Bridgeport Ed. Ass'n v. Zinner, Civ. No. B-74-353.

• Citation: 415 F. Supp. 715
• Decision Date: 08 June 1976
• Docket Number: Civ. No. B-74-353.
• Court: United States District Courts. 2nd Circuit. United States District Court (Connecticut)
• Parties: BRIDGEPORT EDUCATION ASSOCIATION et al. v. Howard ZINNER et al.

415 F. Supp. 715

BRIDGEPORT EDUCATION ASSOCIATION et al. v. Howard ZINNER et al.

Civ. No. B-74-353.

United States District Court, D. Connecticut.

June 8, 1976.

Raymond C. Lyddy and E. Stanton Kennedy, Bridgeport, Conn., for plaintiffs.

Warren W. Eginton, Stamford, Conn., for defendants.

RULING ON MOTION TO REMAND

NEWMAN, District Judge.

This motion to remand a removed civil lawsuit to state court raises important and novel issues concerning the infrequently construed "refusal" provision of the civil rights removal statute, 28 U.S.C. § 1443(2).¹ The suit was brought in the Connecticut Court of Common Pleas for Fairfield County by the Bridgeport Education Association and several Bridgeport public school teachers against the members of the Bridgeport Board of Education, the city comptroller, the acting school superintendent, and three persons appointed on an "acting" basis by the Board on August 26, 1974, to positions of responsibility within the Bridgeport public school system. Plaintiffs alleged that these three appointments were made in violation of the City Charter, the Rules of the City Civil Service Commission, and the teachers' contract between the Association and the Board. Specifically, plaintiffs contend (1) that the appointments were made without publicizing the existence of the positions or holding examinations for filling them, (2) that the Board does not intend to hold examinations nor appoint from eligibility lists, and (3) that required qualifications and standards have not been established with respect to one appointment. The removal petition, as amended, filed on behalf of the defendant Board members and the acting superintendent,² alleges that "they refused to make appointments in accordance with the Charter and Rules on the ground that to do so would be inconsistent with Title 42, United States Code, Sections 2000e et seq. and 1981 et seq." In effect, the defendants contend that following civil service rules, instead of making the minority group appointments here challenged, would have violated federal statutes barring racial discrimination in employment.

The removing defendants allege that the second clause of § 1443(2) entitles them to remove the plaintiffs' suit to this Court, i. e., that they are refusing to follow the Charter and civil service rules because doing so would be "inconsistent with" federal laws providing for equal rights. Plaintiffs' motion to remand was considered by Magistrate Latimer, who presented to this Court a proposed ruling that would have granted the motion. This Court has concluded that the motion ought to be denied. The issue, however, is not free from doubt, and because the Magistrate's discussion forcefully argues the position in favor of remand and illuminates the issues involved, the principal portions of his proposed ruling are set forth as an appendix to this opinion.

Several issues arise in determining whether the suit against the defendants is removable under the "refusal" clause of § 1443(2): what defendants may invoke the clause, what actions of defendants are covered, what federal laws may be relied upon to justify a refusal to act, and what is the standard by which to test whether the defendants' actions are "inconsistent with" federal law. As Judge Friendly has observed, "The interpretative problems are difficult, due to the age of the statute, the lack of decisions thereunder and the mangling which it has undergone. . . ." New York v. Galamison, 342 F.2d 255, 258 (2d Cir. 1965). His comments, directed primarily to § 1443(1) (the "cannot enforce" clause) and the first clause of § 1443(2) (the "color of authority" clause), apply as forcefully to the second clause of § 1443(2) (the "refusal" clause).

The first provision permitting removal in a civil rights context by a defendant sued for not acting in a certain way was § 5 of the Habeas Corpus Suspension Act, Act of March 3, 1863, C. 61, § 5, 12 Stat. 756. Those entitled to remove were "any officer, civil or military, or . . . any other person." They could remove when sued for "any act omitted to be done" during the Civil War "by virtue or under color of any authority derived or exercised by or under the President of the United States, or any act of Congress." To whatever extent the ejusdem generis canon aids construction in this context, the phrase "any act omitted" followed "any arrest or imprisonment made, or other trespasses or wrongs done or committed."

