(dissenting).
{53} Plaintiffs filed a motion for rehearing, and after considering the motion, I conclude that in our original opinion, we overlooked the applicable standards in determining whether, by their conduct, Plaintiffs waived their constitutional right to a jury trial. I would therefore grant rehearing, reverse, and remand with instructions to grant Plaintiffs a jury trial.
{54} This ease presents the question of whether the district court deprived Plaintiffs of their constitutional right to have a jury resolve disputed facts. Specifically, Allstate raised the affirmative defense that Plaintiffs’ class action claim as to Colossus was barred under the regulatory exemption which provides that the UPA shall not “apply to actions or transactions expressly permitted under laws administered by a regulatory body of New Mexico.” Section 57-12-7. The facts to determine whether the statutory exemption applies are disputed. Nevertheless, after first denying Allstate’s motion for summary judgment on this question, the district court on its own motion ordered that a non jury evidentiary hearing be held. The district court then decided the factual dispute in Allstate’s favor, and dismissed Plaintiffs’ class action claim.
{55} I conclude that the record fails to establish conduct by Plaintiffs which is sufficiently clear and unequivocal to establish a knowing, voluntary, and intelligent waiver of their constitutional right to a jury trial. In other words, the presumption against a waiver of Plaintiffs’ constitutional right to a jury trial was not overcome.
{56} I begin with the constitutional right. The right to a jury trial in a civil case has been guaranteed by the United States Constitution since 1792 in the Bill of Rights. The Seventh Amendment directs, “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” U.S. Const, amend. VII. Since statehood, our constitution has guaranteed that “The right of trial by jury as it has heretofore existed shall be secured to all and remain inviolate.” N.M. Const, art. II, {12. It has long been established that “[T]he right of jury trial is fundamental, [and] courts indulge every reasonable presumption against waiver.” Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 81 L.Ed. 1177 (1937). The reason why there is a presumption against a waiver of the right has also been long established:
The right of trial by jury is of ancient origin, characterized by Blackstone as the ‘glory of the English law5 and ‘the most transcendent privilege which any subject can enjoy’ (Bk.3, p. 379)---- With, perhaps, some exceptions, trial by jury has always been, and still is, generally regarded as the normal and preferable mode of disposing of issues of fact in civil cases at law as well as in criminal cases. Maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care.
Dimick v. Schiedt, 293 U.S. 474, 485-86, 55 S.Ct. 296, 79 L.Ed. 603 (1935).
{57} Plaintiffs filed a timely jury demand and otherwise perfected their constitutional right to a jury trial in accordance with the Rules of Civil Procedure. Moreover, Allstate does not dispute that Plaintiffs’ claim is one which is properly the subject of a jury trial. What Allstate does assert, and what the majority concludes, is that Plaintiffs’ conduct demonstrated and established a waiver of their constitutional right to a jury trial. I respectfully submit that under the appropriate standard, we cannot conclude Plaintiffs waived their constitutional right to a jury trial. This record fails to affirmatively demonstrate a knowing, voluntary waiver of the right.
{58} The party asserting the waiver of a fundamental right has the burden of demonstrating that there was a knowing and voluntary waiver of the right. In reviewing whether this burden has been satisfied, we are required to “indulge every reasonable presumption against waiver.” Aetna Ins. Co., 301 U.S. at 393, 57 S.Ct. 809. In Hull, 2003-NMCA-052, ¶ 10, 133 N.M. 531, 65 P.3d 266, we stated that the right to a jury trial may be waived “if a party’s conduct amply demonstrates that the party intended to waive the right to jury trialf.]” In order for a party’s conduct to “amply demonstrate” an intent to waive a jury trial and overcome the presumption against waiver, the conduct must clearly, explicitly, and unequivocally signal that the constitutional right to a jury trial is waived. See Middle Tenn. News Co. v. Charnel of Cincinnati, 250 F.3d 1077, 1084 (7th Cir.2001) (“Conduct must clearly and explicitly signal a waiver, and there must be clear, unequivocal evidence of a waiver, before we will find that a party intended to waive its right to jury trial.”) (internal quotation marks and citation omitted); Tray-Wrap, Inc., 984 F.2d at 68 (“[T]he conduct said to constitute a waiver [of the right to a jury trial] must be clear and unequivocal, as waivers are never to be lightly inferred.”); Seong v. Trans-Pacific Airlines, Ltd., 41 Haw. 231, 241 (1955) (“[I]n order to create a waiver [of the right to a jury trial] by implication unequivocal acts are necessary to be shown.”) (internal quotation marks and citation omitted). The necessity that conduct meet this standard is reflected in our Rules of Civil Procedure which provide that one way to waive trial by jury is by “oral consent, in open court, entered on the record.” Rule 1 — 038(D)(5).
