*1 differentiation, assigned phrase can I strike an element another be “or class, felony prescribed same so that sentenc- attempts to cause” from section 18-3- same, ing ranges violating without are the 203(l)(b), which would reduce the second de- protection.4 majority no equal The discovers gree assault convictions that are based on I equal protection defect such a scheme. attempt from class felonies class 5 felo- necessary to do not find it reach this issue. operation nies of section remedy assuming Even that the selected attempt I criminal statute. would then re- sufficient, majority constitutionally mand the case to the trial court with di- adopt I would not it. In order to select a rections resentence the defendant within just remedy that achieves a and reasonable felony range the class 5 on each of his two result, there should be differentiation be- degree second assault convictions that are penalties tween the for these two crimes attempt. Accordingly, respectful- based on I degree commensurate in some with the dif- ly majority opinion. dissent to the severity in the of the ferences intended and attempted bodily injury that is fea- the sole KIRSHBAUM, JJ., join ERICKSON and Smith, distinguishing ture them. See 852 in this dissent. (differences sentencing P.2d at 422 classifi- rationally
cations for crimes must be based
upon variety proscribed); People of evil Torres, (Colo.1993)(clas- 911,
v. 848 P.2d
sifications of under criminal law arbitrary); must be. reasonable and not Peo- CERRONE, Petitioner, John (Colo.1990) Fuller, ple v. 791 P.2d v. (statutory classifications crimes must be The PEOPLE of the State of based on substantial differences and reason- Colorado, Respondent. ably purposes legislation); related to (1986) (Colorado 18-l-102(l)(c), § 8B C.R.S. GOETZ, Petitioner, Lawrence Criminal Code is to be construed differ- “[t]o grounds entiate on reasonable between seri- offenses, prescribe penal- ous and minor and PEOPLE State of proportionate Colorado, Respondent. ties which are to the serious- offenses-”). 2^4-201(l)(c), § ness Cf. 94SC150, Nos. 94SC351. (1980) (in enacting IB it is statute Colorado, Supreme Court of just that a assumed and reasonable result is En Banc. intended); 2-4-203(l)(e), § IB C.R.S. (in statute, construing ambiguous an a court 30, 1995. June consequences particu- consider the of a (Goetz) Rehearing July Denied 1995. construction). lar (Cerrone) Rehearing Aug. Denied 1995. legislature’s In order to effectuate the bodily
clear differentiation between serious
injury bodily injury just and and to effect a result reasonable consistent with (Colo. Therefore, People, ciency. In Smith v. 852 P.2d I do not ascribe to Smith the 1993), sentencing provision majority. maj. we struck significance down same as does the See requiring intentionally an enhanced sentence for op. at 41. causing bodily injury intentionally but not for Likewise, Weller, People causing bodily injury, classifying serious (Colo. 1984), upheld 1082-83 we 18-3- both offenses as class 4 felonies. We did not 203(l)(b) against equal protection attack. sufficiency address the constitutional of the statu violation, Finding equal protection we no tory provisions remaining striking the after en remedy. pro required adopt equal provision, simply hancement resentencing. but remanded for case, however, Smith, therefore, attack tection dispositive is not remedy successful and the issue is the to be equal protection sufficiency of the scheme, of such a Contrary majority, adopted. I find presented concerning do not and it no issue resolving ques provisions Weller to be of assistance in this selection between alternate for sever maj. op. ance in to maintain suffi tion. at 41-42. order constitutional See *3 MaeFarlane, Westminster, CO,
Neil for petitioner John Cerrone. Henderson, Denver, CO, peti-
James A. for tioner Lawrence Goetz. Norton, Gen., Atty. A. Stephen
Gale K. ErkenBrack, Gen., Deputy Atty. Chief Timo- Gen., thy Tymkovich, M. Sol. John Daniel Gen., Dailey, Deputy Atty. Robert Mark Russel, Gen., Atty. First Asst. P. Catherine Adkisson, Gen., Atty. Asst. Crim. Enforce- Section, Denver, CO, ment respondent. for Opinion Justice ERICKSON delivered the of the Court. granted certiorari
We and consolidated for Cerrone, argument People and decision (Cerrone III) (Colo.App.1993) P.2d 143 Goetz, People v. (Colo.App. No. 90CA0514 1994) (not Apr. publication) selected (Goetz II).1 III, In Cerrone the court of appeals found the trial court did not deliber- ately persons from exclude the 1985-86 Colo- grand jury rado state on the basis of econom- hourly ic status and held “the use of trying earner status as one factor in impanel grand consistently who would during attend the scheduled sessions year was not error.” Cerrone appeals adopted at 147. The court of reasoning same II. In Goetz contrast to appeals analysis, court we conclude that the state’s asserted reasons for exclud- ing hourly wage inherently earners dis- are criminatory and violate the mandate of sec- (1987).2 13-71-103, hold, tion 6A C.R.S. We "[wjhether Although appeals applied 1. the cases were consolidated for oral the court of the cor- decision, argument and the issues in each case legal concluding rect that there was standard Cerrone, differently. granted are framed certiorari to review the issue of grand jury we improper against wage no discrimination earners "[wjhether grand jury in the selection of the statewide selection of who were well indicted Goetz.” hourly wage educated and the exclusion of earn- 13-71-102, ers violated section or 6A C.R.S. provides citizen "[a] Section 13-71-103 Goetz, (1987)." 6A C.R.S. we excluded from service in this shall not be granted certiorari to review the issue of however, (Colo.1993) (Cerrone require II), that this violation does not we reversed the defendants’ convictions be over- I. We concluded “that the trial judgments turned. We therefore affirm the court did not err when it ... found that the appeals, subscribing of the court of while defendants did not sustain their burden of reasoning proving purposeful judgments. that led to those racial discrimination un-
