Smith v. Winter, 83-4250

• Citation: 717 F.2d 191
• Decision Date: 14 October 1983
• Docket Number: No. 83-4250,83-4250
• Parties: 13 Ed. Law Rep. 629 Jimmy SMITH, et al., Plaintiffs-Appellants, v. William F. WINTER, Governor of the State of Mississippi, Mike Carr, Chancellor, etc., et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 191

717 F.2d 191

13 Ed. Law Rep. 629

Jimmy SMITH, et al., Plaintiffs-Appellants, v. William F. WINTER, Governor of the State of Mississippi Mike Carr, Chancellor, etc., et al., Defendants-Appellees.

No. 83-4250.

United States Court of Appeals Fifth Circuit.

Oct. 14, 1983.

Everett T. Sanders, Port Gibson, Miss., for plaintiffs-appellants.

Ed Davis Noble, Jr., Asst. Atty. Gen., Jackson, Miss., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Mississippi.

Before CLARK, Chief Judge, GEE and POLITZ, Circuit Judges.

CLARK, Chief Judge:

Three Black members of the Claiborne County, Mississippi Board of Education seek to remove to federal court a state hearing convened to determine whether there was cause to hold a public referendum on the issue of their recall from public office. Seeking removal via 28 U.S.C. Sec. 1443, they allege that the application of the Mississippi recall statute violated their civil rights under the Voting Rights Act. The district court remanded for lack of federal jurisdiction. We affirm.

Facts

Petitions circulated among the electorate of Claiborne County demanded the recall of Jimmy Smith, Bennie Knox, and Roosevelt Yarbrough from their elected offices on the Claiborne County Board of Education. Pursuant to the Mississippi statutory recall procedure, set out in Mississippi Code Section 25, Chapter 5, the Registrar of Claiborne County examined and certified the signatures on the petitions. On January 26, 1983, the Registrar filed the certified petitions with Mississippi Governor William Winter, who issued executive orders granting the three board members until February 5, 1983, to submit sworn written evidence on the issue of whether the petition signatories were qualified electors of Claiborne County. On February 7, 1983, the Governor issued new orders extending this deadline until February 21, 1983. These new orders also asserted that the petitions contained, prima facie, sufficient qualified signatures to proceed with the recall procedures. Accordingly, Smith, Knox, and Yarbrough were notified that they should appear before a Removal Council at the Claiborne County Courthouse on February 28, 1983, to show cause why the issue of their recall from office should not be submitted to a county referendum. The Governor issued orders designating Chancery Judges Carr, Patterson, and Cortwright to compose the Removal Council.

On February 18, 1983, Smith, Knox, and Yarbrough submitted evidence that some 350 of the more than 2900 persons signing the petitions were not qualified electors. They allege that disqualification of even seventy signatures would invalidate the petitions.

On February 22, 1983, Governor Winter responded to these challenges by returning the petitions to the Claiborne County Registrar for re-examination. The Registrar certified the petitions once more and two days later returned them to the Governor. On February 24, 1983, the Governor issued executive orders declaring that, pursuant to his authority under Mississippi Code Sec. 25-5-17 to make the final decision, he had found that the petitions contained sufficient valid signatures. He ordered the Removal Council hearing to proceed as scheduled.

On the morning of February 28, 1983, the day scheduled for the Removal Council hearing, Smith, Knox, and Yarbrough petitioned for removal of the recall proceedings to federal district court pursuant to 28 U.S.C. Secs. 1441(c) and 1443. Named as respondents were Governor Winter and the three Chancery Judges composing the Removal Council. Upon notice of the petition for removal to district court, the Removal Council recessed its proceedings.

The district court heard oral arguments and remanded to the Removal Council on the basis of lack of federal jurisdiction. On March 28, 1983, Smith, Knox, and Yarbrough petitioned this court for a stay of the recall proceedings pending the appeal of the remand. The stay was denied, but the hearing of this appeal was expedited.

Removal Pursuant to Section 1443

A federal district court's order remanding an action to state court is not a final order and normally not appealable. See Royal v. State Farm Fire & Casualty Co., 685 F.2d 124 (5th Cir.1982). Jurisdiction for this court to hear this appeal must be found in 28 U.S.C. Sec. 1447(d), which makes reviewable the remand of an action that involves civil rights issues within the ambit of Sec. 1443.

