Salary v. Wilson

• Decision Date: 25 September 1969
• Docket Number: 26072.,No. 25978,25978
• Citation: 415 F.2d 467
• Parties: Rev. J. A. SALARY, Appellant, v. John C. WILSON, Jr., et al., Appellees. Ada Pearl SMITH, Appellant, v. Honorable Gardner F. GOODWYN, Jr., et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

415 F.2d 467 (1969)

Rev. J. A. SALARY, Appellant, v. John C. WILSON, Jr., et al., Appellees.

Ada Pearl SMITH, Appellant, v. Honorable Gardner F. GOODWYN, Jr., et al., Appellees.

Nos. 25978, 26072.

United States Court of Appeals Fifth Circuit.

July 31, 1969.

Rehearing Denied and Rehearing September 25, 1969.

No. 25978

Demetrius C. Newton, Birmingham, Ala., Jack Greenberg, Norman C. Amaker, New York City, Oscar W. Adams, Jr., Birmingham, Ala., for appellants.

No. 26072

Oscar W. Adams, Jr., Harvey M. Burg, Adams & Burg, Demetrius C. Newton, Birmingham, Ala., Jack Greenberg, Norman C. Amaker, New York City, for appellant.

MacDonald Gallion, Atty. Gen., Leslie Hall, Asst. Atty. Gen., Montgomery, Ala., Hugh B. Harris, Jr., Asst. Deputy Dist. Atty., Bessemer, Ala., Maurice F. Bishop, Birmingham, Ala., Earl C. Morgan, District Atty., Birmingham, Ala., Louis Wilkinson, Deputy District Atty., Birmingham Ala., for appellees.

Before GEWIN and GODBOLD, Circuit Judges, and CHOATE, District Judge.

Rehearing Denied and Rehearing En Banc Denied in No. 25978 September 25, 1969.

GODBOLD, Circuit Judge:

In these appeals we consider again challenges asserted on constitutional grounds against jury selection procedures employed in the state circuit court in Jefferson County, Alabama.

These cases are offspring of Billingsley v. Clayton, 359 F.2d 13 (5th Cir.), cert. denied, 385 U.S. 841, 87 S.Ct. 92, 17 L.Ed.2d 74 (1966), in which this court reviewed the jury selection system employed in Jefferson County and in an en banc decision concluded that the plaintiffs therein had failed to prove systematic exclusion of Negroes. Jefferson County constitutes the Tenth Judicial Circuit of Alabama. The Circuit Court is divided into the Birmingham Division, and the Bessemer Division (which covers the area of the county generally described locally as "the Bessemer Cutoff.") Each of the two divisions has a separate jury roll and jury box. The two cases now before us relate only to the Bessemer Division.

Salary v. Wilson is a class action brought by four Negroes alleging that they and other Negroes living in the area have been discriminated against by not being allowed to serve on Bessemer Division juries. They seek an injunction forbidding the use of the current jury roll and box and an order requiring the compilation of a new jury roll.¹ Smith v. Goodwyn is an individual action seeking a declaratory judgment that an indictment for murder against appellant Smith, a Negro, is void because the grand jury which returned it was the product of the allegedly unconstitutional jury selection system in effect in the Bessemer Division. Mrs. Smith also seeks an injunction to prevent appellees from giving any effect to the indictment and from trying her before a petit jury chosen under the present selection system.²

The defendants in Salary are the members and the Clerk of the Jury Board and the Clerk of the Circuit Court, Bessemer Division. In Smith the defendants are the same plus the Circuit Judges, and the District Attorney, of the Bessemer Division.

The district court denied relief in Salary on a full record, and dismissed Smith on the ground that the Salary record and decision had disposed of all the issues.

The subject matter of these cases is neither new nor novel. The discriminatory administration of jury selection laws fair on their face achieving a result of exclusion of Negroes from juries has been a violation of the Fourteenth Amendment for almost 100 years. Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567 (1881). Discrimination in the selection of grand juries has been the basis for reversal of state criminal convictions since 1883. Bush v. Kentucky, 107 U.S. 110, 1 S.Ct. 625, 27 L.Ed. 354 (1883). Nearly twenty years ago the Supreme Court said in Smith v. Texas:

For racial discrimination to result in the exclusion from jury service of otherwise qualified groups not only violates our Constitution and the laws enacted under it but is at war with our basic concepts of a democratic society and a representative government. * * * The fact that the written words of a state\'s laws hold out a promise that no such discrimination will be practiced is not enough. The Fourteenth Amendment requires that equal protection to all must be given — not merely promised.

