*1 v. RACHEL GEORGIA et al. 20, 1966. April June Argued 25-26, 1966. Decided
No. *2 George Jr., K. McPherson, Sparks, J. Robert Assistant Solicitors General Georgia, argued the cause K. Arthur were the brief on With them petitioner. Jr., Slaton, LeuAs R. General, Bolton, Attorney General. Solicitor respond- argued cause
Anthony Amsterdam G. Hollowell, were Donald L. him the brief on With ents. Nabrit Greenberg M. III. and James Jack opinion delivered the Stewart Justice Mr.
Court. scope concerning the presents questions
This case permits a defendant century-old federal law that his a federal transfer case to proceedings court state law, now 28 conditions. That trial court under certain *3 (1964 ed.), provides: § 1443 S. C. U.
“§ Civil cases. following criminal “Any the civil actions or may in a court prosecutions, commenced State by to the court removed the defendant district for district em- the United States the and division bracing place pending: the wherein it Against or
“(1) any person is denied cannot who any the State courts of such under enforce providing law of citizens equal persons or of all States, United within the jurisdiction thereof;
“(2) For any authority act under color of derived from law providing rights, or for re- fusing ground to do any act on the would be inconsistent with law.” such The case arises from a removal petition filed Thomas Rachel and seeking 19 other defendants to transfer to the United District Court for the Spates Georgia criminal Northern District of trespass prosecu- against pending tions them Superior Court of County, Georgia. Fulton The stated that in the defendants had been arrested on various dates they sought of 1963 when to at spring obtain service open privately general public owned restaurants Georgia. Atlanta, alleged: defendants purpose “their arrests were effected for sole and and aiding, abetting, perpetuating customs, usages which deep historical and psychological roots the mores and attitudes which exist within the City respect serving of Atlanta with and seat- ing Negro places members race in such public accommodation and upon convenience racially discriminatory and basis terms imposed upon conditions not members of so- called white or race. so- Caucasian Members or similarly called white Caucasian race are treated against accompanied by discriminated when Negro members of the race.” according Each in- defendant, petition, then dicted under Georgia making statute it a misde- meanor refuse to the premises leave of another when requested person charge.1 to do the owner so On these allegations, defendants maintained removal was under authorized both subsections C. § U. S. 1443. The broadly defendants maintained *4 they to were entitled removal under the First and the Amendment Due Process of the Clause Four- 1 The statute under which charged, the defendants were Ga. Code (1965 Supp.), provides: Ann. Cum. §26-3005 premises by to leave another when to ordered do so “Refusal of person charge. owner or It shall person, be unlawful premises another, who is on the of to refuse to and fail leave said premises requested any person when to so do the owner or charge premises agent employee of said or the or of such or owner person charge. Any person violating such provisions the this of guilty section be of shall a misdemeanor and conviction thereof punished shall be for a as misdemeanor.” invoking language Specifically teenth Amendment. clause, enforce” or cannot “denied (1), of subsection petition stated: their enforce cannot denied are
“petitioners
and/or
rights under the
Georgia
of
State
of the
the Courts
pro-
of
States
Laws
the United
and
Constitution
of the
rights of citizens
United
viding for the
of
things,
State
among
other
that,
States ...
sup-
practice
and
usage,
Georgia by statute, custom,
discrimination.”
of racial
policy
maintains a
ports and
of
(2), the “color
language of subsection
Invoking the
petition
stated:
authority” clause,
being
for acts done
prosecuted
are
under
“petitioners
the constitution and
authority
of
derived from
color
refusing
an
of
States and for
to do
laws
the United
with the
was,
is,
act which
inconsistent
Consti-
Laws of the
tution and
United States.”
own
hearing,
On its
motion
without a
Federal
Superior
District
remanded the
Court
Court
cases
County, Georgia, finding
of Fulton
did
allege
not
sufficient to sustain
facts
removal under the
federal
appealed
statute.
defendants
to the Court
Appeals
Fifth
of
for the
Circuit.2
reject
appeal
untimely.
contention
We
the State’s
appeal
days
The notice of
was filed 16
after
order of remand.
Although
(a) (2)
Rule
of the
Federal Rules of Criminal Procedure
appeal
requires
days
that an
entry
taken within 10
after
appealed from,
govern
appeal
order
rule
not
an
does
taken
prior
finding
guilty
guilty by
verdict,
plea
or not
the court, or
guilty.
promulgated
authority
This Court
Rules 32-39 under
February 24, 1933,
only
govern
the Act of
which authorized
rules
ing proceedings
finding
verdict,
guilty
in criminal cases
after
or
plea
guilty
court,
guilty.
amended,
or
47 Stat.
ed.).
(1964
1940, Congress
18 U. S. C. 3772
See
We
certiorari
to consider the applicability of
the removal statute to the circumstances of this case.
S.U.
808. No
touching
issues
the constitutional
guilty.
