Bryan v Austin Jr Brief Opposing Motion to Dismiss or Affirm

    UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

NO. 24265

JOHN DAVIS AND FRONZIE HAZZARD,
ET. AL., 

APPELLANTS

V.

STATE OF ALABAMA,
APPELLEE

APPEAL FROM THE UNITED STATES DSTRICT COURT 
FOR THE SOUTHERN DISTRICT OF ALABAMA

BRIEF FOR APPELLEE

MacDONALD CxALLION 
Attorney General 
of Alabama
LESLIE HALL 
Assistant Attorney General 
of Alabama
250 Administrative Building 
Montgomery, Alabama 36104
J. MASSEY EDGAR
District Attorney
First Judicial Circuit of Alabama
Butler, Alabama
Attorneys for Appellee

LEE B. WILLIAMS
County Solicitor of 
Clarke County, Alabama 
Grove Hill, Alabama
Of Counsel



1

INDEX

Page

STATEMENT OF THE CASE
A. Fronzie Hazzard, et al. v. State of Alabama................  1

B. John Davis v. State of Alabama................................... 2

PROPOSITIONS OF LAW
A. Fronzie Hazzard, et al. v. State of Alabama................  3
B. John Davis v. State of Alabama................... ............... 3

ARGUMENT
A. Fronzie Hazzard, et al. v. State of Alabama................  3

B. John Davis v. State of Alabama ..................................  5

CONCLUSION
A. Fronzie Hazzard, et al. v. State of Alabama................  6
B. John Davis v. State of Alabama ..................................  6

CERTIFICATE OF SERVICE 7



TABLE OF CASES

Page

Georgia v. Rachel, 384 U. S. 780, 86 S. Ct. 1783,
16 L. Ed. 2d 925 ............................................................. 4, 5, 6

City of Greenwood v. Peacock, 384 U. S. 808, 86 S. Ct. 1800,
16 L. Ed. 2d 944 .......................................................-....... 4, 5, 6

Sunflower County Colored Pastors Association v. Trustees 
of Indianola Municipal School District (5th Circuit)
369 F. 2d 795 ....................... ....................................................  5

United States v. Penton, 212 F. Supp. 193 ..................................  5

United States v. Atkins, 323 F. 2d 733 ......................................... 5

STATUTES

Title 14, Sections 378 and 381, Code of Alabama 1940
(Recompiled 1958) .................................................................  2

42 U. S. C., Sections 1971 and 1983 ......................................... 2, 3

Voting Rights Act of 1965 .............................................................  2

42 U. S. C., Section 1985 .................................................................  2

28 U. S. C., Section 1443(1) ..................................................... 3, 4

42 U. S. C., Section 2000a...............................................................  4

CONSTITUTIONAL PROVISIONS

Fourteenth Amendment to the Constitution of the United
States .......................................................................................... ®

Fifteenth Amendment to the Constitution of the United
States ..................................................................  4

Section 182, Alabama Constitution of 1901 .............................  5

11



1

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

NO. 24265

JOHN DAVIS AND FRONZIE HAZZARD,
ET. AL.,

APPELLANTS
V.

STATE OF ALABAMA,
APPELLEE

APPEAL FROM THE UNTED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF ALABAMA

BRIEF FOR APPELLEE

STATEMENT OF THE CASE

As stated by Appellants in their brief, and as indicated by 
the Printed Record, the questions involved on this appeal arise 
out of a single order remanding removal cases and consolidated 
here.

A. Fronzie Hazzard, et al., v. Alabama

In the Hazzard case, Petitioners alleged that most of them 
had been registered to vote in Clarke County, Alabama. The 
Petition alleges by inference that they are Negroes (See Para­
graph IV, R. 18). However, on a later unspecified date (R. 21), 
one of the Attorneys for Appellants moved to stike the name 
of Haywood Murphy as a party, and the Appellee is informed 
that this was done after it was discovered that Haywood 
Murphy was a white man and had not authorized said Attor­
neys to file a Removal Petition in his behalf. So, the allegation



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in Paragraph III of the Petition (R. 17) that Petitioners notified 
said Attorneys of their indictments for perjury is incorrect in 
respect of Haywood.

Petitioners do not allege in their Petition that they are not 
guilty of the charges of perjury, which is a penitentiary offense 
(Title 14, Sections 378 and 381, Code of Alabama 1940, (Re­
compiled 1958)), carrying a punishment of not less than one or 
more than five years, but claim that these statutes are uncon- 

, stitutional as applied to them or that the Petitioners will be 
c^y^u-<Ag*^ erived )o f due process of law if prosecuted under said statutes.

