Carter v. Jury Commission of Greene County, Alabama Brief for Appellants

    In t h e

§>ttprpmp (Erntrt nt tljp Inft^ Btutzs
October Term, 1968

No. 908

W illie  C arter Sr., J o h n  H ead, R ev . P ercy M cS h a n ,

Appellants,
v.

J ury  Comm ission  oe G reene C o u n ty , A labam a , et al.,

Appellees.

on appeal  erom  th e  u nited  states district court

FOR T H E  N O R T H E R N  D ISTR IC T OE A L AB A M A

BRIEF FOR APPELLANTS

J ack  Greenberg 
N orman  C. A m aker  
J ames N . F in n ey

10 Columbus Circle 
New York, New York 10019

Orzell  B illin g sley , J r,
1630 Fourth Avenue, North 
Birmingham, Alabama 35203

Attorneys for Appellants



TABLE OF CONTENTS

PAGE

Opinion Below .......................................................   1

Jurisdiction .....      1

Constitutional and Statutory Provisions Involved ___ 2

Questions Presented ......       3

Statement of the Case ..... ................................................. 4

Summary of Argument ........ ....................... ......................  11

A rgum ent

I. Alabama’s Vague Statutory Standards for 
Selection of Prospective Jurors, by Vesting 
Uncontrolled Discretion In Jury Selecting 
Officials, Permit the Arbitrary Exclusion of 
Negroes On Racial Grounds In Violation of 
the Fourteenth Amendment to the Constitu­
tion of the United States ............... ...................  13

A. Introduction: The Impact Of Vague Stat­
utory Criteria For Jury Selection On The 
Problem Of Racial Discrimination In Jury
Selection ............................................ .............  13

B. The Applicability Of The Void-For-
Vagueness Doctrine To Racial Discrim­
ination In Jury Selection ......................... . 18

C. The Opportunity For Racial Discrimina­
tion Presented By Alabama’s Statute .....  22



11

PAGE

D. The Opportunity For Racial Discrimina­
tion Provided By Alabama’s Statute Has 
Been Resorted To ........................................  26

E. The Opportunity To Discriminate Pro­
vided By Alabama’s Statute Has Been 
Resorted To Throughout The State ....... 30

II. The Appointment of Only White Jury Com­
missioners Who Exercise the Excessive Dis­
cretion Granted Under Alabama Law Violates 
the Fourteenth Amendment to the Constitu­
tion of the United States ................................ . 33

Conclusion  ........................ .......... ...... .......... ........ ....... —-  38

A ppendix  ........ .............. — .......................-.......... -...... -........... —- la

T able of A u thorities

Cases:

Akins v. Texas, 325 U.S. 398 (1945) ......................... 14n, 16n
Anderson v. Alabama, 366 U.S. 208 (1961) (per

curiam) .............. ............ -..... -.... -....... -...... 14n, 31n
Anderson v. Georgia, 390 U.S. 206 (1968) (per curiam) 14n 
Anderson v. Johnson, 389 U.S. 819 (1967) (per curiam) 14n 
Anderson v. State, 270 Ala. 575, 120 So.2d 397 (1959).. 31n 
Arnold v. North Carolina, 376 U.S. 773 (1964) (per

curiam) ......... .......... ~............ .................. ......... ..... ........  14n
Auditorium, Inc. v. Board of Adjustment, 91 A.2d 528

(Del. 1952) ....... ..... .............. .................. .......... ......... . 19n
Avery v. Georgia, 345 U.S. 559 (1953) ......... .................  14n

Banks, et al. v. Holley, C.A. 735-E (M.D. Ala. 1967).... 32n 
Barnes v. Merritt, 376 F.2d 8 (5th Cir. 1967) ............... 19n



Ill

Billingsley v. Clayton, 359 F.2d 13 (5th Cir. 1966
en banc) ............................................... —............ -...........  32n

Black v. Coxwell, C.A. 5025-68-P (S.D. Ala.) .... ......... . 32n
Board of Supervisors v. Ludley, 252 F.2d 372 (1958).... 22 
Bokulich, et al. v. Jury Commission of Greene County,

Alabama, et al., CA No. 66-562 (N.D. Ala.) ............ . 5
Bokulich v. Jury Commission of Greene County, Oct.

Term 1968, No. 1255 Misc......................... ....... ........... -  5
Bostick v. South Carolina, 386 IJ.S. 479 (1967) .....—  14n
Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966) .........13,16n, 22,

25, 35, 36n
Brown v. Allen, 344 U.S. 443 (1953) ......... ...... .......... 14n, 20
Brunson v. North Carolina, 333 U.S. 851 (1948) (per

curiam) ..... ....... ....... ..... — ...... ........ ........... -......... ......  14n
Burstyn v. Wilson, 343 U.S. 495 (1952) ....— ............. . 18n
Bush v. Kentucky, 107 U.S. 110 (1883) ...........................  14n
Bush, et al. v. Woolf, C.A. 68-206 (N.D. Ala. 1968) ...... 32n

Cantwell v. Connecticut, 310 U.S. 296 (1940) ...............  18n
Carter v. Texas, 177 U.S. 442 (1900) .......... ..... ........ —- 14n
Cassell v. Lexington Twp. Board of Zoning Appeals,

163 Ohio St. 340, 127 N.E.2d 11 (1955) ..................... 19n
Cassell v. Texas, 339 U.S. 282 (1950)  ........— 14n, 16n, 23
Cline v. Frink Dairy Company, 274 U.S. 445 (1927) .... 18n
Cobb v. Georgia, 389 U.S. 12 (1967) (per curiam) ------ 14n
Coleman v. Alabama, 377 U.S. 129 (1964) — 4 ,14n, 29, 31n 
Coleman v. Alabama, 280 Ala. 509, 195 So.2d 800

(1967) ............................................................................. -  31n
Coleman v. Alabama, 389 U.S. 22 (1967) (per curiam)

4 ,13,14n, 29,31n
Coleman v. Barton, CA 63-4 (N.D. Ala. June 10, 1964)

10, 28, 29, 35
Cordts v. Hutton Co., 146 Misc. 10, 262 NYS 539, aff’d 

without opinion 266 NY 399 (1932) ........ ................. - 19n

PAGE



IV

Croddock v.’ Bedsole, C.A. 940-S (M.D. Ala. (1968)).... 32n

Dennard, et al. v. Baker, C.A. 2654-N (M.D. Ala. 1968) 32n

Eubanks v. Louisiana, 356 U.S. 584 (1958) .............14n, 24n
Ex Parte Virginia, 100 U.S. 339 (1880) ......................... 14n

Fay v. New York, 332 U.S. 261 (1947) .......................... 16n
Fikes v. Alabama, 263 Ala. 89, 81 So.2d 303 (1955),

rev’d on other grounds, 352 U.S. 191 (1957).......26n, 27n,
31n

Franklin v. South Carolina, 218 U.S. 161 (1910) .....11,14n,
16,16n,17

Gelling v. Texas, 343 U.S. 960 (1952) ....... ....... .............  18n
Gibson v. Mississippi, 162 U.S. 565 (1896) ............... 14n, 16n
Giles v. Alabama, 384 F.2d 383 (5th Cir. 1967) _______  32n
Gilmore v. Greene County Democratic Party Execu­

tive Committee, CA 66-341 (N.D. Ala.) ..................... 29n
Glicker v. Michigan Liquor Control Commission, 160

F.2d 96 (6th Cir. 1947) ...... ............ ....... ....... ...............  19n
Good, et al. v. Slaughter, C.A. 2677-N (M.D. Ala.

1968) ........ ................................ ....... .............. - ..... ..........  92n
Gray v. Main, —— F. Supp. ------  (not yet reported)

(M.D. Ala. No. 2430-N, March 29, 1968) ...................  25
Green v. State, 73 Ala. 26 (1882) ....................................  31n
Griffin v. California, 380 U.S. 609 (1965) ........ ......... . 26

Hadnott v. Amos, No. 647, Oct. Term 1968, 37 LT.S.L.
Week 4256 (March 25, 1969) ................................ 4, 21, 37

Hadnott, et al. v. Narramore, C.A. 2681-N (M.D. Ala.
1968) .................. ............. .... ....... ....... .............................  32n

Hague v. C.I.O., 307 U.S. 496 (1939) ........................... 1 Hit, 27
Hale v. Kentucky, 303 U.S. 613 (1938) (per curiam).... 14n

PAGE



V

Hernandez v. Texas, 347 U.S. 475 (1954) ......... ...... 14n, 16n
Herndon v. Lowry, 301 U.S. 242 (1937) .......................  18n
Hill v. Texas, 316 U.S. 400 (1942) ...............................14n, 23
Hollins v. Oklahoma, 295 U.S. 394 (1935) (per curiam) 14n 
Holmes v. New York City Housing Authority, 398 F.2d

262 (2nd Cir. 1968) ....... ............ .............. ....... .............  19n
Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964) ..........  19n
Huff, et al. v. White, C.A. 68-223-N (M.D. Ala.) .......... 32n

Jones v. Georgia, 389 U.S. 24 (1967) (per curiam) .....  14n
Jones, et al. v. Holliman, C.A. 3944-65 (S.D. Ala) ____ 32n
Jones, et al. v. Wilson, C.A. 66-92 (N.D. Ala.) pending 

on appeal sub nom Salary v. Wilson (No. 25978, 5th 
C ir .) .............. .................. ................. ................. ......... . 32n

Kunz v. New York, 340 U.S. 290 (1951) ........................  18n

Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966) ...........  34
Lockett v. Chappell, C.A. 68-768 (N.D. Ala.) ............. . 32n
Louisiana v. United States, 380 U.S. 145 (1965) ..... ..11,12,

20, 20n, 27, 34

Mallisham v. Kyle, C.A. 69-85 (N.D. Ala.) .................. 32n
Martin v. Texas, 200 U.S. 316 (1906) ........ .......... .........  14n
McNab, et al. v. Griswold, C.A. 2653 (M.D. Ala. 1968).. 32n
Michel v. Louisiana, 350 U.S. 91 (1955) ........................  14n
Millhouse v. State, 232 Ala. 567, 168 So. 665 (1936) .... 31n 
Mitchell v. Johnson, 250 F. Supp. 117 (M.D. Ala. 1966) 31n 
Murray v. State of Louisiana, 163 U.S. 101 (1896)_...14n, 16n

Neal v. Delaware, 103 U.S. 370 (1881) ...................... 14n, 15
Niemotko v. Maryland, 340 U.S. 268 (1951) ...... ..... ....  18n
Nixon v. Parker, C.A. 65-619 (N.D. Ala.) ..................... 32n
Nobels v. Waid, C.A. 68-618-M (N.D. Ala.) .................  32n

PAGE



V I

PAGE

Norris v. Alabama, 294 U.S. 587 (1935) ..............— 14n, 31n
Norris v. State, 229 Ala. 226, 156 So. 556 (1934) ...........  31n

Orleans Parish School Board v. Bush, 242 F.2d 156 
(5th Cir. 1957) ................................................................  22

Palmer, et al. v. Davis, C.A. 967-S (M.D. Ala.) ...........  32n
Palmer, et al. v. Steindorff, C.A. 2679-N (M.D. Ala.

