Smith v Student Non Violent Coordinating Committee Brief for Appllants

    United States Court of Appeals
FOR THE FIFTH CIRCUIT

IN THE

NO. 27,276

CARL SMITH,
Plaintiff-Appellee, 

v.
STUDENT NON-VIOLENT COORDINATING 

COMMITTEE, ALBANY MOVEMENT, 
SLATER KING, MARION PAGE, SAMUEL WELLS, 

EMMA PERRY, LU TH ER WOODALL, 
WILLIAM COLBERT, and THOMAS CHATMON,

Defendants-Appellants.

Appeal from the United States District Court 
for the Middle District of Georgia 

Albany Division

BRIEF FOR APPELLANTS

C. B. K ing 
P. O. Box 1024 
Albany, Georgia 31702
H oward M oore , J r .
Pe t e r  E. R in d sko pf  
859% Hunter Street, N.W.
Atlanta, Georgia 30314
J a ck  G r een ber g  
10 Columbus Circle 
New York, New York 10019
ATTORNEYS FOR DEFENDANTS- 

APPELLANTS



INDEX
Page

Statement of Issues Presented______________________ 1

Statement of the Case____________________________2

Constitutional and Statutory Provisions_____________5

Argument

I. Removal was improperly denied without
a hearing________________________________ 7

II. The petition states an additional ground
for rem oval______________________________ 9

III. The trial court erroneously taxed attorney’s
fees against appellants_____________________ 11

A. Appellants did not act in bad faith______11
B. Absent bad faith, awarding attorney’s

fees is improper_____________________ 13
C. Award of attorney’s fees without

hearing was improper________________ 14
Conclusion ___________________________________ 16

l

Table of Cases
Achtenberg v. Mississippi, 393 F.2d 468

(5th Cir. 1968)______________________________  7
Anderson v. Martin, 375 U.S. 399_________________ 10
Avery v. Georgia, 345 U.S. 599____________________ 10
Bell v. School Board of Powhatan County,

321 F.2d 494 (4th Cir. 1963)__________________ 13
Braun v. Hassenskin Steel Co., 23 F.R.D. 163

(D.S.D. 1959) _______________________________ 14

l



INDEX— continued
Page

Carroll v. President and Commissioners of 
Princess Anne,__ U .S.___ , 89 S.Ct. 347_________15

Davis and Hazzard v. State of Alabama,
399 F.2d 527 (5th Cir. 1968)__________________11

Georgia v. Rachel, 384 U.S. 780________________7, 8, 9

Greenwood v. Peacock, 384 U.S. 808_____________5, 8

Jones v. Mayer, 392 U.S. 407____________5, 8, 9, 12, 13

Miles v. Dickson, 387 F.2d 716 (5th Cir. 1967)_____15

Pacific R. Removal Cases, 115 U.S. 1______________12

Rachel v. Georgia, 342 F.2d 336 (5th Cir. 1965)_____4

Rolax v. Atlantic Coast Line R. R.,
186 F.2d 473 (4th Cir. 1951)___________________13

Shuttlesworth v. City of Birmingham,
399 F.2d 529 (5th Cir. 1968)________________11, 12

Shuttlesworth v. City of Birmingham,
__ U.S------ - 37 U.S. LAW WEEK 4203_________12

Sioux County v. National Surety Co., 276 U.S. 283__ 14

Smith v. United States, 375 F.2d 243
(5th Cir. 1967)______________________________13

Strauder v. West Virginia, 100 U.S. 303__________9, 10
Student Non-Violent Coordinating Committee 

v. Smith, 382 F.2d 9
(5th Cir. 1967)------------2, 3, 4, 5, 8, 9, 10, 12, 13, 14

Vaughn v. Atkinson, 369 U.S. 527_________________13
Virginia v. Rives, 100 U.S. 313____________________10

n



INDEX— continued
Page

Walker v. Georgia, 405 F.2d 1191 (5th Cir. 1968)___ 7

Weeks v. Fidelity Cas. Co. of N. Y.,
218 F.2d 505 (5th Cir. 1955)___________________12

Whatley v. City of Vidalia, 399 F.2d 521
(5th Cir. 1968)____________________________ 7, 8

Whitus v. Georgia, 385 U.S. 545__________________10

Williams v. Georgia, 349 U.S. 375_________________10

Wyche v. Louisiana, 394 F.2d 927 (5th Cir. 1967)__  7

Statutory Provisions

34 Ga. Code Ann. 609 (1964)____________________ 10

59 Ga. Code Ann. 106_________________________6, 12

28 U.S.C. 1443 ( 1 ) ___________________________ 2, 5

42 U.S.C. 1981_______________________4, 5, 6, 8, 9, 12

42 U.S.C. 1982__________________________________ 8

42 U.S.C. 1983_____________________________6, 8, 12

42 U.S.C. 2000a et seq ._________________________7, 8

Other Authorities

6 Moore’s Federal Practice_______________________ 13

iii



IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

NO. 27,276

CARL SMITH,

Plaintiff-Appellee,
v.

STUDENT NON-VIOLENT COORDINATING 
COMMITTEE, ALBANY MOVEMENT, 

SLATER KING, MARION PAGE, SAMUEL WELLS, 
EMMA PERRY, LU TH ER WOODALL, 

WILLIAM COLBERT, and THOMAS CHATMON,

Defendants-Appellants.

Appeal from the United States District Court 
for the Middle District of Georgia 

Albany Division

BRIEF FOR APPELLANTS

STATEMENT OF ISSUES PRESENTED

Whether the Court below erred in holding that the 
within civil case was not removable under 28 United

1



2

States Code, Section 1443 (1), that the removal petition 
was filed in bad faith, and in taxing attorney’s fees 
against the defendants-appellants, all without holding a 
hearing

STATEMENT OF THE CASE

This is an appeal from an order of United States Dis­
trict Judge J. Robert Elliott remanding to the Georgia 
court from which appellants had removed it a civil 
action brought against individuals and organizations par­
ticipating or formerly participating in a program whose 
purpose was to achieve racial equality in Albany, Geor­
gia.

On September 19, 1968, appellants filed in the United 
States District Court for the Middle District of Georgia, 
Albany Division, their verified petition for removal. The 
Court below remanded on November 25, 1968, holding 
that the civil rights removal statute, 28 U.S.C., Section 
1443, did not give a right to remove a civil case on the 
grounds stated in the petition, that the issue had been 
foreclosed against appellants by the decision of this 
Court in Student Non-Violent Coordinating Committee 
v. Smith, 382 F.2d 9 (5th Cir. 1967), and that the peti­
tion was accordingly brought in bad faith. Attorney’s 
fees in the amount of $700.00 were taxed against appel­
lants. A motion to alter or amend, filed on December 5, 
1968, was denied without opinion. No hearing was ever 
held in the case. Notice of appeal was timely filed.

“Smith, the plaintiff, sued the defendants in the Geor­
gia State Court for damages growing out of picketing 
of his store. His claim was that the defendants had con­
spired to boycott his store because of his service on a 
recent federal jury which tried a civil rights case against



3

the sheriff of Dougherty County, Georgia and found for 
the sheriff. The defendants removed the case to the Fed­
eral Court under the Civil Rights Removal provisions 
of Section 1443 (1). The District Court remanded it to 
the State Court.” Student Non-Violent Coordinating 
Committee v. Smith, supra, 382 F.2d at 10 (Footnotes 
omitted). (Hereinafter Smith I) The theory of appellee 
in the cause giving rise to this appeal is no different.

After the remand in Smith I, discovery was conducted 
by both sides in the state courts. Appellants filed a chal­
lenge to the array of jurors on grounds of racial exclu­
sion, which was heard in the state court on September 
3, 1968. The evidence adduced therein showed the 
population over age twenty-one in Dougherty County, 
Georgia, to be 27,567 white and 12,489 Negro. However, 
the jury lists from which the jurors were to be sum­
moned for the trial of the cause contained 2,033 whites 
and only 101 Negroes. Thus, although Negroes made up 
some 32% of the eligible population, they made up only 
4.8% of those actually selected for jury service. (Motion 
to alter or amend, Part II) .

The removal petition herein was filed in federal court 
on September 19, 1968, and properly served upon the 
state court just prior to the striking of the jury in the 
state case. Once the removal petition was filed, no 
further steps were taken by the state court. At no point 
in these proceedings was the removal objected to on 
grounds that it was not timely, either by appellee or the 
District Court sua sponte.

Since the case was remanded without hearing on the 
jurisdictional facts, the allegations of the removal peti­
tion must be taken as true for purposes of the appeal.



4

Rachel v. Georgia, S42 F.2d 336 (5th Cir. 1965). Those 
allegations are as follows.

