Appellants Brief — Turner v. Fouche

Weds aa

a ~UPrY -— a

APR 1% 19

i . me P DAVIS,

IN THE

Supreme Court of the Unite?

Ocroser TeRM, 1968 9

No. O62 Q3

~<_

Catvin Turner, et al.,

Appellants,

aan ee

W. W. Fovcue, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

APPELLANTS’ BRIEF

moet -

- =

Jack GREENBERG

MicHaEL MELTSNER

10 Columbus Circle

New York, New York

Howarp Moore, Jr.

Peter RINDSKOPF

85914 Hunter Street, N.W.

Atlanta, Georgia

Attorneys for Appellants

Norman J. CHACHKIN

Of Counsel

Sa

TABLE OF CONTENTS

PAGE

RE BOIT eivinicrccnnincrocccsanincensiconcsnniitnntinsnnenininasincaannans 1

I a a cilelal eens 2

Constitutional and Statutory Provisions Involved ...... 3

SSRN IIIT ss ctctiteenicceenternnrcineidsliennunignecionypete +

III, sateapcaiesessaceseveinnsneshetinisienesiepossatuiaceiiispusiaceansinnaaaipaine 4

A. Initiation of This Litigation —......0000000002000.....-. 4

B. District Court Proceedings -.2.00220020222022022..2.1220000+- 5

C. Background of This Litigation —....00000000202.. 8

Be, ee GIDEON OE DOG casas cette 14

E. Selection and Duties of School Board Members 20

ge AA aE DN EN LT OER ENED ONTO 23

ARGUMENT

I. Statutory Standards Which Govern Georgia

Jury Selection Are Unconstitutionally Vague

and Permit Exclusion of Negroes From Jury

Service in Violation of the Fourteenth Amend-

ment to the Constitution of the United States .. 25

II. Georgia Constitutional and Statutory Provi-

sions for Selection of School Board Members

Operate in Taliaferro County to Dilute Negro

Participation in the Selection of Board Mem-

bers in Violation of the Thirteenth, Fourteenth,

and Fifteenth Amendments to the Constitution

GR acicen ceies aemine Nn ne tees J8

PALE OL IMCERLSD BP LY AE LEV TATE OE OLY HENLE ESN

PAGE

III. Georgia’s Prohibition of Membership on County

Boards of Education to Non-Freeholders Vio-

lates the Fourteenth Amendment ........................ 4s

nN nt isadunennmaands 55

APPENDIX

Constitutional and Statutory Provisions Involved 1a

TABLE oF CasES

Abington School District v. Schempp, 374 U. S. 203

(1963) 54-55

Allen v. State Board of Elections, —— U.S. ——, 37

U.S. L. Week 4168 (March 3, 1969) 4

Anderson v. Georgia, 390 U. S. 206 (1968) -.........0........ yp)

Anderson v. Martin, 375 U. 8. 399 (1964) 50

Aptheker v. Secretary of State, 378 U. S. 500 (1964) .. 52

Baggett v. Bullitt, 377 U. S. 360 (1964) 34

Baker v. Carr, 369 U.S. 186 (1962) .22..2.2.....ccccc-cccceeseseees 41, 4y

Board of Public Instruction of Duval Co., Fla. v. Brax-

ton, 326 F. 2d 616 (5th Cir., 1964) 4h

Board of Supervisors v. Ludley, 252 F, 2d 373 (5th Cir.

1958) oe

Bond v. Floyd, 385 U. S. 116 (1966) ..... 49,50 |

Bostick v. South Carolina, 386 U. S. 479 (1967) ............ 5 |

Brown v. Allen, 344 U. S. 433 (1953) 36-37 |

Brown v. Board of Education, 347 U. S. 483 (1954) ... 47

Brunson v. North Carolina, 333 U. S. 851 (1948) ............ 37

Burstyn, Inc. v. Wilson, 343 U. 8. 495 (1952) ................ 5

Carr v. Montgomery County (Ala.) Board of Educa-

tion, 253 F. Supp. 306 (M. D. Ala. 1966) -................... 4h

ie,

oH» & > & FC

ts

la

or

Se ee ee |

ili

PAGE

Cassell v. Texas, 339 U. S. 282 (1950) .................. 37

Cipriano v. City of Houma, 286 F’. Supp. 823 (KE. D. La.

1968), probable jurisdiction noted, 37 U. 8S. L. Week

3275 (Jan. 14, 1969), O. T. 1968, No. 705 ................00-+ 51

Cline v. Frink Dairy Co., 274 U. 8. 445 (1927) ................ 34

Cobb v. Georgia, 389 U. S. 12 (1967) ...2.........:ccccceceereereeeee 25

Colegrove v. Green, 328 U.S. 549 (1946) 00 41

Commercial Pictures Corp. v. Regents of University of

New York reported with Superior Films, Inc. v. De-

partment of Education, 364 U. S. 587 (1954) ............ 34

Davis v. Mann, 377 U. S. 678 (1964) 41

Davis v. Schnell, 81 F. Supp. 872 (S. D. Ala.), aff'd per

ee i eee 34, 42

Dowell v. School Board of Oklahoma City, 244 F. Supp.

971 (W. D. Okla., 1965), aff’d 375 F. 2d 158 (10th Cir.

1967), cert. den., 387 U. S. 931 (1967) 46

Edwards v. South Carolina, 372 U. S. 229 (1963) ........ 34, 52

Giaecio v. Pennsylvania, 383 U. 8S. 339 (1966) ................ 34

Gomillion v. Lightfoot, 364 U. S. 339 (1960) ........ 36, 40, 41,

42, 43, 44

Green v. New Kent County Board of Education, 391

1% 3), ree in oe

Griffin v. Illinois, 351 U. S. 12 (1956) .. 49

Griffin v. School Board of Prince Edward County, Ta, “

IE IEE IND xs, ccseseccosevtbiniceninconcbdsendibebsiimasanted 46

Griswold v. Connecticut, 381 U. S. 479 (1965) ............ 52

Hadnott v. Amos, —— U. S. ——, 37 U.S. L. Week 4256

(March 25, 1969) .......-.-c-ceccecececesee 40, 42, 43

Hague v. C. I. 0., 307 U. S. 496 (1939) ..0...-.cccceccsecneecneeeee 26

OS ER EI OTE LOE EE ONAN:

7

iv

PAGE

Harper v. Virginia Board of Elections, 383 U. 8S. 663

CINE ciceidascsseetehanitictsaenieteas Neddananmeaiiieme 24, 43, 49, 50, 52, 53

Herndon v. Lowry, 301 U. S. 242 (1937) 2200.....:c0.000-0-0-. 34

Hill v. Texas, 316 U. S. 400 (1942) .2000..cccccccccceocsoceorececees 3

Jones v. Georgia, 389 U.S. 24 (1967) 2.0.2... ccceose-ecoceecoeeee ys)

Kelly v. Altheimer, 378 F. 2d 483 (8th Cir. 1967) ........ 4)

Keyishian v. Board of Regents, 385 U. S. 589 (1967) ... 5:

Kramer vy. Union Free School District No. 15, 282 F.

OD. Fe Cie Fs. Bee: Be TNOD tetinctrertmieianmnitiaationel 51,54

Landes v. Town of Hempstead, 231 N. E. 2d 120, 20

N. Y. 2d 417, 284 N.Y. S. 2d 417 (1967) oescccccccesesene 51,53

Lane v. Wilson, 307 U. S. 268 (1939) .000000.2-.ccc00e- 42, 43,44

Louisiana v. United States, 380 U. S. 145 (1965) ....26, 30, 34,

35, 37, 4

MacDougall v. Green, 335 U. S, 281 (1948) 00. 39

McLaughlin v. Florida, 379 U. S. 184 (1964) .00220. 53

N.A.A.C.P. v. Alabama, 377 U.S. 288 (1964) 2000000000220... 52

N.A.A.C.P. v. Button, 371 U. S. 415 (1963) 20000000000. 51, 52

Neal v. Delaware, 103 U. S. 370 (1881) ......0:cc.ceccseeeeeeseone -_

Niemotko v. Maryland, 340 U. S. 268 (1951) 200000000... x G

Nixon v. Herndon, 273 U.S. 536 (1927) 22000000. teeeeeeseeoee 4) t

N. L. R. B. v. Newport News Shipbuilding & Drydock

eg _ a aaa Ree ee NE 4

Pierce v. Ossining, 292 F. Supp. 113 (S. D. N. Y. 1968)... 5l

Rabinowitz v. United States, 366 F. 2d 34 (5th Cir. en

| ee eo EE LI Mier Be SE OTLEY 3)

y

PAGE

Reynolds v. Sims, 377 U. 8. 533 (1964) ............ 24, 39, 40, 41

Rice v. Elmore, 165 F. 2d 387 (4th Cir. 1948) ............... 43

Sailors v. Board of Education of Kent County, 387

oy Ry PRE EK Rn reen enestee mmenmeneeme 39, 40, 42

Schine Chain Theatres v. United States, 334 U. S.

RSE ARES PERE on ae edo Oe ee 45

Schneider v. State, 308 U. S. 147 (1939) 00000000 52

Shelley v. Kraemer, 334 U.S. 1 (1948) -...00000020222-. 40, 43

Shelton v. Tucker, 364 U.S. 479 (1960) 00 ee 52

Sherbert v. Verner, 374 U. S. 398 (1963) -...............51, 52

Sims v. Baggett, 247 F. Supp. 96 (M. D. Ala.

SE Wi licl i si piaathnes atndlslnieksimadaldiglinedactbamdsnpiacbugnlacnanisets 39, 42, 44

Sims v. Georgia, 389 U. S. 404 (1967) 220000000... cee 25

Slaughter House Cases, 83 U. S. 36 (1873) —......0........... 43

Smith v. Allwright, 321 U. S. 649 (1944) 00. 42,44

Smith v. Bennett, 365 U. S. 708 (1961) 2020 49

Smith v. Paris, 257 F. Supp. 901 (M. D. Ala. N. D.

1966) aff’d 386 F. 2d 979 (Sth Cir. 1967) 002... 42

Smith v. Texas, 311 U. S. 128 (1940) 00. 35

South Carolina v. Katzenbach, 383 U. S. 301 (1966) ... 34

State ex rel. Mitchell v. Heath, 34 Mo. 226, 132 5S. W.

eRe Niet aioe cole Oh Ei Ne 53

Staub v. City of Baxley, 355 U. S. 313 (1958) 200000000... 34

Sullivan v, Georgia, 390 U. S. 410 (1968) 2000000... aah 25

Terry v. Adams, 345 U. S. 461 (1953) 2000000000002... 24, 42, 43, 46

Thomas y. Collins, 323 U. S. 516 (1945) ol 52

Turner v. Goolsby, 255 F. Supp. 724 (S. D. Ga. 1965;

supp. opinion 1966) 0000000... ae A 1, 9, 11, 12, 47

United States v. Atkins, 323 F. 2d 733 (5th Cir. 1963) .. 34

_ ‘United States v. Classic, 313 U. S. 299 (1943) 00000000... 50

vi

PAGE

United States v. L. Cohen Grocery Co., 255 U. 8. 81

bE SP eee ce eek Ser erhew Brew Ronee nce De. 8 eee 34

United States v. Logue, 344 F. 2d 290 (5th Cir. 1965) . 4

United States v. Mississippi, 380 U. S. 128 (1965) ........ 30)

United States v. National Lead Co., 332 U. S. 319

CED, cscchiiwackinsichnlnlibectermennlibonespsatgieniyididastnmncianuiniankerentnaniie 45

United States v. Searborough, 348 F. 2d 168 (5th Cir.

REN NDE OS ARUE NC AES SE ONE eh Se Se EO, Se Oe 46

United States v. Standard Oil Co., 221 U. S. 1 (1910) 4

West Virginia State Bd. of Educ. v. Barnette, 319 U.S.

Oe ED wach tecnico ecnpniteiieniientenss 51-52

Wheeler v. Durham City Board of Education, 346 F.