{59} Allstate raised its regulatory exemption defense in a motion for summary judgment, and Plaintiffs’ response to the motion demonstrated that there were disputed issues of material fact. At a hearing to determine whether Allstate should be allowed to seek an interlocutory appeal of the order denying summary judgment, the district court stated:
My thoughts were there might be a point where we did some kind of hearing on those factual issues that you’ve raised in regard to that report, what it covered, what was presented, and all the other issues that you want to raise in regard to the report itself, so that I could make findings and conclusions in regard to the report and come to a decision on whether the report is binding or not, so that it’s a discretionary call that’s either supported by facts or not supported by facts. And that might be the time for your interlocutory [appeal]
{60} After the order was filed denying Allstate’s motion for summary judgment, Allstate filed a pleading stating it “accepts the Court’s July 23, 2003[,] offer set an evidentiary hearing on Allstate’s [m]otion for [s]ummary [j]udgment.” Allstate further requested that the district court “remove the interlocutory appeal language so that the Court may hold an evidentiary hearing and enter appropriate Findings of Fact and Conclusions of Law in advance of Allstate’s interlocutory appeal from the Court’s denial of Allstate’s Motion for Summary Judgment.”
{61} Plaintiffs objected to Allstate’s attempt to hold an evidentiary hearing on the motion for summary judgment, because the motion for summary judgment was already denied, and because “[t]he evidentiary hearing would invade the rights of the parties to a jury trial.” Plaintiffs further asserted, “Allstate has ignored the jury demand and its role to decide disputed issue[s] of fact.”
{62} After this Court denied Allstate’s application for interlocutory appeal, Allstate filed a “Renewed Motion to Accept the Court’s Offer of an Evidentiary Hearing on Defendant Allstate Insurance Company’s Motion for Summary Judgment.” Again, Allstate requested that the district court withdraw its previous order denying Allstate’s motion for summary judgment and “reissue an Order on Allstate’s Motion, along with appropriate findings of fact and conclusions of law, after the evidentiary hearing.”
{63} Plaintiffs again objected, stating that Allstate was attempting to “repeat its effort at obtaining summary judgment by crafting a phase of litigation that would involve a discovery process, a three-day hearing, the submission of proposed findings of fact and conclusions of law, another summary judgment order, and a potential interlocutory appeal” Furthermore, Plaintiffs argued, “an evidentiary hearing is antithetical to an entitlement to summary judgment}.]”
{64} In reply, Allstate said that it was not asking the district court to reconsider its prior order denying Allstate’s motion for summary judgment. Instead, Allstate asserted it was seeking a hearing “(1) to create a complete and proper record on which the Court of Appeals can consider the issues raised in Allstate’s Motion for Summary Judgment; and (2) to provide clear guidance to the parties regarding the issues that need to be addressed at trail.”
