Otis Chestnut, Susan Karp, Stephen Martinot, Ellen Shallit, Michael Brown, Jeremiah Gelles, Levi Laub, and Robert Apter, Appellants, v. the People of the State of New York, Appellee, 370 F.2d 1 (2d Cir. 1966)

The eight appellants claim the right to have the criminal cases pending against them in the state court removed to the federal court on the ground that they will be denied or cannot enforce in the state court their rights arising under a law providing for such equal civil rights.

Appellants have been charged in informations filed in the Criminal Court of the City of New York with criminal contempt under § 600(6) of the New York Penal Law, McKinney's Consol.Laws c. 40, for refusing to answer questions propounded by a Grand Jury for New York County investigating the Harlem riots of 1964. Their cases were removed to the federal court pursuant to 28 U.S.C. § 1443(1) which provides for removal of an action:

Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof.

Appellants specifically challenge § 596 of the New York Judiciary Law, McKinney's Consol.Laws, c. 30 which requires a grand juror to be "intelligent; of sound mind and good character; well informed," and "the owner * * * of real or personal property of the value of two hundred and fifty dollars"; and § 609 (1), which requires the county clerk to make a "special investigation" of persons qualified to serve as grand jurors. Appellants allege that the method of selection results "in the exclusion of the great majority of qualified Negro and Puerto Rican citizens and members of low income groups";¹  therefore, they argue that the Second August 1964 Grand Jury before which they were called to testify was an illegally constituted tribunal and without authority since it was selected in violation of the equal protection clause of the fourteenth amendment, 18 U.S.C. § 243,²  and 42 U.S.C. § 1981.³ 

After the cases had been removed to the district court, appellee moved pursuant to 28 U.S.C. § 1447(c)⁴  to remand the action to the Criminal Court for the City of New York, County of New York. Judge Croake, in a memorandum decision, concluded that the cases had been improvidently removed, and ordered them remanded. This Court denied appellants' motion for a stay pending appeal,⁵  but Mr. Justice Harlan as the Circuit Justice granted a stay so that the appeal might be considered by us in light of the Rachel and Peacock cases, infra, then pending in the Supreme Court but not yet decided, 86 S. Ct. 940, 15 L. Ed. 2d 842 (1966).

We turn our attention initially to the conditions which must be met in order to remove a case under § 1443(1). It is essential for removal that the prosecution be " [a]gainst any person who is denied or cannot enforce [one of his civil rights] in the courts of such State", and that the right must be one arising "under any law providing for the equal civil rights of citizens of the United States".

In light of the developments in this area of the law, it seems clear to us that the appellants' contention that the property qualification of § 596 of the Judiciary Law and the alleged vagueness of the section violate the equal protection clause of the constitution, does not meet the second requirement for removal. " [T]he phrase `any law providing for * * * equal civil rights' must be construed to mean any law providing for specific civil rights stated in terms of racial equality. Thus * * broad contentions under the * * * Due Process Clause of the Fourteenth Amendment cannot support a valid claim for removal under § 1443, because the guarantees of those clauses are phrased in terms of general application available to all persons or citizens, rather than in the specific language of racial equality that § 1443 demands." Georgia v. Rachel, 384 U.S. 780, 792, 86 S. Ct. 1783, 1790, 16 L. Ed. 2d 925 (1966). Although the Court does not seem to have decided whether a denial of rights protected by the equal protection clause of the constitution meets the second requirement for removal under § 1443(1), its language in Rachel would seem to support the view expressed in Peacock v. City of Greenwood, Miss., 347 F.2d 679 (5th Cir. 1965), rev'd on other grounds, 384 U.S. 808, 86 S. Ct. 1800, 16 L. Ed. 2d 944 (1966), that "not every violation of the equal protection clause will justify removal, but only those violations involving discrimination based on race." 347 F.2d at 682.⁶  This is in harmony with the purpose of the removal section, as revealed by its history — to protect those rights defined in terms of racial equality. Georgia v. Rachel, supra, 384 U.S. at 788-792, 86 S. Ct. 1783. Since § 596 does not on its face discriminate in terms of race, appellants' claim of violation of the equal protection clause does not qualify their case for removal. But see Peacock v. City of Greenwood, supra at 684.