54 Stat.
amended,
(1964 ed.).
U. S. C. §3771
But
this
required
authorization
the rules be submitted
Congress
they
before
Only
could take effect.
Rules 1-31 and 40-60
were so submitted.
power
construction.4
statutory
questions
provi
of a
is a direct
statute
descendant
present
The
Rights Act of
of the Civil
part
enacted
sion
(1) was
§
now 1443
The subsection
14
Stat.
beginning with
in a series
decisions
this
before
Virginia v.
Virginia, 100
303, and
West
S.
Strauder v.
U.
Kentucky
Rives,
ending
in
with
313,
1880 and
100
S.U.
Powers,
has not
The Court
1,
201
S.
1906.5
v.
U.
be
then, one reason
removal statute since
considered
sought to be removed
remanding a case
ing
an order
1887.6
appealable
year
after
§
under
1443 was not
Con
Rights
1964, however,
In
901 of the Civil
Act
§
from remand orders
gress specifically provided
appeals
for
courts
give
reviewing
so as to
the federal
cases,
§ 1443
4
remarkably original
comprehensive
discussion
For a
Peacock,
City
presented in
Greenwood v.
this case and
issues
Affecting Feder
post, p. 808,
Amsterdam, Criminal Prosecutions
see
Corpus
Rights:
ally
Federal
and Habeas
Guaranteed Civil
Removal
Trial,
Pa.
Rev. 793
Jurisdiction to Abort State Court
113 U.
L.
(1965).
5
Delaware,
370;
intervening
were: Neal
U.
The
cases
v.
103
S.
Kentucky,
110;
Mississippi,
Bush
Gibson
162
S.
v.
107 U. S.
v.
U.
Murray
Louisiana,
565;
Mississippi,
592;
163
Smith v.
162 U. S.
v.
Mississippi,
101; Williams v.
170
S. 213. See also Dubuclet
U. S.
U.
Cobb,
Louisiana,
550;
103 U. S.
Schmidt v.
Mr. Kastenmeier had a bill introduced itself, making which he described it “easier to remove a from case appears a State court to U. S. district court, whenever it that impartiality possible strict not Cong. in the State court.” 109 13126, defending simply Rec. 13128. later the final bill which appealable cases, made remand orders he on said the House Chairman, floor: probably “Mr. what we have done is the most thing possible in modest this field. The subcommittee had before slightly it a dealing problem, more ambitious section with this and would have amended 1443 and but the committee took the approach provided merely most appeal conservative and for an of Cong. the remand decision.” Rec. 2773. speaking
The statements of leaders for the bill on the floor by typified following of the Senate are of remarks Senator Dodd: thought Congress specify “Some have that it would be better to directly ought removable, the kinds of cases which it thinks to be simply permitting appeals rather than allowing and the courts to again light original consider the of statute intention of the Congress however, me, It seems the course we considering appropriate, have chosen is more the rather technical dealing. nature of with the statute which we are extremely precision “It specify would be difficult to with the kinds ought cases which to be removable under section 1443. This is many true because and varied circumstances which can and do Accordingly, arise civil matters. it seems advisable to allow the courts to deal case they arise, case with situations as remedy and to fashion so as to harmonize with the other statutory equal rights.” remedies made available for denials civil Cong. Rec. 6956. to vari consideration give extensive occasion now had before In the case statute.8 the removal aspects ous only dealt Fifth Circuit for the Appeals us, §of first subsection arising under issues with issues. those our review we confine remove the defendants (1) entitles Section meet they if only federal to the court prosecutions these must show They subsection. of that requirements both “right is a they rely which right both rights,” for . . . providing law under enforce” or cannot are “denied they Georgia. in the courts for . . . providing law “any statutory phrase original in the removal appear rights” did
equal civil provi- That Rights Act in the Civil provision involving express only in cases sion allowed removal guaranteed in the Act statutory rights equality of racial Act itself. The first section of the 1866 secured all citizens the “same” as were white “enjoyed in a variety citizens” of fundamental areas.9 Section *8 8 City post, Peacock, Greenwood v. In addition to this case and of City Danville, p. see Baines 808, Circuit, from the Fifth 357 v. of City Anderson, (C. Chester Cir.); F. 756 4th 2d A. 347 2d F. of Galamison, (C. New York Cir.); (C. 823 A. 3d 255 342 F. 2d A. Cir.). 2d
The statistics on the number of kinds criminal cases of all removed years revealing. from to state federal courts in recent are For the years 1962, 1963, 1964, 18, 14, 43, fiscal and there were and 1,192 cases, respectively. such Of the total removed criminal cases 1965, 1,079 for Report were in the Fifth Circuit. See Annual of the Director of the Administrative Office of the Courts United States (1965). 213-217 9 Rights provided 1 of the Civil Act of 1866 in relevant Section part: every 11 . . citizens of color, . the United States of “[A] ... race and regard any previous slavery without involuntary to condition of right servitude . . . shall have the same ... to make and enforce contracts, sue, give parties, evidence, to inherit, purchase, and to lease, convey sell, hold, personal and real and property, and to full
789 removal provided for Act, section the removal . . the enforce . or cannot are denied “persons who by of this section first by them secured to rights . . . .”10 act for . . . “any providing law language present the Re- appeared in of rights” § first civil