{65} At the hearing on Allstate’s motion, Allstate’s counsel asserted that the district court had previously suggested that an evidentiary hearing would be in order to determine what fact issues there were to determine whether the superintendent of insurance had expressly permitted Allstate to continue to use Colossus as it was using Colossus. Allstate’s counsel argued that holding the hearing would not result in any delay “because assuming after the hearing you identify one or two evidentiary issues, that then we know what to focus on in the trial of that and it will streamline the trial.” Allstate’s counsel continued:
My understanding of this type of proceeding under Rule 56, it is often helpful for courts, even if they deny an important motion for summary judgment where they realize the issues are going to be tried, to take the time to identify the factual issues in dispute and enter findings of fact and conclusions of law. We recognized that when you said on the record this was a pivotal issue and it’s a good thing to do, it’s the province of the Court. This is not a motion for reconsideration. This is a logical step in Rule 56 proceedings where the Court — and I think it’s clear that it’s an important issue, and we obviously think it should have come out the other way — but even if it stays this way, which we assume it will, we think you entering findings of fact and conclusions of law as to exactly what fact issues are in dispute regarding the market conduct exam will expedite the trial and focus it and it’s in the interests of the [e]ourt and all the parties.
{66} At one point, referring to Allstate’s proposed scheduling order which referenced a “Phase One Trial,” Plaintiffs’ counsel stated, “I’m not sure what exactly is being proposed.” Counsel added, “I would suggest if we’re just going to identify issues, I would ask why judicial resources and the parties’ resources are really needed in the formal setting of an evidentiary hearing? It would seem to me this is a matter that could be easily handled at a scheduling conference where the parties would brief in advance the issues, those evidentiary issues that they think need to be tried in a jury trial.” Plaintiffs’ counsel added:
Your Honor, I’m not disputing your validity of what you are saying at all. What I’m suggesting is do we really have to do it in a formal evidentiary hearing setting? Can’t these issues be aired out in another manner? They can submit the best stuff their experts say, we submit the best stuff ours say, we brief it, come in and talk to you about it, and you decide what the factual issues are before the jury?
The district court responded, “I would rather do it formally because it gives you a better record and gives me a chance to make some findings and conclusions that I’m not sure I can do just off of transcripts.”
{67} In the course of discussing a discovery schedule and other matters, Allstate’s counsel said:
[T]here are two fact issues that the trier needs to decide in Phase One and those are the two fact issues that are going to go to the jury in Phase One. Once they decide that, [you] apply the law and ... tell [us] whether or not the [SI] has expressly permitted Colossus. Once the jury decides those two fact issues, once you apply the law, then we all know whether we need Phase Two, because if you say based on how the jury resolved the fact issues that you identified, [i]t’s clear to me that the [SI] did expressly permit Allstate to continue using Colossus as it is doing to this very day with the [SI]’s knowledge, and we don’t need to go to Phase Two[.]
{68} The district court then abruptly, and without notice to either party, stated on its own motion that it intended to decide the factual issues in the following colloquy with Plaintiffs’ counsel:
THE COURT: Let me interrupt you for a second, so I can give you directions. I already know where I’m going, and I see where both of you differ. It’s my intention at the fall hearing this year that the Court will find as a matter of law what the [SI] permitted. So that is not going to be a jury issue that is going to be retried in Phase One that has been referred to by [Defendant. The jury trial that eventually comes up will try Allstate’s use of Colossus. That is what you referred to.
[COUNSEL]: Yes, sir.
THE COURT: Obviously that’s going to-if I find that the Superintendent of Control [sic] allowed the total use that you guys are complaining about, you may not have a case.
[COUNSEL]: Yes, sir.
THE COURT: But if I don’t find that, you are going to go to the jury trial, Phase One of that jury trial, as you referred to it, being the [P]laintiffs-Allstate’s actual use of Colossus—
[COUNSEL]: Okay, sir.
{69} Thereafter, the district court advised Allstate’s counsel as follows:
[COUNSEL]: Your Honor, I wanted to get a little clarification on your ruling which is going to bifurcate so I have a little better understanding. This bench trial in October, if there are any fact issues, you are going to decide them and then apply the law on the [MCE]; is that correct?
THE COURT: We’re going to rule as a matter of law what the [SI] did or did not permit.
[COUNSEL]: Okay.
THE COURT: And that encompasses factual issues that would be the basis of his decision, what facts he had, what’s the interpretative meaning of his letter.
[COUNSEL]: You will make a ruling with findings of fact and conclusions of law that we’ve been talking about, whether [the SI] expressly did it or didn’t expressly permit it?
THE COURT: Right.
