Brief for the Respondent in Opposition — Ford Motor Co. v. Polk

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LIDShOARY: pee 1D

RLMPREME COURT, UL. &, f MAY 8 1976

MICHAEL RODAK, JR., CLEP

In the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-1428

THE FORD MOTOR COMPANY,

On PETITION FoR WRIT OF CERTIORARI TO THE

Unrrep STATEes Court or APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

Paut Scorr KELLY, JR.

1000 Bryant Building

1102 Grand Avenue

Kansas City, Missouri 64106

Attorney for Respondent

BE. L. Manpmenatt, Inrc., 926 Cherry Street, Kansas City, Mo. 64106, 421-8080

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Opinions Below ..................c.scccscscssscssesssesenseserassssnsnsesesosonressssees

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Constitutional Provision and Rule of Court Involved ....

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Question Presented .........0ccsncccrcecscccsmeccesecssonsveserssssenonssesoseess

Reasons Why the Writ Should Not Be Granted—

I. The Federal Courts Which Have Considered the

Issue Raised by Petitioner Have All Held That

the Erie Doctrine Does Not Require the District —

Court Sitting in a Diversity Action to Apply the

Law of the Forum State Pertaining to the Size

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II. This Court Has Consistently Held That Matters

Pertaining to the Jury Process in the Federal

Courts Are Governed by Federal Law Without

Regard to State Laws or Practices ................2..-+-

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Table of Authorities

CASES

Arcieri v. Erie Lackawanna Railway Co., 484 F.2d 451

Ca Ce, TT) nines crn ccsseisnenrnenecnsteniensereconntasanensectnnsteiinnes

Bernard v. Omaha Hotel, Inc., 482 F.2d 1222 (8th Cir.

EY eiestorseesnsapncechisicspioninenpaeryscrcoeconnedainienadiessineshilalelovixadnbiinsavetse

Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356

Be I IID faictcscoctensiicsunnecinniaicniscnnsnetdengnaemsbyienebenrtonsints

OR My PON

8 REESE RY IY

ST MNTLTE a OHOID 99 MRI se CON 2 ND ee 2+ ee OURO,

II

Colgrove v. Battin, 413 U.S. 149 (1973) ™ 7

Cooley v. Strickland Transportation Co., 459 F.2d 779

(5th Cir. 1972) 7

Dashiell v. Keauhou-Kona Co., 487 F.2d 957 (9th Cir.

1973) —

Erie Railroad Co. vy. Tompkins, 304 U.S. 64 (1938) -....... 4,5,9

Guaranty Trust Co. v. York, 326 U.S. 99 (1945) ............ 7

Magenau v. Aetna Freight Lines, Inc., 360 U.S. 273

STII Siccchchaleictheicalbpieedeeheniibesenhatiaesageeaniadaliaaignptinti~entimermneant

Palmer v. Ford Motor Co., 498 F.2d 952 (10th Cir. 1974) 4

Polk v. Ford Motor Co., 529 F.2d 259 (8th Cir. 1976) ... 4

5

8

~]

Simler v. Conner, 372 U.S. 221 (1963) ......

Williams v. Florida, 399 U.S. 78 (1970) -

Wilson v. Nooter Corp., 475 F.2d 497 (1st Cir.), cert.

eee ee ean 4

Winsby v. John Oster Manufacturing Co., 482 F.2d 276

SEE Ts SED sacisathegeteisatthahtnsienitanlentpindiadinhaienaniiinieeniaensinnsins 7

CONSTITUTIONAL PROVISION

AND RULE

Article I, Section 22(a), Constitution of the State of

Missouri 2,8

Rule 20.R.1., Rules of the United States District Court,

Western District of Missouri pis 3

In the Supreme Court of the United States

OCTOBER TERM, 1975

ME RN RTM INE

No. 75-1428

re aes

THE FORD MOTOR COMPANY,

Petitioner,

vs.

THOMAS POLK,

Respondent.

On PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CouRT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

TO: The Honorable, The Chief Justice and The Associ-

ate Justices of the Supreme Court of the United

States

SOAR ROP Pal 6. no “URN + OE ALTO SOBL ALS 1 a

OPINIONS BELOW

The United States District Court for the Western Dis-

trict of Missouri, Western Division, rendered no opinion.

The panel opinion of the United States Court of Appeals

for the Eighth Circuit is unreported, but is appended to

the Petition for a Writ of Certiorari. This opinion was

filed on October 30, 1974, Nos. 73-1255 and 73-1256. Ap-

pellees’ Petition for Rehearing En Banc was granted on

November 22, 1974.

The opinion of the United States Court of Appeals for

the Eighth Circuit on rehearing en banc is reported at

529 F.2d 259. The Second Petition for Rehearing En

Banc was denied on February 19, 1976.

JURISDICTION

Respondent does not question the jurisdiction as set

forth in the Petition.

STATE CONSTITUTIONAL PROVISION AND

RULE OF COURT INVOLVED

Article I, Section 22(a), Constitution of The State of

Right of trial by jury—qualifications of jurors—two-

thirds verdicts.

