Georgia v. Rachel Oral Argument Transcription Oral Argument Transcription

    In The

SUPREME COURT OF THE UNITED STATES
OCTCBKR TEEM, 1965

Washington, D. C.

’.QRGIA,
Petitioner,

vs.
' OMAS RACHEL,, ET A L . ,

Respondents

A p r i l  2-3, 1966

No. 147

W A R D  & P A U L
OFFICIAL REPORTERS 

917  G STREET, N. W. 

Washington, D. C. 20001
( 4266  
) 4267  

628 ' ) 4268  
( 4269



Mills ws C O M T S W T S

ARGUMENT ON B3I&L.7 OP THE STATE OF GEORGIA 
By Mr. George K 4 McPherson



Mills ().} 
Vi s  1

1
IN THE fJUPREME COURT OP THE UNITED STATES 

OCTOBER TERM., 1965
~ - “X

GEORGIA -
Pet i t i o n e r ,

VS ;
THOMAS RACHEL, et al.

Respondents»
-

No. 147

Washington, D. C . t 
Monday, April 25, 1966.

The above-entitled matter came on for oral argument at 
2:15 o ’clock p„m.,

PRESENT:
The Chief Justice Earl Warren, and Associate Justices 

Black, Douglas, Clark, Harlan, Brennan, Stewart, White and 
PortaSo

APPEARANCES:
On behalf of the petitioner:

George K, McPherson, Atlanta, Georgia



2

P R O C E E D I W G S
THE CHIEF JUSTICE: No. 147, State of Georgia,

petitioner,, vs. Thomas Rachel, et al.
Mr. McPherson.

ARGUMENT ON BEHALF OF THE STATE OF GEORGIA
i BY MR, GEORGE K. MC PHEREON, ASSISTANT

SOLICITOR GENERAL, ATLANTA JUDICIAL CIRCUIT
MR. MC PHERSON: Mr. Chief Justice, Members of the

Court. The facts in this case are as follows.
On August 2, 1963, a grand jury of Fulton County 

Superior Court in Atlanta, Georgia, indicted the defendant,
Thomas Rachel, and 19 other defendants in separate indictments 
for violation of a Georgia law making it a misdemeanor to fail 
and refuse to leave the premises of another after having been 
requested to leave by the person in charge of the premises.

The incident for which the defendants were indicted 
occurred on the 17th of June, 1963, when the defendant, attempting 
to be seated and served in Leb’s Restaurant, in Atlanta, Georgia( 
failed and refused to leave the restaurant after having been 
asked to do so by the manager of the restaurant.

The indictment against the other 19 defendants 
contained identical allegations to the original indictment 
with the exception that in some instances the misdemeanor was 
alleged to have been committed on another date and at a
different restaurant



3
On February 17, 1964, the defendant, Rachel, and 

the other 19 defendants filed a Petition for Removal in the 
United States District Court for the Northern District of 
Georgia under the authority of section 1443(1}(2) and 1446,
Title 28 U„ S„ C ,

This petition alleged that Georgia was by statute 
perpetuating customs and serving members of the Negro race in 
places of public accommodation on a racially discriminatory 
basis and on terms and conditions not imposed on the white 
race, Also, that they were being prosecuted for acts done under 
color of authority derived from the Constitution and laws of the 
United States and for refusing to do an act inconsistent there­
with.

On February 18, 1964 United States District Judge 
Boyd Sloan remanded the cases to Fulton County Superior Court 
stating that the petition for removal failed to allege sufficient 
facts for .removal of the case to the federal court system.

On March 5, 1964, the defendants filed a Nocice of 
Appeal from the remand order to the Fifth Circuit Court of 
Appeals.

On 12 March, the State of Georgia filed a motion to 
dismiss the appeal, and the defendants filed a motion to stay 
the remand order pending the appeal of the Fifth Circuit,

On that day a hearing was held before a three-judge 
panel and the stay was granted by a two-to**one decision of the



court.
On the fifth of March, 1965, after hearing oral argument, 

the Court of Appealsg by a divided three-judge panel, reversed 
the judgment of the District Court and remanded the case to the 
District Court with instructions t.o hold a hearing and to dismiss: 
the prosecution if it established that the removal of the 
defendants from the various places of public accommodation v/as 
done for racially discriminatory reasons.

