Hawkins v. North Carolina Dental Society Petition for Writ of Certiorari to the US Court of Appeals for the Fourth Circuit
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January 1, 1964

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Brief Collection, LDF Court Filings. Hawkins v. North Carolina Dental Society Petition for Writ of Certiorari to the US Court of Appeals for the Fourth Circuit, 1964. 5152eece-b79a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/7f18270c-831a-4e5e-bd84-ce7e62305255/hawkins-v-north-carolina-dental-society-petition-for-writ-of-certiorari-to-the-us-court-of-appeals-for-the-fourth-circuit. Accessed June 13, 2025.
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I n t h e Ihtpratu? ( ta r t at % llmtrfr October T eem, 1966 No................. Reginald A. H awkins, —v.— Petitioner, S tate of North Carolina, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT J ack Greenberg Melvyn Zarr 10 Columbus Circle NewT York, New York 10019 A nthony G. Amsterdam 3400 Chestnut Street Philadelphia, Pa. 19104 J . LeVonne Chambers 405% East Trade Street Charlotte, North Carolina T homas YVyche 2500 Beatties Ford Road Charlotte, North Carolina Charles V. Bell 112 South Irwin Avenue Charlotte, North Carolina Attorneys for Petitioner I N D E X Citations to Opinions Below ......................................... 1 Jurisdiction .................................................................... 2 Questions Presented ... ................... 2 Statutes Involved ........................................................... 2 Statement ........................................................................ 6 PAGE Reasons for Granting the Writ I. Certiorari Should Be Granted to Reverse the Court of Appeals’ Holding That Federal Re moval Jurisdiction May Be Defeated by the State’s Choice of Charges ............................... 9 II. Certiorari Should Be Granted to Clarify the Scope of This Court’s Decision in City of Greenwood v. Peacock, Which Was Extended by the Court Below So As To Bring It Into Conflict With Georgia v. Rachel ..................... 10 III. Certiorari Should Be Granted to Reconsider City of Greenwood v. Peacock Insofar as That Case Indicates Disallowance of Federal Civil Rights Removal Jurisdiction of State Criminal Prosecutions Brought Solely to Harass and Intimidate Negroes and to Punish Them for, and Deter Them From, Exercising Their Right to Vote .............................................................. 13 Conclusion 19 11 PAGE Appendix I Opinion of United States Court of Appeals for the Fourth Circuit........................................................... la Judgment of United States Court of Appeals for the Fourth Circuit ................................................ 9a Appendix II Opinion of United States District Court for the Western District of North Carolina ............... ..... 10a Judgment of United States District Court for the Western District of North Carolina ..................... 14a Table of Cases City of Greenwood v. Peacock, 384 U. S. 808 (1966) —.8,10, 11,12,13,14,15,18 Georgia v. Rachel, 384 U. S. 780 (1966) ..........9,10,11,12, 13,15,16 Harper v. Virginia Board of Elections, 383 U. S. 663 (1966) ......................................................................... 15 Hawkins v. North Carolina Dental Society, 355 F. 2d 718 (4th Cir. 1966) ................................................... 6 Hawkins v. North Carolina State Board of Education, W. D. N. C., No. 2067 .......................................... 6 Kentucky v. Powers, 201 U. S. 1 (1906) ........... ......... 9 Reynolds v. Sims, 377 U. S. 533 (1964) ....... ............. 14 United States v. Clark, 249 F. Supp. 720 (S. D. Ala. 1965) ..........................................................................- 16 Ill PAGE United States v. Raines, 362 U. S. 17 (1960) ............ - 15 United States v. Wood, 295 F. 2d 772 (5th Cir. 1961), cert. den. 369 U. S. 850 (1962) ............................16,17 Walker v. Georgia, 381 U. S. 355 (1965) ..................... 10 Wilson v. Republic Iron & Steel Co., 257 U. S. 92 (1921) ...............-......................................................... 9 Yick Wo v. Hopkins, 118 U. S. 356 (1886) ................. 14 F ederal S tatutes R. S. §2004 (1875) ......................................................... 3 Act of September 9, 1957, Pub. L. 85-315, §131, 71 Stat. 637 .................................................................... -11,14,16 Act of May 6, 1960, Pub. L. 86-449, 74 Stat. 9 0 .......... - 14 Act of July 2, 1964, Pub. L. 88-352, §201 (a), 78 Stat. 243 .......................................-.................................... 10,14 Act of July 2, 1964, Pub. L. 88-352, §203, 78 Stat. 244 .... ................................................................. 10,14,17 Act of August 6, 1965, Pub. L. 89-110, §11 (b), 79 Stat. 443 ............................................. -.........................11,14,17 28 U. S. C. §1254(1) (1964) .......................-................. 2 28 U. S. C. §1443(1) (1964) ................................2,3,11,13 42 U. S. C. §1971(a)(l) (1964) ........... ...................... 2,3,11 42 U. S. C. §1971(b) (1964) .....................2,3,11,12,16,17 42 U. S. C. §1973i(b) (Supp. I, 1965) ..............2, 3, 4,11,12 42 U. S. C. §2000a(a) (1964) ....... ........................... 4,10,11 42 U. S. C. §2000a-2 (1964) ..........................5,10,11,12 S tate S tatutes N. C. Gen. Stat. §163-196(3) ....................................... 6 N. C. Gen. Stat. §163-197(1) ....................................... 6 I n th e CUnurt of Iff? Intfrii §miisB October T erm, 1966 No................ Reginald A. H awkins, Petitioner, State of North Carolina, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Petitioner prays that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Fourth Circuit entered in this case on August 16, 1966. Citations to Opinions Below The per curiam opinion and judgment of the Court of Appeals and Judge Sobeloff’s special concurrence are as yet unreported and are set forth in Appendix I, hereto, pp. la-9a, infra. The remand order and supporting opinion of the United States District Court for the Western District of North Carolina, entered May 15, 1965 and affirmed by the Court of Appeals, are as yet unreported and are set forth in Appendix II, hereto, pp. 10a-14a, infra. 2 Jurisdiction The judgment of the Court of Appeals was entered August 16, 1966 (Appendix I, p. 9a). Jurisdiction of this Court is invoked pursuant to 28 U. S. C. §1254(1) (1964). Questions Presented 1. Did the Court of Appeals err in accepting, without an evidentiary hearing below, the charges against petitioner rather than the allegations of his petition for removal as the basis for testing petitioner’s claim to civil rights re moval jurisdiction over his state criminal prosecution? 