Ask the average non-theological scholar to list the Ten Commandments and you’ll probably hear “thou shalt not kill,” “thou shalt not steal,” “honor thy parents,” and perhaps something about a neighbor’s wife.
Ask the same question regarding the Bill of Rights, the first 10 amendments to the United States Constitution, and you’ll probably be told about “freedom of speech,” “freedom of religion,” and the right to bear arms.
It is highly unlikely that the Seventh Amendment, which preserves one’s right to a jury trial in legal disputes where the value in controversy exceeds twenty dollars, will be mentioned. And the Wyoming Legislature’s attention to this amendment certainly differs from its attention to the other, arguably more renowned, amendments. Unlike the seemingly sacred and ever expanding Second Amendment right to bear arms, the Wyoming Legislature constantly subjects the Seventh Amendment right to trial by jury to numerous limitations and indignities.
During the 2017 legislative session, the Wyoming Legislature expanded Second Amendment rights. House Enrolled Act (HEA) 93, titled “School Safety and Security,” authorizes a school district’s board of trustees to adopt rules, in consultation with local law enforcement, allowing school district employees who hold a valid concealed weapons permit to carry a concealed firearm on school property and in school facilities. HEA 120, which allows convicted felons to possess antique firearms, also passed.
The Legislature repealed the Wyoming Gun Free Zones Act and made it legal to possess concealed weapons in government meetings, further expanding Second Amendment rights. Gov. Matt Mead, following a lengthy description of his previous support for legislation expanding Second Amendment rights, vetoed the measure, HEA 107. The veto was softened by the governor’s suggestion that “[R]epeal of gun free zones should have the benefit of a full review by a joint legislative committee during an interim study between sessions.”
Holding government to its principles
Thomas Jefferson wrote, “I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution.” Unfortunately, in Wyoming, the Seventh Amendment is not nearly as revered as the Second. Legislation reducing the scope and power of the Seventh Amendment is sponsored and passed every legislative session and frequently takes three forms.
The first form of limitation on the right to trial by jury is legislation clearly designed to provide complete or partial legal immunity to a chosen class. Two notable examples are HEA 63, “Search and Rescue Operations” and the well-established Wyoming Governmental Claims Act. For decades, if not centuries, the common law rule was that a citizen had no duty to volunteer or help others in a dangerous situation. However, once an individual chose to engage and volunteer, that individual had an obligation to act reasonably under the circumstances.
HEA 63 eliminates the age-old duty to rescue reasonably by providing that an individual engaged in search and rescue operations under a county sheriff’s coordination, acting within the scope of that individual’s duties as a volunteer, is personally immune from civil liability for any act or omission resulting in damage or injury.
HEA 63’s effect on the Seventh Amendment is slight. Claims against individual rescuers, regardless of whether they conducted rescue operations reasonably, will now be impossible to pursue. However, because “official” Search and Rescue operations are typically coordinated through a county sheriff’s office, that governmental entity can still be held accountable for the actions or failures of its volunteers— subject of course, perhaps to Jefferson’s dismay, to the limitations of the Wyoming Governmental Claims Act. The Wyoming Governmental Claims Act, which strictly deliniates the types of claims that can be brought against the state and all other governmental entities in Wyoming, not only limits the amount of compensation available for these specific claims, but is itself a massive diminution of Seventh Amendment rights.
The second form of legislation that dilutes Seventh Amendment rights in Wyoming is partial or quasi-immunity legislation. House Bill 72, “Volunteer Health Care,” provides an example. House Bill 72 was a fairly complicated but well-intentioned bill that provided immunity to private medical professionals and health care providers who, after signing a contract with the Wyoming Department of Health, would be considered state employees or agents when providing free health care. House Bill 72 was not designed to provide total immunity. Instead, it sought to incentivize private citizens by offering limited immunity – the same protection available to government employees under the Wyoming Governmental Claims Act. House Bill 72 ultimately did not pass.
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The third way Seventh Amendment rights of Wyoming citizens are diminished is through special legislation. While legislation such as HEA 63 and House Bill 72 proposed legitimate objectives that were beneficial to society, HEA 108, the deceptively titled “Ski Safety Act,” limits a citizen’s ability to sue ski area owners and operators — thereby prioritizing the profit making ability of a handful of ski area owners over the rights and actual safety of thousands of families. The Ski Safety Act, a gift to the powerful and well-connected ski industry, is a classic example of a cleverly disguised immunity bill.
Prior to the adoption of the Ski Safety Act, for several decades the Wyoming Recreation Safety Act struck a balance by preserving the Seventh Amendment right to trial by jury for recreational users while precluding claims based on the “inherent risks” of recreational activities. The idea was that if an injury was caused by an inherent risk of the recreational activity, then the recreational provider could not be held accountable. If the injury was due to something that was not an inherent risk of the activity, such as the negligence of the recreational provider, then the claim could proceed. Determining whether an injury was caused by an inherent or non-inherent risk was rightfully left to an experienced judge or, as intended by the Constitution, a jury.
The Ski Safety Act obliterates the balance of the Recreation Safety Act by defining nearly everything that can happen at a ski area as an inherent risk of skiing – regardless of the specific facts and circumstances that actually caused the injury. At its core, the Ski Safety Act provides de facto immunity while masquerading as a safety statute. This approach potentially violates the Wyoming constitution, and is an insult to Wyoming citizens and our Seventh Amendment rights,
The U.S. Constitution and its Seventh Amendment provides Wyoming citizens the right to trial by jury for most controversies, and all elected and appointed officials in the State of Wyoming take an oath to “support, obey and defend the constitution of the United States, and the constitution of the State of Wyoming.” Wyoming citizens should look forward to a time when all of our rights enshrined in the U.S. and State constitutions, instead of a select and favored few, are deemed worthy of support and defense.
Attorney Mark Aronowitz directs Lawyers and Advocates for Wyoming, a public interest, not-for-profit law firm based in Jackson.
Thank you Mark for this great piece.