der the Fourteenth Amendment.” Id. at I 193-94. Both cases were remanded to the appeals court of remaining to address the History Procedural appeal, issues raised on including allega- (defen- petitioners, Cerrone and Goetz tions of se- *4 dants) were indicted the 1985-86 state lection based on economic status. See id. at grand jury.3 The defendants filed several 194. pre-trial challenging composition motions the In Cerrone (Colo.App. P.2d 143 grand jury. Following hearings, those 1993), appeals the court of upheld Cerrone’s challenges rejected by were the trial court. conviction. The court during found that the The defendants’ cases were severed for trial. grand jury of the state there was no Each defendant was convicted of one count of discrimination on the basis of economic sta pandering and several violations of the Colo- tus. panel adopted The Goetz II the reason Organized rado sep- Crime Control Act. On ing of III and affirmed Goetz’ con appeals, arate each defendant raised various victions. Goetz No. (Colo.App. 90CA0514 issues, including alleged Fourteenth 1994) (not Apr. publication). selected for equal protection Amendment violation based judgments The should be affirmed in both on racial discrimination in the selection of the although cases for different reasons than ar 1985-86 state ticulated the appeals. court of Cerrone, In People v. 829 P.2d (Cerrone (Colo.App.1991) I), the ap- court of II peals found “there was no evidence from Regarding which the trial court Facts Alleged could conclude that the Discrimination showing of discrimination Based had been rebut- On Economic Status ted.” The court reversed Cerrone’s convic- The selection of the grand 1985-86 state tions and did not address the other issues was January initiated on when appeal. later, raised on Id. Several months Attorney the Colorado petitioned General the appeals the court of reversed Goetz’ convic- Judge Chief of the Denver District Court for Goetz, tion People based on Cerrone I. impaneling an order grand jury.4 a state 1992) (not No. (Colo.App. 90CA0514 Feb. judge granted The chief petition and (Goetz I). publication) selected for ordered that the 1985-86 state appealed The state both decisions to this jurors consist of twelve to be selected from court, joined which argument Denver, the cases for Adams, the counties of Arapahoe, opinion. Cerrone, and In People Boulder, and Jefferson.5 The state court race, color, sex, religion, on account of process 5.The in Colorado for a state origin, national or grand economic status." partly by is determined statute and partly by responsible those who are under the 3. Cerrone was indicted on five counts of violat- carrying process. statute for out the selection ing Act, Organized the Colorado Crime Control statute, According process begins 18-17-104, (1986), § 8B C.R.S. one count of attorney general "[w]hen the deems it to be in 18-7-206, pimping, (1986), § 8B C.R.S. and one public grand interest to convene a 18-7-203, pandering, § count of 8B C.R.S. jurisdiction extending beyond has the boundaries (1986). Goetz was indicted on three counts of 13-73-101, any single county_” § 6A violating Organized the Colorado Crime Control attorney general "may then Act, 18-17-104, (1986), § 8B C.R.S. one count of petition judge any the chief district court for 18-7-206, pimping, (1986), 8B C.R.S. and one ” impanel grand jury].... [to an order a state pandering, § count of 8B C.R.S. judge may grant Id. petition The chief “for good cause shown....” Id. Many 4. judge grants these facts also be petition, found in Cer- If the chief rone II. court administrator is directed compiled prospective office a list of 375 March 15. A small number of administrator’s jurors, question- failed to return seventy-five from who their prospective naires also were 15. The March specified five counties each of the judge fill chief asked each of them to out a judge. prospective Each of the 375 chief questionnaire subsequently at that time and grand jurors ap- was a summons to mailed excused all but one of them. This meant court, pear in each and was mailed “Juror original pool prospective ju- that the of 375 Questionnaire” that she Selection he or forty-two rors had been narrowed down to fill out court instructed to and return to the purpose impanel- for the of oral voir dire and immediately. questionnaire asked about ment on March age occupation family of immediate juror living prospective members challenged The defendants have not prospective had close whether original pool manner in which the of 375 practicing criminal law or Instead, friends relatives prospective was selected. employed in Addi- law enforcement work. claim that of low defendants tionally, questionnaire stated: “The from the status excluded veni- Jury generally day per forty-two prospective jurors full Grand meets one re of chosen to appear impanelment year. for a made for oral voir dire on the week Allowances will be *5 illnesses, September vacations, date. On 26 and October for and essential business hearings the trial court conducted any trips. you