Washington Supreme Court Case and Opinions from FindLaw. (2023)

Toby James Marshall, Terrell Marshall Law Group PLLC, 936 N. 34th St. Ste. 300, Seattle, WA, 98103-8869, Jeffrey Lowell Needle, Advogado, 705 2nd Ave. Ste. 1050, Seattle, WA, 98104-1759, para o Requerente. Karen Astrid Pool Norby, Heidi Joanne Jacobsen-Watts, King Co. Ministério Público, David J. Hackett, King County Administration Building, 500 4th Ave. Ste. 900, Seattle, WA, 98104-2316, Janine Elizabeth Joly, Office of the Prosecuting Attorney, 500 4th Ave., Seattle, WA, 98104-2337, Prosecuting Atty. Condado de King, King Co. Pros./App. Supervisor de Unidade, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104, para o Requerido. Michael Craig Subit, Frank Freed Subit e Thomas LLP, 705 2nd Ave. Ste. 1200, Seattle, WA, 98104-1798, Cynthia J. Heidelberg, Breskin, Johnson & Townsend, 1000 2nd Ave. Ste. 3670, Seattle, WA, 98104-1053, para Amicus Curiae em nome da Washington Employment Lawyers Association. Elizabeth Grace Ford, Seattle University School of Law, 1215 E. Columbia St., Seattle, WA, 98122-4419, Danielle Alvarado, Fair Work Center, 116 Warren Avenue N., Suite A, Seattle, WA, 98109, para Amicus Curiae em nome da Fair Work Center. Jamal N. Whitehead, Schroeter Goldmark Bender, 810 Third Avenue, Suite 500, Seattle, WA, 98104-1657, Nancy Lynn Talner, ACLU-WA, Po Box 2728, Seattle, WA, 98111-2728, para Amicus Curiae em nome de União Americana das Liberdades Civis de Washington. Robert S. Chang, Escola de Direito da Universidade de Seattle, 901 12th Ave., Seattle, WA, 98122-4411, Melissa R. Lee, Jessica Levin, Escola de Direito da Universidade de Seattle, 901 12th Ave., Korematsu Center For Law & Equality, Seattle, WA, 98122-4411, para Amicus Curiae em nome de Fred T. Korematsu Center for Law and Equality. Anita Khandelwal, La Rond Baker, King County Departamento de Defesa Pública, 710 2nd Ave. Ste. 1000, Seattle, WA, Gordon Brennan Hill, King County DPD, ACA Division, 710 2nd Ave. Ste. 700, Seattle, WA, 98104-1724, para Amicus Curiae em nome do King County Department of Public Defense. Elizabeth Grace Ford, Escola de Direito da Universidade de Seattle, 1215 E. Columbia St., Seattle, WA, 98122-4419, para Amicus Curiae em nome dos Direitos dos Trabalhadores da Universidade de Seattle. Nancy Lynn Talner, Antoinette M. Davis, American Civil Liberties Union de Washington, Po Box 2728, Seattle, WA, 98111-2728, para Amicus Curiae em nome da American Civil Liberties Union of Washington Foundation. Rita Joan Griffith, advogada, 4616 25th Ave. Ne, Pmb 453, Seattle, WA, 98105-4523, Thomas E. Weaver Jr., advogada, Po Box 1056, Bremerton, WA, 98337-0221, Teymur Gasanovich Askerov, Black & Askerov, PLLC, 705 2nd Ave. Ste. 1111, Seattle, WA, 98104-1720, para Amicus Curiae em nome da Washington Association for Criminal Defense Lawyers. Jeffery Patton Robinson, Advogado, 810 3rd Ave. Ste. 500, Seattle, WA, 98104-1619, Twyla Carter, ACLU National, 125 Broad St. Fl. 18, New York, NY, 10004-2427, Renika Moore, ACLU, 125 Broad Street, 18th Floor, New York, NY, 10004, para Amicus Curiae em nome da American Civil Liberties Union. Tarra Denelle Simmons, Advogada, 110 Prefontaine Pl. S. Ste. 502, Seattle, WA, 98104-2626, para Amicus Curiae em nome do Civil Survival Project. Prachi Vipinchandra Esq. Dave, Associação de Defensores Públicos, 110 Prefontaine Pl. S. Ste. 502, Seattle, WA, 98104-2626, para Amicus Curiae em nome da Public Defender Association. Smriti Chandrashekar, Advogado, 1915 2nd Ave. Apt. 2408, Seattle, WA, 98101-3167, para Amicus Curiae em nome da Associação de Advogados do Sul da Ásia de Washington. Raina Vaile Wagner, K&L Gates LLP, 925 4th Ave. Ste. 2900, Seattle, WA, 98104-1158, para Amicus Curiae em nome da Loren Miller Bar Association. Courtney Chappell, Legal Voice, 907 Pine Street, Suite 500, Seattle, WA, 98101, para Amicus Curiae em nome da Legal Voice. Hillary Ann Behrman, The Washington Defender Association, 110 Prefontaine Place South, #610, Seattle, WA, 98104-2626, para Amicus Curiae em nome da Washington Defender Association. Bonnie Stern Wasser, escritório de advocacia de Bonnie Stern Wasser, 320 W. Galer St. Ste. 201, Seattle, WA, 98119-3065, para Amicus Curiae em nome da OneAmerica. Elizabeth Ann Hanley, Schroeter, Goldmark and Bender, 810 3rd Ave. Ste. 500, Seattle, WA, 98104-1657, Stephanie Glaberson, Public Justice, 1620 L. Street Nw, Suite 630, Washington, DC, 20036, Bruce Stern, American Association for Justice, 777 6th Street N., Suite 200, Washington, DC, 20001, para Amici Curiae em nome da Justiça Pública, The American Association for Justice. Valerie Davis McOmie, Advogada, 4549 Nw Aspen St., Camas, WA, 98607-8302, Daniel Edward Huntington, Richter-Wimberley PS, 422 W. Riverside Ave. Ste. 1300, Spokane, WA, 99201-0305, para Amicus Curiae em nome da Washington State Association for Justice Foundation. Pamela Beth Loginsky, Washington Assoc. of Prosecuting Atty., 206 10th Ave. Se, Olympia, WA, 98501-1311, para Amici Curiae em nome da Washington State Association of County, Washington State Association of County Clerks.

