News-Texan, Inc. v. City of Garland, Tex.
| Decision Date | 13 April 1987 |
| Docket Number | INC,NEWS-TEXA,No. 86-1572,86-1572 |
| Citation | 814 F.2d 216 |
| Parties | , Plaintiff-Appellee, Cross-Appellant, v. The CITY OF GARLAND, TEXAS, et al., Defendants-Appellants Cross-Appellees. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Charles M. Hinton, Jr., City Atty., Hermon L. Veness, Jr., Asst. City Atty., Garland, Tex., for City of Garland, Tex.
Thomas S. Leatherbury, John H. McElhaney, Locke, Purnell, Boren, Laney & Neely, Dallas, Tex., for News-Texan, Inc.
Appeals from the United States District Court for the Northern District of Texas.
Before CLARK, Chief Judge, GARWOOD and HILL, Circuit Judges.
This appeal by the City of Garland, Texas (the City) from the district court's remand primarily presents the question of whether the City's removal of the action was proper under the federal civil rights removal statute, 28 U.S.C. Sec. 1443(2).
In the fall of 1984, the City began to search for a new city manager. News-Texan, Inc. (NTI), the local newspaper, asked the City to disclose the names of candidates for the post and "all other data relevant to the names that would be in possession of the city of Garland." When the City did not comply, NTI filed suit in state court in January 1985 asking that the information requested be declared public under the Texas Open Records Act, Tex.Rev.Civ.Stat.Ann. art. 6252-17a (Vernon Supp.1986), and that a writ of mandamus issue compelling the City to disclose this information.
On January 17, 1985, the day before the state hearing was scheduled, the City removed this case, alleging that removal was proper under 28 U.S.C. Secs. 1443(2) and 1441(a)-(c). The state proceedings were held in abeyance. On January 22, NTI moved for remand and costs, but, that same day, the City Council called an emergency meeting and hired a new city manager.
More than two years later, NTI has yet to be heard in state court. Although the court below ordered this case remanded in July 1986, the City brought this appeal, advancing various theories it claims justify either our reversal of the remand or our dismissal of this case as moot. 1 The City proclaims that its theories "rely on logic and subtle nuance" and "lie on the frontier of the law governing removal of civil rights cases." Paradoxically, the City, having initiated proceedings in federal court and appealed the 1986 remand, also now informs us, though it never so contended below, 2 that "[a]ny action taken by this Court will resolve absolutely nothing as far as NTI is concerned."
We find the City's legal arguments to be utterly devoid of merit. We affirm the district court's remand of the case to state court; we vacate the district court's decision not to impose sanctions on the City for improvident removal and remand to the district court for its reconsideration of whether such sanctions are appropriate under the correct legal standard; and, finally, we award attorneys' fees and costs on appeal to NTI and against the City for the City's plainly frivolous appeal.
The merits of this appeal need not long detain us. We do not decide whether the information sought by NTI should be made available or whether NTI's request is now moot under Texas' Open Records Act. Those decisions will be made by the courts of the State of Texas. 3 Further, as Thompson v. Brown, 434 F.2d 1092 (5th Cir.1970), relied on by the City, clearly holds, the mootness of a case does not prevent our review of the propriety of a remand order (in cases removed under section 1443). If the case is moot (as indeed Thompson apparently was even when it was removed) and was properly removed and erroneously remanded, the federal district court's remand order is reversed and that court, which has been determined to be the only court having jurisdiction of the case, is then directed to dismiss it as moot. Id. at 1096. A fortiori, if the removal was improper and the federal district court's remand is affirmed, the question of the mootness of the suit is left for the state court, which has exclusive jurisdiction of the case and which may have different standards of mootness than do the federal courts. Here, as below-noted, we hold that the removal was improper and affirm the remand; hence, the mootness issue is to be resolved by the state court.
