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LaManna v. Proformance Insurance Co.7/14/2005
t of six persons unless the court for good cause shown shall order a jury of 12 persons[,]" and Rule 1:8-2(c) required that "the verdict of finding shall be by five-sixths of the jurors unless the parties stipulate that a verdict or finding by a smaller majority of the jurors shall be taken as the verdict . . . ." Subsection C was amended in 1998 to provide that the stipulation be "on the record." R. 1:8-2(c)(3)(1999).
B.
Preliminarily, we acknowledge that " ur courts have demonstrated a steadfast adherence to the principle 'that every possible presumption favors the validity of an act of the Legislature.'" State v. Trump Hotels & Casino, 160 N.J. 505, 526 (1999) (quoting New Jersey Sports & Exposition Auth. v. McCrane, 61 N.J. 1, 8 (1972)). We exercise "extreme self restraint" before using "the judicial power to invalidate a legislative act[,]" and we will not declare a legislative act void "unless its repugnancy to the Constitution is clear beyond a reasonable doubt." Ibid. (internal quotations omitted). "The polestar of constitutional construction is always the intent and purpose of the particular provision." State v. Apportionment Comm'n, 125 N.J. 375, 382 (1991).
C.
It is obvious from the clear and unambiguous language of Article I, paragraph 9, that the drafters of the 1947 Constitution intended to make the right to a trial by jury inviolate and to authorize the Legislature to provide that a verdict in a jury trial may be rendered by not less than a five-sixths majority. Those constitutional guarantees, however, do not prohibit the Legislature from authorizing the parties to agree to a different number of jurors or to agree to a lesser majority verdict than five-sixths.
Constitutional rights generally may be waived. Mt. Hope Dev. Assocs. v. Mt. Hope Waterpower Project, L.P., 154 N.J. 141, 147 (1998) (citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966) (allowing waiver of privilege against self-incrimination)); Sexton v. Newark Dist. Tel. Co., 84 N.J.L. 85 (1913), aff'd, 86 N.J.L. 701 (1914) (allowing waiver of right to trial by jury)); State v. Johnson, 68 N.J. 349, 353 (1975) (concluding validity of consent to search "must be measured in terms of waiver"). In Mt. Hope, we addressed the argument that the Alternative Procedure for Dispute Resolution Act (Act), N.J.S.A. 2A:23A-1 to -19, infringed on an individual's constitutional right to appeal and on the Court's rulemaking authority. Supra, 154 N.J. at 145-53. In finding no constitutional infirmity, we declared that "'a party may, by express agreement or stipulation before trial or judgment, waive his right to appeal '" even though our Constitution grants parties such a right. Id. at 147 (quoting Harmina v. Shay, 101 N.J. Eq. 273 (E. & A. 1927)). We emphasized that parties invoking arbitration to decide a dispute "waive their [constitutional] right to trial by jury[,]" and we found no distinction between arbitration and the Act "that would prohibit parties who invoke the from likewise waiving those rights." Id. at 149.
In Margolies v. Goldberg, 101 N.J.L. 75, 76-77 (E. & A. 1925), the Court of Errors and Appeals addressed the defendant's argument that he had been deprived of his constitutional right to a trial by jury when the trial court excused two jurors and permitted ten jurors to decide the case when, at the time, the Constitution provided for a twelve-person civil jury trial. The Court quoted approvingly the observation in Sexton, supra, 84 N.J.L. at 101, that " he practice of waiving a trial by jury in civil cases or proceedings in this state is of such common occurrence as to attract no attention, and it has never been doubted in thi
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