moval statute. However, if in addition to the grounds for removal there is also present one of the explicit conditions warranting prompt equitable relief discussed above, the State proceeding should be enjoined finally.11

41

IV. EFFECT OF PROPOSED REVISIONS

ON AN ACTUAL CASE

On October 20, 1958, the Reverend Fred Shuttlesworth, a Negro civil rights leader, walked to a Birmingham, Alabama, bus stop with a group of Negroes. When the bus arrived, all but Shuttlesworth boarded it and took seats in the front section. There was a city ordinance, only six days old, which authorized the bus system to make its own seating regulations and provided that failure to comply with the regulations was a breach of the peace. The bus company immediately adopted regulations requiring segregated seating, and the Negroes acted to test this new maneuver which had the purpose of avoiding desegregation. The driver of the bus ordered the Negroes to move to the rear of the bus, which they refused to do. All of them, including Shuttlesworth, who was still on the sidewalk, were arrested on charges of breach of the peace, conspiracy to break the peace and disorderly conduct. On October 23, Shuttlesworth and the other Negroes were convicted of disorderly conduct in the Recorder's Court and varying sentences were given, including one of 82 days in jail at hard labor for Shuttlesworth.

That this criminal prosecution of Shuttlesworth was obviously to thwart and frustrate the exercise by him and others of civil rights was shown more than five years later in a decision of the Federal District Court. On December 12, 1963, that court released Shuttlesworth in a habeas corpus proceeding, stating:

"The court finds no evidence whatever in the record to support the conviction of petitioners, and, under the compulsion of the authority of the decision of the Supreme Court of the United States in Thompson v. The City of Louisville, supra, has no alternative except to conclude that the convictions are void and without force and effect,

since as the court there said 'just as conviction upon a charge not made would be sheer denial of due process' so is it a violation of due process to convict and punish a man without evidence of his guilt." Shuttlesworth v. Moore, 9 Race Rel. L. Rep. 107 (N.D. Ala. 1963).

Under the ancient removal precedents discussed earlier this criminal prosecution could probably not have been removed initially to the Federal court since the ordinance under which Shuttlesworth was convicted was not discriminatory on its face. However, under the Civil Rights Procedure Act recommended by the Committee herewith, removal would have been authorized since the prosecution was on account of acts coming within the definition of the proposed subdivisions (3) and (4) of Section 1443. Promptly after removal, the defendant might have had the case dismissed because his acts were pursuant to vested civil rights. Instead of waiting five years to effect protection of his civil rights, Shuttlesworth might have secured such protection within a matter of months. It is this speed which the proposed removal revision would bring to Federal process for vindicating the substantive rights granted by the Constitution and Federal statutes.

On July 20, 1960, after Shuttlesworth's conviction had been affirmed by the County Court of Alabama and he had appealed to the intermediate State appellate court, the United States Court of Appeals for the Fifth Circuit held that the ordinance under which he was convicted was unconstitutional.42 Under the proposed Civil Rights Procedure Act, Shuttlesworth could then have secured an order from the Federal court enjoining any further State criminal proceedings. However, under the present state of the law, because of the anti-injunction statute and decisions thereunder, Shuttlesworth could not stay further State court proceedings and continued to be involved in protracted proceedings in the State courts until December 12, 1963, when the District Court finally granted habeas corpus.

A summary of the Shuttlesworth litigation, since his arrest for disorderly conduct on October 20, 1958, shows the following:

in

He made numerous court appearances, divided as follows: 5 the State court to review his conviction directly; 3 in the Federal court to obtain an injunction; 3 in the State court seeking collateral review and bail; 1 in the Federal court to obtain bail; and 4 in the Federal court to secure release on habeas corpus. In addition to the five years involved with this court litigation, he served 34 days in jail, had to pay money for bail and had to be afforded legal services of a value of many thousands of dollars. This gross miscarriage of justice would have been prevented if the Committee's recommendations for statutory amendments had then been in force.

