Joint Appendix — Blanton v. North Las Vegas
Supreme Court brief1989
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MELVIN R. BLANTON,
MARK D. FRALEY,
Petitioners,
vs.
CITY OF NORTH LAS VEGAS,
NEVADA
Pespondent.
+
On Writ of Certiorari to the Supreme Court
of the State of Nevada
+
JOINT APPENDIX
Graves, Leavitt & Kocn Crry or Nortnu Las Vecas
Joun J. Graves, Jr., Eso. Roy A. Woorter, Eso.
601 South Sixth Street Nortn Las Vecas
Las , Nevada 89101 Crry ATTORNEY
(702) 385-7277 Mark et aay mn Esa.
ui Deputy Crry ATTORNEY
a — 2200 Civic Center Drive
North Las V , NE 89030
> Se Esq. (702) 649-02
#633 City of North Leo Vega
Las Vegas, Nevada 89106 ““#¥ Of egas
(702) 3155 ATToRNEY GENERAL
Coun for Pettiner _ Sat Maloam Compl
Mark D. Fraley =
(702) 3420
Petition ror Wart or CerTiorari Ficep Fesruary 26, 1988
Certiorari! GRANTED JUNE 20, 1988
COCROR CALL COLLET ai) 3281
i
TABLE OF CONTENTS
Page
Municipal Court Relevant Docket Entries .......... 1
District Court Relevant Docket Entries............. 2
Supreme Court Relevant Docket Entries ........... 4
Municipal Court Demand for Jury Trial (Blanton)... .. 6
Motion to Strike Demand for Jury Trial (Blanton)..... 7
Municipal Court Demand for Jury Trial (Fraley)... 11
Petition for Writ of Mandamus (Blanton) .......... 13
Notice of Appeal to District Court (Fraley) ........ 16
Answer to Petition for Writ of Mandamus......... 18
Decision and Order (Blanton)................-..++. 20
Notice of Appeal to Nevada Supreme Court (Blanton) -
District Court Demand for Jury Trial (Fraley) ...... 23
Decision and Order (Fraley) ..............-.+60005. 25
Petition for Writ of Certiorari to Nevada Supreme
Se Rccccccscnceccendssocosscccscocccececccecoes 28
Appellant’s Opening Brief (Blanton) ............... 53
Answer to Petition for Writ of Certiorari (Fraley).. 65
Respondent’s Answering Brief..................... 73
Appellant’s Reply Brief (Blanton).................. 97
Writ of Certiorari (Fraley) .................00000005 100
Writ of Certiorari Granted (Blanton)............... 102
Writ of Certiorari Granted (Fraley) ................ 103
CITY OF NORTH LAS VEGAS MUNICIPAL COURT
RELEVANT DOCKET ENTRIES
DEFENDANT: BLANTON, Melvin Ray
DOCKET/CASE NO. M2648-86
CHARGE: Driving Under the Influence of Alcohol
DATE PROCEEDING
08/19/86 Defendant pled not guilty;
Attorney appeared
06/21/88 Continued City Attorney for
Status Check to 12/15/88
DEFENDANT: FRALEY, Mark D.
DOCKET/CASE NO. M2408-86
CHARGE: Driving Under the Influence of Alcohol
DATE PROCEEDING
07/15/86 Defendant Pled Not Guilty
10/28/86 Defense Motion for Jury Trial
10/28/86 Defense Motion for Jury Trial Denied
10/29/86 prvee lea of guilty; fined $300.;
as Verdes; Sentenced 5
5 days (credit)
10/29/86 aie, receivable $25.00 (O.R. on
, appeal per Judge Gary Davis); bond
exonerated
11/04/86 Appeal filed
2
EIGHTH JUDICIAL DISTRICT COURT
CLARK COUNTY, STATE OF NEVADA
RELEVANT DOCKET ENTRIES
DEFENDANT: BLANTON, Melvin R.
DOCKET/CASE NO. A252811
DATE
12/30/86
PROCEEDING
SET BRIEFING SCHEDULE. Peti-
tioner represented by counsel, John J.
Graves, Jr. Respondents represented by
counsel, DCA, Mark Zalaoras. Counsel
submitted the matter on the Briefs.
COURT ORDERED, under
advisement.
DEFENDANT: FRALEY, Mark D.
DOCKET/CASE NO. C76512
DATE
12/12/86
01/30/87
01/22/88
PROCEEDING
ARRAIGNMENT. a of North
Las Vegas represented by Mark
represen at
Esa. ms mpsmentad by Je a not gu guilty
plea. Mad sequested 0 jury tstal ehic
was denied.
DEFENDANT’S MOTION TO DIS-
MISS. COURT ORDERED, previous
order for continuance vacated and the
Court having found jury demand was
made in proper time, ORDERED,
matter
remanded to City of North Las Vegas
for jury trial.
AT REQUEST OF COURT. Court
received an Order from the Supreme
Court d this Court to vacate
revious Sentence. COURT
RDERED, matter continued two
03/11/88
3
weeks, aes See 6 cogeee © Seay
Order from the Supreme
STATUS CHECK. Court received Stay
Order from Su Court, indicating
Mr. Watkins has filed Writ of Certiorari
with United States Supreme Court,
COURT ORDERED, continued six
months for status check.
4
SUPREME COURT OF THE STATE OF NEVADA
RELEVANT DOCKET ENTRIES
DEFENDANT: BLANTON, Melvin R.
DOCKET/CASE NO. 17940
DATE
02/25/87
05/26/87
06/22/87
07 /24/87
09/02/87
09/18/87
12/31/87
PROCEEDINGS
Filing RECORD ON APPEAL
(original).
ORAL ARGUMENT is set for
09/18/87 at 8:15 a.m. - 1 hour - Car-
son City.
Filing APPELLANT’S OPENING
BRIEF
Filing RESPONDENT’S ANSWER-
ING BRIEF
Filing APPELLANT’S REPLY BRIEF
ORAL ARGUMENT; Submitted.
Filing OPINION - “Affirm Docket No.
17940
DEFENDANT: FRALEY, Mark D.
DOCKET/CASE NO. 18065
DATE
04/13/87
04/27/87
05/20/87
PROCEEDING
Filing PETITION FOR WRIT OF
CERTIORARI.
Filing SUPPLEMENT OF RECORD
BELOW TO PETITION FOR WRIT
OF CERTIORARI.
Filing ORDER we consolidate these
cases for the purpose of oral argument
an No. 18065. We stay further
eye against real partyin inter-
aley in North Vegas
Municipal 7 Case No. M-2408.86,
05/26/87
07/01/87
09/18/87
12/31/87
12/31/87
5
ing our decision upon the merits
of the petitions.
ORAL ARGUMENT is set for
09/18/87 at 8:15 a.m. - 1 hour — Car-
son City.
Filing ANSWER TO PETITION FOR
A WRIT OF CERTIORARI.
ORAL ARGUMENT; Submitted.
rom OPINION - grant petition No.
Issuing WRIT OF CERTIORARI
NORTH LAS VEGAS MUNICIPAL COURT
CLARK COUNTY, NEVADA
THE CITY OF
NORTH LAS VEGAS,
Plaintiff,
Case No. M2648-86
DEMAND FOR
vs. JURY TRIAL
MELVIN RAY BLANTON,
(Filed October 3, 1986)
Defendant.
Oe Oe ee eee ee
COMES NOW, Defendant, MELVIN RAY BLANTON,
by and through his attorney, JOHN J. GRAVES, JR., ESQ.,
and makes Demand for a Jury Trial on the within charge
of Driving Under the Influence pursuant to the Sixth
Amendment to the United States Constitution, and pur-
suant to the federal District Court Case of Bronson v.
Swinney, CV-R-86-130, ECR, ordering a Jury Trial in Driv-
ing Under the Influence cases in the State of Nevada.
DATED: this 3rd day of October, 1986.
GRAVES, LEAVITT, CAWLEY & KOCH
/s/ John J. Graves, Jr.
JOHN J. GRAVES, JR., ESQ.
Attorney for Defendant
601 South Sixth Street
Las Vegas, Nevada 89101
CERTIFICATE OF SERVICE BY MAIL
I hereby certify and affirm that on the 3rd day of
October, 1986, | deposited for mailing a copy of the
foregoing DEMAND FOR JURY TRIAL with postage fully
prepaid thereon addressed to the following:
North Las Vegas City Attorney’s Office
1928 N. Bruce
North Las Vegas, Nevada 89030
™ i a eae
7
/s/
An employee of
JOHN J. GRAVES, JR., ESQ.
NORTH LAS VEGAS MUNICIPAL COURT
CLARK COUNTY, NEVADA
MELVIN RAY BLANTON,
Defendant.
THE CITY OF
NORTH LAS VEGAS, ) Case No. M-2648-86
— } MOTION TO STRIKE
vs. } DEMAND FOR
) JURY TRIAL
)
COMES NOW the CITY OF NORTH LAS VEGAS, by
and through its attorney, ROY A. WOOFTER, City Attor-
ney, by MARK L. ZALAORAS, Deputy City Attorney, and
moves this Court to strike the demand for jury trial filed
by the Defendant on Friday, October 3, 1986. This Motion
is made and based upon the following Points and
Authorities.
DATED this 9th day of October, 1986.
ROY A. WOOFTER, CITY ATTORNEY
CITY OF NORTH LAS VEGAS
By /s/ Mark L. Zalaoras
MARK L. ZALAORAS
oy City Attorne
1301 East Lake Mea
North Las Vegas, NV 89030
Attorney for Plaintiff
POINTS AND AUTHORITIES
A. FACTS
The Defendant is charged pursuant to NRS 484.379
with Driving Under the Influence of Alcohol on July 18,
1986, at 9:10 p.m. in the 3500 block of East Lake Mead
Boulevard, which is in the City of North Las Vegas.
The Defendant has filed a demand for jury trial
based upon the Sixth Amendment to the United Stat-s
Constitution and a federal district court decision
announced last week in Reno, Nevada. The City Attor-
ney’s office has been apprised of the demand by virtue of
the Municipal Court Clerk’s Office supplying my office
with a copy of the demand. Even though the City Attor-
ney’s office is immediately adjacent to the Court, Defen-
dant has not provided for a receipt of copy to my office.
He has however attached to his Demand a certificate of
mailing specifying that a copy was mailed to this office.
The Demand for Jury Trial was filed October 3rd at
2:12 p.m. The trial date is scheduled for October 15, 1986
at 1:30 p.m.
B. ARGUMENT
The Defendant is not entitled to a jury trial for a
misdemeanor DUI prosecution where the maximum
authorized penalty is six (6) months in jail or less. In State
v. Smith, 99 Nev. 806 (1983), the Nevada Supreme Court
stated:
“Persons are guaranteed the right to a jury trial
by both art. I, section 3 of the Nevada Constitution,
and the sixth amendment to the United States Consti-
tution. Despite apparently significant differences in
the language of these constitutional provisions, both
a are
9
provisions have been interpreted to guarar.tee the
right to a jury trial in a criminal matter only as it
existed at common law. Thus, there is no constitu-
tional right to trial by jury for “petty” offenses. See
Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444
(1968); State v. Ruthe, 24 Nev. 251, 52 P. 274 (1898).
Whether there is a constitutional right to a trial by
jury therefore turns upon whether the offense
charged is characterized as “serious” or “petty.” See
Duncan v. Louisiana, 391 U.S. at 159. In turn, the
principal criterion used in characterizing an offense
as “petty” or “serious” is the severity of the maxi-
mum authorized penalty. See Baldwin v. New York,
399 U.S. 66, 90 S. Ct. 1886 (1969); Bloom v. Illinois,
391 U.S. 194, 211, 88 S.Ct. 1477 (1968).
In recent decisions, the United States Supreme
Court has increasingly relied upon the objective crite-
rion of the maximum possible penalty in deciding
whether to characterize an offense as “petty” or
“serious”. See Taylor v. Hayes, 418 U.S. 488, 94 S.Ct.
2697 (1974); Codispoti v. Pennsylvania, 418 U.S. 506,
94S. Ct. 2687. Using this criterion, the Court has held
that where the maximum passible penalty is six
months imprisonment or less, the offense is “petty,”
and the right to trial by jury does not attach. See
Codispoti v. Pennsylvania, 418 U.S. at 512.
At the time of the alleged offense, the maximum
punishment for a first-time DUI conviction in Nev-
ada under NRS 484.379 was six months imprison-
ment or a fine of up to $1,000.00. As the potential
maximum term of imprisonment is six months, it
would appear that respondent Smith’s offense was
“petty” within the Supreme Court’s definition, and
that there is thus no constitutional right to trial by
jury in his DUI prosecution.
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
10
right to trial by jury does not attach. As NRS 48. 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. The district court thus erred in
granting the writ of mandamus to compel the jus-
tice’s court to grant respe-dent a jury trial in his
pending DUI prosecution.” id. at page 809-810.
See also Exhibit A attached hereto, which is a 1975
unpublished federal district court decision denying a jury
trial for a misdemeanor prosecution. In the attached opin-
ion, there is a lengthy and well documented legal history
for not permitting jury trials for misdemeanor DUI
prosecutions.
Respectfully submitted,
ROY A. WOOFTER, CITY ATTORNEY
City of North Las Vegas
By MARK L. ZALAORAS
Deputy City Attorne
1301 East Lake Mea
North Las Vegas, NV 89030
Attorney for Plaintiff
RECEIPT OF COPY
RECEIPT OF COPY of MOTION TO STRIKE
DEMAND FOR JURY TRIAL is hereby acknowledged this
__. day of October, 1986.
GRAVES, LEAVITT, CAWLEY & KOCH
By
601 South Sixth Street
Las Vegas, Nevada 89101
Attorneys for Defendant
11
CASE NO. __
DEPT. NO. __
IN THE MUNICIPAL COURT OF
THE CITY OF NORTH LAS VEGAS
COUNTY OF CLARK, STATE OF NEVADA
THE CITY OF NORTH )
LAS VEGAS, NEVADA,
Plaintiff, DEMAND FOR
JURY TRIAL
vs.
MARK D. FRALEY,
Defendant.
