Bar Association of Baltimore City v. Posner, Civ. No. B-74-893.

• Decision Date: 28 January 1975
• Docket Number: Civ. No. B-74-893.
• Citation: 391 F. Supp. 76
• Parties: The BAR ASSOCIATION OF BALTIMORE CITY v. Harold POSNER.
• Court: U.S. District Court — District of Maryland

391 F. Supp. 76

The BAR ASSOCIATION OF BALTIMORE CITY v. Harold POSNER.

Civ. No. B-74-893.

United States District Court, D. Maryland.

January 6, 1975.

Supplemental Memorandum January 28, 1975.

COPYRIGHT MATERIAL OMITTED

Patrick A. O'Doherty, Baltimore, Md., for plaintiff.

Harold Posner, in pro. per.

MEMORANDUM AND ORDER

BLAIR, District Judge.

On July 17, 1974, the Bar Association of Baltimore City filed charges with the Court of Appeals of Maryland alleging professional misconduct by petitioner, Harold Posner. On July 29, 1974, the Chief Judge of the Court of Appeals signed an order appointing a three-judge panel of the Supreme Bench of Baltimore City and directing it to hear the charges against Posner. Subsequently, Posner was served with copies of the charges against him and the order signed by Chief Judge Murphy. He was directed to answer the charges within 15 days. However, instead of answering the charges in the state court, Posner filed a petition for removal of the case from state court to this federal court, purportedly under the authority of 28 U.S. C. § 1443(1). In response to that petition for removal, the Bar Association of Baltimore City filed a "Motion to Dismiss . . . Or, In the Alternative, To Remand the Case to the Court of Appeals of Maryland." At the request of this court, both parties have filed memoranda of points and authorities concerning the Bar Association's motion.

According to his petition for removal, as amended, "Harold Posner is denied his civil rights under Title 28, U.S.C. sec. 1443(1) and 42 U.S.C. sec. 1983, in the courts of the State of Maryland." The civil rights which Posner claims are denied him by the Maryland courts—and by the Bar Association Grievance Committee —are several. First, he alleges that the Bar Association "has a double standard when it concerns wealthy and influential attorneys and members of large law firms, who are faced with complaints of unethical conduct . . ., as opposed to small lawyers such as . . . Posner." Second, he asserts that the Bar Association failed to comply with state procedural requirements. Third, he claims "that most charges against said Petitioner Posner go back 8 to 10 years which is ridiculous." The alleged age of the charges, he believes, violates the constitutional bar against cruel and unusual punishment. Fourth, he alleges that the Bar Association Grievance Committee denied him the opportunity to cross-examine witnesses against him and ignored exculpatory evidence. Fifth, and finally, he asserts that "a number of the charges . . . are made-up, and are not supported by any of the wildest allegations against said Petitioner." These alleged bases for removal may be grouped into two classes: (1) denial of equal protection of the laws due to discriminatory enforcement, including the making of false charges, and (2) assorted claims of denials of due process.

Judicial Interpretation of § 1443(1)

Under the terms of subsection (1) of the civil rights removal statute, 28 U.S.C. § 1443(1),¹ and the decisions which interpret that statute, it is patent that the Bar Association's motion to remand this case to the state tribunal must be granted, since it appears conclusively "that the case was removed improvidently and without jurisdiction." 28 U.S.C. § 1447(c). None of petitioner's allegations fit the narrow range of cases which may be removed under Section 1443(1).² Of course, for purposes of this motion this court assumes the truth of all well-pleaded allegations. See State of North Carolina v. Grant, 452 F.2d 780, 782 (4th Cir. 1972); Commonwealth of Pennsylvania ex rel. Gittman v. Gittman, 451 F.2d 155 (3d Cir. 1971).

Removal of a civil action or criminal prosecution³ from a state court to a federal court is permitted only in an extremely narrow range of cases. Indeed, it may be accomplished only "in the rare situations where it can be clearly predicted by reason of the operation of a pervasive and explicit state or federal law" that the petitioner's federal rights "will inevitably be denied" if the case is not removed. Greenwood v. Peacock, 384 U.S. 808, 828, 86 S.Ct. 1800, 1812, 16 L.Ed.2d 944 (1966); Commonwealth of Virginia v. Jones, 367 F.2d 154, 155 (4th Cir. 1966). See Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966).⁴ Two broad restrictions upon removal under § 1443(1) appear on the face of that statute. First, removal is limited to cases involving "a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof," and, second, the petitioner for removal must show that he "is denied or cannot enforce such a right in the courts of such State."

