dissenting:
The district courts did not abuse their discretion in denying the petitions for writs of prohibition or, in the alternative, writs of mandamus.
Pursuant to NRS 73.010, under certain criteria, the justices’ courts may treat actions where the amount claimed does not exceed $5,000 as a small claims action. NRS 73.060 further provides that general provisions of law applicable to proceedings in justices’ courts not in conflict with NRS Chapter 73 shall apply. Therefore, we must examine whether there is a constitutional right in Nevada to jury trials for small or minor claims.
Article 1, Section 3 of the Nevada Constitution provides that “[t]he right of trial by Jury shall be secured to all and remain inviolate forever.” We have previously concluded that this provision refers to the right of trial by jury “as it existed at the time of the adoption of the Nevada Constitution, and does not confer any *10right thereto where it did not exist at that time.”1 The provision does not extend the right to a jury trial, but merely preserves the right to trial by jury as it existed at common law.2 Therefore, the types of cases in which a party was entitled to a jury trial before the Nevada Constitution’s adoption remain subject to a jury trial right; other cases in which a party was not entitled to a jury trial do not become subject to that right through the constitutional provision.3
Courts utilize a “historical analysis” to determine whether a jury trial is required.4 First, the court must determine if the present cause of action “ ‘was tried at law at the time of the founding or is at least analogous to one that was.’”5 Next, the court must determine whether the nature of the relief sought is legal or equitable.6
Under the common law, “tort actions were brought under the writs of trespass and trespass on the case.”7 “Trespass remedied direct, forcible tortious injuries, while the later developed trespass on the case remedied indirect or consequential harms.”8 Tort actions involving a claim for money damages were generally triable to a jury at common law.9 However, if the amount of the claim was insignificant, a jury trial was not required.10
“It had been a well established practice in England, and in our early colonial times, that actions for small demands were triable before certain officers having a limited jurisdiction, without a jury .... The sum of forty shillings was fixed upon, then and for many years subsequently, as the dividing line between what was petty and insignificant, and what was of importance in point of value.”11
Therefore, cases involving minor claims do not have a right to a jury trial under either the United States Constitution or the *11Nevada Constitution because no such right existed under the common law. The Seventh Amendment of the United States Constitution adopted this distinction between petty, insignificant claims and important claims.12 The Seventh Amendment of the United States Constitution provides that “[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.”13
The question becomes whether the constitutional right to a jury trial is confined to a strict equivalent of forty shillings under English common law or whether the determination of what is a minor claim, not requiring a jury trial, is flexible, allowing for changing social and economic conditions.14
“The ‘common law,’ expressly referred to in the federal clause and implicitly preserved in [Nevada’s Constitution] is not a ‘fixed and immutable body of unchanging rules,’ but was and is characterized by ‘occasional flexibility and capacity for growth in order to respond to changing social pressures.’ ”15 Even in colonial times, the jurisdictional limitation for nonjury trials was altered by the legislatures.16 Further, the United States Supreme Court has stated, “It never could be the intention of the constitution to tie up the hands of the legislature, so that no change of jurisdiction could be made, and no regulation even of the right of trial by jury could be had.”17
The Legislature set $7,500 as the jurisdictional limit for personal injury claims heard in the justices’ court.18 The Legislature also established guidelines for jury trials in the justices’ courts.19 Justices’ Courts Rule of Civil Procedure (JCRCP) 38(a) provides that “[t]he right of trial by jury as declared by the Constitution of the State or as given by a statute of the State shall be preserved to the parties inviolate.’ ’ This indicates an intent for jury trials to be available in the justices’ courts, while at the same time limiting the right to a jury trial where the claim is $5,000 or less.
*12In response to an order from the district court, the justices’ courts, in 1999, established a jurisdictional threshold amount of more than $5,000 in “provable damages”20 for holding jury trials. The district court ruled that this jurisdictional limit for jury trials in the justices’ courts was a reasonable limit since $5,000 is the limit for small claims actions. This limitation is based on an objective criterion, the amount set by the Legislature for small claims.
The justices’ courts determined on their own initiative that the right to a jury trial should be restricted to cases involving ‘ ‘provable damages” of more than $5,000. JCRCP 39(a) adopted by this court states in pertinent part:
When trial by jury has been demanded as provided in Rule 38, the action shall be designated as a jury action. The trial of all issues so demanded shall be by jury, unless ... (2) the court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist under the Constitution or statutes of the State.
