Bratton v. City of Detroit Brief of State Labor Council and Michigan State Lodge - Fraternal Order of Police as Amicus Curiae in Supporting Granting the Writ

    Isr the

l̂ tateB CUmtrt of Appeals
F ob the  S ixth  Circuit 

No. 17,186

M ichael E ilees, T homas E ilebs, D avid E ilbes, Georgianne 
E ilees and F rancine E ilebs, by  A nna F rances (E ilees) 
A nderson, their Mother and Next Friend,

Petitioners-Appellants,
— v .—

L onnie C. Carpenter, in his capacity as Executive Director 
of the Louisville and Jefferson County Children’s Home,

Respondent-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOE THE 
WESTERN DISTRICT OF KENTUCKY, LOUISVILLE DIVISION

BRIEF FOR PE i l I IONERS APPELLANTS

J ack Greenberg 
J ames M. N abeit, III 
L eroy D. Clark 
M ichael M eltsner

10 Columbus Circle 
New York, New York 10019

J ames A . Crumlin

608 West Walnut Street 
Louisville, Ky. 40202

Attorneys for Petitioners-Appellants

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pa.

Of Counsel



1

Statement of Questions Involved

1. Whether the absence of state corrective process and 
the existence of circumstances rendering such process, as 
may exist, ineffective requires that the District Court pro­
tect petitioners’ federal constitutional rights!

The District Court answered the question—No.

Petitioners contend that it should be answered—Yes.

2. Whether petitioners are entitled to immediate relief 
on the ground that their Fourteenth Amendment rights 
to freedom from state imposed racial discrimination are 
impaired by state judicial separation of a mother and her 
five children and detention of them in foster homes and 
institutions solely because she married a Negro?

The District Court answered the question—No.
Petitioners contend that it should be answered—Yes.



I l l

I N D E X

BRIEF:

Statement of Questions Involved

Statement of Facts........................

A rgu m en t :

I. Whether the absence of state corrective proc­
ess and the existence of circumstances render­
ing such process, as may exist, ineffective 
requires that the District Court protect peti­
tioners’ federal constitutional rights?

The District Court answered the question—No
Petitioners contend that it should he answered 

—Yes .............................................................  5

II. Whether petitioners are entitled to immediate 
relief on the ground that their Fourteenth 
Amendment rights to freedom from state im­
posed racial discrimination are impaired by 
state judicial separation of a mother and her 
five children and detention of them in foster 
homes and institutions solely because she mar­
ried a Negro.
The District Court answered the question—

No.
Petitioners contend that it should be answered

—Yes .............................................................  12

B elief ........... .................. .......... ......... ...................... -..... - 15

PAGE

i

1



IV

PAGE
Table of Cases:

Bishop v. Bishop, 38 S.W.2d 657 (Ky. 1931) ............ . 8
Brown v. Board of Education, 347 U.S. 483 (1954) .... 13 
Burton v. Wilmington Parking Authority, 365 U.S.

715 ..................................................................................  13

Chamblee v. Chamblee, 248 S.W.2d 422 (Ky. 1952) .... 7
Cooper v. Aaron, 358 U.S. 1 ........................................  13

Darr v. Burford, 339 U.S. 200 (1950) .........................  11
Davis v. Jackson, 246 F.2d 268 (2nd Cir. 1957) ...........7,11
Dresner v. Stoutamire, 5th Cir., No. 21802, 8/5/64 ....... 9
Dresner v. Tallahassee, 375 U.S. 136 (1963); 378 U.S.

