Turner v. Fouche

Decision Date19 January 1970
Docket NumberNo. 23,23
PartiesCalvin TURNER et al., Appellants, v. W. W. FOUCHE et al
CourtU.S. Supreme Court

[Syllabus from pages 346-347 intentionally omitted] Michael Meltsner, New York City, for appellants.

Alfred L. Evans, Jr., Washington, D.C., for appellees.

Mr. Justice STEWART delivered the opinion of the Court.

This case, a companion to Carter v. Jury Commission of Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549, involves a challenge to the constitutionality of the system used in many counties of Georgia to select juries and school boards. The basic statutory scheme at issue is this. The county board of education consists of five freeholders.1 It is selected by the grand jury,2 which in turn is drawn from a jury list selected by the six-member county jury commission.3 The commissioners are appointed by the judge of the state superior court for the circuit in which the county is located.4

Some 2,500 to 3,000 people live in Taliaferro County, Georgia, of whom about 60% are Negroes.5 The county school system consists of a grammar school and a high school, and all the students at both schools are Negroes, every white pupil having transferred elsewhere.6 Sandra and Calvin Turner, a Negro schoolchild and her father who reside in that county, brought this class action against the members of the county board of education, the jury commissioners, and three named white grand jurors.7 Their complaint alleged that the board of education consisted entirely of white people; that it had been selected by a predominantly white grand jury, which in turn had been selected by the jury commissioners, all of whom were white people. The complaint charged that the board of education had deprived the Negro schoolchildren of textbooks, facilities, and other advantages; also that the Turners and other Negro citizens had sought unsuccessfully to communicate their dissatisfaction to the board of education.

According to the appellants, the members of the county grand jury, on which white people were perennially overrepresented and Negroes underrepresented, chose only white people as members of the board of education pursuant to the Georgia constitutional and statutory provisions governing the school-board selection. The complaint attacked those provisions as accounting for both the exclusion of Negroes and nonfreeholders from the board of education, and for the merely token inclusion of Negroes on the grand juries. The appellants sought (1) an injunction prohibiting enforcement of the Georgia constitutional and statutory provisions by which the board of education and grand jury were selected; (2) a declaration that the provisions were void on their face and as applied; (3) a further declaration that the various positions on the board of education, grand jury, and jury commission were vacant; (4) the appointment of a receiver for the school system and a special master for the selection of the grand jurors; and (5) $500,000 in ancillary damages.

A three-judge District Court was convened pursuant to 28 U.S.C. §§ 2281 and 2284, and conducted extensive evidentiary hearings. The evidenced showed that whenever a jury commissioner thought a voter from his area of the county qualified as a potentially good juror, he offered the name for consideration to his fellow commissioners; if all agreed, the name went on the master jury list. No name of a county resident was placed on the list unless he was personally known to at least one of the jury commissioners. The commissioners looked for 'people that we felt would be capable of interpreting proceedings of court and * * * render(ing) a just verdict * * *.' The state superior court judge had instructed them to put Negroes on the list. Following the compilation of the list, the commissioners 'picked the ones we thought were the very best people in the county' and put them on the grand-jury list. The superior court judge then drew the names of the grand jurors at random in open court. Only he could excuse from grand-jury service those whose names he drew; and he denied that Negroes were ever excused out of turn, or on account of their race.

At its first hearing, held in January 1968, the District Court voiced its concern that only 11 Negroes had found their way to the 130-member grand-jury list. The court adjourned for one month to enable the defendants to remedy the situation. It noted that two vacancies had opened up on the board of education and that, although the board had held an interim election, the grand jury had not yet confirmed the new members. The court suggested that '(i)f those two men would willingly stand aside the other members might select two outstanding Negro citizens * * * to go on the Board.' The court also advised counsel for the defendants to explain the law of jury discrimination to his clients, and expressed the hope that the jury commissioners would be 'generous' in their recomposition of the panel.

At the adjourned hearing in February, it appeared that three days after the first hearing the state superior court judge had discharged the county grand jury and directed the jury commissioners to recompose the jury list. Work- ing from the voter registration list at the last general election,8 the commissioners had prepared a new grand-jury list containing the names of 44 Negroes and 77 white people. From this list the superior court judge drew the names that led to the impaneling of a new grand jury of 23 members, of whom only six were Negroes. Meanwhile the board of education had elected a Negro and a white man to fill the two vacancies, and the new grand jury had confirmed the new members in their offices.

Following these developments, the District Court declined to invalidate on their face either the various provisions governing the school-board and grand-jury selections, or the freeholder requirement for school-board membership. It found that at the commencement of suit Negroes had been systematically excluded from the grand juries through token inclusion, but it concluded that the new grand-jury list, drawn following the January hearing, was not unconstitutional. 290 F.Supp. 648.9

Subsequently the District Court entered a final judgment permanently enjoining the defendant jury commissioners and their successors from systematically excluding Negroes from the Taliaferro County grand-jury system. The appellants, complaining of the court's failure to hold the challenged provisions of Georgia law invalid on their face and as applied, took a direct appeal to this Court pursuant to 28 U.S.C. § 1253, and we noted probable jurisdiction, 393 U.S. 1078, 89 S.Ct. 863, 21 L.Ed.2d 770.10


The appellants urge that the constitutional and statutory scheme by which the Taliaferro County grand jury selects the board of education is unconstitutional on its face. They point to the discretion of the state superior court judge to exclude anyone he deems not 'discreet' from appointment to the jury commission, 11 and of the jury commissioners to eliminate from grand-jury service anyone they find not 'upright' and 'intelligent.'12 These provisions, the appellants say, provide the county officials an opportunity to discriminate exercised both before and after the commencement of this litigation. It is argued that the terms are so vague as to leave the judge and jury commissioners at large in the exercise of discretion, with their decisions 'unguided by statutory or other guidelines.' Only by excising the challenged terms from Georgia's laws, it is urged, can the jury discrimination revealed in the record of this case can be eliminated.