— es es ee ee ee
COMES NOW, Defendant, MARK D. FRALEY, by
and through his attorney JOHN G. WATKINS, ESQ. and
requests an Order pursuant to Article I, Section 3 of the
Nevada Constitution and the Sixth Amendment of the
United States Constitution directing that the instant case
be tried by jury.
This Motion is made and based upon the Points and
Authorities filed herewith and all testimony as may be
adduced at the hearing of this Motion.
DATED this 28th day of October, 1986.
/s/ John G. Watkins
JOHN G. WATKINS, ESQ.
Attorney for Defendant
333 N. Rancho Dr., #633
Las Vegas, Nevada 89106
12
POINTS AND AUTHORITIES
NRS 266.565 provides,
“The practice and proceedings in the municipal
court shall conform, as nearly as practicable, to
the practice and proceedings of justices’ courts in
similar cases, except that an appeal perfected trans-
fers the action to the district court for trial anew. The
municipal court shall be treated and considered
as a justices’ court whenever the proceedings
thereof are called into question.”
Nevada Constitution, Article I, Section 3 mandates,
“The right of trial by Jury shall be secured to all
and remain inviolate forever . . . ” (Emphasis
Added)
The United States Constitution, the Sixth Amendment
holds,
“In all criminal prosecutions, the accused shall
enjoy the = to a speedy trial, by an impartial
jury of the State and district wherein the crime
shall have been committed, which district shall
have been previously ascertained by law... ”
(Emphasis Added).
Cf., State v. Smith, 99 Adv. Op. 172 (1983) (State v. Smith, is
inapplicable for now jail time is mandatory unlike the
situation and state of the law at the time of State v. Smith,
supra.) See also Bronson v. Swinney, et. al, #CV-R-86-130-
ECR (Dist. Ct. of Nev., 10/1/86) where the court held that
a defendant is constitutionally entitled to a jury trial in
D.U.I. misdemeanor cases.
Respectfully submitted,
/s/ John G. Watkins
JOHN G. WATKINS, ESQ.
13
Attorney for Defendant
333 N. Rancho Dr., #633
Las Vegas, Nevada 89106
RECEIPT OF COPY
RECEIPT OF A COPY of the above and foregoing
DEMAND FOR JURY TRIAL is hereby acknowledged this
__. day of October, 1986.
North Las Vegas
City Attorney’s Office
By:
DISTRICT COURT
CLARK COUNTY, NEVADA
MELVIN RAY BLANTON, a
Petitioner, ) CASE NO.
as ‘ A251117
THE NORTH LAS VEGAS ) DEPT. NO. IV
MUNICIPAL COURT, NORTH LAS ?
VEGAS, NEVADA AND THE PETITION FOR
(Real Party in Interest)
)
HONORABLE GARY DAVIS, ) WRIT OF
MUNICIPAL JUDGE THEREOF, . MANDAMUS
Respondents. )
CITY OF NORTH LAS VEGAS, ) Filed November
NEVADA, 3, 1986)
)
)
TO: The Honorable GARY DAVIS, Municipal Judge of
the North Las Vegas Municipal Court, North Las
Vegas, Nevada
14
TO: The Honorable ROY WOOFTER, North Las Vegas
City Attorney
TO: The Honorable D. BRIAN McKAY, Attorney Gen-
eral, State of Nevada
GREETINGS
The Petition of Melvin Ray Blanton by and through
his attorney JOHN J. GRAVES, JR., ESQ., respectfully
shows:
1. That the Petitioner makes application herein for a
Writ of Mandamus (N.R.S. 34.150, et.seq.) to Order the
North Las Vegas Municipal Court to grant a Jury Trial to
your Petitioner on his driving under the influence charge
pursuant to the Sixth Amendment to the United States
Constitution.
2. No plain, speedy, or adequate remedy exists in
law for your Petitioner other than by extraordinary Writ
of this Court.
3. The Municipal Court Judge abused his discretion
in denying Petitioner a Jury Trial on or about October 3,
1986, and should be compelled by this Court to exercise
his duty, not his discretion, to Order said Jury Trial.
4. An indefinite Stay has been entered by the North
Las Vegas Municipal Judge pending proceeding before
this Court.
5. Petitioner requests that the City of North Las
Vegas, Nevada, by and through its attorney, the North
Las Vegas City Attorney, be Ordered to Answer the Peti-
tion herein, and to file Points and Authorities in answer
to Petitioner’s and to grant Petitioner a time to Reply.
15
6. Petitioner expressly brings this Petition to the
Court solely on federal constitution issues, pursuant to
the 1985 State of Nevada driving under the influence
statute (N.R.S. 484.379, et seq.)
7. That no other Petition for Extraordinary Relief or
appeal has heretofore been filed on behalf of said Peti-
tioner on this particular issue.
WHEREFORE, Petitioner prays that this Honorable
Court Order the North Las Vegas Municipal Court to
grant Petitioner’s Demand for Jury Trial.
GRAVES, LEAVITT & KOCH
/s/ John J. Graves, Jr.
Joun J. Graves, Jr., Esa.
Attorney for Petitioner
601 South Sixth Street
Las Vegas, Nevada 89101
STATE OF NEVADA )
Ss:
COUNTY OF CLARK )
MELVIN R. BLANTON, being first duly sworn upon
his oath, deposes and says:
That he is the Petitioner in the above-entitled matter;
that he has read the above and foregoing PETITION and
knows the contents thereof to be true of his own knowl-
edge except for those matters therein stated upon infor-
mation and belief and as to those matters, he believes
them to be true.
16
/s/ Melvin R. Blanton
MELVIN R. BLANTON
SUBSCRIBED and SWORN to before me
this 30th day of October, 1986.
/s/ Beverley J. Jones
NOTARY PUBLIC in and for said
County and State.
CASE NO. M2408-86
IN THE MUNICIPAL COURT OF
THE CITY OF NORTH LAS VEGAS
COUNTY OF CLARK, STATE OF NEVADA
THE CITY OF NORTH )
LAS VEGAS, NEVADA,
)
inti NOTICE OF
Plaintiff, . APPEAL
vs.
MARK D. FRALEY ) (Filed November 4, 1986)
Defendant. )
TO: THE HONORABLE JUDGE OF THE MUNICIPAL
COURT OF THE CITY OF NORTH LAS VEGAS,
COUNTY OF CLARK, STATE OF NEVADA, and
TO: THE CITY ATTORNEY FOR THE CITY OF NORTH
LAS VEGAS, NEVADA.
YOU, AND EACH OF YOU WILL PLEASE TAKE
NOTICE that MARK FRALEY, the Defendant in the
above-entitled action, does hereby appeal to the Eighth
Judicial District Court of the State of Nevada, in and for
the County of Clark, from the judgment of the above- |
17
entitled Court, finding the Defendant guilty of violating
DRIVING UNDER THE INFLUENCE OF ALCOHOL and
from sentence of said Court, being fined $300.00 and/or 0
days.
This Appeal is taken from questions of both law and
fact.
DATED at Las Vegas, Nevada, this 3rd day of Nov.,
1986.
/s/ John G. Watkins
JOHN G. WATKINS, ESQ.
Attorney for Defendant
333 N. Rancho Dr., #633
Las Vegas, Nevada 89106
RECEIPT OF COPY
RECEIPT OF COPY of the above and foregoing
NOTICE OF APPEAL is hereby acknowledged this 4th
day of November, 1986.
NORTH LAS VEGAS, CITY
ATTORNEY’S OFFICE
By: /s/ Mark L. Zalaoras
Deputy City Attorney
18
DISTRICT COURT
CLARK COUNTY, NEVADA
MELVIN RAY BLANTON, ) CASE NO.
Petitioner, ) 252811
em ) DEPT. NO. VIII
THE NORTH LAS VEGAS ) R. i
MUNICIPAL COURT, NORTH LAS ? wane On
VEGAS, NEVADA AND THE ) MANDAMUS
HONORABLE GARY DAVIS, )
MUNICIPAL JUDGE THEREOF, Date of Hearing:
Respondents. 12/30/86
CITY OF NORTH LAS VEGAS, )_ Time of Tiearing:
NEVADA, ) 9:00 AM.
(Real Party in Interest) . oan Sate
COMES NOW the Respondents, NORTH LAS
VEGAS MUNICIPAL COURT; THE HONORABLE GARY
DAVIS, JUDGE THEREOF; and the CITY OF NORTH LAS
VEGAS, NEVADA, by and through their attorney, ROY
A. WOOFTER, City Attorney, by and through MARK L.
ZALAORAS, Deputy City Attorney, and for their Answer
to the Petition for Writ of Mandamas respectfully admit,
deny and allege as follows:
1. Respondents admit all of the allegations con-
tained in Paragraph One of the Petition.
2. Respondents deny each and every allegation con-
tained in Paragraph Two of the Petition.
3. Respondents deny each and every allegation con-
tained in Paragraph Three of the Petition.
4. Respondents admit each and every allegation
contained in Paragraph Four of the Petition.
19
5. Respondents admit all of the allegations con-
tained in Paragraph Five of the Petition.
6. Respondents admit all of the allegations con-
tained in Paragraph Six of the Petition.
7. Respondents are without sufficient knowledge
and information so as to form a belief as to the truth of
the allegations contained in Paragraph Seven of the Peti-
tion, and therefore deny the same on that basis.
WHEREFORE, Respondents pray that this Honorable
Court deny the Petition and that Petitioner take nothing
by virtue of his application for a Writ of Mandamus.
Respectfully submitted,
ROY A. WOOFTER, CITY ATTORNEY
CITY OF NORTH LAS VEGAS
By: /s/ Mark L. Zalaoras
MARK L. ZALAORAS
Deputy City Attorney
1301 East Lake Mead
North Las Vegas, Nevada 89030
Attorney for Respondents
STATE OF NEVADA )
ss:
COUNTY OF CLARK )
MARK L. ZALAORAS, being first duly sworn,
deposes and says:
That he is the attorney for the Respondents in the
above-entitled action; that he has read the foregoing
20
ANSWER TO PETITION FOR WRIT OF MANDAMUS
and knows the contents thereof; that the same is true of
his own knowledge, except for those matters therein con-
tained stated upon information and belief, and as to those
matters he believes it to be true.
/s/ Mark L. Zalaoras
MARK L. ZALAORAS
SUBSCRIBED and SWORN to before
me this 30th day of December, 1986.
/s/ Nancy Ralston
NOTARY PUBLIC
DISTRICT COURT
CLARK COUNTY, NEVADA
MELVIN R. BLANTON,
)
18 ) CASE NO.
Petitioner, ) 252811
vs. )
THE NORTH LAS bg i ; DEPT. NO. VIII
MUNICIPAL COURT, NOR oe
VEGAS, NEVADA AND THE ) DOCKET “M
HONORABLE GARY DAVIS, ) parsers
MUNICIPAL JUDGE THEREOF, ) 07 ~Spner
Respondents. '
CITY OF NORTH LAS VEGAS, ) (Filed January
NEVADA, 14, 1987)
(Real Party in Interest)
The Petitioner seeks Mandamus to compel the North
Las Vegas Municipal Court to grant Petitioner a jury trial
on a misdemeanor charge of Driving Under the Influence
of Alcohol.
21
Petitioner relies on the recent case of Bronson v. Swin-
ney, decided September 29, 1986, in the United States
District Court, District of Nevada CV-R-86-130-ECR.
Notwithstanding the holding in that case, this Court
finds that the decision in State v. Smith, 99 Nev. 806 (1983)
is dispositive of the issue.
The petition for the Writ of Mandamus is denied.
IT IS SO ORDERED.
DATED this 14th day of January, 1987.
/s/ Michael Wendell
DISTRICT JUDGE
DISTRICT COURT
CLARK COUNTY, NEVADA
MELVIN R. BLANTON, a
Petitioner, ‘ CASE NO.
re ) 252811
THE NORTH LAS VEGAS ) DEPT. NO. VIII
MUNICIPAL COURT, NORTH LAS )
VEGAS, NEVADA AND THE
HONORABLE GARY DAVIS,
MUNICIPAL JUDGE THEREOF,
Respondents.
CITY OF NORTH LAS VEGAS,
NEVADA,
(Real Party in Interest)
NOTICE
OF APPEAL
(Filed January
27, 1987)
ee eee ee ee oe
TO: THE HONORABLE GARY DAVIS, JUDGE, NORTH
LAS VEGAS MUNICIPAL COURT;
22
TO: CITY OF NORTH LAS VEGAS, NEVADA:
NOTICE IS HEREBY GIVEN that Petitioner/ Appel-
lant, MELVIN R. BLANTON, by and through his attorney
of record, JOHN J. GRAVES, JR., ESQ., appeals the
“Decision and Order” of the District Court dated and
filed January 14, 1987, denying his Petition for Writ of
Mandamus requesting a jury trial on Blanton’s misde-
meanor charge of driving under the influence of intox-
icating liquor (first offense), to the Nevada Supreme
Court.
DATED this 16th day of January, 1987.
GRAVES, LEAVITT & KOCH
/s/ John J. Graves, Jr.
JOHN J. GRAVES, JR., ESQ.
Attorney for
601 South Sixth Street
Las Vegas, Nevada 89101
CERTIFICATE OF MAILING
I hereby certify that on the 16th day of January, 1987,
I served the foregoing NOTICE OF APPEAL on the fol-
lowing attorney by depositing copies of same in sealed
envelopes in the United States Mail, postage fully pre-
paid, addressed as follows:
ROY A. WOOFTER, ESQ.
North Las Vegas City Attorney
2200 Civic Center Drive
North Las Vegas, Nevada 89030
D. BRIAN MCKAY, ESQ.
Attorney General
Capitol Complex
Carson City, Nevada 89710
23
/s/ Honorine E. Fugitt
Honorine E. Fugitt, - employee of
GRAVES, LEAVITT & KOCH
DISTRICT COURT
CLARK COUNTY, NEVADA
THE STATE OF NEVADA, _)
Appellant, Case No. C 76512
Dept. No. .
Docket No.
vs.
MARK D. FRALEY,
Respondent.
