Fleming v. Moore Brief Amici Curiae in Support of Petition for Certiorari to the US Court of Appeals for the Fourth Circuit

    No.

In the

Batprme Qkmrt of flic IfntU'fi Bfateo
October Term, 1988

James N. Fleming,
Petitioner,

—v.—

W. Bedford Moore, III, et al.,

Respondents.

BRIEF OF THE CENTER FOR 
CONSTITUTIONAL RIGHTS, ET AL.,

A M IC I CURIAE  IN SUPPORT OF PETITION FOR 
CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FOURTH CIRCUIT

Stephanie Y. Moore 
Arthur Kinoy*
Center for Constitutional Rights 
666 Broadway, 7th Floor 
New York, New York 10012
♦Counsel of Record for 

Amici Curiae



TABLE OF CONTENTS
TABLE OF AUTHORITIES .................   i
MOTION FOR LEAVE
TO FILE AND BRIEF.......    1
PRELIMINARY STATEMENT......    1
ARGUMENT...........................---  7

Part I ........................... 7
Part II .........................  14
Part III ....... ........ ....... . 20

CONCLUSION .........   28



TABLE OF AUTHORITIES
CASES

Baker v. Carr.
369 U.S. 186 (1962).......... 20
Chaves v. Johnson.
230 Va. 112 (1985).................. 5, 14
City of Richmond v. J.A. Croson Co..
___ U.S. ___, 109 S. Ct. 706 ___ (1989)
....... .......... .................. . ........ 12
District of Columbia Court of Appeals v. 
Feldman.
460 U.S. 462 (1983) ............7, 20, 24,

23
District of Columbia v. Carter.
404 U.S. 418 (1973) .............. 18, 19,

26
Fleming v. Moore.
479 U.S. 890, reh'g denied. 479 U.S. 1012 
(1986) ............................... 4
Fleming v. Moore.
780 F.2d 438 (4th Cir. 1985), cert. 
denied. 475 U.S. 1123 (1986)......... 6
Jones v. Alfred Mayer Co..
392 U.S. 409 (1968)........... 15, 26
Lvng v. Northwest Indian Cemetery 
Protective Association.
___ U.S. __ , 108 S. Ct. 1319
(1988) ..................... .... .... 12

i



Monroe v. Pape. 365 U.S. 167
(1961) ....---.......................... 19
Patterson v. McLean Credit Union.
57 U.S.L.W. 4705
(U.S. June 15, 1989) .............. 12, 26
Pennzoll Co. v. Texaco.
481 U.S. 1 (1987) ............. . 24, 24
Powell v. McCormick.
395 U.S. 486 (1969)...............  20, 21
Rooker v. Fidelity Trust Co..
263 U.S. 413 (1923)..............7, 20, 22
Runyon v. McCrary.
427 U.S. 160 (1976)................. . . 27
Texas v. Johnson. 57 U.S.L.W. 4770
(U.S. June 21, 1989)................ . . 7
Wards Cove Packing Co., Inc., v. Atonio.
57 U.S.L.W. 4583
(U.S. June 5, 1988)................. 12

STATUTES
42 U.S.C. § 1983 ............... 6, 17, 19
42 U.S.C. § 1981. .................  26, 27
Ku Klux Klan Act of 1871 ........... 18

CONSTITUTIONAL PROVISIONS 
U.S. Const., Amendment Thirteen .... passim 
U.S. Const., Amendment Fourteen .... passim

ii



OTHER AUTHORITIES
H. Cruse, Plural But Ecruai
(1987)  28, 29
The Kerner Report Updated, Report of the 
1988 Commission on the Cities, Race and 
Poverty in the United States Today (February 27-29, 1988)................. 10
Kinoy, The Constitutional Right of Negro 
Freedom Revisited: Some First Thoughts
on Jones v. Alfred H. Mayer Company 22 Rutgers L.Rev. 537
(1968) . .............     15, 27
One-Third of a Nation: A Report of the 
Commission On Minority Participation In 
Education and American Life
(May 1988)............... .... ..... 9, 10
Petition for Certiorari and Appendix 
...................  5, 6, 7, 20, passim
The State of Black America: A Report
by the National Urban League
(January 1989)    9, 10
tenBroek, Thirteenth Amendment to the 
Constitution of the United States; 
Consummation to Abolition and Key to the 
Fourteenth Amendment. 39 Calif. L. Rev. 171 
(1951)......................... 15, 16, 17
The Unfinished Agenda on Race in America:
A National Poll Prepared for the NAACP 
Legal Defense and Educational Fund, Inc.By Louis Harris and Associates
(January 1989)........................  9

