456 F.2d 1379 (9th Cir. 1972), 71-2546, Colgrove v. Battin

Docket Nº:71-2546.
Citation:456 F.2d 1379
Party Name:Roland V. COLGROVE, Petitioner, v. Hon. James F. BATTIN, United States Distict Judge for the District of Montana, Billings Division, Respondent.
Case Date:March 06, 1972
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1379

456 F.2d 1379 (9th Cir. 1972)

Roland V. COLGROVE, Petitioner,

v.

Hon. James F. BATTIN, United States Distict Judge for the District of Montana, Billings Division, Respondent.

No. 71-2546.

United States Court of Appeals, Ninth Circuit.

March 6, 1972

         Roland V. Colgrove, Miles City, Mont., Lloyd J. Skedd, Helena, Mont., for petitioner.

         Cale Crowley, of Crowley, Kilbourne, Haughey, Hanson & Gallagher, Dale F. Galles, of Harwood, Galles, Gunderson & Beiswanger, Billings, Mont., for respondent.

         L. Morris Ormseth, of Jardine, Stephenson, Blewett & Weaver, Great Falls, Mont., for real party in interest.

         Before MERRILL, DUNIWAY and TRASK, Circuit Judges.

Page 1380

         MERRILL, Circuit Judge.

         Pursuant to the authority of Rule 83 of the Federal Rules of Civil Procedure, 1 the District Court for the District of Montana promulgated its local Rule of Procedure 13(d)(1), effective September 1, 1971:

"A jury for the trial of civil cases shall consist of six persons * * *."

         In Civil Case No. 783 in the District Court for the District of Montana, petitioner, as plaintiff, sought a jury trial. Respondent District Judge, over the objection of petitioner that he was entitled to a jury of twelve, ordered that trial be to a jury of six persons, pursuant to the new local rule. Petitioner, by these proceedings seeking a writ of mandamus, challenges the validity of that rule. The defendant in Civil Case No. 783 has appeared in these proceedings, aligning itself with the position of petitioner.

         The challenge to the District Court rule is primarily on three levels:

          1. It is contended that the rule violates the Seventh Amendment to the Constitution of the United States. 2

         We conclude otherwise.

         In Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), the Supreme Court held that the Sixth Amendment does not guarantee a right to a jury of twelve in criminal cases. While the question of whether this conclusion should apply to civil cases under the Seventh Amendment was reserved by the Court, 399 U.S. at 92 n. 30, 90 S.Ct. at 1901, the reasons given for the holding seem to us to apply with equal force to the Seventh Amendment. That amendment does, it is true, refer to the common law. It does not, however, purport to define the jury or trial by jury in terms of the common law.

          2. It is contended that the local rule cannot stand in light of 28 U.S.C. § 2072, the statute which authorized promulgation by the Supreme Court of the Federal Rules of Civil Procedure. 3

         We conclude otherwise.

         Here we are confronted with the phrase "right of trial by jury as at common law." This language upon its face would appear to deny to the Supreme Court authority to dispense with any characteristics of the jury or of trial by jury known to the common law. This would indeed be a sweeping limitation. The Congress has, it is true, dealt extensively with the jury system. 28 U.S.C.§ 1861 et seq. It is hardly conceivable, however, that it was felt that the Supreme Court should not be...

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