Gause v. United States

SCHWELB, Senior Judge, with whom WASHINGTON, Chief Judge, and KRAMER and THOMPSON, Associate Judges, join, dissenting:

The judges who join in this dissenting opinion adhere to1 or generally agree with2 the opinion of the division majority in Gause v. United States, 959 A.2d 671 (D.C.2008) (Gause I).3 We therefore re*1259spectfully dissent from the decision of the en banc court.

I.

The issue which divides the court is whether Gause and Wilkey are required to make a very modest threshold showing, i.e., reasonable belief or suspicion that a violation of the DCJSA may have occurred, before being granted discovery of, and access to, confidential records and documents to which the general public has no access, and before being authorized to take the depositions of court officials. All of the members of the court appear to agree that the proper resolution of that issue turns on the similarities and dissimilarities between the FJSSA and the DCJSA. The FJSSA applied to the Superior Court, as well as to the United States District Courts, until the enactment in 1986 of the DCJSA, which now governs local prosecutions.

The principal and, in our view, disposi-tive difference between the two statutes is that the FJSSA contains two provisions which explicitly accord a criminal defendant or other litigant who is preparing to file a motion to challenge the composition of the jury pool the right to discover, and to present in support of the motion, otherwise confidential or non-public information relating to jury selection. Specifically, the provision of the FJSSA dealing with discovery states that “[t]he parties in a case shall be allowed to inspect, reproduce and copy such records or papers at all reasonable times during the preparation and pen-dency of such a motion.” 28 U.S.C. § 1867(f). The FJSSA also provides that where such a motion has been filed (together with a supporting sworn statement),

the moving party shall be entitled to present in support of such motion the testimony of the jury commission[er] or clerk, if available, any relevant records and papers not public or otherwise available used by the jury commissioner or clerk, and any other relevant evidence.

28 U.S.C. § 1867(d). In other words, § 1867(f) provides without qualification for the inspection and copying, by a party seeking to challenge selection procedures relating to the jury pool, of relevant but otherwise confidential records and documents, and § 1867(d) accords that party the right to present, in support of his or her challenge, “any relevant records and papers not public or otherwise available.” Thus, in prosecutions in the United States District Courts, the “shall be allowed to inspect” language in § 1867(f) and the “shall be entitled to present” language in § 1867(d) establish the unqualified right of parties proposing to make such a jury selection challenge, but not of other members of the public, to have access to and use of confidential jury records not otherwise subject to public scrutiny.

In Test v. United States, 420 U.S. 28, 30, 95 S.Ct. 749, 42 L.Ed.2d 786 (1975) (per curiam), the Supreme Court held unequivocally that such an unqualified right exists under the FJSSA. But notwithstanding similarities between other parts of the FJSSA and the DCJSA,4 no provision comparable either to § 1867(f) or to the rele*1260vant portion of § 1867(d) was included in the DCJSA which, as we have noted, supplanted the earlier-enacted FJSSA as the statute governing jury selection in the Superior Court.

As the division majority explained in Gause I, 959 A.2d at 682-83, citing ample authority, a change in the language of a predecessor statute creates a strong presumption that the legislature intended a change in result. “If words used in a prior statute to express a certain meaning are omitted, it will be presumed that a change of meaning was intended.” Id. at 682 (quoting Chertkof v. United States, 676 F.2d 984, 988 (4th Cir.1982)) (quoting 2A C. Dallas Sands, Sutherland Statutory Construction § 51.02 (1973)); United States v. Brown, 422 A.2d 1281, 1284 (D.C.1980). “Where the words of a later statute differ from those of a previous one on the same or [a] related subject, the Congress must have intended them to have a different meaning.” Muscogee (Creek) Nation v. Hodel, 271 U.S.App.D.C. 212, 217, 851 F.2d 1439, 1444 (1988), cert. denied, 488 U.S. 1010, 109 S.Ct. 795, 102 L.Ed.2d 786 (1989) (citing Klein v. Republic Steel Corp., 435 F.2d 762, 765-66 (3d Cir.1970)); see also United States v. Wilson, 351 U.S.App.D.C. 261, 274, 290 F.3d 347, 360, cert. denied, 537 U.S. 1028, 123 S.Ct. 581, 154 L.Ed.2d 442 (2002) (quoting Muscogee Creek Nation ).5

