834 P.2d 439 (Okla. 1992), 79123, Naylor v. Petuskey

• Citation: 834 P.2d 439,1992 OK 88
• Date: 23 June 1992
• Docket Number: 79123.
• Parties: Richard E. NAYLOR, Petitioner, v. Thomas PETUSKEY, Court Clerk in and for the District Court of Oklahoma County, Oklahoma, Respondent.
• Court: Oklahoma Supreme Court

Page 439

834 P.2d 439 (Okla. 1992)

1992 OK 88

Richard E. NAYLOR, Petitioner,

v.

Thomas PETUSKEY, Court Clerk in and for the District Court

of Oklahoma County, Oklahoma, Respondent.

No. 79123.

Supreme Court of Oklahoma.

June 23, 1992.

Application to assume original jurisdiction and petition for writ of prohibition and mandamus directed to the Court Clerk of Oklahoma County, Oklahoma, prohibiting collection of multiple jury fees in a civil case for a single jury trial and directing the filing of the fifth motion to enter cause on jury trial docket without payment of additional jury fee.

APPLICATION TO ASSUME JURISDICTION GRANTED; WRIT OF PROHIBITION/MANDAMUS ISSUED.

James M. Levine, Oklahoma City, for petitioner.

Robert H. Macy, Dist. Atty. for Oklahoma County, Hugh M. Manning, Asst. Dist. Atty., Oklahoma City, for respondent.

Page 440

ALMA WILSON, Justice:

The issue in this original proceeding is whether the Court Clerk for the District Court of Oklahoma County, Oklahoma, may charge and collect the jury fee prescribed in 28 O.S.1991, § 152.1 more than one time before a jury trial is had in a pending action. This issue challenges the authority of a court clerk to require a party litigant to pay the statutory jury fee as a prerequisite to filing another motion to enter the cause on the jury docket where the cause has been previously docketed for jury trial and then stricken prior to commencement of the jury selection process. This novel controversy has statewide implications and accordingly is a matter of publici juris. ¹ Therefore, we assume original jurisdiction.

Petitioner (Naylor) is the plaintiff in a negligence action pending in the district court of Oklahoma County. Naylor is entitled to a trial by jury in this pending action. On March 26, 1985, Naylor filed a motion to enter the cause on the jury docket and paid the statutory jury fee in the amount of $30.00. The cause was set on the jury docket. Subsequently, interlocutory orders relating to discovery issues were appealed. The cause was stricken from the jury docket. During the pendency of the appeal from the interlocutory orders, Naylor filed the first amended motion to enter the cause on the jury docket and again paid the $30.00 jury fee on September 23, 1985; and, he filed second and third amended motions without payment of the jury fees. Upon each amended motion to enter, the cause was set on the jury docket and then stricken therefrom. Upon final disposition of the appeal from the interlocutory orders, Naylor filed a fourth amended motion to enter the cause on the jury docket. The office of the Court Clerk refused to accept this fourth amended motion without the payment of the statutory jury fee, now in the amount of $50.00.

In this original action, Naylor seeks a writ of prohibition and mandamus to the Court Clerk of Oklahoma County, Oklahoma, prohibiting collections of multiple jury fees in a civil case for a single jury trial and directing the filing of his fifth motion to enter cause on jury trial docket without payment of additional jury fee. Naylor argues that he has never derived any benefit from the initial jury fee paid; that under the circumstances, additional jury fees are a windfall to the court; and, that multiple jury fees for a single jury trial has a chilling effect upon a litigant's access to the courts. ² In response, the Court Clerk takes the position that the jury fee is a filing fee, arguing that the plain words of the statute require payment of a fee for each motion requesting a jury trial; and, that multiple jury fees can be avoided by striking the cause from the jury docket with the notation "to be reset." ³

The issue presented is one of statutory construction. The cardinal rule of statutory construction is to ascertain and give effect to the legislative intent. Humphrey v. Denney, 757 P.2d 833 (Okla.1988). The words of a statute will be given a plain and ordinary meaning, unless contrary to

Page 441

the purpose and intent of the statute when considered as a whole. Keck v. Oklahoma Tax Commission, 188 Okl. 257, 108 P.2d 162 (1940). Legislative purpose and intent may be ascertained from the language in the title to a legislative enactment. Independent School District No. 89 of Oklahoma County v. Oklahoma City Federation of Teachers, Local 2309 of American Federation of Teachers, 612 P.2d 719 (Okla.1980). Any doubt as to purpose or intent of a statute may be resolved by resort to other statutes relating to the same subject matter. In re Durant National Bank, 107 Okl. 65, 230 P. 712 (1924).

The jury fee at issue is imposed by 28 O.S.1991, § 152.1 ⁴, which states, in part:

In civil cases other than those in the small claims division, the court clerk shall collect and deposit in the court fund the following charges in addition to the flat fee:

1. For posting notices and filing certificates required by statute ........................... $20.00 2. For mailing by any type of mail writs, warrants, orders, process, command, or notice for each person ............ $ 5.00 except ordinary mailing of first-class mail in probate cases, for each case .............. $ 5.00 3. For the actual cost of all postage in each case in excess of ................................ $ 5.00 4. For serving or endeavoring...