¶1 This case involves claims against King County generally regarding jury selection and compensation and raises the following three questions: (1) whether the petitioners have standing under the Uniform Declaratory Judgments Act (UDJA), chap. 7.24 RCW, (2) if jurors are minimum wage employees under the Washington Minimum Wage Act (MWA), ch. 49.46 RCW, and (3) if RCW 2.36.080(3)1creates an implied cause of action to increase the juror's reimbursement based on the economic situation. Petitioners Nicole Bednarczyk and Catherine Selin seek a reversal of a Court of Appeals decision asserting the superior court judgment's summary dismissal of their declaratory claims, minimum wage, and disparate impact regarding jury service in King County.2We affirm the Court of Appeals.

FACTUAL AND PROCEDURAL HISTORY

¶2 Jurors have received payments under statute since 1881, before Washington became a state. 1881 Code, § 2086. RCW 2.36.150 sets the range for juror expense payments and directs county legislators to determine the amount of expense payments within that range.3King County, under its legislative authority, elected to pay King County jurors an expense payment of $10 plus mileage reimbursement, which is the same statutory fee received by jurors in 1959. See Acts of 1959, ch. 73, § 1. Although the statute allows expenses of up to $25 per day to be paid, King County, along with many other counties, has chosen the legal minimum of $10 per day. That daily rate falls below Washington's minimum wage of $12 an hour ($84 for a seven-hour workday). RCW 49.46.020(1)(c).

¶3 Courts have historically struggled with low response rates to juror subpoenas, which is a complex issue with many taxpayers, including undeliverable subpoenas and low juror reimbursement. Studies were conducted and recommendations made to address the low juror response rates. In 2000, the Washington State Jury Commission recommended that "[l]ilegation should be drafted requiring that current rates be increased, with the increase funded by the state." Wash. State Jury Comm'n, Report to the Board for Judicial Administration, on x (July 2000), https://www.courts.wa.gov/committee/pdf/Jury_Commission_Report.pdf. In 2006, the legislature authorized a research project in selected jurisdictions to assess whether increasing juror expense reimbursement to $62 per day plus mileage reimbursement would improve juror participation. Laws of 2006, chap. 372, ¶903. Although the pilot did not significantly improve juror participation, 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].

¶4 In 2016, the Petitioners filed this class action claim in the Pierce County Superior Court asserting claims against King County alleging that (1) jurors are employees and entitled to minimum wage and (2) RCW 2.36.080 (3) creates an underlying cause of action for disparate impacts based on economic status.4Petitioners allege that low expense reimbursement rates have a greater impact on low-income jurors, and claim that this causes many jurors to seek excuses based on financial hardship or simply not respond to the subpoena.

¶5 Indeed, in 2012, Petitioner Bednarczyk was summoned to jury duty in King County and requested and received an apology for difficulties in jury service.5In 2015, Selin was summoned 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.

¶6 Petitioners were included on the grand jury list from which King County randomly selects citizens for jury service.6No dispute is made regarding the methodology used to compile the list.

¶7 The superior court granted King County's motion for summary judgment and dismissed the petitioners' claims. The petitioners appealed. The Court of Appeals stated in a 2-to-1 decision, holding that the petitioners lacked standing under the UDJA, there was no implied cause of action for disparate impact, and the jurors were not MWA employees. Judge Bjorgen disagreed, opining that the petitioners met their onus of legitimacy and that there was an implied cause of action for disparate impacts. The dissenting opinion did not address the MWA issue. Rocha v. King County, 7 Wash. App. 2d 647, 435 P.3d 325, revision granted, 193 Wash.2d 1017, 448 P.3d 64 (2019).

ANALYSIS

¶8 We review summary judgment orders and statutory interpretation issues again. Summary judgment is appropriate if, viewing the facts and reasonable inferences in the light most favorable to the immovable party, no genuine question of material fact exists and the moving party is entitled to judgment as a matter of law. Bostain v. Food Express, Inc., 159 Wash.2d 700, 708, 153 P.3d 846 (2007).

EU

¶9 First, we address whether petitioners have standing under the UDJA. We think that legitimacy is satisfied for purposes of analyzing the claims made.

¶10 Legitimacy is determined by a two-part test: (1) whether the interest sought to be protected is “ 'indisputably within the zone of interests to be protected or regulated by the law or constitutional guarantee in question' ” and (2) whether the petitioners alleged “ ' “actual damage”. ’ ” Grant County Fire Warden. Dist. At the. 5 v. City of Moses Lake, 150 Wash.2d 791, 802, 83 P.3d 419 (2004) (emphasis added) (inner quotes omitted) (citing Save a Valuable Env't v. City of Bothell, 89 Wash.2d 862, 866, 576 P.2d 401 (1978)). When we are faced with an issue of significant public interest, legitimacy is analyzed in terms of the public interests presented, making a more liberal and less rigid analysis. See Farris v. Munro, 99 Wash.2d 326, 330, 662 P.2d 821 (1983).

¶11 The defense of the petitioners' UDJA claims is premised on the existence of the statutory rights that the petitioners assert. Since we must analyze the merits of the petitioners' arguments to determine whether the petitioners have rights that can be invoked in a UDJA action, standing is satisfied for purposes of analyzing these claims, and we arrive at the merits.

II

¶12 Next, we address whether jurors are employed for minimum wage purposes. Although the minimum wage and implied cause of action claims are related, our analysis of the implied cause of action claim depends somewhat on our determination of whether jurors are MWA employees. We feel, for various reasons, that the jurors are not employees of the MWA under Chapter 49.46 RCW or otherwise.

