In re Racine County Court Order Against Reynolds

Per Curiam. On February 19, 1973, Judge John W. Reynolds of the Federal District Court for the Eastern District of Wisconsin, by United States Attorney David J. Cannon, petitioned this court for a writ of prohibition against the Honorable Richard G. Harvey, Jr., Judge of the County Court of Racine County. This petition asked for a writ commanding Judge Harvey to desist and refrain from any further proceedings in a matter pending in the county court of Racine county against Judge John W. Reynolds. An order to show cause was issued to Judge Harvey why a writ should [425] not be granted. The matter was heard and taken under advisement. On November 9, 1972, in the pending divorce action Judge Harvey ordered Attorney Sutton to show cause why he should not be in contempt of court in seeking federal court aid in a matter then pending in his court and which the judge had under advisement. Attorney Sutton promptly filed a petition in the federal court (No. 72-C-626) to remove the contempt proceedings. On January 26, 1973, Judge Tehan granted Judge Harvey’s petition to remand the contempt proceedings on the ground there was no substantial federal question involved in the contempt proceeding. Sutton then commenced an original action in the federal court of the eastern district of Wisconsin (No. 73-C-40), alleging his civil rights were being'violated and seeking an injunction under 42 USCA 1983, against Judge Harvey for holding him in contempt of court. Judge Reynolds heard the motion for a temporary injunction on January 31, 1973, but on that day Judge Harvey ordered Judge Reynolds to show cause why Judge Reynolds should not desist from interfering with the contempt proceeding in the divorce action pending in Judge Harvey’s court. On February 7, 1973, Judge Reynolds filed a petition to remove this order to show cause on the basis that sec. 1441 (a) and (b) and sec. 1442 (a) (3) of Title 28 USCA were applicable. This case became No. 73-C-64. The majority of this court views this application of Judge Reynolds for a writ of prohibition under the superintending power of the supreme court as presenting a very narrow issue. The narrow issue is whether Judge Harvey can ignore the removal of his order requiring Judge Reynolds to show cause why Judge Reynolds should not desist from interfering with the contempt [426] proceeding, because he believes the federal removal statute is unconstitutional. We do not think that Judge Harvey can decide the constitutionality of 28 USCA 1446 (e) in any case now pending before him or ignore the section because of his personal belief that it is unconstitutional. Consequently, whether this removal has merit, or not is a question to be determined by the federal court of the eastern district of Wisconsin on the motion to remand and Judge Harvey cannot require Judge Reynolds to appear in his court to show cause why he should not desist from interfering with the jurisdiction of the county court of Racine county until this question has been decided. On the narrow facts presented here, we grant a writ of prohibition to enjoin the Racine county court from requiring Judge Reynolds to show cause why he is. not in contempt of court. Let the writ issue.