Waller v. Butkovich
| Decision Date | 04 September 1984 |
| Docket Number | Civ. A. No. 80-605-G. |
| Court | U.S. District Court — Middle District of North Carolina |
| Parties | James WALLER, et al., Plaintiffs, v. Bernard BUTKOVICH, et al., Defendants. |
COPYRIGHT MATERIAL OMITTED
P. Lewis Pitts, Jr., Greensboro, N.C., Carolyn McAllaster, Durham, N.C., Dan Sheehan, Washington, D.C., Stewart Kwoh, Legal Alliance for G'bo Justice, Kwoh & Ono, Los Angeles, Cal., Flint Taylor, Michael Deutsch; People's Law Office, Chicago, Ill., Jim McNamara, Columbus, Ohio, Burt Neuborne, Amer. Civ. Liberties, New York City, for plaintiffs.
Virgil Griffin, David Wayne Matthews, Lawrence Gene Morgan, Edward W. Dawson, Rayford Milano Caudle, Jack Wilson Fowler, Jr., Harold Covington, Gorrell Pierce, Mark Sherer, Coleman Blair Pridmore, Lisford Carl Nappier, Sr., Jerry Paul Smith, Michael Eugene Clinton, Roy Clinton Toney, Roland Wayne Wood, Claude Matthew McBride Jr., pro se.
Charles E. Nichols, Fred T. Hamlet, Kenneth Kyre, Jr., Jesse L. Warren, City Atty., Greensboro, N.C., R. Joseph Sher, Asst. Director Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C., Kenneth W. McAllister, U.S. Atty., Greensboro, N.C., for defendants.
Plaintiffs have applied to the Court for permission to appeal, pursuant to 28 U.S.C. § 1292(b), this Court's order of July 11, 1984. That order denied plaintiffs' motion to stay trial proceedings in this case. Plaintiffs based their motion to stay on the grounds that the jury plan now in effect in the Middle District of North Carolina substantially underrepresents black people in the district.
In addition to plaintiffs' materials, two amicus briefs have been submitted in support of the plaintiffs' application. A number of organizations and individuals have joined in each brief.1 Pending before the Court are motions by these groups for permission to file the two already-submitted amicus briefs. The Court will direct the filing of the briefs in support of the application.
The Court has carefully considered plaintiffs' application, their supporting memorandum, and the briefs of amici. It has also reviewed plaintiffs' memorandum in support of their prior motion to stay the trial proceedings. In addition, the Court has considered more recent data about the proportion in the various stages of the jury selection process. Having thoroughly considered the relevant facts, statutes, and case law, the Court must deny plaintiffs' application for the reasons stated below.
Plaintiffs filed a motion to stay the trial proceedings (hereinafter "Motion to Stay"), pursuant to 28 U.S.C. § 1867(c), on July 2, 1984. They complained in their motion that the jury selection plan for the Middle District of North Carolina impermissibly underrepresents black people; thus, they sought the modification of the current jury selection plan to correct for the alleged underrepresentation prior to the selection of a petit jury in this case. The legal basis for plaintiffs' claims was primarily two sections of the Jury Selection and Service Act, codified at 28 U.S.C. §§ 1861, 1982. Although plaintiffs also alluded to the due process clause of the Fifth Amendment and the trial-by-jury clause of the Seventh Amendment in their motion, see Motion to Stay, ¶ 9, their memorandum addressed itself exclusively to their Jury Selection and Service Act claim.
Plaintiffs' memorandum presented various statistics to describe the extent to which black people are underrepresented in the Middle District's jury selection process. Their statistics were based on a study conducted by Dr. John Ruoff, whose research specialties include advanced work in demography. His study relied on three sources: the U.S. Census (for the racial composition of the voting-aged population of the Middle District); a 1980 report on registration statistics prepared by the Executive Secretary-Director of the North Carolina State Board of Elections (for the racial composition of voter registration lists in the Middle District); and the Court's JS-12 report dated December 31, 1981 (for the racial composition of potential jurors).
Plaintiffs have presented statistics about the proportion of non-whites in various phases of the juror selection process in order to compare those proportions with the proportion of non-whites in the population who are age-eligible to vote. A brief description of the relevant phases of the Middle District's plan helps to place these statistics in context. This description is based on the Middle District's "Plan for Random Selection of Jurors," approved by the Reviewing Panel on January 29, 1981, amended February 14, 1983 (the "Jury Plan"). See APPENDIX "A." At least once every four years, the District's Clerk compiles a "master jury wheel" from voter registration lists maintained by each of the counties in the Middle District. See Jury Plan at (VI)(A)(3). Those voter lists are the official records of persons registered to vote in the most recent national general election. See id. at (V)(B). Because the four-year periods commenced in January, 1981, the most recent national general elections will ordinarily be presidential elections. The master jury wheel must include at least one-half of one percent of all voters on the lists. The Clerk selects names from the voter lists for the master jury wheel according to a method designed to ensure randomness. See id. at (VI)(B).
