KENNETH E. DAVIS; JAMES S. ETTELSON; ALAN C. KESSLER; FRANK LUTZ; JOSEPH M. MANKO; ORA R. PIERCE; JAMES J. PRENDERGAST; BRIAN D. ROSENTHAL; DAVID A. SONENSHEIN; HOWARD L. WEST; GLORIA P. WOLEK; PHYLLIS L. ZEMBLE v. RICHARD GLANTON, Individually and as a Trustee of The Barnes Foundation; NIARA SUDARKASA, Individually and as a Trustee of The Barnes Foundation; SHIRLEY A. JACKSON, Individually and as a Trustee of The Barnes Foundation; CHARLES FRANK, Individually and as a Trustee of the Barnes Foundation
NO. 96-1299
IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
March 3, 1997
Paper 52
BECKER, ROTH, Circuit Judges, and BARRY, District Judge.
Richard Glanton, Niara Sudarkasa and Shirley A. Jackson, Appellants
On Appeal From the United States District Court For the Eastern District of Pennsylvania (D.C. Civ. No. 96-cv-01800)
Argued: January 30, 1997
ROBERT J. SUGARMAN, ESQUIRE (ARGUED)
Sugarman & Associates
7th Floor, Robert Morris Building
100 North 17th Street
Philadelphia, PA 19103
Attorneys for Appellants Richard Glanton and Niara Sudarkas
HARDY WILLIAMS, ESQUIRE
3801 Market Street, Suite 204
Attorney for Appellant Shirley Jackson
PAUL R. ROSEN, ESQUIRE (ARGUED)
LARRY R. WOOD, JR., ESQUIRE
Spector, Gadon & Rosen, P.C.
1700 Market Street - 29th Floor
Philadelphia, PA 19103
Attorneys for Appellees: Kenneth E. Davis, James S. Ettelson, Alan C. Kessler, Frank Lutz, Joseph M. Manko, Ora R. Pierce, James J. Prendergast, Brian D. Rosenthal, David A. Sonenshein, Howard L. West, Gloria P. Wolek, Phyllis L. Zemble
OPINION OF THE COURT
BECKER, Circuit Judge.
This is an appeal by certain trustees of the Barnes Foundation, who are also African-American citizens. It requires us to determine whether a state court defamation action filed against them by certain commissioners of Lower Merion Township, alleging that the Trustees had falsely accused the Commissioners of racist official conduct, is removable to federal district court pursuant to the civil rights removal statute,
I. Facts & Procedural History
The Barnes Foundation is a non-profit Pennsylvania corporation located on Latches Lane, Lower Merion Township, Montgomery County, Pennsylvania. Its history is well known, and for present purposes we need recount only that the late Dr. Albert C. Barnes created the Barnes Foundation, by Indenture and Agreement dated December 6, 1922, and that the Indenture provides that, following the expiration of the terms of the Foundation‘s Trustees in place at Barnes’ death, four of the five Foundation Trustees are to be nominated by Lincoln University, a historically African-American institution, with a fifth trustee to be named by Girard Bank (now Mellon Bank). By 1990, with the death or rеsignation of a number of former trustees, the Foundation‘s Board of Trustees became predominantly African-American. At the time of the acts complained of, Richard Glanton, Niara Sudarkasa, Shirley Jackson, and Charles Frank (defendants in the state defamation action) were trustees, and all except for Mr. Frank are African-American and appellants here.1
For present purposes, the material elements of this Lower Merion Township-Barnes Foundation dispute began on January 18, 1996, when the Foundation filed an action under
The gravamen of the Foundation‘s federal civil rights action is that this adverse treatment was motivated by racial prejudice engendered by the fact that (1) the majority of the Foundation‘s Trustees are African-American; (2) Glanton, the President of the Board, is African-American; and (3) the Foundation is controlled by a historically African-American university. The complaint alleges that the Township and the Commissioners violated the
Foundation‘s constitutional rights, and that they should be enjoined from continuing such violations.
On March 4, 1996, the Commissioners filed a state court defamation action in the Court of Common Pleas of Montgomery County against Glanton and the other members of the Foundation‘s Board. The state court defamation action is based upon two sets of allegedly defamatory statements: (1) certain statements attributed to Glanton in a Philadelphia Inquirer article dated November 27, 1995, that the Commissioners had engaged in “thinly disguised racism,” and that “[t]here is no way that you cannot see racism in the way [the Commissioners] are treating the Foundation“; and (2) statemеnts made in the Barnes Foundation‘s complaint in the federal civil rights action.
On March 7, 1996, the Trustees filed a Joint Notice of Removal, claiming that federal removal jurisdiction existed pursuant to
unconstitutional race discrimination if the Commissioners are permitted to proceed in state court.
