COMMONWEALTH OF MASSACHUSETTS APPEALS COURT NO. 03-P THOMAS MULHERN, Plaintiff, JOHN G. MACLEOD d/b/a ABC MORTGAGE COMPANY, Defendant

Transcription

1 COMMONWEALTH OF MASSACHUSETTS APPEALS COURT NO. 03-P-1302 THOMAS MULHERN, Plaintiff, v. JOHN G. MACLEOD d/b/a ABC MORTGAGE COMPANY, Defendant v. FAX.COM, INC. and FAX I.D., INC., Third Party Defendants ON APPEAL FROM A JUDGMENT OF THE WORCESTER SUPERIOR COURT BRIEF OF AMICUS CURIAE Robert Biggerstaff Robert Biggerstaff, amicus curiae POB 614 Mt. Pleasant, SC (843)

2 TABLE OF CONTENTS TABLE OF CONTENTS ii TABLE OF AUTHORITIES iv STATEMENT OF THE ISSUES, STATEMENT OF THE FACTS, and STATEMENT OF THE STANDARD OF REVIEW SUMMARY OF THE ARGUMENT ARGUMENT I. CAN CONGRESS CREATE A FEDERAL CAUSE OF ACTION VESTED WITH EXCLUSIVE STATE COURT JURISDICTION? II. A. History of state court jurisdiction for federal claims B. Do state courts have to exercise their jurisdiction over federal claims? C. Earlier state responses to the use of state courts for federal claims D. The modern application of the balance of sovereigns and the Tenth Amendment E. Modern cases recognize the state courts are compelled to hear federal claims, and the possibility of exclusive state court jurisdiction for a federal claim CAN CONGRESS PERMIT A STATE TO AVOID THE SUPREMACY CLAUSE MANDATE THAT STATE COURTS REMAIN OPEN TO FEDERAL CAUSES OF ACTION, AND IF SO, HOW MUST SUCH AN INTENT BE MANIFEST?. 17 A. The Clear Statement Rule B. What is a clear statement sufficient to alter federal-state balance? C. The TCPA does not satisfy the Clear Statement rule so as to permit a state to consider its state courts closed absent opt-in legislation D. Construction by sister state courts E. Massachusetts courts are open to common law suits against junk faxers III. BURDEN ON STATE COURTS WAS NOT AN ISSUE ii

3 IV. PLAIN LANGUAGE AS CONSTRUED BY DICTIONARY TERMS A. What does if otherwise permitted really mean? V. RELIANCE ON AUTOFLEX LEASING, INC., V. MANUFACTURERS AUTO LEASING, INC., IS MISPLACED A. The Texas Supreme Court discredited the Autoflex decision B. Other errors in the Autoflex decision Nicholson v. Hooters of Augusta, Inc., is cited in error Chair King v. Houston Cellular, Inc., is cited in error Murphey v. Lanier is cited in error VI. Conclusion iii

4 TABLE OF AUTHORITIES Cases America Online, Inc. v. IMS, 24 F.Supp.2d 548 (E.D.Va. 1998) America Online, Inc. v. National Health Care Discount, Inc., 174 F.Supp.2d 890 (N.D. Iowa, 2001) Aronson v. Fax.com, Inc., 51 Pa. D. & C. 4th 421 (Pa. C.P. 2001) Autoflex Leasing, Inc., v. Manufacturers Auto Leasing, Inc., 16 S.W.3d 815 (Tex.App. 2000) , 36-38, 42 Bush v. Lucas, 462 U.S. 367(1983) Chair King v. Houston Cellular, 1995 W.L at *2 (S.D. Tex. Nov. 7, 1995).. 30 Chair King v. Houston Cellular, 131 F.3d 507 (5th Cir. 1997) , 40 Claflin v. Housman, 93 U.S. 130 (1876) , 13, 15 Coleman v. Varone, 2001 TCPA Rep (Mo. Cir. Mar. 26, 2001) CompuServe, Inc. v. Cyber Promotions, Inc., 962 F.Supp (S.D.Ohio, 1997) Condon v. Office Depot, Inc., -- So.2d --, 2003 TCPA Rep. 1210, 2003 WL (Fla. App. Aug. 22, 2003) Davidson v. Champlin, 7 Conn. 244 (1828) Donnelly v. Yellow Freight Sys., 874 F.2d 402 (7th Cir. 1989) , 12, 15, 36 Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568 (1988) Egenreither v. Carter, 23 S.W.3d 641 (Mo.App. E.D. 2000) iv

5 Gregory v. Ashcroft, 501 U.S. 452 (1991) Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473 (1981) , 18 Haney v. Sharp, 31 Ky. 442 (1833) Hilton v. South Carolina Pub. Rys. Comm'n, 502 U.S. 197 (1991) Holmgren v. United States, 217 U.S. 509 (1910) Howlett v. Rose, 469 U.S. 356 (1990) , 43 INS v. St. Cyr, 121 S.Ct (2001) Int l Science & Tech. Inst., Inc. v. Inacom Commun., Inc., 106 F.3d 1146 (4 th Cir.1997).... 2, 31, 38, 41, 42 Jackson v. Rose, 4 Va. 34 (1815) Kaplan v. Democrat and Chronicle, 698 N.Y.S.2d 799 (N.Y.App. 1999) , 28 Kaufman v. ACS Systems, Inc., 2 Cal.Rptr.3d 296, 2003 TCPA Rep (Cal. App. 2003) , 42 Kentucky v. Dennison, 65 U.S. 66 (1860) Kline v. Burke Constr. Co., 260 U.S. 226 (1922) , 17 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) Lary v. Flasch Bus. Consulting, Inc., -- So.2d --, 2003 TCPA Rep (Ala. App. Oct. 31, )25 Lawrence v. State Tax Comm n, 286 U.S. 276 (1932) v

