UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MAUREEN D. TAYLOR,
Plaintiff,
v.
Case No. 05-CV-73418-DT
JACKIE CURRIE et al.,
Defendants.
/
ORDER GRANTING PLAINTIFF’S MOTION TO REMAND AND REMANDING CASE
FOR LACK OF SUBJECT MATTER JURISDICTION
This case was removed from Wayne County Circuit Court by Defendants Jackie
Currie and Detroit Elections Commission. Pending before the court is a motion to
remand, filed by Plaintiff Maureen D. Taylor on September 6, 2005. The matter has
been fully briefed, and the court conducted a hearing on September 13, 2005.
Federal statutes permitting cases to be removed under certain circumstances are
traditionally construed such that any doubt in a particular case is to be resolved against
removal. Divesting a state court of power to hear claims involving important state
matters raises significant federalism concerns and can upset the proper relationship
between the state and federal governments. A defendant cannot simply invent an issue
of federal law to support removal to federal court; proper justification must be found in
an authorizing statute. Here, Defendants allege, but provide nothing to support, a clash
of duties between the standards required under federal law and the obligations required
of them under Michigan law and a preliminary injunction entered on September 1, 2005.
The case will be remanded.
I. BACKGROUND
Plaintiff Maureen Taylor initiated this action on August 18, 2005, in Wayne
County Circuit Court. Plaintiff’s complaint alleges various defects in the August 2, 2005
primary election for Detroit City Council.1 Plaintiff seeks “Mandamus” and injunctive
relief which would, among other things, order Defendants Jackie Currie and Detroit
Elections Commission to: (1) show cause why they should not purge their rolls of all
absentee voters whose applications were returned as undeliverable in the August 2
primary and all other persons they know not to be qualified to vote as electors in the
City of Detroit before the mailing of absentee voter applications for the November 2005
general election; (2) purge their rolls by conducting a canvas pursuant to MCL 168.515;
(3) preserve and maintain all records related to the August 2 primary. (See Compl. at
¶¶ 64-68.) In her complaint, Plaintiff indicated that she was not asserting any federal
claims and, instead, specifically reserved the right to pursue any federal claims in a
federal forum, pursuant to England v. Louisiana Bd. of Med. Examiners, 375 U.S. 411
(1964). (Compl. at ¶ 51.)
After filing her complaint, Plaintiff also filed a motion for a temporary restraining
order and for a preliminary injunction to prevent Defendants from mailing unsolicited
applications for absentee ballots for the November election. On Tuesday, August 29,
1
The results of the primary placed Plaintiff at twenty-third. Only the top eighteen
candidates will be placed on the November ballot. (Compl. at ¶ 34.) Plaintiff was 4,347
votes short of being number eighteen. (Id.)
2
2005, Chief Judge Mary Beth Kelly of the Wayne County Circuit Court granted the
motion for temporary restraining order, and on Thursday, September 1, 2005, Judge
Kelly orally granted the motion for preliminary injunction. Specifically, in a thorough and
well-reasoned opinion, Judge Kelly ruled from the bench that Plaintiff was likely to
succeed on the merits of her claim that Defendants’ actions in mailing out unsolicited
absentee ballot applications violated MCL 168.759. (See 9/2/05 Tr. at 7-8, 11-12.)
After considering the other relevant factors for preliminary injunction, Judge Kelly
enjoined “the City of Detroit from using a bulk mailing and from allowing the unsolicited
mailing of absentee voter ballot applications in the general election.” (See 9/2/05 Tr. at
12, attached to Pl.’s Br. In Opp. to Mot. to Dismiss). Judge Kelly ordered the parties to
submit a written order agreed upon as to form no later than 2:00 p.m. on the Tuesday
following Labor Day, September 6, 2005. (Id. at 13.)
