COMMONWEALTH vs. RICARDO ACEN, JR. COMMONWEALTH vs. ALBERTO PENABRIEL.

LYNCH, J. These appeals challenge the requirements of G. L. c. 234A, Section 4 (1984 ed.), that jurors speak and understand English and that a jury be composed wholly of citizens of the United States. The defendants also challenge the notice to prospective jurors on the ground that that notice deprived the defendants of their right to a fair trial. [Note 1]

The defendants' motions to dismiss raising these issues were denied. [Note 2] The defendant Acen was tried and convicted on two indictments charging distribution of cocaine, and the defendant Penabriel was tried and convicted of attempted robbery (unarmed). The appeals were consolidated for purposes of briefing and oral argument in the Appeals Court. We granted Penabriel's application for direct appellate review and transferred the Acen case to this court on our own motion. We affirm the judgments of conviction.

1. Trial by jury de medietate linguae. Article 12 of the Massachusetts Declaration of Rights entitles the defendants to "judgment of [their] peers, or [by] the law of the land." The

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defendants argue that art. 12 affords them the right to a trial by jury de medietate linguae [Note 3] and therefore that the statutory requirements of citizenship and command of English are unconstitutional. [Note 4]

Article 12 is directly drawn from Magna Charta, c. 39, which reads [Note 5] that "no freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed or exiled, or other wise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land." Whitcomb's Case, 120 Mass. 118, 120 (1876) (Gray, C.J.). See Jones v. Robbins, 8 Gray 329, 342-343 (1857). To say that art. 12 is derived from Magna Charta, however, is not to say that our Constitution incorporates the precise rights and privileges imposed upon King John by the nobles at Runnymede. Were that the case, judgment by one's peers would be an impossible attainment in our more egalitarian society, since the term "peer" at the time of Magna Charta did not refer to all Englishmen. [Note 6] Rather

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we look at the words of art. 12 not "as a newly invented phrase, first used by the makers of our constitution; but we are to look at it as the adoption of one of the great securities of private right, handed down to us among the liberties and privileges which our ancestors enjoyed at the time of their emigration, and claimed to hold and retain as their birthright." Jones v. Robbins, supra at 342. Thus from Magna Charta did we receive the great fundamental principles of due process and trial by jury. See Rochin v. California, 342 U.S. 165, 168-172 (1952); Davidson v. New Orleans, 96 U.S. 97, 101-102 (1877); Thompson v. Utah, 170 U.S. 343, 347-348 (1898); Jones v. Robbins, supra at 342-343. Whatever else may be said of a jury de medietate linguae, its relative obscurity alone demonstrates it is not among those great fundamental principles. It is also clear that this form of trial was not derived from Magna Charta.

"The jury de medietate linguae, anciently allowed in England for the trial of an alien, was expressly authorized by statute . . . ." Ex parte Virginia, 100 U.S. 339, 369 (1879) (Field, J., dissenting). Justice Field referred, implicitly, to 28 Edw. Ill, c. 13 (1354) which provided the privilege of a trial by jury de medietate linguae to all aliens. [Note 7] It is clear, however, that although 1353 is considered the traditional date of the inception of such a privilege, its lineage is considerably older. [Note 8] The

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practice endured throughout some 500 years until finally repealed by 33 Vict. c. 14 (1870). [Note 9] The statutory right to trial by jury de medietate linguae was therefore an infrequently used part of the common law of England, around the time of the formation of this Commonwealth. See Respublica v. Mesca, 1 U.S. (1 Dall.) 73 (Pa. 1783); State v. Antonio, 11 N.C. 200 (1825); People v. McLean, 2 Johns. 381 (N.Y. Sup. Ct. 1807) (citing English trials by jury de medietate linguae).

