McGee v. City of Meridian, Mississippi Joint Supplemental Brief for Appellants

    Isr th e

Int&it (Emsrt of Appmlz
F ob th e  F if t h  Circuit

No. 22104 No. 22323
A lbert Q. M cGee,

Appellant,
M arie Gertge,

Appellant,
— v.—

City  of Meridian, M ississippi,
Appellee.

City  op Clarksdale, M ississippi,
Appellee.

No. 22172 No. 22233
Christine A ustin , et al.,

Appellants,
C. 0. Ch in n ,

Appellant,
— v.—

State op M ississippi,
Appellee.

State op M ississippi,
Appellee.

No. 22312 
J oe B. Sm ith ,

Appellant,

No. 22876 
E lvira Gbandison,

Appellant,
■— v.—

City  op D rew , M ississippi,
Appellee.

State op M ississippi,
Appellee.

No. 22741
E ddie A l ie n ,

Appellant,

State op M ississippi,
Appellee.

A PP E A LS FROM THE U N ITED  STATES DISTRICT COURTS FOR THE 
NORTHERN AND SOUTHERN DISTRICTS OF M ISSISSIPP I

JOINT SUPPLEMENTAL BRIEF FOR APPELLANTS

A L V IN  J. BRONSTEIN 
60S North Farish Street 
Jackson, Mississippi 39203

AN TH O N Y G. AM STERDAM  
i3’400 Chestnut Street 
Philadelphia, Pennsylvania 19104 

Attorneys fo r  Appellants

CARSIE A. H A LL 
H EN RY M. ARONSON

■538% North Farish Street 
Jackson, Mississippi 39202 

R. JESS BROW N
125% North Farish Street 
Jackson, Mississippi 39201 

JA C K  GREENBERG 
M ELVYN  ZARR

10 Columbus Circle 
New York, New York 10019



In the

inttpft Btntw ©mart ni Appeals
F oe the F ifth Circuit

No. 22104 No. 22323
A lbert Q. M cGee,

Appellant,
Marie Gertge,

Appellant,

— v .—

City of M eridian, M ississippi,
Appellee.

No. 22172
Christine A ustin , et al.,

Appellants,

State op M ississippi,
Appellee.

— v.—

C ity of Clarksdale, M ississippi,
Appellee.

No. 22233
C. 0 . Ch in n ,

Appellant,
— v . —

State of M ississippi,
Appellee.

No. 22312 No. 22876
J oe B . Sm ith ,

Appellant,
— v.—

E lvira Grandison,
Appellant,

—v.—
City  of D rew , M ississippi,

Appellee.
State of M ississippi,

Appellee.

No. 22741
E ddie A llen ,

Appellant,
—v.—

State of M ississippi,
Appellee.

A PPE A LS FROM TH E U N ITED  STATES DISTRICT COURTS FOR THE 
NORTHERN AND SOUTHERN DISTRICTS OF M ISSISSIPPI

JOINT SUPPLEMENTAL BRIEF FOR APPELLANTS



2

Judicial decisions and state constitutional amendments 
since the filing of appellants’ briefs in some of these cases 
make a supplemental brief desirable. In addition, because 
the seven cases are set for argument in immediate suc­
cession, and because they raise many common issues, it 
appears that a unified discussion relating the claims urged 
for reversal in the seven cases may be useful to the Court.1 
It is the function of this supplemental brief to organize the 
cases into groups presenting identical questions and to 
state summarily appellants’ position on each question. For 
amplification of the points made, the Court is respectfully 
referred to appellants’ briefs in chief already filed.

All of the cases are appeals from orders of federal 
district courts of Mississippi remanding to the trial courts 
of that State criminal prosecutions which appellants had 
seasonably2 removed pursuant to 28 U. S. C. § 1443 (1964),

1 Appellants’ counsel are presently engaged in securing the agree­
ment of counsel for the several appellees to have these seven cases 
consolidated for argument on April 19, 1966. It is hoped that the 
cases can be argued together in one morning, for the greater con­
venience of the Court. An appropriate motion will subsequently 
be filed.

2 The McGee, Gertge, Grandison and Allen cases were removed 
prior to trial in Mississippi municipal, police or justice courts. 
(These are all non-record courts from which, under Mississippi 
practice, an appeal lies for trial de novo in a court of record.) 
Austin was also removed prior to trial in the municipal court, al­
though Judge Cox found to the contrary, plainly erroneously. See 
Brief for Appellants in Austin, p. 5, para. 3. Smith was removed 
after trial and conviction in the police court, but prior to trial de 
novo on appeal to the circuit court. All of these cases were thus 
timely removed under 28 U. S. C. § 1446(c) (1964) ■ the timeliness 
point raised by the facts in Smith and sought to be raised by the 
erroneous finding in Austin has been settled by the decision in 
Calhoun v. City of Meridian, 355 F. 2d 209 (5th Cir. 1966). The 
Chinn case, prosecuted by indictment, was properly removed prior 
to trial in the circuit court.



3

the civil rights removal statute.* 1 2 3 For the better under­
standing of appellants’ points, the following chronology 
should be charted at the outset:

December 2, 1963:

October 12, 1964: 

October 20, 1964: 

December 23, 1964: 

December 30, 1964: 

January 1, 1965: 

March 5, 1965:

Unnumbered rule of the District 
Court for the Southern District of 
Mississippi regulating removal pro­
ceedings, Appendix I infra, adopted.

Remand order in McGee entered. 
(Southern District.)

Remand order in Austin entered. 
(Southern District.)

Remand order in Gertge entered. 
(Northern District.)

Remand order in Smith entered. 
(Northern District.)

Remand order in Chinn entered. 
(Southern District.)

Rachel v. Georgia, 342 F. 2d 336 
(5th Cir. 1965), decided.

