Brittany Casola

Using Motor-Voter Rolls Can Enhance Inclusiveness in Jury Pools

Jury Trial Improvement Committee Newsletter

Editor's note: On October 2, 2018, the California Secretary of State reported a record 19 million registered voters are now on the rolls. According to Paul Mitchell, head of Political Data, Inc., much of the rise in registered voters is the new California Department of Motor Vehicle program that automatically signs up voters or updates their address, when they renew drivers' licenses and identification cards. The DMV process has had some "bumps in the road." By the end of 2018, the DMV reports 23,000 mistakes including duplicate registration and incorrect part affiliation and 1,500 improper registrations of parolees, noncitizens and minors!

Brittany Casola
Brittany Casola, San Diego, CA

A United States citizen’s entitlement to a jury of one’s peers is a touchstone of our justice system and rooted in the Constitution’s right to trial by an impartial jury. Recognizing this democratic principle and striving to achieve adequate representation and inclusiveness in our federal jury panels is critical not only to afford criminal defendants a fair trial, but also essential to foster an environment of active public engagement and to support public confidence in “the process.”
Many district courts in the Ninth Circuit can vastly benefit by supplementing current source lists for their master jury wheels with driver’s license rolls. Currently, most impanelment lists in this circuit are compromised only of voter registration lists. The Ninth Circuit Jury Trial Improvement Committee has recommended the use of motor-voter pools in its Model Plan “in order to increase inclusiveness and to provide better representation of the adult citizen population who are qualified to serve as jurors.” Ninth Circuit Jury Trial Improvement Committee, First Report on Goals and Recommendations (“First Report”), May 2004, p. 4. Adopting the recommended practice of using motor-voter pools to populate jury panels would aid in efficiently reaching the maximum number of qualified citizens to serve as jurors, and would assist in diversifying jury panels to reflect the U.S. citizen population accurately.

The Federal Jury Selection and Service Act of 1968 declares “[i]t is the policy of the United States that all litigants in Federal courts entitled to a trial by jury shall have the right to . . . juries . . . from a fair cross section of the community . . .” 28 U.S.C. § 1861. The Act recognizes that voter lists are the primary source for jury impanelment lists but encourages federal courts to “prescribe some other source or sources . . . where necessary to foster the policy [of representation of a cross section].” 28 U.S.C. § 1863(b)(2); § 1861. In relevant part to this article, the two major requirements an individual must satisfy to be legally qualified to serve on a federal jury is that he or she (1) is a United States citizen and (2) is at least 18 years old. See 28 U.S.C. § 1865(b). Accordingly, voter rolls have historically been a widely accepted method used to create jury panels. In fact, there are currently eight districts in the Ninth Circuit that still utilize only voter lists for populating their jury panels: Alaska, Arizona, Central District of California, Southern District of California, Guam, Nevada, Northern Mariana Islands, and Oregon. However, voter rolls present a wide array of shortcomings that impede upon attaining jury inclusiveness.

Voter lists fail to constitute a “fair cross section of the community” primarily because minorities, the young, and the poor tend to register to vote and vote at lower rates than the remainder of the eligible population. See Jeffrey Abramson, “We, The Jury: The Jury System and the Ideal of Democracy,” at p. 128 (1994). Indeed, national census statistics reveal, “voter registration lists tend to disproportionately represent persons when compared to the total U.S. citizen population in certain age, income, employment classifications, and education categories.” First Report, p. 4. This phenomenon can be attributed in part to the failure of voter registration lists to keep up with the progression of technology, and as a result, voter lists ultimately fail to capture an accurate composition of eligible citizens. To illustrate, PEW researchers estimate at least 51 million eligible U.S. citizens are unregistered, representing more than 24 percent of the eligible population. See PEW, Election Initiatives “Inaccurate, Costly, and Inefficient: Evidence That America’s Voter Registration System Needs an Upgrade,” February 2012, p. 8. One reason for such a significant number of unregistered citizens is that archaic, “paper-based processes” used for voter registration fail to keep up with changes in individuals’ names, addresses, and/or party affiliations, thus, resulting in inaccurate and incomplete data.

The Ninth Circuit’s reach fares slightly better than the U.S. overall in that voter registration lists contain approximately 66 percent of the adult citizen population in the states that comprise the circuit. However, these percentages are wholly inadequate in light of the benchmarks for adequate source list coverage established by the American Bar Association (80 percent) and the National Center for State Courts (85 percent).

