Isn't it funny how Tina Benkiser says a "liberal" activist judge appointed by a Democrat can't rule impartially on the case, but believes a Republican federal judge would be more fair.

I am still getting conflicting info on whether Sparks will be ruling on the removal motion or on the merits of the TRO. I have two contradictory quotes from RPT lawyers.

A quick clarification about removal. A defendant who wants to remove a case files a notice of removal with the Federal Court in the district where the state court case is pending. The notice has to state the grounds for federal jurisdiction. It is automatic and the case is now before the federal court. What happens next is that the plaintiff can either acquiese to the removal or file whats called a motion for remand (in other words a motion to send it back because the removal was improper). The federal judge will rule on that motion. That what Judge Sparks will rule on.

This quote is quite laughable:

"If Democrat plaintiff trial lawyers want to raise federal issues under the U.S. Constitution, they cannot then seek to have them decided in the liberal state court of their choice," said GOP Chairwoman Tina Benkiser.

Putting aside the remarkable ability to so many gratuitous republican buzzwords in one sentence, its also simply wrong. The plaintiffs were perfectly correct in filing the lawsuit in state court, they made their choice of venue and the case could have proceeded. The defendnats just simply chose to play the federal trump card and move it to where they wanted to. Both parties are forum shopping, it may be though that the defendants have trump card in this case.

I am curious about the claim for federal question, it seems to me the question of Delays eligibility is governed by the Texas Election code. I guess the constitutional question could be whether there is a contitutional dimension of the definition of term inhabitant (which is a constitutional requirement) as opposed to one determined solely state by state.

As Antinome points out, removal to federal court is automatic with the filing of a removal petition. TRP hasn't won anything here. The TDP now has 30 days to petition for remand to state court, if it so desires.

The relevant statute for removing a case to federal court is 28 U.S.C. §1441. The issue in a removal hearing will be whether the TDP's petition contains a civil action "founded on a claim or right arising under the Constitution, treaties or laws of the United States." Simply mentioning the Constitution in your petition is not the same as asserting a claim or right arising under the Constitution. Whether the TDP's claims arise under the Constitution, I won't guess, but I think the argument on both sides will be quite interesting.

Although I don't agree with Greg that the question of remand is cut-and-dried, I do agree that TDP wants to stall the selection of a successor candidate and that TRP is trying to speed up the process by going to federal court. I'm not sure, however, that this move definitely helped the TRP. Getting into a removal/remand fight could potentially add a few weeks to the process.

To respond to Mark: Judge Sparks will be hearing both the remand petition (if the TDP files one) and the request for a preliminary injunction (unless the case is remanded first). There has already been a hearing on the request for a temporary restraining order; it was granted by Judge Byrne. A bit of background on how this process works: a TRO, which can be obtained without input from the defendant, only lasts for a short period of time, allowing the court to decide whether to impose a preliminary injunction. A preliminary injunction preserves the status quo pending the outcome of the main case. The main case can include (as it does here) a request for a permanent injunction, which then prevents the defendant from undertaking the enjoined action on a permanent basis.

Removal to federal court does not change the TRO; it remains in effect. Following the removal to federal court, the TRO can be maintained for 10 days, with the possibility of a 10-day extension for good cause. Fed. R. Civ. P. 65(b); Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 439-40 (1974). The hearing on the preliminary injunction should therefore take place very soon.

The TRP's best bet at that hearing is to show there is no need for a preliminary injunction, that the TDP won't be harmed by allowing them to pick a successor to DeLay in the interim even if the TDP's suit is ultimately successful. That would allow the TRP to go ahead with the successor selection and start campaigning and fundraising. Whether Judge Sparks is any more or less likely than Judge Byrne to deny the request for a preliminary injunction, I can't say. But I think the TRP's got real problems if he doesn't.

Wow. Amazing what you get when you pool a few good blogging minds into one comment thread. Thanks for the help guys!

Kenneth,

I hope you come back to visit Kuff's comments, because I have a few questions that your apparent legal background can help answer.

1. If the Dems have 30 days to petition remand to state court, why wouldn't they use every one of those precious days? After all, the Dems' strategy is to stall. They don't really think an answer to their Constitutional question, as interesting as it is, will be vital to the on-going success of the republic. From the facts I learned in your comment, I'd expect the Dems to take every one of the 30 days they have to request a remand. Are there any reasons they wouldn't?

2. The TRO is important to the Dems. If the choice were between a couple of weeks of stalling vs. the TRO, I'd expect the Dems allow the process to go forward as long as they had a chance to keep the TRO in place. In other words, if it looked like the federal courts were going to let the TRO expire, the Dems would immediately try to get the case back into state court. (I still believe the Dems will ultimately fail at remand.) This is the only event that would drive the Dems into trying to remand back to state court before the 30 days.