— i Se
DEMAND FOR JURY TRIAL
Hearing Date:
Hearing Time:
(Filed January 29, 1987)
COM¢cS NOW, Defendant, MARK D. FRALEY, by and
through his attorney JOHN G. WATKINS, ESQ. and
requests an Order pursuant to Article I, Section 3 of the
Nevada Constitution and the Sixth Amendment of the
United States Constitution directing that the instant case
be tried by jury.
This Motion is made and based.upon the Points and
Authorities filed herewith and all testimony as may be
adduced at the hearing of this Motion.
DATED this 29th day of January, 1987.
/s/ John G. Watkins
Joun G. Warkins, Esa.
Attorney for Defendant
333 N. Rancho Dr., #633
Las Vegas, Nevada 89106
24
POINTS AND AUTHORITIES
Nevada Constitution, Article I, Section 3 mandates,
“The right of trial by Jury shall be secured to all and
remain inviolate forever . . . ” (Emphasis Added)
The United States Constitution, the Sixth Amendment
holds,
“In all criminal prosecutions, the accused shail enjoy
the right to a = trial, by an impartial jury of the
State aad district wherein the crime shall have been
committed, which district shall have been previously
ascertained by law . . . ” (Emphasis Added).
Cf., State v. Smith, 99 Adv. Op. 172 (1983) (State v. Smith, is
inapplicable for now jail time is mandatory unlike the
situation and state of the law at the time of State v. Smith,
supra.) See also Bronson v. Swinney, et. al., #CV-R-86-130-
ECR (Dist. Ct. of Nev., 10/1/86) where the court held that
a defendant is constitutionally entitled to a jury trial in
D.U.I. misdemeanor cases.
Respectfully submitted,
/s/ John G. Watkins
JOHN G. WATKINS, ESQ.
Attorney for Defendant
333 N. Rancho Dr., #633
Las Vegas, Nevada 89106
25
RECEIPT OF COPY
RECEIPT OF A COPY of the above and foregoing
DEMAND FOR JURY TRIAL is hereby acknowledged this
29th day of Janvary, 1987.
ROY A WOOFTER, CITY ATTORNEY
CITY OF NORTH LAS VEGAS
By: /s/ Mark L. Zalaoras
Mark L. Zalaoras
Deputy City Attorney
DISTRICT COURT
CLARK COUNTY, NEVADA
MARK D. FRALEY, )
Appellant, Case No. C 76512
VS. ) Devt. No. XI
CITY OF NORTH LAS vEeGas, ) Pocket No.
Respondent. )
DECISION AND ORDER
(Filed February 13, 1987)
Appellant seeks relief in this Court through appeal
pursuant to NRS 266.595. He asserts that he was denied
his constitutional right to a jury trial by the municipal
court below.
The first issue to be decided is whether an individual
is constitutionally entitled to a jury trial for alleged viola-
tions under NRS 484.379, misdemeanor D.U.I. If the
answer is in the affirmative then a second issue arises.
26
Can NRS 266.550 be used to deny a constitutionally guar-
anteed right to trial by jury?
It must first be noted that Municipal courts are con-
stitutionally authorized and created by the legislature.
See Article 6, Section 1 of the Nevada Constitution. This
does not make them inferior but rather, once created,
they exist as a co-equal branch of local government and
are part of the constitutional judicial system of this state.
See City of North Las Vegas ex rel. Arndt v. Daines, 92 Nev.
292, 550 P. 2d 399 (1976). The functions of the municipal
court are as truly judicial in character as those of any
other court of this state. The constitutional umbrella of
protection extends to all courts of this state in exercising
their judicial functions. Id. at 295.
In Bronson v. Swinney, CV-R-86-130-ECR (10-1-86),
Federal District Judge Edward C. Reed held that individ-
uals are constitutionally entitled and guaranteed a trial
by jury when charged with a violation of NRS 484.379.
This Court agrees with Judge Reed’s analysis that these
offenses are indeed “serious” and finds his decision to be
“persuasive authority”. NRS 484.379 convictions require
mandatory jail (or performance of forty-eight hours of
community work wearing distinctive garb indicating that
the person has violated the D.U.I. law), automatic revoca-
tion of an individuals driving privilege for ninety days
and can be used to enhance punishment requiring man-
datory incarceration in the Nevada State Prison. State v.
Smith, 99 Nev. 806, 672 P. 2d 631 (1983) was a pre-1983
NRS 484.379 violation which did not require mandatory
jail or automatic revocation of the drivers license and is
therefore distinguishable.
27
This court believes that individuals such as Appel-
lant have a constitutional right to a jury trial. Further, any
statute which denies this right is unconstitutional.
GOOD CAUSE Appearing,
IT IS HEREBY ORDERED, ADJUDGED AND
DECREED that individuals charged with violations of
NRS 484.379 as amended in 1983 are constitutionally
entitled to a jury trial.
IT IS FURTHER OR VERED, ADJUDGED AND
DECREED that in so far as NRS 266.550 prevents or
denies jury trials for D.U.I. misdemeanor cases, it is
unconstitutional.
IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that the above entitled case is remanded to the
North Las Vegas Municipal Court for a jury trial on the
D.U.I. charge.
DATED this 12th day of February, 1987.
Myron E Leavitt
DISTRICT JUDGE
for Addeliar D. Guy
Submitted by:
/s/ John G. Watkins
JOHN G. WATKINS, ESQ.
Attorney for Appellant
333 N. Rancho Dr, #633
Las Vegas, Nevada 89106
28
CASE NO:
IN THE SUPREME COURT OF THE STATE OF NEVADA
CITY OF NORTH LAS VEGAS, NEVADA,
Petitioner,
vs.
ADDELIAR D. GUY, DISTRICT JUDGE,
EIGHTH JUDICIAL DISTRICT COURT
OF THE STATE OF NEVADA,
Respondent.
i ee ee eo oo
PETITION FOR WRIT OF CERTIORARI
(Filed April 13, 1987)
TO: THE HONORABLE JUSTICES OF THE SUPREME
COURT OF THE STATE OF NEVADA
STATE OF NEVADA )
) $s.
COUNTY OF CLARK )
MARK L. ZALAORAS, being first duly sworn,
deposes and says:
1. That he is an attorney duly licensed to practice law
in the State of Nevada and is a Deputy City Attorney for
the City of North Las Vegas, Nevada.
2. That he is the prosecuting attorney assigned by the
City Attorney for the City of North Las Vegas to pros-
ecute the Eighth Judicial District Court case number
C76512,which is a misdemeanor appeal before such Court
from the conviction of Mark D. Fraley for Driving Under
29
the Influence of Intoxicating Liquor entered on October
23, 1986 by the Homorable Gary Davis, Judge of the
Municipal Court for the City of North Las Vegas, Nevada,
3. That he has personal knowledge of the events
described herein based upon his position as prosecutor
for the original Municipal Court case as well as for the
appeal of the misdemeanor conviction.
4. That his Petition by affidavit is brought as an
application for a writ of certiorari pursuant to NRS 34.010
through NRS 34.140; that jurisdiction for issuance of such
a writ is based upon NRS 34.020(2) and (3) because
Respondent exceeded the jurisdiction of his office during
the exercise of judicial functions by entering an order
remanding the appeal to the North Las Vegas Municipal
Court without holding a trial de novo on appeal, and by
ruling that NRS 266.550 is unconstitutional as it denies
jury trials to persons charged with misdemeanor DUI
offenses. That there is no appeal from such order, nor
does Petitioner have any plain, speedy or adequate
remedy.
5. That Petitioner seeks review of the Decision and
Order entered on or about February 13, 1987 by the
Honorable Addeliar D. Guy in case number C76512 in the
Eighth Judicial District Court of the State of Nevada, a
copy of which is attached hereto as Exhibit “A”.
6. That good cause exists for review by this Court of
such order in that District Judge Guy granted a pretrial
motion by Appellant Mark Fraley which challenged the
Municipal Court conviction for failure to provide a jury
trial and remanded the case for a trial by jury; that such
action by Respondent exceeded his jurisdiction by not
30
conducting a new trial on the appeal as required for
appeals to district from municipal courts; that the order
by Respondent declared NRS 266.550 to be unconstitu-
tional as it denies jury trials to persons charged with
misdemeanor DUI offenses, whereas this Court in State v.
Smith, 99 Nev. 806 (1983) held that such persons are hot
entitled to trial by jury, and therefore the Respondent
further exceeded his jurisdiction by such order.
WHEREFORE, Affiant prays that a writ of certiorari
or other appropriate writ may be issued out of this Court
to the Judge of the Eighth Judicial District Court, Depart-
ment No. XI, the Honorable Addeliar D. Guy, command-
ing him to certify and return to this Court copies of all
motions, pleadings, findings, orders, rulings, judgments,
minute orders, and records on file, and Affiant further
seeks a stay of proceedings in both the Municipal Court
for the City of North Las Vegas and the Eighth Judicial
District Court of the State of Nevada pending final deter-
mination of this application, and ultimately for an order
from this Court commanding Respondent to make a
determination of the misdemeanor appeal filed by Appel-
lant Mark Fraley based upon a trial de novo before that
Court, and for such other and further relief as may be
proper in the premises.
ROY A. WOOFTER, CITY ATTORNEY
CITY OF NORTH LAS VEGAS
By /s/ MARK L. ZALAORAS
ARK L. ZALAORAS
Deputy City Attorney
Attorney for Petitioner
SUBSCRIBED and SWORN to before me
this 8th day of April, 1987.
/s/ Sarah Lee Johnson
Notary Public
31
STATEMENT OF THE ISSUES
I. Whether Respondent exceeded his jurisdictional
authority by reversing the conviction obtained in Munici-
pal Court and remanding the case to that Court for a new
trial by jury instead of deciding the misdemeanor appeal
on a trial de novo?
Il. Whether Respondent exceeded his authority by
ruling that NRS 266.550 is unconstitutional as it denies
persons charged with misdemeanor DUI offenses a jury
trial?
A. Whether the ruling in State v. Smith, 99 Nev.
806 (1983) is controlling authority on the jury trial issue
in view of the legislative amendments to NRS 484.379
since the Smith decision in 1983?
B. Whether a federal constitutional right to trial
by jury for misdemeanor DUI offenses should be recog-
nized by this Court in light of the Federal District Court
ruling by the Honorable Edward C. Reed in Bronson v.
Swinney?
REASONS WHY WRIT SHOULD ISSUE
Petitioner is w:thout any plain, speedy and adequate
remedy other than certiorari to rectify the action by
Respondent in remanding the case to Municipal Court
and ruling NRS 266.550 unconstitutional. Specifically,
NRS 34.020(3) mandates that the writ of certiorari be
granted by the Supreme Court upon application of a
municipality where a district court has passed upon the
constitutionality or validity of a statute or municipal
ordinance in a case prosecuted for the violation of such
statute or ordinance.
32
In addition, NRS 34.020(2) requires the writ to be
granted in all cases where an inferior tribunal during the
exercise of judicial functions exceeds its jurisdiction and
there is no appeal, nor any plain, speedy and adequate
remedy. In this case the City of North Las Vegas is
prohibited from taking a direct appeal to this Court by
the terms of Article 6, Section 6 of the Nevada Constitu-
tion, which declares that district courts shall have final
appellate jurisdiction in cases arising in inferior tribunals.
Therefore, a writ of certiorari is the proper device by
which Petitioner may have its grievance with Respondent
remedied.
There is a split of authority among the various
Departments of the Eighth Judicial District Court con-
cerning the jury trial issue for misdemeanor DUI prosecu-
tions. At least three other Departments, numbers VI, VII
and VIII, have ruled opposite from Respondent on this
issue and denied a jury trial request on appeal. A writ
must issue from this Court so that it can hear and deter-
mine the legal issue in order for the conflict among the
Departments of the Eighth Judicial District Court to be
resolved. Moreover, there are currently pending several
other cases before this Court regarding the same issue. To
the extent it may be practical, Petitioner asks that its case
be consolidated with those other matters.
33
POINTS AND AUTHORITIES
IN SUPPORT OF
PETITION FOR WRIT OF CERTIORARI
I.
RESPONDENT EXCEEDED HIS JURISDICTIONAL
AUTHORITY BY REVERSING THE MISDEMEANOR
CONVICTION AND REMANDING THE CASE TO
MUNICIPAL COURT FOR A JURY TRIAL
Upon conviction in a municipal court of this state, a
defendant has the right to appeal to the district court.
NRS 266.595, NRS 5.080 and NRS 189.010. Such appeal
takes the form of a trial de novo. NRS 266.565. But see
NRS 266.005 which renders Chapter 266 inapplicable to
charter cities. This trial on the appeal is before the bench
and without a jury. State v. Smith, 99 Nev.806 (1983). See
also Hudson v. City of Las Vegas, 81 Nev. 677 (1965), City of
Las Vegas v. O'Donnell, 100 Nev. 491 (1984) and NRS
266.550.
Once an appeal is taken from a misdemeanor convic-
tion, there is no provision in statutory or case !aw for the
district court hearing the appeal to reverse the judgment
of the municipal court and remand the case for a new
trial. Respondent herein acted without authority in so
doing and thereby exceeded his jurisdiction. The proper
procedure would have been for Respondent to enter his
judgment based upon a trial de novo.
In City of Las Vegas v. O'Donnell, 100 Nev. 491 (1984),
the district court remanded the misdemeanor appeal to
the municipal court for a new trial and was held to have
exceeded its jurisdiction by so doing. The City of Las
Vegas petitioned the Nevada Supreme Court for a writ of
certiorari, challenging the action of the district court.
34
“In the present petition, the City of Las Vegas
seeks a determination by this court that the district
court exceeded its jurisdiction in remanding the case
to the municipal court rather than holding a trial de
novo itself. The City also contends that the district
court erred in determining that the evidence of intox-
ilyzer tests should be suppressed at trial. We agree
with the City with respect to both contentions.
First, the district court was clearly without juris-
diction to remand the case to the municipal court for
a trial de novo. The district court was instead
required to hold a trial de novo to determine for itself
the question of Furniss’ guilt or innocence. See NRS
266.565, supra, note 1. Upon remand, the district court
shall conduct such a trial.” (Emphasis added). Id., at
page 493.
