Bokulich v. Jury Commission of Greene County, Alabama

• Decision Date: 13 September 1968
• Docket Number: Civ. A. No. 66-562.
• Citation: 298 F. Supp. 181
• Parties: Paul M. BOKULICH, Willie Carter, Sr., John Head, Rev. Percy McShan, on their own behalf and on behalf of all others similarly situated, Plaintiffs, and George Greene and Hubert G. Brown, Intervenors-Plaintiffs, v. JURY COMMISSION OF GREENE COUNTY, ALABAMA, Walter Morrow, Albert Gray, and Melvin Durrette, as members of the Jury Commission of Greene County, Alabama, Mary C. Yarborough, as Clerk of the Jury Commission of Greene County, Alabama, E. F. Hildreth, as Circuit Judge for the 17th Judicial District of Alabama, T. H. Boggs, as District Attorney for Greene County, Alabama, Ralph Banks, Jr., as County Attorney for Greene County, Alabama, and Lurlene B. Wallace, as Governor of the State of Alabama, Defendants.
• Court: U.S. District Court — Northern District of Alabama

298 F. Supp. 181

Paul M. BOKULICH, Willie Carter, Sr., John Head, Rev. Percy McShan, on their own behalf and on behalf of all others similarly situated, Plaintiffs and George Greene and Hubert G. Brown, Intervenors-Plaintiffs, v. JURY COMMISSION OF GREENE COUNTY, ALABAMA, Walter Morrow, Albert Gray, and Melvin Durrette, as members of the Jury Commission of Greene County, Alabama, Mary C. Yarborough, as Clerk of the Jury Commission of Greene County, Alabama, E. F. Hildreth, as Circuit Judge for the 17th Judicial District of Alabama, T. H. Boggs, as District Attorney for Greene County, Alabama, Ralph Banks, Jr., as County Attorney for Greene County, Alabama, and Lurlene B. Wallace, as Governor of the State of Alabama, Defendants.

Civ. A. No. 66-562.

United States District Court N. D. Alabama, W. D.

September 13, 1968.

COPYRIGHT MATERIAL OMITTED

Donald A. Jelinek, Lawyers Constitutional Defense Committee, Selma, Ala., Alvin J. Bronstein, Lawyers Constitutional Defense Committee, Jackson, Miss., Arthur Kinoy, William M. Kunstler, New York City, Morton Stavis, Harriet S. Van Tassel, Dennis J. Roberts, Newark, N. J., Orzell Billingsley, Jr., Birmingham, Ala., Norman Amaker, New York City, for plaintiffs.

Richmond M. Flowers, Atty. Gen., MacDonald Gallion, Atty. Gen., Robert P. Bradley, Asst. Atty. Gen., State of Alabama, Montgomery, Ala., Thomas H. Boggs, Solicitor 17th Judicial Circuit of Alabama, Linden, Ala., Ralph Banks, Jr., County Atty., for Greene County, Alabama, Eutaw, Ala., for defendants.

Before GODBOLD, Circuit Judge, and GROOMS and ALLGOOD, District Judges.

GODBOLD, Circuit Judge:

This suit is an attack on the jury system of Greene County, Alabama. The plaintiffs charge that there is systematic exclusion of Negroes from grand and petit juries by reason of purposeful discrimination, in violation of the Constitution of the United States and the Constitution of the State of Alabama. They charge that Tit. 30, §§ 4 and 21 of the Code of Alabama (1958) establishing qualifications for jurors are, on their face and as applied, in violation of the Fourteenth Amendment to the Constitution of the United States. And they claim that the all-white jury commission of Greene County is unconstitutionally constituted.

Both declaratory and injunctive relief are sought. Jurisdiction of this court is invoked under 28 U.S.C.A. § 1343 and 42 U.S.C.A. § 1983. A three-judge court has been convened pursuant to 28 U.S. C.A. § 2281. Notice of the suit has been given to the Attorney General and Governor of Alabama as required by 28 U.S. C.A. § 2284(2).

The court has considered the evidence consisting of oral testimony, testimony by deposition, numerous exhibits, and stipulations of the parties, and pursuant to Fed.R.Civ.P. 52 makes and enters in this opinion the appropriate findings of fact and conclusions of law.

Each plaintiff sues on his own behalf and, pursuant to Fed.R.Civ.P. 23, on behalf of a class of those similarly situated. Plaintiff Paul Bokulich is a white civil rights worker associated with the Southern Christian Leadership Conference. He was arrested in Greene County and charged with two counts of grand larceny. His arrest followed soon after a sharply-contested primary election in which Negroes were successful candidates for county office. Plaintiffs Willie Carter, Sr., John Head and Rev. Percy McShan are Negro residents of Greene County who allege that they are qualified under the laws of Alabama to serve as jurors in the Circuit Court of Greene County and desire to serve but never have been summoned for jury service. Plaintiffs-intervenors George Greene and Hubert G. Brown are Negro civil rights workers for the Student Non-Violent Coordinating Committee. While working in Greene County in connection with the general election to be held in November 1966 they were arrested on charges of grand larceny.

Temporary restraining orders have been granted against presentation to the Greene County grand jury of charges against Bokulich, Greene and Brown.

