Jurisdictional Statement — Edwards v. Healy

Supreme Court of the United States

OCTOBER TERM, 1973

Hon. EDWIN EDWARDS, GOVERNOR

OF LOUISIANA, Et Al.,

Appellants,

V.

MARSHA B. HEALY, Et Al.,

Appellees.

On Appeal From the United States District Court

For the Eastern District of Louisiana

JURISDICTIONAL STATEMENT AND APPENDIX

ON BEHALF OF APPELLANTS

WILLIAM J. GUSTE, JR.,

Attorney General of Louisiana.

WARREN E. MOULEDOUX,

First Assistant Attorney General

of Louisiana.

Attorneys for Appellants

P. O. Box 44005

Baton Rouge, Louisiana 70804

i

TABLE OF CONTENTS

PAGE

Jurisdictional Statemnennte . 1

/ Ad 2

/ A Tects alam tac tating 2

Constitutional and Statutorial Provisions .............. 3

SE ee ev 4

Statement of the Case m 5

The Questions are Substantiasse 6

. 7

7 aie cS 8

Appendix:

A—Opinion of United States District Court

for the Eastern District of Louisiana .............. 9

B—Judgment of the United States District

Court for the Eastern District of

0 ——T—————— 26

C Stay of Execution of Judgment 30

D—Notice of Appeal to United States

. 3. TE 33

Cases Cited

Alexander v. Louisiana, 405 U.S. 625 (1972) 7

Anderson v. Martin, 375 U.S. 399 (1964) 2

Hoyt v. Florida, 368 U.S. 57 (1961772 5, 6

Palmetto Fire Insurance Company v. Connecticut,

272 U.S. 295 (1926) 3 3

Radio Corporation of America v. United States,

D.C. III., 95 F. Supp. 660, aff'd,

341 U.S. 412 (19500) * 2

State v. Alexander, 255 La. 941,

233 So. 2d 891 (1970) 6

ii

PAGE

State v. Amphy, 259 La. 161, 249

I 7

State v. Comeaux, 252 La. 481, 211 So.2d

r 6

State v. J. C. Curry, 262 La. 280,

II 6

State v. Daniels, 262 La. 475, 263

Re er cee ae 3 6

State v. Enloe, 276 So. 2d 283 (1973) 6

State v. Millsap, 258 La. 883,

e _. ; eee 6

State v. Pratt, 255 La. 919, 233

D 6

State v. Reese, 250 La. 151, 194 So. 2d

729, cert. denied, 389 U.S. 996 (1967) 6

State v. Sinclair, 258 La. 84, 245 So.2d

„ a ned Stina’ 6

Constitutions Cited

United States Constitution,

Fourteenth Amendment 4

. 1, 3, 5

Statutes Cited

r ARNE CCI ne ae 1, 3, 5

r 2, 3, 4, 5

28 U.S. C. A.

D a a os

See. S901 .................... aa 1

c 1

rr 1

reer 1

No.

In the

Supreme Cont of the United States

OCTOBER TERM, 1973

Hon. EDWIN EDWARDS, GOVERNOR

OF LOUISIANA, Et AL.,

Appellants,

V.

MARSHA B. HEALY, Et Al.,

Appellees.

On Appeal From the United States District Court

For the Eastern District of Louisiana

Jurisdictional Statement

The opinion of the three-judge United States Dis-

trict Court for the Eastern District of Louisiana has

not been reported. A copy of the opinion is attached

hereto as Appendix A.

This suit was brought under the provisions of 28

U.S.C.A. 582201, 2202, 2281, and 2284 to obtain

declaratory and injunctive relief. The complaint

sought to have Article 7, Section 41 of the Louisiana

Constitution, Louisiana Revised Statutes 13 :3055, and

2

Article 402 of Louisiana Code of Criminal Procedure,

which provide an exemption of women from jury ser-

vice, declared unconstitutional. The judgment of the

Court below was entered on September 4, 1973. A copy

of the judgment is attached hereto as Appendix B.

The Court stayed the execution of its judgment on

September 10, 1973. A copy of the stay is attached

hereto as Appendix C. Appellants filed their notice of

appeal on September 18, 1973, in the United States

District Court for the Eastern District of Louisiana.

A copy of the notice is attached hereto as Appendix

D.

Jurisdiction

This Court has jurisdiction for this appeal pur-

suant to 28 U.S.C.A. §1253, which provides:

Except as otherwise provided by law; any party

may appeal to the Supreme Court from an order

granting or denying, after notice and hearing, an

interlocutory or permanent injunction in any civil

action, suit or proceeding required by any Act of

Congress to be heard and determined by a dis-

trict court of three judges.

Cases

The cases believed to sustain the Court’s juris-

diction are:

(a) Radio Corporction of America v. United

States, D.C. III., 95 F. Supp. 660, aff’d, 341

U.S. 412 (1950) ;

(b) Anderson v. Martin, 375 U.S. 399 (1964);

(c) Palmetto Fire Insurance Company v. Connec-

ticut, 272 U.S. 295 (1926).

