Rocha v. King CountyRocha v. King County
- Reporters:
- ,
- Before:
- Johnson, González (en banc)
FACTUAL AND PROCEDURAL HISTORY
Jurors have been provided payments pursuant to statute since 1881, before Washington became a state. CODE OF 1881, § 2086.
Historically, courts have struggled with poor juror summons response rates, which is a complex problem with many contributors, including undeliverable summons and low juror reimbursement. Studies have been conducted and recommendations made to address the low juror response rates. In 2000, the Washington State Jury Commission recommended that “legislation should be drafted requiring that current fees be raised, with the increase funded by the state.” WASH. STATE JURY COMM’N, REPORT TO THE BOARD FOR JUDICIAL ADMINISTRATION x (July 2000), https://www.courts.wa.gov/committee/pdf/Jury_Commission_Report.pdf [https://perma.cc/4AVL-6YNV]. In 2006, the legislature authorized a research project in select jurisdictions to assess whether increasing juror expense reimbursement to $62 per day plus mileage reimbursement would improve juror turnout. LAWS OF 2006, ch. 372, § 903. While the pilot project did not significantly improve juror turnout, the project also found that most jurors who did not respond or serve were unaware of the increase. WASH. STATE CTR. FOR CT. RES., JUROR RESEARCH PROJECT: REPORT TO THE WASHINGTON STATE LEGISLATURE 4 (Dec. 2008), https://www.courts.wa.gov/subsite/wsccr/docs/Juror%20Research%20Report%20Final.pdf [https://perma.cc/CWF4-ULVH].
In 2016, petitioners filed this class action complaint in Pierce County Superior Court asserting claims against King County alleging that (1) jurors are employees and entitled minimum wage and (2)
Factually, in 2012, petitioner Bednarczyk was summonsed for jury duty in King County and sought and received a hardship excusal from jury service.5 In 2015, Selin was summonsed and served 11 days of jury duty in King County. Selin was self-employed. Selin would have received $110 plus mileage reimbursement at King County’s current reimbursement rates.
Petitioners were included in the master jury list from which King County randomly selects citizens for jury duty.6 No challenge is asserted concerning the methodology used to compile the list.
The superior court granted King County’s motion for summary judgment and dismissed petitioners’ claims. Petitioners appealed. The Court of Appeals affirmed in a 2-1 decision, holding that petitioners lacked standing under the UDJA, there was no implied cause of action for disparate impact, and jurors were not employees under the MWA. Judge Bjorgen dissented, opining that petitioners met their burden of standing and that an implied cause of action existed for disparate impact. The dissenting opinion did not address the MWA issue. Rocha v. King County, 7 Wn. App. 2d 647, 435 P.3d 325, review granted, 193 Wn.2d 1017, 448 P.3d 664 (2019).
ANALYSIS
We review orders of summary judgment and statutory interpretation issues de novo. Summary judgment is proper if, viewing facts and reasonable inferences in the light most favorable to the nonmoving party, no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Bostain v. Food Express, Inc., 159 Wn.2d 700, 708, 153 P.3d 846 (2007).
I
First, we address whether petitioners have standing under the UDJA. We find that standing is satisfied for the purpose of analyzing the claims asserted.
Standing is determined by a two part test: (1) whether the interest sought to be protected is “‘arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question‘” and (2) whether the petitioners have asserted “‘“‘injury in fact.“‘“’ Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake, 150 Wn.2d 791, 802, 83 P.3d 419 (2004) (emphasis added) (internal quotation marks omitted) (quoting Save a Valuable Env’t v. City of Bothell, 89 Wn.2d 862, 866, 576 P.2d 401 (1978)). When we are faced with an issue of significant public interest, standing is analyzed in terms of the public interests presented, and we engage in a more liberal and less rigid analysis. See Farris v. Munro, 99 Wn.2d 326, 330, 662 P.2d 821 (1983).
