Lewis v. Collier Brief for Appellant
Public Court Documents
August 31, 1965

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Brief Collection, LDF Court Filings. Lewis v. Collier Brief for Appellant, 1965. 89711d1e-bb9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/8f4a25b7-9907-4cdd-8711-32d118f53fa0/lewis-v-collier-brief-for-appellant. Accessed May 17, 2025.
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Unities S ta ir s (Em irt ai A p p a l s F or the F ifth Circuit No. 22606 I n the A. J. L ewis, -v.- Appellant, Maevine Collier and Carrie Collier, Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI BRIEF FOR APPELLANT Carsis A. H all I I 51/2 North Farish Street Jackson, Mississippi Jack Greenberg Derrick A. Bell, Jr. Mblvyn Zarr 10 Columbus Circle New York, New York 10019 Attorneys for Appellant A nthony G. A msterdam Of Counsel I N D E X PAGE Statement of the C ase........................................................ 1 Specification of E r r o r ........................................................ 4 A bgument : Appellant’s Eemoval Petition Adequately States a Case for Eemoval Under 28 U. S. C. §1443(1) .... 4 Conclusion ................................................................................. 6 T able oe Cases: Hudson v. Leake County School Board, C. A. No. 3382 .. 2 New York v. Galamison, 342 F. 2d 255 (2nd Cir. 1965), cert. den. 380 U. S. 977 (1965) ...................................... 5 Peacock v. City of Greenwood, 5th Cir., No. 21655, June 22, 1965 ................................................................ 2,4,5 Eachel v. Georgia, 342 F. 2d 336 (5th Cir. 1965) ......... 2, 4 Shelley v. Kraemer, 334 U. S. 1 (1948) ........................... 5 Statutes Involved: 28 U. S. C. §1443 .................................................................. 4 28 U. S. C. §1443(1) 4 I n the H m tih ©mart uf Appeals F or the F ifth Circuit No. 22606 A. J. Lewis, — v.~ Appellant, Marvine Collier and Carrie Collier, Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI BRIEF FOR APPELLANT Statement of the Case This is an appeal from an order of United States Dis trict Judge Harold Cox remanding to the Mississippi court from which appellant had removed it a civil action—osten sibly an eviction action—arising out of a campaign of harassment and intimidation designed to, and with the effect of, preserving segregation in the public schools of Leake County, Mississippi and frustrating federal court orders requiring desegregation. 2 On November 6, 1964, appellant filed in the United States District Court for the Southern District of Mississippi his verified petition for removal (R. 2-8). Appellees made no motion to remand, hut the court below remanded ex mero motu, holding “ [t]hat the petition for removal was im- providently filed and is without merit and that this Court has no jurisdiction of this civil suit” (R. 10). Since the case was remanded without hearing on the jurisdictional facts, the factual allegations of the removal petition must be taken as true for purposes of this appeal. Rachel v. Georgia, 342 F. 2d 336 (5th Cir. 1965); Peacock v. City of Greenwood, 5th Cir., No. 21655, June 22, 1965. Those allegations are as follows. •Appellant, a Negro resident of Carthage, Leake County, Mississippi, has lived for some years, together with his wife and four children, at 306 West Mann Street, under an oral month-to-month lease with appellees. In March 1963, a suit was filed in the United States Dis trict Court for the Southern District of Mississippi seek ing desegregation of the public schools of Leake County, Mississippi. Hudson v. Leake County School Board, C. A. No. 3382. After protracted litigation and severe harass ment of the Negro plaintiffs by some elements of the community, the court entered an order on July 6, 1964 requiring the school board to submit a desegregation plan and, on July 29, 1964, approved the Board’s plan calling for the desegregation of the first grade in September, 1964. Prior to the opening of school, appellant, together with many Negro parents who had planned to enroll their chil 3 dren in the desegregated school, were put under severe pressure by employers and creditors not to do so. Only appellant resisted these pressures and enrolled his child, Debora, in the first grade of the previously all-white Carthage School on September 1, 1964. Repercussions immediately followed: 1. On September 2, 1964, appellant was fired from his job at a Carthage lumber company; 2. Appellant was the object of threats of violence suffi ciently serious to necessitate a request for an investigation by federal authorities; 3. On October 20, 1964, appellant received a letter from appellees demanding that he vacate the premises by Octo ber 25, 1964.1.................. On November 3, 1964, appellant was served a summons to appear in the Justice of the Peace Court, Carthage, Mississippi, on November 6, 1964, to defend an eviction ac tion brought by appellees. Appellant’s petition for removal was thereupon filed, prior to the time of trial. Judge Cox’s remand order was, entered on April 29, 1964 (R. 10); notice of appeal was timely filed May 7, 1964 (R. 11). 