Appellants are: the Student Non-Violent Coordinat­
ing Committee and the Albany Movement, organizations 
whose purpose in the securing of equal rights for all citi­
zens and all citizens in Albany, Georgia (Petition, para­
graphs 4, 5) ; Marion Page, Samuel Wells, W. G. Ander­
son, Slater King, Emma Perry, and Thomas Chatmon, 
are all Negro citizens of Albany, Georgia, all of whom 
except Chatmon are officers of the Albany Movement, 
Chatmon being merely associated therewith (Petition, 
paragraphs Introduction, 6) .* Three other appellants 
were named in the state suit but never served, including 
Anderson (Petition, paragraph 9). All of the appellants 
have participated in peaceful demonstrations on behalf 
of racial equality in Albany, Georgia; but, only those 
appellants not served in the state suit ever picketed the 
grocery store of appellee (Petition, paragraphs 7, 9).

A copy of the suit filed in state court is attached to the 
petition. It fits the description given in Smith I  and 
quoted above. Damages in the amount of $200,000 for 
special damages and $100,000 for punitive damages are 
claimed.

The petition further alleges that the real purpose of 
the suit is to harass, intimidate and obstruct them in the 
exercise of constitutionally protected First Amendment 
rights against racially discriminatory policies in the City 
of Albany thus denying them rights under 42 U.S.C.,

lAlthough Marion Page was dismissed as a defendant by plaintiff in the 
State Court immediately prior to this second removal; and, since the re­
moval in which he joined, defendant Slater King has been killed in an 
automobile accident.



5

1981. (Petition 10). It also alleges that the law of the 
State of Georgia under which jurors are selected denies 
the appellants their right to be free of racial discrimina­
tion in the composition of juries put upon them (Peti­
tion, paragraph 2). Petitioners also claim to be differen­
tially penalized because of their race or color for acts 
done under color of authority of laws of the United 
States providing for equal rights (Petition, paragraph 3).

The motion to alter or amend, also before the District 
Court, made three points: that the petition herein was 
not in bad faith and was based upon new matter not 
decided in Smith I; that the jury system in Dougherty 
County, Georgia, is constitutionally bad; and, that ap­
pellants had a right to hearing (Motion to alter or 
amend, parts I, II, I I I ) . In support of the claim of new 
matter, the motion urges that the question of Georgia’s 
jury statute was not passed on by the Court of Appeals 
in Smith I  and that the decision of the United States 
Supreme Court in Jones v. Mayer, 392 U.S. 407, having 
breathed new life into the Civil Rights Acts of 1866 et 
seq, has resulted in the overruling or expansion of the 
decisions of Greenwood v. Peacock, 384 U.S. 808, and 
Smith I. (Motion to alter or amend, part I (c) (2, 3)) .

The District Court neither altered nor amended its 
previous order remanding and taxing attorney’s fees 
against appellants.

CONSTITUTIONAL AND STATUTORY 
PROVISIONS

This case involves the First, Fifth, and Fourteenth 
Amendments to the United States Constitution, Section 
1443(1) of 28 United States Code, Sections 1981-1983



6

of 42 United States Code, and the following statute of 
the State of Georgia:

Section 106, 59 Georgia Code Annotated: Revision 
of jury lists. Selection of grand and traverse jurors. 
At least biennially, or, if the judge of the Superior 
Court shall direct, at least annually, on the first 
Monday in August, or within 60 days thereafter, the 
board of jury commissioners shall compile and 
maintain and revise a jury list of intelligent and 
upright citizens of the county to serve as jurors. In 
composing such list the commissioners shall select 
a fairly representative cross-section of the intelligent 
and upright citizens of the county from the official 
registered voters’ list which w'as used in the last pre­
ceding general election. If at any time it appears 
to the jury commissioners that the jury list, so com­
posed, is not a fairly representative cross-section of 
the intelligent and upright citizens of the county, 
they shall supplement such list by going out into 
the county and personally acquainting themselves 
with other citizens of the county, including intelli­
gent and upright citizens of any significantly iden­
tifiable group in the county which may not be fairly 
representative thereon.

After selecting the citizens to serve as jurors, the 
jury commissioners shall select from the jury list 
a sufficient number of the most experienced, intelli­
gent and upright citizens, not exceeding two-fifths 
of the whole number, to serve as grand jurors. The 
entire number first selected, including those after­
wards selected as grand jurors, shall constitute the 
body of traverse jurors for the county, except as 
otherwise provided herein, and no new names shall 
be added until those names originally selected have 
been completely exhausted, except when a name 
which has already been drawn for the same term 
as a grand juror shall also be drawn as a traverse



7

juror, such name shall be returned to the box and 
another drawn in its stead.
(Acts 1878-9, pp. 27, 34; 1887, p. 31; 1892, p. 61; 
1899, p. 44; 1953, Nov. Sess., pp. 284, 285; 1955, 
p. 247; 1967, p. 251; 1968, p. 533.)

ARGUMENT

I. Removal was improperly denied without a hearing.
Under the decision of the Supreme Court in Georgia 

v. Rachel, 384 U.S. 780, civil rights removal petitioners 
are entitled to a hearing to prove the truth of their con­
tentions if their petition states an arguably good re­
moval. At the hearing the trial judge must specifically 
find the truth of the allegations; the mere fact that the 
motion to remand states an equally plausible claim is not 
grounds for remand. Walker v. Georgia, 405 F.2d 1191 
(5th Cir. 1968).

This Circuit has consistently refused to limit civil 
rights removal cases to the “unique” circumstances of 
Georgia v. Rachel, supra, where the petitioners were 
prosecuted for trespass when they had a clear federal 
right under Title II of the Civil Rights Act of 1964, 
42 U.S.C., Section 2000a et seq to be on the premises and 
to not be prosecuted for their presence. See, e.g., Walker 
v. Georgia, supra (Title II conduct; charge by the State 
of assault; held to be removable if peaceful use of prem­
ises proven); Wyche v. Louisiana, 394 F.2d 927 (5th 
Cir. 1967) (Title II conduct; charge by State of aggra­
vated burglary; held to be removable if “wrongful” pres­
ence in building due to race) ; Achtenberg v. Mississippi, 
393 F.2d 468 (5th Cir. 1968) (Title II conduct; charge 
by state of vagrancy; petition sustained) ; Whatley v. 
City of Vidalia, 399 F.2d 521 (5th Cir. 1968) (Voting



8

rights conduct; State charge not given; hearing to be 
held on truth of alleged conduct) .

The sole provisions that appellants can rely on, under 
Rachel and its progeny, are 42 U.S.C., Section 1981 and 
1983, both of which are specifically enumerated in the 
removal petition. Section 1981 was conceded by the 
Supreme Court to be a law providing for equal civil 
rights. Greenwood v. Peacock, supra, 384 U.S. at 515. 
But, in the Peacock decision, the Court held that the dif­
ference between 42 U.S.C., 1981-1983 and 42 U.S.C. 
2000a et seq was that the latter proviso contained a 
specific disclaimer as to as to any state interference.

Thus, under Peacock, it would seem that appellants 
must fail. So they did in Smith I. But, since that time, 
the Supreme Court, in Jones v. Mayer, 392 U.S. 407, has 
given new life to the Civil Rights Act of 1866, encom­
passing 1981 and 1983. If the new life is sufficient, then 
appellants must prevail.2

Jones v. Mayer interprets 42 U.S.C., Section 1982 to 
be extraordinarily broad, for the Court holds it to bar 
“ . . . all racial discrimination . . .” in the area covered by 
Section 1982. 392 U.S. at 414 (Emphasis by the Court). 
And, “ . . . the Act was designed to do just what its terms 
suggest: to prohibit all racial discrimination, whether or 
not under the color of law, with respect to the rights 
enumerated therein. . . .” 392 U.S. at 436. Section 1981, 
beyond a doubt, was part-and-parcel of Section 1982 
when they were first enacted, and is thus deserving of the 
same sweeping interpretation. The legislative history
20ne might note parenthetically that the passage of time has had an 
eroding effect on Peacock. See, Whatley v. City of Vidalia, supra, 399 F.2d 
at 522 (Removal invoking civil rights act enacted subsequent to the 
removal petitions in Peacock) .



9

tracing the evolution of the 1866 Acts into their present 
codified form is contained in Jones v. Mayer. See, e.g., 
392 U.S. at 422 n. 28.

It requires no great leap in the civil rights context to 
include suits designed to punish persons for exercising 
their equal civil rights within the ambit of those acts 
which might be called discriminatory. The fact that such 
suits may ultimately prove groundless does nothing to 
absolve the state court defendants, often poor and 
powerless, from undergoing a long ordeal for merely 
attempting to exercise rights guaranteed equally for all. 
The fact that the defendants may have ultimately pre­
vailed is of no consequence: the very fact of having to 
defend oneself in state courts in a racially discriminatory 
action is the reason for removal. Cf. Georgia v. Rachel, 
supra.