539 (1964) .................................. ................................... 10

Ex parte Royall, 117 U.S. 241 (1886) .............. ........... 10

Fay v. Noia, 372 U.S. 391 ............ ..... ...... ..................  11
Frisbie v. Collins, 342 U.S. 519 (1952) — .......... .....  11

Goss v. Board of Education, 373 U.S. 683 ............... . 13
Griswold v. Connecticut, 381 U.S. 479  — ................  14

In re Adoption of a Minor, 228 F.2d 446 (D.C. Cir.
1955) ....... ............................................... - ................  14

In re Neagle, 135 U.S. 1 (1890) .....................................  11
In re Shuttlesworth, 369 U.S. 35 (1962) .....— ....... 8,9,11

Johnson v. Virginia, 373 U.S. 61 .............................. . 13

McLaughlin v. Florida, 379 U.S. 184 ______ _____ ....13,14
Meyer v. Nebraska, 262 U.S. 390 ............................. . 14



V

PAGE

People ex rel. Portnoy v. Strasser, 303 N.Y. 539, 104
N.E.2d 895 (1952) .......................................................  14

Peterson v. Greenville, 373 U.S. 244 ....— ...................  13

Sharpe v. Buchanan, 317 U.S. 238 (1942) .................. 7,11
Shelley v. Kraemer, 334 U.S. 1 ............ ........................  13
Shuttlesworth v. Moore, 7 Pace Eel. L. Rep. 114 (N.D.

Ala. 3/1/62) ............... ............ ......................... .............. 9
Skinner v. Oklahoma, 316 U.S. 535 .................................  14

Thomas v. Teets, 205 F.2d 236 (9th Cir. 1953) .......... 7,11

Watson v. City of Memphis, 373 U.S. 526 ..................  13
Whitten v. Tomlinson, 160 U.S. 231 (1895) ............ 11
Wright v. Wright, 305 Ky. 680, 205 S.W.2d 491 (1947) 7

Young v. Eagen, 337 U.S. 235 (1949) .......................... 7

Statutes Involved:

Ind. Acts 1965, ch. 17, §1, p. 25 (Feb. 24, 1965) ..........  2

Ind. Acts 1965, ch. 75, §1, p. 106 (Mar. 5, 1965) ...........  2

KRS 402.020, 402.990 ........................................................  2

28 U.S.C. §2254 ...............................................................  8



V I

APPENDIX:
PAGE

Relevant Docket Entries ................................................  la

Petition for a Writ of Habeas Corpus .........................  3a

Exhibit A  Annexed to Foregoing Petition ..........  8a

Affidavit in Support of Petition for Writ of Habeas 
Corpus ............................................................................  13a

Intervening Response in Behalf of George F. Eilers, 
Father of Infant Children Herein -............................  16a

Order Dated March 25, 1966  ...................................... 19a

Order Dated March 29, 1966  ........................................ 20a

Notice of Appeal ............................................................. 21a

Order Dated April 1, 1966 ......... ....... ....... ...................  22a

Memorandum in Support of Motion to Alter Order .... 23a

Motion to Alter Order ................................      24a



I n th e

Mtttfrft Elates OInurl of Appeals
F oe the S ixth  C ircuit

No. 17,186

M ichael E ilees, T homas E ilees, D avid E ilers, Georgianne 
E ilers and F rancine E ilees, by  A nna F rances (E ilees) 
A nderson, their Mother and Next Friend,

Petitioners-Appellants,
,— y .-----

L onnie C. Carpenter, in his capacity as Executive Director 
of the Louisville and Jefferson County Children’s Home,

Respodent-Appellee.

appeal from the united states district court for the

WESTERN DISTRICT OF KENTUCKY, LOUISVILLE DIVISION

BRIEF FOR PETITIONERS-APPELLANTS

Statement of Facts

This is an appeal from the denial of a Writ of Habeas 
Corpus by the United States District Court for the Western 
District of Kentucky, in which Mrs. Anna Frances An­
derson (formerly Mrs. Anna Eilers), sought to secure 
custody of her five minor children, Michael Eilers, Thomas 
Eilers, David Eilers, Georgianne Eilers and Francine 
Eilers. The children are being held by the appellee pur­
suant to a judgment of the Circuit Court of Jefferson 
County, Kentucky, which appellants assert is void under



2

the Fourteenth Amendment to the United States Consti­
tution.

