# Petition for Writ of Certiorari — Colgrove v. Battin > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0181%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1973 - **Citation:** 413 U.S. 149 ## Text : CASES CITED _ Capital Traction Co. v. Hof, ‘Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 illiams v. Florida, 399 U.S. 78, 26 L.Ed.(2d) 466, 90 S.Ct. 1893 INDEX STATUTES CITED VSFFFEFTAT7 2s Sc VVV 5 2B US.C, Section2071 ᷑rr]ĩi VVV e an att FR h 8 Revised Rules of Procedure of the United States District Court of Montana, Rule 13(d)(1) MISCELLANEOUS 7 Moore's Federal Practice (2d), par. 88.08, pg. 4704 .. +--+ esteem rt SUPREME COURT OF THE UNITED STATES Term, 19 __ HONORABLE JAMES F. BATTIN, __ UNITED STATES DISTRICT "BILLINGS DIVISION, 2 Respondent. seen eee „6 „6 „% _ ROLAND V COLGROVE, Plaintiff, . 0 *. Civil No. 783 _ STATE FARM MUTUAL AUTOMOBILE __ INSURANCE COMPANY, Ase Defendant PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 2 Petitioner prays that a writ of certiorari issue to review the decision and order of the United States Court of Appeals for the Ninth Circuit entered in the above entitled case on March 6, 1972. OPINION BELOW The opinion of the United States Court of Appeals is not tioner a writ of mandamus to force the United States District Court for the District of Montana to try this case before a jury of twelve persons. A copy of said opinion is found in the Ap- JURISDICTION The order and decision of the United States Court of Ap- peals was entered on March 6, 1972. Jurisdiction of this Court is invoked under 28 U.S.C., Section 1254(1). QUESTIONS PRESENTED (1) Did the court below err in holding that the Seventh Amendment to the Constitution of the United States does not require that a United States District Court try a civil case be- fore a jury of twelve persons? 2 Did the court below err in holding that Rule 48 and Rule 83 of the Federal Rules of Civil Procedure do not require the trying of cases before a jury of twelve persons unless the parties stipulate otherwise? CONSTITUTIONAL PROVISIONS INVOLVED Admendment vl age in all criminal prosecutions, the accused shall ehjoy the right to a speedy and public trial, by an impar- tial jury of the State and district wherein the crime shall have been committed, which district shall have 1 gn been previously ascertained by aW. Amendment VII "In 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 a jury, shal! be otherwise reexamined in any Court of the United States, than according to the rules of common law. ws Le STATUTES AND RULES INVOLVED =, 8 U.S. C., Section 2071, provides: _ “The Supreme Court and all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business. Such rules shall be consistent with Acts of Congress and rules of practice and procedure prescribed by the Supreme Court.“ It is stated in 28 U.S. C., Section 2072: “The Supreme Court shall have the power to pre- scribe, by general rules, the forms of process, writs, pleadings, and motions, and the practice and pro- cedure of the district courts of the United States in civil actions. Such rules shall not abridge, enlarge or modify ' any substantive right and shall preserve the right of trial by jury as to common law and as declared by the Seventh Amendment to the Constitution.” Rule 48, Federal Rules of Civil Procedure, provides: "The parties may stipulate that the jury shall con- sist of any number less than twelve or that a verdict or a finding of a stated majority of the jurors shall de taken as the verdict or finding of the jury.“ Rule 83, Federal Rules of Civil Procedure, provides: “Each district court by action of a majority of the 4. judges thereof may from time to time make and amend rules governing its practice not inconsis- tent with these rules. in all cases not pro- vided for by rules, the district courts may regu- late their practice in any manner not inconsistent with these rules.” Rule 13(d)(1) of the Revised Rules of Procedure of the United States District Court for the District of Montana pro- 1 2 ines 2 f ; "A jury for the trial of civil cases shall consist of six persons STATEMENT OF THE CASE The suit in the United States District Court for the District of Montana, out of which the petition for writ of mandamus grew, was an action for libel and jurisdiction of the case is in- yoked under Title 28, U.S.C. 1414(b). There is diversity of citizenship between the parties hereto and the amount in con- troversy exceeds $10,000.00. The United States District Court for the District of Mon- tens passed Rule 13(d)(1) of the Revised Rules of Procedure of said court, and the same became effective on September 1, 1971. Pursuant to said Rule 13(d)(1), the United States Dis- trict Court set the trial of Civil No. 783 for September 27, 1971, to a jury consisting of six persons. The plaintiff moved the court to try Civil No. 783 to a trial jury of twelve persons. The court denied this motion, but rescheduled the trial of the case for October 12, 1971. Thereafter, the court vacated that setting and ordered that the resetting be subject to the direction of the Circuit Court of Appeals. The petitioner, on or about October 7, 1971, petitioned the Circuit Court of Appeals for the Ninth Circuit for a writ of mandamus. Thereafter, and on March 6, 1972, the Citcult Court of Appeals handed down its order and opinion denying the petition for writ of mandamus. 