The statutory restriction of removal to cases involving federal rights which are derived from "any law providing for . . . equal rights" has been strictly construed. It "applies only to rights that are granted in terms of equality and not to the whole gamut of constitutional rights." Georgia v. Rachel, 384 U.S. 780, 792, 86 S.Ct. 1783, 1788, 16 L.Ed.2d 925 (1966) (quoting with favor from New York v. Galamison, 342 F.2d 255, 269 (2d Cir.), cert. denied, 380 U.S. 977, 85 S.Ct. 1342, 14 L.Ed.2d 272 (1965)). More specifically, the Supreme Court has held that "the phrase `any law providing for . . . equal civil rights' must be construed to mean any law providing for specific civil rights stated in terms of racial equality." Georgia v. Rachel, supra, 384 U.S. at 792, 86 S.Ct. at 1790 (emphasis added). See State of North Carolina v. Grant, 452 F.2d 780, 782 (4th Cir. 1972); Appalachian Volunteers, Inc. v. Clark, 432 F.2d 530, 535 (6th Cir. 1970), cert. denied, 401 U.S. 939, 91 S.Ct. 936, 28 L.Ed. 2d 219 (1971). Thus, removal has been held improper in a variety of cases involving alleged infringements on fundamental federal rights. For example, it has been held that removal was inappropriate where petitioners have alleged infringement on their freedom of speech, on their right to speedy trial, on their freedom from unreasonable search and seizure, and on their right to a fair trial. See Greenwood v. Peacock, 384 U.S. 808, 825, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966) (freedom of speech); State of North Carolina v. Grant, supra, 452 F.2d at 782 ("rights to a fair trial and fundamental due process"); People of California v. Sandoval, 434 F.2d 635, 636 (9th Cir. 1970), cert. denied, 402 U.S. 909, 91 S.Ct. 1381, 28 L.Ed.2d 649 (1971) (freedom of speech); Naugle v. State of Oklahoma, 429 F.2d 1268 (10th Cir. 1970) (right to speedy trial); Miller v. Wade, 420 F.2d 489, 490 (5th Cir. 1969), cert. denied, 397 U.S. 1068, 90 S.Ct. 1509, 25 L.Ed.2d 690 (1970) (freedom from unreasonable search and seizure and right to speedy trial). Furthermore, jurisdiction has been held to be absent under § 1443(1) where denial of "equal civil rights" was alleged, but along nonracial lines. See State of North Carolina v. Grant, supra (alleged discriminatory prosecution of whites for political reasons); Bass v. State of Mississippi, 381 F.2d 692, 696-97 (5th Cir. 1967) (sex discrimination in statutory exclusion of women from juries).

The second limitation upon removal under § 1443(1), which restricts removal to only those defendants who are "denied or cannot enforce their equal civil rights in the courts of such State," has also been strictly construed. Even assuming that the petitioner in removal properly alleges a potential denial of "equal civil rights," he still must either specify a present denial of those rights or clearly predict an inevitable denial "by reason of the operation of a pervasive and explicit state or federal law." State of South Carolina v. Moore, 447 F.2d 1067, 1070 (4th Cir. 1971); Commonwealth of Virginia v. Jones, 367 F.2d 154, 155 (4th Cir. 1966). To satisfy this requirement, the petitioner in removal must take either of two approaches:

The defendant must show either that there is a basis for a firm prediction that such rights of racial equality will be denied in the state court or that the pendency of the prosecution without more, is a deprivation of such a federally protected right. It is not enough to show that he has a defense with more or less hope of its successful assertion in an impartial tribunal; he must show that his federally secured right of racial equality is denied by the pendency of the proceeding or "by reason of the operation of a pervasive and explicit state or federal law that those rights will inevitably be denied by . . . bringing the defendant to trial in the state court."

State of South Carolina v. Moore, supra, 447 F.2d at 1070.

For a defendant to satisfy the first alternative, that is, to demonstrate that he is "denied or cannot enforce" a federal right of racial equality because of the very fact of the state prosecution, the defendant must show (1) that he had a federal statutory right to engage in the conduct which is the basis for the state prosecution and (2) that he has "the further federal statutory right that no State should even attempt to prosecute him for his conduct." Greenwood v. Peacock, 384 U.S. 808, 826, 86 S.Ct. 1800, 1811, 16 L.Ed.2d 944 (1966); Georgia v. Rachel, 384 U.S. 780, 804-05, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966). Thus, in Georgia v. Rachel, supra, the Supreme Court approved removal of a state prosecution for criminal trespass, because the only conduct upon which the prosecution was based—refusing to desist from peacefully attempting to be served at a private restaurant open to the general public—was expressly authorized by the Civil Rights Act of 1964 and was immunized from state prosecution. See Hamm v. City of Rock Hill, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300 (1964). Under such circumstances, the Court concluded, "the burden of having to defend the prosecutions is itself the denial of a right explicitly conferred by the Civil Rights Act of 1964 . . .." Georgia v. Rachel, supra, 384 U.S. at 805, 86 S.Ct. at 1797.

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