Mrs. Anna Frances (Eilers) Anderson was granted a 
divorce from George F. Eilers by the Jefferson County 
Circuit Court on June 14, 1963, in Louisville, Kentucky 
on the grounds of his cruel and inhuman treatment (8a). 
Mrs. Anna Anderson and Mr. George Eilers are white 
persons and the five petitioners-appellants are children of 
this marriage (8a, 9a). Mrs. Anderson and Mr. Eilers 
had agreed that she would have custody over the five 
children when the divorce was granted in 1963 (8a).

On January 28, 1964, Mrs. Anderson married Marshall 
Anderson, a Negro, in the State of Illinois (3a, 4a). Upon 
the Andersons’ return to Louisville, Kentucky, Mr. George 
Eilers filed a complaint in the Circuit Court on February 
13, 1964, to secure custody of the five children. The basis 
of Mr. Eilers’ complaint was that he objected to his children 
being raised in the home of a colored man and he further 
claimed that the Anderson’s marriage was void under Ken­
tucky’s miscegenation law (K.R.S. 402.020, 402.990) since 
they were of different races (4a, 9a).1

In a separate proceeding the Jefferson County Juvenile 
Court during June 1964 granted the petition of Mr. George 
F. Eilers to secure custody of the two oldest children, 
Georgianne and Michael. The two children had testified 
in that proceeding that they had been given an unjusti­
fied whipping and strict punishment by Mr. Anderson and 
that they preferred to be with Mr. Eilers.

On September 29, 1964, after full trial, the Circuit Court 
entered a judgment depriving Mrs. Anderson of custody

1 Mr. and Mrs. Anderson now reside in Indianapolis, Indiana. Indiana 
repealed its miscegenation laws in 1965. See Indiana Acts 1965, e. 17, 
§1, p. 25 (February 24, 1965) and ch. 75, §1, p. 106 (March 5, 1965).



3

of her children on the gronnd that raising them “in a 
racially mixed atmosphere will per se, indoctrinate them 
with a psychology of inferiority” (11a). The court found 
Mr. George Eilers unfit to have custody of any of the 
children noting* that the failure of the Eilers’ marriage 
was occasioned by his “ excessive drinking, cruelty, gam­
bling, and association with women other than his wife” 
(9a).

The five children were placed in the custody of the 
Louisville and Jefferson County Children’s Home of which 
the respondent-appellee Lonnie C. Carpenter is the Ex­
ecutive Director (3a). The Louisville and Jefferson County 
Children’s Home is a public institution which received 
juveniles who have been adjudged delinquent, neglected, 
or abandoned children. Two of the children (Michael and 
Thomas) are now resident in the institution. The re­
spondent placed the other three children (Georgianne, 
Francine and David) in three separate foster homes.

An appeal from the September 29, 1964, judgment of 
the Jefferson County Circuit Court was dismissed by the 
Court of Appeals of Kentucky on the grounds that it was 
untimely. The appeal was taken on February 25, 1965, 
and the order of the Court of Appeals of Kentucky dis­
missing the appeal was issued eleven months later on 
January 11, 1966 (5a). The Kentucky Court of Appeals 
had previously granted Appellants’ Motion to expedite 
the appeal.

On March 2, 1966, appellants filed a Writ of Habeas 
Corpus in the United States District Court for the Western 
District of Kentucky (la). Mr. George Eilers moved to 
intervene in this proceeding* (16a). On March 25, 1966, 
after hearing oral argument from appellants, the appellee, 
and the intervenor, Judge Henry L. Brooks of the court



4

below denied the application for Writ of Habeas Corpus 
(la, 19a, 20a). He stated from the bench that appellants 
had not exhausted their state remedies and stated orally 
but not in the written order that the claims presented in 
the petition did not present a federal question. The court 
noted that the appellants had filed a petition for Writ 
of Habeas Corpus in the Jefferson County Circuit Court 
which was to be heard on April 13, 1996,2 and the Federal 
Writ of Habeas Corpus was denied pending the exhaustion 
of this remedy. This appeal was noted March 31, 1966, 
from the order dismissing the Petition for Writ of Habeas 
Corpus. As the written order did not mention the oral 
ruling by the court below that the petition did not present 
any federal question and there was no court reporter at 
the hearing, appellants filed a motion to supplement the 
order with this additional conclusion of law on April 1, 
1966 (2a). That motion has not been decided.