equal Statutes When the Revised Statutes of 1874.11 vised provisions substantive and removal compiled, were of forward 1866 were carried Rights of the Civil Act Congress longer could no Hence, separate sections.12 by was removal available identify which Act— original Rights Civil using language of this “rights to them the first section act.” secured suggest language chose, however, The new it does not scope intended limit removal recognized in existing contrary, statutes On Congress’ open-ended phrase pro- choice of the law “any viding equal . rights” clearly . . civil appro- priate permit removal in cases involving “a existing under” both and future provided statutes that for equal rights. civil
There is no substantial indication, however, that general language the Revised Statutes was intended expand the kinds of “law” to which re- moval section referred. spite potential breadth of the phrase “any law providing equal for . . . and benefit all laws and proceedings security for the person property, enjoyed citizens, white and shall be subject to like punishment, pains, penalties, other, and to none any law, statute, ordinance, regulation, or custom, contrary to the notwithstanding.” Stat. provisions The relevant of 3 of Civil Act of Stat. are Appendix included in opinion. to this *9 provisions The relevant of 641 of the Revised § Statutes of 1874 are Appendix included opinion. to this 12 guarantees 1 of Rights the Civil § Act of 1866 were carried forward as 1977 and 1978 §§ Statutes, Revised now 42 U. S. (1964 C. 1981 ed.). and 1982 §§ 790 641, Congress enacting § clear seems it
rights,” comparable laws only include phrase in that intended Prior Act of 1866. Rights Civil in nature to the enlarged significantly had not Congress revision, persons private for removal available opportunity rights category specified relatively narrow beyond the and Fif- though the Fourteenth Act, in the 1866 even Congress had adopted been teenth Amendments had rights civil broadly implemented major, them other legislation.13 an cross- Moreover, explicit § 641 contained § reference at end of the section to Re- rights vised which Statutes, principal carried forward the addition, § created of the 1866 note in Act. the margin pointed §of 641 specifically to the removal provision Rights of the Civil Act of 1866 and to §§ 16 Rights 18 of the Civil Act of 1870.14 The latter sec- 13See, g., Rights e. Act, May second 31, 1870, Civil Act of 140, by February Stat. as amended Act of 28, 1871, 433; 16 Stat. Rights April third Act, 20, Civil Act of 1871, 17 Stat. 13. Section 1 1871, (1964 Act of now 42 ed.), Civil. U. S. C. 1983 § established civil deprivation remedies for “the rights, priv ileges, or by immunities secured the Constitution of the United States.” When in 1874 the revisers relocated of the 1871 Act as § 1979 of the Statutes, they expanded Revised § the section to include deprivation rights, privileges, and by immunities secured “Constitution and laws” of the United States, in contrast to their merely reference to “law” in 641 of the Statutes, Revised the civil rights provision. removal At least in circumstances, some therefore, appears may Revised specifically Statutes distin guished “rights between by secured “rights Constitution” and by any secured providing law rights.” See also Re vised Statutes Sixteenth (1874), which explicit drew an dis tinction between by secured Constitution and secured the laws of the United marginal States. The note to the latter “rights section refers secured the Constitution and laws” of the United States. Slaughter-House See Cases, Wall. (dissenting 96-97 opinion of Field, J.). *10 re-enactment, in the solely with concerned tions were the Finally, 1866 Act. the expanded form, of somewhat Rights comparable Civil of 641 to laws § limitation man- relatively narrow comports of 1866 with Act revise, simplify, commissioners “to revising of date States, of the all statutes United arrange, and consolidate which shall be general permanent nature, their may the final commissioners make force at the time such 140, 14 of c. report doings.” their Act June Stat. We model for the conclude, therefore, that the rights” phrase “any providing law for . . . civil 641 was the of 1866. Civil Act legislative history clearly Act indi- of the 1866 category cates that Congress protect intended a limited rights, specifically equality. defined terms of racial As originally proposed in Senate, 1 of the bill that became the Act phrase did not contain “as en- is joyed by white phrase citizens.” was later added That in committee in the House, apparently to emphasize racial being character the rights protected. More important, bill did general Senate contain a provision forbidding “discrimination rights in civil or immunities,” preceding specific enumeration of rights to be included §in l.16 Objections were raised the legislative de- bates to the breadth of of racial equality that might be encompassed by a prohibition general so against one “discrimination in or immunities!” There sharp was controversy in the Senate,17 but bill passed. After similar controversy in the House,18
15Cong. Globe, Cong., 39th Sess., p. 1st 16 Ibid. 17See, g., id., e. (remarks at 476-477 of Senator Saulsbury); (remarks 505-506 Johnson). Senator g., id., e. 18See, at (remarks 1121-1122 Representative Rogers); (remarks Representative Thornton); (remarks 1271-1272 Representative Bingham). phrase striking accepted amendment an however, bill.19 from the avail- material historical basis
