Glick v. State of Montana

Filing 2

ORDER FOR SUMMARY REMAND. Signed by Judge Dana L. Christensen on 11/10/2016. Mailed to Glick; forwarded to the Eleventh Judicial District Court of Montana. (TAG, )

FILED
NOV 10 2016
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

Cler1<, U S District Court
District Of Montana
Missoula

Cause No. CV 16-141-M-DLC

Ron Glick,
Petitioner/Defendant

ORDER FOR SUMMARY REMAND
v.
State of Montana,
Respondent/Plaintiff.

On November 2, 2016, Mr. Glick filed a Notice of Removal accompanied by
exhibits. (Docs. 1, 1-1, and 1-2). Glick did not file an application to proceed in
forma pauperis.
While it is unclear whether or not Glick is required to pay a filing fee, there
is no point in delaying disposition of this matter. Thus, any filing fee required in
this matter is waived.
In 2005, Glick was convicted of sexual assault in the Eleventh Judicial
District Court, Flathead County, Montana, and was sentenced to serve twenty years
with fifteen years suspended. (Doc. 1 at 1). Glick is now serving the suspended
portion of his sentence. Id. at 1-2. In May of 2016, a Report of Violation and a
corresponding Petition for Revocation of Glick's suspended sentence was filed by
the Flathead County Attorney's Office; an Addendum to the Report of Violation

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was filed in July of 2016. (Doc. 1-2 at 1- 12).
Apparently, in September of 2014, Glick published a book entitled, "U.S.
Political Prisoner Since 2004: The True Story of an Innocent Man Detained as a
Political Dissident in Kalispell Montana." Id. at 4; see also (Doc. 1 at 2). The
initial report of violation alleged that Glick neglected to redact a single reference to
his victim's name in the book. (Doc. 1-2 at 4-5). Glick also maintains a blog
entitled "The Great Montana Conspiracy." (Doc. 1 at 2; Doc. 1-2 at 7). The
Addendum to the report of violation alleges that Glick made a statement in his blog
that appeared to be an attempt at intimidating the mother of his victim. (Doc. 1-2
at 7).
Glick, through counsel, filed a motion to dismiss the Petition for Revocation,
relying primarily on Glick's First Amendment right to free speech. See generally,
(Doc. 1-2 at 13- 19). Glick also argued that because the Flathead County Attorney,
Ed Corrigan, who was specifically named in Glick's book and characterized as a
"corrupt politician" engaged in a "gestapo-style racketeering organization that has
escaped accountability for decades" and whose office was the office behind the
filing of the revocation proceedings, there was an appearance of impropriety. Id. at
17. Relying on Young v. U.S. Ex Rel. Vuitton Et Fils S.A., 481 U.S. 787, 811-812
( 1987), Glick argued further prosecution by the Flathead County Attorney's office
undermined confidence in the criminal justice system. Id. at 18. Glick requested
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the trial court order a disinterested and objective prosecutor handle further
proceedings against Glick. Id. It appears that the trial court refused to grant Glick
the relief he sought. See, (Doc. 1 at 5).
Glick seeks to have his state revocation proceedings removed to this Court
because he does not believe he will receive a fair or impartial hearing before the
state trial court which he perceives to be "plainly prejudiced and biased." (Doc. 1
at 3). Additionally, much as he argued before the trial court, Glick contends that
the Flathead County Attorney's Office has an inherent conflict of interest based
upon the appearance of impropriety relative to Glick's book and the allegations
lodged therein. Id. at 3-4. Glick cites 28 U.S.C. § 1455 as the basis for his
removal and contends he has shown the good cause necessary to effectuate such a
removal.
Federal courts are courts of limited jurisdiction and the power to adjudicate
claims is limited to that granted by Congress and "such grants are not to be lightly
inferred." Al Nieto v. Ecker, 845 F. 2d 868, 871 (9th Cir. 1988); US. v. Sumner,
266 F. 3d 1005, 1009 (9th Cir. 2000). There is a presumption against federal
jurisdiction. Kokkonen v. Guardian Life Ins. Co. ofAm., 511 U.S. 375, 377 (1994).
The burden is upon Glick to establish that removal is proper.
Glick relies upon 28 U.S.C. § 1455 to support his removal, however, this
statute simply sets forth the procedure for removal. The jurisdictional bases for
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removal are much narrower in scope. Under 28 U.S.C. § 1442(a), a criminal
prosecution of any officer of the United States or its courts, any officer of either
House of Congress, or any member of the United States armed forces subject to
prosecution may remove an action that arises from acts done under color of such
office or status. Glick makes no such allegations here.
Under 28 U.S.C. § 1443(1), a state criminal prosecution maybe removed ifa
defendant seeks to assert a defense based upon federal laws protecting equal civil
rights but is unable to because of state law. Removal under this section must
satisfy a two part test. Glick must: (1) assert as a defense to the prosecution, rights
that are given to him by explicit statutory enactment protecting equal racial civil
rights, and (2) assert that the state courts will not enforce that right and the
allegation must be supported by reference to a state statute or constitutional
provision that purports to command the state courts to ignore the federal rights.

Patel v. Del Taco Inc., 446 F. 3d 996, 999 (9th Cir. 2006), citing California v.
Sandoval, 434 F. 2d 635, 636 (9th Cir. 1970). Glick seeks to defend his state
revocation based, in part, on his First Amendment rights. He is not asserting his
equal racial civil rights as a defense, nor does he reference any state statute or
constitutional provision commanding the state court to ignore his federal rights.
Even if this Court were to find that Glick properly complied with the
procedural provisions of 28 U.S.C. § 1455, he has not demonstrated a federal
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ground sufficient to provide this Court jurisdiction to support removal of his state
revocation proceedings.
Based on the foregoing, IT IS HEREBY ORDERED:
1. Any filing fee required in this matter is waived;
2. Pursuant to 28 U.S.C. § 1455(4) this matter is REMANDED to the
Eleventh Judicial District Court of Montana.
DATED this

I o#aay ofNovembe'

016.

Dana L. Christensen, Chief Judge
United States District Court

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