Earl Warren: -- 61, C. Lee Buxton, Appellant, versus Abraham (Inaudible)
Felix Frankfurter: Before you proceed, I'll ask you a few questions about the nature of these prosecutions in Connecticut. Has there been any prosecution brought that led to a conviction or led to a trial so far as you know?
Raymond J. Cannon: The only -- that I recall is State versus Nelson, Your Honor.
Felix Frankfurter: But Nelson wasn't a trial. That's (Voice Overlap)
Raymond J. Cannon: No, there was -- there has -- there has been no trial.
Felix Frankfurter: There's had been no trial. So far as you know there's been none under this statute in Connecticut.
Raymond J. Cannon: That's correct, Your Honor.
Felix Frankfurter: Can a doctor be prosecuted for aiding and abetting. Can a doctor to be prosecuted for aiding and abetting unless there's been a crime committed by somebody who used or to seem to be offensive materials design and that the aider and abettor was without a being a principal.
Raymond J. Cannon: That is probably true, Your Honor. In the case of State versus Nelson, there was an actual test case which they invited me for which there was no trial.
Felix Frankfurter: Well, this case merely means that there's an allegation and an information.
Raymond J. Cannon: That's correct.
Felix Frankfurter: As long as you got a piece of paper and pencil, you can write anything on the piece of paper. What I want to know is there ever a prosecution under this legislation --
Raymond J. Cannon: No, Your Honor.
Felix Frankfurter: To examine it, that led to a trial, not in a trial. Could there be a prosecution of a doctor unless there's a crime for use?
Raymond J. Cannon: Well, I'll have to confess, Your Honor, we do not. Our office has no jurisdiction in criminal matters in Connecticut. It is handled by the office of the district attorney.
Felix Frankfurter: But you're representing -- you're representing the State here and I just want to know what takes place under this law or can take place under this law, or what has taken place under this law, or what could take place under this law.
Raymond J. Cannon: Well, I'm not completely familiar with that, Your Honor.
Felix Frankfurter: Could there be a prosecution under the use statute unless somebody proved the use?
Raymond J. Cannon: I think that's correct, it still have to be used.
Felix Frankfurter: In the Connecticut, can a husband be called to testify against the wife or vice versa?
Raymond J. Cannon: No, Your Honor, except for criminal matters.
Felix Frankfurter: But as we talk about a theoretical thing here.
Raymond J. Cannon: It is to a large extend academic.
Felix Frankfurter: But to what extent is it?
Raymond J. Cannon: Well, it's on the books and statutes and it has a deterring effect so far as the regulations of the moral power of the people in the State of Connecticut. There are --
Felix Frankfurter: How do you know that? How do you know that?
Raymond J. Cannon: Well, I do not know. As a fact, I assume that's the purpose of the statute. It's what the -- our Supreme Court said with the purpose of the statute when their opinion of State versus Nelson.
Felix Frankfurter: Is the birth control -- is the birth rate in Connecticut appreciably higher than any other State in the union? States where there are low birth control legislation?
Raymond J. Cannon: At a per capita basis, I do not know that, Your Honor.If I may address myself to the question of Justice Frankfurter profound last evening is, “What's -- what is the place of free speech in the hierarchy of freedom?” I would say free speech is probably the chief element of liberty, when the Government has been upon invading personal liberty, the first thing they attack is free speech and furthermore free speech is aid in protecting the other elements of liberty. If I may proceed, I like to comment a little upon the facts. First of all in the Poe case, that is a tragic situation. Of course, Mrs. Poe had three children, each of which died shortly after birth and/or complications. And their allegations (Inaudible) pregnancy would be just probably disturbing mentally and physically to the health of the parents. The Jane Doe case, it is alleged that Mrs. Doe was admitted to the high court -- to the hospital in New Haven with a hypertension cardiovascular disease accompanied with pregnancy. Three days later, January 28, 1957, she had a cerebral hemorrhage which resulted in a right hemiplegia and (Inaudible) of the right side and right paralysis of the right leg and right arm and residual kidney damage, mild impairment of speech and emotional instability. It's interesting to note that in this particular case, the husband is not a party to this action. Why he was omitted, I do not know. But Mr. Doe does not claim the invasion of any constitutional rights. It would seem to me under these conditions that he probably recognizes the unfortunate situation with which he is burdened and has assumed to stand by his wife in accordance with the vow he took at marriage, “For better or for worst or in sickness and health. As a matter of fact, in their briefs, I find very little argument which the appellants devote to these particular unfortunate individuals. The chief claim of (Inaudible) constitutional in these statutes is that the statute forbids the use of artificial means of contraception and try to (Inaudible) which they claim the majority of the people. They say -- they claim that modern thinking has changed and that as a result of this, the statute is now unconstitutional. They do not in fact practice now the statute as of its passage. There's no claim, as I understand it, it is void ab initio.But to be unconstitutional, it seems to me, that means as if a statute where never written in the first place. It's also argued in their brief, in their substantial portions to their brief devoted to the problem of population explosion. I submit that these issues are not a proper test to determine whether or not the Connecticut statute is in fact constitutional by their very arguments and by the fact that they site various religious beliefs. It seems to me that they concede by these facts that it is a moral problem.
