Petition — Hidalgo County Grand Jury Commissioners v. Ciudadanos Unidos De San Juan
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' oupreme Court, U. 3.
80-741 | FILED
cai ae OCT 29 1980
S RODAK, JR., CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980
HIDALGO COUNTY GRAND JURY
COMMISSIONERS, Et Al.,
V.
CIUDADANOS UNIDOS DE SAN JUAN, Et Al.,
Respondents
DELLIS PRATER, Et Al.,
Petitioners
Petitioners
V.
ROBERT CABALLERO, Et AL.
Respondents
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
MARK WHITE W. BARTON BOLING
Attorney General of Texas Assistant Attorney General
Chief, Enforcement Division
JOHN W. FAINTER, JR.
First Assistant NANCY M. SIMONSON
Assistant Attorney General
RICHARD E. GRAY, III
Executive Assistant P.O. Box 12548, Capitol Station
Austin, Texas 78711
(512) 475-3281
Attorneys for Petitioners
IT.
ITI.
-j-
QUESTIONS PRESENTED
Whether Rule 25(d), F.R.C.P., can constitution-
ally provide for automatic substitution of a
defendant state officer without a showing by
the Plaintiff that the substituted state official
has himself engaged in, or threatened to en-
gage in, the alleged unlawful act of his pre-
decessor.
Whether Respondents have alleged a “case or
controversy” as required by Article III of the
United States Constitution in that Respond-
ents’ allegations of future discriminatory
action are conjectural, the party Defendants
have no relation to the alleged past abuse, the
party Plaintiffs have no right to personally
benefit from the outcome, and the injury
alleged is not subject to judicial redress.
Whether Defendant Judge possesses judicial
immunity from suit for declaratory and injunc-
tive relief.
-ji-
TABLE OF CONTENTS
Page
EE SEIS SPEED scccscsscessnasusiiieseconcalvsbenbesprocesscenisuscsiotie i
scan cit acchasnanigaitenicnmmplipneeneaiabamepecionnagatenaiteds 2
IIIT ssscnhns iccsdalinteesbesinsekeabacnensidattiuactnisibeaodinionsniseuaiaabh 2
STATUTORY PROVISIONS INVOLVED .............cccesssssesssessees 2
CPT GPU BOM GAMMEEED voccccoccoscssnccscosccnessosccosvesbereconscensones 4
REASONS FOR GRANTING THE WRIT «0.00... ccececeeseseeeeeeeeees 6
I. THE DECISION BELOW CONFLICTS WITH
THIS COURT’S DECISION AND THE DECI-
SIONS OF OTHER CIRCUITS AND GIVES
RULE 25d), F.R.Civ.P., AN UNCONSTITU-
TIONAL INTERPRETATION ....cccccccccscsessecsesscssosesses 6
II. THE DECISION BELOW CONFLICTS WITH
THE APPLICABLE DECISIONS OF THIS
COURT AS TO THE PROPER INTERPRETA-
TION OF THE “CASE OR CONTROVERSY”
REQUIREMENT OF ARTICLE III. ............csccssseeees 9
A. The Decision Conflicts With This Court’s
Interpretation of “Mootness”’. .............::cssccscseeeseeeeerenes 10
B. The Decision Below Conflicts With This Court’s
Sepbereretation GF “THORNE. cccsccsscsescccscssccssccsssccoseesees 10
ITI. THE DECISION BELOW THAT JUDICIAL
IMMUNITY DOES NOT EXTEND TO EQUIT-
ABLE RELIEF IS IN CONFLICT WITH THE
DECISIONS OF OTHER COURTS OF AP-
PEALS AND PRESENTS AN IMPORTANT
ISSUE THAT COMPELS DECISION BY THIS
SIE dudicineheiissnetiseslpabuiesabesitnenedsenndsoietiesniecenieneniaguenaiecles 14
IID” ic ciienccdlstesencenenvosenssnineanmnennsisnsitamiipeeninaneentaaspioneie 17
APPENDIX A
(Opinion and Judgment of the Court of Appeals) ................ A-l
-ili-
APPENDIX B
(Unreported, Memorandum Opinion of the District Court
ci an Us cas enuapebaennteanacmsnendbaacanceibeeae B-1
APPENDIX C
(Unreported, Memorandum Opinion of the District Court
OE POPU sd ocnscncsinnshcecss vecnioandenteiasssdoennnelibaneaeteiabanbabaiadenie entails C-1
-jv-
TABLE OF AUTHORITIES
Cases Page
Bacar ws Caer, BE Ti. BS CIO vnicecsccncsevsterscstapscopeinesicens 12,13
Castaneda v. Partida, 430 U.S. 492 (1977) .......:scssssesessesessenees 14
Cheramie v. Tucker, 493 F.2d 586 (5th Cir.),
cart. denied, 419 U.S. SEB (IGT4E) ...ccccocccccscoseccorssceosensoseccessesosee 16
Conover v. Montemuro, 477 F.2d 1073 (8rd Cir. 1973) ............. 16
Defunis v. Odegaard, 416 U.S. 312 (1974) .............ccccesssseesssseeees 10
Ex parte La Prade, 289 U.S. 444 (1983) ...........ccssscccssserceseeees 7,8,9
Four Star Publications, Inc. v. Erbe, 304 F.2d 872
IT, “III xchsicschaeuiicateck dca odadianeansonsbasginsiebaionenaniaiatcinaicuetbabinsaneiaias 9
Golden v. Zwickler, 394 U.S. 103 (1969) .........cccsceceseeeees 11,12,13
Harris v. Harvey, 605 F.2d 330 (7th Cir. 1979) ............:cccceceeeees 16
Kremens v. Bartley, 431 U.S. 119 (1977) .............cccccsssssssrsceeeeeees 10
MacKay v. Nesbit, 285 F.2d 498 (D.Alas. 1968),
aff'd, 412 F.2d 846 (9th Cir.), cert. denied,
ee, ED veteistaamendtsensenseatiniasthassceneiencasenesepetesenstniteiasinns 16
Massachusetts v. Mellon, 262 U.S. 447 (1928) .....ccccsseseeeeeers 12
O’Shea v. Littleton, 414 U.S. 488 (1974) occ eeeeeeees 10,11,12,13
Person v. Association of Bar of New York, 554 F.2d 534
(2d Cir.), cert. dented, 434 U.S. 924 (1977) .....ccsessesseeseeees 15,16
Powell v. McCormack, 395 U.S. 486 (1969) ...........ccccccecceeeeeeeeeee 10
Preiser v. Newkirk, 422 U.S. 561 (1975) ..........sscsscsscssssssseeessees 10
Bee WTO, GE ais. DU CR POD, cicestnsstessccnenernineesnsrviscnvensiotiones 10
Sarteschi v. Burlein, 308 F.2d 110 (3d Cir. 1975) ..............cceceee )
Slavin v.Curry, 574 F.2d 1256 (5th Cir.), withdrawn
OS Ee re Fe I acral ccecesnccicctnviciiecnninianne 15,16
-Vy-
Smallwood v. United States, 358 F.Supp. 398 (E.D.Mo.),
ONE, GBB F DE TACT Gitte Cir. TOTED. ccccececcnccnctesscscssctnccnsionposonsne 16
Spomer v. Littleton, 414 U.S. 514 (1974) ....... cesses 7,8,9,11,13
Simon v. Eastern Kentucky Welfare Rights Organization,
IS Br a Be OD crises ibvsncsoninenscsls tcsiniiiancneanntidiiaanateamsamadiaie 12,14
Steffel v. Thompson, 415 U.S. 452 (1974) .........ccsseccsssesseeeeseees 10
Supreme Court of Virginia v. Consumers Union of the
United States, __. U.S. ____ , 100 S.Ct. 1967
I osssizciicetticsisink ise iciedcitsccgeipetatihs enieseaeibieleenialaaeiamane™ caneeaes 15,16
United States Parole Comm. v. Garaghty, __. U.S. ___.,
I: SE GRID Sccsnisieesstncrsveasiiasebecathsisevsasssthanabiaidabcasandanianss 10
United Steelworkers of America, AFL-CIO v. Bishop,
ee ee CRE, BND sositittedscensceestnvcntniiadndaanitiamen 16
Warth v. Seldin, 422 U.S. 490 (1975) ............ccssssssssscceeneees 12,13,14
Constitutional or Statutory Provisions
RT eee ee 2,6,7,8,9
Tex. Code Crim. Proc. Ann. art. 19.01 (Vernon) ...........::0000 3,11
Tex. Code Crim. Proc. Ann. art. 19.06 (Vernon) .................. 4,11
United States Constitution, art. III, section 2 ............ 2,9,10,13,14
Be eis SMILED ccccsiersvccvsninnasiiniinnssnsisbitiaietdienntenigisanaiinadaieiamamiesaitia 2
Other Authorities
Wee, Pemared Comrts (GIG) ...ccccccecsvscccesccscsecsncsscsessneeecessteaessennte 8
Wright and Miller, Federal Practice and Procedure (1972) ...... s
No. 80-
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980
HIDALGO COUNTY GRAND JURY
COMMISSIONERS, Et Al.,
Petitioners
¥.
CIUDADANOS UNIDOS DE SAN JUAN, Et AL.
Respondents
DELLIS PRATER, Et Al.,
Petitioners
V.
ROBERT CABELLERO, Et Al.,
Respondents
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
TO THE HONORABLE JUDGES OF THE
SUPREME COURT:
The Petitioners respectfully pray that a writ of
certiorari issue to review the judgment and opinion of
the United States Court of Appeals for the Fifth Circuit
entered in this proceeding on July 31, 1980.
-2-
OPINION BELOW
The opinion of the Court of Appeals is reported at 622
F.2d 807 (5th Cir. 1980) and appears as appendix A. The
unreported, memorandum opinion of the United States
District Court for the Southern District of Texas in
Ciudadanos appears as Appendix B. The Order of
Dismissal of the District Court in Caballero appears as
Appendix C.
JURISDICTION
The judgment of the Court of Appeals for the Fifth
Circuit was entered on July 31, 1980. This petition for
certiorari was filed within ninety (90) days of that date.
This Court’s jurisdiction is invoked under 28 U.S.C.
§1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
United States Constitution, art. III, §2, in pertinent
part,:
“the judicial power shall extend to all cases,
in law and equity, arising under this
Constitution, [and] laws of the United States. . .”
Rule 25 of the Federal Rules of Civil Procedure
provides in pertinent part:
25(d) Public Officers; Death or Separation
from Office:
When a public officer is a party to an action in
his official capacity and during its pendency
dies, resigns or otherwise ceases to hold office,
the action does not abate and his successor is
automatically substituted as a party.
Proceedings following the substitution shall be
in the name of the substituted party, but any
misnomer not affecting the substantial rights
-3-
of the parties shall be disregarded. An order of
substitution may be entered at any time, but the
omission to enter such an order shall not affect
the substitution.
Rule 25(d), F.R.C.P.
Art. 19.01 of the Texas Code of Criminal Procedure
provides:
Art. 19.01(a) The district judge, at or during
any term of court, shall appoint not less than
three, nor more than five persons to perform
the duties of jury commissioners, and shall
cause the sheriff to notify them of their appoint-
ment and when and where they are to appear.
The district judge shall, in the order appointing
such commissioners, designate whether such
commissioners shall serve during the term at
which selected or for the next succeeding term.
Such commissio:.°*s shall receive as
compensation for eav : day or part thereof they
may serve the sum of Ten Dollars, and they
shall possess the following qua!'fications:
1. Be intelligent citizens of the county and
able to read and write the English language;
2. Be qualified jurors in the county;
3. Have no suit in said court which requires
intervention of a jury;
4. Be residents of different portions of the
county; and,
5. The same person shall not act as jury
commissioner more than once in the same year.
(b) In lieu of the selection of prospective jurors
by means of a jury commission, the district
judge may direct that 20 to 50 prospective
-4-
grand jurors be selected and summoned, with
return on summons, in the same manner as for
the selection and summons of panels for the
trial of civil cases in the district courts. The
judge shall try the qualifications for and
excuses from service as a grand juror and
impanel the completed grand jury in the same
manner as provided for grand jurors selected
by a jury commission.
Art. 19.06 of the Texas Code of Criminal Procedure
provides:
Art. 19.06. The jury commissioners shall select
not less that 15 nor more than 20 persons from
the citizens of the county to be summoned as
grand jurors for the next term of court, or the
term for which said commissioners were
selected to serve, as directed in the order of the
court selecting the commissioners. The
commissioners shall, to the extent possible,
select grand jurors who the commissioners
determine represent a broad cross-section of
the population of the county, considering the
factors of race, sex and age.
STATEMENT OF THE CASE
Two similar 42 U.S.C. §1983 civil rights actions were
brought in the United States District Court for the
Southern District of Texas alleging that due to the
systematic exclusion of four identifiable groups --
Mexican-Americans, women, young people (ages 18-28),
and poor people (those with incomes below the
government designated poverty level) -- Plaintiffs had
been denied the opportunity to serve on the grand jury.
The first action, styled Ciudadanos Unidos De San
Juan, et al. v. Hidalgo County Grand Jury
-5-
Commissioners, et ai.!, sought monetary, injunctive and
declaratory relief from the jury commissioners of
Hidalgo County and the judge of the 98rd Judicial
District Court of Texas and all successors. The second
action, styled Caballero v. Prater?, sought injunctive and
declaratory relief from the jury commissioners of
Willacy County and their successors.
The district court dismissed the action in Ciudadanos
by memoranda opinion (appendix B) on the grounds
that no justiciable controversy existed, stressing the
plaintiffs’ lack of standing, the speculative nature of the
claim, and the unavailability of effective relief from a
federal court. Plaintiffs appealed to the Fifth Circuit,
abandoning their request for monetary damages. The
district court subsequently dismissed Caballero sua
sponte based on Ciudadanos. (Appendix C) Appeal was
likewise taken in that case.
'Plaintiffs in this action are Ciudadanos Unidos de San Juan,
Ciudadanos Unidos de Donna, Arturo Guajardo, Juan Maldonado,
Pablo Martinez, Jesus Ramirez, Jesus Joel Solis, Lalo Arcuate,
Roberto F. Loredo, Conrada Arcaute, Apolonia S. Mendoza,
Antonio M. Garcia, and Juana Valdez Cox.
The defendants are the former Grand Jury Commissioners of
Hidalgo County, Texas: David Smith, John Joe Stevens, Mrs.
Henry Nelson, Romeo Escobar and Adolfo De La Garza and the
former Judge of the 93rd District Court of Hidalgo County. The five
Grand Jury commissioners were discharged by the Court on
October 27, 1976. (ROA at 37). Judge Magus Smith retired on
December 31, 1976. His successor in office is Judge Joe Cisneros.
2Plaintiffs in this suit are Robert Caballero, Rafael Cantu,
Yolanda Castaneda, Eloy Castaneda, Angelita Reyna, Sylvia
Caballero, Justino Fonseca, Jr., and Abelardo Fonseca.
The defendants are Dellis Prater, Dora Durham, Victor
Rincones, Janie Perales, and Estela Cantue, Willacy County Grand
Jury Commissioners for the Fall 1977 term.
-6-
The Fifth Circuit consolidated the two cases because
of their similar allegations. The Fifth Circuit reversed
and remanded, finding that the plaintiffs had presented
a justiciable controversy that should not have been
dismissed at this preliminary stage. That court held
that plaintiffs, as members of an excluded class, were
proper parties to bring the action; that the allegations of
past unlawful action, an alleged ten year pattern of
discrimination, were sufficient to create a live
controversy even though each grand jury compilation
was a& discrete act; that the controversy automatically
continued live with the successors pursuant to Rule
25(d), F.R.Civ.P.; that the action was not mooted by
amendments to the Texas grand jury selection system;
and that the district court erred in dismissing for an
inability to fashion an appropriate remedy.
A most significant element of this case, since all the
issues relate to its very jusiciability, is that the
circumstances of the case are now quite distinct from
those at the time it was first brought. While these factors
are more fully developed in the argument, it should be
noted that all defendant parties are now new with no
relation to the past actions, the grand jury selection
process has been the subject of significant amendment
affecting the issues in this case, and consequently,
entirely ne and distinct parties are now preparing to
perform their discrete act of grand jury selection.
REASONS FOR GRANTING THE WRIT
I.
THE DECISION BELOW CONFLICTS
WITH THIS COURT’S DECISIONS AND
THE DECISIONS OF OTHER CIRCUITS
AND GIVES RULE 25(d), F.R.Civ.P., AN
UNCONSTITUTIONAL INTERPRE-
TATION.
a.
The Fifth Circuit opinion in Ciudadanos Unidos De
San Juan misreads this Court’s opinion in Spomer v.
Littleton, 414 U.S. 514 (1974), ignores the constitutional
importance of Ex parte La Prade, 289 U.S. 444 (1933),
and thus gives Rule 25(d), F.R.Civ.P., a clearly
unconstitutional interpretation.
Ciudadanos held that under Rule 25(d) the
controversy continues live against judge Cisneros
despite the absence of any allegations that he has
participated in, or threatened to continue, the alleged
discrimination. In light of the holdings of this Court and
other circuits and scholarly authority, this
interpretation is of doubtful constitutional validity.
In Ex parte La Prade, supra, this Court considered
the predecessor to Rule 25(d), 28 U.S.C. §780, which did
not expressly provide for automatic substitution, and
found that the defendant state officer was not liable for
acts or threats by his predecessor, but could be proceed-
ed against based only on his own actions or threats to
pursue unconstitutional conduct. The Court’s
statements made clear, however, that their holding was
not an instance of statutory interpretation, but rather,
was mandated by the Constitution:
When ernstruing the section, it is to be borne in
mind that Congress has authority to direct the
conduct of federal officers in proceedings
brought by or against them as such and may
ordain that they may sue or be sued as
representatives of the United States and stand
in judgment on its behalf. . .but that Congress is
not so empowered as to state officers.