Se FE GA Es TN citetactestrcecescsnenicitacintinnnicicnnets 46

Whitus v. Georgia, 385 U. S. 545 (1967) -..........- 15, 25, 26, 27

Winters v. New York, 333 U. S. 507 (1948) .................. 34

Witcher v. Peyton, 405 F. 2d 725 (4th Cir. 1969) ....... 33

WMCA v. Lomenzo, 377 U. S. 633 (1964) -................... 4}

Yick Wo v. Hopkins, 118 U. S. 356 (1886) .................... 26

TaBLE OF STATE CONSTITUTIONAL AND

STATUTORY PROVISIONS

Ga. Code Ann. §2—6801, Art. VIII, §V, para. 1. of

Georgia Constitution of 1945 ..........---.----------------- 5, 6, 20, 48

Ga. Code Ann. §2—6802; Art. VIII, $V, para. II of the

Georgia Constitution of 1945 ... . 2

Ga. Code Ann, $24—2501 - sed 14

Ga. Code Ann. §32—902 oa 5, 6, 8

Ga. Code Ann. §32—902.1 5, 6, 20, 48

Ga. Code Ann. §32—903 5, 6, 20

Ga. Code Ann. §32—905 5, 6

Ga. Code Ann. §32—1116 .. of

a

vii

PAGE

FI Sear I i scssaeramaviendistanronnaominnsiionmeesbiennt 53

eS IR, Ut es suninmnsneennanioasnoniuunn 53

Ga. Code Ann. §59—101 -..0.00.. 5, 6, 14, 26

Ga. Code Ann. $59—106 2.000000... 5, 6, 15, 23, 26, 27, 29, 31

a e 15

I to ca eihesareulsnmnonnioion 15

ES _ EEE Pe RE URN 15

Sm IG TU cs ce eencee 15

i ceuineiimsadiniouaoau 16

cc tacemenbabciinnies 16

I i csesanmtemansioane 16

Sn IIc I ic oceeteeseetiorae 16

SU I, ces 16

Mn UES, UI 15

OTHER AUTHORITIES

EF, La 48

API, PMI, iu, RIN ccs enc ceesccrccestncesbetaccenpoucceee 20

' Cireular No. 6; Educational Research Service (1967) 21

Hearings on S. 1318 before the Subecomm. on Improve-

ments in Judicial Machinery of the Senate Comm.

on the Judiciary, 90th Cong., Ist Sess. (1967) ........ 30

' Kuhn, “Jury Discrimination: The Next Phase,” 41

U.S. C. Law Rev. 235 (1968) ................................30, 31, 34

Symposium on the Griswold Case and the Right of

Privacy, 64 Mich. L. Rev. 197 (1965) .......................-.. 52

The Congress, The Court and Jury Selection, 52 Va.

I elt eld Se nae cassava 30

The Forty-Eight State School Systems (1949) ............ 21

U. S. Code Congressional and Administrative News,

9th Cong., 2nd Sess. 31

IN THE

wt of the United States

TOBER TrerRM, 1968

No. 842

eae

ux Turner, et al.,

Appellants,

a:

W. Foucue, et al.,

Appellees.

{E UNITED STATES DISTRICT COURT

THERN DISTRICT OF GEORGIA

—_—_<>—

SLLANTS’ BRIEF

pinion Below

court below is reported at 290 F.

- 968) and is set forth in the appen-

lier litigation involving several of

_as Turner v. Goolsby, 255 F. Supp.

ipp. opinion, 1966).

—

This is an action for injunctive and declaratory relic!

in which jurisdiction of the district court was invoke

under 28 U. S. C. §§1331, 1343, 2201-02; 42 U. 8. ¢

§§1981, 1983, 1988, 1994, 2000d and 2000e; and the Fifth,

Ninth, Thirteenth, Fourteenth and Fifteenth Amendments.

The complaint sought, inter alia, to enjoin enforcement

and operation of Georgia’s constitutional and statutory

scheme for the selection of jurors and county boards of

education as in violation of the Constitution of the United

States. A statutory three-judge court was convened pur.

suant to 28 U.S. C. §§2281, 2284 (A. 18).

Jurisdiction

The three-judge court determined that it was properly

convenec. but found “no merit in the three-judge District }

Court questions presented” (A. 403). A final judgment and

decree was entered on September 19, 1968 (A. 406-407).

Timely notice of appeal to this Court was filed in the

court below on October 14, 1968. On December 2, 1968,

Mr. Justice Black extended the time for filing a Jurisdic-

tional Statement to, and including, February 8, 1969. On

February 24, 1969, this Court noted probable jurisdiction

(A. 408). Jurisdiction of this Court is invoked pursuant

to 28 U.S. C. $1253.

Constitutional and Statutory Provisions Involved

This action involves the following Georgia constitutional

and statutory Provisions, which are set forth in an ap-

pendix infra pp. la-lla:

Article VIII, Section V, paragraph I, of the Consti-

tution of the State of Georgia of 1945; Ga. Code Ann.,

§2-6801.

Article VIII, Section V, paragraph II, of the Consti-

tution of the State of Georgia of 1945; Ga. Code Ann.,

§2-6802.

Ga. Code Ann. §23-802

Ga. Code Ann. §32-901

Ga. Code Ann. §32-902

Ga. Code Ann. §32-902.1

Ga. Code Ann. §32-903

Ga. Code Ann. §32-905

Ga. Code Ann. §32-908

Ga. Code Ann. §32-909

Ga. Code Ann. §32-1101

Ga. Code Ann. §32-1118

Ga. Code Ann. §32-1127

Ga. Code Ann. §59-101

Ga. Code Ann. $59-106

Ga. Code Ann. §59-202

Ga. Code Ann. §59-203

Ga. Code Ann. $59-318

Ga. Code Ann. §59-319

This action also involves the Thirteenth, Fourteenth,

and Fifteenth Amendments to the Constitution of the

United States.

“— PP ito SPE LK CL LEI IES a i

Questions Presented

1. Whether statutory standards which govern Georgia

jury selection are unconstitutionally vague and permit the

arbitrary exclusion of Negroes from jury service in viola-

tion of the Fourteenth Amendment to the Constitution of

the United States?

2. Whether the Georgia system of selection of school

board members by the county grand jury operates to dilute

Negro participation in the selection of the board in viola-

tion of the Thirteenth, Fourteenth and Fifteenth Amend.

ments?

3. Whether Georgia’s prohibition of service on school

boards to non-freeholders violates the Fourteenth Amend-

ment?

Statement

A. Initiation of This Litigation

On November 14, 1967, Calvin Turner, a registered —

Negro voter residing in Taliaferro County, Georgia, and —

his daughter, a student in the public schools of the county, ©

brought this action against members of the county board

of education, jury commission, and representative grand —

jurors. A Negro father of six school age children, who is —

not a freeholder, was permitted to intervene as a plaintifi

(A. 72, 73). The complaint alleged that appellants, and

others similarly situated, were denied rights guaranteed

by the federal Constitution by the operation of Georgia

statutory and constitutional provisions which authorize the

selection of school board members and jurors.

st aeamotia D Sak

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Appellants contended, inter alia, that: (1) they had been

denied an opportunity to serve as jury commissioners,

grand jurors, and traverse jurors on account of race (com-

plaint paras. 11(c), 11(d)); (2) they had been denied on

account of race an opportunity to participate in the process

of selecting the officials who administer the public schools

of Taliaferro County (complaint, para. 11(a), (b)); and

(3) they had been denied on account of poverty, and the

requirement that school board members be freeholders,

the opportunity to actually serve as board members (com-

plaint 11(b)) (A. 7-14).

The complaint sought injunctive and declaratory relief

as to the offending provisions of state law: Ga. Code Ann.

§§2-6801; 32-902, 902.1, 903, 905; 59-101, 106; that mem-

bership on the board of education and jury commission

be declared vacant; that a receiver be appointed to operate

the public schools pending selection of a constitutionally

acceptable board; that a special master select members

of the grand and petit juries; and that ancillary damages

_ be awarded (A. 16-17). Because appellants sought injunc-

_ tive relief restraining the enforcement of state statutes

_ and constitutional provisions, a three judge court was em-

_ panelled and the State of Georgia permitted to intervene

_ (A.18, 65).

| 4 B. District Court Proceedings

The district court held two hearings before it rendered

‘ its decision. At the first, January 23, 1968, the court found

_ that the

evidence indicated and the court announced then and

now so finds that Negroes were being systematically

excluded from the grand juries through token inclu-

6

sion. ... The grand jury situation was such that

Negroes had little chance of appointment to the schoo

board (A. 399).

Counsel for the appellees were directed “to familiarix

defendants with the provisions of law relating to the pro.

hibition against systematically excluding Negroes from th

jury system” (A. 399). Appellees were also informed by

the court that it would be appropriate if two Negroes wer

appointed to the school board (A. 252).

At the second hearing, Februery 23, 1968, the court was

informed that the county jury list had been revised in

light of the court’s oral pronouncement that the master

list was illegally composed, and that on February 16, 1968,

the county grand jury had confirmed one Negro and on

white man to fill two school board vacancies (A. 265-69).

On August 5, 1968, the district court entered its opinion.

stating the issues as follows:

The thrust of the complaint is that the Negroes have

no voice in school management and affairs in that

there are no Negroes on the school board. It is con-

tended that Art. VII [sic], §V, I of the Constitution

of the State of Georgia of 1945, Ga. Code Am,

§2-6801, and Ga. Code Ann., §§32-902, 902.1, 903 and

905, all having to do with the election of county school

boards by the grand jury, are unconstitutional under

the equal protection and due process clauses of the

Fourteenth Amendment and under the Thirteenth

Amendment, both facially and as applied by reason of

the systematic and long continued exclusion of Ne-

groes and non-freeholders as members of the Board

of Education of Taliaferro County, Georgia, and o

th

di

7

the selecting grand juries. The same contention is

made with respect to the Georgia laws regarding the

appointment of and service as jury commissioners.

Ga. Code Ann., §§59-101 and 106 (Ga. Laws 1967,

p. 251, Vol. 1). Here again unconstitutionality in ap-

plication is asserted on the basis of systematic exclu-

sion of members of the Negro race from service as

jury commissioner. Unconstitutionality is claimed also

by reason of the alleged uncertainty, indefiniteness,

and vagueness of the standards set forth in each of

the statutes (A. 398).

The district court concluded that the grand jury list,

“as revised”, is not unconstitutional and that state consti-

tutional provisions and statutes governing jury and school

board selection are not unconstitutional on their face or as

applied: “The facts showed systematic exclusion in the

administration of the grand jury system prior to the revi-

sion but this resulted from the administration of the system

and not from the constitutional provision and statutes

under attack” (A. 403).

The court also concluded that the requirement that mem-

bers of the school board be freeholders is not unconstitu-

tional :

“There was no evidence to indicate that such a quali-

fication resulted in an invidious discrimination against

any particular segment of the community, based on

race or otherwise” (A. 403).

On September 19, 1968, the court entered a final judg-

ment, in conformance with its opinion, upholding the va-

lidity of all the challenged state statutes and constitutional

8

provisions and denied relief,’ other than to enjoin jury

commissioners from “systematically excluding Negroes

from the grand jury system” (A. 406).

C. Background of This Litigation

Consideration of appellants’ claims requires some {2-

miliarity with general characteristics of Taliaferro County

and earlier litigation between several of the parties.

According to the 1960 Census county population is:’

Number Percent

White 1,273 37.8

Negro 2,096 62.2

White (over 21) 877 47.3

Negro (over 21) 979 52.7

White (over 18)* 917 46.0

Negro (over 18) 1,073 54.0

While the exact number of registered voters of each

race in the county was not known it was generally agreed

—and the district court found—that Negroes and whites

each constituted 50% of those registered (A. 368-69, 300,

399).

? The court declined in its discretion to consider a single- joie

claim for ancillary money damages in the amount of $500,000 t

compensate plaintiffs for past deprivations and denials of federa

rights. A prayer for attorney’s fees was denied. Earlier the cour

had dismissed the complaint as to three defendants named indi-

vidually as representative grand jurors (A. 71).

51960 Census of population, Table 25, pp. 12-83, Table 27, pp

12-130, and Table 28, pp. 12-148.

* Of the 910 persons of school age in the county, 15.2% wer

white males; 13.2% white females; 39.6% non-white males an

32.1% non-white females. Ibid.

°

aNUSERUGAbioibA nan ualeaeaa sates ae

WSs GRR iltiecs Siem

eas

9

All of the teachers and children who attend public

schools of the county are Negro although the superinten-

_ Px Le he — a Ce .

NO NRE Seen Cr See noe US le ene

co FS CORT

Baie

dent is white (A. 21, 38-39; 24, 47, 52). The five-man

county school board had not had a Negro member in the

memory of board members until one was appointed as a

- eonsequence of this litigation (A, 23, 46); none of the

_ white board members themselves had children attending

- the public schools (A. 23, 47, 20, 38). The county jury

- commission has been composed of whites for at least the

last 50 years (A. 20, 38).

