State ex rel. Diehl v. O'Malley Breaks Down the Wall: The Right to a Jury Trial in State Court Under the Missouri Human Rights Act

by Erin C. Hansen¹

Introduction

In January 2003, the Supreme Court of Missouri recognized the right to a trial by jury under the Missouri Human Rights Act ("MHRA") for the first time since prior to amendment of the act in 1965. This landmark decision, State ex rel. Diehl v. O'Malley,² may signify the beginning of a new era for employment lawyers in the state of Missouri. While the outcome of this decision is far from certain, many attorneys are already dusting off their state rules of procedure and gearing up for a dramatic change in the way that employment discrimination cases are handled in the state of Missouri. Likewise, state court judges are readying themselves for the onslaught of MHRA cases likely to find their way onto the state court docket in the near future.

Part I of this article will attempt to address the many aspects of the Diehl decision. Part II will lay out the general background of the MHRA, including the history of the act, the summary of the current statutory scheme, and the basic principles regarding the constitutional right to a jury trial under the Missouri Constitution. Part III will discuss previous efforts to win the right to a trial by jury under the MHRA, both by employment attorneys and by legislators. Part IV will then focus in detail on the Diehl decision, Supreme Court Judge Michael Wolff's holding and his analysis. Part V will concentrate on the practical effects of Diehl, including the likely impact the decision will have on the state court docket and the interplay between Diehl and the Equitable Cleanup Doctrine. Part VI will look to comparable employment discrimination statutes in Kansas and Iowa, and how courts in those states have addressed the right to a jury trial. Finally, Part VII will conclude with some closing remarks about the Diehl decision and its importance to employment attorneys and aggrieved parties in the state of Missouri.

II. Template of the Missouri Human Rights Act

The MHRA is the state equivalent to federal discrimination statutes. It offers an employee or prospective employee the ability to lodge a complaint with the Missouri Human Rights Commission if the person has suffered from discrimination on the job, been unjustly terminated, or has been denied employment or a promotion in violation of his civil rights.³ Under the MHRA, an aggrieved party may collect monetary compensation stemming from the damages that he has suffered as a result of the discrimination.⁴ The commission may also grant equitable relief to an aggrieved party under the MHRA, including reinstatement, front pay, and a temporary or permanent injunction.⁵

A. The Importance of the Missouri Human Rights Act

The MHRA is by no means an aggrieved party's only cause of action when he has suffered from discrimination at the hands of a Missouri employer. On the contrary, many parties who file a complaint under the MHRA also file a complaint pursuant to a comparable federal civil rights statute. This is done for a variety of reasons, not the least of which is that by including a federal question in their pleadings, parties can get their case removed to federal court where a jury can hear the dispute, including the causes of action arising under the MHRA.⁶ This begs the question: If a party is entitled to relief for employment discrimination under a federal statute (and desires to have their case heard in federal court after Diehl), why include a claim under the MHRA in the pleadings? The simple answer to this question can be found by taking a brief look at the limitations of the federal anti-discrimination statutes.

Among the most commonly invoked federal anti-discrimination statutes are Title VII of the Civil Rights Act of 1964 ("Title VII"),⁷ the Americans with Disabilities Act of 1990 ("ADA")⁸ and the Age Discrimination in Employment Act of 1967 ("ADEA").⁹ Since the passage of the Civil Rights Act of 1991,¹⁰ any party to an action under Title VII or the ADA may demand a trial by jury if either "compensatory or punitive damages" are requested.¹¹ However, each of these statutes limits the damages that an aggrieved party may receive.¹² For instance, a plaintiff may bring a claim under Title VII or the ADA for discrimination based upon disability or race, but recovery is based upon the number of employees working for the employer.¹³ Further, under both Title VII and the ADA, the term "employer" only refers to an entity that employs 15 or more people, rendering these statutes completely inapplicable when an employee is discriminated against in a "mom and pop"-type working environment.¹⁴

The ADEA also allows for the right to a jury trial,¹⁵ yet only employers with at least 20 employees fall within the language of the act.¹⁶ While the ADEA allows for more flexibility in awarding monetary damages than Title VII or the ADA, most relief under the ADEA is in the form of unpaid wages and equitable remedies.¹⁷ Thus, including a MHRA claim in a complaint for relief under any of these federal statutes is invaluable to a plaintiff pursuing a claim in federal court. Doing so allows an aggrieved party to collect a potentially larger damage award while pursuing both state and federal causes of action.

B. History of the Missouri Human Rights Act

The MHRA was passed in 1961 as a legislative effort to "deal[] with discriminatory practices in matters of employment."¹⁸ One of the primary achievements of the MHRA was to create the Missouri Commission on Human Rights.¹⁹ The commission's primary responsibilities "to investigate, initiate and pass upon complaints alleging discrimination" and to "make appropriate orders" with regard to those complaints were originally laid out in §§ 296.030 and 296.040, respectively.²⁰ As a quasi-judicial body, the commission was authorized to listen to complaints filed before it and to fashion appropriate remedies for aggrieved parties.²¹ However, the commission was not an arena of last resort, as the legislature made clear by stating that all commission decisions were subject to de novo review in circuit court.²² Further, "upon written request" of "any party to the proceeding," the issues could be tried before a jury in the circuit court proceeding.²³ "At the conclusion of the trial in the circuit court," the judge was empowered to "affirm or reverse . . . or . . . modify, the decision and order of the commission."²⁴

Although the original version of the MHRA specifically stated that "any party to the proceeding" could request a jury trial,²⁵ the Missouri General Assembly deleted this language from the statute when it amended § 296.050 in 1965. Instead, the revised statute mandated that judicial review should be conducted without the assistance of a jury.²⁶

The MHRA underwent further changes in 1986, when the legislature promulgated Chapter 213 to supplant Chapter 296.²⁷ Although roughly equivalent in language and procedures to Chapter 296, Chapter 213 does not explicitly address whether an aggrieved party has the right to a jury trial upon review of the commission's disposition of the case in circuit court. Rather, § 213.085 simply states that judicial review should be conducted in accordance with Chapter 536 of the Revised Statutes of Missouri.²⁸ Chapter 213 does add an additional course of action for aggrieved parties, however, by giving an aggrieved party the "right to bring a civil action" if the commission has not reached a decision in the matter within 180 days of the commencement of the action.²⁹ According to the language of the statute, this "action may be brought . . . either before a circuit or associate circuit judge."³⁰ This language is ambiguous at best and does little to resolve whether an aggrieved party is entitled to a jury trial once that party has exhausted his administrative remedies.

C. Summary of the Current Statutory Scheme

The general framework of Chapter 213 is very similar to that of former Chapter 296. Section 213.030 outlines "[t]he powers and duties of the commission," including the duty "to eliminate and prevent discrimination."³¹ Although the MHRA also deals with discrimination in areas outside of employment, § 213.055 specifically describes what constitutes "unlawful employment practices" under the act.³² First, the MHRA prohibits an employer from "refus[ing] to hire . . . discharg[ing] . . . segregat[ing]," "or otherwise . . . discriminat[ing] against any individual" based upon factors such as "race, color, religion, national origin, sex, ancestry, age or disability."³³ The MHRA also proscribes any attempt by "a labor organization to exclude or to expel [an individual] from its membership" based upon discriminatory factors.³⁴ Finally, the MHRA clearly bans employers from advertising practices that express discrimination, including inquiries into race, sex or religion on employment applications.³⁵

Section 213.075 describes the process through which a complaint may be filed with the commission for an alleged violation of the MHRA.³⁶ The statute requires the aggrieved party to file a complaint "within one hundred eighty days of the alleged act of discrimination."³⁷ Upon receiving the complaint, the commission must investigate the allegations without undue delay³⁸ and, if warranted, a panel comprised of commission members may hold a hearing where the accused party is required "to answer the charges."³⁹ After the hearing, the panel chosen to hear the case may issue a "cease and desist" order with regard to the "discriminatory practice."⁴⁰ The commission may also provide equitable relief to the aggrieved party, including reinstatement or back pay, and may "assess a civil penalty . . . for purposes of vindicating the public interest."⁴¹

