Appellants Brief — Taylor v. Louisiana

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MAY °° jS74

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IN THE i

Supreme Court of the United States

OCTOBER TERM, 1973

No. 73-5744

BILLY J. TAYLOR,

Appellant,

STATE OF LOUISIANA,

Appellee.

APPEAL FROM THE SUPREME COURT

OF THE STATE OF LOUISIANA

BRIEF FOR APPELLANT

WILLIAM McM. KING

611 E. Boston Street

P.O. Box 1029

Covington, Louisiana 70433

Attorney for Appellant

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TABLE OF CONTENTS

; Page

OPINION BELOW 00. 0. cc ee eee l

PERE BE oh Ah eT ew ee HERE EN ]

STATE. CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ..................0.. :

QUESTIONS PRESENTED noi ci 6c Sec tenes 2

STATEMENT OF THE CASE ~.. . 0 0c ci we cece 3 |

SUMMARY OF ARGUMENT .............6........ 3

ARGUMENT:

I. Article 402 of the Louisiana Code of

Criminal Procedure and Section 41 of

Article 7 of the Louisiana Constitution

Systematically Excludes Women as a Class

OU FOE BO oo ech e wire ae eas Sawd oem 4

I]. The Exclusion of Women From Jury Duty

Has Violated Appellant’s Rights Guaranteed

by the Sixth and Fourteenth Amendments ........ 5

III. Louisiana Can Show No Compelling Public

Interest For the Automatic Exemption .......... 8

IV. The Louisiana Statutory Exemption Dis-

criminates Solely on the Basis of Sex

Without Regard to Fitness to Serve On

ee ere re ee ae ee hare eee re ae ee 10

CE CRE, oo a ee A eae Rae a reek eas 11

TABLE OF AUTHORITIES

Cases:

Alexander v. Louisiana, 405 U.S. 625, 643 (1971)

icnetins COI a5 kc in eve ee aes 6 eka es 10

Ballard v. United States, 329 U.S. 187 (1946) .:....... a, 6-2

Carter v. Jury Commission, 396 U.S. 320 (1970) .......... 7

Duncan v. Louisiana, 391 U.S. 145 (1968) ......... 4,6, 7,9

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Page

Frontiero v. Richardson, 411 U.S. 677 (1973) 2.2... ... 4,11

Hoyt v. Florida, 368 U.S. 57(1961) ......... 3, 4, 8, 9, 10

Peters v. Kiff. 407 U.S. 493 (1972) ........... 4, 5, 6, 7, 8

Reed v. Reed, 404 U.S. 71 (1971) 2... ........20050. 4,11

San Antonio Independent School District v.

Rodriguez, 411 U.S. 1, 17 (1973) ...........008.. 4,9

Smith v. Texas, 311 U.S. 128, 139 (1941) ............. 5

Thiel v. Southern Pacific Co., 328 U.S. 217 (1946)... .4, 8

Williams v. Florida, 399 U.S. 78, 100 (1970) ........... 7

Constitutions:

Sixth amendment to the Constitution of the United

ee Da ga Wie 8h a & Oe A Oe 2-5, 7, 11

Fourteenth amendment to the Constitution of the

SS NE cis Ps Cece eh Re ETRE 2-5, 7, 11

1a. TOE: AE. VE. GAL nck ei ewes hse ieee ne 2, 4, 11

Federal Statutes:

6 BARE em to Ie) Dae ar oe 2

Ah LOE. aoe ee eK kas ERO OO 10

State Statutes:

Ls. Code of Crim: Proc. Art: 402 = fre bi ca ewes 2, 4\12

\

Other Authorities: ‘

Bureau. of -the Census, 1970 Census of the

Population, General Social and Economic \

Characteristics, Final Report PC(1)-C20- Louisi-

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“ seine ae pammemerienteanatamanaamammammmaamainiel Pkt SP A OEE IIA AB TIS «

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Hayghe, Labor Force Activity of Married Women,

U.S. Department of Labor, Monthly Labor

Review, Table 4 (ApH 1973) c426254edcaks ee 9

Holton, Administrator, Commission on the Status of

. Women, State Department of Labor of

Louisiana, Women Workers in Louisiana, 1970

IG TOT) on ek eee eS bee ae eS 9

Library of Congress Legislative Reference Service.

