Marshall v Gavin Petition for Writ of Certiorari

    IN THE

Supreme Court of the United States
October Term, 1974 

No. 7 4 _ 1 ? 9

MARY ALICE MARSHALL, WILLIAM HUNT, 
FANNIE MAE JAMISON, WILLIE MAE 

ALLEN, ROSA LEE BROWN, JOE E. SCOTT, 
ANDREW LEE, for themselves and 

for all others similarly situated,
Petitioners, 

v.
WILLIAM F. GAVIN, J. WILLARD SMITH, 

MARSHALL D. CANNON, as members 
of the Levy County Jury Commission,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

OF COUNSEL:
R u t h  B ader  G in sburg  
M e l v in  L. W u l f  
22 East 40th Street 
New York, New York 10016
American Civil Liberties 

Union Foundation, Inc.

L a u g h lin  M cD onald  
N e il  B rad ley  
Sa r a ja n e  L ove 
52 Fairlie Street, N.W. 
Atlanta, Georgia 30303
K e n t  Spriggs 
118 N. Gadsden Street 
Tallahassee, Florida 32301
American Civil Liberties 

Union Foundation, Inc.
ATTORNEYS FOR 
PETITIONERS



INDEX

OPINIONS BELOV/...... ...........................................  2

JURISDICTION.........................................................  2

QUESTIONS PRESENTED FOR REVIEW.........  2

STATE STATUTORY PROVISIONS INVOLVED 3 

STATEMENT OF THE CASE................................. 3

REASONS FOR GRANTING THE W RIT..........  5
I. The decision below is inconsistent with 

decisions of this court requiring close 
judicial scrutiny of sex-based classifica­
tions, and the reliance upon Hoyt v. Flor­
ida, 368 U.S. 57 (1961), was misplaced.........  5

II. This case presents important issues con­
cerning the composition of state court 
juries and the equal sharing of jury service 

• • by all adult members of the community.......  8
III. Jury selection in Levy County discrimi­

nates against Negroes...................................... 10

CONCLUSION........................................................... 12

APPENDIX
Opinion of the United States Court of Appeals

for the Fifth Circuit............................................  la
Order Denying Motion for Leave to File a

Petition for Rehearing Out of Time.................  2a
Opinion of the United States District Court 

for the Northern District of Florida.................  3a
Judgment................................................................... 13a
Stipulations of the Parties....................................... 14a

Page

l



TABLE OF AUTHORITIES

Alexander v. Louisiana, 405 U.S. 625 (1971)........ 10
Apodaca v. Oregon, 406 U.S. 404 (1972)............ .. 7
Broadway v. Culpepper, 439 F.2d 1253 

(5th Cir. 1971)................................................. 10, 11
Brooks v. Beta, 366 F.2d 1 (5th Cir. 1966)...........  11
Carter v. Jury Commission o f Greene County,

396 U.S. 320 (1970).........................................10, 11
Frontiero v. Richardson, 411 U.S. 677

(1973). ......................................................... 5, 6, 7, 8
Healy v. Edwards, 363 F. Supp. 1110 (E.D.

La. 1973) (three-judge court),prob.jur.
noted, 415 U.S. 911 (1974)................................. 6,7

Hoyt v. Florida, 368 U.S. 57 (1961)..................5, 6, 7
Kahn v. Shevin, 42 U.S.L.W. 4591 

(April 24, 1974).................................................... 6
Labat v. Bennett, 365 F.2d 698 

(5th Cir. 1966)...................................................... 10
Marshall v. Holmes, 365 F. Supp. 613 (N.D. 

Fla. 1973), affirmed, 495 F.2d 1371 (5th
Cir. 1974).............................................................  2

Peters v. Kiff, 407 U.S. 493 (1973)........................  10
Reed v. Reed, 404 U.S. 71 (1971)................. 5, 6, 7, 8
Rowe v. Peyton, 383 F.2d 709 (4th Cir. 1967), 

affirmed, 391 U.S. 54 (1968)...............................  6
Turner v. Fouche, 396 U.S. 346 (1970).................. 10
United States ex rel. Goldsby v. Harpole,

263 F.2d 71 (5th Cir. 1959)................................  11

u



United States v. Zirpolo, 450 F.2d 424 
(3rd Cir. 1971).....................................................  7

White v. Crook, 251 F. Supp. 401 
(M.D. Ala. 1966) (three-judge court)................  7

Whitus v. Georgia, 385 U.S. 545 (1967)........ . 11

Constitution:
Fourteenth amendment of the Constitution

of the United States............................................  3

Federal Statutes:
28 U.S.C. §1254(1)................................................. 2
28 U.S.C. §2281.....................................................  3
42 U.S.C. §1981.....................................................  3
42 U.S.C. §1983.....................................................  3

State Statutes:
Alaska Stat. § §9.20.010, 9.20.030.......................... 9
Arizona Rev. Stat. Ann. §§21, 201, 21.202.......... 9
3B Ark. Stats. Ann. § §39.101 et seq.....................  9
13 Cal. Code Civ. Pro. §§198 et seq.....................  9
4 Colo. Rev. Stat. Ann. §§78-1 et seq................... 8
10 Del. Code Ann. §§4505 et seq..........................  9
Florida Statutes, §40.01(1)................................ 3, 4, 5
7 Hawaii Rev. Laws §§609-1 et seq......................  9
2 Idaho Code Ann. §§2-201 et seq........................  9
111. Ann. Stat. Ch. 78 § §1 et seq. (Smith Hurd). . 9

TABLE OF AUTHORITIES (Cont’d)

Page

iii



TABLE OF AUTHORITIES (Cont’d)

