on the facts, the person was exercising or attempting to exercise rights under the Civil Rights Act of 1965, along with the equal protection clause. These are all questions of fact. Judge RIVERS. That is a question of fact, the same kind of question of fact that you have in the question of removal. Senator ERVIN. I think you and I can agree, as lawyers, that any question of denial of the equal-protection-of-the-law clause can arise in any case where any statute of a State or any ordinance of a subdivision of the State is applied to any individual. And in any case it could be alleged that the denial was on account of race, color, creed, or national origin. Then there is a question as to whether an injunction shall issue. Judge RIVERS. Of course, you need more than just the fact that they allege that they have been denied these rights, because they need these other conditions here. Senator ERVIN. But if these allegations made would be sufficient to remove the case to the district court for trial, would it not be essentially a fact question under those subsections? Judge RIVERS. Oh, I do not deny that it is a factual question. Senator ERVIN. So under this, with authority to issue pendente lite injunctions, the Federal court could practically paralyze the administration of justice in the State courts upon mere allegations of discrimination. Judge RIVERS. Before they would issue an injunction, they would have a hearing. That is the difference, of course, between removal. In the case of removal, they file a petition and immediately a case is transferred to the Federal court Senator ERVIN. I understood you to state in response to a question put to you by Senator Javits that the courts could issue an injunction pendente lite in these cases. Judge RIVERS. No, I said they do not issue an injunction pendente lite. I said they do not. It would be a final injunction. And before you could get the injunction, there would have to be an application to the judge and a hearing by the judge, different from a removal. Senator ERVIN. If you do not issue an injunction pendente lite, what is to prohibit the State court from going ahead and trying the case? Judge RIVERS. You take, for example, the freedom riders. I think some of those cases are still being tried and that happened about 4 years ago. They go ahead and try those cases. Now, the fact that some of the cases might get tried, we just did not provide for any pendente lite. If the Congress felt that pendente lite should be therewe were trying to achieve a minimum result, so to speak. Senator ERVIN. This states-and I will read from line 20 on page 3 of the bill-"Such redress shall include the grant of an injunction to stay a proceeding in a State court where such a proceeding was instituted"-for these various things. Does that not imply that they can issue a preliminary restraining order, without any trial or without even hearing any testimony? Judge RIVERS. No. Senator ERVIN. In other words, the State court can go ahead and try the case while the Federal court was waiting to reach the case on its docket? Judge RIVERS. Senator, I suppose that they might have Federal rules on that "shall include the grant of an injunction." I would think that unless you write in there an injunction either permanent or pendente lite, it would be presumed that that means a final injunction, because that is the whole point of it. That is, the judge is going to have a hearing before he grants it and there is no reason for any temporary injunction there. Senator ERVIN. What is the use of the Federal court having jurisdiction to try the case on its merits when the State court can go ahead and also try the case on its merits while it is awaiting trial in the Federal court? Judge RIVERS. I would think under those circumstances, that the Federal judge could remove the case while he is debating the question of whether or not he is going to grant a permanent injunction. But it would certainly be, I am sure it would be agreeable to our committee and the bar association, if that were clarified, either by saying that it is to include a temporary injunction or the temporary injunction shall not issue, or that such redress shall include the grant of an injunction after a hearing. I mean that can be put in there so as to Senator JAVITS. Well, now, Judge, answer this question for me, please. I think this would help to clarify the situation. Is the remand procedure covered by section (3) precisely parallel to the injunctive procedure? Are the cases subject to removal and remand in section 3 exactly the same cases as are subject to injunction under section 4, or does section 4 have a different reach from section 3? I will give you a practical example of what I have in mind, so we will understand