Brief for Respondent — Colgrove v. Battin

An the Supreme Court

United States

October Term 1972

No. 71-1442

ROLAND V. COLGROVE,

Petitioner,

vs.

AMES F. BATTIN, UNITED STATES

ISTRICT JUDGE FOR THE

DISTRICT OF MONTANA,

Respondent.

Brief of Respondent on Writ of Certiorari

To the United States Court of

For the Ninth Circuit

Petition for Certiorari Filed May 4, 1972

Certiorari Granted October 10, 1972

CALE CROWLEY

P. O. Box 2529

Billings, Montana 59103

Attorney for Respondent

a f Counsel for Respondent:

Harwood, Galles, Gunderson

Beiswanger

400 Electric Building

Billings, Montana 59101

vibe

INDEX

TABLE OF CONTENTS

QUESTION PRESENTED

_§TATEMENT OF POSITION

LANGUAGE OF OUR UNITED STATES

CONSTITUTION AND ITS

HISTORICAL BACKGROUND

SIGNIFICANT CASES WHICH HAVE

CONSTRUED THE SEVENTH

-AMENDMENT

PLACING WILLIAMS-STATE OF

- FLORIDA IN ITS PROPER

PERSPECTIVE

_ RULE 48 F.R.C.P. DOES NOT CONTROL .... 14

_ CONCLUSION

_ UNITED STATES SUPREME COURT CASES

_ Apodaca v. Oregon, May 22, 1972, 406 U.S. 404,

— 92 8.Ct. , 32 L.Ed.(2) 184 11

- Baltimore and Carolina Line, Inc., vs. Redm

"1935, 295 U.S. 654, $5 8.Ct. 890,79 L.Ed. 1636 (11

- Capitol Traction Co. v. Hof, 1899, 174 U.S. 1,

-

§.Ct. 580, 43 L.Ed. 873 16

_ Duncan v. State of erg oe A 1968, 391

U.S. 145, 88 S.Ct. 1444, 2d 491;

> feh. den. 392 U.S. 947, 88A S.Ct. 2270,

20 L.Ed.2d 1412

a

Ex Parte Peterson, 253 U.S. 300, 40 S.Ct. 543

64 L.Ed. 919

Galloway v. United States, 319 U.S. 372, 63

$.Ct. 1077, 87 L.Ed. 1458

Hanna v. Plumber, Mass., 1965, 380 U.S. 460 at

- 472, 85 S.Ct. 1136 at 1144, 14 1. Bd2d 8 .........-:....

Johnson v. Louisiana, oe 22, 1972, 406 U.S.

356, 92 S.St. ........ , 32 L.Ed.(2) 152

Miner v. Atlass, 1960, 363 U.S. 641, 80 S.Ct.

1300, 4 L.Ed.2d 1462

Patton v. United States, 1930, 281 U.S. 276,

50 S.Ct. 253, 74 L.Ed. 584

Ross v, Bernhard 1970, 396 U.S. 531, 90 S.Ct.

Mie Lee fe?

Williams v. State of ge ng gg 22, 1970,

399 U.S. 78, 90 S.Ct. 1893,

L.Ed.2d 446 3:12, 19, 1%,

CIRCUIT COURT CASES

Byrne v. Matczak, 3rd C.C., 1958, 254 F.2d

525, cert. den. 358 U.S. 816, 79 S.Ct.

24, 3 L.Ed.2d 58 <.....2....----5

Conley ¥. Strickland Transport Co., 5th C.C.

E

16

anc, April 1, 1972, 459 F.2d 779 ...........-...- 11, 15

Fox v. United States, Sth C.C., 1969,

417 F.2d 84 :

: - iii -

MONTANA DISTRICT COURT RULES

Page

Rule 13(4)(1)

"FEDERAL RULES OF CIVIL PROCEDURE

48(a) F.R.C.P. 15

48 F.R.C.P. ¥ 14

8 FRCP. 14

FEDERAL RULES OF

CRIMINAL PROCEDURE

23(b) F.R.Crim.P. 15

UNITED STATES CONSTITUTION

_ Article I (8) (Clause 9, 18) | 5, 6

- Article III, Par. 1 5, 6

| Sixth Amendment 7

: Seventh Amendment 8

In the Supreme Court

United States

October Term 1972

No. 71-1442

ROLAND V. COLGROVE,

Petitioner,

vs.

_ JAMES F. BATTIN, UNITED STATES

ISTRICT JUDGE FOR THE

alameda oF MONTANA,

Respondent.

