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
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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