Opposition Brief — Glanton v. Davis
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No. 97-0028 ® ie $1 1997
In The , GLERK
Supreme Court of the United States
October Term, 1996
Sf
RICHARD GLANTON, Individually and as a Trustee
of The Barnes Foundation; NIARA SUDARKASA,
Individually and as a Trustee of The Barnes
Foundation; SHIRLEY A. JACKSON, Individually
and as a Trustee of The Barnes Foundation,
Petitioners,
Vs.
KENNETH E. DAVIS; JAMES S. ETTELSON; ALAN C.
KESSLER; FRANK LUTZ; JOSEPH M. MANKO; ORA R.
PIERCE; JAMES J. PRENDERGAST; BRIAN D.
ROSENTHAL; DAVID A. SONENSHEIN; HOWARD L.
WEST; GLORIA P. WOLEK; PHYLLIS L. ZEMBLE,
Respondents.
=
Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Third Circuit
Sd
BRIEF IN OPPOSITION
a
Paut R. Rosen
Counsel of Record
Larry R. Woop, Jr.
SpecTtoR GADON & Rosen, P.C
1635 Market Street, 7th Floor
Philadelphia, PA 19103 -
(215) 241-8800
Counsel for Respondents
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
COUNTERSTATEMENT OF THE
QUESTIONS PRESENTED
1. Whether the Third Circuit Court of Appeals properly
affirmed an Order of the District Court remanding a
purely state law based complaint for defamation, libel
and slander, based upon a conclusion that removing
defendants (Petitioners herein) did not establish the nar-
row and well-defined requirements for removal pursuant
to 28 U.S.C. § 1443 under this Court’s holdings in Georgia
v. Rachel, 384 U.S. 780 (1966) and City of Greenwood v.
Peacock, 384 U.S. 808 (1966) (decided the same day), and
in Johnson v. Mississippi, 421 U.S. 213 (1975)?
2. Whether the Ku Klux Klan Act, 42 U.S.C. § 1985(3),
trumps state court defamation actions against African-
Americans, and otherwise creates federal removal juris-
diction under 28 U.S.C. § 1443 for every state law based
tort action brought against a minority defendant?
3. Whether, pursuant to 28 U.S.C. § 1447(d), the Third
Circuit Court of Appeals properly dismissed an appeal
from an Order of the District Court remanding a purely
state law based complaint for defamation, libel and
slander in which the District Court concluded that pur-
suant to 28 U.S.C. § 1441 no federal subject matter juris-
diction existed over the purely state court complaint as
set forth in this Court’s decision in Franchise Tax Board of
the State of Cal. v. Construction Laborers Vacation Trust for S.
Cal., 463 U.S. 1 (1983)?
ii
TABLE OF CONTENTS
Page
COUNTERSTATEMENT OF THE QUESTIONS PRE-
SEE TEED 5.55 04k divs ow nsw abc nen meee i
COUNTER CITATION TO OFFICIAL AND UNOFFI-
CIAL OPINIONS AND ORDERS ENTERED
Ee ee ee rs eK 1
COUNTER STATEMENT OF THE CASE AND THE
POEs os oss ncencvenduns ence ceeeene leleeeee 1
REASONS FOR DENYING THE WRIT............. 13
I. THE ORDER ENTERED BY THE UNITED
STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT AFFIRMING THE DISTRICT
COURT’S REMAND OF PETITIONERS’
REMOVAL UNDER 28 U.S.C. § 1443 IS NOT IN
CONFLICT WITH DECISIONS FROM THIS
COURT OR WITH DECISIONS FROM OTHER
COURTS OF APPEALS, AND FURTHER, DOES
NOT CALL FOR AN EXERCISE OF THIS
COURT’S SUPERVISORY POWER............. 13
Il. THE OPINION OF THE THIRD CIRCUIT
COURT OF APPEALS HAS NOT DECIDED AN
IMPORTANT QUESTION OF FEDERAL LAW
WHICH HERETOFORE HAS NOT BEEN
RESOLVED BY THIS COURT; INSTEAD, THIS
COURT SETTLED THE QUESTION OF FED-
ERAL LAW RAISED BY PETITIONERS IN
GEORGIA V. RACHEL, 384 U.S. 780 (1966) AND
IN CITY OF GREENWOOD V. PEACOCK, 384
U.S. 808 (1966), AND REAFFIRMED THOSE
HOLDINGS IN JOHNSON V. MISSISSIPPI, 421
We See CEU EE « cvs sencuksauwaeennaiensoulen 19
lil
TABLE OF CONTENTS - Continued
Page
Ill. NO CONFLICT RELATING TO THE APPEAL-
ABILITY OF REMAND ORDERS EXISTS
AMONG THE VARIOUS CIRCUIT COURTS OF
APPEALS; THUS, CERTIORARI IS NOT NEC-
mous Ee Bette ACTION... ........sscccseens 26
RE SLO, I 30
iv
TABLE OF AUTHORITIES
Page
City of Greenwood v. Peacock, 384 U.S. 808 (1966) .. . . passim
Conrad v. Robinson, 871 F.2d 612 (6th Cir. 1989)
Lae Me CRRREAE ER a 13, 14, 15, 16
Davis v. Glanton, 107 F.3d 1044 (3d Cir. 1997)
PN ee Pe ge SE on Chee RNS 7, 18, 24, 28, 29
Franchise Tax Board v. Construction Laborers Vaca-
oes True, Ge GE 0 Eka 5 eke es icis cae nscnnns 29
Georgia v. Rachel, 483 U.S. 780 (1966)............ passim
Hamm v. City of Rock Hill, 379 U.S. 306 (1964)....... 22
Hatchard v. Westinghouse Broadcasting, Co., 516 Pa.
Me ae ee og Se er err re res ere 16
Herbert v. Lando, 441 U.S. 153 (1979) ...........0000- 21
Johnson v. Mississippi, 421 U.S. 213 (1975)..... 18, 19, 24
MacElree v. Philadelphia Newspapers, Inc., 544 Pa.
117, 674 A.2d 1050, reh’g denied, No. 11 E.D.
Appeal Dkt. 1995, 1996 Pa. LEXIS 1243 (June 11
EMER ei Ln FO nee ry nn re arity ree rate a i oe
New York Times v. Sullivan, 376 U.S. 254 (1964)... 5, 20, 21
Quackenbush v. Allstate Ins. Co., 116 S.Ct. 1712
Lo Bere nr eee rrr eT re eer ee ern S 27
Sofarelli v. Pinellas County, 931 F.2d 718 (11th Cir.
| ae cre earn ee or an reer 16
Thermatron Products, Inc. v. Hermansdorfer, 423 U.S.
Sg WERE SCRE E TCCT RET COT eT Oey se eer ree 26, 27
Whatley v. City of Vidalia, 399 F.2d 521 (5th Cir.
ee eT ETE ee ETT ET Tere TCoe rt ere Te ee 16, 17
Vv
TABLE OF AUTHORITIES - Continued
Page
Supreme Court Rule 14.1, Rule 10................ 3, 19
Be Sa SU hx oes ns Keen danedeeeeveos eee 28
yeh ee See Teer eer re ee passim
Be ia Rs soy cand 69 4000009040e rea Caeee ReeeE 28
ee Be err re ere re et 7
42 USC. § 1985(3) .............0sc0000k-- 1, 2, 4, 7, 18
COUNTER CITATION TO OFFICIAL AND
UNOFFICIAL OPINIONS AND
ORDERS ENTERED BELOW
The instant Petition for Writ of Certiorari seeks
review of an opinion of the United States Court of
Appeals for the Third Circuit, reported at 107 F.3d 1044 (3d
Cir. 1997). In an unpublished Order, dated April 1, 1997,
the Third Circuit Court of Appeals, en banc, denied
rehearing. (See Order, attached hereto as Appendix A.)
The Order of the United States District Court for the
Eastern District of Pennsylvania granting remand (the
Order from which the appeal was initially taken) is
reported at 921 F.Supp. 1421 (E.D.Pa. 1996).
+
COUNTER STATEMENT OF THE
CASE AND THE FACTS
Essentially, Petitioners in this action are asking this
Court to use the Ku Klux Klan Act, 42 U.S.C. § 1985(3), to
create an immunity from state court tort actions for every
African-American (and presumably every minority)
charged with defamation in a state court complaint. For
centuries-long, however, defamation actions have been
tried in the courts of the various states without regard to
the minority-status of the alleged defamer. Certainly,
under this Court’s well established precedent, a state
court defendant cannot establish that he or she will be
“denied or cannot enforce” rights in the state court pro-
ceeding just because he or she is African-American.
