BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
AB 1401 (Committee on Judiciary)
As Amended June 10, 2013
Hearing Date: June 25, 2013
Fiscal: No
Urgency: No
RD
SUBJECT
Jury Duty: Eligibility
DESCRIPTION
This bill would allow for a lawful permanent immigrant to serve
on a jury.
BACKGROUND
Commonly discussed as a citizen's civic duty, jury service
fundamentally functions to "preserve[ ] the democratic element
of the law, as it guards the rights of the parties and ensures
continued acceptance of the laws by all of the people." (Green
v. United States (1958) 356 U.S. 165, 215 (Black, J.,
dissenting). It "affords ordinary citizens a valuable
opportunity to participate in a process of government, an
experience fostering, one hopes, a respect for law." (Duncan v.
Louisiana (1968) 391 U.S. 145, 187 (Harlan, J., dissenting). As
noted by the U.S. Supreme Court, "[i]ndeed, with the exception
of voting, for most citizens the honor and privilege of jury
duty is their most significant opportunity to participate in the
democratic process." (Powers v. Ohio (1991) 499 U.S. 400, 406.)
Under California law, every person over 18 years of age is
eligible and qualified to be a prospective juror unless they
fail to meet certain minimal requirements. For example, they
must be a resident of the jurisdiction they are summoned to
serve, be possessed of sufficient knowledge of the English
language, and not be subject to conservatorship. Among these
minimal requirements is also requirement that the person be a
U.S. citizen. Any person who does not meet all of the
(more)
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eligibility requirements is automatically excluded from serving
on juries. As such, noncitizens are categorically excluded from
jury service as a result of this statutory requirement.
Citizenship is neither compelled by the federal constitution,
nor is it required by the state's constitution. While the U.S.,
Supreme Court has never directly ruled on the issue of whether
the citizenship requirement for jury service violates
constitutional rights such as the Sixth Amendment or the Equal
Protection Clause of the Fourteenth Amendment, it has at times
in its history appeared to recognize, in dictum, that state laws
may require a juror be a citizen. (See U.S. v. Wood (1936) 299
U.S. 123, 145, where the Court referred to the mixed jury of
citizens and aliens as a type of traditional jury requirement
that is not constitutionally compelled by the Sixth Amendment to
secure impartiality; see also Carter v. Jury Commission (1970)
396 U.S. 320, 332, where the Court stated in dicta that
"[s]tates remain free to confine the selection [of jurors] to
citizens.")
This bill would allow lawful permanent immigrants to serve on
trial juries if other existing eligibility requirements are met.
CHANGES TO EXISTING LAW
Existing law provides that the Legislature recognizes that trial
by jury is a cherished constitutional right, and that jury
service is an obligation of citizenship. Existing law provides
that it is the policy of the State of California that all
persons selected for jury service shall be selected at random
from the population of the area served by the court; that all
qualified persons have an equal opportunity, in accordance with
this chapter, to be considered for jury service in the state and
an obligation to serve as jurors when summoned for that purpose;
and that it is the responsibility of jury commissioners to
manage all jury systems in an efficient, equitable, and
cost-effective manner, in accordance with this chapter. (Code
Civ. Proc. Sec. 192.)
Existing law requires that all persons selected for jury service
be selected at random, from a source or sources inclusive of a
representative cross section of the population of the area
served by the court. Sources may include, in addition to other
lists, customer mailing lists, telephone directories, or utility
company lists. Existing law specifies that the list of
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registered voters and the Department of Motor Vehicles' list of
licensed drivers and identification cardholders resident within
the area served by the court, are appropriate source lists for
selection of jurors. These two lists, when substantially purged
of duplicate names, shall be considered inclusive of a
representative cross section of the population as required.
(Code Civ. Proc. Sec. 197(a), (b).)
Existing law specifies that no eligible person shall be exempt
from service as a trial juror by reason of occupation, economic
status, or any characteristic listed or defined in Government
Code Section 11135 (relating to discrimination on the basis of
race, national origin, ethnic group identification, religion,
age, sex, sexual orientation, color, genetic information, or
disability), or for any other reason. An eligible person may
only be excused from jury service for undue hardship, as
specified. (Code Civ. Proc. Sec. 204.)
