Appendix — Colgrove v. Battin

INDEX

Motion for 12 Man Jury and Order Denying Same

Petition for Writ of Mandamus .

Answer and Return of Respondent, United

ie aa eee eee

Farm Mutual Automobile Insurance Company

Opinion and Order of United States Court of

Appeals for the Ninth Circuit, Denying

United States District Court for the District of

Montana, Rule 13(d)1

Certificate of Service

CHRONOLOGICAL LIST OF PERTINENT DOCKET DATES

U.S. District Court for the District of Montana:

September 22,1971 Motion for 12 Men Jury and Order

Deny ing Request for 12 Man Jury

October 5, 1971 Order Vacating Trial Date Subject

to Court of Appeals Ruling

U.S. Circuit Court of Appeals for the Ninth Circuit:

October 4, 1971 Petition for Writ of Mandamus

October 13, 1971 cane Staying Jury Trial in District

November 10, 1971 Answer and Return of Respondent,

U.S. District Judge Battin

December 14, 1971 Answer of Respondent State Farm

Mutual Automobile Insurance

: Company

March 6, 1972 Opinion and Order Denying Writ

of Mandamus

U.S. Supreme Court:

May 4, 1972 Petition for Writ of Certiorari

October 10, 1972 Order Granting Certiorari

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

BILLINGS DIVISION

Plaintiff,

Civil No. 783

* 21

STATE FARM MUTUAL

AUTOMOBILE INSURANCE

COMPANY and WAYNE CALKINS,

Defendants.

a oe

TRANSCRIPT OF MOTION

AND RULING OF COURT

PROCEEDINGS

September 22, 1971

1:30 P.M.

MR. COLGROVE: | ask you, Your Honor, that you waive

the local rule and go on a twelve-man jury, in place of the six-man

jury.

THE COURT: The motion and request of counsel for the

Plaintiff to waive the local rule requiring a six-man jury in a civil

case and abide by rule 48 of the Federal Rules of Civil Procedure

is denied, The Court intends to impanel a six-man jury to try the

case. 3

In order to accommodate you, I will set this over to October

12th. in vacate the trial setting heretofore made of September

27th, at 9:30 A. M, and reset it for October 12th at 9:30 A.M.

ROLAND V. COLGROVE,

al PETITION FOR WRIT

HON. JAMES F. BATTIN, UNITED

DISTRICT OF MONTANA, BILLINGS

DIVISION,

comes now Roland V. Colgrove, petitioner and plaintiff

above-named, and petitions this court or any judge thereof to is

sue a writ of mandamus directing the Hon. James F. Battin,

Judge of the United States District Court for the District of Mon-

tana, Billings Division, to try Civil No. 783 to a trial jury of twelve

persons, rather than to a jury of six persons as heretofore ordered

by the District Court, pursuant to Rule 13(d)1 of the Revised

Rules of Procedure of the United States District Court for the

District of Montana.

J.

THE FACTS SUPPORTING THE

PETITION ARE AS FOLLOWS:

(1) Rule 13(d)1 of the Revised Rules of Procedure of the

United States District Court for the District of Montana became

effective on September 1, 1971, and provides:

A jury for the trial of civil cases shall consist

cot 6 persons 72

(2) The District Court fixed September 27, 1971 for, the

commencement of the 755 85 cbt No. 783 to a trial jury von-

1 persons.

—— ds 1971, 3 bees the court to

try Givi No. 783 to a trial jury of twelve persons.

3.

rescheduled the trial of the case to commence on October 12,

1971, neee

Sage it.

THE ISSUES HEREIN PRESENTED

. ARE AS FOLLOWS:

(1) Williams y. Florida, 26 L.Ed. 2d 446, interpreted only

the Sixth Amendment as it related to the number of trial jurors

in criminal actions and expressly left undecided whether Congress

and the States were prohibited by the Seventh Amendment from

reducing trial jurors in civil actions to any number less than

2) District Court Rule 13(d)1 is inconsistent with Rule 48

and violates Rule 83.

(3) Congress, having declared that a civil trial jury less than

twelve may be had only on stipulation of the parties, conferred

upon the parties rights which the District Court may not alter,

amend, or repeal by local rule.

111.

THE WRIT SHOULD BE ISSUED

FOR THE FOLLOWING REASONS:

(1) A trial on the merits of Civil No. 783, without first de-

termining the validity of local Rule 13(d)1 would needlessly con-

sume judicial time, effort and expense in the trial court and in

the appellate court, in the event of an appeal. An appeal by the

ee Party is, almost certain, because:

la] Local Rule 13(d)1 may be unconstitutional as vio-

lating the Seventh Amendment relating to civil actions wherein

the words common law’ twice appear, The words common

daw" are absent from the Sixth Amendment. At common lawa

trial jury consists of twelve jurors. Williams . Florida, 26 L.Ed.

2d 446, held that a Florida statute limiting trial jurors to six i in

ee, eee Sixth Amendment, but in Note

4

30 * in part: ö

"While much eee e eee be

thought to bear equally on the interpretation of the

Seventh Amendment's jury trie provisions, we em-

phasize that the question is not before us; we do not

decide whether, for example, additional references to

the ‘common law’ that occur in the Seventh Amend-

ment might support a different interpretation.”

