Case Number: 2018MT 210N

Judge: Beth Baker

Court: SUPREME COURT OF THE STATE OF MONTANA

Plaintiff's Attorney: Maxon R. Davis
Courtney Mathieson, Special Assistant Attorney General

Defendant's Attorney: Joseph P. Cosgrove
Anders Blewett

Description: Shortly before 10p.m. on January21, 2016, Greg Fryberger, an employee of
MDOT, finished clearing snow berms with a front-end loader on an intersection of U.S.
Highway 93.1 He was working about ten miles north of the MDOT shop where the
loader normally was kept. After finishing his work, Fryberger began driving back to the
MDOT shop to return the loader. It was five hours after sunset, and the road was dark.
Fryberger had the top light, flashers, and headlights of the loader on, and the vehicle had
a “slow-moving” placard on it. The loader was driving about fifteen to twenty miles per
hour. As Fryberger drove the front loader down Highway 93, Bockman-Fryberger, who
was driving sixty-two miles per hour, rear-ended the loader. She was injured in the
collision.
1 Fryberger is acousin of Bockman-Fryberger’s ex-husband.
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¶3 Bockman-Fryberger sued the State for its employee’s negligent actions and its
failure to have a policy prohibiting the operation of a loader on a public highway at night,
its failure to ensure the loader was equipped with lights compliant with statutory
requirements, and its failure to properly train or supervise the driver of the front-loader.
The State’s theory at trial was that Bockman-Fryberger’s negligence caused the collision
and her injuries: the loader’s lights and reflectors were visible and, despite having ample
time to slow down, she made no attempt to reduce her speed as she approached the
loader.
¶4 During jury selection, Bockman-Fryberger moved to have all state employees
removed from the jury for cause pursuant to §25-7-223(3), MCA, which allows
challenges for cause when a juror “stand[s] in the relation of... employer and
employee... to either party.” Bockman-Fryberger withdrew the motion after the District
Court agreed that she could challenge individual jurors during voir dire under the
provision.
¶5 Bockman-Fryberger challenged two potential jurors, Eugene Betz and Steven
Haynes, for cause under §25-7-223(3), MCA, due to their employment with the State.
Betz works for the Montana Highway Patrol Division in Helena. During voir dire, Betz
stated thathe knew many state employees, including his two ex-wives and his best friend.
He also stated that he had formed a “close relationship” with the current director of
MDOT, Mike Tooley, when Tooley was chief of the Highway Patrol; he added that they
“don’t run in the same circles, but [do] say hello.” The District Court overruled both
challenges. Bockman-Fryberger used her peremptory challenges to remove state
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employees from the jury, including Betz. Four state employees, including Haynes,
remained on the jury. On appeal, Bockman-Fryberger challenges the District Court’s
refusal to grant her challenge for cause of Betz. She does not separately challenge
Haynes’s service on the jury.
STANDARD OF REVIEW ¶6 We review a court’s refusal to dismiss a juror for cause for an abuse of discretion.
Reff-Conlin’s Inc. v. Fireman’s Fund Ins. Co., 2002MT 60, ¶16, 309Mont. 142,
45P.3d863. “We will reverse the judgment and order a new trial if a court abuses its
discretion by denying a defendant’s challenge for cause, the defendant removes the
challenged prospective juror with a peremptory challenge, and the defendant exhausts his
peremptory challenges.” State v. Kebble, 2015MT 195, ¶15, 380Mont. 69,
353P.3d1175.
DISCUSSION ¶7 Bockman-Fryberger argues that the District Court abused its discretion when it
refused to excuse Betz for cause under §25-7-223(3), MCA, due to his employment with
the State. She argues that the statute establishes certain relationships between a potential
juror and a party that create an implied bias, requiring the court to excuse the juror for
cause if either party raises a challenge. Alternatively, Betz should have been excused for
cause when voir dire established that he had extensive relationships with other state
employees and knew the director of MDOT. Bockman-Fryberger maintains that she is
entitled to a new trial because she was presumptively prejudiced when she had to use one
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of her peremptory challenges to excuse Betz and she used all of her remaining
peremptory challenges. See Kebble, ¶15.
¶8 Section 25-7-223, MCA, governs challenges for cause in civil cases. It states in
relevant part, “Challenges for cause may be taken on one or more of the following
grounds:... standing in the relation of... employer and employee... to either party.”
Section 25-7-223(3), MCA. We have not interpreted previously whether
§25-7-223(3),MCA, proscribes state employees from sitting on a jury in a civil case to
which the State is a party. In Reff-Conlins Inc., we determined that the “debtor and
creditor” language in the same subsection proscribed the president of a party’s creditor
bank from sitting on the jury because “there is no substantive difference between the
Chief Executive Officer of a creditor who is responsible for the creditor’s success and the
creditor itself when it comes toimpartiality and jury duty. To hold otherwise wouldexalt
form over substance.” Reff-Conlin’s Inc., ¶21.
¶9 Outside the civil arena, we have addressed similar language in the statute
governing challenges for cause in criminal cases. See Kebble, ¶¶18-38. We find the
analysis in Kebble instructive. Section 46-16-115, MCA, states in pertinent part, “A
challenge for cause may be taken for... being... in the employment of... the
person... on whose complaint the prosecution was instituted.” Section 46-16-115(2)(b),