Since appellants’ removal petition set out a claim of 
infringement through the appellee’s law suit of United 
States laws providing for equal civil rights, they must 
be given opportunity to prove their claim. Remand with­
out such hearing was error.

II. The petition states an additional ground for re­
moval.

Appellants are not limited to a removal claim under 
the doctrine of Rachel and its progeny. The petition 
states an alternative ground for removal under Strauder 
v. West Virginia, 100 U.S. 303. The petition claimed 
that Georgia’s new jury selection act, set forth above, 
denied them their rights under the Fourteenth Amend­
ment since it delimited jurors to that class of persons 
who were actually registered to vote. This claim was 
never reached in Smith I, which made Strauder conten­



10

tions about the previous jury selection act (under which 
jurors were chosen from the tax digests, maintained on 
a racial basis). See, Whitus v. Georgia, 385 U.S. 545. 
Rather, the Court in Smith I disposed of the jury dis­
crimination claims on the ground of mootness, for Geor­
gia changed its selection act while the case was on appeal. 
Smith I, 382 F.2d at 13.

Thus, this Court has never passed on a claim that 
Georgia’s new act denies appellants their Strauder rights. 
While the petition on its face may not have set out a per­
fect Strauder claim, remand by the District Court with­
out hearing prevented appellants from coming forward 
with proof that they are denied or cannot enforce the 
federally protected right to be free of jury discrimination 
or segregation. Presumably, such proof would have gone 
in the direction of showing that the voters’ list was com­
piled from racially designated registration cards, pur­
suant to 34 Ga. Code Ann., Section 609 (1964), and 
that, as a result, the jury lists were in fact composed in 
a discriminatory fashion. The racial designation on the 
cards leads naturally into the sphere of unnecessary “op­
portunities to discriminate,” per Anderson v. Martin, 375 
U.S. 399. See also, Whitus v. Georgia, supra; Avery v. 
Georgia, 345 U.S. 559; Williams v. Georgia, 349 U.S. 
375.

The test, after all, under Strauder, is whether the state 
statute gives one “ . . . immunity from discrimination . . . 
in the selection of jurors. . . . ” Strauder v. West Virginia, 
supra, 100 U.S. at 312. Cf. Virginia v. Rives, 100 U.S. 
313, 320. The coupling of jury selection with forbidden 
racial identification in the sources of the jury, per state 
statute, makes for a good cause of removal.



11

The strength of appellants’ jury discrimination claim 
would only be strengthened had they been given an 
opportunity to put on their proof. Although Negroes 
made up 32% of the eligible population, there were 
only 4.8% on the jury rolls.

HI. The trial court erroneously taxed attorney’s fees 
against appellants.

Having erroneously granted the motion to remand, 
the Court’s determination that appellants must pay at­
torney’s fees must fall. However, assuming for the sake 
of argument that it was appropriate to remand in this 
instance, the Court’s award of attorney’s fees must still 
fall.

A. Appellants did not act in bad faith.

The Court below specifically found that appellants’ 
removal petition was “ . . . an action taken in bad faith 
with the obvious purpose and intent of simply frustrat­
ing the trial of the issues in the State Court.” (Order 
of November 25, 1968, p. 4) Seemingly, the bad faith 
can only be found in the fact that, in the eyes of the trial 
court, the Court of Appeals had already ruled adversely 
to all contentions made in the second removal petitioh.

Mere filing of a petition for removal cannot be an act 
of bad faith; otherwise, the simple exercise of a federal 
right which by its very nature frustrates state jurisdic­
tion would invariably lead to a finding of “bad faith.” 
Nor can filing an unsuccessful petition for removal be 
in and of itself an act of bad faith. Petitioners may fail 
in proof or in legal theory, but this says nothing of their 
intentions. Cf. Davis and Hazzard v. State of Alabama, 
399 F.2d 527 (5th Cir. 1968); Shuttlesworth v. City of



12

Birmingham, 399 F.2d 529 (5th Cir. 1968) (Removal 
on “no evidence” : theory fails) (Conviction ultimately
reversed, Shuttlesworth v. City of Birmingham,___
U .S .-----37 U.S. LAW WEEK 4203). Nor could the
bad faith in the instant case come from the timing of 
the removal, at the very instant before the state trial. 
The matter of time in a removal petition is not juris­
dictional, and objections on the ground of untimeliness 
are waived if not raised or mentioned in any way. Pacific 
R. Removal Cases, 115 U.S. 1; Weeks v. Fidelity br Cas. 
Co. of N.Y., 218 F.2d 503 (5th Cir. 1955).

The remaining “possible” ground for bad faith — that 
the petition was foreclosed by the decision of this Court 
in Smith I — must also fall. The arguments put forward 
in parts I and II, supra, may not prevail, but they are 
demonstrative that there are potential grounds for grant­
ing the instant petition which were not foreclosed by 
Smith I. It is by no means certain that the Court of 
Appeals ever gave full consideration to 59 Ga. Code 
Ann., Section 106 in Smith I, for the opinion clearly 
states that the claim has been mooted by the passage of 
time. Smith I, supra, 382 F.2d at 12. But, it is perfectly 
clear that Smith I  never considered the connection be­
tween the jury selection act and the requirement that 
those who register to vote state their racial identity. 
Regardless of appellants’ argument on the point prevail­
ing, it is abundantly clear that it is an argument not fore­
closed by Smith I.

The same reasoning must apply to appellants’ argu­
ment that Jones v. Mayer, supra, has expanded 42 U.S.C., 
Sections 1981 and 1983 into the type of laws providing 
for equal civil rights which are immune from state at­



13

tack. Jones v. Mayer was not decided until June 17, 1968, 
well after Smith I. The Jones v. Mayer argument was 
explicitly placed before the Court below in appellants’ 
motion to alter or amend, denied without opinion. To 
appellants’ knowledge, the claim has not been ruled on 
by any appellate court in any removal case.

B. Absent bad faith, awarding attorney’s fees is im­
proper.

The award of attorney’s fees is within the sound dis­
cretion of the trial court, but is subject to review. There 
have been few federal cases authorizing the payment of 
attorney’s fees. Cases such as Bell v. School Board of 
Powhatan County, 321 F.2d 494 (4th Cir. 1963) and 
Rolax v. Atlantic Coast Line R.R., 186 F.2d 473 (4th 
Cir. 1951) authorize such an award to a prevailing plain­
tiff only where a defense is maintained “in bad faith, 
vexatiously, wantonly, or for oppressive reasons.” 6 
Moore’s Federal Practice 1352. Nor is this the sort of 
case where the plaintiff has been forced to hire an attor­
ney on a contingent fee basis because of the actions of 
appellant. Vaughn v. Atkinson, 369 U.S. 527. Appellee 
already secured his attorneys on an unknown basis for his 
state suit — not for this federal action. Appellee and 
some of those same counsel have additionally sought, as 
“a self-appointed ombudsman,” to be compensated by 
the federal government. Smith v. United States, 375 F.2d 
243, 248 (5th Cir. 1967).

The absence of bad faith clearly takes this case out of 
the rationale of Bell and Rolax, supra. Indeed, the test 
has been so stiff within this Circuit that attorney’s fees 
have not been awarded in any school desegregation cases



14

— although there is an abundance of instances of recal­
citrance at least on the level of Bell.

C. Award of attorney’s fees without hearing was im­
proper.

Attorney’s fees were awarded in this case on the basis 
of pleadings alone. Presumably, the amount was de­
termined from the affidavit submitted by counsel for 
appellee. Appellants were never given an opportunity 
to question the sufficiency of that affidavit. The affidavit 
states only that counsel have spent many hours preparing 
for the state trial; that they will have to prepare again 
if the case is remanded; that they researched the law; 
that they filed a motion to remand; and that they believe 
$700.00 would be a “fair and reasonable” value of ser­
vices. (Affidavit in support of prayer for costs, para­
graphs 5-9) . At no point does the conclusionary affidavit 
ever set forth the actual number of hours expended by 
said attorneys, the rate they customarily charge, or the 
going rate among their brethren. Nor does the affidavit 
state how much of the research and preparation of mo­
tions and the like was actually done during the process­
ing of Smith I, wherein no costs were awarded.

These “loopholes” in the affidavit only emphasize the 
harm done to appellants by the failure to hold a hear­
ing. Such hearing would not have been a nullity. The 
Court below, after all, awarded exactly the amount re­
quested by appellee’s attorneys.

