*1 MALVO, on Alice behalf Alton and minor, Malvo, Appellants, Paula COMPANY, INC., C. PENNEY Appellee.
No. 1630. Alaska.
July
teenagers
shopping
were
for identical en-
sembles in
sportswear department
Baxter,
security
where
employee
Susan
Investigations,
with O’Neill
duty.
was on
Although
personnel
sales
duty,
were on
none
teenagers.
assisted the
Paula and her
*3
friends
trips
made several
into the dressing
rooms at the same
per-
time
two other
sons
using
were
girls
rooms. After the
purchases,
had made
security guard,
Baxter,
alleges
who
she was
*4
luctant
Knight,
to interfere.
In Mitchell v.
BASED ON DEBTOR-
CAUSE
(Alaska
394 P.2d
1964), with ref
BE-
RELATIONSHIP
CREDITOR
challenge
juror’s
erence to a
that a
state of
PEN-
AND C.
TWEEN JURORS
J.
prevent
mind
rendering
him from
a
NEY
verdict,
just
stated:
we
issues have
raised
A number of
been
places
Rule
ju-
47(c)
Civil
the determination
the
of the
with reference to
selection
challenges
for cause in the
Challenges
on debtor-creditor
discretion
based
ries.
judgе.
of the trial
jurors and
Pen-
We shall interfere
relationship between
C.
J.
with the
exercise of that discretion
47(c)
sets
ney
Rule
were overruled.
exceptional
containing
pre
circumstances and tO'
paragraphs
forth 13 different
miscarriage
justice.2
vent a
challenges
Many
for
grounds for
cause.
(8)
person
(c)
That
the
a
:
was called as
Rule 47
states
Alaska Civil
juror
Challenges
and excused either for
or
Cause. After the ex-
cause
for
previous
peremptorily
jurors
prospective
a
trial
of the
amination of
pleted
is com-
action,
any juror
sworn,
same
or in
the
another action
and before
is
parties
may challenge any juror
parties
same
for
the same
cause
the
for
juror challenged
action.
cause. A
for cause
(9)
every
person
ques-
That
the
is related within
be directed
answer'
(civil law)
inquiry. Every'
pertinеnt
the fourth
decree
con-
tion
challenge
sanguinity
affinity
or
to one of the
shall be determined
for cause
parties
attorneys.
following
grounds
or
the
are
court.
(10)
person
guardian,
challenge
That
the
is the
for
for cause:
ward,
landlord,
tenant, employer,
(1)
person
qualified
em-
That
the
partner,
ployee,
client, principal, agent,
juror.
law to be a
family
debtor, creditor,
(2)
person
or member of the
the
for or
That
biased
party
attorney.
attorney.
party
of a
or
or
(11)
person
(3)
person
That
the
is or has been
That
shows a state of
party
challenging party
prevent
adverse to the
him
ren-
mind which will
dering
attorney
action,
just verdict,
or
a civil
or has
or has formed
complained
positive opinion
been
him in
the case
of or
accused
on the facts of
prosecution.
be,
a criminal
or as to
the outcome
what
should
person
try
(12)
disregard
opinion
That
has
financial
cannot
such
taxpayer
impartially.
interest
than that of a
other
issue
(4)
person
opinions
in the
of the case.
or
outcome
That
has
(13)
person
scruples
im-
was a member of
That
conscientious
which would
jury returning
grand
properly
indictment
influence his verdict.
(5)
person
in the cause.
That
has been sub-
poenaed
as a witness
the case.
already
(6)
person
appellant
challenged
2. In Mitchell the
had
That
has
sat
upon
juror
grounds:
a trial
the same issue.
for cause on two
person
relationship
(7)
(1)
That
has served
that a debtor-creditor
grand
juror
juror
ap-
petit
or
in a criminal case
existed between the
pellee’s counsel,
sale of
based on the same
because of the
transaction.
grounds
client,
challenge
ployee, partner,
agent,
for
set
principal,
Other
debtor,
47(c)
solely
creditor,
forth in
based
on a
Rule
are
or member
family
attorney.
determination as to whether certain factual
of a
or
(Emphasis add-
instances, once
ed.)
exist.
