Turner v. Fouche Appellants' Brief in Opposition to Appellees' Motions to Dismiss or Affirm

    I n  the

Olflurt at BtnUB
October T eem, 1968 

No. 842

Calvin T urner, et al.,

W . W . F ouche, et al.,

Appellants,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OP GEORGIA

APPELLANTS’ BRIEF IN OPPOSITION TO 
APPELLEES’ MOTIONS TO DISMISS OR AFFIRM

J ack Greenberg 
Michael Meltsnee

10 Columbus Circle 
New York, New York

H oward Moore, J r.
P eter R indskope

859% Hunter Street, N.W. 
Atlanta, Georgia

Attorneys for Appellants



I n  t h e

Qlmtrt nf
October T eem, 1968 

No. 842

Calvin T urner, et al.,

-V.-

W . W . F ouche, et al.,

Appellants,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOE THE SOUTHERN DISTRICT OF GEORGIA

APPELLANTS’ BRIEF IN OPPOSITION TO 
APPELLEES’ MOTIONS TO DISMISS OR AFFIRM

I.

In their motions to dismiss appellees challenge this 
Court’s jurisdiction under 28 U.S.C. §1253 and invoke in 
support of their contention the doctrine of Moody v. Flow­
ers, 387 U.S. 97, 102 (1968) ivhere this Court vacated the 
judgment after finding a state statute “is not a statute 
of stateivide application, but relates solely to the affairs 
of one county in the State”. Appellees are not aided by 
this holding, however, for Moody does not require that 
allegations as to the unconstitutionality of a statutory 
scheme need derive their proof out of facts occurring in 
more than one county of a state. Nor did that case hold that 
other than county officials need he named as party defen­



dants where challenged statutes are “of statewide applica­
tion.” Ibid. In Sailors v. Kent Board of Education, 387 U.S. 
105 (1967) decided the same day as Moody, this Court sus­
tained three judge jurisdiction where officials of only one 
county were sued and the unconstitutional operation of the 
statutes were demonstrated in that county alone. Mr. Jus­
tice Douglas distinguished Moody, supra in language 
equally applicable to the instant case:

We conclude that a three-judge court was properly 
convened, for unlike the situation in Moody v. Flowers, 
. . . this is a case where the state statute that is chal­
lenged [footnote omitted] applies generally to all Mich­
igan County school hoards of the type described (387 
U.S. at 107.)

Appellees rely heavily upon Ex Parte Collins, 277 U.S. 565 
(1928) and its citation in Moody, supra. Moody did not cite 
the Collins case, however, for the proposition that proof of 
unconstitutionality was required to emanate from state 
party defendants or from activity proved to have occurred 
in every part of a state. Such an interpretation of Collins 
and Moody cannot stand in light of the decision in Sailors. 
What in fact, does need to be shown is that the statutes 
attacked manifest an unconstitutional policy of statewide 
applicability. Clearly those requirements are satisfied in 
the instant case.

Appellants have challenged as inconsistent with the fed­
eral Constitution state statutes applicable to all the counties 
of the state of Georgia. In their jurisdictional statement 
appellants challenged, inter alia, Georgia Code Ann. Tit., 
32 §902 which provides membership on county boards of 
education shall be restricted to freeholders and Georgia 
Code Ann. Tit. 59, §§101, 106, which require that jurors



be “upright and intelligent” and jury commissioners be 
“discreet”. Thus, as the court below held, a three-judge 
court was properly convened under 28 U.S.C. §2281 because 
this is an action seeking, inter alia, to restrain state officials 
from enforcing state statutes of general application on the 
ground that they unconstitutionally (a) distinguish between 
the poor and propertyless and those who own real property 
by excluding the former from school board membership and 
(b) state requirements for jury and jury commission service 
with impermissible vagueness and overbreadth. See e.g., 
Flast V. Cohen, 392 U.S. 83 (1968); Idlewild Bon Voyage 
Liquor Corp. v. Epstein, 370 U.S. 713 (1962); Query v. 
United States, 316 U.S. 486 (1942). Although brought 
against local officials, this case is not a matter of purely 
local concern, because here relief is sought against the ac­
tion of public officials, acting under challenged state statutes 
expressing the state’s policy in relation to jury and school 
board selection. See e.g., Spielman Motor Sales Co. v. 
Dodge, 295 U.S. 89 (1935); Sailors v. Board of Education 
of the County of Kent, supra. This is not merely an attack 
upon the “unconstitutionality of the result obtained by the 
use of a statute which is not attacked as unconstitutional.” 
Cf. E x parte Bransford, 310 U.S. 354, 361 (1940) (dictum).

Nor do 28 U.S.C. §§1253, 2281, as the state of Georgia 
appears to urge, require that a statute be challenged on 
the ground that it discriminates explicitly on the basis of 
race for a three-judge court to have jurisdiction. Louisiana 
v. U.S., 380 U.S. 145 (1965). A challenge to a statutory 
scheme on the basis that it presents local officials with 
“opportunity for discrimination” clearly raises a sub­
stantial question of unconstitutionality. Whitus v. Geor­
gia, 385 U.S. 545, 552 (1967); Louisiana v. V.S., supra. The 
substantiality of the question is highlighted by the fact that



on several occasions in the past 16 years this Court has 
found itself compelled to reverse or remand convictions on 
the ground that an opportunity to discriminate was re­
sorted to by county officials of the state of Georgia. E.g. 
Whitus, supra; Anderson v. Georgia, 390 U.S. 206 (1968); 
Cobb V. Georgia, 389 U.S. 12 (1967); Avery  v. Georgia, 
345 U.S. 559 (1953); Williams v. Georgia, 349 U.S. 375, 
391-392 (1955). Appellants have shown by their proof as 
to Taliaferro County that it is anything but frivolous 
to allege that discrimination against Negroes in jury 
selection is permitted, and even invited^ by Georgia 
law. Nor is it frivolous to allege that a political process 
which operates to dilute and to limit participation of Ne­
groes violates the United States Constitution, Dusch v. 
Davis, 387 U.S. 112, 117 (1967). As previously shown, the 
fact that proof of the dilution is derived from the operation 
of the statewide scheme in one county does not remove the 
claim from the three-judge requirement. Sailors, supra.

II.

The state also argues that appellant Turner has no stand­
ing to challenge the statutory exclusion of non-freeholders 
from school board membership because he is a freeholder. 
The district court, however, permitted intervention of Jo ­
seph Heath, a father of several school children and non- 
freeholder, who plainly possessed requisite standing to 
challenge a statute which prohibited him from serving on 
the county school board. The court permitted intervention, 
after appellees’ counsel stated that he had no objection, 
“to make certain that the Court will reach the merits of

See South Carolina v. Kafzenhach, 383 U.S. 301, 312-313 (1966).



the claim that an application based on freeholders is uncon­
stitutional” (11-133, 134).

Respectfully submitted,

J ack Gbebnbeeg 
Michael Meltsneb

10 Columbus Circle 
New York, New York

H owaed Mooee, J b.
P etee R iudskope

8591/2 Hunter Street, N.W. 
Atlanta, Georgia

Attorneys for Appellants



MBILEN PRESS IN C - ^ N ,  Y C  219

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