Appendix — Blanton v. North Las Vegas

Supreme Court brief1989

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Text

97-1437.

No.

| Supreme Court, U.S. |

FILED

FEB 26 1988

IN THE SUPREME COURT

MELVIN R.

MARK D. FRALEY,

BLANTON,

UNITED STATES

October Term, 19

of PIAREPH F. SPANIOL, JR.

CLERK

NSCT. NO. 17940

)

Petitioners, ) (Blanton)

) NSCT. NO. 18065

vs. ) (Fraley)

)

CITY OF NORTH )

LAS VEGAS, STATE OF )

NEVADA, )

)

Respondent. )

)

ertio fe) e

Supreme Court of The State of Nevada

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

GRAVES, LEAVITT & KOCH

CITY OF NORTH

JOHN J. GRAVES, JR., ESQ. LAS VEGAS

601 S. Sixth Street

Las Vegas, NV 89101

(702) 385-7277

JOHN G. WATKINS, ESQ.

City Attorney's

Office-Criminal

1301 E. Lake

Mead

Counsel for Blanton N.

Las Vegas, NV

ATTORNEY GENERAL

333 N. Rancho Rd., #633 State Mailroom

Las Vegas, Nevada 89106

(702) 646-3155

Counsel for Fraley

Counsel for

Petitioners

Complex

Las Vegas, NV

89158

unsel for

Respondent

INDEX TO APPENDIX

Document Tab

Reference

Nevada Supreme Court

Opinion; filed 12/31/87 "A"

United States District

Court, District of Nevada

Memorandum Decision and

Order, Entered 10/01/86

Bronson v. Swinney —

Listing of States and

D.U.I. laws therein a as

IN THE SUPREME COURT OF THE STATE OF NEVADA

MELVIN R. BLANTON, No. 17940

Appellant,

vs.

FILED

THE NORTH LAS VEGAS DEC 31 1987

MUNICIPAL COURT, NORTH /s/ Jeanne C.

LAS VEGAS, NEVADA, AND Richards

THE HONORABLE GARY DAVIS,

MUNICIPAL JUDGE THEREOF,

JUDITH FOUNTAIN

CLERK, SUPREME

COURT

Respondents.

JEANETTE HILTON, No. 17976

Appellant,

vs.

THE CITY OF LAS VEGAS,

COUNTY OF. CLARK, STATE

OF NEVADA,

Respondent.

SAMUEL RAY FLANAGAN, No. 17997

Appellant,

vs.

THE HONORABLE A. LORING

PRIMEAUX, MUNICIPAL COURT

JUDGE, IN AND FOR THE CITY

OF LAS VEGAS,

Respondent.

Sd ee

PATRICIA ANN COLLIE,

Appellant,

vs.

THE HONORABLE A. LORING

PRIMEAUX, MUNICIPAL COURT

JUDGE, IN AND FOR THE

CITY OF LAS VEGAS,

Respondent.

VINCENT H. WOODS,

Appellant,

vs.

THE HONORABLE A. LORING

PRIMEAUX, MUNICIPAL COURT

JUDGE, IN AND FOR THE CITY

OF LAS VEGAS,

Respondent.

JAMES ARCADE,

Appellant,

vs.

THE HONORABLE STEPHEN C.

WEBSTER, MUNICIPAL COURT

JUDGE, IN AND FOR SHE CITY

OF LAS VEGAS,

Respondent.

i i i i i tel

No.

17998

17999

18000

CITY OF LAS VEGAS, NEVADA,

AND A. LORING PRIMEAUX,

JUDGE OF THE LAS VEGAS

MUNICIPAL COURT,

Appellants,

vs.

JOSEPH M. FREELY,

Respondent.

CITY OF NORTH LAS VEGAS,

NEVADA,

Petitioner,

vs.

THE EIGHTH JUDICIAL

DISTRICT COURT OF THE

STATE OF NEVADA, IN AND

FOR THE COUNTY OF CLARK,

AND THE HONORABLE

ADDELIAR D. GUY, DISTRICT

JUDGE,

Respondents.

MARK D. FRALEY

Real Party

In Interest.

i i i i i el

No.

18032

18065

CITY OF LAS VEGAS, NEVADA,

AND STEPHEN WEBSTER,

JUDGE OF THE MUNICIPAL

COURT,

Appellants,

vs.

JAMES P. CUNNINGHAM, SR.,

Respondent.

ANTHONY L. WILEY,

Petitioner,

vs.

THE EIGHTH JUDICIAL

DISTRICT COURT OF THE

STATE OF NEVADA, IN AND

FOR THE COUNTY OF CLARK,

AND THE HONORABLE

STEPHEN L. HUFFAKER,

DISTRICT JUDGE,

Respondents.

CITY OF LAS VEGAS,

LAS VEGAS MUNICIPAL

COURT OF THE CITY OF

LAS VEGAS, THE HONORABLE

A. LORING PRIMEAUX, JUDGE,

Real Party

In Interest.

eee a a a a a a a a a a a ee ee ee ee et ee eet eet ee ee”

No.

18073

18092

TIMOTHY JOHN CAHALIN, No. 18140

Appellant,

vs.

