Motion to remand and support brief, New Richmond News v. City of New Richmond

7/23/2019 Motion to remand and support brief, New Richmond News v. City of New Richmond

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UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WISCONSIN

NEW RICHMOND NEWS127 S. Knowles Avenue

New Richmond, WI 54017,

and

STEVEN DZUBAY127 S. Knowles AvenueNew Richmond, WI 54017,

Plaintiffs,v.

CITY OF NEW RICHMOND156 East First Street


Defendant.

Case No. 13-cv-272

PLAINTIFFS MOTION TO REMAND

Plaintiffs New Richmond News and Steven Dzubay (collectively, the Newspaper), by

its attorneys, Godfrey & Kahn, S.C., moves this Court pursuant to 28 U.S.C. 1447(c), to

remand the above-captioned case to the Circuit Court for St. Croix County, Wisconsin for lack of

subject-matter jurisdiction. Oral argument is not requested. The reasons for the Newspapers

motion are contained in the accompanying brief.

WHEREFORE, Newspaper respectfully requests that this Court remand this case to the

Circuit Court for St. Croix County, Wisconsin.

Case: 3:13-cv-00272-slc Document #: 6 Filed: 05/17/13 Page 1 of 2


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Dated: May 17, 2013 s/ onica Santa MariaRobert J. Dreps (#1006643)Monica Santa Maria (#1056390)Godfrey & Kahn, S.C.One East Main Street, Suite 500PO Box 2719

Madison, WI 53701-2719Phone: 608-257-3911Fax: 608-257-0609

Attorneys for Plaintiffs New Richmond Newsand Steven Dzubay



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UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WISCONSIN

NEW RICHMOND NEWS127 S. Knowles Avenue


and

STEVEN DZUBAY127 S. Knowles AvenueNew Richmond, WI 54017,

Plaintiffs,

v.

CITY OF NEW RICHMOND

156 East First StreetNew Richmond, WI 54017,

Defendant.

Case No. 13-cv-272

PLAINTIFFS BRIEF IN SUPPORT OF MOTION TO REMAND

The City of New Richmond asserts there exists federal question jurisdiction over this

action, pursuant to 28 U.S.C. 1331. See Notice of Removal, 4. If arising under

jurisdiction exists pursuant to 28 U.S.C. 1331, however, the basis for that jurisdiction must be

found in the state-law claim filed by New Richmond News and Steven Dzubay (collectively, the

Newspaper) under Wisconsins Open Records Law, Wis. Stat. 19.31-19.39 (2011-12).

Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 804, 808 (1986) (the question for removal

jurisdiction must . . . be determined by reference to the well-pleaded complaint.). [A]

potential federal defense is not enough to create federal jurisdiction under 1331. Chicago

Tribune Co. v. Bd. of Trus. of Univ. of Ill., 680 F.3d 1001, 1003 (7th Cir. 2012).

Most claimants of federal question jurisdiction under 1331 have brought suit under a

federal cause of action. SeeGunn v. Minton, ___ U.S. ____, 133 S. Ct. 1059, 1064 (2013).

Under precedent applied in Grable & Sons Metal Prods., Inc. v. Darue Engg & Mfg. , 545 U.S.



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308, 312 (2005), however, a special and small category of cases has been recognized where

arising-under jurisdiction may be found even in a state-law claim if that claim raises a substantial

issue of federal law. To obtain federal jurisdiction in that limited category of cases, the federal

issue must be (1) necessarily raised, (2) actually disputed, (3) substantial and (4) capable of

resolution in federal court without disrupting the federal-state balance approved by Congress.

Gunn, 133 S. Ct. at 1064 (enunciating Grable elements). This state-law case does not meet that

standard.

A. Because there is a possibility that this case will be decided on state-lawgrounds, there is no federal issue necessarily raised within the meaning of

Grable.

On facts that are strikingly similar to the facts of this case, the Seventh Circuit held that a

state-law claim under an Illinois public records law did not arise under federal law within the

meaning ofGrable.

In that case, the Chicago Tribune newspaper sought information about applicants to the

University of Illinois through the Illinois Freedom of Information Act (Illinois FOIA).

