Taylor v. Louisiana Petition and Briefs

    The Supreme Court 
of the United States

Billy J. Taylor
versus

State of Louisiana

Petition and Briefs

Law Reprints
Criminal Law Series vol. 6, no. 4
1974/1975 Term



IN THE

SUPREME COURT OF UNITED STATES OF AMERICA 
OCTOBER TERM, 1973

BILLY J. TAYLOR,

Petitioner
VERSUS

STATE OF LOUISIANA,
Respondent

JURISDICTIONAL STATEMENT

(a) State of Louisiana v. Billy J. Taylor, 282 So. 2d 491 
(1973).

(b) (i) Appeal from the final judgment of the Supreme Court
of the State of Louisiana affirming the conviction 
and sentence to life imprisonment of Billy J. Tay­
lor for the crime of aggravated kidnapping (LSA-
R. S. 14:44).

(ii) Date of original judgment -- January 15, 1973.
Date of judgment on rehearing —  August 20, 1973. 
Date of order refusing second application for 
rehearing -- September 6, 1973.
Date of entry of judgment -- September 5, 1973.
Date notice of appeal filed -- November 8, 1973.

(iii) Jurisdiction of this appeal is conferred by 28 
U.S.C. Sec. 1257 (2).

(iv) Cases sustaining jurisdiction -- Peters v. Kiff,
407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2nd 83; 
Carter v. Jury Com'r. 396 U.S. 320, 90 S. Ct. 518, 
24 L. Ed. 2d 549; Smith v. Texas, 311 U.S. 128, 61
S. Ct. 164, 85 L. Ed. 84; Glasser v. United States. 
315 U.S. 60, 62 S.Ct. 457, 3TFU.S. 60; ThieT~v7~ 
Southern Pacific. 328 U.S. 217, 66 S.Ct. 984, 220 
L. Ed. 1181, 166 A.L.R. 1412: Williams v. Florida. 
399 U.S. 78, 90 S.Ct. 1893, 26 L. Ed 2d446; 
Witherspoon v. Illinois. 391 U.S. 510, 88 S.Ct.
1770, 20 L.Ed. 2d 776; Ballard v. United States.
329 U.S. 187, 67 S.Ct. 261, 91 L. Ed.' 181;_ 
Alexander v. Louisiana. 31 L. Ed. 2d 536.



(v) West's LSA Code of Criminal Procedure, Article 
4021; Vol. 1, page 324: "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."
West's LSA Constitution, Article 7, Section 41,
Vol. 2, page 382: "The Legislature shall provide 
for the election and drawing of competent and in­
telligent jurors for the trial of civil and crimin­
al cases; provided, however, that no woman shall be 
drawn for jury service unless she shall have pre­
viously filed with the Clerk of the District Court 
a written declaration of her desire to be subject 
to such service. All cases in which the punishment 
may not be at hard labor shall be tried by a jury 
of five, all of whom must concur to render a ver­
dict; cases, in which the punishment is necessarily 
at hard labor, by a jury of twelve, nine of whom 
must concur to render a verdict; cases in which the 
punishment may be capital, by a jury of twelve, all 
of whom must concur to render a verdict."

The question presented by the appeal is:
1) Whether Louisiana Code of Criminal Procedure 

Article 402 and Louisiana Constitution Article 7, 
Section 41, which exempt women from jury service 
violates the Sixth and Fourteenth Amendments to 
the United States Constitution.

2) Has appellant been deprived of a fair trial within 
the guarantees of the Sixth and Fourteenth Amend­
ments to the United States Constitution by reason 
of the systematic exclusion of women from the jury 
(as shown by the all-male jury venire list) under 
the provisions of Louisiana Code of Criminal Proce­
dure Article 402 and Louisiana Constitution Article 
7, Section 41';

The appellant was convicted of aggravated kidnapping 
(which included aggravated rape as part of the evidence 
introduced) by an all male jury selected from an all 
male jury venire. He was initially sentenced to death, 
but ultimately to life imprisonment. A motion to quash 
the jury venire was initially filed prior to the commence­
ment of trial on the grounds that the systematic exclu­
sion of women from the jury under the provisions of



Louisiana Code of Criminal Procedure Article 402 and 
Louisiana Constitution Article 7, Section 41 was viola­
tive of the United States Constitutional guarantees of a 
fair trial and due process. This motion to quash was 
overruled by the Trial Judge. On appeal to the Louisiana 
Supreme Court the same objection was urged by assignment 
of error and argument in brief. The Louisiana Supreme 
Court affirmed the conviction but Justice Barham in a 
dissenting opinion agreed that the LouisianaStatutory and 
Constitutional provisions exempting women from jury ser­
vice violates the Sixth and Fourteenth amendments of the 
United States Constitution. In appellant's first appli­
cation for rehearing the question was again urged but in 
the Court's opinion on rehearing was disregarded except 
b> Justice Barham who adhered to his original dissent.

It is submitted that the question of the constitution­
ality of a state law which exempts women from jury ser­
vice arising as it does in a capital case, is obviously 
a substantial federal question. The question is ripe for 
a final determination by the United States Supreme Court. 
In the instant case the question must be answered in 
order to dispose of the appeal. It cannot be disposed of 
on other grounds as in Alexander v. Louisiana, cited 
infra.

WILLIAM McM. KING ’ '
Attorney for Appellant 
P. 0. Box 1029 
Covington, Louisiana 70433



IN THE
Supreme Court of the United States

No. 73-5744

STATE OF LOUISIANA 
versus

BILLY J. TAYLOR

Appeal from the Supreme Court 
of the State of Louisiana

MOTION TO DISMISS

MOTION TO DISMISS APPEAL

Now into Court comes the State of Louisiana, through 
the undersigned Assistant Attorney General of the State 
of Louisiana, and moves this Honorable Court to dismiss 
the appeal in the above numbered and entitled cause of 
action for the following reason, to-wit:

The sole question presented by defendant’s appeal 
is the constitutionality of Article 7, Section 21 of the 
Constitution of the State of Louisiana and Article 402 
of the Louisiana Code of Criminal Procedure.

Article 7, Section 41 of the Louisiana Constitution 
provides as follows:

“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 declara-

5



2

tion of her desire to be subject to such service. All 
cases in which the punishment may not be at hard 
labor shall be tried by a jury of five, all of whom 
must concur to render a verdict; cases, in which 
the punishment is necessarily at hard labor, by a 
jury of twelve, nine of whom must concur to ren­
der a verdict; cases in which the punishment may 
be capital, by a jury of twelve, all of whom must 
'concur to render a verdict.”

