Rueth v. State

596 P.2d 75, 100 Idaho 203, 1978 Ida. LEXIS 468

• Court: Idaho Supreme Court
• Decided: July 10, 1978
• Docket: 12132
• Status: Published

Opinions

BISTLINE, Justice.

The State of Idaho’s Fish and Game Department appeals a jury verdict in favor of plaintiffs-respondents Rueths. The Rueths brought suit in October, 1972, claiming that the Fish and Game Department’s operation of a water diversion structure and resultant flooding “effected a complete loss of value of said lands of plaintiffs and, therefore, constitutes a taking of said lands of plaintiffs by defendants.” The prayer of plaintiffs’ complaint asked that a jury trial be had to ascertain and assess “the plaintiffs’ damages by reason of the loss of the total amount of property taken by the Defendants.” Fish and Game denied the taking and denied any responsibility for the alleged flooding.

After plaintiffs and defendant rested, the trial court gave a number of instructions as to what the jury might find constituted a taking. The jury was also instructed that, if they found a taking, the measure of damages “is the difference between the fair market value of plaintiffs’ property before the taking and the fair market value of plaintiffs’ property immediately after the taking.”

The jury returned a general verdict awarding the plaintiffs damages in the sum of $127,000. The jury was not requested to determine the extent of the taking if less than total, nor the before and after values of the plaintiffs’ property. The judgment entered on the verdict merely recites the verdict, and judgment in that amount was entered in plaintiffs’ favor. The judgment, as with the verdict, does not establish the property or property right taken by the Fish and Game Department. The record before us discloses no post-judgment motions. This appeal followed.

On appeal, the Fish and Game Department challenges the sufficiency of evidence to support the jury verdict of a “taking” as well as the amount of damages in the resulting award. The Department likewise assigns as error numerous trial court rulings regarding admissibility of evidence, instructions to the jury and the denial of a jury view of the subject premises. The Department urges also that the trial court’s communications with the jury outside the courtroom and off the record constituted reversible error. Our ruling on this latter issue is dispositive of the appeal.

On September 27, 1976, pursuant to I.R. C.P. 60(a), appellant Fish and Game Department filed in this Court a motion .to correct clerical error, requesting that the record on appeal be corrected so as to show that after the jury retired to consider this case on the afternoon of October 10, 1975, they sent a written message to the trial judge requesting further instructions and that written instructions were then given to the jury in the absence of counsel for the Department. In reply to this motion, counsel for Rueths stated that he had “no objection to the entry of a minute entry memorializing the occurrence” but insisted that such minute entry not “reflect the erroneous statement of facts contained in the supporting affidavit” of counsel for the Department. Accordingly, this Court, in an order dated November 9, 1976, granted the motion and remanded the cause to district court with directions to correct the record. In addition, we ordered that

if the written material in question is in possession of the District Court that it be forwarded with the corrected record to this Court, and if such written material is not available that the District Court forward the next best evidence relative to the Jury’s inquiry and the Judge’s response to this Court.

On remand, it was determined that no official record had been kept of the communication from the jury to the trial court or the communication given by the court to the jury, and that the original writings themselves had both been destroyed. Consequently, the parties attempted to reconstruct the events by way of affidavits. The trial judge, the bailiff, the court reporter and the clerk of the court all averred that they had “no independent recollection” of the occurrence. Counsel for the Rueths stated his own recollection as follows:

Immediately following the submission of the case to the jury in this action, counsel for the defendants, the Fish and Game Commission, advised your affiant and everyone else in the courtroom that he was hurrying to catch an airplane to attend a football game. Your affiant believes that the football game in question was scheduled for the following day in Moscow, Idaho. From that time forward, your affiant did not again see counsel for the defendants, the Fish and Game Commission, anywhere on or about or near the courthouse in Caldwell, Idaho.

In the early afternoon following the submission of the case to the jury, the bailiff requested that I see the District Judge. When I arrived at the District Judge’s chambers, Judge Dunlap was standing outside with a note from the jury. He was asking his bailiff, clerk and reporter, as well as your affiant, where counsel for the defendants was. I responded that counsel for the defendants had gone to a football game in Moscow.

