Broadway v. Culpepper, 29391.

• Decision Date: 31 March 1971
• Docket Number: No. 29391.,29391.
• Citation: 439 F.2d 1253
• Parties: Carl BROADWAY et al., Plaintiffs-Appellants, United States of America, Plaintiff-Intervenor-Appellant, v. Robert CULPEPPER, Jr., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

439 F.2d 1253 (1971)

Carl BROADWAY et al., Plaintiffs-Appellants United States of America, Plaintiff-Intervenor-Appellant, v. Robert CULPEPPER, Jr., et al., Defendants-Appellees.

No. 29391.

United States Court of Appeals, Fifth Circuit.

March 3, 1971.

Rehearing Denied March 31, 1971.

Walker P. Johnson, Jr., U. S. Atty., Macon, Ga., for the United States.

C. B. King, Albany, Ga., Norman Amaker, Jack Greenberg, New York City, Fletcher Farrington, Walter Gorman, Attys., U. S. Dept. of Justice, Washington, D. C., for plaintiffs-appellants.

Frank S. Twitty, Camilla, Ga., L. Earl Jones, Newton, Ga., for defendants-appellees.

Before JOHN R. BROWN, Chief Judge, DYER and INGRAHAM, Circuit Judges.

JOHN R. BROWN, Chief Judge:

In this class action against the jury commissioners of Baker County, Georgia, the Negro residents claimed that members of their race have been systematically excluded from jury service in that county and seek injunctive relief.

After considerable success — impelled in no small measure by a combination of the intervening order of the District Court, the 1967 revision of the Georgia Code, and the operation of the Voter Rights Act of 1965 — the plaintiffs and intervenor appeal. Basically the contention is that there is too wide a disparity¹ between the demographic patterns in the county (52 Negro, 48% white) and the relative percentages of each on the voter registration list (37% Negro, 63% white). If the voter list produces a jury list showing substantial disparity with the voter list, the Constitution and the Georgia law² require that the jury list be supplemented by other sources. Here the jury list shows substantially the same percentages as the voter list, and this raises questions whether in the Swain³ sense, the disparity between demographic pattern (48% white, 52% Negro) and the jury list (66% white, 34% Negro) is tolerable. We do not reach that question as such. We vacate the denial of relief and remand for proper determination on an up-to-date record.

Not with the purpose of disparaging either Court or counsel, the chronology of this case has a direct bearing on the remedy we employ. The suit was filed in 1966 complaining of the existing situation. The Government intervened⁴ in June 1967, and an evidentiary hearing was held in October 1968. That hearing concerned itself with the adequacy of the 1967 jury list. On May 6, 1969 the Court by interim decree found the jury list to be constitutionally unacceptable and ordered the jury commissioners to abandon the current list and draw up and present a new jury list "in strict accordance with the law of Georgia and the federal constitutional mandate." Recognizing that the commissioners were then likely engaged in the preparation of the 1969 jury list — now 3 years and 2 lists away from suit filing — the decree provided that the forthcoming commissioners' list would suffice if it accomplished what was "required by this decree in regard to the compiling of a new list" and to that end it prescribed that "an affirmative and documented showing of such fact must be made forthwith to the Court."⁵ On motion of the Government and plaintiffs, an evidentiary hearing was held in October 1969 and a decree declining to compel further revisions was entered December 15, 1969.

Thus we get a 1966 case, expanded into a 1967 case, then a 1969 case in 1970 for disposition now in 1971 and probably on the eve of compiling the new 1971 jury list. In a case which follows the commendable form of anticipatory injunctive relief for the future,⁶ rather than the post-event attack on validity of a criminal conviction⁷ or judgment in a civil suit⁸ we decline to approach a problem so directly related to the vital jury institution, Preston v. Mandeville, 5 Cir., 1970, 428 F.2d 1392, on a record which is inescapably stale when we know that much has happened — hopefully for the good — in the meantime.

This brings us to the facts revealed in the October 1969 "showing". But before discussing them or their significance it bears repeating that it was the District Court — not the request of Plaintiffs and Government — that required the showing. We are not, therefore, reviewing a question of whether an explanatory showing should have been ordered.⁹ Rather, the question is whether on this record the showing ordered by the Trial Court was adequate.

According to the 1960 Census the over 21 population of Baker County consisted of 48% whites and 52% Negro and totaled 2,233.¹⁰ The new 1969 traverse jury list approved by the District Court contained 590 names of which 384 or 66% were white and 206 or 34% were Negro. The new grand jury list contained 236 names of which 156 or 67% were white and 80 or 33% were Negro.

