Page images
PDF
EPUB
[blocks in formation]

MR. JUSTICE STEWART delivered the opinion of the Court.

This case presents questions concerning the scope of a century-old federal law that permits a defendant in state court proceedings to transfer his case to a federal trial court under certain conditions. That law, now 28 U. S. C. § 1443, provides:

“1443. Civil rights cases.

“Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:

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

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

be inconsistent with such law." The case arises from a removal petition filed by Thomas Rachel and 19 other defendants seeking to transfer to the United States District Court for the Northern District of Georgia criminal trespass prosecutions pending against them in the Superior Court of Fulton County, Georgia. The petition stated that the defendants had been arrested on various dates in the spring of 1963 when they sought to obtain service at privately owned restaurants open to the general public in Atlanta, Georgia. The defendants alleged:

“their arrests were effected for the sole purpose of aiding, abetting, and perpetuating customs, and usages which have deep historical and psychological roots in the mores and attitudes which exist within the City of Atlanta with respect to serving and seating members of the Negro race in such places of public accommodation and convenience upon a racially discriminatory basis and upon terms and conditions not imposed upon members of the socalled white or Caucasian race. Members of the socalled white or Caucasian race are similarly treated and discriminated against when accompanied by

members of the Negro race." Each defendant, according to the petition, was then indicted under the Georgia statute making it a misdemeanor to refuse to leave the premises of another when requested to do so by the owner or the person in charge." On these allegations, the defendants maintained that removal was authorized under both subsections of 28 U. S. C. § 1443. The defendants maintained broadly that they were entitled to removal under the First Amendment and the Due Process Clause of the Four

1

i The statute under which the defendants were charged, Ga. Code Ann. § 26–3005 (1965 Cum. Supp.), provides:

Refusal to leave premises of another when ordered to do so by owner or person in charge. It shall be unlawful for any person, who is on the premises of another, to refuse and fail to leave said premises when requested to do so by the owner or any person in charge of said premises or the agent or employee of such owner or such person in charge. Any person violating the provisions of this section shall be guilty of a misdemeanor and upon conviction thereof shall be punished as for a misdemeanor."

[ocr errors]
[ocr errors]

teenth Amendment. Specifically invoking the language of subsection (1), the "denied or cannot enforce” clause, their petition stated:

"petitioners are denied and/or cannot enforce in the Courts of the State of Georgia rights under the Constitution and Laws of the United States providing for the equal rights of citizens of the United States . . . in that, among other things, the State of Georgia by statute, custom, usage, and practice sup

ports and maintains a policy of racial discrimination.” Invoking the language of subsection (2), the "color of authority” clause, the petition stated:

"petitioners are being prosecuted for acts done under color of authority derived from the constitution and laws of the United States and for refusing to do an act which was, and is, inconsistent with the Consti

tution and Laws of the United States." On its own motion and without a hearing, the Federal District Court remanded the cases to the Superior Court of Fulton County, Georgia, finding that the petition did not allege facts sufficient to sustain removal under the federal statute. The defendants appealed to the Court of Appeals for the Fifth Circuit.?

2

2

2 We reject the State's contention that the appeal was untimely. The notice of appeal was filed 16 days after the order of remand. Although Rule 37 (a)(2) of the Federal Rules of Criminal Procedure requires that an appeal be taken within 10 days after entry of the order appealed from, that rule does not govern an appeal taken prior to verdict, finding of guilty or not guilty by the court, or plea of guilty. This Court promulgated Rules 32–39 under authority of the Act of February 24, 1933, which authorized only rules governing proceedings in criminal cases after verdict, finding of guilty or not guilty by the court, or plea of guilty. 47 Stat. 904, as amended, 18 U. S. C. 3772 (1964 ed.). See 327 U. S. 825. In 1940, Congress authorized the Court to prescribe rules for criminal proceedings prior to verdict, finding of guilty or not guilty by the court, or plea of