Page
Ind. Ann. Stat. §4-7115..........................................  9
Iowa Code Ann. §§607.1 et seq.............................  9
3A Kan. Stat. Ann. §§43-155 et seq...................... 9
1 Ky. Rev. Stat. §§29.205, 39.035..................... ... 9
14 Me. Rev. Stat. Ann. §§1201 et seq................... 9
5A Md. Ann. Code art. 51, § §1 et seq.................. 9
Mich. Comp. Laws Ann. §§600.1306, 600.1307. . 9
Miss. Code Ann. §§1762 et seq.............................. 9
7 Mont. Rev. Codes Ann. §§93-1301 et seq.........  9
1 Nev. Rev. Stat. §§6.010 et seq............................  9
2A N.J. Rev. Stat. §§69-1, 69-2............................  9
N.J. 5A §93-1304 (12)............................................  9
4 N.M. Stat. Ann. §§19-1-1 et seq.. 
IB N.C. Gen. Stat. §§9-3 et seq....
5 N.D. Cent. Code §§27-09.1 et seq.
1 Ore. Rev. Stat. §§10.010 et seq...
17 Pa. Stat. §1279............................
7 S.D. Code §§16-13-10 et seq........
Vt. Stat. Ann. tit. 12, App. VII,

Pt. 1, R.25 §27.............................
2 Va. Code Ann. §§8-208.2 et seq.. 
W. Va. Code Ann. §§52-1-1 et seq.. 
Wis. Stat. Ann. §§255.01, 270.16. . ,

Other Authorities:
Hayghe, Labor Force Activity of Married 

Women, U.S. Department of Labor 
Monthly Labor Review, Table 4 at 34 
(April 1973)..........................................................  8

U.S. Women’s Bureau, Department of Labor, 
Highlights of Women’s Employment &
Education (1973).................................................  7

IV



IN THE

Supreme Court of the United States
October Term, 1974

No. 74

MARY ALICE MARSHALL, WILLIAM HUNT, 
FANNIE MAE JAMISON, WILLIE MAE 

ALLEN, ROSA LEE BROWN, JOE E. SCOTT, 
ANDREW LEE, for themselves and 

for all others similarly situated,
Petitioners,

v.
WILLIAM F. GAVIN, J. WILLARD SMITH, 

MARSHALL D. CANNON, as members 
of the Levy County Jury Commission,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

Petitioners, Mary Alice Marshall, William Hunt, Fan­
nie Mae Jamison, Willie Mae Allen, Rosa Lee Brown, 
Joe E. Scott, and Andrew Lee, pray that a writ of cer­
tiorari issue to review the judgment of the United States 
Court of Appeals for the Fifth Circuit entered on May 
30, 1974.

1



2

Opinions Below
The opinion of the United States Court of Appeals 

for the Fifth Circuit affirming the judgment of dismissal 
rendered by the United States District Court for the 
Northern District of Florida is noted at 495 F.2d 1371 
and is set out in the appendix, infra, at p. la. The opinion 
of the United States District Court for the Northern Dis­
trict of Florida is reported at 365 F. Supp. 613, and is 
set out in the appendix, infra, at pp. 3a-12a.* A motion 
for leave to file an out-of-time petition for rehearing was 
denied by order of July 1, 1974, and is set out in the 
appendix, infra, at p. 2a.

Jurisdiction
The judgment of the United States Court of Appeals 

for the Fifth Circuit was entered on May 30, 1974. This 
Court has jurisdiction pursuant to 28 U.S.C. §1254(1).

Questions Presented For Review
1. Whether petitioners were entitled to have a three- 

judge court convened to adjudicate the constitutionality 
of the mothers’ exemption provision of Florida jury law 
which provides for a sex-based right to opt-out of jury 
duty in favor of expectant mothers and mothers with 
children under 18 years of age.

2. Whether the mothers’ exemption provision of the
Florida jury laws places an unequal burden of jury duty 
upon men and produces juries in Levy County which 
do not represent a cross section of the community.

3. Whether Negro citizens have been discriminated 
against in the selection of persons for jury service in 
Levy County, Florida.
*The opinions below are rendered sub nom. Marshall v. Holmes.



3

State Statutory Provisions Involved
Florida Statutes, §40.01(1):

(1) Grand and petit jurors shall be taken from 
the male and female persons over the age of twenty- 
one (21) years, who are citizens of this state and 
who have resided in this state for one (1) year and 
in their respective counties for six (6) months and 
who are fully qualified electors of their respective 
counties; provided, however, that expectant moth­
ers and mothers with children under eighteen (18) 
years of age, upon their request, shall be exempted 
from grand and petit jury duty.

Statement of the Case
Petitioners, a group of black men and women citi­

zens, commenced this action on January 13, 1972, alleg­
ing that blacks and women were underrepresented on 
the Levy County, Florida juries, and that Florida Stat­
utes, §40.01(1), which allows expectant mothers and 
mothers with children under 18 years of age to opt-out 
of jury service, was unconstitutional. Jurisdiction was 
based on the Fourteenth Amendment of the Constitution 
of the United States, 28 U.S.C. §2281, 42 U.S.C. §§1981 
and 1983. A three-judge court was requested and the 
case adjudicated on stipulated facts. The district court 
entered an opinion order on September 28, 1973, declin­
ing to convene a three judge court concluding that the 
constitutional challenge was insubstantial and resolving 
all issues in favor of the defendants. The court of appeals 
affirmed per curiam on May 30, 1974, adopting the 
opinion of the district court.

The current system for jury selection in Levy County 
was instituted in August, 1970. The respondent jury



4

commissioners compiled an eligibility file for jury ser­
vice by mailing a questionnaire to all registered voters. 
Those voters who were not qualified for statutory ex­
emptions from jury duty as well as those who did not 
respond to the questionnaire were placed in the eligibility 
file. A total of 2,978 names were so compiled from 
which 625 were selected on a random basis to be placed 
in a box from which jurors’ names were drawn. As of 
August, 1970, voter registration was 4,966 in Levy 
County, of which 4,415 were white and 551 were black. 
The racial and sexual composition of the eligibility file 
at that time was as follows: 1,434 white males, 1,168 
white females, 172 black males and 204 black females. 
Subsequent to the initial composition of the eligibility 
file, each newly registered voter has received a question­
naire while each elector who has died or moved, if such 
is made known to the jury commissioners, is eliminated 
from the eligibility file.

