Van Ermen v. Schmidt

• Decision Date: 02 May 1974
• Docket Number: No. 70-C-44.,70-C-44.
• Citation: 374 F. Supp. 1070
• Parties: Robert VAN ERMEN, Individually and on behalf of all those similarly situated, Plaintiff, v. Wilbur J. SCHMIDT, Individually and as Secretary of the Department of Health and Social Services, et al., Defendants.
• Court: U.S. District Court — Western District of Wisconsin

374 F. Supp. 1070

Robert VAN ERMEN, Individually and on behalf of all those similarly situated, Plaintiff, v. Wilbur J. SCHMIDT, Individually and as Secretary of the Department of Health and Social Services, et al., Defendants.

No. 70-C-44.

United States District Court, W. D. Wisconsin.

May 2, 1974.

Anthony J. Theodore, Corrections Legal Services Program, Madison, Wis., for plaintiff.

Atty. Gen. Robert Warren by James H. Petersen, Asst. Atty. Gen., Madison, Wis., for defendants.

OPINION AND ORDER

JAMES E. DOYLE, District Judge.

This is a civil action under 42 U.S.C. § 1983 for injunctive and monetary relief. Plaintiff has been granted leave to proceed in forma pauperis, 28 U.S.C. § 1915. Jurisdiction is invoked pursuant to 28 U.S.C. § 1343(3). Defendants have made a timely demand for trial by jury. Rule 38(b), Fed.R.Civ.P. Plaintiff has moved to strike the demand for jury trial.

In his amended and supplemental complaint, plaintiff alleges that from 1968 until March, 1972, he was confined at the Wisconsin State Prison, Waupun, and that since March, 1972, he has been confined at the Winnebago State Farm. The amended and supplemental complaint challenges the constitutionality of several prison regulations that were applied to plaintiff while he was at the Wisconsin State Prison. Acting pursuant to these regulations, the defendant corrections officials allegedly refused to deliver to plaintiff law books purchased by him and brought to the prison by his relatives, prohibited plaintiff from keeping law books from the prison library in his cell overnight and on weekends, and limited plaintiff's use of law books in the prison library to two hours per week. Plaintiff alleges that the application to him of these regulations denied him the opportunity to pursue post-conviction remedies while at the Wisconsin State Prison and violated his constitutional right of access to the courts. He seeks damages for himself and injunctive relief on his own behalf and on behalf of all inmates confined at institutions under the jurisdiction of the Wisconsin Division of Corrections.

I need not decide at this point whether the class action claim can be maintained or whether plaintiff's claim for injunctive relief has been mooted by his transfer to the Winnebago State Farm. For the reasons stated herein, I conclude that defendants are entitled to a jury trial on the damage claim. My conclusion would not be changed by the outcome of either the class action or mootness issues. For purposes of this opinion only, I will assume that the proposed class action can be maintained, and that the claim for injunctive relief is not moot.

Defendants argue that the Seventh Amendment preserves their right to a jury trial on the damage claim and that this right was expressly recognized by Congress in the original Civil Rights Act of 1871.¹ They also maintain that "legal" issues, issues cognizable at law prior to the merger of law and equity, are triable to a jury regardless of the presence of equitable issues in the same case. Beacon Theatres v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959); Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962); Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970). Noting that the Supreme Court has viewed § 1983 actions against a background of tort liability,² they contend that plaintiff's damage claim sounds in tort, that tort claims are traditional legal issues, and that defendants are entitled to a jury trial of those issues. Defendants cite a similar analysis employed by the Court of Appeals for this circuit in ruling that defendants in an action for damages under § 812 of the Civil Rights Act of 1968, 42 U.S.C. § 3612, were entitled to a jury trial.³ Rogers v. Loether, 467 F. 2d 1110 (7th Cir. 1972).⁴

Plaintiff contends that the legislative history of the Civil Rights Act of 1871 discloses the intent of Congress to bar jury trials in non-criminal suits under the Act; that § 1983 actions are "statutory" proceedings unknown to the common law and thus beyond the scope of the Seventh Amendment, N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937); that plaintiff's action is predominantly equitable and that the incidental damage claim would have been cognizable at equity; that juries reflect general public prejudices and are, therefore, ill-suited for deciding § 1983 actions seeking to vindicate unpopular claims. Lawton v. Nightingale, 345 F.Supp. 683 (N.D.Ohio, 1972).

