Student Non-Violent Coordinating Committee v. Smith Brief for Appellants

    I n  t h e

United States (Emtrt of Appeals
F ob t h e  F if t h  C ircuit

No. 23,114

S tudent  N o n -V iolent  C oordinating  C o m m itte e , et al.,

Appellants,
—v.—

C arl S m it h ,
Appellee.

APPEAL FROM TH E  UNITED STATES DISTRICT COURT 

FOR TH E  MIDDLE DISTRICT OF GEORGIA

BRIEF FOR APPELLANTS

C. B . K ing

600 S. Jefferson Street 
Albany, Georgia

H oward M oore, J r .
859*72 Hunter Street, N.W. 
Atlanta, Georgia 30314

J ack  Greenberg 
C harles S te ph en  R alston 
C harles H. J ones, J r .
M elvyn  Z arr

10 Columbus Circle
New York, New York 10019

Attorneys for Appellants

A n t h o n y  G. A msterdam

Of Counsel





I N D E X

PAGE

Statement of the Case ....................................................... 1

Specification of Error ....................................................... 4

A b g u m e u t

I. Appellants’ Removal Petition Adequately 
States a Case for Removal Under 28 U.S.C. 
§1443(1) Within the Rule of Rachel v. 
Georgia, and Peacock v. City of Greenwood 4

II. Appellants’ Removal Petition Adequately 
States a Case for Removal Under 28 U.S.C. 
§1443(1) Under the Rule of Strauder v. West 
Virginia ................................................................. 8

A. The Georgia statutory scheme of using
tax digests containing racial designations, 
as required by statute, in the system of 
jury selection is unconstitutional ................. 10

B. The unconstitutional state procedure is
sufficient for removal .....................................  12

C onclusion  .....        16

Certificate of Service 17



11

T able  of Cases

page

Anderson v. Albany, 9 R. Rel. L. Rep. 1124 (M.D. Ga.
Nos. 727, 731, 1964) .......................................................  2

Anderson v. Martin, 375 U.S. 399 (1964) ...............11,12,15
Avery v. Georgia, 345 U.S. 559 (1953) ..... ..................11,14

Brown, et al. v. City of Meridian (5th Cir. No. 21730,
Jan. 26, 1966) ........................................... ........................ 6

Brewer v. Hoxie, 238 F.2d 91 (8th Cir. 1956) ...............  6

Calhoun, et al. v. City of Meridian (5th Cir. No. 21991,
Jan. 26, 1966) ...................................................................  6

Cassell v. Texas, 339 U.S. 282 (1950) .............................  10

Hamm v. Virginia State Board of Elections, 230 
F.Supp. 156 (E.D. Va. 1964), aff’d sub nom. Tancil 
v. Woolls, 379 U.S. 19 .......................... .................10,11,15

Kelly v. Page, 335 F.2d 114 (5th Cir. 1964) .................  2
Kentucky v. Powers, 201 U.S. 1 (1906) ....................... 10,13

McMeans, et al. v. Mayor’s Court, Fort Deposit, 247 
F.Supp. 606 (M.D. Ala. 1965) ...................................... . 6

New York v. Galamison, 342 F.2d 255 (2nd Cir. 1965), 
cert. den. 380 U.S. 977 (1965) .....................................  5

Peacock v. City of Greenwood, 347 F.2d 679 (5th Cir. 
1965) .............................................................................2, 4, 5, 7

Rachel v. Georgia, 342 F.2d 336 (5th Cir. 1965) .........2, 4, 5

Shelley v. Kraemer, 334 U.S. 1 (1948) ...........................  6
Steele v. Louisville & N. R. Co., 323 U.S. 192 (1944) .... 12
Strauder v. West Virginia, 100 U.S. 303 (1880) .....2,9,10,

