STATE of Wisconsin, Plaintiff-Appellant, v. Chambeous COBLE, Defendant-Respondent-Petitioner.
Nos. 80-505-CR, 80-517-CR
Supreme Court of Wisconsin
February 2, 1981
95 Wis. 2d 717 | 301 N.W.2d 221
Argued November 26, 1980.
Amicus curiae brief was filed by Gerard S. Paradowski, acting corporation counsel, Milwaukee county.
SHIRLEY S. ABRAHAMSON, J. The issues on review are whether the Milwaukee county jury selection procedure for preparing the jury list complies with the statutory requirements of
I.
Defendant Chambeous Coble was charged with endangering safety by conduct regardless of life in violation of
The defense and the prosecution immediately filed petitions to the court of appeals for leave to appeal,
Trial on the charge of endangering safety commenced on March 18, 1980. On March 20, 1980, the jury returned a verdict finding the defendant guilty.
The court of appeals concluded that the commissioners acted within their statutory powers in exempting, excluding or disqualifying persons from the list of potential jurors on the ground of infirmity because of a physical condition, but that they exceeded their statutory powers in excluding or excusing persons from the list of pro-
Although the state‘s brief in this court supports the decision of the court of appeals, at oral argument the state reverted to the position taken earlier by the Milwaukee county district attorney in the circuit court and in the court of appeals and argued that the Milwaukee county jury selection procedure does not conform to statutory requirements. We agree with the position taken by the parties, and conclude that the Milwaukee county jury selection procedures for preparing the jury list transgress the statutes.
II.
We begin by comparing the procedure for preparing the jury list set forth in
The legislature requires the three jury commissioners appointed in each county,
“756.01 Qualifications of jurors. (1) Persons who are U. S. citizens, who are electors of the state, who are possessed of their natural faculties, who are not infirm, who are able to read and understand the English language, and who have not been summoned to attend for prospective service as a petit juror for the time period applicable under s. 756.04(5m) within 2 years, shall be liable to be drawn as grand or petit jurors.”
Exemptions, exclusions, disqualifications and excuses from jury service are dealt with in
“Sec. 756.01 (2). Subsection (1) [of 756.01 quoted above] shall not exempt, exclude or disqualify a person from jury service on the ground of infirmity because of a physical condition unless the judge finds that the person clearly cannot fulfill the responsibilities of a juror. The judge shall not consider the structural, physical or architectural limitations or barriers of a building, courtroom, jury box or other facility in making such a finding.”
“(1) Judges and attorneys who claim an exemption pursuant to this section shall be exempt from jury service. No other qualified juror is exempt from jury service.
“(2) (a) Any person or group of persons may be excluded from the jury panel or excused from service as jurors by order of the judge based on a finding that jury service would entail undue hardship, extreme inconvenience or serious obstruction or delay in the fair and impartial administration of justice. The exclusion or excuse shall continue for a period deemed necessary by the judge, at the conclusion of which the person or group of persons shall reappear for jury service in accordance with the order of the judge.
“(b) A state legislator or full-time elected official shall be excused from service as a juror if the official states to the court that jury service would interfere with the performance of his or her official duties.
“(c) No citizen may be excluded from service as grand or petit juror in any court of this state on account of race or color or because of a physical condition, except as provided in s. 756.01 (2).”
The procedure employed in Milwaukee county to select prospective jurors was described by the witnesses at the hearing in the circuit court and again by counsel for Milwaukee county at the oral argument.