WEBSTER, MUNICIPAL COURT

JUDGE, IN AND FOR THE

CITY OF LAS VEGAS,

)

THE HONORABLE STEPHEN )

)

}

Respondent. )

)

Appeals from orders denying petitions

for writs of mandamus, Eighth Judicial

District Court, Clark County; Hon. Michael

J. Wendell, District Judge (17940); Hon.

Donald M. Mosley, District Judge (17976);

Hon. John F. Mendoza, District Judge

(17997, 17998, 18000); Hon. Carl J.

Christensen, District Judge (17999); Hon.

Earle W. White, Jr., District Judge

(18140).

Appeals from orders granting

petitions for writs of mandamus, Eighth

Judicial District Court, Clark County; Hon.

Addeliar D. Guy, District Judge (18032);

Hon. Joseph S. Pavlikowski, District Judge

(18073).

Original petitions for writ of

certiorari (18065), and writ of prohibition

(18092).

Affirm Docket Nos. 17940, 17976,

Graves, Leavitt & Koch, and John

G. Watkins, Las Vegas,

for Appellant Melvin R.

Blanton.

Morgan D. Harris, Public

Defender, Craig B. Davis, Deputy

Public Defender, Clark County,

for Appellants Jeanette

Hilton, Samuel Ray

Flanagan, Patricia Ann

Collie, Vincent H. Woods,

James Arcade and Timothy

John Cahalin, and

Petitioner Anthony lL.

Wiley.

George F. Ogilvie, City

Attorney, and Nancy A. Becker,

Deputy City Attorney, Las Vegas,

for Appellants City of Las

Vegas, Hon. Stephen C.

Webster and Hon. A. Loring

Primeaux.

Roy A. Woofter, City Attorney,

and Mark L. Zalaoras, Deputy

City Attorney, North Las Vegas,

for Petitioner City of

North Las Vegas.

George F. Ogilvie, City

Attorney, Nancy A. Becker,

Deputy City Attorney, and

Lawrence M. Moore, Deputy City

Attorney, Las Vegas,

for Respondents City of Las

Vegas, Hon. Stephen cC.

Webster and Hon. A. Loring

Primeaux.

Roy A. Woofter, City Attorney,

and Mark Zalaoras, Deputy City

Attorney, North Las Vegas,

for Respondents City of

North Las Vegas and Hon.

Gary J. Davis.

Morgan D. Harris, Public

Defender, and Craig B. Davis,

Deputy Public Defender, Clark

County,

for Respondents Joseph M.

Feely and James P.

Cunningham, Sr.

John G. Watkins, Las Vegas,

for Real Party in Interest

Mark D. Fraley.

Hon. Brian McKay, Attorney

General, and James L. Rankl,

Deputy Attorney General, Carson

city,

for the State of Nevada,

Amicus Curiae.

OPINION

By the Court, GUNDERSON, C.J.:

This court consolidated the instant

appeals and petitions to consider two

questions. First, is NRS 266.550, which

precludes jury trials in municipal courts,

constitutiomal? 1} Second, does either the

United States Constitution or the Nevada

State Constitution mandate that persons

charged in the municipal courts with

driving under the influence of alcohol, a

misdemeanor, receive jury trials?

NRS 266.550 states:

The municipal court

shall have such powers and

jurisdiction in the city as

are now provided by law for

justices' courts, wherein

any person or persons are

charged with the breach or

violation of the provisions

of any ordinance of such

city or of this chapter, of

a police or municipal

nature; but the trial and

proceedings in such cases

shall be summary and

without a jury.

Appellants Melvin R. Blanton,

Jeanette Hilton, Samuel Ray Flanagan,

Patricia Ann Collie, Vincent H. Woods,

James Arcade and Timothy John Cahalin were

charged in the municipal court with driving

under the influence of alcohol (DUI), a

misdemeanor. 2 See NRS 484.379 and

484.3792(1)(a) and (b). Each of these

individuals filed a pretrial petition for a

writ of mandamus in the Eighth Judicial

District Court challenging the denial by

the municipal court of his or her

individual demand for a jury trial. The

district court denied each petition, and

these appeals followed.

: The amended complaint filed in the

municipal court against appellant Woods

charges Woods with driving under the

influence of both alcohol and a controlled

substance.

Respondents Joseph M. Feely and James

P. Cunningham, Sr., were also charged in

the municipal court with misdemeanor DUI.

Each of these individuals’ successfully

prosecuted a pretrial petition for a writ

of mandamus challenging the denial by the

municipal court of his demand for a jury

trial. The district court declared NRS

266.550 unconstitutional in those cases,

and directed that jury trials be set for

Cunningham and Feely. The City of Las

Vegas appeals from those orders.

Real party in interest Mark D. Fraley

was convicted in the municipal court of

misdemeanor DUI. Fraley appealed the

conviction to the Eighth Judicial District

Court; that court declared NRS 266.550

unconstitutional and remanded the case for

a jury trial. The City of North Las Vegas

subsequently filed in this court an

original petition for a writ of certiorari

challenging the district court's decision.

Petitioner Anthony L. Wiley was

charged in the municipal court with

misdemeanor DUI. Wiley filed in the Eighth

Judicial District Court a petition for a

writ of habeas corpus, challenging the

denial by the municipal court of his demand

for a jury trial. The district court

denied relief on procedural grounds and

Wiley's original petition in this court for

a writ of prohibition followed.

