Long v. Brusco Tug & Barge, Inc.

• Decision Date: 25 February 2016
• Docket Number: No. 90976–8.,90976–8.
• Citation: 368 P.3d 478,185 Wash.2d 127
• Court: Washington Supreme Court
• Parties: Brian LONG, Petitioner, v. BRUSCO TUG & BARGE, INC., a Washington corporation; Brusco Maritime Co., a Washington corporation; and Bo Brusco and his marital community, Respondents.

185 Wash.2d 127

368 P.3d 478

Brian LONG, Petitioner,

v.BRUSCO TUG & BARGE, INC., a Washington corporation; Brusco Maritime Co., a Washington corporation; and Bo Brusco and his marital community, Respondents.

No. 90976–8.

Supreme Court of Washington, En Banc.

Argued June 25, 2015.

Decided Feb. 25, 2016.

Scott Crispin Greco Blankenship, Richard Goldsworthy, The Blankenship Law Firm, P.S., Seattle, WA, for Petitioner.

Amanda T. Gamblin, Colin Jeffrey Folawn, Schwabe Williamson & Wyatt, Portland, OR, Brian Keith Keeley, Schlemlein Goetz Fick & Scruggs PLLC, Averil Budge Rothrock, Christopher Holm Howard, Schwabe Williamson & Wyatt PC, Seattle, WA, for Respondents.

STEPHENS, J.

¶ 1 Brian Long appeals the denial of his motion for a new trial based on a claim of juror misconduct. The question before us is whether the juror declarations Long submitted in support of his motion describe actual misconduct by jurors or instead reveal matters that inhere in the verdict. We conclude the declarations expose the jury's deliberative process behind closed doors and cannot be considered to impeach the verdict. Accordingly, we affirm the trial court and the Court of Appeals' conclusion that Long is not entitled to a new trial.

FACTS AND PROCEDURAL HISTORY

¶ 2 Long sued his former employer, Bo Brusco and Brusco Tug & Barge Inc. (Brusco), alleging wrongful termination in retaliation for opposing Brusco's discriminatory conduct against another employee. The underlying facts were hotly disputed and centered on Brusco's response to Long's having hired as a deckhand Anthony Morgan, an individual who had a prosthetic leg. Morgan was not a party to this lawsuit. As Judge William Downing explained in his order denying Long's motion for a new trial, "It was repeatedly conveyed to the jury that whether or not, in hindsight, Mr. Morgan was discriminated against was not their concern; rather, their focus should begin with the question of whether or not Mr. Long, at that time, had a reasonable belief that Mr. Morgan was being discriminated against." Clerk's Papers (CP) at 1948.

¶ 3 The reasonable belief element of Long's claim was not strongly disputed. Indeed, Brusco conceded that Long reasonably believed Morgan was discriminated against. 19 Verbatim Report of Proceedings (VRP) (May 7, 2013) at 2329–30. "The elements that developed as constituting the crux of the jury's work were (a) whether the plaintiff engaged in opposition conduct (or did his support for Mr. Morgan cease once the discriminatory act was done?), (b) whether the plaintiff suffered an adverse employment action (or was he given a lateral transfer to a higher paying position?), and (c) whether any such adverse employment action was taken with a retaliatory motive (or was it because of his missing a ship assist job?)." CP at 1949. To establish his claim, Long needed to prevail at trial on all of these disputed issues.

¶ 4 Following a two-week trial and at the end of two days of deliberations, the jury returned a verdict in favor of Brusco, by a vote of 10–2. Long's attorneys thereafter interviewed jurors who were willing to talk, and secured declarations from 4 of the 12. In support of his motion for a new trial, Long submitted the 4 jurors' declarations, which address various aspects of the trial and deliberations. CP at 1768–79, 1780–92.¹

¶ 5 The trial court denied Long's motion, and the Court of Appeals affirmed in an unpublished opinion. Long v. Brusco, noted at 182 Wash.App. 1052, 2014 WL 3937336, at *7. We granted Long's petition for review. 182 Wash.2d 1021, 345 P.3d 785 (2015).

ANALYSIS

¶ 6 Central to our jury system is the secrecy of jury deliberations. Courts are appropriately forbidden from receiving information to impeach a verdict based on revealing the details of the jury's deliberations. Thus, in considering whether to declare a mistrial based on alleged juror misconduct, the first question is whether the facts alleged "inhere[ ] in the verdict"; this is a question of law we review de novo. Ayers v. Johnson & Johnson Baby Prods. Co., 117 Wash.2d 747, 768, 818 P.2d 1337 (1991).

