Sulton v. Schoen Petition for Writ of Certiorari

    kapron? (Court of tlir $ttttr& States
October T erm, 1968 

No.............

I n  the

Charles E. Sulton and M ichelle Stjlton, his wife,

Petitioners,
-v.—

F rank ft. Schoen, et al.,

Respondents.

PETITION FOR W RIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

Jack Greenberg

Norman C. A maker

Melvyn Z arr
10 Columbus Circle 
New York, New York 10019

Gerald A. Smith

1500 American Building 
Baltimore, Maryland 21202

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pennsylvania 19104

Attorneys for Petitioners



I N D E X

PAGE

Opinions Below .................................................................. 1

Jurisdiction ........— ....... .................- ............................... 2

Question Presented .......................................................... 2

Statutes Involved ................. ........................-..................  2

Statement of the Case ..................................................  3

R easons eor Granting the W rit

Certiorari Should Be Granted to Correct the Court 
of Appeals’ Restrictive Construction of Civil 
Rights Removal Jurisdiction, Which Cripples the 
Protection Due Civil Rights and Conflicts With 
Decisions of This Court and the Court of Appeals
for the Fifth Circuit ................................................  6

Conclusion...........................................................................—- I I

T able oe Cases

Achtenberg v. Mississippi, 393 F. 2d 468 (5th Cir. 1968) 9

Georgia v. Rachel, 384 U. S. 780 (1966) ............. .....6,7,9
Greenwood v. Peacock, 384 U. S. 808 (1966) ..................  6

Kentucky v. Powers, 201 U. S. 1 (1906) ............. .......  10



u

PAGE

New York v. Davis, Second Circuit, No. 32989, decided 
March 28, 1969 .............................................................. 6, 8

Walker v. Georgia, 381 U. S. 355 (1965) ............  8
Walker v. Georgia, 5th Cir., Nos. 26271 and 26332 ..... 8
Walker v. Georgia, 405 F. 2d 1191 (5th Cir. 1969) ....9,10
Wilson v. Republic Iron and Steel Co., 257 U. S. 92

(1921) ................................................_..................... ...... 10
Wyche v. Louisiana, 394 P. 2d 927 (5th Cir. 1967) .... 9

Statutes I nvolved

28 U. S. C. §1254(1) .................................................... 2

28 U. S. C. §1443(1) .................................................. 2,3,9

42 U. S. C. §3617 .......................... ............................ 3,5,7



I n the

# upn w  Qlmtrt nf tl?e Ittiteii States
October Term, 1968 

No.............

Charles E. Sulton and Michelle Sulton, his wife,

Petitioners,
—v.—

P rank R. Schoen, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

Petitioners pray that a writ of certiorari issue to review 
the judgment of the United States Court of Appeals for 
the Fourth Circuit entered May 9, 1969.

Opinions Below

The opinion of the United States Court of Appeals for 
the Fourth Circuit affirming the district court’s order of 
remand is unreported and is set forth in the Appendix, 
p. la, infra.

The opinion of the United States District Court for the 
District of Maryland is unreported and is set forth in the 
Appendix, p. 3a, infra.



2

Jurisdiction

The judgment of the United States Court of Appeals for 
the Fourth Circuit was entered May 9, 1969.

Jurisdiction of this Court is invoked pursuant to 28 
U. S. C. §1254(1) to review the Court of Appeals’ affirm­
ance of the district court’s order remanding respondents’ 
civil action against petitioners to the state court from 
which it was removed pursuant to the federal civil rights 
removal statute, 28 U. S. C. §1443(1).

Question Presented

Are the Court of Appeals’ restrictions on civil rights 
removal jurisdiction consistent with decisions of this Court 
and the Court of Appeals for the Fifth Circuit?

Statutes Involved

This case involves the operation of 28 U. S. C. §1443(1) 
as it pertains to the protection afforded rights conferred 
by 42 U. S. C. §3617.

1. 28 U. S. C. §1443(1) provides:

§1443. Civil rights cases

Any of the following civil actions or criminal prose­
cutions, 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:



3

(1) Against any person who is denied or cannot en­
force 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 juris­
diction thereof; .  . .