Constitutional and Statutorial Provisions

The three-judge court in the United States Dis-

trict Court, Eastern District of Louisiana, declared

unconstitutional and enjoined the enforcement of Ar-

ticle 7, Section 41 of the Constitution of Louisiana,

LSA-R.S. 13:3055, and Article 402 of the Louisiana

Code of Criminal Procedure, which are as follows:

(a) Article 7, Section 41 of the Constitution of

Louisiana:

The Legislature shali provide for the election

and drawing of competent and intelligent jurors

for the trial of civil and criminal cases; provided,

however, that no woman shall be drawn for jury

service unless she shall have previously filed with

the clerk of District Court a written declaration

of her desire to be subject to such service. All cases

in which the punishment may not be at hard labor

shall, until otherwise provided by law, be tried

by the judge without a jury. Cases, in which the

vunishment may be at hard labor, shall be tried by

a jury of five, all of whom must concur to render

a verdict ; cases, in which the punishment is neces-

sarily at hard labor, by a jury of twelve, nine of

whom must concur to render a verdict; cases in

which the punishment may be capital, by a jury of

twelve, all of whom must concur to render a ver-

dict.

(b) LSA-R.S. 13:3055:

A woman shall not be selected for jury ser-

4

vice unless she has previously filed with the clerk

of court of the parish in which she resides a writ-

ten declaration of her desire to be subject to jury

service.

(e) Article 402 of the Louisiana Code of Crimi-

nal Procedure:

A woman shall not be selected for jury ser-

vice unless she has previously filed with the clerk

of court of the parish in which she resides a writ-

ten declaration of her desire to be subject to jury

service.

Questions Presented

1. Do the Louisiana constitutional and statutorial

provisions that exempt women from service on juries

unless they file a written declaration of their desire

to serve deny all of the male and female citizens of

Louisiana due process and equal protection as sanc-

tioned in the 14th Amendment of the United States

Constitution?

2. Do the female and male plaintiffs fairly and

adequately represent the class they purport to repre-

sent?

3. What is the class the female and male plain-

tiffs purport to represent?

4. What is the class the female intervenors pur-

port to represent?

5. Did the female and male plaintiffs have stand-

ing to sue?

5

6. Did the female intervenors have standing to

sue?

7. Did the three-judge court abuse its discretion

by overruling Hoyt v. Florida, 368 U.S. 57 (1961)?

Statement of the Case

This action was commenced in the United States

District Court for the Eastern District of Louisiana.

Appellees claimed to be litigating on their own behalfs

and on behalf of others similiarly situated. Named as

defendants were all of the appellants.

The complaint sought declaratory and injunctive

relief before a three-judge court.

The three-judge court rendered its opinion on

August 31, 1973, declaring Article 7, Section 41 of the

Constitution of Louisiana, LSA-R.S. 13:3055, and Ar-

ticle 402 of the Louisiana Code of Criminal Procedure,

which provide an exemption of women from jury ser-

vice, to be unconstitutional. Simultaneously the three-

judge court overruled Hoyt v. Florida, 368 U.S. 57

(1961).

No testimony was adduced in the court below. The

only reference to the alleged facts of the case is con-

tained in the complaint.

Following the opinion and order of the court be-

low, appellants filed a motion to stay execution. The

stay was granted by order of the court dated Septem-

ber 10, 1973. Thereafter, appellants filed their notice

of appeal.

6

Appellants consist of the original defendants. Ap-

pellees consist of all those originaily designated as

parties plaintiffs and intervenors.

The Questions are Substantial

This case is of great importance to the orderly

administration of the jury service system in the State

of Louisiana. The guiding hand of this Court is ur-

gently needed to resolve a clear and direct conflict be-

tween state and federal courts operating in the same

territory and having equal responsibility in passing on

federal constitutional questions. Guidance is further

needed to resolve a direct conflict between a lower

federal court and this Court.

An anomalous situation now exists in Louisiana.

In Hoyt v. Florida, 368 U.S. 57 (1961), this Court up-

held the constitutionality of a Florida statute almost

identical to the Louisiana Constitution and statutes in-

volved in the present case.

The Louisiana Supreme Court has followed the

decision in Hoyt, supra, in numerous cases. See State

v. Enloe, 276 So. 2d 283 (1973); State v. J. C. Curry,

262 La. 280, 263 So. 2d 36 (1972); State v. Daniels,

262 La. 475, 263 So. 2d 859 (1972); State v. Reese,

250 La. 151, 194 So. 2d 279, cert. denied, 389 U.S.

996 (1967) ; State v. Comeaux, 252 La. 481, 211 So. 2d

820 (1968); State v. Pratt, 255 La. 919, 233 So. 2d

891 (1970); State v. Alexander, 255 La. 941, 233 So.

2d 891 (1970) ; State v. Sinclair, 258 La. 84, 245 So.

2d 365 (1971); State v. Millsap, 258 La. 883, 248 So.

2d 324 (1971), and State v. Amphy, 259 La. 161, 249

So. 2d 560 (1971).

7

There has been no contrary jurisprudence from

this Court since the Hoyt decision, although the Court

has had the opportunity to overrule that case at least

once in the past year. See Alexander v. Louisiana, 405

U.S. 625 (1972).

Appellan.s respectfully assert that this case pre-

sents an appropriate opportunity for this Court to

articulate guidelines and standards to be followed in

the future in order to avoid a repetition of the type

of conflict here presented. That is one of the principal

reasons that plenary review by this Court is now ur-

gently sought.

Conclusion

We urge that the questions presented by this ap-

peal are critical to the administration of the jury se-

lection system in Louisiana and elsewhere and, further,

that they are so substantia! as to require plenary con-

sideration by this Court. We ask that jurisdiction be

noted.

Respectfully submitted,

WILLIAM J. GUSTE, JR.,

Attorney General of Louisiana.

NA ee S Mrbehw

ARREN E. MOULEDOUX,

First Assistant Attorney General,

of Louisiana.