Statutory Grounds for Right to Jury Trial

NRS 266.550 provides municipal courts

with the power and jurisdiction of

justices' courts, except that the statute

precludes municipal courts from conducting

jury trials. Until 1985, each of the

thirteen incorporated municipalities of

this state had a provision in its charter

applying NRS chapter 266 to its municipal

courts. ’ In 1985, as part of a

legislative removal of certain duplicative

statutes, the legislature repealed those

provisions from the charters of the

thirteen cities. ‘

The application of NRS

chapter 266 to the municipal courts of

these cities is mow governed by NRS

266.905, which states:

° , North las Vegas City

Charter, § 4.010 at 533 (1979) ("There

shall be a municipal court of the city to

which the provisions of chapter .. . 266

of NRS, relating to municipal courts, as

amended from time to time, shall apply").

4 1985 Nev. Stats. ch. 208, §§ 12,

14, 16, and 19(2)-(12), at 674-677. NRS

chapter 5, which applies to all municipal

courts in the state, does not contain a

provision analogous to NRS 266.550.

The provisions of this

chapter shall not be

applicable to incorporated

cities in the =-.tate of

Nevada organized and

existing under the

provisions of any special

legislative act or special

charter enacted or granted

pursuant to the provisions

of section 1 of article

VIII of the constitution of

the State of Nevada.

Las Vegas ana North Las Vegas, whose

municipal courts are the subject of the

instant dispute, are incorporated cities

existing under the provisions of special

legislative acts. See 1983 Nev. Stat. Ch.

517 at 1391-1437; 1971 Nev. Stat. Ch. 573

at 1210-1229. Consequently, the statutory

prohibition against the holding of jury

trials in the municipal courts, see NRS

266.550, does not apply to the cases

presently wvefore this court.” We therefore

need not reach the question in the instant

cases of whether NRS 266.550 is

constitutional. Accordingly, we turn to

the Nevada State and United States

Constitutions to determine whether

individuals charged with misdemeanor DUI

offenses in the Municipal courts of this

state have a constitutional right to a jury

trial.

Constitutional Grounds for Trial by Jury

The various appellants, respondents

and petitioners claim that their right to

° he other cities with special

charters are Boulder City, Caliente,

Carlin, Carson City, Elko, Gabbs,

Henderson, Reno, Sparks, Wells and

Yerington.

Only four cities incorporated under

chapter 266 of the NRS (Ely, Fallon,

Lovelock and Winnemucca) are still

statutorily authorized to deny requests for

jury trials pursuant to NRS 266.550.

jury trials in the municipal courts is

guaranteed by the United States and Nevada

State Constitutions. Article I, section 3

of the Nevada Constitution, and the sixth

amendment to the United States

Constitution, guarantee individuals a right

to a jury trial.° Nevada's constitutional

provision has been construed as confirming

and securing the right to a jury trial as

it was understood at common law. State v.

Ruhe, 24 Nev. 251, 262, 52 P. 274, 277

(1898). Thus, the right to a trial by jury

under the Nevada Constitution is

coextensive with that guaranteed by the

federal constitution.

criminal prosecutions, the accused shall

enjoy the right to a speedy and public

trial, by an impartial jury..."

Nev. Const. art. I, § 3: "The right

of trial by Jury shall be secured to all

and remain inviolate forever... .

It is well settled that the sixth

amendment right of trial by jury does not

extend to every criminal proceeding.

District of Columbia v. Clawans, 300 U.S.

617, 624 (1937). Almost one hundred years

ago, the United States Supreme Court stated

that a jury trial is not required "in that

Class or grade of offences called petty

offences, which, according to the common

law, may be proceeding against summarily in

any tribunal legally constituted for that

purpose... ." Callen v. Wilson, 127

U.S. 540, 557 (1888). Since the decision

in Callen, the Supreme Court has grappled

with the problem of drawing a line between

those criminal cases requiring a jury

trial, and those not included in the

protections of the sixth amenéement. For

example, in District of Columbia v. Colts,

282 U.S. 63 (1930), the Court considered

the offense of reckless driving at an

excessive speed, for which the maximum

punishment for a first offender was a $100

fine and 30 days in jail. Although the

penalty was not severe, the Court thought

the offense too serious to be regarded as

"petty." Id. at 73. Later, in District of

Columbia v. Clawans, 300 U.S. 617 (1937),

the court concluded that the offense of

peddling without a license, which carried a

maximum penalty of a $300 fine or 90 days

in jail, was a "petty" offense. In

reaching that conclusion the Court noted

that the offense was not a crime at common

law, and that the offense was "relatively

inoffensive." Id. at 625. The Court

added, however, "the severity of the

penalty [is] an element to be considered."

Id. The Court concluded that 90 days was

not so severe a maximum penalty as to take

the offense out of the category of "petty".

Id. at 627.

In more recent cases, the Supreme

Court has sought a more definite and

workable standard by which to decide the

question of the scope of the right to trial

by jury. Consequently, the Supreme Court

has increasingly relied on the severity of

the maximum possible sentence rather than

relying on other criteria. The search for

an objective criterion can be found in

Cheff v. Schnackenberg, 384 U.S. 373

(1966), where the court concluded that

crimes carrying possible penalties up to

six months do not require a jury trial if

they otherwise qualify as petty offenses.

The evolution continued in Duncan v.

