Davis v. Glanton ( 1997 )

Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit
3-3-1997
Davis v. Glanton
Precedential or Non-Precedential:
Docket 96-1299
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IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 96-1299
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
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
Before: BECKER, ROTH, Circuit Judges, and
BARRY, District Judge.*
(Filed March 3, l997)
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
*
Honorable Maryanne Trump Barry, United States District
Judge for the District of New Jersey, sitting by designation.
1
Philadelphia, PA 19104
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 B. 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, 28 U.S.C. §
1443(1), on the ground that the defamation action represents an
attempt to retaliate against the Trustees for exercising their
federally protected right to assert, in a federal lawsuit, that
they were discriminated against by the Commissioners on racial
grounds. Although the Trustees present an emotionally appealing
argument for removal, we conclude that they have failed to
satisfy the narrow and well-defined requirements for § 1443(1)
2
removal as explicated in State of Georgia v. Rachel, 384 U.S. 780
(1966), and City of Greenwood v. Peacock, 384 U.S. 808 (1966).
We will therefore affirm the order of the district court
remanding the removed action to the state court from whence it
came.
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 resignation 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
1
The Commissioners filed a voluntary notice of dismissal
without prejudice of Trustee Frank on June 13, 1996.
3
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 42 U.S.C. § 1983
and § 1985(3), claiming that the Township, the members of the
Township Board of Commissioners, and certain of the Foundation’s
Latches Lane neighbors had conspired to harass, intimidate,
interfere with, and discriminate against the Foundation.2 The
federal civil rights complaint alleges that the Township and the
Commissioners, in concert with the neighbors, imposed parking,
police, fire, and zoning requirements and regulations in such a
way as to injure the Foundation and interfere with its use of its
property, and that they enforced these requirements and
regulations against the Foundation more aggressively than they
did against other similarly situated institutions.
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
2
The district court, by order dated June 3, 1996, dismissed
the complaint as to the neighbors on the grounds that, even
assuming that they had participated in a conspiracy to violate
the Foundation’s constitutional rights and were motivated by
invidious racial animus, they enjoyed total immunity under the
Noerr-Pennington doctrine. See Barnes Foundation v. Township of
Lower Merion, No. 96-0372. The Trustees do not appeal this
order.
4
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) statements 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 28 U.S.C. §§ 1441, 1443(1), and 1651.3 The Trustees
contend that the defamation suit represents an attempt by the
Commissioners to retaliate against the Trustees for exercising
their federally protected rights. Indeed, the Trustees assert
that the very filing of the defamation action violates their
civil rights, and, at all events, that the Foundation and the
Trustees will be denied their right to be free from
3
On March 7, 1996, the Foundation also amended its complaint
in the federal civil rights action to allege that the filing of
the defamation action and the imposition on the Trustees of the
obligation to defend it were taken to further the alleged
conspiracy to harass the Foundation in violation of § 1983 and §
1985(3). The amended complaint also asserts that the institution
of the suit violates the Foundation’s First Amendment rights.
5
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 § 1443(1), the district court held
that the Trustees have never demonstrated that they would be
unable “to protect their rights” in state court as required by
Georgia v. Rachel, 384 U.S. 780 (1966), and City of Greenwood v.
Peacock, 384 U.S. 808 (1966). The district court also held that
removal pursuant to § 1441 was improper because the Trustees had
failed to show that federal law was an essential element of the
Commissioners’ state court defamation action. In so holding, the
court ruled that the state action “cannot be viewed as a
retaliatory measure for bringing the federal claim, but is an
independent defamation action in its own right.”
Finally, the district court found that the state court
defamation action was not removable under § 1651, better known as
the All Writs Act, because the Trustees did not meet “their
threshold burden of demonstrating the ‘extraordinary
circumstances’ that would justify removal under the Act.” On
April 3, the Trustees filed a Notice of Appeal from the District
Court’s order.
