Adams v. Superior Court , 12 Cal. 3d 55 ( 1974 )

Opinion

CLARK, J.-

The Jury Commissioner of San Diego County seeks writ of mandate compelling respondent superior court to set aside an order declaring Code of Civil Procedure section 198 unconstitutional and directing him to select petit jurors without regard to the section’s one-year residency requirement.¹ We conclude the requirement does not violate due process or the equal protection guarantees of the Fourteenth Amendment to the United States Constitution or article I, sections 11 and 21 of the California Constitution.

A criminal defendant in respondent court challenged the jury panel, claiming the residency requirement was invalid. The trial court sustained the challenge, directing the jury commissioner to furnish a jury panel “from which no jurors have been excluded on residential'grounds” other than the 30-day minimum residence requirement qualifying one to vote.² (Elec. Code, § 203.) The order also directed the jury commissioner to furnish such panels for all future civil and criminal cases.

We must first consider the jurisdiction of the superior court to order the jury commissioner to change his selection procedure. It is argued that since the commissioner, appearing only as a witness, was not a “party” in the criminal proceeding, the court could not properly direct him concerning future trials.

Jury selection is an administrative function of the court, which bears the responsibility of ascertaining if persons proposed are competent to serve. (§ § 204, 204d.) The court is not required to use lists compiled by the commissioner but may select jurors independently (§ 204d)as long as the selection is random (§ 205).³ Section 204b provides that judges of the superior court may adopt supplementary rules for the guidance of a jury commissioner, “who shall at all times be under the supervision and control of the judges of the court.” The jury commissioner is a ministerial officer, acting under direction of the court.⁴

Section 128, subdivision 5, declares that a court has the power to control its ministerial officers “in any manner connected with a judicial proceeding before it....” Since selection of the jury commissioner and juries falls within the jurisdiction and supervision of the court, the jury commissioner’s status as a party in the strict pleading sense is not the issue. Determinations on the procedures of the jury commissioner are within the jurisdiction conferred on the superior courts by sections 128 and 204a through 204d.

In considering the merits we must examine both the rights of the accused in the underlying criminal case and the interests of those who, after residing in the county less than one year, are excluded from jury service.

The accused’s right to a fair trial by a jury of his peers is not infringed by a one-year residency requirement for jurors. (3) The United States Supreme Court in Williams v. Florida (1970) 399 U.S. 78, 100 [26 L.Ed.2d 446, 460, 90 S.Ct. 1893], explained that the jury impartiality provisions of the Sixth Amendment to the federal Constitution require the jury selection process to provide a “fair possibility for obtaining a representative cross-section of the community.” The process of selection must be structured to insure that cognizable classes of citizens are not systematically excluded from jury service. (Peters v. Kiff (1972) 407 U.S. 493, 500 [33 L.Ed.2d 83, 92, 92 S.Ct. 2163]; People v. Jones (1973) 9 Cal.3d 546, 549-550 [108 Cal.Rptr. 345, 510 P.2d 705].)

Within this guideline, there is broad discretion in establishing juror qualification. “It has long been accepted that the Constitution does not forbid the States to prescribe relevant qualifications for their jurors. The States remain free to confine the selection to citizens, to persons meeting specified qualifications of age and educational attainment, and to those possessing good intelligence, sound judgment, and fair character. ‘Our duty to protect the federal constitutional rights of all does not mean we must or should impose on states our conception of the proper source of jury lists, so long as the source reasonably reflects a cross-section of the population suitable in character and intelligence for that civic duty.’ ” (Carter v. Jury Commission (1970) 396 U.S. 320, 332-333 [24 L.Ed.2d 549, 558-560, 90 S.Ct. 518]; fns. omitted.)

