Petitioners Brief — Duren v. Missouri

IN THE MICH.

Supreme Court of the United States

‘ ;

~—&

Octoper Term, 1977

No.

77-6067

=

B [LLY Durer N ‘

Petitioner,

—_V—

STATE O

& Missouri,

Respondent.

ON WRIT OF CERTIORARL TO THE SUPREME COURT Ol

* MISSOURI

BRIEF FOR

PETITIONER

Rurxa Baper Ginspura

NATHLEEN Wittert Prratis

American Civil Liberties

Union Foundation

2? Kast 40th Street

New York, New York 10016

Lee M. Nation

James W. FLETCHER

Kevin Locke

Assistant Publie Defendant

1305 Loeust Suite 202

Kansas City, Missouri 64106

Attorneys for Petitioner

PAGE

Gpamaqm SOLOW . . 6 6 & © «6 oe we et se El

Jurisdiction. o . . o . . . . . dl - 2

Question Preeeneeg. « « «++ & © ew @

Constitutional and Statutory

Provisions Involved. .«+s+6st#ss8s84

Statement of the Case ....e..ee 3

Summary of Argument ....ee«-«e 8

ARGUMENT:

I.

Il.

MO. CONST. ART. I, § 22(b),

AND MO. REV. STAT. § 494.

031, WHICH AUTOMATICALLY

EXEMPT "ANY WOMAN" FROM

JURY DUTY, DESTROY THE

POSSIBILITY OF A JURY REP-

RESENTATIVE OF THE COMMUNITY,

THEREBY DEPRIVING ALL

CRIMINAL DEFENDANTS OF A

FUNDAMENTAL RIGHT SECURED

BY THE SIXTH AND FOURTEENTH

AMENDMENTS. . « «© © © «© © © 9

NO TENABLE JUSTIFICATION

EXISTS FOR MISSOURI'S

INVITATION TO "ANY WOMAN"

TO AVOID JURY SERVICE: IF

IT WAS EVER THE CASE THAT

WOMEN WERE SO SITUATED

THAT NONE OF THEM SHOULD

BE REQUIRED TO SERVE, THAT

TIME HAS LONG SINCE PASSED. 16

ii

CONCLUSION. . . . . . . * > 7 - *

TABLE OF AUTHORITIES

Cases:

Alexander v. Louisiana, 405 U.S.

ae Sheree « os 6.208 ee es

Ballard v. United States, 329 U.S.

187 (1946) ° . o ° . e . ° . .

Broadway v. Culpepper, 439 F.2d

Bass (S00 Cake. A974) « 6 2 bt

Brooks v. Beto, 366 F.2d 1

(Sth Cir. 1966), cert. denied,

356 0.6. 373 (Adelie © «& ws

Califano v. Goldfarb, 430 U.S.

199 (1977) ee ° o ° . ° ee e ° .

Califano v. Webster, 430 U.S.

313 (1977) @ . ° . oo ° ° . oo .

Craig v. Boren, 429 U.S. 190

(1976) oe ° ° ° ° ° 2 a ° ° ° oe

De Kosenko v. Brandt, 63 Misc. 2d

895, 313 N.Y.S.2d 827 (1970) .

Duncan v. Louisiana, 391 U.S. 145

(1968) @ J s oO oO s* a . _ J eo eo

PAGE

26

10,12,13

14,17,22

12,25

13,21

13

15,23,

22

10

iii

Frontiero v. Richardson, 41l

- = 677 (1973) oe ee o e e e eo e

Goldblatt v. Board of Education,

52 Misc. 2d 238, 275 N.Y.S.

2a 550 (1966), aff'd, 57

Misc. 2d 1089, 294 N.Y.S.2d

per Be ae ee ee ee ee

Leighton v. Goodman, 311 F. Supp.

1181 (S.D.N.Y. 1970). ° e ° @ °

Penn v. Eubanks, 360 F. Supp.

GSS Gi.B. Babe BPFS)e 2 0 ce ce

People v. Moss, 80 Misc. 2d 633,

PAGE

015,23

21

366 N.Y.S.2d 522 (Sup. Ct. 1975) .18

Peters v. Kiff, 407 U.S. 493

(1972). — s s — _ _ * . oO oe i oe

Reed v. Reed, 494 U.S. 71 (1971) .

Stanton v. Stanton, 421 U.S. 7

(1975). . e o e . « ° * e @ © @

State v. Parker, 462 S.W.2d 737

(Mo. 1971). o oe > > > s 2 eo oe eo

Taylor v. Louisiana, 419 U.S. 522.

Thiel v. Southern Pacific Cc., 328

Dae See a as ae we hel

11,14

015,23

a B)

-passim

14

iv

Turner v. Fouche, 396 U.S. 346

(1970). . ° . o ° . . ° ° o o

United States v. Butera, 420

F.26 366 (iS Cit. A2P7O}- «2

United States v. Dege, 364 U.S.

7h CAPOG) 2 ce ee se ee Se

Weinberger v. Wiesenfeld, 420 U.S

636 (1975). e e o o ° ° e ° e

Williams v. Florida, 399 U.S. 78

(1970). . ° 2 ° © « o . . e @

Constitutional Provisions:

United States Constitution

Sinth Aemamemt «¢ « « «© 6 6

Fourteenth Amendment. ....

