Holmgren v. North Dakota Workers Compensation Bureau

Decision Date25 April 1990
Docket NumberNo. 890307,890307
Citation455 N.W.2d 200
PartiesJanet D. HOLMGREN, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Respondent and Appellee. Civ.
CourtNorth Dakota Supreme Court

Alan Baker of the Baker Legal Clinic, Fargo, for claimant and appellant.

Dean J. Haas, Asst. Atty. Gen., Bismarck, for respondent and appellee.

LEVINE, Justice.

This appeal presents an issue of first impression in North Dakota: whether a juror is an appointed official eligible for workers compensation benefits. 1 We hold that she is and reverse and remand.

Janet Holmgren was summoned to service as a juror for the District Court for Cass County. During the course of her service, she fell on a stairway at the courthouse and injured her ankle. She filed a claim for workers compensation benefits. The Workers Compensation Bureau (Bureau) dismissed her claim, finding that she was not an employee of the State of North Dakota for purposes of workers compensation coverage. Holmgren appealed the dismissal of her claim to the district court, which affirmed the Bureau decision. This appeal followed.

Although the district court's analysis is entitled to respect, Medcenter One v. Job Service, 410 N.W.2d 521 (N.D.1987), on appeal, we review the decision of the Bureau, rather than that of the district court. Grace v. North Dakota Workmen's Comp. Bureau, 395 N.W.2d 576 (N.D.1986). Our review of administrative decisions is limited and controlled by NDCC § 28-32-19. Grace, supra. One of that statute's requirements is that we determine whether the agency decision is in accordance with the law. To make that determination, we look to the law and its application to the facts. E.g., Speedway, Inc. v. Job Service North Dakota, 454 N.W.2d 526 (N.D.1990); Bickler v. North Dakota State Highway Comm'r, 423 N.W.2d 146 (N.D.1988).

The Bureau found that "service as a juror is a civic responsibility rather than an employment." It concluded as a matter of law that Holmgren "was not an employee of the State for purposes of workers compensation coverage during the performance of her civic responsibilities as a juror."

Holmgren argues that the Bureau decision is not in accordance with the law. She asserts that a juror is an appointed official of the state and thus an employee under our workers compensation statute. She points out that although public officials do not fit the traditional concept of "employee," they are, nevertheless, specifically included as employees under our workers compensation law.

Section 65-01-02(14), NDCC, defines "employee" to include:

"every person engaged in a hazardous employment under any appointment, contract of hire, or apprenticeship, express or implied, oral or written, and:

"a. The term includes:

"1. All elective and appointed officials of this state and its political subdivisions, including municipal corporations and including members of the legislative assembly, and all elective officials of the several counties of this state, and all elective peace officers of any city."

The word "official" is not defined in Title 65, although examples of classes included as officials are provided. NDCC § 65-01-02(14)(a)(1). While jurors are not enumerated as one of the examples of officials, neither are they specifically excluded from the definition of the broader term "employee." See NDCC § 65-01-02(14)(b). Thus, if a juror is an "official of this state [or] its political subdivisions," a juror is, for purposes of workers compensation law, an "employee." See NDCC § 65-01-02(14)(a)(1). Since the definition of "employee" includes appointed officials, when the Bureau determined that Holmgren was not an employee of the state while on jury duty, it necessarily determined that she was not an appointed official during that service.

In State ex rel. Birdzell v. Jorgenson, 25 N.D. 539, 142 N.W. 450 (1913), this Court dealt with the question whether members of the State Board of Tax Commissioners were state officers. In that case, we held that the commissioners were state officers because 1) they hold their positions by election or appointment, 2) are paid from public funds, 3) perform duties of a continuous nature which are 4) defined by statute and 5) related to the administration of state government. Jorgenson, 142 N.W. at 456, quoting from Parks v. Commissioners of Soldiers' & Sailors' Home, 22 Colo. 86, 43 P. 542 (1896). See 67 C.J.S. Officers § 8 (1978).

To determine whether a juror is an appointed official, we analyze the function, duties and authority of a juror in light of the tests of office enunciated by this Court in Jorgenson. Our analysis is shaped by our tradition of liberal construction of the Workers Compensation Act. The purpose of workers compensation is to protect workers from the hazards of employment by providing sure and certain relief for workers injured in their employment. NDCC § 65-01-01. See, e.g., Cormier v. National Farmers Union Property & Casualty, 445 N.W.2d 644 (N.D.1989). To that end, we construe the provisions of Title 65 liberally, with the view of extending its benefit provisions to all who can fairly be brought within them. Lawson v. Workmen's Comp. Bureau, 409 N.W.2d 344 (N.D.1987); Syverson v. Workmen's Comp. Bureau, 406 N.W.2d 688 (N.D.1987); Claim of Bromley, 304 N.W.2d 412 (N.D.1981); Morel v. Thompson, 225 N.W.2d 584 (N.D.1975); Boettner v. Twin City Construction Co., 214 N.W.2d 635 (N.D.1974); Brown v. North Dakota Workmen's Comp. Bureau, 152 N.W.2d 799 (N.D.1967).