2. 42 U. S. C. §3617 (enacted as §817 of the Fair Hous­
ing Act of 1968) provides:

§3617. Interference, coercion, or intimidation; en­
forcement of civil action.

It shall be unlawful to coerce, intimidate, threaten, 
or interfere with any person in the exercise or enjoy­
ment of, or on account of his having exercised or en­
joyed, or on account of his having aided or encouraged 
any other person in the exercise or enjoyment of, any 
right granted or protected by section 3603, 3604, 3605, 
or 3606 of this title. This section may be enforced by 
appropriate civil action. [Pub. L. 90-284, Title VIII, 
§817, Apr. 11, 1968. 82 Stat. 89.]

Statement of the Case

Petitioner Charles E. Sulton, a Negro, lives with his 
wife Michelle, who is white, in a home in an otherwise 
all-white subdivision known as Captain’s Cove in Oxon 
Hill, Prince George’s County, Maryland (R. 6).

On September 13, 1968, their immediate neighbors, re­
spondents herein, claiming that the Sultons were a nui­
sance, brought suit against them in the Circuit Court of 
Prince George’s County, seeking $300,000.00 in damages 
and injunctive relief. In support of their claim for dam­
ages, respondents alleged that, since the Sultons had



4

moved into the neighborhood, they had caused or permitted 
“loud and offensive sounds, including threats, name call­
ing, insults and cursing . . . telephone calls, gesturing and 
untrue accusations to the police, as well as by shining 
lights into the plaintiffs’ windows . . . ” (R. 17).

In support of their claim for injunctive relief, respon­
dents, suing on their own behalf and on behalf of other 
white neighbors, alleged that, since the Sultons had moved 
into the neighborhood, they had engaged in “name calling, 
insulting, cursing, gesturing, assaulting, making untrue 
accusations against the neighbors to the police, the build­
ing inspector, the electrical inspector, the FBI, the Senate 
of the United States, the House of Representatives of the 
United States and the Defense Department of the United 
States, and shining lights during the night into their win­
dows” (R. 20).

The Sultons removed the case to the United States Dis­
trict Court for the District of Maryland pursuant to 28 
U. S. C. $1443(1), the federal civil rights removal statute, 
claiming that the suit was completely baseless and yet 
another stratagem in the neighbors’ persistent campaign 
to force them—because of Mr. Sulton’s race—from the 
white neighborhood (R. 8-9). Included in this campaign 
have been the direction of shotgun fire, cherry bombs and 
other explosive devices at the Sultons’ home; the destruc­
tion of a wire fence separating their home from the home 
of respondents Wood; the staining of the Sultons’ canvas 
awnings by the placing of wild berries thereon; the utter­
ing of racial epithets at the Sultons; the making of mali­
cious charges of the Sultons’ misconduct to the police and 
other officials of Prince George’s County; and the making 
of false and malicious reports of misconduct to the United



5

States Department of Defense, where Mr. Sulton is em­
ployed, and to the Immigration and Naturalization Service 
(Mrs. Sulton is a naturalized citizen) (E. 6-7).

The Sultons claimed that this campaign of harassment 
to force them from the white neighborhood deprived them 
of rights under §817 of the Fair Housing Act of 1968, set1 
forth, p. 3, supra, which protects from interference, coer­
cion, or intimidation the quiet enjoyment of housing covered 
by the Act.

The district court refused to afford petitioners an evi­
dentiary hearing to prove their claims and disallowed re­
moval on the pleadings, holding (E. 109; App. p. 11a, 
infra) :

No federal law permits a man to disturb and harass 
his neighbors and no federal law prohibits a neigh­
bor from suing a neighbor to enjoin a possible nui­
sance. Yet, if the Sulton claim is true, if his neigh­
bors are attempting to harass and deprive him of 
his right to own and enjoy his home in that community 
because of his race or his interracial marriage, then a 
grave injustice is being done to him. But Sulton has 
made no allegation, nor do I think he can in good 
faith make an allegation, that the judges and/or 
other officials of the State of Maryland, particularly 
of Prince George’s County, have exhibited conduct 
which could possibly be construed as evidence that his 
federal civil rights will inevitably be denied by them.

