A Tull Tale of More Right Versus Less Filling: The Right to Trial by Jury in Federal Civil Penalty Cases


Linda S Mullenix

7 Preview of United States Supreme Court Cases 188


This article previews the issues and arguments in Tull v. United States, on the Supreme Court’s 1987-88 appellate docket. The issue in this case is whether the Seventh Amendment to the United States Constitution guarantees a person sued by the United States government under the Clean Water Act, the right to a trial by jury when the government seeks combined injunctive relief and substantial civil penalties.

The Supreme Court has long taken the position that in civil cases, a litigant is entitled to a trial by jury if a jury trial was provided for that action in 1791 when the Seventh Amendment was adopted. Thus, Seventh Amendment cases are most often reduced to historical investigations of forms of action and legal remedies existing from time immemorial, or at least dating from Magna Carta. On the other hand, the Supreme Court has not remained ignorant of nor unsympathetic to the idea that nearly two hundred years of modern industrial development may have rendered this judicial theory somewhat confining.

To mitigate the harshness of a jury right cemented in 1791, the Court has additionally acknowledged that the right to a trial by jury may exist in civil causes of action not contemplated when the Constitution was ratified. Therefore, if an attorney can demonstrate, by analogy, that some similar action at common law required a jury trial in 1791, the Court will acknowledge the same right for that action's modern-day counterpart.

This case presents another chapter in jurisprudential efforts to fit a twentieth-century square peg (action under the Clean Water Act) into an eighteenth-century round hole (no such statutory action). The further question raised by Tull's legal predicament is whether a citizen may be denied a trial by peers when he is sued by the federal government.The Court’s landmark decisions in Bacon Theatres, Dairy Queen and Ross left unexplored the problem of a right to trial by jury in federal statutory causes of action. The Tull case presents the Supreme Court with the opportunity to elucidate the Seventh Amendment right to trial by jury in a largely unexplored dimension of procedural rights where the cause of action is created by federal statute.

With regard to statutory actions, the Supreme Court has recognized two broad categories of cases. The first concerns the jury right where Congress has created a regulatory scheme and provided for enforcement of right in a specialized administrative adjudicatory proceeding. The second concerns the jury right where Congress has created a regulatory scheme to be enforced in federal district court. The Tull case falls into the second category, and the Supreme Court will have to answer the question of whether a civil litigant is entitled to a trial by jury under a federal statute that is silent on the subject of the jury right although providing for normal Article III federal court jurisdiction.

Moreover, existing case law treats the jury question in the context of private litigants, rather than as in this case, where a citizen is sued by the government. Generally, where the Congress has created a regulatory scheme providing for enforcement through administrative adjudicatory proceedings, the Supreme Court has upheld denial of jury proceedings against Seventh Amendment challenges. Illustrations include administrative actions under the National Labor Relations Act, the Bankruptcy Act and the Occupational Safety and Health Act.

Where Congress determines that specialized fact-finding is necessary, particularly with regard to certain "public rights," specialized proceedings can be mandated outside the reach of Seventh Amendment requirements. On the other hand, where Congress creates a statutory scheme with enforcement remedies vested in the federal courts, the Supreme Court generally has held that a jury trial is constitutionally required. If an action involves rights and remedies recognized at common law, the jury right must be preserved even where there is an arguable congressional preference for a nonjury adjudication of claims.

In Tull, the Supreme Court is faced with an environmental regulatory scheme under the Clean Water Act providing for both equitable relief in the form of injunctions and civil penalties. The statute vests jurisdiction in the federal courts for violations of the Act, but it is silent as to the right to a trial by jury. The Supreme Court's decision in Tull will have wide-reaching significance for the government's effectiveness in enforcement proceedings under federal regulatory schemes. Tull has identified 225 federal statutes ― all but thirty enacted since 1972, that provide for civil penalties for violations of the law.

If the Supreme Court curtails the right to trial by jury in civil penalty cases, the government may be encouraged to seek penalties by characterizing penalties in an equitable fashion, thereby circumventing procedural protections afforded civilian defendants. At worst, if civil penalties under the Clean Water Act are construed as equitable remedies pursuant to the general equitable goals of the Act, this will have dire ramifications for defendants under the entire federal regulatory scheme. With this expansive interpretation, every regulatory' statute becomes equitable in nature, and the Seventh Amendment jury right in actions by the government will be rendered nugatory.

Full Citation

Linda S. Mullenix, A Tull Tale of More Right Versus Less Filling: The Right to Trial by Jury in Federal Civil Penalty Cases, 1986-87 Preview of U.S. Supreme Court Cases 188.