Just Jurors Deserve Just Compensation
Criminal Law Committee “Just Jurors Deserve Just Compensation” by Taylor L. Chatting, Esq., and Gabriela A. Bonilla, Esq. // Jury service is an indispensable patriotic duty of the citizenry. The American right to a trial-by-jury is one of the pillars of our democratic society. Jury duty provides an opportunity for citizens to preserve and participate in the American experience of self-government. The preservation of the American right to a trial-by-jury depends equally on jurors’ willingness to serve and the quality of such service. Nonetheless, jurors are underpaid for their civic duties, raising concerns as to a juror’s ability to reach fair and just verdicts despite the realities of their economic situations. The real question remains: Why hasn’t the Florida Legislature raised the juror compensation rate since 1995?1
Jury duty is compulsory in nature similar to paying taxes. Citizens cannot refuse to participate when summoned, thus jurors sacrifice their wages during the time they serve to contribute to the justice system. In response, the Legislature established a statutory compensation policy to prevent the imposition of financial hardship upon any juror in performance of their duty.2 Despite the Legislature’s intent, jurors continue to receive a mere $15 per day for the first three days of service and, thereafter, $30 per day for each day of service.3 For nearly three decades now, the courts have expressed their sympathy for the plight of jurors that forego usual compensation and, instead, receive far less than the federal minimum wage.4
There is limited opportunity for reform, because according to the Florida State Constitution, the Legislature is prohibited from enacting special or local laws that regulate compensation of juries, leaving the regular legislative session as the only option.5 Yet the Legislature has done little to increase compensation, and recent amendments have either been trivial – such as allowing jurors to donate their compensation checks to charity6 – or have even minimized the opportunity for increase by dramatically decreasing the available funds. For example, a 2008 amendment to the statute made the clerk of the court the financier responsible for jury compensation rather than the State.7 In response to the de minimis benefit, many in the legal community have lobbied to raise juror compensation to the statutory minimum wage. The most recent push for change came from Democratic Senator Jose Javier-Rodriguez from Miami, who introduced a bill that would increase the basic daily rate to $64.80 per day for ten days of service with an additional increase to $97.20 for the eleventh day and each day thereafter.8 In addition to Senator Javier-Rodriguez’s proposed bill, legal defense counsel have also attempted to increase jury compensation. Claiming violations of the Sixth and the Fourteenth Amendments regarding Due Process and Equal Protection, legal defense counsel have sought orders from the court to increase jury compensation to minimum wage or to provide for alternative benefits, such as childcare expenses.9 However, the courts have found that low juror pay does not violate the Sixth or Fourteenth Amendments.10 Rather, Florida courts consistently hold that their hands are tied because a juror’s right to compensation is a statutory matter, not a judicial one.11
In a recent Ninth Circuit case, an order was entered denying compensation for jurors at current or minimum wage, citing case law from various jurisdictions, which concurrently held that low juror pay does not violate the Sixth and Fourteenth Amendments, nor does it violate equal protection or due process.12 The jurisprudence on this issue tells us that jury duty is not a form of employment but a responsibility owed by a citizen to the State when summoned.13 Still, some members of the legal community continue to file motions to raise juror compensation. The reasoning for this is simple: raising the wages given to jurors fosters greater community representation in the petit jury panel and active involvement in democracy. The Florida district court in Leonard v. State,14 which cites the United States Supreme Court in Duren v. Missouri,15 affirmed that a defendant is entitled a venire that is a cross-section of the community in which the defendant lives. Although such entitlement does not extend to the petit jury,16 there can really be no hope of a representative jury if many members of the community are discouraged from being selected on the basis of financial hardship. Financial hardship is frequently cited by potential jurors as a reason why they should not be selected for jury duty by both legal practitioners and venire members. Entrepreneurs, small-business owners, and medical professionals with their own practices cannot afford to close down their shops for days at a time for less than minimum wage. As such, it is logical to believe that people in these professions – as well as others – would avoid jury duty like the plague. The often-heard cause challenge argument by counsel is that a juror simply cannot devote complete, undivided attention to the facts and evidence being presented whether it be because of their wages being sacrificed or they cannot afford childcare.
