dissenting:
I respectfully dissent.
The majority reverses defendant’s conviction and sentence because the trial court denied a defense challenge for cause of a prospective juror. The juror, whom defendant excused by the use of a peremptory challenge, was a lawyer on inactive status. I disagree that granting the challenge for cause was mandated by the statute.
Section 16-10-103(1), C.R.S.1997, does not automatically exempt or disqualify a lawyer from jury service, but provides a basis for challenging a juror who is a lawyer from jury service without establishing bias or prejudice.
Section 16-10-103(1) was construed in Binkley v. People, 716 P.2d 1111 (Colo.1986), when a defense challenge of a prospective juror for cause was denied. The juror was a law graduate and had passed the Montana bar, but had allowed her license to expire. The Colorado Supreme Court upheld the denial and affirmed Binkley’s conviction.
A different result was reached in People v. Pope, 944 P.2d 689 (Colo.App.1997). There, a prospective juror, who was a lawyer, was challenged for cause. The juror stated that he had applied for inactive status, but had not received confirmation that his application had been granted. The trial court denied the challenge for cause, and the court of appeals reversed on the basis that there had been no showing that the administrative requirements for obtaining inactive status had been satisfied.
To the extent that People v. Pope, supra, may be construed beyond the facts in that case, I view it as in conflict with Binkley v. People, supra, and would decline to follow it.
Here, the prospective juror had been admitted to the Colorado bar in 1974, but had been on inactive status since the mid-1980s. Based upon Binkley v. People, supra, I would consider such an individual not to be a “lawyer” within the meaning of § 16-10-103(1). I would uphold the trial court’s denial of the challenge for cause, and would affirm defendant’s conviction and sentence.
The trial court is required to exclude, apart from a showing of bias or enmity, only those individuals who are licensed and currently practicing law. An attorney who is on inactive status is not eligible to practice law unless, and until, granted permission to return to active status. C.R.C.P. 227(A)(6) and C.R.C.P. 227(A)(7); People v. Newman, 925 P.2d 783, 784 (Colo.1996) (censuring attorney for improperly (1) implying “that he was licensed to practice law in Colorado even though he was on inactive status” and (2) engaging in the practice of law while on inactive status); People v. Cassidy, 884 P.2d 309 (Colo.1994) (selling living trust packages while on inactive status constitutes the unauthorized practice of law).
Binkley v. People, supra, equated a lawyer under the statute with a person who provides legal advice and who is licensed and is practicing as an attorney and counselor at law. The prospective juror here was not such a person. Thus, the trial court properly denied the defense challenge for cause.