518 F. 2d 791 - McGhee v. King

This case concerns exclusion of blacks and women from juries in Madison County, Florida. The applicable Florida statute, § 40.01,1 requires selection of jurors from voter registration lists. Paragraph (2) thereof provides for exclusions based on certain objective criteria and paragraph (3) provides for subjectively-based exclusions. Plaintiffs contend that blacks and women were unconstitutionally excluded from jury venires selected pursuant to this Florida statute.

The District Judge recognized the existence of pre-1972 statistical disparity between the percentage of blacks and women on jury venires versus blacks and women in the population and on voter lists. He found, however, that there was "no compelling evidence" that the discrepancy was the result of systematic discrimination and found that the jury commissioners had no intent to discriminate. These were erroneous legal standards.

In order to establish a prima facie case of systematic exclusion of blacks from grand and petit juries these plaintiffs have a twofold burden. First they must make "a showing of marked disparity between the percentage of Negroes among persons putatively qualified to serve as jurors and the percentage of Negroes actually on the jury lists in the case in question." Singleton v. Estelle, 492 F.2d 671, 677 (CA5, 1974). See Alexander v. Louisiana, 405 U.S. 625, 630, 92 S.Ct. 1221, 31 L.Ed.2d 536, 541-42 (1972); Turner v. Fouche, 396 U.S. 346, 360, 90 S.Ct. 532, 24 L.Ed.2d 567, 579 (1970). Second, plaintiffs must demonstrate that "the discriminatory result in the jury list accompanied a system of jury selection permitting possible racial identification of potential jurors at any stage in the process of selection of the jury list."2 Singleton, supra, at 677. See Alexander, supra, 405 U.S. at 630-31, 92 S.Ct. 1221, 31 L.Ed.2d at 542; Turner, supra, 396 U.S. at 360, 90 S.Ct. 532, 24 L.Ed.2d at 579; Wright v. Smith, 474 F.2d 349, 351 (CA5), cert. denied, 414 U.S. 853, 94 S.Ct. 149, 38 L.Ed.2d 102 (1973). No discriminatory intent need be demonstrated and the jury commissioners' good faith is of no relevance. Alexander, supra, 405 U.S. at 632, 92 S.Ct. 1221, 31 L.Ed.2d at 543; Black v. Curb, 464 F.2d 165, 169 (CA5, 1972); Salary v. Wilson, 415 F.2d 467, 472 (CA5, 1969). Once a prima facie case has been established, the selecting officials have the burden of showing that permissible racially neutral selection criteria have produced the result. Alexander, supra, 405 U.S. at 631-32, 92 S.Ct. 1221, 31 L.Ed.2d at 542; Turner, supra, 396 U.S. at 360-61, 90 S.Ct. 532, 24 L.Ed.2d at 579; Singleton, supra, at 677.

The findings of the District Judge do not address themselves to these respective burdens. The case must therefore be remanded for proper findings. We note that evidence submitted by plaintiffs tends to show substantial changes in the statistical makeup for the 1972-73 period. Blacks, who comprise approximately 30% of the voters in Madison County, composed approximately 15% of the jurors in the period 1967-71 but approximately 25% of the jurors in the period 1972-73. Similarly, women, who compose approximately 53% of the voters in Madison County, never constituted more than 28% of the jurors in the period of 1967-71 but constituted approximately 48% of the jurors in the period 1972-73. In view of these significant changes the court on remand should require the defendants to bring the record up to date, see Raiford v. Dillon, 430 F.2d 949 (CA5, 1970); Ford v. White, 430 F.2d 951 (CA5, 1970), and findings should be made based on that fresh record. The District Court on remand should of course determine whether an injunction is appropriate based on all the facts and circumstances of this case. An injunction may be warranted despite a finding that the updated percentages comply with constitutional standards. See United States v. W. T. Grant Co.,345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); Pullum v. Greene, 396 F.2d 251 (CA5, 1968).

The Supreme Court has not addressed itself to the precise question of whether the allocation of burdens established for cases of racial discrimination in jury selection applies to cases of jury discrimination on the basis of sex. See Penn v. Eubanks, 360 F.Supp. 699, 703 (M.D.Ala., 1973); Quadra v. Superior Court of the City and County of San Francisco, 378 F.Supp. 605 (N.D.Cal., 1974). Compare Taylor v. State of Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), and Alexander, supra, 405 U.S. at 633-34, 92 S.Ct. 1221, 31 L.Ed.2d at 544-45. In view of this, and of the possibility that the discrimination against women alleged to exist in this case may prove to be presently nonexistent, we pretermit consideration of this issue.

Reversed and remanded.