Traynham v. County School Board of Halifax County, Virginia Brief for Appellees

    89
In The

United States Court of Appeals
For the Second Circuit

In re A nthony F. V eteran 
and Susan T olchin,

Petitioners.

PETITION FOR A WRIT OF MANDAMUS 
TO THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF NEW YORK

Paul A gresta 
Town Attorney 
Town of Greenburgh 
P.O, Box 205
Elmsford, New York 10523 
(914) 993-1546 
Attorney for Petitioners



Table of Contents

Page

Preliminary Statement...................................... 1
Statement of the Case...................................... 5

The West Help Shelter.........    5
The NIMBY Response............    6
The Proposed Village................    7
The Town Supervisor's Decision.......................  9
The Remand Order.....................................  12

Issue Presented and Relief Sought........................  13
Reasons Why the Writ Should Issue......................... 13
I - MANDAMUS IS THE APPROPRIATE MEANS TO REVIEW THECOURT'S FAILURE TO ASSUME FEDERAL QUESTION

JURISDICTION.........................................  14
II - THE COURT BELOW INCORRECTLY INVOKED THE BURFORD

DOCTRINE.............................................  16
Conclusion 25



Table of Authorities

Cases: Page

Alliance of American Insurers v. Cuomo,
854 F. 2d 591 (2d Cir. 1988)......................18, 22, 23
B.A.M. Brokerage Corp. v. State of New York,
700 F. Supp 182 (S.D.N.Y. 1988).......................... 20
Burford v. Sun Oil Co. , 319 U.S. 315 (1943)..........passim
CBS Inc, v. State Human Rights Appeal Board.
54 N.Y.2d 921 (1981).................................. 24
Colorado River Water Conservation District v.
United States. 424 U.S. 800 (1976)................... 16, 17
Corcoran v. Ardra Ins. Co.,
842 F. 2d 31 (2d Cir. 1988)............................ 15
Heritage Farms. Inc, v. Soleburv Township,
671 F.2d 743 (3d Cir.),cert, denied, 456 U.S. 990 (1982)..................... 23
Kontokosta v . Village of Greenport,
1988 U.S. Dist. LEXIS 13584 (S.D.N.Y. 1988)........... 20
Lake Carriers1 Ass'n v. MacMullan,
406 U.S. 498 (1972)............................... . 16
Law Enforcement Ins. Co. v. Corcoran,
807 F.2d 38 (2d Cir. 1986), cert.denied, 481 U.S. 1017 (1987) ........................  18
Levy v. Lewis, 635 F.2d 960 (2d Cir. 1980)............ 21
LILCO v. Cuomo,666 F. Supp. 370 (N.D.N.Y. 1987)...................... 18
Mallard v. United States District Court for the 
Southern District of Iowa.57 U.S.L.W. 4487 (U.S. May 1, 1989)................... 14
McRedmond v. Wilson,533 F. 2d 757 (2d Cir. 1976)........................... 23
Moses H. Cone Memorial Hospital v.
Mercury Construction Corp.,
460 U.S. 1 (1983)....................................  16

i



Cases: Page

Railroad Conmt'n of Texas v. Pullman Co. ,
312 U.S. 496 (1941)............................3, 5, 12, 15
Roche v. Evaporated Milk Ass'n,
319 U.S. 21 (1943)..................................... 15
Schlaaenhauf v. Holder. 379 U.S. 104 (1964) ........... 16
Zablocki v. Redhail.
434 U.S. 374 (1978).................................... 23

Statutes and Rules:

Rule 21, Fed. R. App. P................................ 1
28 U.S.C. § 1441(b).............................. 3, 11, 12
28 U.S.C. § 1443 (2)............................... 3 , 4, 11
28 U.S.C. § 1447 (d) . . ................................. 4, 13
28 U.S.C. § 1651......................................  1
42 U.S.C. § 1985 (3).....      9
New York Village Law

Art. 2...........................................  19
§ 2-206..........................................  19
§ 2-208..........................................  19
§ 2-212..........................................  8
§ 2-232 ..........................................  21
§ 2-234..........................................  21

ii



UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT--------------------- .----- ------- x
In re ANTHONY F. VETERAN and :
SUSAN TOLCHIN, :

Petitioners. :
---------------------------------- x

Docket No.

