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TORT REPORT: Wis. high court examines constitutional right to jury trial

Andrew Christman is an associate at McCoy Law Group SC, Waukesha. The firm has a civil litigation practice that includes insurance defense, construction disputes and commercial/business litigation.

It is a foundation of our criminal justice system that those accused of a crime are entitled to a jury of their peers.

In civil cases, however, that right is less concrete. In fact, in civil cases where the constitutional right to a jury is questioned, the courts must look back to the early days of Wisconsin statehood to determine if a claimant is constitutionally entitled to a jury.

In June, the Wisconsin Supreme Court clarified the law regarding the right to a jury in civil cases when it upheld a $9 million verdict against a pharmaceutical manufacturer for deceptive trade practices and Medicaid fraud. State v. Abbott Labs, 341 Wis. 2d 510, 816 N.W.2d 145 (2012).

The court upheld the jury finding that Pharmacia, a large pharmaceutical company, reported inflated average wholesale drug prices which caused Medicaid to overpay for prescription medication. On appeal, Pharmacia and its co-defendants alleged that the state was not constitutionally entitled to a jury trial on the deceptive trade practices claims and the Medicaid fraud claims.

The Supreme Court made clear that unless the right to a jury trial is provided in the statute that creates the cause of action, the right to a civil jury trial only exists constitutionally as it did at the time the Wisconsin Constitution was adopted in 1848.

In many cases the right to a jury is not questioned. For example, a claimant is, of course, entitled to a jury in a tort claim like an auto accident. As laws change, technology grows, and new causes of action are created, the constitutional right to a jury becomes less clear. In instances where the right to a jury trial is questioned, Wisconsin courts apply a test in which they determine whether there was a counterpart claim in 1848 that would have allowed for a jury trial. See Village Food & Liquor Mart v. H&S Petroleum Inc., 254 Wis. 2d 478, 647 N.W.2d 177(2002).

The reason for the historical focus of this test lies in the wording of the Wisconsin Constitution. Article I, Section 5 of the Wisconsin Constitution states that “[t]he right of trial by jury shall remain inviolate, and shall extend to all cases at law.” The Wisconsin Supreme Court has determined that this language, “shall remain inviolate,” means that the right to a jury trial is preserved as it existed in 1848.

A strict application of that test may lead to the assumption that in Abbott Labs, the state was not entitled to a jury trial. After all, Medicaid certainly did not exist in 1848, and therefore there could have been no claim for Medicaid fraud in 1848. The court does not apply the test so strictly, however. The court looks to see if there is an analogous claim in existence in 1848.

In Abbott Labs, the court said that the deceptive trade practices act claim was analogous to the common law claim of “cheating,” and that the Medicaid fraud claim was analogous to common law fraud. With both causes of action, the Supreme Court looked at the elements necessary to prove each claim and compared them to the elements of their common law counterparts.

Exact symmetry is not required; rather, the old and new causes of action must be sufficiently similar and have a similar purpose to be considered essential counterparts.

Though the state prevailed in this instance and had a constitutional right to a jury, it is not always the case. It is ultimately the past that will dictate what future cases have a constitutional right to a civil jury.

2 comments

  1. This is an interesting article on an interesting topic. My reading of the jury trial clause \shall remain inviolate\ is not that it is frozen in time but that it cannot be taken away or interfered with. One must remember the state constitution involved a grant of power from the people to form a government. Does it make sense that the people would want to limit their rights by keeping them frozen in time? No. It means the right cannot be interfered with, not that it is limited to claims known in 1848.

  2. Nick, that is a great point and the fact that the constitution is a grant of power from the people impacts this body of law. I think the case law in this area makes it clear that the wording I discuss above does not limit rights and keep them frozen in time but rather just shifts the expansion of rights to a different mechanism. I only briefly mention it above but the right to a jury trial can be granted by the legislature in statutes that it creates. The grant of power to the legislature in the constitution and the legislature’s ability to create new laws has simply moved the ability to create a right to a jury trial from the common law as it existed in 1848 to the legislature. You are correct to note that “shall remain inviolate” does mean cannot be taken away, and indeed the rights to a jury trial cannot be lessened from what they were at the time the constitution was passed. This body of case law however, does show that for causes of action that are not similar to a cause of action that existed in 1848, there must be language in the statute that allows for a jury trial.

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