Articles

Originally published in The Hennepin Lawyer, September, 2000

Desperately Seeking Minnesotans - The Census in Minnesota Courts

Phillip J. Trobaugh
(email)
Mansfield, Tanick & Cohen, P.A.
1700 U. S. Bank Plaza South
Minneapolis, MN 55402
Tel: 612.339.4295
FAX: 612.339.3161

Thousands have joined and recently concluded service as foot soldiers in a temporary army of census takers,^[i] desperately seeking Minnesotans. For a variety of reasons, some among us were not initially counted for the 2000 Census through traditional means. Undaunted by disparate or dangerous locations, U.S. Census takers are on an eternal quest: to count us all individually, in person if need be, every ten years. The government’s will is not in doubt here. The decennial Census is vitally important; it is constitutionally mandated,^[ii] and the results of the Census impact our society both locally and nationally. Federal distribution and funding of state programs are tied to the statistical results, and the underreporting of groups and households can have a devastating impact on those not included.^[iii]

As the official method for gathering crucial figures on the population, the Census lends insight into whom we are as Minnesotans. A review of how the Census has been utilized and referenced in Minnesota Courts in the 1990s points to a continuation of this reliance, hopefully to bring about a more accurate representation of “Minnesotans” in the jury boxes and courtrooms across the State. A look at these cases also lends significant insight on how statistical evidence is presented and considered by the Courts.

Courts Count

The judiciary has often considered and turned to statistics of varying kinds to help guide its decision-making process.^[iv] Census references in particular abound in Minnesota cases; a recent survey of the keyword “census” in Westlaw’s Minnesota cases database turned up more than 100 total cases. Minnesota Courts, too, will most probably look to the various societal changes as outlined in the 2000 census, based on a review of how the Census was referenced in cases in the prior decade.

Minnesota Courts have most often substantively dealt with or cited to the Census when it considers the Sixth Amendment’s guarantee of a jury representing a cross-section of the community. This issue was dealt with in State v. Williams,^[v] a criminal drug case in which the Defendant challenged the jury venire on the basis that the jury was significantly underrepresented by African-Americans, and further arguing that this was a “systemic exclusion.”^[vi] The Defendant introduced 1990 Census data comparing the percentage of African-Americans in the County where she was charged (3.7%), with the percentage of African-Americans on jury venires in the same County over a period of relevant years (2%, 2.65% and 3% respectively).^[vii]

A prima facie showing of unfair jury pool representation must satisfy three criteria: a) the allegedly excluded group must be “distinctive” in the community; b) that this group was not fairly represented; and c) that the shortfall must be the result of “systemic” exclusion from the jury selection process.^[viii]

On appeal, the Minnesota Supreme Court struggled between two, competing statistical methods in determining whether the prima facie elements were satisfied: absolute disparity and comparative disparity. Absolute disparity dictates taking the percentage of the underrepresented group in the community at large, minus the percentage of that group’s representation on the jury pools – in this case, 3.7% minus 2%, for a result of 1.7% of absolute disparity.^[ix] As the Supreme Court noted, the resulting disparity figure must be “much higher than 1.7%,” according to precedential cases, in order to establish the second prong of the prima facie elements.^[x] The Court further rejected the absolute disparity method as too rigid.^[xi]

The Court then considered the “conditional disparity” test, which involves “dividing the absolute disparity by the population percentage of the cognizable group in the community.”^[xii] The result of dividing 1.7% with 3.7% is 46%. The Court rejected this too, saying that both tests “distort[ed] reality” in either direction.^[xiii] The Court took a middle position, holding that “courts should be free to use all statistical tools available. Most people who make judgments based on statistical analysis do not rely on just one statistical tool.”^[xiv] This edict has far reaching implications not just for jury selection and Sixth Amendment cases, but for anyone whose case is relying on statistical evidence. The lesson learned is that it is best not to depend too greatly on only one statistical method for establishing a point that relies on statistics.^[xv]

A recent Minnesota Court of Appeals decision also addressed the fair jury pool issue in State v. Lor, a criminal sexual conduct case involving an Asian-American Defendant.^[xvi] The Defendant introduced a demographic analysis of the County in which he was charged, as well as applicable 1990 census data for the same County, which showed that Asian-Americans constituted 0.7% of the population of the County in question.^[xvii] However, the Defendant apparently did not introduce statistics concerning how this group was represented in the County’s jury pool. The Court found that “the percentage of the population was too low to demonstrate absolute disparity,” and in any event, there was no evidence of “systemic exclusion,” the highest of the prima facie case’s hurdles.^[xviii] The Court presumably did not discuss comparative disparity, because it requires an absolute disparity figure in order to complete the calculation, and absolute disparity did not exist as a practical matter in this case.

