§48.6ANALYSIS
The following sections discuss the relationships between CR 48, the Washington Constitution, the U.S. Constitution, and relevant Washington statutory enactments regarding jury trials in civil cases.
(1)Washington state constitutional considerations
The Washington Constitution guarantees the right to a jury in state court for appropriate civil cases. Endicott v. Icicle Seafoods, Inc., 167 Wn.2d 873, 884, 224 P.3d 761, cert, denied, 130 S. Ct. 3482 (2010); Sofie v. Fibreboard Corp., 112 Wn.2d 636, 644, 771 P.2d 711, opinion amended, 780 P.2d 260 (1989). This determination involves a two-step analysis: the first step requires inquiry into the scope of the jury trial right as it existed when the state constitution was adopted in 1889; the second step requires examination of the causes of action to which the right attaches. Id.
The Seventh Amendment to the United States Constitution does not apply to the states in civil proceedings through the Fourteenth Amendment. Mountain Timber Co. v. Washington, 243 U.S. 219, 37 S. Ct. 260, 61 L. Ed. 685 (1917); Sofie, 112 Wn.2d at 644. Accordingly, Washington courts will look to state law to determine the constitutional validity of CR 48 or any other rule or law affecting the right to jury trial. Id.
The Washington Constitution provides as follows:
The right of trial by jury shall remain inviolate, but the legislature may provide for a jury of any number less than twelve in courts not of record, and for a verdict by nine or more jurors in civil cases in any court of record, and for waiving of the jury in civil cases where the consent of the parties interested is given thereto.
WASH. CONST, art. I, §21. The first clause of §21 preserves the right of trial by jury as it existed when the constitution was adopted in 1889, i.e., a jury of 12 members. Sofie, 112 Wn.2d at 645; City of Seattle v. Filson, 98 Wn.2d 66, 70, 653 P.2d 608 (1982) (constitutional allowance for juries of less than 12 establishes right to jury of 12 if demanded), overruled on other grounds by In re Eng, 113 Wn.2d 178, 776 P.2d 1336 (1989); State v. Ellis, 22 Wash. 129, 132, 60 P. 136 (1900), overruled in part by State v. Lane, 40 Wn.2d 734, 246 P.2d 474 (1952).
Section 21 also limits the power of the legislature or the judiciary to take away the right of trial by jury, but it does not interfere with an individual's right to waive the privilege. Endicott, 167 Wn.2d at 884; Ellis, 22 Wash, at 132. The Washington Supreme Court has expressly held that rules or statutes granting a choice of privileges can in no way jeopardize their preservation. See, e.g., State v. Lane, 40 Wn.2d 734, 737, 246P.2d474 (1952).
Under Washington law a party can waive the constitutional privilege to a 12-member jury and submit his or her cause to a jury of less than 12 or forgo a jury trial entirely. Lane, 40 Wn.2d 734; CR 38(b); RCW 4.44.120. This is consistent with the Washington Supreme Court's holding that the question of waiver pertains to the form and manner of the trial, not to the jurisdiction of the court. Lane, 40 Wn.2d at 737. Because CR 48 is couched in terms of waiver and does not compel the parties to proceed with less than 12 jurors, it does not infringe upon the state constitutional guarantee of a trial by jury of 12. Cf. Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234 (1978) (invalidating statute requiring five-member jury in criminal trial because it threatened the fairness of the proceeding and the proper role of the jury) ;Burch V. Louisiana, 441 U.S. 130, 99 S. Ct. 1623, 60 L. Ed. 2d 96 (1979) (requiring verdict by six-person juries to be unanimous to sustain a conviction for nonpetty offense).
(2)Federal constitutional...