The total number of women claiming the §40.01(1) 
exemption for mothers and expectant mothers as of April 
23, 1973, was 623. Of this number, 195 indicated that 
they had employment outside the home.

Jury lists for 1971, 1972 and 1973 contained 7.64, 
14.39 and 18.0 per cent blacks for an average of 12.97 
per cent, and 36.31, 48.29 and 38.0 per cent women for 
an average of 44.41 per cent respectively.1 The popula­
tion of Levy County, Florida is 51 per cent female and 
25.2 per cent Negro. *

xThe parties also stipulated that during 1969 12.81% of jury lists 
were black and 39.41% were female. For 1970, 14.47% of the 
lists were black and 25.0% were female. Thus, from 1969 through 
February 27, 1973, the dates covered by the stipulation, an aver­
age of only 40.3% of jury lists were female and 13.2% were black.



5

Reasons for Granting the Writ

I. The decision below is inconsistent with deci­
sions of this Court requiring close judicial scrutiny 
of sex-based classifications, and the reliance upon 
Hoyt v. Florida, 368 U.S. 57 (1961), was misplaced.

The district court, affirmed per curiam on appeal, 
concluded that a three-judge court was not required to 
hear petitioners’ complaint that Florida’s exemption 
from jury duty in favor of pregnant women and mothers 
with children under 18 years of age was unconstitutional, 
since the validity of Florida Statutes, §40.01(1) had 
been settled by Hoyt v. Florida, 368 U.S. 57 (1961) 
Intervening decisions, however, have eroded the ruling 
in Hoyt to the point where it is in plain conflict with 
vibrant precedent subsequently established by this Court. 
In Reed v. Reed, 404 U.S. 71 (1971), and Frontiero v. 
Richardson, 411 U.S. 677 (1973), this Court signaled 
a new direction for resolving the constitutionality of 
sex-based legislation. In Reed it invalidated an Idaho 
statute that gave a preference to men over women for 
appointment as estate administrators. Frontiero struck 
down a scheme whereby military housing allowance and 
medical benefits were automatically granted for service 
wives while such benefits were disallowed for service 
husbands unless the service member proved she supplied 
over half her husband’s support. The synthesis of Reed 
and Frontiero is that similarly situated men and women 2

2Hoyt involved a predecessor statute of §40.01(1) and concluded 
that it was not unconstitutional to require women to opt-in for jury 
service by registering with the Clerk of the Circuit Court “her 
desire to be placed on the jury list.” Florida Statutes, 1959, 
§40.01(1).



6

are constitutionally entitled to equal treatment by law 
and that sex-based generalities will not sustain unequal 
treatment absent the demonstration of a fair and sub­
stantial justification for the differential.3 Classifications 
such as those contained in the Florida mothers’ exemp­
tion are now accorded careful review, and stereotypical 
generalizations, once accepted as a matter of course or 
given only cursory attention, no longer survive consti­
tutional scrutiny. Frontiero v. Richardson, supra. In 
Healy v. Edwards, 363 F. Supp. 1110, 1117 (E.D. La. 
1973) (three-judge court), prob. jur. noted, 415 U.S. 
911 (1974), a decision declaring unconstitutional Loui­
siana’s opt-in plan for jury service for women identical 
to the one approved in Hoyt, the court noted:

[Tjhere are occasional situations [such as Hoyt 
v. Florida] in which subsequent Supreme Court 
opinions have so eroded an older case, without ex­
plicitly overruling it, as to warrant a subordinate 
court in pursuing what it conceives to be a clearly 
defined new lead from the Supreme Court to a con­
clusion inconsistent with an older Supreme Court 
case.4

Hoyt is indeed “yesterday’s sterile precedent” and it was 
error for the court below to rely upon it. Ibid.

8Kahn v. Shevin, 42 U.S.L.W. 4591, 4593 (April 24, 1974), does 
not signal a return to the day when this Court countenanced a 
“sharp line between the sexes,” since the classification there in­
volved collection of revenue, an area in which “the states have 
large leeway in making classifications and drawing lines which in 
their judgment produce reasonable systems of taxation.” Kahn 
cannot be read to permit differential treatment of men and women 
based on traditional notions of separate spheres for the two sexes, 
for such an interpretation would collide head-on with Reed and 
Frontiero.
4Quoting from Rowe v. Peyton, 383 F.2d 709, 714 (4th Cir. 1967), 
affirmed, 391 U.S. 54 (1968).



7

The Florida statutory scheme establishes a sex-based 
classification that stigmatizes all women, even those who 
do not wish to serve, by decreeing, in effect that while 
male participation in the administration of justice is essen­
tial, participation by women is not. Identifiable groups 
in the community may not constitutionally be excluded 
from jury selection procedures, Apodaca v. Oregon, 406 
U.S. 404, 413 (1972), and women are such an identi­
fiable group. White v. Crook, 251 F. Supp. 401 (M.D. 
Ala. 1966) (three-judge court); United States v. Zir- 
polo, 450 F.2d 424 (3rd Cir. 1971); Healy v. Edwards, 
supra. Florida’s jury selection statutes relegate women 
“to inferior legal status without regard to [their] actual 
capabilities.” Frontiero v. Richardson, supra, 411 U.S. 
at 687. Women are thus branded as second class citizens 
in violation of the right of their class to equal treatment.

