Hillegas v. Sams Petition for Rehearing En Banc and Supporting Brief
Public Court Documents
September 1, 1965
Cite this item
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Brief Collection, LDF Court Filings. Hillegas v. Sams Petition for Rehearing En Banc and Supporting Brief, 1965. c5f1fc42-b89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/672dc56a-b229-4fd0-bbec-afc07301bb9f/hillegas-v-sams-petition-for-rehearing-en-banc-and-supporting-brief. Accessed July 31, 2025.
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Isr t h e
ItoiTs QJmirt nt Appeals
F or t h e F if t h Circu it
No. 22241
J an H illegas,
Appellant,
— v .—
J oe S ams, J r ., County Attorney for Lowndes
County, Mississippi, et al.,
Appellees.
ON appeal from t h e u n ited states district court for th e
n orthern district OF MISSISSIPPI
PETITION FOR REHEARING EN BANC
AND SUPPORTING BRIEF
H enry M. A ronson
538% North Farish Street
Jackson, Mississippi 39202
J ack G reenberg
J ames M. N abrit, III
M elvyn Zarr
10 Columbus Circle
New York, New York 10019
A n th o n y G. A msterdam
3400 Chestnut Street
Philadelphia, Pa. 19104
Attorneys for Appellant
Of counsel:
R. J ess B rown
Carsie A. H all
J ack H . Y oung
I N D E X
Petition for Rehearing en Bane ................................... 1
Statement of the Case ............................ ....... ....... 2
Reasons for Granting Rehearing en Bane .......... 6
Certificate ...............— ..------------------------ -------- 10
Brief in Support of Petition for Rehearing en Banc .... 11
A bgum ent :
I. Federal Habeas Corpus Courts Are Empow
ered to Discharge From Mesne Restraints
Petitioners Held to Answer Unconstitutional
State Prosecutions ......................................... 11
II. Petitioner-Appellant’s Prosecution Is Uncon
stitutional ................ 12
III. A Federal Habeas Corpus Applicant in Peti
tioner-Appellant’s Situation Is Not Required
to Exhaust State Judicial Remedies.............. 15
(1) Wyckoff, Brown v. 'Bayfield and 28
U. S. C. § 2254 ....................................... 15
(2) Legislative history .................................. 20
(3) Judicial development of the exhaustion
doctrine .................................................... 38
(4) Application of the exhaustion doctrine
to civil rights cases ........................... 42
PAGE
C onclusion 51
11
Appendices
Appendix I :
Becobd in the District Court
Petition for W rit of Habeas Corpus W ith Motion
for Stay of State Court Proceedings ................. la
O rd e r ............... 14a
Notice of Appeal ......................................................... 15a
Application for Certificate of Probable Cause,
W ith Certificate ..................................................... 16a
Appendix I I :
Miss. Code Ann., 1942, § 2666(c) ........................... 17a
Appendix I I I :
Excerpts From Petitioner-Appellant’s Brief Dis
tinguishing Brown v. Ray field ........................... 18a
Table of Authorities
Cases:
Ex parte Ah Lit, 26 Fed. 512 (D. Ore. 1886) ............... 39
In re Alexander, 84 Fed. 633 (W. D. N. C. 1898) ....... 41
Baggett v. Bullitt, 377 IT. S. 360 (1964) .......................45,49
Baker v. Grice, 169 IT. S. 284 (1898) (dictum) ........... 12, 41
Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963) .... 48
B arr v. Columbia, 378 IT. S. 146 (1964) ....................... 13
Ex parte Bartlett, 197 Fed. 98 (E. D. Wise. 1912) ....... 41
PAGE
i n
Bates v. Little Rock, 361 U. S. 516 (1960) ............... 12
Ex parte Bollman, 4 Crancli 75 (1807) ........................ 21
Bouie v. Columbia, 378 U. S. 347 (1964) ........... ......... 14
Ex parte Bridges, 4 Fed. Cas. 98, No. 1,862 (D. C.
N. D. Ga. 1875) .......... .............................. .......... . 39
Brotherhood of Railroad Trainmen v. Virginia ex rel.
Va. State Bar, 377 U. S. 1 (1964) ........... ...... .......12, 39
Brown v. Rayfield, 320 F. 2d 96 (5th Cir. 1963), cert.
denied 375 U. S. 902 (1963) ................. 1, 5, 6, 7, 9,10,15,
17,18,19, 20, 42, 51
BnshelPs Case, Vaughan, 135, 6 How. St. Tr. 999, 124
Eng. Rep. 1006 (1670) _______________________ 21
Cline v. Frink Dairy Co., 274 U. S. 445 (1927) .......... 14
Cohens v. Virginia, 6 Wheat. 264 (1821) ................. 35, 43
Cook v. Hart, 146 U. S. 183 (1892) (dictum) ......... 12,19
Cooper v. Aaron, 358 H. S. 1 (1958) ...................... 47
Cox v. Louisiana, 5th Cir., No. 22657, stay granted
July 29, 1965 ................................................... 9,13,45,48
Cramp v. Board of Public Instruction, 368 U. S. 278
(1961) ........... .......................................................... . 48
Cunningham v. Skiriotes, 101 F. 2d 635 (5th Cir. 1939) 41
Darr v. Burford, 339 U. S. 200 (1950) (dictum) .......... 20
Dilworth v. Riner, 343 F. 2d 226 (5th Cir. 1965) ..........8, 48
Dombrowski v. Pflster, 380 U. S. 479 (1965) ....8, 9,13, 45, 48
Edwards v. South Carolina, 372 U. S. 229 (1963) ...... 13, 49
England v. Louisiana State Board of Medical Exam
iners, 375 IT. S. 411 (1964) ............ ..... ..................... 50
PAGE
Farmer v. State, 161 So. 2d 159 (Miss. 1964) .......... 49
Fay v. Noia, 372 U. S. 391 (1963) ..............22, 23, 25, 37,45
Feiner v. New York, 340 U. S. 315 (1951) ......... 50
Fields v. Fairfield, 375 U. S. 248 (1963) ..................... 13
Fields v. South Carolina, 375 U. S. 44 (1963) .......... 13,49
Garner v. Louisiana, 370 U. S. 157 (1961) ................. 13
Garrison y. Louisiana, 85 S. Ct. 209 (1964) ...... ....... 48
Gibson v. Florida Legislative Investigating Commit
tee, 372 U. S. 539 (1963) ........ .................................. 12
Griffin v. County School Board of Prince Edward
County, 377 U. S. 218 (1964) ....... ........................ 47
Hague v. C. I. 0., 307 U. S. 496 (1939) (plurality
opinion)............... ......................................................13, 43
Ex parte Hawk, 321 U. S. 114 (1944) ..................... 20,41
Henry v. Rock Hill, 376 IT. S. 776 (1964) .................. 13,49
Hunter v. Wood, 209 U. S. 205 (1908) ........................ 12
Johnson v. Zerbst, 304 U. S. 458 (1938) ..................... 21
Knight v. State, 161 So. 2d 521 (Miss. 1964) .............. 49
Ex parte Lange, 18 Wall. 163 (1873) ......................... 21
In re Lee Sing, 43 Fed. 359 (C. C. N. D. Cal. 1887) .... 42
In re Lee Tong, 18 Fed. 253 (D. Ore. 1883) ................. 39
Lombard v. Louisiana, 373 U. S. 267 (1963) ............. . 14
In re Loney, 134 U. S. 372 (1890) .............................. . 12
Marsh v. Alabama, 326 U. S. 501 (1946) ................... 48
Ex parte McCardle, 6 Wall. 318 (1867) ..................... 38
iv
PAGE
V
Ex parte McCardle, 7 Wall. 506 (1869) ..................... 38
Ex parte McCready, 15 Fed. Cas. 1345, No. 8,732
(C. C. E. D. Va. 1874) ................... .................... ...... 39
McNeese v. Board of Education, 373 U. S. 668 (1963)
36,45
Minnesota v. Brundage, 180 U. S. 499 (1901) ..... ........ 41
Monroe v. Pape, 365 IT. S. 167 (1961) ....................36,45
Mooney v. Holohan, 294 U. S. 103 (1935) ............ 41
Moss v. Glenn, 189 IT. S. 506 (1903) ..... ....................... 19
N. A. A. C. P. v. Alabama, 357 IT. S. 449 (1958) ...... 12
N. A. A. C. P. v. Button, 371 U. S. 415 (1963) ...12,14, 48
In re Neagle, 135 IT. S. 1 (1890) ............... .....12, 22, 23, 24
New York v. Eno, 155 XL S. 89 (1894) ........................ 19
New York Times Co. v. Sullivan, 376 U. S. 254 (1964) .. 48
In re Parrott, 1 Fed. 481 (C. C. D. Cal. 1880) ____ __ 39
Peacock v. City of Greenwood, 5th Cir., No. 21655,
decided June 22, 1965 .............. ............................... 8, 45
People v. McLeod, 25 Wend. 482 (Sup. Ct. N. Y. 1841) .. 24
Peterson v. Greenville, 373 U. S. 244 (1963) ..... 14
Prince v. Massachusetts, 321 IT. S. 158 (1944) .............. 48
In re Quong Woo, 13 Fed. 229 (C. C. D. Cal. 1882) .... 39
Eachel v. Georgia, 342 F. 2d 336 (5th Cir. 1965) ..........8, 45
Robinson v. Florida, 378 IT. S. 153 (1964) ................ . 14
Ex parte Royall, 117 U. S. 241 (1886) (dictum) ....12,19, 20,
40, 41, 42, 43, 44, 46, 47, 51
Saia v. New York, 334 IT. S. 558 (1948) ..................... 48
In re Sam Kee, 31 Fed. 680 (C. C. N. D. Cal. 1887) .... 42
PAGE
V I
Shelton v. Tucker, 364 U. S. 479 (1960) ..................... 12
Smith v. California, 361 U. S. 147 (1959) .................. 48
Staub v. Baxley, 355 U. S. 313 (1958) ......................... 12
Ex parte Tatem, 23 Fed. Cas. 708, No. 13,759 (E. D.
Ya. 1877) .................................................................... 39
In re Tie Loy, 26 Fed. 611 (C. C. D. Cal. 1886) .......... 39
Thomas v. Collins, 323 U. S. 516 (1945) ................. 12
Thomas v. State, 160 So. 2d 657 (Miss. 1964) .............. 49
Thomas v. Mississippi, 380 U. S. 524 (1965) ..... 49
Thompson v. Louisville, 362 U. S. 199 (1960) .......... 13
Townsend v. Sain, 372 U. S. 293 (1963) ..................... 45,51
United States v. Classic, 313 U. S. 299 (1941) .......... 13
United States ex rel. Drury v. Lewis, 200 U. S. 1
(1906) ........................................................................12,19
United States v. Hamilton, 3 Dali. 17 (U. S. 1795) ....... 21
United States v. L. Cohen Grocery Co., 255 U. S. 81
(1921) .......... .............. .............. ............ ................. . 14
United States v. Mississippi, 229 F. Supp. 925 (S. D.
Miss. 1964), rev’d, 380 U. S. 128 (1965) ................... 2
United States v. National Dairy Products Co., 372
U. S. 29 (1963) ......................................................... 14
United States v. Baines, 362 U. S. 17 (1960) .............. 13
United States ex rel. Silverman v. Fiscus, 42 Fed. 395
(W. D. Pa. 1890) ................. .......... .................... ...... 41
Ex parte Watkins, 3 Pet. 193 (1830) .......... ................ 21
In re Wan Yin, 22 Fed. 701 (D. Ore. 1885) ................. 39
Whitten v. Tomlinson, 160 U. S. 231 (1895) ..............12,19
PAGE
V ll
PAGE
Wildenhus’s Case, 120 U. S. 1 (1887) .......................... 12
Wo Lee v. Hopkins, 118 IT. S. 356 (1886) ................... 42
Wright v. Georgia, 373 U. S. 284 (1963) ..................... 14
Application of Wyckoff, 196 F. Supp. 515 (S. D. Miss.
1961), 6 Race Relations L. Rptr. 786, petition for
immediate hearing and for leave to proceed on orig
inal papers denied, id. at 793 (5th Cir. 1961), peti
tion for habeas corpus denied, id. at 794 (Circuit
Justice Black, with whom Mr. Justice Clark concurs,
1961) ..................................-.............. .5, 6,15,17,18,19, 42
Yick Wo v. Hopkins, 118 U. S. 356 (1886) ................. 42
Other , A utho rities
Legislative History
H. R. 3214, 80th Cong., 2d Sess. (1948) ..... .................. 18
Sen. Rep. No. 1559, 80th Cong., 2d Sess. (1948) ....... . 19
Cong. Debates, vol. 9, pt. 1 ...................................... . 23
Cong. Globe, 27th Cong., 2d Sess............................... . 24
Cong. Globe, 38th Cong., 2d Sess.................................. 26
Cong. Globe, 39th Cong., 1st Sess.............. ..26, 27, 31, 36, 37
Cong. Globe, 39th Cong., 2d Sess........................... .....27, 30
iStatutes
6,14,16,17, 47,48
..................... 36
U. S. Const., Amend. I .....
U. S. Const., Amend. XIII
U. S. Const., Amend. XIV .2, 3, 6,13,14,16,
17, 36, 41,43, 47
Vlll
U. S. Const., Amend. XV ..............................2, 3,13, 36, 43
28 U. S. C. $ 1343 (1958) ....... .................................8, 36, 43
28 U. S. C. § 1443 (1958) ........................................ 8, 27, 45
28 U. S. C. § 2241(c) (3) (1958) .............. 6,11,20,21,24,38
28 U. S. C. § 2251 (1958) .......................... 25
28 U. S. C. § 2253 (1958) .... .......... 5,18
28 U. S. C. § 2254 (1958) .........................9,15,16,17,18,19
42 U. S. C. A. § 1971 (1964) ........ ................................ 2,13
42 U. S. C. A. §§ 1983, 1985 (1958) .........................2,13, 36
PAGE
Habeas Corpus Act of 1679, 31 Charles II, ch. 2 ...... 22
Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 73 .......20, 22, 34
Act of Feb. 13, 1801, ch. 4, § 11, 2 Stat. 89, 92 .............. 34
Act of March 8, 1802, ch. 8, 2 Stat. 132...................... 34
Act of February 4,1815, ch. 31, § 31, § 8, 3 Stat. 195, 198 35
Act of March 3, 1815, ch. 43, § 6, 3 Stat. 231, 233 ....... 25, 35
Act of March 2, 1833, ch. 57, 4 Stat. 632 ..................... 20, 23
Act of August 29, 1842, ch. 257, 5 Stat. 539-540 .......... 20, 24
Act of March 3, 1863, ch. 81, 12 Stat. 755 ...........26, 35
Act of March 7, 1864, ch. 20, § 9, 13 Stat. 14, 17 .......... 35
Act of June 30, 1864, ch. 173, § 50, 13 Stat. 223, 241 .... 35
Freedmen’s Bureau Act, ch. 90, 13 Stat. 507, March 3,
1865 26
IX
Act of July 13, 1866, eh. 184, 14 Stat. 98 ... ................. 35
Amendatory Freedmen’s Bureau Act of July 16, 1866,
ch. 200, 14 Stat. 173 .................................................. 26
Act of February 5, 1867, 14 Stat. 385 ................. 20, 24, 27
Act of March 27, 1868, ch. 34, § 2, 15 Stat. 4 4 .............. 38
Act of May 31, 1870, ch. 114, §§ 8, 18, 16 Stat. 140, 142,
144 ............................................................................... 36
Act of February 28, 1871, ch. 99, § 16, 16 Stat. 438 .... 35
Act of April 20, 1871, ch. 22, § 1, 17 Stat. 13 ..........36, 37
Act of March 1,1875, ch. 114 § 3, 18 Stat. 335, 336 ...... 37
Act of March 3, 1875, ch. 137, 18 Stat. 470 ................. 34, 37
Act of March 3,1885, ch. 353, 23 Stat. 437 ..................... 39
Miss. Const., art. 8, §§ 201, 205, 207 ............................ 14
Miss. Const., art. 10, § 225 ................................ ............... 14
Miss. Const., art. 12, §§ 241-A and 244 ........................ 14
Miss. Code Ann., §§2057(7), 2339 (Recomp. Vols.
1956) ............................................ .............................. 14
Miss. Code Ann., § 2666(c) (Recomp. Yol. 1956) ....2,12,14
The Nullification Ordinance of South Carolina .......... 23
Boohs
IV Bacon’s Abridgment (Philadelphia, 1844) .............. 21
3 Blackstone Commentaries 129 (6th ed., Dublin
1775) ........ ......... ............. .................................... .......21,22
PAGE
X
PAGE
Chafee, How Human Rights Got Into the Constitution
(1952)........................................................................... 22
3 Comyns. Digest of the Laws of England 454-455
(1785) ........................................... - ............... -......... 21
Dunning, Essays on the Civil War and Reconstruction
(1898) ........................................................................... 36
Frankfurter & Landis, The Business of the Supreme
Court (1928) ................................... -........................... 37
2 Hale, Pleas of the Crown (1st American ed., Philadel
phia, 1847) .............-.................................................... 21
Hart & Weehsler, The Federal Courts and the Federal
System (1954) ............................................................. 34
9 Holdsworth, A History of English Law (1926) .......... 22
1 Morison & Commager, Growth of the American Re
public (4th ed. 1950) ................................................ 23, 35
Report of the Seventh Annual Meeting of the Ameri
can Bar Association (1884) ......................................... 39
1 Warren, The Supreme Court in United States His
tory (Rev. ed. 1932) .................................................... 35
Articles
Amsterdam, Criminal Prosecutions Affecting Federally
Guaranteed Civil Rights: Federal Removal and
Habeas Corpus Jurisdiction to Abort State Court
Trial, 113 U. Pa. L. Rev. 793 (1965) ........................ 8,19
Bator, Finality in Criminal Law and Federal Habeas
Corpus for State Prisoners, 76 Harv. L. Rev. 441
(1963) ....................................................................... 22,26
XI
PAGE
Brennan, Federal Habeas Corpus and State Prisoners:
An Exercise in Federalism, 7 Utah L. Bev. 423
(1961) ......................................................................... 22,37
Hart, Foreword, The Supreme Court, 1958 Term, 73
Harv. L. Bev. 84 (1959) .......................................... 22
Oaks, Habeas Corpus in the States, 32 U. Chi, L. Bev.