1968) ..................................................................................  32n
Patterson v. Alabama, 294 U.S. 600 (1935) ................... 14n
Patton v. Mississippi, 332 U.S. 463 (1947) ..........   14n
Peterson v. Hagan, 351 P.2d 127 (Wash. 1960) .........-  19n
Pierre v. Louisiana, 306 U.S. 354 (1939) ......    14n
Powell v. State, 224 Ala. 540, 141 So. 201 (1937) .........  31n
Preston, et al. v. Mandeville, C.A. 5059-68 (S.D. Ala.).. 32n 
Pullum v. Greene, 396 F.2d 251 (5th Cir. 1968) ...........  23

Rabinowitz v. United States, 366 F.2d 34 (5th Cir.
1966) ...................................................... ...........................  17

Reece v. Georgia, 350 U.S. 85 (1955) ............... ...............  14n
Reese, et al. v. Pickering, C.A. 3839-65 (S.D. Ala. 1968) 32n 
Reeves v. State of Alabama, 264 Ala. 476, 88 So.2d 561

(1956) .......................... ..................................................... 31 n
Richardson, et al. v. Wilson, C.A. 68-300 (N.D. Ala.).... 32n 
Rodriguez v. Brown, CA No. 68-206-SA (W.D. Texas) 16n
Rogers v. Alabama, 192 U.S. 226 (1904) .................. 14n, 31n
Ross v. Texas, 341 U.S. 918 (1951) (per curiam) .........  14n

Schnell v. Davis, 336 U.S. 933 (1949), affirming 81
F. Supp. 872 (S.D. Ala. 1949) .................. ...... .............  20

Seals v. State of Alabama, 213 So.2d 645 (1968) .........  31n
Shuttlesworth v. City of Birmingham, 37 U.S. Law 

Week 4203 (March 10, 1969) .......................................  18n



Vll

Slattery v. Caldwell, 83 N.J. Super. 317, 199 A.2d 670
(1964) ....... .............. .............................. ...........................  19n

Smith v. Mississippi, 162 U.S. 592 (1896) .................... . 14n
Smith v. Texas, 311 U.S. 128 (1940) .................... _....14n, 16n
Soglin v. Kaufman, 37 U.S.L.Week 2357 (W.D. Wise.

Dec. 13, 1968) .... ......... ..... ............. ..... ..........................  19n
South Carolina v. Katzenbach, 383 U.S. 301 (1966) .....  20
Staub v. City of Baxley, 355 U.S. 313 (1958) ............ 18n
Strauder v. West Virginia, 100 U.S. 303 (1880)....13,14n, 15 
Sullivan v. Georgia, 390 U.S. 410 (1968) (per curiam) 14n
Sumbry v. Williams, C.A. 763-E (M.D. Ala. 1968) .... . 32n
Swain v. Alabama, 275 Ala. 508, 156 So.2d 368 (1963).. 31n
Swain v. Alabama, 380 U.S. 202 (1965) ...................14n, 31n

Tarrance v. Florida, 188 U.S. 519 (1903) ....................... 14n
Taylor v. Moore, 303 Pa. 469, 154 A. 799 (1931) .....    19n
Taylor v. State, 213 So.2d 836 (1968) ..................    31n
Terry v. Adams, 345 U.S. 461 (1953) ...... ......................  37
Thomas v. Texas, 212 U.S. 278 (1909) ..... .................... . 14n
Turner v. Fouche, No. 842 (Oct. Term 1968) _______15,15n
Turner v. Spencer, 261 F. Supp. 542 (S.D. Ala, 1966) 

(consolidated from cases which arose in Perry, Hale 
and Wilcox Counties) ................................. .............. 31n, 33

PAGE

United States v. Alabama, 192 F. Supp. 677 (M.D. 
Ala.), aff’d 304 F.2d 583 (5th Cir. 1962), aff’d 371
U.S. 37 (1962) ............ ............................ .......... .............  20

United States v. Atkins, 323 F.2d 733 (1963) ............... 22
United States v. Duke, 332 F.2d 759 (1964) ................... 21
United States v. L. Cohen Grocery Co., 255 U.S. 81

(1921) ........................................................................... 18n
United States v. Mississippi, 339 F.2d 679 (1964) ....... 21



Vlll

United States v. Mississippi, 380 U.S. 128 (1965) .......  20
United States, ex rel. Goldsby v. Harpole, 263 F.2d 71

(1959) ......................................... -...... -.................... ........  21
United States ex rel. Seals v. Wiman, 304 F.2d 53 (5th 

Cir. 1962) ......................................................................  -  32n

Vaughn v. State, 235 Ala. 80, 177 So. 553 (1937) -------  31n
Vernon v. State, 245 Ala. 633, 18 So.2d 388 (1944) ------ 31n
Virginia v. Rives, 100 U.S. 313 (1880)   .—................. 14n

White v. Crook, 251 F. Supp. 401 (M.D. Ala. 1966) ...... 31n
Whitus v. Georgia, 385 U.S. 545 (1967) .........12,14n, 22, 26
Williams v. Mississippi, 170 U.S. 213 (1898)  ~.......  16n
Williams v. Georgia, 349 U.S. 375 (1955) —  - .......  H 11
Winters v. New York, 333 U.S. 507 (1948) ............ -.....  18n
Witcher v. Peyton, 405 F.2d 725  ............ — ...................  24
Wood v. Brush, 140 U.S. 278 (1891) ......... .......... -........ - Hn

Yick Wo v. Hopkins, 118 U.S. 356 (1886) .......... ............  26n

Zimmerman v. Maryland, 336 U.S. 901 (1949) (per 
curiam) ........................................... -...............................  l^n

Federal Statutes:

28 U.S.C. § 1253 ............. ...................... -.............................  2

28 U.S.C. § 1331 ............................... ..... -.... -......................  1

28 U.S.C. § 1343 ........ ........ ........... ................. -................ -  1

28 U.S.C. § 2101(b) ............. ......... ......... ..................... -....  2

28 U.S.C. § 2201 .......... ...................... ........................ .. ....  1

28 U.S.C. § 2202 ...................... ..................................... ..  1

28 U.S.C. § 2281........ ............ ....... .......... .... .......................  1, 2

PAGE



28 U.S.C. § 2283 ............................................ .....................  1

28 U.S.C. § 2284 .............. ...... ....................... .....................  1, 2

42 U.S.C. § 1981 ......................... ..... ...................................  1

Jury Selection and Service Act of 1968 (P.L. 90-274,
90th Cong., March 27, 1968) ........................................  17

Voting Rights Act of 1965 .... ............... .............. 17n, 20, 37n

State Statutes:

Alabama Code, Title 30 § 9 ...... ........ ...... .............. ..2, 3, 6, la

Alabama Code, Title 30 § 10 .................................... 2, 3, 6, la

Alabama Code, Title 30 § 18 ........................................ 3, 6, la

Alabama Code, Title 30 § 20 ........................................ 3, 6, 2a

Alabama Code, Title 30 § 21 (1958) ...............2, 3, 4, 5, 6,10,
11,18, 30, 32

Alabama Code, Title 30 § 2 4 .................. ............. 3, 6, 27n, 3a

Alabama Code, Title 30 § 30 ............................................ 3, 4a

Other Authorities:

H.R. 14765, 89th Cong., 2nd Sess. (1966) ....................... 15n

Kuhn, Jury Discrimination: The Next Phase, 41
Southern Cal. L. Rev. 235 (1968) ........................ 15n, 25

Note: “The Congress, The Court and Jury Selection:
A Critique of Titles I and II of the Civil Rights Bill
of 1966/’ 52 Va. L. Rev. 1069 (October 1966).......15n, 20,

20n, 26, 26n,30

ix

PAGE



X

PAGE

“Political Participation,” Report of the United States 
Commission on Civil Rights (1968) .... ......................  36

Statement of Hon. Irving R. Kaufman, Hearings on 
8 . 1318 before the Subcomm. on Improvements in 
Judicial Machinery of the Senate Comm, on the 
Judiciary, 90th Cong1., 1st Sess. (1967) ..................... 17



1st th e

GJmtrt of %  luifefc States
October Term, 1968 

No. 908

W illie  Carter S r ., J ohn  H ead, R ev . P ercy M gS h a n ,

Appellants, 
v.

J ury  C omm ission  of G reene C o u n ty , A labam a , et al.,

Appellees.

on appeal from  th e  united  states district court

FOR T H E  N O R T H E R N  D ISTRICT o f  ALABAM A

BRIEF FOR APPELLANTS

Opinion Below

The opinion of the District Court for the Northern Dis­
trict of Alabama is not yet reported. The opinion is printed 
in the Appendix at pp. 346-369.

Jurisdiction

This is an action for injunctive and declaratory relief in 
which the jurisdiction of a district court of three judges 
was invoked under 28 U.S.C. §§ 1331, 1343, 2201, 2202, 2281, 
2283 and 2284, and under 42 U.S.C. § 1981 to vindicate and 
enforce rights of the plaintiffs guaranteed by the due proc­
ess and equal protection clauses of the Fourteenth Amend­



2

ment alleged to be violated by a statute of the state of 
Alabama (Title 30, § 21) governing the qualifications of 
jurors and by the practice of appointing only white jury 
commissioners by the State’s Governor pursuant to Title 
30, §§9 and 10, Code of Alabama (1958), as amended. A 
statutory three-judge court was convened pursuant to 28 
U.S.C. §§2281, 2284 (A. 28).

The final judgment of the Court below entered Septem­
ber 13, 1968, inter aUa, adjudged that there was systematic 
exclusion of Negroes from jury rolls of Greene County, 
Alabama, by reason of purposeful discrimination and en­
joined the jury commission, its clerk, and agents from 
such exclusion. However, the Court upheld the constitution­
ality of the challenged statutory provision and also refused 
relief with respect to the racial composition of the jury 
commission.

Notice of appeal on behalf of appellants Carter, Head, 
McShan, and the class they represent was timely filed on 
November 7, 1968 (28 U.S.C. § 2101(b) (A. 374). The 
Jurisdictional Statement was filed and the appeal was 
docketed January 6, 1969. Probable jurisdiction was noted 
March 3, 1969 (A. 378). Jurisdiction of the Court is in­
voked pursuant to 28 U.S.C. § 1253.

Constitutional and Statutory Provisions Involved

This action involves the Fourteenth Amendment to the 
Constitution of the United States.

The primary statutory provision involved is Code of 
Alabama Title 30, Section 21, as amended which reads as 
follows:

“ The jury commission shall place on the jury roll and 
in the jury box the names of all citizens of the County



3

who are generally reputed to be honest and intelligent 
and are esteemed in the community for their integrity, 
good character and sound judgment; but no person 
must be selected who is under twenty-one or who is 
an habitual drunkard, or who, being afflicted with a 
permanent disease or physical weakness is unfit to 
discharge the duties of a juror; or cannot read En­
glish or who has ever been convicted of any offense 
involving moral turpitude. I f  a person cannot read 
English and has all the other qualifications prescribed 
herein and is a freeholder or householder his name may 
be placed on the jury roll and in the jury box. No 
person over the age of sixty-five years shall be re­
quired to serve on a jury or to remain on the panel 
of jurors unless willing to do so. When any female 
shall have been summoned for jury duty she shall have 
the right to appear before the trial judge, and such 
judge, for good cause shown, shall have the judicial 
discretion to excuse said person from jury duty. The 
foregoing provision shall apply in either regular or 
special venire.”

The following additional provisions are material to an 
understanding of the issues presented: Code of Alabama, 
Title 30, Sections 9, 10, 18, 20, 24 and 30. These enactments 
are set out in full in the Appendix at pp. la-4a, infra.