Counsel for the Rueths remembers that he told the judge “the preferable route to avoid error would be to make no further instructions, but to advise the jury to follow the instructions which it already had.” According to the recollection stated in counsel’s affidavit, the district judge agreed that this was the correct response and “then returned the note to the bailiff and told the bailiff to tell the jury to continue to look only to the instructions which had been given them.”

Counsel for the Fish and Game Department, by affidavit, states: that he was present in the courthouse from 11:00 a. m. when the jury retired for its deliberations until noon at which time the jury took a lunch break as did counsel; thereafter, counsel along with a Department employee purchased a slide viewer to aid the jury should it care to examine certain slide exhibits more closely; after delivering the viewer to the bailiff around 1:00 p. m., counsel again passed the time in conversation with Department witnesses and employees in the courthouse; at approximately 2:00 p. m., he joined Judge Dunlap in his chambers for coffee; counsel recalls the judge as being surprised to see him still on the premises; counsel states that he remained in the courthouse until approximately 2:45 p. m. at which time he left for his office in Boise; a Department representative, Mr. Von Steen, was instructed to contact counsel by phone if any verdict was brought in by the jury; counsel then drove to Boise, dropped off a passenger and proceeded to his office where he arrived at approximately 3:30 p. m.; his secretary informed him that there had been no calls from Von Steen concerning the Rueth case; after doing some office work and confirming that there would be no stand-by room on the evening flight to Moscow, counsel went home and, shortly before 5:00 p. m., left by car for north Idaho. Based on the above account and the fact that the jury returned its verdict at 3:41 p. m., counsel speculates that the “early afternoon” communication between the judge and jury may well have taken place while he was still in the courthouse and that the misunderstanding as to his whereabouts may have discouraged any real attempt to locate him.

I.

The question is whether the procedure which took place after the cause had been submitted to the jury constitutes reversible error. Plaintiffs-respondents Rueths argue first that, by absenting himself from “the courthouse, the city, and the county in which the case was being tried,” counsel for the Fish and Game Department waived any objection to the proceedings which transpired in his absence. In support of this proposition, respondents cite Meyer v. Dubinsky Realty Co., 133 S.W.2d 1106, 1111 (Mo.App.1939):

Upon being advised that counsel had left the building, the court proceeded to listen to the inquiry of the one juror who was acting as spokesman for the entire group, and we think the court is in no manner to be criticized for not having held all other parties waiting until such time as defendant’s counsel could be called away from his office. It was counsel’s primary responsibility to be in attendance on the court until his case was finally concluded, and when he elected to leave the building, he should not charge error against the court for having continued to function in his absence.

The rule so stated is acceptable and we prefer it to that enunciated by those jurisdictions which hold that no communication whatsoever may occur between judge and jury unless both counsel are present or have expressly waived the right to be present. See, for example, Neely v. Woolley, 143 S.W.2d 1015 (Tex.1940); Rowden v. American Family Ins. Co., 48 Wis.2d 25, 179 N.W.2d 900 (1970).

Respondents, however, overstate the nature of the waiver.. What an absent counsel waives is only his right to be present and to object to the court’s supplemental instructions.¹ He does not waive his right to have such instructions given in compliance with certain generally recognized procedures. As stated by the Third Circuit Court of Appeals:

The due process clause of the Fifth Amendment to the Constitution requires that a defendant be accorded the right to be present in person or by counsel at every stage of his trial. [Citations omitted.] Orderly procedure requires that a plaintiff be accorded the same right. A party or his counsel may waive this right expressly. He may also waive it by voluntarily absenting himself from the courtroom in which the trial is being conducted, and in that case the trial judge may proceed with the trial in his absence even to the extent of recalling the jury from their deliberations for such additional instructions on the law as occasion may require. [Citation omitted.] But the parties are entitled to anticipate and bound to presume, in the absence of notice to the contrary, that all such proceedings will take place in open court in the courtroom assigned for the trial and will be reported by the court stenographer. Consequently a party or his counsel who voluntarily absents himself from the courtroom consents to such proceedings only as take place in the courtroom in his absence but not to proceedings which take place elsewhere. (Emphasis added.)

