1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-3-1997

Davis v. Glanton

Precedential or Non-Precedential:

Docket 96-1299

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Recommended Citation

"Davis v. Glanton" (1997). 1997 Decisions. Paper 52.

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1

IN THE UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 NO. 96-1299 

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 

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

_______________________________________ 

 On Appeal From the United States District Court 

 For the Eastern District of Pennsylvania 

 (D.C. Civ. No. 96-cv-01800) 

 _________________________________________ 

 Argued: January 30, 1997 

 Before: BECKER, ROTH, Circuit Judges, and 

 BARRY, District Judge.

*

 (Filed March 3, l997) 

ROBERT J. SUGARMAN, ESQUIRE (ARGUED) 

Sugarman & Associates 

7th Floor, Robert Morris Building 

100 North 17th Street 

Philadelphia, PA 19103 

Attorneys for Appellants 

Richard Glanton and Niara Sudarkas

HARDY WILLIAMS, ESQUIRE 

3801 Market Street, Suite 204 

 

 

*

 Honorable Maryanne Trump Barry, United States District 

Judge for the District of New Jersey, sitting by designation. 
2

Philadelphia, PA 19104 

Attorney for Appellant Shirley Jackson

PAUL R. ROSEN, ESQUIRE (ARGUED) 

LARRY R. WOOD, JR., ESQUIRE 

Spector, Gadon & Rosen, P.C. 

1700 Market Street - 29th Floor 

Philadelphia, PA 19103 

Attorneys for Appellees: 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

 __________________________ 

 OPINION OF THE COURT 

 ___________________________ 

BECKER, Circuit Judge. 

 This is an appeal by certain trustees of the Barnes 

Foundation, who are also African-American citizens. It requires 

us to determine whether a state court defamation action filed 

against them by certain commissioners of Lower Merion Township, 

alleging that the Trustees had falsely accused the Commissioners 

of racist official conduct, is removable to federal district 

court pursuant to the civil rights removal statute, 28 U.S.C. § 

1443(1), on the ground that the defamation action represents an 

attempt to retaliate against the Trustees for exercising their 

federally protected right to assert, in a federal lawsuit, that 

they were discriminated against by the Commissioners on racial 

grounds. Although the Trustees present an emotionally appealing 

argument for removal, we conclude that they have failed to 

satisfy the narrow and well-defined requirements for § 1443(1) 
3

removal as explicated in State of Georgia v. Rachel, 384 U.S. 780 

(1966), and City of Greenwood v. Peacock, 384 U.S. 808 (1966). 

We will therefore affirm the order of the district court 

remanding the removed action to the state court from whence it 

came. 

I. Facts & Procedural History 

 The Barnes Foundation is a non-profit Pennsylvania 

corporation located on Latches Lane, Lower Merion Township, 

Montgomery County, Pennsylvania. Its history is well known, and 

for present purposes we need recount only that the late Dr. 

Albert C. Barnes created the Barnes Foundation, by Indenture and 

Agreement dated December 6, 1922, and that the Indenture provides 

that, following the expiration of the terms of the Foundation’s 

Trustees in place at Barnes’ death, four of the five Foundation 

Trustees are to be nominated by Lincoln University, a 

historically African-American institution, with a fifth trustee 

to be named by Girard Bank (now Mellon Bank). By 1990, with the 

death or resignation of a number of former trustees, the 

Foundation’s Board of Trustees became predominantly AfricanAmerican. At the time of the acts complained of, Richard 

Glanton, Niara Sudarkasa, Shirley Jackson, and Charles Frank 

(defendants in the state defamation action) were trustees, and 

all except for Mr. Frank are African-American and appellants 

here.1

 

 

1

The Commissioners filed a voluntary notice of dismissal 

without prejudice of Trustee Frank on June 13, 1996. 
4

 For present purposes, the material elements of this Lower 

Merion Township-Barnes Foundation dispute began on January 18, 

1996, when the Foundation filed an action under 42 U.S.C. § 1983 

and § 1985(3), claiming that the Township, the members of the 

Township Board of Commissioners, and certain of the Foundation’s 

Latches Lane neighbors had conspired to harass, intimidate, 

interfere with, and discriminate against the Foundation.2 The 

federal civil rights complaint alleges that the Township and the 

Commissioners, in concert with the neighbors, imposed parking, 

police, fire, and zoning requirements and regulations in such a 

way as to injure the Foundation and interfere with its use of its 

property, and that they enforced these requirements and 

regulations against the Foundation more aggressively than they 

did against other similarly situated institutions. 

