Appendices for “Polltax”

Appendices for “Polltax”

Appendix 1a, Selected Citations On Calling People For Jury Duty:
UNITED STATES, 28 U.S.C. § 1863 (b)(2); ARKANSAS: ACA SEC. 16-32-103;
CALIFORNIA, Code of Civ. Proc. § 197; COLORADO: 13-71-107; CONNECTICUT, Conn. Gen. Stat. Ann. §§ 51- 222a (b) & (c); DELAWARE: 10 Del C. 4507; GEORGIA: 15-12-40; FLORIDA, Fla. Stat. Ann. § 40.01; ILLINOIS, Courts, ch. 705, 305/1a & 310/2a; INDIANA, Ind. Code 33-4-5.5-14; IOWA, Iowa Code Ann. § 609.1; KENTUCKY: KRS sec. 90A.040; LOUISIANA, La. C.Cr.P. Art. 408.1; MAINE, Rev. Stat. Annot., Title 14, §§ 1252-A; MARYLAND: Md COURTS AND JUDICIAL PROCEDINGS Code Ann sec, 8-202; MASSACHUSETTS, Mass. Gen.Laws, chapter 234, § 4 & chapter 234A, § 10; MICHIGAN, Mich. Comp. Laws Ann. § 600.1304; MINNESOTA, Minn. Stat. Ann. 593.36; MISSISSIPPI, Miss. Code Ann. § 13-5-8; MINNESOTA, Minn. Stat. Ann. 593.36; NEVADA, Nev. Rev. Stat. 6.045; NEW HAMPSHIRE: RSA, Title 51, 500-A:1 IV and A:2; NEW JERSEY, Title 2B: Court Organization and Civil Code, 2B: 20-2; NORTH CAROLINA, Laws of North Carolina § 9-2; NORTH DAKOTA: laws of North Dakota, 27-09.1-05; OHIO, Ohio Rev. Code Ann. § 2313.06; OKLAHOMA, Okla. Stat. Anno., Jurors, §18 B. 1; PENNSYLVANIA, Judiciary & Judicial Procedure, § 4521 (a); RHODE ISLAND, R.I. Gen. Laws §9-9-1; SOUTH CAROLINA, S.C. Code § 14-7-14; TENNESSEE: Tenn. Code Ann. § 22-2-302; TEXAS, Tex. Codes Ann.-Gov. 62.001 (1) & (9); UTAH Code ann. § 78-46-4(4); VIRGINIA, Va. Code § 8.01-345; WASHINGTON, RCW § 2.36.054; WEST VIRGINIA: West Virginia law, WVC 52-1-5; WISCONSIN: Wis. Stat § 756.04; WYOMING, Wyo. Stat. § 18-3-402 (xix).

Appendix 1b, Possible Sources For Calling People For Jury Duty: (Per New York law) voter registration lists, utility subscribers, licensed motor vehicle drivers, registered owners of motor vehicles, recipients of, or applicants for, medical assistance, recipients of, or applicants for, welfare benefits, recipients of, or applicants for, unemployment benefits, volunteers; (per Texas law) citizens who holda personal identification card or certificate; (per Connecticut law) personal income tax return records; (per Virginia law) personal property tax books, telephone directories; (per New Jersey law) filers of
homestead rebate application returns; (per Pennsylvania law) persons listed in city, municipal, and similar directories, persons who pay taxes or are assessed for taxes imposed by any political subdivisions, persons in the applicable county participating in any State, county or local program authorized by law and, to the extent such names are available, persons participating in any federal program authorized by law, persons who are on school census lists; (other possible sources) students, people accused of driving without a license, and real property owners.

