Equal Protection Case if 290 Registrant Cannot Be Juror

Article VII, section 8 of the California Constitution provides that “Laws shall be made to exclude persons convicted of bribery, perjury, forgery, malfeasance in office, or other high crimes from office or serving on juries.” 

California Code of Civil Procedure, section 203(a) lists those persons ineligible to serve on a jury as: “(1) Persons who are not citizens of the United States; (2) Persons who are less than 18 years of age; (3) Persons who are not a domiciliary of the State of California . . . (4) Persons who are not residents of the jurisdiction wherein they are summoned to serve; (5) Persons who have been convicted of malfeasance in office and their civil rights have not been restored; (6) Persons who are not possessed of sufficient knowledge of the English language . . . (7) Persons who are serving as grand or trial jurors in any court of this state; (8) Persons who are the subject of conservatorship; (9) Persons while they are incarcerated in any prison or jail; (10) Persons who have been convicted of a felony and are currently on parole, post-release community supervision, felony probation or mandated supervision for the felony; and (11) Persons who are currently required to register as a sex offender pursuant to Penal Code § 290 based on a felony conviction.

It is the last category of persons ineligible to serve as a juror that this article concerns.

It merits mention that with the recent passage of Senate Bill 384 in 2017, those who were convicted of a felony sex offense and successfully petitioned to have their registration obligation terminated may serve on a jury, provided no other excluded category would apply (i.e., being incarcerated in any jail or prison, etc.).

The Alliance for Constitutional Sex Offense Laws (“The Alliance”) and John Doe filed a civil case against the Clerk of the Alameda County Superior Court, naming Chad Finke personally as well, alleging California Code of Civil Procedure § 203(a)(11)’s categorical exclusion of current sex offender registrants from jury service denies such registrants equal protection under the California Constitution.  The Alliance and Doe further sought an injunction preventing the Clerk from enforcing § 203(a)(11).

The Clerk of the Alameda County Superior Court filed a demurrer to the complaint, which the trial court sustained without leave to amend and entered a judgment of dismissal.

Plaintiff John Doe then appealed this ruling to the First Appellate District Court in San Francisco.

The First Appellate District affirmed the trial court’s ruling, finding the statutory disparity in treatment to registering sex offenders withstands rational basis scrutiny, as such a group is not a constitutionally suspect group, and therefore there is no denial of equal protection.

This article is presented to summarize how such an equal protection claim was evaluated, as we have many clients who tell us there are due process violations and equal protection violations, often without having the education in how a judge would evaluate such a claim. 

The first issue is what standard of review would apply: strict scrutiny or rational basis?  Rational basis review applies when the challenged statute implicates no suspect class or fundamental right.  In such cases, equal protection of the law is denied only where there is no rational relationship between the disparity in treatment and some legitimate governmental purpose.  Johnson v. Department of Justice (2015) 60 Cal. 4th 871, 881.

Serving as a juror is not a fundamental right and persons required to register as sex offenders are not a suspect class for purposes of constitutional equal protection analysis. Rubio v. Superior Court (1979) 24 Cal. 3d 93, 102.

Rational basis review is highly deferential to the legislators.  “When conducting rational basis review, we must accept any gross generalizations and rough accommodations that the Legislature seems to have made.  A classification is not arbitrary or irrational simply because there is an imperfect fit between means and ends.”  People v. Turnage (2012) 55 Cal. 4th 62, 77.

Here, the First Appellate District then explained that it was enough that the Legislature reasonably could be concerned that those groups (persons in prison or jail, persons on parole, felony probation or other mandated supervision and persons currently required to register as sex offenders) are more likely to harbor bias against the law and against the government than those convicted of felonies on account of their ongoing supervision and legal obligations.

Therefore, the demurrer was sustained and the case was dismissed.

For more information about convictions for sex offenses, 290 registration and civil rights, please click on the following articles: