Colgrove v. Battin

LOCATION:Allegheny County District Court

DOCKET NO.: 71-1442
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 413 US 149 (1973)
ARGUED: Jan 17, 1973
DECIDED: Jun 21, 1973

Gale Crowley – for respondent
Lloyd J. Skedd – for petitioner

Facts of the case


Audio Transcription for Oral Argument – January 17, 1973 in Colgrove v. Battin

Warren E. Burger:

We’ll hear arguments first this morning in No. 71-1442, Colgrove against Battin.

Mr. Skedd you may proceed whenever you’re ready.

Mr. Chief Justice and may it please the Court.

The Montana District Court adopted a rule in September, at least it was filed in September of 1971, requiring all civil case to be tried before a six-man jury.The — this case was a liable —

Warren E. Burger:

Six-man jury or —

Six-man or women —

Warren E. Burger:

— six-member — member jury.

Yes, sir.

The plaintiff that is representing, objected to the six-man jury.

We went to the circuit court and the circuit court refused to mandate the judge and we’re here now on certiorari.

The questions that we have are simply that, one, the six-man jury, six-person jury adopted by the local — by the local District Court, as a local rule, offends the Constitution, Seventh Amendment, and the second argument being that the six-man or six-person jury offends the Rules of Civil Procedure.

Now, on regard the first argument then the constitutional argument, the Seventh Amendment, of course, provides that in civil cases or the sum of $20 entitled to a jury as a common law.

Now, the word “common law” is used twice in that particular section and as was pointed in note 30 in the — in Williams versus Florida.

We believe that that — that reference to the common law at that time when it was adopted, means that there’s a constitutional right to 12 persons on a jury unless there’s a stipulation as provided by the rules that were adopted and which were forwarded by this Court to Congress.

Now, Capital Traction versus Hof decided in 1899 that a 12-person jury was a common law jury.

It’s well documented in that case and as far as I know, that is still the law, the law as pronounced by this Court.

And for a District Court to adopt a local rule overruling a decision of this Court seems to me to offend and be irregular.

The second portion then of the argument relating to the rules, Rule 1 under the provisions under the Act of Congress, that’s 28 U.S.C. 2072 and adopted by this Court provides that this rule shall govern the district courts, the Rules of Civil Procedure, a call when they were adopted in 1963.

And at that time, there was some questions by members of this Court as to whether or not they should be adopted because of the question of juries.

But at any rate, they were adopted and Rule 48 of those rules provides very clearly, and I don’t see how it can be read otherwise, that the parties may stipulate to a jury of less than 12 persons.

Now, in this case, the parties did not stipulate.

Both parties wanted a 12-man jury.

In Rule 48, it does not say nor imply that the Court — the local court may say, “You take less than 12 jurors.”

For example, you could not stipulate to 11, 10, 8, you would be — you are bound by our rule, in our court 13(d), the Six-Man Rule to six jurors.

You couldn’t stipulate to three.

We believe that that was not the intent of the rule and we believe that Congress in passing on those rules had definitely in mind a 12-man jury.

William H. Rehnquist:

Well, what is it that would prevent you from stipulating to three or four even under your local rule?

The Rule 13(1) says, “A civil jury shall consist of six.”

It’s a —

William H. Rehnquist:

Well, what if — what if you’d offer to stipulate to four before Judge Battin?

William H. Rehnquist:

Do you think he would have turned you down on the basis of that rule?

Well, I’m confident that Judge Battin would agree.

Gentlemen, that — the rule itself is, what I’m speaking of, Your Honor, it states that it will — shall consist of six persons.I think it does away effectively at least with a stipulation above the number 6, 7, 8, 9, 10 or 11 or 12.

William H. Rehnquist:

You and your opponent were both going to stipulate to 12, I take it.

That — that are — yes, Your Honor, we made the motion for a 12-man jury.

And the — the Court, of course, said no, “We’re going to trial with a six-man jury as provided by the new rule.”

In the circuit court, Ninth Circuit Court, the opponents, the defendants joined with us and said they wanted a 12-man jury, they said at that time.

