Wiggins v. Haynes Opinion

    IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

N o .  3 0 9 9 5  
Summary Calendar*

CHARLIE WIGGINS, CARSWELL DUGGAN, JR.,
ET AL.,

P laintif f s-Appellants,
versus

HARRIS HAYNES, GILBERT DEAN, JACK H. 
GARRETT, HERMAN LAYTON, M A R V I N  
HARTLEY and CHARLES TYSON, as members of 
the Jury Commission of Washington County, 

Georgia, ET AL,
Defendants-Appellees,

Appeal from the United States District Court for the 
Middle District of Georgia

(March 12, 1971)

Before WISDOM, COLEMAN and SIMPSON, 
Circuit Judges.

*Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty 
Company of New Yorkf et al., 5 Cir. 1970, 431 F.2d 409, Part I.



2 WIGGINS, ET AL v. HAYNES, ET AL

PER CURIAM: Plaintiffs-appellants brought this
action in the district court alleging racial discrimina­
tion in the composition of the grand and traverse jury 
lists for Washington County, Georgia, and in the ab­
sence of Negro jury commissioners for the county. The 
district court, noting changes made by the county in 
the selection of jury commissioners and compilation 
of jury lists subsequent to the filing of the suit but 
prior to the ruling of the court, concluded in an opinion 
dated September 2, 1970, that the defendants had not 
discriminated on the basis of race. (See Appendix A). 
Accordingly, the district court denied the prayers for 
relief. We have examined the briefs and the record 
and have determined that the evidence supports the 
findings and conclusions of the district court.

AFFIRMED.

APPENDIX A 

(Style and number omitted)

BOTTLE, Chief Judge:

In this class action the plaintiffs attack the jury lists 
and the method of selecting jurors and the method 
of naming jury commissioners in Washington County, 
Georgia. The five first named defendants were jury 
commissioners at the time the complaint was filed. 
Since then the Judge of the Superior Court has named 
a new commission of six members and they have been 
substituted as parties defendants as follows: Harris



WIGGINS, ET AL v. HAYNES, ET AL 3

Haynes, Gilbert Dean, Jack H. Garrett, Herman Lay- 
ton, Marvin Hartley and Charles Tyson.

Count One attacks specifically the jury lists and al­
leges that the failure of the defendants to enroll plain­
tiffs and the members of their class on the jury lists 
“is the result of the deliberate and systematic exclu­
sion and limitation by defendants of the number of 
Negro citizens resident in Washington County who are 
called for service on juries.”

Count Two attacks specifically the composition of 
the jury commission and alleges that plaintiffs and 
their class have never been named to the commission 
“because of the pattern and practice of racial exclu­
sion and segregation of blacks in Washington County, 
Georgia, including the entire process of jury selec­
tion,” and alleges further that within memory the 
Judges of the Superior Court of Washington County, 
Georgia have never appointed a black person to serve 
on the commission.

The prayers are, in substance, that the jury com­
mission be dissolved; that the Superior Court Judge 
be required to appoint plaintiffs and members of their 
class as members of a new jury commission; and that 
the present jury lists be dissolved and new jury lists 
be compiled.

Shortly after this suit was filed the Supreme Court
decided Turner v. F ouche,____U. S ._____ , 24 L. ed
2d 567 (1970), which disposes of Count Two of the com­
plaint by holding that a mere failure to appoint black 
commissioners in the past does not establish discrim-



4 WIGGINS, ET AL v. HAYNES, ET AL

illation and would certainly constitute no justification 
for federal courts’ instructing a state court to make 
such appointments even assuming that under any cir­
cumstances a state court judge’s discretion could be 
so controlled. The evidence in this case fails to show 
any intentional discrimination in the matter of appoint­
ment of jury commissioners. Indeed, it so happens that 
in appointing a new commission shortly after this suit 
was filed the Judge of the Superior Court named to 
that commission two black members and four white 
members.