289 U.S. at 458. (emphasis supplied).
The new rule, Rule 25(d), which the Fifth Circuit
relied on in Ciudadanos, purports to allow substitution
against a state official without a showing of substantial
need to continue and maintain the action against such
-8-
state officers, a requirement that, in light of Ex parte La
Prade, “may well be of constitutional origin.” Wright,
Federal Courts §77 at 383. As Professors Wright and
Miller state:
If the suit is against a state officer, however, the
mere fact that the rule purports to authorize
substitution does not make substitution proper,
anymore than did the statute in force when Ex
parte La Prade was decided... .the action must
be dismissed as moot unless plaintiff makes the
needed showing that the officer threatened to
continue the policy of his predecessor.
7A Wright & Miller, Federal Practice and Procedure:
Civil §1960 and 682 (1972); Wright, Federal Courts §77
at 384 (3d ed., 1976).
Wright cites Spomer v. Littleton, supra, in support of
this proposition. A careful reading of Spomer strongly
suggests this interpretation.
In Spomer this Court examined the history and
application of Rule 25(d). Particular notice was taken of
the Advisory Committee Note which provides that
“automatic substitution” “[i]n general. . .will apply
whenever effective relief would call for corrective
behavior by the one then having official status and
power, rather than one who has lost the status and power
through ceasing to hold office.” This Court then stated:
“The question of whether corrective behavior is thought
to be necessary is, of course, dependent on whether the
dispute with the predecessor continues with the
successor.” 414 U.S. at 521, n.9.
Whether this dispute does continue with the successor
is not based on any sort of “automatic” assumption, but
must be reflected in the record: a showing by the
-9-
plaintiff is clearly required.’ The Court noted in Spomer
that there is “nothing in the record upon which we may
fairly base a conclusion that a concrete controversy”
exists between the original plaintiffs and the
substituted defendants. 414 U.S. at 520. The alleged
discriminatory behavior in the case sub judice is
likewise personal to the defendant.
The Eighth Circuit is in accord with La Prade and
Spomer and has held in a case similar to this one that,
with regard to state officers, Rule 25(d) is of doubtful
constitutionality and that there must be, in that
instance, a showing of substantial need to continue the
action. Four Star Publications, Inc. v. Erbe, 304 F.2d 872
(8th Cir. 1962). Likewise, the Third Circuit in Sarteschi
v. Burlein, 308 F.2d 110, 114 (3d Cir. 1975) has held that
“to obtain injunctive relief against the successor there
must be some indication that the successor would
otherwise continue the unconstitutional practices
alleged in the complaint.”
These conflicts justify the grant of certiorari to review
the judgment below. The Fifth Circuit conflict with this
Court and the other circuits justify the grant of
certiorari to review the judgment below.
IT.
THE DECISION BELOW CONFLICTS
WITH THE APPLICABLE DECISIONS OF
THIS COURT AS TO TH PROPER
INTERPRETATION OF THE “CASE OR
CONTROVERSY” REQUIREMENT OF
ARTICLE III.
8The Fifth Circuit has here, in effect, shifted the burden of proof
from the plaintiff to the defendant at the initial stage of the action.
Now, a defendant who has no personal connection with past alleged
illegal action must come in to court and show, not only that he has
not taken such unlawful discriminatory action, but that he will not
do so at some unspecified, and unspecifiable, time.
-10-
Article III of the United States Constitution requires
that a viable case or controversy exist at the time a
judicial determination is reached. Kremens v. Bartley,
431 U.S. 119 (1977); Preiser v. Newkirk, 422 U.S. 561
(1975). This Court has articulated that the
constitutionally mandated “case or controversy” is
composed of a number of separate concepts. Two of these
are the concepts of “mootness” and “standing.”
A.
The Decision Conflicts With This Court’s
Interpretation Of “Mootness”.
An element of the Article III case or controversy
requirement is the concept of mootness. This Court has
recently re-emphasized: “Mootness has two aspects:
‘when the issues presented are no longer live or the
parties lack a legally cognizable interest in the
outcome.’ ” United States Parole Comm. v. Garaghty,
__ U.S. __ , 100 S.Ct. 1202, 1208 (1980), quoting
Powell v. McCormack, 395 U.S. 486, 496 (1969).
This case involves the first aspect of mootness: that
there exist a live controversy. The courts will not
generally hear a case that is no longer threatening legal
rights. O’Shea v. Littleton, 414 U.S. 488 (1974); Preiser v.
Newkirk, supra; Defunis v. Odegaard, 416 U.S. 312
(1974). An exception is made where because of
inexorable time factors a case would always be moot.
Roe v. Wade, 410 U.S. 113 (1973). This is not such a case.
This Court has made clear that the subjective fear
that alleged wrongful conduct will recur is insufficient
to constitute a live controversy. “The rule in federal
cases is that an actual controversy must be extant at all
stages of review, not merely at the time the complaint is
filed.” Preiser v. Newkirk, supra, 422 U.S. at 401, citing
Steffel v. Thompson, 415 U.S. 452, 459 n.10 (1974).
Though the Fifth Circuit does not purport to eschew this
abstract proposition of law, its decision in the case cub
sh}.
judice is inconsistent with this Court’s continual and
consistent application of that very concept. Thus, this
Court has stated: “Past exposure to illegal conduct does
not in itself show a present case or controversy. . .”
O’Shea v. Littleton, supra, 414 U.S. at 495. The present
case falls clearly into the legal concept embodied by this
statement and the case of O’Shea v. Littleton itself.
In effect, Respondents rely only on allegations of such
“past exposure to illegal conduct.” In line with this
Court’s interpretation of mootness, the present action
was moot from the outset, at no time presenting a live
controversy. The survey of the particular facts of this
case emphasizes the lack of viable case or controversy.
In essence, nothing remains the same from the
circumstances out of which the alleged past abuse arose.
The defendant parties are all “successors,” from the
grand jury commissioners to the state judge. They have
not been parties to the allegedly illegal action, action
that is “personal,” as this Court described in Spomer v.
Littleton, 414 U.S. 514 (1974). They have not
participated in or threatened any unlawful conduct.
Whether they may do so at some unspecified future time
is merely speculative, and this speculation is not enough
to create a case or controversy. “The injury or threat of
injury must be both ‘real and immediate’ not
‘conjectural’ or ‘hypothetical’ ”. O’Shea v. Littleton, 414
U.S. 488, 494 (1974), citing Golden v. Zwickler, 394 U.S.
103, 109-110 (1969).
Also changed is the Texas selection system for grand
jurors. Tex. Code Crim. Proc. Ann. art. 19.01 (Vernon)
has been amended to provide the state district judge
with the option of using a random selection system
rather than the key man system here attacked.
Additionally, if the key man system is used, the
amendments now mandate that the grand jurors
represent a broad cross section emphasizing the factors
of race, sex, and age. Tex. Code Crim. Proc. Ann. art.
19.06 (Vernon). To ignore this change in state law
-12-
strikes at the very heart of federalsim and diminishes
state initiative and control in a very significant area of
state interest and concern -- administering the criminal
laws and justice of the state. In ruling that this action is
not moot, the Fifth Circuit is in clear conflict with the
constitutionally-mandated jurisdictional limits so
carefully articulated by this Court.
The Fifth Circuit’s conflict with the applicable
decisions of this Court on mootness justifies the grant of
certiorari to review the judgment below.
B.
The Decision Below Conflicts With This Court’s
Interpretation Of “Standing”.
Toward the purpose of satisfying the “case or
controversy” requirement, this Court has developed the
concept of standing and held that a Plaintiff must havea
“personal stake in the outcome,” Baker v. Carr, 369 U.S.
186 (1962), so as to insure concrete adversariness, for
“falbstract injury is not enough.” O’Shea v. Littleton,
supra, 414 U.S. at 494; Massachusetts v. Mellon, 262 U.S.
447 (1923). Additionally, “(t]he injury or threat of injury
must be both ‘real and immediate’ not ‘conjectural’ or
‘hypothetical’ ”. O’Shea v. Littleton, supra, citing Golden
v. Zwickler, 394 U.S. 1038, 109-110 (1969). The well
developed theme of this Court’s standing cases 1s that
the injuries suffered be personal to the plaintiff and that
this injury be the subject of a “case or controversy”
between the plaintiff and the party defendant he
attacks, and that the injury can be appropriately
redressed by the judicial action. Consequently, this
standing inquiry involves “both constitutional
limitations on federal-court jurisdiction and prudential
limitations on its exercise.” Warth v. Seldin, 422 U.S.
490, 498 (1975); Simon v. Eastern Kentucky Welfare
Rights Organization, 426 U.S. 26 (1976).
-13-
The Fifth Circuit, by holding that Plaintiffs in
Ciudadanos and Caballero have standing, has taken
action that exceeds both the constitutional and
prudential limitations so well articulated by this Court.
The constitutional dimension of the standing doctrine
“imports justiciability: whether the plaintiff has made
out a ‘case or controversy’ between himself and the
defendant within the meaning of article III.” Warth v.
Seldin, 422 U.S. at 498 (1975). In line with the
constitutional limitations articulated in Golden v.
Zwickler and O’Shea v. Littleton, the present action fails
to reveal an existing or immediate threat. The entire
action is premised on speculation and conjecture and
thus fails “to satisfy the jurisdiction requirements of the
federal courts.” O’Shea v.Littleton, supra, 414 U.S. at
498. Further inconsistency clouds the Fifth Circuit
ruling in the instant case because not only does the “case
or controversy” not exist, in that there is not any ongoing
or immediate injury or threat thereof, but the party
defendants have no relation whatsoever to the past
abuse that is alleged. Thus one is confronted with
Spomer v. Littleton, 414 U.S. 514 (1974), where this
Court noted that similar alleged discriminatory
behavior, there alleged against a former State’s
Attorney, was “personal” to that State’s Attorney and in
no way attached to his successor.
Likewise, the Respondents have not complained of an
injury that is personal to each, or any, of them. Clearly
no Respondent herein has a personal right to benefit
from the relief sought in this action and likely will not do
so. Yet this is what the “standing” concept requires: that
a plaintiff have “a personal stake in the outcome.” Baker
v. Carr, supra. For “the plaintiff still must allege a
distinct and palpable injury to himself, even if it is an
injury shared by a larger class of other possible
litigants.” Warth v. Seldin, supra, 422 U.S. at 501.
The prudential dimension of standing goes beyond this
-14-
and inquires “whether assuming justiciability of the
claim, the plaintiff has shown as injury to himself that is
likely to be redressed by a favorable decision. Absent
such a showing, exercise of its power by a federal court
would be gratuitous, and, thus, inconsistent with the
article III limitation.” Simon v. Eastern Kentucky
Welfare Rights Organization, supra, 426 U.S. at 38;
Warth v, Seldin, supra. Respondents have also failed to
satisfy the prudential aspects of standing: they have
alleged no injury subject to judicial redress. At this
stage Respondents seek simply equitable relief. Yet the
fashioning of any equitable relief in this case would be
entirely dependent “on the efforts and willingness of
third parties...” Warth v. Seldin, supra, 422 U.S. at 505.
It is clear that the Texas key man system itself cannot be
altered to eliminate this objective method of selection
since its constitutional validity has been upheld by this
Court in Castaneda v. Partida, 430 U.S. 492 (1977).
Hence, Respondents here seek judicial action
inconsistent with this Court’s opinions and the
limitations placed on the federal judiciary by Article III
of the Constitution.
The Fifth Circuit conflict with the applicable
decisions of this Court on standing justifies the grant of
certiorari to review the judgment below.
ITI.
THE DECISION BELOW THAT JUDICIAL
IMMUNITY DOES NOT EXTEND TO
EQUITABLE RELIEF IS IN CONFLICT
WITH THE DECISIONS OF OTHER
COURTS OF APPEALS AND PRESENTS
AN IMPORTANT ISSUE THAT COMPELS
DECISION BY THIS COURT.
This case presents a very important question of
federal law, not yet decided by this Court, that has been
the subject of conflicting decisions both within and
-15-
among the Courts of Appeals: whether judicial
immunity extends to suits for equitable relief.
In Supreme Court of Virginia v. Consumers Union of
The United States, __. U.S. ____, 100 S.Ct. 1967, 1976
(1980), this Court noted that it had not decided whether
“judicial immunity absolutely insulates judges from
declaratory or injunctive relief with respect to their
judicial acts. The Courts of Appeals appear to be divided
on the question whether judicial immunity bars
declaratory or injunctive relief; we have not addressed
the question.” One of the issues presented on appeal in
Supreme Court of Virginia was whether the Virginia
Supreme Court was immune from judgment under the
doctrine of judicial immunity. This Court did not have
occasion to consider this issue, however, finding that the
acts of the Virginia Supreme Court sued upon were of a
legislative or enforcement nature, rather than judicial.
The significance of this issue is reflected,
qualitatively, by its inseparable relationship to the
judicial system and that system’s remedial potential
and, quantitatively, by the many instances in which
lower courts have been confronted with consideration of
this problem. The ever increasing number of civil rights
suits and the constant raising of this issue are
documented by the cases herein and make the
clarification of this question of law imperative. That
these lower courts struggle, with a need for guidance, is
evidenced by their conflicting decisions and modes of
reasoning.
A number of judicial opinions have distinguished
between suits for damages and suits for declaratory or
injunctive relief, holding that judicial immunity is
available only against suits for damages. See, e.g., Slavin
v. Curry, 574 F.2d 1256 (5th Cir.), withdrawn as moot,
583 F.2d 779 (1978); Person v. Association of Bar of New
York, 554 F.2d 534 (2d Cir.), cert. denied, 434 U.S. 924
-16-
(1977); Harris v. Harvey, 605 F.2d 330 (7th Cir. 1979).
The Fifth Circuit in the case sub judice, citing Slavin v.
Curry, supra and Person v. Association of Bar of New
York, supra, summarily noted and decided the issue in
footnote 16 without discussion, stating simply that
“appellees have no immunity from equitable or
declaratory relief.” 622 F.2d at n.16.
Other Courts of Appeals, however, -- even some panels
sitting within the Fifth Circuit -- have rejected this
distinction that availability of immunity is dependent
upon whether the relief sought be damages or equitable.
See, e.g., United Steelworkers of American, AFL-CIO v.
Bishop, 598 F.2d 408 (5th Cir. 1979); Cheramie v.
Tucker, 493 F.2d 586 (5th Cir.), cert. denied, 419 U.S. 868
(1974); Conover v. Montemuro, 477 F.2d 1078 (8rd Cir.
1973)(Aldisert, J., concurring); Smallwood v.United
States, 358 F.Supp. 398 (E.D.Mo.), aff'd, 486 F.2d 1407
(8th Cir. 1973); MacKay v. Nesbit, 285 F.2d 498 (D.Alas.
1968), affd., 412 F.2d 846 (9th Cir.), cert. denied, 396
U.S. 960 (1969).
These cases, and others like them, have suggested
generally that the inquiry into the scope of immunity
should center on whether the requested relief
would interfere with the judge’s discretionary activities
thus inhibiting the judge in the performance of his legal
duties. The concern is implied in the case sub judice by
the gross interference that would emanate from
implementation of the requested relief. It would result
in complete federal management and oversight of a
state judge’s discretionary activities committed to him
by state law, a result clearly inconsistent with the
policies underlying judicial immunity.
‘See, also Supreme Court of Virginia v. Consumers Union of the
United States, supra, 100 S.Ct. at 1976 n.3.
-]7-
The importance of this issue to the function of the
judicial process and the conflicts among the Courts of
Appeal concerning it justify the grant of certiorari to
review the judgment below.
CONCLUSION
For these reasons, a writ of certiorari should issue to
review the judgment and opinion of the Fifth Circuit.
Respectfully submitted,
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY, III
Executive Assistant
W. BARTON BOLING
Assistant Attorney General
Chief, Enforcement Division
NANCY M. SIMONSON
Assistant Attorney General
P.O. Box 12548, Capitol Station
Austin, Texas 78711
(512) 475-3281
Attorneys for Petitioners
APPENDIX A
A-1
CIUDADANOS UNIDOS DE SAN JUAN et al.,
Plaintiffs-Appellants,
Vv.
HIDALGO COUNTY GRAND JURY
COMMISSIONERS et al.,
Defendanis-Appellees.
Robert CABALLERO et al.,
Plaintiffs-Appellants,
V.
Dellis PRATER et al.,
Defendants-Appellees.
Nos. 77-3321, 78-11394.
United States Court of Appeals,
Fifth Circuit.
July 31, 1980.
Civil actions were brought seeking to establish that
grand juries convened in two Texas counties were
composed in contravention of Constitution’s
requirements because four identifable groups in the
community—Mexican-Americans, women, young
people and poor people—had been excluded from
consideration for service. The United States District
Court for the Southern District of Texas, Reynaldo G.
Garza, J., dismissed the complaints on the ground that
they presented no justiciable controversy, and appeal
was taken. The Court of Appeals, Goldberg, Circuit
Judge, held that: (1) as members of named groups which
had been excluded from grand jury participation,
plaintiffs were, at preliminary stage of litigation,
proper parties to bring actions; (2) even though selection
of each grand jury list was a distinct act and each grand
jury list was compiled by a separate set of jury
commissioners who had full discretion to go about
A-2
selection process in its cwn way, allegations of past
discrimination were sufficient to create live case or
controversy; (3) controversy existed between plaintiffs
and successors of all original defendants so that
substitution of parties was proper; (4) 1979 amendments
to Texas selection system did not moot the actions; and
(5) district court erred in dismissing complaints because
it thought it could not formulate an effective remedy.
