Aug. 6, 2009 – The Wisconsin Supreme Court held on July 17 that a civil litigant has no right to a jury trial unless a statute expressly provides for it, or the cause of action can be found in common law at the adoption of the state constitution in 1848.
Justices also announced a new standard in Harvot v. Solo Cup Co., 2009 WI 85, for determining whether a cause of action traces back to the mid-19th century common law.
Dissenting justices criticized the majority for proclaiming a broad rule on jury trial rights that unsettles the status of many jury trials with unanswered questions. They also doubted the majority has clarified which causes of action can be found in the common law.
Kelly Harvot filed a complaint with the Wisconsin Department of Workforce Development against her employer, Hoffmaster Solo Cup Co., under the Wisconsin Family or Medical Leave Act (WFMLA) statute, Wis. Stat. § 103.10.
An administrative law judge agreed with Harvot and directed Solo Cup to reinstate Harvot with back pay, cover the cost of her attorney’s fees, and provide training to its human resources staff. Harvot then filed suit under Wis. Stat. § 103.10 (13) (a), which provides a private right of action against an employer to recover damages caused by a WFMLA violation.
Solo Cup resisted Harvot’s effort to bring the claim before a jury, arguing that WFMLA failed to provide an explicit or implicit right to a jury trial, and that the state constitution does not provide that right to vindicate claims foreign to 1848. The circuit court ruled in favor of Solo Cup, allowing Harvot to proceed with a bench trial. Harvot appealed.
The court of appeals noted that claimants are often afforded jury trials under the federal FMLA, but that the Wisconsin law is different. The court of appeals determined this question was one of first impression and certified the matter for supreme court review.
No implied statutory right
In a majority opinion authored by Justice David Prosser, the supreme court held the WFMLA – as well as any other statute lacking an express right to a jury trial – restricts civil litigants to a bench trial, unless that right is preserved by Article I, Section 5 of the Wisconsin Constitution.
The court warned that it would “open a can of worms” if it began finding an implied right where the statute is silent and the constitution does not guarantee a jury trial.
“Statutes vary widely,” the court remarked. “Ad hoc judicial discovery of implied statutory rights to trial by jury would not yield a meaningful legal test that could carry over from case to case. It would instead invite ad hoc argument whenever the statutes are silent … If the legislature wants to provide a right to trial by jury in new causes of action, it has broad power to do so.”
But Justice Ann Walsh Bradley – joined by Chief Justice Shirley Abrahamson – wrote in dissent that the majority unsettles the law with its conclusion that the Legislature necessarily meant to give no jury trial when the statute is silent on the question.
Bradley noted that no jury trial right is stated in Wisconsin’s Lemon Law, Wis. Stat. § 218.0171. Yet, she observed, “Lemon Law cases have been tried to juries around the state for years.” Similarly, juries have heard actions brought under the Wisconsin Fair Dealership Law, found in Wis. Stat. § 135.03, despite the absence of an express jury trial right.
“It is unclear how the majority’s sweeping pronouncement will affect the past judgments rendered and the future cases to be tried under Wisconsin’s Lemon Law and Fair Dealership Act,” Bradley wrote. “Can past judgments be challenged? Should future cases be tried to a jury? What role, if any, should advisory juries play?”
Bradley predicted “untold litigation attempting to answer the questions raised by the majority’s broad pronouncement.”
State law distinguished
The majority said that even if it were to recognize an implied right within a statute, Harvot failed to demonstrate one exists.
Harvot argued that the WFMLA contemplates a jury trial because it offers a court’s equitable relief, but also legal damages. Based on this distinction, the Sixth Circuit Court of Appeals held the federal FMLA had an implied jury trial right in Frizzell v. Southwest Motor Freight, 154 F. 3d 641 (6th Cir. 1998).
But the justices said that the FMLA is significantly different from the WFMLA, defeating the analogy. Whereas an employer may contest before a jury the threshold question of whether a FMLA violation even exists, an administrative agency finds violations of the WFMLA and the jury only considers damages. Further, the WFMLA does not share the FMLA’s clear exclusion of consequential and punitive damages.
In general, the court added, a right to jury trials is more readily found in federal statutes because the Seventh Amendment to the U.S. Constitution is more broadly interpreted than Article I, Section 5 of the Wisconsin Constitution.
Writing in dissent, Bradley said the remedy scheme, common to the WFMLA and the FMLA, should lead to the conclusion that the state statute contains an implied jury trial right. “Relying on the rationale of the federal courts, I determine that the creation of a separate cause of action for damages demonstrates that the legislature intended civil actions under the WFMLA to be tried by a jury,” she wrote.
The court began its analysis with its two-part test for finding whether the state constitution extends the jury trial right to a particular statutory cause of action.
“A party has a constitutional right to a jury ‘when: (1) the cause of action created by the statute existed, was known, or was recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848 and (2) the action was regarded at law in 1848,’” the court stated, quoting Village Food & Liquor Mart v. H&S Petroleum, Inc., 2002 WI 92.
“Most of our disagreement in applying the Village Food test relates to the first prong,” the court said. The court recalled its earlier struggle in Village Food to decide that the common law unfair trade practices of “forestalling the market, regrating, and engrossing” were an antecedent for a violation of the minimum mark-up law for gasoline.
Dissenters in Village Food protested that comparing a modern statute to generalized classes of common law causes of action “renders the test a nullity.”
The court noted that its disagreements over the requisite degree of commonality between present and past causes of action continued in Dane County v. McGrew, 20005 WI 130, and State v. Schweda, 2007 WI 100. In McGrew, a majority concluded that the “laws of the road” from 1848 were “predecessors to the ‘rules of the road violations recognized today,” such as speeding. But a divided court determined that waste disposal regulations did not trace back to common law nuisance claims in Schweda.
Attempting to resolve the uncertainty of Village Food’s first prong, the justices announced that it will compare “the purpose underlying the modern statute to the purpose underlying its alleged common law counterpart.”
Employing its new standard, the court said that no cause of action in 1848 served the same purpose as the WFMLA, which is “intended to assist workers in handling conflicts between the demands of their work and the needs of their families.” This is “modern social legislation” that “was quite unheard of in 1848,” the court concluded.
In dissent, Bradley remarked that the majority’s new interpretative rule does not settle the fundamental dispute of “how broadly or narrowly to focus the lens when determining whether two causes of action are ‘counterparts.’”
“I predict that the majority’s addition of ‘similar purpose’ will lend no more consistency to our application of the Village Food test and instead adds but another layer of analysis,” she wrote.
Alex De Grand is the legal writer for the State Bar of Wisconsin.