Perkins v. Smith

• Decision Date: 28 January 1974
• Docket Number: No. 73-222-HM.,73-222-HM.
• Citation: 370 F. Supp. 134
• Parties: Lester L. PERKINS, D.V.M., Individually and/or for similarly situated persons and as a class action v. Howard SMITH, Clerk, Circuit Court for Montgomery County, et al.
• Court: U.S. District Court — District of Maryland

370 F. Supp. 134

Lester L. PERKINS, D.V.M., Individually and/or for similarly situated persons and as a class action v. Howard SMITH, Clerk, Circuit Court for Montgomery County, et al.

No. 73-222-HM.

United States District Court, D. Maryland.

January 28, 1974.

Edward L. Genn, Silver Spring, Md., for plaintiff.

Lawrence Ebner, Dept. of Justice, Washington, D. C., Thomas L. Crowe, Asst. U. S. Atty., Baltimore, Md., for defendants United States and Paul R. Schlitz; Harlington Wood, Jr., Asst. Atty. Gen., George Beall, U. S. Atty., Harland F. Leathers, Atty., Dept. of Justice, on brief.

Francis X. Pugh, Asst. Atty. Gen., for defendants State of Maryland, Howard Smith and Jury Commissioner; Francis B. Burch, Atty. Gen., on brief.

Alfred H. Carter, Deputy County Atty., for defendant Montgomery County; Richard S. McKernon, County Atty., Stephen J. Orens, Asst. County Atty., on brief.

Before WINTER, Circuit Judge, and WATKINS and MURRAY, District Judges.

HERBERT F. MURRAY, District Judge.

Plaintiff Lester L. Perkins, a resident alien, successfully asserted before a three-judge panel of this Court that the State of Maryland may not constitutionally bar him from being examined for or licensed as a doctor of veterinary medicine solely because of his alienage.¹ In the present case he has again invoked the jurisdiction of a three-judge court to challenge his exclusion from service in Maryland on grand and petit jury panels in the state and federal courts solely because of his alienage.

As originally brought, plaintiff sought to represent a class—aliens otherwise qualified who were willing to serve as jurors. At the argument, after the difficulties this would present were pointed out, counsel for plaintiff asked leave orally to amend the complaint by striking out the qualification relating to willingness. Leave to amend was granted. There are, however, grave doubts as to whether even as so limited, aliens would constitute a "cognizable group", since its composition would vary from day to day with immigration, emigration and naturalization; as distinguished from the recognized cognizable groups based on sex, religion, color and race.

Laws of the state and nation make clear that jurors must be citizens of the United States.² Plaintiff claims the statutes imposing this citizenship requirement for jurors deny to him and others like him equal protection of the laws comprehended in the guarantees of the Fifth and Fourteenth Amendments to the Constitution of the United States.

Plaintiff urges that it cannot be disputed that aliens are "persons" within the protection of the equal protection clause of the Fourteenth Amendment.³ He contends that distinctions based on alienage have been held to be invidious, suspect, and subject to close judicial scrutiny.⁴ Finally, he submits that no compelling state or federal interest justifies the disqualification of aliens as a class from jury service.

In support of these points, he places principal reliance on Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L. Ed.2d 534 (1971), which held that states could not exclude aliens from welfare benefits. Further, he cites two recent decisions handed down by the Supreme Court since the present suit was filed. Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853, and In Re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910. These cases, both decided on June 25, 1973, held that citizenship could not be made a prerequisite for holding a certain class of civil service employment in the State of New York (Sugarman) or for admission to the bar in the State of Connecticut (Griffiths).

Defendants make the argument that those cases which have extended constitutional protection to aliens have concerned not political but economic rights. Thus, in a long line of cases since 1915 the courts have considered as invalid state discriminations against aliens which tended to interfere with the means to a livelihood.⁵

Additionally, defendants contend that whether the test to sustain a restriction of jury service to citizens be "compelling state interest" or "rational basis", the federal and state statutes here involved can be sustained under either standard.⁶

Since the defendants are willing to measure the statutes here against either test, the Court need look only to whether the stricter standard of compelling interest has been satisfied, although, as said in Sugarman, supra, 413 U.S. p. 648, 93 S.Ct. p. 2850 (in connection with qualification for office) "our scrutiny will not be so demanding where we deal with matters resting firmly within a State's constitutional prerogatives." . . . in exclusions "from participation in its democratic political institutions."