In 1965, Negro citizens of Taliaferro County, including

appellant Turner, brought an action in the district court

against the circuit solicitor, county sheriff, county attorney,

- superintendent of schools, and county board of education,

alleging, in summary, that by misuse of their offices and

by lodging unfounded criminal charges they had conspired

to deny the rights of county Negroes to free speech and to

a desegregated education. A three-judge court was con-

vened and found that a public assembly protesting segre-

gation had “set off a chain of events resulting in a flagrant

unconstitutional application of the statute proscribing the

disturbance of divine worship.” Turner vy. Goolsby, 255 F.

Supp. 724, 727 (S. D. Ga. 1965). The court also described

the tactics employed by whites to avoid desegregation of

the schools :

There are only two schools in the county; Murden

which is populated by Negroes, and Alexander Steph-

ens Institute which was populated by whites during

the last school term. It appears without dispute that

Alexander Stephens Institute has been closed since

the beginning of this school term on or about Sep-

tember Ist, and that all white children in Taliaferro

10

County are attending school in adjoining counti«

with most being transported on Taliaferro County

school buses. The role that the school superintendent

and the school board are alleged to have played i:

the conspiracy is to have secretly and covertly ar.

ranged for all the white children to leave the county

for school in other counties so as to eliminate the only

white school available to 87 Negro children who sough:

transfers to a desegregated school. The transfers were

sought pursuant to a plan of desegregation filed with

the Health, Education and Welfare Department. The

transfer applications of these Negro students hai

never, up until the time of hearing, been considered

by the superintendent and the school board. Instead,

the school superintendent concluded that some of the

applications for transfer were not bona fide and there.

upon called upon the school board attorney, defendant

Richards, to conduct an investigation as to whether

some of the applications were forged... .

At any rate, Mr. Richards took over the investiga-

tion from this point forward. And it must be noted

in considering this phase of the case that the form of |

application for transfer was illegal in the light of

several opinions of this court that notarization of the

signature of the applicant or of the parents or guard.

ian may not be required [citing cases].

Defendant Richards obtained what he considered to —

be sufficient evidence to have Plaintiff Calvin Turner.

a former teacher in the Negro school of Taliaferro |

County, indicted for forgery. We view that evidence

with considerable scepticism in the light of the illegal

transfer applications and other evidence submitted a

the hearing...

—

-—_ me em see ee == aS as ef

ee — ee — a. |)

11

There was some evidence that the unrest on the part

of the Negro plaintiffs stemmed in part from the fact

that the superintendent of schools refused their re-

quest for a gymnasium or for use of the only school

gymnasium in the county which was assigned to the

white school. There was some evidence relating to

the refusal to rehire several Negro school teachers

but this was not developed to the point of showing

that this resulted from the alleged conspiracy (255

F. Supp. at 727, 28).

The court determined that the white school superin-

tendent “with at least the knowledge, if not the help, of

the school board” (Jd. at 728) knew that the white schools

would be closed. Negroes, however, were not advised.

The decision “if not kept secret, was at least not pub-

licized” and “The superintendent arranged during the

month of August for her own son to transfer” to a school

in another county (/bid.). Although Negro transfer appli-

cations had been refused, white applications to attend

school in adjoining counties were granted and Taliaferro

public school buses used to transport them (/bid.).

In response to these facts, the court placed the school

system in receivership and appointed the state superin-

tendent of schools as receiver. He was instructed to sub-

mit a plan (i) to end the illegal expenditure of public

funds use to transport whites to adjoining county schools

and (ii) to grant the right of 87 Negro applicants for

transfer to adjoining counties where white children had

been transferred (Jd. at 730). The solicitor, county sheriff

and county attorney were enjoined from prosecuting

Negroes including app:llant Turner under “spurious”

Seige NED asian is Gas

ss

%

12

indictments for disturbing divine worship, as well as on per.

jury and forgery charges. The court also enjoined plain.

tiffs from disturbing schools and interfering with schoo!

buses carrying students to adjoining counties (Jbid.):

The formerly white school was ultimately reopened as an

elementary school and the formerly Negro school as a

high school (7d. at 731-34), but white children who had left

the public schools of the county, rather than attend then

on a desegregated basis, never returned. They either at-

tended a newly created private school or continued to

attend school in other counties (A. 47-9, 51-2, 354-59, 397);

At this time, Negro parents believed that they could not

alter continued operation of a segregated school system,

and that the white school board, several of whose present [-

members were also serving in 1965, was hostile to the needs F

and desires of the students actually attending the public

schools (A. 214-217). Repeated attempts by appellant

Turner and members of the Voters League, a civic group, -

to appear at school board meetings were unsuccessful, —

The time of scheduled meetings was changed withow

public notice, contrary to law (A. 343-47; infra pp. da, 6a) |

5 On May 20, 1966, the court entered a supplementary opinion

in which it granted the receiver’s motion for discharge after con-

cluding that Negro children who wished to attend school in aé-

joining counties did so and that adjoining counties had given

notice they would take no children, white or Negro, for the schoo

term 1966-67. Administration of the schools was returned to the §

Taliaferro board of education.

* During the 1966-67 term, there were 458 Negro children in the | s

public school system and 72 white children attending a local private | es

school. By

7 At the second hearing, appellees admitted that timely notice

of the schedule change had not been published but also alleged §-

through the introduction of hearsay evidence, that such failur f

was inadvertent (A. 345-346).

NS So

13

and the time also could not be determined despite attempts

- to obtain information from the board chairman (A. 188-

90, 206-07). When reached by phone his attitude sas

brusque and unhelpful (A. 210-11). A registered letter

sent to him went unanswered (A. 188-89).

One parent, Mrs. Mary Allen, told the district court her

experience with the school system. She was invited to

visit her child’s classroom by the Negro principal. After

the white superintendent observed Mrs. Allen in class,

_ the classroo1 teacher was told by the principal: “Miss

Hadden, discontinue this class until the parents (sic)

- leave” (A. 225). Mrs. Allen subsequently asked to be

- allowed to organize a parent-teacher association in order

_ to “have some kind of communication with the. teacher”

| (A, 229). The principal of the high school informed her

that this could not be done because the superintendent

had refused permission (/bid.). When a group of parents

attempted to appeal that decision, and present other griev-

ances, the board abruptly adjourned a meeting without

responding to any of the complaints. The course of the

_ meeting was described at trial:

“Judge Bell: How long did you stay in there?

The Witness: About ten minutes.

Judge Bell: And then they moved that meeting

be adjourned?

The Witness: That’s right, and put the heater out.

They had the heater on and a gentleman put the

heater out and we walked out. He started putting

the lights out too and we walked out and then they

closed the door.

Judge Bell: Did they give you an answer at all as

to your complaints?

ai a i en ame Eee ome etn eae chee ae rn TTT PMCs Mapa hy tea ecaerta

ee ae

14

The Witness: No answer.

Judge Bell: No answer?

The Witness: No sir.

Judge Bell: Have you had one since then?

The Witness: No, sir” (A. 233).°

Mrs. Allen stated her opinion of the school system a;

follows:

“You can’t even talk with the teacher, and can’t go

and sit in the classroom and can’t talk to the board,

can’t talk to anybody, nothing about your problems”

(A. 234).

Shortly after her experience with the school board she

moved to another county for the benefit of her child. Her

purpose in moving, she said, was “to get communication”

(A. 234).

D. The Selection of Jurors

The challenged selection process for the grand jury and

school board members begins when a judge of the Superior

Court, elected by the voters of a six county circuit,’ ap-

points six jury commissioners from among “discreet per-

sons” in the county for a six year term, Ga. Code Ann.

§59-101. At least biennially, these commissioners compile

from the official registered voter’s list used at the last pre.

ceding election a jury list of “intelligent and upright citi-

® At the first hearing Judge Bell stated: “ ... The court com

strues that paragraph of the petition to mean, based on the ev:

dence, that the First Amendment has been suspended in Taliaferm

County to the extent that citizens can’t assemble before thei

officials and petition for their grievances. That’s been the ev |

dence” (A. 214-215).

® Ga. Code Ann. §24-2501.

Es

<a

zens of the county.” Ga. Code Ann., §59-106.° While

Georgia law permits 18 year olds to vote only persons over

21 are eligible for jury service, Ga. Code Ann., §59-201.

15

After compiling the jury list the commissioners select

a “sufficient” number of the most “experienced, intelligent

and upright citizens”, not exceeding two fifths of the

whole, to serve as grand jurors.’* The judge of the Su-

perior Court draws from the grand jury list so selected

not less than 18 nor more than 36 names to serve on a venire

for the next term of court, and the sheriff summons the

prospective jurors, Ga. Code Ann., §§59-203, 206. After

excusals, a grand jury panel consisting of not less than 18

nor more than 23 persons is drawn from the venire (A. 311-

314, 322), Ga. Code Ann., §59-202."*

*§106 also provides that: “If at any time it appears to the

jury commissioners that the jury list so composed, is not a fairly

representative cross-section of the intelligent and upright citizens

of the county, they shall supplement such list by going out into

the county and personally acquainting themselves with other citi-

zns of the county, including intelligent and upright citizens of

any significantly identifiable group in the county which may not

be fairly represented thereon.”

“Prior to 1967, the commissioners were instructed to select

as jurors upright and intelligent persons from the books of the

Tax Receiver. Ga. Code Ann., §59-106 (superseded). The tax

books from which the prospective jurors were selected were segre-

gated by race. Ga. Code Ann. §92-6307. See Whitus v. Georgia,

385 U. S. 546, 549 (1967).

_? The requirement that Grand Jurors be the most “experienced,

intelligent and upright citizens” was added to the statute in 1968

subsequent to trial in this case.

Under Georgia law grand juries have a number of powers in

addition to indictment and appointment of school board mem-

bers. They may recommend that individual tax returns be cor-

rected, Ga. Code Ann. §59-306; inspect the list of voters, Ga. Code

Ann. §59-308 and the offices, papers, books and records of the

ELIS AVIA PR EMR OER SOLE PII RN, OTS ASRS SIN

16

At the January 23, 1968 hearing evidence was introduce

showing that on the jury list most recently composed, 5

out of a total of 328 traverse jurors (or 179°) were Negr

(A. 182-83, 399), and 11 out of 130 on the grand jury lis

(or 8.5%) were Negro (ibid.). The district court conclude

that systematic exclusion of Negroes was taking place ani

condemned the practice :

“We all know what systematic exclusion is, and whe

there is as many registered Negro voters in a county

as whites and you have 130 to 11 on the grand jury.

why that’s systematic exclusion, and that will have

to be corrected” (A. 251).

The court adjourned the hearing after informing defené.

ants of the court’s power to enjoin racial discrimination

5 x

if a remedy were not devised (A. 251, 254-255, 399).

At the beginning of the February 23, 1968 hearing ap.

pellees’ counsel presented a report to the district cour

which stated that on January 26, 1968, the judge of th —

Superior Court ordered the jury commissioners to revis

——

clerk of the Superior Court, the ordinary and the county treasure

or depository for conformance with their duties, Ga. Code An

§59-309. The jury may appoint citizens to inspect the affairs :

the ordinary or other authority having charge of county affain

the clerk of the Superior Court, county treasurer, tax collector.

school superintendent, sheriff, and all other county offices,

Code Ann. §59-310. Persons appointed by the grand jury!

inspect have full power to take control of the various offices, "

compel the attendance of witnesses, and hear evidence of frau!

and the non-performance of official ‘duty, Ga. Code Ann, §59-31!

The jury is also obliged to inspect the sanitary conditions of jai:

and to make recommendations as to their proper operation, Ge

Code Ann. §59-314; to inspect all public buildings and property 0

the county and report their condition, Ga. Code Ann, §59-315; an‘.

to.appoint a committee to inspect every orphanage, sanitorium, bi |

pital, asylum, and similar facilities for the purpose of ascertainit _

what persons are confined and by what authority, Ga. Code Au

§59-401.

RADE LT PPM SOI eI LO NLM PSO IN EIS 9 ih

y

re

17

- both the grand and traverse jury lists “to comply with the

' oral pronouncement” of the district court (A. 266). This

_ order was filed with the clerk of the Superior Court but

not generally publicized. By word of mouth, however, some

_ persons did hear of it and requested not to be put on the

_ jury list (A. 280-81). Over forty whites but only two or

_ three Negroes were not placed on the list as a result of such

requests not to serve (A. 89, 402). Appellants’ counsel ob-

_ jected to the report on the ground that it was hearsay and

that neither he nor appellants had been informed of the

revision or furnished with the report in advance of the hear-

ing but the district court received it in evidence (A. 269-

72; ef. 262).

