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WRIGHT v. LONDON GROVE TWP.

June 2, 1983

Virginia E. WRIGHT and Paris E. Wright
v.
LONDON GROVE TOWNSHIP



The opinion of the court was delivered by: MCGLYNN

 McGLYNN, District Judge.

 I have before me a petition seeking the removal of a criminal proceeding pending in the Court of Common Pleas of Chester County, Pennsylvania. Section 1446(c)(4) of Title 28 provides that when a petition for the removal of a criminal action is filed:

 
The United States district court to which such petition is directed shall examine the petition promptly. If it clearly appears on the face of the petition and any exhibits annexed thereto that the petition for removal should not be granted, the court shall make an order for its summary dismissal.

 For the reasons which follow, I conclude that the petition should not be granted. The case will be remanded to the state court.

 On March 1, 1982, petitioners were convicted and fined by a district justice for violations of the London Grove Township Zoning Ordinance of 1974. The specific violations involved the moving of a second mobile home onto their property. Petitioners filed a timely appeal to the Court of Common Pleas and are entitled to a trial de novo.1

 Petitioners assert that their right to removal is based on the civil rights removal statute, 28 U.S.C. § 1443, and also upon diversity of citizenship. At the outset it is clear that diversity of citizenship is not a proper basis for removal of a criminal proceeding. In any event, the defendants seeking removal bear the burden of establishing that the requirements for removal are met. Wilson v. Republic Iron and Steel Co., 257 U.S. 92, 42 S. Ct. 35, 66 L. Ed. 144 (1921). Petitioners have not made any averments as to the citizenship of any party. Even if diversity of citizenship were a proper basis for removal here, petitioners would have to show that neither of them are citizens of Pennsylvania, the state in which the action was brought. See 28 U.S.C. § 1441(b). Accordingly, I find that the petition on its face will not support removal on the basis of diversity of citizenship.

 The civil rights removal statute, 28 U.S.C. § 1443, states:

 
Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:
 
(1) Against any person who is denied or cannot enforce in the courts of such 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;
 
(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.

 The petition for removal tracks the language of § 1443 and essentially makes three sets of allegations. First, petitioners characterize the Pennsylvania Municipal Planning Code, 53 P.S. 10101 et seq., as amended, as "a law calling for the equal Civil Rights in the use and ownership of land in a reasonable non-discriminatory manner." The zoning laws are said to be customarily applied in Chester County in a way that discriminates against minorities. Petitioners assert that their equal protection and due process rights have been violated by this criminal prosecution. Second, petitioners allege that these same laws are being applied in a way that discriminates against females. Third, petitioners claim that the district justice violated their Sixth Amendment right by denying their request for assignment of counsel and their Fifth and Fourteenth Amendment right not to have their property taken without due process of law by taking the cash they posted as security to pay the fine imposed.

 In two companion cases decided in 1966, the Supreme Court made it plain that the scope of § 1443 is highly circumscribed and permits removal only in specific and well-defined circumstances. As interpreted in City of Greenwood v. Peacock, 384 U.S. 808, 86 S. Ct. 1800, 16 L. Ed. 2d 944 (1966), subsection (2) of § 1443 only affords a right of removal to federal officers and those acting under them. Accordingly, petitioners may only invoke § 1443(1) to secure removal.

 The scope of § 1443(1) was defined in Georgia v. Rachel, 384 U.S. 780, 86 S. Ct. 1783, 16 L. Ed. 2d 925 (1966). The Supreme Court emphasized that defendants are entitled to removal only if both requirements of that subsection are met. They must show both that the right on which they rely is a "right under any law providing for . . . equal civil rights" and that they are "denied ...


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