PETITION FOR A WRIT OF MANDAMUS

Pursuant to 28 U.S.C. § 1651 and Rule 21, Fed. R. 
App. P., petitioners Anthony F. Veteran, the Supervisor of 
the Town of Greenburgh, N.Y., and Susan Tolchin, the Town 
Clerk, submit this petition for a writ of mandamus directing 
the district court to assume jurisdiction of the matter 
entitled In re Greenberg et ano. v. Veteran et al.. Index 
No. 18286/88 (West. Co. Sup. Ct.), which the court below 
erroneously remanded after removal from the state court. ^

Preliminary Statement
"[T]his case," the court below (Goettel, J.) 

explained, "is unmistakably a product of the 'NIMBY Syndrome'

1/ Town Clerk Tolchin is a nominal party in this matter. For simplicity's sake, we refer to both petitioners as 
"the Town Supervisor."



2

. . . 'Not In My Back Yard.'" (A 99-100; emphasis in origi­
nal)-^ Here, the NIMBY syndrome is a reaction to a proposed 
shelter for homeless families with children —  overwhelmingly 
families from racial minorities. Community resistance —  
fueled by racism —  includes an effort to assert control over 
the proposed shelter by incorporating a new village. As a 
leading proponent of the new village has said: "You're
taking a piece of a ghetto and dumping it somewhere else to 
get another ghetto started. . . .  We'll go ahead with 
secession and take a nice piece of taxable property with us." 
(A 142)

Before the secession could proceed, however, state 
law required the Town Supervisor to consider the village 
incorporation petition. After doing so, he concluded that 
"[i]n the entire 30 years during which I have held elective 
office I have never seen such a blatant and calculated 
attempt to discriminate" on the basis of race. (A 51) For 
this and other reasons, the Town Supervisor rejected the 
attempt to secede.

Two secessionists responded by filing this proceed­
ing in the Westchester County Supreme Court to overturn the

2y References to "A ___" are to pages of Petitioner's
Appendix in Support of Petition for a Writ of Mandamus.



3

Town Supervisor's decision. Among other claims, the two 
secessionists allege that the New York Village Law does not 
permit the Town Supervisor to reject an incorporation effort 
on grounds of invidious discrimination. Thus, they argue, 
the Town Supervisor supposedly failed to follow the state 
statutory scheme when he relied on unconstitutional race 
discrimination as a basis for his decision.

The Town Supervisor removed the suit to the South­
ern District of New York. He relied on the "refusal clause" 
of 28 U.S.C. § 1443(2), a removal provision applicable to 
civil rights actions. He also invoked federal question 
removal jurisdiction under 28 U.S.C. § 1441(b), based on the 
secessionists' claim that he had violated their First Amend­
ment rights.

The secessionists did not seek to remand. The
district court, however, raised removal and Pullman absten-
. 3 /tion issues sua sponte. After the parties' submissions, 

the court below rejected removal under § 1443(2). Moreover, 
while the court upheld federal question removal jurisdiction 
under § 1441(b), it nonetheless abstained under the Burford 
doctrine -- a different abstention doctrine than the one the

3/ See Railroad Comm1n of Texas v. Pullman Co.. 312 U.S. 
496 (1941).



4

court had instructed the parties to brief.-7 Having decided 
to abstain, the court remanded the case to state court.

There is sad irony in the ruling of the court 
below. A generation ago, the federal courts intervened often 
in the struggle for equality to remind state and local 
officials of their duty to uphold the United States Consti­
tution, even in the face of conflicting state law and com­
munity pressure. Heeding the lessons of that era, the Town 
Supervisor upheld the supremacy of federal law and, when sued 
for doing so, came to a federal courthouse for confirmation 
of his action. The court below, however, closed the court­
house doors —  despite the congressional promise to keep them 
open in these circumstances.

