Malvo v. J. C. Penney Co., Inc., 1630

CourtSupreme Court of Alaska (US)
Citation63 A.L.R.3d 1034,512 P.2d 575
Docket NumberNo. 1630,1630
PartiesAlton and Alice MALVO, on behalf of Paula Malvo, a minor, Appellants, v. J. C. PENNEY COMPANY, INC., Appellee.
Decision Date13 July 1973



This case arises from a civil action for false imprisonment and slander. The precipitating incident was the detention and questioning of three black teenage girls by a security employee of O'Neill Investigations who suspected them of shoplifting at the J. C. Penney Company's Anchorage store on December 17, 1969. Appellant, Paula Malvo, was a member of that group.

It appears that Paula, three teenage friends, and the mother of one of the girls entered the store to shop. Three of the teenagers were shopping for identical ensembles in the sportswear department where Susan Baxter, a security employee with O'Neill Investigations, was on duty. Although sales personnel were on duty, none assisted the teenagers. Paula and her friends made several trips into the dressing rooms at the same time that two other persons were using the rooms. After the girls had made purchases, the security guard, Baxter, who alleges she was keeping notes on a piece of paper, later lost, notified a clerk that she suspected she would need her help. Susan Baxter then found two empty hangers in the dressing room, notified the three girls that she was 'security' and could not account for two blouses, and asked the three girls and the mother to go upstairs.

The guard motioned for the clerk to follow her and the group proceeded to the elevator with the guard and the clerk at the rear. Although there is some dispute as to the presence of other patrons in the immediate vicinity, it is undisputed that on the way to the elevator they encountered some teenage boys and when they arrived upstairs, the boys were there and chided them. Hillier, a store manager, was also upstairs and stood at the door of the office where the girls were searched. After the office door was closed, the guard asked the girls to drop their blouses and found no concealed merchandise. No effort was made to search or apprehend the other shoppers alleged to have been in the dressing rooms. After the incident, rumors of the girls having been stopped for shoplifting reached the pastor of their church and the girls' schoolmates.

A complaint was filed setting forth claims of slander and false imprisonment. An initial jury trial resulted in a defense verdict as to the slander claim and a divided jury as to false imprisonment. Upon retrial the jury rendered a defense verdict as to the remaining claim of false imprisonment. The trial judge awarded J. C. Penney $10,504.20, the full amount of attorney's fees requested under Civil Rule 82 announcing that as a matter of policy a successful defendant should be granted his actual attorney's fees incurred to the extent that they are reasonable.

Paula Malvo, in appealing from the judgment rendered on both verdicts, alleges eight specifications of error. Three of those issues are dispositve of this appeal, and we reach only those additional points which must be resolved to avoid possible errors on remand.


A number of issues have been raised with reference to the selection of the juries. Challenges based on debtor-creditor relationship between jurors and J. C. Penney were overruled. Rule 47(c) 1 sets forth 13 different paragraphs containing grounds for challenges for cause. Many of those grounds involve value judgments on the part of the trial judge. Thus, subparagraph (2) pertains to bias, (3) deals with the person's state of mind which will prevent him from rendering a just verdict, and (4) refers to opinions or conscientious scruples which would improperly influence his verdict.

It is well settled that challenges for cause under Rule 47(c), based on such grounds, are within the sound discretion of the trial judge, with which we are most reluctant to interfere. In Mitchell v. Knight, 394 P.2d 892, 897 (Alaska 1964), with reference to a challenge that a juror's state of mind would prevent him from rendering a just verdict, we stated:

Civil Rule 47(c) places the determination of challenges for cause in the discretion of the trial judge. We shall interfere with the exercise of that discretion only in exceptional circumstances and to prevent a miscarriage of justice. 2

Other grounds for challenge set forth in Rule 47(c) are based solely on a determination as to whether certain factual situations exist. In those instances, once the facts are established there is no basis for discretion to be exercised by the trial judge. Thus, Rule 47(c)(1), (5), (6), (7) and (8) establish grounds for challenges for cause if it is shown that a person is not qualified by law to be a juror, has been subpoenaed as a witness in the case, that the person has already sat upon a trial of the same issue, that a person has served as a grand or petit juror in a criminal case based on the same transaction, or was previously called as a juror and excused at a previous trial of the same action. Similarly, other subsections specify grounds for challenges based on the existence of certain relationships (Rule 47(c)(9) and (10)). Where one of those relationships clearly exists, the trial judge must grant the challenge.