Section 213.085 allows for judicial review of all decisions by the commission if the party appealing the decision "fil[es] a petition . . . within thirty days after . . . delivery of the notice of the commission's final decision."⁴² As mentioned above, the statute gives little guidance as to how that review process is to take place.⁴³ Although § 213.111 does state that an aggrieved party may elect to bring a cause of action "before a circuit or associate circuit judge" if the commission does not rule upon the complaint within 180 days, this language does not definitively settle the question with regard to a jury trial.⁴⁴ However, it is worth noting that § 213.111 does not limit the circuit court to only equitable relief when ruling upon a complaint filed under the MHRA. Rather, the statute states that "[t]he court may grant as relief, as it deems appropriate . . . and may award to the plaintiff actual and punitive damages."⁴⁵

D. The Constitutional Right to a Jury Trial in Missouri

1. The Right to a Jury Trial for Claims "Heretofore Enjoyed"

To fully understand the State ex rel. Diehl v. O'Malley⁴⁶ decision, one must first look to the interplay between the MHRA and the Missouri Constitution. In 1820, when the Missouri Constitution was adopted, it stated that "[t]he right of a trial by jury shall remain inviolate."⁴⁷ Although this definitive language would seem to guarantee the right to a jury trial almost without question, this is not the same language found in the state constitution today. Rather, the current provision reads, "The right of trial by jury as heretofore enjoyed shall remain inviolate."⁴⁸ This language has been understood to implicate only a "right as it existed at the time of the adoption of [the Missouri] Constitution, and in the class of cases to which it was then applicable."⁴⁹ This means that if the right to a jury trial was not recognized for comparable actions at the time the Missouri Constitution was adopted, no such right exists today.⁵⁰ Thus, the operative question put before the Supreme Court of Missouri when addressing whether a plaintiff is entitled to a jury trial is whether the plaintiff is seeking to enforce a right that was traditionally adjudged by a jury of his peers at common law.

For instance, in DeMay v. Liberty Foundry Co.,⁵¹ the Supreme Court of Missouri was faced with a constitutional challenge to Missouri's Workmen's Compensation Act.⁵² The Court examined the framework of the act and concluded that it was "based on a new theory of compensation" created in 1926, as compared with traditional theories of recovery available at common law.⁵³ The act allowed an employee (or the employee's surviving relatives) to recover compensation for the employee's injury or death, notwithstanding any fault or negligence of the employer, and irrespective of whether the injury suffered by the employee was intentionally caused or was the result of an accident.⁵⁴ At common law, in contrast, an employee was only able to recover from an employer for his injuries if the injuries were the direct result of the employer's misfeasance or nonfeasance.⁵⁵

Furthermore, the act sharply digressed from the common law by allowing a deceased employee's surviving relatives to recover for the injuries or death of a loved one.⁵⁶ At common law, only the deceased himself was entitled to recover monetary compensation for injuries suffered on the job.⁵⁷ Because of this provision and the contractual nature of the act, the Court concluded that the Workmen's Compensation Act operated like an insurance policy, "distinct from the existing theories of damages . . . . "⁵⁸ Thus, no constitutional right to a jury trial existed because the "theory of compensation" under the act was not "heretofore enjoyed" in 1820.⁵⁹

2. Actions in Equity are not Entitled to a Trial by Jury

Equitable actions did not include the right to a jury at common law.⁶⁰ As a result, it has been "thoroughly settled in [Missouri] . . . that actions or proceedings in equity are not triable by a jury, as a matter of constitutional right."⁶¹ For example, Missouri courts have historically denied the right to a jury trial in cases involving divorce proceedings, juvenile court proceedings and probate proceedings.⁶² Likewise, the Court in DeMay stressed that a cause of action under the Workmen's Compensation Act was equitable in nature, insofar as all claims under the statute were arbitrated by an administrative agency and the compensation offered to injured employees was "quasi-contractual . . . in a class by itself."⁶³

In Wolf v. Hartford Fire Ins. Co.,⁶⁴ the Supreme Court of Missouri held that a court should look to the pleadings presented by the parties in order to determine whether a suit is based in law or equity.⁶⁵ The deciding factor is whether the pleadings are predominantly legal or equitable in nature, and this is a question that must be resolved by the trial court.⁶⁶ However, this analysis becomes more complicated in suits involving intertwined equitable and legal issues.⁶⁷ In such cases, unless the legal issues dominate, a court must resolve the claims under its equitable jurisdiction.⁶⁸

III. Previous Attempts to Win the Right to a Jury Trial Under the MHRA

Diehl was not the first attempt by an aggrieved party under the MHRA to challenge a judge's refusal to put a case before a jury. However, it was the first time that any state court in Missouri recognized that a constitutional right to a jury trial existed with respect to the MHRA. Prior to Diehl, if an attorney had a client who felt discriminated against on the basis of race, sex, or religion, the attorney would most likely counsel the client to bring an action under comparable federal discrimination statutes, in addition to the MHRA. In doing so, the aggrieved party could file suit in federal court, where the plaintiff would be entitled to a jury trial for the federal claims and, after 1996, for claims under the MHRA as well.⁶⁹

A. Missouri Commission on Human Rights v. Lasky - No Jury Trial Right Under the MHRA

One of the first and most well-known cases addressing the right to a jury trial under the MHRA was Missouri Comm'n on Human Rights v. Lasky.⁷⁰ In Lasky, the commission successfully attempted "to prevent the trial court from utilizing a jury to review a determination by the Commission that [the employer] had" engaged in discriminatory behavior.⁷¹ The employer, Central Auto Air Conditioning Company, argued that the right to a jury trial was guaranteed under the Missouri Constitution, and that the MHRA was unconstitutional insofar as it denied that right.⁷² In holding in favor of the commission, the Missouri Court of Appeals for the Eastern District found that the administrative procedures outlined in the MHRA were not promulgated until 1961 (nor were they akin to rights enjoyed at common law) and, therefore, were not "heretofore enjoyed" at the time the Missouri Constitution was amended in 1945.⁷³ As a result, there was no constitutional right to have a case adjudicated by a jury under the MHRA.⁷⁴

Further, the court noted that the Missouri Constitution "provides that review of administrative agency decisions by the courts shall be 'as provided by law.'"⁷⁵ Thus, in line with the state Constitution, the Missouri legislature has the final say regarding the review process for any administrative body. With regard to the MHRA, the court stated that the legislature "has provided that such review shall be by a court without a jury."⁷⁶ Although the original version of the MHRA, Chapter 296, provided that review of commission decisions may be conducted by a jury, this "provision . . . did not convey a constitutional right to such trial, only a statutory right."⁷⁷ As a result, the legislature was free to amend the MHRA, removing the right to a jury trial, as it saw fit.⁷⁸

Finally, the court noted that the type of relief authorized under the MHRA was equitable in character.⁷⁹ Because "[i]t ha[d] been clearly established that cases of an equitable nature do not require a trial by jury," the court found that a trial by jury was likewise not mandatory under the MHRA.⁸⁰

B. Tolbert v. Sweeney - No Right to Jury Trial Under the Revised MHRA

In State ex rel. Tolbert v. Sweeney,⁸¹ James Tolbert alleged that he had been discriminated against on the basis of age and filed a complaint under the MHRA.⁸² When a circuit court judge granted the railroad company's motion to strike Tolbert's jury trial demand, Tolbert sought a writ of mandamus to compel Judge Miles Sweeney to grant his request for a jury trial.⁸³ However, the Missouri Court of Appeals, Southern District, agreed with Judge Sweeney's decision, holding that the General Assembly had "not intend[ed] to provide for trial by jury in cases under the MHRA."⁸⁴ Further, following the holding in Lasky, the court held that Tolbert did not have a constitutional right to a trial by jury because the rights addressed under the MHRA were not "known to the common law or in existence prior to the adoption of the [Missouri] Constitution" of 1945.⁸⁵

