Home » Constitution, Courts, Laws, Legal » Ed Brayton Needs To Talk To Tim Sandefur About Juries

Ed Brayton Needs To Talk To Tim Sandefur About Juries

I normally don’t respond to any of Ed Brayton’s pap (see here and here) but he’s become apoplectic on this and he’s contradicting his good friend and attorney Tim Sandefur who wrote about a right to a jury in the Dover case. Maybe I made a mistake in taking Sandefur seriously but I wouldn’t bet on it. Sandefur knew what he was talking about. Brayton, as usual, doesn’t have a clue. He misintrepreted what I wrote about jury nullification and he obviously can’t recall what Tim had to say about jury trials or he misinterpreted that too. No one ever accused Ed Brayton of being a bright guy.

Says Sandefur (my emphasis)

The case cannot be heard by a jury because juries are not available for cases seeking an injunction. See, there’s a federal law called 42 U.S.C. 1983 (the Civil Rights Act), which allows you to sue state officials, in their official capacity, when they act under color of state law to deprive you of a federally protected right. So when the cops search your house without a warrant, for instance, you can sue them in federal court instead of state court, under this rule.

In some cases, including this case, a plaintiff will ask for an injunction—a court order forbidding the defendant from doing something. In this case, the plaintiffs are asking for an injunction to forbid the state officials from violating the Establishment Clause by enforcing the ID policy.

But there’s a rule that says that you can’t have a jury when you’re asking for an injunction, only when you’re asking for damages. This goes back to the old common law days. At the time the Constitution was written, courts were divided into the law courts and the equity courts. If you wanted money damages, you would go to a law court. If you wanted an injunction, you would go to an equity court. You could only have juries in law courts, not equity courts. Nowadays the two kinds of courts have been combined. But you’re still only entitled to a jury trial in cases seeking “law”-type remedies—that is, money damages—not in cases seeking “equity”-type remedies, such as an injunction.

I was exactly right when saying that by not asking for more than $20 in damages a jury trial was avoided. The 7th amendment guarantees a right to ask for a trial by a jury of peers when requested damages exceed the nominal amount of $20. I was also exactly right that 7 figure “legal fees” were used as a proxy for punitive damages. The plaintiffs didn’t want a jury trial because almost certainly some on the jury would have sympathized with the school district and voted their conscience. In other words, plaintiff knew there would unavoidably be many creationists on the jury because half the U.S. population doesn’t believe evolution.

If you don’t believe this was part of the ACLU strategy ask yourself what other reason there might have been for NOT asking for punitive damages if not to avoid a jury trial?

I was also exactly right that if the law is changed such the legal fees are considered “damages” for 7th amendment purposes then this would effectively restore the right of trial by jury when more than nominal damages are involved. Larry Fafarman’s suggestion that caps on legal fees would be better than H.R. 2679 (2679 bars awarding attorney fees in establishment clause cases) is probably better than H.R. 2679 but I’m still of the opinion that treating attorney fees as damages under the 7th amendment is the best solution as that will put the money matters before the people instead of a judge and I trust a jury of peers who can vote their conscience more than I trust an appointed federal judge. That said, the $20 figure is ridiculously low and should be indexed for hundreds of years of inflation.

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4 Responses to Ed Brayton Needs To Talk To Tim Sandefur About Juries

  1. Dave, it’s my understanding that if legal fees were considered punitive damages, and thus a jury was warranted in a case such as Dover, they would only be able to rule on those damages. A judge still has to rule on the order to actually stop using the book. I suppose this would address any issues about the legal fees, but it wouldn’t have any effect on the important part of the ruling – the jury wouldn’t have the power to allow the district to continue using Pandas.

    This is my understanding as well. Keep in mind that the jury makes the fact findings and the judge is obliged to use those findings of fact (see latter part of the 7th amendment below). I don’t see how the judge could rule for the plaintiffs in the injunctive relief case when a jury didn’t find sufficient facts to support it.

    Amendment VII – Trial by Jury in Civil Cases. Ratified 12/15/1791. – 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 re-examined in any Court of the United States, than according to the rules of the common law.

    This jury/no jury thing is really just a power struggle between authoritarian and democratic inclinations. Judges naturally have little desire to give up part of their power to a jury. I’m usually inclined towards dilution of power by democratic means when possible and practical. For instance, if a local school doesn’t want ID in the curriculum that’s fine with me. It’s their decision as far as I’m concerned and I’ll support their right to make it either way. Maybe every U.S. citizen should be obliged to serve four years in the military in order to better appreciate the democracy you’re defending in it. In the military you’re under strict authoritarian rule and your civilian constitutional and legal rights are replaced by the Uniform Code of Military Justice. Four years of being under the thumb of appointed superiors gives you more appreciation for being free of appointed superiors. -ds

  2. From ‘LectricLaw:

    DAMAGES, PUNITIVE – The purpose of punitive damages is to punish a defendant and to deter a defendant and others from committing similar acts in the future.

    Plaintiff has the burden of proving that punitive damages should be awarded, and the amount, by a preponderance of the evidence. punitive damages may be awarded only if defendant’s conduct was malicious, or in reckless disregard of plaintiff’s rights.

    Conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of injuring another.

    Conduct is in reckless disregard of plaintiff’s rights if, under the circumstances, it reflects complete indifference to the safety and rights of others.

    So iun a case brought under Ch. 38 USC (Civil Rights), the only time punitive damages are proper is when the government takes action that is either malicious or reckless.

    As Dover was filed prior to any actual government action, punitive damages do not apply. Indeed, the only reason to ask for nominal damages in the case was to prevent the defense from moving to moot the case should the school board change the policy or a new board was elected. Thereofre, there no competent funtion for a jury to consider, hence, no jury.

    Two further points:

    First, The ACLU did not receive the legal fees granted: In almost all Federal cases, legal fees are broken down comprehensively based upon the lawyer performing the work. In the cases where I have been involved, support staff time, overhead, etc do not come into play, and are not compensated. Copying expenses are paid, and at a quarter per page, form a significant part of costs awards.

    Neither is taking Federal cases a good way to get wealthy. My Federal cases were as appointed counsel in criminal cases (mostly drug and alcohol related) rather than civil rights, but I can tell you I only got about $30/hr on average. My law school professor for Conlaw indicated that the typical civil rights case paid at about that level as well (1992, I was practicing 1994-7).

    Second, the Ch. 38 provision for legal fees is a great protection for civil rights. Fees were paid in the Lambs Chapel and Good News cases, and if you check with the Rutherford Institute, I am sure they get fees after winning cases all the time. This is good because, 1) Most plaintiffs do not have the means to fight some division of government; and 2) the prospect of fees in a winning effort makes it at least possible for an attorney to consider taking such a case if she is not associated with Rutherford or some other large player. If the plaintiff does not live near a major city, it is extremely difficult to get representation. Most attorneys cannot afford a pro bono case that promisses to take up half of their time for months at a time.

    Do you think it reasonable to spend $2.5 million dollars in legal costs to get an injunction where no actual damage was done? Give me a break. This is gaming the system. Exhorbitant legal fees are being used as a proxy for punitive damages. Thanks for strengthening my point by showing there was really no cause of action for damages. But they sure damaged that impoverished little school district with the far out of proportion legal costs. -ds

  3. Dave,
    Not to hound you with this…. but write a book!

  4. I agree with Doug. You should write a book. I’m excited that Mike Gene is writing a book, but I think Dave Scott has just as much to offer.

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