Judge to decide if juror can be dismissed for not having COVID vaccine

Leading up to a billion-dollar legal malpractice trial, an Orange County judge was asked Wednesday if the vaccine status of potential jurors could be inquired about in questionnaires and if a potential juror could be dismissed if found to be unvaccinated.

During a status conference, attorneys preparing for a landmark legal malpractice trial set to begin next month, raised concerns about the new Delta COVID-19 variant, which according to the Centers for Disease Control and Prevention, is more easily transmissible and more deadly.

Defense attorney Brad Brian of Munger, Tolles & Olson LLP and plaintiffs' attorney Jennifer Keller of Keller Anderle asked Superior Court Judge William D. Claster if it was appropriate to ask potential jurors if they were vaccinated.

"Would the court consider, and is it appropriate to consider a question in the questionnaire that asks people if they've been vaccinated?" Brian asked.

"I think I would have to get input from the court management as to whether we can ask that question," Claster replied.

Represented by Keller Anderle, CashCall, a consumer lending company, claims Katten Muchin Rosenman LLP intentionally gave it bad business advice and admitted to doing so. CashCall seeks nearly a billion dollars in damages, claiming Katten partner Claudia Callaway knew it was illegal to build a nationwide consumer lending program but advised CashCall to do it anyway. CashCall, Inc. v. Katten Muchin Roseman LLP, 30-2017-00914968 (O.C. Sup. Ct., filed April 4, 2017).

The trial will be held at the Orange County Superior Court's Civil Complex Center in Santa Ana. Anyone fully vaccinated is not required to wear a mask when entering the building, but as with other courts throughout the state, no one is required to show proof of vaccination, according to court policy. Also, after a number of reported COVID-19 cases, the Harbor Justice Center in Newport Beach mandated on Tuesday that anyone, regardless of vaccination status, be masked upon entering.

With both Brian and Keller seemingly willing to stipulate that in light of the Delta variant, a potential juror could be dismissed if unvaccinated, Claster asked for more detail on how that would work.

"So the way to deal with it is asking jurors if they've been vaccinated, and if they say no, then you would both agree that they shouldn't be on the jury just because of the risk?" Claster asked.

Brian said his short answer is, "I don't know," but he would have an answer by the next trial readiness conference on July 31.

Superior courts in Orange, San Diego, San Bernardino and Santa Barbara counties all replied to inquiries Wednesday regarding their policy concerning vaccination questions in jury questionnaires, and all said no existing administrative order specifically addressed the issue.

Los Angeles attorney Ryan McCarl of Rushing McCarl LLP said based on the California Constitution and Civil Procedure Code 203, judges cannot dismiss a juror because he or she is unvaccinated, as far as he could tell.

Code 203 states: "Challenges for general disqualification may be taken on one or both of the following grounds, and for no other: (a) A want of any of the qualifications prescribed by this code to render a person competent as a juror and (b) The existence of any incapacity which satisfies the court that the challenged person is incapable of performing the duties of a juror in the particular action without prejudice to the substantial rights of the challenging party."

Neither of these subsections "would provide grounds for challenging a juror based on vaccination status," McCarl said, "unless an argument could be made that the presence of someone unvaccinated is likely to prejudice the challenging party's substantial rights."

However, Lewis & Clark Law School professor William Funk said a question regarding a potential juror's vaccination status would be better asked not on voir dire but on qualifying for the jury pool itself.

"Could a judicial jurisdiction excuse from the jury pool any person suffering symptoms of COVID? I think so," Funk said. "I don't see that as different from excusing from the jury pool any person who has not been vaxed."

"Both questions would relate to the person's medical situation, but both would be based on protecting the integrity of any given jury," he continued. "Moreover, having non-vaxed persons sitting in the jury pool room itself potentially exposes other potential jurors. Asking the question only on voir dire, however, enables the discrimination to be based not on protecting the health of all but perhaps on the presumed ideology of the person who avoided the vaccine."