Hoyle v. Superior Court In and For County of Maricopa
| Decision Date | 01 August 1989 |
| Docket Number | No. 1,CA-SA,1 |
| Citation | 161 Ariz. 224,778 P.2d 259 |
| Parties | Kenneth R. HOYLE, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable Edward C. Voss, the Honorable Rufus C. Coulter, the Honorable Irwin Cantor, judges thereof, Respondent Judges, STATE of Arizona and Kimberly J. Wright, Real Parties in Interest. 88-230. |
| Court | Arizona Court of Appeals |
This is a special action review of the trial court's denial of a request for a jury trial in a paternity action pursuant to A.R.S. section 12-846(F) (Supp.1988), which requires that paternity actions be tried to the court. We consider the following issues:
(1) whether there was a statutory or common law right to a jury trial in paternity actions when section 12-846(F) was enacted;
(2) whether section 12-846(F) is unconstitutional in light of the Arizona Constitution's article II, section 23 mandate that the right to a jury trial remain inviolate; and
(3) whether section 12-846(F) is unconstitutional because its purpose was not set forth in the title of the bill in which it was enacted as article IV, part 2, section 13 of the Arizona Constitution requires.
We find that there was no statutory or common law right to a jury trial in paternity actions when section 12-846(F) was enacted and that section 12-846(F) does not violate the constitutional provisions in question. We previously issued an order denying the petitioner the relief that he requested. We now discuss our reasons for doing so.
On October 9, 1987, the state filed a paternity action against the petitioner. On January 12, 1988, the petitioner requested a jury trial. When the state later moved that the case be set for trial to the court, the petitioner again requested a jury trial. The state opposed the petitioner's request. After receiving memoranda and hearing oral argument on the issue, the trial court denied the petitioner's request. This special action followed.
Because an order denying a request for a jury trial is not an appealable order, see A.R.S. § 12-2101 (Supp.1988), a petition for special action is an appropriate method of seeking review. See Tanner Cos. v. Superior Court, 123 Ariz. 599, 599-600, 601 P.2d 599, 599-600 (1979). We accepted special action jurisdiction because the constitutionality of section 12-846(F) is an issue of first impression and of statewide importance. See Bartlett v. Superior Court, 150 Ariz. 178, 180, 722 P.2d 346, 348 (App.1986).
The petitioner contends that section 12-846(F) abrogated the statutory right to a jury trial in paternity actions. We disagree with this characterization of section 12-846(F)'s effect. We find that it could not have abrogated the statutory right to a jury trial in paternity actions because no such right existed when it was enacted. We base this conclusion upon an analysis of the statutory history of paternity actions.
Paternity statutes first appeared in the 1913 Penal Code. See Ariz. Penal Code §§ 369-81 (1913). These statutes did not specifically give the defendant in a paternity action the right to a jury trial. See id. However, a general provision of the Penal Code extended every criminal defendant this right. Ariz. Penal Code § 753(1) (1913).
Article IV, part 2, section 13 of the Arizona Constitution requires that each legislative act deal with a single subject and express that subject in its title. In 1922, the Arizona Supreme Court found that the legislature violated this provision by including paternity statutes in the Penal Code because paternity actions were civil rather than criminal in nature. Skaggs v. State, 24 Ariz. 191, 201-02, 207 P. 877, 880 (1922). The court accordingly struck down the paternity statutes as unconstitutional. Id. at 202, 207 P. at 880.
The following year, the legislature enacted almost identical statutes as part of the Civil Code. See Laws 1923, ch. 72, §§ 1-15. At that time, the Code provided that either party in a civil action had the right to submit all issues of fact to a jury. Ariz.Civ.Code p 508 (1913). This provision was subsequently deleted from the 1928 Revised Code. See Ariz.Rev.Code § 3802 (1928). It was replaced by the following provision: "A jury may be demanded by either party in writing, filed with the court before the action is set, or may be demanded orally in open court at the time of the setting." Id. This provision differed from its predecessor in that it was purely procedural in nature and did not grant a substantive right to a jury trial.
The 1928 provision was in turn superseded by Rule 38(b) of the Rules of Civil Procedure when Arizona adopted its counterpart to the Federal Rules in 1939. See Ariz.Code § 21-908 (1939) (currently at Rule 38(b), Arizona Rules of Civil Procedure, 16 A.R.S.). Rule 38(b) is also purely procedural. In pertinent part, it provides that a party "may demand a trial by jury of any issue triable of right by a jury."
