Trial by summary judgment? Erosion of the Seventh Amendment.

In past years, federal courts have curtailed trials by jury through the use of summary judgment, a practice that has worn away at the Seventh Amendment's guarantee of the right to trial by jury in civil cases.(1)

Since the U.S. Supreme Court's 1986 ruling in a trilogy of cases posing questions regarding summary judgment,(2) the lower federal courts have used this tool to the extent that, in many instances, they have usurped the function of the jury, violating the Seventh Amendment.(3)

In none of the cases did the Court address whether there are Seventh Amendment limitations on Rule 56 of the Federal Rules of Civil Procedure - the section dealing with summary judgment.

Supreme Court Justice Joseph Story initially interpreted the Seventh Amendment in United States v. Wonson as guaranteeing the right to trial by jury in civil cases under a historical test.(4) This test determined application of the right based on English common law as it existed in 1791 when the amendment was adopted. The Supreme Court followed this test in later cases.(5)

The right guaranteed by the Seventh Amendment is both substantive and procedural. The amendment not only guarantees the right to trial by jury (procedural), but the interpretation of the amendment must follow common law, and the jury's decision may not be reexamined (substantive). Certainly the language in the amendment - "[N]o fact tried to jury shall be otherwise reexamined in any court of the United States than according to the common law" - places a restriction on the courts.

The Supreme Court, however, has never precisely clarified the substantive reexamination language in the amendment. Applying a strict interpretation of the plain meaning of the language would limit the courts to common law practice in 1791. Then, the only way to challenge a lack of evidence was by a motion in arrest of judgement after a jury trial.(6) A demurer could challenge the sufficiency of the complaint.(7) A plea at bar or plea in abatement could challenge a complaint, but if a dispute of fact arose, the plea was tried by jury. Nothing resembling a motion for summary judgment was then available.

The Supreme Court's interpretation of the Seventh Amendment underwent radical change in the early 20th century. The Court began to undermine the amendment's substance not long after World War 1.

Ex parte Peterson, a 1920 case, marked a major transformation in how the amendment was viewed.(8) The Supreme Court, in a 6-3 decision, upheld the use of an auditor whose opinion would be treated as prima facie evidence in a case to determine issues in dispute.

Justice Louis Brandeis wrote for the Court:

The command of the Seventh Amendment that "the right of trial by jury shall be preserved" does not require that old forms of practice and procedure be retained. It does not prohibit the introduction of new methods for determining what facts are actually in issue, nor does it prohibit the introduction of new rules of evidence.(9)

While the Court had earlier upheld use of summary judgment against a Seventh Amendment attack in Fidelity & Deposit Co. v. United States, it had not discussed the substantive components of the right to a jury.(10) What was most startling about Ex parte Peterson was the Court's statement, "[The auditor's report] will, unless rejected by the Court, be admitted at the jury trial as evidence of facts and findings embodied therein; but it will be treated at most, as prima facie evidence thereof."(11)

The Brandeis opinion casts aside any constitutional restriction, holding instead that the inherent Judicial power of the Court gives it the right to use whatever aids are necessary, to analyze complex matters.

Dimick v. Schiedt reflects the clash of differing interpretations of the amendment.(12) Justice George Sutherland, writing for the majority, said that only a constitutional amendment - not a court's interpretation - could alter a person's right to a trial by jury.

By contrast, Justice Harlan Fiske Stone stated in dissent that the Seventh Amendment may guarantee a trial by jury,

but it does not prescribe any particular procedure by, which these benefits shall be obtained, . . . and it does not confine the trial judge, in determining what issues are for the jury and what for the court, to the particular forms of trial practice in vogue in 1791.(13)

The strict interpretation favored by the Sutherland majority contrasts starkly with the dissenters' view that the amendment was a matter of mere form without substantive limitations.

Later in the same term, the Court in Baltimore & C. Line v. Redman sustained the practice of deferring ruling on a motion for a directed verdict until after the jury verdict had been rendered.(14) The Court cited the historic test and paid lip service to the fundamental right to a jury trial. Nevertheless, it approved a procedural rule that, in essence, "reexamined" the verdict. The dissent in Dimick had now become the accepted view of the Court."(15)

Chipping Away

In Galloway v. United States, the Court further diminished the role of the jury, upholding the use of a directed verdict.(16) Justice Wiley Rutledge, writing for the majority, found that the Seventh Amendment merely preserved the "institution of jury trial in only its most fundamental elements."(17)

In a piercing dissent, Justice Hugo Black wrote -

In 1789, juries occupied the principal place in the administration of justice. They were frequently in both criminal and civil areas the arbiters not only of fact but of law... A long step toward the determination of facts by judges instead of by juries was the invention of the directed verdict."

