BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 87| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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: AB 87 Page 2 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 AB 87 Page 3 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. AB 87 Page 4 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. AB 87 Page 5 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. AB 87 Page 6 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. AB 87 Page 7 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 Page 8 6/11/15 12:45:58 **** END ****