CHARLES S. HAIGHT, Jr., Senior District Judge.
Michael Briscoe is a defendant in a quo warranto action brought pursuant to a Connecticut state statute by plaintiff New Haven Firefighters Local 825 ("Local 825" or "the Union") in the Superior Court of the State of Connecticut, Judicial District of New Haven. Briscoe removed the action to this Court by filing a Notice of Removal [Doc. 1] which recited that the action was being removed pursuant to the Civil Rights Removal Act, 28 U.S.C. § 1443(1).
Briscoe's theory of the case is that Local 825 filed its quo warranto action in state court "in retaliation for Briscoe's assertion of his federal rights to racial equality, rights protected by the Civil Rights Act of 1866, 42 U.S.C. § 1981, and [by] Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq." Doc. 1, ¶ 7.
Local 825 has moved to remand the case to the Connecticut Superior Court. The Union's theory of the case is that 28 U.S.C. § 1443(1) does not apply to the action it commenced in state court, and in consequence Briscoe's removal of the action to this federal court was improvidently made. Briscoe opposes a remand.
Local 825's motion for remand was fully briefed, and the Court undertook to schedule oral argument. However, during the course of that scheduling, counsel for all parties expressed the view that oral argument was not desired, and the motion could be decided on the briefs.
The Court has considered the briefs, which are interesting and ably presented. I now conclude that counsel can furnish further valuable assistance to the Court with respect to the proper resolution of the remand motion by presenting oral argument. The purpose of this Memorandum is to indicate the Court's preliminary views and identify the questions counsel should address in their arguments. It should be stressed that the Court has not reached any decision on Local 825's motion to remand the case. This exercise is intended to assist the Court in deciding the motion.
Briscoe claims to have removed the action commenced by the Union pursuant to 28 U.S.C. § 1443(1), which provides:
In Davis v. Glanton, 107 F.3d 1044, 1047 (3d Cir. 1997),
The "jurisprudence" Judge Becker had in mind consists principally of two cases the Supreme Court decided on the same day, State of Georgia v. Rachel, 384 U.S. 780 (1966), and City of Greenwood v. Peacock, 384 U.S. 808 (1966), together with Johnson v. Mississippi, 421 U.S. 213 (1975), a later Supreme Court decision that analyzed the holdings and effects of Rachel and Peacock.
Rachel, Peacock and Johnson all involved prosecutions for violations of state laws. The defendants, asserting deprivations of federal constitutional or statutory rights, invoked § 1443(1) and removed the cases to federal district courts. In the Supreme Court, one removal succeeded and the other two were remanded. In Rachel, defendants were asked to leave restaurant premises solely for racial reasons. Federal civil rights law gave them the right to remain in the restaurant after the proprietor asked them to leave, and further provided that "no State should even attempt to prosecute them for their conduct."
Peacock, 384 U.S. at 826-27 (footnote omitted). This passage echoes the two-prong test for applicability of § 1443(1) Justice Stewart included in his companion opinion in Rachel:
Rachel, 384 U.S. at 788.
In Johnson, defendants were charged in a state prosecution with conspiring to bring about a boycott of business establishments in Vicksburg, Mississippi, because of their alleged racial discrimination in employment. Defendants removed the case under § 1443(1) on the alleged grounds that the state statutes underlying the prosecutions were unconstitutional, there was no basis in fact for the charges, and their prosecution otherwise denied them their constitutional rights. The Supreme Court, in an opinion by Justice White, reviewed its holdings in Rachel and Peacock, held that "[w]ith our prior cases in mind, it is apparent, without further discussion that removal under § 1443(1) was not warranted" based solely on those allegations by defendants, and added: "Here, as in Peacock, there is no `federal statutory right that no State should even attempt to prosecute them for their conduct.'" 421 U.S. at 227 (citing and quoting Peacock). Justice Marshall's dissent contains his summary of the two earlier decisions:
421 U.S. at 229.
Analysis of these Supreme Court decisions brings us to Judge Becker's more recent opinion for the Third Circuit in Davis v. Glanton, 107 F.3d 1044 (1997). Davis applies the Rachel two-prong test of § 1443(1)'s applicability to a civil case as well as to a criminal prosecution, which is of course appropriate, since the statute by its terms applies to "civil actions or criminal prosecutions."
