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Brief Collection, LDF Court Filings. Hillegas v. Sams Petition for Writ of Certiorari to the US Court of Appeals for the Fifth Circuit, 1965. eee0833c-b89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/7d1521da-44f1-4548-884d-fffee4298877/hillegas-v-sams-petition-for-writ-of-certiorari-to-the-us-court-of-appeals-for-the-fifth-circuit. Accessed June 01, 2025.
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I n t h e
§>ujirm£ CUnurt of tlu Inttofu
October Term, 1965
No................
J an H illegas,
—v.—
Petitioner,
J oe Sams, J b., County Attorney for Lowndes County, Mis
sissippi, and P enn Taylor, Sheriff and Custodian of
the County Jail of Lowndes County, Mississippi,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
H enry M. A ronson
538^2 North Farish Street
Jackson, Mississippi 39202
J ack Greenberg
J ames M. Nabbit, III
Melvyn Zarr
10 Columbus Circle
New York, New York 10019
Anthony G. A msterdam
3400 Chestnut Street
Philadelphia, Pa. 19104
Of counsel:
R. J ess Brown
Carsie A. H all
J ack H. Y oung
I N D E X
Citations to Opinions Below ....................................... 1
Jurisdiction ............................. ..................................... . 2
Question Presented ....................................................... 2
Constitutional and Statutory Provisions Involved...... 3
Statement ......................... 5
Reasons for Granting the Writ ..................... 9
I. The Case Presents an Important Issue Respect
ing the Federal Judicial Power and Obligation
to Protect Civil Rights, Not Heretofore Decided
by This Court .................................... 9
II. The Decision Below Is Wrong and Seriously Im
pairs Federal Judicial Power to Protect Na
tional Civil Rights .............................................. 14
A. Federal Habeas Corpus Courts Are Empow
ered to Discharge From Mesne Restraints
Petitioners Held to Answer Unconstitutional
State Prosecutions ........................................ 14
B. Petitioner’s Prosecution Is Unconstitutional 14
PAGE
n
C. A Federal Habeas Corpus Applicant in Peti
tioner’s Situation Is Not Required to Ex
haust State Judicial Remedies ..................... 17
(1) Wyckoff, Brown v. Bayfield and 28
U. S. C. §2254 ................... 18
(2) Legislative History ................................ 23
(3) Judicial Development of the Exhaustion
Doctrine .................................................. 40
(4) Application of the Exhaustion Doctrine
to Civil Rights Cases ...... ........ 45
(5) Application of the Exhaustion Doctrine
to Cases Involving Federal Voting
Rights ..................................................... 53
Conclusion................................................................................. 58
Appendices ................................................................................ l a
A ppendix I—
Order of the District Court................................... la
Appendix II—
Opinion and Judgment of the Court of Appeals .... 2a
Appendix III—
Petition for Writ of Habeas Corpus...... ............... 15a
PAGE
H I
Table of Cases
page
Anderson v. Elliott, 101 Fed. 609 (4th Cir. 1900),
dism’d 22 S. Ct. 930 (1902) ............. .......................... 55
Application of Wyckoff, 196 F. Snpp. 515 (S. D. Miss.
1961), 6 Race Rel. L. Rep. 786 ..........8, 9,17,18, 20, 22, 44
Baggett v. Bullitt, 377 U. S. 360 (1964) ..............11, 48, 51
Baker v. Grice, 169 U. S. 284 (1898) ....... .................... 14, 43
Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963) .... 50
Barr v. Columbia, 378 U. S. 146 (1964) ..................... 16
Bates v. Little Rock, 361 U. S. 516 (1960) ................. 15
Birsch v. Tumbleson, 31 F. 2d 811 (4th Cir. 1929) ___ 55
Bouie v. Columbia, 378 IT. S. 347 (1964) .................. 17
Brotherhood of Railroad Trainmen v. Virginia ex rel.
Virginia State Bar, 377 U. S. 1 (1964) ..................... 15
Brown v. Cain, 56 F. Supp. 56 (E. D. Pa. 1944) .......... 55
Brown v. Rayfield, 320 F. 2d 96 (5th Cir. 1963), cert.
denied, 375 TJ. S. 902 (1963) ........ 8, 9,17,18,19, 21, 22, 44
Bushell’s Case, Vaughan, 6 How. St. Tr. 999, 124 Eng.
Rep. 1006 (1670) .................................... .................... 24
Castle v. Lewis, 254 Fed. 917 (8th Cir. 1918) .......... 55
Cline v. Frink Dairy Co., 274 IT. S. 445 (1927) .......... 16
Cohens v. Virginia, 6 Wheat. 264 (1821) ..................37, 46
Cook v. Hart, 146 U. S. 183 (1892) ......................... 14, 22
Cooper v. Aaron, 358 IT. S. 1 (1958) ................... ...... . 49
Cox v. Louisiana, 379 IT. S. 536 ........... ....................... 15
Cox v. Louisiana, 348 F. 2d 750 (5th Cir. 1965) ....10, 48, 50
Cramp v. Board of Public Instruction, 368 IT. S. 278
(1961) .............. ...................... ................................ . 50
Cunningham v. Skiriotes, 101 F. 2d 635 (5th Cir. 1939) 43
i y
Darr v. Burford, 339 U. S. 200 (1950) ........................ 22
IJi[worth v. Riner, 343 F. 2d 226 (5th Cir, 1965) ....—10, 50
Dombrowski v. Pfister, 380 U. S. 479 (1965) ...... 10,12,16,
48, 50
PAGE
Douglas v. City of Jeannette, 319 U. S. 157 (1943) —11,12
Edwards v. South Carolina, 372 U. S. 229 (1963) —15,51
England v. Louisiana State Board of Medical Exam
iners, 375 U. S. 411 (1964) ....................................... 52
Ex parte Ah Lit, 26 Fed. 512 (D. Ore. 1886) .............. 42
Ex parte Bartlett, 197 Fed. 98 (E. D. Wise. 1912) ...... 43
Ex parte Bollman, 4 Cranch 75 (1807) ....... ................. 24
Ex parte Bridges, 4 Fed. Cas. 98, No. 1,862 (C. C. N. D.
Ga. 1875) .................................................................... 41
Ex parte Conway, 48 Fed. 77 (C. C. D. S. C. 1891) .... 56
Ex parte Hawk, 321 U. S. 114 (1944) ........................ 22,44
Ex parte Lange, 18 Wall. 163 (1873) ............................ 24
Ex parte McCardle, 6 Wall. 318 (1867) ........................ 41
Ex parte McCready, 15 Fed. Cas. 1345, No. 8,732
(C. C. E. D. Va. 1874) .......... ............................. ...... 41
Ex parte Royall, 117 IJ. S. 241 (1886) ...... 11,14, 22, 42, 43,
44, 45, 46, 49, 53
Ex parte Tatem, 23 Fed. Cas. 708, No. 13,759 (E. D.
Va. 1887) ..... .............................................................. 41
Ex parte Tilden, 218 Fed. 920 (D. Ida. 1914) .............. 55
Ex parte United States ex rel. Anderson, 67 F. Supp.
374 (S. D. Fla. 1946) .............................................. 55
Ex parte Warner, 21 F. 2d 542 (N. D. Okla. 1927) ...... 55
Ex parte Watkins, 3 Pet. 193 (1830) ............................ 24
Ex parte Wood, 155 Fed. 190 (C. C. W. D. N. C. 1907) .. 56
y
Farmer v. State, 161 So. 2d 159 (Miss. 1964) ______ 51
Fay v. Noia, 372 U. S. 391 (1963) .....12,13, 25, 26, 28, 40, 48
Feiner v. New York, 340 U. S. 315 (1951) ................. 52
Fields v. Fairfield, 375 U. S. 248 (1963) ..................... 16
Fields v. South Carolina, 375 U. S. 44 (1963) ........ ..15, 51
Flynn v. Fuellhart, 106 Fed. 911 (C. C. W. D. Pa. 1901) 55
Garner v. Louisiana, 370 U. S. 157 (1963) ...... ......... 16
Garrison v. Louisiana, 379 U. S. 64 (1964) .............. 50
Gibson v. Florida Legislative Investigating Committee,
372 U. S. 539 (1963) .................................................. 15
Griffin v. County School Board of Prince Edward
County, 377 U. S. 218 (1964) ................................... 49
Hague v. C. I. O., 307 U. S. 496 (1939) ........................ 15, 45
Henry v. Eock Hill, 376 U. S. 776 (1964) ................ 15,51
Hunter v. Wood, 209 IT. S. 205 (1908) ..................... 14, 56
In re Alexander, 84 Fed. 633 (W. D. N. C. 1898) ..... 43
In re Fair, 100 Fed. 149 (C. C. D. Neb. 1900) ............ 54
In re Lee Sing, 43 Fed. 359 (C. C. N. D. Cal. 1890) .... 44
In re Lee Tong, 18 Fed. 253 (D. Ore. 1883) ........... 42
In re Loney, 134 U. S. 372 (1890) .....................14, 55, 56, 57
In re Matthews, 122 Fed. 248 (E. D. Ky. 1902) .... 55
In re Miller, 42 Fed. 307 (E. D. S. C. 1890) ........... 55
In re Neagle, 135 U. S. 1 (1890) .............. .......14, 25, 27, 53,
54, 55, 56, 57
In re Parrott, 1 Fed. 481 (C. C. D. Cal. 1880) ....... 42
In re Quong Woo, 13 Fed. 229 (C. C. L>. Cal. 1882) ..... 42
In re Sam Kee, 31 Fed. 680 (C. C. N. D. Cal. 1887) .... 44
In re Tie Loy, 26 Fed. 611 (C. C. D. Cal. 1886) ... 42
In re Wan Yin, 22 Fed. 701 (D. Ore. 1885) .......... 42
PAGE
VI
Johnson v. Zerbst, 304 U. S. 458 (1938) ..................... 24
Kentucky v. Powers, 201 U. S. 1 (1906) ..................... 11
Knight v. State, 161 So, 2d 521 (Miss. 1964) .......... 51
Lima v. Lawler, 63 F. Supp. 446 (E. D. Va. 1945) ...... 55
Lombard v. Louisiana, 373 U. S. 267 (1963) .............. 16
McNeese v. Board of Education, 373 U. S. 668 (1963)
39, 48
Marsh v. Alabama, 326 TJ. S. 501 (1946) ..................... 50
Minnesota v. Brundage, 180 U. S. 499 (1901) ______ 43
Monroe v. Pape, 365 U. S. 167 (1961) .........................39, 48
Mooney v. Holohan, 294 U. S. 103 (1935) ..................... 44
Moss v. Glenn, 189 U. S. 506 (1903) ...... ..................... 22
N.A.A.C.P. v. Alabama, 357 U. S. 449 (1958) .............. 15
N.A.A.C.P. v. Button, 371 U. S. 415 (1963) .......... 15,17, 50
New York v. Eno, 155 U. S. 89 (1894) ...................... . 22
New York Times Co. v. Sullivan, 376 U. S. 254 (1964) .. 50
Ohio v. Thomas, 173 U. S. 276 (1899) ........................ 54
Peacock v. City of Greenwood, 347 F. 2d 679 (5th Cir.
1965) ........................................................................... 48
People v. McLeod, 25 Wend. 482 (Sup. Ct. N. Y.
1841) ........ ................................................... ............. 26,27
Peterson v. Greenville, 373 U. S. 244 (1963) .......... . 16
Prince v. Massachusetts, 321 U. S. 158 (1944) ...... 50
Rachel v. Georgia, 342 F. 2d 336 (5th Cir. 1965), cert.
granted, 34 U. S. L. W. 3101 (10/11/65) ..............12,48
Eeed v. Madden, 87 F. 2d 846 (8th Cir. 1937) .............. 54
Robinson v. Florida, 378 U. S. 153 (1964) ................ . 16
PAGE
V ll
Saia v. New York, 334 U. S. 558 (1948) ........ 50
Shelton v. Tucker, 364 U. S. 479 (1960) ..................... 15
Smith v. California, 361 U. S. 147 (1959) ................. 50
Staub v. Baxley, 355 U. S. 313 (1958) .......... .............. 15
Thomas v. Collins, 323 IT. S. 516 (1945) ................... 15
Thomas v. Mississippi, 380 IT. S. 524 (1965) ......... ...... 51
Thomas v. State, 160 So. 2d 657 (Miss. 1964) ........... 51
Thompson v. Louisville, 362 U. S. 199 (1960) ..... ........ 16
Townsend v. Sain, 372 U. S. 293 (1963) ..................48,53
PAGE
United States v. Classic, 313 U. S. 299 (1941) .......... 15
United States v. Hamilton, 3 Dali. 17 (U. S. 1795) .... 24
United States v. L. Cohen Grocery Co., 255 IT. S. 81
(1921) .................. 16,17
United States ex rel. Drury v. Lewis, 200 U. S. 1
(1906) ...... - ........................... ........................13,14, 22, 55
United States ex rel. Kennedy v. Tyler, 269 U. S. 13
(1925) ........ 55
United States v. Lipsett, 156 Fed. 65 (W. D. Mich.
1907) ............................................................ 55
United States v. Mississippi, 229 F. Supp. 925 (S. D.
Miss. 1964), rev’d, 380 U, S. 128 (1965) ................. 5
United States v. National Dairy Products Co., 372 U. S.
29 (1963) ..................... 17
United States v. Haines, 362 U. S. 17 (1960) .............. 15
United States ex rel. Silverman v. Fiscus, 42 Fed. 395
(W. D. Pa. 1890) ......................................................... 43
United States v. Wood, 295 F. 2d 772 (5th Cir. 1961),
cert, denied, 369 U. S. 850 (1962) ............................ 57
Virginia v. Rives, 100 U. S. 313 (1880) 11
V1U
West Virginia v. Laing, 133 Fed. 887 (4th Cir. 1904) .... 55
Whitten v. Tomlinson, 160 U. S. 231 (1895) ..............14,22
Wildenhus’s Case, 120 U. S. 1 (1887) .................— 14,55
Wo Lee v. Hopkins, 118 U. S. 356 (1886) ..... 44
Wright v. Georgia, 373 U. S. 284 (1963) ................... 17
Yick Wo v. Hopkins, 118 U. S. 356 (1886) ..................... 44
Statutes
Act of September 24, 1789, ch. 20, §14, 1 Stat. 73 ....23, 25, 37
Act of February 13, 1801, ch. 4, §11, 2 Stat. 89 .... 37
Act of March 8, 1802, ch. 8, 2 Stat. 132......................... 37
Act of February 4,1815, ch. 21, §8, 3 Stat. 195.............. 37
Act of March 3, 1815, ch. 43, §6, 3 Stat. 231................. 37
Act of March 2,1833, ch. 57, 4 Stat. 632 ................. 23, 25, 37
Act of August 29, 1842, eh. 257, 5 Stat. 539 ................. 23, 26
Act of March 3,1863, ch. 81, §5, 12 Stat. 755 ................. 38
Act of March 7, 1864, ch. 20, §9, 13 Stat. 14 .................. 38
Act of June 30, 1864, ch. 173, §50, 13 Stat. 223 ......,....... 38
Act of April 9, 1866, ch. 31, §3, 14 Stat. 27 .......30, 38, 39, 47
Act of May 11, 1866, ch. 80, 14 Stat. 46 ................. 33, 34, 38
Act of July 13,1866, ch. 184,14 Stat. 98........................ 38
Act of July 16, 1866, ch. 200, 14 Stat. 173..................... 29
Act of February 5, 1867, ch. 28, 14 Stat. 385 ....23, 27, 30, 33
Act of March 27, 1868, ch. 34, §2, 15 Stat. 4 4 .............. 41
PAGE
PAGE
Act of May 31, 1870, ch. 114, §§8, 18, 16 Stat. 140, 142,
144 ....................................................................... ........
Act of February 28, 1871, ch. 99, §16, 16 Stat. 438 ....38,
Act of April 20, 1871, ch. 22, §1, 17 Stat. 13 ..............
Act of March 1, 1875, ch. 114, §3, 18 Stat, 335 ..........
Act of March 3, 1875, ch. 137, 18 Stat. 470 ................. 37,
28 IT. S. C. §1343 (1958) .......................... .......... 11, 38,
28 U. S. C. §1443 (1958) .................................... 11, 30,
28 U. S. C. §2241 (1958) .......................................... 23,
28 IT. S. C. §2241(c)(2) (1958) .................................
28 IT. S. C. §2241(c) (3) (1958) ................. 9,14,27,40,
28 IT. S. C. §2251 (1958) ....... .... ............................... .
28 IT. S. C. §2253 (1958) ............................ ...............
28 U. S. C. §2254 (1958) ............. ........................19, 20,
42 IT. S. C. §1983 (1958) .............................. 5,16,
42 U. S. C. §1985 (1958) ............................................ 5,
42 IT. S. C. A. §1971 (1964) ............................ 5,16, 56,
Miss. Const, art. 8, §§201, 205, 207 .................. .............
Miss. Const, art. 10, §225 ...... .......... .......... ..................
Miss. Const, art. 12, §§241-A, 244 .................................
Miss. Code Ann. §2666(c) ................................... 4,14,16,
Miss. Code Ann. §§2056(7), 2339, 4065.3 .....................
Miss. Laws, 1st Extra. Sess. 1962, chs. 4, 9, 16, 20
39
39
38
39
39
45
47
54
54
54
28
21
22
38
16
57
16
16
16
17
16
16
X
Other A uthorities
page
Amsterdam, Criminal Prosecutions Affecting Federally
Guaranteed Civil Eights: Federal Bemoval and
Habeas Corpus Jurisdiction to Abort State Court
Trial, 113 U. Pa. L. Bev. 793 (1965) .....................10, 21
IY Bacon’s Abridgment (Philadelphia 1844) .............. 24
3 Blackstone, Commentaries (6th ed., Dublin, 1775) ....24, 25
Brennan, Federal Habeas Corpus and State Prisoners:
An Exercise in Federalism, 7 Utah L. Bev. 423
(1961) ....................................................................... 25,40
Chafee, How Human Bights Got Into the Constitution
(1952) ...... 25
3 Comyns, Digest of the Laws of England (1785) ___ 23
Cong. Debates, vol. 9, Pt. 1 ....................................... 26
Cong. Globe, 27th Cong., 2d Sess.t ................................... 27
Cong. Globe, 39th Cong., 1st Sess.......................29, 34, 38, 39
Dunning, Essays on the Civil War and Beconstruc-
tion (1898) .................................................................. 38
Frankfurter & Landis, The Business of the Supreme
Court (1928) ......................................................... 39
2 Hale, Pleas of the Crown (1st American ed. Phila
delphia, 1847) .......................................................... 23
Hart, Foreword, The Supreme Court, 1958 Term, 73
Harv. L. Bev. 84 (1959) ............................................ 25
Hart & Wechsler, The Federal Courts and the Federal
System (1954) .......................................................... 37
XL
PAGE
9 Holdsworth, A History of English Law (1926) ....24,25
H. E. 3214, 80th Cong., 2d Sess. (1948) .......... .......... 21
1 Morison & Commager, Growth of the American Re
public (4th ed. 1950) ................................................26, 37
Note, Federal Habeas Corpus for State Prisoners:
The Isolation Principle, 39 N. Y. U. L. Eev. 78
(1964) ......................................................................... 25
Note, The Freedom Writ—The Expanding Use of Fed
eral Habeas Corpus, 61 Harv. L. Rev. 657 (1948) .... 25
Note, 109 U. Pa. L. Rev. 67 (1960) ......................... . 16
Oaks, Habeas Corpus in the States, 32 U. Chi. L. Rev.
243 (1965) .................................................................... 24
Reitz, Federal Habeas Corpus: Impact of an Abortive
State Proceeding, 74 Harv. L. Rev. 1315 (1961) ...... 25
Reitz, Federal Habeas Corpus: Postconviction Remedy
for State Prisoners, 108 U. Pa. L. Rev. 461 (1960) .... 25
Report of the Seventh Annual Meeting of the American
Bar Association (1884) ................................. ........... . 42
Sen. Rep. No. 1559, 80th Cong. 2d Sess. (1948) .......... 21
Thompson, Abuses of the Writ of Habeas Corpus, 18
Am. L. Rev. 1 (1884) ............................................... . 24
1 Warren, The Supreme Court in United States His
tory (Rev. ed. 1932) .................................................... 37
Wechsler, Federal Jurisdiction and the Revision of
the Judicial Code, 13 Law & Contemp. Prob. 216
(1948) ....... 48
I n t h e
( t o r t o f % Bitmtrfr S ta irs
October Term, 1965
No................
J an H illegas,
Petitioner,
J oe Sams, J r., County Attorney for Lowndes County, Mis
sissippi, and P enn T aylor, Sheriff and Custodian of
the County Jail of Lowndes County, Mississippi,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Petitioner prays that a writ of certiorari issue to review
the judgment of the United States Court of Appeals for
the Fifth Circuit entered August 16, 1965, rehearing of
which was denied September 27, 1965.
Citations to Opinions Below
The order of the United States District Court for the
Northern District of Mississippi denying petitioner’s ap
plication for a writ of habeas corpus is unreported and is
set forth in Appendix I hereto, p. la infra. The opinion
of the majority of the Court of Appeals, affirming the order
2
of the district court, and the special concurring opinion of
Circuit Judge Brown are reported at 349 F. 2d 859, and are
set forth in Appendix II hereto, pp. 2a-lla infra. No
opinion was written on denial of petition for rehearing.
Jurisdiction
The judgment of the Court of Appeals was entered Au
gust 16, 1965, p. 2a infra. Timely petition for rehearing
was denied September 27, 1965, p. 14a infra. The juris
diction of this Court is invoked under 28 U. S. C. § 1254(1)
(1958).
Question Presented
Petitioner, a civil rights worker, was arrested in the
Lowndes County, Mississippi courthouse, where she was
assisting Negroes to register to vote. She was thereafter
charged with vagrancy. Prior to her state trial, she peti
tioned the United States District Court for a writ of habeas
corpus, alleging that the Mississippi vagrancy statute was
void on its face for vagueness; that the conduct for which
she was prosecuted was conduct protected by the First
Amendment, the Privileges and Immunities, Due Process
and Equal Protection Clauses of the Fourteenth Amend
ment and the Fifteenth Amendment; that her prosecution
was utterly groundless in fact and was a device designed
to harass and punish her and thus to intimidate prospec
tive Negro voter registration applicants, denying them, on
racial grounds, the franchise in federal, state and local elec
tions. The district court denied the petition without hearing
3
On this record, did the Court of Appeals for the Fifth
Circuit err in sustaining the ruling of the district court
that petitioner was required to exhaust her Mississippi
remedies ?
Constitutional and Statutory Provisions Involved
1. The case involves 28 U. S. C. §§2241, 2251 (1958),
in pertinent part as follows:
§ 2241. Power to grant writ.
(a) Writs of habeas corpus may be granted by the
Supreme Court, any justice thereof, the district courts
and any circuit judge within their respective jurisdic
tions.
(c) The writ of habeas corpus shall not extend to
a prisoner unless—
# # # * #
(3) He is in custody in violation of the Constitu
tion or laws . . . of the United States; . . .
§ 2251. Stay of State court proceedings.
A justice or judge of the United States before whom
a habeas corpus proceeding is pending, may, before
final judgment or after final judgment of discharge, or
pending appeal, stay any proceeding against the per
son detained in any State court or by or under the
authority of any State for any matter involved in the
habeas corpus proceeding.
on the ground of failure to exhaust Mississippi state judi
cial remedies.
4
After the granting of such a stay, any such proceed
ing in any State court or by or under the authority of
any State shall be void. If no stay is granted, any
such proceeding shall be as valid as if no habeas corpus
proceedings or appeal were pending.
2. The case involves Miss. Code Aw .. 1942, § 2666(c)
(Recomp. Vol. 1956):
§ 2666. Vagrants, who are.
The following persons are and shall be punished as
vagrants, viz.:
-at. jx,w •7T w w
(c) All persons able to work, having no property
to support them, and who have no visible or known
means of a fair, honest and reputable livelihood. The
term “visible and known means of a fair, honest and
reputable livelihood,” as used in this section, shall be
construed to mean reasonably continuous employment
at some lawful occupation for reasonable compensation,
or a fixed and regular income from property or other
investment, which income is sufficient for the support
and maintenance of such person.
3. The case also involves the First, Fourteenth and
Fifteenth Amendments to the Constitution of the United
States.
5
Statement
This petition brings for review a judgment below deny
ing federal habeas corpus. Petitioner seeks release from
the custody of respondents, the County Attorney and
Sheriff-Jailer of Lowndes County, Mississippi, who hold
petitioner pursuant to Mississippi state vagrancy charges
under Miss. Code A nn . § 2666(c) (Recomp. Vol. 1956),
set forth at p. 4 supra. The district court having denied
the petition without return or hearing, the following alle
gations must be taken as true for purposes of review.1
The Council of Federated Organizations (COFO) is an
association of civil rights and local citizenship groups
working in Mississippi to achieve, by peaceful and lawful
means, the equal civil rights of Negroes and all persons and,
particularly, to educate, assist and encourage Negroes to
register and vote in local, state and national elections free
of racial discrimination (Petition, Appendix II infra, 16a).
Now and during many years past, the county registrar of
Lowndes County, Mississippi, has denied and is denying
Negroes the right to register to vote by reason of race, in
violation of the Fourteenth and Fifteenth Amendments and
42 U. S. C. A. § 1971 (1964); 42 U. S. C. §§ 1983, 1985 (1958).
In 1961, the voting age population of Lowndes County was
16,460 white and 8362 Negro; there were 5869 registered
white voters and 63 registered Negro voters; these figures
have not substantially changed (21a).2 One of COFO’s pur-
1 The petition is set out in its entirety in Appendix III hereto,
pp. 15a-26a infra.
2 The Government has brought suit against the registrar of
Lowndes County and others to enjoin these discriminatory prac
tices. United States v. Mississippi, 229 F, Supp. 925 (S. D. Miss.
1964), rev’d, 380 U. S. 128 (1965).
6
Petitioner is a 21-year-old white girl, a New York domi
ciliary and a college graduate, employed full-time by COFO
as a voter registration worker (16a). Her duties for COFO
include: interviewing Negro citizens of Mississippi for the
purpose of educating, encouraging and assisting them to
register to vote; accompanying such Negroes to the place of
voting registration for the purpose of supporting their ef
forts to register free of racial discrimination; observing
conduct by state officials or other persons calculated to
racially disfranchise Negroes in violation of the Fourteenth
and Fifteenth Amendments; and participating in the ad
ministrative activities of COFO’s voter registration pro
gram (16a-17a). In return for her services, COFO supplies
her decent lodgings (in the home of a well-known, respected
retired Negro minister in Columbus, Mississippi), meals,
support, maintenance, and reasonable livelihood, including
all things necessary to sustain her as a reputable member
of the community (17a). In addition, petitioner receives
from her mother in New York sufficient money to meet all
her needs (18a).
December 28, 1964, in the course of her COFO employ
ment, petitioner, with two COFO co-workers, was present
in the county courthouse for Lowndes County, assisting
Negro voter registration applicants by: (1) directing them
to the voter registration office; (2) supporting them, by
her presence as an observer, against intimidation and
harassment; and (3) interviewing them after their attempts
to register, for the purpose of ascertaining whether the
registrar was obstructing their attempts to register (18a).
While conducting themselves in these activities in a peace
poses is to educate, assist and encourage Negro citizens and
residents of Lowndes County to register to vote (16a).
7
ful and orderly manner, the three workers were arrested
by a deputy sheriff who had been informed that they were
COFO workers (18a-19a). Charged with vagrancy, peti
tioner offered to show the arresting officer money and a
“vagrancy form” prepared by COFO against such a con
tingency, which stated that petitioner was a COFO em
ployee. The officer refused to look at the form and held
them for vagrancy (19a-20a). The following day an au
thorized COFO agent went to the County Attorney and
informed him: that petitioner was a New York domiciliary,
a college graduate, a COFO employee; that by arrange
ment of COFO she lived without expense to herself in
the home of a well-known and respected retired Negro
minister in the same town where she was arrested and
held; that COFO supplied petitioner all her meals and
necessaries. The COFO agent also showed the County
Attorney a telegram dated that morning from petitioner’s
mother in New York, stating that the mother had assumed
and would continue to assume full responsibility for pro
viding her daughter all her decent needs as a respectable
member of the community in Mississippi or elsewhere. Re
spondent County Attorney nevertheless persisted in holding
and prosecuting petitioner on the entirely unfounded charge
of vagrancy (20a-21a).
Consequently, on January 5, 1965, in advance of her state
trial, petitioner filed by counsel a petition for writ of
habeas corpus, challenging the Mississippi vagrancy stat
ute on its face and as applied to her, as violative of her
federal rights of free speech, association and assembly, her
federal privilege to assist Negroes to register to vote in
federal elections, and her federal guarantee against harass
ment designed and effective to deter Negro voting regis
tration. She alleged that the prosecution was in further
ance of an official state-wide policy of discrimination against
8
Negroes and disfranchisement of Negroes by reason of
race (22a-24a). She further asserted that she had been ar
rested without probable cause and that she was being de
tained in a jail segregated by force of Mississippi statute
(23a). The United States District Court for the Northern
District of Mississippi denied the petition on its face on the
ground that petitioner had not exhausted her Mississippi
state remedies as required by Application of Wyckoff, 196 F.
Supp. 515 (S. D. Miss. 1961), 6 R ace Relations L. Rpte.
786, petition for immediate hearing and for leave to pro
ceed on original papers denied, id. at 793 (5th Cir. 1961),
petition for habeas corpus denied, id. at 794 (Circuit Jus
tice Black, with whom Mr. Justice Clark concurs, 1961);
and Brown v. Bayfield, 320 F. 2d 96 (5th Cir. 1963), cert,
denied, 375 U. S. 902 (1963) (la). In so holding, the court
rejected petitioner’s contention—the principal issue in this
case—that exhaustion of state remedies is not required
in petitioner’s circumstances.
January 5, 1965, the order denying the petition was
entered; District Judge Clayton granted petitioner’s appli
cation for a certificate of probable cause under 28 U. S. C.
§2253 (1958), and petitioner’s notice of appeal was filed.
January 22,1965 the Court of Appeals for the Fifth Circuit
granted petitioner’s motion for leave to docket the appeal
and proceed on verified copies of the papers comprising the
record below, and set the case specially for expedited hear
ing on typwritten briefs. Such briefs were filed and the case
was argued February 2,1965.3 August 16,1965, the order of
the District Court was affirmed by a panel of the Circuit
3 For the information of the Court, District Judge Clayton made
informal arrangements with the appellees for petitioner Hillegas’
release from physical confinement, and for the stay of her state
trial, pending the appellate proceedings in this ease. Nothing
of this appears in the record.
9
Court. The majority opinion, by Judge Jones joined by
District Judge Sheehy, held that the decisions in Wyckoff
and Brown v. Bayfield, supra, controlled this case (Opinion,
Appendix II infra, 2a). Judge Brown, concurring under
the compulsion of Brown v. Bayfield, pointed out that
Wyckoff was inapposite both to Brown v. Bayfield and to
the present case (6a-7a), noted that Brown v. Bayfield,
“the victim of inadequate presentation” (4a), incorrectly
followed Wyckoff, and, upon careful examination of statu
tory and judicial history first presented to a federal ap
pellate court in petitioner’s brief in the present ease (6a)
and upon analysis of decisions of this Court subsequent
to Brown v. B ay field (9a-lla), concluded that the latter
decision was wrong and should be overruled (4a, 11a).
Petitioner thereupon applied for rehearing en banc. Sep
tember 27, 1965, pursuant to Fifth Circuit practice, the
application was denied by the panel which had heard the
appeal.
Reasons for Granting the Writ
I.
The Case Presents an Important Issue Respecting the
Federal Judicial Power and Obligation to Protect Civil
Rights, Not Heretofore Decided by This Court.
This case raises a question of cardinal importance in
volving the relation of state and federal courts under the
Supremacy Clause of the Constitution and the national
habeas corpus jurisdiction created by Congress in 1867 and
now codified in 28 U. S. C. § 2241(c) (3) (1958). That ques
tion is whether a federal district court empowered to dis
charge state prisoners “in custody in violation of the Con
stitution or laws . . . of the United States,” ibid., can and
1 0
should decline to entertain, pending state court trials and
appeals, a factually detailed application for habeas corpus
by a prisoner who alleges that she is confined under mesne
process of a state criminal court in a prosecution which is
groundless because aimed at punishing conduct protected
by the First and Fourteenth Amendments, a prosecution
whose design and effect are to harass and intimidate the
prisoner and others similarly situated so as to repress their
exercise of federal freedoms of expression to encourage
Negro voter registration in a state which has unconstitu
tionally disfranchised the Negro.
A more important question can hardly be imagined. Upon
its correct disposition depends in large measure the power
and obligation of the federal district courts throughout the
country to protect individuals from state prosecutions which
are used as instruments to repress them and deprive them
of their federally guaranteed freedoms. Surely, as this
Court has recently recognized, “The assumption that de
fense of a criminal prosecution will generally assure ample
vindication of constitutional rights is unfounded in such
cases,” Dombrowski v. Pfister, 380 U. S. 479, 486 (1965);
prosecution is itself a potent weapon for the destruction of
constitutional liberties, cf. Dilworth v. Riner, 343 F. 2d 226,
231-232 (5th Cir. 1965); thus, reversal of a state criminal
conviction by the Supreme Court of the United States or a
post-conviction federal habeas corpus court comes after the
damage has been done. See Cox v. Louisiana, 348 F. 2d
750 (5th Cir. 1965). Amsterdam, Criminal Prosecutions
Affecting Federally Guaranteed Civil Rights: Federal
Removal and Habeas Corpus Jurisdiction to Abort State
Court Trial, 113 U. Pa. L. Eev. 793, 794-805, 828-842 (1965).
Due implementation of the Supremacy Clause requires
1 1
federal judicial intervention to terminate such state prose
cutions in their inception.
It is petitioner-appellant’s contention that the Congress
of the United States recognized this truth following the
Civil War, and, between 1866 and 1875, gave the federal
courts of first instance ample jurisdiction to do the job.
The three essential jurisdictional grants were the habeas
corpus statute of 1867 involved in the present case; the
civil rights removal statute of 1866, extended in 1875, now
28 U. S. C. § 1443 (1958), see Rachel v. Georgia, 342 F. 2d
336 (5th Cir. 1965) cert, granted October 11, 1965; and the
grant of civil rights equitable jurisdiction in 1871, now
28 U. S. C. § 1343 (1958).
Post-Reconstruction judicial decisions treated the three
jurisdictional grants with scant hospitality. Heedless of the
congressional design to employ federal judicial power for
the effective vindication of civil rights, this Court in Doug
las v. City of Jeannette, 319 U. S. 157 (1943), disallowed
federal injunction of state prosecutions which infringed
First Amendment freedoms. The Court had already given
a narrow reading to the civil rights removal statute in a
line of decisions from Virginia v. Rives, 100 U. 8. 313
(1880), to Kentucky v. Powers, 201 U. S. 1 (1906); and,
in the same spirit, had shackled the imperative process
of the federal writ of habeas corpus by the doctrine of
exhaustion of state remedies, invented out of whole cloth in
Ex parte Roy all, 117 U. S. 241 (1886). But these constrain
ing judicial inventions could withstand neither the scrutiny
of historical study directed to the purposes of the Recon
struction legislation nor the demands of a federalism char
acterized by national commitment to the protection of indi
vidual liberties. In Baggett v. Bullitt, 377 U. S. 360 (1964),
1 2
and Dombrowski v. Pfister, 380 U. S. 479 (1965), the Court
substantially repudiated the bases of Douglas v. City of
Jeannette; in Georgia v. Rachel, No. 147, it has granted
certiorari to reexamine the scope of the civil rights re
moval jurisdiction; and in Fay v. Noia, 372 U. S. 391, 416
(1963), it explicitly recognized the inconsistency of the
exhaustion doctrine, in at least some of its latter-day exten
sions, with the congressional intendment of the habeas
corpus jurisdiction.
The present proceeding was brought to test the applica
tion of the exhaustion doctrine to civil rights cases in light
of the historical insight of Fay v. Noia. No better case
for the purpose could be found. Under the allegations of
the petition, which the courts below accepted as true, peti
tioner is being prosecuted in a Mississippi state court for
conduct plainly protected by the First Amendment, the
design and effect of the prosecution being to harass and
intimidate her and others similarly situated so as to coerce
them to forego exercise of vital federal freedoms. Never
theless, the District Court and the Court of Appeals (one
judge disagreeing) denied relief on the sole ground of
failure to exhaust state remedies. An informal arrangement
by the District Judge stayed the state prosecution pending
appellate proceedings and thus guaranteed the appeal
against mootness4—a constant danger to federal appellate
review in this sort of pretrial habeas corpus proceeding.
(Needless to say, such arrangements will not likely be
made in the future should the Court decline to review the
present case.) Petitioner has presented to the Court of
Appeals, and will present to this Court, historical materials
not previously available and which are indispensable to a
See note 3 supra.
1 3
just appreciation of the congressionally intended scope and
function of federal habeas corpus. Moreover, the time is
now especially propitious for disposition of the exhaustion
question by this Court. The Court now has before it on
certiorari questions concerning the scope of the civil rights
removal jurisdiction; the removal legislation of 1866 and
the habeas corpus legislation of 1867 have a common history
and are intimately related parts of a federal judicial re
medial scheme. Full canvass of the issues concerning an
ticipatory federal jurisdiction in state criminal prosecutions
affecting civil rights, and an appropriate disposition of
those issues in view of the full range of alternative forms
of federal process, can be assured only if certiorari is
granted here and this case heard in conjunction with the
civil rights removal cases.
This Court has not discussed the application of the
doctrine of exhaustion of state remedies to a case in which
petition for federal habeas corpus was made prior to state
trial for almost sixty years, see United States ex rel. Drury
v. Lewis, 200 U. S. 1 (1906), and has never discussed the
application of the doctrine to a harassment prosecution
threatening First Amendment freedoms and the equal civil
rights of Negroes—prime concern of the Reconstruction
Congress which enacted the habeas corpus legislation. The
questions are pressing ones today; the implication of Fay
v. Noia for those questions is unclear; these considerations,
petitioner submits, make the present case an appropriate
one for the exercise of the Court’s certiorari jurisdiction.
