Tarter v. James

• Decision Date: 08 February 1982
• Docket Number: No. 81-7219,81-7219
• Citation: 667 F.2d 964
• Parties: William Odley TARTER, Jr., individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. Fob JAMES, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 964

667 F.2d 964

William Odley TARTER, Jr., individually and on behalf of all

others similarly situated, Plaintiff-Appellant, v. Fob JAMES, et al., Defendants-Appellees.

No. 81-7219.

United States Court of Appeals, Eleventh Circuit.

Feb. 8, 1982.

George H. Jones, Birmingham, Ala., for plaintiff-appellant.

Ronald C. Forehand, Asst. Atty. Gen., Montgomery, Ala., Earl Morgan, Dist. Atty., Stephen Mahon, Asst. Dist. Atty., Jefferson County, Kenneth Gomany, Deputy Dist. Atty., Birmingham, Ala., Elizabeth Ann Evans, Asst. Atty. Gen., Montgomery, Ala., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before THORNBERRY, ^* FAY and HATCHETT, Circuit Judges.

PER CURIAM:

The judgment is AFFIRMED based upon the Memorandum Opinion entered by the trial court on February 23, 1981 and attached hereto.

MEMORANDUM OPINION

This action for declaratory judgment and equitable relief attacks as unconstitutional Volume 14, Section 714, Appendix, Code Ala. (1940) (Recompiled, 1958), as retained by Code Ala., § 1-1-10 (1975), which provides, inter alia, that defendants in criminal cases in Alabama counties having a population of 400,000 or more are entitled to one jury strike for each strike permitted the prosecution during jury selection (hereinafter referred to as the "one-for-one" statute). The basis for plaintiff's claim is that, in the absence of this "one-for-one" statute, he would have been allocated two jury strikes for each one allocated to the prosecution, as is otherwise provided for in Code Ala., § 12-16-122 (1975).

The challenged statute applies only to Jefferson County, Alabama. Plaintiff contends that this disparity of treatment between Jefferson County criminal defendants and those in other counties violates his rights guaranteed under the fifth, sixth, seventh and fourteenth amendments to the United States Constitution. The particular rights are not specified. It would appear, giving the complaint the most charitable reading, that plaintiff claims a denial of his right to due process (fifth and fourteenth amendments), trial by impartial jury (sixth amendment), and equal protection (fourteenth amendment). The seventh amendment guaranteeing jury trials in common law civil actions is not applicable.

Plaintiff also contends that the "one-for-one" statute violates similar state constitutional provisions, specifically Article I, §§ 6, 11 and 13 of the Constitution of Alabama, 1901. These provide:

That in all criminal prosecutions, the accused has a right to be heard by himself and counsel, or either; to demand the nature and cause of the accusation; and to have a copy thereof; to be confronted by the witnesses against him; to have compulsory process for obtaining witnesses in his favor; to testify in all cases, in his own behalf, if he elects so to do; and, in all prosecutions by indictment, a speedy, public trial, by an impartial jury of the county or district in which the offense was committed; and he shall not be compelled to give evidence against himself, nor be deprived of life, liberty, or property, except by due process of law; but the legislature may, by a general law, provide for a change of venue at the instance of the defendant in all prosecutions by indictment, and such change of venue, on application of the defendant, may be heard and determined without the personal presence of the defendant so applying therefor; provided, that at the time of the application for the change of venue, the defendant is imprisoned in jail or some legal place of confinement.

Ala.Const. art. I, § 6.

That the right of trial by jury shall remain inviolate.

Ala.Const.1901, art. I, § 11.

That all courts shall be open; and that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial or delay.

Ala.Const.1901, art. I, § 13.

There are no state constitutional rights sought to be vindicated which are not also protected by the federal constitution. (Plaintiff argues state constitutional deficiencies in his brief which are not alleged in the complaint, and consequently were not considered by the court.) Plaintiff's claim therefore may be divided into three parts: due process, equal protection, and trial by jury.

The court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1343 and 2201.