The district court granted a stay of its remand order 
pending appeal to the Court of Appeals for the Fourth 
Circuit. That court, on May 9, 1969, vacated the stay and 
summarily affirmed the district court’s judgment on the



6

district court’s opinion and the opinion of the Court of 
Appeals for the Second Circuit in New York v. Davis, 
Second Circuit, No. 32989, decided March 28, 1969, petition 
for writ of certiorari filed April 28, 1969, No. 2006 Misc.

REASONS FOR GRANTING THE W RIT

Certiorari Should Be Granted to Correct the Court of 
Appeals’ Restrictive Construction of Civil Rights Re­
moval Jurisdiction, Which Cripples the Protection Due 
Civil Rights and Conflicts With Decisions of This Court 
and the Court of Appeals for the Fifth Circuit.

The district court refused petitioners an evidentiary 
hearing to prove their case for removal for two reasons:

1. Petitioners made no allegation that the Maryland 
courts would refuse to fairly entertain their federal claims; 
and, 2

2. “ No federal law permits a man to disturb and harass 
his neighbors” (R. 109; App. p. 11a, infra).

The first ground of decision is plainly inconsistent with 
this Court’s decisions in Georgia v. Rachel, 384 U. S. 780 
(1966) and Greenwood v. Peacock, 384 U. S. 808 (1966). 
Petitioners made no such allegation because this Court 
has squarely held that §1443(1) “does not require and 
does not permit the judges of the federal courts to put 
their brethren of the state judiciary on trial” (Peacock, 
supra, 384 U. S. at 828). In Rachel, supra, this Court 
allowed removal quite without regard to the fairness of 
the judges and/or other officials of the State of Georgia 
or the possibility that the removal petitioners there



7

“might eventually prevail in the state court” (384 U. S. 
at 805).

Rather, this Court held in Rachel that civil rights re­
moval jurisdiction is available in the service of rights 
granted by a law providing for equal civil rights when­
ever these rights are denied by the mere pendency of a 
state criminal prosecution.1

The second ground of the district court’s decision is 
more troublesome because of its cryptic brevity.

Petitioners did not claim in the district court, nor do 
they claim here, a federal right to disturb and harass their 
neighbors. Quite the contrary. Petitioners claimed that 
the suit against them was completely baseless and yet 
another device in the white neighbors’ campaign to resegre­
gate the neighborhood, in violation of the Sultons’ rights 
under the Fair Housing Act of 1968.2

Indeed, the district court conceded that if the Sultons’ 
version of the facts were true, a “grave injustice” was 
being done them. Nonetheless, the district court refused 
petitioners an evidentiary hearing to prove their version 
of the facts.

Although the district court did not elaborate its reason­
ing, the Court of Appeals apparently based its affirmance 1 2

1 The courts below assumed for purposes of decision that §817 is 
a law providing for equal civil rights which immunizes from state 
prosecution the quiet enjoyment of fair housing rights. Briefing 
of this issue can await plenary consideration.

2 This assumes, of course, that the housing in question is covered 
by §§803-06 of the Pair Housing Act. The courts below so assumed, 
and this Court should, as it did in Georgia v. Rachel, 384 U. S. 780, 
805, n. 31 (1966), direct the district court, on remand, to determine 
coverage.



8

on the reasoning of New York v. Davis, supra, decided 
after the district court’s decision and now pending on writ 
of certiorari in this Court, No. 2006 Misc.

In Davis, the Court of Appeals for the Second Circuit 
held that civil rights removal jurisdiction is limited to 
cases in which the state proceeding openly and specifically 
attacks conduct protected by a federal law providing for 
equal civil rights. Thus, the Second Circuit read Rachel 
as sustaining removal because the state prosecution of 
Rachel for trespass openly and specifically attacked the 
mere presence of Negroes in an establishment covered by 
Title II of the Civil Rights Act of 1964. Under the Davis 
analysis endorsed below, if Rachel had been charged with, 
say, creating a nuisance in the restaurant by using loud 
and offensive language, then this Court would have dis­
allowed removal, while refusing him an evidentiary hear­
ing to prove that the state charges were a baseless ploy 
designed to harass him for the purpose of denying him 
his rights to equal public accommodations.

