Reply Brief — Duane Leo Ehmer, Darryl William Thorn, and Jake Ryan, Petitioners v. United States

Supreme Court briefOct 30, 2024

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No. 24-5160

In the Supreme Court of the United States

Duane Leo Ehmer, Darryl William Thorn,

and Jake Ryan,

Petitioners,

United States,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITIONERS’ REPLY

Tonia L. Moro

106 Talent Ave, Ste. 6

Talent, OR 97504

(541) 601-3010

Counsel for Duane Ehmer

Jay A. Nelson

637 SW Keck Dr., No. 415

McMinnville, OR 97128

(971) 319-3099

Counsel for Darryl Thorn

Michael B. Kimberly*

McDermott Will & Emery LLP

500 North Capitol Street NW

Washington, DC 20001

(202) 756-8000

mkimberly@mwe.com

Eugene R. Fidell

Yale Law School

Supreme Court Clinic

127 Wall Street

New Haven, CT 06511

(203) 432-4992

Jesse Merrithew

610 SW Alder St., Ste. 415

Portland, Oregon 97205

(971) 229-1241

* Counsel of Record for all

petitioners

Counsel for Jake Ryan

TABLE OF CONTENTS

Table of Authorities ..................................................... ii

Petitioners’ Reply ......................................................... 1

A. Callan and its progeny are wrong and

unworkable, and they should be overruled ..........2

B. This is a perfect vehicle for reconsidering

Callan, which is a matter of tremendous

practical importance .......................................... 8

Conclusion .................................................................. 11

TABLE OF AUTHORITIES

Cases

Baldwin v. New York,

399 U.S. 66 (1970) ............................................... 3

Barter v. Commonwealth,

3 Pen. & W. 253 (Pa. 1831) ................................... 5

Blanton v. City of North Las Vegas,

489 U.S. 538 (1989) ............................................. 7

Callan v. Wilson,

127 U.S. 540 (1888) .......................................... 1-5

Champ v. McGhee,

270 S.E.2d 445 (W. Va. 1980) .............................. 8

Crawford v. Washington,

541 U.S. 36 (2004) ....................................... 2, 6, 8

Duncan v. Louisiana,

391 U.S. 145 (1968) ............................................. 1

Franklin v. State,

576 S.W.2d 621 (Tex. Crim. App. 1978) ............... 8

Geter v. Commissioners for Tobacco Inspection,

1 S.C.L. (1 Bay) 354 (1794) ................................... 5

Gibbons v. Ogden,

22 U.S. (9 Wheat) 1 (1824) ................................... 2

Lewis v. United States,

518 U.S. 322 (1996) ....................................... 7, 10

Lochner v. New York,

198 U.S. 45 (1905) ............................................... 1

In re Marriage of Betts,

558 N.E.2d 404 (Ill. App. Ct. 1990) ..................... 8

Marzen v. Klousia,

316 N.W.2d 688 (Iowa 1982) ............................... 8

iii

Cases—continued

People v. Goodwin,

245 N.W.2d 96 (Mich. Ct. App. 1976) .................. 8

Plessy v. Ferguson,

163 U.S. 537 (1896) ............................................. 1

Ramos v. Louisiana,

590 U.S. 83 (2020)............................................... 2

Schick v. United States,

195 U.S. 65 (1904) ........................................... 4, 5

State v. Kennedy,

396 N.W.2d 722 (Neb. 1986) ............................... 8

State v. Peterson,

41 Vt. 504 (1869) ................................................. 8

State v. Sklar,

317 A.2d 160 (Me. 1974) ...................................... 8

Sullivan v. Louisiana,

508 U.S. 275 (1993) ............................................. 9

Ulster County Court v. Allen,

442 U.S. 140 (1979) ............................................. 9

United States v. Gonzalez-Lopez,

548 U.S. 140 (2006) ............................................. 9

United States v. Lesh,

107 F.4th 1239 (10th Cir. 2024) ........................... 6

Ex parte Wilson,

114 U.S. 417 (1885) .............................................. 3

Constitutional provisions

Cal. Const. art. I, § 16................................................. 8

Idaho Const. art. I, § 7 ................................................ 8