But rule — the — there have been many briefs filed in this that are much deeper in — better than I can write them by the civil liberties and some others we have with regard to whether or not a six-man jury is a fair cross section of the — the people.

I mean whether or not you are not losing some rights by taking a six-man jury.

They say there is evidence now written by Professor Zeisel or, whatever his name is, that conclusively shows that with 12 men, you get a more diverse representation than you would with six.

Thurgood Marshall:

And you get a still large money if you to had 50.

That’s right, Your Honor.

And whether or not at these times they state in their brief, and I believe, the amount of jurors should not be increased rather than decreased to get a fair representation is a good question, but that as the Court said in Williams.

In Williams they said it’s — they leave it to the legislature.

They leave it to the legislature and to the — to the Congress to determine the policy of the number of jurors.

And I think that’s a proper allocation with after — many people testifying, after much evidence taken rather than adopting a local rule and saying you have a six-man jury by doing that.

William H. Rehnquist:

Mr. Skedd, was there any point made in the Ninth Circuit as to whether this kind of issue is properly raisable by mandamus?

No, there was not, Your Honor.

As a matter of fact, the Court stayed, the District Court stayed the trial of this case until the mandamus came one way or the other would come down.

That was filed in October of 1971 and the circuit court handed its decision down in — in March.

And because of the — of this petition and because of the proceedings had here with regard the six-man jury in the federal courts in the State of Montana without stipulation, they haven’t tried any six-man jury as far as I know.

But our position then is that Congress authorized and allowed this Court to adopt rules for the District Court.

If this Court proposed the rule to Congress assuming the constitutional problems, then it would be properly presented and become a — have the force of law.

This Court could do it and Congress reviews it within the 90 days, but certainly a local court by local rule cannot overturn a federal rule properly presented by — by the Court.

We say that this case should be returned such that the — the petitioner is allowed to have a 12-man hearing and try his case.

Warren E. Burger:

Thank you, Mr. Skedd.

Mr. Crowley.

Mr. Chief Justice and gentlemen of the Court.

It’s obvious from reading the majority and the concurring and the dissenting opinions in all of the cases which have considered both of the Sixth and Seventh Amendments that you gentlemen have a far, deeper and broader appreciation of the constitutional history than we do and there will be no rehash.

There are a few very brief highlights that I think are essential to shed light on a point which is not covered in my brief and which I think you gentlemen should consider in deliberating in this case when we come to it.

Now, I like very, very much the — the description of an impartial jury under the American tradition that you find in the Ballard case and I think we can start out with these two basic consumptions that the selective consistency as well as the qualification competency of a jury is vital and essential as ingredients of a fair and impartial jury.

And having those two points in mind, let’s go back for a few minutes to the period of time between the Miracle at Philadelphia and the date of September 24, 1789 when the Federal Judiciary Act was first enacted, and the date of September 25, 1789 when the Bill of Rights was adopted.

Now we all know that at the original convention, because apparently of two things, the great fear of our people of concentrating in an overall federal control that might result in new tyranny against them, and probably more importantly, because of the great differences in jury practice that existed between the States, they could not agree on any single federal standard of jury consistency, so nothing was done.

And then came the great hue and cry throughout the land.

Our people wanted the protection of the Bill of Rights in writing.

They didn’t want to rely on promises of legislation and the like and that was accomplished at the first Congress.

Again, we find that at that time because of the fear of a centralized federal control, all efforts in the promulgation of the Seventh Amendment to provide that the jury shall be as it was heretofore or it shall have the requisites as they were before were defeated.

And — and that First Congress bared down to its barest fundamental essential in simple and unambiguous language.

The preservation of the right in these words.

In actions that common law their right of trial by jury shall be preserved.

And we have to then construe what the — what they did and what they rejected with the language that we find in that Federal — first Federal Judiciary Act.

Now, there were three places in that Act where they specified clearly, three sections that issues of facts shall be tried by a jury.

And then we come to the all important Section 29 of the Federal Judiciary Act which, I think, has to be construed along with the Seventh Amendment.

And keeping in mind these two elements, these two vital ingredients of selective consistency and qualification competency that we are all agreed upon.