In Milwaukee county, where the process is computer assisted,
The “Juror Qualification Questionnaire” is a simple, single page form. The first part of the questionnaire requests basic information relating to occupation; employer‘s name and address; age; spouse‘s name and occupation; spouse‘s employer‘s name and address; age of children; sex (F, M); woman‘s maiden name; marital status (married, single, divorced, widowed); and current mailing address. The second part of the questionnaire consists of the following six questions:
“1. Are you a citizen of the United States? — YES — NO
2. Are you at least 18 years of age? — YES — NO
3. Can you read and write the English language? — YES — NO
4. Have you been summoned for jury service in Milwaukee County in the past 2 years? — NO — YES Sworn on a jury? — YES — NO
5. Have you been convicted of a felony? — NO — YES; Civil rights restored? — YES — NO
6. Do you have any disabilities that would prevent you from serving as a juror? — NO — YES; Explain: ____________”
As a result of this process, the jury commissioners excluded approximately twenty-five percent of those persons to whom questionnaires were sent in preparation of the jury list in issue in this case. To illustrate the kind and variety of the jury commissioners’ decisions in excluding persons from the jury list, the parties placed in record twelve questionnaires from persons who were permanently excluded from the jury list by the jury commissioners. The defense counsel and the district attorney agreed that these twelve questionnaires were representative of the many questionnaires counsel examined. The jury commissioners excluded these twelve persons who answered “yes” to question 6 inquiring whether the individual had any disabilities which prevented him or her from serving as a juror on the basis of the following written explanations:
- Not well (age 72).
- I am going through allergy tests at the present time and they make me sleepy constantly (billing clerk, age 20).
- I request you not ask me for jury duty (housewife and mother age 56).
- I don‘t have the stamina to attend every day (age 67).
- Recurring gout (employee of the City of Milwaukee, age 49).
- Job requirements (occupation “electrical,” age 27).
- I do not have the proper education (clerk, age 55).
- I do not want to serve on a jury (cashier, age 37).
- I have arthritis and allergy problems and full time job (nursing assistant, age 59).
- CVA—Aphasia (signed by granddaughter).
Cannot read, write or understand English. - My age (76). Not much self-confidence for such a job.
Jury Commissioner Roman Witkowiak and Chief Judge Manian testified at the motion hearing that aside from the statutes there were no written guidelines or standards which govern the jury commissioners’ decision to exclude persons from the jury list in Milwaukee county. The jury commissioner testified that, although the commissioners occasionally sought counsel from the chief judge, they exercised their own discretion in excluding persons. Judge Manian had written the jury commissioners on January 11, 1980, as follows:
“Dear Mr. Witkowiak:
“This is to inform you that the procedure previously established by Judge Sullivan in his letter of September 1, 1978, is continued, to-wit the jury commission is authorized to excuse jurors patently unqualified as apparent from the said questionnaire.
“If there are any questions concerning this matter, please do not hesitate to contact me.
“Very truly yours,
“Victor Manian, Chief Judge.”
Judge Sullivan‘s letter is not part of the record and was not described by the witnesses.
Judge Manian testified that he had not issued any guidelines for determination of juror qualification or disqualification; that he had only recently begun to be presented with packets of jury questionnaires; that the packets did not contain any findings of fact or memoranda discussing the jury commissioner‘s reasons for omitting certain names from the jury list; that he had not personally reviewed, investigated or examined the questionnaires to determine whether or not the persons excluded by the jury commissioners had set forth reasons justifying their exclusion from the jury list; that he was
III.
The state and the defense contend that the Milwaukee county procedure for selecting jurors impermissibly deviates from the statutory requirements in three respects: (A) contrary to
(A)
Question 3 of the Milwaukee juror qualification form asks: “3. Can you read and write the English language?” (Emphasis added.)
As of 1977 the legislature no longer requires that a person be able to write the English language to qualify as a juror, although prior to 1977 the ability to write English was required by law. Sec. 2530, 1898 Rev. Stats., specifically required that jurors be persons “who are able to read and write the English language understandingly.” This language remained unchanged until 1977 when it was amended to state that a juror must be “able to read and understand the English language.” Sec. 12, ch. 318, Laws of 1977; sec. 255.01, renumbered
We conclude that the wording of Question 3 of the Milwaukee County Juror Qualification Questionnaire does not “elicit the information specified under s. 756.01” as required by
(B)
The state and the defense interpret
We are not persuaded by the reasoning of the court of appeals. The court of appeals construes
We can detect no ambiguity in the statutory language which requires that a judge decide whether a physical condition is a ground for exclusion, exemption or disqualification from jury service.
