1975, August, Pg. 1513. Is the Civil Jury Trial in Danger?.

• Author: by Matthew B. Wills

4 Colo.Law. 1513

Colorado Lawyer

1975.

1975, August, Pg. 1513.

Is the Civil Jury Trial in Danger?

1513Vol. 4, No. 8, Pg. 1513Is the Civil Jury Trial in Danger?by Matthew B. WillsJurors, like judges, each bring their own prejudices, biases, and psychological traits to the courtroom, but one juror alone does not decide a case.(fn1)

On January 18, 1876, the Colorado Constitutional Convention resolved itself into a committee of the whole to consider the report of the committee on a bill of rights. Section 25 of the proposed bill of rights stated, "The right of trial by jury shall remain inviolate...."(fn2) Before the final adoption of a bill of rights, this section was amended by inserting after the word "inviolate" the words "in criminal cases."(fn3) There can be little doubt that the original version of § 25 would have guaranteed the right of jury trials in all cases except those in equity. This amendment to the bill of rights represents the single most important event in Colorado legal history on the right of trial by jury in a civil case. Within five years the Colorado Supreme Court verified the limited scope of this guarantee by holding that the state constitution imposed no restrictions upon the legislature in respect to the trial of civil cases.(fn4) This case has never been overruled, nor is it likely to be unless the constitution is amended. Prior to April 6, 1941, when the Colorado Rules of Civil Procedure first became effective, a jury trial in a civil law suit was a creature of statute.(fn5)

Subsequently, the Colorado Rules of Civil Procedure have been the primary authority for a civil jury trial.(fn6) The statutory provisions on civil jury trials have never been repealed. In order to avoid any conflict between the statutes and the anticipated rules of civil procedure, the legislature in 1939 passed a bill containing the following provisions:(fn7) Such rules [The Colorado Rules of Civil Procedure] shall take effect three months after their promulgation, and thereafter all laws in conflict therewith shall be of no force and effect.

It remains part of the present statutes of Colorado.(fn8) The intriguing question of whether a jury trial is a procedural right or a substantive right has never been answered. If it is a procedural right only, under the Colorado constitution the state supreme court would seem to have the sole power to abolish civil jury trials.(fn9)

Despite this possibility, there are strong indications that the legislature believes that it possesses ample constitutional power to legislate concerning this right.

Fewer Jury TrialsThe past few years have seen a gradual erosion of the right to jury trials in Colorado. In 1971 the Uniform Dissolution of Marriage Act eliminated jury trials in all actions for dissolution of a marriage and for a legal separation.(fn10) The 1974 Colorado Probate Code has limited jury trials to a formal testacy proceeding(fn11) and to any proceeding where a party has a constitutional right to trial by jury.(fn12) In view of

1514the Colorado Supreme Court's decision that there is no constitutional right to a jury trial in probate proceedings,(fn13) this statute seems somewhat misleading. Regardless of the elimination of juries on contested claims before the probate court, a claimant can probably still bring a civil action against a decedent's estate and obtain a jury trial in light of the statutory provision that a personal representative has the same standing to be sued in the courts of this state as the decedent had immediately prior to his death.(fn14) In contrast the representative of an estate is not entitled to a jury trial unless the claimant files a separate action.

What was a gradual erosion may turn into a landslide. In the 50th General Assembly a bill was introduced which would abolish jury trials in all contract cases and...