Gertge v. City of Clarksdale, MS Brief for Appellant

    Hmti'ft mvdcs ( ta rt of Appeals
F or t h e  F if t h  C irouit 

No. 22323

I n  t h e

M arie Gertge,

-v.

Appellant,

C ity  of Clarksdale, M ississippi,
Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
NORTHERN DISTRICT OF MISSISSIPPI

BRIEF FOR APPELLANT

H enry  M. A ronson

538% North Farish Street 
Jackson, Mississippi 39201

J ack Greenberg

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



I N D E X

PAGE

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

Specification of Error .................................................... 4

A rgum ent :

Appellant’s Removal Petition Adequately States 
a Case for Removal Under 28 U. S. C. §1443 ......  4

Conclusion  .......................................................................................  8

T able of Cases

Arkansas v. Howard, 218 F. Supp. 626 (E. D. Ark. 
1963) ....................      5

Braun v. Sauerwein, 77 U. S. (10 Wall.) 218 (1869) .... 5

Colorado v. Maxwell, 125 F. Supp. 18 (D. Colo. 1954), 
leave to file petition for prerogative writs denied 
sub nom. Colorado v. Knous, 348 U. S. 941 (1955) .... 5

Cox v. Louisiana, 379 U. S. 536 (1965) ........................  5

Dombrowski v. Pfister,-----U. S .------ , 33 U. S. Law
Week, 4321, April 26, 1965 ....................   6

Edwards v. South Carolina, 372 U. S. 229 (1963) ....... 5
Ex parte Dierks, 55 F. 2d 371 (D. Colo. 1932), manda­

mus granted on other grounds sub nom. Colorado v. 
Symes, 286 U. S. 510 (1932) .......................................  5



11

PAGE

Fields v. South Carolina, 375 U. S. 44 (1963) .............. 5

Hague v. CIO, 307 U. S. 496 (1939) ............................  6
Henry v. Rock Hill, 376 U. S. 776 (1964) .....      5
Hodgson v. Millward, 3 Grant (Pa.) 412 (1863) — ..... 5
Hodgson y. Millward, 12 Fed. Cas. 285 (No. 6568)

(E. D. Pa. 1863) ......................................................... 5

Logeman v. Stock, 81 F. Supp. 337 (E>. Neb. 1949) .... 5
Louisiana v. United States, 380 U. S. 145 (1965) ----- 7

New York v. Galamison, -----  F. 2d ----- , 2d Cir.,
Nos. 29166-75, Jan. 26, 1965, cert. den. -----  U. S.
----- , April 26, 1965 .................... ...............................  5

Potts v. Elliott, 61 F. Supp. 378 (E. D. Ky. 1945) ..... 5

Rachel v. Georgia, 5th Cir., No. 21354, March 5, 1965 4

Strauder v. West Virginia, 100 U. S. 303 (1880) ..........  7

Tennessee v. Davis, 100 U. S. 257 (1880) ........ ............  5

S tatutes I nvolved

28 U. S. C. §1443(1) ...... ............ ..................................  3,7
28 U. S. C. §1443(2) ................................................3, 4, 5, 6
42 U. S. C. §1971 ................ .........................................4, 5, 6
42 U. S. C. §1983 ..................... .....................................  5, 6
Habeas Corpus Suspension Act of 1863 ..................... 5
La. Const., Art. VIII, §l(d) ............... ......................... 7



I l l

PAGE

Miss. Code Ann., §1762 (Supp. 1964) ............................  7
Miss. Constitution, §241-A ........................................... 7
Miss. Constitution, §244 ................................................  7
Section 14-8.1, Code of Ordinances, City of Clarksdale .. 2, 6



United (tort nf Apinto
F or t h e  F if t h  C ircuit  

No. 22323

I n  t h e

Marie Gertge,
Appellant,

C ity of Clarksdale, M ississippi,

Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR. THE 
NORTHERN DISTRICT OF MISSISSIPPI

BRIEF FOR APPELLANT

Statement o f the Case

This is an appeal from an order of United States District 
Judge Claude F. Clayton remanding to the Mississippi 
court from which appellant had removed it a criminal prose­
cution arising out of attempts by Negro citizens of Clarks- 
dale, Mississippi to register to vote and to peacefully dem­
onstrate in support of their right to register without racial 
discrimination.

