Case Information
*1 Before F LAUM M ANION , T INDER , Circuit Judges . F LAUM Circuit Judge
. This appeal concerns conditions which defendant may remove pursuant statute, We conclude satisfied case, therefore affirm district court’s remand order. No.
I. Background 2010, Tonya Davis retained Ernest Fenton represent
her in connection with home foreclosure proceeding. Davis later sued Fenton for malpractice. Davis claimed that, alt hough she paid Fenton several thousand dollars legal as sistance, he virtually nothing help her keep her home. She also claimed he targeted her inferior service based her race, in violation Act, U.S.C. § et seq. That case, Davis Fenton currently stayed district court pending arbitration. 1:13 cv WL (N.D. Ill. Feb. 7, 2014).
The complaint Davis filed 2013. Shortly thereafter, Fenton brought his own lawsuit court, against Davis but against Davis’s lawyers: Kelli Dudley and Andrew Sidea. Fenton alleged Dudley and Sidea had intentionally spread false information about him his cli ents and business associates. Fenton also alleged Sidea, who previously worked Fenton’s office, had im properly obtained confidential information about Fenton’s clients and shared with Dudley. complaint advanced claims conversion, tortious interference business relationship, defamation, and sought damages and an injunction.
After learning Fenton’s complaint, Dudley filed notice removal district They asserted bases removal both general removal statute, U.S.C. more specialized statute, Three days later, despite acknowledging ongoing proceedings, Cook County Circuit entered ex parte preliminary junction against Sidea. injunction ordered to stop defaming Fenton to cease contact with his current former clients.
Back court, Fenton filed a motion to remand Fenton v. Dudley case to state district court found case meet removal requirements under either U.S.C. § § granted mo tion. Generally, remand orders are appealable, but there is an exception when case is removed pursuant to § See U.S.C. § 1447(d). We must therefore decide whether district court correct to return case to state court whether district court fact had jurisdiction removal statute.
II. Discussion
As preliminary matter, we note Cook County Circuit Court’s decision enter injunction after case removed court clearly contrary 1446(d), which provides that, once defendant filed notice with state court, state court may “proceed no further unless until case remand ed” (emphasis added). See also Ackerman ExxonMobil Corp. (4th Cir. 2013) (“[A]ny post actions taken state court removed action are void ab initio .”). asked us take action respect court injunction, although we understand hope move district court dis solve injunction following our decision removal. Nev ertheless, like district court, troubled would disregard 1446’s clear command, especially because face of injunction order reveals that state court recognized that defendants initiated removal.
A. civil rights statute provides for removal state court of any civil action or criminal prosecution
“[a]gainst any person who is denied or cannot enforce in courts such State right under any law providing rights citizens United States.” U.S.C. 1443(1). A second subsection provides under other special circumstances, but it is relevant case.
Dudley Sidea argue Fenton’s lawsuit is calculat ed deny them their section Fair Housing Act. That makes “unlawful coerce, in timidate, threaten, or interfere any person … on ac count his having aided or encouraged other person exercise enjoyment of[ ] right granted protected by” Act. Fenton’s complaint alleges part have “conspired advance Mrs. Dudley’s practice by filing suits court without regard substantive value same”—proof, their view, Fenton retaliating against helping To nya Davis bring her claim. further argue they de
nied cannot enforce aid encourage Illinois courts. particular, argue ‐ court’s injunction—which prohibits them from contacting “any former current client and/or employee Law Offices Ernest B. Fenton”—makes impossible to exercise their (or their client’s) rights. Read literally, injunction would prevent and Sidea speaking to their client, since Davis Fenton’s former client; to other Fenton’s clients, in order to substantiate Davis’s claim; and even each other, since briefly Fenton’s employee. The result, they say, complete inability prosecute Davis’s case.
B.
To evaluate these arguments, first turn pair decisions issued same day in 1966: Georgia Rachel U.S. and City Greenwood v. Pea cock defendants in both cases sought remove criminal prosecutions under § 1443(1). in Rachel were arrested and charged with criminal trespass after staging sit ins restau rants Atlanta; in were arrested and charged obstructing public streets after registering African American voters Mississippi. Both sets ants claimed their activity—the sit ins voter registration —was federally protected their arrests prosecutions were racially motivated. And both claimed could enforce Georgia Mississippi courts, respectively.