(b) Local Rule 13(d)1 limiting trial jurors to six in civil ac-

tions is inconsistent with Rule 48. Under Rule 83, District Courts

may make local rules regulating their practice “not inconsistent

with these rules." Rule 48 allows the parties to stipulate to a

trial jury of any number less than 12." The language is clear

that a panel of twelve jurors is contemplated, making Rule 13

_ (d)1 inconsistent with Rule 48.

(e Local Rule 13(d)1 also contravenes Rule 48 by fore-

closing a stipulation by the parties of a trial jury consisting of

vy number less. than twelve to- wit: Eleven, ten, nine, eight

or seven.

WHEREFORE, petitioner prays:

(1) That an order be issued, directed to the Hon. James f.

Battin, Judge of the United States District Court for the District

of Montana, Billings Division, directing him to vacate his order

that Civil No. 783 be tried to a trial jury of six persons and re-

quiring him to try the case to a trial jury of twelve persons.

(2). In the alternative, that an order be issued, ‘directed to

the Hon. James F. Battin, Judge of the United States District

Court for the District of Montana, Billings Division, requiring

him to show cause in this court, at a time to be designated, why

he should not vacate his order that Civil No. 783 be tried tos

trial jury of 6 persons and why he should not be required to ty

„„ ö

(3) That such stay of the trial proceedings fixed by the

nee District Judge to commence on October 12, 1971,

-5-

as may be necessary to enable this court to hear and determine

this petition be granted.

(4) That plaintiff have such additional relief and process

as may be necessary and appropriate in the premises.

Respectfully submitted,

Lloyd J. Skedd

Office and Post Office Address:

P. O. Box 201

Helena, Montana 59601: and

Roland V. Colgrove

Office and Post Office Address:

14 North 9th Street

P. O. Box 550

Miles City, Montana 59301

Attorneys for Plaintiff

By: Roland V. Colgrove

(Certificate of Service omitted)

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

(Title omitted in printing)

ANSWER AND RETURN

J.

Respondent accepts petitioner's statement of facts.

i.

- ISSUES

A. Whether Rules 83 and 48, Federal Rules of Civil Pro-

cedure, 28 United States Codes, require that

Rule 13(d)(1), Revised Rules of Procedure of the United States

District Court ei the District of EN, be voided by this

court.

8. Whether Rule 13(d)(1), Revised Rules of Procedure of

the United States District Court for the District of Mon-

dona, violates the Seventh Amendment to the United States npg

__ stitution and is therefore unconstitutional:

&

5 wits

eatin eatin eG

. S ‘SHOULD:NOT ISSUE

A. Rule 83, F N Cv. 28 U. C. provides that District

Courts may "make and amend rules"

governing practice in the respective districts, if those rules are

“not inconsistent with. these rules." Therefore, for this court to

hold that Montana District Court Rule 13(d)(1) cannot stand,

it must find that rule inconsistent with one of the Federal Rules

a ths):

alleges that the local rule in question is inconsis-

48, F. R. Civ. P., 28 U.S.C. That rule is stated as

„Rule 48. Juries of Less than Twelve Majority

Verdict.

“The parties may stipulate that the jury shall

consist of any number less than twelve or that

a verdict or a finding of a stated majority of the

jurors shall be taken as the verdict or finding of

the jury. " :

Respondent contends that the Montana District Court Rule

13(d)(1) is not inconsistent with Rule 48, F.R.Civ.P., 28 U.S.C.

Rule 13(d)}(1) reads as follows:

"Rule 13

"(d) Jury Trials.

1. A jury for the trial of civil cases shall con-

sist of six persons plus such al jurors as may

be impaneled.

In Rule 48, Federal Rules of Civil Brogecre, Congress did

not require that j juries be made up of twelve members. Rather,

Congress merely provided one way in which a jury of less than 1

twelve members might be properly formed. Congress did not,

however, specify in Rule 48 that the only way a jury of less than

twelve persons could be formed was by stipulation.

To hold that Rule 48 requires a jury of twelve members is

7.

to put words in the mouth of Congress and attribute something

to that rule which is not required and which was not intended.

In view of the decision of the United States Supreme Court in

Williams v. Florida, 399 U.S. 78 (1970), wherein a Florida rule

providing that a six-member jury de criminal cases was up-

held, ens 8 een Rule 48 has even more

support.

The Respondent recognizes that the Supreme Court in Wil.

liams indicated that a legislature could find a good reason why a

twelve-member jury was preferable. However, the Court stated

that its stra,

. does no more than leave these considerations

to Congress and the States, unrestrained by an inter-

pretation of the Sixth Amendment that would for-

ever dictate the precise number that can constitute

a jury. Williams, 399 U.S. at 103.

Because the decision in Williams as to the number of jurors

in criminal cases, and by implication in civil cases, in Federal Dist-

riet Court is left to Congress, its intent must rule. Respondent

urges this court to rule, based upon the language which Congress

chose to use in Rule 48, that it was not the intent of Congress to

require in that rule that juries must consist of twelve, and only

twelve, persons, unless the parties stipulate to a lesser number.

