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PENNSYLVANIA v. CIVILL

June 17, 1970

COMMONWEALTH OF PENNSYLVANIA
v.
Leonard A. CIVILL


Gourley, Senior District Judge.


The opinion of the court was delivered by: GOURLEY

This is a Petition seeking the removal, pursuant to Section 1443 of Title 28 of the United States Code, of a criminal proceeding pending in the Criminal Division of the Court of Common Pleas of Allegheny County, Pennsylvania. Alternatively, declaratory relief is sought under the Declaratory Judgment Act, 28 U.S.C. § 2201, or injunctive or "other appropriate relief" pursuant to the Civil Rights Statutes, 42 U.S.C. § 1983 and § 1985. Upon receipt and review of the Petition, the service and filing of which effectuates removal under 1446(e) of Title 28 of the United States Code, the Court entered an Order on the 5th day of June, 1970, summoning the relevant State records, directing the District Attorney of Allegheny County to file a responsive pleading and calling for oral argument upon the legal sufficiency of the Petition.

 On June 10, 1970, the District Attorney filed a Motion to Dismiss, which should and will be treated as a motion to remand the criminal proceedings to the State jurisdiction. The Court entertained the oral argument of counsel upon the Petition and responsive Motion on June 11, 1970. Having reviewed the Petition, responsive Motion and State records, and upon consideration of the oral arguments of counsel and the law applicable herein, the Court is of the opinion that the instant criminal proceedings must be remanded to the State jurisdiction.

 Petitioner has been indicted upon counts of conspiracy to obstruct public justice, attempted subornation of perjury, bribery and corrupt solicitation in the Criminal Division of the Court of Common Pleas of Allegheny County at No. 4403, June Sessions, 1970. The indictment is founded upon charges that petitioner, while acting as a Police Magistrate for the City of Pittsburgh, conspired with another to secure the dismissal of a criminal prosecution against one Wesley Rogers by offering a sum of money to two police officers to induce them to testify falsely before a Grand Jury in the Rogers prosecution. The indictment of petitioner has been returned only after unusually prolonged preliminary proceedings wherein counsel for petitioner filed numerous motions and appeals from the denial thereof. Prior to indictment, the original Complaint, filed against petitioner before Police Magistrate Ernest Jones, was withdrawn, and a new Complaint has been filed before the Honorable Robert Van der Voort, specially sitting as a committing magistrate.

 In the Petition filed in this Court, a right to relief is asserted to exist on the basis of the following allegations:

 
1. That the news media of Allegheny County have conspired with unidentified and unknown persons to prevent a fair trial, to prejudice the grand jury, to publicly disgrace petitioner, and to convict petitioner before the eyes of the public prior to trial.
 
2. That members of the prosecution have conferred ex-parte with members of the judiciary to the prejudice of petitioner.
 
3. That petitioner has been precluded from challenging the originally filed Complaint by virtue of the withdrawal of it and refiling of a new Complaint.
 
4. That petitioner has been precluded from challenging the legality of the proceedings before Judge Van der Voort, sitting as magistrate, by virtue of a Pennsylvania rule of procedure to the effect that the legality of proceedings before a magistrate may not be questioned subsequent to the granting of bail.
 
5. That Sections 6 and 9 of the Act of May 11, 1925, P.L. 561, 17 P.S. § 1276 and § 1279, are violative of the Fourteenth Amendment inasmuch as said provisions require the selection of jurors from those who are "taxed" and appear upon "taxable" lists of the County wherein the jury is to be drawn.

 It is the considered opinion of the Court that the aforementioned allegations, even if accepted as true, are insufficient upon which to found a removal to this Court under 28 U.S.C. § 1443. Reviewing the history of this removal provision in the two companion cases of Georgia v. Rachel, 384 U.S. 780, 86 S. Ct. 1783, 16 L. Ed. 2d 925 (1965) and City of Greenwood v. Peacock, 384 U.S. 808, 825, 86 S. Ct. 1800, 16 L. Ed. 2d 944 (1965), the Supreme Court of the United States has made it plain that the scope of the provision is highly circumscribed and permits of removal only in specific and well defined circumstances.

 As interpreted by the Supreme Court in City of Greenwood v. Peacock, supra, at 821, 86 S. Ct. 1800 subsection (2) of Section 1443 permits of removal only by federal officers and those acting under them. The State charges against petitioner having arisen out of his alleged conduct as an official of the City of Pittsburgh, this subsection is inapplicable to him. Accordingly, if petitioner were entitled to removal, it could only be pursuant to subsection (1) of Section 1443.

 Subsection (1) affords a right of removal to any person who is denied or cannot enforce in the courts of a State "a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof." Interpreting the scope of this subsection, the Supreme Court stated in Georgia v. Rachel, supra, 384 U.S. at 792, 86 S. Ct. at 1790:


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