Petition for Writ of Certiorari — Jury Service Center Center v. Oregon (No. 06-229)
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) Sunreme Court, U.S.
i -229 AUG 12 2006
No. OFFICE OF THE CLERK
IN THE SUPREME COURT OF THE UNITED STATES
JURY SERVICE RESOURCE CENTER.
DAVID SHANNON, AND
ROBERT PAUL LANGLEY, JR.,
Petitioners,
V.
STATE OF OREGON, ET AL
Respondents.
On Petition for a Writ of Certiorari to the
Supreme Court of Oregon
PETITION FOR A WRIT OF CERTIORARI -
S. Rose Jade
P.O. Box 2104
1676 N. Coast Highway
Newport, Oregon 97365
(541) 961 8423
Counsel for Petitioners
ee ere
CAPITAL CASE
In 2001, the Oregon legislature enacted a statute
that made state court jury lists “confidential” and forbade
a court from allowing the public, including all prospective
jurors and some litigants facing a jury trial, from
inspecting the lists. Under the statute, only those
litigants facing a jury trial who already had facts to aver a
prima face case of jury system error, and who had filed a
challenge supported by those facts, could ask to see the
jury lists. Petitioners -- a non profit organization
studying a state circuit court’s jury system, a prospective
juror, and a death penalty defendant who lacked facts to
aver a prima facie case - - filed a declaratory judgment
action seeking standing and an opportunity to inspect the
lists under the First, Sixth, Ninth and Fourteenth
Amendments (Due Process and Equal Protection Clauses).
The court below denied their requests for access to the
lists, upholding the statute against Petitioners’ federal
constitutional challenges.
QUESTIONS PRESENTED
1. Whether a state may deprive persons of standing for
the opportunity to vindicate their federal statutory and
constitutional rights pertaining to state court jury service,
consistent with the First, Sixth, Ninth and Fourteenth
Amendments to the U.S. Constitution.
2. Whether a state may burden a person’s right to
standing and opportunity to vindicate federal jury-related
rights by requiring the person to file a sworn prima facie
case of jury system error before allowing the person to
inspect the state court jury lists for evidence of a violation
of 18 U.S.C. 243, or of the Sixth or Fourteenth
Amendments, consistent with the First, Sixth, Ninth and
Fourteenth Amendments to the U.S. Constitution.
ll
PARTIES TO THE CASE
The parties to this proceeding are Petitioners as
identified on the cover page of the Petition, and
Defendants State of Oregon and:
Paul J. De Muniz, Chief Justice of the Oregon
Supreme Court and Head Administrator of the
Office of the State Court Administrator, Oregon
Judicial Department,’
Kingsley Click, State Court Administrator, Office of
the State Court Administrator, Oregon Judicial
Department,
Paul Lipscomb; Presiding Judge and administrative
head of the Marion County Circuit Court,
James Murchison, Marion County Circuit Court
Trial Court Administrator;
Dale Koch, Presiding Judge and administrative
head of the Multnomah County Circuit Court,
Douglas Bray, Multnomah County Circuit Court
Trial Court Administrator;
Robert Huckleberry, Presiding Judge and
administrative head of the Lincoln County Circuit
Court,
Nancy Lamvick, Lincoln County Circuit Court Trial
Court Administrator,
'See Or. Sup. Ct. Order allowing substitution of party for
former Chief Justice Wallace P. Carson, Jr., 1/19/06 OJIN
#25.
il]
Bill Bradbury, Secretary of State and Public Records
Administrator,
Roy Turnbaugh, State Archivist.
CORPORATE DISCLOSURE STA™EMENT
Petitioner Jury Service Resource Center is a dba of
Firebare, Inc., a non-profit 501(c)(3) registered with the
State of Oregon. Firebare, Inc., does not issue stock.
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TABLE OF CONTENTS
QUESTIONS PREGENTED,. ...cccccsccccccsecssocsscsersedesoscosssvscone (i)
FPR A CF CARE Gis keds dcssivivertaccdairancseaacdecwiestuastvdiaen, ii
CORPORATE DISCLOSURE STATEMENT .................... iii
ADU ME OW AATTOOMN TTI oo icecsioscssiasssiseniepcocccchccviee v
OPINIONS AND ORDERS BELOW ................cccessccsssceseeeee 1
FA PERE iistitidtietisiatckenwiieiimeiae 1
CONSTITUTIONAL PROVISIONS AND STATUTES........ 1
TRIAGE ME ES COE BERRY CME seven cccvsibnsnocspocsdcvecsapconasveunetaces 1
REASONS FOR GRANTING THE WRIT ................:c:ccccees 4
I. The Two Issues Presented are Recurring and of |
Great Public and Practical Importance. ...............00.. 5
A. This Case Squarely Presents the Issues. ............ 11
II. The Decision Below Directly Conflicts
with the Court’s Opinions on Standing
and Opportunity to Vindicate Federal Rights......... 11
Ill. The State Courts are Divided Over Whether
the Federal Constitution Forbids a State
From Refusing Public Inspection of State
RN arte a pci ncbaecantirasseanatuniceniccclaminuaens ven 23
IV. The Decision Below is Incorrect. ..................ecceceeeee 27
A. Under the “Experience and Logic” Test
of the First Amendment, there is historical
support for public inspection of state court
jury lists, and public inspection of the lists
plays a significant role in state jury selection. ........ 27
Srey Aa sibiiv a vasnsdiccsnasinnipas coatsanluapcopmenciniaivnenmabtcbiamanain 30
TABLE OF CITED AUTHORITIES
UNITED STATES SUPREME COURT CASES
Alexander v. Louisiana, 405 U.S. (1972).................. 6, 10, 18
Apprendi v. New Jersey, 530 U.S. 466 (2000) .............c eee 5
Arnold v. North Carolina, 376 U.S. 773 (1964) ..............0.... 6
Avery v. Georgia, 345 U.S. 559 (1953)............ ce esessesseseeeeee 10
Ballard v. United States, 329 U.S. 187 (1946)..............0...0.. 6
Batson v. Kentucky, 476 U.S. 79 (1986)
paisaandaat 5-6, 10, 18, 19, 30, App 50 n8, 53-54 n12, 62, 64
Blakely, Jr. v. Washington, 542 U.S. 296 (2004) ....... 5, 8, 29
Bush v. Kentucky, 107 US 110 (18838) ........ eee. ‘seen
Campbell v. Louisiana, 523 U.S. 392
| PEPER Se Al oes: ee 6, 12, App 44, 50 n7, 52, 64, 72
Carter v. Jury Comm’n of Greene Co.,
396 U.S. 320 (1970).............. 6,9, App 44, 52, 62, 72, 78
Carter vu. Temas, . 177 U.S. 442 (1S0O)......cncccccecsccesceccnscees 6, 11
Cassell v. Texas, 339 U.S. 282 (1950).............ccccccccscesscccceeees 6
Castaneda v. Partida, 430 U.S. 482 (1977)............cccceee 6,18
Cooper v. Brd of Directors of the Little Rock, Arkansas,
Independent School District, 358 U.S. (1958).............. 22
Cox Broadcasting Corp., 420 US 469 (1975).............. App 44
Davis v. Wechsler, 263 U.S. 22 (1923)............ccccceccscsceseccess 30
Dombrowski v. Pfister, 380 U.S. 479 (1965)............... eee 23
Duncan v. Louisiana, 391 U.S. 145 (1968) ...... ee 8
Duren v. Missouri, 439 U.S. 357 (1979)..... 8, 12, 13, App 62
Edmonson v. Leesville Concrete Co., Inc.,
ee ae ee CI Bit iin ech ddencscecie ntdnsbacccsdeersametccine 10, 20
Eubanks v. Louisiana, 356 U.S. 584 (1958)......... eee 6
Georgia v. Rachel, 384 U.S. 780 (1966)...............ccccceeeeeeee 22
Globe Newspaper Co. v. Superior Court,
gil ih... Seen eee 7, App 7-10, 22
Greater New Orleans Broadcasting Assn., Inc.
vu. United States, 527 U.S. 173 (1999)... App 44
Hill wo. Texas, 516 U.S. 400 (2942)............cccccocccovcccesses: 6, 9-10
vl
Houchins v. KQED, Inc.,
GO tae & CID hcskscertivicrind 28, App 13, 43, 47, 71 n30
Fon ve Caer, Ge hs Bee CR vcevcseecccvacecsenncenceccscvessvliaies 8
J.E.B. v. Alabama ex rel TB, 511 U.S. 127 (1994)..... App 62
Joknson v. California, 545 US 162,
CE he scteiniinsisecccacial 5-6, 11, 30, App 53-54 n11, 64, 72
Johnson v. U.S., 520 U.S. 461 (1997)... eee App 62
Lockhart v. McCree, 476 U.S. 162 (1986).........5......... App 26
Los Angeles Police Department v. United Reporting
Publishing Corporation, 528 U.S. 32 (1991) later
proceeding at URPC v. California Highway
Patrol, 231 F. 3d 483
COPD <cctiiciibscentaciindans 28-29, App 13, 44, 48, 52, 68, 71 n30
Middlesex County Ethics Comm., 457 U.S. 423 (1982)......22
Miller-El v. Dretke, 545 U.S. 231,
Se Bk es ee CE icerdiaihiccitasseaiccasipiaitscccndasouetieidhah 5-6
Mills v. Alabama, 384 U.S. 214 (1966) ................: cee App 7
Neal v. Delaware, 103 U.S. 370 (1881)........0..c eee 6, 10
New York Times Co..v. Sullivan, 376 U.S. 254 (1964)....... 29
Norris v. Alabama, 294 U.S. 587 (1935)................ceeeeeee 6, 10
Perry v. Sindermann, 408 US 598 (1972) ...............2.. App 44
Probewn 0. TER, GOT Ue GC Fh icnckeviticcicettovecnecciesianccoesinn 9
Pierre v. Louisiana, 306 U.S. 354 (1939) ............. cee 6, 10
Powers v. Ohio, 499 U.S. 400
| 1 SER OP SR ae cent 6, 9, 16, 20, App 44, 50 n7, 63-64
Press-Enterprise v. Superior Court, 464 U.S. 501 (1984)
(Press Enterprise I)........... 7, 25, 28, App 8-13, 20-29, 44
Press-Enterprise v. Superior Court, 478 U.S. 1 (1986)
(Press Enterprise I]).......... 7, 25, 28, App 8-13, 20-29, 44
Reece v. Georgia, 350 U.S. 85 (1955) «0... eee 6, 11, 22
Richmond Newspapers, Inc. v. Virginia,
i Ci iii otcncocieebnbinsestnsscnccimbeosciies 7, App 7, 10
Ring v. Arizona, 536 U.S. 584 (2002)................ceeeeseeereteenes 5
Rogers v. Alabama, 192 U.S. 226 (1904)... ceeeeeeeeeeeeeees 6
Rose v. Mitchell, 443 U.S. 545 (1979)... cee eee eee 6, 9-10
Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) ..... App 44
Smith v. Texas, 311 U.S. 128 (1940)... 6, App 53 n11, 64, 72
Strauder v. West Virginia,
BO TE. FG Ca i incevcrnctnsecinssensesies 6, 22, App 53, 62
Vii
Taylor v. Louisiana . 9 U.S. 522
CE ciccstiseer. » _alsstcinieiimas 6, 13, App 50, 62, 64
Test v. United States, 420 U.S. 28
Te ictivvcsncchsnnjcvedonsmnnosin Kcintennunida 13, 23-25, App 44, 72
Thiel v. Southern Pacific Co., 328 U.S. 217, 220 (1946)....10
Tollet v. Henderson, 411 US 258 (1973)........ccccsceeseeees 20-22
Fama VU. Ghia, FIG W.te CABG sis pesvcarevscsvirccsecesiconnenvivts 9
Turner v. Fouche, 396 U.S. 356 (1970).................ceseccesceeees 10
United State v. Gale, 109 U.S. 65 (1888) .......... eee ee eee 11
Vasquez v. Hillery, 474 U.S. 254 (1986)... eeeeeeeeeee 22
Wardius v. Oregon, 412 U.S. 470 (19738)....... ee eeeeeeeeeeeeee 11
Whitus v. Georgia, 385 U.S. 545 (1967) ............. App 62, 82
Williams v. Georgia, 349 U.S. 375 (1955)... eececeeeenseeee 21
Younger v. Harris, 401 U.S. 37 (1971) ...cccccosecocesescseossenssees 22
|
CASES FROM OTHER COURTS
Anderson v. Gladden 234 Or. 614, 383 P2d 986 (1963)
later proceeding at 303 F Supp 1134
CROSS anicascictiainc-aiassaccaoeeenaaes 21, App 51 n8
Azania v. Indiana, 778 NE2d 1253 (2002)........... 17, App 75
Bradley v. Shreveport Gas, Electric Light &
Power Co., 139 La. 1029, 72 So. 725 (1916) . App 91n 50
Bramwell v. Rowiand, 123 Or. 33, 261 P 57 (1927)... App 25
Brogden v. State, 102 Md App 423,
OED ADE LIDGE oo iiveerecstscecc ccc, App 63 n24
Commonwealth v. Campbell, Jr., 378 Mass. 680, 393
PRB ON CRO TUE sss scninees darnsideadecdssadbaeitatcbaieacioseaiadenenes 24
Commonwealth v. Carson, 559 Pa 460,
FA Fee Be Ce hectccesacccistcesadinasloseacsnatinens App 63 n24
Commonwealth v. Long, 2005 Pa. Super. LEXIS 496, 871
A.2d 1262 (2004), appeal granted in part by
2005 Pa. LEXIS 2072 (2005) and 2005 Pa
Re Te CE csirctscctnncipuersidiccesieticiniasiaianuuane 26
Cox v. State of Oregon, 191 Or App 1,
Be FG Be Ce ino hivccaecsvrackein ath eteeetene App 24
Vill
Cross v. State, 272 Ind. 223,
BE cco coccsvevsedscrsevoveceveres App 90 n50
Eacret v. Holmes, 215 Or 121, 333 P2d 741 (1958).... App 28
Fenwick v. State, 197 Ind. 572,
Ce a a App 90 n50
Garner vu. Alexander, 167 Or 670 (1941)............... App 51 n8
In re Disclosure of Juror Names and Addresses,
233 Mich App 604, 592 NW2d 798 (1999)...... 25, App 22
In re Lasswell, 296 Or 121, 673 P2d 855 (1983)........ App 24
Jury Service Resource Center, et al v. Carson, et al, 199
Ore. App. 106, 110 P. 3d 594
C2006) 5 ..0406008 1-2, 23, 25, App 2-6, App 16-29, 46, 49, 54
Jury Service Resource Center, et al v. DeMuniz, et al, 340
Or. 423, _ P3d __ (2006) 2006 Ore. LEXIS 350,
reconsideration denied, 2006; 2006 Ore. LEXIS 54
isc cacticinsvecveeeionesees 1-3, 14, 23, App 1-14
Labat v. Bennett, 365 F2d 698 (C.A.5 1966).............. App 81
League of Oregon Cities v .State of Oregon,
304 Or 646, 56 PSd 892 (2002) ............ccesseerceceesers App 28
Lemley v. State, 599 So.2d 64 (Ala App 1992) .... App 63 n24
Lewis v. State, 632 A.2d 1175,
BO Wd G00 (BOOS) nrocecocceensssvcecneceseeeses. 24, 26, App 75
Oregonian Pub. Co. v. U.S. Dist. Court for Dist.
Of Oregon, 920 F2d 1462 (9% Cir. 1990)
Cert denied, 501 US 1210 (1991).....................0000 App 27
Pantos v. City and County of San Francisco, 151
Cal. App. 3d 258, 198 Cal. Rptr. 489 (1984) .. 26, App 29
People v. Mitchell (In re Juror Names), 233 Mich. App.
COG, Goa WV.W.2G 798 (TGGD)........00.cceseeeeerseeess 25, App 21
Pimentel v. Texas, 710 S.W.2d 764, 1986 Tex. App.