Some early cases from other American jurisdictions recognized the right although no case since United States v. Wood, 299 U.S. 123, 145 (1936) (which held in dictum that the "ancient rule" of trial by jury de medietate linguae "no longer obtains" under the Sixth Amendment), has acknowledged its existence. See Republica v. Mesca, supra; People v. McLean, supra; United States v. Cartacho, 25 F. Cas. 312 (C.C.D. Va. 1823) (No. 14,738); United States v. Carnot, 25 F. Cas. 297 (C.C.D.C. 1824) (No. 14,726). See also LaRue, A Jury of One's Peers, 33 Wash. & Lee L. Rev. 841, 850 & n.29 (1976). Cf. 3 W. Blackstone, Commentaries *360-361. Even where the right has been found to exist, some jurisdictions have limited its applicability. See State v. Antonio, supra. Cf. Richards v. Commonwealth, 38 Va. (11 Leigh) 690 (1841) (use of trial by jury de medietate linguae held discretionary). See also Respublica v. Mesca, supra at 75. [Note 10] No modern court has found the right to be of constitutional magnitude, and we decline to do so here. Even if we assume that the right was adopted as part of the common law of Massachusetts [Note 11] (Part

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II, c. 6, art. 6, of the Massachusetts Constitution) and has not fallen into desuetude [Note 12] or lapsed for lack of applicability to current conditions, the Legislature could preempt and abrogate the common law rule by G. L. c. 234A, Section 4. [Note 13]

2. Claims under art. 12. In the alternative, the defendants rely on our decision in Commonwealth v. Aponte, 391 Mass. 494, 507 (1984), for the proposition that a "defendant is constitutionally entitled to a jury selection process free of discrimination against his grouping in the community." See Commonwealth v. Soares, 377 Mass. 461, 478, cert. denied, 444 U.S. 881 (1979), quoting Commonwealth v. Rodriquez, 364 Mass. 87, 92 (1973). In order to prevail in such a claim a defendant must demonstrate that he is a member of a "protected class." Commonwealth v. Aponte, supra at 506-508. See Commonwealth v. Soares, supra at 486 ("particular, defined groupings in the community"). See also Commonwealth v. Bastarache, 382 Mass. 86, 101 (1980). The defendants assert that individuals

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who cannot speak English and noncitizens form discrete groups within the community deserving of art. 12 protection.

In Commonwealth v. Aponte, supra at 507, we stated that "[t]he groups which art. 12 protects and which cannot form the basis for juror exclusion are the same classes referred to in art. 1 of the Massachusetts Declaration of Rights." See Commonwealth v. Bastarache, supra at 101; Commonwealth v. Soares, supra at 486 n.29, 488-489. [Note 14] The defendants do not base their claim of discrimination on membership in any such class. Their art. 12 discrimination claims therefore cannot prevail.

3. The Federal law claims. In Taylor v. Louisiana, 419 U.S. 522, 526-531, 538 (1975), and Duren v. Missouri, 439 U.S. 357, 359 (1979), the United States Supreme Court held that a criminal defendant has the right, under the Sixth and Fourteenth Amendments to the United States Constitution, to "a petit jury selected from a fair-cross-section of the community." [Note 15] Duren v. Missouri, supra at 364, created a three-part test for establishing a prima facie violation of the fair cross section requirement of the Sixth Amendment: (1) the group must be a "distinctive" group in the community; (2) the venires must not fairly and reasonably represent the proportion of such persons in the community; and (3) such underrepresentation must result from systematic exclusion of the group when juries are selected. The showing of a prima facie violation of the fair-cross-section requirement does not end the inquiry: the State may rebut the prima facie case, if "a significant state interest" is "manifestly and primarily advanced by those aspects of the jury-selection process . . . that result in the disproportionate exclusion of a distinctive group." Duren v. Missouri, supra

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at 367-368. [Note 16] The defendants' challenges fail under Duren and Taylor.

a. The non-English speaking requirement. In acknowledging the existence of the fair-cross-section requirement, the Court pointed out in Taylor, supra at 538, that the States retain "broad discretion" and "remain free to prescribe relevant qualifications." Cf. Commonwealth v. Brown, 121 Mass. 69, 78 (1876). It is unquestionable that an ability to speak English is a relevant and important qualification for jurors. No court has ever held that "non-English speaking persons" form a distinct or protected class. Cf. United States v. Valentine, 288 F. Supp. 957, 962-966 (D.P.R. 1968). In fact, the weight of authority is to the contrary. In United States v. Armsbury, 408 F. Supp. 1130, 1135 (D. Or. 1976), the court held that under the Sixth Amendment and the Jury Selection and Service Act of 1968 (28 U.S.C. Sections 1861 et seq.): "Groups based solely on language, residency, or citizenship are not cognizable." The earlier case of United States v. Mirabal Carrion, 140 F. Supp. 226, 230-231 (D.P.R. 1956), likewise found no exclusion of a "cohesive or representative group" under a Federal grand jury requirement, 48 U.S.C. Section 867 (1982), which excluded non-English speaking persons from the grand jury list.

