Mrs. Lealon (Lois) Cooley, Individually and as Tutrix, on Behalf of Her Minor Children, Etc. v. Strickland Transportation Company

(Lois) COOLEY, Individual Lealon Mrs. ly tutrix, minor of her on behalf and as etc., Plaintiff-Appellant, children, TRANSPORTATION

STRICKLAND al., Defendants- COMPANY et Appellees. No. 71-2956. Appeals, States Court Fifth Circuit. April Rehearing Rehearing and En Banc June Charles, La., Drewett, Lake Clem J. Tucker, Powell, & Tucker, Kain A.

Paul plaintiff-ap- Reedy, Houston, Tex., Jacques, Lake pellant; & Drewett Charles, La., of counsel. Brame, Smith, Jr., M. Frank Allen L. Charles, La., Plauche, He- Smith &

Lake defendants-appellees. bert, WISDOM, COLEMAN Before Judges. SIMPSON, Circuit Judge: WISDOM, Circuit validity challenges rule of a federal district con-

providing “shall a civil challenge re- I. members”. The sist of six (2) Amendment, (1) the Seventh lies on argues, first, The that (3) and § F.R.Civ.P. U.S.C. making the local rule six-member validity rule. uphold of the We mandatory cases” in “all civil 1972, 456 Colgrove Battin, 9 Cir. deprives her her Seventh rejecting aon similar attacks F.2d “right jury”.2 cannot to trial adopted District Court local rule agree. holdWe the twelve-member providing District of Montana for the necessary requirement panel is not a that, of civil “A for right by jury” of trial in civil cases. persons . . of six shall consist Florida, 1970, In Williams Jury in Devitt, The Man See also Six L.Ed.2d 90 S.Ct. Court, 53 F.R.D. the Federal challenged petitioner the constitutional- plaintiff-appellant, Lois Mrs. providing ity of a Florida statute brought diversity Cooley on behalf suit try men shall constitute “six for and her minor children of herself [except capi- . criminal cases all damages resulting of her from the death Supreme Court cases]”. tal to a six- The case was tried husband. challenge “peti- jected held and objection all member over the rights, ap- Sixth Amendment tioner’s trial, nine-day parties.1 through After the Four- plied to the States Amendment, Mrs. violated the defendants. found for teenth were provide six-man decision to Florida’s Cooley appeals. ; 730.23, (1948) Minn.Stat.Ann. 730.267 13 for Rule the United Staten Local ; (1957) Ann. § Miss.Code § 488.21 District for District Court the Western ; (1952) ; (1956) 512.310 § Mo.Ann.Stat. 9, 1971, April filed Louisiana ; (1947) 93-1205 Mont.Rev.Codes Ann. judges § signed all of district (1943) ; Nev.Rev. 26-183 § Xeb.Rev.Stat. provides: district 4:49-l; (1957); Jury Stat. 16.030 N.J.Rules standing Concerning § Civil (a) (1953); 21-1-1 § N.M.Stat.Ann. Composition. 230; Ct.Act N.C.Gen.Stat. April § N.Y.Justice in all civil Effective (1953); jury cases, jurisdiction 33-07-08 § 7- N.D.Cent.Code which is ( ; 1960) Ann. 1901.24 § Ohio Rev.Code based on 28 U.S.C. U.S.C. § (Page 1957) ; § tit. Okla.Stat.Ann. and 46 U.S.C. § § ; (1953) 17.105 § Ore.Rev.Stat. three of six shall consist (1953) ; challenges tit. peremptory § Pa.Stat.Ann. to each allowed (1930); (1952); party. juror, S.C.Code 15-618 opposing § One alternate art. 2191 lengthy cases, empanelled, Vernon’s Tex.Rev.Civ.Stat.Ann. will witli (1925) ; challenge peremptory § Vt.Stat.Ann. tit. one allowed (1959) ; 2.36.050, opposing parties. Wash.Rev.Code §§ each of the W.Va.Code, (Supp.1956) ; Thirty-two 4.44.120 Ann. enacted courts have (1931) ; Appendix 50-7-1 270.15 § § AVis.Stat.Ann. similar rules. See A. (1957) ; Wyo.Stat.Ann. thirty-seven 1-552 § in some At least states have (1957) . legitimized manner certain cases require juries juries Three states of re- civil of less civil than the traditional 54.14, size: duced Pla.Stat.Ann. P.S.A. § 21-102 twelve: Ariz.Rev.Stat.Ann. § Const, I, (1943) (six jurors) ; ; (1947) (1956) ; art. Utah Ark.Stat.Ann. 26-608 § (eight jurors) ; Ann. 194; § Va.Code § 51-133 § § 48; Cal.Civ.Proc.Code Conn. (seven jurors). (1958) ; Del.Super.Ct. (Civ.) 8- 193 Pla. R. Constit., I § Art. Art. V P.S.A. § law, 73.071, , 53.041, the value In Suits at common where P.S.A. §§ Pla.Stat. controversy twenty ; ; (1969) (1935) dol- shall exceed Ga.Code Ann.. § 6-403 lars, (1947); shall be Ann. Ill. § Idaho Code 2-105 preserved, jury, (Smith-Hurd fact no tried § Ann.Stat. ch. 1935) ; ; shall be otherwise reexamined Ind.Ann.Stat. § 2-2001 (1950) ; of the than accord- Iowa Code Kan. § Ann. 603.34 ing Ky. ; the rules (1949) the common law. Gen.Stat.Ann. 20-812 U.S.Constit., (1955) ; Amend. VII. Rev.Stat.Ann. Md. § 29.015 544; Mich.Comp.Laws Rules Proc. §§ jury”. 