We agree with the court of appeals that the legislative history shows that the purpose of the 1975 amendment of
The history of
The 1849 statutes made all United States citizens who were qualified electors eligible for jury service and exempted a long list of persons, including “[p]ersons sub-
In 1913 the qualifications for jurors were set forth as follows:
“All citizens of the United States who are qualified electors of this state who are possessed of their natural faculties, who are not infirm or decrepit, who are esteemed in their communities as men of good character, approved integrity and sound judgment, and who are able to read and write the English language understandingly,
shall be liable to be drawn as jurors, except as otherwise provided in the statutes.” (Emphasis supplied.) Sec. 2, ch. 441, Laws of 1913; sec. 2524, Stats. 1913.
The legislature continued to exempt many occupational categories. Sec. 2525, Stats. 1913. The jury commissioners were to provide the list of names to serve as jurors “of such persons as they believe to be possessed of the qualifications prescribed by section 2524 [quoted above].” Sec. 4, ch. 441, Laws of 1913; sec. 2533b, Stats. 1913.
In 1949 (sec. 255.01, Stats. 1949), the phrase “not infirm or decrepit” in the list of qualifications was replaced by the phrase “not infirm,” and the phrase “men of good character, approved integrity and sound judgment” was amended to read “of good character and sound judgment.” See ch. 488, Laws of 1949. Sec. 255.02, Stats. 1949, set forth the numerous exempt categories of persons. The legislature further expressly provided that the jury commissioners were prohibited from inserting the name of any person on the list of jurors “who is exempted or disqualified under section 255.02, nor unless such person is determined to have the qualifications specified in section 255.01 upon the knowledge of the commissioners or upon the receipt by them of reliable information indicating that the person is so qualified.” Sec. 255.04(2) (a), Stats. 1949. The legislature also authorized jury commissioners to investigate reputation, character and fitness for jury service. Sec. 255.03(4), Stats. 1949. The 1949 law appears to mark the zenith of the jury commissioners’ statutory power and duty to exclude, disqualify, exempt or excuse potential jurors on the basis of the qualifications and exclusions set forth in secs. 255.01 and 255.02 and on the basis of both objective and subjective criteria. See 39 Op. A.G. (Wis.) 606 (1950); Note, Constitutional Law—Restriction of Jury Service to College Graduates 1950 Wis. L. Rev. 690.
In 1969 (chapter 305, Laws of 1969), the legislature amended sec. 255.02 and eliminated the long list of persons automatically exempt from jury service. The legislature substituted a list of three “exempt” groups: those automatically exempt (e.g., officers, attorneys, doctors, ministers and students); those exempt at their request or on the judge‘s own motion (e.g., teachers, druggists, embalmers, employees at state and county institutions); and those whom the judge may excuse or exclude from jury service for good cause (e.g., undue hardship, extreme inconvenience or serious obstruction or delay in the fair and impartial administration of justice). Sec. 255.02, Stats. 1969. In the 1969 law the legislature shortened the list of persons entitled to automatic exemptions and increased the power of the judge to exclude persons. Sec. 255.04(2)(a), Stats. 1969, remained unchanged in authorizing the jury commissioners to strike from the jury list “the names of persons found by them to be ineligible for jury service.” In Brown v. State, 58 Wis.2d 158, 171, 205 N.W.2d 566 (1973), this court held that the jury commissioners had no authority to exclude systematically all teachers; individual teachers
In 1975 the legislature enacted sec. 756.01(2), Stats., and sec. 756.02(2)(c), Stats., quoted previously at pages 187 and 188, authorizing judges, not jury commissioners, to exclude those unable to fulfill their responsibilities on the ground of infirmity because of a physical condition. The court of appeals correctly described the qualifications set forth in sec. 756.01(1), Stats., as basic requirements. They are, to the maximum extent possible, objective, rather than subjective, criteria. The qualifications “possessed of their natural faculties” and “not infirm” are health-related and allow broader discretion in their application than do the other qualifications set forth in sec. 756.01(1), Stats. Sec. 756.01(2) authorizing judges, not jury commissioners, to make certain health-related determinations is in harmony with the 1953 and 1969 revisions which placed discretion in the judge, not the jury commissioners, to exclude from jury duty those whom the legislature did not wish to exclude automatically.