2 On April 13, 1966, the Jefferson County Cireuit Court denied the 
Petition for Writ o f Habeas Corpus. The Cireuit Court Judge, Honorable 
Lyndon Schmid, reasoned that since the court had assumed control oyer 
the custody of the children, the court was the real Respondent “ and the 
court will not issue a Writ of Habeas Corpus against itself.”  In further 
amplification of his order, the Judge said that where custody of children 
were concerned, the Fourteenth Amendment to the Constitution o f the 
United States did not apply. An appeal of this order to the Court of 
Appeals of Kentucky was filed on April 27, 1966. File No. S-41-66. The 
clerk of the court advised that appellants brief was due in 40 days and 
appellees’ 40 days thereafter.

In addition, both Mr. George Eilers and Mrs. Anderson have filed supple­
mental complaints in the original divorce proceeding in the Circuit Court 
o f Jefferson County. Both seek custody of the children based on asserted 
changed circumstances since the September 29, 1964, order depriving 
both parents of custody, and Mrs. Anderson also contends that her federal 
Fourteenth Amendment rights were violated by that order. Judge Schmid 
heard evidence in this matter on April 13, 1966, and scheduled a further 
hearing on May 4, 1966.



5

A R G U M E N T

I.
Whether the absence o f state corrective process and 

the existence o f circumstances rendering such process, 
as may exist, ineffective requires that the District Court 
protect petitioners’ federal constitutional rights?

The District Court answered the question— No.
Petitioners contend that it should be answered— Yes.

Mrs. Anna Anderson, deprived of the custody and com­
panionship of her minor children by order of the Circuit 
Court of Jefferson County, Kentucky, entered September 
29, 1964 (8a), has ever since that date sought to obtain a 
decision of her claim that she was thus denied rights pro­
tected by the Federal Constitution against racial discrimi­
nation imposed by a state. Her direct appeal from the 
order denying her custody (which was founded solely on 
the fact that Mrs. Anderson who is white had married a 
Negro) was dismissed as untimely by the Kentucky Court 
of Appeals on January 11, 1966.3 The highest court of 
Kentucky made no ruling on the federal constitutional 
issues.

Thereafter, petitioner filed a state habeas corpus pro­
ceeding in the Circuit Court of Jefferson County. The 
several judges of the Circuit Court deferred to Judge 
Schmid who handled the prior proceedings (13a). Judge 
Schmid, on March 1, 1966, advised petitioner’s counsel 
that the petition would be denied, hut not until April 13, 
1966 (14a), the date set for hearing supplemental custody 
proceedings in the original divorce action. Mrs. Anderson 
then on March 2, 1966, filed the petition for habeas corpus

3 The arguments relating to timeliness of the appeal involved which of 
several orders of the Circuit Court between September 29, 1964, and Janu­
ary 25, 1965, were properly appealable, and related issues.



6

in the court below, reciting the course of litigation in the 
state courts and asserting that relief should be granted 
because of continuing irreparable harm and the absence 
of adequate state corrective process.

The Court below, by order of March 29, 1966, denied 
relief, noting that the state habeas proceeding was sched­
uled for April 13, 1966. Petitioners noted appeal to this 
Court on March 31, and the court below signed a certificate 
of probable cause.

Subsequently, Judge Schmid, as he had promised, denied 
the state habeas corpus petition without hearing evidence, 
on April 13,1966.4 An appeal from that order was promptly 
filed in the Kentucky Court of Appeals (File No. S-41-66) 
and is now pending.

Meanwhile the supplementary custody hearing in the 
original divorce case began on April 13, 1966. and the hear­
ing was continued for the taking of further evidence May 
4, 1966. In that proceeding Judge Schmid has limited the 
scope of the inquiry to matters occurring since the Septem­
ber 29, 1964, order depriving both Mr. George Eilers and 
Mrs. Anna Anderson of custody of the children.