On September 2, 2005, Defendants Jackie Currie and Detroit Elections
Commission removed the case to this court from Wayne County Circuit Court.2 The
purported basis for subject matter jurisdiction was federal question jurisdiction under the
14th Amendment of the United States Constitution and the Voting Rights Act of 1965
(42 U.S.C. § 1973). (Notice of Removal at ¶ 5.) According to Plaintiff, on September 2
Defendants also mailed out mass absentee voter applications in direct contravention of
Judge Kelly’s order.3
2
As noted in the court’s September 14, 2005 “Order to Show Cause,” there is
some doubt as to whether Defendant Detroit Elections Commission actually consented
to the removal of this case under 28 U.S.C. § 1441.
3
Defendants do not appear to dispute this allegation. Indeed, beginning at the
court’s September 8, 2005, status conference, this issue has been broached more than
3
On September 6, 2005, Defendants filed a 12(b)(6) motion to dismiss, arguing
that Defendants do not have the power to do the majority of what Plaintiff seeks
(including her general attempt to be placed on the November ballot). Defendants also
argue that it would violate federal law to provide part of the relief Plaintiff seeks (i.e., to
not send out the unsolicited applications for absentee ballots). Defendants argue that
not mailing the absentee ballot applications would violate the Voting Rights Act, 42
U.S.C. § 1971, because it would place a restriction only on the City of Detroit, which is
predominately African-American. Defendants further argue that not mailing the
applications would violate the Voting Accessibility for the Elderly and Handicapped Act,
42 U.S.C. § 1973ee. (Def.’s Mot. Br. at 5-7.) Plaintiff filed her response to this motion
on September 7, 2005, in which she argued that Defendant’s removal and motion to
dismiss represent only an attempt to avoid Judge Kelly’s injunction.
On September 6, 2005, Plaintiff filed a “Motion to Remand or, in the Alternative,
for Order to Show Cause Why Defendants Should Not be Held in Contempt . . .,”
arguing that her Complaint raises only state law issues and should therefore be
remanded. She also argues that Defendants should be held in contempt for their
once by Plaintiff, and each time defense counsel has quickly pointed out that Judge
Kelly’s order was “only” stated orally from the bench but not reduced to writing before
Defendants’ removal on the day following. The details underlying Defendants’ apparent
violation of the state court’s order are not relevant to this court’s jurisdictional analysis
(see footnote 4, supra). Nonetheless, the court cannot but wonder how gladly Judge
Kelly will suffer Defendants’ reasoning if in the coming days they continue to assert the
same excuse for violation of the injunction.
4
alleged violation of Judge Kelly’s injunction and a receiver should be appointed in light
of their purported willful refusal to abide by the state court’s order.4
On September 7, 2005, Defendants filed a “Supplemental Notice of Removal,” in
which they give “supplemental notice” that the basis for subject matter jurisdiction is the
15th Amendment of the United States Constitution, and the Voting Rights Act.
Specifically, Defendants allege that this lawsuit attempts to place a restriction only upon
the City of Detroit, which is predominately an African-American city. Defendants argue
that these restrictions violate the Voting Rights Act. 42 U.S.C. §§ 1971 & 1973.
On September 7, 2005, Plaintiff filed a supplemental brief in support of her
motion to remand, in response to Defendants’ supplemental notice of removal. Plaintiff
argues that Defendants have still failed to articulate a basis for subject matter
jurisdiction and Plaintiff should be awarded costs and fees.
On September 8, 2005, the court conducted a status conference and discussed,
among other things, the court’s jurisdictional concerns. As agreed upon by counsel, the
court allowed Defendants time to brief the issue of subject matter jurisdiction. Thus, on
September 9, 2005, the court issued its “Order to Show Cause,” directing Defendants to
show cause why this case should not be remanded to Wayne County Circuit Court for
lack of subject matter jurisdiction.
4
Plaintiff also argues that Defendants sought removal solely to avoid the
implications of Judge Kelly’s injunction. The court declines to address this issue
because Defendants’ reason for removal is irrelevant. See White v. Wellington, 627
F.2d 582, 586 (2d Cir. 1980) (“[T]he right to remove is statutory, jurisdictional and
absolute, regardless of motivation, when it is found to exist.”).
