Jury Duty (Avoiding)

Some Judges Show Up for Jury Duty. Some Don’t. And Some Lawyer Up.

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"Some" is probably the wrong word in that last sentence, because I'd be surprised if this has ever happened before. But it did happen recently in the federal District of Kansas, according to this order by Judge Eric Melgren (thanks, Matt).

Judge Melgren notes that when potential jurors don't respond to a summons, he issues an order to show cause why they should not get in trouble for that. Typically, this involves a few hours of community service if the person has no good explanation. He followed that practice when some people failed to show up in mid-June. Then this happened:

In response to the Order to Show Cause, Mr. Hoelscher [a state-court judge] contacted the Court's jury clerk to discuss his actions and his reasons for non-appearance. Such contact is not unusual. What happened next, however, was most unusual; indeed, in this Court's experience, it is unprecedented. My staff received an irate phone call from an attorney, … indicating that he had been retained by Respondent [Hoelscher] …, informing my staff that respondent was a state court judge (of which fact we were aware) and that as such Respondent was not required to respond to the jury summons. [This] was quickly followed up with an email to the Chief Judge of this court threatening to subpoena numerous officials of this court to demonstrate their "ignorance of the law" and warning that "when I go to court, I go to win."

Wow. Or, as Judge Melgren put it, "the Court found these developments astonishing."

This is partly because, he says, he and other federal judges in Kansas have responded when state courts have summoned them, and they do this not because they have to, but because they don't expect "to be exempted from this duty of citizenship that we expect others to honor." He says that, in fact, one of his colleagues has served on a state-court jury. Now, it appears that Kansas law doesn't automatically exempt judges from state jury duty, but I have no doubt that any unwilling judge could get excused under this law. A phone call would probably do it. So I think it's still fair to say that any judge who serves on a state jury, or even shows up for the selection process, is doing so by choice.

By contrast, federal law does exempt all judges or other "public officers" from jury duty, and in fact the relevant statute says they are "barred from jury service on the ground that they are exempt." 28 U.S.C. § 1863(b)(6) (emphasis added).  So the state judge probably could not have served on the federal jury even if he'd wanted to. But Judge Melgren's point is that it would have been respectful (to other citizens as well as the federal court) to take the time to show up. Or at least to call beforehand, which he didn't do. Not only did he not do those things, he then hired a lawyer to threaten the federal court with subpoenas (or at least hired one who was willing to do that) for daring to summon him. That's the astonishing part.

I guess we can assume that the lawyer who says "when I go to court, I go to win," doesn't go to federal court to do that. Or at least that he won't be doing it anytime soon.