PERNELL v. SOUTHALL REALTY

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Argument of Norman C. Barnett

Chief Justice Warren E. Burger: We’ll hear arguments first his morning in 72-6041, Pernell against Southall Realty Company.

Mr. Barnett, you may proceed whenever you’re ready.

Mr. Norman C. Barnett: Mr. Chief Justice, and may it please the Court.

The present case comes before the Court on a writ of certiorari to the District of Columbia Court of Appeals, and it presents the question of the right to a trial by jury in an action brought by a landlord to recover possession of real property pursuant to the District of Columbia statutory eviction proceeding and, also it raises the question of the right to a jury trial on the tenant’s counter claims for money damages brought in that same proceeding.

Briefly stated, the facts of the case are as follows.

In August of 1971, the respondent landlord sued the petitioner for possession of premises held under a lease alleging non-payment of rent for a three-month period.

On the answer day, the tenant filed an answer denying that any rent was owed because of the failure of the landlord to maintain the premises in compliance with the District of Columbia Housing Regulations.

The case law of the District of Columbia and the Administrative Regulations there permit a tenant to raise this defense at a possessory action.

The tenant also filed affirmative claims seeking a money judgment for expenses incurred by him to repair the premises and for return of rent paid while the landlord was in breach of his warranty.

The applicable rules of the Superior Court of the District of Columbia permit the tenant to raise these affirmative defenses.

At the same time, on the answer day, the tenant demanded a trial by jury, paid the requisite fees, and complied with all necessary requirements for demand of jury trial.

The trial judge struck the jury demand over the objection of the tenant that he was constitutionally entitled to a trial by jury.

The case was subsequently tried by the court and the judgment for possession was rendered for the landlord.

On appeal, the court below affirmed the decision of the trial court holding that Congress, in 1970, had repealed the statutory right to a jury trial in these eviction proceedings and that there was no constitutional right to a jury trial under the Seventh Amendment in such proceedings.

Justice Potter Stewart: Did the trial court deal with the tenant’s counterclaims?

Mr. Norman C. Barnett: I would think that they did, Your Honor.

The trial court and the proceeding at the trial court ended in a judgment for the landlord.

We presume that it was a judgment on the counterclaims as well.

In this respect, evidence tending to proof of the counterclaims was submitted at the trial court.

It wasn’t admitted into evidence because of the lack of an authenticating witness.

But, nevertheless, the proper was made and we assumed that the trial judge did rule on the counterclaims.

Justice Potter Stewart: And had ruled against the tenant?

Mr. Norman C. Barnett: Yes, Your Honor.

Justice William H. Rehnquist: Well, doesn’t Judge Riley’s opinion in the Court of Appeals give the impression that rule of the Superior Court permits the raising of that claim as a defense only, but that if you want a money judgment on your counterclaim, you have to simply pursue a different remedy in the Superior Court?

Mr. Norman C. Barnett: The thrust of the opinion, Your Honor, is to require the tenant to bring his affirmative claims in a separate proceeding.

The point here is, though, that the rule of the court permits the tenant to bring it in this proceeding.

Justice William H. Rehnquist: Oh, but the Court of Appeals has interpreted that rule?

Mr. Norman C. Barnett: Yes, Your Honor.

What the Court of Appeals has done is put a condition on the exercise of a constitutional right, and it certainly hasn’t shown any predominant state interest for the reason to put this condition on the right.

Justice William H. Rehnquist: Well, you’re not asking us at any rate to second guess the Court of Appeals as to what the rule of the Superior Court reads, are you?

Mr. Norman C. Barnett: No, Your Honor.

We’re not at all asking that, but the rule seems to be clear that the tenant could assert the counterclaim in the possessory action.

If the counterclaim is one which arises, one which would be tried by jury in 1791, then --

Justice William H. Rehnquist: Well, but that’s just what the Court of Appeals said that the rule didn’t mean, as I read it.

Mr. Norman C. Barnett: Well as I read it, Your Honor, the Court of Appeals said that the tenant may very well have the right to a jury trial if he brings his affirmative claims in a subsequent proceeding.

And, we assume that that means he has the right of jury trial on those claims.

Justice Thurgood Marshall: Does the rule say you can recover damages?

