State Con Law Case of the Week: Common Law and Civil Juries
Almost all state constitutions (forty-seven of them by one count) protect the right to a jury trial in a civil lawsuit. But that explicit protection still leaves a lot of questions. Does that mean any lawsuit of any kind requires a jury? What about lawsuits for injunctions or specific performance, remedies that traditionally did not allow for juries at all? And what about not outright denials but restrictions on the jury’s power, such as capping the amount of money it can award?
These provisions often somewhat mirror the Seventh Amendment to the U.S. Constitution (which requires juries “In Suits at common law” for more than “twenty dollars”), but, as the Seventh Amendment has never been incorporated against the states, and as there’s often no monetary minimum,, they have developed these issues mostly on their own. Unsurprisingly, the provisions have produced a treasure trove of litigation over the years that, as you’d expect, goes in various directions in various states. One general thing that can be said overall, though, is that civil jury clauses have been interpreted to mostly apply only to common law remedies for damages. Thus, just as in the English courts of old that our legal system derives from, juries aren’t required for traditional equitable remedies like injunctions (from back when the courts such as Chancery and common law courts such as the King’s Bench really were completely separate courts). And, much more controversially, civil jury clauses have been interpreted to mean that if the state legislature creates a remedy for damages, then there’s no jury guarantee. One example is a cause for wrongful death, which has been found to have not existed at common law. However, a traditional cause of action like negligence would be protected, at least on the face of it.
In recent years these questions have repeatedly arisen in cases challenging damages caps that state legislatures have imposed as tort reform measures. One of those came to the Missouri Supreme Court’s attention last week in Velazquez v. University Physician Associates. There, a woman sued various parties for injuries sustained in a cesarean section. The case went to a jury, which awarded $30,000 in economic damages and another $1,000,000 in past and future non-economic damages. However, the legislature had adopted a cap on non-economic damages, and it barred recovery of about a quarter of the award. The plaintiff argued the cap was unconstitutional under Article I, Section 22(a) of the state constitution which reads: “That the right of trial by jury as heretofore enjoyed shall remain inviolate . . .” The trial court upheld its constitutionality and the plaintiff appealed.
The state supreme court affirmed, over a dissent. The biggest point of disagreement between the two opinions was whether the relevant cause of action was a statutory one or a common law one. The majority claimed that the court had said before that “the General Assembly possesses the authority to abolish common law causes of action.” It admitted that a claim for medical malpractice was a common law cause of action, which under the “heretofore enjoyed” guarantee of Section 22(a) ties it to the right to a jury trial, as it was “heretofore enjoyed” when the Missouri Constitution was first adopted in 1820. But, the majority explained, the legislature abolished that common law cause of action in 2015 and replaced it with a statutory one. And since Section 22(a) doesn’t apply to statutory causes of action, the cap was permissible. (Sidenote: The court says it has read this language to mean prior to 1820, even after subsequent constitutions were adopted with the same provision, the most recent in 1945. Whether that’s the relevant date or whether the new constitution’s date should be the relevant one is an interesting question not discussed in the case that we’ll set aside for today.) This distinguished the case from a 2012 ruling where the court had thrown out a non-economic damages cap.
The dissent saw this as letting the legislature getting away with a bait-and-switch. It claimed the majority, in saying the legislature can abolish common law causes of action, relied on a precedent that actually concerned a statutory cause of action and thus was inapplicable. Its bottom line was that allowing the legislature to abolish a common law cause of action (which would be otherwise protected by Section 22(a)) and replace it with a statutory one (which would not) is an impermissible way around the Constitution’s protections.
Many can disagree with the reasoning of either opinion, but the case is an interesting exploration of the intersection of our constitutional protections and our English legal heritage.
Anthony Sanders is the director of IJ’s Center for Judicial Engagement.