Billingsley v. Clayton, 22304.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation359 F.2d 13
Docket NumberNo. 22304.,22304.
PartiesOrzell BILLINGSLEY, Sr., C. Herbert Oliver, J. S. Phifer and Abraham Woods, Jr., Appellants, v. George W. CLAYTON et al., Appellees.
Decision Date05 April 1966

Orzell Billingsley, Jr., Peter A. Hall, J. Mason Davis, Oscar W. Adams, Birmingham, Ala., Charles Morgan, Jr., Atlanta, Ga., Jack Greenberg, Norman Amaker, Melvin L. Wulf, New York City, for appellant.

Richmond M. Flowers, Atty. Gen., Leslie Hall, Asst. Atty. Gen., Montgomery, Ala., Burgin Hawkins, Birmingham, Ala., Earl C. Morgan, Circuit Sol., 10th Judicial Circuit of Alabama, Birmingham, Ala., for appellees.

John Doar, Asst. Atty. Gen., David L. Norman, Charles R. Nesson, Attys., Dept. of Justice, Washington, D. C., amici curiæ.

Before TUTTLE, Chief Judge, and BROWN, WISDOM, GEWIN, BELL, THORNBERRY and COLEMAN, Circuit Judges.

GEWIN, Circuit Judge:

This is a jury exclusion case, but not one of the usual type. Most of the cases dealing with the subject arise from a conviction in a serious criminal case in which it is claimed that the constitutional rights of a Negro defendant have been infringed because Negroes were systematically excluded from jury service. This is a civil proceeding.

The Negro plaintiffs (appellants) brought this class action against the three members and the cerk of the Jefferson County, Alabama Jury Board (appellees), claiming systematic exclusion of qualified Negroes from the jury rolls of Jefferson County.1 A preliminary injunction was sought but was denied after a hearing in the United States District Court for the Northern District of Alabama, such denial being without prejudice to the right to relief on final hearing. A further hearing was held, additional findings of fact and conclusions of law were entered, and relief was denied. The trial court found the existence of a disparity between the proportion of Negroes actually serving as jurors and the proportion of Negro Residents in the County, but concluded there was insufficient evidence to support a finding of improper conduct or constitutional wrongdoing on the part of appellees.

This is one of several cases relating to the problem of discriminatory exclusion from juries recently heard by this Court en banc. Various fact situations were presented, and both State and Federal cases were involved. This case deals with a state jury selection system. Several Attorneys General of the interested states filed briefs, and the United States filed briefs in each case as amicus curiae by invitation of the Court.2

Before outlining the facts which were presented at the trial, it is appropriate to discuss some of the legal principles and guidelines which have been developed by the numerous cases dealing with the subject, insofar as the same relate to the issues presented by this appeal.

A just and fair trial by an unbiased, unprejudiced and impartial tribunal is one of the great American constitutional principles. There can be no "due process" or "equal protection" unless that principle remains inviolate. Brown v. State of New Jersey, 175 U.S. 172, 175, 20 S.Ct. 77, 44 L.Ed. 119; Hayes v. State of Missouri, 120 U.S. 68, 71, 7 S.Ct. 350, 30 L.Ed. 578; Northern Pacific R. R. Co. v. Herbert, 116 U.S. 642, 646, 6 S.Ct. 590, 29 L.Ed. 755. There is no expressed constitutional provision as to the classes of persons entitled to render jury service, but the law does require that qualified persons not be excluded from jury service on a class basis. Systematic and purposeful exclusion of qualified persons cannot be reconciled with the American concept of an impartial trial. Prejudices against certain classes tend to affect the judgment of jurors and result in a denial to members of such classes the full and complete enjoyment of constitutional guarantees. Strauder v. State of West Virginia, 100 U.S. 303, 25 L.Ed. 664; Ex parte Virginia, 100 U.S. 339, 345, 25 L.Ed. 676; Fay v. People of State of New York, supra. It makes no difference whether the exclusion is the result of administrative action or legislative enactments. Both administrative and legislative exclusion are condemned. Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567. The applicable rules are aimed at eradicating bias, prejudice, unfairness and partiality.

