Michael Lefton v. The City of Hattiesburg, Mississippi

in Hat- 40-odd were arrested Benjamin Smith, April Waltzer, tiesburg, Mississippi, on 10. Ac- E. Bruce C. cording petition: La., Kunstler, Orleans, New William sworn removal M. City, York Jack Kinoy, New Arthur “Petitioners are members La., Orleans, petition- Peebles, New Coordinating Student Non-Violent ers. Committee, affiliated with Con- Organizations, ference of Federated RIVES, BELL and Before WRIGHT* Rights groups, and Judges. both Civil Circuit engaged arrests, at the time their rеgistration Judge: in a in For- J. drive WRIGHT, SKELLY voter Circuit assisting County, Mississippi, rest Negroes This involves the access of register so as enable litigants to for- the federal courts. Over protected them to the1 vote ty prosecutions defendants in criminal Federal and the Civil Constitution Mississippi in a state court of seek to Rights [statute].” into the remove the causes District United States April peti Court under U.S.C. 1446. On filing by clеrk District the United States tion was refused the District following through of Mis- clerk, for the Southern District its for the acting rules, sissippi, under "local court asons. re sitting by D.C.Cireuit, designation. any county municipal government Of the or lo- or with the transaction cated therein public prohibit picket 1. “AN the unlawful jus- ACT or administration business ing buildings, pub courthouses, of state or or conducted so as tice therein thereоn streets, lic and sidewalks. free or interfere with use of obstruct by Legislature public, “Be it enacted public streets, or other sidewalks Mississippi: ways adjacent contiguous State of or thereto. guilty Any person It shall be “Section unlawful vio- “Section singly person, lating guilty .or in concert with shall be deemed this act others, engage picketing and, upon or mass a conviction misdemeаnor thereof, than demonstrations such manner fined not more Five shall be ingress impris- ($500.00), with free or obstruct or interfere or Hundred Dollars egress any public jail (6) months, premises, to and from oned not more than six county property, municipal imprisonment. or both State courthouses, fine and city halls, buildings, office act shall take effect “Section 3. This buildings jails, public pas- prop- after its оr other and be in from and force sage.” erty by Mississippi owned the State of petition filed, <1) petition was in behalf of to have filed April individual. court on more than one under Rule 13a.2 We authority have under Rule 13a to order accompanied not (cid:127)(2) It was that the District a re be made per fee of individ- $15.00 spondent proceedings in these mandamus ual. and to fix a time for him an an to file accompanied <(3) a re- It was not judicial swer. Out of deference to decor per indi- moval bond of $500.00 however, um, so, we or do but did vidual. dered ‍​‌‌‌‌‌​‌​​​​‌​‌​​​‌​‌‌​‌‌‌‌‌‌‌‌​‌​‌​‌​‌​‌​‌‌​​​‌‍for mandamus signed by '(4) It was mem- abeyance permit peti be held in ber the bar the Southern tioners to take such further action in the Mississippi. District of they District Court advisable, deemed supplemental papers or to file us. with Pеtitioners’ Petition “Alternative seeking Mandamus,” Tor a time, Writ of to At the same we also a per issued require judge District Court setting forth the considerations curiam 2. Rule of this court reads: 13a given preference be shall ordinary “(a) Writ; civil over eases. Service and Petition “(c) Papers; Filing. Application Form of Number for a writ man- papers Copies. may typewritten. prohibition All be damus or of directed to a copies, including original, judges by filing judge Four an shall or shall be made a clerk, may petition be filed but the clerk copies therefor with the clerk with provid- proof respondent judge direct that additional of service on the n or judges parties ed.” and on all to the action petition in the district court. The shall per 3. The curiam reads: -contain a statement of the facts neces- application “This is an for writ of man- sary understanding to an of the issues damus, seeking to secure the presented by application; a statement petition removing District Court a a presented (cid:127)of the issues and of the relief City number of criminal causes from the sought; why a statement of the reasons Hattiesburg, Mississippi, Court of to the extraordinary writ of or mandamus District under 28 § U.S.C. prohibition issue; copies should and petition alleges that the District (cid:127)any opinion parts or order or of the clerk, acting Court court, under local rules of may record which be essential to an un- refused to file the criminal re- n derstanding of the matters set forth in petition (1) moval for these reasons: petition. petition may be accom- It was in behalf of more than in- one panied by supporting brief or memoran- (2) dividual. It did not have attached n receipt Upon prescribed dum. bond of $500 for each. We note pe- docket fee the clerk shall docket the Congress provided that has in the re- tition and submit it to the court. moval statute that ‘A defendant or de- * ¤ “(b) Denial; Directing * desiring Order Answer. to remove fendants n If * * * оpinion prosecution the court is of the that criminal shall file a * granted, deny should writ not be it shall U.S.C. § petition. Otherwise, 1446(a) (emphasis it shall added). order The statute that an answer provides only be filed also for removal bonds '.by respondents within the time fixed 1446(d). civil cases. 28 § U.S.C. by the order. The order shall be require- served Reviser’s Notes state: ‘[T]he judge judges the clerk on the or named ment for cost bonds is limited to civil -.respondents parties and on all conformity other actions with the more en- par- lightened the action in the district court. All procedure trend of modern n ties other than the petitioner unnecessary shall also impediments remove all respondents judge -be deemed with the justice.’ the administration of criminal .judges respondents pur- named for all U.S.C.A. 1446 Notе. The stated n poses. Respondents may jointly. grounds file, answer for refusal to whether judge judges respondents If named court, local authorized rule of would n petition, they do not desire to improper gov- contest the thus seem to be under the parties by erning Congress. so advise the clerk and Act of thereby letter but the shall not before us also recites '.be taken as admitted. If ‘petition briefs are re- that the criminal removal did -quired, parties signature the clerk shall attorney advise the not contain the of an n ofthe dates on which they practice are to be filed. licensed to before the United ceedings making under federal removal stat- our decision us in moved Mississippi process immediately because the ute charged officials have invoke petitioner individually pe- each and that the Thus we intended 13a. Rule separately. question Since involves Court have District and titioners interpretation statute, of a advantage matter so of our views accordingly. promul- law nor neither state local they rules Subse- act could gated by provide supple- the District Court can quently, have filed the answer. in this pleadings affidavits mental court, copies sent have been of which On face its the removal author- Judge prosecution and the the District prose- “criminal izes the removal below; has District favored court,” irrespective cution from a State points author- us with memoranda desiring the number “defendants copies ities, which have sent been speaks remove.” The statute in tеrms petitioners’ counsel. single prosecution more with one or language defendants. unnecessary Thus the formal In to render order strictly statute, interpreted, seem would mandatory 13a, procedure Rule it require separate petition remov- expression of our that a fuller every prosecution. al for governing may state criminal understanding law appropriate. consider We shall