1 ＋ 5 REASONS FOR GRANTING THE WRIT ae (1). This Court, in Williams u. Florida, 399 U.S. 78, 2 L. Ed. (2d) 466, 90 S.Ct. 1893, while holding that the Seventh Amendment does not guarantee a right to a jury of _ twelve persons in a criminal case, in Note 30, 399 U.S. 92, "* * * we do not decide whether, for example, additional references to the common law’ that occur in the Seventh Amendment might sup- port a different interpretation." The Sixth Amendment does not use the words com- mon law. The Seventh Amendment uses the words com- mon law" twice. At common law, a jury consisted of twelve persons. Williams v. Florida, supra; Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854. This Court has heretofore ruled that the Seventh Amend- ment guaranteed a right to a jury of twelve persons. Capita/ Traction Co. v. Hof, 174 U.S, 1, 43 L.Ed. 873, 19 S.Ct. 580. The Court should now grant the writ of certiorari so the parties would not be subject to possible reversal of the case because of not trying the case before a jury of twelve persons. 85 (2) The U.S. District Court, under Rule 83 of the Fed- eral Rules of Civil Procedure, can make rules not inconsistent wit Federal Rules. 5 The local rules must not be inconsistent with the Feder- 24 Rules. 7 Moore's Federal Practice 2d, paragraph 83.03 4 Rule 48 of the Federal Rules of Civil Procedure gives the parties power to stipulate to a jury of less than twelve persons. It does not give the United States District Court me authority to force upon the parties a jury of less than twelve persons. In Fox v. United States, 417 F. (2d) 84, 4- 89 (5th Cir. 1969), ‘the Court held that, in the absence of a ‘stipulation, Rule 48 required a jury of twelve ‘persons. 28 US.C. 2071 grants to the Supreme Court and the other courts the power to make rules. 28 U.S.C. 2072 pro- vides for the power of the Supreme Court to make the gen- eral rules for all of the courts and to submit them to Con- gress. it is noteworthy in 28 U.S.C. 2072 that the following words are used: | „Such rules * * * shall preserve the right of trial by jury as a common law and as declared by the Seventh Amendment to the Constitu- tion." Congress, at the time of passing this bill, must have known that the accepted rule was that a common law jury consisted of twelve persons. It appears, therefore, that if a jury of twelve persons is not constitutionally necessary under the Seventh Amendment, that until Congress changes the law the United States District Court cannot force upon the parties a jury of less than twelve persons. CONCLUSION It is respectfully submitted that the petition for a writ f;; * LLOYD J. SKEDD p. O. Box 1195 aa Pa Counsel for Petitioner . APPENDIX IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ROLAND V. COLGROVE, Petitioner, . HON. JAMES F. BATTIN, bor the District of Montana, ‘Billings Division, Respondent. . ee See Bee mS Original Proceedings Petition for Writ of Mandamus Before: MERRILL, DUNIWAY and TRASK, Circuit Judges _ MERRILL, Circuit Judge Pursuant to the authority of Rule 83 of the Federal Rules ot 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 x In Civil Case No. 783 in the District Court for the District ol Montana, petitioner, as plaintiff, sought a jury trial. Respon- det District Judge, over the objection of petitioner that he was entitied to a jury of twelve, ordered that trial be to a jury of dix persons, pursuant to the new local rule. Petitioner, by these "Proceedings seeking a writ of mandamus, challenges the validity of that rule. The defendant in Civil Case No. 783 has appeared in these proceedings, aligning itself with the position of petitioner. The challenge to the District Court rule is primarily on 8 three levels: 1. It is contended that the rule violates the Seventh Amendment to the Constitution of the United States.” We conclude otherwise. | in Williams v. Florida, 399 U.S. 78 (1970), the Supreme Court held that the Sixth Amendment does not guarantee 2 right to a jury of twelve in criminal cases. While the question of whether 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 ap- ply with equal force to the Seventh Amendment. That amend- ment does, it is true, refer to the common law. t 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 oan Sec. 2072, the statute which authorized promul- by the Supreme Court of the Federal Rules of Civil procedure. 