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Where Were You In 1818? or How To Obtain (Or Defeat) A Claim For A Jury Trial, published in "The Franchise Lawyer"

Published by the American Bar Association and the Forum on Franchising (Volume 4 Number 4)

Spring 2001

Authors: Paul D. Sanson

One of the more curious procedures litigators and judges engage in is that of interpreting legislative history when analyzing a statute. Even though one side (or sometimes both) will argue that such an analysis is unnecessary because the plain language of the statute is unambiguous, courts nevertheless will often proceed at least to consider the statute's legislative history. As we all have experienced, the result of such an analysis is second guessing at best, usually long after the fact, based on incomplete records that often contain uncertain and/or contradictory expressions of legislative intent.

However inexact that process may be, it is pure science compared to how Connecticut judges are required to decide the far more important issue of whether a particular statute confers on the parties a constitutional right to a jury trial. This issue faced the Connecticut Superior Court recently with respect to the Connecticut Franchise Act C.G.S. § 42-133e et seq. (the "CFA"), Hartford Electric Supply Company, Inc. v. Allen-Bradley Company, Inc., 2000 Conn. Super. LEXIS 3468 (December 18, 2000) ("Hartford Electric"). Although the CFA has been in effect since 1972, this was the first case to rule on the fundamental question of whether the franchisee had a right to a jury trial. How the court analyzed the issue is instructive and may be useful in considering how courts may rule in other states, which have similar statutes.

The analytical framework set out by the Connecticut Supreme Court is as clear as it is difficult to apply. The Hartford Electric court accurately stated its charge:

In making that determination [of whether the CFA gives rise to a right to a jury trial], the court must "ascertain whether the action being tried is similar in nature to an action that could have been tried to a jury in 1818 when the state constitution was adopted. This test requires an inquiry as to whether the course [sic] of action has roots in the common law, and if so, whether the remedy involved was in law or in equity." Skinner v. Angliker, 211 Conn. 370, 376 (1989). "Consequently, statutory actions established since the adoption of the Constitution of 1818 ordinarily fall outside the scope of the provision, 'unless, perhaps, the new remedy constitutes a "modification of existing remedies, so vital as to unduly limit and violate the right of trial by jury."' [citations omitted] Bishop v. Kelly, 206 Conn. 608, 618 (1988).

Thus, all a court need do is determine the state of the common law in Connecticut in 1818 and, in particular, whether the action being brought under the CFA is "similar in nature" to any action "that could have been tried to a jury."

As a preliminary matter, the Hartford Electric court noted that the Connecticut Supreme Court had concluded on prior occasions that there was no right to a trial by jury under the Connecticut Unfair Trade Practices Act (C.G.S. § 42-110a et seq.) or under the Connecticut motor vehicle Lemon Law II (C.G.S. § 42-18 et seq.). In both instances, the Supreme Court determined that the statute did not bear substantial similarity to a common law action that was triable to a jury prior to 1818 and that the remedies provided for were more equitable than legal in nature.

The court then turned to the Connecticut Franchise Act, which provides at 42-133f(a):

No franchisor shall, directly, or through any officer, agent or employee, terminate, cancel or fail to renew a franchise, except for good cause which shall include, but not be limited to the franchisee's refusal or failure to comply substantially with any material and reasonable obligation of the franchise agreement . . .

Section 42-133(g) goes on to provide that a franchisee may bring an action for injunctive relief and damages and, if successful, shall be entitled to reasonable attorney's fees. The trial court pointed out that the CFA abridged many of the common law rights a franchisor would ordinarily have as a party to a contract. For example, a franchisor cannot terminate, or even fail to renew, an agreement except for good cause, and good cause does not even include a simple breach of contract. In addition, the burden of proof is on the franchisor to show that the franchisee failed to comply substantially with a material or reasonable obligation or that the franchisor otherwise had good cause for termination.

While the court was undoubtedly correct in concluding that these are substantial reductions in what are generally accepted as traditional common law rights of a party, and in ruling there is no right to a jury trial under the CFA, there is understandably little analysis or description in current case law of the state of affairs in 1818. Thus, the door still may be open for enterprising advocates in Connecticut or elsewhere to reach back in time for a more detailed comparison of modern day franchising with post-Colonial law and commerce.

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