Anzaldua v. Band

• Citation: 550 N.W.2d 544,216 Mich.App. 561
• Decision Date: 14 May 1996
• Docket Number: Docket Nos. 168358,170339
• Parties: , 110 Ed. Law Rep. 1258, 11 IER Cases 1619 Sharon E. ANZALDUA, Plaintiff-Appellant, v. Rudolph Neal BAND and Michigan State University, Defendants-Appellees. John Edward SUROWY, Plaintiff-Appellee, v. WAYNE STATE UNIVERSITY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 544

550 N.W.2d 544

216 Mich.App. 561, 110 Ed. Law Rep. 1258,

11 IER Cases 1619

Sharon E. ANZALDUA, Plaintiff-Appellant, v. Rudolph Neal BAND and Michigan State University,

Defendants-Appellees.

John Edward SUROWY, Plaintiff-Appellee, v. WAYNE STATE UNIVERSITY, Defendant-Appellant.

Docket Nos. 168358, 170339.

Court of Appeals of Michigan.

Submitted Nov. 21, 1995, at Lansing.

Decided May 14, 1996, at 9:10 a.m.

Released for Publication July 12, 1996.

Thomas J. Jewett, Okemos, and Green and Green by Philip Green and Christine A. Green, Ann Arbor, for Sharon E. Anzaldua.

Dib and Fagan, P.C. by Barry S. Fagan and Robert A. Dubin, Detroit, for John E. Surowy.

Fraser Trebilcock Davis & Foster, P.C. by Michael E. Cavanaugh and Mark R. Fox, Lansing, for Rudolph N. Band.

Michael J. Kiley, East Lansing, for Michigan State University.

Daniel J. Bernard, Detroit, for Wayne State University.

Before MARKMAN, P.J., and O'CONNELL and PAYANT, ^* JJ.

MARKMAN, Presiding Judge.

In Docket No. 168358, plaintiff Anzaldua appeals by leave granted a trial court order striking her jury demand. In Docket No. 170339, defendant Wayne State University appeals by leave granted a trial court order denying its motion to strike plaintiff Surowy's jury demand. These cases, consolidated for appeal, are actions for relief under the Whistleblowers' Protection Act (WPA), M.C.L. § 15.361 et seq.; M.S.A. § 17.428(1) et seq. They present the issue whether the right to a jury trial is retained in actions under the WPA. We conclude that it is. We further conclude that the fact that the defendant universities are state institutions does not change this result. We therefore reverse in Docket No. 168358 and affirm in Docket No. 170339.

The WPA is silent regarding whether parties bringing actions under its provisions are to be afforded a right to a jury trial. ¹ In both cases here, the trial courts appropriately framed the issue as whether parties bringing actions under the WPA retained the right to a jury trial under the Michigan Constitution. Const.1963, art. 1, § 14 states in pertinent part:

The right of trial by jury shall remain, but shall be waived in all civil cases unless demanded by one of the parties in the manner prescribed by law.

The "shall remain" language indicates that this provision retains the right to a jury trial as it existed at the time the constitution was adopted and neither restricts nor enlarges it. Accordingly, the question before us in interpreting this provision is what the "right of trial by jury" was in 1963. ² We must define the parameters of the constitutional right to a jury trial to determine whether this right is retained in actions under the WPA.

Here, the trial courts came to opposite conclusions regarding whether the right to a jury trial is retained in actions under the WPA because each used a different test to analyze the constitutional right to a jury trial. In Docket No. 168358, the trial court stated, "there is no right to a jury trial under the [WPA] because that Act was not a common law cause of action prior to the adoption of the 1963 Constitution." In Docket No. 170339, the trial court compared the case before it to King v. General Motors Corp., 136 Mich.App. 301, 356 N.W.2d 626 (1984), which held that the right to a jury trial is preserved in actions under the Civil Rights Act. It stated that "an employment discrimination action constitutes a suit for damages and is therefore an action at law which existed prior to the adoption of the Michigan Constitution" and concluded that "I think that is the issue."

These two approaches differ regarding the conditions under which the constitutional right to a jury trial is retained when the Legislature creates a new cause of action without indicating whether the action is to be tried by a jury or the bench. We will refer to these two approaches as the historical-analogue approach and the nature-of-action approach throughout this opinion. ³ Under the historical-analogue approach, the test is whether a similar cause of action in which a jury trial was accorded existed at the time the 1963 constitution was adopted. Under the nature-of-action approach, the test is whether the cause of action would have been denominated as legal at the time that the 1963 constitution was adopted and, therefore, whether a party bringing the action would have been accorded a right to a jury trial.