Hence, Respondent had no jurisdiction to vacate the
lower court judgment. Unlike a typical appellate court
process, the district court does not sit in a reviewing
court posture, determining whether any error of law was
committed by the lower court. Rather, the district court
on a misdemeanor appeal from a municipal court must
conduct a trial de novo. This Court must reverse the
order of remand by Respondent and direct that a trial de
novo be conducted at the district court level on appeal.
Il.
RESPONDENT EXCEEDED HIS AUTHORITY BY
RULING THAT NRS 266.550 UNCONSTITU-
TIONALLY DENIES A RIGHT TO TRIAL BY JURY
TO PERSONS ACCUSED OF MISDEMEANOR DUI
OFFENSES
Respondent entered a two-step ruling which declared
that: (1) there is a federal constitutional right to trial by
jury for a misdemeanor DUI charge under NRS 484.379
35
based upon the recent federal district court decision in
Bronson v. Swinney, CV-R-86130 ECR (October 1, 1986)
from the District of Nevada, opinion by the Honorable
Edward C. Reed; and (2) that a statute providing other-
wise is unconstitutional. See Exhibit “A” attached hereto,
page 2 of the Decision and Order, lines 4-21. Petitioner
submits that Respondent was in error in distinguishing
the opinion of this Court in State v. Smith, 99 Nev. 806
(1983), which holds to the contrary.
A. The ruling in State v. Smith, supra, is controlling
authority on the jury trial issue, even in light of the
legislative amendments to NRS 484.379 since 1983.
Respondent is required to follow the pronouncement
of this Court in State v. Smith, supra, which is controlling
authority upon Respondent on the DUI jury trial issue.
The accused, Mark Fraley, is not entitled to a jury trial for
a misdemeanor DUI offense where the maximum autho-
rized penalty is six (6) months in jail or less. In Smith,
supra, this Court stated:
“Persons are guaranteed the right to a jury trial
by both art I, section 3 of the Nevada Constitution,
and the sixth amendment to the United States Consti-
tution. Despite ys eege significant differences in
the language of these constitutional provisions, both
provisions have been interpreted to guarantee the
right to a jury trial in a criminal matter only as it
existed at common law. Thus, there is no constitu-
tional right to trial by jury for “petty” offenses. See
Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444
(1968); State v. Ruthe, 24 Nev. 251, 52 P. 274 (1898).
Whether there is a constitutional right to a trial by
jury therefor turns upon whether the offense charged
is characterized as “serious” or “petty.” See Duncan
36
v. Louisiana, 391 U.S. at 159. In turn, the principal
criterion used in characterizing an offense as “petty”
or “serious” is the severity of the maximum autho-
rized penalty. See Baldwin v. New York, 399 U.S. 66,
S.Ct. 1996 (1969); Bloom v. Illinois, 391 U.S. 194, 211,
88 S.Ct. 1477 (1968).
In recent decisions, the United States Supreme
Court has increasingly relied upon the objective crite-
rion of the maximum possible penalty in deciding
whether to characterize an offense as “petty” or
“serious”. See Taylor v. Hayes, 418 U.S. 488, 94 S.Ct.
2697 (1974); Codispoti v. Pennsylvania, 418 U.S. 506,
94 S. Ct. 2687. Using this criterion, the Court has held
that 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. See
Codispoti v. Pennsylvania, 418 U.S. at 512.
At the time of the alleged offense, the maximum
punishment for a first-time DUI conviction in Nev-
ada under NRS 484.379 was six months imprison-
ment or a fine of up to $1,000.00. As the potential
maximum term of imprisonment is six months, it
would appear that respondent Smith’s offense was
“petty” within the Supreme Court's definition, and
that there is thus no constitutional right to trial by
jury in his DUI prosecution.
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. The district court thus erred in
granting the writ of mandamus to compel the jus-
tice’s court to grant respondent a jury trial in his
pending DUI prosecution.” Id. at page 809-810.
37
The amendments to NRS 484.379 made in 1983 and
1985 did not change the maximum authorized penalty for
a misdemeanor DUI conviction. Those amendments did
change the minimum penalty. The 1983 Legislature
changed the minimum penalty from a fine of $100 and
mandatory counseling tu a $200 fine, mandatory counsel-
ing and either 2 days in jail or 48 hours of community
service for a first offense, and the person must wear
distinctive garb to identify himself as a DUI offender if
performing the latter. NRS 484.3792. The maximum pen-
alty for either a first or second DUI remains at six months
in jail and/or a $1,000 fine. NRS 484.3792. The 1983
Legislature also amended the driver’s license revocation
law by mandating a ninety day revocation for a first
offense DUI conviction and one year for a second offense.
NRS 483.460
The 1985 Legislature did not change any of the pen-
alty provisions for a misdemeanor DUI. It did increase
the maximum authorized penalty for a felony DUI from
six years to twenty years. NRS 484.3795.
It is clear from the above analysis that the holding in
State v. Smith, supra, remains viable even in light of the
amendments to the DUI law since the time of that deci-
sion. Therefore, Respondent exceeded his authority in
distinguishing that ruling as there is no right to a jury
trial for a misdemeanor DUI.
B. There is no federal constitutional right to trial by
jury for misdemeanor DUI offenses.
1. Decisions of federal courts are not automat-
ically binding upon state courts.
The powers of the federal judiciary are specified in
the Constitution of the United States and the statutes
38
enacted by the Congress of the United States. Article III,
Section 1 of the Constitution states that:
The judicial Power of the United States, shall be
vested in one supreme Court, and in such inferior
Courts as the Congress may from time to time ordain
and establish.
Section 2 of Article II further illuminates the issue by
noting that:
The judicial Power shall extend to all Cases, in Law
and Equity, arising under this Constitution, the Laws
of the United States, and Treaties made, or which
shall be made, under their Authority; . . .
It is clear from the above language that inferior fed-
eral courts were intended to have judicial power only
over specific cases and controversies involving federal
issues. They are not authorized to decide abstract matters
or to bind state courts except to the extent that a particu-
lar case or controversy arises from a state court. The
United States Code has not given any additional powers
to the federal courts, and maintains this case or contro-
versy limitation.
28 USC § 1331 - © he district courts shall have original
jurisdiction of all civil actions arising under the Con-
stitution, laws or treaties of the United States.
28 USC § 3231 - The district courts of the United
States shall have original jurisdiction, exclusive of
the States, of all offenses against the laws of the
United States.
Obviously the federal courts are limited in their juris-
diction to specific actions. This same limitation applies to
the highest court in the land, the Supreme Court. In one
of the earliest decisions of the Supreme Court, Article III
of the Constitution was interpreted to preclude any court
39
in the United States federal system from acting in an
advisory capacity or rendering decisions on general
issues, rather than on a case by case basis involving
actual controversies. Marbury v. Madison, 5 U.S. 137, 1
Cranch 137 (1803). However, because the Supreme Court
is the ultimate authority on federal questions and issues,
its decisions, while not binding except in a particular
case, are considered to be the most definitive statement of
the law which was at issue in that case and therefore
upon that specific federal question. (Most states also have
provisions of their state constitutions or statutes which
acknowledge the United States Supreme Court as the
controlling authority in the interpretation of federal
issues, see Article 1, Sec. 2. of the Nevada Constitution.)
While the reiteration of the above provisions of the
Federal Constitution and Statutes may seem to be super-
fluous, it is important that they be recognized since they
are the building blocks for the case law involving the
authority of a federal court to bind a state court. Too
often it is assumed that a federal court is directly supe-
rior to a state court, when in reality, the two systems are
distinct and separate from each other; the federal system
acts only as a method of checks and balances against
improper activity by state courts. The dichotomy between
the federal and state judicial systems is well recognized
in the State of Nevada. In Bargas v. Warden, 87 Nev 30, 482
P.2d 317 (1971), the Supreme Court of the State of Nevaua
noted that:
We are bound by the decisions of the United States
Supreme Court (Nevada Constitution, Article 1, Sec.
2.). We are not bound by the decisions of the other
federal courts, Bargas at 32.
40
Nevada is not alone in its view regarding the force
and effect of federal decisions. In People v. Luros, 480 P.2d
633, 92 Cal. Rptr. 833 (1971), the Supreme Court of Cali-
fornia in an en banc decision, rejected the interpretations
of several federal courts noting that the federal courts
were not “compelling authority” and citing to the Califor-
nia case most known for outlinging the division between
federal and state courts, In Re Whitehorn, 1 Cal. 3rd 504,
462 P.2d 361 (1969).
Similarly, the Supreme Court of Idaho, in State v.
Harmon, 685 P.2d 814 (1984) indicated that while it might
give deference to federal district court opinions, it was in
no way bound by them. Citing to the premiere federal
case in this area, United States ex. rel. Lawrence v. Woods,
432 F.2d 1072 (7th Cir. Ill.) cert. den. 402 U.S. 983 (1970),
the Idaho Court noted that federal district court rulings
do not bind state courts in unrelated cases.
Finally, in one of the most succinct statements of the
law in this area, the Court of Criminal Appeals of Okla-
homa, in Dean v. Crisp, 536 P.2d 961 (1975), stated that:
... The federal courts have no jurisdiction except in
those areas which are concerned with interpretation
of the United States Constitution. The inferior federal
courts exercise no appellate jurisdiction over state
tribunals. Therefore, decisions from these federal
courts are not conclusive on state courts. . . .The
decisions of the Federal Circuit Court of Appeals in
Lamb, supra, and Radcliff, supra, do not establish
binding precedent on this Court until the issue is
answered by the United States Supreme Court. The
inferior federal courts exercise their power only on a
case-to-case basis and can extend their power no
further. Dean at 963.
41
Of course the Court in Dean also noted that federal
case law is often persuasive and the Nevada Supreme
Court has also so indicated in Rahn v. Warden, 498 P.2d
1344 (1972), where the Nevada High Court acquiesced in
the decisions of the Ninth Circuit Court of Appeals.
In Bronson v. Swinney, supra, the authority relied
upon by Appellant below, Mark Fraley, to support his
argument for a jury trial, the Federal Court had before it
a Writ of Habeas Corpus arising out of a conviction for
DUI originating in the Justice’s Court for Reno. The
granting of the Writ and the Court’s Order for a jury trial
on remand are only binding upon the original Justice’s
Court, and only in that particular case. The federal order
is not binding upon a municipal or district court in the
instant situation. A court’s holding is always limited to
those issues which are necessary to decide the case. All
other commentary is dictum and not precedent. Since
Judge Reed’s minor reference to municipal courts was not
necessary to a resolution of the case, it would not be
binding.
Given the above case law, it is clear that neither the
North Las Vegas Municipal Court nor the District Court
are bound by the Bronson decision. Moreover, the State of
Nevada has not chosen to acquiesce to federal court
rulings in this area and the Respondent should not have
voluntarily taken notice of the Bronson ruling and granted
Appellant’s Motion.
2. First and second offense DUI violations are
“petty offenses” under federal constitutional
law and defendants are not entitled to trials
by jury.
A review of the United States Constitution and
Supreme Court case decisions is necessary for a complete
42
understanding of the issues involved with the DUI jury
trial question. Article III, Section 2, paragraph 3 of the
United States Constitution states that:
“The Trial of all Crimes, except in Cases of Impeach-
ment, shall be by Jury; .. .
This language was later supplemented by the Sixth
Amendment which provides that:
“In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial
jury. . .”
On its face, the Constitution would seem to impose
the right of trial by jury in all federal criminal cases,
bearing in mind that Article III deals only with the fed-
eral government and federal crimes. Despite this lan-
guage, however, the Supreme Court of the United States,
as the ultimate authority on the meaning of the Constitu-
tion, decided as early as 1888, in Callan v. Wilson, 127 U.S.
540, 8 S.Ct. 1301, that the language in the Constitution
must be viewed in light of the times in which it was
written. Thus the Supreme Court has consistently held
that the right to a jury trial was never intended to apply
to those crimes which were considered to be “petty
offenses” at common law. The Court has on numerous
occasions reiterated this distinction between “petty” and
“serious” offenses and has extended the concept to statu-
tory crimes. Cheff v. Schackenberg, 384 U.S. 373, 86 S.Ct.
1523 (1966); District of Columbia v. Clawans, 300 U.S. 617,
57 S.Ct. 660 (1937); Schick v. United States, 195 U.S. 65, 24
S.Ct. 826 (1904), Natal v. Louisiana, 139 U.S. 621, 11 S.Ct.
636 (1891).
o
43
In the landmark case of Duncan v. Louisiana, 391 U.S.
145, 88 S.Ct. 1444 (1968), when the Supreme Court held
that by virtue of the Fourteenth Amendment, the Sixth
Amendment right to trial by jury also applied to state
criminal proceedings, the High Court again restated its
position with regard to the limitations between “serious”
and “petty” offenses.
. . « It is doubtless true that there is a category of
petty crimes or offenses which is not subject to the
Amendment jury trial provision and should not
be subject to the Fourteenth Amendment jury trial
t here applied to the States .. . the penalty
authorized for a particular crime is of major rele-
vance in determining whether it is serious or not-
... The penalty authorized by the law of the locality
may be taken “as a gauge of its social and ethical
judgments,” . . . of the crime in question.
. .. So-called petty offenses were tried without juries
both in England and in the Colonies and have always
been exempt from the otherwise comprehensive lan-
guage of the Sixth Amendment's jury trial provi-
sions. There is no substantial evidence that the
Framers intended to depart from this established
commonlaw practice, and the possible consequences
to defendants from convictions for petty offenses
have been thought insufficient to outweigh the bene-
fits to efficient law enforcement and simplified judi-
cial administration resulting from the availability of
speedy and inexpensive nonjury adjudications. . . .In
the absence of an explicit constitutional provision,
the definitional task necessarily falls on the courts,
which must either pass on the validity of the legisla-
tive attempts to identify those petty offenses which
are exempt from jury trial, or where the legislature
has not addressed itself to the problem, themselves
face the questions in the first instance .. .
