Marshall v Holmes Brief of Appellants

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 73-3849

MARY ALICE MARSHALL, et al.,

Laughlin McDonald 
Emily Carssow 
Neil Bradley 
Morris Brown 
52 Fairlie Street, N.W. 
Atlanta, Georgia 30303

Melvin L. Wulf
22 East 40th Street
New York, New York 10016

OF COUNSEL

Kent Spriggs
118 North Gadsden Street 
Tallahassee, Florida 32301

ATTORNEYS FOR APPELLANTS



IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 73-3849

MARY ALICE MARSHALL, et al.,

Plaintiffs-Appellants, 
v.

DONALD HOLMES, et al.,

Pefendants-Appellees.

CERTIFICATE OF SERVICE

I certify that I have caused two copies of the Brief of 
Appellants to be served on the -Honor-ab-le -Reber^ETTevin,

Attorney--GenerarL^—Th-e--Capitol Tallahassee , Florida

32301,-by placing them In an envelops.,— aix. mail postage 
prepaid , and depositing them in the United States mail. 

Done this 8t’n day of January, 1974.

s/Neil Bradley 
Neil Bradley



No. 73-3849

MARY ALICE MARSHALL, et al.,
Plaintiffs-Appellants,

v.
DONALD HOLMES, et al.,

Defendants-Appellees.

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

CERTIFICATE OF COUNSEL

The undersigned, counsel of record for appellants, certi­

fies that the following listed parties have an interest in the 

outcome of this case. These representations are made in order 

that the judges of this Court may evaluate possible disquali­

fications or recusal pursuant to local Rule 13(a).

1. Mary Alice Marshall

2. William Hunt

3. Fannie Mae Jamison

4. Willie Mae Allen

5. Rosa Lee Brown

6. Joe E. Scott

7. Andrew Lee

8, Will, lam F . Gavin

9. J. Willard Smith

10. Marshall D . Cannon

The interest of each of the above is that he or she is a party.

Attorney for Appellants
i



INDEX
Page

Certificate of Counsel 

Issues Presented -

I The district court erred in failing to 
convene a three-judge court to adjudicate 
the constitutionality of the mother's 
exemption provision of the Florida jury 
law: the exemption is invalid on its face

II The women's exemption renders an uncon­
stitutional result in Levy County; the 
district court had jurisdiction and should 
have decided the question in favor of 
the plaintiffs........ \ ...................

Ill The defendants have discriminated against 
black citizens as a class in the selection 
of persons for the jury l i s t .............

V
Statement of theXase^..............................

hi ^
Point I The district court erred in

failing to convene a three-judge 
court to adjudicate the constitu­
tionality of the mother's exemption 
provision of the Florida jury law: 
the exemption is invalid on its facfe.

Point II The women's exemption renders an un­
constitutional result in Levy County; 
the district court had jurisdiction 
and should have decided the question 
in favor of the plaintiffs . , . . .

Point III The defendants have discriminated
against black citizens as a class in 
the selection of persons for the jury 
11s t ................. ..

/

. 1

1

1

1

3

16

20
Conclusion 23



TABLE OF AUTHORITIES
Cases

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

Astro Cinema Corp. v. Mackell, 42 2 F. 2d
293 (2nd Cir. 1970) ..........................

Atkins v. Charlotte, 296 F. Supp. 1068 (D.N.C. 
1969) .........................................

• 3 G K 2 V -
Broadway v, Culpepper, 439 F. 2d 1253 (5th 
--Cir. 1971) .....................................

17

19

5

't t

Brooks v. Beto, 366 F. 2d 1 (5th Cir. 1966) . .

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

Cleveland v. United States, 323 U.S. 329 (1945)

Data Processing Service v. Camp, 397 U.S. 150 
(1969) ......................................... 4

DeKosenko v. Brandt, 63 Misc. 2e 895, 313 N.Y.S.
2d 827 (S. Ct. 1970) ..........................

Ford v. White, 430 F. 2d 251 (5th Cir. 1970) . .

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

Goesaert v. Cleary, 335 U.S. 464 (1948) . . . .

Grimes v. United States, 391 F. 2d 709 (5th Cir. 
1 9 6 8 ) ........................................... ..

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

Hall v. Garson, 430 F. 2d 430 (5th Cir. 1970). . .

Healy v. Edwards, 363 F. Supp. 1110 (E.D. La.
I  U  (  V  I i t -  r .  __  - i  rs  / -» /-• a h  v  •*- \x ̂ « w / \ j ŝ uui. • • • • s • s 9 v # a 0

Hernandez v. Texas, 347 U.S. 475 (1954) ...........

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

Labat v. Bennett, 365 F. 2d 698 (5th Cir. 1966) . .

iii



Mayhues Super Liquor Store v. Meiklejohn, 426
F. 2d 142 (5th Cir. 1 9 7 0 ) ...................... 3

McGowan v. Maryland, 306 U.S. 420 (1961) . . . .  7
McMannaman v. United States, 327 F. 2d 21 (10th

Cir. 1 9 6 4 ) ........................................ 4, 5

Cases Cont'd Page

1 !

