Greenberg v. Veteran Reply Brief for Defendants-Appellants

    89-7476
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 ull 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

REPLY BRIEF FOR DEFENDANTS-APPELLANTS

Pa u l  A gresta 
Town Attorney 
Town of Greenburgh 
P.O. Box 205
Elmsford, New York 10523 
(914) 993-1546
Attorney for Defendants-Appellants



Table of Contents

Table of Authorities.................. .............  (ii)
Preliminary Statement...............................  1
Argument

I - THE PRESENCE OF ALTERNATIVE 
STATE LAW DEFENSES DOES
NOT BAR REMOVAL..............    2

Conclusion........................................... 6

(i)



Table of Authorities

Cases: Page

Bridgeport Education Ass'n v. Zinner,
415 F. Supp. 715 (D. Conn. 1976).......................  4
Cavanagh v. Brock. 577 F. Supp. 176 (E.D.N.C. 1983).... 3, 4

White v. Wellington. 627 F.2d 582 (2d Cir. 1980)......  passim

Constitution:

U.S. Const, amend. XIV..................................  4

Statutes:
28 U.S.C. § 1331........................................  4, 5
28 U.S.C. § 1443 (2).....................................  passim

(ii)



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

REPLY BRIEF FOR DEFENDANTS-APPELLANTS 
Preliminary Statement

Plaintiffs-appellees —  who did not seek a remand 

to begin with in the court below —  labor to give the trap­
pings of affirmability to the district court's ruling. But 

the suit does not fit. Their effort only highlights the 
absence of any authority to sustain the order below. No 
other court has ever rejected jurisdiction under the refusal 
clause of 28 U.S.C. § 1443(2) simply because the case included 
both federal and state law defenses. Indeed, the decision 
below is contrary to the law that this Court has established.

Accordingly, the order appealed from should be

reversed.



2

Argument

I
THE PRESENCE OF ALTERNATIVE STATE LAW 

DEFENSES DOES NOT BAR REMOVAL

In White v. Wellington. 627 F.2d 582, 589-90 (2d 

Cir. 1980), Judge Kaufman, concurring, wrote that "[t]he 
element of conflict between state and federal law which is a 

prerequisite for [§ 1443(2)] removal is supplied . . . b y  
[plaintiffs'] averments taken in conjunction with those of 
[defendants]." Here, plaintiffs sued the Town Supervisor for 
refusing to approve the Mayfair Knoilwood incorporation 
petition for a vote. They alleged in part that, under New 
York state law, the Town Supervisor's conduct "was ultra 

vires. illegal, premised upon insufficient evidence and 

otherwise unlawful." (A 4 6 ) The Town Supervisor, on the 

other hand, defended his refusal to act on the basis of the 
federal prohibition against racial discrimination, as well as 

its New York state counterpart. (A 52-53, 55-56, 81-83) 
Plaintiffs themselves admit that the Town Supervisor rejected 
the incorporation petition "on two civil rights related

1/ References to "A__" are to pages in the Joint Appendix.
"PI. Br." and "Def. Br." refer to the Brief for 
Petitioners-Appellees and the Brief for Defendants- 
Appellants, respectively.



3

grounds . . . neither of which is expressly contemplated by 
the Village Law." (PI. Br. 13)

The federal/state conflict —  framed by plaintiffs' 
state law claim and the Town Supervisor's federal civil 
rights law defense —  is undeniable. The issue presented is 
whether the presence of an alternative state law defense 
precludes removal under the refusal clause.

Plaintiffs offer no prior authority -- not a single 
case ■—  holding that an alternative state law defense viti­

ates refusal clause jurisdiction. Quite the contrary, in 
White. this Court held that a "petition to remove is analo­
gous to a pleading" and, thus, "alternative, inconsistent 
claims and defenses may be alleged. . . . "  627 F.2d at 587.
That is the situation here.

Like White, this case may require adjudication of 
issues other than those arising from the Town Supervisor's 
federal civil rights defense. However, White establishes 
that the presence of non-federal issues does not preclude 
jurisdiction under the refusal clause. Section 1443(2) 
removal simply does not "require renunciation of alternative 
defenses to plaintiff's claims." White. 627 F.2d at 589 
(Kaufman J., concurring). See also Cavanaah v. Brock. 577 
F.Supp. 176 (E.D.N.C. 1983) (three judge court).

The district court, and now plaintiffs, are surely 

correct that both the federal and state constitutions



4

prohibit race discrimination. (PI. Br. 13-14, 18) However, 
that hardly eliminates the conflict between: (1) the State
Village Law provisions that plaintiffs claim the Town Super­
visor refused to follow; and (2) the Fourteenth Amendment 
civil rights principle that the Town Supervisor invoked to 
defend his refusal. The parallel state prohibition only 
means that plaintiffs' claims face two legal obstacles, 
instead of just one. Similarly, the presence of alternative 
state statutory grounds to sustain the Town Supervisor's 
refusal to act no more eliminates the federal/state conflict 
than does the presence of the state constitutional provision. 
(See PI. Br. 14-15)^

As in White and Cavanagh, the situation that this 
case presents —  an action in federal court that requires 

adjudicating both federal and non-federal issues —  is 

unremarkable. For example, it is settled that a state law 

claim joined with a federal question may properly be heard in 
federal court under 28 U.S.C. § 1331. (See Def. Br. 20) If
— ■ as this Court said in White -- a removal petition "is 
analogous to a pleading," refusal clause jurisdiction may

2y Moreover, plaintiffs' argument of the merits of their
claims against the Town Supervisor (PI. Br. 15-18) is 
simply irrelevant to this appeal. See Bridgeport 
Education Ass'n v. Zinner. 415 F.Supp. 715, 723-24 (D. 
Conn. 1976) .



5

fairly be likened to federal question jurisdiction under 

§ 1331. Plaintiffs suggest no authority, nor any policy 
argument, for a jurisdictional principle under § 1443(2) that 

is the very opposite of the one established under § 1331. 
Thus, just as an alternative state law claim in a complaint 
does not defeat § 1331 jurisdiction, so too, an alternative 
state law defense in a removal petition does not defeat 
§ 1443(2) removal under the refusal clause.

In sum, the Town Supervisor met the requirements 
for refusal clause jurisdiction. The court below erred in 

holding otherwise.



6

Conclusion

Plaintiffs make no serious attempt to distinguish 
White. and they furnish no authority at all to support the 

decision below. In remanding the case, the district court 

incorrectly declined to exercise its jurisdiction under 
§ 1443 (2) .

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

Dated: Elmsford, New York
August 10, 1989

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