The attack of the appellants in this case must be grounded upon proof that they and the class they represent have been the victims of improper discrimination and exclusion from jury service in the jury selection procedure. Fay v. People of State of New York, supra; Rawlins v. State of Georgia, 201 U.S. 638, 26 S.Ct. 560, 50 L.Ed. 899. If their proof establishes the existence of a purposeful and substantially effective effort on the part of the appellees to deprive the appellants and members of their class of a realistic opportunity to render jury service, they are entitled to relief.2a Brownfield v. State of South Carolina, 189 U.S. 426, 23 S.Ct. 513, 47 L.Ed. 882; Tarrance v. State of Florida, 188 U.S. 519, 23 S.Ct. 402, 47 L.Ed. 572; Bush v. Com. of Kentucky, 107 U.S. 110, 1 S.Ct. 625, 27 L.Ed. 354; Martin v. State of Texas, 200 U.S. 316, 26 S.Ct. 338, 50 L.Ed. 497; Thomas v. State of Texas, 212 U.S. 278, 29 S.Ct. 393, 53 L.Ed. 512; Akins v. State of Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692; Patton v. State of Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76; Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759.

Bias and prejudice are not easily inferred and tend to be expelled by proof of fair representation of members of the complaining class or group on the juries involved. For example, see Swain v. State of Alabama, supra; Akins v. State of Texas, supra; Thomas v. State of Texas, supra. Minimal representation of the group claimed to have been excluded from a particular jury roll in comparison with their proportion of the population is a proper element of proof, but such proof standing alone does not constitute sufficient evidence of constitutional violation if it is adequately explained and is not long continued. In the instant case the appellants allege an intention to exclude, and the burden is upon them to prove such intent; if proved, they would be entitled to relief on that ground. Brown v. Allen, supra; Smith v. State of Mississippi, 162 U.S. 592, 16 S.Ct. 900, 40 L.Ed. 1082; Tarrance v. State of Florida, supra; Fay v. People of State of New York, supra.

Notwithstanding the foregoing rules, the burden of proof is not insurmountable, though sometimes difficult. The difficulty arises out of the effort to prove sufficient facts to entitle the complaining parties to relief.2b For this reason, litigants are permitted to establish a prima facie case by proof of the objective results of the jury selection procedure. Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074; Pierre v. State of Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757; Smith v. State of Texas, supra; Patton v. State of Mississippi, supra; Hernandez v. State of Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866; Reece v. State of Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77; Arnold v. State of North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77. As aptly stated by the Supreme Court in Akins v. Texas, supra, 325 U.S. at 403, 65 S.Ct. at 1279:

"our directions that indictments be quashed when Negroes, although numerous in the community, were excluded from grand jury lists have been based on the theory that their continual exclusion indicated discrimination and not on the theory that racial groups must be recognized."

Token systematic inclusion of Negroes is only a facet of the overall problem of systematic exclusion; both are condemned by Federal and State cases.3 As stated in Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397: "Of course, token summoning of Negroes for jury service does not comply with equal protection, Smith v. State of Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84." See also Scott v. Walker (5 Cir. 1966) 358 F.2d 561; Whitus v. Balkcom, (5 Cir.) 333 F.2d 496, cert. den. 379 U.S. 931, 85 S.Ct. 329, 13 L.Ed.2d 343 (1964); Allen v. State, 110 Ga.App. 56, 137 S.E.2d 711 (1964); Harper v. Mississippi, 251 Miss. 699, 171 So.2d 129 (1965).

The aim and purpose of the law is to obtain juries which truly represent a cross-section of the community, but there is no constitutional requirement that such juries represent the proportional strength or exact percentage of the various components of the population. Swain v. State of Alabama, supra; Fay v. People of State of New York, supra; Cassell v. State of Texas, supra; Brown v. Allen, supra; Hoyt v. State of Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118; Scott v. Walker, supra. As stated in the Swain case, "Neither the jury roll nor the venire need be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group."

The appellants charge in their complaint that Negro citizens possessing all the requisite qualifications of jurors and none of the disqualifications have been and are now being arbitrarily, intentionally and systematically excluded from jury service in Jefferson County, Alabama. In addition, the complaint charges that the Negro appellants and all others similarly situated have been and are now being discriminated against in the organization of juries in Jefferson County solely on account of their race or color, and that the methods utilized in the selection of names of Negroes to be placed on the jury rolls and in the jury boxes by the appellee Board members is highly irregular, arbitrary and contrary to the Constitution and the laws of the State of Alabama and of the United States.

The prayer for relief seeks an injunction against appellees restraining them from failing or refusing to place the names of all qualified persons on the jury rolls and in the jury boxes in Jefferson County solely on account of...

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