Greenberg v. Veteran Brief for Defendants-Appellants

    In The
United States Court of Appeals

For the Second Circuit

In The Matter of the Application 
of M yles G reenberg and 
F rances M. M u ll ig a n,

Plaintiff-Appellees,

v.

A n t h o n y  F. V e t e r a n, Supervisor 
Su s a n T o lchin, Town Clerk

Defendants-Appellants.

On Appeal From the United States District Court 
for the Southern District of New York

BRIEF FOR DEFENDANTS-APPELLANTS

Pa u l  A gresta 
Town Attorney 
Town of Greenburgh 
P.O, Box 205
Elmsford, New York 10523 
(914) 9° 1546
Attorney Defendants-Appellants



Table of Contents

Page

Table of Authorities....................................  ii
Preliminary Statement...................................  2
Issue Presented for Review..............................  5
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

Argument.................................................  14
I - THE TOWN SUPERVISOR'S RELIANCE ON FEDERAL CIVIL

RIGHTS LAW CONFERRED REFUSAL CLAUSE REMOVAL 
JURISDICTION................................. ...... 15

II - THE EXISTENCE OF A PARALLEL STATE LAW DEFENSE
DID NOT DIVEST THE COURT OF JURISDICTION.........  17

Conclusion...............................................  2 3

-i-



Table of Authorities

Cases; Page

Arizona v. Manypennv, 451 U.S. 232 (1981).............. 21
Bridgeport Education Ass'n v. Zinner.
415 F. Supp. 715 (D. Conn. 1976).......................  16, 17
Burford v. Sun Oil Co. . 319 U.S. 315 (1943)............ 4
Cavanagh v. Brock, 577 F.Supp. 176 (E.D.N.C. 1983)....  19-20, 22
Examining Board of Engineers, Architects and Surveyors 
v. Flores de Otero. 426 U.S. 572 (1976)................  21
Georgia v. Rachel, 384 U.S. 780 (1966).................  13
Gomillion V. Lightfoot, 364 U.S. 339 (1960)............ 16
Greenwood v. Peacock, 384 U.S. 808 (1966).............. 15
Hawaii Housing Authority v. Midkiff,
467 U.S. 229 (1984)................... .................. 20-21
Johnson v. Kay, 860 F.2d 529 (2d Cir. 1988)............ 20
McRedmond v. Wilson. 533 F.2d 757 (2d Cir. 1976)......  21
People v. Galamison. 342 F.2d 255 (2d Cir.),
cert, denied, 380 U.S. 977 (1965)..,......... .........  13
People of the State of New York v.
11 Cornwell Co.. 695 F.2d 34 (1982), modified.
718 F . 2d 22 (2d Cir. 1983).............................  20
Railroad Comm'n of Texas v. Pullman Co.,
312 U.S. 496 (1941).....................................  3, 12
Siler v. Louisville & Nashville R.R. Co.
213 U.S. 175 (1909).....................................  20
White v. Wellington. 627 F.2d 582 (2d Cir. 1980)..... . 5, 14,

16-19, 22
Willingham v. Morgan, 395 U.S. 402 (1969)....... ...... 21

-ii-



Constitution: Page
U.S. Const, amend. XIV...,.............................   16

Statutes:
28 U.S.C. § 1441(b).....................................  3, 11, 13
28 U.S.C. § 1442................ ........................  21
28 U.S.C. § 1443 (2).....................................  passim
28 U.S.C. § 1447 (d)..................... ......... . 1, 13
42 U.S.C. § 1985(3).....................................  9
New York Village Law § 2-212............................ 8

Legislative Materials:
Cong. Globe, 39th Cong., 1st Sess. (1866)............... 16

-iii-



UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT
--------------------------------------------- x
In the Matter of the Application
of MYLES GREENBERG and FRANCES M. :
MULLIGAN,

Plaintiffs-Appellees, Docket No. 89-7476
-against-

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

Defendants-Appellants. ------------------------- x

BRIEF FOR DEFENDANTS-APPELLANTS

This appeal arises from a proceeding filed in the 
New York State Supreme Court, which appellants —  Anthony F. 
Veteran, the Supervisor of the Town of Greenburgh, N.Y., and 
Susan Tolchin, the Town Clerk -- removed to the Southern 
District of New York. The court below thereafter remanded 
the case to the state court. Unlike a typical remand order, 
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) M

1/ Appellant Tolchin is a nominal party. For simplicity, 
we refer to appellants as "the Town Supervisor."