Appellants contend, however, that the New York law violates 42 U.S.C. § 1981 and 18 U.S.C. § 243. Both sections, it appears, provide for "specific civil rights stated in terms of racial equality,"⁷  and thus meet the second requirement of § 1443(1).⁸  It is necessary, therefore, for us to determine whether appellants' claims comply with the language of the section which makes it a condition for removal that the petitioners be "denied or cannot enforce" their rights in the state courts.

The allegations in appellants' petition for removal resemble closely those of the petitioners in Gibson v. State of Mississippi, 162 U.S. 565, 16 S. Ct. 904, 40 L. Ed. 1075 (1896). There it was claimed that 7000 Negro citizens in Washington County, Mississippi, were qualified for jury service, while only 1500 qualified whites resided there; yet, no Negroes had served on grand juries for several years due to deliberate racial discrimination by the officials in charge of selecting jurors. The Supreme Court, in disposing of this charge, stated:

[T]hese facts, even if they have been proved and accepted, do not show that the rights of the accused were denied by the constitution and laws of the state, and therefore did not authorize the removal of the prosecution from the state court. * * * such evidence would be for consideration of the trial court upon a motion by the accused to quash the indictment, such motion being based on the ground that the indictment against him had been returned by a grand jury from which were purposely excluded, because of their color, all citizens of the race to which he belonged. * * * [A] removal * * * could not be ordered upon the ground, simply that citizens of African descent had been improperly excluded, because of their race, and without sanction of the constitution and laws of the state, from service on previous grand juries, or from service on the particular grand jury that returned the indictment against the accused. Id. at 584, 16 S. Ct. at 908. (Emphasis added.)

But, the Court's decision in Gibson was merely an application of the older Strauder-Rives doctrine,⁹  which held that in order to remove (under an earlier version of § 1443(1)), the petitioner must prove that he "is denied or cannot enforce" his rights in the state courts because of a "formal expression of state law." Georgia v. Rachel, supra, 384 U.S. at 803, 86 S. Ct. 1783.¹⁰  It was not sufficient merely to allege that a statute, fair on its face, was being administered in a discriminatory manner. The reason for this was two-fold:

"It ensured that removal would be available only in cases where the predicted denial appeared with relative clarity prior to trial. It also ensured that the task of prediction would not involve a detailed analysis by a federal judge of the likely disposition of particular federal claims by particular state courts. That task not only would have been difficult, but it also would have involved federal judges in the unseemly process of pre-judging their brethren of the state courts." Id. at 803-804, 86 S. Ct. at 1796.

It is clear to us, therefore, that under the Strauder-Rives doctrine, and its application in Gibson v. State of Mississippi, supra, appellants are not entitled to remove their cases to the federal courts because the alleged denial of their civil rights is not "manifest in the formal expression of state law."

It is contended, however, that the Strauder-Rives doctrine, as expanded by the Supreme Court in Georgia v. Rachel, supra, permits removal in the present case. We believe the appellants read the Rachel decision much too broadly. The defendants in Rachel were to be tried in the state court for violating Georgia's trespass law in seeking to obtain service at a privately owned restaurant open to the public. The Supreme Court had already ruled in Hamm v. City of Rock Hill, 379 U.S. 306, 311, 85 S. Ct. 384, 13 L. Ed. 2d 300 (1964), that the Civil Rights Act of 1964 protected individuals from prosecutions in such cases. The Court, therefore, concluded in Rachel that removal was proper because " [i]n the narrow circumstances of this case, any proceedings in the courts of the State will constitute a denial of the rights conferred by the Civil Rights Act of 1964, as construed in Hamm v. City of Rock Hill," 384 U.S. at 804, 86 S. Ct. at 1796. And, it observed, "It is no answer in these circumstances that the defendants might eventually prevail in the state court." Id. at 805, 86 S. Ct. at 1797 (footnote omitted).

