Hoyt v. Florida

PETITIONER:Hoyt
RESPONDENT:Florida
LOCATION:Vilage of Kake

DOCKET NO.: 31
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 368 US 57 (1961)
ARGUED: Oct 19, 1961
DECIDED: Nov 20, 1961

Facts of the case

A Florida statute automatically exempted women from jury duty and did not place women on jury lists. Women could, however, volunteer and register for jury duty. After an all-male jury convicted Mrs. Hoyt for murdering her husband, she appealed the decision to the Florida Supreme Court. The Florida Court upheld the conviction.

Question

Did the Florida statute violate the Equal Protection Clause of the Fourteenth Amendment?

Earl Warren:

Number 31, Gwendolyn Hoyt, Appellant, versus Florida.

Mr. Ehrmann.

Herbert B. Ehrmann:

May it please the Court.

So far as I know, this is the first case before this Court involving the issue as to whether a woman may be tried by an all-male jury and convicted under a statute which virtually excludes women and an administration of the statute which almost makes certain that there will be no women.

We meet that issue frontally in this case.

Gwendolyn Hoyt was tried on information in the Superior Court or in the court of criminal record of Hillsborough County, Florida.

She was charged with killing her husband and the information stated that she was to be tried for second degree murder.

A second degree murder in the State of Florida is defined as follows: “When perpetrated by an act imminently dangerous to another and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual, it shall be murder in a second degree and shall be punished by imprisonment in the state of prison for life or for any number of years not less than 20 years.”

In other words, the distinction of a second degree murder from manslaughter was a state of mind.

Mrs. Hoyt pleaded not guilty and not guilty by reason of temporary insanity.

The jury could have found her not guilty, could have found her guilty of manslaughter or could have found that she was guilty of second degree murder having a depraved mind.

Florida counsel who tried the case, and by the way he is the courtroom today, challenged the jury panel of approximately 60 male jurors with a motion to quash.

He challenged it on two grounds.

First, that the statute under which the jury was selected was a denial of equal protection and due process.

And that the method of administering the statute by the jury commissioners was also a denial of equal protection and due process.

Florida is one three states which has a jury chosen under a statute which says that women are qualified to be jurors and then goes on to say that only those women who register with the clerk courts may be called.

Potter Stewart:

There are additionally three states, are they not, Mr. Ehrmann —

Herbert B. Ehrmann:

There are additionally —

Potter Stewart:

— which should — do not —

Herbert B. Ehrmann:

— three states which exclude women entirely.

Potter Stewart:

Right, right.

Herbert B. Ehrmann:

So that there are six states today, which either exclude women entirely or provide that they must volunteer.

Now what happened in Florida is apparently what happens — what has happened in states — other states where they had this type of statute, we have cited in — on the brief the reference to various authorities, mainly that where women have to volunteer for jury service there’s practically no pool out of which women can be drawn.

It happened in New York and it’s happened in other jurisdictions because apparently the — to take the initiative and volunteer for jury service is an obstacle.

One wonders how many men would be available if they had to volunteer.

Felix Frankfurter:

One of the argument as to women suffrage was that women would be more aggressive or at least more alert (Inaudible) than men.

Herbert B. Ehrmann:

Yes.

Despite the fact that I shall argue that women and men are very different, they have both actuated by the same impulses on many occasions when one is to invite themselves to public service.

Felix Frankfurter:

Don’t stress that too hard.

Herbert B. Ehrmann:

Pardon?

Felix Frankfurter:

Don’t stress the equality of behavior between the men and women too hard.

Herbert B. Ehrmann:

Well, I thought I qualified it by saying there are certain particulars.

Felix Frankfurter:

You’d get into trouble (Inaudible) —

Herbert B. Ehrmann:

I’m afraid I would.

That’s why I tried to be conservative in my statement.

Earl Warren:

I don’t suppose you can say either that women are less active in political life than men, would you Mr. Ehrmann?

Herbert B. Ehrmann:

I would say that they are less active for certain reasons of tradition, and custom, and culture, but that they are very active in public life today, extremely so.

In fact, one out of every 20 delegates to the United Nations is a woman.

So that one out of 20 delegates in United Nations is a woman, but only four tenths of 1% of the eligible women in Florida registered.

In 10 years from 1947 to 1957, 218 to 220 women registered for service on the jury.

In the last five years, only 35 registered for service.

Potter Stewart:

Is that where, in the State of Florida, or in this county?

Herbert B. Ehrmann:

That’s in the county.

Potter Stewart:

In this particular county?

Herbert B. Ehrmann:

In this particular county.

So that out of 46,000 women eligible for jury service in Hillsborough County, only 220 were available as having registered.

Felix Frankfurter:

Have we got any — have we any statistics as to the number of women that can serve, that are eligible in the federal courts in the Southern District of New York that can serve?

Herbert B. Ehrmann:

No, I do not have those statistics.

I do know this, however, Mr. Justice Frankfurter knows that New York now has a different statute.

Women may be exempted because (Inaudible), but nevertheless, there are many women serving on juries to the State of New York.

So we have here a demonstration coupled with authorities who confirm that that’s what’s happened in other states that this type of statute just doesn’t work and one wonders whether it was intended to work.

I am reminded of Mr. Justice Black’s remark that whether ingeniously or ingenuously women — a certain class may be excluded.

The effect of this is to remove women almost entirely in the jury list.

Now, we come to the question of the administration of the law and we have this situation.

The testimony, it is in the record, in the case that this is what happens.

In this county they’re required to make up a list, a reservoir of 60 thou — of 10,000 names available for jury service and out of that 10,000 names a panel is selected.

In this case, the jury commissioners through their clerk or through their clerk — or through the clerk of court testified that they put in 10 names each year and approximately 10,000 masculine names, so that whereas on the operation of the statute only one-third of 1% would be available for jury service, when the jury commissioners got through only one-tenth of 1 % were available for jury service.

They gave no explanation of this other than to say that they had always done it and this was the testimony on page 17 of the record.

The lady who made up this list of 10,000 names said, “Mr. Lockhart told me at one time to go back approximately two or three years and get the names because there were recent women.”

And she said, “Well, the reason I placed him is, I went back two, three, or four years and noticed how many women they had put on before and I’d put on approximately the same number.”

Herbert B. Ehrmann:

That is for four years, they had put only 10 women’s names in and she did the same.