1 4
II.
The Decision Below Is Wrong and Seriously Impairs
Federal Judicial Power to Protect National Civil Rights.
A.
Federal Habeas Corpus Courts Are Empowered to
Discharge From Mesne Restraints Petitioners Held to
Answer Unconstitutional State Prosecutions.
The national habeas corpus statute, 28 U. S. C. § 2241
(c)(3) (1958), authorizes federal courts to discharge on
habeas corpus state prisoners “in custody in violation of
the Constitution or laws . . . of the United States.” It is
well settled that the section empowers release before trial
of persons detained on state criminal charges which the
State cannot constitutionally apply to their conduct. Wild-
enhus’s Case, 120 U. S. 1 (1887); In re Loney, 134 U. S. 372
(1890); In re Neagle, 135 U. S. 1 (1890); Hunter v. Wood,
209 U. S. 205 (1908); Ex parte Boy all, 117 U. S. 241, 245-
250 (1886) (dictum); Cook v. Hart, 146 U. S. 183, 194-195
(1892) (dictum); Whitten v. Tomlinson, 160 U. S. 231, 241-
242 (1895) (dictum); Baker v. Grice, 169 U. S. 284, 290
(1898) (dictum); United States ex rel. Drury v. Lewis, 200
U. S. 1, 6-8 (1906) (dictum).
B.
Petitioner’s Prosecution Is Unconstitutional.
The state statute under which this petitioner is charged
cannot constitutionally be applied to petitioner’s conduct
for several reasons:
(1) If Miss. Code A n n . § 2666(c) (Recomp. Vol. 1956),
set out at p. 4 supra, makes it criminal to work in a
1 5
courthouse for COFO as a voter registration worker, receiv
ing from COFO adequate lodging and food and from peti
tioner’s parents all additional money required to meet peti
tioner’s needs (with assurance of further funds both from
COFO and from petitioner’s mother should they be needed),
then the statute abridges petitioner’s freedom of speech (see
Thomas v. Collins, 323 U. S. 516 (1945); Staub v. Baxley,
355 U. S. 313 (1958); N. A. A. C. P. v. Button, 371 U. S. 415
(1963); Brotherhood of Railroad Trainmen v. Virginia ex
rel. Virginia State Bar, 377 U. S. 1 (1964), holding that or
ganizational activity like petitioner’s is protected speech),
freedom to associate with COFO (see, e.g., N. A. A. C. P.
v. Alabama, 357 U. S. 449 (1958); Bates v. Little RocJc, 361
U. S. 516 (1960); Shelton v. Tucker, 364 U. S. 479 (1960);
Gibson v. Florida Legislative Investigating Committee, 372
U. S. 539 (1963), striking down lesser impediments than
absolute prohibition with respect to associations like
COFO), and freedom to assemble in the courthouse with
Negro voting registration applicants and other COFO
workers for the purpose of giving the applicants support
(this is a fortiori from Edivards v. South Carolina, 372
U. S. 229 (1963); Fields v. South Carolina, 375 TJ. S. 44
(1963); Henry v. Rock Hill, 376 IT. S. 776 (1964); Cox v.
Louisiana, 379 U. S. 536 (1965) ). It also abridges peti
tioner’s Fourteenth Amendment privilege to assist, en
courage and educate Negro citizens to register to vote in
federal elections (see Hague v. C. I. 0. 307 U. S. 496 (1939)
(opinion of Mr. Justice Eoberts)) and the Fourteenth
Amendment privilege of those Negroes to register to vote
in federal elections (cf. United States v. Classic, 313 U. S.
299 (1941)), as well as their Fifteenth Amendment free
dom to register to vote in all elections free of racial dis
crimination (cf. United States v. Raines, 362 U. S. 17
(I960)). If the statute does not apply to the state of facts
1 6
described in the first paragraph, then there is no factual
basis whatever for the charge against petitioner, and her
punishment under the statute deprives her of due process
of law for that reason. Thompson v. Louisville, 362 U. S.
199 (1960); Garner v. Louisiana, 370 U. S. 157 (1961);
Fields v. Fairfield, 375 U. S. 248 (1963); Barr v. Columbia,
378 U. S. 146 (1964).
(2) Application of the statute to petitioner is also pre
cluded because the design and effect of this prosecution is
to enforce a policy of racial discrimination by public of
ficials of the State of Mississippi in violation of the Four
teenth and Fifteenth Amendments and 42 U. S. C. A. § 1971
(1964); 42 U. S. C. §§ 1983, 1985 (1958). See Dombrow-
ski v. Pfister, 380 U. S. 479 (1965). It is immaterial
that the policy is not expressed in Miss. Code Auk. § 2666
(c) (Recomp. Vol. 1956) itself. See Peterson v. Greenville,
373 U. S. 244 (1963); Lombard v. Louisiana, 373 U. S. 267
(1963); Robinson v. Florida, 378 U. S. 153 (1964). The
policy pervades Mississippi’s statute books as well as its
public life. See, e.g., Miss. Const., art. 8, §§ 201, 205, 207;
art. 10, §225; art. 12, §§ 241-A, 244; Miss. Code An n .
§§ 2056(7), 2339, 4065.3 (Recomp. Vols. 1956); Miss. Laws,
1st Extra. Sess. 1962, chs. 4, 9, 16, 20.
(3) Finally, Miss. Code An n . § 2666(c) (Recomp. Vol.
1956) is on its face void for vagueness in that it makes
criminality of a salaried person turn on whether the salary
amounts to “reasonable compensation.” See cases cited in
Note, 109 U. Pa. L. R ev. 67, 92-93 (1960), particularly
United States v. L. Cohen Grocery Co., 255 U. S. 81 (1921),
and Cline v. Frink Dairy Co., 274 U. S. 445 (1927). Such
indefiniteness in a criminal statute is unallowable under
1 7
the Fourteenth Amendment, at least where greater defi
niteness is practicable (as it obviously is here: compare
the provision of § 2666(c) applicable to persons having an
income from property or investment, which requires that
the income be “sufficient for . . . support and maintenance”).
The limited inroad into Cohen made by United States v.
National Dairy Prods. Co., 372 U. S. 29 (1963), expressly
distinguishing Cohen, 372 U. S. at 36, does not save the
statute, since it operates in the First Amendment area,
see, e.g., N. A. A. C. P. v. Button, 371 IJ. S. 415 (1963);
Wright v. Georgia, 373 U. S. 284 (1963); Bouie v. Columbia,
378 U. S. 347 (1964).
C.
A Federal Habeas Corpus Applicant in Petitioner’s
Situation Is Not Required to Exhaust State Judicial
Remedies.
Since petitioner is thus in custody in violation of the Con
stitution, the only obstacle to her release on habeas corpus
in advance of state trial is the doctrine of exhaustion of
state remedies. Petitioner has not, and contends she need
not, exhaust Mississippi state remedies on the facts of this
case; the District Court and the Fifth Circuit held that
Application of Wyckoff and Brown v. Ray field5 6 obliged her
to do so. Plainly, the evolution of the exhaustion doctrine
5 Application of Wyckoff, 196 F. Supp. 515 (S. D. Miss. 1961),
6 Race Relations L. Rptr. 786, petition for immediate hearing
and for leave to proceed on original papers denied, id. at 793 (5th
Cir. 1961), petition for habeas corpus denied, id. at 794 (Circuit
Justice Black, with whom Mr. Justice Clark concurs); Brown v.
Rayfield, 320 F. 2d 96 (5th Cir. 1963), cert, denied, 375 U. S. 902
(1963).
18
by the Fifth Circuit, from Wychoff to Brown v. Bayfield
to the present case,6 carries the doctrine far beyond any
of this Court’s decisions, and abuts at a result which en
tirely perverts the habeas corpus legislation enacted by
Congress.
(1) Wychoff, Brown v. Bayfield and 28 U. S. C. § 2254.
In Wychoff the petitioner, a freedom rider, was convicted
by an Ex Officio Justice of the Peace of Hinds County, Mis
sissippi, of breach of the peace (congregating with others
with intent to provoke a breach of the peace and refusing
to move on at the lawful order of a peace officer), arising
out of her attempt, with other freedom riders, to integrate
the bus terminal waiting room in Jackson. She was sen
tenced to $200 fine and two months imprisonment, the im
prisonment sentence suspended. Under Mississippi law,
her conviction could be appealed for trial de novo before a
jury in the County Court, and from conviction by the
County Court an appeal lay to the Circuit Court, thence
to the Supreme Court of Mississippi. Mississippi statutes
allowed the appeals without cost or bond on proper filing of
a pauper’s oath. Petitioner, who was represented by re
tained counsel at the justice’s trial, did not appeal. Within
the period for appeal she filed a federal habeas corpus peti
tion, asserting that the conduct for which she had been
convicted was protected, inter alia, by the First and Four
teenth Amendments, that the prosecution was brought to
enforce racial segregation in violation of the Equal Protec- 6
6 The present ease involves an extension of the exhaustion re
quirement beyond that imposed in Wychoff and Brown v. Bayfield,
for the reasons set out at pp. 53-57 infra.
1 9
tion Clause of the Fourteenth Amendment, and that she had
been denied a federally guaranteed right of jury trial in
the justice court. She further alleged that she was unable to
bear the cost of taking state appeals. The respondent’s
return denied that the purpose of the prosecution was to
enforce racial segregation, alleged that the trial and con
viction were fair and regular, and asserted that state rem
edies were not exhausted as required by 28 U. S. C. § 2254
(1958). After hearing, the district court denied the petition
on the ground of failure to exhaust state remedies, holding
that the record in the justice court showed that petitioner
had waived jury trial, pointing out that petitioner still had
an available appeal for trial de novo in the County Court,
and noting that Mississippi provided a pauper’s procedure
for taking the appeal and that petitioner was represented by
able counsel. Because the respondent’s return had denied
that the prosecution was designed to enforce unconstitu
tional segregation and petitioner had offered no evidence in
support of her allegations to this effect, the district court
took petitioner’s claims in this respect as unproved. Peti
tioner noted an appeal and asked the Fifth Circuit for
leave to proceed on the original papers and for an imme
diate hearing. The court denied both motions, agreeing
with the district court that petitioner had failed to exhaust
state remedies under 28 U. 8. C. § 2254.
In Brown v. Bayfield, the two habeas petitioners were
arrested while walking in tandem, in an orderly fashion,
with four other individuals, on a street in Jackson, Missis
sippi, carrying an American flag and a placard protesting
racial discrimination. Charged with violation of a Jackson
ordinance prohibiting parading without a license, they were
entitled to trial in a justice court and thereafter to appeals
2 0
as in Wyckoff. Apparently prior to their justice trial,7
they petitioned for federal habeas corpus, asserting that
the conduct for which they were charged could not con
sistently with the First and Fourteenth Amendments be
punished by the State. Petitioners undertook to state a case
of “circumstances rendering [state remedies] . . . ineffec
tive to protect [their] . . . rights” within 28 U. S. C. § 2254
by allegations (a) that all Mississippi public officials were
committed to a policy of racial discrimination, as demon
strated by Mississippi’s massive resistance legislation; (b)
that judges of the various state courts (all elected officials)
gave tacit if not open support to the discriminatory policy
in their election campaigns, and that the policy was reflected
in their judicial decisions and opinions; and (c) that, by
reason of the congestion of civil rights cases in the Missis
sippi courts, and delays compelled by Mississippi trial and
appellate procedures, the June 1961 freedom rider cases
had not yet been disposed of by the Mississippi Supreme
Court in the summer of 1963, and a like or greater delay
was in prospect for the petitioners. The return denied that
the Mississippi courts would not fairly protect petitioners’
federal rights, and asserted that § 2254 precluded enter
taining the petitions. The district court denied relief on
this ground; pending appeal the petitioners posted bond
and were released from ja il; the Fifth Circuit, relying on the
Wychoff decision, dismissed the appeals for insubstantiality
on the merits.
7 The Fifth Circuit opinion in Brown v. Bayfield does not make
clear whether the federal habeas corpus application in that case
was filed prior to or after the justice tria l; language in the opinion
suggests the latter. However, Judge Brown’s concurring opinion
in the present case, based upon examination of the Brown v.
Bayfield record, indicates that Brown was a pretrial habeas case.
2 1
Any evaluation of Brown v. Bayfield must begin with the
observation that the court there quite erroneously supposed
the case was governed by 28 U. S. C. § 2254. That statute
has no application whatever to federal habeas corpus pe
titions filed in advance of a state court trial. The section
applies only to “a person in custody pursuant to the judg
ment of a State court,” and the legislative history makes
clear what in any event would be apparent (e.g., by com
parison of this language with that of 28 U. S. C. § 2253
(1958)): that the phrase “judgment of a State court” was
chosen to cover post-conviction habeas cases and to exclude
cases in which federal habeas corpus was sought prior to
state trial. The original section in the House bill which
became the 1948 Judicial Code required exhaustion of avail
able state remedies by a habeas petitioner who was “in
custody pursuant to the judgment of a State court or au
thority of a State officer.” See H. E. 3214, 80th Cong.,
§ 2254. The Senate Committee on the Judiciary rewrote the
section to make several changes, among them omission of
the phrase “or authority of a State officer.” The committee
report explains the purpose of the change to “ . . . eliminate
from the prohibition of the section applications on behalf
of prisoners in custody under authority of a State officer
but whose custody has not been directed by the judgment
of a State court. If the section were applied to applica
tions by persons detained solely under authority of a State
officer it would unduly hamper Federal courts in the pro
tection of Federal officers prosecuted for acts committed
in the course of official duty.” Sen. Eep. No. 1559, 80th
Cong., 2d Sess. 9 (1948). Moreover, the origins of this 1948
statute, disclosing the concerns to which it responded,
make patent that § 2254 has not even analogical significance
in pretrial habeas cases. See Amsterdam, Criminal Prose
2 2
cutions Affecting Federally Guaranteed Civil Rights: Fed
eral Removal and Habeas Corpus Jurisdiction to Abort
State Court Trial, 113 U. Pa. L. Rev. 793, 890 n. 415, 902-
903 (1965). Accepting arguendo the decision in Wyckoff
that § 2254 applies to a prisoner confined under a justice
court conviction notwithstanding state law gives him a
right of trial de novo in a court of record, the statute
plainly had no application to the pre-justice-trial petition
filed in Brown v. Rayfield and the present case.
Of course, § 2254 is merely a partial codification of the
doctrine of exhaustion of state remedies, which was judi
cially developed in and following Ex parte Roy all, 117 U. S.
241 (1886), and which, as a flexible judicial doctrine of
comity, does apply to pretrial federal habeas petitions. See
in addition to Royall, e.g., Cook v. Hart, 146 U. S. 183
(1892); New Tori v. Eno, 155 U. S. 89 (1894); Whitten v.
Tomlinson, 160 U. S. 231 (1895); Moss v. Glenn, 189 U. S.
506 (1903); United States ex rel. Drury v. Lewis, 200 U. S.
1 (1906). The origin and scope of that judicially developed
doctrine in relation to the function of federal habeas corpus
in civil rights cases is considered in the ensuing sections
of this petition; for present purposes it is sufficient to
note that the doctrine is a judicial creature, unfettered
by statute against judicial evolution, and which “prescribes
only what should ‘ordinarily’ be the proper procedure; all
the cited cases from Ex parte Royall to [Ex parte] Hawk
[321 U. S. 114 (1944)] recognize that much cannot be fore
seen, and that ‘special circumstances’ justify departure
from rules designed to regulate the usual case. The excep
tions are few but they exist. Other situations may de
velop. . . . ” Darr v. Bur ford, 339 U. S. 200, 210 (1950)
(dictum). See, e.g., the authorities cited at p. 14, supra.
23
To determine the appropriate application of the judicial
doctrine to such cases as the present one and Brown v.
Bayfield, it will be necessary to canvass the statutory his
tory of federal habeas corpus jurisdiction and the evolu
tion of the court-made exhaustion requirement in relation
to it. From such a survey the conclusion clearly emerges
that federal habeas corpus is immediately available to one
in petitioner’s circumstances.
(2) Legislative history.
Habits of thought generated by three quarters of a cen
tury of application of the exhaustion doctrine tend to make
American courts and lawyers today think of federal habeas
corpus almost exclusively as a post-conviction remedy. But
the nineteenth century Congresses which expanded the
habeas corpus jurisdiction to its present scope8 thought in
no such terms. Prior to the twentieth century, post-convic
tion use of the writ was rare though not unknown;9 the
English courts had more frequently used the writ in its
various forms “for removing prisoners from one court
8 The present federal habeas corpus jurisdiction described in
28 U. S. C. § 2241 (1958), is the product of statutes of 1789,
1833, 1842 and 1867. Act of September 24, 1789, ch. 20, § 14,
1 Stat. 73, 81-82; Act of March 2, 1833, ch. 57, 4 Stat. 632; Act
of August 29, 1842, ch. 257, 5 Stat. 539-540; Act of February 5,
1867, ch. 28, 14 Stat. 385. Each succeeding statute added to the
previously given grant of habeas power. The four grants were
consolidated without substantial change in Rev. Stat. §§ 751-753,
which remained in force without significant modification until the
1948 revision of Title 28, U. S. C. That revision produced present
§ 2241, whose “changes in phraseology” were not designed to affect
substantive change. See Revisor’s Note to 28 U. S. C. § 2241 (1958).
9 Examination of the texts clearly indicates that in England
the writ was most commonly used, and thought of, as pretrial,
not post-conviction, process. E.g., 3 Comyns. Digest of the Laws
of England 454-455 (1785); 2 Hale, Pleas of the Crown 143-
2 4
into another, for the more easy administration of justice” ;* 4 * * * * * 10 11
common-law habeas corpus ad subjiciendum developed
principally as a remedy against executive detention with
out, or prior to, judicial trial ;1] and the great Habeas Corpus
Act of 1679, 31 Charles II, ch. 2, as Blackstone noted, ex
tended by its terms “only to the case of commitments for
such criminal charge, as can produce no inconvenience to
public justice by a temporary enlargement of the prisoner;
all other cases of unjust imprisonment being left to the
148, 210-211 (1st American ed., Philadelphia, 1847); IV Bacon’s
Abridgment 563-605, Habeas Corpus (Philadelphia 1844). One
of the relatively infrequent instances of its post-conviction use
is the celebrated Bushell’s case, Vaughan, 135, 6 How. St. Tr. 999,
124 Eng. Rep. 1006 (1670), discharging petitioners from a con
tempt commitment. Several of the precedents cited in Bushell’s
case involve similar summary commitment. In this country, the
Supreme Court of the United States early employed the federal
writ in behalf of persons committed for trial, to release them
on bail, United States v. Hamilton, 3 Dali. 17 (U. S. 1795), or
to discharge them for want of probable cause, Ex parte Bollman,
4 Cranch 75 (1807) ; but in Ex parte Watkins, 3 Pet. 193 (1830),
the Court held that where the respondent’s return to the writ
showed that the petitioner was held by virtue of the judgment
of a court having jurisdiction, the inquiry on habeas corpus ended
and no reexamination would be made of the lawfulness of the
judgment. Watkins thus restricted post-conviction use of habeas
corpus to a very narrow compass; it was only with Ex parte Lange,
18 Wall. 163 (1873), that expansion began via the “jurisdictional”
fiction, and only with Johnson v. Zerbst, 304 U. S. 458 (1938)
that federal habeas emerged from the fiction in its modern role
as a post-conviction remedy. See note 14 infra. The state courts,
too, generally disallowed postconviction use of the writ prior to
the twentieth century. See cases collected in Thompson, Abuses
of the Writ of Habeas Corpus, 18 A m . L. Rev. 1, 17-18 n. 1 (1884).