6 Maine v. Taylor, 477 U.S. 131 (1986) , 22 Marathon Oil Co. v. Ruhrgas, 145 F.3d 211 (5th Cir. 1998) , 15 Mathison v. Missouri, 3 Mo. 421 (1834) , 13 Mondou v. New York, New Haven, & Hartford R.R. Co. (Second Employers Liability Cases), 223 U.S. 1 (1912) , 13, 15, 34, 40 Murphey v. Lanier, 204 F.3d 911 (9th Cir. 2000) , 42 New York v. United States, 505 U.S. 144 (1992) Nicholson v. Hooters of Augusta, Inc., 136 F.3d 1287 (11th Cir. 1998) Nicholson v. Hooters of Augusta, Inc., 537 S.E.2d 468 (Ga. App. 2000) (en banc) Palmore v. United States, 411 U.S. 389 (1973) Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842) Printz v. United States, 521 U.S. 898 (1997) , 32 Re. Stephens, 4 Gray 559 (Mass. 1855) Reynolds v. Diamond Foods and Poultry, 79 S.W.3d 907 (Mo. 2002) (en banc) Salinas v. United States, 522 U.S. 52 (1997) Schulman v. Chase Manhattan Bank, 710 N.Y.S.2d 368 (N.Y.App. 2000) State ex. Rel Rushwort v. Judges of Inferior Court of Common Pleas of Hudson County, 58 N.J.L. 97 (N.J. 1895) vi

7 State v. McBride, 24 S.C.L. 400 (1839) Tafflin v. Levitt, 493 U.S. 455, 458 (1990) Testa v. Katt, 330 U.S. 386 (1947)... 11, 13, 15, 17, 20, 22, 43 Thrifty-Tel, Inc. v. Bezenek 46 Cal.App.4th 1559 (Cal. App. 1996) United States v. Bass, 404 U.S. 336 (1971) , 22 United States v. Jones, 109 U.S. 513 (1883) , 10, 33, 41, 42 United States v. Lathrop, 17 Johns. 4 (N.Y. 1819) United States v. Lopez, 514 U.S. 549 (1995) Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989) Worsham v. Nationwide Ins., 772 A.2d 868 (Md. App. 2001) , 28 Zelma v. Market U.S.A., 778 A.2d 591 (N.J.Super.A.D. 2001) Zelma v. Total Remodeling, Inc., 756 A.2d 1091 (Super. Ct. N.J. 2000) , 29 Statutes 15 U.S.C. 3207(b) (1994) U.S.C. 77v(a) (Supp. IV 1998) U.S.C U.S.C (Supp. IV 1998) U.S.C. 3017(e) (Supp. IV 1998) U.S.C. 604a(i) (Supp. IV 1998) vii

8 47 U.S.C. 227(b) U.S.C. 402(b) (Supp. IV 1998) NMSA (New Mexico, enacted in 1947) Texas Business & Commerce Code Constitutions U.S. Constitution, art. VI viii

9 Other Materials Antifederalist No. 82 (Robert Yates) (Morton Borden ed. 1965) Black s Law Dictionary (6th Ed. 2000) Henry Hart, The Relations Between State and Federal Law, 54 COLUM. L.REV. 489 (1954) James Madison, The Debates in the Federal Convention of 1787, June 5, , 7 James Madison, The Debates in the Federal Convention of 1787, July 18, Mark D. Robins, Electronic Trespass: An Old Theory in a New Context, 15 Computer Law 1 (1998) Michael D. Collins, Article III cases, State Court Duties, and the Madisonian Compromise, 1995 WIS. L.REV. 39, 157 (1993) , 10 Restatement (Second) of Torts 217(b), 218(b) Texas Rules of Appellate Procedure, Rule 56.1(b)(1). 37, 38 THE FEDERALIST NO. 82 (Alexander Hamilton) (E. Bourne ed. 1947) Webster's New Universal Unabridged Dictionary 1336 (2d ed. 1983) ix

10 STATEMENT OF THE ISSUES, STATEMENT OF THE FACTS, and STATEMENT OF THE STANDARD OF REVIEW Amicus adopts the Statement of the Issues Presented for Review, Statement of the Case and Prior Proceedings, and Statement of Facts as presented by Appellant. 1

11 SUMMARY OF THE ARGUMENT Exclusive state court jurisdiction for a federal cause of action is exceptionally uncommon. There are potential Constitutional issues raised by this unique jurisdiction and a review of the filings in the court below indicates that many authorities and arguments may not have been fully considered while those that were considered were misapplied or misinterpreted. While the issue is stated simply as Whether Massachusetts citizens may pursue a private claim in state court against telemarketers who violate the TCPA there are a number of critical threshold questions underlying that issue. Among these are: Can Congress create a federal cause of action vested with exclusive state court jurisdiction? If so, are states obligated to hear those cases in state courts without state consent? If so, then there is no concern compelling an option of optin or opt-out to avoid a hypothetical Tenth Amendment problem Can Congress give a state the option to ignore the Supremacy Clause mandate that state courts remain open to federal causes of action, and if so, how must such an intent be manifest? Did Congress intend to permit suits under the TCPA only after a state had taken legislative action permitting TCPA actions by name? In addition, the court below has implicitly relied on haphazard dicta from Int l Science & Tech. Inst., Inc. v. Inacom Commun., Inc., 106 F.3d 1146 (4 th Cir.1997), without realizing that there are substantive flaws in that decision which violate well settled principles of constitutional law. Once exposed, those flaws cast considerable doubt on the 2

