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


Media for Colgrove v. Battin

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?