Barzellone v. Presley

Decision Date29 November 2005
Docket NumberNo. 102427.,102427.
Citation2005 OK 86,126 P.3d 588
PartiesTIMOTHY M. BARZELLONE, on behalf of himself and all others similarly situated, Plaintiff/Appellant, v. PATRICIA PRESLEY, in her capacity as the Oklahoma County Court Clerk, Defendant/Appellee.
CourtOklahoma Supreme Court

Appeal from the District Court of Oklahoma County.

¶ 0 The plaintiff/appellant, Timothy M Barzellone, filed a class action lawsuit challenging the constitutionality of the $349.00 jury fee imposed by 28 O.S. Supp. 2004 § 152.1(A)(7). Barzellone and the defendant/appellee, Patricia Presley (court clerk), each filed motions for summary judgment. The trial court determined that the statute was constitutional and granted summary judgment in favor of the court clerk. We hold that: 1) the collection of jury fees, as a prerequisite to accepting the first motion to enter for filing and docketing in a pending action, is constitutional under art. 2, §§ 6 and 19 of the Oklahoma Constitution; 2) the amount of the jury fee imposed by 28 O.S. Supp. 2004 § 152.1(A)(7), $349.00, is reasonable when considered with the minimum average costs of providing either six or twelve-person juries; and 3) if jury services are not utilized, the $349.00 jury fee collected pursuant to 28 O.S. Supp. 2004 §152.1(A)(7) is not refundable.

AFFIRMED.

David L. Thomas, Oklahoma City, Oklahoma, for plaintiff/appellant.

Richard N. Mann, Assistant District Attorney, Oklahoma City, Oklahoma, Timothy E. Rhodes, Oklahoma County Court Clerk's Office, Oklahoma City, OK, for defendant/appellee.

Kenneth G. Cole, Burch & George, P.C., Oklahoma City, OK, for amicus curiae, Oklahoma Trial Lawyers Association.

WATT, C.J.

¶ 1 Three issues are presented on appeal. The first is whether the imposition of a jury fee violates the Okla. Const. art. 2, § 191 providing that the right to jury trial shall be and remain inviolate or the guarantee of access to courts found in the Okla. Const. art. 2, § 6.2 If a jury fee is constitutionally permissible, we are asked whether the $349.00 fee provided by 28 O.S. Supp. 2004 § 152.1(A)(7)3 is excessive. Finally, we must determine whether the $349.00 jury fee imposed is refundable if no jury is called.

¶ 2 We determine that the collection of jury fees, which may be charged as a prerequisite to accepting the first motion to enter for filing and docketing in a pending action, is constitutional under art. 2, §§ 6 and 19 of the Oklahoma Constitution. This holding conforms with the teachings of Barnes v. Smith, 1937 OK 26, 64 P.2d 1217, Royalpark-Moore v. Hubbard, 1973 OK 10, 508 P.2d 1064, Naylor v. Petuskey, 1992 OK 88, 834 P.2d 439 and Mehdipour v. State ex rel. Dept. of Corrections, 2004 OK 19, 90 P.3d 546 aligning Oklahoma with the majority position. It is also consistent with 28 O.S. 2001 § 124 allowing court clerks to require deposits for anticipated costs.

¶ 3 The Constitution was never intended to guarantee the right to litigate entirely without expense to the litigants, nor to impose upon the public the entire burden of the expense of the maintenance of the courts.5 The minimum average costs of providing six and twelve-person juries are $ 480.00 and $840.00,6 respectively. The $349.00 fee imposed by 28 O.S. Supp. 2004 § 152.1(A)(7) is clearly inadequate to cover all the expenditures necessary in empaneling a jury. Therefore, we hold that the $349.00 jury fee imposed by 28 O.S. Supp. 2004 § 152.1(A)(7) is reasonable and not excessive. It does not limit the access to justice guaranteed by the Okla. Const. art. 2, § 6 nor does it violate art 2, § 19's promise of an inviolate right to jury trial.

¶ 4 The highest courts in three states have addressed the issue of whether jury fees must be returned where jury service is not ultimately required. The sole decision requiring a refund has been limited by subsequent opinions and by the general practice of the state.7 The other opinions hold in favor of retention and are well-reasoned.8 They are also consistent with In re Lee, 1917 OK 458, 168 P. 53 and the expressed legislative intent found in the interplay between 28 O.S. Supp. 2004 § 152.1(A)(7) and 10 O.S. Supp. 2002 § 7110.1.9 We determine that the $349.00 jury fee imposed by 28 O.S. Supp. 2004 § 152.1(A)(7) is not subject to refund if jury services are not utilized.

UNDISPUTED FACTS

¶ 5 On March 5, 2004, Barzellone filed a class action challenging the constitutionality of the $349.00 jury fee imposed by 28 O.S. Supp. 2004 § 152.1(A)(7). He sought a declaratory judgment barring the defendant/appellee, Patricia Presley (court clerk), from collecting the jury fee in future causes.

