WISDOM, Circuit Judge:
The plaintiffs in these consolidated cases (See Appendix A) invite this Court to hold that the Seventh Amendment of the United States Constitution
Although the Louisiana Constitution contains no guarantee of the right to a trial by jury in civil cases, Articles 1731-33 of the Louisiana Code of Civil Procedure require a jury trial on the timely demand of either party to an action.
I. PROPRIETY OF A THREE-JUDGE COURT AND JURISDICTION OF THE COURT
A. At the outset we must meet the defendants' contentions that this case is not one for a three-judge court. See 28 U.S.C. § 2281.
1. Relevant to the three-judge court issue is the fact that a decision favorable to the plaintiffs would disrupt the Louisiana judicial system for the trial and appeal of civil actions.
The First Session of the Legislative Council of the Territory of Orleans adopted the Practice Act of 1805, which evolved into the Code of Practice of 1825.
When Louisiana became a state in 1812, by constitution, statute, and judicial decision Louisiana accepted the common law criminal system, including the right to trial by jury in prosecutions.
These consolidated cases seek to overthrow Louisiana's simple, long-standing, demonstrably effective civil procedures. They therefore clearly come within the policy underlying Section 2281: that is, that a three-judge district court is required when plaintiffs seek in federal courts to restrain enforcement by state officials of state statutory or constitutional provisions.
2. The defendants argue that since the Supreme Court has applied the Bill of Rights selectively to the States and has consistently ruled the Seventh Amendment inapplicable to the States, no substantial federal question exists requiring the case to be heard by a three-judge court. See Bailey v. Patterson, 1962, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512; Ex parte Poresky, 1933, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 1323. It is true that a long and consistent line of Supreme Court cases stands adverse to the plaintiffs' contention.
B. The plaintiffs' complaints predicate "jurisdiction" on 28 U.S.C. §§ 1331 and 1343(3) and 42 U.S.C. §§ 1983, 1981, and 1988. We hold that this Court properly has jurisdiction under 28 U.S.C. § 1343(3)
II. HISTORICAL BACKGROUND AND DECLINE OF THE CIVIL JURY
If the history of the jury in Anglo-American law proves anything, it proves that the civil jury has assumed many forms and has been circumscribed, circumvented, and abandoned in various types of cases in many jurisdictions.
"One persistent error, adopted for many centuries, and even now hard to dispel, is that the Great Charter guaranteed trial by jury.
This is not the place for an extended historical essay on the development of non-jury trials, but a few words on that subject may be appropriate. Without juries the Court of Chancery coexisted with the Courts of King's Bench, Common Pleas, and Exchequer, and by 1787-1791 "determinations in equity were thought to have as much force as determinations at law, and that the possible impact on jury trial rights was not viewed with concern".
When we turn to the Federal Convention, we find that trial by jury in civil cases was touched upon in debate but was intentionally left out of the final document, probably because of the great diversity in state civil practice.
Lord Devlin, then Sir Patrick Devlin, explained:
"Civil jury trial in Scotland has never been `the palladium of the Constitution,'
It is presumptuous and chauvinistic to argue that civil trials in such countries as France and Germany and the Scandinavian countries are unfair. It is paradoxical and anachronistic to assert that the civil jury of 1791 is necessary to assure fair trials in suits at common law in this country when civil juries have been all but done away with in England, the source of the common law.
III. INCORPORATION DOCTRINE
A. In Barron v. Baltimore, 1833, 7 Pet. 242, 8 L.Ed. 672, the Supreme Court established the principle that the first ten amendments to the United States Constitution were limitations on the power of the federal government: the Bill of Rights as such, does not apply to the States.
B. Two years after the Fourteenth Amendment was adopted, in Justices v. Murray, 1870, 9 Wall. 274, 19 L.E. 658, the Court held that the Seventh Amendment prohibiting re-examination of facts was applicable to federal appellate courts when reviewing state court decisions, but recognized that the provision has no effect on the powers of state appellate courts. Four years later in Edwards v. Elliott, 1874, 21 Wall. 532, 88 U.S. 532, 22 L.Ed. 487, the Court, in dicta, stated that the Seventh Amendment right to jury trial "does not apply to trials in the State Courts." The question of the applicability of the Seventh Amendment provisions to the states through the Due Process Clause of the Fourteenth Amendment was squarely raised in Walker v. Sauvinet, 1876, 92 U.S. 90, 23 L.Ed. 678. The petitioner complained of a Louisiana statute requiring a judge to direct a verdict when the jury failed to agree. He contended that the statute violated his rights under the Seventh and Fourteenth Amendments. The Court responded with language which has been the governing law ever since:
92 U.S. at 92-93. For a hundred years the Supreme Court has not deviated from Walker v. Sauvinet. Indeed, the Supreme Court has frequently denied certiorari in cases involving the precise issues raised in the cases before us.