problems, including Do motions, challenged, the defendants’ which problems, health would interfere _ among things, persons other the exclusion of your serving Jury? on the Grand Yes No_ of low economic status from the venire. yes, please If describe.” Testimony hearings from these established questionnaires of the 375 Most were re- judge that the chief relied on a coded num- during February turned to the court bering system. The code numbers corre- early ques- March. Based on to answers sponded postponement to reasons for or ex- deputy tionnaires and with advice from a grand jury example, cusal from service. For attorney general and several assistant attor- questionnaire if a was num- marked with the neys general, judge on a chief settled list “12,” it ber meant there was a medical forty-one jurors prospective of whom he re- excluding prospective juror, reason for 15,1985, quired appear in to court on March pro- while the number “8” meant that day for a of oral voir of dire the close juror spective he or was excluded because grand which the twelve-member 1985-86 longer The she no resided Colorado. impaneled. persons was to be Those signified unspecified “11” number “other” questionnaires who returned to the court but reasons for excusal from the venire. appear dire who were not chosen for voir impanelment sixty-eight questionnaires date received letters Approximately notifying they (category the court them that were “11” from were marked with the number jurors). group sixty-eight, ap- longer required appear no in court on 11 Of that of grand following discharged prepare prospective unless sooner [to] list of state jurors existing jury drawn from lists of the judge. the chief preparing pro- several counties. spective In the list of 6A C.R.S. grand jurors, ad- the state court jurors ministrator need not include names of Supreme 6. The United States Court has used the state, every county from within the but he group prospective to denote a term "venire” of jurors county select counties near the grand jurors, and we shall do the same. See judge requesting pre- the list which the chief Partida, Castaneda v. judge granting sides. The chief impanel the order shall 1272, 1281, (1977); Whitus v. 498 grand jury from the list com- Georgia, piled the state court administrator. A state controversy in L.Ed.2d 599 Because the grand jury composed twelve shall be or forty-two group this case is the selection of the members, twenly-three ... but not than more appear who were chosen to for oral voir dire on grand one-fourth of the members of the state date, impanelment and not the selection of county. any shall be residents of one The original pool of we shall refer to the members of the state shall be select- group forty-two as the "venire.” judge ed the chief with the advice of attorney general year and shall serve for one The they be excluded. ques- those recommended fifty answered “No” proximately including judge chief for any problems, then went back to the you have stacks tion “Do grand interfere with problems, that would the final decision. the selection health Jury?” One de- your serving jurors, deputy attorney general on the Grand testified category 11 that no testified significant fense witness consideration was that the most education was high school juror’s ability without at- prospective grand venire. The same part to be sessions, allowed occur tend category also testified witness forty weeks. every Friday approximately earners to be laborers tended attorney general stated the staff deputy as those selected were not as well educated ability to persons who had the looked for to the venire. legal complex cases. understand by another testimony was offered Further attorney general deputy testified that witness, qualified expert an who defense such factors as the selection staff considered The sta- in labor economics and statistics. potential education level and whether category 11 compared the tistician grand juror hourly wage earner. found that 57% of the with the venire. She rarely lacked a They selected someone who college college graduates, while venire were high preferred education and school only category graduates constituted 12% understanding accounting, finan- with an had jurors. percent of the venire Zero cial, deputy attor- or medical issues. high compared than a school education less view, ney general’s additional education category group. The sta- to 20% the grand juror help a understand the concluded that the venire members tistician issues that came before the significantly better educated than cate- jurors. opined also *6 gory 11 The statistician deputy attorney general acknowledged The “very high correlation be- that there is a persons that were excluded from the venire Concluding and education.” tween income grand jury duty not be who stated that different,” “distinctly groups were the two However, attorney hardship. deputy with a 99.9% confi- the statistician stated many persons general stated that who systematic pro- dence level that “a questionnaire hardship no on the claimed difference_” ... On De- cess caused the during they discover oral voir dire that trial court issued a writ- cember problems preventing serving from on them finding ten order that the defendants estab- grand jury. Testimony showed that the prima facie case of discrimination lished a anticipate these occur- selection staff tries to “race, origin national or economic based rences, they poten- consider whether the so status.” hourly wage grand tial is an earner. 