12,13,14



I ll

PAGE

Virginia v. Rives, 100 U.S. 313 (1880) ...................10,13,14

Williams v. Georgia, 349 U.S. 375 (1955) .............11,12,14

F ederal S tatutes

Act of April 9, 1866, ch. 31, §3, 14 Stat. 27 ...................  6

Judicial Code of 1911, ch. 231, §31, 36 Stat. 1096 .........  7

Revised Statutes §641 (1875) ........................................... 6,7

28 U.S.C. §74 (1940) ........................................................  7

28 U.S.C. §1443 (1958) ............   1,4,7

42 U.S.C. §1981 ...............................................................  5

42 U.S.C. §1983 ...............................................................  3,5

S tate  S tatutes

Ga. Code Ann. §59-106 ...... ...................................... 3,8, 9,10

Ga. Code Ann. §92-6307 ...............................3, 8, 9,10,12,14

O th er  A uthorities

Amsterdam, Criminal Prosecutions Affecting Feder­
ally Guaranteed Civil Rights: Federal Removal and 
Habeas Corpus Jurisdiction to Abort State Court 
Trial, 113 U. Pa. L. Rev. 793 (1965) ........................ 13

Cong. Globe, 39th Cong., 1st Sess., 1526 (March 20, 
1866) ..................................................................................  7

Cong. Globe, 39th Cong., 1st Sess., 1983 (April 17, 
1866) ..................................................................................  7

H. R. Rep. No. 308, 80th Cong., 1st Sess., A134 (1947) 7



I n  t h e

Intfrit Stairs (Emtrt nf Appeals
F oe th e  F if t h  C ikcuit 

No. 23,114

S tu dent  N on-V io lent  C ooedinating C o m m ittee , et al.,

Appellants,
—v.—

C ael S m it h ,
Appellee.

APPEAL FEOM TH E  UNITED STATES DISTBICT COUET 

FOE TH E MIDDLE DISTBICT OF GEOEGIA

BRIEF FOR APPELLANTS

Statement of the Case

This is an appeal from an order of United States Dis­
trict Judge J. Robert Elliott remanding to the Georgia 
Court from which appellants had removed it a civil ac­
tion brought against individuals and organizations par­
ticipating in a program whose purpose was to achieve 
racial equality in the City of Albany, Georgia.

On August 6, 1965, appellants filed in the United States 
District Court for the Middle District of Georgia, Albany 
Division, their verified petition for removal (Record, pp. 
2-8). The Court below remanded on September 7, 1965, 
holding that the civil rights removal statute, 28 U.S.C. 
§1443, did not give a right to remove a civil case brought



2

by a private party, and that Georgia state statutes re­
quiring jury commissioners to select jurors from tax digests 
in which white and Negro taxpayers are listed separately 
did not give rise to a right to removal, under the decision 
of Strauder v. West Virginia, 100 U.S. 303 (1880). There­
fore, it was held that the case had been improvidently 
removed to the Federal Court (R., 33-38).

Since the case was remanded without hearing on the 
jurisdictional facts, the factual allegations of the removal 
petition must be taken as true for purposes of this appeal. 
Rachel v. Georgia, 342 F.2d 336 (5th Cir. 1965); Peacock 
v. City of Greenwood, 347 F.2d 679 (5th Cir. 1965). Those 
allegations are as follows.

Appellants are: the Student Non-Violent Coordinating- 
Committee and the Albany Movement, organizations whose 
purpose is the securing of equal rights for all citizens re­
gardless of race; W. G. Anderson, Slater King, Samuel 
Wells, and Emma Perry are officers of the above Albany 
Movement; and Luther Woodall, William Colbert, and 
Thomas Chatmon are Negro residents of the City of 
Albany, Georgia. During the years of 1962 and 1963 the 
appellants and others exercised their rights to free speech 
and peaceful protest in the City of Albany in order to 
promote equal political, social and legal rights for all 
citizens of Albany, Georgia, regardless of race (R., 6-7).1

In the exercise of those rights, on or about April 20, 
1963 through April 23, 1963, certain persons conducted a 
campaign of picketing the appellee Carl Smith’s grocery 
store, the Foodland Supermarket, to protest his discrimina­

1 For a full discussion of the events and circumstances in Albany, 
Georgia, during this period see the Opinions of the District Court and 
o f this Court in the cases o f Anderson v. Albany, 9 R. Rel. L. Rep. 1124 
(1964), and Kelly v. Page, 335 F.2d 114 (5th Cir. 1964).



3

tory hiring practices (R., 7). Of the defendants named in 
this suit, only appellants Woodall, Colbert and Anderson, 
none of whom were actually served with the complaint 
herein, were in any way involved with the picketing of 
the appellee’s store (Ibid.).