2

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

explained, "is unmistakably a product of the "NIMBY 
Syndrome" . . . 'Not In My Back Yard.'" (A 99-100; emphasis 
in o r i g i n a l ) H e r e ,  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 proper­
ty 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.

2/ References to "A  " are to pages of the Joint Appendix.
The citation for the decision below is 710 F. Supp. 962 
(S.D.N.Y. 1989).



3

Two secessionists responded by filing this pro­
ceeding in the Westchester County Supreme Court to overturn 
the 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
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 Commission of Texas v. Pullman Co., 312 
U.S. 496 (1941).



4

court had instructed the parties to brief. ^  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 Constitu­
tion, even in the face of conflicting state law and community 
pressure. Heeding the lessons of that era, the Town Supervi­
sor 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 courthouse 
doors —  despite the congressional promise to keep them open 
in these circumstances.

The court below erred. It simply misunderstood the 
removal authorized by § 1443(2).

Appellees sued the Town Supervisor in state court 
for allegedly failing to follow the Village Law. He defended 
his refusal to act on the basis of federal law prohibiting 
race discrimination. That sufficed to meet the refusal 
clause requirements of § 1443(2).

The district court rejected jurisdiction nonethe­
less because the Town Supervisor also invoked as a defense a

4/ See Burford v. Sun Oil Co.. 319 U.S. 315 (1943).



5

parallel state provision prohibiting race discrimination. 
However, that ruling is contrary to White v. Wellington, 627 
F.2d 582 (2d Cir. 1980), where this Court held that the 
presence of an alternative non-federal defense did not defeat 
refusal clause removal jurisdiction. Accordingly, the order 
below should be reversed.

Issue Presented For Review 
Was the Town Supervisor entitled to remove the 

state court case against him to the district court under the 
refusal clause of 28 U.S.C. § 1443(2), where one ground for 
his alleged failure to follow state law was the paramount 
mandate of federal civil rights law?

The court below erroneously answered this question
"no."

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-



6

profit corporation that constructs housing for the homeless. 
The intent of the West HELP development is to provide safe, 
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 

circulated 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 present­
ed 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



10

deviate from a natural course solely to exclude individ­
ual 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 "[t]he 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 (appellees here, and referred to 
as "the Article 78 petitioners") then filed this suit in the

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



11

Westchester County Supreme Court pursuant to Article 78 of 
the New York Civil Practice Law and Rules in an effort to 
overturn the decision. (A 3, 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)̂  The Article 78 proceeding was assigned to Judge 
Goettel as a Jones-related case.

6/ in pertinent part, the statutes provide as follows:
r § 1441(b)1 Any civil action of which the district 
courts have original jurisdiciton 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.
(§ 1443 (2) 1 Any of the following civil

(Continued)



12

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 Commission of Texas v. Pullman Co.. 312 U.S. 496 
(1941). After a conference and written submissions, the 
court below issued its decision directing a remand. (A 96)

The court rejected removal jurisdiction under the 
"refusal clause" of § 1443(2), a civil rights removal provi­
sion. In the court's view, the Town Supervisor had failed to 
allege a colorable federal/state conflict because both the 
federal and New York state constitutions prohibit racial 
discrimination. (A 112-16) However, the federal/state 
conflict —  the one that the court below failed to see —  was 
between: (i) the state Village Law provisions that the

(Continued)
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:

*  * *  *

(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

Article 78 petitioners relied on; and (ii) the mandates of 
the federal constitution that the Town Supervisor invoked as 
grounds for his refusal to act. That conflict confers 
§ 1443(2) jurisdiction, even though the New York state 
constitution also prohibits race discrimination.

