# Appendix — Colgrove v. Battin > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0181%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1973 - **Citation:** 413 U.S. 149 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0181%3A01. Public record. Not legal advice.