Louisiana, 391 U.S. 145 (1968), where the

Supreme Court more clearly emphasized the

maximum authorized penalty over other

criteria in determining whether the crime

is so serious as to require a jury trial.

Id. at 159. In Duncan, the Supreme Court

stated that "the penalty authorized for a

particular crime is of major relevance in

determining whether it is serious or not

and may in itself, if severe enough,

subject the trial to the mandates of the

Sixth Amendment." Id. The Court stated

that although "it is necessary to draw a

line . . . separating petty from serious

infractions," id. at 160-61, under the

facts of the case, it was “sufficient...

to hold that a crime punishable by two

years in prison is . . . not a petty

offense." Id. at 161-62. In Frank v.

United States, 395 U.S. 147 (1969), the

Court reiterated the importance of the

severity of the maximum sentence and

disregarded the possibility of an extended

period of probation as a criterion for

concluding that an offense was serious.

The Supreme Court concluded that, of the

indicators capable of objective assessment,

the most important is the severity of the

possible sentence.

Finally, in Baldwin v. New York, 399

U.S. 66 (1970), the Supreme Court

established the maximum penalty as the only

objective criterion. Relying on Frank,

Duncan and Clawans, the Court examined the

existing laws and practice throughout the

nation and concluded:

This near-uniform judgment

of the Nation furnishes us

with the only objective

criterion by which a line

could ever be drawn--on the

basis of the possible

penalty alone--between

offenses that are and that

are not regarded as

"serious" for purposes of

trial by jury.

399 U.S. at 72-73 (footnote omitted)

(emphasis added). The court went on to

draw a line between serious and petty

offenses:

One who is threatened with

the possibility of

imprisonment for six months

may find little difference

between the potential

consequences that fact hin,

and the consequences that

faced appellant here.

Indeed, the prospect of

imprisonment for however

short a time will seldom be

viewed by the accused as a

trivial or "petty" matter

and may well result in

quite serious repercussions

affecting his career and

his reputation. Where the

accused cannot possibly

face more than six months’

imprisonment, we have held

that these disadvantages,

onerous through they may

be, may be outweighed by

the benefits that result

from speedy and inexpensive

nonjury adjudications.

Id. at 73. It thus appears that the

Supreme Court has retreated from the

position enunciated in District of Columbia

v. Colts, supra, that the nature of the

offense is of primary importance, and has

instead adopted a more workable objective

test based on the severity of the maximum

possible penalty alone.

In State v. Smith, 99 Nev. 806, 672

P.2d 631 1983), this court relied solely

upon the objective criterion of the maximum

possible penalty in its characterization of

@riving under the influence of alcohol as a

petty offense. Respondent Smith was

charged with DUI in the justice's court.

The justice's court denied Smith's demand

for a trial by jury, and Smith sought a

writ of mandamus in the district court.

The district court granted extraordinary

relief, and ordered the justice's court to

grant Smith a jury trial. This court

reversed, and concluded that a jury trial

is not constitutionally mandated:

Accordingly, we look

to the criterion expressly

established by the United

States Supreme Court:

where the maximum possible

penalty is six months

imprisonment or less, the

offense is “petty” and the

right to trial by jury does

not attach. As NRS 484.379

provides a penalty of up to

six months imprisonment for

a first-time DUI offense,

there is no constitutional

right to a trial by jury.

99 Nev. at 810, 672 P.2d at 634.

At the time of the alleged offense in

Smith, the maximum punishment for a first-

time DUI conviction in Nevada was six

months imprisonment or a fine of up to

$1,000.00. Id. See 1983 Nev. Stats. ch.

426, §§ 8, 9 and 10, at 1068 1071. In

1983, the legislature increased the minimum

penalties for misdemeanor DUI offenses.

For »xample, the legislature increased the

minimum fine for a first offense from $100

to $200 and mandated a minimum mandatory

jail sentence of two days. The maximum

penalties, however, remain unchanged.

’ Specifically, the legislature

increased the period within which a prior

offense could be used to enhance a

subsequent offense from five years to seven

years. The minimum fine for the first

offense increased from $100 to $200, in

addition to the tuition fee for an alcohol

education course the defendant must pay.

The maximum fine remains $1000. The

legislature imposed a minimum, mandatory

term of imprisonment of not less, than 2

days or the performance of 48 hours of

community service while dressed in

distinctive garb. 1983 Nev. Stats. ch.

426, § 10 at 1070. Additionally,

suspension of the first offender's driver's

license is no longer within the sentencing

court's discretion. NRS 483.460(1)(c) now

provides for mandatory revocation of the

offender's driver's license by the

Department of Motor Vehicles for a period

of ninety days. See 1983 Nev. Stats. ch.

426, § 22 at 1081. After forty-five days a

restricted license may be available. NRS

483.490(2). (Continued ...)

Although this court held in Smith

that defendants charged in Nevada with

misdemeanor DUI offenses have no right to a

jury trial, a recent decision of the

federal district court for the district of

Nevada reached the opposite conclusion.

See Bronson v. Swinney, 648 F. Supp. 1094

(D. Nev. 1986). In Bronson, the defendant

was convicted of first offense DUI

following a bench trial in the justice's

y (... continued)

Although the 1983 legislature did not

increase the second-offender's jail time or

fine ("not less than 10 days nor more than

6 months in jail .. . not less than $500

nor more than $1,000, "see NRS

484.3792(1)(b)), it increased the period of

the second offender's driver's license

revocation from six months to one year.