In this case, the provisions that were omitted from the DCJSA contain the very language of the FJSSA — “shall be allowed to inspect” in 28 U.S.C. § 1867(f) and “shall be entitled to present” § 1867(d)— that unambiguously grants to criminal defendants and other litigants in the federal courts, and formerly granted to litigants in the Superior Court, the right to the relief that Gause and Wilkey seek here, namely, unconditional access in discovery, without any threshold showing, to otherwise confidential records and documents, and the use of such non-public materials in support of a motion challenging the selection of the jury pool. Thus, in Test, 420 U.S. at 30, 95 5.Ct. 749, the Supreme Court stated that an unqualified right to inspection is required, inter alia, “by the plain text of the [federal] statute.”6 The District’s statute, however, does not include this dispositive “plain text.” Thus, in the FJSSA Congress explicitly authorized discovery and disclosure of otherwise confidential information, with no prior threshold showing being required. In the DCJSA, by contrast, Congress did not.

*1261Our colleagues in the en banc majority do not really come to grips with the “change in meaning” canon of construction on which the division relied in Gause I and on which we rely here, nor do they explain why the sensible principles underlying that canon should not apply in this case. One searches the majority opinion in vain for citation of any authority rejecting this familiar aid to construction or limiting its applicability in any way that is relevant here. According to the majority, the division’s application to this record of the proposition that changes in statutory language indicate a change in the meaning of the statute “is too great a leap.” The opinion does not tell us, however, why the division’s supposed “leap” — actually, the application of a long-standing and uncontroversial canon of statutory construction, consistent with the dictates of common sense — was less persuasive than the reasoning of the various courts in any of the numerous cases in which that, canon has been routinely applied.7

We are all entitled to our own opinions, but not to our own facts. The critical fact here is that the language in two separate subsections, which explicitly created the unqualified right under the FJSSA to access to non-public records, and which applied to the District prior to the enactment of the DCJSA, was omitted from the statute which now governs jury selection procedures in the Superior Court. These omissions must have been either intentional or accidental. If the changes were made intentionally, then it cannot be plausibly argued, insofar as the unqualified right of inspection of non-public records is concerned, that the two statutes — one containing dispositive language and one from which that language was deliberately omitted — were intended to mean the same thing and to achieve the same result. Congress cannot be supposed to have believed that it could ensure the reaffirmance of a desired outcome by deliberately leaving out the very language that unambiguously required that result. To put it more directly, if you want a rule to remain the same, you do not tinker with the provisions that state that rule, and you most assuredly do not eliminate those provisions.

The majority notes that there is no pertinent legislative history and perhaps (we are not sure) implies, without expressly saying so, that the omission of the key language in the FJSSA was inadvertent and that Congress must have made a mistake. But surely this court may not simply assume that provisions which, had they been retained, would have left no doubt as to the proper disposition of the issue before us, were left out of the DCJSA by accident, and that nobody involved in drafting the DCJSA noticed the omissions before the Act became law. Legislators are human, and perfection being a rare commodity, the legislative process is not *1262perfect. Nevertheless, absent some compelling evidence to the contrary, we should take it for granted that the drafters of the DCJSA read the statute before it was enacted, and that the elimination of FJSSA provisions granting criminal defendants and other parties, during the preparation or pendency of a motion pursuant to 28 U.S.C. § 1867, unqualified access to non-public records, without having to make any threshold showing, was intentional rather than inadvertent. There is therefore only one reasonable conclusion, namely, that the failure to include in the DCJSA the dispositive “shall be allowed to inspect” language of § 1867(f) and the “shall be entitled to present” language of § 1867(d), was deliberate, and that Congress did not intend to carry over to the new statute the very rule that would have remained in effect if that language had not been left out.

