Key Points

  • Article 1, Section 3 of the Nevada Constitution preserves the civil jury right as it existed at common law in 1864, and a new statutory cause of action carries the right only if it is sufficiently analogous to a common law claim for which a jury trial was then available.
  • The court adopted the Delaware Supreme Court's holistic historical-analog test from Blue Beach, weighing lineage, purpose, substance, elements, relief and enforcement mechanism, and placed the burden of identifying an analog on the party seeking a jury.
  • The court declined to apply the Seventh Amendment analysis of SEC v. Jarkesy, describing it as a different constitutional question under a different framework, and found its approach consistent with the public rights doctrine of Atlas Roofing.
  • None of Hagen's proposed analogs—fraudulent misrepresentation, professional negligence or an action in debt—was sufficiently analogous to the unlicensed-practice violations of NRS 623.360(1)(a)-(c) or the civil penalty authority of NRS 623.365.
  • The court rejected the board's waiver argument because the jury claim presented a purely constitutional question that the board had in any event considered on remand.

The Nevada Supreme Court held Thursday that an architect licensed in California had no right under the state constitution to a jury trial before Nevada's architecture board fined him $20,000 for practicing without a Nevada license. The court also declined to follow the federal jury-trial test the U.S. Supreme Court applied in SEC v. Jarkesy.

Justice Cadish wrote for the court, joined by Chief Justice Herndon and Justices Pickering, Parraguirre, Bell and Lee. Justice Lidia S. Stiglich did not participate. The court affirmed a Clark County district court order denying architect Jeffrey Hagen's petition for judicial review.

The decision sets the test Nevada courts will apply when a party claims a jury right in a proceeding the legislature created. Article 1, Section 3 of the Nevada Constitution preserves the jury right for claims triable to a jury at common law in 1864, the year Nevada adopted its constitution. A newer statutory claim carries the right only if it is "sufficiently analogous" to such a claim. The party seeking a jury must identify that analog, and the court held that Hagen had not done so for any of the board's charges.

Hagen is licensed in California through JAHA Architecture, Inc., a California corporation that joined the appeal. After an administrative hearing, the Nevada State Board of Architecture, Interior Design and Residential Design found that Hagen practiced architecture in Nevada without a license and held out as an architect there without one, in violation of NRS 623.360. The board imposed the fine under NRS 623.365, which authorizes a civil penalty of up to $10,000 for each violation.

Hagen sought judicial review, and the district court sent the case back to the board, which found no jury right. The district court then denied a second petition, and Hagen appealed.

The court rejected the board's argument that Hagen waived the jury claim by not raising it at the original administrative hearing, noting that the board had considered the claim on remand. In any event, the court wrote, "Hagen's claimed right to a jury trial presents a purely constitutional question" that it could consider.

Hagen also invoked the Seventh Amendment, the federal civil jury guarantee, but acknowledged that it does not apply to the states. The case turned instead on Article 1, Section 3, which provides that "[t]he right of trial by Jury shall be secured to all and remain inviolate forever."

Hagen urged the court to adopt the comparison test from Jarkesy, the U.S. Supreme Court's 2024 Seventh Amendment decision, and the court declined. Cadish wrote that Nevada's provision preserves the jury right as it existed at common law, while the federal test asks whether a claim is legal rather than equitable, with particular focus on the remedy. "Jarkesy therefore addresses a different constitutional question under a different constitutional framework," the opinion said.

The court said its approach is consistent with the public rights doctrine, under which Congress may create new statutory obligations and authorize agencies to adjudicate violations and impose penalties without a jury. The opinion cited the U.S. Supreme Court's 1977 decision in Atlas Roofing Co. v. Occupational Safety & Health Review Commission and Justice Sotomayor's Jarkesy dissent.

Courts in Tennessee, New York, Delaware, Louisiana and Vermont have likewise declined to extend Jarkesy to state constitutional jury questions involving administrative civil penalties, the court noted. It adopted the Delaware Supreme Court's approach in Blue Beach Bungalows DE, LLC v. State, which found no jury right in state enforcement actions under Delaware's Consumer Fraud Act.

Under that test, a court weighs a statutory claim's historical lineage, purpose, substance and elements, along with the relief and enforcement mechanism the legislature chose. "No single characteristic is necessarily dispositive," Cadish wrote. The question, the court said, is whether, "taken together, these features establish the requisite historical analogy to a common law cause of action with a jury trial right protected by Article 1, Section 3."

Hagen proposed three analogs, and the court rejected each. Hagen likened the charges of holding out and advertising as an architect without a license to fraudulent misrepresentation, but had not shown that such a claim existed at common law in 1864, the court said. The provisions also require no proof of falsity, knowledge, intent to induce reliance, actual reliance or damages, and the court called the remaining "limited overlap" with fraud "insufficient to establish the requisite historical analogy."

For the charge of practicing without a license, Hagen pointed to professional negligence. The court accepted that such claims carried a jury right in 1864. But the statute requires no proof of negligence, causation, injury or damages, and no expert testimony. The licensing provision, Cadish wrote, "asks whether the individual is authorized to practice architecture, whereas a claim for professional negligence presupposes that the defendant is a professional and instead examines whether that professional performed below the applicable standard of care."

Last, Hagen argued that the board's penalty claim resembles a common law action in debt, which the court agreed existed in 1864. The court acknowledged that the U.S. Supreme Court, in Tull v. United States, said government suits for statutory civil penalties had historically been viewed as actions in debt requiring a jury.

But the court held that an action in debt recovered a sum already owed, while the board's penalty enforces a regulatory scheme. "Here, the Board is not bringing an action to recover a debt owed to it," Cadish wrote. "It is enforcing a statutory obligation created by the legislature and imposing a penalty for its violation."

Lawyers for Hagen and JAHA Architecture included Cameron M. Halling of Pacific Legal Foundation. The board and Monica Harrison, named in the caption as executive director, were represented by Louis Ling of Ling Ltd.

The affirmance leaves in place the district court's denial of judicial review and, with it, the board's decision and $20,000 penalty.