The constitutions of both the United States and the State of California forbid the use of peremptory challenges to exclude potential jurors based on their membership in a “cognizable group.” This is defined as “an identifiable group distinguished on racial, religious, ethnic, or similar grounds.” The definition of “similar grounds” however, is not always clear. In a recent medical malpractice case, an attorney dismissed two potential jurors based on the disabilities of their family members. An appellate court found these dismissals impermissible under California law.

A unanimous decision by a three-judge panel from District Seven of the Second District of California Court of Appeal, written by Justice Gail Ruderman Feuer on November 7, held that former Los Angeles Superior Court Judge Anthony J. Mohn erred when he denied a Batson-Wheeler motion regarding six potential Hispanic jurors in the case of Unzueta v. Akopyan. Feuer found that four of the potential jurors in the case were properly excluded due to nondiscriminatory reasons. But the exclusion of two others was based on claims that a fair review of the medical malpractice case was not possible because each juror had a disabled family member.

A Batson-Wheeler motion comes from rulings in two cases, Batson v. Kentucky (1986) and People v. Wheeler (1978). The United States Supreme Court established a three-step process for courts to use to analyze whether objections to juror acceptance are racially discriminatory. First, all facts must be examined to see if they “give rise to an inference of discriminatory purpose.” Second, the party who is trying to strike the juror must provide a non-discriminatory reason(s) for the strike. Third, if a race-neutral reason is provided, the court must decide whether the party opposing the strike has proved racial discrimination.

This case concerns an appeal by plaintiff/appellant Zulma Unzueta that was entered in favor of Asmik Akopyan, M.D. after her Batson-Wheeler motions were denied. Feuer began her opinion by explaining that in 2000 and 2015, two California Assembly bills expanded the Supreme Court’s definition of cognizable groups to also include sex, ancestry, national origin, age, mental and physical disability, medical condition, genetic information, marital status or sexual orientation. They may also not be based on a potential juror’s “association with a person perceived to have one of these characteristics.”

Dr. Akopyan was the anesthesiologist during the birth of Zulma Unzueta’s child. Unzueta claims that the doctor negligently administered an epidural that resulted in the paralysis of her lower right leg. When the jury found for Akopyan, Unzueta asked for a new trial because Superior Court Judge Mohr did not follow all the procedures required under Batson-Wheeler. Mohr had denied Unzueta’s motion to have Akopyan’s attorneys provide justifications for the exclusion of four of the seven potential Hispanic jurors, four of whom had already been rejected for service and two of whom were alternates.

The plaintiff claimed the exclusions had been based on race. After she lost, she asked for a new trial, arguing that she had been denied equal protection under the U.S. Constitution and her California right to a trial by a jury drawn from a “representative cross-section of the community.” The trial court reversed the judgment and, based on transcripts, reviewed whether the second and third Batson-Wheeler procedures had been followed. Mohr said that if six of the peremptory challenges had been made for permissible reasons, the verdict was to be reinstated.

During oral arguments, Akopyan’s attorney explained that one of the potential jurors had been excluded because she had a disabled child, another because she had a disabled husband, and a third because his father had Parkinson’s and another family member had an instrument left in his body after surgery. The judge wondered if the disabilities of these relatives put the potential juror in “truly a protected class.” The doctor’s attorney said these jurors might be sympathetic to Unzueta because of their association with disabled family members. The trial court denied Unzueta’s Batson-Wheeler motions because he said all preemptory strikes had been justified. They were non-racial and acceptable.

Feuer concluded that Unzueta’s appeal was denied because having family members who were disabled are “prohibited bases for excusing jurors under California law.” They were “based on impermissible group bias under federal or California law.” She acknowledges that the California Supreme Court “has not directly addressed…the application of Batson/Wheeler to jurors based on their disability (or the disability of a family member.”

But she also noted that the protected bases for exclusion in California include people associated with others who have or are perceived to have any of the listed characteristics. She said, “These sweeping protections apply here” because two sections of California law, taken together, “prohibit use of peremptory challenges to excuse prospective jurors on the basis of a person with whom the juror is associated has a disability.”

She also reviewed the legislative history of California Assembly bills, Government Codes and Senate Rules Committee analyses that “support this construction.” She concluded, “The trial court was correct that the justifications were race-neutral, but the challenges were still discriminatory because

they were based on the disabilities of the prospective jurors’ family members. Accordingly, we reverse the judgment and order a new trial.”

This decision does not expand the cognizable groups that may not be excluded from their civic responsibility to serve on juries.