to have its own recount. At the end of this recount, explicitly conducted under the Committee‘s rules rather than Indiana‘s for determining which ballots would count and which not, the Committee determined that McCloskey had won by four votes (116,645 to 116,641). H.R.Rep. 99-58, 99th Cong., 1st Sess. 2 (Apr. 29, 1985). On May 1, 1985, the House seated McCloskey.
The case before us arose out of the recount proceedings in Indiana. Under Indiana‘s procedures, a court appoints three commissioners who supervise the recount in a county. The commissioners report the new totals. Recounts were begun in fifteen counties, and the fifteen local courts gave the commissioners a variety of instructions (from elaborate rules to “count the ballots“) on how to resolve disputes. After the commissioners had reported the results in two counties, McIntyre filed “Verified Objections to Report of the Recount Commission.” These documents asked the local courts to give the commissioners new legal instructions about which ballots to count; the effect of the new instructions would have been to change the reported vote or to require still a third count of the ballots.
McCloskey removed the proceedings to federal court under
I
After the decision of the district court, the House recounted the votes and
Nothing we say or do, nothing the state court says or does, could affect the outcome of this election.1 Because the dispute is not justiciable, it is inappropriate for a federal court even to intimate how Congress ought to have decided. The doctrine of justiciability is designed to prevent meddlesome advisory opinions fully as much as it is designed to prevent unwarranted interference with decisions properly made elsewhere. See Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962) (the political question doctrine is designed in part to prevent “the potentiality of embarrassment [that would result] from multifarious pronouncements by various departments on one question“); Goldwater v. Carter, 444 U.S. 996, 1005-06, 100 S.Ct. 533, 538-39, 62 L.Ed.2d 428 (1979) (Rehnquist, J., concurring in the judgment); cf. Illinois ex rel. Barra v. Archer Daniels Midland Co., 704 F.2d 935, 941-42 (7th Cir.1983). When a court has no right to determine the outcome of a dispute, it also has a duty not to discuss the merits of that dispute.
Because a federal court may not award relief, the case no longer presents a “case or controversy” within the meaning of
The resolution of the dispute about who is entitled to the seat raises the question whether this court should dismiss the case rather than decide whether the case was properly removed. Ordinarily the appropriate disposition of a case that becomes moot while on appeal is an order vacating the judgment and directing dismissal. Great Western Sugar Co. v. Nelson, 442 U.S. 92, 99 S.Ct. 2149, 60 L.Ed.2d 735 (1979); United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950); CFTC v. Board of Trade, 701 F.2d 653 (7th Cir.1983). This terminates the litigation while preventing the underlying order from spawning adverse legal consequences. But state courts are free to hear disputes that are not “cases or controversies” within the jurisdiction of federal courts. When a case from a state court becomes moot while under review by the Supreme Court, that Court‘s practice therefore has been to dismiss the appeal or petition for certiorari, not to vacate the underlying judgment. E.g., Board of Li-cense Commissioners v. Pastore, 469 U.S. 238, 105 S.Ct. 685, 83 L.Ed.2d 618 (1985). To vacate the state court‘s judgment would be to prevent that court from adjudicating a dispute within its jurisdiction even though not within that of the federal courts.
Similar considerations require us to remand this dispute to the courts of Indiana, if removal was improper, rather than to dismiss the case. We have the power to do this; a federal court does not lack “jurisdiction” just because the controversy is not justiciable. See Baker v. Carr, supra, 369 U.S. at 198, 82 S.Ct. at 699. An order remanding the case is not the sort of interference with the decision of a coordinate branch of government that the political question doctrine forbids. It is a way to remove the case from the docket of the federal courts, as a dismissal for lack of justiciability also removes the case from the docket.
The remand of an improvidently removed case allows the state court to decide for itself whether to proceed. Considerations of federalism, in addition to strictly technical issues under
A case securely dead for state as well as federal purposes doubtless should be dismissed outright. If the parties settle a case that was improvidently removed, the district court should simply dismiss the proceedings. A federal court need not extend litigation that has reached its conclusion. This case, however, has not reached an amicable end. The parties vigorously disagree about how state officials should have recounted the ballots. Although the House took charge of this election, it is not bound to take charge of future elections. In almost every case, the House and Senate accept the certificates of election that come from state counts and recounts. McIntyre and McCloskey may contest an election again, and if they do the procedures Indiana uses to count the ballots may be dispositive.