theOn providing law “any phrase conclude we able, *11 mean to be construed must rights” civil equal for . . . rights stated civil specific for providing law broad defendants’ Thus, equality. of terms racial Due Amendment First under contentions cannot Amendment Fourteenth Process Clause because § under for removal claim a valid support in terms of phrased are of clauses those guarantees citizens, persons all available to general application equality of racial language specific than rather for Appeals Court of As the § 1443 demands. “applies only to concluded, § has Circuit Second granted equality in terms of and not to rights are rights . . .” “When gamut of constitutional . the whole ‘any providing of law for speaks the removal statute it refers to those laws that are couched in equal rights,’ equality, equal terms of such as historic and the recent distinguished from statutes, laws, of which the process § due clause and 42 S. U. C. are sufficient examples, that confer equal sense, vital to way life, bestowing upon our them all.” New York Galamison, 342 255, 269, F. 2d 271. See also Gibson v. Mississippi, 162 565, 585-586; Kentucky U. S. Powers, 201 1, 39-40; City U. S. Greenwood v. Pea- cock, post, p. 825.
But present defendants case did not rely solely on these broad constitutional claims in their re- moval petition. They also allegations made calling into play the Civil Rights Act of 1964. That Act is clearly a law conferring specific right of racial for equality, Bickel, Original See Understanding Segregation and the Decision, 69 Harv. L. (1955). Rev. 11-29 enjoy- equal “full and guarantees all the it (a)
201§ public accommo- any place of the facilities ment” ground race.20 on the without discrimination dation pro- “law qualifies as a plainly language the Act By that meaning of rights” within the equal . civil viding for . . (1). 28 U. S. C. as the right relied is clear
Moreover, providing a law “right is a under” for removal basis fairly be may rights. The removal equal brought will to trial allege the defendants be read service solely peaceful attempts as the result of obtain public places at accommodation.21 The Civil Act of 1964 endows the defendants with a prosecuted (a) such As noted, conduct. guarantees to the they defendants access sought. Section 203 provides person then that, “No *12 (c) shall . . punish . or attempt punish person for exercising or attempting to exercise any right or privilege secured section 201 or (Emphasis 202.” supplied.) 78 City Stat. 244. Hamm v. Rock of Hill, 379 S. 306, U. 311, the held this section that of the Act “prohibits prosecution any person of for seek- ing service in a covered establishment, because of his race (a) provides:
20Section 201 persons “All shall be entitled to equal enjoyment the full and of goods, services, facilities, privileges, advantages, and accommo- any place public dations of of accommodation, as defined in this section, segregation without or discrimination ground on the race, color, religion, or origin.” national 21Section 1446 requires of Title 28 petition that a removal con plain tain “a short and statement of the facts” purportedly that justify petition removal. The instant requirement. satisfies that petition Since predated the enactment of 'the Public Accommo dations Title Rights of the Civil 1964, Act of it could not have explicitly alleged coverage under facts, that Act. It however, recites application invoke appeal. of that Act on See United States Peggy, Schooner 103; City Cranch Hamm Hill, Rock 306; U. S. Walker, Linkletter v. 618, U. S. 627. are in the alleged if the facts Hence, or color.” from conviction immune only are defendants true, “right they but statute, trespass Georgia under not even of 1964 Act Civil under” Georgia courts. in the charges on these trial brought within whether then, remaining, question The “denied or are defendants (1), §of meaning Georgia. of” the courts “in enforce” cannot consideration only after be answered can question That requirement. this history of judicial legislative removal first civil adopted the Congress When it incor Rights Act Civil 3 of the §in provisions estab for removal procedures by reference porated Act Suspension Corpus Habeas 5 of the lished in section, turn, permitted latter 1863, 12 Stat. stage proceedings pre-trial at the either removal court.22 final judgment or after state court removal post-judgment be no There can doubt invoking rights defendants remedy for civil practical cannot enforce” clause or either the “denied authority” pro of the 1866 removal “color of clause actually that had vision, order to vindicate pre-trial re scope been at the trial.23 The denied moval, however, was unclear.24 provisions Corpus Suspension of 5 The relevant of the Habeas Appendix
Act of 12 Stat. are included in the to this respects opinion. Section of the 1863 Act was amended certain May 11, the Act of 14 Stat. 46. *13 23 authority” Rights “color of of clause the Civil Act of 1866 assisting City was limited to officers and those them. See federal of Peacock, post, pp. addition, Greenwood v. 814-824. In federal officers might or also invoke the “denied cannot clause. enforce” 24 large agents poten In view of the of federal officers numbers and tially Rights involved in enforcement activities under the Civil Act City 1866, Peacock, post, pp. pre of 816-820, see Greenwood v. of utility trial removal would have been of obvious under the “color authority” Rights of of of clause 3 the Civil Act of 1866. Cf. § Davis, (removal 257, Tennessee v. 100 U. S. under 643 of 261-262 §