John M. Harlan II:

When did the statute in Florida (Inaudible)?

Herbert B. Ehrmann:

I think 1927, yes.

John M. Harlan II:

(Inaudible)

Herbert B. Ehrmann:

I do not know.

I only have a guess.

Felix Frankfurter:

They probably exclude it altogether, weren’t they Mr. —

Herbert B. Ehrmann:

I think that is so, but I would be guessing.

Now on page 19 of the record, we find that this took place.

They used up 2500 names of 10,000 from the year before so that the jury commissioners then were putting a new 2500 names into — to make up the 10,000.

They couldn’t use the names of those who’ve been drawn so they put in another 2500 names.

Now when it came, if Your Honors please, to the second 2500 names, no women at all were put in.

And when asked why that was so, they said, “Well, we had 10 names in there that weren’t drawn from the year before, so we just let them ride.”

So that apparently for years also, they just kept these same 10 women in there, in the — as available jurors and never went to the women’s list at all and this is her testimony.

“In 2500 that you added, were there any new women added?”

“No — there were — no, there were no new women added.”

“No new women added at all?”

“No, just the ones that were in the box still of the 7000, which were those that were left from the preceding year.”

“So then on March 8, 1957, no women’s names were added to the jury list?”

“Well, they weren’t added, no.

We just used the ones we had” and then a question by Mr. Hobbs, “In putting this in March 8, you didn’t pay a bit of attention to this list at all,” meaning women’s list, “You didn’t use this list at all?”

Answer: “No, we just used the women that were left in the box.”

There was no explanation for this.

I think it was just — it must have been that (Inaudible) the rest of the testimony, they just weren’t taking it seriously, that’s all.”

Service of women on jury, hardly any of them volunteered.

They paid no attention to the duty to see that a representative jury was chosen.

Now, this absence and exclusion and limitation of women is highlighted by the fact that of this particular case.

The issue in this case as told by the Judge Rothman’s majority opinion was the effect on the defendant’s mind, state of mind, of the events which she described in which the court found to be with — without dispute to be the facts.

You see, the jury in this case was not called upon to reconcile conflicting facts.

There is no doubt that Mrs. Hoyt struck her husband.

Herbert B. Ehrmann:

That he was sent to the hospital.

Immediate medical attendants couldn’t help him.

He died during the night.

So that there was no issue of fact as to her committing the act was concerned.

The only issue before the jury was what effect did the marital discord at her attempts to get her husband to come back to live with her at his flat as you will see from the judges — statement her flat — that his flat refusal have anything more to do with her in his declaration that he was through and he is going to leave her and her little boy the next morning for good, never wanted to see her again.

And it was at that moment which the court describes she happen to have a damaged bat in her hand which her boy had found in an alley during the day, that had left on the floor and just as she picked that thing up, he then signed off.

He said he was through with her.

He never wanted to see her again and that’s when she struck him and struck him several times, apparently in a frenzy.

She was an epileptic.

You will see here there was no dispute as to her medical history.

She was an epileptic with damage to her brain and she went out of control.

Now, I’m suggesting to Your Honor that I don’t believe a professor at a law school could think up facts of a case which tested this issue of the exclusion of women from a jury more than this.

This was a domestic affair.

This was a husband and wife matter.

This was — involved all the complex emotions that exists in a relationship of that type, a woman’s efforts to reclaim her husband, his scorn, her outburst.

Now apparently, the men thought that what she did was evidence of a depraved state of mind.

We don’t know what women would have done on that jury, but shouldn’t she have had the chance of having a woman on that jury who would have said that — now, wait a minute, this woman saw her home, her husband, and a father of her child go away.

In one final statement she made and that came at the climax of the day of considerable emotion in which she had struggle to reclaim.

Maybe she wouldn’t have said it, maybe it wouldn’t have any (Inaudible) — wasn’t she entitled to have people who think like that on the jury.

We have put in on the brief here references to sociological studies showing the difference in approach frequently between men and women.

I think they tend to backup Mr. Justice Douglas’s statement that they’re not fungible, men and women are not fungible.

That women emphasize more the home, children, husband, their approach is far emotional.

They are mediators rather than aggressors in discussion and after all, I don’t think that these studies tell us anything we don’t know.

They tend to corroborate the obvious because all of us know whether it is from literature, what every women knows by berry or (Inaudible), men and supermen or — that celebrated song that in My Fair Lady, why aren’t women like men, that there is a difference and they think of as different.

And that while individual women will be different from men about — perhaps be not so very different from men — as a class they are different.

I am reminded of – (Inaudible) was once introduced at a suffragist meeting as a woman with a brain of a man.

And in responding to the introduction she said before I regard that as a compliment, I’d like to see the man whose brain I have.

Now, Mrs. Hoyt was denied in a case in which it is thrown into high relief, the mediating, the understanding of a woman who sees her home, the father, the child and the husband going away after as I said it, terrifically tensed emotional day.

I will not go into all of the facts.

You — Your Honors will read them, but that was the situation.

Herbert B. Ehrmann:

It is a question of evaluating how far these pressures broke her down which would have made all difference in the world between a decision as to whether she was suffering from temporary insanity, whether it was manslaughter, or whether she had a depraved mind.

And this jury of 12 men decided that she had a depraved mind.

And so she was sentenced to 30 years at hard labor and so we are here before Your Honors.

Now I don’t think it requires very much argument just to show that women are a different class.

We live with these things so much, if Your Honor please, that we forget that they exist.

It’s like a person who is working in a factory and the hum is constantly going on, he doesn’t even notice the hum anymore.

My associate, Mrs. Dreben here who wrote most of the brief experimented by asking men what they thought of this case.

Well, some were indifferent, some thought — the moment she would say to them, supposing that a man was being tried for killing his wife or his mistress in a rage and supposing the jury consisted of 12 women, what would you think then and that apparently woke them right up, they said of course, that wouldn’t be fair.

The thing is that we just get accustomed.

There’s been no class I might say in all history that has been so universally and persistently discriminate against in women.

It’s only on the last half century that they’ve been emerging from a position of inferiority.

They are also excluded from eating spices, but I don’t notice that they are having sit outs as a result of it, but there is this short division.

And — while — during the certain periods of time as Your Honors know that — they were — they had no legal personality at all particularly if they were married.