now be rights however, cases, In civil the reasons advanced of seriatim each Congress has directed courts the federal accept District Court refusal to the law, to use that combination of federal filing. petition for the removal law, common and law be state as will “adapted object” best to the theeivil I. rights (1875), laws. Rev.Stat. 722 § the number referеnce to With Rev.Stat.; applying XIII, 42 to Title single may join peti persons in a who 1988; 1443, for 28 U.S.C. U.S.C. § § see provides: tion, removal statute merly (1875); 42 Rev.Stat. 641 U.S. § “A defendant or defendants de- C.A. 1988 Note. Therefore a § * * * any siring crim- to remove required court is to common law use prosecution court inal from State powers hinder, facilitate, to and to not * * * “ file shall * [proceedings of civil ixx vindication ” ** 1446(а). 28 U.S.C. § I'ights.” facilitate, 42 To U.S.C. 1988. § primary question presented “proceedings in hinder, and not to in vindi proceedings rights,” 40-odd these whether the cation of civil the circum petitioners case, who arrested at same think it would stances we charged ‍​‌‌‌‌‌​‌​​​​‌​‌​​​‌​‌‌​‌‌‌‌‌‌‌‌​‌​‌​‌​‌​‌​‌‌​​​‌‍place and with violat- appropriate time and quite for a District be ing required joint statute are to accept same state here removal to bring pro- separate, individual removal presented. in ity assume states District Southern District We cannot local counsel. Mississippi, required by unavailable, that, local rules are if local counsel 1940,’ promulgated March and ‘That close its doors would District Court bringing attorney, litigants this removal ac- who is individuals or their these attorneys tion and their are unable ob- tо States member United supplemental tain the assistance association of affidavits bar. Court showing Unless and/or any attorneys, date, contacted to to assist case should this to be in fact the appear presented us, in this matter.’ It does not wheth- no oc- we would have be to ground grant er this was an additional for re- to the writ. casion petition. abey- applicаtion § fusal 1654; to file the See 28 U.S.C. in will be held Jeary, Cir., jurisdiction days F.2d Brasier 8 256 will ance for fifteen and (1958); Ginsburg, Cir., Applicant may supple- 474 Kovrak v. file be retained. affidavits, 280 F.2d 209 It also does not mental take such further appear sign attorney whether who did he action the District Court as deems requested papers had admission to If no further have advisable. pro vice, period, the District Court bar hаo been filed within the indicated waiver of the rule of unavailabil- because will be denied.” however, conformity present record, tions lightened On the with en- more procedure to so District Court declines do if the trend modern separate petitions, unnecessary fur impediments remove all insists assuming requirement justice.” such a that administration ther criminal delay operate 28 U.S.C.A. sо matters as to does not Note. § Therefore such may deprive required. ac bonds effective not be courts, we cess the federal would IV. gross requirement such a find the be to man of discretion as to move us abuse The District Court has a broad decision We commend this damus. concerning prac discretion admission to of the District Court. informed discretion tice But, it. See 28 U.S.C. cоurse, rules allowed II. operate way abridge in such a as to Filing fees not to are be collected right litigants class to use peti criminal connection with deny federal courts toor the Sixth regulated by Such are stat tions. ute, fees right Amendment of criminal defendants comparison present and a stat Generally, counsel of their choice. predecessor ute with its shоws there they may, necessary, courts if deem it authority no is now charge for the clerk to require that local counsel be associated proceedings. fees in such litigation way in some the local courts. Piorkowski v. Arabian provided The former for fees Cf. Company, American Oil S.D.N.Y., proceedings: 131 F. criminal Supp. (1955). However, Dis “Upon institution of suit commendably trict below has by оriginal proceeding, whether noted, if no available, local counsel are process, removal, indictment, infor- requiring a court rule local counsel otherwise, mation, or shall be there should Moreover, waived. be where local paid by party parties the or so insti- ** counsel associated in are the case to tuting proceeding such suit comply rulеs, with court non-local counsel sum the Former 28 U.S.C. $5.” of by parties may chosen the nevertheless (1940 ed.). 549§ argu take the lead in direction and the present statute does authorize of ment the case. See v. United States proceedings: fees criminal Bergamo, (1946). 