 The gravamen of the Foundation’s federal civil rights action 

is that this adverse treatment was motivated by racial prejudice 

engendered by the fact that (1) the majority of the Foundation’s 

Trustees are African-American; (2) Glanton, the President of the 

Board, is African-American; and (3) the Foundation is controlled 

by a historically African-American university. The complaint 

alleges that the Township and the Commissioners violated the 

 

 

2

The district court, by order dated June 3, 1996, dismissed 

the complaint as to the neighbors on the grounds that, even 

assuming that they had participated in a conspiracy to violate 

the Foundation’s constitutional rights and were motivated by 

invidious racial animus, they enjoyed total immunity under the 

Noerr-Pennington doctrine. See Barnes Foundation v. Township of 

Lower Merion, No. 96-0372. The Trustees do not appeal this 

order. 
5

Foundation’s constitutional rights, and that they should be 

enjoined from continuing such violations. 

 On March 4, 1996, the Commissioners filed a state court 

defamation action in the Court of Common Pleas of Montgomery 

County against Glanton and the other members of the Foundation’s 

Board. The state court defamation action is based upon two sets 

of allegedly defamatory statements: (1) certain statements 

attributed to Glanton in a Philadelphia Inquirer article dated 

November 27, 1995, that the Commissioners had engaged in “thinly 

disguised racism,” and that “[t]here is no way that you cannot 

see racism in the way [the Commissioners] are treating the 

Foundation”; and (2) statements made in the Barnes Foundation’s 

complaint in the federal civil rights action. 

 On March 7, 1996, the Trustees filed a Joint Notice of 

Removal, claiming that federal removal jurisdiction existed 

pursuant to 28 U.S.C. §§ 1441, 1443(1), and 1651.3 The Trustees 

contend that the defamation suit represents an attempt by the 

Commissioners to retaliate against the Trustees for exercising 

their federally protected rights. Indeed, the Trustees assert 

that the very filing of the defamation action violates their 

civil rights, and, at all events, that the Foundation and the 

Trustees will be denied their right to be free from 

 

 

3

On March 7, 1996, the Foundation also amended its complaint 

in the federal civil rights action to allege that the filing of 

the defamation action and the imposition on the Trustees of the 

obligation to defend it were taken to further the alleged 

conspiracy to harass the Foundation in violation of § 1983 and § 

1985(3). The amended complaint also asserts that the institution 

of the suit violates the Foundation’s First Amendment rights. 
6

unconstitutional race discrimination if the Commissioners are 

permitted to proceed in state court. 

 The Commissioners quickly filed a motion to remand, 

contesting all three grounds for removal. The district court 

granted the Commissioners’ motion, determining that removal was 

improper on all of the grounds asserted by the Trustees. 

Addressing the requirements of § 1443(1), the district court held 

that the Trustees have never demonstrated that they would be 

unable “to protect their rights” in state court as required by 

Georgia v. Rachel, 384 U.S. 780 (1966), and City of Greenwood v. 

Peacock, 384 U.S. 808 (1966). The district court also held that 

removal pursuant to § 1441 was improper because the Trustees had 

failed to show that federal law was an essential element of the 

Commissioners’ state court defamation action. In so holding, the 

court ruled that the state action “cannot be viewed as a 

retaliatory measure for bringing the federal claim, but is an 

independent defamation action in its own right.” 

 Finally, the district court found that the state court 

defamation action was not removable under § 1651, better known as 

the All Writs Act, because the Trustees did not meet “their 

threshold burden of demonstrating the ‘extraordinary 

circumstances’ that would justify removal under the Act.” On 

April 3, the Trustees filed a Notice of Appeal from the District 

Court’s order. 

II. Appellate Jurisdiction 
7

 Our power to review a remand order is defined by 28 U.S.C. § 

1447(d), which provides: 

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. 

