607 F.2d 705 (6th Cir. 1979), 77-1435, Hildebrand v. Board of Trustees of Michigan State University

Docket Nº:77-1435.
Citation:607 F.2d 705
Party Name:John R. HILDEBRAND, Plaintiff-Appellant, v. BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY, Clifton R. Wharton, President, Michigan State University, John Edward Cantlon, Provost, Michigan State University, Edward A. Carlin, Dean of University College, Michigan State University, Douglas Dunham, and Clinton A. Synder, Defendants-Appellees.
Case Date:August 16, 1979
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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607 F.2d 705 (6th Cir. 1979)

John R. HILDEBRAND, Plaintiff-Appellant,



Wharton, President, Michigan State University, John Edward

Cantlon, Provost, Michigan State University, Edward A.

Carlin, Dean of University College, Michigan State

University, Douglas Dunham, and Clinton A. Synder,


No. 77-1435.

United States Court of Appeals, Sixth Circuit

August 16, 1979

Argued April 13, 1978.

As Amended Sept. 17, 1979.

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Kenneth Laing, Jr., MacLean, Seaman, Laing & Guilford, Lansing, Mich., for plaintiff-appellant.

Leland W. Carr, Jr., Anderson, Carr, Street & Hornbach, Lansing, Mich., for defendants-appellees.

Lynwood E. Beekman, Foster, Swift, Collins & Coey, Lansing, Mich., for amicus curiae.

Before WEICK and KEITH, Circuit Judges, and CECIL, Senior Circuit Judge.

KEITH, Circuit Judge.

In recent years, the genteel academic world has been rocked with controversies which have required adjudication by federal judges. This case presents an increasingly common dispute a non-tenured professor whose employment is terminated, claims that his first amendment and due process rights were abridged. The issues presented in this appeal, however, do not directly implicate the merits of how and why the plaintiff was fired. Instead, plaintiff complains of certain evidentiary rulings and of the district court's denial of his right to trial by jury. We find merit in his contentions and reverse and remand for a new trial.



For a number of years prior to 1967, the plaintiff, Dr. John R. Hildebrand, was a full professor at Texas Technological University. He applied for a position on the faculty of Michigan State University and was accepted in April of 1967. Hildebrand began teaching courses in the Department of Social Science 1 at Michigan State in September of 1967.

At the time, Michigan State's social science program followed a standard format to which all professors were expected to conform. The plaintiff became dissatisfied with this mechanical approach since it left no room for variation by individual instructors. He voiced these and other concerns to his colleagues, some of those criticisms were contained in a report entitled Improving Undergraduate Education. He also successfully sought election to a position on the Departmental Advisory Committee. In early June of 1968, shortly after his successful election, the plaintiff met with Douglas Dunham, Chairman of the Department of Social Sciences. The two discussed Dr. Hildebrand's future in what appeared to be a frank and cordial fashion.

Approximately one month later, during the summer recess, Dr. Dunham met with a number of the department's full professors. They discussed Dr. Hildebrand's upcoming reappointment and voted unanimously not to recommend him for reappointment. On September 12, 1968, Dr. Dunham informed the plaintiff by letter that he would not be reappointed. By this time, the plaintiff had returned from the summer recess. Dr. Hildebrand commenced a series of intra-University appeals, but to no avail. He then filed two unsuccessful unfair labor practice charges with the Michigan Employment Relations Commission. The Michigan State courts denied leave to appeal and the plaintiff turned to federal court. Dr. Hildebrand's

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employment with Michigan State terminated on August 31, 1969.

Federal Proceedings

Suit was filed on October 12, 1971, against the defendants The Board of Trustees of Michigan State and various University employees. Plaintiff alleged that his termination was in retaliation for the exercise of his first amendment rights and that the University procedures which were followed contravened the due process clause of the 14th Amendment. The cause of action was based on 42 U.S.C. §§ 1983 and 1985. Plaintiff prayed for reinstatement, back pay and compensatory and punitive damages.

Both plaintiff and defendant made timely requests for a jury trial. The jury trial issue was not raised at all throughout pre-trial proceedings, including a motion to dismiss, motion for a preliminary injunction and motion for summary judgment. At the final pre-trial conference on August 16, 1974, everyone assumed that the case would be tried by a jury and the pre-trial statements so indicated. The case went to trial before a jury for approximately five days. Both sides presented their evidence; neither side moved for a directed verdict at any point. After both sides rested but before the jury was instructed, the district court, on its own motion, questioned whether a jury was appropriate.