Certainly, had Congress intended this to be the rule, it could have

specifically so stated. Instead, Congress elected to use language

which. can reasonably be construed to show an intent to allow

juries. of less than twelve persons by means other than stipulation

of the parties. :

Such an interpretation is further supported by the fact that

Congress in writing the criminal counterpart to Rule 48, Rule

23(b), Federal Rules.of Criminal Procedure, 18 U S. C. specifical

ly stated that juries were to be made up of twelve persons.

The Montana District Court is not alone in adopting a six-

8

man jury rule. As of October 1. 1971, thirty-one districts

had put into effect similar rules. As early as January 1, 1971,

the District of Minnesota adopted a six · man jury rule for speci-

Minnesota, in an article entitled "The Six-Man Jury in the Fed

eral Court” (hereto attached and marked Exhibit A, discussed

| eee ee. rule. Discussing the Williams

“It is logical to conclude thavit called onli

do so the Supreme Court would take a similar

view of the jury trial provision of the Seventh

Amendment. it appears highly unlikely that

the Court would give a stricter interpretation

dealing with civil cases than it now has to the

Sixth Amendment provision dealing with crimi-

nal trials." Devitt, Page 2, Exhibit fo

B. ~ Respondent contends that the Constitution of the United

States does not require that juries in civil trials consist

necessarily of twelve members. The Seventh Amendment to the

eee ace AN PEO

un Suits at common law, where the value in con-

troversy shall exceed twenty dollars, the right of

trial by jury shall be preserved, and no fact tried

by ajury, shall be otherwise reexamined in any

Court of the United States, than according to the

? rules of the common law.

While the Supreme Court in Williams, supra, dealt with the

meaning of the jury trial provisions of the Sixth Amendment as

gage ee ee the Court stated in a footnote:

"While much of our discussion in this case may be

. "thought to bear equally upon the interpretation of

mme Seventh Amendment's jury trial provisions, we

emphasize that the question is not before us; we

do not decide whether, Jon ene additional

-9-

references to the ‘common law that occur in the

Seventh Amendment might support a different

interpretation." Williams, 399 U.S. at 92, n.

30,

Respondent submits that these references in the Seventh Amend-

ment to the common law do not mandate a finding that a twelve-

member jury is required in civil trials.

The first reference to the common law merely defines the

type of case in which the right of jury trial exists. The term

common law" is used to.distinguish a case at law", which tradi-

tionally included the right to jury trial, from cases in equity,

which traditionally did not include that right. Ross-Meehan Brake

Shoe Foundry Co. v. Southern Malleable Iron Co., 72 F. 957,

960 (C. C. E. O. Tenn. 1896).

The second reference to the common law in the Seventh

Amendment merely assures that decisions of fact made by a jury

shall not be reexamined in any court of the United States except

according to the established rules of the common law. Baltimore

and Carolina Line, Inc. v. Redman, 295 U.S. 654, 657 (1935).

Clearly, these references to the common law do not pertain

to the make-up or nature of the jury itself. Consequently, it is

Respondent's contention that the Supreme Court's interpretation

of the meaning of the right to trial by jury as it pertains to the

Sixth Amendment is completely applicable to the meaning of the

right to trial by jury as it pertains to the Seventh Amendment.

The Supreme Court, in Williams, summing up the significance

of the number twelve as it applied to the size of a jury, stated:

"In short, while sometime in the 14th century the

size of the jury at common law came to be fixed

generally at twelve, that particular feature of the

jury system appears to have been a historical acci-

dent, unrelated to the great purposes which gave

rise to the jury in the first place. Williams, 399

U.S. at 88-90.

In discussing earlier cases which had upheld the theory that

— —

red to a jury. Williams, 399 U.S. at 91.

in a footnote, the Supreme Court found a similar situation exist-

ing as to interpretation of civil jury trial requirements:

"Similarly, cases interpreting the jury trial provi-

sions of the Seventh Amendment generally leap

from the fact that the jury possessed a certain

feature at common law to the conclusion that

that feature must have been preserved by the

amendment's simple reference to trial by jury.

„ . Citing cases. Williams, 399 U.S. at 92, n.

30. 5 8

Finally, the court recognized that it could not "devine pre-

cisely what the word jury imported to the Framers, the First

Congress, or the States in 1789.“ Williams, 399 U.S. at 98. The

Court added, however, that there was

" . absolutely no indication in the intent of

the Framers’ of an explicit decision to equate

the constitutional and common- -law character -

istics of the jury. Nothing i in this history sug-

gests, then, that we do violence to the letter of

the Constitution by turning to other than purely

historical considerations to determine which fea-

tures of the jury system, as it existed at common

law, were preserved in the Constitution. The rele-

vant inquiry, as we see it, must be the function

that the particular feature performs and its rela- ar

tion to the purposes of the jury trial. Measured :

by this standard, the twelve-man requirement

cannot be regarded as an indispensable compo-

nent of the Sixth Amendment.

aa.

1 Respondent urges the court to accept this language as rele-

‘vant, not only to an interpretation of the Sixth Amendment but

also to an interpretation of the Seventh Amendment, and apply

the logic of the Supreme Court in Williams to the case at bar.

Respondent recognizes that pre-Williams courts have ruled

that a jury in a civil trial must consist of twelve members. E. &.

Capital Traction Company v. Hof, 174 U.S. 1 (1899); American

Publishing Company v. Fisher; 166 U.S. 464 (1897); Diederich

v. American News Co., 128 F.2d 144, 145 (10th Cir. 1942).

