Thоmas RACHEL et al., Appellants, v. STATE OF GEORGIA, Appellee.
No. 21354.
United States Court of Appeals Fifth Circuit.
March 5, 1965.
Affirmed.
Griffin B. Bell, Circuit Judge, and Whitehurst, District Judge, dissented in part.
Anthony G. Amsterdam, Philadelphia, Pa., Howard Moore, Jr., Donald Hollowell, William H. Alexander, Atlanta, Ga., Jack Greenberg, New York City, for appellants, Melvyn Zarr, Worcester, Mass., Ann Cooper, John Quarles, Jr., Boston, Mass., of сounsel.
J. Robert Sparks, Asst. Sol. Gen., Albert Sidney Johnson, Asst. Atty. Gen., of Georgia, Eugene Cook, Atty. Gen., of Georgia, William T. Boyd, Sol. Gen., Atlanta, Ga., for appellee.
TUTTLE, Chief Judge:
This is an appeal by the named appellant and 19 other persons charged with the violation of Georgia‘s so-called anti-trespass statute, Title 26 Georgia Code Annotated, Section 3005, from an order entered by the district court without a hearing remanding the cases for trial to the state court after they had been removed by a petition for removal filed pursuant to
The question to be resolved on the merits of the appeal is whether the petition for removal in this case adequately stated a basis for removal under the indicated section of the removal statutes.
Ҥ 1443. Civil rights cases
“Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:
“(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;
“(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.”
The meaning of this statute, passed in a package with the first post-bellum Civil Rights Act, Act of April 9, 1866, 14 Stat. 27, has been the subject of debate since its passage. It was originally construed to cover cases in which the defendant alleged his inability to obtain a fair trial due to such informal impediments as local prejudice. State v. Dunlap, 1871, 65 N.C. 491; see also Ex parte Wells, 3 Woods 128, quoted in Kentucky v. Powers, 1906, 201 U.S. 1, 27, 26 S.Ct. 387, 50 L. Ed. 633 (Bradley, J., on circuit).
Later, the view was taken that only formal impediments, stemming from State legislation, could give rise to such deprivations of equal civil rights as would allow a defendant to invoke federal jurisdiction by removal. Kentucky v. Powers, 1906, 201 U.S. 1, 26 S.Ct. 387. As this latter view was the latest Supreme Court pronouncement directly on the matter, the district court in the present case felt bound by it. In remanding the case to the State court, the district court states that “A criminal prosecution or a civil case under this statute [28 U.S.C.A. § 1443] because of a civil right or the enforcement of such right must arise
In delineating the scope of the civil rights removal statute for the first time, the Supreme Court placed great stress on the necessity that the denial of protected rights be made to appear in advance of trial, State of Virginia v. Rives, 1879, 100 U.S. 313, 25 L.Ed. 667. By way of illustration, the Court indicated that denials of equal rights at the hands of court officials, occurring during trial, could not be cured by removal but that such denials under state legislation could be safeguarded against in this manner. It has been argued that, under a realistic appraisal of the facts in a given case, the Supreme Court today would recognize the right to removal under § 1443(1) even where no legislative denial of rights is shown. See Krieger, “Local Prejudice and Removal of Criminal Cases From State to Federal Courts,” 19 St. John‘s L.Rev. 43 (1944); Note, “Local Prejudice in Criminal Cases,” 54 Harv.L. Rev. 679, 685-86 (1941). Such a recognition by the Court thus would reemphasize the putative essence of Virginia v. Rives—that the denial of equal rights must be susceptible of demonstration before trial—and minimize the illustrative language in that case dealing with state legislation.
We have been asked by the appellants to anticipate such an interpretation of § 1443 by the Supreme Court; however, there is no reason for us to reach that question in this case. This is so for two reasons. First, the petition in this case did allege the denial of protected rights by State legislation. Secondly, the passage of the Civil Rights Act of 1964 and its interpretation in Hamm v. City of Rock Hill, 1964, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300, provide a different, and narrower, ground on which this case may be disposed of.
