Cerrone v. People

Justice SCOTT

specially concurring:

I agree with the majority that “[t]he evidence supports the finding of a prima facie case of discrimination on the basis of economic status.” Maj. op. at 54. I also agree that “[b]ecause the state has not articulated a non-diseriminatory economically neutral explanation for its exclusion of hourly wage earners from the statewide grand jury,” we must find that “[t]he state has purposefully discriminated on the basis of economic status and has violated section 13-71-103, 6A C.R.S. (1987).” Maj. op. at 56. Furthermore, I agree that the convictions of Cerrone and Goetz should not be set aside and thus I too conclude the court of appeals judgment upholding the convictions should be affirmed. I write separately, however, to make clear my view that under the plain language of section 13-71-103 a showing of animus or purposeful discrimination is not necessary to vindicate the rights of wrongfully excused jurors or the community that prohibits such discrimination.

Moreover, even assuming the Batson standard adopted by the majority should be applied in these cases, as I set forth in my dissent in People v. Cerrone, 854 P.2d 178 (Colo.1993) (Scott, J., dissenting) (Cerrone II), I believe the state cannot meet “its burden of offering a[n] [economically] neutral explanation for the composition of the statewide grand jury by presenting ‘circumstantial evidence’ which included no legally competent evidence from the selecting official.” Id. at 194. Thus, I would hold that the state’s failure to present testimony or other evidence from the selecting official, the chief judge, is fatal to the state’s ability to overcome the prima facie case set forth by petitioners under Batson.

Finally, the loss of public confidence in both our judicial process and the integrity of the criminal justice system is as prevalent today as at any time in our past. The loss of public confidence inflicted by discrimination in juror selection and final jury composition is the very evil section 13-71-103 was intended to address. By reading an animus requirement into our statutes, I believe the majority jeopardizes a clear policy goal of the General Assembly to assure participatory democracy and to preserve public confidence in our jury system.

I

In these two cases we are called upon to determine whether potential jurors have been excluded from jury service “on account of ... economic status.” § 13-71-103. In resolving that issue, the majority determines that “[t]he statute neither defines the term ‘economic status’ nor provides guidance on the standard to be used.” Maj. op. at 51. Thus, to determine the intent of the Colorado General Assembly, the majority resorts to an analysis of federal case law to answer the question of “whether a violation of section 13-71-103 should be evaluated under criteria applicable to a Sixth Amendment challenge or a Batson equal protection challenge.” Maj. op. at 53. After ignoring principles of statutory construction we normally look to in order to interpret our laws,1 the majority *58concludes that “[b]ecause the statute requires a defendant to establish purposeful discrimination, a Batson analysis is the appropriate standard for evaluating violations of section 13-71-103.” Maj. op. at 53.

I disagree with the majority’s inherent premise that we are required to choose between a Sixth Amendment fair cross section analysis and a Batson equal protection analysis, implements of federal constitutional law, to construe a Colorado Statute. I submit instead that section 13-71-103 is clear and unambiguous in its terms, and should be enforced by this court as crafted by our General Assembly. Such deference to federal case law, I fear, subjects our legislative enactments to federal policy nuances and future ease law we may later find unfortunate.

Section 13-71-103 sets forth no affirmative requirement that a person’s exclusion from a jury for one of the enumerated improper reasons be “purposeful” or endured by animus against hourly wage earners. Had the General Assembly intended to include an animus requirement, it could and would have done so. As written, the statute forbids excluding potential jurors from the venire on account of their economic status, regardless of the ultimate purpose or objective of the selecting official.

In selecting potential jurors for the forty-two person venire, the state mistakenly associated hourly wage earning with hardship. The result is that although the state intended to exclude potential jurors on account of hardship, in reality potential jurors were excluded on account of their economic status. Despite the fact that the state may have had benevolent or even benign intentions when it acted to exclude wage earners, its actions did violate the clear proscriptions of section 13-71-103. To hold otherwise, would be to permit the state to exclude all potential jurors of a cognizable group from jury service so long as some state official honestly but wrongly believed that all members of that group were not competent to serve on the jury.

II

Based on the record before us, the persons harmed were the potential jurors who were improperly excluded from participation in government because of their economic status. Our General Assembly has adopted as the policy of our state a statutory scheme which prohibits discrimination on the basis of economic status. § 13-71-103. Selection of jurors by means which exclude citizens based on economic status not only violates our statutes, but also an individual excluded juror’s right to participate in our jury system and the community’s interest in preserving the integrity of our criminal justice system.