V. CONCLUSION

For the foregoing reasons, the Special Committee on Civil Rights Under Law is of the opinion that the Congress should consider and enact improvements in the Federal remedial statutes applicable to civil rights cases along the lines discussed herein. The Committee's draft of a Federal Civil Rights Procedure Act, annexed in bill form as Appendix A, is believed to represent a carefully limited extension of Federal jurisdiction to protect the vital Federal interest at stake in State prosecutions for civil rights activity, without unduly hampering the States in the discharge of their legitimate responsibility for enforcement of the criminal law.

FOOTNOTES

1 See "Law Enforcement-A Report on Equal Protection in the South," United States Commission on Civil Rights, pp. 62-83 (1965).

2 Mr. Brownell's successor as President of the Association, Hon. Samuel I. Rosenman, was an original member of the Committee, but resigned upon becoming President. He has continued in that position to give interested and strong support to the work of the Committee, as has Paul B. DeWitt, Executive Secretary of the Association.

3 The Staff Director was Berl I. Bernhard, Esq., formerly Staff Director of the United States Commission on Civil Rights, who during the period of this study held similar positions with the Lawyers Committee for Civil Rights Under Law and the White House Conference "To Fulfill These Rights." Ronald B. Natalie, Esq., a former member of the staff of the Commission, served as Associate Staff

Director. The present Recommendations and Summary of Report was prepared by the Committee, based upon the manuscript of the Staff Study.

The work of the Committee has been financed to date principally by grants from the Ford, Field and Taconic Foundations. A supplementary grant from the New World Foundation covered the expenses of the conference with a group of Federal and State judges and prosecutors referred to in note 4, infra.

4 In order to test out the tentatively formulated recommendations against possible attack on the ground they could be abused by defendants in State criminal cases having nothing to do with civil rights and in order to seek out informed views on the central problem of Federal remedial protection for civil rights defendants, the Committee invited a distinguished group of judges and prosecutors, Federal and State, from Southern as well as Northern jurisdictions, to express their

views.

Following an afternoon and evening conference with this group of experts in the practical administration of such remedies, the Committee sharpened its recommendations. The responsibility for the final recommendations lies entirely with the Committee, of course, but it wishes here to record its appreciation for the candid, thoughtful and constructive views expressed at the conference by the following persons who responded to its invitation:

Hon. Harold Tyler, Jr., United States District Judge for the Southern District of New York;

Hon. Francis L. Valente, Justice of the Supreme Court of the State of New York, Appellate Division, First Department (now deceased);

Hon. Barefoot Sanders, Assistant Deputy Attorney General of the United States; former United States Attorney for the Northern District of Texas; Hon. Terrell Glenn, United States Attorney for the Eastern District of South Carolina; and

Hon. Richard Uviller, Chief of the Appeals Bureau, New York County District Attorney's Office.

5 The judicial expansion of the scope of habeas corpus is best illustrated in Fay v. Noia, 372 U.S. 391 (1963).

6 The notable exception has been In re Shuttlesworth, 369 U.S. 35 (1962). The history of this case prior and subsequent to the cited decision of the Supreme Court is discussed at length in the Staff Study, and a summary is set forth at PP. 22-24 herein.

7 See, e.g., Hillegas v. Sams, 349 F. 2d 859 (5th Cir. 1965).

8 Act of February 5, 1867, Ch. 28, §1, 14 Stat. 385–86.

9 See, e.g., Cunningham v. Neagle, 135 U.S. 1 (1890); Ohio v. Thomas, 173 U.S. 276 (1899); In re Loney, 134 U.S. 372 (1890); In re Sam Kee, 31 Fed. 680 (C.C.N.D. Cal. 1887); and In re Lee Sing, 43 Fed. 359 (C.C.N.D. Cal. 1890).

10 Particularly with respect to rights claimed under the Civil Rights Act of 1964, the cases arising under the Commerce Clause, analyzed in the Staff Study, are precedent that in prosecutions interfering with an important Federal interest, a petition may be granted before trial. See generally, Amsterdam, Criminal Prosecutions Affecting Federally Guaranteed Civil Rights: Federal Removal and Habeas Corpus Jurisdiction to Abort State Court Trial, 113 U. Pa. L. Rev. 793, 882-908 (1965).

