# Petition — Hidalgo County Grand Jury Commissioners v. Ciudadanos Unidos De San Juan > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0748%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 450 U.S. 964 ## Text ' 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 s [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0748%3A1. Public record. Not legal advice.