Article 402 of the Code of Criminal Procedure fur­
ther provides:

“A woman shall not be selected for jury service un­
less she has previously filed with the Clerk of Court 
of the Parish in which she resides a written dec­
laration of her desire to be subject to jury service.”

These authorities provide a general exemption for 
women from jury service. Neither the Constitution nor 
the Code of Criminal Procedure purports to exclude wom­
en from jury service, but rather accords them the priv­
ilege to serve without imposing the duty to do so. Women 
may waive this privilege by simply filing with the Clerk 
of Court of the Parish in which they reside a written 
declaration of their desire to serve.

The following quotation from Hoyt v. State of Florida, 
368 U.S. 57, 82 S.Ct, 159 (1961), shows that the Florida 
statute in question was almost identical to the Louisiana 
one in the case at bar. (At page 160)

“The jury law primarily in question is Fla. Stat., 
159, §40.01 (1), F.S.A. This Act, which requires 
that grand and petit jurors be taken from ‘male 
and female’ citizens of the State possessed of cer­
tain qualifications,1 contains the following proviso:

6



3

‘provided, however, that the name of no fe­
male person shall be taken for jury service 
unless said person has registered with the 
clerk of the circuit court her desire to be 
placed on the jury list.’

Showing that since the enactment of the statute 
only a minimal number of women has so registered, 
appellant challenges the constitutionality of the 
statute both on its face and as applied in this case. 
For reasons now to follow we decide that both con­
tentions must be rejected.”

The contention in the Florida case is the same as in 
the instant case, that the state, statute works as an uncon­
stitutional exclusion of women from jury service.

In upholding the constitutionality of the Florida sta­
tute this Count said:

“Manifestly, Florida’s §40.01 (1) does not purport 
to exclude women from state jury service. Rather, 
the Statute ‘gives to women the privilege to serve 
but does not impose service as a  duty’.”

In view of this Court’s decision in Hoyt v. State of 
Florida, supra, the Louisiana Constitutional and Codal 
provisions are not unconstitutional, defendant has not 
been deprived of a fair and impartial trial and this ap­
peal should be dismissed.

7



4

Respectfully submitted,

WILLIAM J. GUSTE, JR. 
ATTORNEY GENERAL 
STATE OF LOUISIANA

WALTER SMITH
ASSISTANT ATTORNEY GENERAL 
STATE OF LOUISIANA

WOODROW W. ERWIN 
DISTRICT ATTORNEY 
22nd JUDICIAL DISTRICT

JULIAN J. RODRIGUE 
ASSISTANT DISTRICT ATTORNEY 
22nd JUDICIAL DISTRICT

B Y :----------------------------------------------------
WALTER SMITH
LOUISIANA ATTORNEY GENERAL’S 

OFFICE
CRIMINAL DIVISION 
1885 WOODDALE BLVD.
P.O. BOX 65323
BATON ROUGE, LOUISIANA 70806

8



IN THE

Supreme Court of tfjr ®mteb
OCTOBER TERM, 1973

No. 73-5744

BILLY J. TAYLOR,
Appellant,

v.

STATE OF LOUISIANA,
A ppellee.

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



(i)

TABLE OF CONTENTS

OPINION BELOW .....................................................
JURISDICTION ..........................................................
STATE CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .................................
QUESTIONS PRESENTED ......................................
STATEMENT OF THE C A S E ...................................
SUMMARY OF ARGUMENT ...................................

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 
from Jury Service ......................................

II. The Exclusion of Women From Jury Duty 
Has Violated Appellant’s Rights Guaranteed 
by the Sixth and Fourteenth Amendments .

III. Louisiana Can Show No Compelling Public 
Interest For the Automatic Exemption . . .

IV. The Louisiana Statutory Exemption Dis­
criminates Solely on the Basis of Sex 
Without Regard to Fitness to Serve On 
Juries ...............................................................

CONCLUSION .............................................................

Page

1

1

2
3

3

4

5 

8

10

11

TABLE OF AUTHORITIES

Cases:

Alexander v. Louisiana, 405 U.S. 625, 643 (1971)
(Concurring Opinion) ............................................................... 10

Ballard v. United States, 329 U.S. 187 (1946) ....................  3, 6, 7
Carter v. Jury Commission, 396 U.S. 320 (1970) ....................... 7

Duncan v. Louisiana, 391 U.S. 145 (1968) ....................  4, 6, 7, 9 11



Frontiero v. Richardson, 411 U.S. 677 (1973) .................. 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 (1 9 7 1 ) ........................................ 4, 11
San Antonio Independent School District v.

Rodriguez, 411 U.S. 1, 17 (1973) ....................................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
States ..................■...................................................2 - 5, 7, 11

Fourteenth amendment to the Constitution of the
United S ta te s .............................................................2 - 5, 7, 11

La. Const. Art. VII, §41  2 ,4 ,11

Federal Statutes:

28 U.S.C. §1257 (2) .....................................................................  2

28 U.S.C. §1862 ........................................................................... 10

State Statutes:

La. Code of Crim. Proc. Art. 402 ......................................  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
ana 195   9

( ii)

Page

12



( iii)

Page
Hayghe, Labor Force Activity of Married Women,

U.S. Department of Labor, Monthly Labor
Review, Table 4 (April 1973) .............................................. 9

Holton, Administrator, Commission on the Status of 
Women, State Department of Labor of 
Louisiana, Women Workers in Louisiana, 1970 
(July 1972) ............................................................................  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,
91st Cong., 2d Sess. 725.27 (1970) ......................................10

Women’s Bureau, U.S. Department of Labor,
H ighlights of Women’s Employment and 
Education; Women in the Labor Force (1973) .................. 9

13



IN THF,

Supreme Court of t\)t Umteb States;
OCTOBER TERM, 1973

No. 73-5744

BILLY J. TAYLOR,
Appellant,

v.

STATE OF LOUISIANA,
A ppellee.

APPEAL FROM THE SUPREME COURT 
OF THE STATE OF LOUISIANA

BRIEF FOR APPELLANT

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



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. 
§1257 (2).