Arrington v. Robertson, 3 Cir., 114 F.2d 821, 823 (1940).

In Idaho, the procedures to be followed in dealing with a jury request for supplemental instructions are those laid down in I.R. C.P. 51(b):

Any request by the jury to be further informed of any point of law arising in the action shall be communicated in open court, at which time the attorneys for the parties shall be given the opportunity to be present, and the court in its discretion may further instruct the jury or explain the instructions in open court which shall be made part of the record,

and Rule 77(b):

A minute entry shall be made by the clerk of the court under the direction of the court of all court proceedings and filed in the official file of the action.

The rules of civil procedure thus provide that if, after start of its deliberations, a jury wishes further instructions, it must communicate this desire in open court. Counsel for both parties have a right to be present unless, by absenting themselves or by expressly so stating, they waive this right. The trial judge may, in his discretion, give or refuse to give any further instructions. All communication must be made a matter of record and a minute entry must be made to note the occurrence. It is clear that in the present case these procedures were not followed.

II.

Respondents argue, in the alternative, that even if the rules have been violated and opposing counsel cannot be said to have waived compliance, the noncompliance which occurred here was “harmless error” and has not been shown by appellant to be prejudicial. In short, respondent would have us adopt a rule which places on an appellant (which might be a prevailing plaintiff as well as a losing defendant, or both) the double burden of showing both that a procedural violation has occurred and that such violation resulted in “actual prejudice.” In considering that argument, we should be reluctant to overturn the results of a lengthy trial where the procedural violation amounts to a mere technicality, or where it is clear that the procedural violation occurred after the jury had actually reached its verdict, or where the misconduct involved could in no way have prejudiced and may even have benefited the losing party. See, for example, Hammargren v. Montgomery Ward, 172 Kan. 484, 241 P.2d 1192 (1952); Meyer v. Dubinsky Realty Co., supra; McBride v. Johns, 73 Ga.App. 444, 36 S.E.2d 822 (1946). These cases, and others cited by respondent, illustrate the fact that procedural violations come in many forms and in varying degrees of prejudicial impact. A per se rule requiring reversal in all instances would appear to be unwise.

At the opposite extreme, nonetheless, several jurisdictions appear to have adopted just such a per se rule whereby “any communication between the trial judge and the jury or members thereof after submission of the case, elsewhere than in open court, or in the presence, or with the consent of, counsel,” is regarded as reversible error. Annot., 41 A.L.R.2d 227, 306 (1955). See the numerous cases cited therein. There is much to be said for this approach also. It is not without reason that procedural irregularities involving communication between the trial court and jury are judged by a far stricter standard than those between jurors and other court officials. As noted above in Arrington, the parties have a right to be present at and to insist that every stage of the proceedings be conducted in open court. See also Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 81, 39 S.Ct. 435, 436, 63 L.Ed. 853 (1919); Ah Fook Chang v. United States, 91 F.2d 805 (9th Cir. 1937).

From a consideration of the values underlying each extreme position — namely, the duty to guard jealously the parties’ right to be present at and to have a record made of every stage of the trial while, at the same time, respecting the outcome of lengthy and costly jury trials — has come a middle position. The starting point for this third alternative is that

The failure to comply with any or all of the requirements of CR 51(i) [Washington’s equivalent of I.R.C.P. 51(b)] makes any subsequent verdict questionable if not suspect .

Iverson v. Pacific American Fisheries, 73 Wash.2d 973, 442 P.2d 243, 245 (1968). Still, reversal is not automatic:

[I]t leaves the door open for a possible showing by the prevailing party that the failure to follow the requirements of the rule . . . was not really prejudicial.

Id. In sum, the third approach holds that procedural violations in this sensitive area are such as to make the resulting jury verdict questionable, trigger a close judicial scrutiny of what has occurred, and place on the winning party the burden of showing that no prejudice has resulted.²

III.