¶13 Returning to statutory provisions, cases involving analysis of statutory interpretation begin with statutory language. The MWA defines “employee” broadly as “any individual employed by an employer” and defines “employ” as “permitting work”. RCW 49.46.010(3), (2). Rather than being defined primarily by included jobs, the MWA draws from the definition of “employee” narrower provisions that operate as exemptions. We interpret the MWA exemptions narrowly; exemptions apply only to situations that are clearly and unambiguously consistent with the terms and spirit of the legislation. Drinkwitz v. Alliant Techsystems, Inc., 140 Wash.2d 291, 301, 996 P.2d 582 (2000). The MWA excludes from the definition of “employee”

[a]any individual involved in the activities of a[ ] ․ state or local government body or agency ․ where the employer-employee relationship does not actually exist or where services are provided to such organizations free of charge. If the individual receives reimbursement rather than compensation for out-of-pocket expenses normally incurred or receives a nominal amount of compensation per unit of volunteer service provided, there is no employer-employee relationship for purposes of this section.

RCW 49.46.010(3)(d). Based on this language, jurors are excluded from the definition of “employee” because they receive reimbursement rather than remuneration while engaged in the activities of a local government agency. The legislature's characterization of juror payments as expense payments in RCW 2.36.150 is consistent with this view. See also Final B. Rep. in Substitute S.B. 6261, in 1, 58th Leg., Reg. Session (Wash. 2004) (“Juror compensation received by federal employees must be credited to the employee pay. However, payments made to reimburse jurors for their out-of-pocket expenses need not be credited to the employee pay.”).

¶14 The Petitioners claim that this exception applies only to volunteer employees who provide free services, based in part on legislative history. See Am. of the Appellants. Opening Br. at 36-39 (Wash. Ct. App. No. 51823-6-II (2017)). The second sentence of the above provision details the circumstances in which the employer-employee relationship does not exist. Contrary to the petitioners' assertion, this clause supplements the meaning of “employer-employee relationship” rather than applying only to the portion of free services described in the first sentence. While the meaning of this provision may have its roots in targeting employee volunteers, the meaning is also reflected in the statutory language used.

¶15 The structure of this provision states 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”. Statutory language in RCW 49.46.010(3)(d) states that where there is no employer-employee relationship, the MWA does not apply. According to statutory language, there is no employer-employee relationship when individuals are involved in the activities of a local government entity and receive reimbursement rather than compensation, which occurs in the case of jurors receiving expense reimbursements under RCW 2.36. 150.

¶16 In further support of their argument, the Petitioners rely on our decision in Bolin v. Kitsap County, where we deemed that a juror who was injured in a car accident driving home from jury duty was an employee acting on the job and entitled to benefits under the Industrial Insurance Act (IIA), Title 51 RCW . 114 Wash.2d 70, 71-72, 785 P.2d 805 (1990). The Court of Appeals held that Bolin was distinguishable because Bolin decided the status of jurors under the IIA, not under the minimum wage provision at issue here. We agree.

¶17 Our ownership in Bolin was not so extensive as to extend beyond the confines of The IIA. Bolin focused on the IIA's specific language and how the IIA "only listed excluded jobs," citing RCW 51.12.020. Bolin, 114 Wash.2d at 72, 785 P.2d 805 (“Jury service is not on the list of these excluded jobs.”). Pursuant to that specific statutory analysis, Bolin considered the jurors to be employees for purposes of The IIA. Critically, the MWA's definition of an employee differs from the IIA's because the "no employer-employee" relationship clause under the MWA is not found in the IIA. Bolin is limited to juror status under The IIA and does not control MWA review.

¶18 Petitioners further assert that application of the “economic realities test” to employment of Anfinson v. FedEx Ground Package System, Inc., 174 Wash.2d 851, 281 P.3d 289 (2012), would result in the application of the MWA to jurors, but we do not need to get to the “economic realities test” because we found that jurors are exempt from the MWA under its express provisions. However, we observe that jurors occupy a unique and important place in our society. The US Supreme Court and other courts have recognized that “[t]he service of rejoicing is a duty as well as a privilege of citizenship; it is a duty that cannot be shied away on grounds of inconvenience or diminished purchasing power. Thiel v. S. Pac. Co., 328 U.S. 217, 224, 66 S. Ct. 984, 90 L. Ed. 1181 (1946). Jury service “ 'offers 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 the 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) (citing 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 basic exercise of our democratic values. State v. Saintcalle, 178 Wash.2d 34, 50, 309 P.3d 326 (2013) (plural opinion).

¶19 Based on the unique nature of jury service, it follows that jurors are not employees in the traditional sense of the term. Neither the amici nor the petitioners cited any decision from any jurisdiction in which a court has found that jurors are employed for minimum wage purposes. In contrast, King County points to several cases to the contrary. In Brouwer v. Metropolitan Dade County, the court held that the jurors were not employees for purposes of the Fair Labor Standards Act, 29 U.S.C. §§ 201-219. 139 F.3d 817 (11th Cir. 1998). There, the court adopted the district court's reasoning and cited the following in support of its position:

“Jurors are completely different from state [or county] officials. Jurors do not apply for jobs, but are randomly selected from voter registration lists. Jurors are not interviewed to determine who is best qualified for a position; the State summons all available persons who meet the basic requirements. ․ Jurors do not volunteer their work to the state, but are required to serve. Jurors do not receive a salary, rather they receive a statutory amount regardless of the number of hours worked. Jurors are not eligible for employment benefits, do not accrue vacation time, annual or sick leave, and are not eligible for health or life insurance. The state has no power to fire jurors for poor performance, but must accept their verdict. In short, there is no indication of a working relationship between state court jurors and Dade County.”

Brouwer, 139 F.3d at 819 (changes in original). Other courts have similarly held that jurors are not employed for minimum wage purposes. See, for example, Patierno v. State, 391 So.2d 391, 392-93 (1980); St. clair v. Commonwealth, 451 S.W.3d 597, 622-23 (Ky. 2014); North Carolina v. Setzer, 42 N.C.App. 98, 256 S.E.2d 485, 488 (1979). We agree.

