Senator Cook. If the Senator would yield, in essence what you are saying, Mr. Hulsey, is that this was an administrative matter and not a decision on the merits?

sir.

Mr. HULSEY. I think that is true, yes,
Senator Cook. Of course Judge Carswell-

Senator BAYH. That is not what Judge Carswell said.

Mr. HULSEY. I don't think you would ever have a judge here sit here before this illustrious body and the American people and say, of course, I didn't consider it. Of course, he did. But let's say at best it was a perfunctory consideration. By that I mean he looked at the record, he saw a very distinguished district judge who ruled as he did, he saw a panel of other judges who ruled upholding that judge: he read the opinion, looked at what was before him without conducting an exhaustive study of the case, and ruled that in this particular case, he just didn't feel that it warranted an en banc hearing, because it was probably going on up to the Supreme Court anyway.

That would just be my impression of it.

The CHAIRMAN. Let us recess now until 2 o'clock.

Mr. HULSEY. Mr. Chairman, excuse me, having a tendency as I always do to talk too much, there is one thing I would like to tell the committee in view of what I have heard here for 2 days.

The CHAIRMAN. We are going to take you back at 2 o'clock.

Mr. HULSEY. Oh, you are. Excuse me, Mr. Chairman. In view of that. I will withhold this.

(Whereupon at 12:05 p.m., the hearing was recessed to reconvene at 2 p.m. of the same day.)

AFTERNOON SESSION

The CHAIRMAN. The committee will come to order.

Mr. Hulsey, before we recessed you said you wanted to make a statement.

TESTIMONY OF MARK HULSEY, JR., PRESIDENT, THE FLORIDA BAR (Resumed); ACCOMPANIED BY HON. SPESSARD L. HOLLAND, U.S. SENATOR FROM THE STATE OF FLORIDA

Mr. HULSEY. Yes, sir. I might say, Mr. Chairman, during the noon recess I got to thinking about Senator Bayh's question about the court rule with respect to requesting an en banc hearing and I have before me here rule 35 that relates to that subject, under the Federal rules of appellate procedure for all U.S. courts of appeal in the country. It is rule 35 and it gives the circumstances under which the court will grant a hearing en banc.

I will be glad to leave this with the committee or read it into the record. I think it is pertinent to what the committee is referring to. The CHAIRMAN. You can read it.

Mr. HULSEY. All right, sir, I will just read section 35(a) entitled "Determination of causes by the court en banc."

(a) When hearing or rehearing en banc will be in order:

A majority of the circuit judges who are in regular active service may order an appeal or other proceedings be heard or reheard by the Court of Appeals en banc. Such a hearing or rehearing is not favored and ordinarily will not be ordered except, (1), when consideration by the full court is necessary to secure

or maintain uniformity of its decisions or, (2), when the proceeding involves a question of exceptional importance.

That is (a); (b) relates to how you make a suggestion for the hearing, and (c) is the time when you make the suggestion.

I thought that the committee might want to have that rule, Mr. Chairman.

The CHAIRMAN. Yes, sir. Now, at this point I would like the record to show that from February 1, 1967 through December 29, 1969, 206 petitions for rehearing en banc were filed by the parties in the Fifth Circuit Court of Appeals. Of this number, 184 were denied, 20 were granted, and 12 are currently pending. You may proceed.

Mr. HULSEY. Thank you, Mr. Chairman.

I was just going to conclude my remarks before the noon recess by saying that as I recall, there was some suggestion made to Judge Carswell that there was a timelag in his decisions particularly in civil rights matters. I might say that I was counsel of record in the case entitled "Brooks v. the City of Tallahassee." It is recorded at 202 Federal Supplement page 56 and is the so-called Tallahassee Airport Segregation case.

I was almost amused when I heard that he dragged his feet, because I noted from my records that the suit was filed on June 26, 1961, the trial was held on September 15, 1961, and his order was entered on October 17, 1961: and I say to the committee that I have never been involved in any litigation during my 22 years' practice where a Federal court moved any faster than in this case of Brooks v. the City of Tallahassee.

Customarily you have a year perhaps in ordinary civil litigation in the district court, and this took something under 4 months, so I would say that on my experience with the judge, he expedited the litigation rather continuously. As a matter of fact, I recall, and I looked at my record, he telephoned me several times from Tallahassee, I lived in Jacksonville 159 miles away, and he telephoned me several times to tell me to hurry up and let's move this case on.