Our nomenclature for the two approaches is intended to distinguish them. However, the distinction between them is more subtle than this nomenclature-indicates. Both approaches have an historical-analogue element. Because Const.1963, art. 1, § 14 states that the right to a trial by jury shall "remain" as it was at the time the state constitution was adopted, the focus under each approach is whether a party bringing a similar cause of action would have been afforded a right to a jury trial at that time. With respect to this historical-analogue element, the distinction between the two approaches is how broadly the concept of a similar cause of action is read. The historical-analogue approach requires the existence before the adoption of the 1963 constitution of a common-law action protecting similar legal interests in which a right to a jury trial was afforded. The nature-of-action approach requires only that the cause of action at issue be legal as opposed to equitable, because the common law at the time of the adoption of the 1963 constitution recognized a right to a jury trial in actions denominated as legal.

Both approaches also consider the nature of the action--whether it is legal or equitable. The denomination of an action as legal or equitable determines whether there is a right to a jury trial under the nature-of-action approach. The historical-analogue approach also analyzes whether an action is legal or equitable to decide if a right to a jury trial is retained. Under this approach, if an analogue predating the 1963 constitution exits, it must still be determined whether the analogue incorporated the right to a jury trial. The cases supporting the historical-analogue approach require the existence of an analogue at common law that afforded the right to a jury trial at the time the 1963 constitution was adopted. "Common law" is generally read as the opposite of "statutory." But "common law" is also an antonym to "equitable." Black's Law Dictionary (5th ed.), at 251. The Seventh Amendment, U.S. Const., Am. VII, provides the federal constitutional right to a jury trial "[i]n suits at common law." In Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 41, 109 S.Ct. 2782, 2790, 106 L.Ed.2d 26 (1989), the United States Supreme Court held:

We have consistently interpreted the phrase "Suits at common law" to refer to "suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized and equitable remedies were administered." Parsons v. Bedford, 28 U.S. (3 Pet) 433, 447; 7 L.Ed. 732 (1830).

Accordingly, in the cases supporting the historical-analogue approach, the term "common law" is appropriately read as a contrast to equity. The requirement of these cases of a common-law analogue is therefore a requirement of a legal analogue. Further, several of the cases supporting the historical-analogue approach explicitly discuss the legal or equitable nature of the case before them. For example, in In re Colon, 144 Mich.App. 805, 818, 377 N.W.2d 321 (1985), this Court set forth this underlying principle:

In general, before the Constitution was adopted, there was a right to jury trial at law but not in equity.

Thus, under the historical-analogue approach, the denomination of an action as legal or equitable determines whether there is a right to a jury trial only if there existed before the adoption of the 1963 constitution a common-law cause of action. Accordingly, while both approaches ultimately look to the nature of the action, they differ in that the historical-analogue approach has the additional requirement that a similar common-law cause of action existed before the adoption of the 1963 constitution.

The language of the constitutional provision does not indicate which of these two approaches is correct. There is Michigan case law supporting both approaches. Accordingly, the case law offers no definitive guidance regarding which approach correctly construes the constitutional provision. Even individual cases are often ambiguous regarding which approach controlled the determination whether the right to a jury trial had been retained.

We found cases that arguably support the historical-analogue approach. Conservation Dep't v. Brown, 335 Mich. 343, 55 N.W.2d 859 (1952), involved the confiscation of an illegal fishing net. The Court noted that the statute at issue was silent regarding whether there was a right to a jury trial and held:

[T]he right to trial by jury is preserved in all cases where it existed prior to the adoption of the Constitution. The constitutional guaranty applies to cases arising under statutes enacted subsequent to adoption of the Constitution, which are similar in character to cases in which the right to jury trial existed before the Constitution was adopted....

The precise question presented, then, is whether the proceedings here are of such character that a jury trial would have been available before adoption of the Constitution. [Id. at 346-347, 55 N.W.2d 859 (citations omitted).]

The Brown Court noted that the proceedings at issue were not equitable in nature. Id. at 347, 55 N.W.2d 859. But we note that an action involving the confiscation of personal property is not an ordinary legal action. The Brown Court concluded:

We are not persuaded that this is a cause of action known to the common law in which a jury trial was accorded prior to adoption of the Constitution of this state. [Id. at 350, 55 N.W.2d 859.]

Several other cases that arguably support the...