According to the report the commissioners considered

“each and every name” (A. 77, 266, 67), on a list of 2,152

registered voters. When they were not familiar with

Negroes, they inquired of three Negroes who were “brought

in to work with us in order to assist in excluding people

from the list” (A. 275, 76). They consisted of an insurance

_ agent, his daughter-in-law and a person who was employed

_ by the board of education but whose position the chairman

_ did not know. These Negroes were not, however, appointed

_ jury commissioners (Ibid).

The Commission eliminated the following numbers of

_ persons from the voters list for the reasons stated:

Poor health and over-age 2000000. 374

waeer 21 years of age —_...................... 79

RESELL ee ea 93

Persons who maintained Taliaferro County

as a permanent place of residence but

were most of the time away from the

county 514

PIED NSE Sd BL IS YM CCE GS DEH ERA ANGST MER EAGLE SES

18

Persons who requested to be eliminated

from consideration 48

Persons about whom information could not

be obtained ............. 225

Persons of both the white and Negro race

who were rejected by the Jury Commis-

sioners as not conforming to the statu-

tory qualifications for juries either be-

cause of their being unintelligent or

because of their not being upright

SRE en be ea al 178

Names on voters lists more than once .......... 33

, IRC ER ITC DA ero mR A 1,544

(A. 77-78, 267),

These disqualifications left 608 names on the list. The

commissioners determined that fewer than 608 names were

needed, alphabetized the remaining names, and discarded

every other one. Of the 304 persons on the list, 113 (37%)

were Negro and 191 (63%) were white (A. 78, 267). From

the 304 they drew 121 names by lot and put those names

on the grand jury list (A. 78, 268). Forty-four (36%)

of 121 persons on this list were Negroes (A. 79, 268).

Of 32 persons initially drawn from this list for the grand

jury, 9 (or 28%) were Negro. Of the 23 persons actually

selected to serve on the grand jury, 6 (or 26%) were

Negro (A. 79, 268-69)."

*The judge begins with the first name on the list of 32 and

hears requests for excuses. After persons granted excuses are

eliminated, he chooses the first 23 names on the list (A. 322).

PPP ALM EIB CRPR COL MOOT Oe OS TTS Mig Oe tN neler ei ee

—

19

Two months after the February 23, 1968 hearing, the

jury commissioners reported additional information con-

cerning the revision to the district court and corrected

errors in earlier figures furnished. They found that 2,252

names, instead of 2,152, were on the voters list and that

eliminations were made for the following reasons:

Total Number Negro

Category of Names Names

SE pa 81 71

SD nti tihtins oncddniainasiiniacedons 94 Unknown

SIE tintictesesntarictcnstnnsnitie 43 2

No Information ................ 226 Unknown

Poor health and/or old

age .. 482 191

Oe 533 263

Miscellaneous .................... 179 167

Elected Officials and then

Known Duplications .... 8 —)-

Not Alternately Selected 302 106

(A. 89).

The district court only partially accepted the fact stated

in this report. The court found that 171 of the 178 persons

excluded by reason of character and intelligence (as op-

posed to 167 of 179) were Negro and that 3 of 43 persons

excluded by request (as opposed to 2 of 43) were Negro

(A. 402; ef. 89).

The commission chairman testified concerning the re-

vision. When asked what was meant by the standard of

“intelligent,” the chairman first stated it would be some-

one capable of interpreting proceedings in the courtroom

but then that the standard used was whether persons could

PORN, PEI ANAS PR SE HE Mt PELLETS LLANES EMA, OG CELE OR.

20

read or write (A. 283). He later testified: “ ... we mad

the overall consideration of uprightness in people why

were dependent and reliable and honest. We did not say

pick out so and so and say they were unintelligent’

(A. 284). He also testified that an “upright” citizen was

one who had a “good reputation, people who were honest

and of good character” (A. 284). While some person

were omitted from the list because they had a criming!

record the Chairman had no idea of the number or the

offenses which constituted grounds for exclusion (A. 283),

For example, he did not know whether any persons wer

found to lack a sufficiently upright character because of

having been convicted of a traffic violation (A. 287).

E. Selection and Duties of School Board Members

Under Georgia law, the county grand jury selects as

school board members five freeholders “of good moral

character, who shall have at least a fair knowledge of the | _

elementary branches of an English education and be favor.

able to the common school system”, Ga. Code Am.

§§32-902.1, 903. The operation of this system is statewide.

except in those counties altering it “by local or special

law conditioned upon approval by a majority of the quali-

fied voters of the county voting in a referendum thereon,”

Ga. Code Ann. §2-6802. Approximately 94 of Georgia: I

school boards are chosen by county grand jury, Atlanta

Journal, p. 7-A (Feb. 2, 1969). Each member is elected

for a four year term, Ga. Code Ann. §2-6801; §32-902, but

the board files vacancies, other than which aid from ex-

piration of a term, until the next grand jury meeting, @ 4

which a successor is chosen, Ga. Code Ann. §2-6801.

:

i

:

4

3

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|

i

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y

3

|

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1

21

The board is required to meet between the Ist and the

15th of each month at the county seat for the transaction

of business pertaining to the public schools. Ga. Code

Ann. §32-908 provides that the board “shall annually de-

termine the date of the meeting” and shall “publish same

in the official organ for two consecutive weeks following

the setting of said date; Provided further that said date

shall not be changed oftener than once in twelve months.”

The Georgia grand jury selection method is unusual. A

1949 study concluded that the prevailing method of selec-

tion in the United States is by public vote. While several

states where the county is the basic unit of government,

have appointive boards (by the Governor in Maryland; the

General Assembly in North Carolina; School Trustee Elee-

toral Boards in Virginia; and County Courts in some coun-

ties in Tennessee) Georgia was apparently the only state

where appointment was by the grand jury. The Forty-

_ Eight State School Systems (Council of State Governments,

—-1949), pg. 59, Table 23, p. 196. A more recent survey of

477 school boards of various sizes and locations revealed

_ that 82.2% were elected. See Circular No. 6, Nov. 1967,

Educational Research Service (Washington, D. C.).

At the January 23, 1968 hearing in the district court the

presiding judge remarked that the absence of Negroes on

_the board of education “simply will not do” and stated

4 pointedly that it would be wise if the school board filled

awe

its vacancies with “two outstanding Negroes ... if you

don’t want to do that we will know that on the 23rd [of

February)” (A. 252). Two vacancies existed on the school

board at the time of the hearing. The superintendent of

_ schools attended the hearing and upon her return informed

the school board of the presiding judge’s remarks (A. 350,

SELL LISLE GLE IOS PEM NE GAD)

—

351).° Two days later, the county board of education met

and appointed one Negro and one white to the board.

Shortly thereafter these choices were ratified by the grand

jury (A. 268, 339)—apparently without the public notice

required by law (A. 348-349, 351). No Negroes attended

the meeting at which the Negro board member was selected

although Negroes had attended board meetings in the past

(A. 347-348). Nor did the board discuss the qualifications of

Casper Evans, the new Negro member, for board mem-

bership (A. 351-52). He was “put in nomination and

elected” (A. 353). No effort was made to give notice of

the appointment meeting to any parent or the plaintiffs in

this suit (A. 348, 353).

Appellant Turner testified that Mr. Evans was a distant

relative of his who was about 71 or 72 years of age and

retired (A. 374). Mr. Evans had only attended school to

the third or fourth grade (A. 375) and had often stated

that he did not feel like going out in public any more or

to attend community meetings, because of his age (A. 374-

75). Turner believed that Evans was unrepresentative of

the Negro community (A. 381, 385), and that if Negroes

had been afforded an opportunity to choose, they would

have selected someone far more qualified educationally,

and otherwise, to serve (A. 385)."°

22

18 When the superintendent was asked what efforts she had

made to keep the public school system from becoming all Negro

she replied that “the schools are open to all the children of Talia-

ferro County” (A. 355-56).

16 He stated: “Mr. Casper Evans was taken from the lower

bracket, the very lowest bracket of those persons who have at-

tained a education” (A. 387). “I submit, said Mr. Turner, the

people in that community . . . knew nothing about the election

of Mr. Evans, and .. . this certainly wouldn’t be the democratic

process” (A. 381).

PINLELOL LOO DILL D LONI REELING SINE STEAL V IAM EO OGL 8

OL

—

23

Summary of Argument

I.

Georgia confers an opportunity for arbitrary and dis-

criminatory jury selection on jury commissioners by au-

thorizing them to exclude persons they do not believe are

“intelligent and upright” citizens. Neither Ga. Code Ann.

§59-106, nor the practice of the all-white Taliaferro County

commission, supplies a meaningful definition of the statu-

tory language. Vague standards have often been con-

demned in other spheres of governmental activity precisely

because of their tendency to vest this sort of undue dis-

cretion in officials to deprive citizens of their constitutional

rights. Requirements of specificity are at least as neces-

sary to a juror selection system, for although blatant acts

of discriminatory exclusion may be prevented by injune-

tion, the more subtle forms of the evil, such as discrimi-

natory limitations of the number of Negro jurors, will

survive as long as Negroes can be declared ineligible on the

basis of subjective and intangible character judgments.

(In this case the opportunity to discriminate was employed

by exclusion of 171 Negroes and only 7 whites as not be-

ing “intelligent and upright”.) The necessity of striking

Georgia’s vague selection standards for grand jurors is

heightened by the fact that the grand jury selects mem-

bers of the county school board—a cireumstance which has

resulted in the exclusion of Negroes from board member-

ship in a county where all the public school children are

Negro.

IES pO NS A OS CDOT MTet G9 SOE SLR ALY ER IL I OR LGR IEG AIL E Lal AT

-_ a SD eS,

—T

24

Georgia law authorizes a multi lavered seheme of seloe

tion of sehool board members whieh has resulted ine the

virtial exelusion of Negroes from board membership. Lim

ations on the right of Negroes to participate in the: ge

lection of ofieials “who control the local county tatters

that intimately touch [their] lives,’ Terry vo Adams, 34

US. d61, 470 (1958), violate the Constitution. When sueh

lhnitations dilute the weight of Negro votes they may be

redressed according to the standards of Reynolds vy. Sims,

877 US. O88 C1964), but other remedios, reflecting: the spe

cial need of Nogroes to unimpaired political rights, may

also be employed, tn 'Rahiaferro County, dilution of the

power of Nogroes to eleet sehool board members has re

sulted in a segregated sehool system and ino making the

Negroes virtually subjeet to the commands of the whites

in regard to the edueation of their children, The district

courterred by not declaring a school board seleetion system

which so operates unconstitutional and by failing to con

sider relie? whieh would eliminate diminution of Negro

voting power for school board members.

Georgia's constitutional and statutory requirement that

county school board members must be freeholders violates

the Equal Protection Clause of the Fourteenth Amendment

for it discriminates against the poor and landless far more

than the poll tax condemned in Harper v. Virginia Board

of Elections, 383 U.S. 663 (1966). The freeholder restric.

tion reflects an obsolete view of the attributes of real

|

a

2h

property ownership, it bears no reasonable relationship

to any legitimate governmental objective, and it: retards

citizen participation in what may be the most inportant

unit of loeal government. While the misehief caused by such

a prohibition is plain, Georgin has not suggested any “com

pelling interest” in the prohibition of non-freeholders from

board membership whieh would begin to meet the exnet

ing standards of equal protection appled when the right

to vote is involved,

ARGUMENT

Statutory Standards Which Govern Georgia Jury Se-

lection Are Unconstitutionally Vague and Permit Exelu-

sion of Negroes From Jury Service in Violation of the

Fourteenth Amendment to the Constitution of the

United States.

In Whitus v. Georgia, 385 U.S. 545, 552 (1967) this

Court condemned Georgia statutes which injected race into

the selection of jurymen because they provided an “oppor-

tunity to discriminate,” see also Sims vy. Georgia, 389 U.S.

$04 (1967); Cobb v. Georgia, 389 U.S. 12 (1967); Jones v.