Thus in 1953, 1969 and 1975, the legislature enacted specific provisions requiring the judge, not the jury commissioners, to rule on certain qualifications, exclusions, exemptions or excuses from jury service. Both the language and the legislative history of ch. 756, Stats., reveal the legislative intent to divide responsibilities in the selection of qualified persons for the jury list between the jury commissioners on the one hand and the judge on the other. With the aid of this legislative history we conclude that had the legislature intended the jury commissioners, not the judge, to determine whether a person is unable to fulfill the responsibilities of a juror on the ground of infirmity because of a physical condition, it would have said so. Instead the legislature
In 1977 the legislature again significantly revised chapter 255 of the statutes entitled “Jurors.” The requirement that potential jurors be persons “who are esteemed in their communities as of good character and sound judgment” was deleted as a qualification, as was the jury commissioner‘s investigatory authority to inquire as to reputation and character. Secs. 12, 14, ch. 318, Laws of 1977. Sec. 255.02, Stats., (renumbered sec. 756.02, Stats.) was amended in 1977 to eliminate the various categories of exempt and excluded persons and to provide that “[j]udges and attorneys who claim an exemption pursuant to this section shall be exempt from jury service [and] [n]o other qualified juror is exempt from jury service.” Sec. 13, ch. 318, Laws of 1977. The technique of determining juror qualification by questionnaire was established, sec. 18, ch. 318, Laws of 1977, and the statutes continued to provide that the list compiled by the jury commissioners “be certified by the commissioners as having been prepared in strict conformity with the statutory requirements.” The 1977 law added the requirement that “[t]he list shall also include a verified statement describing the manner in which the list was compiled or modified, including an enumeration of all public or private sources from which the names of the prospective jurors on the list were derived.” Sec. 16, ch. 318, Laws of 1977; sec. 756.04(2)(a), Stats.
Wisconsin legislative policy placing increasing tasks on the judge, not the jury commissioners, to exclude, exempt, disqualify and excuse persons from jury service, is consistent with the standards and policies set forth in sec. 2.62 of the Standards Relating to Trial Courts promulgated by the American Bar Association Commission on Standards of Judicial Administration (1976),10
Sec. 756.01(2), Stats., whether read alone or read against the background of the legislative history of chapter 756, yields the conclusion that a judge, not a jury commissioner, has the power to exempt, exclude or disqualify a prospective juror from service on the ground set forth in sec. 756.01(2), Stats. A jury commissioner‘s power to exempt, exclude or disqualify an individual from the jury list is limited to the other grounds enumerated in sec. 756.01(1), Stats. Thus the Milwaukee county jury commissioners exceeded their powers when they excluded a prospective juror from the jury list for inability to fulfill the responsibilities of a juror on the grounds of infirmity because of a physical condition.
(C)
The state, the defense and the court of appeals concluded that the jury commissioners exceeded their powers when they excluded a prospective juror from the jury list for any reason other than that the potential juror did not meet the requirements set forth in sec. 756.01(1), Stats. We concur in this decision. The jury commissioners erred in excluding prospective jurors who asserted hardship, job requirements, inconvenience, lack of interest, or unwillingness to serve. These assertions raise matters beyond the statutorily defined qualifica
(D)
Whatever merit there may be to the existing Milwaukee county jury selection procedure which relieves judges of the task of excluding certain persons from jury service, the procedure does not conform to the statutes and must be discontinued. Cf. State ex rel. Morrow v. Lewis, 55 Wis.2d 502, 506, 200 N.W.2d 193 (1972). We conclude that the Milwaukee county jury selection procedure must be changed forthwith to be in strict conformity with statutory requirements. Sec. 756.04(2)(a), Stats.