1987, 80, January to rebut the defen- On Hourly wage earner status was a factor the dants’ facie case selection staff used to determine whether status, as on economic the state called based duty hardship. would create a attorney general deputy and one witnesses trial court found: The attorney general who advised the assistant selecting judge chief in the 1985-86 state is a both- question The economic status one_ The state also called two other problem of ersome eco- [T]he attorneys general who assisted the assistant and economic status nomic status what ju- in judge chief statewide under our statute has never been means years.7 primary The state’s ries other By making clearly a deliber- articulated. testimony describing response consisted of get people attempt ate certain kinds of “screening process.” jury, persons the result was may not have been included. lower income attorney general testified that deputy However, going the Court is to find attorney general’s staff di- members that ... there it relates to economic status questionnaires into two stacks: vided the persons effort to exclude they for the venire and was no deliberate those recommended judge testify. did not 7. The chief and in A
on the basis of their economic status from the information was avail- fact We note that section 13-71-103 must be jury questionnaire forms it is able on the 13-71-102, light read of section also in readily apparent not what the economic here, during effect the time at issue status was. states: policy persons It is the of this state that all extrapolated eco- While the statistician jury selected for service shall be selected education, nomic status from the amount of at random from a fair cross section of the particular extrapolations those court, population of the area served certainly necessarily facts were known qualified and that all citizens shall have the who made the recommenda- opportunity provi- in accordance with the Judge made the tions or to the who selec- sions of this article to be considered for tion at the time that the selections were obligation service this state and an made. to serve as when summoned for that appeals purpose. court of affirmed trial findings con court’s and affirmed Cerrone’s 13-71-102, 6A sec- While P.2d viction. See Cerrone policy underly- tion 13-71-102 articulates the (Colo.App.1993); see also Goetz No. ing Jury article the “Uniform Selection 1994) (not Apr. (Colo.App. 90CA0514 se (UJSSA), Act” it neither defines Service publication) (adopting lected for reason “economic status” nor contains sufficient di- ing affirming III and con Goetz’ proper rection to establish a test for deter- viction). mining a violation of section 13-71-103.
However,
statutes,
these
read to
gether, support
principles
Ill
well-established
Jury
duty
service.
service is both
(1987), in
Section
6A C.R.S.
privilege
citizenship.
Thiel
Southern
during
effect
the time
issue
Co.,
Poc.
987-
case,8 provided that
citizen shall not be
“[a]
partic
prevent its use or be excluded service addition, jury provides service individuals basis of invidious criteria. opportunity participate in the civic
with an to Ohio, v. nation. See Powers our 499 life of The defendants claim the exclusion 113 U.S. jury of should be earners service (1991) (“[Wjith exception 411 of L.Ed.2d (1) grounds: right under evaluated two privi for most honor and voting, citizens the to a selected from a fair cross-section significant lege jury duty is their most community provided by the Sixth opportunity participate in the democratic (2) Amendment; and its UJSSA during jury Discrimination selec process.”). counterpart, Jury the Federal Act Selection important tion undermines these values. (FJSA). The claim that the test defendants Moreover, deprives discrimination individual establishing for a violation these two under system right of a defendants central our tests, grounds is similar.9 Neither of these by justice, right judged to be maintain, requires showing defendants Virginia, Strauder West peers. their discriminatory purpose by of a the state. 303, 308, 25 L.Ed. 664 Batson three-part claims the test II should adopted this court in Assembly The General enacted sec any apply implicates claim either qualified all tion 13-71-103 to ensure that section 13-71-10310 or its constitutional und opportunity have the to serve citizens erpinnings.11 analysis, Under that the de jurors. legislature No doubt the intended to pur fendants must establish the existence preserve participatory the values of democra poseful cy public and the confidence the state. We system ensuring agree individuals state. article, indictment, information, quash Sixth Amendment of United States
9.The
an
grant
or
guarantees
grand juries
complaint,
appropriate
Constitution
“be
other
relief.
13-71-113(2),
(1987) (emphasis
6A C.R.S.
represent
add-
selected
random so as to
fair
ed).
necessity
The defendants' claim that the
community.”
cross-section of the
Machetti v.
Linahan,
"significant”
(11th Cir.1982),
the state to show a
interest under
679 F.2d
cert.
denied,
Amendment
Sixth
versus a “substantial” in-
74 L.Ed.2d
terest under
UJSSA creates
differ-
Missouri,
the subtle
In Duren v.
978
364,
ence
the two
between
tests. The defendants con-
664, 668-69,
challenges
they
tend
established successful
under
(1979),
Supreme
the United States
Court articu
both these standards.
prima
lated the standard for a
violation
facie
authority
Because
dearth of Colorado
requirement:
cross-section
the fair
concerning the UJSSA's ban on discrimination
In order to establish a
violation of
status,
rely
based
the defendants
requirement,
the fair-cross-section
the defen-
See,
upon
interpreting
e.g.,
cases
the FJSA.
