# Rubio v. Superior Court

> California Supreme Court · April 24, 1979 · 24 Cal. 3d 93

URL: https://www.frixlaw.com/law-library/cases/9535629

## Case

- **Full name:** RALPH RUBIO, Petitioner, v. THE SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent; THE PEOPLE, Real Party in Interest
- **Court:** California Supreme Court
- **Decided:** April 24, 1979
- **Citations:** 24 Cal. 3d 93; 154 Cal. Rptr. 734; 593 P.2d 595; 1979 Cal. LEXIS 245
- **Precedential status:** Published
- **Opinion:** Concurrence by Newman
- **Judges:** Mosk, Tobriner, Newman
- **Cited by:** 56 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9535629

## Opinion text

NEWMAN, J.
— I concur with Justice Tobriner’s dissent, except that I would cite only the California and not the federal Constitution. In addition:
I
Article I, section 8 of the California Constitution states, “A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin.” In this case individuals were excluded from jury service because of national origin.
Is jury service “a vocation, or employment”? I think so. It would not be strange to say that a friend or colleague “has been busily employed as *118 juror for the past two weeks.” Indeed many kinds of activities properly are regarded as employment. Article I, section 8 covers seasonal employment, part-time employment, volunteer employment, employment at a polling booth, moonlighting, and innumerable other tasks. In 1974, when they revised section 8, the electors pronounced that persons should not be disqualified from entering or pursuing those tasks because of sex, race, creed, color, or national or ethnic origin. I see no reason for adopting a restrictive view as to what was meant by “employment.”
Furthermore, does not section 8 imply that “entering or pursuing . . . employment” is a fundamental right? On their face the words seem to complement the words in article I, section 1 that proclaim inalienable rights of “enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” All those rights are fundamental, I believe.
II
Issues regarding the use by courts of “sociological facts” are often perplexing. In this case I question three conclusions of fact that to me seem insufficiently supported. The first is in footnote 13 of the majority opinion, which declares that “surely an ex-felon’s experience of incarceration is more likely to affect his deliberations as a juror than his vote as an elector.” I find no evidence anywhere to support that conclusion.
Second, I do not agree that convicted misdemeanants who have served time in jail or youthful offenders who have been confined in CYA custody or people who have suffered involuntary commitment in mental institutions are individuals whose “experiences of loss of personal liberty followed by social stigmatization” enables them adequately to represent the arguably unique viewpoints of ex-felons. (Ante, p. 99.)
Third, I doubt that naturalized citizens, because (1) once “they shared both the disabilities and the resulting outlook of today’s resident aliens,” and (2) “still cony with them the deep imprint of their former status,” will emphathetically respond to the current travails of unnaturalized defendants. (Ante, p. 100.) Is that not a little like saying that adults empathize representatively with children because they too were kids once?
The approach that should govern here is that articulated in the dissenting opinion in Adams v. Superior Court (1974) 12 Cal.3d 55, 66
*119 [ 115 Cal.Rptr. 247 , 524 P.2d 375 ], as follows: “No authority is cited, and I have found none, either to support or refute petitioner’s ipse dixit declaration that newcomers have the same cross-section of views and backgrounds as more settled residents. It is more probable, however, that those who have residence of less than one year may not yet have irrevocably strong ties to the community; their involvement in local employment, business, homeownership, club or church activities, or school or neighborhood associations is far less than that of long-term residents. Whatever osmotic influence these community roots may have ultimately on one’s outlook and perspective, newer residents are potentially different. To exclude them is to limit the structure of the panel as a genuine cross-section of the community; if there is a difference, that difference is excluded.” (Italics in original.)
If that view had been adapted to this case the following comment in the letter brief of amicus California Rural Legal Assistance, filed here on October 16, 1978, might have influenced us decisively: “[T]he resident alien population in California is a substantial portion of the state’s overall population and is principally composed of racial and ethnic minorities____ Thus, in California more than in most other states, the resident alien exclusion removes a sizeable and cognizable class from the workings of our criminal justice system, a class which in California has historically been subject to discrimination against them both because of their alienage and their race.” (Italics added.)
Ill
My final comment is more technical. Article VII, section 8, subdivision (b) of the California Constitution provides, “Laws shall be made to exclude persons convicted of bribery, perjury, forgery, malfeasance in office, or other high crimes from office or serving on juries.” Those words need to be contrasted with the words of Code of Civil Procedure section 199, subdivision (b), which disqualify a person from trial juries if she or he “has been convicted of malfeasance in office or any felony or other high crime.” The Legislature apparently regarded all felonies as high crimes. Yet, as the majority opinion here notes, Otsuka v. Hite (1966) 64 Cal.2d 596 [ 51 Cal.Rptr. 284 , 414 P.2d 412 ] declared that “the term ‘high crimes’ should be deemed to refer to criminal conduct evidencing the kind of moral corruption and dishonesty inherent in the listed offenses of ‘bribery, perjury, forgery, malfeasance in office.’ ” (Id. at p. 608.)
*120 Whether or not they are “fundamental,” the rights to serve in public office and on juries are clearly treated as important rights in the California Constitution. I do not agree that nothing in article VII, section 8, subdivision (b) restricts the power of the Legislature to add classes of ex-felons to those specified in the section.
Why does the majority opinion err in stating that “[njothing . . . limits the power of the Legislature to add further classes of ex-felons to those mentioned, or indeed to exclude all such persons from jury service if it is deemed appropriate ...”? (Ante, p. 103.) The answer may appear when we think about “[public] office,” for the majority reasoning regarding section 8, subdivision (b) applies to exclusion from office as much as it applies to exclusion from juries. Yet could we possibly conclude that nothing in section 8, subdivision (b) limits the legislative power to add classes of ex-felons via statutes prescribing qualifications for public office? That question indeed could arise in future cases, but this court’s analysis in Otsuka implied that the Legislature is restricted to “criminal conduct evidencing the kind of moral corruption and dishonesty inherent in the listed offenses ....” (Id., p. 608.)
Could the Legislature, for instance, disqualify all ex-felons from membership in the Legislature? Article IV, section 2, subdivision (c), qualifies everyone who “is an elector and has been a resident of the legislative district for one year, and a citizen of the United States and a resident of California for 3 years, immediately preceding the election.” Otsuka held that felons may be electors. The “high crime” test of article VII, section 8, subdivision (b) may well be the sole exception. (Cf. Morrison v. State Board of Education (1969) 1 Cal.3d 214, 234 [ 82 Cal.Rptr. 175 , 461 P.2d 375 ]; Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67 [ 64 Cal.Rptr. 785 , 435 P.2d 553 ].)
Petitioner’s application for a rehearing was denied May 23, 1979. Bird, C. J., and Tobriner, 1, were of the opinion that the application should be granted.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9535629. Public record. Not legal advice.