Chapter §6.3 CIVIL PROCEEDINGS

• Jurisdiction: Oregon

§6.3 CIVIL PROCEEDINGS

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. v. Miramontes, 352 Or 401, 426, 287 P3d 1045 (2012); see also ORCP 50. This section addresses the substance of the jury-trial right under those two provisions.

Procedurally, 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 the Constitution or statutes of this state."). See State ex rel. Dept. of Forestry v. Louisiana Pacific Corp., 166 Or App 205, 208, 999 P2d 487 (2000) (referencing such a motion).

NOTE: In addition to Article I, section 17, and Article VII (Amended), section 3, several other sections of the Oregon Constitution also involve juries in civil cases. Article I, section 16 (jury rights), and Article VII (Amended), section 5(7) (3/4 of a jury may render a verdict in civil cases), are not addressed 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 verbatim from the Indiana Constitution of 1851. W.C. Palmer, The Sources of the Oregon Constitution, 5 Or L Rev 200, 201 (1926). Article I, section 17, is part of the original constitution adopted in 1857 and has not been changed since then. Charles Henry Carey ed., The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1857 402 (1926). There is no reported debate regarding the adoption of Article I, section 17. Claudia Burton & Andrew Grade, A Legislative History of the Oregon Constitution of 1857—Part I (Articles I & II), 37 Willamette L Rev 469, 528-29 (2001).

NOTE: The reported debate regarding juries and jury trials involved a different provision—Article I, section 16—which addresses the related power of judges and juries in civil and criminal cases. See Carey, The Oregon Constitution at 310-315 (1926); State v. Merten, 175 Or 254, 260-63, 152 P2d 942 (1944).

§6.3-1(b) Article I, Section 17, Does Not Create Jury-Trial Rights

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). 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." Dean v. Willamette Bridge Ry 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). If a right to a civil jury trial exists, it "must arise from some source other than Article I, section 17." Jensen, 334 Or at 422.

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); see Lakin v. Senco Products, Inc., 329 Or 62, 69, 78, 82, 987 P2d 463, clarified, 329 Or 369, 987 P2d 476 (1999).

§6.3-1(c) Two Constitutional Provisions Together

In determining whether a claim allows for a jury trial, Article I, section 17, often is read together with Article VII (Amended), section 3, of the Oregon Constitution. Article VII (Amended), section 3, was adopted in 1910 and 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, e.g., 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. v. Miramontes, 352 Or 401, 408 n 5, 287 P3d 1045 (2012).

COMMENT: Combining the two constitutional provisions is interesting, because Article I, section 17, was copied from the Indiana Constitution and adopted in 1857 without debate, whereas Article VII (Amended), section 3, was enacted 53 years later in 1910 by voters with a voters' pamphlet. See §§ 6.3-1(a), 6.3-2(a).

§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. One of those amended parts, 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.

NOTE: 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, the sum was 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.'" Griest v. Phillips, 322 Or 281, 296, 906 P2d 789 (1995) (quoting Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992)). 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 (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. v. Miramontes, 352 Or 401, 420-21, 287 P3d 1045 (2012); Jackson County Fed. Sav. & Loan Ass'n v. Urban Planning, Inc., 95 Or App 598, 605, 771 P2d 629 (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, 613, 147 P 756 (1915). 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 v. Schneiderman, 187 Or 89, 98, 210 P2d 461 (1949), overruled in part as stated in Oberg v. Honda Motor Co., Ltd., 320 Or 544, 888 P2d 8 (1995). 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 v. Weyerhaeuser Co., 127 Or App 511, 520-26, 873 P2d 413 (1994), overruled on other grounds, Greist v. Phillips, 322 Or 281, 906 P2d 789 (1995).

CAVEAT: "[T]he Due Process Clause of the Fourteenth Amendment requires post-verdict judicial review of awards of punitive damages." Oberg v. Honda Motor Co., Ltd., 320 Or 544, 549, 888 P2d 8 (1995). Punitive-damages awards must fall "within the range that a rational juror would be entitled to award in the light of the record as a whole." Oberg, 320 Or at 551. See 1 Damages ch 3 (Oregon CLE 1998 & Supp 2007).

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 Types of Civil Proceedings with Civil Jury Rights

Claims that existed and had jury-trial rights before 1857 or 1859 generally have jury-trial rights under Article I, section 17, and Article VII (Amended), section 3, except cases in equity or admiralty. See McDowell Welding & Pipefitting, Inc. v. United States Gypsum Co., 345 Or 272, 279, 193 P3d 9 (2008); State v. 1920 Studebaker Touring Car, 120 Or 254, 259, 261-62, 251 P 701 (1926). Generally, there is no right to a jury trial in equitable cases, unless a jury was demandable for the class of case before 1857. Raymond v. Flavel, 27 Or 219, 230, 40 P 158 (1895) (Article I, section 17). "Article I, section 17, and Article VII (Amended), section 3, of the Oregon Constitution do not guarantee a right to jury trial for claims or request for relief that, standing alone, are equitable in nature and would have been tried to a court without a jury at common law." M.K.F. v. Miramontes, 352 Or 401, 425, 287 P3d 1045 (2012). Whether a party is entitled to a civil jury depends "on the nature of the relief requested and not on whether, historically, a court of equity would have granted the relief had the legal issue been joined with a separate equitable claim." M.K.F., 352 Or at 425. And "in the absence of a showing that the nature of a claim or request for relief is such that, for that or some other reason, it would have been tried to a court...