BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015 - 2016 Regular Session
SB 428 (Hall)
Version: February 25, 2015
Hearing Date: May 12, 2015
Fiscal: No
Urgency: No
RD
SUBJECT
Juries: peace officer exemption
DESCRIPTION
This bill would exempt from voir dire in criminal matters
certain peace officers, including various parole officers,
probation officers, deputy probation officers, board
coordinating parole agents, correctional officers,
transportation officers of a probation department, and other
employees, of the Department of Corrections and Rehabilitation,
the State Department of State Hospitals, and the Board of Parole
Hearings.
BACKGROUND
Prior to 1975, the Code of Civil Procedure exempted 17
occupations from jury service. These included: legislators,
members of Congress, military personnel, peace officers, local
office holders, attorneys, clergy, teachers, doctors, dentists,
merchant seamen, telephone and telegraph operators,
firefighters, railroad employees, faith healers, and cloister
monks and nuns. These exemptions were granted on the general
notion that individuals in these occupations provided a valuable
public service that should not be interrupted by a requirement
of jury service. In 1975, AB 681 (Siegler, Ch. 593, Stats.
1975) repealed those categorical exemptions and replaced them
with a generic provision allowing any person to be excused from
jury duty for undue hardship on themselves or the public. (See
current Code Civ. Proc. Sec. 204(b).)
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Subsequently, however, exemptions began to be reinstated for a
number of categories of peace officers. First, a full exemption
from jury duty was re-established for "line" peace
officers-police, sheriffs, CHP-by passage of SB 549 (Wilson, Ch.
748, Stats. 1977), the rationale being that such individuals
were rarely chosen to serve and a vital public resource was
wasted in attendance through the process of jury selection.
This exemption was later extended to judges. Then in 1988, a
comprehensive revision of the law relating to juries was enacted
by AB 2617 (Harris, Ch. 1245, Stats. 1988) wherein the exemption
for judges was removed, and the peace officer exemption was
limited to criminal matters only. Again, in 1992, the peace
officer exemption was expanded to include civil cases and, two
years later, an exemption from voir dire in criminal cases was
extended to California State University and University of
California police. Finally, in 2001, an exemption was provided
for Bay Area Rapid Transit District police from jury duty in
civil and criminal matters. (See Code Civ. Proc. Sec. 219 for
current peace officer exemptions.)
Despite the inclusion of these new exemptions from jury service,
throughout the 1990s and over the last decade, attempts to add
new exemptions for other peace officers or other categories of
individuals, including judges, have been largely unsuccessful.
(See Prior Legislation.) AB 1708 (Alejo, 2014), substantially
similar to this bill, would have provided for an exemption from
voir dire in criminal matters for these same peace officers and
was opposed by judges, the courts, and district attorneys, among
others. That bill died in the Assembly Public Safety Committee
without a hearing. Similarly, SB 1133 (Anderson, 2014) would
have provided an exemption for certain Department of Fish and
Game peace officers from both civil and criminal voir dire, and
died in this Committee without a hearing.
This bill now seeks to provide an exemption for numerous peace
officers from jury duty in criminal matters.
CHANGES TO EXISTING LAW
Existing law provides that the Legislature recognizes that trial
by jury is a cherished constitutional right, and that jury
service is an obligation of citizenship. It is the policy of the
State of California that all persons selected for jury service
shall be selected at random from the population of the area
served by the court; that all qualified persons have an equal
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opportunity, in accordance with this chapter, to be considered
for jury service in the state and an obligation to serve as
jurors when summoned for that purpose; and that it is the
responsibility of jury commissioners to manage all jury systems
in an efficient, equitable, and cost-effective manner. (Code
Civ. Proc. Sec. 191.)
Existing law provides that all persons are eligible to be
prospective trial jurors, except the following:
persons who are not citizens of the United States;
persons who are less than 18 years of age;
persons who are not domiciliaries of the State of California,
as specified;
persons who are not residents of the jurisdiction wherein they
are summoned to serve;
persons who have been convicted of malfeasance in office or a
felony, and whose civil rights have not been restored;
persons who are not possessed of sufficient knowledge of the
English language, provided that no person shall be deemed
incompetent solely because of the loss of sight or hearing in
any degree or other disability which impedes the person's
ability to communicate or which impairs or interferes with the
person's mobility;
persons who are serving as grand or trial jurors in any court
of this state; or
persons who are the subject of conservatorship. (Code Civ.
Proc. Sec. 203(a).)