Section 1447(d) thus expressly authorizes appellate review of 

remand orders in cases that were originally removed to federal 

court under § 1443. However, it follows from the clear text of § 

1447(d) that, insofar as the Trustees’ appeal challenges the 

district court’s rulings under 28 U.S.C. § 1441, we must dismiss 

the appeal for want of appellate jurisdiction. We so held in 

Gittman v. Gittman, 451 F.2d 155, 156 (3d Cir. 1971) (recognizing 

the non-appealability of decisions on removal, even when a 

removal decision pursuant to § 1443 is appealable in the same 

case). We will accordingly dismiss the appeal insofar as it is 

predicated on § 1441.4

 

 

4

The Trustees also invoke our mandamus jurisdiction under 

the All Writs Act, 28 U.S.C. § 1651. A district court, in 

exceptional circumstances, may use its authority under the Act to 

remove an otherwise unremovable state court action to “prevent 

the frustration of orders it has previously issued in its 

exercise of jurisdiction otherwise obtained.” United States v. 

New York Tel. Co., 434 U.S. 159, 172 (1977). Here, however, the 

Trustees have not demonstrated how removal will support 

jurisdiction that is already in existence. Nor have they 

identified the “extraordinary circumstances” necessary to justify 

removal under the Act. See In re Agent Orange Product Liability 

Litig., 996 F.2d 1425, 1431 (2d Cir. 1993) (The Act is not a 

“jurisdictional blank check which [federal courts] may use 

whenever they deem it advisable.”). Accordingly neither will we 

exercise jurisdiction under § 1651. 
8

III. Removal Under 28 U.S.C. § 1443 

A. Introduction: State of Georgia v. Rachel and City of 

Greenwood v. Peacock

 The Civil Rights Removal Statute, 28 U.S.C. § 1443, 

authorizes the removal of a state law action: 

[a]gainst 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. 

While the language of this section is opaque, the jurisprudence 

has made clear that Congress has crafted only a narrow exception 

to the rule that a state court action may be removed to a federal 

district court only if federal jurisdiction is evident on the 

face of the plaintiff’s well-pleaded complaint (which, of course, 

it is not in this state defamation action). 

 In State of Georgia v. Rachel, 384 U.S. 780 (1966), the 

Supreme Court articulated the precise circumstances required to 

sustain removal under § 1443(1), clarifying that removal requires 

satisfaction of a two-pronged test: a state court defendant must 

demonstrate both (1) that he is being deprived of rights 

guaranteed by a federal law “providing for ... equal civil 

rights”; and (2) that he is “‘denied or cannot enforce’ that 

right in the courts” of the state. Id. at 788. In Rachel, 

twenty African-American individuals were prosecuted in state 

court for criminal trespass violations as a result of their 

attempts to obtain service at a privately owned restaurant in 

Atlanta, Georgia. In contrast, federal law required such a 

restaurant to serve persons of all races, thus immunizing the 
9

conduct for which they were being prosecuted. The arrested 

individuals sought to remove the state court prosecutions to 

federal court on the basis of 28 U.S.C. § 1443(1). In construing 

the first requirement, the Court determined that “the phrase ‘any 

law providing for ... equal civil rights’ must be construed to 

mean any law providing for specific civil rights stated in terms 

of racial equality.” Id. at 792. The Court concluded that the 

statute invoked by the removing defendants, the Civil Rights Act 

of 1964, was a statute providing for equal civil rights. 

 The Court then addressed the second statutory requirement -- 

that the state court defendant be “denied or cannot enforce” his 

or her rights in state court. The Court noted that, in order for 

pre-trial removal to be sustained, denial of rights traditionally 

had been required to be so manifest in a formal expression of 

state law that “it could be taken as suitable indication that all 

courts in that State would disregard the federal right of 

equality with which the state enactment was precisely in 

conflict.” Id. at 804 (citing Strauder v. West Virginia, 100 U.S. 

303 (1880), and Commonwealth of Virginia v. Rives, 100 U.S. 313 

(1880)). The Court explained that, given the particular 

circumstances of that case, a firm prediction that a defendant 

would be denied federal rights in the state court might be made 

even in the absence of a discriminatory state enactment. 

