Opinion
No. 5:23-cv-28-BJB
2023-08-18
David GUESS, Plaintiff v. CITY OF PADUCAH, et al., Defendants
Ben E. Stewart, David T. Riley, Grumley, Riley & Stewart, PSC, Paducah, KY, for Plaintiff. Carol S. Petitt, David P. Bowles, Jackson Charles Cooper, Vaughn Petitt Legal Group, PLLC, Pewee Valley, KY, Stacey A. Blankenship, Keuler Kelly Hutchins Blankenship & Sigler LLP, Paducah, KY, for Defendants The City of Paducah, Mayor George Bray, Commissioner Sandra Wilson, Commissioner Raynarldo Henderson, Commissioner Robert Smith.
Ben E. Stewart, David T. Riley, Grumley, Riley & Stewart, PSC, Paducah, KY, for Plaintiff. Carol S. Petitt, David P. Bowles, Jackson Charles Cooper, Vaughn Petitt Legal Group, PLLC, Pewee Valley, KY, Stacey A. Blankenship, Keuler Kelly Hutchins Blankenship & Sigler LLP, Paducah, KY, for Defendants The City of Paducah, Mayor George Bray, Commissioner Sandra Wilson, Commissioner Raynarldo Henderson, Commissioner Robert Smith. OPINION & ORDER Benjamin Beaton, District Judge
David Guess is an elected member of the Paducah Board of Commissioners. On the day of the 2022 general election, the mayor and some Commissioners told the deputy fire chief to remove illegally placed campaign signs promoting Dujuan Thomas, an African American candidate for commissioner. Guess would be re-elected to the same position in the same election that evening. Earlier that afternoon, however, Guess sent messages about Thomas to a city employee—and those messages later became public. See DN 1-2 at 67.
According to the state-court proceedings (see DN 1-2 at 53), five text messages between the two are at issue:
Guess: "you got dujuan [sic] under control"
Deputy fire chief: "he is mad at you lol"
Guess: "Whitey keeping a black man down"
Guess: "Sorry. It just came out. I haven't said one thing this whole election or any day that I'm alive"
Deputy fire chief: "No comment lol"
The other commissioners took swift and official action to condemn Guess's words. They approved a resolution describing the language in these messages as "includ[ing] . . . racial undertones." Id. at 69. And they concluded they had "probable cause to believe that, in sending the text messages at issue, Commissioner Guess engaged in misconduct in the performance of his duties as a City Commissioner." Id. The Board (sans Guess) voted unanimously to remove him from his position under KRS § 83A.040(9), which provides that any elected officer "may be removed from office by a unanimous vote" "in case of misconduct, incapacity, or willful neglect in the performance of the duties of his or her office." See id. at 191.
That same statute goes on to state that "the officer, if removed, shall have the right to appeal to the Circuit Court of the county." § 83A.040(9). Guess exercised that right by challenging his removal in the McCracken (County) Circuit Court. He argued that his removal was arbitrary and capricious because the Board's procedures violated his due process rights, infringed his right to free speech, and flowed from an unconstitutionally vague statute. State Complaint (DN 1-2) ¶¶ 45-46). Guess also sued the City and the individual commissioners for damages under 42 U.S.C. § 1983 on speech grounds. ¶¶ 55-86.
For ease of reference, the state complaint spans PageID automated page numbers at 1-19.
The juxtaposition of the state removal appeal and federal constitutional tort claim renders this an unusual suit, to say the least. The state court issued a temporary restraining order enjoining Guess's removal from (and any replacement to) the office. DN 1-2 at 60 (granting "Motion for Temporary Injunction"). Perhaps counter-intuitively, the Defendants (all state officials) then removed the case to federal court based on the federal-law claim. Notice of Removal (DN 1) ¶ 4. And Guess, preferring his original state forum, filed a motion to remand. DN 4. Shortly thereafter, the parties informed the Court they'd settled the case—allowing Guess to retain his seat and purporting to end this litigation.
