Gingles v. Edmisten Memoranda File Index

    BRIEF AND APPENDIX ON BEHALF OF APPELLANT

In The
UNITED STATES COURT OF APPEALS 

For The Fourth Circuit

No. 10,261

C O M M O N W E A LTH  OF V IR G IN IA ,
Appellee,

vs,

W IL L IE  M. M OORE, 
Appellant.

On Appeal from the United States District Court 
for the Eastern District of Virginia

S. W . T ucker 
H enry  L. M a rsh , III 
W illard  H. D ouglas, Jr. 

214 East Clay Street 
Richmond, Virginia

R. H. Cooley, Jr .
133 Harrison Street 
Petersburg, Virginia

Attorneys for Appellant

October 29, 1965

The Press e f Lawyers Printing Company, incorporated, Richmond, Virginia 23207



TABLE OF CONTENTS

Pa««-

Statement of the Case ........-............ -....... -.................... ....- 1

The Questions Involved ................................... *.............— 2

Statement of the Facts .......................................................  3

Argument ................................................... -......... ......... .......  6

I. The State Prosecution Was For An Act Un­
der Color O f Authority Derived From A  Law- 
Providing For Equal Rights And Was For 
Refusing To Do An Act On The Ground 
That It Would Be Inconsistent With Such 
L a w .................................................................. ......  6

A. Defendant Is Being Prosecuted For An 
Act Under Color O f Authority Derived 
From A Law' Providing For Equal
Rights ........................... ....................... ........  7

B. Defendant Is Being Prosecuted For Re­
fusing To Do An Act Inconsistent With 
A  Laur Providing For Equal Rights ----  14

II. Defendant Cannot Enforce In The State 
Courts His Rights Under Due Process And 
Equal Protection Clauses O f The Fourteenth 
Amendment ................................. ........... ...........  16



Page

III. Section 1443(1) Provides For Removal O f A  
State Prosecution Under Virginia Statutes 
When Such Statutes As Applied Deny De­
fendant’s Rights Under The Civil Rights Act
O f 1964 ................................................................  19

Conclusion ............ .............................................................. . 20

TA B L E  OF CITA TIO N S 

Cases

Bailey v. Commonwealth, 193 Va. 814 (1952), 71 S.E.
2d 368 .................................................................. 16, 17, 18

Bailey v. Smyth, 220 F. 2d 954 (4th Cir. 1955) ..16, 17, 18

Commonwealth v. Wallace, Crim. No. 7429 (E.D . Va., 
April 10, 1964) ............................................................ 16

Hamm v. Rock H ill,........U .S........... , 13 L.ed 2d 300 ..12, 14

Kentucky v. Powers, 201 U.S. 1 (1906) .......................17

New York v. Galamison, 342 F 2d 255 (2d Cir.), cert, 
denied. 380 U.S. 977 (1965) .......................... .9, 10, 11

F 2d ........ (5 thPeacock v. City o f Greenwood, 
Cir., June 22, 1965) ........ . 19



Page

Rachel v. Georgia, 342 F 2d 336 (5th Cir. 1965), re­
hearing denied, 343 F 2d 909 (5th Cir. 1965), peti­

tion for certiorari filed, 33 U.S. Law Week 3391 
(U .S. May 15, 1965) ............... ............................. .9, 19

Other Authorities

Code of Georgia:
Section 26-3005 ............................ ........................... . 20

Code o f Virginia, 1950, as amended:
Section 18.1-120 ....................................... ....... ..........  19

Section 18.1-254 .................................... ................ 19

Constitution of Virginia:
Section 8 ............................................. ............. ........ . 5

United States Code:
Title 28 Section 1443(1) ________________3, 6, 16, 20

Title 28 Section 1443(2) ............................ .......6, 10, 11

Civil Rights Act of 1964:
Sections 201, 202, 203 ................................. ..3, 12



INDEX TO APPENDIX

Page

Petition for Removal ................ .................................. App. 1

Warrant As Originally Issued ....................... ...... ......App. 7

Warrant As Amended ......................... .................. App. 7, 8

Motion To Remand ............ ....... ............................ App. 8, 9

Opinion From The Bench ..................................App. 10, 11

Order O f Remand ......................................... ..............App. 12

Notice O f Appeal ................................................. App. 13, 14



In The
UNITED STATES COURT OF APPEALS 

For The Fourth Circuit

No. 10,261

C O M M O N W E A LTH  OF VIRG IN IA , 
Appellee,

vs.

W IL L IE  M. M OORE 
Appellant.

On Appeal from the United States District Court 
for the Eastern District Of Virginia

BRIEF ON BEHALF OF APPELLANT

STATEMENT OF THE CASE

On April 7, 1965, pursuant to Title 28 United States 
Code, Section 1443, Willie M. Moore filed a petition in 
the United States District Court for the Eastern District 
o f Virginia, Richmond Division, for removal o f a certain



2

criminal prosecution then pending against him in the Circuit 
Court o f the County o f Sussex, in the State of Virginia, 
which petition, by leave of Court, was subsequently 
amended (A . 1-6). On May 28, 1965, the Commonwealth 
o f Virginia filed a motion to remand which (1 ) challenged 
the legal sufficiency of the factual allegations of the pe­
tition as amended and (2) denied several of those allega­
tions (A . 8-9). Having heard argument of counsel on the 
question of the sufficiency of the allegations, the District 
Court, in an opinion from the bench, held that the petition 
for removal was not sufficient (A . 10-11); and, by order 
entered on August 24, 1965, remanded same to the Circuit 
Court o f the County o f Sussex, meanwhile suspending the 
execution of its order o f remand pending the disposition of 
this appeal (A . 12). Notice o f appeal was filed August 30, 
1965 (A . 13).

