On September 6, the defendants in WVCDL’s lawsuit against the City of Martinsburg filed an answer to WVCDL’s amended complaint. Unfortunately, just a few hours later, the court issued an Order of Abstention (the order was amended a week later to correct a clerical error), directing WVCDL to file a separate lawsuit in state court to litigate the questions of state law separately from the federal case and return to federal court if we fail to overturn the city building gun ban ordinance in the separate case.
In its Order of Abstention, the Court exhibited a breathtaking disregard for the U.S. Supreme Court’s 1997 decision in Arizonans for Official English v. Arizona, in which the Supreme Court clearly directed the federal courts to send certified questions of law to a state supreme court instead of forcing the parties to engage in redundant litigation in state court in most cases. Following this decision, the 4th Circuit (which includes West Virginia) and 7 other circuits decided cases in which they followed the Supreme Court’s ruling in the Arizona case.
In response to WVCDL’s arguments that the Arizona case required the court to not abstain and instead certify questions of law to the West Virginia Supreme Court, the court cited two cases where other courts had abstained due to the same legal issues being litigated in separate lawsuits already pending in the state court system. There are no parallel cases present in West Virginia. One of these cases comes from a circuit that is not fully complying with the Supreme Court’s direction in the Arizona case, which cannot be followed here because our circuit has taken a different view. The second case comes from a circuit that has certified questions in other cases where there is not already a parallel lawsuit pending in state court. The court then cited a third case, a 25-year-old New York case that has never been cited by any other court, to argue that the slightest possibility of any factual dispute requires the case to be sent to state court.
In response to the court’s Order of Abstention, WVCDL has filed motions to seek reconsideration of the Order of Abstention, certify questions of law to the West Virginia Supreme Court, strike certain frivolous defenses from the Defendants’ answer, issue a preliminary injunction, and grant WVCDL summary judgment on 3 of its 4 state law claims where the facts are already clearly settled.
We do not have a timetable for rulings on these motions. We hope the court will carefully consider these motions and reverse its Order of Abstention. If the court denies WVCDL’s motion to reconsider, WVCDL may either file a separate lawsuit in state court or appeal the abstention order to the 4th Circuit. Either option will likely add nearly a full year to the amount of time that will be required for WVCDL to obtain justice and force the City of Martinsburg to comply with state law, the state constitution, and the U.S. Constitution. This is precisely the sort of delay the U.S. Supreme Court intended to avoid with its clear guidance in the Arizona case for federal courts to certify questions of law to a state supreme court instead of abstaining in most cases.
