342 F.2d 255 (2nd Cir. 1965), 156-165, People of State of N. Y. v. Galamison

Docket Nº:156-165, 29166-29175.
Citation:342 F.2d 255
Party Name:PEOPLE OF the STATE OF NEW YORK, Appellee. v. Milton A. GALAMISON et al., Appellants.
Case Date:January 26, 1965
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 255

342 F.2d 255 (2nd Cir. 1965)



Milton A. GALAMISON et al., Appellants.

Nos. 156-165, 29166-29175.

United States Court of Appeals, Second Circuit.

Jan, 26, 1965

Argued Oct. 2, 1964.

Certiorari Denied April 26, 1965, See 85 S.Ct. 1342.

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William M. Kunstler, New York City, (Kunstler, Kunstler & Kinoy, New York City), and John E. Silverberg, New York City (Carl Rachlin, New York City, on brief), for appellants.

Harvey B. Ehrlich, New York City (Frank D. O'Connor, dist. Atty., Queens County, New York, Louis J. Lefkowitz, Atty. Gen., State of New York, Mortimer Sattler, Asst. Atty. Gen., of counsel)8 Frank S. Hogan, Dist. Atty., New York County (Richard H. Kuh, John A. K. Bradley, Asst. Dist. Attys., of counsel), and Isidore Dollinger, Dist. Atty., Bronx County (Irving Anolik, Asst. Dist. Atty., of counsel), for appellee.

Before FRIENDLY, KAUFMAN and MARSHALL, Circuit Judges.

FRIENDLY, Circuit Judge.

We have here appeals concerning some sixty persons from orders of the District Courts for the Eastern and Southern Districts of New York, remanding to the New York courts criminal proceedings sought to be removed pursuant to 28 U.

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S.C. § 1443, 1 a statute which goes back to the Civil Rights Act of 1866, 14 Stat. 27. The appeals are the first to be taken to this court as a result of § 901 of the Civil Rights Act of 1964, Pub.L. 88-352, which limited the general prohibition of review of remand orders 'on appeal or otherwise,' 28 U.S.C. § 1447(d), 2 by adding a clause 'except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise.'

In the light of the rule, established before the prohibition of direct review, that an order of remand was not a final judgment subject to appeal under what is now 28 U.S.C. § 1291, but could be tested only by mandamus, Chicago & Alton R.R. V. Wiswall, 90 U.S. (23 Wall.) 507, 23 L.Ed. 103 (1875), and the failure of the framers of the Civil Rights Act of 1964 to amend 28 U.S.C. § 1292(a) to add remand orders under 28 U.S.C. § 1443 as a new category of appealable interlocutory orders, it could be argued with some force that review here would lie only through mandamus. If necessary, despite some prior decisions of this court discussed in United States v. O'Connor, 291 F.2d 520, 524 (2 Cir.1961), we would be prepared to treat the instant appeals as petitions for such writs. However, in view of the Congressional purpose as revealed in the legislative history, H.Rep.No. 914, 88th Cong., 2d Sess. (1963); 110 Cong.Rec. 6739 (daily ed. April 6, 1964) (remarks of Senator Dodd), and the cumbersome nature of mandamus, we shall construe the 1964 statute, despite its inartistic drafting in this respect, as sufficiently revealing an intention to authorize appeals from orders of remand under 28 U.S.C. § 1443.

Galamison and nearly fifty other appellants were named as defendants in prosecutions in Queens County, New York, for various acts which disrupted highway and subway traffic to the New York World's Fair in order to publicize their grievances over what Galamison's removal petition characterizes as 'the denial of equal protection of the laws to Negroes in the City, State and Nation with reference to housing, education, employment, police action and other areas of local and national life too numerous to mention.' Two appellants were arrested in Bronx County after passing out leaflets at a public school urging a protest against lack of integration. Eight more were being prosecuted in New York County for staging a sit-in at City Hall in the course of a protest on the same subject. All filed petitions removing the criminal cases against them to the federal courts. 3 The state having moved to remand, Judge Rosling in the Eastern

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District of New York, dealing with the Queens County cases, and Judge Cannella in the Southern District of New York, dealing with the Bronx and New York County cases, granted the motions without conducting the evidentiary hearings which appellants had sought primarily, if not exclusively, with reference to their claims under § 1443(1). Appeals having been taken, judges of this court stayed the remand orders to enable us to consider the important and largely novel questions presented.

