The opinion of the court was delivered by: Wolf, D.J.
In a companion February 7, 2011 Memorandum and Order, this court has denied the motion of the plaintiffs, Charles "Chuck" Turner and fifteen voters of the District 7 he represented, to enjoin the February 15, 2011 special preliminary municipal election and the March 15, 2011 special municipal election to fill Turner's now admittedly vacant seat on the Boston City Council (the "Council"). The issue, discussed in the January 14, 2011 Memorandum and Order, remains concerning whether or not this federal court should abstain or certify certain questions of state law for decision by the Supreme Judicial Court of the Commonwealth of Massachusetts because authoritative decisions on those issues may obviate the need to decide the federal constitutional questions in this case. See Railway Commission v. Pullman Co., 312 U.S. 496 (1941). The parties have responded to the January 14, 2011 Memorandum and Order. They oppose either abstention or certification. Nevertheless, for the reasons described in this Memorandum, the court is now certifying two questions to the Supreme Judicial Court and staying this case until a response to those questions is received.
In 2008, Turner was charged with committing extortion in violation of 18 U.S.C. §1951, and other federal crimes. On January 25, 2009, the Council, acting pursuant to authority asserted to exist under the Charter of the City of Boston, adopted a new Rule 40A, which permits an elected Councillor to be removed, by a vote of two-thirds of the members of the Council, for "conduct unbecoming of a member," including conviction of a felony.*fn1 Turner was convicted of several felonies on October 29, 2010. On December 1, 2010, the Council, by a vote of eleven to one, decided to remove Turner from office effective December 3, 2010. The Council cited the Charter of the City of Boston, see Acts of 1951 c.376, §17, and Rule 40A as the authority for its action.
On December 15, 2010, to fill Turner's seat, the Council scheduled a special preliminary municipal election for February 15, 2011 and a special final municipal election for March 15, 2011.
On December 30, 2010, Turner and fifteen voters from District 7, which he was elected to represent, filed the instant action, seeking declaratory and injunctive relief. Turner also seeks damages. Plaintiffs allege that the Council exceeded its authority under state law in removing Turner from office. They assert that as a result of this violation of state law, they have been deprived of certain rights protected by the Constitution of the United States. See Complaint, ¶¶27, 31. More specifically, Turner contends that Rule 40A is a criminal sanction. Therefore, he asserts that, as applied to him, Rule 40A violates the Ex Post Facto Clause of the Constitution, U.S. Const. art. I, §10, and his rights under the First and Fourteenth Amendments to the United States Constitution. See Complaint, ¶27. The voter plaintiffs contend that the Council's violation of state law in expelling Turner has disenfranchised them and, therefore, violated their rights under the First and Fourteenth Amendments to the United States Constitution. See id. ¶2.
On January 10, 2011, plaintiffs filed a motion for a preliminary injunction or, in the alternative, for summary judgment. They requested that this federal court exercise its equitable power to enjoin the February 15, 2011 special preliminary municipal election and the March 15, 2011 special municipal election. They also asked the court to restore Turner to his position on the Council. Defendants submitted an opposition to this motion.
On January 25, 2011, Turner was sentenced to serve three years in a federal prison. As the parties agree, pursuant to M.G.L. c. 279, §30, that sentence would automatically remove Turner as a member of the Council if he still held that office on January 25, 2011.*fn2 Therefore, there is now a vacancy in that office whether or not Turner was lawfully removed by vote of the Council on December 1, 2010. For the reasons described in the companion to this Memorandum and Order, plaintiffs' motion to enjoin the special preliminary municipal election scheduled for February 15, 2011, and the special municipal election scheduled for March 15, 2011 has been denied. See Feb. 7, 2011 Memorandum and Order.
However, pursuant to 42 U.S.C. §1983, Turner still seeks damages, including back pay, for the alleged violation of his rights under the United States Constitution that resulted from his expulsion from the Council, which he contends violated state law. See Complaint at 7. Therefore, this case is not moot. Accordingly, it remains necessary that the court decide whether or not to abstain or to certify one or more questions to the Supreme Judicial Court.
The parties acknowledge that plaintiffs' federal claims depend entirely on their contention that the removal of Turner from office exceeded the power granted to the Council by the laws of the Commonwealth of Massachusetts. For example, plaintiffs state:
This case is about the unlawful votes of the Boston City Council to remove a duly elected member from the city council and the vote calling for a special election to fill his seat . . . . Because the current electoral process is seriously flawed due to votes taken by the council that were ultra vires and based on invalid law, the process must be stopped.
Pls.' Mem. of Law in Supp. of Their Req. for Inj. Relief, a Declaratory J., or in the Alternative for Summ. J. at 2. Similarly, in contending that federal jurisdiction does not exist in this case, defendants state:
As demonstrated by the twenty-seven out of a total of twenty-nine pages of argument devoted to the mechanics by which Rule 40A was enacted, Plaintiffs' divergence with the Defendants' interpretation of the City Charter is the driving force of this cause of action. That issue however, is purely one of state law . . . .
Defs.' Mem. of Law in Supp. of Their Opp'n to the Pls.' Req. for Inj. Relief, Declaratory J., or in the Alternative for Summ. J. and Defs.' Cross-Mot. for Summ. J. at 20.
As the parties recognize, if the Council had the authority under state law to promulgate Rule 40A and employ it to remove Turner, and if the Rule is civil rather than criminal in nature, no violation of the Constitution has occurred. Therefore, an authoritative ruling on these uncertain issues may obviate the need to decide the federal, constitutional questions presented. Accordingly, this is a classic case for Pullman abstention or certification of the potentially dispositive state law questions to the Supreme Judicial Court. See ...