I I ED cscs cca snavensnencesousssevescovesvsveseeeseceevesers 25
Richardson v. Louisville & NRR, 291 Ky 357, 164 SW 2d
NEES SESE TE App 90 n50
Seattle Times Co. v. U.S. Dist. Court for Western
Dist. of Washington,
Ge et FOES CS Cik 19GB)... cc occ sccsesccscccccscecsers App 23
SER Beacon Journal Publ. Co. v. The Hon. Judge Jane
Bond et al, 98 Ohio St. 3d 146,
| 25-26, App 23
ix
SER Click v. Brownhill, 331 Or 500,
By RED wicnscnndesnarsdissnesabinnnncnecen ckdbucbteassunit App 71
SER Schrunk v. Walker et al, 308 Or 398,
FO EE. FD Widtickaddstdiinsdavintecameoincsans App 50 n8, 75
SER Garrett v. Saitz, 594 S.W.2d 606, 607,
1960 Bho. LAT BB6 (IDG O) cov cccvesecccccccccccvcesesevscsssercens 25
SER Venn v. Reid, 207 Or. 617 (1956)................. App 51n8
State v. Benson, 235 Or. 291, 294, 384 P.2d 208 (1963) ...27
State v. Burrows, 293 Or 691, 653 P2d 226 (1982).... App 56
State v. Carlson, 39 Or 19, 62 P 1016 (1900)........ App 51 n8
State v. Cavan, 337 Or. 433, 98 P.3d 381 (2004) ............... 28
State v. Ciba-Geigy Corp., 240 N.J. Super. 511,
Fe Fee es He CD eek cesteceisnstcntanscnrclenttlesiavteiees 21
State v. Delgado, 298 Or 395, 692 P2d 610 (1984)..... App 24
State v. Evans, 100 Wn App 757, 998 P2d 373
COI iascnteiictrtn bike sdadnndtsehenneicceidamiisamiiicioned App 63 n24
State v. Fitzhugh, 2 Or 227 (1867) ...........ceeeeeeeee App 51 n8
State v. Gortmaker, 60 Or App 723 (1982)
ET Fe Ce Ce is chs cashes ecanevcvevscienes App 50-51 n8
State v. Lowry, 263 N.C. 536,
TOO SE. Be BF CIB) vvvsnsivcsscconcovnvenccses gui scakiihintigil App 82
State v. Robertson, 293 Or 402, 649 P2d 569 (1982).. App 24
State v. Rogers, 334 Or. 633, 55 P2d 488 (2002)........... 14 n2
State v. Vegas, 19 La Ann 105 (1867) ................. App 91 n50
State v. Walton, 311 Or 223, 809 P2d 81 (1991)........ App 50
Times Mirror Co. v. U.S., 873 F.2d 1210
Sa PD cc vinksvtvvocehisiassacaciassauineubiglidasecouessineidis App 23
U.S. v. Jackman, 46 F. 3d 1240
RS, BD seins aiblrcacrsacstntesierevsevecs 17-18, App 75
U.S. v. Mitchell, 136 F 865 (1908)............ icdaaeaunies App 51 n8
U.S. v. Osorio, 801 F. Supp. 966
a CG Fe iisicckcvaicnouiesconteteaccces 17-18, App 72, 75
FEDERAL CONSTITUTIONAL PROVISIONS
First Amendment............. i, 1-2, 7, 25-27, App 101, passim
Fifth Amendment.................. sailaeitadaph saciahianhasnisiete App 56, 86
PEED RAC NERD IAS BAAR DCE MTT HALTER OTE
i, 1-2, 12-14, 17, 19, 25-27, App 21, 37-42, 56, App 101
SESE AMEE LE RD LEM NCL ED App 56
| ES GRR M RIED ao ON SNORE BER LR POAC OUN N R O
eae i, 1-2, 8, 25-27, App 37-40, 49, 58, 67-69, App 101
ee BI ei piccredeencbivinsncadenesdidscapcaseoesinesduansiones
ie cmean i, 1-2, 6, 8, 10, 18-19, 22, 25, 27, App 101, passim
FEDERAL STATUES
18 U.S.C. $248 ............. i, 10, 16, App 52-53, 82-83, App 101
ee re WW sr cc socniee cadonincsnennstrwedieds App 48, 54 n12
die chpiscccte atanicner ten ctsictpnaceidicdoodabsaiGieniebicuidnies 1
28 U.S.C. §1861 et seq (Federal Jury Service
and Selection Act......... sancpennicdlisiciolepes 13, 23, App 26, 76
Antiterrorism and Effective Death Penalty Act of 1996
(ARIA), 12D Sth: T2IA...ccccetccscevcesiven CALNE 4nl1, 21
Xl
OREGON COURT RULE AND STATUTORY
AUTHORITIES
ORCP 57A (Challenge to jury panel)...... 14, 21, App 103-04
ORS 10.215 (jury list, no public disclosure). 14, 16, App 102
ORS 10.275 (Access to records by litigants) 14, 16, App 102
ORS 136.005 (Challenge to jury by litigants)14, 21 App 102
MISCELLANEOUS AUTHORITIES
ABA Guidelines for the Appointment and
Performance of Defense Counsel in _
Death Penalty Cases (Ed. 2003)........ 4 n2, 21, App 33-35
Uniform Jury Selection and Service Act
SPINA catuiciceckarcatecoresdiinkansaeinativustesied App 58-59, 76, 87
BE Cin BENG Cit GOT (OE. OGD ccisscccsceicccksscncsossncsssccsesiosn 29
Jury Service Resource Center, et al v. Carson, et al,
Opinion of the Marton Co._Cir. Ct.,
CE FU a IE skinckclarepccrerinetigecniens 1-2, App 29-30
State v. Farmer, Mult. Co. Case No. 010231271, Opinion
and Order dated Nov. 26, 2001 Allowing Disclosure of
Confidential Jury Records ...................008 23, App 72-73
State v. Hurwitz, Mult. Co. Case No. C9811-39654,
Opinion and Order dated Aug. 29, 2000 (denying
State’s Motion to Quash Subpoenas for jury
records)(copy provided in Appendix)....... 23, App 92 n52
State v. Krueger, SC S53148 (Or. Sup. Ct. Order holding
mandamus petition in abeyance) 12, App 46, 69 n26, 99
Xi
State v. Langley (Gray II), Marion Co. Cir. Ct.
No. 88C21624 (Final Judgment and Sentencing
Order (Sentence of Death)
entered Feb. 4, 2006)............... i, 1-3, App 31-32, 70 n28
State v. Lueb, SC S53165 (Or. Sup. Ct. Order holding
mandamus petition in abeyance) .... 12, App 69 n26, 100
CONGRESSIONAL RECORD
Civil Rights Act of 1967, Hearings before the
Subcommittee on Constitutional rights on S.1026 ***
Proposed Civil Rights Act of 1967, SUDOC Y4.J89/2:
C49/13/967, Testimony of U.S. Attorney
GOMOTE! CIMT. <ccvccccccceres pg 89, App 45, 50-56, 76, 80-85
H.R. Report No. 1678 Part 2 [to accompany
H.R. 14765], 89** Congress, 2d Session,
Civil Rights Act of 1966, Additional
and Minority Views, Additional Views
of Hon. Emanuel Celler. ................ App 56-57, 76, 85-87
OREGON LEGISLATIVE AND COUNCIL RECORDS
1985 [Oregon Legislature] House Bill 2985, House
Judiciary Committee (Subcommittee 2), April 12,
1985, Tape 425 at 278, Testimony of State Court
Administrator William Linden.. App 25, 92 n51, 96 n54
Council on Court Procedures, Legislative History relating
to Promulgation of Oregon Rules of Civil Procedure
(1/1/78 through 12/31/78) Vol 6 of 7 .............. App 89 n49
Xiil
LAW TREATISES AND LEGAL JOURNALS
William Blackstone, Commentaries on the Laws of
England 518-23 (Wm. H. Browne ed 1892).......... App 25
Sir Mathew Hale, The History of the Common Law of
England 337 (6 ed 1820) ...............scccccsesseeees App 10, 25
Thomas Hobbes, Philosophical Rudiments Concerning
Government and Society in The English Works of
Thomas Hobbes, ed. Sir William Molesworth (London:
John Bohn, 1841), Vol. 2, Chap. 8...... App 49 n6, 71 n40
Rose Jade, Voter Registration Status as a Jury Service
Employment Test: Oregon’s Retracted Endorsement
Following Buckley v. American Constitutional Law, 39
Willamette Law Review 557 (2003) ........ App 45, 96 n53
Andrew J. Lievense, Fair Representation on Juries in the
Eastern District of Michigan: Analyzing Past Efforts and
Recommending Future Action, 38 U. Mich. J.L. Reform
ON CI iiveicintanisiiaastieestinlesaiiepaeutenietihenniiniideiiidaipleiiieii App 64
Vincent L. McKusick and Daniel E. Boxer, Uniform Jury
Selection and Service Act, 8 Harv J on Legislation 280
Cis Pi detach ccceniusnaddcietsakinaehadaandialined App 48-50 n20,
App 59-60 n32, 77-80 n 36, 87 n48....0...........cccscessceereeeeees
William L. Murfree, A Treatise On the Law of Sheriffs and
Ministerial Officers 177 (2d ed 1890)................... App ll
Seymour D. Thompson & Edwin G. Merriam, A Treatise
on the Organization, Custody and Conduct of Juries,
Including Grand Juries 41 (1882).............c..cseeeees App 11
Barbara D. Underwood, Ending Race Discrimination in
Jury Selection: Whose Right Is It, Anyway? 92 Colum.
Ey 2 ERR eRe Ree Ly EAN dr ene 10
X1V
Kimba M. Wood, Reexamining the Access Doctrine, 69 S
CRE Es BRO Te CRO) vickenctsnes keckstornndinionvencnian App 23
MISCELLANEOUS PUBLICATIONS
Matt Sabo, People over 70 left of out jury pool,
The OREGONIAN,
ADP. 27, ZOUZ, OB ALI .ncccesecvsecscees 18, App 70 n29, 97-98 n 55
STUDIES OF OREGON JURY SYSTEMS
Questionnaire on Current Jury Selection Methods,
published by Congress, Federal Jury Selection Act of
1967: Hearings on S. 383, S.384, S. 385, S. 386, S. 387,
S. 989, S. 1319 Before the Subcommittee on
Improvements in Judicial Machinery of the Senate
Committee on the Judiciary, 90th Congress, lst
Session, FED. JURY SEL SUDOC Y4.J89/2:J97/10, pg
1123-1127 Questionnaire on Current Jury Selection
Methods, published- by Congress, Federal Jury
Selection Act of 1967: Hearings on S. 383, 8.384, S.
385, S. 386, S. 387, S. 989, S. 1319 Before the
Subcommittee on Improvements in Judicial Machinery
of the Senate Committee on the Judiciary, 90th
Congress, 1st Session, FED. JURY SEL SUDOC
Y4.J89/2:J97/10, pg 1123-1127 [regarding Oregon
IIE iiccss<csices ccckbcsatitvisgiatscianncomines App 63 n25, 93 n53
Bernard Grofman, Michael Migalski, Deborah Dunkel,
JURY FOREMAN SELECTION: THE EFFECTS OF STATUS,
GENDER, AND JURY COMPOSITION CONTEXT (Draft 5,
1987) (analysis of the "data base consisting of jury
demographic and verdict information on 836 trials in
the Circuit _Court-of Multnomah County (Portland,
XV
Oregon) for the period of 1973-1976," discussing
gender and occupational status bias in the self-election
of grand jury foremen in Multnomah
IE MIE vs vecevercoveceveveosevevers App 63 n25, 95 n53
Bernard Grofman, MULTNOMAH COUNTY [OREGON] JURY
PROJECT, 1973-1976, INTER-UNIVERSITY CONSORTIUM
FOR POLITICAL AND SOCIAL RESEARCH, ICPSR 9030
(Summer 1984) (performed with cooperation of
Multnomah Co. Circuit Court Judge Robert Jones and
Michael Schrunk from the Mult. Co. D.A.’s office) The
Multnomah County [Oregon] Jury Project, 1973-1976
was conducted by Bernard Grofman, University of
California, Irvine. The data were collected as part of
the Modeling Jury Decision Processes project funded
by a grant from the
National Science Foundation. .......... App 63 n25, 93 n53
ADMINISTRATION OF THE JURY SYSTEM IN THE OREGON
TRIAL COURTS IN APRIL 1984, State Court
Administrator's Office, August 1984 (Oregon Judicial
I NIL, SPEED vs cecveceverrovecesacssesee: App 63 n25, 94 n53
AN EVALUATION OF THE MARION COUNTY COURT ONE
TRIAL/ONE DAY JURY TERM (Frank Maiocco, Jr., Lore
Joplin, Office of the State Court Administrator,
_ Oregon Judicial Department, Salem, Oregon)
EN ee 15, App 63 n25, 95 n 53
COMMENTS TO JURY BILL [1985] HB 2545, Prepared by
Office of the State “Court Administrator, May 1985,
(submitted as Exhibit B to the Hearings on HB. 2545,
Relating to Juries, Before the Senate Judiciary
Comm., 1985 Leg. 63rd Sess. June 14, 1985, as part of
the testimony of William Linden, Jr., State Court
Administrator; detailing county-by-county jury
MD sss ceckcdisorrenedevscteceeveces . App 63 n25, 94 n53
XV1
COMPARISON OF MANUAL AND ELECTRONIC JURY
SELECTION SYSTEMS, Prepared by Office of the State
Court Administrator, May 1985 (attached as Appendix
A to Exhibit B, submitted to the Hearings on HB.
2545, Relating to Juries, Before the Senate Judiciary
Comm., 1985 Leg. 63rd Sess. =
DOG B64, Ti iccnivsnenctasenipstsainicbiicewanss App 63 n25, 94 n53
COMPARISON OF OREGON PRACTICES- WITH ABA
STANDARDS RELATING TO JUROR USE AND
MANAGEMENT, State Court Administrator's Office,
August 1984
(Oregon Judicial Dept., Salem, OR). App 63 n25, 94 n53
MARION COUNTY JUROR SATISFACTION ANALYSIS, MAY 20,
1999 (available from the Office of the State Court
Administrator, Oregon Judicial Department, Salem,
CRIED cosnssccpinctactbubesiummdatalssnasinds 15, App 63 n25, 96 n53
PROGRESS REPORT OF THE OREGON SUPREME COURT
IMPLEMENTATION COMMITTEE, JANUARY 1996, Office
of the State Court Administrator, Oregon Judicial
Dept. (see Chapter Six, Minorities and Jury Service:
The Goal: A Jury of One’s Peers) ..... App 63 n25, 95 n53
REPORT OF THE OREGON SUPREME COURT TASK FORCE
ON RACIAL/ETHNIC ISSUES IN THE JUDICIAL SYSTEM,
May 1994, Office of the State Court Administrator,
Oregon Judicial Department
(see: Chapter 7, Juries)........ccccecss0e0- App 63 n25, 95 n53
REPORT ON EXAMINATION OF JURY MASTER [LIST] FOR
WASHINGTON COUNTY [MARCH 2002], Grant Farr,
PhD, (submitted to Washington Co. Cir. Ct. 3/13/2002,
State v. Spencer, CO0-0928CR)......... App 63 n25, 96 n53
XVI
THE REPRESENTATIVENESS OF JURY POOLS AND
TREATMENT OF JURORS IN THE MULTNOMAH COUNTY,
OREGON, COURTS AUG, 1993 (available from the
Multnomah County Bar Association, Portland,
SEE secscevnnisvaraacateaadsencednianinens App 63 n25, 95 n53
PETITION FOR A WRIT OF CERTIORARI
OPINIONS AND ORDERS BELOW
The opinion of the state supreme court (App 1-14)
is reported at 340 Or. 423 (2006); 2006 Ore. LEXIS 350.
The opinion of the state court of appeals (App. 16-29) is
reported at 199 Ore. App. 106, 110 P.3d 594 (2005). The
opinion of the Marion County Circuit Court, Civil Case
No. 03C11907 (excerpts provided at App 29-30) was
issued on Sept. 10, 2003, and is unreported.
The Final Judgment and Sentencing Order
(sentence of death) pertaining to Petitioner Langley was
entered on February 4, 2006 in Marion County Circuit
Court, State v. Langley (Gray III), Criminal! Case No.
88C21624 (excerpts provided at App 31-32) and is
unreported. -
JURISDICTION
The supreme court’s opinion was filed on April 27,
2006. Petitioners’ timely petition for reconsideration was
denied on May 23, 2006, and entered on May 25, 2006.
The jurisdiction of this Court is invoked under
28 U.S.C. § 1257(a).
CONSTITUTIONAL PROVISIONS AND STATUTES
The First, Sixth, Ninth and Fourteenth
Amendments (Due Process and Equal Protection Clauses)
to the United States Constitution, and 18 U.S.C. 243 (text
of the provisions is set forth at App 101).
STATEMENT OF THE CASE
This case raises two important, recurring
questions relating to who has standing to vindicate
federal civil and constitutional jury-related rights, and
whether the right to standing and an opportunity to
vindicate those federal rights as they pertain to state
court jury service, may be burdened by a state.
Petitioners sought access to state court jury source,
master, and term jury lists, offering to abide by any
protective order. Defendants denied Petitioners’ requests,
citing to a recently enacted statute making state court
jury lists “confidential” and prohibiting a court from
granting the public, including Petitioners, any access to
the lists (text of the pertinent statutory and rule
provisions is set forth at the back of the appendix, App
102-104). On February 25, 2003, Petitioners filed a civil
action in Marion County Circuit Court (No. 03-C11907)
seeking a declaratory judgment granting them (1)
standing to access state court jury lists, and (2) an
unburdened opportunity to vindicate their federal
statutory and constitutional rights related to state court
jury service. Petitioners relied upon the First, Sixth,
Ninth and Fourteenth Amendments (App 35-39). In
October 2003, the civil trial court summarily denied all of
Petitioners’ federal constitutional claims (App 29-30). On
April 13, 2005, a three-judge panel of the Oregon Court of
Appeals unanimously granted Petitioners relief under the
First Amendment (App 16-29). On April 27, 2006, a five-
justice panel of the Supreme Court of Oregon
unanimously reversed the decision of the Court of
Appeals, and denied all of Petitioners’ federal
constitutional claims (App 1-14). Petitioners’ sought
reconsideration of the court’s decision on their First
Amendment claim, and sought clarification of the Court’s
‘ denial of Petitioner’s claims under the Ninth, and
Fourteenth Amendments (App 58-98). The court below
denied reconsideration without further briefing or
argument (App 14-15). Petitioners raised all of their
federal claims at each stage of the proceedings below: the
Circuit Court trial level (App 35-40); in front of the Court
of Appeals of Oregon (App 40-45); and in front of the
Oregon Supreme Court (App 46-98).
9
re
Petitioner Jury Service Resource Center is a non-
profit organization, seeking to access and audit state jury
lists for the benefit of the public, including the vindication
of federal jury-related rights (App. 36-38, 70 n28-29).
Petitioner David Shannon is a prospective state juror,
seeking to educate himself about the jury system and
vindicate federal jury related rights (App. 37-38, 70 n28).
Petitioner Robert Langley, Jr., at the time this
action was filed (2003), was preparing his defense in state
court against the death penalty. In June 2002, Langiey
sought access to the jury lists to investigate the jury
selection system to be used in his case, and vindicate his
own federal constitutional jury-related rights, and the
federal jury-related rights of prospective Marion County
jurors (App. 35-40). Defendants and the criminal trial
court denied his requests for the lists on the bases that he
had no public right to access the lists, and as a litigant he
had not filed a sworn prima facie challenge to the jury
system. Langley gave Notice to his criminal court and
opposing party of his intention to exhaust his state
remedies regarding access to the jury records in this civil
action, and his need for a stay of his trial until this case
was resolved (App 39-40) to which the state did not object.
Subsequent to the decision of the Court of Appeals
granting Petitioners’ access to the lists under the First
Amendment, the State petitioned the Oregon Supreme
Court for review of that decision (petition filed July 6, .
2005). Prior to the filing of the state’s brief on the merits
below (brief filed on Nov. 6, 2005), the criminal trial court
(on August 29, 2005) and the court below (on October 4*
and 10%, 2005 (OJIN entries 11-14) denied Langley’s
requests for a stay of his death penalty trial until this
case was resolved. On November 9, 2005, a jury returned
a verdict of death against Langley (App 32, 70 n28). On
January 10, 2006 this case was argued and submitted
below (App 1). On February 4‘, 2006, a judgment and
sentence of death was entered against Langley (App 31-
32). His death sentence is currently on automatic and
direct appeal to the Oregon Supreme Court (SC S53206).
Because Petitioner Langley was a Plaintiff below,
and because the Court’s decision in this case could affect
Petitioner Langley’s death sentence (despite the fact that
the Court is not being asked to review the merits of
Langley’s conviction or death verdict within this Petition),
counsel] has - - in accordance with Rule 14.1(a) -- identified
the Petition as involving “a capital case.?
REASONS FOR GRANTING THE WRIT
The two narrow issues presented here are
recurring, and of great public importance as they are
central to the vindication of federal civil and
constitutional jury-related rights. Standing and
opportunity to inspect state court jury lists, and the
ability to vindicate federal rights related thereto, go to the
core of the administration of civil and criminal justice in
state courts and to the integrity of all courts. The opinion
* In so identifying this Petition, Counsel further relies on the
ABA Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases (Ed. 2003)
Guideline 10.8 (The Duty to Assert Legal Claims) (App
34), and the relevant mandates contained within the Anti-
Terrorism and Effective Death Penalty Act. Before
including Langley in this Petition, counsel provided notice
to, and heard no objection from, Langley’s court-appointed
state appellate defense counsel (Mr. Frank Stoller,
Oregon State Bar Lic. No. 77084). Counsel for Defendants
here (the State Attorney General and State Solicitor
General) also represent the State’s interest in Langley’s
death sentence.
