(dissenting) — The constitution of our state does not mince words on the subject at hand. “The right of trial by jury shall remain inviolate . . . .” Wash. Const, art. I, § 21. This court has regularly demonstrated that it, too, does not mince words. “The term ‘inviolate’ connotes deserving of the highest protection. . . . For such a right to remain inviolate, it must not diminish over time and must be protected from all assaults to its essential guaranties.” Sofie v. Fibreboard Corp., 112 Wn.2d 636, 656, 771 P.2d 711, 780 P.2d 260 (1989) (citation omitted). The right of trial by jury “is a valuable right, jealously guarded by the courts.” Watkins v. Siler Logging Co., 9 Wn.2d 703, 710, 116 P.2d 315 (1941). “The right of trial by jury is a constitutional right, and is not to be denied a litigant who insists upon it and complies with the statutes relating thereto.” O’Connor v. Force, 58 Wash. 215, 217-18, 108 P. 454, 109 P. 1014 (1910).
It is well settled that in determining whether parties are entitled to avail themselves of this constitutional protection, this court looks at the right as it existed in 1889. Sofie, 112 Wn.2d at 645; Majority at 266. It is equally well established that the question of damages is an integral component of the right to jury trial and thus falls squarely within the scope of this part of our constitution. So fie, 112 Wn.2d at 645; Majority at 267.
The majority avoids what would appear to be the logical outcome of the above—that petitioners are entitled to a jury trial on the amount of damages in the Washington courts—by finding that no question of damages exists. Majority at 269.
However, this disappearing act is made possible by the application of the doctrine of collateral estoppel. The majority finds that the case at hand meets the following four-part test for collateral estoppel as set out in recent deci*271sions of this court: (1) An identical issue had been decided; (2) the prior adjudication must have ended in a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with the party to the prior adjudication; and (4) application of the doctrine does not work an injustice. Majority at 262-63. However, the third requirement for collateral estoppel as set out by the majority, and by this court in other recent cases, is far different from the historical requirement of identity “ ‘of persons and parties.’ ” Bordeaux v. Ingersoll Rand Co., 71 Wn.2d 392, 396, 429 P.2d 207 (1967) (quoting Northern Pac. Ry. Co. v. Snohomish County, 101 Wash. 686, 172 P. 878 (1918)).7
As “[o]ur basic rule in interpreting article 1, section 21 is to look to the right as it existed ... in 1889,” So fie, 112 Wn.2d at 645, to understand petitioners’ rights in the case at hand, we must examine the doctrine of collateral estoppel as it existed in 1889. And at that time mutuality of all parties was the accepted rule. For example in 1922 this court refused to allow a decision in a federal court to be used against a party to the federal action by those who were not parties to that federal action. Instead, this court said it is “[t]he elementary rule that estoppels must be mutual to be effective . . . .” State ex rel. First Nat’l Bank v. Hastings, 120 Wash. 283, 311, 207 P. 23 (1922). Only *272those who would be bound by the previous judgment may seek to use it as an estoppel. Id. See also Meeker v. Mettler, 50 Wash. 473, 479, 97 P. 507 (1908) (Rudkin, J., dissenting) (noting “elementary rule that estoppels must be mutual .... It is one of the comparatively few questions upon which there is no division of opinion.”); Jack H. Friedenthal et al., Civil Procedure § 14.14, at 688 (2d ed. 1993) (noting historical rule that “[o]nly parties and their privies may be bound or may take advantage of a judgment.”); Philip A. Trautman, Claim and Issue Preclusion in Civil Litigation in Washington, 60 Wash. L. Rev. 805, 839 (1985) (noting that parties and their privies not bound by a judgment generally could not benefit from it “[u]ntil the last two decades”).
