Appellant (former investor in chicken barns) wants a civil jury trial in an Article III court.
This is a case in which an Article I adjunct "found" that the Federal Arbitration Act (FAA) precludes the individual citizen's and consumer's constitutional right to access Article III courts and right to a civil jury trial - concluding that the trustee could solicit or accept $5,000 from former potential creditors in behalf of the former bankruptcy estate in exchange for the Appellant's access and civil jury rights against those former potential creditors. The argument is that Congress did not have Constitutional authority to legislate the transfer of Article III powers to non-Article III courts (including adjunct courts and FAA courts) through enactment of the FAA, nor to empower FAA judges to hold non-jury civil trials with or without the parties' consent. Appellant filed a Fed. R. App. Proc. Rule 44 "Constitutional Challenge" arguing that the FAA is unconstitutional. This Court certified the Challenge and copied the Attorney General's office. The Challenge states:
The Federal Arbitration Act (FAA) (Title 9 of the U.S. Code) violates the 7th Amendment right to a jury trial in civil cases where the value in controversy exceeds $20. Amendment VII preserves the right to a civil jury as an inseparable and inalienable right, and does not authorize waiver. The retention of the right to jury in civil cases was so important to our forefathers that the jury right was specifically enumerated and not left to speculation as per Amendment IX. A jury waiver in civil cases abridges the peoples' access to the public courts and right of redress under Amendment I and abridges rights to due process under Amendment XIV. (See Appellant's Brief pgs. xix, xx, 5-7, 13-14, 17-20, 26-31, 43).
VII. The Federal Arbitration Act (FAA) Violates The Constitution A. Did The Legislature Have Constitutional Authority To Legislate The Transfer Of Article III Powers To Non-Article III Courts Through Enactment Of The Federal Arbitration Act?
B. Did The Legislature Have Constitutional Authority To Enact The Federal Arbitration Act Empowering Non-Article III Judges (Adjunct and FAA) To Hold Non-Jury Civil Trials With Or Without The Parties' Consent?
The applicable statute - the Federal Arbitration Act (FAA) - may be read as transferring Article III powers to non-Article III courts and empowering FAA judges (and adjuncts handling cases involving an FAA contract) to deny Article III access and the 7th Amendment jury right to citizens. A citizen bound to a document with an FAA clause can not obtain a jury trial before an FAA judge (or adjunct) nor seek access to obtain a jury trial before an Article III judge. The FAA forecloses all right to seek a jury trial or obtain access to an Article III court. Congress cannot constitutionally empower non-Article III judges to hold non-jury civil trials with or without the parties' consent. The right to a civil jury trial is inviolate. "In suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved." U.S. CONST. amend. VII.
Corporate Wealth Created The FAA And Controls Court Procedure
"Justice is the one thing the People should always find." (Appellant) The American colonists suffered greatly under judges controlled by King George III. They listed this grievance in the Declaration of Independence: "He has made Judges dependent on his Will alone, for the Tenure of their Offices, and the Amount and Payment of their Salaries." Declaration of Independence para. 11 (U.S. 1776). The Framers made judicial independence a cornerstone of our judicial system. The Federalist Papers stressed the need for lifetime tenure and salary protection for judges. "In the general course of human nature, a power over a man's subsistence amounts to a power over his will." The Federalist No. 79, at 472 (Alexander Hamilton). The Framers guarded against this danger in Article III of the Constitution:
"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office." U.S. Const. art. III, § 1.
In other words, only judges who enjoy life tenure and protection against salary cuts can exercise "[t]he judicial Power of the United States." Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 59 (1982) (Brennan, J., plurality opinion). These guarantees insure independence from legislative and executive influence, promote public confidence in judicial integrity, attract well qualified jurists to the bench, and insulate judges from pressure by other judges. Id. at 57-60 & n. 10; The Federalist No. 78 (Alexander Hamilton). Courts and commentators focus on the importance of insulating judges from Congress and the Executive Branch. Despite the absolute language of Article III, the Supreme Court has carved out three (and only three) exceptions for so-called Article I legislative courts:
· First, Congress may create legislative courts for U.S. territories and the District of Columbia, because Articles I and IV of the Constitution give Congress "plenary power over these geographic enclaves". Marathon, 458 U.S. at 64-65 (Brennan, J., plurality opinion). FAA courts are nationwide.
· Second, courts-martial need not conform to Article III's requirements, because Congress and the Commander-in-Chief have extraordinary leeway in military affairs. Marathon, 458 U.S. at 66 (Brennan, J., plurality opinion). FAA courts are non-military.
· Third, Article I courts may hear cases involving "public rights" - which are rights against the government or closely intertwined with a regulatory scheme. Thomas v. Union Carbide Agric. Prods. , 473 U.S. 568, 593-94 (1985); Marathon, 458 U.S. at 67-70 (Brennan, J., plurality opinion). The rationale underlying the public rights exception is that because "Congress [was] free to commit such matters completely to nonjudicial executive determination . there can be no constitutional objection to Congress' employing the less drastic expedient of committing their determination to a legislative court or an administrative agency." Marathon, 458 U.S. at 68 (Brennan, J., plurality opinion) (citing Crowell v. Benson, 285 U.S. 22, 50 (1932)).