Federal Statutes:

$6 U.S. BEI ow ke Se

28 DabaGCe §§ 1861-62 (1970). . °

State Legislation:

Ala. Code Tit. 30, § 21 (1959)

(replaced by Ala. Code § 12-

16-43 (1975) ) ° ° ° ° a e ° e

PAGE

12

12

saa

-15,24

ell

-passim

-passim

- 16

PAGE

Ga. Code Ann. § 59-112(6) (d)

(Supp. 1974) (repealed by

1975 Ga. Laws, pp. 779, 780). . .7

Governor's Memorandum, Approval

of Bills, 1975 N.Y. Sess. Laws

BG. L¥se Gee sc a wo ee lw hl

La. Sup. Ct. Rules XXV, § 1 (1975) .15

mM. Const. Art. =, § 22(B) . « « « £25526

Mo. Rev. Stat. § 494.031(Supp. 2,9

ROOT wo aS OR ew Ce ee: a ae ee

Mo. Rev. Stat. § 497.130 (Supp.

1975) Oo 7 s oe oe °* > * . . o e s a

N.Y. Jud. Law §§ 507(7), 599(7),

665(7) (McKinney 1940) (repealed

wy 2973 BWiksc Ls GC. 43s 2 « © 0 Fek8

R.I. Gen. Laws Ann. § 9-9-11 (1969)

(repealed by 1975 R.I. Pub. Laws

Ce aas~ § ph Oe e ° e o e e e ° e my

Tenn. Code Ann. § 22-101 (1955)... .7

Other Authorities Cited:

Appendix to Appellees' Motion to

Affirm, Edwards v. Healy 421

U8 772 (1975) ° ° @ e o ° e o Pe i

ee ee ee ee ne

vi

Brief for Appellees, Edwards v.

Healy, 421 U.S. 772 (1975)...

Bureau of Labor Statistics, U.S.

Dep't of Labor, Employment

and Earnings, Table A-3 (July

hs) ae ae ee ee ee

Bureau of the Census, Current Pop-

ulation Reports, Household and

Family Characteristics: March

1976, Table 6 (Series P-20,

Zo. Fli, Begs. A07s) 4 6c

Bureau of the Census, Current Pop-

ulation Reports: Voting and

Registration in the Election

of November 1976 (March 1978) .

Chafe, The American Woman (1972) .

Comment, Twelve Good Persons and

True: Healy v. Edwards and

Taylor v. Louisiana, 9 Harv.

C.R.-C.L. L. Rev. 561 (1974). .

Daughtrey, Cross Sectionalism in

Jury-Selection Procedures After

Taylor v. Louisiana, 43 Tenn.

Lb. ROV. 1 (29lobs « & ss = ee

deBeauvoir, Second Sex (1949). ..

Ginsburg, Gender and the Consti-

tution, 44 U. Cin. L. Rev. l

(1975) e ° ° ° ° « . o ° e e e eo

PAGE

-17

oL9

-20

-18

33.32,

13,14,

16,22,

.25

~23

vii

Hart, Long Live the American

Jury 19 (1964) . ° ° ° e o « ° - a

Hayghe, Marital and Family Char-

acteristics of Workers, March

1977, Tables 1 & 3, Monthly

Labor Review, Bureau of Labor

Statistics, U.S. Dep't of

Sie «GOR, SUTE) « « tt se fe 60 kD

Janeway, Man's World, Woman's

Place (1971) e © ° ° ° ° ° e . ° eas

Jchnston & Knapp, Sex Discrimina-

tion by Law: A Study in

Judicial Perspective, 46 N.Y.U.

es MOVs STS TASTE)... 6 ct ts 0 oe tk

Kanowitz, Women and the Law 30

(1969). * o o . ° . . . o — eo o <a

Library of Congress Legislative

Reference Service, American

Law Division, June 10, 1970

report to the Senate, published

in Hearings on S.J. Res. 61

Before the Subcomm. on Consti-

tutional Amendments of the

Senate Comm. on the Judiciary,

91st Cong., 2d Sess. (1970) .. .17

Simon, The Jury and the Defense

of Insanity 109 (1967). .... 15

viii

PAGE

Uniform Jury Selection Service

Act (U.L.A. §§ 1, 2, 10, 11

& Commissioners' Comments to

2 68 6 2 ok eo ee ek Sk a a

Zeisel, Some Data on Juror Atti-

tudes Toward Capital Punishment

12 (1968) . . ° . . . - _ - . . ea

IN THE

SUPREME COURT oF THE UNITED STATES

October Term, 1977

No. 77-6067

BILLY DUREN,

Petitioner,

Ve

STATE OF MISSOURI,

Respondent,

ON WRIT OF CERTIORARI TO THE SUPREME

COURT OF MISSOURI

BRIEF FOR THE PETITIONER

OPINION BELOW

The opinion of the Supreme Court of

Missouri (en banc) is reported at 556 S.W.

2d 11 (Mo. 1977), and appears as Appendix

A to the Petition for a Writ of Certiorari

herein.

2

JURISDICTION

The judgment of the Supreme Court

of Missouri was entered September 27, 1977.

A timely petition for rehearing was denied

October 1l, 1977. The petition for a writ

of certiorari was filed January 19, 1978,

and certiorari was granted May l, 1978.

This Court has jurisdiction pursuant to 28

U.S.C. § 1257(3).

QUESTION PRESENTED

Whether Missouri's jury selection

system, which exempts "any woman" solely

on the basis of her sex, denies to crimi-

nal defendants their sixth and fourteenth

amendment right to a jury drawn froma

panel fairly reflecting the community's

population?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the sixth and

fourteenth amendments to the Constitution

of the United States, and the following

Missouri provisions:

Mo. Const. Art. I, § 22(b): No

citizen shall be disqualified from jury

service because of sex, but the court

shall excuse any woman who requests exemp-

tion therefrom before being sworn as a

juror.

Mo. Rev. Stat. § 494.031 (Supp.

1975), in pertinent part: The following

|

3

persons shall, upon their timely applica-

tion to the court, be excused from service

as a juror, either grand or petit: ...