11 Section 2254 is set forth in Appendix B hereto.

12 If application for bail pending exhaustion in the State courts is denied, the Federal habeas court may deem exhaustion completed. In re Shuttlesworth, 369 U.S. 35 (1962). See also Johnston v. Marsh, 227 F. 2d 528 (3d Cir. 1955); United States v. Hamilton, 3 U.S. (3 Dall.) 17 (1795). Even appeal is not required where

prisoners are held for petty offenses and numerous prosecutions are likely to be pressed in the State courts-typical civil rights situations. Ex parte Kieffer, 40 Fed. 399 (C.C.D. Kan. 1889); Collins v. Frisbie, 189 F. 2d 464 (6th Cir. 1951), aff'd, 342 U.S. 519 (1952).

13 Act of September 24, 1789, Ch. 20, §12, 1 Stat. 79–80.

14 Act of April 9, 1866, Ch. 31, §3, 14 Stat. 27.

15 See, e.g., Virginia v. Rives, 100 U.S. 313 (1880); Neal v. Delaware, 103 U.S. 370 (1881); Kentucky v. Powers, 201 U.S. 1 (1906).

16 The Committee's research leads it to the conclusion that these opinions limiting the thrust of the original civil rights removal statute, which were not in fact based upon the legislative history of the Civil Rights Act of 1866, may be inconsistent with the available historical record. These cases were decided long before legislative history had become accepted as an important tool in the interpretation of statutes. See Cox, Judge Learned Hand and the Interpretation of Statutes, 60 Harv. L. Rev. 370 (1947).

17 Subdivision (2) of Section 1443 has rarely been construed by the courts. Accordingly, while the door may still be open to a more liberalized construction of this part of the statute, the Committee thinks it possible that the thrust of the subdivision will be restricted to situations where Federal officers, or perhaps private citizens, were actually discharging a Federal duty, as distinguished from exercising a Federal right, at the time of their arrests. See discussion in New York v. Galamison, 342 F. 2d 255 (2d Cir. 1965), cert. denied, 380 U.S. 977.

18 Compare Plessy v. Ferguson, 163 U.S. 537 (1896), with Brown v. Board of Education, 347 U.S. 483 (1954).

19 See, e.g., Civil Rights Act of 1964, 78 Stat. 241, 42 U.S.C. §§2000a-2000h-b; Voting Rights Act of 1965, 79 Stat. 437.

20 Bailey v. Patterson, 369 U.S. 31 (1962).

21 The Committee's recommendations include technical changes in the 1964 provision, to clarify the basis for appeal of remand orders (see New York v. Galamison, supra n. 17), and to make denials of remand also appealable in civil rights cases, in the interests of fairness to the State and greater consistency of standards through appellate review. See proposed amendments to 28 U.S.C. §1447(d), in Appendix A and B.

22 See, e.g., Rachel v. Georgia, 342 F. 2d 336 (5th Cir. 1965), cert. granted, 15 L.Ed.2d 58 (indicating that removal may be effected when a State statute, valid on its face, is unequally applied in violation of the Civil Rights Act of 1964); Peacock v. City of Greenwood, 347 F. 2d 679 (5th Cir. 1965) cert. granted, 15 L.Ed. 2d 464(1966) (indicating that removal may be effected where it is proved that the accused was deprived of his equal civil rights by virtue of an arrest made for reasons of racial discrimination); Cox v. Louisiana, 348 F. 2d 750 (5th Cir. 1965) (indicating that removal was justified where the State court prosecution was deliberately designed to frustrate the protective mandate of the Supreme Court); McMeans v. Mayor's Court, 247 F.Supp. 606 (M.D.Ala. 1965) (indicating that removal was justified where the police made harrassment arrests of civil rights workers engaged in peaceful and lawful picketing; a local parade ordinance and State statute relating to reckless driving were held unconstitutional as applied to these defendants). For argumentation supporting a more liberal interpretation of the present civil rights removal statute, see Amsterdam, Criminal Prosecution Affecting Federally Guaranteed Civil Rights: Federal Removal and Habeas Corpus Jurisdiction to Abort State Court Trials, 113 U. of Pa. L. Rev. 793, 851–82 (1965).

However in Commonwealth of Virginia v. Wallace, No. 9462, and Baines v. City