Georgia, 389 U.S. 24 (1967); Anderson v. Georgia, 3290

U.S. 206 (1968); Sullivan v. Georgia, 390 U.S. 410 (1968) :

Bostick v. South Carolina, 386 U.S. 479 (1967). In 1967,

the Georgia legislature changed the source of prospective

but retained the “opportunity to discriminate” condemned

in Whitus, supra, by reenacting the vague and subjective

character “standards” of juror eligibility challenged here

aan

26

- -tuat all jurors be “intelligent and upright”.’ In addi.

tion, the “opportunity” for racial selection inherent in this

statutory language was “resorted to” (385 U. S. at 552)

by Taliaferro County jury commissioners, both before and

after this litigation commenced, a circumstance entitled

to considerable weight in considering the constitutionality

of the challenged statutory scheme, Louisiana v. United

States, 380 U. S. 145 (1965); Niemotko v. Maryland, 340

U. S. 268 (1951); Hague v. C. I. O., 307 U. S. 496 (1939):

Yick Wo v. Hopkins, 118 U. 8. 356 (1886). Although the

number of white and Negro voters in the county is equal,

until suit was filed only 11 of the 130 persons on the grand

jury list were Negro (A. 399) and during the court-ordered

revision of the jury list, approximately 96% (171 out of

178) of the persons disqualified by the commissioners as

not “intelligent and upright citizens” were Negro (A. 402).

It is apparent that the vagueness of the challenged provi-

sions at the very least serves as a convenient mask for

what is plainly racial discrimination.

Georgia law creates several levels in the jury selection

process at which virtually unlimited discretion is dele-

gated to persons possessing appointive powers. First, the

judge of the Superior Court, an official elected by the

voters of six counties, is authorized to appoint as county

jury commissioners anyone he deems to be “discreet”, Ga.

Code Ann. §59-101. Although Negroes constitute a ma-

jority of the county population, all the “discreet” persons

selected by Superior Court judges to be jury commission-

7 In 1968, the Legislature amended Ga. Code Ann. §59-106 to

require that grand jurors be “the most experienced, intelligent

and upright citizens” of those chosen as jurors.

VEAP A ELL TOO ET REIT NS EEE OS EIA TOE READ OS EE EP GI Ie Ne PR ee z |

—

27

ers over the years have been white. Second, the discretion

of the jury commissioners is such that they may disqualify

from service as jurors anyone they find not to be an “in-

telligent and upright citizen” and anyone for grand jury

service who is not among “the most experienced, intelli-

gent and upright”, Ga. Code Ann., §59-106. Section 106

also provides that if at any time “7t appears to the jury

commissioners” that the jury list is not a fairly representa-

tive cross-section of the “intelligent and upright citizens”

of the county, they shall supplement the list by “going out

into the county and personally acquainting themselves with

other citizens of the county, including intelligent and up-

right citizens of any significantly identifiable group in the

county which may not be fairly represented thereon.”

(Emphasis supplied.) Thus the statute first provides

the jury commissioners with “the opportunity to discrimi-

nate”; then charges the very same persons with the power

to determine by use of the same subjective standard

whether in fact the opportunity “was resorted to” (Whitus,

supra, 385 U.S. 552) and should be remedied."

The Taliaferro jury commissioners concede that eligi-

bility under §106 is determined by their “personal” opin-

ion. When asked to “describe in full and complete detail

the standards applied” the commissioners responded by

denying the existence of uniform criteria defining “intel-

ligent and upright”:

* The language of Ga. Code Ann. §59-106 instructing the jury

commissioners to find additional jurors from readily identifiable

groups is less ef a caveat than a camouflage. As long as “intelligent

and upright” remains a part of the jury selection statute, the

jury commissioners will have a built-in excuse for failing to in-

clude Negro citizens on the juries.

28

We did not detail or fix any standards in making

a determination as to who is upright and intelligent.

As previously stated, this determination is based

upon our knowledge either personal or through in.

vestigation of these persons being considered (A. 36),

When asked to state “in full and complete detail, the pro-

cedures followed in selecting persons for the grand jury

list” the commissioners stated that there “was no set pro-

cedure for this selection process” :

From the official registered voters list which was

used in the last preceding general election, as a group

we selected a fairly representative cross-section of

the upright and intelligent citizens of the county,

There was no set procedure for this selection process.

We did it as a group (A. 36).

The manner in which the commissioners confronted their

constitutional and statutory duty to select a cross-section

of the community is illustrated by the fact that until after

the court-ordered revision of the illegal jury lists the

commissioners professed total ignorance as to whether

discernible groups in the community were represented:

Q. 6. How many members of the present grand jury

list are members of the Negro race? A. 6. We do not

know.

Q. 7. How many members of the present grand jury

list are white females? A. 7. We do not know.

Q. 8. How many members of the present grand jury

list are Negro females? A. 8. We do not know.

ry

—

29

Q. 17. Of the names on the voter’s list, how many

are Negroes? A. 17. We do not know.

Q. 18. Of the names on the voter’s list, how many are

white females? A. 18. We do not know.

Q. 19. Of the names on the voter’s list, how many

are Negro females? A. We do not know (A. 30-32,

36, 37).

Even after the revision process was completed, the com-

mission had not formulated standards of selection to make

the vague language of §106 more precise. The chairman

testified, for example, that an “upright citizen” was one

who had a “good reputation in the community, good

character” (A. 284). As to the term “intelligent”, he

presented totally inconsistent definitions. First, he defined

the intelligent as:

People who we thought would be capable of inter-

preting proceedings that would be going on in the

courtroom (A. 283).

But we asked “what standards did you use,” he replied:

People that could not read nor write to our knowledge.

I don’t think we rejected anyone because you say they

are unintelligent. I mean that—

Judge Bell: You said awhile ago being able to

understand proceedings in court.

The Witness: Yes sir, and we made the overall

consideration of uprightness and people who were de-

pendent and reliable and honest. We did not say pick

out so and so and say they were unintelligent.

Judge Bell: In other words, you measured these

people by the standard as to whether or not they were

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30

capable of serving on a jury and understand what the

duty of a juror was?

The Witness: That’s right, sir (A. 284).

This jury selection scheme—as authorized by Georgia

law and employed by the Taliaferro County Commissioners

—violates appellants’ rights under the Fourteenth Amend-

ment. First. As is true with racial discrimination in

voting’® (an analogy especially pertinent here in light of

the dual role of the grand jury system see supra p. 20),

excessive discretion in the hands of local officials thwarts

nonracial selection of prospective jurors. Judge Kaufman

merely summarized what is generally recognized when he

told a United States Senate Committee that:

“... long experience with subjective requirements such

as ‘intelligence’ and ‘common sense’ has demonstrated

beyond doubt that these vague terms provide a fertile

ground for discrimination and arbitrariness, even when

the jury officials act in good faith.” *°

One study of jury selection procedures has concluded that

until character tests are replaced by objective standards

non-racial selection is unlikely: “It is this broad discretion

located in a non-judicial officer which provides the source

of discrimination in the selection of juries.” The Congress,

19 Condemnation of discretion in the hands of state voting of-

ficials is the heart of recent decisions of the Court. See United

States v. Mississippi, 380 U. S. 128 (1965); Louisiana v. United

States, 380 U. S. 145 (1965).

20 Statement of Hon. Irving R. Kaufman, Hearings on 8S. 1318

before the Subcomm. on Improvements in Judicial Machinery of

the Senate Comm. on the Judiciary, 90th Cong., Ist Sess. at 251 |

(1967). See also Kuhn, “Jury Discrimination: The Next Phase,”

41 U. S. C. Law Rev. 235, 266-82 (1968).

~~ -

re

The Court and Jury Selection, 52 Va. L. Rev., 1069, 1078

(1966) ; see also Rabinowitz v. United States, 366 F. 2d 34

(5th Cir. en bane 1966).*'

31

Second. While character tests such as those contained

in §106 provide a ready opportunity for racial selection,

their “indefiniteness . . . makes it most difficult to prove

that rejection of an eligible juror was the product not of

honest opinion but of racial policy” Kuhn, op. cit. p. 271.

Opinions of uprightness and intelligence primarily depend

on the individual making the judgment. Thus, a commis-

sion bent on racial discrimination may do so without check

as long as it is satisfied with limiting the number of

Negroes serving rather than excluding them totally.

Third. Even the fair minded comm!» «+.» is likely to

be misled by the shifting and subjecti.: ~o of char-

acter standards into racial or other art:i.a1_ selection.

The Fourth Circuit made this point forcefully when con-

sidering a Virginia statutory scheme similar to that in-

volved in this case:

It should not surprise anyone that an all-white jury

commission guided by a white judge would be unlikely

to find as high proportion of the Negro community

to be “best qualified” as found among white people.

It is a simple truth of human nature that we usually

find the “best” people in our own image, including,

**In recognition of the dangers of subjective selection standards,

Congress passed the 1968 Jury Selection and Service Act, Pub. L.

No. 90-273, 28 U. 8S. C. §§1861 et seq., abandoning the “key man”

system in favor of “random selections” and “objective criteria

only” in determining juror qualifications. See House Report, No.

1076, Feb. 6, 1968 (to accompany S. 989) set out in U. S. Code

— and Administrative News, 90th Cong. 2nd Sess. pp.

3.

we

32

unfortunately, our own pigmentation. But the danger

is not simply subjective. As a practical matter, in a

society that is still largely segregated, at least socially,

it is obviously true that white people do not generally

have the wide acquaintance among Negroes that they

have among other white people. A failure of either

the judge or the commissioners fully to acquaint them.

selves with all those eligible for jury duty can just as

effectively result in racial discrimination as would

conscious and deliberate invidious selection. Indeed,

within the meaning of the Equal Protection Clause,

such a failure has been equated with deliberate and

purposeful discrimination, J/ill vy. Texas, 316 U. 8.

400, 404 (1942).

Achievement of the stated purpose of the judge and

the jury commissioners to get only the “best qualified

people” was not aided by the existence of any objective

standard that might have been readily applied. The

only direction given by the legislature to the judge

in that regard is that he select from the citizens of

each county “persons 21 years of age and upwards,

of honesty, intelligence and good demeanor and suit-

able in all respects to serve as grand jurors * * *”

These are qualities hard to judge. The standards ap-

plied by the jury commissioners were, according to

the oath subscribed by them, no more definite: “We

will select none but persons whom we believe to be of

good repute for intelligence and honesty” Standards

such as these afford but little guidance to the consci-

entious judge and jury commissioner. It is not un-

natural that each may be left with the feeling that he

has discharged his duty when he has subjectively

selected the “best folks” known to him.

GM. BP TIE LEME EF ALLE CODE LR PE EAE Pt gry a Ph ™ ‘ eg

s ; SD ee < v% so rl

33

Selection of jurors “must always accord with the

fact that the proper functioning of the jury system,

and, indeed, our democracy itself, requires that the

jury be a ‘body truly representative of the community,’

and not the organ of any special group or class. If

that requirement is observed, the officials charged with

choosing federal jurors may exercise some discretion

to the end that competent jurors may be called. But

they must not allow the desire for competent jurors

to lead them into selections which do not comport with

the concept of the jury as a cross-section of the com-

munity. Tendencies, no matter how slight, toward the

selection of jurors by any method other than a process

which will insure a trial by a representative group are

undermining processes weakening the institution of

jury trial, and should be sturdily resisted. (Witcher vy.

Peyton, 405 ¥. 2d 725, 727 (4th Cir., 1969)

Finally, there is an evil inherent in vague character and

intelligence eligibility standards which is no less signifi-

cant for it being difficult to prove in any particular case.

It is that “commissioners can easily select only those Ne-

groes who behave as Negroes are meant to behave in their

contacts with white society—Negroes who ‘know their place.’

Indeed, it is only natural for southern jury officials to find

lacking in ‘judgment’ and ‘character’ those Negroes who

engage in civil rights activities, who ‘talk back’ to white

employers, or who have hung juries in previous cases with

racial significance. The usual statutory criteria readily

lend themselves to selection only of ‘safe’ Negroes who will

do what is expected of them in the jury room. The jury

commissioners may consciously exclude all but ‘Uncle

Toms,’ or they may in good faith simply regard other

34

Negroes as lacking in the qualities required of good jurors.”

(Kuhn, op. cit. at p. 271).

It is settled, however, that officials may not be empovw.

ered to dispense or deny important constitutional rights

in the exercise of a discretion which consists solely of

their own judgment, unguided by statutory or other guide.

lines. In other spheres of governmental activity this Court

has declared similar language permitting public officials

to make subjective decisions unconstitutional.” Dealing

with voting qualifications imposed by South Carolina

law, similar to those involved here for jury service, this

Court declared in South Carolina vy. Katzenbach, 383 U. §.

301, 312-13 (1966) :

“.,.the good morals requirement is so vague and sub-

jective that it has constituted an open invitation to

abuse at the hands of voting officials.”

Requirements of specificity are at least as necessary in

a selection system for jurors. “[E]xclusion from jury

*2 “Unreasonable charges” United States v. L. Cohen Grocery

Co,, 255 U. 8. 81 (1921); “unreasonable profits” Cline v. Frink

Dairy Co., 274 U. 8. 445 (1927); “reasonable time” Herndon v.