 In creating a narrow exception to the traditional “denied or 

cannot enforce” interpretation, the Rachel Court recognized that 

§ 203 of the Civil Rights Act of 1964 specifically prohibited any 

“punishment or attempts to punish” any person for exercising 
10

rights secured by other sections of the Act. Id. In fact, the 

Court noted that in Hamm v. City of Rock Hill, 379 U.S. 306, 311 

(1964), it had interpreted § 203 of the Civil Rights Act of 1964 

to prohibit “on its face ... prosecution of any person for 

seeking service in a covered establishment, because of his race 

or color.” Rachel, 384 U.S. at 785. Based on the prohibition 

against prosecution contained in § 203, the Court concluded that 

“nonforcible attempts to gain admittance to or remain in 

establishments covered by the Act, are immunized from 

prosecution.” Id. Accordingly, the Court opined that “in the 

narrow circumstances of this case, any proceedings in the courts 

of the States will constitute a denial of the rights conferred by 

the Civil Rights Act of 1964 as construed in Hamm.” Id. at 804 

(emphasis added). 

 In City of Greenwood v. Peacock, 384 U.S. 808 (1966), 

decided on the same day as Rachel, the Court highlighted the 

limited nature of the Rachel exception. In Peacock, twenty-nine 

people were prosecuted as a result of First Amendment petitioning 

activity. The Mississippi state court defendants sought removal 

under § 1443(1). The Peacock Court began its analysis of § 

1443(1) removability by noting the unique circumstances present 

in Rachel: 

the basic difference between this case and Rachel is thus 

immediately apparent. In Rachel, the defendants relied 

on the specific provisions of a pre-emptive federal 

civil rights law -- §§ 201(a) and 203(c) of the Civil 

Rights Act of 1964 ... as construed in Hamm v. City of 

Rock Hill, supra -- that ... specifically and uniquely 

conferred upon the defendants an absolute right to 

“violate” the explicit terms of the state criminal 

trespass law with ... impunity. 
11

 

Id. at 826. Accordingly, the Court explained that two 

significant differences existed between Peacock and Rachel. 

First, “no federal law confers an absolute right on private 

citizens ... to obstruct a public street, to contribute to the 

delinquency of a minor, to drive an automobile without a license, 

or to bite a policeman”; and, second, “no federal law confers 

immunity from state prosecution on such charges.” Id. at 826-27. 

 Peacock should not be read to narrow the holding of Rachel. 

 Instead, the Court merely reiterated the limited and unique 

circumstances under which removability could be sustained 

regardless of the presence of a facially discriminatory state 

statute. Thus, Peacock reaffirms that in the vast majority of 

cases: 

[i]t is not enough to support removal under § 1443(1) to 

allege or show that the defendant’s federal equal civil 

rights have been illegally and corruptly denied by state 

administrative officials in advance of trial, that the 

charges against the defendant are false, or that the 

defendant is unable to obtain a fair trial in a particular 

state court. 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 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. 

 The civil rights removal statute does not require and does 

not permit the judges of the federal courts to put their 

brethren of the state judiciary on trial. Under § 1443(1), 

the vindication of the defendant’s federal rights is left to 

the state courts except in the rare situations where it can 

be clearly predicted by reason of the operation of a 

pervasive and explicit state or federal law that those 

rights will inevitably be denied by the very act of bringing 

the defendant to trial in the state court. 

Id. at 827-28. As a result, the Court in Peacock refused to 

expand Rachel’s interpretation of § 1443(1), holding that its 
12

earlier “decisions were correct in their basic conclusion that 

the provisions of § 1443(1) do not operate to work a wholesale 

dislocation of the historic relationship between the state and 

the federal courts in the administration of the . . . law.” Id.

at 831. 

 

B. The First Prong of Georgia v. Rachel

 The Trustees assert that their case satisfies both 

requirements for § 1443(1) removability as set forth in Rachel

and interpreted in Peacock. While they invoke 42 U.S.C. 