In some respects, the facts in Davis resemble those in the case at bar. Davis involved disputes concerning the Barnes Foundation, a Pennsylvania institution, almost all of whose Trustees were African-American. On January 18, 1996, the Barnes Trustees filed a civil rights action against a Township and its Board of Commissioners, asserting claims under 42 U.S.C. §§ 1983 and 1985(3). The Trustees alleged that the Commissioners enforced local rules and regulations "against the Foundation more aggressively than they did against other similarly situated institutions," adverse treatment that "was motivated by racial prejudice." 107 F.3d at 1046. On March 4, 1996, the Commissioners filed a defamation action against the Trustees in a Pennsylvania state court. The Commissioners claimed that the Trustees had defamed them in statements made to a local newspaper, and in "statements made in the Barnes Foundation's complaint in the federal civil rights action." Id.
Invoking 28 U.S.C. § 1443(1), the Trustees filed a notice of removal of the Commissioners' state court defamation action to the federal district court. In support of that removal, the Trustees contended that
Id. The Commissioner's retaliatory intent, the Trustees argued, should be inferred from the timing of events:
Id. at 1050. In the Trustees' view, "the mere pendency of the state court defamation action violates their federal civil rights as prescribed in § 1985(3)." Id.
The Commissioners in Davis moved to remand their defamation action to the state court. The Trustees opposed remand. The district court granted the motion and remanded the case. The Trustees appealed from the remand. The Third Circuit affirmed it.
Judge Becker's opinion for the court of appeals begins with a sensitive and perceptive observation:
Id. at 1044 (emphasis added) (lateral citations omitted). This emphasized phrase resonates in the case at bar, where emotions on all sides have been engaged since the New Haven Fire Department promotion examinations in 2003 ushered in a long and continuing winter of discontent. "Local 825's present lawsuit is payback," Briscoe says in his brief opposing remand, Doc. 21 at 1, a noun more redolent of outraged emotion than the dry and seemingly detached language of the law.
Judge Becker began by restating the test for removal the Supreme Court laid down in Rachel. In Rachel, the Third Circuit said in Davis, "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." 107 F.3d at 1047 (quoting Rachel, 384 U.S. at 788). Applying that test to the facts in Davis, the Third Circuit said:
107 F.3d at 1050.
That failure on the part of the Trustees to satisfy Rachel's second prong resulted from the fact that § 1985(3), the civil rights statute which the Trustees alleged the Commissioner violated by suing the Trustees for defamation in the state court, "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." Id. The Third Circuit affirmed the district court's order of remand. Judge Becker concluded his opinion with these reflections:
Id. at 1052.
In the case at bar, Local 825 echoes the Third Circuit's decision in Davis. Its main brief [Doc. 16-1] starts with the proposition that the Connecticut Superior Court is the proper forum to adjudicate the Union's quo warranto action, which is based on a Connecticut statute, Conn. Gen. Stat. § 52-491, and "lies only to test the defendant's right to hold office de jure," Cheshire v. McKenney, 182 Conn. 253, 256 (1980), an exercise confined to examining the terms of local contracts such as a collective bargaining agreement, city civil service rules and regulations, and a city charter. Briscoe would bear the burden "to show, by a preponderance of the evidence, a complete title to the office in dispute." Dumais v. Underwood, 47 Conn.App. 783, 788 (1998), cert. denied, 244 Conn. 918 (1998). A quo warranto action, if successful, unseats the office holder whose legitimacy was challenged, but does not fill the vacancy. If the unseated office holder "can thereafter establish his clear right to the position, he may bring an action in mandamus to seek his own appointment." New Haven Firebird Soc'y v. Bd. of Fire Comm'rs, 219 Conn. 432, 436 (1991).