1983 Nev. Stats. ch. 426 §§ 22-23 at 1081-

82. See NRS 483.490(2); 483.460(1) (b) (5)

(no restricted license is available).

Neither offense is subject to plea

bargaining or probation. NRS 484.3792(3).

First and second offenders who elect to

undergo at least one year of drug or

alcohol counseling may receive reduced

sentences. See NRS 484.3794.

Since 1983, these statutory

provisions have not been amended in any

material respect.

court. After pursuing his appeal to the

state district court, the defendant

petitioned the federal district court for a

writ of habeas corpus, asserting that he

had been denied his constitutional right to

a jury trial. The federal district court

examined the 1983 amendments to Nevada's

DUI statutes and enumerated the many

collateral consequences that convictions

for DUI entail, such as mandatory

revocation of the driving privilege,

increased penalties for subsequent

offenses, and the publication in local

newspapers of the names of those offenders.

Although the federal district court

acknowledged that "[tjhe most important

criterion in determining the seriousness

with which society regards an offense is

the maximum authorized penalty," 648

F.Supp. at 1097, the district court looked

primarily to decisions of two three-judge

panels of the Ninth Circuit Court of

Appeals, one a split decision, which held

that factors other than the maximum

authorized penalty are relevant in

determining whether an offense is serious

or petty. Specifically, the court relied

on United States v. Craner, 652 F.2d 23

(9th Cir. 1981), in which a three-judge

panel examined the collateral consequences

of a federal DUI conviction in concluding

that DUI is a serious offense. The court

also relied on United States v. Sanchez-

Meza, 547 F.2d 461 (9th Cir. 1976), in

which a panel, in ae split decision,

concluded that misdemeanor conspiracy is a

serious offense, reasoning that the crime

was indictable at common law, was itself

morally offensive, and was malum in se.®

° In contrast, the dissent in

Sanchez-Meza, citing Baldwin v. New York,

399 U.S. 66 (1970), noted that the “Supreme

Court recently has been focusing on the

length of the potential sentence to

(Continued ...)

The federal district court then concluded

that "the nature of the offense, the

collateral consequences of a conviction...

and the fact that the penalty ot a

includes mandatory imprisonment are factors

that reflect the seriousness with which

society regards the offense of driving

while intoxicated." 648 F. Supp. at 1098.

Applying this analysis, the federal

district court reasoned:

In view of the

automatic license

revocation and mandatory

jail sentence that

accompany a conviction for

driving while intoxicated,

. (...continued)

determine whether an offense is petty."

547 F.2d at 465. Consequently, the dissent

concluded that because the defendant was

subject to a maximum penalty of only six

months imprisonment, under the "most

relevant" criterion announced by the

Supreme Court, the offense, as a

misdemeanor, was petty with no entitlement

to a jury. Id.

in view of the system of

increasing minimum

punishments for subsequent

offenses, and in view of

the opprobrious nature of

the offense, it is apparent

that driving while

intoxicated is an offense

regarded as serious by the

people of the State of

Nevada. It is an offense

serious enough to require a

jury trial under the Sixth

and Fourteenth Amendments

to the United States

Constitution.

648 F.Supp. at 1100. The federal court

distinguished our holding in Smith, noting

that in Smith this court considered the DUI

penalties in effect in Nevada prior to the

legislature's 1983 amendments. id.

Further, the federal court criticized the

analysis in Smith as "too restricted,"

because in determining whether or not the

offense was serious, this court "looked

only to the maximum imprisonment

- authorized." Id. The federal district

court concluded that "[t]jhe people of the

State of Nevada, through their legislature

and in other ways, have clearly evinced a

feeling that driving while intoxicated is a

serious crime." Id.

In the present case, the proponents

of the position that DUI is a "serious"

offense requiring a jury trial argue that

this court should adopt the reasoning in

Bronson and overturn Smith. We disagree.

We note initially that the decisions

of the federal district court and panels of

the federal circuit court of appeal are not

binding upon this court. United States ex

rel. Lawrence v. Woods, 432 F.2d 1072,

1075-76 (7th Cir. 1970), cert. denied, 402

U.S. 983 (1971). Even an en banc decision

of a federal circuit court would not bind

Nevada to restructure the court system of

this state. Our state constitution binds

the courts of the State of Nevada to the

United States Constitution as interpreted

by the United States Supreme Court. Nev.

Const. art. I, § 2. See Bargas v. Warden,

87 Nev. 30, 482 P.2d 317, cert. denied, 403

U.S. 935 (1971). Further, we have

respectfully concluded that Bronson, and

the decisions of the 9th Circuit panels

upon which the federal district court

relied, represent an unnecessary and

unwarranted expansion of the Supreme

Court's holding in Baldwin.

As demonstrated above, the collateral

consequences of a conviction have not been

a criterion relied upon in the recent

decisions of the United States Supreme

Court. See Baldwin v. New York, 399 U.S.

66 (1970); Frank v. United States, 395 U.S.

147 (1969); Duncan v. Louisiana, 391 U.S.