TH E  QU ESTION S IN V O LVE D

I

Whether §§ 201, 202 and 203 o f the Civil Rights Act 
o f 1964 are laws providing for equal rights within the 
meaning o f the Removal Statutes.

II

Whether a Negro who refused to accept service in a 
restaurant covered by the Civil Rights Act o f 1964 when, 
solely because of his race, he was denied the full and equal 
enjoyment o f such service, was acting under the color of 
authority of §§201, 202 and 203 o f said Civil Rights Act.



3

11

Whether §§ 201, 202 and 203 of the Civil Rights Act 
o f 1964 give a Negro customer (o f  a covered establish­
ment) who, solely because o f his race, was refused ice 
for a warm soda, the right to refuse to accept his meal.

IV

Whether the defendant can enforce in the State courts 
his rights under the due Process and Equal Protection 
Clauses of the Fourteenth Amendment.

V

Whether Section 1443 (1 ) provides for removal o f a 
state prosecution under Virginia Statutes when such 
statutes as applied deny defendant’s rights under the Civil 
Rights Act o f 1964.

STATEMENT OF FACTS

Davis Truck Terminal, located in Sussex County on 
Highway US 301, is engaged in selling food for con­
sumption on the premises and serves and offers to serve 
interstate travelers; and a substantial portion o f the food 
which it serves and gasoline and other products which it 
sells has moved in commerce. Appellant, hereinafter re­
ferred to as defendant, is a Negro and a resident o f Din- 
widdie County, Virginia.



4

In the early morning of March 7, 1965, the defendant 
entered Davis Truck Terminal and there ordered food and 
drink. The waitress brought the food and drink to the 
counter where defendant was seated, the drink being in a 
bottle.

Defendant asked the waitress to provide a glass o f ice 
because the drink was warm. Solely because the defendant 
is a Negro, the waitress refused to do so. Another restau­
rant employee offered to get a glass of ice for defendant 
but when the waitress expressed her objections the other 
restaurant employee declined to interfere. Defendant did 
not consume the food and drink because he was not pro­
vided a glass o f ice. He refused to pay for the food and 
drink and left the restaurant. Before he could drive away 
he was accosted by the proprietor and subsequently arrested. 
(A . 3)

The warrant as it was issued on the complaint and in­
formation o f I. T. Davis, the proprietor o f Davis Truck 
Terminal, charged that the defendant

“ did on the 7 day of March, 1965: Unlawfully fail­
ing to pay for meal at his place o f bmness”  (A . 7).

Subsequently, when the case was tried in the County 
Court, the Court permitted the warrant to be amended to 
charge that the defendant

“ did on the 7 day of March, 1965: Unlawfully fail­
ing to pay for meal at his place o f bigness and com­
mitting acts in breach o f the peace and otherwise 
acting in a disorderly manner”  (A . 7-8).



5

Prior to the filing of the removal petition, the defendant, 
a Negro, faced prosecution in the Circuit Court o f the 
County o f Sussex on a misdemeanor charge for which is 
provided a maximum penalty of a $500.00 fine and a jail 
sentence not exceeding one year. Section Eight o f the 
Constitution o f Virginia guarantees to a defendant facing 
such a charge the right to a trial by jury.

In 1950, according to the United States Census o f Popu­
lation for that year, there were 6,868 persons twenty-one 
years o f age and over residing in Sussex County of which 
number 2,834 were white persons and 4,034 were non-white 
persons or Negro. In 1960, according to the United States 
Census o f Population for that year, there were 6,368 per­
sons twenty-one years of age and over residing in the 
County of Sussex of which number 2,662 were white 
persons and 3,706 were non-white persons or Negroes 
(A . 4 ).

It is and for many years has been the custom, usage and 
practice o f the officials o f the Circuit Court o f the County 
of Sussex charged with duties pertaining to jury selection 
to deliberately limit the number o f Negroes who may be 
summoned for jury duty so that never has the concurrence 
o f a Negro member o f a grand jury [seven members] been 
essential to an indictment, and seldom, if ever, have more 
than four Negroes been included in a panel o f twenty from 
which each side strikes four to leave a jury o f twelve for 
the trial o f a felony charge, and seldom, if ever, have more 
than three Negroes been included in a panel of eleven from 
which each side strikes three to leave a panel o f five for the



6

trial of a misdemeanor charge. Such custom, usage and 
practice o f deliberate limitation would enable the prosecutor 
peremptorily to exclude all Negroes from the jury by which 
petitioner would be tried in said Circuit Court (A . 4-5).

ARGUMENT

I

The State Prosecution Was For An Act Under Color 
Of Authority Derived From A Law Providing For 
Equal Rights And Was For Refusing To Do An 
Act On The Ground That It Would Be Inconsistent 
With Such Law

This is an appeal from an order o f the District Court 
sustaining the motion of the Commonwealth of Virginia to 
remand to the State court the criminal prosecution pending 
against the defendant. The petition for removal had alleged 
that removal jurisdiction was based on both paragraphs 
(1 ) and (2 )  o f § 1443 of Title 28 United States Code. 
The District Court remanded the case on the ground that 
§ 1443 afforded no jurisdictional basis for removal.

