Georgia v. Rachel Oral Argument Transcription
Public Court Documents
April 26, 1966

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Brief Collection, LDF Court Filings. Georgia v. Rachel Oral Argument Transcription, 1966. 84f5e928-b39a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/14fa40ea-cb6f-4fd7-94e0-a965793c2d94/georgia-v-rachel-oral-argument-transcription. Accessed April 22, 2025.
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In The SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1965 Washington, D. C. GEORGIA, Petitioner, vs. THOMAS RACHEL, ET AL Respondents April 26, i960 No. 147 W A R D & P A U L OFFICIAL REPORTERS 917 G STREET, N. W. Washington, D. C. 20001 ( 4266 ) 4267 6 2 8 ' ) 4268 ( 4269 Shelburne wh IN THE SUPREME COURT OF THE UNITED STATES 14 OCTOBER TERM, 1965 GEORGIA, Petitioner, vs. THOMAS RACHEL, et al. Respondents. No. 147 Washington, D. C. Tuesday, April 26, 1966. The above-entitled matter came on for oral argument at 10:00 o’clock a.m. PRESENT: The Chief Justice, Earl Warren, and Associate Justices Black, Douglas, Clark, Harlan, Brennan, Stewart, White and Fortas. APPEARANCES: On behalf of the Petitioner: J. ROBERT SPARKS- Assistant Solicitor General Atlanta Judicial Circuit On behalf of the Respondents: ANTHONY G. AMSTERDAM 3400 Chestnut Street Philadelphia, Pennsylvania 19104 *•' Shelburne wh C O N T E N T S Argument on behalf of the Petitioner by Mr. Sparks PAGE 15 Argument on behalf of the Respondent by Mr. Amsterdam 38 15 2 THE CHIEF JUSTICE: Number 147, the State of Georgia petitioner, versus Thomas Rachel, et al, Mr. McPherson, had you finished your argument? MR. MC PHERSON: I have, Mr. Chief Justice. THE CHIEF JUSTICE: Mr. Sparks, you may proceed with your argument. ARGUMENT ON BEHALF OF THE PETITIONER BY J. ROBERT SPARKS, ASSISTANT SOLICITOR GENERAL ATLANTA JUDICIAL CIRCUIT MR. SPARKS: Mr. Chief Justice and Honorable Associate Justices, I am going to make my argument upon the merits of the case, if this court reaches the merits. Georgia insists and Mr. McPherson ably argued yesterday that this case should not even be here in the first place because the Notice of Appeal was filed 16 days after the District Court order of remand. However, in the event the court disagrees with our position, I am going to try to briefly state the position of the State of Georgia in this matter. As the Court is undoubtedly aware, this is an extremely complex problem of construction of the removal suit, the so-called Civil Rights Removal Statute, which is 29 U.S.C. 1443. It dates back to the Reconstruction Congress in 1866, the first Civil Rights Act, enacted right after the conclusion of the war between The states, granting the right of removal to any person who is unable to enforce or is denied his rights in a state court under any lav/ providing for equal civil rights for all 16 citizens of the United States. In 1380 we have the first definitive construction of that statute, two cases which this honorable Court, Strauder versus West Virginia in 100 U„S. at 303, and Virginia versus Rives in 100 US at 313, both decided the same day. There is one essential difference between the two cases. Both cases involved an alleged deprivation by Negro defendants charged with capital offenses in West Virginia and in Virginia. Their complaint — the reason for which they claimed the right to remove the cases from state courts to the Federal Circuit Court at that time was that it was a deprivation or a systematic exclusion of Negroes from the traverse jury. Now, in the Strauder case West Virginia at that time had a provision in their constitution which limited electors tc white persons with senatorial qualifications. And then they had a sta tute which in turn said that only electors could serve as grand jurors and traverse jurors. On the other hand, Virginia had no such statute or provision in their constitution. The allegation in the Virginia case was that jury commissioners, judges and state officials were systematically excluding Negroes from traverse and grand juries, although not required to do so by statute. At that time this honorable Court held in the Strauder case that removal was proper, and should have been granted, and they reversed the conviction. And the Strauder case reached this honerable court through the usual procedure of appeal through the state courts and 17 certiorari to the highest court of that state. Nov/, Virginia filed a petition in this honerable Court for a writ of mandamus against Circuit Court Judge Rives, who had accepted a petition for removal and issued a writ of habeas corpus, and had denied — excuse me, I don't think Virginia even filed a petition to remand, they just came straight to this Court for an order of mandamus. And this honorable Court, in a unanimous decision, held in Virginia versus Rive s that in order for a defendant, to remove his case under the Civil Rights Statute, that there must be a discrimination set out by the state statute or a state order that any alleged discrimination or denial of equal rights by any per soil other than by state statute was not removable, and that the proper remedy for such defendants v/as to defend themselves through the court and reserve their Federal rate and then apply to this honorable Court for certiorari. And Your Honors, Georgia stands today on the Virginia versus Rives case and seven other cases decided by this honorable Court, beginning in 1880 and going through 1906, Kentucky versus Powers being the last expression on this subject, in 201 U.S., page 1. In eight consecutive rulings of this Court has heild the same thing, that is, that there must be a state statute which prevents the exercise of a constitutional right , a state statute which is either unconstitutional or which denies a defendant in 18 the state court an equal right. This is the first time that this issue has reached this honorable Court since 1906. And as I say, Georgia stands on those eight decisions of this honorable Court, plus four courts of appeal which have held to the same effect, three of them within the last two years. The three that I refer to in the last two years was the Second Circuit Court of Appeals in New York versus Galamison — and incidentally, this honorable Court denied certiorari in that case — the City of Chester, South Carolina versus Anderson — - that is by the Third Circuit Court of Appeals — and a recent decision by the Fourth Circuit Court of 2\ppeals — JUSTICE STEWART: If I may interrupt just a minute, that wasn't South Carolina, that was Chester, Pennsylvania, wasn't it, the Third Circuit? MR. SPARKS: Yes, you are right, Chester(Pennsylvania, excuse me. And the Fourth Circuit case is Baines versus the City of Danville, Virginia. That case has only recently been decided by a majority of the Fourth Circuit Court of Appeals, I believe in February. It has not come out in the advance sheet yet. And the Sixth Circuit Court of Appeals in some slightly older cases, Hull versus Jackson County Circuit Court, and Snypp versus Ohio, the first of those cases in 138 Fed 2nd 820, and the second in 70 Fed 2nd 535 — those four circuits have all followed the Rives-Powers line of cases. And from henceforth 19 in this argument I will refer to the previous decisions as Rives- Powers, which includes Neal against Delaware, Smith Versus Mississippi, Murray versus Louisiana, Bush versus Kentucky, and Williams versus,Mississippi. In addition, Your Honors, ever since the Kentucky versus Powers case the district courts in twelve states have universally and without exception followed the Powers ruling. Virtually all the states of the South, including New York, Michigan — these are outside of the South, I should say — New York, Michigan, Pennsylvania, California and New Jersey have universally refused to entertain removal petitions, or have promptly remanded them when a petition for remand was filed, where a discriminatory state statute was not alleged in the petition for removal. Now, this is the first case which departs from this long line of Federal cases. The Fifth Circuit Court in the Rachel case, by a three-panel court, which was split three ways — - there were three opinions written, one opinion for the court written by Chief Judge Covel, one opinion by District Judge White, who was sitting by designation — District Judge White first agreed with Mr. McPherson5s argument that the appeals were not timely filed, and said that Rule 3782 does apply, and the appeal should have been dismissed, and he adhered to that on rehearing. Circuit Court Judge Griffin Bell agreed with the majority of the court that the appeal was timely filed, and the 2C case should be remanded to the District Court for a hearing’. But he differed sharply with what should be done at the hearing. The First Circuit majority opinion directed the District Court to have a hearing and to dismiss the prosecutions if one single criteria were found, and that is that the respondents were removed from the places of public accommodation for racial reasons alone, basing it, of course, on this Court's holding in Hamm versus the City of Rock Hill. Circuit Judge Bell sharply disagreed. He said that this constituted in his opinion a breach of the principles of federalism as he knew it, and such casual treatment of the Georgia courts presented a problem of jeopardy of the relationships be tween steite and Federal courts. Judge Bell said that if the cases were remanded to the district courts that the respondent should be required to prove that they cannot receive a fair trial in the courts of the State of Georgia. Nov/, the opinion of the Fifth Circuit did not say a word about that. They just said, take the case back, and if you find that race was involved in the removal, dismiss the prosecu tion. That gives the court no chance, the District Court no chance to determine whether or not the facts of each particular case — * and there are 103 cases pending in the U. S. District Court for the Northern District of Georgia alone involving some twenty demonstrations in places all over Atlanta, sit-in 21 demonstrations. This court in Hamm versus Rock Hill,, of course, held that a person cannot be punished or prosecuted for peaceable, nonforcible exercise of the rights granted him by the Civil Rights Act of 1964 with respect to public accommodations. That does not include all conduct which might take place in those places. Another thing which we particularly want to call to this Court’s attention is the fact that the Supreme Court of Georgia has followed the Hamm versus Rock Hill decision of this honorable Court in the unanimous decision by the Georgia Supreme Court in Bolton versus the State of Georgia. The Georgia Supreme Court discussed the decision of this court in Hamm versus .Rock Hill, and voided a series of trespass convictions which arose for a sit-in or demonstrations in Athens, Georgia restaurant. Judge Bell, the dissenting judge of the Fifth Circuit Panel, said that the Georgia court should have a chance to pass upon these cases in the light of the decision in the Bolton case, and the fact that they had recognized and were following the decisions of this Court. I might add parenthetically, Your Honors, that up until three years ago I was Assistant U. S. Attorney in the Northern District of Georgia, in fact, I was First Assistant for several years, and I have been on both sides of this removal question. I on occasion had to remove cases from state to Federal Court under Section 1442 where Federal officers were charged for offenses committed in the performance or undercover of their office 22 And it seems