: Lowry, 301 U. 8. 242 (1937); “sacrilegious” Joseph Burstyn, Inc.

: v. Wilson, 343 U. S. 495 (1952); “so massed as to become vehicles

for excitement” (a limiting interpretation of “indecent or ob-

scene”) Winters v. New York, 333 U. S. 507 (1948); “immoral”

Commercial Pictures Corp. v. Regents of University of New York

reported with Superior Films, Inc. v. Department of Education,

364 U. S. 587 (1954) ; “an act likely to produce violence” in Ed-

wards v. South Carolina, 373 U. 8S. 229 (1963) ; “subversive per-

F son” in Baggett v. Bullitt, 377 U. S. 360 (1964); “reprehensive

: in some respect”; “improper”; and outrageous to “morality and

justice” Giaccio v. Pennsylvania, 383 U. 8S. 339 (1966). See also

Staub v. City of Barley, 355 U. S. 313 (1958) ; Lowisiana v. United

States, 380 U. S. 145, 153 (1965); United States v. Atkins, 323

F. 2d 733, 742-743 (5th Cir. 1963) ; Davis v. Schnell, 81 F. Supp.

872 (S. D. Ala.) aff'd per curiam, 336 U.S. 933 (1949); Board of

Supervisors v. Ludley, 252 F. 2d 373, 74 (5th Cir. 1958).

@

“hs

. “negernt 7 eee)

— FS LIE POOF IEG ELMO INTO ka DS ‘.

ELE LEIP LIT LOIN LE ES GE OOOO IN Mo nee .

35

' | service... is at war with our basic concepts of a demo-

cratic society and a representative government”. Smith v.

Texas, 311 U. 8S. 128, 130 (1940). And when, in addition,

the electoral function of the Georgia grand jury is con-

sidered (see supra p. 20), the denial of Fourteenth Amend-

ment rights by conferral of excessive discretion in the jury

commissioners is plain. There is simply no reason for

the State of Georgia to require that grand jurors who

may vote in its school board elections be “intelligent and

upright” when persons who vote in general elections must

meet no such standard. The school board “voter registrars”, .

who in Georgia happen to be jury commissioners, have “vir-

tually uncontrolled discretion as to who should vote and

who should not.” Louisiana v. United States, 380 U. S.

145, 150 (1965). In that case, this Court sustained a lower

court decision holding the state’s voter qualification test,

which required the prospective voter to interpret portions

of the Louisiana or United States Constitutions, invalid

on its face and as applied, under the Fourteenth and

Fifteenth Amendments. Basic to the Court’s holding was

the fact that the test “imposed no definite and objective

standards” upon the registrars who were charged with

administering it. (380 U. S. at 152)

Appellants do not contend that the state can set no

standards at all as qualifications for jurors (or school

board electors) but qualifications that the state sets must

be compatible with federal constitutional requirements.

As the record in this case amply demonstrates, there is

no question but that the present indefinite and non-

objective standards permit an extraordinary denial of

equal protection: in a county where Negroes are more

than 60 percent of the population and 50 percent of the

7 a TOW Ay OL O# PLP LAGE EEN EGR GO TADS NSIOLE och ABS PLN VTA NORE

36

voters, they make up a disproportionate minority of grand

jurors. By manipulation of the standardless and unre.

viewable discretion which Georgia has delegated to jury

commissioners, Negroes have been rendered a minority

of the school board electors as surely as though they

had been gerrymandered out of the county. Cf. Gomillion

v. Lightfoot, 364 U. 8. 339 (1960).

General injunctions against racial exclusion such as

granted by the district court may be sufficient to prevent

blatant acts of discrimination such as existed prior to

institution of this litigation, but subtler forms will sur-

vive as long as tools such as character tests which measure

intangibles remain readily available. At the first hearing

in this ease, the district court, in effect, ordered recom-

position of the county jury lists on a non-discriminatory

basis. While the result was an increase in the absolute

number of Negroes selected, an overwhelming proportion

(about 969%) of those excluded by the all-white commis.

sioners during the revision as not “intelligent and upright

citizens” were Negro. Thus, under the existing statu-

tory scheme it may well be possible to eliminate near

total exclusion, but not the racial limitation of Negroes

from the jury rolls. It is not, however, only exclusion

but limitation on the basis of race as well which the Con-

stitution prohibits: “Discriminations against a race by

barring or limiting citizens of that race from participa-

tion in jury service are odious to our thought and our Con-

stitution” (emphasis added).** Brown y. Allen, 344 U. §.

**That an unconstitutional limitation of Negroes has taken

place in Taliaferro County is shown by the fact that in compiling

a new list of jurors, the jury commissioners had 304 names (113

Negroes or 37%: 191 whites or 63%) remaining after randomly

discarding half the registered voters not disqualified. One of the

CLE LIEN DMPO LI SOLID NIE EL LEO ALM LLY APL LE, RIG

37

433, 470-471 (1953) citing Brunson vy. North Carolina, 333

U. S. 851 (1948); Cassell v. Texas, 339 U. S. 282, 286, 287

(1950).

It may well be that Taliaferro jury commissioners truly

believe that of all the registered voters who are by rea-

son of faulty intelligence or character ineligible to serve

as jurors, 96% are Negroes. They cannot be enjoined

from that belief. It is possible, however, for them to be

prohibited from bringing such opinions,’ similar to those

branded a “violent presumption” in Neal yv. Delaware,

103 U. S. 370, 397 (1881), to bear upon decisions as to who

should be selected as jurors. As was true in Louisiana v.

United States, “the vice cannot be cured by an injunction

enjoining its unfair application” 380 U. S. 145, 150 n. 9

(1965), but only by prohibiting the use of a vague and

subjective standard.

statutory standards of disqualification, the character and intel-

ligence test, in effect, operated to exclude Negroes only: the dis-

trict court found that of the 178 persons excluded, 171 were Ne-

gro. Thus prior to application of the character test there was

approximately a 50-50 percentage breakdown reflected on the lists

if we assume that the random number discarded merely halved

the numbers of the whites and Negroes of the initial list. As of

all those disqualified by the test, 96% were Negro, the result of the

test’s application was to reduce the Negro representation of the

revised list from approximately 50% (the proportion of Negro

voters) to 37%.

|

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Georgia Constitutional and Statutory Provisions for

Selection of School Board Members Operate in Talia.

ferro County to Dilute Negro Participation in the Selec.

tion of Board Members in Violation of the Thirteenth,

Fourteenth, and Fifteenth Amendments to the Constitu.

tion of the United States,

Although Negroes constitute about 600 of the resi

dents and S0°> of the registered voters in’ Palinferro

County, they long have been virtually exeluded from jury

serviee. Even after the distriet court found a blatant and

long standing disregard of Negroes’ constitutional rights,

the revised jury list) contained disproportionately few

Nogroes :

118) Negroes * 37%

191 Whites 5 63%

The new grand jury chosen from this list contained even

fower:

SF, FSET NERS

17 Whites ......... ssibiesiicsascicda deaieiudeiacas a

Beeause the grand jury selects the county school board,

Negroes have been consistently excluded from board men-

bershyr despite the fact that, since 1965, the publie schools

havo been attended and staffed solely by Negroes, whites

hgéving sent their children to private school or to public

Sschools in other counties to avoid desegregation. And

while the first Negro was selected to fill a vacaney on the

five member board before the second hearing in this case,

~

ees:

2a

this Wis done only after the cdlintriet court etronply im

plied that the court would net if Neyro exelusion from the

hoard continued,

3o

Appellants contend in Argument I, supra, that the jury

list, ax revined, violates the Mourteenth Amendment be

cause it Wax compiled purkuant to unconstiitutionally vague

statutory provisions which provide an undue opportunity

to diveriminate on the basin of race. Independent of

appellants’ contentions in’ thin rempect, however, the use

| of the grand jury to Kelect sehool board members in Valin

ferro County violates the Thirteenth, Fourteenth and

Fifteenth Amendments beenuse Georgian han adopted a

method of welection which operates to dilute the politient

influence of Negro citizens, liven if equality of represen

tation ix not required in’ welecting jurors who have no

political function, stricter standards apply here for two

reasons: (1) “the theme of the Constitution in equality

among citizens in the exercise of their political righte? *

and the Georgia grand jury exercises political power by

reason of its selection of sehool board members: and (2)

The Thirteenth, Fourteenth and Fifteenth Amendments

were intended to prohibit diminution of the voting power

of Negroes, the very turning of “Negro majorities into

minorities” Sims vy. Baggett, 247 F. Supp. 96, 109 OM. D.

Ala. 1965) which has oeeurred here.

That the system of selection of board members involved

, | (oes not provide for direct election does not diminish the

» | nights of Negroes to be afforded full and equal participa-

} | tion in it. Sailors vy. Board of Education of Kent County,

* MacDougall v. Green, 335 U.S. 281, 290 (1945) (Mr. Justice

, Douglas dissenting) cited with approval in Reynolds v. Sims, 377

U.S. 533, 564 n. 41 (1964).

PR EM PO Rs ei rhea

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“7

387 U. S. 105 (1967) illvstrates the principle that the right

of states to regulate their political subdivisions may not

validate racial discrimination. There selection of school

officials was held not subject to “one man, one vote” re-

quirements, the latter being subordinate to the right of

states to use appointive, non-representative, methods for

choosing administrative officials. But this Court was

careful to distinguish racial discrimination in the political

process from the Sailors holding (387 U. S. at 108-109):

40

A State cannot, of course, manipulate its political

subdivisions so as to defeat a federally protected

right, as for example, by realigning political subdi.

visions so as to deny a person his vote because of race.

[footnote omitted] Gomillion v. Lightfoot, 364 U. 8.

339, 345.

Certainly this exception to the Sailors rule prohibits stat:

action to dilute the influence of Negroes in the class oi

citizens choosing, appointing or electing members of a

political body.” Cf. Hadnott v. Amos, U. S. — 3

U. S. L. Week 4256 (March 25, 1969).

Unconstitutional dilution of the Negro vote in Taliaferro

County is established under the standards of Reynolds \.

>It can hardly be argued that the policy of the Thirteenth.

Fourteenth, and Fifteenth Amendments contemplates permissible

exclusions of Negroes from a political process merely because the

particular form of selection involved is not a general election

The primary purpose of those Amendments, recognized in numer-

ous decisions of this Court, see Shelley v. Kraemer, 334 U. 8. 1,2

(1948) and eases cited in footnote 30; Niron v. Herndon, 273

U. S. 536, 540-41 (1927) is to undo the effects of slavery updo

the civil rights of the Negro race. That purpose is subverted by

permitting exclusion of Negroes from any political process, whether

or not a regular election.

| =

41

Sims, 377 U. S. 533 (1964).*° For years, Negroes have

accounted for virtually none of the electorate of grand

jurors, and they accounted for only 26% of the most recent

jury.” In Reynolds, 25.1% of the populativn could elect

50% of the state senate, and 25.7% could elect half the

state house of representatives (377 U. S. at 545). Here

whites, with 50% of the voters have 74% of the elec-

toral strength, almost the same percentage gap as in

Reynolds. In Davis v. Mann, 377 U. S. 678, 688-89 (1964),

the disparity between population and voting strength was

less than 10% with regard to both houses of the state

legislature. In WMCA vy. Lomenzo, 377 U. S. 633, 647

(1964) the disparity was 16.39% with regard to one house

and 8.2% as to the other.

But neither the rights asserted, nor the remedies to

which appellants are entitled, need rest on Reynolds v.

Sims, supra, and Baker vy. Carr, 369 U. S. 186 (1962).%

*° Vote dilutions also appear to be prohibited under §2 of the

Voting Rights Act of 1965 which bans any “practice or procedure

... imposed .. . by any State or political subdivision to deny or

abridge the right of any citizen of the United States to vote on

account of race or color” (emphasis added). See Allen v. State

Board of Elections, —— U. S. ——, 37 U. S. L. Week 4168, 73

(March 3, 1969).

* Although a random selection system accounted for a drop

from an original representation of 37% on the ‘ury lists to the

26% figure on the panel, the latter is determinative. Nothing in

Reynolds indicates that states have the right by a random selec-

tion process to dilute votes. Even though that same process may

at some future time result in a higher proportional representation,

Reynolds, does not stand for the proposition that occasional vote

dilutions are more constitutional than unvarying ones.