That the right of trial by jury as heretofore enjoyed

shall remain inviolate; provided that a jury for the

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Be

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trial of criminal and civil cases in courts not of rec-

ord may consist of less than 12 citizens as may be

prescribed by law, and a two-thirds majority of such }

number concurring may render a verdict in all civil |

cases; that in all civil cases in courts of record, three-

fourths of the members of the jury concurring may

render a verdict; and that in every criminal case any

defendant may, with the assent of the court, waive a

jury trial and submit the trial of such case to the

court, whose finding shall have the force and effect

of a verdict of a jury.

Nt a Ae he

Rule 20.R.1., Rules of the United States District Court

for the Western District of Missouri.

Unless otherwise specially ordered by the court in a

designated civil action or consolidated actions, the

juries shall consist of six members in all civil cases,

including but not limited to complex cases.

MI men

STATEMENT OF THE CASE

Petitioner’s statement of the case is substantially cor-

rect.

QUESTION PRESENTED

Is the District Court sitting in a diversity case re-

quired to empanel a jury of twelve members in deroga-

tion of a local court rule limiting juries to six members

when the law of the forum state requires a twelve-mem-

ber jury?

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ALE PN RIO LEENA AED B29 OT ALIN GIGS gC RES CNN

REASONS WHY THE WRIT SHOULD NOT

BE GRANTED

I. The Federal Courts Which Have Considered the

Issue Raised by Petitioner Have All Held That the

Erie Doctrine Does Not Require the District Court

Sitting in a Diversity Action to Apply the Law of

the Forum State Pertaining to the Size of the Jury.

The sole reason given by the Petitioner in support of

its request that the Court grant a Writ of Certiorari is the

assertion that the right to a twelve-member jury guaran-

teed by state law in state proceedings is a substantive right

which must be recognized and protected in federal di-

versity proceedings under the holding of this Court in Erie

Railroad Co. v. Tompkins, 304 U.S. 64 (1938). However,

petitioner has failed to cite a single federal case which

holds or even implies that state law relating to trial by

jury is a substantive matter within the meaning of the

Erie doctrine. In fact, every federal authority consider-

ing the subject has ruled to the contrary.

The precise question raised by the petitioner has now

been considered by four Circuit Courts of Appeals and

each has ruled adversely to petitioner’s position. Polk v.

Ford Motor Co., 529 F.2d 259 (8th Cir. 1976); Palmer v.

Ford Motor Co., 498 F.2d 952 (10th Cir. 1974); Dashiell

v. Keauhou-Kona Co., 487 F.2d 957 (9th Cir. 1973); Wil-

son v. Nooter Corp., 475 F.2d 497 (1st Cir.), cert. denied

414 U.S. 865 (1973). In each of these decisions the Courts

held that state practice requiring a twelve-member jury

does not mandate a trial by a twelve-member jury in the

federal court in a diversity action. In each case the Court

considered the argument that the state practice was en-

grafted upon ‘he federal practice by the Erie doctrine,

rer; ocercrm Trot cy

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and ir each case the argument was rejected on the grounds

that the number of jurors required under state law is a

procedural matter which need not be followed in a federal

diversity action under Erie. No contrary decision has been

cited to this Court and none appears from respondents’

research. Thus, the Petitioner has failed to make any

showing that the decision of the Eighth Circuit Court of

Appeals conflicts with the decisional law in the other Cir-

cuits or that it departs in any way from the usual course

of federal proceedings.

II. This Court Has Consistently Held That Matters

Pertaining to the Jury Process in the Federal

Courts Are Governed by Federal Law Without Re-

gard to State Laws or Practices.

Under the clear pronouncements of this Court, the

decision below was manifestly correct. In diversity cases

state practice pertaining to trial by jury has long been sub-

jugated to the federal practice. In Simler v. Conner, 372

U.S. 221 (1963), the Court held that the question of

whether an action was legal or equitable and therefore

whether a jury trial is to be afforded at all must be deter-

mined by reference to federal law without regard to state

law. The Court stated:

We agree with the respondent that the right to a jury

trial in the federal courts is to be determined as a

matter of federal law in diversity as well as other ac-

tions. The federal policy favoring jury trials is of

historic and continuing strength. .. . Only through a

holding that the jury-trial right is to be determined

according to federal law can the uniformity in its ex-

ercise which is demanded by the Seventh Amendment

be achieved. In diversity cases, of course, the sub-

stantive dimensions of the claim asserted finds its

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source in state law, Erie R. Co. v. Tompkins . . . but

the characterization of that state-created claim as le-

gal or equitable for purposes of whether a right to

jury trial is indicated must be made by recourse to

federal law.

372 U.S. at 222.

Similarly, in Byrd v. Blue Ridge Rural Electric Co-

operative, Inc., 356 U.S. 525 (1958), the Court, holding

that federal law controls the allocation of the fact-finding

process between judge and jury stated:

The federal system is an independent system for ad-

ministering justice to litigants who properly invoke

its jurisdiction. An essential characteristic of that

system is the manner in which, in civil common-law

actions, it distributes trial functions between judge

and jury and, under the influence—if not the com-

mand—of the Seventh Amendment, assigns the deci-

sions of disputed questions of fact to the jury... .

