Senator Cook. If this were the procedure of your organization, clearly you knew it, and I suppose that the lawyers that came there knew it also.

Mr. KNOPF. Yes.

Senator Cook. That the procedure was really

Mr. KNOPF. This was with regard to the voting registration.
Senator Cook. Correct.

Mr. KNOPF. Because we wanted to keep the project going.
Senator Cook. That is correct.

Mr. KNOPF. And have volunteers available.

Senator Cook. Mr. Rosenberger this morning made a great deal to do about the fact that these people's rights had not been adjudicated in Federal court by reason of the fact that their sentences were commuted at the local level and therefore the question became moot. Now it was the procedure of your organization hopefully that none of these cases would be tried in the Federal courts anyway, is that not true?

Mr. KNOPF. This is the voter project. Mr. Rosenberger was talking about something entirely separate from the voting project.

Senator Cook. In other words, in the airport case?

Mr. KNOPF. That is right. This had nothing to do whatsoever with the voting project.

Senator Cook. In other words, in those cases you intended to pursue them. In those cases you intended to pursue them to a conclusion in the Federal court. I am not really trying to argue with you. I am just trying to get it straight.

Mr. KNOPF. To be frank, sir, all I know is what I heard Mr. Rosenberger testify to. I had nothing to do with the Tallahassee ministers case. I was not in the courtroom. I did not participate in filing the papers or working with Mr. Rosenberger.

Senator Cook. In other words, in the voting right cases, it was your desire that these questions really die in the Federal courts for failure of prosecution, and that in other cases not involved with voting rights, such as the Tallahassee airport case, that you all would pursue these things and that they would be tried at the Federal court level, is that

correct?

Mr. KNOPF. All I know is what I heard Mr. Rosenberger testify to and I understood that that was his testimony.

Senator Cook. Well, he did not testify to the fact that on a mere filing of a writ of habeas corpus, on a simple writ of removal, that these cases would be allowed to die in the Federal courts.

Mr. KNOPF. No.

Senator Cook. He took the position that these cases would be vigorously prosecuted in the Federal courts, and I merely want to get it correct. Again I say I really don't want to argue. I noticed that you said when you got a petition of removal, that once they got into Federal court you hoped that they would sit there and they would be taken off the docket. As a matter of fact, I think as the Wechsler case was after 2 years for failure to prosecute.

Mr. KNOPF. Assuming of course the worker was out of jail and not in jail, then we had hoped that it would not go fully to prosecution. Senator Cook. But for the record you do want to make a distinction, because I do not want to put words in your mouth, you do want to make a distinction between the voter right cases and those cases which called for a writ of habeas corpus.

Mr. KNOPF. Yes, sir. I was testifying solely with regard to what I knew of the voter rights cases.

Senator Cook. All right.

Mr. KNOPF. And those that I handled.

Senator Cook. I wanted to get that straight in fairness to you and to Mr. Rosenberger. Thank you.

Senator TYDINGS. I have a couple of questions. As I understand it, Mr. Knopf, the reason that you felt that the treatment accorded to you in Carswell's district was not fair in the matter of the remand did not relate so much to the substantive law as it did to the fact that he acted, first of all, sui sponte, on his own motion, without any request from the State. He acted without notice or hearing to the defendants in an area in which the law at very best was murky, and he refused to grant any sort of stay pending the appeal, and that the effect of his order, of course, was to keep the individuals in jail.

Mr. KNOPF. Yes, sir, I testified that that was the course of events that occurred.

Senator TYDINGS. Now, you indicated that in the colloquy between Judge Carswell and Mr. Lowenthal, Judge Carswell expressed his displeasure on out of staters coming into Florida, particular northern lawyers. Did he talk about or express his displeasure with the civil rights workers coming in on the voter registration projects? Did he discuss that?

Mr. KNOPF. I can't recall, as I said before, any specific quotes. I just remember that it was quite clear to me that he was against the whole project and all of the efforts.

Senator TYDINGS. He was against the whole voter registration project for the Tallahassee area?

Mr. KNOPF. That he was against the civil rights work that was going on in the Tallahassee area, that is correct.