Mitchell v. Johnson, 250 F. Supp. 117 (M.D. Ala.
! 9 6 6 ) ...........................................  4, 10

Peters v. Kiff, 407 U.S. 493 (1972).............  6
Phillips v. United States, 312 U.S. 246 (1941) . . 18

J ?  /3/Xnl.lum v. Greene, 396 F. 2d 251 (5th Cir. 1968) . *-- 7~

Reed v. Reed, 404 U.S. 71 (1971)...............  6, 13
Rorick v. Board of Commissioners, 307 U.S. 208(1939) 18 

Rowe v. Peyton, 383 F. 2d 709 (4th Cir. 1967) . . 9

\D Smith v. Yeager, 4 65 F. 2d 272 (3rd Cir. 1972), 5
—  / i/, H  /$* ^ */f7 £  r-

Spencer v. Kugler, 454 F. 2d 839 (3rd Cir. 1972). 18

Stainback v. Mohock Ke Lok Po, 336 U.S. 368 (1949) 18
7, /Z'Turner v. Fouche, 396 U. S. 346 (1970)........... o\ /

a j ^ u - y/  )l, rtfs. c
United States v. Pentado, 463 F. 2d 355 (5th Cir.

1 9 7 2 ) .............................................  5
White v. Crook, 251 F. Supp. 401 (M.D. Ala. 1966) . 5, 15

Williams v. Florida, 399 U.S. 78, 100 (1970) . . . 2$ ̂ __

Constitution of the United States

Fourteenth Amendment ...............  ,

JLloxida Statutes § 4 0 . 0 1 ............
?  ̂ 7 /  7 1 /” * ^28 U.S.C. §§' 2281 and 2284 ..........

N.J.S.A. § 93-1304(12) ...............

5

13

iv



IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No.. 73-3849 
Summary Calendar*

MARY ALICE MARSHALL, ET AL., 
For themselves and For all 
others similarly situated,

versus
Plaintiffs-Appc 1 iants ,

DONALD HOLMES, ET AL.,
Etc. , .

Defendants-Appellees.

Appeal from the United States District Court 
for the Northern District of Florida

( May 30 , 1974)
Before COLEMAN, DYER and RONEY, Circuit Judges.
PER CURIAM:

We affirm the judgment of the district court for the
reasons set forth in its adjudication 365 F.Supp. 613 . See

1/
Local Rule 21.

*Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. Citizens Casualty 
Company of New York, et al., 5 Cir. 1970, 431 F.2d 409, Part I.
1J  See NLRB v. Amalgamated Clothing Workers of America, 5 Cir. 1970, 
430 F .2d 966.

I



Page
Other Authorities

Anno. 15 L. Ed. 904, 918 (1966) . . . . . . .  17

Johnston and Knapp, Sex Discrimination by Law:
A Study in Judicial Perspectives, 46 N.Y.U.L.
Rev. 675 (1971)......................~T~7 . 11

Nagel and Weitzman, Women as Litigants, 23 Hast­
ings L. J. 171 (1971)................... “  4

U. S. Women's Bureau-Dept of Labor, Highlights of 
Women's Employment and Education (1973) T .  ̂ \ 14

V , $ ■ , M u s 'k a  u

a'f ft.4 0 ^ - s s s ,  - 4 L - J  ^ / > J * 1

L-Lzx.jL___ A s .t A-k  - j

^ J t/ { K .

V



ISSUES PRESENTED

I. The district court erred in failing to convene a 

three-judge court to adjudicate the constitutionality of 

the mother's exemption provision of the Florida jury law: 

the exemption is invalid on its face.

II. The women's exemption renders an unconstitutional 

result in Levy County; the district court had jurisdiction

and should have decided the question in favor of the plaintiffs.

III. The defendants have discriminated against black 

citizens as a class in the selection of persons for the jury

list.



-C-v*

STATEMENT OF THE CASE

On January 13, 1972, a group of black men and women citi­

zens filed the complaint, alleging that blacks and women were 

underrepresented on the Levy County juries. The issues were 

framed and the case tried on the amended domplaint. R. 61.

On April 20, 1973, plaintiffs moved to convene a three-judge 

court for the purpose of adjudicating the constitutionality of 

that portion of Florida Statutes § 40.01 which allows women 

with children under 16 to opt out from jury service. R. 92.

The case was adjudicated on stipulated facts. R. 94-95, 

100-02, 106-07. The court entered an Opinion-Order on Septem­

ber 28, 1973, declining to convene a three-judge court and 

resolving all issues in favor of the defendants. T. 108. 

Judgment was entered that day. T. 120. The notice of appeal 

was filed October 23, 1973, T. 121.

Because the facts were stipulated and have been reduced 

to several stipulated pages, it will be more expeditious for 

the Court to read those pages verbatim in the Appendix. R. 
100-02 , 94-95 , 106-07.

