498 F.2d 168
Judy LEGGROAN, Petitioner-Appellee,v.Samuel W. SMITH, Warden, Utah State Prison, Respondent-Appellant.
No. 73-1854.
United States Court of Appeals, Tenth Circuit.
June 11, 1974.
M. Reid Russell, Asst. Atty. Gen. (Vernon B. Romney, Atty. Gen., on the brief), Salt Lake City, Utah, for respondent-appellant.D. Jay Gamble, Salt Lake City, Utah, for petitioner-appellee.Before PHILLIPS, HILL and SETH, Circuit Judges.HILL, Circuit Judge.1The State of Utah appeals from an order of the United States District Court for the District of Utah granting Judy Leggroan's petition for a writ of habeascorpus.2Appellee was convicted in the District Court of Salt Lake County, Utah, in1969, of second degree murder and was sentenced to a term of ten years to lifeimprisonment. Prior to selecting the jury she challenged the entire panel on thegrounds it was selected from tax assessment rolls, thereby excludingnonproperty owners and prejudicially reducing the number of women, young people, poor people and members of minority races. This challenge, as was asubsequent challenge raised at the end of the trial, was denied.3The conviction was affirmed on appeal, the Utah Supreme Court finding thatthe jury selection process did not evidence any scheme or practice of systematicexclusion violative of petitioner's constitutional rights. State v. Leggroan, 25Utah 2d 32, 475 P.2d 57 (1970).
, habeas corpus. The petition was denied because she had not exhausted allavailable state remedies. She then petitioned the District Court of Salt LakeCounty, Utah, for a writ of habeas corpus and, when this was denied, appealedthe decision to the Utah Supreme Court. Finding that the identical issue alreadyhad been raised and decided on direct appeal, that court affirmed the decision.Leggroan v. Turner, 27 Utah 2d 403, 497 P.2d 17 (1972).5Having exhausted her state remedies, appellee once again petitioned the UnitedStates District Court for a writ of habeas corpus. She alleged that the exclusionof nonproperty owners from jury selection violated the Sixth Amendment to theUnited States Constitution, and the due process and equal protection clauses of the Fourteenth Amendment. Following a hearing, her petition was granted.6Appellee first contends Utah's jury selection statute, U.C.A. 78-46-17 (1953),itself established a prima facie case of purposeful and systematic discrimination because it excludes from jury service all persons who do not own real property.The statute, which has since been amended, provided that prospective jurorswere to be chosen from the names of legal voters appearing on the countyassessment rolls.
1
7An examination of supporting statutes, however, reveals that the assessmentrolls are not limited to real property. Section 59-8-1 provides for the recordingof all property on the assessment roll,
2
and 59-3-1 further defines 'property' toinclude personal property, the result being that prospective jurors were to bechosen from names appearing on both the real property and personal propertylists. State v. Johnson, 25 Utah 2d 46, 475 P.2d 543 (1970); State v. Beasley, 22Utah 2d 423, 454 P.2d 880 (1969). Such a selection method does not amount toa per se unconstitutional exclusion. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397,97 L.Ed. 469 (1953); Clark v. Ellenbogen, 319 F.Supp. 623 (W.D.Pa.1970),aff'd mem., 402 U.S. 935, 91 S.Ct. 1615, 29 L.Ed.2d 104 (1971).8In cases where the United States Supreme Court has questioned jury selection procedures based on such assessment rolls, it has been because of the manner inwhich they were used, and not because of the assessment rolls themselves.
3
Therefore we find the statute itself constitutionally valid.9Appellee nevertheless attacks the jury selection system used by the shifts to thestate to rebut the facts as unconstitutional. Such a claim necessarily requires ashowing that a recognizable, indentifiable class of persons, otherwise entitled to be jury members, has been purposefully and systematically excluded from juryservice. Brown v. Allen, supra. The burden of proof rests upon appellee. Once a
prima facie case is established, however, that burden shifts to the state to rebutthe facts presented and to offer a rational basis for the excluded classification.Whitus v. Georgia,385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967).10The record discloses that prior to 1960, Salt Lake County's jury selection procedure complied with U.C.A. 78-46-17. Names of prospective jurors wereobtained through use of voters' registration lists and automobile ownership(personal property) rolls. Beginning in 1960, however, real property assessmentrolls were used in place of the automobile ownership rolls. Jury commissionerstestified that persons were not considered for jury service unless they wereregistered voters whose names appeared on the real property assessment rolls.This procedure was utilized until late in 1969. Thereafter, names of prospective jurors were chosen only from voters' registration lists.11Appellant contends this is not a sufficient showing because appellee has notestablished a purposeful discrimination against, or a systematic exclusion of, anidentifiable group of persons. Such an argument is without merit. Appellee hasshown that for approximately nine years all non-freeholders, an identifiablesegment of the community, have been excluded from consideration for juryservice. Because the Fourteenth Amendment's equal protection clause reachesall exclusions which single out any class of persons for different treatment not based on a reasonable classification, Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159,7 L.Ed.2d 118 (1961); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98L.Ed. 866 (1954), the exclusion of an entire class from jury service establishesa prima facie case of systematic and purposeful exclusion which, if unsuccessfully rebutted, must prevail. See Annot.; Jury Selection-- GroupDiscrimination, 33 L.Ed.2d 783 (1973).12The question, then, is whether the ownership of real property is a relevantqualification justifying such an exclusion. In this regard, we are not unaware of Gibson v. Mississippi, 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075 (1896),wherein the Supreme Court, in dicta, held that states may confine the selectionof jurors to freeholders. Subsequent decisions, however, have impliedlyrejected this qualification. In Carter v. Greene County, 396 U.S. 320, 90 S.Ct.518, 24 L.Ed.2d 549 (1970), it is stated: 'The States remain free to confine theselection to citizens, to persons meeting specified qualifications of age andeducational attainment, and to those possessing good intelligence, sound judgment, and fair character.' The freeholder qualification, however, isconspicuously absent.
4
13Moreover, a close analogy exists in Supreme Court cases outlawing limiting public officers to owners of real property.
5
There, as here, we are unable to
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