12 decision below. 1 The court below also cited and relied on a discredited Texas case in support of its decision. Autoflex Leasing, Inc., v. Manufacturers Auto Leasing, Inc., 16 S.W.3d 815 (Tex.App. 2000). However, the Texas Supreme Court entered an order that denoted the Autoflex decision had not correctly declared the law in all aspects. It cites many authorities in complete error, and has no persuasive weight. Since it was subsequently discredited by the Texas Supreme Court, it should not be relied on as authority. (Pg. 36 infra). A review of the Constitutional provisions regarding the role of state courts in adjudicating federal cases shows there can be no real dispute that state courts have original jurisdiction to hear federal civil claims. Nor is it disputable that Congress has plenary authority to leave that original jurisdiction exclusive, to share it with concurrent federal court jurisdiction, or to remove state court jurisdiction entirely by setting out exclusive federal court jurisdiction for a specific federal claim. (Pg. 14 infra). However, to accomplish what the court below held Congress intended (allowing state to decline jurisdiction by not opting-in to the TCPA), it is black letter law that 1 In Int l Science, these errors were harmless, as the issue in that case was whether federal courts had subject matter jurisdiction over TCPA actions. The errors did not affect that issue. 3

13 Congress must employ a clear statement to demonstrate that intent unambiguously. (Pg. 18 infra). No such clear statement exists in 47 U.S.C. 227(b). Every case to address this decision that has reached its final adjudication has ultimately resulted in rejection of the explicit opt-in argument. Application of the plain dictionary terms reinforces this conclusion. (Pg. 32 infra). Even if state opt-in were necessary, Massachusetts has already otherwise permitted suites in state court under federal law such as the TCPA by the creation of courts of general jurisdiction. G.L. c. 212, 4, provides that the Superior Court shall have original jurisdiction of all civil actions except those of which other courts have exclusive jurisdiction. States are under no constitutional obligation to do so, but by choosing to create state courts of unlimited general jurisdiction, the Constitution requires those courts to be open to all claims. 4

14 ARGUMENT I. CAN CONGRESS CREATE A FEDERAL CAUSE OF ACTION VESTED WITH EXCLUSIVE STATE COURT JURISDICTION? State court 2 jurisdiction to hear federal causes of action is well settled. It is original jurisdiction, and is mandatory. 3 Once Congress has vested jurisdiction over a federal claim in the state courts, the state courts, including the courts of [this state] are under a constitutional obligation to exercise jurisdiction. Donnelly v. Yellow Freight Sys., 874 F.2d 402 (7th Cir. 1989), aff d 494 U.S. 820 (1990). It is an obligation imposed by the Constitution and was implemented by intentional design by the drafters. The Constitution grants Congress the power to revoke the original jurisdiction of state courts for a federal claim by providing that a particular federal claim will be heard exclusively by federal courts. The question presented now is whether Congress also has the power to withhold the grant of federal 2 State court is used to indicate a state court of general jurisdiction, such as denoted by G.L. c. 212, 4. 3 Federal courts on the other hand, have limited jurisdiction and with limited exceptions, can only hear claims specifically granted to them. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) ( Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute.... ); Bush v. Lucas, 462 U.S. 367, 373 (1983) ( [F]ederal courts are courts of limited jurisdiction whose remedial powers do not extend beyond the granting of relief expressly authorized by Congress. ) 5

15 court jurisdiction for a federal cause of action, leaving sole jurisdiction in state courts. A. History of state court jurisdiction for federal claims. The balance of sovereigns in our system of federalism is delicately balanced. The monarchal systems of Europe placed too much power in the central government. Chafing at that centralized structure, our Union initially operated under the Articles of Confederation, which ultimately provided a central government too weak to be sufficiently unifying. The delegates to the Constitutional Convention wrestled with this balance, and one of the most difficult issues to resolve was the role of the federal judiciary. The federalists felt a compelling need for a powerful federal judiciary, lest the Union would be the mere trunk of a body, without arms or legs to act or move. James Madison, The Debates in the Federal Convention of 1787, June 5, State courts were not trusted by the federalists to enforce federal law. Id., July 18, 1787 (Mr. Randolph). Under the Articles of Confederation, state courts had often ignored and refused to enforce federal laws. However, a large federal judiciary was seen by the anti-federalists as an infringement on states rights. See Antifederalist No. 82 (Robert Yates) (Morton Borden ed. 1965). The working draft of the Constitution established federal trial courts (inferior tribunals) but southern state 6

16 representatives were adamantly opposed to federal trial courts, and had that clause reconsidered, and removed: Mr. Rutlidge [of South Carolina] havg. obtained a rule for reconsideration of the clause for establishing inferior tribunals under the national authority, now moved that that part of the clause in propos. 9. should be expunged: arguing that the State Tribunals might and ought to be left in all cases to decide in the first instance the right of appeal to the supreme national tribunal being sufficient to secure the national rights & uniformity of Judgmts: that it was making an unnecessary encroachment on the jurisdiction of the States, and creating unnecessary obstacles to their adoption of the new system. The Debates in the Federal Convention of 1787, June 5, Antifederalists like Rutledge feared federal jurists usurping and reversing state court decisions on an ad hoc basis. They demanded that no federal courts, other than a supreme federal court, be provided for in the Constitution, insisting that state courts be utilized as federal trial court. See, generally, Michael D. Collins, Article III cases, State Court Duties, and the Madisonian Compromise, 1995 WIS. L.REV. 39 (1993). This Gordian knot of federal judicial power structure was solved by the compromise proposed by James Madison (the Madisonian Compromise) which consisted of three principles: - The Constitution would only create a single Supreme Court, with the existence and the size of the inferior federal courts (Article III courts) to be determined by the states acting through Congress. - Federal courts would only review state court decisions on issues of federal law. 7