to me that the decision of the Fifth Circuit Court of Appeals is a radical departure from all of the decisions of this honorable Court on the question of removal. And I am talking about removal, and not whether the defendants or the respondents would be convicted if they were tried in the state court, but simply on the basic question of whether or not a person can allege in a pure conclusion as they did in the Rachel petition. If the Court will — and I am certain it will -;« read the Rachel petition, you will see that it is nothing but conclu sions. They aliens only the fact that 20 people were arrested in this place, this place, and this place. They said they were arrested while attempting to exercise their right to seek food, comfort and entertainment at these public restaurants. Now, at the time this petition was filed the Civil Rights Act of 1964 had not been enacted into law. Then they allege in one sentence that the "State of Georgia, by statute, custom, usage and practice, supports and maintains a policy of racial discrimination." And then they allege that they are denied their rights, and cannot enforce their rights in the courts of the State of Georgia before any action is taken against any of these persons, before trial. They do not allege a single discriminatory act by a judge, they do not allege any oppressive act by any prosecuting attorney, they simply say. because we were arrested we conclude that Georgia pra.ctices such a policy of racial discrimination. They do not 23 even allege that the statute, the trespass statute: under which they are being prosecuted, is either unconstitutional or is being unconstitutionally applied as to them. District Judge Eoyd Sloan, who has recently retired from the bench, and who has been both a state and Federal court judge for about forty years promptly remanded it the next day after it "was filed, remanded all the cases to the state. And relying upon all these decisions of the appellate courts ar.d this honorable Court, they ruled that it did not set out grounds for removal. Now, the respondent in this case — I believe Mr. Amsterdam wrote the brief, I am so informed — incidentally, it was a very excellent brief, he has obviously spent years studying this situation — it goes back into history, congressional history, and so forth. But Mr. Amsterdamf if he wrote the brief — and I understand chett he did -- claims that this Court can uphold the Fifth Circuit ruling in the Rachel case without disturbing the Rives-Pov;ers line of decisions. And he says that is so for this reason. He says that the Rives-Powers line of cases are a procedural matter, that they protect a right under the 14th Amendment against a procedural matter, that is, the right to have members of your own race; impaneled on a traverse jury which is to try you. And in the Rachel case the right the petitioners are seeking from the respondent, are seeking to reserve by removing to Federal court, 24 is a right against prosecution. And he said that that is a substan tive right, whereas the Rives-Povers line of cases are a procedural right only and therefore there is a distinction, that this court can distinguish the Rives-Powers line of authority from this case. But I wish to call the Court1s attention to the fact that that is not what the court said, what this honorable Court said in 1880 in Strauder versus West Virginia, the first of the cases. At page 305 the Court asked this rhetorical question — and this was a unanimous decision of this Court — "Is not pro tection against race or color prejudice in the impaneling of a jury a right, a legal right under the Constitutional Amendment?" And then they answered this — that was the 14th Amendment of course — they answered it by saying that the statutes of West Virginia, discriminating as they do in the selection of jurors, amount to a denial of the equal protection of the law to a colored man when he is put on trial for an alleged offense against the state. And I submit that that is a substantive right. I submit that respondents are hair-splitting when they say the difference between removing a case to the Federal court because you can't have a person of your own color on the jury which tries you, and removing a case because you cannot be prosecuted if you are within the holding of Hamm versus Rock Hill -- they are both substantive riahts. Either one is procedural. One is procedural in the fact that prosecution is going forward. In the Rachel prosecution was going forward, and it was a question of state procedure there. Again, Mr. Amsterdam, or the respondents, says on page 95 of their brief — and this is the essence of the case as I see it ■— they say that defendant's prosecuted for the exercise of the right to equal public accommodations granted by the Civil Rights Act of 1954 may remove the prosecution to a Federal District Court whether the statute under which they are charged violates these rights on its face or as applied". In other words, the respondents are saying that they have an absolute right to remove the case regardless of whether the statute is being constitutionally applied, or is constitutional on its face. In fact, in the brief for respondents they argue that persons prosecuted in the exercise of the rights granted under the Civil Rights Act of 1964 are insulated from the prosecutive process. And I don’t believe that Mr. Amsterdam will quarrel with those words. He uses the term "insulatior. " several times, that they simply cannot be prosecuted. And I most respectfully submit to the court that if the Court should adopt respondent’s theory in this respect it would create ? virtual no man’s laiid in law enforcement in cases arising or possibly arising in the future out of this Act. Mr. Amsterdam apparently contends for the respondent that if a person is arrested in a place of public accommodations, that before he gets to the jail 26 house his lawyers can file a removal petition and he will be brought into Federal court, because he says that the Civil Rights Act of 1964, taken in conjunction with Hamm versus Rock Hill, insulates him against prosecution at all. And I respectfully submit to the Court that that would leave the states and the Federal law enforcement officials in a quandry as to how to proceed. If I might pose a hypothetical question, a hypothetical situation, suppose that a number of demonstrators, seeking to exercise their right to eat in a restaurant, a segregated restau rant — and incidentally, there are very few of those in the South anymore, Atlanta is completely integrated, as integrated as Washington, D. C. but suppose that they went in and some persons on the inside who did not agree with them started an argu ment, and suppose that both sides started fighting and rioting on the inside, and suppose that the demonstrators themselves were fighting, who would move into control that if this court says that the demonstrators are insulated from prosecution, from state prosecution? Certainly the Federal could not move in, because Federal law enforcement officers cannot move in unless they are authorized by specific statute to give criminal jurisdic tion, as the FBI and Internal Revenue are. The state officials certainly would be loathe to move in, because they would have the idea that they are making a case to be carried to the Federal Court. I am most anxious to submit to the court that this a 27 14 matter of grave importance to the whole country at large. I would venture to say that thousands of cases of state court prosecution will rest on what this Court says, 103 in Georgia alone. JUSTICE HARLAN; Do you know what the total figure in Georgia is? MR. SPARKS; No, I do not know what the total figure is. But I know that there are a number of district courts that are reserving rulings — I know that there are a number pending in Greenwood versus Peacock, which is following me in the argument. JUSTICE WHITE: Do you think your case is really like Peacock? MR. SPARKS: Your Honor, Mississippi and Georgia ~~ JUSTICE WHITE: Isn’t all that is involved in your case a question of the way the case was decided anyway, whether or not the prosecution for conduct is expressly permitted by Federal law is to be removed? MR. SPARKS: Yes, sir, that is the difference between Peacock and Rachel. JUSTICE WHITE: And the law was aimed at giving equal rights in public accommodations? That is the Federal law that is involved here? MR. SPARKS: Yes, that is the Federal law which is involved. The difference between Rachel and Peacock — and I am not trying to undermine the sister state of Mississippi, because 28 they have helped me, and I have helped them in briefing on this case -— but Rachel stands on a different footing from Peacock in these respects, answering Justice White's question. In the Rachel case the petition is grossly inadequate for removal. The petition in Peacock, as I read the opinion of the Fifth Circuit, alleges that the Mississippi — JUSTICE WHITE; Let's get back, though, to your statement that on the outcome of this case depends hundreds of other cases in the Federal Court. Kow many states are going to prosecute for entering a restaurant and securing service? MR. SPARKS: Wot very many. JUSTICE WHITE: Do you mean that there are hundreds of cases like this around the country? MR. SPARKS: Wot very many, Your Honor, in the larger cities such as Atlanta and Bir*ninc?har, I assume, and places like that. But throughout the South there are many smaller places in which prosecution might be commenced. JUSTICE WHITE; But, counsel, tell me, why would a prosecution in a state court still be pending if it relates to entering a restaurant and asking for service, conduct which is covered by the Federal law, a case which under Hamm versus Lupper should not get off the ground? Why are those cases still pending? Are there any? MR. SPARKS: Yes, some are pending. I think they are pending in the district courts, they have been removed to the district court 2 9 Your Honor, some of them undoubted3.y will be dismissed, whether they go back to the state court or whether they stay in the Federal court. Some, however, go beyond the holding in Hamm and Lupper. Some involve violence on the part of the demonstrators acts of vandalism in restaurants, which I do not believe this Court insulated in Hamm versus Lupper. JUSTICE WHITEs No. So there is really an argument over the scope of the privilege. MR. SPARKS: Yes, there is an argument over the scope. And that is one of the points that we specifically make in our brief, in the event we don't prevail at all, that the district court at least should be allowed to determine whether or not the cases fall within Hamm and Lupper, if so, they are protected, it is protected conduct. But if they are outside the peaceable, nonviolence scope of Hamm and Lupper, then they should be remanded to the state court. And that is what Circuit Court Judge Bell said. JUSTICE WHITE: Yes, they should be. But do you think the trial about whether or not the Federal privilege has been exceeded, the actual trial of that controversy should take place in the state court? MR. SPARKS: Yes, I feel that — JUSTICE WHITE: And if a motion to remand just simply claims that the Federal privilege has been exceeded, there should be a remand to the state court to have the trial? MR. SPARKS: Yes, sir, I think so, because otherwise 30 17 you will have your Federal district courts trying municipal court cases, disorderly conduct, and things like that. The Federal district courts are flooded with them now. I am just speaking -— expressing an opinion, but I don't think the Federal district