5
On September 12, 2005, Defendants contemporaneously filed a “Second
Supplemental Notice of Removal,” and their combined response to the courts “Order to
Show Cause” and to Plaintiff’s “Motion for Remand . . . .” Defendants assert that
subject matter jurisdiction exists over this controversy pursuant to 28 U.S.C. § 1441, the
general removal statute, and 28 U.S.C. § 1443, the civil rights removal statute. Further,
Defendants again rely on the Voting Rights Act and the 14th and 15th Amendments of
the United States Constitution.5
The court conducted a hearing on the jurisdictional matter on September 13,
2005. At the hearing, the court allowed both sides time to argue their respective
positions and elaborate on any matters which they had raised in their previously filed
briefs. At no point did either side request additional time to present further argument or
evidence to the court. Nonetheless, on September 14, Defendants filed a “Request to
Schedule USC 1446(C)(5) Evidentiary Hearing,” arguing that an evidentiary hearing was
required under 28 U.S.C. § 1446(c)(5). After Plaintiff filed a response to this motion,
Defendants withdrew the motion.6
5
Defendants also filed a supplemental response brief on September 13, 2005.
6
The fact that Defendants’ motion was withdrawn immediately after receiving
Plaintiff’s response suggests to the court that Defendants did not comply with the local
rule requiring concurrence before filing motions. See E.D. Mich. LR 7.1(1).
Defendants’ belated request was facially invalid, and if Defendants had sought
concurrence it would have saved the additional time and expense incurred by Plaintiff
and this court. The sole basis for Defendants’ request was 28 U.S.C. § 1446(c)(5),
which by its express terms applies only to the removal of criminal prosecutions.
Moreover, the additional “evidence” which Defendants sought to submit to the court (“a
review of the hearing held in the Circuit Court” and “some focused testimony on the Civil
Rights violations being alleged”) was both unnecessary and largely duplicative. The
6
II. STANDARD
It is axiomatic that federal courts are courts of limited jurisdiction. The removing
defendants bear the burden of establishing federal subject matter jurisdiction. See
Ahearn v. Charter Township of Bloomfield, 100 F.3d 451, 453-454 (6th Cir. 1996) (citing
Carson v. Dunham, 121 U.S. 421, 425-26 (1887)). “Only state-court actions that
originally could have been filed in federal court may be removed to federal court by the
defendant.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Thus, in cases such
as this one where there is no diversity of citizenship, federal-question jurisdiction is
required. Id.
Removal statutes should be given strict construction. Shamrock Oil & Gas Corp.
v. Sheets, 313 U.S. 100, 108-109 (1941) (“‘Due regard for the rightful independence of
state governments, which should actuate federal courts, requires that they scrupulously
confine their own jurisdiction to the precise limits which the [the removal] statute has
defined.’”) (quoting Healy v. Ratta, 292 U.S. 263, 270 (1934)); see also Brierly v.
Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 534 (6th Cir. 1999) (“In interpreting
the statutory language, we are mindful that the statutes conferring removal jurisdiction
are to be construed strictly because removal jurisdiction encroaches on a state court's
jurisdiction.”). Any doubt should be resolved in favor of remand. Brierly, 184 F.3d at
534. To that end, the Sixth Circuit has held that “in the interest of comity and
court had already received a transcript of the relevant portion of Judge Kelly’s ruling,
and had heard substantial argument and proffers of proof relating to Defendants’
argument regarding the alleged civil rights violation.
7
federalism, federal jurisdiction should be exercised only when it is clearly established.”
Id.
III. DISCUSSION
Defendants essentially make two arguments in support of their claim of subject
matter jurisdiction. First, they argue that subject matter jurisdiction exists pursuant to 28
U.S.C. § 1441, the general removal statute. Next, they argue that subject matter
jurisdiction exists pursuant to 28 U.S.C. § 1443, the civil rights removal statute.