*
But there's a catch: the settlement requires the federal court to make permanent and retain jurisdiction over the state court's injunction barring the Board from removing and replacing Guess. Agreed Order of Dismissal (DN 6). At a hearing, the parties confirmed that the proposed order is designed to make permanent the temporary state-court injunction, and emphasized that ongoing judicial supervision was a critical component of their deal. See DN 7. Counsel, however, have not explained why a federal court possesses equitable authority to give "full force and effect" to a state-court injunction "even after" the court dismisses the case. Agreed Order at 1-2.
Presumably "permanence" in the electoral context would not extend past the end of Guess's current two-year term—though the proposed injunction doesn't specify.
The dissonance between a temporary state-court injunction and a permanent federal-court injunction is easy to detect. A preliminary injunction like the one entered before removal typically serves to preserve the status quo during litigation. See, e.g., Burniac v. Wells Fargo Bank, N.A., 810 F.3d 429, 435 (6th Cir. 2016). For that reason, a preliminary injunction usually ends when the case does: "a final order on the merits extinguishes a preliminary injunction." Id. The state Circuit Court's injunction accordingly restrained the City from removing or replacing Guess only temporarily—"until [it] enter[s] a final decision on the Appeal." DN 1-2 at 60.
Exercising equitable authority after the conclusion of a case requires a permanent injunction, which implicates additional factors relating to the ongoing nature of the injury and the lack of an adequate remedy at law. See, e.g., United States v. Szoka, 260 F.3d 516, 523 (6th Cir. 2001). Under a consent decree or stipulated permanent injunction, a court continues to supervise the parties even after their judicial dispute has ended. See Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir. 1983) (consent decree); G.G. Marck & Assocs., Inc. v. Peng, 309 F. App'x 928, 934 (6th Cir. 2009) (stipulated injunction). Such ongoing supervision requires the Court, after notice to interested parties, to affirmatively accept the agreement as reasonable. See Vukovich, 720 F.2d at 921-23. This approval is essential both because the decree is an "agreement subject to continued judicial policing" and because it puts "the power and prestige of the court behind the compromise struck by the parties." Pedreira v. Sunrise Children's Servs., Inc., 802 F.3d 865, 871 (6th Cir. 2015) (quoting Vukovich, 720 F.2d at 920).
Here, the parties have not attempted to justify permanent injunctive relief: they haven't moved to invoke the Court's equitable authority or provided any support for ongoing judicial supervision of the parties' performance. Yet their proposed resolution would undoubtedly "subject" this dispute "to continued judicial policing" and put "the power and prestige of the court" behind its resolution. Id. (quoting Vukovich, 720 F.2d at 920). Put more concretely, the requested injunction would subject elected policymakers' authority to police their own membership and affairs, under state law, to the supervision of a federal judge. See Salazar by Salazar v. D.C., 896 F.3d 489, 497 (D.C. Cir. 2018) (citing Horne v. Flores, 557 U.S. 433, 449, 129 S.Ct. 2579, 174 L.Ed.2d 406 (2009)). To be sure, the "standard for obtaining a consent decree is somewhat less demanding" than that required for "a running structural injunction." Id. at 497-98. But even though "[c]onsent decrees entered in federal court must be directed to protecting federal interests," the parties haven't established the relationship between the proposed injunction and the "law upon which the complaint was based." Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004). And this particular injunction would involve a federal court not only in complex issues of state law—but in questions that run to the heart of local self-governance. (More on that below.) While a version of the requested injunction is already in place, recall that this court isn't even the one that issued the temporary injunction; that order issued for different reasons in a different court system. Cf. Kallstrom v. City of Columbus, 136 F.3d 1055, 1067 (6th Cir. 1998) (distinguishing preliminary and permanent injunctions); Salazar by Salazar, 896 F.3d at 497-98 (noting that baseline concerns with federal equitable relief compound when it requires judicial superintendence of government officials on an ongoing basis).
Without an appropriate motion establishing a continuing irreparable injury and the lack of an adequate remedy at law, this Court lacks grounds to instruct a state-created municipal body not to exercise its state-law authority to control its membership. Cf. Kallstrom, 136 F.3d at 1068 ("Injunctive relief is a discretionary remedy which courts traditionally abstain from providing unless the controversy is ripe for judicial resolution."). And as discussed below, the legal standard against which any injunction would be measured remains unclear. Conversion of the temporary state injunction into a permanent federal one is therefore inappropriate at this point. Given the role of that injunction in the agreed order of dismissal, and the parties' indication that its permanence and supervision are essential to their settlement, the Court denies the proposed agreed order of dismissal. See FED. R. CIV. P. 41(a)(2).