I might add here that frankly my experience with Judge Carswell as a lawyer has been one that he has a tendency to push you pretty hard in the handling of a lawsuit. Some people think lawyers are slow, and I guess some of them are, and he is the type of judge who is very anxious to move the case. He may offend some lawyers at times. In fact I could almost say he offended me a little bit in this Brooks case by pushing me so hard, but I have never found him to be anything other than fair, considerate, and quite a good trial judge.

The CHAIRMAN. Senator Burdick?

Senator BURDICK. No questions.

Senator HOLLAND. Mr. Chairman, might I make a brief statement? The CHAIRMAN. Yes.

Senator HOLLAND. I am sorry I was not here when Mark Hulsey, Jr., was presented to the committee. I knew his father before him. I know him and I know him well. He was a classmate of my oldest sons at the law school of the University of Florida. He served with distinction in the Navy in World War II and in the Korean war. He was a flier in the Navy, not a pilot but a navigator in the Navy, just as I was an observer in the Army Air Force in World War I, and perhaps that drew us a little closer together.

I was glad when he came out of the Korean war to suggest his appointment as an assistant district attorney in the middle district of Florida. I believe it may have been the southern district at that time. Mr. HULSEY. It was.

Senator HOLLAND. And he did serve in that capacity with highly satisfactory results until he went back into the private practice on his own. I am glad to present him and recommend him as being an outstanding member of our younger lawyer group in Florida, and that standing is reflected by the fact that he has served, and this service has been I can say with distinction as president of our Florida State Bar Association.

Mr. HULSEY. Thank you, Senator.

And, Mr. Chairman, may I make just one last comment. If this were not so serious, this charge of racism against Judge Carswell, it would almost be funny. By that I mean it is certainly ironic, because you know in Florida many people regard certain parts of the northern district of Florida as a little bit to the right of Louis the 14th, and I can tell this committee in all sincerity and honesty that Harrold Carswell has displayed unusual courage I think and faithfulness to the law that he serves in his civil rights rulings, in an altogether hostile climate.

I think he is a very strong man. I was shocked to read the speech, the young man's speech he made, because in all of my dealings with Harrold Carswell including the Brooks case I would have thought he was just the opposite, and I would think most lawyers and most people who had dealings with him in Tallahassee feel that he is indeed a fine judge. He believes in liberty and justice for all, and there is no two ways about it. Thank you, sir. I assume I may be excused? The CHAIRMAN. Thank you, sir.

Mr. Proctor hold your hand up, please, sir.

Do you solemnly swear the testimony you are about to give is the truth, the whole truth, and nothing but the truth, so help you God?, Mr. PROCTOR. I do.

Senator HOLLAND. Mr. Chairman, I have been going to Tallahassee pretty regularly for a long time both in the practice of law and in 1933, 1935, 1937, and 1939 as a member of the Florida State Senate, and then for 4 years as Governor, with two of my children marrying into Tallahassee families. I have known this young man, if you will permit me to call you young, since he was a boy, and I want to say for him that he comes from one of the fine Tallahassee families, that I believe completely in his integrity, and I recommend him in the highest terms to this committee. I am sorry I cannot stay, Mr. Chairman, because I have to go elsewhere.

The CHAIRMAN. Mr. Proctor, identify yourself for the record.

TESTIMONY OF JULIAN PROCTOR, OF TALLAHASSEE, FLA.

Mr. PROCTOR. Mr. Chairman, I am Julian Proctor. I am from Tallahassee, Fla. I have lived in Tallahassee all of my life with the exception of the time when I was away at the university-for 2 years I lived in Hartford, Conn.-and the time I spent in the Navy.

I am married. I have six children. I am an automobile dealer. I am not a lawyer. This is all new to me. I came here for some records on

f

the Capital City Country Club, which I think speak for themselves. I will be happy to turn the records over.

The CHAIRMAN. As I understand it, there was a country club organized in 1924, is that correct?

Mr. PROCTOR. The original Country Club of Tallahassee was, yes, a private country club organized in February of 1924.

The CHAIRMAN. What was the name of it?

Mr. PROCTOR. Tallahassee Country Club.

The CHAIRMAN. All right, and what became of that?

Mr. PROCTOR. On August 27, 1935, the Tallahassee Country Club deeded the property to the city of Tallahassee for financial reasons. They were having a hard time operating the club. There were few members, very few people, citizens playing golf. It was a financial burden, so they turned it over to the city for a very small, nominal sum to operate.

The CHAIRMAN. And the city did not operate it satisfactorily, is that correct?

Mr. PROCTOR. Well, that is correct.

