State of Kansas, Ex Rel. Morrison v. Martin

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 2, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
STATE OF KANSAS, ex rel. Paul J.
M orrison, * Attorney General,
Petitioner-Appellee,
Nos. 07-3016 & 07-3024
v. (D .C. N os. 06-CV -4121-JA R &
06-CV-4082-JAR)
DA VID M AR TIN PRICE; (D . Kan.)
RO SEM AR Y D ENISE PRICE;
JA N IC E LY N N K IN G ,
Respondents-Appellants,
and
PRO SE A DVOCA TES,
Respondent.
OR D ER AND JUDGM ENT **
Before TA CH A, Chief Judge, M U RPH Y, and HO LM ES, Circuit Judges.
*
Pursuant to Fed. R. App. P. 43(c)(2), Paul J. M orrison is substituted for
Phill Kline as appellee in this action.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Respondents-appellants David M artin Price, Rosemary Denise Price, and
Janice Lynn King, proceeding pro se here as in the district court, appeal the
district court’s orders remanding the underlying lawsuit to the Kansas Supreme
Court and aw arding attorney fees and costs to petitioner. We hold that this court
lacks jurisdiction over the district court’s remand orders and we dismiss the
appeals from those orders. W e do have jurisdiction over the orders for attorney
fees and costs, however, and we affirm those orders.
I. Background
The Kansas Attorney General, the petitioner-appellee in this appeal, filed
an original action in quo warranto in the Kansas Supreme Court against
respondents on April 27, 2006, seeking to enjoin them from engaging in the
unauthorized practice of law. They were served with the petition on M ay 1, 2006.
Almost three months later, on July 26, 2006, respondents filed a notice of removal
to the federal district court. They claimed that the quo warranto action violated
their First Amendment right to assist others before the Kansas state courts, even
though they are not lawyers. Their removal documents also included
counterclaims asserting violations of their constitutional rights. On August 25,
2006, petitioner moved to remand the case to the state court and requested an
award of attorney fees and costs. The district court remanded the case on
September 26, 2006, and granted petitioner’s motion for attorney fees and costs
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upon presentation of an itemized statement. After reviewing the itemized
statement, the district court entered an award of attorney fees and costs against
respondents for $4,493.38. The district court denied respondents’ motion for a
new trial. They appeal; this action was assigned appeal No. 07-3024.
After the federal district court remanded the quo warranto action,
respondent Janice L. King filed another notice of removal to federal court, relying
on the same grounds as the first. 1 The federal district court remanded the case on
December 7, 2006, and again awarded attorney fees and costs to petitioner, this
time for $190.80. Respondents’ appeal of those orders was assigned appeal
No. 07-3016.
This court granted respondents’ motion to consolidate the tw o appeals.
Because the district court’s rulings and the issues raised on appeal are identical
for both appeals, we consider them together.
The district court granted petitioner’s motions to remand for lack of federal
subject-matter jurisdiction and because the removal notices were untimely under
28 U.S.C. § 1446(b). In its ruling on jurisdiction, the district court held that the
quo warranto action involved solely matters of state law, federal removal
jurisdiction cannot be conferred by a federally-based defense or counterclaim, and
1
The first remand order was issued by a federal judge sitting in Topeka,
Kansas. M s. King filed the second removal notice in W ichita, Kansas, seeking to
avoid the Topeka court. But the W ichita court clerk observed that the second
removal notice pertained to the same case as the first, and transferred it to the
federal judge assigned to the case in Topeka.
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respondents’ removal notices did not allege the requisite racial-equality claims to
qualify for removal under 28 U.S.C. § 1443.
On appeal, respondents argue that (1) the quo-warranto complaint failed to
state a claim upon which relief can be granted, (2) no Kansas law prohibits their
legal-advice activities, (3) the federal court has jurisdiction over the
constitutional questions raised in their removal motions, (4) the district court
misapplied § 1443 because Congress intended it to apply to all litigants seeking to
remove a case to federal court, and (5) they have standing to bring claims against
the State of Kansas for violating their constitutional rights in state court or agency
proceedings. They also allege that the federal district court was biased against
them because they are pro se litigants. They further claim that an ex parte
comm unication between the district court and petitioner’s attorney prejudiced
them.