The Town Supervisor has appealed the district 
court's rejection of § 1443(2) refusal clause jurisdiction. 
Greenberg v. Veteran, Docket No. 89-7476.̂  By this peti­
tion, the Town Supervisor further seeks a writ of mandamus 
because the court below also misapplied the Burford

4 /

4/ See Burford v. Sun Oil Co., 319 U.S. 315 (1943).
5/ Unlike a typical remand order, this part of the order 

below is appealable under an exception applicable to 
removal of civil rights actions. See 28 U.S.C. §§ 1443 
and 1447(d).



5

abstention doctrine in declining to exercise its federal 
question removal jurisdiction.

The Burford doctrine is intended to avoid undue 
federal court interference with specialized state regulatory 
systems. This case, however, does not involve any such 
system. It concerns only a local effort to form a new 
village. The absence of any basis for Burford abstention is 
highlighted by the district court's decision to reach for 
this doctrine after first directing briefing on the Pullman 
doctrine.

Accordingly, a writ of mandamus should issue to 
remedy this clear abuse of discretion.

Statement of the Case 
The West HELP Shelter

Westchester County is teeming with homeless fami­
lies, many of whom are quartered at great public expense in 
often squalid motel rooms. Typically, a single room houses a 
parent and a number of children. The vast majority of the 
County's homeless are members of racial minorities.
(A 133-34, 139, 141)

In January 1988, the Town of Greenburgh proposed to 
build housing for 108 homeless families with children on land 
within the Town owned by Westchester County. The proposed 
developer is West H.E.L.P., Inc. ("West HELP"), a not-for- 
profit corporation that constructs housing for the homeless. 
The intent of the West HELP development is to provide safe,



6

convenient and humane emergency (or "transitional") shelter 
for homeless families with children. It is part of a joint 
County/West HELP proposal to establish a number of such 
facilities. (A 139-40)

The NIMBY Response
Announcement of the West HELP shelter galvanized 

neighborhood resistance. In February 1988, an organization 
called Coalition of United Peoples, Inc. ("COUP") was formed 
to stop the project. Around the same time, COUP proponents 
publicly announced their intent to stop the West HELP shelter 
by incorporating a new village —  later named "Mayfair 
Knollwood" —  pursuant to the New York Village Law. (A 141- 
42)

COUP proponents seek to use the new governmental
unit of Mayfair Knollwood to block the West HELP development.
As COUP president, Laurence Deutsch, has said:

We'll go ahead with secession and take a nice piece of 
taxable property with us.

(A 142) The "secession" plan is racially motivated. As
Deutsch stated in opposing the West HELP development:

You're taking a piece of a ghetto and dumping it some­
where else to get another ghetto started.

(A 142)
Thereafter, Deutsch and others prepared and circu­

lated a petition to incorporate Mayfair Knollwood. (A 142) 
The secessionist scheme was underway.



7

The Proposed Village
The map of Mayfair Knollwood, reproduced below, is 

ugly indeed. The boundary of the proposed village is irregu­
lar and ungeometric; it has more than 30 sides. The proposed 
village would exclude all the black and multi-racial housing 
surrounding it. The tortured shape of the village can be 
explained only by the purpose of its creators —  to exclude 
racial minorities. (A 51-52, 143, 155)



8

Within the proposed village is the West HELP 
development site —  so that the newly formed government will 
be able to seize control and try to halt construction. The 
proposed village also includes a disproportionate amount of 
the Town's tax base and recreational facilities. Moreover, 
the boundary extends outward to include all the undeveloped 
land that borders the excluded surrounding minority neighbor­
hoods —  thus assuring the power to create a buffer zone 
against possible encroachment from excluded communities 
through control of land use. (A 52-53, 143)