Questions Presented

I. Whether Code of Alabama, Title 30 § 21 is unconsti­
tutionally vague in violation of the Fourteenth Amendment 
because its requirement that jurors be persons “who are 
generally reputed to be honest and intelligent and are 
esteemed in the community for their integrity, good char­
acter and sound judgment”  provides Alabama jury officials 
with the opportunity to discriminate on racial and other



4

grounds, an opportunity shown by the record to have been 
resorted to in this case?

II. Whether the appointment of only white jury com­
missioners in Greene County, Alabama, a county with a 
large majority black population is unconstitutional where:

(A) the white jury commissioners have resorted to the 
opportunity, provided by statute, to discriminate on racial 
grounds and have over a number of years consistently 
failed to produce jury rolls representative of the black 
majority population, and

(B) the appointment of black jury commissioners is 
needed to correct the effects of past discrimination and 
prevent its recurrence in the future, and

(C) the appointment of black commissioners will assure 
the representative participation of members of the county’s 
majority citizens in the jury selection process!

Statement of the Case

This case, on appeal from a three-judge district court 
for the Northern District of Alabama, challenges the con­
tinuation of racial discrimination in Alabama’s jury selec­
tion process by a statute (Code of Ala., Tit. 30 § 21) whose 
juror selection standards give excessive discretion to white 
jury officials to exclude all but a token number of Negroes 
from the opportunity for jury service. It arises from 
Greene County, Alabama, the locus of Coleman v. Alabama, 
377 U.S. 129 (1964) (Coleman 1) ;  389 U.S. 22 (1967) (Cole­
man II), the latter case holding (in the context of the 
criminal prosecution of a Negro defendant) that appellees 
here had discriminated racially in the jury selection proc­
ess and, more recently, of Iladnott v. Amos, No. 647, Oct. 
Term 1968, 37 U.S.L. Week 4256 (March 25, 1969) in which



0

this Court held that black candidates for county and state­
wide offices had been illegally excluded from the ballot.

The suit was filed below sub now, BokuMch, et al. v. Jury 
Commission of Greene County, Alabama, et al., CA No. 
66-562 (N.D. Ala.) on September 22, 1966 (A. 12). Appel­
lants here are Negro citizens of Greene Couffiy who, as 
plaintiffs in the court, below, represented the class of all 
Negroes potentially eligible for jury service in the county. 
They sought relief against the continued exclusion by the 
defendant jury commissioners and clerk o f eligible Negro 
citizens of the county from jury service on racial grounds. 
They also challenged the constitutionality on its face of 
Title 30 § 21 of the Alabama Code and alleged that “ the 
segregated, all-white Defendant J ury  Com m ission  op 
G-beenb  C ounty , A labam a ( “ J u ry  C om m ission” ) is uncon­
stitutionally constituted” (A. 12). In their prayer, they re­
quested an injunction against enforcement of the statute 
and against the continued appointment of only white per­
sons to the Greene County Jury Commission (A. 26).

Other plaintiffs in the district court, Paul Bokulich, and 
intervening plaintiffs, Greene and Brown, sought an injunc­
tion against their criminal prosecutions in the state courts 
because of the alleged racial discrimination in the county’s 
jury selection process. Though the three-judge district 
court, which was designated September 29, 1966 (A. 28) 
because of the attack on the constitutionality of the juror 
selection statute, held that there was racial discrimination 
(A. 371), this relief was denied (ibid.). On appeal here 
that portion of the district court’s judgment was affirmed 
(Bokulich v. Jury Commission of Greene County, Oct. 
Term 1968, No. 1255 Misc.) (March 3, 1969).

After depositions of the jury commissioners were taken 
(A. 31, 107) and an answer filed (A. 29), trial was held on



6

June 6, 1967 (A. 119). At the trial, the evidence was that 
the clerk of the Greene County Jury Commission had 
served in that capacity for “ twelve or thirteen years” (A. 
224) and that since she had been clerk all members of the 
jury commission were white as was she (A. 177). Under 
Title 30 § 21, the jury commission is charged with the 
duty of making the initial selection of juror names. The 
commission, pursuant to Title 30 § 9, is composed of “ three 
members who shall be qualified electors of the county in 
which they are appointed and shall be persons reputed for 
their fairness, impartiality, integrity and good judgment.” 
Its members are appointed by the Governor (Code of Ala., 
Tit. 30 § 10) who was a defendant in the action. Their 
duties are described in detail in Title 30 §§ 20 (2a) and 
24 (3a) and the duties of the clerk are set forth in Title 
30 §18 (la ). The primary responsibility of these officials 
is to choose from among the sources set forth in Title 30 
§ 24 the names of persons who, in their judgment, are 
eligible for jury service under the criteria of section 21, 
to include those names on the jury roll and to place cards 
corresponding to the names on the jury roll in a jury box 
from which the venires for trial are subsequently drawn. 
In preparing the jury roll the commissioners are directed 
to choose persons “ who are generally reputed to be honest 
and intelligent and are esteemed in the community for 
their integrity, good character and sound judgment . . . ” 
(Code of Ala., Title 30 § 21), the statutory provision chal­
lenged here. Neither this statute nor any other provision 
of Alabama law provides standards for guiding the com­
missioners choices.

The jury clerk testified at the trial that persons were put 
into the jury box “ if there is nothing morally wrong with 
them and they are people of average intelligence” (A. 36). 
As far as Negroes were concerned, the clerk and the com­



7

missioners “made a conscientious effort” to place on the 
jury roll those “who were capable of serving that were 
clean morally” (A. 40). People “ that were thought to be 
all right” (A. 61) were selected as potential jurors; people 
that were “ sensible people as far as I know, or as far as 
the people that put them in their knew” (A. 102). The clerk 
(who is also the clerk of the circuit court) testified that 
she did not know the reputations of most Negroes in Greene 
County and that the reputations she did know were “mainly 
. . . the ones who have been in trouble”— “the bad repu­
tations” (A. 208) and in at least one of the precincts she 
visited for the purpose of securing juror names, the only 
Negroes she knew were a few of the bootleggers (A. 201) 
but not any who were “ respectable” (A. 202). She nor any 
of the jury commissioners had any social contact with 
Negroes (A. 185, 234).

One of the commissioners stated in his deposition that 
he and the other jury officials looked into “bad moral 
character” (A. 117) and very often relied on someone 
else’s judgment as to whether a person was “morally all 
right and so forth” (A. 115). Indeed because, as the com­
missioner testified, “ our knowledge [of Neg*roes] is limited” 
(A. 116), the commissioners used the subjective judgment 
of other people who the commissioners thought had “high 
principles and high standards” (A. 117) to determine if 
a person was fit for jury service. This jury commissioner 
was unable to say what standards he used for determining 
whether a person was a qualified ju ror:

“Now, what we consider qualified, that is something 
else. Actually you may be off in the way you are 
thinking of qualified, I don’t know” (A. 116).

This commissioner also testified that he, personally, was 
not well acquainted with the Negro community (A. 234).



8

After the commissioners and jury clerk have applied 
their subjective judgment (or that of someone else) to 
selecting potential jurors, they meet each year in August 
to make up the jury roll and fill the jury box (A. 35). In 
August 1966, one of the commissioners was sick and did 
not take part in this process (A. 54), another was new to 
the job and supplied no names (A. 56), and a third brought 
a few names listed on the back of a bill he had received 
(A. 56-57, 210, 211, 357). In summarizing the efforts of 
the jury officials in securing the names of potential jurors, 
the court below said:

The clerk does not obtain the names of all potentially 
eligible jurors as provided by § 18, in fact was not 
aware that the statute directed that this be done and 
knew of no way in which she could do it.

*  # *

Almost all of the work of the commission is devoted 
to securing names of persons suggested for considera­
tion as new jurors. The clerk performs some duties 
directed toward securing such names.

# # #
The commission members also secure some names, 

but on a basis no more regular or formalized than the 
efforts of the clerk.

* #
One commissioner testified that he asked for names 

and that if people didn’t give him names he could not 
submit them.

* *
The same commissioner considered that Negroes are 
best able to judge which Negroes are good and out­
standing citizens and best qualified for jury service.



9

that the best place to get information about the Negro 
citizen is from Negroes. He takes the word of those 
who recommend people, checks no further and sees no 
need to check further, considering that he is to rely 
on the judgment of others. He makes no inquiry or 
determination whether persons suggested can read or 
write, although § 21 excludes persons who cannot read 
English. Neither commissioners nor clerk have any 
social contacts with Negroes or belong to any of the 
same organizations, (court’s footnotes omitted). (A. 
354-356).

The results of these efforts were summarized in the 
court’s opinion.1 The court also noted the results of the 
most recent compilation of the jury roll made at a special 
meeting in January 1967 after the suit was filed and after 
Alabama’s law was changed to permit the service of women 
on juries.2 Census data for these periods were also noted

1

White Males 
on

Composition of Jury Rolls, 
1961-66 (Males Only)

i % of 1960 Negro males 
Pop. (white on

% of 1960 
Pop. (Negro

Year Jury Rolls males) Jury Rolls males)
1961 337 43% 16 .7%
1962 348 45% 26 1%
1963
1964

349 45% 28 1%

1965 382 49% 47 2%
1966 389 50% 82 4% (A.

2 “ The January, 1967 meeting of the jury commission increased 
the number of whites and Negroes, a substantial part of the, increase 
coming from inclusion of females for the first time. Whites on the 
roll increased to 810, which was 49% of the 1960 census figure for 
adult white males and females. Negroes on the roll increased to 
388, which was 7% %  of the 1960 census figure for adult Negro 
males and females” (A. 360).



10

in. the court’s opinion.3 Based on the results of the jury 
selection process over this period, results which had not 
substantially improved despite a declaratory judgment re­
quiring more effective administration of the state’s juror 
selection laws to include Negroes (Coleman v. Barton, CA 
63-4 (N.D. Ala. June 10, 1964)), the court held:

. . . that Negro citizens of Greene County are discrim- 
inatorily excluded from consideration for jury service, 
in violation of the equal protection clause of the Four­
teenth Amendment, and that Tit, 30, § 21 has been un­
constitutionally applied as to them. (A. 365)

The relief granted was an injunction against systematic 
exclusion of Negroes from the jury roll of Greene County, 
an order requiring that a new jury roll showing the race 
and, if available, the age of each juror be filed with the 
court within 60 days and a report showing the procedures 
used in compiling it (A. 372).

However, the district court rejected appellants’ conten­
tions that the statutory criteria contained in Title 30, § 21

1960 Census, Greene County, 
Persons Over 21 Years of Age

White
%

White Negro
%

Negro
Male 775 26% 2247 74%
Female 874 24% 2754 76%

Total 1649 5001
“ There was testimony that by 1967, through migration of Ne­
groes, the population ratio for all Negroes and all whites had 
decreased to 65%-35%. Assuming that this, change was re­
flected in the numbers of adults as in non-adults, and that the 
number of adult whites remained approximately constant, then 
the approximate number of adult Negroes in the county (male 
and female) had declined from 5001 to 3065, of whom approxi­
mately 12%% were on the rolls in 1967 after the January spe­
cial meeting” (A. 360). "



11

were unconstitutionally vague (A. 366, 371) and also denied 
relief with respect to the racial composition of the jury 
commission (A. 365, 372).

Summary of Argument

I.
The problem of discrimination against Negroes in jury 

selection in state courts— one of the oldest known to this 
Court—persists today largely because of vague statutory 
criteria which permit white jury officials to use their sub­
jective judgment (and that of others who are also not 
amenable to law) to decide what Negroes shall be listed 
for possible jury service. Alabama has such a statute 
(Code of Alabama, Title 30 §21 (1958)) and it has been 
used by white jury officials in Greene County, Alabama 
with its southern racial traditions to discriminate against 
Negroes in the county’s jury selection process.