An FAA Judge Is Neither An Employee Nor An Adjunct
Of An Article III Court
Regardless of whether a case involves territories, the military, or public rights, an Article III court may employ non-Article III adjuncts. FAA judges are not employed by Article III courts. The only limitation is that the Article III court must retain "the essential attributes of the judicial power." Marathon, 458 U.S. at 77-81 (Brennan, J., plurality opinion). In Marathon, the Supreme Court struck down the scheme of bankruptcy courts set up by the Bankruptcy Act of 1978 - and should likewise strike down the scheme of the FAA courts set up by the Federal Arbitration Act. Bankruptcy courts had the power to preside over jury trials - but at least the individual retained the right to a jury trial. The current bankruptcy jury choice is for the individual to have a jury trial held in the Article I (bankruptcy court), or to have a jury trial held in the Article III (district court). All parties must choose which court will hold the jury trial, and choose at the time the dispute arises. The FAA abridges the jury right and gives no such choice. The corporations write an FAA clause into their labor and consumer contracts years before a dispute arises. A bankrupt bound to an FAA contract at (any time prior to bankruptcy) comes into the adjunct court stripped bare of their civil and constitutional rights - and is denied due process and jury trial. In this instant case on appeal, the debtors moved in the district court to take action against the party involved in the FAA contract, and that attempt to access an Article III court was also denied. Appellant seeks reversal of that motion on appeal to this Court. In Marathon, the plurality concluded:
· District courts had not retained "the essential attributes of the judicial power." Id. at 87. Under the FAA, Article III courts retain no power;
· Bankruptcy courts were not public rights courts because they handled non-core proceedings between private parties. Id. at 71. Likewise, the FAA courts are not public rights courts and handle non-core proceedings between private parties;
· Bankruptcy courts were not adjuncts because of the deferential standard of review. Id. at 91 (Rehnquist, J., concurring in the judgment). The standard of review was "clearly erroneous" instead of de novo - giving a deference to the non-Article III ruling. In a de novo review, the Article III court uses the Article I court's record but reviews the evidence and law without any deference to the trial court's rulings. Black's Law Dictionary, Abridged 7th Edition, 3rd reprint, 2004. The FAA court is not adjunct to an Article III court, and the ruling is binding. If an appeal is attempted from an FAA judge's ruling, the FAA judgment is given almost absolute authority;
· The exercise of jurisdiction did not involve public rights, because English common-law courts heard such claims in the eighteenth century. "No method of adjudication is hinted, other than the traditional common-law mode of judge and jury." Id. at 90. The FAA court is not a public rights court in that "public rights" are rights against the government or closely intertwined with a regulatory scheme.
In the wake of Marathon, Congress passed the Bankruptcy Amendments and Federal Judgeship Act of 1984 (BAFJA). Pub. L. No. 98-353, 98 Stat. 333 (codified as amended in scattered sections of U.S.C. titles 5, 11, and 28). BAFJA responded to Article III concerns by restricting bankruptcy courts to core proceedings, and providing an option to hold the jury in the adjunct court, or to hold the jury in the Article III Court. 28 U.S.C. § 157(b); Marathon, 458 U.S. at 71 (Brennan, J., plurality opinion). Congress also styled bankruptcy courts as adjuncts, labeling them "a unit of the district court." 28 U.S.C. § 151. FAA courts are not adjunct and their judges are not employed or in any way supervised by the Article III courts. After BAFJA, in a suit that would have been tried at common law in England in 1789, a litigant has both a Seventh Amendment right to a jury and an Article III right to an Article III court. The FAA forecloses both rights of a litigant, and the FAA judges may be bent to the will of those who hold power over the people. "In the general course of human nature, a power over a man's subsistence amounts to a power over his will." The Federalist No. 79, at 472 (Alexander Hamilton).
Where A Case Gives Rise To A Seventh Amendment Right To A Jury Trial, Congress May Not Give Jurisdiction To A Non-Article III Court.
This conclusion jibes with the reasons underlying the public rights exception. Marathon explained the rationale: because "Congress [is] free to commit [public rights cases] completely to nonjudicial executive determination, [it can] employ the less drastic expedient of committing their determination to a legislative court or an administrative agency." 458 U.S. at 68 (Brennan, J., plurality opinion). But where the Seventh Amendment applies, Congress is not free to commit the case "completely to nonjudicial executive determination." Because the litigant has a right to a judicial proceeding including a jury trial, the public rights doctrine cannot apply.The fact that a given law or procedure such as the FAA is efficient, convenient, and useful in facilitating Article III court functions, standing alone, will not save it if it is contrary to the Constitution. INS v. Chadha, 462 U.S. 919, 944 (1983). The Framers separated power to prevent its abuse. They chose to sacrifice a measure of efficiency and expediency to insure that judges would be independent of the President, Congress, other judges, money, and modern corporate America. See The Federalist No. 79, at 474 (Alexander Hamilton) (rejecting provision for removal of mentally disabled judges because that power might be abused). Such a law would have made removal of judges easier, but at what sacrifice? In this case, the Court must ask, the FAA might ease the burden on Article III courts by denying access and Seventh Amendment rights to the people, but at what sacrifice? "Justice is the one thing the People should always find." (Appellant