It was first in 1942 that the California Supreme Court declined to require mutuality of parties in a collateral estoppel case. Bernhard v. Bank of Am. Nat’l Trust & Sav. Assoc., 19 Cal. 2d 807, 122 P.2d 892 (1942). Yet, 25 years later, this court stated that collateral estoppel could not be asserted as a defense by a party who had been a stranger to the prior proceeding. Bordeaux, 71 Wn.2d at 396. Shortly after Bordeaux, this court questioned the wisdom of the doctrine of mutuality, but declined to decide the issue. Henderson v. Bardahl Int’l Corp., 72 Wn.2d 109, 116, 431 P.2d 961 (1967). Following this dicta an appellate court abandoned mutuality three years later. Lucas v. Velikanje, 2 Wn. App. 888, 894, 471 P.2d 103, review denied, 78 Wn.2d 994 (1970). It was later in that decade that we first allowed an issue to be precluded without mutuality of parties. Kyreacos v. Smith, 89 Wn.2d 425, 428, 572 P.2d 723 (1977).8
The majority, however, does not examine the historical question involved, despite its conceptual fidelity to historical analysis. See Majority at 266. Instead, it frames the *273question in the present case as “whether an issue of fact continues to exist after it has been fully litigated and determined in a prior case.” Majority at 267. Were this the question, the analysis would be persuasive. But, as the majority notes, there is only one question that matters in this case: What was the right to a jury trial at the time of the constitution’s adoption in 1889? Majority at 266. There is no doubt, as the majority admits, that the Nielsons would have been entitled to a jury trial on the question of damages. Majority at 263. There is equally no doubt that respondents in 1889, due to a lack of mutuality, would have been unable to raise the doctrine of collateral estoppel to deny the Nielsons’ their constitutional right. Yet, the majority estops the Nielsons.
Such erosion of a fundamental constitutional right through the application of modern doctrine is precisely the evil against which Justice Utter warned in Sofie: “It would defeat the intention of our constitution’s framers to interpret an essential right so that it slowly withers away.” Sofie, 112 Wn.2d at 649. See also State v. Strasburg, 60 Wash. 106,116,110 P. 1020 (1910) (noting that the inviolate right of jury trial could be destroyed by the process of limiting the questions of fact to be submitted to the jury).
The majority’s additional reliance on the Seventh Amendment jurisprudence of the United States Supreme Court is disproportionate to the authority it offers. See Majority at 267-68 (applying reasoning of Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979) to the case at hand). The Seventh Amendment to the United States Constitution, which is what the Supreme Court examined in Parklane, is written in general, compromising language. Colgrove v. Battin, 413 U.S. 149, 155, 93 S. Ct. 2448, 37 L. Ed. 2d 522 (1973). Although part of the federal constitution, the right protected is a “common law” right, not a constitutional one. Id. at 155-57. The jury trial right of section 21 of our state constitution, on the other hand, is a constitutional protection, and not subject to common law changes. Sofie, 112 Wn.2d at 652.
*274The right to a jury in a civil trial in this state “is protected solely by the Washington Constitution . . . .” Sofie, 112 Wn.2d at 644.9 While it is true that this court recognized that decisions of the United States Supreme Court provide “some insight,” id. at 647, the insights gleaned in Sofie dealt with historical analysis, not current opinion. Nothing in Parklane provides the illumination the majority discerns as it regards the rights guaranteed by the Washington Constitution. In fact, Parklane makes the dissent’s case for us. Under our state constitution and the precedents of this court, what the United States Supreme Court may currently think of the mutuality doctrine is irrelevant. The question is what our state’s rule was in 1889. And, as the United States Supreme Court noted in 1979, mutuality of parties was the rule “[ujntil relatively recently.” Parklane, 439 U.S. at 326-27.
Against the uncompromising mandate of our constitution, we are faced with the judicially invented doctrine of civil collateral estoppel. See Trautman, supra, at 842. The policy arguments favoring this doctrine are judicial economy and the prevention of inconvenience, and even harassment, of parties. Reninger v. Department of Corrections, 134 Wn.2d 437, 449, 951 P.2d 782 (1998). Accepting, arguendo, the validity of such arguments does not change the proper outcome of this case.10 Valid policy arguments existed in favor of the Legislature’s attempt to limit jury determination of noneconomic damages under RCW 4.56.250. Sofie, 112 Wn.2d at 638. That did not stop this court from finding such limitations a violation of article I, section 21 of our state constitution. Id. at 669.
