This action was instituted as a class action by male and female residents of Lowndes County, Alabama, against the individual members of the jury commission of Lowndes County, Alabama. Subsequently, the plaintiffs amended by adding as defendants other officials of Lowndes County and the State of Alabama, who, according to the amended complaint, performed certain functions in connection with the jury selection and jury use in Lowndes County, Alabama. By the complaint as amended, plaintiffs alleged that the defendants have systematically excluded Negro male citizens and female citizens of both races from jury service in Lowndes County, Alabama. Because of the challenge to the Alabama statute which totally excludes women from jury service, a three-judge district court was designated and convened, pursuant to 28 U.S.C. §§ 2281, 2284, to try this case. Subsequently, the United States moved for leave to intervene pursuant to § 902 of the Civil Rights Act of 1964; this motion was based upon a complaint in intervention and a certification by the Attorney General of the United States that, in his judgment, this case was of general importance.
This case was submitted on the issues made up by the pleadings and proof, and, upon consideration of the evidence, consisting of the oral testimony of several witnesses, together with the exhibits thereto, this Court now proceeds to make and enter in this memorandum opinion, as authorized by Rule 52, Federal Rules of Civil Procedure, the appropriate findings of fact and conclusions of law.
The plaintiffs, male and female Negro citizens and residents of Lowndes County, Alabama, seek of the defendants, through this Court, as provided under the Constitution and laws of the United States, injunctive relief to remedy alleged conduct of the defendants (including the denial to the plaintiffs of the equal protection of the laws on account of race or color) in violation of the Fourteenth Amendment to the Constitution and 42 U.S.C. § 1981. The plaintiffs bring this action in their own behalf and on behalf of others similarly situated, pursuant to Rule 23(a)(3) of the Federal Rules of Civil Procedure. The plaintiff-intervenor is the United States of America; its standing to intervene is established by 42 U.S.C. § 2000h-2 and by Rule 24(b) of the Federal Rules of Civil Procedure. The defendants are the members and clerk of the jury commission of Lowndes County, Alabama; the judge for the Second Judicial Circuit of Alabama, which includes Lowndes County; the probate judge and the sheriff of Lowndes County; the solicitor and the clerk of the Second Judicial Circuit of Alabama, which includes Lowndes County; the foreman of the grand jury of Lowndes County; and the solicitor of Lowndes County.
By leave of this Court, upon an appropriate petition, the Alabama Circuit Judges Association filed its brief as amicus curiae. The brief filed on behalf of the Alabama Circuit Judges Association concerns itself with the relief sought by the plaintiffs and the plaintiff-intervenor against the defendant circuit judge; the Association emphasizes in its brief that it does not oppose any relief sought other than that sought against the circuit judge for the Second Judicial Circuit of Alabama, which includes Lowndes County.
The procedure for the selection of jurors in Alabama is controlled by statute.
Each county in Alabama has a jury commission composed of three members appointed by the Governor.
These commissioners, in order to be qualified, must be electors of the county, reputed for their fairness, impartiality, integrity and good judgment; the commissioners so appointed serve for the tenure of the Governor who appoints them.
The jury commissioners are required to place on the jury roll "the names of all male citizens of the county who are generally reputed to be honest and intelligent men and are esteemed in the community for their integrity, good character and sound judgment."
The clerk of the jury commission is required by law to "obtain the name of every male citizen of the county over twenty-one and under sixty-five years of age and their occupation, place of residence and place of business * * *."
The jury commission is required to maintain a jury roll containing the name of "every male citizen living in the county who possessed the qualifications herein prescribed and who is not exempted by law from serving on juries."
As a part of the procedural requirements the names of the persons on the jury roll must also be printed on separate cards, which are placed in a jury box. It is the duty of the commission to see that the name of each person possessing the qualifications 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 Alabama law further requires the jury commission and its clerk to scan the registration lists, the list returned to the tax assessor, any city directories and telephone directories, and any and every other source of information, and to visit every precinct in the county at least once a year.
When jurors are required for a court session, the presiding judge draws from the jury box the names of the individuals to serve as jurors during the term in question. These jurors may be either petit jurors or grand jurors as the situation requires. The names so drawn are sent to the clerk of the court, and the clerk prepares a venire; the venire containing these names is sent to the sheriff who summons the persons listed to appear and serve.
The presiding judge has the authority to pass upon claims for exemptions, excuses and qualifications of those individuals who have been summoned to appear and serve as jurors.
Either party in civil and criminal cases has a right to examine jurors as to their qualifications, interests, or any bias that would affect the trial of the case. In civil actions each party has a certain number of preemptory challenges, and in criminal cases the struck jury method is the exclusive means of selecting juries.
The 1960 census reflects that the total population of Lowndes County was 15,417 and that Negroes comprised 80.7% of the total county population and 72.0% of the adult male population. The white males between the ages of 21 to 65 totaled 738, and the nonwhite males between the ages of 21 to 65 totaled 1,798. The white females between the ages of 21 to 65 totaled 789, and the nonwhite females between the ages of 21 to 65 totaled 2,278.