In most of the cases in this Court, the constitutionality 
of these statutes has not been raised or where raised, e.g., 
Franklin v. South Carolina, 218 U.S. 161 (1910), there was 
no factual record to support the fact of racial exclusion by 
resort to the vague statutory criteria. That is not so here. 
In any case, it is doubtful whether Franklin and other cases 
in which the Court assumed the validity of statutes grant­
ing discretionary authority to jury officials have any re­
maining authority in light of this Court’s application of the 
void-for-vagueness doctrine to racial discrimination prob­
lems particularly in the voting field, e.g., Louisiana v. 
United States, 380 U.S. 145 (1965). Indeed, the cases in 
which the doctrine developed demonstrate an appreciation 
for the deleterious effect on constitutional rights of the 
use of arbitrary power in official hands and the cases have 
involved a number of differing factual situations.



12

Alabama’s statute gives its jury officials the “ opportunity 
for discrimination,” Whitus v. Georgia, 385 U.S. 545, 552 
(1967) on many levels but principally empowers them, in 
the context of racially segregated southern society, to im­
port their assumption of Negro racial inferiority into the 
process of selecting jurors. The results of the jury selec­
tion process in Greene County over a number of years 
show that the opportunity for discrimination has been 
resorted to in fact and these results demonstrate a need for 
a change in law requiring the use of objective criteria for 
jury selection not merely a change in the procedures by 
which the present statute is administered, the only relief 
deemed appropriate by the district court. This conclusion 
is reinforced by the enormous amount of litigation over 
the question of racial discrimination in jury selection 
throughout the state of Alabama showing that the oppor­
tunity for racial discrimination provided by the statute has 
been resorted to by jury officials all over the State.

II.
The excessive discretion granted under Alabama’s stat­

ute was exercised by all-white jury officials in Greene 
County and these officials consistently failed to produce a 
representative cross-section of the county’s population of 
which blacks form a large majority. Uncontroverted proof 
showed that, during all the years in which the great por­
tion of this Negro majority had been excluded from jury 
service, the officials involved were white. This fact and 
the proof of racial discrimination made necessary an in­
junction requiring the appointment of black jury commis­
sioners in Greene County as a necessary component of re­
lief which would eliminate the discriminatory effects of the 
past and bar similar discrimination in the future. Louisiana 
v. United States, supra. Appointment of black jury com­



13

missioners would mean not only official representation of 
the Negro majority, which would go far toward curing the 
demonstrated discrimination in jury selection, cf. Brooks 
v. Beto, 366 F.2d 1, 23 (5th Cir. 1966 en banc), but would 
comport with the ideal of a democratic society in which 
people take part in decisions affecting their own lives. This 
relief is critical in a community like Greene County in 
which Negroes have historically been barred from partici­
pation in the public life of the community.

ARGUMENT

I.

Alabama’s Vague Statutory Standards for Selection of 
Prospective Jurors, by Vesting Uncontrolled Discretion 
In Jury Selecting Officials, Permit the Arbitrary Exclu­
sion of Negroes On Racial Grounds In Violation of the 
Fourteenth Amendment to the Constitution of the 
United States.

A. Introduction: The Impact Of Vague Statutory Criteria
For Jury Selection On The Problem Of Racial Discrimi­
nation In Jury Selection.

The problem of racial discrimination in the jury selection 
process in state courts is an old one. This Court first dealt 
with it almost 90 years ago in Strauder v. West Virginia, 
100 U.S. 303 (1880), a case in which the Court held a West 
Virginia statute excluding members of the Negro race from 
jury service unconstitutional on its face. Strauder and the 
vast number of cases that have appeared in this Court 
since then including, recently, Coleman v. Alabama, 389 
U.S. 22 (1967) (which also arose as does this case from 
Greene County, Alabama) firmly establish the principle of 
the illegality of racial exclusion in the state jury selection



14

process. However, as the long, long line of cases that have 
appeared in this Court for the past 90 years attest,4 * this 
problem is among the most persistent known to our con­
stitutional regime.

The question then arises: why, despite the repeated as­
sertion by this Court as a matter of constitutional law un­
der the Fourteenth Amendment of a rule barring racial 
exclusion of Negroes as a class from jury service has not

4 Sirauder v. West Virginia, 100 U.S. 303 (1880); Virginia v. 
Rives, 100 U.S. 313 (1880) ; Ex Parte Virginia, 100 TJ.S. 339 
(1880) ; Neal v. Delaware, 103 U.S. 370 (1881) ; Bush v. Kentucky, 
107 U.S. 110 (1883); Wood v. Brush, 140 U.S. 278 (1891); Gibson 
v. Mississippi, 162 U.S. 565 (1896) ; Smith v. Mississippi, 162 U.S. 
592 (1896) ; Murray v. State of Louisiana, 163 U.S. 101 (1896) ; 
Carter v. Texas, 177 U.S. 442 (1900); Torrance v. Florida, 188 
U.S. 519 (1903) ; Rogers v. Alabama, 192 U.S. 226 (1904) ; Martin 
v. Texas, 200 U.S. 316 (1906); Thomas v. Texas, 212 U.S. 278 
(1909) ; Franklin v. South Carolina, 218 U.S. 161 (1910) ; Norris 
v. Alabama, 294 U.S. 587 (1935) ; Patterson v. Alabama, 294 U.S. 
600 (1935) ; Hollins v. Oklahoma, 295 U.S. 394 (1935) (per 
curiam) ; Hale v. Kentucky, 303 U.S. 613 (1938) (per curiam) ; 
Pierre v. Louisiana, 306 U.S. 354 (1939); Smith v. Texas, 311 U.S. 
128 (1940); Hill v. Texas, 316 U.S. 400 (1942); Akins v. Texas, 
325 U.S. 398 (1945); Patton v. Mississippi, 332 U.S. 463 (1947) ; 
Brunson v. North Carolina, 333 U.S. 851 (1948) (per curiam) ; 
Zimmerman v. Maryland, 336 U.S. 901 (1949) (per curiam) ; 
Cassell v. Texas, 339 U.S. 282 (1950); Ross v. Texas, 341 U.S. 918 
(1951) (per curiam) • Brown v. Allen, 344 U.S. 443 (1953) ; Avery 
v. Georgia, 345 U.S. 559 (1953) ; Hernandez v. Texas, 347 U.S. 475 
(1954) ; Williams v. Georgia, 349 U.S. 375 (1955); Reece v. Georgia, 
350 U.S. 85 (1955) ; Michel v. Louisiana, 350 U.S. 91 (1955) ; 
Eubanks v. Louisiana, 356 U.S. 584 (1958) ; Anderson v. Alabama, 
366 U.S. 208 (1961) (per curiam) ; Arnold v. North Carolina, 376 
U.S. 773 (1964) (per curiam) ; Coleman v. Alabama, ‘i l l  U.S. 129 
(1964) ; Swain v. Alabama, 380 U.S. 202 (1965); Whit us v. Georgia, 
385 U.S. 545 (1967); Bostick v. South Carolina, 386 U.S. 479
(1967) (per curiam); Cobb v. Georgia, 389 U.S. 12 (1967) (per 
curiam) ■ Coleman v. Alabama, 389 U.S. 22 (1967) (per curiam) ; 
Jones v. Georgia, 389 U.S. 24 (1967) (per curiam); Anderson v. 
Johnson, 389 U.S. 819 (1967) (per curiam); Anderson v. Georgia, 
390 U.S. 206 (1968) (per curiam) ; Sullivan v. Georgia, 390 U.S. 
410 (1968) (per curiam).



15

the problem abated?6 This case provides the answer.6 It 
challenges what appellants believe is the major cause of 
the continuing phenomenon of racial exclusion in the jury- 
selection process: state statutory criteria which give to of­
ficials responsible for the initial source listing of the names 
of potential jurors uncontrolled discretion to determine 
the persons who, in their subjective judgment, are “ fit” for 
jury service.7

Statutes such as the one involved in this case and in 
Turner, though not in terms requiring the exclusion of Ne­
groes as did the statute in Strauder, supra, have been used 
to effect the identical result (see D. below).

In most of the jury discrimination eases in this Court 
since Nealy. Delaware, 103 U.S. 370 (1881) which held that 
racial discrimination by officials administering a state stat­
ute presumed fair on its face was unconstitutional, the

6 The need for congressional legislation to deal with this problem 
was recognized by former President Johnson by submission of Title 
II of the proposed Civil Rights Bill of 1966 which dealt with state 
jury selection procedures. The bill was passed by the House (H.R. 
14765, 89th Cong., 2nd Sess. (1966)) but failed to pass in the 
Senate. Other portions of that bill have subsequently been enacted 
into law but the section concerning state jury selection has not been 
passed.

6 See also Turner v. Fouche, No. 842 (Oct. Term 1968).
7 As two recent commentators viewing the problem in its modern 

setting have put i t : “ It is this broad discretion located in a non­
judicial officer which provides the source of discrimination in the 
selection of juries.” Note: The Congress, The Court, And Jury 
Selection: A Critique Of Titles 1 And II  Of The Civil Bights Bill 
Of 1966, 52 Va. L. Rev. 1069, 1078 (Oct. 1966) ; “ Certainly in those 
areas—not all in the South—in which discrimination has existed, 
criteria which lend themselves to discrimination should not be per­
mitted to withstand the charge that their vagueness is impermis­
sible. At the very least, a history of racial imbalance on juries 
coupled with the existence of such a ready means for discrimination 
gives rise to the presumption that the means has been employed.” 
Kuhn, “Jury Discrimination: The Next Phase,”  41 So. Cal. Law 
Rev. 235, 282 (1968).



16

question of the discriminatory effect of statutory language 
giving jury selecting officials broad discretion was not 
raised. A notable exception is Franklin v. South Carolina, 
218 U.S. 161 (1910) cited by the district court (A. 366) in 
which this Court sustained a South Carolina statute against 
an attack identical to the one here made on Alabama’s stat­
ute, that it conferred arbitrary power upon jury commis­
sioners in selecting jurors. 218 U.S. at 167-68.8 But surely

8 Two earlier cases, Gibson v. Mississippi, 162 U.S. 565, 589 
(1896) and Murray v. Louisiana, 163 U.S. 101, 108 (1896) cited by 
the Franklin court contained language which gave colorable sup­
port to the Franklin holding. The statement in Gibson, however, 
was dictum since the issue v/as whether Mississippi’s juror selecting 
provisions were ex post facto and in Murray, the appellant alleged 
that Louisiana’s statute conferred “ judicial powers” upon the jury 
commissioners not that they had exercised discretion in a discrim­
inatory fashion. In any event, in these cases as well as in Franklin, 
the Court was not confronted, as here, with a record showing the 
discriminatory effect of the application of the statutory standards. 
Cf. Williams v. Mississippi, 170 U.S. 213 (1898) (see part D 
below).