courts will want those cases, because uniformly they remand them when the state asks for them to be remanded. Of course, I know that the district courts will entertain them if they are directed to, or if this court dec des that they should. But this contention of the appellant's virtually amounts to creating an original trial jurisdiction in the Federal court. It is like asking this court by judicial decree to decree a new type of Federal jurisdiction, the Federal District Courts will entertain all cases arising under the Civil Rights Act, and hence by state prosecution. JUSTICE CLARK: Those that wanted to raise the Hamm and Lupper issue, they filed a motion, I suppose, to dismiss? MR. SPARKS: I didn't hear the first part of your question, Your Honor. JUSTICE CLARK: I said, assuming they wished to raise the Hamm and Lupper defense in the state of Georgia, they filed a motion to dismiss on the ground of Hamm and Lupper? MR. SPARKS: Yes. In Georgia it is called a plea in abatement. JUSTICE CLARK: You would have a hearing on that, and if the state does not prosecute any evidence of violence, then 31 you say ~ MR. SPARKS: X would say that the state court would certainly dismiss under both the state and Georgia — the Georgia Supreme Court —- JUSTICE CLARK: Then you would not have a trial? MR. SPARKS: You would not have a trial., it would be merely a hearing. JUSTICE CLARK: You. would have a hearing? MR. SPARKS: If they went beyond the scope of Hamm versus Lupper, then there would be a jury trial, with questions as to whether they violated, or trial before the court without a jury as to what they violated. JUSTICE CLARK; If the court overruled a motion, I suppose you would have to have a trial. MR. SPARKS: Yes, you would have a trial there. My light has flashed. I want to call the attention of the Court to one other thing, if I might take just one minute, and that is that the construction that is sought by this Court — THE CHIEF JUSTICE: That vzaan’t your closing. That was probably some notification you gave. MR. SPARKS: Yes, sir. I have not figured out these lights yet. THE CHIEF JUSTICE: The white one comes on five minutes before your time is up 32 MR. SPARKS: I saw the red one flash just then and I thought ray time was up. I just have one other thing to say, Your Honors. \ The action which the respondents are asking this court to take today is ore that they tried to get enacted into lav; in 1964 when the IS64 Civil RightsAct was passed. House Resolu tion H.R. 7702 was introduced by Mr. Kastenmeier, and it sought to amend Section 1443 using these words: "The right of removal under this section shall be freely sustained, and this section shall be construed to apply to any state action, executive, legislative or administrative, or otherwise having the effect of denial or abridgement of equal rights.1 And Congress did not so amend the statute. And that is what in effect the respondents are asking this court to do judicially, when Congress did not pass the Act in that form. JUSTICE CLARK: Is that reference in your brief? MR. SPARKS: No, I did not know about it. It is House Resolution 7702. My colleague from Mississippi told me about it yesterday. JUSTICE CLARK: What colleague is this? MR. SPARKS: It is in the Peacock reply brief. JUSTICE FORTASs Mr* Sparks, may I ask your reaction to this. It seems to me possible that we are dealing with an issue here that has several layers to it. First, as I understand it, the district court here, on the basis of perhaps some wrong 33 decisions, just held that the 1443 was not available because there was no state statute or ordinance or constitutional provision here. So it may be that we have that issue before us, 1443, available only where a state statute, et cetera, is controlling or seems to control a state action. Right? MR. SP21RKSs Yes. JUSTICE FORTAS: And then the second action may be what standards should cover the district court in determining whether to remand the case to the state court. The district court here did not reach that issue, did it? MR. SPARKSs No, sir. The district court proceeded on the ground that if the removal petition itself does not set out the ground,, that it should be remanded. And that has been the practice in many of the — well, in practically all of the Federal courts. It has not been the practice of the courts, the district courts to hold hearings, they read the removal peti~ tion like a pleading. JUSTICE FORTASs I want to take this theoretically with you, if I may. Let's assume that the peittion did set out, did make proper allegations, whatever they may be. The fact of the matter is here is that the district court did not reach the question of what allegations have to be made to make out a case for remand before ruling, is that right? MR. SPARKSs Yes, sir. The district court just says that the respondents have not shown — have not alleged that any 34 21 statute was unconstitutional , and they have not pointed to any statute that in any way -- JUSTICE FORTAS: He did not go beyond that? MR. SPARKS: He did not go beyond that. JUSTICE FORTAS: If we should disagree, if we should hold that there can be factors other than the provision of a state statute or constitutional provision which would provide an adequate basis for removal under the 1443, then I assume there would arise the question as to what are those other circumstances that would justify removal, correct? MR. SPARKS: Yes, sir, if the court should hold that, I think Your Honor is right. JUSTICE FORTASs And the district court has not passed on that? MR. SPARKS: Mo, sir, the district court, has not passed on that. And under the present ruling of the Fifth Circuit it can't pass on anything except whether or not race was involved in the removal of the persons from public accommodations. I respectfully submit to the court that guidance is badly needed, and I am certain the Court will give guidance in this field. But the state authorities don't knox* what to do, and the Federal district courts don't knoxv what to do. This is a relatively new problem, although age-old, I mean the present facet. Mow, we respectfully submit that Georgia can handle these cases fairly. Our Supreme Court has followed Hamm and 35 22 Lupper JUSTICE WHITE; Could I just make clear, does Georgia claim in this case that the conduct that is involved in this case is not protected by the public accommodations law? Is there any clciivn here that the Federal privilege is exceeded? MR. SPARKS; Your Honor, I can't answer that categori cally,, because as I say, this covers about 20 cases, and I am not familiar with the evidence in all of the cases. But I can say this, in some instances I think that the conduct would be covered by Hamm versus Lupper, I mean it would be insulated. Some demonstrations were peaceful. Others involved pushing, shoving, kicking by the demonstrators. They tried to force their way into one restaurant, they formed a flying wedge and rushed the door, kicked the proprietor on the leg, and so forth. That type I do not believe would be covered by Hamm versus Lupper. JUSTICE WHITE: Why do you suppose that to the extent that there are some of these cases where there may be no claim that the Federal privilege was exceeded, why are those cases even still filed in the state courts? MR. SPARKS; Well, Your Honor, there were 101 of them — these? JUSTICE WHITE; I suppose you could still dismiss MR. SPARKS: There were 101 of them indicted, and only two got tried. And then the whole batch was removed over to the 36 23 Federal court. And we have been fighting the question of removal- ability ever since. JUSTICE WHITE; I know, but only 50 of them were covered — they were removed before Hamm and Lupper ever came down. MR. SPARKS; Yes, that is true. JUSTICE WHITE; And after Hamm and Lupper, there are 350 of them that didn't deserve to be there. I would have thought that they would have been dismissed long ago. MR. SPARKS; Your Honor, the district covirt has net had the jurisdiction of these cases so that they could be dismissed in that time. They have been on appeal ever since. They were cn appeal when Hamm and Lupper came down. JUSTICE BLACK; You mean the Georgia court? MR. SPARKS; Ho, I mean the Federal District Court has not had jurisdiction of these cases. They have been on appeal ever since . JUSTICE BLACK; In Georgia? MR. SPARKS; Wo, sir, going up through the Fifth Circuit Court of Appeals. JUSTICE BLACK; Neither the local district court, the Federal court, or the local state court had them before them at that time? MR. SPARKS: No, they have not had them before them, because they have been on appeal all this time the remittance or the mandate has never gone back to the Circuit pending the appeal 37 24 on certiorari before this court, and no one has had jurisdiction over them since that time except this court, in a manner of speak ing. JUSTICE BRENNAN: Is that a barrier, so to speak, to the dismissal of those cases that would be governing? MR. SPARKSs I don't think you can dismiss a case that is on appeal until the mandate is returned. The cases are not — the district court has no power to enter an order. JUSTICE BRENNAN: I am asking, because we constantly get confessions of error here to dispose of cases, based on confessions of error, and independent examination of records, and so forth, could that be done in some of these cases? Even in this Court could that be done at this juncture? MR. SPARKS: I don’t know, Your Honor. We are saying that our position is that we want to get them back in state courts and let us dispose of them in the state court. We feel that they were improperly removed. And when we get them back we will dispose of them justly. Those that need to be dismissed we vzill dismiss in the State. Court, and those which may need to be tried we will try them in the state court . What we are saying is that — this is purely a question of jurisdiction that; we are arguing right now, and not the merits of the case. And I could not tell you what the merits of any particular case was. JUSTICE WHITE: I know, but you are suggesting that the Georgia courts will and have been observing them, and to the extent that they will be dismissed they will be dismissed? 38 MR. SPARKS: Yes, and to the extent that they will be prosecuted they will still be prosecuted. JUSTICE WHITES But the fact is that all of these cases are still in the courts? MR. SPARKSs Yes, sir, they are all in the courts. But none of them are in the state courts. They are all in the district courts for the Northern District of Georgia. And as I say, it has been on appeal continuously for about 18 months. And even the district court — the district court does have jurisdiction of two which were just removed last week. My time is up. And I appreciate the courtesy of the court. THE CHIEF JUSTICE: Mr. Amsterdam. ARGUMENT ON BEHALF OF THE RESPONDENTS BY MR. AMSTERDAM MR. AMSTERDAMs Mr. Chief Justice, may it please the Court. Of the several grounds which Georgia urges for reversal here, one, the construction of a Civil Rights Removal Statute, is of overwhelming importance. Mr. Sparks has just said, eloquently, I think, that state prosecutors in the Federal district courts need guidance in this matter. And the question is involved not only in this case, but in the Peacock case xvhich follows, and in others pending here and many pending in the lower courts. I perhaps should say, in answer to Mr. Justice Harlan's 39 26 question of Mr. McPherson yesterday, that the issues in this case, Rachel, are not exactly the same as those in Peacock, and that it might well be that Peacock might be decided in favor of a remand to the state court, although jurisdiction in the Rachel case vrould be sustained. I think it would be very difficult to decide the cases the other way around. But the issues are not exactly the same. Because of the importance of the issues, because Congress in the Civil Rights Act of 1964 deemed their resolution by this court essential to the effective protection of Federal Rights — Civil Rights by Federal Courts, I would like to argue that question, the question of construction of Section 1443 of the Judicial Code first, notwithstanding the slight wrench in the strict logic which is involved in putting over until later the question raised by Mr. McPherson as to whether this court has jurisdiction to hear substantive contention on the merits. Now, on the issue of statutory construction, the text which we must construe is set out at pages 2 and 3 of our brief. And I only refer to it at this time, not to argue the case under the language of the statute, but merely to outline the thought that it might be helpful to the court, the various possible constructions of the statutes, and the contentions made not only by the court here, but also by the lower courts which passed on the question. 