Reversed and remanded.
Appeals from the United States District Court for the
Southern District of Texas.
Before GOLDBERG, FAY and ANDERSON, Circuit
Judges.
GOLDBERG, Circuit Judge:
Almost 800 years ago, the Magna Charta proclaimed,
“No free man shall be... imprisoned... or in any way
destroyed, except by the lawful judgment of his peers or
[and] by the law of the land.”! From this seed planted in
the early spring of English legal culture has grown our
“very idea of a jury . . . a body of men composed of the
peers or equals of the persons whose rights it is selected
or summoned to determine; that is, of his neighbors,
fellows, associates, persons having the same legal status
as that which he holds.” Strauder v. West Virginia, 100
U.S. 303, 25 L.Ed. 664 (1879). And in its transplanted
soil, this growth has flourished; our courts have
recognized its crucial importance to our system of
justice, beyond the rights of any particular criminal
defendant: “For racial discrimination to result in the
IChap. 39, quoted in Labat v. Bennett, 365 F.2d 698, 711 (5th Cir.
1966\en banc), cert. denied, 386 U.S. 991, 87 S.Ct. 1308, 18 L.Ed.2d
334 (1967).
A-3
exclusion from jury service of otherwise qualified
groups not only violates our Constitution and the laws
enacted under it, but is at war with our basic concepts of
a democratic society and a representative government.”
Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 165, 85 L.Ed.
84 (1940). See generally Labat, supra, 365 F.2d at 711.
Almost three years ago, the Supreme Court applied
these principles to reverse the conviction of a criminal
defendant in Hidalgo County, Texas, on the ground that
Mexican-Americans had been unconstitutionally
excluded from the grand jury that indicted him. See
Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51
L.Ed.2d 498 (1977). The cases before us require that we
again trek to Hidalgo County—with a stop, as well, in
neighboring Willacy County—in vindication of our
“very idea of a jury.” Appellants in the cases before us
filed civil actions seeking to establish that the grand
juries convened in those counties were composed in
contravention of the Constitution’s requirements
because four identifiable groups in the community—
Mexican-Americans, women, young people and poor
people—had been excluded from consideration for
service. The district court dismissed their complaints on
the ground that they presented no _ justiciable
controversy. From these dismissals, appellants in both
cases seek our review. Because we find the cases
justiciable, we reverse.
I.
A. The courts have on numerous previous occasions
described and evaluated the operation of the Texas
system of grand juror selection. See, e.g., Castaneda v.
Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498
(1977); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667,
98 L.Ed. 866 (1954); Cassell v. Texas, 339 U.S. 282, 70
S.Ct. 629, 94 L.Ed. 839 (1950); Akins v. Texas, 325 U.S.
398, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945); Hill v. Texas,
316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942); Smith
A-4
v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940);
Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966), cert. denied,
386 U.S. 975, 87 S.Ct. 1169, 18 L.Ed.2d 135 (1967).
Because a major issue in the cases before us is the
amenability of the Texas system to injunctive relief and
because the system was modified in some respects in
1979, we again must look closely at how it functions.?
Prior to September 1, 1979, and at the time this action
was filed, Texas employed exclusively the “key man”
method of grand juror selection, “which relies on jury
commissioners to select prospective grand jurors from
the community at large.” Castaneda, supra, 97 S.Ct. at
1275 (footnote omitted). See Tex.Crim.Proc.Code Ann.
Art. 19 (Vernon 1977). In 1979, however, Texas
amended its selection laws to make the use of this
method optional with the state district judge. See
Tex.Crim.Proc. Code Ann. Art. 19.01(b) (Vernon Supp.
1980). In lieu of use of the key man system, the state
2The facial constitutionality of the Texas statutes has recently
been reaffirmed, see Castaneda, supra, 97 S.Ct. at 1281, although
the Court noted that “the system is susceptible to abuse as applied.”
Id. Both sets of appellants here limit their attacks on the statutes to
the constitutionality of their application.
8This article provides:
In lieu of the selection of prospective jurors by means of
a jury commission, the district judge may direct that 20
to 50 prospective grand jurors be selected and
summoned, with return on summons, in the same
manner as for the selection and summons of panels for
the trial of civil cases in the district courts. The judge
shall try the qualifications for and excuses from service
as agrand juror and impanel the completed grand jury in
the same manner as provided for grand jurors selected
by a jury commission.
The procedure for selection of jurors in civil cases is set out in
Tex.Rev.CivlStat.Ann. Arts. 2094-2116d (Vernon 1964 & Supp.
1980).
The effect on this action of this and other amendments, see note 5
infra, are discussed in Part II(B) infra.
A-5
district judge may use the same random selection
system used for selection of jurors in civil cases in
Texas. See note 3 supra. Since the challenges here are
directed solely to alleged abuses occurring in the use of
the key man system in the Texas counties of Hidalgo and
Willacy, we focus on the manner in which that system
operates.
The state district judge initiates the process by
appointing three to five persons to serve as grand jury
commissioners. See Tex.Crim.Proc.Code Ann. Art.
19.01 (Vernon 1977).4 The commissioners in turn choose
“not less than 15 nor more than 20 persons from the
citizens of different portions of the county to be
‘This article provides
The district judge, at or during any term of court, shall
appoint not less than three, nor more than five persons to
perform the duties of jury commissioners, and shall
cause the sheriff to notify them of their appointment, and
when and where they are to appear. The district judge
shall, in the order appointing such commissioners,
designate whether such commissioners shall serve
during the term at which selected or for the next
succeeding term. Such commissioners shall receive as
compensation for each day or part thereof they may serve
the sum of Ten Dollars, and they shall possess the
following qualifications:
1. Be intelligent citizens of the county and able to
read and write the English language;
2. Be qualified jurors in the county;
3. Have no suit in said court which requires
intervention of a jury;
4. Beresidents of different portions of the county; and
5. Thesame person shall not act as jury commissioner
more than once in the same year.
The 1979 amendments recodified this section as
Article 19.01(a). See Tex.Crim.Proc.Code Ann. Art.
19.01(aX Vernon Supp. 1980).
A-6
summoned as grand jurors.” Tex.Crim.Proc.Code Ann.
Art. 19.06 (Vernon 1977).5 The statutes nowhere specify
the manner in which the jury commissioners are to
select the names of potential grand jurors to be placed on
the grand jury “list,”® nor are the jury commissioners
required to use any particular source for names to be
placed on their list.’ The mode of selection of potential
grand jurors is thus left entirely to the discretion of the
jury commissioners.
5A 1979 amendment to this section added the
requirement that “[t]he commissioners shall, to the
extent possible, select grand jurors who [sic] the
commissioners determine represent a broad cross-
section of the population of the county, considering the
factors of race, sex, and age.”
As amended, the section in its entirety provides:
The jury commissioners shall select not less than 15 nor
more than 20 persons from the citizens of the county to be
summoned as grand jurors for the next term of court, or
the term of court for which said commissioners were
selected to serve, as directed in the order of the court
selecting the commissioners. The commissioners shall, to
the extent possible, select grand jurors who the
commissioners determine represent a broad cross-
section of the population of the county, considering the
factors of race, sex and age.
Tex.Crim.Proc.Code Ann. Art. 19.06 (Vernon Supp. 1980).
6The fifteen to twenty persons chosen by the jury commissioners
as potential grand jurors shall be referred to in this opinion as the
jury “list” to distinguish them from the twelve actually chosen from
their number to serve on the “panel.”
7Tex.Crim.Proc.Code Ann. Art. 19.04 (Vernon 1977) provides
that, upon the jury commissioners, retirement to choose the list of
potential grand jurors, the clerk of the court “shall furnish them...
the last assessment roll of the county.” It does not require, however,
that all persons chosen must be from that list.
A-7
For a description of the remainder of the relevant
selection procedures, we quote from Castaneda, supra,
97 S.Ct. at 1275:
When at least 12 of the persons on the list
appear in court pursuant to summons, the
district judge proceeds to “test their
qualifications.” Art. 19.-21. The qualifications
themselves are set out in Art. 19.08: a grand
juror must be a citizen of Texas and of the
county, be a qualified voter in the county, be “of
sound mind and good moral character,” be
literate, have no prior felony conviction, and be
under no pending indictment “or other legal
accusation for theft or of any felony.”
Interrogation under oath is the method
specified for testing the prospective juror’s
qualifications. Art. 19.22. The precise
questions to be asked are set out in Art. 19.23,
which, for the most part, tracks the language of
Art. 19.08. After the court finds 12 jurors who
meet the statutory qualifications, they are
impaneled as the grand jury. Art. 19.26.8
8It is not clear from the statutes whether the jury commissioners
themselves are required or permitted to pass on the ability of the
persons on the list to meet the statutory qualifications. In
Castaneda, the Court interpreted the statute to permit the testing
of qualifications to be delayed until the persons on the list appeared
in the district court. See 97 S.Ct. at 1276 n.8. Tex.Crim.Proc.Code
Ann. Art. 19.03 (Vernon 1977), however, requires the jury
commissioners to swear to an oath, stating, inter alia, “that you will
not knowingly elect any man as a juryman whom you believe to be
unfit and not qualified.” This court has read this oath to require the
jury commissioners to evaluate an individual’s ability to meet the
statutory qualifications before his name is placed on the grand jury
list. See Brooks v. Beto, supra, 366 F.2d at 4-5. While this matter
may be important to the proof to be presented at trial, see
Castaneda, supra, 97 S.Ct. at 1276 n.8, and should be considered in
the formulation of a remedy should the claims of discrimination be
proven, it is not relevant to the question at hand; 7.e., whether the
complaints state justiciable causes of action.
A-8
B. We next examine the allegations of the
complaints in the two cases. In Ciudadanos de San Juan
v. Hidalgo County Grand Jury Commissioners (the
Hidalgo County case), No. 77-8321, the appellants,
plaintiffs below, brought suit individually and as class
representatives to obtain monetary,!® injunctive and
declaratory relief to redress the systematic exclusion or
underrepresentation of four classes of qualified
individuals from Hidalgo County grand _ juries:
Mexican-Americans (or those bearing Spanish-sur-
names); women; young people (those between the ages of
18 and 28); and poor people (those having incomes below
the government designated poverty level).!! Appellants
9They are described in the complaint as follows:
CIUDADANOS UNIDOS DE SAN JUAN and
CIUDADANOS UNIDOS DE DONNA are community
organizations dedicated to developing the political rights
and responsibilities of San Juan and Donna residents
respectively, including more effective use and assertion
of their members’ voting rights. Members of both
community organizations are almost entirely Mexican-
American, many of whom are poor persons, women, and
young people. ARTURO GUAJARDO, JUAN
MALDONADO, PABLO MARTINEZ, JESUS
RAMIREZ, JESUS JOEL SOLIS, LALO ARCUATE,
ROBERTO F. LOREDO, CONRADA ARCAUTE,
APOLONIA S. MENDOZA, ANTONIO M. GARCIA,
AND JUANA VALDEZ COX are citizens of Hidalgo
County.
They allege that, although all individual appellants were qualified
for grand jury service, only Jesus Ramirez has ever been called.
Appellants have abandoned their request for monetary
damages in this appeal. This claim was premised on 42 U.S.C. §
1985.
‘Jurisdiction in this suit was premised on 28 U.S.C. §§ 1343,
1331, 1332, 2201, and 2202. The claims before us are founded upon
42 U.S.C. §§ 1981 and 1983.
A-9
allege that a pattern and practice of systematic
exclusion or underrepresentation of the four named
groups is established by statistics showing the actual
operation of the grand juror selection process over the
past ten years and that this pattern and practice will
continue. They allege further that this systematic
exclusion or underrepresentation directly harms
appellants and the classes they represent by denying
them equal consideration “for grand jury service solely
because of their sex, age, income, or national origin,”
and conclude that this injury amounts to a denial of due
process and equal protection of the laws under the
fourteenth amendment to the United States
Constitution. Named as parties defendant are the jury
commissioners of Hidalgo County, in their individual
and official capacities, and the judge of the 93rd Judicial
District of Texas in his official capacity.!2 Appellants
also seek relief against the successors in office of all
defendants.
121t is not clear from the complaint in this case whether appellants
intended to challenge the operation of the selection process in
Hidalgo County as a whole or only in the 98rd Judicial District of
Hidalgo County. While the complaint names the Jury
Commissioners of Hidalgo County as defendants, it names the
judge of only the 93rd Judicial District. There is some indication in
the record of this case that appellants considered the judge of the
93rd Judicial District to be the official responsible for the selection
of jury commissioners for the whole county. Appellees indicate in
affidavits submitted to the court below, however, that the judges of
the three other judicial districts in Hidalgo County—the 92nd, the
139th, and the 206th—are responsible for the naming of jury
commissioners to select other groups of potential grand jurors. For
purposes of this appeal, we read the complaint as claiming
discrimination in only the 93rd Judicial District. If appellants
intended to challenge the operation of the system in the other
judicial districts as well, they should be permitted on remand, in
light of the information regarding the selection process submitted
by appellees, to amend their complaint to include the judges of
the other districts. This amendment, if it is made on this basis, will
affect none of the questions decided on this appeal.
A-10
The complaint in Caballero v. Prater (the Willacy
County case), No. 78-1394, differs in only a few
noteworthy respects from that in the Hidalgo County
case. While the named plaintiffs!® and the alleged
statistical disparities are, of course, different, this
complaint alleges asimilar continuing, ten-year pattern
systematic exclusion or underrepresentation of the
same four classes of individuals from consideration for
grand jury service. For present purposes, the most
significant difference between the two complaints is
that, in this case, appellants did not name the state
district judge as a defendant; rather they sued only the
jury commissioners of Willacy County in their
individual and official capacities.'* The relief sought is
essentially similar to that requested in the Hidalgo
County case, although there is here no request for
monetary damages.!> Appellants in this case also sought
relief against appellees’ successors.
Because of the close similarities between the
complaints, they may, for most purposes, be treated
18The plaintiffs were described in the complaint as follows:
Robert Cabellero, Rafael Cantu, Yolanda Castaneda,
Eloy Castaneda, Angelita Reyna, Sylvia Caballero,
Justino Fonseca, Jr., and Abelardo Fonseca are all
citizens and residents of Willacy County. Each Plaintiff,
except Eloy Castaneda and Rafael Cantu, is under the
age of 30. Rafael Cantu is retired and receives Social
Security benefits.
They allege that, although all were qualified for grand jury service,
only Robert Caballero has ever been called.
“The jurisdictional bases for this suit are identical to those
alleged in the Hidalgo County case. See note 11 supra. The claim
here is stated under 42 U.S.C. §1983.
isSThus, in neither of the cases in this appeal do we face the
question whether monetary damages are appropriate. See note 10
supra.
A-11
together in our consideration of these cases. Indeed, the
district court dismissed the Willacy County case sua
sponte on the basis of its opinion in the Hidalgo County
case.
C. The district court did not find that the facts
alleged, if proven, would be inadequate to establish a
prima facie case of discriminatory exclusion
from grand jury service in Hidalgo and Willacy
Counties; rather, it held that for a number of reasons the
cases were not appropriate for resolution in the federal
courts. The district court indicated that, in its opinion,
“the most important aspect” of these cases was that, in
order for a case to be justiciable, it “must present a set of
circumstances which will allow the Court to fashion a
remedy, and it is this Court’s opinion that this case does
not present a controversy which lends itself to ‘specific
relief through a decree of a conclusive character,’ ”
quoting Aetna Life Insurance Co. v. Haworth, 300 U.S.
227, 57 S.Ct. 461, 81 L.Ed. 617 (1937). The district court
suggested that plaintiffs faced an initial obstacle by
virtue of their lack of standing, because they actually
sought relief for present and prospective criminal
defendants, not for themselves. More fundamentally,
however, the district court declared that it was “unable
to formulate and supervise an injunction which would
be an effective response to Plaintiff's request that this
Court enjoin the Defendant Jury Commissioners and
their successors from excluding any cognizable class or
group from grand jury service.” This holding rested
upon the court’s belief that the discretion inherent in
the Texas grand juror selection process rendered it
unamenable to injunctive relief, especially since the
statutory scheme had been held facially constitutional.
See note 2 supra. Because it thought any relief it might
attempt to institute would too greatly intrude upon the
state’s management of its affairs, the court also
suggested that some form of abstention might be
appropriate.®
16The district court also held that the state judge in the Hidalgo
County case and the jury commissioners in both cases were immune
A-12
Appellees have attempted in this court to buttress the
district court’s conclusions, and they suggest, in addi-
tion, that no case or controversy presently exists be-
cause for various reasons, the appellants’ claim are
either moot or not ripe. After carefully considering all
these contentions, we must disagree with the holdings of
the district court and the arguments of appellees. We
think appellants in both cases have presented a justi-
ciable controversy appropriate for resolution in the
federal courts.
IT.
A. Appellees’ first argument that no justiciable
claims are presented derives primarily from their
contention that the complaints on their face fail to show
a live controversy between the appellants and appellees.
First, appellees suggest appellants are not the proper
parties to maintain these suits. Then, relying primarily
on the Supreme Court’s decisions in O’Shea v. Littleton,
414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), and
Spomer v. Littleton, 414 U.S. 514, 94 S.Ct. 685, 38
L.Ed.2d 694 (1974), appellees argue that appellants’
only allegations are of past exposure to illegal conduct in
from a suit for damages. Appellants do not now press any claims for
damages, and appellees have no immunity from equitable or
declaratory relief. See e.g., Slavin v. Curry, 574 F.2d 1256, 1264,
vacated as moot, 583 F.2d 779 (5th Cir. 1978); Person v. Association
of Bar, 554 F.2d 534, 537 (2d Cir. 1977), cert. denied, 434 U.S. 924, 98
S.Ct. 408, 54 L.Ed.2d 282 (1977). Therefore, no question of official
immunity remains in these cases.
