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October 28, 1993

TIMOTHY T. RYAN, JR., and GEORGE M. PRIMM, Plaintiffs,

The opinion of the court was delivered by: JOHN F. GRADY

 In this action brought under 42 U.S.C. § 1983, pro se plaintiffs George M. Primm and Timothy T. Ryan, Jr., both tried before juries in DuPage County, Illinois, *fn1" allege that defendants DuPage County Jury Commission and Daniel J. Amati (collectively "the jury commissioners") systematically excluded persons under 21 years of age, persons from lower income neighborhoods, non-Republicans, blacks and Hispanics from the county's jury pool. Defendants purportedly employed "an unknown computer program designed to 'target-out' these selected groups." Amended Complaint P 16. This conduct is alleged to have violated plaintiffs' Fifth, Sixth, Seventh, and Fourteenth Amendment rights, *fn2" as well as an Illinois statute providing that the jury pool shall include the names of licensed drivers of the county. See 705 ILCS 310/1 (S.H.A. 1992). Plaintiffs seek compensatory and punitive damages "in excess of $ 50,000.00."

 Before the court is the jury commissioners' motion to dismiss. The jury commissioners argue that (1) plaintiffs' allegations are argumentative and conclusory; (2) age does not constitute a "distinctive group" for purposes of the Sixth Amendment's fair cross-section requirement; (3) a violation of state law does not create a cause of action under 42 U.S.C. § 1983; (4) plaintiffs have waived their objections to the compositions of their juries; (5) defendants are entitled to quasi-judicial immunity. As explained below, the court denies the jury Commissioners' motion.


 In considering a motion to dismiss, the court must accept all facts alleged in the complaint as true and must draw all reasonable inferences from the pleadings in plaintiff's favor. See Gillman v. Burlington N. R.R. Co., 878 F.2d 1020, 1022 (7th Cir. 1989). Dismissal is appropriate "'only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Kunik v. Racine County, Wis., 946 F.2d 1574, 1579 (7th Cir. 1991) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984)).

 We easily dispose of the first three bases for dismissal. Contrary to the jury commissioners' contention, plaintiffs' allegations are not impermissibly argumentative or conclusory. As required by Federal Rule of Civil Procedure 8(a)(2), Ryan and Primm have provided "a short and plain statement of the claim." Their inability to explain the means by which defendants allegedly excluded certain groups from the jury pool -- information presumably accessible only through the discovery process -- does not warrant dismissal. Cf. Leatherman v. Tarrant County Narcotics Unit, 122 L. Ed. 2d 517, 113 S. Ct. 1160 (1993) (refusing to apply a heightened pleading standard to a § 1983 action against a municipality). Moreover, while the jury Commissioners are correct that persons between the ages of 18 and 21 do not comprise a distinct group for purposes of the Sixth Amendment's fair cross-section requirement, see Davis v. Greer, 675 F.2d 141, 146 (7th Cir.), cert. denied, 459 U.S. 975, 74 L. Ed. 2d 289, 103 S. Ct. 310 (1982); Silagy v. Peters, 905 F.2d 986, 1010-11 (7th Cir. 1990), cert. denied, 498 U.S. 1110, 111 S. Ct. 1024, 112 L. Ed. 2d 1106 (1991), plaintiffs do allege the exclusion of distinct groups -- racial minorities -- from the venire. Finally, although a violation of state law is not cognizable under § 1983, see Archie v. City of Racine, 847 F.2d 1211, 1216 (7th Cir. 1988), cert. denied, 489 U.S. 1065, 103 L. Ed. 2d 809, 109 S. Ct. 1338 (1989), we construe plaintiffs' state law claim as pendent to the § 1983 claim for violation of the Sixth Amendment.