Petitioners urge that certiorari be granted to correct this 
misreading of Rachel, which offers a plain and easy path 
to evasion of the protection due civil rights.3

The Court of Appeals for the Fifth Circuit has con­
sistently blocked this path to evasion, and its decisions are 
in direct conflict with the decision below. Most recently,

3 This danger of evasion is not merely speculative. Mardon R. 
Walker, who sought nondiscriminatory treatment in the place of 
public accommodation involved in Rachel and whose trespass con­
viction was reversed by this Court in Walker v. Georgia, 381 U. S. 
355 (1965), was reindicted after this reversal on the same facts for 
a crime other than trespass (malicious mischief). She removed her 
prosecution to the United States District Court for the Northern 
District of Georgia, which afforded her an evidentiary hearing but 
disallowed removal. See Walker v. Georgia, Fifth Circuit, Nos. 
26271 and 26332, appeals pending.



9

in Walker v. Georgia, 405 F. 2d 1191 (5th Cir. 1969), the 
removal petitioner, a Negro, was charged with assault 
against some white persons outside a restaurant. He al­
leged in his removal petition that the charge was false and 
simply fabricated by those persons to keep the restaurant 
segregated. The district court refused to resolve the fac­
tual dispute, and the Court of Appeals held this to he 
error, in language particularly pertinent here (405 F. 2d 
at 1192):

The [district] court stated that it was expressing 
no opinion one way or the other as to what actually 
happened when appellant sought service at the res­
taurant and during the altercation which followed. 
Rather, we perceive that the Court heard evidence 
only to the point of determining whether the state was 
in good faith contending that Walker committed acts 
which were not immune from state prosecution. The 
Court went on to hold that the conduct charged, mainly 
assault, was not so immune. This, the Court could not 
do, without resolving the facts surrounding the alter­
cation with respect to assault vel non . . . We reiterate 
what we said in Wyche [v. Louisiana, 394 F. 2d 927 
(5th Cir. 1967)],4 i.e., that it is not the state charge

4 In Wyche, the removal petitioner was charged with aggravated 
burglary and he removed, claiming that the charge was motivated 
by an attempt to prevent his enjoyment of a truck stop covered 
by Title II of the Civil Rights Act of 1964. The Court of Appeals 
reversed the district court’s refusal to afford the removal petitioner 
an evidentiary hearing. See also Achtenberg v. Mississippi, 393 
F. 2d 468 (5th Cir. 1968) (vagrancy prosecution held removable).

No different rule applies to civii cases. Section 1443 does not 
distinguish between “ civil actions or criminal prosecutions.”  Nor 
could it reasonably do so : a different result could not have been 
reached in Rachel if the restaurateur had brought a civil suit 
against Rachel seeking to restrain him on grounds of race from 
“ trespassing” in the restaurant.



10

which controls; rather, what appellant was actually 
doing with respect to the exercise of his federally pro­
tected rights. (Emphasis added.)

Not only does the decision below offer those who would 
deny federal civil rights an easy device to defeat the fed­
eral jurisdiction enacted to protect these rights, but it is 
inconsistent with accepted practice in the federal courts 
in dealing with removal petitions, whether in civil rights 
cases or others. That practice does not leave the federal 
courts powerless to inquire, by the taking of evidence if 
necessary, into the true nature and circumstances of the 
cause sought to be removed, whatever its paper coating 
in the state courts. See Kentucky v. Powers, 201 U. S. 1, 
33-35 (1906) ;  Wilson v. Republic Iron and Steel Go., 257 
U. S. 92, 97-98 (1921).5 Under the Fourth Circuit’s read­
ing of Rachel, the only way the protection of the civil 
rights removal jurisdiction would be available to the Sul- 
tons was if their neighbors had sued to evict them for 
integrating the neighborhood. But there is no such cause 
of action in Maryland, so, petitioners claim, the neighbors 
employed what law was available to the same illicit end. 
This is a serious and important claim, and petitioners 
should have a chance to prove it.