12-man 399 U.S. at rather than a siders the role of a what- role, importance The Court’s con ever 90 S.Ct. to that attaches (see 9), Wil sideration of authorities cited in footnote no discussion liams of a context one ever contended that the function important Amendment.3 Court of Sixth the civil more holding: Changes a caveat to its therefore added that of the criminal therefore, the traditional such as whether, for ex- do not decide [W]e change approved Williams, the in ample, to the additional references by concept do not offend the of “trial the Sev- “common law” occur jury” criminal the context of a within might support a dif- enth Amendment (Sixth Amendment) case would not of- interpretation. ferent concept fend within the context 92, 30, 399 at fn. 90 at U.S. S.Ct. (Seventh Amendment). a It civil case Despite caveat, believe that this we point of irra- would anomalous the to applicability to criminal the of Williams tionality to construe the Constitution argu- the cases answers constitutional sanctioning jury a six-member criminal against six-member ments the leveled sanctioning civil but a six-member pointed jury.4 civil out As Justice White “ Williams, he in a case [t] criminal tex purpose jury to The Seventh Amendment is . of the . tually Amend prevent oppression different from the Sixth the Government”. ment. 100, a The Seventh Amendment twice at 1905. In 399 U.S. at 90 S.Ct. liberty refers See footnote 2. case, the to “common law”. because the criminal always stake, find references deter We do not these accused is at question zealously role; guarded of the of the performed a minative size jury. The to that, reference “com despite the efforts insures “ prosecutor corrupt mon clause of overzealous law” first ‘the only Amendment, biased, complaint, or ec- Seventh clause and . present ”, judge’ 90 at S.Ct. which we are concerned centric 399 U.S. deprived case,5 represents will not be an intention at an accused distinguish judgment his “in liberty to of his without a Framers between traditionally law,” peers. performed role No was such where admiralty, property or used, equity ease where and a civil and cases damages jury, one con- Bed- at stake. Whatever Parsons are where no was v. used. prosecutions, the accused In must rend all criminal Court’s decision Williams speedy enjoy interpretation to a the Sixth Amend- as an public approval trial, impartial ment, and, such, of the an apply crime to wherein the State and district six-member criminal would committed, as well as courts. con- shall have been which district federal state Harlan, previously opinion curring been ascertained of Mr. Justice shall have opinion concurring dissenting law, of the nature and to informed accusation; Black, Mr. to be con- Mr. with whom Justice of the cause opinion him; dissenting against joined, Douglas with the witnesses and the fronted explicitly recog- compulsory process for obtain- to have Mr. Justice Marshal 107, 116-117, ing favor, nize at and to have this. See 399 Witnesses in his U.S. majority’s for his de- 1893. The the Assistance of Counsel 90 S.Ct. petitioner’s peated reference to the “Sixth fence. rights” U.S.Constit., it. confirms VI. Amendment Amend. challenge 5. The law” in the six- reference to “common 4. Williams involved jury in court. Al- Amendment criminal state clause of member second Seventh prohibition though argued in that the Sixth modifies the contained it has been by jury, present is not relevant to our Amendment clause and Bedford, 1830, inquiry. guarantees, Bights should be See Parsons v. other Bill of 732; through (3 Pet.) 433, applied L.Ed. Balti to the states Due U.S. Redman, 1935, more & Carolina Line Process clause of fourteenth amend- version, L.Ed. 1636. ment in a “watered this 55 S.Ct. down” U.S. prevailed. view has not 445-446, (3 Pet.) ford, at as the Su- S.Ct. 1907.7 Just 28 U.S. preme to bind in Williams refused The available his- 736-737. 7 L.Ed. Sixth to the twelve-mem- no intention Amendment indicates torical evidence Rights long despite hold- to re- ber line of cases the Bill the Framers of ing to in procedural incidents or referred quire “the exact ‘constituted, according com- Amendment was a details of Galloway law, persons, v. United at of twelve common in 1791.” mon law ”, nor 390, 63 S.Ct. neither more less’ U.S. at 319 U.S. Henderson, 1458; 1900,8 shackle 1077, 1087, S.Ct. at we refuse to 87 L.Ed. Background Amend- Seventh historical to “a Seventh accident, great purposes unrelated to the ment, 80 Harv.L.Rev. Bernhard, gave first rise to the also Ross 729; Cap- 89-90, at place”. 