ANZALDUA v. BAND; SUROWY v. WAYNE STATE UNIVERSITY
Case Details
- Citation
- 216 Mich. App. 561
- Judge(s)
- Before: Markman, P.J., and O’Connell and J. D. Payant JJ.; J. D. Payant, J., concurred.
- Procedural Posture — the stage the case had reached
- appeal
- State
- Michigan
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
Court of Appeals reversed the trial court's order striking plaintiff Anzaldua's jury demand in her whistleblower case against Michigan State University, and affirmed the trial court's denial of defendant Wayne State University's motion to strike plaintiff Surowy's jury demand. The court held that parties have a constitutional right to jury trial in Whistleblowers' Protection Act actions, and that this right applies even against state entities.
Excerpt
ANZALDUA v BAND SUROWY v WAYNE STATE UNIVERSITY Docket Nos. 168358, 170339. Submitted November 21, 1995, at Lansing. Decided May 14, 1996, at 9:10 A.M. Leave to appeal sought. Sharon E. Anzaldua brought an action in the Ingham Circuit Court against Rudolph N. Band and Michigan State University, seeking damages under the Whistleblowers’ Protection Act (wpa), MCL 15.361 et seq.-, MSA 17.428(1) et seq. The court, Carolyn Stell, J., granted the defendants’ motion to strike the plaintiff’s jury demand. The plaintiff appealed by leave granted. John E. Surowy brought an action in the Wayne Circuit Court against Wayne State University, seeking damages under the wpa. The court, James Mies, J., denied the defendant’s motion to strike the plaintiffs jury demand. The defendant appealed by leave granted. The appeals were consolidated. The Court of Appeals held: 1. Const 1963, art 1, § 14 provides that the right to a trial by jury “shall remain.” Although there is some authority that suggests that the constitutional right to a trial by jury exists with respect to new statutory causes of action only where there existed a similar common-law cause of action that predated the adoption of the 1963 constitution, there is little persuasive rationale for that position, and the weight of authority supports the conclusion that the constitutional right to a jury trial exists with respect to all actions that had they existed before the adoption of the 1963 constitution, would have been denominated as actions at law. Because actions under the wpa generally are denominated as legal actions entitled to a jury trial, the constitutional right to a jury trial exists with respect to actions for damages brought under the wpa. 2. The defendant universities are state entities that enjoy the state’s sovereign immunity, which, in the absence of a waiver of that immunity by the Legislature, would be liable for damages only in an action brought in the Court of Claims, in which there is no right to a jury trial. Sovereign immunity may be waived either by express statutory enactment or by necessary inference from a statute. Because the Legislature included state entities within the definition of employer in the wpa and provided that wpa actions may be filed in the circuit court, the Legislature, by necessary inference, waived the right of state entities to be sued with respect to wpa claims only in the Court of Claims. Accordingly, in light of the Legislature’s clear intent that both public and private defendants in wpa actions be treated in the same manner, the fact that the defendant universities are state entities does not preclude the plaintiffs from demanding that their claims for damages under the wpa be tried before a jury. Order of the Ingham Circuit Court reversed; order of the Wayne Circuit Court affirmed. O’Connell, J., concurring in part and dissenting in part, stated that because the plaintiffs seek legal relief under the wpa, they would normally be entitled to a jury trial. However, because the defendant universities are state entities subject to the state’s right to sovereign immunity, the right to a trial by jury exists only if immunity has been waived, either explicitly or by necessary inference. The Legislature has not explicitly directed that a wpa claim for damages against a state entity shall include the right to demand a jury trial, and a jury trial may not necessarily be inferred from the subjecting of state entities to wpa liability or from the direction that wpa claims may be filed in the circuit court. 1. Trial — Trial by Jury — Whistleblowers’ Protection Act. Actions for damages brought under the Whistleblowers’ Protection Act are subject to the constitutional right of a trial by jury (Const 1963, art 1, § 14; MCL 15.361 et seq:, MSA 17.428[1] et seq.). 