BERSHATSKY V. LEVIN, 99 F.3D 555, Part II

January, 2008

SHARE BRIEFS***--Donald Marcus, editor***
BERSHATSKY V. LEVIN, 99 F.3D 555 (1996), CERT. DEN., 521 U.S. 1105 (6/23/97), BRIEF OF DONALD MARCUS.

Part II
There is other evidence that the New York practice not only penalizes voting but also makes juries less representative than the ideal. A significant number of people exercise their option not to vote in order to reduce the likelihood of jury duty, according to polls conducted by Eagleton Poll, “Electoral Participation and Non-participation in New Jersey”, 1981, Eagleton Institute of Politics, Rutgers University, New Brunswick, New Jersey, 08901 and the Los Angeles Times January 9, 1977, Part One, Page 1, Column 3 (see Appendix E and F), both cognizable by the Court, per Muller v. Oregon, 208 U.S. 412, 421 (1908), perhaps because it is extremely unlikely that any election will be decided by a single vote (especially in politically monolithic Kings County). Blue collar workers and poorer workers are more likely to suffer economically from jury duty and would therefore be more likely not to vote.
Point 7: Constitutuional Law: Voting rights: Other rights, even the most basic, are illusory if the right to vote is undermined.
B. If Conflicting Constitutuional Rights Had To Be Weighed Against Each Other, Voting Rights Must Prevail, Per Several Opinions Of This Court.
Conflicting constitutional rights need not be weighed against each other, since the goal of fair juries “can be more narrowly achieved.” Shelton v. Tucker, 364 U.S. 479 (1960), supra. However, if they had to be weighed, voting rights must prevail because of its superior position and because juries need not mirror the community, as noted in Point I (C). So, if underinclusiveness of alternative lists without voter lists had been proven it would be irrelevant.

Special importance attaches to the electoral franchise. In Reynolds v. Sims, 377 U.S. 533 (1964), supra, the Court said “Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” (Emphasis added.) In Baker v. Carr, 369 U.S. 186 (1962), another malapportionment case, Justice Clark of the Supreme Court noted that “the people of Tennessee are stymied and without judicial intervention will be saddled with the present discrimination in the affairs of their state government.” In Wesberry v. Sanders, 376 U.S. 1, 17, 11 L. Ed. 2d 481 (1964), the Court said “other rights, even the most basic, are illusory if the right to vote is undermined.” Other cases that note the special importance of the electoral franchise are Kramer v. Union Free School District No. 15, 395 U.S. 621 (1969) (whose holding is restricted by Ball v. James, 451 U.S 355 (1981) in a way irrelevant to our general question), Hill v. Stone, 421 U.S. 289 (1975), Dunn v. Blumstein, 405 U.S. 330 (1972), supra, (at page 336) and cases cited there, Kusper v. Pontikes, 414 U.S. 51 (1973), and Yick Wo v. Hopkins, 118 U.S. 356 (1886).
Point 8: Voting Rights: 42 U.S.C. § 1973i, subsection (b) should be interpreted broadly.
C. The Second Circuit Differs From Two Cases Outside Their Circuit By Narrowly Interpreting 42 U.S.C. § 1973i, Subsection (b).
42 U.S.C. § 1973i, subsection (b) provides “No person, whether acting under color of law or otherwise, shall intimidate, threaten or coerce . . . any person for voting . . .”, making it illegal for a state official to use voter registration rolls as a source of names for jury duty. If the voter called by the state relies on income from a daytime job and that income stops, this economic hardship constitutes “coercion” under the federal statute. In addition, some workers have no job security, so they may fear they will find their job given permanently to their replacement when they finish jury duty. (Judiciary Law, § 519 attempts to prevent such discharge, but it does not require employers who violate the law to pay attorneys’ fees of successful plaintiffs.) This situation certainly discourages some people from voting. It follows from this that federal statutory law makes it illegal for a state official to use voter registration rolls as a source of names for jury duty. By narrowly interpreting 42 U.S.C. § 1973i, subsection (b), the Second Circuit differs from two cases outside their circuit. See Jackson v. Riddell, 476 F. Supp. 849 (N.D. Miss. 1979) and Whatley v. City of Vidalia, 399 F.2d 521 (5th Cir. 1968), in different contexts.
Points 9 and 10.: Point 9: Federal statutes: Federal statutes do not impliedly approved parallel state laws. Point 10: Constitutional Law: State legislation can be found contrary to the Constitution without finding similar federal procedures unconstitutional,
D. Finding Federal Jury Selection Legislation Relevant To The Instant Case Is Contrary To Holdings Of This Court.
The opinion below refers to congressional preference for voter registration lists as a source for prospective jurors shown in 28 U.S.C. § 1863(b)(2) (1992). If the intended import is that the state law is impliedly approved by parallel federal law, that is contrary to South-Central Timber Dev. v. Wunnicke, 467 U.S. 82. If the import is that the state legislation cannot be found contrary to the Constitution without finding the federal procedures unconstitutional, that, too, is unfounded. There are several grounds for distinguishing the two. One such ground lay in an argument that does not apply to federal legislation, namely the one concerning Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945), supra. See also “other facts” (1) and (2) and Election Law, § 5-400 which indicate that the New York tail is waving the national dog.