Unit
alleged
group
must show that the
dant
be
Bearden,
(5th
ed
States
659 F.2d
*8
group
is a "distinctive”
in the com-
excluded
(A
Cir.1981)
determination of a
viola
substantial
(2)
munity;
representation
that
the
of this
quantitative
quali
tion
the Act "has both
and
of
group
juries
in
are
venires from which
selected
aspects. Quantitatively,
tative
a substantial vio
is
fair and reasonable
to the
not
in relation
generally
lation
will not be found if the number
community;
number of such
in the
Qualitatively
inquiry
of errors is small.
is
the
(3)
underrepresentation
and
this
is due to
there has been a
whether
frustration
Act’s
systematic
group
juiy-
principle
exclusion of the
the
underlying
the
of exclusions on
basis of
process.
(citation omitted),
objective
only.”)
selection
criteria
cert.
made,
936,
prima
denied,
1993,
Once a
facie violation
the
has been
456 U.S.
102
72
S.Ct.
signifi-
(1982).
applies
state’s "rebuttal evidence focuses
Because
test
456
the Cerrone II
case,
justifies
present
interest
imbalance”
cant state
the
we do not
the defen
address
"systematic disproportion alone estab-
under either
because
dants' claims
the Sixth Amendment
prima
a
lishes
facie
claim....”
or the UJSSA.
cross-section
Machetti,
added).
(emphasis
53
York,
352, 360,
1859,
New
111
500 U.S.
S.Ct.
B
1866,
opin-
114
(plurality
L.Ed.2d 395
contend that the test
The defendants
(citation
omitted)
ion)
(quoting
footnotes
is
of section 18-71-103
essen
for a violation
256,
Feeney,
v.
442
Personnel Adm’r
U.S.
for a Sixth Amend
tially the same
2282, 2296,
279, 99
870
S.Ct.
60 L.Ed.2d
challenge. We must determine wheth
ment
(1979)).
be
er a violation of section 13-71-103 should
to a
applicable
under criteria
Sixth
evaluated
III,
appeals
the court of
found
equal
challenge
pro
or a Batson
Amendment
phrase
“on account of’ in the statute
A
challenge.
challenge of discrimina
tection
means, among
things,
of’ and
other
“because
grand juries
of
in state courts
tory selection
implies
section
“affirmative
13-71-103
Equal
brought under the
Protection
be
143, 146
P.2d
conduct.” See Cerrone
867
Clause of the Fourteenth Amendment. Cas
(Colo.App.1993);
supra
also
accom
see
text
Partida,
482, 492, taneda v.
430 U.S.
S.Ct.
panying
agree.
if a
note 8. We
Even
Sixth
1278-79,
1272,
A
its burden Partida, specifically jury questionnaire did not 430 U.S. The Castaneda vails. See 1272, 1283-84, juror’s 501, inquire prospective 51 L.Ed.2d about the econom- 482, However, However, phrase using articu once the state ic status. in section explanation for its selec “economic status” lates a neutral weigh Assembly to refer to a tion, must the evidence General intended trial court specific group. has satisfied See Florence v. Board if the defendant to determine of (Colo.1990) Batson, Waterworks, P.2d persuasion. 476 U.S. of his burden (“In statute, possi- interpreting a whenever at 1723-24. at ble, given effect and each word should be prohibits purposeful dis- 13-71-103 Section harmony provision construed in with each crimination, provides Batson test and the scheme.”). statutory Although a the overall analytic with which to eval- framework useful may economic class not illustrate a certain purposeful discrimination. allegations uate of group, example cognizable of a classic noted, however, 13- that section It must be language of the statute shows the General prohibition legislatively created 71-103 is Assembly’s that discrimination based intent during jury selection and on discrimination status not be sanctioned. on economic Although utilizing a not a constitutional one. standard, regarding a viola- matters similar The record reflects that members of Equal and the Pro- 13-71-103 tion section part society particular were excluded. States Constitu- tection Clause of United systematic and not ran The exclusion was separate and distinct. tion remain extrapolated from the dom. The defendants persons
statistical evidence that more
with
propor
incomes
excluded than
lower
were
A
community.
tionally
general
exist
II,
articulated the elements
In Cerrone we
underrepresenta
defendants established an
purposeful discrimi-
prima
of a
facie case of
lower education levels.
tion of
nation in
selection:
shows, based on some correlation
The record
Batson,
required is that
all that is
Under
income,
education and
that the man
between
(1)
the venire
the defendant show
provided
the venire
ner
pro-
practice
under a
question was selected
opportunity
with an
to discriminate on the
discrimination,
viding
opportunity for
sup
basis of economic status. The evidence
(2)
cognizable
group
...
of a
members
finding
prima
case of
ports the
substantially underrepresented
on
basis of economic sta
venire,
defendant is a mem-
tus.
underrepresented
group.
