BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 87|
|Office of Senate Floor Analyses | |
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THIRD READING
Bill No: AB 87
Author: Mark Stone (D)
Amended: 6/1/15 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE: 6-1, 6/9/15
AYES: Jackson, Moorlach, Hertzberg, Leno, Monning, Wieckowski
NOES: Anderson
ASSEMBLY FLOOR: 68-2, 3/19/15 - See last page for vote
SUBJECT: Jurors: peremptory challenge
SOURCE: Equality California
DIGEST: This bill extends the existing protection against the
use of a peremptory challenge to remove a prospective juror on
the basis of an assumption that the prospective juror is biased
merely because of certain characteristics (race, color,
religion, sex, national origin, sexual orientation, or similar
grounds) to all characteristics listed or defined in a specified
anti-discrimination statute under the Government Code (i.e.
race, national origin, ethnic group identification, religion,
age, sex, sexual orientation, color, genetic information, or
disability), or similar grounds.
ANALYSIS:
Existing law:
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1) Provides, pursuant to Government Code Section 11135, that no
person in the State of California shall, on the basis of
race, national origin, ethnic group identification, religion,
age, sex, sexual orientation, color, genetic information, or
disability, be unlawfully denied full and equal access to the
benefits of, or be unlawfully subjected to discrimination
under, any program or activity that is conducted, operated,
or administered by the state or by any state agency, is
funded directly by the state, or receives any financial
assistance from the state.
2) Defines "sex" for the above purposes to include, but not be
limited to, a person's gender, pregnancy or medical
conditions related to pregnancy, childbirth or medical
conditions related to childbirth, as well as breastfeeding or
medical conditions related to breastfeeding. Defines
"gender" to mean sex, and include a person's gender identity
and gender expression, and defines "gender expression" to
mean a person's gender-related appearance and behavior
whether or not stereotypically associated with the person's
assigned sex at birth.
3) Defines "sexual orientation" for the above purposes to mean
heterosexuality, homosexuality, and bisexuality.
4) Prohibits the exemption of any eligible person from service
as a trial juror by reason of occupation, economic status, or
any characteristic listed or defined in the Government Code
Section above (i.e. race, national origin, ethnic group
identification, religion, age, sex, sexual orientation,
color, genetic information, or disability), or for any other
reason. Provides that an eligible person may be excused from
jury service only for undue hardship, upon themselves or upon
the public, as defined by the Judicial Council.
5) Specifies procedures governing the selection of a fair and
impartial jury in civil trials, including that counsel for
each party shall have the right to examine any of the
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prospective jurors, as specified, in order to enable counsel
to intelligently exercise both peremptory challenges and
challenges for cause.
6) Specifies procedures governing the selection of a jury in
criminal trials, including that counsel for each party shall
have the right to examine any or all of the prospective
jurors, as specified, in aid of the exercise of challenges
for cause.
7) Provides that a challenge is an objection made to the trial
jurors that may be taken by any party to the action, and is
of specified classes and types, including (a) a challenge to
the trial jury panel for cause, as specified, and (b) a
challenge to a prospective juror by either:
A challenge for cause, for one of the following reasons:
o General disqualification-that the juror is
disqualified from serving in the action on trial;
o Implied bias-as, when the existence of the facts as
ascertained, in judgment of law disqualifies the juror;
or
o Actual bias-the existence of a state of mind on the
part of the juror in reference to the case, or to any of
the parties, which will prevent the juror from acting
with entire impartiality, and without prejudice to the
substantial rights of any party.
A peremptory challenge to a prospective juror.
1) Enumerates the sole statutory challenges for cause on
grounds of general disqualification or implied bias, as
specified.
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2) Provides that after any jurors have been removed from the
panel for cause, the parties may remove a specified number of
jurors peremptorily (without giving any reason), and provides
a specified number of peremptory challenges to which each
party is entitled depending on the number of parties in the
litigation and whether the case is criminal or civil in
nature.
3) Provides, under Rubio v. Superior Court (1979) 24 Cal.3d 93,
97-98, that a defendant's right to trial by a jury drawn from
a representative cross section of the community, as
guaranteed by the Sixth Amendment of the federal Constitution
and article I, section 16, of the California Constitution, is
violated when a "cognizable group" within that community is
excluded from jury venire. In order for a group to be
considered cognizable, two requirements must be met: (a) the
group's members must share a common perspective arising from
their life experience in the group; and (b) it must be shown
by the party seeking to prove a violation of the
representative cross section rule that no other members of
the community are capable of adequately representing the
perspective of the group assertedly excluded.
4) Provides that a party may not use a peremptory challenge to
remove a prospective juror on the basis of an assumption that
the prospective juror is biased merely because of his or her
race, color, religion, sex, national origin, sexual
orientation, or similar grounds.
