LAWRENCE M. ADAMS, as Jury Commissioner, etc., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; IRVING BEALE, Real Party in Interest.
L.A. No. 30215
In Bank
July 19, 1974
12 Cal. 3d 55
LAWRENCE M. ADAMS, as Jury Commissioner, etc., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; IRVING BEALE, Real Party in Interest.
Robert G. Berrey, County Counsel, and Lloyd M. Harmon, Jr., Deputy County Counsel, for Petitioner.
Evelle J. Younger, Attorney General, Edward A. Hinz, Jr., Chief Assistant Attorney General, William E. James, Assistant Attorney General, A. Wells Petersen and Jay M. Bloom, Deputy Attorneys General, as Amici Curiae on behalf of Petitioner.
Charles R. Khoury, Jr., for Respondent.
No appearance for Real Party in Interest.
OPINION
CLARK, J.-The Jury Commissioner of San Diego County seeks writ of mandate compelling respondent superior court to set aside an order declaring
A criminal defendant in respondent court challenged the jury panel, claiming the residency requirement was invalid. The trial court sustained the challenge, directing the jury commissioner to furnish a jury panel “from which no jurors have been excluded on residential grounds” other than the 30-day minimum residence requirement qualifying one to vote.2 (
We must first consider the jurisdiction of the superior court to order the jury commissioner to change his selection procedure. It is argued that since the commissioner, appearing only as a witness, was not a “party”
Jury selection is an administrative function of the court, which bears the responsibility of ascertaining if persons proposed are competent to serve. (
In considering the merits we must examine both the rights of the accused in the underlying criminal case and the interests of those who, after residing in the county less than one year, are excluded from jury service.
The accused‘s right to a fair trial by a jury of his peers is not infringed by a one-year residency requirement for jurors. (3) The United States Supreme Court in Williams v. Florida (1970) 399 U.S. 78, 100 [26 L.Ed.2d 446, 460, 90 S.Ct. 1893], explained that the jury impartiality provisions of the Sixth Amendment to the federal Constitution require the jury selection process to provide a “fair possibility for obtaining a representative cross-section of the community.” The process of selection must be structured to insure that cognizable classes of citizens are not systematically excluded from jury service. (Peters v. Kiff (1972) 407 U.S. 493, 500 [33 L.Ed.2d 83, 92, 92 S.Ct. 2163]; People v. Jones (1973) 9 Cal.3d 546, 549-550 [108 Cal.Rptr. 345, 510 P.2d 705].)
Selection from a cross-section of the community insures that prospective jurors will be chosen by court officials without systematic and intentional exclusion of economic, sexual, social, religious, racial, political, or geographical groups. (Thiel v. Southern Pacific Co. (1946) 328 U.S. 217, 220 [90 L.Ed. 1181, 1184-1185, 66 S.Ct. 984, 166 A.L.R. 1412]; People v. McDowell (1972) 27 Cal.App.3d 864, 872-873 [104 Cal.Rptr. 181].) (4) While exclusion of other groups might also be improper (Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770]), it is apparent that, before exclusion may be held improper, there must be a common thread running through the excluded group-a basic similarity of attitudes, ideas or experience among its members so that the exclusion prevents juries from reflecting a cross-section of the community.
Measured by this standard, the potential jurors here excluded do not constitute a cognizable class. The group‘s membership-cutting across economic, social, religious, and geographical lines-changes day by day, creating a lack of real commonality of interest among the newly migrated. Newcomers as a class have no more (and appear to have less) legally significant commonality than 18 to 20-year-olds, an incognizable class. (United States v. Olson (8th Cir. 1973) 473 F.2d 686, 688; People v. Hoiland (1971) 22 Cal.App.3d 530, 533-540 [99 Cal.Rptr. 523].)
We are satisfied the defendant‘s right to an impartial jury is not impaired by the one-year residency requirement.
In considering the contention that those excluded by section 198 are denied equal protection of the law, we must first determine the appropriate standard for reviewing the statutory classification. A requirement of strict
Because we have determined newcomers are not a cognizable class, the classification is not analogous to those based on race or lineage, and is therefore not suspect. (See, e.g., McLaughlin v. Florida (1964) 379 U.S. 184, 192 [13 L.Ed.2d 222, 228-229, 85 S.Ct. 283]; Castro v. State of California (1970) 2 Cal.3d 223, 229 [85 Cal.Rptr. 20, 466 P.2d 244].)