The Commissioners quickly filed a motion to remand, contesting all three grounds for removal. The district court granted the Commissioners’ motion, determining that removal was improper on all of the grounds asserted by the Trustees. Addressing the requirements of
Finally, the district court found that the state court defamation action was not removable under
Our power to review a remand order is defined by
An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise.
Section 1447(d) thus expressly authorizes appellate review of remand orders in cases that were originally removed to federal court under
III. Removal Under 28 U.S.C. § 1443
A. Introduction: State of Georgia v. Rachel and City of Greenwood v. Peacock
The Civil Rights Removal Statute,
[a]gainst any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof.
While the language of this section is opaque, the jurisprudence has made clear that Congress has crafted only a narrow exception to the rule that a state court action may be removed to a federal district court only if federal jurisdiction is evident on the face of the plaintiff‘s well-pleaded complaint (which, of course, it is not in this state defamation action).
In State of Georgia v. Rachel, 384 U.S. 780 (1966), the Supreme Court articulated the precise circumstances required to sustain removal under
conduct for which they were being prosecuted. The arrested individuals sought to remove the state court prosecutions to federal court on the basis of
The Court then addressed the second statutory requirement -- that the state court defendant be “denied or cannot enforce” his or her rights in state court. The Court noted that, in order for pre-trial removal to be sustained, denial of rights traditionally had
In creating a narrow exception to the traditional “denied or cannot enforce” interpretation, the Rachel Court recognized that § 203 of the Civil Rights Act of 1964 specifically prohibited any “punishment or attempts to punish” any person for exercising
rights secured by other sections of the Act. Id. In fact, the Court noted that in Hamm v. City of Rock Hill, 379 U.S. 306, 311 (1964), it had interpreted § 203 of thе Civil Rights Act of 1964 to prohibit “on its face ... prosecution of any person for seeking service in a covered establishment, because of his race or color.” Rachel, 384 U.S. at 785. Based on the prohibition against prosecution contained in § 203, the Court concluded that “nonforcible attempts to gain admittance to or remain in establishments covered by the Act, are immunized from prosecution.” Id. Accordingly, the Court opined that “in the narrow circumstances of this case, any proceedings in the courts of the States will constitute a deniаl of the rights conferred by the Civil Rights Act of 1964 as construed in Hamm.” Id. at 804 (emphasis added).
In City of Greenwood v. Peacock, 384 U.S. 808 (1966), decided on the same day as Rachel, the Court highlighted the limited nature of the Rachel exception. In Peacock, twenty-nine people were prosecuted as a result of First Amendment petitioning activity. The Mississippi state court defendants sought removal under
the basic difference between this case and Rachel is thus immediately apparent. In Rachel, the defendants relied on the specific provisions of a pre-emptive federal civil rights law -- §§ 201(a) and 203(c) of the Civil Rights Act of 1964 ... as construed in Hamm v. City of Rock Hill, supra -- that ... specifically and uniquely conferred upon the defendants an absolute right to “violate” the explicit terms of the state criminal trespass law with ... impunity.
Id. at 826. Accordingly, the Court explained that two significant differences existed between Peacock and Rachel. First, “no federal law confers an absolute right on private citizens ... to obstruct a public street, to contribute to the delinquency of a minor, to drive an automobile without a license, or to bite a policeman“; and, second, “no federal law confers immunity from state prosecution on such charges.” Id. at 826-27.
Peacock should not be read to narrow the holding of Rachel. Instead, the Court merely reiterated the limited and unique circumstances under which removability could be sustained regardless of the presence of a facially discriminatory state statute. Thus, Peacock reaffirms that in the vast majority of cases:
[i]t is not enough to support removal under
§ 1443(1) to allege or show that the defendant‘s federal equal civil rights have been illegally and corruptly denied by state administrative officials in advance of trial, that the charges against the defendant are false, or that the defendant is unable to obtain a fair trial in a particular state court. The motives of the officers bringing the charges may be corrupt, but that does not show that the state trial court will find the defendant guilty if he is innocent, or that in any other manner the defendant will be “denied or cannot enforce in the courts” of the State any right under a federal law providing for equal civil rights. The civil rights removal statute does not require and does not permit the judges of the federal courts to put their brethren of the state judiciary on trial. Under§ 1443(1) , the vindication of the defendant‘s federal rights is left to the state courts except in the rare situations whereit can be clearly predicted by reason of the operation of a pervasive and explicit state or federal law that those rights will inevitably be denied by the very act of bringing the defendant to trial in the statе court.
Id. at 827-28. As a result, the Court in Peacock refused to expand Rachel‘s interpretation of
earlier “decisions were correct in their basic conclusion that the provisions of
B. The First Prong of Georgia v. Rachel
The Trustees assert that their case satisfies both requirements for
result from a conspiracy motivated by race-based animus, and submit, therefore, that they have invoked the protection of an “equal civil rights” statute as required by the Court in Rachel.
