Opinion
Nos. 78-1359, 78-1360 and 78-1401.
Submitted December 7, 1978.
Decided December 12, 1978.
Raymond Forbes and Neva Forbes, and James K. Lehman, pro se.
Paul L. Douglas, Atty. Gen., and Patrick T. O'Brien, Asst. Atty. Gen., Lincoln, Neb., filed brief for appellee.
Appeal from the United States District Court for the District of Nebraska.
Before LAY, BRIGHT and ROSS, Circuit Judges.
The three defendants in these cases were charged with various income tax offenses by the State of Nebraska. Relying upon 28 U.S.C. § 1443 each filed a petition for removal of the prosecutions to federal court. Defendants alleged their arrest warrants were not supported by probable cause and that they were unable to enforce in state court "equal protection of [their] rights at law to plead by proxy" and to assistance of counsel.
Section 1443 reads:
Any of the following civil actions or criminal prosecutions, commenced in a State court 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:
(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;
(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.
The district court granted the State of Nebraska's motion to remand the cases to state court. The district court concluded that 28 U.S.C. § 1443 is applicable only to cases involving racial inequality and that defendants made no such assertions. We agree. See Milligan v. Milligan, 484 F.2d 446, 447 (8th Cir. 1973).
Under 28 U.S.C. § 1447(d):
An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise.
We find the appeal frivolous; the appeal is dismissed for lack of jurisdiction.