Speaker: Problem? Now, can I ask you question? Could Connecticut constitutionally pass a law prohibiting (Inaudible)
Raymond J. Cannon: No, Your Honor. (Inaudible) say no.
Speaker: (Inaudible) to members of the -- the Catholic faith and the Orthodox Jewish religion, which the claimants say that they uphold artificial means of birth control?
Raymond J. Cannon: I would like to point out to the Court the report in which this period in the paper under Associated Press of last week, February 24, 1961 where the National Church Council endorsed birth control at their meeting in Syracuse. This is the quotation or from the news, “The council represents 35 Protestant and Orthodox denominations with 40 million members but Orthodox delegates formally abstain from the action. Their church traditionally condones only sexual abstinence to regulate birth. I site that -- may I please the Court, not necessarily to rebut the claim but to point out that there is a controversy in this field and there was various loops and segments of the population believe one thing and others believe another. And when a statute (Inaudible) enacted by the state legislature, then I -- we submit that it is part of legislature to resolve the question of -- now, in addition to the present ligation, there also other cases pending in the State of Connecticut attacking the statute. I cite these -- the primary proponent of this -- this final attack on the Connecticut statute, and my opinion is the (Inaudible) We have the case Tileston versus Ullman which was mentioned in the brief but wasn't (Inaudible) at that time and since it's been argued in the Supreme Court and the Supreme Court upheld the demurer which was filed. That case represented a situation where according to the allegations, Mr. and Mrs. (Inaudible) were 21 years of -- 21 years -- and her husband is 23 years old. They were of age and they were both (Inaudible) In 1959, they consulted a physician to obtain information if medical service is the best safest method for the prevention of conception. They were married (Inaudible) and they would find an effort to adjust themselves spiritually, physically before becoming a parent then to acquire sufficient economic means, so if there's any children were born, they might bring them up in optimum care, attention and devotion. The Supreme Court of (Inaudible) said we find nothing in the concept alleged by the plaintiffs on the factor side in the complain in connection there which -- therewith which would warrant a conclusion that the right (Inaudible) situation of the plaintiff have not already have been previously determined by the decisions of this Court. There are -- in addition to those two cases -- or that case, there are two other cases pending in the Superior Court of Hartford County in which two ministers are claiming that the statute infringes the right of free speech. Those cases are on the docket and have not been tried with no demurer filed here because the Supreme Court never decided that particular issue on the cases which you were presented and they felt that the demurer was not the proper mode of procedure. But nevertheless, they're still pending in the Superior Court of New Haven and to that I might remark that (Inaudible) has been taken to this court in the Truax case which was filed very recently.
Earl Warren: Are you -- Are you suggesting, Mr. Cannon, that perhaps we ought to hold this case until your Supreme Court of Connecticut does make some law in this subject to deal with the fact that there have been no prosecutions and nobody or law in your Supreme Court which might limit this statute anyway that (Inaudible)
Raymond J. Cannon: No, Mr. Chief Justice, I do not go that far.I do not claim that it should be delayed until all the cases are determined. It would seem to me in the basis of the decisions of our Supreme Court in the cases Nelson and Tyler and also in the present cases that the matter is here and probably the issue should be decided by this Court as to whether or not the State has its right to enact this type of legislation. It is our respect that the use of artificial means of contraception (Inaudible)
Earl Warren: But I wondered why you are -- why you are reciting the number of cases that are -- are on file and also the fact that in some cases, they -- they (Inaudible) go to trial even though your Supreme Court has held in this case that the demurer lies.