The fundamental right furnishing a basis for invoking strict scrutiny must be explicitly or implicitly guaranteed by the Constitution. (San Antonio School District v. Rodriguez (1973) 411 U.S. 1, 33-34 [36 L.Ed.2d 16, 42-44, 93 S.Ct. 1278].) Rights held fundamental include privacy (Griswold v. Connecticut (1965) 381 U.S. 479 [14 L.Ed.2d 510, 85 S.Ct. 1678]), voting (Harper v. Virginia Bd. of Elections (1966) 383 U.S. 663, 667 [16 L.Ed.2d 169, 172-173, 86 S.Ct. 1079]), and interstate travel (Shapiro v. Thompson (1969) 394 U.S. 618 [22 L.Ed.2d 600, 89 S.Ct. 1322]). However, such important interests as adequate housing (Lindsey v. Normet (1972) 405 U.S. 56, 74 [31 L.Ed.2d 36, 50-51, 92 S.Ct. 862]) and education (San Antonio School District v. Rodriguez, supra, 411 U.S. 1, 34-39 [36 L.Ed.2d 16, 43-47]) have been held not fundamental.
While trial by jury is constitutionally implanted in our system of justice, an individual‘s interest in serving on a jury cannot be held a fundamental right. The guarantee of the Sixth Amendment is primarily for the benefit of the litigant-not persons seeking service on the jury; and even though lawfully qualified, a citizen may not demand to serve on a jury. At most, the citizen is entitled to be considered for jury service. His interest in becoming a juror is clearly secondary to the interests of the litigants in securing an impartial jury, as shown by the traditional exclusion of prospective jurors for cause or upon peremptory challenge. Jury service is commonly viewed more as a combination of duty and privilege than as a right, sanctions being imposed for failure to appear. (
It is also argued that the durational residency requirement for jurors impermissibly restricts an individual‘s right to travel. The Supreme Court cases holding a classification unconstitutional because it impinges on the
There is neither evidence nor reason to believe that one year‘s exclusion from jury duty is a factor materially affecting a person‘s decision to migrate, and any penalizing effect of the durational residency requirement is inconsequential. Thus, the requirement has insufficient effect on the right to travel to compel strict judicial scrutiny.
The strict test being inapplicable, the residency requirement for jurors must be upheld if there is any rational relationship between the requirement and some legitimate state objective. (7) The Legislature is presumed to have acted constitutionally, and statutory classifications may be set aside only if no ground can be conceived to justify them, and they are wholly irrelevant to the achievement of the state‘s objective. (McDonald v. Board of Election (1969) 394 U.S. 802, 809 [22 L.Ed.2d 739, 745-746, 89 S.Ct. 1404]; McGowan v. Maryland (1961) 366 U.S. 420, 425-426 [6 L.Ed.2d 393, 398-399, 81 S.Ct. 1101].)
The significance of jurors’ residency is established by the Sixth Amendment “vicinage” requirement that jurors be chosen from the district where the crime was committed. (People v. Jones, supra, 9 Cal.3d 546, 549 et seq.) The Ninth Circuit Court of Appeals pointed out in upholding the one-year residency requirement for federal jurors (
Let a peremptory of mandate issue as prayed.
Wright, C. J., McComb, and Burke, J., concurred.
MOSK, J.-I dissent.
The provision of section 198 prescribing a one-year durational residence requirement before a citizen may serve as a juror is violative of both the equal protection clause of the Fourteenth Amendment to the United States Constitution and article I, section 21, of the California Constitution.