-2-



POINT I
THE DISTRICT COURT ERRED IN FAILING 
TO CONVENE A THREE-JUDGE COURT TO 

ADJUDICATE THE CONSTITUTIONALITY OF 
THE MOTHER'S EXEMPTION PROVISION 

OF THE FLORIDA JURY LAW:
THE EXEMPTION IS INVALID ON ITS FACE

Plaintiffs requested that a three-judge court be convened 

as authorized by 28 U.S.C. §§ 2281 and 2284. R.'92. The sub­

stantive test in determining the propriety of a three-judge 

court is simple, although its application is not always so easy: 

"unless the claim of validity/invalidity is insubstantial a 

three-judge court is required." Mayhue1s Super Liquor Store,

Inc, v. Meiklejohn, 426 F .2d 142, 144 (5th Cir. 1970). In 

light of recent Supreme Court decision dealing with discrimi­

nation on the basis of sex, the contention that the Florida 

Statute is a denial of equal protection to potential female 

jurors is neither insubstantial nor without merit.

The right and obligation of female citizens to partici­

pate in the administration of justice on the same basis as male 

citizens is appropriately regarded as an essential accoutre­

ment of the constitutional right to an impartial jury drawn 

from all segments of the community. Carter v. Jury Commission,

396 U.S. 320, 330 (1970); cf. Griswold v. Connecticut, 381 U.S.

479 (1965). The right flows as a matter of equal protection to 

women as potential jurors and litigants and to society as a whole 

as a matter ot due process, helping to insure that the judicial 

system functions to provide the fair trials that representative 

juries promote. Carter, supra; Peters v. Kiff, 407 U.S. 493 (1972).

Without women as triers of fact, women litigants suffer a

-3-



demonstrable "injury in fact." Data Processing Service v.

Camp, 397 U.S. 150, 152 (1969). "The two sexes are not fungible; 

a community made up exclusively of one is different from a community 

composed of both." Ballard v. United States, 329 U.S. 187, 193 (1946). 

A female personal injury plaintiff, for example, is likely to 

suffer a significant disadvantage from the absence of women on 

her jury. Empirical studies indicate that male-dominated 

juries, such as those which sit in Florida courts as a result of 

the challenged jury selection provisions, award greater 

damages to male than to female plaintiffs in civil cases, and 

are likely to give male defendants lighter sentences than fe­

male defendants in criminal cases. Nagel & Weitzman, "Women 

as Litigants," 23 Hastings L.J. 171, 192-97 (1971).

Many of the jury discrimination cases appear to blend 

"equal protection" and "due process" analysis without sharp 

distinction between the two. See, e.g. , Labat v. Bennett, 3 65 

F.2d 698 (5th Cir. 1966); Mitchell v. Johnson, 250 F. Supp.

117 (M.D. Ala. 1966). Cf. Ford v. White, 430 F.2d 951 (5th 

Cir. 1970); McMannaman v. United States, 327 F.2d 21 (10th 

Cir. 1964). At base, the jury selection decisions appear to 

rest on a formulation tailored to the special concerns entailed 

in safeguarding lay participation in our system of justice in 

a manner reflective of the larger community served.

In effect, courts have applied to the exclusion from jury 

service of any "cognizable group or class of qualified citi­

zens" the almost per se rule until recently reserved for dis­

crimination against blacks. Grimes v. United States, 391 F . 2d

-4-



709 (5th Cir. I960); see also McMannaman, supra. The excluded

group, to be considered "cognizable," must represent simply a 

"distinct class" in the community. In the seminal decision 

Hernandez v. Texas, 347 U.S. 475, 478 (1954), the Supreme Court 

stated:
Throughout our history differences in race and 
color have defined easily identifiable groups 
which have at times required the aid of the 
courts in securing equal treatment under the 
law. But community prejudices are not static, 
and from time to time difference from the com­
munity norm may define other groups which need 
the same protections.

Significantly, the Court pointed out in Hernandez that "the 

Fourteenth Amendment is not directed solely against discrimi­

nation due to a 'two-class theory' —  that is, based on dif­

ferences between 'white' and 'Negro'." Moreover, more recent 

.decisions have not required that excluded groups demonstrate 

discrimination against them in the community. Groups labelled 

"cognizable" include daily laborers, Labat v. Bennett, supra; 

members of any "economic class," Smith v. Yeager, 465 F .2d 272 

(3rd Cir. 1972); and non-alien Spanish-Americans, United States 

v. Pentado, 463 F .2d 355 (5th Cir. 1972).

Recognizing that "the two sexes are not fungible; a com­

munity made up exclusively of one is different from a community 

composed of both," Ballard v. United States, 329 U.S. 187, 193 

(1946) , a number of courts have characterized women as a "cog­

nizable group" for purposes of jury discrimination equal pro- 
tPo-Hnn analysis. Spp. e .g . . Smith v. Yeager, supra; White v. 

Crook, 251 F. Supp 401 (M.D. Ala. 1966). These courts have 

held unconstitutional discrimination against women in jury 

selection just as they have invalidated discrimination against 

other groups. Most significantly, the Supreme Court itself

-5-



has indicated its approval of this approach. In Peters v.

Kiff, 407 U.S. 493, 503 (1972), the Supreme Court stated:

When any large and identifiable segment of the 
community is excluded from jury service, the 
effect is to remove from the jury room quali­
ties of human nature and varieties of human ex­
perience, 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 . . . that 
their exclusion deprives the jury of a perspec­
tive on human events that may have unsuspected 
importance in any case that may be presented.

