# Jurisdictional Statement — Edwards v. Healy

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Jurisdictional Statement
- **Published:** January 1, 1975
- **Citation:** 421 U.S. 772

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0027%3A01. Public record. Not legal advice.