The same rule has long been the law in Idaho. In State v. Bland, 9 Idaho 796, 76 P. 780 (1904), after presenting the same two extreme positions outlined above, the Court declined to adopt a per se rule requiring reversal for every out-of-court communication. between judge and jury, but nonetheless expressed its strongest possible disapproval of such a practice:

While we are not willing to say at this time that any and all communications which might possibly take place between a trial judge and jury in the absence of the defendant, should work a reversal of the judgment, still we are strongly persuaded that such communications should never take place, and the interests of justice, and the confidence of the public and parties litigant in legal proceedings, and the preservation of the recognized and established rules of practice and procedure demand that all communications between judge and jury take place in open court.

9 Idaho at 804, 76 p. at 782. Thus, in Idaho, it is definitely not the case that the losing party has the double burden of showing both that a statutory violation has occurred and that “actual prejudice” has resulted. The Court in Bland was at pains to reject any such suggestion:

It is too often that refuge from the results of positive violation of statutory provisions and settled rules of practice is taken behind the much-abused excuse that the error was not prejudicial to any substantial right of the defeated party. . The law has its best observance and commands the highest respect where its sanctity and inviolability in all its provisions is uniformly recognized and enforced by the courts. The interest of the people at large in maintaining its administration above reproach must always equal if not exceed the private or personal interest of any litigant.

9 Idaho at 805,³ 75 P. at 782-783. According to the Court in Bland, these policy considerations are safeguarded by strict compliance with Section 7903 of the Revised Statutes (which embodied substantially the same procedures as present I.R.C.P. 51(b)). It followed that the improper behavior of the trial judge in that case required the Court to set aside the jury verdict.⁴

In formulating the procedure to be followed in Idaho, the Court in Bland quoted approvingly from 1 Hayne, New Trial and Appeal § 39, as follows:

“That where the losing party shows that some private communication was made by the judge to the jury, it devolves upon the successful party to show what the communication was, and that unless he does this the verdict must be set aside; that where it clearly appears what the communication was, then, if it be of such a character that it may have affected the jury, the verdict must be set aside; but that, if the court can see from the record that it could not have had any effect, the verdict should stand.”

9 Idaho at 803, 76 P. at 782. See also State v. Baker, 28 Idaho 727, 156 P.2d 103 (1916); State v. Sly, 11 Idaho 110, 120, 80 P. 1125 (1905).

The wisdom of the four-step procedure outlined above is particularly evident in the present case where, as in Bland, no record has been kept of the communications between judge and jury and the entire occurrence must be reconstructed by memory long after the event. To summarize: (1) It is for the losing party, in the first instance, to show that there was some communication off the record and not in open court. (2) The burden then shifts to the winning party to show what the communication was. If he cannot show what it was, the verdict must be set aside. (3) If he can show what the communication was but it appears to have been of such a character that it may have affected the jury, then the verdict must be set aside. (4) Only if it is made clearly to appear that the communication could not have had any effect, can the verdict be allowed to stand.

In the present case, respondent has not succeeded in satisfactorily establishing the nature and extent of the communication. Evidence as to the content of the communication between the judge and jury was sketchy and conflicting. As mentioned earlier, the trial judge and all court personnel possess “no independent recollection” of the communication whatever. Prevailing counsel urges that the incident had minimal impact, saying that the trial judge only “told the bailiff to tell the jury to continue to look only to the instructions which had been given them.” Such an oral communication from judge to bailiff to jury, by its very nature, would be difficult to reconstruct. Here it is impossible. Neither the trial court nor the bailiff even recall the incident — let alone what may have been said. Prevailing counsel is unable even to reconstruct the initial step. His affidavit concludes: “I do not recall the precise words used by the District Court when returning the note to the bailiff.” Had counsel recalled the precise words which he heard the court use, the further problem would remain as to whether the bailiff communicated the same words to the foreman of the jury, and whether the foreman accurately told the other jurors what the message was from the judge. Such oral communications, precisely because they are so open to dispute after the fact and because their impact upon the jury cannot accurately be determined, constitute grounds for reversal. Lloyd v. St. Louis Public Serv. Co., 360 Mo. 91, 227 S.W.2d 460 (1950); Guzzi v. Jersey Central Power & Light Co., 36 N.J.Super. 255, 115 A.2d 629 (1955); Peters v. State Industrial Accident Comm’n, 236 Or. 27, 386 P.2d 800 (1963).

