Fill and Sign the Uniform Rules of Practice Kankakee County Illinois

IN THE CIRCUIT COURT OF_________ COUNTY, ____________ NAME OF PLAINTIFF ) ) ) V. ) NO. ) ) NAME OF DEFENDANT ) ) ) MOTION FOR COMPENSATION OF JURORS AT CURRENT WAGES AND FOR REIMBURSEMENT OF PRIMARY CARE COSTS COMES NOW, ______________, by counsel, and moves this Court pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Consti tution and Article ______, Sections _________ of the __________ Constitution to order compensation of jurors as current wages and for reimbursement of primary care costs. In support of his motion, ________________ states as follows: 1. It is habitual for jurors in __________ to be paid minimal sums for jury service, which obviously results in considerable hardship for those who may be kept from their jobs for several weeks in an extended capital case. These people--generally daily wage earners of rather low income--constitute a legally cognizable group. 2. In __________, women still provide primary care to children under most circumstances. Women are routinely excused from jury service because they have small children, rather than being offered the alternative of child care, as is provided i n many other parts of the world to mothers who wish to work, or take their proper place in society. This violat es ____________'s rights, as well as the rights of the mother. Cf. Duren v. Missouri, 439 U.S. 357 (1979) (exemption, rather than exclusion, of women based on sexual stereotype of all mothers being in charge of child care struck down). 3. The Sixth Amendment to the United States Constitution guarantees every criminal defendant the right to jury drawn from a pool which fairly represents a cross-section of the community. See, e.g., Duren v. Missouri, 439 U.S. 357 (1979); Taylor v. Louisiana, 419 U.S. 522 (1975). It is of particular importance in a death penalty case that the jury which decides the defendant's fate fairly represents the community, for juries are required to consider "as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Locket t v. Ohio, 438 U.S. 586, 604 (1978) (emphasis in original); see also Davis v. Zant, 721 F.2d 1478, 1482 (11th Cir. 1983). 4. The per diem and mileage compensation allowed by the Circuit Court does not even provide jurors with the minimum wage of $4.35 per hour. See 29 U.S.C. -2- ? 206(a)(1) (as amended, 1990). At a most basic level, the minimum wage law is designed to fix: a floor below which wages could not fall [so] that individuals . . . would be guaranteed an income on which one could maintain a minimum living standard and not find it necessary either to rely on Government assistance or to go without basic necessities. . . . S.REP. No. 440, 95th Cong., 1st Sess. 2-3 (1977) ; see also Fair Labor Standards Act of 1938 . Indeed, "we are acknowledging and supporting poverty by law, unless we raise the minimum wage standards to at least above the poverty level." 112 CONG. REC. 19744 (1965) (remarks of Sen. Yarborough) (emphasis supplied). In addition to hourly workers, the federal minimum wage has been held to apply to various other groups represented on the jury venire, from journalists, see, e.g., Sun Publishing Company v. Walling, 140 F.2d 445 (6th Cir. 1944), cert. denied, 322 U.S. 728, 64 S. Ct. 946, 88 L. Ed. 1564 (1944); to bank workers, see, e.g., Hodgson v. Industrial Bank of Savannah, 347 F.Supp. 63 (S.D.Ga. 1972); and to the manager of a state mental institution. See, e.g., Williams v. Eastside Mental Health Center, Inc., 669 F.2d 671 (11th Cir. 1982). Indeed, currently there are over 13.2 million employees of service industries protected by the provisions of the law--twenty percent of the total workforce covered. See Roberts & Bowers, Patching the Crack in the Floor , CLEARINGHOUSE REVIEW, 26 (May 1988). Similarly, the minimum wage must be applied to jurors, who may be charged with the most difficult job of all--deciding whether ________________ should live or die. 5. It is no answer to say that by electing to vote (itself a fundamental constitutional right of any citizen), potential jurors "agree" to sub-minimum wages: It has been repeatedly held that parties themselves may not contract to work for less than the minimum wage rate. This Court has said "[T]he obligation of the employer to meet the minimum working conditions prescribed in the Act is statutory and a matter of general public policy, and cannot be waived or contracted away by individual employers or employees." Wirtz v. Leonard, 317 F.2d 768, 769 (5th Cir. 1963) (quoting Mitchell v. Turner, 286 F.2d 104, 106 (5th Cir.)); accord Hargis v. Wabash Railroad Co., 163 F.2d 608, 611-12 (7th Cir. 1947); De Pasquale v. Williams-Bauer Corporation, 151 F.2d 578, 579 (2d Cir. 1945); see also Republic Pictures Corporation v. Kappler, 151 -3- F.2d 543 (8th Cir. 1945) (state itself cannot legislate to limit effect of FLSA ). 