3 § 1443. Civil Rights Cases.
Any of the following civil actions or criminal prosecutions, com­

menced in a State court may be removed by the defendant to the 
district court of the United States for the district and division 
embracing the place wherein it is pending:

(1) Against any person who is denied or cannot enforce in 
the courts of such State a right under any law providing for 
the equal civil rights of citizens of the United States, or of all 
persons within the jurisdiction thereof;

(2) For any act under color of authority derived from any 
law providing for equal rights, or for refusing to do any act
on the ground that it would be inconsistent with such law.



4

April 5, 1965:

June 1, 1965: 

June 12, 1965: 

June 22, 1965:

Unnumbered rule of the District 
Court for the Southern District of 
Mississippi regulating removal pro­
ceedings in criminal cases, Appen­
dix II infra, adopted.4

Demand order in Grandison en­
tered. (Southern District.)

Remand order in Allen entered. 
(Southern District.)

Peacock v. City of Greenwood, 347 
F. 2d 679 (5th Cir. 1965), decided.

I.

In the Smith, Gertge and Allen Appeals, Reversal Is 
Plainly Compelled by Prior Decisions of This Court.

In Peacock v. City of Greenwood, 347 F. 2d 679 (5th Cir. 
1965), cert, granted, 382 U. S. 971 (1966), this Court for 
the first time definitively held that state criminal defen­
dants charged with offenses for conduct in the exercise of 
federally protected free expression to protest racial dis-

4 The portion of this rule pertinent here is as follows:
A  motion to remand shall be noticed and presented within 

ten days after issuance thereof.
After an answer or motion to remand is filed, both parties 

shall have ten days within which to file affidavits in support of 
their respective contentions. The petition, answer and motion 
to remand shall be treated and considered as submitted to the 
Court for its decision thereon, unless otherwise ordered or ex­
tended by the Court.

The previous rule_ of the Southern District, adopted December 2, 
1963, see Appendix I infra, had no provision governing remand 
motion procedure.



5

crimination5 conld remove their prosecutions to federal 
courts under 28 U. S. C. § 1443(1) (1964), although they 
could challenge no state statute or provision of state posi­
tive law as facially unconstitutional. Considering the Su­
preme Court decisions from Virginia v. Rives, 100 U. S. 313 
(1880), to Kentucky v. Powers, 201 U. S. 1 (1906), the Court 
did “not read these cases as establishing that the denial 
of equal civil rights must appear on the face of the state 
constitution or statute rather than in its application where 
the alleged denial of rights . . . had its inception in the 
arrest and charge” (347 F. 2d at 684). Under §1443(1), 
removal was authorized where state statutes, valid on their 
face, were applied unconstitutionally as instruments of 
racial repression. Ibid. Thus, the allegation in Peacock 
“ that the Mississippi statute is being employed to thwart 
their efforts to assist Negroes to register to vote is suffi­
cient to meet this test” (id. at 682). It is the teaching of 
Peacock that whenever removants allege that an otherwise 
valid provision of state law “ is being applied against them 
for purposes of harassment, intimidation, and as an impedi­
ment to their work in the voter registration drive [or, 
presumably, other similar civil rights work or demonstra­
tion]”, id. at 684, these “ allegations are sufficient to prevent 
remand without a hearing” (ibid.).6

5 Rachel v. Georgia, 342 F. 2d 336 (5th Cir. 1965), cert, granted, 
382 U. S. 808 (1965), involved prosecutions barred by the public 
accommodations title of the Civil Rights Act of 1964, and might 
have been controlled by the provisions of the title forbidding pun­
ishment or attempts to punish persons exercising rights under the 
title. See 342 F. 2d at 341; cf. Dilworth v. Riner, 343 F. 2d 226 
(5th Cir. 1965). In Peacock, a picketing case, the Court relied on 
no similar provision of federal law. Cf. Dilworth v. Riner, supra, 
at 232.

6 The holding in Peacock was restated in Cox v. Louisiana, 348 
F. 2d 750 (5th Cir. 1965), as follows: removal is authorized when



6

Peacock has been followed in numerous decisions: Cox 
v. Louisiana, 348 F. 2d 750 (5th Cir. 1965); McNair v.
City of Drew, 351 F. 2d 498 (5th Cir. 1965); Wechsler v. 
County of Gadsden, 351 F. 2d 311 (5th Cir. 1965); Car­
michael v. City of Greenwood, 352 F. 2d 86 (5th Cir. 1965); 
Rogers v. City of Tuscaloosa, 353 F. 2d 78 (5th Cir. 1965); 
Cooper v. Alabama, 353 F. 2d 729 (1965); Calhoun v. City 
of Meridian, 355 F. 2d 209 (5th Cir. 1966); Brown v. City C 
of Meridian, 5th Cir. No. 21991 (decided January 26, 1966). 
Reference to the last cited case suffices to dispose of the 
Gertge, Smith and Allen cases, for the allegations here are 
indistinguishable from those paraphrased in the Court’s 
Brown opinion and there held sufficient to preclude remand 
without a hearing.

Gertge, a voter registration worker (Gertge R. 2, para. 
Y) prosecuted for taking a photograph in city hall without 
the permission of the mayor (id., 1-2, para. II), alleged 
that the conduct for which she was prosecuted was federally 
protected by the First, Fourteenth and Fifteenth Amend­
ments (id., 2, 4, paras. II, V III), and that her prosecution

“ 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,” Id. 
at 754-755. Cox was a protest demonstration case in which the 
prosecution’s “ transparent purpose is to harass and punish the 
petitioner for his leadership in the civil rights movement, and to 
deter him and others from exercising rights of free speech and 
assembly in Louisiana—in this instance, by advocating integration 
of public accommodations” (id. at 752). See also Rogers v. City of 
Tuscaloosa, 353 F. 2d 78, 79 (5th Cir. 1965), to the effect that 
“prosecutions of the [removants] . . . done in the exercise of their 
federally protected constitutional rights” are removable under 
§ 1443(1), and Cooper v. Alabama, 353 F. 2d 729 (5th Cir. 1965), 
to the same effect.



