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ANALYSIS AND COMMENT CONCERNING JUDGE CARSWELL'S RECORD IN

CIVIL RIGHTS AND CRIMINAL LAW

I. CIVIL RIGHTS DECISIONS

Mr. Joseph L. Rauh, counsel for the Leadership Conference on Civil Rights, testified that the Court of Appeals for the Fifth Circuit had reversed eight of Judge Carswell's decisions in civil rights cases. This statement, while technically true, gives an entirely misleading impression of Judge Carswell's overall rights record. It ignores all of the other civil rights cases in which Judge Carswell participated-six cases which were not appealed; four cases which were affirmed; and five Court of Appeals decisions. Any acceptable standard of evaluating judicial decisions for this purpose should fulfill at least two requirements: (1) It should treat all a judge's decisions in the field of law

which were remanded for reconsideration in light of intervening appellate standards.

Since opposition to Judge Carswell's confirmation comes from those who urge that he is unsympathetic to civil rights claims, the following breakdown of his decisions in this field suggests itself:

(a) "Pro-Civil Rights" decisions and votes.

(b) “Neutral” civil rights decisions and votes- cases in which Judge Carswell as a district judge decided against the claims of civil rights litigants, but was affirmed unanimously by the Court of Appeals; cases in which the Court of Appeals panel on which Judge Carswell was sitting unanimously decided against the claims of civil rights litigants; and cases which were remanded for reconsideration in light of intervening appellate or Supreme Court decisions.

(c) "Anti-Civil Rights" decisions and votes. If Judge Carswell's civil rights cases are classified in this manner, eight of his decisions may be described as "pro-civil rights”, ten may be described as "neutral”, and five may be described as "anti-civil rights”. These figures refute the contention that Judge Carswell is prejudiced against civil rights litigants. A. Eight Pro-Civil Rights Decisions

Judge Carswell has decided the following eight decisions in favor of the civil rights litigants.

In Brooks v. City of Tallahassee, 202 F. Supp. 56 (1961), civil rights plaintiffs sought to enjoin the owner of a restaurant at the Tallahassee Airport from discriminating against Negroes, and to enjoin the city from maintaining signs designating separate waiting rooms, lunch rooms, and rest room facilities for Negroes at the airport. Judge Carswell held that the city and the restaurant had violated the constitutional rights of the Negroes. Because the city had continued to maintain the objectionable signs, Judge Carswell issued an injunction against any future violations by the city.

In Youngblood v. Board of Public Instruction of Bay County, Florida, 230 F. Supp. 74 (1964), the plaintiff Negroes sought to compel desegregation of the schools in Bay County, Florida. The plaintiffs' motion for summary judgment was opposed by the School Board on the ground that a recently decided case for the District Court of the Southern District of Georgia, Stell v. Savannah-Chatham County Board of Education, 220 F. Supp. 667, held that a pupil placement system like that then existing in Bay County was not violative of the Constitution. Judge Carswell refused to follow Stell.

The School Board also sought to justify its procedures by arguing that race was not the sole factor it considered in making school assignments. It argued that the use of a racial index as one criterion in making pupil assignments was justified by inherent racial differences in intelligence and aptitude. Judge Carswell flatly rejected this argument and stated :

“Without assessing or weighing this data, this contention simply ignores the plain requirement that individual pupils must be assigned to a school without regard to racial consideration. To be sure, there is no constitutional prohibition against assignment of individual students to particular schools on a basis of intelligence, rate of achievement, or aptitude upon a uniformly administered program so long as race itself is removed as a factor in making individual assignments. By the same token, any plan which does embody the universal testing basis for assignment may not be administered in a manner which would defeat the essential requirement that factors of race are not to be considered.” 230 F. Supp. at 76.

In Pinkney v. Meloy, 241 F. Supp. 943 (1965), Judge Carswell held that a hotel barbershop was covered by the Civil Rights Act of 1964, even though 95 percent of its clientele were local residents. This was the first time a court had been asked to consider whether the Civil Rights Act extended to a barbershop located in a hotel. There were no other judicial interpretations of the Act which required Judge Carswell to decide in favor of the Negro plaintiff.