In September 1988, after hundreds of residents had 
signed the incorporation petition, the secessionists pre­
sented it to the Town Supervisor. Under state law, the Town 
Supervisor then had the responsibility of calling a hearing, 
receiving objections and rendering a decision on whether the 
incorporation procedure could move ahead. A favorable 
decision would clear the way for a vote by the Mayfair 
Knollwood residents on whether to secede. (A 144-45; N.Y. 
Village L. § 2-212 (McKinney 1973)) Because of the proposed 
village's composition —  resulting, of course, from its 
gerrymandered borders —  the outcome of such a vote was a 
foregone conclusion. Thus, COUP president Deutsch trium­
phantly announced that "[t]he incorporation is a fact. . . . 
The town may delay us, but it won't stop us." (A 144)



9

On November 1, 1988, an alliance of black residents 
of the area, homeless persons with families, the White 
Plains/Greenburgh branch of the National Association for the 
Advancement of Colored People, Inc. and the National Coali­
tion for the Homeless filed suit in the Southern District of 
New York against several proponents of the secession, naming 
the Town Supervisor as a defendant as well. Jones v. Deutsch. 
88 Civ. 7738 (GLG). (A 132) That action alleges civil 
rights conspiracy claims arising under 42 U.S.C. § 1985(3), 
and also seeks a declaratory judgment affirming the Town 
Supervisor's right and obligation to reject the Mayfair 
Knollwood incorporation petition. Upon its filing, the case 
was assigned to Judge Goettel.

The Town Supervisor's Decision
On the same day as the filing of the Jones action,

the Town Supervisor convened the hearing required by the New
York Village Law. On December 6, 1988, he filed his decision
rejecting the incorporation petition on several grounds.
(A 50) One ground for rejection was race discrimination.

The Town Supervisor found that the Mayfair Knollwood
boundaries "were gerrymandered in a manner to exclude black
persons from the proposed village." (A 51) In his own words:

In the entire 30 years during which I have held elective 
office I have never seen such a blatant and calculated 
attempt to discriminate. The boundaries repeatedly 
deviate from a natural course solely to exclude



10

individual properties where blacks live. Within the 
boundaries of the proposed village there is not a single unit of multi-family housing, housing which historically 
has been more accessible to minority groups because of 
its lower cost.

(A 51-52) Recognizing that "[t]he procedures for the forma­
tion of a new village cannot be used to accomplish an unlaw­
ful end," the Town Supervisor concluded that his obligation 
was "to defend the constitution and to reject the petition 
. . . ." (A 53)

The Town Supervisor also rejected the petition 
because "the new village was proposed for the sole purpose of 
preventing the construction of transitional housing for 
homeless families near the neighborhood of Mayfair Knollwood." 
(A 53) Again, he concluded that his duty to defend the 
constitution dictated that he reject the petition because 
"its purpose is to deny homeless persons needed services, to 
exclude homeless persons, and to racially discriminate 
against homeless persons who are predominantly black."
(A 56)^

Two secessionists (respondents here, but referred 
to as the "Article 78 petitioners") then filed this suit in 
the Westchester County Supreme Court pursuant to Article 78

6/ The Town Supervisor also found that the petition 
breached the Village Law in several respects and 
rejected it on those grounds as well. (A 50-51, 56)



11

of the New York Civil Practice Law and Rules in an effort to 
overturn the decision. (A3, 34) Among the claims pleaded 
are that: (1) the Town Supervisor failed to follow the
Village Law when he rejected the incorporation petition on 
the ground of racial discrimination; and (2) in finding that 
the new village proponents sought to discriminate, the Town 
Supervisor committed a First Amendment violation. (A 45-48) 
The Article 78 petitioners also attacked the procedure used 
at the incorporation hearing and in connection with the Town 
Supervisor's decision.

The Town Supervisor, joined by other Article 78 
proceeding respondents (including the Jones plaintiffs), 
removed the suit to the Southern District of New York, 
pursuant to 28 U.S.C. §§ 1441(b) and 1443(2). (A 79, 82-83)-^

7/ in pertinent part, these statutes provide as follows:
r § 1441(b)1 Any civil action of which the district courts have original jurisdiction founded on a 
claim or right arising under the Constitution, 
treaties or laws of the United States shall be 
removable without regard to the citizenship or 
residence of the parties.
r § 1443X11] Any of the following civil 
actions . . . 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:

*  *  *

(Continued)



12

The Article 78 proceeding was assigned to Judge Goettel as a 
Jones-related case.

