Opinion
Crim. A. No. 30594.
May 26, 1967.
Edgar Corey, New Orleans, La., Guy Johnson, Racivitch, Johnson, Wegmann Mouledoux, New Orleans, La., for petitioner.
James C. Garrison, Dist. Atty., James L. Alcock, Julian R. Murry, Jr., Asst. Dist. Attys., New Orleans, La., for State of Louisiana.
The two petitioners were indicted on March 3, 1966, by the Grand Jury for the Parish of Orleans for the crime of theft. The prosecution was removed by these petitioners from the Criminal District Court, Parish of Orleans, State of Louisiana, to this Court under the provisions of 28 U.S.C.A. § 1443(1) and the first clause of § 1443(2). The State of Louisiana moved for an order remanding the case to the state court on the ground that removal is not authorized by § 1443(1) or (2).
Under 28 U.S.C.A. § 1447(c) the Court must remand a case if it appears at any time prior to final judgment that the case was removed improvidently and without jurisdiction, and in such a case may order the payment of costs by the removing party. On a motion to remand, the removing party bears the burden of proving that removal was proper and that the court has jurisdiction. Carson v. Dunham, 121 U.S. 421, 7 S.Ct. 1030, 30 L.Ed. 992 (1887); 1 Barron Holtzoff § 109, n. 45. Jurisdiction being alleged by petitioners here to lie under § 1443, whether or not removal is authorized by that section is the sole question before the Court. Section 1443 states:
"Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States * * *:
"(1) 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 * * *;
"(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law."
With respect to petitioners' contention that removal is authorized under the first phrase of § 1443(2), we need only note that there is no allegation by petitioners that they were acting in the capacity of federal agents or officers, or for such agents or officers at the time of the alleged theft. Removal is therefore not authorized under that portion of § 1443(2), as interpreted by City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966).
The Court stated simply that "* * * the second subsection of § 1443 confers a privilege of removal only upon federal officers or agents and those authorized to act with or for them in affirmatively executing duties under any federal law providing for equal civil rights." 384 U.S. at 824, 86 S.Ct. at 1810.
Petitioners can support removal under § 1443(1) only by showing both (1) that the right upon which they rely is a "right under any law providing for * * * equal civil rights" and (2) that they are "denied or cannot enforce" that right in the courts of Louisiana. State of Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966). The petitioners have not satisfied either requirement — not as a matter of fact, but as a matter of law.
Turning to their removal petition, we find that petitioners have alleged the following denials of rights:
1. Petitioners were indicted by a grand jury improperly constituted because of systematic exclusion of daily wage earners (Count 4 of the petition);
2. Petitioners were forced to incriminate themselves before the grand jury (Count 7 of the petition);
3. The trial judge improperly denied the petitioners' motions for bills of particulars (Count 9);
4. Petitioners are charged with an act which, under the law of Louisiana, is not a crime;
5. That all of the above "denials" of rights have been perpetrated upon these petitioners solely because they are in the finance business and that the authorities in the State of Louisiana are thereby practicing "obvious discrimination against petitioners as a class," that class presumably consisting of all those in the finance business.
It should be noted that the petitioners, in their memorandum in advance of the hearing and in their arguments at the hearing of this motion to remand, concentrated solely on the first alleged denial of right, that is, the improperly constituted grand jury, and the petitioners seem to have abandoned their last four allegations. A thorough study of the Rachel and Peacock cases bears out the appropriateness of this approach. Petitioners' opening statement in their memorandum in opposition to this motion to remand thus states as follows:
"With certain exceptions as noted below the memorandum submitted by the state does present a fairly accurate picture of what the Supreme Court of the United States has recently declared in the Rachel and Peacock cases as to the limited scope of the present removal statute. The state has, however, avoided almost entirely the main point in our present claim for removal here, namely, the prejudicial effects to petitioners of the invalid indictment referred to in ¶¶ 4 and 5 of our petition for removal [in which the petitioners alleged improper constitution of the grand jury]."
The right to a properly composed grand jury, as asserted by the petitioners here, is simply not a right embodied in "any law providing for * * * equal civil rights" as the latter phrase is used in § 1443(1) and interpreted by the Greenwood and Rachel decisions. The phrase requires that the rights asserted be not only "equal rights," but also that they be embodied in a certain type of law. The Supreme Court stated in the Rachel case that
"In spite of the potential breadth of the phrase 'any law providing for * * * equal civil rights,' it seems clear that in enacting [the predecessor of § 1443] Congress intended in that phrase only to include laws comparable in nature to the Civil Rights Act of 1866." 384 U.S. 780, 789-790, 86 S.Ct. 1783, 1789.
We are convinced that if the Civil Rights Act of 1866, or "laws comparable to it," are to be the only laws under which removal can be had under § 1443(1), then the right petitioners assert here will not support removal. Petitioners claim that the rights they were allegedly denied emanate not only from the broad constitutional guarantees of the Fourteenth Amendment, but also from the provisions of a Louisiana statute relating to the qualifications of jurors, LSA-R.S. 15:172, and also from a federal statute of, in the petitioners' words, "ancient vintage," 42 U.S.C.A. § 1981.
R.S. 15:172 contained the provision that, in the selection of jurors (both grand and petit) "there shall be no distinction made on account of race, color or previous condition of servitude." Section 172 has now been replaced by Article 401 of the Louisiana Code of Criminal Procedure, from which the quoted provision has been deleted. See LSA-C.Cr.P. Art. 401 comment (e).
None of these provisions are "comparable in nature to the Civil Rights Act of 1866." The constitutional provisions embodied in the Fourteenth Amendment cannot meet that standard, nor can the state law relied on by petitioners here. Certainly one of the basic requisites for a law to fit the comparison with the Civil Rights Act of 1866 is that it be a federal statute. The discussion of the history of the removal statute in Rachel makes that quite clear. 384 U.S. at 791, 792, 86 S.Ct. 1783. Moreover, the petitioners' reliance on the Louisiana statute relating to the drawing of juries must be recognized as an attempt to bypass the most basic requirements of federal question jurisdiction. Reliance on a right under a state law as a basis for removal jurisdiction would make this case one "arising under" a state law and not a federal law, and under the Constitution there could be no federal question jurisdiction.
Of course, the possible federal jurisdictional basis of the Fourteenth Amendment itself would still exist, but Congress simply has not granted removal jurisdiction of state criminal cases on that basis.
Nor do we think that the federal statute contained in 42 U.S.C.A. § 1981 meets the test of comparison with the 1866 Act. It provides for no specific civil rights. Rachel states that
"On the basis of the historical material that is available, we conclude that the phrase 'any law providing for * * * equal civil rights' must be construed to mean any law providing for specific