Such arguments are similar to those advanced in Carter v. Jury Commission of Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549. Our decision in that case fairly controls disposition of the contentions here. Georgia's constitutional and statutory scheme for selecting its grand juries and boards of education is not inherently unfair, or necessarily incapable of administration without regard to race; the federal courts are not powerless to remedy unconstitutional departures from Georgia law by declaratory and injunctive relief. The challenged provisions do not refer to race; indeed, they impose on the jury commissioners the affirmative duty to supplement the jury lists by going out into the county and personally acquainting themselves with other citizens of the county whenever the jury lists in existence do not fairly represent a cross section of the county's upright and intelligent citizens.13

But the appellants contend that even if the challenged provisions are not void on their face, they have been unconstitutionally applied. The District Court found that prior to the commencement of suit Negroes had been excluded in the administration of the grand-jury system, and the appellees do not contest that finding here.14 The District Court also concluded that the newly composed grand-jury list was constitutional, and the appellants challenge that ruling. Consideration of the issues thus presented requires a fuller statement of the events following the January hearing in the court below.

As noted above, after the District Court had held its first hearing, the state superior court judge discharged the grand jury then sitting and ordered the jury commissioners to draw up a new jury list. The commissioners obtained the list of all persons registered to vote in the county in the last general election 2,152 names. To assist in the identification of all the people on the list, the commissioners consulted with with 'three Negroes that (they) brought in to work with (them) one afternoon * * *.' From the list the commissioners eliminated 374 people for poor health and old age; 79 as under 21 years old;15 93 as dead; 514 as away from the county most of the time but maintaining a permanent place of residence there; 48 who requested that they be removed from consideration; 225 about whom the...

To continue reading

Request your trial
460 cases
  • Ramirez v. Brown
    • United States
    • California Supreme Court
    • March 30, 1973
    ...and underinclusive. 6 (Accord, Cipriano v. City of Houma (1969) 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647; Turner v. Fouche (1970) 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567; Evans v. Cornman (1970) 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370; Phoenix v. Kolodziejski (1970) 399 U.S. 204, ......
  • Curtis v. Board of Supervisors
    • United States
    • California Supreme Court
    • September 19, 1972
    ...Laws as an Impetus for Needed Reform (1970 Institute of Government and Public Affairs, U.C.L.A.).)18 See also Turner v. Fouche (1970) 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567, holding that the Georgia requirement that members of county boards of education be 'freeholders,' i.e., landowner......
  • People v. Superior Court (Dean)
    • United States
    • California Court of Appeals Court of Appeals
    • May 2, 1974
    ...procedures. Carter v. Jury Com. of Greene County (1970) 396 U.S. 320, 329, 90 S.Ct. 518, 24 L.Ed.2d 549; Turner v. Fouche (1970) 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567; see Comment, 20 U.C.L.A.L.Rev. 581 ...
  • Martínez v. U.S. Dep't of Health & Human Servs., CIVIL ACTION NO. 18-01206-WGY
    • United States
    • U.S. District Court — District of Puerto Rico
    • August 3, 2020
    ...similarly knowledgeable and attached. 491 U.S. 95, 107-08, 109 S.Ct. 2324, 105 L.Ed.2d 74 (1989) (citing Turner v. Fouche, 396 U.S. 346, 363-64, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970) ). Likewise, it is irrational to deny SSI benefits to all elderly, blind, or disabled residents of Puerto Rico......
  • Request a trial to view additional results
4 books & journal articles
  • Batson's Grand Jury DNA
    • United States
    • Iowa Law Review No. 97-5, July 2012
    • July 1, 2012
    ...violation of the 14th amendment.” Id. (alteration in original) (internal quotation marks omitted). 95. See, e.g. , Turner v. Fouche, 396 U.S. 346 (1970) (challenging grand jury); Jones v. Georgia, 389 U.S. 24 (1967) (challenging grand and petit jury); Whitus v. Georgia, 385 U.S. 545 (1967) ......
  • Structuring judicial review of electoral mechanics: explanations and opportunities.
    • United States
    • University of Pennsylvania Law Review Vol. 156 No. 2, December 2007
    • December 1, 2007
    ...(107) Quinn v. Millsap, 491 U.S. 95 (1989); Chappelle v. Greater Baton Rouge Air port Dist., 431 U.S. 159 (1977); Turner v. Fouche, 396 U.S. 346 (1970). Nominally, the Court applied rational basis review in these appointments decisions--but that pretense is just silly. These cases are much ......
    • United States
    • Michigan Law Review Vol. 121 No. 4, February 2023
    • February 1, 2023
    ...for persons "of good intelligence, sound judgment and fair character" (quoting MISS. Code ANN. [section] 2358 (1892))); Turner v. Fouche, 396 U.S. 346, 354 (1970) (rejecting a facial challenge to a county's limitation on grand-jury service to persons deemed "upright" and "intelligent" (quot......
  • The Supreme Court of the United States, 1969-1970
    • United States
    • Political Research Quarterly No. 23-4, December 1970
    • December 1, 1970
    ...by a pre-dominantly white grand jury which was selected by white jury commissioners. In an opinion by Justice Stewart in Turner v. Fouche (396 U.S. 346; 90 S. Ct.532) the Court (vote: 8-0) held the arrangement not unconstitutional on its facebut held that there was prima facie evidence that......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT