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Major Minnesota Decisions--Highlighting Minneapolis & St. L. Ry. Co. v. Bombolis

This year marks the 225th anniversary of the ratification of the Bill of Rights, which occurred on December 15, 1791, when the requisite 10 of the 14 states, (the original 13 plus Vermont, which was added after the Revolution), approved the first ten amendments to the Constitution, which had been approved by Congress and submitted to them three months earlier. Another milestone occurs this year, the centenary of a significant decision of the U.S. Supreme Court of a case from Minnesota that high-lights some key considerations under the Bill of Rights. Although discredited over the years, the ruling remains a bedrock of the principle of federalism underlying the nation’s Constitutional form of government.

The case celebrating its 100th anniversary is Minneapolis & St. L. Ry. Co. v. Bombolis, 241 U.S. 211 (1916). Decided near the close of the High Court’s 1915-16 Term, the ruling affirmed a decision 17 months earlier by the Minnesota Supreme Court, 128 Minn. 112, 150 N.W.2d 385 (1914). Written by Chief Justice Edward White, the Bombolis ruling held that the Seventh cases, which embraces common law principles, does not apply to the  states. That proposition might be, and actually is, seriously questioned if it were made today. But, for its time, it was an unexceptional decision that seemed to be a no-brainer for the High Court, which rather cavalierly deemed the issue to be “completely and conclusively … and so thoroughly settled” as to barely cause a ripple in the sea of jurisprudence.  Since then, the tide has turned, accompanied by a sea change in constitutional jurisprudence, and Bombolis may have been the turning point in that progression. 

But before seeing how the Bombolis doctrine came about – and what happened to it later – a look at the background case is war-ranted. The underlying lawsuit was a wrongful death action brought in Hennepin County under the recently enacted Federal Employers’ Liability Act (FELA), a form of workers’ compensation for injured workers in the railroad industry and other interstate transportation modes.

Although a Federal statute, FELA authorizes concurrent jurisdiction, either Federal or state courts, similar to a small number of other federal statutes, such as the Family Medical & Leave Act (FMLA), for example.  FELA also allows jury trials, contrary to conventional workers’ compensation laws in Minnesota and most other states, which have specialized administrative or judicial bodies that handle these cases for injured workers without juries. Those laws were the product of the Progressive era enact-ed during the early part of the 20th century, as was FELA. 

The Bombolis case was brought by the estate of a deceased railroad worker who was struck and killed by a train while he was repairing a truck in the Kenwood rail yards on the outskirts of downtown Minneapolis. The lawsuit was tried to a 12-person jury. Under Minnesota state law enacted in 1913, a unanimous jury verdict was required for a jury decision in civil cases, although the unanimity requirement was reduced to 5/6ths after 12 hours of deliberations without reaching a result. This is similar to the current law, Minn. Stat. § 546.17, which allows departure from unanimity after six hours of deliberation, as authorized by amendment to Article 1, § 4 of the State Constitution. The statute was amended in 1986 to allow that deviation from unanimously after six hours of deliberation and also provides for other fractional jury decisions. Unanimity, however, is mandated in criminal cases, pursuant to the state Constitution, statute, and Rules of Criminal Procedure. 

After impasse upon the end of the 12 hour period, the Bombolis jury returned a 5-6 verdict for the princely sum of $3,750 in favor of the estate of the injured claimant. The railroad appealed to the Minnesota Supreme Court, long before the existence of the intermediate court of appeals. It argued that the 5/6 verdict wasallowing less than a unanimous jury verdict and was repugnant to the common law requirement of unanimity, which was embedded in the Seventh Amendment. Fidelity to that mandate, the railroad argued, dictates application of the principle of unanimity to a right created by Federal law and requires reversal and a new trial. 

But its argument was rejected by the state Supreme Court, which affirmed the verdict. Most of its analysis focused on pleading, proof, and jurisdictional issues, and reached the jury’s finding in the last passage of its ruling, citing an earlier Minnesota case, that “the five-six jury law” applies in FELA cases in state court. 128 Minn. at 118, 150 N.W.2d at 387. 

The case reached the High Court for its 1915-16 Term, the 125th anniversary of the Bill of Rights. The justices in the nation’s Capitol, too, affirmed unanimously with a pungent explanation that it had by Chief Justice White that the tribunal had “conclusively determined… that the first ten amendments, including of course the seventh, are not concerned with state action and only with Federal action.” 241 U.S. at 217. The Court had little problem in reaching its decision, stating that its conclusion was “now not open in the slightest to question” and its determination “may not be doubted." Id. 217-218.

In so doing, the Court rejected the nascent concept of incorporation, the doctrine under which federal constitutional rights are deemed applicable to the states, through the vehicle of the Due Process clause of the post Civil War 14th Amendment. Applying the Seventh Amendment to the states, Chief Justice White warned, would “create a confusion,” causing the Seventh Amendment to be “obscured” and, even more ominously, would “distort and destroy the historical intent of the limited scope of the Bill of Rights, only to federal court proceedings. Id. 220. The federal – state dichotomy, the Court instructed, was an “essential principle upon which our dual constitutional system of government rests.”  Id., 221. 

The rejection of the incorporation theory by the Bombolis Court was not surprising, or even unprecedented. Nearly a century earlier, in the formative years of constitutional jurisprudence, the High Court rejected the incorporation claim in a case seeking to apply the “takings” clause of the Fifth Amendment to the state to a local municipality. Baron v. Baltimore, 32 U.S. (Peters 7) 243 (1833). After the Civil War, the High Court again refused to apply the incorporation doctrine. In a Seventh amendment jury requirement to states in a Seventh Amendment case, no less, in Pearson v. Yewdall, 95 U.S. 294 (1877). 

