Wallace v. Commonwealth of Virginia Petition for Rehearing

    14 C 57-3/
I n  th e

S>«prrmr (Emirt of %  Initrii States
O ctober T erm , 1965 

No. 1011

F red W allace,

— v.—
Petitioner,

Co m m on w ealth  of V irginia,
Respondent.

L eah  B. M orris, H ollis B. M orris,
H erm an  T rent and F r an k  B r o w n ,

Petitioners,
— v.—

Com m on w ealth  of V irginia,

ON WRIT OF CERTIORARI TO THE UNITED STATES 
APPEALS FOR THE FOURTH CIRCUIT

Respondent.

COURT OF

PETITION FOR REHEARING

J ack  Greenberg
James M. N abrit, III
Charles H. J ones, Jr .
Charles Stephen  R alston
M elvyn  Z arr

10 Columbus Circle
New York, New York 10019

S. W . T ucker
H enry  L. M arsh , III 

214 East Clay Street 
Richmond, Virginia 23219

George E. A llen
1809 Staples Mill Road 
Richmond, Virginia

A n th o n y  G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pa. 19104

Attorneys for Petitioners



I N D E X

R easons eor Granting Rehearing ........................................ 2

I. The Questions Are of Surpassing Importance .. 2

II. The Grounds of the Decision Are Mistaken....... 4

A. Burden on the Federal Courts .............................  4

B. Destruction of Federal Rights by State
Court Trial .......................................................... 6

C. Other Federal Remedies......................................  8

Conclusion .....................................................................................  11

Certificate .....................................................................................  12

T able of Cases

Alabama v. Boynton, S. D. Ala., C. A. No. 3560-65,
April 16, 1965 .................................................................... 5

Alexander v. Cox, 348 F. 2d 854 (5th Cir. 1965) ......... 6

Bauers v. Heisel,------F. 2 d -------  (3rd Cir. 1966) (34
U. S. L. Week 2664) ........................................................  9

City of Birmingham v. Shuttlesworth, N. D. Ala. Cr.
66-203 ................................................................................... 7

City of Greenwood v. Peacock, 34 U. S. L. Week 4572
(U. S., June 20, 1966) ...................... 1, 2, 3, 4, 5, 6, 7, 8,10

Cochran v. City of Eufaula, 251 F. Supp. 981 (M. D.
Ala. 1966) ...........................................................................  5

Cox v. Louisiana, 379 U. S. 559 (1965) ............................... 7

PAGE



Cox v. Louisiana, 348 F. 2d 750 (5th Cir. 1965) ........... 7
Crenshaw County Board v. Barnett, 251 F. Supp. 917 

(M. D. Ala. 1966) .........................................................  5

Dombrowski v. Pfister, 380 U. S. 479 (1965) ............... 9
Dresner v. Stoutamire, 5th Cir., No. 21802, August 5,

1964 ..................................................................................  10

Edwards v. South Carolina, 372 U. S. 229 (1963) .......  9

Forman v. City of Montgomery, 245 F. Supp. 17 (M. D.
Ala. 1965), aff’d, 355 F. 2d 930 (5th Cir. 1966), cert, 
denied, 34 U. S. L. Week 3430 (U. S., June 20, 1966) 5

Georgia v. Rachel, 34 U. S. L. Week 4563 (U. S., June 
20, 1966) ..........................................................................  3

Hillegas v. Sams, 383 U. S. 928 (1966) ..........................  10
Hughley v. City of Opelika, 251 F. Supp. 566 (M. D.

Ala. 1965) ....................................................................... 5

In re Shuttlesworth, 369 U. S. 35 (1962) ......................  7
In re Wright, 251 F. Supp. 880 (M. D. Ala. 1965) .......  5

Johnson v. City of Montgomery, 245 F. Supp. 25 (M. D.
Ala. 1966) ....................................................................... 5

Lefton v. City of Hattiesburg, 333 F. 2d 280 (5th Cir.
1964) ................................................................................  6

McMeans v. Mayor’s Court, 247 F. Supp. 606 (M. D.
Ala. 1965) ....................................................................... 5

Mapp v. Ohio, 367 U. S. 643 (1961) ..............................  9
Monroe v. Pape, 365 U. S. 167 (1961) ..........................  9

11

PAGE



People v. Berger, 239 F. Supp. 219 (S. D. N. Y. 1965) .. 6

Shuttlesworth v. City of Birmingham, 368 U. S. 959
(1962) .............................................................................. 6

