Greenberg v. Veteran Conference Memorandum of the Removing Respondents in Support of Removal

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Hon. Gerard L. Goettel 
United States District Court for 

the Southern District of New York 
United States Courthouse 
101 East Post Road 
White Plains, New York 10601

Matter of Greenberg v. Veteran 
______89 civ. 0591 (GIG)______

Dear Judge Goettel:

In advising of the February 2, 1989 conference in 
this matter, Your Honor's law clerk reported to us the 
Court's instruction that the parties be prepared to discuss 
several_legal issues concerning removal of this Article 78 
proceeding from the State court. Accordingly, on behalf of 
all removing respondents, we have prepared and served on 
opposing counsel a memorandum in support of removal.

We respectfully ask leave to submit the memorandum, a copy of which is enclosed.

Respectfully, 

Jay L. Himes
Enclosure
cc: All Counsel

J R .
J R

BY HAND



UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

X
In the Matter of the Application of :
MYLES GREENBURG and FRANCES M.
MULLIGAN, : 89 Civ.

(GLG)
Petitioners, :

-against-
ANTHONY F. VETERAN, et al.,

Respondents.
X

CONFERENCE MEMORANDUM OF THE 
REMOVING RESPONDENTS 
IN SUPPORT OF REMOVAL

0591

PAUL, WEISS, RIFKIND, WHARTON & GARRISON
ATTORNEYS AT LAW

1285 AVENUE OF THE AMERICAS, NEW YORK, N.Y. 10019



UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

X
In the Matter of the Application of :
MYLES GREENBURG and FRANCES M.
MULLIGAN, : 89 Civ. 0591

(GLG)
Petitioners, :

-against-
ANTHONY F. VETERAN, et al.,

Respondents.
X

CONFERENCE MEMORANDUM OF THE 
REMOVING RESPONDENTS 
IN SUPPORT OF REMOVAL

Respondents Veteran and Tolchin, together with the 
additional respondents who joined the removal petition, 
respectfully ask leave to submit this memorandum, which we 
believe will be of assistance to the Court at the pretrial 
conference scheduled for February 2, 1989.

We understand that the Court wishes the parties to 
address the following legal questions: (1) whether an
Article 78 proceeding is removable; (2) whether removal is 
appropriate here in any event; and (3) whether the Pullman 
abstention doctrine has any application.



2

We discuss these matters below. As will be evi­
dent, the case is properly before this Court. There is no 
barrier to hearing the Article 78 proceeding.

I.
AN ARTICLE 78 PROCEEDING IS 
A REMOVABLE "CIVIL ACTION”

The two removal statutes relied on —  28 U.S.C.
§§ 1441(b) and 1443(2) —  each apply to "civil actions." In 
the context of removal, however, the term "civil action" 
embraces virtually all actions or proceedings between adverse 
parties that are civil in nature, including Article 78 
proceedings.

In Matter of Quirk v. State of New York Office of
Court Administration. 549 F. Supp. 1236 (S.D.N.Y. 1982),
Judge Haight upheld removal of an Article 78 proceeding under
§ 1443(2), the same civil rights removal statute invoked
here. Reviewing the case law, the Court wrote:

These cases make clear that the crucial issue in civil 
rights removal is not, as plaintiffs would urge, the 
state law character of the proceeding, but the relation­
ship between the proceeding and federal civil rights 
law. Id. at 1241.

Quirk is part of an extensive body of case law —  
developed mostly under the general removal statute, § 1441, 
or its predecessors —  establishing that the term "civil 
action" is broad in scope. By way of example, in Range Oil 
Supply Co. v. Chicago, Rock Island & Pacific RR. Co., 248



3

F.2d 477 (8th Cir. 1957), the court of appeals held removable 
a proceeding to review whether a state agency's order was 
unlawful and unreasonable. The Article 78 review sought here 
is analogous. The ordinarily (but not necessarily) summary 
nature of the proceeding has no bearing on removal. See 1A 
Moore's Federal Practice  ̂ 0.157[4.-3] at 73 (1987) ("[a]
proceeding that is civil in nature is a civil action although 
it is summary in character;" footnote omitted); Hetherington 
& Berner, Inc, v. Melvin Pine & Co., 256 F.2d 103, 106-07 (2d 
Cir. 1958) (motion to confirm arbitration award was removable) 
Lummus Co. v. Commonwealth Oil Refining Co.. 195 F. Supp. 47, 
54-55 (S.D.N.Y. 1961) (motion to compel arbitration was 
removable).