In later cases, in which the issue also was not raised, this Court 
has merely assumed without argument or inquiry the continuing- 
validity of statutory provisions granting discretion to jury officials. 
Smith v. Texas, 311 U.S. 128, 130-131 (1940); Akins v. Texas, 325 
U.S. 398, 402-403 (1945) ; Fay v. New York, 332 U.S. 261, 272 
(1947) ; Cassell v. Texas, 339 U.S. 282, 284 (1950); Hernandez v. 
Texas, 347 U.S. 475, 478-79 (1954). All these cases except Fay 
dealt with Texas’ system for selecting grand jurors. It is ques­
tionable whether, if challenged (as it now has been—Rodriguez v. 
Brown, CA No. 68-206-SA, W.D. Texas (pending before three- 
judge court)), that system could be sustained today (see concurring 
opinion of Wisdom, J. in Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966 
en banc), part III of the opinion at 28-29). In any event, in both 
Smith ( “by reason of the wide discretion permissible in the various 
steps of the plan, it is . . . capable of being applied in such a man­
ner as practically to proscribe any group thought by the law’s ad­
ministrators to be undesirable,” 311 U.S. at 131) and Akins ( “ This 
method of selection leaves a wide range, of choice to the commis­
sioners,” 325 U.S. at 403), the Court has recognized that statutes 
such as that in suit here are capable of being used in a discrim­
inatory way. It is our submission that the problem of discrimina­
tory jury selection will not be solved until that capability is ex­
punged.



17

in light of the later development by this Court of the 
vagueness doctrine and its applicability to the problem of 
racial discrimination in the voting area (see Part B immedi­
ately following), such authority as Franklin may once have 
possessed has been eroded.

If there is any lesson apparent from the continual reap­
pearance in this Court of cases alleging racial discrimina­
tion in jury selection,9 surely it must be that the vast dis­
cretion given jury officials by state statutes to select whom 
they please as prospective jurors has been used to discrim­
inate on racial grounds against Negro citizens. As Judge 
Kaufman of the Second Circuit told a Senate committee in 
1967:

“ . . .  long experience with subjective requirements such 
as ‘intelligence’ and ‘common sense’ has demonstrated 
beyond doubt that these vag'ue terms provide a fertile 
ground for discrimination and arbitrariness, even when 
the jury officials act in good faith.” Statement of Hon, 
Irving R. Kaufman, Hearings on S. 1318 before the 
Subcomm. on Improvements in Judicial Machinery of 
the Senate Comm, on the Judiciary, 90th Cong., 1st 
Sess. at 251 (1967).

Already, Congress, following Rabinowitz v. United States, 
366 F.2d 34 (5th Cir. en banc 1966) which condemned the 
manner in which federal jury selectors used the key man 
system has dealt with this problem in the federal courts 
by passage of the Jury Selection and Service Act of 1968 
(P.L, 90-274, 90th Cong., March 27, 1968) which has re­
moved practically all discretion from the hands of federal 
jury officials.10 But, as the volume of litigation shows, the

9 See note 4 supra. In all except a handful of eases, this Court 
lias found discrimination to exist.

10 The Voting Rights Act of 1965, with its automatic “ triggering” 
formula and ban on state registrars’ use of “ tests and devices,” has



18

most serious impact of unbridled discretion has been felt 
in state jury selection, that all-important process on the 
outcome of which has often depended— and still depends— 
the very lives of black people in America.

B. The Applicability Of The Void-For-Vagueness Doctrine To 
Racial Discrimination In Jury Selection.

The unfettered discretion in selecting prospective jurors 
given Alabama’s jury commissioners by Alabama Code, 
Tit. 30 § 21 is akin to that given state officials in many 
other situations in which this Court has determined that 
the exercise of such discretion was unconstitutional be­
cause of the opportunity provided for using subjective 
judgment to make arbitrary or discriminatory decisions af­
fecting important constitutional rights. The too-discretion- 
giving statute, ordinance, regulation, etc., has usually been 
voided on vagueness grounds—vague in the sense that the 
provisions voided were lacking in standards sufficiently 
definite to guide official action or amounted to no stan­
dards at all.11 Courts in other jurisdictions, following this

accomplished the same thing in the voting area. Voting and jury 
service have been the two areas in which Negro rights have been 
most severely hampered by the power of local officials exercising 
discretion (see below n. 14).

11 United States v. L. Cohen Grocery Co., 255 U.S, 81 (1921) 
(economic regulation legislation— “unjust or unreasonable rate” 
for “ necessaries” ) ; Cline v. Frink Dairy Co., 274 U.S. 445 (1927) 
(economic regulation legislation— “reasonable profit” ) ; Herndon v. 
Lowry, 301 U.S. 242 (1937) (free speech and assembly— “ insur­
rection” ) ; Hague v. C.I.O., 307 U.S. 496 (1939) (granting of 
parade permit— “riots, disturbances or disorderly assemblage” ) ; 
Cantwell v. Connecticut, 310 U.S. 296 (1940) and Niemotko v. 
Maryland, 340 U.S. 268 (1951) [both religious freedom—grant of 
license] ; Winters v. New York, 333 U.S. 507 (1948); Burstyn v. 
Wilson, 343 U.S. 495 (1952); Gelling v. Texas, 343 U.S. 960 (1952) 
(per curiam) [all movie censorship] ; Kunz v. New York, 340 U.S. 
290 (1951) (religious freedom); Staub v. City of Baxley, 355 U.S. 
313 (1958) (free expression— administrative licensing) ; Shuttles- 
worth v. City of Birmingham, No. 42, Oct. Term 1968, 37 U.S.L. 
Week 4203 (March 10, 1969) (same—parade permit).



19

Court’s lead, have also applied the void-for-vagueness doc­
trine in several contexts to require ascertainable objective 
standards for official action.12 The application of the vague­
ness doctrine as a remedy for the persistent problem of 
racial discrimination in jury selection is particularly apt in 
light of statutes like Alabama’s in which the nexus between 
the vague morality, intelligence, and character standards 
and significant racial exclusion can be demonstrated. The 
vice of statutory vagueness is even more insidious where 
the statute serves as a means for weaving attitudes regard­
ing racial inferiority into the fabric of justice as admin­
istered by state courts. “Discriminations against a race by 
barring or limiting citizens of that race from participation

12 Peterson v. Hagan, 351 P.2d 127 (Wash. 1960) (labor regula­
tions—section of Washington State minimum wage, law giving di­
rector unlimited power voided for failure to provide standards for 
promulgation of rules); Holmes v. New York City Housing Au­
thority, 398 F.2d 262 (2nd Cir. 1968) (housing administration-— 
held that selection among applicants for public housing must be 
made in accordance with ascertainable standards: “ It hardly need 
be said that the existence of an absolute and uncontrolled discretion 
in an agency of government vested with the administration of a 
vast program . . . would be an intolerable invitation to abuse.” 
398 F.2d at 265); Soglin v. Kaufman, 37 U.S.L. Week 2357 (W.D. 
Wise., Dee. 13, 1968) (student discipline—-University of Wisconsin’s 
regulation prohibiting “ misconduct” held to violate Fourteenth 
Amendment due process clause) ; Auditorium, Inc. v. Board of 
Adjustment, 91 A.2d 528 (Del. 1952), Cordts v. Hutton Co., 146 
Misc. 10, 262 NYS 539, aff’d without opinion 266 NY 399 (1932); 
Taylor v. Moore, 303 Pa. 469, 154 A. 799 (1931), Slattery v. Cald­
well, 83 N.J. Super. 317, 199 A.2d 670 (1964), Cassell v. Lexington 
Twp. Board of Zoning Appeals, 163 Ohio St. 340, 127 N.E.2d 11 
(1955) [zoning ordinances held invalid where line of demarcation 
between areas restricted to different uses insufficiently indicated by 
ordinance or zoning map] ; Hornsby v. Allen, 326 F.2d 605 (5th 
Cir. 1964), Glicker v. Michigan Liquor Control Commission, 160 
F.2d 96 (6th Cir. 1947), Barnes v. Merritt, 376 F.2d 8 (5th Cir. 
1967) [liquor licensing—denial of liquor license under law devoid 
of ascertainable standards governing grant or denial unconstitu­
tional] .



2 0

in jury service are odious to our thought and our Constitu­
tion.” Broivn v. Allen, 344 U.S. 443, 470-471 (1953).13

In dealing with the problem of racial discrimination in 
its southern context, this Court has readily perceived the 
impact of vague statutory criteria on realization of the 
Negro’s constitutional right to vote. “ In voting rights . . . 
as in jury selection, the primary problem has been the vast 
discretion vested in the local registrar.” Note, 52 Ya. L. 
Rev., supra, n. 7 at. 1141.14 Appellants here urge the Court 
to adopt the same approach in this case as it used in cases 
such as Louisiana v. United States, 380 U.S. 145 (1965); 
United States v. Mississippi, 380 U.S. 128 (1965); Schnell 
v. Davis, 336 U.S. 933 (1949) (per curiam), affirming 81 
F. Supp. 872 (S.D. Ala.), in which the Court recognized 
that local voter registrars in the South were abusing their 
discretion and, in fact, exercising arbitrary power to refuse 
to register Negroes to vote. See also United States v. Ala­
bama, 192 F. Supp. 677 (M.D. Ala.), aff’d 304 F.2d 583 (5th 
Cir. 1962), aff’d 371 U.S. 37 (1962) (per curiam). And, in 
summarizing after passage of the 1965 Voting Rights Act 
the effect on Negro voting of tests used by local registrars, 
this Court commented in South Carolina v. Katsenbach, 383 
U.S. 301, 312-13 (1966): “ The good morals requirement is

_13 It obviously makes no difference whether the forbidden racial 
discrimination is accomplished by the statute’s explicit terms or 
language sufficiently elastic to permit officials to discriminate. 
Louisiana v. United States, 380 U.S. 145 (1965).

14 As the same commentator has put i t :
Voting and jury service are the two most common instances 
of direct citizen participation in government. The most deeply 
rooted problems in both areas stem from the alienation of the 
Negro from the general affairs of the community, particularly 
in the South. 52 Va. L. Rev. at 1140.

The alienation has largely been accomplished by the use of exces­
sive discretion in the hands of white officials.



21

so vague and subjective that it has constituted an open 
invitation to abuse at the hands of voting officials.” More 
recently, in Eaclnott v. Amos, this Court again reinforced 
the position of these earlier cases:

We deal here with Fifteenth Amendment rights 
which guarantee the right of people regardless of their 
color or political persuasion to cast their votes effec­
tively and with First Amendment rights which include 
the right to band together for the advancement of 
political beliefs. Williams v. Rhodes, 393 U.S. 23. While 
the regulation of corrupt practices in state and fed­
eral elections is an important governmental function, 
we refuse to accept a reading of an Act which gives 
such a loose meaning to words and such discretionary 
authority to election officials as to cause Fifteenth and 
First Amendment rights to be subject to disparate 
treatment. No. 647 Oct. Term 1968, 37 U.S. Law Week 
4256, 4257 (March 25, 1969).

The method of using tests requiring the ability to under­
stand and interpret sections of the federal and state con­
stitution as a precondition of voting differs little from that 
of official use of standards such as whether a person is 
“generally reputed to be honest and intelligent . . . and . . . 
esteemed in the community for . . . integrity, good char­
acter, and sound judgment.” The Fifth Circuit, with its 
particularly clear perspective in the matter of racial dis­
crimination, has long recognized the relation between jury 
selection and voting rights. United States, ex rel. Goldshy 
v. Harpole, 263 F.2d 71 (5th Cir. 1959); United States v. 
Mississippi, 339 F.2d 679, 681 (5th Cir. 1964); United States 
v. Duke, 332 F.2d 759, 763 (5th Cir. 1964) and has also re­
quired that voting registrars adopt uniform objective stan­
dards in applying statutory tests to Negro applicants,



22

United States v. Atkins, 323 F.2d 733 (5th Cir. 1963). And, 
recognizing the potential for racial discrimination, that 
court has adopted a similar approach in the area of the ad­
mission of blacks to public schools and state-supported col­
leges and universities. Board of Supervisors v. Ludley, 252 
F.2d 372 (5th Cir. 1958), (statute requiring certificate of 
“good moral character” invalid); Orleans Parish School 
Board v. Bush, 242 F.2d 156 (5th Cir. 1957) (pupil assign­
ment statute held to contain no ascertainable standards to 
guide discretion).

