Austin v. Mississippi Brief and Argument for Appellee the State of Mississippi

    No. 22172

IN THE UNITED STATES
COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CHRISTINE AUSTIN, ET AL.,_________ Appellants
v.

STATE OF MISSISSIPPI_________ ___—-Appellee

APPEAL FROM THE UNITED STATES 
DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF MISSISSIPPI

BRIEF AND ARGUMENT FOR APPELLEE 
THE STATE OF MISSISSIPPI

R. L. GOZA
114 West Center Street 
Canton, Mississippi 
Attorney for Appellee



1.

TABLE OF CONTENTS
Page

STATEMENT OF THE CASE _________________  1
POINT TO BE ARGUED _____________________  4
ARGUMENT _______________________________  4
CONCLUSION _________      9

TABLE OF CASE
Anderson v. Tennessee, 228 F. Snpp 207 (DC Tenn 

1964) ___________________   7
Arkansas v. Howard, 218 F. Supp 626 (DC Ark 

1963) ____________________________________  7
Birmingham, City of v. Croskey, 217 F. Supp 947 

(DC Ala 1963) ____________________________  7
Cox v. New Hampshire, 312 U.S. 569 (1940) _____  8
Edwards v. South Carolina, 372 U.S. 299 (1963) ___  7
Gibson v. Mississippi, 165 U.S. 565, 16 S. Ct. 904 __  6
Hague v. CIO, 307 U.S. 496 (1939) _______________ 8
Hat Corp. of America v. United Cap and Millinery 

Workers In t’l Union, 114 F. Supp 890 (D Conn 
1953) ____________________________________  9

Hagewood, Petition of, 200 F. Supp 140 (DC Mich 
1961) ____________________________________  7

Henry v. City of Rock Hill, 376 U.S. 776 (1964) ___  7
Hill v. Commonwealth of Pennsylvania, 183 F. Supp 

126 (DC Pa 1960) _________________________5, 7
Kunz v. New York, 340 U.S. 290 (1950) ___________  8
Lamson v. Superior Court, 12 F. Supp 812 (ND 

Cal 1935) ________________________________  7



ii.

Levi McDonald, In the Matter of, 180 F. Supp 861 
(D Ore 1960) ___________ __________________ 5

Neimotko v. Maryland, 340 U.S. 268 (1950) _______  8
North Carolina v. Alston, 227 F. Supp 887 (DC 

NC 1964) __________________________ _____  7
North Carolina v. Jackson, 135 F. Supp 682 (MD 

NC 1955) ___________________________   6
Rand v. Arkansas, 193 F. Supp 961 (WD Ark 1961) _ 5
Snypp v. Ohio, 70 F. 2d 535 (6th Cir. 1934) ________  7
Van Newkirk v. District Attorney, Richmond Coun­

ty, 213 F. Supp 61 (DC NY 1963) _____________  7
United States v. Wood, 295 F. 2d 772 (5tli Cir. 1961) __ 8 

TABLE OF SECONDARY AUTHORITIES
American Jurisprudence, Vol 45, Removal of Causes, 

Section 109 _______________________________  4
Corpus Juris Secundum, Vol 76, Removal of Causes, 

Section 94 ________________________________  4
Cyc. of Fed. Proc., Vol 2, Section 3.82____________  4
Moore’s Federal Practice, Vol 1A, Section 0.165 ___  4



IN THE UNITED STATESCOURT OF APPEALS
FOR THE FIFTH CIRCUIT 

No. 22172

CHRISTINE AUSTIN, ET AL.,_________Appellants
v.

STATE OF MISSISSIPPI_______________ Appellee

APPEAL FROM THE UNITED STATES 
DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF MISSISSIPPI

BRIEF AND ARGUMENT FOR APPELLEE 
THE STATE OF MISSISSIPPI

STATEMENT OF THE CASE
These are appeals from orders of the United States 

District Court for the Southern District of Mississippi, 
Jackson Division, remanding the criminal prosecutions 
of the appellants to the courts of the State of Mississippi.

On Friday, May 29, 1964, a large number of negroes 
and Caucasians assembled at the Mount Zion Baptist 
Church on West North Street in the City of Canton, 
Mississippi, which is situated some four blocks north­
west of the Madison County Courthouse.