The dissent also made a salient point by noting that the lower court weighed the evidence in making its decision to use a directed verdict, yet weighing the evidence is a fact-finding function reserved to the jury.

In Atlas Roofing Co. v. Occupational Safety Commission, the Court held that the Seventh Amendment does not prevent Congress from assigning fact-finding to an administrative agency instead of to a jury.(19) The Court added new reasoning to displace the jury - that is, to avoid choking the federal courts with new forms of litigation.

For the first time, the Court used economic reasoning to deny application of a constitutional right to a jury trial.(20) The Court in Parklane Hosiery Co. v. Shore similarly rejected Seventh Amendment arguments for economic reasons.(21)

In 1989, the Court shifted to its early interpretation of the Seventh Amendment in Granfinanciera, S.A. v. Nordberg and rejected the economic argument.(22) The Court found unconstitutional part of Chapter 11 of the Bankruptcy Act of 1983 that denied trial by jury.

Justice Byron White, who wrote for the Atlas Roofing majority, dissented with two others in Granfinanciera, urging limitations on applying the Seventh Amendment.(23) Granfinanciera, however, turned on the question of the procedural right to a jury, not the question of how the jury should function.

In Lytle v. Household Manufacturing, Inc., the Court stated that although a judge may draw different conclusions from the evidence than the jury, it may not replace the jury.(24) According to the Granfinanciera majority, Congress "may not deprive parties litigating [matters of private right! of the Seventh Amendment right to a jury trial."(25)

Like Granfinanciera, Lyttle and Atlas Roofing also turned on the procedural right to a jury. The Court did not deal with the substantive provisions of the Seventh Amendment in any of these cases. The procedural right, however, becomes meaningless if the substantive right is eliminated. The amendment, then, becomes hollow as the federal judiciary confines the jury function.

The Rules

The Federal Rules of Civil Procedure, adopted in 1938, included a provision for summary judgment under Rule 56. The early application of the rule, however, was restricted by the federal appellate courts.(26) Congress delegated to the Supreme Court responsibility for drawing up the Federal Rules with the expressed intent that they not infringe the Seventh Amendment.(27)

In 1988, Congress removed from the section the direction that the rules not impair the right to trial by jury. Whatever Congress's intent in deleting the language, it cannot amend the Constitution. Only approval by three-quarters of the states can do that.

Under Rule 56, a trial court may grant summary judgment only if "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."(28) Depositions, answers to interrogatories, admissions, and affidavits may be used to pierce the allegations to determine whether any material facts are in dispute. Also, the evidence must be viewed in a light most favorable to the party that is opposing the motion.

This rule does not offend the Seventh Amendment. The lower federal courts' current application of the rule does. The standard established in Rule 56 has been misused to broaden the scope of the trial courts' inquiry to include weighing and balancing evidence when considering the substantive evidentiary requirement. The Seventh Amendment is not only procedural but substantive in terms of jury functions.

Three That Made a Difference

The trilogy of 1986 cases dramatically affected the use of summary judgment in the lower federal courts. Celotex Corp. v. Catrett, the most widely cited by the lower courts, merely repeated what was held in Fidelity. Once a party moves for summary judgment, the nonmoving party must reveal evidence supporting the case.(29)

Celotex was basically a procedural case. Matsushita Electric Industrial Co. v. Zenith Radio Corp. held that summary judgment was appropriate in antitrust cases.(30) The third case, Anderson v. Liberty Lobby, Inc., presented a new test.(31) The Court held that the relevant inquiry was whether the evidence presented a sufficient disagreement to require submission to a jury or whether it was so one-sided that one party must prevail as a matter of law. The somewhat ambiguous language of the Liberty Lobby decision may explain why it has not been widely followed by the lower courts.

Although the Supreme Court in Liberty Lobby warned courts against weighing the evidence, it has become common for the federal courts to do just that. The analytical quagmire Justice William Brennan predicted in his dissent in that opinion has been realized.

Trial courts today, however, have gone even further in making factual determinations by a preponderance of the evidence and issuing what amounts to findings of fact.

Brennan's dissent raised the question raised here: How are evidentiary standards to be considered, or what is a trial judge supposed to do in ruling on a motion for summary judgment?

