# Petition for Writ of Certiorari — Jury Service Center Center v. Oregon (No. 06-229) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1327%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2006 ## Text ) 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. { iV 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 Plaintiffs are concerned as to what more this on S.B. 936, Relating to implementation of victims’ rights initiative, Before the House Judiciary Comm., Subcommittee on Criminal Law, 1997 Leg. 69th Sess. Apr. 8, 1997, Tape 81A at 155, and portions of it submitted by Ms. Helen Smith for Mr. Frink on March 12, 1997 as Exhibit B to the Senate Judiciary Committee on Crime & Corrections) (copy of Mr. Clifford’s study, as received by Rose Jade from Mr. Frink, on file with The Jury Service Resource Center); Oregon Criminal Defense Lawyers Association's OREGON POPULATION/JURY POOL/ARREST/CONVICTION COMPARISONS (1997), submitted as Exhibit D by Jim Arneson, Hearings on S.B. 936. Relating to implementation of victims’ rights initiative, Before the Senate Comm. on Crime & Corrections, 1997 Leg. 69th Sess., Mar. 21, 1997. 55 The Lincoln County bench voiced surprise that persons over 70 had been systematically culled out bv the jurv clerk, because they had been seeing — what they believed APP - 98 Court could require Plaintiffs to demonstrate, in order to prove that public access plays a “significant role” in the compilation of jury lists. CONCLUSION For the foregoing reasons. Plaintiffs seek reconsideration and ciarification of the Court's opinion. DATED: May 6, 2006 Respectfully submitted /signed Rose Jade, OSB 95310/ to be — persons over 70 years of age on their juries. See Matt Sabo, People over 70 left of out jury pool. OREGONIAN, Apr. 27, 2002, at page Al. APP - 99 Excerpts from Briefing: Excerpts from Attachments to | Plaintiffs’ Petition for Reconsideration (before the Oregon | Supreme Court) filed Mav 2006 _ ATTACHMENT PAGE 9: IN THE SUPREME COURT OF THE STATE OF OREGON -STATE OF OREGON Plaintiff-Adverse Party, Vv. Tracy Lynn Krueger Defendant-Relator. Multnomah County Circuit Court No. 040130314 SC $53148 ORDER HOLDING PETITION FOR ALTERNATIVE WRIT IN ABEYANCE AND GRANTIN G MOTION TO WAIVE THE FILINC FEE Upon consideration by the Court. The Supreme Court has considered the petition for alternative writ of mandamus in this case and decided that it should withhold final action on the petition until the court has decided Jury Service Resource Center v. Carson, 399 Or 405 (2005) IT IS SO ORDERED that the petition for review shall remain pending in the Supreme Court until further order of the court. *** Dated this 14” day of February 2006. /signed by W. Michael Gillette, Presiding Justice/ APP - 100 ATTACHMENT PAGE 10: IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON Plaintiff-Adverse Party, Vv. STUWART EDWARD LUEB. Defendant-Relator, And LYDIA MARIE WAY, Defendant. * Multnomah County Circuit Court No. 041035541 SC $53165 AMENDED ORDER HOLDING PETITION FOR ALTERNATIVE WRIT IN ABEYANCE AND GRANTING MOTION TO WAIVE THE FILING FEE Upon consideration by the Court. The Supreme Court has considered the petition for alternative writ of mandamus in this case and decided that it should withhold final action on the petition until the court has decided Jury Service Resource Center v. Carson, 399 Or 405 (2005) IT IS SO ORDERED that the petition for review shal! remain pending in the Supreme Court until further order of the court. *** Dated this 21% day of February 2006. Nunc pro tunc February 14, 2006. ‘signed by W. Michael Gillette, Presiding Justice/ APP - 101 | Text of Federal Constitutional and Statutory Provisions. U.S. Const., amend. I provides in relevant part: “Congress snall make no iaw...abridging the freedom of speech or of the press|[.]” U.S. Const., amend. VI provides in relevant part: “In all criminal prosecutions the accused shall enjoy the right to *** trial by an impartial jury of the state and district wherein the crime shall have been committed.” U.S. Const., amend. IX provides in relevant part: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” U.S. Const., amend. XIV provides in relevant part: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” 18 U.S.C. §243 provides: “Exclusion of jurors on account of race or color. No citizen possessing all other qualifications which are or may be prescribed by law shal! be disqualified for service as grand or petit juror in | any court of the United States. or of any State on account of race, color, or previous condition of ! servitude; and whoever, being an officer or other person charged with any duty in the selection or summoning of jurors, excludes or fails to summon any citizen for such cause, shall be fined not more than $5,000.” | | | | APP - 102 | Text of key sections of Oregon Revised Statutes and Oregon Rules of Civil Procedure. ORS 10.215 states in relevant part: (1) *** Except as specifically provided by law. the State Court Administrator and circuit courts may not disclose source lists obtained from private or pubiic entities, and jury lists containing names selected from a source list, to any other person or public entity. ORS 10.275 states in relevant part: (1) A person challenging a jury panel under ORS 136.005 or ORCP 57A who seeks jury records that are confidential under ORS 10.215 must include a request for access to the confidential records in the motion challenging the jury panel. The motion and supporting affidavit must be served on the trial court administrator and the State Court Administrator. The request must: (a) Specify the purpose for which the jury records are sought; and (b) Identifv with particularity the relevant jury records sought to be released including the type and time period of the records. (2) The court may order release of the jury records if the court finds that: (a) The jury records sought are likely to produce evidence relevant to the motion; and (b) Production of the jury records is not unduly burdensome.*** (5) The procedure established by this section is the exclusive means for compelling production of confidential jury records as evidence relevant fo a challenge to a jury panel under ORS 136.005 or ORCP 57A. ORS 136.005 provides: Challenge to jury panel. (1) The district attorney or the defendant in a criminal action may challenge the jury panel on the ground that there has been a material departure from the requirements of the law governing selection of jurors by filing a motion with the court supported by an affidavit APP - 103 alleging facts that, if true, constitute a material departure from the requirements of the law governing the selection of jurors. The party making the motion shall serve the motion and supporting affidavit on the other party, the trial court administrator and the State Court Administrator. (2) A challenge to the panel shall be made before the voir dire examination of the jury. (3) If the court determines that there has been a material departure from the requirements of the law governing selection of jurors, the court shall: (a) Stay the proceedings pending the selection of a jury panel in conformity with the applicable provisions of law; and(b) Grant such other relief as may be appropriate. (4) The procedures prescribed by this section are the exclusive means by which a district attorney or defendant may challenge a jury panel. 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 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 availabie 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 APP - 104 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1327%3A1. Public record. Not legal advice.