In the Declaration of Independence one of the stated reasons justifying revolution was the fact that King George was depriving colonial citizens: “in many cases of the benefits of Trial by jury.” Thus, it was not surprising that when the American Constitution was passed in 1788 the right to trial by jury in criminal cases was expressly assured in Article III, Section 2. Nor was it surprising in 1791 when the passage of the Bill of Rights included, in the 7th Amendment, the extension of the right to trial by jury to all civil cases in which more than $20 was in dispute.
On March 2, 1836, the Texas Declaration of Independence from Mexico was signed. It was equally explicit in one of the principal reasons justifying separation from Mexico:
It [Mexico] has failed and refused to secure, on a firm basis, the right of trial by jury, that palladium of civil liberty, and only safe guarantee for the life, liberty, and property of the citizen.
Thus, when the Texas Constitution was enacted 40 years later, in 1876, the drafters expressly preserved the right to trial by jury for citizens bringing suit in Texas state courts:
The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency.
Tex. Const., Art. I, Sec. 15.
Just to be sure no one misunderstood the point, in a later provision the Texas Constitution provided:
In the trial of all causes in the District Courts, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury.
The drafters went on to provide, in Art. I, Sec. 29, even further protection of these constitutional rights:
To guard against transgressions of the high powers herein delegated, we declare that everything in this “Bill of Rights” is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.
Pretty strong stuff, and intentionally so. But, tragically, the right to trial by jury has been systematically eroded by the courts since then. On Friday, March 9, 2012, the Texas Supreme Court issued an opinion in the case of In re Frank Kent Motor Co., which represents a new low in the assault of the constitutionally-protected right to trial by jury. The opinion and briefs are at http://www.supreme.courts.state.tx.us/opinions/Case.asp?FilingID=31811. The history of the case helps explain its significance.
In 1980, when he was just 31 years old, Steven Valdez took a job as a mechanic at Frank Kent Cadillac in Fort Worth. On April 4, 2008, after 28 years of service with the Cadillac dealer, Valdez was told to sign a newly-enacted employee handbook, containing a waiver of the right to trial by jury for any work-related complaints. Valdez did not understand but sensed he should not sign the handbook. However, he was told that if he continued to refuse he would be fired on the spot. Of course, he signed.
Valdez heard rumors that the company wanted to replace the older mechanics in the service department with younger workers. Unfortunately, this has become a common way to reduce labor costs by replacing older workers with younger workers at lower hourly wages. However, under the EEOC and its state counterpart, the Texas Commission on Human Rights Act, the practice is illegal and actionable if it disproportionately affects workers over the age of 40.
In 2009, the 59 year old Valdez was fired for a single instance of alleged malfeasance in the repair of a car satellite radio, a charge Valdez vehemently denied. Valdez immediately filed a complaint with the EEOC, contending that the reason for termination was pretextual, and that in fact it was part of a plan to get rid of older, higher-salaried employees in violation of federal and state law. After going through the requisite administrative hurdles, Valdez filed his lawsuit in state district court in Fort Worth. He also filed a request for trial by jury.
Lawyers for Frank Kent Motors immediately filed a motion to strike Valdez’s jury demand, contending Valdez had knowingly and voluntarily waived his right to trial by jury by signing the employee handbook. Valdez responded that the waiver was not enforceable because it was secured by coercion. The trial court agreed with Valdez’s counsel, denying the dealer’s motion to strike the jury request, and stating on the record:
Well, I don’t like to dally around…. I got problems with granting it [the motion to strike the jury demand] because of the constitution. And if I’m wrong, I’m wrong. That’s what they got those guys [the appellate courts] up there for.
In its appeal to the Texas Supreme Court, Frank Kent relied on a 2004 Texas Supreme Court 5-4 split opinion, In re Prudential Ins. Co. of America, 148 S.W.3d 124, 129-35 (Tex. 2004). That case involved a dispute over a complex commercial restaurant space lease, which contained a waiver of the right to trial by jury. When the lessee sued Prudential (the lessor), Prudential moved to strike the lessee’s jury application, which was denied by the trial court.
The lessee made a strong public policy argument against pre-suit jury right waivers, which was addressed by the majority opinion as accurate but inapplicable to the facts at hand:
ICP argues that if contractual jury waivers are permitted, some parties will attempt to take unfair advantage of others, using bargaining position, sophistication, or other leverage to extract waivers from the reluctant or unwitting. We agree, of course, that agreements made in such circumstances cannot be enforced. As we have said in another context, a waiver of constitutional rights must be voluntary, knowing, and intelligent, with full awareness of the legal consequences.
So, dismissing coercion as a basis to avoid the waiver under those facts, the majority of the court held that the trial court’s action was improper. The fact that the waiver was signed knowingly and voluntarily by the sophisticated business lessee – assisted by legal counsel — trumped its right to a trial by jury.
Still, the language quoted above from the Prudential decision sounds pretty promising for Valdez in his dispute with Frank Kent Cadillac, right? Not so fast. The Frank Kent court gave lip service to the above-quoted principle in the Prudential case: “we agree that a jury waiver agreement that is coerced is invalid….” But the court then went on to hold that it was not coercion to give Valdez the ultimatum to either sign the jury waiver or be fired immediately, because the dealership could instead have just fired Valdez for no reason. The court reasoned that its ruling actually helped employees because, if the rule were different, employers like Frank Kent would resort to just firing all employees and then rehiring only those who agreed to the new terms. Thus, by enforcing the waiver, the court felt it was discouraging the mass termination of workers.