7

was maintained for the sole purpose and effect of harass­
ing, intimidating and preventing her from, carrying out 
her civil rights activities and of deterring and inhibiting 
her and others similarly situated from exercising their 
federal rights, pursuant to Mississippi’s policy of racial 
discrimination {id., 3, para. V I). Compare the allegations 
in Brown, slip opinion, pp. 2-4. Her case was remanded 
without a hearing7 on authority of the Rives-Powers doc­
trine (Oertge R. 17-25), District Judge Clayton ruling that 
“ even if the petitioner’s arrest was carried out as a harass­
ing tactic in furtherance of a policy of discrimination, that 
fact does not entitle petitioner to remove because such 
jjractices are not only not required by state law but indeed 
would be gross violations of that law” {id., 25-26).

Smith, a civil rights worker from New York {Smith R. 2, 
para. 1), arrested while talking to local Negroes in a school 
playground {id., 2-3, para. 1) and charged with disturbing 
the peace (an offense for which he was convicted in the 
police court, and sentenced to three months imprisonment 
and $300 fine, id., 3, para. 2), made similar allegations that 
his conduct was federally protected {id., 5-6, 8, paras. 4, 6), 
and that the prosecution was maintained for the sole pur­
pose of harassment and intimidation to deter protest of 
racial discrimination {id., 6-7, para. 5). His prosecution 
was remanded without a hearing8 by Judge Clayton for

7 Appellee’s motion to remand did not deny the allegations of the 
removal petition, but contested its sufficiency on its face {Gertge 
R. 11). No affidavits were filed.

8 Appellee’s motion to remand did not deny the allegations of the 
removal petition, but contested its sufficiency on its face (Smith R. 
12-14) ; the supporting affidavit established only that Smith was 
tried and convicted in the police court {id., 15-17).



8

want of a facially unconstitutional state statute or consti­
tutional provision, on authority of the Gertge decision (id., 
21) .

Allen, a Mississippi Negro, was arrested while partici­
pating in a demonstration at the Pike County Courthouse 
to protest racial discrimination in voting registration 
(Allen R. 1-2, paras. 2-3). The demonstration was quiet 
and orderly and did not block or interfere with anyone’s 
access to the courthouse or surrounding walks and streets 
(ibid.). Allen was thereupon arrested and charged with 
picketing and engaging in a mass demonstration so as to 
interfere with ingress to and egress from the county court­
house and passage on the adjacent public sidewalks (id., 
2, para. 6). He alleged that his arrest and prosecution 
were part of Mississippi’s deliberate program and policy 
of harassing and deterring Negroes in the exercise of fed­
erally-guaranteed free speech to protest racial discrimina­
tion (id., 3, para. 11). Disposing of the case “ on verified 
petition to remove and motion to remand and briefs of the 
parties” (id., 19) without a hearing,9 Judge Cox remanded 
the prosecution to the state courts on the expressed ground 
that “ the petition does not contain ‘a short and plain state­
ment of the facts’ which entitles the petitioner to remove 
this cause here” (id., 19).10

9 Appellee filed a motion to remand, asserting that Allen was 
properly charged and would receive a fair trial, and also a verified 
“Answer and Brief in Support of Motion to Remand,”  stating that 
Allen’s picketing blocked egress (Allen R. 13). However, it does not 
appear that Judge Cox undertook the unilluminating task of resolv­
ing factual disputes on the basis of these two sketchy and conelusory 
documents, for his remand order makes clear that he rejected the 
removal petition for insufficiency of the facts alleged to support 
removal. See text at note 10 infra.

10 Insofar as this holding reflects the view that the petition is 
insufficiently specific as a pleading, it is plainly incorrect under the 
notice-pleading practice approved in Rachel v. Georgia, supra, and



9

Plainly there is no ground upon which the remand orders 
in these three cases can be sustained consistently with this 
Court’s subsequent decisions from Peacock through Brown 
v. Meridian, and the judgments of the district courts must 
therefore be reversed.11

II.
In the McGee, Austin and Grandison Appeals, Reversal 

Is Required by Peacock and Subsequent Decisions, Not­
withstanding Affidavits Were Filed in the District Court 
Controverting the Factual Allegations of the Removal 
Petitions.

No less than in the three appeals discussed in Part I, 
supra, the removal petitions filed in McGee, Austin and 
Grandison are sufficient to sustain removal.

McGee, a Negro and a United States Air Force officer, 
was arrested and charged with disturbing the peace when 
he attempted to use the white waiting room in an interstate

the decisions following Rachel, cited p. 6 supra. But it appears 
that Judge Cox reached and wrongly decided the merits of the case 
presented by the petition, for he added that, taking judicial notice 
of the statutes involved, he did “not feel impelled by any showing 
made to conclude that the presumption of validity of any such 
statute is overcome by any fact or circumstance urged or presented 
here” {id., 19), and his reference to state statute or organic law 
{ibid.) is a clear adversion to the Rives-Powers doctrine which 
Peacock was later to repudiate in such eases.

11 Since appellants’ petitions in McGee, Austin, Smith, Gertge, 
Grandison and Allen are sufficient to sustain removal under this 
Court’s construction of 28 U. S. C. § 1443(1), there is no need to 
reach the question here of their sufficiency under 28 U. S. C. § 1443 
(2). Compare Peacock, supra, with Rogers v. City of Tuscaloosa, 
supra. However, in light of the pendency before the Supreme Court 
of contentions under § 1443(2) made by the removants in Rachel 
and Peacock, appellants wish to preserve their claims of remov­
ability under that subsection.



10

railroad terminal in Meridian, Mississippi (McGee E. 2-3, 
para. 1). He alleged that his conduct was protected by 
federal law, rendering the statute underlying his prosecu­
tion unconstitutional as applied (id., 5, paras. 7-9), and 
that his arrest and prosecution were carried on for the sole 
purpose of harassing and punishing him so as to deter him 
from using public facilities free of racial discrimination 
(id., 3, para. 2).