There is a fine line between the nonjusticiable issue of relief in federal court and any recurring issues of state law. Because McCloskey has been seated, it is not possible for a federal court to opine on the propriety of that decision or award relief; the federal issues therefore no longer present a case or controversy. But the dispute about which rules Indiana should use to resolve controversies about future elections survives. The same questions may arise in the future between the same litigants. The dispute about rules is a controversy “capable of repetition but evading review.” See, e.g., Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969), applying this principle and adjudicating a question about election law even after the results of the election in question had become final. Indiana has a version of this doctrine, and its courts adju-
Indiana may desire to hear the arguments of McIntyre and McCloskey in order to establish legal rules for the next election. In federal cases under the Labor-Management Reporting and Disclosure Act, the Secretary of Labor often asks courts to determine the legality of rules that unions apply in their elections, and courts entertain such disputes even after the term of office at issue has expired, in order to establish the rules for future elections. E.g., Steelworkers Local 3489 v. Usery, 429 U.S. 305, 97 S.Ct. 611, 50 L.Ed.2d 502 (1977) (adjudicating in 1977 a challenge to an election held in 1970); Wirtz v. Bottle Blowers, 389 U.S. 463, 472-76, 88 S.Ct. 643, 648-51, 19 L.Ed.2d 705 (1968) (adjudicating a challenge even though another election had intervened); see also NLRB v. Raytheon Co., 398 U.S. 25, 90 S.Ct. 1547, 26 L.Ed.2d 21 (1970). If the state courts do not wish to shape the rules for use in the future, they may think it appropriate to complete the recount to facilitate a comparison of the results under purely state rules with the results the House obtained by applying federal rules. This comparison would be of historical interest only; the House has decided this election once and for all. But such comparisons ultimately may lead to changes in the rules of either Indiana or the House.
The courts of Indiana are entitled to decide for themselves whether to conduct further proceedings with respect to this election—free, that is, if the cases were improvidently removed. That the case is defunct for purposes of relief in federal courts does not mean that we should prohibit Indiana from adjudicating any issues that remain live under state law—yet prohibition would be the outcome of dismissal rather than remand. No principle of federal law requires Indiana‘s courts to conduct further proceedings; we do not intimate that the state courts should do so; the state courts are free to decline to proceed; but if the cases were improvidently removed, no principle of federal law bars such proceedings, either. If the cases were properly removed, however, then the only appropriate disposition is dismissal. See Cook v. Weber, 698 F.2d 907 (7th Cir.1983).
II
The cases were removed under
The parties do not agree about whether the “Verified Objections” were judicial proceedings. McIntyre says they were not (and hence were not removable), citing Roudebush, supra, in which the Supreme Court described the action of Indiana courts in appointing commissioners as not judicial in character. 405 U.S. at 21, 92 S.Ct. at 808. McCloskey says that “Verified Objections” are not part of the recount process but are new litigation challenging the outcome of the recount, which makes them judicial and so removable. Cf. Miles v. Eltzroth, 170 Ind.App. 37, 351 N.E.2d 77 (1976). McIntyre says that his complaint raises only issues of state law and so does not present a federal question; invoking the “well pleaded complaint” rule, he observes that his “Verified Objections” do not even mention federal law. See Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S.Ct. 724, 725, 58 L.Ed. 1218 (1914). Under this rule a claim is within the original jurisdiction of a federal court only if a right or immunity is an essential element of the plaintiff‘s claim. Gulley v. First National Bank in Meridian, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936). McCloskey replies that federal law so occupies the field that any claim challenging the results of the recount necessarily arises under federal law. If it is impossible to frame a complaint under state law, the plaintiff‘s effort to do so does not prevent removal. Any adjudication “necessarily” calls for resolution of federal issues that are essential to the claim, could have been brought in the district court, and therefore is removable. Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 13-27, 103 S.Ct. 2841, 2848-2856, 77 L.Ed.2d 420 (1983). McIntyre rejoins that not all cases of preemption permit removal, and that this one does not come within the scope of Franchise Tax Board.