Under long-standing Texas law, a contract secured by coercion or duress is voidable. Consistent with the broad right to trial by jury guaranteed by the Texas Constitution, if parties dispute whether coercion or duress was applied, generally they are entitled to a jury determination of that issue. But no longer. After the Frank Kent decision, if the waiver is signed under a threat that does not actually violate the law, the employee is never entitled to have a jury determine if unfair coercion was employed. It was not always this way.
In Mitchell v. C.C. Sanitation Co., Inc., 430 S.W.2d 933, 937 (Tex.App.-Houston [14th Dist.] 1968, writ ref’d n.r.e.), the Houston Court of Appeals closely examined conflicting authorities on the issue of whether coercion could arise outside the context of a threat to do something illegal. The court concluded that the pressure of being fired, placed in the context of the unequal bargaining power of the parties and the absolute dependence of the employee on his job, created a sufficient fact issue for jury determination as to whether coercion or duress was the basis for the employee to enter into the contract. To quote the court:
It is the opinion of the majority of this court that even where the right of an employer to discharge an employee is unquestioned, duress and coercion may be exercised by the employer by threats to discharge the employee, where circumstances such as are here presented appear. We cannot conclude that an employer with the opportunity for oppression on an employee that here appears, may use such power for his own economic interest, and yet conclude that no question of duress or coercion arises.
I confess that later cases have tended to limit coercion and duress to situations in which the threat is to do something the threatening party has no legal right to do. See, e.g., Rabe v. Dillards, Inc., 214 S.W.3d 767 (Tex.App.-Dallas 2007, no pet.). But should that be the case, and is the limitation of coercion or duress in that very narrow manner consistent with the inviolate right to trial by jury protected by the American and Texas Constitutions? I submit equity demands the answer should be a qualified “no” to both questions.
The converse of a contract entered into under undue coercion or duress is one in which the parties have freely, knowingly, and voluntarily entered. It is one thing to hold that a contract for the sale of non-essential goods that contains a waiver of the right to trial by jury is enforceable because the parties were free to go elsewhere. But in the context of an employer-employee relationship the courts should recognize that, at least in some instances, the bargaining power of the employee is so disproportionately low that the extraction of the waiver of the constitutionally-protected right to trial by jury under threat of immediate termination simply should not be given effect by the courts. The Frank Kent case is a prime example.
The employer could not fire Valdez without cause if doing so would result in a disproportionate impact on his age-protected class. So, at least as Valdez saw it, before undertaking that illegal act the employer confronted all employees with an option to either waive their right to trial by jury or be terminated immediately. At age 59, Valdez was unlikely to be able to replace his employment, which is precisely why our country and state have provided age-related employment protection. So, Valdez could either sign a waiver of his constitutionally-protected rights in the event he was later illegally fired, or immediately find himself both unemployed and effectively unemployable. Under these conditions, how could any rational court determine that Valdez’s decision to sign the waiver was a voluntary waiver as a matter of law, negating the need for a jury determination on the issue?
What would happen if Valdez were to be allowed to submit an issue to a jury as to whether his waiver of his right to trial by jury was secured by coercion or duress? I suspect that most often a jury would side with Valdez. But not always. And therein lies the beauty of the jury system.
A jury of twelve citizens with no stake in the litigation would decide, objectively and based on the facts of this case, whether Valdez’s signature on the waiver was the result of a voluntary decision or the product of unfair coercion. Frank Kent Cadillac could make its case to the jury and explain its business reasons for requesting signature of the handbook, as well as the benefits it provided to the employees. Valdez could explain why he signed the agreement without attempting to negotiate or consulting with legal counsel. Ten of the twelve jurors would have to agree with Valdez in order for his claim of coercion to constitute a valid defense to Frank Kent’s claim.
And that is precisely why the Texas Constitution so stringently protects the right to trial by jury. Appellate judges are most often initially appointed by a partisan governor after close screening. Sometimes, they simply seek office and are elected. Either way, at some point appellate judges must be nominated for election by their chosen political party. There is substantial political pressure, sometimes indirect but always quite real, on appellate judges to rule one way or the other in particular classes of civil cases or face a well-funded primary challenge in the upcoming election.
Juries, on the other hand, are screened only for whether they have any existing bias or prejudice with regard to the particular case they will be asked to decide. Jurors will never meet as a group after the conclusion of the case at hand. They will never run for election as jurors, and will never be chastised or punished for whatever decision they may reach.
Instead of the simple majority required of appellate decisions, we also require a super-majority 10-12 decision for a Texas district court jury verdict. Unquestionably, this helps ensure the reliability of results. See Surowiecky, J., The Wisdom of Crowds: Why the Many Are Smarter than the Few and How Collective Wisdom Shapes Business, Economies, Societies and Nations (Anchor Pub. 2005).
In short, I respectfully submit the authors of the Declaration of Independence, the Bill of Rights, and the Texas Constitution demonstrated great foresight and wisdom in making the right to trial by jury of paramount importance. Those valuable rights should not be dismissed so cavalierly as they were by the Texas Supreme Court in Frank Kent.
To come full circle to the Declaration of Independence where this analysis began, it is worthy to quote the author of that epic document, Thomas Jefferson: “I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution.”
TDR