§ 1985(3) with respect to both prongs, in terms of the first 

prong, they contend that the filing of the state court defamation 

action was an act in furtherance of a racially motivated 

conspiracy to deny them their equal civil rights.5 The Trustees 

point out that § 1985(3) was designed to redress injuries that 

 

 

5

42 U.S.C. § 1985(3) provides: 

If two or more persons in any State or Territory conspire 

... for the purpose of depriving, either directly or 

indirectly, any person or class of persons of the equal 

protection of the laws, or the equal privileges and 

immunities under the laws; or for the purpose of preventing 

or hindering the constituted authorities of any State or 

Territory from giving or securing to all persons within such 

State or Territory the equal protection of the laws; or if 

two or more persons conspire to prevent by force, 

intimidation, or threat, any Citizen who is lawfully 

entitled to vote, ...; in any case of conspiracy set forth 

in this section, if one or more persons engaged therein do, 

or cause to be done, any act in furtherance of the object of 

such conspiracy, whereby another is injured in his person or 

property, ... the party so injured or deprived may have an 

action for the recovery of damages, occasioned by such 

injury or deprivation, against any one or more of the 

conspirators. 

 
13

result from a conspiracy motivated by race-based animus, and 

submit, therefore, that they have invoked the protection of an 

“equal civil rights” statute as required by the Court in Rachel. 

 

 Intuitively, § 1985 would seem to constitute an “equal civil 

rights” statute. It surely provides a cause of action for one 

who has been the victim of conspiratorial racial discrimination, 

and hence denied the “equal protection of the laws.” 

Furthermore, its origins rest in the Klu Klux Klan Act of 1871, 

an Act passed exclusively to redress civil rights violations 

motivated by racial prejudice. See Griffin v. Breckenridge, 403 

U.S. 88, 98 (1971) (Ku Klux Klan Act of 1871 “is the parent of § 

1985(3)”). 

 It is not clear, however, that § 1985(3) satisfies the 

technical nature of the Court’s jurisprudence in this area. In 

fact, Rachel and Peacock suggest that a state court defendant 

must invoke a statute that expressly provides for equal rights 

stated specifically in terms of racial equality. Peacock, 384 

U.S. at 828. The one circuit to have considered § 1985(3) in the 

context of § 1443(1) removal affirmed the remand order of the 

district court, and stated, without exposition, that the district 

court had “properly followed Rachel.” Doe v. Berry, 967 F.2d 

1255, 1256 (8th Cir. 1992). In contrast, courts that have 

granted removal under § 1443(1) addressed claims brought under 

civil rights statutes that specifically protected civil rights 

based on racial equality. See Conrad v. Robinson, 871 F.2d 612, 

615 (6th Cir. 1989) (holding that the first prong was satisfied 
14

where defendant claimed protection, under 42 U.S.C. § 2000e-3, 

from retaliation for engaging in activity protected by 42 U.S.C. 

§ 2000e-2(c), which forbids limiting union membership on account 

of “race, color, religion, sex, or national origin”); Sofarelli 

v. Pinellas County, 931 F.2d 718, 721 (11th Cir. 1991) (first 

prong satisfied where defendant asserted protection under the 

Fair Housing Act, which prohibits discrimination in housing “on 

the basis of race”). 

 Even if § 1985(3) is deemed to protect specifically against 

race-based discrimination as the Rachel Court required, the 

Commissioners contend that the Trustees’ claim must falter on an 

altogether different ground. They submit that, in actuality, the 

Trustees are using the vehicle of a § 1985 claim to protect their 

First Amendment rights. That is not an implausible contention, 

and, were it to be the case, the Trustees’ removal action would 

be improper, for the Supreme Court has held that “the First 

Amendment rights of free expression ... are not rights arising 

under a law providing for ‘equal civil rights’ within the meaning 

of § 1443(1).” Peacock, 384 U.S. at 825. However, more than 

asserting that the filing of the state defamation action violates 

their First Amendment rights, the Trustees contend that the 

Commissioners filed the defamation action in direct retaliation 

for the filing of a federal civil rights action alleging racial 

discrimination in violation of federal law. 

 The status of § 1985(3) as an “equal civil rights” statute 

is thus unclear, with strong arguments on both sides in terms of 

the jurisprudence. Fortunately, however, we need not reach this 
15

close and difficult issue because we conclude, for reasons 

described herein, that the Trustees have failed to satisfy the 

second Rachel prong. 

C. The Second Prong of Georgia v. Rachel

 In order to sustain removability under § 1443(1), a 

defendant must also demonstrate that he is “denied or cannot 

enforce” his specified federal rights in the state courts. 