Of Austin, it is sufficient to say that the case involves 
prosecutions for picketing or demonstrating so as to ob­
struct a public street and for parading without a permit,12 
arising out of attempts by Negroes to go to the courthouse 
to register to vote, to demonstrate in support of prospec­
tive Negro registrants or to protest racial discrimination 
against them (Austin E. 9-13, paras. 2-4). The removants’ 
allegations of federal constitutional protection of their con­
duct and allegations of racial harassment motivating the 
charges against them are literally identical to the allega­
tions sustained in Brown v. City of Meridian, supra (Austin 
E. 16-20, paras. 7-9).

Similarly, G-randison, an onlooker at an orderly, First 
Amendment-protected demonstration protesting school seg­
regation (Grandison E. 1-2, paras. 2-6), was arrested and 
charged with trespass, resisting arrest and refusing to 
move on at the request of an officer under such circum­
stances as might cause a breach of the peace (id., 2-4, 
paras. 2-7); she alleged that the statutes underlying hex- 
prosecution were being applied in violation of the First and 
Fourteenth Amendments (id., 3-4, para. 10), and that her

12 One appellant, Hamblin, was also charged with using profane 
language and resisting arrest. See Cooper v. Alabama, supra.



11

arrest and prosecution (with those of the demonstrators and 
other onlookers) were in furtherance of a pattern of deter­
ring Negroes from the exercise of free speech to protest 
racial discrimination (id., 3, para. 9).

If the remand orders in these cases can survive appellate 
scrutiny, then, it can only be for the reason that in each 
case—unlike the Smith, Gertge and Allen cases—the order 
was entered after filing by the prosecution of an affidavit 
or affidavits controverting the factual allegations of the 
removal petition. In McGee, an affidavit by the railroad 
terminal superintendent denied that the waiting rooms (the 
affidavit admits that there are two) in the Meridian ter­
minal were segregated (McGee R. 10-11). In Austin, an 
affidavit of the city attorney set out a description of the 
events leading to removants’ arrests somewhat different 
from that in the removal petition (Austin R. 33-36).13 Sim­
ilarly, in Grandison, an affidavit of the city marshal sup­
ported the allegations in the prosecution’s Answer (Grandi­
son R. 23), which recited facts tending to show that the 
school demonstration in issue was disorderly and obstruc­
tive, and Grandison a participant who resisted valid arrest 
(id., 16-20). In view of the factual disputes presented, 
appellees may be expected to urge affirmance under the 
principle of Forman v. City of Montgomery, 355 F. 2d 930 
(5th Cir. 1966), aff’g 245 F. Supp. 17 (M. D. Ala. 1965), 
which sustained a remand order in a civil rights removal 
case where the district court, after plenary evidentiary 
hearing, found that the removants’ conduct was not fed­
erally protected.

13 There was also filed an affidavit by the mayor that no parade 
permit was applied for by the removants (Austin R. 29-30).



12

For several reasons, the affidavits referred to above will 
not sustain affirmance of the remand orders here:

(1) As recognized in Rachel, 342 F. 2d at 342, the whole 
purpose of civil rights removal jurisdiction is to give 
removants in civil rights cases “ a federal forum . . .  to 
protect [federally guaranteed civil] . . . rights.” The 
rationale of such a forum is that the removants may 
have the benefit of a federal judge’s findings of fact upon 
which to rely for the vindication of their constitutional 
rights. See Amsterdam, Criminal Prosecutions Affecting 
Federally Guaranteed Civil Rights: Federal Removal and 
Habeas Corpus Jurisdiction to Abort State Court Trial, 
113 U. Pa. L. Rev. 793, 802-803, 840-841, 857-858, 861-862 
(1965); cf. Townsend v. Sain, 372 U. S. 293 (1963); England 
v. Louisiana State Board of Medical Examiners, 375 U. S. 
411 (1964).

This function of the removal jurisdiction is admirably 
served by the procedure employed by Judge Johnson in 
the Forman case, supra, and in other cases in which Judge 
Johnson, after plenary evidentiary hearing, has accepted 
removal jurisdiction and dismissed unconstitutional state 
prosecutions as envisaged by Rachel and Peacock: e.g., 
McMeans v. Mayor’s Court, Fort Deposit, Alabama, 247 
F. Supp. 606 (M. D. Ala. 1965). It is inadequately served 
by a trial of factual issues on affidavits. As the records 
in these cases plainly demonstrate, the filing of contrary 
affidavits by the parties is sufficient merely to demonstrate 
the existence of factual dispute, not to resolve it. Only 
hearing ore tenus, allowing cross-examination and an as­
sessment of credibility of conflicting witnesses by the fed­
eral judge, enables rational resolution of factual disputes. 
See Judge Rives’ dissent in Cameron v. Johnson, 244 F.



13

Sapp. 846, 856 (S. D. Miss. 1964), rev’d 381 U. S. 741 
(1965): “ Without the benefit of oral testimony and cross- 
examination of the witnesses it is impossible to resolve the 
conflict of testimony.” The right of cross examination by 
removants of police and other state officials is particularly 
critical in § 1443 cases, because the facts demonstrating that 
arrests and prosecutions are unfounded are peculiarly 
within their knowledge. For these reasons, appellants be­
lieve that the “ hearing” to which Rachel and Peacock hold 
them entitled is exactly what that word ordinarily signifies, 
and what it must signify if § 1443 is to be effective: a full 
evidentiary hearing in open court. If the purpose of the 
statute makes this so, of course, no federal district court 
by rule or otherwise can deny so vital a procedural imple­
ment of the removal jurisdiction. Cf. Lefton v. City of 
Hattiesburg, 333 F. 2d 280 (5th Cir. 1964); Alexander v. 
Cox, 348 F. 2d 894 (5th Cir. 1965); Brown v. City of 
Meridian, supra. Assuming, then, that the district judges 
below purported to decide the facts against appellants on 
affidavits, they erred in so doing.

