BILL ANALYSIS �
AB 1401
Page 1
GOVERNOR'S VETO
AB 1401 (Judiciary Committee)
As Amended June 10, 2013
2/3 vote
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| |45-26|(April 25, |SENATE: |25-11|(August 19, |
| | |2013) | | |2013) |
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|ASSEMBLY: | | | | | |
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|ASSEMBLY: |48-28|(August 22, | | | |
| | |2013) | | | |
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Original Committee Reference: JUD.
SUMMARY : Expands jury duty obligations to lawfully present
immigrants. Specifically, this bill provides that persons who
are lawfully present immigrants and are not otherwise
disqualified are eligible to be called as prospective trial
jurors.
The Senate amendments narrow the scope of the bill to one small
class of legal permanent immigrants.
FISCAL EFFECT : None
COMMENTS : Under current law, jury duty is required only for
United States (U.S.) citizens. All lawful immigrants, no matter
their duration of residence, are automatically excused from jury
duty, regardless of their capacity or willingness to serve.
Many immigrants, of course, reside for many years before
becoming citizens. Former Governor Schwarzenegger, for example,
AB 1401
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came to the U.S. in 1968 but did not become a naturalized
citizen until 1983. This bill would expand the jury obligation
to lawful permanent immigrants, provided that they otherwise
satisfy all the criteria for eligibility, including domicile in
California, residence in the jurisdiction, and English language
proficiency.
Lawful immigrants are entitled to be parties and witnesses in
court proceedings, may represent parties as attorneys, serve as
judges, and be employed in every other capacity in the courts.
The only role from which they are excluded is juror. This bill
would eliminate that automatic exclusion, which is thought to be
unrelated to the qualities and skills needed for successful
performance of jury duty.
Of all the democratizing forces of the United States, de
Tocqueville was particularly impressed with jury duty: "The
civil jury, is a powerful force in society; its influence
extends well beyond the individual case that is being decided.
Juries, especially civil juries, instill some of the habits of
the judicial mind into every citizen, and just those habits are
the very best way of preparing people to be free. It spreads
respect for the courts' decisions and for the idea of right
throughout all classes. Juries teach men equity in practice.
Each man, when judging his neighbor, thinks that he may be
judged himself." (Alexis de Tocqueville, Democracy in America,
270-76 (1850).)
Those thought fit to serve on juries have varied over time.
California law originally excluded all civil officers of the
state, attorneys, ministers of the gospel and priests, teachers,
practicing physicians, officers of a charitable institution
created under the laws of the state, and captains of steamers or
boats. Of course, African Americans, Asians and others who were
not eligible to vote were also once disqualified from jury
service. Indeed, the California Supreme Court held that a
person of Chinese national origin was even unqualified to
testify as a witness at trial, fearing that "the same rule which
would admit them to testify would admit them to all the equal
rights of citizenship, and we might soon see them at the polls,
in the jury box, upon the bench and in our legislative halls."
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(People v. Hall (1854) 4 Cal. 399.)
Persons over the age of 60 were originally ineligible, as were
women until 1911. (See Ex parte Mana (1918) 178 Cal. 213.)
Even then, change came slowly. See People v. Lensen (1917) 34
Cal. App. 336 where six years after revision of the state
constitution in 1911 the court awarded a new trial to a
defendant convicted by a jury composed of 11 men and 8 women,
because at the time of indictment Section 192 of the Code of
Civil Procedure read "a grand jury is a body of men," the court
noting that "from the earliest period in the history of common
law, juries, have been composed exclusively of men."
Jury duty is a societal obligation that many see as an
inconvenience, if not a burden, and it is well known that courts
regularly struggle to find enough prospective jurors to meet
their needs. The Legislature has regularly entertained
proposals to exempt certain groups from jury service on the
basis of hardship, as well as proposals to further penalize
those who improperly seek to avoid their obligation. This is a
longstanding problem. Ten years ago the Assembly Judiciary
Committee observed, "Though the Judicial Council does not
maintain an updated list of jury service delinquency rates
across the state, numerous articles have noted over the years
the very high rates of non-participation. In addition, the
compensation paid to those who fulfill their jury service
obligations remains extremely low." (Assembly Judiciary
Committee report on AB 1180 (Harman) of 2003.)
The limitation of jury duty to citizens is a product of statute,
not of the Constitution which does not specify or restrict the
qualifications of jurors. While the exclusion of immigrants
from jury duty is constitutionally permissible (Rubio v.
Superior Court of San Joaquin County (1979) 24 Cal. 3d 93), it
is not constitutionally mandated. Jury lists are drawn in part
from Department of Motor Vehicles records, which include many
non-citizens. Prospective jurors are not required to produce
evidence of citizenship, and immigrants do periodically serve on
juries - if only because they do not exclude themselves and are
not disqualified by a party. The participation of immigrants on
a jury is permissible and does not invalidate the proceedings.
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"Alienage of a juror is cause of challenge, but is not per se
sufficient to set aside a verdict, and this whether the
complaining party knew of the fact or not. ? The
disqualification of alienage is a cause of challenge propter
defectum, on account of personal objection and, if voluntarily,
or through negligence, or want of knowledge, such objection
fails to be insisted on, the conclusion that the judgment is
thereby invalidated is wholly inadmissible. (Kohl v. Lehlback,
160 U.S. 293, 302 (1895)."
While the exclusion of immigrants from juries may be
constitutionally acceptable, many have noted that
"[d]iscrimination against any group makes participation less
universal and detracts from the jury as a democratizing
institution." (See Rubio v. Superior Court of San Joaquin
County (1979) 24 Cal. 3d 93, 106. (Torbiner, dissent, quoting
Adams v. Superior Court (1974) 12 Cal. 3d 55, 67 (Mosk,
dissent).)
Unquestionably, just as citizenship does not automatically
correlate with knowledge of the laws or success as a juror,
non-citizens may perform jury service appropriately. Individual
qualifications would of course continue to be determined by voir
dire, and judges would continue to exercise supervision and
control of juries that include non-citizen jurors as they do
now. This bill would simply substitute individual decisions for
broad assumptions. As the U.S. Supreme Court has observed,
"Jury competence is an individual rather than a group or class
matter.... To disregard it is to open the door to class
distinctions and discriminations which are abhorrent to the
democratic ideals of trial by jury." (Thiel v. Southern Pac.
Co., (1946) 328 U.S. 217, 220.)
GOVERNOR'S VETO MESSAGE :
"Jury service, like voting, is quintessentially a prerogative
and responsibility of citizenship. This bill would permit
lawful permanent residents who are not citizens to serve on a
jury. I don't think that's right."
AB 1401
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Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334
FN: 0002886