INTRODUCTION I. THE CONSTITUTIONAL RIGHT TO A JURY TRIAL IN CIVIL CASES A. Civil Jury Rights in State Constitutions B. The Seventh Amendment and Its Roots in State Constitutions C. The Intertwined-Issues Problem: Applying the "Inviolate" Right in Merged Courts II. THE JURY RIGHT IN FEDERAL AND STATE COURTS AT THE TIME OF BEACON THEATRES A. Beacon Theatres and Dairy Queen Adopt the Functional Approach B. State Courts Adopt the Traditional Interpretation C. Statutory Extensions of the Jury Right After Merger III. THE RIGHT TO A JURY TRIAL IN CIVIL SUITS TODAY A. Traditional-Rule States 1. Issue-orientation states 2. Action-orientation states 3. Exceptions for the compulsory legal counterclaim 4. The equal rights to a bench trial and a jury trial B. Functional-Rule States IV. JUDICIAL FEDERALISM AND CIVIL JURY RIGHTS A. The Judicial Federalism Paradigm B. Analyzing the Intertwined-Issues Problem in State Court 1. Lockstep states 2. Independent state constitutional analysis 3. Discussing Beacon Theatres C. Unpacking the Justification for Following Beacon Theatres 1. Are the Seventh Amendment and parallel state constitutional rights identical? 2. Is Beacon Theatres a good analogy for state courts? CONCLUSION APPENDIX INTRODUCTION
The Seventh Amendment, which guarantees a right to a jury trial in certain civil cases, is one of the few constitutional rights the Supreme Court has passed over for incorporation--that is, for application against the states through the Fourteenth Amendment. (1) Two characteristics distinguish the Seventh Amendment from all other unincorporated rights: the right to a jury trial is both provided for in the great majority of state constitutions and has generated an appreciable body of case law at both the federal and state levels.
Beacon Theatres, Inc. v. Westover is one of the first cases any student of the Seventh Amendment will read; it resolved a question of scope for the Seventh Amendment that was brought about by the merger of law and equity. (2) The Supreme Court used a broad rule for interpretation that has since become a fixture in Seventh Amendment jurisprudence. But at the time the Court decided Beacon Theatres, many states had already decided the issue and almost uniformly followed a more conservative rule. State law on the issue went unnoticed by the Court. It is absent from the Beacon Theatres opinions and the briefs filed with the Court.
Today, Beacon Theatres is the starting point for analysis in many state cases--even though state courts are not compelled to accept the case. In some states, the analysis seizes on the Seventh Amendment's unincorporated status and reads like a rare step back into preincorporation days, when state courts alone set the metes and bounds for constitutional rights without direction from the U.S. Supreme Court. Many other state supreme courts elect to follow the Supreme Court's interpretation of the parallel right, some with and some without consideration of alternatives. Within a few years of Beacon Theatres, some state courts had uprooted established doctrine and planted the Beacon Theatres rule into state case reporters, either adopting Beacon Theatres as part of a broader judge-made policy of deferring to U.S. Supreme Court doctrine or embracing the rule out of a sense of obligation to the Court, with sometimes only cursory analysis of the Court's reasoning. In other states, state supreme courts determined that the state constitutional right differed from the Seventh Amendment right, leading to corresponding state rules that differed from the Beacon Theatres rule.
Justice William J. Brennan's pathbreaking article State Constitutions and the Protection of Individual Rights (3) set off new research and discussion about what came to be called the new judicial federalism. Justice Brennan argued that state constitutions should break from the federal interpretation and supply rights above and beyond those rights protected in the Bill of Rights. (4) However, judicial federalism scholars have given the unincorporated rights comparatively little consideration. Beacon Theatres presents a one-of-a-kind experiment in judicial federalism as an unincorporated right, where the U.S. Supreme Court does not set the "floor" for the right.
