Opinion
CRIMINAL ACTION NO: 00-144 SECTION: "R"(4)
June 14, 2000
ORDER MD REASONS
Before the Court is defendants' Notice of Removal pursuant to 28 U.S.C. § 1443 and the All Writs Act, 28 U.S.C. § 1651. Defendants seek to remove a state court criminal case pending against them in the Twenty Third Judicial District Court in St. James Parish, Louisiana or to enjoin its prosecution. For the following reasons, the Court orders this case remanded to state court and denies the request for injunctive relief.
I. BACKGROUND
Defendants here are plaintiffs in a civil action brought pursuant to 42 U.S.C. § 1983 in another section of this court. See Concerned Citizens Committee of St. James Parish, at al. v. Willy J. Martin, et al., Civ. Action No. 99-3034 "N". Defendants filed the Concerned Citizens Committee suit in section "N" of this court on October 5, 1999, seeking injunctive and declaratory relief under 42 U.S.C. § 1983 for alleged constitutional violations arising out of protests against racial discrimination held outside of St. James High School in August 1999. On October 13, 1999, the parties entered into a compromise order, signed by the district court judge, which limited the nature of protests outside of St. James High School. On April 27, 2000, the court entered a 60-day order dismissing the case without prejudice after the parties reached a settlement.
The state court criminal case charges defendants with interfering with the staff of an educational institution in violation of La. Rev. Stat. Ann. § 14:328. Defendants were arrested on October 1, 1999 and arraigned on April 17, 2000.
On November 15, 1999, defendants filed a nearly identical notice of removal of the same pending state court criminal action they seek to remove here. The prior notice asserted a right to removal only under 28 U.S.C. § 1443, however. On November 17, 1999, United States District Court Judge Martin L.C. Feldman held that defendants failed to show that their state court criminal prosecution has anything to do with enforcing their specific civil rights stated in terms of racial equality, as required in order to remove a criminal prosecution from state court under section 1443. (See Minute Entry Civ. Action No. 99-376 dated Nov. 17, 1999.)
II. DISCUSSION
28 U.S.C. 1446(c) governs the proper procedure when a defendant seeks to remove a criminal prosecution from state court. That section provides as follows: "If it clearly appears on the face of the notice and any exhibits annexed thereto that removal should not be permitted, the court shall make an order for summary remand." 28 U.S.C. § 1446(c)(4) (emphasis added).
A. Removal under 28 U.S.C. 1443(1)
The Fifth Circuit permits a defendant to seek subsequent removals after remand only if the second removal petition presents new and different grounds for removal. See S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492 (5th Cir. 1996) (citing Browning v. Navarro, 743 F.2d 1069, 1079-80 n. 29 5th Cir. 1984)). After reviewing the notice of removal, the Court finds that defendants have presented no new grounds for removing this case under 28 U.S.C. § 1443.
Section 1443(1) entitles a defendant to remove a state prosecution to federal court only if he meets both of the following requirements: (1) that the right allegedly denied is a right arising under a federal law providing for specific civil rights stated in terms of racial equality; and (2) that he is denied or cannot enforce that right in the courts of Louisiana. See Texas v. Gulf Water Benefaction Co., 679 F.2d 85, 86 (5th Cir. 1982) (citing Johnson v. Mississippi, 421 U.S. 213, 219, 95 S.Ct. 1591, 1595 (1975)). As Judge Feldman observed, it is well established that defendants' broad claims that they have been deprived of their rights under the First and Fourteenth Amendments and section 1983 are insufficient to permit removal under section 1443. See City of Greenwood v. Peacock, 384 U.S. 808, 825, 86 S. Ct. 1800 (1966); Smith v. Winter, 717 F.2d 191 (5th Cir. 1983) (citing Georgia v. Rachel, 384 U.S. 780, 792, 86 S.Ct. 1783, 1790 (1966); Louisiana v. Rouselle, 418 F.2d 873, 874 (5th Cir. 1969)). The only factual differences in this notice of removal and that reviewed by Judge Feldman concern the procedural posture of the state court criminal case. The nature of defendants' claims have not changed. Defendants have thus not provided any new grounds for removal under section 1443.
