To empanel a jury or not?
by Michelle Lore
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Is a plaintiff entitled to a jury trial for a claim brought under the Minnesota Human Rights Act? That question has been causing waves throughout the state’s employment law bar lately.
Despite statutory language to the contrary, plaintiffs’ attorneys have long believed the answer is “yes.” Now, armed with a six-month-old Dakota County District Court decision in their favor, they are pursuing the issue with vigor.
“Everybody in the plaintiffs’ bar and everybody in the defense bar is aware of [the decision],” said Minneapolis plaintiffs’ attorney Stephen W. Cooper.
Justin Cummins, vice-chair of the Minnesota State Bar Association’s Labor and Employment Law Section, said that because more plaintiffs’ employment lawyers are choosing to bring cases in state court it is likely there will continue to be additional requests for jury trials in MHRA cases. “There’s definitely a lot of talk about doing this,” he said.
Defense attorneys, who are also paying attention to the issue, are generally opposed to the idea of empanelling juries in MHRA cases.
“The defense bar is interested and alert to this, but not ready to believe that a single decision in Dakota County is going to turn into a trend,” said Minneapolis employment law attorney Judith Bevis Langevin.
Minnesota Stat. sec. 363A.33, subd. 6, states that claims filed under the MHRA are to be heard and decided “by a judge sitting without a jury.” (Some judges chose to empanel advisory juries, but need not adhere to the advisory jury’s findings on liability or damages.)
At least one judge in the state, however, has decided that the right to a trial by jury in a MHRA case is protected by the Minnesota Constitution. In Bogie v. Synergy Resources, Judge Timothy L. Blakely ruled that a man suing his former employer for age and disability discrimination under the act was entitled to have a jury decide his claims.
“Because wrongful discharge claims under the MHRA are by their nature and character controversies at law, any legal remedies sought pursuant to such claims must, pursuant to the Minnesota Constitution, be tried to a jury,” Blakely wrote in the order.
Word of the ruling quickly spread throughout the plaintiffs’ bar, which praised the decision.
“[The Bogie order] contained a good and exhaustive analysis of why a jury trial should be available under the MHRA,” Cummins told Minnesota Lawyer.
The Bogie case settled prior to trial, so an appellate court has not yet reached the issue of whether a plaintiff has a constitutional right to a jury trial on a MHRA claim. But that hasn’t stopped plaintiffs’ attorneys from now routinely requesting juries for their clients.
“People were disappointed [Bogie] settled. We were hoping it’d go to the Court of Appeals,” said Cooper, who has cited to the decision several times in support of requests for jury trials. So far, his cases have settled prior to a judicial decision on the question.
Minneapolis attorney Steven Smith, who represented the plaintiff in the Bogie case, said that he recently spoke at a National Employment Law Association meeting to get lawyers thinking about the issue.
Defense attorney Holly S.A. Eng, of Minneapolis, said she’s seen several requests for jury trials in MHRA cases over the past few months, but they’ve all been denied. She pointed out that the statute is clear that MHRA cases are to be decided by a judge.
“The language is so express. There is no gray area,” said Eng. “The Legislature should make that change if a change is going to be made.”
Langevin noted that it appears the plaintiffs’ bar is trying to position itself to get the issue before the Court of Appeals, but that right now the question is very much in the hands of individual judges. She added that she’d be surprised if the county benches, particularly in Hennepin and Ramsey, adopted jury trials in MHRA cases without guidance from an appellate court.
Reality check
Plaintiffs’ employment attorneys feel strongly that their clients are entitled to have a jury hear their MHRA claims.
According to Cummins, there is inherent value in having a group of peers consider the evidence, judge the credibility of the witnesses and make a determination. “Jurors bring a common sense reality check that can be lost in the legal technicalities involved in a trial,” he said.
According to Smith, some employment defense attorneys see a state court venue — where summary judgment motions tend to be less successful — and a jury trial as two strikes against them right off the bat.
That’s because defense attorneys generally prefer to try discrimination cases to a judge rather than a jury, in part because of a belief that there is more certainty with a judge.
According to Eng, in most cases the judge has been involved in the matter since the beginning and is familiar with the parties and the issues. “The judge knows your case and has a good sense of what the case is about; a jury doesn’t,” she said.
Minneapolis attorney Teresa Ayling, who represented the defendant in the Bogie case, added that jury verdicts can be less predictable. “A court tends to understand and be better able to apply the law because they see these cases a lot,” she said.
Langevin added that it was a conscious decision on the part of the Legislature to put MHRA cases in the hands of judges, who are less likely to be swayed by emotion.
“[Defendants] want a judge, who is relatively dispassionate and also experienced, to be the one making the decision,” she said. “The case is less likely to get out of control.”
Minneapolis employment attorney Robert Boisvert, secretary of the MSBA’s Labor and Employment Law Section, echoed that sentiment, noting that passion and prejudice are more likely to enter into a decision by lay people than by a trained jurist.
“Defense lawyers seem to believe that a jury is more likely to find for an individual and that the verdict is more likely to be larger,” he said.
Research into the jury system may support the concerns voiced by defense attorneys.
Boisvert said that jury surveys consistently show that many jurors — who are often employees and not managers — have a “victim mindset.”
As a result, finding for the plaintiff might be a chance for jurors to strike a blow for misconduct they may have suffered, Boisvert said. Or, especially in this age of corporations like Enron, they may want to send companies a message, he added.