Senator HRUSKA. On the effect of Judge Carswell's rulings on your motion to remand and also your petition, the effect could not have been for these people to continue in jail, because the order of remand granted the right of bail. The second paragraph of the order to remand says "the petitioners here, defendants in the action pending and in the justice of the peace court shall be allowed to make new bond or reinstate old bond on the original proceeding in an amount not more than that originally set pending trial or other proceeding in accordance with the law.

So even that order of remand didn't keep them in jail, and the writ of habeas corpus having been granted, the writ didn't keep them in jail, isn't that true?

Mr. KNOPF. As I understand it, the writ released them from jail on their first conviction before the county court, which was a nullity, because county courts had no jurisdiction. But since the matter was remanded, the county court could go ahead and try them again and put them in jail again, and in that jail charge there would be this habeas wouldn't be applicable.

Senator HRUSKA. But they would be able to make new bond or have the old bond continued in force according to the order of remand. Mr. KNOPF. As I understood it, that order of remand-well, if what you tell me is true it sounds that they probably could make bail if they could get the money which was a large problem among the workers.

Senator TYDINGS. Were they able to get the money?

Mr. KNOPF. Yes, eventually the money was put up, I believe by the town, the black townspeople. A drive was made to collect the bail

money.

Senator TYDINGS. How long did they have to stay in jail?

Mr. KNOPF. I really don't recall. I think it was less than a week. It may have been just a few days. I really don't remember.

Senator Cook. I think Mr. Lowenthal said 2 days, once he got his order from the Fifth Circuit, in that particular case.

Mr. KNOPF. But as I understand it, the trial was never held again in the county court, because a stay was obtained from the Fifth Circuit. The stay was obtained by attorneys who went directly to the Fifth Circuit, the stay of removal-a stay of remand order, I misspoke— so there could be no trial again in the county court.

Senator HRUSKA. Well, Mr. Lowenthal says in the transcript:

They got out of jail the morning after the habeas corpus and remand. They got out of jail on bail that Judge Carswell said they could get out on if they could get the bail. It took overnight to get the bail. The stay from the Fifth Circuit prevented further proceeding by the Gadsden county prosecutor pending the appeal.

Senator BURDICK. Anything further, gentlemen?

The committee is in recess until 2 o'clock.

(Whereupon, at 12:45 p.m., the committee was recessed, to reconvene at 2 p.m., of the same day.)

AFTERNOON SESSION

The CHAIRMAN. The committee will come to order. Mr. Waits. Hold your hand up, please, sir.

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

The CHAIRMAN. Please identify yourself for the record.

TESTIMONY OF MARVIN S. WAITS, CLERK OF THE U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA

Mr. WAITS. Yes, sir; my name is Marvin Waits. I am clerk of the U.S. District Court for the Northern District of Florida.

The CHAIRMAN. Before you were clerk, what was your position? Mr. WAITS. I was supervisor deputy U.S. marshal for the Northern District of Florida stationed in Tallahassee, sir.

The CHAIRMAN. What years were you?

Mr. WAITS. I was appointed deputy U.S. marshal in March 1946, sir. The CHAIRMAN. And when were you appointed clerk?

Mr. WAITS. I was appointed clerk of the court January 1, 1966. The CHAIRMAN. Were you around Judge Carswell much when you were there?

Mr. WAITS. I moved. I was transferred from Gainesville, Fla. to Tallahassee, Fla. in July 1953, and at that time Judge Carswell was appointed U.S. attorney, and that was my first acquaintance with Judge Carswell.

The CHAIRMAN. Answer my question. Were you around him much when you were marshal?

Mr. WAITS. Yes, sir, yes, sir.

The CHAIRMAN. Were you in his court much?

Mr. WAITS. I was in his court nearly every time there was court, sir. The CHAIRMAN. As clerk of course you swear all the witnesses? You are in court now, are you not?

Mr. WAITS. Yes, sir.

The CHAIRMAN. You heard the testimony before Judge Carswell's hostility toward northern lawyers?

Mr. WAITS. Yes, sir.

The CHAIRMAN. State whether that is true or not.

Mr. WAITS. I have never heard Judge Carswell make any derogatory remarks about any counsel, whether he comes from the East, West, North, or South, sir.

The CHAIRMAN. And that as long as he has been judge?

Mr. WAITS. That is as long as he has been judge, sir.

Senator HRUSKA. Mr. Waits, this morning we had some filing fees for cases discussed, and particularly in removal cases. But whether they are removal cases or not how does the clerk determine those fees? How does he determine how much to charge?

