Wallace v. Commonwealth of Virginia Brief in Opposition to Petition for Writ of Certiorari
Public Court Documents
April 26, 1966

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Brief Collection, LDF Court Filings. Wallace v. Commonwealth of Virginia Brief in Opposition to Petition for Writ of Certiorari, 1966. aab91d60-c89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/841f5bcf-09a2-4ac0-9895-e2a3be2d4c94/wallace-v-commonwealth-of-virginia-brief-in-opposition-to-petition-for-writ-of-certiorari. Accessed June 13, 2025.
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IN THE Supreme Court of the United States October Term, 1965 No. 1011 FRED WALLACE, et al., v. Petitioner, COM M ONW EALTH OF VIRGINIA, Respondent. BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Frederick T. Gray Special Counsel for the Commonwealth of Virginia W illiams, M ullen & Christian 1309 State-Planters Bank Building Richmond, Virginia 23219 TABLE OF CONTENTS Page Preliminary Statem en t .............................................................................. 1 Argument ......................................................................................................... 2 C on clusion ....................................................................................................... 14 Certificate of Service................................................................................ 14 TABLE OF CASES Bailey v. Commonwealth, 191 Va. 519, 193 Va. 814 ....................... 9 Baines v. City of Danville, Fourth Circuit, No. 9080 ....................... 3, 8 Clark v. Commonwealth, 167 Va. 472, 189 S.E. 143.......................... 11 Cooper v. State of Alabama, 353 F. 2d 729 ........................................ 7 England v. Louisiana State Board of Medical Examiners, 375 U.S. 411 ............................................................................................. 13 Patton v. Mississippi, 332 U.S. 463, 68 S. Ct. 184, 92 L. ed. 76 ....... 10 Peacock v. City of Greenwood, 347 F. 2d 679 .................................... 2 Rachel v. Georgia, 342 F. 2d 336 ........................................................ 8 United States v. Gugel, 119 F. Supp. 897 ............................................ 6 Virginia v. Rives, 100 U.S. 338 .............................................................. 13 IN THE Supreme Court of the United States October Term, 1965 No. 1011 FRED WALLACE, et al., v. Petitioner, COM M ONW EALTH OF VIRGINIA, Respondent. BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT PRELIMINARY STATEMENT This brief is filed on behalf of the Commonwealth of Virginia in opposition to the granting of the Writ of Cer tiorari prayed for in the petition. The opposition of the Commonwealth is bottomed upon the following general grounds: 1. As to the Wallace Case it is clear that the acts for which prosecution in a state court are sought are not such as were done “ under color of authority derived from any law providing for equal rights” (28 U.S.C. § 1443 [2 ]) . The acts for which Wallace is charged are 2 disorderly conduct, using abusive language, obstructing justice and wounding with intent to maim. If the 14th Amendment or any Civil Rights Act gives a law clerk (not an attorney) the right to curse and abuse police officers and kick his way into the cell block to see his employer’s clients then there is a possibility that the Court of Appeals has erred and its decision should be reviewed. 2. If the Court desires to reverse the doctrine of “ vertical enforceability” sustained in Virginia v. Rives, 100 U.S. 313, 322 and Kentucky v. Powers, 201 U.S. 1 and grounded upon the elementary principle of comity and establish instead a rule of conclusive presumption against the effectiveness of Virginia’s Appellate pro cedures, then certiorari should be granted in the Wal lace case. If, on the other hand, this Court considers the Supreme Court of Appeals of Virginia capable and willing to correct any unfairness which may occur in a trial due to the alleged “ prejudice and animosity” in Prince Edward County then certiorari should not be granted on that allegation. 3. If this Court reads the opinions of the Supreme Court of Appeals of Virginia as approving a practice of limiting the number of Negroes who serve on juries in criminal cases then certiorari should be granted. We submit none of the propositions set forth above should be determined in a manner favorable to the granting of this writ. ARGUMENT Answer To Petitioner’s Reasons For Granting The Writ I Petitioners assert that these cases present many of the same issues presented in Peacock v. City of Greenwood, 347 F.