2. Trial — Trial by Jury — State Entities — Whistleblowers’ Protection Act. A plaintiff bringing an action for damages under the Whistleblowers’ Protection Act against a state entity may demand that the claim be tried by a jury; the Legislature, by necessary inference, waived the state’s right to have claims for damages under the wpa tried in a bench trial in the Court of Claims (MCL 15.361 et seq:, MSA 17.428[1] et seq.). Thomas J. Jewett and Green and Green (by Philip Green and Christine A. Green), for Sharon E. Anzaldua. Dib and Fagan, P.C. (by Barry S. Fagan and Robert A. Dubin), for John E. Surowy. Fraser Trebilcock Davis & Foster, P.C. (by Michael E. Cavanaugh and Mark R. Fox), for Rudolph N. Band. Michael J. Kiley, for Michigan State University. Daniel J. Bernard, for Wayne State University. Before: Markman, P.J., and O’Connell and J. D. Payant JJ. Circuit judge, sitting on the Court of Appeals by assignment. Markman, P.J. In Docket No. 168358, plaintiff Anzaldua appeals by leave granted a trial court order striking her jury demand. In Docket No. 170339, defendant Wayne State University appeals by leave granted a trial court order denying its motion to strike plaintiff Surowy’s jury demand. These cases, consolidated for appeal, are actions for relief under the Whistleblowers’ Protection Act (wpa), MCL 15.361 et seq.-, MSA 17.428(1) et seq. They present the issue whether the right to a jury trial is retained in actions under the wpa. We conclude that it is. We further conclude that the fact that the defendant universities are state institutions does not change this result. We therefore reverse in Docket No. 168358 and affirm in Docket No. 170339. The WPA is silent regarding whether parties bringing actions under its provisions are to be afforded a right to a jury trial.* In both cases here, the trial courts appropriately framed the issue as whether parties bringing actions under the wpa retained the right to a jury trial under the Michigan Constitution. Const 1963, art 1, § 14 states in pertinent part: The right of trial by jury shall remain, but shall be waived in all civil cases unless demanded by one of the parties in the manner prescribed by law. The “shall remain” language indicates that this provision retains the right to a jury trial as it existed at the time the constitution was adopted and neither restricts nor enlarges it. Accordingly, the question before us in interpreting this provision is what the “right of trial by jury” was in 1963. We must define the parameters of the constitutional right to a jury trial to determine whether this right is retained in actions under the wpa. Here, the trial courts came to opposite conclusions regarding whether the right to a jury trial is retained in actions under the wpa because each used a different test to analyze the constitutional right to a jury trial. In Docket No. 168358, the trial court stated, “there is no right to a jury trial under the [WPA] because that Act was not a common law cause of action prior to the adoption of the 1963 Constitution.” In Docket No. 170339, the trial court compared the case before it to King v General Motors Corp, 136 Mich App 301; 356 NW2d 626 (1984), which held that the right to a jury trial is preserved in actions under the Civil Rights Act. It stated that “an employment discrimination action constitutes a suit for damages and is therefore an action at law which existed prior to the adoption of the Michigan Constitution” and concluded that “I think that is the issue.” These two approaches differ regarding the conditions under which the constitutional right to a jury trial is retained when the Legislature creates a new cause of action without indicating whether the action is to be tried by a jury or the bench. We will refer to these two approaches as the historical-analogue approach and the nature-of-action approach throughout this opinion. Under the historical-analogue approach, the test is whether a similar cause of action in which a jury trial was accorded existed at the time the 1963 constitution was adopted. Under the nature-of-action approach, the test is whether the cause of action would have been denominated as legal at the time that the 1963 constitution was adopted and, therefore, whether a party bringing the action would have been accorded a right to a jury trial. Our nomenclature for the two approaches is intended to distinguish them. However, the distinction between them is more subtle than this nomenclature indicates. Both approaches have an historical-analogue element. Because Const 1963, art 1, § 14 states that the right to a trial by jury shall “remain” as it was at the time the state constitution was adopted, the focus under each approach is whether a party bringing a similar cause of action would have been afforded a right to a jury trial at that time. With respect to this historical-analogue element, the distinction between the two approaches is how broadly the concept of a similar cause of action is read. The historical-analogue approach requires the existence before the adoption of the 1963 constitution of a common-law action protecting similar legal interests in which a right to a jury trial was afforded. The nature-of-action approach requires only that the cause of action at issue be legal as opposed to equitable, because the common law at the time of the adoption of the 1963 constitution recognized a right to a jury trial in actions denominated as legal. Both approaches also consider the nature of the action — whether it is legal or equitable. The denomination of an action as legal or equitable determines whether there is a right to a jury trial under the nature-of-action approach. The historical-analogue approach also analyzes whether an action is legal or