Mr. Norman C. Barnett: Yes, Your Honor.

Justice Thurgood Marshall: Which rule?

Mr. Norman C. Barnett: The rule specifically says that he can recover a money judgment.

Justice Thurgood Marshall: Money judgment in that action?

Mr. Norman C. Barnett: Yes, Your Honor.

I’ll read the rule to you.

Justice Thurgood Marshall: Well, then the Court of Appeals is wrong you say?

Mr. Norman C. Barnett: Pardon, Your Honor?

Justice Thurgood Marshall: And you say the Court of Appeals is wrong in its interpretation of its statute?

Mr. Norman C. Barnett: Your Honor, the Court of Appeals didn’t say that the tenant couldn’t bring the counterclaims in the possessory action.

It only said that when he does bring those claims in the possessory action, he waives his right to a jury trial on those claims.

Justice Thurgood Marshall: Well, could he file another claim for the damages with a jury?

Mr. Norman C. Barnett: In a separate proceeding.

Justice Thurgood Marshall: In a separate proceeding?

Mr. Norman C. Barnett: Yes, Your Honor.

We assume that he could.

There’s a question there whether or not there would be some collateral estoppel effect of the possessory action.

Justice Thurgood Marshall: But on the opinion of the Court of Appeals, you could sue and you could recover?

Mr. Norman C. Barnett: Yes, Your Honor.

Justice Thurgood Marshall: And that means the difference is filed in another lawsuit?

Mr. Norman C. Barnett: Yes, Your Honor.

Justice Thurgood Marshall: Which means $30.

That’s how it is, isn’t it, the court cost?

Mr. Norman C. Barnett: Well, it may be court cost, Your Honor, but the problems are, in terms of administration of justice, are quite serious because here we have two trials instead of one, the same witnesses, the same evidence, the issues on the possessory action and the counterclaims clearly overlap.

Justice Thurgood Marshall: Well, don’t you have some actions in equity where you can’t recover damages and if you want damages, you have to go over the laws of it?

Mr. Norman C. Barnett: Yes, that might be the case, Your Honor, but--

Justice Thurgood Marshall: It might be?

Mr. Norman C. Barnett: But we’re not dealing here with any equitable claims.

All the claims here are--

Justice Thurgood Marshall: But you’re dealing with damages?

Mr. Norman C. Barnett: Your Honor?

Justice Thurgood Marshall: You’re dealing with damages?

Mr. Norman C. Barnett: Yes, Your Honor.

Justice William O. Douglas: What is the Section you rely upon?

Mr. Norman C. Barnett: The --

Justice William O. Douglas: For damages?

Mr. Norman C. Barnett: The rule of the Superior Court, Your Honor.

I think it might be helpful if I read the rule to you.

Justice William O. Douglas: Where is it?

Chief Justice Warren E. Burger: In the appendix or brief?

Mr. Norman C. Barnett: I’m not sure where it is in the brief at this point, Your Honor.

It’s quite brief.

I think I could read it.

The rule provides, it’s Rule 5 (b) of the Landlord and Tenant Rules of the Superior Court.

“In actions in this branch for recovery of possession of property in which the basis of recovery is non-payment or rent or in which there is joined a claim for recovery of rent in arrears, the defendant may assert an equitable defense of recoupment or set off or a counterclaim for a money judgment based on the payment of rent or on expenditures claimed as credits against rent.

That’s the particular portion that’s found in our main brief, Your Honor, at page 7, quoted in part of --

Justice William O. Douglas: Main brief?

Mr. Norman C. Barnett: Our main brief at page 7, Your Honor.

It is quite clear at this date that the Seventh Amendment applies to the District of Columbia in Capital Traction versus Hof decided in 1899 this Court squarely held that the Seventh Amendment was applicable to the district.

The question then is the standard to be applied under the Seventh Amendment.

It is quite clear from various decisions of this Court that the Seventh Amendment preserves the right to jury trial as it existed in England in 1791 at the time of the adoption of the Bill of Rights.

Since 1830, this court, in Parsons v. Bedford and subsequently and most recently in Ross v. Bernhard in 1970, stated that the test to be applied to determine the Seventh Amendment right is to look to the closest historical counterpart of common law and determine there if the nature of the issue to be resolved is legal and, thus, triable by jury.