American Law Division, June 10, 1970, report

to the Senate. in Hearings on S.J. Res. 61

Before the Subcomm. on Constitutional Amend-

ments of the Senate Comm. on the Judiciary,

Sist Cong., 24 Ses. 7 25:27 0190) aed x oss eas 10

Women’s Bureau, U.S. Department of Labor,

Highlights of Women’s Employment and

Education; Women in the Labor Force (1973) ........ 9

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Tl leanne ae SiL NS ERNE NEA NA RAETPRREE EEA TS: ANN MED CGR ance flea

IN THE

Supreme Court of the United States |

OCTOBER TERM, 1973

No. 73-5744

BILLY J. TAYLOR,

Appellant,

STATE OF LOUISIANA,

, Appellee.

APPEAL FROM THE SUPREME COURT

OF THE STATE OF LOUISIANA

BRIEF FOR APPELLANT

4

OPINION BELOW

The opinion of the Supreme Court of the State of |

Louisiana is reported at 282 So. 2d 491 (1973).

JURISDICTION

On September 5, 1973 the Supreme Court of the

State of Louisiana entered the judgment which is the

subject of this appeal. Notice of Appeal to the Supreme.

Court of the United States was filed on November 8.

1973. The Jurisdictional Statement was filed on

2

November 13, 1973 and appellee’s Motion to Dismiss

was filed on January 25, 1974. Probable jurisdiction

was noted on February 19, 1974. Jurisdiction to review

this decision on appeal is conferred by 28 U.S.C.

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STATE CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

La. Const. Art. VII, §41

The Legislature shall provide for the election and

drawing of competent and intelligent jurors for the trial

of civil and criminal cases; provided. however, that no

woman shall be drawn for jury service unless she shall

have previously filed with the clerk of the District

Court a written declaration of her desire to be subject

to such service. ...

La. Code of Criminal Procedure, Art. 402

A woman shall not be selected for jury service unless

she has previously filed with the clerk of court. of the

parish in which she resides a written declaration of her

desire to be subject to jury service.

QUESTIONS PRESENTED

1. Whether La. Const. Art. VII, 841 and La. Code

of Criminal Procedure, Art. 402 in providing an

automatic. exemption for all women. from jury service

violate the Sixth and Fourteenth Amendments of the

- United States Constitution?

2. Whether appellant, a male, has been deprived of

an impartial jury and fair. trial within the guarantees of

the Sixth and Fourteenth Amendments of the United

States Constitutiun by reason of the systematic

exclusion of women from the jury selection process

governed by~La. Const. Art. VII, §41 and La. Code of

Criminal Procedure, Art. 402?

Fe ATTEUD SoS eMC SATS S

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STATEMENT OF THE CASE

The appellant, a male, was convicted of aggravated

kidnapping in 1972 by a jury in St. Tammany Parish,

Louisiana selected from an all male 175 member jury

venire. (App. p. 47). He was initially sentenced to

death, but a motion in arrest of judgment was

ultimately sustained by the state Supreme Court and

the sentence was changed to life imprisonment. (App.

p. 18).

A pre-trial motion to quash the petit jury venire was

ied on the grounds that the systematic exclusion of

women violated federal constitutional guarantees of a

fair trial, due process and equal protection of the laws.

(App. p. 2). The motion was denied and on appeal of

appellant’s conviction the same objection was urged by

bill of exception and assignment of error. (App. p. 9

45, p. 16 910). The Louisiana Supreme Court affirmed

the conviction. (App. p. 18). A dissenting opinion

would have found that the automatic jury duty

exemption for women provided by the state constitu-

tion and statute violates the Sixth and Fourteenth

Amendments of the United States Constitution. (App.

p. 20). The majority opinion held that ‘“‘our law, which

permits the calling for jury service only those women

who have filed with the clerk of court a written

deciaration of their desire to be subject to jury service

is neither irrational nor’ discriminatory’, and cited the

assumption in Hoyt v. Florida, 368 U.S. 57 (1961) that

“woman is still regarded as the center of home and

family life.” (App. p. 17).

SUMMARY OF ARGUMENT

Louisiana laws prohibiting jury duty by women

except to those who pre-register their desire to

volunteer in effect systematically exclude women as a

class and discernible segment of society. Ballard vy.

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United States, 329 U.S. 187 (1946). As a. result

appellant was deprived of his fundamental constitu-

tional right to be tried by a jury selected from a

representative cross section of the community, as

guaranteed by the Sixth Amendment and the Due

Process Clause of the Fourteenth Amendment. No other

specific injury or harm need be shown. Duncan vy.

Louisiana, 391 U.S. 145 (1968): Peters vy. Kiff. 407

U.S. 493 (1972).

The legal and factual considerations which in 1961

prompted the Court in Hoyt v. Florida, supra, 368 U.S.

57 (1961), to uphold a similar statute are no longer

relevant. Reed v. Reed, 404 U.S. 71 (1971): Frontiero

vy. Richardson, 411 U.S. 677 (1973). Louisiana’s

statutory exemption for women cannot withstand the

strict scrutiny required when it infringes appellant's

fundamental constitutional right to be tried by an

impartially chosen jury. San Antonio Independant

School District v. Rodriguez, 411 U.S. 1, 17 (1973), or

when it discriminates between the sexes. Reed and

Frontiero, supra. Louisiana can show no compelling

public interest for the exemption which would justify

the violation of basic constitutional rights. Thiel v.

Southern Pacific Co., 328 U.S. 217 (1946).

ARGUMENT

I.

ARTICLE 402 OF THE LOUISIANA CODE OF

CRIMINAL PROCEDURE AND SECTION 41 OF

ARTICLE 7 OF THE LOUISIANA CONSTITUTION

SYSTEMATICALLY EXCLUDE WOMEN AS A

CLASS FROM JURY SERVICE.

Clearly, the automatic exemption granted to all

women operates to exclude them from jury duty.

Appellant was tried before a jury selected from a venire

numbering 175, not one of whom was a woman (App.

p. 47). This happened in a judicial district where 53% —

of the population of persons eligible for jury service is

female. Not over 10% of the persons in the jury wheel

of the entire parish of St. Tammany are female. In the

period December 8, 1971-December 4, 1972, only 13

women were included in a total of 1850 names drawn

for petit jury terms. In Washington Parish, which

together with St. Tammany comprise the Twenty-

Second Judicial District, not more than two women

have ever been known to volunteer for jury service and

only once has a woman been actually included in a

petit jury venire. (Stipulation of Facts, Louisiana y.

Healy, No. 73-759, App. p. 83. 84).

THE EXCLUSION OF WOMEN FROM JURY DUTY

HAS VIOLATED APPELLANT'S RIGHTS GUARAN-

TEED BY THE SIXTH AND ~FOURTEENTH

AMENDMENTS.

Due process demands that a jury be selected from a

representative cross section of the community, Smith vy.

Texas, 311 U.S. 128, 139 (1941); Peters v. Kiff, supra,

407 U.S. 493 (1972). and the exclusion of a discernible

class from jury service destroys the possibility that the

jury will reflect the required cross section of the

community, 407 U.S. at 500.

“When any large and identifiable segment of the

community is excluded from jury service, the

effect is to remove from the jury room qualities of

human nature and varieties of human experience,

the range of which is unknown and _ perhaps

unknowable. It is not necessary to assume that the

excluded group will consistently vote as a class in

order to conclude, as we do, that their exclusion

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deprives the jury of a perspective on human events

that may have unsuspected importance in any case

that may be presented.”’ 407 U.S. at 503, 504.

The Court has previously recognized women as a

discernible class, whose systematic exclusion eliminates

the possibility of an impartially selected jury. Ballard v.

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

“The truth is that the two sexes are not fungible:

a community made up exclusively of one is

different from a community composed of both:

the subtle interplay of influence one on the other

is among the imponderables.... A “distinct

quality is lost if either sex is excluded.” 329 U.S.

at 193, 194. ‘

In Peters, supra, the Court was concerned with the

standing of a white petitioner to attack a state court

jury on the ground that the systematic exclusion of

blacks denied him due process. The trial and conviction

took place prior to Duncan y. Louisiana, 391 U.S. 145

(1968). The majority opinion in Peters acknowledged

his standing to complain, observing that “‘the exclusion

of a discernible class from jury service injures not only

those defendants who belong to the excluded class, but

other defendants as well, in that it destroys the

possibility that the jury will reflect a representative

cross section of the community.” 407 U.S. at 500. Thie

concurring opinion agreed to his standing because of a

specific statutory prohibrtion against race discrimina-

tion. 407 U.S. at 503, 504. The dissenting opinion

would have required a demonstration by the petitioner

of prejudice to him or a basis for presuming prejudice

by establishing that his conviction resulted from the

exclusion of blacks. 407 U.S. at 507.