145 (1968); see also Taylor v. Hayes, 418

U.S. 488 (1974); Codispoti v. Pennsylvania,

418 U.S. 506 (1974). Moreover, the Court's

references to “line drawing" in Duncan and

Baldwin, and its increasing reliance upon

the maximum punishment as the _ sole

criterion for characterizing offenses as

"serious" or "petty," suggest that only the

maximum punishment for an offense need be

examined to determine whether a jury trial

is constitutionally mandated. Further, in

Baldwin, the Supreme cCOurt' specifically

drew a line of demarcation between

"serious" and "petty" offenses; if the

maximum authorized punishment is less than

six months the offense is "petty." 399

U.S. at 73. The maximum term of

imprisonment possible in Nevada for a

misdemeanor DUI offense remains six months.

The maximum possible fine remains $1,000.

Although the minimum penalties have been

increased, the maximum penalties remain the

same. We conclude, therefore, that the

federal constitution does not require us to

overturn our holding in Smith that, under

the statutory penalties for DUI in Nevada,

the United States Constitution does not

guarantee the right to jury trials in

misdemeanor DUI cases.

Several serious policy considerations

reinforce our conclusion that we should not

abandon our holding in Smith. First, a

non-jury trial in a misdemeanor case is

speedy and inexpensive. On the other hand,

a decision of this court requiring jury

trials in the prosecution of DUI offenses

in the municipal court would result in

tremendous expense to the municipalities

of this state. For example, courtrooms

would require renovation, and in some cases

expansion or replacement, in order to

accommodate jurors. The increased time

required to conduct jury trials would in

many instances occasion a need for

municipalities to employ more judges and

more personnel, and to build still further

courtrooms. These expenses would be

exacerbated beca''se, in DUI cases, the

prosecutor is prohibited by statute from

engaging in plea bargaining. See NRS

484.3792(3). The resulting expense to the

municipalities may actually deter the

prosecution of DUI offenses. Thus,

requiring jury trials in municipal courts

for DJI cases could mandate a lack of

action against those who drink and drive.

"As a practical matter, the lower courts

are not going to try [DUI] cases if a jail

sentence is involved. It is difficult to

justify a $500 to $1000 jury so that a

defendant can spend [two days] in jail.

Economics will prevail over justice."

Brenner v. City of Casper, 723 P.2d 558,

563-64 (Wyo. 1986) (Brown, J., dissenting).

In addition to the expense imposed

upon the municipalities, a jury trial is

not a cost-free transaction to the jurors,

their families and their employers,

particularly in municipalities where jurors

may be called into service for as long as a

year at a time. These burdens will weigh

heaviest upon the residents of the more

rural areas, who may be forced to travel

excessive distances for service and who may

be forced to serve with disproportionate

frequency due to the relatively few

prospective jurors in these areas.

Nor are we persuaded that the current

wave of public concern over the problem of

intoxicated drivers somehow converts

misdemeanor DUI into a "serious" offense

under the federal constitution. While this

court does not condone the commission of

any crime, the offense of DUI is no more

opprobrious than other crimes over which

the municipal court has jurisdiction, such

as indecent conduct or lewd behavior. See

NRS 266.555(2). A decision giving

individuals charged with DUI in the

municipal courts the right to a jury trial

could arguably then be extended to any

offense currently the subject of a ground

swell of public opinion.

Moreover, a decision of this court

mandating jury trials in DUI cases would

create numerous unresolved administrative

problems. Procedures for the summons and

selection of jurors in the municipal courts

do not exist. A decision requiring jury

trials in the municipal courts could not be

implemented until such procedures were

developed. This court is not in a position

to legislate the procedures to be followed

in such cases. Further, the legislature of

this state, which meets once every two

years, is not presently in session to fill

the void. Also unresolved would be the

issues of whether the proposed jury could

be comprised of fewer than twelve jurors,

and whether the verdict must be unanimous.

See Parkham v. Municipal Court, City of

Sioux Falls, 199 N.W. 2d 501, 508 (S.D.

1972) (Bielgelmeier, J., dissenting, citing

"The Six-Man Jury," 17 S.D. Law Rev. 285).

Presently, juries in criminal trials held

in the district courts of the State of

Nevada are comprised of twelve jurors, who

must reach a unanimous verdict. If this

court were to legislate a lower standard

for municipal courts, we are not convinced

that a jury, comprised of a minimum number

of members or required to reach less than a

unanimous verdict, would necessarily render

a decision more reliable than that of a

judge. If some higher standard is

required, then this court would be fixing

greater protections for violators of city

ordinances than the United States Supreme

Court requires states to provide in felony

prosecutions.

Finally, we note that in Nevada's

outlying communities, due to the

demographic and economic realities of our

rural areas, municipal courts have for the

most part been staffed by non-lawyer

judges. Some of these judicial posts are

part-time positions. Attorneys are scarce,

and, historically, the few present have

chosen to pursue other endeavors--with the

result that the lower judicial posts have

developed upon intelligent and popular

laypersons.

In our view, as it has developed,

Nevada's court system has been successful.

Our legislature has provided adequate

funding for judicial education, and has

mandated that all non-lawyer judges must

attend The National Judicial College,

located in Reno. See NRS 5.025; 5.026. In

addition, at least twice yearly, ovr court

conducts seminars on continuing legal

education for such judges. We also send a

number of them out-of-state each year, for

seminars of the American Academy of

Judicial Education and the American Judges

Association, and for other programs focused

on the needs of non-lawyer judges. As a

result, over time, Nevada has developed a

cadre of lay municipal court judges who, in

this court's opinion, are conscientious,

well trained in the substantive law of the

misdemeanor offenses that are within their

jurisdiction, and competent to conduct non-

jury trials relating to such offenses--

including DUI matters. In short, we

believe Nevada's system works, and works

well.