iii



W. Julius Wilson, The Truly Disadvantaged: 
The Inner City, the Underclass, and Public Policy (1987) ..................... 10

iv



1
MOTION FOR LEAVE TO FILE AND BRIEF OF 
CENTER FOR CONSTITUTIONAL RIGHTS, ET AL. 

AS AMICI CURIAE IN SUPPORT OF PETITION FOR 
CERTIORARI TO THE UNITED STATES COURT OF 

______APPEALS FOR THE FOURTH CIRCUIT______
The Center for Constitutional Rights 

(CCR), on behalf of the undersigned 
organizations, respectfully moves for leave 
to file the attached brief Amici Curiae in 
support of Petitioner James N. Fleming.
CCR was born of the civil rights movement 
and the struggles of Black people in the 
United States for true equality. CCR 
attorneys have been active in cases 
involving voting rights, jury composition, 
community control of schools, fair housing 
and employment discrimination. Through 
litigation and public education, CCR has 
worked to protect and make meaningful the 
constitutional and statutory rights of 
women, Blacks, Puerto Ricans, Native 
Americans and Chicanos.

PRELIMINARY STATEMENT
I am a lover of liberty and freedom of 
opportunity. I cannot stand by and 
see the have-nots oppressed by the no­
growth people who are living off of 
our work. I know that this Country 
did not achieve the highest living 
standard in the world by no-growth or 
by oppression of the working man, and 
yet today the opportunity to improve 
one's living standard is being 
violently opposed by the same people 
who oppose my proposed neighborhood.

James N. Fleming



2

For those, and similar thoughts and 
opinions, James N. Fleming, who is black, 
and a local real estate developer in his 
hometown of Charlottesville, Virginia, has 
been ordered by the Virginia State Supreme 
Court to pay to a white man a libel 
judgment in excess of two-hundred thousand 
dollars. In 1974, Mr. Fleming sought to 
have land in Albermarle County, Virginia 
re-zoned to allow him to develop a low 
cost, racially integrated housing project. 
W. Bedford Moore, III, whose own home is a 
replica of Thomas Jefferson's Monticello 
mansion, became Fleming's chief critic and 
opponent in public hearings before the 
zoning board. In addition to opposing the 
re-zoning, Moore urged that if the project 
was allowed, Mr. Fleming should be required 
to put a 150 foot tree buffer between the 
development and Moore's adjoining



3
residential estate.

After a fourteen month effort to 
proceed with the project, Mr. Fleming took 
out an advertisement in the local 
newspapers. The advertisement, captioned 
"Racism," noted "a great deal of irony" 
that while "Mr. Jefferson even located his 
slaves' quarters down the hill from his 
house, . . . [W. Bedford Moore] does not
want any black people within his sight."

The response by Mr. Moore was a 
million dollar libel suit. Therein, Moore 
alleged that he, "a member of the white 
race," had been "insulted, humiliated, and 
mortified," by Fleming, "a member of the 
black race." In the ensuing ten years of 
litigation, the Virginia Supreme Court 
refused to hear Mr. Fleming's free speech 
arguments under the federal or Virginia 
state constitutions. This Court denied



4
certiorari review to determine whether 
Fleming's advertisement was a 
constitutionally protected expression of 
opinion.1 Thereafter, the state trial 
court awarded a half million dollar 
judgment which was reduced on remittitur to 
$233,000.

While Fleming's case was on appeal in 
the state court system, the Virginia 
Supreme Court rendered a decision in 
another defamation action involving a 
professional dispute between two white 
litigants. In dismissing the action, that 
court held:

The First Amendment to the 
Federal Constitution and article 
1, section 12 of the Constitution 
of Virginia protect the right of 
the people to teach, preach, 
write, or speak any [pure 
expression of] opinion [not 
amounting to 'fighting words'],

1Fleming v. Moore, 479 U.S. 890, reh'q 
denied. 479 U.S. 1012 (1986).