Following Petitioners’ request through to its logical
conclusion, every tort action filed in any state against a
minority defendant would be removed to the federal
courts, contrary to the explicit language of this Court’s
holding in City of Greenwood v. Peacock, 384 U.S. 808 (1966)
that 28 U.S.C. § 1443 “does not require and does not
permit the judges of the federal courts to put their breth-
ren of the state judiciary on trial.”! Id. at 828. Federal
removal jurisdiction pursuant to Section 1443 cannot be
premised upon such a ridiculous and tortured interpreta-
tion of Section 1985(3).2 As set forth herein, Petitioners
have failed to establish any of the reasons set forth in the
rules of this Court for which certiorari may be granted,
and as such, the instant petition for writ of certiorari
should be denied.
Notwithstanding the myriad misrepresentations of
law and fact contained in Petitioners’ Petition, and fur-
ther, notwithstanding the continuous references to some
nebulous “new equilibrium in civil rights jurisprudence”
1 Indeed, Petitioner-defendants have admitted that they
could be successful in the state court. (See Petitioner-
defendants’ opposition to Plaintiffs’ remand motion, at page 5).
2 As Respondent-plaintiffs indicated to the District Court
in their motion for remand, the frivolousness of Petitioner-
defendants’ removal argument can be examined in the
following example. If two and one-half months prior to the
filing of the Barnes Foundation’s civil rights suit (the Barnes
Foundation is not a party to the underlying state court tort
action), Petitioner Glanton confronted one of the Respondents
on the street and during that confrontation, called the
Respondent a “racist” and slapped him or her across the face,
the Petitioners’ position would be that any state law cause of
action for intentional tort arising out of Petitioner Glanton’s
conduct would be extinguished from state court review by
reason of a later filed civil rights suit claiming a violation of
Section 1985(3). Such a position is not sanctioned by, nor
permitted by, Section 1985(3).
spun throughout Petitioners’ entire Petition in an obvious
attempt to distract this Court’s attention, it is evident that
the underlying, improperly removed action is a straight-
forward state court action for defamation, libel and
slander based upon a scheme to portray in public news-
papers and in news releases that the state court plaintiffs’
conduct constituted dishonesty in public office through a
hidden agenda of racism - a cause of action specifically
permitted by Pennsylvania law in MacElree v. Philadelphia
Newspapers, Inc., 544 Pa. 117, 674 A.2d 1050, reh’g denied,
No. 11 E.D. Appeal Dkt. 1995, 1996 Pa. LEXIS 1243 (June
11 1996). The underlying action was instituted by several
individual residents of the Township of Lower Merion
(hereinafter “Respondents” or “Plaintiffs”), who, at the
time of the tortiously defamatory conduct complained of,
also served as commissioners of the Township of Lower
Merion (hereinafter the “state court defamation action”).°
Petitioners’ instant petition fails to establish any of the
reasons set forth in Supreme Court Rule 10, for which
petitions for writ of certiorari may be granted.
After having failed before the District Court and
before the Third Circuit Court of Appeals in their
attempts to escape liability for their intentionally tortious
3 Unlike as suggested by Petitioners (page 1 of their
petition), out of the fourteen (14) Commissioners who currently
comprise the township’s board of commissioners, only eleven
(11) are plaintiffs in the underlying state court defamation
action. Moreover, even though Petitioners refuse to cite to entire
sentences from Respondents’ complaint (obviously in an
attempt to misstate the facts), Respondents’ complaint plainly
identifies the Respondent-plaintiffs as individual residents of
the Township of Lower Merion. See Complaint at {¥ 1 and 4.
conduct, Petitioners are now hoping to persuade this
Court that federal law somehow “immunizes” them from
state court civil actions for defamation, libel and slander
simply because they are African-Americans. That position
is clearly inconsistent with established defamation juris-
prudence, for it is unmistakable that defamation laws
exist without regard to the “status” of the speaker, i.e.,
defamation is color-blind. Further, and as noted by the
Third Circuit, no federal statutes, inclusive of 42 U.S.C.
§ 1985(3), grant immunity from state civil actions brought
to seek redress for defamatory statements. No matter
* Petitioners’ petition is rife with misstatements and
mischaracterizations of fact and law. Respondents have
attempted to address throughout this opposition (consistent
with Supreme Court Rule 15.2) all of those misstatements even
though it is evident that none of the allegations contained in the
instant petition for writ of certiorari have any bearing upon
whether Petitioners’ initial removal on March 7, 1996, was
jurisdictionally proper. For instance, and as an example of the
nonsense which comprises the instant petition, at page 8 of their
petition, Petitioners attempt to support their request by
claiming that references to Petitioner Glanton during
depositions as “Richard” are indicative of civil rights violations:
In addition to these vast exploratory excursions,
[Respondents] have continually referred to petitioner
trustee Glanton on the record of his and the other
petitioner trustees depositions as “Richard” over
continued objections. Remonstrances to counsel to
avoid such characterizations as resonant of historical
intentional diminutives as a badge of inferiority were
disregarded.
Nevertheless, it was Petitioner Glanton, himself, who asked
Respondents’ counsel to call him “Richard”: “In this deposition,
Mr. Rosen, refer to me as Mr. Glanton or Richard, as you prefer —
it doesn’t matter. ...” (See Excerpts from July 3, 1996 deposition
how many times Petitioners’ attempt to improperly label
the state court defamation action as retaliatory (a claim
which is presently pending in a Section 1983 action
brought by the Barnes Foundation), their repeated refer-
ences to civil rights laws and to the alleged “new equilib-
rium in civil rights jurisprudence” do not change the
simple, controlling fact that Petitioner Glanton, in con-
spiracy with the other Petitioners, made the statements
complained of, and, if all of the elements of the state
defamation claim are proved at trial, consistent with this
Court’s opinion in New York Times v. Sullivan, 376 U.S. 254
(1964), Plaintiffs will establish that Petitioner-defendants
defamed them — starting in November of 1995.
Plaintiffs’ complaint alleges that on November 27,
1995, in an article published in the Philadelphia Inquirer,
Richard H. Glanton, as part of a “smear campaign,” and
in conspiracy with, and with the encouragement of Dr.
Niara Sudarkasa, Dr. Shirley A. Jackson and Charles
Frank,> “maliciously and knowingly and with wanton
and careless disregard of the consequences of his conduct
and the harm it would inflict, accused the plaintiffs of
dishonesty in carrying out their civic duties in response
to the parking, traffic and safety issues of the residents as
nothing more than ‘thin[ly] disguised racism’ for their
failure to comply with his demands and asserted that
‘There is no way you cannot see racism in the way they
of Richard H. Glanton, at pages 157-158, attached hereto as
Appendix B.)
5 After discovery, a voluntary notice of dismissal, without
prejudice, was approved by the court, dismissing Defendant
Charles Frank on August 29, 1996.
sn”
are treating the Barnes Foundation.
1 44).°
(Complaint, at
Consequently, the state court defamation action, filed
only approximately three (3) months after the tortious
, “
6 Contrary to Petitioners’ “characterization” of
Respondents’ complaint (page 2 of their petition), Respondents’
state court complaint does not seek damages for any allegations
contained in the Barnes Foundation’s federal civil rights
complaint, which was filed on January 18, 1996, almost two (2)
months after the defamatory statements were published by Mr.
Glanton in November of 1995. Instead, Respondents alleged in
their state court complaint that Petitioner-defendants’ malicious
motives were further extant by the “filing of the [Barnes’s]
federal lawsuit, and thereafter, delivering it immediately to the
press, deliberately delaying service and notice to Plaintiffs. . . . ”
(Complaint, at ¥ 48). Moreover, even though Petitioners deny
that Petitioner Glanton made the defamatory statements about
Respondents — but simultaneously alternatively claim that if a
jury were to “properly determine that the alleged defamation
referred to the plaintiffs, which is denied, said statements,
referring to thinly disguised racism, and racism, is and was
true,” (New Matter, at { 9) — Petitioners oddly never joined the
newspaper that published Petitioners’ defamatory statements
as a third party defendant.