The Remand Order
The Article 78 petitioners did not seek a remand to 

state court. The court below, however, sua sponte directed 
the parties to address whether removal was appropriate and 
whether the court should abstain under the doctrine of 
Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 4S6 (1941). 
After a conference and written submissions, the court below 
issued its decision directing a remand. (A 96)

The district court agreed that federal question 
removal was appropriate under § 1441(b). But, it decided to 
abstain based on the Burford doctrine —  despite its instruc­
tion that the parties brief the propriety of Pullman absten­
tion. (A 121-28) Thus, the court erroneously embraced 
Burford without giving the Town Supervisor an opportunity to 
present his views on its application —  and despite the clear 
absence of any state regulatory system of the type envisioned * 2

(Continued)
(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.



13

by Burford. In any event, having decided to abstain, the 
court below remanded the case to the state court.

The Town Supervisor seeks review by mandamus of 
this part of the order below.-7

Issue Presented and Relief Sought 
This petition presents one basic question for

review:
Does the Burford abstention doctrine preclude the 

district court from hearing this proceeding, brought pursuant 
to state law, to review the Town Supervisor's refusal to 
approve for a vote a petition to incorporate a new village?

The court below erroneously answered this question 
"yes." Thus, this Court should issue a writ of mandamus 
directing the district court to assume jurisdiction of this 
Article 78 proceeding.

Reasons Whv the Writ Should Issue 
The district court's decision to abstain on Burford 

grounds is a clear abuse of discretion. Burford abstention

8/ The court also rejected jurisdiction under the refusal
clause of § 1443(2), the civil rights removal provision. 
The Town Supervisor has appealed from that part of the 
order below. (A 129) See 28 U.S.C. § 1447(d).



14

is intended to avoid federal interference in detailed state 
regulatory systems, where special expertise is needed and 
where substantial state policies make federal interference 
undesirable. This simply is not a Burford case.

There is no state regulatory system here. The 
Village Law merely details a procedure for local incorpora­
tion. Moreover, there is no substantial state policy impli­
cated by incorporation. At bottom, incorporation raises 
matters of local concern. Finally, unlike Burford, there was 
no possible interference with any other state review proceed­
ing because this removed case is the only state vehicle for 
reviewing official action in the incorporation process.

In abstaining, the court below simply refused to 
accept the removal jurisdiction conferred on it by Congress 
—  a refusal that just cannot stand under the controlling 
authorities. Hence, a writ of mandamus should issue direct­
ing the district court to accept jurisdiction.

I
MANDAMUS IS THE APPROPRIATE MEANS TO REVIEW THE 

COURT'S FAILURE TO ASSUME FEDERAL QUESTION JURISDICTION
A writ of mandamus is proper "to confine an inferi­

or court to a lawful exercise of its prescribed jurisdiction 
or to compel it to exercise its authority when it is its duty 
to do so." Mallard v. United States District Court for the



15

Southern District of Iowa, 57 U.S.L.W. 4487, 4491 (U.S.
May 1, 1989), emoting Roche v. Evaporated Milk Ass'n, 319 
U.S. 21, 26 (1943). This Court has held that mandamus review 
is available where the district court has removal jurisdiction, 
but declines to exercise it and instead remands the case on 
abstention grounds. Corcoran v. Ardra Ins. Co., 842 F.2d 31 
(2d Cir. 1988). Although the Corcoran court declined to 
issue the writ, here, relief is compelled.

With all respect, the district court seemed to 
search for a ground to avoid its duty to adjudicate. Most 
typically, state or local officials are the ones who urge 
federal court abstention. In contrast, by filing a removal 
petition, the Town Supervisor affirmatively tried to present 
his case to the district court. Upon removal, the Article 78 
petitioners did not raise an issue of abstention. The court 
below itself did so by soliciting argument on application of 
Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 315 (1943)
—  not Burford. After we had briefed that doctrine —  and, 
we suggest, had demonstrated that there was no basis for 
Pullman abstention —  the court, without further notice, 
abstained on a different theory altogether.

