Gary W. Hathorn and Linda Hathorn v. James Leroy Trine and Michigan and Nebraska Transit Company, Inc.
592 F.2d 463
8th Cir.
1979
Check Treatment

*1 properly that The district court found “impede law enforce- which would mation of Jus- Instructions Department v. of portions ment efforts.” Cox the Manual of legislative tice, The FOIA sought at 1309. to withhold which the Government distinguishing “administrative mat- history, en- exemption (b)(2) constituted “law under in “law matters ters” from enforcement” matters, of which disclosure forcement” manuals, that of staff indicates context As efforts. impede would law enforcement dis- exception general FOIA such an I, supra, we held in Cox such materials implied in the lan- requirement closure manuals” part of staff “administrative (a)(2)(C). That subsec- guage subsection dis- 552(a)(2)(C) under and need § staff tion to “administrative” refers enforcement government closed law must be made manuals materials which as agency.9 Department public.7 Cox available to affirm the orders Accordingly, we Justice, district court. in the record We have examined case, the FBI affidavits artic including for reasons de ulating the Government’s the withheld materials

clining disclose camera,

and, themselves. in the manuals upon of the record

Based our examination I, we that the and our decision in Cox hold Gary W. and Linda HATHORN rulings should be affirmed district court’s Hathorn, Appellants, as follows: reasons summarized

1) The FBI Manual of Rules and entire personnel internal Regulations set forth TRINE and According- of the FBI. practices rules Company, Nebraska Transit disclo- ly, properly denied the district court Inc., Appellees. exemp- under sure of that manual Cox No. 78-1468. 552(b)(2). (b)(2), 5 tion U.S.C. § United States Court of agency 2) The record shows that describ- certain properly refused to disclose national affect ed materials which Submitted Feb. denied properly security. The district court materials.8 Cox access to those the excised 3) Our review of indicates that

the Manual of Instructions “housekeeping” as designated

those sections exempt FOIA subsection

matters under

(b)(2) are and were accurately characterized exemption.

properly withheld under the argument the affidavits provides 552(a)(2) part: conceded 7. 5 U.S.C. § withholding por- supported the Government’s (2) pub- agency, Each accordance rules, public under tions of the of Instructions Manual lished shall make available inspection emption (b)(1). copying— of access appointed counsel, ment’s Manual of Rules and sure of the under In his structions to staff that public[.] (C) those exemption (b)(2). affidavits, pro administrative [******] affidavits se brief, two manuals. conceded at oral after supported denying staff manuals examining affect challenged any Cox’s counsel also a member of the However, the Govern- Regulations argument disclo- denial Cox’s in- 9. The Government to such materials tions. exemptions restrictive close “law enforcement” (a)(2)(C) (b)(7) uals and and our reading Cox (b)(2) defend I, interpretation indicates will FOIA (b)(7) in exemptions basis of portions of staff continue lawsuits that, despite refusing of subsection those (b)(2) rely exemp- access man- upon dis- our *2 dict appellees Trine and Nebraska Transit We Company, Inc. reverse and remand for a new trial.

This arises an automobile case out of Springdale, accident occurred in which Ar- September kansas on 1975. Linda Hat- damages personal injuries horn claimed husband, Gary, damages her claimed for the loss his automobile loss of The in this consortium. sole issue juror, arises from the conduct of a Clarence Paulk, during the course of the trial. trial,

On the day Henry second Mr. Woods, Hathorns, for the counsel his cross-examination of defendant Trine. The process allowing court was in the jurors to examine certain exhibits when the following colloquy occurred:

Juror a word with Could have [Paulk]: you? your problem” Court: What is

Juror: I am afraid I have built attorney. against an Have Do not that. tell me you been able to hear?