If a question or an objection arises regarding
Petitioner Langley’s appearance here, Langley
respectfully requests an opportunity to be heard by the
Court on the merits of such issue(s).
below, denying standing and an opportunity to vindicate
federal jury-related rights to all Oregon state prospective
jurors and to many state court litigants, is in blatant,
open conflict with the Court’s opinions, and
misapprehends and nullifies controlling principles of
federal constitutional law. The opinion below also conflicts
with other state appellate court rulings, further
demonstrating the urgent need for a prompt and
nationally binding rule of law.
I. The Issues Presented are Recurring and of Great
Public and Practical Importance.
The decision below denies standing and
opportunity not only to Petitioners, but to all Oregon
prospective state court jurors, and to many Oregon state
court litigants. This deprivation is ongoing and recurring.
Restoring the ability of Petitioners and like persons to
gain an opportunity to inspect state court jury lists is of
national importance for three reasons.
First, as the Court has recently emphasized, jurors
are at the core of this countrys system of justice,
especially the administration of criminal justice. Johnson
v. California, 545 U.S. 162, 162 L. Ed. 2d 129, 140 (2005)
(Batson challenge); Miller-El v. Dretke, 545 U.S. 231, 162
L. Ed. 2d 196, 212, 234 (2005) (Batson challenge); Blakely,
Jr. v. Washington, 542 U.S. 296, 301, 306 (2004) (jury as
factfinder for sentencing is a “fundamental reservation of
power in our constitutional structure”); Ring v. Arizona,
536 U.S. 584, 609-610 (2002) (jury as factfinder in death
penalty sentencing), and Apprendi v. New Jersey, 530 U.S.
466, 489-490 (2000) (jury as factfinder for sentencing).
{Clommunity participation in the administration of
the criminal law...is not only consistent with our
democratic heritage but is also crucial to public
confidence in the fairness of the criminal justice
system.
Taylor v. Louisiana, 419 U.S. 522, 530 (1975). See also
Miller-El v. Dretke, 545 U.S. 231, 162 L. Ed. 2d 196, 212,
232, 234.
Second, as the Court rightly continues to
emphasize, unlawful discrimination and systematic errors
in jury selection (intentional or otherwise) harm not only
the litigants, but also the affected jurors, the court, and
the community at large. Johnson v. California, 545 U.S.
162, 162 L. Ed. 2d 129, 140 (2005); Miller-El v. Dretke,
545 U.S. 231, supra; Campbell v. Louisiana, 523 US 392,
398 (1998) (selection of grand jury); Powers v. Ohio, 499
U.S. 400, 410 (1991) (Batson challenge).
The harm is not only to the accused, indicted as he
is by a jury from which a segment of the
community has been excluded. It is to society as a
whole. “The injury is not limited to the defendant -
- there is injury to the jury system, to the law as an
institution, to the community at large, and to the
democratic idea! reflected in the processes of our
courts.” ***(D]iscrimination on the basis of race in
the selection of members of a grand jury thus
strikes at the fundamental values of our judicial
system and our society as a whole[.|
Rose v. Mitchell, 443 U.S. 545, 556 (1979) (citing to
Ballard v. United States, 329 U.S. 187, 195 (1946)).
The Court’s keen perception of the serious harm
done, and its dedication to fulfilling its own duty to
vindicate the federal rights involved, is reflected in an
“unbroken line” of the Court’s jury-rights-related cases.
Rose v. Mitchell, 443 U.S. 545, 551-552 (1979) (race based
exclusion of prospective jurors in violation of the
Fourteenth Amendment) (citing to Strauder v. West
Virginia, 100 U.S. 303 (1880); Neal v. Delaware, 103 U.S.
370, 394 (1881); Bush v. Kentucky, 107 U.S. 110, 119
(1883); Carter v. Texas, 177 U.S. 442 (1900); Rogers uv.
Alabama, 192 U.S. 226 (1904); Pierre v. Louisiana, 306
U.S. 354 (1939); Smith v. Texas, 311 U.S. 128 (1940), Hill
v. Texas, 316 U.S. 400 (1942); Cassell v. Texas, 339 U.S.
282 (1950); Reece v. Georgia, 350 U.S. 85 (1955); Eubanks
v. Louisiana, 356 U.S. 584 (1958); Arnold v. North
Carolina, 376 U.S. 773 (1964); Carter v. Jury Comm’n,
396 U.S. 320, 338 (1970); Alexander v. Louisiana, 405 U.S.
625, 628 (1972); and Castaneda v. Partida, 430 U.S. 482,
492-495 and n 12 (1977)). See also, Norris v. Alabama,
294 U.S. 587, 589 (1935) (Gury discrimination case,
discussing “duty” of the Court “to determine whether in
truth a federal right has been denied” and to “safeguard|]
constitutional rights”).
Third, the issues presented are important because
the Constitution so provides: at least four fundamental
jury-related rights are embraced and secured by the U.S.
Constitution. These rights are not mutually exclusive:
the Court has made clear that these rights often intersect
and intertwine.
The First Amendment provides the public with the
right to access criminal trials, in order to witness how
justice is administered, and to assist in that
administration by being present. This Court protects the
public’s First Amendment right to view state court
criminal proceedings, Richmond Newspapers v. Virginia,
448 U.S. 555, 581 (1980) (absent overriding interest
articulated in findings, the trial of a criminal case must be
open to the public); Globe Newspaper Co. v. Superior
Court, 457 U.S. 596, 610 (1982) (no justification for
mandatory closure of criminal court proceeding, case-by-
case determinations must be made); Press Enterprise v.
Superior Court of California (Press-Enterprise I) 464 U.S.
501, 513 (1984) (government failed to show a compelling
governmental interest, narrowly tailored, to justify state
trial court sealing six-weeks of voir dire and transcript
thereof from public view); Press-Enterprise v. Superior
Court of California (Pr -:-Enterprise II), 478 U.S. 1, 10-13
(1986) (public access to criminal trials and selection of
jurors is essential to proper functioning of the criminal
justice system; preliminary hearings included).
The Sixth Amendment guarantees the right to a
jury trial, a “fundamental right” made applicable tc the
states by the Fourteenth Amendment, Duncan uv.
Louisiana, 391 U.S. 145, 154, 158 (1968). This Sixth
Amendment right also reserves power to members of the
public in their capacity as jurors.
That right is no mere procedural formality, but a
fundamental reservation of power in our
constitutional structure. Just as suffrage ensures
the people’s ultimate control in the legislative and
executive branches jury trial is meant to ensure
their control in the judiciary.
Blakely v. Washington, 542 U.S. 296, 305-306 (2004). The
Federal Constitution will not suffer a “mantle of secrecy”
draped over state court proceedings, In re Oliver, 333 U.S.
257, 273 (1948). The Sixth Amendment also guarantees
that juries shall be drawn from a fair cross section of the
community, as part of the guarantee to a fair and
impartial trial. The Court upholds a state criminal
defendant’s federal jury-related rights. See Duren uv.
Missouri, 439 U.S. 357 (1979) and other cases cited supra.
The Ninth Amendment protects the unenumerated
rights of the people, which, Petitioners contend, includes
the fundamental right of the people —- including
prospective jurors and litigants’ -- to inspect the actual
jury lists used by their public court to select and summons
members of the public to appear and perform public
adjudication of the people’s legal claims.
The Fourteenth Amendment guarantees due
process and equal protection to prospective grand jurors,
grand jury forepersons, petit jurors, and litigants who
have been indicted or who are facing a jury trial. Rose v.
Mitchell, supra.
A State cannot, consistent with due process,
subject a defendant to indictment or trial by a jury
that has been selected in an arbitrary and
discriminatory manner, in violation of the
Constitution and laws of the United States. Illegal
and unconstitutional jury selection procedures cast
doubt on the integrity of the whole judicial process.
They create the appearance of bias in the decision
of individual cases, and they increase the risk of
actual bias as well.
Peters v. Kiff, 407 U.S. 493, 502-503 (1972). As the Court
reiterated in Rose v. Mitchell:
“No State is at liberty to impose upon one charged
with crime a discrimination in its trial procedure
which the Constitution, and an Act of Congress
passed pursuant to the Constitution, alike forbid.
Nor is this Court at liberty to grant or withhold the
benefits of equal protection, which the Constitution
commands for all, merely as we may deem the
defendant innocent or guilty. Tumey v. Ohio, 273
U.S. 510, 535 [(1927)]. It is the State’s function, not
ours, to assess the evidence against a defendant.
But it is our duty as well as the State’s to see to it
that throughout the procedure for bringing him to
justice he shall enjoy the protection which the
Constitution guarantees.***”
Rose v. Mitchell, 443 U.S. at 557 (quoting Hill v. Texas,
316 U.S. 400, 406 (1942)).
The Court upholds and protects the federal civil
and constitutional rights of individual prospective state
jurors to receive equal and fair treatment regarding their
eligibility for jury service per se, as well as their
opportunity to be fairly treated during the selection
process itself. Powers v. Ohio, supra (and cases cited
therein); Carter v. Jury Commission, 396 U.S. 320, 329-30
10
(1970) (“Defendants in criminal proceedings do not have
the only cognizable legal interest in nondiscriminatory
jury selection...[T]he State...must hew to federal
constitutional criteria in ensuring that the selection...is
free of racial bias.””); Turner v. Fouche, 396 U.S. 356
(1970) (racial bias in jury selection). The Court affords the
same to civil litigants and jurors. Thiel v. Southern Pacific
Co., 328 U.S. 217, 220 (1946); Edmonson v. Leesville
Concrete Co., 111 S. Ct. 1364 (1991) (Batson challenge
during civil litigation). See also, Barbara D. Underwood,
Ending Race Discrimination in Jury Selection: Whose
Right Is It, Anyway? 92 Colum. L. Rev. 725 (1992) (paying
attention to the rights of excluded jurors will bring needed
coherence to the evolving law of jury discrimination).
Additionally, the Federal Civil Rights Act, 18 USC
§243 makes it a federal crime for anyone, including a
state actor, to discriminate against a prospective juror
based on that juror’s race, color, or previous condition of
servitude. See e.g., Rose v. Mitchell, 443 U.S. 545, 553,
and n 5, and 583 (1979). The Court has held the Civil
Rights Act, and the federal constitution, to impose an
affirmative duty on jury system administrators “not to
pursue a course of conduct in the administration of their
office which would operate to discriminate in the selection
of jurors on racial grounds.” Hill v. Texas, 316 U.S. 400,
404 (1942) (citing to Neal v. Delaware, 103 U.S. 370 (1881)
and Pierre v. Louisiana, 306 U.S. 354); see also Avery v.
Georgia, 345 U.S. 559, 561 (1953) (citing to cases); Norris
v. Alabama, 294 U.S. 587, 589 (1935) (citing to cases);
Alexander v. Louisiana, 405 U.S. 625, 628 n8 (1972) (Civil
Rights Act “affirms and reinforces this [Fourteenth
Amendment] constitutional right” relating to equal
protection in jury selection).
The Court has recently dealt with a case of similar
national importance. When California conditioned the
satisfaction of the first step of a Batson challenge on
ll
proving that discrimination was “more likely than not,”
compared to only having to raise “an inference” that
discrimination was occurring, this Court held that the
state action conflicted with federal law and was
unconstitutional. Johnson v. California, 545 U.S. 162,
162 L. Ed. 2d 129, 141 (2005). Similar to Johnson, this
four-year-old case presents narrow but important
constitutional issues pertaining to state action that
deprives persons of standing, and imposes on them
evidentiary hurdles, ultimately obstructing the
vindication of federal jury-related rights.
A. This Case Squarely Presents the Issues.
Petitioners here have raised and preserved the
federal issues at each stage of the case. Indeed, this case
was brought to settle important federal constitutional
issues surrounding access to state court jury lists.
Il. The Decision Below Directly Conflicts with the Court’s
Opinions on Standing and Opportunity to Vindicate
Federal Rights.
The Court has long held that where a federal! right
exists, a meaning opportunity to vindicate that right also.
exists. Reece v. Georgia, 350 U.S. 85, (1955) (the right to
challenge the grand jury “presupposes an opportunity to
exercise that right”) citing to Carter v. Texas, 177 U.S. 442
(1900) (opportunity to challenge grand jury under
Constitution and Civil Rights Act), and United State v.
Gale, 109 U.S. 65, 72, (1883) (post-verdict challenge to
grand jury). See also Wardius v. Oregon, 412 U.S. 470,
474 n6 (1973) (discovery rights) (the Court is suspicious of
state trial rules which provide nonreciprocal benefits to
the State when the lack of reciprocity interferes with the
defendant’s ability to secure a fair trial). Here, the State
compiles the lists, but denies Petitioners the right to
inspect the lists.
Whereas Petitioner Langley was eligible for a state
grant of standing to seek an opportunity to inspect the
lists, he could not satisfy the state’s evidentiary burden
(he did not have facts about a known challenge to put in
an affidavit). As acknowledged by Defendants and the
court below, other state court defendants share in this
frustration (App 46, 66 n26, 99-100). Petitioners JSRC
and Shannon are not eligible for a state grant of standing
to seek the lists. Oregon prospective jurors have no
opportunity to inspect the lists, let alone “ample
opportunities” to vindicate their rights such that members
of the Court understand to exist in this nation. Campbell
v. Louisiana, 523 U.S. 392, 408 (1998) (Thomas, J. and
Scalia, J., concurring in part and dissenting in part).
A challenge asserting a violation of the Sixth
Amendment’s fair cross-section requirement, (where the
challenge is not a facial challenge to a jury service
eligibility standard per se), is normally based on a
relatively straight forward analysis of a statistically
significant number of jury venires. The current standard
for evaluating the challenge was set by the Court in
Duren v. Missouri, 439 U.S.357 (1979). In relevant part:
In order to establish a prima facie violation of the
fair cross-section requirement, the defendant must
show (1) that the group alleged to be excluded is a
“distinctive” group in the community; (2) 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; and (3) that this underrepresentation
is due to systematic exclusion of the group in the
jury selection process.
Duren v. Missouri, 439 U.S. at 364.
_
The evidence adduced typically includes a
comparison of data about prospective jurors who appear
13
on the jury lists with data about the jurors’ community
made available from the U.S. Census Bureau. See Duren
vu. Missouri, 439 U.S. at 365. As the Court has recognized
and held, access to the jury lists is essential to
investigating whether a Sixth Amendment violation
actually exists, Test v. United States, 420 U.S. 28, 30
(1975), as well as to proving it. The empirical, relevant
facts needed for the challenge are contained in the actual
lists used by the court, and nowhere else. As the Court
stated in Taylor v. Louisiana:
The jury wheels, pools of names, panels, or venires
from which juries are drawn must not
systematically exclude distinctive groups in the
community and thereby fail to be reasonably
representative thereof.
Taylor v. Louisiana, 419 U.S. 522, 528 (1975). Accord,
Duren v. Missouri, 439 U.S. 357, 364 (1979). And, as with
any federal jury-related challenge, the challenger has the
burden of alleging and proving the challenge.
This fact-gathering task for a Sixth Amendment
challenge differs significantly from that faced by a litigant
concerned about investigating and raising a possible
Batson challenge. The Court has held that evidence for
the prima facie case of a Batson challenge need only come
from the immediate trial, based on what is occurring in
the courtroom, as witnessed by everyone in the courtroom,
including the party having standing to bring the
challenge. Batson, 476 U.S. 79, 95. But Sixth Amendment
challenges are different. Access to the jury lists, compiled
earlier and outside of the courtroom, is essential.
For an Oregon state court criminal defendant
wishing to determine whether a Sixth Amendment
challenge exists, he obviously has a problem. Neither he
nor his defense attorney is allowed to simply go down to
the court administrator’s office and, under her or his
supervision, directly inspect the lists to answer the
14
defendant’s simple question. He must first earn an
opportunity from the state to vindicate his federal jury
related rights.
Currently, the only persons who are allowed to
inspect the Oregon state court jury lists are those
litigants who are facing a state court jury trial, who have
already filed a challenge to the jury system, and who
assert an additional need to obtain the official lists as
evidence to support their previously asserted, known
challenge. ORS 10.215, ORS 10.275, ORS 136.005, ORCP
57A (App 102-104). Jury Service Resource Center et al v.
DeMuniz et al, 340 Or 423 (2006); State v. Rogers, 334 Or
633, 55 P3d 488 (2002) (death penalty case, mandamus,
defendant’s affidavit held barely sufficient to set forth a
prima facie case). There are no other exceptions, including
for instance, allowing inspection by a federal agent
investigating a civil rights complaint. Jury Service
Resource Center et al v. DeMuniz et al, 340 Or 423 (2006).
To be sure, the court below, in a separate decision,
has made clear that the actual merits of an asserted
prima facie case need not be ruled on in the litigant’s
favor as a condition precedent to the trial court granting
the seeker access to the records. State v. Rogers, 334 Or.
633, 55 P2d 488 (2002).2 But JSRC and Rogers make
clear that (1) only litigants facing.a jury trial have
standing to file a motion to obtain access to the records
and vindicate federal Sixth Amendment rights; (2) a
challenge and sufficient accompanying affidavit must be
filed. The legislative history of the passage of the 2001
* Rogers did not assert any federal right to access the state
court jury records. The trial court found his affidavit
insufficient to allege a prima facie case and denied his motion
for access to the lists. Rogers filed a mandamus, and the court
ruled that, in their opinion, the affidavit did suffice. State v.
Rogers, 334 Or 633, 55 P2d 488 (2002).
15
statute (of record in this case) makes clear that the state
intended to limit access to state court jury records to this
small group of litigants: those who could assert a prima
facie case without first inspecting the lists and were
willing to do so.
For state court defendants who have already have
sufficient facts or who choose not to pursue a jury
challenge, the decision below is irrelevant. But for
defendants who lack sufficient facts, and who want to
avail themselves of an opportunity to vindicate their
federal jury-related rights, they face an insurmountable
hurdle that only the Court can force Defendants to
remove.
Petitioner Langley’s efforts (as excerpted and set
forth in the App. 35-40) serve as an example. In 2002,
Petitioner Langley, facing a death penalty trial, frankly
admitted to the criminal trial court that he lacked facts to
file a challenge to the jury system (App 37). Convicted in
1989 (App 31) and imprisoned on Oregon’s death row
since that time, he had been restricted in his ability to
empirically monitor the local court system. The only
available studies of the Marion County Circuit Court jury
system were two in-house studies done by the state in the
late 1990s (App 95-96 ##11-12). The data sets used in the
study were of no empirical relevance to Langley’s case, yet
the existence of th studies showed that the state allowed
itself to access an.. study the jury lists, and Langley
asserted that he should be allowed to do the same.