II.

But, insists the en banc majority, even in the absence of the key FJSSA provisions which Congress omitted from the DCJSA, a party who has filed a motion challenging the composition of the jury pool has an unqualified right of access to non-public records on the basis of what the majority insists is the “language” — presumably, the plain language8 — of the DCJSA. The majority cites D.C.Code § ll-1914(b), which, it says, “bespeaks an intent of Congress to exclude any other predicate showing of relevance or justification for the inspection that the statute clearly contemplates.” We do not agree.

At least in our view, the notion that the result reached by the en banc majority is supported by the language of the statute, let alone a “plain reading” of that language, is altogether untenable. This is so because Congress omitted from the DCJSA the very provisions of the FJSSA that explicitly created, for parties seeking to challenge the composition of the jury pool, the unqualified right to inspection and use of otherwise non-public material to which Gause and Wilkey claim to be unconditionally entitled notwithstanding these omissions. If two consistent provisions unambiguously directing a particular result are left out of or stricken from a statute, the legislature is not “plainly” (or at all) indicating that it wishes to adhere to the prior result. On the contrary, the opposite is true.

A simple hypothetical illustrates our point. If our Constitution were amended to retain most of the provisions of the Bill of Rights, but to leave out the Second Amendment, it would surely be difficult to argue that the right to bear arms continues to receive constitutional protection under some other Amendment. The same is true here. The majority’s approach suggests that notwithstanding the presumptively purposeful omission of the “shall be allowed to inspect” language of § 1867(f) and the “shall be entitled to present” language of § 1867(d) from the later-enacted DCJSA, the spirit of the omitted provisions is so unquenchable that it not only survives their elimination by Congress, but that it also remains in effect — and remains in effect unambiguously — in a new statute in which the key provisions of § 1867(f) and § 1867(d) could so readily have been included, but from which Congress excluded them instead. A chain is only as strong as its weakest link, and we suggest that this link in the en banc majority’s chain is less than sturdy.

Section ll-1914(b) of the DCJSA, on *1263which the majority relies,9 provides that

[t]he contents of any records or lists used in connection with the selection process shall not be disclosed, except in connection with the preparation or presentation of a motion under § 11-1910, or until all individuals selected to serve as grand or petit jurors from such list have been discharged.

As the division explained in Game I, 959 A.2d at 685 n. 10,

This provision authorizes disclosure of otherwise non-public records, but it does not purport to prescribe a standard governing such disclosure, nor does it state or even suggest (hat no [threshold] showing need be made. Indeed, in our view, the very title of the provision is inconsistent with the meaning that our [dissenting] colleague seeks to attribute to it.

The disagreement between the en banc majority and the dissenters appears to turn on whether it is the “shall be allowed to inspect” language § 1867(f) and of the “shall be entitled to present” language of § 1867(d), both of which phrases were omitted from the DCJSA, or the language of D.C.Code § ll-1914(b), which is in the District’s statute, that illuminates the intent of Congress regarding whether a party must make any threshold showing in order to secure discovery of and access to otherwise confidential records and documents. On its face, § ll-1914(b) appears to have nothing at all to do with the subject of this disagreement. It provides that non-public records may be disclosed “in connection with the preparation of a motion under § 11-1910,” but it gives us no clue as to what, if any, threshold showing is required.10 Compared with §§ 1867(f) and (d), which deal with the issue explicitly and unambiguously and provide for unconditional access and use, § ll-1914(b) has to be stretched well beyond its language if it is to be viewed as negating the requirement of any threshold showing.

