The opinion of the court was delivered by: GURFEIN
This is an action under 42 U.S.C. § 1983 and 28 U.S.C. § 2201 for a declaratory judgment that New York Judiciary Law § 599(7), McKinney's Consol Laws, c. 30 which provides that a woman, although qualified, is entitled to exemption from service as a juror upon claiming exemption is unconstitutional. The constitutional claim is that the statute violates the Equal Protection Clause of the Fourteenth Amendment. Jurisdiction is based on 28 U.S.C. § 1343(3).
It is alleged that the individual plaintiffs represent, respectively, three classes. Plaintiff Ann Pilkington is a plaintiff in a jury case currently pending in the Civil Court, New York County, in which she is suing for damages for personal injuries resulting from a kitchen accident.
Plaintiff Anita Murray is a female who seeks to represent all females who are allowed to, but do not have to, serve on juries.
Plaintiff Caplovitz is a male whose wife is a lawyer and who, therefore, has substantial responsibility for the care of their small children. He seeks to represent a class of males called to jury duty in New York County who would be called less frequently if women had an equal obligation to serve on juries.
The plaintiff organization, which sues individually, is devoted to ending sex discrimination. Though they are eligible to serve as jurors in New York if they wish to, its members object to being "stereotyped" as "housewives" and "rearers of children."
The defendant, Goodman, is the New York County Clerk who is charged with selecting, drawing, summoning and empanelling jurors for all courts in New York County.
It is alleged that 46% of the available New York County jury pool is male, but that 81% of empaneled jurors are male.
This is an old story in the setting of new times. The New York system of jury selection has been upheld against this very claim by the Supreme Court. Fay v. New York, 332 U.S. 261, 277-278, 67 S. Ct. 1613, 91 L. Ed. 2043 (1947). Justice Jackson, a careful writer, noted in 1947, scarcely more than a quarter of a century ago, that "[the] contention that women should be on the jury is not based on the Constitution, it is based on a changing view of the rights and responsibilities of women in all public life, which has progressed in all phases of life, including jury duty, but has achieved constitutional compulsion on the states only in the grant of the franchise by the Nineteenth Amendment." 332 U.S. at 290, 67 S. Ct. at 1628. A year earlier a divided court decided in Ballard v. United States, 329 U.S. 187, 67 S. Ct. 261, 91 L. Ed. 181 (1946), that in a state where women are eligible for jury service under local law, a federal jury panel from which women were intentionally and systematically excluded was not properly constituted, but that was deemed merely "a departure from the statutory scheme." 329 U.S. at 195, 67 S. Ct. at 265.
The Supreme Court then, spanning more than half the time between Fay and the present, held in 1961 that a Florida statute which provided that a woman would not be taken for jury duty unless she applied for it was constitutional. Hoyt v. Florida, 368 U.S. 57, 82 S. Ct. 159, 7 L. Ed. 2d 118 (1961). The Court was unanimous. Justice Harlan, for the Court, appears to have accepted Florida's statute as being the same as New York's statute. Each gives to women the privilege to serve but does not impose service as a duty. Fay v. New York, supra, 332 U.S. at 277, [67 S. Ct. 1613]." 368 U.S. at 60, 82 S. Ct. at 162. "We cannot say", wrote Justice Harlan, "that it is constitutionally impermissible for a State, acting in pursuit of the general welfare, to conclude that a woman should be relieved from the civic duty of jury service unless she herself determines that such service is consistent with her own special responsibilities." 368 U.S. at 62, 82 S. Ct. at 162.
Less than six years ago, in 1968, the Court of Appeals for this circuit, accepted Fay and Hoyt, supra, as governing law, and considered the New York statute valid. United States v. Caci, 401 F.2d 664, 671 (2 Cir. 1968), cert. denied, 394 U.S. 917, 931, 89 S. Ct. 1180, 22 L. Ed. 2d 450 (1969). Only four years ago this Court (Mansfield, J.) again held the statute under attack to be constitutional. Leighton v. Goodman, 311 F. Supp. 1181 (S.D.N.Y. 1970).
We are now told by the plaintiffs that in the last three years the Constitution has come to prohibit more than it ever did before. It is true, to be sure, that the Constitution is an expanding instrument in the field of civil rights.
I must address myself, therefore, to what part of the nation's judicial history is said to have been reversed since 1971.
In 1971 Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225 was decided. There Chief Justice Burger, for a unanimous court, held that preferential treatment for men over women in appointment as administrators of decedent estates "establishes a classification subject to scrutiny under the Equal Protection Clause." 404 U.S. at 75, 92 S. Ct. at 253. The Court held that persons who were within various classes of relationship to ...