Nebraska State Constitution Article I-6

Article I-6

I-6.

Trial by jury.

The right of trial by jury shall remain inviolate, but the Legislature may authorize trial by a jury of a less number than twelve in courts inferior to the District Court, and may by general law authorize a verdict in civil cases in any court by not less than five-sixths of the jury.

Source

  • Neb. Const. art. I, sec. 6 (1875);
  • Amended 1920, Constitutional Convention, 1919-1920, No. 1.

Annotations


1. Meaning and effect


2. Waiver


3. Entitled to jury trial


4. Not entitled as matter of right


5. Miscellaneous


1. Meaning and effect

In 1875, there was no right to a jury trial on any issue in a suit against the State or its political subdivisions because the common-law doctrine of sovereign immunity, and the related common-law doctrine of governmental immunity, operated to bar such suits at that time. Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014).

The guaranty of a jury trial in this provision is part of Nebraska’s fundamental law, but it preserves the right to a jury trial as it existed under the common law when the Constitution of Nebraska was adopted in 1875. Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014).

The purpose of this provision is to preserve the right to a jury trial as it existed at common law and under statutes in force when the Nebraska Constitution was adopted in 1875. The essential character of a cause of action and the remedy or relief it seeks as shown by the allegations of the petition determine whether a particular action is one at law to be tried to a jury or in equity to be tried to a court. State ex rel. Cherry v. Burns, 258 Neb. 216, 602 N.W.2d 477 (1999).

Right to jury trial not abridged by mandatory review of medical claim under Nebraska Hospital-Medical Liability Act. Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657 (1977).

The court may require that a motion to waive a jury trial be made or filed within a reasonable time prior to trial as a condition to the consent of the court. State v. Godfrey, 182 Neb. 451, 155 N.W.2d 438 (1968).

Determination of sentence to be imposed by court instead of jury does not violate this section. Poppe v. State, 155 Neb. 527, 52 N.W.2d 422 (1952).

Constitution merely preserves right of jury trial as it existed at common law and under statutes in force when Constitution was adopted. One charged with drunken driving under city ordinance is not entitled to jury trial in absence of statute. State v. Hauser, 137 Neb. 138, 288 N.W. 518 (1939).

Constitutional provision does not extend right to jury trial beyond the limits existing at time of adoption of Constitution; jury trial is not a constitutional right in proceeding for appointment or removal of guardian. In re Guardianship of Warner, 137 Neb. 25, 288 N.W. 39 (1939).

The right of trial by jury is a right not extended by the Constitution but one preserved. In an equity case the court may, but is not bound to, give a jury trial. Omaha Fire Insurance Co. v. Thompson, 50 Neb. 580, 70 N.W. 30 (1897).

An action upon a contract for the payment of money only, unencumbered by any collateral agreements, contracts or securities whatever, is a legal action and the issue of fact is triable to a jury. Kuhl v. Pierce County, 44 Neb. 584, 62 N.W. 1066 (1895).

Where a petition states a cause of action for equitable relief and prays for equitable relief, a jury cannot be demanded as a matter of right for the trial of any issue arising in the case. Sharmer v. McIntosh and Johnson, 43 Neb. 509, 61 N.W. 727 (1895).


2. Waiver

A party’s waiver of a jury trial in district court is statutorily governed by section 25-1126 because it sets reasonable limits on a constitutional right. Section 25-1126 provides an exclusive list of the manners in which a waiver occurs. Unless a party’s conduct falls into one of that section’s three categories, a court will not find a waiver of a constitutional right. Section 25-1126 does not provide that a party waives the right to jury trial by failing to demand one. Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014).

Cases in which the parties tried issues of fact to the court without objection or asked for a directed verdict should be construed as falling into the “oral consent” category of waivers under section 25-1126. Such conduct is inconsistent with demanding a jury trial, and the trial court’s judgment operates as its assent to the procedure. Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014).

Merely failing to object, before trial, to a defendant’s request for a bench trial on a bifurcated affirmative defense is not oral consent in open court to waive a jury trial. Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014).

Right to a trial by jury may be waived by defendant in criminal case. State v. Carpenter, 181 Neb. 639, 150 N.W.2d 129 (1967).

