Thomas Rachel v. State of Georgia

GRIFFIN B. BELL, Circuit Judge

(concurring in part and dissenting in part):

I regret that I cannot concur altogether in the opinion of the majority. The reasoning preliminary to the holding therein seems to embrace the following steps. We begin with the jurisdictional base, i. e., the removal statute. 28 U.S. C.A. § 1443(1). Next, the case of Kentucky v. Powers, 1906, 201 U.S. 1 , 26 S.Ct. 387 , 50 L.Ed. 633 , is cited for authority that the removal statute is limited to those situations where a state law gives rise to the deprivation of equal civil rights by reason of which a defendant seeks to invoke federal jurisdiction. Then the removal petition itself is construed, and the conclusion reached that appellants do indeed assert that they were being denied their equal civil rights in the state court because of a Georgia statute. The fact that the statute is nowhere specified is met by applying the philosophy of federal notice type pleading to the bare allegation of the removal petition, to the end of assuming that the petition referred to Georgia Code § 26-3005, the anti-trespass statute. 1 It is *344 also assumed that appellants will claim on hearing that the statute is either unconstitutional on its face or as applied by the state court to appellants. The unconstitutionality in application may be claimed on the holding of the Supreme Court in Hamm v. City of Rock Hill, 1964, 379 U.S. 306 , 85 S.Ct. 384 , 13 L.Ed.2d 300 , in its retroactive application of the Civil Rights Act of 1964 for reason of national policy to the socalled sit-in cases. That case protects persons engaged in peaceable sit-ins in restaurants covered by the Act from prosecution.

Thus, the majority concludes that the removal petition may fairly be read as alleging a -valid claim for removal under 28 U.S.C.A. § 1443 (1). And up to this point, I am in agreement with the majority. That is, I agree that the removal petition may now be read to allege that appellants are unable to enforce in the Georgia courts the right, conferred by the Civil Rights Act of 1964 as construed by Hamm v. City of Rock Hill, to be free from prosecution under state trespass statutes for peaceful sit-in demonstrations. The fact is that appellants were being prosecuted under such a statute, viz., Ga.Code § 26-3005. Therefore I also agree that the District Court erred in remanding to the state court without a hearing. However, I wish to disassociate myself from that part of the holding as to how these cases are to be treated on remand to the District Court.

We should reverse and remand for a hearing on the question of jurisdiction. But, the majority states, and this is where I disagree, that upon remand the trial court should give appellants the opportunity to prove their allegations as to the purpose of the arrests and prosecutions, and in the event the refusal of service in places of public accommodation was for racial reasons, then under the authority of the Hamm case it would become the duty of the District Court to dismiss the prosecutions. If this is all that remains for consideration on remand, the holding of the majority is tantamount to applying Hamm v. Rock Hill in all its sweep against trespass statutes, retroactively to the State of Georgia. It is, in effect, a holding that Georgia has applied and will continue to apply its trespass statute contrary to the teachings of the Supreme Court in Hamm, even though Hamm had not been decided when the cases were in the state courts and even though the state courts have not had an opportunity to deal with these cases in the light of Hamm. In dispensing with the requirement that appellants prove on remand that the Georgia courts will not accord them their rights under the Hamm decision, the theory of the majority must be that Hamm has tainted these prosecutions ab initio, and hence jurisdiction in the federal court has been established retroactively by the very fact that the prosecutions were ever commenced. This casual treatment of the Georgia courts is a striking departure from my concept of Federalism and from the duty which I think comity imposes upon us with regard to that system.

The fact is that the Supreme Court had never, before and absent Hamm and the 1964 Civil Rights Act, held the use of state trespass statutes under the circumstances here presented to be unconstitutional. This was one of the -problems that the Civil Rights Act sought to obviate. See the following cases where the question was pretermitted: Griffin v. State of Maryland, 1964, 378 U.S. 130 , 84 S.Ct. 1770 , 12 L.Ed.2d 754 ; Barr v. City of Columbia, 1964, 378 U.S. 146 , 84 S.Ct. 1734 , 12 L.Ed.2d 766 ; Robinson v. State of Florida, 1964, 378 U.S. 153 , 84 S.Ct. 1693 , 12 L.Ed.2d 771 ; Bell v. State of Maryland, 1964, 378 U.S. 226 , 84 S.Ct. 1814 , 12 L.Ed.2d 822 ; and Bouie v. City of Columbia, 1964, 378 U.S. 347 , 84 S.Ct. 1697 , 12 L.Ed.2d 894 . We recognized this fact in Poole v. Barnett, 5 Cir., 1964, 336 F.2d 267 . It is now undoubtedly true that the 1964 Civil Rights Act and the -Hamm decision have placed a gloss on state trespass statutes so that they may not be applied against those peaceably seeking *345 service in restaurants covered by the Act, or against those whose prosecutions for such activity were pending at the time of the passage of the Act. However, in view of this gloss being of a supervening nature, I would give the Georgia court from whence these cases were removed a chance to apply the Hamm doctrine unless appellants can demonstrate on remand to the District Court that the Georgia court would not fairly accord them their rights under Hamm.

Thus, on remand the District Court should first determine just what appellants do claim under the present allegations of their notice type pleading. If they contend that the statute is unconstitutional in its application to them by the state, by virtue of the Hamm case or otherwise, then the question will arise whether the state in fact seeks to apply the statute in an unconstitutional manner. If it appears, and the burden would be on appellants to show this, that the state will apply the statute contrary to the teachings of Hamm, the District Court should deny remand and retain the cases for disposition; otherwise, the cases should be remanded.

I doubt that appellants can point to any right that would be jeopardized by remand to the state court. The Supreme Court of Georgia has already applied Hamm to a group of sit-in convictions with the result of abating the conviction and ordering the cases dismissed. Bolton, et al. v. State of Georgia, 140 S.E.2d 866 , decided February 8, 1965. Such jeopardy as may be involved is jeopardy to our dual system of courts, federal and state. And a federal court should not lightly intrude into a sphere of activity left to state and local government under the Constitution: the maintenance of local order. Because the decision of the majority goes to the point of vesting jurisdiction in the federal court retroactively, a step further than the Supreme Court went in Hamm, I respectfully dissent.

. “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. (GaXaws 1960, p. 142)”