¶20 We consider jurors not to be minimum wage employees for purposes of the MWA because no statutory employer-employee relationship exists under RCW 49.46.010(3)(d) or otherwise.

III

¶21 The third issue raised is whether RCW 2.36.080(3) creates an implicit cause of action for disparate impacts based on economic status, allowing jurors to seek greater reimbursement.

¶22 In determining whether a statute creates an implied cause of action, we use the three-factor analysis set forth in Bennett v. Hardy, 113 Wash.2d 912, 920-21, 784 P.2d 1258 (1990). The factors are (1) whether the author is within the class for whose “ 'special' ” benefit the law was enacted, (2) whether the legislative intent supports the creation or denial of a remedy, and (3) whether the implication of a remedy is consistent with the underlying purpose of the legislation. Bennett, 113 Wash.2d at 920, 784 P.2d 1258. We argue that the common law may establish a remedy when a law provides for a right but does not provide a specific remedy. Bennett, 113 Wash.2d at 919-21, 784 P.2d 1258. Petitioners here seek an implied solution to a prospective juror's right to protection from exclusion on the basis of economic status under former RCW 2.36.080(3) . Petitioners do not dispute the provision for payment of expenses under RCW 2.36.150 (between $10 and $25 per day plus mileage), but claim that there is an implied cause of action for jurors to sue for increased payments under RCW 2.36.080 (3) in addition to expense reimbursement payments authorized by RCW 2.36.150.

¶23 Former RCW 2.36.080 (2015) provides the following regarding jurors:

(1) It is the policy of this state that all persons selected for jury service be randomly selected from a fair section of the population ․, and that all eligible citizens be given the opportunity ․ be considered for jury service in this state and are required to serve as jurors when called for that purpose.

(2) It is the policy of this State to maximize the availability of State residents for jury duty. It is also the policy of this state to minimize the burden on prospective jurors, their families and employers resulting from jury service. Jury tenure and jury service should be defined in as short a timeframe as possible, given the length of the jury source list for the judicial district. The ideal jury term is one week or less. Ideal jury duty is one day or one trial, whichever is longer.

(3) A citizen shall not be excluded from jury service in this state because of ․ economic status.

(4) This section does not affect the right to peremptory objections under RCW 4.44.130.

¶24 In Bennett, former employees sued their employer, which employed fewer than eight employees, alleging age discrimination. As his employer had fewer than eight employees, no cause of action existed under the Washington Anti-Discrimination Act (WLAD), ch. 49.60 RCW, which by its express terms applied only to employers with eight or more employees. However, a separate statute, RCW 49.44.090, declared that age discrimination is an unfair practice. We maintain that RCW 49.44.090 created an implied cause of action for age discrimination and that no legislative intent existed indicating that WLAD intended to limit the application of RCW 49.44.090. In reaching this decision, we rely on the (Second) Reform of Torts § 874A (Am. Law Inst. 1979), which provided that

“[when] a legislative provision protects a class of persons by proscribing or enforcing certain conduct, but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate to further the purpose of the legislation and necessary to secure the effectiveness of the provision, grant an injured class member a right of action”.

Bennett, 113 Wash.2d at 920, 784 P.2d 1258. We borrow the three factors from the federal implicit test of action. Applying these factors, we note that RCW 49.44.090 set out a clear legislative intent and purpose aimed at tackling the problem of age discrimination.

¶25 The Court of Appeals opinions below differ on how these factors apply. Both the majority and the dissent felt that the first factor was satisfied. Most felt that the second and third factors were not satisfied, arguing that the legislature only intended to protect the opportunity to serve and did not intend to guarantee the financial capacity to serve. The dissent disagreed, arguing that limiting exclusion protection to the opportunity to serve would allow intentional exclusion based on economic status as long as jurors were included on the main jury list. The dissent concluded that the second and third factors were satisfied, arguing that King County created a structural incentive for jurors to seek apologies for hardship for failing to pay above statutory rates.

¶26 In reviewing the express statutory provisions, it is difficult to discover that the statute, allowing excuses for hardship through its intended operation, works to effect a systematic exclusion of jurors on the basis of economic status. Nothing in the statutory language of RCW 2.36.080 shall be construed as exclusive. Subsection (1) contains language adopting a policy as express and inclusive as it could be written. RCW 2.36.080(1) (“[A]ll eligible citizens have the opportunity ․ to be considered for jury service ․” (emphasis added)). Subsection (2) expresses a policy of maximizing participation and minimizing the burden of jury service. And subsection (3) expresses that exclusion should not be based on economic status or other protected status.

¶27 It makes no sense to read subsection (3) to imply a cause of action for economic status discrimination where the provision says otherwise—the alleged “exclusion” occurs because judges grant hardship requests made by jurors under RCW 2.36.100 . Even when we engage in an in-depth analysis of the Bennett Factor, interpreting the facts in the light most favorable to the Petitioners' contention that low-income jurors are forced to file hardship claims because of the low compensation rate, no cause of action implied can be found.

¶28 As for Bennett's first factor, the statute protects citizens from being excluded from jury duty due to economic circumstances. We need not engage in a detailed analysis of this factor because even if we assume that this factor is satisfied it would not change the result as we find that the other two factors in the Bennett test are not met.

¶29 To aid our analysis, it is instructive to look at the case from which Bennett borrowed the three-factor test. Regarding the second and third factors, the Ninth Circuit Court of Appeals wrote that

[the] plaintiffs must establish that Congress intended to provide the private remedy they ask us to suggest, or at least that it is consistent with the legislative scheme. Although a private remedy may be inferred from the plain language of the statute, the statutory structure, or some other source, we “ 'will not insert a remedy into a statute, no matter how salutary, that Congress does not intend to provide, ’” even though the plaintiff can show that he is a member of the class for whose benefit the statute was enacted and that there is no impediment of state law to the implication of a remedy.