A group of approximately two hundred fifty persons 
left the church and proceeded easterly on West North 
Street in parade formation. They were informed by 
police officers that the group could not parade without 
a permit and that if they did not have one they must



2

disperse. The group then dispersed and went back to 
the church. Thereafter other groups attempted to pa­
rade, and being either unwilling or unable to produce 
a permit therefore, and refusing to disperse into smaller 
groups, were arrested. (R. 33-34) Those persons leav­
ing the church and proceeding to the Courthouse in 
small groups not in parade formation were not arrested 
(R. 35) on at least two occasions. Before any arrest 
were made, the ostensible leaders, were requested to 
cooperate with the police and were fully advised of 
the City’s ordinance and the provisions thereof. (R. 33- 
34) The ordinance under which these appellants were 
arrested is found at page 2a of the statutory appendix 
to appellants brief.

Later on the same day, others of the appellants were 
arrested for obstructing sidewalks and interferring with 
pedestrian and vehicular traffic. Those members of the 
appellants group not so obstructing or interferring were 
not arrested. The statute under which these appellants 
were arrested is shown at la of the statutory appendix 
to appellants brief.

The appellant, McKinley Hamblin, was using obsence 
language in a public place in the presence of and readily 
heard by negro females and small negro children, and 
when requested to cease doing so by a police officer, 
he cursed the officer and called him a white son of a 
bitch, whereupon he was placed under arrest. He then 
began striking the officer. (R. 25)

During the entire day large numbers of colored citizens 
of Madison County did proceed to the Courthouse with­
out incident and were there assembled for the purpose 
of making application to become electors of the County. 
(R. 35)



3

That bond was set for all of those arrested, as soon 
as possible, and that those less than nineteen years of 
age were released to their parents upon request, and 
that one petitioner, Mack Owens, age 86, was released 
on his own recognizance, as was Willie Bennett, a blind 
nineteen year old.

That the attorney for the appellee encouraged appel­
lants attorneys to make bond for the appellants on Mon­
day, June 1, 1964, but that they did not do so. (R. 35)

That trial of the appellants was continued from June 
1, 1964, when the same would have ordinarily been heard, 
until counsel for appellants could file petitions for re­
moval to Federal Court, all pursuant to an agreement 
between attorneys for the appellee and appellants and 
that at appellants attorneys request and in his presence 
all defendants were arraigned on Tuesday, June 2, 1964, 
at 8:00 o’clock A. M., and entered a plea of not guilty, 
which plea was accepted and recorded. (R. 35-36)

On June 11, 1964, appellants filed in the United States 
District Court for the Southern District of Mississippi 
their 51 separate petitions for removal (R. 2-21). On 
July 24, 1964, appellee’s Answer and Motion to Dismiss 
and Remand “ for trial before the Honorable L. S. 
Matthews, Mayor of the City of Canton, Mississippi, 
sitting’ as ex officio Justice of the Peace” (R. 23) was 
filed (R. 23-26). The Answer challenged the sufficiency 
of the removal petitions on their faces (R. 24), admitted 
some of the allegations of the petitions, and denied 
others (R. 24-26). Affidavits were filed in support of 
the motion to remand (R. 29-30), 33-36) and in opposi­
tion to it (R. la-3a, 7a); thereafter, Judge Cox entered 
his order sustaining the motion and remanding the cases 
“ to the Police Court of the City of Canton, Mississippi” 
(R. 45, 46).



4

The remand orders having been entered October 20, 
1964, (R. 4546), notices of appeal were filed October 
29, 1964 (R. 46-47); subsequently, the appeals were con­
solidated and the remand orders stayed by this court.

POINT TO BE ARGUED

THE PETITIONS FOR REMOVAL FAIL TO 
STATE ANY FACTS UPON WHICH TO REMOVE 
THESE CASES UNDER 28 'USC SECTION 1443, 
AND THE APPELLANTS FAILED TO MEET 
THE BURDEN OF PROOF TO SHOW THAT THE 
CASES WERE PROPERLY REMOVED.

ARGUMENT

It is the contention of the appellee, that the laws 
of the State of Mississippi and the ordinance of the 
City of Canton, Mississippi, under which the appellants 
were charged and arrested are valid enactments by the 
respective legislative bodies, and do not constitute dis­
crimination against the appellants or deprive them of 
their civil rights, but apply equally to all citizens subject 
to the laws of said City and State. The controlling 
principle is well stated in 2 Cyc. of Fed. Proc. 3.82: 
“ Denials of equal rights resulting from the constitution 
or laws of a state must be distinguished from those 
caused by the acts of judicial or administrative officers. 
The wrong in one case is the direct and necessary result 
of the state law, of its necessary operation proprio 
vigare, while in the other it results from the adminis­
tration of the law. In the former case, the action is 
removable, and in the latter it is not.” See also Moore’s 
Federal Practice, Vol. 1A, Sec. 0.165, page 871, 45 Am 
Jur p. 888 “ Removal of Causes” Sec. 109; and 76 CJS 
“ Removal of Causes” Sec. 94, p. 983.