Costs in federal courts are “ in derrogation of the com­
mon law and in a sense penal in character.” Braun v. 
Hassenskin Steel Co., 23 F.R.D. 163, 167 (D.S.D. 1959). 
They are regulated exclusively by statute. Sioux County 
v. National Surety Company, 276 U.S. 238. To impose



15

such a penalty without the procedural safeguards of a 
hearing would be violative of the Due Process Clause of 
the Fifth Amendment. “To assess costs against the at­
torneys without notice and a hearing was, of course, 
wrong.” Miles v. Dickson, 387 F.2d 716, 717 (5th Cir. 
1967).

Lack of an opportunity to cross-examine and be heard 
renders the award of attorney’s fees against appellants 
void. Without a chance to be heard, the proceedings be­
come virtually ex parte in nature. But, “The value of a 
judicial proceeding . . .  is substantially diluted where the 
process is ex parte, because the Court does not have 
available the fundamental instrument for judicial judg­
ment: an adversary proceeding in which both parties 
may participate.” Carroll v. President and Commission­
ers of Princess Anne,____U .S .____ , 89 S.Ct. 347, 352-
353. In that case, as here, there was an absence of evi­
dence and argument on both sides; the award of attor­
ney’s fees here must fall as did the injunction there.

-TWA’



16

CONCLUSION

For all the foregoing reasons, the judgment of the 
Court below should be reversed.

/ s /  Pe t e r  E. R in d sko pf

C. B. K ing 
P. O. Box 1024A 
Albany, Georgia

H oward M oore, J r .
P e t e r  E. R in d sko pf  
859V2 Hunter Street, N.W.
Atlanta, Georgia BOS 14

J a ck  G reen ber g  
10 Columbus Circle 
New York, N. Y. 10019

ATTORNEYS FOR DEFENDANT- 
APPELLANTS



17

CERTIFICATE OF SERVICE

I, Peter E. Rindskopf, of counsel for appellants, 
hereby certify that I have this 16th day of April, 1969, 
served copies of the above and foregoing brief upon 
counsel for appellee by depositing the same in the 
United States mail, postage prepaid, addressed to Burt 
& Burt, D. D. Rentz, P. O. Box 525, Albany, Georgia.

/ s /  P e t e r  E. R in d sko pf

P e t e r  E. R in d sko pf



IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

NO. 27276

CARL SMITH,

Plaintiff-Appellee,

VERSUS

STUDENT NON-VIOLENT COORDINATING 
COMMITTEE, ET  AL,

Defendants-Appellants.

Appeal from the United States District Court 
for the Middle District of Georgia

APPENDIX



INDEX TO APPENDIX

Docket Entries_________________________________ la

Petition for Removal____________________________ 3a

Verification___________________________________ 9a

Bond _____  10a

Motion to Remand____________________________ 12a

M otion______________________________________ 13a

Exhibit A ____________________________________ 18a

Affidavit in Support of Prayer for Costs_____ ______20a

Memorandum Opinion and Order________________ 21a

Motion to Alter or Amend_____ .________________26a

Order on Motion to Alter or Amend______________ 34a

Page

i



Civ. 993 DOCKET ENTRIES
1968 Page
9-19 Filed Transcript from State Court 8c

Removal B ond________________________2-17
9-19 Initial Civil Card Report prepared.
9-19 Filed Answer of Defts. Slater King,

Marion Page, Samuel Wells, Emma Perry

[215]

and Thomas Chatmon__________________ 13-17
9-22 Filed Plaintiff’s Motion to Remand 8c

Motion to hold defendants in contempt___ 18-19
11-8 Filed Plaintiff’s Affidavit in support of

prayer for costs________________________27-28
11-21 Filed Defendants’ Memorandum Brief in 

Answer to Plaintiff’s Brief in Support of
Motion to Hold Certain defendants in 
contempt.

11-26 Filed Judge Elliott’s Memorandum
Opinion and Order Remanding Case to
State Court, and Granting Plaintiff
$700.00 as Attorney’s Fees______________29-33

11- 26 Closing Civil Card Report prepared.
12- 5 Filed Defendants’ Motion to Alter or

Amend Final Judgment 8c Order entered
11/25/68 8c Filed 11/26/68 ____________34-40

12-10 Filed Judge Elliott’s Order denying
Defendants’ Motion to Alter or Amend 
this Court’s Judgment 8c Order entered
11/25/68 ____________________________  41

12-23 Filed Notice of Appeal and Bond for
Costs on Appeal_______________________42-44

la



2a

DOCKET ENTRIES— (continued)
1969 Page

1- 2 Filed Appellants Designation of contents
of record on appeal------------------------- 212-213

1-20 Filed Motion challenging the array of
jurors in Dougherty Sup. Court by Student 
Nonviolent Coordinating Committee-----45- 49

1-20 Filed motion challenging the array of
jurors in Dougherty Sup. Court by Slater 
King, Samuel Wells, Emma Perry, Thomas
Chatmon and Albany Movement---------50- 54

1-20 Filed order overruling the above motions 
in Superior Court of Dougherty 
County, Ga. --------------------------------  55

1-20 Filed transcript of proceedings and on 
said Motions had in Dougherty 
Superior Court-----------------------------  56-211

A true and certified copy.

This Jan. 20, 1969.
J ohn  P. C ow art, C lerk

(Seal of Court)



3a

[2]

IN THE
UNITED STATES D ISTRICT COURT 

FOR TH E MIDDLE DISTRICT OF GEORGIA 
ALBANY DIVISION

CARL SMITH, 
Plaintiff-Respondent

vs.
STUDENT NON-VIOLENT 

COORDINATING 
COMMITTEE, THE ALBANY 
MOVEMENT, MARION PAGE, 

SAMUEL WELLS, W. G. 
ANDERSON, SLATER KING, 

EMMA PERRY, 
INDIVIDUALLY AND AS 

OFFICERS OF TH E ALBANY 
MOVEMENT, 

LU TH ER WOODALL, 
WILLIAM COLBERT, AND 

THOMAS CHATMON,

V.r

Defen dan ts-Pe titi oners

CIVIL ACTION

NO. 993

PETITION FOR REMOVAL
Defendants-petitioners, STUDENT NON-VIOLENT 

COORDINATING COMMITTEE, TH E ALBANY 
MOVEMENT, W. G. ANDERSON, SLATER KING, 
MARION PAGE, SAMUEL WELLS, EMMA PERRY, 
individually and as officers of the ALBANY MOVE­
MENT, and THOMAS CHATMON, pray that the 
above-styled civil action be removed from the Superior 
Court of Dougherty County, Georgia, to this Honorable 
Court pursuant to 28 U.S.C.A., Section 1443 (1) and 
(2), 42 U.S.C.A., Sections 1981, 1983, and the First and



4a

Fourteenth Amendments to the Constitution of the 
United States and stand so removed as provided for in 
28 U.S.C.A., Section 1446(e). As grounds therefor, de- 
fendants-petitioners show as follows:

1. The petition served upon the defendants-peti- 
tioners in the action commenced in the state court color- 
ably alleges facts which, if proved, state a civil action 
for money damages within the original jurisdiction 
of this Court as provided for in 28 U.S.C., Section 
1441 (a) and 42 U.S.C.A., Section 1985(2). A copy of 
the petition and process served on the defendants-peti- 
tioners is hereto attached, marked Exhibit “A.”

[3]
2. The defendants-petitioners cannot enforce and are 

denied in the courts of Georgia the federally provided 
right to be free of racial discrimination or segregation 
in the composition of the venire and the traverse jury 
to try the issues joined between the defendants-petition­
ers and the plain tiff-respondent. The jury commission­
ers of the several counties are directed by state statute 
to select the names of persons eligible for jury service in 
criminal and civil proceedings from the voters list of the 
respective counties which, pursuant to Title 59 Ga. Code 
Ann., Section 106 delimits the class from which jurors 
are selected on its face and as applied to the extent that 
it denies the petitioners the right to be tried by a cross 
section of the Dougherty County community in deroga­
tion of the equal protection clause of the Fourteenth 
Amendment, United States Constitution and laws of the 
United States made pursuant thereto providing for 
equal rights.

3. As will hereinafter be made to more fully appear,



5a

defendants-petitioners are being subjected to unlike pun­
ishment, pains, penalties, and exactions because of the 
race or color for acts done under color of authority de­
rived from laws of the United States providing for equal 
rights.

4. Defendant-petitioner Student Non-Violent Co­
ordinating Committee is an unincorporated association 
whose purpose is the securing of equal cultural, social, 
political and economic rights for all citizens. A copy of 
the suit which is attached hereto as Exhibit “A” was 
served on defendant-petitioner July 19, 1965.