Standing for the petitioners’ UDJA claims is premised on the existence of the statutory rights petitioners assert. Because we must analyze the merits of petitioners’ arguments to determine whether petitioners have rights that could be asserted in a UDJA claim, standing is satisfied for the purpose of analyzing these claims, and we reach the merits.
II
We next address whether jurors are employees for the purposes of minimum wage. While the minimum wage and implied cause of action claims are related, our analysis of the implied cause of action claim depends somewhat on our resolution of whether jurors are employees under the MWA. We find, on several grounds, that jurors are not
Turning to the statutory provisions, cases involving statutory interpretation analysis begin with the statutory language. The MWA defines “employee” broadly as “any individual employed by an employer” and defines “employ” as “to permit to work.”
[a]ny individual engaged in the activities of a[] . . . state or local governmental body or agency . . . where the employer-employee relationship does not in fact exist or where the services are rendered to such organizations gratuitously. If the individual receives reimbursement in lieu of compensation for normally incurred out-of-pocket expenses or receives a nominal amount of compensation per
unit of voluntary service rendered, an employer-employee relationship is deemed not to exist for the purpose of this section.
Petitioners contend that this exception applies only to voluntary employees rendering gratuitous services, partially relying on legislative history. See Appellants’ Am. Opening Br. at 36-39 (Wash. Ct. App. No. 51823-6-II (2017)). The second sentence of the above provision details circumstances where the employer-employee relationship does not exist. Contrary to petitioners’ assertion, this clause supplements the meaning of “employer-employee relationship” rather than applying to only the gratuitous services portion outlined in the first sentence. While the meaning of this provision may have its roots in reaching voluntary employees, the meaning is also reflected in the statutory language used.
The structure of this provision establishes that “voluntary” applies only to the nominal compensation clause and does not apply to the reimbursement clause because the two clauses repeat the word “receives” and are separated by an “or.” The statutory language in
In further support of their argument, petitioners rely on our decision in Bolin v. Kitsap County, 114 Wn.2d 70, 71-72, 785 P.2d 805 (1990), where we held that a juror who was injured in a car wreck driving home from jury service was an employee acting within the scope of employment and entitled to benefits under the Industrial Insurance Act (IIA),
Our holding in Bolin was not so broad as to extend outside the confines of the IIA. Bolin focused on the specific language of the IIA and how the IIA “list[ed] only employments excluded,” citing
Petitioners assert further that applying the “economic realities test” for employment from Anfinson v. FedEx Ground Package System, Inc., 174 Wn.2d 851, 281 P.3d 289 (2012), would result in the MWA applying to jurors, but we need not reach the “economic realities test” because we find jurors are exempt from the MWA under its express provisions. We do, however, note that jurors occupy a unique and important place in our society. The United States Supreme Court, and other courts, have recognized that “[j]ury service is a duty as well as a privilege of citizenship; it is a duty that cannot be shirked on a plea of inconvenience or decreased earning power.” Thiel v. S. Pac. Co., 328 U.S. 217, 224, 66 S. Ct. 984, 90 L. Ed. 1181 (1946). Jury service “‘affords ordinary citizens a valuable opportunity to participate in a process of government . . . .’ Indeed, with the exception of voting, for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process.” Powers v. Ohio, 499 U.S. 400, 407, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991) (quoting Duncan v. Louisiana, 391 U.S. 145, 187, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968) (Harlan, J., dissenting)). Indispensable to our system of government, jurors represent a ground level exercise of our democratic values. State v. Saintcalle, 178 Wn.2d 34, 50, 309 P.3d 326 (2013) (plurality opinion).
