Constitution

Does the Arizona Constitution Allow Juryless Trial by Bureaucrats?

A case in Arizona calls into question the constitutionality of an administrative hearing in which the owners of a business were found guilty of fraud. 

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Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute, which filed an amicus brief in a case discussed in this article, Sync Title Agency v. Arizona Corporation Commission.

The right to trial by jury is one of the most cherished of American liberties. In fact, a primary cause of the American Revolution was the decision by British officials to establish a juryless court system known as vice-admiralty to decide tax cases in America. Normal rules of evidence and procedure didn’t apply in vice-admiralty courts; the accused wasn’t entitled to a lawyer, for example, and even if he won he couldn’t sue officials for wrongfully prosecuting him, because those officials were given legal immunity. John Adams considered the scheme “the most grievous” of all the abuses that led Americans to declare independence.

But 250 years later, Americans often find themselves in precisely the same situation, due to the growth of bureaucracies that enjoy power to write the rules, investigate alleged violations, and prosecute people in their own special courts — where the accused gets no jury trial and the agency that brings the charges also renders the decision.

Last year, the U.S. Supreme Court declared schemes like this unconstitutional. That case, Securities and Exchange Commission v. Jarkesy, involved the federal agency charged with enforcing the rules of the stock market. It began when the commission accused investment adviser George Jarkesy of violating anti-fraud provisions of federal securities law. Fraud is a crime, which means Jarkesy should have been entitled to a jury trial under the Seventh Amendment. But the commission decided instead to try him in its own in-house administrative hearing, before an administrative law judge appointed by the commission itself.

Jarkesy was found guilty and fined $300,000. The Supreme Court overturned that decision, holding that the government cannot evade the constitutional guarantee of a jury trial by simply reclassifying an ordinary crime as an administrative infraction and then claiming exemption from the jury requirement.

Welcome as the Jarkesy decision was, however, many states continue to employ juryless administrative hearings, even to decide cases that ought to be sent to juries. A case now pending in Arizona is a prime example: In Sync Title Agency v. Arizona Corporation Commission, the state’s version of the Securities and Exchange Commission charged the owners of a business with fraud. It then held its own in-house trial, found them guilty, and imposed tens of thousands of dollars in penalties and restitution, just as in Jarkesy. An Arizona appellate court is reviewing the decision.

What’s striking about Sync Title is that the right to a jury is even more protected under Arizona law than under federal law. One of the basic principles of our constitutional system is that the federal Constitution provides only the minimum protections for individual rights, but states are free to offer stronger guarantees if they choose. When Arizona’s founders wrote the state constitution in 1912, they did just that.

Throughout the 19th century, western states experimented with curtailing juries based on a belief that they often failed to convict even obviously guilty defendants. Beginning in 1864, for example, Nevada allowed for non-unanimous verdicts in some jury trials. California, Idaho, and Utah soon followed. Some states also established a “commission” system in eminent domain cases, where the amount of “just compensation” owed to a property owner would be determined not by a jury but by a group of alleged experts who would inspect the taken land and decide how much the owner should be paid.

But Arizona’s constitution did just the opposite. It mandated that jury verdicts be unanimous and prohibited the state from using commissions in eminent domain cases. Arizona’s framers rejected the argument that these commissions would have greater expertise in figuring out how much land was worth; such a system, they declared, was undemocratic. Commissions, they thought, tended to be biased in favor of the government — exactly like today’s bureaucratic agencies.

Unfortunately, in the century that followed, federal and state law began expanding the power of administrative agencies, precisely on the same theory: that they’re staffed with experts, wiser than ordinary citizens about determining the rules for society and the marketplace. Today, this “administrative state” has grown so large that most of the laws under which we live are written not by the people’s elected representatives but by hired bureaucrats in agencies who are not accountable to the people in any meaningful way. And because these agencies create the rules, decide whether the rules have been broken, and prosecute violations of the rules, they combine the legislative, executive, and judicial powers in ways that are both undemocratic and dangerous to individual freedom.

The Jarkesy decision rightly pushed back against a regulatory system that negates our constitutional principles. But it’s crucial for state courts to take the next step.

Suggested Citation: Timothy Sandefur, Does the Arizona Constitution Allow Juryless Trial by Bureaucrats?, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Jan. 22, 2025), https://statecourtreport.org/our-work/analysis-opinion/does-arizona-constitution-allow-juryless-trial-bureaucrats

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