Grenchik v. Mandel

• Decision Date: 23 May 1973
• Docket Number: Civ. No. 73-386-K.
• Citation: 373 F. Supp. 1298
• Parties: Thomas John GRENCHIK et al. v. The Honorable Marvin MANDEL, Governor of the State of Maryland, et al.
• Court: U.S. District Court — District of Maryland

373 F. Supp. 1298

Thomas John GRENCHIK et al. v. The Honorable Marvin MANDEL, Governor of the State of Maryland, et al.

Civ. No. 73-386-K.

United States District Court, D. Maryland.

May 23, 1973.

Samuel H. Depew, Glen Burnie, Md., and Douglas J. Rykhus, Washington, D. C., for plaintiffs.

Paul M. Nussbaum, Mt. Rainier, Md., for defendants Bd. of Ed. of Prince George's County, Maryland, and others.

Henry R. Lord, Deputy Atty. Gen. of Md., and Malcolm R. Kitt and E. Stephen Derby, Asst. Attys. Gen. of Md., for defendants Governor Marvin Mandel, and others.

FRANK A. KAUFMAN, District Judge.

In this case, plaintiffs seemingly seek at least three types of relief against defendants who fall into two groups: (1) the members of the Board of Education of Prince George's County and certain officials of the Prince George's County school system ("Board defendants"), and (2) the Governor of Maryland and a number of state officials ("State defendants"). The three types of relief¹ sought are:

(a) Injunctive relief restraining in whole or in part certain aspects of the decree of this Court in Vaughns v. Board of Education of Prince George's County, 355 F.Supp. 1051 (D.Md.1972), which decree was affirmed by the Fourth Circuit, No. 73-1024, January 23, 1973. On January 26, 1973, Mr. Chief Justice Burger, joined by five other members of the Supreme Court, denied a petition to stay that said decree. An application for certiorari to the Supreme Court has been denied, 414 U.S. 999, 94 S.Ct. 352, 38 L.Ed.2d 235 (1973).

(b) Judgments for damages against all defendants for their actions taken in compliance with and in implementation of this Court's aforesaid decree in Vaughns.

(c) Damages against all defendants for their failure, prior to the entry by this Court of its aforesaid decree in Vaughns, to comply with the Constitution and laws of the United States.

While the complaint announces that it does not seek in any way "to interfere with or alter any outstanding Federal Court Order currently imposed on the Prince George's County School System", the complaint itself and the oral presentations by plaintiffs' counsel during three separate hearings in this Court reveal with clarity that, as contended by the Board defendants, the State defendants, and plaintiffs in Vaughns, all relief sought in this case except perhaps the (c) type goes straight to the heart of the effective implementation of the Vaughns decree.

This case was instituted on February 23, 1973 in the Circuit Court for Anne Arundel County. Thereafter, each of the Board defendants sought, and each of the State defendants consented to, removal of this case to this Court under the provisions of 28 U.S.C. §§ 1441 and 1443, but only four of the Board defendants and none of the State defendants either sought or consented to removal within 30 days after service upon each of them respectively of the complaint filed in the State Court by the plaintiffs, as set forth in 28 U.S.C. § 1446(b) with regard to removal under section 1441 or section 1443. While this Court has personal jurisdiction over each of the defendants herein and while subject matter jurisdiction is present, nevertheless, it may well be that this Court has no power to extend the 30-day period for seeking or consenting to removal under either section 1441 or section 1443, even under the circumstances of this case.²

Plaintiffs have filed a motion asking this Court to remand this case in its entirety to the State Court. In so doing, inter alia, plaintiffs have pointed to the late removal actions by all but four of the defendants. Plaintiffs would appear to be on sound ground insofar as section 1441 is concerned. In order for removal of a case to be consummated under section 1441, all defendants must timely seek or consent to removal.³ However, the same may not necessarily be true with regard to 28 U.S.C. § 1443, the statute dealing with removal in certain instances involving civil rights. Pursuant to that latter section it may well be that any single defendant can remove an appropriate case from the State Court to the federal court, insofar as the case pertains to him, regardless of whether or not removal can survive in relation to those aspects of the case dealing with other defendants.⁴ If so, the four Board defendants who have sought removal within the 30-day period referred to above might be entitled to have this Court deny plaintiffs' motion to remand insofar as the case against them is concerned. Perhaps under those circumstances, this Court has the power to extend the 30-day period for removal under section 1443 with regard to the other defendants, without the consent of all parties herein including, of course, the plaintiffs.

