BILL ANALYSIS Ó AB 2101 Page 1 Date of Hearing: April 5, 2016 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair AB 2101 (Gordon) - As Amended March 31, 2016 SUBJECT: SANCTIONS: JURORS KEY ISSUE: IN ORDER TO PROMOTE THE COURT'S INTEREST IN ORDERLY AND EFFICIENT PROCEEDINGS WHILE MAINTAINING DUE PROCESS PROTECTIONS FOR PERSONS SANCTIONED BY THE COURT, SHOULD SEVERAL COURTS BE AUTHORIZED, FOR A FIVE-YEAR PERIOD, TO CONDUCT A PILOT PROJECT THAT WOULD ALLOW A COURT TO SANCTION AN IMPANELED JUROR FOR A KNOWING VIOLATION OF A COURT ORDER UNDER SPECIFIED CIRCUMSTANCES? SYNOPSIS A court has the authority to sanction individuals engaging in misconduct in court. These individuals include litigants, attorneys, and witnesses. When it comes to jurors, however, a court's authority is more limited. If a court seeks to discipline a juror for misconduct, the court must begin contempt proceedings. Due to the potentially severe consequences of being found in contempt, such as incarceration, anyone subject to a contempt proceeding is afforded significant due process rights, including but not limited to the right to a full and fair hearing, the right to the assistance of counsel, the right to gather evidence and prepare a defense, the right to examine AB 2101 Page 2 witnesses, and depending on the punishment, the right to a jury trial. As introduced, this bill would have substantially extended the court's authority to sanction jurors, similar to its authority to sanction other individuals, such as parties and witnesses. According to the Judicial Council, the sponsor of this bill, the goal of the introduced bill was to prevent delays in cases caused by misbehaving jurors. While it is a laudable goal to provide judges with a less burdensome alternative to curb juror misconduct, the scope of the introduced version of this bill was concerning, and could potentially frustrate the goals of California's jury system. With this caution in mind, this bill has been narrowed to more appropriately balance the state's dual interests in supporting judicial economy and the due process rights for individuals who inadvertently violate court orders because they may not be familiar with the decorum expected in court. As amended, this bill authorizes a five-year pilot program that would allow participating courts to impose reasonable monetary sanctions on an impaneled juror for a knowing violation of a lawful court order without good cause or substantial justification. Consistent with existing law, the bill provides that an order imposing sanctions on a person must be in writing, and that the person is provided with notice and an opportunity to be heard. To hold the court to a higher standard of proof than originally proposed, this bill now requires the court to support its sanctions order with clear and convincing evidence. Near the end of the five-year pilot, this bill requires Judicial Council to report to the Legislature and the Governor on its evaluation of the pilot, and on whether the imposition of sanctions affects the number of prospective jurors who report for jury duty. This bill has no opposition on file. SUMMARY: Authorizes California courts, in a limited pilot, the AB 2101 Page 3 ability to impose sanctions on impaneled jurors for knowing violations of a lawful court order. Specifically, this bill: 1)Authorizes, until January 1, 2022, a pilot project that allows a court to impose reasonable monetary sanctions on an impaneled juror for any knowing violation of a lawful court order without good cause or substantial justification that is supported by clear and convincing evidence. 2)Provides that sanctions shall not be imposed except on notice contained in a party's moving or responding papers, or on the court's own motion, after notice and opportunity to be heard. 3)Provides that an order imposing sanctions on an impaneled juror shall be in writing and shall recite in detail the conduct or circumstances justifying the order. 4)Requires the Judicial Council to solicit a representative sample of courts to participate in the pilot project, taking into account size, geography, and other factors identified by Council. 5)Requires the Judicial Council, on or before July 1, 2021, to conduct an evaluation of this pilot project and report to the Governor and the Legislature its findings that is required to also examine whether the imposition of sanctions affects the number of prospective jurors who report for jury duty. EXISTING LAW: 1)Allows a judicial officer to impose reasonable money sanctions, as provided, on a person who violates any lawful AB 2101 Page 4 court order without good cause or substantial justification. For the purposes of this section, the term "person" includes a witness, a party, a party's attorney, or both. (Code of Civil Procedure Section 177.5. Unless stated otherwise, all further statutory references are to the Code of Civil Procedure.) 