In Lance v. Plummer, 5th Cir., 353 F. 2d 585 (1965), Judge Carswell sat by designation on the Court of Appe for the Fifth Circuit along with Chief Judge Tuttle and Judge Thornberry. The district court had granted an injunction to the civil rights plaintiffs against the defendant motel operators and others located in St. Augustine, Florida. The district court had ordered the motels in question to serve plaintiffs in compliance with the newly enacted federal Civil Rights Act, and had ordered the other defendants not to interfere with the plaintiffs in their efforts to obtain services at motels and other places in St. Augustine, Defendant Lance was a deputy sheriff whom the trial court found had followed some of the plaintiffs while they were trying to obtain accommodations, and defendant Lance was therefore found in contempt. The trial court ordered him to resign his position as deputy sheriff and refrain in the future from acting as a law enforcement or peace officer. The district court further ordered Lance to pay plaintif attorneys' fees.

The defendants appealed, claiming principally that the sanctions imposed by the court were punitive, and that attorneys' fees should not have been awarded. The Court of Appeals, in an opinion written by Chief Judge Tuttle and concurred in by Judges Thornberry and Carswell, affirmed (with a minor modification) the judgment of the district court.

In two unreported decisions, Judge Carswell enjoined restaurants from discriminating against Negroes. Lamb v. Betts Big T (1966); Russell v. Ski Line Truck Center (1969).

In Baxter v. Parker, 281 F. Supp. 115 (1968), a Negro plaintiff brought a civil rights action against a sheriff and a county, alleging that the sheriff assaulted him. Judge Carswell held that the complaint stated a cause of action against the sheriff. He denied the sheriff's motion to dismiss and directed the sheriff to file an answer. Judge Carswell granted the county's motion to dismiss on the ground that it was a governmental subdivision of a state and thus not a “person” within the meaning of the federal statute.

Soon after Judge Carswell took his seat on the Fifth Circuit Court of Appeals, he joined with Chief Judge Brown and Judge Jones in affirming a district court decision holding a city ordinance unconstitutional. Robinson v. Coopwood, 415 F. 2d 1377 (1969).

A municipal ordinance of Holly Springs, Mississippi, required that the city police be given notice of any march at least one hour before its commencement. Marchers were required to identify the points of origin and destination as well as the route to be taken and the approximate number of participants. The notice was also required to inform the police of any mass meetings, assemblages, or demonstrations which were planned.

In support of the constitutionality of the notice requirement, the city argued that it exercised no discretion as to whether such marches could take place. No permit was required. The advance notice was solely for the purpose of permitting the police to perform their legitimate and necessary functions.

The plaintiffs argued that the notice requirement had been used to break up an existing peaceful march. The district judge agreed, holding that the notice requirement was an unconstitutional prior restraint upon the exercise of First Amendment rights.

The Court held that if the activities likely to occur during an assembly are not such as to incite people to violence or to threaten the security of the community or to interfere with the orderly function of governmental authority, it is a constitutionally protected activity and may not be made unlawful by the mere failure of its participants to have given law enforcement officers advance notice of their plans. There is no reason to require previous notice of an intention to conduct a peaceful assembly when there is no public danger reasonably anticipated. B. Ten neutral civil rights decisions

Three categories of cases are included under this heading—those in which Judge Carswell's ruling as a District Judge was affirmed by the Court of Appeals; those in which Judge Carswell, while sitting on the Court of Appeals, joined in a unanimous decision with two concededly "liberal” circuit judges; and those

in which Judge Carswell's ruling as a District Judge was vacated by the Court of Appeals for reconsideration in light of Supreme Court or Fifth Circuit decisions announced subsequent to Judge Carswell's ruling in the case. The reasons for characterizing as “neutral” cases of these three descriptions are apparent. A ruling affirmed by the Court of Appeals indicates that Judge Carswell correctly applied existing law. A decision in which Judge Carswell joined “liberal” judges can hardly be described as “anti-civil rights”. Finally, it would be unjust to subject a judge to criticism for failing to anticipate landmark rulings of higher courts.

