Walker v. Georgia Opinion

    IN THE

United States Coart of Appeals
FOR THE FIFTH CIRCUIT

No.  2 8 2 7 1

MARDON R. WALKER,

versus
Appellant,

STATE OF GEORGIA,
A ppellee.

Appeal from the United States District Court for the\ 
Northern District of Georgia

(September 29, 1969)

Before TUTTLE and SIMPSON, Circuit Judges, and 
CASSIBRY, District Judge.

TUTTLE, Circuit Judge: This case and the case
of Mardon R. Walker and James R. Forman v. State 
of Georgia, decided today by this court, are consoli­
dated appeals from the remand to the Superior Court 
of Fulton County, Georgia, of two removal petitions 
filed in the United States District Court for the North­



2 MARDON R. W ALKER v. STATE OF GEORGIA

ern District of Georgia, Atlanta Division, pursuant to 
Section 1443(1) Title 28, U.S.C.A.’ The precise issue 
before this court is whether the trial court applied 
an improper standard in ruling that the criminal pros­
ecution under the Georgia riot, malicious mischief, 
and other offenses against public order statutes2 were 
not removable to the United States District Court pur­
suant to Section 1443(1), although the movant alleged 
that the charges arose out of a peaceful attempt to 
obtain service at a racially segregated place of public 
accommodation.

Petitioner-appellant alleges in her petition for re­
moval that the statutes under which she is charged 
as applied and used against her infringe upon and * 1

’ “Any of the following civil actions or criminal prosecutions, com­
menced in a state court may be removed by the defendant to 
the district court of the United States for the district and divi­
sion embracing the place wherein it is pending:
(1) Against any person who is denied or cannot enforce 

in the courts of such state a right under any law pro­
viding for the equal rights of citizens of the United 
States, or of all persons within the jurisdiction there­
of.” 28 U.S.C.A. §1443(1).

2Ga. Code Ann,. §26-5302 (360 P.C.) “Riot'— Any two or more per­
sons who shall do an unlawful act of violence or any other 
act in a violent and tumultuous manner, shall be guilty of a riot 
and punished as for a misdemeanor. (Cobb, 811 Acts 1865-6 
p. 233).”
Ga. Code Ann. §26-8116 (781 P.C.) — “All other acts of mali­
cious mischief —• All other acts of wilful and malicious mis­
chief, in the injuring or destroying any other public or private 
property not herein enumerated shall be misdemeanors. (Cobb, 
825).
Ga. Code Ann. §26,5501 (366 P.C.) — “Punishment. All other 
offenses against the public peace, not herein provided for, 
shall be misdemeanors. (Cobb, 813).”



MARDON R. W ALKER v. STATE OF GEORGIA 3

deny her her equal rights and access to places of pub­
lic accommodations in violation of the specific grants 
of Title II of the Civil Rights Act of 1964; that the 
trying of said charges are attempts to “threaten, ha­
rass and intimidate” her and that petitioner is denied 
and/or cannot enforce in the courts of the state of 
Georgia rights under the law of the United States pro­
viding for the equal rights of citizens as guaranteed 
under Title II of the 1964 Civil Rights Act.

Petitioner-appellant, Mardon R. Walker, was a white 
exchange student from Connecticut College attending 
Spelman College in Atlanta, Georgia. She was arrested
with twelve other known individuals, on January 13, 
1964, and charged with trespass as a result of her 
joint participation in an attempt to obtain service at 
the Krystal, a hamburger stand in Atlanta, which is 
covered by Title II of the 1964 Civil Rights Act. Miss 
Walker was tried and convicted of trespass under a 
Georgia statute enacted after the early effort of Ne­
groes to obtain service at segregated restaurants; the 
period which is commonly referred to as the “sit-in 
movement.”3 She was sentenced to serve 18 months 
imprisonment and to pay a fine of $1,000 — the maxi­
mum sentence for a misdemeanor in Georgia. She was

sGa. Code Ann. §26-3005 ■— “Refusal to leave premises of another
when ordered to do so by owner or person in charge. —■ It 
shall be unlawful for any person who* is on the premises of 
another, to refuse and fail to leave such premises when re­
quested to do so by the owner or any person in charge of said 
premises or the agent or employer of such owner or such person 
in charge. Any person violating the provisions of this section 
shall be guilty of a misdemeanor and upon conviction thereof 
shall be punished as for a misdemeanor.” (Acts 1960, p. 142).