Subsequently, on July 15, 1965, the present action was 
filed in the Superior Court of Dougherty County, Georgia. 
The complaint alleged that the appellants had conspired 
to conduct a boycott of appellee’s store because of his 
service on a federal jury which tried a civil rights action 
against the sheriff of Dougherty County and found for 
the sheriff (R., 9-14). Damages were asked in the amount 
of $200,000 special damages and $100,000 punitive damages 
against the appellants.

In their removal petition, the appellants alleged that the 
real purpose of this suit was to harass, intimidate and 
obstruct them in the exercise of their constitutionally pro­
tected right to freedom of speech and peaceful protest 
against racially discriminatory policies in the City of 
Albany (R., 7). Therefore, the pendency of the action in 
the courts of the State of Georgia would deny them equal 
protection of the laws under the First and Fourteenth 
Amendments of the Constitution and 42 IT.S.C. §1983 
(R., 8).

It was also alleged that the appellants could not enforce 
and were denied in the courts of Georgia the right to be 
free of racial discrimination or segregation in the compo­
sition of the jury which would try the present suit. Such 
denial arose because the jury commissioners are required 
by Ga. Code Ann. §59-106 to select the names of persons 
eligible for jury service in criminal and civil proceedings 
from the tax digests of the respective county. Under Ga. 
Code Ann. §92-6307, these tax digests are maintained and



4

organized on the basis of race or color in that Negro and 
white taxpayers are listed separately (R., 5). Therefore, 
as the District Court construed the allegations, it was con­
tended that the number of Negroes on the jury list was 
disproportionate to the number of white persons because 
of these state statutes (R., 5, 36).

The appellants were served with copies of the complaint 
on July 16, 17 and 19, 1965. Their verified removal petition 
was filed August 6, 1965 (R., 4, 6). Judge Elliott’s remand 
order was entered on September 7, 1965 (R., 33). Notice 
of appeal was timely filed September 20, 1965 (R., 39).

Specification of Error

The court below erred in holding that appellants’ petition 
for removal did not state a removable case under 28 U.S.C. 
§1443.

A R G U M E N T

I.

Appellants’ Removal Petition Adequately States a 
Case for Removal Under 28  U.S.C. § 1 4 4 3 (1 )  Within 
the Rule of Rachel v. Georgia, and Peacock v. City of 
Greemvood.

Appellants alleged in their petition for removal the fol­
lowing (R., 7 ):

9. On or about April 20, 1963 through April 23, 
1963, certain persons conducted a campaign of picket­
ing plaintiff-respondent’s grocery store in order to 
protest his discriminatory employment practices. Some­
time prior to this date, the plaintiff-respondent had



5

been asked by members of the Negro community if lie 
would hire Negroes on a non-discriminatory basis in 
his store, since a substantial portion of his customers 
were Negroes. Although he indicated to them that he 
would hire a Negro cashier, he stated at other times 
to other persons that he would never do so. Of the 
defendants named in this suit, only Luther Woodall, 
William Colbert, and W. G. Anderson, none of whom 
have been served, were in any way involved in the 
picketing of plaintiff-respondent Carl Smith’s Food- 
land Grocery.

10. For these reasons, the purpose of the suit 
brought in the State Court against the defendants- 
petitioners is to harass, intimidate and obstruct them 
in the exercise of their constitutionally protected right 
to freedom of speech and peaceful protest against 
racially discriminatory policies in the City of Albany, 
Georgia, and thus to deny them their rights under 42 
U.S.C., Section 1981.

The sufficiency of this allegation to confer jurisdiction 
on the court below is clearly established by Peacock v. City 
of Greenwood, 347 F.2d 679 (5th Cir. 1965).2

Appellants rely upon the equal protection clause of the 
Fourteenth Amendment and on 42 U.S.C. §§1981 and 1983, 
which are clearly laws “providing for the equal civil rights 
of citizens of the United States, or of all persons within 
the jurisdiction thereof.” Peacock; New York v. Galamison, 
342 F.2d 255 (2nd Cir. 1965), cert. den. 380 U.S. 977 (1965).

2 Federal rules of notice type pleading are applicable to petitions for 
removal. Peacock; Rachel v. Georgia, 342 F.2d 336 (5th Cir. 1965). 
Thus, “ bare bones”  allegations are sufficient, “ unless there is patently no 
substance in [them]” (342 F.2d at 340).