The district court also declined to accept removal 
under the federal question provisions of § 1441(b). Although 
the court agreed that federal question removal was appropri­
ate, it decided to abstain and, on that basis, remanded the 
case to state court. (A 121-28)

The district court's refusal to accept jurisdiction 
under § 1443(2) is appealable as of right. See 28 U.S.C.
§ 1447(d); Georgia v. Rachel. 384 U.S. 780, 787 n.7 (1966); 
People v. Galamison, 342 F.2d 255, 257 (2d Cir.) cert. 
denied, 380 U.S. 977 (1965). The state court has stayed 
further proceedings pending appellate review by this Court. 
Matter of Greenberg v. Veteran. Index No. 18286/88 (West Co. 
Sup. Ct. June 9, 1989) ̂

1/ The Town Supervisor has also filed a petition for a writ 
of mandamus to review the district court's decision with 
respect to removal under § 1441(b). In re Veteran. 
Docket No. 89-3028.



14

Argument
The district court misunderstood the thrust of the 

refusal clause of § 1443(2). That provision affords a 
federal forum to state or local officials who are sued for 
refusing to follow state law because to do so would be 
inconsistent with federal civil rights law. This is just 
such a case.

The Article 78 petitioners sued the Town Supervisor 
in state court for allegedly violating the New York Village 
Law. He defended, in part, on the ground that federal civil 
rights law prohibits recognition of the racially gerryman­
dered village that the secessionists seek to form. This 
claim and defense bring into play the refusal clause. 
Moreover, White v. Wellington, 627 F,2d 582 (2d Cir. 1980). 
holds that the existence of an alternative state law defense 
is inconsequential to removal under § 1443(2).

Accordingly, the district court incorrectly reject­
ed jurisdiction on the theory that the Town Supervisor also 
had a state constitutional basis for his refusal to act. The
order below should be reversed.



15

THE TOWN SUPERVISOR'S RELIANCE ON 
FEDERAL CIVIL RIGHTS LAW CONFERRED 
REFUSAL CLAUSE REMOVAL JURISDICTION

I

Section 1443(2) permits removal of any action:
For any act under color of authority derived from any 
law providing for equal rights, or for refusing to do 
any act on the ground that it would be inconsistent with 
such law.

The second part of this provision —  the "refusal clause" —  
was the basis for removal in this case.^

A relatively rarely used provision, § 1443(2) 
traces its antecedents back to an act passed right after the 
Civil War by the 39th Congress. In virtually the only 
legislative history of the clause, Representative Wilson 
said:

I will state that this amendment is intended to enable 
State officers, who shall refuse to enforce State laws 
discriminating in reference to [the rights protected in 
§ 1 of the 1866 Civil Rights Act] on account of race or 
color, to remove their cause to the United States courts 
when prosecuted for refusing to enforce those laws.

8/ The first part of the subsection —  the "color of
authority" clause —  applies only to "federal officers 
or agents and those authorized to act with or for them 
in affirmatively executing duties under any federal law 
providing for equal civil rights." Greenwood v. 
Peacock. 384 U.S. 808, 824 (1966). The Town Supervisor 
did not argue that he satisfied these requirements.



16

Cong. Globe, 39th Cong., 1st Sess., 1367 (1866), quoted in 
Bridgeport Education Ass'n v. Zinner. 415 F. Supp. 715, 718, 
(D. Conn. 1976) (Newman, J.). Both state and local officials 
may invoke the law. White v. Wellington, 627 F.2d 582,
585-86 (2d Cir. 1980); Bridgeport Education. 415 F.Supp. at 
721.

