Tolg v. Grimes Reply Brief for Appellant-Appellee
Public Court Documents
October 31, 1965

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Brief Collection, LDF Court Filings. Tolg v. Grimes Reply Brief for Appellant-Appellee, 1965. 024f7247-c69a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/5e74eb32-f2b6-4ad6-9072-add622dce5df/tolg-v-grimes-reply-brief-for-appellant-appellee. Accessed June 13, 2025.
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I n th e Htttleii States (Enurt a! Appeals F ob th e F if t h Circu it No. 21661 T om T aylor T qlg, Appellant-Appellee, T. R alph Grim es , Sheriff of Fulton County, Georgia, Appellee-Appellant. (And Reverse Title) A PPE A L FRO M T H E U N IT E D STATES DISTRICT COURT FOB T H E N O R T H E R N DISTRICT OF GEORGIA REPLY BRIEF FOR THE APPELLANT-APPELLEE J ack Greenberg J ames M . N abrit , III 10 Columbus Circle New York 19, New York H oward M oore, J r. D onald L. H ollowell 859% Hunter Street, N.W. Atlanta, Georgia 30314 Attorneys for Appellant-Appellee S h eila R ush Of Counsel I N D E X PAGE T able oe C ases Bell v. Maryland, 378 U. S. 226 ....................................... 1 Dilworth v. Riner, 343 F. 2d 226 (1965) ....................... 3,4 Hamm v. Rock Hill, 379 U. S. 306 .............................1, 2, 4, 7 H. S. v. Chambers, 291 IT. S. 217 ................................... 1 U. S. v. Tynen, 78 U. S. (11 Wall.) 8 8 ........................... 1 U. S. ex rel. Randall v. IT. S. Marshal for E. D. of New York, 143 F. 2d 830 (2d Cir. 1944) ................... 3 S tatutes Civil Rights Act of 1964, 78 Stat. 241 ....... ....1, 2, 3, 4, 5, 6, 7 Title 28 IT. S. C. §2241(c)(3) .......................................... 7 O th er A uthorities 3 H. R. Report No. 914 (88th Cong. 1st Sess. 1963) 110 Cong. Rec. 6871 (daily ed. April 7, 1964) ___ 110 Cong. Rec. 12999 (daily ed. June 11, 1964) ... 6 I k the littfrft Court of Appralo F ob th e F if t h C ircuit No. 21661 T om T aylor T olg, Appellant-Appellee, — y .— T. R alph G rim es , Sheriff o f Fulton County, Georgia, Appellee-Appellant. (And Reverse Title) A PPE A L FRO M T H E U N IT E D STATES DISTRICT COURT FOR T H E K O R T H E R K DISTRICT OF GEORGIA REPLY BRIEF FOR THE APPELLANT-APPELLEE Apart from statute, the general federal rule is that a change in the law prospectively rendering that conduct in nocent which was formerly criminal abates prosecution on charges of having violated the no longer existing law. See Bell v. Maryland, 378 U. S. 226; U. S. v. Chambers, 291 U. S. 217; U. S. v. Tynen, 78 U. S. (11 Wall.) 88. In Hamm v. Rock Hill, 379 U. S. 306, the Supreme Court found that state trespass convictions not finalized at the time of the passage of the Civil Rights Act of 1964, under the force of the Supremacy Clause, were abated by the passage of that Act. Appellant submits that the effect of the Civil Rights Act of 1964 and its interpretation in Hamm is to abate any 2 pre-enactment conviction not finalized at the time that the federal law intervened. The opinion in Hamm is clear on this point. The Court extended its holding to all convictions not “ finalized,” a category intended to be far more inclusive than the di rect review cutoff insisted upon by appellees. “ Finalized,” a term twice used by the majority, is appropriately all- inclusive given the congressional emphasis upon the cessa tion of punishment expressed in §203(c). While the Court found that the general principle of abatement “ is to be read wherever applicable as part of the background against which Congress acts,” it also determined that Congress had exercised its power to abate in the Act it self. 379 U. S. at 314. Given the sufficiency of the common law doctrine of abatement to vacate pre-enactment con victions, Congress’ specific prohibition on punishment with no specific reference to abatement implies an intent to devitalize all pre-enactment convictions. It is entirely consistent with the language in Hamm and the general thrust of that opinion to include within the category of finalized convictions all except those where punishment has ceased. The Court was precise in depict ing the Act as a “ far-reaching and comprehensive scheme” sufficient to annul contrary state practices. 