In a civil action, right of trial by jury may be waived. McKinney v. County of Cass, 180 Neb. 685, 144 N.W.2d 416 (1966); Davis v. Snyder 45 Neb. 415, 63 N.W. 789 (1895).

Right to trial by jury may be waived. Johnson v. State, 169 Neb. 783, 100 N.W.2d 844 (1960).

Party who invoked special proceeding could not question constitutionality thereof under this section. Lackaff v. Department of Roads & Irrigation, 153 Neb. 217, 43 N.W.2d 576 (1950).

A plea of guilty waived defendant's right to be served with copy of accusation, time in which to examine the charge and prepare his defense, and waived all other preliminary steps. In re Application of Rice, Rice v. Olson, 144 Neb. 547, 14 N.W.2d 850 (1944), reversed in 324 U.S. 786 (1945).

A request by both parties for direction of a verdict amounts to a waiver of a jury. In re Estate of Bose, 136 Neb. 156, 285 N.W. 319 (1939).

Right to trial by jury in civil case is mere personal privilege which the litigant may waive. Berg v. Griffiths, 126 Neb. 235, 252 N.W. 918 (1934).

In felony case, where prisoner waived jury and trial had to court the judgment and sentence is void. Michaelson v. Beemer, 72 Neb. 761, 101 N.W. 1007 (1904); Arnold v. State, 38 Neb. 752, 57 N.W. 378 (1894).


3. Entitled to jury trial

Negligence and personal injury actions are actions at law. At common law, legal claims were tried by a jury and equitable claims were tried by a court. Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014).

Cited in determining that material issues of fact in contested garnishment proceedings are triable to jury. Christiansen v. Moore, 184 Neb. 818, 172 N.W.2d 620 (1969).

It is a part of our fundamental law that the right of trial by jury shall remain inviolate. Fugate v. Skate, 169 Neb. 420, 99 N.W.2d 868 (1959).

Value of an attorney's services is ordinarily a jury question. Neighbors & Danielson v. West Nebraska Methodist Hospital, 162 Neb. 816, 77 N.W.2d 667 (1956).

Right of trial by jury is not denied to defendant charged with being the father of a child born out of wedlock. In re Application of Rozgall, 147 Neb. 260, 23 N.W.2d 85 (1946).

Cashier of insolvent bank, made party to proceeding to establish preference, is entitled to jury trial. Gering v. Buerstetta, 118 Neb. 54, 223 N.W. 625 (1929).

In proceeding to revive dormant judgment, where payment or satisfaction is pleaded, it is error for the court to deny a request for a trial by jury. Farak v. First Nat. Bank of Schuyler, 67 Neb. 463, 93 N.W. 682 (1903); McCormick & Brother v. Carey, 62 Neb. 494, 87 N.W. 172 (1901).

Clause in fire insurance policy providing that no action shall be brought thereon after breach but all differences settled by arbitration is void, as tending to oust the courts of the jurisdiction. Phoenix Ins. Co. v. Zlotky, 66 Neb. 584, 92 N.W. 736 (1902); Hartford Fire Ins. Co. v. Hon, 66 Neb. 555, 92 N.W. 746 (1902).

In action for money judgment for breach of contract, though equitable in nature, the issue should be submitted to a jury if demand is made for one. Lett v. Hammond, 59 Neb. 339, 80 N.W. 1042 (1899).

If purpose of action is primarily for recovery of money, though in part equitable in nature, the right to trial by jury exists. Yager v. Exchange Nat. Bank of Hastings, 52 Neb. 321, 72 N.W. 211 (1897); Omaha Fire Ins. Co. v. Thompson, 50 Neb. 580, 70 N.W. 30 (1897).

In garnishment proceedings, if the garnishee makes legal or equitable claim to the funds he is entitled to trial by jury. Clark v. Foxworthy, 14 Neb. 241, 15 N.W. 342 (1883).


4. Not entitled as matter of right

The Legislature has the right to decide the terms under which it will waive its sovereign and governmental immunity for tort actions against the State or its political subdivisions. Because a jury trial is not one of the terms of the State’s waiver of governmental immunity under the Political Subdivisions Tort Claims Act, a party is not entitled to a jury trial on its claim that a defendant is not a political subdivision employee. Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014).