After considering the issue, the court concluded that the case sounded in equity and that the case would not be submitted for a jury verdict after all. Instead, the court decided that it would treat the jury as advisory under F.R.Civ.Pro. 39(c) and have it answer certain interrogatories to help out with the final decision. And so it happened: The jury answered four interrogatories; both sides submitted proposed findings of fact and conclusions of law; and the case was submitted to the district court for decision. Over two years later, on March 18, 1977, the court issued an extensive opinion finding in favor of the defendants on all counts and dismissing the complaint. The plaintiff appeals.


The plaintiff contends that the district judge erred in taking the case over from the jury and deciding it himself. We agree. The Seventh Amendment guarantees that a trial by jury be had in all federal cases presenting "legal" claims over $20.00. Before 1938, this presented little problem since cases at law were separate from cases in equity. In 1938, everything changed; law and equity were merged. The merger of law and equity is universally acknowledged to be a good thing, but it has created problems in the jury trial area since one is entitled to a jury trial on legal claims, but not equitable ones. Some clarity was brought to this area by Dairy Queen v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962), and Beacon Theatres Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959), which command that where a case presents both legal and equitable issues, jury trial rights must be preserved.

The question remains, what is a "legal" issue? Guidance is provided by Ross v. Bernhard, 396 U.S. 531, 538 n. 10, 90 S.Ct. 733, 738 fn. 10, 24 L.Ed.2d 729 (1970), where the Court stated:

As our cases indicate, the "legal" nature of an issue is determined by considering, first, the pre-merger custom with reference to such questions; second, the remedy sought; and third, the practical abilities and limitations of juries.

The first part of the test created confusion. Some courts took the view that no jury trial right attached to purely statutory causes of action which had no direct common-law counterpart. See McCraw v. United Ass'n of Journeymen, 341 F.2d 705, 709 (6th Cir. 1965); Lawton v. Nightingale, 345 F.Supp. 683 (N.D.Ohio 1972); Buss v. Douglas, 59 F.R.D. 334 (D.Neb.1973). Whatever merit there might have been to this expansive notion, it was quickly deflated by Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974). There, the Court ruled that a jury trial was available in a housing discrimination suit under Title VIII of the Civil Rights Act where the plaintiff sought

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actual and punitive damages. Curtis v. Loether shifts the focus to the second issue: the nature of the relief sought.

A key dividing line between law and equity has historically been that the former deals with money damages and the latter with injunctive relief. This distinction has been blurred by court decisions indicating that not all money damages claims will be deemed "legal." See Curtis v. Loether, supra at 196, 94 S.Ct. 1005; McFerren v. County Board of Ed. of Fayette Co., Tenn., 455 F.2d 199, 202-04 (6th Cir. 1972); Local No. 92, Int'l Ass'n of Bridge, S. & O. Workers v. Norris, 383 F.2d 735, 740-42 (5th Cir. 1967). See also Georgia Power Co. v. 138.30 Acres of Land, 596 F.2d 644 (5th Cir. 1979). A common example is an employment discrimination claim brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e Et seq. which seeks injunctive relief (i. e. reinstatement) and back pay. Although the Supreme Court has never directly addressed this question, 2 the courts of appeals have uniformly held that no jury trial right exists. See Slack v. Havens, 522 F.2d 1091, 1094 (9th Cir. 1975); EEOC v. Detroit Edison Co., 515 F.2d 301, 308 (6th Cir. 1975), Vacated and remanded on other grounds, 431 U.S. 951, 97 S.Ct. 2669, 53 L.Ed.2d 267 (1977); Robinson v. Lorillard Corp., 444 F.2d 791, 802 (4th Cir.), Cert. dismissed, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971); King v. Laborers Int. Union, 443 F.2d 273, 279 (6th Cir. 1971) (dicta); Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1125 (5th Cir. 1969).

The rationale for this view is that a back pay award is a discretionary, "make whole" remedy which is incidental to injunctive relief. See Lorillard v. Pons, 434 U.S. 575, 582, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1978); Albemarle Paper Co. v. Moody, 422 U.S. 405, 441-444 (Rehnquist, J., concurring); Slack v. Havens, supra at 1094; EEOC v. Detroit Edison Co., supra at 308; Johnson v. Georgia Highway Express, Inc., supra at 1125. In contrast a claim for actual and/or punitive damages is viewed as purely "legal." See Curtis v. Loether, supra at 195-96, 94 S.Ct. 1005; EEOC v. Detroit Edison, supra at 308-11. See also United States v. Snepp, 595 F.2d 926, 935-38 (4th Cir. 1979), Petition for cert. filed June 18, 1979, 47 U.S.L.W. 3826.

The third issue to be examined is whether a case is too complex for the jury to understand. No Supreme Court opinion has ever found such a case, although there is increasing lower court authority concerning it. 3 This factor is inapplicable here in any...

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