The majority opinion in Peters believed that there

would have been no question whatever of the

petitioner's standing to challenge the exclusion of

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blacks had the trial and conviction been “‘post-Duncan.”

407 U.S. at 500. Indeed the dissenting opinion agreed

“that juries, should not be deprived of the insights of

the various segments of the community, for the

‘common-sense judgment of a jury’ referred to in

Duncan v. Louisiana, 391 U.S. 145, 156, 20 L.Ed 2d

491, 500, 88 S. Ct. 1444 (1968), is surely enriched

when all voices can be heard. But we are not here

concerned with the essential attributes of trial by jury.

In fact, since petitioner was tried two years before this

Court’s decision in Duncan, there’ was no constitutional

requirement that he be tried before a jury at all.” 407

U.S. at 510, Sil.

Appellant was tried and convicted in 1972, sub-

sequent to Duncan and the Court is “here concerned

with the essential attributes of trial by jury.” See

Williams v. Florida, 399 U.S. 78, 100 (1970) and Carter

y. Jury Commission, 396 U.S. 320 (1970). When

Duncan made the Sixth Amendment applicable to the

states via the Fourteenth, it also made relevant to state

court jury proceedings the following observation by the

Court in Ballard vy. United States, supra:

“Reversible error does not depend ona showing of

prejudice in an individual case. The evil lies in the

admitted exclusion of an eligible class or group in

the community in disregard of the prescribed

standards of jury selection....The injury is not

limited to the defendant there is injury to the

jury system, to the law as an institution, to the

community at large. and to the democratic ideal

reflected in the processes~of our courts.” 329 U.S.

at 195. fe

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LOUISIANA CAN SHOW NO COMPELLING PUBLIC

INTEREST FOR THE AUTOMATIC EXEMPTION.

In Peters v. Kiff, supra, the majority opinion revealed

that:

“It is of .course a separate question whether his

challenge would prevail, ie.. whether the exclusion

might be found to have sufficient justification. See

Rawlins v. Georgia. 201 U.S. 638. 640, 50 L. Ed

899, 900, 26 S. Ct. 560 (1906) holding that a

state may exclude certain occupational categories

from jury service ‘on the bona fide ground that it

is for the good of the community that their

regular work should not be interrupted.” We have

no occasion here to consider what interests might

justify an exclusion, or what standard should be

applied, since the only question in this case is not

the validity of an exclusion but simply standing to

challenge it.” 407 U.S. at 510, footnote 10.

A post-Duncan automatic jury duty exemption for all

women in state courts can no more be justified than

the blanket exemption granted to all daily wage earners

in Thiel v. Southern Pacific Co.. supra, 328 U.S. 217

(1946). P

In Thiel the Court reasoned that “ta Federal judge

would be justified in excusing a daily wage earner for

whom jury service would entail an undue financial

hardship. But that fact cannot support the complete

exclusion of all daily wage earners regardless of whether

‘there is actual hardship involved.”” 328 U.S. at 224. The

Court! further stressed that jury service is a duty as well

as a privilege and that a blanket exclusion of all daily

wage earners weakens the institution of trial by jury.

Appellee relies entirely’ on this Court’s opinion in

Hovt vy. Florida, supra 368 U.S: 57 (1961), which

upheld a similar statutory exemption. ‘However the

A BIO VO ND Hh

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sands of time have shifted beneath the foundation of

Hovt. Its legal and factual considerations are no longer

relevant.

Legally, “strict scrunity”’ of the statutory exemption

is now required rather than the “minimum rationality”

test employed by the Court in Hovr, because by the

exemption appellant has been deprived of a funda-

mental constitutional right, Duncart vy. Louisiana, supra

391 U.S. 145 (1968): San Antonio Independant School

District vy. Rodriguez. supra, 411 U.S. 1 (1973).