The pertinent facts with respect to this jury selection 
process are as follows: According to the 1960 census 
blacks constitute 49.5 per cent of the adult population 
of the county. After the filing of this suit the Judge 
of the Superior Court inquired as to the number 
of names on the registered voters’ list used in the last 
preceding general election, this being the list which 
commissioners are required to use in compiling jury 
lists, Ga. Code Ann. 59-106, and was informed that this 
list contained 3,417 black voters and 5,789 white voters, 
the percentage of black being 37. He learned also that 
in the last jury revision the old list of names obtained 
from the tax digest had been retained and simply sup­
plemented by new names from the registered voters’ 
list, and he knew therefore that under the holding of 
Whitus v. Georgia, 385 U. S. 545, 17 L. ed 2d 599 (1967) 
a new jury list had to be compiled. Accordingly, he 
appointed the new commission and this commission 
immediately went to work in compiling a new list. They 
held six or eight meetings as a body and worked on 
their task on the following days: January 13, 29, Feb­



WIGGINS, ET AL v. HAYNES, ET AL 5

ruary 16, 17, 18, 20, 23, 24, 25, 27, March 2, 3, 4, 6, 9, 10, 
and 17, 1970. At the beginning of their work they were 
instructed by the Judge of the Superior Court who 
read to them the appropriate statutes including Ga. 
Code Ann. 59-106, which reads as follows:

“Revision of jury lists. Selection of Grand 
and traverse jurors: ■— At least biennially 
or, if the judge of the superior court shall di­
rect, at least annually, on the first Monday in 
August, or within 60 days thereafter, the board 
of jury commissioners shall compile and main­
tain and revise a jury list of intelligent and up­
right citizens of the county to serve as jurors.
In composing such list the commissioners shall 
select a fairly representative cross-section of 
the intelligent and upright citizens of the coun­
ty from the official registered voters’ list 
which was used in the last preceding general 
election. 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 coun­
ty, they shall supplement such list by going 
out into the county and personally acquainting 
themselves with other citizens of the county, 
including intelligent and upright citizens of any 
significantly identifiable group in the county 
which may not be fairly representative there­
on.

“After selecting the citizens to serve as jur­
ors, the jury commissioners shall select from 
the jury list a sufficient number of the most ex­



6 WIGGINS, ET AL v. HAYNES, ET AL

perienced, intelligent and upright citizens, not 
exceeding two-fifths of the whole number, to 
serve as grand jurors. The entire number first 
selected, including those afterwards selected 
as grand jurors, shall constitute the body of 
traverse jurors for the county, except as other­
wise provided herein, and no new names shall 
be added until those names originally selected 
have been completely exhausted, except when 
a name which has already been drawn for the 
same term as a grand juror shall also be drawn 
as a traverse juror, such name shall be re­
turned to the box and another drawn in its 
stead.”

He explained to them that in the selection of jurors 
they were not restricted to the voters’ list but could 
use such references as telephone books and R.E.A. 
lists. He explained also that there were some Men- 
nonites in the county who, according to his informa­
tion, did not register to vote. He provided for each 
of the six commissioners a complete copy of the old 
voters’ list. He did not pass on to them his informa­
tion as to the white and black ratio on the voters’ lists. 
These lists incidentally contained no racial identifica­
tion or any other identification with respect to any 
voter, simply his or her name and the Georgia militia 
district in which he or she resided, there being 21 of 
such districts. Bach district was assigned to one or 
more commissioners who studied the voters’ list with 
respect to said district and prepared and submitted 
to the entire commission proposed names from such 
d i s t r i c t .  The Commissioners confined themselves



