Commentary: Removal to federal court, Part III

Removal of a state court case to federal court, even when improper, can thwart the progress of the state proceeding. Judge Marvin J. Garbis of the U.S. District Court at Baltimore is currently considering a highly unusual case that demonstrates how removal can interrupt and delay state court proceedings.The case, and others like it, have focused attention on this jurisdictional question: If a defendant files a seemingly improper notice of removal in the later stages of a state court proceeding, can the state court move ahead with the case before the federal court has ruled on the notice of removal?In Attorney Grievance Commission of Maryland v. Patrick Muhammad, a lawyer who is the subject of a disciplinary proceeding in the Maryland Court of Appeals filed a notice of removal nearly two months after Maryland's highest court had heard argument in the case. Several weeks after the removal notice was filed, but before the federal court had determined whether it would remand the case, the Court of Appeals filed a decision disbarring Mr. Muhammad.Days later, the Attorney Grievance Commission (AGC) moved to remand the case back to the Court of Appeals. The day after the AGC filed its motion to remand, Muhammad filed an Emergency Request to Vacate Illegal Order of Disbarment. Prior to the hearing date on this request, the Maryland Court of Appeals issued an order staying the effect of its Dec. 14, 2005 order disbarring Muhammad. The remand motion will be decided once briefing on it has been completed.On Dec. 30, Judge Garbis issued his rulings on the emergency motion that addressed the question posed above. He determined that as a result of the removal, the Maryland Court of Appeals lacked jurisdiction over the case at the time it purported to disbar the attorney and, therefore, the Maryland Court of Appeals' Order of December 14, 2005 purporting to disbar Petitioner is null and void ab initio.Judge Garbis further held [i]nsofar as this Court's holding has effect, [Mr. Muhammad] was not disbarred on December 14, 2005, the day the Court of Appeals purportedly disbarred him, and he is therefore still able to practice law as a member of the Maryland Bar.Judge Garbis made it clear, however, that the federal court had before it at the time only the question of whether to take jurisdiction and resolve the disciplinary proceeding, or not to take jurisdiction and remand the case. He indicated that unless and until it takes jurisdiction, the federal court does not have plenary authority to issue orders in the case. Judge Garbis stated that the court, most certainly, does not have appellate authority over the Maryland Court of Appeals.This saga is far from over, because the ACG's motion to remand the disciplinary case to the Court of Appeals has not yet been decided. If the case is remanded, the court could, of course, take further action to discipline the attorney.In holding that the Maryland Court of Appeals' disbarment order was void for lack of jurisdiction, Judge Garbis explained that the 4th U.S. Circuit Court of Appeals established in South Carolina v. Moore, 447 F.2d 1067 (4th Cir. 1971), that the filing of a notice of removal of a state court case results in the immediate loss of state court jurisdiction. Any action taken by the state court after removal, unless and until the case is remanded, is void.In Moore, a murder prosecution, the defendant filed a notice of removal on the eve of trial. The state court proceeded with the trial anyway; the defendant was convicted and sentenced to prison. The 4th Circuit held that the notice of removal was not valid so that the case had to be remanded. The court held, however, that even though there had not been a proper removal, the state court trial was still void, the conviction was a nullity, and the defendant had to be released from prison. The state could, if it wished, retry him. In his Muhammad decision, Judge Garbis noted that in Moore the 4th Circuit acknowledged that its interpretation of the removal statute makes it susceptible to abuse by litigants seeking to interrupt or delay state trials. Nevertheless, the solution to this problem is for Congress to make. Judge Garbis also pointed out that there exists a judicial view contrary to that of the 4th Circuit. In Bell v. Burlington Northern Railroad Co., 738P 2d. 949 (Okla. Civ. App. 1986), the defense filed a notice of removal during a jury trial and asserted to the state trial court that it had lost jurisdiction by virtue of the notice. The state court proceeded with the trial, and the jury returned a verdict against the defense. On appeal, the Court of Appeals of Okalahoma decided that the removal statute did not permit removal after a trial has commenced in a state court. The U.S. Supreme Court denied certiorari in the Bell case, but in a dissent from the denial, Justice Byron White noted that the Bell decision conflicts with cases (such as the 4th Circuit's Moore decision) holding that when a case has been removed to federal court, the state court loses all jurisdiction to act until the case is remanded.To date, neither Congress nor the Supreme Court has resolved the conflict pointed out by Justice White. If Muhammad is ever appealed to the 4th Circuit, that court might alter its strict interpretation of the removal statute. The Supreme Court might eventually resolve the conflict between cases like Moore and Bell, as Justice White recommended. Muhammad may be the catalyst necessary to resolve the rare, but intriguing, jurisdictional tug of war that removal can create.Trial lawyer and author Paul Mark Sandler is a partner with Shapiro Sher Guinot & Sandler in Baltimore. His column appears each Friday in The Daily Record. Robert B. Levin is also a partner with the firm.

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