No resolution presented herein reflects the policy of the Minnesota State Bar Association until approved by the Assembly. Informational reports, comments, and supporting data are not approved by their acceptance for filing and do not become part of the policy of the Minnesota State Bar Association unless specifically approved by the Assembly.
Resolved: that the MSBA Diversity Committee supports, and pursuant to Art. 14 of the MSBA Bylaws calls upon the MSBA Assembly to support, SF 41 (introduced January 17, 2013), which would amend Minn. Stat. 593.32, subd. 1, by adding “marital status and sexual orientation” to the list of characteristics which may not serve as the basis of excluding Minnesotans from jury service.
In 2008, the MSBA Diversity Committee (along with the Human Rights and Legal Assistance to the Disadvantaged Committees) endorsed a resolution calling for an amendment to Minn. R. Crim. P. 26.02(7) (the numbering, but not content, of the Rule’s relevant subsection was amended afterward; this reference is to the current numbering), to expand the Rule’s prohibition on discrimination in the use of peremptory challenges based on race and sex, by making this Rule comport with Minn. R. Crim. P. 1.02, prohibiting discrimination in criminal trials on the basis of a more comprehensive list of characteristics, including marital status and sexual orientation. The Committee agreed that serving on a jury was a civic duty of all members of a community, and that characteristics such as these should not be used to deny residents the opportunity to perform this duty. Additionally, the Committee noted the inconsistency between several provisions of Court rules, including the Rules of Criminal Procedure, which barred discrimination on the basis of a broad list of characteristics, and the peremptory-challenge rule which, uniquely, was much more limited in scope. The Committee noted that race and sex were the characteristics which the United States Supreme Court had held, in Batson v. Kentucky and its progeny, triggered heightened review under the federal constitution, but also noted that nothing prohibited Minnesota from doing more to protect its residents from discrimination. Since that time, the Second Circuit Court of Appeals has held that sexual orientation also triggers heightened review, in the case of United States v. Windsor, now on the U.S. Supreme Court’s docket for oral argument in March 2013.
SF 41, as introduced, would extend existing prohibitions – already broader than the scope of Minn. R. Crim. P. 26.02(7) – on discrimination in jury service by including “marital status” and “sexual orientation,” thus bringing Minn. Stat. 593.32 into greater alignment with Minn. Stat. 363A.12, prohibiting discrimination in public (i.e., government) services, as well as with Minn. R. Crim. P. 1.02. The Committee believes now, as it did in 2008, that Minnesotans should not be exposed to invidious discrimination in jury service or in any part of our justice system, and views SF 41 as a positive step in the right direction.
Our call to support SF 41 complements, without superseding, our 2008 recommendation that the Minnesota Supreme Court expand the scope of Minn. R. Crim. P. 26.02(7).