FEDERAL CONSTITUTIONAL CHALLENGES

In Missouri v. Lewis, 101 U.S. 22 (1879), the Supreme Court upheld a Missouri statutory scheme challenged as a denial of equal protection. The Missouri Constitution and statute in question provided for direct appeal to the Missouri Supreme Court from the final judgment or decree of any circuit court in the state except for those in four named counties and the City of St. Louis. A separate appellate court vested with exclusive jurisdiction over appeals and writs of error was established for these four counties and city. An appeal to the State Supreme Court from this intermediate appellate court would lie only in cases where the amount in dispute exceeded $2,500, in cases involving the construction of the federal or state constitution, and in some other enumerated cases of special character. Thus, the statutory scheme, in some situations, allowed no appeal to the State Supreme Court in a case arising in the specified four counties and city, while a direct appeal would lie in a similar case arising in the circuit court of any other county in the state.

The Court held the scheme to be constitutionally permissible under the equal protection clause of the fourteenth amendment:

We might go still further, and say, with undoubted truth, that there is nothing in the Constitution to prevent any State from adopting any system of laws or judicature it sees fit for all or any part of its territory. If the State of New York, for example, should see fit to adopt the civil law and its method of procedure for New York City and the surrounding counties, and the common law for the rest of the State, there is nothing in the Constitution of the United States to prevent its doing so. This would not, of itself, within the meaning of the Fourteenth Amendment, be a denial to any person of the equal protection of the laws. If every person residing or being in either portion of the State should be accorded the equal protection of the laws prevailing there, he could not justly complain of a violation of the clause referred to. For, as before said, it has respect to persons and classes of persons. It means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and under like circumstances.

The Fourteenth Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two States separated only by an imaginary line. On one side of this line there may be a right of trial by jury, and on the other side no such right. Each State prescribes its own modes of judicial proceeding. If diversities of laws and judicial proceedings may exist in the several States without violating the equality clause in the Fourteenth Amendment, there is no solid reason why there may not be such diversities in different parts of the same State.

101 U.S. at 31 (emphasis added).

In Hayes v. Missouri, 120 U.S. 68, 7 S.Ct. 350, 30 L.Ed. 578 (1887), the Supreme Court upheld a Missouri statute which provided that, in capital cases arising in cities with a population of over 100,000, the prosecution was entitled to fifteen peremptory jury challenges, while elsewhere in the state it was allowed only eight. The Court stated:

The constitution of Missouri, and, indeed, of every state of the Union, guaranties to all persons accused of a capital offense, or of a felony of lower grade, the right to a trial by an impartial jury, selected from the county or city where the offense is alleged to have been committed; and this implies that the jurors shall be free from all bias for or against the accused. In providing such a body of jurors, the state affords the surest means of protecting the accused against an unjust conviction, and at the same time of enforcing the laws against offenders meriting punishment. To secure such a body numerous legislative directions are necessary, prescribing the class from whom the jurors are to be taken, whether from voters, tax-payers, and freeholders, or from the mass of the population indiscriminately; the number to be summoned from whom the trial jurors are to be selected; the manner in which their selection is to be made; the objections that may be offered to those returned, and how such objections shall be presented, considered, and disposed of; the oath to be administered to those selected; the custody in which they shall be kept during the progress of the trial; the form and presentation of their verdict; and many other particulars. All these, it may be said in general, are matters of legislative discretion. But to prescribe whatever will tend to secure the impartiality of jurors in criminal cases is not only within the competency of the legislature, but is among its highest duties. It is to be remembered that such impartiality requires, not only freedom from any bias against the accused, but also from any prejudice against his prosecution. Between him and the state the scales are to be evenly held.

Experience has shown that one of the most effective means to free the jurybox from men unfit to be there is the exercise of the peremptory challenge. The public prosecutor may have the strongest reasons to distrust the character of a juror offered, from his habits and associations, and yet find it difficult to formulate and sustain a legal objection to him. In such cases, the peremptory challenge is a protection against his being...