A. The Challenged Florida Jury Selection Pro­
visions Work an Invidious Discrimination.

With some notable exceptions, until the current decade, 

courts employed a narrow scope of review for equal protection 

challenges to legislation according different treatment to 

women and men. No line drawn between the sexes, however sharp, 

failed to survive constitutional assault. Gross generaliza­

tions concerning woman's place in man's world were routinely 

accepted as sufficient to justify discriminatory treatment.

See, e.g., Goesaert v. Cleary, 335 U.S. 464 (1948); Hoyt v. 

Florida, 368 U.S. 57 (1961).

In 1971, a new direction was signalled by the Supreme 

Court. In Reed v. Reed, 404 U.S. 71 (1971), the Court invali­

dated an Idaho statute that gave a preference to men over wo­

men for appointment as estate administrators. Explicitly re­

pudiating one-eyed sex role thinking as a predicate tor legis­

lative distinctions, the Reed opinion declared, "[the statute] 

provides that different treatment be accorded to the applicants 

on the basis of their sex: it thus establishes a classification

-6-



subject to scrutiny under the Equal Protection Clause." 404 

U.S. at 75. Recognizing that the governmental interest urged 

to support the Idaho statute was "not without some legitimacy," 

404 U.S. at 76, the Court nonetheless found the legislation 

constitutionally infirm because it provided "dissimilar treat­

ment for men and women who are similarly situated." 404 U.S. 
at 77.

Although the Reed opinion was laconic, it was apparent 

that the Court had departed from the "traditional" equal pro­

tection analysis familiar in review of social and economic 

legislation. Sex-based distinctions were to be subject to 

"scrutiny," a word until Reed typically reserved for race dis­

crimination cases where the term was paired with a requirement 

that the legislation meet a "compelling interest" standard. 

"Traditional" equal protection rulings, by contrast, mandated 

judicial tolerance of a legislative classification unless it 

is "patently arbitrary." McGowan v. Maryland, 306 U.S. 420,
426 (1961).

On May 14, 1973, in Frontiero v. Richardson, 411 U.S. 677, 

686, the Court made explicit the incurable flaw in governmental 
schemes that accord different treatment to males and females 

solely on the basis of their sex:

Since sex, like race and national origin, is an ̂ * X- —% l» 1 —. 1 — — .— * — .— “1 1 1 ’
xuUuu t.a i rr i s i i i ■ wr t i u i n tr# - --------- -------------------J. ~ J.
the accident of birth, the imposition of special 
disabilities upon the members of a particular 
sex because of their sex would seem to violate 
the basic concept of our system that legal bur­
dens should bear some relationship to individual 
responsibility. . . . And what differentiates 
sex from such non-suspect statuses as intelli­
gence or physical disability, and aligns it with

-7-



the recognized suspect criteria, is that the 
sex characteristic frequently bears no relation 
to ability to perform or to contribute to so­
ciety. As a result, statutory distinctions 
between the sexes often have the effect of in­
vidiously relegating the entire class of females 
to inferior legal status without regard to the 
actual capacities of its individual members.

Despite the obviously sweeping ramifications of .rejection of 

this pervasive legislative pattern, the Court was unwilling to 

perpetuate the distinction. The message of Frontiero is clear 

persons similarly situated, whether male or female, must be 

accorded even-handed treatment by the law. Legislative clas­

sifications may legitimately take account of need or ability; 

they may not be premised on unalterable sex characteristics 

that bear no necessary relationship to an individual's need, 

ability or life situation.

The plurality opinion in Frontiero, delivered by Justice 

Brennan, declares with unmistakable clarity that classifica­

tions based upon sex, like classifications based on race, 

alienage or national origin, are inherently suspect and must 

therefore be subject to close judicial scrutiny. While four 

justices characterized sex classifications as "suspect," Jus­

tice Stewart, concurring in the judgment, preferred to label 

the distinction "invidious." All of the Justices, save the 

lone dissenter, rejected "administrative convenience" as jus­

tification for dissimilar treatment of men and women.

Frontiero concerned, as this case does, the assumption 

that women are destined for the care of husbands, home and 

children, men for participation in the world outside the home. 

Law-sanctioned assumptions of this kind, that fail to account

-8-



for the substantial and dramatically increasing population of 

women and men who do not organize their lives according to the 

stereotype, have been relegated to the scrap heap by Frontiero.

Hoyt no longer impedes federal courts confronted with 

jury selection practices that exclude or exempt women.

For the Supreme Court has rejected "minimal rationality" 

equal protection analysis for legislation that establishes 

sex-based classifications. Such classifications are now 

recognized to be "suspect" or "invidious." Frontiero v .

Richardson, supra. Nor is this court required to wait until

the Supreme Court reconsiders and overrules Hoyt. In Healy

v. Edwards, 363 F. Supp. 1110 (E. D. La. 1973) (three-judge

court), declaring unconstitutional Louisiana's laws exempting

women from service on juries absent the filing of a written declaration

of desire to serve, the court acknowledged, quoting from Rowe

v. Peyton, 383 F. 2d 709, 714 (4th Cir. 1967), affirmed 391 U.S.