17 - States courts would hear federal cases, except those declared to be the exclusive jurisdiction of the federal courts, and would be bound to follow and enforce federal law. As a result, no federal trial courts were created directly by the Constitution, but Congress could create them if it saw fit to do so. Thus the possibility that no federal trial courts would be created by Congress would leave sole original jurisdiction for federal claims in state courts. Indeed, general federal question jurisdiction itself is wholly a statutory creation, and not a part of any constitutional duty. Thus the exclusive state court jurisdiction for the TCPA and similar statutes 4 is implicit in the Constitution since Congress could simply refuse to provide for federal court jurisdiction for a federal claim. To the extent that Congress elects to confer only limited jurisdiction on the federal courts, state courts become the sole vehicle for obtaining initial review of some federal and state claims. Marathon Oil Co. v. Ruhrgas, 145 F.3d 211, 216 (5th Cir. 1998) rev'd on other grounds, 526 U.S. 574 (1999). 4 Congress seems somewhat enamored of exclusive state court jurisdiction for some federal claims, and has implemented that policy in several pieces of recent legislation other than the TCPA. See, e.g., Deceptive Mail Prevention and Enforcement Act, Pub. L. No , Sec. 3017(e) (codified at 39 U.S.C. 3017(e) (Supp. IV 1998)) (injunction/recovery with respect to prohibited mailings); 42 U.S.C. 604a(i) (Supp. IV 1998) (enforcement/compliance with respect to public welfare grants to states); 15 U.S.C. 3207(b) (1994) (enforcement of natural gas retail sales regulation). 8

18 B. Do state courts have to exercise their jurisdiction over federal claims? From the very founding of our system of federalism, it has been axiomatic that the states are parts of one whole, and by express design the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union, where it was not expressly prohibited. THE FEDERALIST NO. 82, at 132 (Alexander Hamilton) (E. Bourne ed. 1947). Under this system of dual sovereignty, we have consistently held that state courts have inherent authority, and are thus presumptively competent, to adjudicate claims arising under the laws of the United States. Tafflin v. Levitt, 493 U.S. 455, 458 (1990). Prior to the twentieth century, however, states were generally not compelled to exercise that jurisdiction if they objected to it: At different times various duties have been imposed by acts of [C]ongress on state tribunals; they have been invested with jurisdiction in civil suits, and over complaints and prosecutions for fines, penalties, and forfeitures arising under laws of the United States. 1 Kent, 400. And though the jurisdiction thus conferred could not be enforced against the consent of the states, yet, when its exercise was not incompatible with state duties, and the states made no objection to it, the decisions rendered by the state tribunals were upheld. United States v. Jones, 109 U.S. 513, 520 (1883). See, also, Kentucky v. Dennison, 65 U.S. 66, 109 (1860); Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842). In the early days of the republic, states willingly consented to their 9

19 courts being open to adjudication of federal claims. Professor Collins alludes to this as a Golden Age of cooperation... when state courts were rather more willing to do what they later refused to do. Michael D. Collins, Article III cases, State Court Duties, and the Madisonian Compromise, 1995 WIS. L.REV. 39, 157 (1993). See also Jones, supra at 520 ( Their [state courts] use has not been deemed violative of any principle or as in any manner derogating from the sovereign authority of the federal government; but as a matter of convenience and as tending to a great saving of expense. ) C. Earlier state responses to the use of state courts for federal claims. A number of state courts, including those in Massachusetts, eventually did decline to hear federal claims. See, e.g., Re. Stephens, 4 Gray 559 (Mass. 1855); Mathison v. Missouri, 3 Mo. 421 (1834); Davidson v. Champlin, 7 Conn. 244 (1828); Haney v. Sharp, 31 Ky. 442 (1833); State v. McBride, 24 S.C.L. 400 (1839); Jackson v. Rose, 4 Va. 34 (1815); United States v. Lathrop, 17 Johns. 4 (N.Y. 1819); State ex. Rel Rushwort v. Judges of Inferior Court of Common Pleas of Hudson County, 58 N.J.L. 97, (N.J. 1895). This line of cases however, has not survived into this century. Soon after the Civil War, the Supreme Court dispelled the fiction that state courts could refuse to hear claims brought under federal law or that the enforcement of federal 10

20 rights in state courts was contingent on the consent of the states. Claflin v. Houseman, 93 U.S. 130, 137 (1876). ( But this is no reason why the State courts should not be open for the prosecution of rights growing out of the laws of the United States, to which their jurisdiction is competent, and not denied. ) Any remaining doubt was erased by Mondou v. New York, New Haven, & Hartford R.R. Co. (Second Employers Liability Cases), 223 U.S. 1 (1912): [W]e deem it well to observe that there is not here involved any attempt by Congress to enlarge or regulate the jurisdiction of state courts, or to control or affect their modes of procedure, but only a question of the duty of such a court, when its ordinary jurisdiction, as prescribed by local laws, is appropriate to the occasion, and is invoked in conformity with those laws, to take cognizance of an action to enforce a right of civil recovery arising under the act of Congress, and susceptible of adjudication according to the prevailing rules of procedure. Id. at The proverbial nail in the coffin for the argument that states had the power to close their courts to federal claims came in Testa v. Katt, 330 U.S. 386 (1947), which held states had no power to close their courts of general jurisdiction to federal claims. The modern view has not changed. The Second Employers Liability Cases stand for the proposition that a state court must entertain a claim arising under federal law when its ordinary jurisdiction as prescribed by local law is appropriate to the occasion and is invoked in conformity with those laws. Printz v. United States, 521 U.S. 898, 906 (1997). State 11

