329 U.S. 187 (1946), 37, Ballard v. United States

Docket Nº:No. 37
Citation:329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181
Party Name:Ballard v. United States
Case Date:December 09, 1946
Court:United States Supreme Court
 
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Page 187

329 U.S. 187 (1946)

67 S.Ct. 261, 91 L.Ed. 181

Ballard

v.

United States

No. 37

United States Supreme Court

Dec. 9, 1946

Argued October 15, 1946

CERTIORARI TO THE CIRCUIT COURT OF APPEALS

FOR THE NINTH CIRCUIT

Syllabus

1. In a State where women are eligible for jury service under local law, a federal jury panel from which women are intentionally and systematically excluded is not properly constituted, and this Court will exercise its power of supervision over the administration of justice in the federal courts to correct the error. Thiel v. Southern Pacific Co., 328 U.S. 217. Pp. 190-196.

(a) Sections 275-278 of the Judicial Code reflect a design to make the jury a cross-section of the community and truly representative of it. P. 191.

(b) The system of jury selection which Congress has adopted contemplates that juries in federal courts sitting in States where women are eligible for jury service under local law will be representative of both sexes. P. 191.

(c) The systematic and intentional exclusion of women, like the exclusion of a racial group or an economic or social class, deprives the jury system of the broad base it was designed by Congress to have. P. 195.

2. When a jury in a criminal case is drawn from a panel not properly constituted, reversible error does not depend on a showing of prejudice in an individual case; since the injury is not limited to the defendant, but extends to the jury system, to the law as an institution, to the community at large, and to the democratic ideal reflected in the processes of our courts. P. 195.

3. When this Court finds that a petit jury was drawn from an improper panel, it will remand the case for a new trial; but when it finds that the grand jury which returned an indictment was drawn from such a panel, the indictment must be dismissed. Pp. 195-196.

4. An issue properly raised on the record by defendants in a criminal case in a Federal District Court and assigned as error on appeal was not passed on by the Circuit Court of Appeals in reversing the

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conviction. On petition of the Government which did not raise that issue, this Court granted certiorari, reversed the judgment of the Circuit Court of Appeals, and remanded the case to that Court, which then passed on the issue adversely to defendants and affirmed the conviction. Defendants then petitioned for certiorari, which was granted.

Held, defendants have not lost the right to urge that question here. P. 190.

152 F.2d reversed.

Petitioners were indicted and convicted in a District Court for using, and conspiring to use, the mails to defraud, The Circuit Court of Appeals reversed on the ground that the trial judge erred in withholding from the jury all questions concerning the truth or falsity of their religious beliefs or doctrines. 138 F.2d 540. On petition of the Government, this Court granted certiorari, 320 U.S. 733, reversed the decision of the Circuit Court of Appeals, and remanded the case to that Court for further proceedings. 322 U.S. 78. The Circuit Court of Appeals then affirmed the conviction. 152 F.2d 941. On petition of defendants, this Court granted certiorari to review questions reserved in its previous decision. 326 U.S. 773. Reversed, p. 196.

DOUGLAS, J., lead opinion

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

This case is here for the second time. It involves the indictment and conviction of respondents for using, and conspiring to use, the mails to defraud. Criminal Code

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§ 215, 18 U.S.C. § 338; Criminal Code § 37, 18 U.S.C. § 88. The fraudulent scheme charged was the promotion of the I Am movement, which was alleged to be a fraudulent religious organization, through the use of the mails. The nature of the movement and the facts surrounding its origin and growth are summarized in our prior opinion. 322 U.S. 78. It is sufficient here to say that petitioners were found guilty on a charge by the trial judge which withheld from the jury all questions concerning the truth or falsity of their religious beliefs or doctrines. The Circuit Court of Appeals reversed and granted a new trial, holding it was error to withhold those questions from the jury. 138 F.2d 540. We, in turn, reversed the Circuit Court of Appeals and sustained the District Court in that ruling. Petitioners argued, however, that, even though the Circuit Court of Appeals erred in reversing the judgment of conviction on that ground, its action was justified on other distinct grounds. But the Circuit Court of Appeals had not passed on those other questions, and we did not have the benefit of its views on them. We accordingly deemed it more appropriate to remand the cause to that court so that it might first pass on the questions reserved.