Though many scholars have written about Seventh Amendment jurisprudence, this Note is the first recent scholarship to take the pulse of the civil jury right in the states, where over ninety-five percent of American civil jury trials occur annually, (5) and where the right to a jury in civil trials was born. This Note reveals both a surprising amount of diversity in interpretations, even though the state constitutional rights are similar in text and history, and cryptic deference to Beacon Theatres, even though Seventh Amendment case law does not apply to the states. More than fifty years after Beacon Theatres, the case's presence continues to be felt, as state courts evaluate the issue in light of its holding. Just last year, for instance, the Oregon Supreme Court adopted the Beacon Theatres rule. (6)
Part I of this Note describes the substance and history of the right to a jury trial in civil cases under state constitutions and introduces this Note's forum for analysis: the intertwined-issues problem. Part II reveals state courts' surprising agreement on treatment of the intertwined-issues problem before the U.S. Supreme Court's adverse decision in Beacon Theatres. In opposition to overstatements about the prevalence of Beacon Theatres in state courts, Part III presents a genuine split in state courts between those following the Supreme Court's interpretation in Beacon Theatres and states that follow a different construction, typically the traditional rule that dominated in the states before Beacon Theatres. Part IV discusses state courts' analytical treatment of the intertwined-issues problem in light of the judicial federalism paradigm and criticizes many state courts' lack of transparency through conclusory statements about uniformity between the Seventh Amendment and parallel state constitutional rights. None of the state supreme courts' interpretations of the inter-twined-issues problem is indefensible, but some state courts' reliance on federal precedent leaves their opinions difficult to defend and neglects state constitutions.
THE CONSTITUTIONAL RIGHT TO A JURY TRIAL IN CIVIL CASES
State constitutional rights to a jury trial in civil cases antedate the Seventh Amendment, and in their substance, bear greater resemblance to each other than they do to the Seventh Amendment. Generally speaking, the Seventh Amendment and the parallel state constitutional rights are designed to protect the right to a jury trial as it existed at common law. (7) When states merged their separate courts of law and equity, it became difficult to apply a rule for separate courts in one merged court: "[Trial by jury] is the sword in the bed that prevents the complete union of law and equity." (8) Significantly, the Seventh Amendment is one of few rights in the first eight amendments to the U.S. Constitution that have not been incorporated, leaving the states free to make an independent determination of the scope of the right under merged courts.
Subpart A describes the current status of the right to a jury trial in state constitutions and the history behind the scope of these rights. Subpart B explains the Seventh Amendment's historical link to the parallel state constitutional rights, and Subpart C presents the intertwined-issues problem, the issue decided by the U.S. Supreme Court in Beacon Theatres.
A. Civil Jury Rights in State Constitutions
Each of the original post-Revolution state constitutions guaranteed jury rights in civil and criminal trials. It was probably the only right universally secured by each of the state constitutions. (9) The Articles of Confederation never created federal courts, so the state constitutions were the sole source of the right to a jury trial in the United States. To this day, the constitutions in several of the former colonies are unique for their explicit reference to the civil jury right as being "sacred" (10) and "one of the best securities of the rights of the people." (11) For example, Virginia's Declaration of Rights of 1776 provided, "That in controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred." (12)
Today, forty-seven state constitutions provide for the right to a jury trial in civil cases, and most do so in the "Declaration of Rights" article, the state constitution counterpart to the U.S. Constitution's Bill of Rights. Variations are few. Over thirty states hold the right to be "inviolate." For example, Indiana requires that "[i]n all civil cases, the right of trial by jury shall remain inviolate. (13) Other states' jury rights are "as heretofore" (14) or "held sacred." (15) In the Seventh Amendment, the right is "preserved," (16) and only the state constitutions of Alaska, Hawaii, and West Virginia echo the Seventh Amendment's "preserved" language. (17) With the exception of Utah, the clear intention in all forty-seven constitutions is to "freeze" the jury right at some point in time and constitutionally protect it to that extent. (18) The Utah Constitution's jury section does not expressly grant the right to a civil jury, (19) but the Utah Supreme Court enforces the right, saying constitutional convention records show a clear, virtually unanimous intent to "preserve" the right to a jury trial in civil cases. (20)
What is preserved? All forty-seven states hold that their constitutions protect the right to a jury either as it was at the time the state constitution was adopted (21) or that the state constitution adopts the right as it existed at English common law. (22) The practical effect of the distinction is negligible, as both interpretations generally preserve the right as it was at...