21 courts are under a constitutional obligation to fulfil their role in the federal scheme. Once Congress has vested jurisdiction over a federal claim in the state courts, the state courts, including the courts of [this state] are under a constitutional obligation to exercise jurisdiction. Donnelly v. Yellow Freight Sys., 874 F.2d 402 (7th Cir. 1989), aff d 494 U.S. 820 (1990). A state can not deny federal rights to the citizenry by limiting access to the state s courts. Indeed, federally created rights are denied as well by the refusal of the state court to decide the question, as by an erroneous decision of it. Lawrence v. State Tax Comm n, 286 U.S. 276, 282 (1932). D. The modern application of the balance of sovereigns and the Tenth Amendment. It does not take a lawyer or a history professor to point out that the balance of power between the federal and state sovereigns in this Union has been the source of much strife, brought about a civil war, and generated much litigation. Modern United States Supreme Court cases have established ultimate autonomy of state legislatures (New York v. United States, 505 U.S. 144 (1992)) and of state executive offices (Printz v. United States, 521 U.S. 898 (1997)) under the Tenth Amendment. With a few exceptions such as the Spending Clause power, states legislatures and state executives are free from coercion and commandeering by the federal government. Under the Tenth Amendment, if the federal government wants to regulate, it 12

22 must do so itself, and not command the state legislature to do so in its stead. New York v. United States, 505 U.S. 144, 178 (1992). ( Where a federal interest is sufficiently strong to cause Congress to legislate, it must do so directly; it may not conscript state governments as its agents. ) But state courts are different. They are singled out in the Constitution for a special role in the federal scheme: This Constitution, and the Laws of the United States... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding. Supremacy Clause, U.S. Constitution, art. VI. For many years, there was little question of the duty of state courts of general jurisdiction to fulfill this role. Exploration of the early acts of Congress reveals they are replete with Congressional use of that duty. Many examples are recited in both the majority and the dissent in Printz. See Printz, 521 U.S. at ; Id. at (Stephens, Souter, Ginsberg, Breyer, JJ. dissenting). Eventually some states did challenge that duty. See, e.g., Mathison v. Missouri, 3 Mo. 421 (1834). Prior to the Civil War, decisions on that duty were mixed, but in Claflin v. Houseman, 93 U.S. 130, (1876), the United States Supreme Court settled the issue dispositively. Subsequent decisions such as Mondou and Testa v. Katt, 330 U.S

23 (1947), all unanimously reaffirmed this position. Decisions invalidating federal laws in cases such as New York v. United States, 505 U.S. 144 (1992) (attempting to require states to pass specific legislation) and Printz v. United States, 521 U.S. 898 (1997) (attempting to require state law enforcement to conduct federal background checks on gun purchasers) delineated a line that Congress can not cross in compelling state legislatures and executives to act as federal proxies. But these cases do not alter the constitutionally mandated role of state courts in the federal scheme. State legislatures and state executives are not directed by the Constitution enforce federal law and to be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding. State courts however are required to do so. E. Modern cases recognize the state courts are compelled to hear federal claims, and the possibility of exclusive state court jurisdiction for a federal claim. There is ample authority that state courts are mandated by the Constitution to hear federal claims, and Congress has plenary authority to utilize state courts in that role. Federal statutes enforceable in state courts do, in a sense, direct state judges to enforce them, but this sort of federal direction of state judges is mandated by the text of the Supremacy Clause. New York v. United States, 505 U.S. 144, 178 (1992); Some of these cases discuss the well 14

24 established power of Congress to pass laws enforceable in state courts. Id. at 178, listing Testa v. Katt, 330 U.S. 386 (1947), Palmore v. United States, 411 U.S. 389, 402 (1973), Mondou v. New York, 223 U.S. at 57, and Claflin v. Housman, 93 U.S. 130, (1876). The federal courts also recognize that the Constitution has provided for exclusive state court jurisdiction for federal claims. If Congress does not confer jurisdiction on federal courts to hear a particular federal claim, the state courts stand ready to vindicate the federal right, subject always to review, of course, in this Court. Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, n4 (1981). Once Congress has vested jurisdiction over a federal claim in the state courts, the state courts, including the courts of Illinois, are under a constitutional obligation to exercise jurisdiction. Donnelly v. Yellow Freight Sys., 874 F.2d 402 (7th Cir. 1989), aff d 494 U.S Because federal courts are courts of limited jurisdiction, state courts must stand ready to vindicate federal rights, subject to review by the Supreme Court, should Congress decide not to confer jurisdiction upon the federal courts to hear a particular federal claim. Id., at (internal citations omitted). To the extent that Congress elects to confer only limited jurisdiction on the federal courts, state courts become the sole vehicle for obtaining initial review of some federal and state claims. Marathon Oil Co. 15

25 v. Ruhrgas, 145 F.3d 211, 216 (5th Cir. 1998) rev'd on other grounds, 526 U.S. 574 (1999). Now consider the consequences if exclusive state court jurisdiction for a federal cause of action were construed to be an unconstitutional burden on states. That would mean that every federal act would be constitutionally required to have federal court jurisdiction. 5 Such a construction would clearly violate the Constitution, as Congress would be stripped of its Article III powers to grant or withhold such jurisdiction. See, Kline v. Burke Constr. Co., 260 U.S. 5 While general federal question jurisdiction (28 U.S.C. 1331) does achieve this effect in most cases, Congress retains the power to make a specific grant to provide for a particular law to operate contra to 1331 (or even repeal 1331 in part, or in whole). See, e.g., ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513, 519 (3d Cir. 1998) ( Congress' intent to preclude consumer suits under [the] TCPA in federal court trumps the general grant of federal question jurisdiction in ); Connors v. Amax Coal Co., Inc., 858 F.2d 1226, 1230 (7th Cir. 1988) (concluding that, even if plaintiff's claims arose under ERISA, federal district court jurisdiction under the general provision of 1331 could not rebut specific provisions of the Longshore and Harbor Workers' Compensation Act and Black Lung Benefits Act conferring exclusive jurisdiction in the federal courts of appeals); see also 47 U.S.C. 402(b) (Supp. IV 1998) (placing jurisdiction for suits challenging certain classes of FCC decisions in the Court of Appeals for the District of Columbia Circuit). Similarly, Congress has rebutted general removal provisions of 28 U.S.C in specific acts. See, e.g., 15 U.S.C. 77v(a) (Supp. IV 1998) (Securities Act of 1933) ( No case arising under this subchapter and brought in any State court of competent jurisdiction shall be removed to any court of the United States. ); see also 28 U.S.C (Supp. IV 1998) (barring removal of several types of suits that otherwise could have been removed to federal court, including suits against railroads under FELA and civil actions under Section of the Violence Against Women Act of 1994). 16