On the remand, the Circuit Court of Appeals, one judge dissenting, affirmed the judgment of conviction without discussion of the issues raised. On a petition for rehearing, which was denied, the Circuit Court of Appeals filed an opinion which discussed some, but not all, of the questions which had been reserved. 152 F.2d 941. We granted the petition for certiorari because of the serious questions concerning the administration of criminal justice which were raised.

We are met at the outset with the concession that women were not included in the panel of grand and petit jurors in the Southern District of California where the

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indictment was returned and the trial had; that they were intentionally and systematically excluded from the panel.1 This issue was raised by a motion to quash the indictment and by a challenge to the array of the petit jurors because of intentional and systematic exclusion of women from the panel. Both motions were denied, and their denial was assigned as error on appeal. The jury question has been in issue at each stage of the proceedings, except the first time that the case was before us. At that time, the point was not assigned or argued. But the case was here at the instance of the United States, not at the instance of the present petitioners. As we have said, there were other issues in the case obscured by the question brought here by the United States and which had not been passed upon below or argued before this Court. Consequently, when we remanded the case for consideration of the remaining issues by the Circuit Court of Appeals, the jury issue was argued. The Circuit Court of Appeals did not hold that it had been waived. That court passed upon the issue, concluding that there was no error in the exclusion of women from the panel. 152 F.2d at 944, and see dissent at 953. Under these circumstances, we cannot say (and the government does not suggest) that petitioners have lost the right to urge the question here. Moreover, in this case, as in Reynolds v. United States, 98 U.S. 145, 168, 169, the error, though not presented here on the first argument, appears on the face [67 S.Ct. 263] of the record before us. And see Sibbach v. Wilson & Co., 312 U.S. 1, 16.

Congress has provided that jurors in a federal court shall have the same qualifications as those of the highest court of law in the State. Judicial Code § 275, 28 U.S. 338; Criminal Code § 37, 18 U.S.C. § 88, c. § 411.

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This provision applies to grand, as well as petit, juries.2 Congress also has prohibited disqualification of citizens from jury service "on account of race, color, or previous condition of servitude."3 It has required that jurors shall be chosen "without reference to party affiliations."4 It has provided that jurors shall be returned from such parts of the district as the court may direct

so as to be most favorable to an impartial trial, and so as not to incur an unnecessary expense, or unduly burden the citizens of any part of the district.5

None of the specific exemptions6 which it has created is along the lines of sex.

These provisions reflect a design to make the jury "a cross-section of the community," and truly representative of it. Glasser v. United States, 315 U.S. 60, 86.

In California, as in most States,7 women are eligible for jury service under local law. Code of Civil Procedure, § 198. The system of jury selection which Congress has adopted contemplated, therefore, that juries in the federal courts sitting in such States would be representative of both sexes. If women are excluded, only half of the available population is drawn upon for jury service. To put the

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matter another way, Congress has referred to state law merely to determine who is qualified to act as a juror. Whether the method of selecting a jury in the federal court from those qualified is or is not proper is a question of federal law.8 Glasser v. United States, supra, pp. 85-86.

In Thiel v. Southern Pacific Co., 328 U.S. 217, we were presented with a similar problem. It was a civil case which had been removed to the district court on the ground of diversity of citizenship and involved a question of the liability of a common carrier to a passenger. All persons who worked for a daily wage had been deliberately and intentionally excluded from the jury lists. We held, in the exercise of our power of supervision over the administration of justice in the federal courts, see McNabb v. United States, 318 U.S. 332, that the plaintiff's motion to strike the panel should have been granted. The gist of our ruling is contained in the following statement from the opinion in the Thiel case:

The American tradition of trial by jury, [67 S.Ct. 264] considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community. . . . This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political, and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective

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jurors shall...

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