To glean legislative intent with regard to the MHRA, the court applied the presumption that "[w]hen the legislature amends a statute, changing its language, it is presumed to have intended the change to have some effect."⁸⁶ In line with this presumption, the court was confident that, had the legislature intended that an aggrieved party be allowed judicial review through a jury trial, the legislature would have provided explicitly for that right in 1986 when it repealed Chapter 296 and enacted Chapter 213 in its place.⁸⁷ Instead, the legislature "remain[ed] silent on the right to jury trial" when enacting the 1986 version of the statute.⁸⁸ From this silence, the court determined that the legislature intended to maintain the changes it had made to the statute in 1965, when it had expressly removed the right to a jury trial.⁸⁹

The court also looked to the plain meaning of the language in the statute, noting that the phrase "either before a circuit judge or associate circuit judge" did not evince that the legislature had intended a jury to review the commission's decisions.⁹⁰ Moreover, a phrase such as "[t]he court may grant as relief, as it deems appropriate" from the 1986 version of the statute was not the same type of definitive statement that the legislature had used in 1961 to demonstrate that it intended a jury trial, when one was requested.⁹¹ In the 1961 version of the statute, the legislature expressly provided that "consistent with the verdict of the jury," the judge was empowered "to affirm, reverse or modify the decision or order of the Commission."⁹² Therefore, because the legislature had previously used language in the MHRA that had allowed for review by a jury, its failure to use those same types of words in the 1986 version of the statute demonstrated the legislature's intent that a jury trial was not intended.⁹³

In an attempt to distinguish his case from Lasky, Tolbert argued that because he sought only monetary compensation, "he ha[d] a constitutional right to a jury trial."⁹⁴ The court disagreed, however. The court stated that Lasky stood for more than the proposition that a suit for equitable damages did not warrant a jury trial.⁹⁵ Rather, it was the broader holding of Lasky that controlled the outcome of the case - that the procedures of the MHRA were not "heretofore enjoyed" in 1945, when the Missouri Constitution was amended.⁹⁶ Thus, when the legislature enacted the MHRA in 1961 and the statute included the right to a trial by jury, this was a statutory grant, not a constitutional one.⁹⁷

Finally, the court noted that the MHRA looked very similar to a suit under a workers' compensation statute, which the court had held in DeMay was an action in equity and did not qualify for a trial by jury.⁹⁸ Because "the main thrust of relief to be afforded [under the MHRA is] equitable in nature,"⁹⁹ the court held that a suit for alleged violations of the act is actually a suit in equity, notwithstanding the monetary damages that may also be awarded to the aggrieved party.¹⁰⁰ Therefore, the court held that consistent with previous case law in Missouri, such "actions . in equity [were] not triable by a jury."¹⁰¹

C. Gipson v. KAS Snacktime Co. - A Right to Jury Trial in Federal Court

As was common practice in Missouri before the Diehl decision, George Gipson filed his claims for racial discrimination against his employer, KAS Snacktime Co., in federal district court.¹⁰² He pursued his discrimination claims under both Title VII and the MHRA.¹⁰³ After dismissal of his MHRA claims, Gipson appealed, claiming that his constitutional right to trial by jury had been violated.¹⁰⁴ While acknowledging that Missouri state courts had expressly denied the right to a trial by jury under the MHRA,¹⁰⁵ the Eighth Circuit Court of Appeals stated that "the right to a jury trial in federal court is a question of federal law, even when the federal court is enforcing state-created rights and obligations."¹⁰⁶ Thus, the court looked to the Seventh Amendment, not the Missouri Constitution, to decide the constitutional issue.¹⁰⁷

The general rule under "[t]he Seventh Amendment [is that the] right to jury trial extends to statutory causes of action, so long as the statute allows, and the plaintiff seeks, at least in part a legal remedy."¹⁰⁸ This remains true even in cases in which a plaintiff seeks equitable relief and only "incidental" or nominal monetary damages.¹⁰⁹ Accordingly, because the MHRA provides for both actual and punitive damages, the court held that plaintiffs asserting claims under the act were "entitled to a jury trial in federal court."¹¹⁰

The legacy of Gipson is that it cemented an aggrieved party's right to request a jury trial in federal court as long as: (1) diversity jurisdiction could be established or the party filed suit under a federal discrimination statute, in addition to the MHRA; and (2) the party requested at least nominal or incidental monetary damages, even if the party also sought equitable relief. Because of this groundbreaking decision, plaintiffs' attorneys increasingly filed their cases in federal court, notwithstanding the more expensive federal court fees and more restrictive discovery procedures.

D. Legislative Attempts to Amend the Missouri Human Rights Act

Employment attorneys were not alone in challenging the right to a jury trial under the MHRA. In 1989, the Missouri House of Representatives introduced a bill to amend the language of § 213.111 to allow for "a jury [trial] if one [wa]s requested by either party."¹¹¹ This bill passed in both the House and the Senate, but was ultimately vetoed by Governor Ashcroft on July 14, 1989.¹¹²

This did not deter Missouri legislators, however. In the past 10 years alone, there have been at least eight attempts initiated in either the House or the Senate to amend the act to include the right to a jury trial.¹¹³ Although none of these bills garnered enough support in the legislature to amend the MHRA, the repeated attempts to introduce this legislation sent a strong message to courts in Missouri that the jury trial issue had not been conclusively settled.

IV. Diehl v. O'Malley

Until January 2003, Missouri state courts had unanimously rejected any attempt by an aggrieved party to obtain a jury trial under the amended version of the MHRA, Chapter 213.¹¹⁴ However, State ex rel. Diehl v. O'Malley¹¹⁵ completely rewrote the law with regard to discrimination lawsuits in the state of Missouri. In the few short months since this decision was handed down, employment lawyers around the state - and indeed, even nationwide - have begun to rethink litigation strategies with regard to current and future discrimination suits.

A. The Facts

Kathleen Diehl, an employee at NASD Regulation, Inc., filed a complaint under the MHRA, alleging that her employer had discriminated against her "on [the] basis of age, sex, and retaliation for filing a charge of discrimination."¹¹⁶ Shortly thereafter, her employment at NASD was terminated.¹¹⁷ In compliance with the procedural requirements of the MHRA, Diehl awaited a response from the commission for 180 days.¹¹⁸ However, after the allotted time period had passed and still no decision had been reached in her matter, Diehl decided to take her case to court, requesting that the commission grant a "right to sue letter" under § 213.111.1.¹¹⁹

Once her case was in circuit court, Judge John O'Malley promptly overruled Diehl's motion for a jury trial.¹²⁰ Although O'Malley's refusal to grant a trial by jury was in line with prior case law interpreting the MHRA, on appeal the Supreme Court of Missouri held that the MHRA did, in fact, grant an aggrieved party the right to a jury trial.¹²¹ As a result, the Court issued a writ of prohibition, granting Diehl's motion and allowing her case to go before a jury.¹²²

B. Analysis

The Supreme Court of Missouri started its historical analysis of the MHRA by looking to the Missouri Constitution.¹²³ The Court began by noting that the words "as heretofore enjoyed" were actually added to the Missouri Constitution in 1875.¹²⁴ Although the Court recognized the divergent opinions regarding exactly to what time period this phrase in the Missouri Constitution refers, the Court concluded that the drafters of the 1875 Constitution had meant "to keep the year 1820 as the point of reference."¹²⁵ Thus, boiled down to its simplest form, the issue before the court was "whether Diehl's civil action for damages [wa]s the kind of case that carried a right of trial by jury in 1820."¹²⁶ Counsel for O'Malley argued that the phrase "heretofore enjoyed" referred to "specific claims triable in common law courts in 1820"; however, the Supreme Court of Missouri thought the phrase encompassed a much broader idea.¹²⁷ The right to a jury trial was not limited to those specific causes of action that were in being in 1820, but rather was available for all causes of action seeking monetary damages.¹²⁸

