Reynolds v. Beacon Well Services, Inc.

LAVENDER, Vice Chief Justice. We decide in this case the Legislature did not intend 20 O.S.1981, § 106.4 to be applicable to the proceeding where the general jury panel is qualified and excusáis are made. That proceeding is a part of the administrative impanelment process, rather than being a judicial proceeding within the contemplation of § 106.4. Further, there is no requirement that excusáis or exemptions from the general jury panel all be accomplished at any specific proceeding. Thus, in so far as appellant claims error under § 106.4, which provides that a refusal of a court to permit or require any statement to be taken down by a court reporter or transcribed after being taken down shall be deemed a denial of due process, his argument is without merit and [76] provides no basis for reversal of the jury verdict rendered against him.1 Appellant, Michael Christopher Reynolds (Reynolds) sued appellee, Beacon Well Services, Inc. (Beacon) in tort for damages allegedly arising from his premature birth. Reynolds claimed his pregnant mother, while her vehicle was at a stop, was rear-ended by a vehicle driven by a Beacon employee. Reynolds claims the accident caused his premature birth and certain physical and psychological problems associated with the prematurity.2 Some weeks before trial appellant filed a motion to have a court reporter take down the initial qualification and excusáis of the entire general jury panel.3 The chief judge of the judicial district denied the motion. On the day of trial appellant made a motion to quash the general jury panel because his request for a court reporter was denied. The trial court denied the motion. A petit jury was chosen, the matter was tried and verdict was rendered against appellant. He appealed claiming error in the denial of his motion to quash the general jury panel because his request to have a court reporter take down the qualifications and excusáis was denied. The Court of Appeals ruled against him and affirmed. They did not, however, reach the question of whether § 106.4 was even applicable, instead grounding decision on the view no prejudice was shown based on a review of the transcript of voir dire which they determined showed the jurors who actually heard appellant’s case were qualified. We granted certiorari and now hold § 106.4 is not applicable to the qualification and excusal proceeding for which appellant sought a court reporter.4 The parts of § 106.4 pertinent to our decision follow: (a) The court reporter shall make a full reporting by means of stenographic hand, steno-mask notes, or a combination thereof, of all proceedings, including the statements of counsel and the court and the evidence, in trials and other judicial proceedings to which he is assigned by the appointing judge unless excused by the judge who is trying the case with the consent of the parties to the action. A refusal of the court to permit or to require any statement to be taken down by the court reporter or transcribed after being taken down, upon the same being shown by affidavit or other direct and competent evidence, to the Su [77] preme Court, or other appellate court, shall constitute a denial of due process of law. In any trial, hearing or proceeding, the judge before whom the matter is being heard may, unless objection is made by a party or counsel, order the proceedings electronically recorded. A trial or proceedings may proceed without the necessity of a court reporter being present, unless there is objection by a party or counsel. (emphasis added) In Funnell v. Cannon, 577 P.2d 1287 (Okla.1978), we held the term judicial proceeding was not limited to evidentiary hearings, but the term included the statements of counsel and the court on a motion to strike, a general demurrer and a motion for bond reduction. We held, however, in Matter of Braddy, 611 P.2d 235 (Okla.1980), the term judicial proceeding within the contemplation of § 106.4 did not have unlimited scope and the term did not apply to administrative proceedings before the Department of Public Safety involving revocation of a driver’s license. Id. at 237. Only when the administrative matter was appealed to a district court did it become a judicial proceeding within the contemplation of § 106.4. Our job here is to determine whether the Legislature intended for the qualification and excusal proceeding to fall within the dictates of § 106.4. We believe it did not. In Funnell we defined a judicial proceeding within the contemplation of § 106.4 as any proceeding where judicial action is invoked and taken or any step taken in a court of justice in the prosecution or defense of an action. 