A timely petition was filed by the State of Georgia 
for a rehearing en banc, and this was denied on April 19. 1965.. 
and this Court granted certiorari on October 11, 1965 on three 
grounds, which we are concerned with here.

First, the Court of Appeals has no jurisdiction to 
consider the appeal because notice of appeal of the remand 
order was filed six days beyond the ten day time limit required 
by Rule 37 (a) (2) of the Federal Rules of Criminal procedure.

Secondly, that petition for removal failed to allc?ge 
sufficient facts or valid grounds for removing state prosecution 
to the federal court.

Third, the Court of Appeals erred in directing 
the District Court to look for only one criterion on the hearing 
and to dismiss the state court prosecution if that single 
element was found. That element, of course, is that the arrest 
and removal of the defendants from the various restaurants in 
Atlanta, Georgia, was done because of race discrimination,,



If it please the Court,. I would like to limit myself 
only to the first consideration, that being the rule of criminal 
procedure, 37((a)<2}„ and leave the latter two cases to Mr. 
Sparks, my co-counsel.

It is our contention that Rule 37(a)(2), of the 
Federal Rules of Criminal procedure, applies to this case, and 
applies to all appeals from criminal prosecution, either before 
a verdict ox- after- verdict.

By Act of February 24, 1933, as amended, this Court 
was given the authority to prescribe rules of practice and 
procedure after verdict, finding of guilt by the Court if the 
jury was waived or plea of guilty.

On May 7, 1934, pursuant to the above Act, this 
Court promulgated 13 rules which they entitled ’’Rules of 
practice And procedure After Plea of Guilty, Verdict Of Guilty. 
Or Finding Of Guilty”.

Rule III of these rules, which is the predecessor 
to Rule 37(a)(2) stated that an appeal must be taken five 
days after entry of judgment of conviction.

Wow, I call to the Court’s attention the language 
’’entry of judgment of conviction”s because I believe by the use 
of this language and by the title of the 13 rules, it is clear 
that these 13 rules apply only to after verdict appeals.

By Act of June 29g 1940, Congress gave the Court 
authority to prescribe rules of practice in criminal cases prior



6
to and including verdict, finding of guilty or not guilty by 
the Court. This Act required that these rules be reported to 
Congress before they became effective and pursuant to this Act 
this Court promulgated Rules 1 through 31 and 40 through 60 of 
the Federal Rules of Criminal procedure by order dated 
December 26, 1944. These rules v/ere submitted to Congress and 
became effective on March 21, 1946, as provided by Rule 59.

By an order dated February 8, 1946, the Court prescribed 
Rules 32 through 39, pursuant to the 1933 Enabling Act, allowing 
the Court to promulgate rules after verdict and pleas of guilty.

The Court made these rules effective on the same date 
that they made Rules 1 through 31 and 40 through 60 effective.

Also by this order, the Court instructed that these 
rules be entitled the Federal Rules of Criminal Procedure, and 
that all 60 rules should be consecutively numbered.

I think that it is clear from this February 8, 1946 
order that the Supreme Court intended that Rules 1 through 60 
should serve as a complete set of criminal rules of procedure.
This was manifested by all the rules becoming effective on 
the same day by the title of the Federal Rules of Criminal 
procedure and also by the fact that the Court had them 
numbered consecutively. Also Rule 1 of the Federal Rules states 
the scope of these rules, and that is that they are to govern 
the procedures in the courts of the United States in all 
criminal procedures except as listed in Rule 54.



It should also be noted that Rule 54 specifically 
applies the Rules of Criminal procedure to removal proceedings, 

Alsc Rule 57 further outlines the purpose of the 
Court in that it states that these rules shall govern all 
criminal proceedings thereafter commenced.

Howy 1 believe that if the Court had intended to 
separate Rules 32 through 39 and 1 through 31 and 40 through 
60 into two separate categoriesf it would not have gone to the 
trouble of numbering the rules consecutively, entitling them 
as they did., and making them effective on the same day.