2. Did the Court of Appeals err in disallowing federal civil rights removal jurisdiction of petitioner’s state criminal prosecution where that prosecution was brought (a) on account of acts directly involved in the process of Negro voting registration, and (b) solely to harass peti tioner and to punish him and other Negroes for, and deter them from, registering to vote? Statutes Involved A. This case involves the construction of 28 U. S. C. §1443(1) (1964) as it pertains to the protection afforded rights conferred by 42 U. S. C. §§1971(a)(1), (b) (1964), 1973i(b) (Supp. I, 1965), the latter section being Sec. 11(b) of the Voting Rights Act of 1965, 79 Stat. 443. In relevant part, these statutes provide: 1. 28 U. S. C. §1443(1) (1964): §1443. Civil rights cases Any of the following civil actions or criminal prosecu tions, commenced in a State Court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending : (1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the juris diction thereof; . . . 2. 42 U. S. C. §1971(a) (1) (1964) (R. S. §2004 (1875): §1971 . . . (a) (1) All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and al lowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding. 3. 42 U. S. C. §1971 (b) (1964) (Sec. 131 of the Civil Rights Act of 1957, 71 Stat. 637): §1971 . . . (b) Intimidation, threats, or coercion No person, whether acting under color of law or otherwise, shall intimidate, threaten, coerce, or at 4 tempt to intimidate, threaten, or coerce any other per son for the purpose of interfering with the right of such other person to vote or to vote as he may choose, or of causing such other person to vote for, or not to vote for, any candidate for the office of President, Vice President, presidential elector, Member of the Senate, or Member of the House of Representatives, Delegates or Commissioners from the Territories or possessions, at any general, special, or primary election held solely or in part for the purpose of selecting or electing any such candidate. 4. 42 U. S. C. §1973 i (b) (Supp. I, 1965) (Sec. 11(b) of the Voting Rights Act of 1965, 79 Stat. 443): §1973 i . . . (b) Intimidation, threats, or coercion No person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or at tempt to intimidate, threaten, or coerce any person for voting or attempting to vote, or intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for urging or aiding any person to vote or attempt to vote, or intimidate, threaten, or coerce any person for exercising any powers or duties under section 1973a(a), 1973d, 1973f, 1973g, 1973h, or 1973j(e) of this title. B. In this petition, important reference will also be made to the following statutes: 1. 42 U. S. C. §2000a (a) (1964) (Sec. 201(a) of the Civil Rights Act of 1964, 78 Stat. 243): §2000a. Prohibition against discrimination or segrega tion in places of public accommodation—Equal access 5 (a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this sec tion, without discrimination or segregation on the ground of race, color, religion, or national origin. 2. 42 U. S. C. §2000a-2 (1964) (Sec. 203 of the Civil Eights Act of 1964, 78 Stat. 244): §2000a-2. Prohibition against deprivation of, inter ference with, and punishment for exercising rights and privileges secured by section 2000a or 2000a~l of this title No person shall (a) withhold, deny, or attempt to withhold or deny, or deprive or attempt to deprive, any person of any right or privilege secured by section 2000a or 2000a-l of this title, or (b) intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person with the purpose of interfering with any right or privilege secured by section 2000a or 2000a-l of this title, or (c) punish or attempt to punish any person for exercising or attempting to exercise any right or privilege secured by section 2000a or 2000a-l of this title. 6 Statement November 12, 1964, petitioner Reginald A. Hawkins, a Negro dentist active in civil rights work,1 filed in the United States District Court for the Western District of North Carolina a petition for removal of a criminal prose cution from the Superior Court of Mecklenburg County, North Carolina (R.I., 20a.-25a).2 The criminal proceedings against petitioner involved charges of interfering with a special registration commissioner in the performance of her duties, an alleged violation of N. C. Gen. Stat. §163- 196(3), and of fraudulently procuring the registration of certain persons not qualified to vote under North Carolina law, an alleged violation of N. C. Gen. Stat. §163-197(1) (R.I., 23a). Petitioner’s removal petition invoked 28 U. S. C. §1443 (1964), the civil rights removal statute. It alleged that the prosecution against him was maintained for the sole purpose and effect of harassing him and punishing him for, and deterring him and other Negroes from, exercising their right to vote (R.I., 25a), and that the conduct with which he was charged was protected by the First, Four teenth and Fifteenth Amendments and by federal civil rights statutes, including 42 U. S. C. §1971 (R.I., 24a-25a).3 1 See, e.g., Hawkins v. North Carolina Dental Society, 355 F. 2d 718 (4th Cir. 1966) ; Hawkins v. North Carolina State Board of Education, W. D. N. C., No. 2067 (decided April 4, 1966; three- judge court). 2 An amended petition was filed on April 26, 1965 (R. I., 26a). 3 Petitioner had earlier moved the Superior Court of Mecklen burg County to quash the indictments against him on the grounds, inter alia, that the statutes upon which the indictments were based were unconstitutionally vague and thus repugnant to the due 7 Specifically, it alleged that on the night of April 8, 1964, in his capacity as president of the Mecklenburg Organiza tion on Political Affairs, a civic affairs association, peti tioner engaged in a voter registration project to encourage Negroes in the community to register and vote in the forth coming federal and state elections (R.I., 20a). Petitioner visited the homes of prospective voters, determined whether they could read and write and were otherwise eligible for registration; encouraged those persons who were qualified to register to do so; and assisted them by providing transportation to the local high school which was nsed as a place of registration (R.I., 20a-21a). Upon petitioner’s arrival at the place of registration, there were many applicants waiting to be registered (R.I., 21a). The special registration commissioner, assertedly unfamiliar with the registration procedure, requested petitioner to assist her in registering the prospective Negro voters (R.I., 21a). Petitioner suggested, inter alia, that the oath be administered collectively rather than individually; the registration commissioner accepted this suggestion, ad ministered the oath and attested to the qualifications of the applicants (R.I., 20a-21a). These activities led to the indictments against petitioner (R.I., 21a-23a). On April 26, 1965, the State filed a motion to remand, challenging the sufficiency of the petition to invoke fed process clause of the Fourteenth Amendment; that the indict ments were based upon alleged violations of statutes which, on their face and as applied to his conduct, infringed federal statutory and constitutional voting rights and the North Carolina Constitu tion; and that application of the literacy test referred to in the indictments was forbidden by 42 U. S. C. §1971 (1964), depriving petitioner of his rights under that statute (R.I., 7a-lla). This motion was denied (E.I., 12a-19a). After removal of the case, petitioner filed in the District Court a motion to dismiss based on substantially identical grounds (R.I., 27a-29a). 