Holmgren v. North Dakota Workers Compensation Bureau , 1990 N.D. LEXIS 101 ( 1990 )

VANDE WALLE, Justice,

dissenting.

North Dakota should provide compensation for injury to persons who are called to perform a “civic responsibility” such as jurors. Presumably, if the Legislature were faced directly with the question of whether or not a person who is injured while in the performance of duties as a juror should receive coverage, it would agree with that conclusion for if a juror need not be well paid for their efforts [$25.00 per day. See § 27-09.1-14, NDCC] a person nevertheless should be compensated for injuries incurred while serving as juror. Having arrived at that conclusion, should we now attempt to recast the mold of a public officer to fit that of a juror in order to permit compensation to be paid? I like the result reached by the majority but I am less enthralled with the process by which that result is reached.

Although I do not necessarily disagree with the analysis engaged in by the majority, one salient factor is suppressed: Public officials, as § 65 — 01—02(14), NDCC, reflects, may be either elected or appointed but they choose to serve at their own volition. See § 44-01-04 [failure to qualify for office creates a vacancy]. Jurors, on the other hand, have no choice but to accept jury duty unless excused by the court. NDCC §§ 27-09.1-01 [obligation to serve as juror], 27-09.1-06 [penalties for failure to perform jury service]. Surely, of all the attributes of a public office, the threshold requirement must be that one assumes the office voluntarily. If service is not voluntary, the other attributes of a public official are irrelevant. If there is no contract between the State and the juror, such as to constitute the juror an employee of the State, it appears to me that same omission dooms the analysis which attempts to hold that the juror is a public officer, i.e., an officer also has a contractual relationship with the State. The North Dakota statute includes a public official within the definition of “employee” so it appears that one could not be a public official without also being an employee.

If we are to engage in judicial legislation, I would do so generally, i.e., simply declare that for purposes of worker’s compensation a juror is an employee. That will at least avoid the tortured analysis of the term “public official” which may in the future require us to explain and distinguish the decision or to apply it with an illogical result. But, because I believe a juror is not included within the term “employee,” I cannot even concur in the result.

The majority cites, but does not appear to rely upon, the recent decision of Bolin v. Kitsap County, 114 Wash.2d 70, 785 P.2d 805 (1990), the only decision, other than Industrial Comm’n v. Rogers, 122 Ohio St. 134, 171 N.E. 35 (1930), the rationale of which has been rejected by all other jurisdictions considering this issue, to extend coverage to jurors. An analysis of Bolin indicates Washington would reach a contrary decision under North Dakota law. As the Bolin court notes in its opinion, the Washington statute is distinguishable from most other jurisdictions which have considered the matter in that, unlike many States which list or define employments included for coverage, the Washington statute lists only employments excluded. Jurors were not excluded. Section 65-01-02(14), NDCC, does, of course, list who is included within the term “employee,” although it also contains a provision indicating who is not included within the term. Because of the limitation both by specifically listing who is included within the term “employee” as well as • who is excluded from that term, I do not believe we have as broad authority to construe that term as the majority assumes we have. The “liberal construction” principle has been recited many times in our past opinions but in most instances those cases involved application of the compensation Act to those who were clearly employees. Few of those decisions concerned the statutory definition of “employee.”

The principle of liberal construction has its roots in § 65-01-01 and the axiom that to promote the ends intended to be secured by the enactment of the Act it must be liberally construed. Erickson v. North Dakota Workmen’s Compensation Bureau, 123 N.W.2d 292 (N.D.1963); Bordson v. North Dakota Workmen’s Compensation Bureau, 49 N.D. 534, 191 N.W. 839 (1922). An examination of the wording of § 65-01-01 and the statement therein that “the prosperity of the state depends in a large measure upon the well-being of its wage workers ...” [emphasis mine] leaves considerable doubt whether it was intended to apply to the type of service provided by a juror. While the Act is to be liberally construed to effect its purpose, the intent of the Act must be carried out and the terms of the Act cannot be ignored. Kipp v. Jalbert, 110 N.W.2d 825 (N.D.1961) [holding that a carpenter employed to assist farmer in dismantling of barn is not an employee within the provisions of the Act].

Bolin discussed the fact that jurors are involuntary workers and observed that in Washington they had implicitly held that involuntary service may be employment, citing Rector v. Cherry Valley Timber Co., 115 Wash. 31, 196 P. 653 (1921), because the Washington statute, unlike that of other States, does not define employment as an appointment or contract for hire.¹ The North Dakota statute, like that of the States which have held jurors not to be employees, defines an “employee” to mean a person engaged in hazardous employment under any “appointment, contract of hire, or apprenticeship_” The Washington court observed that, of the other States which had considered the matter, only New Jersey had a statute which did not contain the “appointment or contract for hire” language but that the New Jersey court “felt constrained to exclude jurors from coverage because the New Jersey act, unlike the Washington act, excludes casual employment.” Bolin, supra, 785 P.2d at 807. North Dakota also excludes casual employment from coverage. Section 65-01-02(14)(b)(l) [The “term [employee] does not include: (1) Any person whose employment is both casual and not in the course of the trade, business, profession, or occupation of that person’s employer.”]

Finally, jury service has apparently heretofore not been considered employment for the purpose of assessment of premiums against the County or State. The payment of the premium by the employer is not a prerequisite for recovery from the Workers Compensation Fund, Cf. Pearce v. North Dakota Workmen’s Compensation Bureau, 68 N.D. 318, 279 N.W. 601 (1938). But we, nevertheless, ought to be cautious before requiring coverage by judicial fiat for a group of persons for whom the Bureau has not heretofore required the payment of premiums lest we endanger the stability of the Fund at the expense of those day-to-day wage earners for whom the Act was intended.

Because, given the definition of “employee” as contained in the statute, I believe the issue of workers’ compensation is a legislative, not a judicial matter, I regretfully dissent.

1 . North Dakota has, by specific legislation, included certain involuntary employees within the coverage of the Act. See NDCC § 65-06.2-02, specifying coverage for inmates in the performance of work in connection with the maintenance of the institution or with any industry maintained therein or with any public service activity. Section 65-06.2-03 authorizes, but does not require, any county or city to elect to cover its inmates with workers compensation benefits.

Inmates, some of whom are employed in institutional industries for compensation, are, except for the fact that the employment is not voluntary, clearly engaged in employment within the statutory definitions. , Nevertheless, the Legislature believed it necessary to enact specific legislation to include them within the coverage. If that was necessary for the inmates because their employment was not voluntary, it would also appear necessary for jurors.