Okla. Const. art. II, § 19 ............................................. 8

U.S. Const. amend V .................................................. 3

Constitutional provisions—continued

U.S. Const. amend VI ..............................................1, 3

U.S. Const. art. III, § 2, cl. 3 ....................................... 1

Statutes

Ala. Code § 15-14-30 .................................................. 8

Colo. Rev. Stat. Ann. § 16-10-109 .............................. 8

Ga. Code Ann. §15-12-125 .......................................... 8

Kan. Stat. Ann. § 22-3404.......................................... 8

Ky. Rev. Stat. Ann. § 29A.270 ................................... 8

Mo. Ann. Stat. § 543.200 ........................................... 8

Mont. Code Ann. § 46-17-201..................................... 8

Ohio Rev. Code Ann. § 2945.17.................................. 8

Or. Rev. Stat. Ann. § 136.001 ..................................... 8

Or. Rev. Stat. Ann. § 136.210 ..................................... 8

1 Stat. 73, ch. 20, § 9.................................................. 4

Other authorities

Alexandra Natapoff, Punishment Without Crime:

How Our Massive Misdemeanor System Traps

the Innocent and Makes America More

Unequal (2018) ................................................... 10

Andrea Roth, The Lost Right to Jury Trial in

“All” Criminal Prosecutions,72 Duke L.J.

599 (2022) ................................................... 3, 4, 6

John D. King, Juries, Democracy, and Petty

Crime, 24 U. Pa. J. Const. L. 817 (2022) ........ 6, 10

John M. Beattie, Garrow and the Detectives,

Lawyers, and Policemen at the Old Bailey in

the Late Eighteenth Century, 11 Crime,

Hist. & Societies 5 (2007)..................................... 5

Other authorities—continued

Laura I. Appleman, The Lost Meaning of the Jury

Trial Right, 84 Ind. L.J. 397 (2008) ..................... 6

Philip P. Pan, Landlord Faces Criminal Charges,

Washington Post (April 1, 2000) ........................... 7

Rules of Procedure for the Trials of Minor Offenses

Before Magistrates, 51 F.R.D. 197 (1971) .............. 3

Stephen A. Siegel, Textualism on Trial: Article

III’s Jury Trial Provision, the Petty Offense

Exception, and Other Departures from Clear

Constitutional Text, 51 Hous. L. Rev. 89

(2013) ................................................................... 6

Timothy Lynch, Rethinking the Petty Offense

Doctrine, 4 Kan. J.L. & Public Policy 7 (1994) ...... 6

4 William Blackstone, Commentaries on the Laws

of England (1769) ................................................. 5

PETITIONERS’ REPLY

Section 2, clause 3 of Article III of the Constitution

provides that “[t]he Trial of all Crimes, except in Cases of

Impeachment, shall be by Jury.” The Sixth Amendment

similarly provides that, “[i]n all criminal prosecutions,

the accused shall enjoy the right to a speedy and public

trial, by an impartial jury.” Each provision uses categorical language admitting no exceptions: In all prosecutions

of all crimes, a defendant is entitled to a jury trial.

In Callan v. Wilson, 127 U.S. 540 (1888), this Court

recognized an exception nonetheless. Reading the word

“crime” in an unusually “limited” way, Callan held that

the right to trial by jury extends only to “offenses of a

serious or atrocious character.” Id. at 549. According to

Callan, when the Framers said “all Crimes” in Article III

and “all criminal prosecutions” in the Sixth Amendment,

they could not have meant “minor or petty offenses,”

which thus may be adjudicated “summarily, and without

a jury.” Id. at 552. Accord, e.g., Duncan v. Louisiana, 391

U.S. 145, 160-161 (1968).

That rule is a product of the Fuller Court, the nursery

bed of such ignominious cases as Plessy v. Ferguson, 163

U.S. 537 (1896), and Lochner v. New York, 198 U.S. 45

(1905). It reflects the same malignant judicial policymaking as those other cases, and like them, it warrants

reexamination and overruling.

For its part, the government says little in opposition

to review of the second question presented in the petition.

