Freissler v. State, Docket No. 17156

• Decision Date: 30 May 1974
• Docket Number: No. 2,Docket No. 17156,2
• Citation: 220 N.W.2d 141,53 Mich.App. 530
• Parties: Isolde FREISSLER, Plaintiff-Appellant, v. STATE of Michigan and State Highway Commission, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 141

220 N.W.2d 141

53 Mich.App. 530

Isolde FREISSLER, Plaintiff-Appellant, v. STATE of Michigan and State Highway Commission, Defendants-Appellees.

Docket No. 17156.

Court of Appeals of Michigan, Division No. 2.

May 30, 1974.

Released for Publication July 24, 1974.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George J. Platsis, Asst. Atty. Gen., for plaintiff-appellant.

C. J. Hurbis, Keyes, Creal & Hurbis, Ann Arbor, for defendants-appellees.

Before HOLBROOK, P.J., and ALLEN and VanVALKENBURG,* JJ.

ALLEN, Judge.

Plaintiff has appealed from the Honorable William R. Peterson's order denying plaintiff's motion for a jury trial and motion to consolidate the instant case with plaintiff's suit currently pending in the Washtenaw Circuit Court.

On October 2, 1970, plaintiff was the driver of a 1965 Mustang automobile, proceeding north on the northbound exit ramp from US--23, near that road's intersection with North Territorial Road. As she began her turn onto westbound North Territorial Road, her automobile was struck in the left door by a 1970 Chevrolet driven by a third party. Plaintiff in turn suffered serious injuries.

Plaintiff has filed the instant suit in the Court of Claims, seeking recovery against the Michigan Department of State Highways and the State of Michigan, and has alleged that defendants have violated their duties and obligations pursuant to M.C.L.A. § 691.1401 et seq.; M.S.A. § 3.996(101) et seq. Plaintiff has also sought recovery against the Washtenaw County Road Commission in the Washtenaw Circuit Court pursuant to M.C.L.A. § 224.21; M.S.A. § 9.121.

Plaintiff has alleged that the defendants, by means of a defective design and layout, have maintained a nuisance at the intersection of US--23 and North Territorial Road. At the pretrial, plaintiff requested a jury trial in the Court of Claims case and also moved to consolidate the instant case with the case of Freissler v. County of Washtenaw and Board of County Road Commissioners of Washtenaw County, case no. 6942. The motions were denied and our Court granted plaintiff's delayed application for leave to appeal on September 20, 1973.

Relying upon Reich v. State Highway Department, 386 Mich. 617, 623, 194 N.W.2d 700 (1972), plaintiff argues that she was denied equal protection of the laws when Judge Peterson denied her request for a jury trial pursuant to M.C.L.A. § 600.6443; M.S.A. § 27A.6443. Plaintiff has maintained a similar argument as far as her request to consolidate the instant case with the Washtenaw Circuit Court case is concerned.

Reich v. State Highway Department, Supra, held that the 60-day notice requirement of M.C.L.A. § 691.1404; M.S.A. § 3.996(104) was 'barred by the constitutional guarantees of equal protection'. In so holding, Reich said:

'The object of the legislation under consideration is to waive the immunity of governmental units and agencies from liability for injuries caused by their negligent conduct, thus putting them on an equal footing with private tortfeasors. However, the notice provisions of the statute arbitrarily split the natural class, I.e., all tortfeasors, into two differently treated subclasses: private tortfeasors to whom no notice of claim is owed and governmental tortfeasors to whom notice is owed.

'This diverse treatment of members of a class along the lines of governmental or private tortfeasors bears no reasonable relationship under today's circumstances to the recognized purpose of the act. It constitutes an arbitrary and unreasonable variance in the treatment of both portions of one natural class.' 386 Mich. 617, 623, 194 N.W.2d 700, 702.

Relying upon the above, plaintiff has argued that there is no justification for providing a jury trial for plaintiffs who are seeking recovery against a county road commission or a particular municipality or in fact a private individual, while denying a jury trial in a case such as the instant one involving the instant defendants. Plaintiff argues that because the right to a jury trial is a 'fundamental interest' the state must offer a 'compelling interest' to support such a discrimination.

