Greenberg v. Veteran Brief of Petitioners-Appellees

    n«WH'



TABLE OF CONTENTS

PAGE

Preliminary Statement............................  4
Statement of the Issues Presented for Review..... 2
Statement of the Case............................ 2
Statement of the Facts........................... 42
POINT

SINCE THE JURISDICTIONAL TOUCHSTONE FOR 
REMOVAL OF THIS ACTION WAS LACKING, GIVEN THE CONCEDED ABSENCE OF A COLORABLE CONFLICT 
BETWEEN STATE AND FEDERAL LAW, THE ACTION WAS 
PROPERLY REMANDED TO STATE COURT..............  13

CONCLUSION.......................................  24



TABLE OF AUTHORITIES
PAGE

Cases:

Bridgeport Education Association v. Zinner,
415 F.Supp. 715, (D.C. Conn. 1976)...............  14 , 22

Buffalo Teachers Federation v.Board of Education of the City of Buffalo,477 F.Supp. 691 (W.D.N.Y., 1979 ).................  23
Cavanaugh v. Brock,577 F.Supp. 176 (E.D.N.C., 1983).................  19 , 23
Dorsey v. Stuyvesant Town Corp.,
299 N.Y. 512 (1949) cert. denied,
339 U.S. 981 ( 1950)...............................  10, 19

In re Rose,
61 Misc.2d 377, 305 N.Y.S.2d 
721, (Sup. Ct. 1969) aff'd. mem.,
36 A .D.2d 1025, 322 N.Y.S. 2d 1000
(2d Dept. 1969 )..................................  9

Jones v. Deutsch,88 Civ. 7738 (GLG)...............................  7, 12, 16
Quirk v. State of New York Office 
of Court Administration,
549 F.Supp. 1236 (S.D.N.Y., 1982 )................  23

Seaman v. Fedourich,
16 N.Y.2d 94, 262 N.Y.S.2d 444, ( 1965)...........  10, 19

White v. Wellington,627 F. 2d 582 (2d Cir. 1980)......................  7, 8, 9, 1014, 18, 19, 
21, 22, 23

Willingham v. Morgan,
395 U.S. 402 , 407 ( 1969 ).........................  23

ii



PAGE

Constitutional and Statutory Provisions:

New York Constitution, Article 1, §11.............  10
Fourteenth Amendment..............................  10, 20
42 U.S.C. §1985( 3)................................  7
28 U.S.C. §1442 ...................................  23
28 U.S.C. §1443( 2 )................................  1, 2, 6, 7,13, 14, 18, 

19, 22, 23
New York State Village Law §2-202 .................. 3
New York State Village Law §2-204 .................. 3
New York State Village Law §2-206 ( 1)............... 3, 4 , 13, 17
New York State Village Law §2-206(3).............. 3, 5
New York State Village Law §2-210(4) (c)............ 15
New York State Village Law §2-212.................. 15
New York State Village Law §2-224 .................. 15
New York State Civil Practice 
Law and Rules, Article 78........................  5

iii



UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT___________________________________ X
In the Matter of the Application of 
MYLES GREENBERG and FRANCES M. 
MULLIGAN,

Petitioners-Appellees, 
-against-

ANTHONY F. VETERAN, Supervisor 
and SUSAN TOLCHIN, Town Clerk,

Respondents-Appellants. ---------------------------------- X

BRIEF OF PETITIONERS-APPELLEES

Preliminary Statement
This is an appeal from so much of an April 17, 1989, order 

of the United States District Court for the Southern District of 
New York (GOETTEL, J.) as remanded this action to the Supreme 
Court of the State of New York for Westchester County on the 
ground that its removal to Federal Court pursuant to 28 U.S.C. 
§1443(2) was jurisdictionally defective for lack of a colorable 
conflict between state and federal law. The lower Court's 
decision is reported at 710 F.Supp. 962 (S.D.N.Y. 1989).

1



Statement of the Issues Presented for Review

Whether a municipal official may remove a state court action 
to federal court pursuant to 28 U .S.C.§ 1443(2 ) , in accordance 
with the "refusal clause" of that civil rights removal statute, 
where admittedly there exists no conflict between state and 
federal law?