From the master jury wheel, the Clerk generates a "qualified jury wheel" periodically, when directed by the Court. See Jury Plan at (VI)(C)(1). The Clerk first mails out questionnaires to names selected at random from the master jury wheel. See id. at (VI)(C)(1). The Clerk then reviews the returned questionnaires, culling out people who are unqualified, exempted, or excused. See id. at (VII)(A). The remaining names constitute the qualified jury wheel. The qualified jury wheel currently in use in the Middle District was generated at least as recently as June, 1983. See Memorandum, from J.P. Creekmore (Clerk), to Chief Judge Hiram H. Ward (August 17, 1983) (APPENDIX "B").
According to Dr. Ruoff's study, 19.87% of the population that is age-eligible to vote (hereinafter the "age-eligible population") of the Middle District is "non-white." The proportion of the registered voters in the Middle District that was non-white as of April 8, 1980 was 15.88%. In addition, 14.88% of the sample of registered voters selected on July 6, 1981 from the master jury wheel to whom questionnaires were sent was non-white. Finally, 13.60% of the qualified jury wheel, as of December 31, 1981, was non-white.
Plaintiffs provided other statistics from the Ruoff study as well, concerning absolute disparities, comparative disparities, and standard deviations.2 Table A, below, shows some of the most significant statistics that plaintiffs use in their argument for impermissible underrepresentation.
---------------------------------------------------------------------------------------------------------------------
TABLE A
Plaintiffs' statistics concerning disparities in the Middle District of North Carolina
between the percentage of non-whites who are age-eligible to vote and the percentage
of non-whites at various stages of the jury selection process (1981)
Total % of
Number of Non-Whites
People in in
Level of Level of Level of Absolute Comparative Standard
Analysis Analysis Analysis Disparity Disparity Deviations
People who are
age-eligible to
vote: 1,347,097 19.87% -- -- --
People who are
registered voters: 856,126 15.88% -3.99% -20.07% 92.49
People who were
mailed jury questionnaires: 3,341 14.88% -4.99% -25.13% 7.23
People who were
on qualified jury
wheel: 2,250 13.60% -6.27% -31.55% 7.45
---------------------------------------------------------------------------------------------------------------------
The plaintiffs also briefly discussed, in their Memorandum Supporting the Motion to Stay, two facts relating to discrimination against blacks in North Carolina in the voter registration process. First, plaintiffs referred to findings by a three-judge district court in Gingles v. Edmisten, 590 F.Supp. 345 (E.D.N.C.1984), appeal pending. The three-judge court in Gingles set aside portions of North Carolina's legislative reapportionment on the basis of Section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973. The Court also made express findings of past discrimination and its continuing effects in the form of relatively depressed levels of black voter registration, with respect to two of the twenty-four counties in the Middle District. Second, plaintiffs note that seven other counties in the Middle District are designated for coverage under Section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c, "because of their use of discriminatory literary tests for voting and their continuing low levels of voter registration or voter turnout." Memorandum in Support of Motion to Stay, at 9. The plaintiffs do not appear to claim that intentional discrimination against blacks in voter registration continues.3 In any event, plaintiffs did not focus on supporting a claim of intentional discrimination, past or present; and little if any of their legal argument is based on such claims.
In a two-page order, this Court, on July 11, 1984, denied plaintiffs' Motion to Stay. On August 7, plaintiffs filed the instant application for permission to appeal the order.
In order to better evaluate...
To continue reading
Request your trial
-
People v. Bell, S004260
...439 U.S. at p. 368, fn. 26, 99 S.Ct. at p. 670, fn. 26; McCray v. Abrams (2d Cir.1984) 750 F.2d 1113, 1131-1132; Waller v. Butkovich (M.D.N.C.1984) 593 F.Supp. 942, 949.) As I have stated, he need only prove that a cognizable group is being systematically The Duren case itself highlights th......
-
People v. Sanders
...782, 679 P.2d 433 [Mosk, J., dis.]; see also United States v. Underwood (N.D.Ala.1985) 617 F.Supp. 713, 716; Waller v. Butkovich (M.D.N.C.1984) 593 F.Supp. 942, 958.)8 The trial court apparently denied defendant's motion to quash because his supporting evidence failed to take account of the......
-
State v. McCarthy
...U.S. 925, 95 S.Ct. 1119, 43 L.Ed.2d 394 (1975); United States v. Facchiano, 500 F.Supp. 896 (S.D.Fla.1980); see also Waller v. Butkovich, 593 F.Supp. 942 (M.D.N.C.1984). 6 Using this common sense approach, we recently determined that one less Hispanic on every other eighteen member grand ju......
-
U.S. v. Cecil
...with intimate acquaintance with the population involved and with the constitutional and statutory requirements. In Waller v. Butkovich, 593 F.Supp. 942, 958 (M.D.N.C.1984), Judge Merhige, sitting by designation, said in connection with such an approval of a jury selection plan that "[w]hile......