Yesterday's post discussed the Court of Appeal's holding in  Nationwide Biweekly Administration, Inc. v. Superior Court, 2018 Cal. App. LEXIS 541, that a defendant in a civil proceeding by the Department of Business Oversight for statutory penalties is entitled to a jury trial on the question of liability.  If liability is found, then the amount of damages may be determined by the court in its discretion.  In the course of analyzing federal and state precedent, the Court of Appeal noted:

"The only substantive variance between the federal and state civil jury trial analyses that we can see is that the federal analysis looks to the common law as of 1791, when the Seventh Amendment was adopted, while California's analysis looks to the common law as of 1850, when the California Constitution was adopted."

I have checked to see whether there any substantial change in the right to a jury between 1791 and 1850.  However, it does seem somewhat arbitrary that so fundamental a right would depend on the state of the law more than two centuries ago.  

It should be noted that the U.S. Constitution actually includes two rights to a jury.   Article III, Section 3 guaranties the right in trials of all crimes except impeachment.  Thus, the Constitution as originally adopted did not guaranty the right to a jury trial in civil cases.  This right was added as the Seventh Amendment. 

Under the California Constitution, the content of the right varies depending on whether the case is civil or criminal.  Thus, Article I, Section 16 provides:

• Unanimity is not required in a civil cause - three-fourths of the jury may render a verdict. 
• In a criminal cause, a jury may be waived by the consent of both parties expressed in open court by the defendant and the defendant’s counsel while in a civil cause, a jury may be waived by the consent of the parties expressed as prescribed by statute.
• In civil causes, the jury must consist of 12 persons or a lesser number agreed on by the parties in open court. In civil causes other than causes within the appellate jurisdiction of the court of appeal the Legislature may provide that the jury will consist of eight persons or a lesser [sic] number agreed on by the parties in open court.  In criminal actions in which a felony is charged, the jury must consist of 12 persons. In criminal actions in which a misdemeanor is charged, the jury must consist of 12 persons or a lesser [sic] number agreed on by the parties in open court.