The opinion
ALMA WILSON, Justice,
with whom OPALA and KAUGER, Justices, join, dissenting:
I cannot join in the majority’s tacit approval of excluding a litigant from the initial orientation of a general jury panel by a chief judge of our district court. The First and Fourteenth Amendments to the Constitution of the United States guarantee access to judicial orientation of venire persons in our state courts. Open judicial proceedings assure fairness in our judicial system. 1 Because today’s opinion has a chilling affect on constitutional due process and the openness of our courts, I must respectfully dissent.
This negligence action was docketed for jury trial. Weeks before the trial date, the plaintiff filed a written request with the assigned trial judge and the chief judge that a court reporter record the proceedings for the qualification of the jury array from which the members of the jury that would hear his case would be selected. The plaintiff agreed to pay for the court reporter services in advance and engaged a shorthand court reporter to record the qualifications proceeding. The trial judge directed plaintiff to present the request to the chief judge. The chief judge refused to allow the shorthand court reporter into the jury assembly room with or without the stenographic equipment. Upon assignment of the prospective jurors to the trial court presiding in this action but prior to voir dire, plaintiff moved to quash the jury panel asserting a deprivation of due process. The defense counsel joined plaintiff’s motion. The motion to quash was overruled.
On certiorari, the plaintiff/appellant claims that the trial judge and the chief judge denied his request to record the initial proceedings conducted by the chief judge in the jury assembly room and thereby violated his constitutional and statutory due process rights. Plaintiff/appellant argues that “ ‘judicial action’ was taken by Honorable Judge Cannon when he qualified the jury array and excused jurors, ex parte, after appellant had filed a written request for court reporter to take such proceedings. Such refusal was a denial of due *81 process mandated by the Constitution of Oklahoma and the Constitution of the United States.” Plaintiff/appellant further argues such refusal was a denial of due process mandated by the court-reporting statute, 20 O.S.1981, § 106.4 2 and Funnell v. Cannon, 577 P.2d 1287 (Okla.1978). 3
Upon review of the jury selection statutes, 4 the majority opinion concludes that pre-voir dire jury selection is administrative in nature because it is not directly related to a single pending action, while voir dire jury selection is judicial in nature because it is directly related to a single action. Hence the majority opinion holds that there is no due process protection during the administrative or pre-voir dire jury selection and that the court reporting statute does not reach the administrative pre-voir dire jury selection. First, I cannot accept the majority’s finding that selection of members of the general jury panel as prospective jurors in plaintiff/appellant’s negligence action is not directly related to the action. Second, although the majority’s administrative/judicial distinction fits neatly into a narrow reading of 20 O.S.1991, § 106.4, it does not recognize the broad meaning of “judicial proceeding” set forth in Funnell v. Cannon, 5 nor does it recognize the role of the chief judge in the jury selection process as an essential component in our system of justice which must be open to the public, including plaintiff's shorthand court reporter, absent an overriding interest. 6
The administrative jury selection process is controlled by statute. 38 O.S.1991, §§ 18 through 29. 7 Title 38 O.S.1991, § 29 expressly recognizes that a party litigant may challenge any irregularity in the administrative steps for the drawing, summoning or impaneling of prospective jurors. Section 29 provides in part:
*82 ... Substantial compliance with the provisions of this Chapter, shall be sufficient to prevent the setting aside of any verdict rendered by a jury chosen hereunder, unless the irregularity in drawing, and summoning or impaneling the same resulted in depriving a party litigant of some substantial right; provided, however, that such irregularity must be specifically presented to the court at or before the time the jury is sworn to try the cause.
[Emphasis added.]
The right to challenge the administrative jury selection is afforded to litigants in civil actions as well as criminal actions. 8 In the Kansas City Southern case, the general jury panel was challenged on the basis that the list of qualified jurors taken from the tax lists in the county assessor’s office was not prepared pursuant to 38 O.S.1951, §§ 18, et seq. This Court said:
To entitle a defendant to successfully challenge a panel of jurors, the burden is upon the defendant to show that the illegality or wrong which is the basis of such challenge is such as to have caused the defendant to suffer material prejudice. Taylor v. State, 95 Okl.Cr. 98 , 240 P.2d 803 ; Houston v. State, 63 Okl.Cr. 49 , 72 P.2d 526 .
The panel of jurors drawn from the jury wheel was available to defendant for examination. No showing was made that members of the panel were not qualified to serve as jurors or were incompetent to sit as jurors in the trial of the case. In the final analysis of defendant’s contention the main fault urged is that the jury, upon consideration of the evidence, rendered a verdict for plaintiff in a very substantial sum. Defendant presents no substantial facts or argument that the procedure followed in the preparation of the jury list caused or contributed to an erroneous verdict or deprived the defendant of some substantial right.
Our conclusion on this aspect of this appeal should not be construed as approving irregularities in the preparation of the list of jurors by the county officials charged with that statutory duty. The procedure is set forth in clear language by the statutes. Any departure from this procedure is condemned and is being tolerated in this instance because of lack of proof of prejudice.
