Sharon E. ANZALDUA, Plaintiff-Appellant,
v.
Rudolph Neal BAND and Michigan State University, Defendants-Appellees.
John Edward SUROWY, Plaintiff-Appellee,
v.
WAYNE STATE UNIVERSITY, Defendant-Appellant.
Docket Nos. 168358, 170339.
Court of Appeals of Michigan.
Submitted November 21, 1995, at Lansing. Decided May 14, 1996, at 9:10 a.m. Released for Publication July 12, 1996.*545 Thomas J. Jewett, Okemos, and Green and Green by Philip Green and Christine A. Green, Ann Arbor, for Sharon E. Anzaldua.
Dib and Fagan, P.C. by Barry S. Fagan and Robert A. Dubin, Detroit, for John E. Surowy.
Fraser Trebilcock Davis & Foster, P.C. by Michael E. Cavanaugh and Mark R. Fox, Lansing, for Rudolph N. Band.
Michael J. Kiley, East Lansing, for Michigan State University.
Daniel J. Bernard, Detroit, for Wayne State University.
*546 Before MARKMAN, P.J., and O'CONNELL and PAYANT,[*] JJ.
MARKMAN, Presiding Judge.
In Docket No. 168358, plaintiff Anzaldua appeals by leave granted a trial court order striking her jury demand. In Docket No. 170339, defendant Wayne State University appeals by leave granted a trial court order denying its motion to strike plaintiff Surowy's jury demand. These cases, consolidated for appeal, are actions for relief under the Whistleblowers' Protection Act (WPA), M.C.L. 15.361 et seq.; M.S.A. 17.428(1) et seq. They present the issue whether the right to a jury trial is retained in actions under the WPA. We conclude that it is. We further conclude that the fact that the defendant universities are state institutions does not change this result. We therefore reverse in Docket No. 168358 and affirm in Docket No. 170339.
The WPA is silent regarding whether parties bringing actions under its provisions are to be afforded a right to a jury trial.[1] In both cases here, the trial courts appropriately framed the issue as whether parties bringing actions under the WPA retained the right to a jury trial under the Michigan Constitution. Const.1963, art. 1, 14 states in pertinent part:
The right of trial by jury shall remain, but shall be waived in all civil cases unless demanded by one of the parties in the manner prescribed by law.
The "shall remain" language indicates that this provision retains the right to a jury trial as it existed at the time the constitution was adopted and neither restricts nor enlarges it. Accordingly, the question before us in interpreting this provision is what the "right of trial by jury" was in 1963.[2] We must define the parameters of the constitutional right to a jury trial to determine whether this right is retained in actions under the WPA.
Here, the trial courts came to opposite conclusions regarding whether the right to a jury trial is retained in actions under the WPA because each used a different test to analyze the constitutional right to a jury trial. In Docket No. 168358, the trial court stated, "there is no right to a jury trial under the [WPA] because that Act was not a common law cause of action prior to the adoption of the 1963 Constitution." In Docket No. 170339, the trial court compared the case before it to King v. General Motors Corp., 136 Mich.App. 301, 356 N.W.2d 626 (1984), which held that the right to a jury trial is preserved in actions under the Civil Rights Act. It stated that "an employment discrimination action constitutes a suit for damages and is therefore an action at law which existed prior to the adoption of the Michigan Constitution" and concluded that "I think that is the issue."
These two approaches differ regarding the conditions under which the constitutional right to a jury trial is retained when the Legislature creates a new cause of action without indicating whether the action is to be tried by a jury or the bench. We will refer to these two approaches as the historical-analogue approach and the nature-of-action approach throughout this opinion.[3] Under the historical-analogue approach, the test is whether a similar cause of action in which a jury trial was accorded existed at the time the 1963 constitution was adopted. Under the nature-of-action approach, the test is *547 whether the cause of action would have been denominated as legal at the time that the 1963 constitution was adopted and, therefore, whether a party bringing the action would have been accorded a right to a jury trial.
Our nomenclature for the two approaches is intended to distinguish them. However, the distinction between them is more subtle than this nomenclature-indicates. Both approaches have an historical-analogue element. Because Const.1963, art. 1, 14 states that the right to a trial by jury shall "remain" as it was at the time the state constitution was adopted, the focus under each approach is whether a party bringing a similar cause of action would have been afforded a right to a jury trial at that time. With respect to this historical-analogue element, the distinction between the two approaches is how broadly the concept of a similar cause of action is read. The historical-analogue approach requires the existence before the adoption of the 1963 constitution of a common-law action protecting similar legal interests in which a right to a jury trial was afforded. The nature-of-action approach requires only that the cause of action at issue be legal as opposed to equitable, because the common law at the time of the adoption of the 1963 constitution recognized a right to a jury trial in actions denominated as legal.
Both approaches also consider the nature of the actionÔÇöwhether it is legal or equitable. The denomination of an action as legal or equitable determines whether there is a right to a jury trial under the nature-of-action approach. The historical-analogue approach also analyzes whether an action is legal or equitable to decide if a right to a jury trial is retained. Under this approach, if an analogue predating the 1963 constitution exits, it must still be determined whether the analogue incorporated the right to a jury trial. The cases supporting the historical-analogue approach require the existence of an analogue at common law that afforded the right to a jury trial at the time the 1963 constitution was adopted. "Common law" is generally read as the opposite of "statutory." But "common law" is also an antonym to "equitable." Black's Law Dictionary (5th ed.), at 251. The Seventh Amendment, U.S. Const., Am. VII, provides the federal constitutional right to a jury trial "[i]n suits at common law." In Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 41, 109 S. Ct. 2782, 2790, 106 L. Ed. 2d 26 (1989), the United States Supreme Court held:
We have consistently interpreted the phrase "Suits at common law" to refer to "suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized and equitable remedies were administered." Parsons v. Bedford, 28 U.S. (3 Pet) 433, 447; 7 L. Ed. 732 (1830).
