Penn v. Eubanks

• Citation: 360 F. Supp. 699
• Decision Date: 06 June 1973
• Docket Number: Civ. A. No. 3589-N.
• Parties: Willie PENN et al., Plaintiffs, v. Polly EUBANKS, Individually and as Secretary and member of the Montgomery County Jury Commission and her successors in office, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

360 F. Supp. 699

Willie PENN et al., Plaintiffs, v. Polly EUBANKS, Individually and as Secretary and member of the Montgomery County Jury Commission and her successors in office, et al., Defendants.

Civ. A. No. 3589-N.

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

June 6, 1973.

COPYRIGHT MATERIAL OMITTED

Morris Dees and Joseph J. Levin, Jr. (Southern Poverty Law Center), Montgomery, Ala., for plaintiffs.

John R. Matthews, Jr. (Ball, Ball, Matthews & Lamar), Montgomery, Ala., and M. R. Nachman, Jr., Montgomery, Ala. (Steiner, Crum & Baker), Montgomery, Ala., for defendants.

MEMORANDUM OPINION

JOHNSON, Chief Judge.

Plaintiffs bring this multiple class action for themselves and others similarly situated, seeking relief against the Montgomery County Jury Commission for alleged race, sex and income discrimination in the selection of potential jurors. Plaintiffs claim that they are fully qualified for jury service, that they have never been called to serve on a jury in Montgomery County and that their names are not included on the jury rolls or in the jury box of Montgomery County.¹

The parties have stipulated that, according to the 1970 United States Census, there are 83,055 people in Montgomery County between the compulsory jury duty ages of 21 and 65 and that the jury rolls contain the names of some 7,400 persons, of which 6,468 are actually placed on jury cards and included in the jury box from which the names of persons to be called for jury service are randomly drawn. The parties have further stipulated that 16% of those persons on the jury rolls are female and 12% are black, while, according to the 1970 United States Census, 53.9% of those persons eligible by age for jury duty in Montgomery County are female and 30.7% are black. In support of their claim of discrimination on the basis of income, plaintiffs have adduced other evidence which will be outlined in greater detail below. The case was submitted, without formal hearing, upon the foregoing stipulations and other evidence listed in a joint statement of submission. Based on this evidence, plaintiffs contend and defendants deny that the jury system of Montgomery County, Alabama, systematically excludes persons on account of race, sex and income.

Jury service on the part of citizens of the United States is considered under our law in this country as one of the basic rights and obligations of citizenship. Jury service is a form of participation in the processes of government, a responsibility and a right that should be shared by all citizens, regardless of race or sex or income. Any juror selection plan, therefore, that results in denying blacks, or women or persons of lower income the right to serve on juries in the courts of the State of Alabama is violative of the Fourteenth Amendment.

I. RACE

The Fifth Circuit has frequently stated that "figures speak and when they do, courts listen." See, e. g. United States v. Board of Education, 396 F.2d 44, 46 (5th Cir. 1968); United States v. Alabama, 304 F.2d 583, 586 (5th Cir. 1962). In jury selection cases the Fifth Circuit has consistently held that while the party alleging systematic exclusion from jury duty bears the initial burden of establishing a prima facie case of discriminatory jury selection, a prima facie case is established when it is demonstrated both that there is opportunity for racial discrimination in the selection of potential jurors and that a significant disparity exists between the percentage of blacks chosen for jury duty and the percentage of blacks eligible for jury duty in the population from which jurors are drawn. Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Gibson v. Blair, 467 F.2d 842 (5th Cir. 1972); Preston v. Mandeville, 428 F.2d 1392 (5th Cir. 1970); Black v. Curb, 422 F.2d 656 (5th Cir. 1970); Salary v. Wilson, 415 F.2d 467 (5th Cir. 1969). Neither proof of complete exclusion of blacks, nor proof of specific acts of discrimination is required to establish a prima facie case. Gibson v. Blair, supra. Once a prima facie case has been presented, the burden of explaining the disparity falls upon the defendant. Preston v. Mandeville, supra; Black v. Curb, supra; Salary v. Wilson, supra. Mere declarations by defendant that race is not a factor in determining who is selected for jury service are insufficient to overcome a prima facie case of discrimination. Black v. Curb, supra, 422 F.2d at 660. Neither may those charged with administering the jury selection machinery transfer to the Negro community or any other segment of the community the responsibilities placed by law upon them; nor may they transmute insufficient methods into efficient ones on the basis that Negro "key men" are not sufficiently responsive to requests for names of suggested jurors. Salary v. Wilson, supra, 415 F.2d at 472. Finally, while it is not required that the jury commission place the name of each eligible juror on the rolls, the names in the box must reflect a full cross-section of the community. See, e. g., Mobley v. United States, 379 F.2d 768 (5th Cir. 1967); Rabinowitz v. United States, 366 F.2d 34 (5th Cir. 1966).

