Simmons v. Jones

• Citation: 317 F. Supp. 397
• Decision Date: 01 October 1970
• Docket Number: Civ. A. No. 1018.
• Parties: Robert W. SIMMONS, Plaintiff, v. W. M. JONES, Ernest Walker, Remer Dasher, William Smith, Wayne Golden and Oscar Davis, Jury Commissioners for Long County, Georgia, Defendants.
• Court: U.S. District Court — Southern District of Georgia

317 F. Supp. 397

Robert W. SIMMONS, Plaintiff, v. W. M. JONES, Ernest Walker, Remer Dasher, William Smith, Wayne Golden and Oscar Davis, Jury Commissioners for Long County, Georgia, Defendants.

Civ. A. No. 1018.

United States District Court, S. D. Georgia, Brunswick Division.

October 1, 1970.

Frank W. Seiler, Walter C. Hartridge, II, Charles H. Wessels, Savannah, Ga., for plaintiff.

Richard Phillips, Ralph L. Dawson, Ludowici, Ga., for defendants.

ORDER

LAWRENCE, Chief Judge.

In this case plaintiff attacks the administration of the jury laws in Long County, Georgia. Jurisdiction is based on 28 U.S.C. § 1343(3)¹ and on the Civil Rights Act, including 42 U.S.C. § 1983.² The defendants in the present case are the jury commissioners of Long County.

Plaintiff who is the defendant in a damage suit pending in the Superior Court seeks an injunction against prosecution of all actions, civil and criminal, until the unconstitutional method of selecting traverse jurors is corrected. The complaint also seeks relief in the way of an order requiring the commissioners to carry out the requirements of the law as to juries so as to insure plaintiff and parties litigant protection of their constitutional rights. Further relief is sought in the form of a declaration that the method of selecting traverse jurors presently used by the commissioners contravenes the Fourteenth Amendment.

When the complaint was presented I declined to restrain the Judge of the Superior Court from proceeding with jury trials at the September Term. I suggested, however, that, if he saw fit, they might be continued pending a hearing and determination of the issues in this Court. Judge Caswell who was very cooperative thereupon adjourned the September Term to a later date.

On August 20, 1970, an evidentiary hearing was held in this Court. Before dealing with the evidence it may be helpful to review the background of the case.

Jury commissioners in Georgia are appointed by the judges of the superior courts. Code § 59-101. For reasons not immediately apparent, that Section was amended in 1962 by the passage of a general bill with local application. The amendment affected only counties with a population of not less than 3600 and not more than 4500. It applied only to Long County.

Under the provisions of the Act of 1962 the terms of jury commissioners in counties affected thereby were terminated immediately and the superior court judge was authorized to appoint six new commissioners. The appointments were to be made by him from a list of discreet persons recommended by the county commissioners—six persons for two jury commissioners appointed to two-year terms; six for the two four-year term appointees and six for the two commissioners having six-year terms. See Georgia Laws, 1962, pp. 6-8. Pursuant to this special law, six jury commissioners were appointed by the judge on the basis of recommendations submitted to him by the county commissioners.

At the September Term, 1969, the case of Simmons v. Gordon was scheduled for trial in Long Superior Court. Before trial, defendant's counsel filed a challenge to the array. It attacked the constitutionality of the 1962 amendment on various grounds, including denial of due process under the Fourteenth Amendment and the contention that the Act constituted special legislation interdicted by the Georgia Constitution.

Defendant's challenge to the array was denied after a hearing. The trial of the case was continued and a certificate for immediate review was signed by Judge Caswell. The appeal was argued in the Supreme Court of Georgia on January 13, 1970.

Less than a week later a bill was introduced in the General Assembly to repeal the 1962 Act. It was enacted into law on February 6, 1970. Under the repealing Act the superior court judge in any county affected by the 1962 amendment was authorized to appoint jury revisors and to order a revision of the jury list. See Georgia Laws, 1970, pp. 10-12. Subsequently, the Supreme Court dismissed the appeal on the ground that the repeal of the law rendered the only issue in the case moot. Simmons v. Gordon, 226 Ga. 162, 173 S.E.2d 223.³

Following the repeal of the 1962 Act, Judge Caswell appointed new commissioners. They met on February 14, 1970. After being sworn in they were instructed in their duties by the Ordinary of the County. The commissioners remained in session all day on Saturday and met again on Monday. There is, to say the least, a good deal of conflict as to what they did or did not do.