In those
situations
established there is no'basis
facts
presented
facts
Once
have been
establish-
for
to be
discretion
exercised
ing
relationship
such a
juror
between the
judge. Thus,
47(c)(1),
(7)
Rule
(5), (6),
party,
and a
grounds
challenge
for
(8)
challenges
establish
for
Accordingly,
met.
been
failure
for
person
cause
it is
that a
shown
grant
challenge
for
qualified by
a juror,
law be
has
those
re-
jurors who had
debtor-creditor
case,
subpoenaed as a
in the
witness
lationship with
was error.
person
upon
already
a trial of
has
sat
Moreover,
say
we cannot
this was
issue,
person
same
that a
served
City
error”
“harmless
within the rule of
grand
petit
juror in
criminal
Ipalook,
Kotzebue v.
clearly the trial grant must II. RACIAL ALLEGED DISCRIMINA- challenge. the TION IN SELECTION JURY jury person. Neither a contained black In each jurors trial one or more argues “pri- on that a appeal Malvo this is outstanding who had balances on their J. “systematic ma facie” case of inten- and charge were challenged accounts tional peers exclusion” of her be a so as to for (10) Rule 47(c) cause. of the Civil right violation of the constitutional to a provides pertinent part: Rules in jury trial. following are for chal- lenge for cause: It the well established that
right an impartial jury guaranteed (10) person guardian, proceedings That the the criminal sixth the ward, tenant, landlord, employer, em- amendment United the States Cons policy prevent rendering will the insurance from which the which him a from juror just receiving was commissions based on . verdict . . .’’It this was to challenge paid by premiums language counsel’s law- that we addressed our partnership [challenge concerning given based on Civil discretion to be (c) (10), ; (2) supra] judge; and on the Rule 47 ground the trial and we held that since juror’s juror clearly that statement that had “felt stated that lie impartial, be he would more conservative than he could be fair and would juror justifiable award, normal a mind a he revealed state of allow and that prevent rendering which him from follow would would court”, instructions omitted.) just (Footnotes showing there verdict. was no of an abuse denying at 394 of discretion court Mitchell P.2d 897. regard ground, challenge, especially light With to the first we held of the clearly judge’s opportunity juror that was no listen debtor-creditor relationship meaning within the of the and observe his demeanor. money “juror owed no rule since by appellee’s 3. counsel.” The second chal- that case we that it was harm- held challenge lenge 47(c)(3) deny based on Rule less error for Civil cause provides challenge appellant ground for failed to as a where had exhaust “ granted juror peremptory challenges prospective of a cause: under person 47(d). a state of mind That shows 580 898-899, 11, Alvarado, supra, at 1, section 486 P.2d
titution4 and article “in jury the method of which is reali the Alaska Constitution5 embraces selection subterfuge sys constituting' ty juries jury to exclude concept of trial community”. tematically cogniza intentionally If fair of the some “cross-section group ble citizens in the prospective jurors not drawn from class of com “cross-section”, munity” clearly invalid.6 Green v. that fair the constitutional State, 994, (Alaska 1969), Alvar P.2d cit impartiality is not met. standard of States, State, 891, 201, 322 F.2d ing 486 P.2d Chance v. United ado v. State, (5th 1963). 462 P.2d Cir. 1971). also Green v. See “con (Alaska 1969). Although solely argument her on the Malvo rests cross of the commu tours of fair section fact there were blacks either no and, . nity are elusive indeed jury. court7 nor the neither While definition”, susceptible precise clearly be Court8 has United States jury and, United States 4. amendment to the The sixth than less three-fourths provides: may provide record, Constitution courts prosecutions, jury criminal the accused speedy In all than of not than six more less right enjoy shall twelve. trial, by impartial jury public specify guarantees an those two do not While juries “impartial” shall district the crime wherein State must eommited, explicit adopted by shall which district have been the sixth tire manner previously law. ascertained section amendment article Constitution, the Alaska we indicated 5. the Alaska Con- Article section Pearson, Bachner v. P.2d 333- provides: stitution (Alaska 1970) (dicta) con prosecutions, In all criminal the accused stitutional test both civil criminal speedy right