577 P.2d at 1289. A judicial act is an act done by a member of the judicial department of government in construing the law or applying it to a particular set of facts presented for the determination of rights of the parties thereunder. State ex rel. Tharel v. Brd. of Com’rs of Creek County, 188 Okl. 184, 107 P.2d 542, 549 (1940). This latter definition of judicial act is consistent with our reading of § 106.4 which speaks in terms of the court reporter taking down certain matters unless excused by the judge trying the case with the consent of the parties to the action. In other words, the provision itself refers to a particular case rather than a proceeding like the impanelment of the general jury panel which is merely the process used to summon jurors who will eventually hear the various cases being tried at a specific jury term. Thus, in our view the term judicial proceeding as used in § 106.4 only applies to those proceedings particularly associated with a specific case rather than the qualification of the general jury panel or excusáis from the panel, which we hold are a part of the administrative impan-elment process embodied in 38 O.S.1981, §§ 18-29, as amended. A general overview of the initial impanelment process is necessary to show the administrative character of that process. No later than October 1st of each year the Commissioner of Public Safety provides the Administrative Director of the Courts (ADC) a list of persons residing in a particular county who are eighteen (18) years of age or older and hold valid driver’s licenses or a current identification license from the Department of Public Safety. 38 O.S.Supp. 1987, § 18.5 The ADC gives the list to the court clerks of the respective counties. Id. In November of each year, the sheriff (or a deputy), the secretary of the county election board (or a deputy) and the court clerk (or a deputy) meet at the courthouse to select from the list of qualified jurors for service in the district court for the ensuing year. Id. In 38 O.S.1981, § 18.1 the judge in charge of court administration may, by order, adopt a plan for the selection of qualified jurors for jury service with the aid of mechanical or electronic means and implement such plan upon approval by this Court. If a plan under § 18.1 has not been adopted the selection of jurors is accomplished through the jury wheel system. § 18.1(C). [78] Generally, the jury wheel system provides that the names and addresses of the qualified jurors from the list above are written on cards and placed in a circular hollow wheel or drum made of steel or iron which is constructed so as to revolve freely on its axle and big enough to freely mix the cards placed therein. 38 O.S.1981, § 19. The wheel is kept secure by two separate locks one each retained by the sheriff and the court clerk. Id. In each county the judges of the court determine approximately how many jurors are necessary for each two week jury term and they order the drawing of such number of jurors from the jury wheel. 38 O.S.1981, § 20. The appropriate number of jurors is drawn from the wheel in open court by the sheriff and court clerk under the directions of the chief judge of the district court. 38 O.S.Supp. 1982, § 21. Those persons whose names are drawn are notified by mail at least ten (10) days prior to the required time for them to report for jury service. 38 O.S. 1981, § 23.6 The general jury panel reports at the designated time for service and is under the general supervision of the presiding judge of the district. § 20. The jurors finally qualified must take an oath or affirmation as prescribed in 38 O.S.1985, § 20.1, which is administered by the chief judge of the district court, or during his' absence or disability, by some other judge assigned to the district court of the county. Id. The provisions in 38 O.S.1981, § 28 also provide that certain persons are not qualified to serve on juries, i.e. they are exempt from service. These include judges, sheriffs or their deputies, jailers or law enforcement officers (state or federal) having custody of prisoners, licensed attorneys engaged in the practice of law, persons convicted of a felony and not restored to their civil rights or legislators during session or when involved in state business. Id. Section 28 also provides that persons over the age of seventy (70) may be excused from service upon request, as well as persons where service would result in substantial hardship to the prospective juror. Id. Section 21 also grants to the judge handling the impanelment process the authority to excuse or discharge any person drawn and summoned as a juror, whenever, in his discretion, such action shall be deemed expedient. In the present case the chief judge of the district was the judge making the above determinations in regard to excu-sáis or exemptions from jury service. Our review of the above process convinces us it is administrative in nature, rather than judicial, as the latter term is used in § 106.4. Although we have never reached the issue, the United States Court of Appeals for the Second Circuit has squarely determined the impanelment process is administrative in nature. In United States v. Williams, 927 F.2d 95 (2nd Cir.1991) cert. denied — U.S. -, 112 S.Ct. 307, 116 L.Ed.2d 250 (1991), the Second Circuit, in ruling it was not error for a court clerk to excuse two (2) jurors from the general panel under the supervision of the district court prior to voir dire, recognized that the excusáis were merely a part of the administrative impanelment process. Id. at 