Pullum v. Greene, 25389.

Citation396 F.2d 251
Decision Date18 June 1968
Docket NumberNo. 25389.,25389.
PartiesD. U. PULLUM et al., and United States of America, Appellants, v. Austin GREENE et al., Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

396 F.2d 251 (1968)

D. U. PULLUM et al., and United States of America, Appellants,
Austin GREENE et al., Appellees.

No. 25389.

United States Court of Appeals Fifth Circuit.

June 18, 1968.

396 F.2d 252

Howard Moore, Jr., Atlanta, Ga., Norman C. Amaker, New York City, C. B. King, Albany, Ga., Frank M. Dunbaugh, Atty., Dept. of Justice, Washington, D. C., Jack Greenberg, New York City, for appellants.

Stephen J. Pollak, Asst. Atty. Gen., Floyd M. Buford, U. S. Atty., John Kirby, Michael R. Flicker, Attys., Dept. of Justice, Washington, D. C., for appellant United States.

A. J. Land, Columbus, Ga., W. L. Ferguson, R. R. Jones, Dawson, Ga., Hatcher, Stubbs, Land & Rothschild, Columbus, Ga., for appellees.

Before TUTTLE and DYER, Circuit Judges, and MEHRTENS, District Judge.

TUTTLE, Circuit Judge:

This is an appeal from the District Court's denial of injunctive relief and dismissal of the complaint of Negro residents of Terrell County, Georgia, who filed a class action against the jury commissioners and other officials, seeking to end discrimination against Negroes in jury service in Terrell County.

Plaintiffs' amended complaint below alleged that (1) Negroes had been systematically excluded from jury service in the county, (2) the jury lists and juries selected did not represent a truly representative cross-section of all qualified persons as constitutionally required and (3) Negroes had been deliberately excluded from serving as jury commissioners. On September 1, 1966, the United States was granted leave to intervene and such intervening complaint alleged systematic exclusion and sought injunctive relief against racial discrimination in jury selection, the continued use of the jury lists then utilized, practices and procedures which had the effect of racial discrimination, and the failure to insure a representative cross-section.

After the suit was filed, on September 12, 13 and 14, the jury commissioners revised the jury lists to include Negroes for the first time. On January 16, 1967, the United States filed a motion to convene a three-judge court and to amend its complaint to challenge the Georgia statute which required the segregated tax digest to be used as the exclusive source of names for prospective jurors. On January 26, the District Court denied the motion on the grounds that the tax digest had sufficient Negroes for the jury commission to secure a fairly representative cross-section. This revised list was in use at the time the hearing was had on the complaint before the District Court on February 20, 21 and 22, 1967.

Before final briefs were submitted, the Georgia Legislature, apparently in response to the United States Supreme Court's decision on January 23, 1967 in Whitus v. State of Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599, which called into question the constitutional validity of jury lists drawn from segregated Georgia tax digests, amended the Georgia Code to require the jury commissioners to compose immediately a new

396 F.2d 253
jury list which would be a fair cross-section of "upright and intelligent" citizens by consulting the voting lists rather than the segregated tax digest; the new statute further provided that if the jury commissioners determined that the voter lists were not fairly representative, they were to supplement such by personally acquainting themselves with the "upright and intelligent" citizenry of the county, "including upright and intelligent citizens of any significantly identifiable group in the county which may not be fairly represented thereon." Georgia Code Annotated § 59-106

Written briefs were submitted by both sides on April 24, and on May 11 defendants moved for dismissal on the grounds that the new statute rendered all issues moot and in view of the assertion that on May 3 the jury commissioners had prepared a new jury list allegedly meeting the requirements of the new statute. Attached to the motion was an affidavit of the county clerk stating that a new jury list had been completed and filed "pursuant to the requirements" of the new law. On June 29 the District Court filed an opinion and order denying the plaintiffs' prayer for injunctive relief and dismissing their complaint upon defendants' motion and accompanying affidavit. The District Court interpreted the plaintiffs' complaint as this:

"The main thrust of the plaintiffs\' case is the contention that since Georgia Law required the selection of jurors from the tax digest only, and since the jury commissioners follow the provisions of Georgia Law in this respect in selecting the names of jurors in the county, and since the names of Negroes do not appear on the tax digest in proportion to their actual numbers in the county, this amounts to an automatic use of a property qualification by the jury commissioners which necessarily resulted in systematic exclusion of Negroes from the jury lists."

Noting both that the new statute discarded the use of the segregated tax digest and that the jury commissioners had filed a new jury list pursuant to the requirements of the new law, the District Court then observed:

"Obviously, the situation which now exists is radically different from that which existed at the time this complaint was filed and at the time evidentiary hearing was had. Consequently, all of the allegations of the complaint and the testimony both of the plaintiffs and the defendants at the trial of the case and the documentary evidence introduced relating to the matter, have no relevance whatever to the jury lists now in use in Terrell County, compiled pursuant to the new statute. The testimony which the court heard dealt almost entirely with the method of preparing the jury lists and the makeup of some lists prior to the passage of the new statute and do not relate to the preparation of the lists now in use."

In the District Court's view the plaintiffs had sought merely to compel the abandonment of the jury lists prepared from segregated tax digests and the preparation of the new lists from other sources and thus all the relief sought by injunction had been obtained as a result of the passage of the new statute. The District Court declared that none of the allegations of the petition and none of the evidence already taken had any application to the new list; the District Court further asserted a lack of challenge by plaintiffs to this new list and declared that if such challenge were made, racial discrimination would have to be shown by new evidence at a new trial, and unless and until the plaintiffs determined that the new lists did discriminate and so alleged and proved, there was no issue to be determined before the Court, though the District Court pointed out that its dismissal would not preclude plaintiffs from making a new attack.

The Negro plaintiffs assert that the District Court erred in (1)...

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    ...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); Pullum v. Greene, 396 F.2d 251 (5th Cir. 1968); Billingsley v. Clayton, 359 F.2d 13 (5th Cir. 1966) (en banc), cert. denied, 385 U.S. 841, 87 S.Ct. 92, 17 L.Ed.2d 74 Faced......
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