Dodd v. Rue
Citation | 478 F. Supp. 975 |
Decision Date | 16 August 1979 |
Docket Number | No. C-1-79-348.,C-1-79-348. |
Parties | Leslie A. DODD et al., Plaintiffs, v. John R. RUE et al., Defendants. |
Court | U.S. District Court — Southern District of Ohio |
William Flax, Cincinnati, Ohio, for plaintiffs.
Nicholas A. Pittner, Columbus, Ohio, of counsel, for Brown.
C. R. Beirne, John A. Lloyd, Jr., Robert J. Hollingsworth, Cincinnati, Ohio, for remaining defendants.
This case is before the Court on plaintiffs' motion to remand (doc. 3). Removing defendant Brown has filed a memorandum contra (doc. 6), to which plaintiffs have filed a reply (doc. 7) so the motion is ripe for decision. S.D.Ohio R. 3.5.2. Oral argument was held on the motion on Friday, July 13, 1979. At that hearing, the remaining defendants (members of the Cincinnati Board of Education and the Superintendent of the Cincinnati Public Schools) stated that they were "indifferent" to the resolution of the motion to remand. These defendants have subsequently filed a motion to dismiss for failure to state a claim (doc. 9). Fed.R. Civ.Pro. 12(b)(6). Plaintiffs have also filed a "motion" for an "interlocutory order staying reassigning of plaintiff children" (doc. 8). We need not reach the merits of either motion since we have determined that the case should be remanded to state court.
As basis for removal, defendant Brown relies on 28 U.S.C. §§ 1441(b), 1443(2). These sections provide:
Defendant Brown accordingly argues that: (1) in his role of drafting and advocating a Resolution before the Cincinnati School Board ordering racial integration of the public schools, he was acting to implement the equal protection mandate of Brown v. Board of Education (Brown II), 349 U.S. 294, 299, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) and hence must be considered a "federal officer" or "person assisting such officer" for the purpose of § 1443(2) and; (2) in any case, he is charged with the failure to abide by a fiduciary duty and he contends that this refusal was based on the ground that it would be "inconsistent with" the equal protection clause.
At least with respect to the "color of authority" clause of the statute, it is clear that defendant's argument is without merit. Defendant Brown, at the time of the acts complained of, was neither a "federal officer" nor a "person assisting such officers in the performance of their official duties" within § 1443(2). Greenwood v. Peacock, 384 U.S., at 815, 86 S.Ct. 1800. The cases cited by defendant are all distinguishable in that they involved school board defendants acting pursuant to a federal court order to desegregate. See Bohlander v. Independent School District No. 1, 420 F.2d 693 (10th Cir. 1969); Concerned Citizens for Neighborhood Schools, Inc. v. Board, 379 F.Supp. 1233 (E.D.Tenn.1974); Linker v. Unified School District # 259, 344 F.Supp. 1187, 1195 (D.Kan.1972); Burns v. Board of School Commissioners, 302 F.Supp. 309 (S.D.Ind.1969), aff'd, 437 F.2d 1143 (5th Cir. 1971). See also Armeno v. Bridgeport Civil Service Comm'n., 446 F.Supp. 553, 556-57 (D.Conn.1978). No such order exists in this case. Although we are sympathetic to defendant's argument that such a distinction tends to punish voluntary good faith efforts by school boards to comply with the constitutional mandate of Brown v. Board by denying such school board officials a federal forum, we think, in light of the Supreme Court's heavy emphasis upon the historical underpinnings of the § 1443(2) "color of authority" clause, that this distinction is dispositive. See 384 U.S., at 814-24, 86 S.Ct. 1800.
With respect to the "refusal to act" clause of § 1443(2), however, the issue is not so clear. Defendant Brown's argument is that his "refusal" to abide by the alleged fiduciary duty which plaintiffs claim he breached was based on the ground that it would be "inconsistent with" the equal protection clause of the Fourteenth Amendment and hence removal was proper under the second clause to § 1443(2). In Greenwood, the Supreme Court stated that "removal under the "refusal to act" language is available only to state officers." Greenwood v. Peacock, 384 U.S., at 824 n. 22, 86 S.Ct. 1810. The Court, however, did not elucidate the relationship of the two clauses—i. e., whether the limitation on the first clause set out above applies equally to the second. Since we think there is no question that the equal protection clause of the Fourteenth Amendment is a "law providing equal rights" within § 1443(2) (see Georgia v. Rachel, 384 U.S. 780, 792, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966); New York v. Galamison, 342 F.2d 255, 269, 271 (2d Cir. 1965) (Friendly, J.)), the question before us is whether the "refusal to act" clause of § 1443(2) may be invoked by a class of defendants broader than the class mandated under the first clause in Greenwood.
The only case we have been able to find on this point is Bridgeport Ed. Ass'n. v. Zinner, 415 F.Supp. 715 (D.Conn.1976) cited to us by defendant Brown. In that case, Judge Newman extensively analyzed the history of the "refusal to act" clause of § 1443(2) and discussed its relationship to the "color of authority" clause. Based on his analysis, he concluded that removal was proper for any official acting under color of state law who alleged that he subjectively refused to act based on a "good faith belief" that the act would be inconsistent with federal law. See 415 F.Supp., at 717-24. For the reasons stated below, we respectfully disagree.
We find no basis for such a construction in the statute.1
Defendant Brown herein does not allege such a "square and definite inconsistency"; rather, we have before us a vaguely defined claim that defendant Brown's fulfillment of his fiduciary duty (as alleged by plaintiffs) would be "inconsistent with" the equal protection clause. We think such a claim is far from being clear. Cf. Dayton Board of...
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Taylor v. Currie, 05-CV-73418-DT.
...actions would "be `inconsistent with' the equal protection clause" is not enough to allow removal under § 1443(2). Dodd v. Rue, 478 F.Supp. 975, 979 (S.D.Ohio 1979) ("We think defendant's apprehension, however well intentioned or subjectively felt, is an insufficient substitute for an expre......
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White v. Wellington
...alleged to exist between the commands of state and federal law need not be apparent on the face of the statutes. But see Dodd v. Rue, 478 F.Supp. 975 (S.D.Ohio 1979). Because the Zinner defendants averred in their removal petition that they had refused to act in accordance with state law th......
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MASSACHUSETTS COUNCIL OF CONST. EMP. v. White, Civ. A. No. 80-669-T.
...applicability, or with generally phrased court orders. See Folts v. City of Richmond, 480 F.Supp. 621 (E.D.Va.1979); Dodd v. Rue, 478 F.Supp. 975 (S.D.Ohio 1979); Tucker v. Cleveland Board of Education, 465 F.Supp. 687 (N.D.Ohio. 1979); Armeno v. Bridgeport Civil Service Commission, 446 F.S......