44
In determining whether the length of the authorized
prison term or the seriousness of other punishment is
enough in itself to require a jury trial, we are coun-
seled by District of Columbia v. Clawans, supra, to refer
to objective criteria, chiefly the existing laws and
practices in the Nation.
The Duncan Court then went on to note that both at
common law and in federal statutes, the dividing line
between “petty” and “serious” offenses was a maximum
jail sentence of six months. The Court also indicated, in
Footnote 35, that with the exception of criminal contempt
offenses, the relevant penalty to be considered was the
possible maximum sentence which could be imposed not
the actual sentence levied against the defendant.
Subsequent to Duncan, the Supreme Court has writ-
ten several decisions which clarify the manner in which a
crime is to be classified as “petty” or “serious” and
stresses that the amount of jail time which could be
imposed is to be considered the most important, almost
exclusive, factor in making such a determination. The
first of these cases is Frank v. United States, 395 U.S. 147,
89 S.Ct. 1503 (1969). Frank dealt with a criminal contempt
charge arising out of the violation of an administrative
ruling. The Court succinctly reviewed the steps a court
should take in deciding whether or not a jury trial is
warranted.
“In determining whether a particular offense can be
classified as ‘petty,’ this Court has sought objective
indications of the seriousness with which society
regards the offense. . . .The most relevant indication
of the seriousness of an offense is the severity of the
penalty authorized for its commission.
In ordinary criminal prosecutions, the severity of the
penalty authorized, not the penalty actually imposed,
45
is the relevant criterion. In such cases, the legislature
has included within the definition of the crime itself
a judgment about the seriousness of the offense.”
Frank also held that collateral consequences of a convic-
tion, if contemplated within the definition of “petty” by
the legislature, would not remove an offense from the
“petty” category. Thus the Court in Frank rejected the
claim that a three year sentence of probation made an
otherwise “petty” offense a “serious” one for purposes of
a jury trial and noted that:
“Probation is, of course, a significant infringement of
personal freedom, but it is certainly less onerous a
restraint than jail itself.”
The next major federal case dealing with jury trials is
Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886 (1970). In
Baldwin, the defendant was charged with a crime which
was punishable by up to one year imprisonment and
which by statute could not be tried by jury. It was in
Baldwin that the Supreme Court ‘established the outer
limit for the dividing line between “petty” and “serious”
crimes. Any offense which carried a penalty in excess of
six months in jail would be “serious”, those whose maxi-
mum jail time did not exceed six morths would be
“petty”. The Court made no mention of other factors,
such as the amount of the fine, except to briefly refer to
the $500.00 fine limit contained in the federal definition
of “petty” under 18 USC § 1. The majority of the opinion
centers around the issue of imprisonment and the need
for objective criteria to make a determination.
“... This near-uniform judgment of the Nation [that
any jail time over six months removes a crime from
the ‘petty’ offense category] furnishes us with the
only objective criterion by which a line could ever be
46
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.
Of necessity, the task of drawing a line ‘requires
attaching different consequences to events which,
when they lie near the line, actually differ very little.’
Duncan, supra, at 161, 20 L.Ed. 2d at 502. One who is
threatened with the possibility of imprisonment for
six months may find little difference between the
potential consequences that face him, and the conse-
quences that faced the appellant here. Indeed, the
prospect of imprisonment for however short a time
will seldom be viewed by the >ccused as a trivial or
‘petty’ matter and may well result in quite serious
re ions affecting his career and his reputation.
Where the accused cannot possibly face more than
six months’s imprisonment, we have held that these
disadvantages, onerous as they may be, may be out-
weighed by the benefits that result from speedy and
inexpensive non-jury adjudications.”
Baldwin clearly sets forth the type of “balancing” test the
Supreme Court recommends in all cases involving the
jury trial issue. However, lower courts and numerous
attorneys have taken Baldwin out of context. For example,
the national standards language of Baldwin has been
referred to by Judge Reed in Bronson and by the Ninth
Circuit in some opinions as supporting grounds for the
granting of jury trials in DUI cases. United States v.
Craner, 652 F.2d 461 (9th Cir. 1976). The reasoning stated
is that since the majority of states do grant a defendant a
jury trial for DUI offenses, then this is a reflection by the
“nation” that the offense is a serious one. While many
states do allow for jury trials in DUI cases, they also
allow jury trials in most misdemeanor cases, that is most
cases where the penalty does not exceed six months’ in
jail. Those states which still punish DUI by penalties
47
which do not exceed the six month standard still consider
the offense as “petty.” These states have not redefined
“petty”, instead they have simply determined that jury
trials should be granted in all crimes, petty or not, either
because their state constitutions require jury trials in all
criminal matters and are broader in scope than the fed-
eral constitution, or because state legislatures have
enacted statutes providing for jury trials in petty offense
cases. Nationally, the standard for defining a “petty”
offense still turns primarily around the maximum possi-
ble jail sentence and the six month rule. Codispoti Pennsyl-
vania, 418 U.S. 506, 94 S.Ct. 2687 (1974); Taylor v. Hayes,
418 U.S. 488, 94 S.Ct. 2687 (1974).
For some years after Duncan, the Supreme Court did
not rule on the relationship of fines to “petty” offense.
This changed with the rendering of the decision of the
Court in Muniz v. Hoffman, 422 U.S. 454, 95 S.Ct. 2178
(1975). The Court in Muniz noted that while the six
month guideline had been taken in part from the statu-
tory definition of a “petty offense” contained in 18 USC
§ 1(3) ($500.00 fine and/or six months imprisonment) this
did not mean that any fine which exceeded $500.00
would automatically cast the offense into the serious
category. Muniz involved a $10,000.00 fine which was
imposed against a labor union in a contempt type pro-
ceeding. The High Court did not set any outside fine
standard for jury puposes in Muniz, but it did indicate
that fines are, to some extent, at the bottom of the consid-
erations which are to be weighed.
“It is one thing to hold that deprivation of an indi-
vidual’s liberty beyond a six-month term should not
be imposed without the protections of a jury trial, but
48
it is quite another to suggest that, regardless of the
circumstances a jury is required where any fine
greater than $500 is contemplated. From the stand-
point of determining, the seriousness of the risk and
the extent of the possible deprivation faced by a
contemnor, imprisonment and fines are intrinsicaily
different.” (Emphasis added). Muniz at 477.
Based upon a reading of the Supreme Court cases
cited above, the Petitioner submits that no federal
grounds existed for Respondent to grant the Motion to
Dismiss for lack of a jury trial. The fact that Nevada’s
statute requires mandatory, as opposed to discretionary,
imposition of imprisonment is irrelevant, since the
Supreme Court stated in Duncan, supra, that it is the
potential, not the actual jail sentence which is important.
The fact that the DUI statute contains provisions such as
mandatory counseling and that a DUI conviction will
result in collateral consequences (such as the loss of a
driver’s license or enhanced punishment on a second
offense) is insufficient to mandate a jury trial. Frank,
supra, contained an obvious statement of the High Court
that regulatory provisions of sentencing, such as proba-
tion, do not take an offense out of the “petty” category if
it is otherwise treated as a “petty” offense, that is, pun-
ishable by no more than six months in jail. As noted in
Baldwin, supra, the fact that the conviction could result in
serious consequences and repercussions does not control
whether the crime is classified as “petty” or “serious.”
Finally, the mere fact that Nevada has chosen to impose a
$1,000 fine, instead of a $500 fine, does not automatically
remove the offense from the “petty” category, especially
given the rulings of the Nevada Supreme Court in tiis
area, specifically in State v. Smith, suyra.
49
Considering the above analysis, it is difficult to agree
with the reasoning of Judge Reed in Bronson. With all due
respect to Judge Reed, the Petitioner submits that his
opinion in Bronson presents an incomplete statement of
the case law in this area and the rationale and policies set
forth by the United States Supreme Court.
Judge Reed relied heavily upon two Ninth Circuit
cases dealing with jury trial issues. United States v. Craner,
652 F.2d 461 (9th Cir. 1976) and United States v. Sanchez-
Meza, 547 F.2d 461 (1976). The Petitioner’s reading of both
of these cases is that they represent attempts by the Ninth
Circuit to expand the concept and scope of jury trials way
beyond that established by the United States Supreme
Court. The Petitioner does not agree with the reasoning
of the Ninth Circuit in either case and argues that while
the Ninth Circuit (absent an overriding ruling from the
Supreme Court) can create a greater scope of jury trials in
the federal courts under its appellate jurisdiction, its
rulings are not binding upon the State of Nevada and are
in direct contradiction with the case law established by
the Supreme Court, which is binding upon Nevada.
Moreover, both Craner and Sanchez-Meza concerned fed-
eral offenses taking piace on federal land. Thus, inter-
pretation of federal statutory law was involved, not state
law.
Not every federal court agrees with Craner. In United
States v. Fletcher, 505 F.Supp. 1053 (1981), the United
States District Court for the Western District of Virginia
not only summarily denied a request for a jury trial
involving a DUI committed in a federal park, but also
rejected the Craner and Woods concept of looking beyond
50
the authorized penalties. Indeed, the Fletcher Court spe-
cifically held that:
_. , the revocation of the right to operate a vehicle
upon the highways, . . . is not a part of the punish-
ment provided by law to be fixed by a court or jury
upon conviction of a crime. The revoca-
tion . . . follows as a consequence and effect of
conviction for crime. Fletcher at 1054.
Another federal court has rejected the concept that
courts should consider the treatment of the offense at
common law or whether the offense is malum in se, again
in direct conflict with Craner, Woods and Sanchez-Meza.
The United States District Court for the District of Puerto
Rico, in Matoe v. Rodriquez, 440 F. Supp. 673 (1976), firmly
rejected the “nature of the offense” method of classifying
crimes for purposes of jury trials. The Court gave great
weight to the Supreme Court decision in Frank, supra, and
stated that:
_. . 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.
it concluded that of the objective indicators, the most
important is the severity of the sentence. In cases
whére the maximum penalty has been provided for
in a statutory manner, the legislature has been said to
include within the penalty imposed a statement about the
seriousness of the offense... .
_. . It is thus clear that the doctrine of District of
Columbia v. Colts, supra, wherein the primary impor-
tance was given to the nature of the offense, is no
longer applicable. Matos at 676, 677.
Even the Ninth Circuit has had occasion to backtrack
with regard to its decision in Craner. In United Séates v.
51
Arbo, 691 F.2d 862 (1982), the Ninth Circuit referred to its
policy in Craner. In Arbo, the defendant was charged with
a violation of both federal statute and a federal regula-
tion. The Court noted that its decision in Craner was
based on “extraordinary circumstances”, that is the lack
of legislative judgment because the offense arose from a
federal regulation. But in Arbo, the Court said no extraor-
dinary circumstances existed since the defendant was
charged under a federal statute, which did show legisla-
tive judgment that the crime should be a petty offense
and triable without a jury.
In addition to the Arbo decision, the Ninth Circuit
has, in one other opinion, apparently recanted, at least in
part, the doctrine in Craner. In United States v. Jenkins, 734
F.2d 1322 (1983), the Court found that the imposition of a
two year probation period under the Youth Corrections
Act did not create extraordinary circumstances warrant-
ing a jury trial; that this collateral consequence did not
remove the offense from the petty category because it
was punishable by not more than six months in jail.
(Jenkins involved a simple assault.)
Given the detailed review of the case law contained
in this Brief of the decisions of the United States Supreme
Court, together with an in depth reading of the decisions
of the Ninth Circuit, which are often ambiguous at best, it
is evident that DUI offenders in the State of Nevada, and,
more specifically, those charged in the Municipal Court of
North Las Vegas, do not have a constitutional right to a
trial by jury.
For the reasons heretofore stated, the Petitioner
requests that the Court reverse the decision and order of
52 53
Respondent and remand the case to the Eighth Judicial IN THE SUPREME COURT OF THE STATE OF NEVADA
District Court for a trial de novo without a jury. MELVIN R. BLANTON, ) No. 17940
Respectfully submitted, Appellant, ‘
ROY A. WOOFTER, vs.
CITY ATTORNEY THE NORTH LAS VEGAS )
CITY OF NORTH MUNICIPAL COURT, NORTH LAS ?
LAS VEGAS VEGAS, NEVADA AND THE ‘
ie HONORABLE GARY DAVIS,
By: /s/ Mark L. Zalaoras MUNICIPAL JUDGE THEREOF,
Mark L. ZALAORAS R nd )
Deputy City Attorney espondents. )
1301 East Lake Mead CITY OF NORTH LAS VEGAS, )
North Las Vegas, NV 89030 NEVADA, )
Real Party in )
Interest. )
APPELLANT’S OPENING BRIEF
(Filed June 22, 1987)
JOHN J. GRAVES, JR., ESQ. MARK L. ZALAORAS, ESQ.
GRAVES, LEAVITT & KOCH Deputy City Attorney
601 South Sixth Street 1301 East Lake Mead Blvd.
Las Vegas, Nevada 89101 North Las Vegas, NV 89030
(702) 385-7277
Attorney General’s Office
State Mailroom Complex
Las Vegas, Nevada 89158
Counsel for Appellant Counsel for Respondents
Ill
IV
54
TABLE OF CONTENTS
INDEX OF CASES CITED ............-..--45.
STATEMENT OF THE CASE AND RELEVANT
Ps accccUineucceduceausivdcineckhobernase
A.
A Jury Trial in a DUI Prosecution is Required
Upon Demand in Municipal Court Pursuant to
the United States and Nevada Constitutions ..
The Federal District Court for the District of
Nevada Has Ruled That As A Matter of Federal
Constitutional Law, A Defendant Charged With
Driving Under the Influence of Intoxicating
Liquor Has The Right To A Jury Trial........
c.
The United States Court of Appeals for the
Ninth Circuit Has Ruled In a State Case That a
Potential Fine of $1,000.00 Triggers The Right To
By FO TEE o oc cccccccccccccccccccccccesccese
ee ef + | PPPPOTITICTITI TIT T irre
CERTIFICATE OF SERVICE BY MAIL.........