(2) 679, they fail to state what those issues are. 3 They seem to argue under Section I of their brief that since Congress has permitted an appeal from a remand order that it has somehow broadened the scope of removal— though Congress, while recognizing the limitations, did not attempt to broaden the scope. As the United States Court of Appeals for the Fourth Circuit noted in Baines v. City of Danville, 4th Circuit, No. 9080 (See Appendix III of Peti tion for Writ of Certiorari herein) “ There is one final item in the formal legislative history which may be noticed. When the Congress provided in Section 901 of the Civil Rights Act of 1964 for appellate review of orders remanding removed civil rights cases, its attention was drawn to the judicial con struction of the “ cannot enforce” portion of the removal statute. In the Senate and in the House, there were expressions of opinion that the Rives-Powers cases in the Supreme Court were too narrow and that the Supreme Court should or would relax their rule. Those expressions reflect no appreciation of the fact that the reason § 1441(1) was not as useful and available as the Thirty-ninth Congress may have intended was con gressional prohibition of post-conviction removal and not judicial penuriousness in the effectuation of con gressional intention. If a majority of the Congress in 1964 thought the Supreme Court had misinterpreted the predecessors of 28 U.S.C.A. § 1443, it did nothing about it, though attention had been clearly focused on the subject. Minority expressions of an expectation of judicial reconsideration of congressional intent is not the equivalent of congressional redefinition of its inten tion. The absence of the latter is significant.” Beyond that, however, it is obvious that Congress did not intend every criminal case against a member of a minority group, whose rights are protected by the equal protection clause, to be “ per se” removable. 4 This obvious conclusion demands, therefore, that we re view the particular facts to ascertain whether the statute permits removal. Laying aside the jury question for later consideration, we are left with the sole question of whether in the Wallace case {Morris, et al., involves only the jury question) there are sufficient grounds to determine (1) that he cannot enforce in the Courts of Virginia a right under a law providing for equal rights or (2) that he is being prosecuted for an act done under color of authority derived from a law providing for equal rights. The only ground asserted under (1) above is that there is intense prejudice and animosity of public officials and white citizens in Prince Edward County against those advo cating the end of racial discrimination and particularly against the law firm with which Wallace was associated. There is no question in this case about the need for an opportunity for a hearing because the Courts below con sidered “ all well pleaded facts as established.” (See Appen dix to Petition, p. 5a) Assuming the existence of the alleged prejudice, the ques tion remains whether Wallace can “ enforce in the Courts of such State” the equal rights. No hearing is necessary, the Courts below were required to judge whether the Supreme Court of Appeals, if necessary, and the Circuit Court of Greensville County in the first instance would properly protect Wallace’s rights. We submit that no different an swers could have been reached. Under (2) Wallace alleges that he was arrested solely on account of his race and to prevent and interfere with his working in defense of persons arrested for protest demon strations. Herein lies an important aspect of this case. What act was Wallace doing which led to his arrest and which 5 was “ under color of authority derived from any law provid ing for equal rights” ? He was not charged with obstructing traffic while demon strating or with trespass under circumstances that freedom of speech, assembly and petition are involved. This man faces charges of (1) Unlawfully, feloniously and maliciously kicking, hitting, wounding, beating, cutting, illtreating and otherwise injuring J. W. Overton, Jr., a Deputy Sheriff, with in tent to maim, disfigure, disable and kill. (2) Becoming disorderly in a public place by cursing. (3) Cursing and abusing P. F. Gay, a Deputy Sheriff while he was performing his official duties. (4) Becoming disorderly in the Sheriff’s Office. (5) Assaulting P. F. Gay while he was performing his official duties. (6) Cursing and abusing J. W. Overton while he was per forming his official duty. Those are the acts for which the accused is facing prosecu tion in Prince Edward County. What law authorizes any person whomsoever to commit one of these acts? Can it be seriously contended that the law of the United States gives the accused “ color of authority” to curse, abuse, strike, kick and wound law enforcement officers? The petition for removal admits the commission of the acts: “ The said criminal prosecutions are for acts committed by petitioner under color of authority derived from a 6 law providing for equal rights * * *” (Italics supplied). (Petition for Removal, see Appendix of United States Court of Appeals for the Fourth Circuit) Thus petitioner admits that he cursed, abused, struck, kicked