Brown v. City of Meridian
| Decision Date | 26 January 1966 |
| Docket Number | No. 21730.,21730. |
| Parties | Addie Sue BROWN, Annie Bell Harris, Charles Hosley, Samuel Johnson, Roscoe Jones, Alvin Packer, George Smith, Lelia Waterhouse and Freddie Lee Watson, Appellants, v. CITY OF MERIDIAN, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Ann Cooper, Boston, Mass., Anthony G. Amsterdam, Philadelphia, Pa., Henry M. Aronson, Carsie A. Hall, Jack H. Young, Jackson, Miss., Jack Greenberg, Melvyn Zarr, New York City, for appellants.
Thomas Y. Minniece, Meridian, Miss., Holyfield & Goldman, Meridian, Miss., for appellee.
Before JONES and THORNBERRY, Circuit Judges, and SLOAN, Senior District Judge.
This is an appeal by the named appellant and 7 other persons charged with a violation of a city ordinance of the City of Meridian, Mississippi, No. 2089.5,1 forbidding "conduct likely to lead to breach of the peace", and by appellant Fred Watson who was charged with a violation of a city ordinance, Chapter 3-2, of said city2 which forbids the distribution of advertising matter upon any sidewalk, street, etc. from an order of the district court sustaining the city's motion to remand the nine criminal cases to the city police court.
The petitions for removal in part allege:
(a) That the appellants were engaged in non-violent activities designed to achieve the equal civil rights of citizens; and that this effort is coordinated by a group described as COFO, or the Council of Federated Organization.
(b) That during the spring of 1964 this youth movement in the City of Meridian was promoting a selective buying campaign among negroes by non-violent and peaceful means, in order to persuade peacefully local business establishments and ten-cent stores which have lunch counters to have a policy of equal opportunity of employment and to desist from their policy of segregation based on race, particularly at the lunch counters.
(c) That the acts for which appellants were being held to answer, insofar as the offenses charged have any basis in fact, were acts in the constitutionally protected exercise of petitioners' rights to be free of discrimination by reason of race under the United States Constitution, Amendment XIV and of petitioners' rights of freedom of speech, assembly and petition, guaranteed by the United States Constitution, Amendments I and XIV and 42 U.S.C. § 1989 (1958).
(d) That insofar as the offenses charged against petitioners are based on allegations of conduct not protected by the federal Constitution and laws cited, those allegations of conduct are groundless in fact; and that conviction of petitioners of the charges against them has punished and will punish them for the exercise of rights, privileges and immunities secured them by the federal Constitution and laws, and has deterred and will deter them and others similarly situated from the future exercise of those rights, privileges and immunities, for if the Mississippi statutes or ordinances under which they are prosecuted make petitioners' conduct criminal, those statutes or ordinances are unconstitutional on their face and as applied, whereas if the statutes are construed so as to save their constitutionality under the federal Constitution, there is no evidence upon which petitioners may be convicted consistent with the due process of law required by the Fourteenth Amendment.
(e) That the arrests and prosecutions of petitioners have been and are being carried on with the sole purpose and effect of harassing petitioners and of punishing them for and deterring them from their constitutionally-protected rights of free speech and of free assembly to protest the conditions of racial discrimination in all public aspects of life, which it is alleged the State of Mississippi now maintains by statute, ordinance, regulation, custom, usage and practice; and that this harassment of petitioners is pursuant to a policy of racial discrimination which it is alleged is now encouraged, followed and enforced by legislation, and by action of the executive and judicial branches of the State of Mississippi.
(f) That by reason of the foregoing, petitioners are being prosecuted for acts done under color of authority derived from the federal Constitution and laws providing for equal rights, that is, U. S. Constitution, Amendments I, XIV, and 42 U.S.C. §§ 1983, 1985 (1958), and for refusing to do acts on the ground that they would be inconsistent with the Constitution and laws cited; and that, by reason of the foregoing allegations, petitioners have been denied, and are being denied, and cannot enforce in the courts of the State of Mississippi rights under the cited federal Constitutional and statutory sections providing for equal rights of citizens of the United States and of all persons within the jurisdiction of the United States.
Upon motion by the City of Meridian the district court remanded each case to the police court of the City of Meridian upon the ground that the motions to remand were not timely in that they were not filed until after the trial in police court.
It appears that the appellants here were arrested on or about May 30, 1964, and their case was called in police court at 2:00 P.M. on June 3, 1964, and their counsel, John Due, Esq., of the Florida Bar, moved for a continuance to enable him to prepare for trial. This was granted until June 10, 1964.
At 11:30 A.M. on June 10, 1964, with the cases set for trial in police court at 2:00 P.M. that afternoon, counsel presented to the Clerk of the United States District Court for the Southern District of Mississippi separate removal petitions verified by each of the 9 defendant appellants in this case.
The Clerk refused to mark these petitions filed, stating that they must be filed in duplicate.
Counsel had no knowledge of this requirement. The statute 28 U.S.C. § 1446(a) only requiring the filing of "a verified petition", counsel had only prepared copies for service as required by the statute and did not have time to have duplicate copies of the petitions prepared and filed before the cases were to be heard in police court. With the consent of the Clerk of the District Court, who said that the clerk's office would hold the petition though it would not file them, Mr. Due left the petitions with the Clerk of the District Court and complied with the requirements of 28 U.S.C. § 1446(c) by personally handing the Meridian City Attorney, a notice of removal with attached petition and filing an identical notice of the removal, with removal petition attached, with the Clerk of the police court of the City of Meridian.
At 2:00 P.M. on June 10, 1964, the appellants' cases were called for trial in the police court in the City of Meridian. Mr. Due, their counsel, moved to continue all the cases on the ground that the cases had been removed to federal court. This motion was denied. Mr. Due then entered formal objections, by motion to quash the accusations, to the jurisdiction of the police court on the ground that the lodging of the removal petitions with the Clerk of the United States District Court and the service of notices of removal, with attached removal petitions upon the Clerk of the police court and the City Attorney had perfected the removal of the cases to the United States District Court for the Southern District of Mississippi and that the police court of the City of Meridian was ousted of jurisdiction. The objection was overruled, the cases went to trial, counsel for appellants advanced the various constitutional defenses enumerated in the petition for removal and these were rejected by the police court and appellants were convicted and each sentenced to a fine of $50.00.
On June 15, 1964, the duplicate petitions were furnished the Clerk of the District Court and the Clerk then marked filed as of June 15, 1964, the petitions for removal that had been tendered to the Clerk for filing at 11:30 A.M. on June 10, 1964.
The questions to be resolved on this appeal are:
1. Were the petitions for removal timely filed?
2. Did appellants' removal petitions sufficiently state a removable case under 28 U.S.C. § 1443 or any other United States statute?
We first reach the question...
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