Accordingly, in the cases supporting the historical-analogue approach, the term "common law" is appropriately read as a contrast to equity. The requirement of these cases of a common-law analogue is therefore a requirement of a legal analogue. Further, several of the cases supporting the historical-analogue approach explicitly discuss the legal or equitable nature of the case before them. For example, in In re Colon, 144 Mic.App. 805, 818, 377 N.W.2d 321 (1985), this Court set forth this underlying principle:
In general, before the Constitution was adopted, there was a right to jury trial at law but not in equity.
Thus, under the historical-analogue approach, the denomination of an action as legal or equitable determines whether there is a right to a jury trial only if there existed before the adoption of the 1963 constitution a common-law cause of action. Accordingly, while both approaches ultimately look to the nature of the action, they differ in that the historical-analogue approach has the additional requirement that a similar common-law cause of action existed before the adoption of the 1963 constitution.
The language of the constitutional provision does not indicate which of these two approaches is correct. There is Michigan case law supporting both approaches. Accordingly, the case law offers no definitive guidance regarding which approach correctly construes the constitutional provision. Even individual cases are often ambiguous regarding which approach controlled the determination *548 whether the right to a jury trial had been retained.
We found cases that arguably support the historical-analogue approach. Conservation Dep't v. Brown, 335 Mich. 343, 55 N.W.2d 859 (1952), involved the confiscation of an illegal fishing net. The Court noted that the statute at issue was silent regarding whether there was a right to a jury trial and held:
[T]he right to trial by jury is preserved in all cases where it existed prior to the adoption of the Constitution. The constitutional guaranty applies to cases arising under statutes enacted subsequent to adoption of the Constitution, which are similar in character to cases in which the right to jury trial existed before the Constitution was adopted....
The precise question presented, then, is whether the proceedings here are of such character that a jury trial would have been available before adoption of the Constitution. [Id. at 346-347, 55 N.W.2d 859 (citations omitted).]
The Brown Court noted that the proceedings at issue were not equitable in nature. Id.at 347, 55 N.W.2d 859. But we note that an action involving the confiscation of personal property is not an ordinary legal action. The Brown Court concluded:
We are not persuaded that this is a cause of action known to the common law in which a jury trial was accorded prior to adoption of the Constitution of this state. [Id. at 350, 55 N.W.2d 859.]
Several other cases that arguably support the historical-analogue approach determined that no right to a jury trial was retained. In Chamberlin v. Detroit Edison Co., 14 Mich.App. 565, 165 N.W.2d 845 (1968), this Court affirmed the dismissal of the property owners' complaint contesting nonjury utility condemnation proceedings. In Meyer v. Dep't of Treasury, 129 Mich.App. 335, 341 N.W.2d 516 (1983), this Court affirmed the denial of a jury trial request in Tax Tribunal proceedings. In Tomlin v. Dep't of Social Services, 154 Mich.App. 675, 398 N.W.2d 490 (1986), an action regarding alleged overpayments of medicaid benefits, this Court found no right to a jury trial.
In In re Colon, supra, this Court held that there was no right to a jury trial in child custody matters. The Colon Court held:
[R]espondent's entitlement to a jury trial depends on whether this case is "similar in character" to cases affording a jury trial before the Constitution was adopted. In addition, we must look to whether the instant proceeding involves a cause of action "known to the common law." [Id. at 818, 377 N.W.2d 321.]
We note that the Colon Court's use of the term "in addition" indicates that this approach has two distinct elements: (1) that the cause of action at issue be "similar in character" to actions predating the 1963 constitution that afforded a jury trial and (2) that the cause of action at issue be "known to the common law." The Colon Court concluded that child custody matters are clearly equitable in nature and rejected the respondent's argument that he was entitled to a jury trial. Id. at 819, 377 N.W.2d 321.
The basis for the result in each of these five cases in which no right to a jury trial was found is unclear. None of them were traditional legal actions that sought legal remedies. Therefore, application of the nature-of-action approach to these actions would have also resulted in determinations that no right to a jury trial was retained. A case, legal in nature, in which no right to a jury trial was found solely on the basis of the lack of an historical analogue would have directly addressed the situation in which application of the two approaches would yield different results. However, we found no such case.
Several cases in which the right to a jury trial was found to be retained under the Civil Rights Act (CRA), M.C.L. 37.2101 et seq.; M.S.A. 3.548(101) et seq., and the Handicappers' Civil Rights Act (HCRA), M.C.L. 37.1101 et seq.; M.S.A. 3.550(101) et seq., also arguably support the historical-analogue approach. In King v. General Motors Corp., supra at 308-309, 356 N.W.2d 626, this Court held that the right to a jury trial is retained in an employment discrimination action under the CRA:
An employment discrimination action constitutes a suit for damages and is therefore *549 an action at law which existed prior to the adoption of the Michigan Constitution in 1963. Ferguson v. Gies, 82 Mich. 358, 365; 46 N.W. 718 (1890); St John v General Motors Corp, 308 Mich. 333, 336; 13 N.W.2d 840 (1944); Pompey v General Motors Corp, 385 Mich. 537, 556-557; 189 N.W.2d 243 (1971).
We note that the basis of the King Court's conclusion that the right to a jury trial was retained is ambiguous. It is unclear whether its conclusion turned on the fact that the suit was a legal action or on the fact that there existed common-law analogues predating the 1963 constitution that afforded a right to a jury trial.