Existing law prohibits any person from being excluded from
eligibility for jury service in the State of California, for any
reason other than those reasons provided above. (Code Civ. Proc.
Sec. 203(b).)
Existing law prohibits the exemption of any eligible person from
service as a trial juror by reason of occupation, economic
status, or race, national origin, ethnic group identification,
religion, age, sex, sexual orientation, color, genetic
information, or disability, or for any other reason. Existing
law 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. (Code Civ. Proc.
Sec. 204.)
Existing rule of court provides that an excuse for undue
hardship may be granted for various reasons, including that the
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prospective juror's services are immediately needed for the
protection of the public health and safety, and that it is not
feasible to make alternative arrangements to relieve the person
of those responsibilities during the period of service as a
juror without substantially reducing essential public services.
(Cal. Rule Court 2.1008(d)(6).)
Existing law prohibits certain peace officers from being
selected for voir dire in both civil and criminal matters,
including: sheriffs, police officers, municipal court marshals,
constables, inspectors and investigators of district attorneys,
California Highway Patrol officers, and San Francisco Bay Area
Rapid Transit District Police Department police, as specified.
(Code Civ. Proc. Sec. 219(b)(1).)
Existing law prohibits specified members of the University of
California Police Department as well as members of the
California State University Police Departments from being
selected for voir dire in criminal matters only. (Code Civ.
Proc. Sec. 219(b)(2).)
Existing law requires the Judicial Council to adopt a rule of
court, on or before January 1, 2005, requiring the trial courts
to establish procedures for jury service that gives peace
officers, as defined by Section 830.5 of the Penal Code,
scheduling accommodations when necessary. (Code Civ. Proc. Sec.
219.5.)
Existing law 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 the following classes and types:
a challenge to the trial jury panel for cause, as specified;
or
a challenge to a prospective juror by either of the following:
o A challenge for cause, for (1) general
disqualification-that the juror is disqualified from
serving in the action on trial, (2) implied bias-as, when
the existence of the facts as ascertained, in judgment of
law disqualifies the juror, or (3) 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.
o A peremptory challenge to a prospective juror. (Code
Civ. Proc. Sec. 225.)
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Existing law specifies 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. (Code Civ. Proc. Sec.
231.5.)
Existing case law provides 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: (1) the
group's members must share a common perspective arising from
their life experience in the group; and (2) 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." (Rubio v. Superior Court, (1979) 24 Cal
3d 93, 97; see also People v. Garcia (2000) 77 Cal.App.4th 1269,
1274.)
This bill would exempt from voir dire in criminal matters
certain peace officers, including various parole officers,
probation officers, deputy probation officers, board
coordinating parole agents, correctional officers,
transportation officers of a probation department, and other
employees of the Department of Corrections and Rehabilitation,
the State Department of State Hospitals, and the Board of Parole
Hearings.
COMMENT
1. Stated need for the bill
According to the author:
Long standing current law exempts sheriffs/deputy sheriffs,
police officers, UC and BART police, municipal court marshals,
and various other peace officers from jury duty on civil and
criminal trials. Probation, parole and correctional officers,
while similarly holding peace officer status, are not exempt
from jury duty.
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This bill would extend the jury duty exemption, in criminal
trials only , to parole officers, probation officers,
correctional officers, transportation officers of a probation
department, and other employees of [the California Department
of Corrections and Rehabilitation], State Department of State
Hospitals, and the Board of Parole Hearings. [Emphasis in
original.]
[ . . . ] Probation Departments have historically served as an
arm of the court and are responsible for providing
pre-sentence reports to the court. As part of this process,
probation meets with the defendant to discuss a number of
issues related to their case. In addition, probation is
responsible for the pre-sentence investigation/report and
subsequently the potential supervision of the defendant if
sentenced to probation jurisdiction. Given this on-going
interaction, there is an inherent potential for a conflict of
interest for probation departments.
Additionally, when probation officers go through the jury
selection process, they are required to disclose personal
information regarding their job, spouse, and other privileged
information. This places peace officers in a situation where
they are sharing personal information in front of the
defendant who could possibly be under their direct
supervision, or that of their departments, at a later time.
This creates a significant safety risk for these officers.