Defendants' first line of defense is that plaintiffs have failed to show a significant statistical disparity between the percentage of blacks chosen for jury duty and the percentage of blacks in the population eligible for jury duty. In support of their position, defendants attempt to minimize the statistical disparity by introducing evidence that 21% of the black population over the age of 25 has a zero to fourth grade education. From that evidence, together with a non-expert opinion elicited from a reluctant adverse witness, who on cross examination indicated that he would expect a significant portion of persons with a zero to fourth grade education to be illiterate, defendants would apparently have this Court further assume that a significant portion of those unable to read and write are not freeholders within the meaning of the statutory exception to the literacy requirement, see Title 30, Section 21, Code of Alabama (Recomp. 1958, 1971 Cum.Supp.), and conclude that the 30% figure of blacks eligible by age must be reduced to 24% on this basis alone. This Court declines to engage in such rank speculation.

The evidence reflects that the means for selecting potential jurors was highly subjective and thus permitted the opportunity for racial discrimination. The question, then, is whether the disparity between the stipulated percentage of blacks eligible by age for jury service and the stipulated percentage of blacks actually on the jury rolls is sufficient to establish a prima facie case of racial discrimination. In view of the methods used in the selection of potential jurors, this Court concludes that the statistical disparity is sufficient to establish a prima facie case. Consequently, the burden is on defendants to explain the disparity. Neither speculation on the literacy of blacks eligible by age for jury service, nor the claimed reluctance of black leaders to suggest names of potential jurors, nor defendants' declarations of good faith is sufficient to carry that burden. Defendants have offered no other explanation. Thus, plaintiffs' prima facie case of racial discrimination in the selection of potential jurors stands unrebutted. This Court finds, therefore, that blacks have been and continue to be systematically excluded from the jury rolls of Montgomery County.

II. SEX

While it is well-settled that a state may allow women unconditional exemption from jury service, see Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L. Ed.2d 118 (1961), it is equally well-settled that women cannot be excluded arbitrarily from such service. White v. Crook, 251 F.Supp. 401 (M.D.Ala.1966). Thus, while the disproportion of women to men on a jury list may carry no constitutional significance where a state exempts women from being listed for jury service unless they volunteer, Hoyt v. Florida, supra, the same cannot be said where no such exemption exists and where such a disproportion is purely the result of caprice.

Alabama provides women no exemption from being listed for jury service but merely allows any female summoned for jury service to appear before the trial judge and upon good cause shown to be excused from jury duty. Title 30, § 21, Code of Alabama (1971 Cum.Supp.). Plaintiffs have established that a significant disparity exists between the percentage of women eligible by age for jury service in Montgomery County and the percentage of women actually listed on jury rolls. Thus, the burden is on defendants to explain the disparity. The only such attempt comes in defendants' trial brief, where it is suggested that because women may upon good cause shown be excused from jury duty, their representation on the jury rolls in any percentage close to 50 percent would cause disruptions of every trial docket and attendant delays and burdens on the efficient administration of the business of the courts. Defendants contend that jury officials are not required to ignore the "common knowledge" that more women than men well be excused from jury duty and that the Alabama statute contemplates just that.

This explanation suffers two defects: First, other provisions of the Code of Alabama make it clear that men as well as women may in the trial judge's discretion be excused from jury service. See Title 30, § 38, Code of Alabama (Recomp.1958). Second, defendants have failed to present any evidence either that significantly more women than men may be expected to be excused from jury service or that inclusion of more women on the jury rolls will cause inordinate disruptions and delay.² Once again, plaintiffs' prima facie case stands unrebutted, compelling this Court to conclude that women have been and continue to be systematically and arbitrarily excluded from the jury rolls of Montgomery County.

III. INCOME

In attempting to establish the existence of systematic...