Wallace v. Commonwealth of Virginia Brief in Opposition to Petition for Writ of Certiorari

    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