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, §41 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 Constitution by reason of the systematic 
exclusion of women from the jury selection process 
governed by La. Const. Art. VII, §41 and La. Code of

16 Criminal Procedure, Art. 402?



3

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. 4-7). 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 
filed 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 
H 5, p. 16 H10). 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 
declaration 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 v.



4

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 v. 
Louisiana, 391 U.S. 145 (1968); Peters v. 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 
v. 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



5

numbering 175, not one of whom was a woman (App. 
p. 4-7). 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 v. 
Healy, No. 73-759, App. p. 83, 84).

II.

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 v. 
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

19



6

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 v. 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. The 
concurring opinion agreed to his standing because of a 
specific statutory prohibition 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

20



7

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, 511.

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 
v. 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 v. United States, supra:

“ Reversible error does not depend on a 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.

21



8

LOUISIANA CAN SHOW NO COMPELLING PUBLIC 
INTEREST FOR THE AUTOMATIC EXEMPTION.

In Peters v. K iff supra, the majority opinion revealed 
that:

“It is of course a separate question whether his 
challenge would prevail, i.e., 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).

In Thiel the Court reasoned that “a 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 
Hoyt v. Florida, supra 368 U.S. 57 (1961), which 
upheld a similar statutory exemption. However the

III.

22



9

sands of time have shifted beneath the foundation of 
Hoyt. 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 Hoyt, because by the 
exemption appellant has been deprived of a funda­
mental constitutional right, Duncan v. Louisiana, supra 
391 U.S. 145 (1968); San Antonio Independant School 
District v. Rodriguez, supra, 411 U.S. 1 (1973).

Factually, the exemption can no longer be justified 
by the assumption in Hoyt 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 included 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 o f Labor, 
Highlights o f  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; 50.2% with children 6-17 years of age 
were in the labor force. Hayghe, Labor Force Activity 
of Married Women, U.S. Department o f Labor, Monthly 
Labor Review, Table 4 at 34 (April 1973). In 
Louisiana, the statistics generally reflect those for the 
nation. Bureau o f the Census, 1970 Census o f 
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 o f Women, State Department o f Labor o f  23



10

Louisiana Women Workers in Louisiana, 1970 (July 
1972).

Louisiana is the only state to retain an automatic, 
volunteers only, exemption for women. Library o f 
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 o f 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.

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 v. 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 Hoyt the Court has adopted a different 
standard in examining laws or regulations which

24



I I

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

25



12

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 
Loyola 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.

26



IN THE

Supreme Court of the United States
OCTOBER TERM, 1973 

No. 73-5744

BILLY J. TAYLOR
Appellant

-v-
STATE OF LOUISIANA 

Appellee

Appeal from the Supreme Court 
of the State of Louisiana

ORIGINAL BRIEF ON THE MERITS ON BEHALF 
OF THE STATE OF LOUISIANA, APPELLEE

WILLIAM J. GUSTE, JR. 
Attorney General 
State of Louisiana 
Baton Rouge, Louisiana 70804 
WALTER SMITH 
Assistant District Attorney 
State of Louisiana 
Baton Rouge, Louisiana 70804 
WOODROW W. ERW IN 
District Attorney 
Twenty-Second Judicial District 
Franklinton, Louisiana 70438 
JULIAN J. RODRIGUE 
Assistant District Attorney 
Twenty-Second Judicial District 
St. Tammany Parish Courthouse 
Covington, Louisiana 70433 
Attorneys for Appellee

27





I N D E X
Page

TABLE OF AUTHORITIES ............................ i

SUMMARY OF A R G U M EN T .......................... 1

I. Louisiana’s general exemption from 
ju ry  service granted to women by 
Article 7, Section 41, of the Constitu­
tion of the State of Louisiana and A r­
ticle 402 of the Louisiana Code of 
Criminal Procedure does not violate 
the Sixth and Fourteenth Amendments 
of the United States Constitution . . . .  1

II. Appellant, a male, has no standing to 
challenge the constitutionality of the 
general exemption granted to women 
from jury  service by Louisiana law, as 
he is not a member of the allegedly ex­
cluded class, nor should his conviction 
be set aside without a showing on his 
p art of some possibility of harm or 
prejudice ............................................... 17

III. The State of Louisiana requests this 
court, should it rule against the State, 
to not apply its ruling retroactively 
because of the tremendous hardship it 
would place on the criminal justice sys­
tem in the S ta te ....................................  23

CONCLUSION .....................................................  23

CERTIFICATE OF SERVICE ........................ 25

29



11

TABLES OF AUTHORITIES

CASES: Page

Apodaca v. Oregon, 406 U-S. 399, 404
(1972) ............................................................  6> 22

Ballard v. United States, 329 U-S. 187
(1946) ....................................................... 7> 18> 19

Carter v. Jury Commission, 396 U. S. 320
(1970) ............................................................  7> 8

Duncan v. Louisiana, 391 U. S- 145 (1968) . . .  5, 10

Fay v. People of the State of New York,
322 U. S. 261 (1947) ..................................  14

Frontiero v■ Richardson, 411 U- S- 677
(1973) .................................. .......................12

Hoyt v. Florida, 368 U. S. 57 (1961) 4, 10, 16, 17, 21 
Labine v. Vincent, 401 U- S. 532 (1971) .........  13

Leighton v. Goodman, 311 F. Supp. 1181
(1970) ............................................................ 45

Peters v. Ki f f ,  407 U-S. 493
(1972) ..................................  5 ,7 ,8 ,1 8 ,1 9 ,2 0 ,2 2

Rawlins v. Georgia, 201 U. S- 638 (1906) . . . .  9
Reed v. Reed, 404 U. S. 71 (1971) ................... 11, 12
Smith v. Texas, 311 U. S. 128, 139 (1941) . . 7, 19
State v. Edwards, 287 So-2d 518 (1973) . . . .  3
Williams v■ Florida, 399 U. S. 78 (1970) . . . .  6, 8
Zelechower v. Younger, 424 F. 2d 1256

(1970)   9

30



Ill

CASES: Page
CONSTITUTIONS:

Sixth Amendment to the Constitution
of the United S ta te s ....................................  1, 22

Fourteenth Amendment to the Constitution
of the United States . .............................. 1, 5, 6, 22

La. Const. Art. VII, Sec. 4 1 ........................1, 2, 3, 15, 28

La. Const, (effective Jan. 1, 1975)
Art. V, Sec. 3 3 ...............................................15, 16