2



Statement of the Case

On September 14, 1988, a petition, signed by in excess of 
five hundred persons, was filed in accordance with New York State 
Village Law §2-202 with the Supervisor of the Town of Greenburgh, 
New York, proposing that an election be held to determine whether 
certain territory situated within the Town of Greenburgh should 
be incorporated as a new village to be called "Mayfair Knollwood” 
[JA 35, para. 6, Verified Petition]. Although the Supervisor 
publicly and repeatedly stated that he would take whatever steps 
were necessary to insure that the incorporation petition was 
rejected (id. at p. 36, para. 9), he thereafter scheduled a 
public hearing on that petition for November 1, 1988, as required 
by Village Law §2-204 (JA 36, paras. 8, 10, Verified Petition).

Twenty-three persons made unsworn statements at the hearing 
in opposition to the incorporation petition (id. at p. 36, para. 
11). Not a single person objected to the petition with respect to 
the statutory grounds, contained in Village Law §2-206(1), upon 
which the legal sufficiency of a petition to incorporate a 
village can lawfully be challenged (Ici. at pp. 36-7, para. 12).
No witnesses were sworn (id. at p. 37, para. 13), not a single 
exhibit was received and/or marked (id. at para. 14), not a 
single affidavit was submitted (_id. at para. 15), no testimony 
was given and no such testimony was thereafter either reduced to 
writing or subscribed in accordance with Village Law §2-206(3).

3



In addition, absolutely no evidence was adduced at the 
hearing with respect to any claim that the boundary of the 
proposed village excludes and/or is intended to exclude 
minorities (id. at p. 38, para. 22). No evidence whatsoever was 
adduced with respect to any claim that the proposed village, if 
incorporated, would exclude by reason of its zoning authority low 
income housing for the homeless (JA 42, para. 31).

After each opponent of incorporation had spoken the 
Supervisor announced, over immediate objection, that he was 
closing the public portion of the hearing but intended to accept 
"written comments" regarding the incorporation petition until 
November 21, 1988 (id. at p. 39, paras. 23-4)--even though the 
Village Law mandated that objections and evidence with respect to 
them be heard and received by the Supervisor at the public 
session. Village Law §2-206(1).

By decision rendered December 1, 1988 (JA 50-6), the 
Supervisor determined that the incorporation petition was legally 
insufficient on six grounds. Four of those grounds [with respect 
to none of which any evidence was adduced at the public hearing 
(JA 40-4, paras. 27-8, 32, 33-4, 35)] comprised statutory 
objections identified in Village Law §2-206(1).

The remaining two grounds [with respect to which no evidence 
was adduced at the public hearing (JA 41-2, paras. 29, 31)] were 
not predicated on the Village Law at all. Instead they were both

4



expressly bottomed upon claimed "rights guaranteed by the federal 
and state constitutions" (JA 53, 55)(emphasis added).

Thus the Supervisor purported to determine that the proposed 
new village's boundary had been gerrymandered so as to exclude 
minorities (JA 51). As a result he concluded that the 
gerrymandering "violates the rights guaranteed to all citizens by 
the Constitution of the United States of America and the 
Constitution of the State of New York. Ibid (emphasis added).

He also purported to determined that incorporation of the 
proposed village was intended to block low income housing for the 
homeless (JA 55). Accordingly he concluded the petition to be 
defective under both the "federal and state constitutions". Ibid 
(emphasis added).

The Supervisor's rejection of the petition was then 
subjected to judicial review in state court in an Article 78 
proceeding (NYCPLR Article 78) brought by Myles Greenberg and 
Frances Mulligan, both of whom had signed the incorporation 
petition (JA 36, para. 7). The Petitioners challenged the 
Supervisor's determination since: absolutely no evidence had been 
adduced at the hearing with respect to any ground upon which he 
had ruled and hence all objectors to the petition necessarily had 
failed to meet the burden of proof expressly imposed upon them by 
Village Law 2-206(3) (JA 45, 46-7 pars. 42-3, 47-50); rejection
of the incorporation petition had in part been realized on the

5



basis of grounds (the gerrymander and housing issues) not 
statutorily cognizable in the ministerial proceedings 
contemplated by the Village Law (JA 45-6, paras. 44-6); and 
rejection on the gerrymander and housing grounds was improper 
since both were predicated upon First Amendment protected 
opinions, motives and intentions of the incorporation's 
proponents with respect to which no evidence was adduced at the 
public hearing (JA 47-8, paras. 52-4).

