Tuesday, September 20, 2011

The Forgotten Amendment

The Tea Party Movement seems to have forgotten precious guarantees of our United States Constitution or may purposely be ignoring it.  Tea Party members, who claim to be great patriots, are endorsing almost without exception the right-wing Republican candidates who seem to be hell-bent on destroying rights guaranteed to American citizens under the Seventh Amendment.  The Seventh Amendment reads as follows: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right to trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.”

While much of the dissatisfaction of colonial Americans arose from the unfairness of taxes unilaterally leveled by the king, those onerous taxes were made worse by the fact they would be enforced in a court of admiralty which leveled judgments on citizens without the benefit of a jury.  John Adams rightly and vigorously complained of the practice.  John Adams once said, “We shall confine ourselves, however, chiefly to the act of Parliament, commonly called the Stamp Act, by which a very burdensome, and, in our opinion, unconstitutional tax, is be laid upon us all; and we subjected to numerous and enormous penalties, to be prosecuted, sued for, and recovered, at the option of an informer, in a court of admiralty, without a jury.”

Tea Party candidates continue, seemingly, to embrace right-wingers who, in the name of tort reform, appear dedicated to wiping out or disabling any right to trial by jury in the United States.  The tort reform effort is not based on fairness but simply on money, and in some cases so-called efficiency.  

If one reviews the tort reform program outlined by the various tort reform organizations for the last legislative session, it quickly becomes apparent the bulk of their program is to do away with, avoid, or hamper the jury system in Texas.

Changes in the Worker Compensation Law in Texas have made it almost impossible for an injured worker to be represented by counsel and to obtain a jury finding on the extent or value of his or her injury.  Our Republican Supreme Court and Republican majorities in the House and Senate have embraced arbitration as an inexpensive way to resolve legal disputes.  Arbitration is generally billed as an agreement by which parties agree to resolve their differences with an impartial arbitrator whose decision is final and binding and not appeal able to any court.  The problem is that once one examines arbitration in reality, it is either one of those “small print” items slipped into a consumer’s contract or part of an employment agreement whereby the choice of arbitration is one-sided: Agree to it, or seek employment elsewhere.  Far too many arbitrators are beholden to large corporations and render favorable decisions in their favor or face the prospect of not being used as arbitrators in the future.

Another device tort reformers use to short-circuit being tried by a jury of one’s peers is the so called multi-district litigation provision.  This device allows a hand-picked judge to designate one judge, perhaps far from one’s home, to decide all cases of a similar nature.  This device has been successfully used against victims of asbestosis.  Designating one or two special courts far from one’s home where the trial must be held causes even people at the point of death with this dread disease to have their case disappear into the black hole of legal cases.  Oftentimes it ends up the case is not tried until the original litigant is dead, buried and his will probated.  

I’m certain this is not what our founding fathers had in mind when including the right of trial by jury in our national Constitution.  Adams commented on this type of legal device as well, saying, “So it is also in the trial of causes between party and party.  No man’s property or liberty can be taken from him till twelve men in his neighborhood have said upon oath, that by laws of his own making it ought to be taken away, that is, that the facts are such as to fall within such laws.”

Dressing up in period costumes with three-cornered hats, waving the flag and condemning taxes does not a patriot make.  The devices mentioned above to avoid jury trials were sold to the American people and Texans by selling the notion that ordinary citizens do not have sense enough to judge their peers.  Most tort reform measures represent a basic mistrust of twelve citizens who sit in judgment of the evidence and decide the facts of civil cases.  The mistrust of ordinary citizens is amplified by the fact that the past majority of cases heard by the Texas Supreme Court involving the question of a jury finding have been reversed by the nine Republican members.  

Our nine Supreme Court justices, who never saw or heard a witness in a case, seem to believe their judgment should prevail over the twelve citizens who did.  Out of 30 cases heard by the Supreme Court in recent times involving the question of an adequate jury finding of fact, approximately 22 have been reversed by the Court.  

Obviously, our Supreme Court does not agree with James Madison who once said, “...trial by jury in a civil case is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.”  Nor does it comport well with Thomas Jefferson who said civil jury trials are, “...the only anchor yet imagined by man, by which a government can be held to the principles of its constitution.”

1 comment:

  1. One of my proudest moments as an attorney in Parker's firm was my victory in the Third Court of Appeals in the case of McManus-Wyatt Produce Company v. Texas Department of Agriculture. It pops right up on a Google search. It was also one of the last opinions written by the late Justice Mack Kidd before his tragic death.

    I began my oral argument to the Court of Appeals by doing something you're not supposed to do: making a personal reference. I told the Court that I'm not from Texas, but that when I got here, one of the first things I came to love about Texas was its historic reverence for the right to trial by jury, which its Constitution says "shall remain inviolate." In this state you can still demand a trial by jury on a speeding ticket.

    The Court of Appeals reversed a lower court judgment against my client for over $140,000 and rendered judgment that the Department of Agriculture's funky administrative adjudication process for resolving disputes between produce growers and buyers had deprived my client of its constitutional right to a trial by jury on its contract claim against a carrot grower.

    I sure miss Mack Kidd. And hardly a day goes by that I don't wonder how (or for that matter, why) we've finessed our way around the clear language of the Constitution that in Texas, "the right to trial by jury shall remain inviolate."


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