Redd v. Negley , 124 Utah Adv. Rep. 23 ( 1989 )

DURHAM, Justice

(dissenting).

I dissent. I fear that the majority’s failure to correctly apply the law to the facts presented here may impair the federal constitutional right to an impartial jury in Utah.¹

The United States Supreme Court has held that the constitutional principles of due process and equal protection embodied in the fourteenth amendment preclude discriminatory jury selection in state courts.

The Fourteenth Amendment, in addition to due process and equal protection clauses, declares that “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” So empowered, the Congress on March 1, 1875, enacted that “no citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitude.... For us the majestic generalities of the Fourteenth Amendment are thus reduced to a concrete statutory command_”

Fay v. People of State of New York, 332 U.S. 261, 282, 67 S.Ct. 1613, 1625, 91 L.Ed. 2043 (1947) citing Act of Mar. 1, 1875, ch. 114, 18 Stat. 336 (current version at 18 U.S.C. § 243 (1982)).

The Fifth Circuit Court of Appeals has held that “[a] just and fair trial by an unbiased, unprejudiced and impartial tribunal is one of the great American constitutional principles. There can be no ‘due process’ or ‘equal protection’ unless that principle remains inviolate.” Billingsley v. Clayton, 359 F.2d 13, 15 (5th Cir.1966), cert. denied, 385 U.S. 841, 87 S.Ct. 92, 17 L.Ed.2d 74 (1966).

The constitutional protection against discriminatory jury selection in state courts is the same for criminal and civil cases. “The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community.” Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181 (1946); see also Simmons v. Jones, 317 F.Supp. 397, 403 (S.D.Ga.1970) (in a jury trial in state court, “a litigant in a civil case is entitled to a trial before a jury drawn from a list constituting a fairly representative cross-section of the community”), rev’d on other grounds, 478 F.2d 321 (5th Cir.1973).

The majority is correct when it states that the federal constitution does not require any minimum proportion of members of a racial class on each jury panel. See Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 701, 42 L.Ed.2d 690 (1975) (“Defendants are not entitled to a jury of any particular composition.”). The only requirement is that “the jury be indiscriminately drawn from among those eligible in the community for jury service.... ” Hoyt v. Florida, 368 U.S. 57, 59, 82 S.Ct. 159, 161, 7 L.Ed.2d 118 (1961).

The majority is not correct, however, in its finding that plaintiff did not establish a prima facie showing of a violation of the sixth amendment. As the majority decision notes, to establish a prima facie violation of the constitutional requirement that the jury be selected from a fair cross-section of the community, a party must show

(1) that the group alleged to be excluded is a “distinctive” group in the community;

(2) that the representation of [a “distinctive”] group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and

(3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979).

More recently, the United States Supreme Court, in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), addressed the nature of the prima facie showing which must be made. Although the majority opinion refers to Bat-son, it does not include some important language from the decision:

The defendant initially must show that he is a member of a racial group capable of being singled out for differential treatment. In combination with [that] evidence, a defendant may then make a prima facie case by proving that in the particular jurisdiction members of his race have not been summoned for jury service over an extended period of time. Proof of systematic exclusion from the venire raises an inference of purposeful discrimination because the “result bespeaks discrimination.”

Since the ultimate issue is whether the State has discriminated in selecting the defendant’s venire, however, the defendant may establish a prima facie case “in other ways than by evidence of long-continued unexplained absence” of members of his race “from many panels.” In cases involving the venire, this Court has found a prima facie case on proof that members of the defendant’s race were substantially underrepresented on the ve-nire from which his jury was drawn, and that the venire was selected under a practice providing “the opportunity for discrimination.”

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Thus, since the decision in Swain, this Court has recognized that a defendant may make a prima facie showing of purposeful racial discrimination in selection of the venire by relying solely on the facts concerning its selection in his case.

Id. at 94-95, 106 S.Ct. at 1722 (citations omitted). Batson was decided after the trial in the case, and neither counsel nor the trial court had the benefit thereof at the time of trial.

The majority opinion concludes that plaintiff’s objection to the jury selection in the case can only be viewed as an objection to the absence of any Indians on the jury panel ultimately selected. It is true that plaintiff’s counsel made only a cursory argument on the fair representation issue and has not clearly targeted his objections to only the selection and composition of the jury venire or to the exercise by the defense of its peremptory challenges to eliminate both of the American Indians from the selected panel. Notwithstanding those deficiencies in plaintiff’s framing of the issues, however, I am persuaded that plaintiff has met the burden of making a prima facie showing.

This Court may take judicial notice of the fact that plaintiff, as a full-blooded American Indian, was a member of a cognizable racial group. See United States v. Chalan, 812 F.2d 1302 (10th Cir.1987). We may likewise notice the fact, not disputed by defendants, that in 1984 the population of San Juan County (from which the venire was drawn) was approximately forty-five percent Indian.²

There were only two Indians on the ve-nire selected in this case. This means that the total representation of Indians on the venire was less than ten percent. That figure is in dramatic contrast to the forty-five percent population figure and itself raises an inference of possible systematic exclusion. The trial court erroneously believed that the number of Indians in the total population was irrelevant and that only the composition of the registered voter list (the sole source of jurors at the time) need be compared to that of the venire. I believe, this Court should hold that such an overwhelming disparity between the total population and the venire population makes a prima facie showing of underrepresentation.³