5 Petitioners do not ignore language in Greenwood v. Peacock, 
384 U. S. 808, 826-27 (1966), which seems to suggest that removal 
may he defeated by the plaintiffs’ choice of cause of action. But, 
in the context of the Court’s holding that the removal petitioners 
there had not invoked a federal equal civil rights statute which 
protected their conduct and entitled them to removal, this dictum 
cannot be regarded as overturning the long-settled rule that, absent 
an evidentiary hearing, the factual allegations of the removal peti­
tion are to be taken as true. Kentucky v. Powers, supra.



11

CONCLUSION

For the foregoing reasons, petitioners pray that the 
writ of certiorari be granted.

Kespectfnlly submitted,

Jack Greenberg

Norman C. A maker

Melvyn Z arr

10 Columbus Circle 
New York, New York 10019

Gerald A. Smith

1500 American Building 
Baltimore, Maryland 21202

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pennsylvania 19104

Attorneys for Petitioners



A P P E N D I X



APPENDIX

Opinion and Judgment of the United States Court 
of Appeals for the Fourth Circuit

UNITED STATES COURT OP APPEALS 
P oe the F ourth Circuit 

No. 13,395

F rank R. Schoen, and D oeothy L. Schoen, his wife, and 
E rnest M. W ood and Janice G. W ood, his wife, and 
F eank R. Schoen, D oeothy L. Schoen, E rnest M. 
W ood, Janice G. W ood, for themselves and all others 
similarly situated,

Appellees,
versus

Charles E. Sitlton and M ichelle Stjlton, his wife,

❖
Appellants.

Appeal from the United States District Court for the 
District of Maryland, at Baltimore. Edward S. Northrop, 
District Judge.

--------------- * ---------------

(Argued May 8, 1969 Decided May 9, 1969.)
--------- »•«---------

B e f o r e  :
B oreman, W inter and Craven, Circuit Judges.

Melvyn Zare (Jack Greenberg, Norman C. 
Amaker, Anthony G. Amsterdam and Gerald 
A. Smith on brief), for Appellants, and 

E lsbeth L. B othe and R onald A. W illoner, 
for Appellees.

--------- *---------



2a

P ee Cueiam :

This is an appeal from an order of the District Court 
for the District of Maryland remanding the case to the 
Circuit Court of Prince George’s County, Maryland, from 
which it had been removed to the court below on petition 
of the appellants.

We affirm on the opinion of the district court, Frank R. 
Schoen et al. v. Charles E. Sulton et al., Charles E. Sulton
et al. v. Frank R. Schoen et al., ------  F. Supp. ------  (D.
Md.), Civil Action No. 19922, March 14, 1969. See also
New York v. David Davis, opinion by Judge Friendly,------
F. 2d ------, 37 Law Week 2584 (2 Cir. March 28, 1969).

Affirmed.



3a

Opinion and Judgment of the United States District 
Court for the District of Maryland

I n the

UNITED STATES DISTRICT COURT 
F or the D istrict of Maryland 

No. 19922 Civil Action

F rank R. Schoen and Dorothy L. Schoen, his wife and 
E rnest M. W ood and Janice G. W ood, Ms wife and 
F rank R. Schoen, D orothy L. Schoen, E rnest M. 
W ood, Janice G. W ood, for themselves and all others 
similarly situated,

Charles E. Stilton and M ichelle Sulton, his wife.

Charles E. Sulton and M ichelle Sulton, his wife,

— v.—

F rank R. Schoen and D orothy L. Schoen, his wife and 
E rnest M. W ood and Janice G. W ood, his wife, J ohn 
Crowley and Roberta Crowley, his wife; Mrs. H arry 
K een ; J oe K een ; L. H. Mattingly and K itty Mat­
tingly, Ms wife; T homas O’L oughlin and L ibbie 
O’L oughlin, his wife; F rederick F. P fluger and A udra 
P fluger, his wife; R oland R obison and J oyce R obi­
son, Ms wife; H oward R udnick and Eva R udnick, his 
wife; R oger Shoch and A nn Shoch, M s wife; A. R. 
W ren and Betty W ren, his wife and W illiam F. R obie 
and K athleen R obie, M s wife.