Attorneys for Appellants

P. O. Box 4005

Baton Rouge, Louisiana 70804

8

CERTIFICATE

I HEREBY CERTIFY that copies of the fore-

going Jurisdictional Statement and Appendix have

been served upon Mr. George Strickler, Jr., 1110 Royal

Street, New Orleans, Louisiana 70116, by depositing

same in the United S ail, postage prepaid, ad-

dressed as above, this ay of November, 1973.

I FURTHER CERTIFY that copies of the fore-

going Jurisdictional Statement and Appendix have

been served upon Ruth Bader Ginsburg, Columbia Uni-

versity, 435 W. 116th Street, New York, New York

10027, and Sylvia Roberts, P. O. Box 3081, Baton

Rouge, Louisiana 70821, by depositing same in the

United States „Mail, postage prepaid, addressed as

above, this ay of November, 1973.

7.

V lather He lIA l

WARREN E. MOULEDOUX,

First Assistant Attorney General

of Louisiana.

9

APPENDIX A

Opinion of the United States District Court

for the Eastern District of Louisiana

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MARSHA B. HEALY, SUZANNE D. HILL, CAROLYN HALL,

LINDA WALZ, CHARLES W. HILL, JERRY A. WALZ

and JOHN J. HEAL”,

Plaintiffs,

V.

Hon. EDWIN EDWARDS, Governor uf La., HON.

THOMAS W. TANNER, HON. WALLACE A. ED-

WARDS, HON. HILLARY J. CRAIN, Judges of the

22nd Judicial District Court, DELOS FUSSELL,

A. B. Crow, BILLY W. WEAVER, ROBERT Frrz-

MORRIS, VICTOR GRANTHAM; all defendants are

sued both in their official and individual capaci-

ties,

Defendants.

CIVIL ACTION

No. 73-688

SECTION “C”

(THREE-JUDGE COURT CASE)

George Strickler, Esq.

New Orleans, La.

Ruth Bader Ginsburg, Atty.

New York, New York

Sylvia Roberts, Atty.

Baton Rouge, La.

Attorneys for Plaintiffs

10

Warren E. Mouledoux, Esq.

Baton Rouge, La.

Dale C. Wilks, Esq.

Robert L. Danner, Jr., Esq.

New Orleans, La.

Attorneys for Defendants

RUBIN, District Judge:

The Louisiana Constitution’ and statutes“ exempt

women from service on juries unless they file a written

declaration of their desire to serve. This benign dispen-

sation has resulted in jury panels that, in the parishes

here involved, have never included more than five per-

cent females, and frequently less. The plaintiffs in this

class action seek a declaration that the exemption pro-

visions violate the rights of the class to Equal Protec-

tion and Due Process of the Law, and an injunction

against continued enforcement of these laws.

Three separate classes of suitors join in the at-

tack: (a) one comprises all females in the named par-

ishes; these women contend that both their right to

serve on juries and their opportunity, should occasion

arise, to litigate before juries is abridged; (b) another

comprises all males in those parishes; these men con-

tend that they are subject to more onerous jury service

La. Const. Art. VII, 541.

Under the authority of the state constitutional provision,

separate statutes allow the exemption in eivil and in eriminal

* 1 13:3055; La. Code of Criminal Procedure,

rt. 402.

11

because similarly situated fernales are not required to

serve; and (c) the third, the intervening class, is com-

posed of female litigants in civil cases in state court;

these contend they are deprived of a jury of their peers.

Because the jurisdiction of federal courts is lim-

ited by the Constitution to “Cases” and “Controver-

sies,” Art. III, Sec. 2, U.S. Constitution, they may not

issue merely advisory opinions concerning the constitu-

tionality of legislation, federal or state. Indeed the

power to declare a statute unconstitutional is deduced

from the necessity of determining its validity in order

to decide a particular case or controversy.

A case, in the constitutional sense, must present a

real controversy. A statute may be attacked as uncon-

stitutional only by someone who has sustained or is in

immediate danger of sustaining some direct injury

from its enforcement. It does not suffice to show that

one is injured merely as a member of the body politic.

Frothingham v. Mellon, 1923, 262 U.S. 447, 43 S.Ct.

597.

This is what is meant by standing to sue, the re-

quirement that, to justify attack on legislation, a liti-

gant be able to show injury by the statute, “for it is

this requirement that gives a litigant a direct stake in

the controversy and prevents the judicial process from

becoming no more than a vehicle for the vindication of

value interests of concerned bystanders.” United

States v. SCRAP, 1973, U.S. ___, 8. Ct. (slip

op. at p. 16).

In SCRAP, only a few weeks ago, the Supreme

Court focused the light of the decisions on standing:

12

the test is whether the litigant can show “injury in

fact,” that he has been or will in fact be “perceptibly

harmed.” The litigants in SCRAP met that test by al-

leging a “specific and perceptible harm that distin-

guished them from other citizens.”

It is not necessary that the harm be great or sub-

stantial; it suffices that it be small, indeed a trifle, so

long as it distinguishes a person with a direct stake in

the outcome of the litigation from a person with a mere

interest in the problem. SCRAP, U.S. at

S. Ct. at , and note 14 (slip op. at p. 18).

We pretermit the question whether all females as

a class suffer a specific and perceptible harm when re-

quired to write a letter in order to serve on juries or

whether the greater burden of jury service imposed

on males by the virtual exemption of females from

jury duty is a palpable enough trifle. Together these

two classes—all women and all men—comprise the

entire adult citizenry, and they allege in effect a harm

to the body politic. It may be questioned whether, if

the entire citizenry is aggrieved by official action, they

may seek judicial relief instead of following the po-

litical route accorded by the democratic process.