Knowing our judges, however, we would

be concerned about imposing upon all of our

lay municipal court judges such novel and

additional burdens as supervising voir dire

examinations of jurors, ruling upon

challenges for cause, safeguarding jurors

against undue publicity,and formulating

written jury instructions to govern the

various offenses within their jurisdiction.

The matter of jury instructions is

particularly troubling. We think we can

train, and have trained, our lay municipal

court judges to understand the legal

precepts necessary to manage the bench

trials they conduct in DUI cases and other

misdemeanor matters fairly. However, as

highly as Nevada's lay judges are regarded

by this court and by the communities they

serve, we fear that the formulation of

written jury instructions might require

additional linguistic and legal _ skills,

beyond the background of some very

effective judges now serving in our smaller

municipal courts. And, if imposing jury

trials upon such courts’) ultimately

necessitated a change to a system of all

law-school-trained judges, we are not at

all persuaded that the quality of justice

in those courts would improve. Rather, the

result might well be that some very

competent lay judges, well respected and

accepted by their constituents, would be

replaced by persons who, though possessing

law degrees and licenses, would not merely

be strangers to the communities they would

come to serve. They also might be

something less than the better product of

American law schools, and less than the

persons they arrived in town to replace.

These significant issues relating to

serious financial, administrative, and

policy concerns should be resolved by the

legislature, after it has conducted

appropriate hearings and investigations

regarding the implications of the various

alternatives. "Judicial restraint is a

worthwhile practice when the proposed new

doctrine may have implications far beyond

the perception of the court asked to

declare it." Hamm v. Carson City Nugget,

Inc., 85 Nev. 99, 101, 450 P.2d 358, 359

(1969). The position of the federal

district court in Bronson, were it to be

adopted by this court today, would have

just such far reaching implications. Our

extension of jury requirements to cases

arising in the municipal court, when the

current decisions of the United States

Supreme Court are contrary, would in our

view impose upon the domain of the

legislature. Moreover, if such a drastic

change in the interpretation of the federal

constitution is to be judicially mandated,

such a decision must come from the United

States Supreme Court. While we have great

respect for the federal court that rendered

the decision in Bronson, we are unwilling

to impose upon the municipalities of this

state the burden of conducting jury trials

based solely upon that court's

interpretation of the federal constitution,

which we believe is at odds with the

current decisions of the United States

Supreme Court.

Other jurisdictions have similarly

concluded that the federal constitution

does not guarantee DUI defendants a right

to jury trials in misdemeanor cases.

Justiniano Matos v. Gasper Rodriguez, 440

F. Supp. 673, 677 (D.P.R. 1976) ("the

doctrine of District of Columbia v. Colts,

supra, wherein primary importance was given

to the nature of the offense, is no longer

applicable"); Hilliard v. City of

Gainesville, 213 So.2d 689, 691 (Fla. 1968)

("the maximum penalty which can be

prescribed by [the] Florida municipal [DUI]}

ordinance is well below the "petty offense"

maximum [of six months’ imprisonment]

indicated by cCheff v. Schnackenberg,

supra"); (State v. Young, 234 N.W.2d 196,

197 (Neb. 1975) (where the maximum penalty

for second offense DUI is three months,

there is no entitlement to a jury trial

under the United States Constitution);

Brenner v. City of Casper, 723 P.2d 558,

561 (Wyo. 1986) ("[{w]jhile recognizing the

standard utilized by the United States

Supreme Court, it is our conclusion that

greater protection is afforded by the

Wyoming Constitution"). Those states

providing jury trials in misdemeanor DUI

cases do so pursuant to express statutory

provisions or their own state

constitutions.” Only one state arguably

has interpreted the federal constitution to

require a jury trial in DUI cases where the

maximum penalty does not exceed six months

imprisonment. See State v. O'Brien, 704

P.2¢d 883 (Haw. 1985). As noted above, we

believe the Supreme Court decisions

interpreting the sixth amendment do not

require such a conclusion.

See, e.g., Rothweiler v. Superior

Court of Pima County, 410 P.2d 479 (Ariz.

1966) (charge of DUI deemed a "criminal

prosecution" and therefore a right to jury

trial exists under Arizona Constitution);

Fisher v. State, §04 A.2d 626 (Md. 1986)

(criminal defendant charged with offense

for which the maximum penalty exceeds

ninety days is entitled to a jury trial

under Maryland Constitution); Brown v.

Multnomah County Dist. Court, 570 P.2d 52

(Ore. 1977) (charge of DUI deemed a

"criminal prosecution" for purposes of

determining right to a jury trial under

Oregon Constitution which guarantees jury

trials in all "criminal prosecutions") ;

Brenner v. City of Casper, 723 P.2d 558

(Wyo. 1986) (crime punishable by jail tern,

regardless of length, was serious crime for

which a jury trial is required under

Wyoming Constitution).