to a have the shall public trial, trials embraces “fair cross-section” impartial standard, and that the failure to meet that standard process denial of due we held a failure to In Alvarado in a civil as well as criminal *6 provide Moreover, argues an a criminal defendant with Malvo action. since jury prima impаrtial in a viola- addition to that she has made a facie out the sixth amendment of United of blacks tion of the intentional exclusion of 1, jury, section States article the tentions, if she were correct in her Constitution con protection 11, Constitution, equal of Alaska a denial denial of right process of the constitutional to due amendment to the under fourteenth Alvarado.) (See 1, n. 20 law. United States Constitution article 1, of Alaska section Constitution jury right 7. to a trial certain civil necessity bo shown without guaranteed amend- is the seventh trials applying “fair the broad cross-section” ment to the United States Constitution process standards of Alvarado and due 1, 10, section of the Alaska article Pearson, supra, v. Green. See Baehner Constitution. Louisiana, at 29 v. text n. and Eubanks United The seventh amendment 585-589, 970, 584, 2 356 78 S.Ct. U.S. provides: States Constitution (1958). 991-995 Thus Malvo L.Ed.2d jury Trial in civil eases. In suits l>!/ meeting her had been successful in burden law, at common where the value con- proof of intentional and on issue troversy twenty dollars, shall exceed systematic blacks from the exclusion of right jury preserved, shall be prevailed jury venire, might she on jury and no fact tried shall argument equal protection without an any otherwise re-examined in court of necessity establishing that the same States, according the United than apply process to both civil standards due rules of common law. jury and criminal selections. 10, 1, Article section of the Alaska Con- Supreme provides: 8.Although stitution States United Suits; by Jury. Pa Trial indicated in Thiel v. Southern In civil 984, controversy Co., 220, 217, 66 S.Ct. cases where the 328 amount cific U.S. 1181, fifty dollars, 985, that: L.Ed. exceeds two hundred right 90 1184 by jury, jury of trial The American tradition of of twelve preserved either with same extent it ex- considered connection necessarily prоceedings, legislature criminal or civil contemplates at common isted may law. The jury provision impartial drawn make for a not verdict
581
proof necessarily being
standard
of fed-
held that the “fair cross-section”
matter
trials,
compelled in
eral
constitutionally
(Citations omitted.)
civil
law.
case,
her
in the instant
Malvo has not met
208,
The court went
at
on to note
380 U.S.
“systematic
and inten
proving
burden of
829,
85 S.Ct.
13
766:
L.Ed.2d
strict
tional exclusion” even under the
defendant in a
is not
criminal case
[A]
impartiality.
criminal trial standards of
constitutionally
pro-
entitled to demand a
portionate number
his
race on the
for a
Under such standards
consti
jury which tries him nor on the venire
it is well
jury,
tutional defect
exist in a
petit
or jury
jurors
roll from which
choosing the
settled that
method of
‘[Sjince
drawn.
.
.
.
there can
jury
purposefully
one that
must be
Negroes
no exclusion of
as a race and
por
systematically excludes an identifiable
color, pro-
discrimination
no
because of
suffi
community,
and it
tion
permissible.’
portional
is not
limitation
particular
simply
cient to show
(Citations omitted.)
repre
include a
jury
question
does not
segments
from all
of the local
sentative
recognized
While the courts have
Alabama,
population.
U.
Swain
practical
may
way
litigant
that the
827,
824,
202, 205,
13 L.Ed.2d
85 S.Ct.
S.
prove systematic and intentional discrimi
759,
United States
(1965), the
by showing
nation is
a consistent lack of
Court held:
proportional representation through proof
[Pjurposeful
objective
jury
discrimination
be of
results of the
selection
merely
process,9
It
proof
assumed or
asserted.
.
.
these
all
cases
involved
proven,
quantum
objective
long period
must be
.
results over
of time
9. In Hernandez
U.S.
system
lending support
they
ministrative
both the Smith
civil
cept
a civil
United
its
74 S.Ct.
constitutional
tablished
al standards.
a “fair cross-section”
(1935)
were
from a cross-section of the
of
that none
service
Glasser
85,
Smith v.
[707].
authority
substantial
holding
were
of denial of
and criminal
S.Ct.
rested their decision on
States
and did not
qualified
jury
.
jurisdiction,
over an extended
667,
S.Ct.
*7
based on constitutional
(Emphasis added.)