Three years later Congress formulated a civil rights removal statute, § 3 of the Civil Rights Act of 1866, Act of April 9, 1866, C. 31, § 3, 14 Stat. 27, which is the direct antecedent of § 1443. The Act authorized removal by "any officer, civil or military, or other person." As passed by the Senate, the bill provided that they could remove when sued for "any arrest or imprisonment, trespasses, or wrongs done or committed by virtue or under color of authority derived from this act or the act to enlarge the powers of the Freedmen's Bureau." In the House this last reference to a source of authority for the acts done was broadened to read "the act establishing a Bureau for the Relief of Freedmen and Refugees, and all acts amendatory thereof." Cong.Globe, 39th Cong., 1st Sess. 1115 (1863). Then on March 8, 1866, the House floor leader of the bill, Representative Wilson, offered an amendment to insert after the words "amendatory thereof" the phrase "or for refusing to do any act upon the ground that it would be inconsistent with this act." Id. at 1271. No explanation was made at that time. The bill was recommitted to the Judiciary Committee on March 9, id. at 1296, and reported back to the House floor on March 13, id. at 1366. On that date, several amendments, including Wilson's "refusing to act" amendment, were adopted. In presenting it for approval, Wilson said, "I will state that this amendment is intended to enable State officers, who shall refuse to enforce State laws discriminating in reference to the rights created by § 1 of the bill on account of race or color, to remove their cases to the United States courts when prosecuted for refusing to enforce those laws." Id. at 1367. The House received no other explanation or discussion of the amendment, despite Wilson's assurance, just prior to voting on final passage, that "No amendment has been offered by the committee, except the last one concerning appellate jurisdiction of the Supreme Court, that has not been fully discussed while the bill was pending before the House on a former occasion." Ibid.

In the Senate the significance of the "refusing to act" amendment was wholly obscured by its adoption along with the amendment broadening the statutory authority for acts done that were a permissible basis for removal. On motion of Senator Trumbull, and without discussion, the phrase, "to enlarge the powers of the Freedmen's Bureau," after the words "an act" was replaced by the following language: "establishing a Bureau for the Relief of Freedmen and Refugees, and all acts amendatory thereof, or for refusing to do any act upon the ground that it would be inconsistent with this act." Id. at 1413.

The Revised Statutes of 1874 carried forward § 3 of the Civil Rights Act of 1866 as § 641 and included language permitting removal when suit was brought against "any officer, civil or military, or other person, for any arrest or imprisonment or other trespasses or wrongs, made or committed by virtue of or under color of authority derived from any law providing for equal rights as aforesaid, or for refusing to do any act on the ground that it would be inconsistent with such law. . . ."

The 1948 codification, in dividing the removal provision into the present two subsections of § 1443, made the following changes in wording, as Judge Friendly has pointed out in Galamison, 342 F.2d at 261: the words "any officer, civil or military, or other person" were dropped, and nothing was supplied to replace them, and the words "any arrest or imprisonment or other trespasses or wrongs, made or committed by virtue of or under color of authority derived from any law providing for equal rights as aforesaid" were contracted to "any act under color of authority derived from any law providing for equal rights."

There has been scant judicial construction of the "refusal" clause of § 1443(2) and virtually none in litigation where such construction was essential to the outcome. The clause has arguably been implicated in four decisions allowing removal. In O'Keefe v. New York City Bd. of Elections, 246 F.Supp. 978 (S.D.N.Y.1965), municipal elections officials were sued in state court to require them to follow provisions of state law limiting voter registration to those who could read and write English; the officials relied on conflicting provisions of § 4(e) of the federal Voting Rights Act of 1965. Removal was permitted under § 1443(2) "in that the action was brought against the Board, an official body, for acting under color of authority derived from § 4(e) of the Voting Rights Act, which is a law providing for equal rights." Id. at 980. The decision thus appears to rely solely on the "color of authority" clause of § 1443(2); no explicit reliance was placed on the "refusal" clause, though, as will frequently be the case, the officials seeking removal who were sued for following the federal statute could have alleged that they were being sued for refusing to do an act, namely, refusing to register only those literate in English as required by state law, on the ground that compliance would have been inconsistent with federal law.³

In Burns v. Board of School Commissioners, 302 F.Supp. 309 (S.D.Ind.1969), aff'd, 437 F.2d 1143 (7th Cir. 1971), school board members were similarly caught between conflicting requirements of federal court orders in a school desegregation suit brought by the United States Attorney General under provisions of the Civil Rights Act of 1964 and requirements of state law. Removal was grounded on...