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March 16, 1993

LAWRENCE OTWAY, TRUDY RUDNICK, JONATHAN HUTSON, and JOHN CAREY, petitioning on behalf of themselves and all others similarly situated, Petitioners,
THE CITY OF NEW YORK, RAYMOND KELLY, as Police Commissioner, and EMILY LLOYD, as Sanitation Commissioner of said City of New York, and RUTH W. MESSINGER, as President of the Borough of Manhattan, Respondents.


The opinion of the court was delivered by: KEVIN THOMAS DUFFY


 This is the next chapter of the seemingly never ending litigious saga of the New York St. Patrick's Day Parade. After the filing of my decision of February 26, 1993 in which I ordered that the city respondents issue a St. Patrick's Day parade permit to the Ancient Order of Hibernians, New York County Board of Ancient Order of Hibernians v. Dinkins et al., 93 Civ. 0281 (S.D.N.Y. 1993), the petitioners in the instant case brought this Article 78 proceeding (in the nature of prohibition and mandamus) seeking the relief by way of an order to the City of New York prohibiting:

(1) The St. Patrick's Day Parade to utilize Fifth Avenue or any City thoroughfare; (2) the utilization or employment of any of its personnel in connection therewith; and (3) the utilization of any public funds in connection therewith.

 Verified Petition at 10.

 Procedural History of This Case

 Certain procedural matters must be addressed before I can turn to the merits of this case. The matter was instituted by the filing of a Verified Petition under Article 78 in New York State Supreme Court, New York County and the issuance of an Order to Show Cause as to why the petition should not be granted. This filing occurred on March 10, 1993. On March 11, 1993, The City of New York and the municipal respondents removed this Article 78 proceeding to this court and filed answering affidavits. (These answering affidavits are the "Answer or Responsive Pleading" in an Article 78 Proceeding).

 Discovering that the matter had been removed to this court, counsel to the petitioners sought to withdraw and abandon all claims except those filed under the State Constitution by the filing in the state court of an "Amended Complaint." Apparently petitioners' counsel did not realize that jurisdiction over this matter rested solely in the federal courts upon the filing of the petition of removal, and can only be restored to the state court by an order of remand. See 28 U.S.C. § 1446(e); United States ex. rel. Echevarria v. Silberglitt, 441. F.2d 225 (2d Cir. 1971); National S.S. Co. v. Tugman, 106. U.S. 118, 122 (1882). Accordingly, the "amended complaint" was not filed in federal court.

 At argument, counsel for the petitioners also conceded that the city treasury would expend no monies on the St. Patrick's Day Parade, except for police functions and the Sanitation Department clean up during and after the Parade. It was also clear that these services are the same as those provided for any other parade. Other assertions of the Verified Petition are similarly false.

 The Merits of Petitioners' Claims

 The Verified Petition herein quotes extensively (but selectively) from the opinion of this court filed on February 26, 1993, and from certain other documents filed in the County AOH v. Dinkins, supra, action. Some of these quotes are taken totally out of context for the purpose of asserting that permitting the AOH to have its St. Patrick's Day Parade amounts to a prohibited "establishment of a religion" in violation of the First Amendment of the United States Constitution as well as Article 1, Section 3 of the State Constitution. It is assumed that the reader is totally familiar with my opinion in County AOH v. Dinkins, supra, and my holding that a parade such as the St. Patrick's Day Parade is an exercise in "free speech" as guaranteed by the United States Constitution.

 Thus, the short answer to the arguments of petitioners' counsel is merely to point out that what is sought by this action is to deny "free speech" to anyone who may seek to express religious views. When asked to define "religious" or "religion" at argument, petitioners' counsel suggested such an expansive definition that for example, it included even the Old Russian Communist Party which set out to destroy all religion. See Transcript, Oral Argument held Mar. 15, 1993 ("Tr."), at 21-22. Even Nihilism can be viewed as a "religion". If the position advocated by the petitioners were the law, then truly there would be no such thing as "free speech".

 It is somewhat amazing that those who loudly claim to be liberal and espouse the cause of "freedom of speech" would undermine that very freedom when they disagree with the message spoken by others. This Court, however, must uphold the Constitution ...

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