Motion — Colgrove v. Battin

67]

TABLE OF CONTENTS

miting The Size Of Civil Juries To Six

is Through Local Court Rule, The District

sal To Peeve The Common Law Jury A

i By The Seventh Amendment, Exceed

“Seem is a substantive right

there is a substantive difference between a

before a panel of six and a panel of twelve

(ii)

C. The District Court had no authority, to

promulgate a local rule eliminating the

defendant’s right to a trial before a jury of

ecient’ seutarsne LETS Ce ee, 16

D. The rule of Erie Railroad Co. v. Tompkins

requires that the federal courts honor

constitutional rights to a twelve man jury —

guaranteed by the State constitutions ............ 21

CONCTATSIOING os Fi ed re ee be ed 29

TABLE OF CITATIONS

Cases:

American Publishing Company v. Fisher, 166 U.S.

TE a oa is a a 9

Baldwin v. New York, 399 U.S.66(1970) ............. 13

Beacon Stores, Inc. v. Westover, 359 U.S. 500 (1959) ...... 14

Byrd v. Blue Ridge Rural Electric Cooperative, 356

RE ae Ie Ss ES Os Be passim

Capital Traction Co. v. Hof, 174 U.S. 1 (1899) ......... 9,23

Colgrove v. Battin, 456 F.2d 1379 (9th Cir. 1972)

cert. granted Oct. 10, 1972, 41 U.S.L.W.3166 ....... 2,19

Copp v. Henniker, 55 N.H. 179 (1875) ............. 23, 24

Daley v. Kennett, 75 N.H. 536, 78 A.123(1910) ........ 29

Davis v. Dyer, 62 N.Y. 231 (1882) .................. 29

Dice v. Akron C. & Y. R. Co., 342 U.S. 359 (1951) sige 2 + 18,25

Douglas v. United States Fidelity and Guaranty

Company, 81 N.H. 371, 127 A. 708 (1924) .......... 22

Duncan v. Louisiana, 391 U.S. 145 (1968) ........ 12, 13, 14

East Kingston v. Towle, 48 N.H. 64 (1868) ............ 23

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

(ti)

wn v, Riley, 94 N.H. 338, 53 A.2d 431 (1947) 20... 22

y. Plummer, 380 U.S, 460(1965)......... 20, 26,27

ry. Atlass, 363 U.S. 641 (1960) ..........-..... 3, 21

& St. LR. Co, v. Bambolis, 241 US. 211

(iv)

Other Authorities:

- Adm, Office of U.S. Courts, Annual Report 1971 ......

Augelli, Six Member Juries, 3 Seton Hall L. Rev. 281

0S EN EEE RSE SEE Ea

Note, The Effect of Jury Size on the Probability of

_ Conviction, 22 Case W. Res. L. Rev. 529 (1971) .....

Reducing the Size of Juries, 5 U. Mich. J. L. Reform

i ee ee

The Supreme Court, 1957 Term, 72 Harv. L. Rev. 77

Os A es

Zeisel, And Then There Were None: The Diminution

of the Federal Jury, 38 Chi. L. Rev. TID OST) nes ..

Zeisel, The Waning of the American Jury, 58 A.B.A.J.

NE a es

IN THE

ME COURT OF THE UNITED STATES

OCTOBER TERM, 1972

No. 71-1442

ROLAND V. COLGROVE,

Petitioner,

HONORABLE JAMES F. BATTIN,

United States District Judge

for the District of Montana,

Billings Division,

Respondent.

ION OF NOOTER CORPORATION FOR LEAVE

___ ‘TO FILE BRIEF AS AMICUS CURIAE

ter Corporation respectfully moves, pursuant to

le 42 of the Rules of this Court, that it be granted

e to file the accompanying brief in this case as amicus

support of its motion, the applicant Nooter

ration states:

2 , Rad act

at

ne

1. That the applicant has an interest in this case in

that it has now pending in the Court of Appeals for the

¥ bet Crouit 22. appeal tsom verdicts entered: against ig

the case of Wilson v. Nooter Corporation,* which case

was tried to a six-man jury in the District Court for the

District of New Hampshire. One of the - questions

presented by Nooter Corporation in that appeal is the

validity~ of a local rule whereunder the United States

District Court for the District of New Hampshire limited

the size of the jury to six persons. This is the same

question presented in the instant case with respect toa

local rule in the District of Montana.

2. That under the Constitution of The State of New

Hampshire, as construed by the New Hampshire Supreme

Court, the applicant would have been entitled to a jury of

twelve persons had the case of Wilson v. Nooter

Corporation been tried in the courts of the State of New

Hampshire.

3. That the applicant has reviewed the decision of the

Ninth Circuit in this case, 456 F.2d 1379 (9th Cir. 1972).

It has also reviewed the petitioner’s Petition for a Writ of

Certiorari and the Motion of International Association of

Insurance Counsel for Leave to File Brief as Amicus

Curiae. In substance, these indicate that the petitioner

and the above-named amicus curiae propose to argue that

a district court cannot by local rule restrict the size of the

civil jury to six persons because:

(a) Such a rule is prohibited by the Seventh

Amendment of the Constitution of the United States;

*Case No. 72-1308 on the docket of the F irst’ Circuit

Court of Appeals.