Langley was aware that in Oregon, the State Court
Administrator (SCA) is mandated to compile the annual
master jury lists from public agency lists (the voter
registration lists and the Oregon Dept. of Transportation
lists (drivers and identification card holders)) (App 3, 59-
62). Neither agency keeps a copy of the actual lists
provided by them to the SCA. Performing an empirical
16
analysis on “next best” data lists (e.g., current ‘snapshots’
of agency lists) will not reveal any data about the actual
official jury lists in use. This is because the SCA runs the
agency.data lists through special computer software to
manipulate the raw agency lists into the refined, official
jury lists (e.g., by merging and deleting agency data).
Only by inspecting the refined and official source, master
and term jury lists, can empirical data relevant to a
federal challenge be accessed and investigated. No other
list analysis matters.
Langley filed a public records request, and a
motion before his criminal trial court (serving copies on
the state and trial court administrators), seeking access to
the jury lists in order to determine whether there was a
basis for a jury challenge due to state computer system
errors or the actions of state court personnel. Within both
requests, Langley sought access to vindicate his federal
rights and asserted third party standing to vindicate the
federal rights of prospective Marion County jurors, citing
to Powers v. Ohio, 499 U.S. 400 (1991), and offered to
abide by any protective order. The state denied his
request, citing to Oregon Revised Statutes 10.215 and
10.275 (App 102-104). Before attempting to seek
extraordinary relief in federal court, Langley gave notice
to his criminal trial court that he would attempt to
exhaust his state administrative remedies under the
Oregon Public Records Act in a civil action, which he (as a
state defendant had a right to do), again asserting his
federal rights from within both the civil and criminal
action, and requesting that his criminal case not go to
trial until the civil action was resolved (App 39-40). The
state did not object.
For Petitioner Langley it was not possible to file a
sworn affidavit containing any substantive empirical facts
detailing his court’s failure to draw jurors from a
representative cross section of the community (a prima
17
facie Sixth Amendment case) without first gaining access
to, and inspecting and analyzing, the actual, relevant,
historical jury lists used by the court (App 37, 52).
Petitioners concede that in other communities — those
having a sufficiently diverse racial population -- it may be
possible to collect empirical facts sufficient to assert a
race-based prima facie case and cross-section challenge.
See e.g., U.S. v. Osorio, 801 F Supp 966 (D. Conn. 1992)
(challenge initiated with race-based affidavits containing
lay testimony; inspection of jury lists revealed that all |
residents from two major cities (those_-having most of the
state’s minority population) were erroneously dropped via
data input error during master list compilation); U.S. v.
Jackman, 46 F.3d 1240 (24 Cir. Conn. 1995) (same);
Azania v. State, 778 NE2d 1253 (Ind. 2002) (same). In
such communities, through the use of judicial notice
and/or careful (and expensive) surveying, it may be
possible to submit an affidavit factually averring a race-
based Sixth Amendment violation without actually seeing
the lists first (although inspection of the Connecticut and
Indiana lists early on would have revealed the problems
sooner, with less expense, and with less injury to all).
The cheapest, least invasive, and arguably the best
way to competently determine whether cross-section
problems exist (race and other characteristics) is to
carefully and expeditiously analyze data from a
statistically significant number of court jury lists, which
is what Petitioners sought to do. In particular, by
assigning each prospective juror’s address (as shown on
the jury list) to their official census track, while
simultaneously assigning gender (based on first name)
and tracking age (by birth year only), certain cross-section
analyses can be performed fairly quickly. Indeed, the U.S.
Census Bureau provides software to the public to allow it
to assign addresses to their respective census tracks.
18
With regard to a Fourteenth Amendment due
process and/or equal protection challenge, and excluding
cases of direct or admitted acts of discrimination, access to
the jury lists would again be required in order to discover
whether there was an _ intentional substantial
underrepresentation of distinctive groups on the lists, and
if so, where in the selection process it was occurring.
Castaneda v. Partida, 430 U.S. 482, 487 (1977) (racial
discrimination in grand jury system, statistical data from
10 years of grand jury lists presented); Alexander uv.
Louisiana, 405 U.S. 625, 629-30 (1972).
As case law reflects (e.g., U.S. v. Osorio, supra) the
compilation of the original source and master jury lists on
computerized systems requires a contribution of human
labor. Because computerized jury systems are nonetheless
accessed and operated by people working at court
computer terminals, there are opportunities throughout
the process to purposefully discriminate despite the
computerized nature of such systems. Petitioner JSRC
uncovered this in Lincoln County. As the record reflects
(App. 70 n29, 97 n55), JSRC discovered — during an
inspection of the system -— that a court clerk was
purposefully refusing to mail out jury summons to
prospective jurors over 70 years of age even though they
had been randomly selected for jury service and were
eligible to serve under state law.
Absent a frank (and possibly criminal) confession
by a jury system operator or clerk, access to the lists
would also be needed to verify that an individual juror
was either (a) actually included on the larger list(s) before
being erroneously dropped or wrongfully excluded from a
list via prohibited discriminatory animus, or else (b) was
never actually included on a larger jury list before being
wrongfully added in to the venire in violation of the
random selection mandate.
19
Such acts of discrimination can be quickly
ascertained by comparing later lists with earlier lists, and
inspecting at points where the jury clerk has the ability to
remove or add prospective jurors. Without access to the
lists, and relying only on a subjective analysis of the
physical characteristics of jurors comprising any late-
stage jury pool (the voir dire panel), a litigant might never
suspect, let alone detect, such discrimination. And if a
litigant did suspect discrimination or error, his or her lay
speculation about it (raised during voir dire) is easily
rebutted by lack of empirical proof coupled with lay
speculation about its non-existence. Indeed, unlike a
Batson challenge, “proof? of a Sixth or Fourteenth
Amendment challenge is unlikely to emerge during voir
dire. Again, at this late stage of jury selection it is hard (if
not impossible) to ascertain whether or why certain
cognizable groups aren’t on the panel, and whether it is
just a fluke of random selection, or whether there is a
problem with the system. Assertions of ‘a problem’ based
On vague suspicions about the panel raised on the day
jury selection is set to begin are grossly insufficient to
aver a prima facie case, and trial courts are justified in so
ruling. This is why access to the lists is so important to
the vindication of jury-related rights. The importance of
access is not a new revelation: detailed and impassioned
testimony before Congress in 1966-67 set forth exactly
how making jury lists “confidential” obstructed the
_ vindication of federal jury-related rights (App 76-90).
Again, based on the decision below, the only
persons with standing to ask for an opportunity to look at
the jury lists to determine whether a Fourteenth
Amendment due process or equal protection challenge
exists, are those litigants facing a jury trial who already
have other facts to file a jury challenge, and who decide to
file a challenge, etc. However, assuming such a litigant
exists, he or she has no legal or ethical duty to file a Sixth
or Fourteenth Amendment jury challenge, whether on her
20
or his own behaif or on the behalf of Petitioners or like
others. As the Court has recognized:
Often the interests of the accused are not advanced
by challenges that would only delay the inevitable
date of prosecution...A prospect of plea bargaining,
the expectation or hope of a lesser sentence, or the
convincing nature of the evidence against the
accused are considerations that might well suggest
the advisability of a guilty plea without elaborate
consideration of whether pleas in abatement, such
as unconstitutional grand jury _ selection
procedures, might be factually supported.
Tollet v. Henderson, 411 US 258, 268 (1973).
The opinion below blatantly conflicts with federal
law. The Court has consistently acknowledged that
prospective jurors, like litigants, have standing to
vindicate their federal jury-related rights. Powers uv.
Ohio, 499 U.S. 400, 416 (1991); Campbell v. Louisiana,
523 O.S. 392, 400 (opinion) (“It is axiomatic that one has
standing to litigate his or her own due process rights.”);
and at 408 (Thomas, J., Scalia, J., concurring in part,
dissenting in part) (the defendant “has standing to
raise..his own due process. right” regarding
discrimination during jury selection, and “there are ample
opportunities for prospective jurors whose equal
protection rights have been violated to vindicate those
rights, rather than relying upon a defendant of another
race to do so for them”).
In granting litigants facing a jury trial with rare
third-party standing to vindicate the rights of prospective
jurors, Powers v. Ohio, 499 U.S. 400, 416 (1991),
Edmonson v. Leesville Concrete Co., 500 U.S. 614, 629-30
(1991); the Court did not strip prospective jurors of their
standing to personally litigate their federal constitutional
claims. This case squarely presents the Court with the
narrow question of whether a state may do so.
As the Court no doubt ascertains, the decision
below also creates a major problem for client and counsel.
Petitioners agree that the due diligence requirement for
investigating and raising jury challenges is reasonable.
Anderson v. Gladden 234, Or. 614, 383 P2d 986 (1963)
(challenges to venire must be brought prior to trial); State
v. Benson, 235 Or. 291, 294, 384 P.2d 208 (1963) (same),
Tollett v. Henderson, supra. Barring extraordinary
circumstances, allowing litigants to wait to raise a
meritorious challenge until after their plea is entered,
their jury sworn, or a verdict returned, is unfair to all of
the parties involved, including the taxpayers.
But a due diligence rule only works if there is a
meaningful opportunity for a litigant to diligently gain
pre-trial notice of the basis for a jury challenge. The
stakes are highest, obviously, in death penalty cases, such
as for Petitioner Langley. See e.g., ABA Guidelines for the
Appointment and Performance of Defense Counsel in
Death Penalty Cases (Ed. 2003), Guidelines 10.7
(Investigation; Commentary); 10.8 (The Duty to Assert
Legal Claims) (10.10.2 (Voir Dire and Jury Selection)
(App 33-35); and 1989 Guideline 11.4.1 (Investigation).4
These duties must be undertaken with an appreciation of
the mandates of the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), 110 Stat. 1214. The Court
has noted that defense counsel’s “failure to inform himself
of facts that would have shown the existence of a [jury-
related] constitutional claim” may form the basis for
federal habeas relief, Jollet v. Henderson, 411 U.S. at 267
(1973). See also Williams v. Georgia, 349 U.S. 375 (1955)
(extraordinary facts underlying post-conviction motion for
* See also, ABA Guidelines (1989 Edition), Guideline 11.4.1
(Investigation) Commentary *** Without investigation,
counsel’s evaluation and advice amount to little more than a
guess.
22
new state trial, based on racial discrimination in selecting
death penalty jury, facts supporting challenge allegedly
unknown to diligent trial counsel). Where the state itself
makes it impossible for counsel to investigate those facts,
by obstructing standing and the opportunity to do so,
narrow yet extremely important federal questions are
presented.
If litigants are note timely afforded a meaningful
opportunity to ascertain whether the state has complied
with federal laws governing jury selection and service,
and to thereby assert and vindicate their federal claims,
any pre-trial deadline for such challenges is clearly
unconstitutional. The basement floor of Due Process may
be dirt, but it’s a rock solid layer of rich federal
constitutional dirt. In light of the ruling below, the
question of whether an Oregonian state court criminal
defendant (such as Mr. Krueger or Mr. Lueb, App 46, 69,
99-100), who is intent on investigating his grand and/or
petit jury pool, should attempt to litigant this issue in
federal district court, in order to be afforded timely
protection of his federal rights, and not be held to have
waived this right or remedy by such failure to act, is an
open and urgent question. See eg., Strauder v. West
Virginia, 100 US 303 (1879), Reece v. Georgia, 350 U.S. 85
(1955); Cooper v. Board of Directors of the Little Rock,
Arkansas, Independent School District, 358 U.S. 1 (1958);
Georgia v. Rachel, 384 U.S. 780 (1966), Tollett v.
Henderson, 411 U.S. 258 (1973); and Vasquez v. Hillery,
474 U.S. 254, 106 S Ct 617, 88 L Ed. 2d 598 (1986). The
usual answer, under Younger v. Harris, 401 U.S. 37
(1971), is a flat “no,” as long as a state procee”’ing proves
an adequate opportunity for the complaining party to
present its federal claims. Middlesex County Ethics
Comm., 457 U.S. 423, 432 (1982). Because Petitioner
Langley’s death penalty trial is over, this exact question is
not before the Court. But the existence of that question,
and of claims similar to those filed in Dombrowski v.
Pfiste~ 380 U.S. 479, 482 (1965) (state action allegedly
Yh
being taken to discourage persons from asserting and
attempting to vindicate federal constitutional rights)
merit the Court’s scrutiny and granting of this Petition.
Finally, the decision below also conflicts with this
Court’s reasoning and analysis under the First
Amendment, as set forth at part JV below. The appellate
bench of Oregon is itself divided on how to resolve
Petitioners’ First Amendment claims. Compare JSRC uv.
Carson, 199 Or. App. 106, 117-123 (2005) (tinding a right
of access under the First Amendment) with JSRC v. De
Muniz, 340 Or. 423, 428-435 (2006) (finding no First
Amendment right of access, finding that “there is no
historical support for the kind of openness that plaintiffs
demand,” and “public access plays no significant role in
the official and largely rote function of collecting and
winrowing names for jury lists.”). The confusion is found
at the trial level: Oregon Circuit Court judges have ruled
in favor of public inspection (App 72-73, 92 n52).
III. The State Courts are Divided Over Whether the
Federal Constitution Forbids A State From Refusing
Public Inspection of State Court Jury Lists
The ruling below conflicts with the decisions of
other state appellate courts, particularly those who have
relied on Test v. United States, 420 U.S. 28, 95 SCt 749,
42 L Ed 2d 786 (1975), to guide their decisions.
Petitioners readily acknowledge that Test, concerning a
cross-section challenge, arose under the Federal Jury
Selection and Service Act, which is not at issue here.
However, the Court’s core analysis in Test is realistic,
relevant and compelling:
[W]ithout inspection, a party almost invariably
would be unable to determine whether he has a
potentially meritorious jury challenge. Thus, an
unqualified right to inspection is required not only
by the piain language of the [federal] statute (28
USC 1861 et seq], but also by the statute’s overall
purpose of insuring ‘grand and petit juries selected
at random from a fair cross section of the
community.’
Test v. United States, 420 US 28, 30 (1975).
The states are split on whether the Court’s
principled analysis in Test should guide their own
decision whether to grant access to jury records. Whereas
Oregon has clearly rejected it (Petitioners cited to Test at
all stages of this case), the Court of Appeals of Maryland
expressly cited to and relied upon Test in deciding to
grant access to the jury records under its statute. Lewis v.
State,.332 Md. 638-647-9, 632 A.2d 1175, 1179 (1993).
That court paid notice to the fact that Maryland (like
Oregon, App 87-89 n49) had patterned the state’s relevant
jury record statutes upon the Federal Jury Selection and
Service Act. The Superior Court of New Jersey cited and
relied upon Test and its progeny in decided to grant access
to the jury records, holding:
It would be virtually impossible for defendants
who are endeavoring to ascertain if a successful
attack on the grand jury selection process can be
advanced if the facts necessary to prove a-defect in
the selection process are withheld.
State v. Ciba-Geigy Corp., 240 N.J. Super. 511, 520, 573
A.2d 944, 948 (1990).
In acknowledging the constitutional issue
presented when a court denies a litigant access to jury
system information pre-trial, the Supreme Judicial Court
of Massachusetts cited to Test, but then avoided reaching
the constitutional issue, by holding that the defense
counsel hadn’t pursued obtaining the information
vigorously enough. Commonwealth v. Campbell, Jr., 378
Mass. 680, 692, 393 N-£.2d 820, 828 (1979). The Supreme
Court of Missouri acknowledged Test, but held that the
Test was not based on constitutional grounds, and noted
25
that Missouri was not bound by the federal act and had no
similar state legislation. State ex rel Garrett v. Saitz, 594
S.W.2d 606, 607, 1980 Mo. LEXIS 434 (1980). After
pointedly announcing that this Court had never
announced a right of inspection based on federal
constitutional grounds, State ex rel Garrett v. Saitz, ibid,
n2, the state court held:
The Court is bound, however, ne the United States
Supreme Court’s determination of a state court
defendant’s constitutional right to have his case
considered by a grand jury drawn from a fair cross-
section of his community. This cross-section
requirement would be without meaning if a
defendant were denied all means of discovery in an
effort to assert that right.
State ex rel Garrett v. Saitz, 594,S.W.2d 606, 607 (ordering
the circuit court to provide the defendant-relator with
certain jury information).
On the other end of the spectrum, the Court of
Appeals of Texas has flatly held that Test has no
persuasive application to defendants in Texas state court,
noting that “no such like authority exists within the
State’s statutes.” Pimentel v. Texas, 710 S.W.2d 764, 1986
Tex. App. LEXIS 7695 (1986) (conviction reversed on
other grounds).
This case presents the Court with the opportunity
to clarify that its core analysis and principled holding in
Test is applicable, under federal constitutional law, to
persons in state court. Basis for such a ruling is provided
by the Sixth, Ninth and Fourteenth Amendments, or,
alternatively, under the First Amendment. JSRC v.
Carson, 199 Or App 106 (2005) (set forth at App 16-29)
(relying at App 20-23 on Press-Enterprise I and IJ; and
citing at App 21 to In re Disclosure of Juror Names and
Addresses, 592 NW2d 798 (Mich 1999); at App 23 to SER
Beacon Journal v. Bond, 781 NE2d 180 (Ohio 2002); at
26
App 29 to Pantos v. City and County of San Francisco, 151
Cal. App 3d 258 (1984); and Lewis v. State, 632 A.2d 1175
(Md. 1993)). In SER Beacon Journal Publ. Co., 781 NE2d
180, 187 (2002), the Ohio Supreme Court held that the
public did have a First Amendment right to view the
names and addresses of 290 prospective jurors,
summoned to appear for voir dire in a murder case. The
Supreme Court of Pennsylvania is currently considering
closely related First Amendment claims, regarding public
access to the names and addresses of empanelled jurors,
see Commonwealth v. Long, 2005 Pa. Super. LEXIS 496,
871 A.2d 1262 (2004), appeal granted in part by 2005 Pa.
LEXIS 2072 (2005) and 2005 Pa LEXIS 2073 (2005).
It is extremely important to note what this case
does not deal with. It does not deal with the merits of an
asserted jury challenge. It does not deal with a state
court’s refusal to unseal legitimately sealed court records.
It does not deal with a request to use jury lists for
commercial purposes, or the scope of a litigant’s post-
verdict remedy for pre-trial denial of access to the lists.
Petitioners have not sought access to the detailed files
such that a court might keep on individual prospective
and seated jurors (see APP 64 n37), or to juror
questionnaires containing sensitive personal information,
or to Social Security or ODOT ID numbers, or full
birthdates. Petitioners made (and make) no request to
contact historic, current, or future jurors. Petitioners had
agreed to subject themselves to the jurisdiction of the trial
court and abide by any reasonable protective order issued
over their use of the lists. Importantly, Petitioner Langley
is not seeking a review of his conviction or death sentence
from within this Petition: he is seeking only to vindicate
his right of standing and opportunity to assert and
vindicate his federal jury-related rights, and the rights of
Marion County prospective jurors.
