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Davis v. Glanton

March 3, 1997

KENNETH E. DAVIS; JAMES S. ETTELSON; ALAN C. KESSLER; FRANK LUTZ; JOSEPH M. MANKO; ORA R. PIERCE; JAMES J. PRENDERGAST; BRIAN D. ROSENTHAL; DAVID A. SONENSHEIN; HOWARD L. WEST; GLORIA P. WOLEK; PHYLLIS L. ZEMBLE

v.

RICHARD GLANTON, INDIVIDUALLY AND AS A TRUSTEE OF THE BARNES FOUNDATION; NIARA SUDARKASA, INDIVIDUALLY AND AS A TRUSTEE OF THE BARNES FOUNDATION; SHIRLEY A. JACKSON, INDIVIDUALLY AND AS A TRUSTEE OF THE BARNES FOUNDATION; CHARLES FRANK, INDIVIDUALLY AND AS A TRUSTEE OF THE BARNES FOUNDATION RICHARD GLANTON, NIARA SUDARKASA AND SHIRLEY A. JACKSON,

APPELLANTS



On Appeal From the United States District Court For the Eastern District of Pennsylvania (D.C. Civ. No. 96-cv-01800)

Before: BECKER, ROTH, Circuit Judges, and BARRY, District Judge. *fn1

BECKER, Circuit Judge.

Argued: January 30, 1997

Filed March 3, 1997

OPINION OF THE COURT

This is an appeal by certain trustees of the Barnes Foundation, who are also African-American citizens. It requires us to determine whether a state court defamation action filed against them by certain commissioners of Lower Merion Township, alleging that the Trustees had falsely accused the Commissioners of racist official conduct, is removable to federal district court pursuant to the civil rights removal statute, 28 U.S.C. Section(s) 1443(1), on the ground that the defamation action represents an attempt to retaliate against the Trustees for exercising their federally protected right to assert, in a federal lawsuit, that they were discriminated against by the Commissioners on racial grounds. Although the Trustees present an emotionally appealing argument for removal, we conclude that they have failed to satisfy the narrow and well-defined requirements for Section(s) 1443(1) removal as explicated in State of Georgia v. Rachel, 384 U.S. 780 (1966), and City of Greenwood v. Peacock, 384 U.S. 808 (1966). We will therefore affirm the order of the district court remanding the removed action to the state court from whence it came.

I. Facts & Procedural History

The Barnes Foundation is a non-profit Pennsylvania corporation located on Latches Lane, Lower Merion Township, Montgomery County, Pennsylvania. Its history is well known, and for present purposes we need recount only that the late Dr. Albert C. Barnes created the Barnes Foundation, by Indenture and Agreement dated December 6, 1922, and that the Indenture provides that, following the expiration of the terms of the Foundation's Trustees in place at Barnes' death, four of the five Foundation Trustees are to be nominated by Lincoln University, a historically African-American institution, with a fifth trustee to be named by Girard Bank (now Mellon Bank). By 1990, with the death or resignation of a number of former trustees, the Foundation's Board of Trustees became predominantly African-American. At the time of the acts complained of, Richard Glanton, Niara Sudarkasa, Shirley Jackson, and Charles Frank (defendants in the state defamation action) were trustees, and all except for Mr. Frank are African-American and appellants here. *fn2

For present purposes, the material elements of this Lower Merion Township-Barnes Foundation dispute began on January 18, 1996, when the Foundation filed an action under 42 U.S.C. Section(s) 1983 and Section(s) 1985(3), claiming that the Township, the members of the Township Board of Commissioners, and certain of the Foundation's Latches Lane neighbors had conspired to harass, intimidate, interfere with, and discriminate against the Foundation. *fn3 The federal civil rights complaint alleges that the Township and the Commissioners, in concert with the neighbors, imposed parking, police, fire, and zoning requirements and regulations in such a way as to injure the Foundation and interfere with its use of its property, and that they enforced these requirements and regulations against the Foundation more aggressively than they did against other similarly situated institutions.

The gravamen of the Foundation's federal civil rights action is that this adverse treatment was motivated by racial prejudice engendered by the fact that (1) the majority of the Foundation's Trustees are African-American; (2) Glanton, the President of the Board, is African-American; and (3) the Foundation is controlled by a historically African-American university. The complaint alleges that the Township and the Commissioners violated the Foundation's constitutional rights, and that they should be enjoined from continuing such violations.

On March 4, 1996, the Commissioners filed a state court defamation action in the Court of Common Pleas of Montgomery County against Glanton and the other members of the Foundation's Board. The state court defamation action is based upon two sets of allegedly defamatory statements: (1) certain statements attributed to Glanton in a Philadelphia Inquirer article dated November 27, 1995, that the Commissioners had engaged in "thinly disguised racism," and that "[t]here is no way that you cannot see racism in the way [the Commissioners] are treating the Foundation"; and (2) statements made in the Barnes Foundation's complaint in the federal civil rights action.

On March 7, 1996, the Trustees filed a Joint Notice of Removal, claiming that federal removal jurisdiction existed pursuant to 28 U.S.C. Section(s) 1441, 1443(1), and 1651. *fn4 The Trustees contend that the defamation suit represents an attempt by the Commissioners to retaliate against the Trustees for exercising their federally protected rights. Indeed, the Trustees assert that the very filing of the defamation action violates their civil rights, and, at all events, that the Foundation and the Trustees will be denied their right to be free from unconstitutional race discrimination if the Commissioners are permitted to proceed in state court.

The Commissioners quickly filed a motion to remand, contesting all three grounds for removal. The district court granted the Commissioners' motion, determining that removal was improper on all of the grounds asserted by the Trustees. Addressing the requirements of 1443(1), the district court held that the Trustees have never demonstrated that they would be unable "to protect their rights" in state court as required by Georgia v. Rachel, 384 U.S. 780 (1966), and City of Greenwood v. Peacock, 384 U.S. 808 (1966). The district court also held that removal pursuant to Section(s) 1441 was improper because the Trustees had failed to show that federal law was an essential element of the Commissioners' state court defamation action. In so holding, the court ruled that the state action "cannot be viewed as a retaliatory measure for bringing the federal claim, but is an independent defamation action in its own right." Finally, the district court found that the state court defamation action was not removable under Section(s) 1651, better ...


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