243 (1965) .................................................................. 21
Beitz, Federal Habeas Corpus: Postconviction Remedy
for State Prisoners, 108 U. Pa. L. Bev. 461 (1960) .... 22
Beitz, Federal Habeas Corpus: Impact of an Abortive
State Proceeding, 74 Harv. L. Bev. 1315 (1961) .... 22
Thompson, Abuses of the Writ of Habeas Corpus, 18
Am. L. Bev. 1 (1884) ........................................... ...... 21
Wechsler, Federal Jurisdiction and the Revision of the
Judicial Code, 13 Law & Contemp. Prob. 216, 230
(1948) ................. 46
Note, The Freedom Writ—The Expanding Use of Fed
eral Habeas Corpus, 61 Harv. L. Bev. 657 (1948) .... 22
Note, Federal Habeas Corpus for State Prisoners: The
Isolation Principle, 39 N. Y. U. L. Bev. 78 (1964) .... 22
Iasr t h e
United Btntez Olaurt nf KppmiB
F or t h e F if t h Circuit
No. 22241
J an H illegas,
- V . — '
Appellant,
J oe S ams, J r ., County Attorney for Lowndes
County, Mississippi, et at.,
Appellees.
ON APPEAL FROM T H E U N ITED STATES DISTRICT COURT FOR TH E
NO RTH ERN DISTRICT OF M ISSISSIPPI
PETITION FOR REHEARING EN BANC
Appellant Jan Hillegas respectfully requests rehearing
en banc of the decision of this Court rendered August 16,
1965, in an opinion by Circuit Judge Jones joined by Dis
trict Judge Sheehy, with Circuit Judge Brown concurring
in a separate opinion. The panel’s decision sought to be re
viewed rests squarely upon Brown v. Ray field, 320 F. 2d
96 (5th Cir. 1963), cert, denied, 375 U. S. 902 (1963), which
Judge Brown’s special concurrence urges is “wrong and
ought to be reversed” (slip opinion, p. 3). This petition
for rehearing asks that the Court en banc reconsider and
overrule Brown v. Ray field.
2
Statement of the Case
This is an appeal in a habeas corpus proceeding by which
appellant1 seeks release from the custody of respondents-
appellees, County Attorney and Sheriff-Jailer of Lowndes
County, Mississippi, who hold petitioner pursuant to Mis
sissippi state vagrancy charges under Miss. Code Asn .
§ 2666(c) (Recomp. Vol. 1956), set forth in Appendix II,
infra. The district court having denied the petition without
return or hearing, the following allegations must be taken
as true for purposes of the appeal.
The Council of Federated Organizations (COFO) is an
association of civil rights and local citizenship groups
working in Mississippi to achieve by peaceful and lawful
means the equal civil rights of Negroes and all persons and
to educate, assist and encourage Negroes to register and
vote in local, state and national elections free of racial
discrimination (Record, Appendix I, infra, 2a). Now and
during many years past, the county registrar of Lowndes
County, Mississippi, has denied and is denying Negroes the
right to register to vote by reason of race, in violation of
the Fourteenth and Fifteenth Amendments and 42 U. S. C. A.
§ 1971 (1964); 42 IT. S. C. §§ 1983, 1985 (1958). In 1961, the
voting age population of Lowndes County was 16,460 white
and 8362 Negro; there were 5869 registered white voters and
63 registered Negro voters; these figures have not substan
tially changed (7a).2 One of COFO’s purposes is to edu-
1 Appellant is sometimes referred to as petitioner—her designa
tion below. Appendix I contains the complete record of proceedings
in the district court.
2 The Government has brought suit against the registrar of
Lowndes County and others to enjoin these discriminatory prac
tices. United States v. Mississippi, 229 F. Supp. 925 (S. D. Miss.
1964), rev’d, 380 U. S. 128 (1965).
3
Petitioner is a 21-year-old white girl, a New York domi
ciliary and a college graduate, employed full-time by COFO
as a voter registration worker (2a). Her duties for COFO
include: interviewing Negro citizens of Mississippi for the
purpose of educating, encouraging and assisting them to
register to vote; accompanying such Negroes to the place of
voting registration for the purpose of supporting their ef
forts to register free of racial discrimination; observing
conduct by state officials or other persons calculated to
racially disfranchise Negroes in violation of the Fourteenth
and Fifteenth Amendments; and participating in the ad
ministrative activities of COFO’s voter registration pro
gram (3a). In return for her services, COFO supplies her
decent lodgings (in the home of a well-known, respected re
tired Negro minister in Columbus, Mississippi), meals, sup
port, maintenance, and reasonable livelihood, including all
things necessary to sustain her as a reputable member of
the community (3a). In addition, petitioner receives from
her mother in New York sufficient money to meet all her
needs (4a).
December 28, 1964, in the course of her COFO employ
ment, petitioner, with two COFO co-workers, was present
in the county courthouse for Lowndes County, assisting
Negro voter registration applicants by: (1) directing them
to the voter registration office; (2) supporting them, by
her presence as an observer, against intimidation and
harassment; and (3) interviewing them after their attempts
to register, for the purpose of ascertaining whether the
registrar was obstructing their attempts to register (4a).
While conducting themselves in these activities in a peace
cate, assist and encourage Negro citizens and residents of
Lowndes County to register to vote (8a).
4
ful and orderly manner, the three workers were arrested
by a deputy sheriff who had been informed that they were
COFO workers (5a). Charged with vagrancy, petitioner
offered to show the arresting officer money and a “vagrancy
form” prepared by COFO against such a contingency, stat
ing that petitioner was a COFO employee. The officer re
fused to look at the form and held her for vagrancy (5a-6a).
The following day an authorized COFO agent went to the
County Attorney and informed him: that petitioner was
a New York domiciliary, a college graduate, a COFO em
ployee; that by arrangement of COFO she lived without
expense to herself in the home of a well-known and re
spected retired Negro minister in the same town where
she was arrested and held; that COFO supplied petitioner
all her meals and necessaries. The COFO agent also showed
the County attorney a telegram dated that morning from
petitioner’s mother in New York, stating that the mother
had assumed and would continue to assume full responsi
bility for providing her daughter all her decent needs as a
respectable member of the community in Mississippi or
elsewhere. Respondent County Attorney nevertheless per
sisted in holding and prosecuting petitioner on the entirely
unfounded charge of vagrancy (6a-7a).
Consequently, on January 5, 1965, in advance of her state
trial, petitioner filed by counsel the present federal habeas
corpus proceeding, challenging the Mississippi vagrancy
statute on its face and as applied to her, as violative of her
federal rights of free speech, association and assembly, her
federal privilege to assist Negroes to register to vote in
federal elections, and her federal guarantee against harass
ment designed and effective to deter Negro voting regis
tration. She alleged that the prosecution was in further
ance of an official state-wide policy of discrimination against
5
Negroes and disfranchisement of Negroes by reason of
race (8a-9a). She further asserted that she had been ar
rested without probable cause and that she was being de
tained in a jail segregated by force of Mississippi statute
(9a). The United States District Court for the Northern
District of Mississippi denied the petition on its face on the
ground that petitioner had not exhausted her Mississippi
state remedies as required by Application of WycTcoff, 196 P.
Supp. 515 (S. D. Miss. 1961), 6 R ace R elations L. R ptr .
786, petition for immediate hearing and for leave to pro
ceed on original papers denied, id. at 793 (5th Cir. 1961),
petition for habeas corpus denied, id. at 794 (Circuit Jus
tice Black, with whom Mr. Justice Clark concurs, 1961);
and Brown v. Bayfield, 320 F. 2d 96 (5th Cir. 1963), cert,
denied, 375 U. S. 902 (1963) (14a). In so holding, the court
rejected petitioner’s contention—the principal issue in this
appeal—that exhaustion of state remedies is not required
in petitioner’s circumstances.
January 5, 1965, the order denying the petition was
entered; District Judge Clayton granted petitioner’s appli
cation for a certificate of probable cause under 28 U. S. C.
§2253 (1958) (16a), and petitioner’s notice of appeal was
filed (15a). January 22, 1965 this Court granted peti
tioner’s motion for leave to docket the appeal and proceed
on verified copies of the papers comprising the record
below, and set the case specially for expedited hearing on
typewritten briefs. Such briefs were filed and the case was
argued February 2, 1965.8 August 16, 1965, the order of the 3 *
3 For the information of the Court, District Judge Clayton made
informal arrangements with the appellees for petitioner-appellant
Hillegas’ release from physical confinement, and for the stay of her
state trial, pending the appellate proceedings in this case. Nothing
of this appears in the record.
6
District Court was affirmed. The majority opinion, by Judge
Jones joined by District Judge Sheehy, held that the deci
sions in Wyckoff and Brown v. Ray field, supra, controlled
this case (slip opinion, pp. 2, 3). Judge Brown, concurring
under the compulsion of Brown v. Ray field, pointed out that
Wyckoff was inapposite both to Brown v. Ray field and to
the present appeal (slip opinion, pp. 5-6), noted that Brown
v. Bayfield, “the victim of inadequate presentation” (id.,
p. 3), incorrectly followed Wyckoff, and, upon careful ex
amination of statutory and judicial history first presented
to this Court in petitioner’s brief on the present appeal (id.,
p. 5) and upon analysis of decisions of the Supreme Court
and this Court subsequent to Brown v. Bayfield (id., pp.
8-10), concluded that the latter decision was wrong and
should be overruled (id., pp. 3, 10)—necessarily by this
Court en banc.
Reasons for Granting Rehearing en Banc
This case raises a question of cardinal importance in
volving the relation of state and federal courts under the
Supremacy Clause of the Constitution and the national
habeas corpus jurisdiction created by Congress in 1867 and
now codified in 28 U. S. C. § 2241(c) (3) (1958). That ques
tion is whether a federal district court empowered to dis
charge state prisoners “in custody in violation of the Con
stitution or laws . . . of the United States,” ibid., can and
should decline to entertain, pending state court trials and
appeals, a factually detailed application for habeas corpus
by a prisoner who alleges that she is confined under mesne
process of a state criminal court in a prosecution which is
groundless because aimed at punishing conduct protected
by the First and Fourteenth Amendments, a prosecution
whose design and effect are to harass and intimidate the
7
prisoner and others similarly situated so as to repress their
exercise of federal freedoms of expression to encourage
Negro voter registration in a state which has unconstitu
tionally disfranchised the Negro. In a somewhat similar
case, this Court held in Brown v. Bayfield, supra, that a
federal habeas corpus court must stay its hand and let the
harassment prosecution proceed.
Cognizant of this Court’s rule of practice that one panel
of the Court does not overrule a decision by another, peti
tioner-appellant unsuccessfully sought before Judges Jones,
Brown and Sheehy to distinguish Brown v. BayfieldJ She
also preserved in her brief, however, the contention that
Brown v. B.ayfield was incorrectly decided and should be
overturned. (Br. pp. 9-36.) She now seeks to present this
latter contention to the full bench.
A more important question can hardly be imagined. Upon
its correct disposition depends in large measure the powTer
and obligation of the federal district courts in this Circuit
to protect individuals from state prosecutions which are
used as instruments to repress them and deprive them of
their federally guaranteed freedoms. As the Supreme
Court has recently recognized, “The assumption that de
fense of a criminal prosecution will generally assure ample
4 Brown v. Bayfield did not involve, as does the present case,
voter registration activities. Petitioner-appellant’s argument, in
her brief before the panel, that this distinction compelled a differ
ent result under a recognized exception to the doctrine of exhaus
tion of state remedies is reproduced in Appendix III, infra. If
Brown v. Bayfield were correctly decided, petitioner-appellant
could not in candor contend that its extension to the present case
alone presented a question of sufficient importance to occupy the
Court en banc; hence, the present petition addresses itself to the
overruling of Brown. With all deference, however, petitioner-
appellant continues to believe that the argument presented in Ap
pendix III is sound; she wishes to preserve this narrower ground
for reversal in the event that rehearing en banc is granted or fur
ther appellate proceedings taken.
8
vindication of constitutional rights is unfounded in such
cases,” Dombrowski v. Pfister, 380 U. S. 479, 486 (1965);
prosecution is itself a potent weapon for the destruction of
constitutional liberties, cf. Dilworth v. Riner, 343 F. 2d 226,
231-232 (5th Cir. 1965); thus, reversal of a state criminal
conviction by the Supreme Court of the United States or a
post-conviction federal habeas corpus court comes after the
damage has been done. See Amsterdam, Criminal Prosecu
tions Affecting Federally Guaranteed Civil Rights: Federal
Removal and Habeas Corpus Jurisdiction to Abort State
Court Trial, 113 U. Pa. L. Rev. 793, 794-805, 828-842 (1965).
Due implementation of the Supremacy Clause requires
federal judicial intervention to terminate such state prose
cutions in their inception.
It is petitioner-appellant’s contention that the Congress
of the United States recognized this truth following the
Civil War, and, between 1866 and 1875, gave the federal
courts of first instance ample jurisdiction to do the job.
The three essential jurisdictional grants were the habeas
corpus statute of 1867 involved in the present appeal; the
civil rights removal statute of 1866, extended in 1875, now
28 U. S. C. § 1443 (1958), see Rachel v. Georgia, 342 F. 2d
336 (5th Cir. 1965); and the grant of civil rights equitable
jurisdiction of 1871, now 28 U. S. C. § 1343 (1958).
Judge Brown’s opinion correctly recognizes these three
remedies as “parallel systems of effective federal redress
against state inspired, state caused, state permitted, in
stances of unequal treatment” (slip opinion, p. 8). Under
this Court’s construction of the civil rights removal statute,
federal removal jurisdiction is satisfied by a showing that
the state prosecution is effected for reasons of racial dis
crimination. Peacock v. City of Greenwood, 5th Cir., No.
21655, decided June 22, 1965, slip opinion, p. 4; followed in
9
Cox v. Louisiana, 5th Cir., No. 22657, stay granted June 29,
1965. The Supreme Court has lately made clear the re
sponsibility of federal district courts to enjoin state prose
cutions conducted for purposes of harassment, DombrowsU
v. Pfister, supra. “Thus we have now passed the point
where Federal Courts can refuse to hear evidence in sup
port of a factually detailed claim that a state criminal
prosecution has been initiated to effectuate [a] racially
motivated denial of constitutional rights” (slip opinion, p
10) .
To hold that habeas corpus is not available to a petitioner
held subject to a racially motivated harassment prosecu
tion is to relegate habeas corpus to a second class role in
the federal remedial scheme—a result wholly at odds
with Congressional intent. The legislative history of the
1867 habeas corpus statute makes clear beyond peradven-
ture that the Great Writ was meant to be available
in precisely such cases as petitioner-appellant’s. Brown
v. Ray field wrongly holds to the contrary. That deci
sion, as Judge Brown has pointed out in the present ap
peal, was rendered by a court which did not have before it
the pertinent historical materials essential to enlightened
decision (slip opinion, p. 5). Moreover, confined by the pres
entation of that appeal, the Brown v. Ray field court began
its analysis from the demonstrably incorrect premise that
the case was governed by 28 U. S. C. § 2254 (1958), a statute
which demands exhaustion of state remedies only in post
conviction habeas corpus cases (see id., pp. 5-6). Such a
decision by a panel, in a matter of so great importance, de
mands reconsideration by the Court en banc.
Pursuant to this Court’s Eule 29, petitioner-appellant
presents her arguments on the merits for the overruling of
Brown v. Bayfield and the reversal of the order of the dis-
10
triet court in a separate supporting brief, infra. She
respectfully submits that the materials there collected de
serve the Court’s examination and, upon examination, com
pel the conclusion that both Brown v. Ray field and the order
here appealed from are incorrect.
Respectfully submitted,
4
H enry M. A ronson
538% North Farish Street
Jackson, Mississippi 39202
J ack Greenberg
J ames M. N abrit, III
M elvyn Zarr
10 Columbus Circle
New York, New York 10019
A n th o n y G. A msterdam
3400 Chestnut Street
Philadelphia, Pa. 19104
Of counsel:
Attorneys for Appellant
R. J ess B rown
Carsie A . H all
J ack H . Y otjng
CERTIFICATE
I hereby certify that the foregoing Petition for Rehearing
en Banc is presented in good faith and not for purposes of
delay.