C. The Supreme Court has never decided that the Fourteenth Amendment totally "incorporated" the Bill of Rights. Going back to the Slaughter-House Cases, 1872, 83 U.S. (16 Wall.) 36, 21 L.Ed. 394, the Court held that the Due Process Clause did not protect New Orleans butchers against state laws which interfered with their right to do business. In Hurtado v. California, 1884, 110 U.S. 516, 48 S.Ct. 111, 292, 28 L.Ed. 232, the Court rejected the contention that due process included the right to indictment in a state court, although the court recognized that due process protected certain fundamental rights. In Chicago, Burlington & Quincy Railroad v. Chicago, 1897, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979, the first Mr. Justice Harlan, who had dissented in Hurtado without mentioning Hurtado, Barron v. Baltimore, or the Bill of Rights, held that due process required a state to pay just compensation for the taking of property for public use. This case is cited in Twining v. New Jersey, 1908, 211 U.S. 78, 99, 29 S.Ct. 14, 19, 20, 53 L. Ed. 97, for the proposition that "some of the personal rights safeguarded by the first eight Amendments against national action may also be safeguarded against state action, because a denial of them would be a denial of due process of law". Twining held that the Fifth Amendment privilege against self-incrimination is not a privilege or immunity of national citizenship guaranteed by the Fourteenth Amendment against abridgment by the States. The Court rejected the contention that the Fourteenth Amendment incorporated any of the specifics of the Bill of Rights. Certain rights are protected against state action "not because those rights are enumerated in the first eight Amendments, but because they are of such a nature as that they are included in the conception of due process of law". 211 U.S. at 99, 29 S.Ct. at 20. Mr. Justice Black later criticized this position as a "natural law gloss" on the Constitution.
Palko v. Connecticut, 1937, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288, has been credited with modifying the Twining doctrine by applying a "selective" process of "absorption": The Fourteenth Amendment absorbed only those fundamental rights guaranteed in the Bill of Rights, such as freedom of thought and speech, without which neither liberty nor justice would exist if they were
Mr. Justice Black, notably in his dissent in Adamson v. California, 1947, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903, concluded from his studies of the legislative history of the Fourteenth Amendment that the amendment was designed to make the specifics of the Bill of Rights totally applicable to the states. Other justices, especially Mr. Justice Douglas, but never a majority of the Court, have agreed with his position.
Over the years, however, regardless of Barron v. Baltimore, Twining v. New Jersey, Palko v. Connecticut, and Adamson v. California, the Supreme Court has held most of the guarantees of the Bill of Rights to be requirements of due process.
As Mr. Justice White made clear in Duncan v. Louisiana, procedural "processes
In Williams v. Florida, 1970, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446, Mr. Justice White, again writing for the Court, held that "the 12-man panel is not a necessary ingredient of `trial by jury' and that [the State of Florida's] refusal to impanel more than six men provided for by Florida law did not violate petitioner's Sixth Amendment rights as applied to the States through the Fourteenth". Mr. Justice Harlan put his finger on a vital point. In Duncan he had observed, "Neither history, nor sense, supports using the Fourteenth Amendment to put the States in a constitutional straitjacket with respect to their own development in the administration of criminal or civil law". 391 U.S. at 175, 88 S.Ct. at 1463. Dissenting in Williams, Justice Harlan declared that "we now witness the first major attempt to wriggle free of that `straitjacket'". 399 U.S. at 130, 90 S.Ct. at 1922.
Williams, Duncan, and many of the leading decisions involving selective incorporation or selective applicability of the specifics of the first eight amendments related to substantive rights or to procedures in criminal cases. "The purpose of the jury trial, as [the Court] noted in Duncan, is to prevent oppression by the Government". Williams, 399 U.S. at 100, 90 S.Ct. at 1905. The civil
We conclude from our review of the law that the Supreme Court has examined each claim to a Bill of Rights guarantee on its own merits. The existence of the Seventh Amendment is evidence that in 1791 the jury in suits at common law, but not in other suits, was essential to civil process in the federal courts. But the adoption of the Fourteenth Amendment did not mechanistically make the Seventh Amendment applicable to the States. As Justice Moody put it in Twining:
Justice Matthews continued,
These expressions of Justices Moody and Matthews are consistent with Mr. Justice White's approach in Williams. They are attuned to John Marshall's unforgettable words: "We must never forget that it is a constitution we are expounding." McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316, 407, 4 L.Ed. 579.
IV. LINE OF DEVELOPMENT
A. The limitation of the Seventh Amendment to suits at common law, thereby eliminating jury trials in suits in equity and admiralty, is in itself evidence that historically the Framers considered a fair trial could be had without a jury in broad groups of civil cases.
Equity cases often involve issues similar to those tried by jury in common law actions, for example, cases in which the relief sought is specific performance of a contract, not damages. Thus, the presence of a jury in common law suits is based on an accident of history, as Mr. Justice White said with respect to the 12-man jury, rather than a rational distinction based on the merits of juries and the difference between the common law and equity. Consider the serious consequences of an equitable decree. Failure to comply with an injunction subjects the contemnor to a jail sentence — again without a jury. This deprivation of liberty without trial by jury is a result more important to the individual and to society than a judgment for damages. The line between suits in equity and suits at common law has often been difficult to draw, and it has often been drawn to the derogation of the right to jury trial. See James, Right to a Jury Trial in Civil Actions, 72 Yale L.J. 655 (1963); Karlen, "Can a State Abolish the Civil Jury?" 1965 Wisc.L.Rev. 103 (1965). When, therefore, we deal with the essential ingredients of due process today — not the 1791 ingredients of a trial at common law — Mr. Justice Cardozo's words in Palko are especially pertinent: "Few would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without [the right to trial by jury]".
B. The encroachments on the civil jury occasioned by classification of cases as outside of the "Suits at common law" category has been exceeded only by encroachments brought about by total abolition of the civil jury. This occurs in specialized courts and administrative agencies as well as in certain types of cases defined by statute despite the common law nature of some of the suits before the courts or agencies covered by the legislation. The National Labor Relations Board,
C. In federal courts, where the right to jury trial in civil cases is guaranteed by the Seventh Amendment,
Numerous district courts by rule or by order have fixed the number of jurors in some civil cases at less than the traditional twelve. (See Appendix B.) In addition, the parties may stipulate to a reduced jury in federal court. See F.R. Civ.Pro. 48. Rule 38 of the Federal Rules of Civil Procedure provides that failure to demand a jury trial constitutes waiver and would seem to legitimize jury waiver
D. An examination of the jury in criminal cases is relevant to our inquiry. A distinction can, of course, be drawn between the right to a jury trial in criminal cases and the right in civil cases. In criminal cases, the liberty of the accused is at stake; courts zealously protect the freedom of the accused by incarcerating him only if a jury finds his conduct reprehensible. No similar right can necessarily be inferred in a civil case between party and party where only property is at stake. See Henderson, The Background of the Seventh Amendment, 80 Harv.L.Rev. 289 (1966); Karlen, Can a State Abolish the Civil Jury?, 1965 Wisc.L.Rev. 103 (1965).