¶ 6 Barzellone moved for summary judgment. In response, the court clerk filed an objection to the motion and filed for summary judgment. The court clerk argued that the fee statute was not unconstitutional and that she was required to collect the fee both under the statutory provision and pursuant to Administrative Directive 2003-79 issued on October 20th, 2003.10

¶ 7 On July 14, 2005, after a hearing, the trial court overruled Barzellone's motion and granted the court clerk summary judgment. Barzellone filed his petition in error and motion to retain on August 12, 2005. The motion was granted on the 30th and the parties were ordered to file briefs. The order setting the briefing schedule also notified the Attorney General of the filing of the appeal attacking the constitutionality of state statutes. The order informed the Attorney General11 and any interested amici curiae12 that, if briefs were filed in the cause, they would be held to the same briefing schedule as the parties. The Attorney General declined briefing of the issues. The parties and the amicus curiae, Oklahoma Trial Lawyers Association (Association), filed their briefs-in-chief on October 12, 2005. The briefing cycle was completed on November 1, 2005, with the filing of simultaneous reply briefs.

DISCUSSION

¶ 8 a. The collection of jury fees is constitutional under the Oklahoma Constitution, art. 2, §§ 6 and 19.

¶ 9 Although Barzellone seems most concerned with the amount of the jury fee, he also argues that the guarantee of art. 2, § 1913 that the right to a jury trial "shall be and remain inviolate" and art. 2, § 6's14 promise that "justice shall be administered without sale, denial, delay, or prejudice" are rendered meaningless when any fee is imposed for the empaneling of a jury. Therefore, he asserts that the fee included within 28 O.S. Supp. 2004 § 152.1(A)(7)15 is unconstitutional. The assertions of the amicus curiae are substantially similar.

¶ 10 The court clerk did not address the constitutional arguments in the brief in chief or in the reply. Nevertheless, we presume her position to be in opposition to that of Barzellone and the Association.16 Jury fees set by statute cannot be circumvented by procedural nicety. It is the duty of the court clerk to charge and collect the fee17 prescribed by 28 O.S. Supp. 2004 § 157.1(A)(7).

¶ 11 As early as 1917, the Court determined that the collection of a $25.00 docketing fee to be deducted from a non-refundable advance payment to the Supreme Court Clerk of $40.00 dollars in appellate cases was not a sale or denial of justice18 within the meaning of art. 2, § 6. By 1932, it was recognized that the right to reasonable court fees was so generally accepted that its discussion seemed unnecessary. Rather, the imposition of such fees was determined not to be a denial or sale of justice within the meaning of art. 2, § 6 provided they were uniform, reasonable and related to the services provided. The language of the constitutional provision was deemed to mean simply that justice could not be bought, nor that litigation expenses, in the nature of costs and disbursement, be so exorbitant and onerous as to virtually close the courthouse doors.19

¶ 12 The controversy in Barnes v. Smith, 1937 OK 26, 64 P.2d 1217 involved the prior collection of a fee, to be posted with the court clerk, intended to defray the per diem of the eighteen jurors summoned. The Barnes Court determined that a statute allowing a collection of $50.00 in causes, not involving contracts, from parties seeking a jury trial when court funds were exhausted was not prohibited by the inviolate right of jury trial guaranteed by the Oklahoma Constitution. In doing so, the Court rejected an argument that the charge was an illegal restraint on the right of jury trial. To the contrary, it determined that the statute carried out the spirit of art. 2, § 6 and imposed no burden. Rather, litigants were offered an opportunity to voluntarily assume a charge which would otherwise have been borne by the public. Finally, the Barnes Court opined that "[i]t is by no means certain that such a charge, even if made obligatory, would violate constitutional inhibitions." [Emphasis provided.] Last year, relying on Barnes, we issued an order holding that, in civil cases where litigants are entitled to a jury trial, the party demanding the jury trial is obligated to prepay the cost20 required in 28 O.S. Supp. 2004 § 152.1(A)(7).

¶ 13 Royalpark-Moore v. Hubbard, 1973 OK 10, 508 P.2d 1064 addressed the necessity of the pre-payment of jury fees in small claims actions. The Court held that litigants must timely take certain steps before being entitled to a jury trial. These requirements, including the prepayment of a $25.00 jury fee, were found to be constitutional under the Okla. Const. art. 2, § 19. In reaching this determination, the Hubbard Court reasoned that the constitutional provision did not preclude legislative action in prescribing a procedure to be followed in obtaining a jury trial.21

¶ 14 This Court has upheld a variety of fees, either collected by the court clerk or taxed as costs, against constitutional challenge.22 In Naylor v. Petuskey, 1992 OK 88, 834 P.2d 439 involving 28 O.S. 1991 § 152.123a statute identical to 28 O.S. Supp. 2004 § 152.1(A)(7) except for the difference in the amount of...

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