Brief of on Writ of Certiorari

: To the United States Cont of Aeron

For the Ninth Circuit

| QUESTION PRESENTED

__. The District Court of the United States for the Dis-

trict of Montana promulgated its district court Rule

3(d)( 1) prescribing a jury of six persons for the trial

civil cases, which rule became effective September 1,

2

Petitioner requested a mandate from the Ninth

Circuit Court declaring the rule void and invalid as an

invasion of 2 federal constitutional guarantee to a jury

of twelve persons in civil actions. The Ninth Circuit

Court in a written opinion reported at 456 F(2) 1379

denied the request, and upheld the constitutional vali-

dity of the district court rule. Petitioner petitioned for

a Writ of Certiorari to review the judgment of the

Ninth Circuit Court which this court granted on Oc-

tober 10, 1972. Accordingly, the question presented is

the constitutional validity of a rule promulgated by a

District Court of the United States prescribing a jury

of six persons for the trial of civil cases.

STATEMENT OF POSITION

Neither the federal Constitution, nor any federal

statute, nor any rule of Federal Civil Procedure, nor

any rule of the Supreme Court of the United States

spells out a requirement that a jury in a civil action

shall consist of twelve persons, nor prevents nor pre-

cludes a district court from promulgating a. tule of

procedure requiring a jury of six persons in such cases.

When the constitutional language of the Seventh

Amendment is placed in its proper perspective in light

of the historical background in which the first seven

Articles of our Constitution were promulgated at the

First Constitutional Convention, and in light of the his-

torical background in which Amendments 6 and 7 were

Pd

3

nulgated by the First Congress; when we give prop-

and adequate consideration to the language of those

' decisions ot the Supreme Court of the United States

_ which have construed the scope of the Seventh Amend-

3 ment in other areas; and when the language of the Con-

"stitution, its historical background, and the language

of the decisions of our Supreme Court which have con-

strued the scope of the’ Seventh Amendment are all

- placed in proper perspective with the decision of this

court in Williams v. State of Florida, June 22, 1970,

399, U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446, the rule of

_ the District Court of the United States for the District

of Montana prescribing a six-man jury in civil cases is

_ avalid and subsisting rule of procedure, and the decision

of the Ninth Circuit Court should be affirmed.

LANGUAGE OF OUR

%. UNITED STATES CONSTITUTION

AND ITS HISTORICAL BACKGROUND

We do not have available locally the debates of

_ the original constitutional convention, We do have,

however, the writings of numerous historians and, in

" particular, the Federalist Papers published by Alex-

_ ander Hamilton. Hamilton's Federalist Paper 83, pub-

lished May 28, 1788, confirms the other historians we

e read that the provision for trial by jury in crimi-

il cases was considered a burning necessity, and that

was also considered desirable to have trial by jury in

4

civil cases as an excellent method of determining ques-

tions of property under proper regulation (Lodge’s Fed-

eralist, page 521). The great difference in jury prac-

_ tice among the several states made promulgation of a

proviso that was satisfactory to all concerned an ex-

tremely difficult matter. A proposal was made by

Pennsylvania that “trial by jury shall be as heretofore”;

and by Massachusetts for trial by jury in actions. at

common law “if the parties requested it”. Both were

defeated. We understand that two modifications were

proposed when the Committee on Style submitted its

final draft to the convention on September 12, 1787, one

of which was a specific provision for jury trials in civil

cases. It was neither accepted nor rejected, but was

returned to the Committee on Style to provide such a

clause for consideration. The historians indicate that

the failure to include any proviso thereafter in the or-

iginal seven articles of the Constitution was not because

of any disagreement concerning its advisibility, but be-

cause (1) the delegates were then ready to go home;

(2) the difficulties in drafting a general rule that would

satisfy all states because of the variety of court prac-

tices in the different states; (3) there was some fear

among convention leaders that prolonged and pro-

tracted dispute and debate over the issue might yery

well devastate the agreement that had already been 4r-

rived at; (4) ‘the delegates had fulfilled the burning

necessity for preserving the right of jury trial in all

i 4

<

5

linal cases; and (5) last, but not least, the responsi-

delegates felt that there was no danger in leaving

drafting and determination with respect to civil

cases for Congress to promulgate in the future under

je powers vested in Congress in Article I (8) along

with the judicial powers vested in such inferior courts

; might be created by Congress from time to time as

# provided in Article Ill.’ Article I (8) provides that

~~ Congress shall have power:

To constitute tribunals inferior to the Supreme

. Court. (Clause 9)

i _ Article IIL, paragraph 1, vests judicial power in

& —. Supreme Court of the United States:

“and such inferior courts as the Con ngress may

from time to time ordain and establish.

oils IIT likewise expressly provides that “the trial

# - of all crimes, except in cases of impeachment, shall be

b. by jury;***”. ¥

We find additionally significant to our problem

Necessary and Proper Clause of Article I (8) which

‘power in Congress: |

“To make all laws which shall be necessary and

_ proper for carrying into execution the foregoing

powers, and all other powers vested by this Con-

stitution and the government of the United States,

ft 1)" any department or officer thereof.” (Clause

ne of the foregoing bigure of the original seven

les of the original Constitution has ever been al-

d, changed, nor disturbed in any manner.

