When Nicole Bednarczyk received a summons to appear for jury duty, she had a hard decision to make: answer the call and risk her financial stability, or find a way out of jury service.
The law protects employees from being fired for taking time away from work to serve on a jury, but it does not necessarily require employers to continue to pay their employees during these periods. Instead, jurors are reliant on any money their state or local governments have decided to pay for jury service. In King County, Washington, where Ms. Bednarczyk was summoned, jurors are paid a mere ten dollars per day—far below the county’s minimum wage.
Perhaps recognizing that many people will not be able to remain in their homes or feed their families on $10 per day, King County does allow potential jurors to ask to be excused from service because of “economic hardship.” So Ms. Bednarczyk faced this stark choice: do her duty and risk failing to make ends meet, or forgo participating in one of the most important acts of citizenship so that she didn’t risk falling behind on her rent.
Unsurprisingly, Ms. Bednarczyk asked to be excused from jury duty. And she’s not alone. According to a report put out by the Washington State Minority and Justice Commission’s Jury Diversity Task Force, “economic hardship” is one of the most common reasons why potential jurors do not serve on Washington juries. Nationally, according to data compiled by the National Center for State Courts, about a dozen states provide for jurors to be paid $10 or less per day. A few—like South Dakota—increase that number for individuals who are actually empaneled to serve on a jury. But about half of American states provide for jurors to be paid no more than $25 per day for their service—less than half the national minimum wage of $7.25 an hour ($58 for an 8-hour workday).
This system ensures that people who are unable to take the equivalent of unpaid vacation time are forced out of jury service. In practice, it means that juries are richer, whiter, and have a narrower set of experiences and perspectives than the communities they are supposed to represent. This harms everyone involved in the justice system. It harms litigants, who are deprived of their constitutionally-guaranteed right to have their claims and defenses heard by a representative jury of their peers. It harms potential jurors who are forced to forgo their right to participate in what the Washington State Supreme Court has called a “ground level exercise of democratic values.” For many citizens, serving on a jury is the most direct opportunity they have to participate in the democratic process, outside of voting. And it harms the justice system itself and all of us who rely on it. Less economically and racially diverse juries have been shown to engage in less thorough and less accurate deliberations, which could lead to less reliable jury verdicts. More homogeneous juries not only increase the chance that bias will actually infect jury deliberations, but also make it more likely that the appearance of bias will erode faith in the justice system. The stakes, in sum, could not be higher.
And so, in 2016, Ms. Bednarczyk joined together with two other individuals, Ryan Rocha and Catherine Selin, to file a case on behalf of King County residents who were excluded from jury service because of King County’s practice of paying jurors just $10 a day. The plaintiffs, represented by Toby Marshall of the Terrell Marshall Law Group and Jeffrey Needle, make two separate arguments about why King County’s juror pay practices violate state law. First, they argue that King County is violating what they call Washington State’s “Juror Rights Statute,” which says that a “citizen shall not be excluded from jury service in [Washington] . . . on account of economic status.” Second, they argue that paying jurors only $10 per day violates the state’s minimum wage law, which requires employers to pay workers at least $12 per hour. The case is now before the Washington State Supreme Court, which heard argument on October 29, 2019.
Public Justice has long been dedicated to ensuring that our nation’s justice system works well and fairly for all Americans. Through our Access to Justice project, we have fought to ensure equal access to the courts by combating forced arbitration, chipping away at qualified immunity, knocking down barriers to class actions, and fighting back against court secrecy. As part of that work, we also fight to preserve and defend the jury trial system, which fulfills a special, vital function in our democracy. We believe that any system that disproportionately excludes lower-income citizens from juries erodes the quality of justice meted out by our nation’s court system. That’s why we joined the fight to improve King County’s juror payment system.
When Ms. Bednarczyk and her fellow plaintiffs’ case was pending before Washington’s highest court this fall, Public Justice filed a “friend of the court” brief in support of their cause. In our brief, available here, we argued that the jury system is a fundamental function of the judicial system in this country, central to the constitutional design. King County had previously argued that separations of powers—the constitutional diffusion of power meant to ensure that no single branch wields all the awesome power of government at once—meant that the Court was powerless to fix this glaring problem with the King County jury program. We argued to the contrary: that the separation of powers not only allows the Court to exercise its powers here, but in fact may demand that the judiciary exercise its authority to protect the jury system from the threat posed by the exclusion of low-income jurors. We were joined in this brief by the American Association for Justice.
The plaintiffs also were supported by heavy hitters in the fight for racial and economic justice in Washington State: the Washington State Supreme Court also received amicus briefs from the ACLU of Washington, King County Department of Public Defense, Fred T. Korematsu Center for Law and Equality, Washington Employment Lawyers Association, and Fair Work Center. Copies of all of the briefs filed in the case can be found here.
It is our hope that the Washington State Supreme Court will recognize its obligation to address King County’s exclusionary practices and act to ensure the continued integrity of the state’s jury system. This is important not only for the justice system in King County, but for courts across the country. More than a dozen states have laws similar to Washington’s Juror Rights Statute, and many have payment programs that also exclude lower-income citizens. A win in Washington could pave the way for improved access to meaningful justice nationwide.
Image via Patrick Feller on Flickr
Stevie Glaberson is a staff attorney in Public Justice’s Washington, D.C. office, focusing on access to justice issues.