Taylor v. Currie, 05-CV-73418-DT.

Decision Date15 September 2005
Docket NumberNo. 05-CV-73418-DT.,05-CV-73418-DT.
Citation386 F.Supp.2d 929
PartiesMaureen D. TAYLOR, Plaintiff, v. Jackie CURRIE et al., Defendants.
CourtU.S. District Court — Eastern District of Michigan
386 F.Supp.2d 929
Maureen D. TAYLOR, Plaintiff,
Jackie CURRIE et al., Defendants.
No. 05-CV-73418-DT.
United States District Court, E.D. Michigan, Southern Division.
September 15, 2005.

Page 930

Hugh M. Davis, Jr., Detroit, MI, Stephen Wasinger, Wasinger, Kickham, Royal Oak, MI, for Plaintiff.

Allen I. Glass, Steven W. Reifman, Reifman & Glass, Farmington Hills, MI, Brenda E. Braceful, Detroit, MI, for Defendants.


CLELAND, District Judge.

This case was removed from Wayne County Circuit Court by Defendants Jackie Currie and Detroit Elections Commission. Pending before the court is a motion to remand, filed by Plaintiff Maureen D. Taylor on September 6, 2005. The matter has been fully briefed, and the court conducted a hearing on September 13, 2005.

Federal statutes permitting cases to be removed under certain circumstances are traditionally construed such that any doubt in a particular case is to be resolved against removal. Divesting a state court of power to hear claims involving important state matters raises significant federalism concerns and can upset the proper relationship between the state and federal governments. A defendant cannot simply invent an issue of federal law to support removal to federal court; proper justification must be found in an authorizing statute. Here, Defendants allege, but provide nothing to support, a clash of duties between the standards required under federal law and the obligations required of them under Michigan law and a preliminary injunction entered on September 1, 2005. The case will be remanded.


Plaintiff Maureen Taylor initiated this action on August 18, 2005, in Wayne County Circuit Court. Plaintiff's complaint alleges various defects in the August 2, 2005 primary election for Detroit City Council.1 Plaintiff seeks "Mandamus" and injunctive relief which would, among other things, order Defendants Jackie Currie and Detroit Elections Commission to: (1) show cause why they should not purge their rolls of all absentee voters whose applications were returned as undeliverable in the August 2 primary and all other persons they know not to be qualified to vote as electors in the City of Detroit before the mailing of absentee voter applications for the November 2005 general election; (2) purge their rolls by conducting a canvas pursuant to MCL 168.515; (3) preserve and maintain all records related to the August 2 primary. (See Compl. at ¶¶ 64-68.) In her complaint, Plaintiff indicated that she was not asserting any federal claims and, instead, specifically reserved the right to pursue any federal claims in a federal forum, pursuant to England v. Louisiana Bd. of Med. Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). (Compl. at ¶ 51.)

After filing her complaint, Plaintiff also filed a motion for a temporary restraining

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order and for a preliminary injunction to prevent Defendants from mailing unsolicited applications for absentee ballots for the November election. On Tuesday, August 29, 2005, Chief Judge Mary Beth Kelly of the Wayne County Circuit Court granted the motion for temporary restraining order, and on Thursday, September 1, 2005, Judge Kelly orally granted the motion for preliminary injunction. Specifically, in a thorough and well-reasoned opinion, Judge Kelly ruled from the bench that Plaintiff was likely to succeed on the merits of her claim that Defendants' actions in mailing out unsolicited absentee ballot applications violated MCL 168.759. (See 9/2/05 Tr. at 7-8, 11-12.) After considering the other relevant factors for preliminary injunction, Judge Kelly enjoined "the City of Detroit from using a bulk mailing and from allowing the unsolicited mailing of absentee voter ballot applications in the general election." (See 9/2/05 Tr. at 12, attached to Pl.'s Br. In Opp. to Mot. to Dismiss). Judge Kelly ordered the parties to submit a written order agreed upon as to form no later than 2:00 p.m. on the Tuesday following Labor Day, September 6, 2005. (Id. at 13.)