As previously noted, the Supreme Court has approved juries of less than twelve in state criminal cases. Williams v. Florida, 1970, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446. Two states allow convictions for serious crimes by less than a unanimous jury,
In theory, if not in practice, the wayward minor in Juvenile Court is not in a criminal court. A strange split personality exists in decisions on the juvenile courts. In re Gault, 1967, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, is replete with language about the necessity of guaranteeing due process rights to juveniles.
These examples from the criminal area demonstrate that a right considered "fundamental" may be modified or abolished altogether. Even if we were to decide that the right to a jury trial in civil cases is a requirement of due process,
E. There is language in Supreme Court opinions about the fundamental nature of the right to jury trial and the presumption in favor of the right in civil cases. See Jacob v. New York, 1942, 315 U.S. 752, 62 S.Ct. 854, 86 L.Ed. 1166. The Court has broadened the class of cases and issues where jury trial exists as of right
But another line of Supreme Court cases has re-examined facts found by a jury in state courts despite the "common law tradition" favoring jury trial and despite the fact that the cases involved "Suits at common law". In New York Times v. Sullivan, 1964, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, petitioner sued for libel in state court and received a favorable jury verdict. After the state appellate courts had affirmed, the Supreme Court granted certiorari to determine free speech and free press limitations on libel actions brought by public officials. The Court fashioned a federal
F. Much has been written, favorable and unfavorable, about the jury.
In summary, we adhere to a pragmatic approach that, absent "total incorporation", a civil jury trial is not so implicit in the concept of ordered liberty in a cooperative federalism as to be required of the states by due process. We further hold that, assuming the right to a civil jury trial is required by due process, the Louisiana scheme does not destroy that right, but modifies it in accordance with fair procedures many of which are analogous to procedures established in the Federal Rules of Civil Procedure.
IV. RE-EXAMINATION OF FACTS
A. This leads us to consider whether jury trial without re-examination of facts — the principle embodied in the second clause of the Seventh Amendment—is so fundamental to the American scheme of justice as to constitute a necessary ingredient of due process. We hold, in view of the ever-changing nature of the judge-jury division of functions, that the principle embodied in the second clause of the Seventh Amendment is not required of the States by due process.
As noted earlier, at the time of the passage of the Seventh Amendment, state practices varied as to the right to jury trial and the court-jury functions.
The Federal Rules of Civil Procedure contain many such examples. For instance, Rule 59 allows the trial judge on motion of the parties, Fed.R.Civ.Pro. 59(a), or on his own initiative, Fed.R. Civ.Pro. 59(b), to grant a new trial. This
Under Rule 50(a), the trial judge may grant a motion for directed verdict "without any assent of the jury". Before granting such a motion, the judge must examine the facts or absence of facts before the jury. Justices Black and Douglas have called this provision part of "the process by which the courts have been wresting from juries the power to render verdicts".
The granting of a motion for summary judgment under Rule 56 on the basis of affidavits, see Rule 56(e), makes the judge the trier of fact in a very real sense. Similarly, an order of dismissal for failure to prosecute under Rule 41(b) seriously undermines the right to jury trial. The power of an appellate court to grant a motion for a new trial is codified in Rule 50(c). Before granting such a motion, the appellate court must re-examine facts. Justices Black and Douglas have commented, "To the extent that jury verdicts are to be set aside and new trials granted, we believe that those who hear the evidence, the trial judges, are the ones who should primarily exercise such discretion".
Finally, special verdicts, see Rule 49 (a), and general verdicts accompanied by answers to interrogatories, see Rule 49 (b), involve inroads by the judge into the jury function. Justices Black and Douglas have said:
There are also several devices, not specifically mentioned in the Rules, by which the court alters the jury's function.
These federal rules illustrate the plastic nature of court control of the jury in civil cases, notwithstanding the apparently unyielding language of the Seventh Amendment.
Hardware Dealers Mutual Fire Ins. Co. v. Glidden, 1931, 284 U.S. 151, 52 S.Ct. 69, 76 L.Ed. 214, 219.
B. The soundness of this federal principle would seem to be peculiarly applicable to procedure in Louisiana. The law of this state is unique. Nevertheless its lawmakers, legislative and judicial, have managed to work out compromise procedures compatible with Louisiana's civilian heritage and with the Anglo-American concept of due process. There is appellate review on the facts as well as on the law, but it is subject to the requirement that factual findings of a trial court or the verdict of a jury should be disturbed only when they are manifestly erroneous. Morris v. Hatch, 2 Mart. (N. S.) 491 (La.1824); Edwards v. Burroughs, 12 Rob. 171 (La.1845); Moret v. N. O. Rys. Co., 112 La. 863, 36 So. 759 (1904); Norman v. State, 69 So.2d 120 (La.App.1953), rev'd 227 La. 904, 80 So.2d 858 (1955); Knighten v. Am. Auto Ins. Co., 121 So.2d 344 (La.App.1960).