**Diminishment of the effectiveness of Negro votes by use of

the gerrymander was condemned in Gomillion vy. Lightfoot, 364

U. S. 389 (1960) while Colegrove v. Green, 328 U. S. 549 (1946)

still appeared to prohibit judicial intervention in disputes alleging

non-racial vote dilutions. Mr. Justice Frankfurter, writing ma-

,

4 ao

~J

These cases merely extend the long established willingness

of the Court to overturn state political processes which

discriminate against Negroes to devices which discriminate

against persons who are not members of a racial minority,

It is possible—indeed, it is exceedingly simple—to burden

the franchise in a racially discriminatory manner while

insuring that individuals, whether black or white, account

for the same fractional share of a representative’s constit.

uency as every other voter. Thus, in Sims v. Baggett, the

harm done by aggregating Negro and white counties was

the diminution “of the Negro voting power” and the turn.

ing of “Negro majorities into minorities” 247 F. Supp. at

109; see also Smith v. Paris, 257 F. Supp. 901 (M. D. Ala.

N. D. 1966) affirmed 386 F. 2d 979 (5th Cir. 1967) ; Gomil-

lion v. Lightfoot, 364 U. S. 339 (1960); Hadnott v. Amos,

— U.S. — , 37 U. S. L. Week 4256 (March 25, 1969).

The national objective of eradicating voting discrimina-

tions against Negroes is an affirmative and specific consti-

. tutional pledge which antedates “one man, one vote” and

is in no sense limited by it, as demonstrated by the fact

that reapportionment law is limited to a defined class of

elections, Sailors v. Board of Education of Kent County,

’ 387 U. S. 105 (1967) while constitutional prohibitions of

4 racial discrimination include “any [election] .. . in which

¢ public issues are decided or publie officials selected,” Terry

5. vy. Adams, 345 U. S. 461, 468 (1953) (Mr. Justice Black.

42

jority opinions in beth, found ne mconsstemey between the two

results, for it was almost 100 yeeze ays that the Fifteenth Amend.

ment established as natiomal pel.cy (he deetrime that the right of

F Negroes not to be denied the franchise wold not be “indirectl

denied.” Smith v. Allereht, 321 1 B G09 G4 (1944). See al»

Lane v. Wilson, 307 TU & * DW’ Bore © Schnell, 336 U8

933 (1949).

Bisse ccnakeieucs

~——

ss f concurring) ; Hadnott v. Amos,

h | Week 4256 (March 25, 1969).

43

U.S. ——, 37 U.S. L.

In Taliaferro County, the method for selection of school

board members prevents Negroes from effectively influenc-

ing the choice of officials whose decisions critically affect

their lives and those of their children. The effect of the

system of selection is to render Negroes a minority of

le *® All three Civil War Amendments had as their central purpose

the eradication of the last vestiges of slavery. See Harper v. Vir-

ginta Board of Elections, 383 U. 8S. 663, 682, n. 3 (1966) (dis-

n- senting opinion of Mr. Justice Harlan) ; Shelley v. Kraemer, 334

at U.S. 1, 23 (1948) ; Slaughter House Cases, 83 U. S. 36, 81 (1873).

Because the “peculiar institution” was ground so firmly in the

Negro’s political subordination to whites, constructions of the Fif-

|. teenth Amendment have often recognized the right of Negroes to

more than abstract voting privileges, and cases such as Gomillion

v. Lightfoot, supra; Terry v. Adams, supra; Lane v. Wilson, supra;

), see also Rice v. Elmore, 165 F. 2d 387 (4th Cir. 1948) all stand

for the proposition that possession of the right to vote by Negroes

is meaningless unless that right can be effectively used to gain a

i. share of influence over the administration of vital community

affairs. As stated in Rice, supra, at 165 F. 2d at 393 (cited with

approval in Terry, supra, at 345 U. S. 466) :

no election machinery can be upheld if its purpose or effect

of is to deny to the Negro, on account of his race or color, any

effective voice in the government of his county or the state or

community where he lives (emphasis added).

This Court has recently held that burdens upon the ability of

h Negro candidates to be elected violate the Fifteenth Amendment

ry because they deprive Negro voters of the right “to cast their votes

’ effectively,” Hadnott v. Amos, 37 LW 4256, 57 (1969). Thus, the

k. Civil War Amendments are concerned with more than the simple

abstract right to vote. The protection of voting is one means to-

~ — ward the achievement of what is necessarily the larger goal of

0 | preserving the ability of Negroes to engage the political process

d- | effectively in the protection and establishment of their freedom.

of | Votes alone are insignificant unless they are permitted to work

ly toward that objective, and dilutions are to be measured not merely

® | by their effect to diminish the weight of votes, but by their effect

Ss to dilute the capacity of those votes to achieve their underlying

objective, namely the eradication of the remnants of slavery.

EMR NRA SRS RARE MONTY NR PAS OR aed el RA Re GUA ott al anatert 8G lai seaman ve

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those who select board members, thus jeopardizing their

right to a desegregated school system, and conferring con.

trol of the schools on those who have no interest in educa.

tional quality, and whose hostility to Negroes in the county

is a matter of record. The evil is not diminished because

all Negroes have not been precluded from participation in

the selection process. “(D)ilution of Negro voting power

...18 Just as discriminatory as complete disfranchisement

or total segregation.” Sims v. Baggett, 247 F. Supp. 96,

109 (M. D. Ala. 1965). Nor is the injury to appellants

lessened by the fact that a Negro was finally put on the

school board after the first hearing in this cause. The evi-

dence suggests that this was a token appointment by the

grand jury under pressure of this lawsuit. The selection

was without public notice, contrary to state law, and there

was evidence that the person chosen was infirm, and not

representative of the Negro community, see supra pp. 21,

22. In any case, the essence of appellants’ claim is that

they, and the class they represent, are limited in their power

of choosing board members; that claim is in no way weak-

ened by the fact that the school board might have appointed

someone who also might have been chosen if the Negro

community had the electoral power to which it is entitled.

To paraphrase Gomillion v. Lightfoot, 364 U. S. 339 (1960)

the inescapable effect of this long established scheme is to

despoil Negro citizens, and only them, of their right to

participate meaningfully in the selection of school board

44

members.

Where Negroes have been deprived of their political

rights the remedy has been invalidation of the discrimina-

tory features of the system, e.g., Lane v. Wilson, supra;

Smith v. Allwright, supra. Where a vague delegation of

1;

of

45

power has been the mechanism involved, the delegation

has been abolished, Louisiana vy. U. S., supra. In their

complaint, appellants also sought appointment of a re-

ceiver to operate the school system until a constitutional

system of selecting board members could be instituted. In

addition, the district court might have appropriately re-

stricted control of the schools to Negro parents until whites

dusxcastrated the kind of good faith which would render

their participation no longer a danger to Negroes, say by

reversing the withdrawal of their children from the system.

The district court erred fundamentally, and, misconceived

its function, in not adopting one of the available remedies

which would eliminate the diminution of the franchise

worked by the grand jury selection system.

Federal equity courts have broad power to mold their

remedies and adapt relief to the circumstances and needs

of particular cases. The test of the propriety of such

measures is whether remedial action reasonably tends to

dissipate the effects of the condemned actions and to pre-

vent their continuance, United States v. National Lead Co.,

332 U. S. 319 (1947). Where a corporation, for example,

has acquired unlawful monopoly power which would con-

tinue to operate as long as the corporation retained its

present form, effectuation of the Sherman Antitrust Act

has been held even to require the complete dissolution of

corporate relationships. United States vy. Standard Oa

Co., 221 U. S. 1 (1910); Schine Chain Theatres v. United

States, 334 U. S. 110 (1948). Compare N. L. R. B. v. New-

port News Shipbuilding & Drydock Co., 308 U. S. 241, 250

(1939) ; Louisiana v. United States, 380 U.S. at 154 (1965).

Numerous decisions establish that the federal courts con-

strue their power and duties in supervising the dis-

7

establishment of racial discrimination to require as ef.

fective relief as in the antitrust area.” So in Griffin y.

School Board of Prince Edward County, Va., 377 U. 8. 218

(1964) this Court ordered a public school system which

had been closed to avoid desegregation to be reopened,

See also Green v. New Kent County Board of Education,

391 U. S. 430, 438, n. 4 (1968).

46

In this case the deprivation of political power through

the layers of discretion authorized by the statutory selec.

tion scheme—from appointment of jury commissioners by

a judge elected by voters of six counties to grand jury

selection—powerfully affects “matters that intimately

touch the daily lives of citizens,” Terry v. Adams, 345 U. §.

461 (1953).** The proper education of their children has

* E.g., Carr v. Montgomery County (Ala.) Board of Educa

tion, 253 F. Supp. 306 (M. D. Ala. 1966); Dowell v. School

Board of Oklahoma City, 244 F. Supp. 971 (W. D. Okla., 1965)

aff'd 375 F. 2d 158 (10th Cir., 1967), cert. den. 387 U. S. 931

(1967); United States v. Logue, 344 F. 2d 290 (5th Cir. 1965);

Board of Public Instruction of Duval Co., Fla. v. Brarton, 3%

F. 2d 616, 630 (5th Cir., 1964); Wheeler v. Durham City Board

of Education, 346 F. 2d 768 (4th Cir., 1965); Kelly v. Altheimer,

378 F. 2d 483 (8th Cir., 1967); United States v. Scarborough,

348 F. 2d 168 (5th Cir. 1965).

*! Powerlessness to affect the fate of their children was one of

the most characteristie—and one of the most destructive—aspeets

of Negro slavery. Yet, today in Taliaferro County, not only are

Negro children trapped in a school system which keeps them in

racial isolation, but the parents of those children are prohibited

from influencing the administration of the schools. Negro parents

are kept from attending board meetings, they cannot observe

their children in class and they cannot even freely form a par-

ents-teachers association, see pp. 12-14, supra (A. 188-190, 206-

07, 210-211, 225, 229). Negro children do not enjoy an integrated

education in Taliaferro largely because three years ago a scheme

was devised enabling white students to avoid attending integrated

schools. Sehool board participation in this conspiracy was so well

established that in 1965 the district court felt constrained to re-

move the school system from board control and place it in re-

-

arr one 8 eH

— i a

ba

47

been recognized time and again as of crucial importance

to the Negro race since Brown y. Board of Education, 347

U. 8. 483 (1954). That interest cannot be adequately pro-

tected within the context of a structure which is subject to

total domination by county whites who have continu-

ally and consistently shown themselves antagonistic to

the interests and rights of Negroes. Only three years ago

white resistance to integration of the schools was so gr at

as to necessitate a federal court to order placement of the

school system in receivership. Since the termination of that

receivership no change in white community sentiment has

been manifested. There is no evidence in the record of

any significant attempt by that community, or its school

board, to reverse the exodus of white students from the

public schools. The school board even refuses to listen to

the grievances of Negro parents whose children do attend

ceivership. That receivership was terminated three months later

with the expectation that the board would “resume the operation

of a complete school system for 1966-67.” The return of the

schools to board control was “so that necessary plans for operating

the school system in 1966-67 may be made.” It was further noted

that “the dual school system has been abolished for 1966-67.”

Turner v. Goolsby, 255 F. Supp. 724, 734 (S. D. Ga. 1965; supp.

opinion 1966). The court clearly expected that the board was

prepared to administer an integrated system but the board has

not fulfilled that expectation. No board member has a child in

the public schools (A. 23, 47). Nor has the board made any

effective effort to induce a single white teacher or child back into

the system (A. 357-59). In short, with regard to the education

of their children, Taliaferro Negroes are in a position quite analo-

gous to a pre-Civil War characterization of slaves as persons who

were considered to be:

A subordinate and inferior class of beings, who had been

subjugated by the dominant race, and whether emancipated

or not, yet remained subject to their authority and had no

rights or privileges but such as those who held the power,

and the government might choose to grant them. Dred Scott

v. Sanford, 19 How. 399, 404-05, 60 U. S. 393, 404-405

(1857).

=

48

the schools (supra, pp. 12-14). In such circumstances, the

Georgia scheme for selecting school board members oper.

ates in this county to deprive appellants of rights guaran.

teed by the Constitution. Until the state provides a system

of selecting board members which does not unconstitution.

ally dilute the votes of Negroes, the district court is

obliged to fashion a remedy to ensure that those who con-

trol the school system fairly represent the interests of

Negroes.

Georgia’s Prohibition of Membership on County

Boards of Education to Non-Freeholders Violates the

Fourteenth Amendment.

By statute and constitutional provision, Georgia re.

stricts membership on those county boards of education

which are selected by a county grand jury to “five free.

holders”—persons who hold title real property in the

county,’ Ga. Code Ann. §2-6801, Art. VIII, §V, para. 1

of the Constitution of 1945;% Ga. Code Ann. §§32-902,

902.1.

