City of Cleveland v. Corley

• Decision Date: 25 July 1968
• Docket Number: No. 17580.,17580.
• Citation: 398 F.2d 41
• Parties: The CITY OF CLEVELAND, Plaintiff-Appellee, v. Nell CORLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

398 F.2d 41 (1968)

The CITY OF CLEVELAND, Plaintiff-Appellee, v. Nell CORLEY, Defendant-Appellant.

No. 17580.

United States Court of Appeals Sixth Circuit.

July 25, 1968.

Alexander H. Martin, Jr., Cleveland, Ohio, for appellant.

Donald J. Guittar, Asst. Director of Law, Cleveland, Ohio, for appellee; Bronis J. Klementowicz, Director of Law, City of Cleveland, Cleveland, Ohio, on brief.

Before O'SULLIVAN, PHILLIPS and COMBS, Circuit Judges.

O'SULLIVAN, Circuit Judge.

Nell Corley, appellant, asks reversal of an order of the United States District Court at Cleveland, Ohio, which remanded to the Probate Court of Cuyahoga County, Ohio, a condemnation proceeding which involved the taking of appellant's interest in some Cleveland real estate. Appellant is a Negro and in this Court relies for her right to remove the cause to the Federal District Court on Title 28, U.S.C. Sections 1441(b)¹ and 1443(1).² Appellant's basic position can best be disclosed by setting out No. II of her Statement of Question Presented, as follows:

"Petitioner for removal (appellant herein) alleged and was prepared to show that, solely by reason of her being a member of the Negro race, she was compelled to purchase the appropriated premises at an inflated price on a `secondary\' market; that the laws, customs and usages of the State of Ohio have fostered and supported said conditions; that the statutory and decisional law of the State of Ohio, separately and together, prevent presentation of the described conditions at trial in the courts of the State of Ohio for consideration by the jury, while Rule 71A(e) of the Federal Rules of Civil Procedure imposes no such restrictions. In the premises thus stated, is the appropriation proceeding removable under the provisions of Section 1443(1) of Title 28 of the United States Code?"

The District Judge, on July 11, 1966, granted the motion of appellee, City of Cleveland, to remand to the Probate Court of Cuyahoga County and thereafter denied appellant's motions for reconsideration and for injunction to stay proceedings pendente lite. We affirm.

1. Removal under § 1441 — federal question.

The condemnation action in the Cuyahoga Probate Court is not a civil action of which "The district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States * * *." 28 U.S.C. § 1441(b). Neither is there diversity of citizenship which would justify removal to the district court under 28 U.S.C. § 1332. It is clear that with the requisite diversity state condemnation actions may be removed to and tried in the appropriate district courts. Mississippi & Rum River Boom Co. v. Patterson, 98 U.S. 403, 407, 25 L.Ed. 206 (1878); Chicago, R. I. & Pac. R. Co. v. Stude, 204 F.2d 116, 119 (8th Cir. 1953), affirmed, 346 U.S. 574, 578-579, 74 S.Ct. 290, 98 L.Ed. 317 (1954); Madisonville Traction Co. v. Bernard Mining Co., 196 U.S. 239, 240, 25 S.Ct. 254 (1905).

Absent diversity, the district court jurisdiction attaches if the action is founded "on a claim or right arising under the Constitution, treaties or laws of the United States * * *," §§ 1441(b), 1331(a). Ohio's condemnation action, though in an ultimate sense governed by the federal due process standard of "just compensation," did not arise out of the Constitution, treaties or laws of the United States. The syllabus of Venner v. N. Y. C. R. Co., 293 F. 373 (6th Cir. 1923), says:

"A cause of action does not `arise under\' federal laws so as to justify removal, unless it arises out of and depends on those laws, so that plaintiff must show, both in stating and in proving his case, that his right to recover stands on federal laws; and otherwise, even though his complaint may disclose that the case will turn on and be ruled by some federal law under which defendant is claiming, federal jurisdiction will fail."