Tellingly, however, a reporter for another newspaper, the
Main Line Times, was deposed as part of Plaintiffs’ claim of a
“smear campaign” in November of 1995. That newspaper
published almost identical defamatory statements made by
Petitioner Glanton on November 23, 1997 only four (4) days
prior to the November 27, 1995 Philadelphia Inquirer article
(“Meanwhile, Glanton said the resolution passed by the Lower
Merion board of commissioners at last Wednesday’s business
meeting was about racism, not public safety, illegal parking,
crowded streets, or traffic jams”). Reporter Yanofsky testified
that Petitioner Glanton made those statements to her about
Respondents. (See Excerpts from January 16, 1997 deposition of
Beth Yanofsky, at pages 13-14, attached hereto as Appendix C.)
conduct occurred, was filed well within the one (1) year
statute of limitations specifically set forth in Pennsylva-
nia law, 42 Pa.C.S. § 5523. Immediately, thereafter, on
March 7, 1997, Petitioners improperly removed the state
court defamation action to the United States District
Court for the Eastern District of Pennsylvania.
Upon Respondents’ motion for remand, the District
Court, after full briefing and oral argument, held that
Petitioners had completely failed to establish that federal
removal jurisdiction existed at the time Petitioners filed
their “notice of removal.” As a result, the District Court
remanded the Respondents’ purely state law claims to the
Montgomery County Court of Common Pleas pursuant to
this Court’s holding in City of Greenwood v. Peacock, 384
U.S. 808 (1966).
The United States Court of Appeals for the Third
Circuit affirmed that remand order concluding that Peti-
tioners had indeed failed to satisfy the narrow and well-
defined requirements for removal under Section 1443,
and held that “it is clear that nothing in § 1985(3) or in
Griffin immunizes the Trustees from civil state court defa-
mation actions.” Davis v. Glanton, 107 F.3d 1044, 1051 (3d
Cir. 1997). On April 1, 1997, the Third Circuit Court of
Appeals denied Petitioners’ request for rehearing en
banc. Now, as part of their “petition,” Petitioners com-
plain about the Third Circuit’s opinion, as follows:
The Court did not address the effect of the state
law of MacElree,{7] making the phrase “racism”
7 MacElree v. Philadelphia Newspapers, Inc., 544 Pa. 117, 674
A.2d 1050, reh’g denied, No. 11 E.D. Appeal Dkt. 1995, 1996 Pa.
LEXIS 1243 (June 11 1996).
actionable, as impeding the ability to protect
equal civil rights in the state court.
(Petitioners’ petition, at pages 4-5.)
The Pennsylvania Supreme Court in MacElree, how-
ever, did not simply “make[ ] the phrase ‘racism’ action-
able.” Instead, applying well established Pennsylvania
law to an appeal of an order granting preliminary objec-
tions, the Pennsylvania Supreme Court noted that if a
statement accuses or permits an inference that a public
official is engaging in dishonesty in office through a
hidden agenda of racism - abusing the power of his
elected position in order “to further racism and his own
political aspirations” — such an accusation constitutes a
charge of misconduct in office, and as a result, fits within
the category of defamation per se. MacElree v. Philadelphia
Newspapers, Inc., 544 Pa. 117, 125, 647 A.2d 1050, 1054
(1996).
Epitomizing the lack of merit to Petitioners’ instant
Petition for Writ of Certiorari, as well as to Petitioners’
improper removal, there is, and was, absolutely no reason
for the Third Circuit to address the Pennsylvania
Supreme Court’s opinion in MacElree. Even if Petitioners
believe that MacElree is not sound jurisprudence, removal
in this action is not the proper method by which to test
the MacElree decision. Instead, as noted by this Court on
numerous occasions, including in City of Greenwood v.
Peacock, numerous methods exist by which a litigant may
seek to vindicate perceived violations of federal rights in
state court - one of those being direct review to this
Court following an unfavorable verdict if the claims have
not been vindicated by the trial or appellate courts of the
state. City of Greenwood v. Peacock, 384 U.S. 808, 828 (1966).
Therefore, Petitioners’ complaints are completely unsup-
ported and without merit, and as such, having failed to
establish any of the reasons for which certiorari may be
granted, this Court should deny the instant petition.
Petitioners also attempt to support their petition by
again referring repeatedly to statements which Respon-
dents’ counsel purportedly made in the press that the
purpose of the state court defamation action was
intended to pain and stop Petitioners from discussing
racism. (Petitioners’ petition, at page 3). Notwithstanding
these intentionally misleading “soundbites,” Respon-
dents quoted the newspaper article referred to by Peti-
tioners in their brief filed before the Third Circuit. A
review of the article, therefore, plainly reveals that
Respondents’ counsel was discussing the punitive dam-
ages aspect of relief requested in Plaintiffs’ state court
defamation action - to stop Petitioner Glanton from
intentionally defaming any and all individuals by playing
8 The text of the article reads as follows:
Asked what township officials hope to gain from the
lawsuit, Philadelphia attorney Paul Rosen said, “To
stop this man from his wanton and careless use of the
race card.”
“We want to pain him and make him dig deep into his
own pocket, so every time he wants to use the race
card in the future, he'll think twice.”
“We'll accept whatever the jury decides the fee
should be. They just want him to stop hurting people
and they want their reputations clean. We want
punitive damages that will come out of his personal
pocket, not his insurance company,” Rosen said.
(See Brief for appellees filed in the Third Circuit, at page 30.)
10
the race card against all who oppose him in any manner
in order to obtain a personal and non-racial advantage.
Ironically, but, of course not disclosed to this Court
by Petitioners, during a deposition held in this case on
November 11, 1996, Petitioner Glanton admitted that a
purpose of punitive damages is to “cause [financial]
pain,” and further, to cause a person committing inten-
tionally tortious acts to dig deep into his or her own
personal financial pockets to deter similar intentional
tortious conduct in the future. Indeed, Petitioner Glanton
testified:
MR. ROSEN: This is an article dated - it
indicates Main Line Times,
March 7, 1996. It says, “Asked
what township officials hope
to gain from the lawsuit, Phil-
adelphia attorney Paul Rosen
said, ‘To stop this man from
his wanton and careless use of
the race card.’ ‘We want to
pain him and make him dig
deep into his own pocket so
every time he wants to use
race card in future, he’ll think
twice.’” Is that what you’re
talking about?
MR. GLANTON: That's part of what I’m talking
about, basically this venal,
mean sort of like let’s sic the
bloodhounds on this black
guy.
MR. ROSEN: Is this a racist comment?
MR. GLANTON: Oh, yes, definitely.
11
MR. ROSEN: I made a racist comment here?
MR. GLANTON: Yes.
MR. ROSEN: According to this, I am a rac-
ist?
MR. GLANTON: Well, no, I didn’t say that.
* * *
MR. ROSEN: Now, you understand the con-
cept of punitive damages is to
inflict damages upon some-
body so that they feel [pain]
and dig deep into their
pockets so they don’t do
something again; isn’t that
correct?
MR. GLANTON: Yes.
(See Excerpts of November 7, 1996 deposition of Richard
Glanton, at pages 815 — 822, attached hereto as Appendix
D (emphasis supplied)).
Accordingly, a review of Petitioners’ petition, exclud-
ing all of the misstatements of law and fact contained
therein, demonstrates that Petitioners are keenly aware
that they cannot establish the “denied or cannot enforce”
requirement for removals under Section 1443 pursuant to
this Court’s opinions in Georgia v. Rachel, 384 U.S. 780
(1966) and City of Greenwood v. Peacock, and further, that
none of the reasons set forth in Supreme Court Rule 10
for the grant of certiorari exist.
In an effort to overcome that deficiency, Petitioners
instead piece intentional misrepresentations together
with an overarching theme of some “new equilibrium in
civil rights jurisprudence,” desperately hoping to create a
12
smoke screen large enough to divert this Court’s atten-
tion away from the real issues: (1) that they failed, and
indeed cannot, establish that they will be denied or will
not be able to enforce all of their rights in the courts of
the State of Pennsylvania and (2) that the Third Circuit’s
opinion affirming the District Court’s remand order was
correct and consistent with prior decisions of this Court,
as well as with decisions from the various circuit courts
of appeals -— confirming that no “conflict” between the
circuits or with this Court exists.
Since the remand order was entered by the District
Court, the state court defamation action has proceeded in
the ordinary course in state court. The state court over-
ruled all of the preliminary objections raised by Peti-
tioners to Respondents’ state court complaint.
Furthermore, upon motion by Respondents, discovery
was ordered to be completed on an expedited basis. Thus,
discovery in the state court defamation action is now
complete, and as such, the case is in the proper pro-
cedural posture to be scheduled for trial.