Mr. WATTS. The clerk determines his fees from the clerks manual. The manual is published by the Administrative Court of the United States, from the Supreme Court.

Senator HRUSKA. And you are supposed to go by that manual that is furnished you by the Administrative Office?

Mr. WAITS. Yes, sir.

Senator HRUSKA. Suppose you don't make a charge in compliance with that manual, what happens when an audit is made of those books? Mr. WAITS. When the audit is made and the money does not coincide with the cases, then it is the clerk's responsibility to make up any deficit.

Senator HRUSKA. So that if a fee should have been charged according to that manual and you didn't charge it and collect it, you are personally responsible as clerk?

Mr. WAITS. That is true.

Senator HRUSKA. Is that right?

Mr. WAITS. That is true.

Senator HRUSKA. Does the judge have anything to do with fixing the fees and determining their amounts?

Mr. WAITS. No, sir.

Senator HRUSKA. What did the manual that was in effect in August 1964 provide by way of fees for removal cases?

Mr. WAITS. Sir, the only thing I can say is the manual that was given to me when I became clerk in 1966.

If you will bear with me a minute. I have a Xeroxed copy of the manual that was in the clerk's office in 1966, sir. This was from a manual dating back, I think, to 1952 through 1966.

Senator HRUSKA. What number is it, and read the applicable part, please.

Mr. WAITS. It is 1210 of the clerk's manual, which states as follows: The statute which now governs as to fees for the commencement of civil cases is title 28 United States Code section 1914 which reads in part as follows:

A. The clerk of each district court shall require the parties instituting any civil action suit or proceedings in such court whether by original process, removal

or otherwise, to pay a filing fee of $15 except that on application for a writ of habeas corpus the filing fee is $5.

Senator HRUSKA. Now some mention was made here of a court decision in the fifth circuit court, in which there was a ruling that fees be dispensed with in certain of these removal cases. What do you know about that?

Mr. WAITS. Sir, the Administrative Office of the U.S. Courts published a new manual that I received in 1966, and this is a Xeroxed copy of section C, 1001.5. It says:

"Note. New language effective April 1, 1966: underscored. "A." And this is underscored:

"Criminal cases removed from state courts; filing fees are not chargeable for filing of petitions to remove criminal prosecutions from state courts (Lefton v. The City of Hattisburg)."

Senator HRUSKA. That was the case that was cited. Give us the date of that revised manual again. When did it take effect as designated by the Administrative Office of the U.S. Supreme Court?

Mr. WAITS. Sir, it says "Note. New language effective April 1, 1966 underscored" and this paragraph is underscored.

Senator HRUSKA. And the Wechsler case, of course, the happenings on that were back in 1964 under the other matter?

Mr. WAITS. That is true, sir.

Senator HRUSKA. You have provision, don't you, for applications in forma pauperis, where there is an allegation by a litigant that he is not able to pay a fee?

Mr. WAITS. Yes, sir.

Senator HRUSKA. Have you ever know of any case in Judge Carswell's court where that allegation was made where it had been refused by Judge Carswell?

Mr. WAITS. No, sir; not any case accompanied by any affidavit in forma pauperis.

Senator HRUSKA. Have you known of any cases where he has allowed the parties to proceed without the fees?

Mr. WAITS. Yes, sir.

Senator HRUSKA. In cases where there was an allegation that they could not pay it?

Mr. WAITS. Yes, sir; when the affidavit accompanies the petition they are filed without prepayment of fees by order of the court.

Senator HRUSKA. Now another matter that was discussed this morning was the matter of the service of writ of habeas corpus. Senator KENNEDY. Would the Senator yield on this point? Senator HRUSKA. On this point I will be happy to.

Senator KENNEDY. Do you know from your own personal experience whether any of those cases where Judge Carswell waived the payment of the fee, involved civil rights matters or voting rights matters! Mr. WAITS. No, sir; to my knowledge I couldn't say, sir.

Senator KENNEDY. Was there ever a time to your knowledge that a petition was entered by any civil rights workers or voter registrars which said that they didn't have the resources to pay such filing fees and in which the judge himself waived the paying of such fees? Do you remember such cases?

Mr. WAITS. No, sir; not since I have been clerk, in 1966.