White and Bridgeport Education also establish that 
refusal clause jurisdiction is proper "when the removing 
defendants make a colorable claim that they are being sued 
for not acting 'pursuant to a state law which, though facial­
ly neutral, would produce or perpetuate a racially discrimi­
natory result as applied'." 627 F.2d at 586, quoting 415 
F.Supp. at 722.

This case presents a paradigmatic refusal clause 
removal. The Article 78 petitioners sued the Town Supervisor 
for rejecting the Mayfair Knollwood incorporation petition. 
Despite the New York Village Law's facial neutrality, the 
Town Supervisor found that approval of the petition would 
produce invidious racial discrimination. Thus, he rejected 
the incorporation petition, relying on federal constitutional 
protections. See U.S. Const, amend. XIV; Gomillion v. 
Lightfoot, 364 U.S. 339 (1960). The basis for the refusal, 
set forth in the Town Supervisor's decision and adopted in 
his removal petition (A 50, 81-83), is clear:



17

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

*  *  *

[I]t is my obligation as a public official to defend the 
constitution and to reject the petition on the grounds 
that its purpose is to deny homeless persons needed 
services, to exclude homeless persons, and to racially 
discriminate against homeless persons who are predomi­
nantly black. (A 53, 56)

Plainly, the Town Supervisor made "a colorable 
claim'' that his refusal to act was based on the ground that 
application of the Village Law would be inconsistent with 
federal civil rights protection. The White/Bridgeport 
Education requirement was met.

II
THE EXISTENCE OF A PARALLEL STATE LAW DEFENSE 

DID NOT DIVEST THE COURT OF JURISDICTION
The court below misanalyzed away the federal/state 

conflict. The court noted that White v. Wellington. 627 F.2d 
582, requires "a conflict between federal law and 'state 
law,» not a state law or statute. The corpus of pertinent 
'state law' . . . must necessarily include state constitu­
tional law . . . . "  (A 112; emphasis in original) The court 
then found (to no one's surprise) that the New York state 
constitution —  like its federal counterpart —  prohibits



18

race discrimination. And, since the Town Supervisor invoked 
both the federal and state constitutions as bases for his 
refusal to act, the court held that there was no federal/state 
conflict.

The district court missed the point. The relevant 
conflict for refusal clause purposes was between: (1) the
Article 78 petitioners' claim, in their petition, of a 
failure to follow the Village Law; and (2) the Town Supervi­
sor's defense, in his removal petition, that he did so on the 
basis of paramount federal civil rights law. No case holds 
that this type of federal/state conflict dissolves just 
because there also is a state defense to the plaintiff's 
claim. Indeed, White teaches just the opposite.

In White, plaintiffs sued local officials for 
allegedly violating the state civil service law. Defendants 
denied that they violated state law. But, if they did, they 
further alleged a defense based on federal civil rights law. 
Thus, defendants argued that their acts were "authorized both 
by state and federal law." 627 F.2d at 588-89 (Kaufman, J. 
concurring).

This Court held that such alternative responses —  

typical of an answer —  were proper. A removal petition, the 
majority held, like a pleading, may include "alternative, 
inconsistent claims and defenses. . . . "  Id. at 587. So 
long as federal civil rights law furnished a ground for the



refusal to act, it was immaterial that there were other 
grounds as well. Removal under the refusal clause was 
appropriate. Id. at 587.

Here, the Town Supervisor simply asserted alterna­
tive federal and state defenses. While White involved an 
alternative general denial —  and this case an alternative 
defense —  that is not a meaningful difference for § 1443(2) 
removal purposes.

The decision below also runs counter to Cavanagh v. 
Brock, 577 F.Supp. 176 (E.D.N.C. 1983) (three-judge court). 
There, the North Carolina assembly refused to follow a state 
constitutional apportionment provision and passed a conflict­
ing plan instead, relying on the supremacy of federal law. 
After suit was filed, defendants removed under § 1443(2). 
Moving for summary judgment, defendants invoked alternative 
federal and state law defenses. The three-judge court upheld 
removal and decided the case on state law grounds.