Justice (then Judge) Albert Tate has said: "I believe that appellate courts must adhere to the settled jurisprudential rule to which at least lip-service has been paid by a century and a half of Louisiana precedents: that a trial court's factual determinations should be accepted on appellate review, in the absence of manifest error. And we must do so not only because as a practical matter the trial judge is in a better position than is his appellate brethren to evaluate the credibility of witnesses. We must do so also because the proper and efficient operation of our judicial system allots factual determinations primarily to the trial judge and only secondarily to the appellate court, and because the public interest in the swift and authoritative settlement
If the kind of appellate review of the facts that exists in Louisiana is unconstitutional, then the Supreme Court should take a second look at the constitutionality of the Federal Rules.
As long as the Supreme Court declines to accept the total incorporation doctrine, there is no rational basis for asserting that due process requires a jury in common law cases in state courts, but that a jury may be dispensed with in equity, admiralty, and numerous types of cases based on statutory causes of action. Historically, we have seen the demise of the civil jury in England and the modification of the civil jury in many states so that today it resembles only remotely the jury in a common law case. The grant of a new trial, directed verdict, summary judgment, judgment notwithstanding the verdict and other federal procedures, in sum, are analogous to the Louisiana procedure for review of the facts. Basic substantive rights in the first eight amendments inseparably associated with personal liberties or with a fair trial are fundamental components of due process. But the civil jury is procedural; not "inseparably connect[ed with] the existence of liberty."
Judge E. Gordon West dissents and will file reasons therefor at a later date.
Although the consolidated cases present varied factual situations, all ask for injunctive relief to restrain the enforcement by state officials of state statutory or constitutional provisions.
In Melancon v. McKeithen (the Nineteenth Judicial District Court, Parish of East Baton Rouge) the plaintiff filed suit against a property owner, a real estate firm, and their insurers. He alleged that while a business visitor at an "open house" he was beaten by an unidentified stranger. A jury returned a verdict in favor of the plaintiff in the amount of $15,000 upon which judgment was entered. On motion of the defendants, the trial judge granted a new trial under Article 1972 of the Louisiana Code of Civil Procedure,
In Hill v. McKeithen (Nineteenth Judicial District Court, Parish of East Baton Rouge), a wife sued her husband's insurer to recover for bodily injuries sustained as a result of her husband's alleged reckless operation of an automobile. A jury trial resulted in a verdict and judgment for $4,000. The First Circuit Court of Appeal for the State of Louisiana, reversed the judgment.
Jones v. Aetna (First Judicial District Court, Parish of Caddo) the plaintiff, as ward for a minor child, sued an insurance company under Louisiana's direct action statute for injuries incurred in an auto accident. A jury trial resulted in a verdict and judgment in favor of the plaintiff in the amount of $6,500 on the issue of damages; liability was admitted. On appeal, the Louisiana Circuit Court of Appeal for the Second Circuit reduced the award to $3,500 and rendered its own judgment for the lesser amount without granting a new trial. An application for writ of certiorari to the Louisiana Supreme Court under Art.
In Long v. McKeithen (Nineteenth Judicial District Court) the plaintiff obtained a jury verdict of $6,400. The First Circuit Court of Appeal for Louisiana, in the words of plaintiff's complaint, "set aside judgment because the Court disagreed with the facts as found by the jury". The complaint asks for a three-judge panel to order the state appellate court to reinstate the jury judgment on grounds similar to those alleged in the previous cases.
In Mayes v. Ellis (Nineteenth Judicial District Court) two sets of parents brought similar suits for the wrongful deaths of their daughters caused by a single auto accident. The suits were consolidated for trial, and a jury returned a verdict of $100,000 in favor of the first set of parents and $50,000 in favor of the other parents. The First Circuit Court of Appeal reversed and entered judgment for the defendants after re-examining the facts. Mayes v. McKeithen, 213 So.2d 340 (1968). The Louisiana Supreme Court denied an application for writs of certiorari. Mayes v. McKeithen, 252 La. 965, 215 So.2d 130 (1968). The plaintiffs ask a three-judge court to order reinstatement of the jury verdict for reasons similar to those asserted in the previous cases.
In Moticheck v. McKeithen (Nineteenth Judicial District) the First Circuit Court of Appeal set aside a jury verdict in favor of the plaintiff for $2,000 because according to the complaint, "the court disagreed with the facts as found by the jury".
In Davis v. McKeithen (Civil District Court for the Parish of Orleans) the plaintiff, on behalf of minor children, sued a landlord and his insurer for damages sustained by her children resulting from ingesting paint from the premises of the defendant. The jury awarded damages totaling $117,500.00. The Fourth Circuit Court of Appeal affirmed. The Supreme Court of Louisiana, however, reversed on a question of fact.
Finally, in Lewis v. Ford Motor Company (Eleventh Judicial District Court for the Parish of Sabine) a widow sued on behalf of herself and two minor children for the death of her husband in an automobile accident. The jury awarded damages totalling $125,000.00. On appeal, the Third Circuit Court of Appeal reviewed the facts of the case and reversed the judgment rendered on the jury's verdict as to four of the defendants. The plaintiff's application for Writ of Review and Certiorari to the Louisiana Supreme Court was refused.