Four of Judge Carswell's civil rights opinions were affirmed on appeal. No reference was made to these cases by witnesses who testified against Judge Carswell. The four affirmances are as follows:

Knowles v. Board of Public Instruction of Leon County, affirmed, 405 F. 2d 1206 (1969).

Presley v. City of Monticello, affirmed, 395 F. 2d 675 (1968).
Ball v. Yarborough, affirmed, 281 F. 2d 789 (1960).

Steele v. Taft, affirmed in effect by Palmer v. Thompson, No. 23841 (October 1969).

While the Fifth Circuit dismissed Steele itself as moot on October 9, 1969, in a companion case decided the same day, Palmer, a majority of the Fifth Circuit sitting en banc clearly affirmed Judge Carswell's holding. Judge Carswell held that if a city chose to operate swimming pools it must operate them on an integrated basis. However, he held that the federal court did not have the power to force a city to provide swimming pools in the first place. Such a ruling was clearly required by four Court of Appeals decisions, including two decisions in the Fifth Circuit. Hampton v. City of Jacksonville, 304 F. 2d 319 (1962); City of Montgomery v. Gilmore, 277 F. 2d 364 (1960); Clark v. Flory, 237 F. 2d 597 (1956); Tonkins v. City of Greensboro, 276 F. 2d 890 (1960). While these decisions did not allow Judge Carswell to order the City of Tallahassee to provide swimming pools, Judge Carswell nevertheless expressed his disapproval of the policy being followed by the city. In his opinion, he stated :

“The failure to render such discretionary service by the city may well be subject to valid criticism as a matter of public policy. On the fact of it, such policy may seem tragically absurd, but such decision is clearly under the law a function and a responsibility of the elected public officials and

the officers and employees working under them." In the following two cases, Judge Carswell agreed with the decisions of Circuit Judges Tuttle, Wisdom and Rives and District Judge Johnson. Mr. Rauh, in his testimony in opposition to Judge Haynsworth, stated that “there are wonderful Southern judges—Tuttle, Brown, Wisdom, Johnson—who would have been heroic additions to the Court." (Hearings, p. 469).

In Abernathy v. Patterson, 295 F. 2d 452 (1961), cert. denied, 368 U.S. 986, Judge Carswell, sitting on the Court of Appeals by designation, joined Judges Rives and Wisdom in affirming a decision of District Judge Frank Johnson. Judge Johnson had dismissed a complaint filed by four Negroes against the Governor of Alabama in an attempt to prevent the Governor from bringing a libel action against them. Judge Johnson held they had an adequate remedy at law.

In Gaines v. Dougherty County Board of Education, 329 F. 2d 823 (1964), Judge Carswell sat by designation on the Court of Appeals, and joined in an opinion written by Judge Tuttle and concurred in by Judge Wisdom. The court affirmed with modification the district court decision approving a school desegregation plan. Since modifications ordered by the court substantially liberalized the school plan, this case could fairly be characterized as "pro-civil rights”. However, since the court withheld judgement on the grade-a-year plan pending Supreme Court resolution of that question in another case, it has been classified as a "neutral" decision.

In the following four cases, Judge Carswell's decision was remanded for reconsideration in light of a Supreme Court or Fifth Circuit decision handed down after Judge Carswell's opinion.

In Steele v. Board of Public Instruction of Leon County, 371 F. 2d 395 (1967), the Fifth Circuit held that the desegregation plan adopted by Judge Carswell in 1963 failed in a number of respects to meet the standards laid down by the Fifth Circuit in Deccember 1966 in the Jefferson case. The Jefferson opinion of the Fifth Circuit was a landmark civil rights case. The majority opinion was sixty pages long and contained 114 footnotes. Following the opinion was a proposed decree which covered seven pages and went into great detail including the

form of an explanatory letter to be sent to the parents explaining the desegregation plan. This type of intervening decision by an appellate court is obviously not the type of decision that a fair-minded district judge could have anticipated three years earlier.