4 Judge Schmid on April 13, 1966, rejected the Fourteenth Amendment 
claims stating variously:

“ As far as the Fourteenth Amendment feature o f this is concerned, 
these children are wards of the Court, and so long as they are wards 
of the Court in this technical situation the Fourteenth Amendment 
will not lie.”

“ I reject the Fourteenth Amendment argument for the simple 
reason that these children are wards of the Court.”

* # # #
“As far as the Constitutional rights of either of them is concerned, 

I ’m ruling on the basis that the Court has their custody at this time 
and until the Court divests itself o f their custody, the Habeas Corpus 
will not lie, regardless of anybody’s Constitutional rights.”

(The quotations are from pages 5, 6, and 7 of the transcript of the state 
habeas corpus hearing.)



7

We submit that neither of the two pending state pro­
ceedings affords any adequate and expeditious remedy. The 
exhaustion doctrine “presupposes that some adequate state 
remedy exists.” Young v. Ragen, 337 U.S. 235, 238-239 
(1949). The state habeas corpus remedy was shown to the 
court below to be inadequate, by affidavit of counsel indi­
cating that the state trial judge had determined on March 
1 to deny the writ on April 13, 1966 (14a). Subsequent 
events (which this Court is entitled to consider, see Sharpe 
v. Buchanan, 317 U.S. 238 (1942); Davis v. Jackson, 256 
F.2d 268 (2nd Cir. 1957); Thomas v. Teets. 205 F.2d 236 
(9th Cir. 1953)), have confirmed that the state habeas 
corpus remedy was futile at the trial level. The pending 
appeal in the state habeas case offers no adequate remedy 
either, because it is unclear whether state habeas corpus 
is available to collaterally attack the prior custody deter­
mination of the Circuit Court on federal constitutional 
grounds. The trial court has ruled that the Fourteenth 
Amendment did not apply to minor wards of the court. 
Kentucky precedent authorizing the use of habeas corpus 
to collaterally attack void judgments seems to be confined 
to criminal cases. Habeas corpus has been employed and 
granted in Kentucky child custody cases, but usually in 
the context of securing compliance with—rather than void­
ing of—prior court orders. Cf. Wright v. Wright, 305 Ky. 
680, 205 S.W.2d 491 (Ky. 1947); Chamblee v. Chamblee, 
248 S.W.2d 422 (Ky. 1952). Even if petitioner prevailed in 
the state habeas appeal, she might obtain only a remand 
for the taking of evidence and no final resolution of the 
issues. Thus there is no assurance of expeditious decision 
of the federal claims in the state habeas corpus proceeding.

The other possible remedy being attempted is also of 
doubtful adequacy. The supplemental complaint procedure 
is apparently limited to changed factual conditions oc­



8

curring after the original custody decree which is regarded 
as res judicata. Bishop v. Bishop, 38 S.W.2d 657 (Ky. 1931). 
The availability of this procedure to test the lawfulness 
of the original custody decree is in doubt. In the pending 
proceeding Judge Schmid of the Jefferson Circuit Court 
has repeatedly excluded evidence of matters which took 
place before the decree.

Thus it is not clear whether the state courts will even 
entertain the tendered federal constitutional claims in 
either of the pending state proceedings. In this context the 
principles of comity embodied in 28 U.S.C. §2254 do not 
require federal abstention. Mrs. Anderson has not bypassed 
the state courts; they have had numerous opportunities to 
pass on her federal claims.

This is an emergency matter involving continuing ir­
reparable harm each day that Mrs. Anderson is deprived 
of the comfort of her children and each day that they are 
denied their mother’s care. Every day they are separated 
from their mother the children are likely to become alien­
ated from her and to form new attachments to foster 
parents or others. Every day of continuing violation of 
petitioners’ constitutional rights is a day of continuing 
irreparable harm.