No answer was interposed in the Article 78 proceeding. 
Rather the Supervisor (and Town Clerk who was also named as a 
Respondent) filed a petition in accordance with, inter alia, 28 
U.S.C. §1443(2), which provides in substance that a defendant 
prosecuted in state court for "refusing to do any act on the 
ground that it would be inconsistent with" federal civil rights 
laws, may remove that case to the federal courts. In support of 
their removal petition they claimed that the incorporation 
petition had been rejected by the Supervisor:

...on the basis both that is [sic.] was not 
legally sufficient according to several grounds 
enumerated in Village Law Section 2-206, and 
was not legally sufficient in that the proposed 
village would result in racial discrimination and 
the violation of civil rights under the Constitution 
and laws of the United States of America and the
Constitution of the State of New York.

★ ★ ★

6



...the proposed village petition was rejected in 
part on the basis of Federal and State Constitutional 
and statutory provisions providing for equal rights

(JA 81, para. 9; JA 82, emphasis added).

The removal petition was assigned to Judge Goettel as a 
related case since, on the date of the public hearing on the 
incorporation petition, a federal action had been filed 
challenging the proposed incorporation as violative of 42 
U.S.C. §1985(3). Jones v. Deutsch, 88 Civ. 7738 (GLG)(JA 123-155, 
complaint).

By so-ordered decision dated April 17, 1989, Judge Goettel 
sua sponte remanded the Article 78 proceeding to state court. 
Principally relying upon White v. Wellington, 627 F.2d 582 (2d 
Cir. 1980) with respect to the civil rights removal claim 
predicated upon 28 U.S.C. §1443(2), he ruled that removal was not 
permissible under that statute since there was neither a 
colorable conflict between state and federal law nor did the 
Supervisor believe in good faith such a conflict to exist at the 
time he filed his removal petition:

Recognizing, we think, that the statute [28 U.S.C. 
1443(2)], if left open-ended, could lead to the 
"federalization" of standard state cases involving 
challenges to official state or municipal action,

7



an important limitation (consistent with the existing 
legislative history) has been read into the law's 
meaning. To state a "colorable claim" under the 
statute, the removal petition must contain a good 
faith allegation that there exists a conflict 
between the state law in issue and a federal law 
protecting equal rights. As Chief Judge Brieant put 
it, the removal petition must allege "a colorable 
claim of inconsistent state/federal requirements." 
...The basis of the conflict requirement seems self- 
evident: without a colorable federal-state conflict, 
the need to remove to federal court to ensure the 
proper vindication of superior federal mandates is 
not manifested. When federal and state interests are 
compatible, the state court is poised to assure that 
the defendant's parallel justification for action 
under state law is given proper consideration. Cf. 
Wellington, 627 F.2d at 590 (Kaufman, J., concurring) 
(State officials will seek "extraordinary" option of 
removal under the refusal clause and forego the 
familiar confines of a state forum "because the 
federal issue they seek to litigate is so substantial).

*  *  *

Guided by these holdings, we find that a 
colorable conflict between federal and state law is 
neither asserted in the instant [removal] petition nor 
can such a conflict in good faith be found to exist.

8



As outlined supra, Town Supervisor Veteran denied 
the incorporation on six enumerated grounds. Only 
grounds (2) and (3) implicate federal concerns relating 
to equal rights... Grounds (2) and (3), however, each 
conclude that even though the Village Law "does not 
specifically address itself to the 'intent' of the 
petitioners [for incorporation], I firmly believe that 
the rights granted by the federal and state constitu­
tions transcend the procedural technicalities set
forth in the Village Law."