On July 22, 1964, appellant filed in the United States 
District Court for the Northern District of Mississippi her 
verified petition for removal (R. 1-10). The removed pros­
ecution involved a charge of taking a photograph in the 
Clarksdale City Hall without the permission of the Mayor 
and commissioners of that city, in violation of Section



2

14-8.1, Code of Ordinances of the City of Clarksdale, Missis­
sippi.1 On July 29, 1964, appellee moved to remand the 
prosecution to the City Court of the City of Clarksdale, 
assigning as ground therefor (R. 11): “On the face of the 
Petition for Removal filed by petitioner herein, said peti­
tion does not show that defendant-petitioner was or is 
being deprived of any equal civil right by any substantive 
or procedural rule of law of the State of Mississippi or any 
city ordinance of the City of Clarksdale, Mississippi.” 
Judge Clayton accepted briefs of the parties and, taking 
the factual allegations of the petition for removal as true, 
considered the sufficiency in law of the petition for removal 
(R. 14).

The allegations accepted as true are as follows. Appel­
lant was and is a white female associated with the Counsel 
of Federated Organizations (COFO), engaged in assisting 
and encouraging Negro residents in Mississippi to exercise 
their constitutionally protected right to register and vote 
free of racial discrimination. Appellant “was present in 
Clarksdale as a participant in a voter registration drive” 
(R. 14) ; “her arrest and prosecution were for the purpose 
of harassing her and preventing her from carrying on law­
ful and constitutionally protected activities in the voter 
registration drive pursuant to a policy of discrimination 
which is encouraged and enforced by all three branches of 
the state government” (R. 14-15). On July 8, 1964, appel­
lant was arrested in Clarksdale and charged with a viola­
tion of Section 14-8.1 of the Code of Ordinances for having 
taken a photograph in the City Hall without prior authori­

1 Set out at R. 26, note 2.



3

zation (E. 1). Eemoval was timely effected prior to trial 
in the City Court (R. 2).

■Judge Clayton held that the petition for removal was 
insufficient on its face under 28 U. S. C. §1443(1), holding 
that “the only standard for invoking jurisdiction under 
28 U. S. C. §1443(1) is a finding that petitioner will he 
denied a federally guaranteed equal civil right on trial as 
a result of the state constitution, a statute, municipal ordi­
nance, rule of court, or other regulatory provision binding 
on the court in petitioner’s trial so that the state court may 
be presumed in advance to obey such discriminatory pro­
vision” (E. 18).2 Judge Clayton held that appellant’s pros­
ecution under Section 14-8.1 did not meet the test because 
“the face of the ordinance” did not violate the equal pro­
tection clause of the Fourteenth Amendment (E. 27).

Moreover, Judge Clayton held that removal would not lie 
under §1443(1), even assuming that appellant’s arrest and 
prosecution were carried out “as a harassing tactic in fur­
therance of a policy of discrimination” (R. 26).

Judge Clayton also disallowed removal under §1443(2), 
holding “removal is not available under subsection (2) un­
less the act for which the state prosecution is brought was 
done in at least a quasi-official capacity derived from a law 
providing for equal rights” (E. 30).

Judge Clayton’s remand order was entered December 23, 
1964 (E. 33-34); timely notice of appeal to this Court was 
filed December 30, 1964 (E. 36). On December 31, 1964, 
Judge Clayton stayed his remand order until final disposi­
tion by this Court (R. 38).

2 Judge Clayton’s opinion is reported at 237 F. Supp. 213 (1964).



4

Specification o f Error

1. The Court below erred in holding that appellant’s 
verified petition for removal did not adequately allege a 
removable case under 28 U. S. C. §1443.

A R G U M E N T

Appellant’s Removal Petition Adequately States a 
Case for Removal Under 2 8  U. S. C. §1443

“If a petition for removal states sufficient in the way of 
allegations to support proof of adequate grounds for re­
moval, it is to be treated in the same manner as a complaint 
in federal court.” Rachel v. Georgia, 5th Cir., No. 21354, 
decided March 5, 1965, slip opinion at p. 8. “Unless there 
is patently no substance in [the] . . . allegation, a good 
claim for removal . . . has been stated.” Id. at p. 9.