Felix Frankfurter:

You sure you haven’t — you remarked a minute ago, that there’s an incitement of breach of the peace.

(Inaudible) —

Herbert B. Ehrmann:

It might be if I was ordered off the premises, if I follow the discussion right.

Felix Frankfurter:

And if you’re a woman —

Herbert B. Ehrmann:

Sir?

Felix Frankfurter:

And if you were a woman?

Herbert B. Ehrmann:

And if I were a member of an excluding class?

Felix Frankfurter:

Yes.

Herbert B. Ehrmann:

That is true.

Now, I’m not going to argue the law at length because to speak frankly, nearly everything I have learned of constitutional law in this area I’ve learned from you.

I mean the last 10 or 15 years has been remarkable for a development of the law relating to this whole question of the selection of jurors, both in the majority opinions, in the dissents and the concurring opinions for different reasons.

One by one, the early distinctions have been removed by this Court such as that it relates only to color and race because the Congress have passed the statute on that subject.

Or, that you have to show prejudice to show denial of equal protection, or the fact that — our concepts of equal protection have been changing.

I remember in one of the cases Mr. Justice Frankfurter has said, it’s about time that we recognize the fact that we now have a different perception what constitutes equal protection.

This Court has been bringing in many of the judges that are sitting here, have been bringing the constitutional question on the selection of jury abreast of the times.

There’s no longer any distinction as to it — that if a class is an economic class or if a class is not one of race or color but of a nationality or of any other group.

In the Hernandez case which firmly states that if a defendant is a member of a class which is excluded and there is no justification for it, it is a denial of equal protection, and that’s the situation that we have here.

Herbert B. Ehrmann:

I suggest to Your Honors that the only issue that we have is whether or not there is a sufficient justification for this statute.

If there is, then the statute is constitutional, but it’s no excuse for the behavior of the jury commissioners who arbitrarily limited what little chance there was.

But what justification is there for the statute?

The trial judge himself who apparently belongs to the old school, if you read his ruling on this subject that women were descended to the level of men when they got equal rights, even he said it’s a silly statute, but it’s not for me, it’s for higher court to say whether it’s constitutional.

It’s true, the majority opinion goes back to the women’s places on the home and urges that, but the majority opinion doesn’t — I mean the minority opinion also regards to law as a completely unjustifiable law.

Women are fully participating in all aspects of life today.

I — my attention has just been called to another item here that I forgot to mention.

I had stated that there were 218 to 220 women who had registered.

The trial judge in justifying his ruling on the administration of the law stated that 27% of the available women were on the 10,000 list and the 10,000 was 15% of the men, 60 odd thousand.

How we happened to make the error, we don’t know because it was only 3%, 4% and 5%.

And apparently the Supreme Court of Florida accepted that error and it was discovered when we were preparing the appeal papers.

So that we have a situation whether a very few women — the women were cut out on the jury commissions and then the judge who tried the case in his ruling through a gross error misrepresents the number that were available.

Felix Frankfurter:

Mr. Ehrmann, later — December 1946, this Court didn’t — I think I was justified in saying it in my dissent, the court didn’t rule that as a matter of due process which under the federal law impliedly include equal protection that the exclusion of women constitutes an inroad upon the Fourteenth Amendment or the Fourth Amend — the Fifth Amendment.

Now, that was 1946, we now have 1961.

Would you say to the fair statement of the problem in this case to say that what we really — what I really have to decide for myself is to what extent — the law still reflects history, is that a fair statement of the real problem?

To what extent —

Herbert B. Ehrmann:

Well —

Felix Frankfurter:

— would catch-up with this movement of which you spoke, the —

Herbert B. Ehrmann:

Yes.

Felix Frankfurter:

— what extent —

Herbert B. Ehrmann:

Well —

Felix Frankfurter:

— of the decision —

Herbert B. Ehrmann:

I don’t know but —

Felix Frankfurter:

— exhilarate on constitutional grounds.

Herbert B. Ehrmann:

Well, the Fifth Amendment as I understand it has not been incorporated in the rule that it applies to states.

But I would — I want to answer Your Honor’s question.

Where we have a question of justification, I want to answer to the best of my ability, where we have a question of justifying a state statue, it seems to me that we should not justify a 20th Century anachronism by justifications that might have been valid 100 years ago.

And I think Your Honors, you’re one of the first to recognize that with in some of the decisions that we are not using ancient justifications to justify injustices of today.

Felix Frankfurter:

Is that a — I can think of other justifac — other consideration, namely, if women are as politically aggressive as they are, that they really want not to have a system like this operate whereby they have to come forward and say, I want to serve or that a legislature may take that into account.

That they expressed really the feelings of the women at large as a group instead of being discriminating against and this statute may be deemed a reflection of their desires.

Felix Frankfurter:

If they really wanted to be called like men, there’d be no trouble about getting that legislation through even in Florida, would it?

Herbert B. Ehrmann:

Why?

I suppose.

Well that, I couldn’t say because I don’t know —

Felix Frankfurter:

No.

But (Voice Overlap) —

Herbert B. Ehrmann:

— where the control lies in the power of the legislature.

They — but I would say this that I am not here urging the right of women to serve on juries.

I am here defending a woman who is sentenced to 30 years at hard labor because she — at least I won’t say because but without the benefit of having women on the jury.

Now if the statute operates so that women don’t come on the jury and if there is no such statute women are on the jury, then I don’t think we need to discuss it.

Charles E. Whittaker:

Mr. Ehrmann, may I ask you please sir.

After the 1956 list of 10,000 had been prepared and 3000 of them had been we will say, used up lessens only 7000.

Had any women registered for jury service before the 3000 names were put back in to bring the list up to nine — to 10,000?

Herbert B. Ehrmann:

Mr. Justice, we do not know.

We — all we know is that between 1952 and 1957, only 35 women registered.

That’s as far as our knowledge goes whether — where any new registrations in that last year or not, I don’t know.

We haven’t any record.

Felix Frankfurter:

There are of course two questions — I beg your pardon.

I’m sorry.

Charles E. Whittaker:

Well that’s — that’s alright.

Herbert B. Ehrmann:

But we only that in five years, only 35 women registered but whether any of them registered the last year just before this year, we don’t.