See also Oaks, Habeas Corpus in the States, 32 U. Ch i L R ev 243
258-264 (1965).
10 3 Blackstone Commentaries 129 (6th ed., Dublin 1775).
Blackstone here refers to forms of the writ other than habeas
corpus ad subjiciendum.
11 See 9 Holdswoeth, A History of English Law 111-119
(1926).
25
habeas corpus at common law.” 12 Consistently with this
background, the several congressional statutes extending
federal habeas corpus to state prisoners13 were clearly de
signed, in the classes of cases with which each was princi
pally concerned, to give prisoners held by state authorities
in advance of state court proceedings an immediate federal
judicial proceeding to secure their release.14 The history of
the first two of these enactments, in 1833 and 1842, was
carefully examined in In re Neagle, 135 U. S. 1, 70-75
(1890), and the conclusion drawn that their whole purpose
was to allow federal judicial intervention into the state
criminal process before state court trial. Indeed, no other
conclusion is possible. The Force Act of March 2, 1833,
ch. 57, 4 Stat. 632, was Congress’ response to John C. Cal
houn and his threat to take South Carolina out of the Union
12 3 Blackstone, supra note 10, at 137. For the history of the act
see 9 Holdswokth, supra note 11, at 115-119; Chafee, How Hu
man Eights Got Into the Constitution 51-64 (1952).
18 The habeas corpus jurisdiction given by the First Judiciary Act
by its express terms did not extend to state prisoners except where
they were “necessary to be brought into court to testify.” Act of
September 24, 1789, ch. 20, § 14, 1 Stat. 73, 81-82.
14 The conclusion in note 9 supra that development of federal
habeas corpus as a post-conviction remedy may be dated at the
earliest from 1873 and is largely a twentieth century phenomenon
is supported by all commentators. See, e.g., Fay v. Noia, 372 U. S.
391 (1963) ; Note, The Freedom Writ—The Expanding Use of
Federal Habeas Corpus, 61 Habv. L. Eev. 657 (1948); Hart,
Foreword, The Supreme Court, 1958 Term, 73 Habv. L. Eev. 84,
101-121 (1959); Reitz, Federal Habeas Corpus: Postconviction
Remedy for State Prisoners, 108 U. Pa. L. Eev. 461 (1960) ; Reitz,
Federal Habeas Corpus: Impact of an Abortive Stale Proceeding,
74 Harv. L. Eev. 1315 (1961) ; Brennan, Federal Habeas Corpus
and State Prisoners: An Exercise in Federalism, 7 Utah L. Eev.
423 (1961) ; Bator, Finality in Criminal Law and Federal Habeas
Corpus for State Prisoners, 76 Harv. L. Eev. 441 (1963) ; Note,
Federal Habeas Corpus for State Prisoners: The Isolation Prin
ciple, 39 N. Y. U. L. Rev. 78 (1964).
2 6
in resistance to the Tariff. See 1 Morison & Commager,
Growth of the A merican R epublic 475-485 (4th ed. 1950);
Fay v. Noia, 372 U. S. 391, 401 n. 9 (1963). The Nullifica
tion Ordinance was an open denial of federal supremacy,
and it was “apparent that the constitution of the courts in
South Carolina makes it necessary to give the revenue offi
cers the right to sue in the federal courts.” Cong. Debates,
vol. 9, pt. 1, 260 (Mr. Wilkins, who reported the bill and
was its floor manager in the Senate, id. at 150 (1/21/33),
246 (1/28/33, 1/29/33)); see also Mr. Frelinghuysen’s re
marks, id. at 329-332 (2/2/33). Hence Congress responded
by extending the civil jurisdiction of the federal courts to
all cases arising under the revenue laws (§ 2), by authoriz
ing removal of civil and criminal cases against federal
revenue officers (§ 3), and by giving the federal courts and
judges habeas corpus power to discharge from state custody
all persons “in jail or confinement, where he or they shall
be committed or confined on, or by any authority or law,
for any act done, or omitted to be done, in pursuance of a
law of the United States, or any order, process, or decree,
of any judge or court thereof. . . . ” (§ 7, 4 Stat. 634). The
clear purpose of these provisions as a lot was wdiolly to
supersede state court jurisdiction in cases affecting the
tariff and to give the federal courts power immediately and
effectively to enforce the tariff against concerted state re
sistance, including state judicial resistance. Similarly, the
Act of August 29, 1842, ch. 257, 5 Stat. 539-540, was de
signed to cope with the problem of the famous McLeod
case, in which the New York courts nearly touched off a
major international incident by refusing to relinquish juris
diction over a British subject held for murder, who claimed
that the acts with which he was charged were done under
27
authority of the British government. People v. McLeod,
25 Wend. 482 (Sup. Ct. N. Y. 1841). McLeod was acquitted
at his trial, but the need for an expeditious federal remedy
to abort the state court process in such eases was strongly
felt, and the 1842 statute was its product. See the speech
of Mr. Berrien, who introduced the Senate bill, Cong.,
Globe, 27th Cong., 2d Sess. 444 (4/26/42), quoted in Neagle,
135 II. S. at 71-72.
Thus the thirty-ninth Congress, which in 1867 further
extended the federal habeas corpus jurisdiction to “all cases
where any person may be restrained of his or her liberty
in violation of the constitution, or of any treaty or law of
the United States,” acted against a background of legisla
tive practice which had previously employed the federal
writ to discharge individuals held for state trial, in advance
of that trial, in cases where their detention for subjection
to the state criminal process was itself destructive of fed
eral interests that the state judicial proceedings could not
be expected to vindicate. The Act of February 5, 1867, ch.
28, 14 Stat. 385, predecessor of the present 28 U. S. C.
§ 2241(c) (3) (1958), was Reconstruction legislation. Its
first section granted new habeas corpus power in the lan
guage quoted above, made elaborate provision for sum
mary hearing and summary disposition by the federal
judges, and provided that :
“ . . . pending such proceedings or appeal, and until
final judgment be rendered therein, and after final
judgment of discharge in the same, any proceeding
against such person so alleged to be restrained of his
or her liberty in any State court, or by or under the
authority of any State, for any matter or thing so
heard and determined, under and by virtue of such
2 8
writ of habeas corpus, shall be deemed null and void/’
§ 1, 14 Stat. 386.15 16
Its second section gave another and different remedy to
state criminal defendants having federal constitutional de
fenses : review of the highest state court judgment by the
Supreme Court of the United States on writ of error. 14
Stat. 386-387. In view of the juxtaposition of these reme
dies, the provisions expressly recognizing that federal
habeas corpus courts would anticipate and forestall state
judicial processes, and the pre-1867 usage with the writ,
one need hardly plumb the legislative debates to conclude,
as this Court recently has concluded, that: “Congress
seems to have had no thought . . . that a state prisoner
should abide state court determination of his constitutional
defense—the neeessary predicate of direct review by [the
Supreme Court] . . .—before resorting to federal habeas
corpus. Rather, a remedy almost in the nature of removal
from the state to the federal courts of state prisoners’ con
stitutional contentions seems to have been envisaged.” Fay
v. Noia, 372 U. S. 391, 416 (1963). The legislative materials,
moreover, are eloquent on the point.
The genesis of the statute was a resolution offered by
Representative Shellabarger shortly after the convening
of the Congress in December, 1865 and immediately agreed
to by the House, Cong. Globe, 39th Cong., 1st Sess. 87
(12/19/65): “Resolved, That the Committee on the Judi
ciary be directed to inquire and report to this House, as
soon as practicable, by bill or otherwise, what legislation
is necessary to enable the courts of the United States to en
15 The successor of this provision is present 28 U. S. C. § 2251
(1958), under which petitioner herein has moved for a stay of
state proceedings.
2 9
force the freedom of the wives and soldiers of the United
States under the joint resolution of Congress of March 3,
1865, and also to enforce the liberty of all persons under
the operation of the constitutional amendment abolishing
slavery.” There is no pertinent “joint resolution” of “March
3, 1865,” and the evidence is persuasive that the “March 3”
action intended by the reference is the Act of March 3,
1863, ch. 81, 12 Stat. 755, a statute protecting Union offi
cers and other persons from civil or criminal liability
for acts or omissions during the rebellion under Presiden
tial order or law of Congress, and authorizing removal
from the state to federal courts of civil or criminal actions
against such persons.16 That this was Shellabarger’s refer
ence appears from the House Judiciary Committee’s sub
sequent reporting of a bill17 which became the Act of May
11, 1866, eh. 80, 14 Stat. 46, substantially amending the
16 Bator, Finality in Criminal Law and Federal Habeas Corpus
for State Prisoners, 76 Harv. L. Rev. 441, 476 n. 80 (1963), reaches
this conclusion. March 3, 1865 was the date of House concurrence
in a Senate concurrent resolution requesting the President to
transmit the proposed Thirteenth Amendment to the state execu
tives, Cong. Globe, 38th Cong., 2d Sess. 1416 (3/3/65), but Shella-
barger could not have meant to refer to this resolution, which had
no substantive import. March 3, 1865 was also the date of enact
ment of the Preedmen’s Bureau Act, ch. 90, 13 Stat. 507, but
matters involving implementation of that act would doubtless have
been referred to the House Select Committee on Freedmen, estab
lished by resolution, Cong. Globe, 39th Cong., 1st Sess. 14
(12/6/65), and which reported, for example, the Amendatory
Freedmen’s Bureau Act of July 16, 1866, ch. 200, 14 Stat. 173.
See Cong. Globe, 39th Cong., 1st Sess, 2743 (5/22/66).
17 The bill was apparently numbered II. K. 238 of the 39th Con
gress, although some pages of the Globe refer to it as H. E. 298.
It was the product of a House Judiciary Committee amendment in
the nature of a substitute to a bill introduced by Representative
Welker. Introduced at Cong. Globe, 39th Cong., 1st Sess. 196
(1/11/66) ; reported, id. at 1368 (3/13/66); taken up, id. at 1387
(3/14/66).
3 0
removal procedures of the 1863 act to prevent their obstruc
tion by the state courts,18 an act which in turn was amended
by the Act of February 5, 1867, ch. 27, 14 Stat. 385, au
thorizing the issuance of writs of habeas corpus cum causa
by the federal courts to bring before them the bodies of
defendants whose cases had been removed from the state
courts under the 1863 removal provisions.19 On March 15,
1866, in debate on the bill which became the May 11 act,
Shellabarger returned to what appears the theme first
sounded in his resolution of the preceding December:
“Mr. Shellabaegek. I wish to inquire of some mem
ber of the Judiciary Committee whether they intend
by this bill, or any other which they may have in
18 See id. at 1387-1388 (Cook, who reported the bill, id. at 1368
(3/13/66), and was its floor manager, id. at 1387 (3/14/66), in
the House, 3/14/66) ; 2054 (Clark, who reported the bill, id. at
1753 (4/4/66), and was its floor manager, id. at 1880 (4/11/66)
in the Senate, 4/20/66).
19 The act was reported by the Judiciary Committee in each
house. Id. at 4096 (7/24/66) (House), 4116 (7/24/66) (Senate).
Its purpose was to take from state custody defendants whose cases
had been removed into the federal courts, id. at 4096 (7/24/66)
(Wilson, who reported the bill and was its floor manager, Hid.,
in the House); Cong. Globe, 39th Cong., 2d Sess. 729 (1/25/67)
(Trumbull, chairman of the Judiciary Committee, who reported
the bill, Cong. Globe, 39th Cong., 2d Sess. 729 (1/25/67) in the
Senate), and thereby to permit the federal court to determine the
validity of the defendant’s detention under the arrest, ibid.
(Johnson, in the Senate). Together with the Act of May 11, see
supra, text at note 18, and the habeas corpus statute, this enact
ment evidences congressional concern to provide speedy and effi
cient federal judicial remedies for state court defendants. Con
temporaneously with these three bills, the bill which was to
become the First Civil Rights Act of April 9, 1866, ch. 31, 14 Stat.
27, -was being processed through Congress. Section 3 of the act as
enacted created the civil rights removal jurisdiction now found in
28 U. S. C. § 1443(2) (1958), and adopted the procedures of the
1863 removal sections with “all acts amendatory thereof.” 14 Stat.
27.
31
preparation, to provide for such eases as one which I
am about to describe, a case which came to my bn owl -
edge about the time of the convening of this Congress,
and which I now state in order to attract to it the at
tention of the committee, as it is one of a very large
class of similar cases.
“In Grant County, I believe, in the State of Ken
tucky, a provost marshal of the United States ordered
certain citizens to take to the jail of that county two
persons who were arrested and held as notorious guer
rillas. While executing this order the persons in charge
of these guerrillas, in order to prevent their attempted
escape, were obliged to fire at them; and by that
volley one of the guerrillas was killed and the other
wounded. The persons who took part in that transac
tion have been indicted by the grand jury of the county
for murder in the first degree; and one or two of them,
in order to avoid trial and the conviction which they
regarded as inevitable in that county, have been com
pelled to escape from the State.” Cong. Globe, 39th
Cong., 1st Sess. 1426 (3/15/66).
On July 25,1866 Mr. Lawrence of Ohio reported from the
House Judiciary Committee the bill which was subsequently
to be enacted as the habeas corpus statute, ch. 28, of Febru
ary 5, 1867. Questioned concerning a passage in the bill
which excluded from its operation certain military prison
ers, he said:
“Mr. L awrence, of Ohio. I will explain. On the 19th
of December last, my colleague [Mr. Shellabargeb]
introduced a resolution instructing the Judiciary Com
mittee to inquire and report to the House as soon as
practicable, by bill or otherwise, what legislation is
32
necessary to enable the courts of the United States to
enforce the freedom of the wife and children of soldiers
of the United States, and also to enforce the liberty
of all persons. Judge Ballard, of the district court of
Kentucky, decided that there was no act of Congress
giving courts of the United States jurisdiction to en
force the rights and liberties of such persons. In pur
suance of that resolution of my colleague this bill has
been introduced, the effect of which is to enlarge the
privilege of the writ of hobeas [sic] corpus, and to
make the jurisdiction of the courts and judges of the
United States coextensive with all the powers that
can be conferred upon them. It is a bill of the largest
liberty, and does not interfere with persons in mili
tary custody, or restrain the writ of habeas corpus
at all. I am satisfied there will not be a solitary ob
jection to this bill if it is understood by the House.”
Cong. Globe, 39th Cong., 1st Sess. 4151 (7/25/66).
The bill passed the House without further explanation.
Ibid. In the Senate, it was reported by Lyman Trumbull
of Illinois, chairman of the Judiciary Committee, id. at 4228
(7/27/66). As in the House, the question was raised of the
bill’s exception of military prisoners from its scope, id.
at 4229 (7/27/66) (Senator Davis of Kentucky), and Sena
tor Trumbull replied:
“ . . . I will state to the Senator from Kentucky
which he is probably aware of, that the habeas corpus
act of 1789, to which this bill is an amendment, confines
the jurisdiction of the United States courts in issuing
writs of habeas corpus to persons who are held under
United States laws. Now, a person might be held
3 3
under a State law in violation of the Constitution and
laws of the United States, and he ought to have in such
a case the benefit of the writ, and we agree that he
. ought to have recourse to United States courts to show
that he was illegally imprisoned in violation of the
Constitution or laws of the United States.” Ibid.
This was the only discussion of the bill’s substance in the
upper house. The Senate passed it with a procedural
amendment in which the House concurred without debate.20
Floor discussion of the act of 1867 was thus quite limited.
But its proponents told the Congress all that seemed neces
sary when they explained its purpose to give “recourse
to the United States courts” (Senator Trumbull, supra) in
cases of federally illegal detention, and to expand the habeas
corpus jurisdiction to its constitutional limits (Representa
tive Lawrence, supra). There was no need to rehearse
again the many reasons why the state courts could not be
entrusted to enforce federal rights, or the many needs for
a supervening, imperative federal judicial remedy. Those
matters had recently been debated extensively in considera
tion of the Act of May 11, 1866, supra. The condition of
affairs in the state courts was well known. “Now, it so
happens, as the rebellion is passing away, as the rebel
soldiers and officers are returning to their homes, that I
may say thousands of suits are springing up all through
the land, especially where the rebellion prevailed, against
20 To meet Senator Johnson’s concern over the absence of terri
torial limitations on the power of the federal judges to issue habeas
corpus, see Cong. Globe, 39th Cong., 2d Sess. 730 (1/25/67), the
bill was amended to restrict the habeas grant to the courts and
judges “within their respective jurisdictions.” Id. at 790 (1/28/67).
It was so passed by the Senate, ibid., and the House concurred in
the amendment without debate, id. at 899 (1/31/67).
3 4
the loyal men of the country who endeavored to put the
rebellion down.” 21 “ [Sjuits are springing up from one
end to the other; and these rebel courts are ready to de
cide against your Union men and acquit the rebel soldier.” 22
“A great many vexatious suits have been brought, and they
are still pending, and instances have been known—they
exist now—where Federal officers have been pushed very
hard and put to great hardships and expense, and sometimes
convicted of crime, for doing things which were right in the
line of duty, and which they were ordered to do and which
they could not refuse to do.” 23 In Kentucky, “They are
21 Cong. Globe, 39th Cong., 1st Sess. 2021 (Clerk in the Senate,
4/18/66). The excerpts of debate cited in this and succeeding
notes 22-28 are on consideration of the Act of May 11, 1866, supra.
Senator Clark reported and managed the bill which became the
act. Note 18 supra.
The oppressive volume of state litigation against Union men was
frequently noted in debate. E.g., Cong. Globe, 39th Cong., 1st
Sess. at 1880 (Clark in the Senate, 4/11/66), 1983 (Trumbull,
chairman of the Judiciary Committee, in the Senate, 4/17/66). It
was that there were over 3000 cases pending in Kentucky alone.
Id. at 1526, 1529 (McKee, of Kentucky, in the House, 3/20/66),
1983 (Clark in the Senate, 4/17/66), 2021 (Clark in the Senate,
4/18/66), 2054 (Wilson in the Senate, 4/20/66).
22 Id. at 2021 (Clark in the Senate, 4/18/66).
28 Id. at 1880 (Clark in the Senate, 4/11/66). Recognition that
the cost of defending suits and prosecutions might itself be ruinous
to defendant Union men found strong expression in the comments
of Senators Edmunds, id. at 2063-2064, and Howe, id. at 2064
(4/20/66), in debate of an amendment offered by Edmunds pro
viding that the Secretary of War should defend all actions within
the scope of the bill at government expense, and should indemnify
the individual defendant for damages, costs, fines and expenses.