In Carter v. Jury Commission, 396 U. S. 320, at page 332, 90 S.Ct. 518, at page 525, 24 L.Ed.2d 549 (1970), the Court stated:

The states remain free to confine the selection of jurors to citizens . . ..

While this was dictum, it was significant dictum since it represented a construction and limitation of the Court's specific holding. The language was that of a unanimous court of eight. Graham was decided one year later by the same eight Justices plus Mr. Justice Blackmun. No overruling of the Carter dictum is expressed or can be inferred.

Various reasons are advanced as upholding alien disqualification from jury service—that it is reasonable to limit such service to those who participate in and manifest an interest in the affairs of citizenship, that aliens as a class will be less qualified than citizens from the standpoint of familiarity with local laws, customs and language to fully understand the actions and motives of litigants, that aliens do not owe sole and permanent allegiance to the United States, and that jury service is a unique responsibility going to the heart of representative government and as such should be entrusted only to citizens.

Do the State of Maryland and the United States have a compelling interest in confining service on grand and petit juries to citizens?

In the view of this Court, both governments have such an interest. That interest in the final analysis is in assuring that those who make the ultimate factual decisions on issues of personal liberty and property rights under our system of justice be either native born or naturalized citizens, because it may fairly be concluded that as a class they are more likely to make informed and just decisions in such matters than are non citizens. Black's Law Dictionary defines an alien as "a person resident, in one country, but owing allegiance to another. . . . In the United States, one born out of the jurisdiction of the United States, and who has not been naturalized under their constitution and laws." On the other hand, a citizen is "One who, under the constitution and laws of the United States, or of a particular state, and by virtue of birth or naturalization within the jurisdiction, is a member of the political community, owing allegiance and being entitled to the enjoyment of full civil rights" (Emphasis supplied).

In Sugarman, supra, the Court found the particular New York Civil Service Law under review too broad and imprecise. Although rejecting a flat ban on the employment of aliens in positions with little if any relation to a State's legitimate interest, the Court went on to point out it was not holding that a State may not, in an appropriately defined class of positions, require citizenship as a qualification for office. Such power, the Court said

"inheres in the State by virtue of its obligation, already noted above, `to preserve the basic conception of a political community.' Dunn v. Blumstein, 405 U.S. 330, at 344, 92 S.Ct. 995 at 1004, 31 L.Ed.2d 274. And this power and responsibility of the State applies not only to the qualifications of voters, but also to persons holding state elective or important nonelective executive, legislative, and judicial positions, for officers who participate directly in the formulation, execution, or review of broad public policy perform functions that go to the heart of representative government. There, as Judge Lumbard phrased it in his separate concurrence, is `where citizenship bears some rational relationship to the special demands of the particular position.' 339 F.Supp 906, at 911."

This Court considers that grand and petit jurors in both state and federal courts are "persons holding . . . important nonelective . . . judicial positions", that they participate directly in the execution of the laws and "perform functions that go to the heart of representative government." Blackstone considered juries as "the best investigators of truth, and the surest guardians of public justice." The institution of jury trial, he said, "preserves in the hands of the people that share which they ought to have in the administration of public justice, and prevents the encroachments of the more powerful and wealthy citizens."⁷ In No. 83 of The Federalist, Alexander Hamilton, after referring to the "high estimation" in which he held the institution of jury trial, concluded that "it would be altogether superfluous to examine to what extent it deserves to be esteemed useful or essential in a representative republic, or how much more merit it may be entitled to as a defense against the oppressions of an hereditary monarch, than as a barrier to the tyranny of popular magistrates in a popular government. Discussions of this kind would be more curious than beneficial, as all are satisfied of the utility of the institution, and of its friendly aspect to liberty."⁸

It is not too much to conclude, therefore, that trial by jury is one of the chief underpinnings in the Anglo-Saxon system of justice, which in turn is one of the principal foundations of this nation. Juries at several levels make very difficult and essentially unreviewed determinations of fact. Grand juries decide which persons must answer to the state for alleged misdoings; petit juries resolve once and for...