Summary
granting plaintiff's motion for voluntary dismissal of dormant Commerce Clause claim
Summary of this case from City of Hugo v. NicholsOpinion
CIVIL ACTION NO. 00-12049-DPW
May 23, 2003
MEMORANDUM AND ORDER
The City of New Bedford, Massachusetts and the New Bedford Harbor Development Commission brought this suit against the Woods Hole, Martha's Vineyard and Nantucket Steamship Authority alleging that the Enabling Act which created the Steamship Authority is preempted by Federal law enacted pursuant to the Commerce Clause of the United States Constitution. The New Bedford plaintiffs also contend that the Enabling Act violates dormant aspects of the Commerce Clause. At the conclusion of discovery, the Steamship Authority moved to dismiss, asserting that the New Bedford plaintiffs lacked standing to litigate the case, and for partial summary judgment on the principal preemption and dormant Commerce Clause claims.
This litigation has functioned as an adjunct to a political initiative through which the City of New Bedford has sought greater opportunities as a port to serve Martha's Vineyard and Nantucket and greater influence in the policies of the Steamship Authority. The Steamship Authority was not particularly accommodating to this initiative. After the Steamship Authority's post discovery dispositive motions were briefed and argued, however, a truce of sorts was negotiated when the Massachusetts legislature enacted an amendment to the Enabling Act, granting a seat on the Steamship Authority board to the City of New Bedford. 2002 Mass. Acts ch. 243. The amendment was apparently facilitated by a promise from the plaintiffs to dismiss this case and not to renew their claims for at least five years. The plaintiff's motion for dismissal without prejudice now before me is the fruit of this compromise.
The Steamship Authority opposes dismissal without prejudice and seeks instead to have any dismissal be with prejudice and consequently effectively on the merits. The Steamship Authority observes that the plaintiff's motion for dismissal was not filed until after substantial resources had been devoted to litigating the plaintiffs' claims. Essential fairness, the Steamship Authority argues, requires that it be protected from the need to repeat such an effort.
My inclination when confronting the plaintiffs' motion to dismiss was to find significant force to the Steamship Authority's position. I initially determined to resolve the defendant's outstanding dispositive motions with a fully reasoned opinion on the merits as one aspect to the exercise of my obligation under Fed.R.Civ.P. 41(a)(2) to set proper terms and conditions for the dismissal sought by the plaintiffs.
After considerable research and reflection, however, I have come to conclude that it would be improvident to resolve this action by anything other than a dismissal that is without prejudice. Any determination by me of the difficult open issues of law these public parties have argued would be, under the circumstances, in the nature of an advisory opinion on topics which are now — and will remain for an appreciable period of time — essentially moot. Moreover, dismissal with prejudice would presumably foreclose later, fully reasoned, resolution of these important issues on their legal merits if they ceased to be moot at some point in the future. Given the seriousness of the unsettled issues affecting the public interest, I believe a disposition purporting to have preclusive finality would be an inappropriate exercise of judicial power.
I note that I view the reported promise by the plaintiffs — that the dismissal would be effective to compose their dispute for at least five years — to be essentially independent of this litigation. Consequently, I will not incorporate that undertaking in any court order. Jurisdiction to enforce any such promise would presumably be in state court given the lack of apparent diversity jurisdiction among the interested parties.
The principal procedural question at issue — whether a political subdivision of a state has standing to litigate in federal court against another political subdivision of the same state — is one on which the circuits are presently split. See generally Palomar Pomerado Health Sys. v. Belshe, 180 F.3d 1104, 1108-1111 (9th Cir. 1999) (Hawkins, J., concurring) (describing split in circuits). Compare Burbank-Glendale-Pasadena Airport Authority v. City of Burbank, 136 F.3d 1360, 1363-64 (9th Cir. 1998) and City of South Lake Tahoe v. California Tahoe Regional Planning Agency, 625 F.2d 231, 233-34 (9th Cir. 1980), with Branson School District v. Romer, 161 F.3d 619, 628 (10th Cir. 1998); City of Charleston v. Public Service Commission of West Virginia, 57 F.3d 385, 388-90 (4th Cir. 1995); Housing Auth. of Kaw Tribe of Indians of Okla. v. City of Ponca City, 952 F.2d 1183, 1189-90 (10th Cir. 1980); South Macomb Disposal Auth. v. Township of Washington, 790 F.2d 450, 503-04 (6th Cir. 1986); Rogers v. Brockette, 588 F.2d 1057, 1069 (5th Cir. 1979). There is as yet no governing First Circuit law on this question.
Similarly, the broader merits problem at issue — that of defining the scope of the Commerce Clause in cabining the arrangements states may make under our federal system in the exercise of their sovereignty — has recently been undergoing active reconsideration in the Supreme Court of the United States. See generally Stephen Breyer, Our Democratic Constitution, 77 N.Y.L.Rev. 245, 257-61 (2002). The better part of wisdom in such an unsettled period may be to recognize, without resolving, the open issues and effectively adopt the Restatement position ironically suggested by Thomas Reed Powell at another time of uncertainty about the jurisprudence of the Commerce Clause. Paul Freund reports that
Professor Powell used to say that he could easily prepare a Restatement of Constitutional Law. In the usual form, the black-letter text would read: "Congress may regulate interstate commerce." A Comment would add: "The state may also regulate interstate commerce, but not too much." And then there would follow a Caveat: "How much is too much is beyond the scope of this Restatement."
Paul Freund, Introduction to Thomas Reed Powell, Vagaries and Varieties in Constitutional Interpretation ix (AMS Press 1967) (1956).
In the final analysis this proceeding illustrates that litigation of public policy questions is frequently deployed by parties to serve the same function that Clausewitz nearly two centuries ago identified for war. It is "a continuation of policy with other means." Carl Von Clausewitz, Note of 10 July 1827 in On War 69, (Michael Howard Peter Paret eds. trans., Princeton U. Press 1976) (1832). This is no doubt because, as Tocqueville observed at about the same time, "[t]here is almost no political question in the United States that is not resolved, sooner or later, into a judicial question." Alexis De Tocqueville, Democracy in America 257 (Harvey C. Mansfield Delba Whitney ed. trans., U. Chi. Press 2000) (1835). When and how the courts ought to be employed in political policy disputes are challenging questions. That they are — as one was here — is unchallenged. Yet while the judicial process may be invoked by parties for political purposes, a judicial judgment should not undertake to resolve an unresolved political or policy issue in the absence of a continuing adversarial posture on the part of the litigants. A resolution of this litigation by a dismissal with prejudice pursuant to Fed.R.Civ.P. 41(a)(2) would indirectly constitute such a resolution.
Accordingly, I overrule the defendants' objection and ALLOW plaintiffs' motion (No. 98) to dismiss this case without prejudice.