55 S.Ct.
This
proof
stating
164, 165,
powers
Texas,
United
for the
had been called
must also be
issue
583 However, membership with his state someone on policy.12 ed mind, On that he would be concerned. indication organization some in such an as to incapable questioning, he was evasive further challenged juror that the membership oath the racial nature of im- his duties free from discharging bias, had of the he taken. where one proper influences or is a class parties in the member People readily admit do not criterion. such a restrictive excluded bias, prevent of mind that the ren states prospective juror is chal- such a Where opinions dering just verdict or which cause, it is incumbent on lenged for improperly verdicts. influence their appropri- satisfy himself judge Generally from nuances derived observing juror’s questions ate judge jurors’ testimony capa- demeanor, person is in fact that the such may ascertain whether impartial just ver- rendering ble an Particularly challenges for cause exist. then within a determination is dict. Such prospective juror belongs to an or when spoke in Mitchell v. the discretion we ganization systematically excludes is suffi- Knight, supra, and where there suit, race of a members show that in the record to cient evidence to some judge the trial must be sensitive adequately performed judge the trial has bias, indicating times inferences subtle duty, we will not interfere. opinions states of could af mind which case, In the instant evidence just juror’s ability fect the to render first trial the had a rational that it was light In this we hold verdict. denying the chal- and factual basis deny the chal an abuse of discretion stat- lenges. challenged jurors of the One juror to whom lenge for cause as to the although he a member of the ed that we last referred. Elks, specific disagreement he was testi- Caucasian-only policy. its The other THE FAILURE TO INSTRUCT IV. member of the fied that he was an inactive AGENCY ON Moose, any racially re- was unaware of trial, During pres the first in the has policy, and that he himself strictive jury, stated ence the court below 18 been married to non-Caucasian correctly that would be vicar C. trial, however, there years. the second J. Baxter, iously liable for the acts of Susan in the record. is no such reflection merely security guard, whether she was juror a member of the Shrine who was contractor, independent employee an anof he type oaths refused to describe the Investigations, agent an of C. O’Neill organization joined taken when he had J. However, Penney.13 at both trials as “an that he considered blacks stated judge gave following thé instruction: far as aspects, but not as equal, some belief, Although he .” the Masonic No. 9 be im- that he felt that he would testified corporation Penney Company is a partial involving a member of in trial of- only through and as such can act its race, testified that he black he also omis- employees. Any act or plaintiff there was ficers and knew that black ” organization] context, resort to violence.’ 12. In a similar the United States States, 290, recognized in Noto v. United U.S. 81 Scales 367 1517, (1961) ; States, L.Ed.2d S.Ct. 836 United 367 U.S. cf. Whitney California, 1469, 1486, U.S. L.Ed.2d S.Ct. (1927). person may although L.Ed. 1095 S.Ct. organization dedicated member of recognized United 13. It is well that a store owner overthrow of the to the violent *9 employees government, must be is liable for the acts of or there still States scope ‘specifically agents acting proof within the of their au- that a defendant “clear thority protect property accomplish the the or aims of to owner’s [the intend to [s] 584 an employee of within the apt
sion officer or is still confusing statement to scope is, authority employment of his misleading ambiguity or due to as to law, the act or of such cor- employee omission referred instruc- to. Since the poration. Penney tion that C. could act J. employees through implies their or officers many during There were references agents employees independent that or of trial pertaining employ- to Baxter’s Susan included, contractors not it is mis- ment status. testified that She twice she prejudicial statement of the error. law employed solely by Investiga- O’Neill judge that on remand We hold tions, and this was C. Pen- stressed J. should with to instruct reference ney. judge The trial dis- questions asked imposed liability agent for acts an or of tinguishing employment Pennеy C. J. independent employee of an contractor.14 Investigations. Although and O’Neill up mat- some effort clear to ter when the stated: V. THE REA- INSTRUCTION ON Dickerson, Mrs. has ruled that DE- A SONABLE CAUSE AS Investigation even O’Neill was an in- TO IMPRISON- FENSE FALSE dependent contractor that nevertheless MENT employee the acts of their would be—or Penney’s rather C. be vicarious- issue On the a de- reasonable cause as J.