What they were supposed to do was to implement the legislation enacted by the General Assembly in 1967. Prior to that time the law provided that commissioners should select as traverse jurors "upright and intelligent citizens" from the books of the tax receiver. In what appears to be a reaction to the Supreme Court's ruling in Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599, the General Assembly amended Ga.Code § 59-106 in 1967. The new law provides that in compiling, maintaining and revising a jury list of "intelligent and upright citizens" the commissioners shall select "a fairly representative cross-section" from the official registered voters' list used at the last general election. In accomplishing that object jury commissioners are required, if at any time the list compiled appears not to be a representative cross-section, to supplement same by going out into the county and personally acquainting themselves with other citizens, including those of "any significantly identifiable group" which may not be fairly represented.

The Chairman of the jury commission testified that when the commissioners met on February 14th of this year they were handed a voters' registration list; that they checked it and picked therefrom names of persons they thought are qualified to serve as jurors. The Clerk wrote down the names selected on a pad. All of the commissioners had a "free run of the list" but each commissioner generally concerned himself with the Militia District in which he resided. The Chairman himself selected 75 persons.

Another jury commissioner testified that there were no names in the jury box when they started and that only the voters' registration list was used by them. He says that the persons they selected for jury service were those "we thought were good citizens." Both of the commissioners who took the stand denied that the commissioners had before them the old jury list. Plaintiff claims that the evidence irrefutably shows that the old jury list was the basis of the recompilation.

There are 420 persons on the present list. Of these names 72% were on the old list. I cannot say, in the face of the denials by those commissioners who testified, that the previous jury list was resorted to in February in compiling the new one. However, there was testimony from Eugene S. Caison to the effect that no less than 160 names are on the new jury list which appeared in another form on the list of registered voters. For example, the new jury list contains the name I. M. Hendrix and so did the old list. On the voters' registration list he appears as Bill Hendrix. The Chairman testified that he himself made the change in question. The name of Ronald D. Baggs on the jury list is shown as R. D. Baggs on the voters' list.⁴ As already stated, the undisputed testimony was that there are 160 cases in which the name appears on the old jury list rather than as shown on the voters' registration list. In 19 instances there are persons on the revised jury list who are not registered voters in the County.

Mr. Caison testified that 49% of the persons on the revised jury list (206 jurors) are immediately related to some other juror or jurors on the list. When the list was revised in 1970 the names of 105 jurors were eliminated. The replacements in many cases were a son for a father, a brother for a brother, a sister for a sister, or a wife for a husband.

There are 2,707 registered voters in Long County. In the past eleven years a total of only 527 citizens have served on juries. During that span one juror served 10 times. A considerable number served 7, 8 or 9 times in that period.

The law exempts from jury duty persons who are 65 years of age or older unless they file a written request to serve. The existing jury list contains the names of at least 30 persons over the age limit. One juror is 88 years old and deaf. A juror who is 76 years of age, two jurors aged 75, two 71 and two aged "over sixty five" furnished affidavits to the effect that they had never requested their names to be included on the list. An affidavit by Eugene S. Caison filed after the hearing states that most of the jurors over sixty-five do not respond to summons. A number of the overage jurors who signed waivers of exemption are either former public employees or are now publicly employed. For the most part they respond when summoned for jury duty.

The jury commissioners seem to possess a predilection for office holders and law enforcement officers. The present jury list includes a State game warden, all policemen, a State revenue officer, a State patrolman, the sheriff and most of his deputies, a justice of the peace, the Ordinary, a city councilman, and other public officials. On September 18, 1969, thirty-seven jurors signed waivers of exemption from jury service because of official position or age.⁵ In an affidavit filed after the hearing Mr. Caison claims that the signatures waiving exemption were obtained by solicitation rather than by voluntary action and was carried out by local law enforcement officers.

Plaintiff contends that the selection of jurors is and has been politically motivated. There was testimony that out of 31 members of the "Long County Men's Club," an organization formed for the "betterment" of the County, only three are on the jury list and the name of one of them was included before 1970. Evidence was presented that requests were signed that year by 63 voters,...