Swails v. State

• Decision Date: 14 June 1993
• Docket Number: No. S93A0395,S93A0395
• Citation: 431 S.E.2d 101,263 Ga. 276
• Parties: SWAILS v. STATE of Georgia.
• Court: Georgia Supreme Court

Page 101

431 S.E.2d 101

263 Ga. 276

SWAILS v. STATE of Georgia.

No. S93A0395.

Supreme Court of Georgia.

June 14, 1993.

Reconsideration Denied July 15, 1993.

Virgil L. Brown, Virgil L. Brown & Associates, Patricia A. Buttaro, Zebulon, for Swails.

Tracy G. Gladden, Asst. Dist. Atty., Robert E. Keller, Dist. Atty., Jonesboro, Michael J. Bowers, Atty. Gen., Atlanta, Gary D. Bergman, for the State.

CARLEY, Justice.

Pursuant to OCGA § 16-13-49, the State filed a petition for forfeiture of property seized from appellant's place of business. Appellant answered, seeking the return of the property. Although OCGA § 16-13-49(o )(5) and (p)(6) provide that the proceeding "must be held by the court without a jury[,]" appellant nevertheless filed a demand for jury trial and attacked the constitutionality of those statutory provisions. Following a hearing, the trial court found no merit in appellant's constitutional challenge to the statutory provisions mandating a bench trial. The trial court did, however, certify its order for immediate review. Appellant applied for an interlocutory appeal and we granted that application to determine whether a jury trial must be afforded upon demand in forfeiture proceedings under OCGA § 16-13-49.

1. This is not a case involving construction of a forfeiture statute which fails to provide whether it is a bench trial or jury trial that is mandated. Subsections (o )(5) and (p)(6) of OCGA § 16-13-49 expressly mandate that the proceeding "must be held by the court without a jury." Accordingly, the issue presented for resolution is whether the Federal or State Constitutions prevent that express legislative mandate from having any force and effect. " 'Absent a debilitating constitutional flaw in the Act, this court must effectuate the common will expressed in the purpose of the legislation.' [Cit.]" Bryan v. Ga. Public Service Comm., 238 Ga. 572, 575, 234 S.E.2d 784 (1977).

2. The Seventh Amendment to the Federal Constitution provides that "[i]n Suits at common law, ... the right of trial by jury shall be preserved...." "The phrase 'common law,' found in this clause, is used in contradistinction to equity, and admiralty, and maritime jurisprudence.... By common law, [the Framers of the Amendment] meant ... not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those, where equitable rights alone were recognized, and equitable remedies were administered; or where, as in the admiralty, a mixture of public law, and of maritime law and equity, was often found in the same suit.... In a just sense, the amendment then may well be construed to embrace all suits, which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights." (Emphasis supplied.) Parsons v. Bedford, Breedlove & Robeson, 3 Pet. 433, 446-447, 7 L.Ed. 732 (1830).

Under this broad construction, whereby a suit must be deemed to be one which is in "common law" if it is not otherwise in equity or admiralty, it necessarily follows that the Seventh Amendment to the Federal Constitution mandates a jury trial in federal drug forfeiture actions wherein neither equity nor admiralty jurisdiction otherwise attaches. See United States v. One 1976 Mercedes Benz 280S, 618 F.2d 453 (7th Cir.1980). The Seventh Amendment does not narrowly provide "that no jury trial is required in a cause of action created by statute since any such action would have been unknown to the common law and therefore beyond the reach of the Seventh Amendment." Rogers v. Loether, 467 F.2d 1110, 1115 (7th Cir.1972). Instead, the Seventh Amendment broadly applies "to actions enforcing statutory rights, and requires a jury trial upon demand, if the statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law." Curtis v. Loether, 415 U.S. 189, 194, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974). Under the broadly construed language of the Seventh Amendment, "when Congress provides for enforcement of statutory rights in an ordinary civil action in the district courts, where there is obviously no functional justification for denying the jury trial right, a jury trial must be available if the action involves rights and remedies of the sort typically enforced in an action at law." Curtis v. Loether, supra at 195, 94 S.Ct. at 1009.

