State of Florida v. Shimek

Full title: STATE OF FLORIDA, Plaintiff, v. Paul SHIMEK, Jr., Defendant

Court: United States District Court, N.D. Florida, Pensacola Division

Date published: Mar 9, 1973

356 F. Supp. 687 (N.D. Fla. 1973)

Opinion

No. 73-23-Civ-P.

March 9, 1973.

Curtis Golden, State's Atty., Pensacola, Fla., for plaintiff.

Kent Spriggs, Tallahassee, Fla., for defendant.

ORDER OF REMAND

ARNOW, Chief Judge.

Before this court is respondent's Motion to Dismiss. Such is treated and considered as a motion to remand.

From the proceedings before the court, it is clear petitioner, an attorney who is a member of the Florida Bar, seeks removal to this court of disciplinary proceedings concerning him instituted in the Circuit Court of Florida. He attempts to do so under 28 U.S.C. § 1442 and on the ground that he is an officer of the courts of the United States and that the state court action is based on an act done by him under color of his office or in performance of his duties.

That lawyers admitted to practice before a court are considered officers of that court does not mean that the lawyer is an officer within the meaning of the statute here involved and under the circumstances here presented.

Thus, in Cammer v. United States, 350 U.S. 399, 76 S.Ct. 456, 100 L.Ed. 474 (1956) in which the court reversed Cammer v. United States, 96 U.S.App.D.C. 30, 223 F.2d 322, one of the cases cited by petitioner, the Court held that an attorney, though an officer of the court in many respects, was not an officer as that term was used in the particular statute there involved.

Congress, in enacting the statute here involved, intended the act to apply in those cases where federal officers, and indeed the federal government itself, require a federal forum. Willingham v. Morgan, 395 U.S. 402, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969), and see also discussion of the act in Tennessee v. Davis, 100 U.S. 257, 25 L.Ed. 648 (1879).

Clearly the Congress did not intend that a lawyer admitted to practice before this court might use this statute as a vehicle to remove to this court disciplinary proceedings pending against him in a state court.