Martin v. Heinold Commodities, Inc.

JUSTICE FREEMAN, concurring in part and dissenting in part:

I disagree with that part of today’s decision which holds no right to a jury trial exists under this State’s constitution for Consumer Fraud Act claims for legal damages. (163 Ill. 2d at 71-77.) The holding owes much to a perceived difference between article I, section 13, of our constitution and the seventh amendment of the Federal Constitution. (163 Ill. 2d at 71-74.) The holding is also grounded on the view that Consumer Fraud Act claims are singular in nature. 163 Ill. 2d at 74-77.

The majority is wrong in both respects. The expression of the right to a jury trial in this State’s constitution is the same as that of the seventh amendment. No basis exists to construe the clauses’ respective scopes differently. Thus, the conclusion that the seventh amendment right operates in statutory actions applies for article I, section 13, as well. The concern for any particular statutory claim is whether the right remedied resembles one for which the common law also afforded recovery.

The jury trial right operates for a Consumer Fraud Act claim because similar recovery was recognized at common law. The Consumer Fraud Act merely expands rights previously enforceable; it does not create entirely new ones. Rights now statutorily actionable are similar to ones protected at common law under a theory of fraud.

For those reasons, as explained more fully below, I dissent.

The Illinois Constitutional Jury Trial Right and the Seventh Amendment

"This State’s Constitution of 1970 guarantees that "[t]he right of trial by jury as heretofore enjoyed shall remain inviolate.” (Ill. Const. 1970, art. I, § 13.) The majority notes that similar clauses found in each of this State’s earlier constitutions have been construed the same in substance. (163 Ill. 2d at 72, citing George v. People (1897), 167 Ill. 447, 455 .) True enough. But different phraseology has been used by the respective drafters over time in expressing the right. As the clauses are construed to express the same right, the different phraseology reveals much about the right’s scope.

The phrase "shall remain inviolate” pertaining to preservation of a jury trial right is found in all four of this State’s constitutions. However, the clauses of the 1818 and 1848 constitutions did not also contain the phrase "as heretofore enjoyed” pertaining to what exactly was preserved. (Ill. Const. 1818, art. VIII, § 6; Ill. Const. 1848, art. XIII, § 6.) What jury trial right "remain[ed] inviolate” was first defined as one "heretofore enjoyed” in the 1870 constitution. (Ill. Const. 1870, art. II, § 5; see generally G. Braden & R. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 24-27 (1969).) Our present constitution retains the phrase "as heretofore enjoyed” as a reference point.

The phrase "as heretofore enjoyed” precludes an expansive construction of what jury trial right exists under this State’s constitution. It was not intended that the constitutional expression of the right would change the scope or nature of it. That is, what "remain[s] inviolate” under article I, section 13, is a jury trial right as was enjoyed at English common law during the 18th century. See Grace v. Howlett (1972), 51 Ill. 2d 478, 509 .

The phraseology of the jury trial right clause of the 1848 constitution provides a second reference point. That clause defined the jury trial right as one which "shall extend to all cases at law.” (Ill. Const. 1848, art. XIII, § 6.) The jury trial right was thus also limited to claims for legal, or money, damages as distinguished from equitable relief.

That is significant, again, because the substance of the right expressed has been held to be "the same under one constitution as under the other.” (See George, 167 Ill. at 455 .) Our present constitution, too, must distinguish between common law legal damage claims — for which the right operates — and common law claims for equitable relief — for which it does not.

Article I, section 13, thus must operate to provide a jury trial right as existed for actions at common law for legal damages. The majority here seems to understand the point. It observes that this State’s jury trial right does not operate for any claim "nonexistent” at or "unknown” to the common law even if legal damages are sought. (163 Ill. 2d at 71-73.) What the majority ignores, however, is that, by virtue of the Supreme Court’s construction, the seventh amendment’s scope is identical.

The seventh amendment, unlike the expressions of the jury trial right clauses of this State’s constitutions, directs its operation to "suits at common law.” (U.S. Const., amend. VII.) But the phrase "suits at common law” has long been interpreted to mean more than the body of English decisional law predating the amendment’s adoption. The phrase is read to mean suits at common law "in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights *** were administered.” (Emphasis added.) Parsons v. Bedford (1830), 28 U.S. (3 Pet.) 433, 446-47 , 7 L. Ed. 732, 737 .