55
INCEX OF CASES CITED
Unitep STATES CONSTITUTION
ee ce eeee (Cedeosoosooeneees
NevaDA CONSTITUTION
IE Th. cc cccnvsdevesndcccococcsccseeses
I NS occa ccndévotccccccccccsceeseaceese
NevaDa ReviseD STATUTE
CASES
DE, dk dip babe bnewees cencnoestsseanes cece
Bronson v. Swinney, United States District Court;
District of Nevada CV-R-86-130-ECR, Filed
PPP rrr ie
Duncan v. Louisana, 391 U.S. 145, 88 S.Ct. 1444, 20
re on ds spb heedbeessesces
Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33
L.BG26 BEG (ISTE)... cc ccccccccccccccccscess
Crees v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49
L.Ed.2d 859 (1976). ......2-cccccccececcescees
Rife v. Godbehere, 814 F.2d 563 (CA9 1987)....
United States v. Craner, 652 F.2d 23 (CA9 1981)
United States v. Hamdan, 552 F.2d 276 (CA9 1977)
“eevee
56 |
I
STATEMENT OF THE CASE AND RELEVANT FACTS
On or about July 18, 1986, Defendant / Appellant
MELVIN BLANTON was arrested by an officer of the
North Las Vegas Police Department for driving under the
influence of intoxicating liquor (N.R.S. 484.379), and so
charged in a “first offense” criminal complaint on or
about July 18, 1986.
On or about October 3, 1986, Defendant, by and
through counsel, filed a Demand for Jury Trial, which
Demand was orally denied by the Honorable Gary Davis,
Judge of the Municipal Court, North Las Vegas, Nevada.
A Petition for Writ of Mandamus asserting Defen-
dant’s right te a jury trial in a first offense DUI prosecu-
tion was filed in the Eighth Judicial District Court on
November 3, 1986, the Honorable Michael Wendell. The
Petition was exclusively based upon federal! law and the
decision rendered by Federal District Judge Edward Reed
in Bronson v. Swinney,.on September 26, 1986, granting a
jury trial to Petitioner Bronson in that case. Judge Wen-
dell denied Defendant’s Petition for Writ of Mandamus in
a formal Order of January 14, 1987, from which Defen-
dant filed a Notice of Appeal to this Court on January 20,
1987.
II
ISSUE
Whether the United States or Nevada Constitutions
Require a Jury Trial, Upon Demand, for a Defendant
Charged With First Offense Driving Under the
Influence of Intoxicating Liquor, a Misdemeanor, in a
57
Municipal Court, Notwithstanding the Statutory
Mandate of N.R.S. 266.550 Requiring a Trial to
the Bench in All Misdemeanor Municipal Court Trials.
Ill
LEGAL MEMORANDUM
A.
A Jury Trial in a DUI Prosecution is Required Upon
Demand in Municipal Court Pursuant to the
United States and Nevada Constitutions
N.R.S. 266.550 states:
Powers and jurisdiction of court same as justice's
court; trial summary and without jury.
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 provi-
sions 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. (1907, p.265; RL 1912, Sec. 832; CL
1929, Sec. 1167.)
The Nevada Constitution, Article 1, Section 3, states:
Sec: 3. Trial by jury; waiver in civil cases.
The right of trial by Jury shall be secured to all
and remain inviolate forever; but a Jury trial may be
waived by the parties in all civil cases in ‘ive manner
to be prescribed by law; and in civil cases, if three
fourths of the Jurors agree upon a verdict it shall
stand and have the same force and effect as a verdict
by the whole Jury, Provided, the Legislature by a law
by a two thirds vote of all the members
elected to each branch thereof may require a unani-
mous verdict notwithstanding this Provision.
The Nevada Constitution, Article 1, Section 8 states:
58
Section 8. Rights of accused in criminal prosecutions;
jeopardy; due process of law; eminent domain.
No person shall be tried for a capital or other
infamous crime (except in cases of impeachment, and
in cases of the militia when in actual service and the
land and naval forces in time of war, or which this
state may keep, with the consent of congress, in time
of peace, av.d in cases of petit larceny, under the
regulation of the legislature) except on presentment
or indictment of the grand jury, or upon information
duly filed by a district attorney, or attorney general
of the state, and in any trial, in any court whatever,
the party accused shall be allowed to appear and
defend in person, and with counsel, as in civil
actions. No person shall be subject to be twice put in
jeopardy for the same offense; nor shall he be com-
lled, in any criminal case, to be a witness against
imself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private prop-
erty be taken for public use without just compensa-
tion having been first made, or secured, except in
cases of war, riot, fire, or great public peril, in which
case compensation shall be afterward made.
The Sixth Amendment to the United States Constitu-
tion states:
AMENDMENT VI
[Rights of Accused in Criminal Prosecutions]
Rights of accused in criminal prosecutions.
In all criminal prosecution, the accused shall enjoy
the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall
have been committed, which district shall have been
previously ascertained by law, and to be informed of
59
the nature and cause of the accusation; to be con-
fronted with the witnesses against him; to have com-
pulsory process for obtaining witnesses in his favor,
and to ve the Assistance of Counsel for his
defense.
The United States Supreme Court in Duncan v. Louisi-
ana, 391 US. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968),
held that “crimes carrying possible penalties up to six
months in custody do not require a jury trial if they
otherwise qualify as petty offenses.” Duncan, 88 S.Ct.
1453.
The Court further found at 88 S.Ct. 1453, that:
... the penalty authorized for a particular crime
has 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...
Duncan itself instructed that a national standard be
utilized to determine whether a jury trial is required
upon demand for certain offenses. 391 U.S. 161, 88 S.Ct.
1453. Exhibit “A” attached hereto shows that forty-seven
(47) States allow Jury Trials in DUI cases specifically or in
misdemeanor cases in general. See Baker v. City of Fair-
banks, 471 P.2d 386 (Alaska 1970).
There are several important ramifications involved in
a first conviction of misdemeanor D.U.I. in the State of
Nevada:
1. Defendant must choose between two (2) days
imprisonment or perform forty-eight (48) hours of
work for the community which computes to six (6)
days at eight (8) hours per day. N.R.S.
484.3792(1)(a)(2).
60
2. Defendant must wear “distinctive garb” while
rforming this community service, which garb must
identify him as a violator of the DUI laws.
3. A mandatory minimum fine of $200.00 but not
more than $1,000.00. N.R.S. 484.3792(1)(a)(3).
4. Defendant must complete at his own expense,
usually $175.00 or greater, an educational course on
the abuse of alcohol and controlled substances
approved by the Department of Motor Vehicles, and
complete the course within the time specified in the
Order of the Court. N.R.S. 484.3792(1)(a)(1).
5. Suffer a mandatory ninety (90) day suspension of
his driver’s license. N.R.S. 484.460(1)(c).
6. Suffer almost certain insurance premium
increases, and the
7. Social stigma of being a convicted “drunk
driver”.
The criminal charge of D.U.I. is a misdemeanor
which carries a maximum period of incarceration of six
(6) months in the local County Jail and a maximum fine
of $1,000.00. N.R.S. 484.3792.
Upon a second conviction of D.U.I. within seven (7)
years, a defendant must be sentenced to a mandatory
minimum period of ten (10) days incarceration, and a fine
of not less than $500.00. N.R.S. 484.3792(1)(b). Upon a
third charge of D.U.I. within seven (7) years, the charge
becomes a felony punishable by imprisonment for ,not
less than one (1) year nor more thar. six (6) years, in a
minimum security institution, honor camp, restitution
center, or similar facility, and defendant must be fined
not less than $2,000.00 nor more than $5,000.00. N.R-S.
484.3792(c).
61
Equally important is that no D.U.I. charge is dismiss-
able or negotiable by the prosecuting authorities “unless
(the prosecuting attorney) knows or it is obvious that the
charge is not supported by probable cause or cannot be
proved at the time of trial.” N.R.S. 484.3792(3).
Again, the United States Supreme Court, in Duncan,
supra, stated that a national standard be utilized in deter-
mining whether a Jury Trial is mandated for a particular
offense, at 88 S.Ct. 1453:
In determining whether the length of the autho-
rized prison term or the seriousness of other punishment
is enough in itself to ire a jury trial, we are
counseled by District of Columbia v. Clawans, 300 U.S
617, 57 S.Ct. 660, 81 L.Ed. 843 (1937), supra, to refer
to objective criteria, chiefly the existing laws and
practices in the Nation. In the federal system, petty
offenses are defined as those punishable by no more
than six months in prison and a $500.00 fine.
(Emphasis and parenthetical material added.)
See also, Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909,
49 L.Ed.2d 859 (1976), wherein the Court reviewed legis-
lative reenactments of the death penalty in one form or
another after Furman v. Georgia, 408 U.S. 238, 92 S.Ct
2726, 33 L.Ed.2d 346 (1972), in these words, at 96 S.Ct.
2928:
. The most marked indication of society’s endorse-
ment of the death penalty for murder is the legisla-
“tive response to Furman. The legislatures of at least
: 35 States have enacted new statutes that provide for
the ‘death penalty for at least some crimes that result
in the death of another n. And the Congress of
the United States, in 1974, enacted a statute provid-
ing the death penalty for aircraft piracy that results
in death. Phese recently adopted statutes have
attempted to address the concerns expressed by the
62
Court in Furman primarily (i) by specifying the fac-
tors to be weighed and the procedures to be followed
in deciding when to impose a capital sentence, or (ii)
by making the death penalty mandatory for specified
crimes. But all of the post Furman statutes make clear
that capital punishment itself has not been rejected
by the elected representatives of the people.
The national s‘andards reflected in the allowance of
Jury Trials ,or D.U.I. charges in forty-seven (47) States
clearly mandate a Sixth and Fourteenth Amendment
requirement that a Jury Trial be allowed, at a defendant's
request, in a D.U.I. trial. The draconian consequences
attendant to such a conviction, in their own right, lend
strength to the imposition of a jury between the accused
and the force of the State or prosecuting attorney.
The Federal District Court for the District of
Nevada Has Ruled That As A Matter of Federal
Constitutional Law, A Defendant Charged With
Driving Under the Influence of Intoxicating
Liquor Has the Right to A Jury Trial
This Court is referred to the well-reasoned decision
of Judge Edward Reed, attached hereto as Exhibit “B”, in
the case of Bronson v. Swinney, CV-R-86-130-ECR, filed
October 1, 1986, in the United States District Court for the
District of Nevada. Without reiterating the law in that
decision in the opening brief proper, the law and reason-
~g of that decision is urged upon this Court. The Bronson
case is now stuck in the Ninth Circuit awaiting a current
ruling by this Court on this issue, since Bronson’s attor-
ney neglected to exhaust his State remedies before gallop-
ing into the federal system.
63
See also United States v. Craner, 652 F.2d 23 (CA9
1981), allowing jury trials for first-time DUI offenders in
federa! court.
C.
The United States Court of Appeals for the Ninth
Circuit Has Ruled In a State Case That A Potential
Fine of $1,000.00 Triggers the Right To A Jury Trial
In Rife v. Godbehere, 814 F.2d 563, 565 (CA9 1987), the
Ninth Circuit ruled that an Arizona State Defendant
charged with a Class I misdemeanor punishable by a fine
of up to $1,000.00 was entitled to a jury trial. The Court
followed the rule in United States v. Hamdan, 552 F.2d 276
(CA9 1977) which granted a jury trial on a federal charge
of the making of false statements in documents filed with
the Immigration and Naturalization Service, where a
potential fine of $1,000.00 existed. Rife extends this rule to
a State offense punishable by a potential fine of $1,000.09.
Inasmuch as a first-offense D.U.I. charge carries a poten-
tial fine of $1,000.00, a jury trial is required on this
separate legal basis and case.
IV
CONCLUSION
N.R.S. 266.550 cannot withstand the tide of federal
constitutional law cited above. This Court is not asked to
hold the statute unconstitutional for all purposes (misde-
meanor crimes), as the Rife case might strongly suggest;
but this Court is urged to construe N.R.S. 266.500 inappli-
cable to DUI offenses pursuant to the federal and state
constitutional provisions enumerated above. This would
64 65
allow Defendant BLANTON his jury trial in North Las IN THE SUPREME COURT OF THE STATE OF NEVADA
Vegas Municipal Court. seen
DATED this 19th day of June, 1987. CITY OF NORTH Case No. 18065
LAS VEGAS, NEVADA,
GRAVES, LEAVITT & KOCH Petitioner,
/s/ John J. Graves, Jr. vs.
JOHN J. GRAVES, JR., ESQ.
601 South Sixth Street
Las Vegas, Nevada 89101
ADDELIAR D. GUY, DISTRICT
JUDGE, EIGHTH JUDICIAL
(702) 385-7277 DISTRICT COURT OF THE
Attorn for Defendant/ STATE OF NEVADA,
Appellant MELVIN BLANTON Respondent.
_ ANSWER TO PETITION FOR
A WRIT OF CERTIORARI
(Filed July 1, 1987)
ATTORNEY FOR ATTORNEY FUR
lr ETITIONER RESPONDENT
MARK L. ZALAORAS JOHN G. WATKINS, ESQ.
Deputy City Attorney 333 N. Rancho Dr.
City of North Las Vegas Suite 633
2200 Civic Center Dr. Las Vegas, Nevada 89106
North Las Vegas, NV 89030
66
TABLE OF CONTENTS
Page
TABLE OF CONTENTS........-----seeeeeceeeeeeee i
CASES AND AUTHORITIES...........-----++0000% ii
NEVADA REVISED STATUTES .........---++++++5> ii
AEE . cc ccccccscscedcdnecscocatescsédedsocesceses 1
lt rrr? rrr tit 2
Il.
ARGUMENT
A.
ARE INDIVIDUALS CHARGED WITH VIOLAT-
ING OFFENSES UNDER NRS 484.379 CONSTI-
TUTIONALLY GUARANTEED A TRIAL BY
JURY?
IS NRS 266.550 UNCONSTITUTIONAL?