24 L.Ed.2d S.Ct. U.S. Hof, ital Traction Co. v. 873, 580, 1, 13, L.Ed. 43 19 U.S. S.Ct. but not immutable The “common law is Thomas, 1856, 877; U.S. 59 Shields v. adapts flexible, principles and its own 368; 253, Aqwilines (18 How.) 15 L.Ed. varying v. Funk itself to conditions.” 146; 1936, B., 87 F.2d v. N. L. R. 5 Cir. 371, States, 1933, S. 54 United 290 U.S. Ry. Co., D.C.La. v. & Pac. Geneux Texas may, 369, 212, as 78 L.Ed. Ct. 376. 1951, F.Supp. 405. 98 Williams, consider did the Court assuming, only but does in Framers” as Court “the intent of the Even the particular Williams, that the that the common law “the function also performs the that its relation to feature and 1791 consisted of is, at purposes 399 U.S. and trial.” number no sacred6 is means accident, 99-100, noted, Much has been “a 1905. historical 90 S.Ct. at as Court unfavorable, written, unnecessary purposes about of the and to favorable effect signifi- reducing system wholly and size and without the civil ” however, mystics.’ task, not to jury.9 at ‘except U.S. is 399 Our cance to 858; 854, 253, : Williams v. As the Court noted Rassmussen 6. 74 L.Ed. 519, pro- States, 1905, 516, interpreting the 197 U.S. [Clases United gen- 863; 514, 862, 49 Max of the Seventh L.Ed. visions 25 S.Ct. 581, 586, Dow, 1900, erally leap 20 that 176 U.S. from fact v. well 597, possessed 44,8, at common feature 44 599. certain L.Ed. S.Ct. feature that that law to the conclusion Frank, Mind preserved Law and the Modern 9. See Amend- must have been ; (1949) ; Frank, simple on Trial Courts reference to ment’s Delay ICalven, Buckholz, Zeisel, “jury.” g., Capital & v. E. Traction Co. ; (1959) Peck, Do 1, 13-14, 71-81 Juries Hof, 580 19 U.S. S.Ct. 174 (1956) ; Delay 873, F.R.D. 455 [585], Justice? 18 Ameri- 43 L.Ed. 877 Desmond, or Fisher, in Civil Cases—Yes Publishing Juries v. U.S. can Co. 166 (1964); NO?, 219 [468, 47 J.Am.Jud.Soc. 619] 464 17 41 S.Ct. L.Ed. 1971). Cong'.Digest (Aug.-Sept. Ivelven & 1081 (1966) ; Jury Zeisel, The American 1901. at fn. 90 S.Ct. at 399 U.S. Jury (1930) ; Rashkow, Green, Judge clearly interpretation erroneous Such Jury: Proposed Alter longer Abolition of Civil It can be said after Williams. no (1966) ; natives, 416 simple “jury”, 15 DePaul L.Rev. to reference Tamm, Proposal jury. A for Five-Member Civil criminal, or means twelve-member Courts, in the Federal 50 A.B.A.J. Juries explanation “num- Lord Coke’s System (1964) ; Jury The Federal 162 Courts-Report holy respected in ber of twelve is much Conference of the Judicial writ, tribes, apostles, stones, 12 12 12 Jury Operation of the Committee System, typical. etc.” is ; seq. (1960) F.R.D. et 26 at at 399 90 1899. See 399 S.Ct. U.S. Jury Lumbard, Speedy Jus Trial 86-103, at U.S. S.Ct. 1893. ; tice, & Lee L.Rev. 309 Wash. Zeisel, Quoting Thompson Utah, were . . And Then There from . of the Federal 170 1061, 42 L.Ed. None: The Diminution U.S. S.Ct. (1971) ; Jury, 38 U.Chi.L.Rev. also See Patton Jury; States, 1930, Tamm, A Five-Man Civil 50 S.Ct. The guished merits of twelve-man from mere matters of form decide the or procedure the federal Baltimore & but decide whether ...” Caro- constitutionally Redman, 1935, lina Line v. reduce the courts U.S. 890, 891, jury. The L.Ed. size the civil reliability 1638.10 asserted that hardly of the as a factfinder seems size”, II. likely function of to be a 100-101, S.Ct. at U.S. Rule 48 of the Federal Rules of Civil jury in crim- six-member provides: Procedure performs its “function” as inal context may stipulate that the well as the twelve-member shall consist of number less than 99-102, 90 S.Ct. 1893. We U.S. at finding a verdict or a compelled majority jurors the same evalua- feel to make aof stated finding be taken verdict or “The tion context. aim in a civil jury.11 amendment [Seventh] preserve of the common- the substance asserts that the lo by jury, distin- requiring cal district six- Amendment, proce- gress practice proposed and rules of Constitutional prescribed ; Hofstadter, Georgetown dure Court. L.J. Compensation Proposals 28 U.S.C. § Alternate (1956) ; Phillips, shall liave Plan, tiie 59 Corn.L.Q. 42 power by general rules, Cases, prescribe, Jury to 30 tiie in All Conn.B.J. A of Six process, writs, pleadings, ; forms of (1956) in Juries Tried J.Am.Jud.Soc’y and Member 354 Six motions, practice procedure Court, 42 and Mass. District Jury ; Herndon, of tiie of tiie United Tiie Trial in district courts 136 Century, States in civil actions. Twentieth L.A.B.Bull. Tiie Jury, abridge, enlarge ; Wiehl, Sucli rules not shall Tiie Six-Man ; Devitt, modify any right Gonzago or substantive L.Rev. preserve by jury Court, right