FEDERAL STATUTES:

18 U-S.C. § 243 .....................................................  8, 20

18 Stat. 336, 8 U-S.C. § 44 ..................................  8

STATE STATUTES:
La. Code of Grim. Proc. Art. 402 ...........1, 2, 3, 16, 23

31





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

ORIGINAL BRIEF ON THE MERITS ON BEHALF 
OF THE STATE OF LOUISIANA, APPELLEE

I.
LOUISIANA’S GENERAL EXEMPTION FROM JURY 
SERVICE GRANTED TO WOMEN BY ARTICLE 7, 
SECTION 41, OF THE CONSTITUTION OF THE STATE 
OF LOUISIANA AND ARTICLE 402 OF THE LOUISI­
ANA CODE OF CRIMINAL PROCEDURE DOES NOT 
VIOLATE THE SIXTH AND FOURTEENTH AMEND­
MENTS OF THE UNITED STATES CONSTITUTION.

33



2

Article 7, Section 41, of the Louisiana Constitution 
provides as follows:

“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. All cases in which punishment may be 
by hard labor shall be tried by a ju ry  of five, 
all of whom must concur to render a verdict; 
cases, in which the punishment is necessarily 
at hard labor, by a ju ry  of twelve, nine of whom 
must concur to render a verdict, cases in which 
the punishment may be capital, by a jury  of 
twelve, all of whom must concur to render a 
verdict.”

Article 402 of the Code of Criminal Procedure 
further provides:

“A woman shall not be selected for ju ry  service 
unless she has previously filed with the Clerk of 
Court of the Parish in which she resides a w rit­
ten declaration of her desire to be subject to jury  
service.”

Neither the Louisiana Constitution nor the Code 
of Criminal Procedure purports to exclude women from 
ju ry  service, but rather accords them the privilege to 
serve without imposing the duty to do so. Women may 
waive this exemption by simply filing with the Clerk

34



3

of the Parish in which they reside a written declaration 
of their desire to serve.

Appellant does not contend any discriminatory 
practices by any jury  commissioners or state officials.

The Louisiana Supreme Court, in its decision be­
low (App. p. 16-17), held as it consistently has held 
that Louisiana exemption for women is neither irration­
al nor discriminatory. In State v. Edwards, 287 So: 
2d 518 (1973), the Louisiana Supreme Court stated:

“El, 2] Women were not excluded from jury  
service by the jury  commissioners or by law. The 
effect of our law is to permit them to serve if 
they volunteer for service; they cannot be com­
pelled to serve otherwise- La. Const, art. VII, 
Paragraph 41; La. Code Crim. Proc. art. 402. 
This Court has consistently held that Louisi­
ana’s constitutional and statutory provisions, 
requiring women to file with the clerk of court 
of the parish in which they reside a written dec­
laration of their desire to be subject to jury  
service before they can be selected, impair no 
federal constitutional right. State v. Womack, 
283 So. 2d 708 (La. 1973); State v. Taylor, 282 
So. 2d 491 (La. 1973) ; State v. Roberts, 278 So. 
2d 56 (La. 1973); State v. Enloe, 276 So. 2d 283 
(La. 1973); State v■ Washington, 272 So. 2d 
355 (La. 1973); State v. Daniels, 262 La. 475, 
263 So. 2d 859 (1972); State v. Curry, 262 La. 
280, 263 So. 2d 36 (1972); State v. Amphy, 259 
La. 161, 249 So. 2d 560 (1971); State v. Mill- 
sap, 258 La. 883, 248 So. 2d 324 (1971); State

35



4

v. Sinclair, 258 La. 84, 245 So. 2d 365 (1971); 
State v. Pratt, 255 La. 919, 233 So. 2d 883 
(1970); State v. Comeaux, 252 La. 481, 211 So. 
2d 620 (1968); State v. Dees, 252 La. 434, 211 
So. 2d 318 (1968); State v. Reese, 250 La. 151, 
194 So. 2d 729 (1967); State v. Clifton, 247 La. 
495, 172 So. 2d 657 (1965). (Emphasis added.)

In its decisions upholding the constitutional and 
codal provisions granting women a general exemption 
from jury  service, the Louisiana Supreme Court has 
followed the authority of this court in Hoyt v. State of 
Florida, 368 U. S- 57, 82 S. Ct. 159 (1961). The court 
in that case dealt with a Florida statute which was 
almost identical to the Louisiana provisions in the case 
a t bar.

“The jury  law prim arily in question is Fla. 
Stat., 159, § 40:01 (1), F.S-A. This Act, which 
requires that grand and petit jurors be taken 
from ‘male and female’ citizens of the State 
possessed of certain qualifications, contains the 
following proviso:

‘provided, however, that the name of no fe­
male person shall be taken for jury  service 
unless said person has registered with the 
clerk of the circuit court her desire to be 
placed on the jury  list.’

Showing that since the enactment of the statute 
only a minimal number of women has so regis­
tered, appellant challenges the constitutionality 
of the statute both on its face and as applied

36



5

in this case. For reasons now to follow, we decide 
that both contentions must be rejected.”

In upholding the constitutionality of the Florida 
statute, this court sa id :

“Manifestly, Florida’s § 40-01(1) does not pur­
port to exclude women from state ju ry  service. 
Rather the statute ‘gives to women the privilege 
to serve, but does not impose service as a duty.”

Appellant’s main contentions are that after the 
decisions of this court in Duncan v. Louisiana, 391 
U. S. 145 (1968), and Peters v. Ki f f ,  407 U-S. 493 
(1972), due process of law requires that a state jury  
be selected from a representative cross-section of the 
community, and the general exemption granted to wom­
en by Louisiana law has denied him his Sixth Amend­
ment right to trial by a fa ir and impartial ju ry  as ap­
plied to the states by the Due Process Clause of the 
Fourteenth Amendment and that at some point in time 
between the Hoyt decision in 1961 and appellant’s con­
viction in 1972, the “sands of time have shifted beneath 
its foundations” and a state may no longer grant an 
exemption to women for jury  service.

The State of Louisiana contends that the Sixth 
Amendment right to trial by jury  as applied to the 
states by the Due Process Clause of the Fourteenth 
Amendment does not apply the standards and policies 
of the federal courts of jury  venire make-up and exem- 
tions to the states.

