Georgia v. Rachel

PETITIONER:Georgia
RESPONDENT:Rachel
LOCATION:Juvenile Court

DOCKET NO.: 147
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 384 US 780 (1966)
ARGUED: Apr 25, 1966 / Apr 26, 1966
DECIDED: Jun 20, 1966

Facts of the case

Question

  • Oral Argument – April 25, 1966
  • Audio Transcription for Oral Argument – April 25, 1966 in Georgia v. Rachel

    Audio Transcription for Oral Argument – April 26, 1966 in Georgia v. Rachel

    Earl Warren:

    Georgia, Petitioner, versus Thomas Rachel et al.

    Mr. McPherson, had you finished your argument?

    George K. McPherson, Jr.:

    I had, Mr. Chief Justice.

    Earl Warren:

    Very well.

    Mr. Sparks, you may proceed with your argument.

    J. Robert Sparks:

    Mr. Chief Justice and Honorable Associate Justices, I am going to make my argument on the merits of the case, if this Court reaches the merits.

    Georgia insists as Mr. McPherson ably argued yesterday that this case should not even be here in the first place because a notice of appeal was filed 16 days after the District Court’s order of remand.

    However, in the event the Court disagrees with our position, I am going to try to briefly state that the position of the State of Georgia in this matter.

    As the Court is undoubtedly aware, this is a — an extremely complex problem of construction of the removal statute, the so-called civil rights removal statute which is at 28 U.S.C. 1443.

    It dates back to the Reconstruction Congress in 1866, the first Civil Rights Act enacted right after the conclusion of the war between the states granting a right of removal to any person who is unable to enforce or has denied his rights in the — in a state court under any right of any law providing for equal civil rights of all citizens of the United States.

    Now in 1880, we have the first definitive construction of that statute in two cases by this Honorable Court, Strauder versus West Virginia in 100 U.S. 303 and Virginia versus Rives in 100 U.S. 313 both decided the same day.

    There was one essential difference between the two cases.

    Both cases involved and alleged deprivation by Negro defendants charged with capital offenses in West Virginia and in Virginia.

    Their complaint — the reason by which they claim the right to remove the cases from state court to the Federal Circuit Court at that time was a deprivation or a systematic exclusion of Negroes from the traverse jury.

    Now in the Strauder case, West Virginia at that time had a provision in their constitution which limited electors to White persons with certain other qualifications and then they had a statute which in time said that only electors could serve as grand jurors and traverse jurors.

    On the other hand, Virginia had no such statute or a provision in their Constitution.

    The allegation in the Virginia case was that jury commissioners, judges, and state officials were systematically excluding Negroes from traverse and grand jurors although not required to do so by statute.

    At that time, this Honorable Court held in the Strauder case that removal was a problem and should’ve been granted to reverse to conviction.

    The Strauder case reached this Honorable Court through the usual procedure of appeal to the state courts and certiorari to the Highest Court of that state.

    Now, Virginia filed a writ of a petition in this Honorable Court for a writ of mandamus against Circuit Judge Rives, who had accepted a petition for removal and it writ — and it issued a writ of habeas corpus and had denied a — excuse me, I don’t think Virginia even filed a motion, a petition to remand.

    They just went — came straight to this Court for an order of mandamus.

    And this Honorable Court in the unanimous decision held in Virginia versus Rives that in order for a defendant to remove his case under the Civil Rights statute that there must be a discrimination set out by the state statute or a state ordinance that any alleged discrimination or denial of equal rights by any person else other than by state statute was not removable and that the proper remedy for such defendants was to defend themselves through the state courts or preserve their right — their federal right and then apply to this Honorable Court for certiorari.

    And Your Honor — and Your Honors, Georgia stands today on the Virginia versus Rives case and seven other cases decided by this Honorable Court beginning in 1880 and going through 1906, Kentucky versus Powers being the last expression on this subject in 201 U.S. at page 1.

    Eight consecutive case rulings of this Court has held the same thing that is that there must be a state’s statute which prevents the exercise of a constitutional right.

    A state statute which is either unconstitutional or which denies a defendant in the state court an equal right.

    This is the first time that this issue has reached this Honorable Court since 1906.

    As I said, Georgia stands on those eight decisions of this Honorable Court plus four Courts of Appeal which have held the same — to the same effect three of them within the last two years.

    The three that I refer to in the last two years of the Second Circuit Court of Appeals in New York versus Galamison and incidentally, this Honorable Court denied certiorari in that case.

    City of Chester, South Carolina versus Anderson, that’s in the — that’s by the Third Circuit Court of Appeals in a recent decision by a court of — by the Fourth Circuit Court of Appeals.

    William J. Brennan, Jr.:

    Is that the — if I may interrupt just to it.

    William J. Brennan, Jr.:

    That wasn’t South Carolina, that was Chester, Pennsylvania, wasn’t it, in the Third Circuit?

    J. Robert Sparks:

    Yes, sir, you’re right.

    William J. Brennan, Jr.:

    Yes.

    J. Robert Sparks:

    That’s right.

    It’s Chester, Pennsylvania, excuse me.

    And the Fourth Circuit case is Baines versus the City of Danville, Virginia.

    That case is only recently been decided by a majority of the Fourth Circuit Court of Appeals.

    I believe in February, it hasn’t come out in the advance sheets yet.

    And the Sixth Circuit Court of Appeals in some slightly older cases, Hull versus Jackson County Circuit Court and Snypp versus Ohio, the first of those cases in 138 F.2d. at 820 and the second in 70 F.2d at 535.

    Those four Circuits have all followed the Rives-Powers line of cases and from henceforth in this argument, I will refer to the previous decisions as Rives-Powers which includes Neal against Delaware, Gibson against Mississippi, Murray versus Louisiana, Bush versus Kentucky, Williams versus Mississippi.

    In addition Your Honors, ever since the Kentucky versus Powers case, District Courts in 12 states have universally and without exception followed the Powers ruling.

    Virtually all of this — the states of the south including New York, Michigan, these are outside of the south I should say, New York, Michigan, Pennsylvania, California, and New Jersey have universally refused to entertain removal petitions or have properly remanded them on a petition for remand was filed by a discriminatory state statute.

    It was not alleged in the petition for removal.

    Now, this is the first case.

    This is the first case which departs from this long line of federal cases.

    The Fifth Circuit in the Rachel case by three panel court which was split three ways.

    There were three opinions written, one opinion for the Court written by Chief Judge Tuttle, one opinion for — by District Judge White, who is to — was sitting by designation.

    District Judge White first agreed with Mr. McPherson’s argument that the cases were not — the appeals were not timely filed and said that Rule 37 (a) (2) does apply in the case you should have been dismissed.

    The appeal should have been dismissed and he adhered to that on rehearing.

    A District Judge or Circuit Court Judge Griffin Bell agreed with the majority of the Court as the appeal was timely filed and that the case should be remanded to the —

    Well, (Inaudible).

    J. Robert Sparks:

    — to the District Court for a hearing but he differed sharply with what should be done at the hearing.

    The Fifth Circuit majority opinion directed the District Court to have a hearing and to dismiss the prosecutions if one single criteria were found and that is that the respondents were removed from the places of public accommodation for racial reasons alone basing it of course on this Court’s holding in Hamm versus the City of Rock Hill.

    A District — Circuit Court Judge Bell sharply disagreed.

    He said that this constituted in his opinion, a breach of the principles of federalism as he knew it that such casual treatment of the Georgia courts posed — presented a problem of jeopardy of the relationships between state and federal courts.

    Judge Bell said that, if the cases were remanded to the District Court that the respondents should be required to prove that they cannot receive a fair trial in the courts of the State of Georgia.

    Now, the opinion of the Fifth Circuit did not say a word about that.

    They just said, “Take the case back and if you find that race was involved in the removal, dismiss the prosecution.”

    That gives the Court no chance — the District Court no chance to determine whether or not the facts of each particular case and there 103 cases pending in the United States District Court for the Northern District of Georgia alone, involving some 20 demonstrations in places all over Atlanta City in demonstrations.

    This Court in Hamm versus Rock Hill, of course, held that a person cannot be punished or prosecuted for peaceable, non-forcible exercise of the rights granted them by the Civil Rights Act of 1964 with respect to public accommodations.

    J. Robert Sparks:

    But that does not include all conduct which might take place in those places.

    Another thing which we — I particularly want to call to this Court’s attention is the fact that the Supreme Court of Georgia has followed the Hamm versus Rock Hill decision of this Honorable Court in a unanimous decision by the Georgia Supreme Court in Bolton versus the State of Georgia.

    The Georgia Supreme Court discussed the decision of this Court in Hamm versus Rock Hill and abated a series of trespass convictions which arose from a sit-in or a demonstration in an Athens Georgia Restaurant.

    Judge Bell said, the dissenting judge of the Fifth Circuit panel, “That the Georgia Court should have a chance to pass upon these cases in light of the fact of the decision in the Bolton case.

    The fact that they held — recognized in authoring the decisions of this Court.”

    I might add parenthetically Your Honors that up until three years ago, I was an assistant United States Attorney in the Northern District of Georgia, back, I was the first assistant for several years and I’ve been on both sides of this removal question.

    I’ve on occasion had to remove cases from state to federal court under Section 1442 where federal officers were charged for offenses committed in the performance or in the color of their office.

    And it seems to me that the decision of the Fifth Circuit Court of Appeals that is a radical departure from all of the decisions of this Honorable Court on the question of removal and I’m talking about removal and not for the defendant’s or the respondents would be convicted if they were tried in the state court but simply on the basic question of whether or not a person can allege that in a pure conclusion as they did in the Rachel petition.

    If the Court — I’m certain the Court will read the Rachel petition, you will see that it is nothing but conclusions.

    They alleged only the facts that 20 people were arrested in this place, this place, and this place and so they were arrested while attempting to exercise their right to seek food, comfort, and the entertainment at these public restaurants.

    Now at the time this petition was filed, the Civil Rights Act of 1964 had not been enacted in the law.

    Then they — well, then they alleged in one sentence that the State of Georgia by statute custom, usage and practice, supports and maintains a policy of racial discrimination.

    Then they alleged that they cannot enforce that they are denied their rights and cannot enforce their rights in the courts of the State of Georgia before any action is taken against any of these persons before trial.

    They do not allege a single discriminatory act by a judge.

    They do not dis — allege any oppressive act by any prosecuting attorney.

    They simply said, “Because we were arrested, we conclude that Georgia practices such a policy of racial discrimination.”

    They do not even allege that the statute, the trespass statute under which they’re being prosecuted as either unconstitutional or being unconstitutionally applied as to them.