As noted in Governor v. State Treasurer, 389 Mich. 1, 25, 203 N.W.2d 457, 468 (1972), where a classification affects a fundamental interest, that classification must be 'necessary for the achievement of a 'compelling state interest." However when the interest at issue is 'an ordinary one, a court only inquires whether there is a 'rational' relationship between the classification established by the statute under scrutiny and a legitimate state objective'. 389 Mich. 1, 25, 203 N.W.2d 457, 468. Kriger v. South Oakland County Mutual Aid Pact, 49 Mich.App. 7, 11, 211 N.W.2d 228 (1973), in the course of holding that the doctrine of governmental immunity, as enunciated in M.C.L.A. § 691.1407; M.S.A. § 3.996(107), does not violate the equal protection clause of U.S. Const. Am. XIV, said that 'the 'rational basis' test applies when the law allegedly infringing equal protections creates no fundamental rights'. Kriger also pointed out that a person in plaintiff's position has the burden to show that the classification at issue 'has no reasonable basis'. 49 Mich.App. 7, 12, 211 N.W.2d 228, 230. In light of the above principles, we now turn to a discussion of the merits of plaintiff's claim.

Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 1007, 39 L.Ed.2d 260, 265, fn 6 (1974), recently noted that the right to a jury trial in a civil case, U.S.Const. Am. VII, has never been held to be 'an element of due process applicable to state courts through the Fourteenth Amendment'. The instant case does not, therefore, involve the alleged denial of a Federal constitutional right.

According to Const.1963, art. 1, § 14, 'The right of trial by jury shall remain'. Similar language was found in Const.1908, art. 2, § 13 and Const.1850, art. 6, § 27. Const.1835, art. 1, § 9 said 'The right of trial by jury shall remain inviolate'. Does the presence of this constitutional tradition mean that there is a fundamental right to a jury trial in the Court of Claims?

There is no right to a jury trial in the Federal Court of Claims. McElrath v. United States, 102 U.S. 426, 26 L.Ed. 189 (1880), involved a suit in the Court of Claims by a person seeking 'settlement of his account as first lieutenant in the Marine Corps'. It was argued that the Seventh Amendment was violated when the Court of Claims was allowed to render judgment without a jury. McElrath held to the contrary, stating:

'There is nothing in these provisions which violates either the letter or spirit of the Seventh Amendment. Suits against the government in the Court of Claims, whether reference be had to the claimant's demand, or to the defense, or to any set-off, or counter-claim which the government may assert, are not controlled by the Seventh Amendment. They are not suits at common law within its true meaning. The government cannot be sued, except with its own consent. It can declare in what court it may be sued, and prescribe the forms of pleading and the rules of practice to be observed in such suits. It may restrict the jurisdiction of the court to a consideration of only certain classes of claims against the United States. Congress, by the act in question, informs the claimant that if he avails himself of the privilege of suing the government in the special court organized for that purpose, he may be met with a set-off, counter-claim, or other demand of the government, upon which judgment may go against him, without the intervention of a jury, if the court, upon the whole case, is of opinion that the government is entitled to such judgment. If the claimant avails himself of the privilege thus granted, he must do so subject to the conditions annexed by the government to the exercise of the privilege. Nothing more need be said on this subject.' 102 U.S. 426, 440, 26 L.Ed. 189, 192.

In a similar vein, Michigan State Bank v. Hastings, 1 Doug. 225, 236; 41 Am.Dec. 549 (1844), said:

'The principle is well settled that, while a state may sue, it cannot be sued in its own courts, unless, indeed, it consents to submit itself to their jurisdiction. This is done in cases where the state claims something in opposition to a claim set up by an individual, and where the controversy depends upon the solution of legal principles involved in intricacy and doubt. These questions can be best determined by the judiciary; and an act of the legislature, conferring jurisdiction upon the courts in the particular case, is the usual mode by which the state consents to submit its rights to the judgment of the judiciary.'

Conservation Department v. Brown, 335 Mich. 343, 346, 55 N.W.2d 859 (1952), noted that the right to jury trial in Michigan has been 'preserved in all cases where it existed prior to the adoption' of the above-mentioned provisions of the Michigan Constitutions. As indicated in Hastings, supra, there was no common-law right to maintain an action against the state, and consequently there was no common-law right to a jury trial in such instances. Plaintiff's cause of action was specifically created by statute, M.C.L.A. § 691.1402; M.S.A. § 3.996(102), and was 'unknown to the legal system of this state when the Constitution was adopted'. 335 Mich. 343, 349--350, 55 N.W.2d 859, 862. We conclude that there is no fundamental right to a jury trial in the Court of Claims under Const.1963, art. 1, § 14.

Since a fundamental right is not involved, we must determine if the 'scheme' of M.C.L.A. § 691.1410; M.S.A. § 3.996(110) and M.C.L.A. § 600.6443; M.S.A. § 27A.6443, by which plaintiff must proceed with her cause of action against the State Highway Department in a nonjury trial in the Court of Claims 'rationally furthers some legitimate, articulated state purpose and therefore does not constitute an invidious discrimination in violation' of the constitutional guarantees of equal protection of the laws. ¹ San Antonio...