McIntyre v. Fallahay

• Decision Date: 02 July 1985
• Docket Number: 85-1238,Nos. 85-1210,s. 85-1210
• Citation: 766 F.2d 1078
• Parties: Richard D. McINTYRE, Petitioner-Appellant, v. Michael FALLAHAY and Frank McCloskey, Respondents-Appellees. Frank McCLOSKEY, Petitioner-Appellee, v. Richard D. McINTYRE, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1078

766 F.2d 1078

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.

Theodore Lockyear, Lockyear & Kornblum, Evansville, Ind., for petitioner-appellant.

Stanley C. Fickle, Barnes & Thornburg, Indianapolis, Ind., for respondents-appellees.

Before FLAUM and EASTERBROOK, Circuit Judges, and SWYGERT, Senior Circuit Judge.

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 28 U.S.C. Sec. 1441(a). He maintained that the "Verified Objections" raise issues of federal law because federal law has so occupied the field that only federal principles can be used to determine which ballots count in an election for a federal office. McIntyre moved to remand the cases under 28 U.S.C. Sec. 1447(c), arguing that because the "Verified Objections" raised only issues of state law they were not within the original jurisdiction of the district court and hence not removable. The district court sided with McCloskey, holding that federal law occupies the field and that there is "no state law" applicable to the dispute. The district court then dismissed the proceedings because, in its view, the state courts lacked jurisdiction to determine the federal issues. Because the district court cannot have jurisdiction when the state court had none, the proceedings had to be terminated.

I

After the decision of the district court, the House recounted the votes and seated McCloskey. The House acted under Art. I, sec. 5, cl. 1 of the Constitution, which provides that "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members." The House is not only "Judge" but also final arbiter. Its decisions about which ballots count, and who won, are not reviewable in any court. Roudebush v. Hartke, 405 U.S. 15, 19, 92 S.Ct. 804, 807, 31 L.Ed.2d 1 (1972); Barry v. United States ex rel. Cunningham, 279 U.S. 597, 613, 49 S.Ct. 452, 455, 73 L.Ed. 867 (1929). As the Court said in Barry, the House has the authority "to determine the facts and apply the appropriate rules of law, and, finally, to render a judgment which is beyond the authority of any other tribunal to review." Ibid.

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 Article III. In Roudebush the Supreme Court held that a dispute about a recount of a contested election in Indiana was not moot because the Senate had seated the winner only conditionally, pending the outcome of the suit. The Court explained that once the "case is resolved and the Senate is assured that it has received the final Indiana tally, the Senate will be free to make an unconditional and final judgment under Art. I, Sec. 5. Until that judgment is made, this controversy remains alive" (405 U.S. at 19, 92 S.Ct. at 808). The House has made its "unconditional and final judgment." It has counted the votes independently and is no longer interested in the final Indiana tally.

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 License Commissioners v. Pastore, --- U.S. ----, 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. Section 1447(c) itself calls for a district court to remand (rather than dismiss) cases in which it is without jurisdiction, which states a choice between ways to dispose of cases no longer within judicial power under Article III. Although we have not found any case that became nonjusticiable following removal, the same disposition is appropriate. If the case did not belong in federal court at all, it should be remanded rather than dismissed.

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 Sec. 1447(c), require that district courts not preclude state courts from hearing disputes that states may deem sufficiently "live" for their own purposes. A removal, no less than an injunction, bars the state courts from completing litigation begun there. The Supreme Court has held repeatedly that federal courts may not bar ongoing proceedings in state courts or agencies that involve exercises of state governmental power unless the proceedings were brought in bad faith or there are other extraordinary circumstances. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). The Court therefore has construed removal statutes narrowly in order to protect state interests. E.g., Johnson v. Mississippi, 421 U.S. 213, 95 S.Ct. 1591, 44 L.Ed.2d 121 (1975). This should teach us to remand, rather than dismiss, whenever that is within our power.

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...