NAACP v. NAACP Legal Defense Fund Petition for a Writ of Certiorari to the US Court of Appeals for the District of Columbia Circuit

    Urs?
IN THE

UNITED STATES COURT OP APPEALS
FOR THE FOURTH CIRCUIT 

NO. 13,463

VERNON JOHN NAIMASTER,
Appellee,

v.
NATIONAL ASSOCIATION FOR THE 
ADVANCEMENT OF COLORED PEOPLE, 
a body corporate; LILLIE M.
JACKSON; and JUANITA MITCHELL,

Appellants.

On Appeal From The United States District Court 
For The District Of Maryland

BRIEF FOR APPELLANTS

CLARENCE M. MITCHELL, JR. 1239 Druid Hill Avenue 
Baltimore, Maryland 21217

GERALD A. SMITH HOWARD, BROWN & WILLIAMS 1500 American Building 
Baltimore, Maryland 21202

JACK GREENBERG 
MELVYN ZARR10 Columbus Circle 

New York, New York 10019
Attorneys for Appellants



I TO EX
Page

Issue Presented ...................................  1
Statement of the C a s e...... ...... ................ 1
Argument

Appellants Stated A Sufficient Claim 
To Civil Rights Removal Jurisdiction 
Pursuant To 28 U.S.C. § 1443(1) ....... 5

Conclusion  ............ ........................ 8

Table of Cases

Greenwood v. Peacock, 384 U.S. 808 (1966) .........  5
Jones v. Mayer, 392 U.S. 409 (1968) ................ 6,7

Federal Statutes

28 U.S.C. <?1443 (1) ............................ . Passim
42 U.S.C. $1981 ...................................  Passim

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IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 
NO. 13,463

VERNON JOHN NAIMASTER,
Appellee,

t

V *

NATIONAL ASSOCIATION FOR THE 
ADVANCEMENT OF COLORED PEOPLE, 
a body corporate; LILLIE M.
JACKSON; and JUANITA MITCHELL,

Appellants.

On Appeal From The United States District Court 
For The District Of Maryland
BRIEF FOR APPELLANTS

Issue Presented

Does appellants' petition for removal state a claim for 
the exercise of civil rights removal jurisdiction pursuant to 
28 U.S.C. §1443(1)?

Statement of the Case

This is an appeal from an order of the united States District 
Court for the District of Maryland remanding the case to the 
Circuit Court of Baltimore County, from which it was removed 
pursuant to 28 U.S.C. §1443(1).



The court below held that the allegations of appellants* 
removal petition failed to state a removable case pursuant to 
§1443(1) (R. 51; 296 P. Supp. 1277, 1281). These allegations, as 
well as the declaration filed by appellee, are fairly summarized 
in the opinion below as follows (R. 47-50; 296 P. Supp. at 1279- 
81) s

The defendants fpetitioners-appellants] are the 
National Association for the Advancement of 
Colored People (NAACP), Lillie M. Jackson,
President of the Baltimore Branch, NAACP, a 
resident of Baltimore City, and Juanita Jackson 
Mitchell, an attorney who lives and has her 
office in Baltimore City.

The declaration filed in the State court by 
plaintiff [respondent-appellee] (Naimaster) contains four counts. Count I (for libel) alleges 
that Naimaster, a citizen and resident of Baltimore 
County, had for some twelve years before November 
10, 1965, been employed by the Baltimore Transit 
Company as a bus driver; that on that date defend­
ants "caused to be published by means of certain 
telegrams, copies of which were given to the press, 
certain words pertaining to the Plaintiff, falsely 
and maliciously in manner following;

"1965 Nov 10 PM 5 09
Phillip Sachs Chairman, Metropolitan Transit 
Authority. 10 Light St Balto 2
Baltimore Branch NAACP protests the racially 
inflammatory public utterances of a Baltimore 
Transit bus driver, Vernon Naimaster, who is 
Acting Grand Dragon for the Ku Klux Klan in 
the State of Maryland. His public pronouncements 
against Negroes and Jews make him totally unfit 
for employment in this public utility. Colored 
employees of the Transit Company further protest 
that he is continuing to make these utterances on 
the company grounds in the eastern division where 
he is employed. We would appreciate your immediate 
investigation and action on this urgent matter.

Dr. Lillie M. Jackson, Pres. Baltimore Branch 
NAACP."