The City's appeal as to the remand raises what amounts to two claims: first, that the district court erred by remanding without requiring a full evidentiary hearing, and, second, that removal was proper because release of the information requested would compel the City to violate the Voting Rights Act. However, because no evidentiary hearing is required if the section 1443 grounds purportedly justifying removal are patently invalid from the face of the removal petition, see Smith v. Winter, 717 F.2d 191, 199 (5th Cir.1983); Varney v. Georgia, 446 F.2d 1368 (5th Cir.1971), and because we agree with the district court that removal was plainly improper, the City's contentions effectively collapse into the single assertion that removal was proper, which we now address.
The Garland City Charter provides that city managers are to be chosen by the City Council. The City's petition for removal asserted that requiring the disclosure of the applicants' names would violate a provision of the Voting Rights Act, 42 U.S.C. Sec. 1973c, because publication of information about job applicants would open city manager selection to public debate, thereby transforming a selection process into an election process. 4
Under 28 U.S.C. Sec. 1443(2), removal is proper if an appropriate official is sued in state court for "refusing to do any act on the ground that it would be inconsistent with" any law providing for equal rights, such as section 1973c. See Whatley v. City of Vidalia, 399 F.2d 521 (5th Cir.1968). 5 The City asserts that it has a federal right to refuse to comply with state law, because section 1973c prohibits certain changes affecting voting without court approval or the United States Attorney General's preclearance, and that removal is therefore proper under section 1443(2). The City alleges that those informed citizens who would influence the City Council in its selection of a new city manager would reflect a different racial mix than do the electors of the council members, each of whom represents a defined geographical area, and that this citizen influence would bypass the existing representational system of the city charter and (presumably) in some way dilute minority voting power. 6
Adopting the City's theory would stretch the Voting Rights Act beyond rational limits, if not distort its purpose, and seal off significant aspects of City government from citizen scrutiny. Article IV, section 1, of the Garland City Charter empowers the Garland City Council to "[a]ppoint the city manager." This same section of the charter also directs the City Council to establish administrative departments; "[a]dopt the budget of the city and disburse municipal funds"; authorize the issuance of bonds; "[i]nquire into the conduct of any office, department or agency of the city"; "[o]pen, widen, extend or straighten public streets"; "[p]rovide ... for the exercise of the police powers of the city"; "[a]dopt ... plans ... for the replanning, improvement and redevelopment of neighborhoods"; and "[p]ass all ordinances."
The City's claim is that the Voting Rights Act protects the City Council's absolute prerogative to make decisions entrusted to it by the city charter, and that enforcement of Texas' Open Records Act, by providing information to citizens, increases the possibility that citizens might influence Council decisions, thereby somehow changing the City's representational structure. If this theory proves anything at all, it proves far too much. The absurdity of the City's premise becomes self-evident when the theory is applied evenhandedly to all powers given the City Council by the charter, because the City's argument requires the parallel conclusion that voting rights are threatened by public awareness about and involvement in matters such as the creation of city departments, the city budget, issuance of bonds, official conduct in office, public thoroughfares, the exercise of police powers, neighborhood planning, the enactment of city laws, and the appointment of major city officials. We decline the City's invitation to explore this far "frontier of the law" and hold that the district court was clearly correct in finding that this is not the sort of change envisioned by the Voting Rights Act and addressed by section 1973c. See, e.g., Smith v. Winter, 717 F.2d 191 (5th Cir.1983) (). 7
Because this fundamental defect was plainly evident in the City's petition for removal, no evidentiary hearing was required, and remand was proper.
NTI by cross-appeal argues that the district court applied an incorrect legal standard in its decision not to sanction the City. At the outset, we observe that we retain jurisdiction to review sanction decisions even though removal was improper and even though the removal was sought in part under section 1441, as well as under section 1443. In that respect, this case presents a fact situation almost the converse of that of In re Vatican Shrimp Co., Inc. v. Solis, Nos. 86-2412, 86-2579, 86-2601, slip op. at ---- (5th Cir. 1987), in which Vatican Shrimp appealed the district court's decision to award sanctions against the company based on the court's conclusion that Vatican Shrimp's removal of the case under section 1441 was unwarranted. There, we reversed an award of attorneys' fees, noting that although section 1447(d)
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