They! do not allege any facts upon which such a conclusion is 
based, but allege that they are being prosecuted for acts done 
under color of authority derived from the Fifteenth Amendment 
to the Constitution and 42 U. S. C., Sections 1971 and 1983, and 
the Voting Rights Act of 1965. They do not allege wherein the 
Fifteenth Amendment, said Code sections of said Act exempt 
them from prosecution for perjury.

B. John Davis v. State of Alabama

In the Davis case, the Petitioner alleges that at the time of 
his arrest on charges of disorderly conduct and failing to obey 
the command of a law enforcement officer, he was in the Clarke 
County Courthouse assisting other persons in their efforts to 
become registered to vote, and that his arrest “ was the same day 
that the Federal Voter Bill was passed by the Congress of the 
United States.” Although the Petitioner alleges that he had 
been informed by the Sheriff of Clarke County that extra time 
would be given because of the large numbers of persons turning 
out to register to vote, he does not allege when such extra time 
was to be given, nor does he allege that the Sheriff had any 
connection with the functions of the Board of Registrars. He 
alleges that a sheriff’s deputy informed the persons lined; up to 
register and the Petitioner that the period allocated for regis­
tration had expired. He alleges further that when he sought 
clarification of this statement or “ order,”  as he puts it, he 
was charged under State law with disorderly conduct and 
failing to obey the command of a law enforcement officer (R. 3).

He further alleges that he is thus being deprived of his 
rights of freedom of speech, assembly and petition, of his



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privileges and immunities as a citizen of the United States, of 
his right to equal protection of the laws guaranteed by the 
Fourteenth and Fifteenth Amendments to the United States 
Constitution and 42 U. S. C., Section 1985, and of his rights 
under 42 U. S. C. 1971 to disseminate information concerning 
the means of registration for voting without abridgement by 
reason of race and to urge Negroes having the qualification of 
voters to register for voting (R. 4).

He further alleges that the arrest and prosecution is being 
carried on with the sole purpose and effect of harassing and 
punishing him and others and deterring him and others from 
exercising their constitutionally protected rights of free speech 
and assembly (R. 5).

He further alleges that he cannot enforce his rights in the 
courts of Clarke County “ because these courts are hostile to 
Petitioner by reason of race and by reason of the commitment 
o f these courts to enforce Alabama’s policy of racial discrimina­
tion.” He does not allege wherein these courts are hostile to 
him, nor does he allege any facts upon which he bases the con­
clusion that these courts are committed to enforce a State 
policy of racial discrimination.

PROPOSITIONS OF LAW

A. Fronzie Hazzard, et al., v. State of Alabama

28 U. S. C., Section 1443(1), does not authorize removal of 
State criminal prosecutions for perjury in making application 
for registration to vote.

B. Davis v. Alabama

The Federal Voting Rights Acts do not grant immunity 
against State prosecution of voter registration workers for 
violation of State laws.

ARGUMENT

A. Fronzie Hazzard, et al., v. State of Alabama

The prosecutions in Hazzard v. Alabama are not removable 
by virtue of the Federal Voting Rights Acts.



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The Appellants in this group of cases argue that Georgia 
v. Rachel, 384 U. S. 780, 86 S. Ct. 1783, 16 L. Ed. 2d 925, is 
applicable and that City of Greenwood v. Peacock, 384 U. S. 808, 
86 S. Ct. 1800, 16 L. Ed. 2d 944, is not applicable.

In Georgia v. Rachel, supra, the Supreme Court of the 
United States sustained removal under 28 U. S. C., Section 
1443(1) of State criminal trespass prosecutions brought against 
Negroes for refusing to leave places of public accommodation 
in which they were given a right of service without racial dis­
crimination by 42 U. S. C., Section 2000a. No such factual 
situation is presented by the Hazzard v Alabama group of cases. 
The petition for removal shows on its face that each of the 
Petitioners was indicted for the crime of perjury for making 
misstatements of fact under oath on their voter registration 
forms, which crime is a felony punishable by imprisonment in 
the penitentiary.