The removal statute provides as follows:

“ § 1443. Civil rights cases

“ Any of the following civil actions or criminal 
prosecutions, commenced in a State court may be re­
moved by the defendant to the district court of the 
United States for the district and division embracing



7

the place where it is pending:

“ (1 )  Against any person who is denied or cannot 
enforce in the courts o f such State a right under any 
law providing for the equal civil rights o f citizens of 
the United States, or o f all persons within the juris­
diction thereof;

“ (2 )  For any act under color o f authority derived 
from any law providing for equal rights, or for re­
fusing to do any act on the ground that it would be 
inconsistent with such law.”

In order to assert a right o f removal under subsection 
(2 ), the defendant was required to allege that he was being 
prosecuted:

(1 )  for an act under color of authority derived 
from any law providing for equal rights, or (2 ) for 
refusing to do any act on the ground that it would 
be inconsistent with [any law providing for equal 
rights].

The fact shown by the instant petition clearly demon­
strate that the defendant met both o f the alternatives 
requisite to removal under subsection (2).

A

Defendant Is Being Prosecuted For An Act Under 
Color Of Authority Derived From A Law Providing 
For Equal Rights



8

Has the defendant alleged that he is being prosecuted 
for an act under color o f authority derived from a law 
providing for equal rights?

The following allegations contained in Section II of the 
removal petition demonstrate that Davis Truck Terminal 
is a place of public accommodation as defined by Sections 
201 (b ) (2 ) and (c )  of the Civil Rights Act o f 1964:

“ Davis Truck Terminal, located in Sussex County on 
Highway US 301, is engaged in selling food for con­
sumption on the premises and serves and offers to 
serve interstate travelers; and a substantial portion 

: ■ o f the food which it serves and gasoline and other
products which it sells has moved in commerce.”

Section 201 (a ) o f the Civil Rights Act provides that the 
defendant is entitled to the full and equal enjoyment o f the 
goods and services o f the Davis Truck Terminal “ without 
discrimination . . .  on the ground of race .. . .”  Pursuant 
to this law, the defendant ordered food and drink from said 
establishment. The next quoted excerpt contains the reason 
for the prosecution which arose in the state court:

■ “ * * * The waitress brought the food and drink to the
counter where petitioner was seated, the drink being in 
the bottle.

“ Petitioner asked the waitress to provide a glass of 
ice because the drink was warm. Solely because pe­
titioner is a Negro, the waitress refused to do so. 
Another restaurant employee offered to get a glass 
o f ice for petitioner but when the waitress expressed 
her objections the other restaurant employee declined



9

to interfere. Petitioner did not consume the food and 
drink because he was not provided a glass of ice. 
Petitioner refused to pay for the food and drink and 
left the restaurant. Before he could drive away he 
was accosted by the proprietor and subsequently 
arrested.”  [Emphasis added.]

If, as alleged in the petition, the defendant was refused 
ice to cool a warm beverage solely because of his race, then 
obviously he was denied the full and equal enjoyment of 
the goods and services of the Davis Truck Terminal solely 
because of his race.

Thus, the District Court was required to decide whether 
the fact that the defendant, who was denied the full and 
equal enjoyment o f the goods and services of a restaurant, 
and who, therefore, refused to accept and pay for these 
goods and services, was acting under color of authority of 
a law providing for equal rights. Stated another way, the 
question is whether Section 203 o f the Civil Rights Act 
protected the defendant from prosecution in the State 
courts for seeking full and equal service in a covered 
establishment.

In his opinion, the District Court stated:

“ The petition with regard to subsection (2 ) presents 
a very close question. The cases of Rachel v. Georgia
342 F. 2d 336 (5th Cir. 1965), rehearing denied,
343 F.2d 909 (5th Cir. 1965) petition for certiorari 
filed, 33 U.S. Law Week 3391 (U.S. May 15, 1965) 
and New York v. Galamison, 342 F.2d 255 (2d Cir.), 
cert, denied, 380 U.S. 977 (1965) do not appear to 
provide a definitive answer to the problem in the case



10

at bar. In the Georgia case the petitioners were re­
fused service. In this case it is charged that Moore 
failed to pay for his meal, committed a breach o f the 
peace and otherwise acted in a disorderly manner. He 
asserts as a defense the Civil Rights Act o f 1964, 
Sections 202 and 203, 42 U.S.C. Sections 2000a-l & 2 
which would seem to bring the case within the rule 
expressed in Nezu York v. Galamison, supra. The 
distinction is not altogether clear. Certainly if he were 
arrested simply because he went in and demanded a 
meal or demanded to be served, Rachel would control 
and the case would not be remanded.

“ On the other hand, when having been served a 
dispute arises about the quality of the service, and the 
defendant refuses to pay, the case should be remanded. 
In this situation the Civil Rights Act is urged as a 
defense. In Galamison the Court stated, 342 F2d at 
271:

“ ‘When the removal statute speaks of ‘ “ color of 
authority derived from” ’ a law providing for equal 
rights, it refers to a situation where the lawmakers 
manifested an affirmative intention that a beneficiary 
of such a law should be able to do something and not 
merely to one where he may have a valid defense or be 
entitled to have civil or criminal liability: imposed on 
those interfering with him.’ I f the defendant raises 
this defense in the state court and he is not accorded 
a full defense, or the defense isn’t recognized, then, of 
course, we would have a clear-cut situation. That 
doesn’t appear to be the situation here. The Court is 
o f the opinion the motion to remand should be 
granted.”



