February 27, 2018 Articles

Competing State and Federal Proceedings

A dispute over Tennessee’s abortion law escalates to the Sixth Circuit.

By Cassandra Robertson – February 27, 2018

In 2014, voters in Tennessee were asked to vote on a proposed amendment to the state constitution providing that “[n]othing in this Constitution secures or protects a right to abortion or requires the funding of an abortion.” After a grueling campaign, the measure was reported to have passed with 52 percent of the vote.

That result was quickly challenged by group of eight Tennessee voters who had opposed the measure. The voters filed suit under 42 U.S.C. § 1983 against state elections officials in federal court, challenging the way the votes were counted. The Tennessee constitution requires that an amendment be approved “by a majority of all the citizens of the state voting for governor.” However, the state counted all ballots showing a vote for the amendment—regardless of whether the voter had also voted in the governor’s race. Discounting the ballots of those who failed to vote in the governor’s race could potentially change the outcome, as a significant number of ballots left the governor’s race blank. Proponents of the amendment had launched “a concerted effort to ask voters to vote only in the amendment race to make its passage more likely.” Specifically, campaigners in favor of the amendment “surmised that the greater the number of votes cast for governor, the greater would be the ultimate number of votes for [the amendment] needed for its approval and ratification. Hence, supporters encouraged voters to vote for the amendment and abstain from voting for governor, and opponents urged voters to vote against Amendment 1 and cast a vote for a candidate for governor.” The plaintiff voters alleged that upholding this strategy would impermissibly dilute their votes and violate their due-process rights.

Thus, the case turned on a disputed question of state constitutional interpretation: Did the Tennessee constitution allow amendment votes to count even if the voter had not also voted in the governor’s race? The state official defendants initially asked the federal district court to either abstain from deciding the state constitutional question or to certify it to the Tennessee Supreme Court.

However, when the federal court denied the motion to dismiss and refused to certify the case, the defendants then filed a competing declaratory-judgment action in a Tennessee state court. The officials named the eight federal plaintiffs as defendants in the action. The state officials sought a declaration from the Tennessee court that the state’s method of vote counting comported with state constitutional requirements. On April 21, 2016, the Tennessee court ruled in the state officials’ favor, issuing a declaration that the state’s vote-counting method comported with the Tennessee constitution. The state-court defendants—the voter plaintiffs in the federal case—did not appeal the state court’s ruling. The next day, on April 22, 2016, the federal court reached the opposite conclusion and entered judgment in favor of the voters, issuing an injunction requiring state officials to recount the votes.

The state officials appealed the federal case to the Sixth Circuit. The federal court thus had to decide what effect to give the state-court ruling. Under the Erie doctrine, the federal court would not be bound by a state trial-court ruling. But would it be preclusive in the case of a competing race to judgment? A group of law professor amici, led by Professor Suzanna Sherry of Vanderbilt Law School, argued that the state-court action “undermines the role of the federal courts as guarantors of constitutional rights.” Nevertheless, on January 9, 2018, a Sixth Circuit panel ruled in George v. Hargettthat it was bound to give preclusive effect to the state-court ruling. The panel referred to the state officials’ decision to file a declaratory-judgment action against the federal plaintiffs as an “unorthodox” but “efficient and fruitful substitute” for certification or abstention.

With the state constitutional issue decided, the federal court then concluded that the procedure did not violate the plaintiff voters’ due-process or equal-protection rights. The Sixth Circuit thus reversed the district court’s judgment and rendered judgment in favor of the state officials.

The voters have now asked the Sixth Circuit to rehear the case en banc. The plaintiffs’ motion for rehearing argues that the panel’s interpretation of preclusion law “encourages state actors to answer federal complaints with state-court lawsuits.” They argue that

state-actor defendants in a 42 U.S.C. § 1983 action can file a retaliatory suit against individual civil rights plaintiffs seeking a state-court declaratory judgment that the state actors acted lawfully in order to stymie a pending federal civil rights lawsuit, circumvent the civil rights plaintiffs’ choice of forum, bypass a federal district court’s ruling against the state-actor defendants, short-circuit this Court’s own appellate review, and intimidate civil rights plaintiffs by forcing them to personally defend a lawsuit against them in a new forum.

The plaintiffs cite to federal authority suggesting that actions taken to retaliate against the exercise of the plaintiff’s right to sue infringe upon constitutional rights of access to the courts. Thus, they argue, the state-court judgment was constitutionally infirm and should not be accorded full faith and credit.

It remains to be seen whether the Sixth Circuit will agree to hear the case en banc. If it does not, then the case raises the troubling possibility that state defendants in federal court will follow the pattern set out in Hargett by filing competing lawsuits in state court. The case also demonstrates the importance of pursuing appellate remedies. The voters sought to rely entirely on the federal-court action and failed to appeal the state-court judgment. If the state-court judgment is ultimately held to be constitutionally valid as the Sixth Circuit panel concluded, then the decision not to appeal may have had serious consequences.


Cassandra Robertson is a professor of law at Case Western Reserve University School of Law.


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