27
When Petitioners assert that Test’s “unqualified
right of access” to court jury lists is applicable to state
courts, similarly required by the command of the federal
constitution, under the First, Sixth, Ninth and/or
Fourteenth Amendments, Petitioners understand that
phrase to mean the following. (1) that they do not have to
first uncover and aver a prima facie case of jury system
error. (2) that the custodian of the state court jury lists
can, nevertheless, (a) promulgate reasonable rules
regarding how public access is to provided (such as
requiring a person to bring themselves within the
jurisdiction of the court), and (b)-exercise supervision over
the use and redisclosure of the jury lists.
Ensuring that the public has reasonable access to
the jury lists does not mean that every review will only
result in negative publicity, or a full-blown jury challenge.
In the event that a basis for a federal challenge is found to
exist, a number of factors will intersect affecting whether,
and how best, to vindicate the federal right. Problems
revealed by inspection that don’t rise to the level of a
federal challenge may be informally resolved, bettering
the system. If inspection comes up “clean,” court
administrators can proudly communicate that result to
the public and increase public confidence in courts.
IV. The Decision Below is Incorrect.
A. Under the “Experience and Logic” Test of the First
Amendment, there is historical support for public
inspection of state court jury lists, and public inspection of
the lists plays a significant role in state jury selection.
As reflected in their Petition for Reconsideration
(APP 73-98), Petitioners strongly disagreed with the state
Supreme court’s determination of factors under the
“experience and logic” test (Petition denied without
further argument or briefing (App 14-15). There is great
28
historical support for public access to jury lists, and the
public plays an extremely signif sunt role in the official
function of collecting and winnowing names for jury lists.
The public passes laws specifying how jury selection is to
be performed (App 59-62), and criminalizes deviations
from those laws. The public pays the government to
perform jury selection and summonsing, and pays
government lawyers and judges to investigate, raise, rule
on, and vindicate the jury-selection-related rights
belonging to the public, prospective jurors and litigants.
There is an undeniably long tradition of publicly funded
studies (using both state and federal monies) of how jury
selection is performed in state courts throughout our
nation, and there exists an incredible reservoir of jury-
system data in the public record, including data on
Oregon’s jury systems (App 93-97).
In addition to relying on Press-Enterprise I and II,
and other cases, Petitioners distinguished Houchins uv.
KQED, Inc., 438 U.S. 1 (1978), where the Court upheld
the prison’s refusal to allow reporters certain types of
access to prisoners and facilities under KQED’s First
Amendment claim, citing the special security needs
integral to prison facilities, and the fact that the
information sought was available from other sources.
Houchins is easily distinguishable because (1) Defendants
are no longer forcing state jurors to perform jury service
inside its prisons, State v. Cavan, 337 Or. 433, 98 P.3d
381 (2004), and (2) Defendants have not produced one iota
of evidence that a court’s protective order is insufficient to
safeguard their fears (imagined or real) of what might
happen if Petitioners see the jury lists. Defendants’
security concerns (App 45-46) were clearly an exaggerated
response (App 47-48). Petitioners also argued over the
import of Los Angeles Police Department v. United
Reporting Publishing Corporation, 528 U.S. 32 (1991)
(hereafter LAPD v. URPC) where the URPC sought access
to county arrest records. Although the Court denied
URPC’s First Amendment claim, it remanded for further
29
hearings on URPC’s_ non-frivolous Fourteenth
Amendment, see later proceeding at URPC v. California
Highway Patrol, 231 F. 3d 483 (2000). A similar situation
exists in this case, as Defendants actually do allow some
persons access to the legislatively sealed court jury lists,
and have failed to offer one legitimate reason why
Petitioners should not be allowed to inspect the lists.
What the case does reflect, is the clear desire of
Defendants to keep their contribution to the jury lists
confidential. But Defendants are all public employees,
either elected or working under the supervision of an
elected official (judges). Jury lists are the equivalent of a
voter registration list, for “[jjust as suffrage ensures the
people’s ultimate control in the legislative and executive
branches, jury trial is meant to ensure their control in the
judiciary.” Blakely v. Washington, 542 U.S. 296, 305-306
(2004). Defendants’ efforts produce the list of persons who
are presumptively eligible for paid state court jury duty,
and eligible to exercise all of the power that comes with
that job; eligible in some cases to vote whether a
defendant will live or die in the name of the entire public
community. Under New York Times Co. v. Sullivan, 376
U.S. 254, 270-286 (1964), any privacy rights Defendants
indirectly assert as to their performance of their public
duties in preparing the public’s jury lists must be
subordinated to the right of the public to monitor and
speak about how the lists are compiled. As Oregon’s State
Attorney General opined in 1981:
A public employee...{has little reason] to believe
that how effectively he or she performs official
duties will be kept confidential. There is also a
clear public interest in knowing how’ public
employees are performing their official duties.
41 Op Att’y Gen 437 (1981).
30
CONCLUSION
Unlike this Court’s Batson’s framework,
Defendants’ state scheme is not “designed to produce
actual answers to suspicions and inferences that
discrimination [or systematic error] may have infected the
jury selection process,” nor is it “designed to vindicate and
encourage[] prompt rulings” on the merits of federal jury-
related challenges. Johnson v. California, 162 L. Ed. 2d
129, 140-41. As reflected in the record, the 2001 statutory
provision igniting this case was explicitly designed by
state actors to block access to, and inspection of, the
state’s jury lists. Design aside, the state action in this
case, including the ruling below, ensures that Oregon
state court jury selection will be “largely immune” from
federal constitutional scrutiny. Batson, 476 U.S. 79, 92-
93. The state’s “local practice” has thus put “unreasonable
obstacles” in the way of Petitioners federal rights, in
violation of the federal constitution, and the Court should
quickly act to remove them. See Davis v. Wechsler, 263
U.S. 22, 24-25 (1923) (assertion of federal venue rights
could not be defeated under state’s local practice).
Petitioners ask the Court to grant their Petition
and restore Petitioners’ standing to vindicate their
personal federal jury-related rights, as well as the rights
of others, and to unburden their opportunity to do so. It is
clear that a decision from this Court is needed to declare,
uphold and protect Petitioners’ federal rights. Expedited
consideration and resolution of Petitioners’ claims is
merited, and will conserve federal and state judicial
resources.
Respectfully submitted,
S. Rose Jade
Counsel! for Petitioners
Dated: August 11, 2006
No.
IN THE SUPREME COURT OF THE UNITED STATES
JURY SERVICE RESOURCE CENTER.
DAVID SHANNON, AND
ROBERT PAUL LANGLEY, JR..,
Petitioners,
Vv.
STATE OF OREGON, ET AL
Respondents.
APPENDIX
to
PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF OREGON
S. Rose Jade
P.O. Box 2104
1676 N. Coast Highway
Newport, Oregon 97365
(541) 961 8423
Counsel for Petitioners
APP - i
Appendix
Table of Contents
OPINIONS BELOW
1. The opinion and judgment of the Oregon Supreme
Court sought to be Reviewed, Jury Service Resource
Center v. DeMuniz, 340 Or __, _ P3d __ (2006); 2006
Ore. LEXIS 350 dated April 27, 2006 ............... App 1-14
2. The order issued by the Oregon Supreme Court denying
Plaintiffs’ petition for reconsideration, dated May 23,
TE teat tale h a casueccewenerebtnenertoureecerooeyese App 14-15
3. The Oregon Supreme Court’s letter request for briefing
on all federal constitutional provisions, dated
SINE Ts UO cocvcescovvssovecescovecceneseseree App 15-16, 67
4. The opinion and judgment of the Oregon Court of
Appeals, dated April 13, 2005, Jury Service Resource
Center v. Carson, 199 Or App 106,
ED App 16-29
5. Excerpts from the opinion and judgment of Judge
Luukinen of the Marion County Circuit Court
dismissing Plaintiffs’ Complaint,
EE EO MI sveceiconcecspecesececeesseversossveoees App 29-30
OTHER ORDERS BELOW
6. Excerpts from the Fina! Judgment and Sentencing
Order [death sentence] of Petitioner Langley, entered
in the public record of the companion death penalty
case of State v. Langley (Gray III), Marion Co. Cir. Ct.
No. 88C21624, filed Feb. 03, 2006, entered Feb. 4,
2006, dated Feb. 3, 200G.............ccccrcsssccssssverees App 31-32
APP - ii
FEDERAL CONSTITUTIONAL AND STATUTORY
AUTHORITIES
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© CONE. SUNGIIG. BBY ceseicccccermccveresipcovecnen inndpoonanisesibiciniane 101
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OREGON STATUTES
Text from Oregon Revised Statutes and Court Rules
pertaining to juries and access to jury records:
ORS 10.030 (Eligibility for jury service; discrimination
GEE) vvicccdseuvighiuepusntnbinnduinaeniaioiaeaans App 60 n21
ORS 10.055 (Deferment of jury service)........ App 59 n20
ORS 10.205 (Random selection of jurors) ..... App 59 n19
ORS 10.215
(Master jury list)..... App 59 n17-18, App 60 n22, 102
ORS 10.255 (Record of persons summoned to serve
as jurors).......... <eeasinalnicasntnineny sidahaneniilan: App 60 n22
ORS 10.265 (Preservation of jury orders, records and
IT icnccevenveccctinisstedindisauitenasdapilgtnansab App 61 n22
COED MRE TOM civinciscenthevcistaciostesenlenduaonioadioiieidimmdicunnsbhia 102
ORS 136.001 (Right to jury trial).................. App 61 n23
ORS136.005
(Challenges to jury panel)App 61 n23, App 62, 102-03
ORCP 57A (Challenging compliance with selection
IO siictcntndiotadicinrinnmissaiaiic App 32-33, 103-04
APP - iii
MISCELLANEOUS AUTHORITIES
Excerpts from the ABA Guidelines for the Appointment
and Performance of Defense Counsel in Death Penalty
Cases (Ed. 2003)
Guideline 10.7 (Investigation)..................cccceeceeees App 33
Guideline 10.8 (The Duty to
BTS BIE SD Srcittcsdenitcctcdccapvesorsiwtenenccbinns App 34
Guideline 10.10.2 (Voir Dire
ONG GUTH SECIS) «..cececcesnsesecesvecosressevecesece App 34-35
Order of Judge Bergman, Allowing Disclosure of
Confidential Jury Records, Multnomah Co. Case No. 0102-
31271, State v. Farmer, Nov. 26, 2001........... App 72-73 n32
APP - iv
PORTIONS OF THE TRIAL RECORD REFLECTING
WHEN, WHERE, AND HOW THE FEDERAL
QUESTIONS PRESENTED WERE RAISED,
PRESERVED AND ACTED UPON
Excerpts from Petitioners’ Original Complaint.... App 35-39
Excerpts from Plaintiffs’ trial memoranda and exhibits
Petitioner Langley’s Notice of Intent to Exhaust
Ge IIE vantivevsvashadsecinmdertecaniavnvenssnveden App 39-40
Excerpts from Defendants’ briefing in the Court
TINIE: <n canak cect edd euukcdapubusveandinusbertbesiaeneks App 40-43 -
Excerpts from Plaintiffs’ Reply brief filed in
The Court of Appeals briefS..............:.0e00+0-.-. App 43-45
Excerpts from Defendants’ Petition for Review filed
With the Supreme Court of Oregon ................ App 45-46
Notice of Similar Claims Raised by Another
Death Penalty Defendant (State v. Krueger).. App 46
Excerpts from Plaintiffs’ Response to Defendant’s
EE BOE UCU visiincesceesecesensesénecsuiesestedsesses App 46-48
Excerpts from Plaintiffs’ Oregon Supreme Court
SN CNIS dicta cc bess Sakonieniscatdbinnsectdcinestubiawharsens App 48-58
Excerpts from Plaintiffs’ Petition for Reconsideration
of the Oregon Supreme Court’s Opinion ........ App 58-98
Notice of Order Holding Mandamus Raising
Similar Issues In Abeyance
(State v. Krueger SC S53148) ..0......eeeeeeeeeees App 99
Notice of Order Holding Mandamus Raising
Similar Issues In Abeyance
(State v. Lueb SC S53165) ........ eee eeeeeeeeenes App 100
APP - 1
| The ruling below; the decision of the Supreme Court of
| Oregon, Jury Service Resource Center v. De Muniz, 340
Or. 423, __ P3d __ (2006).
FILED: April 27, 2006
IN THE SUPREME COURT OF THE STATE OF
OREGON
JURY SERVICE RESOURCE CENTER:O DAVID
SHANNON; and ROBERT PAUL LANGLEY, JR.,
Respondents on Review,
PAUL J. DE MUNIZ;CKINGSLEY CLICK, Office of the
State Court Administrator, Oregon Judicial
Department; ]PAUL LIPSCOMB; JAMES
MURCHISON, 7 Office of the Marion County Circuit
Court Trial Court Administrator; IDALE
KOCH; DOUGLAS BRAY,OOffice of the Multnomah
County Circuit Court Triai Court
Administrator;- ROBERT HUCKLEBERRY; JINANCY
LAMVICK, 0Office of the Lincoln County Trial Court
Administrator; BILL BRADBURY; OD ROY
TURNBAUGH: Uand STATE OF OREGON,
Petitioners on Review.
(CC 03C-11907; CA A122978; SC S52571)
On review from the Court of Appeals.”
Argued and submitted January 10, 2006.
Erika L. Hadlock. Assistant Solicitor General. Salem,
APP - 2
argued the cause and filed the brief for petitioners on
review. With her on the brief were Hardy Myers, Attorney
General, and Mary H. Williams, Solicitor General.
Rose Jade, Newport, argued the cause and filed the brief
for respondents on review.
Before Gillette, Presiding Justice, and Durham, Riggs,
Balmer and Kistler, Justices. **
GILLETTE, J.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is affirmed.
*Appeal from Marion County Circuit Court, Charles E.
Luukinen, Judge. 199 Or App 106, 110 P3d 594 (2005).
**De Muniz, C.J., and Carson, J., did not participate in
the consideration or decision of this case.
GILLETTE, J.
This matter requires us to determine the extent to which
the data compiled and used by various public entities and
officers in the process of selecting trial juries may be
obtained by a member of the public. Plaintiffs, as
members of the public,’ initially sought to gain access to
that information (hereinafter collectively referred to as
"jury pool records") by requesting it from the Oregon
Judicial Department, which uses the data to compile the
lists from which trial juries are chosen. When their
requests were unsuccessful, plaintiffs filed the present
case in circuit court. The circuit court granted summary
judgment to defendants and dismissed the complaint. The
Cour: of Appeals reversed. Jury Service Resource Center v.
Carson, 199 Or App 106, 110 P3d 594 (2005). We allowed
APP - 3
defendants’ petition for review and now reverse the
decision of the Court of Appeals and affirm the judgment
of the circuit court.
The Court of Appeals set out the facts as follows:
"Plaintiffs are Jury Services Resource Center
(JSRC), a nonprofit organization interested in
auditing the Lincoln County Circuit Court's jury
pool selection process; Shannon, a citizen interested
in scholarly research into the state's jury pool
selection process and a potential juror in Multnomah
County; and Langley, a man who has been convicted
of aggravated murder and was awaiting a retrial of
the penalty phase in that case in Marion County.
Defendants are the State of Oregon and various
state officials in the judicial and executive branches.
"The dispute in this-case centers on jury pool records
consisting of ‘source lists,’ 'master lists,’ and 'term
lists.’ 'Source lists' are lists provided to the State
Court Administrator by county election officials and
by Department of Transportation officials, as well as
‘any other sources approved by the Chief Justice of
the Supreme Court that will furnish a fair cross
section of the citizens of the county.’ ORS 10.215(1).
"Master lists' are ‘names selected at random from the
source lists' at the direction of the State Court
Administrator. Jd. The master lists contain not only
the names of prospective jurors but also their
addresses. ORS 10.215(4). 'Term lists' or 'term jury
lists' are names and addresses ‘selected at random
from the master jury list * * * at the direction of the
presiding judge for the judicial district or clerk of
court’ using a method prescribed by the presiding
judge of each judicial district. ORS 10.205(2); ORS
10.225(1). Because term lists are chosen before a
term begins, the composition of any term list is
APP - 4
always complete before the beginning of a trial at
which a jury chosen from the term list might sit.
ORS 10.225(1).
"JSRC and Langley requested that court officials
from, respectively, Lincoln County and Marion
County disclose to them the contents of source lists,
master lists, and term lists|, asserting, inter alia,
that the lists were public records.] When the county
judicial officials denied plaintiffs’ requests,
[plaintiffs] appealed to the Attorney General. See
ORS 192.450 (Attorney General reviews denial of
public record requests). He, too, denied the petitions,
explaining that the requested records were exempt
from disclosure under the [Public Records Law].
JSRC and Langley then consolidated their various
claims and sought judicial review under ORS
192.490 in Marion County Circuit Court. Shannon,
who had never filed a request for any documents,
was joined as a plaintiff; his claim was for
declaratory judgment under ORS 28.010. Instead of
responding to plaintiffs' complaint with an answer,
defendants moved for summary judgment. See
ORCP 47 B (party against whom a claim is brought
may move for summary judgment ‘at any time’).
Concluding that defendant's denials did not violate
the [Public Records Law] or any constitutional
provisions raised by plaintiffs, the trial court
granted defendants’ motion for summary judgment,
rejected a subsequent ‘motion for reconsideration, '
and entered judgment for defendants."
Jury Service, 199 Or App at 109-110 (footnote omitted). As
noted, plaintiffs appealed the adverse judgment to the
Court of Appeals.
In its opinion, the Court of Appeals rejected plaintiffs’
statutory arguments under the Oregon Public Records
APP - 5
Law, ORS 192.410 to ORS 192.505, and their arguments
under the Oregon Constitution, including article I, section
8 (free speech), section 10 (open courts), and section 20
(equal privileges and immunities). Jury Service, 199 Or
App at 112-16. However, the Court of Appeals agreed with
plaintiffs' argument that they were entitled to access to
jury pool records under the First Amendment to the
United States Constitution. ‘?’ Using a test of "experience
and logic" that the United States Supreme Court has
announced as the standard in disputes involving the
openness of judicial proceedings, the Court of Appeals
concluded that all stages of the jury selection process
presumptively are open, including the collection of names
for preliminary lists such as the jury pool records in this
matter. Jury Service, 199 Or App at 120-23.
Based on a brief historical survey, the Court of Appeals
concluded that jury selection traditionally has been an
open process. The court noted that, at common law, the
sheriff wrote names of qualified landowners on a sheet of
paper and summoned the listed men to appear at trial.