These cases recognize that in “the reality of . . .  the segre­
gated world,” Brooks v. Beto, 366 F.2d 1, 12 (5th Cir. 1956), 
southern white officials having the power at their disposal 
to limit the participation of Negroes in the public affairs 
of the community have seized the “ opportunity for dis­
crimination,” Whitus v. Georgia, 385 U.S. 545, 552 (1967), 
presented by standards for jury selection such as those 
involved in this case.

C. The Opportunity For Racial Discrimination Presented By 
Alabama’s Statute.

Even if the “ reality of the segregated world” with white 
racial attitudes of Negro inferiority could be ignored, the 
vague criteria of Alabama’s statute are constitutionally 
objectionable on other grounds, e.g., standards such as 
these permit discrimination on a variety of nonracial bases, 
economic, religious, associational (officials administering 
such a statute can select only their friends or the friends 
of friends) and even if the administration of the statute 
were totally in the hands of black men (see Argument II 
below) it is conceivable that black officials given the same 
opportunity for exercising subjective judgment, could simi­
larly discriminate on these and other grounds not only 
against whites (and this is certainly true in Greene County



23

where blacks are a majority) but also among other Negroes 
whose participation in jury service was unwanted.15

However, the reality of the segregated world cannot be 
ignored; this case involves the typical situation of white 
men discriminating against black men and women because 
the State’s statute has made it possible for them to do so. 
It has made it possible for them in several ways. First, it 
is possible for each jury commisioner to have different 
standards for determining what persons are “honest and 
intelligent” and have “ integrity, good character and sound 
judgment.” Cf. Pullum v. Greene, 396 F.2d 251, 255 (5th 
Cir. 1968). Second, the statute provides the opportunity 
not only for each commissioner to act on his prejudices but 
on his ignorance as well. Cf. Hill v. Texas, 316 U.S. 400, 
404:

Discrimination can arise from the action of com­
missioners who exclude all negroes whom they do not 
know to be qualified and who neither know nor seek 
to learn whether there are in fact any qualified to 
serve. In such a case discrimination necessarily results 
where there are qualified negroes available for jury 
service.

and Cassell v. Texas, 339 U.S. 282, 289 (1950);

“When the commissioners were appointed judicial 
administrative officials, it was their duty to familiarize 
themselves fairly with the qualifications of the eligible 
jurors of the county without regard to race or color. 
They did not do so here, and the result has been racial 
discrimination.” (see part D below) 16

16 Appellant’s firm position is that whoever is responsible, for the 
initial selection of prospective jurors must be guided by objective 
standards.



24

Third, Alabama’s statute makes it possible for the jury 
commissioners to operate on their feeling of racial infe­
riority of Negroes since the statute directs the commis­
sioners to select only those persons “ generally reputed to 
be honest and intelligent, . . . and . . . esteemed in the 
community for their integrity, good character and sound 
judgment.” Given the racial traditions of Greene County 
Alabama,16 few black men and women, to the commis­
sioners’ way of thinking, would be able to meet these 
standards.17 As the Fourth Circuit recently said in Witcher 
v. Peyton, 405 F.2d 725, 727:

“Although innocuous on its face, the purpose of 
both judge and jury commissioners to include only 
‘the best qualified people’ and their disinclination to 
put persons on at random meant inevitably that the 
venires would be heavily weighted in favor of white 
people and against the inclusion of qualified Negroes. 
It should not surprise anyone that an all-white jury 
commission guided by a white judge would be unlikely 
to find as high a proportion of the Negro community 
to be ‘best qualified’ as found among white people. 
It is a simple truth of human nature that we usually 
find the ‘best’ people in our own image, including, 
unfortunately, our own pigmentation.”

Fourth, the statute further enables white jury commis­
sioners in a county such as Greene in which blacks out­
number whites by 2-1 to act on their fears of a black “ take­

16 Cf. jEubanks v. Louisiana, 356 U.S. 584, 588 (1958):
[Negro service on juries was] “ controlled by a tradition and 
the general thinking of the community as a whole [was] under 
the influence of that tradition.”

17 One commissioner’s comments were typical: “ We were born 
and raised with these people and we have done all we know how 
and treated them right” (A. 58). (Emphasis supplied.)



25

over,” to reinforce their historically nurtured persuasion 
that white people must maintain control of the community’s 
official life. Cf. Gray v. Main, CA 2430-N (M.D. Ala., 
March 29. 1968) (not yet reported) in which an Alabama 
district judge, considering a challenge to voting procedures 
in connection with the 1966 Alabama primary election in 
which a substantial number of Negroes voted for the first 
time commented:

The three counties, Macon, Bullock, and Barbour, 
have heavy Negro populations. Macon and Bullock 
have more adult Negroes (1960 census) than whites. 
Since Reconstruction days there were no elected Negro 
office holders in these counties until the early 1960’s.

# # #

As for the defendants and the white population of 
Bullock County, the transition from dominant political 
control of their elected officials to the prospect of shar­
ing or losing this control to the Negro population, 
with a great number of those registered being illiter­
ate and untrained, was undoubtedly a searing emo­
tional experience. (Slip opinion pp. 40, 41)

Fifth, and as a corollary to the point, previously made, the 
Alabama jury selection statute empowers the jury commis­
sioners to select only those Negroes (when they select them 
at all) deemed to be “ safe,” cf. Brooks v. Beto, 366 F.2d 1, 
27 (5th Cir. 1966) (concurring opinion of Judge W isdom ); 
to reject a Negro thought “uppity” (as for example one 
who tried to register to vote or engaged in a protest dem­
onstration). Cf. Kuhn, op. cit. n. 7 at 271 (1968). In this 
last aspect the opportunity to discriminate on racial 
grounds in jury selection tends to impair other constitu­
tional rights, i.e., the right to vote and the right to free



26

expression by making their exercise costly. Cf. Griffin v. 
California, 380 U.S. 609, 614 (1965).

Thus, in all these ways the State of Alabama has given 
its jury officials the opportunity for racial discrimination 
condemned in Whitus v. Georgia, supra. Moreover, these 
opportunities to discriminate occur after the commissioners 
have first exercised the discretion— also given them by the 
statute—to select from among the various sources to which 
the statute directs the commissioners for securing the 
names of the prospective jurors. See note, 52 Va. L. Rev. 
at 1079.18 Thus, the Alabama statute has provided the 
opportunity to discriminate on many levels and it is clear 
that in this case that opportunity has been resorted to.

D. The Opportunity For Racial Discrimination Provided By- 
Alabama’s Statute Has Been Resorted To.

Though, for the reasons stated above in part C, a statute 
furnishing the opportunity for abuse of the excessive dis­
cretion granted is void no matter who the officials are ad­
ministering it, (the protection of constitutional rights ought 
not to depend on the cast of the die which determines what 
individuals will at any given moment be invested with the 
responsibility for jury selection),19 nevertheless a record

18 In Fikes v. Alabama, 263 Ala. 89, 81 So.2d 303, 309 (1955), 
rev’d on other grounds, 352 U.S. 191 (1957), the Alabama Supreme 
Court held that the statutory direction to include the names of all 
eligible persons on the jury roll did not mean literally that every 
qualified person’s name must appear on the roll or in the jury box. 
Obviously, this means that all the sources of names mentioned in 
the statute need not be consulted. In this case, all sources were not 
in fact consulted (A. 355).

19 “ . . . if the law does not provide an appropriate definition of 
and limitation upon the. exercise of discretion by a governmental 
agency, the grant of power is void.” “ The Congress, The Court and 
Jury Selection, etc.,”  supra n. 7 at 1146 citing Yick Wo v. Hopkins, 
118 U.S. 356, 369-70 (1886).



27

which clearly discloses that the threatened abuse has ac­
tually occurred (cf. Hague v. C.I.O., 307 U.S. 496 (1939); 
Louisiana v. United States, supra) demonstrates beyond 
question the degree to which the constitutional right of non­
discrimination in jury selection is vitiated by statutory 
vagueness. Such is the record in this case, a record that 
leaves no doubt that the all-white jury commissioners in 
Greene County used their discretion to exclude the county’s 
black citizens.

The three-judge district court found as a fact that the 
three jury commissioners and the clerk did not obtain or 
even attempt to obtain the name of every person in the 
county who was potentially eligible for jury duty as re­
quired by law20 (A. 354). In other respects, the degree of 
dedication to the task of securing juror names manifested 
by these officials was less than remarkable. Thus, as the 
court found: (1) not all of the sources of names to which 
the Alabama Code directs jury-selecting officials were con­
sulted (A. 355), a fact which, as noted above, combined with 
the qualification standards to produce the resulting dis­
crimination; (2) that neither the commission members nor 
the clerk attempted to secure names on any regular or 
formalized basis (A. 355); (3) that the commissioners just 
“ask[ed] around” in the counties where they lived and se­
cured names chiefly from whites (ib id .); (4) another com­
missioner asked for names and if  people didn’t give him 
any he didn’t submit any (A. 356) ; (5) the same commis­
sioner took the word of persons who recommended people 
and saw no need to check further (ib id .); (6) none of the 
commissioners or the clerk had any social contacts with 
Negroes or belonged to any of the same organizations 
(ibid.).

20 Code of Alabama, Tit. 30, § 24. But see Fikes v. Alabama, 
supra, n. 18.



28

Appellants submit that these findings were less a con­
sequence of the demonstrated lack of energy on the com­
missioners’ part than a consequence in combination of (1) 
a long-standing and customary modus operandi on the 
part of the jury officials; (2) a way of life (part of “ the 
reality of the segregated world” ) that kept knowledge of 
Negro names except those who had been “in trouble” 
(A. 355) away from the jury officials, and (3) a system of 
statutory selection which enabled the community customs 
and way of life to take effect through the exclusion of 
Negroes from the jury roll. These findings are amply sup­
ported by the record (A. 36, 115, 236, 116, 234).

When the results of the system set in motion by the 
statute are examined, the real meaning of the effect of 
the vague statutory criteria is exposed. Thus, up to 1964, 
the date of Coleman v. Barton in which a single district 
judge entered a declaratory judgment, the largest number 
of Negroes whose names appeared on the jury roll was 
28 or 1% of the eligibles (A. 75, 360). After 1964, not­
withstanding the entry of the declaratory judgment, the 
number had risen only to 82, or 4% of the eligibles, by 
1966 when Alabama changed its statute to permit female 
service (A. 360). This paltry number of Negro names 
was on the jury roll after the yearly meeting of the com­
mission in August 1966 despite the fact, as the court found, 
that at that meeting the county’s voter list which contained 
the names of approximately 2,000 Negroes was scanned 
(A. 357)! This fact led the court to comment:

Thus in practice, through the August, 1966 meeting 
the system operated exactly in reverse from what the 
state statutes contemplate. It produced a small group 
of individually selected or recommended names for 
consideration. Those potentially qualified but whose



29

names were never focused upon were given no con­
sideration, (A. 357).

But the court was wrong in concluding that the system 
operated “in reverse” of what the state statute contem­
plated. It was the statute which afforded to the commis­
sioners the means for keeping the number of Negroes on 
the jury roll so small.