During the debate on RCW 4.56.250 then-Senator Talmadge noted that
[t]he Constitution of this state . . . talks about the right to *275trial by jury being inviolate, not being something that we can invade as members of the Legislature, and when you start to put limitations on what juries can do, you have, in fact, invaded the province of the jury and have not preserved the right to a trial by jury inviolate.
Sofie, 112 Wn.2d at 656 (quoting Senate Journal, 49th Leg. 449 (1986)). The judiciary, entrusted with the responsibility of upholding the constitution, certainly has no more right than the legislature to allow its own needs, wants, policy arguments, or doctrines to supersede the rights enshrined in that document. See Wash. Const, art. I\£ § 28 (requiring all judges to take and subscribe an oath to support the Constitution of the State of Washington). “The provisions of this Constitution are mandatory, unless by express words they are declared to be otherwise.” Wash. Const, art. I, § 29. Cf. Kennedy v. Real Estate Salesmen Local 154A, 53 Wn.2d 223, 224, 332 P.2d 939 (1958) (“This is a constitutional court created by the Washington constitution . . . and its jurisdiction, both original and appellate is derived from [the constitution].”).
No measure of “judicial economy” is adequate to induce the sale of any constitutional right. The judiciary exists to insure such rights, and the convenience of the judiciary is clearly subservient to this duty. “[W]hile we strive for efficiency in courts ... we must also fashion procedures which adequately protect the constitutional right to jury trial.” City of Seattle v. Williams, 101 Wn.2d 445, 452, 680 P.2d 1051 (1984).
A judicially created doctrine must give way to the mandate of our constitution. Our constitution guarantees that the right to trial by jury must be inviolate, and this court has consistently held that the right as it existed in 1889 is the guiding point for the judiciary. In 1889 petitioners’ right to a jury trial on damages could not be estopped by respondents who had been strangers to the earlier federal action. Nor are petitioners estopped in the case at hand, and summary judgment on the question of damages was therefore improper.
*276Having determined that the application of the doctrine of collateral estoppel in this case violates our state constitution, and therefore works a grievous injustice against petitioners, I would hold that the doctrine of collateral estoppel is not available to respondents. Therefore, I see no reason to consider the question of whether or not a settlement during the appeals process renders an earlier judgment “final” for purposes of that doctrine.
No Waiver
Determining that the Nielsons had no constitutional right to a jury trial, the majority decides not to address the question as to whether they had waived such a right. Majority at 269. However having reached the opposite conclusion regarding the meaning of our state’s constitution, I feel an obligation to examine this issue as well.
The Court of Appeals held in a single paragraph, supported by neither analysis nor citation, Nielsons had waived their jury trial right: (1) by electing to proceed in the federal forum, where there is no jury trial right, without seeking a continuance; and (2) by failing to seek supplemental jurisdiction over the state claim and requesting a jury trial on the state issue in federal court. Nielson v. Spanaway Gen. Med. Clinic, Inc., 85 Wn. App. 249, 255-56, 931 P.2d 931 (1997).
Certainly a party may waive its jury trial right. State v. Lane, 40 Wn.2d 734, 736, 246 P.2d 474 (1952). However, a waiver must be intelligent, voluntary, and free from improper influence. Id. at 737. “[A] court must indulge every reasonable presumption against waiver of fundamental rights.” City of Bellevue v. Acrey, 103 Wn.2d 203, 207, 691 P.2d 957 (1984) (citation omitted) (holding that criminal defendant’s actions at trial could not be imputed to manifest waiver of jury trial right).
Most fundamentally there can be no waiver here because such a claim against the federal government must proceed *277in a federal forum by bench trial.11 There is no choice, and where there is no choice there can be no waiver.12
Moreover, Nielsons’ decision to not seek a continuance of their federal suit, does not satisfy the requirements for waiver of a constitutional right either. The Nielsons had, in fact, filed their state suit before the federal suit, although the latter was concluded before the former trial began. Majority at 259-60. The Court of Appeals held in this case that in order for a permanently brain damaged infant to maintain her constitutional right to a jury trial, she would need to delay her opportunity to receive necessary moneys that might be available to her under the Federal Tort Claims Act. It defies my comprehension that any court impose a requirement of delayed just compensation as a condition precedent to the exercise of an explicit constitutional right. Such is not the stuff of which waiver is made.
