382 F.2d 9
STUDENT NON-VIOLENT COORDINATING COMMITTEE et al., Appellants,
Carl SMITH, Appellee.
United States Court of Appeals Fifth Circuit.
Aug. 23, 1967.
C. B. King, Albany, Ga., Howard Moore, Jr., Atlanta, Ga., Melvyn Zarr, Charles Stephen Ralston, Jack Greenberg, Charles H. Jones, Jr., New York City, Anthony G. Amsterdam, Washington, D.C., of counsel, for appellants.
H. P. Burt, Burt & Burt, Donald D. Rentz, Albany, Ga., for appellee.
Before BROWN, Chief Judge, COLEMAN, Circuit Judge, and DAWKINS, District Judge.
JOHN R. BROWN, Chief Judge:
This civil rights removal case is more fallout from 'the Albany, Georgia imbroglio. See Kelly v. Page, 5 Cir., 1964, 335 F.2d 114; Rabinowitz v. United States, 5 Cir., 1966, 366 F.2d 34', Smith v. United States, 5 Cir. 1967, 375 F.2d (April 3, 1967). Smith, the plaintiff, sued the defendants in the Georgia State Court for damages growing out of picketing of his store. His claim was that the defendants had conspired to boycott his store because of his service on a recent federal jury which tried a civil rights case against the sheriff of Dougherty County, Georgia and found for the sheriff. The defendants removed the case to the Federal Court under the Civil Rights Removal provisions of 1443(1). The District Court remanded it to the State Court.
Thus it is another in a long line of removal cases beginning with Strauder v. West Virginia, 1880, 100 U.S. 303, 25 L.Ed. 664, and State of Virginia v. Rives, 1880, 100 U.S. 313, 25 L.Ed. 667, Kentucky v. Powers, 1906, 201 U.S. 1, 26 S.Ct. 387, 50 L.Ed. 633, culminating in the Supreme Court's recent pronouncements in Rachel v. State of Georgia, 1966, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925, and City of Greenwood, Miss v. Peacock, 1966, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944. And even more recently this Court's decision in Bass v. State of Mississippi, 5 Cir., 1967, 381 F.2d 692 (No. 24029, July 31, 1967).
The grounds asserted for removal were twofold. First, it was claimed, that the real purpose of this suit was to harass, intimidate and obstruct the defendant's exercise of their constitutionally protected right to freedom of speech and peaceful protest against racially discriminatory policies in the City of Albany. Therefore, the pendency of the action in the courts of the State of Georgia would deny them equal protection of the laws under the First and Fourteenth Amendments of the Constitution and 42 U.S.C.A. 1983. The second had to do with racial jury exclusion. The defendants asserted that they could not enforce and were denied in the courts of Georgia the right to be free of racial discrimination or segregation in the composition of the jury which would try the present suit. Such denial arose because the jury commissioners are required by Ga.Code Ann. 59-106 to select the names of persons eligible for jury service in criminal and civil proceedings from the tax digests of the respective county. Under Ga.Code Ann. 92-6307, these tax digests are maintained and organized on the basis of race or color in that Negro and white taxpayers are listed separately.
Time, tide, and now and then the law wait on no man. But here by waiting, time and outside events have worked toward an affirmance of an order of possible initial limited mortality.
In view of Peacock and Rachel, nothing need be said as to the first ground which invoked the First and Fourteenth Amendments. Whatever other Federal remedies might be available to vindicate these rights they do not meet the Rachel test of a statute providing for specific civil rights stated in terms of racial equality. Bass v. Mississippi, 5 Cir., 1967, 381 F.2d 692 (No. 24029, July 31, 1967). Remand on this score was proper.
And so too has it become on the racial jury exclusion ground. We phrase it this way for the passage of time and events eliminates the two questions whether the race-indicated tax digest (note 6 supra) and its mandatory use in making up the jury lists (note 5 supra) (1) was itself an invalid statutory structure apart from administration under it and (2) if so, was this such a statute as to satisfy the Peacock-Rachel standard of a prediction that the right to a trial free from racial jury exclusion would be denied or could not be enforced in the state courts. These events also make it unnecessary for us to divine whether Whitus and Sims (see note 7 supra) apart from maladministration under them condemns the Georgia statutes (notes 5 and 6 supra) outright because of the system and the ready opportunity for discrimination.
For these statutes have been repealed and no trace of statutory racial distinctions remain. Former 92-6307 (note 6 supra) has been so thoroughly replaced as to be scarcely recognizable. And the successor to 59-106 (note 5 supra) abandoning completely any tie into the tax digests bears the strong imprint of recent decisions on jury composition including perhaps some of our own en banc.
The result is that measuring today the propriety of an earlier remand of a case we must reckon with the fact that this ground for removal no longer exists. No longer is there the requisite state statute on which to base the prediction that the parties will be denied or cannot enforce in the state courts the federally recognized right to a trial free of racial discrimination.
With the cases back in the state court there is no statute which will deny the federal right. Likewise, there is now no statute which makes enforcement of that right in the state courts unobtainable. If impermissible discrimination occurs it will come, not from the statutory scheme, but from maladministration. Removal under 1443(1) is not the remedy for that.