*  *  *

Wellington repeatedly references and requires a 
conflict between federal and "state law", not a state 
law or statute. The corpus of pertinent "state law 
under Wellington, it seems to us, must necessarily 
include state constitutional law, for it is a funda­
mental maxim of any constitutional society, as New 
York is, that constitutional mandates govern and 
delimit legislative and regulatory enactments of the 
majority. Thus, at least one New York court has 
noted that incorporation petitions, even if in 
compliance with the ministerial requirements of the 
Village Law, will not be sustained if their end 
is that of advancing racial discrimination. In re Rose 
61 Misc.2d 377, 305 N.Y.S.2d 721, 723 (Sup. Ct. 1969), 
aff'd mem., 36 A.D.2d 1025, 322 N.Y.S.2d 1000 (2d 
Dept. 1969). Although state law in such a case may be

9



found by resort to the State Constitution, as opposed 
to the Village Law, it is a "state law" nonetheless 
which forbids the invidious result.

As is made plain by the December 1 Decision 
[of the Supervisor], Town Supervisor Veteran relied 
on both the Federal and State Constitutions in 
rejecting the petition. No conflict between the 
pertinent federal and state constitutional provisions 
was perceived by Supervisor Veteran; he acted at 
the command of both. See especially Wellington,
627 F.2d at 587 (central inquiry is whether official 
subjectively believed an actual conflict between 
federal and state law existed); id. at 590 (Kaufman,
J., concurring)(same). Nor is any such conflict to be 
found by reference to existing state law; federal and 
New York constitutional law governing equal protection 
are in harmony. See Seaman v. Fedourich, 16 N.Y.2d 94, 
262 N.Y.S .2d 44, 45 (1965)(noting New York's equal 
protection clause, embodied in N.Y. Const, art. 1,
§11, "is as broad in its coverage as that of the 
Fourteenth Amendment"); Dorsey v . Stuyvesant—Town Corp , 
299 N.Y. 512, 530 (1949)(holding protection afforded 
by New York's equal protection clause is coextensive 
with that granted by Fourteenth Amendment), cert.
denied, 339 U.S. 981 (1950).

*  *  *

10



Consequently, we find that there is no colorable 
conflict between federal and state law in this case, 
and that removal, if justified here, must be found for 
reasons other than those provided under the refusal 
clause.

(JA 108-16).

11



Statement of the Facts

The only relevant fact which is material to disposition of 
this appeal is the incontrovertible circumstance that, at the 
time the Town Supervisor refused to accept the incorporation 
petition, he did so in part because he believed that were he to 
do otherwise he would be acting inconsistently with both the New 
York State and United States' constitutions (JA 50, 51, 53, 55).

Irrelevant, but heavily relied upon by Appellants (see e .g. 
Appellants' Brief, pp. 6-7), are a series of factual assertions
contained in the complaint which was filed in Jones v._Deutsch,
88 Civ. 7738 (GLG)(JA 132-55, complaint), the related action 
commenced on the date of the public hearing on the incorporation 
petition. That action was, by so-ordered decision of June 28, 
1989, dismissed by Judge Goettel who noted that the suit at least 
in part appeared "collusive" because of the apparent identity of 
interests shared by Supervisor Veteran (a defendant in that 
action) and all of the Plaintiffs. Jones v. Deutsch, supra, slip 
op. of June 28, 1989, p. 8, ftn. 8.

12



POINT

SINCE THE JURISDICTIONAL TOUCHSTONE 
FOR REMOVAL OF THIS ACTION WAS LACKING,GIVEN THE CONCEDED ABSENCE OF A COLORABLE 
CONFLICT BETWEEN STATE AND FEDERAL LAW,

THE ACTION WAS PROPERLY REMANDED TO STATE COURT

On December 1, 1988, Supervisor Veteran, expressly acting in 
reliance upon Village Law §2-206(1), rejected the petition to 
incorporate the Village of Mayfair Knollwood on four statutory 
grounds (JA 50-6). Even though that rejection alone was 
sufficient to prevent the conduct of an election under the state 
statutory scheme, absent judicial nullification of that 
determination, the Supervisor also rejected the petition on two 
civil rights related grounds (JA 50-1, 53, 55) neither of which 
is expressly contemplated by the Village Law. Village Law 
§2-206(1). With respect to the latter grounds for his decision, 
the Supervisor acted in express reliance upon the New York State 
Constitution as well as that of the United States. Ibid.