    District Judge Boyd Sloan who has recently retired from the bench but who has been both the state and federal court judge for about 40 years.

    He promptly remanded the next day after it was filed.

    He remanded all the cases stating and relying upon all of these prior decisions of the appellate courts and of this Honorable Court, the Rives-Powers line of cases that it did not set out grounds for removal.

    Now the respondents in this case, I believe Mr. Amsterdam wrote the brief, I’m so informed and incidentally it was a very excellent brief.

    It — he’s obviously spent years studying this situation.

    It goes back into history, congressional history and so forth, but Mr. Amsterdam, if he wrote the brief and I understand that he did, he claims that this Court can uphold the Fifth Circuit ruling in the Rachel case without disturbing the Rives-Powers line of decisions.

    And he says, that is so for this reason.

    He says that the Rives-Powers line of cases are a procedural matter that they protect a right under the Fourteenth Amendment against a procedural matter.

    That is the right to have members of your own race empanel on the traverse jury which is to try you, and that this case is in the Rachel case, the right that the petitioners are seeking or the respondents are seeking to preserve by removing the federal court is a right against prosecution.

    And he says that that is a substantive right whereas the Rives-Powers’ line of cases are a procedural right only and therefore, there’s a distinction that this Court can distinguish Rives-Power line of authority from this case.

    But I wish to call the Court’s attention that that isn’t what the Court said — what this Honorable Court said in 1880.

    In Strauder versus West Virginia, the first of the cases that three — at page 309, the Court asked this rhetorical question and this was a unanimous decision of this Court is not protection against a race or a color prejudice in empanelling a jury a right, a legal right under the constitutional amendment.

    And then they answered it — that was the Fourteenth Amendment of course and they answered it by saying, “If the statutes of West Virginia discriminating as they do in the selection of jurors amounts to a denial of the equal protection of the law to a colored man when he is put on trial on alleged defense against a state.”

    J. Robert Sparks:

    And I submit that that is a substantive right.

    I submit that respondents has pleading when they say the difference between removing a case to the federal court because you can’t have a person of your own color on the jury which tries you in removing a case because you cannot be prosecuted if you’re within the holding of Hamm versus Rock Hill.

    They are both substantive rights.

    Either one is procedural.

    One is procedural in effect it — prosecution is going forward in the Rachel case, prosecution was going forward and it was a question of state procedure there.

    Again, Mr. Amsterdam or the respondents say on page 95 of their brief and this is the essence of the case as I see it.

    They said that defendants prosecuted for the exercise of the right, the equal public accommodations granted by the Civil Rights Act of 1964 may remove the prosecutions to a Federal District Court whether the statute under which they are charged violates those rights on its face or as applied.

    In other words, the respondents are saying if they have an absolute right to remove the case regardless of whether the statute is being constitutionally applied or is constitutional on its face.

    In fact, in the brief, the respondents, they argue that persons prosecuted in the exercise of the rights granted under the Civil Rights Act of 1964 are insulated from the prosecuted process.

    And I don’t believe that Mr. Amsterdam will quarrel with those words.

    He uses the term insulation several times that they simply cannot be prosecuted and I res — most respectfully submit to the Court that if the Court should abduct the respondent’s theory in this respect, it would create a virtual no man’s land in law enforcement in cases arising or possibly arising in the future out of this Act.

    Mr. Amsterdam apparently contends for the respondents that if a person is arrested in a place of public accommodation that before he gets to the jailhouse he can — his lawyers can file a removal petition and he will be brought into federal court.

    (Inaudible)

    J. Robert Sparks:

    Because he says that the Civil Rights Act of 1964 taken into conjunction with Hamm versus Rock Hill insulates them against prosecution at all.

    And I respectfully submit to the Court that that would leave the states and the federal law enforcement officials in acquiring the risk as to how to proceed.

    If I might pose a hypothetical question, hypothetical situation, suppose that a number of demonstrators seeking to exercise their right to eat in a restaurant or formally integrated restaurant and incidentally, there are very few of those in the south anymore, Atlanta, Georgia is completely integrated, as integrated as Washington D.C.

    But if they went in and some persons on the inside did not agree with them, started a — an argument and suppose that both side started fighting and rioting on the inside.

    Suppose that the demonstrators themselves were fighting, who would move then to control that if this Court says that the demonstrators are insulated from prosecution, from state prosecution.

    Certainly, the federal could not move in because federal law enforcement officers cannot move in unless they authorize by specific statute to — and given criminal jurisdictions as the FBI and the Internal Revenue or the state official certainly would be ought to move in because they would have the idea that if they are making a case to be carried to the federal court.

    I most honestly submit to the Court that this isn’t a matter of grave importance to the whole country at large.

    I have mentioned to say that thousands of cases are of state court prosecutions will rest on what this Court says, a 103 in Georgia alone are pending.

    Do you know what the total figure is (Inaudible)?

    J. Robert Sparks:

    No, sir.

    I do not know what the total figure is but I know that there are number of District Courts (Inaudible) are reserving rulings that — I know that there are number pending in Greenwood versus Peacock which is following me in argument.

    Byron R. White:

    Do you think your case is really like Peacock?

    J. Robert Sparks:

    Your Honor, Mississippi and Georgia is —

    Byron R. White:

    Isn’t all that’s involved — all that’s involved in your case is — in your case, a question of — the way the case was decided anyway was of — whether or not a prosecution for conduct that is expressly permitted by federal law may be removed?

    J. Robert Sparks:

    Yes, the — that is the — that is the — that’s the difference between Peacock —

    Byron R. White:

    And the law was aimed at —

    J. Robert Sparks:

    — and Rachel.

    Byron R. White:

    And the law was aimed at giving equal rights from public accommodation.

    That’s the federal law that’s involved here.

    J. Robert Sparks:

    Yes, that’s the federal law which is involved.

    The difference between Rachel and Peacock and I’m not trying to undermine my sister State of Mississippi because they’ve helped me and I’ve helped them in the briefing on this case but Rachel stands on a different footing from Peacock in these respects, answering Justice White’s question.

    In the Rachel case, the petition is grossly inadequate for removal.

    The petition in Peacock as I read the opinion of the Fifth Circuit alleges that the Mississippi (Inaudible) —

    Byron R. White:

    Well, let’s get back to your statement with that — is that —

    J. Robert Sparks:

    Yes, sir.

    Byron R. White:

    — that’s the — that on the outcome of this case depends hundreds of other cases in the federal court.

    Now, how many states are going to prosecute for entering a restaurant and securing service?

    J. Robert Sparks:

    Not very many —

    Byron R. White:

    And there a hundreds of cases like this around the country?

    J. Robert Sparks:

    Not very many, Your Honor, in the largest cities such as Atlanta and Birmingham, I assume places like that but throughout the south —

    Byron R. White:

    Well, how — why would the —

    J. Robert Sparks:

    — there are many smaller places in which prosecution might be commenced.

    Byron R. White:

    Yes, but counsel tell me, why would a —

    J. Robert Sparks:

    Yes, sir.

    Byron R. White:

    Why would a prosecution in a state court still be pending if it relates to entering a restaurant and asking for service, conduct which is covered by the federal law and which under Hamm and Lupper the case should — shouldn’t get off the ground.

    Now, why are those cases still pending?

    Are there any?

    J. Robert Sparks:

    Yes.

    There’s some are pending.

    I think most of them are — they are pending in the District Courts —

    Byron R. White:

    But certainly, wouldn’t you say —

    J. Robert Sparks:

    — they’ve been — they’ve been removed to the District Court.

    Your Honor, some of them undoubtedly will be dismissed whether they go back to the state court or whether they stay in the federal court.

    Some however go beyond the holding in Hamm and Lupper.

    Some involved violence —

    Byron R. White:

    Violence?

    J. Robert Sparks:

    — on the part of the demonstrators’ acts of vandalism in the place — in restaurants which I do not believe this Court —

    Byron R. White:

    No, no.

    J. Robert Sparks:

    — insulated in Hamm and Lupper.

    Byron R. White:

    So it’s really — there’s an argument over the scope of the —

    J. Robert Sparks:

    Yes, it could, —

    Byron R. White:

    — Federal District —

    J. Robert Sparks:

    — argument over the scope and that is one of the points which we specifically make in our brief that in the event we don’t prevail at all —

    (Voice Overlap)

    J. Robert Sparks:

    — that the District Court at least should be allowed to determine whether or not the cases fall within Hamm (Inaudible) — Hamm and Lupper.

    If so, they are protected, its protected conduct but if they are outside the peaceable non-violence scope of Hamm and Lupper then they should be remanded to the state court —

    But you —

    J. Robert Sparks:

    — and that’s what the District — Circuit Court Bell said.

    Byron R. White:

    Oh, yes.

    They should be about — but do you think the trial about whether or not the federal privilege has been exceeded, the actual trial, that controversy should take place in the state court?

    J. Robert Sparks:

    Yes, I feel that the —

    Byron R. White:

    And if — and if on a — if a motion for — to remand is just simply claimed that the federal privilege has been exceeded, there should be a remand to the state court to have the trial?

    J. Robert Sparks:

    Yes, I think so because otherwise you will have your Federal District Courts trying municipal court cases, disorderly conduct and things like that.

    The Federal District Courts are flooded with the (Inaudible).

    And I’ve — I’m just expressing an opinion but I don’t think the Federal District Courts want those cases because uniformly, they remand them when the state ask for them to be remanded.

    Of course, I know that the District Courts will entertain them if they’re directed to or if this Court decides that they should.

    This contention of the appellants virtually amounts to creating an original trial of jurisdiction in the federal court.

    It’s like asking this Court by judicial decree to — decree a new type of federal jurisdiction that Federal District Courts will entertain all cases arising under the Civil Rights Act commenced by state prosecution.

    And —

    Hugo L. Black:

    (Inaudible)

    J. Robert Sparks:

    That does not —

    Hugo L. Black:

    Suppose we had a — the one that relates to Hamm and Lupper issue, would they just file a motion I suppose to suspend, do they not?

    J. Robert Sparks:

    I didn’t hear the first part —

    Hugo L. Black:

    (Voice Overlap)

    J. Robert Sparks:

    — of the question Your Honor.

    Hugo L. Black:

    Assuming they were raised — they raised the Hamm and Lupper issue, the defense would in a state court —

    J. Robert Sparks:

    Yes, they —

    Hugo L. Black:

    — but the problem, motion to dismiss on the grounds of Hamm and Lupper.

    J. Robert Sparks:

    Yes, sir, they would — in Georgia it’s called the plea and abatement.