Thus, the district court abstained on grounds not 
urged by any party, without giving the Town Supervisor an 
opportunity to oppose Burford abstention. And, as we demon­
strate below, Burford is manifestly inapplicable.



16

By abdicating its duty to hear this case, the court 
below committed a clear abuse of discretion. Issuance of a 
writ of mandamus is the necessary remedy. See Schlaqenhauf 
v. Holder. 379 U.S. 104, 110 (1964).

II
THE COURT BELOW INCORRECTLY 
INVOKED THE BURFORD DOCTRINE

The federal courts have a "virtually unflagging 
obligation . . .  to exercise the jurisdiction given them." 
Colorado River Water Conservation Dist, v. United States. 424 
U.S. 800, 817 (1976). Accordingly, abstention —  the excep­
tion, not the rule -—  is limited to "special circumstances."
Lake Carriers' Ass'n v. MacMullan. 406 U.S. 498, 509 (1972).
See also Moses H. Cone Memorial Hospital v. Mercury Construc­
tion Coro.. 460 U.S. 1, 16 (1983) (in resolving issues of 
abstention, the balance is "heavily weighted in favor of the 
exercise of jurisdiction").

Burford v. Sun Oil Co.. 319 U.S. 315 (1943), 
represents one of those exceptions. But this action does not 
implicate the Burford doctrine —  far from it, as a review of 
the case discloses. The animating concern in Burford —  inter­
ference with a complex state regulatory system —  simply is not 
present here.

Burford arose from a Texas statutory scheme that author­
ized the Railroad Commission, a state agency, to administer a



17

complex system of conserving and controlling oil and gas drilling 
in the state. The Commission issued drilling permits to private 
operators, applied drilling spacing standards to promote conserva­
tion, and participated in a production control program. As the 
Supreme Court explained:

The standards applied by the Commission in a given case 
necessarily affect the entire state conservation sys­
tem. . . . [T]he overall plan of regulation, as well as 
each of its case by case manifestations, is of vital 
interest to the general public which must be assured 
that the speculative interests of individual tract 
owners will be put aside when necessary to prevent the 
irretrievable loss of oil in other parts of the field.

319 U.S. at 324.
State law also provided for review of Commission 

orders in a single trial level court, thus enabling "the 
state courts, like the Railroad Commission itself, to acquire 
a specialized knowledge which is useful in shaping the policy 
of regulation of the ever-changing demands in this field."
Id. at 327. Finally, there was a pattern of federal court 
disruption of the state regulatory scheme. Id. at 327-30.

In this factual setting, the Supreme Court held 
that federal court abstention was appropriate. As the Court 
later explained, Burford applies where federal review "would 
be disruptive of state efforts to establish a coherent policy 
with respect to a matter of substantial public concern."
Colorado River. 424 U.S. at 814.



18

This Court has repeatedly emphasized the limited 
scope of the Burford doctrine. For instance, in Law Enforce­
ment Ins. Co. v. Corcoran, 807 F.2d 38, 43 (2d Cir. 1986), 
cert, denied, 481 U.S. 1017 (1987), this Court noted:

The Supreme Court [in Burford! held that the case was 
one for abstention because: (1) the order under attack 
was part of a unified regulatory scheme on a complex 
subject matter of special state interest, a scheme in 
which the state administrative agency and the state 
courts cooperated closely to safeguard the values of 
uniformity, expertise, and due process; (2) the state 
had expressed its interest in unified decision making by 
creating a system on the state level to avoid multiple 
inconsistent adjudications, a system that would be 
disrupted by the exercise of jurisdiction by the federal 
courts; and (3) the issues .sought to be adjudicated in 
federal court were largely ones of state law.

Put another way, Burford is intended for cases "relating to
complex state regulations where the federal court decision
may disrupt important state policies," and where federal
resolution "will have a significant impact on important state
policies and for which the state has provided a comprehensive
regulatory system with channels for review by state courts or
agencies." Alliance of American Insurers v. Cuomo, 854 F.2d
591, 599 (2d Cir. 1988). See also Corcoran v. Ardra Ins.
Co., 842 F.2d 31, 36 (2d Cir. 1988) ("Burford is designed to
avoid federal court interference with specialized state
regulatory schemes"); LILCO v. Cuomo, 666 F. Supp. 370,
398-99 (N.D.N.Y. 1987).

