Does the Seventh Amendment civil jury trial right apply to the states (and to Puerto Rico)?

I read the court’s decision on this, Gonzalez-Oyarzun v. Carribean City Builders (D.P.R. June 25, 2014), and hoped to blog about it, but had to turn to other matters instead. Fortunately, Prof. Suja Thomas (Illinois), who is a scholar both of the incorporation of the bill of rights and of the jury (her “The Other Branch: Restoring the Jury’s Role in the American Constitution” is forthcoming from the Cambridge University Press) — and whose work was cited by the court — was good enough to let me pass along something she wrote up about the decision; here’s her very interesting analysis:

Should juries decide civil cases in state, commonwealth, and territory courts? According to a federal judge in the Gonzalez-Oyarzun v. Carribean City Builders case, the answer is yes.

The case gives us a lot to think about. First, it concerns whether the Seventh Amendment civil jury right applies to the states, commonwealths and incorporated territories. It also concerns the related question of whether Puerto Rico is an incorporated or unincorporated territory. Second, it is interesting for how it affects Puerto Rico. Third, the decision rejects jury trials in small claims matters. Finally, it is important to the future application of other jury rights to the states.

Application of Seventh Amendment Civil Jury Right to the States and Incorporated Territories

Years ago, the Supreme Court decided that several rights in the Bill of Rights did not apply to the states. These included, among many others, the Second Amendment right to bear arms, the Seventh Amendment, the Fifth Amendment grand jury right, and the Sixth Amendment criminal jury unanimity right. Thereafter, in a series of decisions, culminating in the McDonald decision, in which the Court decided the Second Amendment applied to the states, the Court affirmatively decided that all of the rights that previously were not applied to the states applied to them except the three jury rights — the civil jury right, the grand jury right, and the criminal jury unanimity requirement — what I refer to as the “nonincorporated rights.” (In the past, the Supreme Court decided that the states must offer juries in criminal cases so in the criminal context, the Court has stopped short only in not requiring unanimity for criminal juries.) The Supreme Court has not revisited the issue of whether the jury rights apply to the states. (The Court has never opined on the application of the Third Amendment quartering of soldiers and the Eighth Amendment excessive fines provisions to the states.)

Following McDonald, this summer, a judge in the federal district court of Puerto Rico found that the Seventh Amendment applies to the states. In the case, the plaintiff sued for age discrimination and retaliation in the federal court. The defendant moved to dismiss on several grounds including that a termination agreement required the plaintiff to bring the case in a Puerto Rico court. The plaintiff argued that this forum selection clause was invalid, because Puerto Rico does not permit jury trials in civil cases (whereas jury trials are available in the federal courts), which violated his Seventh Amendment right. While the court held that the clause was valid, it cited my article Nonincorporation and adopted its reasoning that the civil jury right was a fundamental right. Thus, according to the judge, the Seventh Amendment applied to the states.

Under the Insular Cases, the Constitution also applies to the incorporated territories. Although a debate is ongoing regarding whether Puerto Rico continues to be an unincorporated territory, in a previous decision, Consejo de Salud Playa de Ponce v. Rullan, the same district judge decided that Puerto Rico was an incorporated territory. So, the Seventh Amendment also applied to Puerto Rico’s courts.

In Gonzalez-Oyarzun, the judge might have gone further than he did and invalidated the forum selection clause if the First Circuit had not decided a similar case in the past. In Rivera v. Centro Medico de Turabo, Inc., decided before McDonald, the plaintiff argued that the forum selection clause was invalid for two reasons: he had not expressly waived the jury right and Puerto Rico courts did not provide a jury trial. The First Circuit disagreed and decided that the clause was valid because the Seventh Amendment did not apply to Puerto Rico. In Gonzalez-Oyarzun, the judge was careful to point out that Rivera occurred prior to McDonald so the judge’s opinion on the application of the Seventh Amendment to Puerto Rico was not contrary to the First Circuit’s decision, and significantly, the judge did not deviate from the First Circuit’s decision that the clause was valid.