Section 40.01(1) bears no substantial relationship to 
any legitimate state objective. The Hoyt image of woman 
“as the center of home and family life,” of dubious ac­
curacy for many women in 1961, is today recognized 
as a gross generalization of the same order as the familiar 
stereotypes rejected as a basis for legislative classifica­
tion in Frontiero and Reed. While the justification for 
exemption from jury duty in favor of mothers with small 
children is that they need to be at home caring for their 
young, the reality of life for women with children in 
Levy County is that of those exempted from jury service 
as of 1973 31% had some form of employment outside 
the home. As well, in 1972, 60% of all married women 
in the United States living with their husbands were gain­
fully employed and 42% of all working women were 
employed full time the year round. U. S. Women’s Bu­
reau, Department of Labor, Highlights of Women’s Em­



8

ployment and Education (1973). In 1972, 26.9% of 
the mothers with children under three years old were 
in the labor force; 36.1% of mothers with children 3-5 
years old were gainfully employed; and 50.2% of women 
with children 6-17 years old were in the labor force. 
Hayghe, Labor Force Activity of Married Women, U.S. 
Department of Labor, Monthly Labor Review, Table 4, 
at 34 (April 1973). The fact is that the Florida jury 
service exemption for women covers a substantial popu­
lation of mothers for whom child care concerns do not 
preclude active involvement outside the home. The Flo­
rida classification is overinclusive5 and under Frontiero 
and Reed unconstitutional. Plaintiffs’ attack upon it was 
substantial and should have been heard by a three-judge 
court.

II. This case presents im portant issues concern­
ing the composition of state court juries and the 
equal sharing of jury  service by all adult members 
of the community.

Men and women similarly situated who are responsi­
ble for the care of children are not treated similarly by 
Florida jury law. There is no reason for treating them 
differently. The Florida statute fails to exempt men with 
child care responsibilities, among them widowed fathers 
and husbands with incapacitated wives. For these men 
jury service may be far more burdensome than it is for 
women. More appropriate means are obviously avail­
able to further a genuine concern for care of children.

5It is also underinclusive to the extent that it excludes fathers with 
children under eighteen. In this respect, it conclusively presumes 
the mother will be the child tenderer, a decision which family pri­
vacy requires be left to the individuals involved, and not steered 
by the state.



9

For example, recognizing that child rearing is a function 
either parent can perform, New Jersey exempts any “per­
son” who has custody of and personal care for a child. 
N.J.S.A. §93-1304(12). The experience of the federal 
courts and 30 states that administer jury selection meth­
ods which are non-discrimin atory on their face, suggest 
that there is in fact no justification for the statute here.6

The disproportionate jury service cast upon men by 
the mothers’ exemption also ensures that juries in Levy 
County do not reflect a cross section of the community. 
While 51 % of population of Levy County is female, from 
1969 to 1973 an average of only 40% of the jury lists 
were female. Moreover, 623 (31%) of the women eligi­
ble for service (assuming they had no other basis for 
being exempt) used the mothers’ exemption to escape 
jury duty. And 195 of the 623 were employed outside 
the home. The disparity here is not the product of chance 
but the direct result of the “benign dispensation” ac­
corded women by Florida law, a dispensation which 
operates to place a disproportionate burden upon males 
and ensure non-representative juries. Jury service is * 111
6See Alaska Stat. §§9.20.010: 7 Ariz. Rev. Stat. Ann. §§21.201, 
21.202; 3B Ark. Stats. Ann. §§39.101 et sea.; 13 Cal. Code Civ. 
Pro. §§198 et sea.: 10 Del. Code Ann. §§4505 et seq.; 7 Hawaii 
Rev. Laws §§609-1 et seq.; 2 Idaho Code Ann. §§2-201 et seq.;
111. Ann. Stat. ch. 78 §§1 et seq. (Smith-Hurd); Ind. Ann. Stat. 
§4-7115: Iowa Code Ann. §§607.1 et sea.; 3A Kan. Stat. Ann. 
§§43-155 et seq.; 1 Ky. Rev. Stat. §§29.025, 29.035; 14 Me. Rev. 
Stat. Ann. §§1201 et seq.; 5A Md. Ann. Code art. 51, §§1 et seq.; 
Mich. Comp. Laws Ann. §§600.1306, 600.1307; 2 Miss. Code Ann. 
§§1762 et seq.; 1 Mont. Rev. Codes Ann. §§93-1301 et seq.; 1 Nev. 
Rev. Stat. §§6.010 et seq.; 2A N.J. Rev. Stat. §§69-1, 69-2; 4 
N.M. Stat. Ann. §§19-1-1 et seq.; IB N.C. Gen. Stat. § §9-3 et seq.; 
5 N.D. Cent. Code §§27-09.1 et seq.; 1 Ore. Rev. Stat. §§10.010 
et seq.; 17 Pa. Stat. §1279; 7 S.D. Code §§16-13-10 et seq.; Vt. 
Stat. Ann. tit. 12, Apn. VII, Pt. 1, R.25 §27; 2 Va. Code Ann. 
§§8-208.2 et seq.; W. Va. Code Ann. §§52-1-1 et seq.; Wis. Stat. 
Ann. §§255.01, 270.16.



10

not simply a right, but it is a duty, a “crucial citizen 
responsibility]” which should be shared by all men 
and women. Broadway v. Culpepper, 439 F.2d 1253, 
1258 (5th Cir. 1971).

Whether Florida’s mothers’ exemption accomplishes 
discriminatory treatment by virtue of its facial operation 
or its discriminatory impact, it should be closely scruti­
nized by this Court. The propriety of close scrutiny flows 
not only from the fact that the statute embodies a sex- 
based classification, but from the fact that it abridges 
the fundamental rights of all citizens to equally shared 
jury service and trial by representative juries. “ [Exclu­
sion of a discernible class from jury service . . . destroys 
the possibility that the jury will reflect a representative 
cross-section of the community.” Peters v. Kiff, 407 U.S. 
493, 500 (1972). III.

