On Constitution Day, Stand Up for Your 7th Amendment Rights

September 17 is Constitution Day. Our Constitution outlines how the United States is governed, how our leaders are elected and what rights we have as citizens of this great country.

When the United States became an independent nation in 1776, our first constitution was the Articles of Confederation. By 1787, it was clear that it was inadequate for the new country. State delegates convened in Philadelphia on May 14 to amend the document, and they elected George Washington as chairman of the convention. It was quickly decided that just amending the Articles of Confederation wasn’t enough. What was needed was a new constitution. After months of debate, it was approved by the Convention on September 17–226 years ago today.

What many don’t know is that the new draft constitution almost failed to be approved. Why? Because it didn’t include the right to trial by jury in civil cases. It was a right guaranteed to English citizens since the Magna Carta in 1215. Just a few centuries later, King Henry VIII declared himself supreme ruler and suppressed subjects’ rights. He instituted the “Star Chamber.” Citizens were arrested, tried and convicted without any evidence, and often without even knowing what crimes they committed. These abuses continued for nearly 200 years until the 1689 British Bill of Rights restored the right to jury trials.

It was during this period of abuses that English subjects began to colonize America. One of the first rights they reasserted was the right to trial by jury. It was guaranteed in the Virginia colonial charter–and all subsequent charters. In the 1700s, as the call for revolution grew, the British government began to suppress colonial juries. America’s 1765 Stamp Act Congress, the first gathering of delegates from all colonies, declared that “trial by jury is the inherent and invaluable right of every British subject in these colonies.” Ten years later loss of trial by jury was cited as a cause for the start of the American Revolution. In 1776, it was one of two charges made against King George III in our Declaration of Independence.

Despite this history, trial by jury in civil cases was left out of the 1787 Constitution. Elbridge Gerry, one of the delegates from Massachusetts, pointed out the oversight when the draft was presented to the convention on September 12. Debate raged over the next five days. Gerry argued that “the jury is adapted to the investigation of truth better than any other system than the world can produce. A tribunal without juries would be like a Star Chamber in civil cases.” Gerry’s position was seconded by Virginia delegate George Mason, who had written the Virginia constitution. In the end, it was decided to adopt the draft as written, encourage the states to ratify it and then amend it afterward.

The debate over the convention’s failure to include trial by jury in civil cases continued as states voted to ratify the Constitution. It was only after being assured that the new Congress would amend the Constitution to outline clearly the rights guaranteed to American citizens that it was ratified and became law. In 1790, Congress passed the first ten amendments–our Bill of Rights. The 7th Amendment guaranteed our right to trial by jury in civil cases.

Today our Constitution and Bill of Rights are again at the center of national debate. There are protests, speeches and news stories nearly every day about threats to our American rights. We hear about the 1st and 2nd Amendments. We debate the 10th Amendment and state versus federal rights. The NSA leaks and and discussion about just how much the government can know about us have prompted debate about the 4th Amendment.

Yet, what is missing is any discussion about the threats to our 7th Amendment rights–and it is arguably the most threatened of any of them. Billion-dollar corporate special interests and their front groups, organizations like the American Tort Reform Association and Citizens Against Lawsuit Abuse, are spending millions of dollars every year to get state legislatures to pass laws that place severe restrictions on your right to a jury trial.

If you have a credit card or cell phone, you’ve most likely already signed away your 7th Amendment rights. How? Buried in your contracts are binding arbitration clauses. Instead of taking a case to court, with an impartial judge and jury, it is heard by an arbitrator who is selected and paid for by the defendant. Whom would you rather hear your case? A judge elected by local voters or an arbitrator whose check is signed by the defendant? Unlike the court system, which has formal rules and procedures, arbitration varies greatly from one arbitrator to the next. There is little oversight or accountability, and it’s nearly impossible to challenge their rulings. It’s death by fine print.

It’s hard to imagine any American signing away their rights to free speech, freedom of religion or to bear arms–and yet millions of us have signed away our 7th Amendment rights to trial by jury in civil cases. What is even more outrageous is that far too many didn’t even know they did it. These binding arbitration clauses need to be prohibited, just like any other act that restricts our rights.

Trial by jury and the 7th Amendment are central to who we are as Americans. Losing that right in England led our ancestors to colonize America. The British again took away the right in an attempt to stop the American Revolution–and that further stoked our calls for independence. It was one of only two crimes formally cited against the king in the Declaration of Independence. And it’s omission from our 1787 Constitution is what led to the Bill of Rights–and the other nine amendments guaranteed there.