5. Defendant-petitioner Albany Movement is an un­
incorporated association whose purpose is the achieve­
ment of equal rights for all citizens of the City of Al­
bany, Georgia. A copy of the suit which is attached 
hereto was served on the defendant-petitioner July 17, 
1965.

[4]

6. Defendants-petitioners Slater King, Marion Page, 
Samuel Wells, Emma Perry, and Thomas Chatmon were, 
at all times herein mentioned, associated with the said 
Albany Movement and participated in various ways.in 
its programs for achieving equal rights for all citizens of 
Albany, Georgia. All of the individual defendants-peti­
tioners except Slater King, who was served with a copy 
of the attached suit on July 16, 1965, were served on 
July 17, 1965.

7. All of the individual defendants-petitioners are 
members of the Negro race. They have on various oc­
casions, individually and in co-operation with others, 
sought through the exercise of their rights to free speech



6a

and peaceful protest under the First and Fourteenth 
Amendments to the Constitution of the United States 
to promote the cause of full equality, political, legal and 
economic, of the Negro citizens of the City of Albany, 
Georgia. They have done this through the means of 
peaceful demonstrations directed both against denials of 
equal protection by public officials of Albany and against 
acts of private persons that discriminated against Negroes 
in employment and in full use of public accommoda­
tions.

8. Carl Smith, plaintiff-respondent, at all times herein 
material, was the owner of the Foodland Supermarket in 
Albany, Georgia.

9. On or about April 20, 196S through April 23, 
1963, certain persons conducted a campaign of picketing 
plaintiff-respondent’s grocery store in order to protest his 
discriminatory employment practices. Sometime prior to 
this date, the plaintiff-respondent had been asked by 
members of the Negro community if he would hire Ne­
groes on a non-discriminatory basis in his store, since a 
substantial portion of his customers were Negroes. Al­
though he indicated to them that he would hire a Negro 
cashier, he stated at other times to other persons that 
[5] he would never do so. Of the defendants named in 
this suit, only Luther Woodall, William Colbert, and 
W. G. Anderson, none of whom have been served, were 
in any way involved in the picketing of plaintiff-respon­
dent Carl Smith’s Foodland Grocery.

10. For these reasons, the purpose of the suit brought 
in the State Court against the defendants-petitioners is 
to harass, intimidate and obstruct them in the exercise 
of their constitutionally protected right to freedom of



7a

speech and peaceful protest against racially discrimina­
tory policies in the City of Albany, Georgia, and thus to 
deny them their rights under 42 U.S.C., Section 1981.

11. The activities involved in this suit are within the 
constitutionally protected exercise of the rights of free­
dom of speech and of peaceful assembly, as guaranteed 
by Amendments 1 and 14 to the Constitution of the 
United States and 42 U.S.C., Section 1983. The instant 
suit against defendants-petitioners has punished and will 
punish them for the exercise of rights, privileges and 
immunities secured them by the Federal Constitution 
and laws of the United States and has deterred and will 
deter them and others similarly situated from the future 
exercise of these rights, for if the laws of the State of 
Georgia under which they are held to answer make their 
conduct actionable, those laws are unconstitutional as 
applied. By reason of the foregoing defendants-petition­
ers are denied those rights by pendancy of this action in 
the courts of the State of Georgia, and thus this action 
is removable pursuant to 28 U.S.C., Section 1443 (1).

12. Bond with good and sufficient security is filed 
herewith.

WHEREFORE, defendants-petitioners pray that the 
above-styled civil action be removed from the Superior 
Court of [6] Dougherty County, Georgia to this Court 
pursuant to 28 U.S.C., Section 1443, 42 U.S.C., Sections



8a

1981, 1983, 1985 and the First and Fourteenth Amend­
ments of the Constitution of the United States.

/ s /  C. B. K ing

C. B. K ing, Esq.
Post Office Box 1024 
Albany, Georgia 31702

H oward M oore, J r ., E sq .
859% Hunter Street, N.W.
Atlanta, Georgia

J a ck  G r e en b er g , E sq . and 
C h a rles  St e p h e n  R a lsto n , E sq .
10 Columbus Circle 
New York, N.Y. 10019

Attorneys for Defendants-Petitioners

*  # #



9a

GEORGIA, DOUGHERTY COUNTY

VERIFICATION
Now comes the undersigned Defendants-petitioners in 

the above-captioned case before one who is authorized 
under the laws of this state to administer oaths, who 
depose and say under oath that the foregoing allega­
tions are true and correct.

/ s /  S la t e r  K ing

[7]

S la t e r  K ing

Sa m u e l  W e l l s

M arion  P age 

/ s /  M r s . E m m a  S. P erry

E m m a  P erry  

/ s /  T hom as C h atm on

T hom as C h a tm o n

Sworn to and subscribed before me 
this 19th day of September, 1968.

/ s /  G lo ria  L . W iggins 

Notary Public
My commission expires Aug. 20, 1971.



10a

BOND
Know all men by these presents, that we, SLATER 

KING, SAMUEL WELLS, EMMA PERRY, and 
THOMAS CHAPMAN, the above-named defendants, as 
principals, and C. W. KING, as surety, are held and 
firmly bound to CARL SMITH, plaintiff, in the above- 
entitled cause, his heirs and assigns in the sum of $200, 
lawful money of the United States of America, for the 
payment of which, well and truly to be made, we, and 
each of us, bind ourselves, our heirs, executors and ad­
ministrators, jointly and severally by these presents.

The condition of this obligation is such that:
Whereas, SLATER KING, SAMUEL WELLS, 

EMMA PERRY and THOMAS CHAPMAN have ap­
plied by petition to the United States District Court for 
the Middle District of Georgia, Albany Division, for the 
removal of a certain cause pending in Superior Court of 
Dougherty County wherein CARL SMITH is plaintiff 
and SLATER KING, SAMUEL WELLS, EMMA 
PERRY and THOMAS CHAPMAN are defendants, to 
the United States District Court, for the Middle District 
of Georgia, Albany Division, for further proceedings on 
the grounds in said petition set forth:

Now, therefore, if petitioners, defendants SLATER 
KING, SAMUEL WELLS, EMMA PERRY and 
THOMAS CHAPMAN, shall pay all costs and disburse­
ments incurred by reason of the removal proceedings if 
it should be determined that the cause was not removable 
or was improperly removed to the district court, then 
this obligation shall be void; otherwise it shall remain 
in full force and effect.

[16]



11a

In witness whereof, we, the principals and surety, have 
caused this instrument to be executed and our hands and 
seals [17] affixed thereto this 19th day of September, 
1968.

/ s /  S la t e r  K ing

S la t e r  K ing

Sa m u e l  W e l l s  

/ s /  M rs . E m m a  S. P erry

E m m a  P erry  

/ s /  T hom as C h atm on

T hom as C h a tm o n

By: C. B. K ing

Agent and Attorney, Principal 

/ s /  C. W. K ing

Surety



12a

MOTION TO REMAND
Comes now plaintiff-respondent and moves the Court 

to remand the within cause to the Dougherty Superior 
Court and for grounds shows as follows:

1. The within cause was previously removed to this 
Court on August 6, 1965 (Civil Action No. 859, Albany 
Division) and was remanded to Dougherty Superior 
Court by order of this Court on September 2, 1965. The 
order of this Court was appealed to the United States 
Court of Appeals for the Fifth Circuit, and that Court 
affirmed at 382 F.2d 9. On September 22, 1967, this 
Court entered an order adopting the mandate of the 
Fifth Circuit Court of Appeals. The propriety of re­
moval of this case has thus already been resolved adverse 
to removal.

2. The petition for removal is not verified by de­
fendants Mation Page and Samuel Wells, nor does veri­
fication appear on behalf of The Albany Movement and 
Student Non-Violent Coordinating Committee. All of 
these defendants were served, and are parties to this ac­
tion.

3. The defendants have waived the right of removal 
by [19] filing various motions, and attending pretrial 
conferences in the Dougherty Superior Court after the 
case was previously remanded to said Court.

WHEREFORE, plaintiff- respondent prays that said 
cause be remanded again to the Dougherty Superior 
Court and that all costs and counsel fees be taxed against 
the defendants-petitioners.

B u rt  and  B u rt  
D. D. R entz

[18]



13a

MOTION
Carl Smith, Plaintiff-Respondent in the action, shows 

the Court as follows:
1. Plaintiff filed an action for $200,000.00 damages 

and $100,000.00 punitive damages against the above 
named defendants in Dougherty Superior Court on July 
15, 1965, same being No. 559.