11

W e cannot agree with the District Court that the dis­
tinction between refusing to serve and refusing to accord 
the full and equal enjoyment of goods and services is con­
trolling. Furthermore, we do not agree that the Court in 
Galamison was stating that the Civil Rights Act o f 1964 
does not confer “ color o f authority”  in the sense required 
by the removal statute. W e repeat the quote relied on by 
the District Court and add the sentence which immediately 
follows:

“ (4 )  When the removal statute speaks o f ‘color o f 
authority derived from ’ a law providing for equal 
rights, it refers to a situation where the lawmakers 
manifested an affirmative intention that a beneficiary 
of such a law should be able to do something and not 
merely to one where he may have a valid defense or be 
entitled to have civil or criminal liability imposed on 
those interfering with him.

“ (5 ) When the removal statute speaks o f ‘any law 
providing for equal rights,’ it refers to those laws 
that are couched in terms o f equality, such as the 
historic and the recent equal rights statutes, as dis­
tinguished from laws, o f which the due process clause 
and 42 U.S.C. § 1983 are sufficient examples, that 
confer equal rights in the sense, vital to our way of 
life, of bestowing them upon all.”  New York v. 
Galamison, 342 F.2d 255 (2nd Cir.), cert, denied, 380 
U.S. 977 (1965).

Earlier, in pointing out that the Equal Protection Clause 
and 42 U.S.C. § 1981 do not confer “ ‘color of authority’ 
in the sense o f § 1443(2), to perform the acts that are 
the subject o f state prosecution,”  the Court indicated:



12

“ *** a  different case from any here before us would 
be presented if the act complained o f in the state suit 
was performed in the defendant’s exercise of an equal 
right, such as the right to equal accommodations under 
§ 201 of the Civil Rights Act o f 1964, which Congress 
has singled out for federal protection.” Ibid.

In Section III of his petition, defendant had asserted:

“ Petitioner claims a right to removal under Title 
28 U.S.C. §1443(2); this being a criminal prosecution 
for refusing to pay for the food and drink, in the 
circumstances under which they were served, on the 
ground that it would be inconsistent with a law pro­
viding for equal rights, viz: Section 201 of the Civil 
Rights Act o f 1964 by virtue o f which the petitioner, 
a Negro, is entitled to the full and equal enjoyment of 
the goods and services o f the subject establishment 
without racial discrimination, and Sections 202 and 
203 of the Civil Rights Act o f 1964, by virtue o f which 
the defendant may not be punished for exercising or 
attempting to exercise any right or privilege secured 
by Section 201 or 202.”

In the case of Hamm v. Rock Hill, . . . U.S. . . ., 13 L.ed 
2d 300, 304-5, the Court, in reversing the conviction of 
lunch counter sit-in demonstrators, stated:

“ Under the Civil Rights Act, petitioners’ conduct 
could not be the subject o f trespass prosecutions, fed­
eral or state, if it had occurred after the enactment of 
the statute.



13

“ Title II includes several sections, some o f which 
are relevant here, that create federal statutory rights.8 
The first is § 201(a) declaring that ‘all persons shall 
be entitled to the full and equal enjoyment of the 
goods, services, facilities, privileges, advantages, and 
accommodations of any place o f public accommodation,’ 
which as we have found includes the establishments 
here involved. Next, § 203 provides:

“ No person shall (a ) withhold, deny, or attempt to 
withhold or deny, or deprive or attempt to deprive, any 
person of any right or privilege secured by section 201 
or 202, or (b ) intimidate, threaten, or coerce, or at­
tempt to intimidate, threaten, or coerce any person with 
the purpose of interfering with any right or privilege 
secured by section 201 or 202, or (c )  punish or attempt 
to punish any person for exercising or attempting to 
exercise any right or privilege secured by section 201 
or 202. [Emphasis supplied.]

“ On its face, this language prohibits prosecution of 
any person for seeking service in a covered establish­
ment, because o f his race or color. It has been argued, 
however, that victims of discrimination must make 
use of the exclusive statutory mechanisms for the 
redress of grievances, and not resort to extra legal 
means. Although we agree that the law generally con­
demns self-help, the language of § 203(c) supports a 
conclusion that non-forcible attempts to gain admit­
tance to or remain in establishments covered by the 
Act, are immunized from prosecution, for the statute 
speaks of exercising or attempting to exercise a ‘right 
or privilege’ secured by its earlier provisions. The



14

availability of the Act as a defense against punishment 
is not limited solely to those who pursue the statutory 
remedies. The legislative history specifically notes that 
the Act would be a defense to criminal trespass, breach 
of the peace and similar prosecutions.”

B

Defendant Is Being Prosecuted For Refusing To 
Do An Act Inconsistent With A Law Providing For 
Equal Rights

It can hardly be argued that defendant is not entitled 
to the same protection by the Civil Rights Act as one who 
is refused service altogether and is arrested for refusing 
to leave the premises. The clear language o f the Act refutes 
the idea that a covered establishment can discriminate in 
the service given Negro customers. However, the District 
Court stated:

“ Certainly if he were arrested simply because he 
went in and demanded a meal or demanded to be 
served, Rachel would control and the case would not 
be remanded.

