Chapter § 6.3

• Jurisdiction: Oregon

§ 6.3 CIVIL PROCEEDINGS

Jury-trial rights are in flux in Oregon. Now-retired Justice Jack Landau has written: "Either there is a right to a jury trial, or there is not. Plain and simple." Klutschkowski v. PeaceHealth, 354 Or 150, 195, 311 P3d 461 (2013) (Landau, J., concurring) ("I do not understand how the right to a jury trial can be parsed out into subsidiary rights, one of which requires . . . historical analysis and the other that does not."). Oregon has not achieved plain and simple yet.

Article I, section 17, and Article VII (Amended), section 3, are the primary provisions of the Oregon Constitution that address litigants' civil jury-trial rights. In a nutshell, "Article I, section 17, and Article VII (Amended), section 3, preserve the right to jury trial for claims that are properly categorized as 'civil' or 'at law.'" M.K.F., 352 Or at 426; see also ORCP 50 ("The right of trial by jury as declared by the Oregon Constitution or as given by a statute shall be preserved to the parties inviolate.").

Article I, section 17, is currently dormant as a substantive right, according to a majority of the Oregon Supreme Court in 2016. Under Horton v. Oregon Health & Science University, 359 Or 168, 250, 376 P3d 998 (2016), the Oregon Supreme Court concluded that Article I, section 17, guarantees only "a procedural right" to a jury; it does not confer a substantive right to a jury's factual decision on damages that is supported by the evidence.

Article VII (Amended), section 3, of the Oregon Constitution further protects jury verdicts, having been adopted in 1910.

Several other sections of the Oregon Constitution also involve juries in civil cases. See Article I, section 16 (on judge-jury roles); Article VII (Amended), section 5(7) (allowing three-fourths of a jury to render a verdict in civil cases). They are not detailed in this chapter.

§ 6.3-1 Article I, Section 17

§ 6.3-1(a) History and Text

Article I, section 17, provides in its entirety: "In all civil cases the right of Trial by Jury shall remain inviolate."

Article I, section 17, was adopted in 1857 and has not been changed. Charles Henry Carey ed., The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1857 402 (1926). Article I, section 17, was adopted verbatim from the Indiana Constitution of 1851 (that was based on the Indiana Constitution of 1816, the Northwest Ordinance of 1787, and other state constitutions). W.C. Palmer, The Sources of the Oregon Constitution, 5 Or L Rev 200, 201 (1926); see "Report of the debates and proceedings of the Convention for the revision of the constitution of the state of Indiana" (1850), searchable online at < http://name.umdl.umich.edu/AEW7738.0001.001 >.

There is little reported debate regarding the adoption of Article I, section 17, from the Constitutional Convention. "Apparently, the delegates considered an amendment" but "then rethought the matter." Claudia Burton & Andrew Grade, A Legislative History of the Oregon Constitution of1857—Part I (Articles I & II), 37 Willamette L Rev 469, 528-29 (2001). A newspaper report states that an amendment was suggested: "The right of trial by jury in civil cases shall remain inviolate when jury trial is demanded by either party." Burton & Grade, 37 Willamette L Rev at 529. However, that was not listed in the report, and there is no comment or debate. Burton & Grade, 37 Willamette L Rev at 529.

The reported debate on juries and jury trials involved a different provision—Article I, section 16. That section set the power of judges and juries in civil and criminal cases. See Carey, The Oregon Constitution at 310-15; Merten, 175 Or at 260-63.

§ 6.3-1(b) Jury-Trial Right When the Constitution Was Adopted

Article I, section 17, secures the right to a civil jury trial "to all suitors in courts in all cases in which it was secured to them by the laws and practice of the courts at the time of the adoption of the constitution." Tribou v. Strowbridge, 7 Or 156, 158 (1879) (emphasis added). The justice who wrote Tribou, and the two other justices who concurred in the opinion, were members of the constitutional convention that framed the Oregon Constitution. Stevens v. Myers, 62 Or 372, 399, 415, 126 P 29 (1912) (on rehearing) (McBride, J., dissenting). Justice McBride wrote in Stevens, "If anybody knew what was in the minds of the framers of the constitution when they incorporated into it this valuable bulwark of our liberties, these three men knew." Stevens, 62 Or at 415.

Article I, section 17, also extends the right to trial by jury in cases "of like nature" to the class of cases that had customary jury-trial rights in 1857. State v. 1920 Studebaker Touring Car, 120 Or 254, 263, 251 P 701 (1926).

Article I, section 17, "creates no new right to trial by jury. It simply secures to suitors the right to trial by jury in all cases where that right existed at the time the constitution was adopted." Deane v. Willamette Bridge Railway Co., 22 Or 167, 169, 29 P 440 (1892). "Article I, section 17, is not a source of law." Jensen v. Whitlow, 334 Or 412, 422, 51 P3d 599 (2002).