Lastly, probation, parole and correctional officers are
responsible for critical public safety services including
supervising offenders on Post Release Community Supervision
(PRCS), Mandatory Supervision (MS), probation, and parole as
well as those serving time in state and local detention
facilities. Pulling these officers away from their duties can
significantly impact an agency's ability to effectively manage
and administer programs and supervision. For example, county
juvenile halls have minimum staffing ratios. In cases where an
institutional staff is called for jury service, it can be
extremely difficult to ensure those minimum staffing ratios
are maintained and very expensive in cases where overtime is
needed to ensure coverage.
While peace officers in many cases are not selected to serve
on juries -particularly in criminal cases-probation and parole
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officers throughout the state continue to be called to go
through the selection process. The time spent reporting for
jury duty is critical time spent away from their public safety
duties, caseloads, and institutions.
A co-sponsor of this bill, the State Coalition of Probation
Organizations, adds that "Probation Officers are charged with
preparing pre-sentence reports for adult defendants and
dispositional reports for minors, and monitoring and supervising
individuals while released on community supervision or
probation. These activities often bring probation officers into
contact with very dangerous individuals. Recognizing the
inherent danger that police officers and deputy sheriffs are
exposed to through their interactions with potential criminals,
several decades ago, the legislature exempted these peace
officers from service on civil and criminal jury trials.
Probation peace officers were not included in the exemption. SB
428 seeks to extend this exemption to probation peace officers.
Given the enhanced role probation peace officers play today in
criminal proceedings, and the more dangerous population they
work with, extending the exemption to jury duty for CRIMINAL
TRIALS ONLY is a matter of probation peace officer safety."
Co-sponsor Chief Probation Officers of California also writes
that "[w]hile peace officers in many cases are not selected to
serve on juries-particularly in criminal cases-probation and
parole officers throughout the state continue to be called to go
through the selection process. The time spent reporting for
jury duty is critical time spent away from their public safety
duties, caseloads, and institutions."
2. Existing law addresses most concerns listed in support of
exemption
This bill seeks to add new categorical exemptions to jury
service in criminal matters for specified peace officers.
Notably, in place of categorical exemptions, existing law
provides remedies for many of the individuals who have sought
exemptions over the years. For example, California law provides
that an eligible person may be excused from jury service for
undue hardship, upon themselves or upon the public, as defined
by the Judicial Council. (Code Civ. Proc. Sec. 204.) To this
end, the California Rules of Court provide that an excuse for
undue hardship may be granted for various reasons, including
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that the prospective juror's services are immediately needed for
the protection of the public health and safety, and it is not
feasible to make alternative arrangements to relieve the person
of those responsibilities during the period of service as a
juror without substantially reducing essential public services.
(Cal. Rules of Court, rule 2.1008(d)(6).) Additionally,
existing law requires the Judicial Council to adopt a rule of
court requiring the trial courts to establish procedures for
jury service that gives peace officers, as defined by Section
830.5 of the Penal Code (those peace officers that would be
exempt under this bill), scheduling accommodations when
necessary. (Code Civ. Proc. Sec. 219.5; see Cal. Rules of
Court, rule 2.1004(b).)
3. Public policy against categorical exemptions from jury
service
Commonly discussed as a citizen's civic duty, jury service
fundamentally functions to "preserve[ ] the democratic element
of the law, as it guards the rights of the parties and ensures
continued acceptance of the laws by all of the people." (Green
v. United States (1958) 356 U.S. 165, 215 (Black, J.,
dissenting). It "affords ordinary citizens a valuable
opportunity to participate in a process of government, an
experience fostering, one hopes, a respect for law." (Duncan v.
Louisiana (1968) 391 U.S. 145, 187 (Harlan, J., dissenting).)
As noted by the U.S. Supreme Court, "[i]ndeed, with the
exception of voting, for most citizens the honor and privilege
of jury duty is their most significant opportunity to
participate in the democratic process." (Powers v. Ohio (1991)
499 U.S. 400, 406.)
Under California law, every citizen over 18 years of age is
eligible and qualified to be a prospective juror unless they
fail to meet certain minimal requirements. For example, they
must be a resident of the jurisdiction they are summoned to
serve, be possessed of sufficient knowledge of the English
language, and not be subject to conservatorship. Aside from
these threshold requirements that must be met for a person to be
eligible to serve on a jury, California law prohibits any person
from being excluded from eligibility for jury service. While
otherwise eligible persons could be excused by the courts on a
case-by-case basis for hardship, or be peremptorily challenged
or be challenged for cause (such as for express or implied
bias), California law prohibits the exemption of any eligible
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person from service by reason of occupation, economic status, or
race, national origin, ethnic group identification, religion,
age, sex, sexual orientation, color, genetic information, or
disability, or for any other reason.