Now, subsection (a) of the Federal Judiciary Act of Section 29 provided that in cases punishable by death, the trial shall be in the county where the offense was committed, and if for any reason it’s too inconvenient to hold a trial in that county, the trial shall be held at some place in the district and 12 head of jurors shall be summoned from thence.

The only place in the Constitution and the only place in the Federal Judiciary Act that you find the number of 12, and it was confined to actions of crimes punishable by death.

And then we go subsection (b) which I — I think is of great importance to you and your deliberations here.

Now, keeping in mind that the traditional American jury up until that time was — consisted solely of 12 white male citizens, and are keeping in mind the fear that our people had of the — of devising a centralized federal consistency that would be controlling overall, and the differences in practices, they provided in the Federal Judiciary Act, “And jurors in all cases and the courts of the United States shall be designated by lot, according to the mode of forming juries therein now practiced, so far as the laws of the same shall render such designation practicable and the jurors shall have the same qualifications as our requisite for jurors by the laws of a State, of which they are citizens and shall be returned from time to time so as to have an impartial trial.

There are our two ingredients of selective consistency and qualification competency in there.

No set federal standard because they couldn’t agree on it in the Seventh Amendment.

All they could agree on in the Seventh Amendment was the — the preservation of the basic right to a trial by jury and nothing more.

Now, speculate with me for one moment.

Let’s go back to the time this — this provision was enacted in the Federal Judiciary Act.

Supposing one or more of our States at that time had had the enlightened foresight and foresight to provide in their state law, all persons born or naturalized within the boundaries of this State shall be citizens and entitled to the same privileges and immunities and to the same due process of law and to the equal protection under the law of life, liberty and property and qualified to serve on jurors.

Can there by any doubt that in any one of those States, the jury would have consisted as described in the Ballard case of both men and women regardless of race or color or sex?

Can there by any doubt in view of construing the reason for paring the Seventh Amendment down to its barest fundamental essential?

And the — the language of this Federal Judiciary Act that the — the people in that — in that Congress contemplated that there were differences in selective consistency and there were differences in qualification competency and at the same time, provided for potential changes.

And for the life of me, if you can change the quality competency of a civil jury, I can’t see where the number 12 is — is a sacred call that should be preserved for posterity.

William J. Brennan, Jr.:

Do you know of any examples of where — in the States or otherwise where there were juries of less than 12 persons at the time the Constitution was enacted?

Sir, I don’t know.

Our — our — the material available is what —

William J. Brennan, Jr.:

What do you do about the statute to which it says that — which seems to indicate that juries shall — in the Federal Court shall be as they were at common law and under the amendment?

I don’t think the Seventh Amendment (Inaudible)

William J. Brennan, Jr.:

The — The Seventh Amendment does what the statute does.

Oh, you mean this — this 28 —

William J. Brennan, Jr.:

Yes, 27, I think.

I suppose that’s a — that is a controlling limitation on the power of the courts to make their own rule.

Well, all I could say in that —

William J. Brennan, Jr.:

Is it or Isn’t it?

I — I agree with that.

I agree with that.

William J. Brennan, Jr.:

So we do — we must deal with the limitation that — that the jury shall be left as they were at common law even if the Seventh Amendment doesn’t require it.

That’s a possibility.

William J. Brennan, Jr.:

Well, is it or not?

What do you do with that statute?

Well, we get back to this.

I — I don’t know if there was any consistency in the — in the essentials of the common law jury.

I know that you had 12, but I can’t find any place in — in my reading which — which it says — which is proof that there was any intention at any time to continue 12 as the number —

William J. Brennan, Jr.:

Well, let’s assume you’re right under the amendment.

Assume you’re quite right as far as the requirements of Seventh Amendment is concerned.

But let’s assume Congress came along and said, “Juries in the Federal Court shall be 12.

They would be 12”, they say.

I think we — we would be bound —

William J. Brennan, Jr.:

They haven’t said that, that Congress has said the jury shall, in civil cases, shall be as they were at common law.

If that’s the interpretation of that —

William J. Brennan, Jr.:

Well —

— that congressional I —

William J. Brennan, Jr.:

What is your interpretation of it?