While not unusual for its time, there were a few features of the Bombolis litigation that were notable. The case was one of six consolidated cases, coming from five states, although the Minnesota case was given marquee treatment. The case was argued over a 2-day span before the High Court, in the spring of the year, and a decision was rather rapidly forthcoming within barely a month. 

But the rejection of the incorporation theory by the Bombolis Court did not last long. Within a decade, in Gitlow v. New York, 268 U.S. 652 (1925), the High Court applied exception in a post-World War I objector’s freedom of speech case. Then, in another case from Minnesota, Near v. Minnesota, 283 U.S. 697 (1931) any lingering uncertainty was dispelled. That classic “prior restraint” case proscribing censorship of a “scandalous” Minneapolis muckraking newspaper, imbued heavily with racist and anti-Semitic themes, and other outrageous commentary, was ably chronicled by Steven Aggergaard in the Society’s most recent newsletter, “Major Minnesota Decisions – Highlighting Near v. Minnesota,” Summer 2016, pp. 3-4. Departing from the reasoning of the Bombolis case, the court in Near reasoned that it is “no longer open to doubt that the freedom of expression provisions of the First Amendment applies to the states.  283 U.S. at 707. 

Unlike the Bombolis ruling rejecting “incorporation,” Near’s acceptance of it was far from unanimous. The Near ruling was a 5-4 decision, with Pierce Butler the first High Court justice from Minnesota, one of the quartet of dissenters. 

Subsequent rulings have extended the incorporation principle to most, but not all of the Bill of Rights. About the only ones that are outside are not subject incorporation include the Sixth Amendment requirement of grand juries in criminal cases, Hurta-do v. California, 110 U.S. 516 (1984); the presence of jurors in criminal cases in the same locality as where the offense was com-mitted in the same amendment, E.g. Caudell v. Scott, 857 F.2d 344 (6th Cir.  1988); and the “excessive” fines clause of the Eighth Amendment, McDonnell v. City of Chicago, 561 U.S. 742 (2010).   

However, these provisions generally are covered by state law, either constitution or statutes, or otherwise. For instance, in Min-nesota, Article I, § 7 of the State Constitution requires grand jury proceedings in all criminal cases, although it is often dispensed with, through stipulation by the parties, and generally limited to first degree murder and other homicide cases.  See also Rule 18, Minnesota Rules of Criminal Procedure. The provision is likewise in the state constitution, Article I, § 6 addresses the locality of jurors in criminal cases, while Article I, § 5, prohibits excessive fines.   

Even the Seventh Amendment requirement resistance to incorporation of Bombolis is on shaky grounds. A federal district court in Puerto Rico two years ago rejected the Bombolis reasoning in holding the federal common law jury trial requirements apply in non-federal proceedings. Gonzales-Oyarzum v. Caribbean City Builders, Inc. 2014 WL 285027 (D.P.R. 2014 (unpublished). Decisions like this have led commentators to question “whether the Bombolis decision has any continuing authoritativeness beyond its particular facts.” Wright & Kane’s Law of Federal Courts, 7th Ed. (2011), p. 292.   

An inroad into the Bombolis doctrine requires that states follow federal law in a few of the cases, such as submitting the invalidity of a release due to fraud to a jury, even if state, pursuant to the dictative Seventh Amendment, even if state law does not allow that issue to be resolved by a jury.  Nice v. Akron C&Y Ry. Co., 342 U.S. 359 (1952).  In contrast, when state law issues are heard in federal courts, as in diversity of citizenship and claims founded on supplemental jurisdiction, Seventh Amendment jury requirements apply even if the underlying state law does not permit juries for those claims. Kampa v. White Consolidated Industries, Inc., 115 F.3d 585 (8th Cir. 1997) (Minnesota Department of Human Rights Act); Gipsan v. KAS Snacktime Co., 83 F.3d 225, 230 (8th Cir. 1996); Pickens v. Soo Line Ry. Co., 264 F.3d 773, 779 (8th Cir. 2001). 

But it is a long way from the Caribbean to the Capital. Given the High Court’s affection for federalism, particularly pronounced over the past three decades, coupled with the power of precedent and stare decisis, it is unlikely, but not assured, that Bombolis will survive and state courts will be immune from Fourth Amendment jury requirements.   

But the continued vitality of Bombolis on its centenary and beyond does not impinge upon jury trial requirements in state court proceedings. State constitution requirements like Article 1, § 4, of the state Constitution apply, along with statutory jury rights, such as the amendment in 2014 allowing jury trials and actions under the Human Rights Act in Minnesota, Minn. Stat. § 363.A.33. Even without explicit constitutional or statutory grounds, jury rights can be established by judicial interpretation of silent statutes. E.g., Abraham v. County of Hennepin, 639 N.W.2d 342 (Minn. 2002) (jury trials allowed under whistleblow-er law; Schmitz v. U.S. Steel Corp., 852 N.W.2d 660 (Minn. 2004) (jury trials permitted for workers compensation retaliation claims). Parties can also opt for advisory juries under Rule 39.02 of the Minnesota Rules of Civil Procedure.

This year’s double anniversary of the 225th birthday of the Bill of Rights and the centenary of one of its offspring, the Bombolis case from Minnesota, reflects the vibrancy of the U.S. Constitution and the role of Minnesota jurisprudence in its development over the years.

Originally published in a publication by the Minnesota Supreme Court Historical Society.