Charles E. Whittaker:

It was of significance to my way of thinking because suppose the administrators of the jury list said despite the fact women have elected to serve by registering, we’re not going to pay any attention to it.

We’ll put back to 3000 all men and leave the women out.

That might very well be a systematic discrimination against women, but if there weren’t any women who had elected to register, it couldn’t be said, could it, that there was a systematic discrimination?

Herbert B. Ehrmann:

Well, where year after year for four or five years, they limit the number to 10, Your Honor I suggest that that alone would be discrimination.

There were two — there were in addition to the 10 that were in, there were about 208 to 210 other women that could’ve been chosen just as there were these men.

We don’t know — you see, men didn’t have to register.

They were already on the elector’s list.

Charles E. Whittaker:

Yes, but there 60,000 men who are eligible you say and only 10,000 men and women on this list.

Herbert B. Ehrmann:

That’s right.

Charles E. Whittaker:

In the wheel as I would call it.

Herbert B. Ehrmann:

Yes.

Charles E. Whittaker:

So, there might be some disparity, but there wasn’t an exclusion of either sex from the wheel?

Herbert B. Ehrmann:

Well, there certainly wouldn’t have been any exclusion of men, where 10, 000 names were put in, all male.

Now, Mr. Justice Whittaker, don’t you think that if they don’t put in more than 10 names whether they’re the old 10 names, or new 10 names, that that is an arbitrary limitation?

And this Court has decided in several cases that limitation is just as bad as exclusion.

Now —

Charles E. Whittaker:

I don’t know what the mathematics are.

It’d be 218 to 64,000, wouldn’t it?

If 218 women who have registered and 64,000 men were —

Herbert B. Ehrmann:

Yes.

It would be by one third of 1%.

Charles E. Whittaker:

And there were 10 out of — 10 women and 990 men in the wheel.

Herbert B. Ehrmann:

Three tenth of 1%, approximately.

So they reduced the chance from one third of 1% to one tenth of 1%.

It’s a pitiful chance in any event but they reduces that.

Felix Frankfurter:

May I ask you this question before you sit down.

There are two questions as I see it in this case.

One is — well, one is that the statute as such requiring them to come forward and express willingness to serve as a juror, if that as such is bad, offends due process.

Herbert B. Ehrmann:

Yes.

Felix Frankfurter:

The other question and which I wish without arguing, you just summarize what the — what your case is, the other problem is that even that system, even that system which allows them and to come forward has been so administered that in its actual operation it doesn’t give voluntariness an adequate chance to operate.

Herbert B. Ehrmann:

Well Your Honor summarized it so well, I see no reason why I should violate my red and white light and talk any further.

Felix Frankfurter:

You do not violate anything if you answer the question.

Herbert B. Ehrmann:

Well, I agree a 100%.

Felix Frankfurter:

But if the — what is the supporting evidence in the latter, for the latter statement namely, that as it operate — as it was administered, the element of voluntariness wasn’t actually operating.

Herbert B. Ehrmann:

Well, the only way that we can gauge this is by the — is by the way the list itself was administered and they administered it by arbitrarily limiting to 10 each year, the number that were available.

Now —

Felix Frankfurter:

Not even the same 10 or it doesn’t matter, just —

Herbert B. Ehrmann:

It doesn’t matter.

The fact that they put the same, it didn’t — they did the same — and they didn’t even look at the list indicates that they thought it was a joke.

Felix Frankfurter:

So that the area —

Herbert B. Ehrmann:

But other than that, if there’s no legal difference between the two.

Felix Frankfurter:

So that the element of chance by which you pull out one ticket rather than another was necessarily reduced if you only add 10 out of which to pay?

Herbert B. Ehrmann:

Right.

Felix Frankfurter:

That’s your point.

Herbert B. Ehrmann:

That’s it, exactly, yes.

Earl Warren:

Thank you Mr. Ehrmann.

Herbert B. Ehrmann:

Thank you.

Earl Warren:

Mr. Georgieff.

George R. Georgieff:

Mr. Chief Justice, may it please the Court.

Before I address myself any to these propositions, I’d like to thank the indulgence of the ladies in the audience and of course my good wife wherever she happens to be for the things that I’m about to say.

They may not quite square with what woman would think.

First, I’d like to say that a pronouncement made here today that this is the first case that has come to this Court’s attention involving this precise problem is not quite correct.

It is the first case in which we can expect an opinion of one sort or another, but in the case of State versus Drafer which I have cited in my brief that came out of Louisiana, it pays me to admit that all you did was deny cert.

I could’ve used an opinion has it been on my side, but you didn’t do that, you simply denied certiorari.

Their statute is literally a mirror of this one.

It requires that they go to their District Courts and register their wish to be considered as jurors.

I don’t know why you did, therefore I’ll discuss it no further.

Earl Warren:

Was the defendant there a woman?

George R. Georgieff:

Yes indeed.

It’s a red flag case in every particular except that no opinion was written.

Now, I think that the first question to be determined or discussed in any case is whether the statute is constitutional because if it is, then and only then do we have to get to the proposition of whether this jury commission functioned properly or it didn’t.

Now of course if it isn’t, there’s no point discussing that.

It’s sort of like putting the cart before the horse.

I say it’s constitutional because you have said it was in Strauder versus West Virginia and you haven’t yet changed your mind.

You may after today, I don’t know that, but in any case, all of the glowing statistics that we have to support the proposition that women are no longer the backward crew that we have made them since time immemorial, or I take it brought forth to demonstrate one thing, that is to say that they are eminently qualified to serve as jurors.

I do not say they’re not.

They probably were many years ago, but I do say that when this Court considered the proposition in making its dictum statement in Strauder versus West Virginia, I do not believe that it made that pronouncement because women do not comprise 38% of the working force, nor that they have made inroads on politics, business, economic, and social levels.

I think they did it because of classic differences that no attainment can change.

They are women because they are women.

George R. Georgieff:

They have functions to perform that no ascension of the scale can make any difference here.

They bear our children.

They’re the ones (Inaudible), not the men.

We may find isolated cases of this but in the main, this is their function until that is changed we can’t even address the proposition.

What move this Court to say what it did in Strauder versus West Virginia was not the reverse of it — of the statistical approach, but rather that there were things that women were confined to in that their very nature required them to perform to the exclusion of men.