We have previously held that the right to an impartial jury has been “constitutionalized not only to protect the innocent from an unjust conviction but, of equal importance, to preserve the integrity of society itself by keeping sound and wholesome the process by which it visits its condemnation on a wrongdoer.” People v. Germany, 674 P.2d 345, 349 (Colo.1983). In fact, in 1991 the United States Supreme Court held that a criminal defendant has standing to raise the third-party equal protection claims of wrongfully excluded jurors. Powers v. Ohio, 499 U.S. 400, 415, 111 S.Ct. 1364, 1373, 113 L.Ed.2d 411 (1991); see also Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992) (citing Batson v. Kentucky, 476 U.S. 79, 87, 106 S.Ct. 1712, 1718, 90 L.Ed.2d 69 (1986)) (the harm of denying a person jury service on account of discriminatory criteria “extends beyond that inflicted on the defendant and the excluded juror to touch the entire community”).

“The need for public confidence in our judicial process and the integrity of the criminal justice system is ‘essential for preserving community peace.’ ” Cerrone II, 854 P.2d at 196 (Scott, J., dissenting) (quoting McCollum, 505 U.S. at 49, 112 S.Ct. at 2354). Current debate and recent Supreme Court decisions indicate that citizens still place great importance on jury composition. See, e.g., McCollum, 505 U.S. at 61, 112 S.Ct. at 2360 (Thomas, J., concurring) (“The public, in general, continues to believe that the makeup of juries can matter.”). As I stated in my *59dissent to Cerrone II, “[i]t is thus of paramount importance that the community believes we guarantee evenhanded entry into our criminal justice system by way of the jury panel, whether grand or petit, and not merely through the jailhouse door.” Cerrone II, 854 P.2d at 196 (Scott, J., dissenting). Otherwise, if we were to allow the state to make unilateral determinations of hardship on the basis of discriminatory stereotypes, we would foreclose full participation in government by all our citizens and such a result undermines public confidence in our judicial process and gives impetus to questions about the fairness of our judicial system.

III

Finally, even applying the Batson standards outlined by the majority, I believe the state failed to meet its burden. As set forth by the majority, after a defendant makes out a prima facie showing that the state deliberately excluded possible jurors because of economic status, the burden then shifts to the state to come forward with “a neutral explanation for its behavior.” Maj. op. at 53 (citing Batson, 476 U.S. at 97, 106 S.Ct. at 1723). The state’s explanation must be reasonable under the circumstances of the particular ease.

In seeking to rebut a prima facie showing, the state may not merely deny that it had a discriminatory motive, nor may it simply assert that, in good faith, it was acting to benefit those against whom its actions discriminate. Batson, 476 U.S. at 98, 106 S.Ct. at 1723-24 (citing Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1971)). The state “must give a ‘clear and reasonably specific’ explanation of [its] legitimate reasons for exercising the challenges.” Id. at 98 n. 20, 106 S.Ct. at 1724 n. 20 (citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 258, 101 S.Ct. 1089, 1096, 67 L.Ed.2d 207 (1981)). As the Supreme Court observed, if mere “general assertions were accepted as rebutting a defendant’s pri-ma facie case, the Equal Protection Clause would be but a vain and illusory requirement.” Id. at 98, 106 S.Ct. at 1724 (quoting Norris v. Alabama, 294 U.S. 587, 598, 55 S.Ct. 579, 584, 79 L.Ed. 1074 (1935)). The majority concluded that “in order to rebut the defendants’ prima facie case of discrimination based on economic status, the state was required to articulate an economically neutral explanation for its exclusion of hourly wage earners.” Maj. op. at 55. The majority then “assume[s]” that the selecting official, Chief Judge Flowers, utilized the same criteria expressed by staff attorneys in the attorney general’s office. Maj. op. at 55 n. 13. Such an assumption, I believe, falls far short of the rebuttal anticipated by Batson.

IV

In sum, excluding jurors on account of economic status violates the rights of the prospective jurors and erodes public confidence in the integrity of the criminal justice system.. Moreover, because section 13-71-103 is intended to protect the interests of potential jurors and the greater community, discrimination without animus is sufficient to warrant corrective action by the state. Accordingly, I agree that the state improperly excluded potential members of a grand jury on the basis of economic status, causing harm to excluded jurors and the general community. However, because I conclude that proof of discrimination based on economic status— without proof of discriminatory purpose — is all that is necessary to vindicate the interests of potential jurors or the community at large, and because I believe the state failed, under Batson, to submit competent evidence of the intent of the selecting official in its attempt to rebut the prima facie case of economic status discrimination, I join the majority opinion except as to parts III and IV B.

. The majority failed to adhere to the plain and unambiguous language of the statute as required by Colorado case law. See, e.g., PDM Molding, Inc. v. Stanberg, 898 P.2d 542, 544-45 (Colo.1995); Shapiro and Meinhold v. Zartman, 823 P.2d 120, 123-24 (Colo.1992). It is clearly established that where the language of a statute is plain and the meaning is clear, there is no need *58to resort to interpretive rules of statutory construction. See id.