Juror: I have able to hear. been Do me not talk to more juror. about that then. You I was are a going you you had had trouble your hearing aid not been [able] to hear the evidence you would tell me that then I would ask Alternate No. 1 all, but if you have heard it you good juror, are a qualified, through went questioning, you sides, accepted so good Now, are a all of pass and, Woods, exhibits out come copies forward we have Davis, Douglas E. Charles Davis & Instructions. these to will hand Penix, Ark., Springdale, appellants. attorneys can them and look Putman, Davis, Bassett, Walter B. Cox of then can will ask Ark., Wright, Fayetteville, for appel- that you read them. lees. and the Immediately thereafter counsel following in the discussion engaged HEANEY, Before ROSS the bench: Judges. Mr. Woods: The has stated that he PER CURIAM. — n has a Gary and Regardless Linda from an which one it Hathorn adverse upon jury entered any prejudice ver- was if there is it has been to excuse handed notation to the up during built course Clerk I will not anyway way one normal which no more than from hear the testi- states he did one might be favorable to the other. It find — mony overrule going so I am to the other. or it be favorable Now, you want Woods’ motion. I could Mr. Bassett counsel]: [defense *3 too; might a for a mistrial make motion thing. the same your make thing be to do to proper the to— I think in order complete record? make don’t want to simulta- Yes, for a mistrial we move Woods: for a mistrial —if neous motions not grounds only on not was he the for a mistrial make simultaneous motions a qualified that he did make comment but grant pro- might I it want to but presence the the case in the about record— your tect jurors which is his statement and that; suggest I not Mr. Woods: would I the contrary constitute a comment to did just suggest since we have alter- instructions of the Court about the jurors stop possibility, to any nate I don’t testimony had and before he heard like anything know what the law is on retired to he had the case and before that, just to be on the safe side I jury the room. preju- see how be anybody don’t could The Court: That also over- motion will be diced, just him— discharge ruled. The Court: You all talk about it if jury returned a verdict me to him I could seat an want excuse took this the Hathorns defendants a basis from alternate on different is presented timely appeal. The sole issue your grounds, I let but would state its discre- whether district court abused him and moved him questioned but I juror Paulk with tion in failing replace to to He trouble with the front. does have an alternate he not sure he had heard hearing, his was excuse to or Decisions whether seat it all at first but if could I jurors are the discretion within No. 1 on his could seat Alternate based be reversed and such decisions will court hearing. ruling But I he is dis- am See, e. an that discretion. abuse qualified manner. Bradstreet, Inc., 543 g., Anderson v. Dun & Bassett: it dur- think about 1976); 732, (10th Hercules F.2d Cir. 734 ing the lunch hour. 571, (1st Costa, 574 289 F.2d Powder Co. v. all think about it applied 1961). has Cir. This standard stipulate. see to you might want wide in a to action uphold trial court’s mat- Nothing said about the further was See, g., e. Ander variety of situations. fact ter until the had its case defense Inc., supra (juror Bradstreet, son v. Dun & jury. had Just instructed had she informing judge excused after deliberate, Mr. jury before the to retired an unknown talked about in a bar with trial re- again Woods moved to have Mr. Paulk be an man who was later discovered placed with Defense counsel an alternate. Koppinger v. employee of Cullen party); opposed following dis- the motion and the (8th Associates, Cir. Schiltz cussion occurred: (mistrial denied after motion agree- In of an the absence had Marshal informed court that he States I will ment I will overrule motion. person sitting in told a courtroom just this to be this and I want company); was with an insurance connected record; I had this go should this Metropolitan Paving Co. v. Int’l Union of problem last time we (10th with Mr. Paulk the Engineers, 439 F.2d 300 Operating denied, were and I made a notation Cir.), had 404 U.S. cert. S.Ct. neglect- union, (1971) (in against excuse suit him from the 30 L.Ed.2d 58 as soon as give after he was overheard ed to it to the Clerk excused jury little after that he did not want he was in this case job but I have union done feared because realized what I had Co., member); those at bar Cisneros v. Cities Service Oil has been held to be an abuse (2d 1964) (juror of a 334 F.2d 232 Cir. discretion. Procedural control civil tri- does, al prior necessarily requiring, cluded after he informed court of con- as it evalua- expert witness); clearly tion of human factors is committed tacts with defendant’s (court discretion of the trial court. It in- appel- volves considerations with did not excuse who had which an conversed late court ill-equipped to deal. employees with one of defendant’s in court corridor). 274 F.2d 110 hindsight On be conceded that it 1960) (new trial motion based on would have been wiser for the district court truthfully failure to answer voir dire to have seated an alternate or to have con- question denied); Morrison v. Ted Wilker- ducted examination Mr. some further son, Inc., (W.D.Mo.1971) 343 F.Supp. 1319 Paulk the extent of in order to ascertain (same); Lay v. J. M. McDonald *4 no one asked the problem. Yet (D.Colo.), dismissed, F.R.D. 36 appeal an examination. trial court to conduct such (same). showing no clear Thus the record contains reversing prejudice this court Although the court’s discretion in possibility mere broad, this field is the exercise of that dis have resulted. cretion must be informed. In each of the above-cited cases where the court did not join I cannot opinion of the court excuse the whose impartiality was or in the judgment. reversal of questioned, the court had conducted an in terrogation of the per and/or other

sons with knowledge of the incident and

satisfied itself that no would ac

crue to parties if the remained a panel.

member of the Koppinger v. Cullen- Associates, supra, 910; Schiltz & 513 F.2d at COLUMBUS, a KNIGHTS OF Cisneros v. Cities Service Oil corporation, Appellee, 233; F.2d at supra, 289 F.2d at 574. WIRTZ, Virginia Wirtz, Arthur M. W. supra, 274 F.2d at 116 — 17. proce No such Wirtz, and William W. Arthur M. dure was followed here. The result is that Wirtz, Jr., Appellants. parties and this court are left in the dark as to what Mr. Paulk meant when COLUMBUS, OF KNIGHTS he made his statement to the court. Be corporation, Cross-Appellant, cause his statement could mean that an attorney’s conduct impossi had rendered it WIRTZ, Virginia Wirtz, Arthur M. W. ble for fairly to decide the case based William W. Wirtz and Arthur M. law, on the facts and we cannot that no Wirtz, Jr., Cross-Appellees. prejudice resulted from continuing serve panel.1 on the 78-1591, Nos. Accordingly, is reversed States Court

and the case is remanded for a new trial. Submitted Jan. Judge, dissenting. The parties have cited and research dis- closes reported no where a civil case district

court’s decision to exclude or not to exclude

a juror comparable circumstances Appellees contend that the evidence on liabil record on and we are not are thus ity overwhelmingly in their favor. The unable to make such a determination. transcript dealing liability