    Hugo L. Black:

    Can you have a hearing on that and they would produce if they — a state could not produce any evidence of violence by then you’d say —

    J. Robert Sparks:

    I would say that the (Voice Overlap) —

    Hugo L. Black:

    (Voice Overlap)

    J. Robert Sparks:

    — would certainly dismiss under Bolton against the State of Georgia.

    The Georgia Supreme Court has held it.

    Hugo L. Black:

    And you wouldn’t have a trial though.

    J. Robert Sparks:

    You would not have a trial.

    You would merely have a hearing.

    Hugo L. Black:

    Could be a motion and a hearing.

    J. Robert Sparks:

    If they — if they went beyond the scope of Hamm versus Lupper then there would be a jury trial of questions as to whether they violated or trial before the court without a jury (Voice Overlap) —

    Hugo L. Black:

    Held a full — full scale trial then, wouldn’t you?

    J. Robert Sparks:

    Sir?

    Hugo L. Black:

    The Court overruled their motion, why, I suppose you’d have a full scale trial?

    J. Robert Sparks:

    Yes, you would have a trial then.

    My light is flashed.

    I want to call attention to the Court to one other thing if I might take just one minute.

    And that is that the construction that is sought by this Court —

    Earl Warren:

    And that wasn’t —

    J. Robert Sparks:

    Yes sir.

    Earl Warren:

    That wasn’t your closing.

    J. Robert Sparks:

    It wasn’t?

    Earl Warren:

    Right.

    I think that was probably some notification you gave to —

    J. Robert Sparks:

    Yes, sir, that was my —

    Earl Warren:

    — for rebuttal.

    J. Robert Sparks:

    I haven’t figured out these lights yet.

    (Inaudible)

    Earl Warren:

    Well, the white one comes on five minutes before your time is up and the red one (Voice Overlap) —

    J. Robert Sparks:

    I saw the red one flashed just then and I thought my time was up but I just had one other thing to say Your Honors.

    The action which I — the respondents are asking this Court to take today is one that they tried to get enacted in the law in 1964, when the 1964 Civil Rights Act was passed.

    House Resolution — H.R. 7702 was introduced by Mr. Kastenmeier and it is sought to amend Section 1443 using these words, “The right of removal under this Section shall be freely sustained and this Section shall be construed to apply to any state action, executive, legislative or administrative, or otherwise having the effect of denial or infringement of equal rights and Congress did not so amend the statute, and that is what in effect the respondent’s are asking this Court to do judicially when Congress did not do it — did not pass the Act in that form.”

    William O. Douglas:

    Is that reference is in your brief, isn’t it?

    J. Robert Sparks:

    No, sir, it is not.

    I did not —

    William O. Douglas:

    But was it —

    J. Robert Sparks:

    — know about it —

    William O. Douglas:

    (Inaudible) you give it to me again?

    J. Robert Sparks:

    It is House Resolution 7702.

    My colleagues from Mississippi told me about it yesterday when I —

    William O. Douglas:

    What Congress is this, the present Congress?

    J. Robert Sparks:

    It’s in the Peacock reply brief.

    I understand —

    William O. Douglas:

    It’s in the Peacock, well, thank you.

    Abe Fortas:

    Mr. Sparks.

    J. Robert Sparks:

    Yes, sir.

    Abe Fortas:

    May I ask your reaction to this.

    It seems to me possible that revealing what they — an issue here that has several layers to it.

    First, as I understand that the District Court here on the basis of perhaps or by row of decisions, or if you just held that the 1443 was not available because there was no state statute or ordinance or constitution integration here so that it may be that we have that issue before us is 1443 available only where a state statute etcetera is controlled or is controlling or seems to control state action, right?

    J. Robert Sparks:

    Yes, sir.

    Abe Fortas:

    And the second issue may be what standards should govern the District Court in a — in determining whether to remand the case to the state court.

    Now, the District Court here did not reach that issue, did it?

    J. Robert Sparks:

    No, sir.

    Abe Fortas:

    Because of this decision on the first point.

    J. Robert Sparks:

    The District Court proceeded on the grounds that the — if the removal petition itself does not set out grounds that it should be remanded and that has been the practice in many of the — well, in practically all of the federal courts.

    It has not been the practice for the courts to — for the District Courts to hold hearings if they read the removal petition like a —

    Abe Fortas:

    Alright, yes.

    Alright, well, listen, I want —

    J. Robert Sparks:

    — pleading I mean.

    Abe Fortas:

    I want to take this theoretically —

    J. Robert Sparks:

    Yes sir.

    Abe Fortas:

    — with you if I may.

    J. Robert Sparks:

    Alright, sir.

    Abe Fortas:

    And let’s assume that the petition did set out, didn’t — did make proper allegations whatever they may be?

    Now, the fact of the matter is — here is that the District Court did not reach the question of what allegations have to be made to make out a case for remands or for removal, is that right?

    J. Robert Sparks:

    Yes, sir.

    The District Court just says that the respondents have not shown — did not allege that any statute was unconstitutional and they have not pointed to any statute in anyway abridges —

    Abe Fortas:

    And did not go beyond that so that we —

    J. Robert Sparks:

    They did not go beyond that.

    Abe Fortas:

    — should disagree.

    If we should disagree, if we should hold that there can be factors other than the presence of a state statute or constitutional provision which would provide inadequate basis for a removal under 1443, then I assume there would arise a question as to what are those other circumstances that were just by removal, is that right?

    J. Robert Sparks:

    Yes, sir.

    If you — if the Court should hold that, I think that would be — Your Honor is right.

    Abe Fortas:

    And the District Court —

    J. Robert Sparks:

    I —

    Abe Fortas:

    — has not passed on that?

    J. Robert Sparks:

    No, sir.

    The District Court has not passed on that and under the present ruling of the Fifth Circuit he can’t pass on anything except whether or not race was involved in the removal of the persons from the places of public accommodation.

    I respectfully submit to the Court that guidance is badly needed and I’m certain, the Court will give guidance in this field but state authorities don’t know what to do and the Federal District Courts don’t know what to do.

    This is a relatively new problem although age old but, I mean, in its present facet.

    Now, we respectfully submit that Georgia can handle these cases fairly or we have — our Supreme Court has followed Hamm and Lupper.

    Byron R. White:

    Well, Mr.(Voice Overlap) —

    J. Robert Sparks:

    And — yes, sir.

    Byron R. White:

    (Inaudible) — did Georgia claim in this case that the conduct it involved with the — was not affected by the public accommodations law?

    Is there any claim here to the federal (Inaudible)?

    J. Robert Sparks:

    Your Honor, I can’t answer that categorically because I said, this covers about 20 cases and I’m not familiar with the evidence in all of the cases but I can say this, in some instances, I think that the conduct would be covered by Hamm versus Lupper, I mean, it would be insulated.

    Some demonstrations were peaceful.

    Others involved pushing, shoving, kicking by the demonstrators.

    They tried to force their way in to one restaurant, formed a flying wedge and rushed the door, kicked the proprietor on his leg and so forth.

    J. Robert Sparks:

    That type, I do not believe would be covered by Hamm versus Lupper.

    Byron R. White:

    (Inaudible) to the extent that there are some of this case that maybe — have no (Inaudible) because there may be no claim in federal (Inaudible).

    Why are those cases still on file?

    J. Robert Sparks:

    Well, Your Honor there was a — there a hundred and one of them —

    Byron R. White:

    And I suppose (Inaudible) —

    J. Robert Sparks:

    There were a hundred and one of them indicted and before only two of them —

    Byron R. White:

    (Voice Overlap)

    J. Robert Sparks:

    — only two got tried and then the whole batch was removed over the federal court and we’ve been fighting the question of removability ever since.

    Byron R. White:

    I know that there’s plenty of them, a hundred and — but that they were removed before Hamm and Lupper ever came down.

    J. Robert Sparks:

    Yes, sir, that’s true.

    Byron R. White:

    And after Hamm and Lupper, there are 50 of them (Inaudible) —

    J. Robert Sparks:

    Well, Your Honor, they’ve — the District Court hadn’t had jurisdiction of this case so that they can be dismissed from that time.

    It’s been on appeal ever since.

    It was on appeal when Hamm and Lupper came down so — I mean —

    Hugo L. Black:

    You mean the Georgia Court.

    J. Robert Sparks:

    No, sir.

    I mean, the Federal District Court has not had jurisdiction of these cases.

    Are they — they’ve been on appeal ever since.

    Hugo L. Black:

    They don’t have it in (Inaudible) Georgia court.

    J. Robert Sparks:

    No, sir.

    Going up through the Fifth Circuit Court of Appeals, they were pending in the Fifth Circuit.

    Hugo L. Black:

    Neither local — neither the local District Court — federal court nor the local state court, that had the cases before them during that time, you’re asserting.

    J. Robert Sparks:

    No, sir.

    They haven’t had them — they haven’t had them before them because they’ve been on appeal all this time.

    They remit it to or the mandate has never gone back from the Fifth Circuit pending the appeal to be certiorari to this Court.

    So, no one has jurisdiction of them now except this Honorable Court.

    As a manner of speaking —

    William J. Brennan, Jr.:

    Well, is that (Voice Overlap) is that a barrier nevertheless of the state’s dismissal of those cases that would be governed by Hamm and Lupper?

    J. Robert Sparks:

    Yes.

    I don’t think you can miss — dismiss a case, its own appeal because until the mandate is returned, the cases are not — the District Court has no power to enter on all of them.

    William J. Brennan, Jr.:

    But could the state — I’m asking (Inaudible) —

    J. Robert Sparks:

    Yes, sir.

    William J. Brennan, Jr.:

    But we constantly get the questions that are here and we’ve disposed of cases based on confessions of error and the independent examination of the records and stuff.

    J. Robert Sparks:

    But Your Honor —

    William J. Brennan, Jr.:

    Would that be done with some of these cases?

    Even in this Court, could that be done at this juncture?

    J. Robert Sparks:

    I don’t know Your Honor.

    We are saying that what — our position is if we want to get them back in a state court and let us dispose of them in the state court.

    We feel that they were improperly removed and when we get them back we’ll dispose of them justly.

    Those that need to be dismissed, we will dismiss them in a state court, and those which may need to be tried, we’ll try them in the state court — in a state court.

    What we are saying is that this is purely a question of jurisdiction that we are arguing right now and not the merits of the case, I couldn’t tell you what the merits of any particular case was.

    Byron R. White:

    I know but just — just the Georgia Courts will and have been on Hamm and Lupper that the — that to the extent they will be dis — should be dismissed, they will be dismissed (Voice Overlap) —

    J. Robert Sparks:

    Yes, sir.

    And to the extent if they should be prosecuted, they will be prosecuted.