But there is a class of persons joined in prosecu-

ting this suit who have both a direct and a personal

interest: the intervenors representing women who

have suits pending in state court.

Litigants have standing to allege the unconstitu-

tionality of a statute or practice that potentially denies

their right to Due Process of Law by interfering with

5

13

fair jury selection.“ The intervenors’ standing to sue

gives justiciability to the entire case. [A] court has

discretion to treat the pleading of an intervenor as a

separate action in order that it might adjudicate the

claims raised by the intervenor.” Fuller v. Volk, 3 Cir.

1965, 351 F.2d 323, 328-329. Accord: Atkins v. State

Board of Education, 4 Cir. 1969, 418 F.2d 874, 876;

Hackner v. Guaranty Trust Co., 2 Cir. 1941, 117 F.2d

95, 98.

The intervenors represent, through Ms. Baggett,

females actually engaged in litigation in state courts.

To deprive them of a jury comprising a fair cross sec-

tion of the population, including females, is a claim of

“sufficient immediacy and reality to warrant the is-

suance of a declaratory judgment.” Golden v. Zwickler,

1969, 394 U.S. 103, 89 S. Ct. 956, 959. “Defendants in

criminal proceedings do not have the only cognizable

legal interest in nondiscriminatory jury selection.”

Carter v. Jury Commission, 1970, 396 U.S. 320, 90

S.Ct. 518, 523.

It is unnecessary to probe whether these litigants

would have standing to challenge the provisions of the

Louisiana Code of Criminal Procedure for jury selec-

tion in criminal cases, were that issue presented alone.

Their right to challenge the Louisiana constitutional

provision having been established, the issue of the en-

A] plaintiff need not invariably wait until he has been

successfully prosecuted, dismissed, denied a license, or other-

—＋ direetl —1 1 to —1 1 2 policy before

e may challenge it in court.” Natio tudent Associati

v. Hershey, D.C. Cir. 1969, 412 F.2d 1103, 1110. 25

14

tire scope of jury selection in all kinds of cases appears

to be inescapably involved.

Only twelve years ago, in Hoyt v. Florida, 1961,

368 U.S. 57, 82 S.Ct. 159, the Supreme Court upheld

the constitutionality of a Florida statute almost iden-

tical to the challenged provisions of the Louisiana Con-

stitution. That decision was followed in Leighton v.

Goodman, S. D. N. V. 1970, 311 F.Supp. 1181, and

United States v. Caci, 2d Cir. 1968, 401 F.2d 664. Hoyt

rested on the finding that Florida's statute was based

on a reasonable classification and the venerable dictum

in Strauder v. West Virginia, 1879, 100 U.S. 303, 310,

unchallenged for eighty years, that a State may consti-

tutionally confine jury duty “to males.”

But the ground on which Strauder stood was

eroded by Reed v. Reed, 1971, 404 U.S. 71, 92 S.Ct.

251, and crevassed by Frontiero v. Richardson, 1973,

___U.S.___, 93 S.Ct. 1764. In Reed the court held

that an Idaho statute violated the Equal Protection

Clause in providing that, when two individuals are

otherwise equally entitled to appointment as admin-

istrator of an estate, the male applicant must be pre-

ferred to the female. By according different treatment

to applicants on the basis of their sex, the statute “es-

tablishes a classification subject to scrutiny under the

Equal Protection Clause.” Reed, supra, 92 S. Ct. at

253.

“The Equal Protection Clause. . [denies] to

States the power to legislate that different treatment

*

15

be accorded to persons placed by a statute into differ-

ent classes on the basis of criteria wholly unrelated to

the objective of that statute.” (Emphasis supplied.)

Id. at 253-54. By ignoring the individual qualifica-

tions of particular applicants, the challenged statute

provided “dissimilar treatment for men and women

who are thus similarly situated.” Id. at 254.

While only four justices were willing in Frontiero

to conclude that classifications based upon sex “are

inherently suspect,” seven justices agreed that it was

unconstitutional for Congress, solely for administra-

tive convenience, to deny a female member of the uni-

formed services the right to claim her spouse as a

dependent for the purposes of obtaining increased

quarters allowances and medical and dental benefits

without proving his actual dependency, while accord-

ing this right to males with respect to female depen-

dency. Three concurring justices found that Reed

“abundantly supports our decision today.“ U.S. at

— 93 S.Ct. at 1773.

The minimum requirement of Equal Protection,

then is that dissimilar treatment may no longer con-

stitutionally be provided for men and women who are

similarly situated with respect to the objectives of the

legislation. The objective of the state legislation here

attacked is the method of selecting juries. The state

does not contend that there is any difference between

males and females with respect to their qualifications

or competency as jurors. Nor could it do so, for wo-

men’s full competency is demonstrated by their com-

plete acceptability if they volunteer. Hence the state

16

constitutional provision patently fails to meet the re-

quirements of Equa! Protection for women as potential

jurors. Female litigants having standing to sue can

properly raise this issue which applies to women as a

class.