Perhaps it could plausibly be argued that § ll-1914(b) is ambiguous as to the requirement (or lack thereof) of a threshold showing, and that (but for the omission from the DCJSA of the language of the FJSSA), one reasonable reading of § 11-*12641914(b) would be that it means what the majority says it means. But the majority asserts that under a literal reading of § ll-1914(b), no threshold showing at all is required in order for parties to be entitled to inspect and present otherwise confidential records to which other citizens are denied access. That claim is pressed by the majority even though (1) on its face § 11-1914 does not say anything at all regarding what, if any, showing must be made; (2) other jurisdictions require a threshold showing;11 and (3) the provisions of the federal statute entitling parties to unqualified access were left out of the otherwise similar DCJSA. To recognize that Congress must have had legitimate reasons, e.g., the protection of juror privacy, for making these records and documents unavailable to the general public is to state the obvious. In the absence of an explicit overruling or abandonment by Congress of such considerations, it is unreasonable to suppose that these protections may be disregarded with no threshold showing whatever.

III.
The en banc majority further states that if the omission of this one sentence [in 28 U.S.C. §§ 1867(f) and (d) ] is thought to be so telling, so too must the legislature’s failure to include anything in the DCJSA defining (or even mentioning) this new threshold showing requirement that our dissenting colleagues would impose solely by implication.

This passage compares apples with oranges and misapprehends the division’s holding and the position of the dissenting judges. What the majority calls the “new threshold showing requirement” adopted by the division does not “impose a result” by implication at all. On the contrary, the division was required to establish a standard because the legislature did not prescribe one and, indeed, excluded from the DCJSA the language in the federal statute that resolved the issue for the United States District Courts. Rather, it is the majority that “imposes a result” by treating as inconsequential12 the critical fact that the language which required that outcome in the FJSSA has been left out of the DCJSA.

Where, as in this case, the legislature has changed or omitted language in a prior statute, the most reasonable inference from this course of events is that the meaning of the new statute is different from the meaning of the previous one. That, as we have demonstrated, is the significance of the exclusion from the DCJSA of the key language in § 1867(f) and § 1867(d). Congressional silence as to whether or not a threshold showing must be made, on the other hand, does not give rise to a comparable inference, and it raises an entirely different kind of question. A legislature’s failure to specify a particular standard is not, and cannot reasonably be construed as, a determination as to what standard applies. In other words, if Congress does not say, one way or the other, whether any threshold showing must be made, its silence does not support the conclusion that parties seeking to challenge the composition of the jury pool continue to have automatic and unqualified access to confidential jury selection rec*1265ords, unavailable to anyone else, notwithstanding the omission of provisions from a prior statute that gave them such an unqualified right, but which are no longer in effect. Rather, where, as here, Congress has not explicitly addressed the subject, but has declined to retain the dispositive language contained in the predecessor statute, the court must heed all relevant indications of Congressional intent. The “change in meaning” canon is one of those indications, and in this case, an especially persuasive one.

For the reasons previously stated, the most reasonable construction of a statute from which the “shall be allowed inspect” language of § 1867(f) and the “shall be entitled to present” language of § 1867(d) have been eliminated is that the unqualified right previously granted only to criminal defendants and other litigants now no longer exists under the DCJSA. Further, as a common law court addressing a question not previously décided in this jurisdiction, we may appropriately look to the decisions of the courts of other jurisdictions which have been confronted with similar issues. See, e.g., In re Estate of McKeever, 361 A.2d 166, 171 (D.C.1976).

In this connection, the decision of the Supreme Court of California in People v. Jackson, 13 Cal.4th 1164, 56 Cal.Rptr.2d 49, 920 P.2d 1254 (1996), cert. denied, 520 U.S. 1216, 117 S.Ct. 1705, 137 L.Ed.2d 830 (1997), merits our careful consideration. Although not mentioned by the court in Jackson, California’s Trial Jury Selection and Management Act reflects a policy substantially equivalent to that of the DCJSA. It provides that “all persons selected for jury service shall be selected at random from the population of the area served by the court[,]” and that “all qualified persons have an equal opportunity ... to be considered for jury service[.]” Cal.Civ.ProC. Code § 191. Like the DCJSA, however, the California statute contains no provision comparable to § 1867(f) and § 1867(d). In the absence of such provisions, the court held in Jackson that although the defendant need not establish a prima facie violation of. the statute in order to obtain discovery of non-public jury selection materials, a threshold “reasonable belief’ showing is required. Id. at 1268. The court reached this conclusion even though there was no prior California statute which contained language such as that in the FJSSA, so that the “change in meaning” canon on which the division relied in Gause I, and on which we rely in this dissenting opinion, did not come into play. Accordingly, the reasoning of the Supreme Court of California in Jackson applies to this case a fortiori.