“ On the other hand, when having been served a 
dispute arises about the quality o f the service, and the 
defendant refuses to pay, the case should be remanded.”

It is inconsistent with the letter, purpose and spirit o f 
the Civil Rights Act o f 1964 to permit prosecution o f a 
citizen seeking to exercise a right created by that Act. See 
footnote 3 in Hamm v. Rock Hill, supra.



15

A  contrary view would require any victim of racial dis­
crimination at the hands o f a covered establishment either 
to :

(1 ) file a suit to enjoin such discrimination,

(2 ) submit to such discrimination either by leaving the 
premises when requested to do so or by accepting 
and paying for discriminatory service, or

(3 ) refuse such discriminatory service and face prose­
cution in the State court on charges brought by the 
establishment.

In this case, the defendant chose to follow the latter 
alternative. His subsequent prosecution is not only incon­
sistent with, but is forbidden by, Section 203 o f the Act, 
which provides that:

“ No person shall . . . .

“ ( c )  punish or attempt to punish any person for 
exercising or attempting to exercise any right 
or privilege secured by Section 201 or 202.”

To permit the instant case to be remanded would mean 
that Congress has created substantial federal rights pur­
porting to insure that racial discrimination be eliminated 
from places o f public accommodation, but has left the inter­
pretation and enforcement o f these rights to State courts.



16

II

Defendant Cannot Enforce In The State Courts His 
Rights Under Due Process And Equal Protection 
Clauses Of The Fourteenth Amendment

With respect to Section 1443(1), the District Court 
stated:

“ This case is before the Court on a petition for re­
moval and a motion to remand. The petition for re­
moval is based upon 28 U.S.C. Section 1443 (1 ) and 
(2 ). The petition, insofar as it is based upon subsec­
tion (1 ) , is denied on the basis o f the Commonwealth 
v. Wallace Crim. No. 7429 (E. D. Va., April 10, 
1964) and Bailey v. Smyth, 220 F.2d 954 (4th Cir. 
1955).”  (A . 10)

The allegations of Section IV  of the removal petition 
(A . 4-5) make out a clear prima facie case of jury dis­
crimination. The petition further asserts that:

“ In the case of Bailey v. Commonwealth, 193 Va. 
814 (1952), the Supreme Court of Appeals o f Virginia 
approved such custom, usage and practice o f consist­
ently limiting the number of Negroes who may be 
called for jury service so that either side may per­
emptorily eliminate all Negroes from actual jury serv­
ice. Under the law of the State of Virginia as thus 
ascertained and declared by its highest court, petitioner 
cannot enforce in the courts of the State his right to 
be tried by a jury in the selection o f which there has 
been no discrimination against persons of his race.”



17

In the Wallace case, the District Court stated:

“ * * * The petitioner urges that Bailey brings the 
case at bar squarely within the proposition cited in 
Kentucky v. Powers, supra, and the cases upon which 
its reasoning is based. If Bailey can be read to allow 
such discrimination, then it follows that under more 
recent decisions of the Supreme Court the Virginia 
Constitution and Statutes do fall within the purview 
of section (1 ).

‘ ‘The Court, however, concludes that the case of 
Bailey v. Commonwealth cannot be cited to establish 
the proposition that in Virginia improper racial dis­
crimination in the selection of jurors is permitted. 
That case must be considered solely upon the facts' 
that were presented in it and upon the concessions 
made by counsel in argument. It cannot be considered 
as precedent for the proposition that if the defendant 
establishes in Prince Edward County factual racial 
discrimination, the Virginia courts will hold as a mat­
ter o f law that such discrimination is permissible.

“ The Court reaches that conclusion not only from 
reading Bailey, but largely from the case of Bailey v. 
Smyth in 220 F.2d 954 (4th Cir. 1955). O f course, 
as we all know, the petitioner in Bailey v. Smyth was 
the appellant in Bailey v. Commonwealth.



18

“ The Court of Appeals for the Fourth Circuit, at 
220 F.2d 955, points out that one of the grounds upon 
which a writ of habeas corpus was sought was ‘that 
there had been discrimination on the ground of race in 
the selection of the jury by which he had been tried.’ 
They found that such discrimination had not been 
established and refused to grant the writ.

“They went further and held that the issues could 
be determined from the state record.

“ Therefore, this Court does not see how it can de­
termine that the case of Bailey v. Commonwealth in 
71 S.E. 2d 368 establishes the proposition which coun­
sel for the petitioner urges upon this Court. To do so, 
the Court would have to disregard the plain holding 
o f the Court o f Appeals for the Fourth Circuit in 
Bailey v. Smyth, which was based not on the redeter­
mination o f the facts, but on the law. And this Court 
is not, of course, in a position to do so.”

The District Court thus held that Bailey v. Smyth, supra, 
decided that there had been no discrimination on the ground 
of race in the selection o f the jury in Commonwealth v. 
Bailey, supra. This holding was clearly erroneous for as is 
shown in the last sentence quoted above, this Court in 
Bailey v. Smyth did not redetermine the facts in that case 
but merely decided the legal questions presented.



19

III

Section 1443 (1 ) Provides For Removal Of A State 
Prosecution Under Virginia Statutes When Such 
Statutes As Applied Deny Defendant’s Rights Finder 
The Civil Rights Act Of 1964.

The defendant is being prosecuted for violating (1 ) a 
Virginia statute1 which prohibits one from obtaining food 
from a restaurant without paying and with the intent to 
cheat or defraud and (2 ) a Virginia statute2 which prohibits 
disorderly conduct in public places. (A . 1-2, 7-8.)