Nor is the burden upon the removing party to demand 
a hearing for the resolution of factual disputes. When a 
removant files his verified petition for removal, nothing 
further remains for him to do to perfect removal jurisdic­
tion. 28 TJ. S. C. § 1446(e) (1964). It is the party objecting 
to the jurisdiction who files a motion to remand, and it is 
he who must notice the motion for hearing if he wishes to 
contest the removant’s facts. Ultimately, at the hearing, 
the burden of persuasion is upon removant, but the pro­
cedural burden of demanding hearing is upon the party 
who asks the court to act and to remand the case. None 
of the appellees here made any such demand, and they



14

cannot now seek support of the district courts’ rulings in 
their versions of disputed fact.14

(2) Even were this Court to approve the procedure of 
trials of contested factual issues on affidavits, the orders 
below would still require reversal. Judge Cox’s remand 
orders in Austin and Grandison, and Judge Mize’s in 
McGee, were entered prior to Peacock and without specific 
findings of fact. In this situation, it is impossible to know 
whether the district judges credited the prosecution’s affi­
davits and remanded on a proper view of the law or dis­
credited the prosecution’s affidavits and remanded on an 
improper view of the law. Certainly, the latter supposition 
is the most probable, in light of (a) the avowedly revolu­
tionary nature of the Peacock opinion; (b) opinions by 
Judge Cox in other pre-Peacock cases holding insufficient 
allegations of removal petitions which Peacock clearly made 
sufficient, see, e.g., Golick v. City of Meridian, S. D. Miss., 
E. D., Crim. No. 5210, opinion 5/31/65, appeal pending, 
5th Cir., No. 23065 (opinion relies on Rives-Powers doc­
trine distinguished in Peacock), Clark v. City of Natchez, 
S. D. Miss., W. D., Crim. No. 4393, remand order 6/3/65, 
appeal pending, 5th Cir., No. 23067 (remand on pleadings); 
Parker v. City of Pascagoula, S. D. Miss., S. D. Crim. No. 
8358, remand order 6/7/65, appeal pending, 5th Cir., No. 
22719 (sam e); Morton v. Mississippi, S. D. Miss., Jackson 
D,, Criminal No. 3547, remand order 6/2/65, appeal pend­
ing, 5th Cir., No. 23066 (remand on face of petition, without 
answer or motion to remand); (c) similar decisions by

14 The contentions made in Parts II (1) and (2) of this Brief 
were not argued to the Court in Smith v. City of Jackson, No. 22805, 
decided March 10, 1966. Cognate arguments have been urged in a 
petition for rehearing of that case, filed March 30, 1966.



15

Judge Mize, see Brown v. City of Meridian, supra; and 
(d) the circumstance that McGee and Austin were re­
manded several months prior to adoption of the Southern 
District Court Rule of April 5, 1965, Appendix II infra, 
which for the first time inaugurated a procedure of hearing 
remand motions on affidavit. See the previous rule, Appen­
dix I, infra.

The posture of these cases, then, is not the ordinary one 
in which, facts of record supporting the action of a district 
judge under correct principles of law, it is appropriate to 
assume that the judge took the correct view’ of the law and 
found the facts (although without making explicit findings) 
necessary to rule as he did under that correct view. Rather, 
the situation is one in which the district judge’s view of the 
law is more likely to have been wrong than right,15 and in 
which it is therefore impossible to say what facts he found.

15 The remand orders in the several eases support the inference 
that the district judges ruled on the insufficiency in law of re­
movants’ cases, rather than on a resolution of disputed factual 
issues. In McGee, Judge Mize recited that his order was entered 
on consideration of the papers and affidavits, but concluded that 
“ Section 1443 has no application to the matters alleged and set 
forth in the Petition for Removal.”  (McGee R. 15, emphasis added.) 
Judge Cox’s order in Austin is more ambiguous. He concludes that 
“ the petitioners have failed to show or prove by a preponderance 
of the evidence that there is any merit in any one of the petitions; 
and the Court is of the opinion that these cases should be remanded 
to the state court for the further reason that the petitioners have 
not shown that their cases come within the provisions of any removal 
statute.”  (Austin R. 44, emphasis added.) But elsewhere he speaks 
the language of the Rives-Powers doctrine ( “state law or provision 
in the state constitution,” id., 42), and admits the existence of 
factual disputes which he does not purport to resolve (id., 42-43). 
Moreover, he says: “Mere legalistic language contained in the peti­
tion (and denied in the answers) without any ultimate factual 
support stated therein or proved before the Court . . .  is insuffi­
cient to raise an issue on those grounds here” (id., 42) ; and again: 
“ There is no proof before the Court and nothing is contained in 
any petition to show this Court that the enforcement of these ordi­
nances will result in any denial or even abridgement” of petitioners’



16

A  clearly apposite example is that presented immedi­
ately following the overruling of the “ silver platter” doc­
trine by Elkins v. United States, 364 U. S. 202 (1960). 
In cases reaching the federal appellate courts after Elkins, 
the records showed pre-Elkins rulings by the district judges, 
without explicit factual findings, refusing to suppress evi­
dence seized by state officers in searches whose legality 
rested on resolutions of factual conflicts. The district court 
decisions in these cases might have been sustained by as­
suming that the district judges had resolved relevant factual 
disputes favorably to the Government and found the 
searches valid under the Fourth Amendment. But the ap­
pellate courts could not reasonably have made such an 
assumption, and so these cases were remanded. E.g., Rios 
v. United States, 364 IT. S. 253, 260 (1960). Cognate prin­
ciples controlled the disposition recently even of a case 
coming to the Supreme Court of the United States from a 
state trial court, Shuttlesworth v. City of Birmingham, 382 
U. S. 87 (1965). The same principles plainly require at 
the very least that the Court vacate the remand orders and 
return these cases for reconsideration in light of Peacock.

rights {id., 42, emphasis added). The statement that there is “no 
proof” is plainly erroneous, in light of petitioners’ affidavits {id., 
la-3a, 7a), see United States v. Puke, 332 F. 2d 759, 762 (5th Cir. 
1964) ; what Judge Cox meant in stating that petitioners had failed 
“ to raise an issue” rather seems to be that the assertions of their 
verified petitions and affidavits, if true, would not support removal. 
As for Grandison, Judge Cox adjudged the petition there without 
merit “ in fact or law” {Grandison R. 26) ; his order is quite unclear, 
concededly, but read in context of his Golick and Clark decisions, 
supra., one day before and two days after Grandison, it seems plain 
he disposed of Grandison on the pleadings.