Similarly, in criminal cases, when the Sixth Amendment of the United States Constitution applies directly to state court actions,21 the right to a trial by jury depends on whether the offense is characterized as “petty” or “serious.”22 “In recent decisions, the United States Supreme Court has increasingly relied upon the objective criterion of the maximum possible penalty in deciding whether to characterize an offense as ‘petty’ or ‘serious.’ ”23 The Court has concluded that whenever the maximum authorized prison term for an offense is greater than six months, the defendant is entitled to a jury trial.24 The Court stated that “the disadvantages of such a sentence, ‘onerous though they may be, may be outweighed by the benefits that result from speedy and inexpensive nonjury adjudications.’ ”25
In Blanton v. North Las Vegas Municipal Court, this court relied upon policy considerations to limit when jury trials are required in criminal cases.26 These policy considerations included the fact that *13nonjury trials are speedy and inexpensive, jury trials impose burdens on jurors, and there are administrative problems involved in providing jury trials.27 Jury trials in small civil matters should be limited, based on these same policy considerations. Civil litigants in minor cases must be able to present their arguments in a forum which does not require formal knowledge of procedures such as selecting jurors and presenting-jury instructions.
The justices of the peace in Las Vegas Township had the right to consider these actions as small claims. The Supreme Court of Iowa agreed with this premise by finding that parties are not entitled to jury trials when the relief sought is $5,000 or less.28 The justices of the peace should have the right to adopt the same policy in Nevada.
Hudson v. City of Las Vegas, 81 Nev. 677, 680, 409 P.2d 245, 246-47 (1965).
Id.
Howard v. State, 83 Nev. 53, 57, 422 P.2d 548, 550 (1967).
See Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 708 (1999).
Id. (quoting Markman v. Westview Instruments, Inc., 517 U.S. 370, 376 (1996)).
Id. at 723 (Scalia, J., concurring).
Id. at 729 (Scalia, J., concurring).
Id. (Scalia, J., concurring).
Id. (Scalia, J., concurring).
Iowa Nat. Mut. Ins. Co. v. Mitchell, 305 N.W.2d 724, 727 (Iowa 1981).
Id. (quoting J. Profatt, A Treatise on Trial by Jury § 99, at 142 (1877)); see also Capital Traction Company v. Hof, 174 U.S. 1, 16-17 (1899).
See Mitchell, 305 N.W.2d at 727.
“[S]tate courts are never subject to the Seventh Amendment, no matter the nature of the claim . . . .” Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 79 n.5 (1989) (White, J., dissenting).
See Mitchell, 305 N.W.2d at 728-29.
Id. at 728 (quoting Charles W. Wolfram, The Constitutional History of the Seventh Amendment, 57 Minn. L. Rev. 639, 736 (1973)).
Id. (citing Profatt, supra note 11, § 100, at 143-44).
Capital Traction Company, 174 U.S. at 27.
NRS 4.370(1)(b). Effective January 1, 2005, the jurisdictional limit for justices’ courts civil cases will increase from $7,500 to $10,000. 2003 Nev. Stat., ch. 160, §§ 2, 7, at 849, 853. Legislation also provides for the establishment of a mandatory short trial program for civil cases in the justices’ courts, with exceptions for certain circumstances, including small claims actions. Id. § 3, at 850-51.
See NRS 67.010-050.
“Provable damages” is defined as “earnings, medical expenses, property damages and similar tangible expenses (i.e., out-of-pocket expenses).”
Blanton v. North Las Vegas Mun.Ct., 103 Nev. 623, 633, 748 P.2d 494, 500 (1987), aff’d sub nom. Blanton v. City of North Las Vegas, 489 U.S. 538 (1989).
State v. Smith, 99 Nev. 806, 809, 672 P.2d 631, 633 (1983).
Id. (citations omitted).
Blanton, 489 U.S. at 542 (citing Baldwin v. New York, 399 U.S. 66, 69 (1970) (plurality opinion)).
Id. at 543 (quoting Baldwin, 399 U.S. at 73 (plurality opinion)).
103 Nev. at 634-35, 748 P.2d at 501.
Id.
Iowa Nat. Mut. Ins. Co. v. Mitchell, 305 N.W.2d 724 (Iowa 1981).