On August 6, 1965, the above named defendants 
through their attorneys, including Attorney C. B. King, 
removed said action to this Court. As ground for said 
removal, the above defendants alleged the following:

“The defendants-petitioners cannot enforce and are 
denied in the courts of Georgia the federally pro­
vided right to be free of racial discrimination or 
segregation in the composition of the venire and the 
traverse jury to try the issues joined between the 
defendants-petitioners and the plaintiff-respondent. 
The jury commissioners of the several counties are 
directed by state statute to select the names of per­
sons eligible for jury service in criminal [21] and 
civil proceedings from the tax digests of the re­
spective counties which, pursuant to Title 92, Ga. 
Gode Ann., Sec. 6307, are maintained and organized 
on the basis of race or color. As a consequence of 
the above described illegal state action, the state 
created procedures are weighed in favor of exclusive 
white representation on juries in Dougherty County, 
Georgia in derogation of the equal protection clause 
of the Fourteenth Amendment, United States Con­
stitution and laws of the United States made pur­
suant thereto providing for equal rights.”

On September 7, 1965, this Court filed an order re­
manding said action to the Dougherty Superior Court.

[ 2 0 ]



14a

Said defendants appealed said order and judgment to 
United States Court of Appeals for the Fifth Circuit. On 
August 23, 1967, said Court of Appeals entered a judg­
ment affirming this Court’s order remanding said ac­
tion, and on September 14, 1967 said Court of Appeals 
issued said judgment of August 23, 1967 as mandate.

On September 22, 1967, this Court made the said 
judgment issued as and for the mandate, the judgment 
and order of this Court, which was filed on September 
25, 1967, copy of same is marked Exhibit “A”, attached 
hereto and made a part hereof.

Exhibit “A” was filed in Dougherty Superior Court on 
November 29, 1967.

On October 13, 1967, the above named defendants 
filed defensive pleadings to said action in Dougherty 
Superior Court. At the July Term 1968, said action was 
set for trial, but continued at request of one of defen­
dant’s counsel. Numerous [22] depositions were taken 
in Dougherty Superior Court by both parties, interroga­
tories were propounded by plaintiff to defendants.

On July 1968, said action was set by Dougherty 
Superior Court for trial on September 23, 1968, and all 
parties were notified to be present at 9 A. M. on Septem­
ber 19, 1968 at Federal Courtroom to strike a jury. On 
August 20, 1968, a pre-trial hearing was held by the 
Court. Thereafter, defendants filed a motion challenging 
the array of the Dougherty Superior Court jury, which 
was overruled by the Court on September 3, 1968.

on September 19, 1968 at 9 A. M., plaintiff and his 
counsel were present to strike a jury, when defendants’ 
attorney, C. B. King, approached the bench and moved



15a

the Court to continue the case due to a heart condition 
of defendant, Marion Page. Attorney King submitted a 
letter from Dr. Tom Johnson verifying said heart con­
dition. Plaintiff’s counsel requested an opportunity to 
examine Dr. Johnson, as plaintiff’s counsel contended 
that defendant Page’s heart condition was long standing 
and his condition would not improve at any subsequent 
trial term. The Court ordered a hearing at 1:30 P. M. 
on September 19, 1968 in order that Dr. Johnson might 
be examined. At said hearing said Doctor verified that 
defendant Page’s heart condtion dated back to 1959, and 
became worse each year, and he would never be able to 
appear in Court. The Court granted defendants’ motion 
to continue said action. Plaintiff agreed to strike de­
fendant Page if the Court would go forward with the 
trial as scheduled. Attorney C. B. King then asked that 
the Court postpone the striking of the jury until he 
could examine the Court papers in [23] said action. 
Said request was granted by the Court and all parties 
were instructed to be present at 3:30 P. M. on Septem­
ber 19, 1968 to strike a jury. At said time plaintiff and 
his counsel were present to strike a jury when at ap­
proximately 3:40 P. M. on said date, the said C. B. King 
walked into the Courtroom and delivered the Court a 
copy of a petition to remove said action to this Court, 
filed a few minutes earlier. The Dougherty Superior 
Court refused to proceed with the striking of the jury, 
notwithstanding plaintiff’s counsel’s insistence that de­
fendants and their attorney C. B. King were trifling with 
the Court, and obviously violating and ignoring the or­
der of this Court remanding said action. The Dougherty 
Superior Court ruled that since the case had been re­



16a

moved, it lost jurisdiction, and any relief would have 
to be obtained in this Court.

The petition for removal alleged the following:

“The defendants- petitioners cannot enforce and are 
denied in the courts of Georgia the federally pro­
vided right to be free of racial discrimination or 
segregation in the composition of the venire and 
the traverse jury to try the issues joined between 
the defendants-petitioners and the plaintiff-respon­
dent. The jury commissioners of the several coun­
ties are directed by state statute to select the names 
of persons eligible for jury service in criminal and 
civil proceedings from the voters list of the re­
spective counties which, pursuant to Title 59 Ga. 
Code Ann., Section 106 delimits the class from 
which jurors are selected on its face and as applied 
to the extent that it denies the petitioners the right 
to be tried by [24] a cross section of the Dougherty 
County community in derogation of the equal pro­
tection clause of the Fourteenth Amendment, United 
States Constitution and laws of the United States 
made pursuant thereto providing for equal rights.”

Plaintiff respectfully shows this Court that Attorney 
King and defendants openly and wilfully disobeyed and 
violated the order of this Court remanding said action 
to State Court by filing said petition to remove on Sep­
tember 19, 1968. Said petition to remove was filed solely 
to thwart plaintiff’s legal right to try said action, and 
said petition is capricious, wholly without merit, and the 
said King and defendants Slater King, Emma Perry and 
Thomas Chatmon (all of whom signed said petition to 
remove) are in contempt of this Court.

3. Plaintiff has been damaged by said action of C. B. 
King and defendants Slater King, Emma Perry and



17a

Thomas Chatmon in the sum of $1,500.00, and the addi­
tional sum of $1,250.00 as attorneys’ fees to prosecute 
the contempt proceeding and plaintiff’s motion to re­
mand said action.

WHEREFORE, Carl Smith, plaintiff-Respondent, 
moves the Court for an order requiring C. B. King and 
defendants to answer this motion, and show cause why 
the said King and said defendants should not be ad­
judged in contempt of this Court, and upon return of 
said order, to adjudge C. B. King and defendants Slater 
King, Emma Perry and Thomas Chatmon in contempt 
of this Court for having violated and disregarded an 
order of this Court, and to order that the said King and 
defendants pay the sum of Two Thousand Seven Hun­
dred Fifty Dollars ($2,750.00) as damages occasioned by 
such contempt, [25] and for such other and further re­
lief as to this Court seems just.

B u rt  and  B u rt

D. D. R en tz



18a

EXHIBIT “A”

(Filed at 9:00 A.M. Sept. 18, 1967; /s /  Dorothy F. 
Motes, Dep. Clerk, U.S. Dist. Court)

UNITED STATES COURT OF APPEALS 
For The Fifth Circuit

October Term, 1965 

No. 23114

D. C. Docket No. CA. 859

STUDENT NON-VIOLENT COORDINATING 
COMMITTEE, ET AL.,

Appellants,
VERSUS

CARL SMITH,
Appellee.

[26]

Appeal from the United States District Court for the 
Middle District of Georgia

Before BROWN, Chief Judge, COLEMAN, Circuit 
Judge, and DAWKINS, District Judge.

JUDGMENT
This cause came on to be heard on the transcript of 

the record from the United States District Court for the 
Middle District of Georgia, and was argued by counsel 
for appellants, and was taken under submission by the 
Court upon the record and briefs on file for appellee;



19a

ON CONSIDERATION WHEREOF, It is now here 
ordered and adjudged by this Court that the judgment 
of the said District Court in this cause be, and the same 
is hereby, affirmed;

It is further ordered and adjudged that the appellants, 
Student Non-Violent Coordinating Committee, and 
others, be condemned, in solido, to pay the costs of this 
cause in this Court for which execution may be issued 
out of the said District Court.

August 23, 1967
Issued as Mandate: Sept. 14, 1967 
A true copy

Test: E dward W. W adsw orth ,
Clerk, U. S. Court of Appeals,
Fifth Circuit

By: / s /  J a ck ie  E sposito ,
Deputy, Sept. 14, 1967

New Orleans, Louisiana

ORDER
The within judgment of the U. S. Court of Appeals 

for the Fifth Circuit, issued as and for the mandate, is 
hereby made the judgment and order of this Court. This 
Sept. 22, 1967.