II. Appellate Jurisdiction
6
Our power to review a remand order is defined by 28 U.S.C. §
1447(d), which provides:
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 § 1443. However, it follows from the clear text of §
1447(d) that, insofar as the Trustees’ appeal challenges the
district court’s rulings under 28 U.S.C. § 1441, we must dismiss
the appeal for want of appellate jurisdiction. We so held in
Gittman v. Gittman, 451 F.2d 155, 156 (3d Cir. 1971) (recognizing
the non-appealability of decisions on removal, even when a
removal decision pursuant to § 1443 is appealable in the same
case). We will accordingly dismiss the appeal insofar as it is
predicated on § 1441.4
4
The Trustees also invoke our mandamus jurisdiction under
the All Writs Act, 28 U.S.C. § 1651. A district court, in
exceptional circumstances, may use its authority under the Act to
remove an otherwise unremovable state court action to “prevent
the frustration of orders it has previously issued in its
exercise of jurisdiction otherwise obtained.” United States v.
New York Tel. Co., 434 U.S. 159, 172 (1977). Here, however, the
Trustees have not demonstrated how removal will support
jurisdiction that is already in existence. Nor have they
identified the “extraordinary circumstances” necessary to justify
removal under the Act. See In re Agent Orange Product Liability
Litig., 996 F.2d 1425, 1431 (2d Cir. 1993) (The Act is not a
“jurisdictional blank check which [federal courts] may use
whenever they deem it advisable.”). Accordingly neither will we
exercise jurisdiction under § 1651.
7
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, 28 U.S.C. § 1443,
authorizes the removal of a state law action:
[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 § 1443(1), clarifying that removal requires
satisfaction of a two-pronged test: a state court defendant must
demonstrate both (1) that he is being deprived of rights
guaranteed by a federal law “providing for ... equal civil
rights”; and (2) that he is “‘denied or cannot enforce’ that
right in the courts” of the state. Id. at 788. In Rachel,
twenty African-American individuals were prosecuted in state
court for criminal trespass violations as a result of their
attempts to obtain service at a privately owned restaurant in
Atlanta, Georgia. In contrast, federal law required such a
restaurant to serve persons of all races, thus immunizing the
8
conduct for which they were being prosecuted. The arrested
individuals sought to remove the state court prosecutions to
federal court on the basis of 28 U.S.C. § 1443(1). In construing
the first requirement, the Court determined that “the phrase ‘any
law providing for ... equal civil rights’ must be construed to
mean any law providing for specific civil rights stated in terms
of racial equality.” Id. at 792. The Court concluded that the
statute invoked by the removing defendants, the Civil Rights Act
of 1964, was a statute providing for equal civil rights.
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 been required to be so manifest in a formal expression of
state law that “it could be taken as suitable indication that all
courts in that State would disregard the federal right of
equality with which the state enactment was precisely in
conflict.” Id. at 804 (citing Strauder v. West Virginia, 100 U.S.
303 (1880), and Commonwealth of Virginia v. Rives, 100 U.S. 313
(1880)). The Court explained that, given the particular
circumstances of that case, a firm prediction that a defendant
would be denied federal rights in the state court might be made
even in the absence of a discriminatory state enactment.
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
9
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 the 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 denial 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 § 1443(1). The Peacock Court began its analysis of §
1443(1) removability by noting the unique circumstances present
in Rachel:
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.
10
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 where it 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 state court.
Id. at 827-28. As a result, the Court in Peacock refused to
expand Rachel’s interpretation of § 1443(1), holding that its
11
earlier “decisions were correct in their basic conclusion that
the provisions of § 1443(1) do not operate to work a wholesale
dislocation of the historic relationship between the state and
the federal courts in the administration of the . . . law.” Id.
at 831.
B. The First Prong of Georgia v. Rachel
The Trustees assert that their case satisfies both
requirements for § 1443(1) removability as set forth in Rachel
and interpreted in Peacock. While they invoke 42 U.S.C.