The court below recognized the general principles 
governing Burford abstention, but misapplied them. No



19

specialized state regulatory scheme exists here. No state
agency or official oversees or administers the Village Law —
because there is nothing to regulate. No unique system for
judicial review exists to assure uniformity of decision or
promotion of an important state policy. The New York Village
Law merely sets forth a procedure for forming a new village.
N.Y. Village Law art. 2 (McKinney 1973 and Supp. 1989).

Moreover, while the Town Supervisor (a local
official) plays a role in the incorporation process, his
statutorily defined authority is limited to convening and
presiding over a hearing, and rendering a decision on the
incorporation petition. Village Law §§ 2-206, 2-208 (McKinney
1973 and Supp. 1989). This is not the sort of detailed
administration necessary to trigger Burford considerations.
Indeed, the Article 78 petitioners sued the Town Supervisor
in part on a theory that his role is ministerial. (Article
78 Petition, A 45-48) Hence, they cannot be heard to argue
that he has extensive regulatory authority under state law,

. . 9 /which the federal courts must refrain from disrupting.-7

9J We do not, by this discussion, mean to suggest that theTown Supervisor has no authority beyond that expressly 
granted in the Village Law. We contend, at the very 
least, that the Town Supervisor has the overarching duty 
to uphold the constitution. That, of course, is one of 
the very issues in this case. The salient point is(Continued)



20

The Burford doctrine, moreover, presupposes the 
existence of an alternative state forum that is better suited 
to resolve the controversy. In Burford, that state forum was 
a specific court, before which all review had to be brought. 
Here, by contrast, there not only is no special review court, 
there also is no actual or potential state proceeding capable 
of being disrupted by federal court adjudication. Unlike 
Burford, this Article 78 proceeding is not a collateral 
litigation brought to avoid the review mechanisms created by 
state law. Rather, this case is the state means to secure 
judicial review of the Town Supervisor's action. To apply 
Burford in these circumstances would simply enable the 
district court to avoid its duty to adjudicate, despite 
proper invocation of § 1441(b) removal jurisdiction. Cf. 
B.A.M. Brokerage Coro, v. State of New York, 700 F. Supp. 182 
(S.D.N.Y. 1988) (Burford inapplicable to action challenging 
disciplinary proceedings by Insurance Superintendent); 
Kontokosta v. Village of Greenport, 1988 U.S. Dist. LEXIS 
13584 (S.D.N.Y. 1988) (Burford inapplicable to challenge to 
village's refusal to supply water and sewer services).

(Continued)that, unlike the Burford situation, the statutory scheme 
here does not confer administrative authority because 
there is no regulatory role to be assumed.



21

Although the court below analogized the Village Law 
to the regulatory system in Levy v. Lewis. 635 F.2d 960 
(2d Cir. 1980), that analysis was incorrect. (See A 124-25)
Lew arose from efforts to liquidate an insurer. New York 
law committed insurer liquidation to a state official, the 
Insurance Superintendent. As this Court also recognized, 
liquidation required special expertise, and the process would 
suffer if federal interference were permitted. Id. at 
963-64.

The facts here are not comparable. Village incor­
poration is largely a local matter. While the state may have 
an interest in establishing a uniform incorporation proce­
dure, whether or not a new village is formed generally is of 
no state concern. For that very reason, the Village Law does 
not even provide for the involvement of state officials in 
the process, except at its conclusion where a state officer 
confers legal status on the new village, Village Law §§ 2-232, 
2-234; similarly, as noted above, the Town Supervisor has no 
significant regulatory authority.

Thus, no state or local official plays any role 
comparable to that of the Insurance Superintendent in the 
liquidation proceedings central to Levy. Moreover, unlike 
liquidation, local incorporation is not an area requiring 
regulation of recurring patterns of activity, and certainly 
no special expertise is either necessary or developed.



