506 F.2d 805 (5th Cir. 1975), 73-3732, Foster v. Sparks

Docket Nº:73-3732.
Citation:506 F.2d 805
Party Name:Catherine FOSTER et al., on behalf of themselves and all others similarly situated, plaintiffs-Appellants, v. James L. SPARKS et al., etc., Defendants-Appellees.
Case Date:January 20, 1975
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 805

506 F.2d 805 (5th Cir. 1975)

Catherine FOSTER et al., on behalf of themselves and all

others similarly situated, plaintiffs-Appellants,

v.

James L. SPARKS et al., etc., Defendants-Appellees.

No. 73-3732.

United States Court of Appeals, Fifth Circuit

January 20, 1975

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C. B. King, Herbert E. Phipps, Albany, Ga., Jack Greenberg, Charles S. Ralston, New York City, for plaintiffs-appellants.

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Jesse G. Bowles, Cuthbert, Ga., for defendants-appellees.

Appeal from the United States District

Appeal from the United States District Court for the Middle District of Georgia.

Before RIVES, GEWIN and GOLDBERG, Circuit Judges.

GOLDBERG, Circuit Judge:

On May 26, 1972, five named black and female adult citizens of Quitman County, Georgia, filed this class action in federal district court alleging that various organs of local government in their county, especially the grand and traverse (petit) juries, are so constituted as to discriminate against blacks and females, and that this unconstitutional composition has led to variegated injuries to plaintiffs and to the blacks and females whom they claim to represent. Plaintiffs asked for injunctive relief to end discrimination against black and female citizens of Quitman County with respect to the selection of grand and traverse jurors; plaintiffs also asked that the county board of education be reconstituted on a nondiscriminatory basis. After a hearing in July, 1973, the district court determined that since all the named plaintiffs were in fact on the traverse jury list, they were not members of the class they purported to represent and thus were not entitled to any relief. Accordingly, the district court dismissed the complaint on August 9, 1973. We reverse.

The statutory scheme of county government in Georgia provides that the judge of the state superior court for the circuit in which a county is located shall appoint a board of six jury commissioners, who shall be 'discreet persons.' Ga.Code Ann. 59-101. These jury commissioners compile a traverse jury list of 'intelligent and upright citizens of the county,' and from this list select 'the most experienced, intelligent, and upright persons' of 21 years of age and older for the grand jury list. Ga.Code Ann. 59-106 and 59-201. 1 Members of the traverse and grand juries are then chosen at random from these lists. In addition to the judicial duties with which grand juries ordinarily concern themselves, a Georgia grand jury also discharges important administrative functions. For example, it is charged with the inspection of county roads and public buildings, Ga.Code ann. 59-314 and 59-315, and it appoints the members of the county board of education. Ga.Const. Art. VIII, V, P I, Ga.Code Ann. 2-6801.

According to the 1970 census, there were 1313 citizens in Quitman County of 18 years of age or older, of whom 673 (51%) were black and 712 (54%) were female. On February 13, 1973, however, the Quitman County Jury Commission comprised six white males. Of the 173

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persons on the grand jury list, only 31 (18%) were black and 13 (8%) were female. The traverse jury list contained the names of 552 persons, 134 (24%) of whom were black and 238 (43%) of whom were female. This state of affairs created a question in plaintiffs' minds as to whether something was rotten in the County of Quitman. Plaintiffs thereupon brought this class action on behalf of themselves and all blacks and females 'who are . . . qualified . . . for services on grand and traverse juries,' to ensure that blacks and females are fairly represented in the instruments of their county government.

Shortly after plaintiffs commenced their action, changes began to occur in Quitman County. Two white males retired from the Jury Commission and were replaced by another white male and a black male. The Jury Commission composed supplemental grand and traverse jury lists: of 297 persons on the new grand jury list, 109 (37%) were black and 83 (28%) were female; the revised traverse jury list contained the names of 738 citizens, including 255 (35%) blacks and 360 (49%) females. In late December, 1973, yet another revision of the jury lists was made, but the results of that action do not appear in the record.