It describes (at 19-21) the petty offense exception as old

and settled. As evidence, it cites (at 21-22) to Blackstone

and the nineteenth-century practices of four states. And it

insists (at 23-24) that the petty-offense exception is not

“unworkable,” whereas its overruling portends “destabilizing” and “dramatic consequences.”

None of that supports a denial of the petition. Stare

decisis is not an “inexorable command,” and this Court

has not hesitated in recent cases to overturn precedents

that have unduly constrained core constitutional rights

for the protection of criminal defendants. Ramos v.

Louisiana, 590 U.S. 83, 106 (2020) (holding that guilty

verdicts must be unanimous, and overruling Apodaca v.

Oregon, 406 U.S. 404 (1972)). See also, e.g., Crawford v.

Washington, 541 U.S. 36 (2004) (holding that there is no

general reliability exception to the Confrontation Clause,

and overruling Ohio v. Roberts, 448 U.S. 56 (1980)). It

should do so here.

A. Callan and its progeny are wrong and

unworkable, and they should be overruled

“[T]he precedents of this Court warrant * * * deep respect as embodying the considered views of those who

have come before.” Ramos, 590 U.S. at 105. At the same

time, stare decisis is “at its weakest when [the Court] interpret[s] the Constitution.” Ibid. In such cases, overruling is warranted when the decision rests on plainly wrong

reasoning and has proven damaging and unworkable.

Here, those factors counsel clearly in favor of overruling

the petty-offense exception.

1.a. Text. Callan and its progeny are indefensibly

wrong. To start, constitutional holdings are supposed to

be grounded in “the language of the instrument.” Gibbons

v. Ogden, 22 U.S. (9 Wheat) 1, 186-189 (1824). But the

Court’s focus in Callan was openly on the Constitution’s

“spirit” rather than its text. 127 U.S. at 549. That is a red

flag at the starting line.

The Constitution’s language addressing jury trials in

criminal cases is not difficult to decipher, and “[b]y its

terms, the [Sixth] Amendment makes no exception for so-

called ‘petty offenses.”’ Rules of Procedure for the Trials

of Minor Offenses Before Magistrates, 51 F.R.D. 197, 209

(1971) (Black, J., dissenting). Accord Baldwin v. New

York, 399 U.S. 66, 76 (1970) (Black, J., concurring).

Contemporaneous dictionaries and other authoritative Founding Era sources support that conclusion. See

Andrea Roth, The Lost Right to Jury Trial in “All” Criminal Prosecutions, 72 Duke L.J. 599, 638-641 (2022)

(collecting sources). They stand for the commonsense

conclusion that “a criminal prosecution” is any case

“prosecuted in a criminal court, rather than a civil suit.”

Ibid. Although there is some support for a narrower reading of “crime” as referring only to felonies, that was not

the more common meaning of the word at the Founding.

Ibid. And even if that reading were a plausible interpretation of section 2, clause 3 of Article III (it is not), it still

would make no sense as applied to the Sixth Amendment’s reference to “all criminal prosecutions,” which

draws a crisp distinction between criminal and civil proceedings, not serious and petty offenses.

Any doubt on this front is resolved by other contemporaneous sources of law. To begin with, the Fifth

Amendment demonstrates that the Framers knew how to

limit constitutional rights only to felonies when that was

their intent. The Grand Jury Clause provides for indictment by grand jury only for a “capital, or otherwise

infamous crime.” As this Court held three terms before

Callan, that means felonies. Ex parte Wilson, 114 U.S.

417, 423 (1885). If Callan were rightly decided, the

modifiers preceding “crime” in the Fifth Amendment’s

Grand Jury Clause would be surplusage.

Beyond that, the Judiciary Act of 1789—enacted just

one day before the Bill of Rights was introduced—expressly granted the federal district courts jurisdiction to

adjudicate crimes with punishments of less than six

months. At the same time, it provided that “the trial of

issues in fact, in the district courts, in all causes except

civil causes of admiralty and maritime jurisdiction, shall

be by jury.” 1 Stat. 73, ch. 20, § 9 (emphasis added).