A. 28 U.S.C. § 1441
Defendants first contend that this case is removable under 28 U.S.C. § 1441(a),
which provides, in part:
Except as otherwise expressly provided by Act of Congress, any civil
action brought in a State court of which the district courts of the United
States have original jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for the district and
division embracing the place where such action is pending.
28 U.S.C. § 1441(a). Specifically, Defendants contend that this case “impacts upon the
substantive voting rights and civil rights laws. Further, because Plaintiff made specific
references to federal voting rights laws in both her complaint and the Motion for
Injunctive Relief, it is arguable that the case is one in ‘which the district courts of the
United States have original jurisdiction.’” (Defs.’ Mot. Br. at 4 (emphasis omitted).) The
court disagrees.
“The presence or absence of federal-question jurisdiction is governed by the
‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a
federal question is presented on the face of the plaintiff's properly pleaded complaint.”
8
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (citing Gully v. First National Bank,
299 U.S. 109, 112-13 (1936)). “The rule makes the plaintiff the master of the claim; he
or she may avoid federal jurisdiction by exclusive reliance on state law.” Id.
Here, Plaintiff expressly reserved the right to pursue federal claims in a separate
action in federal court. (Compl. at ¶ 51.) Mere reference to a federal law or federal right
is not, as Defendants argue, enough to confer subject matter jurisdiction in this matter.
This is especially true where, as here, the reference was to exclude federal claims from
the complaint. Indeed, the complaint seeks to assert only rights arising under state
statutes against state officials in relation to a state election. It is hard to imagine a more
quintessentially state case. See, generally, Katzenbach v. Morgan 384 U.S. 641, 647
(1966) (describing the state’s interest in its own elections).
The fact that Defendants intend to raise a defense under federal law is also not
enough to remove under § 1441. “When determining whether removal is proper, a court
may only examine the face of the complaint and cannot rely on an anticipated defense
raised by defendants.” Neal v. Wilson, 920 F.Supp. 976, 983 (E.D. Ark. 1996) (citing
Franchise Tax Bd. of California v. Constr. Laborers Vacation Trust for S. California, 463
U.S. 1 (1983)). In other words, it is Plaintiff’s allegations, not Defendants’, that
determine whether a federal question is presented. Id. (citing Phillips Petroleum Co. v.
Texaco, Inc., 415 U.S. 125 (1974)) (“A federal question must be an essential element of
the plaintiff’s complaint to provide grounds for removal.”).
Because Plaintiff’s well-pleaded complaint does not depend on the resolution of a
substantial issue of federal law, the court finds that Defendants have not met their
9
burden of establishing the applicability of § 1441. See Franchise Tax Bd. of California
v. Constr. Laborers Vacation Trust for S. California, 463 U.S. 1, 27-28 (1983)
(“Congress has given the lower federal courts jurisdiction to hear, originally or by
removal from a state court, only those cases in which a well-pleaded complaint
establishes either that federal law creates the cause of action or that the plaintiff’s right
to relief necessarily depends on resolution of a substantial question of federal law.”).
B. 28 U.S.C. § 1443
Defendants next argue that removal is proper under 28 U.S.C. § 1443, which
contains special removal provisions in civil rights cases. Specifically, § 1443 provides:
Any of the following civil actions or criminal prosecutions, commenced in a
State court may be removed by the defendant to the district court of the
United States for the district and division embracing the place wherein it is
pending:
(1) Against 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;
(2) For any act under color of authority derived from any law providing for
equal rights, or for refusing to do any act on the ground that it would be
inconsistent with such law.
28 U.S.C. § 1443. Defendants contend that they are entitled to remove this case under
both subsections of §1443.
1. 28 U.S.C. § 1443(1)
Defendants have not persuaded the court that §1443(1) is applicable to this
case. Even assuming that Defendants can constitute a “person” for purposes of §
1443(1), it is not clear to the court what “right” that Defendants claim they are being
10
denied. Defendants argue generally that “Defendant Currie has been denied the right to
act pursuant to Federal Law,” (Def.’s 9/12/05 Resp. Br. at 7), but the “right to act
pursuant to Federal Law” is not a right contemplated by § 1443(1).