Raymond J. Cannon: Well, the allegations in the complaints that are filed in New Haven made it very difficult to file a demurer. I'm going to say it's because of the claim of free speech as to how it would infringe upon a clergyman's right to free speech. If this is a medical problem, which these appellants claim it is, and they have cited the various medical authority for that purpose, then obviously a clergyman can't give medical advice and it wouldn't be an infringement of free speech. We do conceive that everyone has the right to argue against the law and speak against it and advocate its repeal or amendment. There is no question about that. Those arguments and the reasons are put forth in the political arena and not before the Court. That is our claim. Well, in brief, as it may please the Court, it is our claim of course that a state policy regarding the manner in which it controls the moral and social standards of people should be offset because it runs contrary to (Inaudible) of certain sociological and psychological or medical experts. A statute of this kind, if it's constitutional, we submit (Inaudible) because the State has exclusive jurisdictions over the morals of its people to legislate what is and what will not be a crime. For that, the statute being constitutional (Inaudible) until it's reversed or appealed or limited by legislation (Inaudible)
Speaker: The purpose of this statute with the respect to the morals of the people of Connecticut or what is its relationship to control or the -- or the uplifiting of the morals of the people?
Raymond J. Cannon: The Supreme Court in the Nelson case, as I recall, started from a case next to the Gardner case and they said that the purpose of the statute was to promote, restraint, based on the defense of the merits and (Inaudible)
Speaker: (Inaudible) the statute operates to inhibit an oral merit, doesn't it?
Raymond J. Cannon: No, Your Honor, I can't agree with that, if I may, because I don't think it inhibits a normal marriage. It recognizes what the responsibilities and obligations (Inaudible) bring about a situation where there is some danger to the -- the wife because of a pregnancy and then it seems to me that by virtue of the vow taken originally, that comes into play and perhaps (Inaudible) to that vow because we know that although divorce is tolerated, it's not promoted, it's not encouraged by the law and divorce is granted when there's no other situation to relieve a condition which the State (Inaudible) use of contraceptive.
Hugo L. Black: Does it necessarily (Inaudible) that the State and State of Connecticut has or use (Inaudible) other kinds of factors that are more characters that the State, as I understand it, by dealing with the problem short of this kind of a statute?
Raymond J. Cannon: As I understand your question correctly, Your Honor, it is question of whether to make it regulated in some other facts or still in use. Its traffic in artificial contraceptive is subject to regulation would seem to me would also be subject to regulations so far as (Inaudible) is concerned as well as advertising or promoting (Inaudible)
Speaker: (Inaudible) not that we agree that or --
Raymond J. Cannon: It started with the assumption rather that the statute is constitutional in operating in a proper field that the State has jurisdiction. (Inaudible) said that the meaning of such article would not violate a federal statute (Inaudible)
Speaker: It would seem to hold that or refer that by dicta which is a federal (Inaudible), what do you think would happen in Connecticut (Inaudible)
Raymond J. Cannon: I do not know (Inaudible)
Speaker: (Inaudible)
Raymond J. Cannon: I claim no, Your Honor, because we have statutes in Connecticut forbidding (Inaudible) The statute here is applied to married people though no one in Connecticut can (Inaudible) for any recognized legitimate purpose under the Connecticut statute (Inaudible)


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.
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.
Potter Stewart: Did the trial court deal with the tenant’s counterclaims?
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.
Potter Stewart: And had ruled against the tenant?
Norman C. Barnett: Yes, Your Honor.
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?
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.
William H. Rehnquist: Oh, but the Court of Appeals has interpreted that rule?
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.
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?
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 --
William H. Rehnquist: Well, but that’s just what the Court of Appeals said that the rule didn’t mean, as I read it.
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.
Thurgood Marshall: Does the rule say you can recover damages?
Norman C. Barnett: Yes, Your Honor.
Thurgood Marshall: Which rule?
Norman C. Barnett: The rule specifically says that he can recover a money judgment.
Thurgood Marshall: Money judgment in that action?
Norman C. Barnett: Yes, Your Honor. I’ll read the rule to you.
Thurgood Marshall: Well, then the Court of Appeals is wrong you say?
Norman C. Barnett: Pardon, Your Honor?
Thurgood Marshall: And you say the Court of Appeals is wrong in its interpretation of its statute?
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.
Thurgood Marshall: Well, could he file another claim for the damages with a jury?
Norman C. Barnett: In a separate proceeding.
Thurgood Marshall: In a separate proceeding?
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.
Thurgood Marshall: But on the opinion of the Court of Appeals, you could sue and you could recover?
Norman C. Barnett: Yes, Your Honor.
Thurgood Marshall: And that means the difference is filed in another lawsuit?
Norman C. Barnett: Yes, Your Honor.
Thurgood Marshall: Which means $30. That’s how it is, isn’t it, the court cost?
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.
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?
Norman C. Barnett: Yes, that might be the case, Your Honor, but--
Thurgood Marshall: It might be?
Norman C. Barnett: But we’re not dealing here with any equitable claims. All the claims here are--
Thurgood Marshall: But you’re dealing with damages?
Norman C. Barnett: Your Honor?
