§39.6 Analysis

• Jurisdiction: Washington

§39.6ANALYSIS

Case law on CR 39 is sparse. Instead, extensive case law has developed on CR 38, namely on the scope of the right to a jury trial. Analysis of CR 39 is limited to the plain text of CR 39, the statutes referenced in CR 39, and the "savings clause" of CR 39.

(1)Issues triable by a jury

The initial section of CR 39 (entitled "Issues—HowTried"; demarcated as "(-)" (there is no equivalent federal provision)) cites to RCW 4.40.010-.070. Those statutory provisions (originally enacted in 1854) acknowledge the separation of the provinces between the jury and the judge. Questions of fact are decided by the jury, see RCW 4.40.060 & .070, and questions of law (e.g., admissibility of testimony, construction of statutes, rules of evidence, etc.) are decided by the judge, see RCW 4.40.080.

(2)Implementing the right to trial by jury

As discussed in Chapter 38 (Rule 38. Jury Trial of Right) of this deskbook, the scope of issues triable by a jury derives from constitutional guarantee. See Sofie v. Fibreboard Corp., 112 Wn.2d 636, 648, 771 P.2d 711, opinion amended, 780 P.2d 260 (1989) (analyzing scope of the right to a jury trial as available by common law as of 1889, when the Washington Constitution was adopted). CR 39 augments CR 38 by providing that an "action shall be designated upon the docket as a jury action" once a proper jury demand has been made under CR 38. CR 39(a)(1).

By referencing RCW 4.44.090 ("Questions of fact for jury"), CR 39(a) reserves the traditional role of the jury as arbiter of the facts.

(3)Discretion of...