Melancon v. McKeithen

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:

“The Supreme Court has • control of, and general supervisory jurisdiction over all inferior courts. * * * In civil case, its appellate jurisdiction extends to both the law and the facts. In criminal matters, its appellate jurisdiction extends to questions of law only.”

And Art. VII, § 29 of the Constitution of Louisiana provides that:

“All appeals of which the courts of appeal have appellate jurisdiction as provided in this Section shall be on both the law and the facts, except where the appeal is limited to questions of law only by any other Section of this Constitution.”

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 *1054 set aside the findings of fact of a jury violates the provisions of the Seventh Amendment to the United States Constitution, which, they contend, is operative on the States through the due process clause of the Fourteenth Amendment. The Seventh Amendment provides:

“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and 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.”

The Fourteenth Amendment, Section 1, says:

“ * * * nor shall any State deprive any person of life, liberty, or property, without due process of law; * * * ”

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 *1055 the rules of common law? What the Supreme Court has to date not done, cannot answer this question. And secondly, a fallacy in the Court’s conclusion is that the provision of Louisiana law complained of by these plaintiffs is a provision of law directly contrary to the Federal Rules of Civil Procedure and not “analogous to the procedures” established by those rules. For example, Rule 38 of the Federal Rules of Civil Procedure expressly provide:

“The right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate.”

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:

“One of the objections made to the acceptance of the constitution as it came from the hands of the convention of 1787 was that it did not, in express words,- preserve the right of trial by jury, and that, under it, facts tried by a jury could be re-examined by the courts of the United States otherwise than according to the rules of the common law. The seventh amendment was intended to meet those objections, and to deprive the courts of the United States of any such authority.” 17 S.Ct. 581, 587 .

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

*1056 American people, is simply to defy history. The Declaration of Resolves of the First Continental Congress, signed on October 14, 1774, had, as one of its provisions :

“5. That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.” See Stuart Gerry Brown, “We Hold These Truths,” 1941, p. 20.

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:

“11. That in controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred.” See “We Hold These Truths,” supra, p. 35.

The Declaration of Independence, written by Thomas Jefferson between June 10 and July 4, 1776, in reciting grievances against King George, includes :

“For depriving us in many cases of the benefits of Trial by Jury.” See “We Hold These Truths,” supra, p. 39.

The Massachusetts Bill of Rights, largely the work of John Adams, added to the Massachusetts Constitution in 1780, provides:

“XV. In all controversies concerning property, and in all suits between two or more persons * * * the parties have a right to a trial by jury; and this method of procedure shall be held sacred.” See “We Hold These Truths,” supra, p. 53.

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:

“ * * * for depriving us of the accustomed and inestimable privilege of trial by jury in cases affecting both life and property;” See Documents of American History, 8th Edition, by Henry Steele Commager, p. 93.

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:

“The inhabitants of the said territory shall always be entitled to the benefit of the writ of habeas corpus, and of the trial by jury. * * * No man shall be deprived of his liberty or property, but by the judgment of his peers or the law of the land.” See Documents of American History, supra, p. 130-131.

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 *1057 right to trial by jury in civil cases. He said:

“The trial by jury is justly dear to the American people. It has always been an object of deep interest and solicitude, and every encroachment upon it has been watched with great jealousy. The right to such a trial is, it is believed, incorporated into and secured in every State constitution in the Union; and it is found in the constitution of Louisiana. One of the strongest objections originally taken against the Constitution of the United States, was the want of an express provision securing the right of trial by jury in civil eases. As soon as the Constitution was adopted, this right was secured by the seventh amendment of the Constitution proposed by Congress; and which received an assent of the people so general as to establish its importance as a fundamental guarantee of the rights and liberties of the people.” (Emphasis added.) 3 Pet. 433, 443 .

And then, to dispel the idea, which has beeh 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:

“The phrase ‘common law,’ found in this clause, is used in contradistinction to equity, and admiralty, and maritime jurisdiction. The Constitution has declared in the third article, ‘that the judicial power shall extend to all cases in law and equity arising under this Constitution, and the laws of the United States, and treaties made or which shall be made under their authority,’ etc., and to all cases of admiralty and maritime jurisdiction. It is well known that in civil causes, in courts of equity and admiralty, juries do not intervene, and that courts of equity use the trial by jury only in extraordinary cases to inform the conscience of the court. When, therefore, we find that the amendment requires that the right of trial by jury shall be preserved in * * * suits at common law, the natural conclusion is that this distinction was present to the minds of the framers of the amendment. By common law they meant that the Constitution denominated in the third article ‘law;’ not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered; or where, as in the admiralty, a mixture of public law, and maritime law and equity was often found in the same suit. Probably there were few, if any, States in the Union, in which some new legal remedies differing from the old common law forms were not in use; but in which, however, the trial by jury intervened, and the general regulations in other respects were according to the course of the common law. Proceedings in cases of partition, and of foreign and domestic attachment, might be cited as examples variously adopted and modified. In a just sense, the amendment, then, may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights.” 3 Pet. 433, 446 .

