[104 NJSuper Page 484] This is a joint motion by 37 defendants to dismiss four indictments charging rioting, unlawful assembly and assault upon a police officer. Their motion attacks the methods used by the jury commissioners in selecting the grand jury which indicted them, contending
such methods violated the laws and constitutions of the State of New Jersey and of the United States. In particular, they contend the grand jury was not truly representative of a cross-section of the community because "blue-collar, hourly-paid wage earners," were systematically excluded. Under attack is the system used to select grand jurors in Middlesex County for the past 20 years.
This challenge to the grand jury array is made under R.R. 3:3-2(b) which provides:
"(b) MOTION TO DISMISS. If a defendant has been held to answer a complaint charging an indictable offense after the grand jury by which he is indicted has been impanelled, a motion to dismiss the indictment may be based on objections to the array."
The complaints against defendants were filed in August 1966, and the grand jury which indicted them was sworn and impanelled in January 1968. It seems clear that R.R. 3:3-2(b) cannot be used as the vehicle for this motion since the complaints were made before the grand jury was impanelled. This motion should have been made before the January 1968 grand jury was sworn. R.R. 3:3-2(a). The obvious purpose of R.R. 3:3-2(a) is to compel an attack on the array of grand juries to be brought before they are sworn and begin to function. If an attack is permitted after they are sworn all indictments brought in by them, and proceedings taken in reliance thereon by way of trial or plea, would be subject to challenge. No sound reason is presented for relaxing the rule under R.R. 1:27 A; however, if it is ultimately decided that I misconstrued R.R. 3:3-2(a) and (b), I will consider the defendants' motion on its merits.
Attacks on the array of grand juries are today being made with great frequency throughout the country and in New Jersey. While the factual patterns differ, the basis of the attacks are similar to the one being made in this case. The generally accepted principles of law applicable to such attacks are that where there is a systematic exclusion
from jury duty of a recognizable identifiable group within the community, the Equal Protection Clause of the Fourteenth Amendment is violated irrespective of a showing of prejudice. Crawford v. Bounds, 395 F.2d 297, 308 (4 th Cir. 1968). If the exclusion results, it is condemned regardless of whether it is due to neglect or because of intentional conduct. Dow v. Carnegie-Illinois Steel Corp., 224 F.2d 414 (3 Cir., 1955), certiorari denied 350 U.S. 971, 76 S. Ct. 442, 100 L. Ed. 842 (1956). The case of Hoyt v. Florida, 368 U.S. 57, 82 S. Ct. 159, 7 L. Ed. 2 d 118 (1961) sets forth the constitutional limits:
"* * * We of course recognize that the Fourteenth Amendment reaches not only arbitrary class exclusions from jury service based on race or color, but also all other exclusions which 'single out' any class of persons 'for different treatment not based on some reasonable classification.' Hernandez v. Texas, 347 U.S. 475, 478, 74 S. Ct. 667, 670, 98 L. Ed. 866 ." (at pp. 59, 60, 82 S. Ct., at p. 161)
When a party challenges the array of a jury, grand or petit, the burden is upon the challenger to establish an unlawful discrimination. Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2 d 759 (1965); State v. Smith, 102 N.J. Super. 325, 346 (Law Div. 1968). There is a presumption that the jury commissioners acted within the scope and authority of their office. Pope v. United States, 372 F.2d 710, 723 (8 Cir. 1967); State v. Stewart, 2 N.J. Super. 15, 23 (App. Div. 1949). The means and methods used to select jurors must be designed to insure that they are impartially drawn from a cross-section of the community. Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2 d 776 (1968), rehearing denied 393 U.S. 898, 89 S. Ct. 67, 21 L. Ed. 2 d 186. When the formation of a jury is attacked, courts test the source from which the jury list is comprised and not the composition of any given panel. Thiel v. Southern Pac. Co., 328 U.S. 217, 66 S. Ct. 984, 90 L. Ed. 1181 (1946). A jury panel need
not be a perfect mirror of the community or reflect the proportionate number of every identifiable ...