8 eral removal jurisdiction under 28 U. S. C. §1443 (1964) (R.I., 30a-31a). The district court held no evidentiary hearing, but heard oral argument on the question of the sufficiency in law of the removal petition. On May 15, 1965, the district court remanded the case and a timely appeal was taken (R.I., 32a-37a). On August 16, 1966, the United States Court of Appeals for the Fourth Circuit, in a per curiam opinion by Judges Haynsworth and Bryan, affirmed the district court’s remand order. Two grounds for affirmance were cited (Appendix I, p. 2a): 1. The specific charges of the indictment contradicted the allegations of the removal petition. 2. This Court, in City of Greenwood v. Peacock, 384 U. S. 808 (1966), had disallowed removal to federal court of a state criminal prosecution brought to harass the re moval petitioner and to punish him and other Negroes for, and deter them from, registering to vote. As to the first ground of decision, Judge Sobeloff dis sented (Appendix I, pp. 5a, 8a). As to the second ground of decision, Judge Sobeloff concurred, stating that City of Greenwood v. Peacock, 384 U. S. 808 (1966), precluded him from holding that voting harassment prosecutions were removable to federal court (Appendix I, pp. 3a-8a). 9 REASONS FOR GRANTING THE WRIT I. Certiorari Should Be Granted to Reverse the Court of Appeals’ Holding That Federal Removal Jurisdiction May Be Defeated by the State’s Choice of Charges. The majority of the Court of Appeals apparently took the view that civil rights removal should be disallowed whenever the factual allegations in a petition for removal are contradicted by the criminal charges against the peti tioner. No reasoning or authority was assigned for this proposition, which sub silentio overturns accepted practice in the federal courts.4 Judge Sobeloff disagreed, saying: “The test of removability is the content of the petition, not the characterization given the conduct in question by the prosecutor” (Appendix I, p. 8a). The majority’s test threatens the right to removal given by Georgia v. Rachel, 384 U. S. 780 (1966). This Court, in Rachel, did not suggest that removal of state prosecu tions for acts protected by Title II of the Civil Rights Act of 1964 was limited to trespass prosecutions. So to limit Rachel would invite the State to defeat removal merely by charging persons sitting-in at protected public accom modations with, for example, breach of the peace instead 4 I t is well settled that, in dealing with removal petitions, whether in civil rights cases or others, the factual allegations of the petition, absent an evidentiary hearing, are to be taken as true. Kentucky v. Powers, 201 U. S. 1, 33-35 (1906); Wilson v. Republic Iron & Steel Co., 257 U. S. 92, 97-98 (1921). 10 of trespass.5 The present decision by a majority of the Fourth Circuit constitutes such an invitation. To preserve even the narrow right of removal allowed by Rachel, it is vital that this Court grant certiorari to review this wholly frustrating innovation in removal procedure.6 II. Certiorari Should Be Granted to Clarify the Scope of This Court’s Decision in City of Greenwood v. Peacock, Which Was Extended by the Court Below So As To Bring It Into Conflict With Georgia v. Rachel. Section 201(a) of the Civil Rights Act of 1964, 78 Stat. 243, 42 U. S. C. §2000a(a) (1964), pp. 4-5 supra, gives all persons a right of service without racial discrimination in places of public accommodation. Section 203 of the Act, 78 Stat. 244, 42 U. S. C. §2000a-2 (1964), p. 5, supra, assures the practical realization of that right by providing that no person shall “intimidate, threaten or coerce, or attempt to intimidate, threaten, or coerce” or “punish or attempt to punish” another in the exercise of the substan tive rights given by section 2QOOa(a). Similarly, R. S. 5 The danger posed by such an invitation is not merely specu lative. The State of Georgia is now charging persons who sought to enjoy non-discriminatory treatment in the place of public ac commodation involved in Rachel with crimes other than trespass. For example, those persons whose trespass convictions were re versed by this Court in Walker v. Georgia, 381 U. S. 355 (1965), are now being prosecuted for the same activities for crimes other than trespass. These prosecutions have been removed to the United States District Court for the Northern District of Georgia, Cr. Nos. 24701 and 24705. 6 Because the Fourth Circuit is one of the two federal circuits comprising the substantial bulk of the southern States, the present decision represents a critical obstruction of the right given in Rachel, even if it is not persuasive to the other courts of appeals. 11 §2004 (1875), 42 U. 8. C. §197L(a)(l) (1964), p. 3, supra, gives all persons a right to register and vote without racial discrimination. Section 131 of the Civil Eights Act of 1957, 71 Stat. 637, 42 TJ. S. C. §1971(b) (1964), pp. 3-4, supra, assures the practical realization of the latter right by providing that no person shall “intimidate, threaten, or coerce, or attempt to intimidate, threaten or coerce” another in the exercise of voting rights. And section 11(b) of the Voting Eights Act of 1965, 79 Stat. 443, 42 U. S. C. §1973i(b) (Supp. I, 1965), p. 4, supra, further assures protection of the voting right by providing that no person shall “intimidate, threaten, or coerce, or attempt to intimi date, threaten, or coerce any person for voting or attempt ing to vote or . . . for urging or aiding any person to vote or attempt to vote.” In Georgia v. Rachel, supra, this Court sustained re moval under 28 U. S. C. §1443(1) (1964) of state criminal trespass prosecutions brought against Negroes for re fusing to leave places of public accommodation in which they were given a right of service without