Instead, § 1443(1) applies only when Defendants can demonstrate two factors.
First, Defendants must show ”(1) that the right allegedly denied the removal Petitioner
arises under federal law providing for specific ‘civil rights stated in terms of racial
equality;’ and (2) that the removal Petitioner is denied or cannot enforce specified
federal rights in state courts.” McQueary v. Jefferson County, No. 86-5505, 1987 WL
37567, *2 (6th Cir. June 2, 1987) (quoting Johnson v. Mississippi, 421 U.S. 213, 219
(1975). Indeed, the cases to which Defendants cite expressly hold that the removing
defendants must establish that they are being denied a right based on racial equality.
See Pennsylvania ex rel. Rothenberg v. Beers 450 F.2d 783, 784 (3rd Cir. 1971)
(affirming remand where defendant’s 14th Amendment gender-based argument did
“not, and could not, allege a denial of equal rights based on race”); see also Georgia v.
Rachel, 384 U.S. 780, 792 (1966) (“[T]he defendants’ broad contentions under the First
Amendment and the Due Process Clause of the Fourteenth Amendment cannot support
a valid claim for removal under § 1443, because the guarantees of those clauses are
phrased in terms of general application available to all persons or citizens, rather than in
the specific language of racial equality that § 1443 demands.”). Here, Defendants have
made no showing--nor, indeed, any allegation--that they themselves have been denied
a “specific civil right stated in terms of racial equality.” At most, Defendants have
alleged that Judge Kelly’s order will force them to deny to others their civil rights.
11
Defendants have not offered any support that they may vicariously assert the civil rights
of others under § 1443(1). Instead, such claims are properly analyzed under §
1443(2).
2. 28 U.S.C. § 1443(2)
Defendants also seek removal under § 1443(2), which provides a basis for
removal “[f]or any act under color of authority derived from any law providing for equal
rights, or for refusing to do any act on the ground that it would be inconsistent with such
law.” 28 U.S.C. § 1443(2) (emphasis added). The first clause of this subsection
confers the right of removal only upon federal officers. Greenwood v. Peacock, 384
U.S. 808, 824 (1966). The second clause of this subsection, however, is available only
to state officers. Id. at 824 n.22. This clause, known as the “refusal clause,” was
“intended to enable State officers, who shall refuse to enforce State laws discriminating
. . . on account of race or color, to remove their cases to the United States courts when
prosecuted for refusing to enforce those laws.” Id. (quoting legislative history of 28
U.S.C. § 1443(2)).
Although there is not an abundance of law addressing § 1443(2), courts
interpreting this statute have held that it may be invoked “when removing defendants
make a colorable claim that they are being sued for acting ‘pursuant to a state law
which, though facially neutral, would produce or perpetuate a racially discriminatory
result as applied.’” White v. Wellington, 627 F.2d 582, 587 (2d Cir. 1980); see also
Greenberg v. Veteran, 889 F.2d 418, 421 (2d Cir. 1989) (same). To that end, § 1443
requires “a colorable conflict between state and federal law leading to the removing
12
defendant’s refusal to follow plaintiff’s interpretation of state law because of a good faith
belief that to do so would violate federal law.” Id. (quotations omitted); Alonzo v. City of
Corpus Christi, 68 F.3d 944, 946 (5th Cir 1995) (same); see also Brown v. Florida, 208
F.Supp. 2d 1344, 1350 (S.D. Fla. 2002) (requiring a “colorable conflict between state
and federal law”). The “good faith belief” is to be tested objectively; defendants cannot
simply assert an unsupportable subjective belief that they are being asked to violate
federal law. White, 627 F.2d at 587.