Jury F. tiie in the Federal Six-Man Reducing (1971) ; of as at law and as declared the Size common R.D. Juries, tiie tiie of Law Reform 87 Seventh Amendment to Con- of Micli.J. U.5 Cronin, in (1971) ; Six-Member Juries stitution. (April Courts, Bar J. Such shall not effect Boston rules take until District they Right Congress ; Note, reported 1958) to a to Defendant’s liave been ” Ky.L.J. begin- Enough? Jury tiie after Chief or tiie Six Trial —Is ning bibliography regular ; An Extensive of a session thereof but not day May, Hearing later than the first of Before tiie Subcommit- in found days ninety Investigate expiration of tiie Administration until tiie of after tee to they reported. Security liave been thus Act Senate the Internal Cong., Judiciary, All in witli 84th laws conflict such rules Committee (1955). Sess., pp. shall be force or effect of no further 1st 63-81 after Nothing have taken effect. such rules purposes practical all In for anything title, in this therein Eng- in civil was abolished in cases contrary notwithstanding, to tiie land, the common law. of See tiie source any way limit, supersede, repeal in Eng- Jackson, Machinery in of Justice prescribed such heretofore rules Devlin, (1963) ; Trial land 64165 Court. Jury For discussion 120-133 pre- 28 U.S.C. The latter section § 2072. abolition of the use of of instances other by jury right serves of as at its incursions on and other of tiie language common was in- law”. This form, se Melancon use and traditional predecessor in in antici- cluded statute E.D.La.1972, McKeithen, [No. pation equity the fusion of law and (3-judge court). 1972] March new federal rules. Act of June statutory enact 1 1. authorization for cli. 48 Stat. Tiie language preserve right : Provides seeks to to ment tiie Rules jury trial, and all es- the common courts not in the form of Tiie Congress may jury, from cases in which Act but those there tablished right prescribe rules to time was a trial at common time to law. Practice, Such rules See 5 conduct of their business. Moore’s Federal Para. Acts with of Con- shall be consistent at 44. stipulate in to certain cases is not member Rule it is inconsistent less twelve members.15 valid because with argument parts. 48.12 two This argues Second, First, appellant contends that the lo invalid, as incon the local rule is cal invalid as inconsistent with rule is deprives it sistent with Rule because deprives her of Rule because stipulate to a her of the to which Rule twelve-member “any number less than twelve” argument guarantees. she it, guarantees.16 This it, reads Rule reads as she not, is, only stip however, misplaced. however, Rule 48 does Rule deals with parties”. ulation It does not guarantee face, “[t\he a twelve-member its purport prevent rules which to guar imply jury, and we cannot such provide juries of reduced size. .civil When drafters antee the Rule. negative implication refuse to read a guarantee a twelve- Rules wished into Rule bar the 48 so as to they how use ex knew member at issue here. press language F.R. to that effect. See Other lead us con- considerations Furthermore, 23(b).13 Crim.P. prevent does en- clude not Rule 38(a) presence Rule with Rule actment of the local rule or invalidate of Civil Procedure the Federal Rules apparent the local of an in- rule because did intend the drafters indicates consistency Rule 48 with Rule 48. to- all the common law enshrine adopted drafted and before the including details, Court decision in v. Florida. Williams 48, despite For, Rule 38 Rule Rule was, adopted therefore, It drafted (a) preservation of and the “[t]he light long of the then established line inviolate”, ab holding must consist rogates See, g., Thompson notion that members.17 e. the common law you Thex-c used to be an idea that tlxe Federal Rules of Civil 83 of juries stipulate couldn’t fox' less than local district court authorizes Procedure men, particularly in a criminal court rules. ap- by While this rule does not court action of a ma- case. Each district ply yet cases, up- may judges jority to criminal it rests fi'orn the thereof of gov- Mr. doctrine which make amend time to time erning rules practice in Sutherland a celebrated with announced not inconsistent its case, Copies criminal that there is an absolute of rules and amend- these rules. by right agreement by any tx'ial to waive made district court ments so any case, x-iglit upon promulgation in that the to fur- their Supreme waive x'iglit whole the included the the the Court of nislied to any provid- to waive lesser number. In all not United States. may by rule, Federal