Attorney for Appellant
I n t h e
Mattel (tori nt Kppzulz
F or t h e F if t h C ircuit
No. 22241
J an
Appellant,
J oe S ams, J r., County Attorney for Lowndes
County, Mississippi, et al.,
Appellees.
o n a p p e a l p r o m t h e u n i t e d s t a t e s d i s t r i c t c o u r t e o e t h e
NO RTH ERN DISTRICT OP M ISSISSIPPI
BRIEF IN SUPPORT OF PETITION FOR
REHEARING EN BANC
A R G U M E N T
I.
Federal Habeas Corpus Courts Are Empowered to
Discharge From Mesne Restraints Petitioners Held to
Answer Unconstitutional State Prosecutions.
The national habeas corpus statute, 28 U. S. C. § 2241
(c)(3) (1958), authorizes federal courts to discharge on
habeas corpus state prisoners “in custody in violation of
the Constitution or laws . . . of the United States.” It is
well settled that the section empowers release before trial
of persons detained on state criminal charges which the
12
State cannot constitutionally apply to their conduct. Wild-
enhus’s Case, 120 U. S. 1 (1887); In re Loney, 134 U. S. 372
(1890); In re Neagle, 135 U. S. 1 (1890); Hunter v. Wood,
209 U. S. 205 (1908); Ex parte Boy all, 117 IT. S. 241, 245-
250 (1886) (dictum); Cook v. Hart, 146 U. S. 183, 194-195
(1892) (dictum); Whitten v. Tomlinson, 160 U. S. 231, 241-
242 (1895) (dictum); Baker v. Grice, 169 U. S. 284, 290
(1898) (dictum); United States ex rel. Drury v. Lewis, 200
U. S. 1, 6-8 (1906) (dictum).
II.
P etitioner-A ppellant’s P rosecu tion Is U nconstitutional.
The state statute under which this petitioner is charged
cannot constitutionally be applied to petitioner’s conduct
for several reasons:
(1) If Miss. Code A n n . § 2666(c) (Recomp. Vol. 1956),
Appendix II, p. 17a, infra, makes it criminal to work in a
courthouse for COFO as a voter registration worker, receiv
ing from COFO adequate lodging and food and from peti
tioner’s parents all additional money required to meet peti
tioner’s needs (with assurance of further funds both from
COFO and from petitioner’s mother should they be needed),
then the statute abridges petitioner’s freedom of speech (see
Thomas v. Collins, 323 U. S. 516 (1945); Staub v. Baxley,
355 U. S. 313 (1958); N. A. A. C. P. v. Button, 371 U. S. 415
(1963); Brotherhood of Railroad Trainmen v. Virginia ex
rel. Virginia State Bar, 377 U. S. 1 (1964), holding that or
ganizational activity like petitioner’s is protected speech),
freedom to associate with COFO (see, e.g., N. A. A. C. P.
v. Alabama, 357 U. S. 449 (1958); Bates v. Little Rock, 361
U. S. 516 (1960); Shelton v. Tucker, 364 U. S. 479 (1960);
Gibson v. Florida Legislative Investigating Committee, 372
U. S. 539 (1963), striking down lesser impediments than
absolute prohibition with respect to associations like
COFO), and freedom to assemble in the courthouse with
Negro voting registration applicants and other COFO
workers for the purpose of giving the applicants support
(this is a fortiori from Edwards v. South Carolina, 372
IT. S. 229 (1963); Fields v. South Carolina, 375 IT. S. 44
(1963) ; Henry v. Rock IliU, 376 IT. S. 776 (1964); Cox v.
Louisiana, 379 IT. S. 536 (1965) ). It also abridges peti
tioner’s Fourteenth Amendment privilege to assist, en
courage and educate Negro citizens to register to vote in
federal elections (see Hague v. C. I. 0. 307 U. S. 496 (1939)
(opinion of Mr. Justice Boberts)) and the Fourteenth
Amendment privilege of those Negroes to register to vote
in federal elections (cf. United Stales v. Classic, 313 IT. 8.
299 (1941)), as well as their Fifteenth Amendment free
dom to register to vote in all elections free of racial dis
crimination (cf. United States v. Raines, 362 IT. S. 17
(I960)). If the statute does not apply to the state of facts
described in the first paragraph, then there is no factual
basis whatever for the charge against petitioner, and her
punishment under the statute deprives her of due process
of law for that reason. Thompson v. Louisville, 362 IT. S.
199 (1960); Garner v. Louisiana, 370 U. S. 157 (1961);
Fields v. Fairfield, 375 U. S. 248 (1963); Barr v. Columbia,
378 U. S. 146 (1964).
(2) Application of the statute to petitioner is also pre
cluded because the design and effect of this prosecution is
to enforce a policy of racial discrimination by public of
ficials of the State of Mississippi in violation of the Four
teenth and Fifteenth Amendments and 42 U. S. C. A. § 1971
(1964) ; 42 U. S. C. §§ 1983, 1985 (1958). See Dombrow-
ski v. Pfister, 380 IT. S. 479 (1965). It is immaterial
14
that the policy is not expressed in Miss. Code A n n . § 2666
(c) (Recomp. Vol. 1956) itself. See Peterson v. Greenville,
373 U. S. 244 (1963); Lombard v. Louisiana, 373 U. S. 267
(1963); Robinson v. Florida, 378 U. S. 153 (1964). The
policy pervades Mississippi’s statute books as well as its
public life. See, e.g., Miss. Const., art. 8, V 201, 205, 207;
art, 10, § 225; art. 12, §§ 241-A , 244; Miss. Code A n n .
§§ 2056(7), 2339, 4065.3 (Recomp. Vols. 1956); Miss. Laws,
1st Extra. Sess. 1962, chs. 4, 9, 16, 20.
(3) Finally, Miss. Code A n n . § 2666(c) (Recomp. Vol.
1956) is on its face void for vagueness in that it makes
criminality of a salaried person turn on whether the salary
amounts to “reasonable compensation.” See cases cited in
Note, 109 U. Pa. L. R ev. 67, 92-93 (1960), particularly
United States v. L. Cohen Grocery Co., 255 U. S. 81 (1921),
and Cline v. Frink Dairy Co., 274 U. S. 445 (1927). Such
indefiniteness in a criminal statute is unallowable under
the Fourteenth Amendment, at least where greater defi
niteness is practicable (as it obviously is here: compare
the provision of § 2666(c) applicable to persons having an
income from property or investment, which requires that
the income be “sufficient for . . . support and maintenance”).
The limited inroad into Cohen made by United States v.
National Dairy Prods. Co., 372 IT. S. 29 (1963), expressly
distinguishing Cohen, 372 U. S. at 36, does not save the
statute, since it operates in the First Amendment area,
see, e.g., N. A. A. C. P. v. Button, 371 U. S. 415 (1963);
Wright v. Georgia, 373 U. S. 284 (1963); Bouie v. Columbia,
378 U. S. 347 (1964).
15
III.
A Federal Habeas Corpus A pplicant in P etitioner-
A ppellant’s S ituation Is N ot R equired to Exhaust State
Judicial R em edies.
Since petitioner is thus in custody in violation of the Con
stitution, the only obstacle to her release on habeas corpus
in advance of state trial is the doctrine of exhaustion of
state remedies. Petitioner has not, and contends she need
not, exhaust Mississippi state remedies on the facts of this
case; the District Court and the panel held that Application
of Wyckoff and Brown v. Ray field5 obliged her to do so.
Wyckoff does not so hold; to the extent that Brown v. Ray-
field does,6 it is erroneous and should be reconsidered.
(1) Wyckoff, Brown v. Ray field and 28 U. S. C. § 2254.
In Wyckoff the petitioner, a freedom rider, was convicted
by an Ex Officio Justice of the Peace of Hinds County, Mis
sissippi, of breach of the peace (congregating with others
with intent to provoke a breach of the peace and refusing
to move on at the lawful order of a peace officer), arising
out of her attempt, with other freedom riders, to integrate
the bus terminal waiting room in Jackson. She was sen
tenced to $200 fine and two months imprisonment, the im
prisonment sentence suspended. Under Mississippi law,
her conviction could be appealed for trial de novo before a
5 Application of Wyckoff, 196 F. Supp. 515 (S. D. Miss. 1961),
6 R ace R elations L. R p t r , 786, petition for immediate hearing
and for leave to proceed on original papers denied, id. at 793 (5th
Cir. 1961), petition for habeas corpus denied, id. at 794 (Circuit
Justice Black, with whom Mr. Justice Clark concurs) ; Brown v.
Rayfield, 320 F. 2d 96 (5th Cir. 1963), cert, denied, 375 U. S. 902
(1963).
6 But see Appendix III infra.
16
jury in the County Court, and from conviction by the
County Court an appeal lay to the Circuit Court, thence
to the Supreme Court of Mississippi. Mississippi statutes
allowed the appeals without cost or bond on jjroper filing of
a pauper’s oath. Petitioner, who was represented by re
tained counsel at the justice’s trial, did not appeal. Within
the period for appeal she filed a federal habeas corpus peti
tion, asserting that the conduct for which she had been
convicted was protected, inter alia, by the First and Four
teenth Amendments, that the prosecution was brought to
enforce racial segregation in violation of the Equal Protec
tion Clause of the Fourteenth Amendment, and that she had
been denied a federally guaranteed right of jury trial in
the justice court. She f urther alleged that she was unable to
bear the cost of taking state appeals. The respondent’s
return denied that the purpose of the prosecution was to
enforce racial segregation, alleged that the trial and con
viction were fair and regular, and asserted that state rem
edies were not exhausted as required by 28 U. S. C. § 2254
(1958). After hearing, the district court denied the petition
on the ground of failure to exhaust state remedies, holding
that the record in the justice court showed that petitioner
had waived jury trial, pointing out that petitioner still had
an available appeal for trial de novo in the County Court,
and noting that Mississippi provided a pauper’s procedure
for taking the appeal and that petitioner was represented by
able counsel. Because the respondent’s return had denied
that the prosecution was designed to enforce unconstitu
tional segregation and petitioner had offered no evidence in
support of her allegations to this effect, the district court
took petitioner’s claims in this respect as unproved. Peti
tioner noted an appeal and asked this Court for leave to pro
ceed on the original papers and for an immediate hearing.
The Court denied both motions, agreeing with the district
17
court that petitioner had failed to exhaust state remedies
under 28 U. S. C. § 2254.
In Brown v. Bayfield, the two habeas petitioners were
arrested while walking in tandem, in an orderly fashion,
with four other individuals, on a street in Jackson, Missis
sippi, carrying an American flag and a placard protesting
racial discrimination. Charged with violation of a Jackson
ordinance prohibiting parading without a license, they were
entitled to trial in a justice court and thereafter to appeals
as in Wyckoff. Apparently prior to their justice trial/
they petitioned for federal habeas corpus, asserting that
the conduct for which they were charged could not con
sistently with the First and Fourteenth Amendments be
punished by the State. Petitioners undertook to state a case
of “circumstances rendering [state remedies] . . . ineffec
tive to protect [their] . . . rights” within 28 U. S. C. § 2254
by allegations (a) that all Mississippi public officials were
committed to a policy of racial discrimination, as demon
strated by Mississippi’s massive resistance legislation; (b)
that judges of the various state courts (all elected officials)
gave tacit if not open support to the discriminatory policy
in their election campaigns, and that the policy was reflected
in their judicial decisions and opinions; and (e) that, by
reason of the congestion of civil rights cases in the Missis
sippi courts, and delays compelled by Mississippi trial and 7
7 This Court’s opinion in Broivn v. Bayfield does not make clear
whether the federal habeas corpus application in that case was
filed prior to or after the justice trial; language in the opinion
suggests the latter; and the present petitioner-appellant briefed
and argued the appeal before the panel on that assumption. Judge
Brown’s concurring opinion, based upon examination of the Brown
v. Bayfield record, indicates that Brown was a pretrial habeas case,
slip opinion, p. 6; and petitioner-appellant’s present attack on
Brown proceeds from that premise.
18
appellate procedures, the June 1961 freedom rider cases
had not yet been disposed of by the Mississippi Supreme
Court in the summer of 1963, and a like or greater delay
was in prospect for the petitioners. The return denied that
the Mississippi courts would not fairly protect petitioners’
federal rights, and asserted that § 2254 precluded enter
taining the petitions. The district court denied relief on
this ground; pending appeal the petitioners posted bond
and were released from jail; this Court, relying on the
Wyckoff decision, dismissed the appeals for insubstantiality
on the merits.
Any evaluation of Brown v. Bayfield must begin with the
observation that this Court was there misled by the presen
tation of the appeal into the quite erroneous supposition that
the case was governed by 28 U. S. C. § 2254. That statute
has no application whatever to federal habeas corpus pe
titions filed in advance of a state court trial. The section
applies only to “a person in custody pursuant to the judg
ment of a State court,” and the legislative history makes
clear what in any event would be apparent (e.g., by com
parison of this language with that of 28 U. S. C. § 2253
(1958)) : that the phrase “judgment of a State court” was
chosen to cover post-conviction habeas cases and to exclude
cases in which federal habeas corpus was sought prior to
state trial. The original section in the House bill which
became the 1948 Judicial Code required exhaustion of avail
able state remedies by a habeas petitioner who was “in
custody pursuant to the judgment of a State court or au
thority of a State officer.” See H. R. 3214, 80th Cong.,
§ 2254. The Senate Committee on the Judiciary rewrote the
section to make several changes, among them omission of
the phrase “or authority of a State officer.” The committee
report explains the purpose of the change to “ . . . eliminate
19
from the prohibition of the section applications on behalf
of prisoners in custody under authority of a State officer
but whose custody has not been directed by the judgment
of a State court. If the section were applied to applica
tions by persons detained solely under authority of a State
officer it would unduly hamper Federal courts in the pro
tection of Federal officers prosecuted for acts committed
in the course of official duty.” Sen. Rep. No. 1559, 80th
Cong., 2d Sess. 9 (1948). Moreover, the origins of this 1948
statute, disclosing the concerns to which it responded,
make patent that § 2254 has not even analogical significance
in pretrial habeas cases. See Amsterdam, Criminal Prose
cutions Affecting Federally Guaranteed Civil Rights: Fed
eral Removal and Habeas Corpus Jurisdiction to Abort
State Court Trial, 113 IT. Pa. L. Rev. 793, 890 n. 415, 902-
903 (1965). Accepting arguendo the decision in Wychoff
that § 2254 applies to a prisoner confined under a justice
court conviction notwithstanding state law gives him a
right of trial de novo in a court of record, the statute
plainly had no application to the pre-justice-trial petition
filed in Brown v. Ray field, and Brown was fundamentally
in error in supposing Wychoff apposite.
§ 2254 is merely a partial codification of the doctrine
of exhaustion of state remedies, which was judicially de
veloped in and following Ex parte Roy all, 117 U. S. 241
(1886), and which, as a flexible judicial doctrine of comity,
does apply to pretrial federal habeas petitions. See in
addition to Roy all, e.g., Cooh v. Hart, 146 U. S. 183
(1892); New York v. Eno, 155 U. S. 89 (1894); Whitten v.
Tomlinson, 160 U. S. 231 (1895); Moss v. Glenn, 189 U. S.
506 (1903); United States ex rel. Drury v. Lewis, 200 U. S.
1 (1906). The origin and scope of that judicially developed
doctrine in relation to the function of federal habeas corpus
20
in civil rights cases is considered in the ensuing sections
of this brief; for present purposes it is sufficient to
note that the doctrine is a judicial creature, unfettered
by statute against judicial evolution, and which “prescribes
only what should ‘ordinarily’ be the proper procedure; all
the cited cases from Ex parte Royall to [Ex parte] Hawk
[321 U. S. 114 (1944)3 recognize that much cannot be fore
seen, and that ‘special circumstances’ justify departure
from rules designed to regulate the usual case. The excep
tions are few but they exist. Other situations may de
velop. . . . ” Harr v. Burford, 339 U. S. 200, 210 (1950)
(dictum). See, e.g., the authorities cited at p. 12, supra.
To determine the appropriate application of the judicial
doctrine to such cases as the present one and Brown. v.
Ray field, it will be necessary to canvass the statutory his
tory of federal habeas corpus jurisdiction and the evolu
tion of the court-made exhaustion requirement in relation
to it. From such a survey the conclusion clearly emerges
that federal habeas corpus is immediately available to one
in petitioner’s circumstances.
(2) Legislative history.
Habits of thought generated by three quarters of a cen
tury of application of the exhaustion doctrine tend to make
American courts and lawyers today think of federal habeas
corpus almost exclusively as a post-conviction remedy. But
the nineteenth century Congresses which expanded the
habeas corpus jurisdiction to its present scope8 thought in * 1
8 The present federal habeas corpus jurisdiction described in
28 U. S. C. § 2241 (1958), is the product of statutes of 1789,
1833, 1842 and 1867. Act of September 24, 1789, ch. 20, § 14,
1 Stat. 73, 81-82; Act of March 2, 1833, ch. 57, 4 Stat. 632; Act
of August 29, 1842, eh. 257, 5 Stat. 539-540; Act of February 5,
1867, ch. 28, 14 Stat. 385. Each succeeding statute added to the
previously given grant of habeas power. The four grants were
21
no such terms. Prior to the twentieth century, post-convic
tion use of the writ was rare though not unknown;* 9 the
English courts had more frequently used the writ in its
various forms “for removing prisoners from one court
into another, for the more easy administration of justice” ;10
consolidated without substantial change in Rev. Stat. §§ 751-753,
which remained in force without significant modification until the
1948 revision of Title 28, U. S. C. That revision produced present
§ 2241, whose “changes in phraseology” were not designed to affect
substantive change. See Revisor’s Note to 28 U. S. C. § 2241 (1958).
