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Precedential or Non-Precedential: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, 

(1966), and City of Greenwood v. Peacock, 

(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, 

(1966), and City of Greenwood v.

Peacock, 

(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, 

, 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., 

, 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., 

, 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, 

(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.   

  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.”   

  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.” 

(citing Strauder v. West Virginia, 

(1880), and Commonwealth of Virginia v. Rives, 

(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.   

the

Court noted that in Hamm v. City of Rock Hill, 

, 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.”   

.   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.”   

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.”     

(emphasis added).

     In City of Greenwood v. Peacock, 

(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 

-- 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


  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.”   

     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.

  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.”    

              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, 

, 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. 

.   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, 

, 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, 

,

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, 

, 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).”   

.    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.

.    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.    

(citing 

).    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.

.     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.” 

.     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.”    

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, 

(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.   

.    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, 

, 234 (1975) (Marshall, J.,

dissenting) (citing New York v. Davis, 

(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.   

.   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, 

; Whatley v. City of

Vidalia, 

(5th Cir. 1968); Rogers v. Rucker, 

(N.D. Ga. 1993); Northside Realty Assoc., Inc. v.

Chapman, 

(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.”   

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 

(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, 

(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.”   

     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.    

(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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