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Then in regard to the other problem of the speed of the Pensacola plan, they said flatly: “It has not gone far enough...” And then this is kind of cute: The court of appeals says:“We are reluctant to substitute our judgment for that of the district court." And then they go on and specifically tell him what to do. I take it they did this because they were rather scared he would not do it if they did not tell him exactly what they wanted, and the court then spells out how much further he has to go in order to meet their requirements.

The second case occurs in 1964. Due v. Tallahassee Theaters, Inc., 333 F. 2d 630. This was a complaint under sections 1981, 82, 83 and 85, of title 42 of the United States Code against the two theater corporations, their managers, the city officials and the city of Tallahassee, alleging a conspiracy to deny Negroes the right to go to movie theaters.

Judge Carswell threw it out on a motion to dismiss, and this is what the court of appeals said to him, again chastising him and again unanimous:

The orders of the trial court dismissing the complaint for failure to allege a claim on which relief could be granted can be quickly disposed of. These orders were clearly in error.

And then they go on to say this. They set forth the essence of the complaint in the opinion not as the plaintiffs had stated it but as the defendants had stated it, and then court of appeals said:

This appears to be a classical allegation of a civil rights cause of action.”

In other words, Judge Carswell without a hearing had thrown out what the court of appeals said was "a classical allegation of a civil rights cause of action.” Then they went on to reverse him a second time in the same case.

He had not only thrown out the case of everyone except the sheriff, but he granted the sheriff summary judgment, because the sheriff in an affidavit said he had not conspired with anybody.

The court said in effect:

You cannot give summary judgment on a sheriff's affidavit that he did not conspire with anybody. You have got to have a trial on whether he conspired with anybody."

And they reversed him on that point too.

The third case is Wechsler, which has been much discussed and bruited about here. I regret that Senator Hruska is not here for this discussion, but possibly he will be here later. So we can discuss it after I have concluded my direct testimony.

The style of that case is Wechsler v. County of Gadsden, Fla., 351 F. 2d 311, in 1965. I am not going to repeat the facts in that case. You have heard them from Lowenthal, Knopf and Rosenberger. But there are two points that are worth making.

First, Senator Hruska said that the court of appeals "relied on Peacock.” I wrote that down. The court of appeals in reversing Judge Carswell unanimously relied on Peacock and on Rachel. Now I have re-read Peacock and Rachel.

Senator Cook. You mean the Supreme Court?
Mr. RAUH. The Supreme Court; yes, sir,
Senator Cook. The fifth circuit?

Mr. Rauh. When the fifth circuit sent it back, they sent it back on their own decisions in that area.

Senator Cook. That is right.

Mr. RAUH. And then later both of those cases went to the Supreme Court. Now I have re-read Rachel and Peacock and the only candid thing a lawyer could say to you is that it is debatable whether the Wechsler case fell under Rachel or Peacock. I can state what the problem is easier than I can give you the answer.

Rachel held that if a person is relying on a Federal statute when he does the act involved, he can remove to Federal court from a State criminal prosecution for that act. Peacock holds that when he is not relying on a Federal statute as a basis of the act for which he is arrested by the State, he cannot remove simply because he says " I cannot get a fair State trial" or "My first amendment rights are being infringed."

It is not clear which this was in Wechsler. I want to make this perfectly clear, because I think we could spend all day arguing whether Wechsler was Peacock or Rachel, and I think this is unnecessary. And that brings me to the second point and the most important point about this case where Senator Hruska was wrong.

He also said that Peacock in the Supreme Court denied the principle of automatic removal, and permitted sua sponte remands without hearings. He did not say without hearings and I want to make this perfectly clear. He did say sua sponte.

Now Peacock does not say that, and that is the important point for the present situation. Peacock is an appeal from two cases. It is an appeal from a case called Peacock in the fifth circuit, and it is an appeal from a case called Weathers in the fifth circuit. In both of those cases, there was a motion for remand. There was a hearing. In neither of those cases was it either on the judge's own motion to remand or without a hearing.

Then later in the Peacock case in the Supreme Court, the judges are saving whv thev did what they did. The five judges in the majority are apologizing to a degree to the civil rights movement for what ther have done by saying there is not a right of removal.