9 Examination of the texts clearly indicates that in England
the writ was most commonly used, and thought of, as pretrial,
not post-conviction, process. E.g., 3 Com yns. D igest of t h e L aws
of E ngland 454-455 (1785); 2 H ale , P leas of t h e Crow n 143-
148, 210-211 (1st American ed„ Philadelphia, 1847); IV B acon’s
A bridgm ent 563-605, Habeas Corpus (Philadelphia 1844). One
of the relatively infrequent instances of its post-conviction use
is the celebrated Bushell’s case, Vaughan, 135, 6 How. St. Tr. 999,
124 Eng. Rep. 1006 (1670), discharging petitioners from a con
tempt commitment. Several of the precedents cited in Bushell’s
case involve similar summary commitment. In this country, the
Supreme Court of the United States early employed the federal
writ in behalf of persons committed for trial, to release them
on bail, United States v. Hamilton, 3 Dali. 17 (U. S. 1795), or
to discharge them for want of probable cause, Ex parte Bollman,
4 Cranch 75 (1807) ; but in Ex parte Watkins, 3 Pet. 193 (1830),
the Court held that where the respondent’s return to the writ
showed that the petitioner was held by virtue of the judgment
of a court having jurisdiction, the inquiry on habeas corpus ended
and no reexamination would be made of the lawfulness of the
judgment. Watkins thus restricted post-conviction use of habeas
corpus to a very narrow compass; it was only with Ex parte Lange,
18 Wall. 163 (1873), that expansion began via the “jurisdictional”
fiction, and only with Johnson v. Zerbst, 304 U. S. 458 (1938)
that federal habeas emerged from the fiction in its modern role
as a post-conviction remedy. See note 14 infra. The state courts,
too, generally disallowed postconviction use of the writ prior to
the twentieth century. See cases collected in Thompson, Abuses
of the Writ of Habeas Corpus, 18 A m . L. R ev . 1, 17-18 n. 1 (1884).
See also Oaks, Habeas Corpus in the States, 32 U. Ch i L R ev 243
258-264 (1965). ‘ ’
10 3 Blackstone Commentaries 129 (6 th ed., Dublin 1775).
Blackstone here refers to forms of the writ other than habeas
corpus ad subjiciendum.
22
common-law habeas corpus ad subjiciendum developed
principally as a remedy against executive detention with
out, or prior to, judicial trial;11 and the great Habeas Corpus
Act of 1679, 31 Charles II, ch. 2, as Blaekstone noted, ex
tended by its terms “only to the case of commitments for
such criminal charge, as can produce no inconvenience to
public justice by a temporary enlargement of the prisoner;
all other cases of unjust imprisonment being left to the
habeas corpus at common law.” 12 Consistently with this
background, the several congressional statutes extending
federal habeas corpus to state prisoners13 were clearly de
signed, in the classes of cases with which each was princi
pally concerned, to give prisoners held by state authorities
in advance of state court proceedings an immediate federal
judicial proceeding to secure their release.14 The history of
11 See 9 H oldsw orth, A H istory op E n g lish L aw 111-119
(1926).
12 3 B lackstone, supra note 10, at 137. For the history of the act
see 9 H oldsw orth, supra note 11, at 115-119; Ch a f e e , H ow H u
m an E ights Got I nto t h e Constitution 51-64 (1952).
13 The habeas corpus jurisdiction given by the First Judiciary Act
by its express terms did not extend to state prisoners except where
they were “necessary to be brought into court to testify.” Act of
September 24, 1789, ch. 20, § 14, 1 Stat. 73, 81-82.
14 The conclusion in note 9 supra that development of federal
habeas corpus as a post-conviction remedy may be dated at the
earliest from 1873 and is largely a twentieth century phenomenon
is supported by all commentators. See, e.g., Fay v. Noia, 372 U. S.
391 (1963) ; Note, The Freedom Writ—The Expanding Use of
Federal Habeas Corpus, 61 H arv. L. R ev . 657 (1948); Hart,
Foreword, The Supreme Court, 1958 Term, 73 H arv. L. E ev . 84,
101-121 (1959) ; Reitz, Federal Habeas Corpus: Postconviction
Remedy for State Prisoners, 108 U. P a . L. R ev . 461 (1960); Reitz,
Federal Habeas Corpus: Impact of an Abortive State Proceeding,
74 H arv. L. E ev . 1315 (1961); Brennan, Federal Habeas Corpus
and State Prisoners: An Exercise in Federalism, 7 U tah L. R ev .
423 (1961); Bator, Finality in Criminal Law and Federal Habeas
Corpus for State Prisoners, 76 H arv. L. R ev . 441 (1963) ; Note,
Federal Habeas Corpus for State Prisoners: The Isolation Prin
ciple, 39 N. Y. U. L. R ev . 78 (1964).
23
the first two of these enactments, in 1833 and 1842, was
carefully examined in In re Neagle, 135 U. S. 1, 70-75
(1890), and the conclusion drawn that their whole purpose
was to allow federal judicial intervention into the state
criminal process before state court trial. Indeed, no other
conclusion is possible. The Force Act of March 2, 1833,
ch. 57, 4 Stat. 632, was Congress’ response to John C. Cal
houn and his threat to take South Carolina out of the Union
in resistance to the Tariff. See 1 M orison & C ommager,
Grow th of th e A merican R epu blic 475-485 (4th ed. 1950);
Fay v. Noia, 372 U. S. 391, 401 n. 9 (1963). The Nullifica
tion Ordinance was an open denial of federal supremacy,
and it was “apparent that the constitution of the courts in
South Carolina makes it necessary to give the revenue offi
cers the right to sue in the federal courts.” Cong. Debates,
vol. 9, pt. 1, 260 (Mr. Wilkins, who reported the bill and
was its floor manager in the Senate, id. at 150 (1/21/33),
246 (1/28/33, 1/29/33)); see also Mr. Frelinghuysen’s re
marks, id. at 329-332 (2/2/33). Hence Congress responded
by extending the civil jurisdiction of the federal courts to
all cases arising under the revenue laws (§2), by authoriz
ing removal of civil and criminal cases against federal
revenue officers (§3), and by giving the federal courts and
judges habeas corpus power to discharge from state custody
all persons “in jail or confinement, where he or they shall
be committed or confined on, or by any authority or law,
for any act done, or omitted to be done, in pursuance of a
law of the United States, or any order, process, or decree,
of any judge or court thereof. . . . ” (§ 7, 4 Stat. 634). The
clear purpose of these provisions as a lot was wholly to
supersede state court jurisdiction in cases affecting the
tariff and to give the federal courts power immediately and
effectively to enforce the tariff against concerted state re
24
sistance, including state judicial resistance. Similarly, the
Act of August 29, 1842, ch. 257, 5 Stat. 539-540, was de
signed to cope with the problem of the famous McLeod
case, in which the New York courts nearly touched off a
major international incident by refusing to relinquish juris
diction over a British subject held for murder, who claimed
that the acts with which he was charged were done under
authority of the British government. People v. McLeod,
25 Wend. 482 (Sup. Ct. N. Y. 1841). McLeod was acquitted
at his trial, but the need for an expeditious federal remedy
to abort the state court process in such cases was strongly
felt, and the 1842 statute was its product. See the .speech
of Mr. Berrien, who introduced the Senate bill, Cong.,
Globe, 27th Cong., 2d Sess. 444 (4/26/42), quoted in Neagle,
135 U. S. at 71-72.
Thus the thirty-ninth Congress, which in 1867 further
extended the federal habeas corpus jurisdiction to “all cases
where any person may be restrained of his or her liberty
in violation of the constitution, or of any treaty or law of
the United States,” acted against a background of legisla
tive practice which had previously employed the federal
writ to discharge individuals held for state trial, in advance
of that trial, in cases where their detention for subjection
to the state criminal process was itself destructive of fed
eral interests that the state judicial proceedings could not
be expected to vindicate. The Act of February 5, 1867, ch.
28, 14 Stat, 385, predecessor of the present 28 U. S. C.
§ 2241(c) (3) (1958), was Reconstruction legislation. Its
first section granted new habeas corpus power in the lan
guage quoted above, made elaborate provision for sum
mary hearing and summary disposition by the federal
judges, and provided that:
25
“ . . . pending such proceedings or appeal, and until
final judgment be rendered therein, and after final
judgment of discharge in the same, any proceeding
against such person so alleged to be restrained of his
or her liberty in any State court, or by or under the
authority of any State, for any matter or thing so
heard and determined, under and by virtue of such
writ of habeas corpus, shall be deemed null and void.”
§ 1, 14 Stat. 386.15
Its second section gave another and different remedy to
state criminal defendants having federal constitutional de
fenses: review of the highest state court judgment by the
Supreme Court of the United States on writ of error. 14
Stat. 386-387. In view of the juxtaposition of these reme
dies, the provisions expressly recognizing that federal
habeas corpus courts would anticipate and forestall state
judicial processes, and the pre-1867 usage with the writ,
one need hardly plumb the legislative debates to conclude,
as the Supreme Court recently has, that: “Congress seems
to have had no thought . . . that a state prisoner should
abide state court determination of his constitutional de
fensê —the necessary predicate of direct review by [the
Supreme Court] . . .—before resorting to federal habeas
corpus. Rather, a remedy almost in the nature of removal
from the state to the federal courts of state prisoners’ con
stitutional contentions seems to have been envisaged.” Fay
v. Noia, 372 U. S. 391, 416 (1963). The legislative materials,
moreover, are eloquent on the point.
The genesis of the statute was a resolution offered by
Representative Shellabarger shortly after the convening
15 The successor of this provision is present 28 U. S. C. § 2251
(1958), under which petitioner herein has moved for a stay of
state proceedings.
26
of the Congress in December, 1865 and immediately agreed
to by the House, Cong. Globe, 39th Cong., 1st Sess. 87
(12/19/65): “Resolved, That the Committee on the Judi
ciary be directed to inquire and report to this House, as
soon as practicable, by bill or otherwise, what legislation
is necessary to enable the courts of the United States to en
force the freedom of the wives and soldiers of the United
States under the joint resolution of Congress of March 3,
1865, and also to enforce the liberty of all persons under
the operation of the constitutional amendment abolishing
slavery.” There is no pertinent “joint resolution” of “March
3, 1865,” and the evidence is persuasive that the “March 3”
action intended by the reference is the Act of March 3,
1863, ch. 81, 12 Stat. 755, a statute protecting Union offi
cers and other persons from civil or criminal liability
for acts or omissions during the rebellion under Presiden
tial order or law of Congress, and authorizing removal
from the state to federal courts of civil or criminal actions
against such persons.16 That this was Shellabarger’s refer
ence appears from the House Judiciary Committee’s sub
sequent reporting of a bill17 which became the Act of May
16 Bator, Finality in Criminal Law and Federal Habeas Corpus
for State Prisoners, 76 H arv. L. R ev . 441, 476 n. 80 (1963), reaches
this conclusion. March 3, 1865 was the date of House concurrence
in a Senate concurrent resolution requesting the President to
transmit the proposed Thirteenth Amendment to the state execu
tives, Cong. Globe, 38th Cong., 2d Sess. 1416 (3/3/65), but Shella-
barger could not have meant to refer to this resolution, which had
no substantive import. March 3, 1865 was also the date of enact
ment of the Preedmen’s Bureau Act, ch. 90, 13 Stat. 507, but
matters involving implementation of that act would doubtless have
been referred to the House Select Committee on Freedmen, estab
lished by resolution, Cong. Globe, 39th Cong., 1st Sess. 14
(12/6/65), and which reported, for example, the Amendatory
Freedmen’s Bureau Act of July 16, 1866, ch. 200, 14 Stat. 173.
See Cong. Globe, 39th Cong., 1st Sess, 2743 (5/22/66).
17 The bill was apparently numbered H. R. 238 of the 39th Con
gress, although some pages of the Globe refer to it as H. R, 298.
27
11, 1866, ch. 80, 14 Stat. 46, substantially amending the
removal procedures of the 1863 act to prevent their obstruc
tion by the state courts,1S * * 18 an act which in turn was amended
by the Act of February 5, 1867, ch. 27, 14 Stat. 385, au
thorizing the issuance of writs of habeas corpus cum causa
by the federal courts to bring before them the bodies of
defendants whose cases had been removed from the state
courts under the 1863 removal provisions.19 On March 15,
1866, in debate on the bill which became the May 11 act,
It was the product of a House Judiciary Committee amendment in
the nature of a substitute to a bill introduced by Eepresentative
Welker. Introduced at Cong. Globe, 39th Cong., 1st Sess. 196
(1/11/66) ; reported, id. at 1368 (3/13/66); taken up, id. at 1387
(3/14/66).
18 See id. at 1387-1388 (Cook, who reported the bill, id. at 1368
(3/13/66), and was its floor manager, id. at 1387 (3/14/66), in
the House, 3/14/66) ; 2054 (Clark, who reported the bill, id. at
1753 (4/4/66), and was its floor manager, id. at 1880 (4/11/66)
in the Senate, 4/20/66).
19 The act was reported by the Judiciary Committee in each
house. Id. at 4096 (7/24/66) (House), 4116 (7/24/66) (Senate).
Its purpose was to take from state custody defendants whose cases
had been removed into the federal courts, id. at 4096 (7/24/66)
(Wilson, who reported the bill and was its floor manager, ibid.,
in the House); Cong. Globe, 39th Cong., 2d Sess. 729 (1/25/67)
(Trumbull, chairman of the Judiciary Committee, who reported
the bill, Cong. Globe, 39th Cong., 2d Sess. 729 (1/25/67) in the
Senate), and thereby to permit the federal court to determine the
validity of the defendant’s detention under the arrest, ibid.
(Johnson, in the Senate). Together with the Act of May 11, see
supra, text at note 18, and the habeas corpus statute, this enact
ment evidences congressional concern to provide speedy and effi
cient federal judicial remedies for state court defendants. Con
temporaneously with these three bills, the bill which was to
become the First Civil Eights Act of April 9, 1866, ch. 31, 14 Stat.
27, was being processed through Congress. Section 3 of the act as
enacted created the civil rights removal jurisdiction now found in
28 U. S. C. § 1443(2) (1958), and adopted the procedures of the
1863 removal sections with “all acts amendatory thereof.” 14 Stat.
27.
28
Shellabarger returned to what appears the theme first
sounded in his resolution of the preceding December:
“Mr. S h e l l a b a r g e r . I wish to inquire of some mem
ber of the Judiciary Committee whether they intend
by this bill, or any other which they may have in
preparation, to provide for such cases as one which I
am about to describe, a case which came to my knowl
edge about the time of the convening of this Congress,
and which I now state in order to attract to it the at
tention of the committee, as it is one of a very large
class of similar cases.
“In Grant County, I believe, in the State of Ken
tucky, a provost marshal of the United States ordered
certain citizens to take to the jail of that county two
persons who were arrested and held as notorious guer
rillas. While executing this order the persons in charge
of these guerrillas, in order to prevent their attempted
escape, were obliged to fire at them; and by that
volley one of the guerrillas was killed and the other
wounded. The persons who took part in that transac
tion have been indicted by the grand jury of the county
for murder in the first degree; and one or two of them,
in order to avoid trial and the conviction which they
regarded as inevitable in that county, have been com
pelled to escape from the State.” Cong. Globe, 39th
Cong., 1st Sess. 1426 (3/15/66).
On July 25,1866 Mr. Lawrence of Ohio reported from the
House Judiciary Committee the bill which was subsequently
to be enacted as the habeas corpus statute, ch. 28, of Febru
ary 5, 1867. Questioned concerning a passage in the bill
which excluded from its operation certain military prison
ers, he said:
29
“Mr. L a w r e n c e , of Ohio. I will explain. On the 19th
of December last, my colleague [Mr. S h e l l a b a r g e r ]
introduced a resolution instructing the Judiciary Com
mittee to inquire and report to the House as soon as
practicable, by bill or otherwise, what legislation is
necessary to enable the courts of the United States to
enforce the freedom of the wife and children of soldiers
of the United States, and also to enforce the liberty
of all persons. Judge Ballard, of the district court of
Kentucky, decided that there was no act of Congress
giving courts of the United States jurisdiction to en
force the rights and liberties of such persons. In pur
suance of that resolution of my colleague this bill has
been introduced, the effect of wdiieh is to enlarge the
privilege of the writ of hobeas [sic] corpus, and to
make the jurisdiction of the courts and judges of the
United States coextensive with all the powers that
can be conferred upon them. It is a bill of the largest
liberty, and does not interfere with persons in mili
tary custody, or restrain the writ of habeas corpus
at all. I am satisfied there will not be a solitary ob
jection to this bill if it is understood by the House.”
Cong. Globe, 39th Cong., 1st Sess. 4151 (7/25/66).
The bill passed the House without further explanation.