17

(3) Furthermore, in the McGee and Austin eases, re­
moval is required to be sustained even on the record seen 
from the point of view most favorable to appellees.

In McGee, appellant’s verified removal petition avers 
that he was arrested for entering a white waiting room, and 
that the arrest and prosecution are maintained to intimi­
date him, a Negro, from equal use of such interstate ter­
minal facilities (McGee E. 2-3, paras. 1-2). Appellee’s affi­
davit of the terminal superintendent asserts that although 
there are two waiting rooms maintained in the terminal, 
“ there is not one maintained separately for persons of the 
white race or one maintained separately for persons of the 
black race” (id., 11), but as to “ any intimidations of the 
blacks by the whites in the premises of such passenger 
terminal” (ibid.), the superintendent can say only that he is 
“ without any knowledge” (ibid.). Since the only other 
affidavit filed by appellee—that of the deputy clerk of the 
municipal court—establishes that the charges against ap­
pellant were not prosecuted on complaint of the terminal 
superintendent, but of some other person (id., 12), appel­
lee’s assertions do not respond to appellant’s. I f the case 
were to be decided on affidavits, removal jurisdiction would 
have to be found.

Similarly in Austin, the appellee’s affidavits present a 
version of the facts which differs only immaterially from 
the facts recited in the verified removal petition and ap­
pellants’ affidavits. See Brief for Appellants in Austin, 
3-5. Allowing appellee these differences, appellants’ prose­
cutions are in flagrant violation of their federal freedoms of 
speech and assembly to protest discrimination, and of their 
federal privilege and immunity to register to vote in



18

federal elections. See authorities cited id. at 8.1<s Austin 
thus confirms—if further confirmation were needed— Judge 
Cox’s erroneous view of the removal statute prior to Pea­
cock, and makes evident the appropriateness of vacating 
his decision in Grandison as well.

III.

Chinn Must Be Reversed Under Strauder v. West 
V irginia.

Chinn brings to this Court a question which it has not 
heretofore resolved, but which is controlled by the earliest 
of Supreme Court decisions construing present 28 U. S. C. 
§ 1443(1) (1964), Strauder v. West Virginia, 100 U. S. 303 
(1880). Strauder allowed removal in cases where a state 
statute on its face violated the Equal Protection Clause 
of the Fourteenth Amendment and present 42 U. S. C. 
§1981 (1964) by excluding Negroes from jury service. 
Chinn’s brief in chief argues that this is precisely his case, 
pointing out that Mississippi statutes effectively limit jury 16

16 It is apparent that on City Attorney Goza’s affidavit—that he 
requested the Negro leaders to advise their followers “ to proceed in 
small groups” (Austin R. 33), and that “numerous persons were 
allowed to proceed in small groups” toward the courthouse (id., 
34-35)—the subsequent police decision to arrest groups estimated at 
ten and fourteen persons by Goza (id., 34) falls afoul of the rule of 
Cox v. Louisiana, 379 U. S. 559 (1965). And Reverend Cox’s claim 
has already been held sufficient by this Court to sustain removal. 
Cox v. Louisiana, 348 P. 2d 750 (5th Cir. 1965). For this reason 
it is unnecessary to reach the question whether the parade-permit 
ordinance.of the City of Canton, see Brief of Appellants in Austin, 
Appendix 2a-4a, can constitutionally be applied, as Attorney Goza 
appeared to assert, to bar marches by any other than “small groups” 
of persons (Austin R. 33), small apparently being defined and 
redefined by the police from time to time. See Cox v. Louisiana, 
379 U. S. 536, 555-558 (1965) (obstructing public passages convic­
tion).



19

service to qualified electors17 and that the Mississippi con­
stitutional-interpretation test for voting registrants, Miss. 
Const., § 244, is clearly void on its face under Louisiana v. 
United States, 380 IT. S. 145 (1965). Brief for Appellant 
in Chinn, pp. 4-6.

Since the Chinn brief was written, the Mississippi con­
stitutional-interpretation test for voting registrants has 
been repealed. Senate Concurrent Resolution No. 103, 
Laws, First Extraordinary Session 1965, p. 76, ratified 
August 17, 1965; Senate Bill No. 1507, Laws, First Ex­
traordinary Session 1965, p. 38. Nevertheless, Chinn’s con­
tention remains valid, for several reasons:

(1) Chinn was indicted by a grand jury composed of 
jurors qualified under former §244. The indictment was 
returned in the September Term, 1964 of the Circuit Court 
for Madison County (Chinn R. 7). At that time, the grand 
jurors were selected, as Judge Cox found, “ in strict ac­
cordance with state law . . .  at random from a list of quali­
fied electors which contained some negroes” (id., 145)— 
that is, under the facially unconstitutional provisions of old 
§ 244. Section 244 was amended to cure its facial uncon­
stitutionality a year later, in 1965. The Circuit Court has 
already denied Chinn’s motion to quash the indictment (id., 
5, 9). Thus, as respects Chinn’s rights under the federal 
Constitution not to be indicted by a grand jury from which 
Negroes have been systematically excluded due to discrim-

17 The alternative status required to qualify a juror under the 
Mississippi Code—that of a resident freeholder, see Miss. Code 
Ann., 1942, §§ 1762, 1762-01 (Supp. 1964)—has been effectively 
condemned as violative of the Equal Protection Clause in Harper 
v. Virginia State Board of Elections, 34 U. S. L. Week 4305 (U. S. 
March 24,1966).



20

inatory state legislation, repeal of former § 244 does not 
touch his case.