A defendant who seeks remove under 1443(1) must first show her claim involves “a providing equal civil rights.” 1443(1). clarified “laws providing rights” limited those “rights specifically defined terms 14 ‐ 1067 racial equality.” U.S. More general sources equality rights, like Due Process Clause, rights framed nonracial terms do suffice. 791–92. That re quirement met here. Act, which Sidea rely on, framed racial equality terms. E.g. , (prohibiting various types discrimination housing because race). addition identifying equality right,
ant seeking remove 1443(1) must make second showing: that she “denied cannot enforce” that state Initially, this required defendant point some state law constitutional provision was discriminatory its face. Compare Strauder v. West Virginia U.S. (1879) (removal was proper where state statute formally excluded African Americans from jury ser vice), with Virginia Rives U.S. (1879) (removal was proper where, although African Americans were alleg edly excluded jury service matter course, state statute was formally neutral). Suffice say Dud ley pointed no blatantly discriminatory provision Illinois would meet this standard.
But recognized an exception this rule: “even absence discriminatory enactment,” Court held, could be proper if “an equivalent basis could be shown equally firm prediction defendant would be ‘denied cannot enforce’ specified court.” (emphasis added). reasoned limited exception was con sistent purposes behind “formal expression” requirement—allowing only where clear be fore trial defendant would denied his ‐ equality rights, avoiding the “unseemly” task of federal judges assessing the “likely disposition of particular federal claims” by the judiciary. Id. at 803.
The Court proceeded explain why the defend ants met new equivalent basis exception. Section 203(a) of Civil Act of gave the defendants the right equal enjoyment of any place of public accommodation without discrimination because of race. Id. 793. Moreover, just previous term, Court had construed 203(c) of Act prohibit only conviction, but also “prosecution of person for seeking service covered establishment, because of his race color.” Id. (quoting Hamm v. City of Rock Hill U.S. (1964)). If defendants’ allegations proved true, then “mere pendency of [criminal trespass] prosecutions” deprived them their right “to free attempt pun ish protected activity.” (internal quotation marks omitted). The basis clear prediction could enforce equality was thus plain: “The burden having prosecutions itself denial explicitly con ferred 1964.” Id .
The equivalent basis exception announced quite narrow, however, City Greenwood made clear. charged dis turbing peace obstructing streets while register ing black voters. They brought suit variety provi sions, including 1971. assumed providing rights, so sat isfied first step test. But rejected contention were “denied or could not enforce” their federal rights in state court. “The present case differs from Rachel in two significant respects,” the Court wrote. “First, no federal law confers absolute right on private citizens … to obstruct a public street.” Id. at 826. by contrast, Civil gave de fendants a right to be present in restaurants despite be ing ordered to leave. “Second, no federal confers im munity state prosecution such charges.” Id. 827. Again by contrast, a not even be prosecuted for exercising rights under Act.
To qualify under 1443(1), Court under scored, “[i]t is not enough … allege show that de fendant’s federal rights have illegally corruptly denied state administrative officials advance trial, that charges against defendant false, that defendant is unable obtain fair trial a particu lar state court.” Id. 827. Thus unable make “clear pre diction” rights would be denied could enforced state court, Supreme Court dered case remanded. It emphasized “not one moment suggest[ing] individual petitioners case have alleged denial guaranteed law.” Id. Nevertheless, remedy denial include
C. Returning before us, briefly suggest court’s preliminary injunction itself “formal expression law” justifying removal. junction indeed troubling, indicated. But made clear “formal expression” *9 9 1067 state law means “a law of general application,” Rachel , U.S. at 800—something like “a legislative constitu tional provision, rather than a denial first made manifest trial of case,” Johnson v. Mississippi , U.S. (1975) (internal quotation marks omitted). Whatever we may think injunction’s merits, it purportedly applies only parties before court; not law general ap plication. So if Dudley Sidea are remain federal court, must show their fits into ’s excep tion—that is, both (1) “confers an absolute right” on them engage conduct Fenton accuses of, (2) “confers immunity” being hauled into on such grounds. , U.S. 826–27.