In other words, the reference must be to the right asserted and the remedy sought, and then to the actions in England in 1791.

The test does not require that there’d be a precise counterpart.

This was clearly pointed out.

It doesn’t matter if the statute -- if the present day action is embodied in a statute.

I think the point there is quite obvious that much of the common law has undergone an evolution and if any precise counterpart were required, then certainly the Seventh Amendment would be in anachronism.

Most of the recent cases involving the Seventh Amendment such as Beacon Theaters versus Westover, Dairy Queen v. Wood, and Ross v. Bernhard have arisen as a result of the merger of law and equity by way of the Federal Rules of Civil Procedure.

The problems of merger are not involved in this case because it’s never been suggested that a suit for possession, such as the present one, was ever within the jurisdiction of the Court of Equity.

It’s quite clear that actions for possessions of real property present, perhaps, the classic case of actions tried by juries at common law.

This Court, in Whitehead v. Shattuck and again restated in Ross v. Bernhard, indicated that action seeking to recover possession of real property are unmistakably legal actions and jury trial would, thus, be permitted.

At common law, since feudal times, there were several actions available to determine the right to possession.

Each had to do with particular circumstances of the case.

In our brief, we deal with the three-principle actions: the writ of assize of novel disseisin, the writ of entry, and the writ of ejectment.

These most closely --

Justice Potter Stewart: Ejectment, as I understand it or as I remember it from law school, was an action that tried title and forcible entry and detainer was an action to try the right of possession.

This is the latter, isn’t it?

Mr. Norman C. Barnett: This --

Justice Potter Stewart: This -- no issue of title is involved in this case?

Mr. Norman C. Barnett: No issue of title is involved in this case so --

Justice Potter Stewart: Purely the issue of the right of possession, wasn’t it?

Mr. Norman C. Barnett: Merely the right of possession, Your Honor.

Justice Potter Stewart: And as I remember that, that was tried at common law by a justices of the peace with 12 good men and true, but who were not considered to be the equivalent of a common law Seventh Amendment jury, isn’t that correct?

Mr. Norman C. Barnett: Your Honor, I think the --

Justice Potter Stewart: Am I --

Mr. Norman C. Barnett: Point here, firstly --

Justice Potter Stewart: I’m going pretty far back.

I don’t have any practice in this.

I haven’t thought about it in a long time.

Mr. Norman C. Barnett: The forcible entry and detainer which you speak of, Your Honor, is not precisely the same thing as what we have here.

What forcible entry and detainer is, today in the United States, is not the same as it was in England in 1791.

Justice Potter Stewart: Well, I thought -- but the point is -- your point is, isn’t it, that whether or not the Seventh Amendment right to jury is applicable depends upon the historical roots of what this --

Mr. Norman C. Barnett: No question, Your Honor, but our --

Justice Potter Stewart: -- district action is.

Mr. Norman C. Barnett: Yes, that is our point, Your Honor.

Justice Potter Stewart: Right.

Mr. Norman C. Barnett: And our point is that in England in 1791, which was the critical date for application of the Seventh Amendment --

Justice Potter Stewart: Right.

Mr. Norman C. Barnett: -- the forcible entry and detainer actions were purely criminal actions.

They had nothing to do with the right to possession.

They merely punished a person who entered by force.

Justice Potter Stewart: And those were the justice of the peace’s actions?

Mr. Norman C. Barnett: They certainly were, Your Honor, but justice of the peace--

Justice Potter Stewart: Not King’s Bench actions?

Mr. Norman C. Barnett: No, Your Honor.

Justice Potter Stewart: Is that correct?

Mr. Norman C. Barnett: No, ejectment was tried in the King’s Bench.

The assize entry --

Justice Potter Stewart: But, ejectment is to try title, isn’t it?

Mr. Norman C. Barnett: Not necessarily, Your Honor.

Justice Potter Stewart: I thought it was.

Mr. Norman C. Barnett: The ejectment at first of all, was purely to try possession.

And, most of the cases which talk about ejectment, it’s always says that the question in ejectment is, first, the right to possession, then, the right to title.

Title became -- the reason title got into ejectment is because the early title actions were very complicated.

The courts of the King’s Bench made it quite easy for parties to try title and ejectment.