In Duncan v- Louisiana, supra, this court applied 
the Sixth Amendment right to trial by jury  to the

37



6

sta tes; however, subsequent decisions have shown that 
the guarantee to a jury  trial does not include every 
vestige of the federal concept of jury  trial. In Williams 
v. Florida, 399 U.S. 78, 90 S. Ct. 1893 (1970), this 
court held that the twelve-man requirement is not 
an indispensable component of the Sixth Amendment 
ju ry  trial as applied through the Fourteenth Amend­
ment to the states. In Apodaca v- Oregon, 406 U.S. 399, 
92 S. Ct. 1628 (1972), the court held that State court 
convictions by less than unanimous juries do not vio­
late right to trial by ju ry  specified by the Sixth Amend­
ment and made applicable to the states by the Four­
teenth Amendment.

The issue presented in the case at bar is the val­
idity of an exemption granted to women of a state by 
that state on the basis of the state interest in the gen­
eral welfare of its citizens and women as the center of 
home and family life. I t  is not a case of jury  commis­
sioners systematically excluding persons because of 
race or any other discriminatory reason from the jury  
roles. It is a case of a state exercising its right to grant 
exemptions from jury  service for the good of the com­
munity based on its awareness and concern with the 
social and cultural structure of its citizenry.

Appellant cites absolutely no authority for the 
proposition that a state may not grant such an exemp­
tion nor one case in which an exemption granted to 
citizens of a state has been held to violate the Sixth 
Amendment right to jury  trial through the cross-section 
of the community requirement of the Due Process 
Clause of the Fourteenth Amendment.

38



7

In his argument, appellant places great emphasis 
on the decision of this court in Ballard v- United States, 
329 U-S. 187 (1946). This case involved the system­
atic and intentional exclusion of women from a Federal 
District Court jury  panel. It did not involve an exemp­
tion granted to women. In fact, the court specifically 
pointed out that there was no exemption provided for 
women by either Congress or the state in which the 
district court sat. The holding of the case rested on the 
fact that the district court had not followed the scheme 
of jury  selection that Congress had adopted. Reversal 
was based on this court’s supervision over the admin­
istration of justice in federal courts and no mention at 
all was made of any constitutional issue being pre­
sented. At page 193 the court concluded:

“We conclude that the purposeful and system­
atic exclusion of women from the panel in this 
case was a departure from the scheme of jury  
selection which Congress adopted and that, as 
in the Thiel ease, we should exercise our power 
of supervision over the administration of jus­
tice in the federal courts, McNabb v■ United 
States, supra, to correct an error which permeat­
ed this proceeding.” (Emphasis added.)

The other authorities appellant cites, Smith v. 
Texas, 311 U-S. 128 (1941), Carter v■ Jury Commis­
sion, 396 U-S. 320 (1970) and Peters v. Ki f f ,  supra, 
(1972), all dealt with racial discrimination.

In Sm ith v. Texas, supra, Justice Black, speaking 
for the court a t P. 130, overturned convictions based 
on racial discriminations by state officials in violation

39



8

of the constitution and laws enacted under it, referring 
by footnote 4 to 18 Stat. 336, 8 U.S-C. § 44, the federal 
statute prohibiting racial discrimination in ju ry  selec­
tions. The case did not hold that a proportional segment 
of each class of a community must be present on jury  
panels. The case dealt with exclusion by invidious dis­
crimination, not with an exemption granted to a par­
ticular class on a rational and historic basis-

In Carter v. Jury Commission, supra, at 523, 524, 
this court dealt with racial discrimination by jury  
commissioners and pointed out the injurious brand 
placed on Negroes by their exclusion, which contra­
venes the long-standing constitutional and statutory 
prohibition against racial bias in selecting juries.

In Peters v- Kif f ,  supra, although a white chal­
lenged his conviction on the basis of Negroes being ex­
cluded from the jury  roles, the case still dealt with the 
long-standing concern through the constitution and 
acts of Congress with the systematic exclusion of blacks 
by state officials. This constituted an illegally-drawn 
jury  by reason of Congressional Act, 18 U-S.C. § 243. 
The court did not say that a defendant was entitled to 
a proportional cross-section of the community, but in 
dicta said, referring to Williams v. Florida, supra, that 
a fa ir possibility for obtaining a cross section of the 
community should be present. Williams, supra, spoke 
of arbitrary exclusion of a particular class being for­
bidden.

All of these cases dealt with the problem of racial 
discrimination by officials in selecting jury  roles and 
none dealt with exemptions granted to women by a state 
for their benefit.

40



9

Additionally, no specific holding was made in 
these cases requiring a jury  panel reflective of a cross- 
section of the community. W hat was mentioned was a 
fa ir possibility of a ju ry  panel reflective of a cross- 
section of the community free of arbitrary exclusion.

In the case a t bar, a cross-section of the commun­
ity is available for jury  duty. Women, as a class, are 
not prohibited from service. If they choose to serve, 
they may. There is no allegation nor any evidence pre­
sented that ju ry  commissioners or state officials sys­
tematically exclude women from the roles once they 
choose to serve.

The right of a state to exempt certain classes from 
jury  service is of long standing. In Rawlins v. Georgia, 
201 U-S. 638 (1906), Justice Holmes stated a t 640:

“But if the state law itself should exclude cer­
tain classes on the bona fide ground that it was 
for the good of the community that their regular 
work should not be interrupted, there is nothing 
in the Fourteenth Amendment to prevent it. The 
exemption of lawyers, ministers of the gospel, 
doctors, and engineers of railroad trains, in 
short substantially the exemption complained 
of, is of old standing and not uncommon in the 
United States. I t could not be denied that the 
State properly could have excluded these classes 
had it seen fit, and that undeniable proposition 
ends the case.”

See also Zelechower v. Younger, 424 F. 2d 1256, 
1259 (9th Cir. 1970).

41



1 0

The right of exemptions for women from jury  
service is of long standing in both state and federal 
courts. Hoyt v. Florida, supra, at 60.

Considering the above, the State of Louisiana con­
tends that after Duncan v■ Louisiana, supra, the state 
is still free to determine its own policy of exemptions, 
even if they do not coincide with those of the federal 
courts, if it meets the test stated in Hoyt v. Florida, 
supra, a t 61:

“Where, as here, an exemption of a class in the 
community is asserted to be in substance an ex­
clusionary device, the relevant inquiry is wheth­
er the exemption itself is based on some reason­
able classification and whether the manner in 
which it is exercisable rests on some rational 
foundation.”