**
So the dispute remains alive, at least for the time being. But is it even in the right forum? The § 1983 claims supply subject-matter jurisdiction because the controversy arises, at least in part, under federal law. See 28 U.S.C. § 1331. That is typically all that removal requires under § 1441(a): the existence of jurisdiction assigns federal courts a "virtually unflagging obligation" to adjudicate a live dispute. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). Particularly in the borderlands of our federal system, however, exercising jurisdiction may sometimes be inappropriate in "exceptional circumstances where denying a federal forum would clearly serve an important countervailing interest." Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) (quotations omitted). Courts as well as parties may raise these concerns. See Slyman v. City of Willoughby, 134 F.3d 372 (Table), No. 96-4028, 1998 WL 24990 at *2 n.1 (6th Cir. 1998) (quoting Bellotti v. Baird, 428 U.S. 132 143 n.10, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976)). Prudence is all the more justified if the relief requested is equitable in nature: congressional conferral of jurisdiction "does not eliminate" or "call into questio[n] the federal courts' discretion in determining whether to grant certain types of relief—a discretion that was part of the common-law background against which the statutes conferring jurisdiction were enacted." New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 359, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989).
So in some circumstances, the Supreme Court has taught, federal courts properly abstain from exercising jurisdiction Congress has conferred. "[T]he various types of abstention are not rigid pigeonholes into which federal courts must try to fit cases." Id. (quoting Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11, n. 9, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987)). Despite different labels—Burford, Colorado River, Thibodaux, Pullman, Younger—familiar to fed-courts mavens and few others, "the animating force of the Court's abstention cases is that they all implicate (in one way or another and to different degrees) underlying principles of equity, comity, and federalism foundational to our federal constitutional structure." Driftless Area Land Conservancy v. Valcq, 16 F.4th 508, 525-26 (7th Cir. 2021) (quotation omitted).
This case, too, implicates foundational questions of equity, comity, and federalism. Guess's appeal seeks review of the merits of his removal, arguing that the vote was "arbitrary & capricious" and outside the statutory grounds for removal. State Complaint ¶¶ 45(b), 46. But how is a court to assess the Commission's decision? The parties appear reluctant to hazard a guess regarding the standard for reviewing a removal under KRS § 83A.040(9). Perhaps that's because the statutory text offers little to go on: it merely authorizes removal in "case[s] of misconduct, incapacity, or willful neglect in the performance of the duties of . . . office." Id. Despite establishing "the right to appeal," the statute remains silent on the grounds for appeal or deference (if any) due the Commission's decision. Id.
As for precedential support, Guess's reliance on the familiar if amorphous arbitrary-and-capricious standard is not tied to any recognizable legal authority. State Complaint ¶¶ 45(b), 46; DN 1-2 at 28; see also DN 1-2 at 230-31. He analogizes to caselaw regarding appellate review of administrative agency findings of fact, but never explains why that should apply to the actions of legislative bodies policing their members. Nor does Guess identify any other caselaw addressing whether and when a removal might fail under the statute. See State Complaint ¶¶ 42-46; State Injunction Motion (DN 1-2) at 5-7. And the Court's own research has turned up no Kentucky decision that discusses the standard of review of a removal vote under § 83A.040(9). Nor is it clear that the General Assembly ever contemplated that a removed officer could avoid the specified state-court forum ("the Circuit Court of the county") and secure federal-court review by attaching a § 1983 claim. At least arguably this scheme impliedly forecloses review in other forums. Cf. Block v. Community Nutrition Institute, 467 U.S. 340, 349, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984) (considering whether "the presumption favoring judicial review of administrative action may be overcome by inferences of intent drawn from the statutory scheme as a whole").