I. Appointment

Appointed officials are those persons designated to or selected for public office. See State ex rel. Poole v. Peake, 18 N.D. 101, 120 N.W. 47, 49 (1909). Potential jurors are drawn from the citizenry at large and summoned to attendance at sessions of court. NDCC §§ 27-09.1-05 to 27-09.1-09. Members of a prospective jury panel are drawn from the pool of qualified jurors and subjected to the voir dire process. Id. at §§ 28-14-03, 28-14-06, 29-17-03, 29-17-05, 29-17-33 to 29-17-46. Upon completion of the juror selection process, the chosen jurors swear an oath administered by the court or its clerk. NDCC §§ 28-14-08, 29-17-12 (jurors' oaths). Thus, in the broadest sense of the word, the sense adopted in Peake, jurors are appointed, inasmuch as they are "selected" for their positions pursuant to both rule and statute. NDRCrimP 24, NDRCivP 47; NDCC ch. 27-09.1, ch. 29-17.

II. Public Funds

Like other public officials, jurors are paid from public funds. Section 27-09.1-14 provides that jurors will be paid mileage as well as compensation. 2 The State pays the mileage and compensation of jurors attending sessions at district court. 3 NDCC § 27-09.1-14. The current rate of compensation for district court jurors is $25 per day. Id.

III. Continuous Nature

The requirement of tenure and permanence of duties means that the office itself has some permanence and continuity, not that the incumbent does. 67 C.J.S. Officers § 8 at 240. See Wargo v. Industrial Comm'n, 58 Ill.2d 234, 317 N.E.2d 519 (1974) [duties of position of county election judges are continuous without regard to the particular person who holds the office]. By virtue of the constitutional guarantee of trial by jury, the position of juror can be said to be continuous although the service of an individual juror may be short-term. A public office may exist even in the absence of a fixed term for the particular incumbent. Alvey v. Brigham, 286 Ky. 610, 150 S.W.2d 935 (1940). However, in North Dakota a juror's "term" or length of service is established by statute. NDCC § 27-09.1-15.

"In any two-year period a person shall not be required:

"1. To serve or attend court for prospective service as a petit juror more than ten court days, except if necessary to complete service in a particular case...." NDCC § 27-09.1-15.

By law, an individual juror's service is required until the case in which she serves is completed. Thus, the continuous nature of a juror's duties is akin to the tenure and permanence of duties associated with public office. See 67 C.J.S. Officers § 8 at 239; Griggs v. Harding County, 68 S.D. 429, 3 N.W.2d 485 (1942).

IV. Duties Defined by Statute

Public office may be created by statute, e.g., NDCC § 10-04-03 (securities commissioner), or constitution, e.g., N.D. Const. art. V § 12 (Secretary of State, Attorney General, Treasurer, among others). Our federal and state constitutions are the genesis of the jury and juror. U.S. Const. amend. VI; N.D. Const. art. I § 13 (right of trial by jury shall be secured to all and remain inviolate). The constitution is the paramount law of our State. See Northwestern Bell Tel. Co. v. Wentz, 103 N.W.2d 245 (N.D.1960). Because the position of juror is created by constitution, it more than fulfills the Jorgenson requirement that a public office must be created or defined by statute.

The juror's duties are, however, defined by statute and embodied in the oath prescribed by law. Jurors in criminal cases must swear or affirm "well and truly to try and true deliverance make between the state of North Dakota and the defendant whom they have in charge, and to give a true verdict according to the evidence." NDCC § 29-17-12. In civil cases, a similar oath or affirmation is required. NDCC § 28-14-08. Jurors must not form an opinion in the case until the case is submitted to them nor discuss the case with others or among themselves until they retire to consider their verdict. NDCC §§ 28-14-16, 29-21-28.

V. Administration of Government and Sovereign Power

An appointed officer's duties must be related to the administration of government. In Jorgenson, we explained that "State officers are those whose duties concern the state at large or the general public, although exercised within defined limits, and to whom are delegated the exercise of a portion of the sovereign powers of the State." Jorgenson, 142 N.W. at 456, quoting 36 Cyc. at 852. See 67 C.J.S. Officers § 8 at 237-39; 1C A. Larson, Workmen's...

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