6

Federalist Paper 83 by Alexander Hamilton was

published May 28, 1788, between adjournment of the

original convention and the convening of the First Con-

gress pointing out that the most severe criticism of the

first seven articles of the original Constitution heard

in New York, and perhaps on all other states, was “rel-

ative to the want of the constitutional provision for the

trial by jury in civil cases.” Many persons feared that

by the failure of the Constitution to include such a pro-

vision, it was abolished. Hamilton tried to allay such

fears in Paper 83.

“A power to constitute courts is a power to pre-

scribe the mode of trial; and consequently, if noth-

ing was said in the Constitution on the subject of

juries, the legislature would be at liberty either to

adopt that institution or to let it alone. * * *” (Pp.

518, Lodge; Pp. 357, Beard)

We add in addition to the power granted to constitute

the courts. the supplementary power vésted in Congress

* by the “Necessary and Proper” Clause 18 of Article I

(8) coupled with the express vesting of judicial power

_by Article ITI in all cases in law or-equity in such in-

ferior courts as the Congress may from time; to time

ordain and establish. Hamilton also stated:

“The best judges of the matter will be the least

anxious for a constitutional establishment of the

trial by jury in civil cases, and will be the most

ready to admit that the changes which are continu-

~ happening in the affairs of society may render

a different mode of determining questions of prop-

erty preferable in many cases in which that mode

of trial now prevails. * * * It is conceded by all

reasonable men that it ought not to obtain in all

cases. The examples of innovations which con-

tract its ancient limits, as well in these states as in

Great Britain, afford a strong presumption that its

ae former extent has been found inconvenient, and

© give room to suppose that future experience may

ey - the propriety and utility of other excep-

tions, I suspect it to be impossible in the nature

of the thing to fix the salutatory point at which the

Operation of the institution ought to stop, and this

__ is with me a strong argument for leaving the mat-

ter to the discretion of the legislature.” ( Lodge,

Pp. 531-532)

“ It seems historically clear that the delegates de-

"sired to preserve the right of trial by jury in both civil

"and criminal cases; but a plan that would define the

precise consistency of juries that would satisfy all dele-

: gates, and all states, could not be drawn up. For that

feason, the Constitution required that the right of trial

" by jury be preserved, but the plan for the consistency

_ of juries was left to the Congress to legislate from time

_ to time as needs might require.

3 The omission of any language in Amendments 6

and 7 adopted by the First Congress in 1789 which

“would spel! out or prescribe the number of jurors

-earries great significance when viewed in the light of

that historical background.

8 “AMENDMENT 6

In all criminal prosecutions the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the state and district wherein the

crime shall have been committed, which district

shall have been previously ascertained by law, and

Lett

to be informed of the nature and cause of the ac-

cusation; to be confronted with the witnesses against

him; to have compulsory process for obtaining

witnesses in his favor, and to have the assistance of

counsel for his defense.”

“AMENDMENT 7

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 shall be otherwise re-examined in any court

of the United States than according to the rules of

the common law.”

: SIGNIFICANT CASES WHICH HAVE

CONSTRUED THE SEVENTH AMENDMENT

The language of Supreme Court decisions which

have construed the scope of the Seventh Amendment

in other areas is significant.

In an opinion by Justice Brandeis in Ex Parte

Peterson, 1920, 253 U.S. 300, 40 S.Ct. 543, 64 L.Ed. 919,

it was said with respect to the Seventh Amendment:

“The command of the Seventh Amendment that

the right of trial jury shall be preserved; does

not require that old forms of practice and proce-

dure be retained (citing cases * * *). New de-

vices may be used to adapt the ancient -¢nstitution

(jury trial) to present needs and to make of it an

efficient instrument in the administration of jus-

tice. Indeed such ie are essential to the pres-

ervation of the right. The limitation imposed by

the amendment is merely that enjoyment of the

right of trial by jury be not obstructed, and that

ultimate determination of issues of fact by the ju

be not interfered with.” (309-310, U.S.; 546, i

Ct.; 923-924, L.Ed.)