40 I do this because, as I shall say this a minute, I don't think that the question in this case is one that can be decided as a matter of language. I do not think that syllogistic tvork with words, I do not think that punctuation, I do not think that grammar is the answer to this case. I think its-answer is in history, and I think its answer is in the practical functioning of civil rights jurisdiction in this country today, questions that I shall come to very shortly in this argument. Now, looking the language of the statute for the moment, just for the purpose of outlining the possible construc tions of it, I turn first to Section 1443(2), because although the Fifth Circuit below decided this case on Section 1443(1), as I shall make clear, I hope, a little later in the argument, 1 myself would prefer to see the Court's reaffirmance of the decision below, which it can do, on Section 1443(2), and also because Mr. Sparks has argued implications for this case from the Rives-Powers line of decisions. And those decisions are constructions only of Section 1443(1), leaving the court entirely free, I believe, to construe for the first time in this case, and the Peacock case following, Section 1443(2). Now, 1443(2) allows removal where a prosecution is for any act under color of authority derived from any lav; providing for equal rights. There is also a refusing clause in Section 1443(2), which we do not rely on in this court, which I believe the petitioners in Peacock, the removal petitioners 41 in Peacock do rely on. We construe the phrase "any act under color of authority derived from a law providing for equal rights" to mean any act which is authorized by a Federal law protecting civil rights which is permitted by a Federal law providing for equal rights, which is protected by a Federal lav; providing for equal rights. JUSTICE HARLAN; You mean equal rights protected by the Constitution, do you not, and not by statute? MR. AMSTERDAM; We do not need to reach that question in this case, because the rights which we claim in this case are protected expressly by sections 201 and 203 of the Civil Rights Act of 1964 , which Georgia has not contended is not a law providing for civil rights, but I think no lower Federal court has begun to-suggest is not, and vhich I think clearly is. So v.fe need not reach the constitutional question in this case. JUSTICE FORTAS; Wasn't this petition filed by the court before the Civil Rights Act was passed? MR. AMSTERDAM; It was filed and the case remanded before the Civil Rights Act was passed. I don’t think that af fects — JUSTICE FORTAS; You don’t think that makes any difference? MR. AMSTERDAM; No, not at all. Hamm and Lupper have resolved the question, as I take it, as to whether or not the 42 substantive protection of the Act applies in such case. The ques tion of whether or not Federal jurisdiction is proper in such cases is whether where a statute governing the jurisdiction of court should apply to pending cases. Now, traditionally a procedural, modal statute is applied to pending cases. I see no reason why the substantive provisions of the Civil Rights Act of 1964 do not begin to operate as of July 2, 1964. But as to that, I see no reason, why, if it could be removed under the state statute of 1866, we should not have the benefit of that. The question, I think, is only whether or not we should have alleged with greater particularity than we did the right which we now seek to assert. JUSTICE STEWART: How could you before the statute was passed? MR. AMSTERDAM: That is exactly our position. JUSTICE STEWART: That is Justice Fortas5 question, too. MR, AMSTERDAM; I think that is right. JUSTICE STEWART: At the time you filed this petition to remove there was absent any of the justification which you now assert for it, isn't that correct? MR. AMSTERDAM: Absolutely, Your Honor. Of course, at that point the question was before this court, which the court has never resolved, and as to the constitutional protection of the conduct which we claim is now protected under the Civil 43 30 Rights Act. And it was under the Constitution that we originally sought to remove , But unless this Court should find that because our pleadings are insufficient,, or for some other reason, Ilamm versus Lupper does not reach and protect this case, there need be reached no constitutional question in this case, for any question as to whether Section 1443 and its phrase, "law providing for equal rights", means anything under the Civil Rights Act of 1964. Wow, the State of Georgia has taken the position that an Act under color of authority means an act under color of office, and that it is limited in effect to Federal Officers and persons acting under them. And this is a position which has since been sustained bv the Court of Appeals for the Fifth Circuit in the Peacock, although within Rogers and Tuscaloosa and other cases involved in the Fifth Circuit the question is still open there. The third possible construction of Sectio 1443(2) which should command the consideration of the court is by Judge Friendly the Galamison case in the Second Circuit. Judge Friendly, without resolving the question whether the phrase "color of authority" meant color of office, and whether the statute thus reached anybody other than the officers and persons acting under them, said that authority derived from the Federal law, only a Federal law directed a specific act to be done, an act was au thorised by under color of authority of law if there was a direction given by that lav; to do the Act. We think that does 44 not amount to very much other than the construction that the statute is limited to officers and persons acting under them, because no civil rights law that we know of directs anybody to do anything, other than Federal officers and persons acting under them. So I think that the alternatives meaningful ir.construc- tion are 1443(2) are simple, whether or not under color of authority means protected by Federal law, and thus reaches demon strators, sit-ins and persons who are protected by federal law which precludes their prosecution, or whether it is limited to Federal officers. And again for the moment without arguing, but just simply pointing out what the alternatives mean at this point, I would point out that that second construction puts 1443(2) off the books, because Section 1443(2)(a) of the Judicial Code today allows removal in all Federal officer cases, civil rights or otherwise, including persons acting under Federal . Nov;, passing 1443(1) merely for the purpose of outlining what the issues are, and what the possible constructions are, 1443 (1), unlike 1443(2), asks the question --- JUSTICE WHITE: Mr. Amsterdam, that other removal statute didn't so provide until 1948, did it? MR. AMSTERDAM: That was for the first time broadened to include all Federal officers in the — * JUSTICE WHITE: And before that it was Revenue officers? MR. AMSTERDAM: Revenue Officers only. The first section of 1443 asks questions that the 45 second section doss not. It allows for removal only in the case of prosecutions or civil cases against a person who is denied or cannot enforce in the state courts an equal civil right protected by law, a right under a law providing for equal civil rights. Now, the various possible constructions of 1443(1), I think, are broader than those of 1443(2). First of all, there is a construction of the Rives- Powers line of cases argued by Mr. Sparks this morning, that the denial spoken of by Section 1443(1) is a denial which arises in the face of a state statute or construction unconstitutional on its face, that where that exists it is both a necessary and sufficient condition for removal that no question can be asked whether the state court can uphold the statute as to con struction or can strike it down as unconstitutional, and that the one hallmark of removal ability is an unconstituional state statute. A second possible interpretation is that when a removal petition is filed, as it new must be filed in advance of the trial, the Federal Courts shall try, case by case, issue by issue, the question whether the removal petition is being denied, or has been denied, and cannot enforce in state courts the right under the Constitution and laws. For the moment I am treating the words "denied" and "cannot enforce" as though they were tautological, and I will come to a moment to the government’s position in Peacock that 46 they were not, a position which we don’t have to reach in our case, because we think that the result is the same, however one uses those two words. But' a possibility in construing section 1443(1) would be to say that the Federal District Court, in honoring a petition, would try whether or not a petitioner who was charged with sitting in, or seeking service in a restaurant covered by the public accommodations title, could have his right to the defense of the Civil Rights Act of 1954 fairly tried in the state courts. And as I understand it, that is Mr. Sparks alternative contention, that we look to the Georgia Supreme Court, although why only to that court I am not sure, why not to Judge Pye's court in which this case would be tried in the first instance? However, v/e look to the Georgia courts and we tried their fidelity to'the Constitution, will th»y or will they not obey the Consti tution, and will they or will they not follow their court's decision. A Third possible construction — JUSTICE HARLAN: In trying in the state courts — MR. AMSTERDAM; Under this construction of the statute; you would have to try the possibility that that state court would come to an unconstitutional result. We are not asking this Court to do that. I am simply outlining the possible construction. I have not come to the one we are urging. The third possible construction splits the words •47 34 "denied” and "cannot enforce" into two cases. And it says that section 3.443 (.I) has the right to remove, a right to remove where one is denied a Federal civil right, and a right to remove where one cannot enforce a civil right. And it says that wherever the conduct for which the prosecution is brought is itself pro tected by a Federal substance guarantee which allows that conduct, that the very fact of the arrest and the commencement of the prosecution is a denial of the right, and that without reaching any question it cannot enforce the prosecution for