State ex rel. Gregg v. Maples

Decision Date03 September 1970
Docket Number8 Div. 396
Citation239 So.2d 198,286 Ala. 274
PartiesSTATE of Alabama ex rel. Warren Lowe GREGG v. James Herman MAPLES, Clayton Brock and A. C. Sharp, Jr., as Members of the Jury Commission of Madison County, Alabama, et al.
CourtAlabama Supreme Court

Martinson, Manning & Martinson, Huntsville, for appellant.

Fred B. Simpson, Huntsville, for appellees.

LAWSON, Justice.

This is an appeal from a judgment of the Circuit Court of Madison County rendered on February 6, 1970, as amended by the trial court, Ex mero motu, on February 12, 1970.

The pertinent provisions of the decree, as amended, read:

'IT IS THEREFORE CONSIDERED, ORDERED, ADJUDGED and DECREED by the Court that the writ of mandamus issued by this Court on January 21, 1970, is hereby vacated and held for nought, the peremptory writ of mandamus is denied, and the order of this Court issued on September 23, 1969, is reinstated.'

The 'order' of September 23, 1969, was rendered in response to a motion filed by one Paul Allen Miller on August 21, 1969, in a criminal case, State of Alabama v. Paul Allen Miller, which was pending in the Circuit Court of Madison County. The said motion prayed for an order of the court directing the Jury Commission of Madison County to 'organize a new jury roll and to empty and refill the jury box' on the grounds that the 'present jury rolls do not contain a cross-section of citizens qualified to serve as jurors in Madison County, Alabama,' and that 'no fair and reasonably accurate method is sued by said Commission to determine the qualifications of citizens of this County to serve as jurors,' and that 'all qualified citizens of Madison County do not have an equal opportunity to be chosen for the present roll of this County.'

The District Attorney confessed the averments of said motion and consequently no evidence was adduced in support thereof.

The 'order' of September 23, 1969, which is alluded to in the amended judgment from

'STATE OF ALABAMA COMPLAINANT

VS

PAUL ALLEN MILLER DEFENDANT

ORCER

'This cause coming on to be heard upon the motion of the Defendant to call together the jury commission for the purpose of refilling the jury box and for the purpose of reorganizing the jury roll of Madison County and the Court, having heard and considered said motion, is of the opinion that the motion should be and the same is hereby granted, it is, therefore,

'ORDERED, ADJUDGED and DECREED that the following plan for refilling the jury box and reorganizing the jury roll of this county be forthwith adopted and placed into effect and operation by the jury commission of this county, and that the jury box of this county be refilled according to the following plan prior to January 1, 1970;

'JURY REFILLING AND REORGANIZATION PLAN

SECTION 1

Procedures

'(1) Voters List: The names of the registered voters of the county shall be used as the list of names required to be compiled by Section 18, Title 30, as the list of persons to be considered for jury service. From the registration records of the county a card file shall be set up to show the name, date of birth, sex, race, date of registration, and address, if available, of each person registered to vote, and such a file set up by or in the possession of the Board of Registrars shall be used as set out in this plan. The other information required to be obtained by Title 30 shall be obtained as set out in this plan.' which this appeal is taken, reads in part as follows:

Judge David R. Archer, who rendered the order of September 23, 1969, apparently undertook to amend that order, Ex mero motu, on December 16, 1969. The only changes effectuated in that part of the order of September 23, 1969, which we have set out above, by the so-called amended order of December 16, 1969, was to insert the word 'primary' before the word 'list' where it appears in line 2 of paragraph (1) and by substituting the word 'should' for the word 'shall' where that word appears for the second time in the second sentence of paragraph (1). We call attention to these changes solely for the sake of accuracy. The appellees do not place any importance on the changes, perhaps for the reason that Judge Archer's right to amend the order of September 23, 1969, Ex mero motu, on December 16, 1969, is certainly questionable.

The so-called 'Jury Refilling and Reorganization Plan,' hereinafter referred to as the 'Plan,' contains many provisions in addition to those which we have set out above, but we see no reason to include them in this opinion.

On January 21, 1970, a petition was filed in the Circuit Court of Madison County styled State of Alabama ex rel. Warren Lowe Gregg v. James Herman Maples, Clayton Brock, and A. C. Sharp, Jr., as members of the Jury Commission of Madison County, Alabama, and against A. L. Smith, as Clerk of the Jury Commission of Madison County, which petition prayed in pertinent part as follows:

'* * * that your Honor will grant an alternative writ of mandamus, directed to the Respondents in their official capacities as members of the Jury Commission of Madison County, Alabama and as Clerk of said Commission, commanding them to immediately destroy the presently existing rolls of names purporting to be the Jury Roll for Madison County, Alabama; to empty the Madison County jury box of all names which are now therein, and to immediately destroy all of the cards therein; to prepare a new Jury Roll for said County, placing thereon to the extent possible, the names of all citizens of said County between 21 years and 65 years of age who are 'generally reputed to be honest and intelligent and are esteemed in the community for their integrity, good character and sound judgment', and who are not exempted by law from jury duty, and who are not disqualified by law from jury duty; to refill said jury box with all names on said new Jury Roll prepared in compliance with the statutes of this State as the law requires; to disregard in its entirety the aforesaid order, or any subsequent order heretofore entered in said Miller case purporting to control said Jury Commission in the exercise of its official duties; and to follow exclusively the procedure prescribed by the statutes of Alabama pertaining to the enrolling of jurors, the filling of the jury box, and the conduct of their respective offices; or, to appear at a time and place designated by Your Honor, and show cause why they have not done and should not do, as commanded; and Petitioner respectfully prays for any other and further relief and for such other and further orders and judgments, including preemptory (sic) writ of mandamus to which Petitioner may be entitled under the facts above alleged.'