Based on the unique nature of jury service, it follows that jurors are not employees in the traditional sense of the term. Neither amici nor petitioners have cited to any decision from any jurisdiction where a court has found jurors to be employees for the purposes of minimum wage. By contrast, King County points out several cases to the contrary. In Brouwer v. Metropolitan Dade County, 139 F.3d 817 (11th Cir. 1998), the court held that jurors were not employees for the purposes of the Fair Labor Standards Act,
“Jurors are completely different from state [or county] employees. Jurors do not apply for employment, but are randomly selected from voter registration lists. Jurors are not interviewed to determine who is better qualified for a position; the State summons all available persons who meet the basic requirements. . . . Jurors do not voluntarily tender their labor to the state, but are compelled to serve. Jurors are not paid a salary, rather they receive a statutorily mandated sum regardless of the number of hours worked. Jurors are not eligible for employment benefits, do not accrue vacation time, annual or sick leave and do not qualify for health or life insurance. The state does not have the power to fire jurors for poor performance, but must accept their verdict. In short, there is no indicia of an employment relationship between state court jurors and Dade County.”
Brouwer, 139 F.3d at 819 (alterations in original). Other courts have similarly held jurors are not employees for purposes of minimum wage. See, e.g., Patierno v. State, 391 So.2d 391, 392-93 (1980); St. Clair v. Commonwealth, 451 S.W.3d 597, 622-23 (2014); North Carolina v. Setzer, 256 S.E.2d 485, 488 (1979). We agree.
We find that jurors are not employees entitled to minimum wage for the purposes of the MWA because no employer-employee relationships exists statutorily under
III
The third issue raised is whether
In determining whether a statute creates an implied cause of action, we use the three-factor analysis established in Bennett v. Hardy, 113 Wn.2d 912, 920-21, 784 P.2d 1258 (1990). The factors are (1) whether
Former
(1) It is the policy of this state that all persons selected for jury service be selected at random from a fair cross section of the population . . ., and that all qualified citizens have the opportunity . . . to be considered for jury service in this state and have an obligation to serve as jurors when summoned for that purpose.
(2) It is the policy of this state to maximize the availability of residents of the state for jury service. It also is the policy of this state to minimize the burden on the prospective jurors, their families, and employers resulting from jury service. The jury term and jury service should be set at as brief an interval as is practical given the size of the jury source list for the judicial district. The optimal jury term is one week or less. Optimal juror service is one day or one trial, whichever is longer.
(3) A citizen shall not be excluded from jury service in this state on account of . . . economic status.
(4) This section does not affect the right to peremptory challenges under
RCW 4.44.130 .
In Bennett, former employees sued their employer, who employed fewer than eight employees, alleging age discrimination. Because their employer had fewer than eight employees, no cause of action existed under the Washington Law Against Discrimination (WLAD),
“[w]hen a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action.”
Bennett, 113 Wn.2d at 920. We borrowed the three factors from the federal implied cause of action test. Applying these factors, we noted that
The Court of Appeals opinions below diverged on how these factors apply. Both the majority and dissent found the first factor was satisfied. The majority found the second and third factors were not satisfied, reasoning the legislature intended to protect only the opportunity to serve and did not intend to guarantee the financial ability to serve. The dissent disagreed, reasoning that limiting the protection from exclusion to the opportunity to serve would permit intentional exclusion based on economic status so long as jurors were included on the master jury list. The dissent found the second and third factors were satisfied, reasoning King County created a structural incentive for jurors to
When analyzing the express statutory provisions, it is difficult to find that the statute, allowing hardship excusals through its intended operation, works to effect a systematic exclusion of jurors based on economic status. Nothing in the statutory language of
It makes no logical sense to read subsection (3) to imply a cause of action for economic status discrimination where the provision says the opposite—the purported “exclusion” occurs because judges grant hardship requests made by jurors under
As to the first Bennett factor, the statute protects citizens from being excluded from jury service on account of economic status. We need not engage in a detailed analysis of this factor because even if we assumed this factor was satisfied it would not change the result as we find that the other two factors of the Bennett test are not met.