*
13
REASONS FOR DENYING THE WRIT
I. THE ORDER ENTERED BY THE UNITED STATES
COURT OF APPEALS FOR THE THIRD CIRCUIT
AFFIRMING THE DISTRICT COURT’S REMAND
OF PETITIONERS’ REMOVAL UNDER 28 U.S.C.
§ 1443 IS NOT IN CONFLICT WITH DECISIONS
FROM THIS COURT OR WITH DECISIONS FROM
OTHER COURTS OF APPEALS, AND FURTHER,
DOES NOT CALL FOR AN EXERCISE OF THIS
COURT’S SUPERVISORY POWER
In petitioning this Court for a Writ of Certiorari,
Petitioners simply assert, but without any analysis, that
the Third Circuit’s holding in this matter conflicts with
the decisions of other circuits. Notwithstanding that
assertion obviously made in an attempt to fit within the
narrow strictures of this Court’s rules relating to writs of
certiorari, a study of the cases cited by Petitioners,
including a review of the Third Circuit’s analysis of those
same cases, discloses that no such alleged conflict among
the various circuit courts of appeals exists.
To begin with, Petitioners claim that the Sixth Circuit
Court of Appeals’ decision in Conrad v. Robinson, 871 F.2d
612 (6th Cir. 1989) “conflicts” with the decision of the
Third Circuit Court of Appeals in the instant action.
However, even as recognized by the Third Circuit, the
decision in Conrad addressed a completely different
question, and thus, while providing absolutely no sup-
port for Petitioners’ claims, the analysis employed in that
case does not substantiate Petitioners’ unfounded claim
that a “conflict” among the various circuit courts of
appeals exists.
14
In Conrad v. Robinson, Conrad filed a state court libel
action against Robinson, claiming that certain statements
which Robinson had made about Conrad in a Cleveland
newspaper, the Plain Dealer, were libelous. Upon a review
of Conrad’s state court complaint, the court of appeals
concluded that the only statements made by Robinson
that were being objected to in Conrad’s complaint were
statements specifically relating to an earlier federal court
complaint which Robinson had filed against AFL-CIO
Local 496, of which Conrad was the business manager.
In deciding whether Robinson’s removal to federal
court was appropriate, the Sixth Circuit noted that for
purposes of Section 1443, Title VII constituted a federal
equal rights law. Addressing the well established “denied
or cannot enforce” requirement particular to removals
under Section 1443, and under the specific factual sce-
nario of that case, the Sixth Circuit Court of Appeals
concluded that since Conrad’s state court libel action was
only objecting to Robinson’s statements in the newspaper
reiterating allegations of his earlier-filed federal court
lawsuit, the speech at issue — allegations repeated from
his prior federal suit — was so closely related to the earlier
filed lawsuit (an action expressly protected from retalia-
tion under Title VII),2 that removal under Section 1443
was justified under this Court’s holding in Georgia v.
Rachel, 483 U.S. 780 (1966). Conrad v. Robinson, 871 F.2d at
616.
Nevertheless, and supporting the Third Circuit’s
opinion in this matter, the Sixth Circuit acknowledged the
2 No such federal statute prohibiting retaliation against, or
providing immunity for, defamation exists in this case.
15
extremely limited application of its opinion, suggesting
that “[h]ad Robinson’s comments in the Plain Dealer been
unrelated to his federal court case against Local 496, but
were just general allegations that Conrad discriminated
on the basis of race, the result might very well be differ-
ent.” Id.
Consequently, it is evident that Conrad v. Robinson is
distinguishable from Petitioners’ removal attempt on
numerous grounds; thus, not providing any support for
Petitioners’ instant contention that a “split” among the
various circuit courts of appeals exists. In Conrad, unlike
Petitioners, Robinson relied upon a specific federal stat-
ute which explicitly prohibited any form of retaliation for
the filing of employment discrimination charges.
Moreover, completely opposite to the factual situa-
tion in Conrad, Respondents’ state court defamation
action seeks damages for intentionally defamatory state-
ments first made in November of 1995. When Petitioner
Glanton first made the defamatory statements in Novem-
ber of 1995, they were communicated to reporters entirely
independent of any activity - “protected” or otherwise -
in which the Barnes Foundation (an entity completely
separate from Petitioners) engaged two (2) months later.
Indeed, neither law nor logic supports Petitioners’
attempt to use the Barnes Foundation’s subsequent filing
of a civil rights action to extinguish, or otherwise trump,
Respondents’ clear right to seek relief in Pennsylvania
state court for Petitioners’ prior intentionally tortious
16
conduct purposefully designed to injure Respondents’
fundamental constitutional right to reputation.!°
Accordingly, and as acknowledged by the Third Cir-
cuit Court of Appeals, the opinion of the Sixth Circuit in
Conrad is completely distinguishable from the removal
issue raised by Petitioners in the instant action. Thus, it is
evidence that the circuit courts of appeals are not in
conflict with respect to application of this Court’s well
settled precedent relating to the rare instances of federal
removal jurisdiction pursuant to 28 U.S.C. § 1443.
Petitioners’ citation to Sofarelli v. Pinellas County, 931
F.2d 718 (11th Cir. 1991) and Whatley v. City of Vidalia, 399
F.2d 521 (5th Cir. 1968), similarly, do not reveal a “con-
flict” among the circuit courts of appeals. Instead, these
opinions confirm that the instant petition is without
merit, and further buttress the otherwise solid foundation
of precedent upon which the Third Circuit’s opinion in
this matter is based.
In Sofarelli, an action was initiated in Florida state
court against Sofarelli, seeking to prohibit Sofarelli from
relocating a house. Sofarelli, removed the action to fed-
eral court, counterclaiming that the state court lawsuit
was an effort to coerce, intimidate or otherwise deter him
from providing housing, and thus, directly contrary to
explicit prohibitory language of the federal Fair Housing
Act requiring that no person shall coerce, intimidate,
threaten or otherwise interfere with any other person
10 See Hatchard v. Westinghouse Broadcasting, Co., 516 Pa. 184,
194, 532 A.2d 346, 351 (1987) (under the Pennsylvania
Constitution, reputation is considered to be a fundamental right
equal in importance to life, liberty and property).
17
who encourages the exercise of rights granted by that
Act. Since the state action was designed to deter conduct
which Sofarelli, by specific federal statute could partici-
pate in with impunity, the parties to the action did not
dispute that the removal fit within the narrow confines of
this Court’s holding in Georgia v. Rachel, 384 U.S. 780
(1966).
Likewise, in Whatley v. City of Vidalia, 399 F.2d 521
(5th Cir. 1968), after certain individuals were arrested in
September of 1966, the individuals arrested removed the
prosecutions to federal court pursuant to Section 1443,
claiming that they had been arrested for engaging in
~ activity designed to encourage voter registration — activ-
ity for which Congress had specifically provided an
immunity (i.e., specifically substituted a right for conduct
otherwise labeled criminal or tortious): “No person shall
intimidate, threaten or coerce . . . any person for urging
or aiding any person to vote or attempt to vote.” Id. at 522
n.2 (citing 42 U.S.C. § 1973i(b)). As such, reversing the
district court’s remand order, the Fifth Circuit noted that
since Congress had specifically immunized any and all
activity undertaken to assist others to vote, under the
“denied or cannot enforce” analysis long required by this
Court, a prosecution based upon that identical immu-
nized conduct would itself be an act by which the
movant’s civil rights would be violated. Id. at 526.
Thus, settled precedent from this Court, consistently
applied by all of the circuit courts, establishes that absent
a “formal expression of state law” confirming that a state
court defendant will be “denied or cannot enforce” fed-
eral rights in a state court proceeding, a state court defen-
dant will not be able to remove an action from state court
pursuant to Section 1443 unless the state court defendant
18
can point to a specific federal equal civil rights statute in
which Congress immunized the specific conduct at issue
— legislatively substituting a federal right to engage in
certain conduct otherwise considered to be tortious or
criminal under state law.
Affirming the District Court’s order remanding this
action to its state court forum, the Third Circuit Court of
Appeals held as follows:
A careful reading of § 1985(3) makes clear,
however, that the provision grants no such pro-
tection. It does not confer an absolute right on
private citizens to defame others. Nor does it
confer immunity from state civil actions brought
to seek redress for those statements. Further-
more, the Trustees do not attempt to demon-
strate, and apparently cannot demonstrate, that
a state law exists that would on its face deny
them the ability to enforce their equal rights in
state court.
Davis v. Glanton, 107 F.3d 1044, 1050 (3d Cir. 1997).