equitable to decide if a right to a jury trial is retained. Under this approach, if an analogue predating the 1963 constitution exits, it must still be determined whether the analogue incorporated the right to a jury trial. The cases supporting the historical-analogue approach require the existence of an analogue at common law that afforded the right to a jury trial at the time the 1963 constitution was adopted. “Common law” is generally read as the opposite of “statutory.” But “common law” is also an antonym to “equitable.” Black’s Law Dictionary (5th ed), at 251. The Seventh Amendment, US Const, Am VII, provides the federal constitutional right to a jury trial “[i]n suits at common law.” In Granfinanciera, SA v Nordberg, 493 US 33, 41; 109 S Ct 2782; 106 L Ed 2d 26 (1989), the United States Supreme Court held: We have consistently interpreted the phrase “Suits at common law” to refer to “suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized and equitable remedies were administered.” Parsons v Bedford, 28 US (3 Pet) 433, 447; 7 L Ed 732 (1830). Accordingly, in the cases supporting the historical-analogue approach, the term “common law” is appropriately read as a contrast to equity. The requirement of these cases of a common-law analogue is therefore a requirement of a legal analogue. Further, several of the cases supporting the historical-analogue approach explicitly discuss the legal or equitable nature of the case before them. For example, in In re Colon, 144 Mich App 805, 818; 377 NW2d 321 (1985), this Court set forth this underlying principle: - In general, before the Constitution was adopted, there was a right to jury trial at law but not in equity. Thus, under the historical-analogue approach, the denomination of an action as legal or equitable determines whether there is a right to a jury trial only if there existed before the adoption of the 1963 constitution a common-law cause of action. Accordingly, while both approaches ultimately look to the nature of the action, they differ in that the historical-analogue approach has the additional requirement that a similar common-law cause of action existed before the adoption of the 1963 constitution. The language of the constitutional provision does not indicate which of these two approaches is correct. There is Michigan case law supporting both approaches. Accordingly, the case law offers no definitive guidance regarding which approach correctly construes the constitutional provision. Even individual cases are often ambiguous regarding which approach controlled the determination whether the right to a jury trial had been retained. We found cases that arguably support the historical-analogue approach. Conservation Dep’t v Brown, 335 Mich 343; 55 NW2d 859 (1952),. involved the confiscation of an illegal fishing net. The Court, noted that the statute at issue was silent regarding whether there was a right to a jury trial and held: [T]he right to trial by jury is preserved in all cases where it existed prior to the adoption of the Constitution. The constitutional guaranty applies to cases arising under statutes enacted subsequent to adoption of the Constitution, which are similar in character to cases in which the right to jury trial existed before the Constitution was adopted. . . . The precise question presented, then, is whether the proceedings here are of such character that a jury trial would have been available before adoption of the Constitution. [Id. at 346-347 (citations omitted).] The Brown Court noted that the proceedings at issue were not equitable in nature. Id. at 347. But we note that an action involving the confiscation of personal property is not an ordinary legal action. The Brown Court concluded: We are not persuaded that this is a cause of action known to the common law in which a jury trial was accorded prior to adoption of the Constitution of this state. [Id. at 350.] Several other cases that arguably support the historical-analogue approach determined that no right to a jury trial was retained. In Chamberlin v Detroit Edison Co, 14 Mich App 565; 165 NW2d 845 (1968), this Court affirmed the dismissal of the property owners’ complaint contesting nonjury utility condemnation proceedings. In Meyer v Dep’t of Treasury, 129 Mich App 335; 341 NW2d 516 (1983), this Court affirmed the denial of a jury trial request in Tax Tribunal proceedings. In Tomlin v Dep’t of Social Services, 154 Mich App 675; 398 NW2d 490 (1986), an action regarding alleged overpayments of medicaid benefits, this Court found no right to a jury trial. In In re Colon, supra, this Court held that there was no right to a jury trial in child custody matters. The Colon Court held: [Respondent's entitlement to a jury trial depends on whether this case is “similar in character” to cases affording a jury trial before the Constitution was adopted. In addition, we must look to whether the instant proceeding involves a cause of action “known to the common law.” [Id. at 818.] We note that the Colon Court’s use of the term “in addition” indicates that this approach has two distinct elements: (1) that the cause of action at issue be “similar in character” to actions