To aid in our analysis, it instructive to look to the case from which Bennett borrowed the three-factor test. Regarding the second and third factors, the Ninth Circuit Court of Appeals wrote that
[p]laintiffs must establish that Congress intended to provide for the private remedy which they ask us to imply or at least that it is consistent with the legislative scheme. While a private remedy may be inferred from the plain language of the statute, the statutory structure, or some other source, we “‘will not engraft a remedy on a statute, no matter how salutary, that Congress did not intend to provide,‘” even if the plaintiff can show that he is a member of the class for whose benefit the statute was enacted and that there is no state-law impediment to implication of a remedy.
In re Wash. Pub. Power Supply Sys. Sec. Litig., 823 F.2d 1349, 1353 (9th Cir. 1987) (quoting Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 145, 105 S. Ct. 3085, 87 L. Ed. 2d 96 (1985) (quoting California v. Sierra Club, 451 U.S. 287, 297, 101 S. Ct. 1775, 68 L. Ed. 2d 101 (1981))) (the second and third factors were also referred to as “congressional intent” and “statutory consistency“). The above suggests that the second Bennett factor requires us to determine whether legislative intent supports implying the requested remedy, rather than any remedy, and suggests that the third Bennett factor looks to the entire statutory scheme to determine whether the requested remedy is consistent.
Here, as to the second factor, even though legislative intent may slightly support an implied remedy for jurors who are excluded on the basis of a protected characteristic under
Further, the statutory term “excluded” implies that direct action must be taken to “exclude.” “Exclude” is defined as “to shut out,” “to bar from participation, enjoyment, consideration, or inclusion,” “to put out,” or “to eject.” WEBSTER‘S THIRD NEW INT‘L DICTIONARY 793 (2002). The statutory language and overall statutory scheme express a policy of inclusion and cannot be read to mean the opposite. If we accepted petitioners’ argument, the meaning of exclude would encompass the hardship excusals under
prohibiting express acts of exclusion rather than supporting requiring counties to pay above the statutory rates in an effort to discourage jurors from self-excluding. In Thiel, the county excluded daily wage earners prior to summonsing because the county predicted such wage earners would seek hardship exemptions. Thiel, 328 U.S. at 224. In Taylor, women were required to opt-in before being summonsed for jury duty, thus excluding women by keeping them off the juror lists until they opted-in. 419 U.S. at 523. In both Thiel and Taylor, jurors were not summonsed and thus excluded from the opportunity to serve. Here, by contrast, petitioners were included on the master jury list and either served or self-excluded by requesting a hardship excusal.
Petitioners argue that because former
The legislative history also provides evidence that juror compensation was not intended to be connected to minimum wage. When the legislature amended
As to the third Bennett factor, the overall statutory scheme does not support implying the requested remedy of increased juror pay. The discussion of the second factor above somewhat applies to our analysis of the third factor. As King County argues and the Court of Appeals majority held,
We find no legislative intent to support an implied cause of action allowing jurors to seek a remedy for damages or requiring increased pay.
Finally, petitioners and various amici urge this court to invoke our inherent judicial authority—independent of the statutes at issue—to require paying jurors at increased rates. The most relevant case relied on for this argument is In re Salary of Juvenile Director, 87 Wn.2d 232, 251, 552 P.2d 163 (1976).9 We need not and
do not, however, reach these arguments because they exceed the scope of this case, not having been raised in the complaint or the courts below.10 Further, any exercise of our inherent authority in the area of juror pay would likely impact counties across the entire state, and this case is limited to claims against King County, not the other 38 counties or the state as a whole.