They have to take care of these things not the men and it was likely the opinion of this Court that to require them to serve in this capacity would make it difficult for somebody to raise these children, to prepare the food, to keep the home, and to do other things that woman customarily do and to this day do.

Now —

Earl Warren:

I wonder if — I wonder if that wouldn’t be capable of other — another kind of solution there, not everyone has small children that she has to raise.

There are great many of them that have none, a great many of them that are married, there are great many of them whose children have become matured and I wonder if they couldn’t — who are better have a statute that would exempt them if they had home duties of that kind just as we exempt a lawyer or a doctor or a minister of the gospel and so forth.

But I don’t think we can start can we with any premise that all woman should be disqualified because a great many of them are the mothers of our children.

George R. Georgieff:

I did not mean Mr. Chief Justice to start with that premise, carry it through or bring it up in the future.

I will address myself to the position you’ve taken in just a few moments.

Earl Warren:

Oh, go ahead.

George R. Georgieff:

First, our statute does not exclude any women.

In 1946 when this was considered, we had a statute 40.01 which is precisely the one we have here which made no reference to women.

They could not serve on a jury on Florida until 40.01 was amended to read as it presently does and as it’s cited in the brief.

Now, that does not exclude women in any degree whatever.

They are required to be qualified electors just as men are.

The only further requirement is that they go to somebody and say, “Look, I’m not possessed of any of these infirmities that you’ve recognized over the years, therefore, consider me when you pick up this jury list and include me in it.

I have time and the inclination to do this.”

If we had said or if we were here on the proposition that women cannot serve on a jury, it might well be a different story.

I suppose I’d be a little more hard put to answer the position that you’ve taken Mr. Chief Justice, but now, this simply says, “You are the ones that must go to the judge if we don’t have this”, and say, “Well look Your Honor, I have seven children at home and who is going to take care of them.”

And he says, “Alright ma’am, you don’t have to serve on this jury, go on home and take care of your family.”

So what is the difference if she now decides that because she does have the same seven children, she won’t go to the clerk unless and until such time she has the time, inclination, and the ability to do so.

They have throughout their brief taken the position that why do we have something like this when the judge enjoys a broad discretion and he can release somebody of the requirement of jury duty, especially if they have these pressing problems.

I concede that he does and if he does, what difference does it make that she exercises it affirmatively by going to court in response to the summons, or does it beforehand according to the statute.

If she is the one who is able to determine whether she can and will, then surely she should be able to do it now and this was substantially the same thing that you had in Fay, Fay versus New York case.

Now, there the court concluded that it did not violate due process to have a jury that was enlivened by a woman.

Now it’s true that a woman wasn’t the defendant in that case, but even in the dissent it the Fay case, nobody made any mention of the fact that women had been effectively excluded, such as they say here today.

The point is, I made the distinction which I think is a valid one, and of course the court may not agree, but I said the difference is in availability and eligibility.

George R. Georgieff:

The law does not say that women aren’t eligible to serve as jurors in Florida, It simply says, “If you want to become available go to the clerk.”

Now they are the ones who guard the availability.

If they don’t go, they’re not available.

If they do, let’s presume that the 46,000 in Hillsborough County had all of the sudden decided that they wanted to serve or be considered for service as jurors, and they all went into the clerk, their argument must be just as sound if every one of them were down there.

Hugo L. Black:

May I ask you —

George R. Georgieff:

Yes sir.

Hugo L. Black:

What would think about a law that said, “No men should serve on the jury unless they come up and say they want to do so.”

Would that (Voice Overlap) —

George R. Georgieff:

I should imagine that —

Hugo L. Black:

Would that raise any different question?

George R. Georgieff:

Not to me sir, no it wouldn’t.

As to the difference between the two it would.

Hugo L. Black:

As to what?

George R. Georgieff:

Well, in other words, if I take the position that it makes the difference if we say that to men, then obviously my position now is got to be fallacious.

All I’m saying is that the reason we have this difference with women is because they are the ones that do have all these infirmities that no amount of ascension on the social scale can erase.

Now that’s one that I can’t change no matter what I do, so it’s unlikely that this would be the case.

This is unfortunately a man’s world and for some time, I must — I’m afraid it’s going to remain one and I don’t know that I can in good conscience —

Hugo L. Black:

At least in theory.

George R. Georgieff:

Well, perhaps so.

I stand corrected to that extent, but — alright, let’s just say that it is, whether we honestly believe it or not, but until such time as on the surface it becomes something other than that, I can’t in good conscience say, “Well I could see that this would be the same situation if we said that men had to register.”

In other words, it’s like envisioning $700 billion.

It doesn’t mean anything to me.

I don’t know how they could do this with the structure of mankind being what it is.

And —

Earl Warren:

When you speak of infirmities, fundamental infirmities for this service, do you mean anything except that women are homemakers?

George R. Georgieff:

No, an ill choice of word Mr. Chief Justice.

All I mean is the traditional reasons that women have to stay home.

In other words to prepare meals —

Earl Warren:

Yes.

George R. Georgieff:

— to raise children —

Earl Warren:

Yes.

George R. Georgieff:

— keep the house, etcetera.

Earl Warren:

Yes, yes.

George R. Georgieff:

Nothing more.

Felix Frankfurter:

Will you — make a difference, how many women — what the experience in other jurisdictions has it been as to excuses given by women to serve on juries where they’re required to serve?

George R. Georgieff:

I’m afraid —

Felix Frankfurter:

Suppose —

George R. Georgieff:

I don’t quite understand.

Felix Frankfurter:

Suppose — I don’t know what the — that’s why I asked a question to Mr. Ehrmann, suppose the experience has been because I’m quite sure it has been, that many more women ask to be excused from jury duty than men do, that would a relevant factor in shaping the kind of legislation that a state shape — that a state shapes (Voice Overlap) —

George R. Georgieff:

I quite agree.

Felix Frankfurter:

— jury duty by women.

Hugo L. Black:

I think probably that was considered as a relevant factor in the Thiel case?

George R. Georgieff:

Yes, as a matter of fact it was, that was the case where the wage workers, the hourly wage workers were discriminated against, Thiel versus Southern Pacific I think.

That too probably would be a factor here, but as I say, I think that this statute considering what we had in 1946, as a decidedly salutary effect for the women of the State of Florida.