That process, the court declared, was "conducted in
public." Jd. at 121. The court also recited some evidence
suggesting that, in the past, jury lists were available to
the public in Oregon. Jd. at 121-22. In terms of whether
public access plays a significant role in the process at
hand, the Court of Appeals dismissed the idea that the
process by which jury lists are created could be separated
analytically from the trial itself. The issue, the Court of
Appeals stressed, involved both fairness in fact in the jury
selection process and also the appearance of fairness. Id.
at 122.
Based on that reasoning, the Court of Appeals concluded
that the jury pool records should be presumed to be public
and, the court went on to state, "[uJnder a system such as
Oregon's, in which the particular jury ultimately
empaneled in any given trial is drawn randomly from a
pool that is itself selected before a jury term, adequate
APP - 6
protection of the public's right (as well as the defendant's
and potential jurors’ rights) must begin at the source of
the process itself, at the aptly named ‘source lists."" Jd. at
122-23. The Court of Appeals further opined, "Opening
voir dire does not alone suffice to guarantee that a jury is
untainted, because taint at the source could flow forward
at each subsequent step. Thus, to protect the values
guaranteed by the First Amendment right of access to the
jury selection process, that process must be open from the
first step." Jd. at 123. Notwithstanding that conclusion,
however, the court left the door open for defendants to
deny plaintiffs access to the records that they seek, at
least in cases in which there is a showing that denying
public access serves a higher interest and the restriction,
if any, is narrow in scope. Jd. We allowed defendants’
petition for review.
We begin our own analysis by stating that, plaintiffs’
arguments to the contrary notwithstanding, the Court of
Appeals did not err in rejecting plaintiffs’ arguments
respecting the Public Records Law and Article I, sections
8, 10, and 20 of the Oregon Constitution. We agree with
the fundamentals of the analysis that that court employed
in rejecting those claims, and see no purpose to be served
by paraphrasing the analysis here. We therefore confine
our discussion to the proposition that the Court of
Appeals accepted, namely, plaintiffs’ contention that the
First Amendment to the United States Constitution
requires defendants to give plaintiffs full access to jury
pool records, including source lists, master lists, and jury
term lists.
In a line of cases issued over the past quarter century, the
United States Supreme Court has established that the
First Amendment encompasses a public right to observe
the workings of at least some parts of the administration
of justice, particularly criminal trials. Consequently, trials
must be conducted openly with full access to the public.
"The right of access to places traditionally open to the
APP - 7
public, as criminal trials have long been, may be seen as
assured by the amalgam of the First Amendment
guarantees of speech and press; and their affinity to the
right of assembly is not without relevance." Richmond
Newspapers, Inc. v. Virginia, 448 US 5855, 577, 100 S Ct
2814, 65 L Ed 2d 973 (1980) (plurality opinion). The First
Amendment ensures access to criminal trials because of a
“common understanding that 'a major purpose of that
Amendment was to protect the free discussion of
governmental affairs." Globe Newspaper Co. v. Superior
Court, 457 US 596, 604, 102 S Ct 2613, 73 L Ed 2d 248
(1982), quoting Mills v. Alabama, 384 US 214, 218, 86S
Ct 1434, 16 L Ed 2d 484 (1966). "Thus to the extent that
the First Amendment embraces a right of access to
criminal trials, it is to ensure that this constitutionally
protected ‘discussion of governmental affairs’ is an
informed one.” Jd. at 604-05. The administration of
justice, and criminal trial proceedings in particular, the
Supreme Court has emphasized, entail a significant
governmental function that must remain open to public
scrutiny:
"{T] he right of access to criminal trials plays a
particularly significant role in the functioning of the
judicial process and the government as a whole.
Public scrutiny of a criminal trial enhances the
quality and safeguards the integrity of the
factfinding process, with benefits to both the
defendant and to society as a whole. Moreover,
public access to the criminal trial fosters an
appearance of fairness, thereby heightening public
respect for the judicial process. And in the broadest
terms, public access to criminal trials permits the
public to participate in and serve as a check upon
the judicial process -- an essential component in our
structure of self-government. In sum, the :
institutional value of the open criminal trial is
recognized in both logic and experience."
APP - 8
Id. at 606 (footnotes omitted).
Subsequent cases, such as Press-Enterprise Co. v.
Superior Court, 464 US 501, 104 S Ct 819, 78 L Ed 2d 629
(1984) (Press-Enterprise I) and Press-Enterprise Co. v.
Superior Court, 478 US 1, 106 S Ct 2735, 92 L Ed 2d 1
(1986) (Press-Enterprise II), have clarified the scope and
applicability of the aforesaid principles. Like their
predecessors, those cases involved efforts by the news
media, who claimed to represent the public, to gain access
to certain parts of trial court proceedings. In Press-
Enterprise I, a California state trial court closed the voir
dire questioning of individual potential jurors to the
public during a murder trial. Balancing the interest in
governmental transparency against the privacy of
individual jurors' discussions of sensitive personal
experiences, the trial court later ruled that the transcripts
of voir dire also would not be released to the public. The
case eventually made its way to the United States
Supreme Court, which vacated the trial court's rulings.
The Court stated: "The process of juror selection is itself a
matter of importance, not simply to the adversaries but to
the criminal justice system." 464 US at 505. According to
the Court, "historical evidence * * * reveals that, since the
development of trial by jury, the process of selection of
jurors has presumptively been a public process with
exceptions only for good cause shown." Jd. In particular,
the court expressed its concern that the trial court had
opened only three days of a six-week voir dire process to
the public and had refused to release the transcript of the
closed parts of the proceeding, even though most of the
information elicited during voir dire was not sensitive in
nature. Jd. at 513.
In Press-Enterprise II, a California state-court excluded
the public from a preliminary hearing in a murder case.
Under then-existing California law, preliminary hearings
were generally open to the public. but the magistrate
could exclude the public if exclusion were necessary to
APP - 9
protect the defendant's right to a fair and impartial trial.
In Press-Enterprise II, the magistrate had granted the
defendant's motion (which the state had not opposed) to
exclude the public, including the news media. On the
appeal of the excluded media, the United States Supreme
Court again reversed. The Court observed that its cases
under the First Amendment right of access to criminal
proceedings had emphasized the history of open criminal
trials and the positive role of that openness. 478 US at 8-
9. Referring back to its discussion in earlier cases
summarizing the history of openness in criminal trials
and jury selection, and its salutary effect on both basic
fairness and the appearance of fairness of the criminal
trial, the Court stated:
"These considerations of experience and logic are, of
course, related, for history and experience shape the
functioning of governmental processes. If the
particular proceeding in question passes these tests
of experience and logic, a qualified First Amendment
right of public access attaches. But even when a
right of access attaches, it is not absolute. * * *
While open criminal proceedings give assurances of
fairness to both the public and the accused, there
are some limited circumstances in which the right of
the accused to a fair trial might be undermined by
publicity."
Press-Enterprise II, 478 US at 9 (citation omitted).
Historically, the Court observed, preliminary hearings
generally have been held in open court where the public
may attend. Jd. at 10. In addition, the Court concluded
that public access to preliminary hearings "plays a
particularly significant positive role in the actual
functioning of the process." Jd. at 11-12. The Court noted
that Richmond Newspapers, Globe Newspaper, and Press-
Enterprise I established that public access to criminal
trials and to jury selection at those trials "is essential to
the proper functioning of the criminal justice system," and
APP - 10
that "California preliminary hearings are sufficiently like
a trial to justify the same conclusion." Jd. at 12. It
followed that the California court had erred in closing the
preliminary hearing to the public. Jd. at 15. Read
together. Richmond Newspapers, Globe Newspaper, Press-
Enterprise I, and Press-Enterprise II establish that certain
forms of judicial proceedings may be characterized as
"presumptively open," based on history and function. The
historical record indicates whether the process has been
one that was open to the press and general public, and the
particular function of the process within the broader
criminal trial context determines whether public access
plays a significant positive role. Press-Enterprise II, 478
US at 8-9. If the test of experience and logic is satisfied,
then the particular process is presumptively open.
Nevertheless, a party successfully may overcome that
presumption of openness by demonstrating an overriding
interest, i.e., by a showing that closure is essential to
preserve “higher values” and is "narrowly tailored to serve
that interest." Jd. at 9-10, 13-14.
With the foregoing guidelines in mind, we turn to-a
determination whether the principles to be derived from
the Press Enterprise cases and their predecessors dictate
the conclusion that the Court of Appeals reached in this
case.
They do not. Although historical evidence supports the
idea that trials, including the process of selecting
particular jurors at the threshold of trial, were open to the
public, Press-Enterprise I, 464 US at 505-10, the process
of selecting potential jurors has never been open in that
way. At English common law, the task of preliminarily
selecting jurors was delegated to the discretion of a
trusted public official, namely, the sheriff. See Sir
Matthew Hale, The History of the Common Law of
England 337 (6th ed 1820) (describing role of sheriff).
Under that system, the sheriff enjoyed enormous
discretion in deciding how to select trial jurors. See
APP - 11
William L. Murfree, A Treatise On the Law of Sheriffs and
Ministerial Officers 177 (2d ed 1890) ("There seems to
have been no limitation on [the sheriff's] choice.").
In the United States, however, legislatures in the
nineteenth century created statutory procedural
standards for identifying potential jurors that were less
discretionary. Generally speaking,
"(t]he statutes usually specif[ied] the number [of
jurors] to be annually selected in each county, which
selection is made by town authorities, county courts,
county commissioners, or other officers, and the list
so prepared is transmitted to the clerk of the county
or circuit court, where it is filed, and the names
copied upon slips of paper which are placed in the
jury box ready for the drawing."
Seymour D. Thompson & Edwin G. Merriam, A Treatise
on the Organization, Custody and Conduct of Juries,
Including Grand Juries 41 (1882). Even if we were to
assume from the foregoing that the American experience
could be characterized as more "open," in the sense that
certain statutes restricted discretion, we know of no
authority that permitted members of the public to
scrutinize any preliminary or tentative lists that may
have ted to the final one. Certainly, there is no historical
support for the kind of openness that plaintiffs demand.
The next question under the United States Supreme
Court's cases is whether public access to jury lists "plays a
particularly significant positive role in the actual
functioning of the process." Press-Enterprise II, 478 US at
11. As noted, the United States Supreme Court has
emphasized the function of openness in criminal trials, in
which the public may observe the process. "The value of
openness lies in the fact that people not actually
attending trials can have confidence that standards of
APP - 12
fairness are being observed; the sure knowledge that
anyone is free to attend gives assurance that established
procedures are being followed and that deviations will
become known." Press-Enterprise I, 464 US at 508
(emphasis in original). That is. criminal trials should be
conducted openly, with an audience, so that the public
may verify that the government is acting fairly in
prosecuting defendants. But does that unremarkable
proposition respecting the trial process itself translate
into a requirement of transparency throughout the multi-
step, pretrial process that produces a pane! of venire to
serve at the trial?
We think not. We note especially that, in concluding that
public participation plays a role in the governmental
function of selecting names for jury lists, and that a
qualified right to jury records therefore falls within the
protections of the First Amendment, the Court of Appeals
proceeded from several dubious premises. First, it
asserted that, "although access to jury lists is not the
same as access to voir dire, the differences are not
significant." Jury Service, 199 Or App at 120. Second, it
opined that the timing of the process of compiling jury
lists is of no importance, even though, "[w]hen that
process [of compiling juror information] takes place, the
term during which the selected jurors will sit has not
begun." Jd. at 122. Third, the Court of Appeals concluded
that, because the jury selection process at trial is open to
the public, "that process must be open from the first step."
Id. at 123.
The best way that we can summarize our criticism of the
foregoing is to say that the Court of Appeals mistook
access to a public trial for access to government
information. The United States Supreme Court's
emphasis in the Press-Enterprise cases was on access of
the public to the trial itself, not on the process that lead to
the selection of the actors in that event. Those cases
establish that the public has a right to attend criminal
APP - 13
trials. The selection of names for the list of prospective
jurors, however, is one or more (sometimes several) steps
removed from the trial itself. Unlike the Press-Enterprise
cases, plaintiffs here do not assert a right to view a
process, such as a trial, but instead demand to see a work
product that government employees have created
pursuant to statutory directives. See ORS 10.215
(describing creation of master list); ORS 10.225
(describing creation of term jury lists). Unlike actual
trials, public access plays no significant role in the official
and largely rote function of collecting and winnowing
names for jury lists.
In fact, as plaintiffs themselves have framed it, this
dispute actually is about plaintiffs’ asserted right to
examine the work product of governmental officials, after
those officials have combed through official records and
made selections from lists of names to determine which
citizens might be called for jury duty and which ones will
not. So understood, the dispute is far more analogous to
cases in which the United States Supreme Court has
ruled that the general public does not have a First
Amendment right of access to places, information, and
documents within the government's control than it is to
the Press-Enterprise cases. See, e.g., Los Angeles Police
Department v. United Reporting Publishing Corp., 528 US
32, 120 S Ct 483, 145 L Ed 2d 451 (1999) (First
Amendment does not require police department to release
arrestees' addresses to general public); Houchins v.
KQED, Inc., 438 US 1, 89 S Ct 2588, 57 L Ed 2d 553
(1978) (First Amendment does not give journalists right to
photograph jail facilities). In our view, the Press-
Enterprise cases do not support plaintiffs' theory, and we
know of no other source of law that will better serve them.
We conclude that there is no right of access under the
First Amendment to jury pool records of the kind sought
here. As previously noted, we have considered the parties'
other arguments not premised on the First Amendment
APP - 14
and agree with the Court of Appeals that those arguments
are not well taken. It follows that the trial court's grant of
summary judgment to defendants was correct. The Court
of Appeals erred in ruling to the contrary.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is affirmed.
1. Plaintiff Langley presently is the defendant in a
pending aggravated murder case, but he does not rely on
that status in this proceeding.
2. The First Amendment to the United States
Constitution provides, in part: "Congress shall make no
law * * * abridging the freedom of speech, or of the press *
kM
ee a ee eee ee ee ee
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| The denial by the Oregon Supreme Court of Plaintiffs
| Petition for Reconsideration, dated May 23, 2006
IN THE SUPREME COURT OF THE STATE OF
OREGON
JURY SERVICE RESOURCE CENTER; 3 DAVID
SHANNON; and ROBERT PAUL LANGLEY, JR.,
Plaintiffs-Appellants
Respondents on Review,
PAUL uv. DE MUNIZ; TKINGSLEY CLICK, JOffice of the
State Court Administrator, Oregon Judicial
Department: 7 PAUL LIPSCOMB; 3 JAMES
MURCHISON, Office of the Marion County Circuit
Court Triai Court Administrator; IDALE
KOCH;7° DOUGLAS BRAY, 7 Office of the Multnomah
APP - 15
County Circuit Court Trial Court
Administrator; GROBERT HUCKLEBERRY;C NANCY
LAMVICK, DOffice of the Lincoln County Trial Court
Administrator: BILL BRADBURY; C ROY
TURNBAUGH; “and STATE OF OREGON,
Defendants-Respondents,
Petitioners on Review.
Marion County Circuit Court No. 03C-11907
SC $52571
CA A122978
ORDER DENYING PETITION FOR
RECONSIDERATION
Upon consideration by the court.
The court has considered the petition for reconsideration
and orders that iv be denied.
Dated this 23" day of May 2006.
De Muniz, C.J., and Carson, J., not participating
/signed Robert D. Durham, Presiding Justice/
eee eee a eee eae ee
eee aa eae eee er
Letter from the Supreme Court of Oregon to counsel
requesting briefing on all federal issues, dated September |
27, 2005
“Dear Ms. Hadlock and Ms. Jade:
The Court has granted review in this proceeding. ORAP
9.20(2) provides that the Court “may consider other issues
that were before the Court of Appeals.” Pursuant to that
authorization, the Court intends to consider on review
whether defendants violated any pertinent state statute,
including Oregon’s Public Records Law, end any provision
of the state or federal constitution, in addition to the First
APP - 16
Amendment to the United States Constitution, in refusing
to disclose source, master, and term lists of jurors.
To assist in that endeavor, the Court requests, pursuant
to ORAP 9.20(3), that the parties address those issues in
their briefs on the merits.
Sincerely,
/signed John Koskela, Records Section/ Supreme Court of
Oregon, letter dated September 27, 2005/!
The Decision of the Court of Appeals of Oregon,
Jury Service Resource Center v. Carson, 199 Or. App. 106, |
110 P. 3d 594 (2005)
FILED: April 13, 2005
IN THE COURT OF APPEALS OF THE STATE OF
OREGON
JURY SERVICE RESOURCE CENTER, = DAVID
SHANNON,Oand ROBERT PAUL LANGLEY, JR.,
Appellants,
WALLACE CARSON, JR.; IKINGLSEY CLICK, 7Office of
the State Court Administrator, JOregon Judicial
Department; JPAUL LIPSCOMB; JAMES
MURCHISON, 2Office of the Marion County Circuit
Court Trial Court Administrator; JDALE KOCH;
DOUGLAS BRAY, Office of the Multnomah County
‘A copy of the letter was included as Attachment page 8
to Plaintiffs’ Petition for Reconsideration filed with the
Oregon Supreme Court on May 6, 2006
APP - 17
Circuit Court Trial Court Administrator; TROBERT
HUCKLEBERRY; NANCY LAMVIC,cOffice of the
Lincoln County Trial Court Administrator; TBILL
BRADBURY; ROY TURNBAUGH; Zand STATE OF
OREGON,
Respondents.
03C-11907; A122978
Appeal from Circuit Court, Marion County.
Charles E. Luukinen, Judge.
Argued and submitted November 23, 2004.
Rose Jade argued the cause for appellants. With her on
the brief was Karen A. Steele.
Erika L. Hadlock, Assistant Attorney General, argued the
cause and filed the brief for respondents. With her on the
brief were Hardy Myers, Attorney General, and Mary H.
Williams, Solicitor General.
Before Edmonds, Presiding Judge, and Wollheim and
Schuman, Judges.
SCHUMAN, J.
Reversed and remanded.
SCHUMAN, J.
The issue in this case is whether defendants’ refusal to
disclose certain jury poo! records to plaintiffs violates
either the Oregon Public Records Law (PRL), ORS
192.410 - 192.505, or some provision of the state or federal
constitutions. The trial court granted defendants’ motion
for summary judgment. Because we conclude that
defendants are not entitled to judgment as a matter of
law, we reverse and remand.
APP - 18
The relevant facts are either procedural or relate to the
identity of the parties, and they are not in dispute.
Plaintiffs are Jury Services Resource Center (JSRC), a
nonprofit organization interested in auditing the Lincoln
County Circuit Court's jury pool selection process:
Shannon, a citizen interested in scholarly research into
the state's jury pool selection process and a potential juror
in Multnomah County; and Langley, a man who has been
convicted of aggravated murder and was awaiting a
retrial of the penalty phase in that case in Marion
County. Defendants are the State of Oregon and various
state officials in the judicial and executive branches.