(2) Any woman who requests exemption before

being sworn aS a juror; ....e

STATEMENT OF THE CASE

On March 31, 1976, petitioner Duren

was found guilty of first degree murder and

assault with intent to kill by a Jackson

County, Missouri all-male jury. Judgment

of conviction and sentences were entered

April 21, 1976. Prior to trial, on Febru-

ary 4, 1976, Duren filed a timely motion to

quash the petit jury panel on the ground

that, in violation of the Federal Constitu-

tion's fair cross-section requirement,

females were systematically eliminated by

virtue of Missouri's automatic exemption

for "any woman." At the hearing on the

motion, it was established, without dispute,

that potential jurors in Jackson County,

Missouri are randomly selected from voter

registration lists, and that persons so

selected are sent questionnaires to deter-

mine their eligibility for jury service.

The questionnaire prominently states:

TO WOMEN:

The constitution permits women

to elect to serve or not to serve

as jurywomen. Any woman who elects

lsee Mo. Rev. Stat. § 497.130 (Supp. 1975);

State v. Parker, 462 S.W.2d 737, 738 (Mo. 1971).

4

not to serve will fill out this

paragraph and mail this question-

naire to the jury commissioner at

once. It will not be necessary

to answer the other questions.

I elect not to perform jury

service.

Signature

Returned questionnaires showing no

exemption were placed in the jury wheel.

Evidence was received showing 29.1% women

in the wheel in 1976.2 Each week, jury

panels were summoned on a random basis from

the wheel. For the periods June through

October 1975, and January through March

1976, 26.7% of the persons summoned for jury

duty were women (2992 of 11,197). In March

1976, 29.5% of those summoned (453 of 1537)

were women.

The summons to prospective jurors in-

cluded this conspicuous notice:

2questionnaires were sent to 70,000 persons on

the county voter registration list, From the re-

turned questionnaires, a master list was compiled

containing 30,000 names. 556 S.W.2d at 16. Voter

registration in Missouri, as in the United States

generally, is not significantly higher for men than

it is for women. See Bureau of the Census, Current

.Population Reports: Voting and Registration in the

Election of November 1976 (March 1978)(in Missouri,

71.1% of the men, 69.9% of the women; in the United

States, 67.1% of the men, 66.4% of the women).

>

Women, if you do not wish to

serve, return this summons to the

Judge named on the reverse side as

quickly as possible. Def. Trial Ex.

No. 2, App. at °

According to the undisputed testimony of

Jury Commissioner John Fitzgerald, if a

woman failed to respond to the summons, she

was deemed to have exercised her option not

to serve. Def. Trial Ex. No. 4, App. at

For the months just prior to the

petitioner Duren's trial, those appearing

in response to a jury summons included 15.9%

women in June 1975, 15.1% in July 1975, 13%

in August 1975, 13.7% in September 1975,

10.9% in October 1975, 12.3% in January 1976,

17.6% in February 1976. At the time of

trial, March 1976, 15.5% of those appearing

(110 of 707) were women. The average for

the period was 14.5% women (741 of 5119).

Petitioner Duren's panel of fifty-three in-

cluded five women (9.4%); his jury of twelve

was all male. 556 S.W.2d at 16.

In dramatic contrast, in the federal

district court serving the same territory,

and despite the availability of a childcare

excuse for mothers who lack adequate domes-

tic assistance, women accounted for 53% of

the persons on the master list, and 39.8%

of the actual jurors. 556 S.W.2d at 24

(dissenting opinion).

1970 Jackson County census figures

showed a population of approximately 407,000

inhabitants over 21 years of age, with 54%

women and 46% men. 556 S.W.2d at 15.

6

Despite the uncontested showing of a

female population constituting 54% of the

relevant community, a population dwindling

to less than 30% of those summoned to serve

on juries, and to 14.5% of those appearing

for jury service, the motion to quash was

denied. On appeal to the Missouri Supreme

Court on federal constitutional grounds,

that disposition was sustained on the merits.

The Missouri Supreme Court held that

the state's jury selection system, which

exempts every woman for the asking simply

because she is a woman, survives this Court's

decision in Taylor v. Louisiana, 419 U.S.

522 (1975), and is fully consistent with

sixth and fourteenth amendment limitations.

Taylor v. Louisiana, the Missouri

Supreme Court acknowledged, compelled rec-

Ognition that (1) petitioner Duren, a man,

has standing to challenge exclusion of

women from his jury, (2) the sixth amend-

ment requires selection of petit juries

from a representative cross-section of the

community, (3) if women are systemically

eliminated in the selection process, the

sixth amendment cross-section requirement

cannot be satisfied. 419 U.S. at 526, 528-

33. Nonetheless, the court below ruled

that the overt gender classification em-

ployed in Missouri, which inevitably yields

jury panels overwhelmingly male, must be

presumed constitutional. 556 S.W.2d at 15.

Petitioner Duren demonstrated constant male

representation on jury panels in the neigh-

borhood of 85%, but that was not high

enough, the Missouri court concluded. To

Overcome the presumption, Duren would have

to show women were effectively excluded.

556 S.W.2d at 16-17.

The Missouri opinion offers no co-

herent explanation for the determination

that a 6:1 male/female ratio fairly repre-

sents a local population that includes at

least as many women as men. Disregarding

this Court's clear instruction that "the

right to a proper jury" -- one drawn from

a panel reasonably "representative of the

community" -- "cannot be overcome on merely

rational grounds," 419 U.S. at 534, 538,

the court below articulated no justification

at all for Missouri's wholesale exemption

of women solely on the basis of their sex.

That court simply took refuge in the notion

that opting out was a "female privilege."