96-97. Thus, there was no constitutional mandate forbidding the clerk from making the excu-sáis, rather than a district judge. Id. at 96. In so ruling Williams distinguished Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), where the Supreme Court held voir dire had to be conducted by a judge rather than a magistrate because voir dire is the jurors’ first introduction to the substantive factual and legal issues in a case and it differs from the general administrative impanelment process. Williams, 927 F.2d at 97. Although our statutory provisions as to excusáis from service on the general jury panel require the court to make the excu-sáis, while under the system in Williams the clerk was authorized to do so merely under supervision of the district court, this does not lessen the fact the process of qualifying the general jury panel and making excusáis from that body is administra [79] tive in character, rather than judicial. The process is one merely to select those jurors which will eventually hear the various cases, both criminal and civil, which may be set at a jury term, and it is not concerned with any particular case. We also note from review of §§ 18-29 there is nothing in the statutory scheme mandating that all exemptions or excusáis from service on the general jury panel must be made at one central proceeding. As a practical matter many exemptions or excusáis requested prior to the reporting date of prospective jurors may be made by personal visits to the courthouse, telephone or mail and, likewise, may be authorized'by the chief judge and then the decision transmitted to the summoned juror by telephone or mail or at the personal visit by a member of the court clerk’s office. Although not expressly so stated in Noland v. State, 550 P.2d 958 (Okla.Crim.App.1976), one or more of these methods appears to have been used where the court clerk executed the orders of the district court in excusing or exempting certain jurors by informing them of the court’s decision. Id. at 962. See also United States v. Evans, 526 F.2d 701, 704 (5th Cir.1976), cert. denied 429 U.S. 818, 97 S.Ct. 62, 50 L.Ed.2d 78 (1976), rehearing denied 429 U.S. 987, 97 S.Ct. 509, 50 L.Ed.2d 599 (1976) (persons excused from federal jury panel for reasons asserted in a phone call or personal visit to the clerk’s office). Although many excusáis may be made at the proceeding held after jurors not previously excused or exempted arrive at the jury assembly room and are there finally qualified and administered their oath or affirmation by the chief judge, we believe in the case of juror involvement it is not until voir dire examination that the selection process becomes a judicial proceeding within the meaning of § 106.4. Only at such time can it be said a particular case has become the focus of juror involvement at which time they are questioned by counsel and the judge trying the case to determine their fitness to act as jurors in a specific matter.7 [80] Accordingly, in that we hold § 106.4 was not applicable to the proceeding for which appellant requested a court reporter there is no basis upon which to reverse the jury verdict and judgment of the trial court rendered in this case. For the above reasons the opinion of the Court of Appeals is VACATED IN PART and the judgment of the trial court is AFFIRMED. HODGES, C.J., and HARGRAVE, SUMMERS and WATT, JJ„ concur. SIMMS, J., concur in part; dissent in part. OPALA, ALMA WILSON and KAUGER, JJ., dissent. Footnotes [1] We note appellant makes no challenge to the qualifications of any juror on the petit jury hearing his individual case. [2] The accident occurred in the 1960s. Reynolds, an adult, sued for himself. [3] The term general jury panel as we use it here is of legislative origin. It refers to the number of jurors that are determined by a court of record to be necessary for jury service in all the courts of record within a county for any particular jury term. 38 O.S.1981, § 20. Appellant’s request for a court reporter indicated the proceeding he wished to have taken down was to take place on May 2, 1988 at 8:00 a.m. in the Oklahoma County District Court jury assembly room before the chief judge. His trial was scheduled to begin the same day at 9:00 a.m. [4] The Court of Appeals also ruled adversely to appellant on his claim the trial court should have directed a verdict in his favor on the issue of negligence. The adverse decision by the Court of Appeals on this issue was not challenged in the petition for certiorari. The only issue raised by appellant in his petition for certiorari concerns the court reporter denial. No other issue is, thus, before us. Ford v. Ford, 766 P.2d 950, 952, f.n. 1 (Okla.1988) (the only issues properly tendered for our review are the issues presented in the petition for certiorari). We also note from discussions occurring immediately before trial between counsel and the trial judge it appears appellant was of the view district courts in Oklahoma may not have been properly carrying out their role in qualifying general jury panels because of certain legislative changes in the qualifications. Appellant