(dissenting) — The majority holds that CR 38(d), a court rule which provides that a party’s failure to perfect a demand for a jury trial implies that the party has consented to waive his or her right to a jury trial, *509survives Thomas Santilli’s challenge that the rule violates article I, section 21 of our state constitution. In reaching that conclusion, it holds that the aforementioned constitutional provision, which indicates the right to a jury trial “shall remain inviolate, but the legislature may provide . .. for waiving of the jury in civil cases where the consent of the parties interested is given thereto,” is merely to be read as a limitation on the legislature’s power and not a grant of exclusive authority to it. Const, art. I, § 21 (emphasis added); see majority at 500.
I disagree with the majority. In my view, article I, section 21 of the state constitution vests the legislature with the exclusive power to provide for the waiver of a jury trial in civil cases. Consequently, I would hold that CR 38(d), a judicially created provision for the waiving of the right to a jury trial, runs afoul of that constitutional provision. Because the majority opinion flies in the face of the plain language of the state constitution by holding that this court has the coextensive power with the legislature to provide for waiving a jury trial in civil cases, I respectfully dissent.
Citing RCW 2.04.020, .190 and .200, statutes that concern “the role of court rule making and common law in civil procedure,” the majority concludes that the legislature and the Supreme Court have “coextensive authority for control of civil procedure.” Majority at 506, 508. While I do not disagree with this general statement, we must be mindful of the fact that we cannot contradict the state constitution by a court rule. The majority concedes that point. Majority at 504. It is apparent to me that CR 38(d) collides with article I, section 21 of the state constitution. The fact that the legislature has enacted statutes which indicate that this court enjoys coextensive rule making authority with the legislature in the area of civil procedure is really irrelevant to the issue before us. I say that because, where the constitution vests the legislature with the power to act to the exclusion of the other branches of government, which I submit is the case here, another branch may not infringe upon that power. Indeed, “[t]he Legislature is prohibited *510from delegating its purely legislative functions.” Diversified Inv. P’ship v. Dep’t of Soc. & Health Servs., 113 Wn.2d 19, 24, 775 P.2d 947 (1989).
In reaching its decision that this court has the coextensive power with the legislature to provide for the waiving of a jury in civil cases, the majority relies to a large extent on our discussion of another constitutional provision in the case of State ex rel. Foster-Wyman Lumber Co. v. Superior Court, 148 Wash. 1, 267 P. 770 (1928). There, we were asked to decide whether article IV, section 24 of the state constitution, a provision which vests the superior courts with authority to proscribe “uniform rules for the government of the superior courts,” constituted an exclusive grant of authority to the superior courts, thus precluding the legislature from granting this court the right to make rules of pleading, practice and procedure. We said that it did not constitute an exclusive grant of authority to the superior courts and that article IV, section 24 should be interpreted merely as “a limitation upon the courts requiring that the customary rules having to do with the minutiae of court government should be uniform in character.” Foster-Wyman, 148 Wash. at 10. The majority transports our interpretation of article IV, section 24 in Foster-Wyman to its interpretation of article I, section 21 and concludes that “[l]ike section 24, section 21 should be read as a limitation on the power of the legislature, not a grant of exclusive authority.” Majority at 505. In my view, the majority’s analysis is problematic because it fails to recognize that article I, section 21 concerns the waiver of a constitutionally protected right, whereas article IV, section 24 merely accords the superior courts the right to make uniform rules relating to the government of that court. This distinction is significant because this court’s coextensive authority with the superior courts to make rules governing practice and procedure in the superior courts is limited to procedural matters and not matters affecting substantive rights. See State v. Smith, 84 Wn.2d 498, 501, 527 P.2d 674 (1974); see also Philip A. Talmadge, A New Approach to Statutory *511Interpretation In Washington, 25 Seattle U. L. Rev. 179, 181 (2001).
Rather than engaging in a comparison of apples with oranges, I submit that the best source for resolving the issue of constitutional interpretation that is before us is the plain language of article I, section 21 which, as noted above, states that “the legislature may provide . .. for waiving of the jury in civil cases where the consent of the parties interested is given thereto.” (Emphasis added.) While the language of this provision indicates that the legislature can, but need not, provide for the waiver of a jury in civil cases, it does not indicate that the Supreme Court may so provide. In short, I find it significant that article I, section 21 says that the “legislature may provide,” but does not say that the Supreme Court may make a provision for waiver of a jury trial in civil cases. The fact that this court is not granted the right to provide for the waiving of the inviolate right to a jury would appear to foreclose our assumption of that right.