Accordingly, and without regard to Petitioners’ rep-
resentations -— representations which are purposefully
“skewed” by Petitioners in attempting to convince this
Court to grant their Petition for Writ of Certiorari - an
examination of all of the cases cited by Petitioners, pos-
itively illustrates that the Third Circuit’s thoughtful and
comprehensive opinion in this matter is consistent with
the well established precedent set forth in this Court's
trilogy of cases — Georgia v. Rachel, 384 U.S. 780 (1966);
City of Greenwood v. Peacock, 384 U.S. 808 (1966); and
Johnson v. Mississippi, 421 U.S. 213 (1975) — as well as with
the opinions of the various circuit courts of appeals that
have addressed Section 1443 removals.
19
Therefore, since the United States Court of Appeals
for the Third Circuit has not decided an important federal
question in a way that conflicts with relevant decisions of
this Court, and since the United States Court of Appeals
for the Third Circuit has not entered a decision that is in
conflict with the decision of another United States Court
of Appeals on the same important matter, this Court
should deny Petitioners’ instant Petition for Writ of Cer-
tiorari.
Il. THE OPINION OF THE THIRD CIRCUIT COURT
OF APPEALS HAS NOT DECIDED AN IMPOR-
TANT QUESTION OF FEDERAL LAW WHICH
HERETOFORE HAS NOT BEEN RESOLVED BY
THIS COURT; INSTEAD, THIS COURT SETTLED
THE QUESTION OF FEDERAL LAW RAISED BY
PETITIONERS IN GEORGIA V. RACHEL, 384 U.S.
780 (1966) AND IN CITY OF GREENWOOD V. PEA-
COCK, 384 U.S. 808 (1966), AND REAFFIRMED
THOSE HOLDINGS IN JOHNSON V. MISSISSIPPI,
421 U.S. 213 (1975)
Without explanation or reasoning, and ostensibly to
support their incoherent petition which does not comply
with Supreme Court Rule 14.1, let alone Rule 10, Peti-
tioners simply use the instant petition as yet another
vehicle to “reargue” their improper removal: “Our nation
is in the process of developing a new equilibrium of the
values of fair treatment, federalism, and tolerance. The
threat to this equilibrium of the distortion involved here
is a clear one.” Based on that so called “new equilib-
rium,” Petitioners claim that the issue decided by the
Third Circuit Court of Appeals — that the District Court's
20
order remanding Respondents’ purely state law com-
plaint for defamation, libel and slander to the Pennsyl-
vania state court system —- is so important as to require
this Court to grant certiorari in order to exercise this
Court’s oversight responsibility.
To begin with, Petitioners continue to make much
ado about a lawsuit filed by a separate entity — the Barnes
Foundation —- approximately two (2) months before
Respondents filed the instant defamation action. Again,
however, Petitioners neglect to point out, or otherwise
consider, that the defamatory statements made by Peti-
tioner Glanton were published almost two (2) months
before the civil rights suit was filed. Moreover, contrary
to Petitioners’ representations, i.e., that Respondents, in
their state court complaint, are “proceeding against the
federal civil rights plaintiff,” (see Petitioners’ petition, at
page 19), it is obvious that Respondents are not proceed-
ing against the Barnes Foundation - apparently this mis-
statement was purposefully interjected to bolster their
false and unsupported claim that the state court defama-
tion action is “retaliatory.”
Petitioners additionally claim that if this Court
denies their petition, that that denial will somehow con-
flict with this Court’s holding in New York Times v. Sul-
livan, 376 U.S. 254 (1964). This contention is absurd, and
not surprisingly, is neither explained by, nor substanti-
ated by, Petitioners.
Apparently, Petitioners believe that this Court's deci-
sion in New York Times v. Sullivan provides them with a
license to defame. Further evidencing the complete lack
of merit to their petition, Petitioners are seemingly claim-
ing that removal is required under Section 1443, and this
21
Court’s decision in Georgia v. Rachel, 384 U.S. 780 (1966),
since any state court lawsuit brought against them for
defamation, libel and slander is an action which itself
violates their constitutional rights. That position is
expressly contrary to this Court’s decision in New York
Times v. Sullivan, and its progeny.
Notwithstanding their absurd contentions, it is well
established that in adopting the New York Times standard
for public official and public figure defamation cases, this
Court, consistent with the rigors of the First Amendment,
was simply making it more difficult for a plaintiff to
obtain a defamation verdict. Contrary to Petitioners’ sug-
gestion, this Court’s decision in New York Times did not,
and was never intended to, “immunize” defamatory
statements from review:
[I]f the claimed inhibitim [of speaking out]
flows from the fear of damages liability for pub-
lishing knowing or reckless falsehoods, those
effects are precisely what New York Times and
other cases have held to t consistent with the
First Amendment. Spreading false information
in and of itself carries no First Amendment cre-
dentials. “[T]here is no Constitutional value in
false statements of fact.”
Herbert v. Lando, 441 U.S. 153, |71 (1979) (citing Gertz v.
Robert Weich, Inc., 418 U.S. 323 340 (1974))
Accordingly, it is evident that Petitioners’ instant
Petition for Writ of Certiorari slould be denied since the
opinion of the Third Circuit Court of Appeals does not
create an issue of extreme federal importance requiring
this Court's review.
22
Furthermore, the Third Circuit’s application of well
established precedent relating to removals under Section
1443 illustrates that federai law on this subject is well
settled, and was applied consistently and correctly by the
Third Circuit Court of Appeals. Thus, there is no reason
to grant Petitioners’ Petition for Writ of Certiorari.
In Georgia v. Rachel, this Court acknowledged that
under a long line of precedent, removal pursuant to 28
U.S.C. § 1443 is warranted “only if it can be predicted by
reference to a law of general application that the defen-
dant will be denied or cannot enforce the specified fed-
eral rights in the state courts.” Georgia v. Rachel, 384 U.S.
780, 800 (1966). This Court noted the reason for this well
established principle:
It ensured that removal would be available only
in cases where the predicted denial appeared
with relative clarity prior to trial. It also ensured
that the task of predication would not involve a
detailed analysis by a federal judge of the likely
disposition of particular federal claims by par-
ticular state courts. That task not only would
have been difficult, but it also would have
involved the unseemly process of prejudging
their brethren of the state courts.
Id. at 803-804. However, in the narrow circumstances of
that case, since Congress, as interpreted by this Court in
Hamm ov. City of Rock Hill, 379 U.S. 306 (1964), had speci-
fically substituted a right to engage in conduct which was
otherwise labeled wrongful, i.e., criminal, this Court con-
cluded that any proceedings instituted against that con-
duct in state court would satisfy the “denied or cannot
enforce” requirement of Section 1443 removal. Id. at 804.
eee
23
Thereafter, in City of Greenwood v. Peacock, 384 U.S.
808 (1966), a case decided the same day, but importantly
without a Congressional mandate to substitute a right
for otherwise improper conduct, this Court, again apply-
ing long-standing precedent, opined that removal under
Section 1443 was not proper:
The present case differs from Rachel in two sig-
nificant respects. First, no federal law confers an
absolute right on private citizens - on civil
rights advocates, on Negroes, or on anybody
else — to obstruct a public street, to contribute to
the delinquency of a minor, to drive an auto-
mobile without a license, or to bit a policeman.
Second, no federal law confers immunity from
state prosecution on such charges.
Id. at 826-827 (footnote omitted). Moreover, this Court
reaffirmed its past line of cases holding that removal
under Section 1443 was only available in those rare cases
where a clear prediction could be made on the basis of an
explicit state law that the movant’s federal rights would
be violated in the state court proceeding. Under that
standard, this Court recognized that the motives of the
individuals bringing suit were of no moment:
The motives of the officers bringing the charges
may be corrupt, but that does not show that the
state trial court will find the defendant guilty
[or libel] if he is innocent, or that in any other
manner the defendant will be “denied or cannot
enforce in the courts” of the State any right
under a federal law providing for equal civil
rights.
Id. at 827-828.
24
Furthermore, and completely consistent with the
Third Circuit’s opinion in this matter,!! this Court
announced that it was not following century-old prece-
dent solely resulting from its “blind adherence” to the
principle of stare decisis, but, after thoughtful review, this
Court concluded that its prior decisions were entirely
correct: Section 1443 was not intended to “operate ... a
wholesale dislocation of the historic relationship between
the state and the federal courts” in the administration
and application of state law — whether tort law or crimi-
nal law. Id. at 831.
Ten (10) years later, in Johnson v. Mississippi, 421 U.S.
