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Tuesday, August 16, 2011

Oregon Attorney General's Decision December 10, 1912: Women Can't Serve on Juries -- Historical Connections and a Few Loopholes

We've been discussing Portland's experimental all-female jury, whose members participated in a trial concerning a woman accused of keeping a house of prostitution on December 4, 1912. There was spectacle, speculation, and some important claims for women's fuller citizenship through this service.

The experimental jury may also have influenced the next policy decision about women and jury service in the state. As we've seen, the Oregonian reported on November 3, 1912, two days before the successful ballot measure for woman suffrage, "considerable opposition has developed to the suffrage amendment among voters who express themselves as being highly favorable to giving the women the ballot, but who are opposed to their being harassed with the onerous duties of the juror." Attorney General Andrew Crawford did not make a ruling at the time but he told the Oregonian that he had no doubt "but a law could be passed by the legislative assembly exempting women from jury duty and that such a law would be constitutional and not deny to all the equal protection of the laws."
In Attorney General Andrew M. Crawford's correspondence files (archival materials that the ever knowledgeable Austin Schulz helped me to locate this summer at the Oregon State Archives -- thank you, Austin!) backed with newspaper coverage we find additional information about the connections between the experimental jury and the subsequent decision. The AG decided that women were NOT eligible for jury service because of the successful woman suffrage ballot measure, yet provided two loopholes.

From the correspondence files we learn that on December 4, 1912, the very day of the experimental all-woman jury in Portland, J. D. Venator, the Deputy District Attorney for Lakeview, Oregon, in Lake County in the central part of the state, wrote to ask for the Attorney General's formal opinion "as to whether a woman is, under the new law, qualified to serve upon Juries, providing she has all other qualifications as required by law."

Crawford responded on December 10, referring to Section 990 of Lord's Oregon Laws that contained gendered language: "he" and "a male inhabitant" when referring to jury qualifications. Crawford concluded: "The recent amendment to the constitution [woman suffrage] did not change the status of women as far as citizenship is concerned. It only made them qualified electors, and did not in any way change their condition as far as jury service is concerned." Women, he said, could not serve on juries "until further legislation."

Newspaper coverage adds to the intrigue.

The Oregon Journal, which as we've seen was the most supportive of the Portland newspapers of jury service, reported that the opinion was "unexpected" and reprinted the decision.
"Women of State Not Eligible for Juries--Crawford," Oregon Journal, December 11, 1912, 1.

The Oregon Statesman of Salem indicated that the decision was by "common consent of counsel" for the AG's office. Both Attorney General Crawford and Assistant Attorney General DeLong were there for the briefing, it appears.

"Can't Serve On A Jury," Oregon Statesman, December 12, 1912, 1.

The Statesman's report also featured Attorney General Crawford holding open a few loopholes for women's jury service in spite of the ruling. "The opinion will have the effect of excluding all women from juries where a felony charge is involved," he said while "commenting on the opinion to newspapermen." But he said that he did not think "it will interfere with them serving as juries in civil cases" or misdemeanor cases. In these latter two cases jurisdiction could be waived by participants "and I see no reason why women should not serve on them, if is agreeable to the litigating parties."

In other state constitutions voting qualified persons for jury service (Nevada, 1914, Michigan 1918, Delaware, Indiana, Iowa, Kentucky, Ohio and Pennsylvania in 1920 with the federal woman suffrage amendment -- Burnita Shelton Matthews, "The Woman Juror," Woman Lawyer's Journal, 15 no 2. (April 1927): 15-16.) In other states, like in Oregon, the process was more complicated.

Did the hoopla over the experimental all-woman jury influence any of the advice counsel gave to the AG? Did they take a negative view as a result?

Could Crawford have overruled? And was he influenced by the all-female jury? In November he responded to those who were worried about women having "onerous" jury duty and said that he had no doubt that a law exempting women from jury service would be constitutional. But in explaining the decision on December 10 by "common consent of counsel" denying women full jury service he opened the door for women to serve in civil and misdemeanor cases. Did the all-female jury nudge him toward support? Was this as far as he could go given the constitution?

What followed was over thirty years of wrangling: a 1921 law for a "mixed jury" that was quickly amended. Until legislation in 1943, women could "opt out" of jury service because they were women. Some few women did serve on civil and misdemeanor cases in the years after 1912. But like most other states the concept of women's jury service in Oregon was highly contested.

I'm researching more about the rest of the story but will turn to some other topics for the next blog posts. Thanks for your attention to these accounts of Portland's first "experimental" all-woman jury.