When the Supervisor's rejection of the incorporation 
petition then became the subject of a state court challenge, 
Veteran removed that action to federal court pursuant to 28 
U.S.C. §1443(2). In doing so he expressly admitted (JA 3) that he 
had rejected the petition "on the basis both that is f sic.] was 
not legally sufficient according to several grounds enumerated in 
Village Law Section 2-206, and was not legally sufficient in that 
the proposed village would result in racial discrimination and

13



the violation of civil rights under the Constitution and laws of 
the United States of America and the Constitution of the State of 
New York." That admission is fatal.

It is well settled that, for purposes of removing an action 
from state to federal court pursuant to Section 1443(2), the 
"jurisdictional touchstone is a colorable conflict between state 
and federal law leading to the removing defendant's refusal to 
follow state law because of a good faith belief that to do so 
would violate federal law". White v. Wellington, 627 F.2d 582, 
586-7, 592 (2d Cir. 1980). Moreover it is equally well settled 
that the removing defendant must also make a colorable claim 
that, were he to comply with state law, such compliance "would 
produce or perpetuate a racially discriminatory result". White v. 
Wellington, supra at 586; Bridgeport Education Association v.
Zinner, 415 F.Supp. 715, 722 (D.C. Conn. 1976)(Newman, J.). Since 
Veteran concededly does not meet either requirement, removal was 
improper.

Indisputably the Supervisor affirmatively rejected the 
incorporation petition on the basis of statutory grounds 
enumerated in the Village Law. Having done so, Veteran cannot 
seriously claim that he engaged in a "refusal o follow state 
law" for purposes of Section 1443(2).

Indeed because Supervisor Veteran rejected the petition on 
state statutory grounds, in addition to state/federal

14



constitutional grounds, it is readily apparent that he also 
cannot seriously argue that a racially discriminatory result 
would have been either produced or perpetuated had he not in part 
relied upon the constitutional predicate for his determination. 
For if Veteran had ignored the supposed civil rights basis for 
his decision, no particular degree of insight is required to 
appreciate that his conduct would not produce or perpetuate 
anything. The incorporation petition would, by reason of his 
alternative ruling on Village Law grounds, have been no less 
"rejected" than it was because he relied on statutory and 
non-statutory predicates (see Appellants' Brief at 10, ftn. 5, 
where it is conceded that the Supervisor determined that the 
incorporation "breached the Village Law in several respects and 
rejected it on those grounds as well").

In fact had the Supervisor found in favor of the proponents 
of the incorporation petition, that event alone would not have 
produced or perpetuated race discrimination for two reasons. 
First approval of the petition would have been subject to 
judicial challenge by opponents of incorporation (Village Law 
§2-210(4)(c). Had the petition survived, it would then merely 
have become the subject of an election to determine whether 
incorporation should occur. Village Law §2-212. Had the 
incorporation proposition been approved by the voters, any such 
election would then have been subject to judicial challenge as 
well. Village Law §2-224. In short, whatever action Veteran took 
with respect to the incorporation petition, it alone could

15



neither produce nor perpetuate anything except a series of 
contingencies all or none of which might come to pass

For this very reason, in the context of Jones v. Deutsch, 89 
Civ. 7738 (GLG), Judge Goettel held that there existed no case 
and controversy with respect to Jones' claim that discrimination 
would result were the incorporation petition to proceed to a 
vote:

...before certification of village incorporation 
will be issued by the State an incorporation 
petition must be certified by the town supervisor, 
survive challenge via an Article 78 proceeding, 
be approved by a majority of the would-be voting 
residents of the proposed village, and survive 
court challenge to the electoral process utilized.
The instant petition has not even cleared the first 
of these hurdles.

Jones v. Deutsch, supra, slip op. of June 28, 1989, p. 11.

In any event, absolutely no evidence was adduced at the 
public hearing on the incorporation petition supporting the 
Supervisor's stated concerns that the village's boundary was 
gerrymandered to exclude minorities or that the village's 
proponents intended to utilize the new municipality to bar 
housing for the homeless (JA 38, paras. 21-2). The post-hearing

16



material relied upon improperly [Village Law §2-206(1)] by the 
Supervisor hardly alters this conclusion.