Appellant also claims the existence of federal question removal jurisdiction on the basis that the Cleveland condemnation action was a part of a federal urban renewal program, and presumably subject to the requirements of 42 U.S.C. § 3072, which prescribes certain general standards to be followed by state agencies acquiring property by eminent domain as part of a federally financed development program. Assuming appellant is correct that the statute has application here, we do not think the state court condemnation proceeding thereby arose under federal law. In a similar case, where the federal Housing and Home Finance Agency, along with various state agencies was involved in a Chicago urban renewal program, Harrison-Halsted Community Group, Inc. v. Housing and Home Finance Agency, et al., 310 F.2d 99 (7th Cir. 1962), the Court of Appeals for the Seventh Circuit held that no federal question was presented. That case involved a declaratory judgment action to declare improper and enjoin an Illinois state condemnation action. The complaint set out broad allegations of discrimination against minority groups — Mexicans and Negroes — whose properties were to be taken. In holding that no federal question was involved, the Seventh Circuit said:

"Nevertheless, and in spite of the outraged feelings of many people who have interests in this area, we have in mind that questions arising from the taking of property by condemnation for state purposes, are ordinarily matters for determination by the state courts. The plaintiffs in this case have sought relief in a federal court. Whether they may properly do so depends principally on whether they have standing to sue and whether a substantial federal question is involved."

* * * * * *

"Plaintiffs argue the pending condemnation suits in the Illinois state court do not offer to them an adequate forum for the vindication of their rights."

* * * * * *

"We have no right or justification to speculate that the state courts of Illinois will not protect any rights the plaintiffs may have. The United States Supreme Court and other federal courts have repeatedly refused to entertain suits in which plaintiffs\' personal or private legal rights have not been infringed and could only be infringed by an improper judgment in a condemnation proceeding. State of Georgia v. Chattanooga, 264 U.S. 472, 483-484, 44 S.Ct. 369, 68 L.Ed. 796 * * *; Amalgamated Clothing Workers of America et al. v. Richmond Brothers Co., 348 U.S. 511, 518-519, 75 S.Ct. 452, 99 L.Ed. 600, * * *; Southern California Petroleum Corporation v. Harper, 5 Cir., 273 F.2d 715." 310 F.2d, at 103, 106.

2. Removal under § 1443(1).

Appellant also assigns as a reason for her right of removal that as a Negro she had been compelled to purchase the premises to be condemned "at an inflated price on a `secondary market'" and, conclusionally, asserts that such condition had been fostered by "the laws, customs and usages of the State of Ohio." Then, without citation to any statute or decision, she again conclusionally asserts:

"that the statutory and decisional law of the State of Ohio, separately and together, prevent presentation of the described conditions at trial in the courts of the State of Ohio for consideration by the jury * * *."

Neither in the District Court nor in her address to us did appellant set out any statute of Ohio or any decision of its courts to support her above allegations. The District Judge reviewed the Ohio statutes and its decisional law and quite properly concluded that nothing therein contained would authorize any discriminatory visitation upon appellant because of her race. We are likewise satisfied that such is true. We so conclude from the District Judge's finding and from our own notice of relevant Ohio law.

We consider that the recent Supreme Court decisions in Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966), and Greenwood v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966), support the action of the District Judge and require our affirmance of his judgment. Although removal of state criminal prosecutions was there involved, these cases provide controlling law for the present case by virtue of the exhaustive general treatment there given by the Supreme Court to the scope of removal under § 1443(1).

In Georgia v. Rachel, Negroes had been arrested when seeking service at privately owned restaurants. They were indicted under a Georgia statute making it a misdemeanor to refuse to leave the premises of another when requested to do so by a person in charge thereof. The Supreme Court held that the cases were removable because the Georgia law came directly into collision with the Civil Rights Act of 1964, which provided for specific civil rights in terms of racial equality. In Greenwood v. Peacock, removal was denied in that the persons there involved were prosecuted for obstructing public streets, for assault, disturbing the peace, interfering with an officer in the performance of his duty and a miscellany of other violations of Mississippi laws and ordinances of one of its cities. The Supreme Court held that the ordinances and state laws could not be read as being designed to be enforced discriminatorily, nor would they collide with or deny enforcement of any "law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof." 28 U.S.C. § 1443(1).

It would be presumptuous of this Court to attempt improvement or extension of the comprehensive exposition of relevant law in the opinions of Mr. Justice Stewart, speaking for the majority in both of these cases, notwithstanding the vigorous dissent authored by Mr. Justice Douglas and concurred in by three of his colleagues. In Georgia v. Rachel, Justice Stewart explained the delimited reach of "any law providing for the equal civil rights of citizens of the United States," as set out in § 1443(1), as follows:

"On the basis of the historical material that is available, we conclude that the phrase `any law providing for * * * equal civil rights\'

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