[COUNSEL]: Then we’re going to have Phase Two which will be the class issue that will get tried?
THE COURT: And that’s Allstate’s actual use of Colossus.
[COUNSEL]: Right. If it’s needed?
THE COURT: Right.
[COUNSEL]: If you find in our favor in Phase One, we don’t have Phase Two; we just have individual claims?
THE COURT: Right.
{70} In my view, the Plaintiffs’ conduct did not explicitly, clearly, and unequivocally signal an intent to waive a jury trial to a sufficient degree to overcome the presumption against a waiver of the right.
{71} Plaintiffs perfected their constitutional right to a jury trial in accordance with the Rules of Civil Procedure. Allstate’s motion for summary judgment was denied after the district court recognized there were material issues of fact for the jury to decide in determining whether Allstate had a valid statutory defense. When Allstate first requested that the district court conduct a non jury evidentiary hearing related to the disputed facts, Plaintiffs objected in writing because “Allstate has ignored the jury demand and its role to decide disputed issuefs] of fact,” and “the evidentiary hearing would invade the rights of the parties to a jury trial.” This was all Plaintiffs had to do to preserve their objection, and Plaintiffs were not required to repeat the same objection each time the issue was raised.
{72} In DiPirro v. Bondo Corp., 153 Cal.App.4th 150, 62 Cal.Rptr.3d 722 (2007), the plaintiffs filed a complaint for injunctive relief and civil penalties against the defendant, alleging a violation of the California Safe Drinking Water and Toxic Enforcement Act of 1986. Id. at 731. As in this case, the defendants asserted a statutory exemption. Id. at 732. The parties stipulated to a bifurcation of the proceedings and agreed to have trial of the statutory defense heard first. Id. Thereafter, upon motion of the defendant, which the plaintiff objected to in writing, the trial court struck the plaintiffs demand for a jury trial, and the defense was heard by the trial court, sitting without a jury. Id. at 741. The trial court had given a tentative ruling that the defendant’s motion would be granted, and the plaintiff did not appear at the hearing to consider the defendant’s motion. Id. The California Court of Appeals held that the plaintiffs written objection to a denial of his right to a jury trial was itself sufficient to preserve the objection, and appearing at the hearing to repeat the same opposition was not necessary. Id. at 743. Furthermore, the court concluded, no waiver would result from going to trial after an erroneous denial of a jury trial. Id. at 742.
{73} The purpose of the evidentiary hearing was constantly being changed. At first, it was proposed for the district court to determine what the specific issues of fact and law were so this Court could, in turn, decide in an interlocutory appeal whether Allstate was properly denied summary judgment. Then, Allstate proposed that the evidentiary hearing be held as an extension of the summary judgment proceeding to enable the district to make findings of fact and conclusions of law and thereby identify the disputed factual issues for trial. Finally, the district court, on its own motion, and without notice to the parties, announced it would conduct a non jury evidentiary hearing and decide the disputed facts related to Allstate’s statutory defense. The district court and Allstate were keenly aware of Plaintiffs’ jury demand and Plaintiffs’ objection to any invasion of the parties’ constitutional right to a jury trial to decide the disputed factual issues. Under the circumstances, Plaintiffs were not required to repeat the same objections each time the proposed purpose of the non jury evidentiary hearing changed. Id. at 743.
{74} When the district court abruptly, without notice, and on its own motion declared its intention to Plaintiffs’ counsel, the responses, “Yes, sir,” and “Okay, sir,” are at best equivocal. Zidell Explorations, Inc. v. Conval Int’l, Ltd., 719 F.2d 1465, 1469 (9th Cir.1983) holds that such equivocal remarks of counsel will not suffice to waive the right to trial by jury. During the course of a jury trial, the trial court told counsel that it would decide a factual issue (capacity to conspire to violate the federal antitrust laws), not the jury. Id. In response to the court’s ruling, counsel said, ‘Well, if that be the case, that’s fine, Your Honor.” Id. The remarks could have been interpreted either as a waiver of the right to a jury determination of that issue or a “mere acquiescence in the trial judge’s directive.” Id. Since “a waiver of the right to trial by jury on an issue so triable must be clearly proved [and] equivocal remarks will not suffice,” the ambiguity was resolved against inferring waiver. Id.
