dissenting.
Article 1, Paragraph 9 of the New Jersey Constitution states: “The Legislature may provide that in any civil cause a verdict may be rendered by not less than five-sixths of the jury.” (Emphasis added). Despite that language, the majority concludes that parties to a litigated civil case are authorized to decide between themselves on the number of jurors that will qualify as a majority for rendering a verdict. The principle adopted today by the majority has allowed a three-fourths majority verdict in the case before us, but tomorrow parties will be free to agree privately to be bound by three-two and five-four verdicts. I do not read Article 1, Paragraph 9 of the State Constitution to allow private litigants, who are angling for their own perceived advantages, to alter the very structure of a civil jury trial — the requirement that at least five-sixths of the jury concur on a verdict. More importantly, for purposes of constitutional interpretation, I do not believe that the drafters of the 1947 Constitution had in mind the result reached by the majority today. For those reasons, I respectfully dissent.
The delegates to the 1947 Constitutional Convention understood that at that time unanimity was required in civil jury trial verdicts. See 1 Proceedings of the State of New Jersey Constitutional Convention of 194-7 609-13. The debates surrounding the adoption of Article 1, Paragraph 9, centered on whether the Legislature should be authorized to enact a statute that allowed less than unanimity. Id. at 612-13. The delegates were wary about moving off the unanimity requirement. Id. at 613-14. When an amendment was first introduced that would have authorized the Legislature to allow for a five-sixths verdict, the delegates handily voted it down. Id. at 614. The next day, when another amendment was offered that would have allowed a three-fourths verdict, the delegates balked. Id. at 684-86. Afterwards, that amendment was revised to permit the Legislature to provide for a verdict by not less than five-sixths of the jury. Id. at 686-88. It then passed. Id. at 688.
*230The drafters wanted to give the Legislature the option of experimenting with a less than unanimous verdict in recognition that some deadlocked verdicts are caused by an irrational, arbitrary, or even dishonest juror. Id. at 686-87. However, having taken such pains to carve an exception out of the unanimity requirement by allowing a verdict “by riot less than five-sixths of the jury,” did the convention delegates conceive that private litigants would be permitted to arrange for a verdict by less than five-sixths of the jury? That seems unlikely.
The majority cannot cite to a New Jersey case decided before the passage of Article 1, Paragraph 9 that allowed for a less than unanimous civil jury verdict, whether agreed upon by the parties or not. Margolies v. Goldberg, 101 N.J.L. 75, 76-77, 79, 81-82, 127 A. 271 (E. & A. 1925), cited by the majority, ante at 224-25, 876 A.2d at 791, upheld a verdict in which the parties stipulated to a ten-person jury, rather than the twelve-person jury required at the time. But that case in no way suggested that a less than unanimous verdict would have been permissible.
The framers of our State Constitution, I believe, made a value judgment that verdicts rendered by less than five-sixths of the jury were not sufficiently reliable to be sanctioned by our system of civil justice. Although it is true that the parties can waive a jury trial for a bench trial, in such circumstances the decision, in effect, is a unanimous one by a trained and experienced factfinder. It also is true that the parties can agree to arbitration under terms that they deem appropriate. But that does not mean that the parties can rearrange the structure of a civil jury trial within our halls of justice.
The majority rightly points out that there are many rights that can be waived by the parties to a litigated case. Ante at 224-26, 876 A.2d at 791-92. I believe, however, that it is one thing for a party to waive a right and another thing to permit that party to alter the structure of the trial itself. We would not allow the parties to waive the recording of the trial or the administration of *231oaths to witnesses, or to agree upon the racial, religious, or gender composition of the jury, or to forego the application of the rules of evidence. No one would suggest, I think, that a less than unanimous verdict in a criminal case would be permissible, even if the parties agreed. In my opinion, the framers held the view that a civil jury trial should be decided by a verdict of not less than five-sixths of the jury and said so in Article 1, Paragraph 9. Therefore, any statute, rule, or Appellate Division opinion that says otherwise is in conflict with our State Constitution.
For those reasons, I agree with Judge Fisher’s thoughtful opinion below and respectfully part from my colleagues in the majority.
Justice LONG joins in this dissent.
For affirmance — Chief Justice PORITZ and Justices LaVECCHIA, ZAZZALI, WALLACE and RIVERA-SOTO — 5.
For reversal — Justices LONG and ALBIN — 2.