In addition, we note that, while both the district court and the
parties have treated the dismissals as falling under Fed.R.Civ.P.
12(bX6) for failure to state a claim, they actually fall under
Fed.R.Civ.P. 12(b)1) since the court found that it lacked
jurisdiction to hear the cases. For purposes of this motion to
dismiss, we take the allegations of the complaints as true and
construe them favorably to appellants. See Warth v. Seldin, 422
U.S. 490, 95 S.Ct. 2197, 2206-2207, 45 L.Ed.2d 343 (1975).
A-13
the administration of the grand juror selection scheme
and that the complaints provide no basis for inferring
that this illegal conduct does now or will hereafter
persist. Appellants’ subjective fears of continued
discrimination, appellees assert, cannot create a live
case or controversy. Correlatively, appellees contend
that any discrimination practiced in the past was
personal to the previous jury commissioners and thus
gives rise to no inference that the present commissioners
or their successors will continue these practices. We find
that these contentions misrepresent the allegations of
the complaints, particularly when these allegations are
read in light of the Texas statutory scheme. Properly
construed, the complaints present a live case or
controversy between appellants and appellees within
the meaning of Article III of the Constitution.
We turn first to O’Shea, supra, the case relied upon by
appellees, for a digest of the relevant constitutional
requisites for a viable case or controversy. There the
Court stated:
Plaintiffs in the federal courts “must allege
some threatened or actual injury resulting
from the putatively illegal action before a
federal court may assume jurisdiction.” Linda
R. S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct.
1146, 1148, 35 L.Ed.2d 536 (1973). There must
be a “personal stake in the outcome” such as to
“assure that concrete adverseness which
sharpens the presentation of issues upon which
the court so largely depends for illumination of
difficult constitutional questions.” Baker v.
Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7
L.Ed.2d 663 (1962). Nor is the principle
different where statutory issues are raised. Cf.
United States v. SCRAP, 412 U.S. 669, 687, 92
S.Ct. 2405, 2415, 37 L.Ed.2d 254 (1973).
Abstract injury is not enough. It must be
alleged that the plaintiff “has sustained or is
A-14
immediately in danger of sustaining some
direct injury” as the result of the challenged
statute or official conduct. Massachusetts v.
Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67
L.Ed. 1078 (1923). The injury or threat of injury
must be both “real and immediate,” not
“conjectural” or “hypothetical.” Golden v.
Zwickler, 394 U.S. 108, 109-110, 89 S.Ct. 956,
960, 22 L.Ed.2d 113(1969); Maryland Casualty
Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 278,
61 S.Ct. 510, 512, 85 L.Ed. 826 (1941); United
Public Workers v. Mitchell, 330 U.S. 75, 89-91,
67 S.Ct. 556, 564-565, 91 L.Ed. 754 (1947).
Moreover, if none of the named plaintiffs pur-
porting to represent a class establishes the
requisite of a case or controversy with the
defendants, none may seek relief on behalf of
himself or any other member of the class.
Bailey v. Patterson, 369 U.S. 31, 32-33, 82 S.Ct.
549, 550-551, 7 L.Ed.2d 512 (1962); Indiana
Employment Division v. Burney, 409 U.S. 540,
93 S.Ct. 888, 35 L.Ed.2d 62 (1973). See 3B J.
Moore, Federal Practice, Para. 23.10-1, n.8 (2d
ed. 1971).
Id. at 675 (footnotes omitted). From this concatenation
of principles, we derive the two basic constitutional
requisites that a plaintiff must meet before invoking the
jurisdiction of the federal courts: the plaintiff must
show that the controversy is a “live” one and that he
possesses a legally cognizable interest which gives hima
“personal stake” in the outcome.!”
17These basic constitutional principles cut across the boundaries
of many of the subcategories of justiciability doctrine. For example,
the Supreme Court has recently written that “mootness has two
aspects: ‘when the issues presented are no longer “live” or the
parties lack a legally cognizable interest in the outcome.’ ” U.S.
Parole Commission v. Geraghty, __. U.S. ___, ___., 100 S.Ct. 1202,
63 L.Ed.2d 479 (1980). O'Shea itself has been characterized as
A-15
1. Assuming arguendo for the moment that
appellants’ claims were presented in the context of a live
case or controversy, we think it clear that the named
appellants, and therefore the classes they claim to
represent, see O’Shea, supra, 94 S.Ct. at 675, have the
kind of legally cognizable interest that gives them a
personal stake in the outcome.!§ Our inquiry here is, in
essence, whether appellants are proper parties to bring
these suits.
involving a blend of standing, ripeness and mootness
considerations. See Lyons v. City of Los Angeles, 615 F.2d 1248, 1246
n.5 (9th cir. 1980); 18 Wright, Miller & Cooper, Federal Practice
and Procedure: Jurisdiction § 3529 n.21. (1975). In O'Shea,
however, the Court did not label the complex questions it faced in
terms of these subcategories; instead, it straight forwardly applied
the constitutional principles it enunciated. In these cases, we follow
the same approach. As one commentator has observed, “There is no
reason to demand a final expression in terms of standing, ripeness,
mootness, or political question doctrine, if the court is able to
conclude that there is no sufficient need for deciding the issues
tendered without relying on the frequent question begging
terminology of any single concept.” Jd. at 147.
Of course, justiciability doctrine encompasses more than the
question whether the court has power under Article III to decide
the case. Often, prudential considerations militate against the use
of judicial power even when its constitutionality is established. See,
e.g., Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 2205, 45 L.Ed.2d
343 (1975). See generally Wright, Miller & Cooper, supra, at § 3529.
We consider the “prudential” considerations raised in these cases as
notes 23 & 49 infra.
\8]t is true, of course, that this “personal stake,” which is the heart
of the standing doctrine, see Warth, supra, 95 S.Ct. at 2205, cannot
exist where the controversy between plaintiffs and defendants has
expired, see Juidice v. Vail, 480 U.S. 327, 97 s.Ct. 1211, 1215-16, 51
L.Ed.2d 376 (1977), or where the existence of the controversy is
purely a matter of speculation and conjecture; ie., where the
controversy is not “ripe.” See, O'Shea, supra, 94 S.Ct. at 676-77. Our
inquiry here is simply whether appellants have a legal right to
complain of their exclusion from grand jury service. The existence
of a live controversy which allows them to litigate their exclusion is
considered below.
A-16
The district court concluded that the proper parties to
bring t. 2se suits were not those who had been
discriminatorily excluded from consideration for grand
jury service, but were those who had been indicted by
unconstitutionally composed grand juries. As a
proposition of law, this is simply incorrect. In Carter v.
Jury Commission, 396 U.S. 320, 90S.Ct. 518, 24 L.Ed.2d
549 (1970), and Turner v. Fouche, 396 U.S. 346, 90 S.Ct.
532, 24 L.Ed.2d 567 (1970), the Supreme Court
expressly held that civil suits like those before us could
be maintained by the victims of the state’s exclusionary
practices. In Carter, the Court stated:
Defendants in criminal proceedings do not
have the only cognizable legal interest in
nondiscriminatory jury selection. People
excluded from juries because of their race are
as much aggrieved as those indicted and tried
by juries chosen under a system of racial
exclusion. Surely there is no jurisdictional or
procedural bar to an attack upon systematic
jury discrimination by way of a civil suit such
as the one brought here. The federal claim is
bottomed on the simple proposition that the
State, acting through its agents, has refused to
consider the appellants for jury service solely
because of their race. Whether jury service be
deemed a right, a privilege, or a duty, the State
may no more extend it tosome of its citizens and
deny it to others on racial ground than it may
invidiously discriminate in the offering and
withholding of the elective franchise. 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
Id, 90 S.Ct. at 523 (footnotes omitted). Further, the
Court recently emphasized in a habeas corpus action
that suits by the classes discriminatorily excluded were
A-17
the preferred mode of attacking grand jury
discrimination. See Rose v. Mitchell, 443 U.S. 545, 99
S.Ct. 2993, 3001, 61 L.Ed.2d 739 (1979); id. at 3009
(Stewart, J., concurring in the judgment). Finally, this
court has on numerous occasions allowed suits of this
nature with classes founded on both race and sex to
proceed without objection to nature of the action. See,
e.g., Porter v. Freeman, 577 F.2d 329 (5th Cir. 1978);
Berry v. Cooper, 577 F.2d 322 (5th Cir. 1978); McGhee v.
King, 518 F.2d 791 (5th Cir. 1975); Foster v. Sparks, 506
F.2d 805 (5th Cir. 1975); Thompson v. Sheppard, 490
F.2d 830 (5th Cir. 1974), cert. denied, 420 U.S. 984, 95
S.Ct. 1415, 42 L.Ed.2d 666 (1975); Broadway v.
Culpepper, 439 F.2d 1253 (5th Cir. 1971); Ford v. White,
430 F.2d 951 (5th Cir. 1970); Ravford v. Dillon, 430 F.2d
949 (5th Cir. 1970); Preston v. Mandeville, 428 F.2d 1392
(5th Cir. 1970); Black v. Curb, 422 F.2d 656 (5th Cir.
1970); Salary v. Wilson, 415 F.2d 467 (5th Cir. 1969);
Pullum v. Greene, 396 F.2d 251 (5th Cir. 1968);
Billingsley v. Clayton, 359 F.2d 13 (5th Cir. 1966\en
banc), cert. denied, 385 U.S. 841, 87 S.Ct. 92, 17 L.Ed.2d
74 (1967).
Faced with this jurisprudence, appellees now argue
in addition that even if the action can be maintained for
discrimination on the basis of sex and national origin,
the classes of young people, defined in the complaints as
including individuals between the ages of 18 and 28, and
of poor people, defined as including individuals with
below poverty-level incomes, are not legally cognizable.
At the pleading stage of this litigation, we must reject
this contention.
In Hernandez v. Texas, 347 U.S. 475, 74 S.Cg. 667, 98
L.Ed. 866 (1954), the Court recognized that systematic
exclusion of Mexican-Americans from grand jury
service violated the Constitution. In so holding, it wrote:
Throughout our history differences in race
and color have defined easily identifiable
A-18
groups which have at times required the aid of
the courts in securing equal treatment under
the laws. But community prejudices are not
static, and from time to time other differences
from the community norm may define other
groups which need the same protection. Wheth-
er such a group exists within a community isa
question of fact. When the existence of a dis-
tinct class is demonstrated, and it is further
shown that the laws, as written or as applied,
single out that class for different treatment not
based on some reasonable classification, the
guarantees of the Constitution have been vio-
lated. The Fourteenth Amendment is not di-
rected solely against discrimination due to a
“two-class theory”—that is, based upon differ-
ences between “white” and Negro.
Id. at 670. See Castaneda, supra, 97 S.Ct. at 1280; White
v. Regester, 412 U.S. 755, 767, 93 S.Ct. 2332, 2340, 37
L.Ed.2d 314 (1973). From Hernandez, we conclude that,
when a plaintiff alleges that he is a member of a group
founded upon an identifiable and distinct characteristic
and that members of that group are treated differently
solely because they bear that characteristic, and not
because the difference in treatment is reasonably
related to a legitimate state objective, then the plaintiff
is entitled to attempt to prove that there exists such an
identifiable and distinct class in the comunity and that it
is subject to the discrimination alleged. As this court has
written in a similar context, “[t]he equal protection
clause prohibits a state from making arbitrary and
unreasonable classifications,” and an exclusionary
classification of potential jurors based on factors which
have “no relationship to their competency as jurors” or
other legitimate state objectives is unreasonable. Labat
v. Bennett, 365 F.2d 698, 723 (5th Cir. 1966)(en banc),
cert. denied, 386 U.S. 991, 87 S.Ct. 1803, 18 L.Ed.2d 334
(1967).
A-19
Our formulation of these principles derives support
from the decisions in Thiel v. Southern Pacific Co., 328
U.S. 217, 66S.Ct. 984, 90 L.Ed. 1181 (1946) and in Labat,
supra, which held that the exclusion of daily wage
earners from consideration for jury service was
impermissible. In Thiel, supra, which was based
primarily on the Court’s supervisory power over the
federal courts, the Court stated:
The American tradition of trial by jury,
considered in connection with either criminal
or civil proceedings, necessarily contemplates
an impartial jury drawn from across-section of
the community. Smith v. Texas, 311 U.S. 128,
130, 61 S.Ct. 164, 165, 85 L.Ed. 84; Glasser v.
United States, 315 U.S. 60, 85, 62 S.Ct. 457, 86
L.Ed. 680. This does not mean, of course, that
every jury must contain representatives of all
the economic, social, religious, racial, political
and geographical groups of the community;
frequently such complete representation would
be impossible. But it does mean that prospec-
tive jurors shall be selected by court officials
without systematic and intentional exclusion of
any of these groups. Recognition must be given
to the fact that those eligible for jury service are
to be found in every stratum of society. Jury
competence is an individual rather than a
group of class matter. That fact lies at the very
heart of the jury system. To disregard it is to
open the door to class distinctions and
discriminations which are abhorrent to the
democratic ideals of trial by jury. * * * This
exclusion of all those who earn a daily wage
cannot be justified by federal or state law.
Certainly nothing in the federal statutes
warrants such an exclusion. And the California
statutes are equally devoid of justification for
the practice. * * * Wage earners, including
those who are paid by the day, constitute a very
A-20
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. Were we tosanction an exclusion of this
nature we would encourage whatever desires
those responsible for the selection of jury panels
may have to discriminate against persons of
low economic and social status. We would
breathe life into any latent tendencies to
establish the jury as the instrument of the
economically, and socially privileged. That we
refuse to do.
Id at 985-987. Labat established that the
principle of Thiel has constitutional
foundations in the due process and equal
protection clauses of the fourteenth
amendment. Labat, supra, 365 F.2d at 722-
723.19
In the cases before us, certain of the appellants
contend that they have been discriminated against
because of either their age or their economic status.
They have alleged that the population between the ages
of 182° and 28 in both Hidalgo and Willacy Counties is 16
percent of the total population and that 50 percent and
57 percent of the population of Hidalgo and Willacy
\'8_abat suggested that perhaps only total exclusion of daily wage
earners would offend the Constitution. Jd. at 721. It is now well-
established, however, that “substantial underrepresentation of the
[identifiable] group constitutes a constitutional violation as well if it
results from [intentional] discrimination.” Castaneda, supra, 97
S.Ct. at 1279. This conclusion is only logical. Purposeful
underrepresentation is merely exclusion in another form. The
victims of the discriminatory practices are excluded from those
positions to which fair representation would entitle them.
20One must be 18 to qualify for grand jury service in Texas. See
Tex.Crim.Proc.Code Ann. Art. 19.08 (Vernon 1977).
A-21
Counties, respectively, have incomes below the
government-designated poverty levels. They have
alleged further that virtually no members of these
groups have been called for grand jury service over the
past ten years. Under these allegations, we refuse to
hold as a matter of law that these groups are not legally
cognizable. Both groups are clearly defined in the
complaint and comprise significant proportions of their
counties, and the degree of exclusion alleged certainly
lends credence to their claim that they have been
“identified” in their communities. Under Hernandez,
supra, the representatives of these groups are entitled to
present evidence to the district court to show that the
groups, as defined in the complaint, are sufficiently
“identifiable.”2! See id., 74 S.Ct. at 670. The burden is
21F or fourteenth amendment purposes, the inquiry into whether a
group is “identifiable” is directed toward determining whether the
group is viewed by the community as a whole, or at least by the
relevant state officials, as a group sufficiently distinct from the
remainder of the community to be a credible target for the exercise
of community prejudices. Evidence that the community recognizes
the distinctness of the group, see Hernandez, supra, 74 S.Ct. at 671,
or that the group has been subjected to special disadvantages in the
community, see Castaneda, supra, 97 S.Ct. at 1280, may be used to
establish its distinctness.
Further, it is significant that, in both Thiel and Labat, the
defendants admitted that they had singled out daily wage earners
for disparate treatment. See Thiel, supra, 66 S.Ct. at 986; Labat,
supra, 365 F.2d at 713-716. This admission of discrimination was
apparently enought alone to establish that daily wage earners were
a cognizable group since the court inquired into no other indicia of
group identification. Similarly, in these cases, appellants have
claimed a virtually total exclusion of the young and the poor, as de-
fined in the complaint. Proof of such extensive exclusion of these
groups when other economic or age groups are not subjected to the
same treatment would certainly be strong evidence that these
groups have been “identified” by the relevant state officials. Fur-
ther, evidence of exclusion of this magnitude may be particularly
relevant where the selection procedures are non-neutral with re-
gard to the allegedly excluded group. Because, under the Texas
selection system, the jury commissioners may know both the age
and economic status of the persons they select since these individu-
A-22
theirs. /d.22
This result is no less than commonsensical. Our
constitutional rights are personal. An individual citizen
als are “handpicked,” see Brooks, supra, 366 F.2d at 29(Wisdom, J.,
concurring), the selection system must be regarded as non-neutral
with regard to the groups of the young and the poor. Cf,
Castaneda, supra, 91 §.Ct. at 1280 (Texas selection system is non-
neutral with regard to Mexican-Americans).