Now admittedly when people are required to go down and do something, experience, I suppose general experience that we can all take knowledge of, judicial knowledge of is the fact that they’re reluctant to do so for whatever reason, but my point is very simply, if all 46,000 of them had gone down and registered, essentially the position of the appellant has got to be the same.

Because if the condemnation is directed to this requirement of registration, it doesn’t matter whether one did or all of them did.

If you’re going to condemn it because of that requirement, then I don’t care whether anyone — any of them did.

It’s the requirement that you’re after and my point is very simply that it isn’t a requirement.

It’s simply allows them to determine beforehand whether they will or won’t.

Charles E. Whittaker:

Well, the question you’re talking about now, if I may say so, appears to me as answered by the proposition of whether there is an exclusion, isn’t it?

And here if the women may elect to serve if they wish, all or so many as do, none were excluded, do you think so?

George R. Georgieff:

Mr. Justice Whittaker, I think I first said at least in the first few pronouncements that I’ve made that there was no exclusion of any kind.

And then I further said that I made the distinction between eligibility of women for jury service and availability and I think that constitutes a two-fold answer.

There is no exclusion whatsoever.

Now it may be that no woman is ever picked by chance out of the jury box.

I don’t know that that will ever happen but it may not and then again you’ve got to condemn.

I simply say that this doesn’t exclude any of them if they want to serve.

Now, these cases that they have cited for the proposition of this has got to be condemned because of a systematic exclusion there was that precise thing either by statute or by operation.

Charles E. Whittaker:

Would you agree (Inaudible)

George R. Georgieff:

Well, I wonder how much mathematics would be involved before I answer that.

George R. Georgieff:

In other words, if only one had, I don’t know what I would say, probably no.

Charles E. Whittaker:

Suppose the population of the (Inaudible)

George R. Georgieff:

Yes sir.

Charles E. Whittaker:

(Inaudible)

George R. Georgieff:

Well, again I’ve got to go back to the cases that they have cited in support of their condemnation.

Now, what do you decide is a systematic, intentional planned exclusion.

Charles E. Whittaker:

(Inaudible)

George R. Georgieff:

Well, is that one — just a one time, isn’t that enough to condemn it, I say, “No.”

Charles E. Whittaker:

(Inaudible)

George R. Georgieff:

It’s just my opinion.

Earl Warren:

Suppose you think for a series of — through a series of years that they have 10 every year and no more.

George R. Georgieff:

Considering if they had up until 1952 and I maybe a little incorrect in my mathematics, in Hillsborough County they had — let’s say 228 less 35 that registered between 1952 and 1957 which is our critical year, considering that that was so, I should say that if they did that, did not add anymore than the ten, that if it was a requirement that they add, we’d soon run out of women’s names if we have no further registrants, because it all turns on whether they come down to register.

Now, this business of adding to them each time you have a depleted box, I understand the consternation, but if you have to add in order to serve, in order to serve this idea of not being systematic in your exclusion, then if you don’t have enough of them who have registered, what happens when you run out of them?

Earl Warren:

Well doesn’t the fact that you always have 10 show some kind of a system whether it’s systematic exclusion or whatever it is, if you always have 10 in the box over a period of years, isn’t that some kind of a system?

George R. Georgieff:

It sounds — some type of a continuous number.

The record doesn’t support simply 10, they said 10 or 12.

Now of those that were available to them they couldn’t simply pick out a woman elector’s name for then they would have been violating the law, because it requires that they take only of those who had registered.

Now of those that were available to them to select from either this was or was not a representative group.

I think it’s just as simple as that.

Our Supreme Court in writing the affirming opinion did not conclude that Judge Grayson’s figures were correct nor did they adopt them.

Mr. Justice Drew in writing the majority opinion simply cons — simply said that this is a representative portion of the available women jurors.

Now, obviously if the court disagrees with that pronouncement, then there is nothing I can do, but either it is or it is not representative.

Now somewhere along the line, it got to be arbitrary.

The jury commission has to pick either this name or that name.

Now, of this 228 or whatever it was that were available, they decided somewhere along the line somehow because they’re vested with a certain amount of discretion that of this amount, 10 should be a representative number and they did that.

Felix Frankfurter:

Why they didn’t throw in all the 200 odd?

George R. Georgieff:

Well, that’s a good question Judge.

I wish I could tell you.

I feel a good deal better if they had but unfortunate that’s not so.

Felix Frankfurter:

(Voice Overlap) — the legal — is it irrelevant?

George R. Georgieff:

Well, as I said before —

Felix Frankfurter:

(Voice Overlap) – we’re not here to answer — ask good questions, we’re here to ask relevant questions.

George R. Georgieff:

Truth of the matter is —

Felix Frankfurter:

(Voice Overlap) —

George R. Georgieff:

— it wouldn’t have mattered a bit.

Earl Warren:

I thought you explained a moment ago that the reason they didn’t do it was because if they put more of them in, they’d soon run out of names entirely.

George R. Georgieff:

Well, I am still addressing myself to the proposition that this statute is constitutional.

Earl Warren:

Yes, but Justice Frankfurter asked you why didn’t — if — when you have so few women, why didn’t you put in all the women and I thought a little while ago you said, if we kept putting in more and more, the first thing you know, we would — there wouldn’t be any women on the list.

George R. Georgieff:

Well, if we say, why did we not put in all the 228 or whatever it was, let’s say 250 names, why didn’t we go on ahead and put in the whole 114,000 qualified electors?

It isn’t necessary.

Felix Frankfurter:

Well, I don’t understand — I’m not questioning you, I just don’t understand what that means.

Suppose, they’d all been put in, would that have — would that have rendered it and they’ve picked only and out of the lot there, (Inaudible) to pick three that become jurors, would that have rendered the other’s functus or functus, I suppose I rather say, functus officio (Inaudible)?

George R. Georgieff:

Again, I must confess I don’t think I understand the justice.

Felix Frankfurter:

What would be the consequence if they put in all the available jurors that were on the list, in (Voice Overlap) —

George R. Georgieff:

All of them?

Earl Warren:

The women.

Felix Frankfurter:

The women.

George R. Georgieff:

The women.

Felix Frankfurter:

All the women.

George R. Georgieff:

Alright.

Felix Frankfurter:

What — suppose that (Inaudible) — and you carry on from there with this consequence, what would happen?

What would’ve happened?

You said you wish they had?