The Commonwealth of Virginia is foreclosed from prose­
cuting the defendant under these statutes for exercising 
his rights under the Civil Rights Act o f 1964 by the reach 
of Rachel v. Georgia, 342 F.2d 336 (5th Cir. 1965), re­
hearing denied, 343 F.2d 909. (See also, Peacock v. City
of Greenwood,..... F .2 d .......  (5th Cir. June 22, 1965). The
Rachel case involved prosecutions of sit-in demonstrators 
under the Georgia anti-trespass statute, Georgia Code Sec. 
26-3005. The Georgia statute, like the Virginia statutes 
here, was non-discriminatory on its face and only through 
application could it operate to deny equal civil rights. The 
law providing for equal civil rights was the Civil Rights 
Act o f 1964. The removal petitions in that case were con­
strued as alleging, in effect, that the Georgia Code Section

1 Code o f Virginia, 1950, as amended, Sec. 18.1-120.

2 Code of Virginia, 1950, as amended, Sec. 18.1-254.



20

26-3005 was being applied to the appellants in violation of 
the Civil Rights Act of 1964 and therefore in violation of 
the Supremacy Clause. The Court held that this was a good 
claim for removal under Section 1443(1). It was as though 
the Civil Rights Act had placed a gloss on the Georgia 
statute to the effect that it was not to be applied in peaceful 
sit-in demonstration.

The rationale of Rachel is applicable here since the denial 
o f the equal rights was through statutory application rather 
than through some infirmity appearing on the face of the 
statute.

CONCLUSION

W H EREFO RE, It is respectfully submitted that the 
judgment o f the District Court remanding this prosecution 
should be reversed. S.

S. W . T ucker 
H enry  L. M a r sh , III 
W illard  H. D ouglas, Jr. 

214 East Clay Street 
Richmond, Virginia

R. H. Cooley, Jr.
133 Harrison Street 
Petersburg, Virginia

Attorneys for Appellant



APPENDIX



APPENDIX

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF VIRGINIA 

Richmond Division

Criminal No. 7575

W IL L IE  M. MOORE, Petitioner,

v.

C O M M O N W E A LTH  OF VIRG IN IA , Respondent.

PETITION FOR REMOVAL

[Filed April 7, 1965]

I

Willie M. Moore petitions the Court that a certain crim­
inal prosecution against him pending in the Circuit Court 
of the County of Sussex, in the State of Virginia, be re­
moved from said state court to the United States District 
Court for the Eastern District of Virginia, Richmond 
Division, the said criminal prosecution being the proceed­
ing upon a warrant which as issued, on complaint and in­
formation of I. T. Davis, charged that the defendant



App. 2

“ did on the 7th day of March, 1965:
Unlawfully failing to pay for Meal at his place of 
bissness”

and, as amended by the Sussex County Court, charged 
that the defendant

“ did on the 7th day of March, 1965:
Unlawfully failing to pay for Meal at his place of 
bissness and committing acts in breach of the peace 
and otherwise acting in a disorderly manner”

A  copy of the warrant as issued and a copy of the warrant 
as amended are attached as exhibits hereto.

II

The incident which gave rise to said prosecution is, 
briefly stated, as follow s:

Davis Truck Terminal, located in Sussex County on 
Highway US 301, is engaged in selling food for con­
sumption on the premises and serves and offers to 
serve interstate travelers; and a substantial portion of 
the food which it serves and gasoline and other prod­
ucts which it sells have moved in commerce.

In the early morning of March 7, 1965, the petitioner 
entered Davis Truck Terminal and there ordered food 
and drink. The waitress brought the food and drink 
to the counter where petitioner was seated, the drink 
being in the bottle.



App. 3

Petitioner asked the waitress to provide a glass o f ice 
because the drink was warm. Solely because petitioner 
is a Negro, the waitress refused to do so. Another 
restaurant employee offered to get a glass of ice for 
petitioner but when the waitress expressed her objec­
tions the other restaurant employee declined to inter­
fere. Petitioner did not consume the food and drink 
because he was not provided a glass of ice. Petitioner 
refused to pay for the food and drink and left the 
restaurant. Before he could drive away he was ac­
costed by the proprietor and subsequently arrested.

Ill

Petitioner claims a right to removal under Title 28 U.S.C. 
§ 1443(2) ; this being a criminal prosecution for refusing to 
pay for the food and drink, in the circumstances under 
which they were served, on the ground that it would be 
inconsistent with a law providing for equal rights, viz: 
Section 201 of the Civil Rights Act of 1964 by virtue of 
which the petitioner, a Negro, is entitled to the full and 
equal enjoyment of the goods and services of the subject 
establishment without racial discrimination, and Sections 
202 and 203 of the Civil Rights Act of 1964, by virtue of 
ivhich the defendant may not be punished for exercising 
or attempting to exercise any right or privilege secured by 
Section 201 or 202. [Italicized portion added by amend­
ment June 7, 1965.]



App. 4

IV

Petitioner claims a right to removal under Title 28 U.S.C. 
§ 1443(1) because he can not enforce in the courts o f the 
State of Virginia his right under the Due Process and 
Equal Protection Clauses of the Fourteenth Amendment 
to the Constitution of the United States that there be no 
systematic discrimination against, or limitation of the num­
ber of, persons of his race in the selection o f the petit jury 
by which he would be tried.