/s / J .  R o be r t  E l l io t t

U. S. District Judge

Above Order filed: 8:30 A.M., Sept. 25, 1967. 
/s /  K a th ryn  T. C a m p b e l l ,

Deputy Clerk, U. S. District Court



20a

[27]
AFFIDAVIT IN SUPPORT OF PRAYER 

FOR COSTS IN PLAINTIFF-RESPONDENT’S 
MOTION TO REMAND

Come now H. P. Burt and D. D. Rentz who; after 
being duly sworn, depose and say, as follows:

1. That they are counsel of record for plaintiff-re­
spondent in the above captioned cause.

2. On September 22, 1967, this Court made the judg­
ment of the United States Court of Appeals affirming a 
remand order the judgment of this Court.

3. On September 19, 1968, this case was set for trial 
in Dougherty Superior Court and the plaintiff was set 
to strike a jury when the defendants’ filed another Peti­
tion for Removal to this Court.

4. The latest Petition for Removal is almost identical 
to the previous one which was held not to state grounds 
for removal by this Court and the United States Court 
of Appeals for the Fifth Circuit.

[28]
5. The plaintiff and his counsel had expended many 

hours of preparation for the trial of said cause in Dough­
erty Superior Court before defendants filed their latest 
Petition for Removal.

6. If this case is remanded again, plaintiff and plain­
tiff’s attorneys will be required to go through extensive 
trial preparation again.

7. When the latest petition for removal was filed, 
undersigned, as counsel for plaintiff, researched the law 
with respect to removal after a previous removal and 
examined all records pertaining to said case in the



21a

Clerk’s office of this Court and the Clerk’s office of 
Dougherty Superior Court.

8. Undersigned prepared and filed an application for 
remand of said cause to Dougherty Superior Court.

9. Undersigned verily believes that the sum of 
$700.00 is a fair and reasonable value of the legal ser­
vices performed by undersigned as a result of this latest 
Petition for Removal by defendants.

Further, deponent sayeth not.

MEMORANDUM OPINION AND ORDER ON 
PETITION FOR REMAND

This is the second removal of this case by the Defen­
dants from the Superior Court of Dougherty County, 
Georgia to this Court and for the second time the case 
will be remanded to the State Court.

A review of the previous record and an examination 
of the pleadings, affidavits and briefs on file in connec­
tion with this most recent removal shows the following 
to be a history of this matter.

The Plaintiff filed his action for damages against the 
Defendants in the Superior Court of Dougherty County, 
Georgia on July 15, 1965. On August 6, 1965 the De­
fendants removed said action to this Court,1 alleging as 
a basis for removal that they [30] could not obtain a 
fair trial in the State Court because of the manner in 
which the jury lists in the State Court were compiled. 
On September 7, 1965 this Court entered its order re­
manding the action to the Dougherty Superior Court. 
The Defendants then appealed the order and judgment
iCivil Action No. 859.



22a

of this Court to the United States Court of Appeals for 
the Fifth Circuit. On August 23, 1967 the Court of 
Appeals entered its judgment affirming this Court’s re­
mand order2 and on September 22, 1967 this Court made 
the judgment of the Court of Appeals the order of this 
Court and the case was thereby effectively remanded to 
the State Court.

On October 13, 1967 the Defendants filed defensive 
pleadings to said action in Dougherty Superior Court. 
The action was set for trial in Dougherty Superior Court 
at the July term, 1968, but was continued at the request 
of one of Defendants’ counsel. A number of depositions 
had been taken and various interrogatories had been 
propounded and answered by the parties. The matter 
was set down for trial at the September, 1968 term and 
all parties were notified to be present for trial of the case, 
which was set for September 19, 1968. Preliminary to 
the date set for trial a pre-trial hearing was held by the 
State Court.

When the case was called for trial in the State Court 
on September 19, 1968 Counsel for the Defendants asked 
the Court to postpone the striking of a jury until further 
examination could be made of the pleadings and the 
State Court granted the request, postponing the striking 
of a jury until 3:30 p.m. on September 19. When that 
hour arrived on that date Counsel for the Defendant de­
livered to the State Court a copy of a petition to remove 
said [31] action again to this Court, which petition 
for removal had been filed in this Court a few moments 
earlier. Since the case was again removed the State Court 
Judge did not proceed with the trial.

2382 F.2d 9.



23a

This second removal petition is based upon substan­
tially the same theory as was urged in the first removal 
petition. The Defendants again assert that because of 
the provisions of a Georgia statute defining the manner 
and means of selecting jurors in the State Courts the 
Defendants are deprived of the equal protection of the 
laws.

This Court found this contention to be without merit 
when this case was first removed and this Court again 
finds this contention to be without merit. The Defen­
dants point out that since the filing of the first removal 
petition the Georgia General Assembly has amended the 
pertinent section of the Georgia Code to provide that 
jury lists shall be selected from the official registered 
voters lists in the various counties and that since the 
statutory provision has now been changed the ground 
for this new removal petition has not had the considera­
tion of this Court or of the Court of Appeals.

It need only be pointed out that while the Defendants’ 
appeal was pending in the Court of Appeals for the Fifth 
Circuit the Georgia statute was modified and the Court 
of Appeals took notice of this modification in the second 
and third divisions of its opinion, and after citing the 
new Georgia statute the Court of Appeals said:

[32]
"The result is that measuring today the pro­

priety of an earlier remand of a case we must reckon 
with the fact that this ground for removal no longer 
exists. No longer is there the requisite state statute 
on which to base the prediction that the parties will 
be denied or cannot enforce in the state courts the 
federally recognized right to a trial free of racial 
discrimination.



24a

“With the cases back in the state court there is 
no statute which will deny the federal right. Like­
wise, there is now no statute which makes enforce­
ment of that right in the state courts unobtainable. 
If impermissible discrimination occurs it will come, 
not from the statutory scheme, but from maladmin­
istration. Removal under §1443(1) is not the rem­
edy for that.”

It thus clearly appears that the Court of Appeals has 
already ruled adversely to the contentions here made 
by the Defendants.

There was no basis for the second removal of this case 
to this Court. Accordingly, it is considered, ordered and 
adjudged that the case be and the same hereby is re­
manded to the Superior Court of Dougherty County, 
Georgia, the court from which it was removed.

The Court finds that this second removal of this case 
from the State Court to this Court was not an action 
taken by the Defendants in good faith, but was, on the 
contrary, an action taken in bad faith with the obvious 
purpose and intent of simply frustrating the trial of the 
issues in the State Court. By this action the Defendants 
have caused the Plaintiff unnecessary trouble and ex­
pense, among which are expense of representation by 
counsel in combatting this removal action, in the prep­
aration [33] of petition for remand, affidavits and briefs 
in support thereof, and in the circumstances the Court 
determines that the Plaintiff is entitled to recover from 
the Defendants as a part of his reasonable costs an 
amount of $700.00 as attorney’s fees, together with such 
other costs as may be appropriately determined by the 
Clerk, for all of which let execution issue.



25a

IT  IS SO ORDERED this 25th day of November, 
1968.

/ s /  J. R o bert  E l l io t t

United States District Judge



26a

[34]

MOTION TO ALTER OR AMEND FINAL 
JUDGEMENT AND ORDER ENTERED IN THIS 

MATTER ON NOVEMBER 25, 1968
Comes now the defendants in the above-captioned 

matter and move this court for an order altering or 
amending its order entered November 25, 1968 pursuant 
to Rule 59 (e) of the Federal Rules of Civil Procedure. 
Defendants show as reasons therefor that:

I

Defendants petitioned this court on September 19, 
1968 for the removal of this matter pursuant to 28 
U.S.C., Section 1443(1), 42 U.S.C.A., Section 1981, 
1983 and the First and Fourteenth Amendments to the 
Constitution of the United States. Said petition was 
neither frivolous nor made in bad faith but rather was 
based on new and sufficient grounds to support the 
petition.

A. The said removal petition urged upon this Hon­
orable Court the following propositions:

1. The defendants-petitioners cannot enforce and 
are denied in the courts of Georgia the federally pro­
vided right to be free of racial discrimination or 
segregation in the composition of the venire and 
the traverse jury to try the issues joined between 
the defendants-petitioners and the plaintiff-respon­
dent; That the jury commissioners of the several 
counties are directed by [35] state statute to select 
the names of persons eligible for jury service in 
criminal and civil proceedings from the voters list



27a

of the respective counties which pursuant to Title 
59 Ga. Code Ann., Section 106 delimits the class 
from which jurors are selected on its face and as 
applied to the extent that it denies the petitioners 
the right to be tried by a cross section of the Dough­
erty County community in derogation of the equal 
protection clause of the Fourteenth Amendment, 
United States Constitution and laws of the United 
States made pursuant thereto providing for equal 
rights.

2. That as will hereinafter be made to more fully 
appear, defendants-petitioners are being subjected 
to unlike punishment, pains, penalties, and exac­
tions because of their race or color for acts done 
under color of authority derived from laws of the 
United States providing for equal rights.