B. All Writs Act, 28 U.S.C. S 1651
Defendants also argue that this Court has jurisdiction to remove the state court criminal action pending against them pursuant to the All Writs Act, 28 U.S.C. § 1651. The All Writs Act authorizes federal courts to "issue all writs necessary or appropriate in aid of their . . . respective jurisdiction." 28 U.S.C. § 1651. The All Writs Act is not an independent source of federal court jurisdiction. See In re Fraser, 75 F. Supp.2d 572, 578 (E.D. Tex. 1999) (citing Westinghouse Elec. Corp. v. Newman, 992 F.2d 932, 937 (9th Cir. 1993). It merely allows federal courts "to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained." United States v. New York Telephone Co., 434 U.S. 159, 172, 98 S.Ct. 364, 372 (1977) (citing Harris v. Nelson, 394 U.S. 286, 299 (1969)).
The Fifth Circuit has noted that the "extraordinary power conferred by the All Writs Act . . . is firmly circumscribed, its scope depending on the nature of the case before the court and the legitimacy of the ends sought to be achieved through the exercise of the power." ITT Community Development Corp. v. Barton, 569 F.2d 1351, 1358-59 (5th Cir. 1978); accord Williams v. McKeithen, 939 F.2d 1100, 1104 (5th Cir. 1991). A court may not rely on the Act to enjoin conduct that is "not shown to be detrimental to the court's jurisdiction," but rather any order under the Act must be "directed at conduct which, left unchecked, would have had the practical effect of diminishing the court's power to bring the litigation to its natural conclusion." Id. at 1359. The "'fact that a party may be better able to effectuate its rights or duties if a writ is issued never has been, and under the language of the [All Writs Act] cannot be, a sufficient basis for issuance of the writ.'" Id. at 1360 (quoting New York Telephone Co., 434 U.S. at 189, 98 S. Ct. at 381).
Although the Fifth Circuit has not addressed the issue, a number of other circuit courts have held that a district court may, in exceptional circumstances, use its authority under the Act to remove an otherwise unremovable state court action to protect its jurisdiction over and to enforce orders issued in an action in which original jurisdiction exists. See Davis v. Glanton, 107 F.3d 1044, 1047 n. 4 (3d Cir.), cert. denied, 118 S. Ct. 159 (1997); Matter of VMS Securities Litigation, 103 F.3d 1317 (7th Cir. 1996); Sable v. General Motors Corp., 90 F.3d 171, 175 (6th Cir. 1996); In re Agent Orange Product Liability Litig., 996 F.2d 1425, 1431 (2d Cir. 1993); Nowling v. Aero Servs. Int'l, Inc., 734 F. Supp. 733, 738 (E.D. La. 1990). But see Hillman v. Webley, 115 F.3d 1461, 1469 (10th Cir. 1997) (holding All Writs Act does not provide independent basis for district court to acquire jurisdiction over separate case pending in state court). However, the act is not a "jurisdictional blank check which [federal courts] may use whenever they deem it advisable." Agent Orange, 996 F.2d at 1431.
Defendants argue that this Court should remove the state criminal proceeding, or alternatively enjoin it, in order to effectuate and prevent the frustration of court orders and the court-sanctioned consent agreement between the parties in Concerned Citizens Committee. As noted supra, the only order issued by a federal court in the exercise of a previously and properly acquired jurisdiction was a compromise agreement in which the parties jointly agreed to guidelines concerning future protesting by the Concerned Citizens Committee outside of the St. James High School. The consent order was not based on any judicially-made findings of fact or conclusions of law. The consent order set forth guidelines restricting the committee's protesting to certain locations, limiting the number of protestors, and providing that school activities shall not be subject to interference. The order did not purport to vindicate defendants' past conduct. Nor do the guidelines outlined in the consent order conflict with La. Rev. Stat. Ann. § 14:328, which makes it unlawful to willfully obstruct or impede any staff member of a state high schools in the lawful pursuit of his educational activities. Moreover, there is absolutely no indication in the record that the settlement agreement in the civil action intended to restrict the preexisting state criminal prosecution. Accordingly, and after reviewing the cases permitting removal under the All Writs Act, the Court finds that defendants have not demonstrated the extraordinary circumstances that would justify removal or injunctive relief under the Act. The Court does not see how remanding this matter to state court, and allowing the state criminal prosecution to proceed, will "frustrate the implementation of a court order or the proper administration of justice." New York Tel., 434 U.S. at 174, 98 S.Ct. at 373. There is no removal jurisdiction in this case.
III. CONCLUSION
For the foregoing reasons, this matter is hereby REMANDED to Twenty-Third Judicial District Court for the Parish of St. James, Louisiana and the request for injunctive relief under the All Writs Act is denied.