State programs, such as California’s New Motor Voter Program, are working to increase voter registration and will ultimately enhance inclusiveness for jury pools. See generally AB 1461. In April 2018, the California DMV began to automatically register qualified driver’s license applicants to vote when they renew or obtain a driver’s license, unless the applicant expressly opts out. Excluded from automatic voter registration are undocumented Californians who maintain drivers’ licenses pursuant to AB 60. See California Secretary of State, California Motor Voter, located at https://www.sos.ca.gov/ elections/california-motor-voter/. Under the program, the DMV sends voter information electronically to the California Secretary of State’s Office, which then verifies citizenship requirements. Importantly, the DMV and SOS will work conjunctively to ensure that individuals with AB 60 drivers’ licenses are not eligible to participate in the program.

California DMV spokesperson Jessica Gonzalez reported that the DMV has “programming in place” to prevent inadvertent voter registration of non-citizens. Moreover, Secretary of State Alex Padilla assures the security of voter registration under the new law, as potential voters will “have to demonstrate proof of age, [and] the vast majority of time people are showing a birth certificate or a passport, which also reflects citizenship. That’s arguably more secure than someone checking a box under penalty of perjury.” Samantha Lachman, Huffington Post, Jerry Brown Signs Automatic Voter Registration in California, October 10, 2015, at https://www.huffingtonpost.com/entry/automatic-voter-registration-california_us_561680d5e4b0082030a15119.

Lastly, voter pre-registration is available under the program for 16 and 17-year-olds, ensuring a greater presence of the younger population on future jury panels. Undoubtedly, this law advances the goal of attaining more representative jury pools for the remaining California district courts that have not yet added drivers’ license lists to their master wheels.

The committee is confident that supplementing current voter registration lists with drivers’ license lists would provide the most comprehensive coverage of eligible citizens—drivers’ license lists alone account for “more than 90 percent of the adult citizen population in the Ninth Circuit states.” First Report at p. 4. Accordingly, adding drivers’ license lists to federal impanelment wheels would ensure superior reach to all eligible U.S. citizens, increase public participation, significantly expand jury inclusiveness, and bolster the integrity of the justice system.


Pa. Supreme Court rules UPMC — and all employers — must protect workers' data. Doing so is harder.

 

UPMC BuildingGary Lynch, Esq. and Jamisen Etzel argued and won at the Commonwealth of Pennsylvania Supreme Court that UPMC breached common law legal duty.

They said UPMC had to meet a standard of reasonable care in handling employee data, because failure to do so could result in harm and it did - to the tune of several million dollars.

Read article online


Doctor using tablet

Carlson Lynch Wins Major Data Privacy Case in Pennsylvania Supreme Court

On November 21, 2018, the Supreme Court of Pennsylvania issued a landmark ruling in the case of Dittman v. UPMC in favor of employees at the University of Pittsburgh Medical Center (UPMC) represented by Carlson Lynch. In its decision, the Supreme Court of Pennsylvania held that UPMC had a duty to reasonably protect its workers’ personal data from cyber theft. This decision will very likely have a profound impact on future data breach litigation, specifically regarding the degree to which recipients of sensitive, personally identifying information are required to act reasonably in electronically storing and safeguarding such data. Gary Lynch argued the case on behalf of the employees, with Carlson Lynch attorney Jamisen Etzel spearheading the briefing.

How the Case Arose

In February 2014, UPMC first informed the public about its data breach. Initially, UPMC claimed the data leak involved the names, addresses, bank information, birth dates, salaries, and social security numbers of only 22 workers. Two months later, however, in April 2014, UPMC updated this information and stated that 27,000 workers had information stolen. In May 2014, UPMC finally confirmed that all of its current as well as former workers were affected by the breach.

While the extent of the breach was still being investigated, in June 2014, Carlson Lynch filed a class action lawsuit against UPMC in the Court of Common Pleas of Allegheny County, on behalf of all UPMC employees (consisting of approximately 62,000 current workers and an undetermined number of former employees). The lawsuit alleged that UPMC:

  • Failed to adopt, design, and maintain adequate security measures for worker data privacy rights.
  • Failed to implement processes that would detect security breaches in a timely manner
  • Failed to meet current data security industry standards regarding authentication protocols, encryption, and firewalls
  • Breached its duty of reasonable care to secure personal information, and
  • Violated administrative guidelines

The lawsuit sought recovery of economic losses resulting from the filing of fraudulent tax returns in the names of workers whose information was stolen, as well as the increased risk that workers faced in the future of becoming the victims of identity theft, fraud, and abuse.

The Procedural History of the Case

The case took several years before it was heard by the Pennsylvania Supreme Court. The Court of Common Pleas initially dismissed all counts in the complaint, holding that UPMC owed no duty to reasonably protect employee data from cyber theft and, in any event, such a negligence claim based solely on economic damages would be barred by Pennsylvania’s economic loss doctrine. The Superior Court later affirmed the Court of Common Pleas’ dismissal. The Supreme Court of Pennsylvania, however, ultimately reversed this decision.