In sum, as one commentator has said:
The limitation to civil actions is not particularly 
important, however, since the term "civil action" has 
been construed broadly. . . .  In effect, . . . the 
limitation . . . may mean no more than that criminal,
and perhaps penalty, actions are not removable except as 
otherwise provided by statute.

14A Wright, Miller & Cooper, Federal Practice and Procedure
§ 3721 at 200-01 (1985) (footnotes omitted); see also 1A
Moore's Federal Practice, supra. f 0.157 [4.-3] at 75.

A divided Second Circuit panel recently upheld 
removal of an Article 78 proceeding in a case arising from 
the civil rights litigation against Yonkers. Yonkers Racing 
Corp. v. City of Yonkers. 858 F.2d 855 (2d Cir. 1988),



petition for cert, filed, 57 U.S.L.W. 3455 (Jan. 10, 1989)
(No. 88-1029). There, as part of the consent decree 
resolving the case, the district court directed Yonkers to 
condemn two pieces of land as housing sites. Yonkers began 
the condemnation, and the two landowners (the "condemnees") 
began an Article 78 proceeding, a recognized state law 
vehicle for defending the Yonkers condemnation. See 858 F.2d 
at 862. The district court directed Yonkers to remove the 
Article 78 proceeding, and it thereafter denied remand.

The issue that divided the Second Circuit panel was 
not whether an Article 78 proceeding was removable, but 
whether Yonkers was a "defendant," and thus entitled to 
remove. That issue existed because the Supreme Court has 
held that in condemnation cases, for removal purposes, "the 
condemner is the plaintiff and the condemnee is the defen­
dant." Id. at 862. Yonkers was the condemnor -- and, as 
such, not entitled to remove. However, in the Article 78 
proceeding challenging the condemnation —  necessitated by 
state law —  it was a respondent (equivalent, of course, to a 
defendant).

A majority of the court of appeals declined to 
resolve whether Yonkers could remove in these circumstances 
under either 28 U.S.C. §§ 1441 or 1443, finding that the All 
Writs Act, 28 U.S.C. § 1651, furnished an independent 
jurisdictional basis. Id. at 863-65. The dissent would have



5

held that Yonkers was a "plaintiff" for removal purposes, and 
that the All Writs Act did not authorize an order of removal. 
Id. at 873-76.

The unique removal issue in Yonkers Racing arose 
because state law resulted in a proceeding in which the 
removing party was only nominally a defendant. This action 
raises no similar issue. The Article 78 proceeding filed to 
review Supervisor Veteran's decision rejecting the Mayfair 
Knollwood incorporation petition is a removable "civil 
action." As demonstrated below, respondents properly removed 
the case under 28 U.S.C. §§ 1443(2) and 1441(b) M

II.
CIVIL RIGHTS REMOVAL IS 

APPROPRIATELY INVOKED HERE
Section 1443(2) is a relatively rarely used civil 

rights removal provision, the antecedents of which go back to 
an act passed right after the Civil War by the 39th Congress. 
As relevant here, § 1443(2) permits removal of any action:

1/ As other examples of removal of Article 78 proceedings, 
see Committee of Interns & Residents v. New York State 
Labor Relations Bd.. 420 F. Supp. 826 (S.D.N.Y. 1976) 
(case remanded for lack of federal question jurisdiction 
under 28 U.S.C. § 1441[b]); Johnson v. Jumelle. 64 
F.R.D. 708 (S.D.N.Y. 1974) (denying motion to dismiss 
proceeding challenging employment termination; no issue 
of remand raised).



6

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 second part of the statute — ■ the "refusal" clause —  is 
the basis for removal in this case.-^

The language of the refusal clause —  and that of 
§ 1443(2) generally —  is not a model of clarity. Thus, 
interpretation of the statute rests heavily on its origin and 
historical development. Then District Judge Newman discussed 
the refusal clause at length in Bridgeport Education Ass'n v. 
Zinner, 415 F. Supp. 715 (D. Conn. 1976).

Bridgeport Education arose from an action brought 
by Connecticut civil service employees, who alleged that 
state and local officials had violated state law in making 
minority group appointments. The officials filed a removal 
petition, contending that "following civil service rules, 
instead of making the minority group appointments here 
challenged, would have violated federal statutes barring

2/ The first part of the statute —  the "color of
authority" provision —  applies only to "federal 
officers or agents and those authorized to act with or 
for them in affirmatively executing duties under any 
federal law providing for equal civil rights."
Greenwood v. Peacock. 384 U.S. 808, 824 (1966). This is 
not a likely basis for removal because neither 
Supervisor Veteran nor Clerk Tolchin is a federal 
officer or agent, and any argument that they were acting 
with or for such persons would be weak.