Female litigants are also denied Equal Protection

by being compelled to have their cases decided by juries

composed entirely or predominantly of males. If this

were proper sauce for geese, there might be gander

gravy too: states might with equal logic grant jury

exemptions only to all male wage earners who do not

ask to serve, with the result that litigants, male and

female, would be compelled in practice to submit to

verdicts by predominantly female juries. Males might

then properly question whether they were being af-

forded Equal Protection of the laws.*

‘Ballard v. United States, 1946, 329 U.S. 187, 67 S.Ct. 261,

a federal criminal case tried in California, where no women

were included on the panel of grand and petit jurors, is not

directly applicable. But the court found the “purposeful and

systematic exclusion” of women invalid, and observed:

“It is said, however, that an all male panel drawn

from the various groups within a community will be as

truly representative as if women were included. The

thought is that the factors which tend to influence the

action of women are the same as those which influence

the action of men—personality, background, economic

status—and not sex. Yet [it] is not enough to say that

women when sitting as jurors neither act nor tend to act

as a class. Men likewise do not act as a class. But if the

shoe were on the other foot, who would claim that a jury

was truly representative of the community if all men

were intentionally and systematically excluded from the

panel? The truth is that the two sexes are not fungible;

a community made up ego v4 of one is gm from

a community composed of both; the subtle interplay of

influence one on the other is among the imponderables.

To insulate the courtroom from either may not in

— —

17

The Nineteenth Amendment brought women the

right to vote, and freed them from strietures that had

43 years earlier been lifted from those males who had

formerly been denied the franchise because of race. In

the half century since then, women have moved in

inereasing numbers from hearthside into the world of

work and business and polities. Forty percent of the

American work force is female.“ Over 57% of all

American women between the ages of 20 and 24, and

45% of those between 25 and 34, are in the wage earn-

ing work force.“

Louisiana’s continued subscription to the notion

that women must be shielded from jury duty, unless

they choose to volunteer, results in juries that are pre-

dominantly male. Whether favorable or unfavorable to

females, the sexual prejudice implicit in the thesis that

women are entitled to an exemption not accorded men

imparts to the jury a potential prejudice, be it ever so

subtle or intangible, that is real and meaningful. Com-

pare Justice Murphy’s dissenting opinion in Fay v.

N.Y., 1947, 332 U.S. 261, 300, 67 S.Ct. 1613, 1633.

a oon case make an iota of difference. Yet a flavor, a

uality is lost if either sex is excluded. The ex-

— of one may indeed make the jury less represen-

tative of the community than would be true if an eco-

nomic or racial group were excluded.” 329 U.S. at 193,

67 S.Ct. at 264.

‘See Lexcen, The Equal Rights Amendment, 31 Federal

Bar Journal 247, 250-51; 1 Dept. of Labor, Women's Bu-

~~ Underutilization of Women Workers, 1971 (revised),

p. 1.

*U.S. Dept. of Commerce, Bureau of the Census, Statisti-

2 — of the United States, 1972. Table No. 341, at

U

18

III.

Litigants, male or female, have a constitutional

right to trial by an impartial jury drawn from a cross

section of the community. The “American tradition of

trial by jury, considered in connection with either

criminal or civil proceedings, necessarily contemplates

an impartial jury drawn from a cross-section of the

community.” Thiel v. Southern Pacific Co., 1946, 328

U.S. 217, 220, 66 S.Ct. 984, 985. Since this is inherent

in Due Process of Law, the denial may be challenged

not only by a litigant who is a member of a class ex-

cluded from representation,’ but even by one whose

right to an impartially selected jury is biased oy dis-

proportionate partiality to a class that includes him.

Peters v. Kiff, 1972, U.S. — 92 S.Ct. 2163.

Peters held that a white defendant might chal-

lenge discrimination against black jurors. The opinion

illuminates that the arbitrary exclusion of any well-

defined class of citizens offends a number of related

constitutional values:

— the members of the class excluded are denied

Equal protection:

— potential jurors are denied the “privilege of

participating equally . . in the administration

of justice;” and

Whitus v. Georgia, 1967, 385 U.S. 545, 87 S.Ct. 643;

Avery v. Georgia, 1953, 345 U.S. 559, 73 S.Ct. 891; Norris v.

Alabama, 1935, 294 U.S. 587, 55 S.Ct. 579; Carter v. Texas,

1900, 177 U.S. 442; Strauder v. West Virginia, 1879, 100

U.S. 303 (black defendants challenging discrimination against

black jurors).

19

— “it stigmatizes the whole class, [of those ex-

cluded] even those who do not wish to partici-

pate, by declaring them unfit for jury service

and thereby putting ‘a brand upon them, af-

fixed by law, an assertion of their inferior-

ity;’”

— “exclusion of a discernible class from jury ser-

vice injures not only those defendants who be-

long to the excluded class, but other defendants

as well, in that it destroys the possibility that

the jury will reflect a representative cross-

section of the community.” Id. at 2167.

The court concluded:

But the exclusion from jury service of a sub-

stantial and identifiable class of citizens has a po-

tential impact that is too subtle and too pervasive

to admit of confinement to particular issues or

particular cases.

Moreover, we are unwilling to make the as-

sumption that the exclusion of Negroes hes a rele-

vance only for issues involving race. When any

large and identifiable segment of the community

is excluded from jury service, the effect is to

remove from the jury room qualities of human

nature and varieties of human experience, the

range of which is unknown and perhaps unknow-

able. It is not necessary to assume that the ex-

cluded group will consistently vote as a class in

order to conclude. as we do, that their exclusion

deprives the jury of a perspective on human events

that may have unsuspected importance in any case

that may be presented. Id. at 2169.

Females, as individuals, bring to juries “qualities

20

of human nature and varieties of human experience,”

entirely different from those of males, and a diversity

of temperament, among themselves, completely hetero-

geneous. Their absence from jury panels is significant

not because all women react alike, but because they

contribute a distinctive medley of views influenced by

differences in biology, cultural impact and life experi-

ence, indispensable if the jury is to comprise a cross-

section of the community.