Such a rule exceeds the scope of the rule-making

ity of the district courts since it is a “basic

innovation” prohibited by Miner vy. Atlass,

} U.S. 641 (1960), is inconsistent with the Federal

1 Sid ciel Peosidian ho caetary wo the terms of

on the points discussed on the

veeding paragraph may be inadequate.

That, to the appellant’s best knowledge and belief,

‘party or amicus in this case will make the further

“@gument that such a local rule cannot apply in a

ersity case arising under state law where the parties

wld have a constitutional right to a twelve-man jury if

suit were tried in a state court.

6. That this Court’s decision in Byrd v. Blue Ridge

ctrical Cooperative, 356 U.S. 525 (1958) indicates

conflicts between state and federal jury policies are

be resolved by balancing the respective strengths of the

ipeting policies.

. That this Court should consider the extent to which

“its decision in this case may interfere with strong state

po icies and/or state constitutional rights.

“That the petitioner has consented to the filing of a

f by this applicant. A copy of his consent is enclosed

with. The respondent has refused to consent to the

“Tiling of the applicant’s brief, but has advised the

l= cant by telephone that he will not object to the

zant’s motion to file such a brief.

Respectfully submitted,

NOOTER CORPORATION

By Sulloway, Hollis, Godfrey

& Soden

By

Its Attorneys

pita al COURT OF THE UNITED STATES

OCTOBER TERM, 1972

No. 71-1442

RICHARD V. COLGROVE,

Petitioner,

HONORABLE JAMES F. BATTIN,

United States District Judge

for the District of Montana,

Billings Division,

Respondent.

CONSENT TO FILING OF AMICUS CURIAE BRIEF

The Petitioner, Richard V. Colgrove, hereby“vonsents,

pursuant to Rule 42 of the Supreme Court Rules, that

Nooter Corporation may file an amicus curiae brief in

this ee

Richard V. Colgrove

By Lloyd J. Skedd’

/s/

His Attorney

IN THE

EME COURT OF THE UNITED STATES

Bie ica OCTOBER TERM, 1972

No. 71-1442

,

RICHARD V. COLGROVE,

Petitioner,

"BRIEF OF NOOTER CORPORATION AS

a federal district ‘court. by. local. mle restrict the

the jury in a diversity case to six persons, despite

nh Amendment guarantees, statutory restrictions on

8 rule-making power, and a state constitutional

antee of a twelve person jury.

6

FACTUAL BACKGROUND RELATING TO

THE INTEREST OF AMICUS CURIAE

IN THIS CASE

The amicus curiae Nooter Corporation (herein Woot

has an interest in this case in that it has now pending in

the Court of Appeals for the First Circuit an appeal in the

case of Wilson v. Nooter Corporation* which was tried to

a six-man jury in the Federal District Court for the

District of New Hampshire. The case of Wilson v. Nooter

Corporation was a negligence action brought by a

workman (Wilson) against a subcontractor (Nooter) for

personal injuries sustained in an accident on a

construction site. The accident was allegedly caused by

the negligence of certain Nooter employees, including an

alleged “borrowed servant” who was the operator of a

crane owned by the general contractor but engaged at the

time of the accident in performing a task for Nooter.

After being sued by Wilson, Nooter brought a third-party

complaint against the general contractor, The H.K.

Ferguson Company (Ferguson), for indemnity on the

theory that the plaintiff's injuries were caused by

Ferguson’s failure to operate the crane in a careful and

workmanlike. manner. Under New Hampshire law, the

liability of Nooter to Wilson, the obligation of Ferguson

to indemnify Nooter, and the amount of Wilson’s

damages, present questions for the jury.

Prior to trial the District Court informed counsel that

it intended to impanel a six man jury in accordance with

its local rule. Counsel for Nooter and for Ferguson both

objected, but the Court proceeded to impanel a six man

jury. At the conclusion of the evidence the Court

*Case No. 72-1308 on the Docket of the First Circuit Court

of Appeals.

7

i a verdict in favor of the plaintiff Wilson against

ter, and in favor of the third-party defendant

Bearers, avers 94 ro Sabay, apace, Xp xenon

r d damages.

alread’ mentioned, Nooter has appealed the case to

st Circuit. Broadly stated, one of the questions to

ecided on that appeal is the same as that presented

decision in the instant case, that is, the validity of the

eee na aeednenehd

juries. For reasons set forth in this brief, Nooter agrees

=e the petitioner that such rules are generally invalid

eepee ne adopted da: any: District Court

r’s appeal to the First Circuit raises at least one

t additional issue which, to Nooter’s best

fnowledge and belief, has not and will not be raised

- eithe ‘by the parties or by the other amicus in this case.

"The issue in question exists because in New Hampshire

there is a strong and well established state constitutional

"requirement of a twelve-man jury. As a result, the local

— mile of the New Hampshire District Court presents an

_ obvious conflict with the state requirement and deprives

~iitig of a right which they enjoy under state law.

_Noot ’s interest in the recent case is to apprise this

ir that such a conflict can be presented by local rules

} the one under consideration here. Moreover, Nooter

es that when this Court examines the conflict in

stior it will decide that the District Court’s rule

ld yield to the state constitutional requirement of a

man jury.