In Smith v. Univ. of Detroit, 145 Mich.App. 468, 477, 378 N.W.2d 511 (1985), a race discrimination action under the CRA by students, this Court reversed a denial of a jury trial request because "common-law actions for damages for similar discriminatory acts were recognized prior to the adoption of the 1963 constitution." In Barbour v. Dep't of Social Services, 172 Mich.App. 275, 280-281, 431 N.W.2d 482 (1988), this Court affirmed the denial of the defendant's motion to strike a jury demand in an employment discrimination action under the HCRA on the basis that "employment discrimination claims are actions at law which existed prior to the adoption of the state constitution."
These cases that support the historical-analogue approach fail to provide clear authority for choosing the historical-analogue approach over the nature-of-action approach. The language of these cases is ambiguous. The requirement of an historical analogue is drawn from language stating that the constitutional guaranty applies to actions "similar in character" to cases having the right to a jury trial at the time Michigan's constitution was adopted. As noted above, such language can be read to require the existence of an analogue predating the 1963 constitution or to refer to the nature of the action; i.e., to require that the cause of action at issue be legal in nature because legal actions retained the right to a jury trial at the time the constitution was adopted.
We acknowledge that the opinion in In re Colon, supra, explicitly refers to two separate elements: "similar in character" and "known to the common law." The language of Colon thus provides the least ambiguous evidence that "similar in character" should be read to require an historical analogue rather than to require that action be legal in nature. But the Colon Court ultimately focused on the equitable nature of child custody matters rather than the absence of an historical analogue in holding that there was no right to a jury trial. Colon at 818-819, 377 N.W.2d 321.
In contrast to the cases supporting the historical-analogue approach, we found cases supporting the nature-of-action approach that unambiguously identify the factors on which their determinations regarding the right to a jury trial turn. These cases focus exclusively on the nature of the action to determine whether there is a right to a jury trial. In Kahoun v. Metropolitan Life Ins. Co., 12 Mich.App. 441, 445, 162 N.W.2d 922 (1968), this Court held that an insured was improperly denied a jury trial in an action for reimbursement expenses because "[t]he right to jury trial should not be abridged in actions brought at law."
In Abner A. Wolf, Inc. v. Walch, 385 Mich. 253, 188 N.W.2d 544 (1971), an action to foreclose a mortgage, the defendants demanded a jury trial in connection with their counterclaim that raised legal issues. The entire case was tried before a jury and the trial judge made no independent factual findings regarding the equitable issues. The Wolf Court remanded for reargument before the trial judge. It cited with approval 1 Honigman & Hawkins, Michigan Court Rules Annotated, p. 11:
Most important, the distinctions between law and equity must continue to be recognized for the purpose of preserving constitutional rights to trial by jury in legal matters and trial by court in equity matters. [Wolf at 261, 188 N.W.2d 544.]
In Hackett v. Connor, 58 Mich.App. 202, 207, 227 N.W.2d 292 (1975), this Court reversed the denial of a jury trial request in an action for breach of an oral contract, holding:
To determine the merits of this claim, we must ascertain whether the issues *550 raised by plaintiffs' complaint were "historically... tried by the law courts or by the chancellor as of the time when the constitutional guarantee to the right of trial by jury was adopted." 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 414.
In Dutka v. Sinai Hosp. of Detroit, 143 Mich.App. 170, 371 N.W.2d 901 (1985), this Court held that the trial court erred in striking a jury demand in an action for breach of an implied contract. The Dutka Court focused on the nature of the relief sought, stating:
If a plaintiff seeks only equitable relief, he has no right to a trial by jury. However, in this case, the plaintiff sought both equitable relief in the form of specific performance and legal relief in the form of damages. In this situation the plaintiff had a right to have a jury hear his damage claim. [Id. at 173, 371 N.W.2d 901 (citations omitted).]
In several cases, no right to a jury trial was found because of the equitable nature of the action. In Farwell v. Neal, 40 Mich.App. 351, 354, 198 N.W.2d 801 (1972), this Court affirmed a denial of a jury trial request in an action involving an alleged release with respect to an automobile accident because the validity of a release was an equitable issue to which no right to a jury trial attached. In Wolfenden v. Burke, 69 Mich.App. 394, 399, 245 N.W.2d 61 (1976), a real property action, this Court affirmed a ruling that the action was equitable and, therefore, to be tried by the court. In Thomas v. Steuernol, 185 Mich.App. 148, 155-156, 460 N.W.2d 577 (1990), an attempt to reopen an estate, this Court affirmed the circuit court dismissal of the plaintiff's claim for a jury trial because he had alleged only equitable causes of action. Finally, in In re Forfeiture of $1,159,420, 194 Mich.App. 134, 154-155, 486 N.W.2d 326 (1992), this Court found no constitutional right to a jury trial in forfeiture matters because they are equitable.
These cases supporting the nature-of-action approach are not ambiguous in the ways that those supporting the historical-analogue approach are. These cases focus exclusively on the nature of the action to determine whether there is a right to a jury trial. They do not mention the concept of an historical analogue. Accordingly, neither the language nor the results in these cases are ambiguous concerning the factors on which the right to a jury trial turn.
To decide whether the constitutional right to a jury trial is retained in the present actions under the WPA, we must choose between the historical-analogue and nature-of-action approaches. Here, we believe that our decision is dependent on which of these approaches we choose. Under the historical-analogue approach, we would conclude that no right to a jury trial is retained under the WPA because we believe that no true common-law analogue of the WPA predated the 1963 constitution. In Dudewicz v. Norris Schmid, Inc., 443 Mich. 68, 503 N.W.2d 645 (1993), the plaintiff alleged that he was discharged in violation of the WPA and in contravention of public policy. In the course of its determination that the WPA provided an exclusive remedy, the Court held:
At common law, there was no right to be free from being fired for reporting an employer's violation of the law. [Id. at 78, 503 N.W.2d 645.]