At the threshold I observe that defendant (here the real party in interest) made timely objection. Before the jury was selected in respondent court he challenged the jury panel, attacking the constitutionality of the one-year residence requirement for jury service established by Code of Civil Procedure section 198. The testimony of the Jury Commissioner of San Diego (petitioner herein) establishes the procedure presently followed in setting up the panel of petit jurors. The names of all registered voters are secured from the registrar of voters; from this list, in order to limit the volume of names to be processed and still retain the same presumptive community cross-section contained in the list as a whole, the jury commissioner draws every fourteenth name as an initial supply source.1
Questionnaires are sent to the persons thus randomly selected, one question of which inquires into the length of the voter‘s residence in the county. The names of all voters with less than one year‘s residence are withdrawn from the pool but not discarded; their cards are flagged and set aside in a separate file to be restored to pool when the residence requirement has been met. The result of this procedure is that at no time during the life of any jury panel will it contain the name of any person who has not been a county resident for at least one year.
The majority concede that selection of juries is an administrative function of the courts. (
There being no problem of jurisdiction of the trial court to act, the fundamental issue is whether the trial court was correct in its ruling on the merits. I am convinced its position was sound and, indeed, compelled by constitutional analysis.
As observed in our recent consideration of residence requirements, such durational restrictions face an uncertain future in the law of this state. In Thompson v. Mellon (1973) supra, 9 Cal.3d 96, we rejected the concept that new residents have inadequate knowledge and are less qualified to assume a role in the affairs of their newly selected home than older residents, citing Dunn v. Blumstein (1972) 405 U.S. 330 [31 L.Ed.2d 274, 92 S.Ct. 995], and Young v. Gnoss (1972) supra, 7 Cal.3d 18. We therefore held that lengthy durational residence requirements for candidacy for public office are unnecessary to further the state‘s interest in having knowledgeable candidates.
The right to trial by jury necessarily contemplates an impartial jury, drawn from a source which produces a “fair possibility for obtaining a representative cross-section of the community.” (Peters v. Kiff (1972) 407 U.S. 493, 500 [33 L.Ed.2d 83, 92, 92 S.Ct. 2163]; Thiel v. Southern Pacific Co. (1946) 328 U.S. 217, 220 [90 L.Ed. 1181, 1184-1185, 66 S.Ct. 984, 166 A.L.R. 1412]; People v. Jones (1973) 9 Cal.3d 546, 549 [108 Cal.Rptr. 345, 510 P.2d 705]; People v. White (1954) 43 Cal.2d 740, 754 [278 P.2d 9].) So long as the source from which juries are empanelled reasonably reflects a cross-section of the population suitable for that civic duty, the states are free to prescribe relevant qualifications for their jurors. (Carter v. Jury Commission (1970) supra, 396 U.S. 320, 332-333 [24 L.Ed.2d 549, 558-560].) The prescribed qualifications must, however, reasonably relate to the efficiency and competence of the jurors, and must be equally administered. (Brown v. Allen (1953) 344 U.S. 443, 473 [97 L.Ed. 469, 497-498, 73 S.Ct. 397].)
The majority maintain that the constitutional limitation against unreasonable classifications in the selection of a jury panel does not extend to residence because the excluded group does not comprise a distinct, cognizable class as defined in Hernandez v. Texas (1953) 347 U.S. 475, 478 [98 L.Ed. 866, 870, 74 S.Ct. 667]. The contention of petitioner is that even if all those who have residence of less than one year are excluded, the remaining jury panel would be, as a group, a representative cross-section of the community, since those excluded on the basis of residence are composed of the same cross-section characteristics.3
In Peters the Supreme Court speaks to this precise point: “When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that their exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.” (407 U.S. at pp. 503-504 [33 L.Ed.2d at pp. 94-95].) Similar observations were made by the high court in rejecting the exclusion of women from jury service: “It is not enough to say that women when sitting as jurors neither act nor tend to act as a class . . . to insulate the courtroom from either [sex] may not in a given case make an iota of difference. Yet a flavor, a distinct quality is lost if either sex is excluded.” (Ballard v. United States (1946) 329 U.S. 187, 193-194 [91 L.Ed. 181, 186, 67 S.Ct. 261].)
Both opinions, the majority and this dissent, discuss a group; thus, adapting the classic apothegm of Descartes,4 I find it obvious that the group exists, and is identifiable and ascertainable. Any further determination of the “cognizableness” of the class is unnecessary. Thus I conclude that, in denying jury service to a cognizable class, section 198 operates to deprive jury panels of a cross-section of the community. I would disapprove People v. Hoiland (1971) 22 Cal.App.3d 530 [99 Cal.Rptr. 523], to the extent it is inconsistent with the views expressed herein.