predating the 1963 constitution that afforded a jury trial and (2) that the cause of action at issue be “known to the common law.” The Colon Court concluded that child custody matters are clearly equitable in nature and rejected the respondent’s argument that he was entitled to a jury trial. Id. at 819. The basis for the result in each of these five cases in which no right to a jury trial was found is unclear. None of them were traditional legal actions that sought legal remedies. Therefore, application of the nature-of-action approach to these actions would have also resulted in determinations that no right to a jury trial was retained. A case, legal in nature, in which no right to a jury trial was found solely on the basis of the lack of an historical analogue would have directly addressed the situation in which application of the two approaches would yield different results. However, we found no such case. Several cases in which the right to a jury trial was found to be retained under the Civil Rights Act (cra), MCL 37.2101 et seq.; MSA 3.548(101) et seq., and the Handicappers’ Civil Rights Act (HCRA), MCL 37.1101 et seq.; MSA 3.550(101) et seq., also arguably support the historical-analogue approach. In King v General Motors Corp, supra at 308-309, this Court held that the right to a jury trial is retained in an employment discrimination action under the CRA: An employment discrimination action constitutes a suit for damages and is therefore an action at law which existed prior to the adoption of the Michigan Constitution in 1963. Ferguson v Gies, 82 Mich 358, 365; 46 NW 718 (1890); St John v General Motors Corp, 308 Mich 333, 336; 13 NW2d 840 (1944); Pompey v General Motors Corp, 385 Mich 537, 556-557; 189 NW2d 243 (1971). We note that the basis of the King Court’s conclusion that the right to a jury trial was retained is ambiguous. It is unclear whether its conclusion turned on the fact that the suit was a legal action or on the fact that there existed common-law analogues predating the 1963 constitution that afforded a right to a jury trial. In Smith v Univ of Detroit, 145 Mich App 468, 477; 378 NW2d 511 (1985), a race discrimination action under the CRA by students, this Court reversed a denial of a jury trial request because “common-law actions for damages for similar discriminatory acts were recognized prior to the adoption of the 1963 constitution.” In Barbour v Dep’t of Social Services, 172 Mich App 275, 280-281; 431 NW2d 482 (1988), this Court affirmed the denial of the defendant’s motion to strike a jury demand in an employment discrimination action under the hcra on the basis that “employment discrimination claims are actions at law which existed prior to the adoption of the state constitution.” These cases that support the historical-analogue approach fail to provide clear authority for choosing the historical-analogue approach over the nature-of-action approach. The language of these cases is ambiguous. The requirement of an historical analogue is drawn from language stating that the constitutional guaranty applies to actions “similar in character” to cases having the right to a jury trial at the time Michigan’s constitution was adopted. As noted above, such language can be read to require the existence of an analogue predating the 1963 constitution or to refer to the nature of the action; i.e., to require that the cause of action at issue be legal in nature because legal actions retained the right to a jury trial at the time the constitution was adopted. We acknowledge that the opinion in In re Colon, supra, explicitly refers to two separate elements: “similar in character” and “known to the common law.” The language of Colon thus provides the least ambiguous evidence that “similar in character” should be read to require an historical analogue rather than to require that action be legal in nature. But the Colon Court ultimately focused on the equitable nature of child custody matters rather than the absence of an historical analogue in holding that there was no right to a jury trial. Colon at 818-819. In contrast to the cases supporting the historical-analogue approach, we found cases supporting the nature-of-action approach that unambiguously identify the factors on which their determinations regarding the right to a jury trial turn. These cases focus exclusively on the nature of the action to determine whether there is a right to a jury trial. In Kahoun v Metropolitan Life Ins Co, 12 Mich App 441, 445; 162 NW2d 922 (1968), this Court held that an insured was improperly denied a jury trial in an action for reimbursement expenses because “[t]he right to jury trial should not be abridged in actions brought at law.” In Abner A Wolf, Inc v Walch, 385 Mich 253; 188 NW2d 544 (1971), an action to foreclose a mortgage, the defendants demanded a jury trial in connection with their counterclaim that raised legal issues. The entire case was tried before a jury and the trial judge made no independent factual findings regarding the equitable issues. The Wolf Court remanded for reargument before the trial judge. It cited with approval 1
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