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, thereÃ¢â‚¬â„¢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 injunctionÃ¢â‚¬â€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 thereÃ¢â‚¬â„¢s a rule that says that you canÃ¢â‚¬â„¢t have a jury when youÃ¢â‚¬â„¢re asking for an injunction, only when youÃ¢â‚¬â„¢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 youÃ¢â‚¬â„¢re still only entitled to a jury trial in cases seeking Ã¢â‚¬Å“lawÃ¢â‚¬Â-type remediesÃ¢â‚¬â€that is, money damagesÃ¢â‚¬â€not in cases seeking Ã¢â‚¬Å“equityÃ¢â‚¬Â-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.