Dalis v. Buyer Advertising, Inc.

• Decision Date: 11 July 1994
• Citation: 636 N.E.2d 212,418 Mass. 220
• Parties: , 65 Fair Empl.Prac.Cas. (BNA) 801 Victoria DALIS v. BUYER ADVERTISING, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 212

636 N.E.2d 212

418 Mass. 220, 65 Fair Empl.Prac.Cas. (BNA) 801

Victoria DALIS v. BUYER ADVERTISING, INC.

Supreme Judicial Court of Massachusetts,

Middlesex.

Submitted March 8, 1994.

Decided July 11, 1994.

Duncan S. Payne, Boston (Arthur P. Menard with him) for the defendant.

Gerald T. Anglin, Boston (Catherine Sheedy-McGonagle with him) for the plaintiff.

Anne L. Josephson, Sarah Wunsch, Boston & Alice Zaft, Springfield, for Civil Liberties Union of Massachusetts & another, amici curiae, submitted a brief.

Barbara C. Johnson, pro se, amicus curiae, submitted a brief.

Before LIACOS, C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY, JJ.

ABRAMS, Justice.

At issue is whether the plaintiff is entitled, as a matter of State constitutional right, to a trial by jury in an action alleging discrimination based on gender. The plaintiff, Victoria Dalis, claims that she was discharged from her employment because she was pregnant. She filed a complaint against her employer, Buyer Advertising, Inc. (defendant), alleging violations of G.L. c. 93, § 102 (1992 ed.) (equal rights act); G.L. c. 149, §§ 105A-105C (1992 ed.) (wage discrimination based on gender); G.L. c. 149, § 105D (1992 ed.) (maternity leave act); and G.L. c. 151B, § 4(1) (1992 ed.) (gender discrimination in employment). In her complaint, the plaintiff moved for a jury trial. ¹

The defendant moved to strike the jury demand, claiming that Dalis was not entitled to a trial by jury under any of the cited statutes. A judge in the Superior Court denied the defendant's motion. The defendant appealed to a single justice of the Appeals Court. Citing inconsistent decisions in the Superior Court, the single justice reported the matter to a panel of the Appeals Court. We allowed the defendant's application for direct appellate review. We conclude that the plaintiff is entitled to a trial by jury on most of her claims under art. 15 of the Massachusetts Declaration of Rights. Therefore, we affirm the denial of the defendant's motion.

The plaintiff's claim under art. 15 of the Declaration of Rights. ² Article 15 "preserves the 'common law trial by jury in its indispensable characteristics as established and known at the time the Constitution was adopted' in 1780." Department of Revenue v. Jarvenpaa, 404 Mass. 177, 185-186, 534 N.E.2d 286 (1989). Article 15 does not preserve "the minor details or unessential formalities of the trial by jury as it then existed either in England or here." Bothwell v. Boston Elevated Ry., 215 Mass. 467, 473, 102 N.E. 665 (1913). The article must be construed with "flexibility in its adaptation of details to the changing needs of society without in any degree impairing its essential character." Id. at 477, 102 N.E. 665.

The language of art. 15 sweeps broadly: "In all controversies concerning property, and in all suits between two or more persons, ... the parties have a right to a trial by jury ..." (emphasis added). The exception is narrowly defined: "[E]xcept in cases in which it has heretofore been otherways used and practised." Thus, according to the language of art. 15, the "sacred" method for resolving all manner of cases and controversies was trial by jury unless the case was one in which a court of equity in either England or Massachusetts would have exercised jurisdiction in 1780. See Parker v. Simpson, 180 Mass. 334, 355, 62 N.E. 401 (1902); Stockbridge v. Mixer, 215 Mass. 415, 418, 102 N.E. 646 (1913); In re Acushnet River & New Bedford Harbor, 712 F.Supp. 994, 1009-1010 (D.Mass 1989).

The jury system, as the "sacred" method for resolving factual disputes, is the most important means by which laypersons can participate in and understand the legal system. Commonwealth v. Canon, 373 Mass. 494, 516, 368 N.E.2d 1181 (1977), cert. denied, 435 U.S. 933, 98 S.Ct. 1510, 55 L.Ed.2d 531 (1978). It brings the "rules of law to the touchstone of contemporary common sense." Id., quoting 1 W. Holdsworth, A History of English Law 348-349 (3d ed. 1922). "Jurors bring to a case their common sense and community values; their 'very inexperience is an asset because it secures a fresh perception of each trial, avoiding the stereotypes said to infect the judicial eye.' " Parklane Hosiery Co. v. Shore, 439 U.S. 322, 355, 99 S.Ct. 645, 664, 58 L.Ed.2d 552 (1979) (Rehnquist, J., dissenting), quoting H. Kalven & H. Zeisel, The American Jury 8 (1966).

The plaintiff's sex discrimination claim falls squarely within the language of art. 15. It is a suit between two persons which clearly sets forth a controversy concerning property. Parker v. Simpson, supra, 180 Mass. at 345, 62 N.E. 401. Next, we must determine whether the exception in art. 15 is applicable. We examine whether the plaintiff's claim is analogous, in either subject matter or remedy sought, to cases within the court's equity jurisdiction, as it existed at the time of the adoption of the Constitution. See Parker v. Simpson, supra at 355, 62 N.E. 401. See also Powers v. Raymond, 137 Mass. 483, 485-486 (1884); Commonwealth v. Mongardi, 26 Mass.App.Ct. 5, 8, 522 N.E.2d 984 (1988).