A. T he R em oval Petition  Is Sufficient Under 2 8  U. S. C.
§ 1 4 4 3 (2 ) .

Appellant’s petition adequately alleges that she is prose­
cuted for acts under color of authority of federal law pro­
viding for equal civil rights (R. 4). See appellant’s Ap­
pendix Brief, Parts IIA, C filed herewith.3

The laws providing for equal civil rights which appellant 
invokes are 42 U. S. C. §1971 (protecting the right to vote 
free of racial discrimination and to peacefully encourage

3 Because counsel for appellant are counsel in numerous cases 
pending in this Court which raise virtually identical issues of con­
struction of 28 U. S. C. §1443, appellant has sought leave of the 
Court to include the arguments common to all cases in an Appendix 
Brief, to be filed in all.



others to do so) and 42 U. S. C. §1983 (protecting the First- 
Fourteenth Amendment right of freedom of expression 
and the federal privilege and immunity of supporting the 
right of Negro citizens to register to vote in state and 
federal elections free of the racial discrimination proscribed 
by 42 U. S. C. §1971), discussed in appellant’s Appendix 
Brief, Parts IIA, B (l). On the facts alleged in the removal 
petition, there can be no doubt that the conduct for which 
appellant is prosecuted is colorably4 protected by the First- 
Fourteenth Amendments, Edwards, v. South Carolina, 372 
U. S. 229 (1963); Fields v. South Carolina, 375 U. S. 44
(1963) (per curiam) ; Henry v. Rock Hill, 376 U. S. 776
(1964) (per curiam) ; Co x y . Louisiana, 379 U. S, 536 (1965),

4 A state defendant petitioning for removal under §1443(2) is 
not required to show that he is protected by federal law: that ques­
tion is the issue on the merits after removal jurisdiction has been 
sustained. On the preliminary question of jurisdiction, it should 
be sufficient to show colorable protection. This is the rule in federal- 
officer removal eases, e.g., Tennessee v. Davis, 100 U. S. 257, 261-62 
(1880) ; Potts v. Elliott, 61 F. Supp. 378, 379 (E. D. Ky. 1945) 
(civil case); Logemann v. Stock, 81 F. Supp. 337, 339 (D. Neb. 
1949) (civil case) ; Ex parte Dierks, 55 F. 2d 371, 374 (D. Colo. 
1932), mandamus granted on other grounds sub nom. Colorado v. 
Symes, 286 U. S. 510 (1932); Colorado v. Maxwell, 125 F. Supp. 
18, 23 (D. Colo. 1954), leave to file petition for prerogative writs 
denied sub nom. Colorado v. Knows, 348 U. S. 941 (1955), and it 
was so held under the Habeas Corpus Suspension Act of 1863 re­
moval provisions, on which the removal section of the Civil Rights 
Act of 1866, now 28 U. S. C. §1443(2) (1958), was based. See 
Hodgson v. Millward, 12 Fed. Cas. 285 (No. 6568) (E. D. Pa. 
1863) (civil case). The facts of the case appear in Hodgson v. 
Millward, 3 Grant (Pa.) 412 (Strong, J ., at nisi prius, 1863), and 
Justice Grier’s decision is approved in Braun v. Sauerwein, 77 TJ. S. 
(10 Wall.) 218, 224 (1869). New York v. Galamison, 2d Cir., Nos.
29166-75, decided January 26, 1965, cert, den., -----  U. S. ------ ,
April 26, 1965, takes this view, in dictum, under present §1443(2). 
Slip opinion at p. 976. Compare Arkansas v. Howard, 218 F. Supp. 
626 (E. D. Ark. 1963), where defendant was unable to make a 
colorable showing.



6

and constitutes an exercise of the federal privilege and 
immunity of supporting the efforts of Negro citizens to 
register to vote free of racial discrimination, cf. Hague v. 
C. I. 0., 307 U. S. 496 (1939). For these reasons, prosecu­
tion for those acts is removable.

B, T he R em oval Petition  Is Sufficient Under 2 8  U. S. C.
§ 1 4 4 3 (1 ) .