8

SUMMARY OF ARGUMENT.

_ This case requires this Court to decide whether the

federal district courts can promulgate local rules which

limit the size of civil jury panels in diversity cases to six

persons. Nooter maintains in this brief (1) that by

impaneling six man juries the federal district courts fail to

provide common law jury trials as guaranteed by the

Seventh Amendment of the federal constitution; (2) that

there is a qualitative and substantive difference between a

trial before a jury of six persons and a jury of twelve; (3)

that Congress has not given the district courts authority

to promulgate local rules denying litigants their right to

a trial before a jury of twelve persons; and (4) that when

litigants have a state constitutional right to a twelve-man

jury, federal district courts must. honor. this right ina

diversity case arising under state law and tried to a jury.

ARGUMENT

BY LIMITING THE SIZE OF CIVIL JURIES TO SIX

© PERSONS THROUGH LOCAL COURT RULE, THE

©) DISTRICT COURTS FAIL TO PRESERVE THE

| COMMON LAW JURY AS REQUIRED BY THE

= (SEVENTH AMENDMENT, EXCEED THE SCOPE OF

“THEIR RULEMAKING AUTHORITY, AND DENY

- LITIGANTS SUBSTANTIVE STATE RIGHTS TO

‘WHICH THEY ARE ENTITLED UNDER THE

_ DOCTRINE OF ERIE RAILROAD CO. V.

3 - TOMPKINS.

‘Ain Suits at Common Law the Seventh

Amendment Requires that the District

Courts Preserve the Right to Trial by a

Twelve-Man Common Law Jury.

Until the recent decision of this Court in Williams y.

2 Plorida, 399 U.S. 78 (1970) it was considered a settled

- constitutional rule that a jury trial in civil or criminal

in the federal courts required a jury as

jown at common law, this is, a jury of twelve persons

whose unanimous action is necessary for a verdict or

coriviction. E.g. Capital Traction Co. v. Hof, 174 US. 1

(1899); American Publishing Company vy. Fisher, 166

S. 464 (1897); Thompson v. Utah, 170 U.S. 343

898). However, in Williams, supra, this Court upheld a

‘conviction obtained by the State of Florida before a jury

six persons who were impaneled pursuant to a Florida

‘statute providing for such juries in all but capital cases.

The Court in Williams held that the “impartial jury”

juaranteed by the Sixth Amendment “in all criminal

osecutions”, and the right to a jury trial in criminal

ss provided by Article III of the Constitution, do not

ire a twelve person panel.

10

In apparent reliance on the assumption that Williams

can and should be extrapolated to cover civil as well as

_ timinal juries, many federal district courts have enacted

local rules limiting the size of civil jury panels to six

persons. This case concerns such a rule which was

adopted by the Federal District Court for the District of

Montana, Billings Division. Local Rule 13(d)(1). This

amicus has pending in the First Curcuit Court of Appeals

an appeal based in part on the following similar local rule

of the District Court for the District of New Hampshire,

Rule 30. Impaneling Trial Jury

(a) Number of Jurors and Initial Selection

(1) In all civil cases, the jury shall consist of six

members and the clerk shall select by lot the names

of six persons to be drawn initially. (2) In all

criminal cases, the jury shall consist of twelve

members... .

By providing for six-man civil juries, the district courts

have plainly misread the Williams case and miscalculated

the extent to which that case changed the old rule insofar

as civil juries and the Seventh Amendment are concerned.

In point of fact, at footnote 30 of its opinion in Williams,

this Court expressly stated:

While much of our discussion in this case may be

thought to bear equally on the interpretation of the

Seventh Amendment’s jury trial provisions, we

emphasize 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 Amendment might support a different

interpretation. 399 U.S. at 92.

The . Williams case should not, then, be taken «as

authorization for the use of six-man juries in civil cases.

11

s' the footnote suggests, there is a critical distinction

‘the Sixth Amendment criminal jury and the

th Amendment civil jury. The Seventh Amendment

rovides: “In suits at common law ... the right of trial

: jury shall be preserved, and no fact tried by a jury . .

all be otherwise examined in any court ... than

i to the rules of the common law.” (emphasis

.) The Seventh Amendment refers twice to

mmmon law, and it further provides that the right to

ial by jury shall be ;

ie Sixth Amendment, on the other hand, provides

for an “impartial jury” in all criminal prosecutions.

contains no direct language making reference to

mon law standards, nor does it contain a requirement

at “trial by jury shall be preserved”. As the Williams

_ Opinion noted, these textual differences are explained by

the special history of the Sixth Amendment. Certain

“proposed drafts of the Sixth Amendment differed from

e final form of the Amendment in that they included

, requirements of “unanimity for conviction’

and “other accustomed requisites”. The Framers could

“Not agree that the criminal jury should be a pure common

law jury, and this Court apparently concluded in Williams

_that these requirements were deleted in final text of the

Amendment as the result of a compromise. 399

US. at 96. Their absence indicated to the Court that, in

‘the case of the Sixth Amendment, a pure common law

jury was not intended by the Framers.

