Tanner Companies v. Superior Court, In and For Yuma County, 14416

• Decision Date: 10 October 1979
• Docket Number: No. 14416,14416
• Parties: The TANNER COMPANIES, an Arizona Corporation for the benefit of Magini Leasing and Contracting, an Arizona Corporation, Petitioner, v. SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF YUMA, and State of Arizona, real party in interest, Respondents.
• Court: Arizona Supreme Court

Page 599

601 P.2d 599 123 Ariz. 599 The TANNER COMPANIES, an Arizona Corporation for the benefit of Magini Leasing and Contracting, an Arizona Corporation, Petitioner,
v.
SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF YUMA, and State of Arizona, real party in interest, Respondents. No. 14416. Supreme Court of Arizona, In Banc. Oct. 10, 1979.

Lewis & Roca by Thomas C. Horne, Phoenix, for petitioner.

Robert K. Corbin, Atty. Gen., by Joe Acosta, Jr., and Richard Kamps, Asst. Attys. Gen., Phoenix, for respondents.

HAYS, Justice.

Denied the right to a jury trial in a breach of contract action against the state, petitioner Tanner Companies filed a petition for special action. Pursuant to Art. 6, § 5(4) of the Arizona Constitution and Rules [123 Ariz. 600]

Page 600

4 and 7 of the Rules of Procedure for Special Actions, we accepted jurisdiction. By written order of July 17, 1979, we granted petitioner a jury trial, indicating that an opinion would follow.

Unable to resolve contractual differences with the Department of Transportation, petitioner instituted suit under A.R.S. § 12-821:

Persons having claims on contract or for negligence against the state, which have been disallowed, may on the terms and conditions set forth in this article, bring action thereon against the state and prosecute the action to final judgment.

In addition, petitioner timely requested a jury trial, which was denied.

Petitioner argues that he is entitled to a jury trial under Art. 2, § 23 of the Arizona Constitution and Rule 38(a), Rules of Civil Procedure, the pertinent parts of which follow:

Art. 2, § 23: The right of trial by jury shall remain inviolate.

Rule 38(a): The right of trial by jury shall be preserved inviolate.

Respondent contends that the constitution merely preserves the right as it existed at common law. Since there was no right to sue the state when the constitution became effective (February 14, 1912), no right to trial by jury in an action against the state was preserved. Furthermore, respondent reasons, Rule 38(a) does not bestow such a right because under federal law, from which it was adopted, there was no right to a jury trial against the sovereign except upon the sovereign's terms.

Finally, respondent argues, Art. 4, Pt. 2, § 18 of the Arizona Constitution permits the legislature to direct in what manner suits may be brought: "The Legislature shall direct by law in what manner and in what courts suit may be brought against the State." Failure to enact positive statutory law permitting a trial by jury against the state under A.R.S. § 12-821, respondent urges, is proof that no such right was intended under that provision.

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