See also Shuttleworth v. Riverside Osteopathic Hosp., 191 Mich.App. 25, 27, 477 N.W.2d 453 (1991). Here, plaintiffs argue that cases acknowledging that an employer may not discharge an at-will employee for reasons that contravene public policy are an historical analogue to a cause of action under the WPA. We do not believe such cases are sufficiently similar to actions under the WPA to constitute an historical analogue. Further, we found no such Michigan authority that predated the 1963 constitution. See, for example, Sventko v. Kroger Co., 69 Mich.App. 644, 647, 245 N.W.2d 151 (1976).
Under the nature-of-action approach, however, we believe that a right to a jury trial would be retained here under the WPA. The WPA provides that a person may bring an action under it "for appropriate injunctive relief, or actual damages, or both." Section 3(1) of the WPA, M.C.L. 15.363(1); M.S.A. 17.428(3)(1). In Hopkins v. Midland, 158 Mich.App. 361, 374, 404 N.W.2d 744 (1987), and Tyrna v. Adamo, Inc., 159 Mich.App. *551 592, 600, 407 N.W.2d 47 (1987), this Court held:
[The WPA] provides a full panoply of legal and injunctive remedies including reinstatement, payment of back wages, full reinstatement of fringe benefits and seniority rights, and actual damages, as well as costs including reasonable attorney and witness fees. MCL 15.364; MSA 17.428(4).
Thus, the WPA is recognized to provide for legal relief.[4] We also note that defendants do not dispute that plaintiffs' claims are legal in nature.
Accordingly, we must decide between the two approaches to resolve the issue before us. Mindful that our ultimate task is to interpret this constitutional provision, we conclude that the better test of whether the constitutional right to a jury trial is retained is the nature-of-action approach.
First, our review of relevant cases convinces us that they largely turn on the nature of the action. As discussed above, both the results and the language of the cases supporting the historical analogue are ambiguous regarding the factors on which the right to a jury trial turn. We found no published cases in which a litigant pursuing a legal action and seeking legal relief was found not to have a right to a jury trial. Even among the cases supporting the historical-analogue approach, none of the five cases that held the right to a jury trial was not retained involved traditional legal actions. These courts did not have to squarely assess the validity of the historical-analogue approach, because the actions before them were not legal actions in which the right to a jury trial might have been retained but for the lack of a historical analogue. Accordingly, these cases' support for the historical-analogue approach, is less compelling than if the courts had found no right to a jury trial on the basis of the lack of a historical analogue in a legal action.
The results in all the cases we discussed may be accounted for by the nature-of-action approach. In contrast, the cases supporting the nature-of-action approach do not discuss historical analogues; thus, the results in those cases may not be reasonably read to turn on whether an historical analogue existed. Further, that a particular action was unknown to the common law does not appear determinative of whether a right to a jury trial exists. Some statutory actions unknown to the common law and, indeed, in derogation of the common law are nonetheless triable by jury, e.g., wrongful death cases, M.C.L. 600.2922; M.S.A. 27A.2922, because the nature of the suit is one for damages for personal injuries, which type of action was triable by jury at common law. See Leary v. Fisher, 248 Mich. 574, 227 N.W. 767 (1929). For these reasons, the nature-of-action approach better explains the relevant case law than does the historical-analogue approach.
Second, commentary on the court rule addressing the constitutional right to a jury trial better supports the nature-of-action approach. MCR 2.508(A) states:
The right of trial by jury as declared by the constitution must be preserved to the parties inviolate.
The authors' comment on this rule in 3 Martin, Dean & Webster, Michigan Court Rules Practice, pp. 138-139, states:
[B]oth the constitution and the court rule speak of "retaining" and "preserving" the right to trial by jury, not creating one. The right preserved is that as it existed under common law. Thus to determine whether or not a particular issue or action is entitled to trial by jury, a historical inquiry must be made to determine whether the issue was one which was tried by the law courts or by the chancellor in equity, as of the time when the constitutional guarantee to the right to trial by jury was first adopted....
* * * * * * *552... If all of the issues combined in a single proceeding are of the same nature, all legal or all equitable, one must only identify the true character of the issues to determine if a right to trial by jury exists. Once the character of the issues is determined, a historical inquiry will reveal whether the issues were tried by the law courts or by the chancellor. Only those issues historically tried before the law courts retain the right to trial by jury.
This comment focuses on identifying the nature of the issuesÔÇöi.e. whether they are legal or equitableÔÇöto determine if the right to a jury trial is retained. It speaks of determining whether the issues were ones tried by "the law courts" or "by the chancellor in equity." This comment accordingly appears to support the nature-of-action approach.
Third, we note the interpretation of jury trial provisions of the United States Constitution and the constitutions of other states that similarly provide that the right to a jury trial shall "remain" or "be preserved." In Granfinanciera, S.A. v. Nordberg, supra at 41-42, 109 S.Ct. at 2790, the United States Supreme Court held:
Although "the thrust of the [Seventh] Amendment was to preserve the right to jury trial as it existed in 1791," the Seventh Amendment also applies to actions brought to enforce statutory rights that are analogous to common-law causes of action ordinarily decided in English law courts in the late 18th century, as opposed to those customarily heard by courts of equity or admiralty.
The form of our analysis is familiar. "First, we compare the statutory action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity. Second, we examine the remedy sought and determine whether it is legal or equitable in nature." The second stage of this analysis is more important than the first. [Citations omitted.]
The Granfinanciera Court also stated:
In Parsons v Bedford, [28 US (3 Pet) 433; 7 L. Ed. 732 (1830) ] (emphasis added), we contrasted suits at law with "those where equitable rights alone were recognized" in holding that the Seventh Amendment right to a jury trial applies to all but the latter actions. [Id. at 43-44, 109 S.Ct. at 2791.]