INDIVIDUALS CHARGED WITH VIOLATING
NRS 484.379 SUBSEQUENT TO JULY 1, 1983
ARE CONSTITUTIONALLY GUARANTEED A
TRIAL BY JURY AS THE OFFENSE IS
“SERIOUS” AS OPPOSED TO “PETTY”
SINCE AN INDIVIDUAL HAS A RIGHT TO A
JURY TRIAL FOR NRS 484.379 VIOLATIONS,
NRS 266.550 IS UNCONSTITUTIONAL
67
CASES AND AUTHORITIES
Page
Case
BRONSON V. SWINNEY CV-R-86-130 ECR
SEED. «cane chdseesGseebeebeeeenctsépcoeneesoocce: 3
CITY NORTH LAS VEGAS ex rel. ARNDT V.
DAINES 92 Nev. 292, 550 P. 2d 399 (1976) ......... 4
DUNCAN V. LOUISIANA 391 U:S. 145, 20 L. Ed.
YP oF § Se ST eee 3
STATE ex rel. WATSON V. MERIALDO 70 Nev. 322,
| hk f RR a RE rr PPT Ty 4,5
STATE V. SMITH 99 Adv. Op. 172 (1983)............. 3
Nevapa Revisep STATUTES
dl eke neseouesees 1, 2, 4, 5
RT A i el, ee ttie sce ceeeeedeedes 4
i E. . «oc cu ceeeseeseeeeeseecesesoconces 2, 3, 4
68
IN THE SUPREME COURT OF THE STATE OF NEVADA
*e fe 8 © ©
CITY OF NORTH Case No. 18065
LAS VEGAS, NEVADA,
Petitioner,
vs.
)
)
)
)
}
ADDELIAR D. GUY, DISTRICT ?
JUDGE, EIGHTH JUDICIAL )
DISTRICT COURT OF THE )
STATE OF NEVADA, ‘
)
Respondent.
ANSWER TO PETITION FOR
A WRIT OF CERTIORARI
FACTS
Defendant, MARK D. FRALEY, was arrested for
“Driving under the influence of intoxicating liquor” here-
inafter referred as D.U.I. and was scheduled for trial in
the North Las Vegas Municipal Court. Fraley file a writ-
ten demand for trial by jury. The municipal judge denied
the request and subsequently convicted Defendant of the
D.U.I. charge. An appeal was filed in the Eight Judicial
District Court.
One issue raised on appeal was the denial of the
right to be tried by jury. The Honorable Addeliar D. Guy
considered briefs and arguments of the respective parties
and held that all defendants charged with D.U.1.’s subse-
quent to July 1, 1983 are constitutionally entitled to a trial
by jury if desired. He further ruled that NRS 266.550 in so
far as it prevents or denies jury trials in municipal courts,
is unconstitutional. Counsel for the City of North Las
69
Vegas filed a Petition for Writ of Certiorari in this Court.
Two issues arise from these facts (1) Are individuals
charged with D.U.I. offenses under NRS 484.379 entitled
constitutionally to a jury trial? and (2) Is NRS 266.550
unconstitutional? If the answer to the former is negative
then the second issue becomes moot. On the other hand if
jury trials are constitutionally guaranteed the second
issue is alive and must be considered accordingly.
ISSUES
1.
ARE INDIVIDUALS CHARGED WITH VIOLAT-
ING OFFENSES UNDER NRS 484.379 CONSTI-
TUTIONALLY GUARANTEED A TRIAL BY
JURY?
Il.
IS NRS 266.550 UNCONSTITUTIONAL?
ARGUMENT
A.
INDIVIDUALS CHARGED WITH VIOLATING
NRS 484.379 SUBSEQUENT TO JULY 1, 1983
ARE CONSTITUTIONALLY GUARANTEED A
TRIAL BY JURY AS THE OFFENSE IS
“SERIOUS” AS OPPOSED TO “PETTY”
Individuals within Nevada’s boundaries are constitu-
tionally guaranteed trial by jury. The Nevada Constitu-
tion, Article I, Section 3 mandates,
“The right of trial by jury shall be secured to all and
remain inviolate forever .. . ” (Emphasis Added)
70
Federal protection is also afforded the public. The Sixth
Amendment of the United States Constitution holds,
“In all criminal prosecutions, the accused shall enjoy
the right to a speedy trial, by an impartial jury of the
State and district wherein the crime shall have been
committed, which district shall have been previously
ascertained by law .. . ” (Emphasis Added).
This right to a jury trial is a fundamental one and is
applicable to State proceedings through the 14th Amend-
ment. Duncan v. Louisiana, 391 U.S. 145, 20 L.Ed. 2d 491,
88 S. Ct. 1444 (1968). It is well settled however that not all
offenses require or trigger a trial by jury but rather only
those which are “serious” as opposed to “petty”. (It is
worthy to note that even though an offense may be
considered “petty” under the United States Constitution,
the State constitution may require that it be deemed
“serious” and guarantee a jury trial. A State is free to
afford its citizens more rights than guaranteed by the
federal constitution. However, it is this writer’s position
that under either constitution, a jury trial is guaranteed
for NRS 484.379 violation). Characterizing a particular
offense as either “serious” or “petty” is not automatic but
rather requires considering a number of issues and fac-
tors. This was done in a well reasoned decision by Judge
Reed in Bronson v. Swinney, CV-R-86-130 LCR (10-1-86)
which should be adopted by this Court. C.f. State v.
Smith, 99 Adv. Op. 172 (1983) (State v. Smith, is inapplica-
ble for now jail time is mandatory unlike the situation
and state of the law at the time of State v. Smith, supra.) in
addition to several other collateral consequences arising
from a conviction. No one can honestly say that Nevada
does not consider D.U.I.’s to be serious. A mere reading
of this Court’s opinions on D.U.I. related issues dispells
71
anything to the contrary. Such a strong position is war-
ranted as “drinks are dangerous when they drive”. How-
ever, it would be more dangerous if the government were
allowed to take away a valuable right from its citizens.
Under the circumstances that now exist, both the United
States and Nevada Constitutions guarantee a trial by jury
for offenses under NRS 484.379
SINCE AN INDIVIDUAL HAS A RIGHT TO A
JURY TRIAL FOR NRS 484.379 VIOLATIONS,
NRS 266.550 IS UNCONSTITUTIONAL
Municipal courts are unconstitutionally authorized
and created by the legislature. See Article 6, Section 1 of
the Nevada Constitution. It is important to note that once
municipal courts are established, they exist as a coequal
branch of local government and are part of the constitu-
tional judicial system of this state. See City of North Las
Vegas ex rel. Arndt v. Daines, 92 Nev. 292, 550 P. 2d 399
(1976). The legislature is empowered to fix by law the
jurisdiction of the municipal courts. See Article 6, Section
9 of the Nevada Constitution. NRS 266.555 sets the
municipal courts’ jurisdiction which includes D.U.I.
cases. It is well settled that municipal courts once created
are part of the constitutional judicial system. Equally
true, the executive and/or legislative branches of state
government may not exercise or restraint the judicial
power. See State ex rel. Watson v. Merialdo, 70 Nev. 322,
268 P. 2d 922 (1954). Forbidding jury trials in municipal
court amounts to the legislative branch undertaking the
role of judicial power. This they cannot do. Therefore,
NRS 266.550 is unconstitutional as to D.U.I. cases.
72
Respectfully submitted,
/s/ John G. Watkins
JOHN G. WATKINS, ESQ.
Att for FRALEY
333 N. Rancho Dr., #633
Las Vegas, Nevada 89106
CERTIFICATE OF MAILING
1 HEREBY CERTIFY that a copy of the above and
foregoing ANSWER TO PETITION FOR WRIT OF CER-
TIORARI was deposited in the mail at Las Vegas, Nevada
on this 30th day of June, 1987 addresses as follows:
MARK L. ZALAORAS, Deputy City attorney, City of
North Las Vegas, 2200 Civic Center Dr., North Las Vegas,
Nevada 89030.
/s/ Barbara Watkins
An —- of JOHN G.
WAT , ESQ.
73
IN THE SUPREME COURT OF THE STATE OF NEVADA
MELVIN R. BLANTON, ) No. 17940
Appellant,
vs.
THE NORTH LAS VEGAS
MUNICIPAL COURT, NORTH LAS
VEGAS, NEVADA AND THE
HONORABLE GARY DAVIS,
MUNICIPAL. JUDGE THEREOF,
Respondents.
CITY OF NORTH LAS VEGAS,
NEVADA,
Real Party in
Interest.
ee ee ee eee ee ee ee ee
RESPONDENT’S ANSWERING BRIEF
(Filed July 24, 1987)
JOHIN J. GRAVES, JR., ESQ. MARK L. ZALAORAS, ESQ.
GRAVES, LEAVITT & KOCH Deputy City Attorney
601 South Sixth Street 1301 East Lake Mead Bivd.
Las Vegas, Nevada 89101 North Las Vegas, NV 89030
(702) 385-7277 At CG I's Offi
State Mailroom
Las Vegas, Nevada 89158
Counsel for Appellant Counsel for Respondents
74 75
Il.
1.
TABLE OF CASES, STATUTES
EARLS CP CONSENTS Page No. AND OTHER AUTHORITIES
Il TABLE OF CASES, STATUTES AND OTHER Page No.
IS eh tae De ee mere i UNrtep States CONSTITUTION
ee Ee eee See iv a eee 3, 4
IV STATEMENT OF THE CASE.................. Vv PO EEE FS TE ne 3
V ARGUMENT a de cububdedesebel 8
A. eo abbeeeuseee 8, 9
The Ruling in State v. Smith is Controlling Fourteenth Amendment.................650ceeeeeeees 9
Authority on the Jury Trial Issue, Even in Light
of the lative Amendments to NRS 484.379
GS Wh ddunedsétncdusscsecauveussebasecues< 1 NevaDa CONSTITUTION
B. cued avacoubeees 5
There is no Federal Constitutional Right to Trial
by Jury for Misdemeanor DUI Offenses....... 3 STATUTES
1. Decisions of federal courts are not auto- 28 U.S.C. §1331 TTT TTTITILILILITILITITT iii +
matically binding upon state courts ..... 3 oe cnsuuesuocaiens 4
2. First and second offense DUI violations = | =igusoc eg, ©... 12, 14
are “petty offenses” under f j 1 consti- 18 U.S.C. §1 COPE SESE EESES ESE SESE SEES 2
tutional law and defendants are not enti- a euuaenstihs 2
SS GD GD OF Bie ccccccccccccccccccs 8
le i oe lle ne coaseereaheeee 2
ERR SIRS ORES Fe, ee re ye 3
EE, ee a NT 3
Cases
Baldwin v. New York 399 U.S. 66, 90 S.Ct. 1886
SELES I Se ee 11, 15
76
Bronson v. Swinney 648 F.Supp 1094 (D.Nev. 1986)
peeceeereseceeseeseneecenceseneoustsesecseess 7, 15, 16
Callan v. Wilson 127 U.S. 540, 8 S.Ct. 1301 (1888) ..... 8
Cheff v. Schackenberg 384 U.S. 373, 86 S.Ct. 1523
SEED cccccceceseccocevenssecesoccesebeuasesescones 9
Codispoti v. Pennsylvania 418 U.S. 506, 94 S.Ct.
f . errr ry TTT TTT ttt 13
Dean v. Crisp 536 P.2d 961, (C.A. Okla. 1975) ........ 6
District of Columbia v. Clawans 300 U.S. 617, 57
BED, GED GREE ccccccccccccccsvccccccsccnssveccees 9
Duncan v. Louisiana 391 U.S. 145, 88 S.Ct. 1444
RED co dcbcvencecacscusesesstocsenconetesestess 9, 15
Frank v. United States 395 U.S. 147, 89 S.Ct. 1503
ED occuccecbcevecccceuesssdeuebhetucesesses 10, 15
In Re Whitehorn 1 Cal.3rd 504, 462 P.2d 361......... 6
Marbury v. Madison 5 U.S. 137 1 Cranch 137........ 5
Matos v. Rodriquez 440 F.Supp. 673 (D.C.P.R.
ee cocckstcstevecccescenssedehbenusoeeretescess 17
Muniz v. Hoffman 422 U.S. 454, 95 S.Ct. 2178
PPPPTTTToTTTTTTTT Tlie Tr Le 14
Natal v. Louisiana 139 U.S. 621, 11 S.Ct. 636 (1891) ..... 9
People v. Luros 92 Cal.Rptr. 833, 480 P.2d 633
PP avcddasnseqeewehes ceesekentt$6eees onéeceosees 6
Rahn v. Warden 88 Nev. 429 (1972) ...........505005 7
Rife v. Godbehere 814 F.2d 563, (9th Cir. 1987)...... 14
Schick v. United States 195 U.S. 65, 24 S.Ct. 826
DE odhondcdcdecdvekeccueressvesesesecennsauesess 9
State v. Harmon 685 P.2d 814 (Ida. 1984)............. 6
77
State v. Smith 99 Nev. 806 (1983) .............. 1, 2, 15
Taylor v. Hayes 418 U.S. 488, 94 S.Ct. 2687 (1974) ....13
United States v. Arbo 691 F.2d 862, (9th Cir. 1982) ....18
United States v. Craner 652 F.2d.461, (9th Cir.
a pleat le cae sick eg i 13, 16
United States ex. rel. Lawrence v. Woods 432 F.2d
1072 (7th Cir.), cert. den. 402 U.S. 983 (1970)....... 6
United States v. Fletcher 505 F. Supp. 1053 (W.D.
RE eee ee ee eR 16
United States v. Jenkins 734 F.2d 1322 (9th Cir.
I a la ial ite ih lt ek a i tin a 18
United States v. Sanchez-Meza 547 F.2d 461 (1976) .... 16
Ill.
ISSUE
WHETHER A PERSON CHARGED WITH A MISDE-
MEANOR DUI OFFENSE HAS A CONSTITU-
TIONAL RIGHT TO A TRIAL BY JURY IN VIEW OF
LEGISLATIVE AMENDMENTS TO THE DUI LAW
SINCE THE RULING IN STATE V. SMITH AND IN
LIGHT OF THE RULING BY THE FEDERAL DIS-
TRICT COURT OF NEVADA IN BRONSON V.
