Opinion
Civil Action Nos. 04-3400, 04-3401, 04-3402.
November 18, 2004
OPINION
These cases involve the removal of state criminal summary appeals to federal court. For the reasons discussed in this opinion, I find the removal to be without any legal basis and I remand the cases to the state courts.
BACKGROUND
On August 23, 2002, the city of Reading issued three non-traffic citations against William C. Lucabaugh, Jr., charging him with violations of Reading's codified ordinance, namely § 305(1) — failure to remove trash/debris in the amount of time given; § 302(1) — failure to maintain exterior premises in a safe, clean and sanitary condition; and § 302(4) — failure to remove weeds/grass in the amount of time given. These violations concerned the manner in which Lucabaugh maintained his real property at 102-104 North 4th Street in Reading. Three summonses for summary cases were issued and mailed to Lucabaugh describing the charges, and outlining his rights and the procedure in which to respond to the summonses. The summonses included a notation that if Lucabaugh failed to respond within the time specified, warrants for his arrest would be issued. On October 16, 2002, three such warrants were issued commanding the authorities to take Lucabaugh into custody and bring him before a District Justice in Reading.
On February 27, 2004, District Justice Deborah P. Lachina issued a notice of trial set for March 10, 2004. On that date, District Justice Lachina found Lucabaugh guilty of the charges and gave him credit for time served in lieu of fines and costs.
On April 2, 2004, Lucabaugh filed a notice of appeal from the summary criminal convictions, and demanded a de novo trial by jury before the Court of Common Pleas of Berks County. On July 21, 2004, Judge Forrest Schaeffer of that court conducted a de novo bench trial and found Lucabaugh guilty of the summary offenses. On August 20, 2004, Lucabaugh appealed his convictions to the Superior Court of Pennsylvania.
At the hearing held on the court's order to show cause, counsel for the city of Reading instructed that the Superior Court would probably transfer Lucabaugh's appeal to the Commonwealth Court of Pennsylvania, the court with proper jurisdiction.
On July 20, 2004, Lucabaugh filed notices of removal of these state prosecutions to federal court. On his civil cover sheet, Lucabaugh stated that his cause of action was based on 28 U.S.C. § 1443, noting "defense against summary penalty where defendant alleges denial of due process of law rights and violation of property rights."
Since then, Lucabaugh has filed several extensive documents with the court in connection with these cases. In his Notices of Removal, he claims that the Berks County Court of Common Pleas will not "grant Defendant due process of law with arraignment hearing and pre-trial conference hearing in common law criminal trial as guaranteed by the Constitution of the United States." Lucabaugh alleges that these cases against him are actions by the city of Reading to prosecute him for being the victim of trash dumping on his property, and are in excess of that municipality's police and regulatory power in that: a) there is no threatened danger; b) there is exercise of a civil right involved; and c) there is no reason to punish the property owner for trespass activity such as trash dumping.
In an Asseveration of Rights filed on September 7, 2004, Lucabaugh demands that wide latitude be given him and that he not be held to the same high standards as a licensed attorney. He insists that because he speaks and understands only "gutter vernacular," this court must conduct its business in English according to Webster's Dictionary. Any attempt at deception by using a foreign word must be stopped and the vernacular English definitions supplied. Lucabaugh further indicates that he would regard any use of unfamiliar language as attempted fraud by deception against his person, his property, and/or his rights. He suggests that he be supplied with an interpreter for the purpose of translation into vernacular English, which would allow him to uncover deception, subterfuge, or evasion. Lucabaugh denies all use of judicial discretion, but demands that the court take judicial notice that all of his submitted papers, motions, briefs, memoranda of law, and exhibits are an integral part of the record. He puts the court on notice that review of the cases is incomplete without consideration of the record in its entirety.
On that same day, Lucabaugh filed a Demand for Notification of Rights Sua Sponte, in which he states that he has no alternative but to defend against potential loss of liberty and property. Lucabaugh also claims that this document delineates his good faith attempt to defend and apply his common law rights, privileges, and immunities as granted by the Creator and secured by the Magna Charta, the Charta DeForesta, the Frame of Government, Laws made in England in 1682, the Constitution of Pennsylvania, and the Constitution of the United States.