While we do not reach the inherent authority arguments, we take this opportunity to comment that low juror reimbursement is a serious issue that has contributed to poor juror summons response rates. The concerns raised by amici and petitioners as to the impact of low juror reimbursement on juror diversity, low-income jurors, and the administration of justice as a whole are valid points. While we should continue to cooperate with the other branches of government in an effort to address the long-standing problems identified by petitioners and amici, these concerns are best resolved in the legislative arena.
the legislature to amend (and raise) the rate established under
CONCLUSION
We affirm the Court of Appeals. We find that standing is satisfied for the purpose of analyzing the UDJA claims. We find that jurors are not employees entitled to minimum wage under the MWA or otherwise. We find that there is no implied cause of action for requiring increased pay for jurors under
WE CONCUR:
YU, J. (concurring in part and dissenting in part) — I agree with the majority that the plaintiffs have standing pursuant to
However, I cannot join the majority‘s analysis of the Bennett factors. See Bennett v. Hardy, 113 Wn.2d 912, 920-21, 784 P.2d 1258 (1990). Specifically, I agree with the dissent that a $10 per day reimbursement rate for juror pay systematically excludes individuals from jury service based on their economic status. As a result, our jury pools do not adhere to the state‘s policy that jurors are selected from “a fair cross section of the population.”
I agree with the majority that the second and third factors of the Bennett test do not support an implied cause of action for increased juror pay pursuant to
A. The plaintiffs are within the class for whose special benefit the statute was enacted
The majority does not decide whether the plaintiffs satisfied the first prong of the Bennett test. Id. at 16. Instead the majority asserts that no analysis of this factor is required “because even if we assumed this factor was satisfied it would not change the result.” Id. On this point, I would hold that the Court of Appeals properly determined that “the plain language of the statute protects people from being excluded from jury service based on economic status,” therefore the plaintiffs are within the class for whose benefit
B. Economically distressed jurors are systematically excluded from jury service, but their remedy is not an implied cause of action for increased juror pay pursuant to RCW 2.36.080(3)
I agree with the majority that
Although I join the majority‘s holding that the plaintiffs do not satisfy the second and third prongs of the Bennett test, I do not agree with its reasoning. Specifically, I do not agree with the majority‘s assertion that “it is difficult to find that the statute, allowing hardship excusals through its intended operation, works to effect a systematic exclusion of jurors based on economic status.” Majority at 15. To the contrary, the pernicious effect of low juror compensation is the systematic exclusion of all qualified citizens who simply cannot afford to participate. This is not a new revelation. In 2017 the Minority and Justice Commission studied jury diversity in Washington State. The commission‘s Jury Diversity Task Force determined that “financial hardship is the second highest reason to excuse a potential juror, behind undeliverable summonses.” JURY DIVERSITY TASK FORCE, MINORITY & JUST. COMM‘N, 2019 INTERIM REPORT 3 (2019), https://www.courts.wa.gov/subsite/mjc/docs/Jury%20Diversity%20Task%20Force%20Interim%20Report.pdf [https://perma.cc/UDJ5-TFFB]. Further, the task force highlighted the concerning nexus between race and poverty that impacts jury service, noting that “lower income and minority populations are disproportionally affected by the financial hardships of jury service” and “are disproportionately likely to seek economic hardship excusals.” Id. at 3, 2. Thus, the result is racially disproportionate juries. Given these findings, I cannot agree with the majority that the statute doesn‘t effectuate exclusion simply because “[n]othing in the statutory language of
Relatedly, the majority cites
For these reasons, I would hold that
CONCLUSION
I would hold that the plaintiffs have standing and that jurors are not employees for purposes of the
GONZÁLEZ, J. (dissenting)—The constitutional right to a fair jury drawn from a representative cross section of society is a fundamental component of our democratic system.
“[T]he institution of the jury raises the people itself, or at least a class of citizens, to the bench of judicial authority [and] invests the people, or that class of citizens, with the direction of society.
. . . .
“. . . The jury . . . invests each citizen with a kind of magistracy; it makes them all feel the duties which they are bound to discharge towards society; and the part which they take in the Government. By obliging [individuals] to turn their attention to affairs which are not exclusively their own, it rubs off that individual egotism which is the rust of society.