ly employee. liable for- the act of imprisonment by their fense false Principal’s Annot., Penney liability. merchandise. See Lia- to insulate J. C. bility Imprisonment duty for False Arrest or The of a store owner not to slander by Agent Servant, by attempts protect prop- Caused or A.L.R.2d 92 to his customers (1959). Liability Annot., erty delegable independent 15 See also is not to an Principal alleged Master or for Servant’s or where the contractor acts vio- to Agent’s duty scope Libel or Slander of Onе Other are within late Agent performed. Thus, Than Servant or or Servant Former usual to be services Agent, (1943). Penney 150 1338 The A.L.R. could not J. C. avail itself applies “independent same rule to intentional torts of contractor” with defense employees independent per- respect alleged contractors to either the intentional forming imprisonment alleged similar functions. tort of false or the duty of its breach to slander Paula imprisonment tort, False is an intentional Malvo. and while courts have an em- held that ployer may Penney negli- argues not be liable for certain 14. J. since no formal gent employee private objection acts of an aof was made in- Malvo to the security agency “independent under other than struction the submission of doctrine, they trial, contractor” or have also rec- alternate instruction the first ognizеd duty public preserved appeal. owed to the issue is not seeking protect 51(a) provides part: store owner his Civil Rule property may nondelegable assign giv- certain No as error the Liability Annot., ing give circumstances. See the failure an instruction Contracting objects ju- One Security for Private Police or unless he thereto before the ry verdict, Service for Acts of Personnel retires consider the stat- Supplied, distinctly (1970). ing 38 A.L.R.3d See 1332 the matter which ob- he (1959). jects objec- also Annot. 92 A.L.R.2d 19 § [b] for this question There is no but that tion. responsible is gations’ for acts of Investi- O’Neill case must be Since the remanded employees allegedly involving event, question need not rule on we imprisonment. intentional tort of false whether error is so as to substantial alleged presents injustice requiring slander more dif- result reversal issue, notwithstanding 51(a). ficult since slander neces- Contrast sarily City Kodiak, an intentional acts tort. The 796 Bolden v. 439 P.2d (Alaska 1968) ; Harris, it contended constituted the con- slander Saxton v. 395 escorting ; plaintiffs (Alaska 1964) sisted manager’s P.2d 71 Mitchell open through Knight, (Alaska office P.2d areas 10 n. public. 1964) ; Gouldsbery, Cir., These so inex- acts were Novick v. tricably protective entwined with the F.2d Alaska 275-276 agency’s Faltin, functions for which the services P.2d Merrill v. permissible 1967). were secured that is not *10 shopkeeper, strong trial court instructed the authority the While there is that the best method jury: of instructing jury in this the special
situation is to submit
interrogato-
asking
ries
them
if
to determine
the facts
No. 26
Instruction
constituting reasonable cause exist so as to
may,
pur-
property
The
for the
owner of
the possibility
avoid
jury
that the
will in-
restrain,
pose
it,
protecting
for a rea-
province
vade the
of the court and
amake
manner,
and in a reasonable
sonable time
legal
cause,15
as
decision
to
is
reasonable
investigation,
purpose
one
the
well established that:
probable
whom he has reasonable
number and form of issues sub-
[T]he
his
stealing
property.
cause
is
to believe
mitted way
special interrogatories,
they,
if
along with the instructions to the
Instmction No.
jury fairly present
questions
the ultimate
determined,
fact
is
grounds
To
reasonable
the
matter
constitute
resting in
case,
the sound
plaintiffs in
discretion of the
detention
judge.
Cushman,
con-
Patterson
must establish that the
evidence
P.2d
(Alaska 1964).
665 n. 26
plaintiffs
(Ci-
duct
defend-
observed
tations
ant,
omitted.)
employees, agents
through its
servants,
give
as to
defendant
such
was
Thus we are to determine not what we
plaintiffs
con-
had
reasonable belief that
might might
or
not choose
the best in-
upon
persons
their
cealed merchandise
struction,
given
but if the instructions
adе-
paid
that
not been
for.
had
presented
quately
the fact
issues to the
you
If
find from all of
evidence
jury.
true, you
facts are
foregoing
regard,
In that
we believe that the
must find that there was
reason-
[sic]
instruction
adequate.
was
recognize
We
plaintiffs.
grounds
able
to detain
problem
shoplifting
tremendous
you
If
such facts are not
find that
presents
contemporary
merchant.
true, you
that there
find
must
[sic]
store, patrons
ready
In the modern
to detain them.
reasonable
items,
access to
lit
hundreds of
often with
supervision
person
tle
store
or contact
argues
(1)
Malvo
that this
error since
a purchase
nel until
is
Thus
made.
spe-
the trial
have submitted
should
owner
strike a
store
must
reasonable bal
interrogatories
jury asking
cial
them
ance between feasible surveillance of cus
establishing rea-
to determine if
facts
tomers,
and the
inventory сontrol
threat
proved
give
so as to
sonable cause were
instruction,
suspect’s privacy.