“It is part of the established tradition in the use of

juries as instruments of public justice that the jury be

a body truly representative of the community,” the Su-

preme Court declared in Smith v. Texas, 1941, 311 U.S.

128, 130, 61 S.Ct. 164, 165, referring to the exclusion

of jurors based on race. In like tenor, referring to the

exclusion of wage earners, in Thiel v. Southern Pacific

Company, 1946, 328 U.S. 217, 223, 66 S.Ct. 987, the

Court commented that the excluded class “consti-

tute[s] a very substantial portion of the community, a

portion that cannot be intentionally and systematically

excluded in whole or in part without doing violence to

the democratic nature of the jury system.”

A jury panel that is almost entirely male, whether

because females are excluded or because they serve only

if they volunteer and almost none step forward, can-

not be “truly representative of the community,” and

women’s absence does “violence to the democratic na-

ture of the jury system.” The jury must not merely

mirror the American male, just as it must not reflect

the views of only one race or one stratum of society.

21

Due Process insists upon the integrity of the jury

system. There may be no constitutional requirement

that a state proceed by grand jury indictment, Hurtado

v. California, 1884, 110 U.S. 516, 4 S. Ct. 111. But when

prosecution is initiated by indictment, the state may

not impose a discriminatory pattern in selecting the

jury. Hill v. Texas, 1942, 316 U.S. 400, 62 S.Ct. 1159.

Similarly, it is unnecessary to search the limits

of the Constitution for a right to jury trial in civil

cases. “Once the State chooses to provide grand and

petit juries, whether or not constitutionally required

to do so, it must hew to federal constitutional criteria

in ensuring that the selection of membership is free

from racial bias,” Carter v. Jury Commission of Green

County, 1970, 396 U.S. 320, 330, 90 S.Ct. 518, 523-24,

and, we add, every other type of unconstitutional dis-

crimination.*

IV.

Nor must this court await the day when the Su-

The Su I

the Constitution with respect to the manner of ng juries

in a number of cases. It would be mere pedantary to review

them all. But the landmarks stand high and clear.

In Glasser v. United States, 1942, 315 U.S. 60, 85-86, 62

S.Ct. 457, 471-472, Justice Murphy wrote, with respect to the

selection of federal juries:

“Lest the right of trial by jury be nullified by the

improper constitution of juries, the notion of what a

proper jury is has become inextricably intertwined with

the idea of jury trial. When the original Constitution pro-

vided only that ‘The Trial of all Crimes, except in Cases

of Impeachment, shall be by Jury;’ the people and their

representatives, leaving ing to chance, were quick to

implement that guarantee by the adoption of the Sixth

— which provides that the jury must be impar-

preme Court itself has occasion to reconsider and over-

rule Hoyt.

But even as jury trial, which was a privilege at common

law, has become a right with us, so also, whatever limita-

tions were inherent in the historical common law concept

of the jury as a body of one’s peers do not prevail in this

country. Our notions of what a proper jury is have de-

velo in harmony with our basic concepts of a demo-

cratic society and a representative government. For ‘It

is part of the established tradition in the use of juries

as instruments of public justice that the jury be a body

truly representative of the community.“ Smith v. Texas,

311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84.

In that case the federal jury commissioner had included

only those women whose names were on a list supplied by the

Illinois League of Women Voters, and prepared exclusively

from its membership. The court found this to be unconstitu-

tional. The officials charged with choosing federal jurors,

“must not allow the desire for competent jurors to lead

them into selections which do not comport with the con-

cept of the jury as a cross-section of the community.

Tendencies, no matter how slight, toward the seiection

of jurors by any method other than a process which will

insure a trial by a representative group are undermining

processes weakening the institution of jury trial, and

should be sturdily resisted. That the motives influencing

such tendencies may be of the best must not blind us to

the dangers of allowing any encroachment whatsoever on

this essential right. Steps innocently taken may one by

one lead to the irretrievable impairment of substantial

liberties.” Ibid.

See Ballard v. United States, 1946, 329 U.S. 187, 67 S.Ct.

261 (women systematically excluded from grand jury) ; Thiel

v. Southern Pacific Co., 1946, 328 U.S. 217, 66 S.Ct. 984 (all

persons who worked for daily wage intentionally excluded

from jury lists); Labat v. Bennett, 5 Cir. 1966, 365 F.2d 698

(wage earners systematically excluded from jury); State v.

Madison, 1965, 240 Md. 265, 213 A.2d 880 (non-theists ex-

cluded from jury); Simmons v. State, Fla. 1966, 182 So.2d

442 (common laborers systematically excluded.)

Compare Fay v. People of the State of New York, 1947,

332 U.S. 261, 67 S.Ct. 1613, where the court rejected a chal-

lenge to state jury selection methods that resulted in blue

ribbon juries as not violative of equal protection or due pro-

cess, distinguishing the cases involving exclusion based on

race as based on violation of federal legislation, 8 U.S. C. A.

$44, designed to enforce the Fourteenth Amendment.

