Turner v. Spencer

• Decision Date: 30 November 1966
• Docket Number: 3872-65,3945-65.,Civ. A. No. 3871-65
• Parties: Albert TURNER et al., Plaintiffs, and United States of America, by Nicholas de B. Katzenbach, Attorney General, Plaintiff-Intervenor, v. V. K. SPENCER, Robert Woodson and C. C. Hughey, as members of the Jury Commission of Perry County, Alabama, and each of their successors in office, Defendants. Lewis BLACK et al., Plaintiffs, and United States of America, by Nicholas de B. Katzenbach, Attorney General, Plaintiff-Intervenor, v. Clarence CURB, Allen Thomas, and Martin Luther Mills, as members of the Jury Commission of Hale County, Alabama, and each of their successors in office, Defendants. Jack McNEIR et al., Plaintiffs, and United States of America, by Nicholas de B. Katzenbach, Attorney General, Plaintiff-Intervenor, v. Carl AGEE, S. C. Capell and Fred Bain Henderson, as members of the Jury Commission of Wilcox County, Alabama, and each of their successors in office, Defendants.
• Court: U.S. District Court — Southern District of Alabama

261 F. Supp. 542

Albert TURNER et al., Plaintiffs, and United States of America, by Nicholas de B. Katzenbach, Attorney General, Plaintiff-Intervenor, v. V. K. SPENCER, Robert Woodson and C. C. Hughey, as members of the Jury Commission of Perry County, Alabama, and each of their successors in office, Defendants.

Lewis BLACK et al., Plaintiffs, and United States of America, by Nicholas de B. Katzenbach, Attorney General, Plaintiff-Intervenor, v. Clarence CURB, Allen Thomas, and Martin Luther Mills, as members of the Jury Commission of Hale County, Alabama, and each of their successors in office, Defendants.

Jack McNEIR et al., Plaintiffs, and United States of America, by Nicholas de B. Katzenbach, Attorney General, Plaintiff-Intervenor, v. Carl AGEE, S. C. Capell and Fred Bain Henderson, as members of the Jury Commission of Wilcox County, Alabama, and each of their successors in office, Defendants.

Civ. A. Nos. 3871-65, 3872-65, 3945-65.

United States District Court S. D. Alabama, N. D.

November 30, 1966.

Charles Morgan, Jr., Atlanta, Ga., Orzell Billingsley, Jr., Birmingham, Ala., Melvin L. Wulf, New York City, for plaintiffs.

John Doar, Asst. Atty. Gen., Frank M. Dunbaugh, Dept. of Justice, Washington, D. C., Charles Quaintance, Selma, Ala., George G. Rayborn, Jr., Dept. of Justice, Washington, D. C., for intervenor.

Richmond M. Flowers, Atty. Gen., Robert P. Bradley, Asst. Atty. Gen., Leslie Hall, Asst. Atty. Gen., W. B. Arbuthnot, County Sol., Perry County, Marion, Ala., Richard H. Poellnitz, County Sol., Hale County, Greensboro, Ala., for defendants.

Pitts & Pitts, Selma, Ala., and Virgis Ashworth, Centreville, Ala., for L. S. Moore, Judge Fourth Judicial Circuit.

DANIEL HOLCOMBE THOMAS, Chief Judge.

STATEMENT OF THE CASE

Each of these cases is a class action brought by Negro citizens residing in Hale, Wilcox and Perry Counties, Alabama, against the members of the jury commission in the respective counties. The plaintiffs allege that the defendants have systematically excluded Negroes from jury service. The United States of America, pursuant to Title 42, Section 2000h-2, United States Code, and Rule 24(b) of the Federal Rules of Civil Procedure, intervened as a plaintiff.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The existence of a pattern and practice of exclusion of Negroes from jury service in the counties is virtually uncontroverted. The court does not deem it necessary to belabor this issue with a wealth of statistical data.

The applicable law is equally clear and uncontroverted on the constitutional issue. The cases holding the exclusion of Negroes from jury service to be unconstitutional under the Due Process clause or the Equal Protection clause are legion. See Strauder v. State of West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880) (Negroes prohibited by statute); Neal v. State of Delaware, 103 U.S. 370, 26 L.Ed. 567 (1881) (No Negroes for jury service); Bush v. Commonwealth of Kentucky, 107 U.S. 110, 1 S.Ct. 625, 27 L.Ed. 354 (1883) (Negroes prohibited by statute); Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935) (No Negroes called within memory); Hollins v. State of Oklahoma, 295 U.S. 394, 55 S.Ct. 784, 79 L.Ed. 1500 (1935) (No Negroes called for jury service); Hale v. Commonwealth of Kentucky, 303 U.S. 613, 58 S.Ct. 753, 82 L.Ed. 1050 (1938) (No Negroes called for 30 years); Pierre v. State of Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939) (One Negro called within memory); Smith v. State of Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940) (Eighteen Negroes called in 7 years); Hill v. State of Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942) (No Negroes called for 16 years); Patton v. State of Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76 (1947) (Three Negroes called in 30 years); Cassell v. State of Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950) (Twenty-one Negroes served in 6 years); Hernandez v. State of Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954) (No Mexicans served for 25 years); Reece v. State of Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955) (Six Negroes called in 18 years); Eubanks v. State of Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed. 2d 991 (1958) (One Negro served in 18 years); Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77 (1964) (One Negro served in 24 years).

The greatest divergence of opinion is found in the method of enforcement of these constitutional mandates.

The court has reviewed similar cases and has found the form of relief to be composed of two categories. The chief difference lies in the latitude of responsibility which is given to the jury commissioners in the application of the "subjective" standards required by Alabama law. The jury commission shall place on the jury roll "the names of all citizens of the county who are generally reputed to be honest and intelligent and are esteemed in the community for their integrity, good character, and sound judgment." Title 30, Sec. 21, Code of Alabama, (as amended by Act No. 285, Special Session 1966). Obviously, there is room for arbitrary refusal to include certain names in the jury box under the guise of enforcement of the above-quoted provision. Rather than strip all such responsibility from the jury commissioners, this court will admonish the defendant commissioners that it stands ready to take such action, if the responsibility and trust herein reposed is abused.

The relief to be afforded in these cases will involve not only the issuance of a prohibitory injunction, but an injunction requiring immediate affirmative action by the jury commissioners by their emptying the Hale, Wilcox and Perry county jury boxes and abandoning the present jury roll without any further use of either, and by their compiling a...