Appendix 2
ELECTORAL PARTICIPATION AND NON-PARTICIPATION IN NEW JERSEY
Prepared for New Jersey Department of State Election Division
Prepared by The Eagleton Poll, The Eagleton Institute of Politics
Rutgers, The State University, April 1981
TABLE 3
MAIN REASON GIVEN FOR NOT BEING REGISTERED TO VOTE
Percent Number
Ineligible [24 of 39 reportedly due to change of address] 33% 39
. . .
To avoid jury duty 6 8
. . .
100% 118 Total

PORTION OF ARTICLE FROM THE LOS ANGELES TIMES DATED SUNDAY,
JANUARY 9, 1977 (Part I, page 7)
WHY THEY DIDN’T VOTE
* * *
When those who failed to register were asked why, they responded as follows (Some gave more than one answer):
General apathy or disinterest 58% . . . . . . . . . . . . . . 58
Don’t believe, little or no faith in political system . . . . 26
Don’t understand politics, . . . . . . . . . . . . . . . . . . 9
Don’t want to be called for jury duty . . . . . . . . . . . . 5
Illness, in hospital . . . . . . . . . . . . . . . . . . . . . 3
All other mentions . . . . . . . . . . . . . . . . . . . . . 13
* * *
Appendix 3, Supplementing the main memorandum.
 
Preface
A. The bad State procedure is neither the ONLY nor the BEST way to achieve fair jury trials.
B. Other Points
Preface
The analysis in the main memorandum supports the claim that the only way voter lists could be used for selection of people for jury duty would be to both use additional lists and eliminate duplications. Other factors strengthen that claim and also strengthen the claim that to better protect the rights of citizens, voter lists should not be used at all.
A. The bad State procedure is neither the only nor the best way to achieve fair jury trials.
A1. To better protect the rights of citizens, voter lists should not be used at all. Since this would reduce the number of potential jurors by the number of voters who are not on other lists, we now have the question of whether the alternative is reasonable. In many states we are comparing the alternative of many different sources, but no voter lists, with only the voter lists or the voter lists with just a few other sources. The alternative is reasonable because the Supreme Court (unfortunately) narrowly interprets the degree of community representation required in juries and because there is a heavy burden of justification on the State.
There are quite a number of decisions that uphold jury selections against the claim that they do not sufficiently represent the community. Since they reach that conclusion by narrowly interpreting the degree of community representation required in juries, said conclusion argues against the state practice of using voter lists to select jurors. Taylor v. Louisiana, 419 U.S. 522, 538 (1975) said “. . . we impose no requirement that petit juries actually chosen must mirror the community . . . .”) It follows that there are some degrees of reducing the extent to which juries do resemble the community that do not run afoul of Duncan v. Louisiana, 391 U.S. 145 (1968). Therefore, there are reasonable alternatives. Lockhart v. McCree, 476 U.S. 162 (1986), in which the Court reinstated a conviction, said (at page 174) “. . . groups defined solely in terms of shared attitudes that would . . . substantially impair members . . . from performing one of their duties . . . are not ‘distinctive groups’ for fair-cross-section purposes,” even though that duty (deciding after conviction, if the death penalty was to be imposed) was not to be performed by the jury in question. In Akins v. Texas, 325 U.S. 398, 65 S. Ct. 1276 (1945),some people were disqualified who would not have been if they had owned real property. (See qualification 2 of the applicable statute law, quoted at footnote 3 of the decision, at page 402 (page 1279 of Supreme Court Reports).) That decision said “Fairness of selection has never been held to require proportional representation of races upon a jury.” (Tollett v. Henderson, 411 U.S. 258, 262 (1973) and Patton v. State of Mississippi, 332 U.S. 463, 466, 92 L. Ed. 76,79 (1947) modify Akins without detracting from the principle of Akins.) See also Fay v. New York, 332 U.S. 261, 284, 67 S. Ct. 1613, 1626 (1947) and Brown v. Allen, 344 U.S. 443 (1953). Carter v. Jury Commission, 396 U.S. 320, 330 (1970) notes that juries need not have proportional representation. At pages 327 and 328 of Carter we see the juries were very far from proportional. Blacks in 1967 were 32% of potential voters, compared to an estimated 65% of the population.
A2. The citizen summoned should not be given the burden of either proving the adequacy of the alternatives or even rebutting factually any offers of proof by the Commissioner. In none of the cases concerning conflict of constitutional principles has any state’s violation of fundamental personal liberties been found justified by another constitutional principle. There is a “heavy burden of justification [that] is on the State” per Dunn v. Blumstein, 405 U.S. 330, 343, 31 L. Ed. 2d 274, 284, 285 (1972). That burden is impossible to meet because of the rule of Taylor v. Louisiana, 419 U.S. 522, 538 (1975), supra, Akins v. Texas, 325 U.S. 398, 403, 65 S. Ct. 1276, 1279 (1945), supra, et al. If one person is erroneously but accidentally omitted from the jury roles that is not grounds for voiding court proceedings. Any accidental skewing of a panel can be compensated for by the requirement that jurors who would allow their prejudices to influence their decisions are ineligible to sit. But all voters are allowed to vote their prejudices, per Dunn v. Blumstein, 405 U.S. 330, 343, 31 L. Ed. 2d 274 (1972), supra, and it has never been suggested that it is proper to illegally disenfranchise some voters as long as the number is not too great. Thus, after people are called for jury duty, the jury selection process should alleviate the effect of any racial imbalance, by disqualification for cause. Furthermore, in all states some imbalances of juries cannot be aggravated by peremptory challenges of either a prosecutor or a litigant. (See Batson v. Kentucky, 476 U.S. 79 (1986) and J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S. Ct. 1419 (1994), respectively. (Neither can a criminal defendant so aggravate an imbalance in any state that follows People v. Kern, 75 N.Y. 2d 638 (1990).)
A3. Cases (United States v. Cecil, 836 F.2d 1431 (4th Cir.), cert. denied, 487 U.S. 1205 (1988), United States v. Lewis, 10 F.3d 1086 (4th Cir. 1993), United States v. Huber, 457 F. Supp. 1221, 1232 (S.D.N.Y. 1978),United States v. Ashley, 54 F.3d 311, 314 (7th Cir. 1995), and cases cited there) say that the constitutional guarantee of a fair jury trial is not violated by selecting jurors from voter lists even if they are not the most representative. That is not inconsistent with the proposition that the constitutional right to vote is violated by selecting jurors from voting lists. To believe it is inconsistent is like believing the basic fallacy that if every bear is a mammal then every mammal is a bear. See, also, analysis of United States v. Huber, 457 F. Supp. 1221, 1232 (S.D.N.Y. 1978),supra, at