According to the Clerk of the Jury Commission these new lists were drawn largely from the list of registered voters. The voter list contained 2525 names — 1581 or 63% were white and 944 or 37% were Negro. This corresponded closely to the 66%/34% traverse jury list. The jury commissioners sent questionnaires¹¹ to all of these eligible voters inquiring as to their qualifications and willingness to perform jury service. 550 indicated they wished to be on the jury. 485 were either dead, claimed statutory valid exemptions, or were nonresidents. About 1,000 questionnaires were returned to the Jury Commission as undeliverable for insufficient address, while 500 or more were returned unsigned. The commissioners also asked three local Negroes to supply a list of Negro citizens who might be interested in or eligible for service. All but four of the names submitted, however, were duplicative of the names already on the voter registration list. Although the commissioners did use the telephone book, this was for verification of addresses, and not to procure new names. But apparently this procedure too would have produced negligible results.¹²

Georgia, as does the Federal Jury Service and Selection Act of 1968, 28 U.S.C.A. § 1861 et seq., calls for the primary use of the voter registration list as the source of names. Each, however, almost in constitutional terms, see Camp v. United States, 5 Cir., 1969, 413 F.2d 419, cert. denied, 1969, 396 U.S. 968, 90 S.Ct. 451, 24 L.Ed.2d 434, calls for a fair cross-section of the community and requires the use of supplemental sources¹³ if the use of voter lists does not reflect that cross-section. See Turner v. Fouche, 1970, 396 U.S. 346, 355-356, 90 S.Ct. 532, 537-538, 24 L.Ed.2d 567, 575-576. The use of voter list is not the end sought. Rather, that is the principal source. If the source is deficient or infected its use alone will not suffice.¹⁴

In the posture of this record the showing that this voter list would produce a fair cross-section is itself inadequate. Out of 2,500 names only 550 were effectively available. And assuming, without deciding, that of the 485 living and resident and the 500 returning but not signing the questionnaire were available, the fact remains that 40% could not even be used in the process of selective or random choosing because 1,000 questionnaires were returned as undeliverable. A list — this constitutes the "universe" — which is only 60% useable is hardly a source reflecting the community from which a fair cross-section may be obtained unless there is proof — lacking here — that the composition of the 40% remnant is comparable to the 60% available. The vice becomes more critical where, as in Georgia (see note 2, supra) the process is one of selecting "upright and intelligent" persons out of the voter list, not, as under the Federal Act a random selection from the voter list, 28 U.S.C.A. § 1863. It is one thing to make this highly individualized selection from a small segment — 500 names, 20% — quite another if the whole — 2,500 names, 100% — is the starting point. The field is severely narrowed and, in the absence of countervailing proof this enhances both the likelihood that the smaller segment is not truly representative as well as the opportunity for discriminatory application of the subjective qualifications.

We do not hold that to be acceptable a voter list must be 100% accurate, nor that 100% of the listed voters must return questionnaires. What we hold — under Georgia law without ever orbiting to a federal constitutional apogee — is that the deficiencies of the kind and extent shown here constitute an insufficient showing — as mandated by the Trial Judge — that the 1969 jury list accomplished what his decree¹⁵ required. (See note 5, supra).

There is an additional deficiency in the showing. This relates to the use of the subjective qualifier "upright and intelligent" persons. (See note 2, supra.) As to this, five things are revealed by this record. First, this was used as a basis for selection — more accurately, a basis for exclusion. Second, it was applied to exclude some Negroes. Third, who they were or how many is unknown. Fourth, what the basis was for such exclusions is unknown. But fifth, and probably most important, a standard was sometimes used which is simply not acceptable. In short, it was that a Negro was unacceptable if he had never been in a courtroom before, presumably as a defendant in a criminal case, a party in a civil case, a witness in either or a spectator.¹⁶

Although this Georgia qualifier was upheld in Turner v. Fouche, 1970, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567, following Carter v. Greene County, 1970, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549, the Court recognized the great potential for covert discrimination, the need for accessibility to federal courts to correct misapplications or abuse, and indeed reversed the fact findings of the three-Judge Federal District Court primarily because of the manner in which exclusions for non-uprightness-intelligence were handled. 396 U.S. at 359-360, 90 S.Ct. 532 at 539-540, 24 L.Ed.2d at 578-579. The record before us is, if anything, even more unsatisfactory. It does not show how many of either race were excluded or the reasons...