Juries in Puerto Rico Courts

Currently, Puerto Rico’s Constitution provides jury trials in criminal cases so Puerto Rico has an established mechanism for jury trials. If juries are required for civil cases, litigants in Puerto Rico’s courts will have the opportunity to have juries — instead of judges — decide matters such as whether negligence occurred, property issues, and whether employment discrimination occurred — matters most of us take for granted that juries decide. Involvement of juries in civil cases would also increase the participation of people in Puerto Rico’s government. At the same time, the use of juries increases costs. To put this in context, the judge in the Gonzalez-Oyarzun case noted that currently, in Puerto Rico, there are 28,000 civil matters that may be subject to a jury trial though he anticipated that the number a jury ultimately tried would be substantially less, if settlements and dismissals were taken into account.

No Juries in Small Claims Cases

The impact of Gonzalez-Oyarzun is lessened by the court’s decision that juries in small claims matters need not be before juries. The court followed the reasoning of Professor Barrett who argued that English precedent supported juryless small claims cases.

Changing the Nature of Juries in the States?

While states generally require jury trials in civil cases and only a few do not require unanimity in criminal cases, many states do not require grand juries. This case opens up the discussion of whether the grand jury and these other jury rights should be constitutionally required. If these rights apply against the states, states without the rights would need to create them, and where rights already exist, states could not eliminate them.

*****

I have written that significant evidence from England at the time of the adoption of the Constitution, at the time of the founding of the Constitution, and at the ratification of the Fourteenth Amendment showed a civil jury was a fundamental right, and as a result, the Seventh Amendment should apply against the states. For example, Blackstone wrote that “[i]n magna carta [trial by jury] is more than once insisted on as the principal of our liberties; but especially . . . that no freeman shall be hurt in either his person or property” without trial by jury. And the founders quoted Blackstone on the general importance of the jury to protect property, liberty, and life. Moreover, evidence that the civil jury right was fundamental includes that many states had the civil jury right at the time of the founding and at the time of the ratification of the Fourteenth Amendment.

As for Puerto Rico’s status, I do not know enough to weigh in right now, but its status raises important questions here. Because the judge had decided Puerto Rico was an incorporated territory, the Constitution, including the Seventh Amendment applied to it, so the judge did not need to decide whether the Seventh Amendment was a fundamental right. However, the judge may have done so to influence a decision in the future about the application of the Seventh Amendment to the states. Or he may have decided the Seventh Amendment was a fundamental right in the event that Puerto Rico is definitively deemed an unincorporated territory, because fundamental rights apply to the unincorporated territories. But this issue is even more complicated because there is some authority, such as the Ninth Circuit’s Commonwealth of the Northern Mariana Islands v. Atalig, that what is a fundamental right is different for purposes of rights in the Bill of Rights applying against the states and the application of such rights to unincorporated territories.

The exclusion of small claims substantially limits the impact of the decision. In McDonald, the Supreme Court mentioned the possibility of jury trials in small claims matters if the Seventh Amendment applied against the states. I have not specifically studied the support for juries in these cases, but I hope to do so in the future. In A Limitation on Congress: ‘In Suits at Common Law,’ I showed juries almost invariably decide cases with damages so my instinct is small claims matters also should be before juries.  This, along with the text of the Seventh Amendment that refers to jury trials in suits “exceeding twenty dollars,” leaves this question of a jury trial in small claims matters still open to me.

As for what will happen in the future, I hope the Puerto Rico courts follow the federal court’s lead but I am skeptical given the inability of the federal court to enforce its decision against Puerto Rico and the incentive of Puerto Rico not to follow the decision — the high cost of jury trials. The issue presented here would be resolved if the Supreme Court directly considered the question of the whether the nonincorporated jury rights apply to the states instead of the Court avoiding this important topic and continuing to treat the jury differently than the other rights in the Bill.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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Eugene Volokh · August 12