racial discrimina tion by §2000a. §2000a(a) was read as giving persons seeking restaurant service a right to insist upon such service without discrimination, and §2000a-2 was read as giving a concomitant right not to be prosecuted for that insistence. In City of Greenwood v. Peacock, supra, this Court dis allowed removal of prosecutions against civil rights demon strators based upon their conduct in protesting the denial to Negroes of rights to register and vote given by §1971 (a) (1). Section 1971(a)(1) was read as not extending to per sons a right to protest racial discrimination in voting regis tration, as distinguished from a right to register, or to 12 assist others in registering, to vote without racial discrimi nation. Thus, §§1971 (b) and 1973i(b), which protect those persons directly engaging in the exercise of voting rights in the same way that §2000a-2 protects sit-ins, that is, against the coercive, intimidating and punishing effects of state prosecution for protected activity, were not called into play. The only other possible distinction between Rachel and Peacock—namely, that §2000a-2 includes the word “pun ish” together with “intimidate, threaten or coerce” within its prohibition, while §§1971(b) and 1973i(b) do not—is so palpably insubstantial as to trivialize the significance of these important pieces of federal civil rights legislation. Yet, only this second and wholly impermissible distinction will support the decision below affirming remand of peti tioner’s case. For Dr. Hawkins, unlike the demonstrators in Peacock, was directly engaged in the process of regis tering prospective Negro voters, and the conduct for which he is prosecuted comes flush within the language of §1973i(b): “aiding any person to vote or attempt to vote.” His is clearly conduct for which one of the “specific pro visions of a federal pre-emptive civil rights law”— §1973i(b)—“confers immunity from state prosecution.” Peacock, supra, at 826, 827. The decision of the Court of Appeals extending Peacock to deny removal in his case, therefore, calls imperatively for review by this Court if Rachel is not to be reduced to trifling and rationally un- supportable dimensions. 13 III. Certiorari Should Be Granted to Reconsider City of Greenwood v. Peacock Insofar as That Case Indicates Disallowance of Federal Civil Rights Removal Jurisdic tion of State Criminal Prosecutions Brought Solely to Harass and Intimidate Negroes and to Punish Them for, and Deter Them From, Exercising Their Right to Vote. In authorizing removal to a federal court, under 28 U. .S. C. §1443(1) (1964), of state criminal charges for con duct immunized from prosecution by federal laws providing for equal civil rights, this Court in Georgia v. Rachel, supra, recognized the practical effect of such charges. The mere pendency of state prosecutions, without more, was properly seen to defeat the meaningful exercise of federally pro tected rights because, regardless of their outcome, these prosecutions serve to punish the defendants for, and in timidate and deter them from, exercising their federal rights. Therefore, a removal petitioner was held to be “denied” his federal rights by prosecution in the state court system whenever a federal law providing for equal civil rights immunized his conduct from prosecution. This Court said (384 U. S. at 805): It is no answer in these circumstances that the de fendants might eventually prevail in the state court. The burden of having to defend the prosecutions is it self the denial of a right explicitly conferred by the Civil Rights Act of 1964 as construed in Hamm v. City of Rock Hill [379 U. S. 306], The federal law successfully relied upon by the removal petitioners in Rachel was Title II of the Civil Rights Act 14 of 1964, pp. 4-5, supra, protecting the right of equal access to places of public accommodation. Unless Congress has de termined that voting rights are less worthy or needful of federal protection than the right to equal public accom modations, or unless it has failed to protect the former rights by similarly “specific provisions of a federal pre emptive civil rights law,” City of Greenwood v. Peacock, supra, 384 U. S. at 826, then state prosecutions brought solely to harass and intimidate Negroes and to punish them for, and deter them from, exercising their right to vote should likewise be removable to federal court. Neither Congress nor this Court has relegated voting rights to such a subordinate position. In the Civil Rights Acts of 1957,7 I960,8 1964,9 and 1965,10 Congress has en acted a comprehensive scheme for the protection of voting rights, a legislative scheme certainly no less protective than Title II of the Civil Rights Act of 1964. Analysis of this scheme renders it “difficult to conceive that Congress in tended to place voting rights guarantees on a lower plane of protection than the right to equal public accommoda tions” (Opinion of Judge Sobeloff below, Appendix I, p. 8a). And this Court has long recognized that the right to vote is a fundamental right, “because preservative of all rights” (Yick Wo v. Hopkins, 118 U. S. 356, 370 (1886)). In Reynolds v. Sims, 377 U. S. 533, 561-62 (1964), the Court said: “Undoubtedly, the right of suffrage is a funda mental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unim 7 Act of September 9,1957, Pub. L. 85-315, 71 Stat. 637. 8 Act of May 6,1960, Pub. L. 86-449, 74 Stat. 90. 9 Act of July 2,1964, Pub. L. 88-352, 78 Stat. 241. 10 Act of August 6,1965, Pub. L. 89-110, 79 Stat. 437. 15 paired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scruti nized.” 11 If City of Greenwood v. Peacock, supra, has disallowed federal civil rights removal jurisdiction as a protection of federal voting rights, it has disallowed too much. In Part II, supra, of its petition for certiorari, petitioner has de scribed the two possible grounds of distinction between Peacock and Rachel. One, turning on the adventitious in sertion of the Avord “punish” in Title II of the Civil Rights Act of 1964, is plainly less plausible than the other. But both are equally neglectful of profound and pervasive fed eral constitutional and statutory commitments to effective protection of the American citizen’s right to the franchise without racial discrimination. Peacock was a victim of diffuse presentation in this Court. Confronted by a welter of factual situations and by a statute having an obscure text, a muddy history, a broad range of alternative plausible readings and no authoritative construction by this Court for 60 years, presentation was necessarily dispersed and unfocused. The result was an opinion by the Court which cut too broadly, ignoring the special position of federal voting rights in our federal sys tem and the exhaustive scheme of congressional legislation designed to protect those rights. With all deference, it is submitted the language and in tent of federal voting legislation12 plainly enable petitioner 11 See also, Harper v. Virginia Board of Elections, 383 U. S. 663, 667-68 (1966) ; United States v. Baines, 362 U. S. 17, 27 (1960). 