Chicago Tribune, 680 F.3d at 1002. Under 7(1)(a) of the Illinois FOIA, records that are

prohibited from disclosure by federal or state law are to be withheld from the public. Id. The

University invoked this state-law exception to deny the newspapers request, citing a provision

of the Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. 1232g(b)(1),

which prohibits the disclosure of certain education records. Id. The newspaper commenced a

declaratory judgment action in federal court to test the validity of this claimed exception but the

Seventh Circuit ruled the case must be dismissed for lack of subject matter jurisdiction. Id. at

1007.

The Seventh Circuit reasoned that no federal issue was necessarily raised because it was

possible that the case might be decided solely on the basis of state law. Id. at 1004. That

possibility existed because a court would first need to construe the scope of 7(1)(a) of the



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Illinois FOIA, which provided the disclosure exception, before it reached any federal issues

related to FERPA. Id. at 1004. That construction could be outcome determinative, the court

noted. Id. Moreover, even though the University raised a federal defense based on FERPA, the

Seventh Circuit held the state court was the proper forum to determine the validity of that

defense because the newspapers claim arose under state law. See id. at 1003, 1006 (a potential

federal defense is not enough to create federal jurisdiction under 1331).

The same analysis applies here. The Newspaper alleges the City violated Wisconsins

Open Records Law by redacting names and other personal information from law enforcement

reports related to vehicular accidents and a theft investigation. The Newspaper has not brought a

claim under federal law; the federal issues presented under the Drivers Privacy Protection Act

(DPPA), 18 U.S.C. 2721-2725, result only from the City of New Richmonds defenses to

that claim.

Under the Open Records Law, the Newspaper is entitled to inspect and copy the

requested records without redactions, unless the personal information the City withheld is

specifically exempted from disclosure by state or federal law or authorized to be exempted from

disclosure by state law. . . , Wis. Stat. 19.36(1). Under the DPPA, disclosure of a drivers

personal information is permitted [f]or use by any government agency, including any court or

law enforcement agency, in carrying out its functions. 18 U.S.C. 2721(b)(1). The scope of

the official functions to which the DPPA refers is not defined in the statute. Thus, to

determine whether the DPPA prohibits the full disclosure of the requested recordsas the

Department assertsthe court will need to construe the scope of the functions of the City of

New Richmond Police Department under Wisconsin law. This state-law analysis has already

been performed at least once.

The Wisconsin Attorney General reviewed the DPPA in 2008 and concluded that the

DPPA authorizes disclosures made pursuant to an open records request because complying with

the Open Records Law is an official function of Wisconsins law enforcement agencies. Opinion

of the Wis. Atty Gen. to Robert Dreps & Jennifer L. Peterson, I-02-08, 2008 WL 1970575 at *5-



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*7 (Apr. 29, 2008) (attached to complaint, Ex. C).

Under Wisconsin law, making records available for inspectionpursuant to the Public Records Law is a duty of public officers and

employees and a routine function of the government agencies bywhich they are employed. Providing such information is an

essential function of a representative government and an integralpart of the routine duties of officers and employees responsible for

providing such access. Wis. Stat. 19.31.

. . .

Reading [the DPPA] so restrictively that law enforcement agencies

would be precluded from carrying out public records functions,including redisclosing personal information obtained from the state

DMV and used in law enforcement reports . . . would subvert theimportant governmental objective of facilitating public oversight ofpolice investigations; impair public confidence in law enforcement

activities; and do exactly what Congress intended to avoidimpede

execution by law enforcement officers of their legitimate publicduties and responsibilities. If [the DPPA] allows a law enforcement

agency toproactively release personal information to the public

through media agents for functions including bolstering public

confidence in law enforcement activities, it certainly should allowlaw enforcement agencies to release personal information in their

reports when engaged in their statutory function ofrespondingto

public records requests.

. . .[W]e conclude that after a law enforcement officer has written a

report or citation, including certain personal information obtainedfrom the DMV, the officers agency may provide a copy of the

report or citation in response to a public records request. Just likewriting the report or citation, responding to a related public records

request is a function of the law enforcement agency. Cf. Wis. Stat.

19.31. The DPPA does not require redaction of the personalinformation from law enforcement records provided in response to

the public records request.

