Contact us with your California corporate & securities law questions (949) 353-6347 or Contact us here

Why The Right To A Jury Trial May Depend On The Year

Yesterday's post discussed the Court of Appeal's holding in  Nationwide Biweekly Administration, Inc. v. Superior Court, 2018 Cal. App. LEXIS 541, that a defendant in a civil proceeding by the Department of Business Oversight for statutory penalties is entitled to a jury trial on the question of liability.  If liability is found, then the amount of damages may be determined by the court in its discretion.  In the course of analyzing federal and state precedent, the Court of Appeal noted:

"The only substantive variance between the federal and state civil jury trial analyses that we can see is that the federal analysis looks to the common law as of 1791, when the Seventh Amendment was adopted, while California's analysis looks to the common law as of 1850, when the California Constitution was adopted."

I have checked to see whether there any substantial change in the right to a jury between 1791 and 1850.  However, it does seem somewhat arbitrary that so fundamental a right would depend on the state of the law more than two centuries ago.  

It should be noted that the U.S. Constitution actually includes two rights to a jury.   Article III, Section 3 guaranties the right in trials of all crimes except impeachment.  Thus, the Constitution as originally adopted did not guaranty the right to a jury trial in civil cases.  This right was added as the Seventh Amendment. 

Under the California Constitution, the content of the right varies depending on whether the case is civil or criminal.  Thus, Article I, Section 16 provides:

  • Unanimity is not required in a civil cause - three-fourths of the jury may render a verdict. 
  • In a criminal cause, a jury may be waived by the consent of both parties expressed in open court by the defendant and the defendant’s counsel while in a civil cause, a jury may be waived by the consent of the parties expressed as prescribed by statute.
  • In civil causes, the jury must consist of 12 persons or a lesser number agreed on by the parties in open court. In civil causes other than causes within the appellate jurisdiction of the court of appeal the Legislature may provide that the jury will consist of eight persons or a lesser [sic] number agreed on by the parties in open court.  In criminal actions in which a felony is charged, the jury must consist of 12 persons. In criminal actions in which a misdemeanor is charged, the jury must consist of 12 persons or a lesser [sic] number agreed on by the parties in open court.

SEC ALJs Hold Office Unconstitutionally

Readers of this blog will surely recall this post from three years ago when I posed the question: 

"But if you were hailed before an unconstitutional tribunal with the ostensible authority to fine you and bar you from working, would you want a 'real' court to step in and consider the constitutionality of the proceedings?"

In fact, I had earlier suggested that the SEC's administrative law judges could be challenged on the basis of the "Appointments Clause" of the U.S. Constitution (Art. II, §2, cl. 2).  This morning, the U.S. Supreme Court issued its opinion in Lucia v. SEC, holding that the SEC's ALJs are "inferior officers" subject to the Appointments Clause.  

In closing, I'm reminded of Sir William Blackstone's famous observation:

Every new tribunal, erected for the decision of facts, without the intervention of a jury, (whether composed of justices of the peace, commissioners of the revenue, judges of a court of conscience, or any other standing magistrates) is a step towards establishing aristocracy, the most oppressive of absolute governments.

Commentaries on the Laws of England, Book III, ch. 23.

Share on:

California Constitution


We offer expert advice with the intricacies of California law.

Our years of experience and expertise allow us to help clients navigate the business laws in California.



30172DBAB0084D3A8F39D7AF0A8E79BC.ashx Keith Paul Bishop
Partner at Allen Matkins
(949) 353-6328
 Contact me
Learn More About Keith

JD Supra Readers Choice Top Author 2020



Get the latest news and analysis about California Corporate & Securities law. Subscribe to our newsletter today!

We respect your email privacy


see all