Oregon Supreme Court Denies Public Access to Preliminary Jury Pool Records
 
August 8, 2006
 

The Oregon Supreme Court recently held that, although jury selection and preliminary hearings in criminal cases generally must be open to the public, neither Oregon law nor the United States Constitution requires public access to the jury pool compilation processes leading to jury selection.

In Jury Service Resource Center v. De Muniz, the plaintiffs, representing members of the public, brought suit against the state of Oregon, the State Court Administrator, and other state and county officials demanding access to certain jury pool records. Those records consist of “source lists,” “master lists” and “term lists,” from which county courts select potential jurors. The process for compiling these lists is statutory, and the various state officials involved in compiling the lists have little or no discretion in performing those tasks. The lists are finalized before the beginning of any trial for which the lists will be used.

The plaintiffs sought jury pool records from three counties in Oregon. The counties, the Oregon Attorney General and the trial court all denied the plaintiffs access. The plaintiffs then appealed to the Oregon Court of Appeals asserting various claims, including their right of access to the records based on the Oregon Public Records Law, the Oregon Constitution (free speech provision, open courts provision, and privileges and immunities provision), and the First Amendment to the U.S. Constitution. The Court of Appeals rejected the plaintiffs’ claims under Oregon law but granted the plaintiffs access to the records based on their First Amendment claim, focusing on U.S. Supreme Court cases addressing presumptively open processes in the criminal justice system.

The Oregon Supreme Court granted review and summarily agreed with the Court of Appeals in its conclusion that neither Oregon statutes nor the Oregon Constitution supported the plaintiffs’ claims. Therefore, the Oregon Supreme Court addressed the plaintiffs’ claim based on the U.S. Constitution.

The U.S. Supreme Court has held that the First Amendment protects the right to observe certain parts of the administration of justice. That right particularly extends to criminal trials, which historically have been open to the public to prevent abuse. The Court has stated that the protection of the free discussion of governmental affairs was one of the main purposes of the First Amendment, and that access to criminal trials falls well within that protection. Further, the jury selection process and other preliminary procedures in criminal trials have been presumed to be a public processes. Such processes are essential to the operation of the criminal justice system.

According to the Oregon Supreme Court, the logical conclusion to be drawn from the U.S. Supreme Court opinions is that judicial proceedings that historically have been “presumptively open” should be accessible to the public and kept closed only for good cause shown. It is the historical record that will demonstrate whether a particular process has been presumptively open and whether it plays a significant role in the process of justice.

The Oregon Supreme Court concluded that the process of compiling a list of eligible jurors has never been “presumptively open” as defined by the U.S. Supreme Court. The Oregon Court quoted historical sources demonstrating that the selection of a jury pool, as opposed to particular jurors, had been left to a public official at English common law, and became a statutory process in this country in the 19th century.

The Court categorized the preliminary jury lists as merely government information, as opposed to a piece of the justice system. Compiling those lists is a statutory process in which the officials involved have little discretion. The Court concluded that, although allowing the public access to jury trials and the justice system is protected by the U.S. Constitution and important in ensuring the proper functioning of that system, the jury records at issue here were little more than work product of government officials and, as such, access to them was not protected by the First Amendment. The Oregon Supreme Court reversed the Court of Appeals and affirmed the trial court’s summary judgment for defendants.

For more information, e-mail Chuck Tobin at chuck.tobin@hklaw.com or call toll free, 1-888-688-8500.