On the day the said petition for writ of mandamus was presented to him, Judge Archer issued a fiat to the clerk of the Circuit Court of Madison County directing her to issue an alternative writ of mandamus to each of the 'respondents to the petition and be made returnable to me on the 29th day of January, 1970, at Chambers at 10:00 a.m. in the Courthouse at Huntsville, Alabama.'

The said order or fiat contained the following language:

'The respondents are commanded to cease and desist from compiling a jury roll and from filling the jury box for use in Madison County, Alabama, under the order of September 23, 1969, and as amended and require them to retain the existing roll of names purporting to be the jury rolls for Madison County, Alabama, as compiled under the order of September 23, 1969, and to appear and show cause on the above date why the existing jury rolls of Madison County, Alabama, should not be destroyed and the jury rolls recompiled and the jury box refilled in compliance with the laws of the State of Alabama.'

Pursuant to the fiat, an alternative writ of mandamus in approximately the language last quoted was issued by the clerk on January 21, 1970, returnable on January 20, 1970.

On January 29, 1970, the members of the Jury Commission and Pat Brookbank, successor to A. L. Smith as Clerk of the Jury Commission, filed their joint answer. The allegations of the answer were not traversed by the relator, and on February 5, 1970, the parties submitted the cause to Judge Archer for judgment upon the petition and the answer filed thereto.

On February 6, 1970, Judge Archer rendered a judgment vacating the alternative writ of mandamus theretofore issued, reinstating the order entered on September 23, 1969, in the Miller case, supra. On February 12, 1970, Judge Archer rendered the amended judgment which we have set out above, wherein the peremptory writ of mandamus prayed for by the relator was expressly denied.

The question on this appeal is whether the trial court erred in vacating the alternative writ of mandamus and in denying the peremptory writ of mandamus.

Under the 'Plan' the name of no person can be placed on the jury roll in Madison County unless the name of that person appears on the registration records or lists of that county as a registered voter. This limitation is a radical departure from the statutory system enacted by the legislature of this state, which system applies to Madison County, and is repugnant to so many aspects of that system as to constitute a usurpation of the authority of the legislature.

The procedure for the selection of jurors in most of the counties of this state, including Madison, is controlled by general statutes which are set forth in the 1958 Recompiled Code of Alabama. All statutory references to the procedure for the selection of jurors in Alabama as set forth in this opinion will be to Title 30, 1958 Recompiled Code, Supra, and the 1969 Cumulative Pocket Part to Vol. 8 of that Code.

Each county in Alabama has a jury commission composed of three members appointed by the Governor, with some exceptions provided by local acts or general acts with local application. Madison County, as indicated above, is not within any such exception.

The jury commissioners are required to 'make in a well-bound...

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30 cases
  • Anderson v. State
    • United States
    • Alabama Court of Criminal Appeals
    • April 14, 1987
    ...do serve ... as a standard by which the actions of the jury commissioners can and should be judged." State ex rel. Gregg v. Maples, 286 Ala. 274, at 279, 239 So.2d 198, at 204 (1970), quoting Mitchell v. Johnson, 250 F.Supp. 117, at 122 "At common law, it was requisite that all persons serv......
  • Brewer v. State
    • United States
    • Alabama Court of Criminal Appeals
    • July 5, 1983
    ...term; it includes all acts and omissions which involve a breach of legal duty injurious to others.' " State ex rel. Gregg v. Maples, 286 Ala. 274, 280, 239 So.2d 198, 203 (1970) (quoting Inter-Ocean Casualty Co. v. Banks, 32 Ala.App. 225, 227, 23 So.2d 874, 875 (1945) (emphasis Because Mr. ......
  • Smith v. State
    • United States
    • Alabama Court of Criminal Appeals
    • October 31, 1978
    ...The purpose of Section 12-16-42 is to "protect litigants and to insure a fair trial by an impartial jury". State ex rel. Gregg v. Maples, 286 Ala. 274, 278, 239 So.2d 198, 201 (1970). We fail to see how the jury commission's meeting annually beginning in January instead of August could in a......
  • Boyle v. State
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    • Alabama Court of Criminal Appeals
    • March 29, 2013
    ...that jury venires include all qualified persons, and, hence, represent a cross-section of the community.” ’ State ex rel. Gregg v. Maples, 286 Ala. 274, 279, 239 So.2d 198 (1970) (quoting Mitchell v. Johnson, 250 F.Supp. 117 (N.D.Ala.1966) ). The code section that specifically addresses cha......
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