Although his claim of gerrymandering was principally based 
upon a supposed map of the proposed new village prepared by the 
Town's Engineer [JA 41, para 29(b); 155; see also Appellants' 
Brief at 6-7 (claim that thirty-sided map proves racial intent of 
proponents of incorporation petition], Veteran inconsistently 
admitted that because of defects in the description of the 
proposed boundary the actual boundary could not even be 
ascertained [JA 50 ("The boundary description submitted with the 
petition did not describe the boundaries of the proposed village 
with 'common certainty' thereby making it impossible to locate 
the boundaries with the precision that is necessary.")]. So much 
for the thirty-sided map.

Veteran's claim that the new village was intended to be 
incorporated for the "sole purpose" of blocking low income 
housing was supported by absolutely nothing (JA 42, para. 31). 
Perhaps for that reason the Supervisor was simply unable to 
satisfactorily explain to Judge Goettel how formation of a new 
village would realize that imagined objective (JA 101, Opinion, 
ftn. 2: "Just how incorporation of the proposed village would 
obstruct construction of housing for the homeless... is not 
entirely clear to us.").

17



Even if this series of jurisdictional deficiencies could be 
made to go away, the Supervisor could hardly take comfort. Since 
Veteran concededly based the constitutional aspect of his 
decision on both the New York State and United States' 
constitutions, it is readily apparent that in good faith he did 
not believe there to be inconsistent "state/federal" requirements 
--the jurisdictional sine qua non for removal pursuant to Section 
1443(2 ) .

The series of arguments advanced in Appellants' brief in 
support of reversal is meritless. For the Court's convenience 
each is treated seriatim.

Arguing that the existence of a non-federal defense does not 
defeat jurisdiction to remove a case pursuant to Section 1443(2) 
in light of White v. Wellington, supra (Appellants' Brief, pp. 
4-5, 14), Appellants contend that this action was properly 
removed even though New York State's Constitution admittedly 
(Appellants' Brief, pp. 12-13, 17-17) prohibits racial 
discrimination and that that Constitution comprised one of the 
Supervisor's claimed bases for supposedly refusing to comply with 
the Village Law. The argument is without merit.

In Wellinton, supra, the removing defendants contended in 
the alternative that they had not violated state law, but that if 
they did so they were required to commit that violation because 
of obligations imposed upon them by inconsistent provisions of

13



federal law. Id. at 587. That claim of course manifestly embodied 
a colorable conflict between state and federal law, thereby 
satisfying the jurisdictional prerequisite for removal under the 
"refusal to act" clause of Section 1443(2). Wellington, supra at 
586-7.

By way of contrast Veteran does not assert as a "non-federal 
defense" a general denial with respect to the claim that he 
violated state law. On the contrary, he claims to have 
disregarded his obligations under the Village Law in deference to 
the New York State Constitution which in relevant part he 
correctly [Seaman v. Fedourich, 16 N.Y.2d 94, 262 N.Y.S.2d 444, 
450 (1965); Dorsey v. Stuyvesant Town Corp., 299 N.Y. 512, 530 
(1949)] admits is identical to its federal counterpart. Thus 
unlike the removing defendants in Wellington, Veteran contends 
that he refused to act out of obedience to New York State law, 
albeit as derived from the State Constitution, with respect to 
which federal law does not conflict. Manifestly absent in the 
instant case is the jurisdictional touchstone of such a conflict 
as required by Wellington, supra.

Utterly specious is Appellants' contention (Appellants' 
Brief, pp. 19-20) that Judge Goettel's decision to remand is 
inconsistent with Cavanaugh v. Brock, 577 F.Supp. 176 (E.D.N.C., 
1983). Cavanaugh is completely distinguishable as the lower Court 
noted:

19



Removal in that case was permitted under the 
refusal clause because the removing defendants
argued that the relevant provisions of the North 
Carolina Constitution, which were alleged to be 
in conflict with the Fourteenth Amendment, either 
had been rescinded or, if in effect, could not be 
complied with due to the contrary dictates of the 
Federal Constitution... Here, the Equal Protection 
Clause will embrace whatever discrimination allegedly 
would have occurred...and Seaman and Dorsey make 
plain that the corollary state constitutional 
provision is at least as broad as its federal 
counterpart. Thus, if Town Supervisor Veteran was 
required by the Equal Protection Clause of the 
Fourteenth Amendment to act as he did, he 
similarly would be required to so act by the 
equal protection clause of the New York 
Constitution since the latter is to be read 
in para materia with its federal relation.