State constitutions "generally" contain express guaranties of the right to a jury trial; such provisions guarantee "the right to a jury trial in those cases in which such a right existed at common law or by statute at the time of the adoption of the state constitution." 47 Am.Jur.2d, Jury, 6, p. 717. Anno: Right to jury trial in action under state civil rights law, 12 ALR5th 508, 520 states:
The general rule under both the Seventh Amendment and the state constitutional provisions is that the right to jury trial protected thereby has substantially the same meaning, extent, and application that it had at common law and at the time of the adoption of those provisions, although the right applies not only to those causes of action that existed at common law or at the time the constitutional provisions were adopted, but also to substantially similar causes of action which would have been subject to the jury trial right if they had been known at that time.
The ALR annotation does not mention any minority rule among the jury trial provisions in state constitutions. Specifically, it does not mention any requirement of an inquiry whether there was a preconstitutional analogue to the action at issue. Rather, the relevant question under the general rule set forth in the annotation is whether there would have been a right to a jury trial if the cause of action at issue had been recognized before adoption of the constitution. Thus, this interpretation of similar jury trial provisions in the United States Constitution and other state constitutions appears to support the nature-of-action approach rather than the historical-analogue approach.
Fourth, we believe that the Legislature that drafted the WPA in 1980 would have reasonably expected that the right to a jury trial would be retained in an action under the WPA seeking legal remedies. The WPA bears substantial similarities to Michigan civil rights statutes under which the right to a jury trial is retained. Actions under the *553 WPA are analyzed using the "shifting burdens" framework utilized in retaliatory discharge actions under the CRA. See Hopkins v. Midland, supra at 378, 404 N.W.2d 744. We also note that the WPA is similar to Michigan's civil rights statutes in that all three acts may be broadly characterized as civil rights acts, all three appear directed at protecting employees from wrongful treatment by employers, and actions brought under each of the three acts involve similar factual questions of employer motivation. As discussed above, this Court has determined that the constitutional right to a jury trial is retained in actions under the CRA and the HCRA. See King, supra; Smith, supra; Barbour, supra.[5] In the context of the similarity of the WPA to these acts, we believe that the 1980 Legislature likely expected that the right to a jury trial would be retained under the WPA as it is under the CRA and the HCRA.
Other aspects of the present cases also suggest that the drafters of the WPA intended that the right to a jury trial would obtain under it. Both the historical-analogue approach and the nature-of-action approach recognize the underlying principle that the right to a jury trial is generally retained in legal actions but not in equitable actions. See Colon, supra at 818, 377 N.W.2d 321. In interpreting Const.1963, art. 1, 14, as with the Seventh Amendment, we are to take cognizance of the historical boundaries separating the provinces of judge and jury as reflected in our constitutional tradition. The WPA provides for legal remedies. Hopkins, supra; Tyrna, supra. The right to a jury trial is typically retained in actions seeking legal remedies.
The present actions also raise the type of issues ordinarily raised in legal actions and addressed by juries. Actions under the WPA primarily focus on factual issues such as whether the plaintiff "blew the whistle," whether the defendant was aware that plaintiff did so, and whether the decision to discharge the plaintiff resulted from the plaintiff's "whistle-blowing" or from some other cause. These are the types of ordinary factual questions that typify legal actions tried to juries as opposed to the extraordinary issues that typify equitable actions in which judges act as factfinders, e.g., suits for an accounting, Second Michigan Cooperative Housing Ass'n v. First Michigan Cooperative Housing Ass'n, 358 Mich. 252, 256, 99 N.W.2d 665 (1959). These aspects of the present cases also indicate that the drafters of the WPA would have reasonably expected that the right to a jury trial would be retained in actions under the WPA.
Fifth, we consider the two approaches from a constitutional policy perspective. Const.1963, art. 1, 14 states that the "right of trial by jury shall remain." It thereby retains intact the right to a jury trial as it existed in 1963. The historical-analogue approach addresses this aspect of the constitutional provision by requiring the existence of a pre-1963 common-law analogue for a right to a jury trial to be retained. The nature-of-action approach addresses this aspect by requiring that the nature of an action be legal for a right to a jury trial to attach, because legal causes of action generally were afforded a right to a jury trial at the time the 1963 constitution was adopted.
We discern relatively little persuasive rationale for the requirement of the historical-analogue approach that a pre-1963 common-law analogue be found to exist. The law develops as issues arise and are litigated. The interpretation of Const.1963, art. 1, 14 required by the application of the historical-analogue approach somewhat arbitrarily limits the right to a jury trial to causes of action similar to those recognized at the time of the adoption of the 1963 constitution. Despite high regard for the value of tradition, we are unaware of any particular significance of 1963 to the development of the common law that would justify using that year to circumscribe the causes of action that retain a right to a jury trial. We do not believe that the framers of the 1963 constitution intended to limit the right to a jury trial on this basis. In contrast, the interpretation of the constitutional *554 provision required by the application of the nature-of-action approach, which focuses on whether an action is legal or equitable, preserves a more general and rationally conceived rule of law for determining whether the right to a jury trial is retained. We therefore believe that consideration of the nature of the action provides a more compelling rationale for determining the scope of this important constitutional right than a determination whether the common law had addressed an analogous issue by a particular date.