the main memorandum, point C2. Since there may be judges anywhere who are challenged by

logic, it may help in some circuits to point out cases that differ with these cases. [In any event, since these cases are superfluous in light of Supreme Court cases on the need-not-mirror principle, it may be best not to raise these cases if the opposition doesn’t.] Probably most, and possibly all, differ with Broadway v. Culpepper, 439 F.2d 1253 (5th Cir., 1971). 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. When racial statistics are unavailable, some of these cases can be shown to be contrary to Judge Gewin, writing on behalf of a Committee on the Operation of the Jury System, as cited with approval in a dictum in United States v. Cecil, 836 F.2d 1431, 1447 (4th Cir.), cert. denied, 487 U.S. 1205 (1988) supra. He notes “. . . the unlikelihood that a registration list containing only half the eligible voting age population could produce a faircross section.” Official statistics list the many states and counties where less than half of the voting age citizens vote. 28 C.F.R. Appendix to Part 51.

A4. For the purpose of fair trials alone, the Texas system is the best, but both sides must concede that other systems are not illegal merely because they aren’t as good. And while the system of other sources and elimination of duplications is best, it is always debatable which state’s other sources are the most comprehensive. In any state must every one of its trials, on whatever type of issue, also have a determination, before, during, or afterwards, of demographics to determine if its mix is the best? Suppose a federal court of appeals, despite the arguments above and in

the main memorandum said that use of voter lists alone is the only way to assure a fair state trial in, say, South Carolina. It would seem then that it would also have to say that in any jury trial in Virginia in which possibly no voters list was used (since Virginia uses multiple lists but state law does not require elimination of duplications) the verdict is suspect. Similar pairings within one circuit are Arkansas and Illinois, Nevada (which doesn’t use alternate lists in every district even though its legislature authorizes it, per Howard v. State, 84 Nev. 599, 446 Pac. 2d, (1968)) and California, and Wyoming and Utah. (The same argument, with sound logic, could also be made on behalf of objecting voters in said states of Virginia, Illinois, and California and Utah.)

