factual or legal basis for obstructing elections in accordance with the newly-enacted plan. To be sure, defendant Cuomo (and vicariously defendant Lundine), by signing the reapportionment legislation into law, fulfilled an indispensable role in the plan's enactment and are defendants in the F.A.I.R. action to enjoin effectuation of the plan. Given the non-consenting defendants' failure to assume a legal position that is hostile to plaintiffs' position, the court is hard-pressed to conceive of how a declaration against them would provide relief in any manner to these plaintiffs.
Plaintiffs believe that non-consenting defendants Greene and Brennan are more than "nominal" parties to this litigation: that belief is based upon the fact that Greene and Brennan cast dissenting votes to the plan legislation and have otherwise been outspoken in their opposition to the plan. Indeed, Greene has apparently threatened legal action to bar implementation of the plan. According to plaintiffs, Greene's and Brennan's well-known opposition to the plan, including their dissenting votes in the Assembly, creates an adversarial relationship that renders Green and Brennan more than "nominal" to this suit.
Plaintiffs' presumption runs contrary to the requirement that a suit must present an actual case or controversy in order to be justiciable in federal court. U.S. Const. art. III; Babbitt v. United Farm Wrkrs. Nat'l Union, 442 U.S. 289, 298, 60 L. Ed. 2d 895, 99 S. Ct. 2301 (1979). If a party is not involved in the actual case or controversy, then surely it is a nominal party, see Saxe, Bacon & Bolan, P.C., 521 F. Supp. at 1048, because the constitution's cases and controversies limitation "forecloses the conversion of courts of the United States into judicial versions of college debating forums." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 473, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982). A mere dispute of policy does not transform a nominal party into one involved in a legitimate case or controversy. Their political disagreement notwithstanding, Greene and Brennan have taken no formal steps to impede the election according to the plan. Furthermore, plaintiffs' contention that Greene might assert some legal position against the plan in the future is unavailing; the court cannot speculate as to what might happen under hypothetical circumstances. Since Greene and Brennan have manifested no more than their disagreement over the newly-enacted plan, a declaration against them simply would not affect plaintiff's rights or otherwise further their interests.
The nominal role of the non-consenting defendants in this suit becomes especially clear when contrasted to the role played by the removing defendants, i.e. F.A.I.R. Unlike the non-consenting defendants, F.A.I.R. has formally asserted a legal position adverse to these plaintiffs and, through the companion F.A.I.R. suit, has taken affirmative steps to block execution of the plan. A declaration of validity against F.A.I.R. would settle the active dispute between these two parties by collateraly estopping F.A.I.R.'s efforts to hamper the election process. A declaration against the non-consenting defendants, by comparison, would carry no comparable legal force.
The net effect of the foregoing analysis is that a declaration against the non-consenting defendants would not affect plaintiffs' rights or otherwise promote their interests. Thus, no cause of action or claim for relief is stated against them. Cf., e.g., Lewis v. Continental Bank Corp., 494 U.S. 472, 110 S. Ct. 1249, 1253, 108 L. Ed. 2d 400 (1990) ("Article III denies federal courts the power 'to decide questions that cannot affect the rights of litigants in the case before them'") (quoting North Carolina v. Rice, 404 U.S. 244, 246, 30 L. Ed. 2d 413, 92 S. Ct. 402 (1971)). By definition, therefore, the non-consenting parties are nominal to this lawsuit. E.g. Saxe, Bacon & Bolan, 521 F. Supp. at 1048.
In sum, the non-consenting defendants' failure to manifest any intent to obstruct the upcoming elections means that a declaration of the plan's validity against them would be inconsequential; a judgment against the non-consenting defendants would not afford plaintiffs with any cognizable relief. The non-consenting defendants are therefore nominal parties in this suit, meaning that their consent to removal was not necessary. Accordingly, plaintiffs' motion to remand based upon this procedural argument is rejected.
Plaintiffs' second argument in support of remand can be dismissed in short order. Plaintiffs contend that the statute under which F.A.I.R. purported to remove this suit, 28 U.S.C. § 1443, is not applicable in cases such as the present. Plaintiffs are ignoring one obvious fact: F.A.I.R. also asserts 28 U.S.C. §§ 1441 and 1446 as bases for removal, which provide a proper avenue for removal independent of § 1443. Since removal was proper on these alternative grounds anyway, the court need not resolve the question of whether removal pursuant to § 1443 would also have been appropriate in this case.
The court can reject plaintiffs' third argument in similar fashion. Plaintiffs contend that removal was improper because F.A.I.R. failed to append a short and plain statement of the grounds for removal to their removal petition, as required by 28 U.S.C. § 1446(a).
After plaintiffs filed their motion to remand, F.A.I.R. cured that defect by supplying an amended petition to remove which satisfies all of the § 1446 requirements. Under circumstances nearly identical to the present, the Seventh Circuit instructed that "[a] removal petition may be amended freely within the thirty day period" following removal so as to allow the removing party to justify the failure of all defendants to join in the removal. Northern Ill. Gas Co., 676 F.2d at 273. Although not binding on this court, the Seventh Circuit's reasoning in Northern Ill. Gas Co. remains persuasive and uncontroverted.
F.A.I.R.'s amended petition asserts, inter alia, that the non-contesting defendants are nominal to the case and therefore need not consent to the removal, and that removal is warranted due to the "important federal questions at issue" and to facilitate consolidation of this case with F.A.I.R. By advancing these justifications, F.A.I.R. discharged all of the requirements set forth in § 1446 and as interpreted in Northern Ill. Gas Co. Therefore, plaintiffs' motion to remand on this basis is without merit.
