BILL ANALYSIS                                                                                                                                                                                                    



                                                                    AB 2101


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          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  








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          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  








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          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  








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            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.









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             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.)










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          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.)










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          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  








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               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  








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          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  








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          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