ad affirmed the granting of a motion for directed ver-

With respect to such procedure under the Sev-

nth Amendment the Supreme Court said in part:

‘In Gallowoy 0. United States, 1943, 319 US. 372,

Ct. 1077, 87 L.Ed. 1458, the Ninth Circuit Court

“The (Seventh) Amendment did not bind the

_ federal courts to the exact procedural incidents or

_ details of jury trial according to the common law

in 1791, any more than it tied them to the common-

_ law system of pleading or the specific rules of evi-

dence then prevailing. Nor were ‘the rules of the

common law’ then prevalent, including the jury’s

role on questions of fact, crystallized in a fixed and

immutable -system. On the contrary, they were

_ constantly changing and developing during the late

_ eighteenth and early nineteenth centuries. In 1791

this process already had resulted in widely diverg-

ent common law rules on procedural matters amo

the states, and between them and England. * * *

(390-392, U.S.; 1087-1088, S.Ct.; 1471, L.Ed.)

In Byrne v. Matczak, 3rd C.C., 1958, 254 F.2d

cert. den., 358 U.S. 816, 79 S.Ct. 24,3 L.Ed.2d 58,

a District Judge permitted a trial jury to disperse dur-

- ing deliberations, go to their homes, and return to their

- deliberations after a night of rest. It was argued that

traditionally at common law the trial jury had to be

“held intact while deliberating, and the failure to do so

“Yiolated the right of trial by jury as guaranteed by the

| Seventh Amendment. In rejecting such contention, the

court said:

“True, the allowance of a dispersal is contrary

to the old common law, And there is, in Dimick

v. Schiedt, 1935, 293 U.S. 474, 55 S.Ct. 296, 79

10

L.Ed. ae language to the effect that the

Seventh Amendment pe ted jury procedures

as existed in 1791. onan prior to Dimick

v. i the entire development of this area

was to the effect that the constitutional conception

of jury trial is not inflexible in all details, so long

as the essential elements of the institution are pre-

served. Eg. Gasoline Products Co. v. Champlin

Refini ., 1931, 283 U.S. 494, 51 S.Ct. 513,

75 L.Ed. 1188; Ex parte Peterson, 1920, 253 U.S.

300, 40 S.Ct. 543, L.Ed. 919, and and see gen

erally Scott, Tri ury an e Reform of

Civil Procedure, oie 4 Hav. L.Rey.669. And

since Dimick v. Schiedt, supra, this older line of

ing has been reaffirmed in Galloway v.

United States, 1943, 319 U.S. 372, 388-386, 63 S.Ct.

1077, 87 L.Ed. 1458. In this view, fair new pro-

cedures which tend to facilitate proper fact find-

¥ “ Bs allowable although not traditional.” (528-

In Hanna v. Plumber, Massachusetts, 1965, 380

U.S. 460 at 472, 85 S.Ct. 1136 at 1144, 14 L.Ed. 2d 8,

the court said while construing the validity of service

of process under federal rule which apparently was fa-

tally defective under state court provisions:

“For the constitutional provision for a federal

court system (augmented by the Necessary and

Proper Clause) carries with it congressional: power

to make rules erning practice and pleading in

those courts, which in turn include power to regu-

late matters which, though falling within uncertain

area between substance and procedure, are ration-

ally capable of classification as either.”

The phrase “common law” as first used in the Sev-

enth Amendment was held to simply preserve the right

to a trial by jury in actions involving legal rights as dis-

11

act from equitable rights (Ross v. Bernhard, 1970, 396

US. 531, 90 S.Ct, 733, 24 L.Ed.2d 729).

- The second usage in the amendment of the phrase

mon law” simply assured that no judge or judges

Z substitute their decisions on fact i issues in the place

‘ and stead of the fact findings of a jury (Baltimore and

Carolina Line Inc. v. Redman, 1935, 295 U.S. 654, 55

_ $.Ct. 890, 79 L.Ed. 1636):

s In Cooley v. Strickland Transportation Co., April

_ 1, 1972, 459 F.2d 779, the Fifth Circuit Court En Banc

upheld the validity of a similar District Court Rule.

Part of this same court in 1969 decided the case of Fox

®. United States, 417 F.2d 84, relied upon by petitioner.