What happened, ejectment became the one form of action to try possession around the 1700s.

During this period, it was the simplest action where anyone could try either possession or title, but there’s no question, but in 1791 they did try possession, but the forcible entry and detainer actions did not try possession.

They merely restored a party who was ousted by force back to possession, whether or not he had a right to possession.

And then, they left the parties to go their own way through the civil actions to determine the right to possession.

Another point, Your Honor, the justices of the peace in England in 1791 bear no correspondence to the justices of the peace as we think of them today or as they existed in the District of Columbia in the early 1800s.

They were courts of record.

They were held -- they were appointed by the king.

They held grand juries.

They tried all cases involving felonies, except treason.

In short, they were just the correspondents of our modern Criminal Courts.

There’s no question that a right to jury trial applied there, and we presume that the jury trial there was much the same as we consider it today.

Justice Potter Stewart: Well, then you do say that that justice of the peace, 12 men and true was the equivalent of a common law Seventh Amendment jury, do you?

Mr. Norman C. Barnett: We believe it was, Your Honor.

Justice Potter Stewart: I thought I’d learned otherwise in law school.

Maybe I was mis-taught.

Mr. Norman C. Barnett: It’s possible, Your Honor, it’s concerned about the question of 12 men versus more than 12 questions of challenges to juries.

It’s our understanding from what the authorities say.

There is a problem here that there isn’t a lot of information available.

We’ve attempted to research all the authorities and the most that we could find is that there was a jury trial and there were a jury trial in the sense that we have a jury trial today.

Justice Potter Stewart: The -- that’s the Hof case?

Mr. Norman C. Barnett: Yes, Your Honor.

Justice Potter Stewart: Held -- a decision by this Court held that a jury before the criminal justice of the peace here in the District of Columbia was not a Seventh Amendment jury, didn’t it?

Mr. Norman C. Barnett: Yes, Your Honor.

The basis for the decision in Hof was the fact that the justice of the peace in the District of Columbia did not have the power to instruct or superintend the jury.

He was a man who had not learned at law.

The basis of the decision really is that it wasn’t a court of record.

What Hof said, essentially, was that “well, maybe the premise should be laid” and between 1801 and 1864 the Justice of the Peace Court in the district, being the lowest court, had exclusive jurisdiction over all eviction proceedings.

They had jury trials.

The judge did not instruct them.

The jury merely decided the issue once the evidence was presented.

In 1899, long after this period of between 1801 and 1864, the court looking back said that the justice of the peace trials were not common law jury trials.

The court below attempted to rely on that as a break in the history of the right to jury trial, that if there is no question that Congress didn’t intend that these be jury trials, the courts in the district had always thought that the justice of the peace jury trials were common law jury trials.

Today, the entire problem doesn’t exist since we have available a court which can give a constitutional jury trial.

The point that we have made, Your Honor, I believe is the fact that the three common law actions which we cite: assize, entry, and ejectment were the principal actions to try the right to possession, and those actions were prevailing in 1791, the critical date for the Seventh Amendment, and therefore, today, we should have a jury trial on the action in the statutory proceeding.

Much has been said by the respondents in the amicus curiae about the fact that the proceeding that we have is a summary proceeding.

The argument there is that the summary proceeding is inconsistent with the right to jury trial.

They rely very heavily on this Court’s decision in Lindsey v. Normet.

In Lindsey, it was held that the State of Oregon did not violate the Equal Protection or Due Process Clauses of the Fourteenth Amendment by restricting the issues which could be raised in an eviction proceeding.

The law of the District of Columbia, as we noted, however, permits a tenant to defend a suit for non-payment on the basis of a breach of warranty.

Moreover, it also permits the counterclaims to be filed in the same proceeding.

It’s not a summary proceeding in the sense of the Oregon case.

But even notwithstanding that, Oregon itself permits such a jury trial in a far more summary proceeding than we have here in the district.

The term “summary” only applies to a shortened or simplified procedure such as restricting the litigable issues, short return dates, unnecessary responsive pleadings, and limited discovery.

The historians generally agree that assize of novel disseisin and entry were equally as summary as the present day eviction statutes.