379 U. 8. at 314. It also commented upon the substitution of a right for a crime as a “ drastic change.” Under such circumstances where congressional and judicial sentiment are in accord, continued punishment becomes meaningless and unneces sarily vindictive. Section 203(c) of the Act forces this conclusion. The provision condemns any punishment for the exercise of 3 rights secured by the Title, not simply arresting, prose cuting, sentencing, or committing. If Congress intended to restrict the reach of this provision to a particular form of punishment, it could have easily done so. That the con gressional intent was otherwise and that an unqualified meaning of “ punishment” was intended was made clear by Judge Bell in Dilworth v. Riner, 343 F. 2d 226 (1965) where he rejected the argument that prosecution was not punishment if there was the possibility of reversal on ap peal. He emphasized that “ the right to public accommoda tions on a non-discriminatory basis is a federal right the claim to which Congress has said shall not be the subject matter of punishment,” and that individuals exercising such federal rights “may simply not be punished.” 343 F. 2d at 231. This interpretation of congressional intent is supported by the legislative history. Senator Stennis of Mississippi objected to §203(c) as it applied to the law enforcement processes of the State: This is patently an attempt to make enforcement by State judges and State law enforcement officers of State laws which may later be held to conflict with the act a violation of a federal law and to subject them to punitive Federal action. (110 Cong. Rec. 6871 (daily ed. April 7,1964).) U. S. ex rel. Randall v. U. S. Marshal for E. D. of New York, 143 F. 2d 830 (2d Cir. 1944), relied on by appellees to show that punishment attaches prior to incarceration is inapposite since there petitioner had fled the jurisdic tion and his eventual incarceration could properly be de scribed as a ministerial act. Here, however, Tolg’s right 4 to be free from incarceration is being challenged by ju dicial process. Even assuming, arguendo, that respondents are correct and commitment is a “ministerial” act, it is no less punishment within the meaning of §203 (c) since it is the primary objective of prosecution and conviction. To argue that incarceration for 18 months, the sentence given appellant Tolg, is not punishment is to completely disregard the fact that punishment is a continuous process commencing with the first imposition of the state’s will and ending with its final withdrawal. Cf. Dilworth, supra. It is not a process that can be separated into compartments. Every day spent in jail in discharge of an 18 month sen tence constitutes the irreducible fact of punishment. The Court in Hamm could not find “ persuasive reasons” to impute to Congress an intent to insulate the prosecutions under review there, noting that the supposed right to dis criminate on the basis of race had been qualified by the statute in a congressional effort to “ eradicate an unhappy chapter in our history.” 379 U. S. at 315. Appellant fur ther submits that Congress in considering the public ac commodations title of the bill was thinking not only in terms of “ rights” to be created by it, but of rights already exist ing, at the very least on the moral plane, which were to be secured by it. The House Committee Report on the Civil Rights Act, H. R. Report No. 914 (88th Cong. 1st Sess. 1963) contains passages corroborating our position. . . . Today, more than 100 years after their formal emancipation, Negroes, who make up over 10 percent of our population, are by virtue of one or another type of discrimination not accorded the rights, privi leges, and opportunities which are considered to be, and must be, the birthright of all citizens. 5 In the next paragraph, it is added: . . . A number of provisions of the Constitution of the United States clearly supply the means to “ secure these rights,” and H. R. 7152, as amended, resting upon this authority, is designed as a step toward eradicating significant areas of discrimination on a nationwide basis. It is general in application and national in scope. That this language refers, among other things, to the public accommodations problem is made clear on the same page, where it is said of the bill: . . . It would make it possible to remove the daily affront and humiliation involved in discriminatory de nials of access to facilities ostensibly open to the gen eral public . . . This application is also suggested by specific statement in the part of the Report at p. 20 dealing with public accommodations: Section 201(a) declares the basic right to equal ac cess to places of public accommodation, as defined, without discrimination or segregation on the ground of race, color, religion, or national origin. [Emphasis added.] In the Senate, a textual change, highly significant here, took place when, in §207 (b), the phrase “based on this title” was substituted for “ hereby created,” in application to the