Civil Rights Removal: A SCOTUS Petition for Writ of Certiorari to the Eleventh Circuit Court of Appeals


Readers of this blog know of my long-standing fraternal affection for and ideological and spiritual collegiality with Dr. Kathy Ann Garcia-Lawson of Palm Beach Gardens, Florida 33410.  Kathy suffered terribly this year when after 5 years of valiant and courageous resistance, she was at last unable to prevent the entry of a devastating (and for many reasons completely illegal and improper) final judgment of dissolution of marriage on April 29, 2010.   In this Order, Judge Richard L. Oftedal sought to criticize and punish Kathy for standing up to the system and objecting to it.  Kathy’s Final Judgment Oftedal 4-29-2010.  People like Judge Oftedal really dislike people like Kathy (and me) who stand in the way of the fully perfected implementation of the “Brave New World” Envisioned by Aldous Huxley in 1930 and largely incorporated as the “New World Order” being born before our very eyes.

Whether, like Kathy and I are, you are horrified by or quite entranced by the fluidity, instability, and impermanence of human relationships, human rights, and the complete and utter corruption of the institutions of government entrusted to protect and promote both, it is a reality that the most sacred of all contracts, the contract of marriage, into which most people would ever dream of entering is guaranteed to be breachable by the government with little or no “per se” penalty.  If there is an estate, much of it will be confiscated by the lawyers, and the rest of it will be divided and slaughtered like Solomon’s baby (if the true mother had not intervened—because in the modern scenario the mother may well WANT the baby to die….that, too, is a constant background feature of modern life—the abortion meat-grinder).

What emerged as a particularly important issue in Kathy’s case, however, was at best tangentially related to the institution of marriage.  That issue was: does any judicial procedure whose outcome is absolutely assured or guaranteed, even as to the one single repetitive but common issue uniting all such procedures, qualify as a fair procedure?  Specifically, since divorce is not expressly and overtly guaranteed by law: does a judicial process which grants it automatically as if it were expressly and overtly guaranteed, as a result of an overwhelming state-wide custom, practice, or policy having the force and effect of law, violate equal protection of the law?  The classes of persons involved are determined only at the time of the initiation of judicial proceedings: petitioners for dissolution must always win their petition for dissolution.  Respondents (like Kathy) to a petition for dissolution must always lose.

As it happens, there is at least one Supreme Court case which seems to say that automatic resolution in favor of one party, any outcome determinative law or custom having the force of law, is unconstitutional.  That case is Greenwood v. Peacock (1966).  Greenwood v Peacock 1966

I worked with Kathy for a long time on trying to get the U.S. District Court for the Southern District of Florida to accept Kathy’s removal of her dissolution proceedings on Civil Rights Grounds pursuant to 28 U.S.C. Section 1443(1). We sought reconsideration of the Order of Remand pursuant to the unique provisions of 28 U.S.C. Section 1447(d). April 13 2010 KAGAL Rule 59(e) Motion for REVOCATION OF REMAND.doc- Kathy’s draft Judge Kenneth A. Marra would not accept it, although he did finally acknowledge that Civil Rights Removal was an express congressional exception to the “Well-Pled Complaint” rule that the grounds for removal must plainly appear on the face of any complaint for the case to be removable.  Document 9 Denying Rule 59(e) KAM KAGL

The key issue in Civil Rights Removal is a judicially formulated interpretation, functioning as a custom, practice, or policy having the force and effect of law, which prevents most courts from allowing removal under 28 U.S.C. Section 1443(1) is that it is an affirmative action program: available to minorities only, and available to them only where specifically anti-minority (racially oppressive) state legislation is specifically overridden by affirmative federal legislation. Needless to say, the number of cases fitting this particular paradigm can be counted, well, on the thumb and forefinger of one hand, because that is precisely the number of civil rights removals the Supreme Court has ever allowed to stand.  Rachel v Georgia 1966 Rachel held that where a specific Federal statute (the Civil Rights Act of 1964) guaranteed equal access to restaurants for persons of all races specifically overrode Georgia “Jim Crow” law mandating segregation of the races, removal of Georgia state prosecutions for trespass against black diners would be permitted under 28 U.S.C. Section 1443(1).

What the judicial policy of affirmative action means is that what SHOULD be a powerful tool for correcting abuses in state courts is all but useless.  The language of 28 USC 1443 as enacted by Congress neither mentions race nor color nor any aspect of black-white minority-majority tensions in America, but the Supreme Court has construed the statute so as to mean absolutely nothing to anyone for going on 44 years now.

I suggested to Kathy and Kathy agreed that the Supreme Court’s construction of Civil Rights Removal is nothing but a blatant affirmative action program, a positive form of racial discrimination in favor of a racial minority or racial minorities generally which cannot pass the “Strict Scrutiny” test formulated for all equal protections and fundamental rights issues by the Supreme Court in the late 1970s and consistently applied ever since.  Quite simply: rendering 28 U.S.C. Section 1443(1) nugatory by imposing a racial gloss on racially neutral language is neither the simplest nor most narrowly tailored route to achieving or maintaining any compelling governmental goal or purpose.  In fact, no governmental purpose (aside from limiting the number of cases removed from state to federal court—hardly a “compelling” governmental purpose in any sense of the term) has ever even been mentioned.