What the Supreme Court majority said was if there were a right of removal in Peacock, every criminal case in the South would be tried in a Federal court and we cannot go that far. In explaining how far that would go, they say this:

If the individual petitioner and I am now quoting from page 832 of the Supreme Court's decision in Peacock 384 U.S. 808 – If the individual petitioners should prevail in their interpretation of section 1443(1), then every criminal case in every court of every State-on any charge from a $5 misdemeanor to firstdegree murder-would be removable to a Federal court upon a petition alleging (1) that the defendant was being prosecuted because of his race and that he was completely innocent of the charge brought against him, or (2) that he would be unable to obtain a fair trial in the State court. On motion to remand, the Fed. eral court would be required in every case to hold a hearing.

What the Supreme Court is saying there is the real reason why they refused removal in Peacockbecause everybody would remove every criminal prosecution from the State court to the Federal. Then there would be a motion to remand by the State. Then there would be a hearing on that and an apneal and this is too much for the Federal courts. It is the exact opposite, I respectfully submit, from what Senator Hruska had indicated.

The Supreme Court made perfectly clear in Peacock that removal was automatic. There had to be a motion to remand, and there had to be a hearing on that motion to remando

Now, what did Judge Carswell do? Judge Carswell without a motion for remand, without a hearing, did in fact remand. I respectfully suggest, and I carefully note my words, I respectfully suggest that he thereby violated the testimony of Lowenthal, Rosenberger, and Knopf when they said that he wanted to remand so the protesters would not get out. I think that when you see that double violation not on the ultimate substance of Peacock as to which I have tried to be candid and fair, not on the ultimate substance or substantial point of Peacock on which there is a debate, but on the fact that he remanded without a motion, and on the fact that he remanded without a hearing there is no debate that was error. That was part of his pique against civil rights workers that you heard here.

Senator BAYH. Could I interrupt just a moment to ask one question to put this in proper perspective? On the motion to remand, was that made by one of the parties in Peacock?

Mr. ŘAUH. In both of the lower court cases that were reviewed by the Supreme Court in Peacock, there were motions to remand, yes, sir, and hearings on the motions to remand.

Senator BAYH. By one of the parties
Mr. Rauh. Yes, sir.

Senator Cook. Mr. Chairman, I merely want to say that we had made an agreement before the Senator from Indiana .came in that we were not going to interrupt the witnesses. I agreed to that at that time. We took the position, and I think as a matter of fact both of the witnesses agreed, that we should get their statements in before any questions were asked. I merely want to know whether the procedure is going to be followed or whether when anybody wants

Senator Bays. Strike that question from the record.

Senator Cook. No; that is perfectly all right, but I want to make it clear that this is what we agreed to.

Senator Hart. The Senator from Kentucky is quite in order. I came in by plane and you started early. I did not know the understanding. We will respect it.

Senator COOK. I think that is the understanding.

Mr. Rauh. Senator Cook is correct. We both asked, because of the fact that time was limited, that we be allowed to complete our testimony. We would be happy to go on with questions, and I think Senátor Cook and I could have some fun before the afternoon was up. But we did want to complete our testimony and get it in, if there is to be an insistence on the time limitation. As far as Mr. Mitchell and I are concerned we are at your service for as long as necessary, but I see that I have only approximately an hour more. I am on the third case and I have got lots of work to do here.

Senator HART. All of us wanted an analysis of those cases.

Senator BAYH. I regret that I asked the question. I wasn't aware of the original agreement. I think the point is well taken. I would rather hear your testimony than ask the question. I just wanted to refine this. I would like to hear the discussion between you and the Serrator from Kentucky, because I think this would be enlightening to all of us to get a fuller explanation of the problems involved, but I apparently do not have the time to do that.

40-399-70-19

Mr. Rath. Maybe we could be invited back at a later time. We are available.

Senator Cook. I apologize for bringing up the matter, Mr. Chair

man.

Mr. RAUH. Going on now to the fourth case, Singleton v. Board of Commissioners of State Institutions, 356 F. 2d 771. You have heard of this case, it is the reform school case.

Judge Carswell said that children who were in the reform schools and brought a suit to stop the segregation of the reform schools had no standing to continue their suit when they got out.

I can only say that anybody who would have taken that position believed in segregated reform schools because it was obvious those children had standing to bring this case, and the court of appeals ruled three to nothing that they had such standing.

Senator FONG. What year was that?

Mr. Rauh. That is 1966, sir. In 1967 you get another double reversal. That is Steele v. Board of Public Instruction of Leon County, Fla., 371 F.2d 395.

