J.B. VAN HOLLEN
ATTORNEY GENERAL
Raymond P. Taffora
Deputy Attorney General
114 East, State Capitol
P.O. Box 7857
Madison, WI 53707-7857
608/266-1221
TTY 1-800-947-3529
February 20, 2008 OAG—3—08
Mr. A. John Voelker
Director of State Courts
16 East, State Capitol
Madison, WI 53702
Dear Mr. Voelker:
You ask whether Wisconsin law permits a court to deliberately summon a greater number of potential jurors from some geographic areas than from others in an attempt to ensure that the racial and ethnic makeup of the juries that hear cases in the court better reflects a representative cross-section of the community served by the court.
I conclude that Wisconsin law, which requires that all qualified persons have an equal opportunity to be randomly summoned for jury service, does not permit a jury selection system that gives some persons a greater, and other persons a lesser, opportunity to be summoned, depending on the area of the community where they live.
The Wisconsin statutes governing the selection of juries expressly provide that “[a]ll persons selected for jury service shall be selected at random from the population of the area served by the circuit court,” and that “[a]ll qualified persons shall have an equal opportunity to be considered for jury service . . . .” Wis. Stat. § 756.001(4) (2005-06). To this end, courts must use some “method of selection that provides each qualified person with an equal probability of selection for jury service.” Id. In selecting persons to be summoned for jury service, the clerk of the circuit court “shall compile the list of prospective jurors by selecting names at random” from either a “list of persons residing in the area served by that circuit court” submitted annually by the Department of Transportation or a “master list.” Wis. Stat. § 756.04(3) and (4) (2005-06). The clerk of circuit court may create a master list using the department list and any of the following:
1. Voter registration lists.
2. Telephone and municipal directories.
3. Utility company lists.
4. Lists of payers of real property taxes.
5. Lists of high school graduates who are 18 years of age or older.
6. Lists of persons who are receiving aid to families with dependent children under subch. III of ch. 49. “To create a master list, the clerk of circuit court shall select randomly a sample of names from each source used. The same percentage of names shall be selected from each source used.” Wis. Stat. § 756.04(5)(b). Duplicate names appearing on more than one list shall be removed. Id. The non-duplicate names from the optional lists used “shall be combined with the names selected from the department list to create the master list.” Id. After a juror list has been created, “the clerk of circuit court shall provide the court with a sufficient number of names of prospective jurors . . . [by] randomly select[ing] names from the department list or master list.” Wis. Stat. § 756.04(9). These statutorily prescribed procedures for selecting prospective jurors are mandatory and must be complied with strictly.
Except for the option to create a master list, the jury selection statutes uniformly and repeatedly use the commandment “shall” in establishing the procedures to be followed. “Shall” is presumed to be mandatory, especially where it is used in the same statute as the term “may,” unless a different construction is necessary to carry out the clear legislative intent. State v. Thiel, 2004 WI App 225, ¶ 14, 277 Wis. 2d 698, 691 N.W.2d 388; Fond du Lac County v. Elizabeth M.P., 2003 WI App 232, ¶ 24, 267 Wis. 2d 739, 672 N.W.2d 88. The clear intent of the prescribed procedures is to guarantee “that all qualified citizens have the opportunity and the obligation to serve as jurors” by “obtaining jurors on the basis of objective qualifications . . . selected at random, and from a broad cross-section of the community,” so that there will “be no discriminatory practices in the selection.” State v. Coble, 100 Wis. 2d 179, 212-13, 301 N.W.2d 221 (1981). Methods of selection that deviate from the procedures carefully crafted to carry out this intent may “fail[] to insure, as does the statutory procedure, that a jury composed of persons qualified under the statutes is selected at random from a broad cross-section of the community.” Id., 100 Wis. 2d at 212. Therefore, the statutory procedures for selecting jurors are mandatory. See Oliver v. Heritage Mut. Ins. Co., 179 Wis. 2d 1, 9, 505 N.W.2d 452 (Ct. App. 1993). The Legislature has underscored the mandatory nature of the statutory selection procedures by requiring clerks who draw up a jury list to “certify that the names [of prospective jurors provided to the court] were selected in strict conformity with . . . chapter [756].” Wis. Stat. § 756.04(9). The courts of this state have agreed that the “jury selection procedure must be . . . in strict conformity with statutory requirements.” Coble, 100 Wis. 2d at 206; see Oliver, 179 Wis. 2d at 9-11. Deliberately summoning a greater number of potential jurors from some geographic areas than from others does not strictly comply with the mandatory statutory requirement that all persons selected for jury service must be selected at random from the population of the area served by the circuit court.
“Random” is a commonly used word whose meaning can be ascertained from a recognized dictionary. See, e.g., Orion Flight Serv. v. Basler Flight Serv., 2006 WI 51, ¶¶ 16, 24, 290 Wis. 2d 421, 714 N.W.2d 130. Something is “random” when it has no regular or specific plan or pattern. The American Heritage Dictionary 1496 (3d ed. 1996); Webster’s Third New International Dictionary 1880 (Unabridged ed. 1986). There must be the same or equal chance of occurrence for each and every member of a group. Id. Deliberately summoning different numbers of potential jurors from different districts plainly constitutes a plan or pattern that is contrary to the concept of randomness. Randomness is also skewed because the plan or pattern gives residents of some areas a greater chance, while offering others a lesser chance, of being summoned.
Moreover, because some persons have a greater chance of being summoned than others, this plan or pattern does not strictly comply with the statutory requirement that the method of selecting potential jurors must provide each qualified person with an equal probability of selection for jury service.