23

“This Court, of course, must follow the Supreme

Court, but there are occasional situations in which

subsequent Supreme Court opinions have so eroded

an older case, without explicitly overruling it, as to

warrant a subordinate court in pursuing what it con-

ceives to be a clearly defined new lead from the Su-

preme Court to a conclusion inconsistent with an older

Supreme Court case.” Rowe v. Peyton, 4 Cir. 1967,

383 F 2d 709, 714, affirmed 391 U.S. 54.

Tnis also was the view of the Second Circuit, in

Perkins v. Endicott Johnson Corp., 2 Cir. 1942, 128

F.2d 208, where Judge Frank pointed out that, for

lower courts to continue to hold stubbornly to barren

precedent would stuitify them and unnecessarily

burden the Supreme Court. See also In re Korman, 7

Cir. 1971, 449 F. 2d 32, reversed by the Supreme Court

because the Seventh Circuit incorrectly concluded that

earlier doctrine had been discarded, 92 S.Ct. 2055;

Browder v. Gayle, M.D. Ala. 1956, 142 F.Supp. 707,

affirmed 352 U.S. 903, and cases cited therein; contra

Ward v. Luttrell, E.D. La. 1968, 292 F.Supp. 162;

Fishkin v. United States Civil Service Commission,

N.D. Calif., 1969, 309 F.Supp. 40, appeal dismissed,

1970, 396 U.S. 278, 90 S.Ct. 557; see Comment (1941)

50 Yale Law Journal 1448, 1450.

When today’s vibrant principle is obviously in

conflict with yesterday’s sterile precedent, trial courts

need not follow the outgrown dogma. Hence we con-

sider that Hoyt is no longer binding.

24

V.

Because the Louisiana Constitution denies all

litigants Due Process of Law and deprives female liti-

gants of their right to Equal Protection by according

an exemption from jury service to women on a basis

different from that available to men under substan-

tially similar eireumstances, and on the basis of a

sexual criterion that is wholly unrelated to the objec-

tives of jury service, we declare it and the statutes

enacted pursuant to it unconstitutional.

s,, JOHN MINOR WISDOM

United States Circuit Judge

/s/ ALVIN B. RUBIN

United States District Judge

/s/ R. BLAKE WEST

United States District Judge

New Orleans, Louisiana

August 31, 1973.

MINUTE ENTRY

SEPTEMBER 7, 1973

RUBIN, J.

MARSHA B. HEALY, SUZANNE D. HILL, CAROLYN HALL,

LINDA WALZ, CHARLES W. HILL, JERRY A. WALZ

and JOHN J. HEALY,

V.

Hon. EDWIN EDWARDS, Governor of La., HON.

THOMAS W. TANNER, HON. WALLACE A. ED-

WARDS, HON. HILLARY J. CRAIN, Judges of the

22nd Judicial District Court, DELOS FUSSELL,

A. B. Crow, BILLY W. WEAVER, ROBERT Frrz-

25

MORRIS, VICTOR GRANTHAM; all defendants are

sued both in their official and individual capaci-

ties,

CIVIL ACTION

No. 73-688

SECTION “C”

E **

In the opinion dated August 31, 1973, on page 5,

paragraph 3, line 3, “seven” should be eight“.

/s/ JOHN MINOR WISDOM

United States Circuit Judge

/s/ ALVIN B. RUBIN

United States District Judge

/s/ R. BLAKE WEST

United States District Judge

26

APPENDIX B

Copy of Judgment of 3-Judge United States District

Court for the Eastern District of Louisiana

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MARSHA B. HEALY, SUZANNE D. HILL, CAROLYN HALL,

LINDA WALZ, CHARLES W. HILL, JERRY A. WALZ

and JOHN J. HEALY,

V.

HON. EDWIN EDWARDS, Governor of La., HON.

THOMAS W. TANNER, HON. WALLACE A. ED-

WARDS, HON. HILLARY J. CRAIN, Judges of the

22nd Judicial District Court, DELOS FUSSELL,

A. B. Crow, BILLY W. WEAVER, ROBERT Frrz-

MORRIS, VICTOR GRANTHAM; all defendants are

sued both in their official and individual capaci-

ties,

CIVIL ACTION

No. 73-688

SECTION “C”

JUDGMENT

This matter came on for hearing on a previous

day, and for the written reasons on file herein,

IT IS ORDERED, ADJUDGED AND DE-

CREED that there be judgment in favor of plaintiffs,

Marsha B. Healy, Suzanne D. Hill, Carolyn Hall, Linda

Walz, Charles W. Hill, Jerry A. Walz and John J.

Healy, and against defendants, Hon. Edwin Edwards,

27

Governor of La., Hon. Thomas W. Tanner, Hon. Wal-

lace A. Edwards, Hon. Hillary J. Crain, of the 22nd

Judicial District Court, Delos Fussell, A. B. Crow,

Billy W. Weaver, Robert Fitzmorris and Victor Grant-

ham, declaring the Louisiana Jury Selection System

whereby women may not serve on juries without filing

a written declaration of their desire to do so unconsti-

tutional.

Dated at New Orleans, Louisiana, this 31st day of

August, 1973.

BENJAMIN W. REISCH, Clerk

S8, NELSON B. JONES,

Chief Deputy Clerk

APPROVED AS TO FORM:

/s/ ALVIN B. RUBIN

United States District Judge

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MARSHA B. HEALY, SUZANNE D. HILL, CAROLYN HALL,

LINDA WALZ, CHARLES W. HILL, JERRY A. WALZ

and JOHN J. HEALY,

V.

Hon. EDWIN EDWARDS, Governor of La., HON.

