In a pair of briefs filed with the Arizona Supreme Court today, the Goldwater Institute urged the justices to take up two cases involving one of the most sacred of constitutional rights: the trial by jury. That right—which the state constitution pronounces “inviolate”—is routinely undermined by bureaucracies who insist on trying cases in their own in-house administrative “hearings” instead of in ordinary courts. But last year, the U.S. Supreme Court declared this unconstitutional at the federal level in a case called Jarkesy. Now, we’ve asked the state’s high court to implement the same principle at the state level.
The two cases—called EFG and Sync Title—involve allegations of securities fraud brought by the Arizona Corporation Commission, the agency charged with regulating the sale of securities in the state. Fraud is a crime, and therefore such allegations should be brought in a criminal trial before a jury of one’s peers. But instead of proceeding that way, the Commission held in-house hearings before administrative law judges—proceedings where the normal rules of evidence and procedure don’t apply, and where the final decision isn’t made by jurors.
Arizona’s Constitution says that the right to a jury trial is “inviolate.” Courts have held that this means anything that would have resulted in a jury trial before Arizona became a state must also be decided by a jury in today’s world. But the Commission argues that securities fraud is different, because it’s defined by a statute passed long after statehood. What’s more, courts have sometimes held that the jury right doesn’t apply to so-called “public rights” cases, a vaguely defined category of law that includes things like property ownership claims.
But as we explain in our briefs, the “public rights” theory has little resemblance to the garden-variety fraud allegations at issue in the EFG and Sync Title cases. And while “securities fraud” may be defined in a statute, that doesn’t mean the government can ignore the jury trial right by simply passing new statutes that overlap with long-understood crimes. On the contrary, the history of the state constitution shows that while there were some efforts to reduce the role of juries in the late nineteenth century, by the time Arizona became a state, those experiments had largely been abandoned. The authors of Arizona’s Constitution, in fact, explicitly abolished that era’s version of “administrative hearings”—by requiring a jury instead of a commission in eminent domain cases.
The administrative state is one of the most dangerous threats to our constitutional freedoms—and to democracy itself, because it empowers bureaucracies to make the rules, prosecute alleged violations of those rules, and punish people it claims violate the rules, contradicting the basic principle of separation of powers. Worse, it’s managed by unelected officials who claim to be more “expert” in how we run our lives than we are. Fortunately, our Constitution pronounces certain rights “inviolate”—and that must mean it protects us against these bureaucrats as much as against any other branch of government.
You can read our briefs here and here, and you can learn more about our work against the administrative state here.
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.