After alleging the specific facts respecting the arrests of each of the 20 persons, including allegations that each of them was, when arrested, seeking food or accommodations at a restaurant or hotel, the petitioners alleged that еach of their acts had been followed by special Grand Jury presentments charging them with violating the named section of the Georgia Code, and that the said presentments were pending in the Superior Court of Fulton County and were to be heard within a few days if not transferred. They then alleged the following:
“(3) By virtue of
Title 28, United State Code Annotated, Section 1443 (1) and (2) , this Court has jurisdiction to hear and try the charges now pending against the petitioners. Removal is sought to protect the rights guaranteed to petitioners under the due process and equal protection clauses of Section 1, Fourteenth Amendment of the Constitution of the United States and to protect the right of free speech, association, and assembly guaranteed by the First Amendment of the Constitution of the United States.“Moreover, petitioners are being prosecuted for acts done under color of authority derived from the constitution and laws of the United States and for refusing to do an act which was, and is, inconsistent with the Constitution and Laws of the United States.
“(4) The petitioners are denied and/or cannot enforce in the Courts of the State of Georgia rights under the Constitution and Laws of the United States providing for the equal rights of citizens of the United States and all persons within the jurisdiction thereof, in thаt, among other things, the State of Georgia by statute, custom, usage, and practice supports and maintains a policy of racial discrimination.” (Emphasis added).
The district court apparently decided that, since the removal petition did not expressly allege that Section 26-3005 was unconstitutional on its face, the petition failed to allege adequately that “the destruction of” the right to equal protection granted by the United
In Allman v. Hanley, 5 Cir., 1962, 302 F.2d 559, 562, this Court said:
“The absence of detailed grounds setting forth basis for removal is not fatal to defendants’ right to remove. We think that the allegation that petitioners were officers acting under color of office in the employment of the United States was sufficient.
Title 28, United States Code, Section 1446 (a) requires only a short, plain statement of facts entitling a defendant to removal.”
This is in line with this Court‘s construction of the Federal Rules of Civil Procedure relating to the liberality of pleadings under the rules. If a petition for removal states sufficient in the way of allegations to support proof of adequate grounds for removal, it is to be treated in the same manner as a complaint in federal court. As to such a pleading, this Court has frequently reiterated what we said in Des Isles v. Evans, 5 Cir., 1952, 200 F.2d 614, 615, in quoting Moore‘s Federal Practice:
“[T]he courts have ruled time and again that a motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim.”
In that case we also quoted from an opinion by this Court in De Loach v. Crowley‘s Inc., 5 Cir., 1942, 128 F.2d 378, 380:
“Under the Rules of Civil Procedure a case consists not in the pleadings, but the evidencе, for which the pleadings furnish the basis. Cases are generally to be tried on the proofs rather than the pleadings.”
We conclude, therefore, that this petition for removal adequately alleged that the appellants suffered a denial of equal civil rights by virtue of the statute under which they were being prosecuted in the State Court. Unless there is patently no substance in this allegation, a good claim for removal under § 1443(1) has been stated. That the allegation does not lack substance may be seen from a consideration of the Civil Rights Act of 1964, as construed by the Supreme Court.
Statutes of South Carolina and Arkansas, substantially thе same as the Georgia statute involved here, were before the Supreme Court in Hamm v. City of Rock Hill, supra. Having upheld the con-
“In short, now that Congress has exercised its constitutional power in enacting the Civil Rights Act of 1964 and declared that the public policy of our country is to prohibit discrimination in public accommodations as therein defined, there is no public interest to be served in the further prosecution of the petitioners. And in accordance with the long-established rule of our cases they must be abated and the judgment in each is therefore vacated and the charges are ordered dismissed.”
In the removal petitions in the cases pending before this Court, it is explicitly alleged that the arrests of appellants “were effected for the sole purpose of aiding, abetting, and perpetuating customs, and usages which have deep historical and psychological roots in the mores and attitudes which exist within the City of Atlanta with respect to serving and seating members of the Negro race in such places of public accommodation and convenience upon a racially discriminatory basis and upon terms and conditions not imposed upon members of the so-called white or Caucasian race. Members of the so-called white or Caucasian race are similarly treated and discriminated against when accompanied by members of the Negro race.” These are allegations of fact, which if true, place these prosecutions by the State of Georgia squarely within the principle announсed by the Supreme Court in Hamm v. City of Rock Hill.