raised no such issue on appeal or in the petition for certiorari and as we have already said in note 1, supra, he does not claim any juror on the petit jury hearing his case was unqualified. His sole claim is based on the denial of a court reporter which he asserts is mandated upon request under § 106.4. We, thus, need not concern ourselves with any other issue than that presented by the petition for certiorari. We do finally note, however, appellant, through his attorney, turned down an offer from the trial judge of an opportunity to take the deposition of the jury room clerk who presumably would have been present during the qualification and excusal proceeding and involved in other aspects of the general jury impanelment process. [5] Section 18 was amended in 1989 to add persons with a current identification license to the scheme. The change is not relevant to our discussion. The present statute may be found at 38 O.S.1991, § 18. [6] Section 23 was amended in 1988 in a manner not pertinent. The current provision may be found at 38 O.S.1991, § 23. [7] Contrary to the dissent of my colleague Justice Wilson, the majority opinion does not hold due process protections do not attach during the administrative impanelment process or pre-vozV dire. Such an issue is not before us, but instead whether 20 O.S.1981, § 106.4, as to having a court reporter take down judicial proceedings was meant by the Legislature to apply to the initial qualification and excusáis of the entire general jury panel. Had some allegation or minimal showing been made by appellant the impanelment process itself resulted in a tainted jury in this matter due process protections may indeed have been implicated here. However, no such allegation or showing has been made and as we noted in note 1, supra, appellant makes no challenge to the qualifications of any juror on the petit jury hearing his individual case. Further, the dissent mistakenly relies on the openness issue, which is also not before us here. As noted, appellant relies solely on a supposed violation of § 106.4. He raises no independent constitutional openness issue to have either the public or himself attend the initial qualification and excusal proceeding. In any event any reliance on Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) or Press-Enterprise Co. v. Sup. Ct. of Cali., 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984), is surely misplaced. Richmond held implicit in the 1st Amendment to the United States Constitution is a right in the public to attend criminal trials and absent an overriding interest articulated in findings, the trial of a criminal case must be open to the public. Press-Enterprise Co., ruled the guarantee of open criminal trials extends to voir-dire examination, which as noted in the text is the first event where it can be said a particular case has become the focus of juror involvement. Neither case remotely concerned the administrative impanelment process, a process so labeled by the United States Supreme Court in Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), when distinguishing it from voir dire. The dissent’s reliance on Kansas City Southern Railway Co. v. Norwood, 367 P.2d 722 (Okla.1961), is also misplaced. No one disputes a litigant to a case may challenge the administrative jury selection process. Norwood, the statutory scheme on selection of the general panel and numerous other cases make this quite clear. Norwood, however, concerned a challenge based on the acts or omissions of the county treasurer, assessor and sheriff, county clerk and court clerk in preparing an initial list of qualified jurors. The challenge concerned a situation dealing with the duties of these officers even before the general jury panel jurors arrive at the courthouse. Is the dissent saying a court reporter is statutorily required by § 106.4 to be present at every step of the administrative process? Surely not. As to the challenger of a general panel having the burden to show an irregularity of substance to quash the panel, this burden may be shown in many ways, one of which was offered to appellant here, to wit: taking the deposition of those involved. Appel [80] lant turned down an offer of the trial judge of an opportunity to take the deposition of the jury room clerk. See note 4, supra. Finally, the dissent’s argument the administrative impanelment process turns into a judicial proceeding the moment the members of the general panel take their oath ignores the practicalities of the situation and the statement in United States v. Williams, 927 F.2d 95 (2d Cir.1991), relying on Gomez, supra, that prior to voir dire, the jurors’ first introduction to the substantive factual and legal issues in a case, the impanelment process is administrative in character. The practicalities ignored are those cited in the text. Many excusáis from the general jury panel are done by the jury room clerk upon directions from the judge supervising the panel and, in fact, they are accomplished prior to the jurors even reporting for duty, by telephone or mail. The dissent wholly ignores these practicalities.