Berry v. Cooper, 76-3682

• Decision Date: 31 July 1978
• Docket Number: No. 76-3682,76-3682
• Parties: Dr. H. W. BERRY et al., Plaintiffs-Appellants, v. James M. COOPER et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 322

577 F.2d 322

Dr. H. W. BERRY et al., Plaintiffs-Appellants, v. James M. COOPER et al., Defendants-Appellees.

No. 76-3682.

United States Court of Appeals, Fifth Circuit.

July 31, 1978.

Laughlin McDonald, Neil Bradley, H. Christopher Coates, ACLU Foundation, Inc., Atlanta, Ga., for plaintiffs-appellants.

Sampson M. Culpepper, Jr., Fort Valley, Ga., Walker P. Johnson, Jr., Dist. Atty., Macon Judicial Circuit, Bibb County, Macon, Ga., for defendants-appellees.

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

Before BROWN, Chief Judge, THORNBERRY and MORGAN, Circuit Judges.

JOHN R. BROWN, Chief Judge:

This case, and the case of Porter v. Freeman, ¹ also decided today, are class actions alleging discrimination in the selection of persons to serve on grand and petit juries. While the targets of the discrimination differ the plaintiff class in Dr. Berry alleges racial discrimination while the plaintiff class in Porter claims discrimination on the basis of sex and the Georgia statutory selection method involved in Dr. Berry is not identical to the Alabama procedure used in Porter, the two cases raise essentially the same question: once it is recognized that the jury lists have been compiled in a discriminatory manner, what remedial measures are necessary to meet the constitutional command that a jury be drawn from a fairly representative cross-section of the community? ² In both suits, the District Court Judges found that the defendant jury commissioners' revisions of the jury lists were sufficient to meet constitutional and statutory requirements. For the reasons that follow, we hold that in both cases the steps taken to remedy the discrimination were inadequate. We therefore reverse and remand.

We approach both cases from the premise that there is a distinction between proving discrimination by race or sex in the first instance and measuring the adequacy of a remedy for such discrimination once it has been found to exist. ³ In Dr. Berry, the District Court Judge recognized at the initial hearing that the jury lists were unconstitutionally composed; in Porter, the defendants revised the jury lists shortly after the complaint was filed to increase the number of women and blacks. Once discrimination is recognized to exist, the District Court has "not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future." Carter v. Jury Comm'n of Greene County, 1970, 396 U.S. 320, 340, 90 S.Ct. 518, 529, 24 L.Ed.2d 549, 563 (emphasis added), quoting Louisiana v. United States, 1965, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709. The Judge in Dr. Berry acted under this duty when he ordered the preparation of new and better lists. However, this duty also sets the standard by which the adequacy of the recompiled lists is to be measured the elimination of the discriminatory disparities as far as possible. We hold that in approving the recompiled lists, the District Court Judges confused the initial proof of discrimination with the adequacy of the remedy for such discrimination. Accordingly, we reverse and remand for the defendants to compile jury lists that will adequately remedy the discrimination that has tainted the lists in the past.

I.

On May 27, 1976, black and female residents of Peach County, Georgia filed suit against the county jury commissioners, claiming that they had been prevented from serving as jurors because of their race or sex. ⁴ The plaintiffs sought to have the District Court declare that the lists of grand and traverse (petit) jurors were unconstitutionally composed, to enjoin their continued use, and to order new lists prepared. ⁵ On June 1, 1976, the District Court Judge held a hearing to determine whether a preliminary injunction should issue. At this hearing, the defendants presented an order signed by Judges Bell and Morgan of the Superior Court for Peach County, Georgia. Stating that "the (Superior) Court finds as a matter of fact that both (the grand and traverse) Jury boxes are unconstitutionally constituted in that there is under representation of black . . . and female citizens in the Grand Jury box and black citizens in the Traverse Jury box," the state judges ordered that use of the boxes to select jurors be discontinued and that new boxes be prepared. The Superior Court specified the procedures to be followed in preparing the new boxes:

in making up these jury boxes the Jury Commissioners shall use the method of questionnaires to prospective jurors and shall use the responses to these questionnaires and the said Commissioners shall further be guided by the Statutes of the State of Georgia governing their duties as well as guidance set out in State and Federal cases on the subject of composition of Jury Boxes.