Since there was no general statutory grant of the right to a jury trial in civil actions after 1928, we examine the paternity statutes themselves to ascertain whether they provided such a right. These statutes remained essentially the same from the time that they were originally enacted in 1923 until they were repealed in 1971. See A.R.S. former §§ 12-841 to 12-851 (repealed by Laws 1971, ch. 163, § 1); Laws 1953, ch. 67, § 1; Ariz.Code §§ 27-405 to 415 (1939); Ariz.Rev.Code §§ 275-85 (1928); Laws 1923, ch. 72, §§ 1-15. They required that a justice of the peace conduct a preliminary examination of the defendant and other witnesses to determine whether there was probable cause to believe that the defendant was the father of the child in question. See State v. Hicks, 69 Ariz. 208, 212, 211 P.2d 473, 476 (1949). If the examination revealed that probable cause existed, and the defendant did not reach a support agreement with the child's mother, the justice of the peace was required to bind the defendant over to the superior court for trial on the paternity issue. Id.
As we have noted, the statutes did not specifically give the defendant in a paternity action the right to a jury trial. See A.R.S. former §§ 12-841 to 851 (repealed by Laws 1971, ch. 163, § 1). However, they did include a provision that gave the defendant the right to present certain evidence to the jury. See A.R.S. former § 12-845(D) (repealed by Laws 1971, ch. 163, § 1). This provision was the only reference to a jury in the statutory scheme. It read as follows: "The examination taken before the justice of the peace shall in all cases be read to the jury when demanded by the defendant." Id.
What a statute necessarily implies is as much a part of the statute as what the statute specifically expresses. Maricopa County v. Douglas, 69 Ariz. 35, 39, 208 P.2d 646, 648 (1949); Preferred Risk Mut. Ins. Co. v. Tank, 146 Ariz. 33, 35, 703 P.2d 580, 582 (App.1985). We believe that in giving the defendant in a paternity action the right to present certain evidence to the jury, the legislature, by necessary implication, also gave the defendant the right to a jury trial.
This right was law until 1971. See A.R.S. former § 12-845(D) (repealed by Laws 1971, ch. 163, § 1). In 1971, the paternity statutes were repealed. Laws 1971, ch. 163, § 1. The legislature replaced them with a new statutory scheme that eliminated the examination by the justice of the peace and gave the superior court jurisdiction of the entire paternity proceeding. See A.R.S. §§ 12-841 to 851. There was no reference to a jury or a jury trial in the new scheme. See id. The legislature did not add such a reference in subsequent amendments. See A.R.S. §§ 12-841 to 851 (1982 & Supp.1988). In 1988, the legislature enacted section 12-846(F), which requires that paternity actions be tried to the court.
Since none of the statutes enacted after 1970 conferred the right to a jury trial in paternity actions, we conclude that section 12-846(F) did not abrogate this right. By requiring that paternity actions be tried to the court, it merely made explicit what had been implicit in the statutory scheme since 1971.
Article II, section 23 of the Arizona Constitution provides in pertinent part that "[t]he right to trial by jury shall remain inviolate." This provision preserves the right to a jury trial in those actions in which the right existed at common law when the Arizona Constitution was adopted in 1910. Rothweiler v. Superior Court, 100 Ariz. 37, 41, 410 P.2d 479, 482 (1966). In response to the petitioner's contention that there was a right to a jury trial in common law paternity actions, the state asserts that paternity actions did not exist at common law.
The term "common law" has several meanings. See Black's Law Dictionary 250-51 (5th ed. 1979). In one sense, it refers to the ancient, nonstatutory law of England as applied and developed in the English courts. Id. As defined in this manner, the common law regarded an illegitimate child as filius nullius--the child of no one. McGlohon v. Harlan, 254 S.C. 207, 211, 174 S.E.2d 753, 755 (1970). On the basis of this fiction, it Doughty v. Engler, 112 Kan. 583, 583-84, 211 P. 619, 619 (1923).
Historically, the purpose of a paternity action was to prove that the defendant was the child's father so that he could be required to contribute to the child's support. E.R.B. v. J.H.F., 496 A.2d 607, 611 (D.C...
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