Thurgood Marshall: You’re dealing with damages?
Norman C. Barnett: Yes, Your Honor.
William O. Douglas: What is the Section you rely upon?
Norman C. Barnett: The --
William O. Douglas: For damages?
Norman C. Barnett: The rule of the Superior Court, Your Honor. I think it might be helpful if I read the rule to you.
William O. Douglas: Where is it?
Warren E. Burger: In the appendix or brief?
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 --
William O. Douglas: Main brief?
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 --
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?
Norman C. Barnett: This --
Potter Stewart: This -- no issue of title is involved in this case?
Norman C. Barnett: No issue of title is involved in this case so --
Potter Stewart: Purely the issue of the right of possession, wasn’t it?
Norman C. Barnett: Merely the right of possession, Your Honor.
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?
Norman C. Barnett: Your Honor, I think the --
Potter Stewart: Am I --
Norman C. Barnett: Point here, firstly --
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.
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.
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 --
Norman C. Barnett: No question, Your Honor, but our --
Potter Stewart: -- district action is.
Norman C. Barnett: Yes, that is our point, Your Honor.
Potter Stewart: Right.
Norman C. Barnett: And our point is that in England in 1791, which was the critical date for application of the Seventh Amendment --
Potter Stewart: Right.
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.
Potter Stewart: And those were the justice of the peace’s actions?
Norman C. Barnett: They certainly were, Your Honor, but justice of the peace--
Potter Stewart: Not King’s Bench actions?
Norman C. Barnett: No, Your Honor.
Potter Stewart: Is that correct?
Norman C. Barnett: No, ejectment was tried in the King’s Bench. The assize entry --
Potter Stewart: But, ejectment is to try title, isn’t it?
Norman C. Barnett: Not necessarily, Your Honor.
Potter Stewart: I thought it was.
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.
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?
Norman C. Barnett: We believe it was, Your Honor.
Potter Stewart: I thought I’d learned otherwise in law school. Maybe I was mis-taught.
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.
Potter Stewart: The -- that’s the Hof case?
Norman C. Barnett: Yes, Your Honor.
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?
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.
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?
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 --
Thurgood Marshall: How many cases does the Landlord and Tenant Court handle in a day now?
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 --
Thurgood Marshall: A day?
Norman C. Barnett: Pardon?
Thurgood Marshall: A day?
Norman C. Barnett: Well, it’s hard to say a day, Your Honor.
Thurgood Marshall: Hundreds a day -- hundreds a day.
Norman C. Barnett: In the year 1971, the court handled the 122,000 cases.
Thurgood Marshall: Well, could they do that in many cases with juries?
Norman C. Barnett: No, Your Honor. It’s quite clear that they couldn’t.
Thurgood Marshall: So, that’s the difference between summary and a jury trial, isn’t it?
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 --
Thurgood Marshall: I don’t think you need to spend that much time with the word “summary” (Inaudible)
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 --
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 --
Norman C. Barnett: Yes and --
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?
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 --
Potter Stewart: But it’s very clear that Congress, is it not or am I mistaken that Congress thought it was unnecessary --
Norman C. Barnett: Congress thought --
Potter Stewart: -- and that Congress intended to give a statute -- right to a jury.
Norman C. Barnett: There’s no question, Your Honor.
William H. Rehnquist: Well, isn’t it more accurate to say that Congress thought the constitution gave a right to the jury?
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.
Warren E. Burger: Very well, Mr. Barnett. Mr. Miller.
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.
Warren E. Burger: What year was that, Mr. Miller?
Herman Miller: In 1964. I’m sorry, 1864.
Warren E. Burger: 1864.
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 --
Byron R. White: Yes, but you could get it on the trial de novo?
Herman Miller: You could have it on a trial de novo --
Byron R. White: Well, you had a right eventually to a jury trial?
Herman Miller: Yes, in the Supreme Court --
Byron R. White: And -- so, what do you say about that?
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 --
Byron R. White: So there has been continuously a right to a jury trial?
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 --
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?
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.
Byron R. White: Well, what’s common law Court of Appeal on trial de novo?
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.
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?
Herman Miller: You mean Rule 5?
William H. Rehnquist: Yes.
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 --
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?
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.
Warren E. Burger: Mr. Barnett.
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.
Warren E. Burger: But he said 600 demands were made for dilatory purposes?
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.
William H. Rehnquist: What if the tenant fails to put the money into escrow in a given month? What consequences befall him?
Norman C. Barnett: Judgment would be rendered for the landlord.
William H. Rehnquist: In effect, a default a judgment on the landlord’s complaint?
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.
Warren E. Burger: Thank you gentlemen. The case is submitted.