Justice Thurgood Marshall: Can you give me any other case with -- on a jury trial, it’s a summary trial today where you take three weeks to pick a jury?

Mr. Norman C. Barnett: The point is, Your Honor, these cases go very quickly.

They’re very simple cases to try before a jury.

There’s no reason why a jury trial can’t be granted the same day as a judge trial.

It’s merely a scheduling problem.

We have six-men juries in the District of Columbia and --

Justice Thurgood Marshall: How many cases does the Landlord and Tenant Court handle in a day now?

Mr. Norman C. Barnett: Well, that may be a little misleading, Your Honor, the number of cases.

It’s obvious that the Landlord and Tenant Court handles thousands and thousands of cases, most --

Justice Thurgood Marshall: A day?

Mr. Norman C. Barnett: Pardon?

Justice Thurgood Marshall: A day?

Mr. Norman C. Barnett: Well, it’s hard to say a day, Your Honor.

Justice Thurgood Marshall: Hundreds a day -- hundreds a day.

Mr. Norman C. Barnett: In the year 1971, the court handled the 122,000 cases.

Justice Thurgood Marshall: Well, could they do that in many cases with juries?

Mr. Norman C. Barnett: No, Your Honor. It’s quite clear that they couldn’t.

Justice Thurgood Marshall: So, that’s the difference between summary and a jury trial, isn’t it?

Mr. Norman C. Barnett: It may not, Your Honor.

It’s a misleading question.

The point is or my answer, I’m sorry, the 122,000 figure really is meaningless because 97% of those cases are ended at the threshold.

They’re either default judgments.

They’re settled.

They’re dismissed.

It’s obvious that the landlords use the Landlord and Tenant Court as a collection agency, and the question is the payment of rent.

The jury trials --

Justice Thurgood Marshall: I don’t think you need to spend that much time with the word “summary” (Inaudible)

Mr. Norman C. Barnett: Alright.

One other point I think that is quite important is the practical abilities and limitations of jurors which the court referred to in Ross versus Bernhard.

The court noted there that this may be -- have a consideration on the applicability of the Seventh Amendment right.

The present action presents perhaps the best example of a case suitable for a jury determination.

As I indicated, the issues are not complex or technical.

They merely involve the question of habitability, a term very easily comprehended by jurors.

They can apply their common experience and their common sense to such a problem.

It’s judged in terms of the Local Housing Code which requires things like sanitary and safety conditions, adequate heat and hot water.

This -- the suitability is certainly amplified in light of the highly complex commercial disputes which are routinely submitted to juries in any trust matters or trademark infringements, and the like.

Also, I think it’s important to note that the social consequences of an eviction are very serious, perhaps the harshest of any civil remedy.

It results in eviction of the tenant.

His family is thrown in the street.

Certainly, this may be equally severe to a criminal conviction, and the use of a jury is certainly appropriate in such a proceeding.

Some of these are --

Justice Potter Stewart: Do you suppose that even if you shouldn’t prevail upon your historic argument, your basic constitutional argument, that you could still make an argument that Congress intended -- Congress intended that there’d be a jury trial and there is, therefore, an implicit statutory right to a jury trial here whatever the constitution or common law right may or may have not been?

In other words --

Mr. Norman C. Barnett: Yes and --

Justice Potter Stewart: -- as I understand it, there always was a statutory right until 1970.

And in 1970, the reorganization of the courts here in the District of Columbia, that language was omitted, but that the clear legislative history shows that the reason it was omitted is that Congress thought it wasn’t necessary that it was, to use the words of the committee report, superfluous.

And, don’t you think you could make an argument that there’s a statutory right to a jury regardless of whether you’re right or wrong on your historic and constitutional analysis?

Mr. Norman C. Barnett: I’m not quite sure, Your Honor, because the statute itself was repealed.

It’s clear that Congress didn’t intend to repeal the --

Justice Potter Stewart: But it’s very clear that Congress, is it not or am I mistaken that Congress thought it was unnecessary --

Mr. Norman C. Barnett: Congress thought --

Justice Potter Stewart: -- and that Congress intended to give a statute -- right to a jury.

Mr. Norman C. Barnett: There’s no question, Your Honor.

Justice William H. Rehnquist: Well, isn’t it more accurate to say that Congress thought the constitution gave a right to the jury?