Notwithstanding constitutional mandates regarding a jury trial, there is no constitutional right to trial by jury for petty offenses carrying a maximum sentence of imprisonment of 6 months or less. State v. Kennedy, 224 Neb. 164, 396 N.W.2d 722 (1986).

It is within the power of the Legislature to provide that the trial of petty offenses in violation of a city or village ordinance shall be triable without a jury. State v. Johnson, 191 Neb. 535, 216 N.W.2d 517 (1974).

Right to jury trial not given in school district reorganization appeal. Schroeder v. Oeltjen, 184 Neb. 8, 165 N.W.2d 81 (1969).

Trial without a jury for violation of city or village ordinance is not a violation of this section. State v. Lookabill, 176 Neb. 254, 125 N.W.2d 695 (1964).

Legislature may authorize trial of petty offenses without a jury for violation of city or village ordinance. State v. Amick, 173 Neb. 770, 114 N.W.2d 893 (1962).

Election contest is a summary action and is not a suit in which a trial by jury is guaranteed under the Constitution. McMaster v. Wilkinson, 145 Neb. 39, 15 N.W.2d 348 (1944).

Action to quiet title to real estate, acquired by accretion, is tried as an equitable action, without a jury. Frank v. Smith, 138 Neb. 382, 293 N.W. 329 (1940).

Enjoining defendants from betting on horse races in their places of business is an equitable remedy to prevent a nuisance and not a proceeding to punish defendants, and does not violate constitutional guarantee of jury trial. State ex rel. Hunter v. The Araho, 137 Neb. 389, 289 N.W. 545 (1940).

Cases arising under Workmen's Compensation Act may be tried and determined as a suit in equity, and it is not in violation of Constitution not to provide for jury. Nosky v. Farmers Union Cooperative Assn., 109 Neb. 489, 191 N.W. 846 (1922).

This section has no application to judicial proceedings concerning the amount or legality of special assessments for benefits to highways within a drainage district. Drainage Dist. No. 1, Richardson County v. Richardson County, 86 Neb. 355, 125 N.W. 796 (1910).

On a motion for a deficiency judgment in the foreclosure of a real estate mortgage, the mortgagors are not entitled to a trial by a jury. Daniels v. Mutual Benefit Life Insurance Company, 73 Neb. 257, 102 N.W. 458 (1905).

Action by county, to foreclose tax lien, is a suit in equity and there is no constitutional right of a trial by jury. Woodrough v. Douglas County, 71 Neb. 354, 98 N.W. 1092 (1904).

Quo warranto and injunction to exclude a corporation from the privilege of doing business in this state does not require a trial by jury. State v. Standard Oil Co., 61 Neb. 28, 84 N.W. 413 (1900).

In quo warranto proceedings against a public officer, a jury trial cannot be demanded as a matter of right. State ex rel. Broatch v. Moores, 56 Neb. 1, 76 N.W. 530 (1898).

The accused is not entitled to jury trial in prosecution under city ordinance. Liberman v. State, 26 Neb. 464, 42 N.W. 419 (1889).

An action to foreclose mechanic's lien is essentially a suit in equity, and a party is not as a matter of right entitled to a jury therein. Dohle v. Omaha Foundry & Machine Co., 15 Neb. 436, 19 N.W. 644 (1884).

Contempt proceeding is solely to protect public justice from obstruction and the accused is not entitled to trial by jury. Gandy v. State, 13 Neb. 445, 14 N.W. 143 (1882).


5. Miscellaneous

The right of trial by jury hereunder does not apply to second offense drunk driving because that is a misdemeanor, not recognized by the common law or any statute in existence when the Constitution was adopted. State v. Young, 194 Neb. 544, 234 N.W.2d 196 (1975).

Denial of request for a separate trial of defendant in a criminal case did not violate this section. State v. Adams, 181 Neb. 75, 147 N.W.2d 144 (1966).

Verdict in civil case by five-sixths of jury was authorized. Cartwright & Wilson Constr. Co. v. Smith, 155 Neb. 431, 52 N.W.2d 274 (1952).

Right of jury trial is not denied where adverse claims are presented and tried in mortgage foreclosure proceeding. Lincoln Joint Stock Land Bank v. Barnes, 143 Neb. 58, 8 N.W.2d 545 (1943).

