State ex rel. Diehl v. O'Malley

• Decision Date: 28 January 2003
• Docket Number: No. SC 84659.,SC 84659.
• Parties: STATE ex rel. Kathleen DIEHL, Relator, v. The Honorable John R. O'MALLEY, Judge, Division 6, Circuit Court of Jackson County, Missouri, Respondent.
• Court: Missouri Supreme Court

95 S.W.3d 82

STATE ex rel. Kathleen DIEHL, Relator, v. The Honorable John R. O'MALLEY, Judge, Division 6, Circuit Court of Jackson County, Missouri, Respondent.

No. SC 84659.

Supreme Court of Missouri, En Banc.

January 28, 2003.

Martin M. Meyers, Kansas City, for Relator.

Alok Ahuja, Rosalee M. McNamara, Gail A. Goeke, Robert W. McKinley, Kansas City, for Respondent.

John D. Lynn, St. Louis, for Amicus Curiae St. Louis Chapter of the National Employment Lawyers Association.

Howard C. Wright, Jr., Carl S. Yendes, Springfield, for Amicus Curiae Cities of Springfield, Kansas City and St. Joseph, Missouri and The MO Municipal League.

Jerry M. Hunter, St. Louis, Mark A. Jess, Kansas City, for Amicus Curiae Associated Industries of MO Greater K.C. Chamber of Commerce, MO Bankers Assn., MO Chamber of Commerce & Industry and The National Assn. of Manufacturers.

MICHAEL A. WOLFF, Judge.

Does Missouri's constitutional guarantee of a right to jury trial apply to an action for damages under the Missouri Human Rights Act?

Kathleen Diehl, plaintiff in the circuit court and relator here, seeks actual and punitive damages against her former employer, NASD Regulation, Inc. Her petition, which seeks damages only and not equitable relief, is based upon the human rights act's provisions prohibiting discrimination on the basis of age, sex, and retaliation for filing a charge of discrimination. Actual damages pleaded include lost wages and emotional distress.

Diehl's petition alleged that she had complied with the act's requirement of making her complaint first to the Missouri Commission on Human Rights. The commission, in accordance with section 213.111.1,¹ issued her a "right to sue" letter, upon her request, after her complaint had been pending before the commission for more than 180 days.

In the circuit court action, Diehl filed a motion for jury trial, which the respondent judge overruled. This Court issued its preliminary writ of prohibition, pursuant to its jurisdiction in art. V, sec. 4 of the Missouri Constitution.²

For reasons that follow, this Court holds that Diehl has a right under the Missouri Constitution, art. I, section 22(a), to have her Missouri Human Rights Act civil action, for damages only, tried by a jury. This Court's preliminary writ is made absolute.

The Right of Trial by Jury

Art. I, sec. 22(a) of the Missouri constitution provides that "the right of trial by jury as heretofore enjoyed shall remain inviolate; ...." Quite simply, the words of the provision is intended to guarantee a right, not to restrict a right. The choice of words, particularly the use of the words "remain inviolate," is a more emphatic statement of the right than the simply stated guarantee written some 30 years earlier as the 7th Amendment to the United States Constitution that "... the right of trial by jury shall be preserved, ..."

Though the 7th Amendment does not apply to the states,³ its use of the word "preserved" invites the same kind of historical analysis as the Missouri provision. The original Missouri Constitution of 1820 provided: "That the right of trial by jury shall remain inviolate." Article XIII, sec. 8. The 1875 Constitution added the phrase "as heretofore enjoyed," which appears to keep the year 1820 as the point of reference. Based on precedents, the parties in this case agree that the year 1820 is the point of reference.

The Historical Analysis

The historical analysis is an inquiry as to whether Diehl's civil action for damages is the kind of case that carried a right of trial by jury in 1820. The respondent trial judge, represented here by counsel for the defendant employer, argues that the right of jury trial only applies to specific claims that were recognized by the law in 1820 and not to actions — such as the claim under the human rights act involved here — that came into existence after 1820. The employer would limit jury trials to those specific claims triable in common law courts in 1820.

The right to trial by jury predates Missouri's statehood and has existed here from the time the United States acquired jurisdiction over the Louisiana Territory. The Louisiana Territory includes the area ceded by France to the United States in the treaty of 1803 that became the state of Missouri in 1821.⁴ The first provision for the right to jury trial was enacted for the Louisiana Territory in March 1804. It provided for jury trials in civil cases if either party requested it. Mo. Terr. Laws 4, at 5 (1804). After establishment of the Louisiana territorial government, the territorial laws provided for jury trials in "all civil cases of the value of one hundred dollars ... if either of the parties require it." Mo. Tern Laws 58, sec. 13. The provision for jury trial in the territorial laws pre-dates by over ten years the passage of the territorial statute in 1816 adopting the common law in the territory of Missouri.⁵ From the status of the right as of 1820, the simple analysis is whether the action is a "civil action" for damages. If so, the jury trial right is to "remain inviolate."