12 The Voting Rights Act of 1965 Avas not enacted until peti tioner’s case was on appeal. HoAvever, in order to promote effi- 16 and others subjected to prosecutions which repress Negro voting registration activity to meet the test of removal announced in Georgia v. Rachel, supra. Title 42 U. S. C. §1971 (b) (1964),13 pp. 3-4, supra, provides an ample declara tion of congressional intention to immunize from state prosecution a person against whom state criminal charges are brought with the sole purpose and effect of harassing and intimidating him and other Negroes and punishing them for, and deterring them from, exercising their right to vote. The United States Court of Appeals for the Fifth Circuit has so held, and its reasoning and authority are persuasive. United States v. Wood, 295 F. 2d t72 (5th Cir. 1961), cert. den. 369 U. S. 850 (1962). In Wood, the Fifth Circuit ordered a federal injunction against the state prosecution of John Hardy, a Negro voter registration worker in Walthall County, Mississippi, for peacefully attempting to encourage Negro citizens to attempt to register to vote. Hardy had been arrested, with out cause, for breach of the peace. The court held that the prosecution of Hardy, regardless of its outcome, would effectively intimidate Negroes in the exercise of their right to vote in violation of 42 U. S. C. §1971 (b) (1964).“ As a matter of language, 42 U. S. C. §1971(b) (1964), is broad enough to cover the case of official intimidation eiency of judicial administration, its impact upon petitioner’s case should be evaluated here, since not to do so would compel peti tioner to file a second petition for removal, were removal under the other voting rights acts disallowed. See Georgia- v. Rachel, supra. “ Enacted in the Civil Eights Act of 1957, §131, 71 Stat. 637. 14 Wood was followed in United States v. Clark, 249 F. Supp. 720 (S. D. Ala. 1965) (three-judge court). 17 through abuse of the state criminal process. “If, as alleged in the removal petition, prosecution against persons as sisting in a Negro voter registration drive is racially mo tivated, this is an ‘attempt to intimidate, threaten, or coerce’ Negroes in the exercise of their right to vote” (Opin ion of Judge Sobeloff, Appendix I, p. 6a). Moreover, the legislative history of 42 U. S. C. §1971 (b) (1964), canvassed in Wood, 295 F. 2d at 781-82, compels the conclusion “that Congress contemplated just such activity as is here alleged —where the state criminal processes are used as instru ments for the deprivation of constitutional rights” (295 F. 2d 781). Sec. 11(b) of the Voting Eights Act of 1965, p. 4, supra, is of particular significance here for two reasons. First, it has signified congressional acceptance of the Wood construction of §1971 (b) in that it specifically pro scribes any “attempt to intimidate, threaten, or coerce any person for urging or aiding any person to vote or attempt to vote.” This should set to rest whatever doubt §1971 (b) may have left that petitioner, himself previously regis tered to vote, merits the protection of federal voting legis lation in aiding others to do so. Second, it has retained the “intimidate, threaten or coerce” formula of §1971(b), ap parently deeming it sufficient to cover the case of official in timidation through harassment prosecutions—a case un doubtedly recognized by the 89th Congress as an important means of repression of persons aiding other persons to register to vote. Thus it can be seen that there is no magic to the language “punish or attempt to punish” of Sec. 203(c) of the Civil Eights Act of 1964 which qualifies it alone to combat harassment prosecutions violative of im portant federal rights. 18 The need for a protective removal jurisdiction over vot ing intimidation cases has been sufficiently stated by Judge Sobeloff (Appendix I, p. 6a): If Georgia is forbidden to prosecute sit-ins under the public accommodations provisions of the 1964 Act, North Carolina would likewise seem to be forbidden to prosecute Dr. Hawkins for assisting in the exercise of [voting] rights. * * * * * It is immaterial that Dr. Hawkins himself was not seeking to register; it is enough that he was assisting other Negroes to do so. If the law’s protection cannot be invoked by the more intelligent and better-educated Negro who furnishes leadership and guidance to others of his race, the purpose of the Voting Eights Act will be severely impaired. Negroes’ rights are as effectively frustrated by prose cutions arising out of the attempt to exercise voting rights as by prosecutions growing out of the assertion of the right to equal accommodations. The use of the criminal process for the purposes of intimidation, I submit, would logically be proscribed in both cases. Permitting appellant to prove in a federal evidentiary hearing that the state prosecution against him is nothing more than an attempt to stifle the exercise of the right to vote by Negroes in Mecklenburg County, North Carolina will not “work a wholesale dislocation of the historic re lationship between the state and federal courts in the administration of the criminal law” (Peacock, supra, 384 U. S. at 831). Rather, it will vindicate respect for that law. 19 CONCLUSION The writ of certiorari should be granted to review and reverse the judgment of the Court of Appeals. Respectfully submitted, J ack Greenberg Melvyn Zarr 10 Columbus Circle New York, New York 10019 A nthony G. A msterdam 3400 Chestnut Street Philadelphia, Pa. 19104 J. L eV onne Chambers 405% East Trade Street Charlotte, North Carolina Thomas W yche 2500 Beatties Ford Road Charlotte, North Carolina Charles V . B ell 112 South Irwin Avenue Charlotte, North Carolina Attorneys for Petitioner A P P E N D I C E S APPENDIX I Opinion of United States Court of Appeals for the Fourth Circuit UNITED STATES COURT OF APPEALS F oe, the F ourth Circuit No. 10,062 S tate of N orth Carolina, versus Appellee, R eginald A. H aw kins, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA, AT CHARLOTTE J . BRAXTON CRAVEN, JR ., DISTRICT JUDGE (Argued April 7, 1966 Decided August 16, 1966.) B e f o r e : H aynsworth, Chief Judge, and S obeloff and B ryan, Circuit Judges. P er Curiam : Dr. Hawkins, a dentist, was indicted by a state grand jury charged with unlawful interference with a voting regis tration commissioner in the discharge of her duties and with the unlawful procurement of the registration of four un- 2a qualified voters. He undertook to remove the