Ottis v. Stevenson-Carson School Dist. No. 303

• Decision Date: 01 July 1991
• Docket Number: No. 12545-5-II,STEVENSON-CARSON,12545-5-II
• Citation: 61 Wn.App. 747,812 P.2d 133
• Court: Washington Court of Appeals
• Parties: , 68 Ed. Law Rep. 173 Sharon Lee OTTIS, as Guardian ad Litem for Jay L. Ottis, Appellant, v.SCHOOL DISTRICT NO. 303 and Albert E. McKee and Judy McKee, husband and wife, Respondents.

Page 747

61 Wn.App. 747

812 P.2d 133, 68 Ed. Law Rep. 173

Sharon Lee OTTIS, as Guardian ad Litem for Jay L. Ottis, Appellant, v. STEVENSON-CARSON SCHOOL DISTRICT NO. 303 and Albert E. McKee and Judy McKee, husband and wife, Respondents.

No. 12545-5-II.

Court of Appeals of Washington Division 2.

July 1, 1991.

Ronald H. Reynier, Jr., Hood River, Or., for appellant.

Roland L. Skala, Weeks & Skala, Yakima, for respondents.

MORGAN, Judge.

Jay Ottis, a student in Stevenson-Carson School District No. 303, sustained a serious knee injury while wrestling in a physical education class taught by Albert McKee. Acting as guardian ad litem, his mother, Sharon, filed suit against the District and McKee. Trial commenced on August 8, 1988, and resulted in a verdict for defendants. Plaintiff appeals, her principal contention being that another District employee, James Hurley, was allowed to sit on the jury. We affirm.

On the first day of trial, after plaintiff had exhausted all her peremptory challenges, James Hurley was called as a prospective juror. Hurley was currently employed as a teacher with the Stevenson-Carson District, and had been so employed since 1976. He had coached various sports, for both boys and girls, at the middle school and high school levels. For a year, he had been an assistant wrestling coach in one of the District's middle schools, but he had little specialized training in wrestling. He had previously taught at the high school where the injury occurred but was currently teaching at a middle school. For one year, he had been an assistant football coach while McKee was head football coach. Hurley had coached Jay Ottis' brother in football, but could not recall whether he had coached Jay himself. He had taught McKee's two sons in school, and he continued to be acquainted with them because as adults they had become teachers in the District. Outside of school, Hurley's social contact with McKee was "fairly limited." Until the morning of trial, Hurley had been unaware of the court proceedings.

On voir dire, Hurley stated that he could render an impartial verdict and not be influenced by his past experience. Nevertheless, plaintiff's counsel made an oral motion challenging him for cause. Plaintiff's counsel did not state any specific grounds or authority, and the trial court denied the motion. Later the same day, the jury was sworn and plaintiff's counsel gave his opening statement.

On the morning of the second day of trial, prior to defense counsel's opening statement, plaintiff's counsel filed a written motion to strike Hurley from the panel, or in the alternative to strike the entire panel. The grounds stated in the written motion were "juror misconduct and the fact that Mr. Hurley could act as a witness to pertinent issues in this case." In the course of announcing on the record that he had received the motion, the trial judge stated, "... [C]ounsel did not cite it as grounds, but I wonder about implied bias...." As far as the record shows, this was the first time implied bias was mentioned by anyone involved with the case.

After receiving the written motion, the trial judge allowed additional argument by counsel. Both commented on his suggestion of implied bias, but neither asserted that Hurley was automatically disqualified as a juror because he was employed for wages by the school district. ¹

Also, the trial judge allowed additional voir dire of the juror. Except for one question asked by the trial judge, all of the questions concerned Hurley's relationship with Jay Ottis, and none dealt with Hurley's relationship with the defendants. At the end of the additional voir dire, plaintiff's counsel again challenged for cause without stating any grounds, and the motion was again denied.

After the jury returned a verdict for defendants, plaintiff filed a motion for new trial on various grounds that will be discussed below. The court denied the motion.

On appeal, plaintiff contends that the trial court abused its discretion by refusing to dismiss Hurley when she challenged him for cause, ² and by refusing to grant her motion for new trial. The two contentions will be considered separately.

I. CHALLENGES FOR CAUSE

In Washington, a comprehensive legislative scheme governs jury challenges. Challenges may be peremptory or for cause. RCW 4.44.130; see also, CR 47(e). Challenges for cause may be general or particular. RCW 4.44.150; see also, CR 47(e). A particular challenge for cause may be grounded on actual or implied bias. RCW 4.44.170 ³; RCW 4.44.190 ⁴; RCW 4.44.180 ⁵; see also, CR 47(e).