In Wechsler v. County of Gadsden, 351 F. 2d 311 (1965), Judge Carswell had remanded to the state court a criminal prosecution originally brought in the state court but removed to the federal court by the defendant. The Fifth Circuit vacated Judge Carswell's order and remanded for reconsideration in light of two cases handed down by the Fifth Circuit after Judge Carswell's order. These two other cases were later appealed to the Supreme Court. Georgia v. Rachel, 384 U.S. 780 (1966); Greenwood v. Peacock, 384 U.S. 808 (1966). The Supreme Court affirmed the ruling of the Fifth Circuit in Rachel, but reversed the ruling in Peacock.

The issue before the court was the scope of the provision of the judicial code allowing removal from state to federal courts in certain cases involving civil rights. The Supreme Court held that removal could be had in a limited class of state court cases in which the very bringing of the prosecution would constitute a denial of the state defendants' civil rights. On the other hand, the Supreme Court held that removal was not authorized where the state criminal defendants claimed that prosecution under a general criminal statute was motivated either by desire to frustrate their civil rights activities or to deny their First Amendment freedoms.

It is impossible to tell from the opinion of the Court of Appeals in the Wechsler case what the nature of the removal petition presented to Judge Carswell had been. However, on page 322 of the transcript of the hearings of the nomination of Judge Carswell, Professor Lowenthal described the removal plaintiffs as having been “arrested for criminal trespass”. He further stated that the reason for removal was “that the attorney thought that the local officials who were hostile to the voter registration drive would be unlikely to accord an adequate or fair trial."

Based on these statements of the counsel for the removal plaintiffs, it is clear that the doctrine enunciated in the Peacock case is applicable to the facts presented by Wechsler. Thus, by reversing the Fifth Circuit's decision in Peacock, the Supreme Court made clear that Judge Carswell was correct in holding that the Wechsler case was not properly removable to a federal court.

Mr. Rauh testified that two of Judge Carswell's school desegregation cases were recently reversed unanimously by the Fifth Circuit. Youngblood v. Board of Public Instruction of Bay County, No. 27863; Wright v. Board of Public Instruction of Alachua County, No. 27983 (Dec. 1, 1969). What Mr. Rauh failed to tell the Committee was that the entire Fifth Circuit, including Judge Carswell, sat en banc to consider thirteen different school desegregation cases. All of these cases were reversed and remanded for reconsideration in light of the intervening decision of the Supreme Court in Alexander v. Holmes County Board of Education, 24 L. Ed. 2d 19 (1969). While Judge Carswell of course did not participate in the two cases which he had decided as a district judge, Youngblood and Wright, he joined with the rest of the Fifth Circuit in reversing the other eleven decisions. Thus, while it is technically correct to say that these two decisions of Judge Carswell were reversed on appeal, that fact standing alone is very misleading since it indicates that Judge Carswell was out of step with the Fifth Circuit. Actually, Judge Carswell was in complete agreement with all fourteen judges of the Fifth Circuit in holding that the intervening decision of the Supreme Court required reversal in these school desegregation cases.

C. Five Anti-Civil Rights Decisions

Judge Carswell's decisions in the following five cases may fairly be described as “anti-civil rights” under the standards earlier described, but under those same standards they must be balanced against the "pro" civil rights cases and the “neutral” civil rights cases in order to evaluate fairly his entire record. In four of the cases, his decision against civil rights plaintiffs was reversed on appeal to the Fifth Circuit; in the fifth, he dissented in part while sitting by designation on the Court of Appeals from a ruling of a majority of the panel in favor of civil rights claims.

Augustus v. Board of Public Instruction of Escambia County, 306 F. 2d 862 (1962);

Due v. Tallahassee Theaters, 333 F. 2d 630 (1964);
Dawkins v. Green, 412 F. 2d 644 (1969);

Singleton v. Board of Commissioners of State Institutions, 356 F. 2d 771 (1966)

Gaines v. Dougherty County Board of Education, 334 F. 2d 983 (1964), Judge Carswell dissenting.