2)Requires that an order imposing sanctions be in writing and recite in detail the conduct or circumstances justifying the order. (Id.) 3)Prohibits sanctions from being imposed from the court's own motion unless there is notice and opportunity to be heard. (Id.) 4)Allows the court to impose reasonable monetary sanctions as provided on a prospective juror who fails to attend jury as directed or to respond to the court or jury commissioner as provided. (Section 209.) 5)Provides that some of these relevant acts or omissions in respect to the court of justice, or proceedings therein, are contempts of the authority of the court: a) Disorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to interrupt the due course of a trial or other judicial proceeding. b) A breach of the peace, boisterous conduct, or violent disturbance, tending to interrupt the due course of a trial or other judicial proceeding. c) Disobedience of any lawful judgment, order, or process of the court. AB 2101 Page 5 d) Willful disobedience by a juror of a court admonishment related to the prohibition on any form of communication or research about the case, including all forms of electronic or wireless communication or research. e) Unlawfully detaining a witness or party to an action while going to, remaining at, or returning from the court where the action is on the calendar for trial. f) Any other unlawful interference with the process or proceedings of a court. g) When summoned as a juror in a court, neglecting to attend or serve as a juror, or improperly conversing with a party to an action to be tried at the court, or with any other person, in relation to the merits of the action, or receiving a communication from a party or other person in respect to the action, without immediately disclosing the communication to the court. (Section 1209.) FISCAL EFFECT: As currently in print this bill is keyed fiscal. COMMENTS: American Origins of Contempt. The Judiciary Act of 1789 (the Act), signed by President George Washington, established the framework for our federal courts and provided for some of the federal courts' jurisdiction and powers. Among other things, the Act grants our federal courts the "power to?punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same." (1 Stat. 73, 83.; See Bloom v. Illinois (1968) 391 U.S. 194, 207.) AB 2101 Page 6 It is safe to say that the Act arose over suspicions on the corrupting nature of power, and it was thought that the Act would provide a strong judiciary to check on the other two political branches of government. However, those suspicions weren't limited to just Congress and the President. Around the time the Act became law, there was a lingering feeling that a federal judiciary vested with too much power could lead to tyranny. And to a certain extent, that feeling was well-placed. In 1830, the United States House of Representatives impeached federal Judge James Peck for abusing the court's contempt authority when Judge Peck imprisoned and disbarred an individual for criticizing one of Peck's opinions. After the impeachment proceedings, Congress, in 1831, enacted measures to significantly curtail the court's contempt power. (See Bloom, supra, at p. 207.) Indeed, in a reflection of that history, the United States Supreme Court stated that, "vesting the judiciary with completely untrammeled power to punish contempt?makes clear the need for effective safeguards against that power's abuse." (Ibid.) Wisely, the laws on contempt have evolved. Today, contempt is limited to specific acts (instead of summarily contempt), and the law provides contemnors significant due process rights during contempt proceedings. Specific Acts of Contempt in California. In California, certain acts amount to contempt. Some examples include: "disorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to interrupt the due course of a trial or other judicial proceeding;" and "when summoned as a juror in a court, neglecting to attend or serve as a juror." (Section 1209.) In 2012, the Legislature added this modern act of contempt: "willful disobedience by a juror of a court admonishment related to the prohibition on any form of communication or research about the case, including all forms of electronic or wireless communication or research." (Ibid.) AB 2101 Page 7 Due Process Rights in Contempt Proceedings. Due to the potentially severe consequences of being found in contempt, a contemnor is afforded significant due process rights. These rights include the right to a full and fair hearing, the right to the assistance of counsel, the right to gather evidence and prepare a defense, the right to examine witnesses, and depending on the punishment, potentially the right to a jury trial. Additionally, due to the quasi-criminal nature of an act of contempt, the court must prove the act beyond a reasonable doubt. An individual found in contempt may be subject to fines, incarceration, or both. Sanctions: An Alternative to Contempt. Of course, due process is not always expedient. Since contempt proceedings