Malone v. Emmet, Civ. A. No. 2620-N.

• Decision Date: 28 December 1967
• Docket Number: Civ. A. No. 2620-N.
• Citation: 278 F. Supp. 193
• Parties: Marvin MALONE, Wenzell Wayne Cardell and Jessie Maner, Plaintiffs, v. Richard P. EMMET, William F. Thetford, Perry O. Hooper, and John R. Matthews, Sr., as members of the Board of Jury Supervisors of Montgomery County, Alabama, Richard P. Emmet, William F. Thetford, Eugene W. Carter, Circuit Judges of Montgomery County, Alabama, John R. Matthews, Sr., Clerk of the Circuit Court of Montgomery County, Alabama, and D. W. Crosland, District Attorney of Montgomery County, Alabama, Defendants.
• Court: U.S. District Court — Middle District of Alabama

278 F. Supp. 193

Marvin MALONE, Wenzell Wayne Cardell and Jessie Maner, Plaintiffs, v. Richard P. EMMET, William F. Thetford, Perry O. Hooper, and John R. Matthews, Sr., as members of the Board of Jury Supervisors of Montgomery County, Alabama, Richard P. Emmet, William F. Thetford, Eugene W. Carter, Circuit Judges of Montgomery County, Alabama, John R. Matthews, Sr., Clerk of the Circuit Court of Montgomery County, Alabama, and D. W. Crosland, District Attorney of Montgomery County, Alabama, Defendants.

Civ. A. No. 2620-N.

United States District Court M. D. Alabama, N. D.

December 28, 1967.

James D. Straiton, Montgomery, Ala., for plaintiffs.

M. R. Nachman, Jr. (of Steiner, Crum & Baker), and John R. Matthews, Jr. (of Ball & Ball), Montgomery, Ala., for defendants except Perry O. Hooper.

Jack Crenshaw (Crenshaw & Waller), Montgomery, Ala., for defendant Perry O. Hooper.

ORDER

JOHNSON, Chief Judge.

This cause is now submitted upon the motion of the defendant members of the Board of Jury Supervisors of Montgomery County, Alabama, and the defendants Richard P. Emmet, William F. Thetford and Eugene W. Carter, Circuit Judges of Montgomery County, Alabama; John R. Matthews, Sr., Clerk of the Circuit Court of Montgomery County, Alabama, and D. W. Crosland, District Attorney of Montgomery County, Alabama, filed herein on December 5, 1967, and the separate motion of defendant Perry O. Hooper, as a member of the Board of Jury Supervisors of Montgomery County, Alabama, filed herein on December 7, 1967, both of which motions seek dismissal of this action.

The plaintiffs through their complaint filed with the Clerk of this Court on December 4, 1967, seek injunctive and declaratory relief in connection with criminal prosecutions pending against each of them in the Circuit Court of Montgomery County, Alabama. Two of the plaintiffs are Negroes and the third is a Caucasian. Each of the plaintiffs, being financially unable to employ counsel, made application to the Circuit Court of Montgomery County, Alabama, for counsel, and pursuant to said applications the Court appointed the Honorable James D. Straiton, Attorney at Law, Montgomery, Alabama, to represent them in the criminal prosecutions. At the time plaintiffs' complaint was filed in this Court, the plaintiffs had been indicted by the Montgomery County, Alabama, Grand Jury. Two of the plaintiffs were by these indictments charged with armed robbery, and the other was charged with assault with intent to murder. The plaintiffs were arraigned in the state circuit court on November 14, 1967, at which time motions to quash the jury venire were filed on behalf of each. These motions were not ruled upon; the cases were set for trial on their merits to commence December 4 and December 6, 1967. The bases for plaintiffs' motions to quash the jury venire are:

(1) That the jury supervisors of Montgomery County, Alabama, are not eligible under the law to perform the functions required by such office for the reasons that:

(a) Some of the supervisors are circuit court judges and therefore hold another office of profit or trust; and

(b) John R. Matthews, Sr., a member of the Board of Jury Supervisors of Montgomery County, also holds the office of Clerk of the Circuit Court and, as such, is compensated on a fee basis; that Matthews, therefore, has a direct, personal and substantial financial interest in the conviction of defendants, and

(2) That the Board of Jury Supervisors for Montgomery County, Alabama, has systematically and intentionally excluded classes of prospective jurors from the jury roll and jury box of Montgomery County, Alabama, and, in doing so, has excluded from the Montgomery County jury roll the names of individuals of the "blue collar" or "working" class.

