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BERSHATSKY v. LEVIN

January 30, 1996

ABBE BERSHATSKY, Plaintiff, against WILBUR A. LEVIN, COMMISSIONER OF JURORS, KINGS COUNTY, NEW YORK, Defendant.


The opinion of the court was delivered by: TRAGER

 TRAGER, District Judge:

 This is an action brought by plaintiff, Abbe Bershatsky, for injunctive relief and a declaratory judgment that defendant, Wilbur A. Levin, Commissioner of Jurors, cannot use voter registration lists as a method for selecting jurors because it infringes upon her right to vote. Before the court is plaintiff's motion for a preliminary injunction and defendant's cross-motion to dismiss.

 Background

 Bershatsky, a citizen of the United States and the State of New York, is registered to vote in Kings County. Affidavit of Abbe Bershatsky, Ex. A of Compl. at P a. She explains that she received a juror questionnaire which stated that her name had been randomly selected from one of three lists, one of which is the Board of Elections Voter Registration List. The others are a list of filers of state income tax returns as well as a list of licensed drivers. Id. at P b. She further states that she returned the questionnaire, Id., and was called for jury duty on October 16, 1995. Id. at. P h. She also notes that she has a paying day job which is closer to her home than the court and that she has an elderly father at home with her. Id. at P e. Finally, she states that "I wish to vote at the next general election without the knowledge that that could cause me to be selected for jury duty." Id. at P d.

 In plaintiff's complaint, she alleges that several lists are used in order to select the jury pool and that there is no attempt to eliminate duplications from the several lists. Compl. at PP 5-6. However, she refuses to establish that she has been called for jury duty on more than one occasion. According to plaintiff: "People are intimidated or coerced from voting or from registering to vote by the practice of selecting people for jury duty from voter registration rolls." Aff. of Abbe Bershatsky at P 2. Furthermore, she alleges that "serving jury duty is economically disadvantageous to people." Id. at P 12. And, "people who register to vote in a federal election believe they increase the probability of being called for jury duty." Id. at P 13.

 Consequently, she maintains that it is "illegal and unconstitutional for defendants to select people for jury duty from voter registration rolls." Compl. at Wherefore Clause, P 1. According to plaintiff, "a citizen must choose between voting or decreasing the probability of a service he or she may consider onerous." Pltf's Memo. of Law at 2.

 Discussion

 Plaintiff's claim that the use of the voter registration list from which to select a jury interferes with one of her fundamental rights as a citizen overlooks the fundamental duty of a citizen. According to Justice Frankfurter, "jury duty should be regarded as a patriotic service, and that all public-spirited persons should willingly sacrifice pecuniary rewards in the performance of an obligation of citizenship." Thiel v. Southern Pacific Co., 328 U.S. 217, 231, 90 L. Ed. 1181, 66 S. Ct. 984 (1946).

 Furthermore, "jury duty is the only time today when the government asks someone to give up his or her private pursuits to serve it. Although we have a military draft, no one is called today. It is true that at times such service is highly inconvenient to employees and employers, but the maintenance and independence of the judiciary must be protected and can only be protected by protecting the rights of those who are called upon to serve as jurors. Jury service is a duty and a right of citizenship . . ." In re Grand Juror Webb, 586 F. Supp. 1480, 1483 (N.D. Ohio 1984). Consequently, plaintiff's claims of inconvenience and financial hardship are not acceptable reasons for not serving jury duty.

 Plaintiff's assertions that jury duty violates her right to vote and is economically burdensome also ignore the fundamental importance of ensuring that jurors are drawn from as broad a cross-section of the society as possible. A jury is "a body truly representative of the community, composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds." Carter v. Jury Commission of Greene Cty., 396 U.S. 320, 330, 24 L. Ed. 2d 549, 90 S. Ct. 518 (1970).

 Many courts have found that the use of voter registration lists is appropriate in order to provide a fair cross-section of the community. United States v. Cecil, 836 F.2d 1431, 1448 (4th Cir.). cert. denied, 487 U.S. 1205, 101 L. Ed. 2d 883, 108 S. Ct. 2846 (1988); see also United States v. Lewis, 10 F.3d 1086 (4th Cir. 1993) (upholding the use of voter registration lists for jury selection).

 In fact, Congress has stated that voter registration lists are the preferred source of names for prospective jurors because they ensure a fair cross-section of the community. See The Jury Selection Act, 28 U.S.C. ยง 1863(b)(2) (1988). "The use of voter registration lists was chosen by Congress in part because it provided each qualified citizen with an equal opportunity to cause his name to be among those from which random selection is made, and also because it was the largest generally available random source that was frequently updated." United States v. Cecil, 836 F.2d 1431, 1445 (4th Cir. 1988) citing H. Rep. No. 1076, 90th Cong., 2d Sess., reprinted in 1968 U.S. Code Cong. & Admin. News 1792. More recently, citing two of its prior decisions, the Seventh Circuit, in United States v. Ashley, 54 F.3d 311, 314 (7th Cir. 1995), reaffirmed the use of voter registration lists as the source of names for jury venires. See also, United ...


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