The amendment, and one proposed by Howe providing for govern
ment defense of removed actions, were defeated on the ground
that they would overburden the government’s financial resources,
encourage litigation, encourage collusive actions, result in larger
jury verdicts in damage actions, and that defendants could be
adequately protected by private indemnifying bills. See id. at
2064-2066 (4/20/66). Apart from questions of expense, the injury
35
harassing, annoying, and even driving ont of the State
the men who stood true to the flag by suits under the legis
lation and judiciary rulings of Kentucky. There no protec-
to state-court defendants of delay in the vindication of their federal
rights was pointed up by the debate between Senators Doolittle
and Hendricks, who opposed the provision making state judges
civilly liable for proceeding after removal of a case to the federal
court, and Senators Stewart and Clark, who supported it. Senator
Doolittle said that it should not be presumed state judges would
flout the federal removal statute. [In fact, state courts had re
peatedly obstructed removal by refusing to approve removal bonds,
by refusing to transmit the state record to the federal court, and
by proceeding against defendants notwithstanding removal, holding
the removal statute unconstitutional. See references in note 18,
supra.] Senator Stewart asked, in effect, what relief there was
for an indicted defendant if the state court did flout removal,
pointing out that a state judge could force an indictment to trial
even without the cooperation of the state prosecutor. Senator
Hendricks replied that the defendant’s remedy was by appeal
through the higher state courts to the Supreme Court of the United
States. Senator Stewart rejoined: “But suppose the judge goes on
and convicts the man and sends him to the penitentiary, he must
lie there until the case can be heard in the Supreme Court, three
or four years hence.” Senator Doolittle thought it sufficient pro
tection to the defendant that federal law forbid the state jail
authorities to detain the defendant in such a ease, and make them
civilly liable if they do. Senator Stewart pointed out that the state
judge had strong coercive powers over state officers, and Senator
Clark closed the debate:
“Mr. Clark. I desire to make but one suggestion in answer
to the Senator from Wisconsin, and that is one of fact. He says
if it were necessary that these judges should be proceeded
against he would not object. I hold in my hand a communica
tion from a member of the other House from Kentucky, in
which he says that all the judicial districts of Kentucky, with
the exception of one, are in the hands of sympathizing judges.
They entirely disregard the [removal] act to which this is an
amendment. They refuse to allow the transfer, and proceed
against these men as if nothing had taken place. Here is not
the assumption that these judges will not do this; here is the
fact that they do not do it, and it is necessary that these men
should be protected.” Id. at 2063 (4/20/66).
Senators Stewart and Clark prevailed in the vote on an amendment
seeking to strike the provision making the state judges liable. Ibid.
36
tion is guaranteed to a Federal soldier.” 24 “[I]n another
county of that State the grand jury indicted every Union
judge, sheriff, and clerk of the election of August, 1865. In
addition to that every loyal man who had been in the Army
and had, under the order of his superior officer, taken a
horse, was indicted.” 25 Discrimination against the Union
men “is the rule in Kentucky, except in one solitary dis
trict, and the Legislature at its last session inauguarated
means of removing that judge, simply because he dared
to carry out this act of the Federal Congress [the 1863
removal statute].” 26 “There must be some way of remedy
ing this crying evil, and these men who have been engaged
in the defense of the country cannot be permitted to be per
secuted in this sort of way. Then life becomes hardly worth
having, if, after having driven the rebels out of their
country and subdued them, those rebels are to be permitted
to return and harass them from morning until night and
from night till morning, and make their life a curse for
that very defense which they have given your country.” 27
It is impossible to read these debates of the thirty-ninth
Congress without concluding that the federal legislators
were intensely aware of the hostility and anti-Union preju
dice of the southern state courts28 and of the use of state
court proceedings to harass the Union men. Nor, under
24Id. at 1526 (McKee, of Kentucky, in the House, 3/20/66).
25 Id. at 1527 (Smith, of Kentucky, in the House, 3/20/66). See
also id. at 1526 (McKee, of Kentucky, in the House, 3/20/66).
26 Ibid. (McKee, of Kentucky, in the House, 3/20/66). See also
id. at 2063 (Clark in the Senate, 4/20/66).
27 Id. at 2054 (Clark in the Senate, 4/20/66).
28 E.g., id. at 1526 (McKee, of Kentucky, in the House, 3/20/66),
1527 (Garfield and Smith, of Kentucky, in the House, 3/20/66),
1529 (Cook, who reported the bill and was its floor manager, see
note 18 supra, in the House, 3/20/66), 2054, 2063 (Clark in the
3 7
these circumstances, was this Congress willing to adopt a
hands-off attitude toward state criminal administration.
During nearly three-quarters of a century following the
First Judiciary Act of September 24, 1789, ch. 20, 1 Stat.
73, Congress had relegated the enforcement of federal rights
generally to the state trial courts,29 subject to limited re
view by the Supreme Court of the United States, and had
shown itself particularly reluctant to interject the federal
courts into the course of state criminal proceedings.30 It
had authorized only limited federal judicial incursions—
by removal provisions in 1815 and 183331 and anticipatory
Senate 4/20/66). Clark pointed out that hostile state legislatures
could not be looked to for redress of the discriminations practiced
by hostile state judges. Id. at 2054 (4/20/66). The only relief
for the Union men was access to the federal courts: “There is
where they are most likely to have their rights protected. There
is where local prejudices are frowned down.” Id. at 1526 (McKee,
of Kentucky, in the House, 3/20/66) ; see also id. at 1528 (Smith,
of Kentucky, in the House, 3/20/66), 1529-1530 (Cook in the
House, 3/20/66); cf. id. at 1387 (Cook in the House, 3/14/66).
29 Hart & Wechsler, The Federal Courts and the Federal
System 727 (1954). Except for the brief interlude following the
Act of February 13, 1801, ch. 4, § 11, 2 Stat. 89, 92, repealed by
the Act of March 8, 1802, ch. 8, 2 Stat. 132, the lower federal courts
had no general federal question jurisdiction until 1875. Judiciary
Act of March 3, 1875, ch. 137, 18 Stat. 470.
so The First Judiciary Act, for example, was explicit in excepting
state prisoners from the federal habeas corpus jurisdiction. See
note 13 supra. Congressional reluctance to involve the lower federal
courts in state criminal proceedings is understandable enough when
one considers the furor raised as late as 1821 by Supreme Court
assumption of jurisdiction to review federal questions in state
criminal cases. Cohens v. Virginia, 6 Wheat. 264 (1821) • 1 War
ren, Tile Supreme Court in United States History 547-559
(Rev. ed. 1932).
31 Act of February 4, 1815, eh. 31, § 8, 3 Stat. 195, 198; Act of
March 3, 1815, ch. 43, § 6, 3 Stat. 231, 233. These statutes re
sponded to New England resistance to the War of 1812. See
1 MORISON & COMMAGER, GROW TH OF TH E A M ERICA N REPU BLIC
428, 429 (4th ed. 1950). The Force Act of March 2, 1833 has been
discussed at p. 23 supra.
3 8
habeas corpus grants in 1833 and 184232—in cases where
there were extraordinary reasons to distrust the state judi
cial institutions. But the experience of the Civil War and
the beginnings or Reconstruction brought new attitudes.
Extensive civil and criminal removal statutes were enacted,
covering in 1863 persons acting under Presidential order or
act of Congress during the rebellion, in 1864 federal inter
nal revenue officers and persons acting under them, in 1866
civil rights cases, again in 1866 all persons acting during the
rebellion under military orders, and in 1871 voting enforce
ment cases.33 Union military commanders under the Con
gressional Reconstruction program withdrew from the state
courts in the South civil and criminal jurisdiction over all
cases involving union soldiers and freedmen, and gave the
jurisdiction to national military tribunals.34 Subsequently,
implementing the new guarantees in which the Thirteenth,
Fourteenth and Fifteenth Amendments committed the fed
eral government to protect its citizens against the States,
Congress was to create in 1871 a broad civil rights juris
diction35 whose purpose was to supersede state judicial
processes without respect to exhaustion of state remedies,
32 See pp. 25-27 supra.
33 Act of March 3, 1863, ch. 81, § 5, 12 Stat. 755, 756, p. 26 supra;
Act of March 7, 1864, ch. 20, § 9, 13 Stat. 14, 17 and Act of June
30, 1864, ch. 173, § 50, 13 Stat. 223, 241, amended by the Act of
July 13, 1866, ch. 184, 14 Stat. 98 (these last three statutes cover
ing revenue officers); Act of April 9, 1866, ch. 31, § 3, 14 Stat. 27,
note 19 supra; Act of May 11, 1866, ch. 80, 14 Stat. 46, pp. 26-27
supra; Act of February 28, 1871, ch. 99, § 16, 16 Stat. 438.
34 See Cong. Globe, 39th Cong., 1st Sess. 1834 (4/7/66); Dunn
ing, Essays on the Civil War and Reconstruction 147, 156-163
(1898).
35 Act of April 20, 1871, ch. 22, § 1, 17 Stat. 13, the third Civil
Rights Act, called the Ku Klux Act. The jurisdiction survives in
present 28 U. S. C. § 1343 (1958) and Rev. Stat. § 1979, 42 U. S. C
§ 1983 (1958).
3 9
‘‘because, by reason of prejudice, passion, neglect, intoler
ance or otherwise, state laws might not be enforced and the
claims of citizens to the enjoyment of rights, privileges,
and immunities guaranteed by the Fourteenth Amendment
might be denied by the state agencies.” 36 No longer was it
assumed that the state courts were the fit tribunals for
the protection of federal interests except in the relatively
rare cases where they showed themselves unfit. Now those
courts were seen as instruments for the deprivation of
federally guaranteed liberties, and Congress acted to sup
plant them with a pervasive federal trial jurisdiction.37
In similar, though more limited, circumstances in 1833—
South Carolina’s resistance to the Tariff of Abominations
—Congress had responded by the creation both of removal
and of anticipatory habeas corpus jurisdiction to enable
federal courts to protect the tariff officials. The removal
legislation of 1863 and 1866 was patterned on that of 1833.38
36 Monroe v. Pape, 365 U. S. 167, 180 (1961). The purpose of
the 1871 statute to provide a federal forum for the vindication of
federal civil rights notwithstanding failure to exhaust state rem
edies was reaffirmed in MeNeese v. Board of Education, 373 U. S.
668 (1963).
37 Each of the four major civil rights acts contained jurisdictional
provisions giving enforcement power to the federal trial courts.
Act of April 9, 1866, eh. 31, § 3, 14 Stat. 27; Act of May 31, 1870,
ch. 114, §§ 8, 18, 16 Stat. 140, 142, 144; Act of April 20, 1871,
ch. 22, § 1, 17 Stat. 13; Act of March 1, 1875, ch. 114, § 3, 18 Stat.
335, 336. Significantly, by the Judiciary Act of March 3, 1875, ch.
137, 18 Stat. 470, Congress gave general federal question juris
diction to the lower federal courts, thus establishing that henceforth
those courts, not the state courts, were to be the ordinary and
natural agencies for the administration of federal law. See Frank
furter & Landis, The Business of the Supreme Court 64-65
(1928).
38 See Cong. Globe, 39th Cong., 1st Sess. 1387 (Cook in the House,
3/14/66).
4 0
But removal proved in practice an insufficient protection
against hostile state courts;39 subjection of defendants to
the initial stages of state process offered large opportuni
ties for harassment and obstruction in the vindication of
federal rights. With this knowledge, Congress enacted the
habeas corpus statute of 1867, and the temper of the times
clearly supports the conclusion that “the proponents of the
remedy certainly contemplated the by-passing of the state
judicial processes.” Brennan, Federal Habeas Corpus for
State Prisoners: An Exercise in Federalism, 7 U tah L.
Rev. 423, 426 (1961).40 It is fair to say that the purpose
of the Congress which created the federal habeas juris
diction now codified in 28 U. S. C. § 2241(c) (3) (1958)
flatly repels the conception that persons seeking to enforce
the civil rights which the nation won for them in the Civil
War and preserved by the post-War amendments should
be remitted for exhaustion of remedies to the state courts
which were the very agencies of harassing them in the
exercise of those rights.
(3) Judicial development of the exhaustion doctrine.
The broad scope of the habeas corpus jurisdiction con
ferred by the 1867 act was immediately recognized by the
Supreme Court. “This legislation is of the most com
prehensive character. It brings within the habeas corpus
jurisdiction of every court and of every judge every pos
sible case of privation of liberty contrary to the National
39 By a variety of devices, the state courts had managed to defeat
removal under the 1863 act. See notes 18, 23 supra; also Cong.
Globe, 39th Cong., 1st Sess. 1526 (McKee, of Kentucky, in the
House, 3/20/66), 1527 (Smith, of Kentucky, in the House,
3/20/66), 2054 (Wilson in the Senate, 4/20/66).
40 See Justice Brennan’s statement for the Court in Fay v. Noia,
p. 28 supra.
4 1
Constitution, treaties, or laws. It is impossible to widen
this jurisdiction.” Ex parte McCardle, 6 Wall. 318, 325-326
(1867). Ironically the act was invoked in MeCardle’s case
not by a state prisoner complaining of state restraint in
violation of federally guaranteed freedoms or federally
protected interests, but by a Union army prisoner held for
trial before a military commission on charges of publishing
anti-Union propaganda in the newspaper of which he was
an editor; his habeas corpus petition challenged the validity
of the federal Reconstruction Acts, and Congress, fearful
that the Supreme Court would void the legislation, immedi
ately withdrew its appellate jurisdiction in cases (including
McCardle’s) arising under the 1867 habeas statute. Act
of March 27, 1868, ch. 34, § 2, 15 Stat. 44; see Ex parte Mc
Cardle, 7 Wall. 506 (1869). This left it to the lower federal
courts, during the years until the Supreme Court’s ap
pellate jurisdiction was restored by the Act of March 3,
1885, ch. 353, 23 Stat. 437, to construe the new habeas corpus
grant without Supreme Court guidance. Significantly, these
contemporary lower court decisions viewed the 1867 statute
as imperatively demanding federal discharge of state
prisoners held for trial or after state trial-court convic
tion, notwithstanding the existence of still unexhausted
state remedies. Ex parte McCready, 15 Fed. Cas. 1345,
No. 8,732 (C. C. E. D. Va. 1874); Ex parte Bridges, 4 Fed.
Cas. 98, No. 1,862 (C. C. N. D. Ga. 1875); Ex parte Tatem,
23 Fed. Cas. 708, No. 13,759 (E. D. Va. 1877). Particularly,
in a series of cases arising out of prosecutions under legis
lation by which the Pacific Coast States and municipalities
sought to discriminate against the immigrant Chinese,
federal district and circuit courts, striking down the legis
lation under the Fourteenth Amendment, released their
habeas corpus petitioners in advance of state trial or im
4 2
mediately following summary state conviction. In re Par
rott, 1 Fed. 481 (C. C. D. Cal. 1880); In re Quong Woo,
13 Fed. 229 (C. C. D. Cal. 1882); In re Lee Tong, 18 Fed.
253 (D. Ore. 1883); In re Wan Yin, 22 Fed. 701 (D. Ore.
1885); Ex parte Ah Lit, 26 Fed. 512 (D. Ore. 1886); In re
Tie Loy, 26 Fed. 611 (C. C. D. Cal. 1886). In some of
these cases, particularly those from the Oregon District
Court, the substantive holdings of unconstitutionality were
more or less extravagant (the Oregon District Judge voided
several municipal ordinances on the theory that, being ultra
vires state enabling legislation, they violated due process
of law); these decisions were received with consternation
by the legal profession, see R eport op the Seventh Annual
Meeting op the American Bar A ssociation 12-44 (1884),
which in turn led Congress to reestablish the Supreme
Court’s appellate jurisdiction in habeas cases in 1885.
Doubtless the same consternation respecting the scope
given the Due Process Clause by some lower courts ac
counts in part for the birth of the exhaustion doctrine in
Ex parte Royall, 117 U. S. 241 (1886), the following year.
Royall was not a case in which a habeas peti
tioner invoked federal constitutional protection in the ser
vice of the federal interests or the federal freedoms with
which the Reconstruction Congress had been principally
concerned. It presented a Contracts Clause question, and
had every appearance of a carefully made test case by which
Royall, being in no particular circumstance of urgency,
was employing the habeas corpus route as the most con
venient device to obtain a Supreme Court ruling on the
validity of Virginia’s state bond coupon legislation.41 The
41 Royall, an attorney, had been at large on bond for almost a
year after his arrest in 1884; shortly after passage of the statute
restoring the Supreme Court’s appellate habeas jurisdiction, he
surrendered into custody and filed his petition.
4 3
case was unarguably within the broad jurisdictional lan
guage of the 1867 habeas corpus grant, but as obviously
■without its purposes. In this context—and in the calmer
post-Reeonstruction era which resembled neither 1867 nor
1965 in the South—the Supreme Court understandably
concluded that the federal habeas courts (although em
powered to discharge state criminal defendants before state
trial, 117 U. S. at 245-250) had and should exercise a “dis
cretion,” 117 U. S. at 251, to abstain in favor of the orderly
process of state court trial and appeal, “that discretion,
however, to be subordinated to any special circumstances
requiring immediate action,” 117 U. S. at 253. Like Royall,
the cases which soon followed it in refusing federal habeas
corpus to a prisoner in advance of his state trial involved
issues which (where not altogether frivolous), either did not
implicate the post-War Amendments42 or saw the Four
teenth Amendment invoked against state regulatory legis
lation by economic interests apparently able to bear with
out harm the burdens of protracted state-court litigation.43
With the expansion of conceptions of due process as a
limitation upon state criminal procedure and the conse
quent expansion of federal habeas corpus as a post-convic
tion remedy,44 the focus of litigation under the Royall doc
trine became the question of exhaustion of state collateral
remedies for federal constitutional violations in the trial
process; in these cases exhaustion was rigorously de
42 See the cases cited at p. 19 supra; also, Cunningham v. Skiri-
otes, 101 F. 2d 635 (5th Cir. 1939) ; United States ex rel. Silverman
v. Fiscus, 42 Fed. 395 (W. D. Pa. 1890) ; In re Alexander, 84 Fed.
633 (W. D. N. C. 1898) ; cf. Minnesota v. Brundage, 180 IJ. S. 499
(1901).
43 See Baker v. Grice, 169 U. S. 284 (1898) ; Ex parte Bartlett,
197 Fed. 98 (E. D. Wise. 1912).
44 See discussion in sources collected in note 14 supra.
4 4
manded of Fourteenth Amendment claimants,45 perhaps be
cause the need for immediate federal intervention seemed
less compelling where the nature of the state judicial pro
ceedings (rather than the power of the State to proceed
at all in the premises) was challenged, perhaps because
the outstanding early post-conviction cases were death
cases where the habeas petitioner had no particular ob
jection to delay so long as he remained unexecuted in the
interim, more probably because the Royall principle was
simply carried over unthinkingly from Contract Clause
and Commerce Clause cases to Fourteenth Amendment
cases having no smack of urgency about them, and thence
to all Fourteenth Amendment cases, subject to the “excep
tional circumstances” qualification. It is enlightening that
this was not the contemporary view of Royall. For in the
West Coast Chinese cases raising significant Due Process
and Equal Protection challenges to state legislation on its
face or as applied, see p. 42 supra, the lower federal
courts continued to protect the Chinese by anticipatory
habeas corpus even after Royall, see In re Sam Kee, 31
Fed. 680 (C. C. N. D. Cal. 1887); In re Lee Sing, 43 Fed.
