316 F2d 236 United States v. R Barnett B

316 F.2d 236

UNITED STATES of America
v.
Ross R. BARNETT and Paul B. Johnson, Jr.

No. 20240.

United States Court of Appeals Fifth Circuit.

April 9, 1963.

Constance Baker Motley, New York City, Leon Jaworski, W. H. Vaughan, Jr., Houston, Tex., for the United States.

Dugas Shands Asst. Atty. Gen. of Miss., Malcolm B. Montgomery, Jackson, Miss., Fred B. Smith, Ripley, Miss., Charles Clark, Garner W. Green, Sr., Joe T. Patterson, Atty. Gen. of Miss., Jackson, Miss., for respondents.

Before TUTTLE, Chief Judge, and RIVES, CAMERON, JONES, BROWN, WISDOM, GEWIN and BELL, Circuit Judges.

PER CURIAM.

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1

Upon consideration of the following motions filed by the State of Mississippi and by the named respondents, and after argument of counsel;

2

1. The Motion of the United States to strike the Motion and plea of the State of Mississippi to dismiss the proceedings as being in violation of the Tenth and Eleventh Amendments to the Constitution is granted.

3

CAMERON, Circuit Judge, dissenting.

4

The following motions are denied.

5

1. Motions of Barnett and Johnson to dismiss all proceedings in original Action No. 20,240 for lack of process.

6

CAMERON, Circuit Judge, dissenting.

7

2. First alternative motions of Barnett and Johnson to dismiss original proceedings in cause No. 20,240 and all contempt proceedings in cause No. 19,475 based on improper and insufficient application.

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8

CAMERON, Circuit Judge, dissenting.

9

3. Second alternative motions of Barnett and Johnson to dismiss original proceedings in cause No. 20,240 for lack of venue or jurisdiction.

10

CAMERON, Circuit Judge, dissenting.

11

4. Third alternative motions of Barnett and Johnson to dismiss all pending proceedings in criminal contempt for lack of Grand Jury presentment or indictment.

12

CAMERON, Circuit Judge, dissenting.

13

5. Fourth alternative motions of Barnett and Johnson to dismiss all proceedings in original action No. 20,240 for lack of jurisdiction to summons a constitutional jury.

14

CAMERON and GEWIN, Circuit Judges, are of the opinion that this question is necessarily involved in the question certified to the Supreme Court.

15

The Court does not now pass on the following:

16

1. Motions of Barnett and Johnson for severance.

17

2. Motion of Johnson to strike the third charge contained in the order to show cause of date January 4, 1963.

18

3. Motion of Barnett to strike the third and fourth charges contained in the order to show cause of date January 4, 1963.