The CHAIRMAN. Senator Holland tells me that when he was Governor it was more like a big barn there.

Mr. PROCTOR. The country club itself, the house, was an old frame building. It was run down. Termites were in it; it needed rebuilding. This was one of the few places in Tallahassee that was large enough to have parties when the legislature used to come to Tallahassee.

The CHAIRMAN. State whether or not there was a provision in the deed that it could be sold to another group.

Mr. PROCTOR. In the deed transferring the property there was a clause that stated that if at any time the city of Tallahassee decided to lease the property to others, or dispose of the property, that the original stockholders would have the right of reacquiring the property on a lease basis.

The CHAIRMAN. All right. Now, was that exercised?

Mr. PROCTOR. Yes, sir. It was exercised on February 14, 1956.
The CHAIRMAN. What was the reason it was exercised?

Mr. PROCTOR. The reason for it, the members of the country club had been unhappy with the operation of the old club. As I previously stated, the country club itself was run down. The golf course needed work. The city was not willing to spend money either to renovate or rebuild the country club because it had been a losing proposition with the city, and so the

The CHAIRMAN. The city refused to rebuild it?

Mr. PROCTOR. To build a new club?

The CHAIRMAN. Yes.

Mr. PROCTOR. Yes, sir. They refused to build. They wanted a swimming pool, and the city said that they could not afford to do it or would not do it, so for that reason the original stockholders went to the city and requested that they lease the club and the golf course back to the original stockholders.

The CHAIRMAN. All right. Now was another charter taken out then? Mr. PROCTOR. Yes. At that time the members who were active, the golfers-I would not say members of the club because they actually got together and formed a new country club. That was on April 24,

1956, the Capital City Country Club filed a certificate for a charter with the secretary of state of the State of Florida.

The CHAIRMAN. How did you finance it?

Mr. PROCTOR. We went around to the citizens of Tallahassee who were interested in the growth and the development of Tallahassee. We told them that we needed a new golf course or at least to rebuild the golf course and develop it. We also needed a country club. So a group of I guess about 25 citizens went around to probably 350 or 400 citizens of Tallahassee, asking if they would subscribe to the country club, and if they would subscribe to the club if we could get it off the ground. The CHAIRMAN. You got $100 out of Judge Carswell and Governor Collins?

Mr. PROCTOR. That is right. At that time we were asking for a $300 membership fee with $100 of it paid. We went to Judge Carswell, we went to Governor Collins, all the prominent citizens of Tallahassee, including the Supreme Court, the Cabinet, and everyone interested, and signed them up to join the country club, with a guarantee of the payment of $300 over a period of time. At the time when we had got the club started, they would pay the first $100. Judge Carswell was one of those, one of the persons that we went to, and who agreed to subscribe to the stock.

The CHAIRMAN. All right. Now then what happened?

Mr. PROCTOR. Then we began operating on May 4 of 1956. The old Tallahassee Country Club assigned its lease from the city to the Capital City Country Club, Inc. On August 23, we mailed out the notice of the first annual meeting of the Capital City Country Club. During the time before that, or at least prior to that time, we picked out 21 subscribers, and asked these subscribers to go ahead and pay the $100, and we wanted, when we petitioned, that we name them as the original subscribing board of directors. Judge Carswell's name was on this list.

Judge Carswell himself was not active. He never attended a meeting to my knowledge. I happened to be one of the original founders of the club. I attended all of the meetings, and I don't think Judge Carswell ever attended a meeting of the founders of the country club.

In September of 1956 we took over the course. On September 4 we had the first annual meeting. We elected the first board of directors of the Capital City Country Club. We submitted 42 names of those 42 names, to select 21. Judge Carswell's name was on the 42, that is on the list of 42 names. He was not elected to the board of directors of the country club. We elected seven directors for 3 years, seven for 2 years, and seven for 1 year. On January 29, we petitioned the court, the local court, to change the Capital City Country Club from a profit organization to a nonprofit organization.

The CHAIRMAN. That was the second charter, was it not?
Mr. PROCTOR. Yes. We petitioned the change.

The CHAIRMAN. Yes.

Mr. PROCTOR. Of the second charter. It of course was not granted on that date. The second charter was acknowledged in August, on August 6, 1957. On February 1, 1957 Judge Carswell requested that his name be withdrawn from the club, and asked that his original subscription or payment of $100 be refunded. I believe the record shows that he was refunded $76, and that was on February 12 of 1957.

As I mentioned, on August 6, 1957 the Capital City Country Club

40-399-70-8