~*... Where Congress wanted to leave no doubt that

2 it ‘was incorporating existing common law features

of the jury system, it knew how to use express

language to that effect.... And the Seventh

nendment, providing for jury trial in civil cases,

plicitly added that “no fact tried by a jury, shall

12

be neherenanrssenamnined Sey sary Cowst-of tht: Waite,

States, than according to NR RRNESi

law.” 399 U.S. at 97....

Thus, in holding the Sixth Amendment jury was note

pure common law jury, this Court emphasized that the

final draft of that Amendment was a compromise in

which certain references to common law requirements

were intentionally omitted. This peculiar history does not

affect the Seventh Amendment. Moreover, this history

makes the Seventh Amendment’s two references to

“common law’’ and its requirement that the right to trial

by. jury be. “preserved” seem especially significant when

compared with the bare requirement of an “impartial

jury”. in the Sixth Amendment. Since the Williams

decision relied in part on these textual differences

between the Amendments and specifically pointed out

that the Seventh Amendment illustrates that the Framers

knew how to incorporate common law features when

they wanted to do so, it indicates that the Seventh

Amendment, unlike the Sixth, requires a common law

jury. At the very least, when the foregoing is taken into

consideration together with footnote 30, it is plain that

this Court did not intend Williams to be taken as a license

authorizing federal district courts to promulgate rules

denying litigants their long-established Seventh Amend-

ment right. to twelve-man juries in civil cases. :

Another critical distinction between the Sixth and

Seventh Amendments is that in the context of the

criminal jury the incorporation doctrine placed this Court

under certain pressures not involved in the civil jury

context. In this regard it is significant that the, first

sentence of Section Il of the Williams decision, whfch

deals with the jury question, refers to the case of Duncan

' v, Louisiana, 391 U.S. 145 (1968). In Duncan it was held

13

- Sixth Amendment is incorporated in the

snth, and that for this reason state courts must

. Sixth Amendment jury “in all criminal cases

@ they to be tried in federal court—would come

ithin the Sixth Amendment’s guarantee.” Williams,

pra, 399 U.S. at 86. Asa result of Duncan, if the Sixth

ment required a twelve-man jury, such a jury

mild be required in state courts. This would have

idated local practices in many states which allow

‘eee Sixth Amendment standard. See Baldwin v.

ew York, 399 U.S. 66 (1970) involving the trial of

em in New York. Having decided Duncan

osin . the a tt Pit Rr but not

tir to disrupt existing practice unduly or to afflict

states with unmanageable new burdens, this Court

wed this dilemma in Williams by diluting the jury

ee of the Sixth Amendment. See Mr. Justice

1's dissent in Williams, 399 U.S. at 117.

Jocal rules under consideration here, like the state

edure under consideration in Williams, can present an

ortant problem because of the federal form of our

mment. The problem here presented is, however,

3 Williams in that the Seventh Amendment

intee of a jury in civil cases has never been

orated in the Fourteenth Amendment and is not

-on the states, which are at liberty to establish

own procedures for regulating civil trials in state

urts. Minneapolis & St. L.R. Co. v. Bambolis, 241 U.S.

1i (1916). As a result, unlike in the Sixth Amendment

text, no damage is done to existing state practice if it

that the Seventh Amendment requires a twelve-

ry. On the contrary, as we shall see subsequently,

cant damage to state practice will occur if the

14

federal district. courts are allowed, in effect, to rewrite

the Seventh Amendment and to provide jury panels of

only six persons in civil cases. It is.a strange irony that

the district courts appear to be relying on Williams, which

was | intended to. harmonize federal rights with state

practice, when they promulgate local federal rules which

can serve to frustrate the fundamental state right to a

twelve-man jury panel. Instead of authorizing the local

rules under consideration here, if anything . Williams

indicates that this Court has adopted a philosophy of

federalism which is incompatible with the rules in

question.

‘B. The Right to a Jury Trial Is a Substantive

Right and There Is a Substantive Difference

Between a Trial Before a Panel of Six and a

A host of decisions by this Court, involving a variety of

different factual situations and legal issues, makes it

perfectly plain that the right to a jury trial is a

fundamental and substantial right which will be zealously

protected by this Court’s policy favoring jury trials. See,

e.g., Byrd.v. Blue Ridge Rural Electric Cooperative, 356

U.S..525 (1958); Beacon Stores, Inc. v. Westover, 359

U.S. 500. (1959); Simler v. Conner, 372 U.S. 221 (1963);

Duncan v: Louisiana, 391 U.S. 145-(1968). If the right to

a jury trial is so important, it logically follows that the

right is lost if.a trial is held before. some fact finder

qualitatively. different from ‘the traditional jury. In

Williams, the Court indicated that in order to fulfill the

qualitative requirements for the Sixth Amendment jury,

the number of jurors would have to be large enough “to

promote group deliberation, free from outside attempts

of intimidation, and to. provide a fair possibility for

obtaining a representative cross section of the com-

f

,

15

ty”’.. 399 U.S. at. 100. tpn Aocuntta eckson that the

nan jury was adequate for Sixth Amendment

2s rested in part on its conclusion that six persons

perform these functions as well as twelve, that

re is no. discernible difference between the results

ed by the two different-sized juries”. 399 U.S. at

the period since Williams, commentators have

ined this conclusion and found it erroneous. First,

yy have examined the authorities and “experiments”