5

In Hill v. Commonwealth of Pennsylvania 183 F. 
Supp 126, (W.D. Pa. 1960) the petitioner filed petitions 
to remove indictments to federal court on grounds that 
he had been denied a speedy trial, thus being deprived 
of his civil and constitutional rights, thereto, and his 
right to equal protection of the laws and to due process 
of the law. In remanding the case the court said: “ As­
suming, without deciding, that petitioner has been im­
properly deprived of his right to a speedy trial by the 
aforesaid county officials not authorized by the con­
stitution or the laws of the Commonwealth of Pennsyl­
vania, such deprivation does not constitute grounds for 
removal under the statute. The statute does not provide 
for removal for merely erroneous action or decision by 
individual judicial or administrative officials.”

In the matter of Levi McDonald, 180 F. Supp. 861, 
(D. Ore. 1960) the petitioner filed a petition for re­
moval alleging the men purporting to act under au­
thority of the State of Oregon entered his home without 
process of law, seized him, confined him and held him 
in communicado; that he was not served with a copy 
of a warrant of arrest, and not taken before any magis­
trate; that although he demanded to know the nature 
and cause of the accusations against him, his demands 
were refused; and that he was denied the right to bail. 
In remanding the court stated: “ We accept the fore­
going averred facts to be true; nevertheless, said peti­
tion fails to state facts or a claim upon which any relief 
can or could be granted, or to give jurisdiction of the 
subject matters of the causes to this court.”

For a comprehensive and well written opinion involv­
ing the question at hand see Rand v. State of Arkansas 
193 F. Supp. 961 (W.D. Ark. 1961) in which the court 
held: “ . . . The petitioner must show a deniel or in-



6

ability to enforce Ms civil rights which results from the 
constitution or laws of the state, and it is only when 
such hostile state constitutional provisions or state leg­
islation exist which interfere with the parties right to 
defense that he can have the case removed to federal 
court. ’ ’

See also: State of North Carolina v. Jackson 135 
F. Supp. 682 (M. D. N. C. 1955) where the petitioner 
filed a petition to remove criminal prosecution against 
him for violating North Carolina statute requiring sep­
aration of races on buses, alleging that he could not 
get a fair trial. “ It is not every case where some con­
stitutional question may be involved that was intended 
to be covered by the removal section dealing with civil 
rights.” “ To grant a removal in every case where an 
alleged civil right may be, either directly or indirectly, 
affected under a statute that is penal in nature would 
virtually require the federal court to have to pass on 
the constitutionality of a state statute before the state 
Supreme Court has done so.”

Gibson v. State of Mississippi 165 U. S. 565, 585, 16 
S. Ct. 904, at page 908, 40 L. Ed. 1075, states as fol­
lows : “ It is not every denial by a state enactment of 
rights secured by the constitution or laws of the United 
States that is embraced by Section 641 of the revised 
Statutes. The right of removal given by that section 
exists only in the special cases mentioned in it. Whether 
a particular statute, which does not discriminate against 
a class of citizens in respect of their civil rights is ap­
plicable to a pending criminal prosecution in a state 
court, is a question, in the first instance, for determina­
tion of that court; and its right and duty to finally 
determine such a question cannot be interferred with 
by removing the prosecution from a state court, except



7

in those cases which, by express enactment of Congress 
may be removed for trial into the courts of the United 
States.”

Other cases in line with the foregoing are: Snypp 
v. State of Ohio 70 F. 2d 535 (6th Cir. 1934); Lamson 
v. Superior Court 12 F. Supp. 812; (N. D. Cal. 1935); 
Anderson v. State of Tennessee, 228 F. Supp. 207, (D. C. 
Tenn. 1964); State of North Carolina v. Alston 227 F. 
Supp. 887, (D. C. N. C. 1964) ; State of Arkansas v. 
Howard, 218 F. Supp. 626 (D. C. Ark. 1963) ; Van Neiv- 
kirk v. District Attorney, Richmond County 213 F. Supp. 
61 (D. C. N. Y. 1963); Hill v. Commonwealth of Penn­
sylvania 183 F. Supp. 126 (D. C. Pa. 1960) ; Petition of 
Hagewood, 200 F. Supp. 140 (D. C. Mich. 1961) ; City 
of Birmingham, Alabama v. Croskey 217 F. Supp. 947 
(D. C. Ala. 1963).