Amendment and created language which, when considered in

view of the Williams’ decision, supports the contention of Re-

spondent.

There the Court stated:

"The aim of the [Seventh] Amendment, as this

court has held, is to preserve the substance of the

common-law right of trial by jury, as distinguished

from mere matters of form or procedure, and par-

ticularly to retain the common-law distinction be-

tween the province of the court and that of the

jury, whereby, in the absence of express or im-

plied consent to the contrary, issues of law are to

be resolved by the court and issues of fact are to be

determined by the jury under appropriate instruc-

tions by the court." Baltimore, 295 U.S. at 657.

It is the contention of Respondent that the substance of

the common law right of trial by jury does not include the re-

quirement that a jury consist of twelve members. Rather, Re-

spondent contends that the interpretation of the right of jury

trial guaranteed by the Sixth Amendment applies equally to the

right of jury trial guaranteed by the Seventh Amendment, and

that therefore a twelve-member jury is not required by the

ene en valine table: ‘A six-man jury system would de

crease the time needed for trial. Furthermore, a six · man jury sys-

tem would substantially reduce the cost to the taxpayer of jury

trials. ‘Respondent recognizes that monetary considerations are

secondary to considerations of justice. However, where, as here,

ann; the latter is an

in his article, Judge Devitt discussed financial savings achieved

under a Six mon jury rule in Minnesota: 1

n the five month period since the rule became

effective, the Judges of the Court have tried

every case covered by the rule to six-man juries

without incident or objection. The twenty-seven

civil cases So tried took eighty-nine trial days

totaling 524 juror days. The immediately dis-

cernable financial savings is substantial. Jurors

received statutory compensation of $20.00 per

day and an estimated average of $5.00 per day in

mileage and expense reimbursement for a total of

$25.00 per day: This figure multiplied by the

524 juror days which were saved by the six-man

jury rule represents a money saving of $13, 100.“

Devitt, Pages 5-6, Exhibit i

in reference to the time saved, Judge Devitt noted that dur-

ing ine some period in which the twenty-seven civil cases were, ‘

tried, the judges tried sixteen criminal cases and two civil anti.·

trust cases, not covered by the rule, to twelve-man juries.

Respondent submits, also, that six · member juries present a

more workable group for weighing factual determinations. With

-13-

‘the smaller group, its more likely that a valid, comprehending

study of the facts presented will be made by all members of the

jury. Better considered judgments are more apt to result. How-

ever, the possibility that one man can prevent a verdict from be-

ing unanimous, thereby creating a mistrial, still exists with equal

force. Consequently, certain advantages appear in the use of a

six-man jury, while the normal factors akin to the jury system

remain undiminished.

Respondent therefore urges that the court deny the petition

for a writ of mandamus, and instead uphold Rule 13(d)(1), Re-

vised Rules of Procedure of the United States District Court for

the District of Montana.

Respectfully submitted,

James F. Battin

United States District Judge

For the District of Montana

Billings Division

(Certificate of Service omitted)

EXHIBIT A“

THE SIX MAN JURY IN THE FEDERAL COURT

BY

EDWARD J. DEVITT, CHIEF JUDGE

U. S. DISTRICT COURT, DISTRICT OF MINNESOTA

The successful use of six-man juries in civil cases in the Fed-

eral District Court of Minnesota has resulted in improved efficien-

cy at less cost without sacrifice of legal rights and argues for na-

tionwide employment of juries of less than twelve in civil cases in

the federal courts.

The Minnesota experience, although based on a limited per-

iod of five months of actual operation, has evoked expressions of

complete satisfaction with the innovation from judges, lawyers

and litigants, has materially . trial time, increased judicial

4 in substantial financial saving to the gov-

ernment in jurors’ fees and expenses. ‘The fact that, to date, the

plan ‘has been emilated by the adoption of similar six-man jury

rules in at least 15 other federal districts and is under study in

10 or more additional districts and thatthe Judicial Conference

of the United States has endorsed in principle the use of smaller

juries in civil Cases supports the hopeful prognostication that

within a short time civil jury issues in the Federal Court System

ee

ee eee

our court proceedings was made constitutionally permissible by

the decision of the United States Supreme Court in its landmark

decision, Hillers. Florida, G08 Ct. 1893, decided June 22,

1970. M tos

| 14.

2 e ‘and | 1

5 4-

The Williams decision is historic in that it reversed a long-

held view that the “trial by jury requirement of the Sixth Amend-

ment to the United States Constitution necessitated a twelve-

member body. The Court evaluated historical documentation

for the assumed sanctity ; associated with the number twelve (such

as Lord Coke’ s-explanation | that the number of twelve is much

respected in holy writ, as 12 apostles, 12 stones, 12 tribes, etc.

and concluded that the reasons given in support of the number

twelve rest on little more than mystical or superstitious insights

5 Williams b. 1899.

tte fact the jury at common law was com-

PR anton! 12 is an historical accident, un- :

necessary to effect the purpose of the jury system — Hits

and wholly without significance ‘except to mystics.’ |

Wuliems, p. 1907. 5

: in overruling the earlier leading dechion ot Thompson v.