The policy of uniform enforcement of state-created

rights and obligations . . . cannot in every case exact

compliance with a state rule—not bound up with

rights and obligations—which disrupts the federal

system of allocating functions between judge and

jury. Herron v. Southern P. Co., 283 U.S. 91, 75 L.Ed.

857, 51 S.Ct. 383. Thus the inquiry here is whether

the federal policy favoring jury decisions of disputed

fact questions should yield to the state rule in the in-

terest of furthering the objective that the litigation

should not come out one way in the federal court and

another way in the state court.

We think that in the circumstances of this case the

federal court should not follow the state rule. It can-

not be gainsaid that there is a strong federal policy

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against allowing state rules to disrupt the judge-jury

relationship in the federal courts.

356 U.S. at 537-8. See also Magenau v. Aetna Freight §

Lines, Inc., 360 U.S. 273 (1959).

The federal decisions uniformly hold that litigants in

federal diversity cases have no Seventh Amendment right

to a trial by a jury consisting of twelve persons. Colgrove

v. Battin, 413 U.S. 149 (1973); Arcieri v. Erie Lackawanna

Railway Co., 484 F.2d 451 (6th Cir. 1973); Bernard v.

Omaha Hotel, Inc., 482 F.2d 1222 (8th Cir. 1973); Winsby

v. John Oster Manufacturing Co., 482 F.2d 276 (3d Cir. :

1973); Cooley v. Strickland Trmsportation Co., 459 F.2d

779 (Sth Cir. 1972). Petitione: has plainly failed to show

that the decision of the Eighth Circuit Court of Appeals is

contrary to a controlling decision of this Court or any

other federal court which has considered the question.

As noted by this Court, a federal court sitting in a

diversity case is “only another court of the State” and

may not “substantially affect the enforcement of a right

as given by the State.” Guaranty Trust Co. v. York, 326

U.S. 99, 108-9 (1945). However, as a matter of federal

law, the size of the jury is not outcome-determinative.

See Colgrove v. Battin, supra, at 160 where the Court said:

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BRE ATR NE AE PT ELL EE SF

We had no difficulty reaching the conclusion in Wil-

liams that a jury of six would guarantee an accused

the trial by jury secured by Art. III and the Sixth

Amendment. Significantly, our determination that

there was “no discernible difference between the re-

sults reached by the two different-sized juries,” 399 Z

US at 101, 26 LE2d 446, drew largely upon the re-

sults of studies of the operations of juries of six in

civil cases. Since then, much has been written about

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the six-member jury, but nothing that persuades us

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to depart from the conclusion reached in Williams.

Thus, while we express no view as to whether any

number less than six would suffice, we conclude that

a jury of six satisfies the Seventh Amendment’s guar-

antee of trial by jury in civil cases.

See also Williams v. Florida, 399 U.S. 78, 100-102 (1970),

holding that the Sixth Amendment does not prohibit a six

member jury in criminal cases, where this Court stated:

The purpose of a jury trial, as we noted in Duncan,

is to prevent oppression by the government... .

[W]e find little reason to think that these goals are

in any meaningful sense less likely to be achieved

when the jury numbers six, than when it numbers 12

—particularly if the requirement of unanimity is re-

tained. And, certainly the reliability of the jury as

a fact finder hardly seems likely to be a function of

size.

* a %

What few experiments have occurred—usually in the

civil area—indicate that there is no discernible dif-

ference between the results reached by the two dif-

ferent-sized juries. In short, neither currently avail-

able evidence nor theory suggests that the 12-man

jury is necessarily more advantageous to the defen-

dant than a jury composed of fewer members.

Indeed, if the outcome of the instant case was af-

fected by the application of state jury practice in the fed-

eral court, the outcome was skewed in Petitioner’s favor

because the Missouri law permits a verdict by nine of the

twelve jurors in a civil case, Mo. Const. art I, § 22 (a),

rather than the unanimous verdict required in the federal

court. It is clear under every test that the state practice

requiring a twelve-member jury is not a substantive mat-

SAE EL RE LLL IIE IE GTI LI LE LICL NIE. LOL! SOOT EE ENE ELIOT - Soe ee ee aaa

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ter which must be applied in the federal court under the

Erie doctrine. Every federal court which has considered

the question has so ruled.

CONCLUSION

Respondent respectfully submits that petitioner has

failed to establish any reasons why the writ should be

granted. The decision below did not involve an important

question of federal law which has not been, but should be,

settled by this court; nor has the Court of Appeals de-

cided a federal question in a way which conflicts with the

applicable decisions of this court or another Court of Ap-

peals on the same matter. The Court of Appeals cor-

rectly held that the size of a jury in a diversity case is a

procedural matter which is to be governed by federal law.

Therefore, and for the reasons stated above, respondent

states that the Petition for a Writ of Certiorari should be

f

denied.

Respectfully submitted,

Paut Scort KELLY, JR.

1000 Bryant Building ,

1102 Grand Avenue :

Kansas City, Missouri 64106 4

Attorney for Respondent :

GaGE & TUCKER

Of Counsel

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