Serena v. Mock ( 2008 )

Corrected Reprint 10/31/2008
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID SERENA; MANUEL 
ESCAMILLA; CARMEN ALVAREZ;
ALEJANDRA HERNANDEZ,
Plaintiffs-Appellants,
v.
STEPHEN L. MOCK, Presiding No. 07-15218
Judge, Superior Court of Yolo
County, individually and in his  D.C. No.
CV-06-01262-FCD
official capacity; ROBIN WEAVER,
Yolo County Jury Commissioner, ORDER
individually and in her official
capacity; THOMAS WARRINER,
Judge, Superior Court of Yolo
County, individually and in his
official capacity,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Jr., District Judge, Presiding
Argued and Submitted
August 11, 2008—San Francisco, California
Filed October 27, 2008
Before: David R. Thompson and Kim McLane Wardlaw,
Circuit Judges, and Barry Ted Moskowitz,* District Judge.
*The Honorable Barry Ted Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.
14977
14978 SERENA v. MOCK
Order by Judge Wardlaw
COUNSEL
G. Whitney Leigh, Brian Brazier, Gonzalez & Leigh, LLP,
San Francisco, California, for plaintiffs-appellants David
Serena, Manuel Escamilla, Carmen Alvarez, and Alejandra
Hernandez.
Paul W. Cane, Jr., Sean D. Unger, Heather N. Mitchell, Paul,
Hastings, Janofsky & Walker LLP, San Francisco, California,
for defendants-appellees Stephen L. Mock, Thomas Warriner,
and Robin Weaver.
ORDER
WARDLAW, Circuit Judge:
David Serena, Manuel Escamilla, Carmen Alvarez, and
Alejandra Hernandez (collectively, “Appellants”) appeal from
the district court’s grant of summary judgment in favor of
Serena Mock, Thomas Warriner, and Robin Weaver (collec-
tively, “Appellees”) on their equal protection claim. We have
jurisdiction under 28 U.S.C. § 1291, and we review de novo
the district court’s decision to grant summary judgment.
Council of Ins. Agents & Brokers v. Molasky-Arman, 522
F.3d 925, 930 (9th Cir. 2008). Because Appellants’ equal pro-
tection claim is not justiciable, see Jacobs v. Clark County
Sch. Dist., 526 F.3d 419, 425 (9th Cir. 2008) (“For a plain-
tiff’s claim to be justiciable, he or she must have standing to
bring the claim, and the claim must not be moot.”), we vacate
the grant of summary judgment and remand with instructions
to dismiss, see In re Di Giorgio, 134 F.3d 971, 975 (9th Cir.
1998).
SERENA v. MOCK 14979
Appellants allege two forms of injury that raise distinct jus-
ticiability concerns. Appellants first claim that they them-
selves were deprived of the opportunity to apply for and serve
on the Yolo County Grand Jury (“Grand Jury”). At issue is
whether Appellants lack standing to assert this claim as they
have never actually applied to serve on the Grand Jury.
Appellants contend that their failure to apply does not defeat
standing because they did not receive equal notice of the
opportunity to apply for Grand Jury service in the first place.
This argument has some merit, insofar as a systematic exclu-
sion of the Hispanic population from the first stage of the
Grand Jury selection process—recruitment—would lead
directly to exclusion in the three remaining stages of the pro-
cess.
Yet this claim is ultimately moot. See Feldman v. Bomar,
518 F.3d 637, 642 (9th Cir. 2008) (“The basic question in
determining mootness is whether there is a present contro-
versy as to which effective relief can be granted.” (internal
quotation marks omitted)). It is evident from the complaint
that Appellants were aware of the Grand Jury application pro-
cess well over two years ago, and the current litigation dem-
onstrates that Appellants are fully aware of how to apply for
the Grand Jury. However, they did not apply to be considered
in the pool for selection for the Grand Jury at any time. Sim-
ply put, there is no indication that Appellants have ever dem-
onstrated any interest in actually becoming Grand Jury
members. Appellants’ knowledge of the application proce-
dures renders their challenge to the recruitment procedures
moot,1 since there is no effective relief that can be granted on
1
Appellants argue that even if this injury were considered moot, the
mootness exception for cases “capable of repetition, yet evading review”
would apply. We disagree. Given that Appellants now have notice of the
application procedure, there is no reasonable expectation that they would
be subjected to the same action again. See Murphy v. Hunt, 455 U.S. 478,
482 (1982) (stating that this exception only applies where “(1) the chal-
lenged action was in its duration too short to be fully litigated prior to its
cessation or expiration, and (2) there was a reasonable expectation that the
same complaining party would be subjected to the same action again”
(internal quotation marks omitted)).