For these reasons, the plaintiffs say that the grand jury that indicted them and the petit jury that will try them are made up of individuals who do not represent a true cross section of the community.¹

Plaintiffs asked this Court to issue a temporary restraining order restraining further prosecution of the cases against them in the circuit court and restraining further illegal action on the part of the Board of Jury Supervisors of Montgomery County, Alabama. This request for temporary restraining order without giving any notice to the defendants and without this Court's conducting any hearing was denied on December 5, 1967. Plaintiffs also seek preliminary and permanent injunctions enjoining the authorities of Montgomery County, Alabama, from further prosecuting the cases against them in the circuit court until new jury supervisors have been appointed and until the jury rolls and jury box for said county include the names of individuals representing a true cross section of the community; additionally, plaintiffs request that this Court render a declaratory judgment declaring unconstitutional the statute creating the Board of Jury Supervisors for Montgomery County, Alabama,² and declaring further that the action on the part of the jury supervisors in systematically and intentionally excluding classes of prospective jurors from the jury roll and jury box of Montgomery County deprives these plaintiffs of basic constitutional rights.

The law is quite clear that a jury roll and jury box must contain a representative cross section of the community. Scott v. Walker, 358 F.2d 561 (5th Cir. 1966); Billingsley v. Clayton, 359 F. 2d 13 (5th Cir. 1966), cert. denied 385 U. S. 841, 87 S.Ct. 92, 17 L.Ed.2d 74 (1966); Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966); Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966); Rabinowitz v. United States, 366 F.2d 34 (5th Cir. 1966); Mobley v. United States, 379 F.2d 768 (5th Cir. 1967). In regard to the systematic exclusion of daily wage earners, compare Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946); Windom v. United States, 260 F.2d 384 (10th Cir. 1958); Padgett v. Buxton-Smith Mercantile Co., 283 F.2d 597 (10th Cir. 1960), cert. denied 365 U.S. 828, 81 S.Ct. 713, 5 L.Ed.2d 705 (1961); United States v. Brandt, 139 F.Supp. 349 (N.D. Ohio 1956). However, this Court is clear to the conclusion that the plaintiffs' motion for injunctive relief should be denied. As observed, the criminal prosecutions against these plaintiffs were formally commenced several weeks prior to the filing of their complaint in this Court and all of the preliminary proceedings in these criminal prosecutions had taken place well in advance of the filing of the complaint with this Court. As a matter of fact, the complaint was not filed in this Court until the date two of the plaintiffs' cases were to commence for trial on their merits in the state circuit court. Upon consideration of these facts, this Court can see no justification to support the exercise of its jurisdiction to enjoin the criminal prosecutions of these plaintiffs in the courts of the State of Alabama in order to afford plaintiffs an opportunity to pursue in this federal court their contentions relating to the legality of the Montgomery County Board of Jury Supervisors and the constitutionality of the composition of the Montgomery County jury roll and jury box. As this Court observed in Davis v. Jury Commission of Montgomery County, D.C., 261 F.Supp. 591:

"* * * Based on these facts, which were not before this Court when it entered its previous order of November 10, 1966, this Court can conceive of no justification to support the exercise of its jurisdiction to enjoin further criminal prosecution of this plaintiff in the courts of the State of Alabama in order that he might pursue his contentions relating to the constitutionality of the composition of the Montgomery County jury box and venire in this federal court. The case of Dombrowski v. Pfister, 380 U.S. 479 85 S.Ct. 1116, 14 L.Ed.2d 22, relied on by the plaintiff, does not require a different result. The facts and circumstances in that case render it completely distinguishable and therefore inapposite. Clearly the normal and appropriate method of raising the primary issue Davis seeks to raise in this court is in the criminal prosecution presently pending in the Alabama Circuit Court. Footnote omitted. Certainly, a proper respect for the federal system requires this result. The fundamental principles of comity which govern our federal system, as exemplified by § 2283, Title 28, United States Code,2 have traditionally prompted denial of federal injunctive relief affecting state prosecutions in such instances as now presented. Douglas v. City of Jeannette, 319 U.S. 157 63 S.Ct. 877, 87 L.Ed. 1324; Stefanelli v. Minard, 342 U.S. 117 72 S.Ct. 118, 96 L.Ed. 138. A clear and forceful articulation of these principles was made by the Supreme Court in Stefanelli v. Minard, supra:

"2. § 2283. `A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.'

`The consequences of exercising the equitable power here invoked are not the concern of a merely doctrinaire alertness to protect the proper sphere of the States in enforcing their criminal law. If we were to sanction this intervention, we would expose every State criminal prosecution to insupportable disruption. Every question of procedural due process of law—with its far-flung and undefined range—would invite a flanking movement against the system of State courts by resort to the federal forum, with review if need be to this Court, to determine the issue. Asserted unconstitutionality in the impaneling and selection of the grand and petit juries, in the failure to appoint counsel, in the admission of a confession, in the creation of an unfair trial atmosphere, in the misconduct of the trial court—all would provide ready opportunities, which conscientious counsel might be bound to employ, to subvert the orderly, effective prosecution of local crime in

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