Simmons v. Jones, 71-1092.

• Decision Date: 14 May 1973
• Docket Number: No. 71-1092.,71-1092.
• Citation: 478 F.2d 321
• Parties: Robert W. SIMMONS, Plaintiff-Appellee, v. W. M. JONES and Ernest Walker et al., Jury Commissioners for Long County, Georgia, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

478 F.2d 321 (1973)

Robert W. SIMMONS, Plaintiff-Appellee, v. W. M. JONES and Ernest Walker et al., Jury Commissioners for Long County, Georgia, Defendants-Appellants.

No. 71-1092.

United States Court of Appeals, Fifth Circuit.

May 14, 1973.

R. L. Dawson, Richard D. Phillips, Ludowici, Ga., for defendants-appellants.

Frank W. Seiler, Walter C. Hartridge, II, Charles H. Wessels, Savannah, Ga., for plaintiff-appellee.

Before GODBOLD, SIMPSON and CLARK, Circuit Judges.

SIMPSON, Circuit Judge:

Robert W. Simmons, the defendant in a pending state court damage action, brought this suit in the federal district court below to compel the jury commissioners of Long County, Georgia, to perform their official duties in accordance with Section 59-106, Georgia Code Annotated.¹ The court below, after a non-jury trial, ordered the defendants to recompile the Long County list of traverse jurors and to accomplish such a recompilation in partial disregard of the provisions of Section 59-112 of the Georgia Code.² We have concluded that the district court improperly intervened in the administration of Georgia's juror selection system in this case. For the reasons given below, the judgment of the lower court is reversed and remanded with direction to dismiss the complaint.

THE FACTS

The plaintiff-appellee is a white male resident of Long County, Georgia. On February 17, 1967, Simmons was involved in an automobile collision in Long County with J. Clyde Gordon, likewise a white male resident of Long County. Gordon brought suit against Simmons for damages in the Superior Court for Long County. When the case was called for trial, Simmons attacked the constitutionality of a state law of local application governing the selection of jury commissioners. His challenge to the array was denied by the trial judge, who then continued the case and signed a certificate for immediate review. While the matter was pending before the Supreme Court of Georgia, that state's legislature repealed the local law (Georgia Laws, 1970, pp. 10-12), thereby making the general juror selection statutes applicable to Long County. As a consequence of the legislature's action, the Supreme Court of Georgia dismissed the appeal from the Long County Superior Court on the ground of mootness. Simmons v. Gordon, 1970, 226 Ga. 162, 173 S.E.2d 223.

The state damage action was rescheduled for trial at the August, 1970, term of the Long County Superior Court. Before the case was reached, Simmons, on August 13, 1970, filed his complaint in the United States District Court for the Southern District of Georgia, naming the Long County jury commissioners as defendants and praying for relief from the manner in which Sections 59-106 and 59-112, Georgia Code Annotated, were allegedly being administered within that county.

THE COMPLAINT

Invoking the jurisdiction of the district court under 28 U.S.C. Secs. 1343(3), 1343(4), 2201, and 2202; 42 U.S.C. Secs. 1983 and 1988; and the Fourteenth Amendment to the United States Constitution (equal protection and due process clauses), the complaint charged:

8. Despite the clear mandate of Ga.Code Ann. § 59-106 to select as a jury a representative cross-section of the intelligent and upright citizens of the county from the registered voters\' list which was used in the last preceding general election and to supplement such list as necessary by going out into the county and personally acquainting themselves with other citizens of the county, including intelligent and upright citizens of any significantly identifiable group in the county, the Jury Commissioners of Long County assembled a traverse jury box for the August Term of Long County Superior Court and any subsequent adjourned term thereof containing the names of only 420 persons. These said 420 persons comprise only 15 1/2% of the registered voters in Long County, Georgia.

9. The Jury Commissioners of Long County have failed to inquire into the eligibility of 84 1/2% of the registered voters of Long County to serve as jurors in order to comply with the statutes to insure that the jury list is fairly representative of a cross-section of the county\'s intelligent and upright citizens. Moreover, the Jury Commissioners have eliminated from consideration for jury service a substantial percentage of the population of the entire County of Long.