On September 2, 2005, Defendants Jackie Currie and Detroit Elections Commission removed the case to this court from Wayne County Circuit Court.2 The purported basis for subject matter jurisdiction was federal question jurisdiction under the 14th Amendment of the United States Constitution and the Voting Rights Act of 1965 (42 U.S.C. § 1973). (Notice of Removal at ¶ 5.) According to Plaintiff, on September 2 Defendants also mailed out mass absentee voter applications in direct contravention of Judge Kelly's order.3

On September 6, 2005, Defendants filed a 12(b)(6) motion to dismiss, arguing that Defendants do not have the power to do the majority of what Plaintiff seeks (including her general attempt to be placed on the November ballot). Defendants also argue that it would violate federal law to provide part of the relief Plaintiff seeks (i.e., to not send out the unsolicited applications for absentee ballots). Defendants argue that not mailing the absentee ballot applications would violate the Voting Rights Act, 42 U.S.C. § 1971, because it would place a restriction only on the City of Detroit, which is predominately African-American. Defendants further argue that not mailing the applications would violate the Voting Accessibility for the Elderly and Handicapped Act, 42 U.S.C. § 1973ee. (Def.'s Mot. Br. at 5-7.) Plaintiff filed her response to this motion on September 7, 2005, in which she argued that Defendant's removal and motion to dismiss represent only an attempt to avoid Judge Kelly's injunction.

On September 6, 2005, Plaintiff filed a "Motion to Remand or, in the Alternative, for Order to Show Cause Why Defendants Should Not be Held in Contempt ...," arguing that her Complaint raises only

Page 932

state law issues and should therefore be remanded. She also argues that Defendants should be held in contempt for their alleged violation of Judge Kelly's injunction and a receiver should be appointed in light of their purported willful refusal to abide by the state court's order.4

On September 7, 2005, Defendants filed a "Supplemental Notice of Removal," in which they give "supplemental notice" that the basis for subject matter jurisdiction is the 15th Amendment of the United States Constitution, and the Voting Rights Act. Specifically, Defendants allege that this lawsuit attempts to place a restriction only upon the City of Detroit, which is predominately an African-American city. Defendants argue that these restrictions violate the Voting Rights Act. 42 U.S.C. §§ 1971 & 1973.

On September 7, 2005, Plaintiff filed a supplemental brief in support of her motion to remand, in response to Defendants' supplemental notice of removal. Plaintiff argues that Defendants have still failed to articulate a basis for subject matter jurisdiction and Plaintiff should be awarded costs and fees.

On September 8, 2005, the court conducted a status conference and discussed, among other things, the court's jurisdictional concerns. As agreed upon by counsel, the court allowed Defendants time to brief the issue of subject matter jurisdiction. Thus, on September 9, 2005, the court issued its "Order to Show Cause," directing Defendants to show cause why this case should not be remanded to Wayne County Circuit Court for lack of subject matter jurisdiction.

On September 12, 2005, Defendants contemporaneously filed a "Second Supplemental Notice of Removal," and their combined response to the courts "Order to Show Cause" and to Plaintiff's "Motion for Remand...." Defendants assert that subject matter jurisdiction exists over this controversy pursuant to 28 U.S.C. § 1441, the general removal statute, and 28 U.S.C. § 1443, the civil rights removal statute. Further, Defendants again rely on the Voting Rights Act and the 14th and 15th Amendments of the United States Constitution.5

The court conducted a hearing on the jurisdictional matter on September 13, 2005. At the hearing, the court allowed both sides time to argue their respective positions and elaborate on any matters which they had raised in their previously filed briefs. At no point did either side request additional time to present further argument or evidence to the court. Nonetheless, on September 14, Defendants filed a "Request to Schedule USC 1446(C)(5) Evidentiary Hearing," arguing that an evidentiary hearing was required under 28 U.S.C. § 1446(c)(5). After Plaintiff filed a response to this motion, Defendants withdrew the motion.6

Page 933


It is axiomatic that federal courts are courts of limited jurisdiction. The removing defendants bear the burden of establishing federal subject matter jurisdiction. See Ahearn v. Charter Township of Bloomfield, 100 F.3d 451, 453-454 (6th Cir.1996) (citing Carson v. Dunham, 121 U.S. 421, 425-26, 7 S.Ct. 1030, 30 L.Ed. 992 (1887)). "Only state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant." Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Thus, in cases such as this one where there is no diversity of citizenship, federal-question jurisdiction is required. Id.

Removal statutes should be given strict construction. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-109, 61 S.Ct. 868, 85 L.Ed. 1214 (1941) ("`Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the [the removal] statute has defined.'") (quoting Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 78 L.Ed. 1248 (1934)); see also Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 534 (6th Cir.1999) ("In interpreting the statutory language, we are mindful that the statutes conferring removal jurisdiction are to be construed strictly because removal...

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    ...exists in this case as pleaded. Gunn v. Minton , 568 U.S. 251, 258, 133 S.Ct. 1059, 185 L.Ed.2d 72 (2013) ; see Taylor v. Currie. 386 F. Supp. 2d 929, 934 (E.D. Mich. 2005) (explaining that a mere reference to federal law or federal right not sufficient to confer subject matter jurisdiction......

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