26 226, 234 (1922) ( [J]urisdiction having been conferred may, at the will of Congress, be taken away in whole or in part.... ) II. CAN CONGRESS PERMIT A STATE TO AVOID THE SUPREMACY CLAUSE MANDATE THAT STATE COURTS REMAIN OPEN TO FEDERAL CAUSES OF ACTION, AND IF SO, HOW MUST SUCH AN INTENT BE MANIFEST? The Supremacy Clause mandate imposes on state courts a duty to enforce federal law and accept the jurisdiction of federal claims where Congress has not acted to divest those state courts of their original jurisdiction. It is not disputable that Congress has the power to divest state courts of that jurisdiction by declaring that any particular cause of action shall have exclusive jurisdiction in federal courts. Kline v. Burke Constr. Co., 260 U.S. 226, 234 (1922). Presumptively, since Congress has the power to revoke state court jurisdiction for a federal claim, Congress has the power to give a state the power to reject jurisdiction of that claim. Writing a statute so that states can decline jurisdiction of their courts (a power they otherwise do not have under Testa v. Katt and its progeny) is no different in the end result than writing the statute divesting the state court of jurisdiction outright. Congress power to set jurisdiction for federal claims is plenary under Article III. So it is not a question of whether Congress can do it, but only a question of intent. 17

27 A. The Clear Statement Rule. Because any statute affecting the original jurisdiction of state courts to hear federal claims affects a delicate federalism balance, the courts have developed a specific test to ensure that a court s interpretation of any provision altering that jurisdiction is really what Congress intended. In such matters the courts require that Congress speak directly with an explicit statutory directive known as the clear statement rule. Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, (1981) (state court jurisdiction for federal claims can only be avoided by an explicit statutory directive, by unmistakable implication from legislative history, or by a clear incompatibility between state-court jurisdiction and federal interests. ) 6 [I]t is incumbent upon the federal courts to be certain of Congress' intent before finding that federal law overrides this [federal/state] balance. Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has, in fact, faced, and intended to bring into issue, the critical 6 Other federal-state balances are also subjected to the clear statement test such as waivers of sovereign immunity (United States v. Nordic Village, Inc., 503 U.S. 30, (1992)); allowing state taxation or regulation of federal instrumentalities that are otherwise exempt (United States v. New Mexico, 455 U.S. 720, 742 (1982)); allowing state courts to have jurisdiction over Indian affairs (Bryan v. Itasca County, 426 U.S. 373 (1976)). 18

28 matters involved in the judicial decision. United States v. Bass, 404 U.S. 336, 349 (1971); Will v. Michigan Dep't of State Police, 491 U.S. 58, 65 (1989). In each of those cases, we confronted a statute susceptible of two plausible interpretations, one of which would have altered the existing balance of federal and state powers. We concluded that, absent a clear indication of Congress' intent to change the balance, the proper course was to adopt a construction which maintains the existing balance. Salinas v. United States, 522 U.S. 52, 59 (1997). [W]hen a particular interpretation of a statute invokes the outer limits of Congress' power, we expect a clear indication that Congress intended that result. INS v. St. Cyr, 121 S.Ct (2001) citing Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988). The concept is simple - when the Court is faced with a statute that may alter constitutional balances, the Court asks itself are we sure this is what Congress intended? The Court will not construe a statute to alter any delicate constitutional balances without being certain that was what Congress clearly wanted to do. As Justice O'Connor noted, this requirement is not a mere canon of statutory interpretation. Instead, it derives from the Constitution itself. Hilton v. South Carolina Pub. Rys. Comm'n, 502 U.S. 197, 209 (1991) (O'Connor, Scalia, J.J., dissenting). 19

29 This is especially appropriate in consideration of any optin or opt-out argument, because the duty of state courts to fulfil their role to hear federal claims is a constitutional mandate of the Supremacy Clause. Put another way, because the duty that state courts hear federal claims is a constitutional duty, a statute which relieves a state court of that duty is a sensitive matter as it alters a constitutional balance. If a court were to interpret an ambiguous federal statute to permit that duty to be avoided when Congress did not intend such an outcome, that court would be sanctioning an unconstitutional shirking of its constitutional duty in direct violation of Testa v. Katt. The clear statement rule is therefore always invoked when the Court is faced with a federal statute that purports to allow state action that absent congressional approval would be unconstitutional. An unambiguous indication of congressional intent is required before a federal statute will be read to authorize otherwise invalid state legislation,... Maine v. Taylor, 477 U.S. 131, 139 (1986). When it is argued that a federal statute permits a state to decline jurisdiction by withholding consent of the jurisdiction of a state s courts to hear those claims, the necessity of a clear statement is on Congress to clearly state opt-in is required or opt-out permitted. In the case at bar, Congress has not made such a clear statement. 20