The court below rejected appellants’ contention that by

prohibiting those who did not own real property from

school board membership Georgia had violated the Mqual

** A freehold is a generic term which describes “any estate . .

existing in, or arising from” real property, 28 Am. Jur. 2d, Estates

§8. As defined in Black’s Law Dictionary a freeholder is “one

having title to realty” (4th Ed. 1957) p. 793.

**The Georgia Constitution states:

The Grand Jury of each county shall select from the citizens

of their respective counties five freeholders, who shall con-

stitute the County Board of Education. Ga. Code Ann., §2

6801.

bn

49

Protection Clause of the Fourteenth Amendment. The

court did not decide what valid state interest, if any, this

prohibition served. It merely concluded that this unequal

treatment to non-freeholders did not amount to invidious

discrimination :

There was no evidence to indicate that such a qualifi-

cation resulted in any invidious discrimination against

any particular segment of the community, based on

race or otherwise (A. 403).

This language should not be understood as a finding by

the district court that appellants lack standing, for the

court granted, and appellees did not oppose, the inter-

vention of a non-freeholder, a father of six schoo] chil-

dren, who plainly possessed requisite standing to chal-

lenge a statute which prohibited him from serving on

the county school board, Bond vy. Vloyd, 385 U. 8S. 116

(1966); Baker vy. Carr, 369 U. S. 186 (1962). The district

court permitted intervention (A. 72, 73) for the express

purpose of conferring standing and as Judge Bell put it:

“.,.to make certain that the Court will reach the merits

of the claim that an application based on freeholders is

unconstitutional” (A. 370-71).

Numerous decisions of this Court, however, stand for

the substantive proposition apparently rejected by the

district court that the poor form a class protected by the

Equal Protection Clause against state legislation which

discriminates on the basis of wealth, and Harper vy. Vir-

ginia Board of Elections, 383 U. S. 663 (1966) makes

plain that the Equal Protection Clause prohibits discrimi-

natory treatment of the poor in the political arena.

*E.g., Griffin v. Illinois, 351 U. S. 12 (1956); Smith v. Ben-

nett, 365 U. S. 708 (1961).

— Ar.

50

It is also established that the right to seek office as well

as the right to vote may not be infringed on the basis of

invidious discrimination. Bond vy. Floyd, 385 U. S. 116

(1966); Anderson v. Martin, 375 U. S. 399, 401-402 (1964).

The “right to choose, secured by the Constitution,” United

States v. Classic, 313 U. S. 299, 315 (1943) surely encom.

passes not only the casting of ballots but the right to

appear on those ballots as a candidate, subject only to such

rational requirements for candidacy consistent with the

qual Protection Clause as the States may prescribe. Par.

ticipation in the electoral process necessarily includes the

right to seek office. In Bond v. Floyd, supra at 385 U. §.

130, Georgia conceded that “if a State Legislature excluded

a legislator on racial or other clearly unconstitutional

grounds, the federal (or state) judiciary would be justified

in testing the exclusion by federal constitutional stand-

ards.”

On its face, the Georgia freehold qualification for school

board membership operates as an unconstitutional denial

of equal protection against the poor and non-landholders:

For to repeat, wealth or fee paying has, in our view,

no relation to voting qualifications; the right to vote

is too precious, too fundamental to be so burdened or

conditioned. (Harper, supra, 383 U. 8S. at 670.)

In fact, the requirement that one be a freeholder is so much

more substantial than the $1.50 poll tax which the Court

struck down in Harper that it emphasizes the disfranchise-

ment in this case.** That Georgia’s constitutional and

°° Decisions in two recent cases construe Harper to compel the

demise of financial restraints on enjoyment of political rights.

Significantly, both cases dealt with the barrier involved in the in-

a

|

a a ee a ee ee ee ee

=e oe ok ee ak ae fee, eee 6 ee Se See ee 2 eee eee eee ee

—

dl

statutory limitation on the right to serve as a school

board member to “five freeholders” is in violation of con-

stitutional requirements is also supported by the prin-

ciple that the standards of the Equal Protection Clause

are the more exactingly applied where the franchise is

concerned. When the State attempts to restrict a funda-

mental right it can do so only on the showing of a “com-

pelling interest.” Sherbert v. Verner, 374 U. S. 398, 405

(1963); N. A. A.C. P. v. Button, 371 U.S. 415, 438 (1963) ;

West Virginia State Bd. of Educ. v. Barnette, 319 U. S.

stant case—the antiquated condition of a right on the ownership

of real property. In Pierce v. Ossining, 292 F. Supp. 113 (S. D.

N. Y. 1968) the property requirement struck down was a prereq-

uisite to voting in a town election. In Landes v. Town of Hemp-

stead, 231 N. E. 2d 120, 20 N. Y. 2d 417, 284 N. Y. S. 2d 417

(1967), the New York Court of Appeals overruled a 1937 decision

and rejected a property requirement as a limitation on the right

to hold office. The New York Court of Appeals found that “it is

impossible . . . to find any rational connection between qualifica-

tions for administering town affairs and ownership of real prop-

erty” (20 N. Y. 2d at 421).

Two other cases reach a different result. Cipriano v. City of

Houma, upheld a restriction that property taxpayers only vote

on a resolution authorizing issuance of utility revenue bonds, 286

F. Supp. 823 (E. D. La. 1968) probable jurisdiction noted 37

U.S. L. Week 3275 (Jan. 14, 1969) O. T. 1968, No. 705. Kramer v.

Union Free School District No. 15, O. T. 1968, No. 258, argued

January 6, 1969, upheld a requirement that voters in a school elec-

tion be either real property owners, their spouses, school district

lessees (but not their spouses) or parents or guardians of children

attending district schools, 282 F. Supp. 70 (E. D. N. Y. 1968) ; see

also 259 F. Supp. 164 (E. D. N. Y. 1966). While appellants be-

lieve the views of the dissenting judges in these two cases are

persuasive, these decisions in no way affect the question before

the Court here. In Kramer, instead of the broad restriction to

freeholders authorized by Georgia, New York law permitted par-

ents, guardians, and lessees to vote, as well as those who own

taxable real property and their spouses. In Houma, the vote did

not concern public schools but only the relatively narrow ques-

tion of whether to issue utility revenue bonds, a decision which

also was subject to approval of the generally elected municipal

government body.

ats 283 ay

OE, OE CEU Me per, cope at GS TE 66s ee

foo omatiety the requirement of] “oompeltinge piterent’ the

state dutit alenmemetoate afl ob the Potbow tage (1) ‘That

{lie hesttietiom iipared: tatiomathy celatern: foo Tega tininte

yovernmionmtal obpoetiven eampelt, C2) (hit the drenmett to

the publie at those objectives oubwerthe Che cirparenient

of the cometeQuttenmal caeht= ane that) C4) ta abbermative

Hedi tess subwetave of the eometetitronadl eat ane naval

nhle. See Amite vo Board of Begenty, 8h TIS) ose

CU, Creel vy Conmeetreut, UNE TS de CPG),

Vb ECP Maha, YEE ES ONS (CDG) Apthehens

Nooretarg ot State, BES EOS GOO CEIGD) Sherbert yy. Verner,

' ' yee

MY us aN

supra, Bdteds yw South Carola, vee Uy

cry NOt a Py Button, supra, wt dy Steelton

Tucker SAR TS ATO ASS (E900) s Thomas vo Collis

Ses POS Ste bso Cy NSelmenden y State, SON TE ST,

LL CLO89) Sa posnen on the Greaeold Case and the Right

Of Prreqeu, Gb Maelo dy. Hew Te Crea)

The Creeholder Limitation iin ne wiry eaipported: by eueh

a oustifien tion. ‘Phe pirpose of the provinion te not ey

pressed, but oun the nineteenth eentiury, When at) wae en

vetoed, ii owas thousht by many that only owners of real

property were suffierently concerned about government to

evereise the duties of office, Whatever the validity of this

conelusion inthe past, tas plan that today one’s interest

in, er -eapaetty for, pubhie affairs does not depend on

whether he as oa landlord or a tenant. As Judge Wem

stem has put it:

Some premises are no longer constitutionally per

missible and legal syllogisms whieh embody them

must be rejected. One constitutionally unacceptable

hypothesis is that people owning rights to real prop-

erty are more likely than citizens generally to exercise

fit

them vote responmbly Thos, a loenl poliey based on

fhe neeninplion that owners of property riyhte mre

particularly interested on eehool eleetions cannot

quetily denying the ight to vote ftocother moratl, snd

Mtelleetoatly quiatitiod nelulte who treet residence re

quirements Aramer vo Minion Bree Nehool Dil No

1h, VME Bap 70, BOOT DON V V9GH) Cliementingy

opinion)

In whort, (he iden Chat only persons whe hold real property

are enpoble of holding publi offies reflects an oheolete mand

repiiinted view of what constitutes equal protection

Harper Vo Virgen tate Hoard of Mlectione, eupra,

Landen vo Town of Nowth Mempotead, supra, ef MelLaugh

lim vy, Mlonida, STOW BWA, 190 01964)

Norenn the freeholder requirement be rationally jaetified

hy a denire to bint perviee on bonrds whieh wet tag rates

to thone who puy taxes, cee Slate on vel Mitchell v Meath,

WA Mo. 2G, Tas. Wo eb TOOL, 1004 (1999) even if one

maken the dubious aecumption that the puble interest on

elucation could be totally displaced by the taxpayer's in

terest on the tne of funds that onee were hie’ In Georgina,

the county seehool board haw no direet taxing power but

may only recommend a tax rate to courty suthorities (Ga

Code Ann. {32 011%, 1127) and the property which is

potentially subject to taxation for school purpowes i not

“Ownership of land has even leas rational relationship ty cual:

fications for the office of school board member than other offices

‘town supervisor, county cormistioner, ete) berause the who!

hoard in concerned with a delimited wet of concerns none of which

has any relation to property holding.

"It should be noted that neither of the two state policies whicr

Mr. Justice Black, dissenting, found would support the poll tax on

Harper, 383.U. 8S. at 674 are available to justify the freeholder re

quirement.

a —

D4

limited to that of individual freeholders, Ga, Code Ann,

§82-1116. Moreover, the Taliaferro school system raises

but a small proportion of funds raised by ad valoren

taxes ($39,000 out of a total budget of $267,611) (A. 49),

The overwhelming majority of the budget is received from

the state and federal governments,

Nor need Georgia limit board membership to five free.

holders to achieve even the questionable benefits one might

suppose for the freeholder requirement—as witnessed by

the fact that a non-freeholder may apparently be appointed

to a school board in those counties which have abandoned

the grand jury selection device, see mfra pp. taeca, At

any rate, other options are available to the state which do

not involve needless denial of participation ino organs of

government which critically affeet the publie welfare, I!

it is the voice of the freeholder which the state wishes to

have considered, school boards could be required to seek

the written opinion of one or more frecholders concerning

anticipated land purchases or transfers prior to making

any decision thereon, Or school boards might: be directed

by statute to obtain legal counsel concerning any tani

transactions. But any claimed benefits of the present free

holder requirement are clearly outweighed by the extent to

which parents of school children and other non-lande(

citizens generally are totally denied access to what may be

the most important unit of local government and_ most

available outlet for community political expression, Cf.

Kramer v. Union Free School Dist. No, 15, swpra, 282 ¥.

Supp. at 76-78 (dissenting opinion).

Nothing appellants urge detracts in the least from the

power of the states to assure that competent persons

administer the public schools. In Abington School District

cE

_—

55

y. Schempp, 374 U.S. 208 (1963) for example, this Court

recognized the special stake parents have in the proper

administration of their schools by granting them standing

to contest Unconstitutional practices taking place in them.

Georgia law does not, however, recopnize a proup with a

special concern for the schools by limiting board member

ship to frecholders; on the contrary, it vests membership

ina group With no such special concern, Where an interest

as Vital as the operation and management of the schools

is involved, a state violates the Mqual Protection Clause

by restricting control of its educational establishment to

those who own a particular class of property,

CONCLUSION

Wuekkvone, appellants pray that the judgment of the

court below be reversed in so far as it denies declaratory

and injunctive relief,

Respectfully submitted,

Jack GREENBERG

Micnann. Mevrsnin

10 Columbus Cirele

New York, New York

Howany Moore

Perer RinosKkove

85914 Hunter Street, N. W.

Atlanta, Georgia

Attorneys for Appellants

Norman J. CHACHKIN

Of Counsel