This situation is comparable to those cases where sub­
stantial federal rights will be denied by the refusal of bail, 
and federal habeas corpus courts have stepped in to re­
lease a petitioner on bail without awaiting state disposi­
tion of his claim. See In re Shuttlesworth, 369 U.S. 35 
(1962). Shuttlesworth was convicted of disorderly conduct 
for testing bus segregation in Birmingham and sentenced 
to pay $100 and costs or serve 82 days. His conviction 
was affirmed without consideration of the merits because 
his appeal was untimely, and the United States Supreme



9

Court denied certiorari. He sought and was denied federal 
habeas corpus in the Northern District of Alabama (on 
the ground he had forfeited his rights), and was denied 
a certificate of probable cause by Judge Rives of the Fifth 
Circuit (on the ground that state collateral relief appeared 
to be available). In a per curiam order the Supreme Court 
remanded to the district court to hold the matter while 
petitioner pursued his state remedies, including a state 
court application for bail pending disposition of the claim. 
The Supreme Court then added (369 U.S. at 35):

In the event of failure to secure such relief, or to 
secure admission to bail pending such relief within 
five (5) days from the date of application for bail, 
petitioner may, upon appropriate showing, proceed on 
this application in the United States District Court 
which may then consider all state remedies exhausted 
and proceed to hear and determine the cause, including 
any application for bail pending that court’s final dis­
position of the matter. The Clerk is directed to issue 
the judgment forthwith. (Emphasis added.)

Applications for bail were made to and denied by the state 
court of appeals and the state supreme court on the day 
following the Supreme Court’s order, and thereafter on 
the same day the federal district court “pursuant to the 
Mandate and direction of the Supreme Court of the United 
States,” fixed bail.5

The United States Court of Appeals for the Fifth Cir­
cuit granted similar relief in Dresner v. Stoutamire, 5th 
Cir., No. 21802, 8/5/64, after ten freedom riders were 
convicted under a Florida unlawful assembly law, their 
convictions were affirmed, and the United States Supreme

5 Shuttlesworth v. Moore, 7 Race Rel. L. Rep. 114, 121 (N.D. Ala. 
3 /1 /62).



1 0

Court dismissed the writ of certiorari as improvidently 
granted because of precedural lapses (Dresner v. Talla­
hassee, 375 U.S. 136 (1963); Id., 378 U.S. 539 (1964)). 
"When a federal district court denied habeas relief on the 
ground that state remedies had not been exhausted, the 
Fifth Circuit heard an expedited appeal and issued the 
following order:

Before B ives and J ones, Circuit Judges, and S impson , 
District Judge.

Per Curiam: The District Court is directed to
modify its order so as to provide as to each petitioner 
that if such petitioner makes application for habeas 
corpus to a state court of competent jurisdiction, and 
if such state court fails either to order the discharge 
of such petitioner from custody or his release from 
custody upon nominal bail within three (3) days from 
the date of filing of such application, any further delay 
will render state corrective process ineffective to pro­
tect the rights of such petitioner, and the District 
Court will upon the request of any such petitioner 
forthwith proceed to a hearing of the application on 
its merits, and further that the District Court will 
retain jurisdiction until the termination of any such 
state court habeas corpus proceeding, and if such peti­
tioner is denied relief or the proceeding unreasonably 
delayed, the District Court will upon request of such 
petitioner proceed to a hearing on the merits.

With the modification so directed, the judgment of 
the District Court is A ffirmed.

It is submitted that the instant case, involving as it does 
“ special circumstances requiring immediate action” {Ex 
parte Royall, 117 U.S. 241, 253 (1886)) should be deter­
mined by the federal courts without further delay. The 
“ special circumstance” proviso has been preserved by the



11

Supreme Court in all the years since Royall, supra, and 
indeed the rule has grown progressively more liberal. 
See In Re Shuttlesworth, 369 U.S. 35; also Barr v. Burford, 
339 U.S. 200, 210 (1950), overruled on other grounds in 
Fay v. Noia, 372 U.S. 391, 437 (1963); Frisbie v. Collins, 
342 U.S. 519, 521 (1952); Whitten v. Tomlinson, 160 U.S. 
231, 241 (1895); In re Neagle, 135 U.S. 1 (1890). In view 
of Mrs. Anderson’s prolonged efforts to obtain a state 
court ruling on her federal constitutional claim, and the 
emergency nature of litigation involving custody of small 
children separated from their mother this Court should 
entertain and decide the merits of her claim on this appeal. 
Furthermore, it is submitted that this Court should decide 
the merits in light of the circumstances relating to ex­
haustion prevailing at the time this Court is asked to 
grant the writ, and not merely the circumstances at the 
time the court below ruled. Sharpe v. Buchanan, 317 U.S. 
238 (1942); Davis v. Jackson, 246 F.2d 268 (2nd Cir. 1957); 
Thomas v. Teets, 205 F.2d 236 (9th Cir. 1953).