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. *1058 The Court, in commenting on the common law methods of reviewing facts, said:

“The only modes known to the common law to re-examine such facts are the granting of a new trial by the court where the issue was tried, or to which the record was properly returnable ; or the award of a venire facias de novo by an appellate court for some error of law which intervened in the proceedings. The Judiciary Act of 1789, ch. 20, sec. 17, has given to all the courts of the United States ‘power to grant new trials in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law.’ And the appellate jurisdiction has also been amply given by the same act, (sec. 22, 24) to this court to redress errors of law; and for such errors to award a new trial, in suits at law which have been tried by a jury. “Was it the intention of Congress, by the general language of the Act of 1824, to alter the appellate jurisdiction of this court, and to confer on it the power of granting a new trial by a re-examination of the facts tried by the jury — to enable it, after trial by jury, to do that in respect to the courts of the United States, sitting in Louisiana, which is denied to such courts sitting in all other states of the Union? We think not.”

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 Melaneon v. MeKeithen, 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. MeKeithen, 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 be *1059 fore us. There is no finding of manifest error, and the jury’s findings of fact are not re-examined by the Appellate Courts of Louisiana only according to the rules of the common law. The simple fact is that if the Judges of the Appellate Court in Louisiana disagree with the conclusions reached by the jury, they may, and often do, simply set the jury verdict aside without regard to whether or not manifest error was committed by the jury. In Louisiana the facts are passed upon a de novo basis by the Appellate Courts, based entirely upon a cold record, and without ever having had an opportunity to see and hear any witnesses. Under Louisiana law, the findings of fact of the jury are quite meaningless because, whether manifest error is found or not, the Appellate Courts are not bound by the jury’s findings. This, I believe, violates a fundamental right in contravention of the Seventh and Fourteenth Amendments to the United States Constitution.

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:

“As this case may go to the Supreme Court of the United States, we take occasion to correct an erroneous impression in regard to the powers of this Court over the facts of the case. Where evidence is certified by the Clerk, or a statement of facts is made by the District Judge, this Court does not examine the same as a Court of Error, but passes upon the truth of supposed facts, disregards the testimony of witnesses unworthy of belief, reviews and weighs the evidence, gives effect to that which preponderates, and, in fine, pronounces upon the testimony in the case precisely as the jury or the District Judge ought to have done. Jones v. Pereira, 13 La. Ann. 102 .”

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 cannot, under any circumstances, rationalize, as suggested by Judge Tate, in the face of the clear and unambiguous verbiage of the Constitution the courts’ right to change or in any way affect the jurisdiction or the right of appeal so granted to the litigant by the Constitution; nor can I under any circumstances persuade myself the appellate court should not reverse a factual decision of the trial court in the absence of manifest error; nor am I imbued with any impropriety in those instances wherein the appellate court might have decided a case differently by construing the evidence contrary to that of the trial court for in doing so it is doing nothing other than complying with the Constitution of the State. Explicitly the Constitution grants a litigant an appeal on both the law and the facts. Constitutionally, there is no basis for the view the appellate judge is required to accept the finding of fact of the trial court, though it differs from his own. Likewise, I am not in accord with the statement (from Judge Tate’s Article supra. Page 612): ‘For, if no weight at all is given to the trial court’s finding, then we might as well dispense with the trial below as an empty and time-wasting ceremonial. *1060 * * * for the reason that appeals are not taken from by far the greater number of decisions of the trial courts; however, conceding, if granted the constitutional right so explicitly set forth in our Constitution, more appeals would be filed if the litigant were apprised of the knowledge the appeal would be reviewed on both the law and the facts, the courts have no authority to curtail such appeals, even under such compelling reasons. In short, we have no basis for substituting our views — however persuasive, well founded and sound — for the directives appearing in the Constitution by which we are bound. Though in an effort to assuage our consciences we may resort to subtle and tenuous recitations to bolster our views, how can anyone read the clear, unequivocal and explicit constitutional provisions herein involved and attribute with any degree of reason any other meaning than that the litigant in Louisiana is, on appeal, guaranteed a review by the appellate court on both the law and facts? There is absolutely no rational basis on which the court may deny the litigant a review on the facts and grant a review on the law. Such result could only be obtained upon the court’s arbitrary decision to deny specifically granted constitutional rights to the litigant. I believe this to be wrong inasmuch as it denies, without valid reason, the vested constitutional rights of the litigant and, until directed otherwise by the Supreme Court of this State, I shall continue to review the record on appeal on the law and the facts and not on the question of the determination of the erroneousness of the decision of the trial court, and express my opinion on the issues presented on my own resolution of the same.” Fortenberry v. Scogin, 149 So.2d 732, 737, 738 , (La.App. 1st Cir. 1963).