Ibid. In the Senate, it was reported by Lyman Trumbull
of Illinois, chairman of the Judiciary Committee, id. at 4228
(7/27/66). As in the House, the question was raised of the
bill’s exception of military prisoners from its scope, id.
at 4229 (7/27/66) (Senator Davis of Kentucky), and Sena
tor Trumbull replied:
“ . . . I will state to the Senator from Kentucky
which he is probably aware of, that the habeas corpus
30
act of 1789, to which this bill is an amendment, confines
the jurisdiction of the United States courts in issuing
writs of habeas corpus to persons who are held under
United States laws. Now, a person might be held
under a State law in violation of the Constitution and
laws of the United States, and he ought to have in such
a case the benefit of the writ, and we agree that he
ought to have recourse to United States courts to show
that he was illegally imprisoned in violation of the
Constitution or laws of the United States.” Ibid.
This was the only discussion of the bill’s substance in the
upper house. The Senate passed it with a procedural
amendment in which the House concurred without debate.20
Floor discussion of the act of 1867 was thus quite limited.
But its proponents told the Congress all that seemed neces
sary when they explained its purpose to give “recourse
to the United States courts” (Senator Trumbull, supra) in
cases of federally illegal detention, and to expand the habeas
corpus jurisdiction to its constitutional limits (Representa
tive Lawrence, supra). There was no need to rehearse
again the many reasons why the state courts could not be
entrusted to enforce federal rights, or the many needs for
a supervening, imperative federal judicial remedy. Those
matters had recently been debated extensively in considera
tion of the Act of May 11, 1866, supra. The condition of
20 To meet Senator Johnson’s concern over the absence of terri
torial limitations on the power of the federal judges to issue habeas
corpus, see Cong. Globe, 39th Cong., 2d Sess. 730 (1/25/67), the
bill was amended to restrict the habeas grant to the courts and
judges “within their respective jurisdictions.” Id. at 790 (1/28/67).
It was so passed by the Senate, ibid., and the House concurred in
the amendment without debate, id. at 899 (1/31/67).
31
affairs in the state courts was well known. “Now, it so
happens, as the rebellion is passing away, as the rebel
soldiers and officers are returning to their homes, that I
may say thousands of suits are springing up all through
the land, especially where the rebellion prevailed, against
the loyal men of the country who endeavored to put the
rebellion down.” 21 “ [S]uits are springing up from one
end to the other; and these rebel courts are ready to de
cide against your Union men and acquit the rebel soldier.” 22
“A great many vexatious suits have been brought, and they
are still pending, and instances have been known—they
exist now—where Federal officers have been pushed very
hard and put to great hardships and expense, and sometimes
convicted of crime, for doing things which were right in the
line of duty, and which they were ordered to do and which
they could not refuse to do.” 23 In Kentucky, “They are
21 Cong. Globe, 39th Cong., 1st Sess. 2021 (Clerk in the Senate,
4/18/66). The excerpts of debate cited in this and succeeding
notes 22-28 are on consideration of the Act of May 11, 1866, supra.
Senator Clark reported and managed the bill which became the
act. Note 18 supra.
The oppressive volume of state litigation against Union men was
frequently noted in debate. E.g., Cong. Globe, 39th Cong., 1st
Sess. at 1880 (Clark in the Senate, 4/11/66), 1983 (Trumbull,
chairman of the Judiciary Committee, in the Senate, 4/17/66). It
was that there were over 3000 cases pending in Kentucky alone.
Id. at 1526, 1529 (McKee, of Kentucky, in the House, 3/20/66),
1983 (Clark in the Senate, 4/17/66), 2021 (Clark in the Senate,
4/18/66), 2054 (Wilson in the Senate, 4/20/66).
22 Id. at 2021 (Clark in the Senate, 4/18/66).
23 Id. at 1880 (Clark in the Senate, 4/11/66). Recognition that
the cost of defending suits and prosecutions might itself be ruinous
to defendant Union men found strong expression in the comments
of Senators Edmunds, id. at 2063-2064, and Howe, id. at 2064
(4/20/66), in debate of an amendment offered by Edmunds pro
viding that the Secretary of War should defend all actions within
the scope of the bill at government expense, and should indemnify
32
harassing, annoying, and even driving out of the State
the men who stood true to the flag by suits under the legis-
the individual defendant for damages, costs, fines and expenses.
The amendment, and one proposed by Howe providing for govern
ment defense of removed actions, were defeated on the ground
that they would overburden the government’s financial resources,
encourage litigation, encourage collusive actions, result in larger
jury verdicts in damage actions, and that defendants could be
adequately protected by private indemnifying bills. See id. at
2064-2066 (4/20/66). Apart from questions of expense, the injury
to state-court defendants of delay in the vindication of their federal
rights was pointed up by the debate between Senators Doolittle
and Hendricks, who opposed the provision making state judges
civilly liable for proceeding after removal of a case to the federal
court, and Senators Stewart and Clark, who supported it. Senator
Doolittle said that it should not be presumed state judges would
flout the federal removal statute. [In fact, state courts had re
peatedly obstructed removal by refusing to approve removal bonds,
by refusing to transmit the state record to the federal court, and
by proceeding against defendants notwithstanding removal, holding
the removal statute unconstitutional. See references in note 18,
supra.] Senator Stewart asked, in effect, what relief there was
for an indicted defendant if the state court did flout removal,
pointing out that a state judge could force an indictment to trial
even without the cooperation of the state prosecutor. Senator
Hendricks replied that the defendant’s remedy was by appeal
through the higher state courts to the Supreme Court of the United
States. Senator Stewart rejoined: “But suppose the judge goes on
and convicts the man and sends him to the penitentiary, he must
lie there until the case can be heard in the Supreme Court, three
or four years hence.” Senator Doolittle thought it sufficient pro
tection to the defendant that federal law forbid the state jail
authorities to detain the defendant in such a case, and make them
civilly liable if they do. Senator Stewart pointed out that the state
judge had strong coercive powers over state officers, and Senator
Clark closed the debate :
“Mr. Cla rk . I desire to make but one suggestion in answer
to the Senator from Wisconsin, and that is one of fact. He says
if it were necessary that these judges should be proceeded
against he would not object. I hold in my hand a communica
tion from a member of the other House from Kentucky, in
which he says that all the judicial districts of Kentucky, with
the exception of one, are in the hands of sympathizing judges.
33
lation and judiciary rulings of Kentucky. There no protec
tion is guaranteed to a Federal soldier.” * 24 “ [I]n another
county of that State the grand jury indicted every Union
judge, sheriff, and clerk of the election of August, 1865. In
addition to that every loyal man who had been in the Army
and had, under the order of his superior officer, taken a
horse, was indicted.” 25 Discrimination against the Union
men “is the rule in Kentucky, except in one solitary dis
trict, and the Legislature at its last session inauguarated
means of removing that judge, simply because he dared
to carry out this act of the Federal Congress [the 1863
removal statute].” 26 “There must be some way of remedy
ing this crying evil, and these men who have been engaged
in the defense of the country cannot be permitted to be per
secuted in this sort of way. Then life becomes hardly worth
having, if, after having driven the rebels out of their
country and subdued them, those rebels are to be permitted
to return and harass them from morning until night and
They entirely disregard the [removal] act to which this is an
amendment. They refuse to allow the transfer, and proceed
against these men as if nothing had taken place, Here is not
the assumption that these judges will not do this; here is the
fact that they do not do it, and it is necessary that these men
should be protected.” Id. at 2063 (4/20/66).
Senators Stewart and Clark prevailed in the vote on an amendment
seeking to strike the provision making the state judges liable. Ibid.
24 Id. at 1526 (McKee, of Kentucky, in the House, 3/20/66).
25 Id. at 1527 (Smith, of Kentucky, in the House, 3/20/66). See
also id. at 1526 (McKee, of Kentucky, in the House, 3/20/66).
26 Ibid. (McKee, of Kentucky, in the House, 3/20/66). See also
id. at 2063 (Clark in the Senate, 4/20/66).
34
from night till morning, and make their life a curse for
that very defense which they have given your country.” 27
It is impossible to read these debates of the thirty-ninth
Congress without concluding that the federal legislators
were intensely aware of the hostility and anti-Union preju
dice of the southern state courts28 and of the use of state
court proceedings to harass the Union men. Nor, under
these circumstances, was this Congress willing to adopt a
hands-off attitude toward state criminal administration.
During nearly three-quarters of a century following the
First Judiciary Act of September 24, 1789, eh. 20, 1 Stat.
73, Congress had relegated the enforcement of federal rights
generally to the state trial courts,29 subject to limited re
view by the Supreme Court of the United States, and had
shown itself particularly reluctant to interject the federal
courts into the course of state criminal proceedings.30 It
27 Id. at 2054 (Clark in the Senate, 4/20/66).
28 E.g., id. at 1526 (McKee, of Kentucky, in the House, 3/20/66),
1527 (Garfield and Smith, of Kentucky, in the House, 3/20/66),
1529 (Cook, who reported the bill and was its floor manager, see
note 18 supra, in the House, 3/20/66), 2054, 2063 (Clark in the
Senate 4/20/66). Clark pointed out that hostile state legislatures
could not be looked to for redress of the discriminations practiced
by hostile state judges. Id. at 2054 (4/20/66). The only relief
for the Union men was access to the federal courts: “There is
where they are most likely to have their rights protected. There
is where local prejudices are frowned down.” Id. at 1526 (McKee,
of Kentucky, in the House, 3/20/66) ; see also id. at 1528 (Smith,
of Kentucky, in the House, 3/20/66), 1529-1530 (Cook in the
House, 3/20/66) ; cf. id. at 1387 (Cook in the House, 3/14/66).
29 H art & W ec h sler , T h e F ederal Courts and t h e F ederal
S ystem 727 (1954). Except for the brief interlude following the
Act of February 13, 1801, eh. 4, § 11, 2 Stat. 89, 92, repealed by
the Act of March 8 , 1802, ch. 8 , 2 Stat. 132, the lower federal courts
had no general federal question jurisdiction until 1875. Judiciary
Act of March 3, 1875, ch. 137, 18 Stat. 470.
30 rp̂ g ]jqrgt Judiciary Act, for example, was explicit in excepting
state prisoners from the federal habeas corpus jurisdiction. See
35
had authorized only limited federal judicial incursions—
by removal provisions in 1815 and 1833s1 and anticipatory
habeas corpus grants in 1833 and 184231 32—in cases where
there were extraordinary reasons to distrust the state judi
cial institutions. But the experience of the Civil War and
the beginnings or Reconstruction brought new attitudes.
Extensive civil and criminal removal statutes were enacted,
covering in 1863 persons acting under Presidential order or
act of Congress during the rebellion, in 1S64 federal inter
nal revenue officers and persons acting under them, in 1866
civil rights cases, again in 1866 all persons acting during the
rebellion under military orders, and in 1871 voting enforce
ment cases.33 Union military commanders under the Con
gressional Reconstruction program withdrew from the state
courts in the South civil and criminal jurisdiction over all
note 13 supra. Congressional reluctance to involve the lower federal
courts in state criminal proceedings is understandable enough when
one considers the furor raised as late as 1821 by Supreme Court
assumption of jurisdiction to review federal questions in state
criminal cases. Cohens v. Virginia, 6 Wheat. 264 (1821); 1 W ar
ren, The Supreme Court in United States H istory 547-559
(Rev. ed. 1932).
31 Act of February 4, 1815, ch. 31, § 8, 3 Stat, 195, 198; Act of
March 3, 1815, ch. 43, § 6, 3 Stat. 231, 233. These statutes re
sponded to New England resistance to the War of 1812. See
1 MORISON & COMMAGER, GROWTH OF THE AMERICAN REPUBLIC
428, 429 (4th ed. 1950). The Force Act of March 2, 1833 has been
discussed at p. 23 supra.
32 See pp. 23-24 supra.
33 Act of March 3, 1863, ch. 81, § 5, 12 Stat. 755, 756, p. 26 supra;
Act of March 7, 1864, ch. 20, § 9, 13 Stat. 14, 17 and Act of June
30, 1864, ch. 173, § 50, 13 Stat. 223, 241, amended by the Act of
July 13, 1866, ch. 184, 14 Stat. 98 (these last three statutes cover
ing revenue officers) ; Act of April 9, 1866, ch. 31, § 3, 14 Stat. 27,
note 19 supra; Act of May 11, 1866, ch. 80, 14 Stat. 46, pp. 26-27
supra; Act of February 28, 1871, ch. 99, § 16, 16 Stat. 438.
36
cases involving union soldiers and freedmen, and gave the
jurisdiction to national military tribunals.34 Subsequently,
implementing the new guarantees in which the Thirteenth,
Fourteenth and Fifteenth Amendments committed the fed
eral government to protect its citizens against the States,
Congress was to create in 1871 a broad civil rights juris
diction35 whose purpose was to supersede state judicial
processes without respect to exhaustion of state remedies,
“because, by reason of prejudice, passion, neglect, intoler
ance or otherwise, state laws might not be enforced and the
claims of citizens to the enjoyment of rights, privileges,
and immunities guaranteed by the Fourteenth Amendment
might be denied by the state agencies.” 36 No longer was it
assumed that the state courts were the fit tribunals for
the protection of federal interests except in the relatively
rare cases where they showed themselves unfit. Now those
courts were seen as instruments for the deprivation of
federally guaranteed liberties, and Congress acted to sup
plant them with a pervasive federal trial jurisdiction.37
34 See Cong. Globe, 39th Cong., 1st Sess. 1834 (4/7/66); D u n n
in g , E ssays on t h e C ivil W ae and R econstruction 147, 156-163
(1898).
35 Act of April 20, 1871, ch. 22, § 1, 17 Stat. 13, the third Civil
Rights Act, called the Ku Klux Act. The jurisdiction survives in
present 28 U. S. C. § 1343 (1958) and Rev. Stat. § 1979, 42 U. S. C.
§ 1983 (1958).
36 Monroe v. Pape, 365 U. S. 167, 180 (1961). The purpose of
the 1871 statute to provide a federal forum for the vindication of
federal civil rights notwithstanding failure to exhaust state rem
edies was reaffirmed in McNeese v. Board of Education, 373 U. S.
668 (1963).
37 Each of the four major civil rights acts contained jurisdictional
provisions giving enforcement power to the federal trial courts.
Act of April 9, 1866, ch. 31, § 3, 14 Stat. 27; Act of May 31, 1870,
37
In similar, though more limited, circumstances in 1 8 3 3 -
South Carolina’s resistance to the Tariff of Abominations
—Congress had responded by the creation both of removal
and of anticipatory habeas corpus jurisdiction to enable
federal courts to protect the tariff officials. The removal
legislation of 1863 and 1866 was patterned on that of 1833.38
But removal proved in practice an insufficient protection
against hostile state courts;39 40 subjection of defendants to
the initial stages of state process offered large opportuni
ties for harassment and obstruction in the vindication of
federal rights. With this knowledge, Congress enacted the
habeas corpus statute of 1867, and the temper of the times
clearly supports the conclusion that “the proponents of the
remedy certainly contemplated the by-passing of the state
judicial processes.” Brennan, Federal Habeas Corpus for
State Prisoners: An Exercise in Federalism, 7 Utah L.
B e v . 423, 426 (1961).40 It is fair to say that the purpose
cli. 114, §§ 8, 18, 16 Stat. 140, 142, 144; Act of April 20, 1871,
ch. 22, § 1, 17 Stat. 13; Act of March 1, 1875, ch. 114, § 3, 18 Stat.
335, 336. Significantly, by the Judiciary Act of March 3, 1875, ch.
137, 18 Stat. 470, Congress gave general federal question juris
diction to the lower federal courts, thus establishing that henceforth
those courts, not the state courts, were to be the ordinary and
natural agencies for the administration of federal law. See F r a n k
f u r t e r & LANDIS, T h e BUSINESS OF THE SUPEEME COURT 64-65
(1928).
38 See Cong. Globe, 39th Cong., 1st Sess. 1387 (Cook in the House,
3/14/66).
39 By a variety of devices, the state courts had managed to defeat
removal under the 1863 act. See notes 18, 23 supra; also Cong.
Globe, 39th Cong., 1st Sess. 1526 (McKee, of Kentucky, in the
House, 3/20/66), 1527 (Smith, of Kentucky, in the House,
3/20/66), 2054 (Wilson in the Senate, 4/20/66).
40 See Justice Brennan’s statement for the Court in Fay v. Noia,
p. 25 supra.
38
of the Congress which created the federal habeas juris
diction now codified in 28 U. S. C. § 2241(c) (3) (1958)
flatly repels the conception that persons seeking to enforce
the civil rights which the nation won for them in the Civil
War and preserved by the post-War amendments should
be remitted for exhaustion of remedies to the state courts
which were the very agencies of harassing them in the
exercise of those rights.
(3) Judicial development of the exhaustion doctrine.
The broad scope of the habeas corpus jurisdiction con
ferred by the 1867 act was immediately recognized by the
Supreme Court. “This legislation is of the most com
prehensive character. It brings within the habeas corpus
jurisdiction of every court and of every judge every pos
sible case of privation of liberty contrary to the National
Constitution, treaties, or laws. It is impossible to widen
this jurisdiction.” Ex parte McCardle, 6 Wall. 318, 325-326
(1867). Ironically the act was invoked in McCardle’s case
not by a state prisoner complaining of state restraint in
violation of federally guaranteed freedoms or federally
protected interests, but by a Union army prisoner held for
trial before a military commission on charges of publishing
anti-Union propaganda in the newspaper of which he was
an editor; his habeas corpus petition challenged the validity
of the federal Reconstruction Acts, and Congress, fearful
that the Supreme Court would void the legislation, immedi
ately withdrew its appellate jurisdiction in cases (including
McCardle’s) arising under the 1867 habeas statute. Act
of March 27, 1868, eh. 34, § 2, 15 Stat. 44; see Ex parte Mc
Cardle, 7 Wall. 506 (1869). This left it to the lower federal
courts, during the years until the Supreme Court’s ap
39
pellate jurisdiction was restored by the Act of March 3,
1885, ch. 353, 23 Stat. 437, to construe the new habeas corpus
grant without Supreme Court guidance. Significantly, these
contemporary lower court decisions viewed the 1867 statute
as imperatively demanding federal discharge of state
prisoners held for trial or after state trial-court convic
tion, notwithstanding the existence of still unexhausted
state remedies. Ex parte McCready, 15 Fed. Cas. 1345,
No. 8,732 (C. C. E. D. Va. 1874); Ex parte Bridges, 4 Fed.