In rewash. Pub. Sec feeding system. Litig., 823 F.2d 1349, 1353 (9th Cir. 1987) (the second and third factors were also referred to as “congressional intent” and “statutory consistency”) (citing Mass. Mut. Life Ins. Co. v Russell, 473 U.S. 134, 145, 105 S. Ct. 3085, 87 L. Ed. 2d 96 (1985) (citing California v. Sierra Club, 451 U.S. 287, 297, 101 S. Ct. 1775, 68 L. Ed. 2d 101 (1981))). The foregoing suggests that Bennett's second factor requires us to determine whether the legislative intent supports the implication of the requested remedy, rather than any remedy, and suggests that Bennett's third factor considers the entire legal scheme to determine whether the requested remedy is consistent.

¶30 Here, as to the second factor, even though legislative intent might lightly support an implied remedy for jurors who are excluded on the basis of a protected trait under RCW 2.36.080(3), it does not support the requested remedy of increased pay sworn. The statute's language evidences an intent to prohibit acts of exclusion, rather than requiring counties to pay minimum wage to discourage jurors from self-excluding themselves by seeking excuses for hardship.

¶31 Furthermore, the statutory term “deleted” implies that direct action must be taken to “delete”. “Exclude” is defined as “exclude”, “preclude participation, enjoyment, consideration or inclusion”, “exclude” or “expel”. Webster's Third New International Dictionary 793 (2002). The statutory language and the general statutory scheme express a policy of inclusion and cannot be interpreted as the other way around. If we accept the Petitioners' argument, the meaning of excluding would encompass hardship excuses under RCW 2.36.100 and judges would be, in effect, “excluding” jurors every time a hardship excuse is granted.

¶32 Petitioners claim that Thiel 7 and Taylor8support that implies a cause of action for the alleged deletion in this case. However, Thiel and Taylor support banning express acts of exclusion, rather than supporting requiring counties to pay above statutory fees in an effort to discourage jurors from self-excluding. In Thiel, the county excluded daily wage earners prior to draft because the county anticipated that such wage earners would seek hardship exemptions. 328 U.S. at 224, 66 S.Ct. 984. In Taylor, women were required to opt-in before being called to jury duty, thus excluding women, keeping them off the jury lists until they accepted. 419 U.S. at 523, 95 S.Ct. 692. In both Thiel and Taylor, jurors were not called and therefore excluded from the opportunity to serve. Here, by contrast, petitioners were included on the main jury list and served or self-excluded by requesting an apology for difficulties.

¶33 Petitioners argue that because former RCW 2.36.080(2) establishes a policy of maximizing juror availability and minimizing the burden on “prospective jurors, their families, and employers,” a cause of action to increase juror pay jury promotes legislative intent. However, the sentences that follow these provisions provide a policy of setting jury terms as short as possible, evidencing the intent to provide more stringent methods for enforcing policies under RCW 2.36.080(2). The statute does not create any exclusions. Rather than excluding low juror pay rates, the statute includes all persons eligible for summons, regardless of economic status.

¶34 Legislative history also provides evidence that juror pay was not intended to be tied to the minimum wage. When the legislature amended RCW 2.36.080, adding economic status protections, it also amended RCW 2.36.150, requiring counties to reimburse jurors between $10 and $25 a day. Laws of 1979, 1st Ex. Sess., chap. 135, §§ 6, 7. In 1979, Washington's minimum wage was $2.30 an hour, which equals $16.10 for a seven-hour day. Laws of 1975, 1st Ex. Sess., chap. 289, § 2(1). The same legislature that enacted the protection on which the petitioners rely amended RCW 2.36.150, explicitly authorizing counties to reimburse jurors for each day of service at a rate based on daily attendance, not a rate based on "hours worked" .

¶35 As to Bennett's third factor, the overall statutory scheme does not support the implication of the requested remedy of increased juror pay. The discussion of the second factor above applies to some extent to our analysis of the third factor. As King County argues and the majority of the Court of Appeals has held, RCW 2.36.080(1) does not support the implication of a wage increase because it establishes a policy that “qualified citizens have the opportunity ․ to be considered for jury service,” which suggests that this policy is limited to the main jury list. Rock, 7 Wash. Ap. 2d at 654. The Court of Appeals Dissenting Opinion opined that the protection against exclusion under RCW 2.36.080(3) cannot be limited to the opportunity to serve because such a reading would allow intentional acts of exclusion as long as jurors were included on the list. of the main jury. While this argument has some merit, the policy articulated in .080(1) applies only to the opportunity to serve through its express language. Applying a broad interpretation to the deletion protection in .080(3) does not expand the scope of the policy articulated in .080(1).

¶36 We found no legislative intent to support an implied cause of action, allowing jurors to seek a remedy for damages or requiring increased pay. RCW 2.36.080 contains no reference to compensation. Instead, RCW 2.36.150 sets reimbursement rates, and the legislature provided an option for jurors who would still experience significant hardship despite short jury terms - excused in a show of "undue hardship" under RCW 2.36 .100. (Emphasis added.) We believe that RCW 2.36.080(3) does not create an implied cause of action to allow jurors to sue for increased reimbursement rates.

4

¶37 Finally, the Petitioners and various amici urge this court to invoke our inherent judicial authority – irrespective of the statutes in question – to require payment of jurors higher fees. The most relevant case invoked for this argument is In re Salary of Juvenile Director, 87 Wash.2d 232, 251, 552 P.2d 163 (1976) (plurality opinion).9We do not need and will not, however, get to these arguments because they exceed the scope of this case, not having been raised in the complaint or in the courts below.10Furthermore, any exercise of our inherent authority in the area of ​​jury pay would likely affect counties throughout the state, and this case is limited to claims against King County, not the other 38 counties or the state as a whole.

