Melancon v. McKeithen, Civ. A. No. 3390

• Citation: 345 F. Supp. 1025
• Decision Date: 01 March 1972
• Docket Number: 68-2,Civ. A. No. 3390,68-225,67-20,68-110,68-28,70-1857 and 71-227.
• Parties: Jesse MELANCON v. The Honorable John J. McKEITHEN, Individually and in his capacity as Governor of the State of Louisiana, et al. Mrs. Edith HILL v. The Honorable John J. McKEITHEN, Individually and in his capacity as Governor of the State of Louisiana, et al. Fleta A. JONES, as Natural Tutrix of the Minor, Brenda Ware v. AETNA CASUALTY AND SURETY COMPANY et al. Derle LONG and Lorena Long v. The Honorable John J. McKEITHEN, Individually and in his capacity as Governor of the State of Louisiana, et al. Guthrie A. MAYES and Charlie G. Garner v. Frederick S. ELLIS et al. Joseph H. MOTICHEK v. The Honorable John J. McKEITHEN, Individually, and in his capacity as Governor of the State of Louisiana, et al. Mrs. Pauline DAVIS, Next of Friend of Charles Davis and Jerry Davis v. The Honorable John J. McKEITHEN et al. Angie R. LEWIS, Individually and Duly Qualified Natural Tutrix of the Minor, Velecia Ann Lewis v. FORD MOTOR COMPANY et al.
• Court: U.S. District Court — Eastern District of Louisiana

345 F. Supp. 1025

Jesse MELANCON v. The Honorable John J. McKEITHEN, Individually and in his capacity as Governor of the State of Louisiana, et al.

Mrs. Edith HILL v. The Honorable John J. McKEITHEN, Individually and in his capacity as Governor of the State of Louisiana, et al.

Fleta A. JONES, as Natural Tutrix of the Minor, Brenda Ware v. AETNA CASUALTY AND SURETY COMPANY et al.

Derle LONG and Lorena Long v. The Honorable John J. McKEITHEN, Individually and in his capacity as Governor of the State of Louisiana, et al.

Guthrie A. MAYES and Charlie G. Garner v. Frederick S. ELLIS et al.

Joseph H. MOTICHEK v. The Honorable John J. McKEITHEN, Individually, and in his capacity as Governor of the State of Louisiana, et al.

Mrs. Pauline DAVIS, Next of Friend of Charles Davis and Jerry Davis v. The Honorable John J. McKEITHEN et al.

Angie R. LEWIS, Individually and Duly Qualified Natural Tutrix of the Minor, Velecia Ann Lewis v. FORD MOTOR COMPANY et al.

Civ. A. Nos. 3390, 67-20, 68-2, 68-28, 68-110, 68-225, 70-1857 and 71-227.

United States District Court, E. D. Louisiana, Baton Rouge Division.

March 1, 1972.

Robert B. Neblett, Jr., Leonard Fuhrer, Neblett Fuhrer & Hunter, Alexandria, La., for plaintiff Fleta A. Jones.

Jack P. F. Gremillion, Atty. Gen., Wesley R. Wirtz, Baton Rouge, La., for defendants, Chief Justice and Associate Justices, Governor, and Attorney General.

Sam A. LeBlanc III, Adams & Reese, New Orleans, La., for defendant, Aetna Casualty and Surety Co.

Arthur Cobb, Baton Rouge, La., for plaintiffs Hill, Melancon, Motichek and Derle Long.

Calvin E. Hardin, Jr., Durrett, Hardin, Hunter, Dameron & Fritchie, Baton Rouge, La., for defendant, Insurance Co. of North America.

Jack P. F. Gremillion, Atty. Gen., of Louisiana, Thomas W. McFerrin, Asst. Atty. Gen., Kenneth C. DeJean, Sp. Counsel to the Atty. Gen., Baton Rouge, La., for defendant, Governor McKeithen, Attorney General Gremillion, Judges Paul B. Landry, Frederick S. Ellis and Julian E. Bailes.

Carlos G. Spaht, Kantrow, Spaht, Weaver & Walter, Baton Rouge, La., for defendants, Continental Casualty Co., Willie & Willie Contractors, Inc., Willie & Willie Realtors, Leo Willie and Marlin D. Willie.

Sydney B. Nelson, Pugh & Nelson, Shreveport, La., for Hollis Berry, Jr., amicus curiae.

Carlos G. Spaht, Kantrow, Spaht, Weaver & Walter, Baton Rouge, La., for defendant, Jess Johnson.

Leon Sarpy, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, La., for defendants, amicus curiae.

J. D. DeBlieux, DeBlieux & Guidry, Baton Rouge, La., for defendant, Clovis Hendry, Inc. and Benny Spence.

J. Minos Simon, Lafayette, La., for plaintiff Mayes.

Jack P. F. Gremillion, Atty. Gen., Wesley R. Wirtz, Asst. Atty. Gen., Kenneth C. DeJean, Special Counsel, Baton Rouge, La., for defendants, Ellis, McKeithen and others.

L. O. Lauve, Alexandria, La., for plaintiff, Angie R. Lewis, etc.

Valentine Irion, Shreveport, La., for defendant, Ford Motor Co.

Roy L. Beard, Shreveport, La., for defendant, Wray Lincoln Mercury, Inc.

G. M. Bodenheimer, Jr., Shreveport, La., Donn Moss, Baton Rouge, La., for defendant, Many Motors Co., Inc.

Before WISDOM, Circuit Judge, and WEST and HEEBE, District Judges.