Finally, it has been settled in other areas of equal protection
analysis that an individual discriminated against because of his age
or economic status suffers a legal injury. See generally L. Tribe,
American Constitutional Law §§ 16-29, 16-33 to 16-35 (1930). The
question we face is whether appellants have stablished, under the
rule laid down by Hernandez, an adequate predicate for the
litigation of their age- and economic status-based claims. For the
reasons set forth, we think they have. Appellants do, however, bear
the burden of proving that the definitional bases for the groups
alleged in the complaint are sufficient to give content to the
otherwise amophous groups of the young and the poor. That is,
appellants must prove that the criteria for group membership that
they have alleged adequately define the groups against which the
alleged discrimination has been levelled. See generally Gewin, An
Analysis of Jury Selection Designs, reprinted as appendiz to Foster
v. Sparks, 506 F.2d 805, 823-25 (5th Cir. 1975).
22 ppellees rely on United States v. Kleifgen, 557 F.2d 1293 (9th
Cir. 1977), for the proposition that the young and the poor are not
cognizable groups. Kleifgen, however, lends them little aid. First of
all, Kleifgen did not actually involve a claim of exclusion of the poor.
That case involved claims of exclusion of inter alia, non-high school
graduates and non-working people; the court held that these groups
were “by no means synonymous” with the poort. Jd. at 1296 n.6.
While Kleifgen did hold that “the young” was not a cognizable
group, that holding is of little persuasive value here. Hernandez v.
Texas, supra, held that it was a question of fact whether a group
allegedly unlawfully excluded constituted a cognizable group
within the relevant community. See id., 74 S.Ct. at 670. The fact
that the record in one case failed to establish that the young
constitute a cognizable group within the community does not mean
that, in this case, appellants will also fail to meet their burden.
A-23
should not be, and under the Constitution cannot be, de-
prived of individual equality under the law solely be-
cause he belongs to an identifiable segment of society
against which official discrimination has been leveled.
An individual’s youth or poverty bears no relation to his
competency for grand jury service, and an exclusionary
classification based on those criteria is unreasonable. If
identifiable groups based on these criteria are proven,
both common sense and the Constitution indicate that, if
they prove they have suffered discrimination, they are
entitled to aremedy. We thus conclude that, as members
More fundamentally, Klefgen was a challenge based on the
federal jury selection statutes, 28 U.S.C.A. § 1861 et seg. (West
Supp. 1979). As such, it was one of a series of cases holding that
various groupings of young people did not comprise cognizable
groups for purposes of claims by litigants that the juries involved
were illegally composed under those statutes. See, e.g., United
States v. Potter, 552 F.2d 901 (9th Cir. 1977); United States v. Test,
550 F.2d 577 (10th Cir. 1976\en banc); United States v. Ross, 468
F.2d 1213 (9th Cir. 1972), cert. denied, 410 U.S. 989, 93 S.Ct. 1500,
36 L.Ed.2d 188 (1973). But see United States v. Butera, 420 F.2d 564
(1st Cir. 1970)(Coffin, J.{age group, 21-34, is cognizable). In the
cases rejecting the claims of exclusion of the young, the courts
attempted to protect the federal statutory “right of all litigants to
have grand (and, or course, trial) juries selected from a fair cross
section of the local community.” Potter, supra, 552 F.2d at 901. See
28 U.S.C.A. § 1861 (West Supp. 1979). The courts have relied
heavily on a supposed lack of internal cohesion in the groups of the
young, and a corresponding lack of a distinctive viewpoint, to
support their holding that these groups were not cognizable; these
factors, they hold, establish that these groups add nothing to the
“fair cross section” guaranteed the litigant. See, e.g., Potter, supra,
442 F.2d at 904-905. But while these factors may be relevant to
group identification for purposes of protecting the parties’ rights
under the federal selection statutes, a point upon which we express
no opinion, they are not necessary to group identification for
purposes of protecting an individual’s right to equal consideration
for jury service under the fourteenth amendment, the right which
forms the foundation for this lawsuit. If an individual is denied
equal consideration because of his group membership and if the
group meets the cogniability requirements of Hernandez, supra,
then the fourteenth amendment has been violated.
A-24
of groups of Mexican-Americans, women, the young
between the ages of 18 and 28, and the poor with incomes
below the “poverty level,” appellants are, at this stage of
the litigation proper parties to bring these actions.”
23Assuming that a case or controversy exists, the appellant
organizations in the Hidalgo County case, see note 9 supra, are
entitled to bring this action as representatives of their members
who, it is alleged, belong to the four named classes. See, e.g., Warth
v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 1211,12, 45 L.Ed.2d 343
(1975). Because the claims stated and the relief sought are class-
wide, the individual participation of each injured party is not
indispensable to the proper resolution of the cases. See id. at 2212.
lu is appropriate here to respond to two other arguments raised
by appellees as they seek to establish that appellants are not
entitled to bring these actions. First, because the Constitution
guarantees a right to equal consideration for grand jury service, see
Carter, supra 90 S.Ct. at 523, and because appellants have alleged a
denial of their right to equal consideration, appellants’ cases
neither fall, nor bleed, upon the thorns of a “but for” argument
raised by appellees. Appellees argue that no one individual has a
right actually to serve on a particular grand jury, and thus that
appellants cannot claim that “but for” appellees’ actions they would
actually have served. From this premise, appellees argue, relying
on Warth v. Seldin, supra, 95 S.Ct. at 2208-2209, that appellants are
unable to maintain their actions since no relief granted could ever
force the appellees to select for jury service any particular one of
their number.
Appellees have chosen the wrong “but for.” Appellants claim that
“but for” appellees’ actions they would have received equal
consideration for grand jury service. To this consideration they
have a right and any relief granted will be directed to its
achievement.
Second, relying on Finch v. Mississippi State Medical Ass'n, 585
F.2d 765 (5th Cir. 1978), appellees argue that appellant lack any
particularized injury that entitled them to maintain their actions.
In Finch, the court held that a female plaintiff lacked
particularized inquiry where she claimed that she as
representative of classes of poor citizens and of women, had been
denied equal consideration for appointment to the Mississippi
Medical Board. Jd. at 771. Without questioning the correctness of
this holding, we conclude that Finch is distinguishable. Whatever
A-25
2. Appellees’ claims that the complaints fail to allege
a live case or controversy are founded upon two unique
aspects of the Texas grand juror selection scheme. First,
appellees argue that each compilation of the fifteen to
twenty member grand juror list is a discrete event. The
acts taken by the jury commissioners in choosing any
particular grand jury list have no impact on the choice
of grand jurors for the next list, for the next set of jury
commissioners has full discretion to go about the
selection process in its own way.™ Each set of grand
jurors in Texas is thus, as Judge Wisdom has observed,
“hand-picked.” See Brooks, supra, 366 F.2d at 29
(concurring opinion). Relying on O’Shea v. Littleton, 414
U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1979), appellees
contend that allegations of past discrimination are
insufficient to create a live case or controversy and that,
since the selection of each list is a distinct act, the
complaint affords no basis, other than appellants’
subjects, for concluding that the discrimination will
continue.
In O’Shea, the complainants charged a county judge
and magistrate in Cairo, Illinois, with discrimination in
bondsetting, sentencing, and other official activities,
and sought injunctive relief. While some of the
complainants claimed to have been injured by these
practices in the past, none claimed that, at the time of
rights there may be to be considered for a state medical board,
Carter and Turner establish that one who is denied equal
consideration for service on grand juries—and, indeed, on school
boards, see Turner, supra, 90 S.Ct. at 541—on the basis of his
membership in an identifiable group has suffered a legally
cognizable injury.
*The Texas selection system thus differs from the Alabama
system considered in Carter, supra. In Alabama, the jury
commissioners compiled a “master list” of potential jurors that was
used for years afterward. Jd. 90 S.Ct. at 520-22. The past acts of
discrimination there thus had effects which continued to the time of
the litigation of the case.
A-26
filing the complaint, he was serving an illegal sentence,
on trial or awaiting trial before the defendants. Even
though complainants contended that the practices
continued, the Court found that, under all the
circumstances, the complaint did not present a viable
case or controversy under Article III. It held that “[p]ast
exposure to illegal conduct does not in itself show a
present case or controversy regarding injunctive relief, .
..if unaccompanied by any continuing, present adverse
effects.” 94 S.Ct. at 676. And while it did recognize that,
“olf course, past wrongs are evidence bearing on
whether there is a real and immediate threat of
repeated injury,” id., it held that the facts alleged did
not support the existence of such a threat with respect to
these complainants. Complainants did not allege that
any state law was unconstitutional on its face or as
applied or that any of the complainants had been or
would be improperly charged. As the Court
summarized the situation,
Apparently the proposition is that if
respondents proceed to violate an unchallenged
law, and 7 they are charged, held to answer and
tried in any proceedings before petitioners,
they will be subjected to the discriminatory
practices that petitioners are alleged to have
followed.
Id. Thus, the holding in O’Shea was not premised on the
fact that the allegations were insufficient to establish
that the defendants would continue their allegedly
unlawful conduct if the opportunity arose, as appellees
have argued; rather, it was premised on the fact that, as
to the named plaintiffs, the opportunity was not
sufficiently likely to arise. For this reason, the threat of
injury to the complainants was “simply too remote” to
establish a viable case or controversy. Jd. at 677.
O’Shea does not control the disposition of these cases.
Appellees correctly assert that the allegations of past
——
A-27
illegal conduct, which is concededly without continuing
impact, do not in themselves establish a _ live
controversy. These allegations, are however, evidence
sufficient to give rise to a strong inference that the
injury will be repeated in the future. Each compilation
of a grand juror list is concededly a discrete act.
Nevertheless, the complaints alleged that over ten years
these discrete acts have consistently produced grand
juror lists upon which the classes to which appellants
belong have been substantially underrepresented. With
this pattern as their factual predicate, the complaints
allege that the selection statutes have been and will
continue to be discriminatorily and unconstitutionally
applied by the incumbent jury commissioners and their
successors.
Under these allegations, the threat of future injury is
palpable. Unlike the contingency-riddled complaint in
O’Shea, the complaints here claim an injury that turns
on a single contingency: that the jury commissioners
will act exactly as they have for the past ten years.
Unlike O’Shea, where the prospect of future injury
turned on the plaintiffs’ violation of valid laws and their
being properly charged under those laws, appellants’
injury here depends solely upon the actions of the
appellees. Again unlike O’Shea, appellants here contend
that appellees have applied and will continue to apply
the relevant laws in an unconstitutional manner.
Further, the very nature of the Texas selection scheme
gives substance to appellants’ allegations that the injury
to them established in the past will continue. By placing
an essentially ungoverned discretion in the hands of the
jury commissioners when they compile the lists, the
scheme creates ample opportunity for discrim ‘nation;
as the Supreme Court has recently iterated, this scheme
is “highly subjective” and “susceptible to abuse as
applied.” Castaneda, supra 97 S.Ct. at 1281. For all
these reasons, appellants’ allegations of a continuing
controversy meet the concerns of O’Shea.
A-28
The second aspect of the Texas selection scheme upon
which appellees rely to argue that there is no live case or
controversy with regard to the jury commissioners is the
fact that each grand juror list is compiled by a separate
set of jury commissioners. See Tex.Crim.Proc.Code
Ann. Art. 19.01 (Vernon 1977). Basing their arguments
on Spomer v. Littleton, 414 U.S. 514, 94 S.Ct. 685, 38
L.Ed.2d 694 (1974), appellees contend that any past
discrimination was personal to the former
commissioners and that, even though appellees were
sued in their official capacities, the complaints afford no
basis for concluding that the appellee commissioners or
their successors will continue these practices. For
reasons quite similar to those set out above, this
argument, too, must fail.
In Spomer, a companion case to O’Shea, the
complainants sought injunctive relief against the state’s
attorney in Cairo, one Berbling, for “an alleged practice
of willful and malicious racial discrimination.” Spomer,
supra, 948.Ct. at 689. After the court of appeals decided
the case adversely to Berbling, he was succeeded in
office by W. C. Spomer, and Spomer filed a petition for
review of the decision in the Supreme Court.” In
remanding the case to the court of appeals for a
determination whether the dispute alleged had expired
by virtue of the change of defendants, the Court
observed:
The wrongful conduct charged in the
complaint is personal to Berbling, despite the
fact that he was also sued in his then capacity as
State’s Attorney. No charge is made in the
complaint that the policy of the office of State’s
Attorney is to follow the intentional practices
25Spomer was substituted for Berbling in the case pursuant to
Supreme Court Rule 48(3), an analog to Fed.R.Civ.P. 25(d). See
Spomer, supra, 94 S.Ct. at 689 n.9. Rule 25(d) is reprinted in note 26
infra. I
A-29
alleged, apart from the allegation that
Berbling incumbent at the time, was then
continuing the practices he had previously
followed. . . . Nor have respondents ever
attempted to substitute Spomer for Berbling
after the Court of Appeals decision, so far as the
record shows, or made any record allegations
that Spomer intends to continue the asserted
practices of Berbling of which they complain.
The plain fact is that, on the record before us,
respondents have never charged Spomer with
anything and do not presently seek to enjoin
him from doing anything.
id. at 389 (citation and footnotes omitted). In later cases,
the solute concerns of Spomer were crystallized into a
simple principle: where the plaintiff claims prior
patterns of discrimination by a government official, but
there has been a change in the occupant of that office,
the plaintiff must establish some basis to believe that the
successor will continue the practices of his predecessor
before the issuance of prospective coercive relief against
the successor is warranted. See Mayor of Philadelphia v.
Educational Equality League, 415 U.S. 605, 94 S.Ct.
1328, 1834, 39 L.Ed.2d 630 (1974); Network Project v.
Corporation for Public Broadcasting, 561 F.2d 963, 966-
68 (D.C. Cir. 1977), cert. denied, 434 U.S. 1068, 98 S.Ct.
1247, 55 L.Ed.2d 770 (1978); Sarteschi v. Burlein, 508
F.2d 110, 114 (3d Cir. 1975). In the context of a motion to
dismiss, therefore, the burden is on the plaintiff “to
allege misconduct was the policy of the office or that
the successor intended to continue the unlawful
practices.” 3B Moore’s Federal Practice Para. 25.09[3],
at 25-109, 25-110 (2d ed. 1980). Appellants in these cases
have satisfied this burden.
Appellants have alleged a pattern of discrimination
by the predecessors of the appellee jury commissioners,
spanning a ten-year period. During this period, the
occupants of the office of jury commissioner in both
A-30
Hidalgo and Willacy Counties have, of necessity,
changed several times, since Texas law specifies that
jury commissioners shall serve for one term of court and
that no person shall act as jury commissioner more than
one time in any year. See Tex.Crim.Proc.Code Ann. Art.
19.01 (Vernon 1977). Appellants have alleged further
that the incumbent jury commissioners will follow the
practice of their predecessors, have sought relief
against the successors of the incumbents and have
moved this court for an order substituting the
successors of the jury commissioners named in the
complaints. They have thus met their burden of
establishing a controversy with the jury commissioners
named in the complaint and, indeed, with their
successors. They have not only alleged that the dispute
will continue with appellees, but also supplied factual
allegations from which the continuation of the dispute is
a reasonabie inference. Appellants must therefore be
permitted to attempt to prove their allegations.”
As noted above, appellants have submitted to this court in each
case a motion to substitute the successors in office of the appellee
jury commissioners, pursuant to Fed.R.Civ.P. 25(d), and a motion
for judicial notice of the identity of those successors. Rule 25(d)
provides:
(1) When a public officer is a party to an action in his
official capacity and during its pendency dies, resigns, or
otherwise ceases to hold office, the action does not abate
and his successor is automatically substituted as a party.
Proceedings foilowing the substitution shall be in the
name of the substituted party, but any misnomer not
affecting the substantial rights of the parties shall be
disregarded. An order of substitution may be entered at
any time, but the omission to enter such an order shall not
affect the substitution.
(2) When a public officer sues or is sued in his official
capacity, he may be described as a party by his official
title rather than by name; but the court may require his
name to be added.
A-31
A closer and slightly different question arises with
regard to the judge of the 93rd Judicial District, a
defendant in the Hidalgo County case.”’ At the time the
complaint in that case was filed, Judge Magus Smith
held that office and was sued only in his official capacity.
Shortly thereafter, he resigned and was replaced by
Judge Joe A. Cisneros. We note that appellants have
alleged a continuing pattern of discrimination, sought
relief against the successors of all defendants, and
argued in the lower court that substitution is proper for
all defendants. Further, Judge Cisneros has made no
record allegation that he will not continue Judge
Smith’s practices. Thus, we conclude that, under the
principles of Spomer, the controversy between
appellants and the judge of the 93rd Judicial Disrict also
remains a live one. It will be open to Judge Cisneros, as it
will be to all appellees, to refute these allegations at
trial.28
Because we have determined that the complaints allege a dispute
which will continue with appellees’ successors, substitution is
appropriate. See Spomer, supra, 94 S.Ct. at 689 n.9. These cases fall
well within the principle stated in the Advisory Committee Notes to
Rule 25(d): “In general, it will apply whenever effective relief
would call for corrective behavior by the one then having official
status and power, rather than one who has lost that status and
power through ceasing to hold office. See 3B Moore’s Federal
Practice, Para. 25.09[3], at 25-403, 25-404 (2d ed. 1980).
Nevertheless, since it is possible that the identity of appellees’
proper successors may change again before the case comes to trial,
we REMAND these motions to the district court.
27See note 12 supra.
28Qne could conceivably read Spomer, supra, more strictly than
we have here and conclude that it requires a plaintiff explicitly to
contend at some point that the specific successor of a named
defendant intends to continue the complained of activities. See id at
689 & n.10. It would, however, disserve the purposes of both the
liberalized pleading rules and Fed.R.Civ.P. 25(d) to do so, as this
case illustrates. Appellants alleged that the harm is a continuing
one and found it necessary to seek relief against all defendants’
A-32
In assessing the threat of future injury to appellants,
particularly in light of the shuttling in and out of the
state officials allegedly responsible for that injury, it is
of paramount importance to bear in mind the one
constant factor (one is tempted to say “actor”) in these
cases: the Texas selection system. That system provides
only the most rudimentary objective guidelines and
virtually no formal procedures to direct the jury
commissioners in making their selections for grand jury
service.”? As this court has previously observed, it relies
“at no stage on random choice or the laws of chance.”