W e construe pro se litigants’ pleadings liberally and hold them to “a less
stringent standard than formal pleadings drafted by lawyers,” but we do not make
legal arguments or perform legal research for them. Garrett v. Selby Connor
M addux & Janer, 425 F.3d 836, 840-41 (10th Cir. 2005) (citation and quotation
omitted).
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II. Analysis
A. Remand Orders
This court does not have subject-matter jurisdiction over respondents’
appeal of the district court’s remand orders. The remand orders are “not
reviewable on appeal or otherwise.” § 1447(d). As the Supreme Court has
“relentlessly repeated[,] any remand order issued on the grounds specified in
§ 1447(c) is immunized from all forms of appellate review, whether or not that
order might be deemed erroneous by an appellate court.” Kircher v. Putnam
Funds Trust, ___ U.S. ___, 126 S. Ct. 2145, 2153 (2006) (quotation and alteration
omitted).
Respondents rely in part on 28 U.S.C. § 1443, “w hich allows removal to
address the violation of a right to racial equality that is unenforceable in state
court.” H unt v. Lam b, 427 F.3d 725, 727 (10th Cir. 2005). In Johnson v.
M ississippi, 421 U.S. 213, 219 (1975), the Supreme Court established a two-part
test for removal petitions filed under § 1443. “First, it must appear that the right
allegedly denied the removal petitioner arises under a federal law providing for
specific civil rights stated in terms of racial equality.” Id. (quotation omitted).
Second, the removal petitioner must show that he or she “is ‘denied or cannot
enforce’ the specified federal rights ‘in the courts of [the] State.’” Id. (quoting
28 U.S.C. § 1443(1)); see also M artin v. Franklin Capital Corp., 251 F.3d 1284,
1290 (10th Cir. 2001) (holding burden is on party seeking removal to establish
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federal jurisdiction).
Respondents argue that Congress intended § 1443 to apply to all removal
petitions, including theirs, raising constitutional claims. But they have cited no
authority to support their argument. Indeed, the Supreme Court has held that
§ 1443 does not apply to claims asserting violations of rights under
generally-applicable constitutional or statutory provisions. Johnson, 421 U.S. at
219; accord M iller v. Lambeth, 443 F.3d 757, 761 (10th Cir. 2006). The rights
respondents claim were denied them in the quo warranto action “are not, in the
language of the statute, rights arising under any law providing for the equal civil
rights of United States citizens.” Colo. v. Lopez, 919 F.2d 131, 132 (10th Cir.
1990) (quotation omitted). Therefore, § 1443 does not apply.
Accordingly, we hold that this court is without jurisdiction to review the
district court’s orders remanding the case to the K ansas Supreme Court. As a
consequence, we do not address the merits of respondents’ claims, including those
pertaining to the merits of the quo warranto action or any related actions taken by
the Kansas State authorities. W e are similarly without jurisdiction to review the
district court’s orders denying their motions to reconsider the remand orders. See
§ 1447(d).
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B. Orders Awarding Attorney Fees and Costs
Although we lack jurisdiction over the remand orders, we do have
subject-matter jurisdiction to review the district court’s orders awarding attorney
fees and costs to petitioner. Topeka Hous. Auth. v. Johnson, 404 F.3d 1245, 1248
(10th Cir. 2005). “A court’s decision to grant a fee aw ard is reviewed for abuse
of discretion, while the underlying legal analysis is reviewed de novo.” Id.(quotation omitted). Awards of attorney fees and costs in removal proceedings
are authorized under § 1447(c). “[T]he standard for awarding fees should turn on
the reasonableness of the removal.” M artin v. Franklin Capital Corp., 546 U.S.