Both article I, section 13, and the seventh amendment therefore preserve only such a jury trial right as existed at common law for legal damage claims. The central question is whether that includes claims for legal damages based on a statute.

That the seventh amendment’s scope includes statutory claims is considered by the Supreme Court a point " 'too obvious to be doubted.’ ” (Curtis v. Loether (1974), 415 U.S. 189, 193 , 39 L. Ed. 2d 260, 266 , 94 S. Ct. 1005, 1008 , quoting Rogers v. Loether (7th Cir. 1972), 467 F.2d 1110, 1114 (listing an "unbroken line of cases” in which the Court has so acknowledged the seventh amendment’s operation).) But, though the majority seems to see that, like the seventh amendment, article I, section 13, preserves a jury trial right as existed at common law for legal damage claims, it finds the same conclusion does not apply here. It cites, as reasons to more narrowly construe article I, section 13, two of this court’s passing observations about the jury trial right. The observations merely beg the central question.

The first observation is that this State’s jury trial right was not intended to operate " ' "in special or statutory proceedings unknown to the common law.” ’ ” (163 Ill. 2d at 73, quoting People ex rel. Keith v. Keith (1967), 38 Ill. 2d 405, 408 , quoting People v. Niesman (1934), 356 Ill. 322, 327 .) I agree with that. The point, however, has no meaning here. Actions "nonexistent” at or "unknown” to the common law plainly fall outside the reach of the constitutionally expressed right.

The second observation is that nothing in that constitutional expression " 'prohibits] the legislature from creating new rights unknown to the common law and provide for their determination without a jury.’ ” (163 Ill. 2d at 73; Standidge v. Chicago Rys. Co. (1912), 254 Ill. 524, 532 .) The point is no less evident than the first. New rights — those truly nonexistent at or unknown to the common law — are beyond the express protections of the constitutional expression. Given such a new right, a jury trial could only be guaranteed as a matter of legislative prerogative.

Ironically, the majority misses what aid the second observation provides on the issue. The quoted statement refers, quite accurately, to rights — not actions — nonexistent at or unknown to the common law. The type of action is immaterial in determining what could be said to be nonexistent at or unknown to the common law. (See Parsons, 28 U.S. (3 Pet.) at 445-46 , 7 L. Ed. at 737 (noting that the Federal right extends to all suits "whatever may be the peculiar form which they may assume to settle legal rights”).) Statutory actions, of course, did not exist at common law in any literal sense. The concern is simply whether the substantive right giving rise to legal recovery resembles one for which recovery could be had at common law. That a right formerly actionable or enforceable at common law is now the subject of codification is immaterial. See Rogers, 467 F.2d at 1117 .

Beyond misapprehending what has been noted in the past about this State’s constitutional jury trial right, the majority does not explain why article I, section 13, and the seventh amendment should not be similarly construed. The analysis regarding the seventh amendment was first expounded in Curtis v. Loether (1974), 415 U.S. 189 , 39 L. Ed. 2d 260 , 94 S. Ct. 1005 , which involved an action under the Civil Rights Act of 1968. But the basic principle had actually been established in Parsons, 28 U.S. (3 Pet.) at 446-47 , 7 L. Ed. at 737 . There, Justice Story had concluded that the amendment " 'embrace[d] all suits *** not of equity and admiralty jurisdiction, whatever might be the peculiar form which they may assume to settle legal rights.’ ” (Curtis, 415 U.S. at 193 , 39 L. Ed. 2d at 266 , 94 S. Ct. at 1008 , citing Parsons, 28 U.S. (3 Pet.) at 446-47 , 7 L. Ed. at 732 .) The seventh amendment right therefore operated even for a statutory claim so long as the "statute create[d] legal rights and remedies[ ] enforceable in an action for damages in the ordinary courts of law.” (Curtis, 415 U.S. at 194 , 39 L. Ed. 2d at 266 , 94 S. Ct. at 1008 .) In that sense, the Court had remarked, the seventh amendment "extends beyond the common law forms of action.” Curtis, 415 U.S. at 193 , 39 L. Ed. 2d at 265 , 94 S. Ct. at 1007 .