5
however ill-founded, without 
inhibition by actions for libel and slander.̂
The discriminatory judgment against 

Fleming constitutes a resurrection of the 
Virginia General Assembly's enactment of 
1847-48,2 3 and as such brands Fleming with a 
badge and incident of slavery in 
contravention of the Thirteenth Amendment 
to the federal Constitution. At issue here 
is the legitimacy of Mr. Fleming's efforts 
to pursue this claim in the federal courts. 
Dismissing Fleming's claim under 42 U.S.C.

2Chaves v. Johnson. 230 Va. 112, 335 
S.E.2d 97 (1985).

3The Virginia slave code, codified in 
the 1860 Code of Virginia, made criminal 
the "use [of] provoking language or 
menacing gestures to a white person," by a 
"negro" punishable by no more than thirty- 
nine stripes on his or her back to be 
administered in the public square. See 
Petitioner's Appendix ("P.App.") at 98. In 
the instant case, Fleming has, in effect, 
suffered at the hands of the state judiciary a judgment of $6,000 per stripe.



6
§ 1983, the United States district court 
for the Western District of Virginia held 
that it was without subject matter 
jurisdiction to sit in appellate review of 
a state court judgment.4 Ruling on 
Fleming's motion to enjoin or stay that 
decision pending appeal, Judge Widener of 
the Fourth Circuit conceded that the libel 
verdict and judgment of the Virginia 
Supreme Court was "of course" a "badge of 
slavery," see P.App. at 36, but denied the 
requested relief, in part, on the ground 
that Fleming was not likely to prevail on 
his claim that jurisdiction of the district

4District Court order is appended 
hereto. See P.App. at 1, 6-7. Fleming's 
earlier action in federal court similarly 
resulted in dismissal, in part, on the 
ground that the court believed it lacked 
jurisdiction to "relitigate the libel 
issues under [the] circumstances." Fleming 
v. Moore. 780 F.2d 438, 440 (4th Cir.
1985), cert, denied. 475 U.S. 1123 (1986).



7
court was not barred by the Rooker-Feldroan5 
doctrine. Id.

Amicus Curiae respectfully urge and 
implore this Court on behalf of Mr. Fleming 
and all Black Virginians to issue a writ of 
certiorari to determine whether the Rooker- 
Feldman doctrine applies to legitimate 
claims of discrimination arising under the 
Thirteenth and Fourteenth Amendments to the 
Constitution of the United States.

ARGUMENT
I .

Just this term, this Court issued a 
projected "landmark" opinion in Texas v 
Johnson. 57 U.S.L.W. 4770 (U.S. June 21, 
1989), which recognized the right of

5Briefly stated, the Rooker-Feldman 
doctrine bars district court jurisdiction 
to review state court judgments. See 
District of Columbia Court of Appeals v. 
Feldman. 460 U.S. 462 (1983); Rooker v. 
Fidelity Trust Co.. 263 U.S. 4113 (1923).



8
protestors to burn the United States flag. 
While such acts of symbolic expression are 
now properly cloaked with the full 
protection of the Constitution, those 
expressions, such as Fleming's, which seek 
to give substance to the national 
commitment to racial equality, are not so 
protected in the State of Virginia.

Noting the "great conflict waging 
between the haves and the have-nots," in 
1974, Fleming sought through responsible 
leadership to improve the condition of the 
poor and disadvantaged. Those lingering 
conditions and consequent frustrations of 
Blacks in contemporary American society are 
real and well-documented. Particularly in 
the area of economic equality, recent 
studies indicate that the quality of life 
for Blacks in America remains out of sync



9
with mainstream white America.6 Moreover, 
prospects for the future are not 
encouraging. One economist has predicted 
that "it would . . . take another 131 years 
or until the year 2118 to obtain parity

6For example, in 1986, 31.1% of Blacks 
and 27.3% of Latinos had incomes below the 
poverty level —  nearly three times the 
rate for whites. One-Third of a Nation: A 
Report of the Commission On Minority 
Participation In Education and American 
Life 3 (May 1988)[hereinafter "One-Third of 
a Nation"1. In 1989, a National Urban 
League study indicates that Blacks did not 
fair much better. The State of Black 
America 1989 notes that "it is ironic that 
in 1989, the 200th anniversary of the 
adoption of the U.S. Constitution that 
defined blacks as ’three-fifths' of other 
persons, black income is well below 60 
percent of white income, and other 
indicators find blacks at an even greater 
disadvantage." The State of Black America 
4 (January 1989). Notwithstanding the 
gross disparities in income, a study 
commissioned by the NAACP Legal Defense and 
Educational Fund indicates that "the vast 
majority of the persistently poor [and 
mainly minority population] have mainstream 
aspirations for themselves and their 
children." See The Unfinished Agenda on 
Race In America. Executive Summary (January 
1989)[hereinafter "The Unfinished Agenda").



