Rachel v. State of Georgia, No. 21354.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: TUTTLE, , BELL, Circuit , and WHITEHURST
• Citation: 342 F.2d 336
• Parties: Thomas RACHEL et al., Appellants, v. STATE OF GEORGIA, Appellee.
• Docket Number: No. 21354.
• Decision Date: 05 March 1965

342 F.2d 336 (1965)

Thomas RACHEL et al., Appellants,
v.
STATE OF GEORGIA, Appellee.

No. 21354.

United States Court of Appeals Fifth Circuit.

March 5, 1965.

342 F.2d 337

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 counsel.

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.

Before TUTTLE, Chief Judge, BELL, Circuit Judge, and WHITEHURST, District Judge.

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 Title 28 U.S.C.A. § 1443 (1) and (2) (the Civil Rights Removal Sections). Having held, in the case of Congress of Racial Equality et al. v. Town of Clinton, Parish of East Feliciana, 5 Cir., 1964, ___ F.2d ___, that the enactment of the Civil Rights Act of 1964 resolved the question of appealability of remand orders as to cases removed to the Federal District Courts under Section 1443, supra,¹ we turn directly to the merits of the appeal.²

342 F.2d 338

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. Title 28 U.S.C.A. § 1443, provides as follows:

"§ 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

342 F.2d 339

out of the destruction of such right by the Constitution or statutory laws of the State wherein the action is pending."

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 each 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 that, 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

342 F.2d 340

States Constitution was caused by "statutory laws of the State" of Georgia. The allegation contained in paragraph 4 of the petition for removal, quoted above, that petitioners were denied their rights under the constitution and laws of the United States because the State of Georgia "by statute * * * supports and maintains a policy of racial discrimination," however, clearly asserts the precise ground for removal that the trial court said was required. This would not be so, of course, if a petition for removal, unlike other pleadings under the Federal Rules of Civil Procedure, must contain something more than the bare bones allegation of the existence of a right. As to this matter, we have no doubt that the rules of notice pleading apply with as much vigor to petitions for removal as they do to other pleadings, which, according to Rule 8(f) of the Federal Rules of Civil Procedure, "shall be so construed as to do substantial justice." The statute requires that the petition for removal contain "a short and plain statement of the facts which entitle him or them to removal." 28 U.S.C.A. § 1446. The Supreme Court has held that the removal must be effected by the filing of "a verified petition setting forth, agreeably to the ordinary rules of pleading, the particular facts, not already appearing, out of which the right arises." Chesapeake & Ohio Railway Co. v. Cockrell, 1914, 232 U.S. 146, 151, 34 S.Ct. 278, 280, 58 L.Ed. 544. It is plain, therefore, that the petition is to be construed "agreeably to the ordinary Rules of pleading" since in fact the petition for removal is the basis for the federal court's jurisdiction and it is a pleading of the facts necessary to vest jurisdiction in the federal court

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...