Local 825 surveys this landscape, and argues (1) that "Briscoe does not demonstrate that any state law proceeding or statute is unconstitutional or otherwise denies or prevents the enforcement of his civil rights," and (2) that Briscoe "failed to demonstrate that either Title VII or § 1981 immunized him from the state court quo warranto proceeding and that such a state court proceeding would deny or prevent him from enforcing his equal civil rights." Main Brief, Doc. 16-1, at 13.
Briscoe responds in part that he "should not have to defend the merits of a lawsuit whose goal is to retaliate against and harass him for his exercise of federally-protected rights." Opposition Brief [Doc.21], at 1. "Federal law," the argument proceeds, "provides Briscoe the right to be free from such retaliation. Moreover, Briscoe should be able to counterclaim for retaliation to recoup the costs of defending from Local 825's spiteful lawsuit." Id., at 1-2. Briscoe submits that this federal court is the sole and essential forum for the vindication of his federally-protected rights, because "State law, including in particular Conn. Gen Stat. § 52-122, prohibits Briscoe from protecting or enforcing his federal rights in the quo warranto action in state court." Notice of Removal [Doc. 1], ¶ 22.
The Union's reply brief argues that Briscoe's protestations of prejudice arising from a professed inability to assert federal civil rights as defenses in the state quo warranto action are illusory, since the only issue in that case will be whether Briscoe had "a clear, legal right to occupy the position," and "no federal laws regarding civil rights are implicated in a Connecticut quo warranto proceeding." Reply Brief [Doc. 23], at 2, 3.
Briscoe's perception of what should happen next in the case is stated thus: "After removal, this Court should determine that the quo warranto action is retaliatory and violates Briscoe's federal rights and it should then dismiss the case." Notice of Removal, ¶ 23. That brisk declaration prompts some questions.
For example, let us assume that the Court denies Local 825's motion to remand, conducts a full plenary trial on all contested issues, and delivers a Ruling which arrives at two conclusions:
1. Local 825's quo warranto complaint was well founded because Briscoe did not obtain or hold his new position as Director of Public Safety Communications de jure. That appointment was not made in compliance with applicable contracts, rules, regulations and charters. Rather, Briscoe's appointment was made in disregard and violation of those sources of authority, and solely as the result of Mayor Harp's extra-legal personal choice: de whim, not de jure.
2. The decision of Local 825 officers to file the quo warranto action against Briscoe in the state court was solely motivated by their mean-spirited desire to retaliate against Briscoe for his energetic, tireless (and for the Union officers, unwelcome and inconvenient) efforts to assert his civil rights in the context of the 2003 Fire Department examinations. Local 825's professions of concern about the integrity of the collective bargaining process are no more than pretext.
The careful reader will understand that at this early stage, the Court neither anticipates nor predicts that either conclusion, or anything resembling them, would actually emerge at the end of a trial. The question I pose is purely conceptual, and it is this: When Briscoe argues that the Court should dismiss the removed quo warranto action if it was commenced for retaliatory reasons, does that mean that Conclusion (2) trumps Conclusion (1), so that, on these assumed conclusions, Briscoe retains his position even though he did not obtain or hold it de jure? If so, federal civil rights law would countermand and replace a state public policy statute. What is the source of this Court's authority to deliver such a judgment?
I will not extend this Memorandum with further questions that arise in this challenging and important case. The basic issue is whether Briscoe's removal of Local 825's state court quo warranto action, purportedly pursuant to 28 U.S.C. § 1443(1), fails to comply with the requirements of that statute as articulated in the controlling cases (as Local 825 contends in its motion to remand), or whether the removal fully complies with those requirements (as Briscoe contends in his opposition to remand). Counsel should be prepared to discuss all relevant factors and elements.
The oral argument will be held on Thursday,
It is SO ORDERED.