Scott v. Estalella 563 So. 2d 701

SCHWARTZ, Chief Judge.

The appellant Scott was allegedly wrongfully discharged by her employer as a result of her service as a petit juror in the Federal District Court. She brought this action solely1 under section 40.271, Florida Statutes (1985)2 to recover damages provided by that act. The lower court dismissed the complaint with prejudice. We affirm that ruling on the basis of our complete agreement with Hill v. Winn-Dixie Stores, Inc., 699 F.Supp. 876, 877-78 (M.D.Fla.1988),3 which squarely and simply holds *702that, as a matter of statutory construction, section 40.271 does not apply to federal jury service.4

Affirmed.

HUBBART, J., concurs.

COPE, Judge

(dissenting).

With deference, I disagree with the conclusion reached by the majority. The phrase “in this state” should be read in its ordinary sense, which is a phrase indicating geographic location. If the legislature intended to confine the application of this statute to jury service in state courts only, it would have employed the phrase “of this state” instead of “in this state.”

That conclusion is compelled by the fact that the statute has, from the time of enactment in 1974, employed both phrases. The 1974 version of section 40.271 provided:

(1) No person summoned to serve on any grand or petit jury in this state, or accepted to serve on any grand or petit jury in this state, shall be dismissed from employment for any cause because of the nature or length of service upon such jury.

(2) A civil action by the individual who has been dismissed may be brought in the courts of this state for any violation *703of this section... ,1

§ 40.271, Fla.Stat. (Supp.1974) (emphasis added). The distinction is clear: the substantive proscription of subsection (1) applies to jurors — state or federal — seated “in this state,” while subsection (2) confers jurisdiction on the courts “of this state”— Florida courts — to redress violations of the act. Those provisions are now found in subsections 40.271(1) and (3), Florida Statutes (1987).

This interpretation is reinforced by reference to other familiar principles of statutory construction. A court should take into consideration the particular evils at which the legislation is aimed or the mischief sought to be avoided. Foley v. State ex rel. Gordon, 50 So.2d 179, 184 (Fla.1951) (en banc); Curry v. Lehman, 55 Fla. 847, 854, 47 So. 18, 20 (1908). Likewise pertinent is the state of the law already in existence which bears on the subject. Id.

In the present ease the mischief to be prevented by the enactment of section 40.-271 is the discharge of jurors from their employment “because of the nature or length of service upon such jury.” The harm is the same for any employee discharged by reason of jury service regardless of whether the service is on a state or federal jury. In 1974, when section 40.271 was enacted, no comparable federal statute existed. As section 40.271 was at that time the sole remedy for discharge by reason of jury service, it is reasonable to suppose that the drafters of the statute chose the phrase “in this state” in order to provide a remedy for citizens summoned to serve on federal, as well as state, juries.2

By contrast, the reasoning of Hill v. Winn-Dixie Stores, Inc., 699 F.Supp. 876 (M.D.Fla.1988) is unpersuasive. Hill argues that placement of section 40.271 in chapter 40, Florida Statutes, signifies an intention to confine section 40.271 to jury service in the state court system. Since chapter 40 deals with the subject of jurors, it is the most logical location for codification of section 40.271, and that would be true even if section 40.271 expressly referred to service on federal, as well as state, juries. The fact that section 40.271 was codified in chapter 40 does not, therefore, shed light on its proper interpretation.

In support of its reasoning, Hill also cites two statutes which were in existence when section 40.271 was enacted. The first is subsection 40.34(1), Florida Statutes (1973) which pertained to the payroll responsibilities of the “clerks of the several courts of record in this state whose jurors are paid from state funds....” Since the statutory language included the phrase “the several courts of record,” and since the statutory subject matter could only apply to Florida courts, it sheds no light on interpretation of the different phrase, “grand or petit jury in this state.” § 40.271(1), Fla.Stat. (Supp.1974).

Hill also relies on a portion of subsection 40.07(1), Florida Statutes (1973), but that statute is inapposite. Subsection 40.07(1) excludes from jury service any person “who shall have been convicted in this state or any federal court, or any other state, territory, or country,” of certain enumerated felonies. In context it is clear that the phrase “any federal court” was specifically chosen so as to include any federal conviction wherever occurring, whether inside or outside Florida, and that the phraseology was chosen in order to address a different problem than the one involved in section 40.271.3

*704For the reasons stated I conclude that the legislature intended to confer a substantive right on Florida citizens to be free from discharge by employers on account of jury service, whether in state or federal court. I would therefore reverse the judgment.