¶38 While we do not reach the inherent arguments of authority, we take this opportunity to comment that low juror reimbursement is a serious problem that has contributed to low juror call response rates. Concerns raised by amici and petitioners regarding 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 must continue to cooperate with the other branches of government in an effort to resolve the longstanding issues identified by the petitioners and amici, these concerns are best resolved in the legislative arena.

CONCLUSION

¶39 We affirm the Court of Appeals. We believe that legitimacy is satisfied for the purposes of analyzing the UDJA's claims. We feel that jurors are not employees entitled to minimum wage under the MWA or otherwise. We find that there is no implied cause of action to require a salary increase for jurors under former RCW 2.36.080(3).

¶40 I agree with the majority that plaintiffs have standing under RCW 7.24.010, that jurors are not employees under the Minimum Wage Act, ch. 49.46 RCW, and that RCW 2.36.080(3) does not create an implied cause of action for increased juror pay.

¶41 However, I cannot adhere to Bennett's analysis of most factors. See Bennett v. Hardy, 113 Wash.2d 912, 920-21, 784 P.2d 1258 (1990). Specifically, I agree with the disagreement that a $10 per day reimbursement fee for jury pay systematically excludes individuals from jury duty based on their economic status. As a result, our jury groups do not adhere to the state's policy that jurors are selected from "a fair section of the population." RCW 2.36.080(1). That said, RCW 2.36.080(3) does not create a private right of action to increase juror pay to remedy this exclusion. Insofar as the statute may imply some other cause of action, that issue is not before the court in this case. Therefore, I respectfully agree in part and disagree in part.

ANALYSIS

¶42 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 under RCW 2.36.080(3). Majority at 16-28. However, I do not agree that the exoneration is voluntary and, therefore, not exclusive. I went. at age 15. Inadequate juror pay is often a barrier to jury service that disproportionately affects low-income and minority populations. I would say that the system is exclusive, but the remedy for this exclusion is up to the legislator, not the courts.

A. The plaintiffs are within the class for whose special benefit the statute was enacted

¶43 Most do not decide whether plaintiffs satisfied the first element of the Bennett test. ID Instead, most claim that no analysis of this factor is necessary "because even if we assume that this factor is satisfied, it would not change the result." I went. At this point, I would argue that the Court of Appeals correctly found that "the plain language of the statute protects persons from being excluded from jury duty on the basis of economic status", therefore plaintiffs fall within the class for whose benefit RCW 2.36. 080 (3) was enacted. Rocha v. King County, 7 Wash. App. 2d 647, 654, 435 P.3d 325 (2019); see also dissent in 3.

B. Jurors in economic hardship are systematically excluded from jury service, but their appeal is not an implied cause of action to increase juror pay pursuant to RCW 2.36.080(3)

¶44 I agree with the majority that the legislative intent of RCW 2.36.080(3) “does not support the requested remedy of increased juror pay” and that “the general statutory scheme does not support the implication of the requested remedy of increased juror pay” sworn. Majority at 17, 19. Furthermore, I agree with the State that insinuating a cause of action to increase juror pay would be an impermissible encroachment on the budgetary authority of the legislature. Resp't King County's Supl. Br. on 15-17. This is not to say, however, that RCW 2.36.080(3) does not provide for any private right of action. It is just to say that the statute does not create the specific private right of action at issue in this case.

¶45 Although I join the majority opinion that the plaintiffs do not satisfy the second and third points of the Bennett test, I do not agree with their reasoning. Specifically, I disagree with the majority's assertion that "it is difficult to find that the statute, allowing excuses for hardship through its intended operation, works to effect a systematic exclusion of jurors on the basis of economic status." Majority of 15. On the contrary, the pernicious effect of low juror pay is the systematic exclusion of all eligible citizens who simply cannot afford to participate.

¶46 This is not a new revelation. In 2017, the Commission on Minorities and Justice studied jury diversity in Washington state. The commission's Jury Diversity Task Force determined that "financial difficulties are the second biggest reason to excuse a potential juror, behind undeliverable summons." Jury Diversity, Minority and Justice Task Force. 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-TFB]. Furthermore, the task force highlighted the troubling nexus between race and poverty that affects jury service, noting that “low-income and minority populations are disproportionately affected by the financial difficulties of jury service” and “are disproportionately likely to seek excuses due to economic difficulties”. I went. at 3, 2. Thus, the result is racially disproportionate juries. Given these conclusions, I cannot agree with the majority that the statute does not effect the exclusion simply because “[n]othing in the statutory language of [former] RCW 2.36.080 can be read as exclusionary”. Majority at 15.

¶47 Likewise, most cite the legislative history of RCW 2.36.150 as evidence that "jury pay was not intended to be tied to the minimum wage." I went. at 19 (emphasis added). Most note that the legislature amended RCW 2.36.150 in 1979 to set a county reimbursement rate of between $10 and $25 a day, and explain that “[i]n 1979, Washington's minimum wage was $ $2.30 per hour, which equals $16.10 for a seven-hour day.” I went. While a compensation rate of between $10 and $25 a day may not be directly linked to the minimum wage, it is significant that the reimbursement rate was much closer to the minimum wage when the statute was changed. Today, the state minimum wage is $13.50 an hour, which equals $94.50 for a seven-hour day. RCW 49.46.020(1)(d). In King County, where jurors are paid $10 a day, the minimum wage is even higher.11Consequently, a King County worker earning $15.75 an hour earns $110.25 over the course of a seven-hour workday. This, in turn, means that potential jurors must choose between significant earnings and civic participation that provides a small fraction of their daily pay. Furthermore, as inflation and the cost of living continue to rise, a daily reimbursement rate of $10 means that jurors will increasingly find jury service out of reach if their employer cannot offer comparable pay as an incentive. for the jurors to serve.

¶48 For these reasons, I would argue that RCW 2.36.080(3) does in fact exclude jurors from service on the basis of their economic status. While the statute does not guarantee a seat on a jury if called, current compensation rates virtually guarantee that juries will not represent a fair section of our communities when jury selection favors those who can pay to serve. This irritating problem has a clear solution; however, the remedy is not for the courts.