hich the Court cited to support the view that the size of

> jury does not materially affect the outcome of

gation. See footnote 48 of the Court’s opinion in

7 .. Analysis of the authorities cited by the Court

als that none contain a serious empirical study of the

sequences of changing the size of the juty. Instead,

Gaemeley are at best based on the impressions of

a of the Atmericat acy, 58 A.B.A.J. 367

2); Note, The Effect of Jury Size on the Probability

urt’ depended upon unreliable studies. By using

tistical analysis they also show that, contrary to the

rt’s conclusion in Williams, reducing the size of the

- panel significantly reduces the capacity of the jury

‘represent minority viewpoints in the community. (A

inority group comprising 10% of the population would

16

receive representation on 72% of twelve man jury panels,

but only on 47% of six man jury panels.) In civil cases

this reduction in the representative character of the jury

_ will mean that wider variations of verdicts will be

returned when a six-man jury is used than when a twelve-

man jury is used. In lawyer’s terms, this means that the

six-man jury is the “gambler’s” jury. If the state court

provides a twelve-man jury, and the federal court a six-

man jury, the federal court becomes the place to go fora

longshot verdict or to exclude minority groups from the

panel. Zeisel, 38 Chi. L. Rev. at 715-19; also see Note, 22

Case W. Res. L. Rev. at 547 discussing the differences in

conviction probability before different sized juries.

Thus, statistical-studies of the significance of reducing

the size of the jury from twelve to six illustrate that the

smaller jury will return results different in character from

those returned by the full twelve-man jury. The change

accomplished by the various district court rules under

consideration here is, then, a fundamental and substantial

one which could create a basis for forum shopping.

Whatever the court may have concluded in Williams,

these rules certainly result in a discernible change in the

kind of justice received by civil litigants in federal court.

_C. The District Court Had No Authority to

_. Promulgate a Local Rule Eliminating the

Defendant’s Right to a Trial Before a Jury

Under the authority of Article 1, Section 8 of the

tion the Congress has authorized the district

“prescribe rules. for the conduct of their

but has required that such local rules be

istent with Acts of Congress and the rules of practite

and procedure prescribed by the Supreme Court. 28

$2071. The Congress has also authorized this

‘to prescribe. general rules of “practice and

re” in 28 U.S.C. § 2072. The latter act, known as

bling Act, is the one pursuant to which this Court

ated the Federal Rules of Civil Procedure.

ral Rule 83 also limits the rule-making authority of

rict courts by prohibiting the district courts from

rules inconsistent with the Federal Rules.

Enabling Act, as we shall see, imposes significant

ctions on the extent of this Court’s rule-making

r. Surely the federal district courts under their

ratively narrow grant authority to “‘prescribe rules

» the conduct of their business”, as limited by the

it itions of 28 U.S.C. §2071 and Federal Rule 83,

innot seat greater rule-making authority than that

ferred by the Enabling Act. Moreover, the restrictions

tail ined in the Act and the provisions of the Federal

ss of Civil Procedure make it perfectly plain that the

deral district courts lack authority to provide for

os jury trials by local rule.

< oe three paragraphs of the Enabling Act provide

pertinent part as follows: _ |

$2072. Rules of Civil Procedure

“The Supreme Court shall have the power to

cribe, by general rules ... the practice and

cedure of the district courts ... in civil actions.

ch rules shall not abridge, enlarge or modify any

stantive right and shall preserve the right of trial

jury as at common law and as declared by the

enth Amendment to the Constitution.

ch rules shall not take effect until they have been

orted to Congress by the Chief Justice at or after

_ beginning of a regular session thereof but not

later than the first day of May, and until the

expiration of ninety days after they have been thus

_ The first two paragraphs of the Act are direct and

unambiguous in what they allow and what they prohibit,

The first paragraph allows this Court to regulate “practice

and procedure” in the district courts. The second

paragraph, to emphasize that the rule-making authority

granted under the Act is procedural only, prohibits this

Court from doing certain things under the guise of

regulating procedure. First, the initial clause of the

second paragraph of the Act prohibits the Court from

abridging or modifying the substantive rights of litigants.

As we have seen, the right to a trial by jury has been

zealously protected by this Court whenever it has been

thought to exist. It is a right guaranteed by the Federal

tion and by the constitutions of most if not all

of our states. It is fair to say that it is a “basic and

fundamental feature of our system of federal juris-

prudence.” Dice v. Akron, C. & Y. R. Co., 342 US. 359

(1951). As such, surely it must qualify as a substantive

right within the meaning of the Enabling Act, and the

first clause of the second paragraph of the Act, standing

alone, should prohibit the abridgment, modification or

elimination of this right by mere court rule.

The second clause of the second paragraph of the

Enabling Act goes further in defining what the Supreme

Court cannot do under its authority to regulate ‘practice

and procedure.” It states that any rule promulgated by

the Court “shall preserve the right of jury trial as at

common law and as declared by the Seventh Amend-

ment,” (emphasis added). Thus, the Enabling ‘Act

represents precisely the kind of legislation to which the

Court referred in Williams to show that “where

19

ss wanted to leave no doubt that it was incor-

g existing common law features of the jury

knew how to use ee to that

: soos of the Enabling Act forbids rules of

| which would fail to preserve the common law jury,

would abridge or modify litigants’ substantive

Ninth Circuit held in the instant case that the

» construction of the second clause of the second

ph of the Enabling Act is incorrect, and that the

¢ of this clause is to preserve the right to a jury

n those cases in which the right existed at common

Colgrove v, Battin, 456 F.2d 1379, 1381 (9th Cir.

cert. granted October 10, 1972, 41 U.S.L.W.