B. The aforesaid removal petition was the second of 
two removal petitions filed in this action. This said peti­
tion followed an earlier decision by the United States 
Court of Appeals for the Fifth Circuit in which a re­
mand order of this court of this action to the Dougherty 
County Superior Court was sustained. The Appellate 
Court, in dealing with the two asserted grounds of de­
fendants in their first petition, ruled that:

1. Plaintiff’s assertion that the real purpose of this 
suit was to harass, intimidate and obstruct the de­
fendants’ exercise of their constitutionally protected 
right of freedom of speech and peaceful protest 
against racially discriminatory policies in the City 
of Albany was not a sufficient ground to support 
defendants removal petition because it did not sat­
isfy the RACHEL standard of “a statute providing



28a

for specific civil rights stated in terms of racial 
equality.” Therefore said the court, ‘‘Remand on 
this score was proper; and that

2. Time and outside events had mooted defendants 
assertion that (a) The mandatory use of the race- 
indicated tax digest to [36] make up the jury list 
provided for by statute was itself an invalid statu­
tory structure, and

(b) that as such this statute serves as a prediction 
that the right to a trial by jury free from racial ex­
clusion would be denied or could not be enforced 
in the state courts.

C. Defendants respectfully urge that defendants’ sec­
ond petition is supported by new grounds for removal, 
which have not been decided by this court; that

1. The aforesaid state statute, passed by the Geor­
gia State Legislature while defendants’ first petition 
for removal of this action was pending before the 
Court of Appeals [See 1(A) (1) ], like the first 
Georgia State Statute that was in force at the time 
of the first removal petition filed in this matter by 
the defendants, both on its face and as applied is 
in conflict with the equal protection clause of the 
Fourteenth Amendment, the United States Consti­
tution and laws of the United States made pursuant 
thereto providing for equal rights;

2. That the decision of the Supreme Court of the 
United States in Jones v. Mayer, (1968) 392 U.S. 
407 prior to this matter having been called for trial 
strengthens and broadened the reach and construc­
tion of the Civil Rights Act of 1866 inclusive of



29a

42 U.S.C.A., Section 1981, 1982, and 1983, and 
in effect overrules Rachel and Peacock which the 
Court of Appeals relied upon holding that these 
two cases require the allegation of the invalidity of 
an actual state statute in order to support a petition 
for removal. Thus the decision of Jones v. Mayer, 
defendants respectfully urge, makes this court’s de­
cision and that of the Court of Appeals on the suf­
ficiency of defendants’ first petition subject to re­
consideration;

3. That the Appellate Court in its decision on 
defendants’ first petition for removal did not deal 
with the validity of Georgia Code Annotated Sec­
tion 59-106 (Acts 1967, P. 251) but merely noted 
that it mooted the question raised by defendants as 
to the validity of [37] that specific prior statute 
which was in force at the time of defendants’ first 
removal petition.

II
Evidence adduced at a pretrial hearing on September 

3, 1968 in The Superior Court of Dougherty County on 
defendants’ motion challenging the array of jurors, a 
transcript of such evidentiary hearing being a part of 
record before this court, shows conclusively, the defen- 
dants-movants submit, that jury discrimination is still 
rampant in Dougherty County, Georgia, and;

A. That all of the jury commissioners of Dough­
erty County are Caucasian and the office of Jury 
Commissioner in said county has not been occupied 
by any member of the Negro race for a period ex­
ceeding fifty years;

B. That the defendants are entitled under the



30a

Constitution of the State of Georgia, the Consti­
tution of the United States and federal law pursuant 
thereto, to be free of racial discrimination or seg­
regation in the composition of the venire and tra­
verse jury to try issues joined between defendants 
and plaintiff;

C. That the present system of jury selection in 
Dougherty County, Georgia, pursuant to Georgia 
Code Annotated Section 59-106 (Acts 1967, P. 
251), as applied to defendants, does not secure 
to defendants freedom from racial discrimination 
or segregation in the composition of the venire and 
traverse jury, but in fact is heavily weighted in 
favor of exclusive white representation on juries in 
said county;

D. That 27,567 white persons of the age of twenty- 
one and over reside in Dougherty County, and 
12,489 black persons of the same age group reside 
in said county;

E. That there are on the jury lists for Dougherty 
County the names of 2,033 white persons, whereas 
there are only 101 Negroes so represented;

F. That notwithstanding 32% of the total male 
population of the age of twenty-one and over in 
Dougherty County is Negro, only 4.8% [38] of the 
present jury list is composed of Negro citizens of 
said county;

G. That the great disparity between the number 
of Negroes residing in Dougherty County, Georgia 
and the number of Negroes represented on the 
jury list of said county as indicated in paragraphs



31a

“D” and “E” , demonstrates racially discriminatory 
application of Ga. Code Ann. Section 59-106 (Acts 
1967, P. 251) by the jury commissioners of said 
County; and

H. That because of the above described discrim­
inatory practice and effect in the promulgation of 
the list of prospective jurors from whose number 
the venire and ultimately the traverse jury to try 
this case will be drawn, defendants are deprived of 
due process of law and denied the equal protection 
of the laws under the Fourteenth Amendment of 
the United States Constitution, the laws of the 
United States in furtherance of said Amendment, 
specifically Title 18 U.S.C.A., Section 2-102, in that 
Negro residents of Dougherty County, Georgia are 
not fairly represented on but are and have been in 
fact systematically excluded from said jury list, 
thereby depriving defendants of the opportunity of 
securing a fair and impartial jury to try their case 
in the State Court.

Ill

Defendants respectfully urge that this court erred in 
failing to provide defendants with a hearing as to the 
sufficiency of allegations made in its petition for removal 
before entering an order to remand this matter to the 
State Court.

A. General Right to Hearing

A fundamental requisite of due process of law is 
the opportunity to be heard. This opportunity 
must be provided at a meaningful time and in a 
meaningful manner. Armstrong v. Manzo, 85 S. Ct.



32a

1187, 380 U.S. 545 (1965). It is required that an 
opportunity to be heard be provided before the 
reaching of a judgement for juegement without 
opportunity to be heard is [39] judicial oppres­
sion. The “hearing”required by “Due Process of 
Law’’ must include an opportunity to make oral 
argument, on every question of law raised before 
a judicial or quasi-judicial tribunal. Said hearing 
refers not only to a hearing on the truth of alle­
gations made, but also to hearing on questions of 
law as to sufficiency of allegation made by com­
plainant. The due process law guarantee of hear­
ing draws no distinction between questions of law 
and questions of fact. W.J.R. The Goodwill Sta­
tion v. Federal Communications Commission, 174 
F. 2d 226, 84 U.S. App. D.C. 1 (1949) ; L. B. Wil­
son, Inc. v. Federal Communication Commission, 
170 F. 2d 793, 83 U.S. App. D.C. 176 (1949).

B. Specific Right to Hearing on Petition for Removal 
To be entitled to remove a civil rights case from 
a state court to the appropriate federal court under 
28 USC Section 1443 (1) a defendant must show 
both that the right upon which he relies is a 
“right under any law providing for . . . equal civil 
rights,” and that he is denied or cannot enforce 
that right in the state courts.

Upon a removal petition which if its assertions 
are true, justifies the removal under 28 USC Sec­
tion 1443 (1) . . .  to the appropriate United States 
District Court must order a hearing . . . State of 
Georgia, Petitioner v. Rachel, et al., (1966) 384 
U.S. 780, 86 S.Ct. 1783, 16 L. Ed. 2d 925. In con­



33a

sequence of Rachel there be little doubt of de­
fendants entitlement to hearing.

C. Punitive Determination Of Court

The assessment of $700. Attorney’s fees against 
defendants for having petitioned this court for re­
moval in “bad faith” without a hearing constitutes 
the deprivation of property without due process 
of law in violation of the Fourteenth Amendment 
of the United States Constitution.

[40]

WHEREFORE, defendants respectfully urge this 
court to alter or amend its judgement in accordance 
herewith.

Respectfully submitted this 5th day of December, 
1968.

/ s /  C. B. K ing

C. B. K ing

Attorney for Defendants



34a

ORDER ON DEFENDANTS’ MOTION TO ALTER
OR AMEND THIS COURT’S JUDGMENT AND 
ORDER ENTERED ON NOVEMBER 25, 1968

Upon consideration, the Defendants’ motion to alter 
or amend this Court’s judgment and order entered in 
this matter on November 25, 1968 remanding this case 
to the Superior Court of Dougherty County, Georgia is 
denied.

IT  IS SO ORDERED this 9th day of December, 1968.

[41]

J .  R o be r t  E l l io t t  
United States District Judge