It would beggar belief to suppose that the Members of

the First Congress—among them, the Framers of the Constitution and drafters of the Sixth Amendment—meant to

enshrine a only a limited jury trial right in the Constitution fewer than 24 hours after enacting a statute mandating jury trials in all criminal prosecutions in the federal

district courts.

Put simply, the words “all Crimes” and “all criminal

prosecutions” must be taken to mean exactly what they

say—all and every one, without regard for whether a judge

perceives the crime to be serious or petty.

b. History. The government attempts (at 21-22) a

defense of Callan based upon history, but the historical

justification for the petty-offense exception is not sustainable. Callan itself eschewed much “reference to

authorities,” instead simply “conceding that there is a

class of petty or minor offenses not usually * * * triable

[at] common law by a jury.” 127 U.S. at 555. The principal justification for the petty-offense exception came

later during the Fuller Court, in Schick v. United States,

195 U.S. 65 (1904). There, the Court relied on Blackstone

to draw a supposed distinction between “criminal

offenses” and “crimes,” the former apparently including

misdemeanors and the latter not. Id. at 70.

But as academics have since noted (e.g., Roth, supra,

at 605), Blackstone himself expressly rejected the crux of

Schick’s holding, concluding that summary convictions

for crimes deemed petty by Parliament were unjust devia-

tions from the right to jury in criminal cases. See 4 William Blackstone, Commentaries on the Laws of England

*280-281 (1769). And as Justice Harlan explained from

the start, Schick’s reasoning is nonsense: plainly enough,

“[a] crime is a criminal offense and a criminal offense is a

crime.” 195 U.S. at 98 (Harlan, J., dissenting).

It is also hard to imagine that the Framers—escaping

Colonial England and adopting a Constitution to foreclose

its many tools of oppression—would have intended to incorporate a controversial and “mischievous” exception to

the “admirable and truly English trial by jury.” 4 William

Blackstone, Commentaries *280-281. Indeed, it was well

understood at the Founding that summary criminal adjudications were an exercise of “dictatorial power.” John

M. Beattie, Garrow and the Detectives, Lawyers, and Policemen at the Old Bailey in the Late Eighteenth Century,

11 Crime, Hist. & Societies 5, 21 (2007). 1

The petty-offense exception was never adequately

justified. From the beginning through today, it has been

the object of withering critiques. As noted in the petition

(at 10), academics have recently revived those criticisms,

supporting them with the kind of rigorous historical work

that the issue demands. See John D. King, Juries, DemoFor contrary support, the government repeats (at 22 & n.3) the

same few state laws cited by Callan, 127 U.S. at 552. But those

sources do not reflect Founding Era consensus. See, e.g., Geter v.

Commissioners for Tobacco Inspection, 1 S.C.L. (1 Bay) 354, 356

(1794) (“[T]hese kind of summary jurisdictions, without the intervention of a jury, are in restraint of the common law: that nothing

shall be construed in favour of them; but the intendment of law is always against them.”); Barter v. Commonwealth, 3 Pen. & W. 253,

253 (Pa. 1831) (“If the charter did give the right to confer a power to

imprison on summary conviction, and without appeal to a jury, it

would be so far unconstitutional and void.”).

cracy, and Petty Crime, 24 U. Pa. J. Const. L. 817, 844

(2022) (“Supreme Court doctrine on the petty offense exception is on a collision course with itself”); Roth, supra,

at 606 (2022) (“the doctrine’s ostensible justifications

* * * are baseless”); Stephen A. Siegel, Textualism on

Trial: Article III’s Jury Trial Provision, the Petty Offense

Exception, and Other Departures from Clear Constitutional Text, 51 Hous. L. Rev. 89, 94 (2013) (the petty-offense exception is a “departure from clear and concrete

constitutional command”); Laura I. Appleman, The Lost

Meaning of the Jury Trial Right, 84 Ind. L.J. 397, 399

(2008) (eliminating bench trials would “be a return to

original common-law and constitutional meaning”); Timothy Lynch, Rethinking the Petty Offense Doctrine, 4 Kan.