The majority here finds, in that last quoted remark, reason to believe allusion was being made to a more expansive scope for the seventh amendment than that of article I, section 13. (See 163 Ill. 2d at 73.) That reading is inaccurate. The Court’s holding makes plain that the seventh amendment "extends beyond common law forms of action” only to the extent it operates in statutory actions at all. As Justice Brennan has explained:

"The *** test *** expounded in Curtis v. Loether [citation] requires a court to compare the right at issue to 18th-century English forms of action to determine whether the historically analogous right was vindicated in an action at law or in equity, and to examine whether the remedy sought is legal or equitable in nature.” (Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry (1990), 494 U.S. 558, 574 , 108 L. Ed. 2d 519, 534 , 110 S. Ct. 1339, 1349-50 (Brennan, J., concurring in part and concurring in the judgment).)

The seventh amendment does not go beyond the common law in any other respect. Eighteenth-century English forms of action remain the basis for operation of the right — just as they do for article I, section 13. See Howlett, 51 Ill. 2d at 509 .

Let there be no doubt, the majority’s decision today limits this State’s constitutional jury trial right in a way never envisioned by its drafters. By failing to apply the same analysis given the seventh amendment, the majority precludes the operation of article I, section 13, in every statutory claim. Its misreading of case law reduces the concerns about what actions existed at or were known to the common law to a literal exercise; only actions of a type which, in fact, existed at or were known to the common law would come within reach of the scope of article I, section 13. Abandoned is any notion of the constitutional jury trial right as "an object of deep interest and solicitude” about which every encroachment has been "watched with great jealousy.” (Parsons, 28 U.S. (3 Pet.) at 446 , 7 L. Ed. at 736 .) It is too obvious to me that, like the seventh amendment, statutory claims for legal damages involving rights enforceable at common law come within the protection of article I, section 13, of this State’s constitution.

The Consumer Fraud Act

Whether article I, section 13, affords a jury trial right specifically for Consumer Fraud Act claims is a matter of two considerations: the claim must seek legal, not equitable, damages; and the claim must be based on a right similar to one enforceable at common law. The second of those concerns is the more important here. That concern directs a comparison of Consumer Fraud Act claims to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity. (See Chauffeurs, Teamsters & Helpers, Local No. 391, 494 U.S. at 565 , 108 L. Ed. 2d at 528 , 110 S. Ct. at 1345 ; see also Flaherty v. Murphy (1920), 291 Ill. 595, 598 (stating that the claim must be at least "analogous” to one "provided for under the laws of this State prior to the adoption of [this State’s constitution]”).) Again, material to the analysis is not simply the type of action, but whether it involves "rights and remedies of [a] sort typically enforced in an action at [common] law.” Curtis, 415 U.S. at 195 , 39 L. Ed. 2d at 267 , 94 S. Ct. at 1009 .

The majority rejects the argument here that a claim under the Consumer Fraud Act is analogous to one at common law for fraud. That conclusion is based on adaptation of the appellate court’s analysis in Richard/Allen/Winter, Ltd. v. Waldorf (1987), 156 Ill. App. 3d 717 . (163 Ill. 2d at 75.) The analysis in that case makes much of the Consumer Fraud Act’s purpose in affording consumers protection broader than that afforded at common law. 163 Ill. 2d at 75; see Richard/Allen/Winter, Ltd., 156 Ill. App. 3d at 721-22 .

There is no question about the broad protection afforded under the Consumer Fraud Act. Not only are claims satisfying the elements of common law fraud subsumed by it, the Act relaxes those elements to reach other types of related claims. (Siegal v. Levy Organization Development Co. (1992), 153 Ill. 2d 534, 543 .) Neither a showing of an intent to deceive nor a scheme to defraud is required under the Act. It is therefore possible to recover for innocent misrepresentations. (Ill. Rev. Stat. 1979, ch. 1211/2, par. 262; see B. McDonald, The Applicability of the Illinois Consumer Fraud and Deceptive Business Practices Act to Private Wrongs, 39 DePaul L. Rev. 95 , 96 (1989); see also 163 Ill. 2d at 75-76.) It is not even necessary to prove actionable reliance. (Ill. Rev. Stat. 1979, ch. 121V2, par. 262; see 163 Ill. 2d at 75-76.) Remedies, too, are extended under the Act. Ill. Rev. Stat. 1979, ch. 1211/2, par. 270a(c) (providing for the recovery of attorney fees).