The proponents of this bill argue that the exemption of these
peace officers, including probation officers, is appropriate,
because "given the populations these officers are required to
interact with on a daily basis, the requirement to serve on
juries, particularly for criminal trials, potentially
jeopardizes the safety of these officers."
Indeed, under Section 219 of the Code of Civil Procedure,
specified peace officers (including California Highway Patrol
officers and San Francisco Bay Area Rapid Transit District
Police officers) are prohibited from being selected for voir
dire in both civil and criminal matters, while others (such as
specified University of California officers) are prohibited from
being selected for voir dire in criminal matters only.
Nonetheless, under current law, many classes of peace officers
are not exempt from voir dire in civil or criminal cases. Those
other categories include: L.A. County safety police officers,
California Community College police officers, school district
police, municipal utility district security and county water
district security officers, local park rangers, Department of
Justice agents and investigators, Department of Corrections and
Rehabilitation investigators, and peace officers employed by
state departments including the Departments of Parks and
Recreation and Forestry and Fire Protection, and Consumer
Affairs. And while the proponents argue that it is "unthinkable
today that a local police officer, deputy sheriff, public
defender or district attorney would serve on a jury during a
criminal trial," staff notes that public defenders and district
attorneys are not categorically exempted from voir dire. Those
same individuals could be asked to reveal sensitive information
about their job, spouse, and other private information when
participating in voir dire. Moreover, insofar as the proponents
assert that the act of having to respond to a voir dire summons
takes these peace officers away from their public safety duties,
caseloads and institutions, California law already provides
remedies that address such concerns. (See Comment 2 above).
Given the inherent authority of the court and ability to excuse
prospective jurors for various reasons and that hardship
exemptions are sufficient to address the case-by-case needs of
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officers, exempting additional officers would appear to further
limit the available jury pool potentially both to the detriment
of defendants in matters who have a constitutional right to
having a jury drawn from a representative cross section of the
community, and to the courts that are charged with drawing those
pools. Staff further notes that public policy in this state
supports giving every eligible person equal opportunity to
discharge their civic duty. To this end, even if the majority
of the peace officers that this bill proposes to exclude from
jury service are ordinarily excused from service during voir
dire (either for hardship or based on a peremptory challenge or
challenge for cause), this bill would outright prohibit persons
who may desire to fulfill their civic duty from participating in
this process.
4. Opposition to the bill from Judicial Council and the
California Judges Association
In opposition to this bill, the Judicial Council of California
writes:
Statutorily exempting specific categories of persons from jury
duty reduces the number of available jurors, makes it more
difficult to select representative juries, and unfairly
increases the burden of jury service on other segments of the
population. The courts have a constitutional obligation to
ensure that jury pools are representative of the community and
that there are enough prospective jurors in the courthouse
each day to avoid having to dismiss last-day criminal trials
for lack of jurors.
Further[,] the council believes that categorical exemptions
are unnecessary because existing law and rules of court
authorize courts to grant a hardship excuse in appropriate
circumstances and to make scheduling accommodations without
requiring a court appearance. Lack of transportation,
personal obligation to provide care for another, and that the
prospective juror's services "are immediately needed for the
protection of the public health and safety" are grounds
constituting undue hardship under California Rules of Court,
rule 2.1008. While jury services requires sacrifice on the
parts of citizens, exempting certain classes of individuals on
the basis of the burden it might put on them unfairly
increases the burden on the others. (Emphasis in original.)
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Also in opposition to the bill, the California Judges
Association writes that "[m]any courts struggle already with the
challenges of having enough jurors available for prospective
jury service, and the expansion of further exemptions will
further complicate this. This is particularly true in
less-populated counties, where we understand residents may be
called as often as twice each year as prospective jurors.
Existing law and rules of court provide adequate opportunity for
scheduling accommodation or excuse where allowable. Creating
further categorical exemptions harms the diversity of the jury
pool and increases the burden on the remaining prospective-juror
community."