213 (1975), a case in which numerous individuals were
arrested after engaging in picketing and encouraging the
boycott of certain establishments which they believed
were engaged in discrimination, this Court again denied
removal under Section 1443, reaffirming its well settled
and long standing precedent interpreting Section 1443 -
the same precedent which the Third Circuit Court of
Appeals relied upon in deciding to affirm the District
Court’s order remanding the instant matter to state court.
Clearly, as noted by the Third Circuit, no federal law
confers an absolute right on private citizens — on civil
rights advocates, on African-Americans, or on anybody
else — to defame another individual. Moreover, no federal
law confers immunity from state civil actions brought to
11 The Third Circuit noted that the arguments made by
Petitioners herein (Appellants below) in support of their appeal
of the remand decision, “ignores the rigors of federalism, and
the technical precepts of governing by dint of which the
principles of federalism are translated into reality.” Davis ov.
Glanton, 107 F.2d 1044, 1052 (3d Cir. 1997).
:
:
25
seek redress for defamation. Accordingly, it is evident
that the law, as applied by the Third Circuit Court of
Appeals, is well settled.
As noted earlier, since Petitioners cannot point to an
explicit state law which satisfies the “denied or cannot
enforce” prong of this Court’s test for removal under
Section 1443, and since Congress has not enacted a speci-
fic equal civil rights statute to immunize defamatory
statements — i.e., substituted a right to engage in defama-
tion, conduct otherwise deemed tortious under state law
— Petitioners cannot conjure-up federal removal jurisdic-
tion under Section 1443. As this Court has noted on
numerous occasions: “When [a defendant] has only an
apprehension that such rights will be withheld from him
when his case shall come to trial [in state court], he
cannot affirm that they are actually denied, or that he
cannot enforce them.” Georgia v. Rachel, 384 U.S. 780, 799
(1966) (citing Commonwealth of Virginia v. Rives, 100 US.
303, 319-320 (1879)). Absent a predetermined unequivocal
deprivation of federal rights in a state court proceeding, a
remedy cannot be found in the removal statutes, but
rather, as has been the case for over a century, if it turns
out that federal rights do go without vindication before a
state trial court or a state’s appellate courts, vindication
of those rights can be accomplished by direct review to
this Court. City of Greenwood v. Peacock, 384 U.S. 808, 828
(1966).
Thus, Petitioners have failed to demonstrate a need
for this Court to exercise its supervisory powers, partic-
ularly since the decision of the Third Circuit has not
departed from the accepted and usual course of judicial
proceedings, and further, has not sanctioned such a
departure by the District Court. Moreover, the question
26
decided by the Third Circuit - an opinion entirely consis-
tent with past decisions of this Court - has been settled
by this Court for at least three (3) decades. Petitioners’
Petition for Writ of Certiorari should be denied.
Ill. NO CONFLICT RELATING TO THE APPEAL-
ABILITY OF REMAND ORDERS EXISTS
AMONG THE VARIOUS CIRCUIT COURTS OF
APPEALS; THUS, CERTIORARI IS NOT NECES-
SARY IN THIS ACTION
Ignoring all of the “posturing” contained in the
instant petition as completely irrelevant to determining
whether a writ of certiorari should be granted, Petitioners
merely support their request for a writ of certiorari on the
following declaration:
Certiorari is needed to resolve a recurring and
important conflict among the circuits on a mat-
ter of jurisdiction, a matter of special concern to
this Court, as recognized e.g. in Thermtron Prod-
ucts v. Hermansdorfer, 423 U.S. 336 (1976).
(Petition for Writ of Certiorari, at page 21).
To support that alleged “conflict” among the various
circuit courts, and thus, their petition for writ of cer-
tiorari, Petitioners cite to seven (7) cases (from the Sec-
ond, Fourth, Fifth, Sixth and Eighth Circuits) which they
admit support the Third Circuit’s opinion, but thereafter,
to create the illusion of a conflict, Petitioners cite to
fifteen (15) cases (from the First, Fourth, Fifth, Seventh,
Eighth, Ninth, Tenth and Eleventh Circuits) which they
claim have taken a “contrary approach.”
Notwithstanding their machinations, a review of the
cases cited by Petitioners reveals only one thing: The
27
jurisprudence relating to the appealability of remand
orders is, as has been, well settled for quite some time.
Indeed, in Georgia v. Rachel, this Court recognized the
long-standing precedent prohibiting “reveiw of a remand
order ‘on appeal or otherwise’ in cases removed pursuant
to any statute.” Georgia v. Rachel, 384 U.S. 780, 786 n.6
(1966). This Court noted, however, that in 1964, Congress
amended Section 901 of the Civil Rights Act, specifically
permitting appeals from remand orders in cases initially
removed under 42 U.S.C. § 1443. Id.
Ten (10) years later, this Court refined that otherwise
long-standing precedent as follows: “[O]nly remand
orders issued under § 1447(c) and invoking the grounds
specified there — that removal was improvident and with-
out jurisdiction - are immune from review under
§ 1447(d).” Thermatron Products, Inc. v. Hermandorfer, 423
U.S. 336, 346 (1976). In deciding that issue, however, this
Court specifically indicated that it was neither disturbing
nor taking issue with the otherwise well established pro-
hibition of appeals contained in Section 1447(d). Id. at
351-352. Accordingly, if an order of remand is (1) based
on lack of federal court subject matter jurisdiction or (2)
based on defects in the removal procedure, an appeal
from the order of remand is not permissible. See Quacken-
bush v. Allstate Ins. Co., 116 S.Ct. 1712, 1718 (1996).
In an effort to circumvent this well settled jurispru-
dence, Petitioners, remarkably and utterly disin-
genuously, support their petition by declaring:
The only § 1447(c) ground for remand
which could be at issue herein is “lack of subject
matter jurisdiction,” but it was not explicitly
asserted by the District Court. The District
28
Court’s determination to remand was based on
the discretionary rule of Carnegie-Mellon Univer-
sity v. Cohill, 484 U.S. 343 (1988).
(Petitioners’ Petition for Writ of Certiorari, at page 22
(footnote omitted)).
It is evident, however, that the District Court, in fact,
determined that it did not have subject matter jurisdic-
tion under 28 U.S.C. § 1441 of the removed action, or in
other words, that removal jurisdiction did not exist under
Section 1441.12 To begin with, the District Court acknowl-
edged that no federal question jurisdiction existed on the
face of Respondents’ state court complaint. Moreover,
recognizing that “determining the truth or falsity of the
alleged defamatory statement[s] does not depend on
interpreting § 1983 or any other [federal] statute,” the
District Court further held that Petitioners had failed to
demonstrate that federal law was an essential element of
12 The Third Circuit Court of Appeals addressed
Petitionets’ appeal from the District Court’s refusal to grant
removal fursuant to the All Writs Act, 28 U.S.C. § 1651, opining:
Here, however, the Trustees have not demonstrated
how removal will support jurisdiction that is already
in €xistence. Nor have they identified the
“extaordinary circumstances” necessary to justify
reméval under the Act. See In re Agent Orange Product
Liability Litig., 996 F.2d 1425, 1431 (2d Cir. 1993) (The
Act s not a “jurisdictional blank check which [federal
courts] may use whenever they deem it advisable.”).
Accérdingly neither will we exercise jurisdiction
under § 1651.
Davis v. Ganton, 107 F.3d 1044, 1047 n.4 (3d Cir. 1997). A review
of the irstant Petition for Writ of Certiorari reveals that
Petitioneis are apparently not seeking certiorari on the Third
Circuit's »pinion affirming remand on that basis.
re er Ye ee ae
ee. kee ee ee
ee eer eer |
inrart sb eee i ‘
29
Respondents’ state court complaint. Davis v. Glanton, 921
F.Supp. 1421, 1424 (E.D.Pa. 1996).
Consequently, similar to this Court’s conclusion in
Franchise Tax Board v. Construction Laborers Vacation Trust,
463 U.S. 1 (1983), including this Court’s conclusion that
the matter should have been remanded since federal
jurisdiction did not exist, it is apparent that Respondents’
state court complaint for defamation, libel and slander is
not based upon a federal cause of action nor a claim
which necessarily depends on resolution of a substantial
question of federal law. Thus, no federal jurisdiction
exists pursuant to Section 1441, and as such, pursuant to
well settled law, the District Court’s remand to state court
is not reviewable on appeal or otherwise.