The dispute in this case centers on jury pool records
consisting of "source lists," "master lists," and "term lists."
"Source lists" are lists provided to the State Court
Administrator by county election officials and by
Department of Transportation officials, as well as "any
other sources approved by the Chief Justice of the
Supreme Court that will furnish a fair cross section of the
citizens of the county." ORS 10.215(1). "Master lists" are
"names selected at random from the source lists" at the
direction of the State Court Administrator. Jd. The master
lists contain not only the names of prospective jurors but
also their addresses. ORS 10.215(4). "Term lists" or "term
jury lists" are names and addresses "selected at random
from the master jury list * * * at the direction of the
presiding judge for the judicial district or clerk of court"
using a method prescribed by the presiding judge of each
judicial district. ORS 10.205(2); ORS 10.225(1). Because
term lists are chosen before a term begins, the
composition of any term list is always complete before the
beginning of a trial at which a jury chosen from the term
list might sit. ORS 10.225(1).
JSRC and Langley requested that court officials om,
respectively, Lincoln County and Marion County disclose
to them the contents of source lists, master lists, and term
lists. When the county judicial officials denied plaintiffs
APP - 19
requests, they appealed to the Attorney General. See ORS
192.450 (Attorney General reviews denial of public record
requests). He, too, denied the petitions, explaining that
the requested records were exempt from disclosure under
the PRL. JSRC and Langley then consolidated their
various claims and sought judicial review under ORS
192.490 in Marion County Circuit Court. Shannon, who
had never filed a request for any documents, was joined as
a plaintiff; his claim was for declaratory judgment under
ORS 28.010." Instead of responding to plaintiffs’
complaint with an answer, defendants moved for
summary judgment. See ORCP 47 B (party against whom
a claim is brought may move for summary judgment "at
any time"). Concluding that defendant's denials did not
violate the PRL or any constitutional provisions raised by
plaintiffs, the trial court granted defendants’ motion for
summary judgment, rejected a subsequent "motion for
reconsideration,” and entered judgment for defendants.
This appeal ensued.
Although plaintiffs' appeal contains eight assignments of
error and conflates the various parties and their claims
and defenses, it clearly and accurately states the issues
before us: Does the PRL permit defendants to deny
plaintiffs access to the requested documents? If so, do
plaintiffs nonetheless have a right of access to the
documents under the state or federal constitution?
Of course, if some constitutional provision confers on
plaintiffs a constitutional right of access to the
information, the fact that a statute permits denial of
access is irrelevant; the statute would be unconstitutional.
Plaintiffs cite several state and federal constitutional
provisions as sources of the asserted right of access to jury
lists[.]***Our conclusion that defendants have not
violated any of plaintiffs' rights under the Oregon
Constitution does not end the constitutional inquiry.
Plaintiffs may have more or greater rights under the
federal constitution, and, if they do, the state is powerless
APP - 20
to infringe on them even if it could do so without violating
its own constitution. We therefore turn to plaintiffs' claim
under the First Amendment to the United States
Constitution: the claim that, as members of the public,
they have a right of access to documents relevant to the
jury selection process.
That claim finds support in Press-Enterprise Co. v.
Superior Court, 464 US 501, 104 S Ct 819, 78 L Ed 2d 629
(1984) (Press-Enterprise I). In that case, the plaintiff
contended that it had a right to attend the voir dire
proceedings in a capital murder trial and that the right
was separate and distinct from the accused's right to a
public trial in the underlying case. The trial court denied
access and the California Supreme Court denied review.
Id. at 504-05. The United States Supreme Court granted
certiorari and reversed. Reviewing the history of criminal
trials, the Court concluded that, "beginning in the
sixteenth century, jurors were selected in public" and that
"{thhe presumptive openness of the jury selection process
in England, not surprisingly, carried over into proceedings
in colonial America." Jd. at 507-08. The Court described
the continuing value of cpenness:
“The open trial thus plays as important a role in the
administration of justice today as it did for centuries
before our separation from England. The value of
openness lies in the fact that people not actually
attending trials can have confidence that standards
of fairness are being observed; the sure knowledge
that anyone is free to attend gives assurance that
established procedures are being followed and that
deviations will become known. Openness thus
enhances both the basic fairness of the criminal] trial
and the appearance of fairness so essential to public
confidence in the system."
Id. at 508 (emphasis in original). Thus, the Court
APP - 21
concluded, the jury selection process is presumptively
open, and the presumption can be overcome only if those
urging closure can show “an overriding interest based on
findings that closure is essential to preserve higher values
and is narrowly tailored to serve that interest." Jd. at 510.
The Court found that. although juror privacy could, in
some instances, be such an interest--for example, where
‘the juror had to answer persona! questions as part of the
voir dire screening--there was nonetheless no justification
for denying access to the entire process. Id. at 511-13.
Although three justices wrote concurring opinions, none
dissented, and all agreed that the right of access to
criminal trials belonged not to the defendant but to the
public.
The Court returned to the subject of access to trials and
elaborated on it in Press-Enterprise Co. v. Superior Court,
478 US 1, 106 S Ct 2735, 92 L Ed 2d 1 (1986) (Press-
Enterprise II). The issue, as described by the Court, was
"whether [the plaintiff] has a First Amendment right of
access to the transcript of a preliminary hearing growing
out of a criminal! prosecution." Jd. at 3. After a 41-day
hearing preceding a capital murder trial, the plaintiff
sought release of the transcript. The presiding magistrate
refused and the California Supreme Court agreed, holding
that the First Amendment right described in Press-
Enterprise I applied only to trials themselves and not to
pretrial proceedings. Again, the United States Supreme
Court granted certiorari and reversed. Jd. at 6.
The Court reemphasized that the right at issue emanated
from the First Amendment, not the Sixth, and that it
belonged to the p»blic. Jd. at 7-8. The Court also
emphasized that the applicability of the right did not
depend on the label given to the even: to which the
plaintiff sought access. Jd. Rather, the Court articulated
what has come to be known as the "experience/logic" test.
In re Disclosure of Juror Names and Addresses, 233 Mich
App 604, 610, 592 NW2d 798, 801 (1999). To determine™
whether a particular aspect of a criminal proceeding is
presumptively open, the Court will look first to history to
determine "whether the place and process have
historically been open to the press and general public."
Press-Enterprise II, 478 US at 8. It will then determine
"whether public access plays a significant positive role in
the functionisg of the particular process in question." Jd.
(citing Globe Newspaper Co. v. Superior Court, 457 US
596, 606, 102 S Ct 2613, 73 L Ed 2d 248 (1982)). If the
process meets the test of history and logic, then it is
presumptively open, and "|t]he presumption may be
overcome only by an overriding interest based on findings
that closure is essential to preserve higher values and is
narrowly tailored to serve that interest." Press-Enterprise
II, 478 US at 9 (quoting Press-Enterprise I, 464 US at
510). Applying the foregoing criteria, the Court concluded
that the preliminary hearing was presumptively open,
that the interest in avoiding pretrial publicity was not
sufficiently compelling, and that, in any event, closing the
entire 41 days of the hearing was not a narrowly tailored
prophylactic measure. Press-Enterprise II, 478 US at 13-
15.
The two Press-Enterprise cases, then, establish a test for
closure that
"is extremely hard to meet. In fact, since [1979], the
Court has found a qualified First Amendment right
of access to practically every aspect of the judicial
process * * *. Lower courts have followed the
Supreme Court's lead, and have expanded the areas
of access, with [the Second Circuit], for example,
finding a qualified access right extending not only to
pretrial hearings, but also to the Criminal Justice
Act compensation forms filed by appointed counsel
for indigent defendants. The Second Circuit has also
found a qualified access right extending to written
documents filed in connection with pretrial
suppression motions and other motions, even when
APP - 23
they include wiretap material|[.]"
Kimba M. Wood, Reexamining the Access Doctrine, 69 S
Cal L Rev 1105, 1107-08 (1996) (citations omitted). The
Ninth Circuit has also expanded on the Supreme Court's
case law, applying the principles from the Press-
Enterprise cases to establish rights of access to pretrial
proceedings. Seattle Times Co. v. U.S. Dist. Court for
Western Dist. of Washington, $45 F2d 1513, 1517 (9th Cir
1988) (bail eligibility proceeding). But see Times Mirror
Co. v. U.S., 873 F2d 1210, 1220 (9th Cir 1989) (no public
access to search warrant affidavits during investigation
and before indictment).
Although “the majority of courts that have addressed [the]
issue have recognized a right of access to juror names and
addresses," State ex rel Beacon Journal v. Bond, 98 Ohio
St 3d 146, 156, 781 NE2d 180, 192 (2002), the cases
typically deal with that information in the context-of voir
dire and not general jury lists. However, we believe that,
although access to jury lists is not the same as access to
voir dire, the differences are not significant.
The Supreme Court's conclusion that the voir dire process
is presumptively open to the public states the operative
principle more generally: it announces that "jurors were
selected in public" and that "(t]he presumptive openness of
the jury selection process in England, not surprisingly,
carried over into proceedings in colonial America." Press-
Enterprise I, 464 US at 507-08 (emphasis added). The
reason for using genera! terms is that, at the historical
moment under discussion, jurors were selected directly
from the among the qualified members of the public.
The introduction of a multi-step process complicates our
inquiry for two reasons. First, it requires us to determine
whether a modern elaboration of a traditional practice is
itself traditional. Second, it requires us to determine
APP - 24
whether the rationale that supports public access to the
part of the jury selection process that occurs in
conjunction with an identifiable trial also applies to those
parts of the process that occur before any particular
dispute has entered the judiciai system. We conclude that
the answers to these inquiries point in the direction of
requiring access to jury lists in criminal trials.
In other contexts, Oregon courts have held that, when a
historical fact or circumstance evolves over time,
constitutional principles applicable to the historical fact or
circumstance apply with equal force to the evolved fact or
circumstance. Thus, in State v. Robertson, 293 Or 402,
412, 649 P2d 569 (1982), the Supreme Court's list of
examples of "historical exceptions" to free speech
principles includes "perjury, solicitation or verbal
assistance in crime, some forms of theft, forgery and fraud
and their contemporary variants." (Emphasis added.); see
also In re Lasswell, 296 Or 121, 124, 673 P2d 855 (1983)
(exception applies to speech prohibition that "falls within
an original or modern version of a historically established
exception" (emphasis added)). In discussing the right to
bear arms under Article I, section 27, the court held, "The
appropriate inquiry in the case at bar is whether a kind of
weapon, as modified by its modern design and function, is
of the sort commonly used by individuals for personal
defense during either the revolutionary and post-
revolutionary era, or in 1859 when Oregon's constitution
was adopted." State v. Delgado, 298 Or 395, 490-01, 692
P2d 610 (1984) (emphasis added). The "classes of citizens"
protected by the antidiscrimination principles that the
framers adopted in Article I, section 20, include not only
the groups that the framers would have included, but
their modern counterparts as well. Cox v. State of Oregon,
191 Or App 1, 7, 80 P3d 514 (2003) (Schuman, J.,
concurring). _
Further, to the extent the historical record provides useful
information, it indicates an open process. According to Sir
APP - 25
Matthew Hale, The History of the Common Law of
England 337-39 (Charles Runnington ed 1820), a writ
would issue to the county sheriff, who would summon 24
qualified property-owning men from the local
neighborhood and write their names on a smal! sheet of
parchment called a "panel." The empaneled men would
then "be brought, or summoned * * * for their appearance
at the trial; whereby the parties may have notice of the
jurors, and of their sufficiency and indifferency, that so
they may make their challenges upon the appearance of
the jurors, if there be just cause." Jd. at 340. After
challenges, 12 members would be selected. Thus, the
entire process was conducted in public. See also William
Blackstone, Commentaries on the Laws of England 518-23
(Wm. H. Browne ed 1892).
In Oregon, before the enactment of ORS 10.215 in 1985,
no provision of law kept jury lists from public disclosure
and, although the evidence is not extensive, there is
reason to believe that the accepted practice in at least
some courts was to make them available for inspection. In
Bramwell v. Rowland, 123 Or 33, 36, 261 P 57 (1927), for
example, the court examined a motion for a change of
venue based on the assertion that "the inhabitants of
Lincoln [C]ounty, where this action was commenced, were
so prejudiced against the defendant that he could not
expect an impartial trial in that county." The court recited
that an interested party "had examined the jury list, and
found that only a verv small percentage of the jurors
were" potentially biased. Jd. at 39. Further, in hearings on
House Bill (HB) 2545 (1985), which ultimately became
ORS 10.215, at least one lawyer-legislator asserted that it
was his practice to examine jury lists before trial. Tape
Recording, House Judiciary Committee, Subcommittee 2,
HB 2545, Apr 12, 1985, Tape 435, Side A (colloquy among
R. William Linden, State Court Administrator; Rep Mike
Kopetski; and Rep Stan Bunn). In sum, we see no reason
why the historical respect paid to new aspects of jury
selection such as the assembly of jury lists should differ
APP - 26
from the respect paid to the original ones such as voir
dire.
The timing of jury list creation presents a different
question. Although Press-Enterprise I] and lower court
decisions hold that the right of access applies not only to
the trial itself but also to preliminary hearings and other
proceedings that occur before an actua! jury is empaneled,
that fact does not address the question whether the right
also applies to procedures that are as remote from actual
trials as the assembly of jury lists. When that process
takes place, the term during which the selected jurors will
sit has not begun. ORS 10.2251). However, we believ:
that fact to be irrelevant. The United States Suprem«
Court has noted the importance of a jury selection system
that ensures not only fairness itself but the public
appearance of fairness. "|P]ublic proceedings vindicate the
concerns of the victims and the community in kng#™&\g
that offenders are being brought to account for their
criminal conduct by jurors fairly and open/v selected
Press-Enterprise 1, 464 US at 509 (emphasis added). Both
federal and state law recognize the fundamenta! value of
Lockhart v. McCree, 476 US 162, 184, 106 S Ct 1758, 90 L
Ed 2d 137 (1986) ("[T]he Constitution presupposes that a
jury selected from a fair cross section of the community is
impartial[.}"); 28 USC § 1861 ("It is the policy of the
United States that all litigants in federal courts entitled
to trial by jury shall have the right to grand and petit
juries selected at random from a fair cross section of the
community in the district or division wherein the court
convenes."); ORS 10.215(1) (requiring source list that "will
furnish a fair cross section of the citizens of the county").
Under a system such as Oregon's, in which the particular
jury ultimately empaneled in any given trial is drawn
randomly from a poo! that is itself selected before a jury
term, adequate protection of the public's right (as well as
the defendant's and potential jurors’ rights) must begin at
APP - 27
the source of the process itself, at the aptly named "source
lists." ORS 10.215. Opening voir dire does not alone
suffice to guarantee that a jury is untainted, because taint
at the source could flow forward at each subsequent step.
Thus, to protect the values guaranteed by the First
Amendment right of access to the jurv selection process,
that process must be open from the first step. We
therefore conciude that the source lists, master lists, and
jury term lists used in criminal! trials are presumptively
open to the public. Because Oregon does not use different
lists for criminal and civil juries, all the lists are
presumptively open. “’
That conclusion, however, does not mean that defendants
must now provide plaintiffs the relief that they seek.
Defendants may overcome the presumption in favor of
openness by establishing that closure serves an overriding
interest and that it will be carried out by narrowly
tailored means. See Press-Enterprise II, 478 US at 13-14.
That determination occurs on a case-by-case basis and
must be accompanied by "specific, on the record findings."
Id. at 13. Further, the party seeking nondisclosure has
the burden of presenting facts supporting it. Oregonian
Pub. Co. v. U. S. Dist. Court for Dist. of Oregon, 920 F2d
1462, 1467 (9th Cir 1990), cert den, 501 US 1210 (1991).
For the foregoing reasons, we reverse the trial court's
grant of summary judgment and remand so that
defendants have the opportunity to rebut the presumption
in favor of plaintiffs’ access to the lists. ‘®
Reversed and remanded.
1. We presume that Shannon's claim matches the other
plaintiffs’, that is, he seeks a declaration that either the
PRL or some constitutional provision compels the state to
disclose jury pool information.
APP - 28
2. Whether jury lists are public records under the PRL is
an open question; the "court records" referred to in ORS
192.410(4) may include only the records listed in ORS
7.010, which do not include jury lists. However, we need
not decide that issue because we conclude that ORS
10.215(1) prohibits disclosure. Thus, if jury lists are not
public records, ORS 10.215(1) prohibits disclosure by its
own terms. If jury lists are public records, ORS 10.215(1)
is one of the statutory exceptions to the PRL referred to in
ORS 192.420(1). ORS 192.502(9). Although we presume
that jury lists are public records and ultimately conclude
that the PRL does not require courts to disclose them,
that conclusion does not imply that the legislature could
pass a statute that did contain such a requirement
without violating separation of powers by unduly
burdening the Judicial Department. Or Const, Art III, § 1.
3. Plaintiffs also cite ORS 1.025, ORS 7.110, ORS 8.125,
ORS 192.420, ORS 192.430, and ORS 357.001. They offer
no explanation of how those statutes "specifically" provide
that jury records may be disclosed.
4. Defendants argue that plaintiff Shannon, the only
plaintiff bringing constitutional claims under the
Declaratory Judgment Act, ORS 28.010, lacks standing
under that statute because he "seeks merely to vindicate a
public right to have the laws of the state properly enforced
and administered,” Eacret v. Holmes, 215 Or 121, 125, 333
P2d 741 (1958), and has only "an abstract interest in the
correct application or the validity of a law," League of
Oregon Cities v. State of Oregon, 334 Or 645, 658, 56 P3d
892 (2002). We hold that those requirements do not apply
when the right at issue is either the open courts provision
of Article I, section 10. of the Oregon Constitution, or the
"right of access to information about trials" under the
First Amenedynent, because, as we discuss below, the
courts have ewplicitly held that those rights belong to the
public generaily and not to any individual more than
another.
APP - 29
5. Accord Pantos v. City and County of San Francisco, 151
Cal App 3d 258, 262, 198 Cal Rptr 489, 492 (1984) ("The
master list of qualified jurors has the status of a judicial
record, available to the public in general. There are no
exemptions and no compelling reasons for
nondisclosure.").
6. In order to prevent delay and the needless expenditure
of judicial resources, we offer the following observation.
Although protecting highly personal information about
jurors may be an adequately compelling interest to
override the presumption in favor of access, merely
protecting their names and addresses is not,inthe _
absence of unusual circumstances such as threats to their
safety. Press-Enterprise II, 464 US at 511-12.