Where defendant is charged with a felony, it is prejudicial error for court, without notice to and in absence of defendant and his counsel, to instruct jury orally while it is deliberating upon its verdict. Strasheim v. State, 138 Neb. 651, 294 N.W. 433 (1940).

Where cause of action is reversed and remanded, both parties are entitled to a retrial of the cause generally and it is error for trial court to enter judgment for a certain amount though Supreme Court had indicated that aggrieved party was entitled to damages. Parish v. County Fire Ins. Co., 137 Neb. 385, 289 N.W. 765 (1940).

A judgment notwithstanding the verdict can only be entered when the pleadings of the party in whose favor verdict was rendered confess facts entitling other party to judgment. Wolfinger v. Shaw, 136 Neb. 604, 287 N.W. 63 (1939).

A verdict so clearly excessive as to induce the belief that it must have been found through passion, prejudice or mistake, will be set aside. Collins v. Hughes & Riddle, 134 Neb. 380, 278 N.W. 888 (1938).

It is error to submit a case to a jury and permit it to speculate with the rights of litigants where no question for the jury is involved. Smith v. Epstein Realty Co., 133 Neb. 842, 277 N.W. 427 (1938).

Function of determining facts must, under the Constitution, be discharged by jury in action for damages for personal injuries. Storm v. Christenson, 130 Neb. 86, 263 N.W. 896 (1936).

Practice of nonsuiting plaintiff at close of opening statements to jury disapproved. Temple v. Cotton Transfer Co., 126 Neb. 287, 253 N.W. 349 (1934).

Statute authorizing city to condemn public utility property, although no jury trial provided, is constitutional. City of Mitchell v. Western Public Service Co., 124 Neb. 248, 246 N.W. 484 (1933).

Statute vesting magistrates and police courts with powers to try liquor violations without jury where penalty within certain limits, does not violate this section. State v. Kacin, 123 Neb. 64, 241 N.W. 785 (1932).

A fair determination of the facts involved in a criminal prosecution adversely to the accused, by a constitutional jury, is a prerequisite to the infliction of punishment. Scott v. State, 121 Neb. 232, 236 N.W. 608 (1931).

Mandamus will not lie to vacate order denying jury trial for liquor offense, in view of adequate remedy by appeal or error. State ex rel. Garton v. Fulton, 118 Neb. 400, 225 N.W. 28 (1929).

Litigant cannot demand jury on issue of adverse possession in suit to quiet title. Krumm v. Pillard, 104 Neb. 335, 177 N.W. 171 (1920).

Legislature may enact a law declaring possession and transportation of intoxicating liquors to be misdemeanors, and providing that violators of the law be tried before magistrates and police courts without a jury, where the penalty does not exceed a fine of one hundred dollars or imprisonment for three months. Bell v. State, 104 Neb. 203, 176 N.W. 544 (1920).

Provision for assessment of $300 against building enjoined as liquor nuisance, if construed as penalty, is unconstitutional as violating owner's right to jury trial. State ex rel. McGuire v. Macfarland, 104 Neb. 42, 175 N.W. 663 (1919).

Every person is guaranteed a fair and impartial trial by an impartial jury, and the obligation to protect these constitutional rights devolves upon the courts, and no court, when called upon to act, can shirk or evade the responsibility cast upon it by law. Wilson v. State, 87 Neb. 638, 128 N.W. 38 (1910).

In a law action a party is entitled to a jury trial as a matter of right. Yeiser v. Broadwell, 80 Neb. 718, 115 N.W. 293 (1908).

Whether or not a right to trial by jury exists must be determined from the object of the action as determined by the averments of the petition, and in case of ambiguity by resort to the prayer. Gandy v. Wiltse, 79 Neb. 280, 112 N.W. 569 (1907).

Where a statute providing for selection of juries is incomplete, it is invalid because its requirements cannot be complied with. State ex rel. Mickey v. Reneau, 75 Neb. 1, 106 N.W. 451 (1905).

Provision for jury of less than twelve in inferior courts does not violate this section. Chicago, B. & Q. R. R. Co. v. Headrick, 49 Neb. 286, 68 N.W. 489 (1896); Moise v. Powell, 40 Neb. 671, 59 N.W. 79 (1894).