Accordingly, this court, in the exercise of its superintending and administrative authority pursuant to sec.
The chief judge should promulgate specific guidelines for exempting, excluding, or disqualifying persons who cannot fulfill the responsibilities of a juror on the ground of infirmity because of a physical condition and for excluding or excusing a person or group of persons from jury service on the basis of undue hardship, extreme inconvenience or serious obstruction or delay in the fair and impartial administration of justice. These guidelines shall be used by the jury commissioners when they make recommendations to the judge and by the judge in making the required finding under secs. 756.01(2) and 756.02, Stats.
Because the questionnaire contains “a declaration that the responses are true to the best of the person‘s knowl
Notwithstanding our conclusion that the procedure used in compiling the jury list is in violation of the statutes, we direct in the interest of efficient administration of justice that the existing jury list and the existing panels be used until a new jury list and new panels are established in strict conformity with the statutes.
IV.
The question remaining is whether Milwaukee county‘s transgressions require reversal of the orders and therefore reversal of the defendant‘s conviction.
Neither the defendant nor the state contends in this court that any segment of the population was systematically and illegally excluded from jury service16 or that federal or state constitutional rights have, in any way, been violated. State v. Holmstrom, 43 Wis.2d 465, 471-72, 168 N.W.2d 574 (1969); Brown v. State, 58 Wis.2d 158, 165, 205 N.W.2d 566 (1973); Wilson v. State, 59 Wis.2d 269, 208 N.W.2d 134 (1973); State v. Pruitt, 95 Wis.2d 69, 289 N.W.2d 343 (Ct. App. 1980); Duren v. Missouri, 439 U.S. 357 (1979).
The state and defendant agree that their statutory rights under chapter 756 have been violated. They disagree whether the conviction should be reversed as a result of the statutory violations.
The legislature has addressed the issue of when a verdict or judgment shall be set aside or a new trial granted on an objection to certain stages of the jury selection process. Sec. 270.52, Stats. 1973, provided as follows:
“270.52 Irregularities in venires, etc., immaterial No irregularity in any writ of venire facias or in the drawing, summoning, returning or impaneling of petit jurors shall be sufficient to set aside a verdict unless the party making the objection was injured by the irregularity or unless the objection was made before the returning of the verdict.”17
This section was repealed effective January 1, 1976, and sec. 805.18(2), Stats., was adopted which, according to the Judicial Council Committee‘s Note, 1974, is substantially equivalent to sec. 270.52, Stats. 67 Wis.2d 714, 760. Sec. 805.18, Stats., provides:
“805.18 Mistakes and omissions; harmless error. (1) The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party.
“(2) No judgment shall be reversed or set aside or new trial granted in any action or proceeding on the ground of drawing, selection or misdirection of jury, or the improper admission of evidence, or for error as to any matter of pleading or procedure, unless in the
opinion of the court to which the application is made, after an examination of the entire action or proceeding, it shall appear that the error complained of has affected the substantial rights of the party seeking to reverse or set aside the judgment, or to secure a new trial.”