Utah, 170 U.S; 343, 18 S.Ct. 620 (1898), the Supreme Court

-15-

Wie hold that the 12-man panel is Not a necessary

5 ingredient of ‘trial by jury Williams, p. 1899.

- Williams was a criminal case involving a Florida statute

which provided for six-man juries, and construed that statute

against the jury provision of the Sixth Amendment. It is logical

to conclude that if called upon to do so the Supreme Court

would take a similar view of the jury trial provision of the Sev-

enth Amendment. It appears highly unlikely that the Court

would give a stricter interpretation to the Seventh Amendment

provision dealing with civil cases than it now has to the Sixth

Amendment provision dealing with criminal trials.

2.

There is no federal statute or rule requiring juries of twelve

in civil cases. | Twelve member juries are specifically required in

criminal cases by Rule 23 of the Federal Rules of Criminal Proced-

ure.

Absent a controlling statute or rule of general application

and in the light of the holding in Williams, the Judges of the

United States District Court for the District of Minnesota adopted

@ Local Rule providing for six-man juries in most civil cases.2 In

the interest of securing the cooperation of the members of the

Bar in accepting the Rule graciously and assisting in.making its

_ Purposes effective, the Rule was made applicable only to those

cases where jurisdiction was also obtainable in the state courts.

» Hence it was limited to Diversity, FELA and Jones Act cases

with the

. Rule 48 of the Federal Rules of Civil Procedure authorizes

the parties to stipulate to a jury of less than 12. This rule was

adopted before the Williams decision and was drafted in the

int of the then long established constitutional interpretation,

dee Thompson v. Utah; supra, that a jury must consist of 12 mem-

_ bers. But an inference that Rule 48 now requires a jury of 12

16.

— in i, aes bee ee

2. The Rule reads: “iT 1S ORDERED ¢ . effective January 1,

1971, the Loc nis cea Ortvad Bulkes Court for the

District of Minnesota, which became effective January 1, 1970,

shall be amended by the addition of a new rule, 6E, reading as

follows:

Rule GE, ee e den for une ie

On 28 U.S.C. Sec. 1332, 45 U.S.C, Sec. 51, and 46

U.S.C. Sec. 688, The jury shall consist of six members.

Dated: November 12, 1970.

/s/ EDWARD J. DEVITT

Chief Judge

/s/ EARL R. LARSON

District Judge

/s/ MILES W. LORD

District Judge

/s/ PHILIP NEVILLE

District Judge

3

thought that if the Rule in its limited form was effective and

withstood challenge, if any, it later would be extended to feder-

al jurisdiction cases as well.

The new Rule and the reasons for it were fully explained to

the. members of the Bar thru articles in legal periodicals and by

appearances before Bar Association meetings.

‘The Bar has fully cooperated in inaugurating the new Rule

and trial attorneys have expressed satisfaction with it in practice.

It is suggested that the present three peremptory strikes per

side now permitted by the statute, 28 U.S.C. 1870, be reduced to

two per side in order to provide a better proportioned relation,

ship between the size of the jury and the permitted number of ”

strikes. The present statute providing for a total of six peremptory

strikes was enacted in the light of the then constitutional requiremen'

V

/

-47-

of a jury of twelve. The Jury Committee of the Judicial Confer-

_ence of the United States has this suggested change under con

sideration and it seems reasonable to expect that such an amend.

ment will be recommended.

The Judges of the Court have been completely satisfied

with the new Rule. The practice under it permits an appreciable

saving of time for the Court and its supporting personnel in call-

ing, impaneling, interrogating and otherwise managing the jury

panel. Obviously it takes less time to poll six jurors than twelve.

Six move in and out of the jury box in a shorter time. The same

time saving is true in the jurors examination of exhibits during

trial. It is also likely, but difficult to substantiate, that six can

come to a unanimous decision more quickly than twelve.

Our experience has given us every reason to believe that the

verdicts of smaller juries are just as reasoned and sound, and are

based on the same care and consideration of the evidence and

faithful subscription to the Court's charge as are the verdicts of

the traditional twelve-man jury.2

Indeed the United States Supreme Court has expressed con-

fidence in the reliability of verdicts reached by juries of less than

twelve. Justice White observed in Williams:

. Certainly the reliability of the j jury as a fact-

finder hardly seems likely to be a function of its

and concluded that there is little reason to think that the proper

goals of the jury

ate 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 retained." Williams, p. 1906.

5 A not insignificant virtue of the change to the six · man jury

$i is the substantial financial saving it effects.

-18-

in the five month period since the Rule became effective,

he dof Cor hn id ry mv.

Rule to

f 3. Such experiments es bove been conducted support this

| Jury, 4 Gonzaga L. Rev. 35,

38-39 (1968) at 40-41; Tamm, The Five-Man Civil Jury; A Pro-

55 Geo. L. J. niga 128-130

42 J. Am ud. Soc. 138 (1958); Net Java:

9 Bull: of the Section of Jud.

Ad. of the ABA (May 1966); Phillips, A Jury of Six in all Cases,

30 Conn. B. J. 354 (1956).

six-man juries without incident or objection. The twenty-seven

civil cases so tried took eighty-nine trial days totalling 524 juror

days. The immediately discernible financial savings is substan-

tial. Jurors receive statutory compensation of $20.00 per day

and an estimated average of $5.00 per day in mileage and ex-

pense reimbursement for a total of $25.00 per day. This figure

multiplied by the 524 juror days which were saved by the six-

man jury Rule represents a money saving of $13,100.