Existing law specifies that no person shall be excluded from
eligibility for jury service in the State of California for any
reason other than those reasons provided below. (Code Civ.
Proc. Sec. 203(b).)
Existing law provides that all persons are eligible and
qualified to be prospective trial jurors, except the following:
persons who are not citizens of the United States;
persons who are less than 18 years of age;
persons who are not domiciliaries of the State of California,
as specified;
persons who are not residents of the jurisdiction wherein they
are summoned to serve;
persons who have been convicted of malfeasance in office or a
felony, and whose civil rights have not been restored;
persons who are not possessed of sufficient knowledge of the
English language, provided that no person shall be deemed
incompetent solely because of the loss of sight or hearing in
any degree or other disability which impedes the person's
ability to communicate or which impairs or interferes with the
person's mobility;
persons who are serving as grand or trial jurors in any court
of this state; and
persons who are the subject of conservatorship. (Code Civ.
Proc. Sec. 203(a).)
This bill would allow a lawful permanent immigrant to be
eligible to serve on a jury if the other requirements are met.
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COMMENT
1. Stated need for the bill
According to the author:
Societal notions of who is qualified to be a juror have
evolved over time. Historically, we have excluded non-whites,
women and persons over 60 - restrictions that we now recognize
are unrelated to good jury service. Code of Civil Procedure
[S]ection 203 currently requires that every juror be a U.S.
citizen. This requirement is an historical artifact that
unreasonably excludes many qualified members of the community
who are fully able and willing to contribute. It also creates
a wasteful and unnecessary ground for challenging jury
verdicts. Citizenship is poorly correlated with the essential
attributes for jury service; it excludes many qualified
members of the community while including others who may not be
as capable as some of those who are excluded. This distinction
is a product of statutory preference, not constitutional
necessity. Citizenship is not required of other participants
in the justice system, such as lawyers, judges, other court
personnel, witnesses and parties, and is not a sensible
requirement for jurors. Because juror lists are drawn from
DMV records that include many non-citizens, it would be more
efficient and less costly to include lawful permanent
immigrants in the eligible jury pool if they otherwise meet
the criteria for eligibility. Jury service is also an
important mode of civic engagement for permanent immigrants,
who make up a significant portion of our neighbors, friends,
family and coworkers, and it is an appropriate obligation for
those who benefit from the protection of our laws and can be
rightfully called on to contribute to their communities.
2. Public policy considerations in support of this bill
While noncitizens are often parties in jury trials, they are
categorically excluded from the juries that decide their cases
under California law. (See Background.) This bill would seek
to remove the complete bar for noncitizens to serve on trial
juries by allowing a certain subset of immigrants-lawful
permanent immigrants-to participate in this civic institution.
The U.S Citizenship and Immigrant Services, defines a "lawful
permanent resident" as any person not a U.S. citizen who is
residing in the U.S. under legally recognized and lawfully
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recorded permanent residence as an immigrant, and is also known
as a "Permanent Resident Alien," "Resident Alien Permit Holder,"
and "Green Card Holder." Many such lawful permanent residents
have lived in the U.S. for numerous years before they are able
to obtain their green card, and then are required to live in the
U.S. as a permanent resident for another five years (three if
married to a U.S. citizen) before they can undergo the
naturalization process-assuming they meet the other
naturalization requirements. According to the U.S. Department
of Homeland Security, "[p]ermanent resident status confers
certain rights and responsibilities. For example, LPRs may live
and work permanently anywhere in the United States, own
property, and attend public schools, colleges, and universities.
They may also join certain branches of the Armed Forces . . . ."
(Annual Report, U.S. Legal Permanent Residents: 2011 (Apr. 2012)
[as of June 19, 2013].)
Staff notes that citizenship, historically, was not a
requirement for juries in the United States or in the
Anglo-American legal tradition. An early English common law
right to a jury de medietate linguae, or a "mixed jury" composed
of half aliens, was codified in England in 1354 for civil and
criminal trials involving aliens and that tradition was brought
with English settlers to North America. "[W]hether or not the
Constitution and Bill of Rights meant to continue the mixed
jury, in practice it continued to be used after ratification.