The plaintiff does not seek primarily equitable relief. ³ Nor is the nature of her claim analogous to any case which was traditionally heard in a court of equity. Thus, the plaintiff has a right to a jury trial. See Gallagher v. Wilton Enters., Inc., 962 F.2d 120, 124 (1st Cir.1992). Compare Department of Revenue v. Jarvenpaa, supra, 404 Mass. at 185-186, 534 N.E.2d 286 (plaintiffs not entitled to a jury trial because traditionally paternity and child support claims were not tried before a jury).

The plaintiff's sex discrimination claim is analogous to common law actions sounding in both tort and contract. See Conway v. Electro Switch Corp., 402 Mass. 385, 388, 523 N.E.2d 255; Gallagher v. Wilton Enters., Inc., supra at 122-123 ("Courts have routinely held that discrimination suits in general, and employment discrimination suits in particular, are analogous to either of two common law causes of action [tort and contract]"). See also Beesley v. Hartford Fire Ins. Co., 717 F.Supp. 781, S.C., 723 F.Supp. 635, 652 (N.D.Ala.1989) (Seventh Amendment guarantees a jury trial for plaintiffs in Title VII sex discrimination suits for lost wages). ⁴ The United States Supreme Court has commented that "[a]n action to redress racial [or gender] discrimination may also be likened to an action for defamation or intentional infliction of mental distress." Curtis v. Loether, 415 U.S. 189, 195-196 n. 10, 94 S.Ct. 1005, 1009 n. 10, 39 L.Ed.2d 260 (1974). ⁵

Under G.L. c. 151B, § 9 (1992 ed.), the plaintiff may seek both legal and equitable remedies for violations of G.L. c. 151B, § 4. ⁶ If the plaintiff prevails, she may recover monetary damages for her economic losses as well as for mental anguish. See College-Town, Div. of Interco, Inc. v. Massachusetts Comm'n Against Discrimination, 400 Mass. 156, 169, 508 N.E.2d 587 (1987). In egregious cases, the statute also provides the legal remedy of punitive damages. See G.L. c. 151B, § 9. The statute clearly affords the plaintiff the "legal remedy of compensatory damages." Conway v. Electro Switch Corp., 402 Mass. 385, 387, 523 N.E.2d 255 (1988).

The defendant concedes that the plaintiff's sex discrimination claim is analogous to actions at common law, but argues that, absent clear legislative direction, the court should not imply a right to a jury trial. The issue is not whether we should imply a right to a jury trial but whether art. 15 preserves and protects the right to a jury trial on the plaintiff's claims. Our longstanding rule is that the boundaries of equity jurisdiction "ought not to be widened by judicial decision ... [because] the constitutional right of trial by jury would thereby become correspondingly narrowed." Parkway, Inc. v. United States Fire Ins. Co., 314 Mass. 647, 651, 51 N.E.2d 436 (1943).

The defendant relies on Nei v. Burley, 388 Mass. 307, 314, 446 N.E.2d 674 (1983), to support its position that there is no constitutional right to a trial by jury on the plaintiff's claims. We do not agree. In Nei, we said that the court should be "hesitant to imply a right to a jury trial for the sui generis causes of action for unfair or deceptive practices in the absence of legislative direction." Id. at 314, 446 N.E.2d 674. General Laws c. 93A (consumer protection statute) entitles plaintiffs to relief where traditional legal remedies were considered inadequate by the Legislature. Unlike a traditional common law action for fraud, consumers suing under c. 93A need not prove actual reliance on a false representation, or that the defendant knew that the representation was false. Slaney v. Westwood Auto, Inc., 366 Mass. 688, 703, 322 N.E.2d 768 (1975). An " 'unfair or deceptive act or practice' goes far beyond the scope of the common law action for fraud and deceit." Id. at 703, 322 N.E.2d 768. We determined that any analogies between "unfair and deceptive practices" and common law claims for fraud and deceit were inappropriate. Nei v. Burley, supra at 313, 446 N.E.2d 674. Thus, we concluded that a plaintiff alleging a violation of G.L. c. 93A is not constitutionally entitled to a trial by jury. ⁷

The outcome in Nei turned on the "equitable nature of the relief" sought under c. 93A. Nei, supra at 315, 446 N.E.2d 674. By contrast, the nature of the plaintiff's claim is more analogous to actions at common law, and the relief sought by the plaintiff is predominantly legal. Nei is distinguishable on that basis.

Under the broad language of art. 15, the plaintiff's right to a jury trial is protected. The exception set forth in art. 15 does not apply because the plaintiff's rights and remedies are similar to those traditionally treated as actions at law. Under art. 15, the plaintiff is constitutionally entitled to a trial by jury for her claim of employment discrimination based on sex. The judge correctly denied the defendant's motion to strike the plaintiff's ...