and wounded law enforcement officers. He seeks to justify his actions but what law providing for equal rights grants any such right? We are, of course, mindful of the right of one accused of crime to be represented by counsel. If, as accused alleges, he was engaged in the representation of such persons there are adequate lawful means for obtaining access to the client for interview. We know of no law which authorizes an at torney to use “ self-help” and fight his way into the cell block. The accused here shows not a right of his own but rather he seeks to shield himself with the client’s right— the right to be represented by counsel. In the court below petitioner cited the case of United States v. Gugel, 119 F. Supp. 897, as holding that the oper ation of a camera is a lawful act, unless made unlawful by statute, and as such is protected by the Federal Constitution. But does it follow that one who is wrongfully prohibited from taking a picture by a police officer can claim color of author ity of a Federal law if he thereupon assaults the officer? Of course, Due Process Clause protects the accused in the pursuit and learning of his profession. But the acts for which he is being prosecuted are no part of that profession. He is not under indictment or warrant for representing his clients or practicing his profession. He is facing prosecu tion for acts which seem most unbecoming of one who seeks to become a member of the legal profession. If, as accused now contends, he was molested and inter fered with while attempting to attend to his lawful business he knew, or should have known, that there are legal processes 7 by which such molestation and interference could have been abated. If it be held that he had authority to conduct himself as he did, then surely the same authority that is the basis for removal must operate to grant him total immunity from prosecution. If the Due Process Clause authorizes him to curse, hit, kick and wound police officers it is unthinkable that he can be prosecuted in either State or Federal Courts for so doing. Nothing in the recent act of Congress indicates the need for certiorari herein. II Petitioners assert that there in conflict between the Fourth and Fifth Circuit and that, in their words, “ a mere reading of the allegations held sufficient in the Peacock opinion, and in the Fifth Circuit subsequent opinions * * * makes it im mediately apparent that had Walace’s petition for remand been filed in a district court in the Fifth Circuit, it would have been held to state adequate grounds * * * .” (Petition for a Writ of Certiorari, p. 15) We disagree and would cite a statement from Cooper v. State of Alabama, 353 Fed. 2d 729, one of the authorities relied upon here by petitioners, to demonstrate the factual distinction: “ The same common denominator appears in this case as in Rachael, Peacock and Cox, viz.: “ * * * ‘the defendants, as a result of their actions in advocating civil rights, are being prosecuted under statutes, valid on their face, for conduct protected by federal constitutional guarantees or by federal statutes or by both constitutional and statutory guarantees.’ Cox v. State of Louisiana, 5 Cir. 1965, 348, F.2d 750, 754-55.” 8 In the Fifth Circuit cases the conduct for which prosecu tion was sought was constitutionally protected conduct— in this case the conduct is not lawful even though petitioner asserts he resorted to such conduct in his effort to help pro tect the rights of others. Petitioners say further that a conflict exists between the Circuits as to whether the equal protection clause of the Fourteenth Amendment is a “ law providing for equal civil rights.” No decision on that question was reached in this case except by reference to Baines v. City of Danville, supra, and no such decision was necessary since, as we have seen, the acts for which prosecutions are sought here are obviously not protected by the equal protection clause. The next “ conflict” which is alleged to exist is that the Fifth Circuit requires a “ factual inquiry.” No conflict exists with respect to that matter in this case because here the Court assumed the allegation to have been established. In other words, the petition for removal was viewed as though upon a demurrer and ruled to be insufficient even with the allegations established as correct. Finally, the alleged “ serious doctrinal conflict” between the Fourth and Fifth Circuits arising out of Rachel v. Geor gia, 342 F. 2d 336, and the Baines decision as it involves this case arises not out of conflict of law but a basic difference in fact. In Rachel the petitioners were charged with trespass after refusing to leave a place of public accommodations when they were asked to do so because of their race. The Fifth Circuit correctly observed that they were given the right so to act under the Civil Rights Act of 1964, Title II and, therefore, removal was appropriate because state legislation on its face denied the right which the federal act gave. The Fifth Circuit said: 9 “ Under the allegations of the petitions in the present case, these appellants have been denied, because of State legislation, ‘a right under * * * [a] law providing for the equal civil rights of citizens of the United States.’ They are entitled to a federal forum as provided for in 28 U.S.C.A. Sec. 1443(1) in which to prove these alle gations. If the allegations are proved, then the federal court acquires jurisdiction for all purposes. Under normal circumstances the state prosecutions would then proceed in the federal court. Here, however, the finding of the jurisdictional fact immediately brings the Hamm case into play. The same fact determination requires dismissal rather than further prosecution in the District Court. “ Upon remand, therefore, the trial court should give appellants an opportunity to prove the allegations in the removal petition as to the purpose for the arrests and prosecutions, and in the event it is established that the removal of the appellants from the various places of public accommodation was done for racial reasons, then under authority of the Hamm case it would become the duty of the district court to order a dismissal of the prosecutions without further proceedings.” No clearer distinction could be drawn. Certainly, in this case no one would suggest that even if the petitioner proves his case he should be dismissed without further prosecution. On the facts of this case there are no conflicts between the Circuits. Ill The allegation that the highest Court of Virginia sanctions a practice of limiting the number of Negroes on juries was repudiated by the Courts below. That repudiation grew out of the case of Bailey v. Commonwealth, 191 Va. 519, and 193 Va. 814. The first Bailey case resulted in a reversal because the Trial Court refused to receive certain evidence 10 as to discrimination in the selection of jurrors. The Supreme Court of Appeals of Virginia said: “Jurors should be selected as individuals, on the basis of individual qualifications, and not as members of a race. Proportional representation of race is not a constitutional requisite. The Constitution requires only a fair jury, selected without regard to race. ‘An ac cused is entitled to have charges against him con sidered by a jury in the selection of which there has been neither inclusion nor exclusion because of race.’ Cassell v. Texas, 339 U.S. 282, 287, 70 S. Ct. 629, 632, 94 L. ed. 563, 568. ‘But discrimination in this con text means purposeful, systematic non-inclusion because of color.’ The command of the Constitution is ‘that no State purposefully make jury service turn on color.’ ” * * * “ While the ultimate issue was whether there had been discrimination in the selection of the jury for the trial of this defendant, the evidence offered was admissible, though not necessarily conclusive, on that point. Patton v. Mississippi, supra. ‘Since the issue must be whether there has been discrimination in the selection of the jury that has indicted petitioner, it is enough to have direct evidence based on the statements of the jury commissioners in the very case. Discrimination may be proved in other ways than by evidence of long continued unexplained absence of Negroes from many panels.’ Cassell v. Texas, supra, 339 U. S. at p. 290, 70 S. Ct. at p. 633, 94 L. ed.atp.570.” The Court also cited with approval the following state ment from Patton v. Mississippi, 332 U.S. 463, 68 S. Ct. 184, 92 L. ed. 76: “ ‘ It is to be noted at once that the indisputable fact that no Negro had served on a criminal court grand or petit jury for a period of thirty years created a very 11 strong showing that during that period Negroes were systematically excluded from jury service because of race. When such a showing was made, it became a duty of the State to try to justify such an exclusion as having been brought about for some reason other than racial discrimination. The Mississippi Supreme Court did not conclude, the State did not offer any evidence, and in fact did not make any claim, that its officials had abandoned their old jury selection prac tices.’ ” The first Bailey case was decided in 1950. At least 14 years earlier in Clark v. Commonwealth, 167 Va. 472, 189 S.E. 143, the Virginia Court recognized the rule which the ac cused here says it avoids. In the Clark case the Court said: “ The Supreme Court of the United States has settled beyond controversy the proposition that the exclusion of all negroes from the grand jury by which a negro is indicted, or from the petit jury by which he is tried, solely because of their race or color, is a denial of the equal protection of the laws guaranteed to him by the Fourteenth Amendment to the Federal Constitution. Norris v. Alabama, 294 U.S. 587, 589, 55 S. Ct. 579, 79 F. ed. 1074, and cases there cited.” The second Bailey case resulted in an affirmance by the Supreme