The
as to
con-
jury explicit guidance
what
placed
necessity
on
the store owner
in-
cause, and
stitutes
(2)
reasonable
having a
belief that
“.
reasonable
place
structions
burden
do
plaintiffs
had
merchandise
concealed
store
measures
owner to take reasonable
upon
adequately conveyed
their persons”,
missing
ascertain that merchandise
take
duty
owner to
reason-
store
initiating
suspect before
concealed on the
acting.
able
measures before
detection
detention and search.
approved
Inc.,
the court
Payless Drug Store,
method
Stienbaugh
they
jury
find
instruct
(1965)
P.2d
75 N.M.
questions
prop-
of fact
determine certain
Penney, 233
Or.
Lukas v. J. C.
erly
to them to
true
submitted
state
the func-
ney’s
manifestly
fees was
unreasonable.
face, may
process
offend due
because it
(Footnotes omitted.)18
operates
particular
to foreclose a
party’s
Under this
opportunity
standard we feel
it
is
to be heard. The
ob
State’s
“manifestly
ligations
automatically
unreasonable”
to
under the Fourteenth Amend
award the full
of attorneys’
ones;
amount
fees
ment
not simply generalized
rather,
prevailing-party.
incurred
the State owes to each individual
process which,
light
in
of the values
Alaska,
In
Agency
Preferred General
a
society,
free
can be characterized as
Raffetto,
951,
Inc. v.
391 P.2d
954 (Alaska
due.20
1964),
court
policy
announced its
that:
We do not have to reach the constitu-
purpose
in provid-
of Civil Rule 82
tional issue since it is “manifestly unrea-
ing for
attorney’s
the allowance of
fees
policy
sonable” to establish a
under Civil
partially compensate
prevailing
to
Rule 82 that would enable a store owner to
party for the
has
costs to which he
such a
receive
sizeable
allowance
attor-
put
litigation
in
in
which he was in-
ney’s
against
fees
a party
brought
who
designed
volved. The rule was not
to be
good
suit in
faith.
in-
Nor did the suit
used capriciously
arbitrarily,
or as a
complicated
volve such
legal
factual and
is-
accomplishing any purpose
vehicle for
sues
such substantial sums money
compensation
other than providing
where
justify
to
such fee to
awarded
omitted,
it is justified.
empha-
(Footnote
litigant.
an unsuccessful
added.)19
sis
danger
Benjamin
was
This
described
If a
litigant
successful
were to receive full
in a
stating:
N. Cardozo
letter
expenses
reimbursement for all
incurred
requirement
no
justifica-
prepared yet
I am not
to advocate costs
tion and
“good
no consideration of the
compensate
expenses
that would
for the
faith” nature of
party’s
the unsuccessful
enough
of a lawsuit.
I have seen
defense,
claim or
there would be a serious
judicial process
imperfec-
to know its
system.
detriment
judicial
to the
For
lay
heavy
I
tions. would not
too
a bur-
where in
judicial remedies,
order to seek
upon
litigant.
den
the unsuccessful
plaintiff
liability
must risk
for the full
Some of the losses that are
to
incidental
amount
attorney’s
fees the other side
rights
the establishment of
and the -re-
incur,
sees fit to
it
imagination
takes little
wrongs through
processes
dress of
to foresee
party’s
that the
of a
size
bank
allowed,
courts
should be
matter of
impact
account will
his
major
on
engineering,
social
they
to lie where
fall.
access tо the courts.
Very likely, heavier burdens should be
Liberty Leasing Co.,
18. Bee also DeWitt v.
possi-
open
20.The
court
Boddie left
(Alaska 1972)
499 P.2d
bility
601-602
that states could condition
access
language
applied
where the
rights”
same
civil courts for “non-fundamental
54(d).
the award of costs under Civil Rule
monetary requirements.
on
Part of the
right
decision rested on the fact that
language
19. We have cited this
on other
only
divorce could
be exercised
Liberty Leasing
occasions
v.