Federal law does not require private employers to pay employees for time spent not working, which includes time spent for jury duty, under The Fair Labor Standard Act. However, eight states – Alabama, Colorado, Connecticut, Louisiana, Massachusetts, Nebraska, New York, and Tennessee – require employers to pay employees’ salaries when summoned for jury duty. Florida is notably missing from the list. Whether through patriotic duty or simply good business acumen, some Florida-based companies have picked up the slack, and companies such as Disney, Florida Power & Light, and Publix offer their employees paid juror leave. The lack of leadership has left the citizens of Florida to receive $1.87 an hour for three days of service and $3.75 an hour after the fourth day of service. Only through eliminating the burden of financial hardship on potential jurors can the justice system thrive on its maxim of equal justice under the law.
The Orange County Bar Association’s president, Richard Dellinger, Esq., addressed the “justice gap” concern last year in relation to the community’s access to justice and access to our courts.17 After all, equal access means justice for all. The Florida Courts published its Florida State Courts Annual Report in which the judiciary identifies and develops strategic plans to reduce obstacles such as economic barriers, cultural bias, language or communication obstructions, and physical or electronic impediments that hinder meaningful and informed access to the justice system. Out of a $521.7 million budget that was allocated by the Legislature to the judicial branch, $20.4 million was provided for worthy project funding during the fiscal year of 2016, such as court self-help technology centers and Do-It-Yourself Florida for self-represented litigants. The following fiscal year, the Legislature budgeted $513.8 million to the judicial branch without reducing the pool of funds available for project initiatives.18 Despite the available $20-million fund for worthy projects, lawmakers and other agents of authority have not been compelled to implement measures to adequately compensate jurors.
So why exert all this effort for a representative cross-section? Thomas Jefferson wrote that he considered trial by jury “the only anchor, ever yet imagined by man, by which a government can be held to the principles of it’s [sic] constitution.”20 The American justice system, similar to its electoral system, is intended to be representative. As one of the pillars of our democracy, the Sixth Amendment to the U.S. Constitution guarantees the accused a speedy, public trial by an impartial jury and the and the Seventh Amendment preserves the right to a jury trial for parties in civil trials. The Founders of our Constitution believed that a trial by a jury of one’s peers was a better gauge of guilt than trial by the ivory tower. Defendants deserve to be judged by those with similar life experiences as well as by those with differing experiences. In that way, the venire and the petit juries are supposed to mirror society at-large, with checks on aristocracy and elitism. If this representative panel comprised of people from different walks of life can settle on the guilt of the defendant, then he is guilty. Conversely, a jury may find the defendant not guilty. Without a representative cross-section, however, the disenfranchised members of our community continue to be marginalized from the American values and way of self-government.
Establishing the Florida Commission on Access to Civil Justice in 2004, former Chief Justice Jorge Labarga set out to address issues affecting or impeding access to civil justice for disadvantaged and low-income Floridians, including but not limited to providing a forum for discussion among the judicial branch, legislative branch, and executive branch.21 The Administrative Order establishing the Commission specifically sought to examine how available resources might be maximized and to identify how additional resources might be procured in order to provide stable funding in support of services that enhance access to civil justice for disadvantaged and low-income citizens. The issue of underpaid jurors is squarely in line with the fundamental principle of access to justice and commitment to fairness and impartiality. Perhaps an additional initiative should be implemented to fund the clerks of the court, who are the financiers responsible for juror compensation.
Many of the cases for which we ask jurors to donate their time, and often living wages, are complex and challenging, ranging from sexual battery on a minor to medical-malpractice lawsuits. The efficacy of our democracy, our court system, and our Constitution rests on the dutiful jurors who are summoned statewide. As former Florida Supreme Court Justice Labarga stated: “If courts are to carry out their essential roles they must have the trust and confidence of the people they serve. . . . But [the courts] would labor in vain if [they] did not have a rock-solid foundation of public trust. As people learn more about their courts, this foundation is strengthened.” Each time we dismiss a venire member for cause challenges grounded in socioeconomic status – whether their employer does not pay for jury duty, or an entrepreneur cannot afford to close down business, or a parent cannot afford childcare – the pillars of our justice system weaken, perpetuating public distrust. It has become our moral imperative to bridge the “justice gap,” as coined by OCBA president Richard Dellinger.