In conclusion, absent an express

pronouncement by the Supreme Court of the

United States, judicial restraint dictates

that this court, in resolving the

constitutional question before us, CGecline

to take guidance from the supreme courts of

other states interpreting their own state

statutes and state constitutions, or from

the lower federal courts who have, in our

view, extended the current decisions of the

United States Supreme Court. Especially in

view of the substantial ramifications such

a holding would entail, we consider it

inappropriate to look beyond the parameters

currently defined by the United States

Supreme Court and require jury trials in

misdemeanor DUI cases.

We therefore affirm the district

court orders denying the petitions for

writs of mandamus in Docket Numbers 17940,

17976, 17997, 17998, 17999, - 18000 and

18140. We reverse the district court

ee mn tail

orders granting petitions for writs of

mandamus in Docket Numbers 18032 and

18073, and remand these matters for further

proceedings consistent with this opinion.

We grant the original petition for a writ

of certiorari in Docket Number 18065,and

instruct the clerk of this court to issue a

writ of certiorari, forthwith, compelling

the district court to vacate its order

reversing Fraley's conviction and to enter

a new order consistent with this decision.

We deny the original petition for writ of

prohibition in Docket Number 18092.

, Cc J

Gunderson

We concur:

sy J.

Steffen

» Te

Young

7, J.

Springer

7 J.

Mowbray

ENTERED CAROLE FITZGERALD

OCT 1 - 1986 CLERK

CLERK US DISTRICT COURT SEP 29 2:07PM'86

DISTRICT OF NEVADA RECEIVED

_fs/ AND FILED

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

BRENT R. BRONSON,

Petitioner, CV-R-86-130-ECR

Vv. __MEMORANDUM_ DECISION

__AND_ ORDER

VINCENT SWINNEY, et al.,

Respondents.

: y

Brent R. Bronson petitions this Court

for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. He asserts that he was

denied his constitutional right to a jury

trial.

On December 29, 1984, petitioner was

stopped on Interstate Route 80 by a Nevada

Highway Patrol officer for speeding and

weaving. Petitioner failed a _ field

Aid aris

sobriety test and was transported to the

county jail for a chemical test, which he

refused.

Petitioner was charged with three

misdemeanors: driving while intoxicated,

failure to drive within one traffic lane,

and unnecessary waste of a resource

currently in short supply. Under Nevada

law a first offense of driving while

intoxicated is punishable by payment of

tuition for and attendance of an

educational course on the abuse of alcohol

and controlled substances, imprisonment for

not less than two days nor more than six

months ir jail (or performance of forty-

eight hours of work for the community while

dressed in distinctive garb), and a fine of

not less than $200 nor more than $1,000.+

NRS $ 484.3792. In addition, there are

collateral consequences of a conviction for

driving while intoxicated that will be

discussed below. Failure to drive within

one traffic lane is punishable under Nevada

law by imprisonment in the county jail for

not more than six months, or a fine of not

more than $1,000, or both. NRS §§ 484.305,

484.251, 193.150. The offense of wasting a

resource in short supply, committed by

driving between the speeds of fifty-five

and seventy miles per hour, is punishable

under Nevada law by a fine of $5. NRS §

484.362.

The criminal complaint was filed in

Reno Justice Court. Petitioner filed a

demand for a jury trial, which was denied.

A bench trial ensued. Petitioner was

convicted on all three counts; he was

sentenced to four days in jail, fined $430,

ordered to pay a $30 administrative

assessment, and ordered to attend an

educational course on the abuse of alcohol

and controlled substances. On appeal the

district court affirmed the convictions,

but held that petitioner could not receive

separate sentences for driving while

intoxicated and for failing to drive within

one traffic lane since those offenses arose

from identical circumstances and merged for

purposes of sentencing. The court remanded

for resentencing with the requirement that

the sentence not exceed the maximum penalty

for commission of a single misdemeanor.

Upon remand, the justice court sentenced

petitioner to four days imprisonment in the

county jail and imposed a fine of $460.

Petitioner appealed to the Nevada Supreme

Court, but that court dismissed for lack

of jurisdiction.

While in custody, petitioner applied

for habeas corpus relief contending that

the Nevada court's refusal to allow him a

jury trial violated his constitutional

rights.

The Sixth Amendment to the

Constitution of the United States provides:

"In all criminal prosecutions, the accused

shall enjoy the right to a speedy and

public trial, by an impartial jury ..."

The United States Supreme Court, in Duncan

v. Louisiana, 391 U.S. 145 (1968), held

that the right to trial by jury guaranteed

by the Sixth Amendment is a fundamental

right and is one guaranteed as against the

states by the Fourteenth Amendment.

Explaining why the right to trial by

jury is fundamental, Jvstice White wrote:

The guarantees of jury

trial in the Federal and State

Constitutions reflect a

profound judgment about the way

in which law should be enforced

and justice administered. A

right to jury trial is granted

to criminal defendants in order

to prevent oppression by the

Government. Those who wrote

our constitutions knew from

history and experience that it

was necessary to protect

against unfounded criminal

charges brought ‘to eliminate

enemies and against judges too

responsive to the voice of

higher authority. The framers

of the constitutions strove to

create an independent

judiciary but insisted upon

further protection against

arbitrary action. Providing an

accused with the right to be

tried by a jury of his peers

gave him an inestimable

Safeguard against the corrupt

or overzealous prosecutor and

against the compliant, biased,

or eccentric judge. If the

defendant preferred the common-

sense judgment of a jury to the