Constitutional Law: The Rage to Remove

What do a Brooklyn gambler, a Manhattan cop, a Harlem politician, the mother of Massachusetts' Governor and hundreds of civil rights workers from Florida to Mississippi have in common? Answer: all are trying to remove the various criminal charges against them from state to federal courts. They are caught up in a headlong trend that intrigues lawyers, alarms judges, and is certain soon to confront the Supreme Court with some of the thorniest state-federal conflicts in U.S. legal history.

Rightly or wrongly, many lawyers regard federal courts as fairer than state courts. "The judges are honest, the jurors are brighter," says one lawyer bluntly. Certain kinds of cases, such as some suits between citizens of different states, have always been removable to federal courts. But the states are supposed to handle the vast bulk of U.S. litigation. To states' rights advocates, Congress went haywire after the Civil War when it set out to prevent the abuse of Negroes by extending the "removal" right, under what is now Title 28, Section 1443 of the U.S. Code, to what looked at first like a sweeping category of civil and criminal cases that involved alleged state denial of equal rights.

Flooding the Courts. Alarmed at the potential damage to state courts, the Supreme Court, beginning in the 1870s. sharply limited the right of removal to cases involving clearly unconstitutional state laws, such as a murder law prescribing a life sentence for whites and death for Negroes. U.S. district judges got in the habit of sending removed cases back to state courts for trial, and when a defendant's case was thus remanded, he had no right to appeal the federal judge's order.

But the civil rights revolution has raised sharp questions. Where can a Mississippi Negro, for example, seek relief if the state denies him a fair trial and a federal judge refuses to listen? Must he travel the long road through the state courts to the U.S. Supreme Court? All over the South, arrested civil rights workers have complained that the tradition of immediate remand denies them federal hearings in cases of obviously violated constitutional rights. The answer to their complaint is Title IX of the 1964 Civil Rights Act, which now permits remands to be appealed to U.S. courts of appeals.

Spurred by the promise of Title IX, which became effective in July, more and more remand appeals have plagued the South's Fifth Circuit Court of Appeals. The cases range from trumped-up traffic violations against Mississippi rights workers to group petitions for several hundred defendants (including Massachusetts' Mrs. Malcolm Peabody, the Governor's mother) who were involved in last spring's racial demonstrations in St. Augustine, Fla.

Dismay & Delight. So new is this phenomenon that the appellate court has yet to rule on the merits of a single appeal, and the defendants, as a result, are free on bail. Now there is a prickly prospect that federal courts may be deluged with every single state case bearing the slightest alleged connection to civil rights. In short, Title IX might turn out to be a gateway through which much state-court business will vanish.