3 154 Cir., F.2d 31 clerk of each district court Federal as well as state courts require instituting parties shall the guided must be in this matter of local any action, proceeding civil suit or by rules the recent decisions of the Su original by court, whether preme concerning regulation Court of pay process, otherwise, removal to attorneys. * * Court “A has said that filing 28 fee $15 not, by invoking power State could to- ed.). (1948 U.S.C. 1914 regulate professional conduct of at infringe torneys, any right III. way public fairly individuals and the represеnted to be Congress providing Act of by in lawsuits authorized removal bonds does not authorize for Congress public to effectuate a in basic them criminal cases: terest.” Train of Railroad Brotherhood petition “Each for of a removal Virginia Virginia men v. ex State rel. * * * civil action or Bar, 1113, principle- 84 S.Ct. 1117. This accompanied by shall be a bond applies special force where is a it ” * * * 1446(d). 28 U.S.C. § reg state, federal court, and not a whose If doubt there were to whether as ulations interfere with au lawsuits Congress. this limitation intentional, Re- where, thorized And as require- public here, viser’s Notes are clear: “[T]he basic interest involved is- protection ment for cost to ac- bond limited civil of fundamental -constitu- 443, 343, rights petitioners, courts at 9 L.Ed.2d S. at 83 S.Ct. of the tional tеachings of give special to the heed must permit in- neither unworthy of the Such a situation is them to bar “means nor direct direct proud tradition of bar. We the Southern resorting to vindicate courts from pleased that, are after the to note right legal rights. their affidavit, the above mentioned handicapped.” so cannot the courts judges able District Court were p. And this since Id., at 84 S.Ct. of the secure the names members case, constitutional is a criminal bar them- local available to associate right assistance of the accused original for the selves with the counsel n counsel reinforces choice of his own petitioners herein. It is commendable principle. helped that the District Court secure for fa- the assistance counsеl hand, petition at In the removal practice. miliar with Other- the local likely raise of cases .and in class original had to wise counsel would have “litigation problems, is not similar proceed alone. And it is commendable resolving private technique differ gentlemen of that agreed the local bar have achieving ences; means for it is a lawyers perform their duties as equality objectives of treat lawful rendering such service. federal, government, state ment Negro local, for the members It thus no there is n community country.” why petitioners may N.A.A.C.P. in this reason now file a 328, 415, 429, Button, petitions S.Ct. U.S. 336, prosecutions con In this involved, 9 L.Ed.2d 405 criminal with here brought litigation payment bond, is not text out where fees or and with regulation signatures private gain, local counsel аvailable. practice therefore, “sub must show sufficient No issue, law formal order need designating regulatory interest,” id., stantial 371 U.S. the District ‍​‌‌‌‌‌​‌​​​​‌​‌​​​‌​‌‌​‌‌‌‌‌‌‌‌​‌​‌​‌​‌​‌​‌‌​​​‌‍re 405, jus spondent 328, mandamus, L.Ed.2d .at 83 S.Ct. inhibitory Judge’s tify potential actual the District in memorandum n effectsof the regulation expres on the dicates that he constitu will act an Ibid, litigate. right tionally protected Maryland sion of our views. See v. So- per (No. 2), 36, 44, 270 U.S. 46 S.Ct. reasons, indi For as we these 192, 70 L.Ed. 459 For the rea in and as cated our memorandum earlier stated, herein sons we reserve decision n theDistrict n of Judge agrees, waiver below invoking question 13a(b) on the Rule rules, the bar local or admission to jurisdiction rules, our and retain un when, pro vice, hac allowed should be finally til the matter is settled. alleged, counsel “was non-local herein n unablе [locally] BELL, find admitted counsel GRIFFIN B. Circuit n whowould sign pleadings (concurring specially): him.” with recently has taken concurring In I do wish to add a word .judicial of a circumstance notice similar respect part opinion with one proceeding: .in a not unrelated having joining persons to do with several single petition “* -» in a the removal attacking rae- Lawsuits statute. discrimination, least in cial Vir- at requiring separate wisdom of very profitable nor ginia, are neither seeking for very They each popular. defendant re- not an ob- are among general ject competition facts is made manifest moval Many persons Virginia lawyers; problem are involved. is case. this charged separately in state apparent Each is rather one of аn dearth n developed willing lawyers court. facts as now to un- who are *” * * dispute litigation. that Michael us without indicate dertake style supra, U. Lefton whose name Button, .N.A.A.C.P. v. by juvenile au- ease released this Hattiesburg having in after thorities custody. into He therefore been taken seeking party has is removal as he charged court. never been the state