10. In composing the list of jurors, defendants did not, pursuant to Georgia Code § 59-106, employ the official registered voters\' list used in the last preceding general election. This is demonstrated by the fact that persons whose names appear on the list of jurors do not appear on the applicable voters\' lists. Moreover, the names of persons listed as jurors appear in a large number of instances on the jury list in a different form than the form in which said names appear on the applicable voters\' list. Evidence in support of these allegations is supplied in the form of the affidavits of Eugene S. Caison and Joseph M. Murray which are attached hereto and made a part hereof as Exhibits 1 and 2, respectively.

11. Plaintiff avers on information and belief that it is not possible to have a civil action fairly tried in Long County because for at least the past eight years, no verdict in any case tried in Long County has ever been returned in an amount substantially less than the amount of damages sought in petitions and complaints filed by Ralph Dawson or his nephew, Richard Dawson Phillips, or either or both of them.

12. Plaintiff\'s counsel have prepared an affidavit which is attached hereto and made a part hereof as Exhibit 3 stating their experience in Long County, Georgia. Plaintiff\'s counsel can recall no instances in which a jury verdict was ever returned for substantially less than the full amount sought. Plaintiff\'s counsel has obtained from a number of practitioners throughout South Georgia affidavits setting forth their experiences in Long County, Georgia, which experiences are identical to that of plaintiff\'s counsel. These affidavits are attached hereto and made a part hereof as Exhibits 4 through 8.

13. Plaintiff alleges as a result of defendants\' conduct he has been placed in imminent danger of being deprived of his property without due process of law.

14. Unless this Court, exercising equitable powers, restrains the aforesaid illegal and unconstitutional application of Ga.Code Ann. § 59-106, defendant will be deprived of his property without due process of law at the August Term of the Superior Court of Long County, Georgia, which commences on Monday, August 17, 1970.

The complaint concluded with prayers for the following relief:

(a) An injunction barring the prosecution of all jury actions, civil and criminal, in Long County until elimination of the allegedly unconstitutional method of selecting traverse jurors;

(b) A declaration that the method utilized by the defendants in selecting traverse jurors is unconstitutional, null and void;

(c) An order requiring the defendants to carry out the provisions of Section 59-106, Georgia Code Annotated, in a manner which will guarantee the protection of all the constitutional rights of litigants in Long County, Georgia;

(d) An order directing the United States Marshal to impound the Long County voters\' and jurors\' lists for the purpose of copying at Savannah, Georgia; and

(e) An order directing the defendants to show cause why they should not be compelled to comply with the provisions of Section 59-106 and the United States Constitution.

On August 14, 1970, the district court ordered the United States Marshal to impound the voters' and jurors' lists of Long County for the purpose of copying at Savannah, Georgia, and ordered the defendants to show cause why the relief sought in the complaint should not be granted. The district court declined to enjoin the prosecution of all jury actions in Long County. It appears, however, that the Judge of the Atlantic Circuit, State of Georgia, (which includes Long County) has honored the district court's informal request that all jury proceedings pending in Long County be held in abeyance pending the adjudication of the constitutional issues in the federal court.

THE ANSWER

The defendants appeared and answered the complaint through their counsel, Ralph L. Dawson and Richard Dawson Phillips, both of Ludowici, Georgia, the county seat of Long County. They asserted that the complaint failed to state a claim upon which relief against the defendants could be granted. In addition, the defendants denied plaintiff's allegations that the Long County jury commissioners had failed to comply with the provisions of Section 59-106, Georgia Code Annotated, in the selection of traverse jurors for the August, 1970, term of the Long County Superior Court.

THE DECISION BELOW

Following a trial on the merits, the lower court found for the plaintiff. Simmons v. Jones, S.D.Ga. 1970, 317 F. Supp. 397. The district court determined that the plaintiff had a federal constitutional right to a state court civil trial "before a jury drawn from a list constituting a fairly representative cross-section of the community." 317 F.Supp. at 403. It then found that the defendants in selecting the Long County traverse jurors had deprived plaintiff of that right:

"I hold that the jury list in Long County as presently composed falls short of constitutional requirements.

The practice of putting the names of several members of the same family in the box (though ordinarily permissible) tends in the case of a small county to unduly weight the rights and power of that group of jurors. The over representation in the class of office holders, public employees and persons above sixty-five years of age dilutes the rights of persons eligible for jury duty but who are not on the list." 317 F.Supp. at 404.

The district court discounted the possibility of the plaintiff obtaining meaningful relief from the courts of the State of Georgia:

"As I earlier pointed out, efforts to obtain relief

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