54 (1967), "there are occasional situations in which subsequent 

Supreme Court opinions have so eroded an older case, without explicitly 

overruling it, as to warrant a subordinate court in pursuing what 

it conceives to be a clearly defined new lead from the Supreme 

Court to a conclusion inconsistent with an older Supreme Court 

case." Healy concluded that Hoyt was "yesterday's sterile precedent" 

and considered it "no longer binding." 363 F. Supp, at 1117.

The court declared the provisions of law before it, which are 

analogous to those involved here, unconstitutional in that they 

were an "interference" with the right to a jury comprising a fair 

cross section of the population in violation of due process and 

denied women equal protection of the law.

-9-



B. Jury Selection Entails a Fundamental Right.

A three-judge court is mandated not only because of the 

invidious discrimination that the statute works but also be­

cause the case involves a question concerning a fundamental 

right —  the right to serve on a jury. The existence of a 

right to be eligible for jury service cannot be disputed —  

numerous decisions, in both actions by members of allegedly 

excluded classes and actions by litigants alleging improper 

indictment or trial, have plainly recognized it. These de­

cisions classify jury service as a "badge of citizenship" 

closely analogous to the vote. Carter v. Jury Commission, 396 

U.S. 320, 330 (1969); Mitchell v. Johnson, 250 F. Supp. 117, 

121 (M.D. Ala. 1966). While this right is not explicitly 

guaranteed by the words of the Constitution, an implicit guar­

antee may be identified, for the right to jury service is 

appropriately viewed as an essential Sixth Amendment accoutre­

ment, cf. Griswold v. Connecticut, 381 U.S. 479 (1965) , with­

out which the right to trial by an impartial jury of one's 

peers could not be secured.

C . The "Benign" Classification that Serves to 
Keep Women m  Their Place.

It might be argued by persons who overlook the harmful 

effects of "special treatment" for women that the question of

-10-



whether a "suspect" or "invidious" classification, or a "fun­

damental right" is involved in this case is irrelevant, at 

least insofar as it concerns female plaintiffs as potential 

jurors. For the nature of the classification, on surface in­

spection, may not appear invidious -- women are afforded the 

"special benefit" of not having to serve on juries. This su­

perficial assessment may explain the Court's unwillingness in 

Hoyt to consider classification of women in a context similar 

to this as "suspect" —  apparently, in the Court's view, Flo­

rida women were being advantaged by that classification. But 

absence of responsibility for jury service is hardly an un­

mixed blessing. Jury duty, as noted above, cannot be charac­

terized simply as a burden —  it is a vital right, a "crucial 

citizen responsibility," Broadway v. Culpepper, 439 F .2d 1253 

(5th Cir. 1971).

The automatic exemption from jury service which Florida 

extends to women is an indicator of second class citizenship, 

a reflection of the state's conception of women as a class 

not capable of shouldering the same civic rights and respon­

sibilities as men: "statutes exempting women from jury service 

. . . reflect the historical male prejudice against partici­

pation in activities outside the family circle." Johnston & 

Knapp, Sex Discrimination by Law: A Study in Judicial Perspec­

tive, 46 N.Y.U.L. Rev. 675, 718 (1971). In short, while the 

provisions challenged here do not work an absolute denial to 

women of their right to serve on juries, they are founded on a 

premise, similar to the premise once responsible for the ex-

-11-



elusion of blacks from juries, that women are not equipped to 

participate in important community affairs: the Florida pro­

visions betray "a view of woman's role which cannot withstand 

scrutiny under modern standards." Alexander v. Louisiana,

405 U.S. 625, 639-40' (1971)(concurring opinion).

A clear illustration of the invidious effect of the sup­

posedly "benign" classification is the response of a New 

York trial court in 1970 to the challenge of a female plain­

tiff to a jury system providing automatic exemption for any 

woman on request. Plaintiff's "lament," the judge stated, 

should be addressed to her sisters who prefer "cleaning and 

cooking, bridge and canasta, the beauty parlor and shopping, 

to becoming embroiled in plaintiff's problems. . ..." DeKosenko 

v. Brandt, 63 Misc.2d 895, 898, 313 N.Y.S.2d 827, 830 (Sup. Ct. 

1970). Ignored by the court was the fact that "neither man 

nor woman can be expected to volunteer for jury service," 

Alexander, supra at 643 (concurring opinion), that few persons, 

male or female, would voluntarily assume all the varied civic 

responsibilities imposed on them, and that in failing to re­

cognize women as persons with full civic responsibilities as 

well as rights, New York, like Florida, displays a view of 

women as something less than mature adult citizens.

No compelling state interest could possibly be advanced
f  fir i im  i rn '^ i m' nrf -r no r>yorir>r»4- <-«“ t  JZ 4. u -  _______________ _ _ _rr

*----------•* — - * . - * * 5  v—OV—1* C- ^  J - U O O x i XV^U. L.XWU « _L X. L11C U. J_ CS kJ J_

the classification is to provide for the care of young children, 

to ensure that they are not left without caretakers when their 

parents are called for jury service, the gross technique em­

-12-



ployed cannot pass constitutional muster, for it is at the 

same time appallingly overbroad and stereotypically under- 

inclusive. As the record in this case indicates, almost 

one-third of those women who chose the exemption held out­

side employment. R. 10 6, 1[ 2. Women whose children are in 

school and women whose children are cared for by others are 

accorded the same "special treatment" as women in fact re­

sponsible for the care of young children; men responsible for 

the care of young children are not part of the statutory clas­

sification. Other, far more appropriate alternatives are 

available to advance the legitimate interest in assuring care 

for young children, for example, jury laws which provide 

exemption for any "person" responsible for a young child's 

care. See N.J.S.A. § 93-1304(12), Thus, under strict scru­

tiny, the challenged jury laws and the classification they em­

body must necessarily be declared unconstitutional -- no com­

pelling interest can be advanced to support them, and other 

methods are available to the state to accomplish any legitimate 

objectives that the statute might serve.

