Rand v. State of Arkansas

• Decision Date: 16 February 1961
• Docket Number: Civ. A. No. 428.
• Citation: 191 F. Supp. 20
• Parties: Virginia RAND, Petitioner, v. STATE OF ARKANSAS. Respondent.
• Court: U.S. District Court — Western District of Arkansas

191 F. Supp. 20

Virginia RAND, Petitioner, v. STATE OF ARKANSAS. Respondent.

Civ. A. No. 428.

United States District Court. W. D. Arkansas, Fayetteville Division.

February 16, 1961.

Rex Perkins, Fayetteville, Ark., Jeff Duty, Rogers, Ark., for petitioner.

Ted P. Coxsey, Berryville, Ark., for respondent.

JOHN E. MILLER, Chief Judge.

On February 9, 1961, the petitioner, Mrs. Virginia Rand, filed her petition for the removal to this court of the above proceeding from the Circuit Court of Benton County, Arkansas.

To date no motion to remand has been filed by the State of Arkansas, but it is the duty of a court to ask and answer for itself the question whether it has jurisdiction. Westark Production Credit Ass'n v. Fidelity & Deposit Co., D.C.W.D.Ark.1951, 100 F.Supp. 52, 56.

Rule 12(b) (2) of the Fed.R.Crim.P., 18 U.S.C.A., provides:

"* * * Lack of jurisdiction or the failure of the indictment or information to charge an offense shall be noticed by the court at any time during the pendency of the proceeding."

Lack of jurisdiction of a federal trial court of the subject matter of litigation cannot be waived by the parties or ignored by a federal appellate court. Thus it is the duty of this court to determine at the outset whether it has jurisdiction of the subject matter of the litigation. Title 28 U.S.C.A. § 1447(c); Kern v. Standard Oil Co., 8 Cir., 1956, 228 F.2d 699.

Mrs. Rand was indicted on August 29, 1959, by a Grand Jury of Benton County and charged with the crime of murder in the second degree. Ark.Stat.Ann., Secs. 41-2201 and 41-2206 (1947). On November 20, 1959, the petitioner was placed on trial in the Benton Circuit Court. The trial resulted in a verdict and judgment of guilty of murder in the second degree, and a sentence of 8 years in the Arkansas Penitentiary was assessed. The case was appealed to the Arkansas Supreme Court, and on December 12, 1960, the Supreme Court reversed the case on the ground that inadmissible evidence had been introduced. Rand v. State, Ark., 341 S.W.2d 9.

The petitioner alleges that she is denied and cannot enforce in the courts of the State of Arkansas, or of the Fourth Judicial District of the State of Arkansas, the rights secured to her by the Constitution and laws of the United States providing for due process of law and equal civil rights of citizens of the United States. The specific allegations in the petition are contained in paragraphs numbered 7 through 11, and read as follows:

"7. Petitioner alleges that it is absolutely impossible for her to obtain the fair and impartial trial to which she is entitled to under the Due Process of Law clause of Amendment No. 14 to the Constitution of the United States. That said fair and impartial trial cannot be had within the Fourth Judicial District of Arkansas. That under the Constitution and Statutes of the State of Arkansas this Petitioner is denied such right and privilege and cannot enforce such right and privilege in that the Constitution and Statutes of the State of Arkansas specifically bar a change of venue from a Judicial District, and under the holdings of the Supreme Court of Arkansas a defendant is barred from such change. That a fair and impartial trial is a privilege to which this petitioner, as a citizen of the United States, is entitled to receive. That such denial of a fair and impartial trial amounts to a denial of due process.

"8. Petitioner states that such prejudice against the defendant and petitioner, has been generated within the Fourth Judicial District, as to amount to a complete denial of the civil rights and equal protection to which this petitioner is entitled to. That this case has been so publicized throughout the Fourth Judicial District as to create a mob feeling against this petitioner. That the Constitution and Statutes of the State of Arkansas do not afford a remedy to this Petitioner or afford to her relief in this cause. That this petitioner has, in effect, been `singled out' and is denied the equal protection of law to which a person charged with crime is entitled to. That she has no remedy in the Courts of the State of Arkansas to enforce said right.