The resultant injury from application of the statute is not limited to a defendant on trial, but is equally disabling to the jury system as a whole and to the excluded class. Jury service affords a singular opportunity for the
Arbitrary exclusion of an otherwise eligible group, then, is a denial of equal protection to members of that group, in that they are denied equal opportunity to serve as jurors. Whether jury service be characterized as a right, a privilege, or a duty, a state may no more extend it to some of its citizens and deny it to others arbitrarily or whimsically, than it may invidiously discriminate in the offering and withholding of the elective franchise. (Carter v. Jury Commission (1970) supra, 396 U.S. 320, 330 [24 L.Ed.2d 549, 557-558].)
It is urged, however, that there is a rational basis for requiring a one-year nexus between a juror and the community whose “sense of justice the jury as a whole is expected to reflect.” (United States v. Arnett (D.Mass. 1970) 342 F.Supp. 1255, 1261; United States v. Duncan (9th Cir. 1972) 456 F.2d 1401, 1406, vacated on other grounds (1973) 409 U.S. 814 [34 L.Ed.2d 72, 93 S.Ct. 161].) In this argument petitioner asserts an interest in assuring a significant connection in terms of time between a juror and the community from which he is selected.
The requirement of a nexus of one year‘s residence was rejected in Young for the right to vote. Mere duration of residence seems no more relevant to the ability to comprehend and judge the issues of a typical trial than to the ability to analyze and judge the issues of a typical election. Although residence in the community is a critical consideration in determining compliance with the vicinage requirement of the Sixth Amendment (People v. Jones (1973) supra, 9 Cal.3d 546), the duration of residence does not appear rationally related to the only legitimate interest of the state in establishing juror qualifications, i.e., the assurance of obtaining capable jurors.
Under our trial system the jury is to determine the case exclusively on
We reasoned in Thompson that the election process is adequate to “weed out incompetent, unknowledgeable candidates insensitive to, and unaware of, the best needs of the community” and therefore no need exists to resort to artificial residence barriers. (9 Cal.3d at p. 105.) The same rationale applies to the selection of jurors, since the incompetent and unknowledgeable can be weeded out through voir dire examination. Indeed, that is the function of voir dire. As the Supreme Court stated in Thiel v. Southern Pacific Co., supra, 328 U.S. at page 220 [90 L.Ed. at page 1185], a case originating in California: “Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system. To disregard it is to open the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury.” The suggestion that a residence requirement more onerous than that required to be an elector tends to achieve a more qualified jury panel not only demeans the election process but overlooks the primary prerequisite of a cross-section, i.e., that it be representative of the entire community, not merely of the longer settled section of the community. Petitioner‘s contention that persons settled in the community can function better as jurors than transients passing through is a straw man, and “appears to confuse a bona fide residence requirement with a durational residence requirement.” (Dunn v. Blumstein (1972) supra, 405 U.S. 330, 354 [31 L.Ed.2d 274, 291].)
The state must not only establish a legitimate purpose in creating the classification but must show that the distinction drawn by the statute is necessary to further the asserted interest. (Sail‘er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 17 [95 Cal.Rptr. 329, 485 P.2d 529, 46 A.L.R.3d 351].) The decision to register to vote-thus bringing the citizen into the jury commissioner‘s files-would appear to demonstrate sufficient permanency and concern for the community. No persuasive justification appears for the requirements for jury selection to be greater than those for the right
Finally, it is obvious the statutory classification serves no interest of administrative convenience. On the contrary, since the basic source utilized is the voter registration list, the more restrictive requirement serves as an additional, onerous and unnecessary bureaucratic burden on the administration of the jury system.
For the foregoing reasons I conclude that the one-year residence requirement for jury service violates the equal protection clause of both the federal and state Constitutions, and that the 30-day residence requirement for registering to vote is sufficient to establish jury service eligibility. I would deny the writ of mandate.
Tobriner, J., and Sullivan, J., concurred.