Brooks, supra, 366 F.2d at 4. Because it is “highly
subjective” and “susceptible to abuse as applied,”
Castaneda, supra, 97 S.Ct. at 1281, it invites
discrimination of the type of which appellants complain,
successors in order to secure effective relief. Further, the facts
alleged, as has been demonstrated, give credence to the contention
that there is a continuing controversy with all defendants, and the
successors of appellees have made no record allegations that they
intend to abandon the practices of their predecessors. Under these
circumstances, if automatic substitution is to be truly “automatic,”
the controversy present on the face of the complaint should be
honored and no further specific pleadings or “contentions”
required. Otherwise, we will have reverted both to an older form of
substitution by motion, see 3B Moore’s Federal Practice Para.
25.01[1] (2d ed. 1980), and to a more rigid and impractical set of
pleading rules. We must remember that we deal here with
pleadings which entitle a plaintiff to present his claims in court.
They do not guranatee him an ultimate victory on the merits, nor do
they condemn a defendant to ultimate defeat and liability upon the
basis of unfounded charges. Subject to the limited effects given a
“voluntary cessation” of illegal practices, discussed below,
appellees’ successors may be able to prove either that the systems
did not operate in a discriminatory manner or that they have
reformed the grand juror systems of Hidalgo and Willacy Counties
and therefore that relief against them is inappropriate. We
interpret Spomer to require no more than is contained in these
complaints. And defendants, too, will have their day in court.
29See pp. 7881-7882 supra.
A-33
as is evidenced by the numerous successful challenges to
its operation raised in the context of criminal
proceedings. See, e.g., Castaneda v. Partida, 430 U.S.
482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); hernandez v.
Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954);
Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed.839
(1952); Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86
L.Ed. 1559 (1942); Smith v. Texas, 311 U.S. 128, 618S.Ct.
164, 85 L.Ed. 84 (1940); Muniz v. Beto, 4384 F.2d 697 (5th
Cir. 1970); Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966), cert.
denied, 386 U.S. 975, 87 S.Ct. 1169, 18 L.Ed.2d 135
(1967). Against this backdrop and in light of the history
of discrimination alleged in the complaints, one cannot
easily discount appellants’ allegations of impending
injury. It would be ironic, indeed, if appellees could rely
on the discreteness of the choices made and the inherent
turnover of the occupants of the crucial positions to
establish that no justiciable controversy exists. If these
arguments were credited, the operation of the Texas
selection system would be effectively insulated from
federal equitable relief to protect those in appellants’
situation from denial of their constitutional rights.
Appellees appear to seek a license in perpetuity to con-
tinue their old ways. This they may not have.*°
3%In Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966), the court
held, in a case involving a persistent pattern of violations of the
fourth amendment rights of black citizens by city police, that the
replacement of the defendant Police Commissioner by a new
official did not affect the vitality of the dispute. As one considers the
features of the Texas selection system described above, Judge
Soboloff’s words in Lankford are apt:
Our concern is not with the person who happens to hold
the office at a particular time, but with the office. The
named defendant is only a nominal party, and the real
aim of the proceeding is not to reach the Commissioner
individually but to forbid an evil practice that has long
and notoriously persisted in the Police Department.
Id. at 205 n.9.
A-34
B. In their next attack on the existence of a live case
or controversy, appellees argue that the dispute was
mooted by the 1979 amendments to the Texas selection
system. Insofar as they are relevant here, those
amendments, passed while the appeals were pending,
give the state district judge the option of using either the
old key man system or a new random selection system,
see Tex.Crim.Proc.Code Ann. Art. 19.01 (Vernon Supp.
1980),*! and provide that, in the event that the key man
system is utilized, “the commissioners shall, to the
extent possible, select grand jurors who [sic] the
commissioners determine represent a broad cross-sec-
tion of the population of the county, considering the fac-
tors of race, sec, and age.” See Tex.Crim.Proc.Code Ann.
Art. 19.06 (Vernon Supp. 1980).*2
These amendments do not, on their face, moot these
actions. The amendment to Article 19.06, in fact, is
without effect on them. Its requirement that the grand
jury list reflect a broad cross-section of the community
does no more than mirror the constitutional
requirements for the composition of grand juries, as
discussed below.’ The complaints allege that
defendants have violated these constitutional
requirements; we cannot conclude that the simple
incorporation of these standards into state law will end
the practices of which appellants complain.
Further, the creation of an option, vested in the state
district judge, to use a random selection system in lieu of
the key man system does not on its face moot this action.
First, the amendment does not require that the random
3!1This article, as amended, is reprinted in notes 3 & 4 supra.
This article, as amended, is reprinted in note 5 supra.
3See pp. 7898-7900 infra.
A-35
selection system be used. The state district judge
remains free to continue to use the key man system, and,
under the allegations of the complaints, the threat of
injury persists as long as that system is used. In those
cases in which a statutory amendment has been held to
moot a controversy arising under the prior version of the
statute, the amendment has generally been one which
completely eliminated the harm of which plaintiffs
complained. See, e.g., Kremens v. Bartley, 431 U.S. 119,
97 S.Ct. 1709, 52 L.Ed.2d 184 (1978); International
Society for Krishna Consciousnes v. Faves, 601 F.2d 809,
815-16 (5th Cir. 1979).*4 Nor do the records in these cases
contain any allegations by appellees or other Hidalgo
and Willacy County officials that they intend to switch
to the random selection system. At this stage of the
litigation, therefore, we must conclude that the
controversy persists.
Should appellees wish to present evidence at the trial
of these cases that use of the key man system has been
abandoned, they will be free to doso, and, if they succeed
in establishing its abandonment, that may be an end to
these cases to the satisfaction of all the parties. We note,
however, that even this voluntary cessation of the
complained-of practices would not necessarily moot the
controversy. As Judge Tuttle has recently written for
the ninth circuit,
There is a long-standing rule of equity that a
case does not become moot as to the specific
petitioner in a case, even if the complained-of
conduct has ceased, “if there is a possibility of a
recurrence which would be within the terms of
a proper decree.” See Bator, Mishkin, Shapiro
and Wechsler, Hart & Wechsler’s The Federal
“Thus, in Kremens, supra, the statutory amendments
“completely repealed and replaced the statutes challenged below. .
.” Id. 97 S.Ct. at 1715.
A-36
Courts and the Federal System 110 (1973). As
stated in United States v. W. T. Grant Co., 345
U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953),
an antitrust case in which the defendant had
voluntarily ceased the allegedly illegal
conduct:
Both sides agree to the abstract proposi-
tion that voluntary cessation of allegedly
illegal conduct does not deprive the
tribunal of power to hear and determine
the case, 7.e., does not make the case moot...
A controversy may remain to be settled in
such circumstances. . .. The defendant is
free to return to his old ways. This, together
with a public interest in having the legality
of the practices settled, militates against a
mootness conclusion. .For to say that the
case has become moot means that the
defendant is entitled to a dismissal as a
matter of right .. ..The courts have
rightfully refused to grant defendants such
a powerful weapon against public law
enforcement. [Citations omitted. ]
Id. at 632, 73 S.Ct. at 897.
Lyons v. City of Los Angeles, 615 F.2d 1248, 1248 (9th
Cir. 1980). See, e.g., Allee v. Medrano, 416 U.S. 802, 94
S.Ct. 2191, 40 L.Ed.2d 566 (1974); NLRB v. Raytheon
Co., 90 S.Ct. 1547 (1970); Walling v. Helmerich & Payne,
Inc., 323 U.S. 37, 65 S.Ct. 11, 89 L.Ed. 29 (1944).
Nevertheless, the action may be moot under W.T.
Grant, supra, “if the defendant can demonstrate that
’there is no reasonable expectation that the wrong will
be repeated.’ The burden is a heavy one.” 73 S.Ct. at 897
(footnote omitted). We thus caution the district court
that it must carefully assess the bona fides of any
claimed total (no less will do) abandonment of the key
man system in Hidalgo and Willacy Counties. Appellees
A-37
cannot be allowed to avoid suit by a mere temporary
change of practice, after which they would be “free to
return to [their] old ways.” Jd.
C. Appellees’ last contention that no justiciable case
or controversy exists is that it will be impossible for the
district court to formulate a remedy, even if appellants’
claim of discrimination is proven. While the court below
accepted this argument and we recognize that the
formulation of an effective remedy may not be an easy
matter, this argument seriously underestimates both
the equitable powers and duties and the creative
imagination of federal district judges in remedying
proven constitutional violations.
We note first the requirements placed upon the states
by the fourteenth amendment in their selection of grand
jurors. In one of the early cases considering the
functioning of the Texas system, Justice Black wrote:
It is part of the established tradition in the use
of juries as instruments of public justice that the
qury be a body truly representative of the
community. For racial discrimination to result
in the exclusion from jury service of otherwise
qualified groups not only violates our
constitution and the laws enacted under it but is
at war with our basic concepts of a democratic
society and a reresentative government.
35If the district court determines that the Willacy County case
should continue even if Willacy County has shifted to the random
selection option, it should allow the appellants the opportunity to
amend their complaint to name as defendant the state district judge
for their county since in that circumstance there may be no one
holding the office of jury commissioner. Both actions may thus
conceivably proceed against the state district judges alone; any
relief ordered, see Part II(C) infra, may run against the state
district judges, who in turn may he directed to order the jury
commissioners to implement it in the event that the judges return to
the key man system.
A-38
Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 165, 85 L.Ed.
84 (1940Xemphasis added).** As this court has made
clear, the Constitution permits neither tokenism nor
strict proportionalism but requires rather that the
grand jurors be chosen from a “fair cross section” of
those eligible for grand jury service, and that, to the
extent the state relies on the key man system for grand
juror selection, “to attain that cross section, jury
selectors must become acquainted with [the]
community’s human resources, which is to say,
significant elements... of that community.” See Brooks,
supra, 366 F.2d at 14. In a similar vein, the Supreme
Court has recently emphasized that the Constitution is
violated not only by the absolute exclusion of an
identifiable group, but also by the _ substantial
underrepresentation of such a group, if that result is
intentional. See Castaneda, supra, 97 S.Ct. at 1279.
From the perspective of potential grand jurors, these
requirements translate into a simple rule: the selection
system must ensure them equal consideration for grand
jury service, without regard to their membership in any
identifiable group. See Carter, supra, 90 S.Ct. at 523.
When a violation of these constitutional mandates is
proven, the federal courts have not merely the power,
but also the duty, to remedy it. This obligation is not one
easily to be denigrated. Certainly the restructuring of
the operation of a state institution may be a difficult—
even demanding—duty, but it is not a task with which
the federal courts are unfamiliar. In keeping with the
principle that, when violations of the equal protection
component of the fourteenth amendment are proven, the
federal courts have “ ‘not merely the power but the duty
to render a decree which will so far as possible eliminate
3%While most of the early jury discrimination cases involved
discrimination on racial grounds, the courts have also recognized
that discrimination against other identifiable groups violates the
fourteenth amendment. See pp. 7888-7891 supra.
A-39
the discriminatory effects of the past as well as bar like
discrimination in the future, ” Carter v. Jury
Commission, 396 U.S. 320, 90 S.Ct. 518, 529, 24 L.Ed.2d
549 (1970)emphasis added), quoting Louisiana v.
United States, 380 U.S. 145, 85 S.Ct. 817, 822, 13
L.Ed.2d 709 (1965), the federal courts have undertaken
the task of ensuring that state schools, see, e.g, Milliken |
v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745
(1977); prisons, see, e.g., Hutto v. Finney, 437 U.S. 678, 98
S.Ct. 2565, 57 L.Ed.2« 522 (1978); voter registration
procedures, see, e.g., Louisiana v. United States, 380
U.S. 145, 85 S.Ct. 817, 138 L.Ed.2d 709 (1965); and even
grand jury selection processes, see, eg., Turner v.
Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567
(1970); Carter v. Jury Commission, 396 U.S. 320, 90
S.Ct. 518, 24 L.Ed.2d 549 (1970), are operated in
consonance with constitutional principles. Indeed, the
Supreme Court has given strong utterance to the scope
of the federal courts’ equitable powers in the face of
proven discrimination in grand juror selection:
The federal courts are not incompetent to
fashion detailed and stringent injunctive relief
that will remedy any discriminatory
application of the statute at the hands of the
officials empowered to administer it.
Carter, supra, 90 S.Ct. at 527.37
s7Justice Brennan described the duty and power of the federal
courts to remedy state-imposed segregation of its schools in the
following terms:
A judicial decree to accomplish this result must be
formulated with great sensitivity to the practicalities of
the situation, without ever losing sight of the paramount
importance of the constitutional rights being enforced.
The District Court must be mindful not only of its
“authority to grant appropriate relief,” ... but also of its
duty to remedy fully those constitutional violations it
finds. It should be flexible but unflinching in its use of its
equitable powers. . ..
A-40
Against the backdrop of these principles, we consider
the district court’s conclusion that it could not fashion
effective relief to bring the operation of the Texas grand
juror selection system within constitutional
parameters. The district court recognized that the
courts had sanctioned equitable relief in similar cases
brought in Alabama and Georgia,® but found those
cases of “limited value” for its assessment of the task of
remedying the discriminatory application of the Texas
statutes. It emphasized that in the Alabama and
Georgia selection schemes, the jury commissioners were
required to compile a master list of qualified potential
jurors from which a venire was randomly chosen.
Discrimination in the compilation of a master list could
relatively easily be remedied by an order to compile a
new list by non-discriminatory means. The district
court emphasized that in Texas, on the other hand, the
jury commissioners were required merely to select a
group of twenty persons to be summoned as potential
grand jurors. Because the Texas statute left the method
for choosing this small group to the jury commissioners’
discretion and because the Supreme Court had upheld
the facial validity of the Texas system, the district court
believed it could not interfere with the subjectivity of
the choices made by the jury commissioners. Thus, it
considered only one mode of relief—an injunction that
Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct.
2766, 2777, 53 L.Ed.2d 851 (1977Xconcurring opinion).
8T he district court cited as examples of such cases in Alabama,
Carter, supra; Black v. Curb, 464 F.2d 165 (5th Cir. 1972); Preston v.
Mandeville, 428 F.2d 1392 (5th Cir. 1970); Salary v. Wilson, 415
F.2d 467 (5th Cir. 1969); and Billingsley v. Clayton, 359 F.2d 13 (5th
Cir. 1966\en banc), cert. denied, 385 U.S. 841, 87 S.Ct. 92, 17
L.Ed.2¢ 74 (1967); and, in Georgia, Thompson v. Sheppard, 490
F.2d 830 (5th Cir. 1974), cert. denied, 420 U.S. 984, 95 S.Ct. 1415, 42
L.Ed.2d 666 (1975); and Pullum v. Greene, 396 F.2d 251 (5th Cir.
1968). Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567
(1970), also arose in Georgia.
A-41
stated “ ‘do not discriminate by excluding a certain
class’ ”—and found that such an injunction was not a
viable remedy. Whether or not the court’s conclusion
regarding the viability of such relief alone was correct—
a point upon which we express no opinion—we find that
it was error to dismiss the complaint for the reasons
given in both these cases.
First of all, it is generally error in cases like these to
order dismissal on the pleadings because the court could
not from the outset define an appropriate remedy. As we
have pointed out, the Texas statutes do not structure the
process by which the jury commissioners select the jury
list which forms the basis for selection of the panel.
Appellants allege that the system has operated and
continues to operate systematically to exclude or
underrepresent several identifiable elements in
Hidalgolacy Counties. It is possible that, at tria!, it will
be established that certain procedures adopted and used
consistently by the jury commissioners were responsible
for that result. Certainly the district court would then be
able to enjoin these practices. In cases in which it
appears that an unconstitutional result has consistently
been produced by the operation of astate institution and
it is not immediately apparent how that result has come
about, a court has at a minimum an obligation to con-
duct an inquiry into how the system actually operated
before concluding that the system is not amenable to
equitable relief. Anything less is an abdication of the
court’s duty to remedy proven discrimination “’so far as
possible.’ ” Carter, supra, 90 S.Ct. at 529. Moreover,
as the seventh circuit has stated,
Difficulty of formulating a remedy if a
complaint is proved following a trial cannot be
grounds for dismissing the complaint ab inztio.
We cannot so easily belittle the powers of a
court of equity nor the ability of district judges
who have grappled with difficult remedies
before, e.g., school desegregation orders,
railroad reorganizations.
A-42
Littleton v. Berbling, 468 F.2d 389, 415 (7th Cir. 1972),
rev'd on other grounds sub nom. O’Shea v. Littleton, 414
U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). Thus, in
this case, it was error for the district court to dismiss
these cases on the pleadings.*9
It is likely that this erre: arose from the district
court’s failure to examine the problem of remedy in
these cases within the framework established by the
Supreme Court for devising remedies for constitutional
violations by the states. In Milliken v. Bradley, 433 U.S.
267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977), the Supreme
Court reviewed and outlined its three basic principles.
It held, first, that the nature of the remedy is
to be determined by the nature and scope of the
constitutional violation. Swann v. Chariotte-
Mecklenburg Board of Education, supra, 402
U.S. [1], at 16, 91 S.Ct. [1267], at 1276, [28
L.Ed.2d 554], The remedy must therefore be
related to “the condition alleged to offend the
Constitution. . .” Milliken I, supra, 418 U.S.