Separate and apart from all of the complex removal issues presented herein are questions presented by the quest of all of the Board defendants for injunctive relief restraining plaintiffs from proceeding further in the State Court in this case. The State defendants, on the other hand, have taken the position that comity dictates that the appropriate forum for this case, at least initially, is not this Court but the State Court.⁵ Plaintiffs vigorously oppose any injunction and emphasize their desire to proceed in the State forum selected by them, insisting that none of the relief they seek in this case will interfere in any way with the implementation of this Court's decree in Vaughns. As indicated above, that latter contention is rejected by this Court. By way of contrast, the position taken by the State defendants presents a very close and delicate issue. Nevertheless, on balance, after lengthy hearings in which the views of all of the parties have been sought and expressed, this Court has determined that, at this time, all of the issues currently presented in this case are so inextricably bound to and entangled with the terms and provisions of the Vaughns decree that this Court is required to issue, at this time, an injunction restraining plaintiffs from proceeding any further in the State Court in this case.⁶ While this Court agrees with the State defendants that there is no reason to believe that after all of the issues are presented fully to the State Court, that Court would take any action in derogation of the Vaughns decree, nevertheless it would seem clear that before that Court could reach that conclusion, it would be required to become acquainted with the lengthy record in Vaughns compiled during weeks of court proceedings in, and during months of pendency of, Vaughns. It would not appear in the interests of comity for this Court to delay granting the injunctive relief the Board defendants seek at this time when to do so would not only require the State Court to review and to consider all that has occurred in Vaughns to date, but would also probably result in this Court, in the event the State Court should take any action which this Court should determine to be inconsistent with its decree in Vaughns, issuing all or a major part of the injunctive relief the Board defendants currently seek.

Further, although it may be that at some future time the "(c)" type relief sought in this case by plaintiffs can be separated from the types of relief sought in connection with "(a)" and "(b)", there exists at this time considerable confusion in this case as to whether such separation is or is not possible.⁷ Until it can be determined whether such separation is practical, it is clear to this Court that any further proceedings in this case must and will affect the day-to-day implementation of this Court's decree in Vaughns. As the Board defendants have emphasized, they cannot be under the jurisdiction of two courts in connection with the daily operation of the Prince George's County school system. This Court notes well the teachings of the Fourth Circuit in Lynch v. Snepp, 472 F.2d 769 (4th Cir. 1973). But, in this case, in the opinion of this Court, the pronouncements set forth in footnote 1 in the Lynch case fit like a glove.⁸ For, plaintiffs' protestations to the contrary, their quest for the (a) and (b) types of relief challenge this Court's decree in Vaughns.

Because of the dearth of authority with regard to at least some of the difficult removal issues discussed above, and the presence in this case of the clear-cut alternate injunction route, this Court will not determine at this time those removal questions and instead will hold that question sub curia until further hearings have been held in this Court to establish whether one or more of the substantive issues in this case are separable from the implementation of the Vaughns decree, and whether under the circumstances of this case a federal court has power to extend the 30-day period for some of the defendants. Against that background and the present status of this case, this Court hereby issues the injunctive relief requested by the Board defendants. That injunction shall remain in force and effect until this Court, or a court having appellate jurisdiction over this Court, takes action to cause the dissolution or amendment of said injunction. Such injunction is and shall be preliminary in nature. In that connection, this Court notes that in Vaughns, the plaintiffs therein have filed motions under Federal Civil Rule 15(d) seeking to join as additional defendants therein the parties-plaintiff and the State defendants in this case.⁹ This Court has granted those motions, but has scheduled a hearing on May 25, 1973 to give those persons named as additional parties the opportunity to move to dismiss the complaint against them in Vaughns, provided, however, that service is made upon each of them on or prior to May 24, 1973. In that connection, it is to be noted that the three hearings which have been held in this Court in this case have also been held on a consolidated basis in Vaughns. It is also to be noted that counsel for the plaintiffs in this case is also counsel, at this time, for the intervenors in Vaughns, and that...