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 Con *1061 stitution, and it was so “fundamental” a right that it could not be regulated in any way by the school board. It is further interesting to note that Judge Wisdom, in his dissent in Karr, said:

“My differences with the Court’s understanding of ‘fundamental’ rights are differences of legal attitude and philosophy. Judge Learned Hand once described ‘fundamental’ as a word ‘whose office usually, though quite innocently, is to disguise what [judges] are doing and impute to it a derivation far more impressive than their personal preferences, which are all that in fact lie behind the decision.’ L. Hand, The Bill of Rights, 70 (1958). I am sure Judge Hand would agree that his comments are equally applicable to judges' refusal to attach the ‘fundamental’ label.”

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 eases, 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:

“Exclusion of a person from consideration for jury service disenfranchises him just as surely as excluding him from the polls. As DeTaqueville observed in ‘Democracy in America’ in a chapter entitled ‘Trial by Jury in the United States Considered as a Political Institution’:

“ ‘The system of the jury, as it is understood in America, appears to me to be as direct and as extreme a consequence of the sovereignty of the people as universal suffrage. These institutions are two instruments of equal power, which contribute to the supremacy of the majority.’ ” [Vol. 1, “Democracy in

America”, The World’s Great Classics, Colonial Press.] See The Improvement of the Administration of Justice, supra, p. 63.

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:

“[T]here can be no universal respect for law unless all Americans feel that it is their law — that they have a stake in making it work. When large classes of people are denied a role in the legal process — even if that denial is wholly unintentional or inadvertent — there is bound to be a sense of alienation from the legal order.” Kaufman, A Fair Jury — The Essence of Justice, Mar-Apr. 1968 Trial Lawyers Forum 9, 20. See also The Improvement of the Administration of Justice, supra, p. 64.

Recognizing the importance of trial by jury to the American system of justice, *1062 Congress, in passing the Jury Selection Act of 1968, made sweeping changes in the method of selecting jurors, and made-it clear that it intended first to give litigants a right to jury trial, and secondly, to give all citizens an opportunity to serve on juries, and thirdly, to create an obligation on all citizens to serve on juries when summoned. Every United States District Court in the country was compelled by this Act to prepare elaborate jury selection plans, and then the plans had to be submitted to and approved by their respective Circuit Councils. The Judicial Conference Committee on the Operation of the Jury System is a continuing committee that devotes a tremendous number of judge hours to the study and improvement of the jury system. The amount of time and money devoted by judges to the operation and improvement of the jury system is incalculable as there is no record keeping designed to log this time. In 1962, the cost of juror fees for the Federal Courts alone was $4,800,000. In 1972, the appropriation for payment of juror fees in the Federal Courts was $15,930,000, and it is estimated that for 1973, that figure will increase to $18,830,000. I cite these figures simply to illustrate the fact that instead of the jury system declining in importance, as has been suggested by the majority of this Court, it has taken on a much larger role since 1968 in the administration of justice in the Federal Courts, and has apparently been considered fundamental enough for Congress to more than quadruple, since 1962, the amount of money it appropriates for juror fees alone. In short, I cannot subscribe to the view that the right to a meaningful trial by jury in civil cases is not a fundamental right. No one could seriously question the fact that the right to trial by jury in Federal Courts is protected by the Seventh Amendment, and no one could seriously question the fact that in the federal system, the facts found by the jury may not be re-examined by an appellate court except according to the rules of common law. I believe that the right to trial by jury as provided for in the Seventh Amendment to the United States Constitution is as fundamental a right as those contained in the remainder of the first eight Amendments, and that thus, the guarantees of the Seventh Amendment should be held to be operative on the States through the Fourteenth Amendment. I believe that the Seventh Amendment prohibits the States from granting a right to trial by jury in civil cases on the one hand, and then, on the other hand, as is done in Louisiana, nullifying the total effect of the jury trial by allowing the Appellate Judges to set aside the findings of the juries simply because they personally do not agree with those findings. The majority opinion states that 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, 92 U.S. 90 , 23 L.Ed. 678 , and that it was decided contrary to the position taken by the plaintiffs in these cases. It further states that “For a hundred years the Supreme Court had not deviated from Walker v. Sauvinet.” But the issue with which we are here concerned was not presented to the Court in Walker . In Walker , the question was whether or not a judge could, by statute, be permitted to direct a verdict when the jury failed to agree. In the cases before us now, the question is whether or not Appellate Courts can re-examine the facts found and agreed upon by a jury other than according to the rules of common law.

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.