If the Rule is broadened to cover all civil cases, as we ex-

pect to do in the near future, additional savings will be made.

The saving in jury expenses if the six-man jury rule were

effected country-wide is impressive. In fiscal year 1970, 3,371

Civil jury trials were conducted in the Federal Court System.

These cases took 10,701 trial days and, with twelve-person jur-

ies, a total of 128,512 juror days. If this figure is cut in half and

multiplied by $25.00 the approximate saving effected by employ-

ing a six, rather than a twelve-man jury, would exceed $1,600,000!

ne trend toward six-man juries in civil cases in the Federal

Courts is growing rapidly. In the past five months, 16 or more

,

2

19.

1 districts have adopted a rule providing for juries of less than

twelve. 5 é tty

4. During the same period the Judges tried 16 criminal

cases and two civil antitrust cases, not covered by the Rule, to

12 man juries. .

5. The Districts, effective date of the Rule; and the type of

cases to which it is made applicable are:

District Effective Applies

Minnesota SBM 1/1/71 Diversity, FELA, Jones Act

Eastern District of Illinois 2/1/71 Diversity, FELA, Jones Act

District of Columbia-Superior Court 2/1/21 Unless counsel request 12

Southern District of Florida 3/1/71 Diversity, FELA, Jones Act

Central District of California 3/1/71 All

(Continued)

6-

The Judges in at least 19 other districts are in the process of, or

are considering making the change.® These figures probably un-

derestimate the present number of districts which have adopted

the six-man jury since my information is limited to that acquired

thru unofficial correspondence with Judges and Clerks.

The movement in the federal courts has encouraged state

legislatures to provide for juries of less than twelve in state court

civil trials. New Mexico is considering the change and the Minneso-

ts Legislature recently enacted such a law.”

5. (continued)

_ Western District of Louisiana 4/15/71 Diversity, FELA, Jones Act

Southern District of Illinois 5/1/71 All

_ Eastern District of Louisiana 5/1/71 All

_ Northern District of Indiana 6/1/71 Diversity, FELA, Jones Act,

ae , Land Condemnation

Southern District of Indiana 6/1/71 Diversity, FELA, Jones Act,

Tage Land Condemnation

de Mexico 6/1/71 All

-20-

6/1/71 Diversity, FELA, Jones Act

6/1/71 All

6/1/71 All

7/1/71. Diversity, FELA, Jones Act

9/13/71 Alt

North Dakota

Northern District of Oklahoma

Eastern District of Pennsylvania

Western District of Pennsylvania

Rhode Island

South Dakota

New Hampshire Middle District of Tennessee

Eastern District of New York Northern District of Washington

Northern District of New York

7. House File 2094 enacted by 1971 Minnesota State Legislature,

amending Minnesota Statutes 1969, sections 593.01, 546.09 and

546.10.

Three states, Florida, Utah and Virginia, have provisions mak-

ing a less than twelve-man jury mandatory in civil jury trials in

their courts of general jurisdiction. Fla. Stat. Ann. Sec. 54.14

(1943) (Six jurors); Utah Const. Art 1, Sec. 10 (eight jurors); Va.

Code Ann. Sec. 8-193 (1950) (seven jurors).

* Ae

The Judicial Conference of the United States at its March

1971 meeting endorsed in principle the use of six-man juries in

civil cases and its committees are studying the best method for ef-

fecting the practice systemwide, either thru amendment of the

Civil Rules of Procedure, the enactment of specific statutory au-

thority, or both.

The constantly increasing work burden of the Federal Courts

requires a reappraisal of our practices and the adoption of ne y

methods and procedures to meet the added responsibility. in

the District of Minnesota the number of civil case filings increased

22%. and the number of criminal case filing increased 46% between

-21-

fiscal years 1969 and 1970. Rowland F. Kirks, Director of the

Administrative Office of the United States Courts states in his

1970 Annual Report that nationwide the civil and criminal fil-

ings have increased 13% over 1969, and that the backlog in the

United States District Courts is now the highest in history.

We have the duty, all of us, to search for new and better

methods of judicial administration. Employment of six-man

juries in civil cases is one way of increasing the efficiency of the

Courts and at considerable financial saving to the Government

and without sacrifice of essential legal rights of the litigants.

The experiment in Minnesota has been successful.

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_ (Title omitted in printing)

ANSWER OF RESPONDENT

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY

-

This respondent accepts petitioner's statement of facts.

II.

ISSUES

_ There are three issues presented:

A. Can a United States District Court adopt a rule of pro-

cedure which denies to civil litigants the right to a jury trial be-

fore a jury of twelve, or any number between six and twelve,

jurors? |

8. Should a United States District Court be permitted to

. : adopt a rule of procedure which, when applied, substantially

5 changes the nature of civil juries?

$2 See

— Should a United States District Court be permitted to

22.

adopt a rule of procedure, the validity of which is in substantial

doubt, thus imposing on litigants the risk and uncertainty of ap-

pellate reversal nnn e no con-

trol? 5 5

M.

eb THAT THE WRIT

SHOULD ISSUE

1. Rule 13(d)(1), Revised Rules of Procedure of the United

States District Court for the District of Montana, (hereinafter

simply Rule 13(d)(1) is in derogation of the Seventh Amendment

to the Constitution of the United States.