removal. This, I understand to be the government’s position in the Peacock case. JUSTICE STEWART; That does involve handling a little punctuation, at least to make the argument there, doesn’t it? MR. AMSTERDAM; Judge Sobeloff in the dissent in the Danville case did, I think, graphically illustrate by punctuation exactly how this would work. I myself don't ask the court to take that position, and I don’t because in my judgment the only justification for a removal jurisdiction at all is some feeling that the state courts cannot, will not, do not enforce certain kinds of Federal rights. And therefore, I hesitate to focus attention on the arrest process. I am much more concerned with process in the trial court. I think I shall explain that why I think that notwith standing that our cases within the denial cannot enforce language. Now, the fourth possible construction is that which we 43 urge in this case, that because of the inalienable tendency ■— and in speaking of this I da not speak of the Southern courts alone, I do not speak of the courts in Fulton County alone, I speak of the natural effect of a pending criminal prosecution on the kind of conduct which the prosecution is brought to punish, because of the general deterrent effect of a prosecution on con duct, we claim that the very dependency of the prosecution in a state court against a person for a Federally protected right is in itself a denial of that right, and a denial of the ability to enforce that right. Or to put it exactly in Mr. Sparks' claim, we do claim in this case that with respect to certain Federal rights, those few precious rights specified, that Congress has either hedged about as it did in the Civil Rights Act of 1964, with a special guarantee that no one should be coerced, intimidated, harassed cr punished for seeking to assert this right, and with some other rights that need not be reached in this case, the First Amendment rights involved in Peacock, that the very precious nature of those rights, and the supressing effect on them of prosecution, which this court has recognised in many cases over the years, is justification for a jurisdiction which doesn't insulate from prosecution persons who engage in that conduct. Now, notice, when I say insulation from prosecution all is all it means is that the question of whether or not the prosecution shall gone on is to be tried in the Federal court in the first instance, and not in the state court, ind in reaching 49 the questions of construction which I have now laid out and explaining why I reach that result, I want to pass, if I may, from language to history -- JUSTICE FORTAS: Eefore you do that, why wouldn't the pendency of the case in the Federal court have the same effect as it is pendency in the state court? Your proposition must be that that is because the affected community didn't believe that they would get a fair trial. MR. AMSTERDAM: The pendency of the case in the state court does have some effect. Let me answer that question in several different ways. First of all, the length of pendency is absolutely critical. If we compare, for example, the Mississippi Freedom Rider cases, the Freedom Rides were in May of 1961, and the Mississippi Supreme Court in a case that was clearly controlled by this court's prior decision affirmed in 1965 those convictions. JUSTICE FORTAS: Again you are assuming — again you are making a comparative evaluation of the Federal and the state courts. MR. AMSTERDAM: That is right. JUSTICE FORTAS: And it comes back, it seems to me, to the same proposition. MR. AMSTERDAMs Mr. Justice Fortas, when you ask whether or not the pendency of the case in the Federal court was not re pressive in the same way as it was in the state court, my answer 50 is that as a matter of degree it is critically different- it is differently repressive, it is less repressive, because the probability that a Federal District Judge would have allowed — JUSTICE FORTAS; I understand it is less repressive under the practical circumstance, but what I am trying to point out is that the reason that it is less repressive involves a judgement as to the fairness and the expedition or the lack thereof in the state court proceedings, so chat your proposition, no matter how you cut it, and no matter ho™ you phrase it, may come back to one of a prediction as to how the state courts will act. And that, of course — MR, AMSTERDAM: The whole argument does indeed depend on that. Will you let me distinguish between two ways in vjhich that issue is critical. One is, if case by case the Federal court had to decide the probabilities in the state court, the other is the question whether Congress has not made the generic judgment about state courts in these cases which has ordered a Federal court, because of the increased probability of repression in the state, which is generic, to take these cases without inquiring case by case, instance by instance, whether or not the state courts will probably enforce the Federal rights. We do completely agree. JUSTICE WHITE: But, Mr. Amsterdam, this also assumes that there has been a prosecution for a Federally protected right. 51 Where do you suggest that X — 1 1 suppose you suggest that if somebody just alleges that the Federal right is being prosecuted in the state court,, that that question must be tried out,, that initial question must be tried out in the Federal court? MR. AMSTERDAM; We are perfectly agreeable to that. We believe that a Federal District Court, if a petition for a removal is contested on the facts, must try the issues alleged in the petition and denied in the answer, if a petition were filed under 1442(a) by a Federal Officer asserting "1 am a Federal officer", and the answer was, "You are not a Federal officer, you are a lav; professor", I would expect that the Federal District Court would try that issue. JUSTICE WHITE; Or if the petition for removal is filed, and then the case is removed, and the motion for remand says, ,!Yes, hut these people were being violated in the restaurant." MR. AMSTERDAM: Oh, there is no question that if the OUSTICE WHITE: Then what happens in the Federal court? MR. AMSTERDAM: In this case? Then what happens in the Federal court? A hearing has to be held on the specific question — JUSTICE WHITE: A jury trial? MR. AMSTERDAM; Wo, no jury trial. JUSTICE WHITE: MR. AMSTERDAM: Why not? The question is a jurisdictional one 52 JUSTICE WHITE: Why not? MR. AMSTERDAM: Because the question is whether or not the court shall accept jurisdiction over the case. JUSTICE WHITE: Yes, but aren't the facts really — one of the defenses is that — one of the defenses of the defendant is that "I am protected by a Federal statute here." MR. AMSTERDAM: Let me — JUSTICE WHITE: Do you think you agree with the govern ment on this position or not, I mean on what happens in the Federal court on the motion for remand, do you think you have the same position as the government? MR. AMSTERDAM: We differ from the government. We take a somewhat narrower view of the right of removal, and therefore, we end up with a somewhat different view on what happens in the Federal court. JUSTICE WHITE: But you would say that the judge alone could have that hearing and make those factual determinations ard local conclusions or, the motion for remand? MR. AMSTERDAM: Exactly. And let me explain why that is so. If this case were tried in the state court I believe that the state judge, not the jury, would have to decide the human operation. Justice Clark asked whether there would be — JUSTICE WHITE: But the jury would decide whether there was a violation. MR. AMSTERDAM: I believe if a motion to abate were 53 decided involving Barran and Lupper for the same reason as Jackson that a state judge is required to try a Federal Constitution, unless you have a confession that a state trial judge would be required to try without a jury the issue of whether or not the facts brought the case within Hamm and Lupper. 1 think that then a jury trial would have to be held on whether or not the state statute had been violated. And I point out that in the event that this case came to conviction in a stcite court, and was affirmed on appeal, that when a Federal habeas corpus petition was filed after a state trial a Federal district judge sitting without a jury would decide all over again, if the case had not been removed in advance of the trial, whether the peitioner’s conduct fell within the state statute and whether or not it fell within the protection of Hamm and Lupper. JUSTICE WHITE: Unless — MR. AMSTERDAM: Mr. Justice White, if I may, this issue seems to be critical in the entire construction of the removal statute. The question — - as Mr. Sparks put it, the scope of Hamm and Lupper is a question of existence of Hamm and Lupper, because — let me explain why we think Congress made: the judgment that those cases should be tried by a Federal judge, in a Federal court at the outset. If this case is not decided against removal, let me hypothenize for a moment that the petitioner in this case — the respondent in this court, the petitioner in this case, Thomas 54 Rachel comes bo me, and says to me, "I would like to sit in in one of the few remaining segregated restaurants in Atlanta, or the many remaining segregated restaurants outside of Atlanta, can I do it." What would I have to tell him? 7. would have to tell him, "Of course, 3 ou can do it. If the restaurant is covered by the Civil Rights Act of 1964 Congress has said in so many words, you have a right of equal access in the restaurant, and Congress has gone out of its v;ay to say that not only have you got that, but no person shall intimidate, threaten or coerce, or attempt to intimidate, threaten or coerce you in your right to exercise, and you shall not be punished or no person shall atter.pt to punish you." And I would be a pretty bad lawyer if I said this, because what I would tell him would be that if the restauranteur wanted to defy him service, he would not do it on the ground that the restaurant was not covered by the Civil Rights Act any more, he would do it precisely on the ground that there was some fcoistrousness, or he would deny it on the ground that Rachel when he came in was ill dressed, or that he was drunk, or that he was ogling the waitress, or any one of a host of other grounds which might give the restauranteur under the Georgia Statute a ri«ht to ®yclude him. Now, on that question of fact depends the effective enforcement of this court's Hamm and Lupper decisions, and the effective enforcement of the Civil Rights Act of 1964. And we 55 suppose that a Federal District court was deemed by Congress to be a better forum, a more appropriate forum for the trial of this Federal issue them a state judge or a state jury. If I had to tell Thomas Rachel, in my hypothetical case, what he could expect in the event that the restauranteur defied him service on the ground that he was boistrous or ogling the waitress, I would tell him that what would happen is that he would go to trial — this, Mr. Justice Fortas, comes back to the question of what in effect happened in a state court, but not a particular state court, state courts generally — I would tell him that the risk that he runs when he is arrested is that bail would be set for him, as it was for one of the removal petitioners in this case, $7,000 for a misdemeanor. Now, it may well be that we can challenge that, \je can bring other proceedings, habeas corpus i in a state court, go to the highest state court, go into a Federal District Court to challenge bail, perhaps. In the meantime you may have spent a night or