Rachel, 384 U.S. at 788. Although traditionally the denial had 

to be manifest in a “formal expression of state law,” a defendant 

can now sustain pre-trial removal where a federal civil rights 

statute “[o]n its face . . . prohibits prosecution of any person” 

seeking to exercise that civil right. Id. at 804 (citing Hamm, 

379 U.S. at 311). Thus, removal is available where the state 

court defendant’s federal civil rights would “inevitably be 

denied by the very act” of being brought to trial in state court. 

 Peacock, 384 U.S. at 828. In creating such a narrow range of 

cases that are susceptible to removal, the Supreme Court sought 

to ensure that “removal would be available only in cases where 

the predicted denial [of equal civil rights] appeared with 

relative clarity prior to trial.” Rachel, 384 U.S. at 803. For 

if the denial was less clear, the federal courts would become 

“involved in the unseemly process of prejudging their brethren of 

the state courts.” Id. 

 The Trustees assert that the mere pendency of the state 

court defamation action violates their federal civil rights as 

prescribed in § 1985(3). They emphasize that the Commissioners 
16

filed their defamation action soon after the Trustees filed the 

federal civil rights action, and as such the state action can be 

viewed only as a means to intimidate and retaliate against the 

Trustees for pursuing their federal action. They contend that § 

1985(3), like the sections of the Civil Rights Act of 1964 at 

issue in Rachel, prohibits actions to intimidate or punish 

persons for exercising civil rights protected by § 1985(3). 

Furthermore, they argue that attempts to punish, even if 

unsuccessful, deny and violate the very rights provided by that 

provision. 

 A careful reading of § 1985(3) makes clear, however, that 

the provision grants no such protection. 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. Furthermore, the Trustees do not attempt 

to demonstrate, 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. 

 The Trustees nonetheless claim that, just as Hamm v. City of 

Rock Hill immunized state court defendants from prosecution for 

trespass, Griffin v. Breckenridge, 403 U.S. 88 (1971), held that 

§ 1985(3) immunizes the Trustees from a defamation action. They 

submit that the Court in Griffin explained that § 1985(3) 

“protects against ‘intimidation,’ which must include threats of 

civil and criminal prosecution against African-Americans 

exercising First Amendment rights,” and, therefore, that § 

1985(3) protects the Trustees from a defamation action. But 
17

Griffin cannot be read to extend protection to the Trustees for 

several reasons. First, the Court in Hamm relied on language 

that expressly protected against prosecution, in that § 203 of 

the Civil Rights Act provided that “[n]o person shall ... punish 

or attempt to punish any person” for exercising any right 

protected under the Act. Hamm, 379 U.S. at 311. No such 

language exists in § 1985(3). In fact, the only place in this 

statute which specifically refers to “intimidation” is related to 

the right to vote. Thus, a perusal of § 1985(3) makes clear that 

it does not provide the Trustees with a right to engage in 

tortious, defamatory conduct. Second, the Trustees misread 

Griffin, for nowhere in it does the Court intimate that § 1985(3) 

prohibits the prosecution of a state court defamation action. 

 In sum, it is clear that nothing in § 1985(3) or in Griffin

immunizes the Trustees from civil state court defamation actions, 

and that they fail to fit within the limited exception set forth 

in Rachel. In fact, the circumstances of the Trustees’ case are 

closer in appearance to Peacock than to Rachel. The distinction 

between these two types of cases is clear: 

The line between Rachel and Peacock is that between 

“prosecutions in which the conduct necessary to 

constitute the state offense is specifically protected 

by a federal equal rights statute under the 

circumstances alleged by the petitioner, and 

prosecutions where the only grounds for removal is that 

the charge is false and motivated by a desire to 

discourage the petitioner from exercising or to 

penalize him for having exercised a federal right.” 

Johnson v. Mississippi, 421 U.S. 213, 234 (1975) (Marshall, J., 

dissenting) (citing New York v. Davis, 411 F.2d 750 (2d Cir. 

1969)). Even if the Trustees are correct in their assertions 
18

concerning the Commissioners’ retaliatory motivation, their case 

clearly falls into the latter category, and as such, outside the 

narrow exception identified in Rachel. Moreover, removal is not 

warranted by the concern, simpliciter, that a denial of equal 

rights may take place and go uncorrected at trial. Rachel, 384 

U.S. at 800. An analysis of that sort would require this Court 

to second-guess the impartiality of our state court brethren, and 

this outcome is exactly what the court in Rachel and Peacock

counseled against. 