Mr. Norman C. Barnett: Well, that’s what they said, Your Honor.

They specifically stated that we consider it superfluous in light of the constitutional right.

I think another important point is that, irrespective of the possessory action, we would have been entitled to a jury trial on our counterclaims as the results of the Beacon and Dairy Queen Doctrine.

As I indicated, the issues overlap.

There may be serious questions of collateral estoppel and the like.

If I may reserve the rest of my time.

Chief Justice Warren E. Burger: Very well, Mr. Barnett.

Mr. Miller.

Argument of Herman Miller

Mr. Herman Miller: Mr. Chief Justice and mem -- and the Court.

In connection with this particular question, I might say that the statute was repealed in 1970.

The statute was passed by Congress in 1921.

When the district Columbia took the Maryland law in 1899, they took it as they saw it in that particular time and, the question about forcible entry and detainer was a modern method then to get possession.

They have, of course, ejectment actions, but most of the time, they use a forcible entry and detainer.

This was not a jury trial because it was referred to two justices of the peace or commissioners who had no right to instruct the jury, had no right to grant a new trial, or tell the jury what the law was.

Now, this continued on until 1964 when a statute was passed, giving the Supreme Court at that time a right to hear these cases de novo and a jury trial in the Supreme Court if there was a loss in the Justices of the Peace Court.

Chief Justice Warren E. Burger: What year was that, Mr. Miller?

Mr. Herman Miller: In 1964.

I’m sorry, 1864.

Chief Justice Warren E. Burger: 1864.

Mr. Herman Miller: Now, this continued on until the Hof case was decided where a comprehensive discussion and review of the historical situation was made by Mr. Justice Story.

And, it was held at that time that the Justice of the Peace was not a common law court.

It was not a court of law because of the fact that I’ve just mentioned and decided that since the second part of the amendment said that no facts should be reviewed another court, the issue in that case was whether it was review of the facts in the Supreme Court and, it was held that though there was a hearing and a trial before the justices of the peace this was not a common law action and, therefore, was not a review.

This went on, as I said, until 1921 with the de novo proceedings.

Now, it was then when there was a reorganization of the court.

And the municipal court came into being, giving the rights and power to pass on slander and tort actions and so forth, that they, pardon me -- that they passed the law to state that a jury trial will be had in cases involving possession.

It's almost a repetitious of the Seventeenth -- Seventh Amendment.

All the language of the Seventh Amendment was there plus in all actions involving possession.

So, Congress gave the court the right to hear cases involving possession with a jury trial and took it away in 1970.

Congress, having the power to give it, has certainly the power to take it away.

Now, whatever may be the reason it was taken away, the fact is there’s no more jury trials in Landlord and Tenant cases.

I might say in that same connection that, although there was some attempt to the short analogy with respect to ejectment, the ejectment statute is still on the books.

It’s a cumbersome method.

It requires a number of elements to be shown before you can have ejectment.

You have to show title.

You also have to give the tenant a right to redeem in six months and causes a lot of damage and a lot of harm.

So, there’s no similarity between that and ejectment.

With respect to the other two, it has to do with the justice of the peace.

You still couldn’t get any common law trial before the justice of the peace because they were not a court.

Now, we got the statute of 19 --

Justice Byron R. White: Yes, but you could get it on the trial de novo?

Mr. Herman Miller: You could have it on a trial de novo --

Justice Byron R. White: Well, you had a right eventually to a jury trial?

Mr. Herman Miller: Yes, in the Supreme Court --

Justice Byron R. White: And -- so, what do you say about that?

Mr. Herman Miller: Well, in that connection, that was repealed in 1921.

In 1921, they gave the Municipal Court, which was generally the organizations of that court, the right to hear jury trials --

Justice Byron R. White: So there has been continuously a right to a jury trial?

Mr. Herman Miller: This was a statutory proceeding.

It does not exist in 1799 in England, and had no relevancy between the two procedures.

There was no trial de novo in England and was --

Justice Byron R. White: Do you think there was a constitutional right to a jury trial before 1921 under the -- in connection with the procedure that was then employed?

Mr. Herman Miller: No, because of the number of cases showing that there was no common law court in which such an action could be had before a jury.