(R., vol. I, at 15-16). ⁶ On June 1, the District Court ordered the defendants to comply with the state judges' order and compile a new jury list.

The jury commissioners prepared new lists and presented them to the District Court with reports detailing the procedures followed and the resulting racial composition of the jury boxes. On August 27, 1976 the Court approved the revised jury lists and dissolved the injunctions. The Court found no merit to the plaintiffs' objections that blacks continued to be underrepresented and that the new lists were inadequate to eliminate the present effects of past racial discrimination. The plaintiffs press these objections on appeal.

II. The Jury Boxes: Before And After

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 six "discreet persons" to serve as jury commissioners. Ga.Code Ann. § 59-101. ⁷ Using the voters' list as the major source of names, the commissioners compile a traverse jury list of "intelligent and upright citizens of the county," supplementing the source only if the resulting jury list is "not a fairly representative cross-section." From the traverse list, the commissioners then select "a sufficient number of the most experienced, intelligent and upright citizens, not exceeding two-fifths of the whole number" who are 21 years of age and older for the grand jury list. Ga.Code Ann. §§ 59-106, 59-201. ⁸ Grand and traverse jurors are then selected at random from these lists.

The plaintiffs bottomed their complaint on the disparity between the number of blacks summoned to jury duty and the number of blacks eligible to serve as jurors in the county population. According to the 1970 census, there were 10,042 citizens in Peach County 18 years of age or older, of whom 5,567 (55.4%) were black, and 8,439 citizens of 21 years of age or older (i. e., eligible to serve on a grand jury), of whom 4,220 (50%) were black. From August 1974 to March 1976, 187 persons were summoned for grand jury service; of these, 29, or 15.5%, were black. During this same period, 1,247 persons were summoned for traverse jury service; of these, approximately 195, or 15.6%, were black. On the basis of these figures, the Superior Court and the District Court found that blacks were so underrepresented as to make the jury lists unconstitutional, and ordered that new lists be compiled.

In revising the jury lists, the commissioners sent questionnaires, a letter urging prompt return of the form, and a preaddressed envelope to all citizens registered to vote in Peach County in the May 5, 1976 presidential preference primary. Of the 9,218 questionnaires sent, 4,378 were addressed to black voters (48.17%). Only 4,827 questionnaires were completed and returned to the commissioners. The defendants traced the fate of the questionnaires in their report to the District Court. ⁹ 1,879 were returned by the Post Office marked "undeliverable" or "addressee unknown." Of this number, 1,230, or 65%, had been sent to black voters. 2,545 were delivered by the Post Office but not returned to the commissioners; of these, 1,378 or 54% were originally addressed to black voters. From the 4,827 questionnaires completed and returned, the defendants eliminated 1,701 as statutorily unfit or exempt from jury service, ¹⁰ of whom 592, or 35%, were black. Of the 3,142 on the "reduced" list, 1,180, or 37.6% were black. From this list, the commissioners selected every third numbered juror questionnaire and then every fourth numbered questionnaire until 2,344 names were chosen; these named comprised the traverse jury list. From this list, the 223 persons viewed as the most intelligent and upright were culled for the grand jury list. The resulting traverse list contained the names of 896 black registered voters, or 38.1% of the list; the grand jury list included 92 black names, or 41.2% of the list.

The plaintiffs compare the percentage of black residents in the county of an age to serve as jurors (55.4% aged 18 and over, 50% of an age of 21 and over) with the percentage of blacks on the jury lists (38.1% of the traverse jury list and 41.2% of the grand jury list). Under the method of comparison used in most of the cases in this Circuit, there is in this county a 17.34% differential between blacks in the voting age population and blacks on the traverse list, and an 8.8% differential on the grand jury list. Under a different measure, blacks are underrepresented by 31.28% on the traverse list and 17.60% on the grand jury list. ¹¹

The defendants remind us that the Constitution does not require a precise conformity between a jury list and the proportionate strength of each identifiable group in the community, see Swain v. Alabama, 1964, 380 U.S. 202, 208, 85 S.Ct. 824, 13 L.Ed.2d 759, and argue that these disparities are within ranges of deviation found acceptable by the Supreme Court and this Court. ¹² But the plaintiffs do not ask us to hold that the remaining disparities are sufficiently substantial to create a prima facie case...