The Supreme Court of Pennsylvania’s Ruling

 There are two notable components to the Supreme Court of Pennsylvania’s ruling:

  • Duty to protect sensitive data from cyber theft. As part of its decision, the Supreme Court of Pennsylvania rejected the concept that it was creating a “new affirmative duty” for the holders of sensitive information. Instead, the Court found it was merely applying a long-established duty to a novel scenario. As a result, the Court held that where an employer’s collection of personal data belonging to workers creates a foreseeable risk of data breach, an employer has a duty of reasonable care to secure this data. This led the Court to conclude that UPMC should have realized a cybercriminal might take advantage of vulnerabilities in the company’s computer system and steal data belonging to current and past workers.
  • Negligence claims involving “purely” economic loss. In its decision, the Supreme Court of Pennsylvania further held that Pennsylvania’s economic loss doctrine does not prohibit negligence claims seeking “purely” economic damages, so long as the duty sought to be enforced arises independently of any contractual duty. In reaching this holding, the Court clarified its prior decisions enunciating and applying the economic loss doctrine and rejected any and all previous pronouncements of the doctrine by lower Pennsylvania courts which had suggested an oversimplified interpretation of the doctrine which disallowed any tort claim in which only economic damages are sought. This significant holding by the Court makes it clear that if the duty which forms the basis for a tort claim arises independently of any contractual obligation between parties, such claim is viable even if purely economic damages are sought. As a result, the Court found that UPMC had a duty to reasonably secure personal data under general principles of negligence law, and the economic loss doctrine does not prohibit the workers’ claims.

Protecting the Privacy Rights of Workers

Data breaches are occurring in our society at an alarming rate. If you are a victim of a data breach, it is important to remember that the holder of your data is obligated to act reasonably to store and protect it from cyber theft. If you believe the holder of your data has failed to uphold this duty, please contact Gary Lynch at Carlson Lynch today by calling 1-(800)-467-5241 or contact us here.


Bruce Carlson

Bruce Carlson Selected Charter Member Rue Ratings Best Attorneys America

Carlson Lynch founding partner Bruce Carlson has been selected as a Charter Member of Rue Ratings’ Best Attorneys of America. Less than 1% of American attorneys are invited to join this prestigious, peer-reviewed organization, and there are 100 or fewer Charter Members in every state.

View Bruce's profile on Best Attorneys of America here.


Handicapped parking spot

Court Preliminarily Approves Nationwide ADA Parking Settlement Against Cracker Barrel

On May 15, 2017, the Honorable Robert C. Mitchell, sitting in the Western District of Pennsylvania, entered an Order preliminarily approving the proposed class actions settlement, directing the issuance of settlement notice and scheduling a hearing on final approval in Sarah Heinzl v. Cracker Barrel Old Country Store, Inc. This relief achieved on behalf of the mobility-disabled community is nothing less than extraordinary. The settlement is the culmination of two and a half years of vigorously pursued and hotly contested litigation in which Ms. Heinzl successfully defeated each and every motion filed by Cracker Barrel. The comprehensive and historic relief achieved here obligates Cracker Barrel to, not only, ensure that all of the Cracker Barrel Parking Facilities are accessible to individuals with mobility disabilities but it also puts in place a policy and process for identifying and removing barriers at Cracker Barrel Parking Facilities nationwide for years to come. Ms. Heinzl has proven her importance and dedication to the disabled community not only through her advocacy and past employment but also as a class representative in this case and others. Carlson Lynch partner Ed Kilpela led the firm’s litigation efforts behalf of the Class. Carlson Lynch partner Ed Kilpela led the firm’s litigation efforts behalf of the Class.


Steak N’ Shake Mobility-Disabled Accessibility Parking Lot

Carlson Lynch Certifies Class In Steak’n Shake

On April 27, 2017, the Honorable Robert C. Mitchell, sitting in the Western District of Pennsylvania, entered an Order certifying a class or all persons with mobility disabilities who were or will be denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any Steak ‘n Shake restaurant location in the United States on the basis of a disability because such persons encountered accessibility barriers in the parking facilities of the restaurant. In granting class certification, Judge Mitchell rejected every single argument advanced by Steak ‘n Shake and found the case presented common questions with common answers: “The Plaintiffs have shown sufficient evidence – at this juncture – that Defendant applies the same ADA maintenance policies and practices in a uniform way to the restaurants it owns and controls, which may prove to be harmful to the class members protected rights” noting that while Steak ‘n Shake monitors its parking lots for cracks and potholes it does nothing to identify or remediate slope issues and other relevant disability access violations. Additionally, Judge Mitchell confirmed Steak ‘n Shake’s obligation under the ADA to maintain the accessible features of its restaurants so that individuals with disabilities may have the same dining experience as able-bodied individuals. Carlson Lynch partner Ed Kilpela is leading the firm’s litigation efforts.