Cas. 98, No. 1,862 (C. C. N. D. Ga. 1875); Ex parte Tatem,
23 Fed. Cas. 708, No. 13,759 (E. D. Va. 1877). Particularly,
in a series of cases arising out of prosecutions under legis
lation by which the Pacific Coast States and municipalities
sought to discriminate against the immigrant Chinese,
federal district and circuit courts, striking down the legis
lation under the Fourteenth Amendment, released their
habeas corpus petitioners in advance of state trial or im
mediately following summary state conviction. In re Par
rott, 1 Fed. 481 (C. C. D. Cal. 1880); In re Quong Woo,
13 Fed. 229 (C. C. D. Cal. 1882); In re Lee Tong, 18 Fed.
253 (D. Ore. 1883); In re Wan Yin, 22 Fed. 701 (D. Ore.
1885); Ex parte Ah Lit, 26 Fed. 512 (D. Ore. 1886); In re
Tie Loy, 26 Fed. 611 (C. C. D. Cal. 1886). In some of
these cases, particularly those from the Oregon District
Court, the substantive holdings of unconstitutionality were
more or less extravagant (the Oregon District Judge voided
several municipal ordinances on the theory that, being ultra
vires state enabling legislation, they violated due process
of law); these decisions were received with consternation
by the legal profession, see R e p o r t o f t h e S e v e n t h A n n u a l
M e e t in g o f t h e A m e r ic a n B ar A s so c ia t io n 12-44 (1884),
which in turn led Congress to reestablish the Supreme
40
Court’s appellate jurisdiction in habeas cases in 1885.
Doubtless the same consternation respecting the scope
given the Due Process Clause by some lower courts ac
counts in part for the birth of the exhaustion doctrine in
Ex parte Royall, 117 U. S. 241 (1886), the following year.
Roy all was not a case in which a habeas peti
tioner invoked federal constitutional protection in the ser
vice of the federal interests or the federal freedoms with
which the Reconstruction Congress had been principally
concerned. It presented a Contracts Clause question, and
had every appearance of a carefully made test case by which
Royall, being in no particular circumstance of urgency,
was employing the habeas corpus route as the most con
venient device to obtain a Supreme Court ruling on the
validity of Virginia’s state bond coupon legislation." The
case was unarguably within the broad jurisdictional lan
guage of the 1867 habeas corpus grant, but as obviously
without its purposes. In this context—and in the calmer
post-Reconstruction era which resembled neither 1867 nor
1965 in the South—the Supreme Court understandably
concluded that the federal habeas courts (although em
powered to discharge state criminal defendants before state
trial, 117 U. S. at 245-250) had and should exercise a “dis
cretion,” 117 U. S. at 251, to abstain in favor of the orderly
process of state court trial and appeal, “that discretion,
however, to be subordinated to any special circumstances
requiring immediate action,” 117 U. S. at 253. Like Royall,
the cases which soon followed it in refusing federal habeas 41
41 Royall, an attorney, had been at large on bond for almost a
year after his arrest in 1884; shortly after passage of the statute
restoring the Supreme Court’s appellate habeas jurisdiction, he
surrendered into custody and filed his petition.
41
corpus to a prisoner in advance of his state trial involved
issues which (where not altogether frivolous), either did not
implicate the post-War Amendments42 or saw the Four
teenth Amendment invoked against state regulatory legis
lation by economic interests apparently able to bear with
out harm the burdens of protracted state-court litigation.43
With the expansion of conceptions of due process as a
limitation upon state criminal procedure and the conse
quent expansion of federal habeas corpus as a post-convic
tion remedy,44 the focus of litigation under the Royall doc
trine became the question of exhaustion of state collateral
remedies for federal constitutional violations in the trial
process; in these cases exhaustion was rigorously de
manded of Fourteenth Amendment claimants,45 perhaps be
cause the need for immediate federal intervention seemed
less compelling where the nature of the state judicial pro
ceedings (rather than the power of the State to proceed
at all in the premises) was challenged (cf. Peacock v. City
of Greenwood, supra, slip opinion, pp. 9-10), perhaps be
cause the outstanding early post-conviction cases were
death cases where the habeas petitioner had no particular
objection to delay so long as he remained unexecuted in the
interim, more probably because the Royall principle was
simply carried over unthinkingly from Contract Clause
42 See the eases cited at p. 19 supra; also, Cunningham v. Skiri-
otes, 101 F. 2d 635 (5th Cir. 1939) ; United States ex rel. Silverman
v. Fiscus, 42 Fed. 395 (W. D. Pa. 1890) ; In re Alexander, 84 Fed.
633 (W. D. N. C. 1898) ; cf. Minnesota v. Brundage, 180 U. S. 499
(1901).
43 See Baker v. Grice, 169 U. S. 284 (1898); Ex parte Bartlett,
197 Fed. 98 (E. D. Wise. 1912).
44 See discussion in sources collected in note 14 supra.
46 E.g., Mooney v. Iiolohan, 294 U. S. 103 (1935): Ex parte
Hawk, 321 U. S. 114 (1944).
42
and Commerce Clause cases to Fourteenth. Amendment
cases having no smack of urgency about them, and thence
to all Fourteenth Amendment cases, subject to the “excep
tional circumstances” qualification. It is enlightening that
this was not the contemporary view of Royall. For in the
West Coast Chinese cases raising significant Due Process
and Equal Protection challenges to state legislation on its
face or as applied, see p. 39 supra, the lower federal
courts continued to protect the Chinese by anticipatory
habeas corpus even after Royall, see In re Sam Kee, 31
Fed. 680 (C. C. N. D. Cal. 1887); In re Lee Sing, 43 Fed.
359 (C. C. N. D. Cal. 1890), and the Supreme Court itself
approved this use of habeas corpus, without consideration
of exhaustion of state remedies, in Wo Lee v. Hopkins, re
ported with Yick Wo v. Hopkins, 118 IT. S. 356 (1886).
This Court’s recent decisions in Application of Wyckoff
and Brown v. Bayfield, requiring exhaustion in similar
situations, are inconsistent with these cases.
(4) Application of the exhaustion doctrine to civil rights
cases.
Petitioner seeks to have Wyckoff and Brown v. Ray field
reconsidered in light of the pertinent materials set out
at pp. 20-38 of this brief, and overruled. Her position,
simply, is that a habeas petition states a case for an
ticipatory federal habeas corpus relief if it shows that
the petitioner is held for state prosecution on account of an
act which was in the exercise of civil rights46 protected by
46 The phrase “civil rights” is used advisedly, despite the possi
bility of unclarity at its fringes, to designate what Mr. Justice
Stone in dealing with a cognate statute described as a “right or
immunity . . . of personal liberty, not dependent for its existence
43
the Fourteenth Amendment or Fifteenth Amendment. The
protection of civil rights, the protection of the liberty of the
freedman and the loyal Union man in the South against
persecution and oppression, were paramount objects of
the Congress which enacted the 1867 habeas corpus statute.
Aware that state courts were being used as agencies of har
assment, Congress enlarged the federal habeas corpus juris
diction—theretofore always employed by it as a pretrial
remedy to abort state proceedings which infringed par
ticular federal concerns—to reach all cases of restraint
of liberty in violation of federal law; it enacted that, after
proceeding “in a summary way to determine the facts of the
case, . . . if it shall appear that the petitioner is deprived
of his or her liberty in contravention of the constitution
or laws of the United States, he or she shall forthwith be
discharged and set at liberty,” and all subsequent state court
proceedings shall be void. 14 Stat. 386. Doubtless Royall
exercised a permissible judicial license in holding that a
federal habeas court need not always “forthwith” award
the writ in advance of a state trial despite the peremptory
tone of the statute. But “the court could not, against the
positive language of Congress, declare any such exception,”
Ex parte Royall, 117 U. S. at 249, and the exception which
Royall allowed to the exercise of a congressionally-given
jurisdiction47 was allowed only because it was supposed to
upon the infringement of property rights.” Hague v. C. I. 0., 307
U. S. 496, 518, 531 (1939) (plurality opinion). Congress has
used the words “civil rights” with, apparently, the same meaning,
28U. S. C. § 1343(4) (1958).
47 Cf. Chief Justice Marshall, in Cohens v. Virginia, 6 Wheat.
264, 404 (1821) : “We have no more right to decline the exercise
of jurisdiction which is given, than to usurp that which is not
given. The one or the other would be treason to the constitution.”
44
be not inconsistent with congressional purpose, 117 U. S. at
251, 252. In situations which, like Royall, fall within the
1867 statute’s terms but not within the immediate range
of congressional concern or foresight, implication of judi
cial “discretion” to delay relief may properly be thought not
inconsistent with the statute. However, reading the stat
ute fairly against its background, it is obvious that Con
gress intended principally the creation of a summary, super
vening federal trial jurisdiction brooking no accommoda
tion of state court processes; and, at least in that class
of cases where the operation of such a jurisdiction was
clearly foreseeable in light of the circumstances which give
rise to the enactment, that sort of jurisdiction should be
exercised as given. This is the case where a habeas peti
tioner seeks relief from state restraint imposed on him
on account of his exercise of the civil rights guaranteed by
the post-War Amendments and their enforcing legislation.
The mainspring of Royall is the principle that the “dis
cretion [of a federal habeas court to abstain until state
remedies are exhausted] should be exercised in the light of
the relations existing, under our system of government,
between the judicial tribunals of the Union and of the
States, and in recognition of the fact that the public good
requires that those relations be not disturbed by unneces
sary conflict between courts equally bound to guard and
protect rights secured by the Constitution.” 117 U. S. at
251. In appraising the appropriate “relations existing . . .
between the judicial tribunals of the Union and of the
States,” it is pertinent to inquire what specific “rights” are
in issue, what the Constitution and the Congress (by other
legislation than the habeas corpus statute itself) have said
about their importance and the usual forum for their en
45
forcement, and, finally, what the federal and state courts
respectively can do and are in fact doing under their obliga
tion “to guard and protect” those rights. Federal absten
tion in favor of state court processes under this principle
presupposes that, in respect of the subject matter of the
litigation, the state courts have a generally primary com
petence or responsibility—that they are the ordinary and
normal place for such litigation. However valid this may be
regarding other federal questions (and particularly those
of procedural due process, where the federal claim arises
out of the state court proceedings themselves), it is clearly
not so in matters of civil rights. For not only did the
Beconstruction Congress create an extensive original fed
eral jurisdiction in civil rights cases, see note 35 supra, it
created in § 3 of the first Civil Bights Act, in 1866, federal
removal jurisdiction over state criminal cases implicating
civil rights, and even original criminal jurisdiction over
state-law offenses affecting persons denied their federal
civil rights.48 An impressive array of recent decisions—
Fay v. Noia, 372 IT. S. 391 (1963); Townsend v. Sain, 372
U. S. 293 (1963); Monroe v. Pape, 365 U. S. 167 (1961);
McNeese v. Board of Education, 373 IT. S. 668 (1963); Bag
gett v. Bullitt, 377 U. 8. 360 (1964); Dombrowski v. Pfister,
380 IT. S. 479 (1965); Rachel v. Georgia, 342 F. 2d 336 (5th
Cir. 1965); Peacock v. City of Greenwood, 5th Cir., No.
21655, decided June 22, 1965; Cox v. Louisiana, 5th Cir.,
No. 22657, stay granted June 29, 1965, all decided under the
48 Act of April 9, 1866, ch. 31, § 3, 14 Stat. 27, predecessor of
present 28 U. S. C. § 1443 (1958). Only in the cases of original
federal criminal jurisdiction over state-law crimes and in removal
cases not arising from the exercise of federal civil rights, did the
1866 act admit a place for state court responsibility in the first
instance.
46
Reconstruction legislation—recognize the primary respon
sibility of the federal courts “within this precious area”
where “Congress has declared the historic judgment that
. . . there is to be no slightest risk of nullification by state
process . . . not because the interest of the state is smaller
in such cases, but because its interest is outweighed by
other factors of the highest national concern.” Wechsler,
Federal Jurisdiction and the Revision of the Judicial Code,
13 L aw & Contemp. P rob. 216, 230 (1948). In this area,
consistently with Royall, deference to state process is un
warranted.
To assume jurisdiction in the present case, however, the
court need not reach the question of the application of the
exhaustion doctrine to all civil rights cases. This case is a
particularly strong one for anticipatory federal relief.
Under the allegations of paragraphs VI and VIII of the
petition, and on the basis of Mississippi legislation which
the court may judicially notice, see p. 14 supra, it is ap
parent that the State of Mississippi has mounted and is
maintaining a comprehensive practice of resistance to fed
eral civil rights. Mississippi’s massive resistance is per
tinent here for several reasons. First, the decision in Roy-
all’s case to delay the summary exercise of a jurisdiction
given the federal courts by Congress in order effectively
to protect federal rights was premised on the assumption
that state and federal courts were “equally bound to guard
and protect rights secured by the Constitution,” 117 U. S.
at 251, and that the state courts in general would probably
do their job. Where the hostility of all state authorities to
a particular class of federal rights is intense, the prob
ability that the state courts will defend those rights di-
47
rninishes so substantially as no longer to justify the as
sumption made in Royall or the judgment of accommoda
tion based upon it. Second, the fact of massive state
resistance to federal constitutional guarantees is itself a
substantial threat to the principle of national supremacy in
matters of national concern upon which American federal
ism is based, and thus per se implicates “the authority and
operations of the General Government” within a recog
nized exception to the exhaustion doctrine described in
Appendix III infra. Cf. Cooper v. Aaron, 358 U. S. 1
(1958); Griffin v. County School Board of Prince Edward
County, 377 U. S. 218 (1964). Third, the situation of mas
sive resistance to federally protected interests was exactly
that which faced the Congress in 1867 and to which it re
sponded with the grant of habeas corpus jurisdiction which
petitioner invokes. The statutory history of this grant
compels the conclusion that, at least in this situation, Con
gress intended the federal habeas corpus courts to super
sede, not defer to, state courts which were then, as now,
used as the instruments for the harassment of individuals
asserting federal rights. The Royall doctrine, emerging
after Reconstruction as a principle for the operation of the
federal courts in calmer days, found that abnegation of
the summary jurisdiction given by the habeas corpus legis
lation was not inconsistent with the legislation’s purposes.
Application of the doctrine in modern instances of massive
resistance would be flatly inconsistent with those purposes.
Moreover, petitioner here invokes the habeas corpus
jurisdiction in vindication of rights secured by the First
and Fourteenth Amendments: freedom of speech, associa
tion and assembly in the service of political expression. The
Supreme Court has consistently said that these rights
48
occupy a constitutionally preferred position,49 and it has
recognized that “The threat of sanctions may deter their
exercise almost as potently as the actual application of
sanctions.” N.A.A.C.P. v. Button, 371 U. S. 415, 433 (1963).
See also Smith v. California, 361 U. S. 147, 151 (1959);
Bantam Boohs, Inc. v. Sullivan, 372 U. S. 58, 66-70 (1963);
Cramp v. Board of Public Instruction, 368 U. S. 278, 286-
288 (1961); Garrison v. Louisiana, 379 U. S. 64, 70
(1964) . “ [Pjrosecution is punishment,” Dilworth v. Riner,
343 F. 2d 226, 231 (5th Cir. 1965), no less in First Amend
ment than in other civil rights cases; and where the First
Amendment is involved, the need for immediate federal
judicial process to resist even slight state rejoression is
the more imperious. Dombrowshi v. Pfister, 380 U. S. 479
(1965) ; Cox v. Louisiana, 5th Cir., No. 22657, stay granted
June 29, 1965. By means of the present prosecution, the
State of Mississippi is harassing petitioner, punishing her
for the past exercise of First-Fourteenth Amendment free
doms, deterring her future exercise of these freedoms, and,
through petitioner, stifling and repressing COFO and Negro
voter registration. So long as this prosecution is pending,
state power to forbid petitioner’s activities is confi
dently asserted; until the prosecution is disposed of and
that power denied, few will be hardy enough to exercise
their rights and follow petitioner into the toils of Missis
sippi justice. Tears of delay in the vindication of freedoms
essential to the daily functioning of democracy are the
49 Marsh v. Alabama, 326 U. S. 501, 509 (1946), and opinions
cited; Prince v. Massachusetts, 321 TJ. S. 158, 164 (1944) ; Saia v.
New York, 334 U. S. 558, 562 (1948); cf. New York Times v.
Sullivan, 376 U. S. 254, 269-270 (1964).