359 (C. C. N. D. Cal. 1890). And this Court itself ap
proved such an employment of habeas corpus, without con
sideration of exhaustion of state remedies, in Wo Lee v.
Hopkins, reported with Tick Wo v. Hopkins, 118 U. S. 356
(1886). The Fifth Circuit’s decisions in Application of
Wyckoff, Brown v. Ray field, and the present case, requiring
exhaustion in similar situations, are inconsistent with these
cases.
45E.g., Mooney v. Holohan, 294 U. S. 103 (1935)- Ex parte
Hawk, 321 U. S. 114 (1944).
4 5
(4) Application of the exhaustion doctrine to civil rights
cases.
Petitioner asks this Court to repudiate these latter-day
extensions of the exhaustion requirement. Her position,
simply, is that a habeas petition states a case for an
ticipatory federal habeas corpus relief if it shows that
the petitioner is held for state prosecution on account of an
act which was in the exercise of civil rights46 protected by
the Fourteenth Amendment or Fifteenth Amendment. The
protection of civil rights, the protection of the liberty of the
freedman and the loyal Union man in the South against
persecution and oppression, were paramount objects of
the Congress which enacted the 1867 habeas corpus statute.
Aware that state courts were being used as agencies of har
assment, Congress enlarged the federal habeas corpus juris
diction—theretofore always employed by it as a pretrial
remedy to abort state proceedings which infringed par
ticular federal concerns—to reach all cases of restraint
of liberty in violation of federal law; it enacted that, after
proceeding “in a summary way to determine the facts of the
case, . . . if it shall appear that the petitioner is deprived
of his or her liberty in contravention of the constitution
or laws of the United States, he or she shall forthwith be
discharged and set at liberty,” and all subsequent state court
proceedings shall be void. 14 Stat. 386. Doubtless Boyall
exercised a permissible judicial license in holding that a
46 The phrase “civil rights” is used advisedly, despite the possi
bility of unclarity at its fringes, to designate what Mr. Justice
Stone in dealing with a cognate statute described as a “right or
immunity . . . of personal liberty, not dependent for its existence
upon the infringement of property rights.” Hague v. C. I. 0., 307
U. S. 496, 518, 531 (1939) (plurality opinion). Congress has
used the words “civil rights” with, apparently, the same meaning,
28U. S. C. § 1343(4) (1958).
4 6
federal habeas court need not always “forthwith” award
the writ in advance of a state trial despite the peremptory
tone of the statute. But “the court could not, against the
positive language of Congress, declare any such exception,”
Ex parte Royall, 117 U. S. at 249, and the exception which
Royall allowed to the exercise of a congressionally-given
jurisdiction47 was allowed only because it was supposed to
be not inconsistent with congressional purpose, 117 U. S. at
251, 252. In situations which, like Royall, fall within the
1867 statute’s terms but not within the immediate range
of congressional concern or foresight, implication of judi
cial “discretion” to delay relief may properly be thought not
inconsistent with the statute. However, reading the stat
ute fairly against its background, it is obvious that Con
gress intended principally the creation of a summary, super
vening federal trial jurisdiction brooking no accommoda
tion of state court processes; and, at least in that class
of cases where the operation of such a jurisdiction was
clearly foreseeable in light of the circumstances which give
rise to the enactment, that sort of jurisdiction should be
exercised as given. This is the case where a habeas peti
tioner seeks relief from state restraint imposed on him
on account of his exercise of the civil rights guaranteed by
the post-War Amendments and their enforcing legislation.
The mainspring of Royall is the principle that the “dis
cretion [of a federal habeas court to abstain until state
remedies are exhausted] should be exercised in the light of
the relations existing, under our system of government,
between the judicial tribunals of the Union and of the
States, and in recognition of the fact that the public good
47 Cf. Chief Justice Marshall, in Cohens v. Virginia, 6 Wheat.
264, 404 (1821) : “We have no more right to decline the exercise
of jurisdiction which is given, than to usurp that which is not
given. The one or the other would be treason to the constitution.”
4 7
requires that those relations be not disturbed by unneces
sary conflict between courts equally bound to guard and
protect rights secured by the Constitution.” 117 U. S. at
251. In appraising the appropriate “relations existing . . .
between the judicial tribunals of the Union and of the
States,” it is pertinent to inquire what specific “rights” are
in issue, what the Constitution and the Congress (by other
legislation than the habeas corpus statute itself) have said
about their importance and the usual forum for their en
forcement, and, finally, what the federal and state courts
respectively can do and are in fact doing under their obliga
tion “to guard and protect” those rights. Federal absten
tion in favor of state court processes under this principle
presupposes that, in respect of the subject matter of the
litigation, the state courts have a generally primary com
petence or responsibility—that they are the ordinary and
normal place for such litigation. However valid this may be
regarding other federal questions (and particularly those
of procedural due process, where the federal claim arises
out of the state court proceedings themselves), it is clearly
not so in matters of civil rights. For not only did the
Reconstruction Congress create an extensive original fed
eral jurisdiction in civil rights cases, see note 35 supra, it
created in § 3 of the first Civil Rights Act, in 1866, federal
removal jurisdiction over state criminal cases implicating
civil rights, and even original criminal jurisdiction over
state-law offenses affecting persons denied their federal
civil rights.48 An impressive array of recent decisions—
48 Act of April 9, 1866, ch. 31, § 3, 14 Stat. 27, predecessor of
present 28 U. S. C. § 1443 (1958). Only in the cases of original
federal criminal jurisdiction over state-law crimes and in removal
cases not arising from the exercise of federal civil rights, did the
1866 act admit a place for state court responsibility in the first
instance.
4 8
Fay v. Noia, 372 U. S. 391 (1963); Townsend v. Sain, 372
U. S. 293 (1963); Monroe v. Pape, 365 U. S. 167 (1961);
McNeese v. Board of Education, 373 U. S. 668 (1963); Bag
gett v. Bullitt, 377 U. S. 360 (1964); Dombrowski v. Pfister,
380 U. S. 479 (1965); Rachel v. Georgia, 342 F. 2d 336 (5th
Cir. 1965); Peacock v. City of Greenwood, 347 F. 2d 679
(5th Cir. 1965); Cox v. Louisiana, 348 F. 2d 750 (5th Cir.
1965), all decided under the Reconstruction legislation—
recognize the primary responsibility of the federal courts
“within this precious area” where “Congress has declared
the historic judgment th a t. .. there is to be no slightest risk
of nullification by state process . . . not because the interest
of the state is smaller in such cases, but because its interest
is outweighed by other factors of the highest national con
cern.” Wechsler, Federal Jurisdiction and the Revision of
the Judicial Code, 13 Law & Contemp. P rob. 216, 230 (1948).
In this area, consistently with Royall, deference to state
process is unwarranted.
To assume jurisdiction in the present case, however, the
Court need not reach the question of the application of the
exhaustion doctrine to all civil rights cases. This ease is a
particularly strong one for anticipatory federal relief.
Under the allegations of paragraphs VI and VIII of the
petition, and on the basis of Mississippi legislation which
the court may judicially notice, see p. 16 supra, it is ap
parent that the State of Mississippi has mounted and is
maintaining a comprehensive practice of resistance to fed
eral civil rights. Mississippi’s massive resistance is per
tinent here for several reasons. First, the decision in Roy-
all’s case to delay the summary exercise of a jurisdiction
given the federal courts by Congress in order effectively
to protect federal rights was premised on the assumption
4 9
that state and federal courts were “equally bound to guard
and protect rights secured by the Constitution,” 117 U. S.
at 251, and that the state courts in general would probably
do their job. Where the hostility of all state authorities to
a particular class of federal rights is intense, the prob
ability that the state courts will defend those rights di
minishes so substantially as no longer to justify the as
sumption made in Royall or the judgment of accommoda
tion based upon it. Second, the fact of massive state
resistance to federal constitutional guarantees is itself a
substantial threat to the principle of national supremacy in
matters of national concern upon which American federal
ism is based, and thus per se implicates “the authority and
operations of the General Government” within a recog
nized exception to the exhaustion doctrine described at
pp. 53-57. Cf. Cooper v. Aaron, 358 U. S. 1 (1958); Griffin
v. County School Board of Prince Edward County, 377
U. S. 218 (1964). Third, the situation of massive re
sistance to federally protected interests was exactly that
which faced the Congress in 1867 and to which it re
sponded with the grant of habeas corpus jurisdiction which
petitioner invokes. The statutory history of this grant
compels the conclusion that, at least in this situation, Con
gress intended the federal habeas corpus courts to super
sede, not defer to, state courts which were then, as now,
used as the instruments for the harassment of individuals
asserting federal rights. The Royall doctrine, emerging
after Reconstruction as a principle for the operation of the
federal courts in calmer days, found that abnegation of
the summary jurisdiction given by the habeas corpus legis
lation was not inconsistent with the legislation’s purposes.
Application of the doctrine in modern instances of massive
resistance would be flatly inconsistent with those purposes.
5 0
Moreover, petitioner here invokes the habeas corpus
jurisdiction in vindication of rights secured by the First
and Fourteenth Amendments: freedom of speech, associa
tion and assembly in the service of political expression.
This Court has time and again said that these rights
occupy a constitutionally preferred position,49 and it has
recognized that “The threat of sanctions may deter their
exercise almost as potently as the actual application of
sanctions.” N.A.A.C.P. v. Button, 371 U. S. 415, 433 (1963).
See also Smith v. California, 361 U. S. 147, 151 (1959);
Bantam Boohs, Inc. v. Sullivan, 372 IT. S. 58, 66-70 (1963);
Cramp v. Board of Public Instruction, 368 IT. S. 278, 286-
288 (1961); Garrison v. Louisiana, 379 IT. S. 64, 70
(1964) . “ [P]rosecution is punishment,” Dilworth v. Biner,
343 F. 2d 226, 231 (5th Cir. 1965), no less in First Amend
ment than in other civil rights cases; and where the First
Amendment is involved, the need for immediate federal
judicial process to resist even slight state repression is
the more imperious. Dombrowski v. Pfister, 380 IT. S. 479
(1965) ; Cox v. Louisiana, 348 F. 2d 750 (5th Cir. 1965).
By means of the present prosecution, the State of Mis
sissippi is harassing petitioner, punishing her for the past
exercise of First-Fourteenth Amendment freedoms, de
terring her future exercise of these freedoms, and, through
petitioner, stifling and repressing COFO and Negro voter
registration. So long as this prosecution is pending, state
power to forbid petitioner’s activities is confidently as
serted; until the prosecution is disposed of and that power-
denied, few will be hardy enough to exercise their rights
49 Marsh v. Alabama, 326 U. S. 501, 509 (1946), and opinions
cited; Prince v. Massachusetts, 321 U. S. 158, 164 (1944); Saia v.
New York, 334 I T . S. 558, 562 (1948) ; cf. New York Times v
Sullivan, 376 U. S. 254, 269-270 (1964).
51
and follow petitioner into the toils of Mississippi justice.
Years of delay in the vindication of freedoms essential
to the daily functioning of democracy are the price of
federal abstention under the exhaustion doctrine.50 “Mean
while, where the vagueness of the statute”—and its con
sequent susceptibility to use as an instrument of racial
harassment—“deters constitutionally protected conduct,
‘the free dissemination of ideas may be the loser,’ ” Baggett
v. Bullitt, 377 U. S. 360, 379 (1964), and the long, bitterly
resisted struggle of the Mississippi Negroes against un
constitutional disfranchisement will be further prolonged
in frustration.
Petitioner claims that the statute under which she is
prosecuted is void and unconstitutional on its face. If this
is so, the policy against disturbance of state criminal pro
ceedings is not strong, for Mississippi’s interest in the un
impeded administration of a statute which it cannot con
stitutionally apply in any case is surely minimal. On the
other hand, the high priority which the Court has assigned
to First Amendment liberties and its traditional concern
lest the threat of punishment suppress unpopular speech
give impressive cause for recognition that the very pen-
50 In February and March, 1964, the Supreme Court of Missis
sippi reached, and affirmed, convictions in harassment prosecutions
arising out of the May, 1961 Freedom Rides. See Thomas v. State,
160 So. 2d 657 (Miss. 1964) ; Farmer v. State, 161 So. 2d 159
(Miss. 1964), and companion cases; Knight v. State, 161 So. 2d 521
(Miss. 1964). And more than another year was to pass before the
Supreme Court of the United States reached, and reversed, these
convictions. Thomas v. Mississippi, 380 U. S. 524 (1965). Compare
Edwards v. South Carolina, 372 U. S. 229 (1963) (two years from
arrest to Supreme Court reversal of conviction); Fields v. South
Carolina, 375 U. S. 44 (1963) (three and a half years from arrest
to Supreme Court reversal of conviction) • Henry v. Rock Hill, 376
U. S. 776 (1964) (more than four years from arrest to Supreme
Court reversal of conviction).
52
deucy of state prosecutions aimed at First Amendment
conduct and calculated to harass those whose speech and
association are unpopular and to deter others from speech
and work in the service of unpopular causes, is itself an
intolerable clog on First Amendment freedom. Summary
federal disposition of such prosecutions is the more im
peratively demanded because the power to suppress speech
even briefly by harassment is the power to render it ineffec
tive as an instrument of democratic political action.
Petitioner also claims that the statute is unconstitutional
as applied to her situation. Such a claim depends on facts,
and the power of the trier of the facts to find the facts
adversely to petitioner is the power to destroy her constitu
tional freedoms. See, e.g., Feiner v. New York, 340 TJ. S.
315, 319, 321 (1951). The whole purpose of the creation of
a federal trial jurisdiction in habeas corpus in 1867 was to
relieve persons claiming federal constitutional or statutory
protection from resort to unsympathetic state courts, to
give them a federal forum “where local prejudices are
frowned down,” see note 28 supra, where their federal
rights were not crushed by the risk of biased fact-finding.
For that risk not only works to impede the ultimate vindi
cation of the federal rights of a state criminal defendant
who goes to trial in the state courts; the knowledge that
effective enforcement of these rights is committed to the
largely unreviewable power of state magistrates and judges
tends broadly to deter their exercise in the service of un
popular causes. For these reasons, “ [t]he possibility of
appellate review by [the Supreme Court of the United
States] . . . of a state court determination may not be
substituted, against a party’s wishes, for his right to liti
gate his federal claims fully in the federal courts.” Eng-
53
land v. Louisiana State Board of Medical Examiners, 375
U. S. 411, 417 (1964). After her conviction in the state
courts, it is clear petitioner will be entitled to trial de novo
of the facts on federal habeas corpus. See Townsend v.
Sain, 372 U. S. 293 (1963). Pretrial federal habeas corpus
relief is no greater disruption of “the relations existing,
under our system of government, between the judicial tri
bunals of the Union and of the States,” Ex parte Royall,
117 U. S. at 251, than post-conviction federal habeas corpus
relief. The only difference is that the first remedy is timely
and effective, while the second is not.
(5) Application of the exhaustion doctrine to cases in
volving federal voting rights.
But there is still a narrower ground on which the decision
below is wrong and—in this aspect—inconsistent with deci
sions of this Court. One long recognized exception to the
ordinary doctrine requiring exhaustion of state judicial
remedies before resort to a federal court on habeas corpus
is the principle, recognized in the Royall opinion itself,
that special circumstances justifying anticipatory federal
habeas corpus relief are presented in “cases of urgency,
involving the authority and operations of the General
Government.” 117 U. S. at 251. The classic case is In re
Neagle, 135 U. S. 1 (1890), where the Court affirmed the
discharge of a federal deputy marshal committed for ex
amination on a California murder charge which, the Court
found, arose out of a killing committed in the scope of his
authority as a bodyguard to Mr. Justice Field, who was
then traveling as a Circuit Justice.
“ . . . But all these questions [of Neagle’s authority
to kill in protection of Justice Field] being conceded,
5 4
it is urged against the relief sought by this writ of
habeas corpus, that the question of the guilt of the
prisoner of the crime of murder is a question to be
determined by the laws of California, and to be decided
by its courts, and that there exists no power in the
government of the United States to take away the
prisoner from the custody of the proper authorities of
the State of California and carry him before a judge
of the court of the United States, and release him with
out a trial by jury according to the laws of the State
of California. That the statute of the United States
[present 28 U. S. C. §2241 (1958)] authorizes and di
rects such a proceeding and such a judgment in a case
where the offence charged against the prisoner con
sists in an act done in pursuance of a law of the United
States and by virtue of its authority [present § 2241
(c)(2)], and where the imprisonment of the party is
in violation of the Constitution and laws of the United
States [present § 2241(c) (3)], is clear by its express
language” 135 U. S. at 69-70.
The exercise of the power approved in Neagle’s case was
approved again in Ohio v. Thomas, 173 U. S. 276 (1899),
affirming the release on habeas corpus, prior to trial de
novo on summary appeal from a justice of the peace con
viction, of the governor of a federal disabled veteran’s
home prosecuted for serving oleomargarine in the mess
room in violation of a state statute regulating oleo. Fol
lowing these decisions, the lower federal courts have ordi
narily entertained petitions for the writ in advance of state
trial in cases where federal officers are prosecuted, e.g.,
Reed v. Madden, 87 F. 2d 846 (8th Cir. 1937); In re Fair,
100 Fed. 149 (C. C. D. Neb. 1900); United States ex rel.
55
Flynn v. Fuellhart, 106 Fed. 911 (C. C. W. D. Pa. 1901);
United States v. Lipsett, 156 Fed. 65 (W. D. Mich. 1907);
Ex parte Warner, 21 F. 2d 542 (N. D. Okla. 1927); Brown
v. Gain, 56 F. Supp. 56 (E. D. Pa. 1944); Lima v. Lawler,
63 F. Supp. 446 (E. D. Va. 1945), or where private citizens
acting under federal officers are prosecuted, Anderson v.
Elliott, 101 Fed. 609 (4th Cir. 1900), dism’d 22 S. Ct. 930
(1902); West Virginia v. Laing, 133 Fed. 887 (4th Cir.
1904).61
The principle of Neagle, however, carries beyond such
cases. In Wildenhus’s Case, 120 U. S. 1 (1887), the Court
held that federal habeas corpus was appropriately used to
inquire into the claim that three alien seamen, one bound
over to a state grand jury on a murder charge and two
committed as material witnesses to the offense, were ex
empt from state criminal jurisdiction by virtue of a treaty.51 52
In In re Loney, 134 U. S. 372 (1890), it affirmed the federal
circuit court’s discharge of a habeas petitioner held by the
51 Discharge of federal officers has sometimes been denied after
evidentiary hearing where the evidence did not preponderately
show that the officer was acting within the seope of his federal
authority. United States ex rel. Drury v. Lewis, 200 U. S. 1
(1906); Birsch v. Tumbleson, 31 F. 2d 811 (4th Cir. 1929);
Castle v. Lewis, 254 Fed. 917 (8th Cir. 1918) ; Ex parte Tilden,
218 Fed. 920 (D. Ida. 1914). The evidentiary standard is dis
cussed in Brown v. Cain and Lima v. Lawler, cited in text supra.
These cases do not reflect hesitation to use the federal writ in
any case in which the interests of the federal government are
affected; they indicate only that, in each case, the federal interest
was not sufficiently shown on the facts. See In re Matthews, 122
Fed. 248 (E. D. Ky. 1902), and particularly In re Miller, 42 Fed.