Kansas City Southern, 367 P.2d at 727.
In the recent case of York v. Fields, 846 P.2d 360 (Okla.1992), this Court implicitly recognized the right of litigants to challenge the administrative steps of jury selection. York challenged the jury panel as not representative of the entire county and that a majority of the panel members were associated is some manner with defendants or their attorneys. The trial court denied the motion and, ultimately, York dismissed the suit. ' The trial court awarded attorney fees in favor of the defendants for services to defend the jury panel challenge. This Court reversed the trial court, finding that the dismissal was not in bad faith, vexatious or oppressive, or stated differently, that the challenge to the jury panel was in good faith.
Inherent in the right to challenge the administrative jury selection process is the right to discover the process. That is, the process must be open to the litigants. Otherwise, a litigant’s right to challenge the jury selection process is meaningless if the process is closed to the public. A careful reading of the applicable statutes reveals a legislative intent that the administrative steps in the jury selection process will be open to public scrutiny, except for the names of the persons to be summoned for service. These statutes further reveal a legislative intent that immediately upon the taking of the juror’s oath, the organization and supervision of the general jury panel becomes a judicial function.
*83 As the majority opinion observes, § 21 of Title 38 requires the drawing of the names of prospective jurors to be summoned shall be done in open court, but that the names shall not be divulged and shall be sealed. Section 20 provides that the general jury panel shall report to the chief judge and that the chief judge shall organize said juries and have immediate supervision and control of them. Section 20.1 specifies the oath to be administered by the chief judge to each member of the general jury panel when reporting for duty and requires that the oath shall be maintained in the office of the court clerk as a judicial record. Section 26 provides that the sealed envelope containing the names of the those summoned for jury duty shall be opened after the jury has been impaneled.
In this case, the members of the general jury panel were instructed to report to a central jury assembly room. The jury clerk of the office of the court clerk was present in the jury assembly room. Presumably, the chief judge administered the statutory juror’s oath to the members and caused those oaths to be filed with the court clerk. At that point, the general jury panel was impaneled and the administrative aspects of jury selection were concluded. At that point, the jury process should have been opened to the public.
Our statutes clearly place the general jury panel under judicial control and supervision. 38 O.S.1991, § 20. Although pre-voir dire, orientation of the general jury panel is conducted by the chief judge and thus it is judicial action. Where judicial action is taken, the proceeding is judicial. Funnell v. Cannon, 577 P.2d at 1289 . The guarantees of trial by jury in our state and federal constitutions reflect a fundamental fear of unchecked judicial power. Trial by jury protects litigants from the arbitrary actions of a biased judge. Duncan v. State of Louisiana, 391 U.S. 145, 156 , 88 S.Ct. 1444, 1451 , 20 L.Ed.2d 491 (1968). Judicial power is unchecked where the chief judge denies public access to the judicial orientation of the general jury panel and selection of the panel members for assignment to the various court rooms as prospective jurors in a civil or criminal case.
In this case, the chief judge’s orientation comments to the general jury panel and assignment of panel members to the various courtrooms as prospective jurors in the civil and criminal cases docketed for jury trial were not accessible to public scrutiny. Presumably the chief judge followed the Rules for the Seventh Judicial District in assigning jurors to the various courtrooms. 9 However, it is the closed proceedings for excusing summoned jurors from service and for orientation and assignment of prospective jurors to individual cases by the chief judge at which plaintiff herein contends he had a right to be present and that the chief judge’s denial of that right was a denial of due process. I agree.
That the chief judge is exercising judicial power when deciding whether a summoned juror should be excused from service or when supervising and controlling members of an impaneled general jury panel is consistent with Rule 14 of the Rules on Administration of Courts. 20 O.S.1991, ch. 1, app. 2. Rule 14 requires the chief judge in a county or the presiding judge in a judicial administrative district to hold at least one jury term each year, an annual disposition docket and at least one motion docket each month. The administrative nature of the chief judge’s role in each of these duties extends only to the acts required to initiate those dockets or jury terms — setting the dates and notifying the court clerk of the dates for a jury term or disposition docket or motion docket. Other acts relating to those dockets are judicial and minimal, procedural due process must be afforded. Heiman v. Atlantic Richfield Company, 807 P.2d 257 (Okla.1991).
The majority’s reliance upon United States v. Williams, 927 F.2d 95 (2nd Cir. *84 1991) for its administrative/judicial distinction is misplaced. United States v. Williams stands for the proposition that irregularity in the administrative jury selection process pursuant to federal statute will be analyzed by the harmless error standard of Gomez v. United States, 490 U.S. 858 , 109 S.Ct. 2237 , 104 L.Ed.2d 923 (1989). Both Williams and Gomez were concerned with authority — authority of the clerk and authority of the magistrate; neither was concerned with the due process or openness issue. In Williams the prospective jurors were assembled in a central jury room; the judge instructed the clerk to inform the group that the trial was expected to last for six weeks and to make inquiry into possible hardship; the clerk excused two jurors for hardship; and the defendant contended that this was reversible error. The Second Circuit found that district court plan, duly filed in accordance with the Jury Selection and Service Act of 1968, 10 permitted the clerk to excuse jurors without exposing any jurors to the substance of the case as part of the “ ‘administrative impanelment process’ and any error in this procedure was harmless.” 11 In Gomez the defendants challenged the statutory power, or lack thereof, of the U.S. Magistrate to conduct jury voir dire examination in a felony case. The United States Supreme Court found that the magistrate was without authority and rejected the harmless error analysis.