Historically speaking, the right to a jury trial has existed since before Missouri officially attained statehood in 1820.¹²⁹ For instance, the territorial laws allowed for the jury trial of all civil claims under two conditions: the amount in controversy had to be more than $100 and the parties had to request it.¹³⁰ Thus, when the common law was incorporated into the territorial law of Missouri in 1816, the right to a jury trial for money damages was firmly rooted in history and tradition.¹³¹ Looking backward at prior case law since 1820, the Court found that the right to a jury trial had only been denied in cases involving either equitable or administrative claims.¹³² While the "merger of law and equity" under current civil law makes the analysis much more convoluted, the Court held that it was more consistent with prior precedent to consider the right to a jury trial the general rule in Missouri, and to except only those claims arising under the Court's equitable powers.¹³³

The general rule, derived from Briggs v. St. Louis & S.F. Ry. Co.,¹³⁴ is that the right of a trial by jury will be implied whenever a party is seeking only monetary damages.¹³⁵ Further, the question is not whether the action was one that existed in 1820 or at common law, but whether the cause of action can be "analogized to" the types of claims that would have been properly before a Missouri court in 1820.¹³⁶

To illustrate these rules, the Court looked to the 19th century Dred Scott decision, in which Scott "sued for his freedom."¹³⁷ Although he only sought monetary damages in the amount of $10, Scott was allowed two jury trials.¹³⁸ The circuit court held that, because Scott was seeking monetary relief, his "action was at law" and not in equity.¹³⁹ Likewise, the Court found that Diehl's suit under the MHRA sought relief to "redress . . . wrongs done to [her] person" and, similar to Scott's claim, her right to a jury trial should not be foreclosed simply because the MHRA provides for equitable, as well as monetary, relief.¹⁴⁰

Although the MHRA contemplates redress in equity, as well as monetary damages, the Court concluded, in direct opposition to the holding in Tolbert, that this was not dispositive of the jury trial issue.¹⁴¹ Rather, "[w]hether the action is [characterized as] equitable or at law is determined by reference to the pleadings."¹⁴² Although Diehl could have sued for equitable relief (which she did not), her damages were monetary in nature and therefore "subject to the right of trial by jury."¹⁴³ In light of this holding, the Court ended its decision by overruling Tolbert and cases that had relied on Tolbert's flawed analysis.¹⁴⁴

V. The Practical Effects of Diehl v. O'Malley

The practical implications of the Diehl decision have yet to be seen in Missouri. Employment attorneys and legal critics alike, though, are predicting that this case could drastically change the way that employment discrimination suits are handled and, in turn, could create a considerable shift in caseload from federal to state courts in Missouri.¹⁴⁵

For instance, many plaintiffs' attorneys have opined that they will be more inclined to file their claims in Missouri state courts after the Diehl decision.¹⁴⁶ The reasoning offered for this switch is three-fold. First, judges in state courts are more willing to let cases reach the trial stage.¹⁴⁷ This is a bonus for aggrieved parties because juries are much more willing than are judges to award damages, especially in cases of discrimination,¹⁴⁸ and juries are simply "more generous when awarding damages to mistreated employees."¹⁴⁹ The second key reason offered for the predicted switch in caseloads is the fact that there are currently no caps on damages under the MHRA, as opposed to the caps imposed on damage awards under comparable federal laws.¹⁵⁰ Moreover, damage awards are not overturned as readily by state appeals courts.¹⁵¹

Finally, state courts offer a few procedural advantages to plaintiffs' attorneys that are not available in federal court. For instance, Missouri state court discovery procedures are much less rigid than the Federal Rules of Civil Procedure, allowing for a longer and more reasonable discovery period.¹⁵² In addition, attorneys may simply be more comfortable with the state court rules and procedures and more familiar with local state court judges than they are with their counterparts in federal court.¹⁵³

The drawbacks of the Diehl decision, according to some critics, are that recognizing the right to a jury trial will "unduly burden Missouri's small employers, [will] result in venue shopping and [will] cause additional burden to Missouri courts."¹⁵⁴ These concerns are based upon the fact that, prior to Diehl, employment discrimination cases constituted "more than a third of all federal civil cases," the biggest chunk "of claims on the federal civil docket."¹⁵⁵ As many of these cases move to a bloated state court docket, the Missouri courts could become overwhelmed.¹⁵⁶ As one employment litigator put it, "We're talking about a lot more cases on an already full docket."¹⁵⁷ One immediate impact of this decision is certain for those plaintiffs who had previously been "priced out of [federal] court" because they could not afford to file there.¹⁵⁸ These aggrieved parties may now be able to afford to bring their suit in Missouri state court (where court costs are less expensive) and receive the relief that they desire.¹⁵⁹

A. Impact on the State Court Docket

Although some parts of the state, most notably St. Louis County and City of St. Louis, have seen a decrease in the total number of civil cases filed in state courts, Jackson County courts continue to be inundated with an onslaught of both civil and criminal cases.¹⁶⁰ For instance, Jackson County saw an increase of 19.3 % in civil filings from 2001 to 2002.¹⁶¹ This increase in civil filings was echoed by the increase in criminal cases filed in Jackson County in 2002 - an astounding 27,994.¹⁶² When one takes into account the fact that only 19 circuit judges comprise the Jackson County judiciary, these figures become even more incredible.¹⁶³

By most conservative estimates, the Diehl decision may increase the civil filings in the state of Missouri by about 300 to 400 additional cases in the next year.¹⁶⁴ This immediate increase may not dramatically affect the courts in the City of St. Louis or St. Louis County; however, the increase in civil court filings will surely be felt in Jackson County, where resources are much tighter and stretched over a considerably larger pool of cases.¹⁶⁵

To counteract this growing pressure on Jackson County judges, some critics are predicting that changes may have to be made in the way that civil cases are handled. For example, although discovery procedures in Missouri state courts are relatively loose and malleable, Judge Dean Whipple of the U.S. District Court for the Western District of Missouri predicts that state court judges will adopt more formalized discovery procedures as a means of resolving cases more quickly and efficiently.¹⁶⁶ In addition, while summary judgment is granted much more frequently in federal court than in state court, Judge Whipple expects that state court judges will begin to grant summary judgment more liberally once they realize that it is the best way to deal with junk cases filed under the MHRA.¹⁶⁷ Regardless of the ultimate impact of the Diehl decision on Missouri state court procedures, it is very evident that state court judges are bound to go through a learning curve with regard to MHRA cases in the next year.¹⁶⁸

B. The Limits of Diehl

Although the Diehl decision paints with a broad brush, there still may be some types of claims under the MHRA that are not eligible for a jury trial. In his opinion, Judge Michael Wolff was very deliberate in stating that the holding would apply to those cases, like Diehl's, that were "for damages only."¹⁶⁹ As a result, Judge Wolff never touched on whether claims that seek both legal and equitable relief would also be entitled to a jury trial in state court.¹⁷⁰ Thus, the question still remains: What will the courts in Missouri do with the plaintiff who seeks monetary compensation and equitable relief?¹⁷¹

1. The "Equitable Cleanup Doctrine"

There have been two distinct schools of thought on this question. Some legal scholars think that Judge Wolff's narrow phraseology in Diehl completely forecloses an aggrieved party's right to a jury trial in state court if the party includes any claim for equitable relief in his pleadings.¹⁷² Rather, in lieu of a jury trial, a court of equity may resolve these mixed claims under what has been termed the "Equitable Cleanup Doctrine."¹⁷³ Essentially, the Equitable Cleanup Doctrine allows a court sitting in equity to resolve mixed actions in law and equity.¹⁷⁴ Therefore, after a court of equity grants an aggrieved party's claim for equitable relief,¹⁷⁵ the court may also resolve "incidental" legal claims without the assistance of a jury and "may decree [damages] where they are necessary to administer full and complete justice."¹⁷⁶ This allows a plaintiff to resolve his dispute in one legal forum without having to pick between his equitable and legal claims or separate his claims to be resolved by two different courts of law.

