In This Issue

• The Ohio Supreme Court Gives the Silent Juror a Voice
• State Employers Not Immune from Suit by Employees Under FMLA

The Ohio Supreme Court Gives the Silent Juror a Voice

By Stuart W. Harris

Earlier this year, the Ohio Supreme Court assembled the Jury Service Task Force to test various innovative techniques with the goal of making jury service more rewarding for citizens and helping jurors better understand the trial process. Several practices are being tested including allowing jurors to take notes, allowing jurors to submit their own potential questions to witnesses, permitting jurors to have a notebook during trial with key exhibits and instructions, and other innovative procedures.

On June 11, 2003, the Ohio Supreme Court put their imprimatur on one of the techniques. In State v. Fisher, the Supreme Court, in an opinion authored by Chief Justice Moyer with the backing of all of the Justices, explained that Ohio jurors can question witnesses at the discretion of the trial court. Even though this is a criminal case, the endorsement allowing questions from jurors undoubtedly applies in civil cases as well. The Court indicated that the main issue across jurisdictions is "whether — and to what extent — appellate courts should encourage or discourage the practice of allowing jurors to question witnesses."

In reviewing the holdings of other jurisdictions, the Court considered the federal courts first and found that every federal circuit addressing this issue concluded that this was a decision within the discretion of the trial court; however, the endorsement of the practice varied in degree. The vast majority of the state courts have concurred on the issue of discretion and the practice can be traced back to 1895. According to the Ohio Supreme Court, "only five jurisdictions prohibit jurors from questioning witnesses."

The Court indicated that the hallmark of the American trial is the pursuit of truth and jury questioning may resolve juror confusion so "jurors can more effectively fulfill their fundamental role as factfinders." In so doing, the Court juxtaposed the benefits and the concerns associated with the practice. The benefits include drawing attention to unclear evidence, providing lawyers with a better opportunity to comprehend jurors and their thoughts, and increasing juror attentiveness. Additionally, studies suggest that jurors who are allowed to question witnesses are more satisfied with their service and their verdicts. In contrast, according to the Court, four principal dangers inherent in juror questioning include: (1) jurors may submit inadmissible questions, (2) counsel may refrain from objecting to improper questions for fear of offending jurors, (3) juror interruptions may disrupt courtroom decorum, and (4) such questioning may distort juror impartiality.

To minimize the danger of prejudice, however, trial courts that permit juror questioning should (1) require jurors to submit their questions to the court in writing, (2) ensure that jurors do not display or discuss a question with other jurors until the court reads the question to the witness, (3) provide counsel an opportunity to object to each question at sidebar or outside the presence of the jury, (4) instruct jurors that they should not draw adverse inferences from the court's refusal to allow certain questions, and (5) allow counsel to ask follow up questions of the witnesses.

Various studies through the years support the proposition that jurors allowed to question witnesses feel like they properly performed their duty. Jurors stated that they were less concerned about an erroneous or inaccurate verdict because asking questions eradicated their concerns about scarce, deficient, or inadequate information.

In concluding, the Ohio Supreme Court indicated that the practice is best handled at the discretion of the trial judge. The Court explained: "Our nation's profound commitment to trial by jury is founded on competing principles that, in one sense, foster the development of truth and, in another sense, stifle it. Such is the great paradox of the criminal justice system. To balance these principles in the assortment of cases with which a trial court is faced — dissimilar as one case is from another — appellate courts generally defer to the discretion of the trial court, rather than attempting to account for the infinite array of circumstances that may arise with a categorical rule. A less prudent approach would eviscerate that discretion at the first sign of abuse — or, worse yet, at the mere potential for it. Our decision today refrains from adopting such a rule."

In "Jurors Asking Questions: Revolutionary or Evolutionary?" cited by the Ohio Supreme Court and written by an Ohio judge, the issue is given considerable attention, including Ohio Jury Instructions. Currently, Ohio Jury Instructions provides three different instructions for jurors in both civil and criminal cases. According to the author: "The law and lawyers are slow to change. Allowing jurors to ask questions makes jurors feel more like a part of the judiciary, and less like helpless outsiders trying to penetrate a sanctimonious institution. This type of change can only bring us closer to the ultimate goal of our legal system: justice."

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State Employers Not Immune from Suit by Employees Under FMLA

By Jennifer L. Mackanos

State employers take note: you can be sued in federal court for failing to comply with the requirements of the Family and Medical Leave Act (FMLA). In a ruling that surprised even counsel for the plaintiff, the United States Supreme Court held that state workers may sue their employers under the FMLA despite the fact that generally states are immune from suit in federal court.

The FMLA requires all employers with 50 or more employees to provide up to 12 weeks of leave to employees with serious health problems of their own or in order to care for close family members who have such health problems. The leave is mandatory, but whether the leave provided is paid or unpaid is discretionary with the employer.

In Nevada Department of Human Resources v. Hibbs, the Court determined that Congress acted within its constitutional power in taking away a state's 11th Amendment immunity from suit in federal court under the FMLA because the FMLA was reasonably directed at eradicating gender-based discrimination. The Court noted that Congress has the power to combat gender-based discrimination and "pervasive sex-role" stereotyping under Section 5 of the 14th Amendment. More specifically, this section gives Congress the power to enforce the 14th Amendment's substantive rights, including the right to equal protection. The Court stated that "the states' record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits is weighty enough to justify the enactment of prophylactic legislation."

The Court went on to declare that the purpose of the FMLA was to set "a minimum standard of family leave for all eligible employees, irrespective of gender," and that by so doing the FMLA "attacks the formerly state-sanctioned stereotype that only women are responsible for family care giving, thereby reducing employers' incentives to engage in discrimination by basing hiring and promotion decisions on stereotypes."

In the case before the Supreme Court, the Plaintiff, William Hibbs, had worked for the welfare division of the Nevada Department of Human Resources. When his wife became ill, he took leave time to care for her. His employer tried to force him to return to work, and when he refused he was terminated. Upon being terminated, Hibbs sued his employer, claiming that Nevada had violated the Act by failing to properly account for his leave time and thereby effectively denying him the full 12 weeks of leave that he argued a woman would have been granted.

A federal district court ruled that Congress did not have the constitutional power to abrogate state immunity under the 11th Amendment by passing the FMLA, and therefore that Hibbs could not sue Nevada in federal court. The 9th Circuit Court of Appeals reversed this decision, putting the 9th Circuit at odds with other Circuits.

The Supreme Court affirmed the decision of the 9th Circuit, despite its recent trend in cases of holding that Congress exceeded its authority by abrogating state immunity when it passed other legislation related to employment. For example, the Supreme Court has held that states are immune from suit in federal court brought by employees under the Americans with Disabilities Act. Likewise, state employers may not be sued by their employees in federal court under the Age Discrimination in Employment Act. Nevertheless, the Court decided differently this time because the key purpose of the FMLA, according to the Court, was to address gender-based discrimination which existed in many employers' leave policies.

This ruling makes it more important than ever for every state employer to be vigilant about complying with the FMLA. State employers should take immediate steps to ensure that their human resources departments, managers, and supervisors not only clearly understand the requirements of the FMLA, but also unfailingly comply with those requirements. Otherwise they may be faced with defending a cascade of lawsuits in federal court.

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