As was stated by the United States Supreme Court in City 
of Greenwood v. Peacock, supra:

“ It is not enough to support removal under Section 1443(1) 
to allege or show that the defendant’s federal equal civil 
rights have been illegally and corruptly denied by state 
administrative officials in advance of trial, that the charges 
against the defendant are false, or that the defendant is 
unable to obtain a fair trial in a particular state court. 
The motives of the officers bringing the charges may be 
corrupt, but that does not show that the state trial court 
will find the defendant guilty if he is innocent, or that in 
any other manner the defendant will be ‘denied or cannot 
enforce in the courts’ of the state any right under a federal 
law providing for equal civil rights. The civil rights re­
moval statute does not require and does not permit judges 
of the federal courts to put their brethren of the state 
judiciary on trial. Under Section 1443(1), the vindication 
of the defendant’s federal rights is left to the state courts, 
except in the rare situations where it can be clearly pre­
dicted by reason of the operation of a pervasive and explicit 
state or federal law that those rights will inevitably be 
denied by the very act of bringing the defendant to trial 
in the state court.”



Also, in City of Greenwood v. Peacock, it was stated:
“ And in Rachel we have concluded that removal to the 
federal court in the narrow circumstances there presented 
would not be a departure from the teaching of this court’s 
decisions, because the Civil Eights Act of 1964, in those 
narrow circumstances, ‘substitutes a right for a crime.’ ”

See, also, Sunflower County Colored Pastors Association v. 
Trustees of Indianola Municipal School District (-5th Circuit) 
369 F. 2d 795.

Very apropos is the statement made by Mr. Justice Stewart 
in City of Greenwood v. Peacock, supra, that:

“ First, no federal law confers an absolute right on private 
citizens— on civil rights advocates, on Negroes, or anybody 
else—to obstruct a public street, to contribute to the de­
linquency of a minor, to drive an automobile without a 
license, or to bite a policeman. Second, no federal law 
confers immunity from state prosecution on such charges.”

The federal rights invoked by the individual Petitioners in 
the Hazzard group of cases includes some that clearly cannot 
qualify under the statutory definition as rights under laws 
providing for “ equal civil rights.” Certainly, there is nothing 
in the Federal Civil Rights Acts or the Federal Voting Acts 
which would grant them immunity from prosecution in the 
State courts for lying under oath in connection with a matter 
which would affect their right to register to vote. Under Section 
182, Alabama Constitution of 1901, those who have been con­
victed of perjury or of any crime punishable by imprisonment 
in the penitentiary, or of any infamous crime or crime involving 
moral turpitude, are disqualified both from registering and 
from voting. See United States v. Penton, 212 F. Supp. 193, 
and United States v. Atkins, 323 F. 2d 733.

The Appellants in the Hazzard group of cases seem to 
argue that merely because they were registered to vote, they 
might with impunity commit perjury. This surely was not the 
intent of Congress.

B. Davis v. Alabama



6

In their brief the attorneys for Davis argued that because 
of the fact that Davis was aiding persons to vote or attempting 
to vote, the Federal Voting Rights Acts expressly granted him 
immunity from prosecution for disorderly conduct and other 
acts committed by him while engaged in such activities.

There is nothing in Georgia v. Rachel, supra, which can be 
read to give Davis the right to invade a courthouse and act in 
a disorderly manner. It must be borne in mind that the Petition­
ers in Georgia v. Rachel were seeking services in places of public 
accommodation. This is not true in the Davis case.

Therefore, the prosecutions of Davis fall within the prin­
ciples enunciated in City of Greenwood v. Peacock, and these 
cases were properly remanded to the State courts.

For the foregoing reasons, the Orders of the District Court 
remanding Appelants’ cases should be affirmed.

CONCLUSION

Respectfully submitted,

Assistant Attorney General 
of Alabama
250 Administrative Building 
Montgomery, Alabama 36104



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First Judicial Circuit of Alabama 
Butler, Alabama
Attorneys for Appellee

LEE B. WILLIAMS 
County Solicitor of 
Clarke County, Alabama 
Grove Hill, Alabama 
Of Counsel

CERTIFICATE OF SERVICE

I hereby certify that I have served copies of the Appellee’s 
Brief on Oscar W. Adams, Jr., 1630 4th Avenue, North, Bir­
mingham, Alabama 35203; Vernon Crawford, 578 Davis 
Avenue, Mobile, Alabama 36603; Jack Greenberg, Charles 
Stephen Ralston, Charles H. Jones, Jr., Norman C. Amaker and 
Melvyn H. Zarr, 10 Columbus Circle, New York, New York 
10019, Attorneys for Appellants, and Anthony G. Amsterdam, 
3400 Chestnut Street, Philadelphia, Pennsylvania, of Counsel, 
by United States mail, postage prepaid, this /Cl^hfay of March, 
1967.