§ 6.3-1(c) Two Constitutional Provisions from Different Eras

In determining whether a claim allows for a jury trial, Article I, section 17, often is read with Article VII (Amended), section 3, of the Oregon Constitution, which provides in part: "In actions at law, where the value in controversy shall exceed $750, the right of trial by jury shall be preserved." See McDowell Welding & Pipefitting, Inc. v. United States Gypsum Co., 345 Or 272, 279, 193 P3d 9 (2008) (reading the two provisions together); see also M.K.F., 352 Or at 408 n 5.

§ 6.3-2 Article VII (Amended), Section 3

§ 6.3-2(a) History and Text

In 1910, Oregon voters substantially amended Article VII of the Oregon Constitution. Article VII (Amended), section 3, of the Oregon Constitution was enacted 53 years after Oregon's Constitution of 1857, by voters with a voters' pamphlet guiding them. See Parrott v. Carr Chevrolet, Inc., 331 Or 537, 552-53, 17 P3d 473 (2001); Tenold v. Weyerhaeuser Co., 127 Or App 511, 521-24, 873 P2d 413 (1994), rev dismissed, 321 Or 560 (1995), questioned by Honda Motor Co. v. Oberg, 512 US 415, 428, 114 S Ct 2331, 129 L Ed 2d 336 (1994); and Van Lom v. Schneiderman, 187 Or 89, 112-13, 210 P2d 461 (1949), overruled in part by Honda Motor Co., 512 US at 426-29, on that 1910 change to the state constitution.

Section 3 contains two jury rights. First, "[i]n actions at law, where the value in controversy shall exceed $750, the right of trial by jury shall be preserved." Second, "no fact tried by a jury shall be otherwise re-examined in any court of this state" unless there is no evidence to support the verdict.

As originally enacted, this provision required more than $20 to be at issue to have a civil jury-trial right. In 1974, that sum was increased to $200. Oregon HJR 71 (1973). In 1996, it increased to $750. Oregon HJR 47 (1995). See Carey v. Lincoln Loan Co., 342 Or 530, 539, 157 P3d 775 (2007).

§ 6.3-2(b) Interpretation

The Oregon Supreme Court interprets Article VII (Amended), section 3, "by examining '[i]ts specific wording, the case law surrounding it, and the historical circumstances that led to its creation.'" Greist v. Phillips, 322 Or 281, 296, 906 P2d 789 (1995) (quoting Priest, 314 Or at 415-16), disavowed in part on other grounds by Busch v. McInnis Waste Systems, 366 Or 628, 643-44, 468 P3d 419 (2020). For greater interpretation of the historical circumstances leading to the amendment (a voters' pamphlet), see State v. Mendez, 211 Or App 311, 320, 155 P3d 54, rev den, 343 Or 160 (2007) ("There was only one statement submitted in favor of the measure, and none in opposition.").

Article VII (Amended), section 3, retains the distinction between cases in law and in equity, even though in 1979, ORCP 2 abolished procedural distinctions between those two categories. Or Laws 1979, ch 284, § 3 (adopting the Oregon Rules of Civil Procedure); M.K.F., 352 Or at 420-21; Jackson County Federal Savings & Loan Ass'n v. Urban Planning, Inc., 95 Or App 598, 605, 771 P2d 629, rev den, 308 Or 197 (1989); see also Or Laws 1979, ch 284, § 5 (codified at ORS 174.590).

The first part of Article VII (Amended), section 3, the provision on the right of trial by jury, ratifies what "was a part of our original charter, and it, of course, could gain no additional force by re-enactment." Hoag v. Washington-Oregon Corp., 75 Or 588, 597, 613, 147 P 756 (1915) (on rehearing). The second part, "relating to retrials of cases," is new. Hoag, 75 Or at 613. The first sentence "departs somewhat from the language of Art. I, § 17 . . . and follows closely the language" of the Seventh Amendment of the United States Constitution. Van Lom, 187 Or at 98. The Oregon Supreme Court concluded that "the framers" of this 1910 amendment "deliberately rejected the common-law" standard in the Seventh Amendment, declaring "their purpose to eliminate, as an incident of jury trial in this state, the common-law power of a trial court to re-examine the evidence and set aside a verdict because it was excessive or in any other respect opposed to the weight of the evidence." Van Lom, 187 Or at 99; see also Tenold, 127 Or App at 520-26.

The "mischief aimed at" in Article VII (Amended), section 3, "was a multiplicity of new trials." Van Lom, 187 Or at 101. "[T]he primary—and, perhaps, exclusive—purpose of the first sentence of Article VII (Amended), section 3, was to preclude courts from reexamining and setting aside jury verdicts based on a judicial assessment of the weight and persuasiveness of the evidence." Mendez, 211 Or App at 321.

§ 6.3-3 Method to Determine If a Jury Right Exists

A party contending that a case or claim is not entitled to a civil jury may file a motion under ORCP 51 C(2): "The trial of all issues of fact shall be by jury unless: . . . [t]he court . . . finds that a right of trial by jury of some or all of those issues does not exist under...