Frontiero has expressly held that in the realm of "strict 

judicial scrutiny . . . any statutory scheme which draws a 

sharp line between the sexes, solely for the purpose of achiev­

ing administrative convenience necessarily commands 'dissimi­

lar treatment for men and women who are . . . similarly situated,' 

and therefore involves the very kind of arbitrary legislative 

choice forbidden by the Constitution." Reed v. Reed, supra at 

77» 76; Frontiero, supra at 690. The argument that women, as

-13-



housekeepers and mothers, do not hold jobs from which absence 

is manageable, ignores the reality that many women do not per­

form the housekeeper-mother role, that some who do perform that 

role have ample assistance at home, and that, particularly in 

young families, the home burden is increasingly shared by men 

and women. In Levy County fully 31% of the women who were ex­

empted from jury service in 1973 have some form of employment 

outside the home. R. 10 6, 1[ 2. The Hoyt image of women "as 

the center of home and family life," of dubious accuracy for 

many women in 1961, is today recognized as a stereotype of the 

same order as those firmly rejected as a basis for legislative 

line-drawing in Frontiero and Reed.

In 1972, 60% of all married women living with their hus­

bands were gainfully employed, and 42% of all working women 

were employed full-time the year round. U.S. Women’s Bureau, 

Dept, of Labor, Highlights of Women's Employment and Education 

(1973). Thus, the Florida jury service exemption for women 

covers a substantial population of wives and mothers for whom 

homemaking and child care concerns do not preclude active in­

volvement outside the home. The Florida classification is 

overinclusive and, under Frontiero and Reed, inevitably un­

constitutional. The legislative classification here challenged 

makes an arbitrary choice premised upon wholly mistaken concep­

tions of the role of women in today's world. If it ddvemces 

any legitimate objective, it does so in a manner inconsistent 

with equal protection standards.

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D » Male Plaintiffs Are Injured as a Matter of Law.

Male plaintiffs claim that the exemption from jury service 

extended to women by Florida constitutes an arbitrary, irra­

tional and overbroad classification, discriminating against 

them and the class they represent in violation of the equal 

protection clause of the fourteenth amendment. Recognizing 

the important "right" aspect of jury duty, these plaintiffs 

point out that jury service has its onerous side, that it is 

both "a right and a responsibility that should be shared by 

all citizens regardless of sex." White v. Crook, supra at 408. 

It is unconstitutional, they claim, to impose upon them, solely 

on the basis of their sex, so disproportionate a share of the 

'jury service right-responsibility.

The basic premise of the Frontiero and Reed decisions is 

that legislative classifications must treat men and women 

"similarly circumstanced" alike. The jury service exemption 

for women does not treat alike all "similarly circumstanced" 

persons —  women in precisely the same situation as men for 

purposes of the provisions are recipients of "special treat­

ment." This exemption places a burden upon men not justified 

by any fair and substantial relation to the statutory objective. 

The exemption overbroadly relieves women from sharing the bur­

den. Men and women similarly circumstanced with regard to an 

underlying purpose of the classification in that they are re­

sponsible for the care of small children are not treated alike. 

In sum, the classification does not advance a legitimate legis­

lative objective in a fashion consistent with the constitutional 
mandate. -15-



POINT II
THE WOMEN'S EXEMPTION RENDERS AN UNCONSTITUTIONAL 

RESULT IN LEVY COUNTY; THE DISTRICT COURT 
HAD JURISDICTION AND SHOULD HAVE DECIDED 
THE QUESTION IN FAVOR OF THE PLAINTIFFS

A. The Impact is Great-.

The population of Levy County in April of 1970 was 51% 

female (Florida Statistical Abstract 1973, Population, By Sex 

and Race, By Region and County, in Florida; Table 2.455), Yet 

from 1969 to 1973, an average of only 37% of the jury lists 
were female. R. 102.

Under the procedures employed by the defendants, each 

registered elector receives a questionnaire. See sample ques­

tionnaire, R. 94-95. As of April 23, 1973, the active file 

of returned questionnaires indicated that 623 women had 

exempted themselves under the provisions of Florida Statutes 

§ 40.01, which allows pregnant women and mothers of children 

under 18 to exempt themselves from jury service. R. 106.

Under the existing system, the names of 1,372 women were 

placed in the eligibility file, the file of those whose ques­

tionnaires indicated that they were eligible for jury service. 

R. 100. Assuming that the 623 women had no other basis for 

being exempt, 31% of the women eligible for service used the 

exemption to escape their civic obligation.