Finally, we note that we analyze the issue before us in the historical context of the constitutional right to a trial by jury. In The Federalist No. 83, Alexander Hamilton considered the "essentiality" to liberty of trial by jury in civil cases. One of the leading judicial scholars of the nineteenth century described the Seventh Amendment, the federal expression of the that right, as assuring the right to a jury trial to the "fullest latitudes of common law." Story, Commentaries on the Constitution (abridged ed), 919, p. 654. And in McRae v. Grand Rapids, L. & D.R. Co., 93 Mich. 399, 401, 53 N.W. 561 (1892), Michigan Supreme Court Justice Long stated:
[T]he right of trial by a jury of 12 men became fixed centuries ago in the common law, and unanimity of verdict became requisite, until, wherever the Anglo-Saxon tongue was spoken, and in many other countries, this right came to be regarded as the great bulwark of the liberty of the citizen.
Faced with uncertain constitutional language and an irreconcilable split of authority interpreting the constitutional provision, the argument of constitutional tradition also persuades us to apply the approach that extends this constitutional right to a greater rather than lesser range of civil actions.
For these reasons, we believe that the appropriate test for determining whether a right to a jury trial "remains" is to examine the nature of the action. Specifically, we hold that if the WPA had been in existence at the time of the adoption of the 1963 constitution, plaintiffs' actions here would properly have been denominated as legal actions, which retain the right to a jury trial.
We now address the effect, if any, on the right to a jury trial under the WPA of the fact that state actors are defendants here. The defendant universities are state institutions. Const.1963, art. 8, 5; Fox v. Bd. of Regents of the Univ. of Michigan, 375 Mich. 238, 241, 134 N.W.2d 146 (1965). Ordinarily, such state actors may be sued only in the Court of Claims. M.C.L. 600.6419; M.S.A. 27A.6419; Fox, supra. Cases in the Court of Claims are tried by the court, not by a jury. M.C.L. 600.6443; M.S.A. 27A.6443 and M.C.L. 600.6421; M.S.A. 27A.6421. However, the WPA, which defines "employer" to include state entities, 1(b) of the WPA, M.C.L. 15.361(b); M.S.A. 17.428(1)(b), specifies that the actions thereunder may be filed in the circuit court. Section 3(2) of the WPA, M.C.L. 15.363(2); M.S.A. 17.428(3)(2). Thus, in the WPA, the Legislature waived the right of state entities to be sued only in the Court of Claims. The issue before us therefore is whether a state entity sued in the circuit court is subject to trial by jury.
This Court addressed a similar issue in Barbour v. Dep't of Social Services, supra at 275, 431 N.W.2d 482, with respect to the CRA and the HCRA. Like the WPA, these acts include state actors as potential defendants and provide that actions may be filed in the circuit court. See 103 and 801 of the CRA, M.C.L. 37.2103, 37.2801; M.S.A. 3.548(103), 3.548(801) and 103 and 606 of the HCRA, M.C.L. 37.1103, 37.1606; M.S.A. 3.550(103), 3.550(606). The Barbour Court noted that the CRA and the HCRA "impose the same duties upon state agencies as upon private employers" and direct that actions be filed in the circuit court. Id. at 278, 431 N.W.2d 482. It stated:
In most types of actions, the state cannot be tried in front of a jury because the Legislature requires those actions to be tried in the Court of Claims, where cases are heard without a jury....
... Had the Legislature intended all civil rights claims against the state to be tried without a jury, it would seem that it would have conferred jurisdiction over *555 such suits upon the Court of Claims, not the circuit court. [Id. at 280, 431 N.W.2d 482.]
The Barbour Court then considered the defendants' contention that no right to a jury trial exists in suits against the state. Id. It rejected that contention on the basis that it would make the right to a jury trial turn on "the character of a party, not the character of the action." Id. at 281, 431 N.W.2d 482.
The state's sovereign immunity may be waived "by an express statutory enactment or by necessary inference from a statute." Benson v. State Hosp. Comm., 316 Mich. 66, 73, 25 N.W.2d 112 (1946), see also McNair v. State Hwy. Dep't, 305 Mich. 181, 187, 9 N.W.2d 52 (1943); Mead v. Michigan Public Service Comm., 303 Mich. 168, 173, 5 N.W.2d 740 (1942).[6] The WPA does not expressly waive any immunity of state entities from a trial by jury. The issue is whether such a waiver is a "necessary inference" from the language of the WPA.
We recognize the difficulty of precisely defining "necessary inference." When one deals with anything short of an express statement, there is always the possibility of alternative readings. An attempt to remedy this ambiguity by defining "necessary inference" as "the only conceivable inference" would make "necessary inference" indistinguishable from "express statutory enactment." But the Mead Court stated that the state may waive its sovereign immunity by "express statutory enactment" or by "necessary inference." Accordingly, we believe that a necessary inference is something less than an express statutory enactment and that a necessary inference requires something less than absolute certainty that it is the only conceivable inference. Whether an inference is a necessary inference sufficient to waive the state's immunity from a trial by jury or a mere possible inference insufficient for this purpose appears to be a matter of degree.
In construing a statute, we must give meaning to all the words used. Southfield Western, Inc. v. Southfield, 206 Mich.App. 334, 338, 520 N.W.2d 721 (1994). Accordingly, in interpreting the WPA, we must give meaning to 3(2) of the WPA, which states that actions thereunder may be filed in the circuit court. The circuit court has original jurisdiction in all matters not prohibited by law. Const.1963, art. 6, 13. Generally, the circuit court is prohibited by law from having jurisdiction over suits against the state by the Court of Claims act. M.C.L. 600.6419; M.S.A. 27A.6419. Thus, in the absence of 3(2), WPA actions against private defendants would be tried in the circuit court, while WPA actions against public defendants would be tried in the Court of Claims. In the context of these underlying principles, 3(2) appears specifically directed to actions against state defendants.