6. Equally, absent adequate compensation and reimbursement for the costs of primary care, it is practically impossible for daily laborers and persons caring for young children to serve on the jury. Because such persons are forced to request excuses for hardship, as they are unable to afford the financial loss that jury service entails, they are systematically excluded from the jury pool. See Gadsden Times Publishing Corp. v. Dean, 268 So. 2d 829 (Ala. App.), cert. denied, 268 So. 2d 834 (Ala. 1972), rev'd on other grounds, 412 U.S. 543 (1973) (purpose of paying jurors is to ensure that those rendering service to the state receive adequate compensation) (emphasis added). The de facto exclusion of these groups violates ________________'s rights. Daily wage earners and primary caregivers for young children are cognizable groups for Sixth Amendment purposes and their underrepresentation from jury pools would clearly constitute a violation of ______________'s constitutional rights. See, e.g., Theil v. Southern Pacific Co., 328 U.S. 217 (1946). The Supreme Court has recently made it clear once again that cognizable groups are not limited to racial minorities, women, and young people, but that a "Sixth Amendment [fair-cross section] claim would be just as strong if the object of the exclusion had been, not blacks, but postmen, or lawyers, or clergymen, or any number of other identi- fiable groups." Holland v. Illinois, 493 U.S. 474, 110 S. Ct. 803, 107 L. Ed. 2d 905, 919 (1990) (emphasis added). 7. The systematic under-compensation of jurors operates to deny the defendant his fundamental constitutional rights--in particular, the right to an impartial jury drawn from a fair cross-section of the community, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. It should also be emphasized that the results of under-compensation of jurors carries with it further adverse ramifications such as the consequential exclusion of jurors due to age, sex, and ethnicity, all of which bear a direct relationship to income strata, or to being the primary care giver in the family. Systematic under-compensation of jurors would thus run afoul of the relevant provisions of the state and federal constitutions. Hill v. Texas, 316 U.S. 400, 404 (1942); Akins v. Texas, 325 U.S. 398 (1945). 8. The systematic underrepresentation of distinctive groups accomplished through failure to pay an adequate compensation to jurors is analogous to the practice struck down in Machetti v. Linahan, 679 F.2d 236 (11th Cir. 1982). In Machetti, the court declared a Georgia statute unconstitutional in which women were allowed to opt out on jury duty simply by sending in -4- a form that stated they were female. Having to excuse wage earners and primary caregivers of small children because of financial hardship creates underrepresentation of distinctive groups and denies a defendant the "right to a fair trial by [a] jury of a representative segment of the community." Id. at 239. 9. Regardless of whether ________________ himself belongs to any of the groups which may be unconstitution- ally underrepresented in the County jury pools, he has standing to challenge their exclusion. See Powers v. Ohio, 499 U.S. ___, 111 S. Ct. ___, 113 L. Ed. 2d 411 (1991). The Supreme Court has held that the Sixth Amendment entitles every defendant to object to a venire that is not designed to represent a fair cross section of the community, whether or not the systematically excluded groups are groups to which he himself belongs. WHEREFORE, __________________ moves this Court, after an evidentiary hearing on the motion, 1. to pay jurors their current wages and to compensate primary caregivers for day care costs, or, in the alternative, 2. to increase the flat rate paid to citizens called for jury service. Respectfully submitted, ______________________________________ CERTIFICATE OF SERVICE I, ___________, attorney for ________________, do hereby certify that I have on this day delivered, by hand, a true and correct copy of the foregoing Motion to This the ____ day of __________ _______. Respectfully submitted, _____________________________