Support : Association of Probation Supervisors; California
Correctional Peace Officers Association; California Probation,
Parole and Correctional Association; Fraternal Order of Police,
N. California Probation Lodge 19; Los Angeles County Probation
Officers Union, AFSCME, Local 685; Madera Probation Peace
Officer Association; Monterey County Probation Association;
Orange County Employees Association; Riverside Sheriffs
Association; Sacramento County Probation Association; San
Francisco Deputy Probation Officers' Association; Teamsters
Local Union No. 856; Ventura County Professional Peace Officers'
Association; San Joaquin County Probation Officers Association;
one individual
Opposition : California Judges Association; Judicial Council
HISTORY
Source : Chief Probation Officers of California (CPOC); State
Coalition of Probation Organizations (SCOPO)
Related Pending Legislation : None Known
Prior Legislation :
SB 1133 (Anderson, 2014) would have exempted certain Department
of Fish and Game employees from jury duty in criminal and civil
matters. That bill died in this Committee.
AB 1708 (Alejo, 2014), similar to this bill, would have excluded
additional peace officers, including certain parole officers,
probation officers, deputy probation officers, board
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coordinating parole agents, correctional officers,
transportation officers of a probation department, and other
employees of the Department of Corrections and Rehabilitation,
the State Department of State Hospitals, and the Board of Parole
Hearings, from voir dire in criminal matters. This bill died in
the Assembly Public Safety Committee.
AB 1769 (Galgiani, 2007) would have exempted from voir dire in
criminal matters: members of a community college police
department, as specified, persons employed as a member of a
police department of a school district, as specified, whose
primary duty is law enforcement, and peace officers employed by
a K-12 school district or a community college district who
completed certain training. This bill was vetoed.
AB 1993 (Nakanishi, 2005) would have provided, until January 1,
2010, an eligible person who holds an active license as a
registered nurse and works at least 20 hours per week in direct
patient care services may be excused from jury service. That
bill died in the Assembly Judiciary Committee.
AB 2271 (Parra, 2004) would have exempted correctional officers
employed by the Department of Corrections from voir dire in
civil and criminal matters. This bill died in the Senate Public
Safety Committee.
AB 270 (Bates, 2003) would have exempted harbor and port police,
as specified, from voir dire in civil and criminal matters.
That bill failed passage in the Senate Public Safety Committee.
AB 1970 (Matthews, 2002) would have exempted parole officers,
probation officers, and correctional officers who are peace
officers, as specified, from jury panels sent to courtrooms for
voir dire in civil and criminal matters. That bill died in the
Senate Public Safety Committee.
SB 303 (Torlakson, Ch. 55, Stats. 2001) excluded specified Bay
Area Rapid Transit District officers from voir dire in civil and
criminal matters.
AB 2418 (Migden, Ch. 43, Stats. 2000) added sexual orientation
to the list of reasons upon which existing law prohibits a
person from being exempted from service as a trial juror. That
bill also added a new provision to the Code of Civil Procedure,
Section 231.5, that prohibits a party from using a peremptory
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challenge to remove a prospective juror on the basis of an
assumption that the prospective juror is biased merely because
he or she is a member of an identifiable group distinguished on
racial, religious, ethnic, sexual orientation, gender, or
similar grounds.
SB 801 (Poochigian, 2000) would have created an exemption from
jury duty for judges, excluding temporary judges. That bill
failed passage in this Committee.
AB 316 (Morrissey, 1997) would have exempted local agency park
rangers and Los Angeles County safety police from civil and
criminal jury duty. It also would have exempted state
university police and Department of Corrections Law Enforcement
Liaison officers from civil jury duty, in addition to their
exemption from criminal jury duty. This bill failed passage in
this Committee.
SB 2066 (Rogers, Ch. 742, Stats. 1994) added an exemption for
California State University and University of California police
from voir dire in civil and criminal matters.
AB 2577 (Wright, Ch. 324, Stats. 1992) expanded the exemption
from voir dire in criminal matters for certain peace officers
(sheriffs, police officers, municipal court marshals,
constables, inspectors and investigators of district attorneys,
and California Highway Patrol officers) to civil matters.
AB 2617 (Harris, Ch. 1245, Stats. 1998) enacted an extensive
revision of the law with respect to juries, consolidating
various provisions relative to juries in civil and criminal
causes, and revising provisions relative to the qualifications
of trial jurors, excusal from jury service for hardship, the
required appointment of a jury commissioner in each county, the
selection, compensation, and duties of jury commissioners, the
preparation of juror questionnaires, expanded facilities for
jurors, the summons of prospective jurors, the selection of jury
panels, voir dire, challenges to jurors, and the compensation of
jurors, alternate jurors, and juries of inquest. The bill also
included an exemption for certain peace officers from voir dire
in criminal matters (namely, sheriffs, police officers,
municipal court marshals, constables, inspectors and
investigators of district attorneys, and California Highway
Patrol officers).
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