Turner v. Fouche, Civ. A. No. 1357.

• Decision Date: 05 August 1968
• Docket Number: Civ. A. No. 1357.
• Citation: 290 F. Supp. 648
• Parties: Calvin TURNER, and Sandra Juanita Turner, a minor by Calvin Turner, her father and next friend, and all others similarly situated, Plaintiffs, v. W. W. FOUCHE, Rastus Durham, and Elmo Bacon, Individually, and as representatives of the class of persons known as Grand Jurors of Taliaferro County, Georgia; Cranston Jones, W. A. Drinkard, Carl Chapman, H. E. Williams, Jr., and Mrs. Willie Mae Fambrough, Individually, and as Members of the Board of Education of Taliaferro County, Georgia; E. C. Moore, Guy Beazley, J. M. Taylor, L. T. Lunceford, and Clarence Griffith, Individually, and as Jury Commissioners of Taliaferro County, Georgia, Defendants.
• Court: U.S. District Court — Southern District of Georgia

290 F. Supp. 648

Calvin TURNER, and Sandra Juanita Turner, a minor by Calvin Turner, her father and next friend, and all others similarly situated, Plaintiffs, v. W. W. FOUCHE, Rastus Durham, and Elmo Bacon, Individually, and as representatives of the class of persons known as Grand Jurors of Taliaferro County, Georgia; Cranston Jones, W. A. Drinkard, Carl Chapman, H. E. Williams, Jr., and Mrs. Willie Mae Fambrough, Individually, and as Members of the Board of Education of Taliaferro County, Georgia; E. C. Moore, Guy Beazley, J. M. Taylor, L. T. Lunceford, and Clarence Griffith, Individually, and as Jury Commissioners of Taliaferro County, Georgia, Defendants.

Civ. A. No. 1357.

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

August 5, 1968.

Howard Moore, Jr., and Peter Rindskopf, Atlanta, Ga., for plaintiffs.

Charles J. Bloch and Wilbur D. Owens, Jr., Macon, Ga., for defendants.

Alfred E. Evans, Asst. Atty. Gen., Atlanta, Ga., for the State of Georgia.

Before BELL, Circuit Judge, and SCARLETT and MORGAN, District Judges.

OPINION AND ORDER

PER CURIAM:

This case is quasi-sequential to Turner v. Goolsby, S.D. Ga., 1966, 255 F.Supp. 724, also a three-judge matter, and that case is referred to as background. See also United States v. Jefferson County Board of Education, 5 Cir., 380 F.2d 385, dissenting opinion, p. 416, fn. 6. These decisions point to the fact that the Taliaferro County school system is desegregated to the extent that there is only one grammar school and one high school in the entire system but there are no white children attending the public school system.¹ On the other hand, the school board members are all of the white race. This set of circumstances led to the instant class action brought by a Negro school child and her father on behalf of all Negro residents of Taliaferro County, Georgia, similarly situated. Another father and his five school children were added later as parties plaintiff.

The thrust of the complaint is that the Negroes have no voice in school management and affairs in that there are no Negroes on the school board. It is contended that Art. VIII, § V, ¶ I of the Constitution of the State of Georgia of 1945, Ga.Code Ann. § 2-6801, and Ga. Code Ann. §§ 32-902, 902.1, 903 and 905, all having to do with the election of county school boards by the grand jury, are unconstitutional under the equal protection and due process clauses of the Fourteenth Amendment and under the Thirteenth Amendment, both facially and as applied by reason of the systematic and long continued exclusion of Negroes and non-freeholders as members of the Board of Education of Taliaferro County, Georgia, and on the selecting grand juries. The same contention is made with respect to the Georgia laws regarding the appointment of and service as jury commissioners. Ga.Code Ann. § 59-101 and 106 (Ga.Laws 1967, p. 251, Vol. 1). Here again unconstitutionality in application is asserted on the bais of systematic exclusion of members of the Negro race from service as jury commissioner. Unconstitutionality is claimed also by reason of the alleged uncertainty, indefiniteness, and vagueness of the standards set forth in each of the statutes.²

Complainants seek an order declaring the aforesaid Georgia Constitutional provision and statutes unconstitutional on their face and as applied, and they also pray for ancillary money damages in the amount of $500,000 to compensate them for past deprivations and denials of federal rights. By amendment they pray for attorneys' fees.

Defendants named in the complaint are the members of the Board of Education of Taliaferro County and the jury commissioners of Taliaferro County. Additionally, three citizens of Taliaferro County were sued individually and in their capacity as grand jurors of Taliaferro County but they were dismissed by an order entered on January 30, 1968 granting a motion to dismiss for failure to state a claim against them upon which relief could be granted.

A three-judge District Court was convened under 28 U.S.C.A. §§ 2281 and 2284. The case was heard on January 23, 1968. The evidence indicated and the court announced then and now so finds that Negroes were being systematically excluded from the grand juries through token inclusion. Jurors were being selected by the jury commissioners from the voter registration lists as required by the Georgia statute, Ga. Code § 59-106, supra. The number of Negro and white voters in the county were substantially the same. It developed that there were 272 whites and 56 Negroes on the traverse jury list; 119 whites and only 11 Negroes on the grand jury list. It appeared also without contradiction that jury commissioners were all white and that the members of the Board of Education were all white. The grand jury situation was such that Negroes had little chance of appointment to the school board.

The hearing was adjourned and Charles J. Bloch, Esq., of counsel for the defendants, was directed by the court, pending the continued hearing, to familiarize the defendants with the provisions of law relating to the prohibition against systematically excluding Negroes from the jury system. The hearing was resumed on February 23, 1968 and Mr. Bloch reported to the court and introduced evidence to the effect that Honorable R. L. Stephens, Judge of the Superior Court of Taliaferro County, Georgia had, by order dated January 26, 1968, discharged the grand jury and required that the jury lists, both traverse and grand, be revised in light of the oral pronouncement by this court that the grand jury master list was illegally composed. The jury commissioners were directed by Judge Stephens to immediately recompose the jury lists. The following is from the report filed on behalf of the jury commissioners. This report was substantiated by the testimony of the chairman of the jury commissioners and stands uncontradicted.

"The Jury Commissioners met beginning on the Monday following the order, to wit, January 29, 1968. They had for their consideration the list of persons who were registered to vote in the last general election. That list contained a total of 2,152 names. We are advised that the Jury Commissioners considered each and every name in that list. When the Commissioners did not have any information with respect to a particular individual, they asked other people in the community about him or her. In particular, when they did not know about persons of the Negro race, they asked Negro people about them. In considering each and every name they eliminated the following numbers of names without regard to race for the following reasons:

                Poor Health and over-age              374
                Under 21 years of age                  79
                Dead                                   93
                Persons who maintained Taliaferro
                County as a permanent
                

                place of residence but were most
                of the time away from the county            514
                Persons who requested to be
                eliminated from consideration                48
                Persons about whom information
                could not be obtained                       225
                Persons of both the white and
                Negro race who were rejected by
                the Jury Commissioners as not
                conforming to the statutory qualifications
                for juries either because
                of their being unintelligent
                or because of their not being upright
                citizens                                    178
                Names on voters lists more than
                once                                         33
                

"This left a total of 608 names. Since 608 names are more than the Jury Commissioners deemed to be needed in the traverse jury box, they arranged these 608 names in alphabetical order, and took every other name on the list alternately and placed those names on the traverse jury list. This left a total of 304 names, and only then did the

...