795 removal when Congress post-judgment eliminated of 1874.25 The Statutes § 641 of the Revised enacted coincided with of Revised Statutes compilation Mittward, Hodgson Cas. 1874); of Fed. the Revised Statutes Pa.)) (removal (No. (C. of the Habeas E. D. under C. § Suspension 1863, 756), approved Braun Corpus of Act Stat. Sauerwein, pre-trial No role for such obvious Wall. “denied enforce” clause. removal is evident under the or cannot history legislative of Act of The obscure of the Civil §3 only Congress did that the not intend indicates Reconstruction language cannot of to be the “denied or enforce” clause §3 possible message accompany- to its fullest his veto read extent. In ing broadly the bill President Johnson construed the clause so as to give jurisdiction affecting person the federal courts over all cases a who denied was the various conferred whether question right particular or not the in issue For case. example, in view, President’s a state court defendant under happened murder, indictment for who denied contractual right under would be able to his remove case trial in urging passage federal court. bill over the President’s veto, Trumbull, manager rejected Senator bill, the floor of the President’s construction of the “denied or cannot clause: enforce” objects “The President to the third section the-bill .... [H]e jurisdiction gives insists affecting persons to all cases dis- [that it] provided against, criminated in the first second sections bill; a strained construction the President seeks to divest courts, 'only jurisdiction State particular case where party is against, discriminated affecting but of all cases him or might which affect him. is meaning This not the of the section. already I have shown, in commenting on the second section of the bill, person no penalties is liable to its except the one who does an act which penal; is made is, deprives another some to, that he is subjects entitled punishment him to some that he ought not to bear. “So in jurisdiction reference to this third section, the given is the Federal courts affecting of a case person discriminated against. Now, necessarily he is not against, discriminated because may there be a custom community in the discriminating against him, Legislature nor may because a passed a statute discriminat- ing against him; that validity statute is of no if it comes in conflict *14 796 During Reconstruc- period. of the Reconstruction
end Rights Act of Civil 3 § removal under itself, tion Congress by established measure but one 1866 had been rights statutory of the numerous for the enforcement In other Amendments. War Civil created under relatively more drastic Congress had taken enactments, of the by the end rights.26 But those enforce steps to presumed States; it is not to be and of the with a statute United statute a would hold a judge of a State court was valid discriminating against person of color a on- account State it was the United States with which a statute of when there was in which a would not therefore rise conflict, and the case in direct tested, then if the party against until it was discriminated was right a to remove it valid he would have discrimination was held right undertaking in a if to enforce his or, to a Federal court — go right, he into the was then could State court he denied court; every person would but it no means follows that Federal go in the first instance to the Federal court because discriminating there of the State a law was on statute-book being against presumption judge court, him, the case, would, act when he came to obedience paramount States, hold the statute to be law United State Cong., p. Cong. Globe, Sess., invalid.” 39th 1st 1759. Blyew States,
Cf. United 581. It is clear that Wall. Senator person against” reference a ref- Trumbull’s to a “discriminated person rights erence to a who is denied his under the bill within meaning of the “denied or cannot enforce” clause of See § Cong. Sess., Globe, Cong., p. 39th 1st 1870, this Court invalidated under the Seventh Amendment
post-judgment respect jury. removal with to civil cases tried Murray, Rains, The Justices Wall. 274. See also McKee v. Wall. 22. 26See, g., amendatory e. Act Freedmen’s Bureau § July 1866, 176, virtually re-enacted, which Stat. iden States, tical for the terms unreconstructed Southern granted 1 of the provided Civil Act of jurisdiction military enforcement those under the 2, 1867, tribunals. See also 1 of the Reconstruction Act of March military 14 Stat. which divided the rebel States into five dis placed tricts and them martial under law. *15 had ex- many of these measures period,