§ 1985(3) with respect to both prongs, in terms of the first
prong, they contend that the filing of the state court defamation
action was an act in furtherance of a racially motivated
conspiracy to deny them their equal civil rights.5 The Trustees
point out that § 1985(3) was designed to redress injuries that
5
42 U.S.C. § 1985(3) provides:
If two or more persons in any State or Territory conspire
... for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal
protection of the laws, or the equal privileges and
immunities under the laws; or for the purpose of preventing
or hindering the constituted authorities of any State or
Territory from giving or securing to all persons within such
State or Territory the equal protection of the laws; or if
two or more persons conspire to prevent by force,
intimidation, or threat, any Citizen who is lawfully
entitled to vote, ...; in any case of conspiracy set forth
in this section, if one or more persons engaged therein do,
or cause to be done, any act in furtherance of the object of
such conspiracy, whereby another is injured in his person or
property, ... the party so injured or deprived may have an
action for the recovery of damages, occasioned by such
injury or deprivation, against any one or more of the
conspirators.
12
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, § 1985 would seem to constitute an “equal civil
rights” statute. It surely provides a cause of action for one
who has been the victim of conspiratorial racial discrimination,
and hence denied the “equal protection of the laws.”
Furthermore, its origins rest in the Klu Klux Klan Act of 1871,
an Act passed exclusively to redress civil rights violations
motivated by racial prejudice. See Griffin v. Breckenridge, 403
U.S. 88, 98 (1971) (Ku Klux Klan Act of 1871 “is the parent of §
1985(3)”).
It is not clear, however, that § 1985(3) satisfies the
technical nature of the Court’s jurisprudence in this area. In
fact, Rachel and Peacock suggest that a state court defendant
must invoke a statute that expressly provides for equal rights
stated specifically in terms of racial equality. Peacock, 384
U.S. at 828. The one circuit to have considered § 1985(3) in the
context of § 1443(1) removal affirmed the remand order of the
district court, and stated, without exposition, that the district
court had “properly followed Rachel.” Doe v. Berry, 967 F.2d
1255, 1256 (8th Cir. 1992). In contrast, courts that have
granted removal under § 1443(1) addressed claims brought under
civil rights statutes that specifically protected civil rights
based on racial equality. See Conrad v. Robinson, 871 F.2d 612,
615 (6th Cir. 1989) (holding that the first prong was satisfied
13
where defendant claimed protection, under 42 U.S.C. § 2000e-3,
from retaliation for engaging in activity protected by 42 U.S.C.
§ 2000e-2(c), which forbids limiting union membership on account
of “race, color, religion, sex, or national origin”); Sofarelli
v. Pinellas County, 931 F.2d 718, 721 (11th Cir. 1991) (first
prong satisfied where defendant asserted protection under the
Fair Housing Act, which prohibits discrimination in housing “on
the basis of race”).
Even if § 1985(3) is deemed to protect specifically against
race-based discrimination as the Rachel Court required, the
Commissioners contend that the Trustees’ claim must falter on an
altogether different ground. They submit that, in actuality, the
Trustees are using the vehicle of a § 1985 claim to protect their
First Amendment rights. That is not an implausible contention,
and, were it to be the case, the Trustees’ removal action would
be improper, for the Supreme Court has held that “the First
Amendment rights of free expression ... are not rights arising
under a law providing for ‘equal civil rights’ within the meaning
of § 1443(1).” Peacock, 384 U.S. at 825. However, more than
asserting that the filing of the state defamation action violates
their First Amendment rights, the Trustees contend that the
Commissioners filed the defamation action in direct retaliation
for the filing of a federal civil rights action alleging racial
discrimination in violation of federal law.
The status of § 1985(3) as an “equal civil rights” statute
is thus unclear, with strong arguments on both sides in terms of
the jurisprudence. Fortunately, however, we need not reach this
14
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 § 1443(1), a
defendant must also demonstrate that he is “denied or cannot
enforce” his specified federal rights in the state courts.
Rachel, 384 U.S. at 788. Although traditionally the denial had
to be manifest in a “formal expression of state law,” a defendant
can now sustain pre-trial removal where a federal civil rights
statute “[o]n its face . . . prohibits prosecution of any person”
seeking to exercise that civil right. Id. at 804 (citing Hamm,
379 U.S. at 311). Thus, removal is available where the state
court defendant’s federal civil rights would “inevitably be
denied by the very act” of being brought to trial in state court.