Johnson v, Louisiana, May 22, 1972, 406 U.S. 356,

92 ) bead , 32 L.Ed. (2d) 152, and Apodaca v. Ore-

- gon, May 22, 1972, 406 US. 404, 92 S.Ct. ........ ae” 4

LEd. (2) 184, upheld the validity of state statutes au-

_thorizing less-than-unanimous verdicts in criminal

- cases. Apparently the state laws were conceded by the

appellant to be constitutionally valid insofar as the Sev-

-enth Amendment was concerned in view of Duncan v.

Louisiana, infra.

a We repeat that when we consider that the framers

of our Constitution phrased the Seventh Amendment

| general terms, and used general language, and re-

“ftained from prescribing details that would be’ binding

“Upon all future generations; and when we consider the

ecision in Williams v. State of Florida in its proper

12

perspective, the conclusions drawn by petitioner ate

simply not warrantted.

PLACING WILLIAMS-STATE OF FLORIDA

IN ITS PROPER PERSPECTIVE

Prior to the decision of the Supreme Court of the

United States in Williams vs. State of Florida, June 22,

1970, 399 U.S. 78, 90 8.Ct. 1893, 26 L.Ed2d 446, no

case presented the precise, specific issue of whether or

not the scope of the right of trial by jury guaranteed in

criminal cases by the Sixth Amendment, or in civil

cases by the Seventh Amendment, required the number

of jurors to be fixed precisely at twelve. We find the

Williams case to be of particular significance since it

did involve the right of trial by jury in a criminal case.

Certainly, if the language fo the Constitution cannot be

construed as requiring any particular number of jurors

in a criminal case, it is difficult to see how it can be so

construed to prescribe the number of jurors in a civil

case,

Case decisions handed down shortly before Wil-

liams-State of Florida assist in placing that*case in its

proper perspective.

: In Duncan v. State of Louisiana, May 20, 1968,

391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491; reh. ‘den.

392 U.S. 947, 88A §.Ct. 2270, 20 L.Ed.2d 1412; 4 dis-

senting opinion by Justic Harlan, joined by Justice Stew-

art, stated in part:

13

“* * * Tf the problem is to discover and articulate

: tules of fundamental fairness in criminal pro-

- ceedings, there is no reason to assume that the whole

body of rules developed in this Court constituting

_ Sixth Amendment jury trial must be regarded as a

unit. The requirement of trial by jury in federal

. criminal cases has given rise to numerous subsidiary

questions respecting the exact scope and content of

the right. It surely cannot be that every answer the

Court has given, or will give, to such a question is

attributable to the Founders; or even that every

rule announced carries equal conviction of this

Court; still less can it be that every sub-principle is

equally fundamental to ordered liberty.

_. Examples abound. I should suppose it obviously

_ fundamental to fairness that a ‘jury’ means an ‘im-

partial *jury’.. I should think it equally obvious

that the rule, imposed long ago in the federal

__- courts, that ‘jury’ means ‘jury of exactly twelve’, is

_ hot fundamental to anything: there is no signifi-

_ €ance except to mystics in the number 12. Again,

trial by jury has been held to require a unanimous

_ verdict of jurors in the federal courts, although

_ unanimity has not been found essential to liberty

in Britain, where the requirement has been aban-

- doned.” (181, US.; 514, L.Ed.; 1465, S.Ct.)

The foregoing language of Justice Harlan was partially

utilized by the majority in Williams-State of Florida:

“We conclude, in short, as we began: the fact

that the jury at common law was composed of pre-

cisely 12 is a historical accident, unnecessary to ef-

fect the purposes of the jury system and wholly

without significance ‘except to mystics’. Duncan

v. popes pre. at “Vn a 2d ne ait “ or

., dissenting).” > “2 é d;

1007 S.Ct.)

We shall not belabor William v. State of Florida,

U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446, which held:

14

“* * * The question in this case then is whether

the constitutional guarantee of a trial by ‘jury’ ne-

cessarily requires trial by exactly 12 persons, rather

than some lesser number—in this case six. We hold

that the 12 man panel is not a necessa ae re

of ‘trial by jury’, and that respon s refusal to

impanel more than six members provided for by

Florida law did not violate prstinners Sixth

Amendment rights as applied to the states throu

rye Fourteenth” ” (86, US.; 452, L.Ed2d; 1

t

When Williams-State of Florida, considered in

perspective, upheld the constitutional validity of a jury

of six persons in a criminal case, then the validity of a

district court rule requiring six pores in civil cases

should be even more clear.

Twelve jurors are required in a federal criminal

trial—not because of the phraseology of the Sixth

Amendment, but because it is expressly required by Rule

23(b) of the Federal Rules of Criminal Procedure.

