Marshall v Holmes Brief of Appellants
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January 8, 1974

33 pages
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Brief Collection, LDF Court Filings. Marshall v Holmes Brief of Appellants, 1974. cc456814-bd9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/759e9cf2-f6d3-4436-bf6c-00422d85d18b/marshall-v-holmes-brief-of-appellants. Accessed June 17, 2025.
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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. -14- 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-