Filed: March 14, 1969



4a

R onald W illoner, College Park, Maryland, and 
E lsbeth L evy B othe, Baltimore, Mary­
land, for plaintiffs and counter-defendants, 
ScJioen and Wood.

Gerald A. Smith , Baltimore, Maryland, for de­
fendants and counter-plaintiffs.

Northrop, District Judge:

This controversy began when the plaintiffs, who are 
neighbors of the defendants, filed suit to enjoin a nuisance 
in the Circuit Court of Prince George’s County.1 Defen­
dants petitioned to remove the ease to this court pursuant 
to 28 U. S. C. §1443(1). After removal to this court the 
defendants answered and counterclaimed against the origi­
nal plaintiff and other neighbors. The gist of this entan­
glement is that Schoen and other neighbors who originally 
joined in his complaint allege that Sulton and his wife, 
an interracial couple, have caused incessant turmoil in 
their neighborhood including arguing, bickering, and 
assaulting various neighbors culminating in false accusa­
tions to the local police, the FBI, and other agencies of 
the government. Defendants allege in their counterclaim 
and by way of defense that it is the plaintiffs and other 
neighbors, motivated by racial prejudice to their marriage, 
who have threatened and harassed them with firecrackers, 
racial epithets, and other harassing action including false 
accusations to the Department of Defense (where Sulton 
works) and the United States Immigration and Naturali­
zation Service (Mrs. Sulton, French by birth, is a natural­

1 As can be seen by the statement of fact, and as represented by 
counsel for both sides, this neighborhood conflict has been develop­
ing for some time prior to the institution of suit.



5a

ized citizen). Schoen and the other original plaintiffs now 
seek to challenge the propriety of removal of this case to 
the federal court.

Removal was pursuant to the civil rights’ removal pro­
visions of §1443(1) of Title 28 which read:

Any of the following civil actions or criminal prosecu­
tions, 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 en­
force 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 juris­
diction thereof . . . .

It is the position of Schoen that this case can properly 
be removed only if two qualifications are present: (1) the 
cause of action instituted in the state court is one which 
infringes upon civil rights specifically granted or protected 
by a federal law, and (2) these rights will be denied or 
cannot be enforced in the state courts. Defendant Sulton 
and his wife would have us hold that the bringing of this 
suit in the state court is in itself a denial of the civil 
rights of the defendants. Sulton contends that this suit 
has been brought or motivated by racial prejudice to 
harass Sulton and his wife and, thus, the suit itself is in 
violation of the defendants’ federal civil rights to own and 
enjoy property and home as guaranteed by 42 U. S. C. 
§1982 and 42 U. S. C. §3617 (§817 of the Fair Housing



6a

Act of 1968).2 Defendant also argues that this court must 
hold an evidentiary hearing (which, as a practical matter, 
would involve hearing the entire substantive case) to de­
cide if the Schoen suit is motivated by racial prejudice. 
According to the defendants, if this court so finds racial 
motivation, it must halt or insure the cessation of further 
state court proceedings against the Sultons. Counsel for 
Sulton concedes that under the procedure he has outlined, 
if the court determines the suit is not racially motivated, 
then the case must be returned to the state court. In sup­
port of his theory, defendant primarily relies upon two 
cases, Georgia v. Rachel, 384 U. S. 780 (1966) and City of 
Greenwood v. Peacock, 384 U. S. 808 (1966).