The Equitable Cleanup Doctrine has been utilized in Missouri for more than a century.¹⁷⁷ In State ex rel. Willman v. Sloan,¹⁷⁸ for instance, the Supreme Court of Missouri applied the doctrine to resolve an action arising out of the breach of a non-compete agreement.¹⁷⁹ The defendant argued that although the plaintiff had originally sought an injunction, the case had essentially lost its equitable character when the court decided to award the plaintiff monetary compensation for the damage caused by the breach.¹⁸⁰ The Court disagreed with the defendant's characterization of the case, however. It concluded that a court of "equity will retain jurisdiction of a cause once it has acquired it in order to afford full relief," unless it becomes clear that the plaintiff's equitable claims do not hold water.¹⁸¹ Further, while courts of equity are hesitant to award monetary compensation in most cases, a court of equity will do so if a plaintiff cannot be made whole by simply the granting of equitable relief.¹⁸²

2. The Seventh Amendment Approach

The other school of thought regarding the limits (or lack thereof) of the Diehl decision gives a much more generous reading to Judge Wolff's opinion. The legal scholars who believe that a broad application of Diehl is proper feel that lower courts should interpret Diehl to permit all claims under the MHRA to go before a jury, even those where only incidental or nominal damages are claimed.¹⁸³ In effect, the Missouri state courts would be conducting the same type of analysis under the state constitution that federal courts conduct under the Seventh Amendment of the United States Constitution:¹⁸⁴ the "right to jury trial extends to statutory causes of action, so long as the statute allows, and the plaintiff seeks, at least in part a legal remedy."¹⁸⁵ The support for this theory, according to its proponents, can be found in the language of the Diehl decision itself. "Though the 7th Amendment does not apply to the states, . . . [it] invites the same kind of . . . analysis."¹⁸⁸

If the lower courts agree with this broad reading of Judge Wolff's opinion and allow all claims under the MHRA to go before a jury as long as at least nominal damages are alleged, the Equitable Cleanup Doctrine will no longer be necessary with respect to claims filed under the MHRA.¹⁸⁷ Put differently, the lower courts will effectively create a reverse Equitable Cleanup Doctrine - allowing courts of law to resolve equitable claims as long as an aggrieved party also makes a claim for damages. Under this new approach (akin to the approach taken by federal courts), the right to a jury trial would extend to all of the legal issues in the plaintiff's complaint, with the court making a determination as to the incidental equitable claims included in the plaintiff's pleadings after the trial.¹⁸⁸

Although these two very distinct readings of the Diehl decision seem quite dramatic, the reality is that most employment attorneys will not test the waters. First, most aggrieved parties will not include equitable claims in their pleadings, because after suffering from discrimination, they will not desire to be reinstated to their former position.¹⁸⁹ Additionally, a vast majority of claims will still be removed to federal court because of the diversity of the parties.¹⁹⁰ Finally, plaintiffs' attorneys will probably avoid any claim for equitable relief to steer clear of the possibility that their client will be denied the right to have their case heard by a jury.¹⁹¹

VI. Comparative Analysis - The Right to a Jury Trial in Kansas and Iowa

Missouri is not the only state to recognize the right to a jury trial under an employment discrimination statute.¹⁹² For example, the Kansas equivalent of the MHRA, the Kansas Act Against Discrimination ("KAAD"), provides for de novo review of any commission decision "with or without a jury."¹⁹³ To determine whether a jury trial is applicable, courts in Kansas apply the same type of analysis utilized by the Eighth Circuit federal courts - if the pleadings contain any legal issues, even if the request for damages is only incidental to the equitable relief that is requested, a jury trial is proper.¹⁹⁴ Thus, as long as a plaintiff includes a request for damages in his complaint, he will be entitled to a trial by jury.

In contrast, Kansas federal courts have historically not allowed claims under the KAAD to go to a federal jury.¹⁹⁵ Although no case has specifically challenged this denial, in Wagher v. Guy's Foods, Inc.,¹⁹⁶ the Kansas Supreme Court opined that the changes in Title VII's approach to jury trials mandated a change in the way the Tenth Circuit looked at claims under the KAAD.¹⁹⁷ Because Title VII had been amended to allow the right to a jury trial whenever a plaintiff sought monetary damages, the court believed the federal courts in Kansas should follow the same logic and allow the right to a jury trial when a plaintiff seeks damages under the KAAD.¹⁹⁸ Only time will tell whether the federal courts in Kansas will heed this advice.

Iowa courts, on the other hand, find that no right to a jury trial exists with regard to claims filed pursuant to the Iowa Civil Rights Act ("ICRA").¹⁹⁹ In Smith v. ADM Feed Corp.,²⁰⁰ the Iowa Supreme Court analyzed both the statutory and constitutional right to a jury trial for claims filed under the ICRA.²⁰¹ The court concluded that no statutory right to a jury trial existed under the ICRA because the legislature had not specifically provided for it.²⁰² Further, the court stated that the right to a jury trial would be contrary to the purpose of the ICRA, which is to provide for the expedited investigation and resolution of claims filed under the act.²⁰³ A jury trial, by comparison, would significantly delay the resolution of complaints and would not "reduce the agency backlog."²⁰⁴ Thus, in the face of legislative silence on the issue, the court was not willing to recognize the statutory right to a jury trial.²⁰⁵

Like the Tenth Circuit Court of Appeals, the Iowa Supreme Court determined that claims filed under the ICRA were not entitled to the constitutional right to a jury trial.²⁰⁶ The court drew a parallel between the ICRA and Title VII, concluding that because the relief offered under both statutes was similar, the fact that Title VII did not allow for a jury trial was compelling authority.²⁰⁷ In addition, the court found the relief available to plaintiffs under the ICRA, including "cease and desist orders," reinstatement and other "remedial action[s]," to be predominantly equitable, notwithstanding the availability of monetary damages.²⁰⁸ Thus, no right to a jury trial was (nor currently is) available for claims under the ICRA.²⁰⁹

VI. Conclusion

While the Diehl decision will no doubt impact employment litigation strategy in the state of Missouri, perhaps the most important outcome of this decision is the effect that it will have on the state court docket and, more specifically, the effect it will have on state court procedures. Courts in Missouri, especially in Jackson County, will need to find an efficient way to handle claims filed pursuant to the MHRA. As state court dockets become over-burdened, more refined state court procedures may eventually emerge to handle the extensive discovery proceedings and motion practice associated with employment discrimination suits.

Regardless of the negative impact that the right to a jury trial in state court may have on the state court docket, Diehl also ensures that more aggrieved parties will have an opportunity to bring their claims before a jury. Parties that could not afford federal court fees prior to Diehl had no choice but to forego the right to a jury trial. Now, however, parties with meritorious claims have a much better shot at getting them before a jury in state court, where court costs are considerably less expensive.

At the same time, the Diehl decision will probably force all employers in the state of Missouri to take another look at their discrimination policies.²¹⁰ The possibility of large jury verdicts for discrimination claims should scare employers into revising policies, refreshing employees as to what constitutes inappropriate discriminatory behavior, and investing in an internal system for handling employee grievances.²¹¹ Taking these few steps up front may mean the difference in millions of dollars down the road.