Selection from a cross-section of the community insures that prospective jurors will be chosen by court officials without systematic and intentional exclusion of economic, sexual, social, religious, racial, political, or geographical groups. (Thiel v. Southern Pacific Co. (1946) 328 U.S. 217, 220 [90 L.Ed. 1181, 1184-1185, 66 S.Ct. 984, 166 A.L.R. 1412]; People v. McDowell (1972) 27 Cal.App.3d 864, 872-873 [104 Cal.Rptr. 181].) (4) While exclusion of other groups might also be improper (Wither-spoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770]), it is apparent that, before exclusion may be held improper, there must be a common thread running through the excluded group — a basic similarity of attitudes, ideas or experience among its members so that the exclusion prevents juries from reflecting a cross-section of the community.

Measured by this standard, the potential jurors here excluded do not constitute a cognizable class. The group’s membership — cutting across economic, social, religious, and geographical lines — changes day by day, creating a lack of real commonality of interest among the newly migrated. Newcomers as a class have no more (and appear to have less) legally significant commonality than 18- to 20-year-olds, an incognizable class. (United States v. Olson (8th Cir. 1973) 473 F.2d 686, 688; People v. Holland (1971) 22 Cal.App.3d 530, 533-540 [99 Cal.Rptr. 523].)

We are satisfied the defendant’s right to an impartial jury is not impaired by the one-year residency requirement.

In considering the contention that those excluded by section 198 are denied equal protection of the law, we must first determine the appropriate standard for reviewing the statutory classification. A requirement of strict judicial scrutiny is imposed when state action creates a “suspect classification” or impinges on the exercise of a fundamental right, and the state must justify its action by showing the classification is necessary to further a compelliiig state interest. In other cases the traditional test is applicable, requiring only that the state show a rational relationship between the classification and some conceivable legitimate state purpose. (Sail’er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 16-17 [95 Cal.Rptr. 329, 485 P.2d 529, 46 A.L.R.3d 351]; Dunn v. Blumstein (1972) 405 U.S. 330, 336, 339 [31 L.Ed.2d 274, 280-281, 282-283, 92 S.Ct. 995].)

Because we have determined newcomers are not a cognizable class, the classification is not analogous to those based on race or lineage, and is therefore not suspect. (See, e.g., McLaughlin v. Florida (1964) 379 U.S. 184, 192 [13 L.Ed.2d 222, 228-229, 85 S.Ct. 283]; Castro v. State of California (1970) 2 Cal.3d 223, 229 [85 Cal.Rptr. 20, 466 P.2d 244].)

The fundamental right furnishing a basis for invoking strict scrutiny must be explicitly or implicitly guaranteed by the Constitution. (San Antonio School District v. Rodriguez (1973) 411 U.S. 1, 33-34 [36 L.Ed.2d 16, 42-44, 93 S.Ct. 1278].) Rights held fundamental include privacy (Gris-wold v. Connecticut (1965) 381 U.S. 479 [14 L.Ed.2d 510, 85 S.Ct. 1678]), voting (Harper v. Virginia Bd. of Elections (1966) 383 U.S. 663, 667 [16 L.Ed.2d 169, 172-173, 86 S.Ct. 1079]), and interstate travel (Shapiro v. Thompson (1969) 394 U.S. 618 [22 L.Ed.2d 600, 89 S.Ct. 1322]). However, such important interests as adequate housing (Lindsey v. Normet (1972) 405 U.S. 56, 74 [31 L.Ed.2d 36, 50-51, 92 S.Ct. 862]) and education (San Antonio School District v. Rodriguez, supra, 411 U.S. 1, 34-39 [36 L.Ed.2d 16, 43-47]) have been held not fundamental.

While trial by jury is constitutionally implanted in our system of justice, an individual’s interest in serving on a jury cannot be held a fundamental right. The guarantee of the Sixth Amendment is primarily for the benefit of the litigant — not persons seeking service on the jury; and even though lawfully qualified, a citizen may not demand to serve on a jury. At most, the citizen is entitled to be considered for jury service. His interest in becoming a juror is clearly secondary to the interests of the litigants in securing an impartial jury, as shown by the traditional exclusion of prospective jurors for cause or upon peremptory challenge. Jury service is commonly viewed more as a combination of duty and privilege than as a right, sanctions being imposed for failure to appear. (Code Civ. Proc., § 238.)