10
[between Blacks and whites] in per capita 
income."7

Twenty years ago, the Kerner 
Commission, in the wake of widespread riots 
in urban ghettos, raised the stark prospect 
of a nation "moving toward two societies, 
one black, one white — ■ separate and 
unequal." The Kerner Report Updated 
further declared, "We must bring the 
problems of race, unemployment, and poverty 
back into the public consciousness, put 
them back on the public agenda."8 Where

7The State of Black America, supra at
11.

8The Kerner Report Updated. Report of 
the 1988 Commission on the Cities. Race and 
Poverty in the United States Today.
National Conference: "The Kerner Report 
Twenty Years Later" (Racine, WI: Johnson 
Foundation Wingspread Conference Center, 
February 27-29, 1988), 16, quoted in One- 
Third of a Nation at 18. See also 
generally W. Julius Wilson, The Truly 
Disadvantaged: The Inner City, the 
Underclass, and Public Policy (University 
of Chicago Press 1987).



11
those problems exist within a state 
judiciary there is no justification to 
forsake curative action.

During the Civil Rights Movement of 
the 1960's millions of Black people risked 
life, limb, and liberty in pursuit of legal 
recognition of their rights. Pursuing 
claims under the Thirteenth and Fourteenth 
Amendments, civil rights lawyers, 
activists, and common folk consistently 
challenged the authority of state courts to 
undermine rights guaranteed by the federal 
Constitution. Today the majority of the 
Court that once courageously extended to 
Black citizens protections comparable to 
those of their white counterparts has 
consistently frustrated, through 
mechanistic legal rulings, concrete efforts 
to devise, promote and enforce policies 
designed to achieve for all Americans



12
meaningful access to the fruits of this 
society.9

Of particular note is this Court's 
decision in City of Richmond v. J.A. Croson
Co. , ___ U.S. , 109 S.Ct. 706 (1989).
In Croson, addressing the "tension between 
the Fourteenth Amendment's guarantee of

9See, e.g., Patterson v. McLean Credit 
Union. 57 U.S.L.W. 4705, 4711 (U.S. June 
15, 1989) (Brennan, J., dissenting) ("What 
the Court declines to snatch away with one 
hand, it takes with the other."); Wards 
Cove Packing Co., Inc.. v. Atonio. 57 
U.S.L.W. 4583, 4593 (U.S. June 5, 1989) 
(Blackmun, J., dissenting) ("One wonders 
whether the majority still believes that 
race discrimination —  or, more accurately, 
race discrimination against nonwhites —  is 
a problem in our society, or even remembers 
that it ever was."); City of Richmond v.
J.A. Croson Co.. ___ U.S. ___, 109 S.Ct.
706, ___ (1989) (Marshall, J. dissenting)
("[T]oday's decision marks a deliberate and 
giant step backward in this Court's 
affirmative action jurisprudence."). In 
recent years, Native Americans have 
similarly suffered major setbacks to time- 
honored rights central to their being. See. 
e.g.. Lvng v. Northwest Indian Cemetery
Protective Ass'n. ___ U.S. ___, 108 S.Ct.1319 (1988).



13
equal treatment to all citizens, and the 
use of race-based measures to ameliorate 
the effects of past discrimination on the 
opportunities enjoyed by members of 
minority groups in our society," this Court 
invalidated the City of Richmond's minority 
business set-aside, holding that there was 
no direct evidence of race discrimination 
by the city to justify its efforts to 
remedy the present effects of past 
discrimination. There the dissenters 
appropriately lauded the "welcome symbol of 
racial progress when the former capital of 
the Confederacy acts forthrightly to 
confront the effects of racial 
discrimination in its midst." Conversely, 
where, as here, the former capital of the 
Confederacy acts forthrightly to resurrect 
and revitalize racial discrimination by 
employing the power of the state judiciary



14
to impose badges and indicia of slavery 
upon its Black citizens, it is incumbent 
upon this Court to accept jurisdiction of 
this action and to declare the right of 
Black Virginians to enforce in federal 
court their fundamental freedom —  equal to 
white Virginians -- "to teach, preach, 
write, or speak any [pure expression of] 
opinion [not amounting to 'fighting 
words'], however ill-founded, without 
inhibition by actions for libel and 
slander."10

II.
With the passage of the Thirteenth 

Amendment, Congress announced not only the 
guarantee of physical liberty for those of 
African descent, but also the eradication 
of the "stamp of inferiority" which had 
theretofore characterized their

10Chaves, 335 S.E.2d at 101-2.