Some state laws provided for mixed juries, and many courts
accepted them in the period between ratification [of the
Constitution] and the early twentieth century in holding that
noncitizens had a right to a mixed jury or that it was within
the court's discretion to grant one." (Amy Motomura, The
American Jury: Can Noncitizens Still Be Excluded? (June 2012) 64
Stan. L. Rev. 1503, 1516-1517, internal footnote citations
omitted.) Congress passed the first federal statute to
prescribe juror qualifications, including the citizenship
requirement, in 1957. As a matter of state law, California
began excluding noncitizens from jury service as early as 1851,
within one year of achieving statehood. (Id. at pp. 1529-1530.)
Despite that exclusion, there are numerous public policy
objectives that would be promoted by the change in the jury duty
eligibility requirements suggested by AB 1401.
First, the author asserts that allowing lawful permanent
immigrants to serve on juries would arguably promote the goal of
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civic engagement. Relatedly, many view jury service as a
privilege and a right to engage in an institution that helps to
ensure the fair application of the law. As stated by Chief
Justice Taft, writing for the U.S. Supreme Court in Balzac v.
Porto Rico (1922): "[t]he jury system postulates a conscious
duty of participation in the machinery of justice. . . . One of
its greatest benefits is in the security it gives the people
that they, as jurors actual or possible, being part of the
judicial system of the country can prevent its arbitrary use or
abuse." (258 U.S. 298, 310.) Wholesale exclusion of
noncitizens from juries that often adjudicate matters affecting
noncitizen parties arguably undermines the institutional
legitimacy of a system that is predicated in part upon having
adjudication of the matter by a jury of one's peers. This has
been a not uncommon thread of the American jury. As noted by
the author, societal notions have evolved over time to ensure
the right of women and African Americans to serve on juries-a
right that the Supreme Court has held serves to protect the
party to the case who is female or African American, as much as
it does the potential juror.
While one might argue that excluding noncitizens is not
necessarily comparable to excluding African Americans or women,
as those the former classifications involve immutable
characteristics whereas noncitizens can generally become
naturalized at some point, by excluding this entire class of
persons, arguably, the effect is to exclude a large number of
racial or ethnic minorities. Including them, on the other hand,
would likely also increase the diversity of juries and create
jury pools that are reflective of a California population that
grows increasingly diverse. That diversity in turn lends to the
airing of different viewpoints, encourages tolerance and
understanding of others, and can increase the length and quality
of jury deliberations. Thus, as a matter of public policy, by
including lawful permanent immigrants as persons generally
qualified to serve on a jury, this bill would appear to help
achieve such goals.
Furthermore, there is an argument to be made that the
citizenship requirement leads to underrepresentation of certain
races and ethnicities in the jury pool making it less likely
that the court will draw a jury pool from a truly representative
(or fair) cross section of the population of the area being
served by the court, which is required as a matter of law and is
a fundamental premise of the right to a trial by jury. (See
Code Civ. Proc. Sec. 197(a).) This impact would arguably be
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particularly pronounced in this state, as the most diverse state
in the nation. In light of these public policy considerations,
it may be appropriate, if not beneficial, to allow for lawful
permanent residents to serve on juries in their communities, as
this bill would propose to do.
It should be note that this bill would only remove a barrier to
jury service. Potential jurors that are lawfully permanent
immigrants would still have to meet the remaining eligibility
and qualification requirements.
3. Fairness
Even though juries are civic institutions that allow members of
society to participate in their community's governance and
protect the people from the arbitrary use or abuse of the law
against members of society, many people view jury service as a
duty-a civic duty-owed to their government. As noted in
Comment 1, the author contends that jury service "is an
appropriate obligation for those who benefit from the protection
of our laws and can be rightfully called on to contribute to
their communities." At the same time, however, some might argue
that lawful permanent residents not only enjoy the protection of
these laws, but in return, under existing law, must pay taxes,
actively contribute back to their communities through work,
school, and many other activities, and can even be required to
register with the Armed Forces. Although some may argue that to
impose an additional obligation without additional rights is
unfair, there are many reasons why lawful permanent residents
would prefer to have this obligation to serve on trial juries,
than to not; just as there are many reasons this state may have
an interest in allowing such persons to serve on juries.
Support : None Known
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : None Known
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Prior Vote :
Assembly Floor (Ayes 45, Noes 26)
Assembly Judiciary Committee (Ayes 7, Noes 3)
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