30 A court must not venture into such a constitutional thicket unless Congress has compelled that journey. The example of Maine v. Taylor is instructive. That case involved the Commerce Clause s restriction on states regulation of conduct involving interstate commerce. Maine had a law that prohibited the importation of live baitfish. 7 Such a restriction is in facial conflict with the Commerce Clause. Maine argued that the 1981 Amendments of the Lacey Act had given states the right to regulate wildlife importation in what would otherwise be a violation of the Commerce Clause. The Court rejected this argument, because the statute was not unmistakably clear that such an outcome was intended: The District Court and the Court of Appeals both reasoned correctly that, since Maine's import ban discriminates on its face against interstate trade, it should be subject to the strict requirements of Hughes v. Oklahoma, notwithstanding Maine's argument that those requirements were waived by the Lacey Act Amendments of It is well established that Congress may authorize the States to engage in regulation that the Commerce Clause would otherwise forbid. See, e. g., Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 769 (1945). But because of the important role the Commerce Clause plays in protecting the free flow of interstate trade, this Court has exempted state statutes from the implied limitations of the Clause only when the congressional direction to do so has been "unmistakably clear." South-Central Timber Development, Inc. v. Wunnicke, 467 U.S. 82, 91 (1984). The 1981 Amendments of the Lacey Act clearly provide for federal enforcement of valid 7 Me. Rev. Stat. Ann., Tit. 12, 7613 (1981). 21

31 state and foreign wildlife laws, but Maine identifies nothing in the text or legislative history of the Amendments that suggests Congress wished to validate state laws that would be unconstitutional without federal approval. 477 U.S. 131, The precisely analogous situation is presented here. The United States Supreme Court has held time and time again that states can not close their courts to hearing federal claims. Testa v. Katt, 330 U.S. 386 (1947). Just as Congress can permit states to engage in acts that would otherwise be a violation of the Commerce Clause absent that consent, Congress can permit states to engage in acts that would otherwise violate the Supremacy Clause as announced in Testa. But like lifting the mandate of the Commerce Clause, Congress must be explicit when lifting the mandate of the Supremacy Clause. B. What is a clear statement sufficient to alter federal-state balance? A clear statement is one which is unambiguous, and not reasonably subject to an alternative interpretation. Compare United States v. Bass, 404 U.S. 336, (1971) (relying on Congress' failure to make a clear statement of its intention to alter the federal-state balance to construe an ambiguous firearm possession statute to apply only to firearms affecting commerce), with United States v. Lopez, 514 U.S. 549, (1995) (refusing to apply Bass to read a similar limitation into an unambiguous firearm-possession 22

32 statute). As a matter of law and logic, the differing opinions of the learned courts of the various states to have addressed this question demonstrate conclusively that there is ambiguity that leads to different interpretations. C. The TCPA does not satisfy the Clear Statement rule so as to permit a state to consider its state courts closed absent opt-in legislation. The existence of the case at bar and the multitude of other state courts which have interpreted the statute differently from the court below, demonstrates that the language in the TCPA is far from satisfying the clear statement rule. Indeed the overwhelming weight of authority has read the statute contrary to the holding of the court below. The language at issue simply can not satisfy the high standard required to evince clear congressional intent to relieve a state court of its constitutional duties under the Supremacy Clause. Even assuming arguendo that Congress did intend to allow states to refuse jurisdiction by not consenting, Congress has made only an ambiguous statement to communicate that intent. This ambiguity itself, without more, is dispositive of the issue at bar and moots further inquiry. D. Construction by sister state courts After exclusive state court jurisdiction for the TCPA was unanimously established by the federal courts, TCPA litigation became the sole venue of the states courts. State appellate courts have rejected the interpretation of 23

33 the TCPA adopted by the court below. This is especially important in construing a federal statute, since uniform application of federal law is an important consideration. [W]e appreciate the legitimate concerns that inconsistent interpretations may create for telephone subscribers and solicitors alike. Accordingly, in an effort to seek consistency, we shall give substantial weight to persuasive interpretations of the TCPA by both the FCC and our sister states. Worsham v. Nationwide Ins., 772 A.2d 868, 874 (Md. App. 2001). 1. Florida (Condon v. Office Depot) In August of this year, the Florida Court of Appeals concluded that enforcement of TCPA claims is not optional for state. Condon v. Office Depot, Inc., -- So.2d --, 2003 TCPA Rep. 1210, 2003 WL (Fla. App. Aug. 22, 2003): We join the majority view and conclude that the State is not required to adopt enabling legislation before a state court of competent jurisdiction can entertain this federal law claim. Rather, we interpret the language "if otherwise permitted" to acknowledge the principle that states have the right to structure their own court systems and that state courts are not obligated to change their procedural rules or to create courts to accommodate TCPA claims. * * * The ambiguous language "if otherwise permitted" does not explicitly direct the enactment of enabling state legislation. Nor does the legislative history support such a requirement. Id. at *4-5. The court went on to apply the clear statement 24

34 rule, holding that we would require an explicit mandate from Congress that the private cause of action it created was conditioned on prior state approval. Id. at *6. 2. Alabama (Lary v. Flasch) The most recent decision is from Alabama in Lary v. Flasch Bus. Consulting, Inc., -- So.2d --, 2003 TCPA Rep (Ala. App. Oct. 31, 2003). That court rejected the opt-in the argument that states must pass enabling legislation before TCPA claims can brought in state courts. Id. at * California (Kaufman v. ACS Systems, Inc.) In one of the most vigorously litigated TCPA cases in the country, the California Court of Appeals rejected the opt-in argument in Kaufman v. ACS20 Systems, Inc., 2 Cal.Rptr.3d 296, 2003 TCPA Rep (Cal. App. 2003) cert denied -- Cal. 4th -- (Oct. 15, 2003). It also agreed with the analysis of the Autoflex decision as having cited several of the federal court TCPA decisions in error and held in a short and poorly reasoned opinion that Congress intended the states to pass legislation or promulgate court rules consenting to state court actions based on the TCPA. Id. at * Missouri (Reynolds v. Diamond Foods) The Missouri Supreme Court in Reynolds v. Diamond Foods and Poultry, 79 S.W.3d 907 (Mo. 2002) (en banc) affirmed the unanimous panel of the court of appeals, and held in no 25