Endnotes

¹ Ms. Hansen graduated with distinction from the University of Missouri-Kansas City School of Law in May 2003. She currently works at Stinson Morrison Hecker LLP as an associate in the firm's employment litigation group. Ms. Hansen would like to thank Stephen Bough, Erin Lary, Angela Harse and Heidi Schmitt for their help and guidance in the preparation of this article.
² 95 S.W.3d 82 (Mo. banc 2003).
³ Section 213.055, RSMo 2000.
⁴ Section 213.075.11(1), RSMo 2000.
⁵ Id. Equitable relief under the MHRA "includ[es], but [is] not limited to, payment of back pay; hiring; reinstatement or upgrading; restoration to membership in any respondent labor organization . . . [and] actual damages . . . . " Id.
⁶ See discussion in text accompanying notes 101-09.
⁷ 42 U.S.C. §§ 2000e-1-17 (2003).
⁸ 42 U.S.C. § 12112 (2003).
⁹ 29 U.S.C. §§ 621-634 (2003).
¹⁰ 42 U.S.C. § 1981 (2003).
¹¹ 42 U.S.C. at § 1981a(c).
¹² Id.
¹³ 42 U.S.C. § 1981a(b)(3). Damages under the statute are calculated as follows:

(A) [I]n the case of a respondent who has more than 14 and fewer than 101 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $50,000;
(B) in the case of a respondent who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000; and
(C) in the case of a respondent who has more than 200 and fewer than 501 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $200,000; and
(D) in the case of a respondent who has more than 500 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $300,000. Id.

