dissenting.
The plain language of the Arkansas constitution places authority in both the General Assembly and this court to determine how a party may waive his or her right to a jury trial. I would affirm the circuit court because predispute contractual jury-trial waivers are constitutionally permissible if entered into knowingly and voluntarily.
Article 2, section 7 of the Arkansas Constitution provides that “a jury trial may be waived by the parties in all cases in the manner prescribed by law” Ark. Const. art. 2, § 7 (emphasis added). The majority oversimplifies the issue before us by explaining that two cases have addressed the issue, Mode and Venable. Mode v. Barnett, 235 Ark. 641, 361 S.W.2d 525 (1962); Venable v. Becker, 287 Ark. 236, 697 S.W.2d 903 (1985). In Mode this court held it was constitutional for the General Assembly to limit the right to a jury trial. Similarly, in Venable, we held that this court, through the Arkansas Rules of Civil |2i Procedure, could limit the right to a jury trial. The majority proceeds to determine whether there is a statute or rule. of procedure providing for prelitigation jury waivers and concludes there is not. Their misstep is based on the assumption that, because Mode and Venable identify two ways in which this court has upheld limitations on one’s -constitutional right to a jury, this court is excluded from upholding other limits.
While the majority’s analysis may appear to be straightforward, 'it glosses over the appellant’s argument that “prescribed by law” “obviously” refers only to statute; ry law. The appellant is wrong. The critical first step, which the majority does not take, in analyzing the appellant’s argument is to look at the plain meaning of the word “law.” The plain definition of “law” includes not only statutes and rules, but also common law. Black’s Law Dictionary 1015 (10th ed. '2014) (defining “law” as “the aggregate of legislation, judicial precedents, and accepted legal principles”). This leads to the conclusion that “prescribed'by law” is broader than the majority’s implication that it is solely “prescribed by statute or rule.”
Additionally, article 2’s construction supports this, particularly given the interpretative presumption that, “different words have different meanings.” Scalia and Garner explain, “A word or phrase is presumed to bear the same meaning throughout a text; material variation in terms suggests a variation in meaning.” Antonin Scalia & Bryan A. Garner, Reading the Law: The Interpretation of Legal Texts 170 (2012). The drafters of article 2 materially differentiated who could prescribe limits on constitutional rights by alternating the phrases “by the General Assembly” and “by law”. For example, section 8 of 122article 2 provides limits on criminal charges “as the General Assembly shall make cognizable.” Ark. Const. art. 2, § 8. Similarly, section 11 discusses how habeas corpus privileges may be suspended only “by the General Assembly.” Ark. Const. art. 2, § 11. As in article 2, section 7, article 2 section 10 includes the phrase “prescribed by law” in addressing the rights of defendants. Ark. Const, art. 2, § 10. The writers’ use of “prescribed by law” in some instances and “by the General Assembly” in others strongly suggests that “prescribed by law” is broader than statutory law. The variation in terms throughout article 2 cannot be considered superfluous. See Parsons v. Associated Banc-Corp., 374 Wis. 2d 513, 531, 893 N.W.2d 212 (2017) (holding that a prelitigation jury waiver was constitutional because the phrase “prescribed by law” in the Wisconsin Constitution includes judicial precedent).
Finally, once established that article 2, section 7’s use of “law” includes common law, the next step, which the majority also does not take, is to determine whether our common law supports the appellees’ argument that prelitigation contractual jury-trial waivers are permissible as long as they are entered into knowingly and voluntarily. This adheres to decades of common-law jurisprudence, which provides that parties generally are free to contract upon any terms not contrary to statute or public policy. Pest Mgmt, Inc. v. Langer, 369 Ark. 52, 250 S.W.3d 550 (2007); Ferguson v. United Commercial Travelers of Am., 307 Ark. 452, 821 S.W.2d 30 (1991). In Arkansas, it is a core principle of contract law that we allow parties to enter into contracts that control the manner in which their future and potential disputes will be resolved, including the forum and governing law. SD Leasing, Inc. v. Al Spain and Assocs., Inc., 277 Ark. 178, 640 S.W.2d 451 (1982) (enforcing lease agreement containing clause in which the parties expressly agreed to be subject to the jurisdiction of the State of Arkansas). This likewise should apply to prelitigation contractual jury-trial waivers.
Consequently, I would conclude that article 2, section 7 of the Arkansas Constitution does not limit permissible prelitigation jury-trial waivers to those set forth by statute or rule. Applying our common-law contract principles, prelitigation contractual jury-trial waivers are permissible if entered into knowingly and voluntarily. Therefore, I would hold that the circuit court did not clearly err in determining that Tilley’s waiver of a jury trial was knowingly and voluntarily made. Accordingly, I dissent.
Womack, J., joins.