There is no such requirement in the Federal Rules of

Civil Procedure.

RULE 48 F.R.C.P. DOES NOT CONTROL

Rule 83 F.R.C.P. authorizes a distriét court to

mite governing its practice not inconsistent with

the pfescribed rules of civil procedure, and to furnish

copies of the district rules so promulgated to the Su-

preme Court. The concluding sentence of Rule eg pro-

vides:

“* * * In all cases not provided for by rule, the

district courts may regulate their practice in any

manner not inconsistent with these rules.”

‘thirty-one district courts or more throughout the

ation promulgated a six-man jury rule comparable

tt in Montana, and we understand they had all

n filed with this court and remained on file with this

rt without objection (Cooley v. Strickland, Supra,

F.2d at P. 785).

; Compare the foregoing language with Rule 23(b)

PR.CrimP.:

e . “(b)

"> be of 12

court that the jury shall consist of any number less

‘The foregoing language of both Rule 38(a) F.R.C.P.

‘and Rule 23(b) F.R.Crim.P. must then be compared

“with Rule 48 F.R.C.P. which provides:

ve “Juries of Less than Twelve—Majority Ver-

_ dict. 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 of finding of

the jury.”

reach a conclusion that this rule is a mandate that

ivil jury must consist of twelve persons does not

16

merely twist and strain the language used, but requires

the insertion of language that was never in fact used,

Petitioner urges that a Court cannot rewrite the rules

by judicial interpretation, and then turns right around

and requests the Court to do precisely just that in order

to rewrite Rule 48 F.R.C.P. to arrive at petitioner’s

strained construction.

We have no doubt that when Rule 48 was promul-

gated there was a general assumption that a jury re-

quired by the Seventh Amendment would consist of

twelve persons. The same situation exactly existed with

respect to the jury requirement under the Sixth Amend-

ment until the precise issue was presented to this court

for the first time in Williams v. State of Florida, supra.

The cases of Capitol Traction Co. v. Hof, 1899, 176

U.S. 1, 19 S.Ct. 580, 43 L.Ed, 873, and Patton v. United

States, 1930, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 584,

relied upon by petitioner were discussed in Williams v.

State of Florida, and this court did not hesitate to re-

ject any construction based on mere unfounded assump-

tions such as can be found in those cases. yt his is the

first occasion presented to this court for deciding the

precise issue of whether or not the Seventh Amendment

requires that a federal civil jury must consist of twelve

persons, There is no logical reason for a different treat-

ment in construing the Seventh Amendment thafi was

used in Williams-State of Florida. The historical con-

stitutional background, coupled with the Constitutional

17

of power in Congress to constitute and create

r courts, coupled with the Necessary and Proper

s¢, Coupled with the vesting of juducial power in

lis court “and such inferior courts as the Congress may

fron ‘time to time ordain and establish,” and last, but

t least, coupled with the apparently intentional, broad,

neral language of both the Sixth and Seventh Amend-

ments, clearly suggest that all that is required under our

"Constitution i in either type of case is a fair and impartial

pian regard to the number of persons.

_ The language of the Seventh Amendment does not

lin that a fair’and impartial jury must consist of

twelve persons. In the absence of an act of Congress, or

tule of this court spelling out in plain and unambigu-

§ language that a civil action jury must consist of

persons, the more than thirty-one district court

8 prescribing a six-man jury in civil cases do not vio-

any constitutional guarantees.

We are advised by counsel for one of the Amicus

of their intention to rely upon the decision of

iner v. Atlass, 1960, 363 U.S. 641, 4 L.Ed.2d 1462,

0 S.Ct. 1300, cited and relied upon by petitioner in op-

XC ition to the position we have taken in this brief. We

lave no quarrel with the decision that was reached in

hii er v, Atlass. We believe it was a sound result. It

bly has no factual or legal application to this case.

the de bene esse statute prescribed the only factual cir-

; uimstances under which depositions could be taken, and

18

the only circumstances under which they could be used

in an admiralty trial proceeding. The United States

District. Court for the Northern District of Illinois

adopted a rule which in effect differed from and went

beyond the statutory conditions precedent. The circuit

court affirmed: by this court simply held that a district:

court had no such power. If there was an act of Con-

gress, or a rule promulgated by this court, requiring

that a civil action jury authorized by the Seventh

Amendment must consist of twelve persons then Miner

v. Atlass would be applicable and controlling in this

case. No such facts exist in this case.