When Taylor v. Louisiana was decided,

five states (Alabama, Georgia, New York,

Rhode Island, Tennessee), in addition to

Missouri, allowed any woman to opt out of

jury service. Currently, only Missouri and

Tennessee retain an automatic exemption for

every woman.

3compare Tenn. Code Ann. § 22-101 (1955), with

Ala. Code Tit. 30, § 21 (1959) (replaced by Ala.

Code § 12-16-43 (1975)); Ga. Code Ann. § 59-112(6)

(d) (Supp. 1974) (repealed by 1975 Ga. Laws, pp. 779,

780); N.Y. Jud. Law §§ 507(7), 599(7), 665(7)

(McKinney 1940) (repealed by 1975 N.Y. Laws, c. 4);

R.I. Gen. Laws Ann. § 9-9-11 (1969) (repealed by

1975 R.I. Pub. Laws c. 233, § 1).

8

SUMMARY OF ARGUMENT

-

In Taylor v. Louisiana, 419 U.S. 522

(1975), this Court confirmed that the sixth

amendment requires selection of jurors from

a fair cross-section of the population.

Under Missouri law, however, women but not

men are permitted to "opt out" of jury ser-

vice. As a result, men outnumber women on

the panels from which jurors are selected

by approximately six to one. This gross

imbalance assures that juries will not be

reasonably representative of the communi-

ties from which they are drawn. Missouri's

automatic exemption for "any woman" there-

fore violates petitioner's rights under the

sixth and fourteenth amendments to the

Constitution,

II,

Traditionally, states justified

women's exemptions by assuming that most

women would be too busy with home and

children to serve on juries, and that it

would be more convenient to exempt all

women than to determine which are actually

unable to serve. This Court has recognized

that such "archaic and overbroad" assump-

tions are no longer tenable. Women now

constitute a substantial part of the paid

labor force; only "habit," not "analysis

or actual reflection," can account for the

notion that women are occupied day-round in

pursuits that exclude jury duty. The "con-

venience" of adhering to an obsolete habit

of thought does not justify erosion of a

9

criminal defendant's sixth and fourteenth

amendment rights.

Jury service is a basic responsi-

bility of citizenship, a principal form of

participation in the democratic processes

of government. By giving "any woman" an

automatic exemption, thus treating men's

service as essential, women's as expendable,

Missouri reinforces ancient prejudices harm-

ful to women, to the jury system, and to the

community at large.

ARGUMENT

he

MO. CONST. ART. I, § 22(b), AND

MO. REV. STAT. § 494.031, WHICH

AUTOMATICALLY EXEMPT "ANY WOMAN"

FROM JURY DUTY, DESTROY THE POS-

SIBILITY OF A JURY REPRESENTATIVE

OF THE COMMUNITY, THEREBY DEPRIV-

ING ALL CRIMINAL DEFENDANTS OF A

FUNDAMENTAL RIGHT SECURED BY THE

SIXTH AND FOURTEENTH AMENDMENTS.

In Jackson County, Missouri, as in

most places, in the population eligible for

jury service, women outnumber men. But

4Petitioner Duren submitted to the trial court,

in February 1976, 1970 Jackson County census fig-

ures showing approximately 497,000 county inhabi-

tants over 21 years of age, with 54% women and 46%

(footnote continued)

10

in the panels from which jurors are drawn,

Jackson County men dominate. Their share is

eighty-five percent, or approximately six

men to one woman. 556 S.W.2d at 23 (dis-

senting opinion). This stark disparity is

not the result of happenstance. Rather,

Missouri invites and achieves women's suk-

stantial underrepresentation. By Constitu-

tion and statute, publicized in the official

notice and questionnaire and in the summons

for jury duty, Missouri tells women their

sex excuses them from service. The women's

excuse is not tied to any hardship, incapac-

ity or occupation. Based on sex per se, it

bears no relationship to an individual's

life situation or to the objectives of jury

service. The issue here presented is

whether this purposeful, solely sex-based

differentiation violates the sixth amendment

requirement that juries be drawn from a fair

cross-section of the community's population.54

(footnote continued)

men. 556 S.W.2d at 15. The Missouri Supreme

Court's view that census figures were inappropriate

indicators of the relevant population, id. at 16,

is inexplicable in light of this Court's opinion in

Alexander v. Louisiana, 405 U.S. 625, 627, 629-30

(1972) (relying on 1960 census figures to establish

the population presumptively eligible for jury ser-

vice in a case in which prosecution commenced in

September 1967), and Taylor v. Louisiana, 419 U.S.

522, 531 (1975) (relying on demographic figure of

53%).

Spuncan v. Louisiana, 391 U.S. 145, 149 (1968),

recognized as "fundamental to the American scheme of

justice" sixth amendment trial by jury in criminal

cases, and declared such trial a right guaranteed to

(footnote continued)

11

It is petitioner's position that

Missouri's scheme, by design and in oper-

ation, is impossible to reconcile with

"(t]he [constitutional] principle of the

representative jury." Peters v. Kiff, 407

U.S. 493, 500 n.9 (1972). Just as an ex-

emption for "any man,""any Jew,""any black,"

would yield a skewed jury list, so Missouri's

exemption for "any woman" means a roster not

"truly representative of the community."

See Taylor v. Louisiana, 419 U.S. 522, 527

(1975). ; :

In Taylor v. Louisiana, 419 U.S.

530, the Court confirmed "the fair-cross-

section requirement as fundamental to the

jury trial guaranteed by the Sixth Amend-

ment." It ruled that the day had passed

when the cross-section requirement encom-

passed men, but drew in women, if at all,

only in token numbers. Fair representation

of the local population of men and women is

the only sensible reading of the Taylor

decision. Interpretation of Taylor to ac-

commodate marked curtailment in women's

representation through automatic exemption

trivializes the cross-section requirement

and this Court's reasoned elaboration of it.