Peacock, 384 U.S. at 828. In creating such a narrow range of
cases that are susceptible to removal, the Supreme Court sought
to ensure that “removal would be available only in cases where
the predicted denial [of equal civil rights] appeared with
relative clarity prior to trial.” Rachel, 384 U.S. at 803. For
if the denial was less clear, the federal courts would become
“involved in the unseemly process of prejudging their brethren of
the state courts.” Id.
The Trustees assert that the mere pendency of the state
court defamation action violates their federal civil rights as
prescribed in § 1985(3). They emphasize that the Commissioners
15
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 §
1985(3), like the sections of the Civil Rights Act of 1964 at
issue in Rachel, prohibits actions to intimidate or punish
persons for exercising civil rights protected by § 1985(3).
Furthermore, they argue that attempts to punish, even if
unsuccessful, deny and violate the very rights provided by that
provision.
A careful reading of § 1985(3) makes clear, however, that
the provision grants no such protection. It does not confer an
absolute right on private citizens to defame others. Nor does it
confer immunity from state civil actions brought to seek redress
for those statements. Furthermore, the Trustees do not attempt
to demonstrate, and apparently cannot demonstrate, that a state
law exists that would on its face deny them the ability to
enforce their equal rights in state court.
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
§ 1985(3) immunizes the Trustees from a defamation action. They
submit that the Court in Griffin explained that § 1985(3)
“protects against ‘intimidation,’ which must include threats of
civil and criminal prosecution against African-Americans
exercising First Amendment rights,” and, therefore, that §
1985(3) protects the Trustees from a defamation action. But
16
Griffin cannot be read to extend protection to the Trustees for
several reasons. First, the Court in Hamm relied on 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 § 1985(3). In fact, the only place in this
statute which specifically refers to “intimidation” is related to
the right to vote. Thus, a perusal of § 1985(3) makes clear that
it does not provide the Trustees with a right to engage in
tortious, defamatory conduct. Second, the Trustees misread
Griffin, for nowhere in it does the Court intimate that § 1985(3)
prohibits the prosecution of a state court defamation action.
In sum, it is clear that nothing in § 1985(3) or in Griffin
immunizes the Trustees from civil state court defamation actions,
and that they fail to fit within the limited exception set forth
in Rachel. In fact, the circumstances of the Trustees’ case are
closer in appearance to Peacock than to Rachel. The distinction
between these two types of cases is clear:
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
17
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 42 U.S.C. §
1973i(b)). Thus, because Congress had specifically immunized the
action in question, the state court defendants could not be
prosecuted for encouraging individuals to vote.
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
18
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 42 U.S.C. § 3617).
Thus, no person who had encouraged another to take advantage of
the Fair Housing Act could be prosecuted, and the filing of the
suit itself violated the removing defendants’ civil rights. As
previously discussed, the Trustees cannot avail themselves of
such a provision, for § 1985(3) does not immunize them from a
civil defamation suit.
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 action against him. In upholding § 1443(1) removal, the
Sixth Circuit noted that the “only statements made by Robinson”
which Conrad claimed were libelous “related to Robinson’s [pre-
existing] federal court suit.” As a result, the Sixth Circuit
opined that the “connection between Robinson’s speech and this
protected activity [the filing of the suit] is very close. ...
Had Robinson’s comments in the Plain Dealer been unrelated to his
pre-existing federal court case against [the union], but were
just general allegations that Conrad discriminated on the basis
of race, the result might be very different.” Id. at 616.
We need not pass on whether we will follow Conrad because
the question addressed by the Sixth Circuit is not the same as
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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 42 U.S.C. § 2000e-3). Title VII contains an explicit
proscription against discrimination against any employee because
“he has opposed any practice made an unlawful employment practice
by this subchapter, or because he has made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.” 42 U.S.C. §
2000e-3(a). The Conrad court determined that the filing of the
defamation suit was in retaliation for the filing of an action
under Title VII. In the present case, the Trustees have not
cited to a specific federal law that prohibits retaliation
against, or provides immunity for, their allegedly defamatory
conduct.
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
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The second prong of Georgia v. Rachel has not been met, just
as the district court concluded; therefore, the order of the
district court remanding this case to the Court of Common Pleas
of Montgomery County (PA) will be affirmed.
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