Gone but not forgotten

Every litigator who has been around the block at least once has run into a "Status Conference Re: Removal" or something similar -- a case management conference where the superior court inquires whether a case removed to federal court remains removed. Some courts just require a report, but others an appearance of counsel. (And CourtCall isn't necessarily any help -- one colleague sat on the phone for three hours to give a 15-second report that there was no remand.) Monday's per curiam decision from the U.S. Supreme Court in Roman Catholic Archdiocese of San Juan v. Feliciano, 2020 DJDAR 1391, explains why that shouldn't happen.

At issue in Feliciano was a pension plan for retired Catholic school employees in Puerto Rico. After the Puerto Rico Supreme Court reversed and remanded with instructions to issue a preliminary injunction in favor of the retirees, the Church removed the case to federal court. Territorial court proceedings continued, resulting in payment and seizure orders to restore money to the pension fund. The federal court ultimately remanded the case with a nunc pro tunc order calculated to preserve the payment and seizure orders. The Supreme Court declined to rule on the merits, holding that the territorial court lacked jurisdiction to issue payment and seizure orders while the case had been removed to federal court.

Feliciano reminds us all that the law is pretty clear: "Once a notice of removal is filed, 'the State court shall proceed no further unless and until the case is remanded.'" Quoting 28 U. S. C. Section 1446(d). The Supreme Court settled the issue about 140 years ago: "The state court 'los[es] all jurisdiction over the case, and, being without jurisdiction, its subsequent proceedings and judgment [are] not ... simply erroneous, but absolutely void.'" Quoting Kern v. Huidekoper, 103 U. S. 485, 493 (1881). "'Every order thereafter made in that court [is] coram non judice,' meaning 'not before a judge.'" Quoting Steamship Co. v. Tugman, 106 U. S. 118, 122 (1882). Removal divests a state court of jurisdiction. And if the state court doesn't have any jurisdiction, then it doesn't have any jurisdiction. Period.

Underscoring the importance of this basic rule, the Supreme Court rejected any notion that a nunc pro tunc remand order retroactively bestowed jurisdiction on the state court to issue orders before the nunc pro tunc remand was issued. "Put colorfully, '[n]unc pro tunc orders are not some Orwellian vehicle for revisionist history -- creating "facts" that never occurred in fact.'" Quoting United States v. Gillespie, 666 F. Supp. 1137, 1139 (N.D. Ill. 1987).

Which brings us back to the common practice in California trial courts of holding status conferences to monitor the "status" of removed cases. Feliciano reaffirms what has been clear for over a century -- state courts lack the power to order litigants to report to them about the status of removed cases. So where do those courts who indulge in this practice get their authority to do so? Certainly not from the California Rules of Court. There is no rule permitting such proceedings. Indeed, the Standards of Judicial Administration clearly recognize that no such power exists. Standard 2.2(n)(1)(C) provides that "a case is removed from the court's control" upon "[t]he removal of a case to federal court."

Nor can trial courts that disregard their lack of jurisdiction following removal rely on voluntary compliance. The Supreme Court rejected a similar argument in Feliciano: "Such actions do not 'restore[ ]' 'the jurisdiction of the State court.'" Quoting Steamship Co., 106 U.S. at 122-23.

Litigants usually comply with state court orders to attend such status conferences because it is easier and cheaper to comply than to object, notwithstanding the clear merits of objection. But litigants should not be put to this sort of Hobson's choice. It is time for the trial courts to revisit the practice of setting status conferences to monitor the status of removed cases that require an appearance or other action from the parties. 