The plain answer to this argument is that the

1g Act does not say so and it could have said so

is been the intended meaning. Mere reference to

yenth Amendment would have accomplished that

it, but the statute goes further, adding the clause

shall preserve the right of trial by jury as at

n law.” If this clause is to have any meaning at all,

t mean that the basic common law incidents of a

re to be preserved, whatever restrictive interpreta-

ight be placed on the Seventh Amendment.

‘conclusion that the district courts lack authority

m te local rules like Rule 30 of the New

hit so tH Court is also required by the fact that

the ity to make local rules like the one in issue

‘regulated by Rule 83 F.R. Civ. P.. This rule only

_the district court to make “‘rules governing its

20

practice not inconsistent with . .. [the Federal Rules of

Civil Procedure}’’. Yet local Rule 30 in question here is

blatently inconsistent with the Federal Rules.

First, it is inconsistent with Rule 48, F.R. Civ. P,

which expressly provides that the parties may stipulate

that the jury “shall consist of any number less than

twelve.” Rule. 48 would specifically authorize the parties

to specify a jury of more than six (but less than twelve),

yet local Rule 30 would preclude such a stipulation.

Consequently, Rule 48 and local Rule 30 are inconsistent

in precisely the way Rule 83 forbids. Local Rule 30 must,

then, be invalid. Local Rule 30 is also plainly inconsistent

with Rule 38(a) F.R. Civ. P., which provides that “the

right of trial by jury as declared by the Seventh

Amendment ... or as given by any statute of the United

States shall be preserved to the parties inviolate.” Since

this Court has never indicated that anything less than a

twelve-man jury will satisfy the Seventh Amendment, and

since the Enabling Act forbids court rules abridging or

modifying substantive rights and requires that the

common law jury be preserved, local Rule 30 is plainly

inconsistent with rights which Federal Rule 38(a)

preserved “to the parties inviolate”. Again, it cannot

stand in the face of the limitation on local rule-making

authority contained in Rule 83.

A final reason why this Court should hold that the

district court had no authority to promulgate’ local Rule

30 is that such a Rule results in a lack of uniformity

within the federal system and an unstudied major change

in practice. The Court has held that “One of the shaping

purposes of the Federal Rules is to bring about

uniformity in the federal courts by getting away from

| ” Hanna v. Plummer, 380 U.S. 460, 472

held that the rule-making powers are

E

=

F

21

igned to insure that procedural innovations not be

de at the local level, but instead that they “shall be

oduced only after mature consideration of informed

hion from all relevant quarters, with all the

jortunities for comprehensive and integrated treat-

nt which such consideration affords.” Miner v. Atlass,

S. 641, 650 (1960). Finally, the Court has held

‘ormity of practice is demanded by the Seventh

dment. Simler v. Conner, 372 U.S. 221, 222

). Plainly, if the size of the jury can be determined

e particular whim of a district court judge, the right

arti sized jury can vary from district to-district

fom time to time. This can hardly have been

i by Congress when it passed the Enabling Act

ich requires in paragraph two that the right to jury

Ii be preserved, and in paragraph three that changes in

jes shall be reported to Congress for review.

. The rule of Erie Railroad Co. v. Tompkins

requires that the federal courts honor consti-

tutional rights to a twelve-man jury guaranteed

by the State constitutions.

» doctrine of Erie Railroad Co. v. Tompkins, 304

5. 64 (1938), requires the federal courts in diversity

es to apply state rules of substantive law. The instant

is a diversity case in which the Erie rule applies. The

Wilson v. Nooter Corporation, tried in the District

ourt for the District of New Hampshire and presently

nding in the First Circuit, was also a diversity case.

‘ce Wilson v. Nooter Corporation dramatically

es. the Erie problem which can be presented by

nd of local rule under consideration here, this

of this brief will discuss the problem ‘with

22

particular reference to that case. As we shall see, the

principles of Erie, as elaborated by subsequent decisions

of this Court, require that in cases like Wilson v. Nooter

Corporation the federal courts must honor state con-

stitutional guarantees of a twelve-man jury.

- If Wilson v. Nooter Corporation had been tried in the

New Hampshire state courts, plainly the parties would

have been entitled to the protection of the Constitution

of The State of New Hampshire which provides in Part I,

Article 20 that “‘the parties have a right to a trial by jury

and this method of procedure shall be held sacred. ...”

The New Hampshire Supreme Court has ruled that this

guarantee of a jury trial in civil matters “‘is determined

generally by the historical test of its use at common law,”

Hallahan yv. Riley, 94 N.H. 338, 339, 53 A.2d 431

(1947), and that “the extent of the right to trial by jury

is settled by ascertaining how it was used and practiced

before 1784.” Douglas v. United States Fidelity and

Guaranty Company, 81 N.H. 371, 374, 127 A. 708

(1924). Furthermore, the New Hampshire Supreme Court

has specifically held that usage at common law required a

twelve-man jury.