of Procedure and Rules Civil ed for regulate the district courts Proceedings any practice of the American Bar Associa- in their manner tion on Federal Rules 312 Institute inconsistent with these rales. not (Dawson, 1938). ed. any at time shall be of 12 but Juries stipulate the before verdict argument technically applic- 16. This not wx-iting approval with the px-esent pari- able to the case because the any the shall consist of “any ties did not ask for a num- than 12. number less ber less rather than twelve” but demand- 23(b). F.R.Crim.P. ed a of twelve. by jury as of trial declared Judge Coui’t, Merrill, 17. As for the ob- to the Seventh the Con- Colgrove served v. : Battin given by a stitution or as statute of the light feel, must, “Rule 48 we be read preserved United to the States promulga- of the fact that at the time of parties inviolate. only jury tion twelve was the 38(a). F.R.O.P. thought known to law and was federal constitutionally juries required. provides to be The rule Rxxle less promulgated provided stipulation. as thus means impressed with the Utah, 1898, We are S.Ct. 170 U.S. v. 1061; contention the local rule cannot United Patton v. 276, 42 L.Ed. light stand of 28 U.S.C. § 281 U.S. 50 S.Ct. authorizing promulgation Dow, 854; statute Maxwell 74 L.Ed. Supreme of the Federal Rules Court L.Ed. Judge however, Williams, Civil Merrill an constitu- Procedure. After Colgrove upon interpretation Rule swered this contention tional longer In Battin: is no valid. 48 was based light Williams, cannot Rule we read Here we are confronted with the guaranteeing twelve-member 48 as phrase “right by jury of trial as at precluding estab- a local rule or as language upon common This law.” lishing six-member deny appear face would preme to to the Su- authority dispense to with characteristics III. known to com- mon law. indeed This would present in the case The record Congress sweeping limitation. The here at issue that the rule indicates has, extensively true, it is dealt with (see was, required foot jury system. 1861 et 28 U.S.C. § Supreme 12), “furnished to the note conceivable, seq. hardly It how- inter Court of the States”. ever, Supreme that it felt that the receipt pret Court’s initially Court should not be allowed indicating objection local rule without to move in interstitial areas save in approval of rule. a subor tacit As perhaps with archaic com- accordance court, reluctant dinate federal we are procedures. mon law a local rule overturn objected. suggests inquiry Thir has not An historical ty-one pro language question district courts have other was included mulgated presumably, statute, predecessor similar rules and Act of requires, each these other Rule 83 June ch. 48 Stat. anticipation district courts submitted its Supreme forth- coming Accordingly, inter Court. we rules would unite law and pret acceptance equity Court’s to assure that such objection without district court rules union the would expanded for a six-member civil indi be neither nor contracted. some validity cation of constitutional 5 Moore’s Federal Practice 38.06 (2d 1971). rule.18 ed. See also House obtaining Utah, 343, fact-finding 020, a less cumbersome [170 U.S. S.Ct. body provided by (1898)], jury than was otherwise 42 L.Ed. that by allowing parties in a civil to- must 12 members. But an consist of gether rights requires to waive their inference individual now that jury jury stipulation to a of a size. To certain read is in of 12 absent a provide enlarging- e., my view, proper post-Wiffiams means for i. not a grant right interpretation Devitt, an affirmative to the of the Rule.’ The Jury Court, to demand more than the law Man Six in the Federal requires, 273, (1971).” is otherwise to stand it F.R.D. on 274 n. head. Judge Judge Devitt, argues 18. Chief the United The the dis- also denying States District Court District trict court her motion erred Minnesota, writing subject juror’s of the for a new trial on a al- based jury courts, leged previous six-man witli federal states failure to disclose contacts reference to Rule 48: We have care- witnesses the case. adopted fully ‘This the Wil- rule before examined the record and the dis- opinion liams decision and was drafted trict and find this con- court’s long light unpersuasive. of the then established consti- tention interpretation, Thompson see tutional “ juris- jury cases, Cong., . . all civil Rep.No.1829, 2d Sess. . 