UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

FAUSTINO GONZALEZ-OYARZUN,

Plaintiff,

v.

CARIBBEAN CITY BUILDINGS, INC.,
et. al.

Defendants.






CIVIL NO. 14-1101 (GAG)




COMMONWEALTH OF PUERTO RICOS BRIEF
RE: NON-INCORPORATION OF THE SEVENTH AMENDMENTS
RIGHT TO CIVIL TRIAL BY JURY

TO THE HONORABLE COURT:

Comes now, the Commonwealth of Puerto Rico, without submitting to the Courts
jurisdiction and for the limited purpose of complying with the Courts order at Docket 44,
through their undersigned attorneys, very respectfully submit the instant brief and requests and
prays as follows:
I. INTRODUCTION
On May 1, 2014 this Honorable Court issued an Order requiring the parties to file
simultaneous briefs and serve the Commonwealth of Puerto Rico, as well as the Office of Courts
Administration as parties with interest (Docket 44). In such Order, the Court directed the
Commonwealth of Puerto Rico to address the issue of whether the Seventh Amendment of the
United States Constitution has been incorporated against the states and territories. For the
reasons that follow, the Commonwealth of Puerto Rico submits to the Honorable Court that the
Seventh Amendment has not been incorporated against the states through the Fourteenth
Amendment.
2
Through the process of selective incorporation, the United States Supreme Court has held
that portions of the Bill of Rights are enforceable against the states through the Fourteenth
Amendment. In other words, the Court began to hold that the Due Process Clause fully
incorporates particular rights contained in the first eight Amendments. McDonald v. City of
Chicago, Ill., 561 U.S. 742, 130 S. Ct. 3020, 3034 (2010). Prior to the development of the
doctrine of selective incorporation, the Bill of Rights was held only applicable to the federal
government. Thus, by selectively incorporating rights through the Fourteenth Amendment, some
of the fundamental rights recognized in the first eight Amendments of the U.S. Constitution
originally enforceable against actions of the federal government are likewise enforceable against
actions of state governments. This is so, not because those rights are enumerated in the first
eight Amendments, but because they are of such a nature that they are included in the conception
of due process of law. Palko v. State of Connecticut, 302 U.S. 319, 327 (1937) overruled on
other grounds by Benton v. Maryland, 395 U.S. 784 (1969). Throughout the years, the U.S.
Supreme Court has incorporated only those rights deemed fundamental principles of liberty and
justice, which lie at the base of our Nations civil and political institutions. McDonald, 130 S.Ct.
at 3022; Duncan v. State of La., 391 U.S. 145, 148, (1968). Such fundamental principle of
liberty and justice has been the threshold used by the Supreme Court in deeming rights as
fundamental, such as when it recently incorporated the right to bear arms of the Second
Amendment in McDonald.
In addition to the right to keep and bear arms [which has now been incorporated by
McDonald] and the Sixth Amendment right to a unanimous jury verdict, the only rights not fully
incorporated are (1) the Third Amendments protection against quartering of soldiers; (2) the
Fifth Amendments grand jury indictment requirement; (3) the Seventh Amendment right to a
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jury trial in civil cases; and (4) the Eighth Amendments prohibition of excessive fines.
McDonald, 130 S. Ct. at 3035 n.13, (internal quotations omitted) (emphasis provided).
One of these incorporated rights, among others, is the right to trial by jury in criminal
cases, which was incorporated against the states in Duncan. As expressed by the U.S. Supreme
Court, the reasoning behind such incorporation is to safeguard against government oppression.
The purpose of the jury trial [in criminal cases], as we noted in Duncan, is to prevent oppression
by the Government. Providing an accused with the right to be tried by a jury of his peers gave
him an inestimable safeguard against the corrupt or overzealous prosecutor and against the
compliant, biased, or eccentric judge. Williams v. Florida, 399 U.S. 78, 100 (1970). This logic
is contrasted with the dynamics in civil proceedings, in which, unlike in criminal ones, the
government is not prosecuting a defendant.
II. THE SEVENTH AMENDMENT OF THE UNITED STATES CONSTITUTION
HAS NOT BEEN INCORPORATED AGAINST THE STATES

With regard to the Seventh Amendment, it is imperative to distinguish the first portion of
the Amendment from the second. The second portion of the Seventh Amendment (no fact tried
by jury, shall be otherwise re-examined in any Court of the United States, than according to the
rules of the common law) has been held to apply to the states. However, it is well-established
that the first clause of the Amendment (the right of trial by jury shall be preserved) does not
apply to the states. Melancon v. McKeithen, 345 F. Supp. 1025, 1035-1036 (D.C.La. 1972)
(affirmed by Hill v. McKeithen, 409 U.S. 943 (1972)).
On multiple instances in American history, the United States Supreme Court has stated
that the right to jury trial in civil state court cases is not guaranteed by the Seventh or Fourteenth
Amendments. See Livingston v. Moore, 7 Pet. 469, 552 (1833); Walker v. Sauvinet, 92 U.S. 90
(1876); Pearson v. Yewdall, 95 U.S. 294, 296 (1877) (We have held over and over again that
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art. 7 of the amendments to the Constitution of the United States relating to trials by jury applies
only to the courts of the United States); Chicago, R.I. & P.R.R. Co. v. Cole, 251 U.S. 54 (1919)
(noting that a state may do away with the jury altogether).
As explained in Palko, the right to trial by jury is not the very essence of a scheme of
ordered liberty. In its ruling, the U.S. Supreme Court concluded that [t]o abolish [the right to
trial by jury] is not to violate a principle of justice so rooted in traditions and conscience of our
people as to be ranked as fundamental. Palko, 302 U.S. at 325 (internal citations omitted).
Thus, to argue that the Seventh Amendment has been incorporated against the states simply
belies the facts and runs against well-established Supreme Court precedent.
In light of Supreme Court rulings, the Commonwealth of Puerto Rico is not required to
afford civil jury trials to its citizens under the Seventh or Fourteenth Amendments. Such is the
case, regardless of whether Puerto Rico is considered an incorporated or unincorporated territory.
Henceforth, the right to a civil jury trial in state court is not dependent on Puerto Ricos political
status. Rather, it is dependent on whether the Seventh Amendment is only applicable to cases
filed in federal court or if the Amendment has been incorporated against the states. In Puerto
Rico, civil jury trials are not a right unless Puerto Rico itself decides to extend such right to its
citizens. Although the right to civil jury trials is only applicable in federal court, all states have
extended such right to its citizens in state court proceedings. As a matter of fact, the vast
majority of the states have conferred the right by means of the state constitution. For instance,
California
1
and Florida
2
confer the right to civil jury trials in their respective state constitutions.