7

racial discrimination in employment." Id. at 717. Judge 
Newman declined to remand the case.

After a review described by the Second Circuit as 
"exhaustive and scholarly," White v. Wellington, 627 F.2d 
582, 585 (2d Cir. 1980), Judge Newman held the following:

1. Those persons entitled to remove under the 
refusal clause include "any public official of a state or 
municipality who would be considered to be acting under color 
of state law." 415 F. Supp. at 721.

2. The refusal clause permits removal:
[W]hen the removing defendants make a colorable claim 
that they are being sued for acting pursuant to a state 
law which, though facially neutral, would produce or 
perpetuate a racially discriminatory result as applied.

Id. at 722.
3. The federal law that the removing defendant 

may rely on in refusing to act must be "any law providing for 
equal rights" —  the expression used in the first part of the 
statute and one that the Supreme Court has construed to mean 
"equal civil rights." Id. at 722. See Greenwood v. Peacock, 
384 U.S. 808, 824 (1966).

4. The inconsistency between federal civil rights
law and state law that forms the basis for the refusal to act
must be "colorable" —  but it need not be direct or expressed
in the statutes themselves. As the court explained:

The statute creates no stringent standard as to the 
nature of the inconsistency. It establishes a subjec-



8

tive test, to be met by evidence of what in fact was the 
reason for the defendants' failure to act.

Id. at 722.
In White. the Second Circuit relied heavily on 

Judge Newman's decision in reversing a remand order in a 
similar civil service appointment case. The court of appeals 
agreed that the refusal clause applied to "local and munici­
pal officials." 627 F.2d at 585 (footnote omitted). The 
court also held that defendants could remove by alleging "a 
colorable claim that they are being sued for not acting 
'pursuant to a state lav; which, though facially neutral, 
would produce or perpetuate a racially discriminatory result 
as applied'." Id. at 586, quoting Bridgeport Education, 415 
F. Supp. at 722. See also Buffalo Teachers Federation v.
Board of Education. 477 F. Supp. 691 (W.D.N.Y. 1979) (local 
school board officials could remove under the refusal clause).

These authorities establish that this matter is 
removable under the refusal clause.

First, Supervisor Veteran and Clerk Tolchin are 
municipal officials. They are being sued for rejecting the 
Mayfair Knollwood incorporation petition —  clearly acts in 
their official capacities, taken under color of state law.

Second, the New York Village Law, under which the 
Mayfair Knollwood incorporation petition was filed, is 
neutral on its face. Supervisor Veteran rejected the peti­



9

tion in part because the state law, "though facially neutral, 
would produce or perpetuate a racially discriminatory re­
sult." Bridgeport Education, 415 F. Supp. at 722.

Third, Supervisor Veteran relied on federal consti­
tutional protections against race discrimination as grounds 
for rejecting the Mayfair Knollwood petition. There can be 
no genuine doubt that these provisions are laws "providing 
for equal civil rights." See, e.g., Gomillion v. Lightfoot, 
364 U.S. 339 (1960) (fifteenth amendment prohibits gerryman­
dering a city on the basis of race).

Finally, the basis for the refusal to act is clear.
As Supervisor Veteran said in his decision:

[I]t is my obligation as a public official to defend the 
constitution and to reject the petition on the grounds 
that its purpose is to discriminate against black 
persons, to segregate them from whites by the imposition 
of political barriers, and to prevent the natural 
expansion of the black population in the Town of 
Greenburgh.

* * *
[I]t is my obligation as a public official to defend the 
constitution and to reject the petition on the grounds 
that its purpose is to deny homeless persons needed 
services, to exclude homeless persons, and to racially 
discriminate against homeless persons who are predomi­
nantly black.

(Decision, pp. 4, 7) Plainly, there is "a colorable claim" 
that the refusal to act was based on the ground that applica­
tion of the Village Law would be inconsistent with federal 
civil rights protection. Cf. Cavanagh v. Brock, 577 F. Supp.



