any attempt by an individual state to control a national
convention of a party will necessarily fail due to the limits of
its own jurisdiction.
The Texas White Primary Cases — Nixon v. Condon, 286 U.S. 73,
52 S.Ct. 484, 76 L.Ed. 984 (1932); Smith v. Allwright,
321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944); Terry v. Adams,
345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953) — all involved federal
courts asserting federal question jurisdiction over the state
primary elections of local political parties. However, the
complaints in those cases alleged racial discrimination in
violation of the 14th and 15th Amendments which provided the
federal jurisdiction. The Reapportionment cases, Baker v. Carr,
369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) together with
its predecessors and progeny, all involved allegations in the
complaints of denials of equal protection or due process. No such
allegations as in these two groups of cases are present in the
instant complaint. Nor are there federal statutes which even
tangentially could be applicable to the instant fact pattern. In
addition, neither of the recent constitutional amendments
forbidding the imposition of a poll tax and providing for the 18
year old vote, both of which are applicable to primary elections,
arise in this case by virtue of the complaint.
Accordingly, we find that § 1441 affords no basis for federal
jurisdiction over the instant case for purposes of removal.
II. SECTION 1443
There are two possible bases for removal under this section.
1. Subsection 1443(1). This provision allows for removal of any
civil or criminal action "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. . . ." This has
been construed to mean that removal is allowed under this
subsection only when it can be clearly predicted by operation of
a pervasive and explicit law or pattern that federal rights will
inevitably be denied by the very act of going to trial in the
state court. Greenwood v. Peacock, 384 U.S. 808, 824, 86 S.Ct.
1800, 16 L.Ed.2d 944 (1966). Inasmuch as there has been no
allegation that the defendants cannot raise their constitutional
defenses and claims in the state court, and since it is clear
that no constitutional deprivation will arise by merely defending
the state action, removal is not proper under this subsection.
2. Subsection 1443(2). This provision allows for removal of any
civil or criminal action "for any act under color of authority
derived from any law providing for equal rights. . . ." In order
for removal to be proper under this subsection, the defendants
must have done some act about which they are about to be sued,
that act must have been under color of authority of any federal
law providing for equal rights, and the defendants must have been
federal officers performing their duties under the above
mentioned law. Greenwood v. Peacock, supra. In the instant case,
there is no question that the defendants are being sued for an
act which they have done and currently are doing — the
presentation of a challenge to the uncommitted delegation to the
Credentials Committee. With respect to the second requirement,
defendants argue that it has been fulfilled since they are
enforcing the McGovern Rules which do indeed deal with equal
rights by providing for a more equal representation of the
citizenry within the Democratic Party. Clearly, however, the
McGovern Rules are not federal law, as has been discussed above.
Moreover, the defendants are not federal officers. Their argument
that by enforcing the McGovern Rules they are performing the
essential duties of federal officers and therefore are federal
officers hinges on the characterization of those rules as federal
law. Inasmuch as such a characterization cannot be made, the
defendants cannot be characterized as federal officers. Since the
defendants are not federal officers enforcing
federal law, removal is not proper under § 1443(2).
In brief summary, plaintiff's motion to remand the case to the
Circuit Court of Cook County must be granted since there is no
jurisdictional basis for this federal court to hear it. However,
to say that this controversy in its present posture cannot be
litigated and resolved in the federal court does not, as
previously indicated, imply that it must, will, or can properly
be resolved in the state court. That court faces serious
jurisdictional difficulties as well and, even if those initial
barriers are overcome, it is difficult to imagine any thoughtful
court granting the type of relief requested in the instant case.
An appropriate order consistent with the foregoing will enter.
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