Citation378 F. Supp. 605
Decision Date16 May 1974
Docket NumberNo. C-72-1689.,C-72-1689.
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
PartiesIndiana QUADRA et al., Plaintiffs, v. SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO et al., Defendants.



Albert F. Moreno, Sidney M. Wolinsky, Public Advocates, Inc., San Francisco, Cal., for plaintiffs.

Thomas M. O'Connor, City Atty., George E. Krueger, Deputy City Atty., San Francisco, Cal., for defendants.

Evelle J. Younger, Atty. Gen., San Francisco, Cal., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Derald E. Granberg, Clifford K. Thompson, Jr., Deputy Attys. Gen., for amicus curiae.


RENFREW, District Judge.

Plaintiffs have brought this action to challenge the process of selecting members of the grand jury for San Francisco County. Defendants are the Superior Court of the City and County of San Francisco, the judges of that court, and an executive officer of the court who serves as jury commissioner. They invoke the jurisdiction of this Court under 28 U.S.C. §§ 1343, 2201, and 2202, and the doctrine of pendent jurisdiction, and ask for injunctive and declaratory relief.

Plaintiffs' essential claim is that the "personal-selection" system used by defendants in selecting grand jurors in San Francisco has resulted in the "systematic exclusion" of non-white ethnic minorities, women, residents of "lower-strata neighborhoods of the city," low-income blue-collar workers, and "young adults," persons between the ages of twenty-one and forty. Plaintiffs seek to maintain this lawsuit as a class action under Rule 23(b)(2), Federal Rules of Civil Procedure, in terms of these five classes.

In their complaint, plaintiffs allege three causes of action:

1. They contend that the policies and practices of defendants deny them an equal opportunity to qualify for grand-jury service in violation of 18 U.S.C. § 243. That section, however, is a criminal provision prohibiting the exclusion of persons from service on federal or state grand or petit juries "on account of race, color, or previous condition of servitude * * *" and does not provide the basis for a civil suit. Quarles v. State of Texas, 312 F.Supp. 835, 837 (S.D.Tex. 1970). Cf. Agnew v. City of Compton, 239 F.2d 226, 230 (9th Cir. 1956), cert. denied, 353 U.S. 959, 77 S.Ct. 868, 1 L.Ed.2d 910 (1957). The first cause of action must, therefore, be dismissed.

2. Plaintiffs' second cause of action is a claim that defendants have violated 42 U.S.C. § 1983 and the Equal Protection Clause of the Fourteenth Amendment by arbitrarily denying them an equal opportunity to participate on the grand jury. The Superior Court, however, is not a "person" under § 1983 and must be dismissed from this cause of action. Zuckerman v. Appellate Div., Sec. Dept., S.Ct. of N.Y., 421 F.2d 625, 626 (2nd Cir. 1970); Clark v. State of Washington, 366 F.2d 678, 681 (9th Cir. 1966); Harris v. Louisiana State Supreme Court, 334 F.Supp. 1289, 1299-1300 (E.D.La. 1971); Schackman v. Arnebergh, 258 F.Supp. 983, 993 (C.D. Cal. 1966), appeal dismissed, 387 U.S. 427, 87 S.Ct. 1622, 18 L.Ed.2d 865 (1967), rehearing denied, 389 U.S. 893, 88 S.Ct. 16, 19 L.Ed.2d 204 (1967). See also City of Kenosha v. Bruno, 412 U.S. 507, 513, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Monroe v. Pape, 365 U.S. 167, 187-192, 81 S.Ct. 473, 484-86, 5 L.Ed.2d 492, 505-07 (1961).

This cause of action may proceed, however, as a claim for injunctive and declaratory relief against the individual defendants in their official capacities. Erdmann v. Stevens, 458 F.2d 1205, 1208 (2nd Cir. 1972), cert. denied, 409 U.S. 889, 93 S.Ct. 126, 34 L.Ed.2d 147 (1972); Law Students Civil Rights Research Coun., Inc. v. Wadmond, 299 F.Supp. 117, 123-124 (S.D.N.Y. 1969) (Friendly, J.), aff'd, 401 U.S. 154, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971) (without review of this § 1983 issue: see 401 U.S. at 158, n. 9); Martarella v. Kelley, 349 F.Supp. 575, 593-594 (S.D.N.Y. 1972). Cf. Pierson v. Ray, 386 U.S. 547, 553-554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Silver v. Dickson, 403 F.2d 642, 643 (1968), cert. denied, 394 U.S. 990, 89 S.Ct. 1477, 22 L.Ed.2d 765 (1969).