Although use of total population figures may legitimately be criticized, I agree with the following conclusion of the California Supreme Court in People v. Harris, 36 Cal.3d 36, 679 P.2d 433, 201 Cal.Rptr. 782, cert. denied, 469 U.S. 965, 105 S.Ct. 365, 83 L.Ed.2d 301 (1984):

The question raised by the difficulty of producing statistics concerning the precise proportion of jury eligibles is who should bear the burden of proof on whether a disparity exists. In our view, although more refined statistics would be preferable if available, when they are not, it is sufficient for the defendant to show a significant disparity based on the use of total population figures. The burden then shifts to the state to either show that when the group total population is reduced to jury eligibles, no under-representation exists, or to justify the underrepresentation by showing “that a significant state interest be manifestly and primarily advanced by those aspects of the jury-selection process such as exemption criteria, that result in the disproportionate exclusion of a distinctive group.” (Duren v. Missouri, 439 U.S. at 367-68, 99 S.Ct. at 670).

People v. Harris, 36 Cal.3d at 54-55, 679 P.2d at 443, 201 Cal.Rptr. at 792; see also Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977).

I would conclude that plaintiffs showing is sufficient to satisfy the second part of the Duren test, “that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community.” Duren, 439 U.S. at 364, 99 S.Ct. at 668.

The majority opinion does not address the third prong of the Duren test; its analysis relies exclusively on the determination that plaintiff failed to satisfy the second prong of Duren. Since I believe that part of the test is met in this case, I will also address the third prong.

The third prong of the Duren test requires that a prima facie case of a violation of the fair cross-section requirement include a showing that the underrepresentation is due to “systematic exclusion of the group in the jury selection process.” Id. Defendants rely on the absence of allegations that some affirmative discriminatory act has resulted in the exclusion of Indians either from voter lists or from venires. The United States Supreme Court, however, has consistently analyzed substantial disparity cases in terms of a “rule of exclusion”:

The idea behind the rule of exclusion is not at all complex. If a disparity is sufficiently large, then it is unlikely that it is due solely to chance or accident, and, in the absence of evidence to the contrary, one must conclude that racial or other class-related factors entered in the selection process.

Castaneda v. Partida, 430 U.S. at 494 n. 13, 97 S.Ct. at 1280 n. 13 (citations omitted). Actual discrimination, lack of good faith, or actual prejudice is not required; an inference of discrimination may be rebutted only by proof that the underrepresented group is less eligible or available for jury duty. See Kairys, Kadane & Lehoczky, Jury Representativeness: A Mandate for Multiple Source Lists, 65 Cal.L.Rev. 776 (1977), and cases cited therein.

Systematic underrepresentation means that a'significant disparity is “inherent in the particular jury-selection process utilized.” Duren, 439 U.S. at 366, 99 S.Ct. at 669. The plaintiff in the present case has demonstrated that the system of selection in San Juan County has resulted in a denial of a jury pool representing a fair cross-section of the community.

Having demonstrated a prima facie case of underrepresentation on the basis of a gross statistical disparity, plaintiff is entitled to the benefit of an inference that the selection method being used causes the un-derrepresentation. “All that need be shown is that the system of selection results in denial of a jury pool representing a fair cross-section of the community.” People v. Harris, 36 Cal.3d at 58, 679 P.2d at 446, 201 Cal.Rptr. at 795. As the California Supreme Court concluded:

[Defendant's use of statistical evidence using total population figures was sufficient to make a prima facie showing of a gross disparity resulting in a violation of defendant’s right to an impartial jury drawn from a fair cross-section of the community. The burden then shifts to the state to rebut the prima facie case. The state may be able to do so by showing through use of figures defining those presumptively eligible for jury service that no disparity of constitutional significance exists, or that even with the use of multiple sources and all other practical means, a certain level of disparity is unavoidable. Finally, it may be able to justify the underrepresentation by showing “that a significant state interest [is] manifestly and primarily advanced by those aspects of the jury selection process ... that result in the disproportionate exclusion.” (Duren v. Missouri, supra, 439 U.S. at pp. 367-368, 99 S.Ct. at pp. 670-671.) In the present case, however, the state has not attempted to rebut the defendant’s proof but has shortsightedly rested its entire argument on the mistaken claim that defendant failed to present a prima facie case.

People v. Harris, 36 Cal.3d at 59, 679 P.2d at 446, 201 Cal.Rptr. at 795.

I agree. The fact situation in this case offers a legitimate and appropriate opportunity for this Court to apply the federal fair representation standard to a civil case. Plaintiff has made a prima facie showing of a violation of the sixth amendment. This Court should find that the blatant underrepresentation of Indians on the ve-nire in this case violated plaintiff’s right to an impartial jury; it is difficult to imagine a more appropriate fact situation for application of the federal fair representation standard.

I would therefore reverse the trial court’s ruling on the propriety of the challenge to the jury venire and remand for a hearing on the fair representation issue, with the burden of proof at that hearing to rest with defendants.

1 . The parties have not advanced, nor has the majority opinion relied upon, a separate state constitutional analysis of this problem. I therefore rely exclusively on federal constitutional analysis.

2 . The population of San Juan County in 1980 was 12,253, 5,600 of which were American Indians. This means that 45.7 percent of the population of San Juan County was American Indian. U.S. Bureau of the Census, 1980 Census of Population, General Population Characteristics, Utah, 11-12 (U.S. Government Printing Office, 1982).

3 . This Court has recently acknowledged the inadequacy of voter registration records as a sole source for jurors and required the counties to adopt a multiple-source selection system.