We conclude their argument founders at first step. While Act gave Ra chel absolute right remain place public accom modation when asked leave basis race, Fair Housing Act gives Dudley Sidea no comparable right commit defamation interfere business relationship, even service Fair Housing Act claim. Indeed, at oral argument counsel admitted Act does immunize conduct at issue. ’s terms, does “substi tute[] crime.” U.S. 805; see also Hill Penn sylvania (3d Cir. 1971). Of course, may very well none things Fenton alleges; stage are merely reading Fenton’s complaint. But 1443(1) does alter presumption courts well as courts competent sort out truth these allegations. See ‐
Because we conclude does give Dud ‐ ley Sidea right to engage conduct Fenton alleg es—defamation, tortious interference with business rela tionship, conversion—there no need to decide wheth er Fair Housing Act gives immunity even be ing brought to trial on these claims as well. Nevertheless, be cause district indicated it thought ants satisfied second step, well, believe worthwhile devote few words question.
D. Civil Rights Act has anti retaliation provision, sec
tion 203(b), closely corresponds section Fair Housing Act, which invoke. Compare § 2000a 2(b) (“No person shall … intimidate, threaten, or coerce … any person with purpose interfering with any right or privilege secured by [the Civil Rights Act].”), with id. (“It shall unlawful coerce, intimidate, threaten, or interfere any person exercise or en joyment … any right granted or protected [the Fair Housing Act].”). In however, focus on section 203(b) Civil Act. Instead, rested its analysis on section 203(c), which provides “[n]o person shall punish attempt punish person exercising attempting exercise privilege secured” Act. 2000a 2(c) (emphasis added). no analogous “punish attempt punish” prohibition. light ’s focus 203(c) Act, some courts—most prominently, Second Cir cuit Emigrant Savings Bank Elan Management Corp. (1982)—have concluded only cases involving statute with explicit anti prosecution language remova ble § 1443(1). But other courts—like Fifth Circuit in Whatley City of Vidalia (1968)—have held language of sort not necessary. For these courts, more generic “intimidate, threaten, or coerce” language statute may permit removal to court.
Describing parameters of dispute requires cir cuitous tour through two cryptic footnotes Peacock . As said, Peacock specifically cited U.S.C. § support their petition. But provi sion, originally enacted Rights Act not entirely point. first subsection, § 1971(a), guaran tees right to vote free from racial discrimination; sec ond, § 1971(b), makes unlawful to “intimidate, threaten, coerce any other person purpose interfering such other person vote.” (The Peacock ants, remember, were arrested while registering others vote, not while voting attempt vote themselves.) By contrast, later statute, Voting Act did speak directly defendants’ alleged conduct. Section 11(b) Act, codified 1973i(b), makes unlawful “intimidate, threaten, coerce person urging aiding person vote.” Yet de fendants did cite 11(b) their petition— understandably, because Voting yet enacted when removed Mississippi footnote describing basis claim removal, Court quoted text 1971(a) (b) (the provisions strictly apply de fendants’ claim). But appended “see also” cita 14 1067 tion section 11(b) the Voting Rights Act, well. Peacock , at n.3. Later, after observing “no confers immunity from prosecution” the ants, id. 827, the Court noted:
Section 203(c) Civil Rights Act the pro vision involved Georgia , explicitly pro vides no person shall ‘punish or attempt pun ish any person exercising attempting exercise privilege’ secured by public accom modations section Act. None stat utes invoked defendants present contains such provision. See note note supra.” n.25 (emphasis added citations omitted). It unclear what inference lower courts should draw Peacock ’s footnote its cross reference footnote On one hand, Peacock “invoke” section 11(b) Voting peti tion; if had, perhaps Court would found its “intimidate, threaten, coerce” language broad enough warrant removal. On other hand, Court singled out “punish attempt punish” language section 203(c) Act. And undoubtedly aware section 11(b) least arguably applied, cited along 1971(b). Whatley , Fifth Circuit adopted former interpre tation. Whatley like involved prosecution registering African Americans vote. This time, however, the specifically invoked section 11(b) of the Voting removal petition. Fifth Circuit concluded that Peacock did not bar removal 1443(1). Even though section 11(b) lacked “punish at ‐ tempt punish” language, reasoned that the pro vision was “a more, not less, sweeping prohibition official acts harassment against than limited proscription 203(c) [in Rachel ], since ‘attempts punish’ only one means coercing, threatening, intimidat ing.” Whatley , F.2d at (quoting North Carolina Haw kins F.2d (4th Cir. 1966) (Sobeloff, J., concur ring)). Fifth Circuit surmised Peacock had disal lowed removal similar circumstances simply because there not invoked section 11(b). Id. at 525–26.