Here the communication, and even the form it took, are in dispute. According to the affidavit of Conley Freeman, a juror,

the jurors wrote a message to the judge requesting explanation of the court’s instructions on the question of what constitutes a “taking” under the law of eminent domain, and on the question of the proper measure of damages.

Contrary to the recollection of respondents’ counsel, the juror says the district judge replied to the jury by way of a written message “to the effect that the questions asked were immaterial and that the jury was to make its decision based on the instructions already given.”

According to the affidavit of Delwin W. Hobza, foreman of the jury, we are told that the written note from the district judge was destroyed by the jurors after their deliberations. Hobza’s affidavit further states that the precise point of the jurors’ note was to ask the court for “an instruction as to whether or not the plaintiffs would continue to own the subject real property following entry of judgment” and that the trial judge’s reply was,

that the question was not material to our deliberations, that no further instructions would be given in answer to the question. . The jury then did follow those instructions, and following the court’s response, did not further pursue the question presented in the aforesaid note.

It would seem to us that the question as to whether or not the Rueths “would continue to own the subject real property following entry of judgment” was extremely material to the outcome of this case. It went to the two most fundamental questions of this case, namely, whether there had been a complete or only a partial taking, and whether damages should be awarded for the full or only the diminished, value of the Rueths’ property.

It is entirely possible that the jury intended their verdict to represent an award of damages for a “complete taking.” It is equally possible that the jury reached its award- of damages to compensate for the taking of a flood easement. All this is, of course, conjecture. But that is the unfortunate result when the procedures laid down in I.R.C.P. 51(b) are not followed. . As Justice Ailshie stated in Bland:

The danger of such a practice [communicating with a jury out of court] is illustrated by this case. The only way in which a record can be made as to what occurred between the judge and jury in such a case is by affidavit; but here it transpires that the judge of the court must actually make affidavits in his own court to show what has taken place between himself and the jury, while in fact he is provided with an official stenographic reporter whose duty it is to make a record of all the proceedings.

9 Idaho at 804, 76 P. at .782.

On this appeal, the prevailing party has failed to show clearly what the communication was between the trial judge and the jury. In the absence of such a showing, it is impossible to say that appellant was not prejudiced by the communication which did occur. The judgment is accordingly reversed and the cause remanded for a new trial.

McFADDEN and BAKES, JJ., concur.

1 . Any other rule would result in chaos. An unscrupulous or careless attorney could merely leave the courtroom after any jury retired, and seek to overthrow as a matter of law any verdict thereafter received (whether as the result of further instruction given in his absence, or not) upon the sole ground that he did not return to the courtroom and that supplementary instructions were given the jury in his absence. This could never be permitted. No judge can surrender to counsel the conduct of a trial.

Macartney v. Compagnie Generale Transatlantique, 9 Cir., 253 F.2d 529, 535 (1958).

2 . Though not cited to us by respondent, reliance might have been placed on the “harmless error” rule stated in I.R.C.P.. 61. The third approach, adopted herein, conforms to the better reasoned interpretations of Rule 61. As former Chief Justice Traynor of the California Supreme Court has remarked, the judgment below is suspect whenever an error has occurred which is more than a “mere technicality” and which affects a substantial right and “unless the appellate court believes it highly probable that the error did not affect the judg- . ment, it should reverse.” Traynor, The Riddle of Harmless Error, 1970, 35. See also 11 Wright & Miller, Federal Practice and Procedure § 2883, p. 275.

3 . A similar conclusion has recently been reached by the Supreme Court of Appeals of West Virginia after a scholarly survey of each of the more extreme positions. See Klesser v. Stone, 201 S.E.2d 269 (W.Va.1973).

4 . Bland was a criminal case. However, as the Supreme Court of Montana stated recently, there is no “double standard that can be applied to the sanctity of a jury’s deliberations based on criminal or civil process.” State Highway Comm’n v. Dunks, 166 Mont. 239, 531 P.2d 1316, 1318 (1975).