132, ___, 125 S. Ct. 704, 711 (2005). There is no presumption to award fees or
not to award them. Id. at 709-11. “Absent unusual circumstances, courts may
award attorney’s fees under § 1447(c) only where the removing party lacked an
objectively reasonable basis for seeking removal. Conversely, when an
objectively reasonable basis exists, fees should be denied.” Id. at 711.
Respondents do not challenge the reasonableness of the amount of attorney
fees and costs awarded to petitioner. Instead, they assert that the district court
did not comply with the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504;
28 U.S.C. § 2412(d)(1)(A). They also seek an order requiring petitioner to pay
their costs pursuant to the EAJA. The EAJA is not applicable; attorney fees w ere
awarded pursuant to § 1447(c).
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W e have reviewed the district court’s orders granting attorney fees and
costs to petitioner according to the M artin standards. See M artin, 125 S. Ct. at
709-11. W e find no error in the district court’s conclusion that respondents did
not have an objectively reasonable basis for seeking removal and we conclude
that the district court did not abuse its discretion in awarding $4,493.38 for
attorney fees and costs in case No. 06-CV-4082-JAR (appeal No. 07-3024), and
$190.80 in case N o. 06-CV-4121-JAR (appeal No. 07-3016). Respondents’
request for an award of costs is denied.
C. Judicial Bias
Respondents assert that the district court was biased against them, or at
least gave the appearance of bias. They rely on the district court’s statement in
its order denying their request to file an amended notice of removal that even if
the court had jurisdiction, it would not grant the motion because respondents did
not comply with Fed. R. Civ. P. 15(a). They maintain that generally the law does
not apply uniformly, constitutionally, or fully to pro se litigants, but they offer no
specific instances to support this charge.
Respondents also allege that the district court held an ex parte
comm unication with petitioner’s attorney that prejudiced them. They identify no
ex parte communication, however. Rather, they apparently contend that the
district court’s agreement with legal arguments made by petitioner’s attorney
demonstrated the court’s bias against them.
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“[J]udicial rulings alone almost never constitute a valid basis for a bias or
partiality motion.” Litekey v. United States, 510 U.S. 540, 555 (1994).
Furthermore, “opinions formed by the judge on the basis of facts introduced or
events occurring in the course of the current proceedings, or of prior proceedings,
do not constitute a basis for a bias or partiality motion unless they display a
deep-seated favoritism or antagonism that would make fair judgment impossible.”
Id. Respondents’ unsupported allegations are insufficient to carry their “heavy
burden” to demonstrate judicial bias. Topeka Hous. Auth., 404 F.3d at 1248.
III. Pending M otions
Respondents have filed a “M otion for Clarification” seeking
disqualification of the attorney representing the petitioner in these appeals and
reversal of the district court’s orders awarding attorney fees for his professional
services, on the ground that Kansas state statutes do not authorize the State to hire
private counsel. 2 Respondents have reproduced numerous Kansas statutes,
comprising fourteen and one-half pages of their motion. They have not explained,
however, why those statutes entitle them to relief, except to argue that quo
warranto does not apply to them and the selected statutes do not specifically
authorize the State to engage private counsel. The motion is denied because
respondents have not established grounds to disqualify the State’s counsel and
2
Respondents filed a previous motion for clarification, also seeking to
disqualify the State’s attorney, but on the ground that he was not authorized to
participate as a party. That motion was denied.
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because this court lacks jurisdiction over the district court’s order remanding the
case to the state court.
Also pending is respondents’ “M otion Requesting Order of Cease and
Desist” asking this court to order the State not to pursue its remedies under state
law and to require it to return monies already collected. Again, because this court
does not have jurisdiction over the district court’s remand order, respondents’
motion is denied.
IV. Conclusion
The pending motions are denied. The appeals from the remand orders are
DISM ISSED for lack of subject-matter jurisdiction. The orders of the district
court aw arding attorney fees and costs to the petitioner are AFFIRMED.
Entered for the Court
Deanell Reece Tacha
Chief Circuit Judge
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