"9. Petitioner states that in the trial of this cause on the _____ day of _____ 1959 inadmissible and incompetent and inflammatory testimony was deliberately introduced on behalf of the State of Arkansas and said testimony and evidence was quoted and distributed over the Fourth Judicial District of Arkansas. That such testimony was intended to inflame juries and the people of the Fourth Judicial District and such was its effect. That the effect of such testimony remains.

"10. Petitioner states that on the 12th day of December 1960 the cause entitled Virginia Rand, Appellant, v. The State of Arkansas, Appellee, was, by the Supreme Court of Arkansas, reversed. That said reversal was unqualified and said case was not remanded, according to the opinion in said case No. 4977, for a new trial. That said cause was not remanded, according to the opinion, to the Benton Circuit Court. That the Mandate filed in this cause in the Benton Circuit Court, under the authority of the said highest court within the State of Arkansas purports to remand the cause. That said mandate is in conflict with said opinion and judgment of the said Supreme Court. That the action of the Benton Circuit Court in attempting to force this petitioner to trial in a denial of due process. That the petitioner, under the facts set forth above, has no remedy in the courts of the State of Arkansas to enforce her right to due process and equal protection.

"11. Petitioner alleges that it is impossible for her to procure the equal protection which the law places around those accused of crime in the said Fourth Judicial District of Arkansas."

The law has long been established that there is no common-law right to remove an action from a state court to a federal court, and removal may be had only as authorized by an act of Congress. This rule is stated in 45 Am.Jur., Removal of Causes, Sec. 3, as follows:

"There is no common-law right of removal of a cause from a state to a United States court. The right exists only by virtue of and to the extent authorized by act of Congress. It cannot rest on the mere convenience of the parties, nor can it be exercised in any case not falling within the terms of the act authorizing it. So, a suit commenced or pending in a state court must remain there unless and until cause is shown under some act of Congress for its transfer to a Federal court and proper proceedings to remove it are taken."

In 1 Moore's Federal Practice, Sec. 0.609 (2d Ed. 1960), it is noted:

"* * * The right to remove an action from a state court to the federal district court is a statutory right; and under the present removal statutes only a defendant can remove. In some situations removal is broader, in others narrower, than original jurisdiction, although, in general, removal is keyed to original jurisdiction." Shamrock Oil & Gas Corp. v. Sheets, 1941, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214.

The petitioner does not specifically allege which of the removal statutes is relied upon to confer jurisdiction on this court. The general removal statute, 28 U.S.C.A. § 1441, is not applicable since it is specifically limited to civil actions. However, it appears from a reading of the petition that the petitioner seeks to rely on 28 U.S.C.A. § 1443, which provides:

"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."

Section 1443 is discussed in 2 Cyc. of Fed. Procedure, Secs. 3.81 and 3.82. In Section 3.81 it is stated:

"In conferring the right of removal of causes against persons denied civil rights, it was intended to protect against state action and that alone. In other words the statute has reference to a constitutional or legislative denial of equal rights, or an inability to enforce them resulting therefrom. It is only when some state law, ordinance, regulation or custom hostile to these rights is alleged to exist that a removal can be had under this provision, and defendant in the action or prosecution in the state court cannot have the cause removed under this provision where it does not appear that the constitution or laws of the state deny or prevent him from enforcing in the judicial tribunals of such state his equal rights as secured to him by the Federal Constitution and laws. If a state law impairs equal rights so guaranteed to defendant, however, the right of removal exists, as where laws in relation to grant and petit juries discriminate against persons of certain races in violation of the United States Constitution and laws. An alleged inequality of position before the courts of the state as between plaintiff and defendant, arising from the fact that the plaintiff is a state and the defendant an individual, was held to be no denial of equal civil rights within the meaning of the removal provision under discussion. State laws against `bookmaking' and `poolselling' do not work a denial of defendant's equal civil rights so as to warrant the removal of a prosecution against him for such offense, where they do not, as claimed by defendant, subject white persons who make, register and record bets and wages on horse races to one kind of punishment and penalty, and other persons to some other kind, contrary to federal law."

In Section 3.82 it is stated:

"* * * The removal

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