November 23, 2005

ADM File No. 2003-04

Amendment of 
Rule 2.511 of the 
Michigan Court Rules
______________________

     On order of the Court, notice of the proposed changes of Rule 6.412 and an
opportunity for comment in writing and at a public hearing having been provided, and
consideration having been given to the comments received, the following amendment of
Rule 2.511 of the Michigan Court Rules is adopted, effective January 1, 2006.  The July 13,
2005, order amending Rule 2.511, also effective January 1, 2006, is only affected by this
order in that the new subsection (F) in this order causes the revisions in the July 13, 2005,
subsection (F) to be relettered as (G).

     

ICLE Editor's Note:


[Italicized, bracketed text] indicates text that has been deleted.

Bold text  indicates new text.




Rule 2.511   Impaneling the Jury

     (A)-(E)[Unchanged.]
     
     (F)   Discrimination in the Selection Process.
     
          (1)     No person shall be subjected to discrimination during voir
          dire on the basis of race, color, religion, national origin, or sex.
          
          (2)     Discrimination during voir dire on the basis of race, color,
          religion, national origin, or sex for the purpose of achieving what the
          court believes to be a balanced, proportionate, or representative jury in
          terms of these characteristics shall not constitute an excuse or
          justification for a violation of this subsection.
          
     [(F)-(G)](G)-(H)     [Relettered but otherwise unchanged.]

     Staff Comment:  The amendment of MCR 2.511(F) is new language that
states that discrimination on the basis of race, color, religion, national origin, or sex during
the selection process of a jury is prohibited even in cases where the purpose would be to
achieve balanced representation.  Former subrules (F) and (G) are relettered as (G) and (H).

     The staff comment is not an authoritative construction by the Court.

Young, J. (concurring).  I concur in the adoption of subrule (F) to MCR 2.511, which will prohibit
discrimination during voir dire against specifically enumerated protected classes.  The
goal of our rules is to make clear what is permissible, and what is not, within our judicial
system.  I believe that this amendment adds clarity to what the bench and bar are
permitted to consider in selecting a jury.

I write separately to address Justice Kelly's dissenting statement.  Justice Kelly opines that "[t]he
amendment does not further the end of eradicating discrimination from our civic
institutions and does not prevent the undermining of public confidence in the fairness of
our system of justice."  As she provides very little support for her conclusion, I am hard-
pressed to understand why the adoption of subrule (F), which specifically prohibits
discrimination in the jury selection process based on "race, color, religion, national
origin, or sex," does not "further the end of eradicating discrimination" in the jury
selection process against those enumerated classes.  Consideration of a person's race,
color, religion, national origin, or sex raises fundamental constitutional questions,
particularly in the context of a jury selection process.  Those who advocate against a rule
precluding use of such characteristics in jury selection bear a higher burden of
explanation than Justice Kelly has supplied.

Taylor, C.J., Corrigan, and Markman, JJ., concurred with Young, J.

Kelly, J. (dissenting).  I oppose the addition of subrule (F) to MCR 2.511.  All of the
public comment that we received urged a rejection of the amendment.  The Board of
Commissioners of the State Bar of Michigan pointed out that existing case law "adequately
speaks to the issue of discrimination during voir dire."  Challenges to jury composition, it
argued, should be addressed on a case-by-case basis. The amendment does not further the
end of eradicating discrimination from our civic institutions and does not prevent the
undermining of public confidence in the fairness of our system of justice.  The Michigan
Judges Association agreed that the change is unnecessary.  The Michigan Department of
Civil Rights, writing also for the Michigan Civil Rights Commission, believes the
amendment to be vague and ambiguous and one that will engender frequent legal challenges. 
Several lawyers, one with the Legal Aid & Defender Association in Detroit, opined that the
amendment places a hurdle before the right of many citizens to be judged by a jury of their
peers.  I am influenced by the public comment and, in light of it, 
    

I oppose the amendment as unnecessary because it adds no substantive value to the case law
already in existence.

     Cavanagh and Weaver, JJ., concurred with Kelly, J.