(footnote continued)

defendants in state courts by the fourteenth amend-

ment. Essential to the jury trial guaranteed by

the sixth amendment, the Court explained in Williams

v. Florida, 399 U.S. 78, 100 (1970), is a selection

system assuring a "fair possibility for obtaining a

representative cross-section."

For comprehensive analysis, see Daughtrey,

Cross Sectionalism in Jury-Selection Procedures After

Taylor v. Louisiana, 43 Tenn. L. Rev. 1 (1975).

12

See Daughtrey, Cross Sectionalism in Jury-

Selection Procedures After Taylor v. Louisiana,

43 Tenn. L. Rev. 1, 68-82 (1975).

Petitioner Duren established below

"the progressive decimation of potential

[female] jurors." Alexander v. Louisiana,

405 U.S. 625, 630 (1972). The reduction

pattern, dropping in two steps from 54% of

the total population to under 30%, and fi-

nally to 14.5%, bears a marked resemblance

to the cuts in prospective black jurors

shown in Alexander v. Louisiana, 405 U.S. at

629-30. The result, underrepresentation of

women on juries by 73%, surely a greater dis-

parity than in a legion of cases in which

underrepresentation of a cognizable group

was held significant. E.g., Turner v. Fouche,

396 U.S. 346 (1970) (38% underrepresentation) ;

United States v. Butera, 420 F.2d 564, 571

(lst Cir. 1970) (36% women in jury pool, com-

pared to 52% in population; 30% underrepre-

sentation constitutes prima facie case of

illegal discrimination) .6

Sunder Missouri's scheme, a defendant is far more

likely to be tried by an all-male jury, and thus to

be deprived of "a flavor, a distinct quality [which]

is lost if either sex is excluded." Ballard v.

United States, 329 U.S. 187, 194 (1946). If Missouri

women were represented on Jackson County jury panels

proportionately to their presence in the population,

the chance of randomly drawing an all-male jury would

be roughly one in 11,000. With women making up only

14.5% of*the jury panels, however, the chance of

drawing an all-male jury is greater than one in seven,

13

Moreover, as in Alexander, the sta-

tistics do not stand alone. 405 U.S. at

630. For the selection process in Missouri

is distinctly non-neutral. At least at

two crucial steps, when the official notice

and questionnaire are dispatched, and when

the summons issues, bare gender classifica-

tion separates those whose service is deemed

necessary from those whose participation

the state declares expendable.’ In signif-

icant contrast to Jackson County, Missouri's

14.5% figure, in places where women are

not specifically exempt, their participation

on juries is at least evenly matched with

men's. See Daughtxey, supra, 43 Tenn. L.

Rev. at 75 n.312 and authorities cited

therein.

In sum, Missouri's opt out system

for all females, providing a jury pool

"truly representative of the community's

men," but severely underrepresentative of

the community's women, misses the essence

Nor does Missouri make any attempt to develop

and pursue special procedures to encourage women to

regard their service, like men's, as essential to

the fair, effective administration of justice. In-

deed, if a woman fails to respond to the summons,

she is deemed to have opted out, and no further

inquiry is made. Def. Triai Ex. No. 4, App. at °

As to the state's affirmative obligation, ignored _

in Jackson County, Missouri, to provide a represen-

tative cross section, see Broadway v. Culpepper, 439

F.2d 1253, 1259 (5th Cir. 1971); Brooks v. Beto, 366

F.2d 1, 12-13 (5th Cir. 1966), cert. denied, 386

U.S. 975 (1967).

14

"ltl]he principle of the representative

ite utace Kiff, 407 U.S. at 500 n.9.

As restated in Taylor, the "broad represen-

tative character" of jury panels is a bed-

rock sixth amendment requirement "partly

as assurance of a diffused impartiality and

partly because sharing in the administration

of justice is a phase of civic responsibil-

ity." 419 U.S. at 530-31, quoting from

Thiel v. Southern Pacific CO., 328 U.S. 217,

227 (1946) (Frankfurter, J. dissenting) . To

make that diffusion and sharing possibic,

neither man nor woman may be exempt solely

on the basis of sex.8

Finally, even independent cf the

sixth amendment, a state cannot, consistent

with due process, subject a defendant to

trial by a jury selected in an arsitrary

and discriminatory manner. Peters v. Kiff,

supra.? This Court's precedent makes it

Baking exemption for women voluntary does not

insulate the state from responsibility for the marked

imbalance. Most persons of either sex will escape a

time-consuming civic task, given the opportunity.

"Neither man nor woman can be expected to volunteer

for jury service." Alexander v. Louisiana, 405 U.S.

625, 643 (1972) (Douglas, J. concurring), citing

L. Kanowitz, Women and the Law 30 (1969). See ;

Daughtrey, supra note 5, 43 Tenn. L. Rev. at 74, I3-

76 n.314 (citing commentary on phenomenon of jury

service avoidance).

nor need a defendant show that the arbitrary

feature of the system occasioned harm to him. For

the impact of an infirm selection mechanism -- one

that drops out a substantial and identifiable class

(footnote continued)

SS re

15

apparent that rules of inclusion or exemp-

tion pigeonholing people Overbroadly by

gender are indeed arbitrary and discrimi-

natory. Reed v. Reed, 404 U.S. 71 (1971);

Frontiero v. Richardson, 411 U.S. 677

(1973); Weinberger v. Wiesenfeld, 420 U.S.