The appellee respectfully submits that the conduct and 
activities of the appellants, and particularly of the ap­
pellant, McKinley Hammond, do not come with the 
purview of Edwards v. South Carolina, 372 IT. S. 299 
(1963) or Henry v. City of Rock Hill 376 U. S. 776 (1964) 
cited by the appellants in support of their contentions. 
In Edwards, supra, the Court stated: “ We do not re­
view in this case criminal convictions resulting from 
the even handed application of a precise and narrowly 
drawn regulatory statute evincing a legislative judg­
ment that certain specific conduct be limited or prescrib­
ed. If for example, the petitioners had been convicted 
upon evidence that they had violated a law regulating 
traffic or................... this would be a different case.”

In the instant cases, all of the appellants were ar­
rested for committing acts in violation of legislative 
enactments adopted for the purpose of preventing in-



8

terference with and obstruction of vehicular and pedes­
trian traffic.

It is further submitted that the right of the City of 
Canton and State of Mississippi to legislate in regu­
lation of such matters was established under similar 
circumstances by Cox v. New Hamphire, 312 U. S. 569 
(1940) in which the court distinguished the facts and 
enactments in Hague v. Committee for Industrial Or­
ganizations, 307 U. S. 496 (1939). It should be noted 
that the court in the later cases of Neimotho v. Maryland, 
340 U. S. 268 (1950) and Kunz v. New York, 340 U. S. 
290 (1950), cited Cox, supra, with approval, but dis­
tinguished it on the facts involved.

There is absolutely no evidence or allegation that 
either the statute or the ordinance of the City of Canton 
was applied arbitrarily or in a manner which discrimi­
nated against the appellants. In fact the proof shows 
that none of the appellants applied for a permit to 
parade and that the appellants were not denied the 
same. (R. 29)

It is noted that the appellants cite United States 
v. Wood, 295 F. 2d 772 (5th Cir. 1961) in support of 
the contention that “ those appellants who sought to 
support others attempting to register are also protected 
by 42 USC Section 1971.” It is submitted that Wood, 
supra, is not authority for this proposition, since the 
court in reversing the District Court’s dismissal of the 
petition to enjoin Walthall County from prosecuting one 
Hardy, stated “ Hardy is not qualified to register to 
vote in Walthall County and the Government does not 
seek to assert Hardy’s rights under Section 1971.”

In each case, the appellee has filed a motion to re­
mand and a sworn answer to the petition which appellee



9

contends places the burden of proving the allegations 
upon which the bases for removal is founded on the 
appellants. See also: Moore’s Federal Practice Yol. 
1A, Sec. 0. 168 (4-1) page 1346; and Hat Corp of 
America v. United Hatters Cap & Millinery Workers 
Int’l Union, 114 F. Supp. 890 (D. Conn. 1953).

Further, the appellants acting by and through their 
attorneys of record, agreed to submit the issue an the 
motion to remand on the pleadings, affidavits and oral 
argument. They did not produce, offer to produce or 
request permission to produce testimony or other evi­
dence to support the allegations contained in the pe­
tition for removal and denied by the appellee’s answer. 
The appellants wholly failed to meet the burden of 
proof which was upon them.

CONCLUSION
In view of the foregoing it is urged that the petitions 

do not set forth sufficient facts justifying removal to 
United States District Court, and that the appellants 
wholly failed to meet the burden of proof at the hearing- 
before the United States District Judge on the plead­
ings, affidavits and oral argument. It is respectfully 
submitted that the order remanding the appellants cases 
should be affirmed.

Respectfully submitted,
R. L. GOZA

114 West Center Street 
Canton, Mississippi
Attorneys for the Appellee



10

CERTIFICATE OF SERVICE

THIS IS TO CERTIFY that on the_________ day
of September, I the undersigned Attorney of Record 
for the State of Mississippi, served a copy of the fore­
going Brief and Argument for the Appellee, upon Carsie 
Hall, by mailing a copy thereof to him at 115 1/2 N. 
Farish Street, Jackson, Mississippi, 39201; and upon 
Jack Greenberg and Melvin Zarr by mailing a copy 
to each of them at 10 Columbus Circle, New York, 
New York 10019; and upon Anthony G. Amsterdam 
by mailing a copy to him at 3400 Chestnut Street, Phila­
delphia, Pennsylvania 19104, all by United States Mail, 
first class postage fully prepaid.

Attorney for Appellee