    Byron R. White:

    That isn’t all the —

    J. Robert Sparks:

    That’s in our position.

    Byron R. White:

    — because they’re still in the court even though some of them are — maybe covered by Hamm and Lupper.

    J. Robert Sparks:

    Yes, sir.

    They’re all in the courts but then — but none of them are in the state courts.

    They’re all in the District Court —

    Byron R. White:

    (Voice Overlap)

    J. Robert Sparks:

    — for the Northern District of Georgia and as I say, it’s been on appeal continuously for about 18 months.

    And even the District Court — District Court does have jurisdiction of the two which were just removed last week.

    My time is up and I appreciate the courtesy of the Court.

    Earl Warren:

    Mr. Amsterdam.

    Anthony G. Amsterdam:

    Mr. Chief Justice, may it please the Court.

    Of the several grounds which Georgia urges for reversal here, one, the construction of a civil rights removal statute is of overwhelming importance.

    Mr. Sparks has just said eloquently I think that state prosecutors in the Federal District Courts need guidance in this matter.

    And the question is involved not only in this case and in the Peacock case which follows but in others pending here and many pending in the lower courts.

    I perhaps should say in answer to Mr. Justice Harlan’s question to Mr. McPherson yesterday that the issues in this case, Rachel, are not exactly the same as those in Peacock and that it might well be that Peacock might be decided in favor of a remanded state court, although, jurisdiction in the Rachel case would be sustained.

    Anthony G. Amsterdam:

    I think it would be very difficult to decide the cases the other way around but the issues are not exactly the same.

    Because of the importance of the issues, because Congress and the Civil Rights Act of 1964 deemed their resolution by this Court essential to the effective protection of federal civil rights by the federal courts.

    I would like to argue that question, the question of construction of Section 1443 of the judicial code.

    First, notwithstanding the slight branch in strict logic that’s involved in putting off until later the question raised by Mr. McPherson as to whether this Court has jurisdiction to hear the substantive contention on the merits.

    Now on the issue of statutory construction, the text which we must construe is set out at pages 2 and 3 of our brief.

    And I mean to refer to it at this time not to argue the case under the language of the statute but merely to outline and I thought that it might be helpful to the Court, the various possible constructions of the statute and the contentions made not only by the parties here but also by various lower courts that have passed on the questions.

    I do this because as I shall say in a minute, I don’t think that the question in this case is one that can be decided as a matter of language.

    I do not think that syllogistic work with words.

    I do not think that punctuation.

    I do not think that grammar is the answer to this case.

    I think its answer is in history and I think its answer is in the practical functioning of the civil rights jurisdiction in this country today.

    Questions I shall come to very shortly in this argument.

    Now, looking at the language of the statute for the moment just for the purpose of outlining the possible constructions of it, I turn first to Section 1443 (2) because, although, the Fifth Circuit below decided this case on Section 1443 (1) as I shall make clear I hope a little later in the argument, I myself would prefer to see the Court rest affirmance of the decision below which you can do on Section 1443 (2).

    And also because Mr. Sparks has argued implications for this case from the Rives-Powers line of decisions and those decisions or constructions only of Section 1443 (1) leaving the Court entirely free I believe to construe for the first time in this case and the Peacock case following Section 1443 (2).

    Now, 1443 (2) allows removal where a prosecution is for any act under color of authority derived from any law providing for equal rights.

    There is also a refusing clause in Section 1443 (2) which we do not rely on in this Court which I believe the petitioners in Peacock removed — petitioners in Peacock do rely on, we do not.

    We construe the phrase, “any act under color of authority derived from the law providing for equal rights,” to mean, any act which is authorized by a federal law protecting civil rights which is permitted by a federal law providing for equal rights which is protected by a federal law providing for equal rights.

    We read —

    Byron R. White:

    (Inaudible) — including the right protected by the constitution and not by a federal statute?

    Anthony G. Amsterdam:

    We do not need to reach that question in this case because the rights which we claim in this case are protected expressly by Sections 201 and 203 of the Civil Rights Act of 1964 which Georgia has not contended, it’s not a law providing for equal rights which I think no law or federal court has began to suggest is not and which I think clearly is.

    So, we need not reach the constitutional question in this case.

    Abe Fortas:

    Wasn’t this petition filed before the Civil Rights Act, was it passed?

    Anthony G. Amsterdam:

    The removal petition was filed in this case and the case remanded before the Civil Rights Act was passed.

    I don’t think that that affects —

    Abe Fortas:

    You don’t think — you don’t think that makes any difference?

    Anthony G. Amsterdam:

    No, not at all.

    Hamm and Lupper have resolved the question I take it as to whether or not the substantive protection of the Act applies in such cases.

    The question of whether or not federal jurisdiction is proper in such cases is a question whether a statute governing the jurisdiction of courts should apply to pending cases.

    Now traditionally, a procedural removal statute is applied to pending cases.

    I see no reason why if a substantive provision of the Civil Rights Act of 1964 do not begin to operate as of July 2nd, 1964 but relayed back, I see no reason why we would remove under the statutes dating from 1866 should not have the benefit of that.

    Hugo L. Black:

    (Inaudible) — I don’t want to take your time but I think it’s a complex thing.

    Anthony G. Amsterdam:

    The question I think is only whether or not we should have alleged with greater particularity when we did the rights which we now seek to assert because —

    Potter Stewart:

    How could you before the statute was passed?

    Anthony G. Amsterdam:

    That is exactly our position.We think that as far as —

    Potter Stewart:

    Well, I think Mr. Justice Fortas’ — the basis of his question too?

    Anthony G. Amsterdam:

    I think that’s right.

    I think that —

    Potter Stewart:

    At the time you filed this petition to remove, there was absent any of the justification that you now assert for, isn’t that correct?

    Anthony G. Amsterdam:

    Oh, absolutely Your Honor, that — that of course, at that point, the question was before this Court which the Court has never resolved as to the constitutional protection of the conduct which we claim now as protected under the Civil Rights Act.

    And it was under the constitution that we originally sought to remove but unless this Court should find that because our pleadings are insufficient or for some other reason, Hamm and Lupper does not reach and protect this case.

    There need be reach no constitutional question in this case nor any question as to whether Section 1443 and its phrase “law providing for equal rights” means anything under the Civil Rights Act of 1964.

    Now, the State of Georgia has taken the position that an act under color of authority means an act under color of office.

    And it is when that in effect that the federal officers and the persons acting under them.

    And this is a position which has since been sustained by the Court of Appeals for the Fifth Circuit in the Peacock case although in Rogers in Tuscaloosa and other panel of the Fifth Circuit regarded the question it’s still open there.

    The third possible construction of Section 1443 (2) which should command the consideration of the Court is that by Judge Friendly in the Galamison case in the Second Circuit.

    Judge Friendly without resolving the question whether the phrase color of authority meant color of office and whether the statute does reach anybody other than officers and persons acting under them said that authority derived from the federal law, only a federal law directed a specific act to be done.

    An act was authorized by under color of authority of law if it was a direction given by that law to do the act.

    We think that doesn’t amount to very much other than the construction that the statute is limited to officers and persons acting under them because no civil rights law that we know of directs anybody to do anything other than federal officers and persons acting under them.

    So I think that the alternatives meaningfully in construction of 1443 (2) are simply, whether or not under color of authority means protected by federal law and does reaches demonstrators, sit-ins, and persons who are protected by federal law which precludes their prosecution or whether it is limited to federal officers.

    And again for the moment without arguing, we’re just simply pointing out what the alternatives mean at this point.

    I would point out that that second construction reached 1443 (2) off the books because Section 1442 (a) of the judicial code today allows removal on all federal office in cases of civil rights or otherwise including persons acting under federal office.

    Now passing the 1443 (1) again merely with the purpose of outlining what the issues are and what the possible constructions are, 1443 (1) unlike 1443 (2) asks a question not —

    Byron R. White:

    — about — that other removal statute didn’t so provide until 1948, is it?

    Anthony G. Amsterdam:

    That was for the first time broadened to include all federal officers in the 1948 judicial —

    Byron R. White:

    (Inaudible) revenue officers?

    Anthony G. Amsterdam:

    Revenue officers only.

    The first Section of 1443 asks questions that the second Section does not.

    It allows for a removal only in the case of prosecutions or civil cases against the person who is denied or cannot enforce in the state courts a — an equal civil right or right provided — protected by a law, a right under a law providing for equal civil rights.

    Now, the various possible constructions of 1443 (1) I think are broader than those of the 1443 (2).

    First of all, there is the construction of the Rives-Powers line of cases argued by Mr. Sparks this morning that the denial spoken off by Section 1443 (1) is a denial which arises from the face of a state statute or constitution, unconstitutional on its face that where that existed is both the necessary and sufficient condition of removal that no question can be asked whether the state courts will uphold the state statute albeit unconstitutional or will strike it down and that the one hallmark of removability is an unconstitutional state statute.

    Anthony G. Amsterdam:

    A second possible interpretation is that when a removal petition is filed as it now must be filed in advance of trial, the federal court shall try case by case, issue by issue the question whether the removal petitioner is being denied or has been denied and cannot enforce in the state courts a right under the constitution and laws.

    Now for the moment, I’m treating the words denied and cannot enforce as though they were tautologic.

    And I’ll come to a moment — in a moment to the Government’s position in Peacock that they are not.

    A position which we don’t have to reach in our case because we think that the result is the same, however when used, those two words.

    But any possibility in construing Section 1443 (1) would be to say that the Federal District Court on a removal petition would try whether or not a petitioner who is charged with sitting in, in a — or seeking service in a restaurant covered by the public accommodations title could have his right to the defense of the Civil Rights Act of 1964 fairly tried in the state court.

    And as I understand that that is Mr. Sparks alternative contention that we look to the Georgia Supreme Court although why only to that court, I’m not sure.

    Why not to Judge Price court which this case would be tried in the first instance.

    However, we look to the Georgia Court and we try their fidelity to the constitution.

    Will they or will they not obey the constitution?

    Will they or will they not follow this Court’s decision?

    Now, a third possible construction —

    (Inaudible) tried in a state court (Inaudible) a state trial?

    Anthony G. Amsterdam:

    Under this construction of the statute, you would have to try the probability that the state court would come to an unconstitutional result.

    We are not asking this Court to do that.

    I am simply outlining the possible constructions but I haven’t yet come to the one we’re urging.

    The third possible construction splits the word denied and cannot enforce into two pieces and it says that Section 1443 (1) has two rights to remove.

