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September 23, 1970

Alvin CLARK, Plaintiff,
Henry ELLENBOGEN, Michael R. Stabile and Ralph E. Ord, Jury Commissioners of Allegheny County, Pennsylvania, Defendants

The opinion of the court was delivered by: DUMBAULD

Before reaching the merits of the case at bar, we must consider defendants' motion that this Court should "abstain" from decision of the instant case until the courts of Pennsylvania dispose of the pending criminal proceedings against plaintiff.

We are understandably reluctant to rest our decision upon the shifting sands of the doctrine of "abstention" if other alternatives are available. To wander in the domain of abstention is to find oneself in a "darksome wood" or "obscure forest." *fn1" No aspect of the administration of justice in federal courts is beset with more uncertainty and troublesome dubitation.

 At one extreme, abstention might be criticized as denial of justice, an evil condemned by Magna Charta. *fn2" At the other extreme, non-abstention might result in premature and unnecessary involvement in delicate constitutional questions. As acknowledged by the learned draftsman of the American Law Institute's proposed revision of the abstention rules, "There is, then, no wholly satisfactory answer." *fn3"

 It would be unprofitable to pause and endeavor to reconcile the spectrum of conflicting Supreme Court decisions *fn4" dealing with this topic. We need not try to "find meaning in the meaningless" or "paths in the eternal darkness." *fn5" It suffices to say that, however the boundaries and limits of the doctrine of abstention may be delineated, the case at bar is not one where abstention might be appropriate.

 Stated simplistically, the substance of the doctrine of abstention is that when there is involved in a case a novel, intricate, difficult, or doubtful question of State law, which has not been but in the near future will be decided authoritatively by the State courts, and the decision of the question of State law will probably be controlling with respect to disposition of the case and will relieve the federal court from deciding a novel, intricate, difficult, or doubtful question of federal constitutional law, then the federal court should abstain. *fn6"

 Plainly, the case at bar does not fall within this category. On the contrary, this case is one where, once the facts are established, it will be a simple matter for this Court to determine whether the procedure of jury selection followed in Allegheny County conforms with the statutory provisions of Pennsylvania law and the established federal constitutional principles set forth in pronouncements of the Supreme Court of the United States.

 Turning then to the merits of the case, the Court are unanimously agreed that technically we might well dismiss the case because of plaintiff's failure to meet his burden of proof. At the hearing, neither side offered any evidentiary material whatever to show what was in fact done in connection with the jury selection process. One member of the Court believes that we need go no further, but should dismiss the case upon this ground.

 The majority of the Court, however, feel that in a matter of such public interest and importance, involving the fundamental right to jury trial and the basic procedures of law enforcement, it would be more satisfactory to know what the actual facts regarding the matter are before disposing of the case.

 At the hearing the Court suggested that the parties should submit proof of some kind regarding the actual practice pursued in jury selection. Affidavits have now been submitted by both parties. *fn7" Accordingly, the majority of the Court believe that there is an adequate factual basis for a determination of the propriety of the practice pursued.

 However, we are bound by decisions of the Supreme Court of the United States, and the doctrine of Turner v. Fouche, 396 U.S. 346, 363, 90 S. Ct. 532, 24 L. Ed. 2d 567 (1970) seems to outlaw limiting public office to property holders. It is true that this case is not entirely on all fours with the case at bar, as it relates to school directors rather than jurors. But the same reasoning would apply, and the conclusion must be reached that if the Pennsylvania statute limits jurors to taxpayers assessed as owners of real property, the statute must be deemed unconstitutional. See also Kramer v. Union School District, 395 U.S. 621, 632, 89 S. Ct. 1886, 23 L. Ed. 2d 583 (1969); Cipriano v. City of Houma, 395 U.S. 701, 706, 89 S. Ct. 1897, 23 L. Ed. 2d 647 (1969); Shapiro v. Thompson, 394 U.S. 618, 627, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969).

 It should be noted that the Fouche case also invalidated the Georgia method of selecting jurors. But it is clear in the case at bar that we are not confronted with a classical case of invidious discrimination or systematic exclusion of any particular class of persons from service as jurors. Cf. Ballard v. United States, 329 U.S. 187, 195, 67 S. Ct. 261, 91 L. Ed. 181 (1946). The Ballard case was one involving exclusion of women as jurors. It should be noted that there were men as well as women defendants involved in that case, all of whom benefited by the ruling which invalidated the method of selecting the jury.

 If therefore the Pennsylvania statute limits jurors to owners of real estate, any defendant convicted by such a jury would be entitled to raise the question. It is immaterial and irrelevant that plaintiff in this case is black, and that ...

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