15
existence.11 Intrinsic to this newly- 
recognized right was the freedom of 
individual expression and autonomy. The 
right thus recognized was independent of 
any other right previously guaranteed under 
the Constitution.

Answering the question, "What was the 
'slavery' which the Thirteenth Amendment 
would abolish?" Jacobus tenBroek enumerated 
the three-fold meaning of the word slavery 
as used and understood by the Congress that 
legislated to terminate its existence. 12 
First, tenBroek noted, "[s]lavery in its

11See Kinoy, The Constitutional Right 
of Negro Freedom Revisited: Some First
Thoughts on Jones v. Alfred H. Mayer 
Company, 22 Rutgers L.Rev. 537 (1968); 
Jones v. Alfred Mayer Co.. 392 U.S. 409, 
440 (1968).

12tenBroek, Thirteenth Amendment to 
the Constitution of the United States: 
Consummation to Abolition and Key to the 
Fourteenth Amendment. 39 Calif.L.Rev. 171, 
179 (1951).



16
narrowest and strictest sense —  slavery as 
legally enforceable person servitude — — 
would . . .  be forever 'put down and 
extinguished'" by the Thirteenth 
Amendment.13 Second, recognizing that the 
"free colored person . . . bore all the
burdens, badges and indicia of slavery save 
only the technical one," tenBroek 
maintained that the amendment conferred 
upon all Negroes basic fundamental rights, 
with the guarantee that those rights would 
"receive 'the protection of the 
government,' the protection of 'equal 
laws.'"14 15 The amendment would extend and 
safeguard, among other basic rights, "the 
right to be educated to the 'race imbruted 
by long years of enforced ignorance.'"1^

13Id.
14Id.
15Id. at 180.



17
Finally, recognizing the incidents of 
slavery visited upon white abolitionists, 
the Thirteenth Amendment "would protect 
citizens in their rights under the First 
Amendment and comity clause to freedom of 
speech, freedom of press, freedom of 
religion and freedom of assembly."16 

Section 198317 provides:
Every person who, under 

color of any statute, ordinance, 
regulation, custom, or usage, of 
any State or Territory, subjects, 
or causes to be subjected, any 
citizen of the United States or 
other person within the 
jurisdiction thereof to the 
deprivation of any rights, 
privileges, or immunities secured 
by the Constitution and laws, 
shall be liable to the party 
injured in an action at law, suit 
in equity, or other proper 
proceeding for redress.

The scope and purpose of § 1983 as born out
by historical analysis of its genesis

16Id. 
1742 U.S.C. § 1983.



18
indicate that Congress intended by its 
promulgation to protect those rights 
guaranteed by the Thirteenth Amendment and 
enforced by the Fourteenth Amendment.
Noting that § 1983 derived from § 1 of the 
Ku Klux Klan Act of 1871, this Court in 
District of Columbia v. Carter. 404 U.S.
418 (1973) , observed that "in the final 
analysis, § 1 of the 1871 Act [and 
consequently, § 1983] may be viewed as an 
effort 'to afford a federal right in 
federal courts because, by reason of 
prejudice, passion, neglect, intolerance or 
otherwise, state laws might not be enforced 
and the claims of citizens to the enjoyment 
of rights, privileges, and immunities 
guaranteed by the Fourteenth [and 
Thirteenth] Amendment[s] might be denied by



19
the state agencies."' 18

Fleming's § 1983 action is the classic 
case of non-enforcement "by reason of 
prejudice, passion, neglect, intolerance or 
otherwise" by the state judiciary of the 
equal rights guaranteed him under the 
Thirteenth Amendment. As such, Fleming is 
entitled to seek relief pursuant to the 
original jurisdiction of the federal

18404 U.S. at 428-29 (quoting Monroe 
v. Pape, 365 U.S. 167, 180 (1961)). Carter 
considered the contrast between the reach 
of the Thirteenth and Fourteenth 
Amendments. See id. at 423. Recognizing 
that whereas the Thirteenth Amendment 
constitutes "an 'absolute' bar to all . . . 
discrimination, private as well as public, 
federal as well as state," id. at 422, the 
Court noted that "the commands of the 
Fourteenth Amendment are addressed only to 
the State or to those acting under color of 
its authority." Id. at 423. Nothing in 
Carter, however, limits the applicability 
of § 1983 to rights solely recognized under 
the Fourteenth Amendment. Rather, by its 
own terms, § 1983 extends its protections 
to "any rights, privileges, or immunities 
secured by the Constitution and laws" of 
the United States applicable to the states.