Shnttlesworth v. City of Birmingham, 373 U. S. 262
(1963) ..............................................................................  7

Shuttlesworth v. City of Birmingham, 376 U. S. 339
(1964) ..............................................................................  7

Shuttlesworth v. City of Birmingham, 382 U. S. 87
(1965) .............................................................................. 6

Smith v. City of Montgomery, 251 F. Supp. 849 (M. D.
Ala. 1966) ......................................................................  5

Thomas v. Mississippi, 380 U. S. 524 (1965) ..............  2
Townsend v. Sain, 372 U. S. 293 (1963) ......................  9

Wells v. Reynolds, 382 U. S. 39 (1965) ..........................  9

Statutes

18 U. S. C. §241 (1964) .................................................  8

18 U. S. C. §242 (1964) .................................................  8

28 U. S. C. §1443 (1964) ............................................. 2, 4, 9

28 U. S. C. §2241 (c) (3) (1964) ........................................  9

Other A uthorities

Amsterdam, Criminal Prosecutions Affecting Feder­
ally Guaranteed Civil Rights: Federal Removal and 
Habeas Corpus Jurisdiction to Abort State Court 
Trial, 113 U. Pa. L. Rev. 793 (1965) ............................ 7,10

I l l

PAGE



IV

PAGE

Council’s R eport and R ecommendations to the Con­
ference (White House Conference “ To Fulfill These 
Rights,” June 1-2, 1966) ............................................  8

Special Committee on Civil R ights U nder L aw  of 
the A ssociation of the B ar of the City of N ew  
Y ork, Proposal for a F ederal Civil R ights P roce­
dure A ct (1966) ........................................................................  8

U nited States Commission on Civil R ights, L aw  E n ­
forcement (1965) ........................................................ 8



I n  the

0itprrmj> (Emtrt of the i&tatra
October T erm, 1965 

No. 1011

F red W allace,

Petitioner,
— v.—

Commonwealth of V irginia,

Respondent.

L eah B. M orris, H ollis B. M orris,
H erman T rent and F rank B rown,

Petitioners,
— v.—

Commonwealth of V irginia,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT 

OF APPEALS FOR THE FOURTH CIRCUIT

PETITION FOR REHEARING

Petitioners pray that this Court grant rehearing of its 
decision of June 20, 1966, affirming per curiam the judg­
ments below on authority of its opinion in City of Green­
wood v. Peacock, 34 U. S. L. Week 4572 (U. S., June 20, 
1966). By the present petition, petitioners respectfully ask 
rehearing of the questions of construction of the civil rights



2

removal statute, 28 U. S. C. §1443 (1964), decided herein 
and in the majority opinion in the Peacock case, and assign 
the following reasons.

REASONS FOR GRANTING REHEARING

I.

The Questions Are of Surpassing Importance.

Petitioners do not lightly ask reconsideration of issues 
of law determined by this Court in painstaking and com­
prehensive opinions following plenary briefing and argu­
ment. But the decision in Peacock and companion cases is 
one of the most grievous setbacks to the practical enforce­
ment of federal equal civil rights suffered in this century. 
It holds that peaceful advocates of civil rights, subjected 
to “ an outrageous denial of their federal rights” by “be­
ing prosecuted on baseless charges solely because of their 
race,” 34 U. S. L. Week at 4578, have no effective remedy 
by removal of those baseless prosecutions to the federal 
district courts for timely and decisive dismissal. Rather 
they are remitted to the pains, perils and prolongations of 
litigation in the state courts—litigation which in the Missis­
sippi Freedom Rider cases alone required delay of four 
years and expenditure of many thousands of dollars before 
the vindication in this Court, on direct review of state crim­
inal convictions, of plain and callous deprivations of fun­
damental constitutional rights. Thomas v. Mississippi, 380 
U. S. 524 (1965).

By this decision, only one narrow right among the many 
which Congress has attempted to protect in fulfillment of 
the promises made to the American Negro by the Four­



3

teenth and Fifteenth Amendments—the right of equal pub­
lic accommodations assured by Title II of the Civil Rights 
Act of 1964—is to be effectively exercised free of the stifling 
threat of repressive state prosecutions. Georgia v. Rachel, 
34 U. S. L. Week 4563 (U. S., June 20, 1966). Citizens 
seeking to enjoy or advocate other precious rights—rights 
to a desegregated education, to voting and employment 
without racial discrimination, even to equal accommoda­
tion in publicly-owned facilities not described in Title II, 
e.g., courthouses—are left to the vicissitudes of the state 
criminal process.

