The Goldwater Institute filed a brief in the Arizona Supreme Court today urging the justices to enforce the state constitution’s promise that “the right of trial by jury shall remain inviolate,” and to halt efforts by bureaucratic agencies to force people into juryless “administrative hearings” instead.
Following closely on the United States Supreme Court’s holding in a case called Jarkesy that federal agencies must respect the Sixth Amendment’s jury protections, the Arizona lawsuit focuses solely on state law—and particularly on the Arizona Corporation Commission, which claims it can bring fraud charges against people through in-house hearings instead of the traditional court system. Just as the Jarkesy case enforced federal constitutional guarantees against federal agencies, we’re asking the state court to enforce the state constitution against state agencies.
The case, called EFG America v. Arizona Corporation Commission, is actually one of three cases now pending before the state supreme court that involve the question of whether people are entitled to a jury trial when the Commission accuses them of securities fraud. “Fraud,” of course, has been against the law for centuries, and it’s always been the rule that a person accused of fraud is entitled to a trial before a jury of his or her peers. That matters because courts have said that the state constitution’s guarantee of a jury trial only applies to crimes that gave rise to a jury trial in 1912, when Arizona became a state. On the other hand, if the state legislature were to pass a new law today creating some new kind of crime, you would not necessarily be entitled to a jury for that.
The Commission cites that rule, arguing that because the legislature passed a law against “securities fraud” after 1912, you aren’t entitled to a jury trial when accused of violating that law. But as we explain in our brief , that argument doesn’t work, because Arizona courts have also said that the state legislature can’t just take an old crime and give it a new name by passing a new statute, and then say people don’t get jury trials. It can’t just pass a new law against fraud and then say that it supersedes the old rule that fraud accusations are tried before a jury.
EFG—represented by our friends at the Pacific Legal Foundation—argues that because “securities fraud” is basically the same as old-fashioned “fraud,” they’re entitled to a jury trial on these accusations. And that has to be right, because, as we argue in our brief, the alternative would be to enable the legislature to streamline criminal convictions by just passing new statutes—ones that define crimes more loosely—and thus shrug off the obligation to give people jury trials.
That’s a problem, given the aggressive reach of today’s administrative state. Today’s bureaucratic agencies exercise the legislature, executive, and judicial powers, by writing regulations, enforcing regulations, and then holding in-house “hearings” to determine whether someone’s violated the regulations. These hearings are often presided over, not by actual judges, but by people who work for the agency—in other words, the prosecution is paying the judge. And although the accused can usually appeal to a real court, the time and expense of doing so is frequently prohibitive. The result is just what America’s founding fathers feared: an unelected arm of the government that makes and enforces the law with minimal checks-and-balances.
We filed briefs in this case and the other two cases (called Cellebration and Sync Title), arguing that the constitutional guarantee of a jury trial is too important to be evaded by merely calling old crimes by new names. After all, the Arizona Constitution says that the right to a jury trial is “inviolate,” and, as we say in our brief, that’s as strong as it gets.
You can read our brief here , learn more about this and the other jury cases here and here, and read about Goldwater’s work challenging the administrative state here.
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.