307 (E. D. S. C. 1890) ; cf. Ex parte United States ex rel. An
derson, 67 F. Supp. 374 (S. D. Fla. 1946), decided on same
grounds without a hearing.
52 United States ex rel. Kennedy v. Tyler, 269 U. S. 13, 19 (1925),
puts Wildenhus on the ground that it “concerned the delicate
relations of [the] . . . government with a foreign nation.” It
should be noted that the petition was filed by the foreign consul.
Belief was denied on the merits.
5 6
police sergeant of Richmond, Virginia on a warrant charg
ing him with perjury in giving his deposition before a
notary public in the case of a contested election of a mem
ber of the federal House of Representatives. And in Ex
parte Wood, 155 Fed. 190 (C. C. W. D. N. C. 1907), the
circuit court entertained a habeas corpus petition, follow
ing conviction in a police justice’s court but before appeal
for trial de novo in the superior court, of a railroad ticket
agent charged with selling tickets at rates in excess of
those fixed by a state statute whose enforcement the circuit
court had previously enjoined. The court held the statute
unconstitutional, found that open and avowed resistance by
state officials to its injunction presented a situation in
volving “ [n] ot only . . . the rights of litigants . . . , but the
dignity and authority of the Circuit Court of the United
States as well,” 155 Fed. at 191, and discharged the peti
tioner. The Supreme Court cited Neagle and affirmed.
Hunter v. Wood, 209 U. S. 205 (1908).53
The present case falls well within the scope of these de
cisions. As Loney suggests, nothing more substantially af
fects “the authority and operations of the General Gov
ernment” than matters touching the very voting process
by which officers of the national government are elected.
Upon the fair and effective operation of the voting process,
including voter registration, depends the democratic char
acter of the government established by the Constitution.
That this is not a matter of mere private rights has been
legislatively determined: Congress has authorized suit by
the Attorney General in the public interest to protect the
franchise. 42 U. S. C. A. §1971(c)-(f) (1963 Supp.),
amended by Title I of the Civil Rights Act of 1964, 78 Stat.
53 And see Ex parte Conway, 48 Fed. 77 (C. C. D. S. C. 1891).
5 7
241-242, adding two new subsections. And Congress has
recognized in 42 U. S. C. A. § 1971(d) (1963 Supp.) that
the federal district courts are the appropriate forum for
the litigation of matters affecting the right to vote “without
regard to whether the party aggrieved shall have exhausted
any . . . other remedies. . . . ” Against this background of
federal governmental involvement and express congres
sional concern, the Court of Appeals for the Fifth Circuit
has authorized the United States to sue to restrain Mis
sissippi prosecution of a voter registration worker in cir
cumstances strikingly similar to those of the present case.
United States v. Wood, 295 F. 2d 772 (5th Cir. 1961), cert,
denied, 369 U. S. 850 (1962). The same considerations
which were dispositive in Wood bring the present harass
ment prosecution of a registration worker within the
Neagle-Loney principle:
“The foundation of our form of government is the
consent of the governed. Whenever any person inter
feres with the right of any other person to vote or to
vote as he may choose, he acts like a political termite
to destroy a part of that foundation. A single termite
or many termites may pass unnoticed, but each dam
ages the foundation, and if that process is allowed to
continue the whole structure may crumble and fall even
before the occupants become aware of their peril. Erad
ication of political termites, or at least checking their
activities, is necessary to prevent irreparable damage
to our Government. On the other hand, the temporary
postponement of trial of a misdemeanor case before a
justice of the peace causes either no injury or very
slight injury. . . . ” 295 F. 2d at 784-785.
CONCLUSION
The writ of certiorari should be granted to review and
reverse the judgment of the Court of Appeals.
Respectfully submitted,
Of counsel:
H enry M. A ronson
538% North Farish Street
Jackson, Mississippi 39202
J ack Greenberg
J ames M. N abrit, III
M elvyn Z arr
10 Columbus Circle
New York, New York 10019
A n th o n y G. A msterdam
3400 Chestnut Street
Philadelphia, Pa. 19104
R. J ess B rown
Carsie A. H ale
J ack H . Y oung
A P P E N D I C E S
APPENDIX I
Order
[Caption omitted]
Upon consideration of the verified petition for writ of
habeas corpus, it is,
Or d er ed :
That the petition be and it hereby is denied for failure to
exhaust available state remedies. 28 U. S. C. § 2254; In re
Wyckoff, 196 F. Supp. 515 (S. D. Miss. 1961), 6 Race Rela
tions L. Rptr. 786, petition for immediate hearing and for
leave to proceed on original papers denied, id. at 793 (5th
Cir. 1961), petition for habeas corpus denied, id. at 794
(Circuit Justice Black, with whom Mr. Justice Clark con
curs, 1961); Brown v. Ray field, 320 F. 2d 96 (5th Cir. 1963),
cert, denied 375 U. S. 902 (1963).
This the 5th day of January, 1965.
/ s / Claude F. Clayton
Claude F. Clayton,
District Judge
2a
APPENDIX II
I n th e
UNITED STATES COURT OF APPEALS
F or t h e F if t h C ircuit
No. 22241
J an H illegas,
—versus—
Appellant,
J oe S ams, J r., County Attorney for Lowndes County,
Mississippi, et al.,
Appellees.
Appeal from the United States District Court for the
Northern District of Mississippi
(August 16, 1965.)
B e f o r e :
J ones and B row n , Circuit Judges, and
S h e e h y , District Judge.
J ones, Circuit Judge: The appellant, Jan Hillegas,
brought a habeas corpus proceeding in the United States
3a
District Court for the Northern District of Mississippi
claiming she was detained by the appellees unlawfully
and in violation of Federally guaranteed rights. The facts
herein recited are as set forth in her petition and, for the
purposes of the ease, are assumed to be true. The appellant
is a white woman, twenty-one years of age, and went to
Lowndes County, Mississippi from Syracuse, New York.
In Mississippi she was associated with the Congress of
Federated Organizations (COFO) in assisting Negroes in
their efforts to register to vote. COFO arranged for her
meals and lodging. Such money as she needed was sup
plied by her mother. While in the county courthouse of
Lowndes County at Columbus, Mississippi, sitting on a
bench with two other COFO workers, the appellant and her
companions were told by a deputy of the appellee, Sheriff
Taylor, to leave the courthouse and that if they did not
leave he would arrest them. They did not leave and he
arrested them, took them to the Sheriff’s office where they
were told they were charged with vagrancy. Appellant
and her companions attempted, by a show of currency and
other means, to persuade the deputy sheriff that they were
not vagrants. Their efforts produced no results and they
were confined in the county jail. Other efforts, equally
unavailing, were made to procure appellant’s release. She
then filed a petition for habeas corpus in the United States
District Court which was denied. This appeal is from the
order of the district court, which based its order upon fail
ure to exhaust available state remedies. No effort was
made to obtain relief in the courts of Mississippi. Nothing
is here shown to call for the application of a different rule
than was announced and applied in Brown v. Bayfield, 5th
Cir. 1963, 320 F. 2d 96, cert. den. 375 IT. S. 902, 84 S. Ct.
O pin ion
O pin ion
191, 11 L. Ed. 2d 143, and in the ease of In re Wykcoff,
6 Race Eel. L. Rep. 786, 793, which is discussed in Brown
v. Ray field. The principles announced in those cases sus
tain the decision of the district court and its judgment is
A ffirm ed .
B rown , Circuit Judge, c o n c u rr in g :
I concur, but solely because Brown v. Bayfield, so long
as it stands, squarely rules this case. But, with deference,
that decision, the victim of inadequate presentation, is,
I think, wrong and ought to be reversed.
Petitioner Hillegas’ petition, seeking federal habeas
corpus relief pursuant to 28 USCA § 2241, alleges in un
equivocal, factually detailed, language that she is held1
in state custody in violation of her federal constitutional
right. Applying Conley v. Gibson, 1957, 355 U. S. 41, 78
S. Ct. 99, 2 L. Ed. 2d 80, as we must, this means that the
Court holds that prosecution and trial by a state to ef
fectuate unconstitutional race discrimination is not an
“extraordinary” case. I can imagine nothing more extraor
dinary.
Parts I-VI of the petition describe Miss Hillegas, her
resources, her work for COFO in Lowndes County in as
sisting Negroes in confirming their voting rights in the
face of past discrimination by the County Registrar under
the color of Mississippi law and constitutional provisions,
noting particularly that the Lowndes County Registrar
was a named party in the Government’s massive assault
on these provisions and practices in United States v. Mis
sissippi, S. D. Miss. (3-Judge), 1964, 229 F. Supp. 925,
1 She was subsequently released on bond.
5a
O pin ion
reversed, 1965,----- U. S .------, ----- - S. Ct.----- , 13 L. Ed. 2d
717. Then in Part VII, it is specifically asserted: (1) If
the Mississippi vagrancy statute2 is construed to apply to
her conduct, it would be violative of her “freedom of speech,
of association and assembly (U. S. C onst. Amends. I, XIV),
of her federal privilege to disseminate information per
tinent to registration and voting in national elections, and
to encourage and support Negro citizens of Mississippi to
register and vote in national elections (IT. S. Const., Amend.
XV),” and (2) if the vagrancy statute is construed to save
its constitutionality, “there is no evidence to support the
charge * * * consistently with due process of law (U. S.
Const., Amend. XIV).” 3
It is next asserted that her arrest and detention is for
the purpose of deterring her from exercising the consti
tutional rights previously mentioned, and Negro citizens
from seeking to secure their constitutional franchise. In
Part VIII, all of this is said to be pursuant to a state wide
practice of segregation, subscribed to by all public officials
—-including state judges who are popularly elected. She
candidly and expressly acknowledges that no attempt was
made to exhaust state remedies, maintaining this to be
unnecessary in light of the facts alleged.
2 Miss. Code Ann. § 2666 :
“The following persons are and shall be punished as vagrants,
viz: * # *
“ (c) All persons able to work, having no property to support
them, and who have no visible or known means of fair, honest,
and reputable livelihood. * * * ”
3 The authorities supporting (2) as a serious constitutional issue
have been recently reviewed by Chief Justice Warren in his dissent
from the Supreme Court’s refusal to hear Drew7 v. Maryland, 1965,
----- U. S .------ , ----- S. C t.-------, ----- L. Ed. 2 d ------- [No. 1010,
June 1, 1965, 33 L. W. 3385],
6 a
The District Court disagreed and, without holding an
evidentiary hearing, dismissed for lack of exhaustion,
relying on In re Wycoff and Brown v. Ray field, cited in
the Court’s opinion, supra. Both of those cases held that
a case for the exception to the exhaustion requirement of
28 USCA § 2254 had not been made out. From an exam
ination of these cases, and particularly a close reading of
the briefs filed in Brown, it is apparent that the Court
did not there have before it the same rich historical ma
terials on the intent of Congress in passing the Act of
1867 (the forerunner of § 2241) and the early court de
cisions interpreting it, relative to the extent of the avail
ability of pre-trial federal habeas relief, set forth in Ap
pellant’s lengthy, scholarly, completely annotated brief filed
by Professor Anthony Amsterdam.4
How Wycoff ever got into Brown is a mystery.
Wycoff is simply inapposite. Being an application for
post conviction habeas relief, the case was put and argued
as to whether that case came within the exception to the
exhaustion requirement of § 2254—“that there is either
an absence of available State corrective process or the
existence of circumstances rendering such process ineffec
tive to protect the rights of the prisoner.'’ Section 2254,
however, has nothing to do with our case. This is so be
cause that section, in requiring exhaustion as a general
rule, has to do only with those “in custody pursuant to
the judgment of a State court * * * .” It necessarily relates
solely to post-conviction habeas.
4 These materials are substantially duplicated in Professor Am
sterdam’s recent article, Criminal Prosecutions Affecting Federally
Guaranteed Civil Rights: Federal Removal and Habeas Corpus
Jurisdiction to Abort State Court Trial, 113 U. Pa. L. Rev 793
805-912 (1965).
O pin ion
7a
Here we have a pre-trial petition, uncluttered by any
state court judgment. Statutory restrictions on post-con
viction habeas are not really pertinent. But this is where
Brown v. Bayfield complicates the matter. For that case,
as in the one before us, involved a pre-trial application
for habeas relief for an arrest and confinement and under
similar circumstances.5 Belying, as any good Court ought
to do, on the earnest, but historically incomplete presen
tations of counsel who mistakenly urged that the case was
one coming within the exception to § 2254 (applicable only
to post conviction), the Court followed Wycoff holding
that under § 2254, exhaustion was necessary. Examining
it wholly from the typical exhaustion point of view, the
Court stopped short of considering whether the petitioner
should be allowed to make proof in an appropriate hear
ing of his allegation that the prosecution was instituted
for a racially discriminatory purpose, and that he could
not get a fair trial.6
5 The petition in Brown v. Bayfield alleged that petitioners, while
walking single file carrying signs protesting segregation, were
arrested and detained for “parading without a permit.”
6 This is quite different from the approach taken by this Court
with regard to removal, 28 USCA § 1443(1), whereunder similar
allegations are often made. In Peacock v. City of Greenwood,
Mississippi, 5 Cir., 1965, ----- F. 2 d ----- [No. 21655, June 22’
1965], holding that a petition for removal alleging discriminatory
application of a facially valid state statute (same issue as here)
was sufficient for removal, entitling the petitioner to establish
factually his charge that the prosecution was undertaken for
racially discriminatory purposes. (See discussion of Rachel v.
State of Georgia, infra.) Emphasizing that the decision went only
to the right to be heard on the jurisdictional facts, the Court stated :
“Of course, such allegations must be proved if challenged.
Consequently, removal based on misapplication of a statute
may fail for want of proof. However, we deal here only with
what allegations are sufficient to prevent remand without a
O pin ion
8a
Professor Amsterdam points out the exhaustion require
ment relative to pre-trial habeas petitions is a court-made
doctrine flowing from Ex parte Roy all, 1886, 117 U. S. 241,
----- S. Ct. ----- , ----- L. Ed. ----- , designed to curb pre
trial abuses of the writ. He argues convincingly that in
spite of Royall and its progeny, Congress, in passing the
Habeas Act in 1867, intended and the Courts have accorded,
substantial utilization of the writ as a pre-trial remedy—
in extraordinary circumstances. The question, therefore,
is whether the category of cases which Professor Amster
dam advisedly terms “civil rights cases,” 7 or perhaps more
narrowly those where the petitioner is, contrary to his
federal constitutional rights, being prevented from assist
ing in the ongoing of an important federal interest—such
as voter registration—is the kind of extraordinary case,
as to which Congress intended and the courts have allowed,
pre-trial federal habeas relief. This question, far more
complicated and serious than made to appear in Brown v.
Ray field, deserves a considered answer not in the darkness
of that unillumined presentation but in the full light of
these historical-juridical materials which are a classic of
legal literature though unpersuasive here.
O pin ion
hearing.’̂ The allegation was “that Mississippi Code § 2296.5
[obstruction of public streets] is being applied against [the
petitioners] _ for purposes of harassment, intimidation, and
as an impediment to their work in the voter registration drive,
thereby depriving them of equal protection of the laws.”
----- F. 2d at ----- .
But as in Rachel, determination (after hearing) that the case
is removable automatically resolves the issue and forbids the state
criminal trial. This allegation is, of course, precisely made in the
case before us.
7 See Amsterdam, supra, note 3, at 804.
9a
Any such reassessment will demonstrate that the same
factors are at work in parallel systems of effective federal
redress against state inspired, state caused, state per
mitted, instances of unequal treatment.
Dombrowshi v. Phister, 1965,----- TJ. S .------ , —— S. Ct.
----- , 14 L. Ed. 2d 22, involves the role of the injunction
pursuant to 42 USCA § 1983. There plaintiffs sought to
enjoin the anticipated enforcement of state subversive
activity control statutes against their free expression ac
tivities aimed at the advancement of Negro civil rights.
Must we not say here, as did the Supreme Court in Dom
browshi in distinguishing the usual non-injunction rule
of Douglas v. City of Jeanette, 1943, 319 U. S. 157, 63 S. Ct.
877, 87 L. Ed. 1324, that “the allegations in this complaint
depict a situation in which defense of the State’s criminal
prosecution will not assure adequate vindication of con
stitutional rights. They suggest that a substantial loss
or impairment of freedoms of expression will occur if
appellants must await the State court’s disposition and
ultimate review in this Court of any adverse determina
tion. These allegations, if true, clearly show irreparable
injury. * # * Because of the sensitive nature of constitu
tional expression, we have not required that all of those
subject to overbroad regulations risk prosecution to test
their rights.” 14 L. Ed. 2d at 28. In Dombrowshi, as here,
the motive for the prosecution was challenged, and with
the factor present in the allegations that the arrest, con
finement and prosecution is really part of a scheme of
harassment, the prospect of eventual success in the state
courts or correction in the Supreme Court is an inadequate
protection of the constitutional right to free expression.
14 L. Ed. 2d 29.
O pin ion
10a
In 1961 we took similar action in United States v. Wood,
5 Cir., 1961, 295 F. 2d 772, where prosecution of the alleged
assailant was enjoined because of its disruptive effect on
others then seeking to exercise constitutional rights (voter
registration).
More recent is Rachel v. State of Georgia, 5 Cir., 1965,
342 F. 2d 336, involving the civil rights removal statute, 28
USCA § 1443. Since a “statute”, as construed by this Court,
was alleged to be one of the causes of discrimination, the
case came within the traditional grounds for removal, Ken
tucky v. Powers, 1906, 201 U. S. 1, 26 S. Ct. 387, 50 L. Ed.
633; State of Virginia v. Rives, 1879,100 U. S. 313, 25 L. Ed.
667. Going even further is Peacock v. City of Greenwood,
Mississippi, June 22, 1965, note 6, supra, in which we held
“that a good claim for removal under §1443(1) is stated
by allegations that a state statute has been applied prior
to trial so as to deprive an accused of his equal civil rights
in that the arrest and charge under the statute were ef
fected for reasons of racial discrimination.” —. F. 2d
a t ----- .
And this was given full voice by us in Cox v. Louisiana,
5 Cir., June 29, 1965,----- F. 2d------ [No. 22657], in which
we granted a stay pending appeal to prevent state prose
cution charged to have been initiated to “harass and punish
citizens for the exercise of their constitutional rights. * * * ”
----- F. 2d a t ------ .
Pointing to the congressional view and the receding
scope we give to the Douglas v. City of Jeanette comity
concept in the face of the use of the laws machinery as
the engine of racial denials is Dilworth v. Riner, 5 Cir.,
1965, 343 F. 2d 226. In an extended opinion authored by
O pin ion
11a
Judge Bell, we declared that the Civil Bights Act of 1964
overrode the general comity statute, 28 USCA § 2283, to
permit injunctions against state prosecutions for actions
which were constitutionally protected.
Thus we have now passed the point where Federal Courts
can refuse to hear evidence in support of a factually de
tailed claim that a state criminal prosecution has been ini
tiated to effectuate racially motivated denial of constitu
tional rights. By civil injunction and removal we recognize
that this much interference with state criminal prosecu
tions is the price we pay under the Supremacy Clause.8
In doing so we conclude that the situation is “extraor
dinary” and therefore calls for extraordinary relief. That
the Great Writ which is always free of technical impedi
ments is now relegated to a second class role is a surprise.