And as this court decided in Hoyt, an exemption 
for women would meet this test. As Justice Harlan 
pointed out at page 61, 62, :

“In neither respect can we conclude that Flor­
ida’s statute is not ‘based on some reasonable 
classification,’ and that it is thus infected with 
unconstitutionality. Despite the enlightened 
emancipation of women from the restrictions 
and protections of bygone years, and their entry 
into many parts of community life formerly 
considered to be reserved to men, woman is still 
regarded as the center of home and family life. 
We cannot say that it is constitutionally im­
permissible for a State, acting in pursuit of the

42



1 1

general welfare, to conclude that a woman 
should be relieved from the civic duty of jury  
service unless she herself determines that such 
service is consistent with her own special respon­
sibilities.

♦ ♦ ♦

I t is true, of course, that Florida could have 
limited the exemption, as some other States have 
done, only to women who have family responsi­
bilities. But we cannot regard it as irrational for 
a state legislature to consider preferable a broad 
exemption, whether born of the State’s historic 
public policy or of a determination that it would 
not be administratively feasable to decide in each 
individual instance whether the family respons­
ibilities of a prospective female ju ror were ser­
ious enough to w arrant an exemption.” (Em­
phasis added.)

Appellant alleges that since Hoyt the court has 
charged its standard for examination of laws that dis­
criminate solely on the basis of sex. The cases that ap­
pellant relies on as examples of this court’s changed 
attitude are Reed v. Reed, 404 U-S. 71 (1971) and 
Frontiero v. Richardson, 411 U-S. 532 (1973). The 
court, in both cases, recognized that the questionable 
statutes were based on speed and efficiency in hand­
ling of administrative functions. This court recognized 
that administrative convenience, while not completely 
lacking in importance, is subordinate to high priorities 
such as where there is a statutory scheme that draws 
a sharp line between the sexes.

But the Louisiana provisions complained of do

43



1 2

not rest their origin in mere m atters of administrative 
convenience. Instead, Louisiana is attempting only to 
regulate and provide stabliity to the state’s own idea 
of family life.

The Idaho provision in Reed v. Reed, supra, was a 
mandatory statute that gave men preference over wom­
en in administration of an estate. The probate court 
in Idaho recognized the equality of applicants for the 
position without any determination of relative capa­
bilities in performance of the functions incident to an 
administration of an estate. The presumption was con­
clusive in Reed that the father of the deceased was 
more suitable than the mother to administer the estate. 
Reed did not deal with whether sex is a suspect classi­
fication. But such a contention was brought out in 
Frontiero v. Richardson, which dealt with a female 
married Air Force officer challenging a federal stat­
ute that required proof of her husband’s dependency 
before she could receive increased quarters allowances 
and housing and medical benefits for her husband. No 
such proof of dependency was required by a male serv­
ice member seeking the same allowances with respect 
to his wife. There were four dissenting justices in Fron­
tiero at p. 1773, three of who expressly rejected “that 
classifications based upon sex, ‘like classifications based 
upon race, alienage, and national origin’, are ‘inheren­
tly suspect and must therefore be subjected to close 
judicial scrutiny.” The dissent pointed out that Reed 
had drawn no such conclusion of sex as an inherently 
suspect classification.

In the two above mentioned cases there was a 
purely arb itrary  preference in favor of males. The

44



1 3

preference given to women in Louisiana has its history 
in the unique treatm ent Louisiana has afforded the 
family unit without concern for administrative speed 
or efficiency. Louisiana submits that the exemption giv­
en to women by the Louisiana legislature is reasonable 
and has a rational connection between the preference 
given to women and the legitimate government end in 
which Louisiana seeks to protect its family life.

This court has before recognized Louisiana’s spec­
ial interest in protection of family life in Labine v- 
Vincent, 401 U.S- 532, 91 S.Ct. 1017 (1971). In Labine, 
this court upheld choices reflected in Louisiana intestate 
succession that denied acknowledged illegitimate chil­
dren from claiming rights of legitimate children and 
permitting acknowledged illegitimates to inherit only 
to the exclusion of the states as within the power of the 
state to make. The court concluded a t p. 1021 that “the 
power to make rules to establish, protect and strength­
en family life as well as to regulate the disposition of 
property left in Louisiana by a man dying there is 
committed by the Constitution of the United States and 
the people of Louisiana to the legislature of that State.” 
Louisiana is exercising its rule-making powers “to 
establish, protect and strengthen family life” and 
whether the court thinks Louisiana’s rules are wisely 
enacted does not bear on the constitutionality of the 
enactments.

The State of Louisiana has a long tradition of 
protection of the family founded in its civil law tra ­
ditions and customs rooted in its historical French and 
Spanish heritage. See Labine v. Vincent, supra.

45



1 4

With this background and tradition of concern 
for family life and the women at the center of the fam ­
ily, the State of Louisiana has long granted this general 
exemption to its women from jury  service. Because of 
the state’s closeness to its people and awareness of their 
needs, this court has long left such social and policy 
questions to the states.

In Fay v. New York, 322 U. S. 261 (1947), this 
court noted a t 240:

“It would, in the light of this history, take some­
thing more than a judicial interpretation to 
spell out of the Constitution a command to set 
aside verdicts rendered by juries unleavened 
by feminine influence. The contention that wom­
en should be on the jury  is not based on the Con­
stitution, it is based on a changing view of the 
rights and responsibilities of women in our pub­
lic life, which has progressed in all phases of 
life including jury  duty, but has achieved con­
stitutional compulsion on the states only in the 
grant of the franchise by the Nineteenth Amend­
ment. We may insist on their inclusion on fed­
eral juries where by state law they are eligible, 
but women jury  service has not so become a part 
of the testual or customary law of the land that 
one convicted of crime must be set free by this 
court if his state has lagged behind what we 
personally may regard as the most desirable 
practice in recognizing the rights and obliga­
tions of womanhood.

In this regard, states often vary in their innova-

46



1 5

tions or lack of it in developing their systems of crimin­
al justice. With this in mind, this court stated in Fay, 
supra, a t 295:

“We adhere to this policy of self-restraint and 
will not use this great centralizing Amendment 
to standardize administration of justice and 
stagnate local variations in practice. The jury  
system is one which has undergone great mod­
ifications in its long history, see People v. Dunn, 
157 N.Y. 528, 52 N.E. 572, 43 L.R.A. 247, and 
it is still undergoing revision and adaptation to 
adjust to the tensions of time and locality.”