WISDOM, Circuit Judge:

The plaintiffs in these consolidated cases (See Appendix A) invite this Court to hold that the Seventh Amendment of the United States Constitution¹ applies to civil actions in Louisiana courts through the Due Process Clause of the Fourteenth Amendment. We decline the invitation. The Supreme Court has never adopted the principle that the Due Process Clause of the Fourteenth Amendment totally "incorporates" all the specific guarantees in the Bill of Rights. Assuming that the term "selective incorporation" properly describes the process by which now a specific guarantee in the Bill of Rights is considered applicable to the states, we note that the Supreme Court has never selected the Seventh Amendment as applicable to trials in state courts. Taking a pragmatic and federally sound approach to the issue, we hold that jury trial in civil cases and the absolute prohibition of judicial reexamination of jury findings in civil cases are not so fundamental to the American system of justice as to be required of state courts by due process.

Although the Louisiana Constitution contains no guarantee of the right to a trial by jury in civil cases, Articles 1731-33 of the Louisiana Code of Civil Procedure require a jury trial on the timely demand of either party to an action.² Civil appeals in Louisiana, however, are on both the law and the facts. La.Const., 1921, Art. VII, ? 10 and 29.³ Many Louisiana lawyers consider that appellate scrutiny of the facts offsets the advantages of sympathy or pooled intuition associated with jury trials. As a consequence, civil jury trials are a rarity in Louisiana.⁴ A related rarity is a long queue of litigants, often found in other states, waiting for many months or years for their actions to be tried.⁵ A civil jury trial in Louisiana, however, is more than an exercise in futility, for appellate courts will not disturb a jury's or a trial judge's verdict unless the findings of fact are "manifestly erroneous".⁶

I. PROPRIETY OF A THREE-JUDGE COURT AND JURISDICTION OF THE COURT

A. At the outset we must meet the defendants' contentions that this case is not one for a three-judge court. See 28 U.S.C. ? 2281.⁷

1. Relevant to the three-judge court issue is the fact that a decision favorable to the plaintiffs would disrupt the Louisiana judicial system for the trial and appeal of civil actions.

The First Session of the Legislative Council of the Territory of Orleans adopted the Practice Act of 1805, which evolved into the Code of Practice of 1825.⁸ This Act introduced juries in Louisiana. Chap. 26 pp. 210, 216, Act of April 10, 1805. In this statute, as in all the State's later Codes of Practice, the right to a civil jury is absolute on the timely request of either party to the action. See footnote 2.

When Louisiana became a state in 1812, by constitution, statute, and judicial decision Louisiana accepted the common law criminal system, including the right to trial by jury in prosecutions.⁹ Then and now in Louisiana the law of crimes is substantially the same as it is in other states and procedures in criminal cases, including jury procedures, show little more variance from the norm than may be found in many states. This receptivity to Anglo-American law in the criminal field is not true of private law and civil procedure. Louisiana jurists, influenced by their French and Spanish legal heritage, never accepted the civil jury's findings as sacrosanct.¹⁰ Four years after Louisiana became a state, the Louisiana Supreme Court held that appellate courts could review the evidence and modify or reverse a civil jury's verdict. Abat v. Doliolle, 1816, 4 Mar.(O.S.) 136. This is still the law, subject to the "manifest error" doctrine. The current Louisiana constitution, following earlier constitutions, expressly provides for appellate review of "the law and the facts". Const. of 1921, Art. 7, ?? 10, 29. In Louisiana, as in civilian jurisdictions generally "equity" is fused with what is considered the "common law" in Anglo-American jurisdictions;¹¹ prohibition of appellate review of the facts would tend to destroy this fusion. The state has never had common law courts as distinguished from other courts. It has never had common law forms of action, still ruling some state courts from the grave. Indeed, the reference in the Seventh Amendment to "suits at common law", construed as the Framers construed it, is meaningless in the Louisiana judicial system. It could be said that, in terms, the Seventh Amendment is inapplicable to Louisiana.

These consolidated cases seek to overthrow Louisiana's simple, long-standing, demonstrably effective civil procedures. They therefore clearly come within the policy underlying Section 2281: that is, that a three-judge district court is required when plaintiffs seek in federal courts to restrain enforcement by state officials of state statutory or constitutional provisions.

2. The defendants argue that since the Supreme Court has applied the Bill of Rights selectively to the States and has consistently ruled the Seventh Amendment inapplicable to the States, no substantial federal question exists requiring the case to be heard by a three-judge court. See Bailey v. Patterson, 1962, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512; Ex parte Poresky, 1933, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 1323. It is true that a long and consistent line of Supreme Court cases stands adverse to the plaintiffs' contention.¹² Numerous recent Supreme Court cases, however, have shown an increasing willingness on the part of the Court to re-examine the old precedents which held certain specifics in the Bill of Rights inapplicable to the States.¹³ These cases illustrate the responsiveness of the Court to an evolving standard of due process. Accordingly, the Supreme Court never having commanded total incorporation of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment, we conclude that at this point in our constitutional history a substantial federal question exists here: we must reassess the requirements of due process with respect to jury trials and the review of jury findings in state civil proceedings.

B. The plaintiffs' complaints predicate "jurisdiction" on 28 U.S.C. ?? 1331 and 1343(3) and 42 U.S.C. ?? 1983, 1981, and 1988. We hold that this Court properly has jurisdiction under 28 U.S.C. ? 1343(3)¹⁴ of a cause of action based on 42 U.S.C. ? 1983¹⁵ alleging deprivation, under color of state law, of rights secured by the United States Constitution.

The defendants object to the jurisdiction of this Court on several grounds. First, some of the defendants as in Melancon v. McKeithen (see Appendix A), argue that the trial judge's order granting a new trial is not a final judgment and, therefore, may not be...