...
ber of that
B
II that a
Id. at 188. We noted
Cerrone
longer required to show'
is no
defendant
prima
Once a defendant has made a
membership
group
that is under
the same
discrimination,
prong
facie case of
the second
Id.;
represented on the venire.
see also
analysis requires the
of the Batson
Ohio,
400, 402, 111
Powers v.
S.Ct.
non-discriminatory
articulate a
or neutral
In de
113 L.Ed.2d
Batson,
reason for its
selection.
termining
defendant has estab
whether the
97, 106
at
S.Ct. at 1723. At this second
purposeful
dis
prima
lished a
facie case
inquiry,
step in the
the issue is the facial
crimination,
trial court must determine
“the
validity
explanation. The state
of the state’s
totality of the relevant facts
whether ‘the
of discrimi
not rebut a
facie case
discriminatory
gives
to an inference of
rise
through
of a discrimina
nation
mere denials
purpose.’”
In the context of this questionnaire] It indicates he’s [the facie case of rebut the defendants’ status, years. worked there for a little over two based on economic printing press. That he runs a That he required to articulate an economi- state was degree high school but no education cally explanation for its exclusion of has neutral particular beyond that. And the advice that would hourly wage earners. explanation routinely given questionnaire be on a like required to offer an based probably employed on an something other than the economic status this is that he’s on basis, hourly ap- make juror. which would his pearance every Friday difficult for him. case, deputy attorney general In this That, in combination with the fact he responsible coordinating for the selection of appear any experience wouldn’t to have jury grand provided reasons the statewide particularly helpful to the that would be hourly disproportionate exclusion of for the Jury, would have asked —we Grand we deputy from the venire. The earners suggested that he excused would have be attorney general explained that the state de- appearance impanelment date. from sired who could make the considerable testimony in It is clear from the the record necessary grand jury time commitment deputy attorneys general reviewing that the deputy attorney general be- service. The rejected applications systematically indi- that the time commitment involved lieved hourly wage appeared viduals who to be greater hardship for would create a economic earners. hourly wage work- earners than for salaried attorney deputy gen- In particular, ers. deputy attorneys general and of this economic eral believed that because presumably Judge surmised Chief Flowers hourly wage make hardship, earners would earners, hourly wage group, as a be either grand less stable and would grand jury be less able to serve on the grand unwilling or to serve on the unable They because of their economic status.13 Thus, systematically jury. the selection staff that the time commitment involved believed hourly wage dismissal of earn- recommended greater service would create grand ers from service. hourly wage hardship on earners Implicit in this than on salaried workers. why example, explaining As an when assumption an about the economic belief is may particular person have been excluded hourly wage status earners and the effect consideration, deputy attorney gen- from their that economic status would on eral stated: Thus, jurors.14 ability grand to serve as juror’s It indicates she’s This credentials. class from the state excluded an economic employee Longmont of Taco John’s opportunity participate ser cooking preparation and food and is generalized assumptions. This vice based For reason she’s business there. inherently discriminatory. probably paid by the hour and for that potential excuse a compensation receive Courts reason would not upon finding employer just one of service from her and it’s 13-71-112(2), hardship. 6A try keep this kind undue things those that we particular, Judge testify regarding the state seems to have assumed did not 13. Chief Flowers hourly wage offered his selection criteria. Because the state only are of a low economic earners testimony depuly attorneys incomes, various Due to their low the state be- status. process, general regarding we the selection must hourly wage less earners would be lieved Judge that Chief Flowers utilized the assume unwilling to serve on the able same criteria. *11 (1987)15. protection may finding paternalistic A of undue financial bur also be seen as hardship. undue Peo may constitute an exclusion. 13-71-103 den Section mandates Reese, 11, 14 (Colo.App.1983). ple opportunity all individuals have the to serve jurors may race, color, it is clear that be excused jury regard While on a without reli- jury of actual undue sex, service because gion, origin, national or economic status. hourly hardship, it not follow that all does Excluding individuals these bases even may jury wage earners be excluded from of intentions the best cannot be counte- hardship. supposed of a service because nanced. may generalized assumption not make a Because the state has not articulated a hourly wage undergo that all earners will too non-discriminatory economically neutral ex- great hardship an economic to be able to planation hourly wage for its exclusion of hourly wage serve on a Some grand jury, earners from the statewide it is might despite earners choose to serve unnecessary stage to reach the third may hardship. be able to Others analysis. purposefully Batson The state has adjust employment hours in order to their discriminated on the basis of economic status grand jury accommodate service. Still oth 13-71-103, and has violated section 6A C.R.S. may sources of income in addition to ers case, wages. many hourly wage their this earners excluded from service indicated on jury questionnaires they their did not V jury grand believe that service would abe Although we conclude that the state hardship making for them. Instead of 13-71-103, has violated section the defen finding hardship individualized of actual dants’ convictions should not be overturned. earners, hourly wage these the state as proper We have never articulated the stan they sumed would be unable to serve because reviewing dard for selection of a statewide of their economic status. To allow the state grand jury under section 13-71-103. Until to exclude individuals on this basis would now, grand the state was unaware that its any “breathe life into latent tendencies to practices illegal. While establish the as the instrument of the ruling proper remedy should the Thiel, economically socially privileged.” state continue to select in a discrimi at 987. The result manner, natory unnecessary it is to overturn grand jury
would be that no statewide defendants’ convictions this case. perspective have the benefit of the of some one of a lower economic status. The state’s Both defendants were afforded the full discriminatory actions were and violated the procedural protections of a trial before a mandate of section 13-71-103. properly petit jury. constituted After their recognize trials, respective
We
the state in all
guilty
each was found
be-
yond
likelihood was not motivated
animus
a reasonable doubt of one count of
against hourly wage
pandering
earners.