two ni">’ts in jail. But we can eventually challenge it, but we have to go through severed courts to challenge it. And then what will happen to you? You will be brought to trial in a state court. And the Chief of police will be sitting right across from the prosecuting attorney and police officers will be wandering in and out of the courtroom. And how your witnesses will testify or how the ordinary Southern lawyer is going to try your case is going to be effectively influenced by the fact that the courtroom is right 56 across from the Chief of police, right across from the Mayor's office, and that the court — - JUSTICE PORTAS: You are not trying to make a generality with respect to defense lawyers are you? MR. AMSTERDAM: The general attitude with respect to defense lawyers — and of all lawyers, and rightfully — is grave deference to the court. And where the suspicions is that the court is hostile — JUSTICE FORTAS: What bothers me, Mr. Amsterdam, is that you say that Congress is in effect directed or established at the very lease a presumption that in all cases where a person is arrested in the course of Civil Rights activity, he should be tried by a Federal district court, is that what you said? MR. AMSTERDAM: It is more than a presumption, it is a conclusive presumption of law. JUSTICE FORTAS: And that is your position? MR. AMSTERDAM: That is it. JUSTICE FORTAS: And then to establish that, don't you have to tell us a little bit about 1443? That is the source of that, isn’t it? MR. AMSTERDAM: I intend to get just there. And when I spoke of history it was exactly in that sense that I meant that history it was illuminating and we think controlling in this case. I was merely pointing out why Congress should have made the judgment that we think it made. Nov/, to establish that it did make the judgment we have gone through the legislative history 57 of the statute we passed a hundred years ago this month which laid the foundation for removal of jurisdiction claimed in this case. I ought to say that in connection with the legislative history we do not claim any more than we do with respect to the language that there is anything in there specifically which compels this court to the result we contend for. In the sense of any explanation of the statute on the floor of Congress or in supposition of the cases that would arise under it, the judi-' ciary provisions of the Civil Rights Act of 1866 were relatively undiscussed. The structure of the original statute is to create original jurisdiction as well as removal jurisdiction. The only discussion of the provision at all was by Senator Trumbull, responsive to a criticism by President Johnson in his Veto, because the criticism was planted at only part of the injured, and the response was only part, and we find no illumina tion in the specific legislative history. But we find extra ordinary ellumination in a larger panorama of history here, because we think that if you go back and look at the history of use of the Federal judiciary to enforce Federal rights, which is what we are talking about in this particular instance, you find that the Reconstruction Period, the period in which this statute was enacted, was a watershed, that prior to the Reconstruction period that the Federal courts, albeit the Constitution gave it power to establish lower Federal courts, and lower Federal courts were very seldom used. It wasn’t a 58 general Federal questionof jurisdiction as we know it today, the great bulk of business which the Federal courts do today they were given in the five or six years following the Civil War. Now, the second thing that I think stands out as one looks back at the historical panorama is that the principal concern of the Reconstruction Congress, which bulked up the juris diction of the Federal courts and gave them the protective jurisdiction which they have tcday, was the protection of the civil rights which were gained by the war, secured and assured substantively by the 13th, 14th, and 15th Amendments, and by the Civil Rights Act. Every Civil Rights Act, every one, had jurisdictional provisions which gave the Federal courts jurisdic tion . Now, let's ta3ce a look for one moment at what that jurisdiction is. To start with, in cases without regard to amount, unlike general Federal courts of jurisdiction, the Federal courts have civil jurisdiction in all cases involving civil rights. They have it originally, they have it in equity, and they have it in law. They have the habeas corpus jurisdiction given by statute in 1867, whose clear purpose was to allow them to take from state custody persons in restraint by the state executive without state judicial process where their Federal rights were being violated. The federal courts should have very extensive Federal rights jurisdiction. Nov;, the question 59 arises, did not Congress — would not Congress have foreseen that the major threat, perhaps, to the civil rights justice secured by the War would not come in civil cases, would not come solely in cases in which the state executive was acting, but would very often come in civil prosecution by the state, in which the freedmen and unionists would be sigled out? We know Congress knew this, because the debates which we have set out in pages 45 to 6 6 of this brief, if they mean anything, show that Congress knew that the state courts were hostile, and the state actions were being used to harass unionists and Negroes in the states. We ask, if Congress knew about that, wouldn't Congress have done something about that? And we conclude that they did. We look in the first thing they did in Reconstruction, the pas sage of the Civil Rights Act of 1366. And that first thing they did allows removal of civil and criminal cases in three basic categories. The only one of them — the third is in issue here, but the other two we think are very illuminating — the first of all, Federal officers, enforcing civil rights laws, whatever else Section 1443(2) means, it certainly means, and every body agrees, that a Federal officer, a unionist, who is enforc ing civil right act could remove one. He would not have to show case by case chat the state courts were unfair, he would not have to shov; that the state statute was unconstitutional on its face, the very fact that he was a Federal officer involved in civil rights enforcement would allow him to remove it. 60 Secondly, and I think it is extremely important, although we don't rely cn it specifically in this case, a state officer who refused to do an act on the ground that it would be inconsis tent with civil rights law is permitted to remove, a state officer he is not a person protected by Federal law, he is permitted to remove his case to a Federal court simply because the issue of his authority, which he refused to exercise, involves Federal civil rights lav/. He does not have to show that the state courts are not fair, he does not have to show that they will not sustain the Federal Constitution, he does not have to show that there is a state statute that is unconstitutional on its face, all he has to show is that he is a state officer being prosecuted for an act, or a failure to act in this case, which he says would conflict v/ith Federal lav/. We ask,then, if these two classes of persons, Federal officers enforcing the law, and state officers who refuse to enforce it, or for that reason alone given a right to come into the Federal courts. Did not Congress mean, or would it not also have meant, to allow the very person protected by the amendment, and by the Federal Civil Rights Act, persons who v/ere denied their rights in a state court, to come into the Federal court on that ground alone? We believe that that is exactly what they meant by Section 1443(2). Nov/, let me very carefully distinguish two kinds of cases, because here is where we get into the Rives line as well. 61 46 We think that Congress was thinking about two situations. First is the situation in which a state charge is brought against someone for conduct in the exercise of a Federal civil right. Now, to take one of the civil rights of Section 1 of the Civil Rights Act of 1866, we will take the right to possess property. Suppose that a Negro got a grant in fee of a piece of property, and a white man came and tried to throw him off it, tried to evict him forcibly on the ground that he could not hold property, and that the white man was entitled to the property. Ordinary state lav; would allow defense by force of ones habitation against an aggressor. And we have no doubt that that right of self-defense was protected by Section 1 of the Civil Rights Actor 1366. We think that in cases like that Congress made the conclusive presumption of law, that because Federal civil rights were involved in this case, because the potential for harassment of dragging these cases through the state courts internally -- the problems I raise here -- a potentially hostile state judge,'who will influence what lawyers do by his very presence, who will influence the way witnesses testify, who has enormous discretion on questionsof bail, who has enormous discretion on questions of timing, and when the case comes before the courts, how long it shall be held up — these cases are cases if — in which we think Congress meant the case immediately to go into the District — Federal District Court. JUSTICE FORTAS: Mr. Amsterdam, let's take the same 62 case that you put. And let’s suppose that the Negro had invited the white man into his house,, just going along with these implausable assumptions as of that time. And let's assume that they had been having a quiet luncheon there, and then the Negro had pulled out a gun and killed the man for the purposes of robbing him. And then the state brought prosecution against him. Now, our problem under this statute, is what happens from that point on, that is to say, when you assure chat the — once you assume the characteristics of the conduct, you have solved a lot of problems. But our problem here is, how do you get to that kind of a judgment? Do you do it in state court or Federal court, and when? The answer may be in the fact that you make that assumption. But we are lawyers and judges, and we: have to confront the fact of how you make that. In every one of these cases, I assume, unless the states are going to dismiss them, the state will say that civil rights has no part in this, this was violence, or something of the sort. And on the other hand, the defendant in every one of these cases will say, I didn’t kick anybody, this was no violence involved, it was a violation of the civil rights. And as I see this effect — and perhaps I am wrong — but the critical and legal and judicial px-oblem is how, when, and where that threslihold decision is to be made, at least that is one of the problems. MR. AMSTERDAM: Under our construction of the statute it is to be made by a Federal judge after a removal 63 petition has been filed, and in the event that a remand motion challenging the factual allegations of the petition is filed. We completely agree — - and this I think is also the anser in part to why I earlier responded to Mr. Justice White as I did — that the factual question is critical. But 1 think Congress meant precisely because of the power of the state court to find the fact against a Federal petitioner, and because of the inconvenience of litigating those issues in the state court, and the threat tc Federal rights — if one who goes out to sit in a restaurant knows he is going to go to trial in a state court, we think that the how, when and where is in a Federal court on a motion to remand in advance