Petitioner is a Negro and a resident of Dinwiddie County, 
Virginia.

In 1950, according to the United States Census of Popu­
lation for that year, there were 6,868 persons twenty-one 
years o f age and over residing in Sussex County of which 
number 2,834 were white persons and 4,034 were non­
white or Negroes. In 1960, according to the United States 
Census of Population for that year, there were 6,368 per­
sons twenty-one years o f age and over residing in the 
County of Sussex of which number 2,662 were white per­
sons and 3,706 were non-white persons or Negroes.

It is and for many years has been the custom, usage and 
practice o f the officials of the Circuit Court o f the County 
of Sussex charged with duties pertaining to jury selection 
to deliberately limit the number of Negroes who may be 
summoned for jury duty so that never has the concurrence 
of a Negro member of a grand jury been essential to an 
indictment, and seldom, if ever, have more than four Ne­
groes been included in a panel o f twenty from which each 
side strikes four to leave a jury o f twelve for the trial of



App. 5

a felony charge, and seldom, if ever, have more than three 
Negroes been included in a panel of eleven from which 
each side strikes three to leave a panel o f five for the trial 
of a misdemeanor charge. Such custom, usage and practice 
of deliberate limitation would enable the prosecutor peremp­
torily to exclude all Negroes from the jury by which pe­
titioner would be tried in said Circuit Court.

In the case of Bailey v. Commonwealth, 193 Va. 814 
(1952), the Supreme Court o f Appeals of Virginia ap­
proved such custom, usage and practice of consistently 
limiting the number of Negroes who may be called for 
jury service so that either side may peremptorily eliminate 
all Negroes from actual jury service. Under the law of the 
State of Virginia as thus ascertained and declared by its 
highest court, petitioner cannot enforce in the courts of 
the State his right to be tried by a jury in the selection of 
which there has been no discrimination against persons of 
his race.



App. 6

W H ER EFO RE , petitioner prays the removal of the 
above mentioned criminal proceeding from the Circuit 
Court o f the County o f Sussex to the United States District 
Court for the Eastern District o f Virginia, Richmond D i­
vision, and prays that said proceeding stand so removed.

/ s /  Willie M. Moore 

Petitioner

/ s /  R. H. Cooley, Jr.

O f Counsel for Petitioner

R. H. Cooley, Jr.
133 Harrison Street 
Petersburg, Virginia

S. W . T ucker 
H enry  L. M a rsh , III 
W illard H. D ouglas, Jr.

214 East Clay Street 
Richmond, Virginia 23219

Counsel for Petitioner



App. 7

WARRANT AS ORIGINALLY ISSUED

STA TE  OF V IR G IN IA  }

CO U N TY OF SU SSEX $

T o -W it: N o____ ____

TO A N Y  SH ERIFF OR POLICE OFFICER:

Whereas, I. T. Davis has this day made complaint and 
information on oath before me, E. R. Heisler, J. P, o f the 
said County, that Willie M. Moore in the said County did 
on the 7 day of March, 1965: Unlawfully failing to pay 
for meal at his place of bissness.

These are, therefore, to command you, in the name of 
the Commonwealth, to apprehend and bring before the 
County Court of the said County, the body . . .  o f the above 
accused, to answer the said complaint and to be further 
dealt with according to law.

*  -1=

Given under my hand and seal, this 7 day of March, 1965
E. R. Heisler, J.P. (Seal)

WARRANT AS AMENDED

STA TE  OF V IR G IN IA  }

CO U N TY OF SU SSEX j

To-W it: No.



App. 8

TO A N Y  SH ERIFF OR PO LICE O FFICER:

Whereas, I. T. Davis has this clay made complaint and 
information on oath before me, E. R. Heisler, J. P. o f the 
said County, that Willie M. Moore in the said County did 
on the 7 day of March, 1965: Unlawfully failing to pay 
for Meal at his place o f bissntss and committing acts in 
breach of the peace and otherwise acting in a disorderly 
manner.

These are, therefore, to command you, in the name of 
the Commonwealth, to apprehend and bring before the 
County Court o f the said County, the body . . .  o f the above 
accused, to answer the said complaint and to be further 
dealt with according to law.

* * *

Given under my hand and seal, this 7 day of March, 1965
s / E. R. Heisler, J. P. (Seal)

[Caption Omitted]

MOTION TO REMAND

[Filed May 28, 1965]

To the Honorable John D. Butzner, Jr., Judge of said Court.

Now comes the respondent, the Commonwealth of V ir­
ginia, by its Attorney, E. Carter Nettles, Jr., Common­
wealth’s Attorney for the County o f Sussex, Virginia, and 
moves the court to remand this suit to the Circuit Court of



App. 9

Sussex County, Virginia, from which court it was at­
tempted to be removed to this court, for the reasons and 
upon the grounds hereinafter set forth:

1. That petitioner, Willie M. Moore, is prosecuted for 
violation o f Virginia Code of 1950, Section 18.1-120;

2. That if all allegations alleged in petitioner’s “ Petition 
for Removal”  in paragraph denoted “ IT”  are proved true 
this court is without jurisdiction to hear the case;

3. That petitioner has not at any time requested a jury 
trial in the Circuit Court o f Sussex County of Virginia;

4. That juries are selected in the Circuit Court o f Sussex 
County. Virginia in those cases provided in accordance 
with the statutory law of Virginia ;

5. That no specific violation o f Section 201 o f the Civil 
Rights Act o f 1964 have been alleged nor did any such 
violation in fact occur.