We need not decide whether the Indiana proceeding was “judicial” or the extent to which federal preemption creates a right to remove. See Oglesby v. RCA Corp., 752 F.2d 272 (7th Cir.1985). We conclude that federal law does not occupy the field. Roudebush v. Hartke shows that states may recount their elections even after one candidate has been conditionally seated. Roudebush does not control this case directly, because the Court did not consider in Roudebush whether state or federal rules determine which ballots should be counted. But Roudebush implies, and we hold, that states may use their own law. State and federal rules for counting ballots may coexist.
III
No one doubts that states have the power to draw the lines for congressional districts (subject to constitutional constraints), although these lines may have powerful influences on the outcome. No one doubts that states may select the qualifications of voters or control the methods of access to the ballot, yet again these have undeniable consequences. Cf. Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), one of many cases in which the Court assumes that state rules apply unless unconstitutional. Our history has seen many constitutional amendments altering the states’ control of qualifications. The
The tradition of state control is so powerful that even national legislation may be ineffective if that legislation alters the way states run elections for state and local office concurrent with elections for federal office. See Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970). Congress may legislate with respect to elections;
There is no principled ground on which a court could say that although rules for establishing districts and determining the eligibility of voters rest on state law, rules for counting ballots rest on federal law. All of these issues are covered by
Although the rules for counting and not counting ballots therefore are presumptively rules of state law under
The Contested Elections Act does not purport to lay down rules for counting ballots. It provides no more than that candidates seeking to contest elections may obtain the assistance of the courts to take discovery, which may be presented to Congress. The Act is not exclusive; indeed it was not invoked by either McCloskey or McIntyre, yet the House determined the result. A federal law preempts state law only when the two inevitably conflict or the law contains an explicit preemption clause. E.g., Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985); Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977). The Contested Elections Act neither conflicts with nor expressly preempts state rules. Roudebush was decided after the enactment of the Act, but the Court nonetheless allowed Indiana to recount the votes in what was surely a “contested” election.
The House‘s elaborate set of precedents that grew out of its adjudications of other contested elections comes closer to the mark. These precedents are rules for counting ballots. Under them the House counts all ballots from which the intent of the voter may be discerned, and it disregards “technical” requirements such as the initialling of ballots by election judges. See H.R.Rep. 99-58, supra, at 22-32 (marshalling older cases and establishing rules). But the observation that the House has a set of distinctive federal rules does not automatically lead to the conclusion that no state may have any other set of rules. From the foundation of the Republic, the House and Senate have accepted certificates of election arising out of elections
The House has consistently applied its precedents as substitutes for the rules of state law. It is entitled to do this under
The last question is whether this particular election should be treated differently because the House decided to count the ballots itself. We think not. The decision of the House certainly meant that the state would not have the final say, but then the state never has the final say. Whether or not the House conducts its own count, the state‘s count and the certificate of election are just advice from the state to Congress. The final decision always is that of the House, no matter who counts the ballots and no matter how many times they are tallied.
The root questions, therefore, are whether the states in giving this advice must use the same rules the House would use, and whether the decision of the House to ignore a state‘s advice alters the answer to this question. We explained above why states may give advice in accordance with their own rules. The decision of the House to ignore that advice—the upshot of the decision to count the ballots itself—does not diminish the power of the states to use their own counting rules. Quite the contrary, once the House decides to apply its own rules and count the ballots itself, there is less reason than before to insist that the state use federal rules in any continuing recount. Once the House decides it no longer cares to have the state‘s advice, the state is less constrained than before.
This does not mean that the state may interfere with the House‘s recount. It may not. Because the House is the judge of its own elections, it must have preferential access to the ballots. In the event of any conflict about who is to count which ballots and when, the House prevails. If a continuing state recount should endanger the security of the ballots, the state must desist until the House is done. But there was no conflict over access here. The cases were removed before the House began its count, and if Indiana wants to continue its recount it may do so now without creating multifarious claims of access.