J.L. & Public Policy 7, 7 (1994) (“[t]here is little evidence

to support the notion that the framers of the Constitution

would have approved the Supreme Court’s departure from

the unequivocal provisions they carefully drafted” in the

Sixth Amendment).

Lower court judges have also recently weighed in,

calling on the Court to overrule the petty-offense exception. See Pet. 11 (citing United States v. Lesh, 107 F.4th

1239, 1251-1254 (10th Cir. 2024) (Judge Tymkovich,

joined by Judge Rossman, concurring)).

This Court previously has granted review to overturn

precedent where “Members of this Court and academics

have suggested that [the Court] revise [its] doctrine to reflect more accurately the original understanding of the

[Constitution].” Crawford, 541 U.S. at 60. That same

outcome is warranted here.

2. That is especially so because the petty-offense exception has proven unworkable. Courts are left to guess at

which offenses are petty and which are serious according

to a constantly shifting and amorphous standard.

As the Court explained in Blanton v. City of North Las

Vegas, 489 U.S. 538 (1989), early twentieth-century

formulations of the distinction called for “recourse of the

judge to his own sympathy and emotions,” which of

course was no standard at all. Id. at 541 n.5. Later

twentieth-century decisions “focused on the nature of the

offense and on whether it was triable by a jury at common

law.” Id. at 541. But “adherence to a common-law approach has been undermined” in recent years “by the substantial number of statutory offenses lacking commonlaw antecedents.” Id. at 541 n.5.

More recently, the Court has attempted to establish

“objective indications of the seriousness with which

society regards the offense,” relying principally on “the

maximum authorized period of incarceration.” Id. at 541542. But even there, the Court has declined to draw clear,

predicable lines. Ibid. For instance, it is now the general

rule that “[a]n offense carrying a maximum prison term of

six months or less is presumed petty,” but that standard

is qualified by the potential for unidentified legislative

indications that the offense is “serious.” Lewis v. United

States, 518 U.S. 322, 326 (1996). And yet a defendant

who faces years of prison for multiple consecutively

sentenced “petty” offenses still may be denied a trial.

Ibid. See, e.g., Philip P. Pan, Landlord Faces Criminal

Charges, Washington Post (April 1, 2000) (available at

wapo.st/48xvMwk) (defendant charged with 12,948

“petty” offenses, carrying the possibility of $3.9 million

in fines and 3,192 years’ imprisonment).

With due respect to the Court, there is no predictable

standard to be gleaned from these cases—and certainly

none grounded in the Constitution’s text or original

meaning. “The Constitution prescribes” when jury trials

are required in criminal cases, and this Court, no less than

any other, “lack[s] authority to replace [that rule] with

one of [its] own devising.” Crawford, 541 U.S. at 67.

On the other side of the scale, it is simply wrong to

say (BIO 24) that overturning the petty-offense exception

would be destabilizing. In fact, 19 states that are home to

47% of the nation’s population—Alabama, California,

Colorado, Georgia, Idaho, Illinois, Kansas, Kentucky,

Maine, Michigan, Missouri, Montana, Nebraska, Ohio,

Oklahoma, Oregon, Texas, Vermont, and West Virginia—

have rejected the petty-offense exception in all or nearly

all misdemeanor cases, as a matter of state law. 2 There is

no evidence that those states’ criminal justice systems are

overly burdened or destabilized as a result.

B. This is a perfect vehicle for reconsidering

Callan, which is a matter of tremendous

practical importance

1. The government does not contend that this case is

an unsuitable vehicle for reexamining Callan, because it

is not. Each petitioner was charged with and found guilty

of multiple petty offenses in a trial by judge rather than

See Ala. Code § 15-14-30; Cal. Const. art. I, § 16; Colo. Rev. Stat.

Ann. § 16-10-109; Ga. Code Ann. §15-12-125; Idaho Const. art. I, § 7;

In re Marriage of Betts, 558 N.E.2d 404, 420 (Ill. App. Ct. 1990);

Marzen v. Klousia, 316 N.W.2d 688, 691 (Iowa 1982); Kan. Stat.