George R. Georgieff:

Well, it would’ve increased the margin or the percentage opportunity that the appellant would’ve had of securing one when they drew the petit jury panel.

Felix Frankfurter:

Well, but that’s rather important, isn’t it from the defendant’s point of view?

George R. Georgieff:

To be sure, but it would have been equally important if we had nothing there to prevent all of 46,000 women electors in Hillsborough County from being available.

Felix Frankfurter:

But they weren’t and they — I’m assuming with you for purposes of my question, I’m assuming that the statute is constitutional.

I’m now asking you as I asked Mr. Ehrmann, what the actual translation into administration of that system was and out of the available lot, they picked 10 in a total of how many, how many are they?

George R. Georgieff:

Well, there’s a difference judge and —

Felix Frankfurter:

(Inaudible)

George R. Georgieff:

Its somewhere around 228, I think.

Felix Frankfurter:

No, no, no, in the total jury potential?

George R. Georgieff:

Oh.

(Inaudible)

Ten out of 10,000.

Felix Frankfurter:

Ten out of 10,000.

George R. Georgieff:

Just ten less than 10,000.

Felix Frankfurter:

Alright.

Now just (Voice Overlap) —

George R. Georgieff:

(Inaudible)

Felix Frankfurter:

In the law of probability, if there had been 225 women’s names, the chances of drawing a woman’s name would have been greater than if there had been only ten women’s name.

George R. Georgieff:

To be sure, no question about it.

Felix Frankfurter:

To be sure.

Now what I am asking you is why didn’t they put in all of those names and you said they wish they had.

George R. Georgieff:

No, I wished they had.

Felix Frankfurter:

You wished, yes that’s what I — you wished they had.

Presumably that would have made a different case, what would have been the difference?

George R. Georgieff:

Well, at least then, I would be able to come before you and say, “Well now look, they followed the statute as it is and they took everyone of them that they had available.”

Felix Frankfurter:

Is it — I’m asking you now, why as a matter of administration, wasn’t it an arbitrary administration of the statute to restrict the available drawing power of women to ten out of a total of 10,000.

George R. Georgieff:

But the record doesn’t bear it out to be arbitrary.

Felix Frankfurter:

Well it — suppose you said 10 or 12, suppose I give you 15, there’s no suggestion that there were more than — somewhere around that.

George R. Georgieff:

Certainly not.

Let’s limit it to 12.

I think the record will bear that out.

Felix Frankfurter:

Alright.

Let’s say 19, I said two digits, 19.

Suppose there were 19 in that, I want to know why with so limited a supply of women and presumably the legislation, lest we suppose that women are a desirable ingredient concept in the jury — in the jury system.

George R. Georgieff:

I would say, yes of course.

Felix Frankfurter:

Yes, alright.

So that that was as a policy behind the statute of having women respecting however the special functions of historic reasons or all the other considerations that you canvassed, assuming all of that, it limits the number of available jurors.

Felix Frankfurter:

I want to know why the system was so administered that it allowed the including of woman in a jury actually drawn with so small result on the basis of probability.

George R. Georgieff:

Well I take it Your Honor, the only — the only response I can make that’s borne out by the record is, if the 10, 12 or 19 that we settle for is representative of those that they had available to them when they first filled the box, that it was representative, if they hadn’t used any others when they refilled it.

Now, if it wasn’t representative, at the time they originally compiled the 10,000, of those 218, that requires a decision to be made by the jury commissioners that in this vast scheme of the jury system we have to have women because it has a salutary effect.

They are not required to do that.

They are simply required to select people from the list of available qualified electors who in their arbitrary choice are people who are going to be considered as jurors.

Felix Frankfurter:

But I can think it makes a difference whether you have 10,000 out of which to draw where only a relatively — or only 200 out of which to draw.

Suppose he had only — suppose only 50 women had come up and said, “We like to serve on juries.”

And the jury commissioner had drawn only — had to put only the name of five women in this wheel, would that be alright?

Could it be — this is allowed in arbitrary choice?

George R. Georgieff:

It would have to be just as alright as this position in order for me to be sound on all flags.

I couldn’t take it —

Felix Frankfurter:

Well, if there’s only two.

I don’t mean to argue (Voice Overlap) —

George R. Georgieff:

No, I understand.

Felix Frankfurter:

One goes to a certain distance, one has to go beyond that, I don’t believe in that argument, that mode of argument.

George R. Georgieff:

No, I think —

Felix Frankfurter:

I just want to know whether a system which inherently by experience has shown to lead only a few women to come forward to be ready to serve as jurors, and if the policy of the state is to have women on jury, that is the policy of the state, restricted though it is, isn’t it, whether an administration which arbitrarily limits to so smaller chance of a woman being on a jury having some infirmity of its own, notwithstanding (Inaudible)

George R. Georgieff:

Well, perhaps so.

Perhaps so but I think that if that infirmity, if you back it up by saying, “It’s been demonstrated over the years that only a handful of them do come in and register” and of course that’s so in Hillsborough County by the actual count that the record bears out, then let’s address ourselves in the fact that the legislature should change that.

If it’s brought to their attention, let them alter it.

Felix Frankfurter:

You mean, only a handful come in to do what, to serve?

George R. Georgieff:

To register with the clerk their wish to serve.

After all 228 out of 46,000 is not too many.

John M. Harlan II:

Isn’t the real issue on this second branch of the case purposeful discrimination?

George R. Georgieff:

Yes indeed.

John M. Harlan II:

Whether or not you can draw the same inference or systematic purpose for discriminatory exclusion of women.

In the context that this situation that we have drawn in the context of racial segregation?

George R. Georgieff:

Yes indeed.

John M. Harlan II:

Isn’t that the issue?

George R. Georgieff:

I couldn’t say it better.

Charles E. Whittaker:

But there may be admitted some inequality, some discrimination (Inaudible) and not intentionally done, that’s alright, don’t you think?

George R. Georgieff:

Yes indeed, precisely.

You can look at the record and if you listen to Mr. Ehrmann, he said to you, that they took this lightly, didn’t pay any attention, they had simply said, “Oh well, 10 or 12 before, we’ll put in 10 now,” that’s not systematic plan of exclusion like you’ve condemn.

John M. Harlan II:

I suppose a woman under statute who had volunteered and registered, one of the ten in the box who — since that act of registration and decided their family duties were important.