In so eliminating various hurdles met in pursuing common law fraud actions, the majority is satisfied that the Consumer Fraud Act creates rights "unknown to the common law.” (163 Ill. 2d at 76.) I am not. I do not believe the mere broadening of a right for which legal recovery may be had makes the right new.

Instructive on the point is the Seventh Circuit Court of Appeals’ analysis in Rogers, adopted by the Supreme Court in Curtis, 415 U.S. at 195 , 39 L. Ed. 2d at 267 , 94 S. Ct. at 1009 . The jury trial right issue arose there, as noted earlier, pursuant to a statutory Federal civil rights action. The claim specifically alleged racial discrimination against a landlord for refusing to let an apartment. The nature of the right protected, the court concluded, was analogous to ones protected at common law. Rogers, 467 F.2d at 1117 .

Those actions, however, were hardly identical to the breadth of protections afforded under section 812 of the Civil Rights Act of 1968, the section allegedly violated. The actions cited included ones against innkeepers for refusing room to travellers without justification and a species of defamation available against landlords who refused to let rooms citing a tenant’s unfitness when race was the reason. (Rogers, 467 F.2d at 1117 .) The comparison to common law actions was stretched even further. The court noted common law claims for intentional infliction of emotional distress reflected possible aspects of a Civil Rights Act claim. (Rogers, 467 F.2d at 1117 .) The point is simple: statutory claims for legal damages do not have to be identical to common law actions for the jury trial right to attach, they need only be similar.

Given its view of our Consumer Fraud Act, the majority, I am certain, would view the Federal Civil Rights Act of 1968 to provide new rights and remedies beyond those which existed at or were known to the common law. That act expanded, in no small way, the manner and type of actionable discrimination. Citing the court of appeals analysis, the Supreme Court determined statutory claims pursuant to the Federal Civil Rights Act were analogous to common law actions. (Curtis, 415 U.S. at 193 , 39 L. Ed. 2d at 266 , 94 S. Ct. at 1008 .) Unfortunately, the majority fails to appreciate the import of that analysis.

The same logic applied by the Supreme Court applies here to show that the Consumer Fraud Act is analogous to actions based on fraud at common law. The requisite elements of a Consumer Fraud Act claim are irrelevant. A claim under the Act is analogous to one at common law simply if the underlying right protected, not what is necessary to its enforcement, is new.

The Consumer Fraud Act does not create fundamentally new rights not previously enforceable. Instead, it continues to protect consumers’ interests in the marketplace. Those same interests found similar protection at common law under a theory of fraud. The Act may more comprehensively protect those interests by expanding, similar to the Civil Rights Act, the manner and type of actionable conduct. But the underlying interests protected by the Consumer Fraud Act are not dissimilar to those long protected at common law. Those rights, now statutorily enforceable, are no less analogous to common law fraud actions than are Federal Civil Rights Act claims to the common law actions noted above.

The majority also notes that the Consumer Fraud Act nowhere provides for jury trials. (163 Ill. 2d at 76.) It again is persuaded by the appellate court’s reasoning in Richard/ Allen/ Winter, Ltd. The appellate court there noted that the Consumer Fraud Act provides only that a "court” may provide damages in its discretion.” (Richard/Allen/ Winter, Ltd., 156 Ill. App. 3d at 724-25 .) Noting "court” to be synonymous with "judge” or "judges,” it was determined that the General Assembly envisioned no participation by a "jury” in a Consumer Fraud Act claim. Richard/Allen/ Winter, Ltd., 156 Ill. App. 3d at 724-25 .

Even if that conclusion is correct, and I have serious doubt as to it, the point is of no consequence. The jury trial right at issue here is a matter of constitutional grace. The legislature has no legitimate authority to encroach upon it. Given that Consumer Fraud Act claims for legal damages create no new rights, the General Assembly could not, even if it so intended, preclude the operation of article I, section 13.

JUSTICE McMORROW joins in this partial concurrence and partial dissent.