ae CONCLUSION

The intention of the framers of our Constitution

to preserve the ancient distinctions in civil cases between

law and equity is clear, and it is apparent that there

was the expressed desire to require a trial before a fair

and impartial jury in civil.common law actions. The

framers of our Constitution foresaw the possibility of

vast social and economic changes in the country which

would require changes in the form required for a fair

and impartial jury to properly administer justice. For

that reason the framers of our Constitution very wisely

spelled out a requirement for a trial by jury but did not

prescribe details. Instead, the Constitution empowered

the Congress to create and establish the inferior courts,

to regulate their conduct, and to make any changes from

CALE CROWLEY

P, O. Box 2529

Billings, Montana 59103

Attorney for Respondent

ORARI TO THE UNITED STATES COURT OF APPEALS FOR

1442. Argued January 17, 1973—~Decided June 21, 1973

federal court rule providing that a jury for the trial of civil

Ls

2 Men saat COLGROVE ». BATTIN fo

sought mandamus-from the-Court of . Appeals for the

Ninth Circuit to direct respondent to impanel a 12-mem-

ber jury. ‘Petitioner contended that the local Rule (1)

violated the Seventh.Amendment;* (2) violated the

statutory provision, :28 | U: S.-C. $2072, that rules

. shall preserve the right to trial by jury as at

common law and as declared by the Seventh Amend.

ment. .’.”;* and’/(3) was rendered invalid by Rule 83

‘of the Federal Rules'of Civil Procedure because “incon-

‘sistent wi ” Bed: Rule Civ. Prot. 48 that ‘provides fo

juries of less than’12 when’ stipiilated by the parties:

The Court of Appeals found no merit in these contentions,

eT re mee OC), and denied

_ The Seventh, Amendment, provides: .

“An its at common aw, wher th ae i cntoverey shal xd

twenty dollars, the right of trial by j shall be preserved, and no

tact tei by jut, sill be ‘reexamined in-any Court of

the United States, than according to the rules of the common law.”

_Stato oourt decisions have usually turned on the interpretation of

I gyre Peovinons;, See Ane, 42, A. 1. Bd 805 (197).

U,8..C, §2072 provides:

ons

“Tm Saree Gos a are te pre opty we

rules, the dierseatat share tthe P mance aecrpomntes

practice and ne ne Nenana ab iat salted: tates is

‘vl actiote.” bi

» “Such rules shall shill tt ehdhdign;ieulangs on dehailliys decpaclanaanive

pone Missa cemeeate perce

toto ete nn etek yin eomcoeaoegameo aetna

Sa ear Sa De PCE Dinter

a cho ur hal be taken ante ero fing ote Ja

Rule 83, Federal Rules of Civil Procedure, provides: —

.* Baely district court iby-aetion of-a:saajority of the judges thereol

‘may from time to time make and amend. rules governing its practice

‘not inconsistent ‘with these rules. . In all cases not provided

for by rule; the district courts may regulate their ete sar

ae oe ee toy

a Aes

COLGROVE.»v. BATTIN 3

rit, 456 F.2d 1379 (1972). peepee setts,

8. GAL (A972), We afirm..-

Wlkame ¥. Flonda, 300 W. S. 78 (1970), the Court

ed the constitutionality of a Florida statute pro-

efor gix-member, juries in certain, criminal cams.

: ! is wile ots Beau meine

suits at common law. - the right. of trial by jury

ee -pemserved ne Quien tare; this language

all Crimes, ‘except’ whch Ot tiie shall

6 by. ; and such Trial shall be held in the State where the said

_ Crimes shall have been committed; but when not committed within

a Eipsts te Doe shake oo Flee oe Fir the Congr

ne Jam have denetod.

_lrapte gat pene cgphmamnrealge gy eng

and public trial, by an impartial jury of the State and

et wherein the.crime shall have been committed, which distriet

.. y ave been previously ascertained by law, and to be informed

_ 6f the nature and cause of the accusation; to be confronted with

~ the wit against him; to have compulsory process for obtaining

wits Fie teen sete Gadreriet Oeek

‘Cts aa

4

is not ‘directed’ to jury charactéristics, such as size, but

rather defines the kind of cases for which jury trial ig

preserved, namely, “suits at common law.” And while

ago, this Court recognized that’“[o}ne of the strongest

‘ob origi ‘taken ‘against the constitution of the

‘United States, was the’want of an express provision se-

curing the right of trial by jury‘in civil cases.” Parsons

v: Bedford, 28 U. 8. (3 Pet.) 433, 446 (1830). But the

omission ‘of protective ‘clause from the” Constitution

‘was not because ‘an’ effort was not made to include one.

