State v. Coble, s. 80-505-C
| Decision Date | 31 March 1980 |
| Docket Number | Nos. 80-505-C,80-517-CR,s. 80-505-C |
| Citation | 95 Wis.2d 717,291 N.W.2d 652 |
| Parties | STATE of Wisconsin, Plaintiff-Appellant, v. Chambeous COBLE, Defendant-Respondent. STATE of Wisconsin, Plaintiff-Respondent, v. Chambeous COBLE, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Review Granted.
E. Michael McCann, Dist. Atty., with whom on the brief was Lee Wells, Deputy Dist. Atty. (argued), on brief, for plaintiff-appellant.
Gerard S. Paradowski, Acting Corp. Counsel of Milwaukee County, Milwaukee, argued on behalf of Chief Judge Victor Manian, amicus curiae.
Dennis P. Coffey (argued) and Coffey & Coffey, Milwaukee, on brief, for defendant-appellant.
Before DECKER, C. J., MOSER, P. J., and CANNON, J.
These are consolidated permissive appeals from two nonfinal orders pursuant to sec 809.50, Stats., whereby both petitioners challenge the present system for jury selection in Milwaukee county.
The defendant, Chambeous Coble, was convicted after a jury trial of endangering safety by conduct regardless of life in violation of sec. 941.30, Stats. The verdict was returned on March 19, 1980. Prior to trial, both the state and the defendant, Coble, challenged the jury panel selection process: Coble brought a motion for a continuance; the state brought a motion to strike the entire jury panel and to impanel a new jury in compliance with the Wisconsin Statutes. Both parties claimed that the selection process used violated various provisions of ch. 756 of the Wisconsin Statutes. Coble also claimed that the selection process used violated the rights guaranteed him under the Wisconsin and United States Constitutions. Both parties appeal from the trial court's denial of their respective motions. Milwaukee County Chief Judge Victor Manian joins in this appeal by order of this court as an intervenor arguing for affirmance of the trial court.
The trial court conducted a pretrial hearing concerning the propriety of the jury selection method used in this case. Jury Commissioner Roman Witkowiak, one of three jury commissioners for Milwaukee county, testified concerning the jury selection method used. He testified that fifty thousand jury qualification forms are sent to approximately fifty thousand potential jurors during a year. Question 6 of the jury qualification form reads: "Do you have any disabilities that would prevent you from serving as a juror?" The existent practice, which was followed in this case, is for the jury commissioners to revise the countywide jury list on the basis of the answer to this question by striking the names of those persons found by them to be ineligible for jury service. See secs. 756.01, 756.04, Stats.
Commissioner Witkowiak estimated that about 2218 jury qualification forms were sent out by him in early January of 1980 to obtain qualified jury panels for the months of February and March of the same year. From those forms, the following results were obtained:
52% qualified for jury duty;
24.6% permanently excluded from jury duty;
8.8% temporarily excluded from jury duty;
14.1% questionnaires returned marked "no addressee located" by postal authorities.
The state provides, as a part of the record for appeal, a random sample of twelve of the qualification forms of prospective jurors who were permanently excused from jury service. The random sample reveals answers to question 6 ranging from descriptions of personal illness to statements of personal inconvenience to simple lack of interest. One prospective juror stated she was incapable of reading, writing, or understanding English, while another merely stated she had an improper education. Six prospective jurors made health-related claims: "recurring gout;" "allergies and sleepiness;" "allergies and arthritis;" "CVA Aphasia;" a seventy-two-year-old woman's claim of not being "well;" and a sixty-seven-year-old woman's claim of lack of "stamina." One prospective juror from the sample claimed "job requirements" as an excuse, another claimed a lack of self-confidence and his age (seventy-six years), while the final two simply stated a lack of interest.
These prospective jurors were excluded pursuant to sec. 756.04(2)(a) Stats., and a written communication from Chief Judge Manian on January 11, 1980. All juror qualification forms for excluded and qualified jurors were submitted to Judge Manian and then routed to jury management service where the excluded jurors were removed from the selection process and the qualified jurors were summoned for service. Judge Manian testified at the hearing that he did not review, investigate, or personally examine the qualification forms submitted to him by the jury commission.
