Yes, You Do Have the Right to a Jury Trial
The Constitution says you have the right to a jury trial. At least in its in-house court, the Securities and Exchange Commission argued against that right. The Supreme Court decided in the Constitution’s favor in its June 27 ruling in SEC v. Jarkesy.
Critics argue that Jarkesy “could render a simply astonishing array of federal laws unenforceable” and “could kneecap enforcement by the FCC, the FTC, the NLRB, the Department of Labor, and more.”
Their fears are overblown. In this case, a man named George Jarkesy still stands accused of securities fraud. The Supreme Court did not rule on his guilt or innocence. It ruled he has the right to a jury trial.
“The agency is free to pursue all of its charges against Mr. Jarkesy,” Justice Neil Gorsuch underscored in his concurring opinion. “And it is free to pursue them exactly as it had always done until 2010: In a court, before a judge, and with a jury.”
A big problem faced by Jarkesy and countless other defendants is that his jury-less legal journey did not begin in a regular court.
More than 55 executive branch agencies, including the SEC, run their own in-house court systems. These are called administrative law courts, or ALCs for short. They are separate from the judicial branch established by Article III of the Constitution. Perhaps unsurprisingly, defendants have fewer due-process rights in administrative law courts than in Article III courts.
In these ALCs, the government wins about 90 percent of the time, compared to about 60 percent in regular courts. The agencies choose the judges and pay their salaries. The agencies set the rules for procedure and evidence.
In some ALCs, prosecutors are afforded special access to evidence that they can block the accused from seeing. Some agencies, including the SEC, refuse to allow jury trials, undermining the Seventh Amendment.
The SEC has an especially galling lifetime gag order policy under which defendants are not allowed to discuss their cases forever. This policy obscures many administrative abuses from public knowledge, with no reasonable remedy.
That is what Jarkesy was up against. He may well be guilty. If he is, a fair jury trial will decide and punish him. If the government has a strong case, it does not need to tilt the field in its favor.
Some agencies are even worse than the SEC. When the Federal Trade Commission’s 25-year ALC winning streak was recently snapped, FTC Chair Lina Khan and her fellow commissioners overruled their judge and handed themselves the victory anyway. They also passed a rule that reduced their judge decisions to non-binding “recommendations.”
The Supreme Court left the larger ALC apparatus intact in its Jarkesy decision. The court affirmed only the right to a jury trial, leaving other constitutional questions undecided. Addressing other ALC abuses will have to await future cases (or an act of Congress). The FTC, Justice Department or National Labor Relations Board may face the court next.
Jarkesy is a narrow victory, but it is still important. The right to a jury trial is sacred. The Seventh Amendment does not lose its force just because a case is argued in one type of court instead of another.
There is more to do, however. A guiding philosophy behind America’s government is to never put too much power in one place. In Jarkesy’s case, an executive branch agency served as prosecutor and judge. That is ripe for abuse.
The best solution is to remove ALC’s from executive agencies and put them in the judicial branch, where they belong. We outline several ways to do this in a recent paper.
Agencies might complain they need more resources to argue lengthy jury trials in a proper court. This more often applies to defendants who do not have multi-million dollar budgets authorized by Congress.
Only wealthy defendants can afford to pay years’ worth of legal bills as their case winds first through an ALC and then on appeal through the regular court system. Regular people have no choice but to give up in the face of insurmountable legal fees and administrative pressure.
Read the full article at Inside Sources.