It is difficult to believe that, when faced with missing work and receiving far less than the minimum wage, jurors’ minds do not retreat to their wallets even when faced with issues on life, liberty, and property in the courtroom and deliberating room. While jurors surely do their best to try cases fairly, the justice system should also do all it can to eliminate any source of hardship for jurors. While some sources of hardship are impossible to remove, raising juror wages to the statutory minimum wage appears to be a straightforward solution to one of the main concerns. In doing so, we continue to preserve this most fundamental of civic duties and ensure the protection of citizens’ rights to a fair trial.
Taylor L. Chatting, Esq., is an assistant public defender with the Ninth Judicial Circuit Public Defender’s Office. She has been a member of the OCBA since 2018.
Gabriela A. Bonilla, Esq., is an assistant state attorney with the Fifth Judicial Circuit and also an associate attorney with Carmona Law, P.A., representing clients in civil matters. She has been a member of the OCBA since 2017.
1As effective July 1, 1995, ch. 95-147, 1995 Fla. Laws (amending Fla. Stat. § 40.24 (b)(4) (1995)).
2§ 40.24(1), Fla. Stat. (2017).
3See Id. at § 40.24(b)(4).
4Patierno v. Florida, 391 So.2d 391, 392 (Fla. 2d DCA 1980).
5Art. III, § 11(a)(5), Fla. Const.
6§ 40.24(8), Fla. Stat. (2017).
7Act effective July 1, 2008, ch. 2008-111, 2008 Fla. Laws (amending Fla. Stat. §40.24 (2008)).
8Fla. SB 1606 (2017) (introduced in March 2017 but died in Judiciary in May 2017).
9See Florida v. Sanel Saint-Simon, 2014-CF-12661 (Fla. Cir. Ct), Def. Mot. for Compensation of Jurors at Current Wages and for Reimbursement to Primary Caregivers for Day Care Costs (filed on Dec. 12, 2017).
10Patierno, 391 So.2d at 392-93; see also People v. Davis, 522 N.Y.S.2d 1017, 1019-20 (N.Y. Sup.Ct. 1987); St. Clair v. Commonwealth, 451 S.W.3d 597, 622-623 (Ky. 2014).
11Patierno, 391 So.2d at 393; see also Hilton v. Curry, 124 Cal. 84, 86 (Cal. 1899).
12See Florida v. Markeith Loyd, 2016-CF-015738-A-O, Orange County Clerk of Courts for the Ninth Judicial Circuit, Order Denying Def. Mot. For Compensation of Jurors At Current Minimum Wage (Oct. 11, 2018).
13Brouwer v. Metropolitan Dade County, 139 F.3d 817, 818-19 (11th Cir. 1998); see also St. Clair v. Commonwealth, 451 S.W.3d 597, 622-623 (Ky. 2014); North Carolina v. Setzer, 42 N.C. App. 98, 256 S.E.2d 485, 488 (1979).
14659 So.2d 1210 (4th DCA 1995).
15439 U.S. 357 (1979).
16See Taylor v. Louisiana, 419 U.S. 522, 537 (1975).
17Expanding Access to Justice: Legal Aid, Self Help Center, Technology, Lawyer Referral, and Modest Means, Richard S. Dellinger, Esq., Orange County Bar Association The Briefs, Vol. 86, No. 7, August 2018.
18Florida Courts, Annual Reports, available at https://www.flcourts.org/Publications-Statistics/Publications/Annual-Reports.
19Florida Courts, 2017-2018 Fiscal Year State Courts Appropriations, available at
20From “Thomas Jefferson to Thomas Paine, 11 July 1789” available at https://founders.archives.gov/documents/Jefferson/01-15-02-0259.
21In re: Florida Commission On Access to Civil Justice, Administrative Order No. AOSC14-65 (2004).
The Briefs, March 2019. Vol. 87 No. 3.