Article I, section 21’s wording is similar to other provisions of the judicial article of our state constitution that vest the legislature with the power to act to the exclusion of the other bodies of government. For example, Washington Constitution article IV, section 1 provides that the judicial power shall be vested in courts of record and in “such inferior courts as the legislature may provide.” (Emphasis added.) Similarly, Washington Constitution article IV, section 2 indicates that the “legislature may increase the number of judges of the supreme court. . . and may provide for separate departments of [the] court.” (Emphasis added.) With respect to these provisions, no one could seriously argue that this court can create an inferior court by court rule. See In re Habeas Corpus of Cloherty, 2 Wash. 137, 139, 27 P. 1064 (1891) (“[t]he natural conclusion from [Washington Constitution article IV, section 1] would be that [an inferior court] must have been created by an act of the legislature” (emphasis added)). Consistent with this view, legislative action was required to enable municipalities to *512create municipal courts. Laws of 1984, ch. 258, § 72; Laws of 1961, ch. 299, § 35. I would submit also that one would be hard pressed to make the case for this court’s right to provide for departments of the court or to increase the number of justices of the Supreme Court, even if the legislature were to delegate those responsibilities to us. In that regard, legislative action was required to increase the size of the Supreme Court from five to seven justices (Laws of 1905, ch. 5, § 1), from seven to nine justices (Laws of 1909, ch. 24, § 1) and to provide for two departments of the court (Laws of 1909, ch. 24, § 3). See also State ex rel. Kurtz v. Pratt, 45 Wn.2d 151, 273 P.2d 516 (1954), in which we held that it was unconstitutional for the legislature to delegate to county commissioners the power to reduce the number of justices of the peace.
My view that article I, section 21 vests the legislature with the exclusive power to provide for the implied waiver of the right to civil trial by jury is buttressed by an early decision of the California Supreme Court. The constitution of that state, like Washington’s, makes the right to a jury trial “inviolate,” and provides that in civil cases the right “may be waived ... in the manner to be prescribed by law.” Former Cal. Const, art. I, § 3 (1849) (emphasis added). In 1855, in the case of Exline v. Smith, 5 Cal. 112, 112 (1855), California’s Supreme Court was asked to determine if the courts of that state had the authority to adopt a court rule providing for the waiving of jury trials in civil cases. The court looked at the words “prescribed by law” that are contained in the aforementioned provision of the California constitution, and concluded that those words “look to actual legislation. . . and in no just sense can be extended to a permission of the exercise of this power to others.” Id. It found, therefore, that a statute that delegated authority to “[t]he Court” to prescribe by rule the means by which one can affect a waiver of their right to a jmy was unconstitutional. Id. Significantly, that court reached the same result in two subsequent cases as well. See People v. Metro. Sur. Co., 164 Cal. 174, 128 P. 324 (1912); Biggs v. Lloyd, 70 Cal. *513447, 11 P. 831 (1886). Although we obviously are not bound by California case law, I find the California Supreme Court’s decision in Exline persuasive. I also believe that it is significant that the California Constitution and the Exline case were available as resources for the drafters of our constitution.2 Moreover, the California approach to waiver of the right to jury trial in civil cases is consistent with our interpretation of other provisions of our constitution when similar questions of construction have been raised.
Article I, section 21 says that the legislature may provide for the waiver of a jury trial in civil cases. It does not say that this court or any other court may so provide. Under the doctrine of separation of powers, which has served our nation and state so well, each branch of government must be careful to not intrude on prerogatives that have been accorded another branch by the constitution. In my judgment the majority decision does just that. Because it does, I dissent.
Smith and Sanders, JJ., concur with Alexander, C.J.
In addition to the fact that the Exline decision and the California Constitution had been published and predated Washington’s Constitutional Convention, the delegates to Washington’s Constitutional Convention were provided with a draft constitution prepared by W. Lair Hill. The Journal of the Washington State Constitutional Convention, 1889 (Beverly Paulik Rosenow ed., 1962). Hill had previously practiced law in California and appeared to be influenced by the provision relating to jury trials, referring to the California Constitution as having “[t]he most advanced constitutional provision upon the subject of trial by jury.” W. Lair Hill, A Constitution Adapted to the Coming State, Morning Oregonian, July 4, 1889, at 9.