The Federal District Court followed this principle 
recently in upholding the State of New York’s exemp­
tion for women from jury  service in Leighton v■ Good­
man, 311 F-Supp 1181,1183 (1970).

Appellant quotes many statistics relating to wom­
en in his argument (p. 9-10), yet these would be better 
presented to the state legislature or Congress than to 
this court, for statistics cannot reveal the social and 
traditional concerns of the Louisiana population.

The State of Louisiana is not unresponsive to 
change or “the sands of time” and, in fact, in April of 
1974, voted to enact a new constitution to take effect 
January  1, 1975, which does not retain an exemption 
for women as in Section 41 of Article VII of the pres­
ent constitution. The new Constitution’s provision re­
specting jurors, Article V, Section 33, will read as fol­
lows :

47



1 6

“Section 33. (A) Qualifications.

A citizen of the State who has reached the age 
of majority is eligible to serve as a ju ror within 
the parish in which he is domiciled. The legis­
lature may provide additional qualifications.

(B) Exemptions.

The Supreme Court shall provide by rule for 
exemption of jurors.”

The fa ir import of the new Constitution would 
also do away with the Code of Criminal Procedure 
Article 402, as all exemptions will be determined by 
Supreme Court rule.

To contend that this conviction should be reversed 
because Louisiana’s general exemption has been smoth­
ered by the sands of time would ignore the State of 
Louisiana’s concern with, and development of, its sys­
tem of criminal justice. It has indeed responded to 
change as it felt its system of justice and citizens re­
quired, though perhaps, on this issue, slower than some 
states. Yet, who can say a t what point in time between 
this court’s decision in Hoyt v. Florida, supra, in 1961, 
and appellant’s conviction in 1972, it became too late to 
meet constitutional requirements of due nrocess?

Considering the above arguments, the State of 
Louisiana contends that its general exemption of wom­
en from jury contained in its present Constitution and 
Code of Criminal Procedure is reasonable and not dis­
criminatory nor violative of the right to a fa ir and im-

48



1 7

partial ju ry  as applied to the states by the Due Process 
Clause of the Fourteenth Amendment. As to this issue, 
the number of women who have served on juries in the 
state is irrelevant, as stated by the court in Hoyt v. 
Florida, supra, at 65:

“This argument, however, is surely beside the 
point. Given the reasonableness of the classifica­
tion involved in § 40.1 (1 ), the relative paucity 
of women jurors does not carry the constitution­
al consequence appellant would have it bear. 
‘Circumstances or chance may well dictate that 
no persons in a certain class will serve on a 
particular jury  or during some particular per­
iod.’ Hernandez v. Texas, supra, at 482.”

II.

APPELLANT, A MALE, HAS NO STANDING TO 
CHALLENGE THE CONSTITUTIONALITY OF THE 
GENERAL EXEMPTION GRANTED TO WOMEN FROM 
JURY SERVICE BY LOUISIANA LAW, AS HE IS NOT 
A MEMBER OF THE ALLEGEDLY EXCLUDED CLASS, 
NOR SHOULD HIS CONVICTION BE SET ASIDE WITH­
OUT A SHOWING ON HIS PART OF SOME POSSI­
BILITY OF HARM OR PREJUDICE.

Appellant, who urges no prejudice or bias by the 
all-male jury  which convicted him, would have the 
court reverse an unquestionably fa ir and impartial 
trial on the basis that not enough members of a class 
of which he is not a member, were not included in the 
jury  selection process. He makes no allegations that,

49



1 8

had women been included, his trial would have been 
any more fa ir or impartial, nor that their absence 
caused him any harm.

The State of Louisiana has urged this court to up­
hold its constitutional and codal exemptions. In either 
case the State contends that petitioner, a male, has no 
standing to challenge this jury  panel or have his con­
viction set aside on the basis that there were not enough 
women on the jury  roles. To allow reversals of obviously 
fa ir and unbiasd convictions on the basis that an ex­
emption granted by the state to some class, of which 
petitioner is not a member, without even a hint of prej­
udice opens the door for any convicted defendant to 
’“shop” around the community for any identifiable 
group who, for any reason, might not be compelled to 
serve on juries — in effect, to escape conviction on a 
technicality without the slightest consideration of 
whether he has suffered any harm.

Appellant relies on Peters v- Kif f ,  supra, and Bal­
lard v. United States for this contention. However, there 
is a great distinction between these cases and the ration­
ale behind them and the case a t bar. Both cases involved 
illegal discrimination by officials charged with jury  
selection. In his brief, appellant, a t page 7, quotes se­
lectively from Ballard but perhaps the entire quote is 
more revealing of the issue under consideration.

“But reversible error does not depend on a show­
ing 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

50



1 9

systematic and intentional exclusion of women, 
like the exclusion of a racial group, Sm ith v. 
Texas, 311 U-S. 128, or an economic or social 
class, Thiel v. Southern Pacific Co., supra, de­
prives the jury  system of the broad base it was 
designed by Congress to have in our democratic 
society. I t  is a departure from the statutory 
scheme. As well stated in United States v- Roe- 
mig, 52 F. Supp. 857, 862, ‘Such action is oper­
ative to destroy the basic democracy and class­
lessness of jury  personnel.’ It ‘does not accord 
to the defendant the type of jury  to which the 
law entitles him. I t  is an administrative denial 
of a right which the lawmakers have not seen 
f i t  to withhold from, but have actually guaran­
teed to him. Cf. Kotteakos v. United States, 328 
U-S. 750, 764-765. The injury is not limited to 
the defendant — there is injury to the ju ry  sys­
tem, to the law as an institution, to the com­
munity at large, and to the democratic ideal re­
flected in the processes of our courts.” (Em­
phasis added.)

What the court was concerned with in its reversal 
was the Federal District Court’s intentional exclusion 
of women in violation of the statutory system of jury  
selection set out by congress. In addition there was a 
woman involved as a defendant in the trial and a pos­
sibility of prejudice. See Ballard, supra, a t 194, 195. 
Additionally, as pointed out above, Ballard was re­
versed pursuant to this court’s supervisory powers over 
the administration of criminal justice in federal courts.

