Arizona Court of Appeals Division One holds that there is no right to a jury trial for a statutory claim that did not exist when the Arizona Constitution was adopted.

The trial court held a jury trial for the common law claims but decided the statutory claim from the bench.  The family appealed, arguing that the jury should have decided the statutory claim too.

The Court of Appeals affirmed that the family had no right to a jury trial for their statutory claim, reasoning as follows.  In Arizona, a right to a jury trial exists in civil actions only when afforded by a statute or the Constitution.  No statute afforded the family a right to a jury trial for their statutory claim, so the only possible source of such a right was the Constitution.

The family relied on Article 2, Section 23 of the Arizona Constitution, which states: “The right of trial by jury shall remain inviolate.”  But that provision merely preserves the right to a jury trial if such a right existed at common law when the Constitution was adopted in 1910.  Here, no right to a jury trial existed for the family’s statutory claim when the Constitution was adopted, because the statute itself was not enacted until 1984.  And although related common law claims existed in 1910, the family’s statutory claim is substantially different.  For example, the statutory claim is part of a comprehensive regulatory scheme and requires proof that a person altered a watercourse without authorization from a flood district, whereas the common law claims that existed in 1910 had no connection to a regulatory scheme or flood districts.

Judge Weinzweig authored the opinion.  Presiding Judge Howe and Judge Gemmill (Ret.) concurred.