UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Howard L. Wilson

v. Civil No. 04-337-JD

Opinion No. 2005 DNH 011

New Hampshire Supreme Court

O R D E R

Howard L. Wilson, proceeding pro se, filed suit against the

New Hampshire Supreme Court, contending that the court’s

decision, In re Petition of Below, 151 N.H. 135 (2004), which

found that the state legislature had the authority to amend the

court’s redistricting plan, violates the federal prohibition

against ex post facto laws along with provisions of the New

Hampshire Constitution. Wilson seeks $2000.00 in compensation

for money he spent to run as a candidate in a district that was

subject to the legislature’s redistricting.

Ordinarily, Wilson’s pro se complaint would have been

reviewed for subject matter jurisdiction by the magistrate judge

before any further proceedings in the case. Wilson, however,

mailed copies of his complaint to New Hampshire Senator Clifton

Below, and to four of the justices of the New Hampshire Supreme

Court and one former justice before preliminary review was

completed. In response, the New Hampshire Supreme Court,

represented by the Office of the Attorney General, and Clifton

Case 1:04-cv-00337-JD Document 8 Filed 01/24/05 Page 1 of 5
Clifton Below received a copy of the complaint from Wilson 1

and has filed a motion to dismiss. Although Wilson seeks damages

from “the settlement partners” of the challenged decision, Below

is not named as a defendant in the complaint and will not be

treated as such. 

2

Below, proceeding pro se, have filed motions to dismiss. The

question of subject matter jurisdiction will be addressed first.

I. Jurisdiction

As the party asserting subject matter jurisdiction, Wilson

bears the burden of showing that it exists. Pejepscot Indus.

Park, Inc. v. Me. Cent. Ry. Co., 215 F.3d 195, 200-01 (1st Cir.

2000). To carry his burden, Wilson must show that either his

claim raises a federal question, 28 U.S.C. § 1331, or that

diversity of citizenship exists, 28 U.S.C. § 1332. Since Wilson

alleges that his residence is in New Hampshire and that he

intended to run for political office here, his citizenship is not

different from the New Hampshire Supreme Court, nor has he

alleged damages within the jurisdictional amount. Reading 1

Wilson’s pro se complaint liberally to allege that the decision

in In re Petition of Below, violates the prohibition against ex

post facto laws in the United States Constitution, he has alleged

a federal question under § 1331. See, e.g., Smith v. Doe, 538

U.S. 84, 91 (2002) (considering ex post facto challenge pursuant

to § 1983). 

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In his pro se motion to dismiss, Below explains that the In 2

re Petition of Below decision would not violate the prohibition

against ex post facto laws by providing the chronology of the

court’s redistricting decisions, the legislature’s redistricting

enactments, and the election processes. 

3

II. Motion to Dismiss

The New Hampshire Supreme Court first contends that because

its decision, In re Petition of Below, did not address a question

of federal law, no federal question is raised in Wilson’s

complaint. As is discussed above, because Wilson challenges the

decision based on the Ex Post Facto Clause of the federal

constitution, he raises a federal question for purposes of

subject matter jurisdiction. § 1331.

The supreme court also argues that its decision does not

violate the prohibition against ex post facto laws. The

Constitution’s Ex Post Facto Clause, Art. 1, § 10, cl.1,

“prohibit[s] . . . the States from enacting laws with certain

retroactive effects.” Stogner v. California, 539 U.S. 607, 610 2

(2003); see also Miller v. Florida, 482 U.S. 423, 429-30 (1987). 

Specifically, the Clause prohibits state legislatures from

passing laws “which make innocent acts criminal, alter the nature

of the offense, or increase the punishment.” Collins v.

Youngblood, 497 U.S. 37, 46 (1990); accord Stogner, 539 U.S. at

611; see also Sheehan v. City of Gloucester, 321 F.3d 21, 25 (1st

Cir. 2003) (“It is well settled that the prohibitions against ex

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post facto laws apply only when the statute is criminal or is

punitive in nature.”). As such, the Clause “‘is a limitation

upon the powers of the Legislature, and does not of its own force

apply to the Judicial Branch of government.’” Rogers v.

Tennessee, 532 U.S. 451, 456 (2001) (quoting Marks v. United

States, 430 U.S. 188, 191 (1977); Evans v. Ray, 390 F.3d 1247,

1250-52 (10th Cir. 2004); Lemerick v. Wall, 2004 WL 235435, at *2

(D.R.I. Jan. 24, 2004). Therefore, the Ex Post Facto Clause does

not apply to the supreme court’s decision.

Wilson’s remaining claims are based on provisions of the New

Hampshire Constitution and, therefore, arise from state law

rather than federal law. When, as here, the court dismisses the

federal claim that was the basis of original jurisdiction before

trial, the court may in its discretion decline to exercise

supplemental jurisdiction over the state law claims. 28 U.S.C. §

1367(c). That is appropriate in this case. See Cannarozzi v.

Fiumara, 371 F.3d 1, 6 (1st Cir. 2004). Therefore, the court

declines supplemental jurisdiction over Wilson’s state law

claims, which are dismissed without prejudice.

Conclusion

For the foregoing reasons, the defendant’s motion to dismiss

(document no. 3) is granted as to the plaintiff’s federal claim

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based on the Ex Post Facto Clause. The motion to dismiss filed

by Senator Clifton Below (document no. 6) is terminated. The

court declines supplemental jurisdiction as to the plaintiff’s

remaining claims, based on state law, and those claims are

dismissed without prejudice.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

January 24, 2005

cc: Clifton Below, pro se

Daniel J. Mullen, Esquire

Howard L. Wilson, pro se

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