¹⁴ 42 U.S.C. § 1981a.
¹⁵ 29 U.S.C. § 626.
¹⁶ 29 U.S.C. § 630.
¹⁷ 29 U.S.C. § 216. "Any employer who violates the provisions . . . of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages." Id.
¹⁸ State ex rel. Tolbert v. Sweeney, 828 S.W.2d 929, 930 (Mo. App. S.D. 1992) (referring to 1961 Mo. Laws 439).
¹⁹ Id.
²⁰ Tolbert, 828 S.W.2d at 930-31 (quoting §§ 296.030-296.040).
²¹ Id. (referring to §§ 296.030 - 296.040).
²² Id. (discussing § 296.050).
²³ Id. (referring to § 296.050.1).
²⁴ Id. (quoting § 296.050.2).
²⁵ Id. (quoting § 296.050.1).
²⁶ The revised § 296.050 stated that judicial review was to be conducted in accordance with the procedures set out in Chapter 536 of the Revised Statutes of Missouri. Id. (discussing § 296.050, RSMo). Chapter 536 specifically declared that "[t]he court shall hear the case without a jury." Id. (quoting § 536.140.1, RSMo 2000).
²⁷ Sections 213.010-213.111, RSMo 2000; see also Tolbert, 828 S.W.2d at 931 (analyzing the right to a jury trial under the 1986 revisions to the MHRA, Chapter 213).
²⁸ Tolbert, 828 S.W.2d at 931 (referring to § 213.085).
²⁹ Id. (referring to § 213.111.1).
³⁰ Id.
³¹ Section 213.030(1), RSMo 2000.
³² Section 213.055, RSMo 2000.
³³ Section 213.055.1(1), RSMo 2000.
³⁴ Section 213.055.1(2), RSMo 2000.
³⁵ Section 213.055.1(3), RSMo 2000.
³⁶ Section 213.075, RSMo 2000.
³⁷ Section 213.075.1, RSMo 2000.
³⁸ The statute does not mandate a specific time frame for the investigation of the complaint, stating only that "[a]fter the filing of any complaint, the executive director shall . . . promptly investigate the complaint." Section 213.075.3, RSMo 2000. However, an aggrieved party may elect to bring a cause of action in circuit court after 180 days. Section 213.111.1, RSMo 2000.
³⁹ Section 213.075.2 -.11, RSMo 2000.
⁴⁰ Section 213.075.11(1), RSMo 2000.
⁴¹ Sections 213.075.11(1)-(2), RSMo 2000.
⁴² Section 213.085.2, RSMo 2000.
⁴³ Like the 1965 version of the statute, § 213.085, RSMo 2000, merely states that "[j]udicial review shall be in the manner provided by chapter 536."
Section 213.085.3, RSMo 2000.
⁴⁴ Section 213.111.1, RSMo 2000.
⁴⁵ Section 213.111.2, RSMo 2000.
⁴⁶ 95 S.W.3d 82 (Mo. banc 2003).
⁴⁷ Mo. Const. art. XIII, § 8 (1820) (quoted in Diehl, 95 S.W.3d at 84).
⁴⁸ Mo. Const. art. I, § 22(a) (1945) (emphasis added).
⁴⁹ DeMay v. Liberty Foundry Co., 37 S.W.2d 640 (Mo. 1931).
⁵⁰ A dilemma arises, however, when courts attempt to determine to what point in time the phrase "as heretofore enjoyed" in the Missouri Constitution actually refers. See State ex rel. Missouri Comm'n on Human Rights v. Lasky, 622 S.W.2d 762, 763 (Mo. App. E.D. 1981). One theory is that the phrase refers to the right to a trial by jury at the adoption of the 1820 Missouri Constitution and under common law. Id. (referring to Miller v. Russell, 593 S.W.2d 598 (Mo. App. W.D. 1979)). The other theory is that the phrase requires a court to look to "the law in existence immediately prior to the adoption of the most recent Constitution." Id. (referring to Vannoy v. Swift & Co., 201 S.W.2d 350 (Mo. 1947)). Although the Supreme Court of Missouri has never explicitly addressed this convergence in opinion, in Diehl, Judge Wolff stated without hesitation that "[b]ased on precedents . . . the year 1820 is the point of reference." 95 S.W.3d at 85.
⁵¹ 37 S.W.2d 640 (Mo. 1931).
⁵² Id. at 645.
⁵³ Id.
⁵⁴ Id. at 644-45.
⁵⁵ Id.
⁵⁶ Id. at 645.
⁵⁷ Id.
⁵⁸ Id.
⁵⁹ Id. at 648 ("Workmen's compensation acts are of recent origin, and proceedings looking to awards of compensation, and for the ascertainment and determination of claims for compensation . . . were wholly unknown at common law . . . . ").
⁶⁰ See Wolf v. Hartford Fire Ins. Co., 263 S.W. 846, 847 (Mo. banc 1924).
⁶¹ 37 S.W.2d at 648.
⁶² 31 Jeffery T. McPherson, Mo. Prac., Mo. Civil Rules Handbook, Rule 69.01 (2003) (listing Mead v. Mead, 1 Mo. App. 247 (Mo. App. E.D. 1876) (divorce proceeding); State v. Heath, 181 S.W.2d 517 (Mo. 1944) (juvenile court proceeding); and Howard v. Strode, 146 S.W. 792 (Mo. 1912) (probate proceeding)).
⁶³ 37 S.W.2d at 645.
⁶⁴ 263 S.W. 846 (Mo. banc 1924).
⁶⁵ Id. at 847.
⁶⁶ See McPherson, note 62.
⁶⁷ Id. For instance, a landowner who seeks injunctive relief and damages when his neighbor builds a structure that causes damage to the landowner's property. See Linville v. Wilson, 628 S.W.2d 422 (Mo. App. W.D. 1982).
⁶⁸ Id. For a discussion of how a court of equity may resolve legal issues, see discussion infra in text accompanying notes 168-91.
⁶⁹ The right to a jury trial in federal court for claims brought under the MHRA was finally settled in Gipson v. KAS Snacktime Co., 83 F.3d 225 (8th Cir. 1996). Gipson held that the Seventh Amendment to the U.S. Constitution allows the right to a jury trial in federal court under the MHRA, even if such a right does not exist under the Missouri Constitution. Id. For further discussion, see discussion infra in text accompanying notes 101-09.
⁷⁰ 622 S.W.2d 762 (Mo. App. E.D. 1981).
⁷¹ Id. at 762.
⁷² Id. at 763.
⁷³ Id.
⁷⁴ Id.
⁷⁵ 622 S.W.2d at 763 (quoting Mo. Const. art. V, § 18).
⁷⁶ Id. (referring to Chapter 536 of the Revised Statutes of Missouri).
⁷⁷ Id.
⁷⁸ Id.
⁷⁹ Id.
⁸⁰ Id.
⁸¹ 828 S.W.2d 929 (Mo. App. S.D. 1992).
⁸² Id.
⁸³ Id. at 930.
⁸⁴ Id. at 932.
⁸⁵ Id. at 933 (quoting Lasky, 622 S.W.2d at 763).
⁸⁶ Id. at 932 (quoting Holt v. Burlington N. R.R. Co., 685 S.W.2d 851, 857 (Mo. App. 1984)).
⁸⁷ Id. at 931-32.
⁸⁸ Id. at 932.
⁸⁹ Id.
⁹⁰ Id. (referring to Mo. Rev. Stat. § 213.111.1).
⁹¹ Id. at 932 (quoting Mo. Rev. Stat. § 213.111.2).
⁹² Id. (referring to Mo. Rev. Stat. § 296.050.2 (1961)).
⁹³ Id.
⁹⁴ Id.
⁹⁵ Id. at 933.
⁹⁶ Id. at 933.
⁹⁷ Id.
⁹⁸ Id. at 934 (comparing the facts in Lasky and De May).
⁹⁹ Id. at 935. The courts in Tolbert and Lasky noted that only one penalty provided under the MHRA was not an equitable remedy - actual damages. See, e.g., id. at 934. "Penalties for violation of the MHRA which can be assessed by the Commission are back pay, hiring, reinstatement or upgrading, restoration to membership in any respondent labor organization . . . and actual damages." Id. (referring to § 213.075.8). Further, § 213.111.2 states that a "court may grant any permanent or temporary injunction, temporary restraining order, or other order, actual and punitive damages, court costs and reasonable attorney fees." Id. (referring to § 213.111.2). Thus, of the circuit court's possible remedies, only actual and punitive damages are not "equitable in nature." Id.
¹⁰⁰ Id.
¹⁰¹ Id. at 934.
¹⁰² Gipson v. KAS Snacktime Co., 83 F.3d 225, 228 (8th Cir. 1996).
¹⁰³ Id.
¹⁰⁴ Id. at 230.
¹⁰⁵ See, e.g., Tolbert, 828 S.W.2d 929; Lasky, 37 S.W.2d 648. Lasky is discussed in text accompanying notes 69-79.
¹⁰⁶ 83 F.3d at 230.
¹⁰⁷ Id.
¹⁰⁸ Id. at 231 (quoting Curtis v. Loether, 415 U.S. 189, 196 (1974)).
¹⁰⁹ Id. at 230 (referring to Dairy Queen, Inc. v. Wood, 369 U.S. 469, 470 (1962)).
¹¹⁰ Id. at 231 (agreeing with the holdings in Sullivan v. Curators of the Univ. of Mo., 808 F. Supp. 1420, 1424 (E.D. Mo. 1992) and Stewart v. Yellow Freight Sys., Inc., 702 F. Supp. 230, 231 (E.D. Mo. 1988)).
¹¹¹ Tolbert, 828 S.W.2d at 931 (quoting H.B. 758, 85th Gen. Assem., 1st Reg. Sess. (Mo. 1989)).
¹¹² See id.
¹¹³ See H.B. 1064, 91st Gen. Assem., 2d Reg. Sess. (Mo. 2002); H.B. 161, 91st Gen. Assem., 1st Reg. Sess. (Mo. 2001); H.B. 1384, 90th Gen. Assem., 2d Reg. Sess. (Mo. 2000); S.B. 533, 90th Gen. Assem., 2d Reg. Sess. (Mo. 2000); H.B. 130, 90th Gen. Assem., 1st Reg. Sess. (Mo. 1999); S.B. 203, 90th Gen. Assem., 1st Reg. Sess. (Mo. 1999); H.B. 1127, 89th Gen. Assem., 2d Reg. Sess. (Mo. 1998); S.B. 0071, 88th Gen. Assem., 1st Reg. Sess. (Mo. 1995).
¹¹⁴ See discussion in text accompanying notes 68-112.
¹¹⁵ 95 S.W.3d 82 (Mo. banc 2003).
¹¹⁶ Id.
¹¹⁷ Id.
¹¹⁸ Id. at 84.
¹¹⁹ Id.
¹²⁰ Id.
¹²¹ Id.
¹²² Id.
¹²³ Id. The Court did make note that although the Seventh Amendment did not guarantee the right to a jury trial in state court, the language in the Missouri Constitution, "the right of trial by jury . . . shall remain inviolate . . . . ," swept much broader than the simple guarantee included in the U.S. Constitution, " . . . the right of trial by jury shall be preserved . . . . " Id. Thus, the Court stated that the Seventh Amendment "invite[d] the same kind of historical analysis as the Missouri [Constitutional] provision." Id. at 84-85.
¹²⁴ 95 S.W.3d at 84-85.
¹²⁵ Id.
¹²⁶ Id. at 85.
¹²⁷ Id.
¹²⁸ Id.
¹²⁹ 95 S.W.3d at 85 (discussing the history of the right to a jury trial in Missouri, specifically that the right has "existed here from the time the United States acquired jurisdiction over the Louisiana Territory").