6

In Peacock, the Court held sufficient an allegation that 
the removed action was being employed to thwart the re­
moval petitioners’ efforts to assist Negroes to register to 
vote; Peacock and later decisions control a case in which 
the removed action is employed to thwart the efforts of 
removal petitioners to conduct peaceful picketing to pro­
test discriminatory hiring practices. Brown, et al. v. City 
of Meridian (5th Cir. No. 21730, Jan. 26, 1966); Calhoun, 
et al. v. City of Meridian (5th Cir. No. 21991, Jan. 26, 1966); 
McMeans, et al. v. Mayor’s Court, Fort Deposit, 247 F.Supp. 
606 (M.D. Ala. 1965).

The fact that Peacock involved a criminal prosecution 
rather than a civil action, as here, is a difference without 
a distinction. No distinction is made in the removal statute 
itself. And the fact that the appellee is a “private” person 
does not alter the conclusion that enforcement by a state 
court of an attempt to harass and intimidate those seeking 
an end to discriminatory hiring policies is a denial of 
equal protection of the laws. Shelley v. Kraemer, 334 U.S. 
1 (1948). Cf., Brewer v. Hoxie, 238 F.2d 91, 94 (8th Cir. 
1956).

The history of the removal act demonstrates conclusively 
that no distinction was intended between a criminal prose­
cution and a civil suit brought by a private person. Thus, 
the act in its original form stated that the federal courts 
had jurisdiction, “ of all causes, civil and criminal, affect­
ing persons who are denied or cannot enforce in the courts 
. . . of the State . . . rights . . . ” Act of April 9, 1866, ch. 31, 
§3, 14 Stat. 27. And the removal statute as codified in 
Rev. Stat. §641 (1875) stated:

When any civil suit or criminal prosecution is com­
menced in any State court, for any cause whatsoever,



7

against any person who is denied or cannot enforce . . . 
any right . . . etc. (Emphasis added.)

This language was carried forward in Judicial Code of 1911, 
ch. 231, §31, 36 Stat. 1096 and 28 U.S.C. §74 (1940). In 
1948, with changes in phraseology, it assumed its present 
form as 28 U.S.C. §1443. The reviser’s note to §1443 indi­
cates that no substantive changes were intended. H. E. Eep. 
No. 308, 80th Cong., 1st Sess. A134 (1947).3

Appellants concede, as they must, that “ [o ]f  course, such 
allegations must be proved if they are challenged” (Pea­
cock, 347 F.2d at 684). Appellants merely seek the oppor­
tunity to prove that the purpose of the action against them 
was to harass and intimidate those seeking to bring about 
by peaceful means an end to racially discriminatory policies 
in the City of Albany.

3 There is little legislative history dealing directly with this question 
with regard to the removal of actions against persons who are denied 
equal rights in state courts. However, in the debates over the statute 
allowing the removal of cases o f officers or others acting under the 
authority of the United States, it was made clear that substantially the 
same language was to apply to civil actions by private parties. Indeed, 
such actions were a prime concern o f the measure’s sponsors. See, e.g., 
Remarks o f Rep. McKee, Cong. Globe, 39th Cong., 1st Sess. 1526 
(March 20, 1866); Remarks of Sen. Trumbull, Id. at 1983 (April 17, 
1866).



8

n.
Appellants’ Removal Petition Adequately States a 

Case for Removal Under 28  U.S.C. § 1 4 4 3 (1 )  Under 
the Rule of Strauder v. West Virginia.

The petition for removal also alleged that:

2. The defendants-petitioners cannot enforce and 
are denied in the courts of Georgia the federally pro­
vided right to be free of racial discrimination or segre­
gation in the composition of the venire and the traverse 
jury to try the issues joined between the defendants- 
petitioners and the plaintiff-respondent. The jury com­
missioners of the several counties are directed by state 
statute to select the names of persons eligible for jury 
service in criminal and civil proceedings from the tax 
digests of the respective counties which, pursuant to 
Title 92, Ga. Code Ann., Sec. 6307, are maintained and 
organized on the basis of race or color. As a conse­
quence of the above described illegal state action, the 
state created procedures are weighed in favor of exclu­
sive white representation on juries in Dougherty 
County, Georgia in derogation of the equal protection 
clause of the Fourteenth Amendment, United States 
Constitution and latvs of the United States made pur­
suant thereto providing for equal rights (R., 5).