636 (1975); Stanton v. Stanton, 421 U.S. 7

(1975); Craig v. Boren, 429 U.S. 190 (1976);

Califano v. Goldfarb, 430 U.S. 199 (1977).

. Thus, Missouri's blatantly sex-based

jury service exemption, almost the last of

the genre in the nation,19 harks back to

(footnote continued)

of citizens eligible for jury duty -- on "any indi-

vidual trial is unascertainable," "too subtle and

too pervasive to admit of confinement to particular

issues or particular cases." Peters v. Kiff, 407

U.S. 493, 497, 498, 503 (1972). For studies indi-

cating women jurors may be more sympathetic to

criminal defendants, see R. Simon, The Jury and the

Defense of Insanity 109 (1967); H. Zeisel, Some Data

on Juror Attitudes Toward Capital Punishment 12 (1968).

10se¢ note 3 supra. Before the Court decided

Taylor, Louisiana had eliminated its "women's exemp-

tion," and had substituted for it a sex-neutral rule

stating juries are to be “selected at random from

a fair cross-section of the parish." The Louisiana

rule effective since 1975 further provides that "all

qualified citizens . . . shall have an obligation

to serve as jurors when summoned," and "no citizen

Shall be excluded . . . on account of race, color,

religion, sex, national origin or economic status."

La. Sup. Ct. Rules XXV, § 1 (1975). The wording is

similar to that of the Uniform Jury Selection and

Service Act, which is premised on the theory that

(footnote continued)

16

"one of the most dramatic cases of .. .

myopia in the entire development of American

law." Daughtrey, supra, 43 Tenn. L. Rev. at

50. On its face and in operation, Missouri's

automatic opt out provision for "any woman"

cannot survive reasoned constitutional re-

view. The invitation to each and every

woman to avoid jury duty on whim or caprice

is obviously incapable of administration

without regard to sex, and it inevitably

produces jury panels that do not represent

a fair cross-section of the community.

Il,

NO TENABLE JUSTIFICATION EXISTS

FOR MISSOURI'S INVITATION TO

"ANY WOMAN" TO AVOID JURY SER-

VICE: IF IT WAS EVER THE CASE

THAT WOMEN WERE SO SITUATED

THAT NONE OF THEM SHOULD BE

REQUIRED TO SERVE, THAT TIME

HAS LONG SINCE PASSED.

Not a single viable state interest

was advanced by the Missouri court for main-

taining a jury selection system that invites

all women to opt out.11! prior to this

(footnote continued)

“actual service on the jury should be shared as

widely as possible," and therefore contains no auto-

matic exemptions. Uniform Jury Selection Service

Act (U.L.A.) §§ 1,2,10,11 & Commissioners’ Comments

to § 11. See also 28 U.S.C. §§ 1861-62 (1970).

11the invitation is repeatedly extended. See 556

S.W.2d at 24 (dissenting opinion). Silence is deemed

acceptance, See note supra.

117

Court's decision in Taylor v. Louisiana, it

— routine to justify exempting all women

ased on their presumed role in the home

and the administrative convenience of d a1

ing with women in lump fashion. 1 But oe

Taylor squerely rejected those two habitual

responses. As to the first, tne Court de-

a "If it was ever the case that

° « »« were so situated

them should be required to cetteak Gace

service, that time has long since passed"

(emphasis supplied). 419 U.S. at 537 A

to the second, the Court ruled: "T]he :

administrative convenience in dealing with

peg as a class is insufficient justifica-

pee oe the quality of community

Peesgco ge ae the jury in criminal

l2see, e.g., State v. Parker, 462 S.W.2d 737 (Mo

1971); Leighton v. Goodman, 311 F. Supp. 1181 ;

1183 (S.D.N.Y. 1970), and other decisions cited in

Appendix to Appellees’ Motion to Affirm at 13-16

Edwards v. Healy, 421 U.S. 772 (1975). ‘

Even prior to Taylor, however, the federal

courts and the vast majority of the states adminis-

tered jury service statutes and regulations with no

automatic exemption for women. See Library of Con-

gress Legislative Reference Service, American Law

Division, June 10, 1970 report to the Senate, pub-

lished in Hearings on S.J. Res. 61 Before the Subcomm

on Constitutional Amendments of the Senate Comm. on :

the Judiciary, 91st Cong., 2d Sess. 725-27 (1970);

Alexander v. Louisiana, 405 U.S. 625, 639-40 n.8 é

(1972) (Douglas, J. concurring); Brief for Appellees

at 20 n.*, Edwards v. Healy, 421 U.S. 772 (1975);

(footnote continued)

18

Taylor was brushed aside by the court

below on the ground that the former Louisiana

system called upon women to opt in, while

Missouri invites them to opt out. But

whether the system is opt in or opt out, 13

a state exempting all women plainly does

Maintain "none of them should be required

to perform jury service." And “the admin-

istrative convenience in dealing with

women as a Class" remains, in the opt out

variant as in the opt in version, the basis

"for diluting the quality of community judg-

ment represented by the jury in criminal

trials." In short, the Missouri Court's

attempt to distinguish Zeyior cannot with-

stand reasoned analysis.

(footnote continued)

Comment, Twelve Good Persons and True: Healy v.

Edwards and Taylor v. Louisiana, 9 Harv. C.R.-C.L.

L. Rev. 561 (1974).

13New York had an "opt out" system similar to

Missouri's, N.Y. Jud. Law §§ 507(7), 599(7), 665(7)

(McKinney 1940), which the legislature hastened to

repeal after the Taylor decision. 1975 N.Y. Laws,

c.4. As the Governor explained, "[w]hile there are

some minor differences between the Louisiana statute

and the New York women's exemption they are basi-

cally similar and there is virtually no doubt that

provisions of the Judiciary Law repealed by the bill

will eventually be declared unconstitutional under

the Taylor decision." Governor's Memorandum, Ap-

proval of Bills, 1975 N.Y. Sess. Laws at 1731

(McKinney). See People v. Moss, 80 Misc. 2d 633,

366 N.Y.S. 2d 522 (Sup.. Ct. 1975).

Vsee Daughtrey, supra note 5.