III. Ju ry  selection in Levy County discriminates 
against Negroes.

In Levy County the population is 25% black. The 
list of persons from which venires are chosen has varied 
between 7% and 18% black from 1969 to 1973, for 
an average of 13.2%. Negro citizens thus have been 
underrepresented by approximately 50%. This disparity 
is more dramatic statistically than the showing in Turner 
v. Fouche, 396 U.S. 346 (1970), and it was sufficient 
to establish a prima facie showing of systematic exclu­
sion. See Alexander v. Louisiana, 405 U.S. 625 (1971); 
and Carter v. Jury Commission of Greene County, 396 
U.S. 320 (1970).

While petitioners in the district court attacked the 
use of voter rolls in Florida as the sole source for the



11

names of jurors, a constitutional jury list may be com­
piled in Levy County without disturbing the source of 
names of jurors.7 Overrepresentation of whites and un­
derrepresentation of blacks could be corrected by draw­
ing Negro citizens at a higher rate than whites for jury 
service. See Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966). 
And while Florida statutes do not permit other sources 
to supplement the voter rolls, where the federal Consti­
tution commands that juries be representative, no im­
pediment or barrier to supplementing the list of voter 
rolls should exist. Nothing contained in Carter or any 
of the cases relied upon below requires this Court to 
condone continued and exclusive use of underrepresenta­
tive voter rolls which yield underrepresentative juries. 
The constitutional end sought is not use of any particu­
lar lists, but juries which represent a cross-section of the 
community. Broadway v. Culpepper, 439 F.2d 1253, 
1257 (5th Cir. 1971).

7This Court has approved the use of voter lists as the source of 
names for jurors, but the use of voter lists which are themselves the 
product of discrimination should not be countenanced. United 
States ex rel. Goldsby v. Harpole, 263 F.2d 71, 78 (5th Cir. 1959). 
Cf. Whitus v. Georgia, 385 U.S. 545 (1967).



12

Conclusion

For the foregoing reasons the petition for writ of 
certiorari should be granted.

OF COUNSEL:

R uth Bader G insburg 
M elvin L. Wulf 
22 East 40th Street 
New York, New York 10016 
American Civil Liberties 

Union Foundation, Inc.

Respectfully submitted,

L aughlin M cD onald 
N eil  Bradley 
Sarajane L ove

52 Fairlie Street, N.W. 
Atlanta, Georgia 30303

Kent Spriggs 
118 N. Gadsden Street 
Tallahassee, Florida 32301
American Civil Liberties 

Union Foundation, Inc.
ATTORNEYS FOR 
PETITIONERS



IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

No. 73-3849 
Summary Calendar*

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

Plaintiffs-A ppellants, 

VERSUS

DONALD HOLMES, ET AL., Etc., 
Defendants-A ppellees.

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

(May 30, 1974)
Before COLEMAN, DYER and RONEY, 

Circuit Judges.

PER CURIAM:
We affirm the judgment of the district court for the 

reasons set forth in its adjudication 365 F. Supp. 613. 
See Local Rule 21.1
*Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. Citizens Casualty 
Company of New York, et al., 5 Cir. 1970, 431 F.2d 409, Part I. 
JSee NLRB v. Amalgamated Clothing Workers of America, 5 Cir. 
1970, 430 F.2d 966.

la



2a

Filed July 1, 1974.
In the United States Court of Appeals 

For the Fifth Circuit

No. S73-3849

Mary Alice Marshall, et ah, for themselves 
and for all others similarly situated,

Plaintiffs-A ppellants, 

versus
Donald Holmes, et al., Etc.,

Defendants-A ppellees.

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

Before COLEMAN, DYER and RONEY, 
Circuit Judges.

BY THE COURT:
IT IS ORDERED that appellants’ motion for leave 

to file a Petition for Rehearing out of time is denied.



3a

Filed Sept. 28, 1973 
In the United States District Court 

For the Northern District of Florida 
Gainesville Division

Mary Alice Marshall, et al., Plaintiffs,

v.

Donald Holmes, et al., Defendants.
Gainesville Civil Action No. 508

OPINION-ORDER

STATEMENT OF THE ACTION
Plaintiffs in this class action attack the validity of 

Florida Statutes, Section 40.01 relating to qualifications 
and disqualifications of jurors. This statute1 is alleged 
to offend the United States Constitution both on its face 
and as applied. Plaintiffs are black and female citizens 
who are making a three-pronged attack on the method 
of selecting jurors in Levy County, Florida. They allege 
that (1) the statute is unconstitutional in that it limits

1The portion of the statute assailed provides:
“(1) Grand and petit jurors shall be taken from the male and fe­
male persons over the age of twenty-one (21) years, who are citi­
zens of this state and who have resided in this state for one (1) 
year and in their respective counties for six (6) months and who 
are fully qualified electors of their respective counties; provided, 
however, that expectant mothers and mothers with children under 
eighteen (18) years of age, upon their request, shall be exempted 
from grand and petit jury duty . . .” (Emphasis supplied)
This statute has been recently amended to lower the minimum age 
of qualification of prospective jurors to 18 years of age and this 
is not at issue in this cause.



4a

potential jurors to those registered jto vote, (2) that 
blacks and women are underrepresented on jury lists, 
and (3) that women are discriminated against since 
women who have children under eighteen (18) years 
of age may be exempt from jury service upon request. 
There are also claims under certain provisions of the 
Florida Constitution considered by this Court not worthy 
of comment.

Jurisdiction is founded also on the provisions of Title 
42, United States Code, Section 1981 and 1983 and 
Title 28, United States Code, Section 2281.

APPLICATION FOR THREE JUDGE COURT
Initially, this Court was confronted with the threshold 

issue of determining the propriety of three-judge court 
relief as demanded by plaintiffs and as contemplated by 
Title 28, USCA, Sections 2281 and 2284. Specifically, 
this Court had to decide whether the constitutional issue 
presented in the amended complaint was “substantial” 
thus requiring the empanelling of a statutory three-judge 
tribunal. Mayhue’s Super Liquor Store, Inc. v. Meikle- 
john, 426 F.2d 142, 144 (5th Cir. 1970).