of any trial. JUSTICE BRENNAN; Ev a judge without a jury? MR. AMSTERDAM: And by a judge without a jury. JUSTICE BRENNAN; And if the judge determines that indeed there was violence, I take it that what he then must do is remand to the state court? MR. AMSTERDAM: Remand to the state court for trial. JUSTICE BRENNAN: But this is not — JUSTICE WHITE: The alternative of that is that defense is that you just have the whole trial in the Federal court, and the Federal defense is presented to the jury along with the factual basis for the Federal defense presented to the jury. MR. AMSTERDAM: I understand this to be the government's position in Peacock. What the government says is that — and 64 verbally I think there is very good basis for this — - the govern ment seems to say, particularly under Subsection 2, chat the question of color of authority — JUSTICE WHITE: The kind of a case you have in Rachel, they are either talking specifically about the identification — MR. AMSTERDAM; I am sure that is right, where the case is within shooting distance of the constitutional — the whole case comes into the Federal courts and you try it there — constitutional defenses, Federal defenses and the state lav; question all at once. We don’t think that that is what Congress meant. New, we would be delighted to have that kind of an expansive reading of the statute. We didn't ask for it. JUSTICE WHITE: I just think they talk this way just about one specific kind of case, and that is your kind of a case. You are trying out the scope, the breadth of the Federal jurisdiction, because they think that there has been a denial automatically at the outset — that the judge would try out whether or not — for example, a prosecutor has applied the tres pass statutes because somebody is a Negro. MR . AMSTERDAM: Well, I think that the only objection that I have to characterising as narrow and limited to our case the government’s contention is that it would also apply beyond sit-ins to demonstration cases generally. As T understand the government, it takes the position 65 that. Judge Friendly assumed in Galamison, that if the conduct is colorably protected by Federal law, then trial is had on the merits in the Federal court with a jury. Wow, I understand the government's desire for that. It comes from two things, as I understand it. One, a feeling that efficiency is served if a single trial is had instead of two trials. JUSTICE BRENNANS You don't disagree with that? MR. AMSTERDAM; We don't disagree with that. But we do disagree with some of the factual assumptions that underly it. And we also think that there are countervailing considerations to efficiency, one of which is that under our construction of the statute we can honestly say that no case is taken out cf the state court, in no case is the state court deprived of the power to proceed except in cases that should not be there in the first place. That is the virtue, I think, of our construction of the removal statute. The government construction of the removal statute allows the Federal mechanism to come into operation even in cases which can proceed to judge. Ours is very limited. We think that the optimal balance to be struck between the use of the Federal courts to protect Federal rights and the necessity that state courts go on unimpeded in cases where Federal rights are not being denied simply calls for trying whether or not Federal protection does void the prosecution of the case. JUSTICE WHITE; You are saying that under your construe- 6S ticn you will never have a criminal trial in a Federal court? MR. AMSTERDAM: I would agree with that. JUSTICE WHITE: You will never have a guilty or not guilty verdict in a Federal court, it is always — the case will either be dismissed if it is found that the Federal right has been violated by the prosecution, or it will be remanded for trial in the state court? MR. AMSTERDAM: That is exactly so. And that brings me to what I think is the second consideration as it forms the government's point. Because certainly in terms of efficiency you can't quarrel with the efficiency of that. If one wants to talk about efficiency, you compare what happened in Selma, Alabama, for example, with the various other large demonstration episodes that have happened all over the country. Within three months after the Selma, Alabama demonstrations the three thousand prosecutions arising out of them were finished, terminated or ended. A Federal district judge on a motion to remand in a removal case found that all of those prosecutions were unfounded, that is to say, that the conduct on which they were based was protected by the Federal Constitution, and washed all of those cases out properly. Had it not been for that the cases would still be in a mill of trial and appeal, and we would have what we had in the Mississippi Freedom Rider cases, and other cases, of years for the vindication of rights. JUSTICE WHITE: So what it is really is, Federal 67 habeas corpus before the trial? MR. AMSTERDAM: It is exactly that. And there is nothing anoinolous about ic. Because we think that even if this case were tried in a state court, as I said earlier, that the issue of Federal defense as distinguished from the issue of guilt would have to be tried by the judge and not the jury. We do not think that Federal constitutional defenses even .in a state court, are jury issues. Nov/, the trial judge, just to make very specific what I mean, a trial judge to v/hom a motion to dismiss was submitted, either just before the verdict or just after verdict, in a case like Edwards versus South Carolina, for example, v/ould have to decide himself whether or not the fact as testified to by the police officers on the one side, and the demonstrators on the other showed Federal constitutional protection. Now, he could say to counsel, "Counsel, I am willing to go with what 12 good men and true say, and treat that as an advisory verdict." They have to decide the issue of guilt as to whether or not these people were obstructing the street, and that sort of thing, and that is the same factual question as the constitutional question. JUSTICE WHITE: Do you think, Mr. Amsterdam, that if t.he Federal judge himself, in some kind of a hearing on a motion, finds these facts and remands, and an appeal is taken, affirmed, and cert is dismissed, the case is remanded to the state courts, do you think the defense can be raised again? MR. AMSTERDAM: On Federal habeas corpus or on a straight 68 trial? JUSTICE WHITE: No, in a state court. MR. AMSTERDAM: I have no doubt that it can be raised in the state court. And we have that position here. JUSTICE WHITE: Even though the Federal Court has already terminated it? MR. AMSTERDAM: Sure, no question about that. If we have that in the Federal system, we have a possible conviction in a Federal habeas corpus. And the reason for that is that the facts established in the state court may not be the same as those established in a Federal court. And if the state court wrongly applied Federal lav; to the facts found in a state court, that would be a Federal constitutional violation just as it is today. This court can reverse, as it did in Edwards versus South Carolina, a state court proceeding in which, on the facts — JUSTICE WHITE: Then do you think that there can be only one removal petition? MR. AMSTERDAM: That raises a difficult question. Ordinarily — JUSTICE WHITE: I would think that would be completely consistent with your position to say that there could be. MR. AMSTERDAM: No, ordinarily there can be only one removal petition. The reason I boggled at that was simply that in this case — and this is one of the issues that is pertinent whether or not we are properly up here on appeal — this was filed before the Civil Rights Act of 1964,- before we had any grounds on which to seek removal. And I think the first opportunity we have to raise the substantive claims here — we could raise it again but only one petition could be filed. And I think that is not consistent at all with the position that if the case were remanded that the state court trial should be had on the facts of the Fede- reil Constitutional issue again. Today Federal habeas corpus will lie in order to give every litigant having a Federal claim one chance to cry his Federal issue before a Federal judge. It does not mean two chances. It does not mean that because one Federal habeas corpus petition can be filed, or two can be, or three can be, it only means that he has a right to have a Federal Court find the fact. But he a3.so has the right to have a state court apply Federal law right on facts found in the state cn proceeding. So I do not believe that if a Federal court remands after finding that there is no constitutional protection that he is deprives of the opportunities of raising the Federal issue. New facts may turn up at the hearing of the state court. It may well be that a state officer testifies somewhat differently than he did in a Federal court. And at that time he has a right, to say rto the state judge, on the testimony which you have just heard, "Your Honor, the Federal Constitution has been violated in this 3tate, and we invoke it." And we think the state court is obligated to entertain that Federal constitu tional defense. 70 THE CHIEF JUSTICE: Mr. Axnsterday, under your theory, what facts must be alleged in the petition for removal? MR. AMSTERDAM: Let roe answer that by specific reference. But I would say one thing before I do. Mr. Justice Fortas asked earlier whether or not — THE CHIEF JUSTICE: Let's stay with this question. Suppose you answer my question, please. MR. AMSTERDAM: Right. The allegation on page 2 of the removal petition •— and this is axampliary, this is the one group of petitioners, but it is exemplary as to the others — is that the petitioners sought to obtain service, food, entertainment and comfort at Leb's Restaurant, a restaurant open to the general publis 66 Luckie Street, Atlanta, Georgia. The further allegation is that they were arrested on this occasion for the sole purpose — and this is on page 1 — "Of aiding, abetting and perpetrating customs and uses having historice.l and psychological roots with respect to serving and selling members of the Negro race in places of public accommodation and convenience on a racially discriminatory basis, and upon terms and conditions not imposed on members of the so-called white or Caucasian race." It is further alleged on page 4 of the record conclusive ly that the petitioners are being prosecuted for acts done under color of authority derived from the Constitution and laws of the United States. 