_ "We regard it as a well settled and unquestionable

‘tule of construction that the language used by the

‘legislature, in the statutes enacted by them, and that ©

23

A jury for the trial of a cause was a body of

yelve men, described as upright, well qualified and

Jawful men, disinterested and impartial, not of kin,

nor personal dependents of either of the parties,

a their homes within the jurisdictional limits of

‘the court, drawn and selected by officers free from

‘ bias in favor or against either party, duly

smpaneled under the direction of a competent court,

‘sworn to render a true verdict according to the law

and the evidence given them; who, after hearing the

arties and their evidence, and receiving the instruc-

of the court relative to the law involved in the

, and deliberating, when necessary, apart ffom

extraneous influences, must return their unani-

“mous verdict upon the issue submitted to them.

Opinion of the Justices, 41 N.H. 550, 551 (1860),

noted with approval in Capital Traction Co. v. Hof,

14.U.S. 1 (1899). :

| again:

The trial by jury, secured to the subject by the

stitution, is a trial according to the course of the

amon law, and the same in substance as that

which was in use when the constitution was

framed.” East Kingston v. Towle, 48 N.H. 64...:A-

tute might be passed calling eleven men a jury,

| declaring that a jury should consist of eleven.

n and no more, or that, if eleven out of twelve

ors could agree, they might return a verdict; but

h a statute would be an infringement of the

nstitutional right of trial by jury, because such a

rial must be “according to the course of the

non law, and the same in substance as that

ich was in use when the constitution was

med;” and a trial by a jury of eleven men, or a

i with the verdict given by eleven men out of

e, would not be a trial “‘according to the course

common law’, and would not be “the same

24

in substance as that which was in use when the

constitution was framed.’’ Copp v. Henniker, 55

N.H. 179, 193 (1875).

Thus, in New Hampshire it is clear that the

constitution requires a twelve-man jury in civil cases. Any

reduction in that number would constitute a substantive

change inthe right to trial by jury and would be

prohibited by the state constitution. If, contrary to the

various arguments advanced in earlier sections of this

brief; this Court should find that district court rules can

establish six-man juries in some states, this does not mean

they can do so in a state like New Hampshire where there

is a solidly established constitutional right to a

The leading case dealing with the question of the

relation of the Erie rule to the right of trial by jury is

Byrd v. Blue Ridge Electrical Cooperative, 356 US. 525

(1958). Byrd presented a question regarding the status of

the plaintiff as an employee under the South Carolina

Workmen’s Compensation Statute. Under the applicable

state rule, this question was one for the judge. However,

in Byrd the Court held that the state rule should not be

followed in the federal district court, but that instead the.

issue should be referred to the jury. In reaching its

decision the Court indicated that determining whether to

sega 2 toga aaa, Seo The Supreme Cot

25

stive that the litigation should not come out one way

» federal court and another way in the state court.”

'd the Court found that South Carolina had never

‘any reason for its rule that the judge should decide

we of statutory employment. Jd. at 535. This rule

then an “integral part” of the state created right.

e Court found that there is a “strong federal

‘Policy against allowing state rules to disrupt the

jge-jury relationship in the*federal courts.” Jd. at 538.

ce there was no significant state policy but a strong

iling federal policy, and since there was no

y that there would be a difference in outcome if

deral policy were followed instead of the state rule,

d court held that the federal rule should prevail.

state and federal policies. The same basic

was also followed by the Court in the case of

Akron C. & Y. R. Co., 342 U.S. 359 (1951), cited

The Dice case involved the question of whether

dance with state practice an Ohio courtycould

é question of fraud in the obtaining of a release

.E.L.A. case, or whether the matter had to be

to a jury. The court held that the right to a jury

“too substantial a part”’ of the federally created

s, Dice as well as Byrd recognizes that strong

cies favoring jury trials should yield to procedural

26

Certain cases may be cited for the proposition that the

federal courts are bound to follow federal and not state

jury practice. Among the cases which might be cited are

Herron v. Southern Pacific Co., 283 U.S. 91 (1931), and

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

establish, however, is that in federal court. federal rules

determine whether a matter is to be decided by the judge

or by the jury. They hold that the special relationship

between judge and jury in federal court isa matter to be

determined by federal law, that ‘‘the function of the trial

judge in a Federal court is not in any sense a local matter.

...” Herron, supra, 283 U.S. at 94. These cases should

not prevent this Court from holding that federal district

courts must respect a state constitutional rule relating

only to the number of jurors, if the state rule does not

interfere with the allocation of function between judge

and jury and does not disrupt federal practice. These

cases are consistent with Byrd and do not create an

inflexible rule that federal jury practice is to b

determined without regard to the respective strengths of

conflicting state and federal policies.

It should also be noted that the case of Hanna y.