[717], at 738, 94 S.Ct. [3112], t3124, [41 L.Ed.2d
1069]. Second, the decree must indeed be
remedial in nature, that is, it must be designed
as nearly as possible “to restore the victims of
discriminatory conduct to the position they
would have occupied in the absence of such
conduct.” Id, at 746, 97 S.Ct., at 3128. Third, the
federal courts in devising a remedy must take
3897[The Supreme Court has pointed out on several occasions that,
while the Texas statutes are constitutional on their face, the great
discretion left to the jury commissioners renders them “susceptible
to abuse as applied.” Castaneda, supra, 97 S.Ct. at 1281. See
Hernandez, supra, 74 S.Ct. at 671. It would be ironic in the extreme
if this same potential for subjectivity which creates opportunities
for constitutional violations would also insulate the system from
equitable relief.
A-43
into account the interests of state and local
authorities in managing their own affairs,
consistent with the Constitution. In Brown I]
[Brown v. Board of Education of Topeka,
Kansas], the Court squarely held that “{s |chool
authorities have the primary responsibility for
elucidating, assessing, and solving these
problems. . .” 349 U.S. [294], at 299, 75 S.Ct.
[753], at 756, 99 L.Ed. 1083 (Emphasis
supplied.) If, however, “school authorities fail
in their affirmative obligations. . .judicial
authority may be invoked.” Swann, supra, 402
U.S., at 15, 92 S.Ct., at 1276. Once invoked, “the
scope of a district court’s equitable powers to
remedy past wrongs is broad, for breadth and
flexibility are inherent in equitable remedies.”
Id. at 2757 (footnotes omitted).** Under these principles,
it is again apparent that the question of the nature of the
remedy required is generally not to be addressed until
the nature and scope of the constitutional violation is
established and it is further established exactly what
relief is necessary to place the subjects of the state’s
discriminatory practices in the position they would
occupy absent such practice.
The third principle, that the interests of state and
local authorities in managing their own affairs should
be taken into account by the federal district court in
formulating its decree, provides the district court a clue
to an effective way of formulating relief in cases such as
40A lthough the Supreme Court phrased these principles in terms
of the school desegregation remedy which was before it, it indicated
that the desegregation remedy was in principle “like other
equitable remedies.” Jd. In Berry v. Cooper, 577 F.2d 322, 323 n. 3
(5th Cir. 1978), this court recognized the applicability of the
Milliken principles to the civil action before it, which involved a
claim of jury discrimination.
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these. It may prove desirable, if appellants prove their
claims of discrimination at trial, to order the jury
commissioners themselves to devise a plan to bring the
operation of the selection system within constitutional
parameters.*! This course of action appears particularly
appropriate in these cases, since the Texas statutes leave
such wide discretion to the jury commissioners in their
selection of the grand jury list.‘? It appears to be within
their discretion, for example, themselves to institute a
random method of selection of potential grand jurors
from a representative list, such as perhaps the county’s
voter registration lists.42 In the case of a particular
4IThis procedure has, of course, been applied regularly in
formulating school desegregation orders. See generally Milliken,
supra. Furthermore, the court may require those bringing suit to
submit counterproposals and/or to critique the plans submitted
by the jury commissioners. In any case the district court has final
authority for instituting a decree. A similar procedure to that
outlined here was followed by the district court in the Milliken
proceedings, see id., 97 S.Ct. at 2752-55, and it was the remedy
devised through this method that the Supreme Court reviewed.
Once a plan is approved by the district court, subsequent sets of
jury commissioners could simply abide by it and avoid further
involvement with the federal courts. Should they decide that they
are dissatisfied with the plan, however, any proposed changes
should be submitted to the district court, and the procedures
outlined above repeated.
42By these means the discretion allowed the jury commissioners
may be utilized to aid in the remediation of the abuses it has
fostered.
Any list which forms the-basis for a selection system like that
suggested here must itself be shown to represent the constitutional
“fair cross section” of the community. See Brooks, supra, 366 F.2d at
23. As the Supreme Court stated in Carter, supra, “Our duty to
protect federal constitutional rights of all does not mean we must or
should impose on states our conception of the proper source of jury
lists, so long as the source reasonably reflects a cross-section of the
population suitable in character and intelligence for that civic
duty.” Id., 90 S.Ct. at 525, quoting Brown v. Allen, 344 U.S. 443, 73
S.Ct. 397, 416, 97 L.Ed. 469 (1953).
A-45
grand jury, after selecting in this manner a sufficient
number of potential grand jurors, the jury
commissioners might apply the statutory qualifications,
if indeed they are required to do so.“ The district court
might then require that they file reports revealing how
their basic source was compiled, how and why certain
individuals were removed from the randomly selected
list, and so forth.
Certainly other types of plans might be devised by the
jury commissioners, and we by no means imply that the
one described above must be adopted. Indeed, this court
has held that, given the peculiarities of the Texas
selection system, it is not impermissible purposefully
to include members of identifiable groups which have
previously been unconstitutionally excluded in order to
ensure a “fair cross section” in the composition of the
grand jury. See Brooks, supra.“ In fact, the jury
“See note 8 supra.
Judge Brown has suggested that, in a system like that outlined
above, much constitutional difficulty may be avoided if the jury
commissioners delay exclusions on the basis of subjective statutory
qualifications until after a group of potential jurors has been
selected from the basic list. See Broadway v. Culpepper, 439 F.2d
1253, 1259 n.19 (5th Cir. 1971).
4sJudge Wisdom, who concurred in the result of Brooks, did so
only because, as he viewed the operation of the Texas scheme, “the
jury commissioners had no alternative. They could provide
representative grand juries only by intentionally including
Negroes.” 366 F.2d at 29 n.7. As we have indicated, we think there
may be other ways to remedy the Texas scheme if any violations are
proven. Nevertheless, Brooks clearly indicates the latitude left to
the jury commissioners and the court in devising a remedy.
We add one final cauticnary note regarding the purposeful
inclusion of previously excluded groups. As the court stated in
Brooks,
[T]his must never, simply never, be done as the means of
discrimination. It must never, simply never, be applied
to secure proportional representation. It must never,
A-46
commissioners have the benefit of guidance from a
number of federal court decisions discussing what may,
or may not, constitutionally be done within the confines
of the Texas system.“
In sum, the district court erred in dismissing the
complaints because it thought it could not formulate an
effective remedy.*”? Not only was dismissal on the
pleadings in these cases an appropriate response to its
fears regarding its ability to devise an effective
injunction, but, if discrimination is proven, it appears
quite clearly that by ordering the jury commissioners to
formulate a plan, the court can devise a remedy in
keeping with its constitutional duties and limitations.
Moreover, it must be kept in mind that if a plan is
required and the jury commissioners fail in their
affirmative duty to devise an adequate plan to remedy
any proven violations, the court may itself exercise its
broad equitable powers to formulate effective relief. See
Hutto v. Finney, 487 U.S. 678, 98 S.Ct. 2565, 2572, 57
L.Ed.2d 552 (1978); Milliken, supra, 97 S.Ct. at 2757;
Carter, supra, 90 S.Ct. at 529 n.46.4° The equitable
simply never, be applied to secure a predetermined or
fixed limitation.
Id. at 24.
“See e.g., cases listed at p. 7880 supra. Of particular relevance is
Judge Brown’s extensive discussion in Brooks, supra, 366 F.2d at
22-24.
““As we have indicated, appellants in both cases sought
declaratory as well as injunctive relief from the district court. That
court gave no additional reasons for its dismissal of the claims for
declaratery relief. Since we hold that, if appellants prove their
cases, injunctive relief is appropriate, it follows that declaratory
relief may also be granted. See generally Steffel v. Thompson, 415
U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974).
“In Carter, the Court noted with approval the decree entered by
then District Judge Johnson in Mitchell v. Johnson, 250 F.Supp.
117, 123-124 (M.D.Ala. 1966), that, after instructing that the old
A-47
powers of the federal courts are ample to remedy any
constitutional violations proven in the trial of these
cases. ‘9
jury roll was to be abandoned and a new one compiled in a non-
discretionary manner, provided:
“Failure on the part of defendants to comply immediate-
ly and good faith with the requirements of this
opinion and order will necessitate the appointment by
this Court of a master or panel of masters to recompile
the jury roll and to empty and refill the ** jury box.”
(Footnotes omitted.)
Carter, supra, 90 S.Ct. at 529, n.46.
497A ppellees have also argued here that principles of equitable
restraint, based on notions of federalism and comity and derived
from cases such as Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27
L.Ed.2d 669 (1971); O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669,
38 L.Ed.2d 674 (1974); Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46
L.Ed.2d 561 (1974); and Jiudice v. Vail, 480 U.S. 327, 97S.Ct. 1211,
51 L.Ed.2d 376 (1977), make it inappropriate for the federal courts
to order injunctive relief in these cases. This contention fails for
several reasons. First, Younger, O’Shea and Juidice held that
federal intervention was inappropriate because there it would
intefere with pending judicial proceedings in the state courts. In these
cases, the relief is directed to a time prior to the initiation of any
actual judicial proceedings; appellants’ compliance with the
district court’s order can be fully accomplished and evaluated
before any actual proceedings are commenced—before even the
grand jury’s consideration of any indictments. These cases are thus
outside the equitable restraint principle. See Gerstein v. Pugh, 420
U.S. 103, 95 S.CT. 854, 860 n. 9, 43 L.Ed.2d 54 (1975). Second, the
decision in Carter v. Jury Commission, Supra, indicates that no
such obstacle to federal injunctive relief exists. The Court
succinctly and definitively rejected the notion that there were any
barriers to injunctive relief in a civil suit such as that before it. See
id., 90 S.Ct. at 523-24. As we have shown, the relief sought in Carter
was not significantly different from that which may be required
here. Finally, in Rose v. Mitchell, 483 U.'S. 545, 99 S.Ct. 2993, 61
L.Ed.2d 739 (1979), in which the Supreme Court disputed
vigorously the availability of federal habeas corpus relief from
grand jury discrimination and in which the majority concluded
that this relief was not inconsistent with our notions of federalism,
see id. at 3003, the Justices on both sides of the question agreed that
A-48
IV.
In these cases we have merely resolved the parties’
preliminary skirmishings, and, from appellees’ side,
have detected more smoke than fire. The battle lines
now etched, however, we withdraw from the field and
leave the parties to mount their attacks and
counterattacks in the trial courts. In doing so, we must
note that appellees have in their possession a new
weapon capable of resolving or perhaps even averting
the conflict: the authorization to utilize a random selec-
tion system. While utilization of this system would not
necessarily end the controversy, see pp. 7897-7899
supra, it may well provide a key to the settlement of
these cases, a veritable truce flag. As the Supreme Court
noted in Castaneda, supra, use of a random selection
system “would probably avoid most of the potential for
abuse found in the key-man system.” See id., 97 S.Ct. at
1281 n.1 18.
For the reasons given in this opinion, the judgments of
the district court are REVERSED and the cases are
REMANDED, and appellants’ motions for substitution
of parties and for judicial notice are also REMANDED
to the district court.
REVERSED and REMANDED.
relief from grand jury discrimination could be obtained by means
of civil suits like the two we consider here. See id. at 3001 (majority
opinion); id. at 3014 (Powell, J. Concurring in the judgment). In
view of the fact that these opinions were all concerned with the cost
of considering grand jury discrimination on federal habeas review,
and that these opinions all view civil suits as a more appropriate
and less instrusive remedy, it is not a little ironic that the state
officials now argue that these same civil actions are barred by the
principles of federalism and comity.
A-49
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 77-3321
D.C. Docket No. CA-76-B-213
Ciudadanos Unidos De San Juan, ET AL.,
Plaintiffs-Appellants,
versus
COUNTY GRAND JURY COMMISSIONERS, ET
AL.,
Defendants-Appellees.
Appeal from the United States District Court for the
Southern District of Texas
Before GOLDBERG, FAY and ANDERSON, Circuit
Judges.
JUDGMENT
This cause came on to be heard on the transcript of the
record from the United States District Court for the
Southern District of Texas, and was argued by counsel;
ON CONSIDERATION WHEREOF, It is now here
ordered and adjudged by this Court that the judgment
of the said District Court in this cause be, and the same is
hereby remanded to the said District Court in
accordance with the opinion of this Court;
It is further ordered that defendants-appellees pay to
the plaintiffs-appellants the costs on appeal, to be taxed
by the Clerk of this Court.
July 31, 1980
Issued as Mandate:
APPENDIX B
B-1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
CIUDADANOS UNIDOS DE
SAN JUAN, CIUDADANOS
UNIDOS DE DONNA,
ARTURO GUAJARDO, JUAN
MALDONADO, PABLO
MARTINEZ, JESUS
RAMIREZ, JESUS JOEL
SOLIS, LALO ARCAUTE,
ROBERTO F. LOREDO,
CONRADA ARCAUTE,
APOLONIA S. MENDOZA,
ANTONIO M. GARCIA,
AND JUANA VALDEZ COX,
on behalf of themselves and
others similarly situated
Plaintiffs CIVIL ACTION NUMBER
76-B-213
THE GRAND JURY
COMMISSIONERS OF
HIDALGO COUNTY, TEXAS;
DAVID SMITH; JOHN JOE
STEVENS; MRS. HENRY
NELSON; ROMEO ESCOBAR;
ADOLFO DE LA GARZA;
AND THE JUDGE OF THE
98RD JUDICIAL DISTRICT,
HIDALGO, COUNTY, TEXAS, °
Defendants
* *# # # # &@& #& &@ #& & #& & He He He HSH HH HH HH HH SH CF
Oficina Legal del Pueblo Unido (James C.
Harrington) of San Juan, Texas, for the
Plaintiffs.
Oscar B. McInnis, Criminal District Attorney,
of Edinburg, Texas, and Rankin & Kern, Inc.
(H.H. Rankin, ur.) of McAllen, Texas, for the
Defendants.
B-2
MEMORANDUM
Ciudadanos Unidos de San Juan, Ciudadanos Unidos
de Donna, Arturo Guajardo, Juan Maldonado, Pablo
Martinex, Jesus Ramirez, Jesus Joel Solis, Lalo
Arcaute, Roberto F. Loredo, Conrada Arcaute,
Apolonia S. Mendoza, Antonio M. Garcia, and Juana
Valdez Cox, on behalf of themselves and others
similarly situated, filed a Complaint naming as
Defendants certain persons who at one time served as
Grand Jury Commissioners in Hidalgo County, Texas,
David Smith, John J. Stevens, Mrs. Henry Nelson,
Romeo Escobar and Adolfo de la Garza. Also named as a
Defendant is the former Judge of the 98rd Judicial
District, Hidalgo County, Texas, the Honorable Magus
F. Smith.
The Plaintiffs specifically invoke the jurisdiction of
this Court pursuant to 28 U.S.C. §§1331 and 1332 which
provide for jurisdiction where there is a federal question
and the amount in controversy exceed Ten Thousand
Dollars. Plaintiffs also assert jurisdiction pursuant to 28
U.S.C. §1343 which provides for jurisdiction over claims
arising under 42 U.S.C.A. §§1981, 1983 and 1985, which
sections the Plaintiffs claim the Defendants have
violated by their conduct. Jurisdiction under 28 U.S.C.
§§2201 and 2202 is asserted in relation to Plaintiffs’
request for a declaratory judgment.
The former grand jury commissioners are being sued
individually as well as in their official capacities while
the Judge is being sued only in his official capacity.
Plaintiffs’ Complaint alleges that as a class, persons
who are Mexican-American or bear Spanish surnames,
and/or women, and/or young people between the ages of
18 and 28, and/or poor persons, have been excluded from
grand jury service or have been denied representative
grand juries. Specifically, Plaintiffs’ Complaint alleges
that except for Jesus Ramirez, Plaintiffs or members of
Plaintiffs’ organizations have never been called for
B-3
grand jury service, even though each is qualified for
service in Hidalgo County grand juries.
For the redress of these grievances, Plaintiffs seek (1)
a declaration that their class, although qualified, has
been and is now systematically excluded from or
unconstitutionally underrepresented on grand juries in
Hidalgo County in violation of the law; (2) an injunction
preventing the grand jury commissioners and their
successors from excluding any class or group from
grand jury service and/or an order that in selecting
qualified grand jurors, the jury commissioners
affirmatively reach out and familiarize themselves with
qualifications of those eligible for service; and (3)
damages, Plaintiffs’ costs and attorney’s fees.
In addition to the above requested relief Plaintiffs also
sought a temporary restraining order and preliminary
injunction restraining the judge of the 98rd Judicial
District Court of Texas, from impaneling, convening, or
reassembling the grand jury, or, in the alternative, that
the judge be ordered to seal any future indictments
arising from Hidalgo County until such time as a full
hearing could be held. These requests were denied. See
this Court’s Memorandum encered in this cause on
November 3, 1976.
At the time this case was filed the case of Castaneda v.
Partida, 45 U.S.L.W. 43802 (U.S. March 28, 1977); which
originated in this Court and concerned alleged
discrimination in selection of Hidalgo County, Texas,
grand jurors, was scheduled for oral argument before
the United States Supreme Court. Believing that the
Castaneda decision would have a direct and substantial
bearing on the instant suit, this Court ruled that the
instant litigation be held in abeyance pending a final
decision in the Castaneda case by the Supreme Court.
Subsequent to the rendition of the Supreme Court’s
opinion, a Motion for Order Appointing a Person Other
Than the United States Marshal to Serve Process
B-4
pursuant to FED. R. CIV. PRO. 4(g) was granted and on
May 25 and 26, 1977, process was served on these
Defendants, with the one exception of Mrs. Henry
Nelson who has apparently waived service and entered
the lawsuit.