Every American should stand up and protect a right so important to American history and democracy.

What’s a Few Million Tax Dollars?

In the current economic climate, it’s ridiculous that anyone would ask a state government to waste millions in taxpayer dollars.  Yet in West Virginia, it’s happening.

Two front groups funded by corporate special interests—the American Tort Reform Association and the so-called Citizens Against Lawsuit Abuse—are demanding that West Virginia create an intermediate appellate court.  It’s a court that would cost state taxpayers millions.  Of course that’s just pennies to them since their corporate funders are worth billions.  (Want to know more about them?  Check out these fact sheets on ATRA and CALA.)

The legislation to create the intermediate court carried a fiscal note totaling more than $5 million.  That is the estimated for the court’s direct costs though.  That doesn’t include the increased legal costs for state agencies such as the West Virginia Attorney General’s Office, the West Virginia Public Defender Services, the West Virginia State Tax Department, the Department of Environmental Protection, the Public Service Commission and others.  It also doesn’t include increased expenses for county governments because of their prosecuting attorneys’ offices.

Why this push?  They claim that it’s necessary to guarantee an automatic right of appeal.  Obviously they haven’t bothered to review our Supreme Court’s revised appellate procedures.

Issued in 2010 and implemented in 2011, the rules remove all doubt that everyone has an automatic right of appeal.  A report issued by the Court states that “according to the National Center for State Courts, the rule changes implemented in late 2010 define the appeal by right as a case that the Court must review, instead of a case that the Court can choose to review.  What this means for litigants is that each properly prepared appeal is fully decided on its merits, and appeals are no longer refused.”  And, it was done with no additional cost to taxpayers.

How are the rules working?  Very well.  In 2011, the number of merit decisions issued by the Court tripled to 678 compared with the previous year.  Last year, that total went up another 34 percent to 908.  The Charleston Daily Mail reported that “Changes to the state’s appellate procedures in 2010 have led to exponential growth in the number of written decisions issued by the West Virginia Supreme Court of Appeals.”

West Virginia Supreme Court Clerk Rory Perry presented the findings to a West Virginia Legislature Judiciary subcommittee yesterday.  He said, “We believe this process is thorough. It’s fair. It takes into account all due processes for appeals.”

Senate Judiciary Chairman Corey Palumbo responded that his “personal feeling is that [the new rules] are a significant improvement in the appellate process.”   He also questioned why ATRA continues to claim that the state as a “judicial hellhole.”

Perry’s response echoed what many have believed for some time: “I’m not sure what the national perspective is really based on.  I think they’re making it up as they go along.”

The facts back up Perry and Palumbo.

Despite the increase in the number of merit opinions, the Court’s overall caseload is in significant decline.  According to the new 2012 Statistical Report:

  • The total number of appeals declined to a 25-year low of just 1,524 cases.
  • The cases have declined by more than 50 percent since 1999, when 3,569 cases were filed.
  • More than half of these cases are workers compensation, abuse and neglect and criminal appeals
  • According to the most recent available report from the National Center for State Courts, West Virginia’s decrease is more than three times higher than the national average of 14 percent.

Then there’s the claim that West Virginia is “out of step” because we don’t have an intermediate court.  That’s not true either.  States our size just don’t have them.  Of the 10 without an intermediate court—Delaware, Maine, Montana, Nevada, New Hampshire, Rhode Island, South Dakota, Vermont and Wyoming in addition to West Virginia—only Nevada has a population of more than 2 million.

The truth is that this push has nothing to do with whether or not West Virginia actually needs an intermediate court.  It’s all about delaying justice for West Virginia consumers, workers and small businesses.  It’s about increasing corporate profits for the defendants who wronged them.  You can earn a lot of interest on that money if you hold onto it for 5 – 7 years it would take for a case to get through the system.  As the great William Gladstone noted, “Justice delayed is justice denied.”

They also claim it would benefit West Virginia businesses.  If West Virginia has a few extra million in tax dollars lying around, why aren’t these groups advocating for small business tax breaks instead of an intermediate court that’s not needed?  Because that would only help West Virginia-owned businesses, not their national and international corporate backers.

West Virginia’s first priority should be West Virginians—the people and business owners who live and work here.  An intermediate court is unnecessary and wastes our tax dollars.