Tolg v. Grimes Reply Brief for Appellant-Appellee

    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