4 MARDON R. W ALKER v. STATE OF GEORGIA

later released on an appeal bond of $15,000 to be se­
cured by unencumbered real property located in Ful­
ton County, Georgia. This conviction and sentence were 
reversed by the United States Supreme Court on May 
24, 1965, on the authority of Hamm v. City of Rock 
Hill, 379 U.S. 306, 85 S.Ct. 384 (1964). See Walker v. 
Georgia, 381 U.S. 355, 85 S. Ct. 1557 (1965). On Novem­
ber 25, 1965, some 22 months after the protest at the 
Krystal and after the Supreme Court mandate came 
down, Miss Walker was ordered to stand a new trial 
and was newly indicted for her role in the same sit-in 
at the Krystal upon an order initiated by a Fulton 
County Superior Court Judge directing the Solicitor 
'General (now the district attorney) for the Atlanta 
Judicial Circuit to seek a grand jury indictment under 
the Georgia riot, malicious mischief and other offenses 
against public order statutes.

The petitioner-appellant removed this case to the 
United States District Court for the Northern District 
of Georgia; however, upon motion by the State 
of Georgia, the case was remanded to the Fulton Coun­
ty Superior Court.

On July 26, 1965, pursuant to the judgment of the 
Supreme Court of the United States, the Supreme Court 
of Georgia vacated the judgment affirming petition­
er’s trespass conviction and reversed the judgment 
of the Superior Court of Fulton County, Georgia. How­
ever, the trial court construed the order and judgment 
in remittitur to mean “simply one in which the con­
viction of defendant, Mar don R. Walker, under the 
original indictment had been set aside and reversed



MARDON R. W ALKER v. STATE OF GEORGIA 5

and the result was that the case stood for trial upon 
said indictment de novo in the Fulton County Superior 
Court.” This position nursed back to life the state of 
Georgia’s original trespass indictment No. 85,028. 
Therefore, the District Court had before it two indict­
ments against Miss Walker — one, a violation of Geor­
gia trespass statute and, two, a violation of Georgia’s 
malicious mischief, riot and other offenses against pub­
lic order statutes. Both of these indictments arose out 
of Miss Walker’s attempt to obtain service at the Krys­
tal on January 13, 1964.

The other individuals who participated in the attempt 
to obtain service at the Krystal were originally charged 
with violation of the Georgia trespass statute at the 
same time as Miss Walker on January 28, 1964. They 
were never indicted under either the Georgia riot, mali­
cious mischief or other offenses against public order 
statutes. These cases were removed to the United 
States District Court for the Northern District of Geor­
gia before they actually came to trial in Fulton County 
Superior Court and they were held in abeyance pend­
ing the outcome of Rachel v. Georgia, supra.4

The district court held the only full evidentiary hear­
ing on the merits of the petition for removal of Miss 
Walker’s co-demonstrators who were charged under

■̂ There was a total of 125 trespass cases arising out of attempts to 
obtain service at racially segregated restaurants in Atlanta being 
held in abeyance pending the outcome of Rachel. Only the case 
at bar and Mardon Walker and James Forman v. Georgia 
were remanded to the state trial court. Also these are the only 
two cases which charged the defendants with charges other 
than violation of Georgia’s trespass statute.



6 MARDON R. W ALKER v. STATE OF GEORGIA

the Georgia trespass statute at the same time it heard 
the evidence against Miss Walker under the trespass 
and other statutes on September 28, 1967. As a result 
of this hearing, the court, in its order of April 2, 1968, 
found that all of Miss Walker’s co-defendants, as well 
as Miss Walker, who were arrested on the trespass 
charges at the Krysta'l were requested to leave solely 
because of race. The court concluded that as a matter 
of law these cases were properly removable under 
Section 1443(1), Title 28, United States Code and dis­
missed the indictments with full prejudice. The No. 
85,028 trespass indictment against Miss Walker which 
grew out of the demonstration at the Krystal was thus 
dismissed with full prejudice. However, the other 
charges were remanded to the state court.

It must be made plain that Miss Walker’s trespass 
case, in support of which the state introduced all of 
its evidence, was held removable and it was dismissed, 
but her case charging the breach of the other statutes, 
while not supported by any additional evidence, was 
held not removable. In other words, the court held 
that whatever she did at the Krystal was solely peace­
able and removable under Rachel, but the same acts 
may have been non-peaceable under some other stat­
ute. The court did not make a finding that she com­
mitted any such acts, but held the nature of the charge 
required that the state try her for them.