MCA. We have interpreted “person” in the statute to include governmental entities. See
Kebble, ¶26.
¶10 In Kebble, we explained that for-cause challenges to state employees should not be
categorically sustained. Kebble, ¶¶32-36. We determined that it was instead proper for
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the district court to explore whether the state employee had a state of mind that might
prevent him from acting with entire impartiality. We explained that the purpose of the
statutes governing for-cause challenges “is to eliminate from the jury pool for cause
someone who, due to an employment relationship or a personal relationship, past
experience, or direct personal knowledge...cannot logically be expected to set aside her
resulting state of mind and act with entire impartiality.” Kebble, ¶32. Given this
purpose, we determined it proper to examine whether “a proposed juror falls squarely
within one of the statutory proscriptions.” Kebble, ¶36. We observed that for some
relationships there will be “no middle ground,” and removal for cause “will be patently
evident.” Kebble, ¶35. For other relationships, a district court must examine the
challenged connection and determine whether it is “indirect and tangential” to the
litigation. Kebble, ¶36. We explained that “the parties and the court must be free to
explore whether the association would prevent the prospective juror from acting with
impartiality and without prejudice to the rights of either party.” Kebble, ¶36.
¶11 We held that the district court abused its discretion when it refused to strike for
cause a juror who was employed by the agency that had conducted a key part of the
investigation and that employed one of the State’s principal witnesses. The prospective
juror “was clearly in the employment of the very department and division that was
involved in the prosecution.” Kebble, ¶31. We differentiated State v. Thomson,
169Mont. 158, 545P.2d 1070 (1976), whichheld that the district court did not abuse its
discretion when it refused to strike a state employee who worked in a capacity wholly
unrelated to the issues in the case.
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¶12 Just like §46-16-115, MCA, the purpose of §25-7-223, MCA, “is to eliminate
from the jury pool for cause someone who, due to an employment relationship or a
personal relationship, past experience, or direct personal knowledge of the [case or
party], cannot logically be expected to set aside her resulting state of mind and act with
entire impartiality.” Kebble, ¶32. And just like §46-16-115, MCA, its civil counterpart
identifies certain relationships for which “it will be patently evident that a challenge for
cause of a prospective juror must be granted.” Kebble, ¶35. For example, “having
served as a juror or been a witness on a previous trial between the same parties for the
same cause of action” will establish cause to exclude a prospective juror from service.
Section 25-7-223(4), MCA. Reff-Conlin’s Inc. suggests that other relationships set forth
in the statute may call for further examination, rather than mechanical application of the
statute that “exalt[s] form over substance.” Reff-Conlin’s Inc., ¶21.
¶13 Under both statutes, the role of the district court is to hear the challenges raised by
the parties and to exercise its discretion in determining whether to exclude a prospective
juror. First enacted in 1967, §46-16-115(1), MCA, clearly states this role: “Each party
may challenge jurors for cause, and each challenge must be tried by the court.” Although
§25-7-223, MCA, more simply states that “challenges for cause may be taken,” the
difference is a matter of drafting style reflecting the statute’s vintage. Montana’s
Territorial Legislature first enacted in 1864 what is now codified as §25-7-223, MCA.
The modern statute remains largely unchanged from its original form. An early decision
from this Courtheld that the statuterequires the parties to raise challenges and the district
court to try each challenge raised before making its determination. Ruff v. Rader,
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2Mont. 211, 217 (1874). Under both statutes, the trial court “exercises its discretion in
the matter of passing upon the qualifications of a juror, and its determination will not be
disturbed unless there has been an abuse of that discretion.” Simons v. Jennings,
100Mont. 55, 61, 46P.2d 704, 707 (1935); see also Thomson, 169Mont. at 164,
545P.2d at1073 (holding that when the court “does not . . . remov[e] a juror for cause
when a challenge is made, this Court may reverse a conviction only where there is
demonstrated a clearabuse of discretion”).
¶14 Although there are some differences in the statutes’ language regarding an
employment relationship, those differences are explained by the fact that the State is a
party in every criminal case. The criminal statute is worded plainly to reflect that the
State’s party status does not automatically exclude from the jury every state employee.
In Kebble, this Court interpreted “in the employment of the person [or entity] upon whose
complaint the prosecution was instituted” to require a showing that the prospective
juror’s employment would be likely to create a bias against the challenging party.
Kebble, ¶¶30-31.
¶15 We conclude that Section 25-7-223(3), MCA, likewise does not automatically
excludeall challenged state employeesfromsitting onjuries when the State is aparty to a
civil case. Instead, “standing in the relation of employer and employee to either party”
requires a connection between the prospective juror’s state employment and the litigation
at issue that would logically call into question his ability to be entirely impartial. For
example, if a prospective juror werein the employment of the state agency whose actions