73rd upon is diction for based which 51, 1332, 45 U.S.C. U.S.C. § § of Mr. words with the conclude jury 688, shall be tried U.S.C. § Brandéis: of six members.” shall consist which command Seventh The (Effective 1971) 1, March 17, Kentucky, (February 5. Western preserved” does not jury shall be 1971) practice and forms of quire that old jury cases, jurisdiction for New “In all civil procedure be retained 1332, adapt an- on 28 U.S.C. used to based § devices pres- [jury and 46 45 U.S.C. U.S.C. trial] institution § § cient jury effi- mem- of it an shall consist of six needs and to make ent 1971) (Effective February 22, in the administra- bers.” cient instrument changes justice. Indeed, such tion of 1971) (February New Mexico 6. preservation of to the are essential shall “In all civil cases right. imposed limitation (Effec- (6) members.” consist of six enjoy- merely amendment is May 1, 1971) tive ment 1971) Wyoming (February 25, 7. obstructed, the ulti- cases, jurisdiction for “In all civil of issues of fact mate determination upon 28 which is based § U.S.C. interfered with.” be not 45 jury and U.S.C. § U.S.C. § parte Peterson, Ex 309-310, members.” shall consist of six 543, 546, 64 L.Ed. 1, 1971) (Effective May 923-924. Indiana, (February Southern judgment is affirmed. 1971) jury cases, jurisdiction “In all civil APPENDIX A for which is based 28 U.S.C. § following courts, (diversity citizenship and order, ju- fixed the number of have controversy), amount in 45 U.S.C. § rors in some civil cases at less than Liability (Federal Employers’ traditional twelve: Act), (Jones Act), 46 U.S.C. § 12, 1970) (November 1. Minnesota involving condemnation and cases jury cases, jurisdiction “In all civil personal property under real and which is based on 28 U.S.C. § power of eminent domain under the 45 U.S.C. and 46 U.S.C. § of the laws shall consist of six members.” jurors.” (Ef- six shall consist of (Effective January 1, 1971) 1,May 1971) fective Illinois, (December Eastern 1971) California, (March Central 1970) de- “In all cases “In all civil cases, manded in civil (Effective consist of six members.” consisting cause be before September 1, 1971) (Effective of six members.” 15, 1971) March Illinois, (January Southern 1971) (March Indiana, 10. Northern 1971) jury cases, may “In except all as be expressly required otherwise law jury cases, jurisdiction “In all civil controlling rule, or jury shall con- for is which based on U.S.C. § (Effective sist of six members.” (diversity citizenship and amount of May 1, 1971) controversy), (Fed- in 45 U.S.C. 51 § Florida, 4. (February Liability Act), Employers’ Southern eral 1971) Act), (Jones and cases U.S.C. § (12) may involving had if of real and twelve members be condemnation power (with notice property of demand therefor written personal under parties) to all is filed the laws of with the domain eminent under thirty (30) more jury and not shall not less than consist following May days (Effective sixty (60) jurors.” serv- (6) of six 1, 1971) pleading to the the last directed ice right by issue triable 1971) (March Kansas 11. (c) shall effective This rule become except cases, jury as civil “In all May 1, jury All cases on 1971. civil required expressly may otherwise be pending in this court the effective controlling rule, jury or law date hereof shall be tried accord- (Ef- members.” of six shall consist (a) ance de- sub-division unless with 1, 1971) June fective consisting jury mand for trial (March California, Southern 12. (12) members made within is 1971) days following (15) the ef- fifteen jury de- a cases “In all (Effective this fective date of rule.” cases, manded May 1971) consisting jury shall before cause be (April 16. District Columbia (Effective April jurors.” of six 1971) 1971) “In all civil cases tried this Court 1971) (March 31, Hawaii 13. jury consist mem- shall of six ju- jury for which all civil “In bers, except in cases do- of eminent 28 United States based on risdiction (Effective 1, 1971) main.” June Code, 1332, United States Section 20, 1971) Louisiana, (April 17. Eastern Code, and 46 United States Section jury jury cases, “In all civil jury Code, 688, the shall con- Section (Effec- consist of six members.” (Effective six members.” sist of May 1, 1971) tive 1971) April (April 1971) 18. Colorado 9, 1971) Louisiana, (April Western jury cases, may except “In all civil as cases, jurisdiction all civil “In expressly required be otherwise is based on 28 U.S.C. § controlling rule, law or 51, and 46 U.S.C. 45 U.S.C. § (Effective consist of six members.” shall consist six 1, 1971) June challenges peremptory al- three with Texas, (May 1, 1971) Western party. opposing One to each lowed may cases, cases, except “In juror, lengthy all civil will alternate expressly peremptory required be empanelled, otherwise law one controlling rule, challenge op- or shall con- allowed to each July April (Effective (Effective sist of six posing parties.” members.” 