    A right to remove where one is denied a federal civil right and a right to remove or one cannot enforce a civil right and it says that wherever the conduct or which the prosecution is brought is itself protected by a federal substantive guarantee which allows that conduct that the very fact of the arrest in the commencement of the prosecution is a denial of their right and that without reaching any question, it cannot enforce the prosecution as (Inaudible) it’s a removal.

    This, I understand to be the Government’s position in the Peacock case.

    Potter Stewart:

    But does involve adding a little punctuation at least to make the argument there, doesn’t it?

    Anthony G. Amsterdam:

    Judge Sobeloff —

    Potter Stewart:

    (Inaudible)

    Anthony G. Amsterdam:

    — in the dissent in the Danville case did, I think graphically illustrates by punctuation exactly how this would work.

    I myself don’t ask the Court to take that position and I don’t because in my judgment, the only justification for a removal jurisdiction at all is some feeling that the state courts cannot, will not, do not enforce certain kinds of federal rights and therefore I hesitate to focus attention on the arrest process.

    I’m much more concerned with the process in the trial court.

    I think I shall explain why I think that notwithstanding that, our cases within the denial and cannot enforce language.

    Now the fourth possible construction is that which we urge in this case that because of the inevitable pendency and in speaking of this, I do not speak of the southern state courts alone.

    I do not speak of the courts in Fulton County alone.

    I speak of the natural effect of appending criminal prosecution on the kind of conduct which the prosecution has brought upon it because of the general deterrent effect of a prosecution on conduct.

    We claim that the very pendency of a prosecution in a state court against a person for a federally protected right is in itself a denial of that right and denial of the ability to enforce that right, were to put it exactly in Mr. Sparks’ language, we do indeed claim in this case that with respect to certain federal rights.

    Those few precious federal rights that Congress has either hedged about as it did in the Civil Rights Act of 1964 with a special guarantee that no one should be coerced, intimidated, harassed or punished for seeking to assert this right and with some other rights we need not be reached in this case.

    Anthony G. Amsterdam:

    The First Amendment rights involved in Peacock, that the very precious nature of those rights and the suppressive effect on a prosecution which this Court has recognized in many cases over the years is a justification for a jurisdiction which does indeed insulate from prosecution persons who engage in that conduct.

    Now notice, when I say insulation from prosecution, all that means is that the question whether or not the prosecution shall go on is to be tried in a federal court in the first instance and not in a state court.

    And in reaching the questions of construction which I’ve now laid out in explaining why I reached that result, I want to pass if I may from the language to history and then —

    Abe Fortas:

    Before you do that, why do — why wouldn’t the pendency of the case in the federal court have the same effect as its pendency in a state court?

    Your proposition —

    Anthony G. Amsterdam:

    It cert —

    Abe Fortas:

    — must be that that’s because the affected community believed that they can’t get a fair trial in a state court.

    Anthony G. Amsterdam:

    The pendency of the case in the state — in the federal court does have some effect.

    Let me answer that question in several different ways.

    First of all, the length of pendency is absolutely critical.

    If we compare, for example, the Mississippi Freedom Writer cases, the freedom rights were in May of 1961, the Mississippi Supreme Court in a case that was clearly controlled by this Court’s prior decision affirmed in 1965 (Voice Overlap) —

    Abe Fortas:

    But again — again you’re assuming that the — again, you’re making a comparative evaluation in the federal and in state court?

    Anthony G. Amsterdam:

    That’s right and when you —

    Abe Fortas:

    So that when it comes back it seems to me, to the same proposition that —

    Anthony G. Amsterdam:

    Mr. Justice Fortas, I thought that I — when you asked whether or not the pendency of the case in the federal court was not repressive in the same way that it was in a state court, my answer is as a matter of degree, it is critically different.

    It is differently repressive.

    It is less repressive because the probability that a federal district judge would have allowed —

    Abe Fortas:

    Well, I understand that its less repressive in the practical circumstances but what I’m trying to point out is that the reason that it’s less repressive involves a judgment as to the fairness in the expedition or the lack thereof in the state court proceedings.

    Anthony G. Amsterdam:

    There the —

    Abe Fortas:

    So that your proposition no matter how you’d cut it, no matter how you phrase it may come back to one of a comparative — a prediction as to how the state courts rely.

    Anthony G. Amsterdam:

    If —

    Abe Fortas:

    And that of course is —

    Anthony G. Amsterdam:

    The whole argument does indeed —

    Abe Fortas:

    — is very (Voice Overlap) —

    Anthony G. Amsterdam:

    — depend on that but let me distinguish between two ways in which that issue is critical.

    One is, if case by case, the federal court had to decide the probabilities in a state court and the other is the question whether Congress has not made the generic judgment about state courts in these cases which has ordered a federal court because of the increase probability of repression in the state courts generically to take these cases without inquiring case by case, instance by instance, whether or not the state courts will probably enforce the federal right.

    Byron R. White:

    Yes, but (Voice Overlap) —

    Anthony G. Amsterdam:

    We do completely agree.

    Byron R. White:

    We understand but let’s all assumes that there — had been a prosecution for a federally protected right.

    Anthony G. Amsterdam:

    That’s —

    Byron R. White:

    And where do you suggest and I suppose you suggest that if somebody just alleged the — that the federal right is being prosecuted in the state court, that question must be tried out in the — an initial question that we tried out in the federal court.

    Anthony G. Amsterdam:

    Oh, we can — we are perfectly agreeable to that.

    We believe that a Federal District Court if a petition for removal is contested on the facts, must try the issues alleged in the petition and denied any answer.

    But if a petitioner filed under 1442 (a) by a federal officer, asserting I am a federal officer and the answer was, “you’re not a federal officer, you’re a law professor”, I would expect that the Federal District Court would try that issue.

    Byron R. White:

    Or if a — that there is a petition for removal is filed and that case is removed and the motion for remand says, “Yes, but these people were being violent and arrested.”

    Anthony G. Amsterdam:

    Oh, there’s no question that if the —

    Byron R. White:

    Is that what happens in the federal court?

    Anthony G. Amsterdam:

    In this case?

    Oh, then what happens in the federal court?

    A hearing has to be held on the specific question —

    Byron R. White:

    Jury trial?

    Anthony G. Amsterdam:

    Oh no.

    No jury trial.

    Byron R. White:

    Why not?

    Anthony G. Amsterdam:

    The question is a jurisdictional one.

    Byron R. White:

    Why not?

    Anthony G. Amsterdam:

    Because the question is whether or not the Court shall accept jurisdiction over the case.

    Byron R. White:

    Yes, but aren’t the facts really the — one of the defenses is — one of the defenses of the defendant is that I’m protected by a federal statute hearing.

    Anthony G. Amsterdam:

    Well, let me —

    Byron R. White:

    Do you think you agree with the Government on this position or not?

    Anthony G. Amsterdam:

    Even if this —

    Byron R. White:

    Or do you know what happens in the federal court on the motion for remand?

    Do you think you have the same position as the Government?

    Anthony G. Amsterdam:

    We differ from the Government.

    We take a somewhat narrower view of the right of removal and therefore we end up with a somewhat different view on what happens to the federal court.

    Byron R. White:

    You would consi — you would say that the federal — the judge alone could have that hearing and make those factual determinations and legal conclusions on the motion to remand?

    Anthony G. Amsterdam:

    Exactly and let me explain why that’s so.

    If this case were tried in the state court, I believe that the state judge not the jury would have to decide the Hamm and Lupper issue.

    Mr. Justice Clark asked whether or not — that would be tried on an issue —

    Byron R. White:

    But the jury would decide whether there was violence.

    Anthony G. Amsterdam:

    I believe that if a motion to abate were filed citing Hamm and Lupper in a state court that for the same reason that under Jackson and Denno, a state judge is required to try the federal constitutional issue of a confession at the federal — that a state trial judge would be required to try without a jury the issue of whether or not the facts brought this case within Hamm and Lupper.

    I think that then a jury trial would have to be held on whether or not a state statute had been violated and I point out that in the event that this case came to conviction in a state court and was affirmed on appeal that when a federal habeas corpus petition was filed after state trial, a federal district judge sitting without jury would decide all over again if the case had not been removed and advanced at trial whether or not the petitioner’s conduct fell within the state statute and whether or not it fall within the protection of Hamm and Lupper.

    Byron R. White:

    And that’s the (Inaudible)?

    Anthony G. Amsterdam:

    Let me — Mr. Justice White, if I may, this issue seems to me critical, I mean, the entire —

    Byron R. White:

    It certainly is.

    Anthony G. Amsterdam:

    — construction of the removal statute.

    The question of — as soon as Mr. Sparks put the scope of Hamm and Lupper, is a question of the existence of Hamm and Lupper because — let me explain why.

    We think Congress made the judgment that these cases should be tried to a federal judge in a federal court at the outset.

    If this case is now decided against removal, let me hypothesis for a moment that the petitioner in this case (Inaudible) — the respondents in this Court remove a petitioner in this case, Thomas Rachel comes to me and says to me, “I’d like to sit-in in one of the few remaining segregated restaurants in Atlanta or the many remaining segregated restaurants outside Atlanta, can I do it?”

    What would I have to tell him?

    I would have to tell him, “Of course you can do it.”

    If the restaurant is covered by the Civil Rights Act of 1964, Congress has said in so many words, “You have a right of equal access in the restaurant.”

    And Congress has gone out of his way to say that not only have you got that but no person shall intimidate, threaten, coerce, attempt to intimidate, threaten or coerce you for exercising it, you shall not be punished, no person shall attempt to punish you.

    And then I would — would be I think, a pretty bad lawyer if I stop there because what I ought to tell him is that if the restaurateur wanted to deny him service, he wouldn’t do it on the ground that the restaurant wasn’t covered by the Civil Rights Act anymore.

    He would do it precisely on the ground that there was some boisterousness or he would deny it on the ground that Rachel when he came in was ill-dressed or that he was drunk, whether he ogled the waitress or anyone of a whole host of other grounds which might give the restaurateur under the Georgia statute a right to exclude it.

    Now on that question of fact depends the effective enforcement of this Court’s Hamm and Lupper decisions and the effective enforcement of the Civil Rights Act of 1964, and we suppose that a Federal District Court was deemed by Congress to be a better form, a more appropriate form for the trial of this federal issue than a state judge or state jury.

    If I had to tell Thomas Rachel in my hypothetical case, what he could expect in the event that the restaurateur denied him service on the ground that he was boisterous or annoys the — or ogled the waitress, I would tell him that what would happen is that he would go trial and this Mr. Justice Fortas, goes back to the question of what in fact happens in the state court but not a particular state court.

    State courts generally, I would tell him that the risk that he runs when he is arrested is that bail will set — be set when as — it was for one of the removal petitioners in this case, at $7000 for misdemeanor.