In each trial one or more jurors who had outstanding balances on their J. C. Penney charge accounts were challenged for cause. Rule 47(c)(10) of the Civil Rules provides in pertinent part:

The following are grounds for challenge for cause:

(10) That the person is the guardian, ward, landlord, tenant, employer, employee, partner, client, principal, agent, debtor, creditor, or member of the family of a party or attorney. (Emphasis added.)

Once facts have been presented establishing such a relationship between the juror and a party, the grounds for challenge have been met. Accordingly, the failure of the trial judge to grant the challenge for those jurors who had a debtor-creditor relationship with J. C. Penney was error.

Moreover, we cannot say that this was 'harmless error' within the rule of City of Kotzebue v. Ipalook, 462 P.2d 75 (Alaska 1969). 3 Malvo used all of her peremptory challenges under Civil Rule 47(d) and the denial of the challenges for cause under Civil Rule 47(c)(10) allowed those jurors to sit. Thus, we must remand for a new trial.


Neither jury contained a black person. Malvo argues on appeal that this is a 'prima facie' case of 'systematic and intentional exclusion' of her peers so as to be a violation of the constitutional right to a jury trial.

It is well established that the right to an impartial jury trial guaranteed in criminal proceedings by the sixth amendment to the United States Constitution 4 and article 1, section 11, of the Alaska Constitution 5 embraces the concept of trial by a jury constituting a fair 'cross-section of the community'. If prospective jurors are not drawn from that fair 'cross-section', the constitutional standard of impartiality is not met. Alvarado v. State, 486 P.2d 891, 898 (Alaska 1971). See also Green v. State, 462 P.2d 944 (Alaska 1969). Although the 'contours of a fair cross section of the community are elusive and, indeed . . . may not be susceptible of precise definition', Alvarado, supra, 486 P.2d at 898-899, any method of jury selection which is 'in reality a subterfuge to exclude from juries systematically and intentionally some cognizable group or class of citizens in the community' is clearly invalid. 6 Green v. State, 462 P.2d 994, 998 (Alaska 1969), citing Chance v. United States, 322 F.2d 201, 203 (5th Cir. 1963).

Malvo rests her argument solely on the fact that there were no blacks on either jury. While neither this court 7 nor the United States Supreme Court 8 has clearly held that the 'fair cross-section' standard is constitutionally compelled in civil trials, in the instant case, Malvo has not met her burden of proving a 'systematic and intentional exclusion' even under the strict criminal trial standards of impartiality.

Under such standards for a constitutional defect to exist in a jury, it is well settled that the method of choosing the jury must be one that purposefully and systematically excludes an identifiable portion of the community, and it is not sufficient to show simply that the particular jury in question does not include a representative from all segments of the local population. In Swain v. Alabama, 380 U.S. 202, 205, 85 S.Ct. 824, 827, 13 L.Ed.2d 759, 764 (1965), the United States Supreme Court held:

(P)urposeful discrimination may not be assumed or merely asserted. . . . It must be proven, . . . the quantum of proof necessarily being a matter of federal law. (Citations omitted.)

The court went on to note at 380 U.S. 208, 85 S.Ct. 829, 13 L.Ed.2d 766:

(A) defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him nor on the venire or jury roll from which petit jurors are drawn. . . . '(S)ince there can be no exclusion of Negroes as a race and no discrimination because of color, proportional limitation is not permissible.' (Citations omitted.)

While the courts have recognized that the only practical way a litigant may prove systematic and intentional discrimination is by showing a consistent lack of proportional representation through proof of objective results of the jury selection process, 9 these cases all involved proof of objective results over a long period of time and with reference to a large number of juries. Under Malvo's argument the mere fact that there were no blacks on either jury...

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