311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84, 86 (1940).³

Billingsley turned on failure of proof by plaintiffs who charged racial discrimination of a systematic nature in the jury selection process. There was no proof of the racial composition of Bessemer Division jury boxes. This court concluded that the record showed a good faith, bona fide effort by the Jury Board to give Negroes an equal, if not a privileged, opportunity to be called for jury service, and that in the absence of proof of the racial composition of the jury boxes the district court was justified in concluding that plaintiffs had failed in their proof. Billingsley did not preclude the grant of relief in any future case in which systematic racial discrimination might be established by adequate proof.⁴

Salary is the obverse of Billingsley. The plaintiffs introduced competent statistical data showing the racial composition of the Bessemer Division jury roll as measured against the racial composition of the community. The evidence reveals that in 1967 in the Bessemer Division there were above the age of twenty 20,238 Negroes and 16,158 whites. Thus, Negroes potentially available for jury service represented approximately 55 percent of the population.⁵ The jury roll compiled in 1966-67 — the latest one before us on this appeal — contained 12,050 names, of which 1,549 were Negroes. This represents 12.9 percent of the total number of names on the roll.⁶ The jury roll in use in 1966 contained 9,546 names of which 675 were Negroes, approximately seven percent.

"Litigants are permitted to establish a prima facie case by proof of the objective results of the jury selection procedure." Billingsley, 359 F.2d at 17. "Very decided variations in proportions of Negroes and whites on jury lists from racial proportions in the population, which variations are not explained and are long continued, furnish sufficient evidence of systematic exclusion of Negroes from jury service." United States ex rel. Seals v. Wiman, 304 F.2d 53, 67 (5th Cir. 1962). See also Rabinowitz v. United States, 366 F. 2d 34, 58 (5th Cir. 1966).

Under these principles the plaintiffs in Salary established a prima facie case of invalid exclusion of Negroes, on a racially discriminatory basis, from consideration for the jury roll, in violation of the Fourteenth Amendment to the constitution of the United States. This put on the members and Clerk of the Jury Board the burden of coming forward with a constitutionally acceptable explanation for the racial disparities shown to exist. Patton v. Mississippi, 332 U.S. 463, 466, 68 S.Ct. 184, 186, 92 L.Ed. 76, 79 (1947); Pullum v. Greene, 396 F.2d 251, 254 (5th Cir. 1968); Labat v. Bennett, 365 F.2d 698, 719 (5th Cir. 1966); Davis v. Davis, 361 F.2d 770, 773 (5th Cir. 1966).

The evidence is that the Board is, in general, following the same procedures and practices in securing names to be placed on the Bessemer Division roll that were followed by them at the time of the Billingsley case. The details of the system are fully set out in that opinion, 359 F.2d at 18-22. Briefly stated, the procedure is to conduct each two years a house-to-house canvass of the urban areas of the county to secure names of people qualified to be jurors. When no one, or no reliable informant, is found at home the canvasser will question a neighbor or leave a post card to be mailed by the residents. In rural areas names are sought from postmasters and storekeepers.⁷ No Negro canvassers are used.⁸ Most of the canvassers are females. Males go into what are described as the "rough areas" of the community.

In addition letters are sent to some Negroes, primarily ministers seeking the names of other Negroes for inclusion on the jury roll.⁹ The city directory and telephone book are used to obtain occupational data and for correct spelling of names. Neither is used as a source of names. Voting lists are not used at all. Once names are secured the Board attempts to eliminate those of persons having criminal records. No evidence was submitted showing that this resulted in elimination of a percentage of Negro names substantially different from the percentage of Negroes in the population. No evidence was offered of disqualification of Negroes, or whites, on educational grounds. No written record of the racial composition of the jury roll is kept anywhere by the Jury Board.

Nothing in the system itself tends to justify the sharp variations revealed by the objective statistical data. The only other evidence in the nature of explanation is the failure of Negro "key men" to respond to letters calling for names of suggested jurors¹⁰ and instances of suspicion by Negroes of white canvassers employed by the Jury Board and reluctance of Negroes to cooperate with the canvassers. But the mandates of the constitution cast upon members of jury boards, as judicial administrators, affirmative duties which must be carried out in order to have a constitutionally secure system. Avery v. Georgia, 345 U.S. 559, 561, 73 S.Ct. 891, 892, 97 L.Ed. 1244, 1247 (1953); Cassell v. Texas, 339 U.S. 282, 289, 70 S.Ct. 629, 633, 94 L.Ed. 839, 848 (1950); Hill v. Texas, 316 U.S. 400, 404, 62 S.Ct. 1159, 1161, 86 L.Ed. 1559, 1562 (1942); Pullum v. Greene, supra; Mobley v. United States, 379 F.2d 768, 772 (5th Cir. 1967); Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966); Rabinowitz v. United States, supra; United States ex rel. Seals v. Wiman, supra; Bokulich v. Jury Commission of Greene County, 298 F.Supp. 181 (N.D.Ala.1968). In appraising whether a jury selection procedure comes up to constitutional standards lack of cooperation by the Negro community is relevant in some contexts,...