1, 1971) (As July 1971) 1971) amended Illinois, 18, 1971) (May Northern (April Pennsylvania, Eastern cases, except “In all 1971) expressly required by otherwise ju- “(a) Except (b), provided in controlling rule, shall con- consist, in- ries in civil cases shall itially, (Effective Sep- sist of six members.” eight (8) Trials members. 13, 1971) tember long in such cases shall continue so 1971) York, (May 21. New Eastern jurors remain as at least six twelve, jurors “In If falls order to obtain service. number demanding party pur- (6), de- mistrial shall below six upon application specify prompt suant F.R.C.P. 38 there- must clared record, by any party his demand. If then jury consisting timely (b) jury demanded without Trial twelve, writing, jury specifying requests other date jury (Effective jury August 10, party trial of entitled to a of twelve.” 1971) may jury secure a trial serving parties and upon the other Alabama, 12, 1971) (July 27. Middle jury specifying a a demand jury jury “In all civil cases the shall (a) time the later of not later than (6) (Effec- consist six members.” (b), 38(b), provided or in F.R.C.P. August 1971) tive timely days the service of a ten after Wisconsin, (July 26, 1971) 28. Eastern jury has not for a demand jury except may “In all as be (Effec- jury specified of twelve.” expressly required by otherwise 1, 1971) September tive controlling rule, jury shall con- 1971) Florida, (May 27, Middle 22. (Effective six Sep- sist of members.” cases, jurisdiction jury “All civil 1, 1971) tember upon 28 which is based U.S.C. § Hampshire (July 1971) 29. New 51, and 46 45 U.S.C. U.S.C. § “(a) Number Jurors and Initial jury shall to a shall be tried Selection (Effective consist of July 1, 1971) members.” six jury In all cases, civil shall consist of six members and Pennsylvania, (May Western 23. clerk shall select lot 1971) persons names of six to be drawn “In all shall civil cases the initially. Rule of six members. This consist jury cases, In all criminal applicable shall to all civil actions jury shall consist twelve mem- Sep- tried in this on or after District bers and the clerk shall select (Effective Septem- tember 1971.” lot persons the names of twelve 1, 1971) ber initially”. (Effective drawn Jersey (May 1971) New September 1, 1971) actions, except “In all as July (Filed Montana 14, 1971) may expressly required be otherwise (d) Jury Trials law, the shall of six consist juryA for the trial of civil (Effective September members.” cases shall persons consist six 1971) plus jurors may such alternate Oregon 7, 1971) (June impaneled. “(a) In all civil cases in this tried (Filed September 20, 31. Rhode Island jurors court to a the number of 1971) shall be six unless otherwise ordered (a) juries. Six-man In all civil by the court. cases, shall consist of six (b) provision This not alter members. The in a criminal case challenges number of to a available shall consist cept of twelve ex- party under 28 U.S.C. Sec. 1870 or provided 23(b) in Rule (Ef- 49(b) Fed.Rules Civ.Proe.” Federal Rules of Criminal Procedure. 1971) July 1, fective (Effective September 27, 1971) Maryland 10, 1971) (June Zeisel, . And Then There “In civil cases which trial were None: The Diminution of the Fed- pursuant Jury, F.R. been demanded eral 38 U.Chi.L.Rev. 710 C.P. six consist jurors, plus such number alternate Judge COLEMAN, (dissent- Circuit jurors, neces- the court deem ing). sary, action, party unless (30) days thirty respectfully less than I dissent. before any “is as well settled fol- common law reads as The Seventh legal proposition can be”. lows: the I do not whether widow know law, the where at common “In Suits will, can, or now us the case before controversy twen- shall exceed value in Supreme seek certiorari Court. by dollars, ty of the The bur- should not have to do so. She tried preserved, and no fact shall be by den be on those who seek to over- should re- otherwise shall be turn a rule of Constitutional Law that Court examined it has stood since 1789—until occurred of according the rules emphatic pro- to someone this law.” common the nouncement of both Constitution the Constitutionally mandatory char- Supreme the Court overturned could be jury member by acter of the conven- a local rule the sake of was unmis- Amendment cases Seventh ience. takably the enunciated say if must further that even I were I Capital Trac- of the case Hof, Court