Rehearing is appropriate when a matter of this impor­
tance is decided by a close division of the Court. Rehear­
ing is the more appropriate in these civil rights removal 
cases for an additional reason. At the time of briefing 
and argument of Peacock and Rachel and of prepara­
tion of certiorari petitions in this and other cases, counsel 
could not fairly have addressed argument to the specific 
considerations which later emerged as dispositive of the 
Court’s decision. Confronted by a statute having an obscure 
text, a muddy history, a broad range of alternative plau­
sible readings and no authoritative construction by this 
Court for sixty years, argument was necessarily dispersed 
and unfocused. Only upon publication of the Court’s opin­
ions have the critical matters of judgment persuasive to a 
majority of the Court become apparent.



4

n.
The Grounds of the Decision Are Mistaken.

The prevailing Peacock opinion makes clear that neither 
stare decisis nor the technicalities of statutory language 
or history controlled the result. Petitioners share this 
view. The legalistic arguments supporting broader or nar­
rower constructions of §1443 have been fully canvassed in 
the documents before the Court in these several cases and 
will not be repeated here. These arguments equally sup­
port the majority or dissenting views in Peacock.

The considerations dispositive to a majority of the Court 
appear to have been threefold: (A ) that ample construc­
tion of §1443 would unduly burden the lower federal courts; 
(B) that leaving prosecutions “ on baseless charges solely 
because of . . . race” in the state courts would not be unduly 
destructive of federal rights; and (C) that, in any event, 
other federal remedies would be available to preserve those 
rights.

A. Burden on the Federal Courts

In practice, removal litigation has not burdened the 
lower federal courts. Petitioners invite this Court’s at­
tention to, for example, the several removal dispositions 
made in the United States District Court for the Middle 
District of Alabama, where District Judge Frank M. John­
son, Jr. gave fair and scrupulous attention to the dictates 
of the Fifth Circuit’s Peacock opinion during the year prior 
to its reversal by this Court. The Middle District has been 
a vitally active center of civil rights contention throughout 
the period, yet removal hearings were invariably proc­
essed with efficiency and dispatch. In a number of cases,



5

the removants’ federal contentions were found unproved 
and the cases remanded. Forman v. City of Montgomery, 
245 F. Supp. 17 (M. D. Ala. 1965), aff’d, 355 F. 2d 930 
(5th Cir. 1966), cert, denied, 34 U. S. L. Week 3430 (IT. S., 
June 20, 1966); Johnson v. City of Montgomery, 245 F. 
Supp. 25 (M. D. Ala. 1966); Crenshaw County Board v. 
Barnett, 251 F. Supp. 917 (M. D. Ala. 1966); Cochran v. City 
of Eufaula, 251 F. Supp. 981 (M. D. Ala. 1966). In other 
cases, removants’ claims that their prosecutions were main­
tained to harass them for federally protected activity were 
sustained and charges expeditiously dismissed. McMeans 
v. Mayor’s Court, 247 F. Supp. 606 (M. D. Ala. 1965); In re 
Wright, 251 F. Supp. 880 (M. D. Ala. 1965); Hughley v. 
City of Opelika, 251 F. Supp. 566 (M. D. Ala. 1965); Smith 
v. City of Montgomery, 251 F. Supp. 849 (M. D. Ala. 1966). 
In this district and others the process worked smoothly. 
In the Southern District of Alabama, to take another ex­
ample, nearly 3,000 harassment prosecutions arising out of 
the Selma demonstrations in January, 1965 were terminated 
within three months. Alabama v. Boynton, S. D. Ala., 
C. A. No. 3560-65, April 16, 1965. This performance may 
profitably be compared with the record in the Mississippi 
Freedom Eider cases mentioned previously.