The Census and the Sixth Amendment were also at issue in a Minnesota case before the Eighth Circuit Court of Appeals, in United States v. Warren.^[xix] In Warren, the Defendant made a similar argument as in Williams, based on census figures: that African-Americans made up 3% of the population in his judicial district, compared with the fact that African-Americans made up only 0.9% of the last seven relevant venire pools in this same district.^[xx] The Warren court, in its analysis, seemed to combine the second and third prima facie elements into one, and was unimpressed with the “scant record” presented by the Defendant.^[xxi] The Court wanted more than just “the numbers alone,” as it searched for some evidence that would perhaps show how the jury selection process itself was flawed.^[xxii] No discussion of statistical methods was made, but this decision reveals that while statistical evidence can look persuasive in the abstract, some courts will require additional evidence to establish the same point numbers seek to establish.

Conversely, simply alluding or speculating as to population figures will not satisfy the Court if no statistics are offered at all, which occurred to the Defendant in State v. Garrett.^[xxiii] The Defendant pointed out that there was a ratio of 26 white jury panel members to one African-American, without any reference to the Census, or any other population numbers or statistics to support his claim of a violation of equal protection.^[xxiv] This flaw, the Court remarked, “may be fatal.”^[xxv] These cases are significant for illustrating the principal of striking the right balance between statistics and methodologies, which is crucial to jury pool fairness claims as well as to other claims that rely on statistical proof.

Minnesota Courts have not been shy to cite to the Census on its own when making some larger point.^[xxvi] This is well illustrated in Prickett v. Circuit Science, Inc.,^[xxvii] a case involving reemployment insurance benefits on appeal. The facts involved a work shift change made by an employer with only three days notice given to an employee with daycare issues. The employee failed to timely report to work and was terminated; the employer argued that such a failure was misconduct. The Court of Appeals reversed a finding for the employer, which the Supreme Court affirmed.^[xxviii]

The Supreme Court appeared to be galvanized by the former employee’s daycare needs (especially in conjunction with the employer’s short notice about the new shift change). These daycare needs, the Court found, were real and substantial and to deny this “would be to ignore significant facts about the world today.”^[xxix] To support its position, the Court cited a 1990 Census report showing that “60% of children in Minnesota lived in families in which both parents worked outside the home. Another 9.3% lived in families with one working parent.”^[xxx] Population statistics and the census can readily show some aspects of the current nature of society.

Consensus Census

The unfortunate intersection of a budget shortfall for the judiciary, the addition of judicial slots, and the increase of vacancies has been widely reported.^[xxxi] With more Minnesotans adding to the population rolls, it is not surprising that there are more legal cases to handle. While Minnesota’s population has increased 9.1% over the past decade, the number of civil cases handled by the state’s judicial branch has increased 11.5% over the same time period.^[xxxii] Obviously, without the appropriate resources to handle such a caseload, the Courts will be less able to do its job: to quickly resolve disputes. The societal implications are vast and real.

The One-Percent Solution?

Minnesota’s total estimated 1999 population was expected to increase by about 50,000 people, or one percent, over 1998’s figures: from 4,726,411 to 4,775,508.^[xxxiii] Perhaps more surprising was the recent report that 10 of the fastest 15 growing counties in the Upper Midwest are in the Twin Cities metro area.^[xxxiv] This will no doubt continue to shift political and economic power to the metro area, posing considerable challenges for politicians and policymakers, as well as the judiciary. Unfortunately, even with this growth, Minnesota’s overall national population rank is expected to slip from 20th to 21st overall.^[xxxv] The Governor and the Mayors of many Minnesota cities have a vested interest in the Census results, as federal funding is directly tied to government programs and projects.^[xxxvi]

Census and Sensibility

Minnesota Courts have struggled with the use of Census information, especially in highly charged cases involving the fairness and the racial makeup of jury pools. Undoubtedly, the political debate will continue onward; the use of the Census information in these cases will almost certainly continue.^[xxxvii] Attorneys must be careful in how their statistics are presented, must make sure that they present more than one persuasive methodology for interpreting the statistics, and must make sure that the statistics are tied into all relevant comparisons. The Courts will continue to cite to the Census for general propositions illustrating how society appears in the present, and in a desire to be current with modern society. The 2000 Census will also be used as a tool in the debate about judicial administration in Minnesota.

Mr. Trobaugh is a Shareholder of Mansfield, Tanick & Cohen, P.A., and practices in the areas of Constitutional Law and general litigation. The author thanks Brian R. Dockendorf and Megan A. Blazina for their assistance with this article.