In other words, state stautes required that juries be picked 
from public documents segregated by race, also pursuant 
to statute/ 4

4 Code o f Ga. Ann. §59-106 provides:
59-106. Revision of jury lists. Selection o f grand and traverse 

jurors.— Biennially, or, if the judge o f the superior court shall 
direct, triennially on the first Monday in August, or within 60 days



9

The district court construed “the contention to be that 
the number of Negroes on the list is disproportionate to 
the number of white persons. . . (R., 36) as a result of
the statutes. However, the court held that these statutes 
did not form a basis for removal since they did not directly 
require a disproportionate number of Negroes on jury lists. 
Therefore, the case did not come within the rule of Strauder 
v. West Virginia, 100 U.S. 303 (1880).

Moreover, the court took judicial notice that jury com­
missioners in the State of Georgia put both white and 
Negro citizens on the lists under the provisions of the above 
statutes (R., 37). There was no evidence in the record on 
which to base this finding, and appellants were given no 
opportunity to present evidence to refute it.5

thereafter, the board of jury commissioners shall revise the jury 
lists.

The jury commissioners shall select from the books of the tax 
receiver upright and intelligent citizens to serve as jurors, and 
shall write the names of the persons so selected on tickets. They 
shall select from these a sufficient number, not exceeding two-fifths 
of the whole number, o f the most experienced, intelligent, and up­
right citizens to serve as grand jurors, whose names they shall write 
upon other tickets. The entire number first selected, including those 
afterwards selected, including those afterwards selected as grand 
jurors, shall constitute the body of traverse jurors for the county, 
to be drawn for service as provided by law, except that when in 
drawing juries a name which has already been drawn for the same 
term as a grand juror shall be drawn as a traverse juror, such name 
shall be returned to the box and another drawn in its stead.

Code o f Ga. Ann. §92-6307 provides:
92-6307. Entry on digest of names of colored persons.— The tax 

receivers shall place the names of the colored taxpayers, in each 
militia district of the county, upon the tax digest in alphabetical 
order. Names o f colored and white taxpayers shall be made out 
separately on the tax digest.

6 The court below further indicated that even if the statutes cited 
formed a basis for removing criminal eases, they would not for a civil 
case brought by a private party. As shown in the text, supra at pp. 6-7 
neither the removal statute nor its history give any support for such a 
distinction.



10

Appellants contend that this holding was in error, and 
that (1) the statutes cited are unconstitutional on their 
face; and (2) they provide a basis for removal under the 
decisions in Strauder, Virginia v. Rives, 100 IJ.S. 313 (1880), 
and Kentucky v. Powers, 201 U.S. 1 (1906).

A. The Georgia statutory scheme of using tax digests 
containing racial designations, as required by 
statute, in the system of jury selection is uncon­
stitutional.

The Supreme Court has long made clear that “ Jurymen 
should be selected as individuals, on the basis of individual 
qualifications, and not as members of a race.”  Cassell v. 
Texas, 339 U.S. 282, 286 (1950). Appellants contend that 
the jury selection procedures established by Georgia state 
law and used in Dougherty County, Georgia, encourage 
and permit the selection of jurors on the basis of race, in 
violation of the Fourteenth Amendment.

In Dougherty County, as elsewhere in Georgia, jury lists 
for both civil and criminal cases are selected by a jury com­
mission pursuant to Ga. Code Ann. §59-106. This requires 
the jury commissioners to check the tax books to determine 
who is qualified for jury service. Ga. Code §92-6307 re­
quires that the tax books designate the race of all taxpay­
ers. The petition for removal alleged that the result in 
Dougherty County has been to favor white representation 
on juries, with the number of Negro jurors being dispro­
portionate (R., 5, 36). Therefore, the appellants were 
denied and unable to enforce the equal protection of the 
laws in the courts of Georgia.