3. Plaintiffs' third cause of action is based upon Article I, §§ 11 and 21, of the California Constitution. They contend that defendants, through their policies and practices of grand-jury selection, have denied plaintiffs' five classes of persons equal consideration for grand-jury service and that no rational or legitimate state objective justifies this denial.1

Plaintiffs' application for a preliminary injunction seeking to enjoin defendants from selecting the members of the 1973 grand jury was denied orally by the Court because of plaintiffs' failure to prosecute their application in a timely manner. They have also asked for a declaratory judgment that their federal and state civil rights have been violated by defendants, for permanent injunctive relief, for their costs and reasonable attorney's fees, and for any further necessary relief.

Defendants have moved for dismissal on the grounds of plaintiffs' failure to state a cause of action upon which relief can be given and, alternatively, for summary judgment. Plaintiffs have also moved for summary judgment and, alternatively, for partial summary judgment.

The State of California has, upon the invitation of the Court, appeared in these proceedings as amicus curiae.

I. The Grand-Jury Selection Process

A state grand jury in California is composed of twenty-three members in a county with a population exceeding four million and, as in San Francisco, of nineteen members in counties with populations of less than four million. Cal.Penal Code § 888.2. A person is competent for grand-jury service only if (1) he is a United States citizen aged eighteen years or older who has been a resident of California and of the county or city and county for at least one year immediately before being selected and returned; (2) "he is in possession of his natural faculties, of ordinary intelligence, of sound judgment, and of fair character"; and (3) he is sufficiently knowledgeable of the English language. Cal.Penal Code § 893(a). A person is not competent to serve if he is serving as a trial juror in any court of the State, if he has been discharged as a grand juror by a State court within one year prior to the time for selection, if he has been convicted of "malfeasance in office" or of a felony or "other high crime," or if he is serving as an elected public officer. Cal.Penal Code § 893(b).

There are essentially two different systems of selecting grand jurors provided for under the California statutes. Both systems begin with an order by each superior court in January of each year designating the estimated number of grand jurors that will be needed during the ensuing year. Cal.Penal Code § 895. Then, under one system, the court must select the members of the grand jury through personal interviews. If the court finds that a person has the requisite qualifications, then, for his name to be listed, that person must sign a statement to the effect that he will be available for the number of hours required for grand-jury service. Cal. Penal Code § 896(a). The court must then "list the persons so selected and required by the order to serve as grand jurors during the ensuing year, or until a new list of grand jurors is provided, and shall at once place this list in the possession of the county clerk." Cal. Penal Code § 896(b). The county clerk then chooses the grand jurors from this list by lot. Cal.Penal Code §§ 900, 902.

The other statutory system, the one applicable to San Francisco, covers counties in which an officer performs the duties of a jury commissioner. Cal.Penal Code § 903. Following written rules and instructions adopted by a majority of the judges of the superior court, the jury commissioner is to furnish the judges each year with a list of persons qualified to serve on the grand jury. Cal.Penal Code § 903.1. The jury commissioner is first to make a diligent inquiry into the qualifications of county residents. Cal.Penal Code § 903.2.2 He then recommends to the judges a list of persons from which the judges select the grand jurors. Cal.Penal Code § 903.3. However—

"The judges are not required to select any names from the list returned by the jury commissioner, but may, if in their judgment the due administration of justice requires, make all or any selections from among the body of persons in the county suitable and competent to serve as grand jurors regardless of the list returned by the jury commissioner." Cal.Penal Code § 903.4.

In San Francisco, however, as the process has been described by defendants,3 the jury commissioner does not initially provide the judges with a list of persons that he has found to be qualified. Instead, the jury commissioner asks the judges to submit the names of persons whom the judges have found to be interested and qualified for grand-jury service. Each of the twenty-six judges normally offers four or five names, or approximately 130 in total. The jury commissioner then sends questionnaires to those persons to determine their general qualifications for grand-jury service and their availability for the amount of time required for service When the questionnaires are returned, the jury commissioner prepares a list of the nominees which he submits to the judges. They review and approve a final list; they may delete names from the submitted list. The remaining names are given to the county clerk who, using the process prescribed by Cal.Penal Code § 900, places the names on individual pieces of paper, then puts them in capsules and seals them in a "grand jury box" from which thirty names are drawn. Those persons chosen are summoned and undergo a voir dire examination before the presiding judge who then selects the nineteen persons who will constitute the grand jury.4

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