In its Peacock opinion, this Court noted the Administra­
tive Office figure that 1079 criminal cases were removed to 
federal district courts in the Fifth Circuit alone during 
fiscal 1965. 34 U. S. L. Week at 4579. Petitioners invite 
the Court’s reconsideration of the significance of that figure. 
In the first place, it is obviously inflated by the now-dis­
carded practice of many federal district court judges of re­
quiring separate removal petitions and numbers for each 
removal petitioner, even in cases of hundreds of ar-



6

rests at a single demonstration, disposable by a single 
jurisdictional hearing. See Lefton v. City of Hattiesburg, 
333 F. 2d 280 (5th Cir. 1964); Alexander v. Cox, 
348 F. 2d 854 (5th Cir. 1965). Second, the statistic 
does not disclose the number of removed cases which would 
be found improperly removed even under the minority con­
struction of §1443 in Peacock, cf. People v. Berger, 239 
F. Supp. 219 (S. D. N. Y. 1965). It thus does not support 
the majority’s implication that the minority’s construction, 
urged by petitioners, would flood the district courts 
of the Fifth Circuit with more than a thousand cases; that 
number plainly is the product only of the absence of any 
construction of §1443 by this Court during sixty years. 
Third, the statistic does not purport to reveal the burden 
imposed on the federal courts by requiring petitioners who 
might properly have removed under that minority con­
struction to resort to this Court for certiorari or to federal 
district courts for post-conviction habeas corpus for vin­
dication of their rights. Fourth, the statistic does not re­
veal the number of cases properly removed under Rachel.

B. Destruction of Federal Rights by State Court Trial

The majority opinion in Peacock supports by exemplary 
citation of Shuttlesworth v. City of Birmingham, 382 U. S.
87 (1965), its judgment that Supreme Court review of state 
criminal convictions provides ample protection against 
racial harassment conducted through the state criminal 
process. The citation has a bitter irony, although its ironic 
quality does not arise from the uniqueness of Shuttles- 
worth’s case. Reverend Shuttlesworth has been badgered by 
more than a dozen criminal prosecutions in Birmingham 
since the beginning of civil rights activity there. The 
Court’s opinion cited above marked his fifth appearance^-rx 
here. See Shuttlesworth v. City of Birmingham, 368 U. S.



7

959 (1962); In re ShuttlesCetffih, 369 U. S. 35 (1962); Shut~-~ 
tlesworth v. City of Birmingham, 373 U. S. 262 (1963^;/ 
Shuttlesworth v. City of Birmingham, 376 U. S. 339 (1964) a 
And following reversal of his conviction in 382 U. S., after 
31/2 years of litigation and the expenditure of many thou­
sands of dollars in unrecoverable court expenses, he has 
been subjected to reprosecution on the charge there con­
sidered, for violation of Birmingham City Code §1142 as 
amended. In order to ease the harassment, the case was re­
moved to federal court but, on June 28, 1966 was remanded 
to state court on authority of Peacock. City of Birmingham 
v. Shuttlesworth, N. D. Ala. Cr. 66-203. See also Cox v. 
Louisiana, 348 F. 2d 750 (5th Cir. 1965), describing the 
reprosecution of Cox following Cox v. Louisiana, 3/9 U. S. 
559, 575 (1965).

The Peacock opinion poses the right question when it 
asks whether “ the historic practice of holding state criminal 
trials in state courts—with power of ultimate review of 
any federal questions in this Court— [has] been such a 
failure that the relationship of the state and federal courts 
should now be revolutionized.” 34 U. S. L. Week at 4580. 
In the limited sphere of state prosecutions for conduct pro­
tected by federal civil rights law, petitioners submit the 
evidence is overwhelming that the answer to that question 
is, yes. See the documented discussion in Amsterdam, 
Criminal Prosecutions Affecting Federally Guaranteed 
Civil Rights: Federal Removal and Habeas Corpus Juris­
diction to Abort State Court Trial, 113 U. Pa. L. Rev. 793, 
794-799, 836-842, 861-862 (1965). A point of vital signifi­
cance is that the federal circuit judges of the Court of Ap­
peals for the Fifth Circuit—having had long and discourag­
ing experience in such matters—concluded in their Peacock



8

decision that the answer to the question was, yes. So did 
federal district judges in the Fifth Circuit. See pp. 4-5, 
supra. The same conclusion has been reached in every 
authoritative recent study of the problem. See U nited 
States Commission on Civil R ights, L aw  E nforcement 
57-83, 130-135, 175 (1965); Special Committee on Civil 
R ights U nder L aw  of the A ssociation of the B ar of the 
City of N ew  Y ork, P roposal for a F ederal Civil R ights 
Procedure A ct (1966); Council’s R eport and R ecommenda­
tions to the Conference (White House Conference “ To 
Fulfill These Rights,” June 1-2, 1966) 80-81, 87-88 (1966). 
Surely, if the need for a protective federal jurisdiction 
in this area has not been demonstrated, one may despair of 
justifying in any case the existence and necessity of the 
extensive jurisdiction of the lower federal courts.