A review of the cases since the state's Constitution of 1820 makes clear that the exceptions recognized for the right of jury trial are cases under the courts' equitable jurisdiction, and those claims that are adjudicated in administrative proceedings. The right to trial by jury exists in actions at law but not in actions in equity. Jaycox v. Brune, 434 S.W.2d 539, 542 (Mo.1968); State ex rel. Willman v. Sloan, 574 S.W.2d 421, 422 (Mo. banc 1978). An action that is equitable in nature, as viewed in historical perspective and with respect to the equitable remedy sought, does not come within the jury trial guarantee. Hammons Ehney, 924 S.W.2d 843, 846 (Mo. banc 1996);⁶ see also Krummenacher v. Western Auto Supply Co., 358 Mo. 757, 217 S.W.2d 473 (1949); Lee v. Conran, 213 Mo. 404, 111 S.W. 1151 (1908).

The question can be posed in one of two ways: what is an action at law to which the jury trial guarantee applies, or conversely, what is an equitable action to which the guarantee does not apply? Given the pre-1820 guarantee of a jury in "civil cases," it may be most faithful to the origins of the jury trial right to consider the right as generally applicable, especially where the relief sought is the traditional common-law remedy of damages, and to treat equity cases as the exception.

To answer the law-or-equity question, "we must first determine what the issue tendered by the pleadings is, and after doing so, we must then ascertain how that issue was triable before the adoption" of the constitutional jury trial guarantee. Lee v. Conran, 111 S.W. at 1153. In reviewing the cases from the past 183 years, it is quite clear that, ordinarily, a suit that seeks only money damages is an action at law rather than equity. Bank of Missouri v. Anderson, 1 Mo. 244 (1822); Meadowbrook Country Club v. Davis, 421 S.W.2d 769, 772 (Mo. banc 1967); Jaycox, 434 S.W.2d at 542; Willman, 574 S.W.2d at 422.

When examining whether a claim based upon a later-enacted statute or common law principle is of the kind that was tried by jury in 1820, the proper historical analysis dates back at least to Briggs v. St. Louis & S.F. Ry. Co., 111 Mo. 168, 20 S.W. 32 (1892). Briggs involved a claim arising under a statute passed in 1885. This Court dealt squarely with the argument that a claim based on a statute enacted after 1820 was not an action to which the jury trial provision applies. The constitutional right to a jury trial "is implied in all cases in which an issue of fact, in an action for the recovery of money only, is involved, whether the right or liability is one at common law or is one created by statute." Id. at p. 33.

Similarly, in Bates v. Comstock Realty, 306 Mo. 312, 267 S.W. 641 (1924), this Court rejected a contention that an action on a special tax bill was not triable by jury because such proceedings were unknown at the common law. "The right of trial by jury as it existed at common law," this Court said, "may well include the right to such a trial not only in common law action, so called, but those of like nature in which that mode of trial is appropriate." Id. at 644. The question is whether the proceeding "is analogous to an action at common law, or whether it in the nature of a suit in equity." Id.

The fact that an action is brought pursuant to statute, whether in existence at the time of the 1820 Constitution or enacted later, does not exclude the prospect of a right to jury. The question is, according to Bates: is the claim "analogous to" actions brought at the time of the state's original 1820 Constitution?

Exercise of the right to jury trial in the 19th century is illustrated by the two circuit court trials of a case brought by one of Missouri's most famous litigants, Dred Scott. Scott, a slave who had journeyed with his master to free soil, sued for his freedom under a statute authorizing such suits. The suit in form was an action for trespass, for assault and false imprisonment, and the relief sought was nominal damages of ten dollars, in accordance with the 1844-5 statute under which Scott brought suit.⁷ Both of Dred Scott's trials in the Circuit Court of the City of St. Louis, in 1847 and 1850, were jury trials because, although they were actually suits for freedom and might sound like actions in equity, the claim was trespass, assault, and false imprisonment, the relief sought was damages and, thus, the action was at law.⁸

The present case — an action for damages for discrimination based upon age, sex and retaliation for filing a discrimination complaint — is analogous to those kinds of actions triable by juries at the time of the Constitution of 1820. Actions for trespass, which included actions for a variety of wrongs to the person, were tried to juries in the courts in 1820.⁹ This form of action, now commonly referred to categorically as torts, fits into the analytical framework described in the Briggs case...