In this case, the court cannot find that Defendants have “a good faith belief” that
they are being forced to violate federal civil rights laws. This is not a situation, for
example, where Defendants are being placed “in the intolerable position of having to
choose which of the conflicting court orders to follow in upholding its residents’ civil
rights.” See Alonzo, 68 F.3d at 946 (internal quotations omitted). Instead, Defendants
make the strained argument that Judge Kelly’s injunction, applied only to the City of
Detroit and its largely African-American population, will force Defendants to violate the
Voting Rights Act. Defendants argue that Judge Kelly’s injunction impermissibly
restrains the right to vote enjoyed by African-American, elderly and handicapped voters.
The sole basis for this argument is that Detroit voters will now have to request their own
applications for absentee ballots, rather than receive unsolicited applications from the
Clerk. Defendants assert that voters in other cities do not have to do this, and thus
Judge Kelly’s injunction violates federal law.
This argument simply does not present a “colorable conflict” sufficient to justify
removal. See Alonzo, 68 F.3d at 946. (“If no colorable conflict between state and
13
federal law exists then removal is improper.”). First, Judge Kelly’s order in no way
restricts the right to vote of any citizen–whether African-American, Caucasion, elderly,
handicapped or otherwise. The injunction merely requires Defendants to abide by MCL
168.759. Any eligible person seeking to vote by absentee ballot in Detroit may still do
so by requesting and completing an application for an absentee ballot. Second, and
more importantly, even if Judge Kelly’s order somehow affected an individual’s right to
vote, it in no way accomplishes the discriminatory result necessary to invoke § 1443(2).
The court rejects Defendants’ argument that the order invidiously discriminates against
the City of Detroit, which has a predominately African-American population. That the
injunction only applies to the city of Detroit is not remarkable, in that only City of Detroit
officers are involved in this lawsuit. Under Defendants’ argument, any time a state
court ruled relative to voting procedures affecting Detroit litigants it would necessarily
implicate the Voting Rights Act. This result is not only illogical,7 but it also raises serious
Rooker-Feldman concerns.8
7
Defendants’ contention that only the City of Detroit will be bound by Judge
Kelly’s ruling is simply not correct. Assuming Judge Kelly’s preliminary injunction ripens
into a permanent injunction (which at this point is still just a speculative assumption), her
finding that mailing unsolicited absentee ballot applications violates a Michigan statute
of general application will necessarily affect all Michigan elections. If Judge Kelly’s
order is litigated through the appellate system, the Michigan court’s will address the
interpretation of Michigan law, specifically as to this action but generally as to all
elections. Whether Judge Kelly’s order is affirmed or reversed, it will become binding
on all Michigan cities under the doctrine of precedent. Indeed, even if Judge Kelly’s
order were not appealed, it is nonetheless of precedential value to all Michigan cities.
8
Under the Rooker-Feldman doctrine, inferior federal courts lack authority to
perform appellate review of state court decisions. See, e.g., Hart v. Comerica Bank,
957 F. Supp. 958, 968-70 (E.D. Mich. 1997) (describing the Rooker-Feldman Doctrine).
Under Defendants’ argument, whenever a state court judge issued an order which
would arguably affect the civil rights of a city with a predominately minority population,
14
It is not sufficient to invoke § 1443 by asserting a general reliance on the Voting
Rights Act; Defendants must show how that reliance is objectively reasonable. See
Sexson v. Servaas, 33 F.3d 799, 803 (7th Cir. 1994). Here, Defendants’ subjective
belief that Judge Kelly’s order forces them to violate federal law is objectively
unreasonable. See News-Texan, Inc. v. City of Garland, Tex,. 814 F.2d 216, 219 (5th
Cir. 1987) (holding that the defendant’s interpretation of Voting Rights Act could not
justify federal subject matter jurisdiction for purposes of § 1443(2)). As one court has
held, a “vaguely defined claim” that a state official’s actions would “be ‘inconsistent with’
the equal protection clause” is not enough to allow removal under § 1443(2). Dodd v.
Rue, 478 F. Supp. 975, 979 (S.D. Ohio 1979) (“We think defendant’s apprehension,
however well intentioned or subjectively felt, is an insufficient substitute for an expressly
claimed, direct and immediate clash of opposing duties.” (quotation omitted)); see also
Stephenson, 180 F. Supp. 2d at 785 (finding allegation that defendants were being
forced to act “inconsistent with or in violation of the Voting Rights Act and the equal
protection principles of the Constitution of the United States” insufficient to invoke §
1443(2) where the defendants reliance on the refusal clause was “speculative”).