While it is true the Nielsons could have combined their state action into the federal lawsuit, and requested a jury trial on their state claim, 28 U.S.C. § 1367(a), such does not yield a waiver of this absolute right to proceed independently in state court to redress a state claim under state law. As Justice Holmes observed, “the plaintiff is absolute master of what jurisdiction he will appeal to . . . .” Healy v. Sea Gull Specialty Co., 237 U.S. 479, 480, 35 S. Ct. 658, 59 L. Ed. 1056 (1915). See also Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 810 n.6, 106 S. Ct. 3229, 92 L. Ed. 2d 650 (1986).13
To hold, as does the appeals court, because the Nielsons *278chose to exercise their jurisdictional rights as plaintiffs, they had waived their constitutional rights as citizens of this state is incomprehensible.
Concluding the Nielsons had a constitutional right to have a jury determine damages, and that they did not waive this right, I would reverse the decision of the trial court which the appeals court affirmed, and remand for a trial by jury.
Johnson and Alexander, JJ, concur with Sanders, J.
In its decision, the majority states that only the second and fourth elements are disputed here. Majority at 263. However, the Nielsons clearly challenged the constitutionality of the application of collateral estoppel in this case. Majority at 264. See also Pet. for Review at 11. Finding the doctrine applicable in this case, the majority sees no constitutional right to a jury trial on the issue, and no injustice. The majority views the question of injustice through the prism of opportunity to litigate a claim. Majority at 264-65. However, the question is not whether or not the Nielsons had a full and fair opportunity to litigate their claim before a federal judge. Rather, the question is whether they had a constitutional right to have their claim for damages in a state court determined by a jury. As I find that petitioners have such a constitutional right, I also find that the denial of that right to effect judicial economy does work an injustice. Cf. Kennedy v. City of Seattle, 94 Wn.2d 376, 378, 617 P.2d 713 (1980) (holding that it would be “manifestly unjust” to use collateral estoppel to allow the constitutionality of a statute to be determined by an unappealed municipal court ruling). However, I proceed under the third prong of the collateral estoppel test as it is the analysis of the historical question of parties entitled to assert estoppel that establishes petitioners’ constitutional right in this case.
In Kyreacos the plaintiff was estopped from asserting a claim under the doctrine of respondeat superior against the City of Seattle, despite the fact that she was neither a party nor in privity with a party to the earlier suit. This, as the court noted, was “a most unique case which must be confined to its peculiar facts and to its procedural posture.” Kyreacos v. Smith, 89 Wn.2d 425, 428, 572 P.2d 723 (1977).
As Sofie noted, the Seventh Amendment to the United States Constitution is not even applicable to the States. Sofie, 112 Wn.2d at 644. See also Chicago Rock Island & Pac. Ry. Co. v. Cole, 251 U.S. 54, 56, 40 S. Ct. 68, 64 L. Ed. 133 (1919).
I wish to emphasize that I am merely hypothesizing here, and do not wish to imply that petitioners in any way, manner, or form have sought to harass respondents.
The preclusion of a jury under the federal statute is part and parcel of the Faustian bargain that is the Federal Torts Claim Act (FTCA): Plaintiffs have no right to a jury trial, while the federal government waives sovereign immunity. See George v. United States, 196 F.2d 445, 450 (9th Cir. 1952).
Even a federal court applying a Seventh Amendment analysis would be unlikely to find waiver on these facts. For example, a prisoner who had lost his FTCA claim against the federal government in a bench trial was held not to be collaterally estopped from relitigating the same facts before a jury in a Bivens (Bivens v. Six Unknown Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971)) action against two federal employees. Burns v. Lawther, 53 F.3d 1237, 1242 (11th Cir. 1995) (per curiam).
A federal court may reject a state plaintiffs request for supplemental jurisdiction. 28 U.S.C. § 1367(c). See also United Mine Workers of Am. v. Gibbs, 383 *278U.S. 715, 726, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966) (“[P]endent jurisdiction is a doctrine of discretion, not of plaintiffs right.”). Thus there is no guarantee that Judge Dwyer would even have allowed the double trial respondents claim the Nielsons were obligated to request.