rights to public accommodation. Senator Miller of Iowa, explaining, said: 6 One can get into a jurisprudential argument as to whether the title creates rights. Many believe that the title does not, but that the rights are created by the Constitution. [Emphasis added.] (110 Cong. Rec. 12999 (daily ed. June 11,1964).) These passages make plain that the Act was passed in an atmosphere in which the right to nondiscrimination was conceived of, at least in part, as something that existed before the bill, something that was recognized, declared, and protected rather than being created by the bill. They further show that there is nothing unnatural in a construc tion of §203 (c) that extends to pre-enactment convictions now on collateral review if the right “ secured” and es pecially implemented by the law was conceived of as exist ing, at least morally, prior to its passage. In this setting, an all-inclusive reading of “ punishment” is mandatory. It is precisely these “ secured” rights which §203(c) now in sulates from punishment. To condition the effectuation of Congress’ intent not to punish the exercise of such rights on the method by which a conviction is being reviewed is to defeat the congressional intention. At least some of the “ rights” “ secured” by Title II of the Civil Rights Act were necessarily conceived as pre existing the Act, as a matter of strictest law, for Title II proscribes discrimination supported by state action (§§201a, b). Moreover, among the forms of “ state action” illegal under the Act is state “ enforcement” of “custom” (§201d(2))—terminology seemingly applicable to the case at bar. In §203(c), Congress lumps together all these “ rights” without the slightest suggestion of there being intended any distinction between them, with respect to 7 the present lawfulness of “punishing” their assertion, whenever that assertion took place. It can hardly be be lieved that Congress would have wished to present this Court with the task of unravelling and disentangling those “ rights” which did and those which in some strict sense did not antedate the Act, merely for the purpose of dis posing of residual convictions for actions now approved. It is much more reasonable to think that Congress meant to forbid “ punishment” of all actions descriptively similar to those now shielded by the Act. The facts of appellant Tolg’s case make his request for relief even more compelling. By an error unattributable to counsel or court, appellant did not learn of the denial of his post-conviction motions until April 17,1964, four days after the time for filing a bill of exceptions had expired (R. 16- 21). On April 20, 1964, the petition for writ of habeas corpus was filed (R. 110, 111). It is perfectly conceivable that in the absence of this error, review of Tolg’s convic tion would have been pending for Supreme Court review by writ of certiorari at the time of the passage of the Civil Rights Act, as were the cases considered in Hamm, supra. Surely if any case does, this case falls within the intent of Congress expressed in §203(c) and enunciated in Hammd 1 Appellant’s claim is bolstered by 28 U. S. C. §2241 (c) (3), which grants a right to a federal habeas writ where state custody violates a federal statutory or constitutional provision. As argued above (see Reply Brief for Appellant, pp. 2-4), appellant’s continued custody runs afoul of §203(c)’s prohibition on punishment and thus affords a basis for federal habeas, corpus relief. 8 CONCLUSION W herefore, it is resp ectfu lly subm itted that the ju d g m ent be low should be rev ersed and app ellan t’s con v iction vacated . Respectfully submitted, S h eila R ush Of Counsel J ack G reenberg J ames M. N abrit , III 10 Columbus Circle New York 19, New York H oward M oore, J r . D onald L. H ollowell 859% Hunter Street, N.W. Atlanta, Georgia 30314 Attorneys for Appellant-Appellee Certificate o f Service T h is is to certify that on th e ...... . day of October, 1965, I served copies of the foregoing Reply Brief for the Appellant-Appellee upon Eugene Cook, Attorney General, State of Georgia, Judicial Building, Atlanta, Georgia; William T. Boyd, Solicitor General, Atlanta Judicial Cir cuit, Fulton County Courthouse, Atlanta, Georgia; J. Rob ert Sparks, Assistant Solicitor General, Atlanta Judicial Circuit, Fulton County Courthouse, Atlanta, Georgia; and Albert Sidney Johnson, Assistant Attorney General, 132 Judicial Building, 40 Capitol Square, Atlanta, Georgia, by mailing copies thereof to the above addresses via United States mail, airmail, postage prepaid. J am es M. N abrit , III Attorney for Appellant-Appellee 38