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Trial court didn’t improperly restrict voir dire of 6-person jury in traffic forfeiture case

Washington County v. Joseph Harvey Bingen, 2013AP1171, District 2, 2/5/14; court of appeals decision (1-judge; ineligible for publication); case activity

The trial court didn’t erroneously exercise its discretion by denying Bingen’s request for additional voir dire of prospective jurors for his first-offense OWI trial. In particular, Bingen was not able to ask if any jurors had been the victims of or convicted of drunk driving. (¶¶2-3, 6). Though the statute granting the right to a six-person jury in traffic forfeiture cases provides that “[t]he judge shall permit voir dire examinations and challenges for cause,” § 345.43(3)(b), the court’s voir dire was sufficient do determine whether there were any jurors who could not serve fairly in an OWI trial:

¶7        After asking if prospective jurors knew any of the parties, attorneys, or witnesses, the trial court asked the prospective jurors if any of them “for any reason has an interest in how this case is going to come out.” The trial court then concluded that there was no juror who “shouldn’t be on the jury for some other reason that wouldn’t show up in your jury questionnaire.” The trial court concluded, “So I’m satisfied that the six people who have been called forward can serve as our jury.”

The court doesn’t say so, but it effectively reads “shall permit voir dire” to mean “may permit voir dire.” Yet § 345.43(3)(b) contains four “shalls” and one “may” (“…either party may strike 5 names”). Use of the word “shall” creates a presumption that the action is mandatory, and that presumption is strengthened where the legislature uses the word “may” in the same statute because that use demonstrates “the legislature was aware of the different denotations and intended the words to have their precise meanings.” Karow v. Milwaukee County Civil Service Comm’n, 82 Wis. 2d 565, 570-71, 263 N.W.2d 214 (1978).

Of course, even where “shall” and “may” are used in the same statute, “shall” may be construed as directory if such a construction is “necessary to carry out the legislature’s clear intent.” Id. In addition to not acknowledging that it is construing “shall” to mean “may,” the court doesn’t explain why that construction is necessary to carry out the clear intent of the legislature. And explaining that could be difficult in the face of the legislative history cited in Bingen’s brief-in-chief (at 8-9), which shows the statute used to ban almost all voir dire and that the language was added at the behest of a judge who felt banning voir dire was unfair to both sides.

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