At the argument before us, counsel for the appellants expressly disclaimed reliance on the first clause of § 1443, and staked the cases entirely on the second. The district attorneys asked us to disregard informalities in the removal petitions and dispose of appellants' claim under § 1443(2) on the merits-- a proposal which appellants applauded. Reading the petitions in the spirit which the State has invited and in the light of appellants' thorough briefs, we construe them as asserting that appellants' acts of protest and resistance were 'under color of authority' of one or more of three 'law(s) providing for equal rights'-- the guarantees of free speech and petition embodied in the due process clause of the Fourteenth Amendment, the equal protection clause of that Amendment, and statutory protection of rights conferred by the Constitution, notably 42 U.S.C. §§ 1981 and 1983. 4 Alternatively the petitions suggest that appellants' refusal to obey police commands was 'on the ground that it would be inconsistent with' the same three sets of laws.

We pause at this point for a word concerning our dissenting brother's position that the petitions are so defective that we ought simply to vacate all the orders of remand and have everyone start over again. While the petitions may not have been drawn with the expertness desired and might well have been insufficient properly to raise the question of removal under § 1443(1), there is not and never has been any such difficulty in discerning what is here at issue as the dissent suggests. The Queens County cases concern widely publicized mass demonstrations in public places-- the streets and the subway. The New York County cases concern demonstrations in City Hall. No one asserts that Negroes in New York City are subjected to unequal treatment in any of these places or that the demonstrations were intended to remove discrimination there; the protests were directed at alleged unequal treatment generally 'in the City, State and Nation.' This leaves the cases from Bronx County. We shall assume that the school at which these two appellants were distributing leaflets was in their view a segregated one; on the other hand, there is not a word in the petitions, nor has there been the slightest suggestion from counsel, that the appellants were or had children in that school.

It would indeed be pleasant if we could conscientiously avoid decision here. The interpretative problems are difficult, due to the age of the statute, the lack of decisions thereunder and the mangling which it has undergone; it is unfortunate that, in subjecting remands under § 1443 to review, the draftsmen of the Civil Rights

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Act of 1964, understandably preoccupied with more pressing issues, did not attempt to clarify what that venerable statute meant. The pain of decision is exacerbated when one choice may somewhat impair expectations entertained by persons of good will whose objectives we admire, and the other, in our view, would do violence to institutions and relations we hold equally dear, the continued efficient functioning of which has far greater long-run importance to minorities than the special relief here sought. But, as Judge Learned Hand so frequently reminded us, often in more colorful language, it is 'a judge's duty to decide, not to debate,' The Spirit of Liberty 100 (1959 paperback ed.)-- and here to construe, not to suggest a variety of possible constructions without coming to rest on any one. Apart from desiderata as to the instant prosecutions, the district courts in this circuit require guidance as to other cases that have been accumulating while we have had these under advisement. And it will be more helpful to the Supreme Court and to the Congress-- and it is well to remember it is a statute we are expounding-- for us to expose the problems raised by the removal petitions here before us and state what we consider their proper solution under existing law, rather than postpone the issue by remanding these cases and having them back six months hence with the issues no different then than now.

We turn initially to the history of the statute. Section 1443 stems from § 3 of the first Civil Rights Act, 14 Stat. 27 (1866), quite obviously enacted under the power conferred by the recently adopted Thirteenth Amendment and prior to the adoption of the Fourteenth. Section 1 of the Act declared that, with exceptions not here relevant, 'all persons born in the United States * * * of every race and color, without regard to any previous condition of slavery or involuntary servitude * * * shall have the same right * * * to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other * * *' Section 2 made it a crime for any person 'under color of any law, statute, ordinance, regulation, or custom' to deprive any person of any right secured by the Act. There follows the removal provision, § 3, the first sentence of which we quote in the margin. 5

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The Act of May 31, 1870, 16 Stat. 140, reenacted the Civil Rights Act of 1866, safeguarded the equal rights of citizens to vote, and defined, among others, the crime of conspiring to injure a...

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