71 Now, that is a characterization of the earlier allega tion, which is that having entered restaurants with described addresses, and restaurants which it is alleged were open to the public, they were refused service on a ricially discriminatory basis. Now, we have no doubt that looked at under the Civil Rights Act of 1964, this is a sufficient allegation although *— THE CHIEF JUSTICE: Aren't both of those allegations conclusive? MR- AMSTERDAM: Oh, no. One could not make more specific allegations of fact on two issues. As we understand it, there are three issues which have to be shown to demonstrate that Hamm and Lupper applies. One, that there is a restraurant involved. Two, that it is covered by the Civil Rights Act of 1964. And three, that service was refused cn racial grounds. The allegation that it is a restaurant, Leb's- proprietary restaurant open to the general public on 6 6 Luckie Street, it is impossible to allege that in greater factual detail. The allegation that service was refused on racial grounds. The allegation that these people were seeking service and they are arrested for doing that pursuant to a deep-seated custom., et cetera, of racial discrimination in public service. Again, you could not allege in more detail as a matter of fact. Nov;, the only question — and this is the only one — on which the petition is deficient is in specifically alleging coverage under the Civil Rights Act of 1964. I think that is a paper issue, because I don't think that in this court Georgia has, I don't think it could, I don’t think it will, state that Let's or Davis House No. 3 in the heart of Atlanta Georgia, are not covered by the Civil Rights Act of 1964. But we think that even if they did the factual allegations are quite sufficient, the factual allegations of 66 Lucky Street. JUSTICE FORTAS: What has the Civil Rights Act of 1964 got to do with this case? That is what baffles me. The 1964 Act was passed after these arrests, wasn’t it? MR. AMSTERDAM: Yes. JUSTICE FORTASs How do you bridge those tv/o, Mr. Amsterdam? MR. AMSTERDAM: Hamm and Lupper have already bridged them JUSTICE FORTASs I understand that. But you are relying on rights, as I understand you, granted by the 1964 Act as relating back to an arrest which was made prior to the 1964 Act. That is not related to Hamm and Lupper. MR. AMSTERDAMs Well, if Hamm and Lupper protected prosecutions on the theory, as I understand it, if this is your Honors question, that once the 1964 Act was passed, from that point on it constituted a punishment or harassment under 202, the continuing prosecution, but that it did not necessarily 73 invalidate state arrests prior to that., I would go along with Your Honors on that. JUSTICE FORTAS: I am asking you about the technical problem that we have to face up to here, the chronology of this situation. MR. AMSTERDAM: I have no complaint with that. And this is one of the reasons, I may add, why I put less stress on the notion that they were denied their rights by the arrest, and that they cannot enforce them in the state proceeding which now exists. But what we have here is a proceeding which on July 2, 1964, at the time of the passage of the Act, was pending. At that point the Civil Rights Act of 1964 became applicable. The Federal court which had the cases at that time was authorised to remand the proceedings, or to maintain jurisdiction. JUSTICE FORTAS: I understand your procedural argument, whether I agree with it or not. But you still have the problem of relating the incidents here to the statute without the benefit of a Civil Rights Act. Separating out the question of remand jurisdiction, and the eligibility of that remedy, you still have the problem,it seems to me, of relating the defense here to 1443. And you can't do it — perhaps you cannot do it by reliance on the* Civil Rights Act. That is a question which I think both the Chief Justice and I have been trying to solicit your assistance on. MR. AMSTERDAM: Well, let me see if this is a satisfac tory way of doing it. Because this seems to me an approach which 74 one necessarily need follow. The complaint we made of the state prosecution in this case is that it itself is constitu tional, and not the arrest, but the prosecution, constitutes an .intimidation and a threat, coercion, punishment, or an attempt to punish, in the language of Hamm and Lupper, these three Civil. Right Act of 1364 demonstrations, sit-ins. Now, we say that as of July 2, 1964 it became im permissible for the state to maintain prosecutions whose effect was to harass and intimidate, coerce, punish, the persons for the exercise of the right, or for seeking — I won't put it in terms of exercising the right, there was no right then — but the statute says, and this court held in Ilamm and Lupper, that the state cannot now punish pre-act conduct which was simply sitting in a restaurant seeking service. We think that at that point a Federal court had — - which had the case is called upon, just as this Court called on all state courts which had these cases, to look at the case and decide whether the case is indeed a punishment and harassment, et cetera. If it is, we believe that that in effect calls into effect the removal statute which is intended to give: Federal jurisdiction to decide such a question. We do not for that purpose have to rely on the principle that arrests were illegal at the time made, although if necessary we adhere to arguments previously made in this court prior to Hamm and Lupper, we think that the court need not reach that the Constitution protected the conduct alleged 75 62 in this case, as well as the Civil Rights Act of 1964. JUSTICE FORTAS: I think we got started on this in response to Mr. Justice Harlan's question sometime ago. You said you were not relying on this as a constitutional right for the purposes of this case. So we will start looking for some other source of the right. If the Court should come to the conclusion that the Civil Rights Act of 1964 does not void prosecutions in this case, or is not invocable as a basis of Federal jurisdiction, then we indeed have a question here as we have in the Peaceck case, except that we have an additional and substantive question, one left open in Bell and other cases, as to whether or not the conduct here alleged is indeed protected by the Constitution. JUSTICE BLACK: Mr. Amsterdam, have there been any effort to remove cases of defendants who were arrested in California during the Watts episode? Have there been any efforts yet to remove those cases to the Federal courts? You have said that all that it is necessary to do is charge in order to have them filed in the Federal courts. MR. AMSTERDAM: I don't purport to speak with authority on what in fact was done at Watts. My recollection is that no attempt was made to remove any of those cases to the Federal courts. JUSTICE BLACK: What about in New York, have there been any up there? MR. AMSTERDAM: Yes, indeed. JUSTICE BLACK: Have they removed any? 76 S3 MR. AMSTERDAM; The Galamison opinion in the Second Circuit effectively barred removal of cases under the various theories put forth in the present cases in the Second Circuit. However, there has generally been attempts to remove — in the Hutchinson case, for example, stays have been given, and there are cases pending in the Second Circuit, yes. JUSTICE BLACK; This lav/ that you are arguing now does not apply just to some states, it applies to all? MR. AMSTERDAM; It certainly does. And it is quite un like in that regard the temporary Freedmen's Act which, gave general Federal jurisdiction to military tribunals, but this one v/as intended to be forever, and it was intended to be in all states forever, and our argument does not rest, as I have said, on this court’s finding or any Federal District Court's ' finding that the Superior Court of Fulton County, Georgia is unfair, or biased, or that the state courts in Mississippi are unfair or biased, or that the state courts throughout the South are unfair or biased. We claim Congress has made the judgment about state courts generally that just as in a diversity of cases, the rights of the Federal claimants need a Federal judge to protect them, and that from the outset, in cases involving civil rights, criminal cases, in which civil rights defenses are presented and can be sustained on the facts in front of the Federal judge, the case should be tried in front of the Federal judge, and not in front of the state judge, in New York, in 77 64 California, or in Fulton County, Georgia. JUSTICE BLACK: I asked you that question because: I gathered from your argument, I understand that in any case, criminal or civil, a colored man anywhere in the United States the question can be raised or removal if an affidavit is made that it involves prejudice against him on account of his color, and that then requires the Federal judge to pass on the fact as to whether that is true or not. MR. AMSTERDAM: No, my argument does not begin to go to that question, because the only case in which I seek to sustain removal jurisdiction is the case in which the affidavit to verify removal petition asserts that he is being prejudiced on account of color, or that the jury is prejudiced or the judge is prejudiced. JUSTICE BLACK: That is what I meant. MR. AMSTERDAM: No, our argument would not allow removal in those cases. JUSTICE BLACK: It would not allow removal, but it would be a reason for the court who has to pass to it, when any prosecution takes place against any person in any state on account of color. MR. AMSTERDAM: That is absolutely true, but it does not happen to have anything to do with my argument or how the Court decides this case. JUSTICE BLACK: it does have something to do with how 73 65 we decide it. MR. AMSTERDAM: But if a removal is filed the state proceeding stops. Now, no matter what you say about it, a lawyer can always file that paper if he is going to be dishonest. J think the only way in which this court can protect -— JUSTICE BLACK: He might be dishonest. I would not assume that he would be dishonest. MR. AMSTERDAM: The real risk, it seems to me, of interruption of state court process that flows in the removal of jurisdiction is two separate risks. One, that the removal jurisdiction will be in fact broader than it ought to be. And the cases which should not be brought into the Federal court will be brought there and will stay there. The second one is the risk that the jurisdiction will be abused because counsel will file frivolous papers that will take it into the Federal court. In your hypothetical case, Mr. Justice Black, I would not sustain removal. And so the first question, whether or not the Federal courts have taken jurisdiction announced to the state court in a case which they should not is not in the case. In the second one, in which counsel are filing wrongly, it may be either because of a mistake of law, or because they are abusing the process. A clear decision about this court as to the scope of 1443 will end, I think, such mistakes of law. As to abuse by counsel, that is inherent, or it potentially is inherent, whether 79 66 you stick v/ith the Rives-Powers — JUSTICE BLACK; I was not talking about abuse. There are many cases where those things could be represented, murder cases and many other cases. MR. AMSTERDAM; But they are not removal under our theory, our theory allows removal — JUSTICE BLACK; They would be removable, would they not, if the allegation was made under oath, as you say, that the Court was prejudiced against them, there was discrimination against them, that they could not get a fair trial because of their color. MR. AMSTERDAM: Our theory of removal would not authorize removal in that case. JUSTICE WHITE; Aren't you up here just saying that when the conduct for which the defendant is being prosecuted in the state court is itself permitted, expressly permitted by Federal lav;? MR. AMSTERDAM; Exactly. That is the only case in which we are arguing for removal, the case where a fellow is a Negro can't get a fair trial, that is immaterial. JUSTICE WHITE; This is not the kind of a case in which you are claiming that you won't get a fair trial, or that he is being discriminated against, it is that the express conduct that is permitted by Federal law is now being prosecuted in the state court? 80 MR. AMSTERDAM: Exactly. Those cases are being covered by Rives-Fowers, and we do not ask for this consideration here, we do not need to reach this case, and we do not ask for it. THE CHIEF JUSTICE: We will adjourn now. (Whereupon, at 12:00 o'clock noon, the argument was concluded.)