The evidence in this case reflects that before each term of court the presiding judge of the Second Judicial Circuit would draw at random from the jury box a sufficient number of cards (usually 110) to provide jurors for the next term of court to be conducted in Lowndes County. When the number of cards in the jury box became depleted to the extent that the judge could not make a complete draw, he notified the clerk of the jury commission, who informed the commissioners that the box required refilling. At times the jury commissioners refilled the box or added names on their own initiative; when they filled the jury box, they would put approximately 250 names in it. The testimony reflected that the judge found it necessary to suggest that the jury box be refilled "probably once a year." The Lowndes County jury commissioners, in selecting persons they considered to be qualified for jury service, used as their primary source the Lowndes County voting lists on which no Negroes were named. The other source (personal knowledge) accounted for the names of seven Negroes listed on the Lowndes County jury roll in the twelve-year period from 1953 until this action was commenced. From 1953 to the time this suit was instituted, Negroes comprised little more than 1% of the persons selected by the commissioners as eligible and qualified for jury service in Lowndes County, Alabama. There was no conflict in the evidence to the effect that there were a substantial number of Negro citizens residing in Lowndes County who were qualified for jury services under Alabama law. As a matter of fact, it was stipulated between counsel that there were qualified Negroes in Lowndes County whose names had not been placed on the jury rolls or in the jury box by the jury commission. The actual procedure followed by the jury commission of Lowndes County, Alabama, in replenishing the jury box was for the commission to borrow the qualified voter list from the county probate judge, to meet, and during the course of the meeting have one of the commissioners read the names of all males on the qualified voter list, most of whom were known to one or more of the commissioners. As the list was read, the persons whose names appeared thereon were either summarily approved or rejected as prospective jurors. Discussion of the qualifications was generally unnecessary. It is especially significant that there were no Negroes registered to vote in Lowndes County prior to March 1, 1965. Literacy was not considered by the commissioners as an absolute prerequisite in order for a person to be deemed by them qualified for jury service. As a matter of fact, the jury commissioners have not used any method for testing a person's ability to read and write. As the names were read from the qualified voter list, those approved by the commissioners were recorded on jury cards. The cards were placed in the jury box for use by the presiding judge. The extent to which the qualified voter lists were used by the commissioners is revealed by comparing the contemporaneous voting lists with the venire lists from 1953 to the time this case was tried. This analysis reflects that 98.0% of the names on the venires of prospective jurors appeared on the contemporaneous voting lists. It is especially significant that there were no Negroes registered to vote in Lowndes County prior to March 1, 1965; the voting lists for Lowndes County, Alabama, during this time included the names of approximately 1200 white male citizens. Thus, no Negroes' names appeared on the jury commissioners' primary source for finding and selecting prospective jurors. The evidence further reflected that the commissioners made some efforts to secure the names of persons considered qualified as potential jurors whose names were not on the qualified voter lists. These efforts resulted in the names of seven Negroes being placed in the jury box from 1953 until August 25, 1965, the date this action was commenced. During this period - approximately twelve years - these seven Negroes were drawn for jury service a total of nineteen times. After the complaint in this action was filed, the jury commission met to replenish the jury box and at that time the names of 19 Negroes were placed in the box. The evidence reflected that the jury commissioners considered this to be a sufficient number to satisfy the requirements of the law. No Negro has ever served on a civil or criminal petit jury in Lowndes County, Alabama.
In addition to the above procedure, which resulted, in the opinion of this Court, in an extremely aggravated case of systematic exclusion by reason of race, the commissioners followed a procedure which restricted the number of qualified white persons whose names were placed in the jury box. An analysis of the jury records as offered and received in evidence in this case reflects that a very limited number of persons has constituted the core of the county jury system in Lowndes County, Alabama, and that the names of this extremely limited group have been repeatedly circulated through the jury box. As a matter of fact, the names of only 670 persons have been on cards in the box since 1953. Of these 670 individuals, 211 have had their names in the box six or more times, and some as many as fifteen or sixteen times. These 211 persons collectively account for 66.5% of the total of 2,748 names, including repeats that have appeared on the venire lists in Lowndes County, Alabama, from 1953 to the present time. Fifty-seven of these persons were called for jury service three successive terms. Seven of them were called for jury service four successive terms.
The procedures as outlined above, adopted and followed by the jury commissioners in Lowndes County, Alabama, since 1953, have resulted in jury service in that county being limited to a small number of adult, white male citizens, with Negro male citizens and female citizens of both races being systematically excluded either by practice or, in the case of the women, by statute.
THE SYSTEMATIC EXCLUSION OF NEGROES BY RACE
In this civil action the plaintiffs assert the right of Negroes, collectively, to be free from racial discrimination in jury selection procedures. They invoke the constitutional principle that systematic exclusion for the purposeful discrimination against Negroes in selecting persons qualified for jury service involves arbitrary state action directly contrary to, and in violation of, the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The rule of law that Negroes may not systematically be excluded from the opportunity to serve on civil and criminal juries, grand and petit, in the state and federal courts has several basic aspects. The qualified Negro citizen has a right not to be denied participation in the democratic institution by which all citizens become most directly involved in the administration of justice. When Negroes are excluded from jury service because of their color, the action of the state "is practically a brand upon them, affixed by the law, an assertion of their inferiority * * *." Strauder v. State of West Virginia, 100 U.S. 303, 25 L. Ed. 664. As the Supreme Court stated in Strauder v. State of West Virginia:
"The very idea of a jury is that it is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine * * *."
State laws governing the qualifications of voters are also subject to the limitations of the Equal Protection Clause. Carrington v. Rash, 1965, 380 ...