Plummer, 380 U.S. 460 (1965), does not establish a strict

rule requiring this Court to uphold the rule of the local

district court. In Hanna, it was held that Rule 4(4)(1)

ER. Civ. P., which. authorizes service of process at the

_ abode:of the defendant, controls in federal court even if a

‘state statute would require service in hand. The Hanna

case is distinguished from the problem presented by this

appeal first because Hanna involved a conflict between

one of the Federal Rules of Civil Procedure and a state

rule which was plainly procedural in nature, wheregs this

case involves a conflict between a local rule of d federal

district court and a state constitutional right. Another

27

lant distinction between the two cases is that in

the court found that “the difference between the

s would be of scant, if any, relevance to the

f a forum.” 380 U.S. at 469. Although in Hanna

peting state and federal rules were outcome-

E inative in the strict sense since the case would have

Seen dismissed if compliance with the state rule had been

equired, the Court found it more important that the

fing rules were essentially “housekeeping” rules.

result, following the federal rule would mechanically

“the way in which process was served,” id., but it

not affect the character of justice received by the

Erie problem illustrated by Wilson v. Nooter

oration is entirely different. The conflict in question

‘Bnot between “housekeeping” rules. As we have seen,

‘the representational quality of the jury is significantly

hanged by the local rule in question. Litigants seeking to

ude minority groups or hoping to obtain longshot

can now be expected to opt for the federal court

. fe their chances of achieving these goals are

ificantly better than in state court. The effect will

> downgrade the quality of justice received in the

al courts, to create an improper basis of forum

_ and to frustrate important state constitutional

7 . Surely this result is not appropriate unless

he substantial countervailing purpose is served.

ssuming then that the balancing test set forth in Byrd

vides the appropriate way of resolving the Erie

™ by the case Wilson v. Nooter Corporation, there

i demshk dake tint tlin-the Selene dead be

ie favor of following the state practice. Consider

the state side of the balance sheet. A twelve-man

28

jury is a constitutional right in New Hampshire, and New

Hampshire case law establishes that a reduction in size

even to eleven men would be an unconstitutional

substantive change in the jury. Moreover, the change toa

six-man panel significantly detracts from the representa-

tional capacity of the panel and changes the nature of

verdicts returned. The right to a trial before a jury of

twelve is then an integral part of litigants’ rights in this

kind of case under New Hampshire law.

On the federal side of the balance sheet, the policies

favoring a six-man jury are not strong. The reasons given

for the rule include the argument that it would eliminate

congestion on the court docket, see Reducing the Size of

Juries, 5 U. Mich. J.L. Reform 87 (1971), and that the

smaller jury would entail less administrative expense and

inconvenience than the twelve-man jury. See Augelli, Six

Member Juries, 3 Seton Hall L. Rev. 281, 287 (1972).

“A study of the docket of the District Court for New

Hampshire exposes. the weakness of the first argument.

The 1971 Annual Report of the Director, Administrative

Office of the United States, shows that of the 217 cases

on the court’s docket as of June 30, 1971, 141 or 65%

had been on the docket less than one year, and, of the

remaining cases, 50 had been on the docket less than two

years. Table C 6a, p. A22. Local Rule 30 of the Federal

: paver ost lk ponicela did not

become ( e until September 1, 1971. in the

te eigen date of Local Rule 30,

federal Toe ‘court in New Hampshire jurors are

examined on voit dire as a group by the judge.eAs a

result, it is hard to see how reducing the size of the jury

will significantly speed up trials. On the question of

2, jury expense is not a significant fraction of the

I judicial budget. Zeisel, The Waning of. the

Jury, 58 A.B.A.J. 367, 370 (1971). Further-

¢ Annual Report mentioned above shows there

ily twelve completed civil jury trials in the New

hire district court during the fiscal year 1970-71.

7, p. A26. Certainly the expense of empaneling

nan juries for these few trials cannot create a

budgeting problem.

us, in the case of Wilson-y. Nooter Corporation the

ct court’s local rule eliminates a state constitutional

‘Tight which is an integral part of the right to jury trial in

‘this kind of case at state law. It does so for no significant

ng either of federal judicial time or money. Under

Hampshire law, ‘tmere inconvenience is not a reason’

efusing a jury trial in cases where the right is

anteed by the constitution.” Davis v. Dyer, 62 N.H.

» 239 (1882), Daley v. Kennett, 75 N.H. 536, 540, 78

3 (1910). Under these circumstances it is clear that

: peal rule should yield to state policy under the

n uples set forth by this Court in the Byrd case.

mea

eg

Mae

pe ada

oa

CONCLUSION

‘or the foregoing reasons Nooter Corporation

tectfully prays that this Court rule as follows on this

a) That the Court reverse the decision of the Ninth

fcuit in the instant case and remand the case to the

mth Circuit with instructions to issue the writ of

ndamus requested by the petitioner; or

30

(b) If the Court decides to affirm the decision of

the Ninth Circuit, that the Court make clear in its

decision that local rules of the kind considered here

should not be applied in diversity cases where there is a

strong state constitutional right to a twelve-man jury;

Fas ie A

(c) If the Court decides to affirm the decision of

‘the Ninth Circuit, but is unwilling to rule as requested

in the preceding paragraph, that the Court expressly

reserve this question for consideration in a case in

which it is directly raised.

Respectfully submitted,

Nooter Corporation

By Sulloway Hollis Godfrey

& Soden

By /s/ John C. Ransmeier

JOHN C. RANSMEIER

Its Attorneys