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Excerpts from the Marion Co. Circuit Court trial judge’s
letter opinions dismissing Plaintiffs’ claims
“September 10, 2003
*** Dear Counsel, This matter came before the Court
upon the Defendant’s Motion for Summary Judgment. ***
At least in the broadest definition, these jury lists are
public records within the definition of ORS 192.410(4).
Any request for public records such as occurred here by
Plaintiffs creates a justiciable controversy. Simply in this
case, the records sought by Plaintiffs are exempt from
disclosure pursuant to ORS 192.502(9). Likewise, I have
ruled that ORS 10.215 and 10.275 provide the exclusive
means to compel production of the jury lists sought. This
Court has subject matter jurisdiction to determine that
the records sought are within the scope of these statutory
provisions. Plaintiffs also raise certain constitutional
claims concerning access to the Courts. The provisions of
ORS 10.275 coupled with 136.005 provide a procedure for
litigants to challenge the jury selection process. As Justice
APP - 30
Gillette noted in SER Click v. Brownhill, ibid, [331 Or
500 (2000)], a criminal defendant must have some process
to challenge the jury selection process. The legislature has
established such a process. That process meets
constitutional mandates, State v. Rogers, 334 Or. 633, 55
P.2d 488 (2002). Plaintiffs make several arguments about
policy and need for different procedures or more
accessability to such records, particularly for non
litigants. There arguments may be relevant to what the
law should be in Plaintiffs eves. Unfortunately for
Plaintiffs, the legislature disagreed and established the
procedure in ORS 10.215 and 10.275 and declined to allow
access for those not directly involved in the process as
litigants. The leglislature’s decision in that regard is not
constitutionally violative. Defendants are entitled to
Summary Judgment dismissing Plaintiffs claims.
/Charles E. Luukinen, Circuit Judge/”
“October 8, 2003
Dear Counsel: I have received and reviewed Plaintiffs
Motion and Memorandum for Reconsideration on
Summary Judgment, Defendant's Objection thereto and
Plaintiffs’ Reply to Defendant’s Objection. I find that
nothing raised by the Plaintiffs ***[therein] ***raises
issues that were not presented in the original proceedings
and decided adversely to the Plaintiffs. I have therefore
signed the form of Order Allowing Defendant’s Motion for
Summary Judgement as well as the Judgement submitted
by Mr. Castle and have delivered the same to the Marion
County Court for filing.
/signed by Charles E. Luukinen, Circuit Judge/.”®
? The entire letter opinion is of record on appeal,
Petitioners’ Opening Brief, ER 46-49.
* The entire letter opinion is of record on appeal,
Petitioners’ Opening Brief, ER 50.
APP - 31
_Excerpts from the Final Judgment and Sentencing Order
(of death] of Petitioner Langley, entered in the public
_ record of the companion death penalty case of State v.
_ Langley (Gray III), Marion Co..Cir. Ct. No. 88C21624,
| filed Feb. 03, 2006, entered Feb. 4, 2006, dated Feb. 3,
| 2006
Entered Feb. 04, 2006
IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF MARION
No. 88C21624
FINAL JUDGMENT AND SENTENCING ORDER
THE STATE OF OREGON, Plaintiff
VS.
Langley. Robert Paul Jr., Defendant
THIS MATTER came before the Court on an Indictment
charging the Defendant with the crime of AGGRAVATED
MURDER ***
The Defendant was tried by a Jury and, on November 30,
1989, unanimously found guilty of the crime of
AGGRAVATED MURDER. On December 8, 1989, the
Jury unanimously answered the four sentencing
questions in the affirmative ,and the Court imposed a
sentence of death. On November 18, 1993, the Oregon
Supreme Court affirmed the Defendant’s conviction for
AGGRAVATED MURDER, set aside the sentence of
death, and remanded the case to this Court solely for new
sentencing proceeding. On November 10, 1994, the Jury
unanimously answered the four sentencing questions in
the affirmative. On February 2, 2001, the Oregon
Supreme Court set aside the sentence of death and
APP - 32
remanded the case to this Court for a third sentencing
proceeding. On November 9, 2005, the Jury unanimously
answered the four sentencing questions in the affirmative.
THEREFORE, IT IS ADJUDGED that the Defendant,
Robert Paul Langley, Jr., is convicted of the crime of
AGGRAVATED MURDER ***{.|
es 2k
IT IS FURTHER ORDERED that the Defendant Robert
Paul Langley, Jr. is sentenced to death as provided in
ORS 163.150(1)(f).
IT IS FINALLY ORDERED that the Marion County
Sheriff, or his designee, shall immediately deliver the
defendant to the Superintendent of the Oregon State
Penitentiary.
Dated this 2 day of February, 2006.
/signed Joseph V. Ochoa, Circuit Court Judge/
Miscellaneous%statutory and court rule provisions not
| reproduced elsewhere.
ORCP Rule 57A. Challenging compliance with selection
procedures. (A)(1). Motion. Within 7 days after the
moving party discovered or by the exercise of diligence
could have discovered the grounds therefor, and in any
event before the jury is sworn to try the case, a party may
move to stay the proceedings or for other appropriate
relief, on the ground of substantial! failure to comply with
the applicable provisions of ORS chapter 10 in selecting |
the jury. (A)\(2). Stay of proceedings. Upon motion filed |
under subsection (1) of this section containing a sworn
statement of facts which, if true, would constitute a
APP - 33
substantial failure to comply with the applicable
provisions of ORS chapter 10 in selecting the jury, the
moving party is entitled to present in support of the
motion: the testimony of the clerk of court administrator,
any relevant records and papers not public or otherwise
available used by the clerk or court administrator, and
any other relevant evidence...(A)(3). Exclusive means of
challenge. The procedures prescribed by this section are
the exclusive means by which a party in a civil case may
challenge a jury on the ground that the jury was not
selected in conformity with the applicable provisions of
ORS chapter 10.
Excerpts from the ABA Guidelines for the Appointment
and Performance of Defense Counsel in Death Penalty
Cases (Ed. 2003), published at 31 Hofstra Law Review
913 (2003)
Guideline 10.7 Investigation
Counsel at every stage have an obligation to conduct
thorough and independent investigations relating to the
issues of both guilt and penalty.***B. *** 2. Counsel at
every stage have an obligation to satisfy themselves
independently that the official record of the proceedings is
complete and to supplement it as appropriate. ***
Commentary: At every stage of the proceedings, counsel
has a duty to investigate the case thoroughly. ***
Miscellaneous Concerns: ***Additional investigation may
be required to provide evidentiary support for other legal
issues in the «ase, such as challenging racial
discrimination ... in the composition of juries. Whether
withir. the criminal case or outside it, counsel has a duty
to pursue appropriate remedies if the investigation
reveais that such conditions exist.
APP - 34
Guideline 10.8 —- The Duty To Assert Legal Claims.
A. Counsel at every stage of the case, exercising
professional judgment in accordance with these
Guidelines, should: 1. Consider all legal claims potentially
available: and 2. Thoroughly investigate the basis for each
potential claim before reaching a conclusion as to whether
it should be asserted: and 3. Evaluate each potential
claim in light of: (a) the unique characteristics of death
penalty law and practice: and (b) the near certainty that
ajl available avenues of post-conviction relief will be
pursued in the event of conviction and imposition of a
death sentence; and (c) the importance of protecting the
client’s rights against later contentions by the government
that the claim has been waived, defaulted, not exhausted,
or otherwise forfeited; and (d) an other professionally
appropriate costs and benefits to the assertions of the
claim. B. Counsel who decide to assert a particular legal
claim should: 1. Present the claim as forcefully as
possible, tailoring the presentation to the particular facts
and circumstances in the client’s case and the applicable
law in the particular jurisdiction; and 2. ensure that a full
record is made of all legal proceedings in connection with
the claim. ***
Guideline10.10.2 (Voir Dire and J ury Selection)
A. Counsel should consider, along with potential legal
challenges to the procedures for selecting the jury that
would be available in any criminal case (particularly
those relating to bias on the basis of race or gender),
whether an procedures have been instituted for selection
of juries in <apital cases that present particular legal
bases for challenge. Such challenges may include
challenges to the selection of the grand jury and grand
jury forepersons as well as to the selection of the petit
jury venire. ***
APP - 35
Commentary. Jury selection is important and complex in
any criminal case. In capital cases, it is all the more
critical. Counsel should devote substantial time to
‘determining the makeup of the venire ***{.] *** Bearing
in mind that the history of capital punishment in this
country is intimately bound up with its history of race
relations, counsel should determine whether
discrimination is involved in the jury selection process.
Counsel should investigate whether minorities or women
are underrepresented on the jury lists from which grand
and petit juries are drawn, or if race or gender played a
role in the selection of grand jury forepersons. ***
Excerpts from Briefing: Plaintiffs’ Complaint filed Feb
20034
“425. ***Defendant State of Oregon *** has chosen to-
seek the death penalty [in State v. Langley, (Gray IID)] a
third time. Langley is statutorily and constitutionally
precluded from waiving a jury trial, pursuant to Or.
Const. Art. 1 §11 and ORS 163.150. Langley sought pre-
trial access to certain Marion County Circuit Court jury
records, through a variety of means, and on a variety of
statutory and constitutional bases, and all of his requests
were denied. {fn 4 The facts reflecting Mr. Langlev’s
efforts are contained in his Petition for Writ of Alternate
Mandamus, Memorandum of Law in Support, and
Excerpt of Records, see State v. Langley, [SC] S49849,
filed October 20, 1002, petition denied Nov. 19, 2002.).
This action is not-a substitute for an appeal, writ of
mandamus, or a new trial in Plaintiffs criminal case. It is
not a collateral attack on a prior judgment. The Court in
* A copy of the full Complaint was included in Plaintiffs’
Excerpt of Record attached to Plaintiffs’ Opening Brief
before the Court of Appeals.
APP - 36
Plaintiffs criminal case did not have jurisdiction over, and
thus did not rule upon, Plaintiffs Public Records Request.
KK OK
“426. On Dec. 18, 2002 Langley filed a Notice of Intent to
Pursue and Exhaust Remedies {under ORS 192}, in his
pending criminal case. (Exh. B69-B71). *** In a letter
dated February 14, 2003. Defendants OSCA and OJD
denied Langley’s second public record request, and
intimated that any future like requests for such records
would be “futile.” (Exh B110). In a letter dated February
18, 2003, the Attorney General denied Langley’s petition
regarding this public records request (Exh B111-B112).
The documents referred to in this paragraph are attached
as Exhibits B and incorporated hereto by reference.”
(pages 15-20 of Complaint, pages 15-20 ER Court of
Appeals).
ARK
“*30. Plaintiff JSRC has a right to access, review, and
- analyze State Circuit Court jury source, master and term
lists, and information therein, as a matter of public night,
pursuant to ***the 1st and 14% Amendments to the U.S.
Constitution. The records and lists are not sealed, and
any governmental or private interest(s) in confidentiality
are (i) outweighed by the public interest in disclosure and
(ii) sufficiently safeguarded by other pre-existing laws [fn
6, citing to ORS 1.006, 1.010, 1.025, 10.205, 192.430,
ORCP 17, ORCP 36(C) and ORCP 48(B)(1)]. Prohibiting
public access to jury records violates state and federal
constitutional! provisions.” (Page 20-21)
“431. Plaintiff Langley on behalf of himself and
prospective Marion County jurors, has a right to access,
review and analyze State Circuit Court jury source.
master and term lists, and information contained therein,
as a matter of public right, under ORS chapter 192. The
jury lists are not sealed, and any governmental or private
interest(s) in confidentiality are (i) outweighed by the
APP - 37
public interest in disclosure and (ii) sufficiently
safeguarded by other pre-existing laws.” (page 21)
“{32. Plaintiffs JSRC and Shannon are (i) not facing a
jury trial and (ii) not eligible to file a challenge under ORS
136.005 or ORCP 57A.
“33. Plaintiff Langley does not possess any facts to
include in an affidavit required under ORS 136.005.
***The facts contained in the State Court jury records
may provide a factual basis for Langley challenging his
jury venire on behalf of himself or prospective Marion
County jurors. The State Court jury records are essential
to meeting the “needs” and vindicating the “lega! rights”
of Langley and prospective Marion County jurors, as those
terms are used in ORS 192.001(2). The State Court jury
records are not available from any other custodians except
Defendants.” (page 21-22)
“41. No Court has ordered the State Court jury lists
sealed.” (page 25).
“448. One or more of the following laws “specifically
provide” for the disclosure of State Circuit Court jury
records to Plaintiffs and others similarly situated, within
the meaning of ORS 10.215(1): *** 1s: Amendment *** 6%
Amendment *** 9% Amendment *** and/or the 14%
Amendment to the U.S. Constitution. 149. ORS 10.215
conflicts with [the] *** 1%* Amendment *** 6%
Amendment *** 9% Amendment *** and/or the 14%
Amendment to the U.S. Constitution.” (pages 27-28).
“52. Plaintiffs are entitled to their costs, disbursements
and reasonable attorney fees pursuant to ORS 192.490(3)
and/or ORS 28.116. Plaintiffs bring this matter to
vindicate and protect their rights, and the rights of all
APP - 38
members of the public including litigants, researchers,
and prospective jurors.” (page 29).
“453. RELIEF SOUGHT. Plaintiff JURY SERVICE
RESOURCE CENTER seeks the following relief pursuant
to ORS 192.450(2) and ORS 28.100: I. AN ORDER
ENJOINING DEFENDANTS FROM: *** (b) withholding
State Court jury records used by Lincoln County Circuit
Court from the JSRC and requiring Defendants to
produce [the lists to JSRC]; *** AN ORDER DECLARING
*** (c) that one or any of the following laws are laws that
“specifically provide” for the disclosure of State Court jury
lists to him within the meaning of ORS 10.215: *** ORS
192.430 *** the 1st Amendment to the U.S. Constitution,
the 6** Amendment to the U.S. Constitution, the 9%
Amendment to the U.S. Constitution, and/or the 14%
Amendment to the U.S. Constitution|[.]” the 1st, 9% and/or
14th Amendments; *** (f) that JSRC has a right under
*** the 1st Amendment *** the 6 Amendment and/or the
14° Amendment to the U.S. Constitution to access State
Court jury records. II FOR A JUDGMENT awarding
Plaintiff JSRC its costs, disbursements, and a reasonable
attorneys’ fees incurred in this proceeding, pursuant to
ORS 28.111; and IV. For such other relief as the Court
deems equitable and just.” (Page 31-32 of Complaint;
page 31-32 of ER, Court of Appeals)
“Plaintiff SHANNON seeks the following relief pursuant
to ORS 28: V: AN ORDER DECLARING (a) that one or
any of the following laws are laws that “specifically
provide” for the disclosure of State Court jury lists to him
within the meaning of ORS 10.215: ***the 15, 96 and/or
14th Amendments; *** (d) that Shannon and similarly
situated persons have a right under... the 1*, 9%
Amendment and/or the 14 Amendments to the U.S.
Constitution to access State Court jury records. VI. FOR
A JUDGMENT (a) awarding Plaintiff SHANNON his
costs, disbursements, and a reasonable attorneys’ fees
APP - 39
incurred in this proceeding, pursuant to ORS 28.111; and
VII. For such other relief as the Court deems equitable
and just.” (Page 32 of Complaint; page 32 of ER, Court of
Appeals)
“Plaintiff LANGLEY seeks the following relief pursuant to
ORS 192.450(2):
Vil. AN ORDER ENJOINING DEFENDANTS FROM
(a) proceeding with any criminal trial proceeding against
Langley until such time as the issue of Defendants’
withholding of jury records is fully and finally resolved by
a final order of court; *** IX AN ORDER DECLARING
*** (c) that one or any of the following laws are laws that
“specifically provide” for the disclosure of Marion County
Circuit Court jury lists to Plaintiff and other others,
within the meaning of ORS 10.215(1): ***ORS 191.001,
ORS 192.430 *** the 1%* Amendment to the U.S.
Constitution, the 6 Amendment to the U.S. Constitution,
the 9tt Amendment to the U.S. Constitution, and/or the
14%» Amendment to the U.S. Constitution[.]” (Page 33-35
of Complaint; page 33-35 of ER, Court of Appeais)
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Excerpts from Briefing at the trial court level: Excerpt
from Petitioner Langley’s Notice of Intent to Pursue and
Exhaust Remedies as to Jury Pool Records, filed in his
death penalty case, State v. Langley (Gray III), Marion
Co. Case No. 88C21624, Notice dated Dec. 18, 2002, and
made of record in his civil action on Feb. 25, 2003.5
* Langley referenced this criminal case Notice in the civil
Complaint at paragraph 28 attaching a copy at Exh B69-
B71, and a copy of the Notice was again provided as an
Attachment to Plaintiffs’ opening Appellate Brief, Court of
Appeals, at ER 37-38).
APP - 40
“Defendant, through counsel, notifies this Court of his
intention to fully pursue and exhaust his administrative
and judicial remedies in seeking access to jury lists and
other jury records. ,*** Defendant specifically advises the
Court that upon filing a declaratory judgment action
relative to the jury list and records that he will move this
Court for a stay of the proceedings during the pendency of
the civil action. Defendant further advises the Court that
a declaratory judgment action may take, in the estimate
of the Oregon Supreme Court, a period of up to two years.
Defendant notes that the Oregon Supreme Court has
contemplated [a defendant’s] use of public records laws in
relation to jury lists and records [citing to oral argument
in capital mandamus State v. Staudinger, SC S 47781,
side two of tape of proceedings, March 2, 2001, case
decision reported at 31 P.3d 426, 332 Or. 477 (2001)}.
Defendant relies upon all of the rights underlying his
efforts to obtain access to the jury lists and records under
the Oregon and United States Constitutions including his
rights to open justice, public trials, impartial juries, due
process of law and equal protection of the laws. He further
relies upon his rights to present and prepare a defense
under the Oregon and United States constitutions and to
make a record subject to review in higher courts. Dated
this 18 day of December 2002
/signed by Karen A. Steele, Attorney for Langley, Jr./
Excerpts from Briefing: Excerpts from Defendants’ Brief
filed in the Court of Appeals of Oregon.
“No provision of the state or federal constitution that
plaintiffs have cited entitles anybody to obtain jury-pool
records by any means other than filing a motion
challenging a jury panel.” (page 11)
“Thus, when ORS 10.215 states that the State Court
Administration and circuit courts “may not disclose” jury-
APP - 4]
pool records “except as specifically provided by law,” it
creates an absolute prohibition against disclosure of the
records except as specifically permitted by another
statute. See ORS 174.100(4). ORS 10.275 confirms the
legislature’s intent that jury-pool records not generally be
subject to publication{.]” (page 14)
“ORS 10.275 is the only statute that specifically provides
for the disclosure of jury-pool records and only litigants
who file proper jury-panel challenges may take advantage
of the procedure that the statute sets forth. No other
person is entitled to obtain the records under ORS 10.275
and no other statute creates
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