Commonwealth of Virginia v. Fred Wallace

357 F.2d 105, 1966 U.S. App. LEXIS 7448

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 21, 1966
• Docket: 9462
• Status: Published

Opinions

HAYNSWORTH, Chief Judge:

We agree with the District Judge that this case, involving state charges of assault, disorderly conduct and related offenses, was not removable under the provisions of 28 U.S.C.A. § 1443.

Wallace, a law school student, had accepted a summer clerkship with Messrs. Tucker and Marsh of Richmond, Virginia. That firm had represented Negroes in a number of school and other cases with racial significance. It sent their clerk, Wallace, to Prince Edward County in connection with their representation of some civil rights demonstrators who had been arrested there. In the court house, he became involved in a fracas with two deputy sheriffs, out of which the charges grew.

In the removal petition, Wallace alleges that he was accosted because of his race and that he only resisted an effort to interfere with his conduct of his lawful business.

He claims to have been exercising his constitutional rights in aid of the constitutional rights of the clients of his employer. He undertook removal under both § 1443(1) and (2).

What we have said in Baines v. City of Danville, 4 Cir., 357 F.2d 756, decided today, substantially disposes of this case. Here, however, two contentions, which we had no occasion to consider in Baines, are advanced.

Because the Court in Barney v. City of New York, 193 U.S. 430, 24 S.Ct. 502, 48 L.Ed. 737, attributed to Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667, a very restrictive concept of state action and because Barney’s formulation was later rejected,¹ it is said that Virginia v. Rives and Com. of Kentucky v. Powers, 201 U.S. 1, 26 S.Ct. 387, 50 L.Ed. 633, must also have been rejected. The obvious answer is that Rives is susceptible of no such reading. Discrimination in the selection of a jury, though unsanctioned by state law, is state action, and, because it is, a judgment tainted with such discrimination will be reversed on certiorari to the state court.² It is not removable in advance, however, because the basis of removal cannot then be demonstrated with that certainty contemplated by the Civil Rights Act of 1866 and its sponsors, as we have undertaken to show in our opinion in Baines.

Here, it is also contended that the jury commissioners in Prince Edward County limit the number of Negroes so that seldom, if ever, are there so many that all may not be removed by peremptory challenges. This, of course, is the same contention which the Rives-Powers line of cases has held insufficient to support removal. Here, however, it is said that discrimination by the commissioners has the sanction of Virginia’s Supreme Court of Appeals. The opinion in Bailey v. Commonwealth, 193 Va. 814, 71 S.E.2d 368, is cited as that sanction.

We cannot construe that opinion as having any such meaning. Particularly when read in the light of the opinion in Bailey’s first appeal³ and of our opinion in Bailey’s subsequent habeas corpus case,⁴ it is apparent that Virginia’s Supreme Court of Appeals follows the approved doctrine.⁵

Since the case was not removable under 28 U.S.C.A. § 1443, we affirm the remand order.

Affirmed.

1 . United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524.

2 . See e. g. Bush v. Com. of Kentucky, 107 U.S. 110, 1 S.Ct. 625, 27 L.Ed. 354.

3 . Bailey v. Commonwealth, 191 Va. 510, 62 S.E.2d 28.

4 . Bailey v. Smyth, 4 Cir., 220 F.2d 954.

5 . See also, Clark v. Commonwealth, 167 Va. 472, 189 S.E. 143.