each other: Are there cases which may not be removable under section 3, but which could be enjoined under section 4? Is that the contemplation of the association? Judge RIVERS. No; the cases protected under the injunction are the same as the cases protected under removal. Senator JAVITS. So that the injunctive power is ancillary to the power to remove; correct? Judge RIVERS. Yes, sir. Senator JAVITS. Now, would it be proper, then, to have the legislation say so specifically? In that case, you would not need to deal with the pendente lite questions, because if the injunction is ancillary to the power to remove, then the injunction could be issued pendente lite or permanently under usual practice of the courts, which are subject to review on appeal. Where the judge finds no question of fact, or decides to hold the situation in status quo for a day or two or three or four, he can issue an injunction, or stay as we call it in New York. Then he can have a hearing. Would that be the practice, assuming as you do I am not ready to subscribe to it until I look at it pretty care. fully myself that the injunctive power is supported ancillary to the power to remove? If that is so, then the two can be together made a statute consistent with normal practice. Is that not so? Judge RIVERS. I think that would be excellent, that is, to show that it is a single provision, unit, that the removal provisions and equitable. relief provisions are a single unit. That would make it clear that it is ancillary. It is an additional relief. The judge could consider them together. He would have the power of removal or of injunction. Senator JAVITS. And you did not contemplate the fact that the injunctive power could be exercised in a case which was not removable? Judge RIVERS Absolutely not. Senator JAVITS. That was the view of the committee? Senator ERVIN. Judge, I certainly misconstrued your testimony, be cause you gave the illustration where you had removed one case and subsequently found in the Federal court that it was like other cases in the State court, and, therefore, could issue an injunction without removal of these other cases from the State court to the Federal court. Judge RIVERS. You did not misunderstand me. That is what I said. Senator ERVIN. That is what I thought you said. Judge RIVERS. That is what I said; yes. I said if you remove some of them and the court dismissed them, or if you had a hearing in the State court and the case was dismissed, and it was a like factual situation, in such a case the injunction would issue. Senator ERVIN. As I see the bill of the Senator from New York, there are two independent procedures established here. One is a removal procedure; the other is an injunction procedure. These do not necessarily have any relation to each other, except that the removal can be done in some cases for exactly the same reason that the injunc tion can issue in others. Judge RIVERS. Well, they have this relationship; namely, you do not start considering whether they are entitled to equitable relief until you first find that there has been a violation of the right which is defined in 14433 (3) and (4) that we have. That is the same language. It is the same language in the injunction bill, and you will see, if you look at the bill on line 23, page 3, "any exercise or attempted exercise of any right granted or secured" and it is the same languagethat is (b) (1) and (2), the same as on removal cases, (3) and (4), beginning at line 17 on page 2. It is the same language. Senator ERVIN. Yes, exactly the same language. But in the case of the injunction, there is a trial in the Federal court on the facts where a factual question is involved as distinguished from the situation where the statute or ordinance is unconstitutional on its face. In removal cases there is no trial. However, a hearing is conducted on the motion to remand to see whether the case should be removed. Judge RIVERS. That is right. Senator ERVIN. What happens to these cases when they are removed? The removal statute applies like the others to civil actions which may be brought by an individual against another individual and it applies to criminal prosecutions which are brought by the State against individuals. In effect, they are removed where there is a claim among other things, that there is a denial of the equal protection of the laws on account of race, color, religion, or national origin. Now, every person belongs to some race and every person except those who admit that they are atheists have some kind of religion, or claim some kind, and I suppose everybody has some national origin though I have never understood that term. Under this statute, a case could be removed from the State court to a Federal court on the claim