Although not stated as a specific basis for relief, a theme that resonates throughout plaintiffs' papers is the notion that the state supreme court is a more appropriate forum for adjudication over the issues presented in this case. Plaintiffs' argument implicitly invokes the provision set forth in 28 U.S.C. § 1441(c), which furnishes this court with the discretion to remand "all matters in which State law predominates." Plaintiffs argue that a remand is appropriate here because their suit raises issues that are of independent concern to New York State, such that resolution of these matters by a state tribunal is necessary to the furtherance of state sovereignty.
In so arguing, plaintiffs invoke federalism principles which the court cannot ignore. Federal courts must occasionally abstain from adjudication of state claims in favor of allowing the state's tribunals an opportunity to develop a coherent state policy with respect to issues of local concern. E.g. De Cisneros v. Younger, 871 F.2d 305, 307 (2d Cir. 1989) (Cardamone, J.) (citing Burford v. Sun Oil Co., 319 U.S. 315, 317-34, 87 L. Ed. 1424, 63 S. Ct. 1098 (1943)). In the particular context of the removal statute, the court is mindful of the Second Circuit's admonition that
in light of the congressional intent to restrict federal court jurisdiction, as well as the importance of preserving the independence of state governments, federal courts construe the removal statute narrowly, resolving any doubts against removability.
Somlyo v. J. Lu-Rob Enter., Inc., 932 F.2d 1043, 1045-46 (2d Cir. 1991) (citing, e.g., Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108, 85 L. Ed. 1214, 61 S. Ct. 868 (1941)).
On the other hand, the court must be equally cognizant of defendants' countervailing statutory right to remove to federal court cases based upon federal rights. See §§ 1441, 1443. The rationale behind removing a case to federal court may be especially acute in cases such as the present, in which a local court may face parochial and political pressure from its own citizens. By enacting the removal statutes, Congress ensured that a defendant's right to vindicate federal civil rights in a federal forum remains secure. See Regis Assocs. v. Rank Hotels (Mgmt.) Ltd., 894 F.2d 193, 195 (6th Cir. 1990); Worthy v. Schering Corp., 607 F. Supp. 653, 657 (E.D.N.Y. 1985).
Any tension that might ordinarily exist between these seemingly conflicting rights is absent from the present case, however, because review of the record reveals that this suit is conspicuously devoid of a legitimate -- let alone predominant -- state question. At most, plaintiffs' claim under the state constitution seeks a declaration concerning a matter that is not truly in controversy. Specifically, plaintiffs merely plead that the newly-drawn Assembly districts comply with the New York State Constitution and that defendants have expressed their disagreement with this proposition. Then, with little substantiation, plaintiffs assert that "by reason of the foregoing, a controversy exists requiring a judicial declaration." Complaint P23. Plaintiffs allege that a judicial declaration is required to avoid upsetting the orderly scheduled Assembly elections set for Fall, 1992.
The court is at a complete loss as to why a declaration concerning the validity of the state constitutional issue would facilitate an orderly election process. Neither in this action nor in any other action of which we are aware have these defendants asserted that the New York State Constitution affords them with a basis for affirmative relief. That is to say, in no instance do these defendants place reliance upon constitutional state law to "upset the orderly scheduled elections set for this Fall." At most, defendants have merely acknowledged in their answer their disagreement as to the validity of the Assembly reapportionment plans under the state constitution. The central focus of defendants' own litigation efforts in other lawsuits has been on the federal constitutionality of the Assembly districts. The parties' disagreement on the state constitutional question hardly elevates the state law claim to a level that can be considered "predominant."
The posture of this litigation is such that resolution of plaintiffs' state law claim for a declaratory judgment would not affect the rights of any of the parties to this suit. We find that plaintiffs' cause of action arising under state law not only fails to raise a predominant state question to justify a remand, but also fails to raise a case or controversy sufficient to confer upon this court jurisdiction to adjudicate that claim. See, e.g., Babbitt, 442 U.S. at 297-98; Penguin Books USA Inc. v. Walsh, 929 F.2d 69, 72 (2d Cir. 1991) (citing Rice, 404 U.S. at 246). Accordingly, the court denies plaintiffs' motion to remand this case to state supreme court and, as we are obligated to do, sua sponte dismisses plaintiffs' claim arising under state law. See, e.g., Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 89 L. Ed. 2d 501, 106 S. Ct. 1326 (1986).
F.A.I.R. asks the court to consolidate the present action with F.A.I.R., which is scheduled for a trial on the merits on June 24, 1992. Consolidation seems appropriate because, with the exception of the state constitutional issue presented herein, the two cases raise identical issues and surely would entail identical proof. Plaintiffs' sole basis for opposing consolidation is their belief that this suit should not even be tried in this court but rather should be adjudicated in a state forum. For the reasons stated above, however, the court rejects plaintiffs' motion to remand. Therefore, despite plaintiffs' desire to the contrary, the present case will be adjudicated in this court. Since the court has been given no legitimate argument against consolidation and consolidation presents the most efficient tack on which to proceed, the motion to consolidate this case with F.A.I.R. is granted.
Plaintiffs' motion to remand this case to state supreme court is denied with prejudice. Plaintiffs' cause of action arising under New York State law is dismissed with prejudice. This case is hereby consolidated with Fund for Accurate and Informed Representation, Inc. v. Weprin, No. 92-CV-283, and shall therefore proceed in accordance with same scheduling order.
IT IS SO ORDERED.
DATED: June 15, 1992, Syracuse, New York
Richard J. Cardamone, Circuit Judge
United States Court of Appeals
Neal P. McCurn, Chief Judge
United States District Court
Howard G. Munson, Senior Judge
United States District Court