About decade later, (like ours) involving sec tion Act, Second Circuit rejected Whatley ’s reading . Emigrant Savings n.4. In Second Circuit’s view, footnotes fact relied only on “punish attempt punish” language section 203(c) Act— not more generic anti retaliation language 203(b)—showed “the permissible range removal was limited statutes containing explicit anti prosecution language.” Id. 675. As result, appropri ate where defendant merely alleged plaintiff brought action intimidate coerce defendant exercising his rights.
Although we do decide, may well Sec ond Circuit better interpretation. particular, note petition voke provision which ultimately *14 14 14 1067 relied, either. See Rachel, U.S. at n.21 (“Since the peti ‐ tion predated the enactment of the Public Accommodations Title of the Rights Act of 1964, it could not explic ‐ itly alleged coverage under that Act. It recites facts, however, invoke application of that Act on appeal.”). This makes the Fifth Circuit’s basis for distinguishing Whatley Pea ‐ cock —that Peacock did not specifically ad ‐ vance section 11(b) theory before Court—less convinc ing. Surely Peacock also recited facts “in voked application of” Voting on appeal. Indeed, dissent relied on section 11(b) argue “state prosecutions themselves constitute denial of ‘a any providing citizens.’” U.S. at (Douglas, J., dissenting).
That said, question is close one, plumbing depths Court’s infrequent pronouncements on this sue unlikely produce totally satisfying answer. As even Judge Friendly, author Emigrant Savings , admit ted, “it is arguable that citation in footnote would ra ther elliptical way to decide such important question.” New York v. Horelick , F.2d 702–03 n.4 (2d Cir. 1970).
At least in courts appeals, debate cooled af ter Whatley and Emigrant Savings . Cf. Davis v. Glanton 1050–51 (3d Cir. 1997) (noting that 1985(3) lacks “punish attempt to punish” language, but also noting that statute’s “intimidation” provision did apply to conduct issue). Absent clarification from Court, we will need do our best read between lines and Peacock if anti retaliation/anti prosecution issue is squarely presented future appeal. For now, is enough say that we doubt that gives immunity even having
III. Conclusion Johnson Mississippi Justice Marshall stated “[t]he
line between Peacock is between prosecutions which conduct necessary constitute offense specifically protected by statute un der circumstances alleged by petitioner, prosecu tions where only grounds charge false motivated desire discourage petition timidation, interference.” Id. 235–36 (Marshall, J., dissenting). It ap parently agreed Whatley ’s holding involve 11(b). n.6. Nevertheless, dissent also indicated— analogously what hold today Part II.C—that even if provi sion applied, still would inappropriate because alleged conduct federally protected. Id . er exercising right.” (Mar shall, J., dissenting) (internal quotation marks omitted). Even if correct Fenton retaliatory motivation, this case falls into latter category removable 1443(1). See Glanton
If indeed violated case, believe violation can, must, heard remedied Illinois courts. district court’s order remanding accordingly
A FFIRMED .
[1] handwritten order states: “This motion before court plain tiff’s Motion For Preliminary Injunction; plaintiffs’ counsel being present; present; being advised premises includ ing Notice Removal filed defendants; hereby ordered .”
[2] Footnote discussed separate claim re moval 1443(2), subsection relevant here.
[3] The Court last spoke § 1443(1) Johnson Mississippi but it did little dispel confusion surrounding element test. In Johnson Court rejected based on fed eral provision made unlawful “by force threat force” “wil fully injure[], intimidate[], interfere[] with” any person “applying enjoying employment, perquisite thereof, private em ployer.” Id. n.11 (quoting § 245(b)). The focused primarily legislative history determine § 245(b) directed towards racially motivated acts violence, not prosecutions Id. 225–27. yet another footnote, Johnson majority also ed “the similarity between language 1971(b) [the provision actu ally, albeit unsuccessfully, invoked ] comparable language 245(b),” but did elaborate further. n.10. majority mention 11(b) Voting Act. dissent rejected majority’s distinction purposes between statutes prohibit “punishment” versus merely “injury,