    Now, it may well be that we can challenge that, we can bring other proceedings, habeas corpus in a state court or up to the state highest court go into a Federal District Court to challenge bail perhaps.

    In the amount of time that it takes us to get a judge, you may have spent a night or you may have spent two nights in jail but we can eventually challenge it and perhaps we have to go through several courts to challenge it.

    Then what will happen to you is that you’ll be brought to trial in a state court.

    The state court will be sitting right across ordinarily from the Chief of Police Office with the officers wondering in and out of the courtroom.

    And how your witnesses will testify and how the ordinary southern lawyer will try your case defending you is going to be very, very effectively influenced by the fact that the courtroom is right across from the chief of police, right across from the Mayor’s office.

    And that the Court (Voice Overlap) —

    Abe Fortas:

    Well, you don’t quite rule the generality of that do you, with respect to defense lawyers?

    Anthony G. Amsterdam:

    The general attitude with respect to defense lawyers is — and of all lawyers and rightfully is of great deference to the Court.

    And where the suspicion is that the Court is hostile —

    Abe Fortas:

    Well, maybe you better not answer it.

    Now, but what bothers me Mr. Amsterdam is you say that commerce has in effect directed or established it, the very least established a presumption that all cases where a person is arrested for — is arrested in the course of the civil rights — of civil rights activity should be tried in the Federal District Courts.

    Is that what you said?

    Anthony G. Amsterdam:

    It is more than a presumption.

    It is a conclusive presumption of the law.

    It just —

    Abe Fortas:

    That’s your position.

    Anthony G. Amsterdam:

    That it is.

    Abe Fortas:

    Now — then to establish that, don’t you have to tell us — illuminate this, a little bit about 1443?

    Anthony G. Amsterdam:

    I intend —

    Abe Fortas:

    That’s the only source of that, isn’t it?

    Anthony G. Amsterdam:

    I intend to get just there and when I spoke of history, it was exactly in that sense that I meant that history was illuminating and indeed we think controlling in this case.

    I was merely pointing out why Congress could’ve made the judgment that we think it may.

    Now, to establish that it did make the judgment, we have gone through the legislative history of the statute which passed a hundred years ago this month, laid the foundation for removal jurisdiction claimed in this case.

    I ought to say that in connection with the legislative history, we do not claim any more than we do with respect to the language that there’s anything in there specifically which compels this Court to the result we contend for.

    In the sense of any explanation of the statute on the floor of Congress or any supposition of the cases that would arise under it, the judiciary provisions of the Civil Rights Act of 1866 were relatively undiscussed.

    The structure of the original statute was to create original jurisdiction as well as removal jurisdiction.

    The only discussion of the provision at all was by Senator Trumbull, responsive to a criticism by President Johnson and his veto because the criticism was slanted, that only part of the jurisdiction, the response was only partial and we find no illumination in the specific legislative history but we find the extraordinary illumination in a larger panorama of history here because we think that if you go back and look at the history of use of the federal judiciary to enforce federal rights which is what we’re talking about in this particular instance.

    You find that the reconstruction period, the period in which the statute was enacted is the watershed that prior to the reconstruction period, the federal courts albeit the constitution, gave the Congress power to establish lower federal courts.

    Lower federal courts were very seldom used.

    It wasn’t even a general federal question jurisdiction as we know it today.

    And a massive business, above the business which the federal courts do today, they were giving in the five or six years following the Civil War.

    Now, the second thing that I think stands out is one that looks back at the historical panorama is that the principle concern of the reconstruction Congress is which bulked up the jurisdiction of the federal courts and gave them the protected jurisdiction which they have today was with the pretention of the civil rights which were gained by the war, secured and assured by — substantively by the Thirteenth, Fourteenth and Fifteenth Amendments and by the Civil Rights Act.

    Every Civil Rights Act, everyone had jurisdictional provisions which gave the federal courts jurisdiction.

    Now, let’s take a look for one moment what that jurisdiction is.

    To start with, in cases without regard to a mail unlike general federal questions jurisdiction, the federal courts have civil jurisdiction in all cases involving civil rights.

    They have it originally.

    They have it in equity.

    They have it in law.

    They have the habeas corpus jurisdiction given by a statute in 1867 whose clear purpose was to allow them to take from state custody, persons in restraint by the state executive with or without state judicial process where their federal rights were being violated.

    The federal courts, in short, have very extensive civil rights jurisdiction.

    Now a question arises, did not Congress — would not Congress have foreseen that the major threat perhaps to the civil rights just secured by the war and by the amendments would not come in civil cases.

    It would not come solely in cases in which the state executive was acting but was very often come in criminal prosecutions by the state in which the Freedmen and the unions is in itself were prosecuted and we know Congress knew this because the debates which we’ve set out at pages 45 to 66 of this brief, if they mean anything, mean that Congress knew that the state courts were hostile and that state court actions were being used to harass unionists and Negroes in the south.

    Anthony G. Amsterdam:

    We asked, wouldn’t Congress have done something about that and we conclude that they did.

    We look at the first thing they did in reconstruction, the passage of the Civil Rights Act of 1866.

    And that first thing they did, allows removal of civil and criminal cases in three basic categories.

    The only one of them and the third is in issue here but the other two we think are very illuminating.

    First of all, federal officers enforcing civil rights laws, whatever else Section 1443 (2) means, it certainly means and everybody agrees that a federal officer or unionist who is enforcing the Civil Rights Act could remove under it.

    He wouldn’t have to show case by case that the state courts were unfair.

    He wouldn’t have to show that the state statute was unconstitutional on its face.

    The very fact that he was a federal officer involved in civil rights enforcement would allow them to remove.

    Secondly, and I think this is extremely important although we don’t rely on it specifically in this case.

    A state officer who refused to do an act on the ground that it will be inconsistent with civil rights law is permitted to remove.

    A state officer, he is not a person protected by federal law, he is permitted to remove this case to a federal court simply because the issue of his authority which he refuses to exercise involves federal civil rights law.

    He doesn’t have to show that the state courts are not fair.

    He does not have to show that they will not sustain the federal constitution.

    He does not have to show that there is a state statute unconstitutional on its face.

    All that he has to show is that he is a state officer, being prosecuted for an act or a failure to act in this case which he says would conflict with federal law.

    We asked then if these two classes of persons, federal officers enforcing the law and state officers who refuse to violate it or for that reason alone, given the right to come into the federal courts.

    Did not Congress mean or would it not also have meant to allow the very persons protected by the amendment and by the Federal Civil Rights Act persons who were denied their right in a state court to come into the federal court on that ground alone.

    We believe that’s exactly what they meant with Section 1443 (2).

    Now, let me very carefully distinguish two kinds of cases because usually we get into the Rives line as well.

    We think that Congress was thinking about two situations.

    First is a situation in which a state charge is brought against someone for conduct in the exercise of a federal civil right.

    Now to take one of the civil rights of Section 1 of the Civil Rights Act of 1866, we’ll take the right to possess property.

    Suppose that a Negro got a grant in fee of a piece of property and a White man came and tried to throw him of it, tried to evict him forcibly on the ground that he couldn’t hold property and that the White man was entitled to the property.

    Ordinary state law would allow defense by force of one’s habitation against an aggressor.

    We have no doubt that that right of self-defense was protected by Section 1 of the Civil Rights Act of 1866.

    We think that in cases like that, Congress made the conclusive presumption of law that because federal civil rights were involved in this case and because the potential for harassment of granting these cases through the state courts intermittently, the problems I raised earlier, trying them in front of a potentially hostile state judge who will influence what lawyers do by his very presence, who will influence the way witnesses testified, who has enormous discretion on questions of bail, who has enormous discretion on questions of timing and when the case comes before the Court, how long it shall be held up.

    These cases are cases in which we think Congress meant the case immediately to go into the Federal District Court.

    Abe Fortas:

    I suppose — let’s take the same case that you put and let’s suppose that the Negro had invited the White man into his house and this go along with these implausible facts if you will as of that time.

    And let’s assume that the — they’ve been having a quiet luncheon there and then the Negro had pulled out a gun and killed the man and — for purposes of robbing him.

    And then the state brought a prosecution against him.

    Abe Fortas:

    Now, our problem then — under this statute is what happens from that point on and I say, once you assume that the conduct is — once you assume the characteristics of the conduct, you solved a lot of problems but our problem here is, how do you get to that kind of a judgment?Do you get it in — to it in the state court or the federal court and when?

    That is a — the answer follows — may follow anyway once you make that assumption.

    Anthony G. Amsterdam:

    That —

    Abe Fortas:

    But we’re lawyers and we’re judges and we have to confront the problem of how do you make that?

    Anthony G. Amsterdam:

    Of course.

    Abe Fortas:

    Every one of these cases.

    I assume, unless states are going the dismiss them, a state will say, civil rights has no part in this.

    This is violence of — or something in the sort.

    And on the other hand, the defendant, in every one of these cases will say, I hadn’t — I didn’t kick anybody, there was no violence involved here, its entirely civil rights.

    And as I see this, perhaps I’m wrong, the critical, legal and judicial problem is how, when and where — how, when and where that threshold decision is to be made to be such one, the critical problems.

    Anthony G. Amsterdam:

    And under our construction of the statute, it is to be made by a federal judge after a removal petition has been filed and in the event that a remand motion challenging the factual allegations of the petition is filed.

    We completely agree — and this I think is also the answer in part to why I earlier responded Mr. Justice White as I did, that the factual question is critical.

    But we think Congress meant precisely because of the power of a state court to find the facts against a federal petitioner and because of the inconvenience of litigating those issues in the state court and the threat to federal rights if they — one who goes out to sit in a restaurant knows that he’s going to go to trial in a state court.

    We think that the how, when and where is in a federal court on a motion to remand in advance of any trial.

    William J. Brennan, Jr.:

    By a judge without a jury — and by a judge without a jury?

    Anthony G. Amsterdam:

    And by a judge without a jury.

    William J. Brennan, Jr.:

    And if the judge determines that indeed there was violence, I take it, what he then must to his remand to the state court (Voice Overlap) —

    Anthony G. Amsterdam:

    Remand to the state court where a trial by jury has had and this is not, Mr. Justice Brennan —

    William J. Brennan, Jr.:

    The alternate — the alternative to that is that the — is that the defense — is that — that if you just have the whole trial in a federal court and the federal defense is presented, the jury along without a — the factual basis for the federal adherence —

    Anthony G. Amsterdam:

    This I understand — I understand this to be the Government’s position in Peacock.

    That what the Government says is that — and verbally, I think there’s very good basis for this.

    The Government seems to say that the — particularly under subsection (2) that the question of color of authority —

    Byron R. White:

    The kind of a case you have in Rachel, they — they’re talking specifically about the kind of case you have —

    Anthony G. Amsterdam:

    I’m sure that’s right.

    That wherever the case is within — as it were, shooting distance of the constitution, the whole case comes over into the federal courts and you try it there.

    Constitutional defenses, federal defenses and the state law question all at once.

    We don’t think that that is what Congress meant.

    Now, we would be delighted to have that kind of an expansive reading of the statute.

    We don’t ask for it.

    Byron R. White:

    I just think they talked — they talk (Inaudible) about one specific kind of a case, not your kind of case?

    Anthony G. Amsterdam:

    No —

    Byron R. White:

    That — or that — oh, you’re trying the scope of — perhaps the, of the federal (Inaudible).

    Anthony G. Amsterdam:

    No.

    I think that —

    Byron R. White:

    But they think that if there’s been a denial automatically at the outset of — that the judge would try out whether or not a — for example, a prosecutor has applied the trespass statute is because somebody is a Negro?

    Anthony G. Amsterdam:

    Well, I think that the only objection that I have to characterizing as narrow or limited to our case, the Government’s contention is that it would also apply beyond sit-ins to demonstration cases generally.

    As I understand the Government, it takes the position that Judge Friendly assumed in Galamison that if the conduct is colorably protected by federal law then trial is had on the merits in a federal court to a jury.

    Now, I understand the Government’s desire for that.

    It comes from two things as I understand it, one, a feeling that efficiency is served if a single trial was had instead of two trials.

    Well, you don’t disagree with that, do you?

    Anthony G. Amsterdam:

    We don’t disagree with that but we do disagree with some of the factual assumptions that underlie it.

    And we also think that there are countervailing considerations to efficiency, one of which is that under our construction of the statute, we can honestly say that no cases taken out of the state court, in no cases the state court deprive the power to proceed except the cases shouldn’t be there in the first place.

    That’s the virtue I think of our construction of the removal statute.

    The Government’s construction of the removal statute allows the federal mechanism to come in to operation even in cases which can proceed the judgment.

    Ours is very limited.

    We think that the optimal balance to be struck between the use of the federal courts to protect federal rights and the necessity that state courts go on and on impede it in cases where federal rights are not being denied simply calls for trying whether or not federal protection does by the prosecution (Voice Overlap) —

    Byron R. White:

    Well, would you — are you saying that there’s never going to be — under your construction, you’ll never have a criminal trial in the federal court.

    Anthony G. Amsterdam:

    I would agree with that.

    Byron R. White:

    Because you’ll never have a guilty or not guilty verdict in the federal court.

    It will always be either — it’ll either be dismissed, the case will be dismissed if you found that the federal right has been violated by the constitution or they’ll be remanded for trial in a state court.

    Anthony G. Amsterdam:

    That is exactly so and that brings me to the gov — to what I think is the second consideration that informs the Government’s point because certainly in terms of efficiency you can’t quarrel the efficiency of that.

    And if one wants to talk about efficiency, you can compare what happened in Southern Alabama, for example, with the various other large demonstration episodes that have happened all over the country.

    Within three months, the Southern Alabama demonstrations and the 3,000 prosecutions arising out of them were finished, terminated, ended.

    A federal district judge on a motion to remand in a removed case found that all of those prosecutions were unfounded, that is to say, that the conduct from which they were — on which they were based was protected by the federal constitution and washed all of those cases out properly.

    Had it not been for that, the cases would still be in the middle of trial and appeal and we would have what we had in Mississippi Freedom Writer case, another case to six years to the vindication of right.

    Byron R. White:

    So what it’s really — is a federal habeas corpus before trial.

    Anthony G. Amsterdam:

    It is exactly that and there is nothing anomalous about it because we think that even if this case were tried in the state courts, as I said earlier, that the issue of federal defense as distinguished from the issue of guilt would have to be tried by the judge and not the jury.

    We do not think that federal constitutional defenses even in a state court or jury issues.

    Now the trial judge, just to make very specific what I mean, a trial judge to whom a motion to dismiss was submitted either just before verdict or just after verdict.

    In a case like Edwards and South Carolina for example, would have to decide himself whether or not the facts as testified to by the police officers on the one side and the demonstrators on the other, showed federal constitutional protection.

    Anthony G. Amsterdam:

    Now, he could say to counsel, “Counsel, I — I’m willing to go with what 12 good men (Inaudible) say.”

    And treat that that’s an advisory verdict.

    They have to decide the issue of guilt as to whether or not these people were obstructing the street and that sort of thing and that’s the same fact question, is a constitutional question.

    Byron R. White:

    Do you think Mr. Amsterdam, the — upon the — if the federal judge himself in a – some kind of a hearing, on a motion, (Inaudible) these facts in remand and the appeal is taken, occur and asserted the Smith view, the case is remanded to the state court on your — do you think the defense could be raised again?

    Anthony G. Amsterdam:

    On federal habeas corpus —

    Byron R. White:

    No.

    Anthony G. Amsterdam:

    — or do you mean a trial?

    Byron R. White:

    No, in the state court.

    Anthony G. Amsterdam:

    Oh, I have no doubt at all that it can be raised in the state court and we have that position exactly (Voice Overlap) —

    Byron R. White:

    Well, I know but — so again, even though the federal court has already determined the fact.

    Anthony G. Amsterdam:

    Oh, sure.

    No question about that.

    We have that today exactly in a two trial system.

    We have a post conviction federal habeas corpus.

    And the reason for that is that the state — the facts established in the state court may not be the same as those established in a federal court.

    And if the state court wrongly applies federal law with the facts found in the state court that would be a federal constitutional violation just as it is today.

    This Court can reverse as it did in Edwards and South Carolina, a state court proceeding in which on the facts —

    Byron R. White:

    Well, then do you think there could only one removal petition?

    Anthony G. Amsterdam:

    That raises a difficult question.

    Ordinarily —

    Byron R. White:

    Oh, I know, I just would be — I would think that the (Inaudible) consistent with your position is that it could be.

    Anthony G. Amsterdam:

    No.

    Ordinarily there can only be one removal petition.

    The reason I boggled with that was simply that in this case, and this is one of the issues that I think is pertinent to whether or not we’re properly up here on appeal.

    I think that we could if we were now sent back on the procedural ground that the appeal wasn’t timely filed — filed a new one because the first one was filed as we pointed out before the Civil Rights Act of 1964.

    I have one — before we had any ground of the sort that we now seek to sustain removal on for removing and I think that the first opportunity that we have to raise the substantive claims here we could raise them again.

    But ordinarily, only one petition could be filed.

    I don’t think that is inconsistent at all with the position that, if the case were remanded for the state court, trial should be had on the facts of the federal constitutional issue.

    Again, today, federal habeas corpus will lie in order to give every litigant having a federal claim one chance to try his federal issue before a federal judge.

    That doesn’t mean two chances.

    Anthony G. Amsterdam:

    It doesn’t mean that because one federal habeas corpus petition can be filed that two can be or that three can be.

    It only means that he has a right to have a federal court find the facts.

    But he also has a right to have a state court apply federal law right on the facts found in a state proceeding.

    So, I do not believe that if a federal court remands after finding that there’s no constitutional protection that he is deprived of the opportunity of raising the federal issue.

    New facts may turn up at the hearing in the state court.

    It may well be that the state officer testify somewhat differently than he did at the federal court.

    And at that point, he has a right to say to the state judge on a testimony which you’ve jus heard Your Honor, the federal constitution has been violated in this case and we invoke it.

    And we think that the state court is obligated to entertain that federal constitutional defense.

    Earl Warren:

    Mr. Alexander, under your theory though, what facts must be alleged in the petition for removal?

    Anthony G. Amsterdam:

    Let me answer that by specific reference but I ought to say one thing before I do.

    Mr. Justice Fortas asked earlier whether or not —

    Earl Warren:

    Well, let’s stay with this question now.

    You’ve been discussing a lot of things, won’t you answer my question please?

    Anthony G. Amsterdam:

    Right.

    The allegation in page 2 of the removal petition and this is exemplary.

    This is the one group of petitioners but its exemplary as to the others is that the petitioner sought to obtain service, food, entertainment and comfort at Leb’s restaurant, a restaurant open to the general public, 66 Luckie Street, Atlanta, Georgia.

    The further allegation is that they were arrested on this occasion for the sole purpose, and this is on page 1, of aiding, abetting and perpetuating customs and usages having historical and psychological roots with respect to serving in sitting members of the Negro race in places of public accommodation and convenience on a racially discriminatory basis and upon terms and conditions not imposed on members of the so-called White or Caucasian race.

    It is further alleged on page 4 of the record conclusorally that the petitioners are being prosecuted for acts on under color of authority derived from the Constitution and Laws of the United States.

    Now that is a characterization of the earlier allegations, which is that having entered restaurants with described addresses and restaurants which it is alleged were open to the public.

    They were refused service in a racially discriminatory basis.

    Now, we have no doubt that looked at under the Civil Rights Act of 1964.

    This is a sufficient allegation, although —

    Earl Warren:

    But aren’t both of those allegations conclusory?

    Anthony G. Amsterdam:

    Oh, no.

    They are — one couldn’t make more specific allegations of fact on two issues.

    As we understand it, there are three issues which have to be shown to demonstrate Hamm and — that Hamm and Lupper applies.

    One, that there is a restaurant involved.

    Two, that it’s covered by the Civil Rights Act of 1964.

    And three, that service was refused on racial grounds.

    The allegation that it’s a restaurant, Leb’s, a privately owned restaurant open to the general public, 66 Luckie Street, it’s impossible to allege that in greater factual detail.

    Anthony G. Amsterdam:

    The allegation that service was refused on grounds of racial discrimination is the allegation that these people were — they were seeking service, they were arrested for doing so pursuant to a deep ceded custom etcetera of racial discrimination and public service.

    Again, you could not allege more — in more detail as a matter of fact.

    Now, the only question and this is the only one on which the petition is deficient is in specifically alleging coverage under the Civil Rights Act of 1964.

    I think that’s a paper issue because I don’t think that in this Court, Georgia has — I don’t think it could, I don’t think it will state that Leb’s or Davis House number three in the heart of Atlanta, Georgia are not covered by the Civil Rights Act of 1964.

    But we think that even if they did, the factual allegations are quite sufficient.

    The factual allegation is 66 Luckie Street.

    Abe Fortas:

    Well, what’s the —

    Anthony G. Amsterdam:

    A court sitting in a —

    Abe Fortas:

    What’s the Civil Rights Act of 1964 got to do with this case, that’s what (Inaudible) mean.