I disagree with your assessment that going to federal court adds time. Yes, there will certainly be a removal/remand fight that will take up time. But it will take up less time than letting the state case wander through the appeals process only to have the Democrats appeal in federal court if they receive an unfavorable outcome on their Constitutional claim that the states may not judge the qualifications of Congressmen. The removal/remand fight will take less time than allowing the state case to go through the process. Admit it, this case will end up in federal court regardless of who wins the removal/remand fight. That's why it belongs in federal court now. I don't blame the Dems for trying to stall in state court. But the Republicans have the law on their side with respect to removing it to federal court.

In response to Greg's excellent questions and points:

1. I agree that it's in the Dems' best interest to stall, and that this is their primary purpose in filing the suit. Every day there is no appointed DeLay successor is a day that successor is not campaigning and fundraising. Regarding remand, the Dems might take less than 30 days to file a remand petition if they thought they could get a remand before the hearing on the preliminary injunction. This is unlikely, but perhaps possible. Otherwise, I'd expect they'll take the entire 30 days.

2. I think I didn't clarify this well enough in my earlier comments. The TRO will expire regardless of what the Dems do. A TRO is only intended to maintain the status quo until a hearing can be held on the preliminary injunction. You can get one ex parte; that is, without input from the defendant. Because the other side has no chance to respond, it's fairly easy to get a TRO, and they are routinely awarded in situations where the petition is not frivolous on its face and the plaintiff has jumped through the right procedural hoops. To prevent abuse of this process, TROs have a short lifespan (14 days in state court, 10 in federal). The court then hears from both parties about whether to impose a preliminary injunction – an injunction that will hold until the case is tried. Judge Byrne would have heard the request for a preliminary injunction; now Judge Sparks will hear it unless he remands the case to state court before then.

In this case, I agree that the preliminary injunction is the whole ball of wax (or at least 7/8 of the ball). The Dems absolutely want to get a preliminary injunction; that would turn a couple of weeks of not choosing a DeLay successor into at least a couple of months.

3. Cases in state court aren't appealed to federal court, except that a state case involving questions of federal law can be appealed from the state's highest court to the U.S. Supreme Court. (There are a couple other limited exceptions that I don't think apply here.) If the state court case were appealed from the Travis County District Court, the case would go to the Third Court of Appeals in Austin, then to the Texas Supreme Court, then to the U.S. Supreme Court. The appeal to the Third Court is mandatory; the Texas Supreme Court and the U.S. Supreme Court have discretion whether they would hear an appeal. On the federal side, the case would go from the U.S. District Court for the Western District of Texas to the Fifth Circuit Court of Appeals and then to the U.S. Supreme Court, with the Supreme Court again having discretion whether to hear the case.

State courts routinely interpret questions of federal law and vice versa, so the mere fact that the case might involve state and federal law does not determine whether the case can be removed to federal court. Whether the case can be removed to federal court turns on whether the Dems' complaint makes a claim "arising under" the U.S. Constitution. It's not immediately obvious to me from reading the complaint that it does. The complaint clearly makes claims based on the Texas Election Code. It also references the standards in the U.S. Constitution for selecting representatives. I'm not sure, however, that saying the House of Representatives is the sole judge of its membership is the same as making a claim based on the Constitution. An analogous case is Willy v. Coastal Corp., 855 F.2d 1160 (5th Cir. 1988), in which the plaintiff made a state-law claim that he was fired for refusing to break various state and federal laws. The Fifth Circuit said that even though the plaintiff's complaint implicated federal law, it was ultimately a state-law claim and therefore not removable to federal court. Id. at 1171. That said, I think the GOP probably has the better argument here, and the case is likely to remain in federal court. I just don't think it's cut-and-dried.

4. I think this is nothing more than a case of forum shopping. The Dems got to select their forum by filing suit in state court in Austin. The GOP thought it was better to be federal court in the Western District of Texas. There's nothing wrong with either decision; both parties were entitled to make the moves they have.

The GOP gains several advantages from removing the case to federal court. First, removal got them a randomly assigned federal judge rather than the randomly assigned Judge Byrne, an elected Democrat. Second, human nature being what it is, the judge who grants a TRO might be slightly more likely to also grant the related preliminary injunction. Third, if the case gets beyond the preliminary injunction stage, a federal court is somewhat more likely to grant summary judgment (dismiss the case without trial) than a state court. And fourth, if there are questions of fact to be decided, the Dems are probably entitled to a jury trial in state court – which would take more time than a bench trial – but probably not entitled to one in federal court.

The Dems do get one major advantage by having the case in federal court. State judges are elected, and most of the appellate judges who would hear an appeal from the state court are elected Republicans who are, in some form or another, beholden to the TRP. The federal judges are appointed for life and are less beholden to the TRP.

I do want to say that I don't think the partisan affiliation of any of these judges would be the primary factor in their decision. In my experience, partisan affiliation has far less to do with a judge's decisions than many people think, and almost all judges take their oath to uphold the law very seriously.