The following district courts, by rule or order, have fixed the number of jurors
1. Minnesota (November 12, 1970)
2. Illinois, Eastern (December 10, 1970)
3. Illinois, Southern (January 21, 1971)
4. Florida, Southern (February 8, 1971)
5. Kentucky, Western (February 17, 1971)
6. New Mexico (February 19, 1971)
7. Wyoming (February 25, 1971)
8. Indiana, Southern (February 26, 1971)
9. California, Central (March 8, 1971)
10. Indiana, Northern (March 10, 1971)
11. Kansas (March 11, 1971)
12. California, Southern (March 19, 1971)
13. Hawaii (March 31, 1971)
14. Louisiana, Western (April 9, 1971)
15. Pennsylvania, Eastern (April 13, 1971)
16. District of Columbia (April 16, 1971)
17. Louisiana, Eastern (April 20, 1971)
18. Colorado (April 21, 1971)
19. Texas, Western (May 1, 1971)
20. Illinois, Northern (May 18, 1971)
21. New York, Eastern (May 19, 1971)
22. Florida, Middle (May 27, 1971)
23. Pennsylvania, Western (May 27, 1971)
25. Oregon (June 7, 1971)
26. Maryland (June 10, 1971)
27. Alabama, Middle (July 12, 1971)
28. Wisconsin, Eastern (July 26, 1971)
29. New Hampshire (July 27, 1971)
"(a) Number of Jurors and Initial Selection
30. Montana (Filed July 14, 1971)
31. Rhode Island (Filed September 20, 1971)
See Zeisel, . . . And Then There were None: The Diminution of the Federal Jury, 38 U.Chi.L.Rev. 710 (1971)
E. GORDON WEST, District Judge (dissenting):
These consolidated cases result from a unique provision of Louisiana law which gives appellate courts the right, in civil cases, of unlimited review of both question of fact and law.
Art. VII, § 10 of the Constitution of Louisiana provides, inter alia:
And Art. VII, § 29 of the Constitution of Louisiana provides that:
The plaintiffs in these cases, and in several other cases in which proceedings have been stayed pending the outcome of these cases, contend that this unrestricted right of the Appellate Courts in Louisiana to completely disregard and
The Fourteenth Amendment, Section 1, says:
Despite the historical background contained in the majority opinion, and the obvious expressions of personal preferences for non-jury rather than jury trials in civil cases, the fact remains that the only real question involved here is whether or not, despite the personal preferences of some judges, the mandates of the Seventh Amendment should, in fact, be operative on the States through the due process clause of the Fourteenth Amendment. The issue here is further narrowed because of the fact that the majority of this Court agree, as indeed they must, that if the right to trial by jury in civil cases is a so-called "fundamental right," then, whatever be the mandates of the Seventh Amendment, they are indeed operative on the States through the Fourteenth Amendment. It is difficult to determine exactly what definition the majority would place upon the word "fundamental." They refer to it as meaning "basic in our system of jurisprudence"; "implicit in the concept of [Anglo-American] ordered liberty"; and "fundamental to the American scheme of justice." The majority state that over the years the Supreme Court has held "most of the guarantees of the Bill of Rights" [the first eight Amendments] to be requirements of due process, and thus operative on the States through the Fourteenth Amendment. They observe that in doing so, in each case, the Supreme Court has characterized the particular guarantee in question as "fundamental" in accordance with one or more of those definitions. They then conclude that since the Supreme Court has never adopted the "total incorporation" principle [automatically incorporating all eight Amendments within the purview of the Fourteenth Amendment] and since the Supreme Court has not specifically included the Seventh Amendment with those that it has thus far held to be incorporated in the Fourteenth Amendment, a civil jury trial is "not so implicit in the concept of ordered liberty in a cooperative federalism as to be required of the States by due process." The majority further concludes, as if recognizing that their characterization of Seventh Amendment rights as "non-fundamental" rests on shaky ground, that "assuming the right to a civil jury trial is required by due process, the Louisiana scheme does not destroy that right, but modifies it in accordance with fair procedures, many of which are analogous to procedures established in the Federal Rules of Civil Procedure." There are fallacies in these conclusions. First, I believe that the rights secured by the Seventh Amendment are indeed fundamental when viewed in light of any of the definitions of "fundamental" used or alluded to by the majority. The fact that the Supreme Court has not, as yet, included the Seventh Amendment, either by total incorporation or otherwise, among those which it has held to be operative on the States through the Fourteenth Amendment, is no reason, in and of itself, for this Court to conclude that the Seventh Amendment does not involve a fundamental right. The ultimate question involved here has never been passed upon by the Supreme Court, i. e., when a State does, in fact, by its laws, accord to its citizens the right to trial by jury in civil cases, are the State Courts then bound by the mandate of the Seventh Amendment prohibiting an appellate court from reexamining the facts found by the jury otherwise than according to
It is only this same right, together with the right secured by the Seventh Amendment, that "no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law" that the plaintiffs here seek to have "preserved inviolate" by the courts of the State of Louisiana.
The answers to the questions presented in these cases do not depend upon nor should they be influenced by the personal preferences of those called upon to supply those answers. By the same token, the fact that there might have been a decline in the use of juries in civil trials in England is really of no moment. What England does is her business alone. As the majority so aptly states, in quoting the "unforgettable words" of Mr. Justice John Marshall, "We must never forget that it is a constitution we are expounding." The fact, if it be one, stated in the majority opinion, that England's "Great Charter" did not guarantee trial by jury is also of no moment. Our Constitution does. It is our Constitution we are expounding and not that of the Magna Carta of England.