10

176 (§ 1443(2) removal proper where defendants relied on
federal equal protection clause and voting rights act in

. . . 3 /refusing to adhere to state constitution)
Accordingly, removal is proper under the refusal

clause of § 1443(2). Moreover, because the Article 78
petitioners themselves pleaded a federal civil rights claim
under 42 U.S.C. §§ 1983 and 1988, there also is federal
question removal jurisdiction under 28 U.S.C. § 1441(b).

3/ It is immaterial that Supervisor Veteran had several 
bases for rejecting the incorporation petition. In 
White. the Second Circuit held that a removal petition 
was "analogous to a pleading" and may include 
"alternative, inconsistent claims and defenses. . . . "  
627 F.2d at 587. Thus, so long as federal civil rights 
laws furnish a ground for Supervisor Veteran's refusal 
to act, it is of no moment that there were other grounds 
as well. Cf. Siler v. Louisville & Nashville RR. Co.. 
213 U.S. 175; 190-92 (1909) (a colorable federal claim 
is sufficient to invoke federal question jurisdiction; 
thereafter, the court may decide the case on the basis 
of state law).



11

THE "PULLMAN" DOCTRINE HAS NO APPLICATION 
TO A REMOVAL UNDER THE REFUSAL CLAUSE

Railroad Commission of Texas v. Pullman Co., 312 
U.S. 496 (1941), counsels in favor of abstention where a 
federal constitutional claim is premised on an unsettled 
state law question. The doctrine, of course, is intended to 
avoid potentially needless friction between federal and state 
law by permitting state courts first to resolve unsettled 
state law questions. See id. at 500.

However, the Pullman doctrine —  a judicial princi­
ple of self-restraint —  has no application to a case removed 
by a state official under § 1443(2). The very purpose of 
§ 1443(2) is to give a federal forum to a state official who 
has been sued for refusing to do acts under state law because 
of the supremacy of federal civil rights law. Congress 
itself has directed that the federal court's doors be open in 
these limited circumstances —  not despite the friction 
between federal law and state law, but rather because of it. 
As Representative Wilson said in 1866, during enactment of 
the statute from which § 1443(2) has evolved:

[T]his amendment is intended to enable State officers, 
who shall refuse to enforce State laws discriminat­
ing . . .  on account of race or color, to remove their 
cases to the United States Courts when prosecuted for 
refusing to enforce those laws.

III.



12

Cong. Globe, 39th Cong., 1st Sess. 1367 (1866), quoted in 
Bridgeport Education, supra, 415 F. Supp. at 718.

Thus, the intent of the statute requires that the 
state official's choice of the federal forum be respected.
As Judge Kaufman wrote in White, supra, 627 F.2d at 590 
(concurring opinion):

[I]t is realistic to suppose that state officials sued 
for alleged derelictions of duty will normally prefer a 
state forum's adjudication of the controversy. When 
state officials exercise the extraordinary right of 
seeking removal, it would seem to be a significant 
indication that they are forgoing their accustomed forum 
because the federal issue they seek to litigate is so 
substantial.

Judge Newman similarly reminded that it is "those more subtle 
cases" —  not the easy ones —  "where it is most appropriate 
for the difficult issue of the availability of the asserted 
federal defense to be decided by a federal court."
Bridgeport Education. 415 F. Supp. at 723. Accordingly, as 
the Second Circuit has said, "the right to remove [under
§ 1443(2)] is statutory, jurisdictional and absolute

. . . . 4/. . . when it is found to exist." White. 627 F.2d at 586.—

4/ 28 U.S.C. § 1447(d) —  covering the appealability of
remand orders —  also reflects a congressional 
determination that a civil rights case removed under 
§ 1443 is particularly within the province of the 
federal court. Section 1447(d) bars appellate review of 
remand orders, except where the case is removed under 
§ 1443. Then, the remand is immediately appealable.

(Continued)



13

Avoidance of friction between federal and state law 
—  the consideration underlying Pullman abstention —  there­
fore does not apply to a § 1443(2) removal. Indeed, whereas 
Pullman abstention often is ordered because state officials 
resist federal adjudication, § 1443(2) jurisdiction, by 
contrast, arises only because state officials prefer it.
See, e. g. , Harris County Commissions Court v. Moore, 420 U.S. 
77, 82 (1975) (court commissioners urged abstention); Reetz 
v. Bozanich, 397 U.S. 82, 84-85 (1970) (fish and game commis­
sioner urged abstention).