The en banc majority gratuitously criticizes the “reasonable belief’ standard adopted by California’s highest court as “confusingly vague,”13 but cites no authority whatever in support of its criticism. The government, on the other hand, has invited our attention to a number of decisions from various jurisdictions in which the courts have taken an approach similar to that of the Supreme Court of California in Jackson (and of the division in Gause I). See, e.g., Rojas v. State, 288 So.2d 234, 237 (Fla.1973); State v. Avcollie, 188 Conn. 626, 453 A.2d 418, 423 (1982); cert. denied, 461 U.S. 928, 103 S.Ct. 2088, 77 L.Ed.2d 299 (1983); Pimentel v. State, 710 S.W.2d 764, 777-78 (Tex.Ct.App.1986). In our view, these decisions constitute persuasive authority for the standard adopted by the *1266division in Game I, and our en banc court should adopt that standard.

IY.

For the foregoing reasons, we respectfully dissent.14

. Judges Thompson and Schwelb.

. Chief Judge Washington and Judge Kramer.

. In order to place the discussion that follows ’ in context, the reader should be apprised that the evidence of the defendants’ guilt was overwhelming; that the fourteen jurors and alternates included seven blacks and one black Latina; that, in raising their jury selection challenge, defendants cited a report about statistically significant underrepresentation of blacks in Monday jury venires and a report attributing that result to the impact of the jury office’s practice of rescheduling to Mondays individuals who responded to jury summonses by requesting that their one-day-or-one-trial jury service be deferred; and that defendants’ jury was not selected on a Monday, but on a Tuesday. Id. at 675-77.

. Interestingly, the majority criticizes the dissent both for allegedly exaggerating the similarities between the two statutes, maj. op. at note 7 (dissent "might lead one to assume that the FJSSA and the DCJSA are mirror images of each other but for the ‘shall be allowed to inspect’ ... and the 'shall be entitled to present’ ” language) and, conversely, for a supposed failure to accord sufficient recognition and significance to the similarities between the two. ("dissent does not adequately explain why a federal statute and [the DCJSA] — with virtually identical stated purposes — should not be interpreted consistently").

. To be sure, "Congress is unlikely to intend any radical departures from past practice without making a point of saying so." Jones v. United States, 526 U.S. 227, 234, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999); Wilson, 351 U.S.App.D.C. at 274, 290 F.3d at 360 (quoting Jones). But in Jones, the proposed reading of the statute would have contravened the familiar rule that "where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, this Court's duty is to adopt the latter." 526 U.S. at 239, 119 S.Ct. 1215. In Wilson, the construction of the new statute urged upon the court would, for no discernible reason, have changed "the established practice for appointing members of the Commission on Civil Rights.” 351 U.S.App.D.C. at 274, 290 F.3d at 360. These would have been truly unexplained "radical departures.” By contrast, in the context of the entire statute, the modest alteration in the DCJSA of the FJSSA’s discovery provisions cannot fairly be so characterized.

. The Court in Test further stated that the result reached was also required by "the statute’s overall purpose of insuring grand and petit juries selected at random from a fair cross-section of the community.” Id. at 30, 95 S.Ct. 749 (citation and internal quotation marks omitted). The significance of this language, for purposes of this case, is discussed in detail in Gause I, 959 A.2d at 683-84, and we adopt that discussion without repeating it.

