voters.jpgIt was fortunate for Ohio Secretary of State Jennifer Brunner that the two voters who brought a mandamus action to compel her and the Board of Elections to comply with their “clear legal duty under Ohio statutes” regarding the counting of provisional votes cast in the 2008 Franklin County elections filed their case when they did.  Had the action been filed in December 2008, a mere one month later, the Secretary likely would have been forced to pay attorneys’ fees for improperly trying to remove the case to federal court.   

In State of Ohio ex rel. Skaggs v. Brunner, 09-4282 (PDF), the relators expressly disclaimed that their action was based on federal law, stating in their Complaint that “[n]o federal claims are asserted.”  Despite this disclaimer, the Secretary removed, arguing that the claims raised issues of federal law.  Although the district court denied remand and granted summary judgment in favor of the Secretary, the Sixth Circuit vacated the District Court’s decision after concluding it lacked subject matter jurisdiction.  Relators moved for attorneys fees for the improper removal, which the District Court denied.

Under 28 U.S.C. § 1447(c), “An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of removal.” This provision gives district courts discretion to grant fees to the opposing party—they “may” grant fees—if “the removing party lacked an objectively reasonable basis for seeking removal.” Id. at 3.

The Sixth Circuit noted that while “it is difficult to identify an objectively reasonable basis for the Secretary’s removal,” the abuse of discretion standard that must be applied “makes all the difference.”  The Court reviewed several points favoring the Secretary’s argument that the decision to remove was “objectively reasonable,” including that the District Court judge not only thought the removal was objectively reasonable, but he also denied the motion to remand the case to state court; that it was not alleged that the Secretary removed for purposes of delay or to increase the relators’ costs; and that the delay resulting from the removal was only two weeks.  Id. at 6-7.  Bound by the abuse of discretion standard, the Sixth Circuit affirmed the District Court’s denial of attorneys’ fees.

One point bears special mention:  The Court noted that had the action been filed one month later, the Sixth Circuit’s decision in Warthman v. Genoa Township Board of Trustees, 549 F.3d 1055, 1063 (6h Cir. 2008) (PDF) would have required an award of attorneys’ fees to the relator.  In that case, the Court held that a complaint containing a federal-law disclaimer (like this one) deprives the defendant of an objectively reasonable basis for removal.