162 F.2d 136 (2nd Cir. 1947), 224, Bomar v. Keyes

Docket Nº:224, 20533.
Citation:162 F.2d 136
Party Name:BOMAR v. KEYES et al.
Case Date:May 16, 1947
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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162 F.2d 136 (2nd Cir. 1947)



KEYES et al.

Nos. 224, 20533.

United States Court of Appeals, Second Circuit.

May 16, 1947

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[Copyrighted Material Omitted]

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Willie Melmoth Bomar, pro se.

Arthur H. Kahn and Charles E. Murphy, Corp. Counsel, both of New York City (Seymour B. Quel, of New York City, of counsel), for appellees.

Before L. HAND, SWAN, and CLARK, Circuit Judges.

L. HAND, Circuit Judge.

The plaintiff appeals from a judgment summarily dismissing her complaint in an action under the Civil Rights Act 1 to recover damages for 'deprivation' of a privilege 'secured' by one of the 'laws' of the United States. The record is to the last degree confusing and inadequate; but we gather that the grievance intended to be set forth was that plaintiff, a 'probationary teacher of home economics' in a Brooklyn high school, was discharged from that position because of a complaint lodged against her by the 'probationary principal' of the school- the defendant, Keyes- with the Board of Education of New York. The gravamen of the complaint which Keyes made to the Board was that the plaintiff had been absent from her teaching from March 7, 1939 to April 4, 1939, while serving upon a federal jury. The Board discharged her on October 30 or 31, 1939- the exact date is uncertain- and on February 6, 1940, she appealed to the Commissioner of Education of the State of New York and applied for re-instatement, alleging that she had been discharged because of 'displeasure with petitioner's assumption of jury duty.' On October 20, 1940, the Commissioner dismissed her appeal upon the ground that she 'had not secured permanent tenure. Having been duly dismissed by the Board of Education during her probationary period, such dismissal is not subject to review.' On February 14, 1941, she brought an action in the Supreme Court of the State of New York for Albany County 2 against the Commissioner of Education and the Board of Education, again seeking re-instatement, in which she alleged that she had been 'penalized for her proper and legal performance of her duties and obligations of citizenship, including the assumption of jury duty.' This petition was also dismissed upon the merits upon the same ground that the Commissioner of Education had dismissed her previous appeal. 3 She filed her complaint in this action on October 31, 1945, but the defendants were not served with the summons and complaint until December of that year.

The first question is whether the district court had jurisdiction under the Civil Rights Act 4 which, with proper omissions, reads as follows: 'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State * * * subjects * * * any citizen * * * to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law * * * .' The Judicial Code 5 provides that jurors in the courts of the United States 'shall have the same qualifications * * * and be entitled to the same exemptions, as jurors of the highest court of law in such State may have and be entitled to * * * .' Women are qualified jurors in the County of Kings, 6 but they are 'entitled to exemption from service * * * upon claiming exemption.' 7 The jurisdiction of the district court therefore depends upon whether the Judiciary Act, 5 which thus indirectly qualified women as federal jurors, but entitled them to exemption if they claimed it, conferred upon them a 'privilege' within the Civil Rights Act. 8 Although the books are full of cases under that statute concerning

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deprivation of rights and privileges, secured by the Constitution, we have been unable to find any in which the right or privilege at stake was secured by a 'law' of the United States. Nevertheless the language is so plain that the only question is whether this particular 'law' secured to the plaintiff a 'privilege.' By that word we understand a freedom to assert a legal right or a legal power: in this case, the power to take part in the administration of justice. All sorts of desires may, and do, impel people to sit on juries: to some it gives a sense of importance; some deem it an imperative moral duty; some like the spectacle; some enjoy its ironies; some even find it profitable. We do not see how it can be questioned that to prevent a person, who wishes to do so, to serve on a federal jury, is to deny an interest which the statute means to protect. True, the plaintiff did serve upon the jury- literally, she was not 'prevented' from doing so- but it would emasculate the act either to deny protection against reprisal to those whom threats did not deter, or to leave without recourse those who were later made the victims of reprisals of which they had not been warned. Indeed, this is the inevitable implication of Douglas v. Jeannette, 9 in which those aggrieved by prospective...

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