In Cavanagh, the presence of a state law defense 
plainly did not render removal improper under § 1443(2). The 
court noted that, at most, the state law defense required it



20

to consider whether abstention was appropriate. 577 F. Supp. 
at 180 n.4. The court, however, declined to abstain.^

Besides flying in the face of the case law, the 
district court's analysis further ignores an analogous 
principle which holds that, if federal question jurisdiction 
is properly invoked, the court nevertheless may refrain from 
resolving the federal question and decide the case solely on 
alternative state law grounds. This has long been the rule. 
See. e .g.. Siler v. Louisville & Nashville R.R. Co.. 213 U.S. 
175, 190-92 (1909); People v. 11 Cornwell Co.. 695 F.2d 34 
(1982), modified on other grounds. 718 F.2d 22 (2d Cir. 1983) 
(en banc). Cf. Johnson v. Kay, 860 F.2d 529 (2d Cir. 1988) 
(affirming injunction based on state law claim decided under 
court's pendent jurisdiction). The court below suggested no 
reason for applying a different jurisdictional principle to 
removal under the refusal clause —  one that would reject 
removal whenever a state law defense also is pleaded.

The court below ignored still another related 
principle, which establishes that "abstention is not required 
for interpretation of parallel state constitutional provi­
sions." Hawaii Housing Authority v. Midkiff, 467 U.S. 229,

9/ The court below labored to distinguish to Cavanagh.
(A 113-14) However, it ignored the fact that the case 
involved alternative defenses.



237 n. 4 (1984). See also Examining Board of Engineers, 
Architects and Surveyors v. Flores de Otero, 426 U.S. 572,
598 (1976); McRedmond v. Wilson, 533 F.2d 757, 763 (2d Cir. 
1976) . If, in the abstention context, a parallel state law 
is insufficient to divest the federal court of jurisdiction, 
it is hardly evident why § 1443(2) removal jurisdiction 
should —  as the court below held —  be governed by the very 
opposite rule.

Finally, the approach adopted by the court below 
would render the refusal clause of § 1443(2) a virtual dead 
letter. In this day and age, it would be rare indeed to find 
a situation where there was no plausible state law analogous, 
if not identical, to a federal law guaranteeing equal civil 
rights. If the congressional promise of a federal forum is 
to have any real meaning, the presence of an alternative 
state defense should not bar federal removal jurisdiction.

The Supreme Court has reminded that a similar 
statute authorizing federal officers to remove —  28 U.S.C.
§ 1442 —  should not be given "a narrow, grudging interpret­
ation. . . ." Willingham v. Morgan, 395 U.S. 402, 407
(1969). See also Arizona v. Manvpennv, 451 U.S. 232, 242 
(1981). So too with § 1443(2): the federal interest in
assuring a federal forum to state and local officials who 
uphold the supremacy of federal civil rights law counsels 
against the district court's cramped analysis.



22

In sum, White and Cavanaah correctly hold that the 
existence of an alternative state defense is no barrier to 
removal under § 1443(2). The district court's decision is 
wrong. The order appealed from should be reversed insofar as 
it rejected § 1443(2) removal jurisdiction.



23

Conclusion
The district court's decision is laden with refer­

ences to "federalism" as the touchstone for its determination 
not to hear this case. But the first principles of federal­
ism are adherence to the Constitution and to the commands of 
the Congress. Here, Congress directed that a federal forum 
be available to state officials who enforce the supremacy of 
federal civil rights law in the face of conflicting state 
law, despite the community pressure or local unpopularity 
that they may be called upon to endure. The federal courts 
therefore act in the finest tradition of federalism when they 
keep the promise of removal jurisdiction that Congress made.

The order below should be reversed to the extent 
appealed from.

Dated: Elmsford, New York
June 28, 1989

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