3 We conclude otherwise. Here we are confronted with the phrase “right of 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 be a sweeping limitation. The Congress has, it is true, dealt extensively with the jury system. 28 US.C. 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 save in accordance with perhaps archaic common law procedures.* An historical inquiry suggests that the language in ques- tion was included in the predecessor statute, Act of June 19, 1834, ch. 651, Sec. 2, 48 Stat. 1064, in anticipation that the forthcoming rules would unite law and equity and to assure Oo _ at with such union the right of trial by jury would be neither expanded nor contracted. 5 Moore's Federal Practice, par. 938.06 ee ee 1971). ‘See also House Rep. No. 1829, 73d Cong. 5 2d Sess. (19340. 5 We construe the language in question in accordance with nus position. In our view, “asat common lay / in this context a Means “in those cases in which the right existed at common law.” me parallel inclusion in Sec. 2072 of the phrase as declared 5 Co of the right to trial by jury itself will be maintained in appro- _ priate cases governed by the federal rules.> Each phrase then * but distinct purpose. 3. it is contended that the rule is inconsistent with Rules . end 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 Amend- ment applies. _ Rule 48 must, we feel, be read in light of the fact that at te time of promulgation a jury of twelve was the only jury ae ae ai law and was thought to be constitutional- w required. S The rule as promulgated thus provided means for obteining a less cumbersome fact-finding body than was other- Be i N N. a a 25 . i 728 * 123 * * . bes SHS ae -10- decision and was drafted in the light of the then dong established: constitutional interpretation, see: Thompson v. Utah, [170 U.S. 343 (1898)] , that a jury must consist of 12 members. But an infer- ence 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 Six Man Jury in the Federal Court, 53 F. R. D. 273, 274 n. 1 (1971). Such apparently is also the view of the many district courts which have now adopted rules similar to that of the Montana District Court. 10 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. Vit: in Suits at common law, where the value in contro- versy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the - United States, than according to the rules of the com- mon law.” 3. (Page 2) This section provides in part: ; Such rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as to common law and as declared by the) « i ‘Seventh Amendment to the Constitution." 4. (Page 2) Cf. Byrne v. Matczak, 254 F.2d 525, 528-20 om Cir.), cert. denied,358 U.S. 816 (1958), where the 7 th court determined (though in response to a constitutional attack) that a district judge had discretion to order disper- sal of the jury overnight despite the fact that the allow- - ance of a dispersal is contrary to the old common law. the court ruled that fair new procedures, which tend to facilitate proper fact finding, are allowable, although not traditional." 254 F.(2d) 529. (Page 3) Cf. Sibbach v. Wilson & Co., inc., 312 U.S. 1, 10 1941). (f 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). (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 in- violate." (Page 3) Rule 48: "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 ver- dict or finding of the jury." (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 verdict in federal civil trials must in the absence of stipulation be given by twelve jurors. This decision, however, was rendered prior to Williams v. Florida, discussed in text, and thus quite understandably saw Rule 48 as reflecting the then-established view that a party who did not choose to stipulate to a lesser number was entitled to trial by a jury of twelve. (Page 3) Cf 5a Moore's Federal Practice 2152 (2d ed. 1971). (page 4) See, eg. Devitt, The Six Man Jury in the Federal Courts, 53 f. R. O. 273, 277 n.5 (1971). 3 -12- e CRATIFICATE OF SERVICE: 55 LLOYD J. SKEDD, hiss ee SS hereby:certify that on this 2nd day of May, 1972, | served the foregoing Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit, by depositing full, true and correct copies thereof, in the United States mail, first class e hee Honorable James F. Battin US. District Judge for Montana Billings, Montana (1 copy) Attorneys at Law Electric Building, P.O. Box 2529 Billings, Montana 59101 (1 copy) Mr. Dale F. Galles Harwood, Galles, Gunderson & Beiswanger Attorneys at Law Electric Building Billings, Montana 59101 (1 copy) (attorneys for respondent) ur. L. Morris Ormseth Jardine, Stephenson, Blewett & Weaver Attorneys at Law . 700 First National Bank Building Great Falls, Montana 59403 (3 copies) ‘(attorneys for State Farm Automobile Insurance Company) * (3 copies} © --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0181%3A02. Public record. Not legal advice.