Therefore, it is plain that none of the cases cited by
Petitioners have any relationship to the District Court’s
order remanding Respondents’ purely state court com-
plaint back to its appropriate state court forum for lack of
subject matter jurisdiction pursuant to Section 1441.'%
Accordingly, no “split” among the circuit courts of
13 All of the cases cited by Petitioners in their attempt to
“create” a conflict among the various circuit courts include
cases (1) in which a district court, in its discretion, remanded
pendent or supplemental state court claims upon dismissal or
resolution of a federal court claim; and (2) in which a district
court resolved substantive issues of law prior to remand, i.e.,
resolution of a forum selection clause, waiver of the right to
remove. Thus, none of the cases cited by Petitioners in support
of their “conflict among the circuits” contention involved a
determination by the District Court that it did not have subject
matter jurisdiction under 28 U.S.C. § 1441 as set forth in
Franchise Tax Board v. Construction Laborers Vacation Trust, 463
U.S. 1 (1983).
30
appeals exists; rather, it is evident that without Peti-
tioners’ mischaracterization, the law is well established.
Petitioners’ Petition for Writ of Certiorari should be
denied.
CONCLUSION
For all of the foregoing reasons, and for all of the
reasons contained in the opinion of the Third Circuit
Court of Appeals affirming the District Court’s order, as
well as all of the reasons contained in the District Court’s
order remanding the instant matter to the Pennsylvania
state court, this Court should deny Petitioners’ Petition
for Writ of Certiorari.
Respectfully submitted,
Paut R. Rosen
Counsel of Record
Larry R. Woon, Jr.
Spector GADON & Rossen, P.C.
1635 Market Street, 7th Floor
Philadelphia, PA 19103
(215) 241-8800
Counsel for Respondents
July 31, 1997
ete hae
la
APPENDIX A
KENNETH E. DAVIS; JAMES S. ETTELSON; ALAN C.
KESSLER; FRANK LUTZ; JOSEPH M. MANKO; ORA
B. PIERCE; JAMES J. PRENDERGAST; BRIAN D.
ROSENTHAL; DAVID A. SONENSHEIN; HOWARD L.
WEST; GLORIA P. WOLEK; PHYLLIS L. ZEMBLE v.
RICHARD GLANTON, Individually and as a Trustee
of The Barnes Foundation; NIARA SUDARKASA,
Individually and as a Trustee of the Barnes
Foundation; SHIRLEY A. JACKSON, Individually and
as a Trustee of the Barnes Foundation; CHARLES
FRANK, Individually and as a Trustee of the Barnes
Foundation, Richard Glanton, Niara Sudarkasa, and
Shirley A. Jackson, Appellants
NO. 96-1299
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
1997 U.S. App. LEXIS 6469
April 1, 1997, DATED
PRIOR HISTORY: [*1] (D.C. Civ. No. 96-cv-01800).
Original Opinion of March 3, 1997, Reported at: 1997 U.S.
App. LEXIS 3696.
JUDGES: Present: SLOVITER, Chief Judge. BECKER,
STAPLETON, MANSMANN, GREENBERG, COWEN,
NYGAARD, ALITO, ROTH, LEWIS, McKEE, Circuit
Judges.
OPINION BY: Edward R. Becker, Circuit Judge
OPINION: SUR PETITION FOR PANEL REHEARING
WITH SUGGESTION FOR REHEARING IN BANC
The petition for rehearing filed by appellant having
been submitted to the judges who participated in the
decision of this Court, and to all the other available
2a
circuit judges in active service, and no judge who con-
curred in the decision having asked for rehearing, and a
majority of the circuit judges of the circuit in regular
active service no [sic] having noted for rehearing by the
court in banc, the petition for rehearing is DENIED.
BY THE COURT:
Edward R. Becker
Circuit Judge
DATED: Apr. 1, 1997
3a
APPENDIX B
IN THE COURT OF COMMON PLEAS
MONTGOMERY COUNTY, PENNSYLVANIA
* + *
KENNETH E. DAVIS, et al.,
-VS-
RICHARD GLANTON, Individually
and as a Trustee of
The Barnes Foundation,
NIARA SUDARKASA, Individually
and as a Trustee of
The Barnes Foundation,
SHIRLEY A. JACKSON, Individually
and as a Trustee of
the Barnes Foundation,
CHARLES FRANK, Individually
and as a Trustee of
The Barnes Foundation.
* * +
VOLUME II
* * *
Oral deposition of RICHARD GLANTON, ESQ., held
at the Montgomery County Courthouse, Norristown, PA
19401, on Wednesday, July 3, 1996, beginning at 10:20
a.m., before Catherine E. Kirkland, Ph.D, a Registered
Professional Reporter.
* * *
No. 96-03920
4a
MAC WISE REALTIME REPORTING, INC.
Architects Building
117 S. 17th Street, Suite 2100
Philadelphia, PA 19103
215.972.1757 FAX: 215.972.1761 800.MAC.6210
E-Mail: macwise@netaxs.com
http://www.netaxs.com macwise
[p. 157] what’s in their minds.
MR. ROSEN: I want to know what this man
— that’s what I’m looking for - in understanding -
and this man is familiar with defamation claims. In
making a claim of defamation, I am very interested in
the motivations, how you perceive facts, how you
draw the distinctions in those facts. Because it all
goes to an issue of motivation and intent. I’m
allowed to explore these areas.
BY MR. ROSEN:
Q. However, my question to you was what I
thought was a very simple one. Which is, in your mind, if
somebody is motivated by racism, are they a racist?
That’s a question. And that, to me, is either a yes or no.
A. Two things. In this deposition, Mr. Rosen, refer
to me as Mr. Glanton or Richard, as you prefer — it
doesn’t matter — and not as “this man.”
Secondly, in reponse to your question, with the
knowledge of my explanation in terms of how I sort of
am trying to work my way to an answer - that is, the
previous comment that I [p. 158] just said in response to
the question that was initially asked — I don’t try to probe
eee
5a
into a person’s mind. You do something to me and you do
something to me and you’re not doing it to somebody
else who is the same color as I am, I don’t say are you
racially motivated or are you a racist. It’s irrelevant.
All I’m saying is if you’re doing something to me
because of — and it’s discriminatory, and it’s because of
my color, I don’t care what you are. I know what’s
happening to me.
So as an African-American, I’m not going to have a
treatise written on a racist or racially motivated. All I’m
saying is that you are doing X to me, and it’s discrimina-
tory and it’s wrong. And I don’t give a damn why you’re
doing it. You’re doing it, and it’s wrong, and it’s illegal.
Q. The question I asked you is, if somebody is moti-
vated by racism, do you consider them to be a racist?
A. I can’t answer that except to say that if you do
something to me and you’re not doing it to other
* * +
6a
APPENDIX C
IN THE COURT OF COMMON PLEAS
MONTGOMERY COUNTY, PENNSYLVANIA
* * *
KENNETH E. DAVIS,
JAMES S. ETTELSON,
ALAN C. KESSLER,
FRANK LUTZ,
JOSEPH M. MANKO,
ORA R. PIERCE,
JAMES J. PRENDERGAST,
BRIAN D. ROSENTHAL,
DAVID A. SONENSHEIN,
HOWARD L. WEST,
GLORIA P. WOLEK, AND
PHYLLIS L. ZEMBLE
Vs.
RICHARD GLANTON, Individually :
and as a Trustee of
The Barnes Foundation,
NIARA SUDARKASA, Individually
and as a Trustee of
The Barnes Foundation,
SHIRLEY A. JACKSON, Individually
and as a Trustee of
The Barnes Foundation,
CHARLES FRANK, Individually
and as a Trustee of
The Barnes Foundation
* * *
No. 96-03920
7a
ORAL DEPOSITION OF BETH E. YANOFSKY
THURSDAY, JANUARY 16, 1997
* * *
MAC WISE REALTIME REPORTING, INC.
The Architects Building
117 South 17th Street, Suite 2100
Philadelphia, PA 19103
E-Mail: macwise@netaxs.com
http:///www.netaxs.com/-macwise
215.972.1757 FAX: 215.972.1761 1.800.MAC.6210
* * *
[p. 13] any disclosed source relation to Mr. Glanton?
A. No, I do not.
Q. Now I would like to take you, if I can, to an
article of November 23, 1995, which has been previously
marked during Mr. Glanton’s deposition as Glanton 17.
Could you tell me whether or not, in connection with
the preparation of this article, you had any conversations
with Mr. Glanton?
A. Yes, I did.
Q. And could you tell me, to the best of your recol-
lection, the conversations you had with Mr. Glanton that
ended up in any way being reported in this article?
A. Yes.
I called Mr. Glanton over the telephone within a
week of when this article was published and in that
phone conversation that’s what we talked about.