Reconstruction removal, Con- eliminating post-judgment and pired, original civil substantially truncated gress had but retained, was Pre-trial removal provision. removal It never clarified. provision had been of the scope setting the Court examined that historic was this commencing with In series of cases § a scope of Rives, Virginia v. Virginia, supra, West Strauder v. Term, the same the 1879 day on supra, decided relatively area narrow, a well-defined Court established be pre-trial removal could sustained under which or cannot enforce” clause that section. “denied Strauder, petition Negro In removal of a indicted a pointed Virigina murder to West statute that persons grand white male on a permitted only serve petit jury. Negroes from jury Since were excluded pursuant statute, service that the defendant claimed “probabilities” great were that he would suffer right a denial of his “full benefit equal of all proceedings laws and in the State West Vir- ginia. . . .” S., 100 U. at 304. The state court denied removal, however, and the defendant was convicted.27 1874, petition In for removal could be filed in the state court proceedings which pending. were Rev. Stat. If the state §641. court removal, denied preserved determination could be review this Court on review of judgment the final of conviction. An procedure alternative petition was also A available. could be filed in the federal trial court to which the state court had denied Virginia removal. See Rives, 313; Virginia Paul, 100 U. S. 107, U. S. procedure removal simplified. is now filed in the first instance in the federal court. After given notice is parties to all adverse copy peti and a of the tion court, filed with the state is effected and state court removal proceedings cease unless the case is remanded. 28 U. S. C. (1964 ed.). See generally, Study American Law Institute, Division of Jurisdiction Between State and Courts, Federal Tentative 4, p. Draft seq. No. (April 153 et 1966). have been should removal pre-trial held Court This appeared § language because, granted would denied trial defendant even before “lawaby himto right secured not enforce or could specifi- The law rights.” . . for . providing of the Revised §was by the invoked cally law, the Court That § 1981. S. C. Statutes, now U. defendant held, conferred ground on the discrimination without jurors his selected between the West of the direct Because conflict race. held 1977, the Court in Strauder statute and Virginia *16 of “a be the victim denial would that defendant S., at law of the State.” 100 U. by the statute Rives, Virginia however, In the defendants could point to no such state statute as the basis removal. petition alleged strong Their racial community prej- that against grand udice existed them, petit jurors try summoned to them were all white, Negroes had never been allowed to serve on county juries in cases in which Negro involved in way, and that judge, prosecutor, and prosecutor the assistant rejected had all request their Negroes be included in the petit jury. Hence, the defendants maintained, they could obtain a fair trial in the state But court. only Virginia relevant statute to which the petition referred imposed jury duty on all within males a cer- tain age range. Thus, the law of Virginia did not, on its face, sanction the discrimination of which the de- fendants complained. This Court held that stated ground no for removal. Critical to its holding was the Court’s observation that § 641 of the Revised Statutes authorized only pre-trial removal. The concluded:
“the denial or inability to enforce in the judicial tribunals a State, rights secured to a defendant by any law providing for . . . equal rights . . . speaks, primarily, which sect. 641 is not exclu- if
sively, rights, inability a denial of such or an or them, resulting enforce from the Constitution State, laws rather than a denial made first manifest at the trial of words, the case. other legislative the statute has reference to a denial or inability resulting an Many from it. such cases might denial been apprehended, have some might men been, they existed. Colored have might had a trial been, by jury. They have denied lawby been excluded from any jury summoned try persons of race, might their law denied to them testimony colored men favor, summoning their or process for . . witnesses. . In all oath, such on affirm, cases defendant can trial, protection before that he is denied or equality rights. laws of civil But in the absence or legislative impediments of constitutional he cannot swear his before case to trial that comes enjoyment his all his civil denied to him. When he has an only apprehension that such will be from withheld him when his case shall come to trial, he affirm they cannot are de- actually *17 nied, or that he cannot enforce them. Yet an such is affirmation essential right to his to his remove By case. the express requirement his the statute petition must forth set the facts which he bases his claim to his case removed, merely not and his belief that he rights cannot enforce his aat sub- sequent stage of proceedings. The statute was not, therefore, intended as a corrective of or errors wrongs by judicial committed in tribunals the ad- ministration of the law at the trial.” S.,U. at 319-320. acknowledged
The Court though that even Virginia’s did statute not authorize in jury discrimination selection, might nevertheless charge the selection the officer it about. bring in vio- State, officer of the when a subordinate
“But accused deprive an to law, undertakes lation State law accords which the statute right of a party hardly be can said that bar, case it at him, tri- judicial ‘in the enforce, cannot denied, or he is him. belong which of the State’ the bunals will the court ought presumed be a it In such case S., 321-322. wrong.” 100 at U. redress Strauder: distinguished the situation gives the “It is be observed [§ 641] denied, cannot ‘who is or person to a only removal his judicial State tribunals enforce, before trial. rights.’ appear this is to And right, his or inter- a of the State denies When statute tri- enforcing judicial in the it, a to his poses bar be they is will bunals, presumption fair that a and in such decisions; their controlled neces- affirm on oath is may case a defendant what clearly for a removal. Such a case is within sary (Em- at S., 641.” 100 of sect. U. provisions in original.) phasis Rives