prosecution to the District Court. We affirm the order of remand. In the removal petition, it is alleged that he merely ren dered requested assistance to the commissioner, that he made no representations about the qualifications of any voter, that the state’s purpose was to harass and deter him, and, in conclusionary language, that he could not obtain a fair trial in North Carolina’s courts. His allega tions as to what transpired on the particular occasion are in contradiction of the specific charges of the indictment. It is clear that this is not a case removable under 28 u. S. C. A. § 1443. Compare City of Greenwood v. Peacock, 384 H. S. 808, with State of Georgia v. Rachel, 384 U. S. 780; See Baines v. City of Danville, 384 U. S. 890; affirming Baines v. City of Danville, 4 Cir., 357 F. 2d 756; and Wallace v. Virginia, 384 H. S. 891, affirming Commonwealth of Vir ginia v. Wallace, 4 Cir., 357 F. 2d 105. Affirmed. S obeloff, Circuit Judge, concurring specially: Appellant, Dr. Reginald A. Hawkins, is a Negro dentist practicing in Charlotte, North Carolina, who has engaged in civil rights activities. E.g., see Hawkins v. North Caro lina Dental Society, 355 F. 2d 718 (4th Cir. 1966). On September 7, 1964, he was indicted by the Grand Jury of Mecklenburg County, North Carolina, on charges of un lawfully interfering with a special voting registration com missioner, North Carolina General Statutes § 163-196(3), and unlawfully and fraudulently procuring the registration of certain persons not qualified to vote under North Caro lina law, in violation of § 163-197 (h) of the statute. The prosecutions were removed to the District Court for the 3a Western District of North Carolina, pursuant to 28 U. S. C. A. §§ 1443 et seq., but that court remanded to the state court, and this appeal followed. The removal petition recites inter alia, that on the night of April 8,1964, in his capacity as president of the Mecklen burg Organization on Political Affairs, Dr. Hawkins was engaged in a voters’ registration campaign to encourage Negroes in the community to register and vote in the forth coming federal and state elections. Petitioner, and pre sumably others participating in the drive, visited the homes of prospective voters, determined whether they could read and write and were otherwise eligible for registration, en couraged qualified persons to register, and assisted them by providing transportation to the local high school which was used as a place of registration. On petitioner’s arrival at the place of registration, there were a large number of applicants waiting to be registered. The special registration commissioner, due to her asserted unfamiliarity with the procedure, requested Dr. Hawkins to assist in registering the prospective Negro voters. Dr. Hawkins suggested, among other things, that the oath be administered en masse rather than individually, and then the registration commissioner herself attested to the quali fications of the applicants and signed their applications. The indictments mentioned above allegedly grew out of these activities. In Rachel v. Georgia,----- U. S .------ , 34 U. S. L. Week 4563 (1966), the Supreme Court authorized removal to the federal court of prosecutions against Negro defendants charged under a local trespass statute with failing to obey an order to leave a restaurant. Adhering generally to the interpretation of removal enunciated in the Rives-Powers 4a line of decisions,1 the Court nevertheless held that removal was in order if a basis could be shown for a “firm predic tion that the defendant would be ‘denied or cannot enforce’ the specified federal rights in the state court.” Id. a t ----- ; 34 U. S. L. Week at 4570. That basis was found in the public accommodations section of the Civil Rights Act of 1964, which grants all persons, regardless of their race, a right to be served in places of public accommodation, and further prohibits the state from punishing or attempting to punish any person for exercising those rights. Civil Rights Act of 1964, § 203(c). 42 U. S. C. A. § 2000a-2 (1964). The Court went on to hold that: “Hence, if as alleged in the present removal petition, the defendants were asked to leave solely for racial reasons, then the mere pendency of the prosecutions enables the federal court to make the clear prediction that the defendants will be ‘denied or cannot enforce in the courts of [the] state’ the right to be free of any ‘attempt to punish’ them for protected activity.” Ibid. at p .----- . Since the removal petition in Rachel had been remanded by the District Court to the state court without a hearing, the Supreme Court ordered the District Court to conduct a hearing to determine the truth of the petitioners’ allega tions that they had been ordered to leave the restaurant solely for racial reasons. If that should be the finding of the District Court, said the Supreme Court, then “it will be apparent that the conduct of the defendants is ‘im 1 See Kentucky v. Powers, 201 U. S. 1 (1906); Rives v. Virginia, 100 U. S. 303 (1879) ; Strauder v. West Virginia, 100 U. S. 313 (1879) ; Rachel v. Georgia, supra a t ----- , 34 U. S. L. Week at 4565, n. 5. 5a munized from prosecution’ in any court,” and the removal petition should be allowed. Id. a t ----- ; 34 U. S. L. Week at 4571. Rachel cannot fairly be construed to mean that removal may be had only where the facts precisely duplicate those presented there, he.: where a Negro is indicted under a state criminal statute for refusing to leave the premises of a place of public accommodation. The essence of the Rachel decision is that the federal court is empowered to determine the narrow question whether the activities giving rise to a charge in the state courts constitute conduct pro tected by a federal statute that provides for equal civil rights and prohibits the state from prosecuting persons engaged in that conduct. The court’s opinion in the present case states that Dr. Hawkins’ “allegations as to what transpired on the par ticular occasion are in contradiction of the specific charges of the indictment,” and suggests that this is the ground for rejecting removal. The Supreme Court’s opinion in Rachel makes clear, however, that conflict between the allegations in the removal petition and the criminal indictment is not ground for denying removal, provided that (1) the petition alleges facts which, if true, establish that the conduct is protected under a federal statute guaranteeing equal civil rights, and (2) there is a federal statutory prohibition against prosecution in the state courts for such conduct. Establishment of both propositions will impel the conclu sion that the petitioner “is denied or cannot enforce” his rights in the state court, justifying removal. Here, as in the