Greenberg v. Veteran Brief of Petitioners-Appellees
Public Court Documents
July 26, 1989

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Brief Collection, LDF Court Filings. Greenberg v. Veteran Brief of Petitioners-Appellees, 1989. c1f76558-b49a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/a7d98079-3ccc-412c-b0bc-4e952c07d942/greenberg-v-veteran-brief-of-petitioners-appellees. Accessed May 07, 2025.
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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