(footnote continued)

19

Significantly, the Missouri court did

not even essay the once standard argument,

that women should be exempt because they

are (or should be) occupied day round

tending the hearth. On the contrary, in

an ironic twist, that court suggested wom-

en's substantial labor force participation 5

as a reason for their severaly limited

numbers on jury panels. It conjectured

(footnote continued)

Taylor reiterates the leeway states have to

provide "reasonable exemptions," 419 U.S. at 534,

538, but underscores that there is nothing reason-

able about an exemption based solely on womanhood:

"It is untenable to suggest these days that it

would be a special hardship for each and every

woman to perform jury service or that society can-

not spare any women from their present duties."

Id. at 534-35 (emphasis in original).

l5c¢, Taylor v. Louisiana, 419 U.S. at 535 n.17.

As of June 1977, 56.1% of all women between the ages

of twenty and sixty-four were in the paid labor

force. Bureau of Labor Statistics, U.S. Dep't of

Labor, Employment and Earnings, Table A-3 (July

1977). In March 1977, 46.4% of women with children

under the age of eighteen were in the paid labor

force, including 58.3% of those with children be-

tween the ages of six and seventeen, 48.9% of those

with children between three and five, and 35.1% of

those with children under three. Women constituted

41.1% of the total labor force. Hayghe, Marital

and Family Characteristics of Workers, March 1977,

Tables 1 & 3, Monthly Labor Review, Bureau of

Labor Statistics, U.S. Dep't of Labor (Feb. 1978).

And whether they are gainfully employed or not,

women do not necessarily have heavy duties in the

home; as of March 1976, 46.3% of all families had

(footnote continued)

20

that many of them qualified for, and there-

fore would seek, other exemptions, as

government workers or teachers, for example.

556 S.W.2d at 16. But as Judge Seiler's

dissenting opinion points out, 556 S.W.2d

at 24, experience in the federal district

court serviving the same territory demon-

strates the conjecture is fanciful.

Although occupational classes excused

are virtually identical in the two court

systems, and despite a childcare excuse for

women in the federal plan, 16 female jurors

turn up in federal court in impressive num-

bers: women account for 53% of the persons

on the master wheel, and 39.8% of the actual

jurors. In short, it appears that occupa-

tional exemptions would not explain, even

in small measure, the gross male/female

imbalance Missouri state court jury panel

figures reveal.

The sole rationale offered by the

Missouri court, that the exemption is a

"female privilege," is at best misguided.

As Judge Seiler's dissenting opinion empha-

sizes, 556 S.W.2d at 23, the right at stake

is the criminal defendant's. That right

-- to a jury drawn from a panel fairly

(footnote continued)

no children under the age of eighteen. Bureau of

the Census, Current Population Reports, Household

and Family Characteristics: March 1976, Table 6

(Series P-20, No. 311, Aug. 1977).

‘Orxcuse is provided, on request, for a woman

charged with responsibility for care of a minor child

without adequate domestic help. See 556 S.W.2d at

24 n.4 (dissenting opinion).

iepaeaaacaea cinemas aia wee ieee ei:

21

representative of the local population --

1s safeguarded by making jury service a

statutory duty, a "crucial citizen responsi-

bilit[y]." Broadway v. Culpepper, 439 F.2d

1253, 1258 (5th Cir. 1971). But Missouri

dilutes the quality of defendant's right,

it eliminates the possibility of a jury

genuinely reflecting the community's com-

position, by effectively assuring that men's

participation will overwhelm women's.

Not only did the Missouri court fail

to scrutinize the supposed favor to females

from the perspective of the criminal defen-

dant's right, it also ignored the historic

roots and contemporary impact of the vaunted

women's privilege." By 1977, only a court

wearing blinders could shut from sight the

reality that "statutes exempting women from

jury service . . . reflect the historical

male prejudice against female participation

in activities outside the family circle."

Johnston & Knapp, Sex Discrimination by Law:

A Study in Judicial Sereperts ve, 46 N.Y.U.

L. Rev. 675, 718 (1971).47 Jury service is

acclaimed as "one of the basic rights and

obligations of citizenship," "a form of

participation in the process of government."

Penn v. Eubanks, 360 F. Supp. 699, 702

(M.D. Ala. 1973). "“"{[SJervice on a jury is

of material aid to men and women who have

that experience. It gives them an insight

into the administration of our judicial

System and tends to increase their confi-

dence in the administration of justice."

17as late as 1968, the Missouri Supreme Court

held constitutional total exclusion of women from

juries. See 556 S.W.2d at 13 n.3.

22

Letter by Chief Justice Leland Carr of the

Michigan Supreme Court, reprinted in W. Hart,

Long Live the American Jury 19 (1964). A

scheme that treats men's service as essen-

tial, women's as expendable hardly assists

female citizens to view themselves and be

viewed by others as full-fledged partici-

pants in community affairs. Rather, the

arrangement reinforces the stereotype that

government is not a woman's business. In

failing to recognize adult females as per-

sons with full civic responsibilities as

well as rights, Missouri betrays a view of

women ultimately harmful to them. Cf.

Alexander v. Louisiana, 405 U.S. 625, 639-

42 (1972) (concurring opinion) .18

In sum, Missouri's notion of "female

privilege," the state's invitation to every

woman to avoid jury duty by self-exemption,

defeats the federal constitutional objective

of a representative cross-sectional jury

and serves no countervailing state interest.

