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 In 1975, AB 681 (Siegler, Ch. 593, Stats. 1975) repealed those categorical exemptions and replaced them with a generic provision allowing any person to be excused from jury duty for undue hardship on themselves or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).) SB 428 (Hall) Page 2 of ? 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 SB 428 (Hall) Page 3 of ? 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 SB 428 (Hall) Page 4 of ? 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.) SB 428 (Hall) Page 5 of ? 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. SB 428 (Hall) Page 6 of ? 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 SB 428 (Hall) Page 7 of ? 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 SB 428 (Hall) Page 8 of ? 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 SB 428 (Hall) Page 9 of ? 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 SB 428 (Hall) Page 10 of ? 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.) SB 428 (Hall) Page 11 of ? 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 SB 428 (Hall) Page 12 of ? 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 SB 428 (Hall) Page 13 of ? 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). ************** SB 428 (Hall) Page 14 of ?