Jury trials are worth fighting for
History is littered with manmade institutions conceived for the noblest ends dashed on the rocks of human frailty. The Egyptian god-king, Athenian democracy, the Roman Senate, the divine right of kings, pitchers hitting in the National League. But among those institutions that have stood the test of time, we find a shining example—inherited from our English forebears—that has served its purpose nobly: the jury.
When Americans are accused of breaking the law, we look not to a king, an emperor, or a chieftain for justice. We look instead to twelve of our neighbors chosen at random who stand in judgment of the state’s case against us.
At least that’s what we expect. In truth, the institution of the jury has been eroding for decades. Today, dozens of federal agencies bring charges against Americans in their own in-house tribunals. There, our neighbors face myriad fines and punishments without the benefit of a jury, without the fixed rules of evidence and procedure that protect our rights in federal court, and without even the benefit of a neutral judge overseeing the process.
But the tide is beginning to turn. Last year, in SEC v. Jarkesy, the Supreme Court ruled that the SEC cannot prosecute people in its in-house tribunals for securities fraud when seeking monetary penalties. It held that the Seventh Amendment to the Constitution protects the right to a trial by jury especially in cases where the government is seeking civil sanctions.
That decision paved the way for further litigation to hem in the ability of federal agencies to punish people without ever giving them a fair day in a real court. Which is what PLF has set out to do with our initiative to end agency adjudication.
Earlier this week, PLF attorneys argued two cases that are part of that initiative at the Fourth Circuit: Frank Black et al. v. SEC & FINRA and Joe Manis v. USDA.
In the first case, PLF attorneys Adi Dynar and Adam Griffin represent Frank Black, a self-made man from South Carolina who ran a securities broker-dealer firm, Southeast Investments. For years, Frank has been fighting absurd charges, brought by the Financial Industry Regulatory Authority (FINRA, a quasi-private arm of the SEC), that he failed to visit the offices of his remote brokers and didn’t save some non-business-related emails. FINRA itself then prosecuted the case in-house and fined Frank close to a quarter-million dollars and expelled him from the financial industry for life. Frank has filed an administrative appeal to the SEC—another administrative agency. Frank retained PLF to challenge this process and filed a lawsuit in federal court. When PLF helped Frank file his lawsuit, the government lifted the ban, which had been in place for more than four years. But FINRA hasn’t withdrawn the money penalty it imposed on Frank.
In the second case, PLF attorneys Josh Robbins and Allison Daniel represent Joe Manis, a retired North Carolina business owner who shows Tennessee walking horses competitively. The Department of Agriculture accused Joe of allowing one of his horses to be entered into a competition with its legs “sored”—purposely injured to affect its gait. Here, too, Joe was subjected to an in-house, administrative prosecution. Without a fair chance to prove his innocence, Joe faced a steep fine and a ban of at least a year.
In both cases, PLF argued to the Fourth Circuit that the in-house adjudication processes used by the agencies are unconstitutional because, among other things, they deny Frank and Joe their Seventh Amendment right to a jury trial. The judges engaged rigorously with the constitutional claims and gave them serious consideration.
But constitutional challenges to administrative adjudications always face an uphill battle. Courts are often reluctant to weigh in on constitutional questions that could have significant ramifications for administrative structures, which are conventionally viewed as providing efficient and expert resolution of cases that would otherwise clog the dockets of trial courts. The Department of Justice often exploits this judicial reticence by pushing lower courts to devise ways to avoid deciding these cases.
Ultimately, it may be that lower courts aren’t quite convinced the Supreme Court really meant what it said in Jarkesy. Luckily, the Justices have a prime opportunity to reinforce the message.
In August, PLF asked the Supreme Court to take up our case on behalf of Jamie Leach and Leachco—a family-owned, Oklahoma-based producer of childcare products—against the Consumer Product Safety Commission. In 2022, the CPSC sued Leachco, alleging that the company’s infant-lounger product presented a “substantial product hazard” because it supposedly had a “defect” that created a “substantial risk of injury to the public.” That defect? The Commission believes parents might allow infants to sleep in it, despite Leachco’s warnings to the contrary.
Just like Frank Black and Joe Manis, Jamie didn’t have her case decided in a court by a jury of her peers. Rather, the Commission brought its case before an administrative law judge at CPSC headquarters in Bethesda, Maryland.
The Supreme Court will decide in January whether it will take the case. It should. And it should repeat, once again, for the benefit of agencies and lower courts alike, that the government cannot deny Americans their right to a fair trial, in a real court, overseen by a neutral judge, and decided by a jury.
The jury trial is one of the great innovations in human history designed to check government abuse of power. G.K. Chesterton observed in his essay “The Twelve Men,” written after he had served on a jury, that:
Now, it is a terrible business to mark a man out for the vengeance of men. But it is a thing to which a man can grow accustomed, as he can to other terrible things; he can even grow accustomed to the sun. And the horrible thing about all legal officials, even the best, about all judges, magistrates, barristers, detectives, and policemen, is not that they are wicked . . . not that they are stupid . . . it is simply that they have got used to it.
Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of judgment; they only see their own workshop.
That’s why, he said, “Our [civilization] has decided, and very justly decided, that determining the guilt or innocence of men is a thing too important to be trusted to trained men.”
Jarkesy is an important step toward ensuring that all Americans get their day in court when the government accuses them of breaking the law. But there is still work to be done. We will not surrender an institution so critical as the jury without a fight.