(JA 113-14).

No less frivolous is Appellants' suggestion (Brief at 20) 
that Judge Goettel ignored the principle that "if federal 
question jurisdiction is properly invoked, the court nevertheless 
may refrain from resolving the federal question and decide the 
case solely on alternate state grounds" (emphasis added).

20



Jurisdiction here was not predicated upon a federal question. 
Moreover, jurisdiction here was not properly invoked, due to the 
conceded absence of inconsistent state/federal requirements. 
Lacking this jurisdictional touchstone (Wellington, supra at 
586-7), the principle relied upon by Appellants is simply 
irrelevant.

Disingenuous is Appellants' argument (Brief at 20) that 
Judge Goettel suggested no rationale for remanding a case where 
state and federal law are consistent. In fact the lower Court 
clearly did:

The basis of the conflict requirement seems 
self-evident: without a colorable federal-state 
conflict, the need to remove to federal court to 
ensure the proper vindication of superior federal 
mandates is not manifested. When federal and state 
interests are compatible, the state court is poised 
to assure that the defendant's parallel justifica­
tion for action under state law is given proper 
consideration. C_f. Wellington, 627 F. 2d at 590 
(Kaufman, J., concurring) (state officials will 
seek extraordinary" option of removal under the 
refusal clause and forego the familiar confines 
of a state forum "because the federal issue they 
seek to litigate is so substantial").

21



Indeed, Judge Meskill, dissenting in Wellington,
characterized the colorable conflict requirement 
as the "jurisdictional touchstone" under the 
refusal clause. Wellington, 627 F.2d at 592. The 
Wellington majority concurred with that assessment 
. ..Id. at 586-7 .

(JA 108-9) .

Unpersuasive in the extreme is Appellants' argument (Brief 
at 21) that Judge Goettel's interpretation of the refusal clause 
renders it a "virtual dead letter" making its invocation "rare 
indeed" because there will frequently be state laws analogous to 
federal laws guaranteeing equal civil rights. As a matter of 
history, invocation of the refusal clause indisputably has always 
been an "extreme rarity". Wellinqton, supra, at 590 (Kaufman, J., 
concurring opinion); id. at 585 (Brieant, J., majority opinion); 
id. at 591 (Meskill, J., dissent); Bridgeport Education 
Association v. Zinner, 415 F.Supp. 715, 716 (D.C.Conn.,
1976)(Newman, J.).

Where state consitutional provisions afford the same 
protections as their federal counterparts the rationale for 
removal under Section 1443(2) is lacking and the jurisdictional 
touchstone is missing. However in those circumstances where there 
is no analogous state law guaranteeing equal civil rights, where 
a state constitution is itself in conflict with federal law, or

22



where compliance with state law would put a defendant in conflict 
with an outstanding federal court order, removal pursuant to 
Section 1443(2) will remain a viable remedy. See e .q. Cavanaugh 
v. Brock, supra (refusal to act on the basis of inconsistent 
state constitution and federal law); Quirk v . State of New York 
Office of Court Administration, 549 F.Supp. 1236 (S.D.N.Y.,
1982)(refusal to act predicated on inconsistent state law and 
federal court order); Buffalo Teachers Federation v. Board of 
Education of the City of Buffalo, 477 F.Supp. 691 (W.D.N.Y.,
1979)(same).

Misleading at best is Appellants' suggestion that because 28 
U.S.C. §1442 is not to be given a "narrow" interpretation 
fWillingham v. Morgan, 395 U.S. 402, 407 (1969)], the 
jurisdictional requirement for invoking Section 1443(2) should be 
liberally interpreted so as to do away with the prerequisite of 
a colorable state/federal conflict. As this Court observed in 
Wellington, supra at 585-6 (ftn. 4) federal defendants "have a 
right of removal greater in scope under 28 U.S.C. §1442" than 
that afforded by Section 1443(2).

23



CONCLUSION

The order appealed from should be affirmed.

Dated: White Plains, N.Y.
July 26, 1989 /

LOVETT/& GOl̂ LD, ESQS .
Bv: ̂ / j n ̂^Jonathan Lovett

-^/member of the firm
AbttSrneys for Appellees 
180 E. Post Road White Plains, N.Y. 10601 
914-428-8401

24