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A similar telegram was sent to the president 
of Baltimore Transit Company. Plaintiff alleges 
that the "representations" in the telegrams reflected on his moral character and standing in 
the community, in that they imputed conduct tending 
to degrade him and expose him to public hatred, con­
tempt and ridicule, aversion and disgrace, and were 
calculated and intended to produce an evil opinion 
of him in the minds of right-thinking persons and 
deprive him of his employment; whereas, plaintiff 
alleges he has always been a law-abiding, decent 
and reputable citizen, has never been accused or 
convicted of any crime, has enjoyed a good reputa­
tion as a leader in his community, and that the 
publications were falsely and maliciously circulated 
and published by defendants with the intent of 
damaging him. Plaintiff does not deny that he was 
the Acting Grand Dragon of the Ku Klux Klan.

Count II (for invasion of privacy) realleges 
the facts in Count I, adding that Dr. Jackson 
and Mrs. Mitchell participated in other actions 
as individuals and as agents, servants or members 
of the NAACP, furthering the malicious intent to 
damage plaintiff, by making statements to the press, 
"testifying at hearings in connection with the 
Plaintiff's employment," and otherwise.

Count III (for malicious and intentional 
interference with plaintiff's contract of employ­
ment) and Count IV (for conspiracy) are based upon 
the same allegations, plus an allegation in Count IV that defendants conspired together to injure 
plaintiff and cause him damage and loss. Plaintiff 
claims actual and exemplary or punitive damages in 
the amount of $200,000, and has elected a jury trial.

Defendants filed a timely petition for removal and 
a motion to dismiss the action, contending that it 
was not properly brought in Baltimore County.

The petition for removal alleges the well-known 
history and purposes of the NAACP, the responsibili­
ties of the Metropolitan Transit Authority under Maryland law, and the activities of Naimaster in the 
Ku Klux Klan, including statements made by him on 
television and radio and reported in the press. The 
petition further alleges that many persons, includ­
ing passengers and employees of the Baltimore Transit 
Co., got in touch with Dr. Jackson and Mrs. Mitchell, 
both of whom have long been active in furthering the 
purposes of the NAACP, expressing fear and concern as 
a result of alleged acts and statements by plaintiff;

3



and that Dr. Jackson, as president of the Baltimore 
Branch, NAACP, sent the telegrams set out in the declaration. On November 11, 1965, the Baltimore 
Transit Company discharged Naimaster "for actions 
which have resulted in turmoil, dissension and apprehension among our employees" and for violating 
the company rule that employees "shall foster 
friendly relations between the company and the general public." The petition also alleges that 
pursuant to the terms of a collective bargaining 
agreement, an arbitration hearing was held in 
Baltimore City on March 11, 1966, at which Dr.Jackson appeared and Mrs. Mitchell testified. The 
discharge was upheld by the arbitrator.

The petition asserts several grounds for removal* 
first, that this suit "stems from the exerciee by the 
defendants-petitioners of their federal statutory 
right to give evidence," conferred by the Civil Rights 
Act of 1866, 42 U.S.C. §1981. Defendants cite 
particularly the allegations of Count II of the 
declaration, summarized above. 1/ Defendants claim 
that the "mere pendency of the suit indicates defend­
ants-petitioners are not free from harassment and the 
threat of pecuniary loss for engaging in a protected 
activity specifically conferred under a Federal 
statute"; that the "burden of having to defend against 
this suit" is a denial of their rights under the Act 
of 1866; and that "[b)y reason of the foregoing defend­
ants—petitioners are denied their rights in the courts 
of the State of Maryland."

1/ Although this contention applies only to Count 
II, if defendants have a right to remove one count 
to a federal court, they may remove the entire action.

In remanding the case to the state court, the court below 
held (R. 52; 296 F. Supp. at 1281-82);

Assuming, as petitioners argue, that the giving 
of testimony at an arbitration hearing is covered 
by 42 U.S.C. §1981,3/ which provides for equal civil 
rights within the meaning of 28 U.S.C. §1443(1), no 
federal law confers immunity from civil suit in a 
State court based upon the exercise of that right.

3/ Section 1981 provides in pertinent part;
"All persons *** shall have the same right ***

[to) give evidence *** as is enjoyed by white citizens.
To review that ruling, appellants filed this timely appeal.

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Argument
Appellants Stated A Sufficient Claim To 
Civil Rights Removal Jurisdiction Pursuant 
TO 28 U.S.C. § 1443(1) .

The court below held that, notwithstanding 42 U.S.C. § 1981
1/

is a "law providing for . . . equal civil rights" and covers the 
giving of evidence at an arbitration hearing, it does not "confer[ 1 
immunity from civil suit in a state court based upon the exercise 
of that right" (R. 52r 296 F. Supp. at 1281-82).