Rachel sit-in cases, Dr. Hawkins was engaged in assisting Negroes in the exercise of equal civil rights guaranteed by a federal statute, namely the Voting Eights Act of 1964. Section 1971(b) of that statute, orig 6a inally a part of the Civil Eights Act of 1957, specifically provides that: “No person, whether acting under color of law or other wise, shall intimidate, threaten, coerce, or attempt to intimidate, threaten or coerce any other person for the purpose of interfering with the right of such other person to vote * * * 42 TJ. S. C. A. § 1971(b) (1964). (Emphasis added.) If, as alleged in the removal petition, prosecution against persons assisting in a Negro voter registration drive is racially motivated, this is an “attempt to intimidate, threaten or coerce” Negroes in the exercise of their right to vote. If Georgia is forbidden to prosecute sit-ins under the public accommodations provisions of the 1964 Act,2 North Carolina would likewise seem to be forbidden to prosecute Dr. Hawkins for assisting in the exercise of rights under the voting provisions of the same act.3 Section 203(c) of the public accommodations portion of the Civil Rights Act of 19644—the basis for permitting removal in Rachel—provides that “No person shall * # * (c) punish or attempt to punish any person for exercising or attempt- ~~*Hamm v. City of Eock Hill, 379 U. S. 306 (1965). 3 It is immaterial that Dr. Hawkins himself was not seeking to register; it is enough that he was assisting other Negroes to do so. If the law’s protection cannot be invoked by the more intelligent and better-educated Negro who furnishes leadership and guidance to others of his race, the purpose of the Voting Eights Act will be severely impaired. Negroes’ rights are as effectively frustrated by prosecutions aris ing out of the attempt to exercise voting rights as by prosecutions growing out of the assertion of the right to equal accommodations. The use of the criminal process for the purposes of intimidation, I submit, would logically be proscribed in both cases. 4 42 U. S. C. A. § 2000a-2 (1964). 7a ing to exercise any right or privilege secured by section 201 or 202 [equal access to public accommodations].” 5 (Em phasis added.) Section 1971(b) of the voting rights pro visions employs a more general prohibition against any attempted intimidation, threats, or coercion by persons “act ing under color of law or otherwise.” 6 Literal comparison of the two provisions suggests that § 1971(b) is a more, not less, sweeping prohibition of official acts of harassment against equal civil rights than the limited proscription of § 203(c), since “attempts to punish” are only one means of coercing, threatening, or intimidating.7 5 Section 201 provides in its entirety: “No person shall (a) withhold, deny, or attempt to withhold or deny, or deprive or attempt to deprive, any person of any right or privilege secured by section 201 or 202, or (b) intimidate, threaten, or coerce any person with the pur pose of interfering with any right or privilege secured by section 201 or 202, or (e) punish or attempt to punish any person for exercising or attempting to exercise any right or privilege secured by section 201 or 202.” 42 U. S. C. A. § 2000a-2 (1964). 6 “No person, whether acting under color of law or otherwise, shall intimidate, threaten, coerce, or attempt to intimidate, threaten or coerce any other person for the purpose of interfering with the right of such other person to vote * * 42 U. S. C. A. § 1971(b) (1964). (Emphasis added.) 7 Section 203(6) prohibits acts of intimidation, threats, and coercion, but does not contain the key words “acting under color of authority of law” -which are found in the comparable provision of § 1971. § 203(c) cures this omission by specifying that no one shall “punish or attempt to punish” any person for exercising or attempting to exercise his rights. Having eliminated acts of state officials from part (b) of § 203, they are thus in effect restored by paragraph (c). In other words, § 1971(b) of the voting rights provisions seems to express in different language the principle contained in § 203(c) of the public accommodations clauses—that the states, acting through state officials are forbidden to employ any form of at tempted intimidation, coercion, or threats, including “attempts to punish.” Thus, § 1971(b) performs the same function as § 203(c), 8a However, in Peacock v. City of Greenwood, —— IJ. S. ----- , 34 U. S. L. Week 4572 (1966), where the voting rights provisions of § 1971 were invoked in support of a removal claim, the Supreme Court held that “no federal law confers immunity from state prosecution [s]” growing out of at tempts to secure the right to vote. Since § 1971 did not contain the specific prohibition against state action that “punish[es] or attempts to punish” present in Rachel the Court distinguished voting rights cases from public ac commodations cases, and refused to permit removal. Under this interpretation of § 1971(b), which is binding upon me, I agree that the present case must be held not entitled to removal. On that ground I concur in today’s per curiam opinion, and not on the ground therein stated, that the allegations of the petitioner are “in contradiction of the specific charges of the indictment.” The test of removability is the content of the petition, not the characterization given the conduct in question by the prosecutor. and suggests that the two clauses should be given the same effect. In this view the Supreme Court’s interpretation of § 203(c) in Hamm v. City of Rock Hill, supra, 379 IJ. S. 306 (1965), would apply with equal force to the prohibitions of § 1971(b). I t is difficult to conceive that Congress intended to place voting rights guarantees on a lower plane of protection than the right to equal public accommodations. 