So the nature of this Court's review is entirely uncertain with respect to Kentucky law. This is true with respect to the meaning of the statutory text as well as any limitation on municipal removal authority imposed by state separation-of-powers concerns. See generally Schell v. Young, 640 S.W.3d 24, 36 (Ky. Ct. App. 2021) (fixed terms of election or appointment presumptively cabin officer removal); Riffe v. Finsby, 103 Ky. 631, 45 S.W. 1046, 1046 (1898) ("The general rule is that a person appointed or elected to an office, the term of which is prescribed, cannot be removed therefrom, by even the appointing power, except upon trial of charges preferred, and of which he has notice."). To say nothing of the effect of state or federal free-speech considerations—the issue that attracted the most attention from the McCracken Circuit Court in its temporary-injunction ruling. DN 1-2 at 56-59. As thoughtful scholars have noted, in situations such as these abstention lies within "the traditional power of courts of equity to avoid the waste of a tentative decision where the controlling state law is so undefined that a federal court attempting to apply such law would be groping utterly in the dark." Bradford R. Clark, Ascertaining the Laws of the Several States: Positivism and Judicial Federalism After Erie, 145 U. PA. L. REV. 1459, 1529 (1997) (quotation marks omitted). This Court's Erie-guess regarding the state-law standards for removal review would necessarily be "a forecast rather than a determination." Id. (quoting, e.g., Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 499, 61 S.Ct. 643, 85 L.Ed. 971 (1941)).
In these respects the dispute is reminiscent of Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 28, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959). There the U.S. Supreme Court held that a district court should abstain from adjudicating unsettled state-law issues that implicate the limits of state eminent-domain authority. Id. at 29, 79 S.Ct. 1070. That case raised critical questions regarding the state's "sovereign prerogative." Id. at 28, 79 S.Ct. 1070. Given the unsettled nature of the state-law issue and its importance to the "apportionment of governmental powers between City and State," the court held that the district court should stay its hand "pending the submission of the state law question to state determination." Id.
A parallel Supreme Court decision illustrated the importance of state-law uncertainty to this strain of abstention. On the same day it handed down Thibodaux, the Court clarified that abstention is not appropriate in an eminent-domain case if "the state law . . . is clear and certain." County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 196, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959). More recently, the Sixth Circuit has deemed Thibodaux abstention "appropriate" to allow for "interpretation by the state court of a disputed, and never-before addressed, statute," while rejecting it for questions of federal law. Superior Beverage Co. v. Schieffelin & Co., 448 F.3d 910, 915 (6th Cir. 2006). Abstention, the court of appeals clarified, is "particularly appropriate" if the "area of law 'is intimately involved in the sovereign prerogative.' " Id. (quoting Thibodaux, 360 U.S. at 28, 79 S.Ct. 1070).
Guess's claim certainly implicates the Commonwealth's sovereign prerogative. It seeks review of a municipal body's decision, under state law, over its own composition: a determination by some elected officials that another elected official is unfit to continue serving in local government, despite his election by the City's voters. Just as Guess is exercising his state-law right to an appeal, the other Commissioners exercised state-law authority granted (albeit without much elaboration) by still other elected representatives—the state legislature—in the same statute. Thibodaux, too, emphasized concerns of divided authority between sovereign states and their municipal organs, as well as the analogous division between federal and state courts. 360 U.S. at 28-29, 79 S.Ct. 1070. The composition of elected state government—the selection and qualifications of state officers—obviously goes to the heart of democracy and sovereignty in a way that few other issues do: "Through the structure of its government, and the character of those who exercise government authority, a State defines itself as a sovereign." Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). The selection of representatives is "a decision of the most fundamental sort for a sovereign entity"—and their removal is arguably even more fundamental. Id.
So judicial review of the Commission's decision undoubtedly touches the "heart of representative government." Id. (quotation omitted). While these sovereign interests would not necessarily preclude a decision applying federal law, see, e.g., Superior Beverage, 448 F.3d at 915, or a "clear and certain" state law, Frank Mashuda Co., 360 U.S. at 196, 79 S.Ct. 1060, they clearly raise comity concerns when the instructions of state law remain unclear. Does § 1983 really invite federal courts to apply such fundamental and undeveloped state standards under a state-appellate regime that specifically envisions review in the state circuit court? This uncertainty regarding the substantive rule of decision, coupled with the certainty that the answer will prove important to questions of state governance, show that the concerns raised by Guess's suit are best addressed by a state rather than federal court in the first instance. So abstention is appropriate. See Superior Beverage, 448 F.3d at 915.