It is clear, however, that the Seventh Amendment to the Federal Constitution would not prevent our General Assembly from providing for a bench trial in statutory forfeiture proceedings. Van Oster v. Kansas, 272 U.S. 465, 467, 47 S.Ct. 133, 71 L.Ed. 354 (1926). That amendment "does not apply to suits in State courts. [Cit.]" Butler v. Claxton, 221 Ga. 620, 621, 146 S.E.2d 763 (1966).

3. Our State Constitution does not track the broad language of the Seventh Amendment to the Federal Constitution preserving the right to jury trial "[i]n Suits at common law...." Instead, Art. I Sec. I, Par. XI(a) provides that "[t]he right to trial by jury shall remain inviolate...." Accordingly, for purposes of determining whether there is a state constitutional right to a jury trial in a given action, it is not sufficient to eliminate equity and admiralty jurisdiction and reach the conclusion that the action must, therefore, be a suit "at common law" in which a jury trial is mandated. The right to a jury trial under our State Constitution is not as broad as that afforded under the Federal Constitution. The provision of our State Constitution regarding the right to jury trial "means that it shall not be taken away, as it existed in 1798, when the [first] instrument was adopted, and not that there must be a jury in all cases. New forums may be erected, and new remedies provided, accommodated to the ever shifting state of society." (Emphasis supplied in part.) Flint River Steamboat Co. v. Foster, 5 Ga. 194, 207-208 (1848). See also Hill v. Levenson, 259 Ga. 395(1), 383 S.E.2d 110 (1989). Obviously, the right to jury trial in drug forfeiture proceedings did not exist in 1798. This is true because the statute authorizing drug forfeiture is a "new remedy" which did not exist at common law, but which was enacted subsequent to 1798 so as to accommodate the "shifting state of society." See generally Bowman v. Davis, 51 Ga.App. 478, 479(3), 180 S.E. 917 (1935) (recognizing that the former statute providing for condemnation of private vehicles used in the transportation of intoxicating liquors over the highways was "in derogation of the common law...." ) "[T]here is no state constitutional right to a jury trial with respect to proceedings of statutory origin unknown at the time the Georgia Constitution was adopted. [Cit.]" (Emphasis supplied.) Benton v. Ga. Marble Co., 258 Ga. 58, 66(4), 365 S.E.2d 413 (1988). Since the provisions of OCGA § 16-13-49 create a statutory proceeding which was unknown in 1798, it follows that the General Assembly was authorized to provide for a bench trial in that proceeding and that the trial court in the instant case correctly overruled appellant's challenge to the constitutionality of OCGA § 16-13-49(o )(5) and (p)(6).

Judgment affirmed.

All the Justices concur, except BENHAM, SEARS-COLLINS and HUNSTEIN, JJ., who dissent.

HUNSTEIN, Justice, dissenting.

Because the majority opinion denies the right to a jury trial guaranteed by Art. I, Sec. I, Par. XI(a) of the Constitution of Georgia of 1983, I must respectfully dissent. The majority concludes the General Assembly was authorized to provide for trial without a jury in OCGA § 16-13-49(o )(5) because drug forfeiture proceedings did not exist prior to the adoption of the first Georgia Constitution. Believing that the right to a jury trial includes statutory proceedings of a similar nature that have arisen since the adoption of our Constitution, I would reverse the trial court.

As the majority notes, it is well established that in civil actions at law, "the right to trial by jury exists only where the right existed prior to the adoption of the first Georgia Constitution [in 1798]. [Cits.] The 1983 Georgia Constitution and OCGA § 9-11-38 assure that this right shall remain inviolate." Hill v. Levenson, 259 Ga. 395(1), 383 S.E.2d 110 (1989). In short, jury trials are available in proceedings that have a common law basis....