9a Judgment of United States Court of Appeals for the Fourth Circuit UNITED STATES COURT OF APPEALS F ob the F ourth Circuit No. 10,062 S tate of N orth Carolina, vs. Appellee, R eginald A. H aw kins, Appellant. A ppeal from the United States District Court for the Western District of North Carolina. T his cause came on to be heard on the record from the United States District Court for the Western District of North Carolina, and was argued by counsel. On consideration whereof, It is now here ordered and adjudged by this Court that the judgment of the said Dis trict Court appealed from, in this cause, be, and the same is hereby, affirmed with costs. Clement F . H aynsworth J r. Chief Judge, Fourth Circuit 10a APPENDIX II Opinion of United States District Court for the Western District of North Carolina At its September-October term, 1964, the Grand Jury of Mecklenburg County returned indictments against Dr. Reginald A. Hawkins charging, without reference to any particular statute, violations of the election laws of North Carolina. On November 12, 1964, Dr. Hawkins removed these cases (in this court given the single number 1943) from the Superior Court of Mecklenburg County to this court pursuant to 28 U. S. C. A. Sections 1443 and 1446. The cases were set for trial before the undersigned district judge and a jury for April 26, 1965. On that day, and for the first time, the Solicitor for the State moved the court to remand the cases to the Superior Court of Mecklenburg County, questioning federal jurisdiction. The trial of the cases was thereupon postponed and the question of juris diction was set down for argument and heard on May 12, 1965. The court has been helped tremendously by an excellent historical brief filed by counsel for Dr. Hawkins. It is conceded that there is no federal jurisdiction to try these criminal cases arising upon indictments in the state court unless it be under 28 U. S. C. A. Section 1443, which reads as follows: “Section 1443. Civil rights cases “Any of the following civil actions or criminal prose cutions, commenced in a State court may be removed by the defendant to the district court of the United l la States for the district and division embracing the place wherein it is pending: “ (1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof; “(2) For any act under color of authority derived from any law providing for equal rights, or for refus ing to do any act on the ground that it would be in consistent with such law.” Since Virginia v. Rives, 100 U. S. 313 (1880), and Ken tucky v. Powers, 201 U. S. 1 (1906), it has been well settled that removal under present Section 1443(1) was allowable only on a claim of facial unconstitutionality of a statute or constitutional provision. In Rives the Court said that the inability to enforce federal rights of which the removal statute speaks “is primarily, if not exclusively, a denial of such rights, or an inability to enforce them, resulting from the Constitution or laws of the State, rather than a denial first made manifest at the trial of the case”. Virginia v. Rives, supra, 100 U. S. at 319. It may well be argued that subsequent cases have put too narrow a construction upon Rives. The Fifth Circuit has noted, without approval or disapproval, that it may be argued today that the Supreme Court would recognize the right of removal under Section 1443(1) even where no legis lative denial of rights is shown. Rachel v. State of Georgia, 342 F. 2d 336 at 339 (5th Cir. 1965). It would be presumptu ous for a district court to anticipate such an interpretation of Section 1443(1) by the Supreme Court. The Court of Appeals for the Fifth Circuit in Rachel also declined the invitation to do so. The pertinent election laws of North Carolina, allegedly violated by Dr. Hawkins, are facially constitutional. Inter ference with an election registrar or usurpation of the au thority of such a registrar is clearly the kind of conduct which may be made punishable by a state. Section 1443(1) has not yet been expanded beyond the narrow confines of Powers v. Rives, supra. There is no federal jurisdiction under 28 U. S. C. A. Section 1443(1). Petitioner next contends that, in any event, jurisdiction is conferred upon this court under subsection (2) of 28 U. S. C. A. Section 1443 for the reason that Dr. Hawkins acted under “color of authority” to peacefully assist in regis tering qualified persons to vote, and to extend suffrage, under 42 U. S. C. A. Section 1971. It is not altogether clear that Dr. Hawkins is one of those persons who may act “under color of authority”. Quite possibly 28 U. S. C. A. Section 1443(2) may be availed of only by persons who are government officers or persons acting on their behalf or at their instance. See Roard of Education of City of New York v. Citywide Committee for Integration, 342 F. 2d 284 at 285 (2d Cir. 1965). But, assuming, without deciding, that Dr. Hawkins is one of those persons who may come within the statute, it is quite clear, in my opinion, that he did not act under “color of authority” within the meaning of subsection (2) of Sec tion 1443. Nothing in any federal statute called to my at tention, nor in the Federal Constitution, directs or au thorizes Dr. Hawkins to act as a North Carolina election registrar, or to interfere with a duly-authorized registrar, or to usurp the functions of such a registrar. However 13a worthy Ms motives and activity may have been with re spect to his legitimate desire to further suffrage, the laws and constitutional provisions relating to the right to vote are permissive rather than mandatory, and required of Dr. Hawkins no action. Dr. Hawkins fails to point to any fed eral law providing for equal rights or the right to vote which gives him authority or direction to act in the way and manner alleged by the State in its indictments. “When the removal statute speaks of ‘color of authority derived from’ a law providing for equal rights, it refers to a situation where the lawmakers manifested an affirmative intention that a beneficiary of such a law should be able to do something and not merely to one where he may have a valid defense or be entitled to have civil or criminal lia bility imposed on those interfering with him.” People of the State of New York v. Galamison, 342 F. 2d 255 at 271 (2d Cir. 1965). The construction of Section 1443(2) urged by Dr. Haw kins would be a startling innovation having immeasurable impact on federal jurisdiction. That the statute is nearly one hundred years old and has never been so construed is some indication of the novelty of the theory now advanced. Since there is no jurisdiction, Dr. Hawkins’ motion to dismiss the indictment is not reached. The motion to remand will be allowed and an appropriate order will be entered in accordance with this Memorandum of Decision. This 15th day of May, 1965. J . B . C r a v e n , J r . J. Braxton Craven, Jr., Chief Judge Chief Judge United States District Court for the Western District of North Carolina 14a Judgment of United States District Court for the Western District of North Carolina Order of R emand For the reasons stated in a Memorandum, of Decision filed simultaneously, I t is adjudged that these cases (desig nated in this court as Cr. No. 1943) were removed improvi- dently, and without jurisdiction, and it is accordingly ordered that the cases he, and they hereby are, remanded to the Superior Court of Mecklenburg County. A certified copy of the Order of Remand shall be mailed by the Clerk of this court to the Clerk of the Superior Court of Mecklenburg County. This 15th day of May, 1965. J . B . C r a v e n , J r ., J. Braxton Craven, Jr., Chief Judge United States District Court for the Western District of North Carolina 38