The issues on appeal are essentially twofold: (1) whether the jury commissioners violated statutory provisions of ch. 756 of the Wisconsin Statutes by excusing potential jurors from jury service without a discretionary act of the chief judge; and, (2) whether the excuse of potential jurors by jury commissioners for allegedly noncompelling reasons violates either the United States or Wisconsin Constitutions.
The state and the defendant argue that the jury commissioners were improperly exercising judicial discretion by excusing potential jurors from the jury array in this case. They claim that only patently unqualified jurors can be disqualified by jury commissioners. Specifically, they point to some language of sec. 756.01, Stats., which requires jurors to be electors, U.S. citizens, and able to read and write the English language. Only those potential jurors who fail to qualify under these "facial" requirements can be disqualified by commissioners; all other "excuses," they argue, require an exercise of judicial discretion by the chief judge of Milwaukee county. We disagree.
Section 756.04(2)(a), Stats., governing the authority of jury commissioners over jury qualifications, provides in part:
The commissioners shall annually before the first Monday in April provide for each court covered by sub. (1), unless the judge or judges thereof otherwise order, one countywide list of not less than 600 names of persons to be drawn from the county to serve as petit jurors. The commissioners shall revise the list by striking from it the names of persons found by them to be ineligible for jury service, as provided in s. 756.01, and add to the list the names of additional persons as provided in s. 756.05. (Emphasis supplied.)
The extent of the authority possessed by jury commissioners to strike those potential jurors found by them to be ineligible, as sec. 756.04(2)(a) indicates, is defined by sec. 756.01(1). Section 756.01(1) provides:
Persons who are U.S. citizens, who are electors of the state, who are possessed of their natural faculties, who are not infirm, who are able to read and understand the English language, and who have not been summoned to attend for prospective service as a petit juror for the time period applicable under s. 756.04(5m) within 2 years, shall be liable to be drawn as grand or petit jurors. (Emphasis supplied.)
Jury commissioners therefore can strike not only those who fail to meet the basic minimum requirements of being electors, U.S. citizens, and able to read and understand English, as appellants contend, but also those who are infirm or not possessed of their natural faculties. 1 The latter two criteria are health-related factors which allow the jury commissioners broader authority than a simple check for basic "minimal requirements."
Appellants claim, however, that judicial discretion is required as a prerequisite to excusing potential jurors from jury service. Specifically, they argue that the chief judge must exercise that discretion. They also argue that that responsibility cannot be delegated to jury commissioners. They claim that two provisions of ch. 756, secs. 756.02(2)(a) and 756.01(2), Stats., explicitly require such a construction.
Section 756.02(2)(a), Stats., provides in part:
Any person or group of persons may be excluded from the jury panel or excused from service as jurors by order of the judge based on a finding that jury service would entail undue hardship, extreme inconvenience or serious obstruction or delay in the fair and impartial administration of justice.
Section 756.01(2) provides in part:
Subsection (1) shall not exempt, exclude or disqualify a person from jury service on the ground of infirmity because of a physical condition unless the judge finds that the person clearly cannot fulfill the responsibilities of a juror.
Both sections use the term "judge." Thus, ch. 756 contains apparently conflicting language: two statutory provisions apparently require examination by the judge, while another authorizes the screening of qualifications by jury commissioners. Statutes which are in pari materia, 2 or concern the same subject matter should, if possible, be construed to be in harmony with one another. 3
This court is of the opinion that the several provisions from ch. 756 can be construed harmoniously in this case. The jury commission initially screens potential jurors under sec. 756.04(2)(a), Stats. After the potential jurors are screened, and qualified jurors are summoned for service under sec. 756.08, the jury panel is formed. Once impaneled, a judge not necessarily the chief judge may exclude or excuse members of the new jury panel at the jury orientation session on the basis of "undue hardship, extreme inconvenience or serious obstruction or delay in the fair and impartial administration of justice." Sec. 756.02(2)(a). The language of sec. 756.02(2)(a) which refers to the responsibilities of "the judge" refers to the time sequence in jury selection after the jury is impaneled, and does not conflict with the jury commissioners' initial responsibility under secs. 756.04(2)(a) and 756.01(1).
The argument that sec. 756.01(2), Stats., requires an act of judicial...
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