Also on September 7, 2004, Lucabaugh filed a response to the court's Order to Show Cause. In responding to why these actions should not be dismissed and remanded to the state courts, Lucabaugh recounted that he was arrested on February 24, 2004 in connection with these charges, and that bail was set at "$3,000 or $4,000." In lieu of posting bail, Lucabaugh was incarcerated until March 10, 2004, the date of his trial by the District Justice. Thereafter, Lucabaugh filed several documents with the Berks County Court of Common Pleas which were allegedly dismissed without a hearing. This caused him to believe that his rights would be ignored in that court. He claims that Judge Schaffer exercised bias and prejudice against him by taking judicial notice of Reading's maintenance code without supplying him a copy; by ruling that what Lucabaugh was growing on his property were weeds despite Lucabaugh's producing evidence of an action for declaratory judgment that the plants he was growing were not weeds but "cultured plants;" and by excluding photographic evidence which showed that Reading was not equally applying its ordinances against Citizens Bank and against the owner of another vacant lot in the city of Reading. Lucabaugh also alleges commingling between Judge Schaffer, the Solicitor of Reading, and an employee of Reading who served as an expert witness at trial. These suspicions led him to file the notices of removal to this court. Lucabaugh concluded by indicating that he is only trying to enjoy peaceably his right to the unrestricted use of his private property, and to protect his legal rights.
In a Notice to the Court filed September 22, 2004, Lucabaugh demands to know why his name appears in all capital letters in court notices, when capital letters should be reserved only for corporations. Should he receive anything else from the court where his name appears in capital letters, it will be "refused for misnomer." Lucabaugh also indicates that he suspects that this court is proceeding outside the bounds of common law and hence outside the "law of the land" described by our nation's constitution because the court declined to hold the September 2004 hearing in "common law jurisdiction," because it puts his name in capital letters, and because it does not dress the courtroom in a "free flag of peace."
DISCUSSION
A notice of removal of a criminal prosecution shall include all grounds for such removal. 28 U.S.C. 1446(c)(2). A federal district court is to examine promptly the notice of removal of a criminal prosecution. 28 U.S.C. 1446(c)(4). 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. Id.
Title 28 of the United States Code, Section 1443, provides:
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 Supreme Court established a two part test for removal petitions under Section 1443 in Johnson v. Mississippi, 421 U.S. 213 (1975): First, it must appear that the right allegedly denied the removal petitioner arises under a federal law "providing for specific civil rights stated in terms of racial equality." Id. at 219 (quoting State of Georgia v. Rachel, 384 U.S. 780, 792 (1966)). A state court defendant's claim that prosecution and conviction will violate rights under constitutional or statutory provisions of general applicability or under statutes not protecting against racial discrimination is insufficient for removal. Johnson v. Mississippi, 421 U.S. at 219. Second, it must appear that the removal petitioner is "denied or cannot enforce" the specified federal rights in the courts of the State. Id. (quoting 28 U.S.C. § 1443(1)); see also Davis, et al. v. Glanton, et al., 107 F.3d 1044, 1047 (3d Cir. 1997).
In these cases, the notices of removal clearly do not satisfy the first prong of the test. Lucabaugh does not allege that he is being denied a right arising under a federal law "providing for specific civil rights stated in terms of racial equality." State of Georgia v. Rachel, 384 U.S. at 792. The allegation that Lucabaugh is being denied due process and the right to the unrestricted use of his private property does not implicate any specific civil right protecting racial equality. These rights are not, in the language of the statute, rights arising "under any law providing for the equal civil rights" of United States citizens. Moreover, that a removal petitioner will be denied due process of law because the criminal law under which he is being prosecuted is allegedly vague or that the prosecution is a sham, corrupt, or without evidentiary basis does not, standing alone, satisfy the requirements of Section 1443. City of Greenwood v. Peacock, 384 U.S. 808, 825 (1966).
Because Lucabaugh's petitions for removal do not allege a denial of equal rights based on race, I will remand these cases to the state courts. Other cases have stressed that such a holding does not mean to imply that the potentially important federal rights asserted may never be heard in a federal court. Rather, removal under 28 U.S.C. § 1443 is not the proper vehicle for obtaining a federal forum. Id. at 828; see Rothenberg v. Beers, 450 F.2d 783 (3d Cir. 1971); Gittman v. Gittman, 451 F.2d 155 (3d Cir. 1971).
An appropriate Order follows.
ORDER
AND NOW, this 18th day of November, 2004, upon consideration of Defendant's Notice of Removal filed on July 20, 2004 in each of the above matters, and all related documents, it is hereby ORDERED that the above cases are summarily remanded to the state courts of Pennsylvania. These cases shall be closed for statistical purposes.