A. Actual Bias

Actual bias means the existence of a state of mind on the part of the juror, with reference to the action or any party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging. RCW 4.44.170(2); see also, RCW 4.44.190. Therefore, when a challenge for actual bias is made, the question for the trial judge is whether the prospective juror's state of mind is such that he or she can try the case fairly and impartially. RCW 4.44.190.

This question is one of preliminary fact. It is a question of fact because rather than involving a general policy or rule of law, it involves the state of mind of a specific person (the challenged juror), at a specific time (the time of jury selection), in a specific case (the case being litigated). It is a preliminary question because it must be resolved before the challenge itself can be ruled upon. ⁶

The procedure for deciding questions of preliminary fact related to jury challenges, including actual bias, is set forth in the statutes. When a particular challenge for cause is made, the opposing party can deny it, RCW 4.44.230, orally, RCW 4.44.250, on grounds that it is facially insufficient or that the facts needed to support it are not true. RCW 4.44.230. If the denial is based on facial insufficiency, the court must assume the alleged facts to be true and then determine sufficiency. RCW 4.44.230. If the denial is based on a claim that the alleged facts are not true, the court "shall try the issue and determine the law and the facts." RCW 4.44.230. At this "trial," the rules of evidence apply, RCW 4.44.240, although we recognize that the parties do not customarily invoke them. ⁷ See also, CR 47(e).

When resolving the preliminary fact question of whether a particular juror is actually biased within the meaning of statutes, a trial judge uses fact-finding discretion which is the same as that used to resolve any other issue of fact. This discretion includes the power to weigh the credibility of the prospective juror and any other persons involved, see State v. Noltie, 116 Wash.2d 831, 839, 809 P.2d 190 (1991), and to choose among reasonable but competing inferences. Moreover, it must be exercised on the basis of probabilities, not possibilities, State v. Noltie, 116 Wash.2d 831, ----, 809 P.2d 190 (1991), which is equivalent to saying that the challenging party has the burden of proving the facts necessary to the challenge by a preponderance of evidence. See Bourjaily v. United States, 483 U.S. 171, 176, 107 S.Ct. 2775, 2779, 97 L.Ed.2d 144, 152 (1987) (in federal criminal case, question of fact preliminary to admission of evidence determined by preponderance of evidence).

Although granting or denying a particular challenge for cause is a matter addressed to the discretion of the trial judge, State v. Rupe, 108 Wash.2d 734, 749, 743 P.2d 210 (1987); State v. Gilcrist, 91 Wash.2d 603, 611, 590 P.2d 809 (1979); State v. Gosser, 33 Wash.App. 428, 433, 656 P.2d 514 (1982); Miles v. F.E.R.M. Enterprises, Inc., 29 Wash.App. 61, 64, 627 P.2d 564 (1981), on a challenge for actual bias the trial judge's discretion will ordinarily be exhausted once he or she has resolved the preliminary fact question concerning the prospective juror's state of mind. ⁸ The challenge must be granted--as obviously it will be--if the trial judge finds by a preponderance of evidence that the prospective juror's state of mind is such that he or she cannot try the case fairly and impartially. RCW 4.44.170(2); RCW 4.44.190; State v. Gosser, 33 Wash.App. at 433, 656 P.2d 514 ("If, however, a juror should have been excused for actual bias, but was not, the remedy is reversal"). The challenge cannot be granted--as obviously it will not be--if the trial judge finds by a preponderance of the evidence that the prospective juror's state of mind is such that he or she can try the case fairly and impartially.

An appellate court reviews a trial court's decision on actual bias in the same way as it reviews any other factual determination by a trial court. Rather than making its own de novo decision, the appellate court must defer to the trial court's decision. ⁹ State v. Noltie, 116 Wash.2d 831, 840, 809 P.2d 190 (1991); State v. Rupe, supra at 108 Wash.2d 749, 743 P.2d 210; State v. Gosser, 33 Wash.App. at 434, 656 P.2d 514. This is done by taking the evidence in the light most favorable to the prevailing party below, ¹⁰ which in turn means that the appellate court must accept the trial judge's decision regarding the credibility of the prospective juror and any other persons involved, as well as the trial judge's choice of reasonable inferences. ¹¹

Applying these principles to the present case, we hold that the trial judge did not abuse his discretion by denying plaintiff's challenge for actual bias--in other words, we defer to the trial judge's factual determination that Hurley's state of mind was such that he could fairly and impartially try the case. To be sure, Hurley's long-term contact with various persons involved in the case, as well as his duties for and long association with the school district, was sufficient to support a reasonable inference that his state of mind was such that he could not try the case fairly and impartially. Cf. State v. Parnell, 77 Wash.2d 503, 463 P.2d 134 (196...