The rationality of this policy, to say nothing of a test 

of compelling state interest, is severely questioned by the 

fact that 195 of those who obtained the exemption indicated 

that they were employed outside the home. Sixty percent of 

all married women living with their husbands were gainfully

-16-



employed. U.S. Women's Bureau, supra.

B . No Three-Judge Court Need Be Convened.

No three-judge court is necessary because (1) no state 

officer is a defendant and (2) the plaintiffs are suffering 

from an unconstitutional result of a constitutional statute.

1. The Constitutionality of the Statute Itself 
is not Attacked, Only the Unconstitutional 
Results Reached When They are Enforced.

For purposes of § 2281, there'is a distinction to be 

drawn between direct attacks on the constitutionality of a 

statute and attacks on the unconstitutionality of the results 

obtained by the enforcement of a state statute. In the lat­

ter case, an injunction may be issued without concerning it­

self with the constitutionality of the statute and it is not 

required that a three-judge court be convened for disposition 

of the case. Anno., 15 L.Ed. 904, 918 (1966). The present 

case fits into this second category. Plaintiffs do not con­

tend in their alternative argument that the statutes under 

which defendants act are facially invalid. Plaintiffs do al­

lege that as a result of their enforcement in their particular 

county, illegal results are obtained.

The case law relating to this issue seems to be consis­

tent and no conflict between the circuits exists. The Second 

Circuit, in Astro Cinema Corp. v, Mackell, 422 F .2d 293 (2nd Cir. 

1970) , ruled that a three-judge court need not be convened if

-17"



the attack on the unconstitutionality of the results obtained. 

The Third Circuit reached the same result in Spencer v. Kugler, 

454 F .2d 839 (3rd Cir. 1972).

2. The Defendants are not "State Officers" for 
Purposes of § 2281.

The plaintiffs contend that for purposes of bringing into 

operation § 2281, the defendants here are not "state officers." 

Whether the officers sued are state officers depends not on 

the formal status of the officials, but on the sphere of their 

functions regarding the matters in issue. Rorick v. Board of 

Comm'rs of Everglades Drainage District, 307 U.S. 208 (1939).

In Rorick, a state officer was charged v.7ith certain duties under 

a state statute which had no statewide impact. His execution 

of the state statute only affected his locale. He was held not 

to be a state officer within the intendment of the predecessor 

of § 2281. Such is the case here. The defendants' execution 

of the state statutes involved here only affects Levy County.

Since § 2281 is a technical enactment and should be nar­

rowly construed, Phillips v. United States, 312 U.S. 246 (1941); 

Hall v. Garson, 430 F .2d 430 (5th Cir. 1970), the term "state 

officer" should be given its plain meaning and clearly complied 

with. A state officer is one with the authority to execute or 

administer a statewide policy. Stainback v. Mo Hock Ke Lok Po, 

336 U.S. 368 (1949). State officers are those officers who en­

force state laws that embody a statewide concern and the state's 

interest. They are not officers who, though acting under a

-18-



state law, do so only as local officials and on behalf of a 

locality. Cleveland v. United States, 323 U.S. 329 (1945),

It is clear that the defendants here do not possess the 

authority to execute or administer a statewide policy. Nor 

are their actions of statewide concern or impact. But they 

are officers who, though acting under a state statute, act 

only as local officials and on behalf of a locality. Defen­

dants' execution of its statutory duty plainly only affects 

Levy County. Its actions are not felt outside the boundaries 

of its locale. For purposes of § 2281, they are not state 

officers. There is no need to convene a three-judge panel.

Although the state of law in this area is inconsistent, 

unclear, and in a general condition of disrepair, there seems 

to exist a presumption that to be a state officer the indi­

vidual must be functioning in a state position and have an 

official state title. There have been a few exceptions carved 

out, though. For example, a police chief enforcing statutes 

of statewide application has been designated a state officer. 

Atkins v. Charlotte, 296 F. Supp. 1068 (W.D.N.C. 1969). But on the 

whole, there seems to be a requirement that the individual, 

to be designated a state officer, must have an official state 

title or position.

-19-



POINT III
THE DEFENDANTS HAVE DISCRIMINATED AGAINST BLACK 

CITIZENS AS A CLASS IN THE SELECTION OF 
___________ PERSONS FOR THE JURY LIST____________

The jury panel should represent a cross-section of the 

community, Carter v. Jury Commission of Greene County, 396 U.S. 

320 (1970); Williams v. Florida, 399 U.S. 78, 100 '(1970); Labat 

v . Bennett, 365 U.2d 698 (5th Cir. 1966). In Levy County, the 

source for the jury panel is the voter registration list. Sec­

tion 40.01, Florida Statutes states that "Grand and petit ju­

rors shall be taken from male and female persons . . . who are 
fully qualified electors."

In Carter v, Greene County, 396 U.S. 320 (1970), the Su­

preme Court held constitutional on its face the Alabama statute 

requiring jury commissioners to select for jury service those 

persons who are generally reputed to be honest and intelligent 

and esteemed in the community for their integrity, good charac­

ter and sound judgment. In a dictum the court alluded approv­

ingly to a number of traditional qualifications for potential 

jurors used by the several states. The Court did not discuss 

the requirement that persons selected for jury service be elec­

tors. More importantly, it was not faced with a record which 

indicated that voter registration would be a grave impediment 
to jury service.