In the recent case of Hamm v. Virginia State Board of 
Elections, 230 F. Supp. 156 (E.D. Va. 1964), aff’d sub nom. 
Taucil v. Woolls, 379 U.S. 19, a three-judge district court 
declared that Virginia statutes requiring that lists of voters



11

and taxpayers be kept in separate books according to race 
violated the Fourteenth Amendment. The district court 
stated that it was now

axiomatic that no State can directly dictate or casually 
promote a distinction in the treatment of persons solely 
on the basis of their color. To be within the condem­
nation, the governmental action need not effectuate 
segregation of facilities directly. Cf. Anderson v. 
Martin, 375 U.S. 399, 402, 84 S.Ct. 454, 11 L.Ed. 439, 
1964. The result of the statute or policy must not tend 
to separate individuals by reason of difference in race 
or color. No form of State discrimination, no matter 
how subtle, is permissible under the guarantees of the 
Fourteenth Amendment. 230 F. Supp. at 157-158.

The vice in the use of segregated tax lists is that the 
jury selection process established by statute thus provides 
unnecessary opportunities for discrimination, and therefore 
violates the Fourteenth Amendment. In Avery v. Georgia, 
345 U.S. 559 (1953), a conviction was reversed because the 
names of potential jurymen were placed on different col­
ored slips according to race. The trial judge testified that 
he selected the slips without regard to color, but Chief Jus­
tice Vinson stated that “ Even if the white and yellow 
tickets were drawn from the jury box without discrimina­
tion, opportunity was available to resort to it at other 
stages in the selection process.” Id. at 562. And Justice 
Frankfurter, concurring said: “We may accept the testi­
mony of the judge who drew the slips from the box as to 
the honesty of his purpose; that testimony does not refute 
the fact that there were opportunities to discriminate, as 
experience tells us there will inevitably be when such dif­
ferentiating slips were used.” Id. at 564. Writing for the 
Court in Williams v. Georgia, 349 U.S. 375, 382 (1955), Jus­



12

tice Frankfurter concluded that: “ it was the system of se­
lection and the resulting danger of abuse which was struck 
down in Avery [v. Georgia] and not an actual showing of 
discrimination on the basis of comparative numbers of 
Negroes and whites on the jury lists.”

That a state must not provide unnecessary “ opportuni­
ties to discriminate” was also held by Anderson v. Martin, 
375 U.S. 399 (1964), where the Supreme Court ended the 
Louisiana practice of designating on the ballot the race of 
all candidates for public office. There was, of course, no 
positive proof that these racial designations in any way 
influenced the voting patterns of Louisiana citizens. None­
theless, the Court held that the designations were unconsti­
tutional because the state was indicating that race was “an 
important—perhaps paramount—consideration” in a voter’s 
choice. The Court added that a state cannot “ encourage its 
citizens to vote for a candidate solely on account of race. 
Cf. Steele v. Louisville <& N. R. Co., 323 U.S. 192, 203, 89 
L.Ed. 173, 183, 65 S.Ct. 226 (1944). And that which can­
not be done by express statutory prohibition cannot be 
done by indirection.”  Id. at 404. In the jury situation it is 
clear that a state cannot encourage, or even permit, its jury 
commissioners to select juries on the basis of race. But 
the Georgia procedure, “by indirection,”  both permits and 
encourages selection along racial lines, and therefore on its 
face violates the Fourteenth Amendment.

B. The unconstitutional state procedure is sufficient 
for removal.

The lower court based its holdings that §92-6307 was not 
sufficient to establish a right to removal on an interpreta­
tion of Strauder v. West Virginia, 100 U.S. 303 (1880). 
The district judge said that Strauder held that an action



13

could be removed only if a statute, by its terms, either ex­
cludes Negro citizens from service on juries or specifically 
requires their disproportionate representation (R., 37). 
Appellants contend that this interpretation misreads the 
rule of Strauder and of Virginia v. Rives, 100 U.S. 313 
(1880).

Strauder and Rives dealt with the problem of whether 
allegations in removal petitions were sufficient to deter­
mine prior to trial that there would be discrimination 
against Negroes in the selection of juries. Rives held that 
an allegation that Negroes had been excluded from juries 
in earlier cases solely because of the illegal actions of jury 
officials was not sufficient. Strauder, on the other hand, in­
volved a statute which barred Negroes from serving on 
juries; this established clearly that there would be a denial 
of equal protection before trial. Read restrictively, as the 
Supreme Court did in Kentucky v. Powers, 201 U.S. 1 
(1906), these cases can be said to stand for the proposition 
that the discriminatory acts of the jury commissioners com­
plained of must be authorized by the statutes or constitution 
of the State.6