W H EREFORE, Commonwealth of Virginia prays that 
this suit may be remanded to the Circuit Court o f Sussex 
County. Virginia to be proceeded with according to the 
practice governing such cases.

C O M M O N W E ALTH  OF V IR G IN IA

By E. Carter Nettles, Jr., Commonwealth’s 
Attorney for the County of Sussex, 
Virginia.



App. 10

OPINION FROM THE BENCH

[June 7, 1965]

T H E  C O U R T : This case is before the Court on a pe­
tition for removal and a motion to remand. The petition 
for removal is based upon 28 U.S.C. Section 1443 (1 ) 
and (2 ). The petition, insofar as it is based upon sub­
section (1 ), is denied on the basis o f the Commonwealth 
v. Wallace Crim. No. 7429 (E. D. Va., April 10, 1964) 
and Bailey v. Smyth, 220 F.2d 954 ( 4th Cir. 1955).

The petition with regard to subsection (2 ) presents a 
very close question. The cases o f Rachel v. Georgia, 342 
In 2d 336 (5th Cir. 1965), rehearing denied, 343 F.2d 
909 (5th Cir. 1965) petition for certiorari filed, 33 U.S. Law 
Week 3391 (U.S. May 15, 1965) and New York v. Gala- 
mison, 342 F.2d 255 (2d Cir.), cert, denied, 380 U.S. 977 
(1965 ) do not appear to provide a definitive answer to the 
problem in the case at bar. In the Georgia case the petition­
ers were refused service. In this case it is charged that 
Moore failed to pay for his meal, commited a breach of 
the peace and otherwise acted in a disorderly manner. He 
asserts as a defense the Civil Rights Act o f 1964, Sections 
202 and 203, 42 U.S.C. Sections 2000a-l & 2 which would 
seem to bring the case within the rule expressed in New 
York v. Galamison, supra. The distinction is not altogether 
clear. Certainly if he were arrested simply because he went 
in and demanded a meal or demanded to be served, Rachel 
would control and the case would not be remanded.

On the other hand, when having been served a dispute 
arises about the quality of the service, and the defendant



App. 11

refuses to pay, the case should be remanded. In this situ­
ation the Civil Rights Act is urged as a defense. In Gal- 
cnnison the Court stated, 342 F2d at 271 :

“ When the removal statute speaks of ‘color o f authority 
derived from’ a law providing for equal rights, it refers 
to a situation where the lawmakers manifested an affirma­
tive intention that a beneficiary of such a law should be 
able to do something and not merely to one where he may 
have a valid defense or be entitled to have civil or criminal 
liability imposed on those interfering with him.” If the 
defendant raises this defense in the state court and he is 
not accorded a full defense, or the defense isn’t recognized, 
then,, o f course, we would have a clear-cut situation. That 
doesn’t appear to be the situation here. The Court is of the 
opinion the motion to remand should be granted.

MR. M A R SH : Your Honor, we intend to appeal this 
case and would like to move for a stay o f the Court’s ruling 
pending the outcome of appeal.

TH E  C O U R T : What is your position on that?

MR. N E T T L E S : I would move that you withhold your 
decision pending the decision of the case that is now on 
appeal, the Wallace case.

TH E  C O U R T : No. This case should be decided. The 
motion for a stay is granted. The Court supposes the appeal 
will be prosecuted within the statutory time. If the appeal 
is not prosecuted you can move to dissolve the stay.



App. 12

[Caption Omitted]

ORDER OF REMAND

[Filed August 24, 1965]

This cause came on to be heard on the Petition for Re­
moval, the Answer of the Commonwealth of Virginia, 
Amendment to Petition for Removal, and as argued by 
counsel on June 7, 1965; and it appearing that the cause 
herein should not be removed and that it should be re­
manded,

IT IS O RDERED and ADJUDGED that the above 
cause be and is remanded to the Circuit Court o f Sussex 
County, Virginia.

Upon motion of Willie M. Moore, execution of this 
order is stayed pending appeal.

Let the Clerk send copies of this order to counsel of 
record.

August 24, 1965

John D. Butzner, Jr.

United States District Judge



App. 13

[Caption Omitted]

NOTICE OF APPEAL

[Filed August 30, 1965]

Name and address of Appellant:

Willie M. Moore 
Route 2, Box 118 
Dinwiddie, Virginia

Name and addresses of Appellant’s Attorneys:

R. H. Cooley, Jr.
133 Harrison Street 
Petersburg, Virginia 23803

S. W . Tucker 
Henry L. Marsh, III 
Willard H. Douglas, Jr.

214 East Clay Street 
Richmond, Virginia 23219

Offense: Failing to pay for meal [in restaurant], breach of 
the peace, and disorderly conduct.

Concise Statement of Judgment or Order, giving date and 
any sentence:



App. 14

August 24, 1964: O RDERED and ADJUDGED that 
the above cause be and is remanded to the Circuit 
Court o f Sussex County, Virginia.

Name of institution where now confined, if not on bail: 
Defendant is on bail.

The above named defendant hereby appeals to the United 
States Court o f Appeals for the Fourth Circuit from the 
above stated judgment.

Date: August 28, 1965

/ s /  Henry L. Marsh, III 

Appellant’s Attorney