Justice Byron R. White: Well, what’s common law Court of Appeal on trial de novo?

Mr. Herman Miller: This was a statutory proceeding in 1864.

It never existed before that particular date.

So, therefore, it couldn’t have been in existence in England in 1799 when the matter first came to the attention of the District of Columbia.

So, I don’t see how they could they say that you had a jury trial at that particular time as a result of legislation and not common law.

There was no common law right to it.

Before the Hof case said that there was no common law proceeding in such a -- I’m sorry, such a proceeding.

And, the only kind of a jury trial you could have is before the commissioners who merely drew the 12 men and had no right to instruct the jury to do otherwise.

Now in 1921, as I say, the right was given to the Municipal Court and then it was taken away.

Now with respect to the second point made by the petitioner that because he has filed a counterclaim, recoupment is set-off, this gives him a right to a jury trial.

Of course, if that is so, that would be present in every one of these 122,000 cases.

Such a claim could be made in that and deprive the landlord of his property while the tenant litigates what he claims to be his rights, as criticized by this Court in the Normet case.

The Normet case said that the landlord shouldn’t be required to stand by while he litigates those things.

And when you go into that particular branch of the procedure, there’ll be discovery and all kinds of reasons for delay.

My experience had been, and I guess I had more of Landlord and Tenant cases than anybody in the city.

That these land -- when we did had a jury right under 13702, the jury claim was made and interposed merely for delay because practically every one of the cases at least result in a tenant moving out owing four or five months rent or a settlement of some kind.

And, as I am informed by the clerk, that out of 600-somewhat cases juries demands were made, there are only six that were tried in the last year before the abolition of the jury system by this particular case.

Now it is also shown, it seems to me, that the creation of the right to claim the money for violations of the housing regulations in Javins was never recognized by the Javins case as a legal claim.

It was purely an equitable claim.

And on page 19 of the amicus curiae brief, there is a referral by Judge Wright as to what had happened with respect to the Doctrine, and it concludes by this language.

“A remedy for every wrong is not cognizable by the courts of law and the complexities of the present so sure have brought about conditions which were unknown when the English Courts of Equity was established.

It was realized and the lower court’s decision was on the basis that when a claim of this type is made, it’s purely equitable because in the cited case of Molyneaux versus Townhouse, the claim for non-payment of rent is made and if the tenant can show he paid the rent or he had a right to pay it, this would give him a right to equitable conversion and have his tenancy reestablished.”

In other words, it was purely a suit as to whether the rent was due.

If the rent was due, he, the tenant had a right to tender all the rents and that, would reinstate his tenancy.

So, that was all purely equitable0 and the defense’s recoupment is set-off and counterclaim were considered by the lower court as being purely equitable in nature and therefore not triable by a jury.

And, therefore, the Dairy Queen case has no application because, there, the issues were legal and equitable and here they are purely equitable.

To show, with respect to a jury trial, the summary action would be destroyed completely.

The Code Title 16-1501 makes the complaint returnable in seven clear days.

It is only necessary if you cannot find the defendant to post a summons on the door.

Justice William H. Rehnquist: Mr. Miller, I understand your opponents’ contention to be this really isn’t a summary action in the classic sense of the word, that the rule itself allows the pleading of these defenses?

Mr. Herman Miller: You mean Rule 5?

Justice William H. Rehnquist: Yes.

Mr. Herman Miller: Well, I have some difficulty with Rule 5.

Although it was not mentioned in my brief, it does not do complete justice.

As recited Rule, the Rule 3 allows the landlord to ask for a personal money judgment if the tenant makes a claim for recoupment set-off and counterclaim.

But, in footnote number 64 in the Javins case, it has been said that if the tenant caused the damage, then this was not be a defense of the landlord’s claim.

Now, if the tenant caused the damage, the landlord has a right of action for that damage.

He can’t make it in this particular claim because there’s no provision in the rule.

Then, he’s got to file his own independent action to make his claim while the tenant goes ahead with his claim and it is tried it seems to me.

In order to have a due process situation, all the claims should be litigated in one particular action and this cannot be done under Rule 5 (c) and that’s --

Justice William H. Rehnquist: Well, you don’t challenge Rule 5 (c), do you, as being governing in a case like this unless there’s a constitutional impediment to it?