Intuitively,
It is not clear, however, that
where defendant claimed protection, under
Even if
The status of
close and difficult issue because we conclude, for reasons described herein, that the Trustees have failed to satisfy the second Rachel prong.
C. The Second Prong of Georgia v. Rachel
In order to sustain removability under
The Trustees assert that the mere pendency of the state court defamation action violates their federal civil rights as prescribed in
filed their defamation action soon after the Trustees filed the federal civil rights action, and as such the state action can be viewed only as a means to intimidate and retaliate against the Trustees for pursuing their federal action. They contend that
A careful reading of
The Trustees nonetheless claim that, just as Hamm v. City of Rock Hill immunized state court defendants from prosecution for trespass, Griffin v. Breckenridge, 403 U.S. 88 (1971), held that
Griffin cannot be read to extend protection to the Trustees for several reasons. First, the Court in Hamm relied оn language that expressly protected against prosecution, in that § 203 of the Civil Rights Act provided that “[n]o person shall ... punish or attempt to punish any person” for exercising any right protected under the Act. Hamm, 379 U.S. at 311. No such language exists in
In sum, it is clear that nothing in
The line between Rachel and Peacock is that between “prosecutions in which the conduct necessary to constitute the state offense is specifically protected by a federal equal rights statute under the circumstances alleged by the petitioner, and prosecutions where the only grounds for removal is that the charge is false and motivated by a desire to discourage the petitioner from exercising or to penalize him for having exercised a federal right.”
Johnson v. Mississippi, 421 U.S. 213, 234 (1975) (Marshall, J., dissenting) (citing New York v. Davis, 411 F.2d 750 (2d Cir. 1969)). Even if the Trustees are correct in their assertions
concerning the Commissioners’ retaliatory motivation, their case clearly falls into the latter category, and as such, outside the narrow exception identified in Rachel. Moreover, removal is not warranted by the concern, simpliciter, that a denial of equal rights may take place and go uncorrected at trial. Rachel, 384 U.S. at 800. An analysis of that sort would require this Court to second-guess the impartiality of our state court brethren, and this outcome is exactly what the court in Rachel and Peacock counseled against.
None of the cases on which the Trustees rely persuades us to hold otherwise. See Sofarelli, 931 F.2d 718; Whatley v. City of Vidalia, 399 F.2d 521 (5th Cir. 1968); Rogers v. Rucker, 835 F.Supp. 1410 (N.D. Ga. 1993); Northside Realty Assoc., Inc. v. Chapman, 411 F. Supp. 1195 (N.D. Ga 1976). Whatley is not apposite because the removing defendants in that case specifically invoked the provisions of the Voting Rights Act of 1965, which provides that “[n]o person shall intimidate, threaten or coerce ... any person for urging or aiding any person to vote or attempt to vote.” Id. at 522 n.2 (citing
The cases of Sofarelli, Rogers, and Northside Realty are similarly unhelpful. In those cases, the removing state court defendants invoked a provision of the Fair Housing Act of 1968 which provides that no person shall “coerce, intimidate, threaten, or interfere with any other person ... on account of
his having aided or encouraged any other person in the exercise or enjoyment of any right granted” by the Fair Housing Act. Northside Realty, 411 F. Supp. at 1198 (citing
In addition, the Trustees cannot derive support from Conrad v. Robinson, 871 F.2d 612 (6th Cir. 1989). In that case, the removing defendant Robinson filed a Title VII action against Conrad, and a newspaper article was subsequently published that discussed the pending case. Conrad, based on the statements in the newspaper article and in Robinson‘s complaint, brought a libel actiоn against him. In upholding
We need not pass on whether we will follow Conrad because the question addressed by the Sixth Circuit is not the same as
the one we now face. In Conrad, the removing defendant alleged that the state court prosecution was not permitted because Title VII prohibited any form of retaliation against an employee for having filed charges of discrimination in employment. Id. at 615 (citing
We are not insensitive to the point so effectively made by the Trustees’ able counsel that the events that form the basis of the state court defamation action stem from the same set of facts as those underlying the federal civil rights action, and that, since allegations of racial bias suffuse the litigation, which is anchored in federal court, the defamation action too must be heard there in order to assure that civil rights are not compromised. But this view ignores the rigors of federalism, and the technical precepts of governing by dint of which the principles of federalism are translated into reality.
IV. Conclusion
The second prong of Georgia v. Rachel has not been met, just as the district court сoncluded; therefore, the order of the district court remanding this case to the Court of Common Pleas of Montgomery County (PA) will be affirmed.