20
courts. Nothing in the decisions of this 
Court in Rooker v. Fidelity Trust Co.. 263 
U.S. 413 (1923), or District of Columbia 
Court of Appeals v. Feldman. 460 U.S. 462 
(1983), speaks to the contrary.

III.
The central question that this Court 

must decide, upon which all others hinge,19 
is whether Fleming's Thirteenth Amendment 
claim satisfies the criteria enunciated in 
Baker v. Carr. 369 U.S. 186 (1962).
Framing the mandate of Baker v. Carr in the 
negative, this Court in Powell v.
McCormick. 395 U.S. 486 (1969), observed 

that a federal district court

19For example, the question whether 
Petitioner is precluded from raising his 
Thirteenth Amendment claim is secondary to 
the question whether the district court has 
jurisdiction to consider the same. Amici 
respectfully submit that Petitioner has 
adequately demonstrated that his claim was not waived and thus, is not precluded. See 
Petition for Certiorari at 41-44.



21
lacks jurisdiction over the 
subject matter (1) if the cause 
does not "arise under" the 
Federal Constitution, laws, or 
treaties (or fall within one of 
the other enumerated categories 
of Art. Ill) ; or (2) if it is not 
a "case or controversy" within 
the meaning of that phrase in 
Art. Ill; or (3) if the cause is 
not one described by any 
jurisdictional statute.20

In affirming the dismissal of Fleming’s
lawsuit for lack of subject matter
jurisdiction, the Fourth Circuit Court of
Appeals did not maintain that these
criteria had not been met. Rather, the
court held, relying upon the Rooker-Feldman
doctrine, "that federal district courts and
federal courts of appeals have no authority
to review a final judgment of a state court
that has acted in its judicial capacity."21
The Fourth Circuit further refused to

20395 U.S. at 512-13.
2 ̂-See P. App. at 8 .



22
recognize an exception to Rooker-Feldman 
where the alleged violation implicates 
fundamental constitutional rights.

Amici respectfully submit that, the 
Fourth Circuit misconstrued both the 
Rooker-Feldman doctrine and the nature of 
the right asserted by Fleming. In Rooker 
the claimant sought district court 
jurisdiction following judgment by the 
state courts which he alleged "was rendered 
in contravention of the contract clause of 
the Constitution . . . and the due process 
of law and equal protection clauses of the 
Fourteenth Amendment . . . in that it gave 
effect to a state statute alleged to be in 
conflict with those clauses and did not 
give effect to a prior decision in the same 
case by the Supreme Court of the State.1,22 
In Feldman, the claimants —  Feldman and 22

22263 U.S. at 414-15.



23
Hickey, two applicants to the District of 
Columbia bar —  sought relief in federal 
court from rulings of the highest court of 
the District refusing to waive an admission 
requirement that Feldman and Hickey 
maintained violated their rights under the 
Fifth Amendment and the federal antitrust 
laws. The district courts in each instance 
dismissed the actions for lack of subject 
matter jurisdiction and this Court 
affirmed.

This Court explained in Feldman that 
"[i]f the constitutional claims presented 
to a United States district judge are 
inextricably intertwined with the merits of 
the judgment rendered by the state court 
"then the district court is in essence 
being called upon to review the state-court 
decision. This the district court may not



24
do."23 Last term in Pennzoil Co. v.
Texaco, 481 U.S. 1 (1987), this Court had 
occasion to expound upon the Rooker-Feldman 
doctrine and the scope of the "inextricably 
intertwined" requirement. Therein, four of 
the Justices expressly rejected the 
argument that Pennzoil's claims24 * were 
barred by that doctrine, finding instead 
that its claim was "'separable from and 
collateral to'" the merits of the state 
court judgment.23

Similarly, Fleming's claims are 
separable from and collateral to the 
underlying judgment of the state court in

23Feldman. 460 U.S. at 483-84, n.16.
24See Petition at 36.
23See Pennzoil. 107 S.Ct. at 1531 

(Brennan, J., concurring); id. at 1529 
(Scalia, J., concurring) (joined by 
O'Connor,J.); id. at 1534 (Blackmun, J., 
concurring); id. at 1536 n.3 (Stevens, J., 
concurring).



