The Supreme Court might be aiming for an amicable front despite differences in Covid-19 risk tolerances among the justices, but at least one trial court judge is far less happy to suffer those he deems pandemic fools.
After counsel for the defendant—Progressive Select Insurance Co.—objected to the exclusion of unvaccinated jurors, U.S. District Court for the Southern District of Florida Judge Robert N. Scola Jr. canceled the parties’ February trial.
In doing so, he chastised the small fraction of the Miami-Dade community who have refused Covid-19 vaccines.
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“It is the Court’s belief that the vast majority of the unvaccinated adults are uninformed and irrational, or—less charitably—selfish and unpatriotic,” Scola wrote.
Scola said the court wouldn’t expose potentially vulnerable witnesses and jurors to Covid-19 infection risks, “particularly when those risks are heightened by the Omicron variant.”
Scola said that although he didn’t believe that excluding unvaccinated prospective jurors in the middle of a pandemic was “legally impermissible,” at least under the circumstances, he said he didn’t want to “create an appellate issue.”
The trial, over a claim for uninsured motorist benefits, is now set for May.
Scola’s not alone in thinking the exclusion permissible.
In United States v. Moses, the U.S. District Court for the Western District of New York rejected the government’s argument that striking all unvaccinated people from the jury pool would violate the constitutional fair cross-section requirement and the Jury Selection and Service Act.
The unvaccinated aren’t a “distinctive group” under Duren v. Missouri, which established the test for cross-section claims under the JSSA, the court said.
The government argued that vaccination status is “a proxy for ‘citizens of a particular point of view,’” but the fair cross-section requirement isn’t concerned with “mere shared attitudes about a given topic,” the court said.
And even if it were, the government failed to offer any evidence whatsoever to support its ideological proxy argument, the order said.
The government also argued that vaccine status could serve as a proxy for race but “provided no meaningful analysis of that issue, merely citing to national and state data tracking websites that it concedes are incomplete,” the court said.
The U.S. District Court for the Southern District of New York similarly overruled an objection by the plaintiff in a retaliatory termination lawsuit against King & Spalding LLP.
The court there emphasized the potential for unvaccinated jurors to disrupt the proceedings and added that the JSSA challenge would have failed under another element of Duren.
Duren requires “systemic exclusion,” which requires a showing that “the underrepresentation is due to the system of jury selection itself, rather than external forces,” Judge Valerie E. Caproni wrote.
“The COVID-19 pandemic and the effects that it has had on in-person proceedings are external forces for the purposes of Duren,” Caproni said.
This feature appeared in this week’s Bloomberg Law—Litigation newsletter. Bloomberg Law subscribers may sign up here.