2. Rule 13(d)(1) violates 28 USC Sections 2071 and 2072

and Rule 83, F. f. Civ. P.

3. Rule 13(d)(1) violates and is inconsistent with 28 USC

Section 2072. :

4. Reform“ okihedery system by reducing the size of

juries, even if permissible and desirable, should be accomplished

legislatively and comprehensively ; specifically, a six-man jury

chosen after the exercise of six peremptory challenges is virtually

certain not to be a fair cross-section of the community.

5. ‘Even if this Court should approve Rule 13(d)(1), the is-

sue would be subject to doubt and uncertainty until the Supreme

Court of the United States decides it.

Respondent STATE FARM MUTUAL AUTOMOBILE IN-

SURANCE COMPANY » therefore urges 1 that the Court grant the

petition for a tit of ‘mandamus and direct the respondent to try

Civil No. 783 to a jury of twelve persons,

2 Respectfully submitted,

JARDINE, | STEPHENSON, BLEWETT

S WEAVER ©

„ 2 58 L. re eee

5 t STATE FARM

FFF . AUTOMOBILE WNSURANCE

a

-23-

COMPANY

700 First National Bank Building

Great Falls, Montana

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROLAND v. col BVE,

ö Petitioner,

MR: 25 8 8 No. 71-2546

HON. JAMES F. BATTIN, United States

District Judge for the District of Montana,

Billings Division,

Original Proceedings

Petition for Writ of Mandamus

Before: MERRILL, DUNIWAY and TRASK, Circuit Judges

MERRILL, Circuit Judge

7 Pursuant to the authority of Rule 83 of the Federal Rules

Of Civil Procedure, ' the District Court for the District of Mon-

tana promulgated its local Rule of Procedure 13(d)(1), effective

September 1, 1971:

A jury for the trial of civil cases shall consist of

six persons

m Civil Case No. 783 in the District Court for the District

ol Montana, petitioner, as plaintiff, sought a jury trial. Re-

__ Spondent District Judge, over the objection of petitioner that he

was entitled to a jury of twelve, ordered that trial be to a jury of

ex persons, pursuant to the new local rule. Petitioner, by these

a proceedings seeking a writ of mandamus, challenges the validity

of that rule. The defendant in Civil Case No. 783 has appeared

o these proceedings, aligning itself with the position of petitioner.

24.

ee ee

three levels: a

1. FFF

ment to the Constitution of the United States.

ma :

FES * 1

We conclude otherwise.

In Williams v. Florida, 399 US. 78 (070, the Supreme

Court held that the Sixth Amendment does not guarantee a right

to a jury of twelve in criminal cases. While the question of wheth-

er this conclusion should apply to civil cases under the Seventh

Amendment was reserved by the Court, 399 U.S. at 92 n. 30, the

reasons given for the holding seem to us to apply with equal force

to the Seventh Amendment. That amendment does, it is true, re-

fer to the common law. It does not, however, purport to define

the jury or trial by jury in terms of the common law.

2. It is contended that the local rule cannot stand in light

of 28 US. C. Sec. 2072, the statute which authorized promulga-

tion by the Supreme Court of the Federal Rules of Civil Proced-

ure.

‘We conclude otherwise.

Here we are confronted with the phrase ti . trial by

jury as at common law. This language upon its face would ap

pear to deny to the Supreme Court authority to dispense with

any characteristics of the jury or of trial by jury known to the

common law. This would indeed bea sweeping limitation. The

Congress has, it is true; - dealt extensively with the jury system.

28 US. 0. Sec. 1861 et seq. It is hardly conceivable, however,

that it was felt that the Supreme Court should not be allowed

initially to move in interstitial areas 7 2 in accordance with Per.

haps archaic ‘common law. procedures.*

An historical inquiry suggests that the language in question

was included in the predecessor statute, Act OT OF: 19, 1934,

. -25-

ch. 651, Sec. 2, 48 Stat. 1064, in anticipation that the forthcom-

ing rules would unite law and equity and to assure that with such

union the right of trial by jury would be neither expanded nor

_ contracted... Moore's Federal Practice, par, 38.06 at 44 (2d ed.

1971). See See.aiso House Rep. No. 1829, 73d Cong., 2d Sess.

1934). :

We conse the language in weer in accordance with

this e In our view, as at common law in this context

means in those cases in which the right existed at common la.

The parallel inclusion in Sec. 2072 of the phrase as declared by

the Seventh Amendment serves to assure that the essence of the

right to trial by jury itself will be maintained in appropriate cases

governed by the federal rules.> Each phrase then serves an im-

portant but distinct purpose.

: 3. It is contended that the rule is inconsistent with Rules

: 38(a)® and 487, Federal Rules of Civil Procedure, and thus vio-

_ lates Rule 83, supra , as quoted in note 1.

We conclude otherwise.

As to Rule 38(a), our discussion of the Seventh Amendment

applies.