Factually, the exemption can no longer be justified

by the assumption in Hoy? that women are “the center

of home and family life.” Only a portion of women

today fit that description. The percentage of women in

the labor force has rapidly grown so that by the end of

1972 over 33 million women were 4acluded and 42% of

these were permanent, full time workers. 58.5% of

women .workers were married and living with their

husbands. Women’s Bureau, U.S. Department of Labor.

Highlights of Women’s Employment and Education.

Women in The Labor Force. 26.9% of mothers with

children under three years of age: 36.1% with children

3-5 years of age: $0.2 with children 6-17 years of age

were in the labor force. Havehe. Labor Force Activity

of Married Women, U.S. Department of Labor, Monthly

Labor Review, Table 4° at 34 (April 1973) In

Louisiana, the statistics generally reflect those for the

nation. Bureau of the Census, 1970) Census of

Population, General Social and) Economic Character-

istics, Final Report PC (1) - C - 20 Louisiana 195. The

same source reveals that in 1970) 37% of the mothers

with children under 18 were in the labor force and 59%

of the total adult female population had no children

under the age of 18. Over half of all Louisiana women

in the labor force 25 to 59 years old hold permanent

“full time jobs. Holton, Administrator, Commission on

the Status of Women, State Department of Labor of

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_ Louisiana Women Workers in Louisiana, 1970 (July

1972).

Louisiana is the only state to retain an automatic,

volunteers only, exemption for women. Library of

Congress Legislative Reference Service, American Law

Division, June 10, 1970 report to the Senate, in

Hearing on S. J. Res 61 Before the Subcomm. on

Constitutional amendments of the Senate Comm. on

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

Moreover, the exemption does not extend to the federal

courts in Louisiana. See 28 U.S.C, §1862. Appellee

cannot responsibly argue that it would ‘place too great

an administrative burden on the courts to call women

for jury duty.

s IV.

THE LOUISIANA STATUTORY EXEMPTION DIS-

CRIMINATES SOLELY ON THE BASIS OF SEX

WITHOUT REGARD TO FITNESS TO SERVE ON

JURIES >

Appellee, relying upon Hoyt vy. Florida, supra, 368

U.S. 57 (1961), argues that the general exemption for

women does not purport to exclude women from jury

service, “but rather accords them the privilege to serve

without imposing the duty to do_ so.” (Motion to

Dismiss, p. 2). But men are not accorded the same

“privilege” to file with the clerk of court a written

declaration of their desire to serve.

Appellant has shown above that statistically the

automatic exemption is tantamount to automatic

exclusion. For no one can be expected to volunteer for

the onerous task of jury service. Alexander v. Louisiana,

405 U.S. 625, 643, (Concurring Opinion) (1971).

. Since Hovt the Court has adopted a different

standard in examining laws or regulations which

SEAR NR ARNE

discriminate solely on the basis of sex. Reed v. Reed,

supra 404 U.S. 71 (1971); Frontiero v. Richardson,

supra, 411 U.S. 677 (1973). No longer may’ a statute

constitutionally draw a sharp line between the sexes

solely for administrative convenience, and no longer will

the Court permit a distinction based upon assumptions

that women are the center of home and family life and

that men alone are expected to bear the heat of civic,

political and commercial activity.

By a discrimination based solely on sex, without

regard to fitness to serve, the automatic exemption

granted to women by the Louisiana constitution and

statute deprived appellant of a jury selected from a

representative cross section of the community in

violation of the Sixth and Fourteenth Amendments.

CONCLUSION =

The opinion of the Supreme Court of the State of

Louisiana affirming appellant’s conviction and _ up-

holding the constitutionality of La. Const. Art. VII §41

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and La. Code of Crim. Proc., Art. 402 should be

reversed, and his conviction and_ sentence to life

imprisonment should be annulled and set aside.

Respectfully submitted,

WILLIAM McM. KING

611 E. Boston Street

Covington, La. 70433

(P.O. Box 1029)

Attorney for Appellant

May, 1974

Attorney for appellant gratefully acknowledges the assistance

given in the preparation of this: brief by the students of the

Leyola University of New Orleans School of Law including: E.

Bohm, Darryl Casanueva, J. Goldberg, P. Grossman, Deborah

Gray, Katherine Hart, L. Landry, Rod McFaull, Edward Mullen,

Patrick O’Keefe and Kathleen M. Butler, Coordinator.

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