If the constitutional issue is clearly lacking in merit 
or judicially emasculated by prior Supreme Court pro­
nouncements foreclosing the matter as a subject of con­
troversy on constitutional grounds, then the existence 
of a substantial federal question is deemed wanting. 
Ex parte Poresky, 290 U.S. 30 (1934). Logically 
then where the challenged statutory enactment with­
stands the constitutional attack and is assailed in its mere 
application by state authorities which action allegedly 
yields an unconstitutional result, the prerequisites for



5a

convening a three-judge court have not been fulfilled. 
Ex parte Branford, 310 U.S. 354, 361 (1939).

In the instant case plaintiffs question the statutory 
standard limiting those people eligible to serve on Flori­
da juries to those who are “fully qualified electors.” Ad­
ditionally, plaintiffs contest the statutory provision allow­
ing women who have children under eighteen (18) 
years of age to be exempt from jury service upon request. 
As a result, therefore, of the application of the Florida 
statute plaintiffs contend that unconstitutional discrimi­
nation against blacks and women obtain.

In Carter v. Jury Commission of Greene County, 396 
U.S. 320 (1970), the Supreme Court of the United 
States upheld the decision of a statutory three-judge 
court, finding that an Alabama statute, similar to the 
Florida statute challenged herein, was not “irredeemably 
invalid on its face.” Ibid., at 332. In assessing the merits 
of appellants’ argument the Supreme Court noted ap­
provingly of other state laws using the same or similar 
language to that contained in the Alabama statute. The 
Court then concluded that although the Alabama statute 
had been applied in such manner that blacks had been 
discriminated against, the statutory language standing 
alone passed constitutional muster and should not be 
stricken down. Compare Franklin v. South Carolina, 
218 U.S. 161 (1910).

Thus, it affirmatively appeared to this Court that the 
constitutional question sought to be raised for determi­
nation by a three-judge court was insubstantial and had 
been foreclosed by previous decisions of the Supreme 
Court. Ex Parte Poresky, supra. The application for 
convening a three-judge court pursuant to Title 28,



6a

USCA, Section 2284 was denied in a written order of 
this Court dated August 22, 1972.

It is, however, the view of this Court that the amended 
complaint does contain allegations of deprivation suffi­
cient to state a claim for declaratory and injunctive re­
lief. Accordingly, the Court makes the following find­
ings of fact and conclusions of law as may be required 
by Rule 52, Federal Rules of Civil Procedure.

FINDINGS OF FACT
1. Plaintiffs are male and female black citizens of 

Levy County, Florida. They are over the age of eighteen 
(18) years, have resided in Florida for one year and 
in the County for six months, and are fully qualified 
electors for Levy County, Florida.

2. The current system of selecting jurors in Levy 
County, instituted in August 1970, operates as follows:

(a) Questionnaires are mailed to all registered 
electors in Levy County.
(b) From the questionnaire responses an “eligi­
bility” list is developed; those individual electors 
not qualifying for exemptions from jury duty and 
those persons who failed to return the questionnaire 
forms are placed on the eligibility list.

3. In August 1970, there were 4,966 registered elec­
tors in Levy County, Florida, of which 4,415 were white 
and 551 were black persons.

4. From the total of 4,966 registered electors, 2,978 
names were placed in the eligibility file. Of this number 
376 were black persons and 2,602 were white persons. 
Of the 376 black persons, 172 were male and 204 female



7a

and of the 2,602 white persons, 1,434 were male and 
1,168 were female.

5. From the total of 2,978 names in the eligibility 
file, 625 names were selected on a random basis and 
were placed in the juror wheel.

6. Since the initial composition of the eligibility list, 
all newly registered electors are sent the questionnaire 
form referred to above and depending upon the availa­
bility to them of certain of the statutory exemptions, 
their names are placed on the eligibility list.

7. During the years 1969-1972, black persons in 
Levy County have consistently constituted approxi­
mately 11.30% of the duly registered electors for that 
county. The same statistics compiled by the Secretary 
of State and furnished to the Court by the plaintiffs ( see 
the Court’s Exhibit I attached herein), reflect that dur­
ing the years 1969-1973, black persons constituted 
12.81, 14.47, 7.64, 14.39 and 18.0% of those on jury 
lists.

CONCLUSIONS OF LAW

1. This Court has jurisdiction over the subject matter 
of and the parties to this action.

2. Plaintiffs contend herein that Florida Statutes, Sec­
tion 40.01, upon which the Levy County, Florida juror 
selection plan is predicated, is unconstitutional (1) in 
that it limits potential jurors to those registered to vote; 
(2) that blacks and women are underrepresented on 
jury lists and (3) that women who have children under 
eighteen (18) years of age are discriminated against 
since they may be exempt from service upon request.



8a

3. In regard to plaintiffs’ claim that use of a “regis­
tered elector” list to select jurors is an unconstitutional 
limitation upon the right of every individual to serve 
as a juror, this Court feels that the argument is badly 
eroded, if not absolutely foreclosed, by the Supreme 
Court pronouncements in Brown v. Allen, 344 U.S. 443 
at 474 (1952) and Carter v. Jury Commission of Greene 
County, 396 U.S. 320 at 332 (1970).

Although the instant case is an attack by plaintiffs 
seeking affirmative relief from alleged discriminatory 
juror selection, Brown v. Allen, supra, is helpful even 
though that case involved defendants challenging judg­
ments of criminal convictions on the ground of syste­
matic exclusion of Negroes from grand juries. In both 
cases the parties have a “cognizable legal interest in non- 
discriminatory jury selection.” Carter, supra, at 329.

Commenting on a system in Brown where property 
and poll tax lists were used, Justice Reed noted that,

“Our duty to protect the federal constitutional 
rights of all does not mean we must or should im­
pose on states our conception of the proper source 
of jury lists, so long as the source reasonably re­
flects a cross section of the population suitable in 
character and intelligence for that civic duty.” 
Brown, supra, at 474.