We posit three possible rationales for the inclusion of 3(2) in the WPA. First, this provision may indicate that state entities, like private entities, are subject to jury trials. We reach this inference on the basis of several provisions of the WPA. First, the drafters of the WPA specifically included state entities among potential defendants as "employers." Section 1. Second, despite this express inclusion, the drafters also explicitly provided that actions thereunder be filed in the circuit court. Section 3(2). The drafters could have ensured that WPA actions against state entities be tried to the court by not providing that WPA actions be filed in the circuit court. (In the absence of this provision, WPA actions against state entities would have been subject to the exclusive jurisdiction of the Court of Claims, where all cases are tried by the court.) Circuit court actions, unlike Court of Claims actions, are *556 subject to the right to a trial by jury depending on the nature of the action. As determined above, the right to a jury trial is retained under the WPA. By subjecting state entities sued under the WPA to circuit court jurisdiction, the Legislature may have impliedly waived any immunity of state entities from being tried by a jury.[7]
Second, 3(2) may indicate a more general premise that state and private defendants are to be treated equally under the WPA. Section 1 includes both state entities and private employers among potential defendants. Legislative analysis of the bills that became the WPA indicates indistinguishable treatment of public and private employers and that the purpose of the WPA is to protect both public and private employees. House Legislative Analysis, HBs 5088 & 5089, April 17, 1980. Indeed, it appears that a principal purpose of the WPA was to bring public employees into equality of coverage with private employees. Id. This focus on creating an equal playing field for public and private employers under the WPA in order to protect whistle-blowing public and private employees would also support an inference that state entities be subject to jury trials thereunder as private employers are.
Third, the purpose of this provision may be simply to allow plaintiffs the convenience of suing state entities in the circuit court rather than the Court of Claims. But such convenience concerns always exist when a party sues a state entity. We therefore find this explanation the least compelling of the three posited.
As stated above, we are obligated to construe the WPA in a manner that gives some meaning to 3(2). Among the three rationales posited, we find the first two more compelling than the third. We read this provision to subject state entities to jury trial. We believe that this reading is clearly the most reasonable among those we were able to articulate. In the context of the WPA's provisions treating state and private employers equally and subjecting WPA claims against state entities to circuit court jurisdiction, we infer that the drafters waived with respect to WPA liability any immunity of such entities that would have prevented them from being tried by a jury. Additionally, we note that defendants here did not even raise the issue of sovereign immunity in their motions to strike the jury demand or on appeal.[8] Accordingly, we hold that the status of the defendant universities as state entities does not affect our conclusion that parties bringing actions under the WPA retain the right to a jury trial.
For these reasons, we reverse in Docket No. 168358 and affirm in Docket No. 170339.
J.D. PAYANT, J., concurs.
O'CONNELL, Judge (concurring in part and dissenting in part).
I respectfully dissent. I agree with the majority that because plaintiffs seek legal as opposed to equitable relief under the Whistleblowers' Protection Act (WPA), M.C.L. 15.361 et seq.; M.S.A. 17.428(1) et seq., they would normally be entitled to present their cases to juries. Const.1963, art. 1, 14; Abner A. Wolf, Inc. v. Walch, 385 Mich. 253, 258-263, 188 N.W.2d 544 (1971). I also agree that state entities, such as the defendant universities, may ordinarily be sued only in the Court of Claims, M.C.L. 600.6419; M.S.A. 27A.6419, and that such trials are before the bench rather than a jury. M.C.L. 600.6443; M.S.A. 27A.6443. However, the majority infers that because certain provisions of the WPA could be construed as indicative of a Legislative intent to waive the sovereign right to be subjected only to trial before the bench, this *557 right has been waived. With this inference, I disagree.
The state's right as sovereign to be tried only by the court, as opposed to a jury, may be waived only by express statutory enactment or by necessary inference from a statute. Mead v. Michigan Public Service Comm., 303 Mich. 168, 173, 5 N.W.2d 740 (1942); McNair v. State Hwy. Dep't, 305 Mich. 181, 187, 9 N.W.2d 52 (1943). The WPA admits no express abrogation of this right, and the majority does not take this position. Rather, the majority concludes that the Legislature impliedly waived the immunity of state entities from being tried by a jury.
The case law is clear that such immunity may not be impliedly waived unless such an inference is necessary to the construction of a statute. Mead, supra; McNair, supra. Because the Michigan courts have not yet had occasion to address this precise issue, I have looked to analogous federal precedent, an approach expressly endorsed by the majority, ante, pp. 20-21. As stated in Lehman v. Nakshian, 453 U.S. 156, 160-161, 101 S. Ct. 2698, 2701-2702, 69 L. Ed. 2d 548 (1981):
[I]f Congress waives the Government's immunity from suit, ... the plaintiff has a right to a trial by jury only where that right is one of the "terms of [the Government's] consent to be sued." [United States v. Testan, 424 U.S. 392, 399; 96 SCt 948; 47 LEd2d 114 (1976) ]. Like a waiver of immunity itself, which must be "unequivocally expressed," ... "this Court has long decided that limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied." Soriano v United States, 352 U.S. 270, 276; 77 SCt 269 [273]; 1 LEd2d 306 (1957).
The language could be written in no more absolute termsÔÇöany waiver of the right to a bench trial must be unequivocally expressed.
In the present case, the majority's inference that the Legislature has impliedly waived the right to be immunized from trial by jury is not a necessary inference, and, therefore, is improper. The majority advances several possible justifications for its conclusion that the WPA reflects an implied waiver. First, the majority states that the Legislature "specifically included state entities among potential defendants as `employers.' Section 1 [M.C.L. 15.361; M.S.A. 17.428(1) ]." Ante, p. 20. It is argued that this reflects a legislative intent to treat the state and private employers "equally." However, defining "employer" so as to encompass the state is necessary to allow individuals to bring suit against the state, else they would likely be prohibited by the broad grant of immunity generally afforded the state. M.C.L. 691.1401 et seq.; M.S.A. 3.996(101) et seq. This action necessarily reflects only the intent to subject the state to suit for violations of the WPA. It does not necessarily reflect a desire to treat the state and private employers equally. Because the majority's inference is not a necessary one, Mead, supra; McNair, supra, it may not properly be considered. Lehman, supra.