It is also argued that the durational residency requirement for jurors impermissibly restricts an individual’s right to travel. The Supreme Court cases holding a classification unconstitutional because it impinges on the right to travel involve regulations denying very substantial rights or needs to short term residents. (.Shapiro v. Thompson, supra, 394 U.S. 618 (funds necessary for subsistence); Dunn v. Blumstein, supra, 405 U.S. 330 (right to vote); Memorial Hospital v. City of Maricopa (1974) 415 U.S. 250 [39 L.Ed.2d 306, 94 S.Ct. 1076] (medical care).) In these cases the court has examined two factors: (1) whether the residency requirement would deter migration; and (2) the extent to which the waiting period served to penalize a person for exercising the right to travel. (Memorial Hospital v. County of Maricopa, supra, 415 U.S. at pp. 256-262 [39 L.Ed.2d at pp. 314-317].)

There is neither evidence nor reason to believe that one year’s exclusion from jury duty is a factor materially affecting a person’s decision to migrate, and any penalizing effect of the durational residency requirement is inconsequential. Thus, the requirement has insufficient effect on the right to travel to compel strict judicial scrutiny.

The strict test being inapplicable, the residency requirement for jurors must be upheld if there is any rational relationship between the requirement and some legitimate state objective. (7) The Legislature is presumed to have acted constitutionally, and statutory classifications may be set aside only if no ground can be conceived .to justify them, and they are wholly irrelevant to the achievement of the state’s objective. (McDonald v. Board of Election (1969) 394 U.S. 802, 809 [22 L.Ed.2d 739, 745-746, 89 S.Ct. 1404]; McGowan v. Maryland (1961) 366 U.S. 420, 425-426 [6 L.Ed.2d 393, 398-399, 81 S.Ct. 1101].)

The significance of jurors’ residency is established by the Sixth Amendment “vicinage” requirement that jurors be chosen from the district where the crime was committed. (People v. Jones, supra, 9 Cal.3d 546, 549 et seq.) The. Ninth; Circuit Court of Appeals pointed out in upholding the one-year residency requirement for federal jurors (28 U.S.C.A. § 1861. et seq.) that one of the historic virtues of the jury, being selected from the community, is acquaintance with local conditions, customs and mores. (United States v. Moss (9th Cir. 1972) 468 F.2d 1213, 1215-1216; United States v. Dupcan (9th Cir. 1972) 456 F.2d 1401, 1406, vacated on other grounds in 409 U.S. 814 [34 L.Ed.2d 72, 93 S.Ct. 161].) Moreover, in some cases jurors will be instructed to apply a local standard (Miller v. California (1973) 413 U.S. 15, 30-34 [37 L.Ed.2d 419, 434-436, 93 S.Ct. 2607]), making.it important to obtain persons who have had time to become familiar with the. community. The Legislature could properly conclude that such objectives are served by a one-year residency requirement for California jurors.⁵

Let a peremptory of mandate issue as prayed.

Wright, C. J., McComb, and Burke, J., concurred.

1 Unless otherwise specified, all statutory references will be to the Code of Civil Procedure. Section 198 provides in pertinent part: “A person is competent to act as a juror if he be: 1. A citizen of the United States of the age of 18 years who shall have been a resident of the state and of the county or city for one year immediately before being selected and returned.”

2 Such a jury was selected and the defendant was tried and acquitted.

3 The randomness of the selection procedure is not an issue.

4 Each judicial district has the option of appointing a jury commissioner who serves “at the pleasure of the judge of the superior court or a majority of the judges thereof” (§ 204a), or of compiling lists and selecting a panel without the aid of such a commissioner.

5 This case is distinguishable from our cases holding invalid durational residency requirements for voting and candidacy for public office (Young v. Gnoss (1972) 7 Cal.3d 18 [101 Cal.Rptr. 533, 496 P.2d 445]; Thompson v. Mellon (1973) 9 Cal.3d 96 [107 Cal.Rptr. 20, 507 P.2d 628]), since they involved fundamental rights.