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WOLPOFF v. CUOMO

May 29, 1992

MARTIN WOLPOFF, et al., Plaintiffs, against MARIO M. CUOMO, et al., Defendants.


The opinion of the court was delivered by: KENNETH CONBOY

 KENNETH CONBOY, DISTRICT JUDGE:

 Four Bronx county voters brought this action against, inter alia Governor Mario Cuomo, Lieutenant-Governor Stan Lundine, the Speaker of the New York State Assembly, Saul Weprin, and the temporary president and Majority leader of the State Senate, Ralph Marino (the "legislative defendants"), in New York State Supreme Court, Bronx County on May 8, 1992. Plaintiffs asserted that the legislative defendants violated the New York State Constitution when the legislative defendants passed a New York State Senate districting plan (the "government districting plan") that created Senate districts that cross county lines. Plaintiffs have devised their own Senate redistricting plan which plaintiffs maintain is consistent with both the New York State Constitution and federal law.

 Claiming that the Fourteenth Amendment of the United States Constitution and the Federal Voting Rights Act, 42 U.S.C. 1973 et seq., mandated his vote for the government districting plan, Marino removed this action on May 14, 1992 to this Court pursuant to the "refusal clause" of 28 U.S.C. § 1443(2). Plaintiffs and Marino's legislative codefendants strenuously object to being haled into federal court, and now move that this Court remand this case to the New York State Supreme Court, Bronx County. For the reasons that follow, the motion to remand is granted.

 I. The Eleventh Amendment Bars Federal Court Jurisdiction Over This Claim

 A threshold matter that we must determine is whether we have subject matter jurisdiction over this case.

 It is well settled that the eleventh amendment to the United States Constitution prohibits federal courts from entertaining suits that seek to enforce state law against state officers. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 121, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984). However, it is also well settled that Congress may abrogate this eleventh amendment bar if Congress passes legislation pursuant to § 5 of the fourteenth amendment, see Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238, 87 L. Ed. 2d 171, 105 S. Ct. 3142 (1985), and Congress "makes its intention [to abrogate the eleventh amendment] unmistakably clear in the language of the statute." Id. at 242. "A general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment." Id. at 246.

 In the case before us, plaintiffs are suing state officials for assertedly violating state law, i.e., the New York State Constitution. Thus, unless Marino can show that the language of the refusal clause in 28 U.S.C. § 1443(2) makes unmistakably clear that Congress intended to abrogate the states' eleventh amendment immunity, *fn1" the eleventh amendment will bar this action from proceeding in federal court. *fn2"

 The refusal clause of § 1443(2) 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:

 . . . .

 (2) . . . for refusing to do any act on the ground that it would be inconsistent with [any law providing for equal rights].

 28 U.S.C.A. 1443 (1973). The statutory language of the refusal clause, as is apparent, makes no elicit reference to the eleventh amendment or to the liability of states or state officials, and thus cannot be read as abrogating the states' eleventh amendment immunity. Moreover, as noted above, the fact that the statute generally authorizes a suit in federal court is insufficient evidence of intent to establish that Congress intended the statute to do away with the states' eleventh amendment shield. See Atascadero, supra, 473 U.S. at 246. Finally, the fact that § 1443 states that "any. . . civil actions . . . commenced in a state court may be removed by the defendant," 28 U.S.C. § 1443(2) (emphasis added), does not change this analysis. See id. (holding that a statute which stated that it applied to "any recipient of Federal assistance," did not abrogate the states' eleventh amendment protections).

 Marino maintains that Hutto v. Finney, 437 U.S. 678, 57 L. Ed. 2d 522, 98 S. Ct. 2565 (1978), requires a different result. In Hutto, the Court held that the Civil Rights Attorney's Fees Awards Act of 1976 rendered the states and their officers subject to suit for such fees even though the statute's language did not state so explicitly. Id. at 693-700. Marino apparently argues that because the Hutto Court found that the statute in that case abrogated the states' eleventh amendment immunity without the statute having made that abrogation explicit in ...


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