Upon consideration of defendants’ theory and his au­
thorities, the court emphatically agrees with the plaintiff 
that the case must be remanded to the state courts. While 
all citizens have a right to be free from vexatious litigation 
and, assuming without deciding that plaintiffs have a right 
under federal civil rights’ legislation to be free from legal 
and other harassments in owning and enjoying their home, 
the mere fact that one party believes that a suit has been 
brought to vex him is not cause to remove that case to 
federal court. To remove a case to federal court one must 
have more than an infringement of a federally-protected

2 This section reads: Interference, Coercion, or Intimidation. It 
shall be unlawful to coerce, intimidate, threaten, or interfere with 
any person in the exercise or enjoyment of, or on account of Ms 
having exercised or enjoyed, or on account of his having aided or 
encouraged any other person in the exercise or enjoyment of, any 
right granted or protected by section 3603 (803), 3604 (804), 3605 
(805), or 3606 (806). This section may be enforced by appropriate 
civil action.



7a

civil right; there must be showing that the state courts 
will not fairly enforce that right, Baines v. City of Dan­
ville, 357 F. 2d 756 (4th Cir. 1966); Maryland v. Brown, 
—-—- F. Supp.------ (I). Md. 1968 [Criminal No. 28193 de­
cided January 23, 1969]. See also House v. Dorsey, Misc. 
No. 504 decided by the United States Court of Appeals for 
the Fourth Circuit on November 22, 1968.2a

Here there has been no showing and no allegation that 
the courts of Prince George’s County, Maryland, or any 
other county3 are racially prejudiced as to the defendants 
so as to deny their legitimate federal civil rights or any 
other rights which they seek to enforce. If after hearing 
the evidence in this case, the state court determines that 
the Schoen suit has been brought to vex and harass de­
fendants and is motivated by racial prejudice, it has full 
judicial power to remedy that wrong. Indeed, whatever 
decision the state court may reach in this matter, as a 
local court it is in far better position to judge the injunc­
tive needs, if any, of these people and to enforce any rem­
edy it might choose to grant.

Rachel and Peacock, contrary to the defendants’ argu­
ment, support the position this court has taken. In Rachel 
the defendants alleged that they were indicted in a Georgia 
state proceeding for criminal trespass resulting from their 
peaceful efforts to obtain service at privately owned Ala­
bama restaurants open to the general public, but not to 
members of the Negro race, and that these arrests occurred

2a See also Naimaster v. NAACP, ------  F. Supp. ------  (D. Md.
1969), decided March 5, 1969, by C. J. Thomsen.

3 Upon written oath of either party this case may be removed 
to another county in Maryland, Rule 542, Maryland Rules of Pro­
cedure, Volume 9B of the Annotated Code of Maryland.



8a

solely in the context of racial discrimination. The Court 
agreed that if the allegations were true, removal was war­
ranted because

“ [T]he removal petition alleges, in effect, that the de­
fendants refused to leave facilities of public accommo­
dation, when ordered to do so solely for racial reasons, 
and that they are charged under a Georgia trespass 
statute that makes it a criminal offense to refuse to 
obey such an order. The Civil Rights Act of 1964, how­
ever, as Hamm v. City of Rock Hill, 379 U. S. 306 
(1964), made clear, protects those who refuse to obey 
such an order not only from conviction in the state 
courts, but from prosecution in those courts. . . . Hence 
if as alleged in the present removal petition, the de­
fendants were asked to leave solely for racial reasons, 
then the mere pendency of the prosecutions enables the 
federal court to make the clear prediction that the 
defendants will be ‘denied or cannot enforce in the 
court of [the] State’ the right to he free of any ‘at­
tempt to punish’ them for protected activity. . . . The 
burden of having to defend the prosecutions is itself 
the denial of a right explicitly conferred by the Civil 
Rights Act of 1964 as construed in Hamm v. City of 
Rock Hill, supra.” 384 H. S. at 804-5.