It is my belief that the right to trial by jury in civil cases should be declared to be just as fundamental a right in the State Courts as the United States Constitution has declared it to be in the Federal Courts, and that civil jury trials, in the State Courts, should be subject to the mandates and proscriptions of the Seventh Amendment. It is a matter of historical fact that the Constitution of the United States was originally ratified and adopted only with the understanding that certain amendments would be made which would protect what was believed by the States to be certain fundamental and inalienable rights. The result of this understanding was the first ten Amendments usually referred to as the Bill of Rights. Found prominently included among these Amendments is Amendment Number Seven, which guarantees the right to jury trial in civil cases, and specifically precludes appellate courts from examining, other than according to the rules of common law, facts found by the jury. The majority make the assertion that the right to trial by jury in civil cases was "intentionally left out of the final document" (the United States Constitution). But they fail to add that the promise of its inclusion by amendment was a prerequisite to adoption of the Constitution itself. The constitutional importance of the principles contained in the Seventh Amendment was recognized by the United States Supreme Court in Chicago, B. & Q. R. Co. v. City of Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897), when it said:
To conclude, by whatever reasoning adopted, that the right to trial by jury in civil cases, with the findings of fact of the jury being considered final except as otherwise provided by common law concepts, is not and has not always been considered a fundamental right by the
This was listed in the "Declarations and Resolves" as one of the rights of the inhabitants of the English Colonies in North America "by the immutable laws of nature, the principles of the English Constitution, and the several charters or compacts * * *."
The Virginia Bill of Rights, adopted by the Virginia Convention on June 12, 1776, provided:
The Declaration of Independence, written by Thomas Jefferson between June 10 and July 4, 1776, in reciting grievances against King George, includes:
The Massachusetts Bill of Rights, largely the work of John Adams, added to the Massachusetts Constitution in 1780, provides:
The Declaration of the Causes and Necessity of Taking Up Arms, prepared by John Dickinson and Thomas Jefferson in July, 1775, listed as one of the causes:
On July 14, 1787, the Northwest Ordinance was adopted. This was an ordinance for the government of the territory of the United States northwest of the River Ohio. Article 2 of that ordinance provided, in part, that:
Despite the majority's opinion that "A distinction can, of course, be drawn between the right to a jury trial in criminal cases and the right in civil cases," we see the right to trial by jury in criminal cases and civil cases being considered as a unitary right, and we see the right to trial by jury being apparently considered as a right equal to that of the great writ of habeas corpus. It can hardly be disputed that the right to trial by jury in both criminal and civil cases was considered to be a very fundamental right at the time of and following the formation of the Union. In view of these expressions of the fundamental nature of trial by jury, it is indeed difficult for me to understand the conclusion reached by the majority of this Court that "Thus, the presence of a jury in common law suits is based on an accident of history."
In 1830, Mr. Justice Story, speaking for the United States Supreme Court in the case of Parsons v. Bedford et al., 3 Pet. 433, 7 L.Ed. 732, recognized in clear terms the fundamental nature of the
And then, to dispel the idea, which has been alluded to in the majority opinion, that "common law" as used in the Seventh Amendment means "the basic law of England," Mr. Justice Story said:
Thus, the argument of the majority here that Louisiana could not be bound by the Seventh Amendment because her law is basically the civil law of France rather than the common law of England is specious.
The majority concludes that because the trial courts have such rights, in certain circumstances, as to grant new trials, or to grant summary judgments, or judgments notwithstanding the verdict, that this somehow eliminates or dilutes the mandate of the Seventh Amendment that the findings of fact of a jury shall not be reviewed by appellate courts except according to the common law. This argument was also answered in Parsons.
Consequently, the fact that there are means, at common law, for reviewing findings of fact, in no way diminishes the fundamental nature of the right to trial by jury in civil cases. The fact that there does exist such means of reviewing facts under certain circumstances simply gives meaning to the language of the Seventh Amendment when it says that no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law. These "rules of common law" do not include a rule, such such as Louisiana has, which permits an appellate court to substitute its own finding of fact for those of the jury, even where no manifest error is found to exist in the jury findings, and to reverse the verdict of the jury even though no error of law is found.
To conclude, as the majority of this Court does, that appellate review of facts under Louisiana law is based on the same "manifest error" doctrine followed by the Federal Courts is simply to mis-state the facts. Had the reversals by the Louisiana Appellate Courts in the many cases here being considered by this Court been based upon the "manifest error" doctrine, there is little doubt that these cases would never have been brought before us. It is not enough to quote, as the majority does, Judge Albert Tate (now a Justice of the Louisiana Supreme Court) to the effect that "[Louisiana] appellate courts must adhere to the settled jurisprudential rule * * * that a trial court's factual determinations should be accepted on appellate review in the absence of manifest error." This may be, and probably is his opinion as to what the Louisiana appellate courts should be required to do. But the cold, hard fact is that this is not what the Louisiana appellate courts do, nor is it what they are required by Louisiana law to do. In the case of Melancon v. McKeithen, one of the cases here under consideration, the Court reversed a jury verdict for the plaintiff with the terse explanation that the jury verdict was "contrary to the law and the evidence." In Hill v. McKeithen, another one of the cases before us, the appellate court reversed the jury's finding for the plaintiff on the ground that "We find the plaintiff failed to sustain the burden of proving that her injuries were caused by the negligent operation of the vehicle in which she was riding." But the jury had found otherwise, and there is no suggestion that the Court applied the manifest error test. The fact is that the Appellate Court simply disagreed with the jury findings and, as they are permitted to do under Louisiana law, they simply substituted their interpretation of the facts for that of the jury. And so it goes in each of the several cases before
As early as 1816, in the case of Abat v. Doliolle, 4 Mart. (O.S.) 316 (La.1816), the Supreme Court of Louisiana announced in no uncertain terms that appellate courts in Louisiana could review the evidence taken at the trial and freely reverse any jury verdict as they saw fit. This power of the Louisiana Appellate Courts was reiterated by the Louisiana Supreme Court in Wiggins v. Guier, 13 La.Ann. 356, 357 (1858), in the following language:
Regardless of the fact that some Appellate Judges in Louisiana may adhere to the common law "manifestly erroneous rule," the plain truth is that the Louisiana Constitution grants power to Appellate Courts to freely review findings of fact of the jury and to reverse those findings to fit their own conception of what they believe the facts to be. And a review of the manner in which the jury's findings were reversed in the several cases involved here leaves no doubt that many of the Appellate Judges of Louisiana feel exactly as the late Judge Caldwell Herget, of the Louisiana First Circuit Court of Appeals, felt when he said:
I believe that nothing more need be said to show the incorrectness of the majority's conclusion that "assuming the right to a civil jury trial is required by due process, the Louisiana scheme does not destroy that right, but modifies it in accordance with fair procedures, many of which are analogous to procedures established in the Federal Rules of Civil Procedure." Neither the United States Constitution nor the Federal Rules of Civil Procedure would have permitted a Federal Appellate Court to reverse the jury findings in the cases here involved for the reasons given by the Louisiana Appellate Courts in these cases.