¶ 7 Our case law recognizes two tests for determining whether facts in a juror declaration inhere in the verdict. Under the first test, facts "linked to the juror's motive, intent, or belief, or describ[ing] their effect upon" the jury inhere in the verdict and cannot be considered. Gardner v. Malone, 60 Wash.2d 836, 841, 376 P.2d 651 (1962). This includes facts touching on the mental processes by which individual jurors arrived at the verdict, the effect the evidence may have had on the jurors, and the weight particular jurors may have given to particular evidence. Cox v. Charles Wright Academy, Inc., 70 Wash.2d 173, 179–80, 422 P.2d 515 (1967). A second test asks whether facts alleged in juror declarations can be rebutted by other testimony without probing any juror's mental processes. Gardner, 60 Wash.2d at 841, 376 P.2d 651.

¶ 8 Circumstances in which it is " ‘universally agreed’ " that matters inhere in the verdict include when " ‘one or more jurors misunderstood the judge's instruction; or were influenced by an illegal paper or by an improper remark of a fellow juror; ... or had miscalculated accounts by errors of fact or of law.’ " Id. at 841–42, 376 P.2d 651 (footnote omitted) (quoting 8 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW 681 (McNaughton rev. ed.1961)). The policy behind refusing to consider matters that inhere in the verdict is to protect the sanctity of the jury room by " ‘prevent[ing] the jury from divulging what considerations entered into its deliberations or controlled its action[s].’ " Id. at 843, 376 P.2d 651 (quoting Md. Cas. Co. v. Seattle Elec. Co., 75 Wash. 430, 436, 134 P. 1097 (1913) ). At the same time, the rule " ‘does not close what is often the only avenue to a showing of actual facts constituting misconduct.’ " Id. (quoting Md. Cas., 75 Wash. at 436, 134 P. 1097 ).

¶ 9 Only if a court concludes that juror declarations allege actual facts constituting misconduct, rather than matters inhering in the verdict, does it proceed to "decide the effect the proved misconduct could have had upon the jury." Id. at 841, 376 P.2d 651. A trial court's decision in this regard will not be reversed on appeal unless the court abused its discretion. State v. Balisok, 123 Wash.2d 114, 117, 866 P.2d 631 (1994).

¶ 10 As noted, Long submitted declarations from 4 of the 12 empaneled jurors. He argues that the "unrebutted juror declarations prove that two jurors instructed the jury about outside Maritime and Coast Guard laws," and that their statements introduced into the deliberations "definitive legal premises" comparable to erroneous jury instructions. Suppl. Br. of Pet'r Long at 8–9. We find the declarations to be more equivocal than Long suggests. We conclude they reveal matters that inhere in the verdict. Accordingly, there is no need to further consider the effect the alleged statements may have had on the verdict.

¶ 11 We begin by noting that the four juror declarations are not uniform in their description of the facts Long relies on to establish misconduct. For example, two of the declarations omit any reference to the second juror alleged to have introduced "definitive legal premises" into the deliberations. CP at 1783–89. With respect to juror 12, who is mentioned in all the declarations, the characterization of his actual statements varies among the four accounts. All give the impression that juror 12 was persuasive, opining that he "presented his position well," CP at 1781, that he was "very authoritative about the content of his presentation," CP at 1784, and that he "persuasively commanded the floor," CP at 1788. And, they all note that he mentioned he had spent many years in the navy and was familiar with maritime laws, navy rules, boats, and boat safety. CP at 1780–92. But, exactly what juror 12 said about any applicable laws is less clear. For one thing, a second juror, identified in two of the declarations as "Robert P." or "Bob P.," reportedly offered his view that coast guard law would not allow a person with a prosthesis to work on the deck of a ship or boat. CP at 1781, 1791. This same juror is described as having "applied his experience in construction" to offer opinions on "sending people home from job sites if they didn't have their physical or [urinary analysis test] completed." CP at 1791.

¶ 12 Reading the declarations as a whole, it is difficult to ascertain the "definitive legal premises" that were allegedly introduced into the deliberations. Was it that navy and coast guard rules (or maritime law generally) disallow people with prosthetic limbs from working on ship decks; or instead that juror 12, being familiar with maritime laws generally, was unaware of any law that would have allowed Long to hire Morgan as a deckhand;² or that it showed bad judgment to hire someone with a prosthesis to work on a deck;³ or something else? Indeed, one declaration states that the "point [juror 12] emphasized the most" was that " [h]e knew from serving on ships that boats are very dangerous, and that someone like Anthony Morgan should not be on a boat by law." CP at 1788. Although this statement relates a general sense of "law," it also reflects juror 12's (strongly held) view based on his personal experience.⁴

¶ 13 We conclude that the matters revealed in the declarations inhere in the verdict and cannot be considered. Although portions of the declarations identify (in varying accounts) statements made by fellow jurors touching on questions of fact or law, these statements were expressions of personal belief based on life experiences. During jury deliberations, jurors may "rely on their personal life experience to evaluate the evidence presented at trial." Breckenridge v. Valley Gen. Hosp., 150 Wash.2d 197, 199 n. 3, 75 P.3d 944 (2003). Juror 12's relevant life experiences were known to both parties, as he disclosed during voir dire that he was a retired member of the...