In its opinion, the Supreme Court pointed out that no State may now prosecute Negroes who were charged with having refused to leave premises in accordance with the provisions of the Georgia statute where the request to leave was based upon a policy of racial discrimination. The Court pointed out that Section 203 of the Act provides:
“No person shall (a) withhold, deny, or attempt to withhold or deny, or deprive or attempt to deprive, any person of any right or privilege secured by section 201 or 202, or (b) intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person with the purpose of interfering with any right or privilege secured by section 201 or 202, or (c) punish or attempt to punish any person for exercising or attempting to exercise any right or privilege secured by section 201 or 202.” (Emphasis in Supreme Court opinion).
The Court said, “On its face, this language prohibits prosecution of any person for seeking service in a covered establishment, because of his race or color.” The Court then proceeded to apply this prohibition to pending as well as prospective prosecutions. If therefore, the arrests and prosecutions of the appellants “were effected for the sole purpose of aiding, abetting and perpetuating customs * * * with respect to serving and seating members of the Negro race” in the respective restaurants “upon a racially discriminatory basis,” as alleged,
Because of the Civil Rights Act of 1964, Title II, and its recent interpretation by the Supreme Court, we hold that the allegations of these petitions are sufficient to invoke federal jurisdiction under
From its inception, then, the civil rights removal statute has been, as its language plainly contemplates, an adjunct to the substantive civil rights statutes enacted by Congress. The history of the several codifications and recodifications of sections 1977 and 1978, of the several amendments and enlargements upon these seminal civil rights laws, and of the parallel codifications and recodifications of the removal statute which is presently
Congress, while carving out rights and immunities in the area of civil rights, has provided a jurisdictional basis for efficiently and appropriately protecting those rights and immunities in a federal forum. The provision of this protective forum is not limited by the States’ obligation, under the Supremacy Clause, to protect federally guaranteed civil rights as zealously as would a federal court. That there is such an obligation on State tribunals is true, and vital, but it is irrelevant here. Theoretically, there is no need for any federal jurisdiction at all—except that of the Supreme Court—because State courts are required to protect federally created rights. Nevertheless, the power of Congress to provide a federal forum also to protect such rights is undoubted. Such power was exercised in enacting § 1443(1).
The federally guaranteed right and immunity here pertinent were eluci-
“[T]hе language of § 203(c) supports a conclusion that non-forcible attempts to gain admittance to or remain in establishments covered by the Act, are immunized from prosecution, for the statute speaks of exercising or attempting to exercise a ‘right or privilege’ secured by its earlier provisions. The availability of the Act as a defense against punishment is not limited solely to those who pursue the statutory remedies. The legislative history specifically notes that the Act would be a defense to criminal trespass, breach of the peace and similar prosecutions.”
Under the allegations of the petitiоns in the present case, these appellants have been denied, because of State legislation, “a right under * * * [a] law providing for the equal civil rights of citizens of the United States.” They are entitled to a federal forum as provided for in 28 U.S.C.A. Sec. 1443(1) in which to prove these allegations. If the allegations are proved, then the federal court acquires jurisdiction for all purposes. Under normal circumstances the state prosecutions would then proceed in the federal court. Here, however, the finding of the jurisdictional fact immediately brings the Hamm case into play. The same fact determination requirеs dismissal rather than further prosecution in the District Court.3
Upon remand, therefore, the trial court should give appellants an opportunity to prove the allegations in the removal petition as to the purpose for the arrests and prosecutions, and in the event it is established that the removal of the appellants from the various places of public accommodation was done for racial reasons, then under authority of the Hamm case it would become the duty of the district court to order a dismissal of the prosecutions without further proceedings.
Concluding, as we do, that the petition for removal alleges sufficient grounds showing a denial of the civil rights of the appellants in the state courts by reason of the State statute, it follows that the order of remand was in error and it must be reversed and the case remanded to the district court for further proceedings not inconsistent with this opinion.
Reversed and remanded.
GRIFFIN B. BELL, Circuit Judge (concurring in part and dissenting in part):
I regret that I cannot concur altogether in the opinion of the majority. The reasoning preliminary to the holding therein seems to embrace the following steps. We begin with the jurisdictional base, i. e., the removal statute.