This is the Tallahassee School Desegregation case. Here Judge Carswell approved a desegregation plan which opened only one grade each year to token desegregation through "freedom of choice.” This is 1963 and he is approving a desegregation plan which opened only one grade, and only one grade on a freedom of choice basis.

He issued this order in spite of the directive to his court in the fifth circuit's Pensacola decision that at least two grades be desegregated the first year, if desegregation did not begin until 1963.

That is how bad Judge Carswell was in 1963, but he got worse in 1965. At a hearing on April 19, 1965, at which Mr. Leroy Clark appeared before Judge Carswell on a motion to speed up the school plan, Clark said it was bad enough in 1963, but since then you had had the Supreme Court's decisions in Goss and in Griffin cases, where the Supreme Court had ordered faster action. Clark said in effect: We want a new hearing. Now I quote out of the transcript of the hearing in Steele in the district court on April 19, 1965:

Mr. CLARK. Your Honor, basically, our motion for further relief would be proposed or require a reorganization of the present system of assignment.

Judge CARSWELL. Let me ask you this you mean this would be an effort to reorganize the plan, or that is to change the structural nature of the plan that has been approved by this Court and the Fifth Circuit?

Of course the Tallahassee plan had not been to the Fifth Circuit yet, so I do not know what Judge Carswell meant by that. Maybe you would like to ask him. But going on:

Mr. CLARK. Oh, yes, I think so.

The COURT. Well, I don't think we need to go any further. I think I made that very clear in the other motion. There is no necessity for this whatsoever and it would just be an idle gesture regardless of the nature of the testimony. I say that a judge in 1965,

who on a motion to reform the Tallahassee school decree said "it would just be an idle gesture regardless of the nature of the testimony” is a close-minded segregationist judge. When this case got to the court of appeals he was reversed on both his 1963 and 1965 rulings.

Sixth is the case of the third of the three big school districts in his jurisdiction. You see, Judge Carswell's district essentially has three big places—Pensacola, Tallahassee, and Bay County. I have told you about those first two school districts, and now comes Bay County, which was the third of the big school cases before Judge Carswell

. This reversal was also unanimous on December 1, 1969, but not yet reported. The situation is as follows. The style of the case in the court of appeals is Youngblood and United States v. Board of Public Instruction of Bay County, Fla. No.572, in the court of appeals. Judge Carswell was reversed unanimously December 1, 1969.

Of course he was already on the court of appeals by that time, but the court reversed his district court action unanimously.

This suit was filed by Negro students and parents in November 1963. On July 20, 1964 Judge Carswell made his first ruling in the case. Now remember that this ruling comes in 1964, after Goss and Griffin, and this is in effect what he held:

Except for students graduating from grade school to junior high, or from junior high to high school, all children would be forced to remain in segregated schools for another year. Then token integration would begin on a grade a year basis. Even though students eligible to transfer the first year could enter white schools only if their parents came to the superintendent's office during working hours on one of the only four days allowed for the purpose. Even then the school board could use vague general criteria in the Florida pupil assignment law to reject applications.

This was so bad that the United States intervened in September 1966. A Jefferson County freedom of choice decree was entered in April 1967. In June 1968 the private plaintiffs filed a motion for sup: plemental relief in light of the Supreme Court decision in Green and the companion cases. The United States filed a similar motion on July 16, 1968.

These motions asserted that the freedom of choice plan failed to realistically promise to bring about a unitary school system to Bay County and asked the district court to direct the school board to devise an effective alternative to free choice. At that time it was anticipated that for the 1968-69 school year approximately 75 percent of the Negro elementary and junior high school students would attend schools traditionally maintained for

Negroes. No white students had even chosen to attend these schools. Four of the 20 elementary schools and one of the four junior highs were all black. The high schools had been desegregated in 1967.

A hearing was held on July 18, 1968, and on August 12, 1968. The court issued an opinion which approved continued use of free choice for the 1968-69 school year. Remember this is after Green made clear what the Supreme Court thought of free choice. Yet Judge Carswell stated he was

not convinced that a freedom of choice plan ... has no place in the Bay County school system at the present time or that it has operated ineffectively as a tool of desergregation in Bay County, Florida at the present time.

However, the court also stated that “the defendants, in formulating a plan for the operation of the Bay County School System for the 1969–1970 school year, have the burden of coming forward with a plan for desegregating the county schools that ... promises realistically to work now.

The court ordered the board to file on or before January 1968 "tentative plans for the operation of the Bay County School System

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