18c¢, Daughtrey, supra note 5, 43 Tenn. L. Rev.

at 50 (reporting a Tennessee legislator's response

to Taylor: "We don't know what the Court said and

don't really care. I don't want my wife and daughter

to hear testimony in criminal court."). Similarly

indicative of the image of women protected by

automatic exemption, and the insidious impact of

such "favors" thrust on women, are De Kosenko v.

Brandt, 63 Misc. 2d 895, 898, 313 N.Y.S.2d 827, 830

(1970) (litigant who sought women on her jury told

not to complain to the court, challenging automatic

exemption of females, but to address her lament to

her sisters who prefer "television soap operas,

(footnote continued)

23

"It is fair to infer that habit, rather than

analysis or actual reflection, made it seem

acceptable"!9 to type women as persons whose

assistance in the administration of justice

is not really needed by the community.

"That kind of automatic reflex,"29 noblesse

oblige toward the sex long assumed to rate

second, 21 perpetuates "a view of American

womanhood offensive to the ethos of [con-

temporary] society." United States v. Dege,

364 U.S. 51, 53 (1960). Exemption of women

from civic responsibility, not on the basis

of what they do but who they are, signals

their "inferior legal status without regard

to [their] actual capabilities," Frontiero

v. Richardson, 411 U.S. 677, 687 (1973),

and stigmatizes all women, even those who

do not wish to participate in community af-

fairs. Cf. Peters v. Kiff, 407 U.S. 493,

499 (1972).

(footnote continued)

bridge and canasta, the beauty parlor and shopping"

to jury service), and Goldblatt v. Board of Educa-

tion, 52 Misc. 2d 238, 275 N.Y.S.2d 550 (1966),

aff'd, 57 Misc. 2d 1089, 294 N.Y.S.2d 272 (1968)

(exclusion of compensation for female teachers who

serve on juries, while male teachers receive full

salary less jury fees, is "reasonable" because men

must serve, but women can avoid jury duty for the

asking). See generally Ginsburg, Gender and the

Constitution, 44 U. Cin. L. Rev. 1 (1975).

19califano v. Goldfarb, 430 U.S. 199, 222-23

(1977) (Stevens, J., concurring).

201d,

21cee generally S. deBeauvoir, Second Sex (1949);

E. Janeway, Man's World, Woman's Place (1971); W.

Chafe, The American Woman (1972).

24

The convenience of inviting women to

opt out simply because they were born fe-.

male was not relied upon by the Missouri

court, nor is that rationale tenable after

Taylor22 and in light of experience in the

federal courts and the vast majority of

state courts where no "women's privilege"

is retained. And surely Missouri's adher-

ence to an "archaic and overbroad generali-

zation about women" cannot be disguised as

"compensation for past discrimination."

See Califano v. Webster, 430 U.S. 313, 317

(1977); Weinberger v. Wiesenfeld, 420 U.S.

636, 643, 648 (1975). For labeling a

woman's service expendable hardly redresses

"our society's longstanding disparate treat-

ment of women." Califano v. Goldfarb, 430

U.S. 199, 209 n.8 (1977). Any jury service

excuse required by some women because of

work responsibilities at home or in the

marketplace can be preserved, as it is in

federal court and most states, by provi-

sions utilizing functional classifications

(i.e., hardship and occupational exemptions)

rather than womanhood as the basis for ex-

emption, 23

22see also Califano v. Goldfarb, 430 U.S. 199, 217

(1977) (rejecting the argument that gender is an ap-

propriate substitute for functional classification

whenever sex typing "save[s] the Government time,

money and effort").

23The notion that women do not hold jobs from

which absence is manageable ignores, inter alia,

that home burdens, as well as burdens of employment

outside the home, are increasingly shared by men and

women, that many women do not perform the mother-wife

role, that many who do perform that role have ample

assistance at home. Indeed, when no sex specific

(footnote continued)

25

Unnourished by sense, but reflecting

"the role-typing society has long imposed"

upon women, Stanton v. Stanton, 421 U.S. 7,

15 (1975), Missouri's automatic exemption

for every woman insures perpetuation of

unrepresentative juries, and thereby con-

ditions for the administration of criminal

justice inconsistent with the sixth and

fourteenth amendments. The scheme estab-

lished by Mo. Const. Art. I, § 22(b), and

Mo. Rev. Stat. § 494.031(2) (Supp. 1975),

injures "the jury system," "the law as an

institution," "the community at large," and

"the democratic ideal reflected in the

processes of our courts." Ballard v. United

States, 329 U.S. 187, 195 (1946).

(footnote continued)

exemption is provided, women appear less inclined

than men to avoid jury duty. See Daughtrey,

Supra note 5, 43 Tenn. L. Rev. at 75 n.312.

26

CONCLUSION |

For the reasons stated above, the

decision below should be reversed, and the

jury service exemption for "any woman" man-

dated by Mo. Const. Art. I, § 22(b), and !

Mo. Rev. Stat. § 494.031(2) should be de- : ,

clared unconstitutional.

Respectfully submitted.

LEE M. NATION

JAMES W. FLETCHER |

KEVIN LOCKE

Assistant Public Defender

1305 Locust, Suite 202

Kansas City, MO 64106

RUTH BADER GINSBURG

KATHLEEN WILLERT PERATIS

American Civil Liberties

Union Foundation

22 East 40th Street

New York, NY 10016

Attorneys for Petitioner

June, 1978

Attorneys for the Petitioner gratefully acknowledge

the assistance provided in preparation of this brief

by Cory Streisinger, second year student at Stanford

Law School.