The defendants are the members and the clerk of the Greene County jury commission, the Circuit Judge and District Attorney of the state judicial circuit in which Greene County is located, the County Attorney, and the then Governor of Alabama.

The claim of systematic exclusion of Negroes from the Greene County jury roll has been in the courts before. Coleman v. Barton, No. 63-4, N.D.Ala., June 10, 1964, was a suit against the members and clerk of the jury commission. The district judge granted a declaratory judgment but on grounds of comity declined to grant injunctive relief. Pertinent extracts from the judgment then entered are as follows:

"1. The Jury Commission of Greene County, Alabama, is under a statutory duty of seeing that the names of every person possessing the qualifications to serve as jurors, and not exempt by law from jury duty, be placed on the jury roll and in the jury box of said County.

"2. The Clerk of the Jury Commission of Greene County, Alabama, is under a duty to comply with Section 24 of Title 30 of the Code of Alabama, 1940, to visit every precinct in Greene County at least once a year to enable the Jury Commission to properly perform its duties as commissioners as required by law.

"3. The jury commissioners of Greene County, Alabama, are under a duty to familiarize themselves with the qualifications of eligible jurors without regard to race or color.

"4. The jurors be selected and the roll made up and the box filled on the basis of individual qualifications and not as a member of a race.

"5. No person otherwise qualified be excluded from jury service because of his race.

"6. The Commission not pursue a course of conduct in the administration of its office which will operate to discriminate in the selection of jurors on racial grounds.

"7. In making up and establishing the jury roll and in filling the jury box mere symbolic or token representation of Negroes will not meet the constitutional requirements and that numerical or proportional limitations as to race are forbidden.

"8. The jury roll and the jury box as presently constituted be examined for compliance with these standards and the declaration herein made."

Contemporaneously the same Coleman was making his way through the state courts, and the United States Supreme Court, on a direct appeal from a conviction of murder in Greene County.¹ The conclusion of the United States Supreme Court in its second opinion, 389 U.S. 22, 88 S.Ct. 2, 19 L.Ed.2d 22, was that Coleman had established a prima facie case of denial of equal protection by systematic exclusion of Negroes from Greene County juries, and the state had not adduced evidence sufficient to rebut the prima facie case.

1. Standing.

Brown and George Greene are Negroes, charges against whom are proposed to be submitted to the grand jury. Their standing to sue is apparent. Bokulich does not lack standing because he is white. Rabinowitz v. United States, 366 F.2d 34 (5th Cir. 1966); Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966); United States v. Hunt, 265 F.Supp. 178 (W.D.Tex., 1967); Allen v. State, 110 Ga.App. 56, 137 S.E.2d 711 (1964); State v. Lowry, 263 N.C. 536, 139 S.E.2d 870 (1965).²

Head was shown to meet standards for jurors established by Alabama law.³ We find that he represents the interests of a class composed of Negro citizens of Greene County qualified under state law for jury service, entitled to be considered for such service, and in such consideration to have applied to them non-discriminatory standards and procedures, and as such he has standing to sue. Billingsley v. Clayton, 359 F.2d 13 (5th Cir.), cert. denied 385 U.S. 841, 87 S.Ct. 92, 17 L.Ed.2d 74 (1966); White v. Crook, 251 F.Supp. 401 (M.D. Ala.1966); Mitchell v. Johnson, 250 F. Supp. 117 (M.D.Ala.1966); Brown v. Rutter, 139 F.Supp. 679 (W.D.Ky.1956).

2. The selection methods of the jury commission.

There is a jury commission of three members in each county appointed by the governor. The clerk of the Circuit Court may be employed as clerk of the commission, Tit. 30, § 15, and in Greene County was so employed. The commission is charged with the duty of preparing a jury roll containing the name of every citizen living in the county who possesses the prescribed qualifications and who is not exempted by law from serving on juries. Tit. 30, §§ 20, 21 and 24. Tit. 30, § 21 prescribes the qualifications and is quoted in the margin.⁴

The statutory scheme for the selection process begins with the names of substantially all persons potentially eligible for jury service and that group then is narrowed to exclude those not eligible. Sec. 18 provides:

The clerk of the jury commission shall, under the direction of the jury commission obtain the name of every citizen of the county over twenty-one and under sixty-five years of age and their occupation, place of residence and place of business, and shall perform all such other duties required of him by law under the direction of the jury commission.⁵

This section, as well as §§ 20 and 21, was amended by Act No. 285, Acts of Alabama, Special Session 1966, p. 428, adopted September 12, 1966, so as to embrace all citizens rather than male citizens only.

The commission is directed to require the clerk to scan the registration lists, the tax assessor's lists, any city directories and telephone directories "and any and every other source of information from which he may obtain information, and to visit every precinct at least once a year." Tit. 30, § 24.

Necessarily there are two steps in the selection of jurors for the jury roll. First there must be a selection of persons to be considered, i. e., the persons to whom the commissioners are to apply the statutory qualifications. Then the criteria of the statutes must be applied to those who are up for consideration.^5A The end product of the system established by the Alabama legislature is placing on the jury roll the names of all adult persons who are...