Removal from State Court

Removal From State Court to Federal Court

A limited right to “remove” certain cases from state courts to federal courts was granted to defendants in the Judiciary Act of 1789,1 and from then to 1872 Congress enacted several specific removal statutes, most of them prompted by instances of state resistance to the enforcement of federal laws through harassment of federal officers.2 The 1875 Act conferring general federal question jurisdiction on the federal courts provided for removal of such cases by either party, subject only to the jurisdictional amount limitation.3 The present statute provides for the removal by a defendant of any civil action which could have been brought originally in a federal district court, with no diversity of citizenship required in “federal question” cases.4 A special civil rights removal statute permits removal of any civil or criminal action by a defendant who is denied or cannot enforce in the state court a right under any law providing for equal civil rights of persons or who is being proceeded against for any act under color of authority derived from any law providing for equal rights.5

Removal from State Court and the U.S. Constitution

The constitutionality of removal statutes was challenged and readily sustained. Justice Story analogized removal to a form of exercise of appellate jurisdiction,6 and a later Court saw it as an indirect mode of exercising original jurisdiction and upheld its constitutionality.7 In Tennessee v. Davis,8 which involved a state attempt to prosecute a federal internal revenue agent who had killed a man while seeking to seize an illicit distilling apparatus, the Court invoked the right of the national government to defend itself against state harassment and restraint. The power to provide for removal was discerned in the Necessary and Proper Clause authorization to Congress to pass laws to carry into execution the powers vested in any other department or officer, here the judiciary.9 The judicial power of the United States, said the Court, embraces alike civil and criminal cases arising under the Constitution and laws and the power asserted in civil cases may be asserted in criminal cases. A case arising under the Constitution and laws “is not merely one where a party comes into court to demand something conferred upon him by the Constitution or by a law or treaty. A case consists of the right of one party as well as the other, and may truly be said to arise under the Constitution or a law or a treaty of the United States whenever its correct decision depends upon the construction of either. Cases arising under the laws of the United States are such as grow out of the legislation of Congress, whether they constitute the right or privilege, or claim or protection, or defense of the party, in whole or in part, by whom they are asserted…. “

Removal from State Court: Developments

“The constitutional right of Congress to authorize the removal before trial of civil cases arising under the laws of the United States has long since passed beyond doubt. It was exercised almost contemporaneously with the adoption of the Constitution, and the power has been in constant use ever since. The Judiciary Act of September 24, 1789, was passed by the first Congress, many members of which had assisted in framing the Constitution; and though some doubts were soon after suggested whether cases could be removed from state courts before trial, those doubts soon disappeared.” 10 The Court has broadly construed the modern version of the removal statute at issue in this case so that it covers all cases where federal officers can raise a colorable defense arising out of their duty to enforce federal law.11 Other removal statutes, notably the civil rights removal statute, have not been so broadly interpreted.12

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This text about Removal from State Court is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

Notes

[Footnote 1] § 12, 1 Stat. 79.

[Footnote 2] The first was the Act of February 4, 1815, § 8, 3 Stat. 198. The series of statutes is briefly reviewed in Willingham v. Morgan, 395 U.S. 402, 405-406 (1969), and in Hart & Wechsler (6th ed.), supra at 396-398. See 28 U.S.C. §§ 1442, 1442a.

[Footnote 3] Act of March 3, 1875, § 2, 18 Stat. 471. The present pattern of removal jurisdiction was established by the Act of March 3, 1887, 24 Stat. 552, as amended, 25 Stat. 433.

[Footnote 4] 28 U.S.C. § 1441.

[Footnote 5] 28 U.S.C. § 1443.

[Footnote 6] Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 347-351 (1816). Story was not here concerned with the constitutionality of removal but with the constitutionality of Supreme Court review of state judgments.

[Footnote 7] Chicago & N.W. Ry. v. Whitton’s Administrator, 80 U.S. (13 Wall.) 270 (1872). Removal here was based on diversity of citizenship. See also The Moses Taylor, 71 U.S. (4 Wall.) 411, 429-430 (1867); The Mayor v. Cooper, 73 U.S. (6 Wall.) 247 (1868).

[Footnote 8] 100 U.S. 257 (1880).

[Footnote 9] 100 U.S. at 263-64.

[Footnote 10] 100 U.S. at 264-65.

[Footnote 11] Willingham v. Morgan, 395 U.S. 402 (1969). See also Maryland v. Soper, 270 U.S. 9 (1926). Removal by a federal officer must be predicated on the allegation of a colorable federal defense. Mesa v. California, 489 U.S. 121 (1989). However, a federal agency is not permitted to remove under the statute’s plain meaning. International Primate Protection League v. Tulane Educ. Fund, 500 U.S. 72 (1991).

[Footnote 12] Georgia v. Rachel, 384 U.S. 780 (1966); City of Greenwood v. Peacock, 384 U.S. 808 (1966); Johnson v. Mississippi, 421 U.S. 213 (1975).