Appellant’s petition adequately alleges that she is denied 
and cannot enforce in the Mississippi state courts rights 
under federal laws providing for equal civil rights (R. 4-5). 
See appellant’s Appendix Brief, Parts IIA, B. The rights 
claimed are those enumerated in the preceding paragraph 
under the First, Fourteenth and Fifteenth Amendments 
and 42 U. S. C. §§1971, 1983 and discussed in appellant’s 
Appendix Brief, Part IIB (l). Appellant is denied these 
rights by prosecution under Section 14-8.1 of the Code of 
Ordinances of the City of Clarksdale, Mississippi. See 
appellant’s Appendix Brief, Part IIB(2).

Moreover, appellant is denied federal rights because “her 
arrest and prosecution were for the purpose of harassing 
her and preventing her from carrying on lawful and con­
stitutionally protected activities in the voter registration
drive” (R. 14-15). In Dombrowski v. Pfister, -----  TJ. S.
----- , 33 U. S. L aw W eek  4321, 4324, April 26, 1965, the
Supreme Court of the United States held that state prose­
cutions brought “to impose continuing harassment in order 
to discourage [civil rights] activities” were enjoinable by 
federal courts under 42 U. S. C. §1983. Thus, the Supreme 
Court has recognized a “right” not to be subjected to bad 
faith or harassment prosecutions; such a right is eo ipso 
“denied” by prosecution.



7

In addition, appellant’s case is removable under 28 
U. S. C. §1443(1) as construed in Strauder v. West Vir­
ginia, 100 U. S. 303 (1880), because appellant is denied and 
cannot enforce in the state courts his right to a trial by a 
jury from which Negroes are not diseriminatorily excluded. 
By force of the holding in Louisiana v. United States, 380 
U. S. 145 (1965),6 certain of Mississippi’s constitutional 
provisions governing the qualifications of electors6 are void 
on their face, and hence Miss. Code Ann. §1762 (Supp. 
1964), which qualifies as jurors only electors or resident 
freeholders,7 is equally facially unconstitutional.

Finally, Judge Clayton held that even “ [ajssuming ar­
guendo the truth of petitioner’s assertion that the enacting 
Congress did not intend this restrictive construction of the

6 The Supreme Court struck down Louisiana’s voter registration 
laws because they vested in the registrar’s discretion to determine 
the qualifications of applicants for registration circumscribed by 
no definite or objective standards for the registration process. The 
Louisiana laws provided, inter alia, that an applicant “be able to 
understand and give a reasonable interpretation of any section of 
[the United States or Louisiana] Constitution when read to him by 
the registrar.” La. Const. Art. VIII, §l(d).

6 Mississippi Constitution, §244, in relevant p a rt:
Every elector shall, in addition to the foregoing qualifications 
be able to read and write any section of the Constitution of this 
State and give a reasonable interpretation thereof to the county 
registrar. He shall demonstrate to the county registrar a rea­
sonable understanding of the duties and obligations of citizen­
ship under a constitutional form of government. . .

Mississippi Constitution, §241-A:
In addition to all other qualifications required of a person to 
be entitled to register for the purpose of becoming a qualified 
elector, such person shall be of good moral character.

7 Miss. Code Ann. §1762 (Supp. 1964) :
Every male citizen not under the age of twenty-one (21) years, 
who is either a qualified elector or a resident freeholder of the 
county for more than one year . . .  is a competent juror . . . .



a

statute, and that the courts misconceived the legislative 
purpose, it seems fruitless to consider this point after nearly 
a century of judicial construction importing a contrary 
view. At this date it would appear that nothing short of an 
act of Congress could re-establish the supposed original 
intent of that body” (R. 24). However, Congress has in 
fact acted, apparently with a view to enforcing the original 
intent behind §1443. See appellant’s Appendix Brief, p. 38.

CONCLUSION

For the foregoing reasons, the order of the district 
court remanding appellant’s case should be reversed.

Respectfully submitted,

H enry  M. A ronson

538% North Farish Street 
Jackson, Mississippi

J ack Greenberg

M elvyn Zarr

10 Columbus Circle 
New York, New York 10019

A n thony  G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pa. 19104

Attorneys for Appellant



9

Certificate of Service

T h is  is to certify  that on May ......., 1965, I served a
copy of the foregoing Brief for Appellant and Appendix 
Brief for Appellant upon James A. Phyfer, Esq., attorney 
for appellee, by mailing copies thereof to him at P. 0. Box 
306, Clarksdale, Mississippi by United States mail, postage 
prepaid.

Attorney for Appellant



38