Thus, the majority concludes that the removal petition may fairly bе read as alleging a valid claim for removal under
We should reverse and remand for a hearing on the question of jurisdiction. But, the majority states, and this is where I disagree, that upon remand the trial court should give appellants the opportunity to prove their allegations as to the purpose of the arrests and prosecutions, and in the event the refusal of service in places of public accommodation was for racial reasons, then under the authority of the Hamm case it would become the duty of the District Court to dismiss the prosecutions. If this is all that remains for consideration on remand, the holding of the majority is tantamount to applying Hamm v. Rock Hill in all its sweep against trespass statutes, retroactively to the State of Georgia. It is, in effect, a holding that Georgia has applied and will continue to apply its trespass statute contrary to the teachings of the Supreme Court in Hamm, even though Hamm had not been decided when the cases were in the state courts and even though the state courts have not had an opportunity to deal with these cases in the light of Hamm. In dispensing with the requirement that appellants prove on remand that the Georgia courts will not accord them their rights under the Hamm decision, the theory of the majority must be that Hamm has tainted these prosecutions ab initio, and hence jurisdiction in the federal court has been established retroactively by the very fact that the prosecutions were ever commenced. This casual treatment of the Georgia courts is a striking departure from my concept of Federalism and from the duty which I think comity imposes upon us with regard to that system.
The fact is that the Supreme Court had never, before and absent Hamm and the 1964 Civil Rights Act, held the use of state trespass statutes under the circumstances here presented to be unconstitutional. This was one of the problems that the Civil Rights Act sought to obviate. See the following cases where the question was pretermitted: Griffin v. State of Maryland, 1964, 378 U.S. 130, 84 S.Ct. 1770, 12 L.Ed.2d 754; Barr v. City of Columbia, 1964, 378 U.S. 146, 84 S.Ct. 1734, 12 L.Ed.2d 766; Robinson v. State of Florida, 1964, 378 U.S. 153, 84 S.Ct. 1693, 12 L.Ed.2d 771; Bell v. State of Maryland, 1964, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822; and Bouie v. City of Columbia, 1964, 378 U.S. 347, 84 S.Ct. 1697, 12 L. Ed.2d 894. We recognized this fact in Poole v. Barnett, 5 Cir., 1964, 336 F.2d 267. It is now undoubtedly true that the 1964 Civil Rights Act and the Hamm decision have placed a gloss on state trespass statutes so that they may not be applied against those peaceably seeking
Thus, on remand the District Court should first determine just what appellants do claim under the present allegations of their notice type pleading. If they contend that the statute is unconstitutional in its application to them by the state, by virtue of the Hamm case or otherwise, then the question will arise whether the state in fact seeks to apply the statute in an unconstitutional manner. If it appears, and the burden would be on appellants to show this, that the state will apply the statute contrary to the teachings of Hamm, the District Court should deny remand and retain the cases for disposition; otherwise, the cases should be remanded.
I doubt that appellants can point to any right that would be jeopardized by remand to the state court. The Supreme Court of Georgia has already applied Hamm to a group of sit-in convictions with the result of abating the conviction and ordering the cases dismissed. Bolton, et al. v. State of Georgia, 140 S.E.2d 866, decided February 8, 1965. Such jeopаrdy as may be involved is jeopardy to our dual system of courts, federal and state. And a federal court should not lightly intrude into a sphere of activity left to state and local government under the Constitution: the maintenance of local order. Because the decision of the majority goes to the point of vesting jurisdiction in the federal court retroactively, a step further than the Supreme Court went in Hamm, I respectfully dissent.
WHITEHURST, District Judge (concurring in part and dissenting in part):
I concur in Judge TUTTLE‘s opinion on the merits. However, the Notice of Appeal having been filed six days later than permitted under Rule 37(a) (2) of the Rules of Criminal Proсedure, I would dismiss the appeal.
B. J. RHAY, Superintendent, Washington State Penitentiary, et al., Appellant, v. James E. BROWDER, Appellee.
No. 19466.
United States Court of Appeals Ninth Circuit.
Feb. 5, 1965.