I — I just don’t want to purport that — that were — that there — that there was at that time any — any consistency, any — any detailed consistency.

And I am not sure, Your Honor, that if — that such law by Congress if — if — if the Seventh Amendment was not intended to impose those conditions.

I’m not sure that that would be a binding restriction.

William J. Brennan, Jr.:


Potter Stewart:

Certainly, that Congress under Article III has power to create lower federal courts and I suppose it would follow from that Article III power that it would —

Plus the necessary —

Potter Stewart:

(Voice Overlap) — proper clause from that same proper and have power to say how trials in those courts would be conducted.

I’ll have to go along with that.

Warren E. Burger:

That’s — that’s implicit in the rulemaking structure under which Federal Rules of Civil and Criminal Procedure were enacted (Voice Overlap)

I’ll have to concede that.

Warren E. Burger:

Those are enactments, ultimately, of Congress, are they not?

Yes, even though they’re promulgated by this Court, they are in effect to Voice Overlap)

Warren E. Burger:

They have not (Voice Overlap)

And on behalf of —

Warren E. Burger:

Without the acquiescence of Congress.

That’s right.

I’d like to make one comment if I may in connection with the — the discretion about cross section of — of the community.

The Billings Division of our Court that consist of some 20 counties and there’s a total of 186,000 people there of which 93,000 come from one county and I — I neglected to find out how many qualified jurors there are from that whole group, but I don’t think it would be unfair to suggest maybe a figure of 50,000.

Now, we have called a trial calendar of from one to five cases and out of that 50,000 people, they will select a trial panel of from 30 to 65 total panel of jurors.

And then from that 30 to 65 people, we will select either the 12 or the six-man jury as the case may be, and then there’s any doubt, of course, that if you were simply comparing the 12 and 6 to a selection out of 35 that you would have more of a cross section out of the — the 12 and 6.

And again, I am no mathematical Einstein, but I would be very much surprised if it were computed mathematically by percentages that the difference between the 6-men and the 12-men so far as the cross section of that 50,000 is concerned would be anything but minuscule.

I think this buggable of cross section is — is more fiction than — than fact.

Warren E. Burger:

But you are now addressing yourself to the wisdom rather than the statute or your —

Well, this are commented on the end of these briefs, Your Honor.

I just wanted to make that — that point.

The same thing with respect to statistics.

I had the opportunity last summer at the circuit conference of the Ninth Circuit Court to ask Professor Zeisel point blank whether or not the statistics would have any valid application to jury practice in a place such as Montana.

And I posed to him these basic facts.

Montana area-wise is the fourth largest in the Union.

You can put most of the New England states and part of New York in our boundaries.

We’ve got a total of 675,000 people in all that area.

Five or six of our community are big cities that most of which is 70,000 will have more than half of that total amount.

And I’ll go into a county to try a case which is large in areas, Connecticut or Delaware or may be even approaching Maryland, and I’ll have a total population of from 1600 to 2500 people for a rural, farming agricultural State.

And I posed those facts to the professor and asked him if there had ever been any study made that would correlate or validly apply statistics to a State such as ours, and he said no.

He said our statistics are drawn from the large metropolitan areas and so on.

So I don’t think that that is really, has a good reason here.

Potter Stewart:

Mr. Crowley?

Yes, sir.

Potter Stewart:

Montana has one judicial district.

Yes, the whole district.

Potter Stewart:

And where does the District Court set in?

Well, we have — we have it then divided into six divisions, Your Honor.

Potter Stewart:


And in the Missoula Division, Judge Russell Smith is the senior acting judge.

In the Butte Division, retired Judge Murray who still handles all matters in retirement in that court seat and then in Billings are Judge Jameson and then Judge Battin, and Judge Battin is the junior acting judge.

By the way, in that connection, connection to talk about statistics and these other —

Potter Stewart:

Because for now, you’ve — you said there were six divisions —


Potter Stewart:


Well, then — they traveled.

Judge Battin (Voice Overlap)

Potter Stewart:

And the others will —

Judge Battin will take care of the Great Falls Division and the Billings Division.