‘On the contrary, 8 proposal was made to include a pro-

vision in the Constitution to guarantee the right of trial

States varied widely. as.to the cases in. which civil jury

appropriate to cover the different ’state practices." The

maitted in 1791. Baltimore’@ Carolina Line, Tne. v. Redman, 295

US. 654, 657 (1935); PaFsons’v. Bedford, 28 VU. S.(3 Pet.) 433,

“447-48 (1830);"5 Moore’s Federal” Practice 138.08, ‘at 86-20 (2d

of. 1971). hier

__" Hende id “of the ‘Seventh”Amendiment, 80

Prati iret eck 5 ~

\ se “The z aAS

‘Harv. L. Rev. 280, 207° (1968). - mo

jee 2 M. Farrand, , Records of the Federal Convention 587 (1911).

reo, sipra, ii) 7, at 200-094,

oni of a provision for the protection of the right to, trial

on Until a proposed finial draft of the Constitution was

_ COLGROVE v. BATTIN ; 5

wessures for a civil jury provision in the Bill of

”~ the same difficulty. Thus, it was

site: Senegal -mpavtion 4m, dn. ond

Srodtc t a Bijle wid Artingenient “ At that

arene toa aude eras ila hn

| Ww y yetineie for juries in’Civil eases and suggested

ini agi sa 2M. Farrand, supra, at 587, This provoked

discussion :

. Tt is not, possible to discriminate equity cases from

otha ern a probe The Representatives of the people

safely trusted inthismatter. 9 ~~

Co aeaeinatarer Juries ‘to guard [against] cor-

erg ‘proposed | ‘that. the Committee last appointed

later, a proposal was made by Mr, Cennerenl Dis.

nie’ > add the following language to the Art. III guarantee of

by ary in cinioa come “And a trial by jury shall be pre-

ia re em” Thie-paapossl prompted the following

« *Mr. Gorha ihe: deibdatasiedhht-Deslen todhllsannb tn eect

sand the tril ital is wal in diferent cases in different States,

mn « Wilson of Pennsylvania defended the omission at the Penn-

ia Convention convened to ratify the Constitution: ?

he cases open toa jury, different in different states; it was there-

jmpracticable,on that: ground, to have made a general rule.

nt of uniformity would have rendered any reference to the

of the states idle and useless: and it could not, with any

ety, be said,.that ‘the trial by jury. shall. be as. heretofore:’

\ con dias thempiner wingers one ag ha

pS: daeiacation cout eslote ‘Besides. it. is not im all cases

» trial by jury. is adopted in civil questions: for causes de-

ng in. courts of admiralty, euch 95, relate.to maritime captures,

aanonirioia niet It seems to

COLGROVE v. BATTIN 7

son Heereapon Jens apcitiamaeamnetbcans teste

Amendment were concerned with

Sap NEA Witty fied des eA Gila tobe

existed at common law, rather than the various inci-

iso “trial “by jury.“ In short, what was said in

oe Sema to the criminal jury is equally

plicable’ ‘here: : ‘eonstitutional history reveals no” in-

, in courts of equity and admiralty, juries do not inter-

| that, courts of equity use the trial by jury only in extraor-

So od pe pi YO ROR ARP Sete URS

. COLGROVE 6. BATTIN

is spa ng » sg Spt og cable

at. 309-810; Funk v. United States, 290 U.S, 371, 389

(1988) 94".

Coe mow warns then $0-whether « jury of 12 iso

the of the common law right of trial by jury.

Keeping in mind the purpose of the jury trial in criminal

ucts Co. v. ‘Champlin Co.; 283 U. 8: 494, 498 (1931), the

5 ‘comes down to whether jury performance is 1

no r ize. In Williams, we rejected the no-

that “the reliability of the jury as a factfinder . .

Lis):a function of ite sie,” 209 U.S, at. 100-101, and

COLGROVE v. BATTIN 9

as been suggested to lead us to alter that con-

2 Retechdinde, we: Cac i0-can net ‘oe: anid tha

| er eat ect ft gt of

‘of course, ices eatin Sieh of

eave thie he wadeecent thine “eid by jury”

4 “9 Pai ajay f tele rh eee ean

- el 174 U. 8. 1, 13 (1899); see also American

blishing Co. v. Fisher, 166 U. 8. 464 (1897); Mazwell

w, 176 U. S. 581, 586 (1900). But in each case,

wence to “a jury of twelve” was clearly dictum

} decision upon question presented or liti-

in Capital Traction Co. vy. .Hof, supra,

Slee sited, 8 ronan ty mr mg ORT

os Seats ecocr ores mo