The majority say that "It is presumptuous and chauvinistic to argue that Civil trials in such countries as France and Germany and the Scandinavian countries are unfair." But no one is here arguing that at all. These plaintiffs in these cases are not even arguing that civil trials in Russia or Cuba are unfair. They are not arguing that simply because it is immaterial. We must not forget that "It is a constitution we are expounding." The plaintiffs here simply argue that our Constitution, not the laws of France, Germany, Russia, or Cuba, prohibits the appellate courts from examining the facts found by a jury except according to the rules of common law.
The precise question presented here is not even whether or not a State must accord a person a right to trial by jury in a civil case. It is, instead, whether or not, once that right has been accorded by State law, the proscriptions of the Seventh Amendment should apply. I believe they should. The majority concluded that they should not because, in their opinion, the right to trial by jury in a civil case is not a "fundamental right." It is difficult for me to understand the majority's classification of the right to trial by jury in civil cases as "non-fundamental" when the author of the majority opinion was so adamant in his dissent in Karr et al. v. Schmidt et al. (CA 5 1972) 460 F.2d 609 that the right of a school boy to wear his hair the length he wanted it was such a "fundamental right" as to be protected by both the due process clause and the equal protection clause of the United States Constitution,
I suggest that the refusal of the majority in this case to "attach the fundamental label" to the right to a meaningful trial by jury in civil cases is done, though perhaps quite innocently, to disguise what they are doing and to impute to their decision a reason far more impressive than their personal preferences, which I suspect is all that in fact really lies behind the majority decision.
If the right to trial by jury in civil cases, with its Seventh Amendment protection, is not a fundamental right, then I suggest that the Congress of the United States, the legal profession, the courts, and the taxpayers, are being scandalously deluded. In 1968 the Congress passed the Jury Selection and Service Act of 1968. P.L. 90-274, 82 Stat. 53, 28 U.S.C.A. § 1861 et seq. It became effective on December 22, 1968. Prior to the passage of that Act, there was much criticism of the manner in which juries were selected. It was observed that the obvious infirmity in the old system of selecting jurors was that "It violated the basic principle that no man shall be proceeded against or prosecuted `except by the lawful judgment of his peers,' a phrase deriving from Magna Carta (Chap. 39 as translated in A. Howard, Magna Carta: Text and Commentary 43 (1964), and transposed into our constitutional system as a fundamental right in every individual." (Emphasis added.) See The Improvement of the Administration of Justice, Am. Bar Ass'n., Fifth Edition 1971, p. 63. It was also the conclusion of the section on judicial administration of the American Bar Association that:
Judge Irving R. Kaufman, of the United States First Circuit Court of Appeals and presently Chairman of the Judicial Conference Committee on the Operation of the Jury System, alluded to the fundamental nature of the jury system thusly:
Recognizing the importance of trial by jury to the American system of justice,
I would hold that, as long as the laws of Louisiana accord to its people the right to trial by jury in civil cases, the Appellate Courts are prohibited by the Seventh Amendment to the United States Constitution from re-examining the facts found by the jury otherwise than according to the rules of the common law, and that any and all laws of the State of Louisiana in conflict with that holding should be declared unconstitutional, null and void.
For these reasons, I respectfully dissent.
An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.
28 U.S.C. § 2281.
28 U.S.C. § 1343(3).
The doctrine of Brown v. Chastain is not applicable here. First, the suit filed in federal court in Brown v. Chastain sought to attack the substantive decision rendered by a state court on a constitutional question; that is, the complaint in the federal attack on the merits of the case in the state court. In the instant cases, the plaintiffs resort to federal court in an attempt to challenge the procedure used by the state court, i. e. appellate review of facts. The judgments on the merits of the state tort actions are not attacked. Second, Brown v. Chastain involved a state court constitutional challenge decided in a true adversary context. The plaintiffs presented a constitutional challenge in the state court with the defendants representing the adverse view of the question. Third, although in Brown v. Chastain some reason exists for holding the plaintiffs to their initial choice of forum for the litigation of constitutional claims, the plaintiffs here had no real choice of forum. They could bring their tort actions only in state court, and, once they did, they were trapped in state court as their forum to challenge the state procedure. Finally, consistent with the principle of cooperative federalism, on which Brown v. Chastain is based, our approval of the Louisiana procedure fosters federalism by allowing latitude to the states in fashioning their systems of civil procedure.
The British Administration of Justice Act, 1956, gives jurisdiction over aircraft to Admiralty.
Henderson, The Background of the Seventh Amendment, 80 Harv.L.Rev. 289, 290, 335 (1966).