So, following Marra’s orders, the Eleventh Circuit Court of Appeals ignored Kathy’s appeal and summarily affirmed Marra’s Order of Remand, without even MENTIONING the question of strict scrutiny for all race-based schemes even those called “benign.”  10-12369 Lawson v Lawson 201012369 10-06-2010

I think the most amazing aspect of the Eleventh Circuit’s Order was its complete refusal to address our strict scrutiny attack on the Judicial Policy of Implementing or Constructing the BROAD, ALL-INCLUSIVE language of 28 U.S.C. Section 1443 as an extremely narrow racial affirmative action program which really serves no one, black, white, yellow, brown, red, or completely indeterminate.   The normal Supreme Court rule is that courts must give full force and effect to EVERY WORD of any congressionally enacted statute.  Here, completely reversing that norm, the Supreme Court ruled that courts must not give effect to any words in the statute at all, but only to the Supreme Court’s gloss on the statute.  In essence, what the Supreme Court admitted in its 28 USC 1443 jurisprudence was this: the Civil Rights movement and reform of the 1950s and 1960s was really great for keeping African-Americans out of the clutches of communist infiltrators in the United States, who had gained so much of a foothold in the Black community (north and south) during the 1920s, 1930s, and 1940s, but once we had obviously won the Cold War, it was perfectly reasonable to forget about Civil Rights for any other segment of the population because, well, if Federal Courts had to police the several State’s compliance with equal protection and due process, two terribly undesirable things would happen: (1) Federal Judges would have to work really hard, because lots of cases would be removed from state court, and (2) Civil Rights might actually be upheld as applying to all people, regardless of race, creed, or color, and to allow everyone, even white people, to assert civil rights would just, really, radically, and perhaps definitively limit the power of government—and the Warren and Burger Courts certainly had NO interest in limiting the power of the Central Government (or, really, any other government for that matter—the Rehnquist and Roberts Courts really have not been significantly better—Justice Scalia has always amazed me for his jurisprudence of, “a democratically elected legislature cannot enact an unconstitutional statute unless I really don’t like it.”

So, to complete this little essay, I offer you now Kathy’s SCOTUS Petition for Writ of Certiorari to the Eleventh Circuit.  01-04-11 Petition for Writ of Certiorari Final CRR-KAGL This is a single issue petition focusing on the scope of Civil Rights Removal and the question of whether the original Congressional language adopted by the Democratically elected legislature OR the judicial construction, gloss, and interpretation imposed by the Supreme Court in 1966-1975 should prevail despite the fact that the Supreme Court in so doing designated Civil Rights Removal as a positively discriminating affirmative action program which is irrational in that it benefits almost nobody and renders Congress’ statutory language completely nugatory.

I for my part am interested in Civil Rights Removal because of my involvement in another field of American law whose outcome is almost as uniformly determined as dissolution of marriage/divorce cases: namely, judicial foreclosure and eviction and judicial eviction following non-judicial foreclosure.   Many homeowners have attempted to use Civil Rights Removal only to be told that if the state statutes apply equally to blacks, whites, hispanics, and all other racial groups, Civil Rights Removal is not available no matter how many non-racially defined civil rights and fundamental constitutional guarantees are violated.  Kathy and I would welcome any and all commentary on this Petition, to be sure. I would also like to express my deep gratitude to Edward Villanueva of San Diego who has underwritten the continued litigation of this and many other issues, and to the newest member of Tierra Limpia/Deo Vindice, S. P.,  who ably assisted in the preparation and editing of the Petition under rather astounding circumstances and short notice while I was otherwise incapacitated.

2 responses to “Civil Rights Removal: A SCOTUS Petition for Writ of Certiorari to the Eleventh Circuit Court of Appeals

  1. On what grounds did you remove? Do you have a link to the notice of removal, and did they award attorney fees and costs on remand? Also, a civil rights removal is appealable unlike a standard 1441 removal which has no appellate review, right?

    • Charles Edward Lincoln III

      Civil Rights Removal and I think that the Notices of Removal might already be lodged somewhere on this blog (possibly from 2010), but I can send you a copy if you want.It seems I cannot attach anything to this reply. It was pending before Judge Kenneth Marra in the Palm Beach County Division of the Southern District of Florida. Yes 28 U.S.C. Section 1447(d) provides for appeal of Civil Rights Removal, as I am fairly sure is discussed in the Petition for Review. The Civil Rights Removal Statute is race-neutral and color-blind but the U.S. Supreme Court has turned it into an anti-majoritarian “Affirmative Action” program. But oddly enough, this means that African-Americans who are subject to civil rights violations in relation to their foreclosure are without remedy under 28 U.S.C. Section 1443(1), so long as the specific civil rights violations do not arise from their own racial status. It is one of those really bad “catch-22” judicial circuses.

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