109 S. Ct. 2397, 105 L. Ed. 2d 181 (1989). In Dellmuth, the Court stated:
Lest Atascadero be thought to contain any ambiguity, we reaffirm today that in this area of the law, evidence of Congressional intent must be both unequivocal and textual. In particular, we reject the approach of the Court of Appeals, according to which, "while the text of the federal legislation must bear evidence of such an intention, the legislative history may still be used as a resource in determining whether Congress' intention to lift the bar has been made sufficiently manifest." 839 F.2d, at 128. Legislative history generally will be irrelevant to a judicial inquiry into whether Congress intended to abrogate the Eleventh Amendment. If Congress' intention is "unmistakably clear in the language of the statute," recourse to legislative history will be unnecessary; if Congress' intention is not unmistakably clear, recourse to legislative history will be futile, because by definition the rule of Atascadero will not be met.
Id. at 2401. We recognize that the Supreme Court, citing legislative history, has stated in dictum that by enacting the refusal clause of 42 U.S.C. § 1443(2) Congress intended removal to be available to state officers. See Greenwood v. Peacock, 384 U.S. 808, 824, 16 L. Ed. 2d 944, 86 S. Ct. 1800 n.22 (1966). Nonetheless, because the refusal clause's text, as noted above, does not clearly and explicitly abrogate the states' eleventh amendment immunity, we are obligated under Pennhurst, Atascadero, and Dellmuth to hold that plaintiffs' suit against Marino may not be maintained in federal court. See Lac Courte Oreilles Indians v. State of Wisconsin, 749 F. Supp. 913, 915-22 (W.D. Wis. 1990) (holding that because 28 U.S.C. § 1362, the statute which gives federal courts jurisdiction over suits brought by Indian tribes, does not explicitly abrogate the states' Eleventh Amendment immunity from suit, the plaintiff Indian tribe could not maintain its action against Wisconsin in federal court).
Marino argues, without citing any authority, that because he has "federal" defenses that implicate federal concerns, the reasoning and authority of Pennhurst, a case which did not involve any "federal" defenses to state law claims, does not control this action. We disagree.
Taken to its logical conclusion, Marino's reasoning would create a huge except ion to the Supreme Court's eleventh amendment jurisprudence. In essence, Marino argues that anytime a state official has a "federal" defense to a state law claim, a federal court, if it has another basis for jurisdiction, such as pendent jurisdiction or § 1443(2), may entertain state law claims against state officers.
We do not believe that the case law sanctions such an exception. See Pennhurst,, 465 U.S. at 121 ("Neither pendent jurisdiction or any other basis of jurisdiction may override the eleventh amendment." (emphasis added)). Thus, absent Congressional abrogation of the eleventh amendment and absent the states' waivers of their eleventh amendment protections, we hold that the presence of a federal defense is not a constitutional basis under which a federal court can exercise jurisdiction over state law claims against state officers.
This result does not render the refusal clause a dead letter. Municipal officials, who are not protected by eleventh amendment immunity, see Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977), and are entitled to use the refusal clause to remove cases to federal court, see Bridgeport Education Association v. Zinner, 415 F. Supp. 715, 719-21 (D. Conn. 1976) (Newman, J.), may still utilize the refusal clause notwithstanding the Pennhurst doctrine.
In sum, we hold that the eleventh amendment forbids us from retaining jurisdiction over plaintiffs' claims against Marino, and we therefore remand this case to the New York State Supreme Court, Bronx County.
II. The Refusal Cannot Be Used By Legislators Being Sued for their Legislative Acts
Even assuming, arguendo, that the eleventh amendment does not bar this court's jurisdiction over plaintiffs' case against Marino, we would still remand the matter to the New York State Supreme Court, Bronx County. We believe that the refusal clause contained in 28 U.S.C. § 1443(2) is not available to legislators who are sued under state law strictly and exclusively for their vote or decision on a discrete matter before a state legislative body.
When Congress in 1866 passed the direct statutory antecedent of what is today 28 U.S.C. § 1443, Congress was well aware that state legislators generally are immune to suits brought against them for their legislative activities. See Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719, 731-34, 64 L. Ed. 2d 641, 100 S. Ct. 1967 (1980); Tenney v. Brandhove, 341 U.S. 367, 372-76, 95 L. Ed. 1019, 71 S. Ct. 783 (1950). It is untenable to argue, as Marino does, that Congress intended that the statute could or should be used by legislators sued solely because of their refusals to cast votes in a certain way. Moreover, Marino has not pointed to one case which has held that the refusal clause allows legislators who are sued because of the way they cast their votes, to remove their cases to federal courts.
Indeed, Marino's counsel himself admitted at a May 21 hearing before this Court that "[he] would doubt that Congress intended that an individual legislative vote was within the purview of [§ 1443(2)]." Tr. at 13.
For these reasons, we hold that a legislator's refusal to cast his or her vote a certain way cannot be considered "refusing to do any act" within the meaning of the refusal clause contained in 28 U.S.C. § 1443(2).
The motion to remand this case to the New York State Supreme Court, Bronx County is granted.
Dated: New York, New York
May 29, 1992
KENNETH CONBOY, U.S.D.J.