In Peters v. Kiff ,  supra, in which this court al-

51



2 0

lowed a white man to challenge the constitutionality of 
his jury  selection because of racial discrimination 
against Negroes, the court was again faced with an il­
legal jury  selecting process. The decision by a divided 
court rested on the long concern for preventing racial 
discrimination and the illegality of such discrimination 
in ju ry  trials. The holding as announced by Justice 
Marshall for three members of this court stated :

“Accordingly, we hold that, whatever his race, a 
criminal defendant has standing to challenge 
the system used to select his grand or petit jury, 
on the ground that it arbitrarily  excludes from 
service the members of any race, and thereby de­
nies him due process of law. This certainly is 
true in this case, where the claim is that Negroes 
were systematically excluded from ju ry  service. 
For Congress has made such an exclusion a 
crime. 18 U.S.C. § 243.” (Emphasis added.) Pet­
ers v. Ki f f ,  supra, a t 2169.

In the concurring opinion of Justice White, this 
central theme was even stronger:

“For me, however, the rationale and operative 
language of Hill v. Texas suggest a broader 
sweep; and I  would implement the strong stat­
utory policy of § 243, which reflects the central 
concern of the Fourteenth Amendment with rac­
ial discrimination, by permitting the petitioner 
to challenge his conviction on the grounds that 
Negroes were arbitrarily  excluded from the 
grand jury  that indicted him.” (Emphasis add­
ed.) Peters v. Ki f f ,  supra, at 2170.

52



21

However, in the case at bar, there are no allega­
tions that the State or its officials have attempted to 
exclude women. The absence of women itself does not 
carry the same effect as the absence of racial groups 
and the resulting possibilities of invidious discrimina­
tion affecting the criminal jury  system. The observaton 
of this court in Hoyt v- Florida, supra, recognized this 
at page 68.

“This case in no way resembles those involving 
race or color in which the circumstances shown 
were found by this court to compel a conclusion 
of purposeful discriminatory exclusions from 
jury  service. E.g. Hernandez v- Texas, supra, 
Norris v. Alabama, 294 U.S. 587; Smith v- 
Texas, 311 U-S. 128; Hill v. Texas, 316 U.S. 
400; Eubanks v. Louisiana, 356 U.S. 584. There 
is present here neither the unfortunate atmos­
phere of ethnic or racial prejudices which under­
lay the situations depicted in these cases, nor 
the long course of discriminatory adm inistrat­
ive practice which the statistical showing in 
each of them evidenced-”

Given the situation in the case at bar, where there 
is no illegal action on the part of the State in its jury 
selection process, where we are dealing not with a 
prohibition against a class, but with an exemption, and 
not with racial discrimination, the State of Louisiana 
contends that appellant, who is not a member of the 
alleged absent class, must show some possibility of harm 
or prejudice to himself in order to have his conviction 
reversed.

53



2 2

I t is true that after Duncan v. Louisiana, supra, a 
defendant does have a right to a fa ir and impartial 
ju ry  trial guaranteed by the Sixth Amendment and 
applied to the State through the Fourteenth Amend­
ment. Also, this court has recently spoken of the need 
for a fa ir possibility for representation from a cross- 
section of the community. Yet, this court has never ruled 
that a defendant has a right to any particular class on 
his jury. The principle that jury  panels should reflect 
a cross-section of the community is more a creature of 
the due process clause than the Sixth Amendment. See 
Apodaca v- Oregon, supra, a t 1634 and Peters v. Kiff .  
The principle has developed through the possibility that 
certain members of a class may suffer from the prej­
udices likely where discrimination occurs against the 
class and is especially rooted in the historical struggle 
against racial discrimination.

The State of Louisiana maintains that it is still 
necessary for defendant to show that the absence or 
exclusion of a class which depletes the cross-section of 
the ju ry  panel has some relationship to possible bias 
or prejudice in the accused trial, except where the jury  
panel is challenged as being illegally constituted by 
purposeful racial discrimination as in Peters v. Kif f ,  
supra. In other cases involving classes and groups of 
communities, a defendant should still be required to 
show some harm or prejudice and the words of Chief 
Justice Burger in his dissent in Peters v. Ki f f ,  supra, at 
2171 should still apply:

“However, in order for petitioner’s conviction 
to be set aside, it is not enough to show merely 
that there has been some unconstitutional or un-

54



lawful action a t the trial level. I t  must be estab­
lished that 'petitioners’s conviction has resulted 
from  the denial of federally secured rights prop­
erly asserted by him. See Alderman v. United 
States, 394 U-S- 165, 171-174, 89 S-Ct. 961, 
965-957, 22 L.Ed.2d 176 (1969); c f : Jones v. 
United States, 362 U-S. 257, 261, 80 S. Ct. 725, 
731,4 L.Ed.2d 697 (I960).” (Emphasis added.)

The State of Louisiana urges that the appellant’s 
conviction not be reversed.

2 3

III.

THE STATE OF LOUISIANA REQUESTS THIS COURT, 
SHOULD IT RULE AGAINST THE STATE, TO NOT AP­
PLY ITS RULING RETROACTIVELY BECAUSE OF 
THE TREMENDOUS HARDSHIP IT WOULD PLACE 
ON THE CRIMINAL JUSTICE SYSTEM IN THE STATE.

CONCLUSION

The constitutionality of Article VII, § 41 of the 
Louisiana State Constitution and Article 402 of the 
Louisiana Code of Criminal Procedure should be up­
held and the conviction of appellant should be affirmed.

55



24

Respectfully submitted,

WILLIAM J. GUSTE, JR. 
Attorney General 
State of Louisiana 
Baton Rouge, Louisiana 70804

WALTER SMITH 
Assistant Attorney General 
State of Louisiana 
Baton Rouge, Louisiana 70804

WOODROW W. ERWIN 
District Attorney 
Twenty-Second Judicial District 
P. 0. Box 543
Franklinton, Louisiana 70438

JULIAN J. RODRIGUE
Assistant District Attorney 
Twenty-Second Judicial District 
St. Tammany Parish Courthouse 
Covington, Louisiana 70433

Attorneys for Appellee

W i z
WALTER SMITH
Louisiana Attorney General’s Office 
Criminal Division 
1885 Wooddale Blvd.
P. O. Box 65323
Baton Rouge, Louisiana 70804

56



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