49
price of federal abstention under the exhaustion doctrine.50
“Meanwhile, where the vagueness of the statute”-—and its
consequent susceptibility to use as an instrument of racial
harassment—“deters constitutionally protected conduct,
‘the free dissemination of ideas may be the loser,’ ” Baggett
v. Bullitt, 377 U. S. 360, 379 (1964), and the long, bitterly
resisted struggle of the Mississippi Negroes against un
constitutional disfranchisement will be further prolonged
in frustration.
Petitioner claims that the statute under which she is
prosecuted is void and unconstitutional on its face. If this
is so, the policy against disturbance of state criminal pro
ceedings is not strong, for Mississippi’s interest in the un
impeded administration of a statute which it cannot con
stitutionally apply in any case is surely minimal. On the
other hand, the high priority which the Court has assigned
to First Amendment liberties and its traditional concern
lest the threat of punishment suppress unpopular speech
give impressive cause for recognition that the very pen
dency of state prosecutions aimed at First Amendment
conduct and calculated to harass those whose speech and
association are unpopular and to deter others from speech
and work in the service of unpopular causes, is itself an
50 In February and March, 1964, the Supreme Court of Missis
sippi reached, and affirmed, convictions in harassment prosecutions
arising out of the May, 1961 Freedom Rides. See Thomas v. State,
160 So. 2d 657 (Miss. 1964) ; Farmer v. State, 161 So. 2d 159
(Miss. 1964), and companion cases; Knight v. State, 161 So. 2d 521
(Miss. 1964). And more than another year was to pass before the
Supreme Court of the United States reached, and reversed, these
convictions. Thomas v. Mississippi, 380 U. S. 524 (1965). Compare
Edwards v. South Carolina, 372 U. S. 229 (1963) (two years from
arrest to Supreme Court reversal of conviction) ; Fields v. South
Carolina, 375 U. S. 44 (1963) (three and a half years from arrest
to Supreme Court reversal of conviction); Henry v. Rock Hill, 376
U. S. 776 (1964) (more than four years from arrest to Supreme
Court reversal of conviction).
50
intolerable clog on First Amendment freedom. Summary
federal disposition of such prosecutions is the more im
peratively demanded because the power to suppress speech
even briefly by harassment is the power to render it ineffec
tive as an instrument of democratic political action.
Petitioner also claims that the statute is unconstitutional
as applied to her situation. Such a claim depends on facts,
and the power of the trier of the facts to find the facts
adversely to petitioner is the power to destroy her constitu
tional freedoms. See, e.g., Feiner v. New York, 340 TJ. S.
315, 319, 321 (1951). The whole purpose of the creation of
a federal trial jurisdiction in habeas corpus in 1867 was to
relieve persons claiming federal constitutional or statutory
protection from resort to unsympathetic state courts, to
give them a federal forum “where local prejudices are
frowned down,” see note 28 supra, where their federal
rights were not crushed by the risk of biased fact-finding.
For that risk not only works to impede the ultimate vindi
cation of the federal rights of a state criminal defendant
who goes to trial in the state courts; the knowledge that
effective enforcement of these rights is committed to the
largely unreviewable power of state magistrates and judges
tends broadly to deter their exercise in the service of un
popular causes. For these reasons, “ [t]he possibility of
appellate review by [the Supreme Court of the United
States] . . . of a state court determination may not be
substituted, against a party’s wishes, for his right to liti
gate his federal claims fully in the federal courts.” Eng
land v. Louisiana State Board of Medical Examiners, 375
U. S. 411, 417 (1964). After her conviction in the state
courts, it is clear petitioner will be entitled to trial de novo
51
of the facts on federal habeas corpus. See Townsend v.
Sain, 372 U. S. 293 (1963). Pretrial federal habeas corpus
relief is no greater disruption of “the relations existing,
under our system of government, between the judicial tri
bunals of the Union and of the States,” Ex parte Roy all,
117 U. S. at 251, than post-conviction federal habeas corpus
relief. The only difference is that the first remedy is timely
and effective, while the second is not.
CONCLUSION
For the forego in g reasons, the Court should rehear
the case en banc and, upon rehearing, overru le B row n
v. R ay fie ld and reverse the order o f the D istrict Court.
Respectfully submitted,
H enry M. A ronson
5381/2 North Farish Street
Jackson, Mississippi 39202
J ack Greenberg
J ames M. N abrit, III
M elvyn Zarr
10 Columbus Circle
New York, New York 10019
A n th o n y G. A msterdam
3400 Chestnut Street
Philadelphia, Pa. 19104
Attorneys for Appellant
Of counsel:
R. J ess B rown
Carsie A . H all
J ack H . Y oung
CERTIFICATE OF SERVICE
I hereby certify that on September , 1965, I served
a copy of the foregoing Petition for Rehearing en Banc
and Supporting Brief on Joe Sams, Jr., attorney for
appellees, by mailing a copy thereof to him at 514 Second
Avenue, Columbus, Mississippi, by United States mail,
postage prepaid.
Attorney for Appellant
A P P E N D I C E S
APPENDIX I
R ecord in the D istrict Court
P etitio n foe W rit of H abeas Corpus W it h M otion fob
S tay of S tate Court P roceedings
[Caption omitted]
Filed January 5, 1965
To: Honorable Claude F. Clayton, District Judge, United
States District Court for the Northern District of
Mississippi:
Petitioner’s verified petition and motion respectfully aver
that;
I.
The jurisdiction of this court is invoked under 28 U. S. C.
§2241 (1958) to release petitioner Jan Hillegas from the
custody of respondents Joe Sams, Jr., County Attorney of
Lowndes County, Mississippi; Penn Taylor, Sheriff of
Lowndes County, Mississippi and Custodian of the County
Jail of Lowndes County, Mississippi, who now hold peti
tioner confined in that jail, in the city of Columbus, Missis
sippi, within the Northern District of Mississippi, in viola
tion of the Fourteenth and Fifteenth Amendments to the
Constitution of the United States. Pursuant to 28 U. S. C.
§ 2251 (1958), the court is authorized to stay state proceed
ings against petitioner for matters involved in this habeas
corpus proceeding.
2a
II.
On December 28, 1964, petitioner was arrested by re
spondent Taylor or his deputies and agents. Respondents
now hold petitioner under authority of an affidavit and war
rant charging petitioner with the offense of vagrancy, Miss.
Code Aim. §2666 (Recomp. Vol. 1956). A copy of the
affidavit and warrant has been refused petitioner’s em
ployer by respondent Taylor. Petitioner is held for appear
ance and trial before the justice of the peace of Lowndes
County, Mississippi, January 6,1965, on the charges set out
in the affidavit and warrant. Respondent Taylor has set
bail in the amount of $200. Petitioner has not made bond.
III.
(A) Petitioner is a 21-year-old girl, white, a college
graduate, domiciled in Syracuse, New York. The Council of
Federated Organizations (hereafter COFO) is an associa
tion of civil rights and local citizenship groups working in
Mississippi to achieve by peaceful and lawful means the
equal civil rights of Negroes and all persons and to educate,
assist and encourage Negroes to register and vote in local,
state and national elections free of racial discrimination and
racial disenfranchisement forbidden by the Fourteenth and
Fifteenth Amendments. COFO has employed, does employ
and will employ petitioner continuously as a voter registra
tion worker in the State of Mississippi. (Allegations in this
part III that anything “has” been done mean that it has
been done at all times after the date of petitioner’s entry
into Mississippi, including but not limited to the period
prior to her arrest, December 28, 1964). Petitioner’s duties
P e tit io n fo r W r i t o f H a b ea s C o rp u s W ith M o tio n
fo r S ta y o f S ta te C ourt P ro ceed in g s
3a
for COFO consist of interviewing Negro citizens of Missis
sippi for the purpose of encouraging, assisting and educat
ing them to register to vote, of accompanying Negroes to
the place of voting registration for the purpose of support
ing their efforts to register free of racial discrimination, of
observing conduct by state officials or other persons calcu
lated to racially disenfranchise Negroes in violation of the
Fourteenth and Fifteenth Amendments, and of participat
ing in the administration of COFO’s program having the ob
jectives described above.
(B) In connection with her employment by COFO, peti
tioner is presently resident in the State of Mississippi for
a period of more than six months.
(C) In consideration of and partial payment for her
work, COFO has arranged that petitioner live without ex
pense to herself in the home of Reverend Wheadon, a well-
known, respected retired Negro minister in Columbus, Mis
sissippi. Prior to and at the time of her arrest, December
28,1964, petitioner was living in Reverend Wheadon’s home,
802 N. 14th Street, Columbus, Mississippi. Her accommoda
tions in Reverend Wheadon’s home have remained avail
able to her following her arrest, and she would presently
be living there but for her confinement by respondent.
(D) Also in consideration of and partial payment for
her services, COFO has supplied, does supply, and will
supply petitioner all her meals without expense to herself
during her residence in Mississippi, and further has as
sumed, does assume and will assume responsibility for sup
plying petitioner during her stay in Mississippi her support,
P e tit io n fo r W r i t o f H ab ea s C orpus W ith M o tio n
fo r S ta y o f S ta te C ourt P ro ceed in g s
4a
maintenance, and reasonable livelihood, including all things
necessary to sustain her as a reputable member of the com
munity.
(E) Independently of COFO, petitioner’s mother, Mrs.
Estella Hillegas, of Syracuse, New York, has supplied, does
supply, and will supply petitioner with money sufficient to
sustain her as a reputable member of the community, and
has assumed, does assume, and will assume responsibility to
supply petitioner sufficient income for her support and main
tenance during her residence in Mississippi.
IV.
(A) December 28, 1964, in the course of her employment
for COFO, petitioner was present in the county courthouse
for Lowndes County in Columbus, Mississippi, together
with two other COFO workers, whose duties were similar
to petitioner’s, Dennis Gaston and Dove Green. Petitioner,
Gaston and Green were engaged in directing Negroes who
desired to register to vote in local, state and national elec
tions into the office of the county registrar for Lowndes
County; in assuring such Negroes, to the best of their
ability, against intimidation and harassment designed to
dissuade Negro voter registration by reason of race in
violation of the Fourteenth and Fifteenth Amendments and
42 U. S. C. A. § 1971 (1963 Supp.), 42 U. S. C. §§ 1983, 1985
(1958); and in interviewing Negroes who had presented
themselves to the county registrar for voting registration,
for the purpose of ascertaining whether the registrar was
complying with his obligation under the cited provisions of
federal law to register such Negroes without discrimination
by reason of race.
P e tit io n fo r W r i t o f H a b ea s C o rp u s W ith M o tio n
fo r S ta y o f S ta te C o u rt P ro ceed in g s
5a
(B) While engaged in the foregoing activities, and con
ducting themselves at all times in a lawful, quiet and orderly
manner, petitioner, Gaston and Green were seated on a
bench or seat outside the office of the Circuit Clerk in the
county courthouse. Circuit Clerk Wiggins came out of the
office and asked what they were doing there. They replied
that they were there to aid and give moral support to the
Negroes who were attempting to register to vote. Circuit
Clerk Wiggins told them to make themselves comfortable.
(C) Shortly thereafter, petitioner, Gaston and Green
were approached at the same place by a Deputy Sheriff of
Lowndes County, an agent of respondent Taylor, whose
name is believed to be Herrin and who will hereafter be so
referred to. Herrin asked petitioner and her companions
the same questions which they had been asked by Circuit
Clerk Wiggins and they gave him the same answer. Herrin
then told them that they would have to leave. They replied
that they had a right to remain in the courthouse. Herrin
said that if they did not leave he would arrest them. Then,
without giving them an opportunity to move or reply, he
told them to come with him. They asked if they were under
arrest. He said they were. They asked for what offense.
Herrin said for creating a public disturbance; that the
people in the offices were complaining that they could not
work with the three COFO workers there.
( D ) Petitioner, Gaston and Green accompanied Herrin to
the Sheriff’s office in the courthouse. There they were told
that they were charged with vagrancy or suspicion of va
grancy. Each of the three workers offered to show Herrin
a form, hereafter referred to as a vagrancy form, prepared
P e tit io n fo r W r i t o f H a b ea s C orpus W ith M o tio n
fo r S ta y o f S ta te C ourt P ro ceed in g s
6a
by COFO for the purpose of identifying COFO employees.
Petitioner’s vagrancy form contained her name and ad
dress, and stated the fact of her employment by COFO. Pe
titioner also offered to show Herrin an amount of paper
money, but Herrin refused to look at the vagrancy forms of
any of the three workers or at petitioner’s money. Peti
tioner, Gaston and Green were thereupon charged with
vagrancy and incarcerated in the Lowndes County Jail on
that charge.
P e tit io n fo r W r i t o f H a b ea s C orpus W ith M o tio n
fo r S ta y o f S ta te C ourt P ro ceed in g s
V.
On or about December 29, 1964, Cephas Hughes, an au
thorized representative of COFO, accompanied by Reverend
Tom Lasswell and Rev. Albert Cohen, went to respondent
Sams in Sams’ office to attempt to obtain the dropping of
the vagrancy charges against the three arrested COFO
workers. After Sams had been informed that Gaston was a
full time student in California and was planning to leave
Mississippi for California on the following day, Sams
agreed to drop charges against Gaston, phoned the jail and
ordered Gaston’s release. With respect to petitioner,
Hughes informed Sams that petitioner was a New York
domiciliary, a college graduate, and a COFO employee;
that she lived in the neighborhood with Reverend Wheadon,
and that her meals and necessaries were supplied by COFO.
Hughes also showed Sams a wire, a facsimile of which is
attached as Exhibit I to this petition, dated December 28,
1964, from Mrs. Estella Hillegas of Syracuse, New York,
stating that as petitioner’s mother Mrs. Estella Hillegas
7a
had assumed and would continue to assume responsibility to
supply her daughter all her decent needs as a member of
the community while in Mississippi. After being so in
formed, Sams refused to drop charges against petitioner.
Hughes similarly gave Sams information that Green was a
COFO employee whose lodging, board and necessaries were
supplied by COFO but Sams similarly refused to drop
charges against Green. Hughes thereupon went to respond
ent Taylor at the jail and asked for a copy of the affidavits
and warrants against petitioner and Green, which request
respondent Taylor refused.
VI.
(A) Now and during many years past, the registrar
of Lowndes County is discriminatorily denying and has
diseriminatorily denied Negroes the right to register to
vote by reason of their race. He has done so under color
of Miss. Const., art. 12, §§ 241-A and 244, provisions which
on their face and in their discriminatory application by him
violate the Fourteenth and Fifteenth Amendments and the
commands of 42 U. S. C. A. § 1971 (1963 Supp,), 42 U. S. C.
§§1983, 1985 (1958). The United States of America has
brought suit against the registrar of Lowndes County and
others to enjoin these discriminatory and unconstitutional
practices, which suit is presently pending in the Supreme
Court of the United States. United States v. Mississippi,
229 F. Supp. 925 (S. D. Miss. 1964), probable jurisdiction
noted, 377 U. S. 988 (1964). In 1961, the voting age popula
tion of Lowndes County was: White, 16460; Negro, 8362.
There were 5869 registered white voters and 63 registered
P e tit io n fo r W r i t o f H ab ea s C o rp u s W ith M o tio n
fo r S ta y o f S ta te C ourt P ro ceed in g s
8a
Negro voters. These figures have not significantly changed
since that date.
(B) It is the purpose of COFO and of petitioner as an
employee of COFO to assist, encourage and educate Negro
citizens and residents of Lowndes County to register to
vote and vote in local, state and national elections.
VII.
Petitioner is presently in custody in violation of the
Fourteenth and Fifteenth Amendments because:
(A) the charge on which she is held is unconstitutional
as applied to petitioner, for (1) is Miss. Code A n n . § 2666
(Recomp. Vol. 1956) applies to persons engaged in the ac
tivities in which petitioner is engaged, and supported and
maintained as petitioner is supported and maintained, it
deprives her of freedom of speech, of association and as
sembly (U. S. Const., Amends. I, XIV), of her federal
privilege to disseminate information pertinent to registra
tion and voting in national elections, and to encourage and
support Negro citizens of Mississippi to register and vote
in national elections (U. S. C onst., Amend. XV), while (2)
if Miss. Code A n n . § 2666 is construed and applied so as to
save its constitutionality, there is no evidence to support the
charge against petitioner consistently with due process of
law (U. S. Const., Amend. XIV).
(B) petitioner’s detention and prosecution has the design
and effect of harassing and punishing petitioner for at
tempting to assist Negroes to register to vote, of deterring
and intimidating petitioner from continuing to exercise her
P e tit io n fo r W r i t o f H a b ea s C o rp u s W ith M o tio n
fo r S ta y o f S ta te C o u rt P ro ceed in g s
9a
rights described para. IV(A) supra, and of deterring Negro
citizens of Lowndes County from attempting to register to
vote, thereby depriving such Negroes of the franchise by
reason of race, in violation of the Fifteenth Amendment and
42 U. S. C. A. § 1971 (1963 Supp.), 42 U. S. C. §§ 1983, 1985
(1958).
(C) petitioner was arrested and is now detained without
probable cause to believe that she was committing or had
committed any offense, in violation of the Fourth and Four
teenth Amendments.
(D) on information and belief, the Lowndes County Jail,
pursuant to Miss. Const., § art. 11, § 225 and Miss. Code
A n n . §§4259, 7965 (Repl. Vol. 1956), maintains segregated
facilities for the white and Negro races, in violation of the
Fourteenth Amendment.
VIII.