The principles governing Thibodaux abstention often bleed into the criteria for the certification of legal questions to state courts. See, e.g., RICHARD H. FALLON, JR., ET AL., HART AND WECHSLER'S THE FEDERAL COURTS & THE FEDERAL SYSTEM 1126 (7th ed. 2015). Certification is plainly unwarranted here given the inchoate nature of the claim, the apparent desire of the parties to settle, and the need for factual development before any state-law legal question is sharpened for appellate review.
***
A final wrinkle remains: Guess brings both equitable claims under KRS § 83A.040 and damages claims under 42 U.S.C. § 1983. Should both return to state court, given Guess's right to a federal forum for federal claims under 28 U.S.C. § 1331? Free-speech suits for damages against state actors are hardly uncommon in federal court (even if, as an original matter, they too may have touched the tender spot of state sovereign functions). See, e.g., Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (discharge of state assistant district attorney); Williams v. Kentucky, 24 F.3d 1526 (6th Cir. 1994) (demotion of state employee).
The "power to dismiss or remand a case under the abstention doctrines," the Supreme Court has held, is part of "the discretion federal courts have traditionally exercised in deciding whether to provide equitable or discretionary relief." Quackenbush, 517 U.S. at 730, 116 S.Ct. 1712; see also New Orleans Pub. Serv. 491 U.S. at 359, 109 S.Ct. 2506. Indeed, Justice Frankfurter in Thibodaux itself emphasized the need for "equity suits [to] avoi[d] the hazards of serious disruption by federal courts of state government or needless friction between state and federal authorities." 360 U.S. at 28, 79 S.Ct. 1070 (as opposed to the "tempt[ation]" of "some otiose or timid judge to shuffle off responsibility"). This interest in reconciling equity and law has led the Supreme Court to "permi[t] federal courts applying abstention principles in damages actions to enter a stay," but not to "dismiss the action altogether." Quackenbush, 517 U.S. at 730, 116 S.Ct. 1712. This serves the further goal of avoiding unnecessary adjudication of difficult constitutional questions, since resolution of a municipal removal decision could conceivably moot or narrow the remaining First Amendment claim. See Pullman, 312 U.S. at 501, 61 S.Ct. 643.
So the Court may remand Guess's state-law equitable claim, but not his federal-law damages claims. "[A] federal court's discretion to abstain . . . does not extend so far as to permit a court to dismiss or remand, as opposed to stay, an action at law." Superior Beverage, 448 F.3d at 913. Put another way, no concerns regarding the limits of state sovereignty and federal equity overcome Guess's right to file a federal-law claim against the municipal defendants in federal court. Id. The Court therefore severs the state and federal claims so each may be addressed in the appropriate forum. See, e.g., Slyman, 1998 WL 24990, at *2 (staying federal claims pending resolution of state claims following abstention); Columbus Life Ins. Co. v. Wells Fargo Bank, N.A., 505 F. Supp. 3d 609, 619-20 (E.D.N.C. 2020) (similar). As to the appeal of the removal vote under KRS § 83A.040, the Court remands it to state court for any further consideration the parties or the court deem necessary and appropriate. And as to the federal damages claim, the Court stays its adjudication in this forum pending the outcome of the state-court proceedings. See, e.g., Tyler v. Collins, 709 F.2d 1106, 1108-09 (6th Cir. 1983).
An agreed resolution of the dispute in state court, of course, could resolve not only the equitable but also the damages claim—leaving nothing for this Court to do besides dismissing Guess's remaining claim. "A case can return to federal court, if necessary, after Thibodaux abstention . . . ." Slyman, 1998 WL 24990, at *3.
ORDER
The Court denies the proposed agreed order of dismissal (DN 6), stays the case with respect to Guess's First Amendment claim, and remands the appeal under KRS § 83A.040 to the McCracken Circuit Court.