Strauder teach that removal thus a warranted an assertion that denial equality may place go trial. take uncorrected at predicted by Removal is warranted if it only can general application reference to law of that the defend- ant will be specified denied cannot enforce the federal rights in the state A authorizing courts. state statute the denial affords an ample prediction. basis for such
The doctrine announced in Strauder and Rives Delaware, in Neal amplified and Bush S.U. Kentucky, S. 107 U. cases, both the Court *18 reversed convictions on ground jury that selection dis- policy ato pursuant conducted racial been
had also held that cases the in both crimination. Yet alleging such discrimination petition removal pre-trial re- petition In Neal removal. ground no stated adopted provision, constitutional a Delaware upon lied and Fifteenth Fourteenth prior to the advent discrimina- sanctioned Amendments, purportedly that in which the Delaware court selection. But tory jury subsequent held had been filed petition that Hence, provision state void. rendered the Amendments Strauder, of the no law unlike the Neal case involved prediction State which found a suitable rights of would be equality denied the courts Bush, State. upon Kentucky relied jury exclusion statute drawn along racial lines had been after adoption enacted of the Fourteenth prior Amendment. But trial, to Bush’s Kentucky Appeals Court of had held, in case, another statute was This unconstitutional. Court noted that judicial was binding upon declaration all inferior Kentucky courts and concluded that, “After that deci- sion, long so as it was unmodified, could properly been said in advance a trial that the defend- in a ant prosecution criminal was denied or could not enforce judicial tribunals of Kentucky rights secured to him by any law providing for . . . equal civil .. . .” 107 S.,U. at 116. In both Neal and Bush, then, the Court held that in the absence aof presently effective state law authorizing the predicted denial, the state court was the proper forum for the resolution of the claims of equality would be denied, even though, as the Court also held, the state courts had ultimately failed to correct the denials that in fact place took at the defendants’ trials those two cases.
802 involving claims of also subsequent decisions,
Four
prin-
selection, reiterated the
jury
discrimination in
racial
Rives,
amplified
in Strauder
ciples announced
case decided
and Bush.28
The final
Neal
in
removal
Powers,
In
Kentucky v.
201
1.
that
U. S.
this Court
alleged
political
on a
which involved
discrimination
case,
undergo
trial,
fourth
to
his
the defendant was about
basis,
ver-
prior
on
after three
appeal
successful
having been
predic-
his
enhance
guilty. He
therefore
dicts
could
instances
pointing
rights
be denied
to
tion that
would
against him.
prior proceedings
in
illegality
the three
in the cases
those
petition
But the
removal resembled
for
no
pointed
in
state
Strauder
followed
that
that
Accord-
predicted denial.
enactment
that authorized the
Strauder-Rives
this Court
restating
doctrine,
ingly,
no
had been made out.
held that
case
removal
Powers,
cases from Strauder
line of
the Court
641
That
of the Revised Statutes
interpreted
us,
in modified
as 1443.
form,
has come down
statute
subsection,
first
statute
present
removal
But
its
requires
petitioner
still
a
be one who “is denied
or
in the
of” a
he
cannot enforce
courts
State the
case
by removing
seeks to vindicate
to federal court.
suggestion
is no
stat-
There
modifications
change in
ute
1874 were intended to effect
since
Hence,
purposes
present case,
substance.
dealing
we
are
with
same statute that confronted the
29
interpreting
in the
641§
cases
28
Mississippi,
565;
Mississippi,
162
Gibson v.
U. S.
Smith v.
592; Murray
Louisiana,
101;
v.
U. S.
163 U. S.
Williams v.
Mississippi,
Louisiana,
170 U.
213. See
Dubuclet
S.
also
v.
550;
Cobb,
Schmidt
U. S.
v.
U. S.
Kentucky
Powers,
Since
U. S.
the federal courts have
applied
deny
consistently
the. Strauder-Rives doctrine to
removal in
variety
See,
Kentucky
g.,
Wendling,
e.
circumstances.
consistently applied
doctrine,
The Stmuder-Rives
allege,
removal
cases, required
these
all
be denied
equality
would
merely
take
the denial would
but
enforced,
be
could not
re-
also
courts of the State.
doctrine
place
expression
a formal
quired that the
manifest
denial
*20
It
two ends.
requirement
of state
This
served
law.
only in cases
ensured
removal would be available
that
clarity
with relative
predicted
appeared
where the
denial
prior
prediction
It also ensured that the task
trial.
analysis
a
would not involve
detailed
a federal judge
disposition
likely
particular
federal claims
particular state
only
courts. That
task not
have
would
difficult,
been
but
it also
would
involved federal
judges in
unseemly
process of
their
prejudging
(C.
F. 140
Ky.);
(D.
C. W. D.
White v.
The Court some indication that removal might be justified, even of discriminatory absence enactment, state if an equivalent basis could be shown for an firm equally prediction that the defendant would be “denied or cannot enforce” the specified federal in the state court. Such a prediction basis for exists *21 the present case.