The House‘s initiation of a separate count terminates the state‘s power to count the ballots only if a continuation of the state‘s count would usurp the power of the House to be the final judge of the election. But here, as in Roudebush, “a recount can be said to ‘usurp’ the [House‘s] function only if it frustrates the [House‘s] ability to make an independent final judgment. A recount does not prevent the [House] from independently evaluating the election any more than the initial count does. The [House] is free to accept or reject the apparent winner in either count” (405 U.S. at 25-26, 92 S.Ct. at 810-811 footnotes omitted). There was no independent count by Congress in Roudebush, but
IV
Because the House has settled the election contest, nothing this or any other court can do will affect who represents Indiana‘s Eighth Congressional District through the end of 1986. The dispute at this stage may have more to do with political advantage than with legal rules; both sides may be tempted to employ the courts more to obtain publicity than to achieve justice. There is something unsettling about the prospect of one person sitting in Congress while the other seeks an advisory declaration in state courts that he “really” won. The political question doctrine is designed in part to prevent such unseemly conflicts between federal courts and the political branches of the government. The political question doctrine may not bind the courts of Indiana, but these concerns may lead the state courts to dismiss this litigation nonetheless.
The politics of the dispute, and the seemliness of this litigation, are not our concern. We have decided a single question—whether federal law so occupies the field that any effort to establish legal rules for counting ballots in an election to the House necessarily “arises under” federal law, even if the complaint asks only for the adjudication of issues of state law. We have held that state and federal rules for counting ballots can coexist in the absence of federal legislation explicitly preempting state rules. So long as a state recount does not actually interfere with or usurp the power of the House to be the final judge, the state can use such procedures as it deems wise to render its advice to Congress. Because federal law does not suffuse the field, the cases were improvidently removed. With this conclusion our own power lapses.
The judgments of the district court are vacated. The cases are remanded with instructions to remand both cases to the state courts from which they were removed.
SWYGERT, Senior Circuit Judge, dissenting.
Having found that “[n]othing we say or do, nothing the state court says or does, could affect the outcome of this election,” ante at 1081, the court concludes that it “has no right to determine the outcome of ... [the] dispute [and] also has a duty not to discuss the merits of that dispute,” ante at 1081. Yet the court inconsistently proceeds to decide the merits of the removal of the two State election contests to the federal court and, after ordering a remand, to speculate what the State courts may or may not do, and to evaluate the pursuit of further proceedings in those forums.
I dissent from this approach by the majority including the rendering of such an advisory opinion. In my view, this court is without jurisdiction to remand the cases to the State courts because, aside from the question of mootness, the underlying election controversy is now a nonjusticiable political question.* Once the House has asserted its exclusive jurisdiction under
Although the majority agrees that the House‘s decision to seat McCloskey is a nonjusticiable political question, it defines the State‘s recount as an entirely separate issue that the State courts are free to consider even after the House has reached its final judgment. It is true the States may conduct recounts pursuant to their constitutional power to regulate the time, place, and manner of congressional elections.
Here, however, the circumstances are such that continued recount proceedings are inconsistent with the House‘s absolute, unicameral authority to “Judge ... the Elections, Returns, and Qualifications of its own Members.”
It can be argued that in a polity as open and pluralistic as ours, we should not be too disturbed by the prospect of a State, in effect, “dissenting” from a decision of the House. Yet, such an eventuality will be inconsistent with three fundamental tenets of constitutional law.
First, in our federal system of dual sovereignty, the national government is supreme.
Second, the principle of separation of powers requires the various branches of government to respect power that is unambiguously committed by the constitutional text to a coordinate branch of government. See Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962). The State courts have no more authority than the federal courts to render their own independent pronouncements on an issue unambiguously committed to the House by
Third, ours is a representative democracy. The people of Indiana‘s Eighth Congressional District cannot be properly represented unless the legitimacy and authority of one congressman to represent them are finally determined. Accordingly, once the House makes a final decision to seat a particular candidate, the entire election controversy becomes a political question for two of the reasons noted in Baker, 369 U.S. at 217, 82 S.Ct. at 710: there is “an unusual need for unquestioning adherence to a political decision already made” and there is “the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”
McIntyre‘s remedy is to assert his first amendment rights, as a private citizen, to attack the choice of McCloskey. But he cannot, through the use of State proceedings, enlist the State as an ally in this regard, for such State action contravenes the principles of federal supremacy and separation of powers, as well as inhibits the right of the citizens in the district to be represented in Congress. I would therefore dismiss the consolidated appeals as involving a nonjusticiable political question.