3

While the case was pending in that court, two events of critical significance took place. The first of these was the enactment into law by the United States Congress of the Civil Rights Act of 1964, 78 Stat. 241. The second was the decision of this Court in Hamm v. City of Rock Hill, 379 U. S. 306. That case held that the Act precludes state trespass prosecutions for peaceful attempts to be served upon an equal basis in establishments covered by the Act, even though the prosecutions were instituted prior to the Act's passage. In view of these intervening developments in the law, the Court of Appeals reversed the District Court. In terms of the language of § 1443 (1), the court held that, if the allegations in the petition were true, prosecution in the courts of Georgia under that State's trespass statute, substantially similar to the state statutes involved in Hamm, denied the defendants a right under a law providing for equal civil rights—the Civil Rights Act of 1964. The case was therefore returned to the District Court, with directions that the defendants be given an opportunity to prove that their prosecutions had resulted from orders to leave public accommodations "for racial reasons.” Upon such proof, the court held that Hamm would then require the District Court to order dismissal of the prosecutions. 342 F. 2d 336, 343.

We granted certiorari to consider the applicability of the removal statute to the circumstances of this case. 382 U. S. 808. No issues touching the constitutional

guilty. 54 Stat. 688, as amended, 18 U. S. C. $ 3771 (1964 ed.). But this authorization required that the rules be submitted to Congress before they could take effect. Only Rules 1-31 and 40-60 were so submitted. 327 U. S. 824.

3 “The Supremacy Clause, Art. VI, cl. 2, requires this result where 'there is a clear collision' between state and federal law ...." Hamm v. City of Rock Hill, 379 U. S. 306, 311.

power of Congress are involved. We deal only with questions of statutory construction.

The present statute is a direct descendant of a provision enacted as part of the Civil Rights Act of 1866. 14 Stat. 27. The subsection that is now $1443 (1) was before this Court in a series of decisions beginning with Strauder v. West Virginia, 100 U. S. 303, and Virginia v. Rives, 100 U. S. 313, in 1880 and ending with Kentucky v. Powers, 201 U. S. 1, in 1906. The Court has not considered the removal statute since then, one reason being that an order remanding a case sought to be removed under & 1443 was not appealable after the year 1887.6 In $ 901 of the Civil Rights Act of 1964, however, Congress specifically provided for appeals from remand orders in § 1443 cases, so as to give the federal reviewing courts

* For a remarkably original and comprehensive discussion of the issues presented in this case and in City of Greenwood v. Peacock, post, see Amsterdam, Criminal Prosecutions Affecting Federally Guaranteed Civil Rights: Federal Removal and Habeas Corpus Jurisdiction to Abort State Court Trial, 113 U. Pa. L. Rev. 793 (1965).

5 The intervening cases were: Neal v. Delaware, 103 U. S. 370; Bush v. Kentucky, 107 U. S. 110; Gibson v. Mississippi, 162 U. S. 565; Smith v. Mississippi, 162 U. S. 592; Murray v. Louisiana, 163 U. S. 101; Williams v. Mississippi, 170 U. $. 213. See also Dubuclet v. Louisiana, 103 U. S. 550; Schmidt v. Cobb, 119 U. S. 286.

6 Prior to 1875, a remand order was regarded as a nonfinal order reviewable by mandamus, but not by appeal. Railroad Co. v. Wiswall, 23 Wall. 507. In 1875, Congress provided for review "by the Supreme Court on writ of error or appeal, as the case may be." 18 Stat. 472. Twelve years later, however, Congress closed off the appellate avenue in the following language: "and no appeal or writ of error from the decision of the circuit court so remanding such cause shall be allowed.” 24 Stat. 553. Compare Gay v. Rufj, 292 U. S. 25, 28–31. In the case of In re Pennsylvania Co., 137 U. S. 451, this Court held that the 1887 statute was also intended to bar review by mandamus. Until its amendment in 1964, the modern version of the statutory bar, 28 U. S. C. § 1447 (d), prohibited review of a remand order "on appeal or otherwise” in cases removed pursuant to any statute.

[ocr errors]
[ocr errors]
[ocr errors]
« PreviousContinue »