1 Appellant had earlier been assured by Mr. Collier (who is the only Negro policeman in the City of Carthage) that no effort would be made to force, him out, but by October 17, 1964, Mrs. Collier had informed appellant that his continued occupancy of the premises was endangering appellees’ welfare. 4 Specification of Error The court below erred in holding that appellant’s peti tion for removal did not state a removable case under 28 U. S. C. §1443. A R G U M E N T Appellant’ s Removal Petition Adequately States a Case for Removal Under 28 U. S. C. § 1 4 4 3 (1 ) . Appellant alleged in his petition for removal the fol lowing (R. 4-5): The eviction action against [appellant] is carried on with the sole purpose and effect of harassing [appellant] and punishing him for attempting to ex ercise his right to have his daughter attend a de segregated public school, pursuant to orders of [the United States District Court for the Southern Dis trict of Mississippi] and the requirements of the Four teenth Amendment to the Constitution of the United States. [Appellees’] eviction action is designed to frus trate [the] Court’s orders of July 6 and July 29, 1964 for, due to community sentiment and pressures, it is unlikely that [appellant] will be able to establish an other residence in Carthage. The sufficiency of this allegation to confer jurisdiction on the court below is clearly established by Peacock v. City of Greenwood, 5th Cir., No. 21655, June 22, 1965.2 2 Federal rules of notice type pleading are applicable to peti tions for removal. Peacock; Rachel v. Georgia, 342 F. 2d 336 (5th Cir. 1965). Thus, “bare bones” allegations are sufficient, “unless there is patently no substance in [them]” (342 F. 2d at 340). 5 Appellant relies upon the equal protection clause of the Fourteenth Amendment, which is clearly a “ law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof.” Peacock; New York v. Galamison, 342 F. 2d 255 (2nd Cir. 1965), cert, den. 380 U. S. 977 (1965). In Peacock, the Court held sufficient an allegation that the removed action was being employed to thwart the re moval petitioners’ efforts to assist Negroes to register to vote; Peacock clearly controls a case in which the removed action is employed to thwart the efforts of removal peti tioners to enroll their children in a desegregated public school pursuant to federal court order. The fact that Peacock involved a criminal prosecution rather than a civil action, as here, is a difference without a distinction. No distinction is made in the removal statute itself. And the fact that appellees are “ private” persons does not alter the conclusion that enforcement by a state court of a plan to harass and intimidate those seeking de segregation of public schools is a denial of equal protec tion of the laws. Shelley v. Kraemer, 334 U. S. 1 (1948). Appellant concedes, as he must, that “ [o ]f course, such allegations must be proved if they are challenged” (Pea cock, slip op. p. 10). Appellant merely seeks the oppor tunity to prove that the action against him is part and parcel of a plan to harass and intimidate those seeking to desegregate the public schools of Leake County pursuant to federal court order. 6 CONCLUSION For the foregoing reasons, the order of the district court remanding appellant’s case should be reversed. Respectfully submitted, Carsie A. H all 115% North Farish Street Jackson, Mississippi Jack Greenberg Derrick A. Bell, Jr. Melvyn Zarr 10 Columbus Circle New York, New York 10019 Attorneys for Appellant A nthony G. A msterdam Of Counsel 7 CERTIFICATE OF SERVICE I hereby certify that on August , 1965, I served a copy of the foregoing Brief for Appellant on appellees Marvine and Carrie Collier, 308 West Mann St., Carthage, Mississippi, by mailing same to them by United States registered mail, postage prepaid. Attorney for Appellant