    That is to say the 1964 Act was passed after this arrest, wasn’t it?

    Anthony G. Amsterdam:

    Oh, yes.

    And right after —

    Abe Fortas:

    But (Voice Overlap) — well then how do you — how do you bridge those two, Mr. Amsterdam?

    Anthony G. Amsterdam:

    Hamm and Lupper have already bridged them we think, Your Honor.

    Abe Fortas:

    Well, I understand the — then but you’re relying on rights as I understand you granted by the 1964 Act as relating back to an arrest which was made prior to the 1964 Act.

    I don’t believe Hamm touches that particular matter.

    Anthony G. Amsterdam:

    Well, if Hamm and Lupper protected prosecutions on the theory as I understand it’s a basis of Your Honor’s question that once a 1964 Act was passed, from that point on it constituted a punishment or harassment under 203 to continue with those prosecution.

    But that it did not necessarily invalidate a state arrest prior to that.

    I would go along with Your Honor on that.

    (Inaudible)

    Anthony G. Amsterdam:

    I completely agree.

    (Inaudible)

    Anthony G. Amsterdam:

    Right.

    I have no —

    (Inaudible)

    Anthony G. Amsterdam:

    I have no complaint with that and this is one of the reasons I may add, well, I put my stress on the notion that they were denied their rights by the arrest then that they cannot enforce them in a state proceeding which his now existing.

    But what we have here is a proceeding in which on July 2nd, 1964, at the time of the passage of the Act was pending.

    At that point, the Civil Rights Act of 1964 became applicable.

    The federal court which had the cases at that time was authorized to remand the proceedings or to entertain jurisdiction.

    Abe Fortas:

    I understand your procedural argument whether I agree with it or not but you still have a problem of getting — of relating the incidents here to the statute without the benefit of the Civil Rights Act separating out the question of remand juris — of remand jurisdiction and the availability of that remedy to you.

    Abe Fortas:

    You still have the problem it seems to me of relating the events here to 1443.

    And you can’t do it perhaps by — that perhaps you cannot do it by reliance on the Civil Rights Act.

    That’s the question to which I think both the Chief Justice and I had been trying to solicit your assistance.

    Anthony G. Amsterdam:

    Well, let me see if this is a satisfactory way of doing it because this seems to me — of course we point, necessarily needs follow.

    The complaint we make of the state prosecution in this case is that it itself constitutes not the arrest but the prosecution constitutes an intimidation, threat, coercion, a punishment or an attempt to punish, the language relied on in Hamm and Lupper, these three Civil Rights Act of 1964 demonstrations, sit-ins.

    Now, we say that as of July 2nd, 1964, it became impermissible for the state to maintain prosecutions whose effect was to harass, intimidate, coerce, punish persons for the exercise of the right or for seeking — I won’t put it in terms of exercise of a right, there wasn’t a right then.

    But the statute said and this Court held in Hamm and Lupper that a state could not now punish pre-act conduct which was simply sitting in a restaurant seeking service.

    We think that at that point, a federal court which has the case is called upon just as this Court called on all state courts which had such cases in Hamm and Lupper to look at the case before it and decide whether or not the case is indeed a punishment, harassment, etcetera.

    If it is, we believe that that in itself falls into effect the removal statute which is intended to give federal jurisdiction to decide just such a question.

    Now we do not for that purpose have to rely on the principle that the arrest were illegal at the time made although if necessary, we adhere to arguments previously made in this Court prior to Hamm and Lupper which we think the Court need not made — need not reach that the constitution protected the conduct alleged in this case whether — well, as the Civil Rights Act of 1964.

    Abe Fortas:

    I think we got started on this because in response to Mr. Justice Harlan’s question, I think it was some time ago, you said you’re not relying on the — this as a constitutionally protected right for purposes of this case.

    So, we start looking for some other source of the right.

    Anthony G. Amsterdam:

    If there is indeed — if the Court should come to the conclusion that the Civil Rights Act of 1964 does not bar the prosecution as in this case or is not invocable as a basis of federal jurisdiction then we indeed have a question here that we have in the Peacock case.

    Except that we have in additional substantive question, the one left open in Bell and other cases to whether or not the conduct here alleged is indeed protected by the constitution.

    Hugo L. Black:

    Mr. Amsterdam, may I ask you, I don’t know, have there been any efforts to remove cases of defendants who were arrested in California during the Watts episode?

    Had there been any questions, the efforts here to remove those cases to federal courts?

    Anthony G. Amsterdam:

    I —

    Hugo L. Black:

    It would be rather easy to charge, would it not, what you say is all is necessarily charged in order to have a trial on that issue in the federal court?

    Anthony G. Amsterdam:

    I don’t purport to speak with authority in what was in fact done in Watts.

    My recollection is that no attempt was made to remove any of those cases to the federal court.

    Hugo L. Black:

    What about New York, has there been any effort there?

    Anthony G. Amsterdam:

    Yes, there has indeed been.

    Hugo L. Black:

    Have they removed any?

    Anthony G. Amsterdam:

    The Galamison opinion in the Second Circuit effectively barred removal of cases under the various theories put forth in the present cases in the Second Circuit.

    However, there have subsequently been attempts to remove and in the Hutchinson case, for example, and others, stays have been given and there are cases pending in the Second Circuit, yes.

    Hugo L. Black:

    This law that you’re arguing now doesn’t apply just to some states, it applies to all of them.

    Anthony G. Amsterdam:

    It certainly does and it’s quite unlike in that regard the amendatory Freedmen’s Bureau Act which gave fed — general federal jurisdiction in military tribunals but only in the south.

    This one was intended to be forever and it was intended to be in all the states forever and our argument doesn’t rest as I say, on this Court’s finding or any Federal District Court’s finding that the superior court of Fulton County, Georgia is unfair or biased, whether the — in the state courts in Mississippi are unfair, biased, the state courts throughout the south are unfair and biased.

    We claim that Congress has made the judgment about state courts generally that just as in diversity cases.

    Just as in federal question cases, the rights of a federal claimant need a federal judge to protect them and that from the outset that in cases involving civil rights, criminal cases in which civil rights defenses are presented and can be sustained on the facts in front of the federal judge the case should be tried in front of a federal judge and not in front of a state judge in New York, in California or in Fulton County, Georgia.

    Hugo L. Black:

    I asked you that question because I’ve gathered from your argument, if I understand it so fully, any case, criminal or civil against a colored man anywhere in the United States can — this question can be raised or removed and if an affidavit is made that it involves prejudice against him on account of his color, they can then require the federal judge to pass on the fact to whether that’s true or not.

    Anthony G. Amsterdam:

    No.

    My argument doesn’t begin to go to that question because the only case in which I seek to sustain removal jurisdiction is a case in which the affidavit, the verified removal petition asserts not that he is being prejudiced on account of color or that the jury is prejudiced to the judge’s prejudice.

    Hugo L. Black:

    That’s it — that’s what I meant.

    Anthony G. Amsterdam:

    No.

    That — our argument would not allow removal in those cases.

    Our argument —

    Hugo L. Black:

    Not allow removal but it would allow — it would be a reason for the court to have to pass on it.

    Anthony G. Amsterdam:

    Oh!

    Hugo L. Black:

    Any prosecution takes place in any state against the person of color, would it not?

    Anthony G. Amsterdam:

    Justice Black, that is absolutely true but it doesn’t have anything to do with my argument or how this Court decides this case.

    Hugo L. Black:

    Well, it has something — does have something to do with what we decide, doesn’t it?

    Anthony G. Amsterdam:

    Yes.

    But you see, Congress has provided that if a removal petition is filed, the state court proceeding stops.

    Now no matter what you say about the scope of the removal jurisdiction or where he can always file that paper, if he’s going to be dishonest.

    I think the only way in which this Court can protect —

    Hugo L. Black:

    He might not be dishonest.

    Anthony G. Amsterdam:

    The way in which —

    Hugo L. Black:

    Why would we assume that they would be dishonest if (Voice Overlap) —

    Anthony G. Amsterdam:

    Well —

    Hugo L. Black:

    — the places whether there’s been any —

    Anthony G. Amsterdam:

    The real risk it — the risk it seems to me of interruption of state court process that flows from the removal jurisdiction is two separate risks.

    One, that the removal jurisdiction will be in fact broader than it ought to be and the cases which should not be brought into the federal court will be brought there and will stay there.

    The second one is the risk that the jurisdiction will be abused because counsel will file frivolous papers.

    It will take it into the federal court.

    In your hypothetical case Mr. Justice Black, I would not sustain removal and so the first court will — the first question whether or not the federal courts have taken jurisdiction announced to the state court in a case in which they should not is not in the case.

    And the second one in which counsel are filing wrongly that maybe either because of a mistake of law or because they’re abusing the process.

    A clear decision by this Court is to the scope of 1443 will end I think such mistakes of law.

    As per abuse by counsel, that is inherent or its potentiality is inherent whether you stick with the reason that was —

    Hugo L. Black:

    I was not talking about abuse.

    Hugo L. Black:

    I thought that there are many cases why those things couldn’t be alleged, murder cases and every other kind of cases.

    Anthony G. Amsterdam:

    But they’re not removable under our theory.

    Our theory allows removal only where (Voice Overlap) —

    Hugo L. Black:

    (Inaudible) there of the — are you — removal, would they not, if the allegation was made under oath, as you say that if this was because of prejudice against him, discrimination against him and they couldn’t get a fair trial because of their color.

    Anthony G. Amsterdam:

    Our theory of removal would not authorize removal in that case.

    Byron R. White:

    What you — aren’t you — up here, to saying that when the conduct — when the conduct for which the defendant is being prosecuted in the state court, is itself permitted, expressly permitted by a federal law?

    Anthony G. Amsterdam:

    Exactly.

    That’s the only case in which we’re arguing for removal.

    The fact that a fellow is a Negro, can’t get a fair trial —

    Byron R. White:

    (Voice Overlap)

    Anthony G. Amsterdam:

    — all of that is immaterial.

    Byron R. White:

    It’s not — this isn’t a kind of a case where you’re disclaiming that you won’t get a fair trial or that he’s being discriminated against as to —

    Anthony G. Amsterdam:

    Those cases —

    Byron R. White:

    Perhaps conduct, its permitted by federal law is now being prosecuted in a state court?

    Anthony G. Amsterdam:

    Exactly.

    Those cases are covered by Rives-Powers and we do not ask for their reconsideration here.

    We do not need to, to reach this case and we do not ask for it.

    Earl Warren:

    We’ll adjourn now.