THOMAS W. TANNER, HON. WALLACE A. Ep-

WARDS, HON. HILLARY J. CRAIN, Judges of the

22nd Judicial District Court, DELOS FUSSELL,

28

A. B. Crow, BILLY W. WEAVER, ROBERT FITz-

MORRIS, VICTOR GRANTHAM; all defendants are

sued both in their official and individual capaci-

ties

CIVIL ACTION

No. 73-688

SECTION “C”

AMENDED JUDGMENT

The Judgment of August 31, 1973 is amended to

read as follows:

“This matter came on for hearing on a previous

day, and for the written reasons on file herein,

“IT IS ORDERED, ADJUDGED AND DE-

CREED that there be judgment in favor of plaintiffs,

Marsha B. Healy, Suzanne D. Hill, Carolyn Hall, Linda

Walz, Charles W. Hill, Jerry A. Walz and John J.

Healy, and against defendants, Hon. Edwin Edwards,

Governor of Louisiana, Hon. Thomas W. Tanner, ion.

Wallace A. Edwards, Hong Hillary J. Crain, of the

22nd Judicial District rt, Delos Fussell, A. B.

Crow, Billy W. Weaver, R@bert Fitzmorris and Victor

Grantham, declaring the Lq

tem whereby women not serve on juries without

filing a written dgefaration of their desire to do so un-

constitution nd defendants are hereby enjoined

frem enforcing the constitutional and statutory provi-

sions declared to be unconstitutional.”

29

Dated at New Orleans, Louisiana, this 7th day of

September, 1973.

/s/ JOHN MINOR WISDOM

United States Circuit Judge

/8/ ALVIN B. RUBIN

United States District Judge

/8/ R. BLAKE WEST

United States District Judge

30

APPENDIX C

Stay of Execution of Judgment

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MARSHA B. HEALY, SUZANNE D. HILL, CAROLYN HALL,

LINDA WALZ, CHARLES W. HILL, JERRY A. WALZ

and JOHN J. HEALY,

Plaintiffs,

V.

Hon. EDWIN EDWARDS, Governor of Louisiana, HON.

THOMAS W. TANNER, HON. WALLACE A. ED-

WARDS, HON. HILLARY J. CRAIN, Judges of the

22nd Judicial District Court, DELOS FUSSELL,

A. B. Crow, BILLY W. WEAVER, ROBERT Frrz-

MORRIS, VICTOR GRANTHAM: all defendants are

sued both in their official and individual capaci-

ties,

Defendants.

CIVIL ACTION

No. 73-688

SECTION C“

(THREE-JUDGE CouRT CASE)

MOTION TO STAY EXECUTION OF

JUDGMENT PENDING APPEAL

Defendants, through the Honorable William J.

Guste, Jr. move this court pursuant to Rule 62(C) of

the Federal Rules of Civil Procedure to order a stay of

the execution of judgment rendered in this action on

August 31, 1973, pending said defendants’ appeal from

said judgment to the Supreme Court of the United

31

States; and, as grounds for said motion, the defendants

say:

1. That the defendants will suffer irreparable

injury in the loss of time of its officers, agents, and

employees and expenses to be incurred by the defen-

dants in compiling respective lists of all the eligible

women in Louisiana for jury service as ordered by the

Court’s said judgment, in the event that said judgment

is reversed upon the defendants’ said appeal there-

from;

2. That the defendants will suffer irreparable in-

juries in complying with the injunction decreed by

the Court’s final judgment, in the event said judgment

is reversed on the defendant’s said appeal therefrom.

WHEREFORE, defendants pray that this Court

order a stay of the execution of its judgment rendered

in this action on August 31, 1973, pending defendant’s

appeal to the Supreme Court of the United States.

Respectfully submitted:

WILLIAM J. GUSTE, JR.

Attorney General

/s/ WARREN E. MOULEDOUX

First Assistant Atty. General

/s/ Ropert L. DANNER, In.

Special Counsel

2-3-4 Loyola Bldg.—7th Floor

234 Loyola Avenue

New Orleans, Louisiana 70112

527-8375

Filed: Sept. 10, 1973

U.S. District Court

Eastern District of Louisiana

Benjamin W. Reisch

Clerk

The defendants having moved for a stay of exe-

cution of, or any proceedings to enforce, the judgment

entered in the above entitled cause pending the de-

fendants’ appeal to the Supreme Court of the United

States.

IT IS ORDERED that execution of, or any pro-

ceedings to enforce, said judgment be and the same is

hereby stayed until the defendants’ appeal to the

Supreme Court is disposed of.

/s/ JOHN MINOR WISDOM

United States Circuit Judge

/s/ ALVIN B. RUBIN

United States District Judge

/s/ R. BLAKE WEST

United States District Judge

—— — —

—

Notice of Appeal

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MARSHA B. HEALY, SUZANNE D. HILL, CAROLYN HALL,

LINDA WALZ, CHARLES W. HILL, JERRY A. WALZ

and JOHN J. HEALY,

Plaintiffs,

v.

Hon. EDWIN EDWARDS, Governor of Louisiana, Hon.

THOMAS W. TANNER, HON. WALLACE A. ED-

sued

ties,

Defendants.

CVI. ACTION

No. 73-688

SECTION “C”

Defendants, Honorable Edwin Edwards, Gover-

nor of Louisiana, et al., through the Honorable Wil-

liam J. Guste, Jr., pursuant to 28 U.S.C.A. 51253,

hereby give notice of their appeal to the Supreme Court

34

of the United States from the Court’s judgment en-

tered on September 4, 1973.

Respectfully submitted:

WILLIAM J. GUSTE, JR.

Attorney General

/s/ WARREN E. MOULEDOUX

First Assistant Attorney General

Filed: Sept. 18, 1973

U.S. District Court

Eastern District of Louisiana

Benjamin W. Reisch

Clerk