Statutory Right to Jury Trial

42 U.S.C. § 1983 and its predecessors contain no specific provision for jury trial. Plaintiff urges that I read a denial of jury trial into the statute from debates in the Forty-Second Congress which preceded enactment of the Civil Rights Act of 1871. I find it unnecessary to delve into the legislative background since I conclude that the Act recognized that some civil actions arising under it would be tried to a jury and implied that the courts were to follow customary practice on the right to jury trial.

§ 2 of the Act proscribed combinations or conspiracies to obstruct enforcement of federal law or to interfere with judicial process. It provided civil, as well as criminal liability. § 5 of the Act, set out below,⁵ required an oath of jurors stating that they had not aided or taken part in any combination or conspiracy defined in § 2. Plaintiff contends that § 5 was mandated by the Sixth Amendment and directed only to jurors in criminal prosecutions under § 2. I do not agree. § 2 expressly provided for civil liability and § 5 governed "any suit, or proceeding," as well as prosecution, under the Act. It contemplated jury trial of some civil actions.

Further recognition of jury trial in civil actions is found in the § 1 provision for relief through "an action at law, suit in equity, or other proper proceeding for redress." These several sections strongly suggest that the broad remedial powers granted by the Act were to be exercised in accordance with customary procedure, including trial by jury. Since the customary procedure as to jury trial is determined by the Seventh Amendment, I must decide whether that Amendment guarantees the defendants a jury trial.

Constitutional Right to Jury Trial

The Seventh Amendment provides:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.

The right to a jury trial has been extended not only to those actions known to the common law at the time of passage of the Amendment in 1791 but also to all:

". . . 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. . . . In a just sense, the amendment then may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights." Parsons v. Bedford, 3 Pet. 433, 447, 7 L.Ed. 732 (1830) (emphasis in original), quoted in Ross v. Bernhard, 396 U.S. 531, 533, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970).

No distinction is made for purposes of jury trial between legal claims arising under the common law and legal claims arising under statutory law.⁶ Curtis v. Loether, 415 U.S. 189, 193-196, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974).

Where equitable and legal claims are joined in the same action and a jury trial is demanded, only the most extraordinary circumstances can justify a denial of a jury trial on the legal claims.⁷ Characterization of the legal claims as incidental to the equitable claims cannot justify striking the jury demand. Dairy Queen v. Wood, 369 U.S. 469, 470, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962). The right to a jury "depends on the nature of the issue to be tried rather than the character of the overall action footnote omitted." Ross v. Bernhard, 396 U.S. 531, 538, 90 S.Ct. 733, 738, 24 L.Ed.2d 729 (1962).

Plaintiff here seeks injunctive and monetary relief. Clearly, the injunctive claim is equitable and a jury is not required. There is no simple answer to the question of whether the damage claim requires a jury. Not every claim for monetary relief is triable to a jury as a matter of right.⁸ Traditionally, where a new cause of action was created by Congress, and nothing was said about the mode of trial, the courts looked to the "nearest historical analogy" at common law to decide whether there was a right to a jury. 9 Wright and Miller, Federal Practice and Procedure, Civil § 2302; cited with approval in Rogers v. Loether, 467 F.2d 1110, 1116 n. 20 (7th Cir. 1972). Two additional guides to the right to jury trial were suggested in Ross (396 U.S. at 538 n. 10):

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. Of these factors, the first, requiring extensive and possibly abstruse historical inquiry, is obviously the most difficult to apply. Citation omitted.

Curtis provides some clarification of the Ross footnote. While acknowledging the continued vitality of the historical approach, it makes clear that the nature of the relief sought is a more important test. 415 U.S. at 193-196. It is silent on the limitations of a jury as a guide to the legal nature of an issue.⁹

In the present action, both the relief sought and historical analogy indicate a right to jury trial. Plaintiff seeks money damages for an injury suffered. Such relief has customarily been awarded by a jury at law. The nearest historical analogy I have found to a damage claim for denial of access to the courts is a damage claim for denial of the right to...