Attorney Graczyk, in her article entitled The New Wisconsin Rules of Civil Procedure, Chapters 805—807, 59 Marq. L. Rev. 671, 715 (1976), comments that subsection (1) of sec. 805.18, Stats., sets out the harmless error doctrine to be applied by the trial court and subsection (2), which replaces former sec. 270.52, Stats., as to irregularities in the impaneling of the jury, sets out the harmless error doctrine to be applied by the appellate court.18 We view the test of whether error affects the substantial rights of the party to be essentially the same whether applied by the trial or appellate courts. The legislature obviously did not intend that all deviations from the statutory jury selection procedure would justify setting aside a verdict. The legislature intended the doctrine of harmless error to apply to jury
This court, in assessing jury challenges in prior cases, has stated that irregularities in the process are immaterial unless it appears probable that there has been prejudice. “The rule in this state is that irregularities in the selection of jurymen are to be disregarded unless it appears probable that the person seeking to take advantage thereof has been prejudiced thereby. Ullman v. State (1905), 124 Wis. 602, 609, 103 N.W. 6.” Petition of Salen, 231 Wis. 489, 491, 286 N.W. 5 (1939). Accord Pamanet v. State, 49 Wis.2d 501, 509, 182 N.W.2d 459 (1971). In other cases this court has indicated that it will review a challenge to the selection of the “jury array” that is to the preparation of the jury list to determine if there was a violation “in any material respect” or whether there was “substantial compliance” with the jury selection statute. State v. Nutley, 24 Wis.2d 527, 540, 129 N.W.2d 155 (1964), cert. denied 380 U.S. 918 (1965); State v. Bond, 41 Wis.2d 219, 227, 163 N.W.2d 601 (1969).
In Nutley we “stress[ed] the importance of the proper selection of the jury array” and said that “[s]ubstantial compliance ... [with the jury selection statutes] will insure that jurors will be selected only after careful deliberation as to their qualifications, and only after every effort has been made to pick a truly representative group.” State v. Nutley, 24 Wis.2d 527, 540, 129 N.W.2d 155 (1964), cert. denied 380 U.S. 918 (1965). Conversely, if there has not been substantial compliance with the jury selection statutes as to the preparation of the jury list, the parties are not insured that every ef
Where a party has properly and timely objected to the procedure for preparing a jury list, the test for determining whether the jury selection procedure substantially complies with the statutes is to measure the procedure used against the jury selection statute and against the objectives of the statute and the objectives of the statutory provisions which have been violated. Cf. United States v. Davis, 546 F.2d 583, 589 (5th Cir. 1977); United States v. Smith, 588 F.2d 111, 115 (5th Cir. 1979); United States v. Maskeny, 609 F.2d 183, 191 (5th Cir. 1980). The legislative objectives in chapter 756, and especially in secs. 756.01 and 756.02, are that all qualified citizens have the opportunity and the obligation to serve as jurors. The selection and use of a jury is part of our concept of a democratic society and representative government and the legislative policy and purpose reflected in chapter 756 is that juries be selected from a broad cross-section of the community and that
We must therefore determine whether the Milwaukee county jury selection procedure frustrated the legislative goals of obtaining jurors on the basis of objective qualifications set forth in the statutes, selected at random, and from a broad cross-section of the community. If the goals were frustrated, the stay should have been granted and the conviction must be reversed; if the goals were not frustrated, the defendant‘s objection was properly overruled.
When we look at the operation of the aspect of the Milwaukee county jury selection procedure in issue in this case and the effect of the statutory violations, we conclude that the procedure does not conform strictly to the statutory requirements, as the legislature has mandated, but that the procedure does not frustrate the legislative goals. In the instant case, the persons excluded from the jury list were excluded at their own request and not by the jury commissioners against the wishes of the people involved. Those who were excluded were excluded on the basis of their responses to the questionnaire, and several questionnaires evidence meritorious statutory grounds justifying the person‘s exclusion. We recognize that some persons were excluded from the jury list by the jury commissioners on improper grounds such as the person‘s own unwillingness to serve as a juror. An individual‘s personal predilection
Although we conclude that the jury selection procedure employed by Milwaukee county does not conform to the statutes and although we direct the jury selection procedure be modified forthwith to bring it into strict conformity with the statutes, we conclude that the procedure used was in substantial compliance with chapter 756, Stats., that the purpose of chapter 756, Stats., has not been frustrated, and that a reversal of the orders of the circuit court is not required.