Mr. Herman Miller: I say that that may be in opposed but not in a jury trial, instead, enlarge the remedy to a jury trial.

The tenant may file these kinds of claims in the particular action, have a court trial and if he can show by these defenses that there’s no rent due, the case of the landlord falls.

That would be the end of it, but to litigate these kinds of things to a full blown action of law would destroy the summary nature of the proceeding.

Chief Justice Warren E. Burger: Mr. Barnett.

Rebuttal of Norman C. Barnett

Mr. Norman C. Barnett: Thank you, Your Honors.

Just briefly, I’d like to reply to a question that Mr. Justice Stewart had asked earlier regarding the 12 men good and true and the juries which existed in common law.

I think that I failed to indicate the fact that this Court has certainly recognized the fact that the jury system has been evolving for centuries.

The point being that the Seventh Amendment doesn’t protect the procedural incidence of a jury trial. It merely protects the substance.

And, it’s quite clear that the substance of jury trial in 1791 was quite the same as it is today.

As we have traced the history, perhaps maybe too far, back to the 11th -- 12th Century, of course we have to realize the juries were undergoing change during that time and this is when juries were first being formulated.

Mr. Miller’s argument appears to be directed at what occurred after 1791, the Hof case and most of the problems there.

Anything occurring after 1791 appears to be irrelevant for the jury determination.

The Ross test seems to be clear that we have to look to the common law of England in 1791.

In Hof, I think it’s important to show that the mistake that was made that the courts and everyone in the District of Columbia thought that the justice of the peace jury trials were common law jury trials, they tried debt actions over $20.

They’re jurisdiction -- they’re exclusive jurisdiction was up to $50, I believe, at some point during that time.

Mr. Miller has also indicated that the -- for some reason, the tenants are going to file counterclaims and the 122,000 cases, this is really unrealistic.

It’s quite clear that jury trials are not demanded except in the very few cases.

As he indicated himself, only eight trials occurred in 1971, eight jury trials.

I think 17cases went to jury and 9 settled before the jury rendered a verdict.

Chief Justice Warren E. Burger: But he said 600 demands were made for dilatory purposes?

Mr. Norman C. Barnett: Yes, Your Honor.

Well, of course he characterizes this as a dilatory purpose.

It’s quite obvious that landlord-tenant cases, like any other case where jury demands are filed, that most cases settle the trial problems: attorneys not having time to go to trial, this type of problem, and the parties just wanting to settle.

These cases settle much easier than a normal civil action.

The question of dilatoriness is certainly Mr. Miller’s characterization.

In fact, the landlord is quiet adequately protected in these proceedings because of this protective procedure which Judge Wright set out in the Javins decision and later amplified in another case, Bell versus Tsintolas Realty.

That procedure permits the landlord or requires the tenant to put into the registry of the court the pending rent during the -- the rent pending the proceeding until the trial date comes up. Certainly, what the landlord is seeking in these cases is the rent and, of course, as long as he’s protected, the court has held of the money in an escrow account which it can disperse at the end of the case, he’s fully protected.

So it’s certain now that the backlog doesn’t affect the landlord, if there is a backlog at all.

In 1971, the Chief Judge of the Superior Court issued a ruling whereby jury trials in landlord and tenant cases were to take place three weeks after the return date, within three weeks after the return date.

Justice William H. Rehnquist: What if the tenant fails to put the money into escrow in a given month?

What consequences befall him?

Mr. Norman C. Barnett: Judgment would be rendered for the landlord.

Justice William H. Rehnquist: In effect, a default a judgment on the landlord’s complaint?

Mr. Norman C. Barnett: Yes, Your Honor.

As I indicated the Chief Judge had imposed a three-week limit on jury trials.

This is at the time when the question was in dispute before the decision of the court below.

In practice today, judge trials in the Landlord and Tenant Court are backlogged anywhere from four to six weeks.

So the delay argument, the dilatoriness, I think, really means nothing.

Finally, I’d like to conclude, Your Honor, just by noting the historical linage in this case being so clear.

Mr. Miller certainly hasn’t shown us anything that takes away from that and the court has, on numerous occasions, indicated that all possible doubts regarding the Seventh Amendment should be resolved in favor of a jury trial.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.