Federal law requires states to offer jury trials to criminal defendants. The requirement does not stem from Amendment VI, since the Bill of Rights does not apply to the states. Barron v. The Mayor and City Council of Baltimore, 7 Pet. 243, 8 L. Ed. 672 (1833). However, Amendment XIV does impose that requirement. Duncan v. Louisiana, 391 U.S. 145 (1968). That imposition is less strict than Amendment VI’s requirements for grand and petit juries. See the opinion of Justice Powell in Apodaca v. Oregon, 406 U.S. 404, 32 L. Ed. 2d 184, which was necessary to the result.
Also, Reynolds v. Sims, 377 U.S. 533 (1964), supra, relies on Baker v. Carr, 369 U.S. 186 (1962), supra, which relies on the Supremacy Clause of Article VI. There is another possible distinction. I can find no case, either way, as to whether states’ due process requirements are greater than that of the federal government because the former is specified in the Fourteenth Amendment while the latter is merely implied by the Fifth Amendment.
E. The Application Of United States v. Cecil To This Case, Which Arises In A County Where Less Than Half The Eligible Voters Vote, Is Contrary To A Holding Of The Fifth Circuit, Wording Of The Cecil Court, Itself, And Reason.
Point 11: Juries: Jury pool inadequacy: A Jury is inadequate if 40% of those eligible for jury duty were not in the pool.
In Broadway v. Culpepper, 439 F.2d 1253 (5th Cir. 1971), a lower court was mandated to correct the inadequacy of the number of people available for jury duty because 40% of those eligible were not in the pool (because unanswered questionnaires were not followed up). United States v. Cecil, 836 F.2d 1431 (4th Cir.) cert. denied, 487 U.S. 1205 (1988), supra, quotes approvingly Judge Gewin, writing on behalf of a Committee on the Operation of the Jury System, who notes “ . . . the unlikelihood that a registration list containing only half the eligible voting age population could produce a fair cross section”, as noted in Point II A. Since less than half of eligible voters vote in Kings County, according to 28 C.F.R. Appendix to Part 51, the Second Circuit’s decision is contrary to those sensible sources. In this case the Second Circuit supported its decision with citations of cases, including United States v. Cecil, 836 F.2d 1431 (4th Cir.), cert. denied, 487 U.S. 1205 (1988), supra, and United States v. Lewis, 10 F.3d 1086 (4th Cir. 1993), that rejected arguments that juries in federal courts were improper because of the use of voter lists. Using these authorities here is inconsistent with the holding of Broadway v. Culpepper, 439 F.2d 1253 (5th Cir., 1971), supra, and Judge Gewin’s dictum. United States v. Lewis, 10 F.3d 1086 (4th Cir. 1993), supra, in holding a 20% racial disparity irrelevant is contrary to United States v. McDaniels, 509 F.2d 825 (5th Cir. 1973), cert. denied, 423 U.S. 857.

