Wiggins v. Haynes, 30995 Summary Calendar.

• Citation: 439 F.2d 848
• Decision Date: 26 May 1971
• Docket Number: No. 30995 Summary Calendar.,30995 Summary Calendar.
• Parties: Charlie WIGGINS, Carswell Duggan, Jr., et al., Plaintiffs-Appellants, v. Harris HAYNES, Gilbert Dean, Jack H. Garrett, Herman Layton, Marvin Hartley and Charles Tyson, as members of the Jury Commission of Washington County, Georgia, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

439 F.2d 848 (1971)

Charlie WIGGINS, Carswell Duggan, Jr., et al., Plaintiffs-Appellants, v. Harris HAYNES, Gilbert Dean, Jack H. Garrett, Herman Layton, Marvin Hartley and Charles Tyson, as members of the Jury Commission of Washington County, Georgia, et al., Defendants-Appellees.

No. 30995 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

March 12, 1971.

Rehearing Denied and Rehearing Denied May 26, 1971.

Thomas M. Jackson, Macon, Ga., Howard Moore, Jr., Peter E. Rindskopf, Atlanta, Ga., Norman C. Amaker, Jack Greenberg, New York City, for plaintiffs-appellants.

Denmark Groover, Jr., Byrd, Groover & Buford, Macon, Ga., for defendants-appellees.

Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied May 26, 1971.

PER CURIAM:

Plaintiffs-appellants brought this action in the district court alleging racial discrimination in the composition of the grand and traverse jury lists for Washington County, Georgia, and in the absence of Negro jury commissioners for the county. The district court, noting changes made by the county in the selection of jury commissioners and compilation of jury lists subsequent to the filing of the suit but prior to the ruling of the court, concluded in an opinion dated September 2, 1970, that the defendants had not discriminated on the basis of race. (See Appendix A). Accordingly, the district court denied the prayers for relief. We have examined the briefs and the record and have determined that the evidence supports the findings and conclusions of the district court.

Affirmed.

APPENDIX A

(Style and number omitted)

BOOTLE, Chief Judge:

In this class action the plaintiffs attack the jury lists and the method of selecting jurors and the method of naming jury commissioners in Washington County, Georgia. The five first named defendants were jury commissioners at the time the complaint was filed. Since then the Judge of the Superior Court has named a new commission of six members and they have been substituted as parties defendants as follows: Harris Haynes, Gilbert Dean, Jack H. Garrett, Herman Layton, Marvin Hartley and Charles Tyson.

Count One attacks specifically the jury lists and alleges that the failure of the defendants to enroll plaintiffs and the members of their class on the jury lists "is the result of the deliberate and systematic exclusion and limitation by defendants of the number of Negro citizens resident in Washington County who are called for service on juries."

Count Two attacks specifically the composition of the jury commission and alleges that plaintiffs and their class have never been named to the commission "because of the pattern and practice of racial exclusion and segregation of blacks in Washington County, Georgia, including the entire process of jury selection," and alleges further that within memory the Judges of the Superior Court of Washington County, Georgia have never appointed a black person to serve on the commission.

The prayers are, in substance, that the jury commission be dissolved; that the Superior Court Judge be required to appoint plaintiffs and members of their class as members of a new jury commission; and that the present jury lists be dissolved and new jury lists be compiled.

Shortly after this suit was filed the Supreme Court decided Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970), which disposes of Count Two of the complaint by holding that a mere failure to appoint black commissioners in the past does not establish discrimination and would certainly constitute no justification for federal courts' instructing a state court to make such appointments even assuming that under any circumstances a state court judge's discretion could be so controlled. The evidence in this case fails to show any intentional discrimination in the matter of appointment of jury commissioners. Indeed, it so happens that in appointing a new commission shortly after this suit was filed the Judge of the Superior Court named to that commission two black members and four white members.

The pertinent facts with respect to this jury selection process are as follows: According to the 1960 census blacks constitute 49.5 per cent of the adult population of the county. After the filing of this suit the Judge of the Superior Court inquired as to the number of names on the registered voters' list used in the last preceding general election, this being the list which commissioners are required to use in compiling jury lists, Ga.Code Ann. 59-106, and was informed that this list contained 3,417 black voters and 5,789 white voters, the percentage of black being 37. He learned also that in the last jury revision the old list of names obtained from the tax digest had been retained and simply supplemented by new names from the registered voters' list, and he knew therefore that under the holding of Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967) a new jury list had to be compiled. Accordingly, he appointed the new commission and this commission immediately went to work in compiling a new list. They held six or eight meetings as a body and worked on their task on the following days: January 13, 29, February, 16, 17, 18, 20, 23, 24, 25, 27, March 2, 3, 4, 6, 9, 10, and 17, 1970. At the beginning of their work they were instructed by the Judge of the Superior Court who read to them the appropriate statutes including Ga.Code Ann. 59-106, which reads as follows:

"Revision of jury lists. Selection of grand and traverse jurors. — At least biennially, or, if the judge of the superior court shall direct, at least annually, on the first Monday in August, or within 60 days thereafter, the board of jury commissioners shall compile and maintain and revise a jury list of intelligent and upright citizens of the county to serve as jurors. In composing such list the commissioners shall select a fairly representative cross-section of the intelligent and upright citizens of the county from the official registered voters\' list which was used in the last preceding general election. If at any time it appears to the jury commissioners that the jury list, so composed, is not a fairly representative cross-section of the intelligent and upright citizens of the county, they shall supplement such list by going out into the county and personally acquainting themselves with other citizens of the county, including intelligent and upright citizens of any significantly identifiable group in the county which may not be fairly representative thereon.

"After selecting the citizens to serve as jurors, the jury commissioners shall select from the jury list a sufficient number of the most experienced, intelligent and upright citizens, not exceeding two-fifths of the whole number, to serve as grand jurors. The entire number first selected, including those afterwards selected as grand jurors, shall

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