1
Trial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may
render a verdict. Cal. Const. art. I, 16.
2
The right to trial of jury shall be secure to all and remain inviolate. Fla. Const. art. I 22.
5
Only Colorado
3
and Louisiana
4
provide this right by virtue of law or regulations instead of by
constitutional mandate. Even though all fifty states have individually granted the right to civil
jury trials to their citizenry, such right could be taken away. Pursuant to U.S. Supreme Court
precedent, any state could conceivably deny the right to a jury trial in civil court cases. Wagner
Electric Mfg. Co v. Lyndon, 262 U.S. 226, 232 (1993) (the deprivation of a right of trial by jury
in a state court does not deny the parties due process of law under the federal Constitution.). By
the same token, Puerto Rico could conceivably grant such right to its citizens by virtue of statute,
regulation or an amendment to its Constitution. For the time being, however, by not bestowing
upon its citizens the right to trial by jury in civil cases, the Commonwealth of Puerto Rico is not
attempting to differentiate itself from the states in terms of the rights afforded to its people.
Rather, like any other state or territory, it is essentially partaking in the American tradition of
federalism and states rights. Thus, in not extending civil jury trials to its citizenry, Puerto Rico
is exercising a right bestowed upon the states: the right to choose the remedy best adapted, in the
legislative judgment, to protect the interests concerned. Hardware Dealers Mutual Fire Ins. Co.
of Wisconsin v. Glidden Co. et. al., 284 U.S. 151, 158 (1931). The Fourteenth Amendment
neither implies that all trials must be by jury, nor guarantees any particular form of method of
state procedureIn the exercise of that power and to satisfy a public need, a state may choose
the remedy best adapted, in the legislative judgment, to protect the interests concerned, provided
its choice is not unreasonable or arbitrary, and the procedure it adopts satisfies the constitutional
requirements of reasonable notice and opportunity to be heard. Hardware Dealers Mut. Fire
Ins. Co. of Wis., 284 U.S. at 158 (1931) (internal quotations omitted).

3
Upon demand, in actions for the recovery of specific real or personal property, with or without damages or for
money claimed as due on contract, or as damages for breach of contract, or for injuries to person or property, an
issue of fact must be tried by a jury. However, after demand a jury trial may be waived by stipulation of the
parties. Colorado Rules of Civil Procedure 38(a); Kaitz v. District Court, 650 P.2d 553 (Colo. 1982).
4
the right of trial by jury is recognized. Louisiana Code of Procedure, art. 1734.
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III. CONCLUSION
In essence, the right to trial by jury in civil cases has not been recognized by the U.S.
Supreme Court as one of the fundamental principles of liberty and justice which lie at the
foundation of our countrys civil and political institutions. Thus, it has been left up to the states
to determine whether or not to provide their citizens with such non-fundamental right. In light of
the fact that the U.S. Supreme Court has not incorporated the Seventh Amendments right to
civil jury trial, the Commonwealth of Puerto Rico, as a matter of public policy, has so far
decided not to grant such right.
WHEREFORE, the Commonwealth of Puerto Rico respectfully requests that this
Honorable Court take notice of its stance regarding the non-incorporation of the Seventh
Amendments right to trial by jury in civil cases.
CERTIFICATE OF SERVICE
I hereby certify that on this same date, I have electronically filed the foregoing
Commonwealth of Puerto Ricos Brief, Re: Non-Incorporation of the Seventh Amendments
Right to Trial by Jury with the Clerk of the Court using CM/ECF system, which will send
notification of such filing to all attorneys of record.
RESPECTFULLY SUBMITED.
In San Juan, Puerto Rico, this 24
th
day of June, 2014.
CSAR MIRANDA RODRIGUEZ
Secretary of Justice

MARTA ELISA GONZLEZ
Deputy Secretary of Justice in Charge of
Litigation

JANITZA M. GARCA MARRERO
USDC-PR No. 222603
Director
s/JOSEPH G. FELDSTEIN-DEL VALLE
Joseph G. Feldstein-Del Valle
USDC- PR 230808
jfeldstein@justicia.pr.gov

s/NGEL J. VALENCIA-GATELL
ngel J. Valencia-Gatell
USDC-PR 300009
avalencia@justicia.pr.gov
valencia.gatell@gmail.com
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Federal Litigation Division
Department of Justice

Department of Justice
Federal Litigation Division
P.O. Box 9020192
San Juan, PR 00902-0192
Office (787) 721-2900 ext. 2606
Fax (787) 723-9188