con
On the
and several violations of the Colo-
trary,
systematic
Act,
Organized
the state’s
exclusion of
rado
Crime Control
section
hourly wage
18-17-104,
likely
earners was
Although
most
motivat
8B C.R.S.
ed
concerns of administrative convenience
was selected in violation of the
law,
protect hourly wage
and an intent to
earners
is no
there
indication that
the defen-
hardship. Despite
any
addition,
from economic
prejudice.
their well- dants suffered
motives,
rejected jurors
any prejudice resulting
intentioned
from the determina-
probable
“on account of’ their economic status.
underlying
This
tion of
cause
the indict-
exactly
prohibits.
improperly
what section 13-71-103
ments
constituted
justified by
dispelled
Discrimination
not be
ad
petit jury
when the
found
Moreover,
charges
by proof beyond
ministrative convenience.16
sustained
perhaps always
expedient
15. This section is now codified at
It is
more
to make
(1994
stereotypical assump-
Supp.).
decisions on the basis of
tions,
6A C.R.S.
always
albeit not
more accurate.
*12
cases,
Therefore,
my
in
I set forth in
plied
these
as
the convictions
reasonable doubt.
Cerrone,
People
dissent in
planation for its exclusion
jury,”
earners from the statewide
we
upon
cases
are called
these two
we
purposefully
find
has
“[t]he
must
that
potential
determine whether
the basis of economic status
discriminated on
“on
service
account
been excluded
13-71-103, 6A
has
section
and
violated
...
13-71-103.
economic status.”
(1987).”
Furthermore,
I
Maj. op. at 56.
issue,
majority determines
resolving that
the
agree that
the convictions of Cerrone and
term
that
statute neither defines the
“[t]he
and thus I too
should not be set aside
Goetz
guidance
provides
nor
‘economic status’
appeals judgment up-
court of
conclude the
Maj. op.
to be
at 51.
the standard
used.”
holding
I
the convictions should be affirmed.
Thus,
the intent
Colorado
to determine
however,
my
separately,
to make clear
write
Assembly,
majority
resorts to an
General
plain language of
section
view
under
analysis
federal case law
answer
showing
purposeful
of animus or
13-71-103 a
question
“whether a violation
section
necessary to
is not
vindicate
under
should be evaluated
criteria
13-71-103
wrongfully
rights of
excused
challenge
applicable to a Sixth Amendment
community
prohibits
discrimi-
such
equal
challenge.”
protection
or a Batson
nation.
Maj. op.
ignoring principles
After
at 53.
normally
to in
look
Moreover,
statutory
Batson
construction we
assuming the
stan-
even
laws,1
majority
interpret our
adopted by
majority
ap- order to
should be
dard
Zartman,
1995);
plain
Shapiro and
majority
Meinhold
failed to adhere to
1. The
(Colo. 1992).
clearly
required
It is
estab
unambiguous language
P.2d
123-24
statute as
See,
language
of a
is
e.g.,
Molding,
lished
where
statute
PDM
Colorado case law.
clear,
(Colo.
meaning
plain
there
need
is no
Stanberg,
544-45
Inc. v.
the statute re-
II
“[b]ecause
concludes
purposeful
quires
to establish
a defendant
us,
Based on the record before
*13
discrimination,
analysis
ap-
is
a Batson
potential jurors
harmed were the
who were
evaluating
for
violations
propriate standard
improperly
participation in
excluded from
Maj. op. at 53.
of section 13-71-103.”
government because of their economic status.