Judge Smith will take care of the Missoula Division and the (Inaudible) Division.

Judge Murray takes care of the Helena Division.

Well, and then Battin takes care of the Helena Division.

So they do move (Inaudible)

Potter Stewart:

And the — and the jurors are — are drawn in any division, just from the division?

That’s right, sir.

I — I want to make this point, too.

This — this rule from Montana is not the product of pique or frustration of — of any federal judge who’s way behind at his calendar, quite the contrary.

This rule was decided by those four men with great legal and judicial talent.

I don’t know they’re born and raised in Montana.

Three of them went through our Montana Law School and they know Montana like the back of their hand.

I would accept their judgment over any jury statistics from any law school in the country.

Harry A. Blackmun:

Mr. Crowley?

Yes, sir.

Harry A. Blackmun:

The petitioner relies on Capital Traction Company and says in effect in his brief that there held that the Constitution guarantee is in the federal civil cases, a jury of 12 people.

What — what is your comment on that?

Yes, I don’t — I don’t agree with that statement.

Harry A. Blackmun:

Now, would you — would you handle that?

I know — I know that in the Capital Traction case, the Court said, that by way of dicta that we infer or we accept or we assume that a jury shall be 12.

But I don’t think that was the — the gist of the holding of that case at all.

As I — as I recall it, Congress had enacted a statute applicable to the District of Columbia which provided that they could have a trial by jury in a justice case and the petitioner there objected and the — oh and the statute also provided that in the event they lost in the Justice Court, then they would have their right of appeal to the Court of Record providing they posted a bond.

And that that was the decision of that case that there was no Justice Court at common law and the — the rules really had no application.

They did say in that case, by — by way of inference, or acceptance or assumption or whether it may be that a civil jury shall be 12.

There’s no doubt about that.

Harry A. Blackmun:

You — you said it several times.

Yes, sir.

But that issue was never — never the issue that was to be decided in the case, it was never studied and never reviewed from the standpoint of whether that was or was not the fact.

And I find no evidence that I can find in — in any of the material that I’ve read that the first Congress or the constitutional convention ever said in so many words that our jury shall be 12.

I think that’s something that you have to decide all anew regardless of the dicta that there was in any of those cases.

There were two or three cases as I remember it, Your Honor, where they — they made that same assumption, the American Fisher and the Capital Traction and the Springfield cases, I remember in particular.

But those were all dicta and they were simply assuming that that’s what was intended.

Warren E. Burger:

Thank you, Mr. Crowley.

Do you have anything further Mr. Skedd?

Mr. Chief Justice and may it please the Court.

I just have two remarks.

One, I agree with my friend and colleague, Mr. Colgrove that we have fine judges.

I want that anyone to get the idea I don’t.

They’re my friends and we think they’re competent and good.

However, our friends the judge, judges of this District did not see fit to publish the fact that this rule was going to be set out.

As a matter of fact, Mr. Crowley is on the Rules Commission that they have for the District Court and in August or whenever it was adopted, we don’t know.

It was effective September 1, 1971.

We found out about it, and I found out about it on September 27th that the final pretrial conference that we’re going to trial, but it had been adopted.

It was not announced as such they did apparently in Minnesota to see how the bar accepts it, whether or not I find that the greater men in majority, in fact, nearly all of the lawyers in Montana at this reading, are opposed to the six-man jury.

But Capital Traction, the second remark, Capital Traction said that, as I read it, that what that case does is determine what is a common law jury under the Seventh Amendment.

Potter Stewart:

And that wasn’t — my Brother Powell was certainly correct in pointing out in his questions, that was not the issue in that case, was it?

Well, that was the —

Potter Stewart:

Nobody in that case had — had tried to have a jury of less than 12.

No, I think that was the District of Columbia —

Potter Stewart:

But it was indeed from the District of Columbia and the issue was not whether or not there could be a jury of less than 12, was it?

No, they just added that in.

Potter Stewart:

So, anything that the Court said was technically dicta?

Yes, in — in III of the —

Warren E. Burger:

Thank you gentlemen.

The case is submitted.