Under 28 U.S.C. Sec. 1443, a "defendant" may remove a civil action or criminal prosecution from state to federal court if he "is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States ...." This provision has consistently been construed narrowly to require strict satisfaction of both the "civil rights" element and the "enforcement" element intrinsic within it. The two-prong test has been stated as follows:

First, it must appear that the right allegedly denied the removal petitioner arises under a federal law "providing for specific civil rights stated in terms of racial equality." ... Second, it must appear, in accordance with the provisions of Sec. 1443(1), that the removal petitioner is "denied or cannot enforce" the specific federal rights "in the courts of [the] State."

Williams v. Mississippi, 608 F.2d 1021, 1022 (5th Cir.1979), cert. denied, 449 U.S. 804, 101 S.Ct. 49, 66 L.Ed.2d 8 (1980), quoting Johnson v. Mississippi, 421 U.S. 213, 95 S.Ct. 1591, 44 L.Ed.2d 121 (1975). See also Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966); City of Greenwood v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966); Texas v. Reimer, 678 F.2d 1232, 1233 (5th Cir.1982).

Because the first prong of this test demands that the civil rights asserted arise under laws phrased specifically in terms of racial equality rather than in general terms of equality for all citizens comprehensively, broad first amendment or fourteenth amendment claims do not satisfy the test, nor do claims arising under non-racially oriented statutes such as 42 U.S.C. Sec. 1983. See Georgia v. Rachel, 384 U.S. at 792, 86 S.Ct. at 1790; Louisiana v. Rouselle, 418 F.2d 873, 874 (5th Cir.1969). Because it confers rights specifically in terms of racial equality, the Voting Rights Act may support Sec. 1443 removal. Whatley v. City of Vidalia, 399 F.2d 521 (5th Cir.1968).

In seeking to satisfy the first prong of the test, the plaintiffs have asserted rights arising from one specific alleged violation of 42 U.S.C. Sec. 1973c and from other alleged infringements of their rights arising generally under 42 U.S.C. Sec. 1973. Because we find that the allegations establish neither a violation of Sec. 1973c nor any other claim cognizable under Sec. 1973, removal under Sec. 1443 must fail. Hence we do not address other questions that arise about the appropriateness of Sec. 1443 removal in these peculiar circumstances. Specifically, we express no opinion on whether the Claiborne County Removal Council constitutes a "court" within the meaning of Sec. 1443; whether the proceedings there constituted "civil actions or criminal prosecutions"; whether Smith, Knox and Yarbrough were in fact "defendants"; whether the "actions" brought against them were causally related to the exercise or enforcement of their civil rights, see Perkins v. Mississippi, 455 F.2d 7 (5th Cir.1972); or whether the plaintiffs would be unable adequately to enforce their rights in state courts. We assume, without deciding, that Smith, Knox, and Yarbrough have standing to assert these claims under the Voting Rights Act. See City of Mobile v. Bolden, 446 U.S. 55, 60, 100 S.Ct. 1490, 1496, 64 L.Ed.2d 47 (1980).

The Sec. 1973c Claim

The plaintiffs first allege a violation of 42 U.S.C. Sec. 1973c. This section requires that those states to which it applies must seek federal preclearance or approval before effecting changes in "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964." The plaintiffs argue that Governor Winter deviated from the Mississippi statutory recall procedure when he returned the contested signatures to the Claiborne County Registrar for recertification and that this deviation constituted a change in voting practice or procedure without federal approval, in violation of Sec. 1973c.

The Mississippi statutory recall procedure is set out in Miss.Code Ann. Sections 25-5-1 through 25-5-37 (1972). These statutes have been in effect in present form since 1956. They provide for the removal for cause of any elective county official under the following conditions. Thirty percent of the county electorate must demand the removal on petition, stating cause. Sec. 25-5-7. Each petition must be verified by a qualified elector who states under oath that he or she has witnessed each signature and that to the best of his or her knowledge, each signatory is a qualified elector of the county. Sec. 25-5-13. Before the petitions are presented to the governor, the county registrar must certify the petitions by comparing the signatures with the names of the qualified electors appearing on the county poll books, and must also certify the number of electors in the county as of the petition date. Sec. 25-5-15. The registrar has a limited amount of time in which to complete this certification. Sec. 25-5-19. The governor has the final decision about the validity of any signatures that are contested. Sec. 25-5-17. Once the governor finds the petitions valid, the affected elected official is served notice of a hearing before a specially convened Removal Council at which he may show cause why the question of his removal should not be submitted to a vote of the county electorate. Sec. 25-5-21. The governor appoints to the Removal Council three chancery judges, none of whom resides in the county in which the...