WIGGINS, ET AL v. HAYNES, ET AL 7

pretty largely to the voters’ list although some names, 
perhaps a dozen about equally white and black, were 
selected from other sources. On one occasion the com­
missioners inquired of the Judge whether or not they 
were to work on a percentage basis as to white and 
black and the statute was again read to them, Ga. 
Code Ann. 59-106, and it was observed that the statute 
does not require percentages. They were told that they 
were to work for a fairly representative cross-section 
of the intelligent and upright citizens of the county. 
They undertook to do the best job they could under 
the mandate of this code section. They were told by 
the Judge to comprise a list of approximately 800 jur­
ors which was estimated to be sufficient to last until 
or through August, 1971, when the next revision is con­
templated. When the commission finished its work they 
had comprised a list of traverse jurors, 562 white and 
206 black. From that traverse list they proceeded in 
accordance with the code section to compile a grand 
jury list of 221 white and 70 black. Thus on the traverse 
list blacks represent 26% and on the grand jury list 
they represent 24%. In compiling this jury list the com­
missioners were not concerned primarily, if at all, with 
racial percentages. Indeed, they did not know the per­
centage of whites and blacks on the list when it was 
completed and did not ascertain those figures until 
counsel for the defendants after a pre-trial conference 
in this case called upon them for that information. 
Then, for the first time, it was computed with the re­
sults above stated — traverse jury 26% black, grand 
jury 24% black.

Significantly, some jurors, both traverse and grand,



8 WIGGINS, ET AL v. HAYNES, ET AL

were obtained from each of the 21 districts. The per­
centages of blacks per district range from a high of 
55% in Strange District to a low of 0% in a few districts 
in which there are no black residents. The largest dis­
trict is Sandersville which furnished 176 white and 96 
black traverse jurors, the black percentage here being 
36%.

If there were no evidence in this case except the 
1960 census figures indicating a black population avail­
ability of 49.5% and a traverse jury black representa­
tion of 26% one might readily suspect discrimination. 
In view of all the facts as above found, however, this 
court finds as a fact that there was no racial discrim­
ination. It has long been settled that “neither the jury 
roll nor the venire need be a perfect mirror of the 
community or accurately reflect the proportionate 
strength of every identifiable group.” Swain v. Ala­
bama, 380 U. S. 202, 208, 13 L. ed 2d 759, 766 (1965). 
It is, indeed, “impossible to meet a requirement of 
proportionate representation.” Idem. In Carter v.
Greene County, ____  U. S. ____ , 24 L. ed 2d 549, 564,
Mr. Justice Douglas, dissenting in part, said: “Jury 
selection is largely by chance; . . . .  The law only re­
quires that the panel not be purposefully unrepresen­
tative” and quoted with approval a Washington Post 
editorial in part as follows: “Quotas are understand­
ably abhorrent to those seeking to do away with dis­
crimination.” Thus the Superior Court Judge in the 
case at bar correctly advised the commissioners that 
they were not required to work on a percentage basis 
and that they were, in the words of the statute, to “se­
lect a fairly representative cross-section of the intelli­



WIGGINS, ET AL v. HAYNES, ET AL 9

gent and upright citizens of the county.” The statute’s 
requirement that citizens be “intelligent and upright 
citizens” in order to be eligible for jury service was 
sanctioned and approved by the Supreme Court in Car­
ter v. Greene County, supra. See also Turner v. 
Fouche, supra. The evidence fails to disclose that black 
citizens were in any manner discriminated against by 
the commissioners in the application of these require­
ments.

Accordingly, all prayers of the complaint are denied 
and counsel for the defendants may prepare an appro­
priate judgment and present the same after affording 
counsel for the plaintiffs an opportunity for suggestions 
as to form.

This 2nd day of September, 1970.
(Signed) W. A. BOOTLE 

CHIEF JUDGE

This is to certify that I have this date mailed a copy 
of the within to Mr. Thomas M. Jackson, 655 New 
Street, Macon, Go. 31201; to Mr. Jack Greenberg, Mr. 
Norman Amaker, 10 Columbus Circle, New York, New 
York 10019; to Mr. Howard Moore, Jr., Mr. Peter E. 
Rindskopf, Suite 1154 Citizens Trust Company Bank 
Bldg., Atlanta, Ga. 30314; to Mr. Denmark Groover, 
Jr., P. O. Box 755, Macon, Ga. 31202;

This 2nd day of September, 1970.

(Signed) DOROTHY F. MOTES 
Dorothy F. Motes 
Deputy Clerk

Adm. Office, U.S. Courts—Scofields’ Quality Printers, Inc., N. O., La.