Also it seems to me that these rules were prepared 
by an advisory committee appointed by the Supreme Court, And 
so we cannot say that this is a case where the left hand did 
nor know what the right hand was doing.

The Court would have made it explicit in separating 
the two rules if they were to retain the before verdict and 
after verdict limitations.

How,, I submit if a distinction ever existed as to the 
applications of Rules 32 through 39 to limit that only to 
after verdict appeals., that this has been reconciled by the 
enactment of Title 18 of the United States Code,

This Act was entitled "An Act to revise., codify and 
enact into positive lav; title 18 of the United States Code.1 
All SO rules of criminal procedure are embodied within this 
title. Rule 37 (a {2} is specifically incorporated by reference



s
in Section 3732 of that title*

I think it is clear, aa i said before, by the title of 
the rules, by them being numbered consecutively, and by them 
being enacted to take effect on the same day, that the Court 
intended that these rules would cover all criminal proceedings.

1 think that the preface of title 18, which states 
that title 18 was the culmination of several years' work, and 
that every provision has been brought down to date, and the laws 
have been rearranged and language modernized and simplified, 
and that many provisions were combined and overlapping eliminated —  

I think it is clear that the revisals undoubtedly realize what 
the purpose of the Supreme Court and the intention of the 
Supreme Court was in promulgating Rules 1 through 60? and I 
think that the enactment of title 18, which incorporates the 
entire set of 60 Rules of Federal Criminal Procedure is an 
acceptance by Congress of that Court’s intention.

Furthermore, I suggest to the Court that Rule 3 of the 
old rules, limits appeal to five days after entry of judgment of 
conviction, and comparing it with Rule 37 (a) (2} , which- allows 
ten days for appeal after entry of judgment or order appealed 
from, further manifests the intention of the Court.

Entry of judgment of conviction clearly purports that 
these rules were to apply to after verdict appeals. However, by 
changing the language and deleting judgment of conviction to 
judgment or order to appeal from, they have removed the



9
language of limitation, and I believe have opened the rules 
to a wider scope than what they had under old Rule 3.

Furthermore, 37(a)(2) provides that the United States 
has a right to appeal as authorized by the statute., and that that 
appeal must be taken within 30 days after the entry of order 
or judgment appealed from.

Wow,, the government has authorized a right to appeal, 
(1} on a decision or judgment setting aside or dismissing any 
indictment? (2) on a judgment setting aside a conviction because 
of insufficiency of the indictment? and (3} where the defendant 
has not been put into jeopardy, and a decision sustained a 
motion in bar.

Wow, 1 and 3 of these situations are before verdict 
appeals. Only No, 2 is an after verdict appeal.

Also 18 L ,S.C. 1404 allows before verdict appeals 
on motions to suppress evidence in certain narcotics cases and 
Internal Revenue esses.

In fact, I believe that we can say that it i3 the 
rule rather than the exception that if the government has a 
right to appeal, it is in the before verdict circumstances.

Therefore 1 think that by including this language in 
37(a)(2), we have again manifested the Court's intention that 
37 (o) (2) applies both to before verdict appeals and after verdict, 
appeals.

Now, I think it can be argued that 1404 and 3731, which



gives the government the right to appeal, within themselves 
carry a 30-day appeal provision. However, I do not believe 
that this lessens the effect of 37(a) (2). I think chat 37(a)(2) 
can well be viewed as being a backstop or in surance for any 
appellate proceedings that might be given to the government, 
and the fact that 30-day provisions included in 1404 and 37 3.1 
of title 18 does net in any way lessen the effect of 37 (a) (2)„

I \i?ill concede that —  let me 3tace first that the 
Fifth Circuit, in holding that the appeal was timely filed, 
unfortunately did not see fit to state tvhat rule is applicable. 
Therefore I believe v;e have to accept one of two things. Either 
there is no time limit for filing an appeal in this case, or the 
civil rules, Rule 73(a), which would allow 30 days to file, 
has been accepted ?,s being the rule we are concerned with 
here.