Id. (some internal citations omitted)

Although this opinion is not binding on a Wisconsin (or federal) court, it demonstrates

that the Newspapers claim could be decided on state-law grounds, specifically, based on the

scope of a law enforcement agents official functions. A federal forum is not necessary to



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resolve a dispute focused on Wisconsin law enforcement agency functions. Indeed, determining

that state-law issue in federal court would arguably disrupt the federal-state balance approved

by Congress, Gunn, 133 S. Ct. at 1064, since Congress chose not to define the scope of that

exemption in the DPPA. Whatever ancillary federal issues are implicated by the Newspapers

claim, including construction of any disputed provisions of the DPPA, the state courts are

constitutionally authorized to decide. See Chicago Tribune, 680 F.3d at 1006.

B. Any federal issues implicated by the Newspapers state-law claim are notsubstantial within the meaning ofGrable.

Even if the Court concludes that construction of the DPPA is a necessary part of the

Newspapers claim, there is no substantial federal issue related to that analysis requiring a

federal forum. Demonstrating that a federal issue is substantial underGrable is not easy.

[I]t is not enough that the federal issue be significant to the

particular parties in the immediate suit; that will always be truewhen the state claim necessarily raise[s] a disputed federal issue,

as [the case law] separately requires. The substantiality inquiry. . .

looks instead to the importance of the issue to the federal system asa whole.

Gunn, 133 S. Ct. at 1066;Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 701

(2006) (it takes more than a federal element to open the arising under door) (internal quotation

and citation omitted).

Grable illustrates the stringent requirements for this narrow category of cases. That case

involved a state-law claim raising a collateral attack on the propriety of a federal agencys

administrative action, in which the federal question was the only disputed issue and could be

decided as a pure issue of law. Grable , 545 U.S. at 312 (quiet title action against purchaser of

real property, which the IRS had seized to satisfy a tax lien based upon allegedly improper notice

to the original owner);see also Smith v. Kansas City Title & Trust Co., 255 U.S. 180 (1921)

(state claim raising issues regarding the constitutionality of bonds issued by the federal



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government). In Grable, the federal government itself had an interest in vindicating its own

administrative action and in ensuring its ability to collect on delinquent taxes. Gunn, 133 S. Ct.

at 1066 (construing Grable).

In the instant case, by contrast, the federal government, itself, has no interest in the

construction of the DPPA or in its application to Wisconsin law under the facts of this claim. Far

from challenging the propriety of the federal governments actionsas in Grable and Smith

the Newspaper challenges the propriety of the actions of a Wisconsin municipality. Because it is

Wisconsin, and not the federal government, whose interests must be vindicated, this case belongs

in Wisconsins courts.

Nothing in the DPPA suggests Congress intended to provide a federal forum for

determining the application of the official functions exemption to any state public records law.

See Empire Healthchoice, 547 U.S. at 696 (Congress can easily create federal jurisdiction when

drafting a statute, whenever if finds such jurisdiction necessary and proper). Such a disruption of

the federal-state balance would not even come with the added benefit of establishing a rule

applicable to numerous other cases. Id. at 700. Instead, it would open the doors of the federal

courts to every public records requester whose request is denied based on a claimed federal law

exemption. Such a result is flatly contradictory to the holding in Chicago Tribune and the

Supreme Courts repeated instruction that the category of cases that fall within the scope of

Grable is special and small. Grable, 545 U.S. at 312; Gunn, 133 S. Ct. at 1065;Empire

Healthchoice, 547 U.S. at 699.

CONCLUSION

Because there is no substantial federal issue necessarily raised by the Newspapers

claim, federal jurisdiction under 1331 could only be found if the claim had been created by

federal law. It wasnt. This case must be remanded to the state court for lack of subject-matter

jurisdiction.



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Dated: May 17, 2013 s/ onica Santa MariaRobert J. Dreps (#1006643)

Monica Santa Maria (#1056390)Godfrey & Kahn, S.C.One East Main Street, Suite 500PO Box 2719Madison, WI 53701-2719Phone: 608-257-3911Fax: 608-257-0609

Attorneys for PlaintiffsNew Richmond News andSteven Dzubay

9475130.1


Documents

Motion to remand and support brief, New Richmond News v. City of New Richmond