Defendants cannot create an issue of federal law by making an unsupportable
invocation of § 1443. Here, there is no direct or immediate clash of duties between
federal and state law. The court is aware of no federal law which requires the
unsolicited mailing of absentee ballots which Defendants seek to accomplish.
the action would become immediately removable to federal court, essentially to appeal
that state court’s ruling. The proper course of action, however, is to challenge the state
court’s decision within the state court appellate system.
15
Presumably, Defendants seek to remove in order to ask this court to find that Judge
Kelly’s order was in error and that they are justified in refusing to obey it. Such a goal,
however, does not properly utilize the protections of § 1443. See Stephenson, 180 F.
Supp. 2d at 785 (“[I]t is not entirely clear what the defendants refuse to do, except fail to
comply with state constitutional mandates.”); see also Greenberg, 889 F.2d at 421 (“The
purpose of the ‘refusal clause’ is to provide a federal forum for suits against state
officers who uphold equal protection in the face of strong public disapproval.”). The
court will not allow Defendants to take haven in federal court under the guise of
providing equal protection for the citizens of Detroit but with a goal of perpetuating their
violation of a non-discriminatory state law.
Moreover, underlying the court’s analysis of § 1443(2) is the rule that “removal
statutes are to be strictly construed against removal, with any doubt in a particular case
to be resolved against removal.” Stephenson v. Bartlett, 180 F. Supp. 2d 779, 784
(E.D.N.C. 2001) (quoting Storr Office Supply v. Radar Bus. Sys., 832 F.Supp. 154
(E.D.N.C. 1993). “This strict construction is required because divesting the state courts
of power to hear claims raising important state matters raises significant federalism
concerns.” Id. at 784-785.
The Sixth Circuit has held that § 1443(2) “was designed to protect state officers
from being penalized for failing to enforce discriminatory state laws or policies by
providing a federal forum in which to litigate these issues.” Detroit Police Lieutenants
and Sergeants Ass’n v. City of Detroit, 597 F.2d 566, 568 (6th Cir. 1979). These
concerns are not implicated here. Judge Kelly’s injunction, which requires only that the
16
City of Detroit abide by state law, does not implicate any “law providing for equal rights.”
See 28 U.S.C. § 1443(2). As the Stephenson court found:
Plaintiffs’ complaint only raises issues of state law. It is defendants’
defense under the Voting Rights Act, namely that they cannot comply with
the state constitution because of its effect on the voting rights of specified
constituent groups, that arguably raises a federal issue. As the Supreme
Court has made clear, however, defendants “cannot, merely by injecting a
federal question into an action that asserts what is plainly a state-law
claim, transform the action into one arising under federal law.” Caterpillar,
Inc. v. Williams, 482 U.S. 386, 399, 107 S.Ct. 2425, 96 L.Ed.2d 318
(1987). To allow removal in this case would give defendants the power to
select the forum in which the claim is litigated.
Stephenson, 180 F. Supp. 2d at 786. The court finds this reasoning directly applicable
to the facts of the instant case. Removal is not allowed under § 1443(2).
Defendants have failed to identify any valid basis for subject matter jurisdiction
over this state law controversy, and the court will remand this action to state court.
IV. CONCLUSION
IT IS ORDERED that Plaintiff’s motion to remand [Dkt # 3] is GRANTED, and this
case is REMANDED to Wayne County Circuit Court for lack of subject matter
jurisdiction.
S/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: September 14, 2005
17
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, September 14, 2005, by electronic and/or ordinary mail.
S/Lisa G. Wagner
Case Manager and Deputy Clerk
(313) 234-5522
S:\Cleland\JUDGE'S DESK\Even Orders\05-73418.TAYLOR.Remand.Final.wpd 18