CONCLUSION

¶49 I would maintain that plaintiffs have standing and jurors are not employees for purposes of the Minimum Wage Act. Furthermore, I would argue that RCW 2.36.080(3) does not create an implied cause of action to increase juror pay because the second and third points of Bennett's test are not satisfied. That said, we must recognize that inadequate juror pay systematically excludes low-income jurors, to the detriment of our justice system. It is time for the legislature to review this issue. Therefore, I respectfully agree in part and disagree in part.

¶50 The constitutional right to a fair jury made up of a representative section of society is a fundamental component of our democratic system. Const. art. I, §§ 21, 22; Const. from the US change. SAW. It would be difficult to overstate the benefits of jury service to the court, the community, and jurors themselves. As Alexis de Tocqueville wrote nearly two centuries ago:

“[The] institution of the jury elevates the people themselves, 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 everyone feel the duties they must fulfill towards society; and the part they assume in government. By compelling [individuals] to turn their attention to matters which are not theirs alone, it eliminates that individual selfishness which is the blight of society.

“․.

“I don't know if the jury is useful for those in litigation; but I am sure it is highly beneficial to those who decide the dispute; and I consider it one of the most effective means of educating the people that society can employ.

Powers v. Ohio, 499 U.S. 400, 407, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991) (most changes in original) (citing 1 Alexis de Tocqueville, Democracy in America 334-37 (Schocken 1st ed. 1961)).

¶51 Unfortunately, the citizen's right to jury service and the litigant's right to a jury made up of a fair portion of society have been severely limited throughout our history. For much of that history, jury service and the jury selection process were anything but democratic. Jeffrey Abramson, We, the Jury: the Jury System and the Ideal of Democracy 2-3 (1994).

¶52 As we strive, however imperfectly, to build a more perfect union, we must strive to build more representative juries. See, for example, City of Seattle v. Erickson, 188 Wash.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 Wash.2d 661, 667-68, 201 P.3d 323 (2009). Given our society's history, our legislature has wisely recognized that jurors cannot be excluded based on their membership in any protected class or their economic status. RCW 2.36.080.

¶53 Despite this wise acknowledgment that jurors should not be excluded because of the economic situation, the King County token pays jurors, $10 per day plus minor transportation reimbursement, performs the exclusion itself prohibited by law. When an apparently neutral practice results in the systematic exclusion of a protected category of people, it is discriminatory.12

¶54 Properly understood, the Jurors' Rights Act, RCW 2.36.080, prevents discrimination on the basis of economic status. A cause of action is implied. We can – and in this case must – suggest a cause of action when a law protects an identifiable group of people but contains no explicit enforcement mechanism. Bennett v. Hardy, 113 Wash.2d 912, 920-21, 784 P.2d 1258 (1990). We will find a cause of action (1) when the plaintiff is within the class for whose special benefit the statute was passed, (2) when the legislative intent explicitly or implicitly supports the creation of a remedy, and (3) when a remedy is consistent with the underlying purpose of the legislation.

¶55 Plaintiffs are within the class intended to be protected by the Jury Rights Act. The law specifically states that “[a] citizen shall not be excluded from jury service in this state on account ․ economic situation”. RCW 2.36.080(3). It is true that the act, like our constitutional system, requires representative jury groups and fairly selected jurors for more than just the good of the jurors. See Powers, 499 U.S. at 407, 111 S.Ct. 1364. "We have juries for many reasons, one of which is that it is a basic exercise in democratic values." State v. Saintcalle, 178 Wash.2d 34, 50, 309 P.3d 326 (2013) (Wiggins, J., lead opinion). Fully representative jury groups and fairly selected juries are also needed to make our trials fair, our trials legitimate, and our democracy inclusive. “When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room those qualities of human nature and the varieties of human experience, the range of which is unknown and perhaps unknowable.” Peters v. Kiff, 407 U.S. 493, 503, 92 S.Ct. 2163, 33 L. Ed. 2d 83 (1972). But inclusion is also for the good of individual judges; it gives them the dignity to participate in the trials of our constitutional republic which their economic status might otherwise limit. See Powers, 499 U.S. at 407, 111 S.Ct. 1364; Saintcalle, 178 Wash.2d at 50, 309 P.3d 326.13

¶56 Clearly stated legislative intent in the Jurors' Rights Act supports creation of a remedy. The legislator told us his intention:

(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 eligible citizens be given the opportunity pursuant to chapter 135, Laws from 1979 ex. session. be considered for jury service in this state and are required to serve as jurors when called for that purpose.

(2) It is the policy of this State to maximize the availability of State residents for jury duty. It is also the policy of this state to minimize the burden on prospective jurors, their families and employers resulting from jury service. Jury tenure and jury service should be defined in as short a timeframe as possible, given the length of the jury source list for the judicial district. The ideal jury term is one week or less. Ideal jury duty is one day or one trial, whichever is longer.

RCW 2.36.080. Taken as a whole, .080 articulates the legislature's intent that the burdens and benefits of jury service be widely distributed and that every eligible citizen have the opportunity to be considered. The legislature explicitly intended to include those with economic hardship in juror pools and created rights for those with economic hardship that must be respected. RCW 2.36.080(3). Without a solution, this policy will not be enforced. Those facing economic hardship will ask to be excused and the judges will appropriately grant the request. Denying a feature will make the .080(3) protections meaningless, which we won't do. See Whatcom County v. City of Bellingham, 128 Wash.2d 537, 546, 909 P.2d 1303 (1996) (citing Stone v. Chelan County Sheriff's Dep't, 110 Wash.2d 806, 810, 756 P.2d 736 (1988)).