Moreover, is “Lofton”. his nаme goes saying separate ‍​‌‌‌‌‌​‌​​​​‌​‌​​​‌​‌‌​‌‌‌‌‌‌‌‌​‌​‌​‌​‌​‌​‌‌​​​‌‍It that a without seeking person on behalf each more

removal would tend to effectuate a orderly procedure in the District day and this is the more true requirement should, This mass arrests. against course, be balanced oner- preparing multiple petitions, task of ous Judge Wright this, but it, leaves is (Col Finch, Baltimore, Walter G. Md. procedural something and best left Denny, III, Denny, &. lins and Valentine discretion of the District Court. Davenport, Richmond, Va., brief), on In essence ultimate concern appellant. type matters these involved City Mitchell, (John John A. York New proceedings is to determine Avirett, 2d, Baltimore, Md., W. Robert allegations respect truth of the Curtis, Spille, Partoyan, D. A. Garo and deprivation rights. constitutional Safford, City, Morris & New York on removal statute used brief), appellees. duty thwart local law enforcement. The BELL, BRYAN Before and Circuit. first on falls the state courts and state Judge.. Judges, BUTZNER, and District protect officers to and constitu- accord rights. 6, 3, tional Art. U.S. Cls. and PER CURIAM: Const. It failure or abdication there ‍​‌‌‌‌‌​‌​​​​‌​‌​​​‌​‌‌​‌‌‌‌‌‌‌‌​‌​‌​‌​‌​‌​‌‌​​​‌‍validity pat- gives This involves the case rise to the appellant,. 2,755,371 ent No. issued to the court. Jackson, July 17, 1956, upon Earl R. 1953, a. filed March refrigerators, defrosting of device for cooling systems. deep The- freezers infringement charged complaint the- Inc., patent by Dunham-Bush, At- Great Co., and'. lantic & Tea and Roche Pacific appellees. Inc., Injunction, account- Hull, damages sought. ing Upon the- JACKSON, Appellant, Earl R. patent’s validity and de- issues of the infringement, fendants’ the District. DUNHAM-BUSH, INC., Great & Atlantic against plаintiff Court found Jack- Co., Hull, Pacific Tea and Roche and son and dismissed the action. Inc., Appellees. ground invalidity. affirm on the We No. 9236. view, pass In this we need not the- Appeals United States Court of infringement, question the Dis Fourth Circuit. give in order to trict Court also resolved complete complaint. Argued to the We- April 17, answer adopt opinion as ours the of the District Decided June regard validity of the-

patent. Dunham-Bush, Inc., Jackson v. al., (D.C.Md.1963). F.Supp. et Affirmed.

Case Details

Case Name: Michael Lefton v. The City of Hattiesburg, Mississippi

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 5, 1964

Citation: 333 F.2d 280

Docket Number: 21441_1

Court Abbreviation: 5th Cir.