¹³⁰ Id. (quoting Mo. Terr. Laws 58, § 13 (1804)).
¹³¹ Id.
¹³² Id.
¹³³ Id. at 86.
¹³⁴ 20 S.W. 32 (Mo. 1892).
¹³⁵ 95 S.W.3d at 86 (referring to Briggs, 20 S.W.32 at 33).
¹³⁶ Id. (referring to the analysis in Bates v. Comstock Realty Co., 267 S.W. 641 (Mo. 1924)).
¹³⁷ Id. at 86-87 (discussing the Dred Scott decision, Scott v. Sanford, 60 U.S. 393 (1856)).
¹³⁸ Id. His suit was actually "for trespass, for assault and false imprisonment, and the relief sought was [only] nominal damages of ten dollars." Id.
¹³⁹ Id. at 86-87.
¹⁴⁰ Id. at 88. To further illustrate its point, the Court cited Sullivan v. Carlisle, 851 S.W.2d 510, 513-514 (Mo. banc 1993) (stating that a suit for wrongful death does not have a "common-law antecedent," and yet is entitled to be put before a jury) and Hansome v. Northwestern Cooperage Co., 679 S.W.2d 273 (Mo. banc 1984) (holding that a claim for retaliation is subject to a jury trial, although not in existence in 1820). Id.
¹⁴¹ Id. at 88-89.
¹⁴² Id. at 91.
¹⁴³ Id.
¹⁴⁴ Id. (overruling Tolbert, 828 S.W.2d 929; Pickett v. Emerson Elec. Co., 830 S.W.2d 459 (Mo. App. E.D. 1992); Wentz v. Industrial Automation, 847 S.W.2d 877 (Mo. App. E.D. 1992)).
¹⁴⁵ See, e.g., Larry Schumaker, What's the Diehl? Missouri Supreme Court Endorses Jury Trials in MHRA Cases, 1 Emp. L.Q. 1 (Mar. 2003); see also Dan Margolies, Ruling Expected to Lead to More Employment Cases in Missouri Courts, The Kansas City Star, Feb. 4, 2003, at B1, available at www.kansascity.com.
¹⁴⁶ See id.; see also Newschannel 5 Employment Law Segment: Jury Trials Allowed, (Feb. 4, 2003), at http://www.ksdk.com/news/news_article_lc.asp?storyid=34597 (hereinafter, Employment Law Segment).
¹⁴⁷ See Employment Law Segment. Federal courts will more readily grant an employer's motion for summary judgment than state courts. See Denise K. Drake, Speech at Kansas City Missouri Bar Association Continuing Legal Education Seminar, New Venue for Employment Lawsuits: What Every Employment Litigator Should Know (Apr. 4, 2003).
¹⁴⁸ Id.
¹⁴⁹ Id.
¹⁵⁰ Id.; see also Margolies, at note 145, at B1.
¹⁵¹ Margolies, at B1.
¹⁵² See Drake, note 147.
¹⁵³ Id.
¹⁵⁴ See Docket Summaries, Supreme Court of Missouri, SC84659, Right to Jury Trial under Missouri Human Rights Act (Dec. 18, 2002), available at http://www.courts.mo.gov.
¹⁵⁵ See Margolies, note 145, at B1.
¹⁵⁶ Id.
¹⁵⁷ Id.
¹⁵⁸ Id.
¹⁵⁹ Id.
¹⁶⁰ Judge Jay A. Daugherty, Speech at Kansas City Missouri Bar Association Continuing Legal Education Seminar, New Venue for Employment Lawsuits: What Every Employment Litigator Should Know (Apr. 4, 2003) (reporting that St. Louis City and St. Louis County saw a decrease of 2.9% and 3.5% respectively in the number of general civil cases filed between 2001 and 2002).
¹⁶¹ Id.
¹⁶² Id.
¹⁶³ Id.
¹⁶⁴ Id.
¹⁶⁵ Id.
¹⁶⁶ Judge Dean Whipple, Speech at Kansas City Missouri Bar Association Continuing Legal Education Seminar, New Venue for Employment Lawsuits: What Every Employment Litigator Should Know (Apr. 4, 2003).
¹⁶⁷ Id.
¹⁶⁸ Id. (stating, "My hat goes off to my state court brethren because they are in for some headaches.").
¹⁶⁹ 95 S.W.3d at 91.
¹⁷⁰ Id.
¹⁷¹ For example, an aggrieved party that files a claim for lost wages (damages) and reinstatement (equitable relief).
¹⁷² See Drake at note 147.
¹⁷³ 16 Steven A. Katz, Mo. Prac. Civil Rules Practice § 69.01(a)-3 (1998).
¹⁷⁴ Id.
¹⁷⁵ While reinstatement is obviously equitable relief, some confusion arises with regard to whether a claim for 'back pay' is equitable or legal in nature. See Drake, note 146. Historically, the Supreme Court has considered "back pay" to be an equitable remedy. See id. (referring to Teamsters v. Terry, 494 U.S. 558 (1990)). However, more recently, Justice Scalia eluded to the fact that "back pay," albeit restitutionary, might not be an equitable remedy. See id. (referring to Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002)). "Front pay" has always been thought of as an equitable remedy. See id. (mentioning Salitros v. Chrysler Corp., 306 F.3d 562, 571 (8th Cir. 2002)).
¹⁷⁶ See Katz at note 173. However, "a court of equity does not have jurisdiction to render a judgment for a plaintiff on legal issues in the absence of a finding that some equitable right of the plaintiff has also been violated." Id.
¹⁷⁷ See, e.g., Miller v. St. Louis & Kansas City Ry. Co., 63 S.W. 85 (Mo. 1901).
¹⁷⁸ 574 S.W.2d 421 (Mo. banc 1978).
¹⁷⁹ Id.
¹⁸⁰ Id. at 422.
¹⁸¹ Id. at 423. "[A] court of equity does not have jurisdiction to render a judgment for a plaintiff on legal issues in the absence of a finding that some equitable right of the plaintiff has also been violated." Id. (quoting Krummenacher v. Western Auto Supply Co., 217 S.W.2d 473, 473 (Mo. banc 1949).
¹⁸² Id.; see also Linville v. Wilson, 628 S.W.2d 422, 425 (Mo. App. W.D. 1982) (stating "that, when equitable jurisdiction attaches, the court may determine the legal issues incident to the entire case"); Dunn v. Bemor Petroleum, Inc., 680 S.W.2d 304, 307 (Mo. App. E.D. 1984) (holding that action for recission of "sales of unregistered securities" was equitable and, thus, under the Equitable Cleanup Doctrine, the court could determine legal issues of the case as well).
¹⁸³ See Drake, at note 147.
¹⁸⁴ See, e.g., Dairy Queen v. Wood, 369 U.S. 469 (1962) (holding that the right to trial by jury still exists where legal claims are only "incidental" to equitable claims).
¹⁸⁵ 83 F.3d 225 at 231.
¹⁸⁶ 95 S.W.3d at 84.
¹⁸⁷ See Meyers, at note 186.
¹⁸⁸ Id.
¹⁸⁹ See Drake, at note 147.
¹⁹⁰ See Martin M. Meyers, Speech at Kansas City Missouri Bar Association Continuing Legal Education Seminar, New Venue for Employment Lawsuits: What Every Employment Litigator Should Know (Apr. 4, 2003).
¹⁹¹ Id.
¹⁹² Arkansas is one in a list of states that allows for a trial by jury under its state employment discrimination statute, the Arkansas Civil Rights Act. See Ark. Code Ann. § 16-123-107 (Supp. 2002); see also Nebraska Fair Employment Practices Act, Neb. Rev. Stat. §§ 48-1101-26 (1998) (authorizing a civil action during any phase of the proceeding); Moses v. Burleigh County, 438 N.W.2d 186, 194 (N.D. 1989) (holding that a jury trial is proper under the North Dakota Human Rights Act, N.D. Cent. Code § 14-02.4-03 (2002), as long as some sort of "legal relief is requested"); South Dakota Division of Human Rights, S.D. Codified Laws §§ 20-13-10 & 20-13-35.1 (Supp. 2000) (authorizing jury trial "in lieu of a hearing"); but see Minnesota Human Rights Act, Minn. Stat. §§ 363.01-.20 (2002) (stating that if a party chooses to pursue his cause of action in district court, the outcome will be "determined by a judge sitting without a jury." Section 363.14(2)).
¹⁹³ See Kan. Stat. Ann. § 44-1011(b)(3) (2000).
¹⁹⁴ See Wagher v. Guy's Foods, Inc., 885 P.2d 1197, 1210-11 (Kan. 1994) (stating that because the legislature amended the KAAD to include "damages for pain, suffering, and humiliation," claims under the KAAD clearly contain a request for legal, as well as equitable, relief).
¹⁹⁵ See Best v. State Farm Mut. Auto. Ins. Co., 953 F.2d 1477, 1482 (10th Cir. 1991) (finding KAAD to be "analogous to Title VII," and therefore concluding that no right to jury trial existed under the KAAD, because no such right existed under Title VII at the time).
¹⁹⁶ 885 P.2d at 1210-11.
¹⁹⁷ Id.; see also Pennington v. Allstate Ins. Co., 1996 WL 476007 (W.D. Mo. 1996) (holding that the Best opinion was outdated).
¹⁹⁸ Id.
¹⁹⁹ See Iowa Code Ann. § 216.1-.20 (West Supp. 2003).
²⁰⁰ 456 N.W.2d 378, 384 (Iowa 1990).
²⁰¹ Id. at 380-84.
²⁰² Id. at 381. "It is reasonable to believe that if the Legislature intended to confer the right to a jury trial when . . . it authorized a complainant to bring an action in Superior Court, it would have expressly so provided." Id. (quoting Shaner v. Horizon Bancorp., 561 A.2d 1130, 1135 (N.J. 1989)).
²⁰³ Id.
²⁰⁴ Id. at 381.
²⁰⁵ Id.
²⁰⁶ Id. at 384.
²⁰⁷ Id. at 382.
²⁰⁸ Id. at 383.
²⁰⁹ Id. at 384. This decision remains good law in Iowa despite the changes made to Title VII, allowing for a jury trial in cases where a plaintiff seeks monetary damages. For further discussion of how this case remains controlling precedent in Iowa, see Reiss v. ICI Seeds, Inc., 548 N.W.2d 170, 175 (Iowa Ct. App. 1996) (stating, "[i]n the absence of any contradictory court authority or legislative directive, we decline to depart from the supreme court's holding in Smith.").
²¹⁰ Drake at note 147; see also Employment Law Segment, note 146.
²¹¹ Id.

JOURNAL OF THE MISSOURI BAR
Volume 59 - No. 6 - November-December 2003