In Peacock, the defendants alleged that while engaged in 
civil rights’ activities in Greenwood, Mississippi, they 
were arrested and prosecuted for obstructing the public 
streets. They claimed these arrests were solely caused by 
state and city policies of racial discrimination. But the 
Court speaking, as it did in Rachel, through Mr. Justice 
Stewart denied removal and explained:



9a

“ In Rachel the defendant relied on the specific pro­
visions of a pre-emptive federal civil rights law . . . 
that under the conditions alleged, gave them (1) the 
federal statutory right to remain on the property of 
a restaurant proprietor after being ordered to leave, 
despite a state law making it a criminal offense not to 
leave, and (2) the further federal statutory right that 
no State should even attempt to prosecute them for 
their conduct. . . . The present case differs from 
Rachel in two significant respects. 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 delin­
quency of a minor, to drive an automobile without a 
license, or to bite a policeman. Second, no federal law 
confers immunity from state prosecutions on such 
charges.” 384 IT. S. at 826.

The Court went on to hold:

“ To sustain removal of these prosecutions to a 
federal court upon the allegations of the petitions in 
this case would therefore mark a complete departure 
from the terms of the removal statute, which allow 
removal only when a person is ‘denied or cannot en­
force’ a specified federal right in the courts of [the] 
State, and a complete departure as well from the con­
sistent line of this Court’s decisions . . . .  The civil 
rights removal statute does not permit the judges of 
the federal courts to put their brethren of the state 
judiciary on trial. Under §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



10a

predicted 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.”  384 U. S. at 
828-29. (Emphasis supplied.)

Thus, the clear teachings of Rachel and Peacock are 
that the two requirements of §1443(1) must be met to 
justify removal under the federal civil rights removal 
statute. Those two requirements are (1) a right guaran­
teed by federal law, which (2) is denied or cannot be en­
forced in the State courts. In Rachel the Court held that 
the two requirements would be met and removal would be 
justified if the allegations were true because under a unique 
federal statute not only was it a federal civil right to be 
served in a place of public accommodation, but it was 
also a federal civil right to be free from prosecution for 
seeking to exercise that right. Thus, the indictment by 
the state court in violation of the defendants’ right to be 
free from prosecution was evidence or proof that the de­
fendants would “be denied or cannot enforce” their federal 
civil rights in the state courts.

In Peacock, which is more akin to the alleged situation 
here, the Court found the two requirements were not met 
because there was and is no federal right to obstruct a 
public street, and there is certainly no federal right to 
be free from arrest and prosecution under such charges. 
As Mr. Justice Stewart noted, if it was true that the 
arrests and prosecutions of the defendants were based on 
racial prejudice, where an attempt to deprive the defen­
dant of civil rights guaranteed by federal law, then a 
grave injustice had been done, but the question then before



11a

the Court was limited to the removability of this case 
under §1443(1). To that the Court’s answer was emphatic:

“Unless the words of this removal statute are to be dis- 
garded and the previous consistent decisions of this 
Court completely repudiated, the answer must clearly 
be that no removal is authorized in this case.” 384 
U. S. at 831.

The same is true here. No federal law permits a man 
to disturb and harass his neighbors and no federal law 
prohibits a neighbor from suing a neighbor to enjoin a 
possible nuisance. Yet, if the Sulton claim is true, if his 
neighbors are attempting to harass and deprive him of 
his right to own and enjoy his home in that community 
because of his race or his interracial marriage, then a 
grave injustice is being done to him. But Sulton has made 
no allegation, nor do I think he can in good faith make an 
allegation, that the judges and/or other officials of the 
state of Maryland, particularly of Prince George’s County, 
have exhibited conduct which could possibly be construed 
as evidence that his federal civil rights will inevitably 
be denied by them.

In conclusion, the court notes that if the defendant’s 
theory were accepted, federal court would have to hold, 
at the very least, evidentiary hearings in every case 
brought in the state court which the defendant alleged was 
motivated by racial prejudice. Such a result, aside from 
the immense administrative problems it would pose, would 
sound the destruction of the independent state judiciary 
system and would establish a federal judiciary that was 
never intended by the Constitution or by Congress.



12a

Wherefore, in consideration of the matters set forth in 
the above opinion, it is this fourteenth day of March, 1969, 
Ordered that the plaintiffs’ motion to remand this case 
to the Circuit Court of Prince George’s County, Maryland, 
is hereby Granted.

E dward S. Northrop 
United States District Judge



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