C. Other Federal Remedies

Promising on paper, the other federal remedies 
enumerated in Peacock for the relief of persons in peti­
tioners’ situation prove illusory in practice. Review by 
this Court on direct appeal of state criminal convictions 
has already been discussed. Federal criminal prosecutions 
of, and civil damage actions against, offending state officials 
offer none of the protection sought by removal. It is quite 
implausible to suppose that the resources of the Civil 
Rights Division of the Department of Justice are ample 
to meet unconstitutional state criminal prosecutions with 
corresponding federal criminal prosecutions; even if they 
were, it is more than dubious that harmonious federal- 
state relations would be better served by this course. In 
any event, southern juries and the scienter requirements of 
18 IT. S. C. §§241, 242 (1964) combine to deprive the fed-



9

eral criminal remedy of efficacy to deal with common civil 
rights situations where the line of federal constitutional 
protection is far from clear. See Edwards v. South Caro­
lina, 372 U. S. 229 (1963). Southern juries are the arbiters 
of justice in damage actions as well. Although Monroe v. 
Pape, 365 U. S. 167 (1961), was decided prior to Mapp 
v. Ohio, 367 U. S. 643 (1961), Mapp nevertheless rejected 
the adequacy of redress by civil money actions. This con­
clusion is no less appropriate here for virtually identical
reasons. See also, Bauers v. H eisel,------F. 2 d -------  (3rd
Cir. 1966) (34 U. S. L. Week 2664), where it was held that 
a state prosecutor was immune to suit under the federal 
civil rights statute, 42 U. S. C. §1983.

The federal injunctive remedy allowed in Dombrowski 
v. Pfister, 380 U. S. 479 (1965), would, of course, be quite 
ample if it could be timely had. But this Court has al­
ready clouded Dombrowski. See Wells v. Reynolds, 382 
U. S. 39 (1965). Petitioners do not understand the majority 
in Peacock to hold relief by injunction available in all 
cases within the scope of civil rights removal under the 
construction of §1443 which petitioners urge. But even 
were this so, one could not expect federal district judges, 
in the exercise of their discretion over injunctive process, 
to allow that more intrusive remedy in situations which this 
Court has been unwilling to rectify by removal.

Finally, there remains federal habeas corpus. 28 U. S. C. 
§2241(c)(3) (1964). Postconviction habeas within the 
principles of Townsend v. Sain, 372 U. S. 293 (1963), 
has all the defects of direct review, plus a further delay 
of some months or years. Sentences in civil rights cases 
are burdensome, but they are not so extended as to make 
postconviction habeas a realistic remedy. See the simple



10

device employed by the prosecution in Dresner v. Stouta- 
mire, 5th Cir., No. 21802, August 5, 1964, to emasculate 
federal jurisdiction, described in Amsterdam, supra, at 841 
n. 192. Pretrial federal habeas corpus might in many in­
stances be an effective remedy, and the terms and history 
of that statute seem rather plainly to make it available to 
state court defendants in the position of petitioners and the 
removants in Peacock. Id., at 908. However, this Court’s 
denial of certiorari in Hillegas v. Sams, 383 U. S. 928 
(1966), has aborted that method of federal judicial relief. 
The Court did not reach the merits of the case, but its 
refusal to review has meant that the stays required to 
bring another such test habeas corpus proceeding here are 
unavailable. In habeas corpus as well as removal, federal 
courts are now disempowered to afford effective protection 
for violation of federal equal civil rights.



11

CONCLUSION

For the foregoing reasons, petitioners request that 
the Court grant rehearing and reverse the judgments 
below.

Respectfully submitted,

Jack Greenberg

James M. N abrit, III
Charles H. Jones, Jr.
Charles Stephen R alston

M elvyn Zarr

10 Columbus Circle 
New York, New York 10019

S. W . T ucker

H enry L. M arsh, III 
214 East Clay Street 
Richmond, Virginia 23219

George E. A llen

1809 Staples Mill Road 
Richmond, Virginia

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pa. 19104

Attorneys for Petitioners



12

CERTIFICATE

I, Charles S tephen R alston, a member of the Bar of 
this Court and counsel for petitioners herein, hereby certify 
that the foregoing Petition for Rehearing is presented in 
good faith and not for purposes of delay.

Attorney for Petitioners