The federal law administrative/judicial distinction simply is inapposite to the instant case. Further, 20 O.S.1991, § 106.4 is not broad enough to accommodate the constitutional injury that plaintiff/appellant asserts — denial of access to the jury assembly room during the chief judge’s orientation of the general jury panel and selection of panel members as prospective jurors in plaintiff/appellant’s negligence action. 12 I would not deny litigants, nor the public in general, access to the judicial supervision and control of prospective jurors.
. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 570 , 100 S.Ct. 2814, 2824 , 65 L.Ed.2d 973 (1980). In Press-Enterprize Co. v. Superior Court of Cal., 464 U.S. 501, 508 , 104 S.Ct. 819, 823 , 78 L.Ed.2d 629 (1984), finding constitutional infirmity in the closing of the jury selection process in a criminal prosecution, said:
The open trial thus plays as important a role in the administration of justice today as it did for centuries before our separation from England. The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known."
. Title 20 O.S.1981, § 106.4, amended by 1989 Okla.Sess.Laws ch. 39, § 1, increasing the fee for transcripts to $2.50 per page, and now codified as 20 O.S.1991, § 106.4, provides in part:
(a) The court reporter shall make a full reporting by means of stenographic hand, steno-mask or machine notes, or a combination thereof, of all proceedings, including the statements of counsel and the court and the evidence, in trials and other judicial proceedings to which he is assigned by the appointing judge who is trying the case with the consent of the parties to the action. Nothing herein contained shall be construed to authorize the certification of persons as certified shorthand reporters who rely exclusively upon the steno-mask for reporting judicial proceedings, except as provided by law. A refusal of the court to permit or to require any statement to be taken down by the court reporter, upon the same being shown by affidavit or other direct and competent evidence, to the Supreme Court, or other appellate court, shall constitute a denial of due process....
(b) Upon request of either party in a civil or criminal case the reporter shall transcribe the proceedings in a trial or other judicial proceeding....
[Emphasis added.]
. In Funnell , this Court held that the denial of a record of argument on a motion to strike and a general demurrer constitutes a denial of due process under § 106.4. Rejecting a narrow reading of § 106.4, this Court reasoned:
To limit the right for the taking down by a court reporter to trial, or evidentiary hearings, would render the language "other judicial proceedings" idle and nugatory. [Footnote omitted.] A "judicial proceeding” cannot be limited to a trial or evidentiary hearing. It is correctly defined as "any proceeding wherein judicial action is invoked and taken”; or, "any step taken in a court of justice in the prosecution or defense of an action.” [Footnote omitted.]
. Title 38 O.S.1991, §§ 18 through 29.
. See note 3, supra.
. In Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 580 , 100 S.Ct. at 2829 , the United States Supreme Court, in holding that the right of the public to attend criminal trials is implicit in the guarantees of the First Amendment, noted that "historically both civil and criminal trials have been presumptively open.” Richmond extends the First Amendment protection of public access to all facets of the jury selection process. Under the First Amendment the public has access to the assembly of venire persons while they are being given orientation instructions by judicial offices. In this -case, the chief judge’s refusal to allow plaintiff/appellant’s court reporter into the jury assembly room was contrary to the First Amendment guarantee of public access to the court.
. The majority opinion summarizes the statutes regulating the administrative steps in selecting, summoning and impanelling the general panel of prospective jurors for each jury term. Accordingly, those statutes are not re-reviewed herein.
. Kansas City Southern Railway Company v. Norwood, 367 P.2d 722 (Okla.1961). In addition to our statutes controlling jurors, our criminal procedure statutes, in specific terms, provide for challenges to the drawing, summoning and impaneling of jury panels. 22 O.S.1991, §§ 631, et seq.
. Rule 40 of the Rules for the Seventh Judicial District requires that the names of the members of the general panel be placed in a jury box and, upon request by a judge for a jury, as many names as is requested will be drawn from the box. It is noteworthy that Rule 40 provides for the chief judge to "impanel the jury in the jury assembly room or one of the court rooms.”
. 28 U.S.C. §§ 1861-78 (1988).
. Williams, 927 F.2d at 97 .
. The majority opinion, in note 7, finds no injury in denying plaintiff/appellant access to the jury assembly room because the chief judge offered to allow the taking of the deposition of the jury room clerk and because the plaintiff/appellant failed to show that the lack of access resulted in a tainted jury. The majority opinion fails to recognize the presumption of injury where there is a violation of a constitutional right. Glosser v. United States, 315 U.S. 60, 70-71 , 62 S.Ct. 457, 465 , 86 L.Ed. 680 .