or policies are at issue in the litigation, then the connection would be direct. In such
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cases, the challenge for cause must be granted, regardless of whether the potential juror
claims she can be impartial. The statute, however, does not categorically exclude state
employees who work in capacities wholly unrelated to the events, departments, or
policies at issue. See Kebble, ¶31; Thomson, 169Mont. at165, 545P.2d at1073. In
considering a challenge, “the widest possible examination should be allowed such person
in his examination as a potential juror, and should there be any doubt in the event of a
challenge for cause, the trial court should resolve the doubt in favor of allowing the
challenge.” State v. Radi, 176Mont. 451, 460, 578P.2d 1169, 1175 (1978).
¶16 Bockman-Fryberger argues that the policy considerations against allowing state
employees to serve on juries in cases in which the State is a party are stronger in civil
cases than in criminal cases. She suggests that if state employees are not categorically
excluded, then employees of any large corporation cannot be categorically excluded
either. We reject the premise that State employees are situated the same as employees of
a large corporation. The State is not a for-profit entity seeking to please its investors.
Bockman-Fryberger also postulates that state employees may fear that a damage award
against the state could lead to budget shortfalls and furloughs, or that a state employee
may fear setting precedent that could lead to him getting sued for negligence. In Kebble,
we acknowledged:
that there are many valid reasons for including the employer-employee relationship on the list of affiliations which will justify excusing a juror for cause. An employer could use her position of authority over a juror to influence his decision, whether directly or subtly. From the juror’s perspective, there will be an underlying concern about the prospect of returning to work after trial and having to explain to his coworkers or boss why he may have disbelieved their testimony or rendered a verdict against
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them. Although this prospective juror may feel constrained to declare his impartiality before his peers during voir dire and may also be fully wellintentioned, the pressures underlying his employment relationship with a party to the case will undoubtedly color his ability to act wholly without bias.
Kebble, ¶34. We determinedin Kebble, however, that thesereasons may not apply when
the prospective juror is employed by the State in a capacity wholly unrelated to the
litigation at hand. Rather, the District Court must make determinations of bias based on
the prospective juror’s answers during voir dire. See Kebble, ¶37. Similarly, that a
jury’s award of damages against the State could impact an individual employee’s job
security is too attenuated a leap to require automatic exclusion of all government
workers. Every Montana taxpayer could share a concern about the public fisc. All of
those concerns may be brought out through questioning of the prospective juror during
voir dire.
¶17 Reviewing the facts of the instant case, Betz was not employed by MDOT, whose
actions and policies were at issue. He was employed by the Montana Highway Patrol, at
its command center in Helena—many miles away from the location of the collision.
Although he knew the director of MDOT personally, the two were no longer in a
supervisor/subordinate relationship. Betz did not have an employment relationship with
the State that required his exclusion under §25-7-223(3), MCA. We hold that the
District Court did not abuse its discretion by denying Bockman-Fryberger’s challenge for
causeon that ground.
¶18 Bockman-Fryberger’s contention that Betz should have been removed for cause
due to his relationships with multiple state employees also fails. None of these
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relationships come within the statute’s proscriptions. The challenge thus invokes
§25-7-223(7), MCA, under which Bockman-Fryberger must show that Betz possessed a
“state of mind... evincing enmity against or bias in favor of either party.” A district
court abuses its discretion under §25-7-223(7), MCA, if it does not grant a challenge for
cause when “presented [with] the strong possibility of bias in favor of [a] party.” Harris
v. Hanson, 2009MT 13, ¶22, 349Mont. 29, 201P.3d 151.
¶19 The record shows that the District Court did not abuse its discretion. Betz
acknowledged his acquaintance with MDOT Director Tooley, clarifying that they did not
“run in the same circles, but [would] say hello” when they saw each other around town.
He stated he had no reservations about his ability to be impartial and that he “absolutely”
would be able to sit with an open mind and listen to the evidence and render a verdict
against the State. Betz repeatedly answered during voir dire that he could be impartial,
and Bockman-Fryberger fails to demonstrate how knowing other state employees exhibits
a “strong possibility of bias” in favor of the State.
¶20 As we stated in State v. Richeson, “It must be remembered that the purpose of voir
dire is not only to establish grounds to dismiss a juror for cause, but also to enable
counsel to intelligently exercise peremptory challenges.” State v. Richeson, 2004 MT
113, ¶29, 321Mont. 126, 89P.3d 958. Bockman-Fryberger was “free to explore
whether [Betz’s] association would prevent [him] from acting with impartiality and
without prejudice to the rights of either party.” Kebble, ¶36. Betz’s answers indicated
his ability to judge the case fairly. The District Court did not abuse its discretion by
denying Bockman-Fryberger’s challenge for cause.

Outcome: The District Court is affirmed.

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