In Commonwealth v. Olivo, 369 Mass. 62, 72 (1975), we held that those who are unable to read English are not a suspect class under the equal protection clause. That reasoning applies to the Sixth Amendment as well. [Note 17] It remains true that "a group might constitute a `distinctive' group in the community for Sixth Amendment purposes but not [be] an `identifiable' group for equal protection purposes" because of the broader scope

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of Sixth Amendment protections. See Commonwealth v. Bastarache, 382 Mass. 86, 97 (1980). But under both the equal protection clause and the Sixth Amendment, the policy favoring an exclusion of non-English speaking persons is the same. "English is the language of this country. This conception is fundamental in the administration of all public affairs." Conners v. Lowell, 209 Mass. 111, 119 (1911). See Commonwealth v. Olivo, supra at 72-73.

Even if we assumed, arguendo, that non-English speaking persons were a "distinct" class, there would be no doubt that a significant interest would be "manifestly and primarily" advanced by such an exclusion. [Note 18] The courts that have considered the problem have found that the requirement that conduct of judicial affairs be in English is both reasonable and important. See United States v. Benmuhar, 658 F.2d 14, 19-20 (1st Cir. 1981); Miranda v. United States, 255 F.2d 9, 16-17 (1st Cir. 1958); United States v. Mirabal Carrion, supra. As the United States District Court for the District of Puerto Rico announced in United States v. Valentine, supra at 964, "it is difficult to conceive how this court could remain a viable part of the federal judicial system if proceedings here were conducted in Spanish." "In any other district court, the contention would be too patently frivolous to require an answer." Id. at 962. As we noted in Olivo, supra at 73, "[t]his is not an officially multilingual country," and we take notice of the fact that English is and has been the primary language of the Commonwealth since its inception.

b. Noncitizenship. In Carter v. Jury Comm'n of Greene County, 396 U.S. 320, 332 (1970), the Supreme Court stated in dictum that "States remain free to confine the selection [of jurors] to citizens." The courts that have considered that issue have been in accord. United States v. Gordon-Nikkar, 518 F.2d 972, 976-977 (5th Cir. 1975). United States v. Armsbury, supra at 1135. Perkins v. Smith, 370 F. Supp. 134, 138

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(D. Md. 1974), aff'd, 426 U.S. 917 (1976). Rubio v. Superior Court, 24 Cal. 3d 93, 101 (1979). We agree, and find G. L. c. 234A withstands the constitutional challenges raised here under both the Sixth Amendment and the equal protection clause.

For purposes of the equal protection clause it is settled that most classifications based on alienage are inherently suspect and subject to close judicial scrutiny. [Note 19] Bernal v. Fainter, 467 U.S. 216, 219-220 & n.5 (1984). In re Griffiths, 413 U.S. 717, 721 (1973). Sugarman v. Dougall, 413 U.S. 634, 642 (1973). Graham v. Richardson, 403 U.S. 365, 372 (1971). However, an exception to that rule exists for "political function[s]." Bernal v. Fainter, supra at 220. See Foley v. Connelie, 435 U.S. 291, 297 (1978); Ambach v. Norwick, 441 U.S. 68, 78-79 (1979); Cabell v. Chavez-Salido, 454 U.S. 432, 439-441 (1982). Laws which "exclude aliens from positions intimately related to the process of democratic self-government," are not subject to strict scrutiny. Bernal v. Fainter, supra at 220.

Although the exception is "narrow," Bernal v. Fainter, supra, the Court has found police officers, public school teachers, and probation officers to be so related. Id. at 220. Foley v. Connelie, supra. Ambach v. Norwick, supra. Cabell v. Chavez-Salido, supra. In Foley, supra at 296, the Court stated in dictum that a State may deny aliens the right to vote or to run for office "for these lie at the heart of our political institutions . . . [and] [s]imilar considerations support a legislative determination to exclude aliens from jury service." Jury service clearly lies at the heart of Anglo-Saxon democratic self-government and falls within the Bernal political function exception. See Perkins v. Smith, supra at 138.