Rule 48 must, we feel, be read in light of the fact that at the

time of promulgation a jury of twelve was the only jury known to

de federal law and was thought to be constitutionally required. &

The rule as promulgated thus provided means for obtaining a

less cumbersome fact-finding body than was otherwise provided by

law by allowing the parties in a civil trial together to waive their in-

_ dividual rights to s jury of a certain size.? To read it to provide

means for enlarging the jury, i.e., as an affirmative grant of ar tight

_ to the parties to demand more than the law otherwise requires, is

8 * stand it on its hesd.

Judge Devitt, Chief Judge of the United States District Court

1 a the District of Minnesota, writing on the subject of the six-man

aca seyret

Thompson v. Utah, Serer 343 (896). that

z jury must consist of 12 members. But an inter ·

ende that Rule 48 now requires a jury of 12 absent

a stipulation is, in my view, not a proper post-

~~ Williams interpretation of the Rule." Devitt, The.

a Six Man Jury in the Federal Court, 53 F. R. O. 273,

274 n. 1 (197). ,

Such apparently is also the view of the many district Courts which

havé now adopted rules similar to that of the Montana District

Writ denied.

_ FOOTNOTES

1. (Page 1) Rule 83 provides.in part that:

“Each district court by action of a majority of the

judges thereof may from time to time make and

amend rules governing its practice not inconsistent

With these rules.

2. * (Page 2) U.S. Const., amend. VII:

un Suits at common law, where the value in con-

trovetsy shall exceed twenty dollars, the right of

>; trial by jury shall be preserved, and no fact tried

dy e jury, shall be otherwise reexamined in any ö

Court of the United States, than according to the

© ules of the common law." ie g

3 . {Page 2) This section provides in par: N 5

1285 Such rules shall not abridge, enlarge or modify 73

‘any substantive right and shall preserve the right

of trial by jury as at common law and es declared

by the Seventh Amendment to the Constitution.“

4: (Page 2) Cf, Byrne v. Matczak, 254 F.2d 525, §28-29 (9th

R

27.

Cir.), cert. denied, 358 US, 816 (1958), where the court

determined {though in response to a constitutional attack)

that a district. judge had discretion to order dispersal of

me jury Overnight despite the fact that the allowance of

a dispersal is contrary to the old common low. The court

ruled that fair new procedures, which tend to facilitate

proper fact finding, are allowable, although not traditional.“

254 F.2d at 529.

5. (Page 3) Cf. Sibbach v. Wilson & Co., Inc., 312 USS. 1, 10

(1941). (If under the predecessor of Sec. 2072 the rules

are to prescribe a single form of action for cases at law and

suits in equity, the constitutional right to jury trial inherent

in the former must be preserved. (emphasis supplied).

6. (Page 3) Rule 38(a):

"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."

7. (Page 3) Rule 48:

"The parties may stipulate that the jury shall con-

sist of any number less than twelve or that a ver-

dict or a finding of a stated majority of the j jur-

ors shall be taken as the verdict or finding of the

jury.“

8. (Page 3) See the discussion in Williams v. Florida, 399 U.S.

78, 90-92 (1970).

We note that Fox v. United States, 417 F.2d 84, 89 (5th

Cir. 1969), cited Rule 48 for the proposition that the ver-

dict in federal civil trials must in the absence of stipulation

be given by twelve jurors. This decision, however, was ren-

dered prior to Williams v. Florida, discussed in text, and

thus quite understandably saw Rule 48 as reflecting the

‘stipulate to lesser number was entitled to trial by 3 jury

ot twelve.

9. (Page 3). ‘Cf “GA Moore's Federal Practice 2162 (2d ed. 1971).

10. (Page 4): See, e.g., Devitt, The Six Man Jury in the Federal

Courts, 53 f. R. D. 273, 277 n. 5 (07 1.

IN THE t UNITED STATES § DISTRICT COURT

ro THE DISTRICT OF MONTANA

ITIS HEREBY ORDERED that the Revised Rules of Pro-

cedure of the United States District Court for the District of

Montana effective January 1, 1968, be amended in the follow-

ing respects, — September 1, 1971:

** *

Rule 13(d)

(d) Jury Trials.

1. A jury for the trial of civil cases shall consist of six

persons plus such alternate jurors as may be impaneled.

* * *

29.

CERTIFICATE OF SERVICE

|, LLOYD J. SKEDD, attorney for the Petitioner herein,

hereby certify that on this 2. day of November, 1972, |

served the foregoing Single Appendix by depositing full, true

and correct copies thereof, in the United States mail, first class

postage prepaid, addressed as follows: (Airmail, 3 copies each)

Honorable James F. Battin

U.S. District Judge for Montana

Federal Building

Billings, Montana 59001

Mr. Cale Crowley

Crowley, Kilbourne, Haughey,

Hanson & Gallagher

Attorneys at Law

Electric Building, P.O. Box 2529

Billings, Montana 59101

Mr. Dale F. Galles

Harwood, Galles, Gunderson & Beiswanger

Attorneys at Law

Electric Building

Billings, Montana 59101

(attorneys for respondent)

Mr. L. Morris Ormseth

Jardine, Stephenson, Blewett & Weaver

Attorneys at Law

700 First National Bank Building

Great Falls, Montana 59403

(attorneys for State Farm

Automobile Insurance Company

Solicitor General

Department of Justice

Washington, O. C. 20530

Chin

/s/ Lloyd J. Skedd