Appellants submit that § 1981 does confer immunity from civil 
suit in the unusual circumstances depicted by appellants' petition 
for removal, where the sole purpose and effect of the institution 
of the suit is to further the Ku Klux Klan's attempt to punish

1/ See Greenwood v. Peacock, 384 U.S. 808, 825 (1966).
2/ In Greenwood v. Peacock, 384 U.S. 808, 828 (1966), the test 
of removal under § 1443(1) was stated as follows:

Under § 1443(1), the vindication of the 
defendant's federal rights is left to the 
state courts except in the rare situations 
where it can be clearly predicted by reason 
of the operation of a pervasive and explicit 
state or federal law that those rights will 
inevitably be denied by the very act of bringing 
the defendant to trial in the state court.

5



from doing so in the future. Given the language and history of
§ 1981, it must do at least that much.

Section 1981 is derived from §1 of the Civil Rights Act of 
3/

1866, which provideds
That all persons born in the United States and 
not subject to any foreign power, excluding 
Indians not taxed, are hereby declared to be 
citizens of the United States? and such citizens, 
of every race and color, without regard to any 
previous condition of slavery or involuntary 
servitude, except as a punishment for crime 
whereof the party shall have been duly convicted, 
shall have the same right, in every State and 
Territory in the United States, to make and 
enforce contracts, to sue, be parties, and give 
evidence, to inherit, purchase, lease, sell, 
hold and convey real and personal property, and 
to full and equal benefit of all laws and pro­
ceedings for the security of person and property, 
as is enjoyed by white citizens, and shall be 
subject to like punishment, pains, and penalties, 
and to none other, any law, statute, ordinance, 
regulation, or custom, to the contrary notwith­
standing.

Negroes for giving evidence against the Klan and to deter them

Here, as in Jones v. Mayer, 392 U.S. 409, 420 (1968), "[w]e 
begin with the language of the statute itself." Section 1981, 
"fi)n plain and unambiguous terms" (ibid), grants to all citizens, 
without regard to race or color, the same right to give evidence 
as is enjoyed by white citizens. It prohibits all attempts to 
prevent Negroes from giving evidence —  whether those attempts 
are instigated by the State or not. In describing §1 of the

3/ Act of April 9, 1866, Ch. 31, §1, 14 Stat. 27. §1443(1) is
derived from §3 of that Act.

6



Civil Rights Act of 1866, from which both $§1981 and 1982 are 
derived, the Supreme Court held that it plainly meant to secure 
the right to give evidence and the other enumerated rights 
"against interference from any source whatever, whether govern­
mental or private" (Jones v. Mayer, supra, 392 U.S. at 424).

The private interference prohibited by this legislation was 
in no small part that perpetrated by the Klan, Its legislative 
history leaves no doubt on that score. See Jones v. Mayer, supra, 
392 U.S. at 427-36.

Thus, by its clear language and history, §1981 prevents any 
private interference with Negroes' rights to give evidence. A 
Klan threat of force would be a clear example of such proscribed 
interference. But it requires little ingenuity to discern that 
the Klan no longer limits itself to lynchings in order to prevent 
or punish Negroes' giving of evidence against it. indeed, as 
alleged in this case, it has resorted to legal process in order 
to harass appellants and so burden them with the incidents of 
litigation as to stifle any further attempts by them to expose 
Klan activities.

The thrust of the removed lawsuit may be more subtle than
a noose, but its purpose and effect is quite the same: to choke
off Negro exposure of the Klan. Against this, at the very least,

4/
§1981 and its companion statute, §1443(1), set their face.

4/ See note 3, supra.

7



Conclusion

For the foregoing reasons, the judgment below should be 
reversed and the case remanded to the district court for an 
evidentiary hearing.

Respectfully submitted.

CLARENCE M. MITCHELL, JR. 
1239 Druid Hill Avenue 
Baltimore, Maryland 21217

GERALD A. SMITH HOWARD, BROWN & WILLIAMS 1500 American Building 
Baltimore, Maryland 21202

JACK GREENBERG 
MELVYN ZARR10 Columbus Circle 

New York, New York 10019
Attorneys for Appellants

8



CERTIFICATE OF SERVICE

I hereby certify that on December 17, 1969, I served two 
copies of the foregoing Brief for Appellants upon the following 
attorneys of record for appellee, by United States mail, postage 
prepaid:

W. Giles Parker, Esq.Ill West Susquehanna Avenue 
Towson, Maryland 21204
M. Jacqueline McCurdy 
Attorney at Law 203 West Chesapeake Avenue 
Towson, Maryland 21204
Alan H. Murrell, Esq. 
Fidelity Building Baltimore, Maryland 21201

Attorney for Appellants