Q. Could you tell me whether or not Mr. Glanton
said to you that “the resolution passed by the Lower
8a
Merion board of commissioners at last Wednesday’s busi-
ness meeting was about racism, not public safety, illegal
parking, crowded streets [p. 14] or traffic jams?”
A. Yes, he did.
Q. He made that statement to you in a telephone
interview?
A. Yes.
Q. And where it says in the first paragraph of the
ww és
article, “ ‘it’s what we predicted,’ said Richard Glanton,
Barnes Foundation board of trustees president,” did he
make that statement to you?
A. Yes, he did.
Q. Now, could you tell me, with respect to “It’s
what we predicted? - you see that quote?
A. Yes, I do.
Q. Could you tell me what you were talking about?
A. We were talking about the turnout for the open-
ing of The Barnes Foundation.
Q. Meaning the numbers of people that showed up?
A. Yes.
Q. Now, could you tell me anything else that Mr.
Glanton said to you with respect to racism involving the
commissioners of Lower Merion
* * *
Pe ee
9a
APPENDIX D
VOLUME IV
IN THE COURT OF COMMON PLEAS
MONTGOMERY COUNTY, PENNSYLVANIA
* * *
KENNETH E. DAVIS, JAMES S.
ETTELSON, ALAN C. KESSLER,
FRANK LUTZ, JOSEPH M.
MANKO, ORA R. PIERCE, JAMES J.:
PRENDERGAST, BRIAN D.
ROSENTHAL, DAVID A. -
SONENSHEIN, HOWARD L. WEST, :
GLORIA P. WOLEK, AND PHYLLIS :
L. ZEMBLE
vs.
RICHARD GLANTON, Individually
and as a Trustee of The Barnes
Foundation,
NIARA SUDARKASA, Individually
and as a Trustee of The Barnes
Foundation,
SHIRLEY A. JACKSON, Individually -
and as a Trustee of The Barnes
Foundation,
CHARLES FRANK, Individually and ‘
as a Trustee of The Barnes
Foundation
NO. 96-03920
10a
CONTINUED ORAL DEPOSITION
OF RICHARD H. GLANTON, ESQUIRE
THURSDAY, NOVEMBER 7, 1996
MAC WISE REALTIME REPORTING, INC.
The Architects Building
117 South 17th Street, Suite 2100
Philadelphia, PA 19103
E-mail: macwise@netaxs.com
http:// /www.netaxs.com/-macwise
215.972.1757 FAX: 215.972.1761 1.800.MAC.6210
* * *
[p. 815] which is an article you produced in connection
with this discovery in response to the court order. It was
marked as 2A as part of the production of documents
when we were -—
MR. ELLIOTT: You want to mark it?
MR. ROSEN: It has been marked as 2A previ-
ously.
BY MR. ROSEN:
Q. Mr. Glanton, may I walk behind you? Because I
can’t see the article.
A. Sure. I feel comfortable with you behind me.
Q. I have placed in front of you Exhibit 2A.
This is the article that you talked about that pains
you?
A. It is the smoking gun.
Q. This is an article dated —- it indicates Main Line
Times, March 7, 1996.
A ORCS i lumii
lla
It says, “Asked what township officials hope to gain
from the lawsuit, Philadelphia attorney Paul Rosen said,
‘To stop this man from his wanton and careless use of the
race card.
[p. 816] “ ‘We want to pain him and make him dig
deep into his own pocket so every time he wants to use
race card in future, he’ll think twice.’ ”
Is that what you’re talking about?
A. That’s part of what I’m talking about, basically
this venal, mean sort of like let’s sic the bloodhounds on
this black guy.
Q. Is this a racist comment?
Oh, yes, definitely.
I made a racist comment here?
Yes.
According to this, I am a racist?
rF Or O >
Well, no, I didn’t say that.
MR. ELLIOTT: Mr. Glanton, I’m going to object
to that. That is something that we have gone through
again and again.
MR. ROSEN: I don’t mind.
BY MR. ROSEN:
Q. I mean, I’m trying to find out. It is quoting me,
and my quote is racist, as far as you —
A. It is linking me to the aftermath of the reaction of
the O. J. Simpson case by saying [p. 817] “race card.”
12a
That was the first time I had ever heard that term
used.
Q. First time you ever heard the term “race card”
used was in the O. J. Simpson trial?
A. That’s correct, and what you’re linking it to.
Q. Are you telling me that my statement right here
is an indication that I’m a racist?
A. No.
I’m saying this comment is designed to coniure up
racial animosities and to make people resent the fact that
people are opposed. It is sort of like the jelly beans. They
are always always saying - did you read the Texaco
article? Have you been in America for the last three days?
Q. Have you?
A. I’m just - it is the same thing.
Q. Let me see if I can deal with the issues. All right?
A. The black jelly beans stick to the bottom.
Q. Let me see if I can deal with the [p. 818] issues,
okay, and let’s deal with them.
A. Okay.
Q. We’ll deal with this case, if we can, not a class
action suit against Texaco by people claiming they have
not been treated fairly as class.
A. Same thing.
Q. Are you attributing my statement to the state-
ments that were made in the Texaco case?
a ae re
13a
A. Iam saying it is sort of the same kind of cryptic
comment. Race card, it is coded.
Q. Are you saying that the statements about the
jelly beans sticking to the bottom of the bag that came out
in the paper about the executives in Texaco is the same as
me?
A. This is designed to make people hate me because
of race because you are saying that I’m always crying
race.
Q. Aren’t you?
A. No.
Q. You’re not?
A. No, I am not, not unless a racist is on my foot.
Q. So that the only time you have ever [p. 819] said
the word racist -
A. When I have been treated in a racist manner.
Q. Now, don’t you admit that you say that a lot?
A. I don’t say it until I’m treated that way.
Q. Isn’t -
A. I have the right to speak my voice.
Q. Isn’t it true that almost every time that you’re
accused of anything you don’t agree with, you use the
race card?
A. No.
Q. It isn’t?
l4a
A. No.
Q. Can you tell me one instance in which you have
been accused of something you didn’t play the race card?
A. I would rather you ask the questions?
Q. Can you tell me one? Tell me one.
A. One instance that I have been accused of some-
thing?
Q. That you did not accuse the other [p. 820] person
of racism —-
A. I haven’t ever been accused of anything crimi-
nally.
Never.
Q. I didn’t say criminally.
Can you tell me one instance at all that someone
disagreed with you vehemently on a subject that you
didn’t claim that their disagreement with you was based
upon race?
Can you tell me one?
A. I hope you don’t deny that there was a civil war
in America.
Q. Can you tell me one?
I’ll just sit here.
One.
A. Yes.
Q. Tell me one.
15a
A. Just now. I mean, you’re saying all these things,
and I’m not accusing you of being a racist.
Q. You just did.
A. No.
MR. ELLIOTT: That was in the article.
[p. 821] BY MR. ROSEN:
Q. Can you think of anyone other than the question
I just asked you?
A. Not offhand.
Q. Now, are you aware of the concept of punitive
damages?
A. Yes, I’m aware.
Q. Read out loud the article.
A. Where?
Q. Continue. Right after it says “ ‘dig deep into his
own pocket so every time he wants to use race card in the
future, he’ll think twice.’ ”
Read the continuing quote.
A. “We accept whatever the jury decides to” -
blank — ” ‘should be’ ” - “ ‘the fee should be,’ ” I suppose.
““They just want him to stop hurting people and they
want their reputations clean. We want punitive damages
that will come out of his personal pocket, not his insur-
ance company,’ Rosen said.”
Q. Now, you understand the concept of punitive
damages is to inflict damages upon somebody so that
16a
they feel and dig deep into their pockets so they don’t do
something again; isn’t [p. 822] that correct?
A.
A.
Or OP
Yes.
And isn’t that what that article is saying?
No.
Isn’t it saying -
It is a separate paragraph.
It is the same quote.
Separate paragraph, though. It is a separate - it
is a broken idea.
Q.
A.
Q.
A.
It doesn’t read the same?
No.
Now -
This is a deliberate, despicable, viper-like strike
at me using race to conjure up the image that I’m out
there saying every time some vigilante Ku Klux Klan
sticks up a burning cross in my face, and if I say, Oh, gee,
these people might be prejudiced, you’re saying, There he
goes, hollering the race card.
That’s exactly what you’re doing.
Q.
A.
Q.
You read the complaint in this case?
Sure, I have.
Do you see anything in the complaint.
* = *
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.