The opinion of the court was delivered by: WORTENDYKE
Defendants have brought three motions to dismiss the indictment in this case. This opinion relates to motion number 1.
On April 8, 1965 the Grand Jury in and for the District of New Jersey returned its indictment charging the defendant corporations, sellers of gasoline within a trading area covered by the States of New Jersey, Pennsylvania and Delaware, with having conspired, during the period stated in the indictment, to unreasonably restrain interstate trade and commerce in gasoline in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1, and to monopolize such trade and commerce in violation of Section 2 of the Act, 15 U.S.C. § 2, by raising, fixing, stabilizing and maintaining tank wagon and retail prices of gasoline, and restricting the amount of gasoline available to distributors of private brands of gasoline in that area. The defendants The Atlantic Refining Company, Cities Service Oil Company, Cities Service Company, and Gulf Oil Corporation are further charged with attempting to monopolize, in violation of Section 2 of the Act.
All of the defendants have moved the Court for a dismissal of the indictment upon the ground that the grand jury which returned the indictment was improperly constituted and impanelled by reason of the systematic and deliberate exclusion therefrom of women. There is no disagreement between the defendants and the Government respecting the procedure followed by the appropriate officials in selecting and impanelling persons for service upon the grand jury.
The Clerk of this Court has explained that the same general pattern is disclosed in the selection of grand and petit jurors, and that the panels drawn are initially weighted in favor of men. The object of this practice is stated to be not to exclude or to limit women from participating on juries, but to achieve a better balance of men and women on juries in the light of the experience, over a period of at least 24 years, that more men than women request to be and are, for valid reasons, excused from jury service.
Movants rely principally upon Ballard v. United States, 1946, 329 U.S. 187, 91 L. Ed. 181, 67 S. Ct. 261, for support of their contention that the method of selecting the panel from which the grand jurors who returned the indictment in this case were drawn invalidates the indictment. At the outset it should be noted that Ballard was decided December 9, 1946. At that time, 28 U.S.C. § 411 (1940 ed., since supplemented by § 1861 of the 1948 revision of that Title), provided that "jurors in a federal court shall have the same qualifications as those of the highest court of law in the State" in which the federal court sits. Ballard, supra, at 190. The trial court in Ballard sat in California, where women were eligible for jury service under State law. 28 U.S.C. § 1861 provides that any citizen of the United States who has attained the age of 21 years, and resides within the judicial district, is competent to serve as a grand juror, subject to certain conditions not here relevant. This section was adopted June 25, 1948, as Chapter 646, 62 Stat. 951. Section 1863 of the same Title, and part of the same Chapter, authorizes the exclusion from the jury panel of "any class or group of persons * * *, for the public interest, * * * based on a finding that such jury service would entail undue hardship, extreme inconvenience or serious obstruction or delay in the fair and impartial administration of justice." The Supreme Court directed the dismissal of the indictment because, as stated in the majority opinion, at p. 194, " A flavor, a distinct quality is lost if either sex is excluded " from a grand or petit jury, and "the exclusion of women from jury panels may at times be highly prejudicial to the defendants." (p. 195.)
The case at bar did not involve the systematic exclusion of women from the panel from which the grand jury was selected. There was, however, an intentionally prearranged systematic disproportion between the number of women and the number of men whose names were placed in the wheel from which the drawing by lot was made. The method and purpose of creating this disproportion is clearly stated in the letter of the Court Clerk disclosing the procedure employed, which states in part:
"We first seek to obtain a representative number from each county serving the Newark area. From the 1950 census we obtained the population of each county. We seek to have in the wheel from which the drawing is made the same ratio by county as the ratio of each county to the total population of those counties. After deciding on the number of wheel cards to be taken from the pool for each county and placed in the wheel for drawing, we determine that 2/3rds of the cards should be those of men and 1/3 those of women. This is not discrimination, but there is a valid reason therefor. Experience indicates that more men request and are excused from jury service than women. Therefore, by this method we should obtain a better balance . . . . Even though the cards were 2-1 on the male side, when the 6,314 cards were placed in the drum, lady luck determined the division of the 2,000 removed. . . . A check of the names shows 1,031 men and 969 women, or 48.4% women on the list from which jurors will be summoned for service. So, though only 33% of women went into the drum, by luck of the draw, 48.4% came out."
18 U.S.C. § 3321 provides, in pertinent part:
"Every grand jury impaneled before any district court shall consist of not less than sixteen nor more than twenty-three persons. * * *"
28 U.S.C. § 1864 provides, in pertinent part:
"The names of grand and petit jurors shall be publicly drawn from a box containing the names of not less than three hundred qualified persons at the time of each drawing.
"The jury box shall from time to time be refilled by the clerk of court, or his deputy, and a jury ...