To remit petitioners to their state remedies is to sub­
ject them not only to continued denial of a plain constitu­
tional right but to perhaps years of futile state court 
litigation. In the face of their earnest, but unsuccessful, 
efforts to obtain a state decision, such a result would elevate 
the exhaustion doctrine to a preeminence its history does 
not support and exalt form over substance. The doctrine 
was never meant to crush litigants with substantial federal 
constitutional claims under the weight of unmanageable 
state procedural obstacles. Here, reference to state 
“process” can only mean abdication of clear federal rights, 
rights as to which each day denied means another day in 
which five children are kept from their mother, and con­
fined in foster homes and state institutions, because of her 
husband’s race.



12

II.
Whether petitioners are entitled to immediate relief 

on the ground that their Fourteenth Amendment rights 
to freedom from state imposed racial discrimination 
are impaired by state judicial separation o f a mother and 
her five children and detention o f them in foster homes 
and institutions solely because she married a Negro.

The District Court answered the question-—No.
Petitioners contend that it should be answered— Yes.

The judgment under which Mrs. Anderson’s children are 
being held by the Louisville Juvenile authorities is patently 
unconstitutional as an unlawful state judicial enforcement 
of racial discrimination. Judge Schmid’s order and opinion 
of September 29, 1964, (8a-12a) deprives Mrs. Anderson of 
the opportunity to care for her five children and deprives 
the children of her care solely on the ground that she mar­
ried a Negro. George Eilers, the former husband of Mrs. 
Anderson, sought relief in the Circuit Court of Jefferson 
County solely on the gonnds of race and because he objected 
to his children “being reared in the home of a colored man” 
(9a), and the Circuit Court acted solely on that ground. 
The order of September 29, 1964, stated, inter alia (11a) :

The Court is compelled to take notice of the racial 
unrest prevalent at this time, and of the struggle on 
the part of the colored race for equality with the white 
race. Of course, we realize that this “ equality” is a 
relative word and we use the phrase merely to call at- 
tion to the fact that in rearing these children in a 
racially mixed atmosphere will per se indoctrinate 
them with a psychology of inferiority. We think that



13

subjecting these children to such a hazard would be in 
negation of their “best interests.”

This ruling is in the teeth of Brown v. Board of Educa­
tion, 347 U.S. 483, and a multitude of rulings since Brown 
which have emphasized over and over again in many 
contexts that agencies of the states violate the due process 
and equal protection clauses of the Fourteenth Amendment 
when they compel racial segregation and discrimination.6

Shelley v. Kraemer, 334 U.S. 1, and McLaughlin v. 
Florida, 379 U.S. 184, control this case. Shelley makes it 
plain that state equity courts may not intervene and use 
their powers to require racial discrimination, and that 
the Fourteenth Amendment is as much a protection against 
discriminatory judicial action as it is against legislative or 
executive action. “But for the active intervention of the 
state courts, supported by the full panoply of state power,” 
these children would have been free to remain with Mr. 
and Mrs. Anderson. Shelley v. Kraemer, 334 U.S. at 19. 
But here the state has “made available . . . the full coercive 
power of government” in support of George Filers’ racial 
objection to his former wife’s marriage to a Negro {ibid.).