that a man had been denied the equal protection of the laws on account of his race or on account of his color or on acount of his religion or on account of his national origin. Could not every case, civil and criminal, be removed under this statute from the State to the Federal Court? Judge RIVERS. Well, when you say this, the petition can allege that, that is, if it is an Anglo-Saxon and he says, "I was discriminated against because I was an Anglo-Saxon," of course, on the motion to remand, it would be remanded right away. That is the Slaughterhouse cases. Senator ERVIN. Would he have an opportunity to establish that he was discriminated against because he was an Anglo-Saxon? Judge RIVERS. Well, you have this problem. Unless you are going to say there is to be no removal, you cannot write a removal statute which cannot be abused. So you have the choice. Now, the abuse can be stopped by the Federal district judge and I doubt very much if you are going to have a lot of removal cases of the Anglo-Saxon saying that he was not served in a place of public accommodation because of his race and then he was criminally prosecuted because he attempted to get service. Senator ERVIN. Anytime I am sued for damages in an automobile case, I could file a petition and get the case removed to a Federal court on the allegation that I am an Anglo-Saxon and the law was being unequally applied to me because I am an Anglo-Saxon. Judge RIVERS. It is not that broad, Senator, because, No. 1, we have this 1964 Civil Rights Act. And certainly this Anglo-Saxon who got his automobile injured cannot says he came under the 1964 Civil Rights Act. Now, as regards the other Senator ERVIN. The other section I am referring to says, "for any exercise or attempt to exercise of any other right guaranteed, secured, or protected by the Constitution or laws of the United States against the denial of equal protection of the laws on account of race, color, religion, or national origin." Does not everybody who holds office under the State or discharges a State function, from the Governor of the State down to the township constable, represent State action? Judge RIVERS. That is right. Senator ERVIN. And cannot the question of denial of the equal protection of the laws arise in every case where any official, from the Governor down to a constable, applies the law to any person? Judge RIVERS. Where it denies the equal protection of the law. Judge RIVERS. That is State action. Senator ERVIN. In other words, a question of denial of the equal protection of the laws can arise in any case where any person who represents the power of the State applies any State law, any State function, or any State program to any individual. Judge RIVERS. If it is going to be under this subdivision (3) denial of the equal protection of the law on account of race and so forth, the complainant would have to put it under some of the decided cases. Now, I have collected here nine other instances where, as a result of Supreme Court decisions, there is denial of the equal protection of the law. 65-506 0-66-pt. 2- -6 (These citations follow :) Rights "granted, secured or protected by the Constitution or laws of the United States against the denial of equal protection of the laws on account of race" (S. 3170, Sec. 3(a)). Rights enumerated in S. 3296 and H.R. 14765, Sec. 501 (a), with exemplary citations to Supreme Court decisions explicating them. Prohibition of racial discrimination or segregation in: (1) Voting Constitution: Louisiana v. United States, 380 U.S. 145 (1965). Laws: Voting Rights Act of 1965. South Carolina v. Katzenbach, 383 U.S. 301 (1966). Civil Rights Acts of 1957, 1960, 1964 (Title I). (2) Public education Constitution: Brown v. Board of Education, 347 U.S. 483 (1954). Laws: Civil Rights Act of 1964, Title IV. (3) Publicly provided facilities Constitution: Parks Watson v. Memphis, 373 U.S. 526 (1963). State-involved facilities: Burton v. Wilmington Parking Authority, 365 Laws: Civil Rights Act of 1964, Title III. (4) Employment Laws: Civil Rights Act of 1964, Title VII. Steele v. Louisville & N.R. Co., 323 U.S. 192 (1944). (5) Housing Constitution: Buchanan v. Warley, 245 U.S. 60 (1917). Shelley v. Kraemer, 334 U.S. 1 (1948). Barrows v. Jackson, 346 U.S. 249 (1953). Laws: Title IV, S. 3296 and H.R. 14765. (6) Jury service Constitution: Strauder v. West Virginia, 100 U.S. 303 (1880). Laws: Titles I and II, S. 3296 and H.R. 14765. (7) Transportation Constitution: Morgan v. Virginia, 328 U.S. 373 (1946). Fitzgerald v. Pan Am, 229 F 2d 499 (1956) 2nd Circuit. Laws: Interstate Commerce Act, 49 U.S.C. §§ 3(1), 316(d). Boynton v. Virginia, 364 U.S. 454 (1960). I.C.C. Regulations issued 9/22/61, 49 C.F.R. 180a. Civil Aeronautics Act, 49 U.S.C. § 484 (b). |