Court of Appeals of Virginia, the denial of cer tiorari by this Court, the refusal of habeas corpus in the Federal District Court, affirmance by the Fourth Circuit and again a refusal of certiorari here. In other words, every possible Court heard the contentions as to jury selection in Virginia and the record fully justifies the statement of the District Judge here: “ The Court, however, concludes that the case of Bailey v. Commonwealth cannot be cited to establish 12 the proposition that in Virginia improper racial dis crimination in the selection of jurors is permitted. That case must be considered solely upon the facts that were presented in it and upon the concessions made by counsel in argument. It cannot be considered as pre cedent for the proposition that if the defendant es tablishes in Prince Edward County factual racial dis crimination, the Virginia courts will hold as a matter of law that such discrimination is permissible. “ The Court reaches that conclusion not only from reading Bailey, but largely from the case of Bailey v. Smyth in 220 F. 2d 954 (4th Cir. 1955). Of course, as we all know, the petitioner in Bailey v. Smyth was the appellant in Bailey v. Commonwealth. The Court of Appeals for the Fourth Circuit, at 220 F. 2d 955, points out that one of the grounds upon which a writ of habeas corpus was sought was “ that there had been discrimination on the ground of race in the selection of the jury by which he had been tried.” They found that such discrimination had not been established and refused to grant the writ. They went further and held that the issues could be determined from the state record. Therefore, this Court does not see how it can de termine that the case of Bailey v. Commonwealth in 71 S.E. 2d 368 establishes the proposition which coun sel for the petitioner urges upon this Court. To do so, the Court would have to disregard the plain holding of the Court of Appeals for the Fourth Circuit in Bailey v. Smyth, which was based not on the redeter mination of the facts, but on the law.” IV We do not assert that the petitioners have no right to be heard at some stage in a Federal forum. We do submit, how ever, that the District Court in its opinion of April 22, 1964, made the best possible summation of those rights: 13 “ This is not to say that the defendant’s constitutional rights cannot be claimed and finally adjudicated in a federal court. Possibly, the best statement of this right is found in the last paragraph of Virginia v. Rives, 100 U.S. 338: ‘Undoubtedly, if in the progress of a criminal prosecution, as well as in the progress of a civil action, a question arises as to any matter under the Constitution and laws of the United States, upon which the defendant may claim protection, or any benefit in the case, the decision thereon may be reviewed by the Federal judiciary, which can examine the case so far, and so far only, as to determine the correctness of the ruling. If the decision be erroneous in that respect, it may be reversed and a new trial had. Provision for such revision was made in the Twenty-Fifth Section of the Judiciary Act of 1789, and is retained in the Revised Statutes. That great act was penned by Oliver Ellsworth, a member of the convention which framed the Constitution, and one of the early chief justices of this court. It may be said to reflect the views of the founders of the Republic as to the proper relations between the Federal and State courts. It gives to the Federal courts the ultimate decision of Federal questions, without infringing upon the dignity and independence of State courts. By it harmony between them is se cured, the rights of both Federal and State govern ments maintained, and every privilege and immun ity which the accused could assert under either can be enforced.’ Mr. Justice Douglas, concurring in England v. Lou isiana State Board of Medical Examiners, 375 U.S. 411, 434 (1963), restated that proposition: ‘Cases where Negroes are prosecuted and convicted in state courts can find their way expeditiously to this Court provided they present constitutional questions.’ ” 14 CONCLUSION We respectfully submit that the Petition for Writ of Certiorari should be denied. Respectfully submitted, Frederick T. Gray Special Counsel for the Commonwealth of Virginia W illiams, M ullen & C hristian 1309 State-Planters Bank Building Richmond, Virginia 23219 CERTIFICATE OF SERVICE I certify that I have served three copies of the foregoing brief upon Jack Greenberg, Esq.; James M. Nabrit, III, Esq.; Charles H. Jones, Jr., Esq.; Charles Stephen Ralston, Esq.; and Melvyn Zarr, Esq.; at 10 Columbus Circle, New York, N. Y. 10019, also, S. W. Tucker, Esq., and Henry L. Marsh, III, Esq., 214 E. Clay St., Richmond, Va. 23219, also, George E. Allen, Sr., Esq., 1809 Staples Mill Rd., Rich mond, Va., and Anthony G. Amsterdam, Esq., 3400 Chest nut St., Philadelphia, Pa. 19104, by mail this 26th day of April, 1966. Frederick T. Gray