§38.6 Analysis

• Jurisdiction: Washington

§38.6 ANALYSIS

The sections below discuss Washington law on the "historical standard" used to determine the scope of the jury trial, the application of that standard to instances of mixed questions of law and equity, and the types of cases to which the right applies.

(1)The "two-step" approach to determine whether there is a right to trial by jury

Washington courts follow a "two-step" approach to determine whether the Washington Constitution, article I, §21, confers a right to a jury trial in a particular cause of action. Endicott v. Icicle Seafoods, Inc., 167 Wn.2d 873, 884, 224P.3d761, cert, denied, 130 S. Ct. 3482 (2010). "The first step is to determine the scope of the jury trial right as it existed at the State constitution's adoption in 1889." Id. For example, the determination of damages in an action at law was within the jury's province in 1889. Id.

"The second step is to determine the causes of action to which the right attaches." Id. The inquiry at the second step is not whether the specific cause of action existed in 1889, but rather whether the type of action is analogous to one available at that time. Id. For example, "[a]n action 'centered on negligence' is analogous to the 'basic tort theories' that existed when the constitution was adopted ...." Id. at 884-85. Therefore, the constitutional jury trial right applies. Id. Thus, counsel, in considering what causes of action are covered by the right to a jury trial, may need to be creative in analogizing modern causes of action to those in effect in 1889. See §38.6(3), below, for a collection of cases determining the right with respect to particular causes of action. Indeed, the Washington Supreme Court has recognized that "constitutional analysis is not completely frozen in time" and so "essential right" to a jury trial should not "slowly wither[] away." Sofie v. Fibreboard Corp., 112 Wn.2d 636,649,77 lP.2d 711, opinion amended, 780 P.2d 260 (1989).

Comment: The Washington Supreme Court's approach is similar to the approach taken by the United States Supreme Court, which held that the Seventh Amendment to the United States Constitution preserved the right to trial by jury "in suits at common law" at the time the Seventh Amendment was adopted. See Bait. &amp Car. Line, Inc. v. Redman, 295 U.S. 654, 657, 55 S. Ct. 890 79 L. Ed. 1636 (1935) ("The right of trial by jury thus preserved is the right which existed under the English common law when the amendment was adopted.").

(2)Jury trial right when case presents mixed questions of law and equity

Historically, law and equity were separate. With the adoption of code pleading, the procedural distinctions between law and equity were eliminated. Thus, under CR 2, there is only one form of action known as a "civil action." Under current rules favoring liberal joinder of claims and parties, it is common for legal and equitable issues to be "mixed" in the same proceeding. Thus, in modern practice, legal and equitable claims or requests for relief are often combined by a single party in a single action under CR 18, and permissive joinder of parties under CR 20 is very broad. See Chapters 18 (Rule 18. Joinder of Claims and Remedies) and 20 (Permissive Joinder of Parties) of this deskbook. Moreover, in view of the requirement for compulsory counterclaims under CR 13(a), a party with an equitable counterclaim may be forced to assert it in response to a legal claim by another party. See Chapter 13 (Rule 13. Counterclaim and Cross Claim) of this deskbook. Claims also have been created by statute that did not exist at common law. In short, although the procedural distinction between law and equity has disappeared, the practical difference still may affect the right to trial by jury.

Brown v. Safeway Stores, Inc., 94 Wn.2d 359, 617 P.2d 704 (1980), is the seminal case in which the Washington Supreme Court analyzed the right to a jury trial in cases presenting mixed legal and equitable claims. In that case, plaintiff alleged that defendant (1) breached a lease, (2) engaged in unfair competition, and (3) interfered with contractual relations. Id. at 365. Thus, plaintiff sought the following relief: (1) a declaration that defendant had abandoned the lease by closing the store and removing the fixtures; (2) surrender of the premises; (3) restoration of the premises to their original condition at defendant's expense; (4) an accounting by defendant of its gross sales in 1977 and payment of the proper percentage rental to plaintiff; and (5) recovery for any other damage sustained by plaintiff, including loss of business and percentage rentals during the period defendant's store was closed. Id. at 365-66. Plaintiff demanded a jury trial on all issues; defendant moved to strike the jury demand. The trial court granted the defendant's motion to strike. The Supreme Court affirmed the trial court, holding that the trial court is accorded wide discretion in determining whether an action is equitable or legal in nature: "In determining whether a case is primarily equitable in nature or is an action at law, the trial court is accorded wide discretion, the exercise of which will not be disturbed except for clear abuse." Id. at 368. The Supreme Court also held that a court's discretion should be exercised with reference to the following nonexhaustive factors:

(1) who seeks the equitable relief; (2) is the person seeking the equitable relief also demanding trial of the issues to the jury; (3) are the main issues primarily legal or equitable in their nature; (4) do the equitable issues present complexities in the trial which will affect the orderly determination of such issues by a jury; (5) are the equitable and legal issues easily separable; (6) in the exercise of such discretion, great weight should be given to the constitutional right of trial by jury and if the nature of the action is doubtful, a jury trial should be allowed; (7) the trial court should go beyond the pleadings to...