25
his case. Specifically, a district court 
need not determine that a state court 
judgment was in a technical sense "wrong" 
to conclude that it independently violates 
fundamental constitutional rights.26 In 
essence, the Rooker-Feldman doctrine 
proscribes federal court appellate review 
of an erroneous state court decision. It 
does not, however, strip federal courts of 
their rightful jurisdiction to redress 
independent violations arising under the 
federal Constitution merely because the 
violation is incidental to a state court

26While on these facts the judgment of 
the Virginia Supreme Court is clearly in 
error, this Court must be mindful of the 
principle cited above. An independent 
comparison of a given state court decision 
with, for instance as here, the 1860 
Virginia Slave Code or subsequent disparate 
decisions involving identical issues 
independently establishes the resurrection 
and imposition of badges and indicia of 
slavery onto Mr. Fleming of which he now 
complains.



26
decision. In other words, whereas there is 
no constitutional right to an error free 
court decision, there is "an 'absolute' bar 
to all . . . discrimination, private as 
well as public, federal as well as 
state,"27 enforceable in the federal 
courts pursuant to their original 
jurisdiction.

Finally, the propriety of district 
court jurisdiction where legitimate 
Thirteenth Amendment violations are alleged 
is reinforced by this Court's decisions 
interpreting the meaning and purpose of 
that amendment. In Patterson v. McLean 
Credit Union. 57 U.S.L.W. 4705 (June 15, 
1989), this Court left intact the 1976

27Pistrict of Columbia v. Carter. 404 
U.S. 418, 422 (1973). See also Jones v. 
Alfred H. Maver Co.. 392 U.S. 409, 424 
(1968) (Congress plainly intended "to 
secure . . .[the] right[s protected by § 
1982] against interference from any source 
whatever, governmental or private").



27
decision of Runvon v. McCrary, 427 U.S. 160 
(1976), which held that the prohibitions 
against racial discrimination contained in 
42 U.S.C. § 1981 extended to private 
parties. Notwithstanding the questions 
raised with respect to the constitutional 
bases for § 1981 and, consequently, its 
scope, it has never been disputed that one 
of the primary objectives of the Thirteenth 
Amendment was to remove legal disabilities 
from African slaves and their descendants. 
Rejection of jurisdiction in the instant 
case will permit the unfettered restoration 
of such disabilities and significantly 
chill the exercise by Black Virginians of 
their federally protected right to 
"universal freedom."28

28See Kinoy, supra note 11, at 537; 
see also Petition for Certiorari at 45-50.



28
CONCLUSION

A Writ of certiorari is necessary in 
this case to reaffirm the national 
commitment to eradicate the vestiges of 
slavery wherever they may arise. If the 
hard won legal principles of the Civil War 
and Civil Rights eras are eliminated as 
viable options to redress racial 
discrimination, the characterization by 
historian Harold Cruse29 of the end of the

29In the introductory page to Plural 
but Equal. Professor Cruse quotes a 
prescient T. Thomas Fortune, the principal 
founder of one of the first national civil 
rights organizations, the National Afro- 
American League:

. . . As the agitation which 
culminated in the abolition of 
African slavery in this country 
covered a period of fifty years, 
so may we expect that before the 
rights conferred upon us by the 
war amendments are fully 
conceded, a full century will 
have passed away, We have undertaken no child's play. We 
have undertaken a serious work 
which will tax and exhaust the



29
1960's as a "civil rights cycle" is indeed, 
and unfortunately, accurate. Cruse 
describes a cycle as a 'course or series of 
events or operations that recurs regularly 
and usually leads back to the starting 
point."30 We have come far and yet not far 
enough in our struggle for racial equality 
to once again encounter the starting point.

For the foregoing reasons, amici 
respectfully urge that a writ of certiorari 
be granted.

best intelligence of the race for 
the next century . . . .

H. Cruse, Plural but Equal (1987).
30Id. at 7.



30
Respectfully submitted,

STEPHANIE YT MOORE 
ARTHUR KINOY*
Center for Constitutional Rights
666 Broadway, 7th Floor 
New York, New York 10012 
(212) 614-6437
* Counsel of Record

Counsel express their appreciation for the 
assistance provided by David P. Dean and 
Deborah A. Powell in the preparation of 
this brief.



IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF VIRGINIA 

CHARLOTTESVILLE DIVISION

JAMES N. FLEMING,
Plaintiff, 

v .

W. BEDFORD MOORE, III, et al.,
Defendants.

)
)
) Civil Action No. 
) 87-0004-C

ORDER
For the reasons stated in the accompanying Memorandum, 

and deeming it just and proper so to do, the Court hereby 
ADJUDGES and ORDERS as follows:

1. Plaintiff's motion to amend his complaint is 
hereby GRANTED.

2. Defendants' motions to dismiss are hereby.GRANTED, 
and this case stands DISMISSED for lack of subject matter juris­
diction.

Let the Clerk send a copy of this Order and the accom­
panying Memorandum to all counsel of^record.

UNITED STATES DISTRICT JUDGE

Date 0 //7

6.1



JOINT STATEMENT OF 
INTEREST OF AMICI CURIAE

The organizations joining in this brief 
amici curiae work in a variety of ways to 
protect and further the civil rights of 
minorities in this country. They share 
the belief that progress toward 
eradicating racism depends in part on a 
clear mandate from the United States 
Supreme Court. They further believe that 
the Court should act to ensure effective 
redress for the violation of Thirteenth 
Amendment rights by granting certiorari in this case.



1

AMICI CURIAE
American-Arab Anti-Discrimination 

Committee
c/o Albert Mokhiber
4201 Connecticut Avenue, Suite 500
Washinton, D.C. 20008
Asian Pacific American LegalCenter of Southern California 
c/o Stewart C. Kwoh, Esq.
1010 South Flower St., Suite 302 
Los Angeles, CA 90015
Association of Latino Attorneys 
P.0 Box 2861 Church Street Sta.
New York, NY 10008-2861
Blacks in Government - Region II 
c/o Merton Simpson 
439 Livingston Ave., Apt 2A 
Albany, NY 12206
Boston Committee for a Just 

Supreme Court 
c/o Daniel Beck 
52 Western Avenue 
Cambridge, MA 02139
Capital District Coalition Against 

Apartheid and Racism 
c/o Anita Thayer 
WALTER, THAYER, LONG & MISHLER 
One Columbia Place 
Albany, New York 12207



2

Center for Constitutional Rights 
666 Broadway, 7th Floor 
New York, New York 10012
Center for Law & Social Justice 

at Medgar Evers College c/o Esmeralda Simmons 
1473 Fulton Street 
Brooklyn, New York 11216
Coalition of Black Trade Unionists Pittsburgh Chapter c/o Leroy Hodge 
201 Roup Ave.
Pittsburgh, PA 15206
Coalition for Lesbian and Gay Rights 
208 West 13th Street 
New York, NY 10011
Fund for Open Information

and Accountability, Inc. c/o Adele Oltman 
P.0 Box 022397 
Brooklyn, NY 11202-0050
LAMBDA Legal Defense &

Educational Fund, Inc.666 Broadway, 12th Floor 
New York, NY 10012
Local 1199, Drug, Hospital &

Health Care Employees 
Union, RWDSU, AFL-CIO 

310 W.43rd Street 
New York, NY 10036



Massachusetts Chapter National Lawyers Guild 
14 Beacon Street 
Boston, MA 02108
Mobilization For Survival 853 Broadway #418 
New York, NY 10003
The Nation Institute 72 Fifth Avenue 
New York, NY 10011
National Conference

of Black Lawyers (NCBL) 126 West 119th Street 
New York, NY 10026
National Lawyers Guild853 Broadway
New York, NY 10003
National Rainbow Coalition 
30 West Washington Blvd. 
Chicago, IL 60602
New Directions for Women 
108 West Palisade Avenue 
Englewood, NJ 07631
Old Dominion Bar Association 
Alfreda T. Harris, President 
506 North Main Street 
Suffolk, VA 23434



4

Puerto Rican Legal Defense & 
Education Fund 

99 Hudson Street 
New York, NY 10013
Southern Arizona Chapter 
National Lawyers Guild 
c/o Paul Gattone 
1422 East Lee 
Tucson, AZ 85719
Virgina State Conference 

of NAACP Branches 
112 E. Clay Street 
Richmond, VA 23219



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