City of Greenwood v. Peacock, 384 U.S. 808, 86 S. Ct. 1800, 16 L. Ed. 2d 944 (1966), decided the same day, focused again on the standards for removal of a state criminal prosecution to the federal court. There, the defendants were being prosecuted in the Mississippi courts for violating local city ordinances by obstructing the streets while participating in a campaign aimed at increasing Negro voter registration. They alleged that they had been denied their equal civil rights because their arrests and prosecutions were solely for the purpose of harassing and punishing them for protesting racial conditions in Mississippi. They also claimed that they had been denied and could not enforce their rights in the state courts because those courts and the state's law enforcement officers were prejudiced against them and were committed to a policy of racial segregation.

The Supreme Court, however, decided that the order of removal to the federal courts had been improper and distinguished Rachel in these terms:

[N]o federal law confers immunity from state prosecution * * *. It is not enough to support removal under § 1443(1) to allege or show that the defendant's federal equal civil rights have been illegally and corruptly denied by state administrative officials in advance of trial, that the charges against the defendant are false, or that the defendant is unable to obtain fair trial in a particular state court. * * * The civil rights removal statute does not require and does not permit the judges of the federal courts to put their brethren of the state judiciary on trial. Under § 1443(1), the vindication of the defendant's federal rights is left to the state courts except in the rare situation where it can be clearly predicted by reason of the operation of a pervasive and explicit state or federal law that those rights will inevitably be denied by the very act of bringing the defendant to trial in the state court. 384 U.S. at 827-828, 86 S. Ct. at 1812 (footnotes omitted).

The precept given to us by the Supreme Court as a result of Peacock and Rachel is that the right to remove under § 1443(1) is not a broad or a recently extended one, as appellants contend; but, indeed, is a right limited in scope. And, a reading of the cases does not disclose that the Court was overruling the Strauder-Rives doctrine or Gibson v. State of Mississippi, supra. Indeed, the Court in Peacock stated:

[W]e decline to repudiate those decisions, and we decline to do so not out of a blind adherence to the principle of stare decisis, but because after independent consideration we have determined, for the reasons expressed in this opinion and in Rachel, that those decisions were correct in their basic conclusion that the provisions of § 1443(1) do not operate to work a wholesale dislocation of the historic relationship between the state and the federal courts in the administration of the criminal law. 384 U.S. at 831, 86 S. Ct. at 1814.¹¹ 

This leads us to the conclusion that we do not have before us a case where the denial of civil rights is "manifest in the formal expression of state law." And, clearly, we are not dealing with any statute which forbids a state prosecution in the circumstances here presented. Nor, do appellants' cases fall within the narrow exception to the Strauder-Rives doctrine which the Supreme Court carved out in Rachel since the very act of bringing these appellants to trial in the state courts will not inevitably deny them their civil rights.

We believe that the alleged illegality of the New York Grand Jury can be amply litigated in the state courts. It would be unseemly, therefore, for us to prejudge our brethren of the state courts and conclude that appellants will be foreclosed from enforcing their rights in a state forum. The healthy functioning of our federal system is fostered when the administration of the state's criminal laws and the determination of their validity is left in the first instance to the courts of the state.¹² 

It should be noted, however, that our conclusion that appellants have not met the requirements of § 1443(1) for removal to a federal tribunal at this juncture of the state's prosecution, is in no manner a determination by this Court that §§ 596 and 609 of the New York Judiciary Law are constitutional. We are confident that in light of recent decisions by the Supreme Court and federal appellate courts in other Circuits, that New York will give careful consideration to the very serious constitutional issues that appellants raise concerning the State's Grand Jury selection procedures.¹³  Only after appellants have litigated their contentions in the state courts may they be heard in the federal system.¹⁴ 

Affirmed.