DeWitt
through
system,
the court
and the fees
Co.,
;
1972)
499 P.2d
question
litigant
paid
had to be
before
Connelly
Peede,
ERWIN did participate. tory challenges.1 For here the dis- record twenty-two closes prospective' that of the WITZ, RABINO (concur- Chief Justice jurors questioned trials, at one of the four ring). were members the Elks Moose concur in I the result reached in the case agree at bar and with the court’s treatment Lodges. Contracting Co., Davis, In justified 21. disallowing particular Inc. M-B be (Alaska 1965), unnecessary 399 P.2d involving special a case items on costs bill (Citations litigation. omitted.) considerations under the to the Compensation (AS Alaska P.2d, Workmen’s Act at n. 13 602. 23.30.145), we stated: 47(d) 1. Rule of Alaska Rules of Civil might This is not a situation provides pertinent part: Procedure injured have been said that em- juror peremptorily . A. chal- ployee appealed on frivolous lenged is excused without cause. Each penalized by and should therefore be party may сhallenge peremptorily attorney’s taxation of an fee jurors. him. Rule 94 of Alaska Rules Civil Proce- DeWitt, supra,, provides: we said: dure designed, We do not decide whether a denial of These rules to facilitate justified justice. They all costs would be an extreme business and advance prevailing party dispensed case of a vexatious un- relaxed reasonably prolonging litigation court where it shall substantially increasing the costs. The manifest court that a strict adher- injustice. in such a case would at least ence to them work will notes keeping piece paper, lost, on a later notified a suspected clerk that she she need help. her Susan Baxter then found two empty hangers room, dressing in the noti- girls fied three “security” she was blouses, and could not account for two girls asked the three and the go mother to upstairs. guard The motioned for the clerk to fol- low her group proceeded and the to the el- guard evator with the and the clerk at the Although dispute rear. there is some as to presence patrons in the other imme- vicinity, undisputed diate it is way they to the elevator encountered some teenage boys they up- and when arrived Ashley Sylvia M. Dickerson and L. stairs, boys were chided Short, Anchorage, for appellants. Hillier, manager, them. a store was also Jacobus, Hughes, Kenneth P. Thors- upstairs and stood at the door of the office ness, Lowe, Clark, Anchorage, Gantz & girls where were searched. After the appellee. closed, guard office door asked the girls drop and found their blouses no OPINION concealed merchandise. No effort was RABINOWITZ, Before J., and apprehend C. made to search or the other BOOCHEVER, CONNOR shoppers alleged in the dress- to have been JJ. ing incident, rumors rooms. After shoplift- girls having stopped BOOCHEVER, Justice. ing pastor reached the of their church and This case arises from civil action for schoolmates. girls’ imprisonment pre- false slander. incident was the detention and cipitating forth complaint setting A filed questioning teenage girls by of three black imprisonment. false claims slander and security employee Investiga- of O’Neill jury An initial trial resulted a defense suspected tions at shoplifting who them of slander claim and divid- verdict as to the Penney Company’s Anchorage C. J. Upon imprisonment. jury ed false as to store on Appellant, December rendered a defense verdict retrial Malvo, Paula group. was a member of that impris- remaining claim of false appears Paula, It teenage three awarded The trial onment. friends, girls $10,504.20, and the of at- mother one of the the full amount entered the shop. requested store to under torney’s Three of the fees policy announcing that as matter of those involve value judgments Thus, part granted judge. should be his on the of the trial defendant sub- successful attorney’s paragraph pertains bias, incurred the ex- (2) (3) actual fees deals they person’s are reasonable. with the state mind will tent that verdict, prevent just rendering him from Malvo, appealing Paula opinions refers to or conscientious verdicts, alleges rendered on both judgment scruples improperly which would influence Three of eight specifications of error. his verdict. dispositve appeal, those of this issues points we reach those additional challenges It is well settled that possible be resolved to avoid which must 47(c), under Rule cause based on such on remand. errors grounds, are within the sound discretion of judge, the trial with which we are most re FOR CHALLENGES OF I. JURORS