35 uncertain terms that no state enabling legislation was necessary for consumers to bring an action in state courts of general jurisdiction under the TCPA. Id. [W]e find the clause in 47 U.S.C. Section 227, "if otherwise permitted by the laws or rules of court of a State," does not require affirmative state enabling legislation before a consumer can file a private right of action in state court under the TCPA. Further, the particulars of this case, including the parties, amount in controversy, and relief sought clearly fit the jurisdiction of the circuit courts as described by the Missouri Constitution. Accordingly, we hold that a private right of action may be brought in state courts of Missouri pursuant to the TCPA. 5. New York (Kaplan v. Democrat and Chronicle) The first state appellate court to decide the question was in Kaplan v. Democrat and Chronicle, 698 N.Y.S.2d 799 (N.Y.App. 1999). The four justice appellate panel cited Int l Science, and held unanimously that there is no requirement for a state to act to authorize TCPA suits in its state courts. Id. at New York (Schulman v. Chase Manhattan Bank) On the heals of Kaplan, a separate appellate panel in New York reviewed the same question in Schulman v. Chase Manhattan Bank, 710 N.Y.S.2d 368 (N.Y.App. 2000). It not only followed the holding of Kaplan, it expanded on it in an extensive and unanimous opinion. The five justice panel held that a private right of action may be brought in state court pursuant to the TCPA without state enabling 26

36 legislation. Id. at Georgia (Nicholson v. Hooters) One of the most extensively litigated junk fax cases under the TCPA began in Georgia state court in 1995, and followed a route through removal to federal court, appeal to the Eleventh Circuit, remand back to state court, interlocutory appeal to the Georgia Court of Appeals, and finally a recent jury verdict in favor of the plaintiff class for $12 million. The opt-in argument was rejected in extensive written opinions by both the trial court and the Georgia Court of appeals sitting en banc. Nicholson v. Hooters of Augusta, 537 S.E.2d 468 (Ga. App. 2000) (en banc). 8. New Jersey (Zelma v. Market U.S.A.) A pair of consolidated cases brought in New Jersey resulted in the decision in Zelma v. Market U.S.A., 778 A.2d 591 (N.J.Super.A.D. 2001), from that state s Court of Appeals on the opt-in argument. Rejecting the notion that states must pass enabling legislation to affirmatively permit such suits, the court held: We hold that the Congressional grant of exclusive jurisdiction in the state courts to enforce the private right of action created by the TCPA does not require an affirmative act by the Legislature or the adoption of rule by the Supreme Court in order for the Superior Court to exercise subject-matter jurisdiction over the TCPA claims filed by plaintiff. Id. at

37 9. Maryland (Worsham v. Nationwide Ins.) The Maryland Court of Appeals, in Worsham v. Nationwide Ins., 772 A.2d 868 (Md. App. 2001), also followed the reasoning of each of the prior cases. That court cited Kaplan and held [i]n the absence of a [s]tate statute declining to exercise the jurisdiction authorized by the [TCPA], a [s]tate court has jurisdiction over TCPA claims. Id, at Additional State trial courts In addition to the state appellate decision, state trial courts have issued a number of persuasive and well analyzed opinions addressing the opt-in question. a. New Jersey (Zelma v. Total Remodeling, Inc.) In Zelma v. Total Remodeling, Inc., 756 A.2d 1091 (Super. Ct. N.J. 2000) that court needed little more than common sense and a review of ample Supreme Court precedent and that state s constitution to resolve the issue: The court finds that the common-sense meaning of the language if otherwise permitted by the laws or rules of Court of a State manifests a Congressional intent that does not condition state court jurisdiction over private enforcement of TCPA claims on an affirmative legislative act creating such jurisdiction, where the state already has the ability to hear such cases. The court finds that the Superior Courts of New Jersey 8 The decision in R.A. Ponte is not in conflict, as the R.A. Ponte decision regarded the application of a different Maryland statute, which the court concluded was an attempt by the Maryland legislature to opt-out of the TCPA. Both decisions reject the opt-in argument that is at issue in the instant case. 28

38 are already vested by Article 6, 3, paragraph 3 of the New Jersey Constitution and by the United States Constitution with the jurisdiction to hear these cases and that no special legislation is required to enable them to do so. Id. at b. Pennsylvania (Aronson v. Fax.com, Inc.) In Aronson v. Fax.com, Inc., 51 Pa. D. & C. 4th 421 (Pa. C.P. 2001), that court undertook an extensive analysis, including the historical and constitutional role of state courts in the federal jurisprudence. The court cited many of the same cases recited above, and held that no affirmative state enabling legislation was required for state courts to hear TCPA claims. It demonstrated the fallacy of such a construction: If the TCPA had stated that a person who received an unsolicited advertisement via a facsimile machine in violation of the TCPA may bring a private action in any federal district court or in an appropriate court of a state, if otherwise permitted by the laws or rules of court of the state, I suggest that no one would be contending that this legislation required state recognition of the cause of action before state courts could exercise jurisdiction. It would, instead, be read as authorizing states to exercise concurrent jurisdiction where there is a forum to resolve such claims under the laws and rules of court of the state. There is no justification for construing the legislation in a different fashion because Congress did not confer jurisdiction on the federal courts to hear private actions. Id. at 429. E. Massachusetts courts are open to common law suits against junk faxers. 29