Justice Stewart in the opinion of the Court in Carter v. 
Jury Commission of Greene County, supra, adopted the 
language of Justice Reed in validating the multi-list sys­
tem in Greene County, Alabama.

It is, therefore, apparent to this Court that to the ex­
tent plaintiffs contest the use of a “registered electors”



9a

list, their argument is without merit. Clearly, this list if 
it reasonably reflects a cross section of the Levy County 
population is permissible.

4. Plaintiffs’ second contention is that blacks and 
women are underrepresented on Levy County juror 
lists. The Court understands this argument to be that 
whatever the listing system used in Levy County, it does 
not reasonably reflect a cross section of the population 
of Levy County. The plaintiffs are not contending that 
they are entitled to a proportional representation by race 
or by sex on any particular grand or petit jury since this 
has been foreclosed on numerous occasions by the Su­
preme Court and more recently rejected again in Carter, 
supra.

In order to prevail it is incumbent upon plaintiffs to 
show by substantial evidence that the Florida statute, 
under which the Levy County plan was developed, op­
erates to unfairly and unreasonably represent blacks and 
women on juror lists. Hoyt v. Florida, 368 U.S. 57, 69 
(1961); Hernandez v. State of Texas, 347 U.S. 479 
(1954); United States v. Pentado, 463 F.2d 355 (5th 
Cir. 1972).

An examination of the record reveals no evidence of 
such underrepresentation of either blacks or women. To 
the contrary the evidence would suggest that the black 
persons in Levy County in 1969, who represented 
11.51% of the registered electors of Levy County, con­
stituted 12.81% of individuals on juror lists. In 1971, 
11.08% of the registered electors were black yet 14.39 % 
of the individuals on juror lists were black. Figures for 
the first two months of 1973, reflect that blacks consti­
tute 18% of juror list names.



10a

To the suggestion that the comparison should be 
made between the percentage of blacks in the Levy 
County population and the percentage reflected on the 
juror lists, the Court can only take some direction from 
the statistics and findings in Carter v. Jury Commission 
of Greene County, supra. Plaintiffs would show that 
although approximately 25 % of the population in Levy 
County is black, they constitute only about 15 % of juror 
lists. However, the plight of appellants in Carter, supra, 
was that while 75% of the Greene County population 
was black, the largest number of blacks ever to appear 
on the jury list between 1961 and 1963 was 7% of the 
total. In 1966 only 4% of the blacks in Greene County 
found their way to the jury roll. Yet neither the District 
Court nor the Supreme Court enjoined the enforcement 
of the challenged statute.

It, therefore, is the view of this Court as to plaintiffs’ 
second contention that plaintiffs have not carried the 
legal burden of showing the discrimination which is 
alleged. Clearly, there has been no showing that the 
statute is incapable of being carried out with no dis­
crimination as is required by Carter v. Jury Commission 
of Greene County, supra. Accordingly, this Court finds 
that the elector listing system which is the basis for the 
Levy County juror lists and which is provided for in the 
Florida Statutes, Section 40.01, reasonably and suffi­
ciently reflects a cross section of the population of Levy 
County, Florida.

5. As to plaintiffs’ contention that the statute is 
unconstitutional because it allows women with children 
under eighteen (18) years of age to be exempt from 
jury duty upon their request, this Court finds the argu­
ment to be devoid of merit.



11a

The right of women to serve on juries without dis­
crimination is not an issue before this Court. The Court 
is doubtful that such an issue would ever again be seri­
ously raised in this day and time; certainly, the case law 
explicitly recognizing the right of women to serve as 
jurors is too numerous to mention. Even evidence in 
the record of this case to which plaintiffs stipulate as 
true, reflects for instance in the year 1972, that 48.29% 
of those individuals on juror lists in Levy County were 
women.

But the plaintiffs’ specific complaint is that the exemp­
tion in Florida Statutes, Section 40.01(1) which is avail­
able upon request is unconstitutional. This Court cannot 
countenance such an argument. The “restraint” which 
plaintiffs seem to suggest simply does not exist; the stat­
ute just does not operate to prohibit any woman who 
is a registered elector from serving on a jury in Levy 
County. Rather, the normal operation of the statute 
would place on women desiring the exemption, an affirm­
ative duty of requesting it. If in practice it is somehow 
discriminatory toward women, at least plaintiffs have 
failed to carry the burden of showing such discrimina­
tion. Hoyt v. Florida, supra.1

^ee  Hoyt v. Florida, supra. In 1961 the Supreme Court construed 
Florida Statutes 40.01(1). The Court upheld its validity even 
absent the provisions giving women the affirmative duty of claim­
ing the exemption which appears in its present amended form. The 
Court noted that:

“The disproportion of women to men on the list indepen­
dently carries no constitutional significance. In the adminis­
tration of the jury laws proportional class representation is 
not a constitutionally required factor.” Hoyt, supra, at 69. 

While it is alleged that, though not explicitly overruled, Hoyt has
been “eroded,” see Healy v. Edwards,___ F. Supp. ____ , E.D.
Louisiana 1973 (Slip N o ._____ , August 31, 1973), 42 LW 1041,



12a

In sum, the Court finds that Florida Statutes, Section 
40.01 is neither unconstitutional on its face nor as it is 
applied in Levy County, Florida, and as this Court has 
heretofore ruled, the issues raised in plaintiffs’ behalf 
have been foreclosed by previous decisions of the Su­
preme Court and thus a substantial federal question is 
clearly wanting for purposes of convening a Three-Judge 
Court. Ex parte Poresky, supra. It is, therefore,

ORDERED that judgment in this matter shall be 
entered disposing of the issues raised in the pleadings 
in favor of the defendants.