Ann. § 22-3404; Ky. Rev. Stat. Ann. § 29A.270; State v. Sklar, 317

A.2d 160, 165 (Me. 1974); People v. Goodwin, 245 N.W.2d 96, 97

(Mich. Ct. App. 1976); Mo. Ann. Stat. § 543.200; Mont. Code Ann.

§ 46-17-201; State v. Kennedy, 396 N.W.2d 722, 727 (Neb. 1986);

Ohio Rev. Code Ann. § 2945.17; Okla. Const. art. II, § 19; Or. Rev.

Stat. Ann. §§ 136.001, .210; Franklin v. State, 576 S.W.2d 621, 623

(Tex. Crim. App. 1978); State v. Peterson, 41 Vt. 504, 511 (1869);

Champ v. McGhee, 270 S.E.2d 445, 446 (W. Va. 1980).

jury. Pet. App. 6. Petitioners objected to the denial of a

jury trial for those offenses, an argument they renewed on

appeal and the Ninth Circuit expressly addressed and rejected. Pet. App. 17. And all agree (BIO 19-20) that the

petty-offense exception is the only reason petitioners

were denied a jury trial for those offenses.

The denial of “[t]he right to trial by jury * * * unquestionably qualifies as ‘structural error’” warranting reversal without evidence of specific prejudice. Sullivan v.

Louisiana, 508 U.S. 275, 281-282 (1993). There is accordingly no doubt that reversal on the second question

presented would affect the outcome here—at minimum,

the misdemeanor convictions would have to be vacated,

and the case would have to be remanded for a jury trial. 3

Moreover, clean presentations of the question presented are rare. Far more often than not, individuals

charged with so-called petty offenses are unrepresented

and would not demand a trial to begin with. Even among

those who, like petitioners, are charged with misdemeanors alongside felonies, it is unusual for counsel to

The district court’s denial of a jury trial on the misdemeanor

charges likely also affected the trial on the felony charges, albeit in

unprovable ways. See United States v. Gonzalez-Lopez, 548 U.S. 140,

150 (2006) (“Harmless-error analysis in [a structural error case is] a

speculative inquiry into what might have occurred in an alternate universe.”). The felony charges were tried to a jury and resulted in compromise verdicts for Ehmer (guilty on one of two counts) and Ryan

(guilty on one of three counts). Pet. App. 5. If the misdemeanors had

been tried with the felonies, the jury would have seen evidence of less

serious crimes and may have compromised for all three petitioners on

a lesser guilty verdict for the misdemeanors alone, carrying sixmonth jail terms rather than the lengthier terms they received. Cf.

Ulster County Court v. Allen, 442 U.S. 140, 168 (1979) (Burger, C.J.,

concurring) (juries, “not unlike negotiators, are permitted the luxury

of verdicts reached by compromise”).

press for the overruling of this Court’s precedents beginning in the district court. But because petitioners here preserved their jury-trial claim at every possible stage—as

the government acknowledges (BIO 10)—there are no

factual or procedural obstacles to the Court’s consideration of the second question presented.

2. Finally, the second question presented is tremendously important. Millions of misdemeanors are charged

every year throughout the United States. See Alexandra

Natapoff, Punishment Without Crime: How Our Massive

Misdemeanor System Traps the Innocent and Makes America More Unequal 256-258 (2018).

“Petty offenses” are anything but petty for those convicted. Aside from the prospect of many months or even

years of imprisonment (Lewis, 518 U.S. at 337 (Kennedy,

J., concurring)), misdemeanor convictions can mean losing a job, driver’s license, public benefits, housing, or

child custody. Natapoff, supra, at 20. They also can mean

deportation or limitations on the right to carry firearms.

King, supra, at 844.

The Framers anticipated that all criminal defendants

in all criminal prosecutions would have the right to trial

by jury before facing such life-altering deprivations of

liberty. The judge-made exception for “petty offenses”

cannot be squared with the text or history of section 2,

clause 3 of Article III or the Sixth Amendment. The time

has come for the Court to reconsider Callan and overturn

it. The petition accordingly should be granted.

CONCLUSION

The Court should grant the petition, if not on both

questions, then limited to the second question. 4

Respectfully submitted.