On July 6, 1977, the Defendants entered their Motion
to Strike Plaintiffs’ Complaint and Dismiss the Action
for Failure to State a Cause of Action. The motion is filed
on behalf of the Defendant Grand Jury Commissioners
as individuals, alleging that they have no official
capacities. The motion asserts that the Defendant
Grand Jury Commissioners were, at the time this cause
of action was filed, October 27, 1976, no longer Grand
Jury Commissioners of Hidalgo County because,
although they had been appointed to such positions on
October 21, 1976, on October 27, 1976, they were
discharged as such by the Court and ceased to further
function as Grand Jury Commissioners for the 93rd
Judicial District of Hidalgo County, Texas. The motion
also complains about the service of process in May of
1977, which, because of the actions of this Court in
holding this action in abeyance, was five months after
Judge Smith’s retirement and some seven months after
the discharge of the other Defendants as Grand Jurors.
Plaintiffs argue in their Answer to Defendants’
Motion to Strike that FED. R. CIV. PRO. 25(d), applies
to this case to allow an automatic substitution of an
official successor when as a public officer one is named
as a party-defendant in his official capacity and then
during the pendency of the litigation resigns or
otherwise ceases to hold office. However, Rule 25(d) is a
procedural device which does not affect any substantive
issues such as the defense of immunity from suit which
remain in the case despite a substitution. See generally
Notes of Advisory Committee on Rules to FED. R. CIV.
PRO. 25.
Defendants’ motion does in fact assert immunity on
behalf of all the Defendants as they were performing a
B-5
judicial function. As to Judge Smith’s liability to
Plaintiffs, either as an individual or in his official
capacity, nothing alleged in Plaintiffs’ Complaint, if
proved, would be able to overcome the doctrine of
judicial immunity. See Pierson v. Ray, 386 U.S. 547
(1967).
Judge Smith selected the Commissioners but did not
select the Grand Jurors. Surely a proposition similar to
the Tort Theory of Intervening Cause would also
insulate Judge Smith from liability. Only if it could be
proved that Judge Smith actively solicited only those
persons who he knew would follow instructions from
him that they discriminate against Spanish surnamed
individuals in selecting grand jurors, could this Court
contemplate an action against him. The Plaintiffs
complain of no actions on Judge Smith’s part to this
effect, and neither do they name Judge Smith as a party-
defendant in an individual capacity, which would also
be necessary. The rationale found in Brown v.
Culpepper, No. 77-1652 ‘5th Cir., Sept. 16, 1977),
further compels this Court to dismiss Judge Smith from
an action for damages under §1983 as he is not a proper
party.
This Court is similarly inclined to follow the same
immunity concepts that are applied to judges and
declare the grand jury commissioners, whether being
sued in their individual or official capacity, should have
immunity from a civil damages action under 42
U.S.C.A. §1983. It is in the public interest that grand
jury commissioners and grand jurors should be at
liberty to exercise their functions with independence
and without fear of consequences.
However, because of the view this Court takes, this
proposition of immunity, although agreed to by this
Court, is not the most important aspect presented by this
case. It is the opinion of this Court that the Complaint
should be struck down because no _ justiciable
controversy is presented. It has long been recognized
B-6
that in order for a Court to adjudicate a question, the
question must present a set of circumstances which will
allow the Court to fashion a remedy, and it is this Court’s
opinion that this case does not present a controversy
which lends itself to “specific relief through a decree of a
conclusive character.” See Aetna Life Ins. Co. v.
Harworth, 300 U.S. 227 (1987).
First however, consideration shall be given to the
question of alleged damages. The instant allegation of
damages was made for no other apparent reason than to
gain a jurisdictional foothold in this Court. It is also the
opinion of this Court that this jurisdictional foothold was
the only aspect considered in alleging damages. The
Plaintiffs at no point in their Complaint make a specific
claim for damages. There is only the general allegation
that they have been damaged “in excess of $10,000”,
which statement does little more than emphasize the
speculative nature of the asserted damages. Upon
reviewing the allegations contained in Plaintiffs’
Complaint, this Court finds that it would be impossible
for the Plaintiffs to prove, to any degree of certainty,
monetary damages they have suffered as a result of
these Defendants’ actions. In other words, there exists
no just and reasonable method of estimating damages as
uncertainable as those presented by the allegations in
this case. It would be impossible to isolate the actions of
these particular Defendants from those of the other
judges and grand jurors who have previously served in
Hidalgo County, and it would likewise be impossible,
and therefore fruitless to attempt, to define a time frame
within which to consider Plaintiffs’ allegations. The
result is that the fact of injury alone would be difficult
enough to prove but to certify an amount would be
impossible. Moreover, if an amount were determinable,
its distribution, especially to silent members of the class,
would present this court with a situation so
unmanageavle that this Court declines to contemplate
it.
B-7
Errors in composing a grand jury may be corrected on
appeal by those persons most directly affected; one who
has suffered indictment. With this in mind, the
Plaintiffs’ real motive for seeking an award of damages
becomes apparent. Plaintiffs’ primary interest is in the
deterrent effect that an award of monetary damages
would have on future grand jury commissioners and
that the possibility of a civil damages action will deter
future grand jury commissioners from discriminating
in the selection of grand jury members. However, the
deterrent effect of a fine is already embodied in 18
U.S.C. §248 which makes it a crime for any person
charged with any duty in the selection or summoning of
jurors, to exclude or fail to summon any citizen by
reason of that citizen’s race, color, or previous condition
of servitude, and provides for the levy of a fine, not to
exceed $5,000, upon conviction. This Court does not
believe that the lowering of the standard of proof from
one of beyond a reasonable doubt to one of a
preponderance evidence will increase the deterrent
effect upon grand jury commissioners beneficially
enough to outweigh the detrimental effect that such
action would have upon a State District Judge’s ability
to find persons willing to serve as grand jury
commissioners, which is vital to the administration of
criminal justice under the State’s present system.
Accordingly, this Court declines to entertain a civil
damages action upon the pleadings Plaintiffs’ have
submitted.
Turning to the question of the sought after injunctive
relief and this Court’s inability to fashion such relief,
Plaintiffs’ initial problem is one of a lack of standing. As
was intimated in this Court’s Memorandum of
November 3, 1976, Plaintiffs have no standing.
“... For the most part, the described ‘causes of
action’ seek protection for present and
prospective criminal defendants. However, no
specific Plaintiff is alleged to be confronted
B-8
with actual or imminent grand jury
indictment. More particularly, the appropriate
forum for a criminal defendant to raise the
issue of grand jury composition is in the state
court to which the indictment is returned.” See
Memorandum entered in this cause on
November 38, 1976.
However, even if the question of standing were
answered in Plaintiffs’ favor this Court is unable to
formulate and supervise an injunction which would be
an effective response to Plaintiffs’ request that this
Court enjoin the Defendant Jury Commissioners and
their successors from excluding any cognizable class or
group from grand jury service in Hidalgo County. In the
first place, there is very little upon which this Court can
rely in declaring that there are parties-defendant in this
lawsuit; in other words this Court would find it difficult
to justify a ruling that there are parties present against
whom or who represent a cognizable group against
whom injunctive relief may be directed. Judge Smith is
retired and consequently an injunctive remedy against
him would be futile and therefore the action against him
could appropriately be classified as being moot. The
Grand Jury Commissioners have been discharged and
probably will not be called upon to serve in that capacity
again, so any injunctive remedy levied upon them would
also be futile and ineffective.
However, in support of the proposition that both the
United States Supreme Court and the Fifth Circuit
Court of Appeals have clearly sanctioned the use of
federal civil suits against State Court Judges and
County Grand Jury Commissioners, or their
equivalents, Plaintiffs cite this Court to: Carter v. Jury
Commission, 396 U.S. 320 (1969); Black v. Curb, 464
F.2d 165 (5th Cir. 1972); Salary v. Wilson, 415 F.2d 467
(5th Cir. 1969); Preston v. Mande ville, 428 F.2d 1392 (5th
Cir. 1970); and Billingsley v. Clayton, 359 F.2d 13 (5th
Cir. 1966); which involved suits alleging discrimination
B-9
in the selection of grand and petit jurors in Alabama,
and Pullum v. Greene, 396 F.2d 251 (5th Cir. 1968); and
Thomas v. Sheppard, 490 F.2d 830 (5th Cir. 1974); which
involved similar suits under Georgia law. It is true that
in a limited sense these cases do stand for the proposition
that suits for injunctive relief against grand jury
commissioners may be brought in federal court stating
causes of action for violations of civil rights. However,
these cases are of limited value because whereas the
methods of grand and petit jury selection provided for in
Alabama and Georgia lend themselves to the
formulation of injunctive relief when a claim of
discrimination is proved, the Texas selection system
does not.
The procedures in Alabama and Georgia are similar
to each other. They both involve the compilation of a jury
list or jury roll by grand jury commissioners, from
which lists grand jurors and petit jurors are selected at
random. When, as illustrated by the cases cited above, it
is found that the grand jurors have discriminated
against certain groups in compiling the jury roll, an
injunction may be issued compelling the commissioners
to compile a new roll. Such an injunction would very
specifically spell out what it was that the grand jury
commissioners were to do. The order would be framed in
very definite terms; i.e. compile a new jury roll by a
certain date. if the grand jury commissioners failed to
compile a new jury roll, criminal contempt proceedings
could be brought to vindicate the authority of the court.
However, the procedures constructed by the Texas
statutes are markedly different and do not so easily lend
themselves to a similar judicial decree. In Texas the
District Judge appoints three or five persons to perform
the duties of jury commissioners. TEX. CODE. CRIM.
P. ANN. art. 19.01 (Supp. 1976-1977). This, of course,
involves a subjective determination on the part of the
judge. The grand jurors being provided with the
county’s latest assessment roll then select twenty
persons from the citizens of different portions of the
B-10
county to be summoned as grand jurors. TEX. CODE
CRIM. P. ANN. art. 19.06 (Supp. 1976-1977). This
involves another subjective or at least quasi subjective
determination on the part of the grand jury
commissioners.
Plaintiffs request this Court to issue an order that
would include very broad terminology; i.e. “do not
discriminate by excluding a certain class”. Wording to
the effect that grand jury commissioners should not
discriminate is so vague and overbroad as to defeat an
attempt to bring criminal contempt proceedings under
them because of the necessity in criminal contempt
proceedings to prove a specific intent on the part of the
alleged violator.
Similarly, this Court finds that the rendition of a
decree that would allow the initiation of civil contempt
proceedings would be impossible to effectively
construct. Civil contempt affords a remedy which serves
the purpose of a particular party and is either intended .
to coerce compliance with an order of the Court or to
compensate for losses or damages caused by
noncompliance. Since as has already been stated the
possibility of arriving at a figure that would represent
compensation is impossible, the thrust of a civil
contempt decree in this case, would be coercion. In other
words, damages assessed would be punitive in nature;
more akin to a fine than anything else. Since willfulness
of behavior is not a necessary ingredient of civil
contempt and since even the presence of good faith is no
defense, it would follow that the reluctance of a man to
serve as a grand jury commissioner under the threat of
being held in contempt for viclating an order of this
Court would be very great. Indeed, it is the opinion of
this Court that such reluctance would be so great as to
make the State District Court Judge’s task of appointing
grand jury commissioners an impossible one.
It should be recognized that the ability of this Court to
alter the process so as to do away with the potential for
B-11
the kind of discrimination complained of here, which
could be simply and easily done by replacing the
subjective method of selection with a random method,
has been eliminated because, although noted to be
“susceptible to abuse as applied”, “the facial
constitutionality of the keyman system .. . has been
accepted by [the United States Supreme Court].” See
Castaneda v. Partida, supra, at 4306.
In order to find that a particular grand jury was
selected in a manner that either did or did not
discriminate against identifiable groups within the
community, this Court would require testimony from
the judges appointing the commissioners about their
subjective choices and testimony from the grand jury
commissioners regarding their subjective choices, not to
mention testimony from and about the resulting grand
jurors as well as those not selected for jury services. All
this would have to take place during the time that the
grand jury would ordinarily be considering cases
presented by the district attorney and consequently
grand jury action would suffer a commensurate delay.
If found that there was discrimination and that
consequently a new grand jury should be compiled, a
review of the composition of the resulting grand jury
would be provided only by repeating the above process
which would further add to delay. It is the opinion of this
Court that such supervision would be unmanageable
and considering the nature of the criminal docket in the
Rio Grande Valley area of South Texas, the resulting
delays would not be in the best interest of the public that
the Courts are here to serve.
Even if this Court could conceive of a way to fashion
some relief, abstention might even then be the better
alternative. A procedure for challenging the array of a
grand jury is already contained in arts. 19.27 and 19.28
of the TEX. CODE CRIM. P. ANN. Those procedures
appear to allow a claim of the type presented here to be
fairly adjudicated without the bringing of a civil action
B-12
in a federal court which as is shown by this
Memorandum affords an inadequate opportunity for
this Court to act. This Court can see no hardship that
would result to Plaintiffs if the state remedies are
pursued. The state remedy is adequate and in the future,
if need be, Plaintiffs should pursue it instead of bringing
of an action similar to the one now before this Court.
Considering all the above, it appears that a completely
satisfactory solution to the dilemma Plaintiffs face, can
only come from the Texas State Legislature. In
Castaneda v. Partida, supra, Mr. Justice Marshall
wrote that for over thirty-five years the Supreme Court
has recognized the “potential for abuse inherent in the
Texas grand jury selection plan.” Smith v. Texas, 311
U.S. 128, 180 (1940); Hill v. Texas, 316 U.S. 400, 404
(1942); Cassell v. Texas, 3389 U.S. 282, 289 (1950);
Hernandez v. Texas, 347 U.S. 475, 479 (1954). This
inherent potential for abuse results from the
discretionary selection procedures allowed to the grand
jury commissioners by article 19.06 of the Texas Code of
Criminal Procedure. Consequently, in habeas cornus
proceedings, given the nature of the process, a showing
of statistical disparity establishes a prima facie case of
discrimination and requires the state “to explain how
ostensibly neutral selection procedures [have] produced
such nonneutral results.” Castaneda v. Partida, supra.
This fact of the apparent ease with which a criminal
defendant can construct a prima facie case of
discrimination in grand jury selection procedures,
when considered in the light of this opir ion which sets
forth this Court’s inability to respond to the needs of
those people who suffer this type of discrimination,
through the formulation of a civi! decree which would
prevent such discrimination, it is a small wonder that
the method used in Texas State Courts for selecting
grand jurors fosters a climate of disillusion in the
citizenry of this state concerning the administration of
criminal justice.
B-13
It is the hope of this Court that although the Plaintiffs
will surely find frustruation in the rendition of this
opinion, that they will not also find despair. There
remains the forum of the Texas State Legislature for the
Plaintiffs to present their greivances, and this Court,
trusting in the ability of the Texas State Legislature to
respond to the needs of its citizens, recommends that
such a course be pursued by the Plaintiffs.
The Clerk will send copies of this Memorandum to
counsel for the parties.
A judgment dismissing this case shall be entered on
this date.
DONE at Brownsville, Texas, on this the 28th day of
October, 1977.
/s/
Reynaldo G. Garza
UNITED STATES
DISTRICT JUDGE
— B-14
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
CIUDADANOS UNIDOS DE *
SAN JUAN, CIUDADANOS *
UNIDOS DE DONNA, 4
ARTURO GUAJARDO, JUAN *
MALDONADO, PABLO °
MARTINEZ, JESUS e
RAMIREZ, JESUS JOEL °
SOLIS, LALO ARCAUTE, °
ROBERTO F. LOREDO, °
CONRADA ARCAUTE, °
APOLONIA S. MENDOZA, *
ANTONIO M. GARCIA, *
AND JUANA VALDEZ COX, *
on behalf of themselves and .
others similarly situated °
Plaintiffs * CIVIL ACTION NUMBER
° 76-B-213
THE GRAND JURY °
COMMISSIONERS OF °
HIDALGO COUNTY, TEXAS; *
DAVID SMITH; JOHN JOE *
STEVENS; MRS. HENRY °
NELSON; ROMEO ESCOBAR;*
ADOLFO DE LA GARZA; °
AND THE JUDGE OF THE ‘*
98RD JUDICIAL DISTRICT, *
HIDALGO, COUNTY, TEXAS,”
Defendants
JUDGMENT
For the reasons stated in the Memorandum entered
this date, it is,
ORDERED, ADJUDGED AND DECREED that
Plaintiffs’ petition be dismissed for failure to state a
cause of action.
The Clerk shall send a copy of this Order with a copy of
the Memorandum to counsel for the parties.
B-15
DONE at Brownsville, Texas, on this the 28th day of
October, 1977.
/s/
Reynaldo G. Garza
UNITED STATES
DISTRICT COURT
APPENDIX C
C-1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
ROBERT CABALLERO, .
RAFAEL CANTU, YOLANDA*
CASTANEDA, ELOY
CASTANEDA, ANGELITA
REYNA, SYLVIA
CABALLERO, JUSTINO
FONSECA, JR., and
ABELARDO FONSECA on
behalf of themselves and
others similarly situated
+.
CIVIL ACTION NO.
VS. B-77-277
DELLIS PRATER, DORA
DURHAM, VICTOR
RICONES, JANIE PERALES,
and ESTELA CANTU,
WILLACY COUNTY GRAND
JURY COMMISSIONERS,
and their agency, assistants,
employees and successors in
office
oo + 2 2 2 2 @ 2 & 22 2 2 ¢ @ 2 SS 2
ORDER OF DISMISSAL
This lawsuit was filed by the same attorney who filed
Civil Action Number 76-B-213 and involves the
identical issues that were presented there. A copy of the
Memorandum entered in
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