This bill aligns the list of protected classifications for
purposes of non-discriminatory peremptory challenges with the
list of classifications protected under Government Code Section
11135, above, thereby prohibiting the use of a peremptory
challenge to remove a prospective juror on the basis of an
assumption that the prospective juror is biased merely because
of his or her ethnic group identification, age, genetic
information, or disability, in addition to race, color,
religion, sex, national origin, sexual orientation, or similar
grounds, as provided under existing law.
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Background
In 1978, the California Supreme Court declared, "the use of
peremptory challenges to remove prospective jurors on the sole
ground of group bias denies plaintiffs the right to trial by a
jury drawn from a representative cross-section of the community
under article I, section 16, of the California Constitution."
(People v. Wheeler (1978) 22 Cal.3d 258.) This concept was
later adopted by the U.S. Supreme Court in Batson v. Kentucky
(1986) 476 U.S. 79, which held that the Equal Protection Clause
of the United States Constitution prohibits jury selection based
upon racial stereotyping. Eight years later, the Court decided
J. E. B. v. Alabama ex rel. T. B. (1994) 511 U.S. 127, extending
the rationale of Batson to gender discrimination.
Additionally, in Rubio v. Superior Court, (1979) 24 Cal.3d 93,
the California Supreme Court held that a defendant's right to
trial by a jury drawn from a representative cross section of the
community is violated when any "cognizable group" within that
community is excluded from jury venire. Then, in People v.
Garcia (2000) 77 Cal.App.4th 1269, the appellate court
determined that lesbians and gay men met the two requirements in
Rubio and, thus, constitute a "cognizable group."
Subsequently, in 2000, AB 2418 (Migden, Chapter 43, Statutes of
2000) codified those cases as Section 231.5 of the Code of Civil
Procedure. The resulting section prohibits the use of a
peremptory challenge to remove a prospective juror on the basis
of an assumption that the prospective juror is biased merely
because of his or her race, color, religion, sex, national
origin, sexual orientation, or similar grounds.
This bill now seeks to expand this protection by prohibiting the
use of a peremptory challenge to remove a prospective juror on
the basis of any characteristic for which a state agency may not
discriminate (i.e. race, national origin, ethnic group
identification, religion, age, sex, sexual orientation, color,
genetic information, or disability), or similar ground.
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Comments
As stated by the author:
This bill seeks to update current law to ensure that
peremptory challenges may not be used to discriminate against
prospective jurors based on gender identity, gender
expression, ethnic group identification, genetic information
or disability.
The jury system provides the foundation for the California
justice system. We rely upon an impartial jury to yield fair
and just results. The jury, by law, should be a cross section
of the population in a community. Without specific protection
from peremptory challenges made on the assumption of bias
because of gender identity, gender expression, ethnicity, age,
genetic information, and disability, it is possible for many
community members to be excluded from prospective jury
service. If certain members of a community are denied from
the prospect of jury service, it is possible to deny victims
and defendants the right to a truly fair trial.
The need for fair trials is especially important in the
transgender and gender non-conforming community, because a
disproportionate amount of these individuals come into contact
with the criminal justice system. At least 16 [percent] of
transgender individuals have been incarcerated at some point
in their lives, with the percentage of transgender women even
higher at 21 [percent.] (The National Transgender
Discrimination Survey Report:
http://endtransdiscrimination.org/report.html).
Furthermore, by aligning the jury code with the government's
non-discrimination laws, California can continue to be a
leader in ensuring that transgender people and others are
protected from discrimination and are treated equally under
law.
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FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified6/11/15)
Equality California (source)
American Civil Liberties Union of California
American Federation of State, County and Municipal Employees,
AFL-CIO
California Communities United Institute
California Public Defenders Association
Consumer Attorneys of California
National Center for Lesbian Rights
Transgender Law Center
OPPOSITION: (Verified6/11/15)
None received
ASSEMBLY FLOOR: 68-2, 3/19/15
AYES: Achadjian, Alejo, Baker, Bloom, Bonilla, Bonta, Brough,
Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu,
Chu, Cooley, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier,
Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez,
Gonzalez, Gordon, Gray, Grove, Holden, Irwin, Jones-Sawyer,
Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis,
Mayes, McCarty, Medina, Mullin, Nazarian, Obernolte,
O'Donnell, Olsen, Perea, Quirk, Rendon, Ridley-Thomas,
Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond,
Ting, Wagner, Waldron, Wilk, Williams, Wood, Atkins
NOES: Gallagher, Harper
NO VOTE RECORDED: Travis Allen, Bigelow, Cooper, Beth Gaines,
Hadley, Roger Hernández, Jones, Melendez, Patterson, Weber
Prepared by:Ronak Daylami / JUD. / (916) 651-4113
AB 87
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6/11/15 12:45:58
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