If you made a mistake you’d come down and claim her exception under your statute when she was called for a venire, didn’t you?

George R. Georgieff:

I am satisfied she could.

I don’t have any doubt of it, I don’t believe.

Assuming that the discretion of judges is much the same over the country, I’m sure that he wouldn’t (Voice Overlap) —

John M. Harlan II:

Oh, it wouldn’t be a matter of discretion would it?

It would be matter of right.

George R. Georgieff:

Well, if —

John M. Harlan II:

(Inaudible) I just want to withdraw my —

George R. Georgieff:

Oh, with the clerk —

John M. Harlan II:

— registration.

George R. Georgieff:

— of the Circuit Courts, she could pick it up I’m sure anytime she wanted.

John M. Harlan II:

Anytime?

George R. Georgieff:

Anytime at all.

Now —

Felix Frankfurter:

Let me ask you Mr. Attorney, in the actual — in the actual life as far as criminal prosecutions, what experience can you give to the Court as the presence of the women on juries in the past?

George R. Georgieff:

Well, I can tell you firsthand about the county in which the state capital is located, which is Leon County and has a high incidence of criminal practice, a petit jury panel in the last four years has seldom, if ever been drawn, that did not include a woman.

Now I couldn’t pretend to speak for the 66 remaining counties, I don’t have any idea and there is no way that we keep track of it and possibly the clerks in the Circuit Court might have (Inaudible) — might give us some information but I don’t really know in Miami —

Earl Warren:

How many are in the panel?

How many are on the panel?

George R. Georgieff:

Well of course, Mr. Chief Justice that would of course vary with the right of counsel to reject.

I’d —

Earl Warren:

Yes, well you — I understood you to say that at least there is always at least one woman on a panel and —

George R. Georgieff:

Yes.

Earl Warren:

— and by panel, how large a group do you mean?

George R. Georgieff:

Well in the capital cases, they invariably have one.

In the less than capital, which is a six-man jury —

Earl Warren:

Well by panel, do you mean the jury itself on the trial of the case?

George R. Georgieff:

The petit jury panel.

Earl Warren:

You — yes.

George R. Georgieff:

Yes.

Earl Warren:

Well, by panel —

George R. Georgieff:

Isn’t that your question?

Earl Warren:

— that’s what you meant those from which the trial jury was selected?

George R. Georgieff:

Oh, the number that are registered?

Is that —

Felix Frankfurter:

I wanted to know what the Chief Justice has asked you?

How many served on the trial jury?

It’s what I want to know, in the county of yours, in capital cases?

George R. Georgieff:

Well, by actual count, that’d be difficult since the number of them do it by repetition.

If you —

Felix Frankfurter:

But you said the normal (Inaudible) murder — certain in capital cases or —

George R. Georgieff:

Yes sir.

In the past four to five years which is the only time about which I can speak of (Voice Overlap) —

Felix Frankfurter:

Did you say you have a jury of six in — what you said —

George R. Georgieff:

In anything less than capital, it’s only a six-man jury.

It’s 12 only in capital cases and eminent domain proceedings.

Hugo L. Black:

Do you refer the panel as complete venire in the selection in a capital case from which the jury of 12 can be selected?

George R. Georgieff:

No, I had specific reference Mr. Justice Black to the ultimate panel which hears the cause.

Felix Frankfurter:

There’s 12.

Hugo L. Black:

Ultimate, 12 men.

George R. Georgieff:

Yes.

(Inaudible)

George R. Georgieff:

That’s what — I thought that’s what the justices’ question was.

If that wasn’t —

Hugo L. Black:

How many do you summon in a capital case?

George R. Georgieff:

Oh, I think they start out in groups of 75 and they exhaust that if they have to then go to the next 75 and —

Hugo L. Black:

Do you know anything about that?

George R. Georgieff:

No, sir.

I — I never come to that stage of it.

I couldn’t tell you.

Essentially, since my time is about to expire, my position is very simply, that if anybody limits the number of women that are available as potential jurors in the State of Florida, it’s the women themselves.

Now, if that is bad, because they don’t demonstrate an interest or a wish to serve in this capacity, then let them modify it by legislative addition or some other way.

At this date, at this precise date in an eminent domain proceeding in the State of Florida, no woman is permitted to serve on the jury.

We’re not here on that, but I bring it up for whatever its worth.

If they don’t demonstrate an interest in this, let the legislature take this away and require them to.

Now, if they are everything that we have been told they were, and if they are constantly on an ascending scale, then it flies under the teeth of this low qual — quantity of women who come to the Circuit Court clerk, and say, “Look, I want to serve”.

John M. Harlan II:

Oh, don’t blame the poor women, at least.

I think most men, if they were given — I regret to say, most men, if they were given the same voluntary registration from the (Inaudible)

George R. Georgieff:

To be sure.

I don’t think there’s any question about it and I — I myself as I have said it before, I think it’s salutary.

The other proposition is very simply that this — this woman did not have a right to a woman on this jury.

She simply had the right to an impartial jury, no friends, just an impartial jury.

She hasn’t said she didn’t have one.

She just said she’d rather have the other one.

I think the conviction should be affirmed and the statute is unconstitutional — rather is constitutional both on its face, and certainly as it was administered from what they had available.

Thank you.

Herbert B. Ehrmann:

Mr. Chief Justice, I do not know whether you wish to have this information, but it’s an answer to the question that you asked.

Mr. Hardee who tried this case in Hillsborough County has just given me a note in which he says that in 1956, not one — one woman has gone on any panel in all the courts of the county.

Earl Warren:

What county is that?

Herbert B. Ehrmann:

Hillsborough County.

Earl Warren:

Which — well, what’s the principal city in that county?

Herbert B. Ehrmann:

Tampa, isn’t?

Earl Warren:

How large a county is it?

Herbert B. Ehrmann:

Well, about 400,000 — I’m about to say Your Honor, about 300,000.

Mr. Hardy tried the case (Inaudible)

Earl Warren:

About 400,000 people in that county.

Earl Warren:

Yes.

Hugo L. Black:

Is that the county where this case was tried?

Herbert B. Ehrmann:

Pardon.

Hugo L. Black:

Is that the county where this case (Voice Overlap) —

Herbert B. Ehrmann:

That’s the county where the case was tried.