I believe that neither of this is true. I think 73(a) 
is clearly not applicable, because it, by its own nature, states 
that it is limited only to a case of a civil nature.

Now, it would come, then, to the alternative that 
there is no time limit for filing appeal.

I donct believe this is true.
The defendants or respondents suggest that mandamus 

is the appropriate method of review in this casea But I do not 
believe that mandamus is the appropriate method here.

I believe that this Court and the Court of Appeals,



has the right to issue mandamus relief under 1651, title 28n
But I don't believe that we should be concerned 

with whether the power exists,-, but whether or not this case 
is an appropriate case for the exercise of chat power.

Traditionallyt mandamus has been used to confine an 
inferior court to an exercise of its lawful jurisdiction, or, 
on the other hand, to compel it to exercise that jurisdiction 
when it is its duty to do so.

In Eiankers Life and Casualty vs. Holland., the District 
Court ordered a severance and transfer of a case because of 
improper venue. And this Court held that mandamus was not the 
proper method of review, because the decision of the lower court 
on a question of lav? decisive of the issue was made in the 
exercise of that court's jurisdiction to decide issues properly 
brought before it.

And its decision, even if erroneous, involves no 
abuse of judicial pov?er„ Therefore it was not reviewable by 
mandamusf but reviewable instead by appeal.

In Roche vsQ Evaporated Milk this Court held that «—  
again, that the lawful exercise of the court’s jurisdiction 
involved no abuse of discretion or usurpation of power„ and 
Roche further set dov?n three points, guidelines which the Court 
should use in determining whether the extraordinary remedy of 
mandamus lies. And these guidelines were <=■« did the trial juJge 
act within his jurisdiction, did his act or omission thwart or



12
attempt to thwart appellate reviews; and third, that mandamus 
could not be used as a substitute for the appellate procedures 
described by statute.

I submit that the case that we have here is exactly 
in point with the Roche case and with Bankers Life and Casualty 
Companys and also with Sx Parte Roe.

What Judge Sloan had done here is to do exactly 
what he was required to* and that is to rule upon the removability 
that was before him. Ee was in a sense exercising his 
jurisdiction and in exercising that jurisdiction he made the? 
decision to remand them back to the State Court* Ee had not 
usurped any of his power. He had not abused any of his 
discretion.

As I say, he has fallen immediately within the guide­
lines of the Roche framework. That is. he has not thwarted 
appellate review, because appellate review has been provided.

1 believe that under 1447 (d) the remand could be 
properly reviewed on appeal. Also the remand could be taken 
up through the State court system., and after going through the 
State court system then come for final review to this Court.

So there has been no thwarting of appellate review 
in that sense.

Furthermore the appeal procedures provided are quite 
adequate, and I think this is well attested to by the numbej: of 
cases that have been cited in petitionercs brief that have been



sl3 brought before this Court and have been decided., such as
Neal vs, Delaware, Smith vs*. Mississippi —  all reached this 
Court via the appeals route through the State court system and 
ultimately in final appeal to this Court.

Therefore I suggest to you gentlemen that 37(a)(2) 
is applicable to this proceeding, and therefore the cases 
should be —  the Court of Appeals should be overruled and the 
remand order of Judge Sloan sustained,, and the cases allowed to 
be sent back to the Fulton County Court.

JUSTICE HARLAN: Is the point that you are now arguing
—  does that arise in the Peacock case?

MR. MC PHERSON: No* this does not. This arises only
in the Rachel case.

JUSTICE B\RLAN: Every issue discussed here is also
developed in the Peacock case.

MR. MC PHERSON: With the exception of the 37(a)(2),
whether or not the appeal is timely brought. But I might add 
chat Judge Boyd Sloan has 81 other cases that are now before 
him in which he ,i3 waiting to rule upon pending the outcome of 
the Rachel case.

THE CHIEF JUSTICE: We will adjourn now,,
(Whereupon,, at 2:30 o 'clock p. argument in the

above-entitled case was recessed until 10 o !clock a. m„f Tuesday 
April 26j, 1966.)