22

Accordingly, Levy is inapplicable. On the other 
hand, another insurance regulatory case —  Alliance of 
American Insurers, supra. 854 F.2d 591 —  cited (but not 
discussed) by the district court, counsels strongly against 
Burford abstention. Alliance of American Insurers arose from 
amendments to the New York Insurance Law, which barred the 
Insurance Superintendent from declaring the State's two major 
medical malpractice carriers insolvent until 1990, and 
imposed a cap on premium surcharges. Plaintiffs consisted of 
non-medical malpractice carriers whom New York law required 
to participate in a back-up fund to protect against insurer 
insolvency. Plaintiffs challenged the constitutionality of 
the two statutory amendments. They alleged, in substance, 
that the State's two malpractice insurers were currently 
insolvent, as a result of which plaintiffs eventually would 
be assessed to recoup the malpractice insurers' deficits.
The district court dismissed, relying in part on the Burford 
doctrine.

This Court reversed, finding Burford abstention 
unwarranted. The action did not "involve the federal courts 
in disrupting any ongoing state judicial or administrative 
proceedings." 854 F.2d at 600. The Court emphasized that a 
possible effect on state policy was alone insufficient to 
require abstention:



23

While the resolution of this case could have a broad 
impact on important state policy, ''there is, of course, 
no doctrine requiring abstention merely because resolu­
tion of a federal question may result in the overturning 
of a state policy."

Id. at 601, quoting Zablocki v. Redhail. 434 U.S. 374, 380 
n.5 (1978). Accordingly, the Court rejected Burford absten­
tion as "neither necessary nor proper." Id. at 601.

The considerations in Alliance of American Insur­
ance —  the State's interest in the statewide availability of 
medical malpractice coverage and insurer financial responsi­
bility —  were far more significant than the interest in the 
local incorporation. And the insurance regulatory framework 
was far more pervasive than the Village Law procedural 
provisions. This Court nevertheless rejected Burford absten­
tion when the Insurance Superintendent sought to invoke the 
doctrine. It necessarily follows that Burford does not apply 
to the claims here —  where no state or local official urges 
abstention at all.

To be sure, issues arising under state law may 
need to be resolved in this case. But as Alliance of Ameri­
can Insurers. 854 F.2d at 601, makes clear, Burford absten­
tion does not turn on a possible impact on state law or 
policy. See also McRedmond v. Wilson. 533 F.2d 757, 764 (2d 
Cir. 1976) . Rather, the doctrine seeks to avoid federal 
interference with a state regulatory system, and there is no 
such system here. Cf. Heritage Farms. Inc, v. Soleburv



24

Township, 671 F.2d 743 (3d Cir.), cert, denied. 456 U.S. 990 
(1982) (local land use laws did not constitute the type of 
regulatory system required for Burford abstention)

In sum, the court below abstained on the basis of 
an inapplicable doctrine, which neither side urged, and which 
the Town Supervisor did not even know was under considera­
tion. A writ of mandamus is proper to review this clear 
abuse of discretion.

10/ Moreover, the state questions presented in this proceed­
ing go largely to the procedure used at the incorpora­
tion hearing. Although New York state courts may not 
have considered the issues raised in the precise context 
of incorporation, there is a developed body of state law 
concerning procedure in nonadjudicatory forums. See. 
e.q.. CBS Inc, v. State Human Rights Appeal Board. 54 
N.Y.2d 921, 923 (1981) ("[d]ue process does not requireall the accoutrements of an adversarial trial at every 
stage of an administrative proceeding").



25

Conclusion
For the foregoing reasons, this Court should issue 

a writ of mandamus directing the district court to hear and 
decide this Article 78 proceeding.

Dated: Elmsford, New York
June 14, 1989

PAUL AGRESTA, ESQ.
Town Attorney- 
Town of Greenburgh 
P.0. Box 205
Elmsford, New York 10525 
(914) 993-1546
Attorney for Petitioners 
Anthony F. Veteran and 
Susan Tolchin