Mrs. Anderson was denied custody because she married 
a Negro and for that reason alone. If she had married a 
white person the rule would have been otherwise. Because 
this rule “applies only to a white person and a Negro who 
commit the specified acts and because no couple other than 
one made up of a white and a Negro is subject” to it, the

6 See, for example, Cooper v. Aaron, 348 U.S. 1 (schools); Goss v. 
Board of Education, 373 U.S. 683 (pupil transfer p lan ); Watson v. City 
of Memphis, 373 U.S. 526 (public parks); Johnson v. Virginia, 373 U.S. 
61 (courtrooms) ; Burton v. Wilmington Parking Authority, 365 U.S. 715 
(restaurants in public buildings) ; Peterson v. Greenville, 373 U.S. 244 
(restaurants).



14

rule is “a denial of the equal protection of the laws guaran­
teed by the Fourteenth Amendment.” McLaughlin v. 
Florida, 379 U.S. 184. This interference with the sanctity 
of the home and the marriage relationship (Grisivold v. 
Connecticut, 381 U.S. 479), penalizing a marriage by de­
priving a mother of her five children, is an even more 
serious punishment than the minor criminal penalties im­
posed in McLaughlin, supra. The right to marry, establish 
a home and bring up children is a protected liberty under 
the Fourteenth Amendment. Meyer v. Nebraska, 262 U.S. 
390, 399; Skinner v. Oklahoma, 316 U.S. 535, 541.

In a case similar to this one in important respects, 
the District of Columbia Circuit reversed a trial judge’s 
determination that a white child could not be adopted by 
its natural (white) mother and her Negro husband. In re 
Adoption of a Minor, 228 F.2d 446 (D.C. Cir. 1955). See 
also, People ex rel. Portnoy v. Strasser, 303 N.Y. 539, 
104 N.E.2d 895 (1952), where New York’s highest court 
reversed a judgment denying custody of a white child to 
its mother whose second husband was a Negro.

The order of the court below contains no expression 
on the merits of this federal constitutional issue, and no 
ruling that the petition for habeas corpus failed to state 
a claim that the children were being held in violation of 
federal law. Indeed, the order entered denied habeas 
corpus “without prejudice” (20a). Nevertheless, the dis­
trict judge after receiving briefs and arguments on the 
merits stated orally during the hearing that the petition 
failed to raise a substantial federal question. Because the 
district judge has already expressed the view that peti­
tioners are not entitled to relief on the merits, because 
of the continuing irreparable harm and urgent nature of 
the case, and because of the clarity of the deprivation of



15

petitioners’ rights under applicable United States Supreme 
Court holdings, it is necessary and appropriate that this 
Court fully dispose of all issues in the case.

RELIEF

The rights of the mother and children involved in this 
case are fully established by the records and papers in the 
Appendix to this brief. There is no need for the taking of 
evidence on a remand. These children were taken from 
their mother upon a rule of law enunciated by the Jeffer­
son County Circuit Court which established a “per se” 
doctrine of disability based solely upon the fact of race 
or color. This doctrine of the Jefferson Circuit Court as 
stated in its opinion of September 29, 1964, obviously is 
unconstitutional on its face and should be speedily de­
clared so, for it has already caused untold hardship to 
these children, their mother and her husband. Each day 
of its continued illegal vitality serves only more thoroughly 
to ruin the lives and youth of these children already too 
long and too harshly ensnared by its provisions.

Accordingly, this Court should:

(1) Overrule, reverse, and vacate the order of the dis­
trict court entered on March 29, 1966.

(2) Declare the order of the Jefferson Circuit Court 
of September 29, 1964, void because in violation of the 
Fourteenth Amendment to the Constitution of the United 
States.

(3) Remand the cause to the district court with a man­
date of the district court requiring* that it (a) immediately 
issue its Writ of Habeas Corpus, (b) establish a return



16

date for the writ of no more than five days, and (c) upon 
that return release the children into the custody of their 
mother Mrs. Anna Anderson.

Respectfully submitted,

J ack Greenbebg 
J ames M. N abbit, III 
L eboy D. Clabk 
M ichael M eltsneb

10 Columbus Circle 
New York, New York 10019

J ames A . Cbumlin

608 West Walnut Street 
Louisville, Ky. 40202

Attorneys for Petitioners-Appellants

A nthony G. A mstebdam 
3400 Chestnut Street 
Philadelphia, Pa.

Of Counsel



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