. According to the majority, the "change in meaning” canon of construction should not be invoked here because there is a substantive difference between the threshold showing imposed by the trial judge and the less demanding one articulated by the division. Specifically, the trial judge (who did not discuss the canon at all) required a showing of a prima facie case, while the division, following rulings by the highest courts of California and Florida, held that a reasonable suspicion standard was appropriate.

With due respect, the majority's argument is based on a complete non-sequitur. A difference of opinion between the division and the trial judge, in articulating the specific threshold showing that a moving defendant should be required to make, has nothing whatever to do with the question of statutory construction before us, namely, whether the omission from the DCJSA of the "shall be allowed to inspect” language in § 1867(f) and of the "shall be entitled to present" language in § 1867(d) discloses an intent on the part of Congress to depart from the federal statute’s standard.

. The majority eschews the explicit use of the phrase "plain language,” but it says that there is no "plain reading” of the statute other than its own.

. The title of § 11-1914 is “Preservation of Records” — language which does not immediately bring to mind "threshold showing” issues. By way of contrast, § 1867(f) and § 1867(d) are contained in a provision of the FJSSA entitled "Challenging compliance with selection procedures.” The question whether a threshold showing is required fits more logically into a provision about "challenging compliance” than it does into a section dealing with "preservation of records.” While such headings are not conclusive, they do provide some indication regarding what a particular provision is about.

In footnote 10 of its opinion and the related text, the court points out that § 11 — 1914(b) (DCJSA) and § 1867(f) (FJSSA) both contain general prohibitions against disclosure of confidential jury information and that each provision contemplates an exception in relation to motions challenging the composition of the jury list. These non-substantive similarities, however, simply emphasize the critical and dispositive differences, namely that the FJSSA expressly creates an unqualified right to inspect and present, while the DCJSA does not.

. In asserting that in the foregoing sentence, "the dissent undermines its own reasoning that nothing in a section entitled 'preservation of records’ could be relevant [to the issue at hand]," the majority constructs a straw man and proceeds to knock the unfortunate fellow down. As we have noted in footnote 9, supra, a provision governing the requirement vel non of a threshold requirement fits more logically under a heading relating to challenges to selection procedures than it does under the title "Preservation of Records.” This does not mean that the "Preservation of Records” provision cannot recognize that an exception exists, but still leave it to other provisions of the statute, or where necessary to the court, to define the extent of that exception and the showing that must be made.

. See Part III, infra.

. According to the court, “the dissent reads too much into the absence of a few words.” Those "few words,” however, are the ones (in two separate subsections of § 1867) that address and resolve the issue before us, and their "absence” (a word apparently used by the majority, in place of "omission," to imply that the change may not have been deliberate) therefore makes all the difference in the world.

. The majority does not, and indeed cannot, explain why a "reasonable suspicion” or "reasonable belief” standard is sufficiently definite to support a significant temporary deprivation of personal liberty, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), but too vague to enable the trial court to resolve a request for discovery.

. Part II. C of the majority opinion deals primarily with contingencies that may or may not arise in the future (e.g., what juror-related facts may be relevant, when a protective order may be appropriate, whether attorneys’ eyes only restrictions may be imposed), but which have not been raised by any party in this appeal. Indeed, the evidence in this case, and the facts relating to the selection of the jury that convicted the appellants, are conspicuous in their absence from the opinion of the court, which treats the issue before us as a somewhat abstract one, replete with advisory "guidance” for the Superior Court and counsel. In any event, we think it premature for a court, and especially for a sharply divided court, to ruminate in advance regarding issues that may or may not be presented in the future. See, e.g., Allen v. United States, 603 A.2d 1219, 1228-29 n. 20 (D.C.1992) (en banc); District of Columbia v. Wical Ltd. P’ship, 630 A.2d 174, 181-82 (D.C.1993); Gause I, 959 A.2d at 687 n. 16. We also think that the majority’s foray into advisory guidance about the trial court’s authority to order disclosure of jury records incrementally — i.e., only as necessary — is really a retreat from the “unqualified right to all relevant jury records” standard that the majority insists on importing into the DCJSA.