All the more is my surprise that we can hold that deliberate,
purposeful use by the State of its criminal machinery to
wreak denials of constitutional rights is not an “extraor
dinary” case.
Brown v. Ray field may be the latest, but it cannot be the
last word on this vital question.
O pin ion
81 recognize that with removal and civil injunction being less
peremptory, a Court might well defer action on a habeas petition
pending use of these flexible devices. Likewise, availability of
such devices might, after a hearing to resolve the truth of the
charges, permit some discretion in denial or deferment of the writ.
1 2 a
UNITED STATES COURT OF APPEALS
F or t h e F if t h C ircuit
October Term, 1964
No. 22241
D. C. Docket No. EC-65-L
J an H illegas,
Appellant,
—versus—
J oe S ams, J r ., County Attorney for Lowndes County,
Mississippi, et al.,
Appellees.
Appeal from the United States District Court for the
Northern District of Mississippi
B e f o r e :
J ones an d B row n , Circuit Judges, an d
S h e e h y , District Judge.
J udgment
This cause came on to be heard on the transcript of the
record from the United States District Court for the North
ern District of Mississippi, and was argued by counsel;
13a
Judgment
On consideration w h e r e o f , It is now here ordered and
adjudged by this Court that the judgment of the said Dis
trict Court in this cause be, and the same is hereby, affirmed;
It is f u r t h e r ordered and adjudged that the appellant,
Jan Hillegas, be condemned to pay the costs of this cause
in this Court for which execution may be issued out of the
said District Court.
B r o w n , Circuit Judge, Concurs Specially
August 16, 1965
Issued as Mandate:
1 4 a
I n th e
UNITED STATES COURT OF APPEALS
F ob t h e F if t h Circuit
No. 22241
J an H illegas,
Appellant,
—versus—
J oe S ams, J r ., County Attorney for Lowndes County,
Mississippi, et al.,
Appellees.
Appeal from the United States District Court for the
Northern District of Mississippi
On P etitio n for R ehearing
(September 27, 1965)
B e f o r e :
J ones a n d B row n , Circuit Judges, an d
S h e e h y , District Judge.
P er Cu r ia m :
It is ordered That the petition for rehearing in the above
entitled and numbered cause be, and the same is hereby
D e n ie d .
15a
APPENDIX III
P etitio n foe W kit of H abeas Corpus W it h M otion foe
S tay of S tate Court P roceedings
[Caption omitted]
Filed January 5, 1965
To: Honorable Claude F. Clayton, District Judge, United
States District Court for the Northern District of
Mississippi:
Petitioner’s verified petition and motion respectfully aver
that;
I.
The jurisdiction of this court is invoked under 28 U. S. C.
§ 2241 (1958) to release petitioner Jan Hillegas from the
custody of respondents Joe Sams, Jr., County Attorney of
Lowndes County, Mississippi; Penn Taylor, Sheriff of
Lowndes County, Mississippi and Custodian of the County
Jail of Lowndes County, Mississippi, who now hold peti
tioner confined in that jail, in the city of Columbus, Missis
sippi, within the Northern District of Mississippi, in viola
tion of the Fourteenth and Fifteenth Amendments to the
Constitution of the United States. Pursuant to 28 U. S. C.
§ 2251 (1958), the court is authorized to stay state proceed
ings against petitioner for matters involved in this habeas
corpus proceeding.
rr.
On December 28, 1964, petitioner was arrested by re
spondent Taylor or his deputies and agents. Respondents
now hold petitioner under authority of an affidavit and war
rant charging petitioner with the offense of vagrancy, Miss.
Code A n n . §2666 (Eecomp. Vol. 1956). A copy of the
affidavit and warrant has been refused petitioner’s em
ployer by respondent Taylor. Petitioner is held for appear
ance and trial before the justice of the peace of Lowndes
County, Mississippi, January 6, 1965, on the charges set out
in the affidavit and warrant. Respondent Taylor has set
bail in the amount of $200. Petitioner has not made bond.
III.
(A) Petitioner is a 21-year-old girl, white, a college
graduate, domiciled in Syracuse, New York. The Council of
Federated Organizations (hereafter COFO) is an associa
tion of civil rights and local citizenship groups working in
Mississippi to achieve by peaceful and lawful means the
equal civil rights of Negroes and all persons and to educate,
assist and encourage Negroes to register and vote in local,
state and national elections free of racial discrimination and
racial disenfranchisement forbidden by the Fourteenth and
Fifteenth Amendments. COFO has employed, does employ
and will employ petitioner continuously as a voter registra
tion worker in the State of Mississippi. (Allegations in this
part III that anything “has” been done mean that it has
been done at all times after the date of petitioner’s entry
into Mississippi, including but not limited to the period
prior to her arrest, December 28, 1964). Petitioner’s duties
for COFO consist of interviewing Negro citizens of Missis
sippi for the purpose of encouraging, assisting and educat
ing them to register to vote, of accompanying Negroes to
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P e tit io n fo r W r i t o f H a b ea s C o rp u s W ith M o tio n
fo r S ta y o f S ta te C o u rt P ro ceed in g s
the place of voting registration for the purpose of support
ing their efforts to register free of racial discrimination, of
observing conduct by state officials or other persons calcu
lated to racially disenfranchise Negroes in violation of the
Fourteenth and Fifteenth Amendments, and of participat
ing in the administration of CQFO’s program having the ob
jectives described above.
(B) In connection with her employment by COFO, peti
tioner is presently resident in the State of Mississippi for
a period of more than six months.
(C) In consideration of and partial payment for her
work, COFO has arranged that petitioner live without ex
pense to herself in the home of Reverend Wheadon, a well-
known, respected retired Negro minister in Columbus, Mis
sissippi. Prior to and at the time of her arrest, December
28,1964, petitioner was living in Reverend Wheadon’s home,
802 N. 14th Street, Columbus, Mississippi. Her accommoda
tions in Reverend Wheadon’s home have remained avail
able to her following her arrest, and she would presently
be living there but for her confinement by respondent.
(D) Also in consideration of and partial payment for
her services, COFO has supplied, does supply, and will
supply petitioner all her meals without expense to herself
during her residence in Mississippi, and further has as
sumed, does assume and will assume responsibility for sup
plying petitioner during her stay in Mississippi her support,
maintenance, and reasonable livelihood, including all things
necessary to sustain her as a reputable member of the com
munity.
P e tit io n fo r W r i t o f H ab ea s C o rp u s W ith M o tio n
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(E) Independently of COFO, petitioner’s mother, Mrs.
Estella Hillegas, of Syracuse, New York, has supplied, does
supply, and will supply petitioner with money sufficient to
sustain her as a reputable member of the community, and
has assumed, does assume, and will assume responsibility to
supply petitioner sufficient income for her support and main
tenance during her residence in Mississippi.
IY.
(A) December 28, 1964, in the course of her employment
for COFO, petitioner was present in the county courthouse
for Lowndes County in Columbus, Mississippi, together
with two other COFO workers, whose duties were similar
to petitioner’s, Dennis Gaston and Dove Green. Petitioner,
Gaston and Green were engaged in directing Negroes who
desired to register to vote in local, state and national elec
tions into the office of the county registrar for Lowndes
County; in assuring such Negroes, to the best of their
ability, against intimidation and harassment designed to
dissuade Negro voter registration by reason of race in
violation of the Fourteenth and Fifteenth Amendments and
42 U. S. C. A. § 1971 (1963 Supp.), 42 U. S. C. A, 1983, 1985
(1958); and in interviewing Negroes who had presented
themselves to the county registrar for voting registration,
for the purpose of ascertaining whether the registrar was
complying with his obligation under the cited provisions of
federal law to register such Negroes without discrimination
by reason of race.
(B) While engaged in the foregoing activities, and con
ducting themselves at all times in a lawful, quiet and orderly
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manner, petitioner, Gaston and Green were seated on a
bench or seat outside the office of the Circuit Clerk in the
county courthouse. Circuit Clerk Wiggins came out of the
office and asked what they were doing there. They replied
that they were there to aid and give moral support to the
Negroes who were attempting to register to vote. Circuit
Clerk Wiggins told them to make themselves comfortable.
(C) Shortly thereafter, petitioner, Gaston and Green
were approached at the same place by a Deputy Sheriff of
Lowndes County, an agent of respondent Taylor, whose
name is believed to be Herrin and who will hereafter be so
referred to. Herrin asked petitioner and her companions
the same questions which they had been asked by Circuit
Clerk Wiggins and they gave him the same answer. Herrin
then told them that they would have to leave. They replied
that they had a right to remain in the courthouse. Herrin
said that if they did not leave he would arrest them. Then,
without giving them an opportunity to move or reply, he
told them to come with him. They asked if they were under
arrest. He said they were. They asked for what offense.
Herrin said for creating a public disturbance; that the
people in the offices were complaining that they could not
work with the three COFO workers there.
(D) Petitioner, Gaston and Green accompanied Herrin to
the Sheriff’s office in the courthouse. There they were told
that they were charged with vagrancy or suspicion of va
grancy. Each of the three workers offered to show Herrin
a form, hereafter referred to as a vagrancy form, prepared
by COFO for the purpose of identifying COFO employees.
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Petitioner’s vagrancy form contained her name and ad
dress, and stated the fact of her employment by COFO. Pe
titioner also offered to show Herrin an amount of paper
money, but Herrin refused to look at the vagrancy forms of
any of the three workers or at petitioner’s money. Peti
tioner, Gaston and Green were thereupon charged with
vagrancy and incarcerated in the Lowndes County Jail on
that charge.
P e tit io n fo r W r i t o f H a b ea s C o rp u s W ith M o tio n
fo r S ta y o f S ta te C ourt P ro ceed in g s
Y.
On or about December 29, 1964, Cephas Hughes, an au
thorized representative of COFO, accompanied by Reverend
Tom Lasswell and Rev. Albert Cohen, went to respondent
Sams in Sams’ office to attempt to obtain the dropping of
the vagrancy charges against the three arrested COFO
workers. After Sams had been informed that Gaston was a
full time student in California and was planning to leave
Mississippi for California on the following day, Sams
agreed to drop charges against Gaston, phoned the jail and
ordered Gaston’s release. With respect to petitioner,
Hughes informed Sams that petitioner was a New York
domiciliary, a college graduate, and a COFO employee;
that she lived in the neighborhood with Reverend Wheadon,
and that her meals and necessaries were supplied by COFO.
Hughes also showed Sams a wire, a facsimile of which is
attached as Exhibit I to this petition, dated December 28,
1964, from Mrs. Estella Hillegas of Syracuse, New York,
stating that as petitioner’s mother Mrs. Estella Hillegas
had assumed and would continue to assume responsibility to
supply her daughter all her decent needs as a member of
21a
the community while in Mississippi. After being so in
formed, Sams refused to drop charges against petitioner.
Hughes similarly gave Sams information that Green was a
COFO employee whose lodging, board and necessaries were
supplied by COFO but Sams similarly refused to drop
charges against Green. Hughes thereupon went to respond
ent Taylor at the jail and asked for a copy of the affidavits
and warrants against petitioner and Green, which request
respondent Taylor refused.
VI.
(A) Now and during many years past, the registrar
of Lowndes County is discriminatorily denying and has
discriminatorily denied Negroes the right to register to
vote by reason of their race. He has done so under color
of Miss. Const., art, 12, §§ 241-A and 244, provisions which
on their face and in their discriminatory application by him
violate the Fourteenth and Fifteenth Amendments and the
commands of 42 U. S. C. A. § 1971 (1963 Supp.), 42 U. S. C.
§§ 1983, 1985 (1958). The United States of America has
brought suit against the registrar of Lowndes County and
others to enjoin these discriminatory and unconstitutional
practices, which suit is presently pending in the Supreme
Court of the United States. United States v. Mississippi,
229 F. Supp. 925 (S. H. Miss. 1964), probable jurisdiction
noted, 377 U. S. 988 (1964). In 1961, the voting age popula
tion of Lowndes County was: White, 16460; Negro, 8362.
There were 5869 registered white voters and 63 registered
Negro voters. These figures have not significantly changed
since that date.
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2 2 a
(B) It is the purpose of COFO and of petitioner as an
employee of COFO to assist, encourage and educate Negro
citizens and residents of Lowndes County to register to
vote and vote in local, state and national elections.
VII.
Petitioner is presently in custody in violation of the
Fourteenth and Fifteenth Amendments because:
(A) the charge on which she is held is unconstitutional
as applied to petitioner, for (1) is Miss. Code A n n . § 2666
(Becomp. Vol. 1956) applies to persons engaged in the ac
tivities in which petitioner is engaged, and supported and
maintained as petitioner is supported and maintained, it
deprives her of freedom of speech, of association and as
sembly (U. S. Const., Amends. I, XIV), of her federal
privilege to disseminate information pertinent to registra
tion and voting in national elections, and to encourage and
support Negro citizens of Mississippi to register and vote
in national elections (TJ. S. Const., Amend. XV), while (2)
if Miss. Code A n n . § 2666 is construed and applied so as to
save its constitutionality, there is no evidence to support the
charge against petitioner consistently with due process of
law (U. S. Const., Amend. XIV).
(B) petitioner’s detention and prosecution has the design
and effect of harassing and punishing petitioner for at
tempting to assist Negroes to register to vote, of deterring
and intimidating petitioner from continuing to exercise her
rights described para. IV(A) supra, and of deterring Negro
citizens of Lowndes County from attempting to register to
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2 3 a
vote, thereby depriving such Negroes of the franchise by
reason of race, in violation of the Fifteenth Amendment and
42 U. S. C. A. § 1971 (1963 Supp.), 42 U. S. C. §§ 1983, 1985
(1958).
(C) petitioner was arrested and is now detained without
probable cause to believe that she was committing or had
committed any offense, in violation of the Fourth and Four
teenth Amendments.
(D) on information and belief, the Lowndes County Jail,
pursuant to Miss. Coxst., § art, 11, § 225 and Miss. C ode
Ann. §§4259, 7965 (Eepl. Vol. 1956), maintains segregated
facilities for the white and Negro races, in violation of the
Fourteenth Amendment.
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VIII.
Petitioner has made no attempt to exhaust her state rem
edies. She need not do so because the prosecution against
her implicates the authority and operations of the federal
government by harassing petitioner in her voter registra
tion activities described above and by deterring her from
continuing those activities and Negro citizens from attempt
ing to register to vote. This deterrence and harassment is
pursuant to a state-wide policy of the officials and public
agencies of the State of Mississippi to maintain racial dis
crimination in all phases of life in violation of the Four
teenth Amendment and in voting in violation of the
Fifteenth and Seventeenth and Art I, § 2 of the federal Con
stitution. Such a policy is evident on the face of the statutes
of the State of Mississippi which this court may judicially
2 4 a
notice, particularly Miss. Code Asnsr. §§4065.3, 2056(7)
(Repl. vols. 1956), and itself implicates the authority and
operations of the federal government. Further, state rem
edies are ineffective to protect petitioner’s rights be
cause the pendency of her prosecution in the state courts
dies in diorn intimidates and represses her in the exercise
of her First, Fourteenth and Fifteenth Amendment free
doms and intimidates and represses Negro citizens of
Lowndes County in the exercise of their voting rights under
Art. I, § 2 and the Fifteenth and Seventeenth Amendments.
Judicial remedies in the Mississippi courts are also ineffec
tive because the judges of those courts, and particularly the
justice of the peace and circuit judge of Lowndes County
are elected officials politically responsible to an electorate
from which Negroes have been systematically excluded and
which is hostile to Negro voter registration and to civil
rights activity generally.
P e tit io n fo r W r i t o f H a b ea s C o rp u s W ith M o tio n
fo r S ta y o f S ta te C o u rt P ro ceed in g s
IX.
No previous application to this court or to any federal
court or judge has been made for a writ of habeas corpus on
the grounds alleged herein.
W herefore, p e ti t io n e r p ra y s th e c o u rt a s fo llow s:
(1) that the court forthwith issue the writ or a rule to
show cause, in compliance with 28 U. S. C. § 2243, para. 1
(1958), returnable within as short a time as may appear
practicable, and in no event later than three days hence, in
compliance with 28 U. S. C. § 2243, para. 2 (1958);
25a
(2) that a hearing forthwith be set for as early a date
as pacticable, and in no event later than five days after the
return day in compliance with 28 U. S. C. §2243, para. 4
(1958);
(3) that after hearing this court release petitioner from
her unconstitutional confinement by respondents and dis
charge her from all further prosecution in any Mississippi
court for the matters involved in this petition; and
(4) that pending final disposition of this proceeding,
(A) this court release petitioner on her own recognizance
or on such reasonable bail as the court may set; and
(B) pursuant to 28 U. S. C. § 2251 (1958) this court stay
all proceedings in any Mississippi court against petitioner
for the matters involved in this petition.
/ s / H enry A ronson
Henry Aronson
507% N. Farish Street
Jackson, Mississippi
/ s / A n th o n y G. A msterdam
Anthony G. Amsterdam
3400 Chestnut Street
Philadelphia, Pa. 19104
Counsel for Petitioner
Of Counsel:
Jack H. Young
Carsie A. Hall
R. Jess Brown
(Duly verified.)
P e tit io n fo r W r i t o f H ab ea s C orpus W ith M o tio n
fo r S ta y o f S ta te C ourt P ro ceed in g s
26a
E x h ib it I A nnexed to P etitio n
WESTERN UNION
TELEGRAM
NSA007 SYA005 1964 DEC 29 AM 8 08
SY LLB049 NL PD=SYRACUSE NY 28=
WILLIE ERVIN, PROJECT DIRECTOR^
1212 17 ST NORTH (DLR DONT PONE)
COLUMBUS MISS=
TO WHOM IT MAY CONCERN I THE MOTHER OF
JAN HILLEGAS HAVE ASSUMED AND WILL CON
TINUE TO ASSUME FULL RESPONSIBILITY FOR
PROVIDING MY DAUGHTER JAN HILLEGAS ALL
HER DECENT NEEDS TO MAINTAIN HER AS A
RESPECTABLE MEMBER OF THE COMMUNITY OF
COLUMBUS MISSISSIPPI OR ANY OTHER PLACE
SHE MAY DESIRE TO RESIDE=
MRS. ESTELLA H. HILLEGAS.
N otice oe M otion
P lease T ake N otice that the undersigned attorney for
petitioner will bring the attached motions for bail and for
stay of state court proceedings before the United States
District Court for the Northern District of Mississippi,
Eastern Division, at the time of filing the attached petition
for writ of habeas corpus, on the 5th day of January, 1965
at 1 :30 (p.m.), or as soon thereafter as counsel can be heard.
/ s / H enby A bonson
Counsel for Petitioner
27a
M otion foe B ail and foe S tay
of S tate Couet P eoceedings
Upon the verified petition for habeas corpus and the at
tachments thereto, petitioner respectfully moves the court:
(1) to order petitioner’s release forthwith on her own re
cognizance or reasonable bail during the pendency of this
proceeding and until its final disposition;
(2) to stay proceedings against petitioner in any state
court of Mississippi for any matter involved in this petition
during the pendency of this proceeding and until its final
disposition.
Respectfully submitted,
/ s / H enby A eonson
Counsel for Petitioner
F obm Oedee
[Omitted]
a^!§!^» 38