(2) As this Court has recognized in the “ freeze-order” 
cases,18 discriminatory exclusion of Negroes from the ranks 
of qualified electors does not terminate instanter with the 
abolition of the discriminatory devices by which their reg­
istration was long barred. For a time following repeal of 
the facially unconstitutional provisions of former Miss. 
Const., § 244, Negroes have continued to be underrepre­
sented on the rolls of qualified electors, and the discrimina­
tory disproportion remains as attributable to former 
§ 244 today as when § 244 was law. There can be no 
doubt that if Chinn is presently tried by a Mississippi 
petit jury of qualified electors, he will be denied the equal 
protection of the laws through systematic exclusion of 
Negroes from the jury, and this exclusion will be worked 
by the continuing effects of former § 244. The cut-off period 
for application of Strauder should be no less than the cus­
tomary “ freeze” period of a year, see United States v. 
Duke, 332 F. 2d 759 (5th Cir. 1964)—a period which will 
not have run until August 17, 1966.

(3) Mississippi’s jury-selection legislation is still facially 
unconstitutional under Louisiana v. United States, supra. 
The presently controlling provisions, set out in Appendix 
III, infra, Miss. Code Ann., 1942, §§ 1762-1762-03 (1964 
Supp.), provide that the jury commissioners shall “ select 
and list the names of qualified persons of good intelligence, 
sound judgment, and fair character.” Plainly, these stand­
ards are so indefinite and amorphous as to allow and invite

18 See authorities collected in Hamer v. Campbell, 5th Cir., No. 
22552, decided March 11, 1966, slip opinion p. 2 n. 2.



21

racial discrimination, as did the voting-registration provi­
sions voided in Louisiana v. United States, and they must 
fall under the force of that decision.19

CONCLUSION

The remand order in each case should he reversed.

Respectfully submitted,

C absie  A. H a l l

H e n r y  M . A ro n so n

538% North Farish Street 
Jackson, Mississippi 39202

R. J ess B r o w n

125% North Farish Street 
Jackson, Mississippi 39201

J a c k  G reen berg

M e l v y n  Z arr

10 Columbus Circle 
New York, New York 10019

A l v in  J . B r o n ste in

603 North Farish Street 
Jackson, Mississippi 39202

A n t h o n y  G. A m ster d a m  
3400 Chestnut Street 
Philadelphia, Pennsylvania 19104

Attorneys for Appellants

19 Section 1762-03 and cognate provisions are now under consti­
tutional challenge in Willis v. Carson, S. D. Miss., C. A. No. 1145 
(W ) (R ) ,  filed February 25, 1966. The United States has inter­
vened in that litigation, seeking a declaration of unconstitutionality 
of the statutes.



A P P E N D I C E S



APPENDIX I

UNITED STATES DISTRICT COURT

S o u t h e r n  D istr ic t  o f  M ississipp i

Rule Relating to Practice and Procedure in Removal 
of Civil and Criminal Cases From State Court 

to This Court

A petition to remove a civil case or criminal prosecution 
from the state court to this court shall contain a clear, 
concise and plain statement of the ultimate facts in neces­
sary detail (not legal conclusions) to show that petitioner 
or petitioners have the right to remove the action to this 
court, and shall be filed in duplicate (on legal size paper 
with clearly legible type and be neatly prepared) with duly 
certified copies of all pleadings, affidavits, indictments, 
process with return thereon and orders entered therein, 
all of which shall be clear and easily legible, attached. 
Each such petition shall be sworn to by each petitioner 
and shall embrace only one civil case or criminal prosecu­
tion against the defendant or defendants, and shall not 
include any other case or prosecution or any defendant in 
another separately docketed or numbered case or prose­
cution. No petition shall be filed in this court which con­
tains a name of any defendant in more than one state case 
or prosecution and only one such case or prosecution shall 
be contained in a single petition. Each civil and each crimi­
nal petition alike shall be accompanied by a bond to be 
approved by the Court in the penalty of five hundred dol­
lars in each ease, conditioned to pay all taxable costs if 
the case is remanded. The Clerk shall require the usual 
filing fee to be paid upon filing any such petition. This



2a

Court shall not have or assume jurisdiction of any removed 
case which is not removed as herein provided. Any failure 
to comply with any requirement of this rule shall result 
in the striking of any non-conforming petition upon timely 
request. The United States shall not be required to post 
any bond or prepay any filing fee in any case which it may 
officially remove to this Court. This rule shall be effective 
after date and supersede any rule in conflict with it.

Ordered, this 2nd day of December, A. D., 1963.

/ s /  S idney C. M ize 
United States District Judge

/ s /  H arold Cox 
United States District Judge



APPENDIX II

UNITED STATES DISTRICT COURT 

Southern D is t r ic t  or Mississippi 

[All Divisions]

Rule Regulating Procedure in Removals of 
Criminal Prosecution From State Court

A  Verified petition for removal of a criminal prosecu­
tion from a state court must contain the indictment, or 
the affidavit and any order or judgment of the state court 
attached thereto as the necessary record here. A. petition 
not containing such record in its entirety and sworn to 
as such will be dismissed for inadequacy and insufficiency. 
A  petition must be answered within twenty days after re­
ceipt of notice thereof. An answer must set forth the re­
spondent’s ultimate factual contentions. A general trav­
erse will be treated as an admission.

A  motion to remand shall be noticed and presented within 
ten days after issuance thereof.

After an answer or motion to remand is filed, both par­
ties shall have ten days within which to file affidavits in 
support of their respective contentions. The petition, an­
swer and motion to remand shall be treated and considered 
as submitted to the Court for its decision thereon, unless 
otherwise ordered or extended by the Court.

In cases previously removed to this Court, the parties 
shall have ten days after their counsel are mailed a copy 
of this rule within which to file affidavits, and thereafter



4a

such eases shall be treated and considered as submitted to 
the Court for its decision as above provided.

This rule shall be effective from and after this date in 
the Southern Judicial District of Mississippi unless other­
wise ordered. A  copy of this rule shall be furnished at­
torneys at the bar of this Court who have such cases pend­
ing in this district and who file such proceedings in this 
district after this date.

Ordered, this 5th day of April, A. D., 1965.