. . . .
“I do not know whether the jury is useful to those who are in litigation; but I am certain it is highly beneficial to those who decide the litigation; and I look upon it as one of the most efficacious means for the education of the people which society can employ.”
Powers v. Ohio, 499 U.S. 400, 407, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991) (most alterations in original) (quoting 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 334-37 (Schocken 1st ed. 1961)).
Unfortunately, the citizen‘s right to jury service and the litigant‘s right to a jury drawn from a fair cross section of society has been sharply limited through our history. Through much of that history, jury service
As we strive, however imperfectly, to build a more perfect union, we must strive toward building more representative juries. See, e.g., City of Seattle v. Erickson, 188 Wn.2d 721, 723-24, 398 P.3d 1124 (2017) (citing Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986)); State v. Lanciloti, 165 Wn.2d 661, 667-68, 201 P.3d 323 (2009). Given our society‘s history, our legislature has wisely recognized that jurors may not be excluded based on their membership in any protected class or on their economic status.
Despite this wise recognition that jurors should not be excluded because of economic status, the token King County pays jurors, $10 per day plus minor transportation reimbursement, accomplishes the very exclusion forbidden by law. When a seemingly neutral practice results in a systematic exclusion of a protected category of persons, it is discriminatory.1
Properly understood, the jurors’ rights act,
The plaintiffs are within the class intended to be protected by the jurors’ rights act. The act specifically states that “[a] citizen shall not be excluded from jury service in this state on account . . . of economic status.”
The legislative intent plainly stated in the Jurors’ Rights Act supports creating a remedy. The legislature has told us its intent:
(1) It is the policy of this state that all persons selected for jury service be selected at random from a fair cross section of the population of the area served by the court, and that all qualified citizens have the opportunity in accordance with chapter 135, Laws of 1979 ex. sess. to be considered for jury service in this state and have an obligation to serve as jurors when summoned for that purpose.
(2) It is the policy of this state to maximize the availability of residents of the state for jury service. It also is the policy of this state to minimize the burden on the prospective jurors, their families, and employers resulting from jury service. The jury term and jury service should be set at as brief an interval as is practical given the size of the jury source list for the judicial district. The optimal jury term is one week or less. Optimal juror service is one day or one trial, whichever is longer.
A remedy is consistent with this purpose. The low pay and low reimbursement rate amounts to an exclusion on the basis of economic status, denying such jurors the opportunity to serve as promised in
I respectfully disagree with the majority that jurors’ pay is limited to $25 per day under
I do agree with the majority that these plaintiffs have standing to bring their jurors’ rights act claim in a declaratory judgment action
For the same reasons the jurors’ rights act contains an implied remedy, these plaintiffs are within the zone of interests the act protects. They have a right to the opportunity to serve. The low pay and reimbursement rate effectively deny them that right. The statute operates in that zone. Similarly, their systematic exclusion from the pool is an injury that these plaintiffs have suffered. They are being denied one of the fundamental tasks of a citizen in our democracy. Declaratory judgment is available.
I respectfully dissent.
Notes
Rocha v. King County, 7 Wn. App. 2d 647, 665, 435 P.3d 325, review granted, 193 Wn.2d 1017 (2019). I agree.Jury service is a full time job that can extend from less than a day to weeks. For those with low paying jobs without leave for this purpose, the cost of jury service may be a missed rent payment or skipped meals. For those without understanding employers, jury service may come at the cost of a job. Faced with such risk, the choice to exclude oneself is hardly voluntary.
Saintcalle, 178 Wn.2d at 50 (Wiggins, J., lead opinion)We have juries for many reasons, not the least of which is that it is a ground level exercise of democratic values. The government does not get to decide who goes to the lockup or even the gallows. Ordinary citizens exercise that right as a matter of democracy. In England, the jury developed into juries of one‘s peers, coming from one‘s community. This is the grand heritage of the jury system.