Pullum v. Greene, 25389.

• Citation: 396 F.2d 251
• Decision Date: 18 June 1968
• Docket Number: No. 25389.,25389.
• Parties: D. U. PULLUM et al., and United States of America, Appellants, v. Austin GREENE et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

396 F.2d 251 (1968)

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

No. 25389.

United States Court of Appeals Fifth Circuit.

June 18, 1968.

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 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) failing to find that defendants had pursued a long-standing pattern and practice of discrimination against Negroes in compiling jury lists in Terrell County, (2) failing to find that the pattern and practice of racial discrimination continued to and through the time of the hearing and defendants' motion to dismiss and (3) refusing to issue an injunction against defendants and in granting their motion to dismiss. The United States cites as error (1) the jury commission's selection procedures and standards operated to discriminate against Negroes prior to 1967 and no showing of change in 1967 was made and therefore the District Court erred in failing to hold that defendants' administration of the selective process did not comply with the constitutional duties and (2) absent clear evidence that defendants had abandoned their discriminatory practices, the District Court abused its discretion in not entering an injunction designed to eliminate present discrimination and like discrimination in the future.

It is clear that the District Court was acting under a misconception as to the nature of plaintiffs' complaint. The plaintiffs and intervening United States were attacking not just the use of the tainted segregated tax digest as a source of jury lists, but the whole pattern and practice of racial discrimination and exclusion of Negroes from jury service of which the tax digest was but one factor and one tool. The evidence showed that the jury commissioners had consistently and consciously disregarded both federal and state statutory and decisional law, and the mere change in state law, whose previous commands had already been consciously ignored, did not remove the central issue of the pattern and practice of racial discrimination. The change of merely one of the sources or tools of the conduct did not demonstrate a change in the conduct itself.

There is no question of the existence of even much more than a prima facie case of racial discrimination in Terrell County in the selection of juries. Negroes were 55.5% of the population according to the United States 1960 census but before September, 1966, after the filing of this law suit, no Negro had ever served on a jury. Compare Carroll County, Mississippi, in United States ex rel. Goldsby v. Harpole, 263 F.2d 71 (5th Cir., 1959). Previous to the 1967 amendment, Georgia law required the Terrell County jury commission to consult the segregated tax digest as the source for jurors. The evidence showed that in recent years the percentage of Negroes on this tax digest list was approximately 36% of the names but the testimony at the hearing was that the commissioners read the list "from A to Z" but evidently could never find a single qualified Negro. We find the reaction in plaintiffs' brief appropriate:

"The kindest words that can be said for this explanation is that it is incredible."

This pattern of conduct was in the face of United States Supreme Court decisions applying the "fairly representative cross-section" constitutional standard and duty to Georgia jury selection procedures in, Avery v. State of Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (195...