Second, the majority states that the Legislature's act of allowing suit to be brought against the state in the circuit court evinces an intent to subject the state to trial by jury. Again, it is not necessary to draw such an inference; the Legislature's action could easily be construed as a method to increase the convenience of plaintiffs by allowing them to bring suit in any county, rather than in only Ingham County, where the Court of Claims sits. Analogous federal decisions confirm this interpretation. See, e.g., Thornell v. Chesapeake & O.R. Co., 166 F. Supp. 61 (W.D.Mich.1958). The majority discounts this interpretation by stating that "such convenience concerns always exist when a party sues a state entity." This may be true, but the truth of this assertion does not elevate the majority's speculation to a necessary inference. The words of our Legislature fall far short of an "unequivocal expression" of an intent to waive the right of state entities to be tried by the court.
The majority proffers Barbour v. Dep't of Social Services, 172 Mich.App. 275, 431 N.W.2d 482 (1988), as putative support for its conclusion. However, the majority neither endorses nor follows the aberrant reasoning of Barbour, which relies on the concept of implied waiver expressly rejected by the United States Supreme Court. Lehman, supra. *558 Therefore, the reference to Barbour being dicta, I do not address it.
Finally, I would clarify that, contrary to the implication of the majority, I have not assumed that "necessary inference" means "only conceivable inference." Obviously, "necessary" means essential, not exclusive. The majority has set up something of a straw man in discussing this topic; I have not raised this argument and neither have the parties.
In sum, the inferences on which the majority relies are speculative. While the majority's inferences are, beyond question, reasonable, the appropriate standard is not whether one can reasonably infer, but whether one must necessarily infer. The majority's inferences are simply not "necessary" inferences. Therefore, in accordance with federal and Michigan precedent, I would conclude that there is no right to a trial by jury under the WPA against a state defendant in the absence of an express statutory abrogation of that right or an abrogation arising by way of necessary implication. Because neither exists in the present case, I would hold that the state entities retain their right to be tried before the bench.
Accordingly, in Docket No. 168358, I would reverse the decision of the trial court with respect to defendant Band only, who is sued individually, and who is subject to defend this action before a jury. I would affirm the denial of trial by jury with respect to the remaining defendants in Docket No. 168358. In Docket No. 170339, because the sole defendant is a state university, I would reverse.
NOTES
[*] V. Robert Payant, 41st Judicial Circuit Judge, sitting on Court of Appeals by assignment pursuant to Const.1963, Art. 6, Sec. 23, as amended 1968.
[1] M.C.L. 15.364: M.S.A. 17.428(4) discusses appropriate remedies that "[a] court, in rendering a judgment" may award. However, this provision does not indicate whether the court judgment is to follow a jury trial or a bench trial.
[2] Const.1963, art. 1, 14 is a continuation of Const.1908, art. 2, 13, Const.1850, art. 6, 27, and Const.1835, art. 1, 9, derived in turn from the Northwest Ordinance of 1787, Art. II.
[3] We note that none of the cases we found discussing the constitutional right to a jury trial acknowledge the existence of two distinct approaches to determining when this right is retained. The two approaches may not have developed as separate schools but may be the result of misinterpretation or misapplication of a single approach. In any event, a reasonable interpreter of the relevant case law could find two distinct approaches to determining when the right to a jury trial is retained, as demonstrated by the divergent results reached by the trial courts in the present cases.
[4] We note that plaintiffs here seek money damages for the alleged violations of the WPA. Actions seeking money damages are generally denominated as legal actions entitled to a jury trial. See B & M Die Co. v. Ford Motor Co., 167 Mich.App. 176, 184, 421 N.W.2d 620 (1988). However, we recognize that the mere fact that damages are sought is not determinative of the legal or equitable nature of the action, because damages may be recovered in purely equitable proceedings. Grigg v. Hanna, 283 Mich. 443, 278 N.W. 125 (1938); Latimer v. Piper, 261 Mich. 123, 246 N.W. 65 (1933).
[5] While these cases were decided after the WPA was drafted, we believe that they were correctly decided and that the 1980 Legislature would have reasonably expected the right to a jury trial to be retained in actions under the CRA and the HCRA.
[6] We are aware of United States Supreme Court precedent indicating that the Seventh Amendment right to a jury trial does not apply in actions against the federal government and that Congress must clearly and unequivocally grant a right to a trial by jury against the federal government to depart from this usual practice. See Lehman v. Nakshian, 453 U.S. 156, 160-162; 101 S. Ct. 2698; 69 L. Ed. 2d 548 (1981).
Also, in Michigan Council of Trout Unlimited v. Dep't of Military Affairs, 213 Mich.App. 203, 215; 539 NW2d 745 (1995), this Court held that "no clear statutory mandate" waived the sovereign immunity of federal agents under the Michigan Freedom of Information Act.
We note that neither of these standards state that the waiver of immunity from trial by jury must be express.
[7] We note that 3(1) of the WPA states that actions may be brought "for appropriate injunctive relief, or actual damages, or both." The inclusion of this indication that both equitable and legal relief are available in the same section in which the circuit court's jurisdiction is set forth tends, in our judgment, to suggest that the drafters had the right to a jury trial in mind when providing for circuit court jurisdiction.
[8] In fact, in Docket No. 168358, Michigan State University conceded in its motion to strike plaintiff's jury demand that, "[w]ere plaintiff Anzaldua asserting a state statutory civil rights claim, her claim to a jury trial would be unassailable."