{75} Plaintiffs’ counsel was silent after the district court stated to Allstate’s counsel its intent to decide the factual issues in a non-jury evidentiary hearing. Silence, however, is inherently ambiguous and of dubious probative value. See State v. Gutierrez, 2007-NMSC-033, ¶ 12, 142 N.M. 1, 162 P.3d 156 (recognizing the “dubious probative value” of silence upon arrest, given its ambiguous nature) (quoting Doyle v. Ohio, 426 U.S. 610, 617 n. 8, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976)); State v. Romero, 94 N.M. 300, 302, 609 P.2d 1256, 1258 (Ct.App.1980) (“[S]ilence is insolubly ambiguous.”) (internal quotation marks omitted). Again, this ambiguity must be construed against a waiver.
{76} Plaintiffs participated in the three-day evidentiary hearing ordered by the district court. I do not deem this compliance with the district court order to constitute a waiver of the jury trial that Plaintiffs demanded. Plaintiffs were not required to walk out of the courtroom and refuse to participate in the court-ordered hearing to preserve their objection. A similar circumstance confronted the Second Circuit Court. After concluding that the trial court erroneously deprived the plaintiffs of their right to a jury trial, the Court stated that the plaintiffs “were not required to walk out of the courtroom rather than to proceed with the bench trial in order to preserve their right to claim on appeal that they had been denied the jury trial that had been demanded.” Gargiulo v. Delsole, 769 F.2d 77, 79 (2d Cir.1985). DiPirro, 62 Cal.Rptr.3d at 742 (concluding that no waiver would result from participating in the hearing after an erroneous denial of a jury trial).
{77} Finally, because a fundamental right is involved, to the extent that there is any doubt about whether Plaintiffs waived their constitutional right to a jury trial, I resolve that doubt in their favor. See id. at 741 (stating that as a basic and fundamental part of our system of jurisprudence, trial by jury must be jealously guarded by the courts, and in case of doubt, the issue should be resolved in favor of preserving a litigant’s right to a jury trial); Zidell Explorations, Inc., 719 F.2d at 1469 (holding ambiguous remarks of counsel construed against a waiver of the right); McAfee v. U.P. Martin, 63 F.3d 436, 437 (5th Cir.1995) (holding that because the right to a jury trial is a fundamental right and courts should indulge every reasonable presumption against waiver, a waiver should not be found in a doubtful situation).
{78} Contrary to the majority, I do not read this record to demonstrate that Plaintiffs’ understanding of the nature of the hearing changed over time, much less that Plaintiffs agreed. At best, this record shows that the court’s intent changed, and that it then directed that a hearing be held accordingly. Contrary to our established standards, the majority would require Plaintiffs to repeatedly repeat their objection that the proposed hearing would violate their constitutional right to a jury trial. Contrary to our established standards, the majority would require Plaintiffs to affirmatively demonstrate that they did not waive their constitutional right to a jury trial. When the district court directed that the nature of the hearing was going to be different than what was originally proposed, and it was going to decide the disputed issues of material fact rather than the jury, it was incumbent upon the district court to secure a knowingly, voluntary waiver of the constitutional right on the record to overcome the presumption against a waiver. This is not mere “iconic formality”; it is nothing more than proper and adequate assurance that Plaintiffs in fact waived their right to have a jury decide the facts of this ease as guaranteed by the United States Constitution and New Mexico Constitution. Merely complying with the order of the district court does not satisfy our standards for waiving a constitutional right.
{79} I conclude that under the applicable standard of review discussed above, the record fails to establish that by their conduct Plaintiffs waived their fundamental, constitutional right to have the jury decide the facts concerning Allstate’s regulatory exemption defense. Since the majority disagrees, I dissent, and express no opinion on the merits of the district court’s decision concerning Allstate’s defense. I would reverse and remand the case to the district court with instructions to grant Plaintiffs a jury trial.