 Waiver of the Jury Pool Challenges

 Under Illinois law, "any objection to the manner in which a jury panel has been selected or drawn shall be raised by a [written] motion to discharge the jury panel prior to voir dire examination." 725 ILCS 5/114-3(a). *fn3" In Francis v. Henderson, 425 U.S. 536, 48 L. Ed. 2d 149, 96 S. Ct. 1708 (1976), the Supreme Court held that a criminal defendant's failure to follow a similar state rule prescribing the manner of challenging the jury pool barred a subsequent habeas petition based on the fair cross-section requirement, absent a showing of cause and prejudice. The decision in Francis was guided by principles of comity and federalism: "'the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, [must] always [endeavor] to do so in ways that will not unduly interfere with the legitimate activities of the States.'" Francis, 425 U.S. at 541-42 (quoting Younger v. Harris, 401 U.S. 37, 44, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971)). Relying on Francis, the jury commissioners maintain that because Ryan and Primm failed to make written motions challenging the jury pool before voir dire they have waived their Sixth Amendment objections.

 Francis is inapposite because this is not a habeas petition. Ryan and Primm, rather than directly challenging their convictions, seek damages for the jury commissioners' alleged conduct in compiling an unrepresentative jury pool. See Haring v. Prosise, 462 U.S. 306, 76 L. Ed. 2d 595, 103 S. Ct. 2368 (1983) (a prisoner who pled guilty and was convicted may still bring a § 1983 damages action against police officers whose conduct contributed to his conviction). *fn4" Because the relief they seek is not akin to that provided by the habeas statute, and because § 1983 -- unlike the habeas statute -- has no exhaustion requirement, Ryan and Primm may bring this damages action in federal court even though they did not pursue state remedies. See Smith v. Springer, 859 F.2d 31, 34 (7th Cir. 1988); Viens v. Daniels, 871 F.2d 1328, 1331 (7th Cir. 1989). *fn5"

 Quasi-Judicial Immunity

 "Auxiliary judicial personnel who perform functions at once integral to the judicial process and nonmechanical [or discretionary] are entitled to absolute immunity from damages liability for acts performed in the discharge of those functions, just as judges are." Scruggs v. Moellering, 870 F.2d 376, 377 (7th Cir. 1989), cert. denied, 493 U.S. 956, 107 L. Ed. 2d 357, 110 S. Ct. 371 (1990). The Supreme Court recently explained why quasi-judicial immunity applies only to nonmechanical or discretionary acts, rather than ministerial ones:

The doctrine of judicial immunity is supported by a long-settled understanding that the independent and impartial exercise of judgment vital to the judiciary might be impaired by exposure to potential damages liability. Accordingly, the "touchstone" for the doctrine's applicability has been "performance of the function of resolving disputes between parties, or of authoritatively adjudicating private rights." When judicial immunity is extended to officials other than judges, it is because their judgments are "functionally comparable" to those of judges -- that is, because they, too, "exercise a discretionary judgment" as a part of their function. *fn6"

 Antoine v. Byers & Anderson, Inc., 124 L. Ed. 2d 391, 113 S. Ct. 2167, 2171 (1993) (citations omitted). Applying this standard, the Court held that a court reporter, who had delayed an appeal of a bank robbery conviction by failing to provide the criminal defendant with a trial transcript, was not entitled to quasi-judicial immunity. Quasi-judicial immunity did not apply, even though the court reporter is integral to the judicial process, because the job of recording verbatim court proceedings involves no discretion.

 Similarly, in light of certain provisions of the Illinois Jury Commission Act, 705 ILCS 310 et seq., the Dupage County jury commissioners do not exercise discretion in compiling the jury pool. In a county with a population of less than three million, *fn7" "the jury commissioners upon entering upon the duties of their office, and each year thereafter, shall prepare a list of all Illinois driver's license holders and all registered voters of the county to be known as the jury list." 705 ILCS 310/1. The active or periodic jury lists "shall be prepared by selecting every twentieth name, or other whole number rate necessary to obtain the number required . . . from the general jury list." 705 ILCS 310/8. *fn8" ...

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