provide significant and important due process to the contemnor, contempt proceedings necessarily take more time and judicial resources. As a result, courts have been authorized the power to "impose reasonable monetary sanctions for any violation of a lawful court order without good cause or substantial justification." (Section 177.5.) Currently, an order for sanctions requires notice and an opportunity to be heard-significantly less due process than what is required under contempt. It is true that the potential penalties associated with sanctions are less severe, so less due process may seem reasonable. However, the court's authority to impose sanctions remains broad ("any violation of a lawful court order") when it is compared to the court's authority in finding modern-day contempt. Current law only allows courts to sanction certain individuals-a witness, a party, or a party's attorney; accordingly, when a court seeks to discipline a juror, the court's only option, generally, is contempt. Author's Statement. According to the author: Currently there are many forms of juror misconduct that can take place during a trial. These include discussing a case AB 2101 Page 8 with other jurors, talking with members of either party of a case, researching evidence outside of the court, and more recently using social media to discuss the case. Social media use by jurors has been a growing phenomenon. Social media posts made by a juror about their specific case is not only a violation of lawful court orders, but can also jeopardize the integrity of court cases and in some instances has resulted in mistrials of cases as well as verdicts that were challenged or overturned, costing government time and taxpayer money. As it stands now, the only avenue to bring about accountability for juror misconduct is to hold the juror in civil contempt of the court. In contrast to these contempt procedures, which may delay a trial for hours or even days, the process for a money sanction may be resolved in matter of minutes while still giving the juror an opportunity to explain his or her actions. In an effort to hold jurors accountable and deter them from violating lawful court orders, AB 2101 would give judicial officers the option to impose reasonable money sanctions on jurors for violations done without good cause or substantial justification. [This bill] will prevent delays in cases over minor juror misconduct, while also allowing a judicial officer an additional tool to protect the integrity of the case at hand. As Introduced, the Bill Would Have Substantially Extended the Court's Authority to Sanction Jurors. According to the Judicial Council, the sponsor of this bill, the goal of the bill is to prevent delays in cases caused by misbehaving jurors. While it AB 2101 Page 9 is a laudable goal to provide judges a less burdensome alternative to curb juror misconduct, the scope of the introduced version of this bill could potentially frustrate the goals of California's jury system, and re-live the memory of the court's summarily contempt power. As introduced, this bill would have allowed the court to sanction jurors for violating any lawful order without good cause, similar to the court's authority to sanction parties, attorneys, and witnesses. However, the original legislation raised significant questions, including (1) whether prospective jurors should be sanctioned under the same standard that applies to those other individuals; (2) whether sanctions would discourage jurors from serving on juries; and (3) whether there were sufficient due process safeguards for jurors to challenge a sanctions order. With these issues in mind, this bill has been narrowed to more appropriately balance the state's dual interests in supporting judicial economy and the due process rights for individuals who inadvertently violate court orders because they may not be familiar with the decorum expected in court. As amended, this bill authorizes a five-year pilot program to allow participating courts to impose reasonable monetary sanctions on an impaneled juror who knowingly violates a lawful court order without good cause or substantial justification. Consistent with existing law, the bill provides that an order imposing sanctions on a person must be in writing, and that juror must be given notice and an opportunity to be heard. To hold the court to a higher standard of proof than what is required to sanction other parties, this bill requires the court to support its sanctions order with clear and convincing evidence. Near the end of the five-year pilot, this bill requires the Judicial Council to report to the Legislature and the Governor on its evaluation of the pilot, and on whether the AB 2101 Page 10 imposition of sanctions affects the number of prospective jurors who report for jury duty. REGISTERED SUPPORT / OPPOSITION: Support Judicial Council of California (sponsor) Opposition None on file Analysis Prepared by:Eric Dang / JUD. / (916) 319-2334