In summary, black and female citizens in Quitman County have long been greatly underrepresented in the organs of county government. Plaintiffs contend that this underrepresentation is unconstitutional and that the result of this illegality has been discrimination against blacks and females in many areas of endeavor regulated by county authorities, particularly in the area of public education. Although the publication of these conditions cannot have been a revelation to the powers that be in Quitman County, this lawsuit has triggered significant changes in the composition of county government. The precise extent and significance of those changes will be determined by the district court on remand, if that court finds that this lawsuit can go forward as a class action.

I

Rule 23(a) of the Federal Rules of Civil Procedure provides that:

One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is no numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

Although the determination of the propriety of a class action is ordinarily a matter within the sound discretion of the trial court, Johnson v. Georgia Highway Express, Inc., 5 Cir. 1969, 417 F.2d 1122, we believe that the district court erred in dismissing this lawsuit. The district court acted on the theory that since all of the named plaintiffs were actually on the traverse jury list, they could not complain of injury and were not members of the proposed class. Perhaps because the language of the complaint was less clear than it might have been, the district court was under the impression that the plaintiffs wanted only to be considered for the grand and traverse jury lists without discrimination as to race or sex, and reasoned that since plaintiffs had been selected for the traverse jury rolls, they had suffered no injury. In fact, the named plaintiffs were not on the grand jury list and were certainly aggrieved in that respect. What is of more import is the fact that the thrust of plaintiffs' complaint is not that they have been injured because they have been excluded as individuals from the grand or traverse jury lists because of race or sex discrimination. Rather, they contend that blacks as a class and females as a class have been systematically excluded from participation in the government of Quitman County, and that these class exclusions have skewed public actions in the county in a manner unfavorable to blacks and females. Plaintiffs would derive little comfort

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from personal participation in county government if the selection process were such as to ensure that they could participate only as token blacks and females in unconstitutionally unrepresentative white, male institutions.

Plaintiffs' complaint is clearly an attack on an alleged systematic discrimination against blacks and females in the selection of names for grand and traverse jury lists in Quitman County, a discrimination that is all the more pernicious because of the primacy of the grand jury in Georgia county government. Plaintiffs in such a class action may represent all individuals who suffer from systematic discrimination, and not just those individuals who may have endured the specific injury inflicted upon the named plaintiffs. Potts v. Flax, 5 Cir. 1963, 313 F.2d 284. For example, in Johnson v. Georgia Highway Express, Inc., supra, this Court determined that a black man allegedly discharged as a result of discriminatory employment practices could represent a class of all blacks who had been discriminated against by the defendant employer, and not just those blacks who had been discharged illegally. We recently encountered a somewhat analogous situation in Long v. Sapp, 5 Cir. 1974, 502 F.2d 34, and found that although the black, female plaintiff there had been discharged in a lawful manner, that circumstance was no bar to her status as a proper representative in a class action on behalf of all blacks and females victimized by allegedly discriminatory employment practices.

Plaintiffs here are certainly members of the class they purport to represent, and the record seems to indicate that they are proper representatives of the class, that plaintiffs possess 'the nexus with the class and its interests and claims which is embraced in the various requirements of (Rule) 23(a) and (b).' Huff v. N.D. Cass Company, 5 Cir. 1973 (en banc), 485 F.2d 710, 714. Since the district court stopped on the threshold of Rule 23, however, we remand the case to that court for a determination as to whether plaintiffs' claims are typical of the claims of the class, and whether the plaintiffs will fairly and adequately protect the interests of the class.

II

Since 1875, the criminal laws of the United States have provided that:

No citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude; and whoever, being an officer or other person charged with any duty in the selection or summoning of jurors, excludes or fails to summon any citizen for such cause, shall be fined not more than $5,000. 18 U.S.C. 243.

The reason for this longstanding concern that juries be selected without invidious discrimination was succinctly stated by the United States Supreme Court in...

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