In consequence, the Pullman doctrine is no obstacle
. . . 5 /to this Court's proceeding with the Article 78 proceeding.—7

(Continued)
See Georgia v. Rachel, 384 U.S. 780, 787 and n. 7 
(1965); People v. Galamison, 342 F.2d 255, 257 (2d 
Cir.), cert, denied, 380 U.S. 977 (1965).

5/ Moreover, the Pullman doctrine applies only when a state 
statute "is of an uncertain nature, and is obviously 
susceptible of a limiting construction." Hawaii Housing 
Authority v. Midkiff, 467 U.S. 229, 237 (1984), quoting 
Zwickler v. Koota, 389 U.S. 241, 251 and n. 14 (1967). 
Village Law § 2-206(1) sets forth objections to the 
legal sufficiency of an incorporation petition that may 
be heard. Neither that provision, nor any other part of 
the Village Law, expressly authorizes application of 
consritutional or statutory constraints. The statutory 
scheme is relatively clear, and there is no apparent 
limiting construction from the face of law. On the 
other hand, the New York Court of Appeals has held that 
a voter ballot measure may be removed from the ballot 
before the vote where, if enacted, it would be unlawful. 
See, e.g., Matter of Fossella v. Dinkins. 66 N.Y.2d 162,

(Continued)



14

Conclusion
For these reasons, the removal of the Article 78 

proceeding to this Court was proper. This Court may hear the 
case.

Dated: New York, New York
February 1, 1989

Respectfully submitted,

&. •u lK  h  s ' * * * }  j >  feA
PAUL AGRESiA, ESQ!
Town Attorney 
Town of Greenburgh 
P.0. Box 205
Elmsford, New York 10523 
(914) 993-1546
Attorney for Respondents: 
Anthony F. Veteran and 
Susan Tolchin
CUDDY & FEDER 
90 Maple Avenue 
White Plains, New York 10160 
(914) 761-1300

By (fl tfZ,
Ruth E. Roth

(Continued)
485 N .E.2d 1017, 495 N.Y.S.2d 352 (1985). Only a modest 
extension of this principle is required to hold that —  
regardless of the Village Law's facial neutrality —  
Supervisor Veteran was entitled to decline to permit a 
vote on incorporation because, if approved, the new 
village would be unconstitutional or otherwise unlawful. 
Such a holding, confirming the supremacy of federal law, 
seems inevitable. Thus, this is a particularly 
inappropriate case for Pullman abstention.



15

Attorneys for Respondents: 
Keren Developments, Inc. and 
Robert Martin Company

£ ■ 62 4n X -
Ruth E. Roth 
Respondent Pro Se 
90 Maple Avenue 
White Plains, New York 10601 
(914) 761-1300

Of Counsel:
Cameron Clark 
Melinda S. Levine 
William N. Gerson

-and-
Local counsel for Respondents: 
Yvonne Jones, Odell A. Jones, 
Melvin Dixon, Geri Bacon,
Mary Williams, James Hodges 
and National Association for the 
Advancement of Colored People, Inc. 
White Plains/Greenburgh Branch
GROVER G. HANKINS, ESQ.
NAACP, Inc.
4805 Mount Hope Drive 
Baltimore, MD 21215-3297 
(301) 486-9191

PAUL, WEISS, RIFKIND, WHARTON & GARRISON 
1285 Avenue of the Americas
New York, NY 10019 
(212) 373-3000
By_ U- /

Himes
Attorneys for Respondents:
Anita Jordan, April Jordan, Latoya 
Jordan, Anna Ramos, Lizette Ramos, 
Vanessa Ramos, Gabriel Ramos,
Thomas Myers, Lisa Myers, Thomas 
Myers, Jr., Linda Myers, Shawn Myers, 
and National Coalition for the Homeless



Attorney for Respondents:
Yvonne Jones, Odell A. Jones,
Melvin Dixon, Geri Bacon,
Mary Williams, James Hodges 
and National Association for the 
Advancement of Colored People, Inc. 
White Plains/Greenburgh Branch

Of Counsel:
Robert M. Hayes, Esq. 
Virginia G. Shubert, Esq. 
COALITION FOR THE HOMELESS 
105 East 22nd Street 
New York, NY 10010 
(212) 460-8110
Julius L. Chambers, Esq. 
John Charles Boger, Esq. 
Sherrilyn Ifill, Esq.
99 Hudson Street 
New York, NY 10013 
(212) 219-1900
Andrew M. Cuomo, Esq.
12 East 33rd Street 
6th Floor
New York, NY 10016



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