Point 12: Juries: The right of people to serve on a jury was not as significant as their right to vote.

More relevant to the issue involved when any person objects to being called to jury duty because of voting is the finding in United States v. Huber, 457 F. Supp. 1221, 1232 (S.D.N.Y. 1978), supra, when the defendant argued that he could stand in the shoes of the possible jurors and the court rejected that argument, in part because the right of these people to serve on a jury was not as significant as their right to vote. (The test for protection of voters is more rigorous than the test for selecting venire people, at least with respect to practices that were not intended to be discriminatory. 42 U.S.C. § 1973 prior to its 1982 amendment simply forbade states and localities to deny or abridge voting rights “on account of race or color.” Subsequent legislation, Voting Rights Act Amendment of 1982, broadened the law to forbid procedures that result in diminished opportunities for members of any race to elect representatives regardless of intent. Even without the 1982 amendment, by federal law intent is irrelevant to some governmental action regarding voting in Kings County because of the degree of non-voting and non-registration by voting age citizens there. 28 C.F.R. Appendix to Part 51, supra; Rome v. United States, 446 U.S. 156 (1980).) None of these cases uphold the right of a state to burden persons with the obligation of jury duty as a result of their voting.
III.

before the brief for this case was filed with the second circuit that court cited the opinion of the eastern district in this case, giving the appearance of prejudging this case.
Point 13: Courts: Courts should not give the appearance of prejudging a case.
In a per curiam decision, dated March 8, 1996, the Second Circuit, in Schanbarger v. Macy, 77 F.3d 1424 (2d Cir. 1996), cited the opinion of the Eastern District in this case, before May 31, 1996, the date the brief for this case was timely filed with the Court of Appeals. This gave the appearance of prejudging this case. This was especially damaging since the District Court failed to allude to many arguments made in Ms. Bershatsky’s brief.
CONCLUSION
For the reasons set forth above, a writ of certiorari should issue to review the decision and order of the Court of Appeals in this matter.
Respectfully submitted,
DONALD MARCUS
Counsel of Record

Addendum: After the above petition was submitted I noted what follows.
Point 14: Juries: Justice Frankfurter said making day laborers serve jury duty is not conducive to justice and is economically oppressive.

The Second Circuit opinion starts off its opinion in Bershatsky by quoting, at page 556, Felix Frankfurter, in Thiel v. Southern Pacific Co., 328 U.S. 217, 231 (1946), supra, but leaving out six words, giving the quotation the exact opposite meaning of what Frankfurter said. The omitted words were “it is easy to say that”, which in that case had almost the same effect as leaving out “not.” The Second Circuit, quoting the lower court, with neither saying “it is easy to say that”, said:
“ ‘jury duty should be regarded as a patriotic service[;] . . . all public-spirited persons should willingly sacrifice pecuniary rewards in the performance of an obligation of citizenship,’ ” id . at 39 (quoting Thiel v. Southern Pacific Co., 328 U.S. 217, 231 (1946) (Frankfurter, J., dissenting) (internal quotation marks omitted)). We affirm substantially for the reasons stated in the district court’s opinion.
In Thiel, Frankfurter (dissenting) said:
With respect to the item last-mentioned, IT IS EASY TO SAY THAT jury duty should be regarded as a patriotic service, and that all public-spirited persons should willingly sacrifice pecuniary rewards in the performance of an obligation of citizenship. (Emphasis added to show the words omitted by the Court of Appeals.)
He continues:
With that statement I am in full accord, but it does not solve the difficulty. Adequate provision for one's family is the first consideration of most men.
His opinion goes on to say it is proper to exempt day laborers from jury duty so that they should not have to make a great sacrifice.
(In Thiel, the prospective voters had not been selected from voters’ lists, so the holding is not relevant, here.)

***Editor’s comment:  The most significant points of the brief are Points 1 and 4.

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