/ s /  Harold Cox
Chief Judge, U. 8. District Court



APPENDIX III

Miss. Code Ann., 1 9 4 2 , § §  1762  to 1 7 62 -0 4  

(1 9 6 4  Supp.)

§ 1762. Who are competent jurors.

Every male citizen not under the age of twenty-one (21) 
years, who is either a qualified elector, or a resident free­
holder of the county for more than one year, and has not 
been convicted of an infamous crime, or the unlawful sale 
of intoxicating liquors within a period of five (5) years 
and who is not a common gambler or habitual drunkard, is 
a competent juror; but no person who is or has been within 
twelve (12) months the overseer of a public road or road 
contractor shall be competent to serve as a grand juror. 
But the lack of any such qualifications on the part of one 
or more jurors shall not vitiate an indictment or verdict. 
However, be it further provided that no talesman or tales 
juror shall be qualified who has served as such tales juror 
or talesman in the last preceding two (2) years; and no 
juror shall serve on any jury who has served as such for 
the last preceding two (2) years; and no juror shall serve 
who has a case of his own pending in that court, provided 
there are sufficient qualified jurors in the district, and for 
trial at that term.

SOURCES: Laws, 1962, ch. 308, § 1, eif from and after passage 
(approved May 7, 1962).

§ 1762-01. Resident freeholders not qualified electors—  
competent jurors by court order.

Whenever any judge of the circuit court of any circuit 
court district determines in his discretion that persons who 
are then, and have been for more than one (1) year previ­
ously thereto, a resident freeholder of any county in his



6a

district though not a qualified elector of that county, should 
be made and constituted a person qualified to serve as a 
competent juror of the county of that person’s residence, 
but who is otherwise qualified, the said circuit judge is 
authorized to make and enter an order, in term time or in 
vacation, upon the minutes of the circuit court of such 
county to that effect and thereupon all persons in that 
county who are and have been such a resident freeholder 
shall thereupon be qualified, in accord with the terms of 
this act, to serve upon any jury in that county. Said order 
shall remain in full force and effect until terminated by 
an order of the judge of the circuit court district in which 
said county is situated, to be entered upon the minutes of 
the circuit court in that county in term time or vacation.

SOURCES: Laws, 1964, ch. 327, § 1.

§ 1762-02. Who are competent jurors— after entry of 
court order.

Upon the entry of the aforesaid order by said circuit 
judge of the circuit court, and until its termination by an 
order made under Section 1 [§ 1762-01] hereof, supra, 
every male citizen not under the age of twenty-one (21) 
years, who is either a qualified elector, or who is and has 
been a resident freeholder of the county for more than one 
(1) year, and has not been convicted of an infamous crime, 
or the unlawful sale of intoxicating liquors within a period 
of five (5) years and who is not a common gambler or 
habitual drunkard, is a competent juror; but no person who 
is or has been within twelve (12) months the overseer of a 
public road or road contractor shall be competent to serve 
as a grand juror. But the lack of any such qualifications 
on the part of one or more jurors shall not vitiate an in­
dictment or verdict. However, be it further provided that



7a

no talesman or tales juror shall be qualified who has served 
as such tales juror or talesman in the last preceding two 
(2) years; and no juror shall serve on any jury who has 
served as such for the last preceding two (2) years; and no 
juror shall serve who has a case of his own pending in 
that court, provided that there are sufficient qualified 
jurors in the district, and for trial at that term.

SOURCES: Laws, 1964, eh. 327, § 2.

§ 1762-03. How lists of jurors procured.

As long as an order provided for by Section 1 [§ 1762-01] 
supra, is in force and effect, the board of supervisors at 
the April meeting in each year, or at a subsequent meeting 
if not done at the April meeting, shall select and make a 
list of persons to serve as jurors in the circuit court for 
the twelve (12) months beginning more than thirty (30) 
days afterwards, and as a guide in making the list they 
shall use the registration book of voters and the land as­
sessment roll of the county, and shall select and list the 
names of qualified persons of good intelligence, sound 
judgment, and fair character, and shall take them as nearly 
as they conveniently can, from the several supervisors 
districts in proportion to the number of qualified persons 
in each, excluding all who have served on the regular panel 
within two (2) years, if there be not a deficiency of jurors. 
The clerk of the circuit court shall put the names from 
each supervisors district in a separate box or compart­
ment, kept for that purpose, which shall be locked and 
closed and sealed, except when juries are drawn, when the 
names shall be drawn from each box in regular order 
until a sufficient number is drawn. The board of super­
visors shall cause the jury box to be emptied of all names 
therein, and the same to be refilled from the jury list as



8a

made by them at said meeting. If the jury box shall at any 
time be so exhausted of names as that a jury cannot be 
drawn as provided by law, then the board of supervisors 
may at any regular meeting make a new list of jurors in 
the manner herein provided.

In order that the board of supervisors may properly 
perform the duties required of it by this section, it is 
hereby made the duty of the circuit clerk of the county 
and the registrar of the voters to certify to the board of 
supervisors during the month of March of each year under 
the seal of his office the number of qualified electors in each 
of the several supervisors districts in the county.

If and when the above order of the district judge is 
terminated, then thereafter the land assessment roll of the 
county shall not be used or referred to in making a list 
of persons to serve as jurors in the said circuit court.

SOURCES: Laws, 1964, ch. 327, § 3.

§ 1762-04. When act becomes operative— conditions.

The authority conferred by the terms of Sections 1, 2 
and 3 [§§1762-01, 1762-02, 1762-03], supra, shall be exer­
cised only on and after any date when persons who are 
and have been resident freeholders of a county for more 
than one (1) year are eliminated by amendment or other­
wise as qualified or competent jurors under the provisions 
of Section 1, Chapter 308, Mississippi Laws of 1962, being 
Section 1762, Mississippi Code of 1942, Recompiled, and 
Section 2 of said Chapter 308, Mississippi Laws of 1962, 
being Section 1766, Mississippi Code of 1942, Recompiled.

SOURCES: Laws 1964, ch. 327, § 4.



38