There must be some qualification as to the inclusion of Augustus, however, as an “anti-civil rights" case. That case represented the first time in which a Court of Appeals had occasion to pass on the question of whether the Brown holding required desegregation of faculties as well as of students in public schools, a question ich was not authoritatively resolved until the Supreme Court's decision in the Bradley case, 382 U.S. 103, decided in 1965. Two other district judges in other circuits dealing with the same issue at the same or a later time Judge Wilson in Tennessee and Judge Butzner in Virginia, neither known as hostile to civil rights claims-each decided the issue in much the same manner as Judge Carswell did and each was in turn reversed by his respective Court of Appeals. Mapp v. Board of Education of City of Chattanooga, 6th Cir., 319 F. 2d 571 (1963), and Bradley v. School Board of Richmond, 4th Cir. 345 F. 2d 310 (1965). It should also be borne in mind that in the Augustus litigation, Judge Carswell issued the first desegregation decree in Florida, which was compiled with by the affected school board within the ninety day time limit imposed by his decree. While the plaintiffs were denied the additional relief of teacher integration and successfully sought a reversal of that portion of Judge Carswell's decree on appeal, he himself had in the decree granted substantial parts of the relief they sought.

On the basis of the foregoing, it may fairly be said that Judge Carswell's record in the area of civil rights is not "liberal” in the sense that one might classify a very few other southern federal judges, but just as surely it cannot be fairly said that his record is "segregationist" or "anti-civil rights” in the sense that one might classify still other southern judges. It is, on the whole, a record which is that of a "middle of the roader”.

II. HABEAS CORPUS DECISIONS

Mr. Rauh testified before the Committee that Judge Carswell had been reversed seven times in habeas corpus cases. This testimony conveyed an incomplete and, distorted picture of Judge Carswell's record in this area. Nine such cases in which Judge Carswell was affirmed by the Fifth Circuit were omitted. These cases are Smith v. United States, 283 F. 2d 245 (1960); Adams v. United States, 302 F. 2d 307 (1962); Batson v. United States, 304 F. 2d 459 (1962); Gant v. United States, 308 F. 2d 728 (1962); Young v. United States, 337 F.2d 753 (1964); Glinn v. United States, 338 F. 2d 62 (1964) ; Hamilton v. United States, 341 F. 2d 914 (1965); Hamilton v. Florida, 390 F. 2d 872 (1968); Rogers v. Wainwright, 394 F. 2d 492 (1968). In each of the cited cases, the Fifth Circuit agreed with Judge Carswell's handling of the request for relief.

Three other habeas corpus decisions were omitted from the testimony. The first is Beufve v. United States, 334 F. 2d 958 (1965). The issue in that case was whether the petitioner's guilty plea had been voluntarily entered with full understanding of its consequences. The same issue had arisen in an earlier case before Judge Carswell. McCullough v. United States, 231 F. Supp. 740 (1964). There, the defendant contended that he had been unaware of the sentencing provisions of the Federal Youth Corrections Act under which he had been sentenced. Judge Carswell ordered that a hearing be held on the allegation. He stated that the defendant would be entitled to relief if in fact the hearing disclosed that he had been unaware of those provisions. In announcing his ruling, Judge Carswell explicitly followed the decision of the Fourth Circuit Court of Appeals in Pilkington v. United States, 315 F. 2d 204 (1963), an opinion by Judge Simon Sobeloff.

One week after Judge Carswell's McCullough decision, the Fifth Circuit refused to follow Pilkington in Marvel v. United States, 335 F. 2d 101 (1964). The petitioner in Marvel sought certiorari in the Supreme Court. While Marvel was pending before the Supreme Court, Beufve came before Judge Carswell. Following the controlling Fifth Circuit precedent announced in Marvel, he denied relief. Shortly thereafter, the Supreme Court vacated the ruling in Marvel and remanded for a determination on whether the petitioner had been misled by the trial judge as. to maximum sentence. Marvel v. United States, 380 U.S. 262 (1955).

Judge Carswell's denial of relief in Beufve reached the Fifth Circuit shortly after the Supreme Court's decision in Marvel. The Fifth Circuit vacated Judge Carswell's order on the authority of the Supreme Court's ruling. Thus, Judge

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