After the extraordinary session of the jury commis­
sioners in January 1967 (which was held after this suit 
was filed), the percentage of Negroes on the jury roll was 
increased from .7% in 1961 to 32% (A. 361), but it is to 
be noted that during the period that this increase occurred 
this Court twice considered a challenge to the jury selec­
tion procedures in Greene County (Coleman v. Alabama, 
377 U.S. 129 (1964); Coleman v. Alabama, 389 U.S. 22 
(1967)), the district court entered a declaratory judgment 
in a case presenting the same challenge, Coleman v. Bar­
ton, CA 63-4 (N.D. Ala. June 10, 1964), and the district 
court again considered a challenge to Greene County jury 
selection procedures which resulted in the order appealed 
from here. At the same time, a considerable amount of 
civil rights activity occurred in the county (A. 287) and 
an action was heard in the federal district court chal­
lenging voting practices and procedures on racial grounds 
(A. 287-88).21 Notwithstanding this considerable judicial 
and other action, as of the time this case was heard and 
decided below, the jury commissioners in a county 65% 
black had amassed a jury roll that was only 32% black 
(A. 361) or only 12y2% of the adult Negroes of the county 
(A. 360).

21 Gilmore v. Greene County Democratic Party Executive Com­
mittee, C.A. No. 66-341 (N.D., Ala.) (Opinion filed Feb. 11, 1969).



30

Surely tlie results demonstrated on this record cannot 
he said to be the consequence only of improper procedures 
by the jury officials for securing names. Beyond the need 
for a change in procedure is a need for a change in law 
requiring the use of standards “ objectively applicable and 
objectively applied,” Note, 52 Va. L. Rev., supra, at 1151, 
which will insure that no set of jury commissioners will 
be capable of limiting the opportunity for Negro service 
on juries by use of subjective criteria.

E. The Opportunity To Discriminate Provided By Alabama’s 
Statute Has Been Resorted To Throughout The State.

Appellants’ basic submission here is that because of the 
vague statutory criteria of Title 30 § 21 officials respon­
sible for selecting jurors throughout the state of Alabama, 
not only in Greene County, have been given the oppor­
tunity to exclude substantial numbers of Alabama’s eligible 
black citizens from jury service. Since, as we have shown, 
the practice of racial exclusion from jury service is made 
possible principally because of the statute’s lack of objec­
tive standards, the failure to correct this situation has left 
the promise of constitutional equality unfulfilled. The vast 
number of cases, past and present, which have challenged 
racial exclusion in Alabama’s jury selection process in this 
Court, the lower federal courts and the Alabama state 
courts are the consequence of this failure.

Alabama’s courts have demonstrated a clear unwilling­
ness to limit administrative discretion in the application 
of the State’s jury selection statutes.22 Indeed, in none of

22 Characteristic is the judicial attitude embodied in an old Ala­
bama jury selection opinion:

The matter of selection or rejection is left to the opinion 
(judgment) of the officers charged with the duty. Who is to 
review this, or pronounce upon their motives ? If their opinion



31

the cases which have reached the Alabama Supreme Court23 
has that court ever sustained the claim of racial discrimi­
nation in the selection process. Thus, many of these cases 
have found their way to this Court.24 25

Tti the lower federal courts, the failure to deal with the 
problem of excessive discretion in the hands of Alabama 
jury officials has occasioned an overwhelming amount of 
litigation involving racial discrimination in jury selection.26

or judgment is to control them, how can their conduct, in the 
absence of their discretion, and fraud, become the subject of 
review? Green v. State, 73 Ala. 26, 40 (1882).

and, in a later opinion:
“ The commission was thus in the exercise of official discre­

tion, wide in its scope, and not even to be superseded by that 
of the trial judge . . .” Norris v. State, 156 So. 556 at 561 
(1934).

23 See Norris v. State, 229 Ala. 226, 156 So. 556 (1934) (Jackson 
County); Millhouse v. State, 232 Ala. 567, 168 So. 665 (1936) 
(Mobile County); Vaughn v. State, 235 Ala. 80, 177 So. 553 (1937) 
(Mobile County) ; Powell v. State, 224 Ala. 540, 141 So. 201 (1937) 
(Jackson County) ; Vernon v. State, 245 Ala. 633, 18 So.2d 388 
(1944) (Jefferson County) ; Fikes v. State, 263 Ala. 89, 81 So.2d 
303 (1955) (Dallas County); Beeves v. State of Alabama, 264 Ala. 
476, 88 So.2d 561 (1956) (Montgomery County); Anderson v. State, 
270 Ala. 575, 120 So.2d 397 (1959) (Dallas County); Sivain v. 
State, 275 Ala. 508, 156 So.2d 368 (1963) (Talladega County); 
Coleman v. Alabama, 280 Ala. 509, 195 So.2d 800 (1967) (Greene 
County); Seals v. State of Alabama, 213 So.2d 645 (1968) (Mobile 
County); Taylor v. State, 213 So.2d 836 (1968) (Talladega 
County).

24 See Rogers v. Alabama, 192 U.S. 226 (1904) ; Norris v. Ala­
bama, 294 U.S. 587 (1934); Anderson v. Alabama, 366 U.S. 208 
(1961) ; Coleman v. Alabama, 377 U.S. 129 (1964); Swain v. Ala­
bama, 380 U.S. 202 (1965); Coleman v. Alabama, 389 U.S. 22 
(1967).

25 Civil suits successfully challenging racially discriminatory 
jury selection have been brought in federal district courts in coun­
ties throughout the state of Alabama. See, e.g., Mitchell v. Johnson,
250 P. Supp. 117 (M.D. Ala. 1966) (Macon County) ; White v. 
Crook, 251 P. Supp. 401 (M.D. Ala. 1966) (Lowndes County) ; 
Turner v. Spencer, 261 P. Supp. 542 (S.D. Ala. 1966) (consolidated



32

Despite the vast amount of litigation and the recognition 
by at least one district judge of this defect in Alabama’s 
statutory scheme:

. . . The chief difference lies in the latitude of respon­
sibility which is given to the jury commissioners in 
the application of the “ subjective” standards required 
by Alabama law. The jury commission shall place on 
the jury roll “ the names of all citizens of the county 
who are generally reputed to be honest and intelligent 
and are esteemed in the community for their integrity, 
good character, and sound judgment.” Title 30, Sec.

from cases which arose in Perry, Hale and Wilcox Counties) ; 
Banks, et al. v. Holley, CA 735-E (M.D. Ala. 1967) (Tallapoosa 
County) ; Dennard, et al. v. Baker, CA 2654-N (M.D. Ala. 1968) 
(Barbour County) ; Hadnott, et al. v. Narramore, CA 2681-N 
(M.D. Ala. 1968) (Autauga County) ■ McNab, et al. v. Griswold, 
CA 2653 (M.D. Ala. 1968) (Bullock County) ; Palmer, et al. v. 
Steindorff, CA 2679-N (M.D. Ala. 1968) (Butler County) ; Bush, 
et al. v. Woolf, CA 68-206 (N.D. Ala. 1968) (Calhoun County); 
Good, et al. v. Slaughter, CA 2677-N (M.D. Ala. 1968) (Crenshaw 
County) ; Beese v. Pickering, CA 3839-65 (S.D. Ala. 1968) (Dallas 
County) ; Croddock v. Bedsole, CA 940-S (M.D. Ala. 1968) (Henry 
County) ; Bumbry v. Williams, CA 763-E (M.D. Ala. 1968) (Rus­
sell County).

Similar cases have been initiated and are pending in the fol­
lowing counties: Huff, et al. v. White, CA. 68-223-N (M.D. Ala.) 
(Bibb County); Palmer, et al. v. Davis, CA 967-S (M.D. Ala.) 
(Dale County); Jones, et al. v. Holliman, CA 3944-65 (S.D. Ala.) 
(Marengo County) ; Preston, et al. v. Mandeville, CA 5059-68 (S.D. 
Ala.) (Mobile County) ; Richardson, et al. v. Wilson, CA 68-300 
(N.D. Ala.) (Jefferson County) ; Jones, et al. v. Wilson, CA 66-92 
(N.D. Ala.) (Jefferson County), pending on appeal sub nom. 
Salary v. Wilson, No. 25978 (5th Cir.) ; Black v. Coxwell, CA 
5Q25-68-P (S.D. Ala.) (Monroe County) ; Lockett v. Chappell, CA
68- 768 (N.D. Ala.) (Pickens County) ; Mallisham v. Kyle, CA
69- 85 (N.D. Ala.) (Tuscaloosa County); Nobels v. Waid, CA 68- 
618-M (N.D. Ala.) (St. Clair County) ; Nixon v. Parker, CA 65-619 
(N.D. Ala.) (Sumter County).

Cases in the court of appeals are: United States ex rel. Seals v. 
Wiman, 304 F.2d 53 (5th Cir. 1962) ;  Billingsley v. Clayton, 359
F.2d 13 (5th Cir. 1966 en banc); Giles v. Alabama, 384 F.2d 383 
(5th Cir. 1967).



33

21, Code of Alabama, (as amended by Act No. 285, 
Special Session 1966). Obviously, there is room for 
arbitrary refusal to include certain names in the jury 
box under the guise of enforcement of the above-quoted 
provision. Rather than strip all such responsibility 
from the jury commissioners, this court will admonish 
the defendant commissioners that it stands ready to 
take such action, if the responsibility and trust herein 
reposed is abused. Turner v. Spencer, 261 F. Supp. 
542, 543-44 (S.D. Ala. 1966). (emphasis supplied)

the lower federal courts have also not come to grips with
the problem. This Court should do so now.

II.

The Appointment of Only White Jury Commissioners 
Who Exercise the Excessive Discretion Granted Under 
Alabama Law Violates the Fourteenth Amendment to 
the Constitution of the United States.

The evidence supporting the fact of continued exclusion 
on racial grounds of black people (who are the majority in 
Greene County) is abundant and fully supports the dis­
trict court’s finding of racial discrimination (see Argument 
ID supra). The county’s jury commissioners had consist­
ently failed to produce anything approaching a repre­
sentative cross-section of the population on the county’s 
jury rolls thereby violating the black majority’s constitu­
tional right to participate through jury service in decisions 
affecting their lives, liberty, and economic interests.

During the years for which there was evidence in the 
record of the results of the jury selection process in Greene 
County, racial exclusion of most of the county’s black 
eligibles was accomplished by white jury commissioners



34

who were applying Alabama’s vague statutory standards 
to the few—very few—Negroes who were even considered 
at all. Not a single black man during this period was ap­
pointed as a jury commissioner; the jury commission’s 
clerk was white and this was the situation for at least as 
long as the jury clerk had served in that capacity, some 
twelve years (A. 32). The district court stating that “ [t]he 
attack on racial composition of the commission fails for 
want of proof” (A. 365) nevertheless found “the commis­
sion in Greene County now is and for many years has been 
composed entirely of white men appointed by the gov­
ernor” (A. 365-66).