By the Court.—The decision of the court of appeals is affirmed.
I agree that jury duty is one of the most important obligations of citizenship. However, we should be realistic enough to acknowledge that persons who are unwilling to serve because of illness, inconvenience or lack of confidence do not make good jurors. The parties to a case are entitled to a jury made up of citizens who are motivated and able to perform their duties.
The increasing complexity of the issues presented to juries in cases such as medical malpractice and products liability today requires more than a minimum “understanding” of the English language on the part of potential jurors. Jurors today must decide cases raising difficult and complicated questions dealing with accounting problems and engineering design. It makes no sense to argue about the nuances of complicated instructions, if we have no assurance that the jurors sitting in the case have the linguistic ability to recognize, comprehend, analyze or understand the same. If they do not, the instructions are an exercise in futility and the parties litigant are not receiving due process of law.
The majority says that jury commissioner Roman Witkowiak testified that the commissioners “occasionally sought counsel” from the chief judge while exercising “their own discretion” in excluding persons. Excerpts of his testimony on this point are as follows:
“Q. Sir, do you have, in your possession, or do you know of any orders entered by either Chief Judge Sullivan or Chief Judge Manian setting up guidelines as to when you can suggest somebody to be permanently excused?
“A. Yes, I do have. When I saw this questionnaire and saw all the answers on there, the answers on here is what prompts us to either excuse them for a two year period, permanently or to disqualify them; and any of them that were excused permanently or for a two year period, were sent up to the Judge, the Chief Judge. . . .”
“A. . . . And we religiously check every questionnaire and don‘t excuse a person if we‘re not sure, we take it up to the Judge, even until this day.
“. . .
“Q. Now, in Judge Sullivan‘s letter, to your knowledge, are there any guidelines or are there any standards set forth from which you can determine whether a person is excludeable [sic] or excuseable?
“A. Well, we did set up some rules long ago. We don‘t follow them because we changed the questionnaire quite a bit. The questionnaire is such now that you can get your answers on every one; and if you look through those, you‘ll see that we do not excuse anybody unless he‘s on a dead—he died or he‘s on a deathbed or he‘s unable to walk. But, he‘s got to specify it himself. We do not exclude even blind people or people in wheelchairs if they so indicate that disability will not prevent them from serving on a jury. We even put those on a jury. And if we have questions, whatsoever, regarding excusing them permanently, we‘ll go to the Chief Judge.”
It is clear that the jury commissioners claim no discretion to exclude any person from jury service who does not answer affirmatively to question six on the jury questionnaire that he or she has disabilities that prevent him or her from serving as a juror. The worst that can be said about the current Milwaukee County practice is that the jury commissioners exercise their discretion to take citizens at their word in making a recommendation to the chief judge.
“The commissioners shall revise the list by striking from it the names of persons found by them to be ineligible for jury service, as provided in s. 756.01, and add to the list the names of additional persons as provided in s. 756.05.” (emphasis supplied).
I see no need for “guidelines” drawn by the chief judge or “findings of fact” by the jury commissioner recommending exclusion. The twelve examples given by the majority are straightforward. I am confident the judges responsible for granting or denying screening recommendations made by the commissioners are perfectly capable of exercising their well-reasoned judgment in this matter. There is no reason to create more red tape for our citizens than they currently have to deal with. Potential jurors are entitled to fair treatment also. A requirement of documentation such as a letter from a physician to support a request for exclusion causes unnecessary expense and consumption of time of both the doctor and the prospective juror. Further, it tends to suggest an official distrust of the motives of
I agree with the majority that the decision of the court of appeals should be affirmed. For the reasons expressed, I disagree with the dicta relating to procedures to be followed by the chief judge and the jury commissioners in implementing the court‘s construction of ch. 756, Stats. I also recommend to the legislature that the current jury selection statutes, as construed by the majority, be amended so as to permit the common sense, practical approach to the question which has been undertaken in Milwaukee County as disclosed by the record in this case. Further, I suggest that the legislature return to the jury qualification statutes the provision that jurors should be those who are esteemed in their communities to be of good character and sound judgment. The jury commissioners should be given the authority to inquire as to the reputation and character of prospective jurors. The goals of having an intelligent jury represent a cross section of the community and having the citizenry recognize the obligation of jury service can be promoted without subjecting those who are ill or infirm or are senior citizens to the burden of documenting their requests for exclusion by letters from their physicians and without creating the potential for yet another level of bureaucracy to intrude into their privacy under the guise of jury duty for all.