See Cushman, Incorporation, Due Process and the Bill of Rights, 51 Corn.L.Q. 467 (1966); Lacy, The Bill of Rights and the Fourteenth Amendment: The Evolution of the Absorption Doctrine, 23 William & Mary L.Rev. 37 (1966); Henkin, "Selective Incorporation" in the Fourteenth Amendment, 73 Yale L.J. 74 (1963): Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 Stan.L.Rev. 5 (1949). See especially Justice Harlan's dissent in Duncan v. Louisiana, 1968, 391 U.S. 145, 162, 88 S.Ct. 1444, 20 L.Ed.2d 491. See also articles cited in fn. 41 and the exchange of views between Professors Fairman, and Crosskey in volumes 21 and 22, U.Chi. L.Rev. (1953-54).
In Powell v. Texas, 1968, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254, Justice Marshall's opinion refers to "the Eighth Amendment as applied to the States through the Fourteenth Amendment," while Justice Fortas's opinion refers to "the Eighth Amendment, made applicable to the States through the Fourteenth Amendment." In Mancusi v. De Forte, 1968, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154, Justice Harlan's majority opinion refers to the respondent's, "Fourth and Fourteenth Amendment rights" and thereafter refers to the Fourth Amendment exclusively. In Board of Educ. v. Allen, 1968, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060, Justice White in the majority opinion formulated the question as whether the state law under review was "in conflict with the First and Fourteenth Amendments." In Sibron v. New York, 1968, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917, Chief Justice Warren said that the case presented "questions under the Fourth and Fourteenth Amendments," while, in the related case of Terry v. Ohio, 1968, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889, the Chief Justice referred to "the Fourth Amendment, made applicable to the States by the Fourteenth."
Duncan v. Louisiana, 391 U.S. at 149, fn. 14, 88 S.Ct. at 1447-1448.
391 U.S. at 155, 88 S.Ct. at 1450.
See also Kalven & Zeisel, The American Jury (1966); Sidgwick, The Elements of Politics 498 (4th ed. 1919); Hood, A New Fundamental Right, 16 La. Bar J. 233 (1968); Pound, Law in Books and Law in Action, Am.L.Rev., v. 44, p. 12 (1910); Sunderland, Verdicts, General and Special, Yale L.J., v. 29, p. 253 (1920); Wigmore, A Program for the Trial of a Jury Trial, J.Am.Jud.Soc., v. 12, p. 166 (1929); Green, Judge and Jury (1930); Curtis, The Trial Judge and the Jury, Vand.L.Rev., v. 5, p. 150 (1952); Wyzanski, A Trial Judge's Freedom and Responsibility, Harv.L.Rev., v. 65, p. 1281 (1953); Devlin Trial by Jury (1956); Williams, The Proof of Guilt (3d ed. 1963); Rashkow, Abolition of Civil Jury: Proposed Alternatives, 15 DePaul L.Rev. 416 (1966); Kreindler, The Jury System in Tort Cases: Some Misconceptions Considered, 51 A.B.A.J. 736 (1965); Summers, Some Merits of Civil Jury Trials, 39 Tul.L.Rev. 3 (1964); Sarpy, Civil Juries, Their Decline and Eventual Fall, 11 Loyola L.Rev. 243 (1963); Hogan, Some Thoughts on Juries in Civil Cases, 50 A.B.A.J. 753 (1964); Harlan, The Bill of Rights and the Constitution, 50 A.B.A.J. 919 (1964); Tamm, A Proposal for Five-Member Civil Juries in the Federal Courts, 50 A.B.A.J. 162 (1964); White, Origin and Development of Trial by Jury, 29 Tenn.L.Rev. 8 (1961); The Jury System in Federal Courts — Report of the Judicial Conference Committee on the Operation of the Jury System, 26 F.R.D. 411, et seq. (1960); Holtzoff, Modern Trends in Trial by Jury, 16 Wash. & Lee L.Rev. 27 (1959); Palmer, On Trial: The Jury Trial, 20 F.R.D. 65 (1956); McLaughlin, Needed Improvements to our Jury System, 16 F.R.D. 481 (1951); Rossman, The Judge-Jury Relationship in the State Courts, 3 F.R.D. 98 (1943); . . . L. Green, Judge and Jury (1930); Joiner, Civil Justice and the Jury (1962). An extensive bibliography is found in Hearing Before the Subcommittee to Investigate the Administration of the Internal Security Act of the Senate Committee on the Judiciary, 84th Cong., 1st Sess., pp. 63-81 (1955).
See also Lumbard, Trial by Jury and Speedy Justice, 28 Wash. & Lee L.Rev. 309 (1971); Kronzer & O'Quinn, Let's Return to the Majority Rule in Civil Jury Cases, 8 Hous.L.Rev. 302 (1970); Zeisel, . . . And Then There were None: The Diminution of the Federal Jury, 38 U.Chi.L.Rev. 710 (1971).
See also Wiehl, The Six-Man Jury, 4 Gonzaga L.Rev. 35, 41 (1968) Tamm, The Five-Man Civil Jury: A Proposed Constitutional Amendment, 51 Geo.L.J. 120, 137 (1962).
Fed.R.Civ.Pro. 38(d); cf. Capital Traction Co. v. Hof, 1899, 174 U.S. 1, 19 S.Ct. 580, 43 L.Ed. 873.
His action may be interpreted as a granting of a new trial for insufficiency of the evidence. Such action is appropriate in federal court as consistent with the Seventh Amendment. See Fed.R.Civ.Pro. 59 (a); Montgomery Ward & Co. v. Duncan, 1940, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147. For purpose of this decision, however, we assume arguendo that the action involved re-examination of facts.
La.Constit. Art. 7, § 29.
La.Constit. Art. 7, § 10.