In light of this finding by the district court, it is diffi­
cult to know the significance of the court’s statement that 
the attack on the racial composition of the jury commis­
sion failed “for want of proof.” Certainly, there was more 
than ample proof, as the court found, that the white jury 
commissioners had for many years excluded most Negroes 
from the opportunity for jury service—the opportunity to 
participate in “ the most important stage of the system- 
final fact-finding by a trial jury,” Labat v. Bennett, 365 
F.2d 698, 716 (5th Cir. 1966)—and it is obvious that this 
was accomplished in large measure by the unfettered dis­
cretion made possible by Alabama’s statute (Argument I 
supra). When the interlocking effect on Negro jury service 
of unbridled discretion in the hands of white men to select 
potential jurors on the basis of their subjective judgment 
in a community with the racial traditions of Greene County 
is considered, it is obvious that the “proof” before the 
district court was more than sufficient to compel an injunc­
tion requiring the appointment of blacks to the jury com­
mission. As this Court said in Louisiana v. United States, 
380 U.S. 145 (1965): “the court [had] not merely the power 
but the duty to render a decree which [would] so far as



35

possible eliminate the discriminatory effects of the past as 
well as bar like discrimination in the future.” 380 TJ.S. at 
154. Surely, the remedy of requiring the appointment 
of black people as jury commissioners was within the 
court’s power (the state’s governor was a defendant) and 
consideration of all the relevant circumstances (the cir­
cumstance (1) that the white jury officials—-consistent with 
southern racial patterns—had little, if any, contacts with 
Negroes and, therefore; (2) that the officials knew very 
few Negroes and practically nothing about the black com­
munity; (3) that only a few Negroes were contacted to 
secure black names for jury listing (A. 335); (4) that, in 
applying the statutorily created subjective standards, the 
white jury officials relied not only on their own subjective 
judgments but, even worse, on the subjective judgments of 
other people (A. 356); and (5) that, as previously pointed 
out (Argument IC above), few Negroes could be expected 
to pass muster under these standards as applied by white 
southern officials and few in fact did) mandated this relief.

Manifestly, in order to correct the effects of past dis­
crimination and to prevent its recurrence—relief going 
beyond the mere direction to white officials to “do better” 
in the future was needed. The admonition to “ improve” 
the situation re: black jury service in Greene County had 
already been given in 1964 (Coleman v. Barton supra) 
but had not been heeded. An important component of this 
relief—in addition to enjoining the use of the statutory 
standards—was an order requiring the appointment of 
black jury officials in Greene County who would represent 
the majority black community in Greene County. Cf. 
Brooks v. Beto, 366 F.2d 1, 23:

“ To fairly represent the community, there must be 
an awareness of the make-up of that community.”

# *  *



36

“ There are, of course, a variety of ways of going 
about this. One, obviously is fairly to place on the 
juror-selecting body persons from or closely identi­
fiable with such groups”  (emphasis supplied)

This “ obvious” remedy rejected by the district court is 
crucial in Greene County, Alabama where 2 out of every 
3 persons are black.26

Finally, there is an equally compelling reason why the 
appointment of Negroes as jury commissioners in Greene 
County is important: to arrest “ the alienation of the 
Negro from the general affairs of the community, particu­
larly in the South.” (See note 14 supra at p. 20.) That 
alienation has been well documented as it relates to partici­
pation in the political processes of the South (.Political 
Participation, Report of the United States Commission on 
Civil Rights, 1968). Participation—in an official way—in 
the closely related process of selecting those who will 
serve on juries is essential not only because of the im­
portance to the administration of justice as it affects 2 
out of every 3 persons in Greene County, but also to as­
sure black people in this deep South county that the

26 As Chief Judge Brown of the Fifth Circuit also stated in 
Brooks v. Beto:

The challenge is to assure constitutional equality now. This 
often means, as it did in this case, eradication of the evils of 
the past. That evil of racial exclusion cannot be ignored. It 
must be reckoned with in terms which permit, indeed assure, 
equality for the immediate future. The evil and the evil prac­
tices are not theoretical. They are realities. The law’s response 
must therefore be realistic.

Thus the solution to this problem, as in many other aspects 
of civil rights, comes from experience born of the rich history 
of the struggles of the past decade. This Court has not hesi­
tated to fashion judicial remedies to the realities to assure 
actual enjoyment of the constitutional ideals. 366 F.2d at 24.



37

democratic ideal of citizen involvement in matters touch­
ing their lives has meaning for them-, it clearly has had 
little meaning for them in the past.37 But the consistently 
clear message of this Court’s numerous decisions in the 
voting field has been that the Reconstruction amendments 
were designed to assure full participation of Negroes in 
the governmental process. See, e.g., Terry v. Adams, 345 
U.S. 461, 466 (1953):

. . .  no election machinery could be sustained if its 
purpose or effect was to deny Negroes on account of 
their race an effective voice in the governmental affairs 
of their country, state, or community, (emphasis sup­
plied)

This unexceptionable proposition was recently reaffirmed 
by this Court with respect to Greene County. Hadnott v. 
Amos, Nos. 647, Oct. Term 1968, 37 U.S.L. Week 4256 
(March 25, 1969). The principle is equally applicable to 
the service of Negroes as jury selectors. 27 * * * * *

27 With 74% of the adult population by 1960 census figures
(A. 359), Negroes in Greene County had been effectively shut off
from participation in the political processes there until after pas­
sage of the Voting Rights Act of 1965. Federal registrars were
required in order to secure any substantial Negro voting registra­
tion (A. 358).



38

CONCLUSION

W herefore, that portion of the district court’s judgment 
declining to hold Code of Alabama, Title 30 § 21 unconsti­
tutional on its face and to enjoin enforcement of its vague 
criteria should be reversed and the court directed to enter 
declaratory and injunctive relief as prayed in the com­
plaint. The relief granted should require the use of only 
objective criteria in the future selection of jurors. That 
portion of the district court’s judgment refusing to declare 
the all-white composition of the Greene County Jury Com­
mission unconstitutional should also be reversed and the 
appointment of black jury commissioners required.

Respectfully submitted,

J ack  Greenberg

N orman  C. A m aker

J ames N. F in n ey

10 Columbus Circle 
New York, New York 10019

Orzell  B illin gsley , J r.
1630 Fourth Avenue, North 
Birmingham, Alabama 35203

Attorneys for Appellants



APPENDIX



l a

APPENDIX

Statutory Provisions Involved

The following additional provisions are material to an 
understanding of the issues presented.

Code of Alabama, Tit. 30, § 9. Membership, etc., of com­
missions.—Each of said jury commissions shall be com­
posed of three members who shall be qualified electors of 
the county in which they are appointed and shall be per­
sons reputed for their fairness, impartiality, integrity and 
good judgment. Members of the commission shall not dur­
ing the term for which they are appointed and during their 
tenure in said office hold any other office by appointment 
or election or perform any other public duty under the 
federal, state, county or municipal government, which car­
ries with it any compensation whatsoever. (1939, p. 86; 
1966, Ex. Sess., p. 428, § 1, appvd. Sept. 12, 1966.)

Code of Alabama, Tit. 30, § 10. Members to be appointed 
by governor.— The governor shall appoint the members 
of the several jury commissions who shall constitute said 
several commissions during the governor’s tenure of office 
and until their successors are appointed and qualified, and 
thereafter the governor shall appoint the members of said 
jury commissions for and only during the tenure of office 
of the governor making the appointment and until their 
successors are appointed and qualified. (1939, p. 86.)

Code of Alabama, Tit. 30, §18, Duties of Clerk.—The
clerk of the jury commission shall, under the direction of 
the jury commission obtain the name of every citizen of 
the county over twenty-one and under sixty-five years of 
age and their occupation, place of residence and place of 
business, and shall perform all such other duties required



2a

of him by law under the direction of the jury commission. 
(1939, p. 86; 1966, Ex. Sess., p. 428, §2, appvd. Sept. 12, 
1966.)

Code of Alabama, Tit. 30, §20. Jury roll and cards.—
The jury commission shall meet in the court house at the 
county seat of the several counties annually, between the 
first day of August and the twentieth day of December, 
and shall make in a well-bound book a roll containing the 
name of every male citizen living in the county who pos­
sessed the qualifications herein prescribed and who is not 
exempted by law from serving on juries. The roll shall be 
arranged alphabetically and by precincts in their numeri­
cal order and the jury commission shall cause to be written 
on the roll opposite every name placed thereon the occu­
pation, residence and place of business on each card. These 
cards shall be placed in a substantial metal box provided 
with a lock and two keys, which box shall be kept in a safe 
or vault in the office of the probate judge, and if there be 
none in that office, the jury commission shall deposit it in 
any safe or vault in the court house to be designated on 
the minutes of the commission; and one of said keys thereof 
shall be kept by the president of the jury commission. The 
other of said keys shall be kept by a judge of a court of 
record having juries, other than the probate or circuit 
court, and in counties having no such court then by the 
judge of the circuit court, for the sole use of the judges 
of the courts of said county needing jurors. The jury roll 
shall be kept securely and for the use of the jury commis­
sion exclusively. It shall not be inspected by anyone except 
the members of the commission or by the clerk of the com­
mission upon the authority of the commission, unless upon 
an order of the judge of the circuit court or other court

Statutory Provisions Involved



3a

of record having* jurisdiction. (1939, p. 86; 1945, p. 496, 
appvd. July 7, 1945; 1966, Ex. Sess., p. 428, 4 3, appvd. 
Sept. 12, 1966.)

Code of Alabama, Tit. 30, § 24. Duty of commission to 
fill jury roll; procedure; etc.—The jury commission is 
charged with the duty of seeing that the name of every 
person possessing* the qualifications prescribed in this chap­
ter to serve as a juror and not exempted by law from 
jury duty, is placed on the jury roll and in the jury box. 
The jury commission must not allow initials only to be 
used for a juror’s name but one full Christian name or 
given name shall in every case be used and in case there 
are two or more persons of the same or similar name, the 
name by which he is commonly distinguished from the 
other persons of the same or similar name shall also be 
entered as well as his true name. The jury commission 
shall require the clerk of the commission to scan the regis­
tration lists, the lists returned to the tax assessor, any city 
directories, telephone directories and any and every other 
source of information from which he may obtain informa­
tion, and to visit every precinct at least once a year to 
enable the jury commission to properly perform the duties 
required of it by this chapter. In counties having a popu­
lation of more than one hundred and eighteen thousand 
and less than three hundred thousand, according to the 
last or any subsequent federal census, the clerk of the jury 
commission shall be allowed an amount not to exceed fifty 
dollars per calendar year to defray his expenses in the 
visiting of these precincts, said sum or so much thereof 
as is necessary to be paid out of the respective county 
treasury upon the order of the president of the jury com­
mission. (1939, p. 86.)

Statutory Provisions Involved



4a

Code of Alabama, Tit. 30, § 30. Drawing- grand and petit
juries from jury box.—At any session of a court requiring 
jurors for the next session, the judge, or where there are 
more than one, then any one of the judges of the court 
shall draw from the jury box in open court the names of 
not less than fifty persons to supply the grand jury for 
such session and petit juries for the first week of such 
session of the court, or if  a grand jury is not needed for 
the session at least thirty persons, and as many more 
persons as may be needed for jury service in courts having- 
more than one division for the first week, and after each 
name is drawn it shall not be returned to the jury box, 
and there shall be no selection of names, and must seal up 
the names thus drawn, and retain possession thereof, with­
out disclosing who are drawn until twenty days before the 
first day of the session of the court for which the jurors 
are to serve, when he shall forward these names by mail 
or express, or hand the same to the clerk of the court who 
shall thereupon open the package, make a list of the names 
drawn, showing the day on which the jurors shall appear­
and in what court they shall serve, and entering opposite 
every name the occupation of the person, his place of busi­
ness, and of residence, and issue a venire containing said 
names and information to the sheriff who shall forthwith 
summon the persons names thereon to appear and serve 
as jurors. (1909, p. 305.)

Statutory Provisions Involved



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