guidance I would without the of Hof Company v. tion If, of nevertheless dissent. for reasons 43 L.Ed. 873 convenience, a District Court from, may rule reduce the size of a case This is last the six, why may binding directly point. twelve to it not on the on the It is reasoning reduce the number to it same until such time as inferior courts three, or other may some number which be overruled same greatly effectually impair, if would not it. which decided destroy, underpinning the reasons majority opinion present does by jury? despite This fact discuss Hof. great emphasis live in a time of opinion there rendered was most rights, particularly constitutional thoroughly researched and a definitive rights charged of with crime those Amendment, analysis Seventh who wish to undermine whatever day Chief handed down in a when Mr. means available the effectiveness serving ju- presided, with Justice Fuller charged performance of those with the Harlan, like Mr. Mr. Jus- rists Justice duty. great- my opinion, In official Gray, Mr. later White, tice rights est all constitutional is the Chief Justice repeatedly United States. Hof by jury. I not see would by jury in stated that insignificant impaired it tKe most primary and usual sense of scintilla, has much a rule which less at Ameri- term common emasculating eventually potential by jury of can constitutions is “a trial it. presence 12 men in and under superintendence judge empowered of a crystal 48 is to me clear. It * * them, to instruct *.” only by stipulation means may reduced to less Indeed, said, proposi- the Court “This course, Rule, than twelve. The generally admitted, tion has been so arid the effect of a statute. cannot Courts contested, so seldom that there has been emphatically I alter or revise statutes. little occasion for its distinct assertion. disagree the idea that a statute unequivocal Yet there are statements away fact, repealed] parsed [in it to be found in books.” Where- by theory that those order upon, catalog proceeded the Court unambigu- plain who enacted statements, including those a decision misap- actually under ous terms were Court Ohio prehension some other of law. quirement abrogated men for a If is to the Rule it should procedure be done available to the United States in the Court seek that end. those who would By 48 and alone. Rules Court prerogative reducing has vested the Moreover, receipt [by Su- juries 12-man size of preme ob- of a local without Court] lack of other mention alone. jection” approval “tacit does not indicate authority institution, to diminish this judicial power the rule”. prevents reasoning from only me United States Courts reaches implicitly conveyed. Certainly, cases and controversies. somehow advisory opinions, ei- no renders neither the number of courts which have ther silence or otherwise. function, assumed to exercise nor this expediency day which a new seems I would and remand case reverse this demand, supply pow- can this deficit jurors. for a new trial before twelve respectfully I er courts. district grant dissent to the court’s failure to ON PETITION FOR REHEARING hearing en banc. AND PETITION FOR REHEAR- EN ING BANC

PER CURIAM: Rehearing The Petition for is denied having polled and the Court been request of one members majority Court and a the Circuit Judges regular who are active service having (Rule it, voted in favor of Appellate Procedure; Federal Rules of HICKMAN, Arthur Plaintff-Appellant, Local Fifth Circuit Rule the Peti- Rehearing tion for En Banc is also de- Floyd al., L. FAIRLEIGH et Defendants- nied. Third-Party Plaintiffs-Appellees, Coleman, Judge, adheres Circuit originally dissenting opinion filed in this GREEN, Third-Party Lee Defendant- Learning petition for cer- that a case. Appellant. tiorari has been filed with 71-1229, Nos. 71-1399. from another the iden- Circuit nothing involved, question Appeals, here tical States Court of Tenth Circuit. further written at this time. May 26, 1972. BROWN, R. Before JOHN Chief BELL, Judge, WISDOM, GEWIN, COLEMAN, THORNBERRY, GOLD- AINSWORTH, DY- GODBOLD,

BERG, MORGAN, CLARK, ER, SIMPSON, Judg- RONEY, INGRAHAM and Circuit es. Judge (dissenting) :

CLARK, Circuit agree part Judge I Coleman’s By panel opinion. dissent from the Congress reposed U.S.C.A. rulemaking power courts

Case Details

Case Name: Mrs. Lealon (Lois) Cooley, Individually and as Tutrix, on Behalf of Her Minor Children, Etc. v. Strickland Transportation Company

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 20, 1972

Citation: 459 F.2d 779

Docket Number: 71-2956

Court Abbreviation: 5th Cir.