Petitioner has made no attempt to exhaust her state rem
edies. She need not do so because the prosecution against
her implicates the authority and operations of the federal
government by harassing petitioner in her voter registra
tion activities described above and by deterring her from
continuing those activities and Negro citizens from attempt
ing to register to vote. This deterrence and harassment is
pursuant to a state-wide policy of the officials and public
agencies of the State of Mississippi to maintain racial dis
crimination in all phases of life in violation of the Four
teenth Amendment and in voting in violation of the
Fifteenth and Seventeenth and Art I, § 2 of the federal Con
stitution. Such a policy is evident on the face of the statutes
P e tit io n fo r W r i t o f H a b ea s C orpus W ith M o tio n
fo r S ta y o f S ta te C ourt P ro ceed in g s
10a
of the State of Mississippi which this court may judicially
notice, particularly Miss, Code A n n . ^§4065.3, 2056(7)
(Eepl. vols. 1956), and itself implicates the authority and
operations of the federal government. Further, state rem
edies are ineffective to protect petitioner’s rights be
cause the pendency of her prosecution in the state courts
dies in diom intimidates and represses her in the exercise
of her First, Fourteenth and Fifteenth Amendment free
doms and intimidates and represses Negro citizens of
Lowndes County in the exercise of their voting rights under
Art. I, § 2 and the Fifteenth and Seventeenth Amendments.
Judicial remedies in the Mississippi courts are also ineffec
tive because the judges of those courts, and particularly the
justice of the peace and circuit judge of Lowndes County
are elected officials politically responsible to an electorate
from which Negroes have been systematically excluded and
which is hostile to Negro voter registration and to civil
rights activity generally.
P e tit io n fo r W r i t o f H a b ea s C o rp u s W ith M o tio n
fo r S ta y o f S ta te C ourt P ro ceed in g s
IX.
No previous application to this court or to any federal
court or judge has been made for a writ of habeas corpus on
the grounds alleged herein.
W herefore, p e ti t io n e r p ra y s th e c o u r t as fo llo w s:
(1) that the court forthwith issue the writ or a rule to
show cause, in compliance with 28 U. S. C. § 2243, para. 1
(1958), returnable within as short a time as may appear
practicable, and in no event later than three days hence, in
compliance with 28 U. S. C. § 2243, para. 2 (1958);
11a
(2) that a hearing forthwith be set for as early a date
as pacticable, and in no event later than five days after the
return day in compliance with 28 U. S. C. § 2243, para. 4
(1958);
(3) that after hearing this court release petitioner from
her unconstitutional confinement by respondents and dis
charge her from all further prosecution in any Mississippi
court for the matters involved in this petition; and
(4) that pending final disposition of this proceeding,
(A) this court release petitioner on her own recognizance
or on such reasonable bail as the court may set; and
(B) pursuant to 28 U. S. C. § 2251 (1958) this court stay
all proceedings in any Mississippi court against petitioner
for the matters involved in this petition.
/ s / H enky A ronson
Henry Aronson
507% N. Farish Street
Jackson, Mississippi
/ s / A n th o n y G. A msterdam
Anthony G. Amsterdam
3400 Chestnut Street
Philadelphia, Pa. 19104
Counsel for Petitioner
Of Counsel:
Jack H. Young
Carsie A. Hall
R. Jess Brown
(Duly verified.)
P e tit io n fo r W r i t o f H a b ea s C o rp u s W ith M o tio n
fo r S ta y o f S ta te C ourt P ro ceed in g s
12a
E x h ib it I A nnexed to P etitio n
WESTERN UNION
TELEGRAM
NSA007 SYA005 1964 DEC 29 AM 8 08
SY LLB049 NL PD=SYRACUSE NY 28=
WILLIE ERVIN, PROJECT DIRECTOR=
1212 17 ST NORTH (DLR DONT PONE)
COLUMBUS MISS=
TO WHOM IT MAY CONCERN I THE MOTHER OF
JAN HILLEGAS HAVE ASSUMED AND WILL CON
TINUE TO ASSUME FULL RESPONSIBILITY FOR
PROVIDING MY DAUGHTER JAN HILLEGAS ALL
HER DECENT NEEDS TO MAINTAIN HER AS A
RESPECTABLE MEMBER OF THE COMMUNITY OF
COLUMBUS MISSISSIPPI OR ANY OTHER PLACE
SHE MAY DESIRE TO RESIDE=
MRS. ESTELLA II. HILLEGAS.
N otice of M otion
P lease T ake N otice that the undersigned attorney for
petitioner will bring the attached motions for bail and for
stay of state court proceedings before the United States
District Court for the Northern District of Mississippi,
Eastern Division, at the time of filing the attached petition
for writ of habeas corpus, on the 5th day of January, 1965
at 1 :30 (p.m.), or as soon thereafter as counsel can be heard.
/ s / H enry A ronson
Counsel for Petitioner
13a
M otion fob B ail and for S tay
of S tate Court P roceedings
Upon the verified petition for habeas corpus and the at
tachments thereto, petitioner respectfully moves the court:
(1) to order petitioner’s release forthwith on her own re
cognizance or reasonable bail during the pendency of this
proceeding and until its final disposition;
(2) to stay proceedings against petitioner in any state
court of Mississippi for any matter involved in this petition
during the pendency of this proceeding and until its final
disposition.
Respectfully submitted,
/ s / H enry A ronson
Counsel for Petitioner
F orm Order
[Omitted]
14a
Order
[Caption omitted]
Upon consideration of the verified petition for writ of
habeas corpus, it is,
Ordered :
That the petition be and it hereby is denied for failure to
exhaust available state remedies. 28 U. S. C. § 2254; In re
Wyckoff, 196 F. Supp. 515 (S. D. Miss. 1961), 6 Race Rela
tions L. Rptr. 786, petition for immediate hearing and for
leave to proceed on original papers denied, id. at 793 (5th
Cir. 1961), petition for habeas corpus denied, id. at 794
(Circuit Justice Black, with whom Mr. Justice Clark con
curs, 1961); Brown v. Bayfield, 320 F. 2d 96 (5th Cir. 1963),
cert, denied 375 U. S. 902 (1963).
This the 5th day of January, 1965.
/ s / Claude F. Clayton
Claude F. Clayton,
District Judge
15a
N otice of A ppeal
[Caption omitted]
Filed January 5, 1965
Petitioner in the above-captioned habeas corpus proceed
ing hereby appeals to the United States Court of Appeals
for the Fifth Circuit from the order of this court, Honor
able Claude F. Clayton, .District Judge,
(A) denying petitioner’s petition for writ of habeas
corpus; and
(B) denying petitioner’s motion for bail pending dis
position of the habeas corpus proceedings; and
(C) denying petitioner’s motion for a stay of state
court proceedings pending disposition of the habeas
corpus proceeding.
/ s / H enry A ronson
Henry Aronson
5071 ̂ N. Farish Street
Jackson, Mississippi
/ s / A n th o n y GL A msterdam
Anthony G. Amsterdam
3400 Chestnut Street
Philadelphia, Pa. 19104
Counsel for Petitioner
Jan Hillegas
802 N. 14th Street
Columbus, Mississippi.
Petitioner
16a
A pplication for a Certificate of
P robable Cause
[Caption omitted]
Petitioner in the above-captioned habeas corpus proceed
ing, being presently in custody under process of the State
of Mississippi, hereby applies for a certificate that probable
cause exists, pursuant to 28 U. S. C. §2253 (1958), for re
view by the United States Court of Appeals for the Fifth
Circuit of the denial, dated January 5, 1965, by this court,
Honorable Claude F. Clayton, District Judge, of:
(A) petitioner’s petition for writ of habeas corpus;
and
(B) petitioner’s motion for bail pending disposition of
the habeas corpus proceeding (or denial of petitioner’s
request for ruling forthwith on that motion for bail);
and
(C) petitioner’s motion for stay of state proceedings
pending disposition of the habeas proceeding (or denial
of petitioner’s request for ruling forthwith on that
motion for stay).
Respectfully submitted,
/ s / H enry A ronson
Counsel for Petitioner
This 5th day of January, 1965:
It is so certified.
/s / Claude F. Clayton
District Judge
17a
A PPEN DIX II
M iss. Code Ann., 1 9 4 2 , § 2 6 6 6 ( e )
(Recomp. Vol. 1956)
§ 2666. Vagrants, who are.
The following persons are and shall be punished as va
grants, viz.:
^ w
.(c) All persons able to work, having no property to sup
port them, and who have no visible or known means of a
fair, honest and reputable livelihood. The term “visible
and known means of a fair, honest and reputable liveli
hood,” as used in this section, shall be construed to mean
reasonably continuous employment at some lawful occupa
tion for reasonable compensation, or a fixed and regular
income from property or other investment, which income is
sufficient for the support and maintenance of such person.
18a
APPENDIX III
Excerpt From Petitioner-Appellant’s Brief
Distinguishing Brown v. Ray field
One long recognized exception to the ordinary doctrine
requiring exhaustion of state judicial remedies before re
sort to a federal court on habeas corpus [is applicable to
the present ease, although not to Brown v. Ray field. This]
is the principle, recognized in the Royall opinion itself
[Ex parte Royall, 117 U. S. 241 (1886), the origin of the
exhaustion doctrine], that special circumstances justifying
anticipatory federal habeas corpus relief are presented in
“cases of urgency, involving the authority and operations
of the General Government.” 117 U. S. at 251. The classic
case is In re Neagle, 135 U. S. 1 (1890), where the Court
affirmed the discharge of a federal deputy marshal com
mitted for examination on a California murder charge
which, the Court found, arose out of a killing committed
in the scope of his authority as a bodyguard to Mr. Justice
Field, who was then traveling as a Circuit Justice.
“ . . . But all these questions [of Neagle’s authority
to kill in protection of Justice Field] being conceded,
it is urged against the relief sought by this writ of
habeas corpus, that the question of the guilt of the
prisoner of the crime of murder is a question to be
determined by the laws of California, and to be decided
by its courts, and that there exists no power in the
government of the United States to take away the
prisoner from the custody of the proper authorities of
the State of California and carry him before a judge
of the court of the United States, and release him with
19a
out a trial by jury according to the laws of the State
of California. That the statute of the United States
[present 28 U. S. C. §2241 (1958)] authorizes and di
rects such a proceeding and such a judgment in a case
where the offence charged against the prisoner con
sists in an act done in pursuance of a law of the United
States and by virtue of its authority [present § 2241
(c)(2)], and where the imprisonment of the party is
in violation of the Constitution and laws of the United
States [present § 2241(c) (3)], is clear by its express
language” 135 U. S. at 69-70.
The exercise of the power approved in Neagle’s ease was
approved again in Ohio v. Thomas, 173 U. S. 276 (1899),
affirming the release on habeas corpus, prior to trial de
novo on summary appeal from a justice of the peace con
viction, of the governor of a federal disabled veteran’s
home prosecuted for serving oleomargarine in the mess
room in violation of a state statute regulating oleo. Fol
lowing these decisions, the lower federal courts have ordi
narily entertained petitions for the writ in advance of state
trial in cases where federal officers are prosecuted, e.g.,
Reed v. Madden, 87 F. 2d 846 (8th Cir. 1937); In re Fair,
100 Fed. 149 (C. C. D. Neb. 1900); United States ex rel.
Flynn v. Fuellhart, 106 Fed. 911 (C. C. W. D. Pa. 1901);
United States v. Lipsett, 156 Fed. 65 (W. D. Mich. 1907);
Ex parte Warner, 21 F. 2d 542 (N. D. Okla. 1927); Brown
v. Cain, 56 F. Supp. 56 (E. D. Pa. 1944); Lima v. Lawler,
63 F. Supp. 446 (E. D. Va. 1945), or where private citizens
acting under federal officers are prosecuted, Anderson v.
E x c e r p t F ro m P e tit io n e r -A p p e lla n t’s B r ie f
D is tin g u ish in g B ro w n v . R a y fie ld
20a
Elliott, 101 Fed. 609 (4th Cir. 1900), dism’d 22 S. Ct. 930
(1902); West Virginia v. Laing, 133 Fed. 887 (4th Cir.
1904)d
The principle of Neagle, however, carries beyond such
cases. In Wildenhus’s Case, 120 U. S. 1 (1887), the Court
held that federal habeas corpus was appropriately used to
inquire into the claim that three alien seamen, one bound
over to a state grand jury on a murder charge and two
committed as material witnesses to the offense, were ex
empt from state criminal jurisdiction by virtue of a treaty.1 2
In In re Loney, 134 U. S. 372 (1890), it affirmed the federal
circuit court’s discharge of a habeas petitioner held by the
police sergeant of Richmond, Virginia on a warrant charg
ing him with perjury in giving his deposition before a
1 Discharge of federal officers has sometimes been denied after
evidentiary hearing where the evidence did not preponderately
show that the officer was acting within the scope of his federal
authority. United States ex rel. Drury v. Lewis, 200 U. S. 1
(1906) ; Birseh v. Tumbleson, 31 F. 2d 811 (4th Cir. 1929) ;
Castle v. Lewis, 254 Fed. 917 (8th. Cir. 1918) ; Ex parte Tilden,
218 Fed. 920 (D. Ida. 1914). The evidentiary standard is dis
cussed in Brown v. Cain and Lima v. Lawler, cited in text supra.
These cases do not reflect hesitation to use the federal writ in
any case in which the interests of the federal government are
affected; they indicate only that, in each case, the federal interest
was not sufficiently shown on the facts. See In re Matthews, 122
Fed. 248 (E. D. Ky. 1902), and particularly In re Miller, 42 Fed.
307 (E. D. S. C. 1890) ; cf. Ex parte United States ex rel. An
derson, 67 F. Supp. 374 (S. D. Fla. 1946), decided on same
grounds without a hearing.
2 United States ex rel. Kennedy v. Tyler, 269 U. S. 13, 19 (1925),
puts Wildenhus on the ground that it “concerned the delicate
relations of [the] . . . government with a foreign nation.” It
should be noted that the petition was filed by the foreign consul.
Relief was denied on the merits.
E x c e r p t F r o m P e tit io n e r -A p p e lla n t’s B r ie f
D is tin g u ish in g B ro w n v. B a y fie ld
21a
notary public in the case of a contested election of a mem
ber of the federal House of Representatives. And in Ex
parte Wood, 155 Fed. 190 (C. C. W. D. N. 0. 1907), the
circuit court entertained a habeas corpus petition, follow
ing conviction in a police justice’s court but before appeal
for trial de novo in the superior court, of a railroad ticket
agent charged with selling tickets at rates in excess of
those fixed by a state statute whose enforcement the circuit
court had previously enjoined. The court held the statute
unconstitutional, found that open and avowed resistance by
state officials to its injunction presented a situation in
volving “ [n]ot only . . . the rights of litigants . . . , but the
dignity and authority of the Circuit Court of the United
States as well,” 155 Fed. at 191, and discharged the peti
tioner. The Supreme Court cited Neagle and affirmed.
Hunter v. Wood, 209 U. S. 205 (1908).3
The present case falls well within the scope of these de
cisions. As Loney suggests, nothing more substantially af
fects “the authority and operations of the General Gov
ernment” than matters touching the very voting process
by which officers of the national government are elected.
Upon the fair and effective operation of the voting process,
including voter registration, depends the democratic char
acter of the government established by the Constitution.
That this is not a matter of mere private rights has been
legislatively determined: Congress has authorized suit by
the Attorney General in the public interest to protect the
franchise. 42 U. S. C. A. §1971(c)-(f) (1963 Supp.),
amended by Title I of the Civil Rights Act of 1964, 78 Stat.
E x c e r p t F r o m P e tit io n e r -A p p e lla n t’s B r ie f
D is tin g u ish in g B ro w n v. R a y fie ld
3 And see Ex parte Conway, 48 Fed. 77 (C. C. D. S. C. 1891).
22a
241-242, adding two new subsections. And Congress bas
recognized in 42 U. S. C. A. § 1971(d) (1963 Supp.) that
the federal district courts are the appropriate forum for
the litigation of matters affecting the right to vote “without
regard to whether the party aggrieved shall have exhausted
any . . . other remedies. . . . ” Against this background of
federal governmental involvement and express congres
sional concern, the Court of Appeals for the Fifth Circuit
has authorized the United States to sue to restrain Mis
sissippi prosecution of a voter registration worker in cir
cumstances strikingly similar to those of the present case.
United States v. Wood, 295 F. 2d 772 (5th Cir. 1961), cert,
denied, 369 U. S. 850 (1962). The same considerations
which were dispositive in Wood bring the present harass
ment prosecution of a registration worker within [the]
Neagle-Loney principle:
“The foundation of our form of government is the
consent of the governed. Whenever any person inter
feres with the right of any other person to vote or to
vote as he may choose, he acts like a political termite
to destroy a part of that foundation. A single termite
or many termites may pass unnoticed, but each dam
ages the foundation, and if that process is allowed to
continue the whole structure may crumble and fall even
before the occupants become aware of their peril. Erad
ication of political termites, or at least checking their
activities, is necessary to prevent irreparable damage
to our Government. On the other hand, the temporary
postponement of trial of a misdemeanor case before a
justice of the peace causes either no injury or very
slight injury.. . . ” 295 F. 2d at 784-785.
E x c e r p t F r o m P e tit io n e r -A p p e lla n t’s B r ie f
D is tin g u ish in g B ro w n v . B a y fie ld
/
38