Appellants urge that the present case clearly falls within 
this rule, since the denial of equal rights complained of 
stems directly from statutes which on their face are clearly 
unconstitutional and raise a clear inference that unconsti­
tutional discrimination against Negroes in the selection of 
jurors will take place. Thus, in Strauder the Court said:

6 It is by no means clear that the rule o f Strauder and Virginia V. 
Rives was so restrictive. See Amsterdam, Criminal Prosecutions Affecting 
Federally Guaranteed Civil Rights: Federal Removal and Habeas Corpus 
Jurisdiction to Abort State Court Trial, 113 U. Pa. L. Rev. 793, 843-45 
(1965). However, even assuming that their rule was as later set forth 
in Powers, and also assuming that these eases retain their validity, the 
present action is still removable.



14

That the petition of the plaintiff in error, filed by him 
in the State Court before the trial of his case, made a 
case for removal in the Federal Circuit Court, under 
section 641 [the predecessor of 28 U.S.C. §1443], is very 
plain, if, by the constitutional Amendment and section 
1977 of the Eevised Statutes, he was entitle ̂ immunity 
from discrimination against him in the selection of 
jurors, because of their color, as we have endeavored 
to show that he was. It set forth sufficient facts .to ex­
hibit a denial of that immunity, and a denial ■outlie 
statute law of the state. 100 U.S. at 312.

In other words, a sufficient showing is made if a petitioner 
shows that he has been denied immunity from discrimina­
tion by a statute. The constitutional vice of §92-6307, as 
shown above in section 11(A), is precisely that it denies 
appellants “ immunity from discrimination” by affording an 
unconstitutional opportunity for the exercise of prejudice. 
See Avery v. Georgia, 345 U.S. 559, at 562 and 564 (1953); 
Williams v. Georgia, 349 U.S. 375 at 382 (1955).

Virginia v. Rives, 100 U.S. 313, fully supports this inter­
pretation of Strauder. There, it was held that the petition 
for removal was faulty because:

It did not assert, nor is it claimed now, that the Con­
stitution or laws of Virginia denied to them any civil 
right, or stood in the way of their enforcing the equal 
protection of the laws. The law made no discrimination 
against them because of their color, nor any discrimina­
tion at all. 100 U.S. at 320 (emphasis added).

And later the Court indicated that a case could be removed, 
“ when a statute of the State denies his right, or interposes 
a bar to his enforcing it, in the judicial tribunals,” 100 U.S. 
at 321. Again, §92-6307 interposes precisely such a bar to



15

the full enforcement of the equal protection of the laws in 
the State of Georgia. The statute is clearly unconstitutional 
even apart from its connection with the administration of 
the jury system. See Hamm v. Virginia State Board of 
Elections, supra. And as pointed out above, such “oppor­
tunities to discriminate” (Anderson v. Martin, 375 U.S. 399 
(1964)) as provided by the section are unconstitutional 
simply because the system of selection established creates 
a danger of abuse. Therefore, an actual showing of dis­
crimination is not even required, Williams v. Georgia, 349 
U.S. 375 (1955).

Thus, because a Georgia statute, “ stands in the way” of 
the appellants’ achievement of equal rights in the state 
courts, they may remove the action to the federal court 
for trial, particularly if they are able to show the alleged 
resultant disproportion of Negro representation on juries 
in Dougherty County.



16

CONCLUSION

For the foregoing reasons, the order of the district 
court remanding appellants’ case should be reversed.

Respectfully submitted,

C. B. K ing

600 S. Jefferson Street 
Albany, Georgia

H owaed M ooee, J e .
859M> Hunter Street, N.W. 
Atlanta, Georgia 30314

J ack  Geeenbeeg 
C haeles S te ph e n  R alston  
C haeles H. J ones, J e .
M elvyn  Z aee

10 Columbus Circle
New York, New York 10019

Attorneys for Appellants

A n t h o n y  G. A msteedam  
Of Counsel



17

Certificate of Service

I hereby certify that on February 1966, I served a 
copy of the foregoing Brief for Appellants on Appellee by 
mailing copies of the same to his attorney, Mr. H. P. Burt, 
Post Office, Box 525, Albany, Georgia, by United States 
mail, air mail, postage prepaid.

Attorney for Appellants



MEILEN PRESS INC. —  N. Y. C. 21 ®