While holding the statute constitutional on its farp. on 

the same day the Court in Turner v. Fouche, 396 U.S. 346 (1970), 

found a pattern and practice of discrimination. The Court 

found that 60% of the persons residing in the county were black, 

but only 37% of those on the jury list were black. Id. at 359.

-20-



This statistical disparity is the key to the finding of dis­

crimination. These two cases frame the appropriate considera­

tion of the claims of racial discrimination in this case.

Levy County is 25% black. R, 101, The lists of persons 

from which venires are chosen has varied between 7% and 18% 

from 1969 to 1973. R. 102. They have averaged 13.2%. This 

means that black strength or representation on juries is ap­

proximately 50% of what it should be. This is a much more 

dramatic statistical showing than in Turner v. Fouchef supra.

There are three different ways of remedying this depriva­

tion. Each way is signficiantly different.

A. Choose Blacks at a Rate Higher than Whites from 
the List of Electors

A constitutional result may be reached without tampering 

with the existing base for jurors —  the elector roll. The 

district court could correct the overrepresentation of whites 

and the underrepresentation of blacks on the voter registra­

tion list by drawing blacks at a higher rate than whites for 

the jury panel in order that the jury panel represent a cross- 

section of the community. Brooks v. Beto, 366 F .2d 1 (5th Cir. 

1966), is authority for drawing blacks at a higher rate. There 

the Court stated:
. . . [The Supreme] Court has never treated 

Cassell as a declaration against conscious inclu­
sion [of blacks] where this is essential to satis- 
fy constitutional imperative. Rather, it has Peen 
treated as a case of exclusion through a system of 
limited inclusion. . . . Id. at 21 (emphasis added).

. . . Although there is an apparent appeal to 
the ostensibly logical symmetry of a declaration 
forbidding race consideration in both exclusion and 
inclusion, it is both theoretically and actually 
unrealistic. Id. at 24.

-21-



B. Declare that the Florida Statute Limiting Jurors 
to Electors Produces an Unconstitutional Result 
and Mandate Selection of Blacks from Other Sources

In Pullam v. Greene, 396 F.2d 251, 257 (5th Cir. 1968), 

it was recognized that the constitutional command was "to place 

sufficient names on the jury list and in the jury box as to 

obtain a full cross-section of the county." A new Georgia 

statute on jury selection had been passed which made voter 

lists the presumptive source of names for the jury list. But 

this Court in looking at the record in the defendant county 

noted that only 13% of the voters were blacK while 55% of the 

population was black. The Court stated that it was "highly 

likely" that affirmative action would be necessary to compen­

sate for the inadequacies of the voter roll as a source of ju­

rors. Broadway v. Culpepper, 439 F .2d 1253 (Sth Cir. 1971), 

stands for the same proposition.

The difference in the Florida and Georgia statutes is that 

the Georgia statute permits use of other sources to supplement 

the yoter rolls, the Florida statute does not. But the result 

cannot be different. As Pullam states, these are "federal 

constitutional commands."

Because the results in Levy County are unusually severe• 

because of the low percentage of black persons registered to 

vote, this Court could hold that under the "unconstitutional 

result" doctrine of three-judge court jurisprudence, it is un­

necessary to convene a three-judge court. See Point II, supra.

C . The Court Could Hold that a Three-Judge Court Be
Convened to Adjudicate the Constitutionality of the 
Provision on its Face

-22-



The district court held the question of the constitution- 

ality Florida statute to be insubstantial as a matter
of law and failed to convene a three-judge court. The district 

court relied on Carter. R. 110-11. First, Carter did not 

speak to this question. At best, it spoke in dicta around the 

question. Second, and much more important, what Carter did 

not present and this case does is a factual context in which 

under the current system the limitation of jurors to electors 

necessarily yield an unrepresentative panel of jurors. 

Carter dealt with vague qualifications which if enforced in 

good faith could lead to a constitutional panel. Here we deal 

with a clear objective basis which absolutely precludes a cons­

titutional result under the procedures now in effect in Levy 

County, i.e., random selection from a population of electors.

CONCLUSION

Wherefore plaintiffs-appellants respectfully request that 

this court reverse the court below and order the convening of 

a three-judge court to adjudicate the constitutionality of 

Florida laws exempting women from jury service and 

rule that defendants-appellees have discriminated 

against black citizens in the selection of

-23-



persons for the jury lists or in the alternative enter its 

own order finding such statutes unconstitutional and granting 
the relief requested.

Respectfully submitted,

Kent Spriggs
118 N. Gadsden Street
Tallahassee, Florida 32301

Laughlin McDonald 
Emily Carssow 
Neil Bradley 
52 Fairlie Street, N.W. 
Atlanta, Georgia 30303

American Civil Liberties Union 
Foundation, Inc.

By s/Neil Bradley_______________
Neil Bradley

ATTORNEYS FOR PLAINTIFFS-APPELLANTS

Of Counsel:

Melvin L. Wulf
22 East 40th Street
New York, New York 10016

24-