B. Other Points
B1. Conflicting constitutional rights need not be weighed against each other. In Dunn v. Blumstein, 405 U.S. 330, 337, 31 L. Ed. 2d 274 (1972) the Supreme Court said that a law that violates a fundamental right must be necessary to promote the state interest. The statute we complain of is not necessary because the end of a fair trial can be achieved in an alternative way, by the Texas or Oklahoma systems. However, if they had to be weighed, voting rights must prevail because of its great importance and because juries need not mirror the community. See Taylor v. Louisiana, 419 U.S. 522, 538 (1975), supra, and other cases discussed at Point A1, supra. Therefore, 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 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).

B2. Here are Miscellaneous Points re Bershatsky v. Levin.
B2a. Bershatsky v. Levin, 99 F.3d 555 (1996), cert. den., 521 U.S. 1105 (6/23/97), conflicts directly with the test in Dunn v. Blumstein, 405 U.S. 330, 337, 31 L. Ed. 2d 274 (1972), supra, by finding relevant the overinclusiveness of alternative methods of selecting people. While alternative lists include significant numbers of non-citizens, this is relevant only to the convenience of the Commissioner and thus concern for it is contrary to the Dunn test. They can be readily eliminated in the jury selection process. “... Constitutional deprivations may not be justified by some remote administrative benefit to the State,” per Harman v. Forssenius, 380 U.S. 528 (1965.) See also cases cited therein for that principle. In fact, the questionnaire sent to Ms. Bershatsky by the Commissioner asks if she is a citizen of the United States, according to her allegations. (The voting list also is overinclusive, since New York’s Judiciary Law, § 510 requires a proficiency in the English language for jurors, which is not a requirement for voters.)

B2b. The Bershatsky court, in support of its holding, cited Taylor v. Louisiana, 419 U.S. 522, 538 (1975) and Lockhart v. McCree, 476 U.S. 162 (1986), supra. As noted at point A1, supra, these cases argue for Ms. Bershatsky’s position. Neither of these cases upholds the right of a state to burden persons with the obligation of jury duty as a result of their voting. Neither do any of the other cases cited at point A1, supra.
Similarly, the holdings of lower court cases like United States v. Cecil, 836 F.2d 1431, 1447 (4th Cir.), cert. denied, 487 U.S. 1205 (1988), supra, that rejected arguments that juries were improper because of the use of voter lists, which were significantly racially skewed, (unfortunate as they may be for fairness of jury trials) support my contention, because the more lax the requirement of representativeness of juries, the greater the case for there being a reasonable alternative. Yet both federal courts cited Cecil and similar cases against the plaintiff. (The courts in Bershatsky apparently thought Cecil was particularly relevant to the Bershatsky situation because it involved both juries and voting and the system was upheld. That would be the basic fallacy mentioned at point A3, supra.)
B2c. 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), supra, and Whatley v. City of Vidalia, 399 F.2d 521 (5th Cir. 1968), supra, in different contexts.
B2d. 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 sothat 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.)

B2e. The plaintiff-appellant resided in and voted in Kings County, New York, and sued the Defendant-Appellee in his capacity of commissioner of jurors for the county because he had called her for jury duty. Kings County is one of the counties in which less than half of the voting age citizens vote, per 28 C.F.R. Appendix to Part 51. The appeal to the court of appeals contains an allegation stating “… Kings County is a county in which less than half of the voting age citizens vote. The likelihood of having evidentiary support of this fact is based on 28 CFR Appendix to Part 51.”
B2f. Before May 31, 1996, the date the brief for this case was timely filed with the Second Circuit, that court cited the opinion of the Eastern District in this case, giving the appearance of prejudging this 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. The result of this was especially unfortunate since the District Court failed to allude to many arguments made before it in Ms. Bershatsky’s brief.
B3. Since the laws creating the Pennsylvania and South Carolina systems are not separable, (see Thiel v. Southern Pacific Co., 328 U.S. 217, (1946)) if any voter is called for jury duty under those statutes and, before serving, demands not to serve, on the grounds of voting rights, that call to jury duty must be cancelled unless the state shows that that voter’s name was selected from a source other than voters’ lists. (On separability, generally, see Williams v. Standard Oil Co., 278 U.S. 235 (1929).)
B3. Eliminating duplications is not difficult. Several states do it. But even that small task can be passed on to the individual. The state need only assign a different number to each source for jury duty and, when informing individuals of selection for jury duty, inform them of the list and which list they were selected from and that if they are on a lower numbered list they can have the selection voided.

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