¶57 A remedy is consistent with this purpose. The low salary and low reimbursement rate amounts to exclusion based on economic status, denying these jurors the opportunity to serve as promised in RCW 2.36.080(1). The only meaningful way to fulfill the legislature's purpose of giving everyone an opportunity to serve is to create a mechanism for claiming those rights. A name on a master list is not a significant service. Since the Jury Rights Act contains an implied remedy, the trial court erred in concluding otherwise. So I would reverse your conclusion the other way around.

¶58 I respectfully disagree with the majority that jurors' pay is capped at $25 per day under RCW 2.36.150. While the statute is not a model of clarity, read in its entirety, it does concern reimbursement from the state. See RCW 2.36.150(4). Nothing would stop the County from supplementing what the State requires.

¶59 I agree with the majority that these plaintiffs are entitled to bring their jurors' rights act claim in a declaratory judgment action under RCW 7.24.010. Under the Uniform Declaratory Judgments Act, the court has the power to declare rights. RCW 7.24.010. Plaintiffs have standing under the Uniform Declaratory Judgments Act (1) when they are within the zone of interests protected or regulated by the statute and (2) when they have suffered actual harm. I am. Legion Post No. 149 v. Dep't of Health, 164 Wash.2d 570, 593-94, 192 P.3d 306 (2008) (citing Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake, 150 Wash.2d 791, 802 , 83 P.3d 419 (2004)).

¶60 For the same reasons that the Jurors' Rights Act contains an implied recourse, these plaintiffs are within the zone of interests that the Act protects. They are entitled to the opportunity to serve. The low salary and reimbursement rate effectively deny them this right. The statute operates in that zone. Likewise, their systematic exclusion from the pool is a loss that these plaintiffs have suffered. They are being denied one of the fundamental tasks of a citizen in our democracy. Declaratory judgment is available.

¶61 I respectfully disagree.

FOOTNOTES

1. In 2018, the legislature enacted the 2018 Laws, cap. 23, § 1, amending RCW 2.36.080(3) and .080(4). Except when citing Bylaw language, this opinion quotes the current version of the Bylaws.

2. Many organizations have appeared as amici on this matter, filing the following amici briefs: a joint briefing from the Washington State County Association and the Washington State County Clerks Association; a joint brief in support of petitioners from the Washington Employment Lawyers Association, the Fair Work Center, and the Seattle University Workers' Rights Clinic; the King County Department of Public Defense; a joint paper submitted by the American Civil Liberties Union of Washington, American Civil Liberties Union of Washington Foundation, American Civil Liberties Union, Fred T. Korematsu Center for Law and Equality, Washington Association for Criminal Defense Lawyers, Civil Survival Project, Public Defender Association, South Asian Bar Association of Washington, Loren Miller Bar Association, Legal Voice, Washington Defender Association and OneAmerica; a joint summary in support of the Public Justice and American Association of Justice petitioners; and the Washington State Association for Justice Foundation.

3. “Jurors shall receive for each day of appearance, in addition to mileage ․, the following expense payments:” lower court, petit, coroner, and district court jurors “may receive up to twenty-five dollars, but in no event less than ten dollars". RCW 2.36.150.

4. The complaint originally included allegations by Ryan Rocha alleging racial discrimination under the Washington Anti-Discrimination Act, ch. 49.60 RCW, and under former RCW 2.36.080(3) (2015); however, these claims were voluntarily dismissed prior to summary judgment and are not included in this appeal.

5. It is claimed that the excuse was for financial hardship because Bednarczyk's employer failed to compensate employees for time spent performing jury duty. The letter from Petitioner Bednarczyk's employer filed with the court granting her hardship apology also provided that she was an essential figure in the small business who could not be dispensed with.

6. Although the petitioners claim they are representatives of several classes, including an economic disparity class asserted by Bednarczyk, no class was certified prior to summary judgment and dismissal.

7. Thiel, 328 U.S. em 224, 66 S.Ct. 984.

8. Taylor v. Louisiana, 419 U.S. 522, 523, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975).

9. While judges and the legal community have recognized for years that a $10 juror expense reimbursement rate is embarrassingly low, the solution has consistently been to ask the legislature to change (and increase) the rate set out in RCW 2.36.150. Likewise, the Youth Director encourages interprofessional cooperation and cautions against unrestrained exercise of our inherent judicial authority at the expense of the public's trust in the judiciary.

10. Clerk's Papers at 155-96; Report of Proceedings at 6 (During the summary judgment hearing, Mr. Needle, counsel for the petitioners, stated: “We agree that this is a matter for the legislature ․ We are simply asking the Court to interpret the statute and nothing else.”) .

11. Employers with fewer than 500 employees must offer a minimum wage of $13.50 and $15.75 an hour minimum wage, which includes paid health care or overtime wages. King County Code 3.18.050-.060.

12. Most suggest that the fact that jurors themselves ask to be excluded from jury duty means that they are not excluded by law. I disagree. The fact that the individual juror is placed in the sad position of having to request an apology because of foreseeable economic difficulties does not excuse the system that requires the request. As Judge Bjorgen wisely wrote in his dissent: Jury duty is a full-time job that can last from less than a day to weeks. For those with low-paying jobs without a jury license, the cost of jury service can be late rent payments or missed meals. For those who don't understand employers, jury duty can cost a job. Faced with such a risk, the choice to opt out is hardly voluntary. Rocha v. King County, 7 Wash. App. 2d 647, 665, 435 P.3d 325, revision granted, 193 Wash.2d 1017, 448 P.3d 64 (2019). I agree.

13. As one jurist wisely noted: We have juries for many reasons, one of which is that it is a basic exercise in democratic values. The government does not decide who goes to prison or even the gallows. Ordinary citizens exercise this right as a matter of democracy. In England, juries evolved into juries of their peers, drawn from their community. This is the grand heritage of the jury system. Saintcalle, 178 Wash.2d at 50, 309 P.3d 326 (Wiggins, J., Leading Opinion)

JOHNSON, J.

Stephens, C.J.; Owens and Gordon McCloud, JJ.; and Fairhurst and Wiggins, JJ. Pro Tem., concur.Did not participate Raquel Montoya-Lewis