Wirtz Corporation, D/B/A Judge & Dolph, Ltd. v. United Distillers & Vintners North America, Incorporated

RIPPLE, Circuit Judge,

concurring.

As the court correctly points out, the question in this case is whether the ILCC qualifies as a “state court” for purposes of 28 U.S.C. § 1441(a). See ante at 710. Also, the majority appropriately grounds its analysis in our decision in Floeter v. C.W. Transport, Inc., 597 F.2d 1100 (7th Cir.1979) (per curiam). In Floeter, we held that, when analyzing whether a state tribunal is a “state court” for purposes of the federal removal statute, “the title given [the] state tribunal is not determinative” and that, instead, “it is necessary to evaluate the functions, powers, and procedures of the state tribunal and consider those factors along with the respective state and federal interests in the subject matter and in the provision of a forum.” Floeter, 597 F.2d at 1102 (citing Volkswagen de Puerto Rico, Inc. v. Puerto Rico Labor Relations Bd., 454 F.2d 38, 44 (1st Cir.1972)).

Applying Floeter to the present action, the court concludes that this action cannot be removed to federal court because Illinois’ interest in the regulation and administration of its “alcoholic beverages program” — an interest made paramount by the Twenty-first Amendment to the Constitution of the United States — outweighs any federal interest in allowing removal to a federal court. Ante at 713-14. I, too, agree that Illinois’ interest in the regulation of alcohol within its borders weighs heavily against allowing removal of this proceeding. I write separately, however, to emphasize that “the functions, powers, and procedures” of the ILCC, Floeter, 597 F.2d at 1102, do not make it a “state court” for purposes of 28 U.S.C. § 1441(a).

In short, I believe that it is clear that the ILCC’s functions, powers, and procedures, taken as a whole, demonstrate that it is an administrative agency, not a court. To reach this conclusion, it is not necessary to look much further than the information about the ILCC that the majority has already provided. Generally speaking, the ILCC is merely a “specialized state regulatory commission.” Ante at 712. The act that created the ILCC, the Liquor Control Act, “authorizes the ILCC to issue and revoke the liquor licenses of manufacturers, inspectors, distributors and retailers, and beyond that to generally enforce the Act,” and “[t]hose responsibilities include setting standards of manufacturing and the inspection of premises where alcoholic liquors are manufactured, distributed or sold.” Ante at 710 (citing 235 Ill. Comp. Stat. 5/3-12).

With the passage of the Fair Dealing Act, the ILCC has been given additional powers. Section 35 of that act gives the ILCC the power to “[p]rohibit or suspend any supplier” found to have “flagrantly or repeatedly” violated the obligation of good faith from selling alcoholic beverages in Illinois. 815 Ill. Comp. Stat. 725/35(c)(1). The ILCC also has the power to order the supplier “to continue providing products to a distributor at prices and quantities in effect for the distributorship prior to any termination or failure to renew that becomes the subject of a dispute or administrative proceedings under this Section until the matters in dispute are determined by an order which is final and non-reviewable.” Id. 725/35(c)(2). Section 35(f) of the act provides that “[n]o court shall enter a stay, restraining order, injunction, mandamus, or other order that has the effect of suspending, delaying, modifying, or overturning a Commission finding or determination under this Section before a full hearing and final decision on the merits of the Commission ruling, finding, or order.” Id. 725/35(f). These orders from the ILCC, nevertheless, are ultimately reviewable by Illinois circuit courts under the state’s administrative procedure law. See id. 725/35(e).

The power the ILCC now wields under the Fair Dealing Act does not transform this regulatory agency into a state court. The ILCC’s powers to suspend a supplier *715and to order the status quo pending the outcome of the agency’s proceedings, although extraordinary powers, do not change the fundamental nature of the ILCC. It is still, foremost, a state administrative agency charged with the regulation of the distribution and sale of alcohol in Illinois.

Moreover, the action UDVNA wishes to remove to federal court stands in stark contrast with the action that was before us in Floeter. The removed action in Floeter was a dispute between several employees and their employer and local union. The plaintiffs had brought the action before the Wisconsin Employment Relations Commission (“WERC”) “to enforce a collective bargaining agreement” that, under the Labor Management Relations Act, 29 U.S.C. § 185(a), “fell within the jurisdiction of the United States District Court.” Floeter, 597 F.2d at 1101. “[BJasically,” we said, the action was “a breach of contract and unfair representation action” that “would have been determined by federal law regardless of the forum in which it had been brought.” Id. at 1102. The WERC’s “procedures [were] substantially similar to those traditionally associated with the judicial process,” and the Supreme Court of Wisconsin “ha[d] itself recognized that the WERC [was] vested with ‘judicial power.’ ” Id. We also explained that Wisconsin’s interest in providing an expeditious forum for resolving such disputes did not outweigh the defendants’ right of removal. See id.

The action brought before the ILCC is more akin to the one the Court of Appeals for the Third Circuit confronted in Sun Buick, Inc. v. Saab Cars USA, Inc., 26 F.3d 1259 (3d Cir.1994), in which a party sought to remove a good faith termination proceeding from the Pennsylvania Board of Motor Vehicle Manufacturers, Dealers and Salespersons (the “Pennsylvania Board of Vehicles” or the “Board”). Although the Third Circuit called Floeter’s “functional test” into question, see id., 26 F.3d at 1261-64, that court nevertheless proceeded to hold that under the “functional test” the Pennsylvania Board of Vehicles was a “usual” administrative agency and not a state court for purposes of removal, id. at 1264-66. The court explained that the Board “administers and enforces” state law by “regulatfing] the licensing of salespersons, dealers, brokers, and manufacturers.” Id., 26 F.3d at 1264. “It passes on the qualifications for licensure, investigates allegations of wrongful acts, and brings criminal prosecutions for unauthorized practices (ie. acts like a prosecutor).” Id. at 1264-65. The court further noted that the powers of the Board were “circumscribed” in that, in addition to imposing disciplinary sanctions, it could only enjoin the termination of a franchise agreement or enjoin the addition or relocation of a motor vehicle dealer. Id. at 1265. Finally, the Third Circuit noted that the composition of the Board did not resemble a court in that its members were not necessarily lawyers, were often members of the executive branch of the state government, and were not necessarily disinterested. See id. at 1266.

Almost the same thing can be said of the ILCC, as is evident from the court’s discussion of the ILCC’s characteristics. The composition of the ILCC does not resemble a court; its commissioners need not be lawyers. See ante at 712-13. The ILCC’s role is that of a specialized regulatory agency, and its powers are not those of a court of general jurisdiction. When looked at as whole, this administrative agency does not have the attributes of a court and therefore cannot be considered a court for purposes of § 1441(a). Cf. Sun Buick, 26 F.3d at 1264.

The removal statute should be construed narrowly and any doubts about the propriety of removing a particular action should be resolved against allowing removal. See Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.1993); Illinois v. Kerr-McGee Chem. Corp., 677 F.2d 571, 576 (7th Cir.1982); see also Shamrock Oil & Gas Co. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, *71685 L.Ed. 1214 (1941) (stating that the removal statute should be construed strictly); In re Application of County Collector of the County of Winnebago, 96 F.3d 890, 895 (7th Cir.1996) (same). Particularly relevant to our case is the fact that the statute allows defendants to remove only those civil actions “brought in a State court.” 28 U.S.C. § 1441(a). In the present case, UDVNA has sought to remove to federal court a matter pending before a state administrative agency, an agency whose “functions, powers, and procedures” cannot be equated with those of a court. The ILCC simply is not a “state court” as contemplated by § 1441(a) and our decision in Floeter.