I am authorized to state that Mr. Justice WILLIAM G. CALLOW joins in this concurrence.
Notes
“(2) (a) The commissioners shall annually before the first Monday in April provide for each court covered by sub. (1), unless the judge or judges thereof otherwise order, one countywide list of not less than 600 names of persons to be drawn from the county to serve as petit jurors. The commissioners shall revise the list by striking from it the names of persons found by them to be ineligible for jury service, as provided in s. 756.01, and add to the list the names of additional persons as provided in s. 756.05. The list shall be certified by the commissioners as having been prepared in strict conformity with statutory requirements. The list shall also include a verified statement describing the manner in which the list was compiled or modified, including an enumeration of all public or private sources from which the names of the prospective jurors on the list were derived.”
“The commissioners shall determine eligibility for jury service by mailing to every prospective juror on the list a juror qualification form accompanied by instructions to fill out and return the form to the commissioners within 10 days after its receipt. The form shall elicit the information specified under s. 756.01 and shall contain a declaration that the responses are true to the best of the person‘s knowledge and an acknowledgement that upon a wilful misrepresentation of a material fact or failure to return the completed form within 10 days after its receipt the person may forfeit not more than $500. If the prospective juror is unable to fill out the form, another person may complete it and shall indicate that he or she has done so and the reason therefor. If it appears there is an omission, ambiguity or error in a return form, the commissioners shall send the incomplete form back to the person with instructions to make the necessary addition, clarification or correction and to return the form to the commissioners within 10 days after its receipt.”
“(4) The commissioners shall meet at such times as the discharge of their duties requires and at such times as the appointing judge or judges or any of them shall direct. Two commissioners shall constitute a quorum. They may subpoena any person to appear before them within the town, village or city where the person resides for examination as to any person‘s qualifications for jury service, and may compel the person to give testimony under oath. The commissioners may investigate by inquiries at any person‘s place of business, residence, or elsewhere, or by other means, his or her fitness for jury service. All public officers and employes shall furnish the commissioners, upon their request, the records and assistance which the commissioners deem proper to perform their duties.”
The state‘s brief describes the steps in the jury selection process as “levels” and summarizes the levels as follows: Level 1 is the establishment and maintenance of the jury list by the jury commissioners.
“Witnesses at the public hearings identified specific language in the statutes and administrative rules which clearly discriminated against people with physical disabilities or which included terms they found offensive. The most flagrant example, Section 255.10 of the Wisconsin Statutes, prohibits the ‘infirm’ from serv-
ing on juries. To remedy this clear denial of individual rights, THE TASK FORCE RECOMMENDS:“To the Legislature:
“1. Amendment of the statute to prohibit exception, exclusion, or disqualification of jurors with physical disabilities unless the judge finds that the individual clearly cannot fulfill the responsibilities of a juror. The judge‘s decisions should consider only individual limitations in relation to the case. That determination must not include socially imposed limitations such as the structural or architectural barriers of a building, courtroom, jury box or other facility.” (Emphasis in original.)
For a discussion of deaf persons and jury service see Note, Jury Selection: The Courts, The Constitution and The Deaf, 11 Pacif. L.J. 967 (1980).