14980 SERENA v. MOCK
this claim. See Feldman, 518 F.3d at 642-44. Their subse-
quent failure to apply for Grand Jury service deprives them of
standing to challenge the remaining selection procedures. See
Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 171 (1972);
Madsen v. Boise State Univ., 976 F.2d 1219, 1222 (9th Cir.
1992).
Appellants also allege that they have third-party standing to
bring a claim on behalf of other Hispanics who were denied
the opportunity to apply for and serve on the Grand Jury. The
Supreme Court has recognized third-party standing in cases
involving jury composition. See, e.g., Campbell v. Louisiana,
523 U.S. 392, 397-400 (1998) (allowing a litigant to raise a
claim on behalf of third parties where (1) the litigant has suf-
fered an “injury in fact”; (2) he has a “close relationship” to
the third parties; and (3) there is some hindrance to the third
parties asserting their own rights); Powers v. Ohio, 499 U.S.
400, 410-15 (1991) (same). Serena is the only litigant who
even arguably meets the three requirements for third-party
standing, since he has a basis for alleging an injury in fact
(unlike Escamilla, Alvarez, and Hernandez). Serena’s claim
ultimately fails as well, however, because he cannot meet the
constitutional requirements for Article III standing. See Fleck
and Assocs., Inc. v. City of Phoenix, 471 F.3d 1100, 1103-04
(9th Cir. 2006). Serena was never indicted, and the criminal
charges brought against him following the Grand Jury investi-
gation have been dropped. Moreover, Serena is no longer the
head of the Yolo County Housing Authority. Serena therefore
cannot show that there is a substantial likelihood that the
requested relief will redress or prevent the alleged injury. See
Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70-71
(1983).
We agree with the district court that Appellants’ “statistical
evidence that Hispanics have been underrepresented by an
absolute disparity of 13.5% over the past three years is trou-
bling,”2 and that “[u]naddressed or ignored, this continuing
2
The district court faithfully followed binding Ninth Circuit precedent
in determining what constitutes “substantial underrepresentation” of His-
panics in the jury pool. See United States v. Rodriguez-Lara, 421 F.3d
SERENA v. MOCK 14981
disparity is likely to provide future evidence of systematic
underrepresentation of a constitutional dimension.” Because
Appellants have not presented any justiciable claims, how-
ever, we lack jurisdiction to address the merits of their claim.
VACATED and REMANDED with instructions to DIS-
MISS. Each party shall bear its own costs.
932, 943 (9th Cir. 2005) (“Our case law has settled on ‘absolute disparity’
—the difference between the percentage of the distinctive group in the
community and the percentage of that group in the jury pool—as the
appropriate measure of the representativeness of the jury pool.”). Under
the “absolute disparity” approach, we consistently “have declined to find
underrepresentation of a distinctive group where the absolute disparity
was 7.7% or lower.” Id. at 943-44 (citing United States v. Suttiswad, 696
F.2d 645, 649 (9th Cir. 1982)). We question, however, whether the
approach compelled by our case law is mathematically sound. See
Rodriguez-Lara, 421 F.3d at 943 n.10 (“While Ninth Circuit precedent
requires us to evaluate representativeness using absolute disparity statistics
alone, that approach is not without short-comings.”); see also Hirst v.
Gertzen, 676 F.2d 1252, 1258 n.14 (9th Cir. 1982) (suggesting that the
“absolute disparity” test may be less accurate than other statistical mea-
sures when the cognizable group involved in the jury challenge represents
a small percentage of the population). We also question whether our juris-
prudence has drifted away from the Supreme Court’s original analysis in
Castaneda v. Partida, 430 U.S. 482 (1977). There the Court determined
the degree of underrepresentation using standard deviations of the sample
populations. Id. at 496 n.17 (explaining how to calculate standard devia-
tions from binomial distributions). Because we lack jurisdiction, however,
we leave these concerns for a future panel to address.
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