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In re Application of Myles Greenberg and Frances M. Mulligan

decided: November 7, 1989.

IN THE MATTER OF THE APPLICATION OF MYLES GREENBERG AND FRANCES M. MULLIGAN, PETITIONERS-APPELLEES,
v.
ANTHONY F. VETERAN, SUPERVISOR AND SUSAN TOLCHIN, TOWN CLERK, RESPONDENTS-APPELLANTS



Appeal from an order of the District Court for the Southern District of New York (Goettel, J.) remanding the case to the New York Supreme Court, Westchester County, for lack of subject matter jurisdiction under the "refusal clause" of 28 U.S.C. § 1443(2), a civil rights removal provision.

Oakes, Chief Judge, Lumbard, and Pierce, Circuit Judges.

Author: Lumbard

LUMBARD, Circuit Judge.

May a town official who is sued in state court for acting, as he believes, to prevent the violation of rights guaranteed by the federal constitution remove such a suit to federal court under the "refusal clause" of the civil rights removal statute?

We think he may. Anthony F. Veteran and Susan Tolchin, the Town Supervisor and Town Clerk,*fn1 respectively, of Greenburgh, New York, appeal from an order, issued sua sponte by the District Court for the Southern District, remanding the case to the New York Supreme Court, Westchester County. Appellees Myles Greenberg and Frances M. Mulligan brought a special proceeding in the New York Supreme Court in December 1988, pursuant to Article 78 of the New York Civil Practice Law and Rules, seeking judicial review of Veteran's denial of their petition to secede from Greenburgh and to incorporate a new village. Veteran then removed the action to the district court on January 30, 1989 under the "refusal clause" of 28 U.S.C. § 1443(2). Though Greenberg and Mulligan did not contest removal, the district court on its own motion on April 17, 1989 remanded the case to the New York Supreme Court for lack of jurisdiction. 710 F. Supp. 962.

According to Judge Goettel, the removal petition did not, and Veteran in good faith could not, allege a conflict between state and federal law. He held that such a conflict is a prerequisite to removal under the "refusal clause." He found no conflict because the removal petition defended Veteran's refusal to incorporate the village on both state and federal constitutional grounds. We believe that the removal petition, in alleging facts which raise a substantial question under federal equal protection law as a reason for refusing to incorporate the proposed village under the New York Village Law, alleged the requisite conflict between state and federal law, notwithstanding that the allegations also implicate state equal protection law as further justification for denying incorporation. Accordingly, we reverse.

In January 1988, the Town of Greenburgh joined Westchester County and a not-for-profit organization called "West HELP" in proposing the construction of a shelter for 108 homeless families on property in Greenburgh owned by Westchester County. It is undisputed that most of the 108 homeless families are black.

In February 1988, manifesting what the district court termed "the NIMBY syndrome" (Not In My Back Yard), residents of Greenburgh opposed to the construction of the proposed shelter formed the Coalition of United Peoples, Inc., or COUP, to stop the project. Pursuant to New York Village Law ("Village Law") §§ 2-200 to 2-258 (McKinney 1973 & Supp. 1989), COUP prepared a petition to incorporate part of Greenburgh as the Village of Mayfair Knollwood; the proposed Village would include the site of the proposed shelter. The district court opinion notes that since Westchester County owns the land on which the shelter would be built, incorporation could not stop the project directly but would enable COUP to tie up the project with red tape and zoning requirements.

On September 14, 1988, pursuant to Village Law § 2-202, COUP presented the incorporation petition to Veteran, who, as required by Village Law § 2-204, convened a public hearing on November 1 at which oral testimony concerning the project was received. Veteran adjourned the hearing until November 21 to receive and consider written comments on the incorporation petition.

On December 1, Veteran denied the incorporation petition on six grounds: four aspects of the petition process were defective under the Village Law; the boundaries of the proposed village, where ascertainable, evinced an intent to exclude black residents and thus violated the state and federal constitutions; and obstruction of the shelter project would violate the state and federal constitutions.

On December 13, Greenberg and Mulligan, two COUP members, filed this Article 78 proceeding in the New York Supreme Court seeking judicial review of Veteran's denial of their incorporation petition. The Article 78 petition alleged five grounds for reversal: Veteran committed three improprieties under the Village Law in conducting the hearing and receiving evidence; Veteran's inquiry into the intent of the incorporation petitioners exceeded his statutory authority, or, alternatively, his finding of discriminatory intent was not supported by sufficient evidence; and Veteran's denial violated the First Amendment rights of the incorporation petitioners.

On January 25, 1989,*fn2 Veteran petitioned the district court to remove the Article 78 proceeding to federal court, citing 28 U.S.C. §§ 1443(2) and 1441(b). Section 1443 permits removal to federal court by a defendant*fn3 in any civil action or criminal prosecution

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.

§ 1443(2) (emphasis added). The emphasized portion is known as the "refusal clause." Section § 1441(b) permits general federal question removal. In his petition, Veteran asserted primarily that he is entitled to remove under the "refusal clause" because the Article 78 proceeding, a civil action, was brought against him for his refusing to grant the incorporation petition on the ground that it would be inconsistent with the equal protection provisions of the state and federal constitutions. The instant case was assigned to Judge Goettel, before whom Jones v. Deutsch, 88 Civ. 7738, a related case, was already pending. In Jones, the NAACP, the National Coalition for the Homeless, certain homeless people of Westchester and certain citizens of Greenburgh brought suit on November 1, 1988 in the Southern District against COUP, Veteran and others, alleging a civil rights conspiracy under 42 U.S.C. ...


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