Assembly
adopted
Our General
has
as the
majority’s
disagree
I
with the
inherent
policy
statutory
of our state a
scheme which
required to choose be-
premise that we are
prohibits discrimination on the basis of eco-
Amendment fair cross section
tween a Sixth
ju-
nomic status.
13-71-103. Selection of
analy-
analysis
equal protection
a Batson
by
rors
means which exclude citizens based
law,
sis, implements of
constitutional
federal
only
on economic status not
violates our stat-
I
submit
to construe
Colorado Statute.
utes,
juror’s
but also an individual excluded
that
13-71-103 is clear and
instead
section
right
participate
jury system
to
in our
terms,
unambiguous in its
and should be
community’s
preserving
interest
by
by
integrity
justice system.
enforced
this court as crafted
our
of our criminal
Assembly.
to
General
Such deference
feder-
previously
right
have
We
held
to
law,
fear, subjects
legislative
al case
I
our
impartial jury
an
has been “constitutionalized
policy
federal
nuances and
enactments to
only
protect
not
to
the innocent from an
may
we
later find unfortu-
future ease law
unjust
but,
equal importance,
conviction
to
nate.
preserve
integrity
society
itself
keeping
process by
sound and wholesome the
13-71-103 sets forth no affirmative
Section
it
wrong-
visits its condemnation on a
requirement
person’s
that a
exclusion from a
People Germany,
doer.”
349
improper
for one of the enumerated
(Colo.1983).
fact,
in 1991 the United
“purposeful”
or
reasons be
endured
ani-
Supreme
States
Court held that a criminal
against hourly wage
mus
earners. Had the
standing
defendant has
to raise the third-
Assembly
to
General
intended
include
ani- party equal protection
wrongfully
claims of
requirement,
mus
it
and would
could
jurors.
Ohio,
excluded
Powers v.
499 U.S.
written,
statute
done so. As
forbids
400, 415,
1364, 1373,
111 S.Ct.
113 L.Ed.2d
excluding
jurors
potential
from the venire on
(1991);
McCollum,
411
Georgia
see also
status, regardless
account of their economic
505 U.S.
dissent Cerrone community be defendants’ case of discrimi importance that mount status, entry into nation based on economic guarantee lieves we evenhanded required economically justice system way of the to articulate an our criminal explanation hourly its jury panel, petit, and not exclusion whether neutral jailhouse Maj. op. majori merely door.” earners.” at 55. through (Scott, J., official, dissenting). ty then “assume[s]” 854 P.2d at Flowers, Otherwise, Judge were to allow the state utilized the same crite if we Chief *14 hardship expressed by attorneys in the determinations of ria staff attor make unilateral Maj. discriminatory stereotypes, ney general’s op. at 55 office. n. on the basis of believe, gov I far participation assumption, full Such an falls short we would foreclose anticipated by by all our and such a result of the rebuttal Batson. ernment citizens judicial public in our undermines confidence impetus
process gives questions to about IV judicial system. of our fairness sum, jurors excluding on account of
III rights economic status violates the of the Finally, jurors applying public stan prospective even Batson and erodes confi- justice majority, integrity I dards outlined believe in the the criminal dence Moreover, meet its As forth system.. state failed to burden. set because section 13-71- majority, protect after out a defendant makes to the interests of intended showing prima potential jurors greater community, facie state deliber and the ately possible jurors of eco excluded because without animus is sufficient to status, nomic then shifts to the burden corrective action the state. Ac- warrant expla cordingly, “a neutral I agree improperly come forward with that the state (cit Maj. op. potential nation for its at 53 behavior.” excluded members of 1723). Batson, 97, 106 ing status, causing 476 U.S. at S.Ct. at harm on the basis explanation must be general The state’s reasonable and the communi- to excluded However, particular proof under of the I ty. the circumstances because conclude ease. of discrimination based economic status— proof discriminatory purpose without —is showing, seeking prima to rebut a facie necessary that is to vindicate the interests all deny may merely the state that it had a community large, or the potential motive, discriminatory simply it as nor failed, I under and because believe that, faith, good acting it was sert Batson, competent evidence of the submit against its actions dis benefit those whom attempt in its official intent Batson, criminate. 476 U.S. at facie case of economic to rebut Louisiana, (citing at 1723-24 Alexander discrimination, join majority I status 405 U.S. except parts III and B. opinion as to IV (1971)). give a state “must ‘clear and legiti reasonably specific’ explanation [its] exercising challenges.”
mate reasons for 20, 106 (citing 1724 n.
Id. at 98 n. S.Ct. at Community Dept. v. Bur Texas Affairs
dine, 258, 101 S.Ct. (1981)). Supreme
Court mere assertions rebutting pri- accepted defendant’s case, Equal
ma Protection Clause illusory require a vain and be but (quoting
ment.” Id. at at 1724 S.Ct. Alabama, 587, 598, 55
Norris v. (1935)). 79 L.Ed.