DONE and ORDERED in Tallahassee, Florida, this 
28th day of September, 1973.

s /D avid L. M iddlebrooks 

David L. M iddlebrooks 

United States District Judge

by Reed v. Reed, 404 U.S. 71 (1971), the Court notes that Reed 
involved a “statutory scheme which draws a sharp line between 
the sexes solely for the purpose of achieving administrative con­
venience.” Reed, supra, at 77. The present amended form of Flori­
da Statutes 40.01(1) which is contested in the matter before this 
Court involves no such statutory scheme solely for administrative 
convenience. More importantly, however, the proposition in Hoyt 
that plaintiffs must show the alleged discrimination by substantial 
evidence, upon which this Court has relied, is unscarred.



13a

United States District Court 
For the Northern District of Florida 

Gainesville Division

Civil Action File No. GCA 508

Mary Alice Marshall, et al. 
vs.

Donald Holmes, et al.

JUDGMENT

This action came on for hearing before the Court, 
Honorable David L. Middlebrooks, United States Dis­
trict Judge, presiding, and the issues having been duly 
heard and a decision having been duly rendered,

It is Ordered and Adjudged
That the plaintiff take nothing, that the action be dis­

missed on the merits, and that the defendants, Donald 
Holmes et al, recover of the plaintiffs, Mary Alice Mar­
shall et al, their costs of action.

Dated at Tallahassee, Florida, this 28th day of Sep­
tember, 1973.

Filed Sept. 28, 1973.

M arvin  S. W aits 
Clerk of Court

F. F. T aylor  
Deputy Clerk



14a

In the United States District Court 
For the Northern District of Florida 

Gainesville Division

Mary Alice Marshall, et al., Plaintiffs, 
versus

Donald Holmes, et ah, Defendants.
Civil Action No. 508

STIPULATED FACTS

The parties agree that the following facts are true and 
correct to the best of their knowledge and stipulate that 
they shall with this Court’s consent be the operative facts 
for this litigation.

1. The current system of picking names for the jury 
list was instituted in Levy County in August, 1970.

2. A questionnaire was mailed to each registered elec­
tor. Exhibit A to Motion for a Three Judge Court. An 
eligibility file was developed by eliminating those persons 
who in the judgment of the Defendants qualified for 
statutory exemptions from jury duty. Those who did not 
qualify for exemptions and those persons who did not 
return their questionnaires were placed into an eligibility 
file.

3. The total voter registration as of August 1970 was 
4,966 of which 4,415 were white and 551 were black. 
(A male-female breakdown of this figure was requested

Filed April 20, 1973.



15a

from the Supervisor of Elections but this information 
was not kept by that office and is not available.)

4. The names of 376 black persons were placed in 
the eligibility file of which 172 were male and 204 fe­
male. There were 2,602 white persons’ names placed 
in the eligibility file, 1,434 being male and 1,168 being 
female.

5. From the total of 2,978 names, 625 names were 
selected on a random basis from the eligibility file to be 
placed in the box from which jurors’ names are drawn.

6. The figures in Exhibit I reflect the best and most 
complete knowledge of the parties.

7. Subsequent to the initial composition of the list, 
each newly registered elector has received a question­
naire. Each elector who has died or moved that is made 
known to the Defendants is eliminated from the file.

8. The cards which are placed in the file of those who 
are eligible voters contain the following information: 
the name, address, date, race, sex, and an indication of 
which year(s) the person served as a juror.

9. According to the 1970 Census 25.2% of the popu­
lation of Levy County was “Negro and other races.” The 
Census indicated that only 11 of these persons were not 
Negroes.

s/ K ent Spriggs, 
for the Plaintiffs

s/ Arthur C. Can ad ay, 
for the Defendants



EXHIBIT I

ELECTORS JURY LISTS ELIGIBILITY FILE
YEAR Wh Bla %B M F % F Wh Bla %B M F % F Wh Bla %B M F % F

1969** 4643 604 11.51 177 26 12.81 123 80 39.41

1970 130 22 14.47 114 38 25.0

Aug.
1970 4415 551 11.1 2602 376 12.62 1606 1372 46.07

1971** 4506 573 11.08 145 12 7.64 100 57 36.31

1972 5740 745 11.49 351 59 14.39 212 198 48.29

1973* 41 9 18.0 31 19 38.0

* Figures for 1973 available only thru February 27.
Statistics listed in row “August 1970” derived from Affidavit of W. F. Gavin, Chairman of the Levy 
County Jury Commission; statistics under section headed “Jury Lists” derived from Levy County 
Venire sheets; statistics listed under “Electors” for 1972 provided by Secretary of State; percentages 
calculated by Plaintiffs’ counsel.

**Statistics listed under “Electors” for 1969 and 1971 provided by Secretary of State.



17a

In the United States District Court 
For the Northern District of Florida 

Gainesville Division

Mary Alice Marshall, et ah, Plaintiffs, 

versus

Donald Holmes, et al., Defendants.

Civil Action No. 508

SUPPLEMENTAL STIPULATION

1. The total number of women claiming the Section 
40.01 (1) exception for mothers and expectant mothers 
in Question 17 is 623 as of April 23, 1973.

2. On that same date, the number of those 623 who 
indicated in their answer to Question 4 that they had 
outside employment was 195.

3. The year of birth of the youngest child indicated 
in the answer to Question 17 was as follows:

1952 0
1953 6
1954 18
1955 23
1956 29
1957 19
1958 25
1959 28

Filed May 11, 1973.



18a

1960 33
1961 29
1962 27
1963 28
1964 32
1965 47
1966 35
1967 38
1968 48
1969 49
1970 48
1971 31
1972 11
1973 1

expectant mothers 12

s /  K e n t  Spr ig g s , ____________________
for the Plaintiffs, for the Defendants.

4/24/73

The above figures were compiled by Plaintiffs. While 
Defendants have no personal knowledge of them, they 
are willing to assume their accuracy for purposes of 
this case.

s / A r t h u r  C . C anaday , 
for the Defendants

5/9/73