In the narrow circumstances of this any proceed- case, ings in the courts of the State will constitute a denial the by conferred Rights the Civil Act in construed Hamm City Hill, v. Rock if allega- the tions of the petition removal are true. The removal in alleges, effect, that the defendants refused to leave public facilities of accommodation, when ordered solely do so for racial reasons, and they that are charged Georgia under a trespass statute that makes it a criminal offense to obey refuse to such an order. The Rights Civil Act of 1964, however, as Hamm City Hill, Rock S. 306, U. made clear, protects those who obey refuse to such an only order not from conviction in state courts, but from prosecution in those courts. emphasized Hamm precise the terms of (c) § 203 that prohibit any “attempt punish” persons for exercising rights of equality conferred them by the Act. The the conclusion compelled section that
explicit terms to or re gain admittance attempts “nonforcible that immu Act, are covered main in establishments S., .” 379 at 311. . . . U. prosecution nized from right for a Act therefore “substitutes crime.” The 1964 present if as Hence, alleged at 314. S., 379 U. were asked to leave petition, removal defendants for racial then the solely reasons, pendency mere prosecutions enables the the clear federal court to make prediction that defendants will be “denied cannot right enforce the courts of State” the to be free [the] of any “attempt punish” protected them for activity. It is no answer in these circumstances defendants might eventually prevail in the state court.30 The bur den of having to defend prosecutions is itself the de nial right of a explicitly Civil Act conferred of 1964 as City Hill, Hamm Rock construed supra.
Since the Federal District Court remanded present case without a hearing, yet the defendants as have had no opportunity to establish they were ordered to leave the restaurant solely facilities for racial reasons. If the Federal District Court finds allegation true, defendants’ to removal (1) under will be clear.31 The Strauder-Rives doctrine requires no more, for the denial courts of the clearly State then the. appears any without detailed analysis of likely be- havior of particular state court. such Upon a find- ing it will apparent the conduct of the defend- pointed separate As opinion out Judge Bell in the Appeals Court of Circuit, for the Fifth 336, 343, F. 2d *22 Supreme Georgia Court of has in applied at least one case the doc City trine of Hamm v. Rock Hill to set aside convictions under trespass the state Georgia, statute. Bolton v. 632, 220 Ga. S. E. 2d 866. 31In addition to allegation, their racial the defendants must also show that question restaurant facilities in were establishments Rights covered the Civil Act of 1964. prosecution” court, from “immunized ants is must then sustain the removal District Court the Federal prosecutions. and dismiss the reasons, judgment
For these Affirmed. facing see opinion Court, Appendix [For page.] whom The Chief Douglas, with Jus- Justice
Mr. and Mr. Fortas Brennan Justice Justice tice, Mr. concurring. join, my cases, post, the Peacock opinion
As I indicate
citizen of the
States
of a
United
p. 842, equal
meaning
(1)
of 28
C. 1443
are “denied” within
U. S.
ed.)
prosecuted
asserting
he is
them.
(1964
when
(78
Section 201 of the Civil
Act of 1964
Stat.
(1964 ed.)) gave
S.. C. 2000a
U.
these defendants
service in
places
public
accommodation.
(78
(1964
Stat.
S. C. .§
Section
U.
2000a-2
ed.)) gave
right against
them a
intimidation, coercion,
punishment
exercising
rights.
those
And we held in
Hill,
Hamm
City
Rock
S.
U.
that §§
precluded
and 203
criminal trespass
state
convictions
though
sit-in
even
the sit-ins occurred
demonstrators
*24
to the
prior
had been instituted
prosecution
and their
1964 Act.
effective date
words, gave
Congress, in other
these defendants
question,
there,
sit
right
to enter the restaurants
to
right
this
be served —a
construed
after the
immunity
prosecution
include
from
prior
of the Act for
done
thereto.
effective date
acts
right
It
service
is
restaurants
asserting
right
prosecution
right—
to be free
right
not
conviction
trespass
to have
reversed —that
present
right
is
which
prosecutions
threaten.
It
this
from
complete
must be vindicated
insulation
it is
process
wholly
State’s criminal
if
vindicated.
long
It
this
which the defendants are “denied” so
present prosecutions persist.
as the
Georgia
City
Hill,
claims that Hamm v.
Rock
supra,
does
cover cases of
prosecuted
disorderly
sit-ins
conduct or other unlawful
Of
acts.
course that
is true.
But one
the functions of the hearing
allegations
on the
*25
the removal
will be to
whether the
determine
defendants
ejected
were
on
grounds
racial
some
other, valid, reason. The Court Appeals
correctly ruled
that “in the
it is
event
established that
the removal of
the appellants from the various
places
public accom
modation was
reasons,
done
then
racial
under au
thority of the Hamm case it would become the duty of
the district court to order a dismissal of
prosecutions
without
further proceedings.”
If service was denied for other reasons, no case for removal has been made out. And as is if, intimated, any doubt remains as to whether the restaurants in ques- tion were covered the 1964 Act, too should left open in the hearing to be held before the District Court —a procedure to which the defendants do not object.