Woman using laptop

Federal Court Holds That Commercial Websites Are Public Accomodations

On April 21, 2017, the Honorable Arthur J. Schwab, sitting in the Western District of Pennsylvania, entered a Consolidated Memorandum Opinion and Order denying motions to dismiss filed by Churchill Downs Incorporated and AmeriServ Financial Bank. Plaintiffs in both cases -- Lisa Frazier, R. David New and Access Now Inc. -- are blind individuals who attempted to use various websites owned and operated by Churchill Downs and AmeriServ but could not because the websites are inaccessible in violation of the ADA. Plaintiffs, by way of their Complaints, asserted that a permanent injunction is necessary to ensure Defendants’ websites will become, and will remain accessible to Plaintiffs and other blind or visually impaired individuals.

Churchill Downs and Ameriserv each moved to dismiss Plaintiffs’ Complaints relying largely on the same underlying arguments -- that because the websites are not “places of public accommodation” under Title III of the ADA, Defendants cannot be said to have violated the ADA by virtue of their inaccessible websites. In a thorough and well-reasoned Opinion, Judge Schwab highlighted the purpose of the ADA based on its legislative history:

The purpose of Title III of the ADA, is “to bring individuals with disabilities into the economic and social mainstream of American life . . . in a clear, balanced, and reasonable manner.” H.R.Rep. No. 485, 101st Cong., 2d Sess., pt. 2, at 99 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 382. In drafting Title III, Congress intended that people with disabilities have equal access to the array of goods and services offered by private establishments and made available to those who do not have disabilities. S.Rep. No. 116, 101st Cong., 1st Sess. at 58 (1989).

Consistent with the statutory language of the ADA and case law in the 1st Circuit, 3rd Circuit and others, Judge Schwab held that because Plaintiffs’ were subject to discrimination at property which Churchill Downs and AmeriServ own and operate, and through which they offer their services, Churchill Downs and AmeriServ may be liable under Title III of the ADA.


Signing mortgage documents

Carlson Lynch Wins $24 Million Dollar Award On Behalf Of Certified Class Of Mortgage Borrowers Following 13 Day Federal Court Arbitration

On March 24, 2017, a three judge panel awarded $24 million dollars to a certified class of mortgage borrowers represented by Carlson Lynch.The award followed a 13 day arbitration trial conducted in the federal courthouse in Pittsburgh. The panel of arbitrators included a former judge from the United States District Court for the Western District of Pennsylvania and two former litigation department heads at AmLaw 100 law firms.Bruce Carlson was co-lead counsel for the class and Carlson along with his partner Gary Lynch led the Carlson Lynch trial team that tried the case. This arbitration award represented the culmination of more than ten years of litigation, including three trips to the United States Court of Appeals for the Third Circuit and the certification of a RICO class which was affirmed by the Third Circuit. Judge Arthur Schwab was the presiding judge in the District Court.


Mortgage documents

Third Circuit Affirms Class Certification In Nationwide Mortgage Fraud Action Against PNC Bank

On July 29, 2015, the Third Circuit issued a 62 page precedential opinion affirming a class certification order that had been entered in favor of 22,000 plus second mortgage borrowers and against PNC by Judge Arthur J.Schwab in the Western District of Pennsylvania. .

Bruce Carlson is co-lead counsel for this national class and presented oral argument on its behalf before the Third Circuit. Discovery in the case is largely complete and Carlson expects that the case will now proceed quickly to a jury trial. PNC has potential exposure of over 1 billion dollars in this matter.


Handicap parking spots

Important Opinion Denying Motion To Dismiss Issued In ADA Parking Accessibility Case Filed By Carlson Lynch Against Starbucks

On March 9, 2015, the United States District Court for the Western District of Pennsylvania (Mitchell, J.) issued an opinion denying a motion to dismiss filed by Starbucks in a case challenging the accessibility of parking lots at Starbucks restaurants. The opinion is significant in that it thoughtfully analyzes, and rejects, many of the defenses that have been historically asserted on behalf of defendants in barrier removal cases under Title III of the ADA. This case is part of Carlson Lynch’s national initiative to improve parking accessibility for those individuals with mobility disabilities—the top priority for the Department of Justice’s ADA enforcement division. To that end, and working with the disability rights community, Carlson Lynch files Title III cases with the objective of improving accessibility throughout a given public accommodation’s entire network of business locations—not just the location that was visited by a given disabled plaintiff. Bruce Carlson manages the disability rights group at Carlson Lynch.