 None of the cases on which the Trustees rely persuades us to 

hold otherwise. See Sofarelli, 931 F.2d 718; Whatley v. City of 

Vidalia, 399 F.2d 521 (5th Cir. 1968); Rogers v. Rucker, 835 

F.Supp. 1410 (N.D. Ga. 1993); Northside Realty Assoc., Inc. v. 

Chapman, 411 F. Supp. 1195 (N.D. Ga 1976). Whatley is not 

apposite because the removing defendants in that case 

specifically invoked the provisions of the Voting Rights Act of 

1965, which provides that “[n]o 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)). Thus, because Congress had specifically immunized the 

action in question, the state court defendants could not be 

prosecuted for encouraging individuals to vote. 

 The cases of Sofarelli, Rogers, and Northside Realty are 

similarly unhelpful. In those cases, the removing state court 

defendants invoked a provision of the Fair Housing Act of 1968 

which provides that no person shall “coerce, intimidate, 

threaten, or interfere with any other person ... on account of 
19

his having aided or encouraged any other person in the exercise 

or enjoyment of any right granted” by the Fair Housing Act. 

Northside Realty, 411 F. Supp. at 1198 (citing 42 U.S.C. § 3617). 

 Thus, no person who had encouraged another to take advantage of 

the Fair Housing Act could be prosecuted, and the filing of the 

suit itself violated the removing defendants’ civil rights. As 

previously discussed, the Trustees cannot avail themselves of 

such a provision, for § 1985(3) does not immunize them from a 

civil defamation suit. 

 In addition, the Trustees cannot derive support from Conrad 

v. Robinson, 871 F.2d 612 (6th Cir. 1989). In that case, the 

removing defendant Robinson filed a Title VII action against 

Conrad, and a newspaper article was subsequently published that 

discussed the pending case. Conrad, based on the statements in 

the newspaper article and in Robinson’s complaint, brought a 

libel action against him. In upholding § 1443(1) removal, the 

Sixth Circuit noted that the “only statements made by Robinson” 

which Conrad claimed were libelous “related to Robinson’s [preexisting] federal court suit.” As a result, the Sixth Circuit 

opined that the “connection between Robinson’s speech and this 

protected activity [the filing of the suit] is very close. ... 

Had Robinson’s comments in the Plain Dealer been unrelated to his 

pre-existing federal court case against [the union], but were 

just general allegations that Conrad discriminated on the basis 

of race, the result might be very different.” Id. at 616. 

 We need not pass on whether we will follow Conrad because 

the question addressed by the Sixth Circuit is not the same as 
20

the one we now face. In Conrad, the removing defendant alleged 

that the state court prosecution was not permitted because Title 

VII prohibited any form of retaliation against an employee for 

having filed charges of discrimination in employment. Id. at 615 

(citing 42 U.S.C. § 2000e-3). Title VII contains an explicit 

proscription against discrimination against any employee because 

“he has opposed any practice made an unlawful employment practice 

by this subchapter, or because he has made a charge, testified, 

assisted, or participated in any manner in an investigation, 

proceeding, or hearing under this subchapter.” 42 U.S.C. § 

2000e-3(a). The Conrad court determined that the filing of the 

defamation suit was in retaliation for the filing of an action 

under Title VII. In the present case, the Trustees have not 

cited to a specific federal law that prohibits retaliation 

against, or provides immunity for, their allegedly defamatory 

conduct. 

 We are not insensitive to the point so effectively made by 

the Trustees’ able counsel that the events that form the basis of 

the state court defamation action stem from the same set of facts 

as those underlying the federal civil rights action, and that, 

since allegations of racial bias suffuse the litigation, which is 

anchored in federal court, the defamation action too must be 

heard there in order to assure that civil rights are not 

compromised. But this view ignores the rigors of federalism, and 

the technical precepts of governing by dint of which the 

principles of federalism are translated into reality. 

IV. Conclusion 
21

 The second prong of Georgia v. Rachel has not been met, just 

as the district court concluded; therefore, the order of the 

district court remanding this case to the Court of Common Pleas 

of Montgomery County (PA) will be affirmed. 

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