Miss Walker, in her joint attempt with the twelve 
other individuals, did nothing differently than the other 
individuals which would support the state of Georgia’s 
charges of malicious mischief, riot and violation of



MARDON R. W ALKER v. STATE OF GEORGIA 7

public order. There was no evidence submitted in the 
trial below even to suggest that Miss Walker’s conduct 
was different from that of her co-demonstrators. In 
fact such conduct as could have been considered bois­
terous or a nuisance was clearly attributable to others 
and not to her. No definite act or acts could be attribu­
ted to Miss Walker.

The Georgia trespass statute has not been held to 
be per se unconstitutional by the United States Su­
preme Court. The Court only held that the statute could 
not be used to deny a person rights guaranteed by 
Title II of the 1964 Civil Rights Act. If a person came 
into a restaurant or any other place covered by Title 
II and began to do something other than that which 
Title II gave him the right to do — to be served, the 
owner of the restaurant could ask him to leave and 
Title II would be no defense against any action against 
him, including an action in trespass. As the Court stat­
ed in Georgia v. Rachel, supra, at 807: “If service was 
denied for other reasons [other than race] no case for 
removal would be made out.”

Therefore, when the district court found that all of 
the demonstrators including Miss Walker were being 
indicted under the Georgia trespass statute solely be­
cause of race or racial policies of the Krystal, the 
court necessarily by implication made a finding of 
fact that the demonstrators, including Miss Walker, 
did no acts for which the manager of the Krystal could 
legally ask them to leave.



8 MARDON R. W ALKER v. STATE OF GEORGIA

It would, therefore, appear that the only reason why 
the charges against petitioner-appellant Walker for 
malicious mischief, riot and other offenses against pub­
lic order were remanded was simply because they were 
not t r e s p a s s  charges or “thinly veiled trespass 
charges.” This is not the proper standard for determin­
ing if a state criminal prosecution is removable under 
§1443(1).

The petition for removal is to be determined not 
by the appellation or euphemism of the charge but 
by what the movant was actually doing. As we held 
today in Forman v. Georgia, the right of removal of 
a state criminal prosecution has not been restricted 
by the Supreme Court to the small group of cases 
in which a state prosecution for trespass seeks to forbid 
the enjoyment of the right to equal accommodations 
guaranteed under Title II of the Civil Rights Act of 
1964.® Whatley v. City of Vidalia, 5 Cir., 399 F. 2d 
521 (1965). See Wyche v. State of Louisiana, 5 Cir., 
394 F. 2d 927 (1967) (aggravated burglary), and Ach- 
tenberg, et al, v. State of Mississippi et al, 5 Cir., 
393 F. 2d 468 (1968) (vagrancy). It is what the movant 
was actually doing with respect to the exercise of his 
statutory federally protected right, as determined in 
a hearing for remand, that .controls and not the char­
acterization given to the conduct in question by a state

sSenator Humphrey, floor manager of the Civil Rights Act of 1964, 
said, in explaining the Act, that “ this plainly means that a 
defendant in a criminal trespass, breaches of the peace or other 
similar cases can assert the right created by 201 and 202 and 
that state courts must entertain defences grounded upon these 
provisions.” 110 Cong. Rec. 9767.



MARDON R. W ALKER v. STATE OF GEORGIA 9

prosecutor, Wyche v. State oj Louisiana, supra, at 928. 
Georgia v. Rachel, 384 U.S. 807. It is well settled that 
Section 1443(1) civil rights removal cases require a 
sufficient evidentiary hearing on the merits of the 
charges to determine whether the defendants are ac­
tually being prosecuted solely for peacefully attempt­
ing to gain equal access to places of public accommo­
dations. A remand by the appellate court to the dis­
trict court for such a hearing is the usual procedure 
where none has been held, Wyche v. Louisiana, supra, 
or when the hearing is found to have been inadequate. 
Walker v. Georgia, supra. But where there has been 
an adequate hearing and the undisputed facts show 
a valid case for removal, as here, the Court of Appeals 
has remanded with direction to dismiss the state prose­
cution, Achtenberg v. Mississippi, supra.

The district court held a full evidentiary hearing 
on the merits of the trespass charges, and found that 
the charges were without merit and based solely on 
race. Since the charges at issue here were based on 
the same set of facts and the same attempt to obtain 
service at the then racially segregated Krystal, as the 
trespass charges, we hold that the trial court’s finding 
of fact under Miss Walker’s trespass charges is suf­
ficient to place this case in the Achtenberg category. 
There is no need to delay the ultimate disposition of 
the case by remanding it to the district court for a 
new hearing or any other determination. Therefore, 
the case is REMANDED to the district court with di­
rection to dismiss the indictment with prejudice.

REVERSED and REMANDED.
Adm. Office, U.S. Courts—Scofields’ Quality Printers, Inc., N. O., La.