Even though minimum scrutiny is all that is required in this case, G. L. c. 234A could withstand even the heightened scrutiny imposed by the fair-cross-section requirement of the

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Sixth and Fourteenth Amendments. Both Perkins and Gordon-Nikkar upheld similar statutes under strict scrutiny analysis. That rationale is at once compelling and obvious: jury service demands loyalty to this country and its laws as well as knowledge of and familiarity with its customs. United States v. Gordon-Nikkar, supra. Perkins v. Smith, supra. See United States v. Armsbury, supra at 1134. Resident aliens often have allegiance to this Commonwealth and the country, and could be competent to sit on juries. See Perkins, supra at 138. Yet it is undeniable that some aliens do not possess these requisite attributes and jury service is too critical to the just operation of the court system to place it in the hands of those who are not able to carry out the duties of such service. The naturalization process requires citizens to demonstrate loyalty and competence for the duties of citizenship generally, and any other test of loyalty and competence would either be ineffective or would "undercut the efficiency and significance of existing procedures." Id.

4. The notice of juror qualification requirements. The defendants claim prejudice in the mailing of the juror qualification notice. On this issue they do not rely on the equal protection clause or the fair-cross-section requirement, but instead assert a denial of "fundamental fairness." [Note 20]

The basis of the defendants' claim is their assertion that the notice prejudices the jury pool by suggesting that noncitizens and non-English speaking persons are "unqualified" to be jurors in some pejorative sense, which thereby prejudices defendants who are in those groups. The notice does juxtapose various disqualifications which might carry such overtones, e.g., minority, previous criminality, or insanity. But the notion that such a notice to potential jurors would so prejudice them against those classes which are excluded from service as to deprive them of a fair trial is unfounded. Jurors presumably will understand

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that minors or individuals over age seventy, for example, are not to be judged in their trials by virtue of their affiliation with their groups. While it might be helpful if the notice pointed out that groups disqualified for jury service are not unequal before the law in other respects, it was not error to omit such a provision.

The motions to dismiss were denied correctly.

Judgments affirmed.

APPENDIX.

NOTICE OF JUROR QUALIFICATION REQUIREMENTS (Mass. General Laws, Chapter 234A)

Any resident of a country, or any inhabitant living in a county for more than 50% of the time, whether or not a registered voter, shall be qualified to serve as a grand or trial juror in the county unless:

1. Such person is not a citizen of the United States.

2. Such person is 70 years of age or older and chooses not to perform juror service.

3. Such person is under the age of 18 years.

4. Such person is not able to speak and understand the English language.

5. Such person has permanently moved from the county.

6. Such person lives outside of the county and does not intend to return at any time during the following year.

7. Such person has been convicted of a felony in the past 7 years, or is a defendant in any pending felony case, or is the custody of any correctional institute.

8. Such person has served as a grand or trial juror in any state or federal court within the current year or previous 3 calendar years, or the person is currently scheduled to perform juror service. A person has "served" if he has duly appeared in court able and willing to perform juror service whether or not he was placed on a trial.

9. Such person is incapable, by reason of a physical or mental disability, of rendering satisfactory juror service. Any person claiming this disqualification must submit a letter from a registered physician or accredited Christian Science practitioner stating the nature of the disability, and the physician or practitioner's opinion that such disability prevents the person from rendering satisfactory juror service. "In reaching such opinion, the physician shall apply the following guideline: a person shall be capable of rendering satisfactory juror service if such person is able to perform a sedentary job requiring close attention for six hours per

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day, with short work breaks in the morning and afternoon sessions, for three consecutive business days."

10. Such person is solely responsible for the daily care of a permanently disabled person living in the same household, and the performance of juror service would cause a substantial risk of injury to the health of the disabled person. Any person claiming this disqualification must submit a letter from a registered physician stating the name, address, and age of the disabled person, the nature of the daily care provided by the prospective juror, and the physician's opinion that the performance of juror service would cause a substantial risk of injury to the health of the disabled person.