The lower federal courts cite to the restriction on the use of Rule 56 to view evidence in a light most favorable to the opposing party, but, in practice, trial courts continue deciding cases by a preponderance of the evidence. The only way to end this practice is to sharply delineate how these courts should consider evidence.

The decision to allow a case to go to a jury is guided by the substantive evidence standards that apply. It is one thing for a court to determine if a party can meet its evidentiary burden. It is a completely different and unconstitutional matter for a court to decide for itself which side has presented the most plausible story. The court should decide only whether the party opposing the motion has presented a plausible story. These are different tests.

Before 1986, lower federal courts took a more restrictive view of summary judgment. It was not to be used as a substitute for trial.(32) It was not the role of the district court to weigh the evidence.(33)

Delusionary Argument?

There is a misconception that summary judgment provides an efficient means to reduce court backlog and expedite the disposition of cases. This is the economics argument that appears in Justice White's opinions in the three 1986 rulings.

The reality is that summary judgment may consume far more of a trial judge's time than a jury trial. Many civil cases can be tried in a day or two. Given the size of the record created by liberal discovery rules, it may take the trial judge more than two days to review the evidence on a motion for summary judgment and write an opinion.

A voluminous record with issues of law requiring 100 hours of a judge's time in a case that can be tried in one or two days is more efficiently submitted to a jury and conserves the judge's resources. Many experienced trial lawyers would agree that trial by jury is far more expeditious in resolving cases than summary judgment. In any event, preservation of a constitutional right should not depend on judicial efficiency.

It is time for the bar to raise this issue rather than acquiesce to summary judgment. Seventh Amendment questions must be raised in the opposition brief to the motion for summary judgment if this important constitutional issue is to be preserved for appeal. The trial judge must be given an opportunity to address the issue.

(1) "In suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved, and no fact tried to jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law." (2) Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); and Celotex Corp v. Catrett, 477 U.S. 317 (1986). (3) U.S. CONST. amend. VII. For a detailed discussion of the amendment, see generally Edith Guild Henderson, The Background of the Seventh Amendment, 80 HARV. L. REV. 289 (1966); Charles W Wolfram, The Constitutional History of the Seventh Amendment, 57 MINN. L. REV. 639 (1973). (4) 28 F. Cas. 745 (No. 16, 750) (C.C.D. Mass. 1812). See also Parsons v. Bedford, 28 U.S. (3 Pet.) 433 (1830). (5) See, eg., Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989). (6) 3 WILLIAM BLACKSTONE, COMMENTARIES *393. (7) Id. at 314. (8) 253 U.S. 300 (1920). (9) Id. at 309. (10) 187 U.S. 315 (1902). (11) 253 U.S. 300, 310-11. (12) 293 U.S. 474 (1935). (13) Id. at 491 (Stone, J., dissenting). (14) 295 U.S. 654 (1935). (15) Three years later, the Federal Rules of Civil Procedure, which include Rule 56 on summary judgment, were adopted. (16) 319 U.S. 372 (1943). (17) Id. at 392. (18) Id. at 399 (Black, J., dissenting). (19) 430 U.S. 442 (1977). (20) Id. at 455, 460. (21) 439 U.S. 322 (1979). (22) 492 U.S. 33. (23) Id. at 53. (24) 494 U.S. 545 (1990). The Court held that where both equitable and legal remedies were sought, a party was entitled to a jury trial on the legal issues. See also Defender Indus., Inc. v. North Western Mut. Life Ins., 938 F.2d 502 (4th Cir. 1991). (25) Granfinanciera, 492 U.S. 33, 53. (26) See, e.g., Dolgow v. Anderson, 438 F.2d 825 (2d Cir. 1970); Doehler Metal Furniture Co. v. United States, 149 F.2d 130 (2d Cir. 1945). (27) 28 U.S.C. [sections] 2072 (1948). (28) Fed. R. Civ. P. 56. (29) 477 U.S. 317. See also Fidelity, 187 U.S. 315. (30) 475 U.S. 574. But see Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451 (1992) holding that antitrust violations may raise certain genuine issues of material fact to preclude summary judgment). (31) 477 U.S. 242. (32) Redhouse v. Quality Ford Sales, Inc., 511 F.2d 230, 234 (10th Cir. 1975) (quoting Smoot v. Chicago, Rock Island & Pacific R.R. Co., 378 F.2d 879 (10th Cir. 1967)). (33) See e.g., Tankersley, v. Albright, 514 F.2d 956, 963 7th Cir. 1975