SWINNEY?
IV.
STATEMENT OF THE CASE
The City of North Las Vegas adopts Blanton's version
of the facts as stated in his Statement of the Case and
Relevant Facts on page 1 of his “Appellant's Opening
Brief”, with the addition of the following facts, which
were omitted by Blanton.
——
78
The City o: North Las Vegas filed a Motion to Strike
Demand for Jury Trial in the Municipal Court of North
Las Vegas on or about October 9, 1986. At the same time
Blanton’s Demand for Jury Trial was denied by the
Municipal Court, the City’s Motion to Strike Demand for
Jury Trial was granted. The Municipal Court stayed pro-
ceedings pending determination of the Petition for a Writ
of Mandamus in the District Court.
V.
ARGUMENT
A.
THE RULING IN STATE v. SMITH IS CONTROL-
LING AUTHORITY ON THE JURY TRIAL ISSUE,
EVEN IN LIGHT OF THE LEGISLATIVE AMEND-
MENTS TO NRS 484.379 SINCE 1983.
The pronouncement of this Court in State v. Smith, 99
Nev. 806 (1983) is controlling authority on the DUI jury
trial issue. The accused, Melvin Blanton, is not entitled to
a jury trial for a misdemeanor DUI offense where the
maximum authorized penalty is six (6) months in jail or
less. In Smith, supra, this Court stated:
“Persons are guaranteed the right to a jury trial
by bo.’ art I, section 3 of the Nevada Constitution,
and the sixth amendment to the United States Consti-
tution. Despite apparently significant differences in
the language of these constitutional provisions, both
provisions have been interpreted to guarantee the
right to a jury trial in a criminal matter only as it
existed at common law. Thus, there is no constitu-
tional right to trial by pry for “petty” offenses. See
Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444
(1968); State v. Ruthe, 24 Nev. 251, 52 P. 274 (1898).
Whether there is a constitutional right to a trial by
jury therefor turns upon whether the offense charged
79
is characterized as “serious” or “petty.” See Duncan
v. Louisiana, 391, U.S. at 159. In turn, the principal
criterion used in characterizing an offense as “petty”
or “serious” is the severity of the maximum autho-
rized penalty. See Baldwin v. New York, 399 U.S. 66,
S.Ct. 1996 (1969); Bloom v. Illinois, 391 U.S. 194, 211,
88 S.Ct. 1477 (1968).
In recent decisions, the United States Supreme
Court has increasingly relied upon the objective crite-
rion of the maximum possible penalty in deciding
whether to characterize an offense as “petty” or
“serious”. See Taylor v. Hayes, 418 U.S. 488, 94 S.Ct.
2697 (1974); Codispoti v. Pennsylvania, 418 U. S. 506,
94 S.Ct. 2687. Using this criterion, the Court has held
that 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. See
Codispoti v. Pennsylvania, 418 U.S. at 512.
At the time of the alleged offense, the maximum
punishment for a first-time DUI conviction in Nev-
ada under NRS 484.379 was six months imprison-
ment or a fine of up to $1,000.00. As the potential
maximum term of imprisonment is six months, it
would appear that respondent Smith’s offense was
“petty” within the Supreme Court's definition, and
that there is thus no constitutional right to trial by
jury in his DUI prosecution. . . .
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
rovides a penalty of up to six months imprisonment
or a first-time DUI offense, there is no constitutional
right to a trial by jury. The district court thus erred in
granting the writ of mandamus to compel the jus-
tice’s court to grant respondent a jury trial in his
pending DUI prosecution.” Id. at page 809-810.
The amendments to Nx&S 484.379 made in 1983 and
1985 did not change the maximum authorized penalty for
a misdemeanor DUI conviction. Those amendments did
change the minimum penalty. The 1983 Legislature
changed the minimum penalty from a fine of $100 and
mandatory counseling to a $200 fine, mandatory counsel-
ing and either 2 days in jail or 48 hours of community
service for a first offense, and the person must wear
distinctive garb to identify himself as a DUI offender if
performing the latter. NRS 484.3792. The maximum pen-
alty for either a first or second DUI remains at six months
in jail and/or a $1,000 fine. NRS 484.3792. The 1983
Legislature also amended the driver’s license revocation
law by mandating a ninety day revocation for a first
offense DUI conviction and one year for a second offense.
NRS 483.460.
The 1985 Legislature did not change any of the pen-
alty provisions for a misdemeanor DUI. It did increase
the maximum authorized penalty for a felony DUI from
six years to twenty years. NRS 484.3795.
It is clear from the above analysis that the holding in
State v. Smith, supra, remains viable even in light of the
amendments to the DUI law since the time of that deci-
sion. Therefore, there is no right to a jury trial for a
misdemeanor DUI, as that offense must still be classified
as “petty”.
THERE IS NO FEDERAL CONSTITUTIONAL RIGHT
TO TRIAL BY JURY FOR MISDEMEANOR DUI
OFFENSES.
1. Decisions of federal courts are not automatically
binding upon state courts.
81
The powers of the federal judiciary are specified in
the Constitution of the United States and the statutes
enacted by the Congress of the United States. Article III,
Section 1 of the Constitution states that:
The judicial Power of the United States, shall be
vested in one supreme Court, and in such inferior
Courts as the Congress may from time to time ordain
and establish.
Section 2 of Article II further illuminates the issue by
noting that:
Tne judicial Pewer shall extend to all Cases, in Law
and Equity, arising under this Constitution, the Laws
of the United States, and Treaties made, or which
shall be made, under their Authority; . . .
It is clear from the above language that inferior fed-
eral courts were intended to have judicial power only
over specific cases and controversies involving federal
issues. They are not authorized to decide abstract matters
or to bind state courts except to the extent that a particu-
lar case or controversy arises from a state court. The
United States Code has not given any additional powers
to the federal courts and maintai.1s this case or controv-
ery limitation.
28 USC § 1331 - The district courts shall have origi-
nal jurisdiction of all civil actions arising under the
Constitution, laws or treaties of the United States.
28 USC § 3231 - The district courts of the United
States shall have original jurisdiction, exclusive of
the States, of all offenses against the laws of the
United States.
82
Obviously the federal courts are limited in their jurisdic-
tion to specific actions. The same limitation applies to the
highest court in the land, the Supreme Court. In one of
the earliest decisions of the Supreme Court, Article III of
the Constitution was interpreted to preclude any court in
the United States federal system from acting in an advi-
sory capacity or rendering decision on general issues,
rather than on a case by case basis involving actual
controversies. Marbury v. Madison, 5 U.S. 137, 1 Cranch
137 (1803). However, because the Supreme Court is the
ultimate authority on federal questions and issues, its
decisions, while not binding except in a particular case,
are considered to be the most definitive statement of the
law which was at issue in that case and therefore upon
that specific federal question. (Most states also have pro-
visions of their state constitutions or statutes which
acknowledge the United States Supreme Court as the
controlling authority in the interpretation of federal
issues, see Article 1, Sec. 2. of the Nevada Constitution.)
While the reiteration of the above provisions of the
Federal Constitution and Statutes may seem to be super-
fluous, it is ‘mportant that they be recognized since they
are the building blocks for the case law involving the
authority of a federal court to bind a state court. Too
often it is assumed that a federal court is directly supe-
rior to a state court, when in reality, the two systems are
distinct and separate from each other; the federal system
acts only as a method of checks and balances against
improper activity by state courts. The dichotomy between
the federal and state judicial systems is well recognized
in the State of Nevada. In Bargas v. Warden, 87 Nev 30, 482
83
P.2d 317 (1971), the Supreme Court of the State of Nevada
noted that:
We are bound by the decisions of the United States
Supreme Court (Nevada Constitution, Article 1, Sec.
2.). We are not bound by the decisi »ns of the other
federal courts, Bargas at 32.
Nevada is not alone in its view regarding the force
and effect of federal decisions. In People v. Luros, 480 P.2d,
633, 92 Cal Rptr. 833 (1971), the Supreme Court of Califor-
nia in an en banc decision, reiected the interpretations of
several federal courts noting that the federal courts were
not “compelling authority” and citing to the California
case most known for outlining the division between fed-
eral and state courts, In Re Whitehorn, 1 Cal. 3rd 504, 462
P.2d 361 (1969).
Similarly, the Supreme Court of Idaho, in State v.
Harmon, 685 P.2d 814 (1984) indicated that while it might
give deference to federal district court opinions, it was in
no way bound by them. Citing the premiere federal case
in this area, United States ex. rel. Lawrence v. Woods, 432
F.2d 1072 (7th Cir. Ill.) cert. den. 402 U.S. 983 (1970),the
Idaho Court noted that federal district court rulings do
not bind state courts in unreiated cases.
Finally, in one of the most succinct statements of the
law in this area, the Court of Criminal Appeals of Okla-
homa, in Dean v. Crisp, 536 P.2d 961 (1975), stated that:
... The federal courts have no jurisdiction except in
those areas which are concerned with interpretation
of the United States Constitution. The inferior federal
courts exercise no appellate jurisdiction over state
tribunals. Therefore, decisions from these federal
courts are not conclusive on state courts... . The
84
decisions of the Federal Circuit Court of Appeals in
Lamb, supra, and Radcliff, supra, do not establish
binding precedent on this Court until the issue is
answered by the United States Supreme Court. The
inferior federal courts exercise their power only on a
case-to-case basis and can extend their power no
further. Dean at 963.
Of course the Court in Dean also noted that federal
case law is often persuasive and the Nevada Supreme
Court has also so indicated in Rahn v. Warden, 498 P.2d
1344 (1972), where the Nevada High Court acquiesced in
decisions of the Ninth Circuit Court of Appeals.
In Bronson v. Swinney, 648 F.Supp. 1094 (D.Nev. 1986)
the authority relied upon by Blanton to support his argu-
ment for a jury trial, the Federal Court had before it a
Writ of Habeas Corpus arising out of a conviction for DUI
originating in the Justice’s Court for Reno. The granting
of the Writ and the Court’s Order for a jury trial on
remand are only binding upon the original Justice’s
Court, and only in that particular case. The federal order
is not binding upon a municipal or district court in the
instant situation. A court’s holding is always limited to
those issues which are necessary to decide the case. All
other commentary is dictum and not precedent. Since
Judge Reed’s minor reference to municipal court was not
necessary to a resolution of the case, it would not be
binding.
Given the above case law, it is clear that neither the
North Las Vegas Municipal Court nor the District Court
are bound by the Bronson decision. Moveover, the State
of Nevada has not chosen to acquiesce to federal court
rulings in this area and the District Court correctly chose
85
not to have taken notice of the Bronson ruling and denied
Blanton's Petition.
2. First and second offense DUI violations are
. offenses” under federal constitutional law
and defendants are not entitled to trials by jury.
A review of the United States Constitution and
Supreme Court case decisions is necessary for a complete
understanding of the issues involved with the DUI jury
trial question. Article III, Section 2, paragraph 3 of the
United States Constitution states that:
“The Trial of all Crimes, except in Cases of Impeach-
ment, shall be by Jury; ... ”
This language was later supplemented by the Sixth
Amendment which provides that:
“In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial!
may...”
On its face, the Constitution would seem to impose
the right of trial by jury in all federal criminal cases,
bearing in mind that Article III deals only with the fed-
eral government and federal crimes. Despite this lan-
guage, however, the Supreme Court of the United States,
as the ultimate authority on the meaning of the Constitu-
tion, decided as early as 1888, in Callan v. Wilson, 127 U.S.
540, 8 S.Ct. 1301, that the language in the Constitution
must be viewed in light of the times in which it was
written. Thus the Supreme Court has consistantly hold
that the right to a jury trial was never intended te apply
to those crimes which were considered to be “petty
offenses” at common law. The Court has on numerous
occasions reitereated this distinction between “petty” and
“serious” offenses and has extended the concept to statu-
tory crimes. Cheff v. Schackenberg, 384, U.S. 373, 86 S.Ct.
1523 (1966); District of Columbia v. Clawans, 300 U.S. 617,
57 S.Ct. 660 (1937); Schick v. United States, 195 U.S. 65, 24
S.Ct. 826 (1904), Natal v. Louisiana, 139 U.S. 621, 11 S.Ct.
636 (1891).
In the landmark case of Duncan v. Louisiana, 391 US.
145, 88 S.Ct. 1444 (1968), when the Supreme Court held
that by virtue of the Fourteenth Amendment, the Sixth
Amendment right to trial by jury also applied to state
criminal proceedings, the High Court again restated its
position with regard to the limitations between “serious”
and “petty” offenses.
. . « It is doubtless true that there is a category of
petty crimes or offenses which is not subject to the
xth Amendment _ trial — and should not
be subject to the Fourteenth Amendment jury trial
requirement here applied to the States . . . the penalty
authorized for a particular crime is of major rele-
vance in determining whether it is serious or not
... The penalty authorized by the law of the locality
may be taken “as a gauge of its social and ethical
judgments,” . . . of the crime in question.
RB ay me de bpm he nen meng se
both in England and in the Colonies and have
been exempt from the otherwise comprehensive lan-
guage of the Sixth Amendment's jury trial provi-
sions. There is no substantial evidence that the
Framers —— to depart from this established
commonlaw practice, and the possible consequences
to defendants from convictions for petty offenses
have been thought insufficient to outweigh the bene-
fits to efficient law enforcement and simplified judi-
cial administration resulting from the availability of
speedy and inexpensive non-jury adjudications. . . .
In the absence of an explicit constitutional provision,
87
the definitional task necessarily falls on the courts,
which must either pass on the validity of the legisla-
tive attempts to identify those petty offenses which
are exempt from trial, or where the legislature
has not itself to the problem, themselves
face the questions in the first instance . . .
In determining whether the h of the authorized
term or the seriousness of other punishment is
enough in itself to require a trial, we are coun-
seled by District of Columbia v. C , supra, to refer
to ve criteria, chiefly the laws and practices in
the Nation. 88 S.Ct. at 1453.
The Duncan Court then went on to note that both at
common law and in federal statutes, the dividing line
between “petty” and “serious” offenses was a maximum
jail sentence of six months. The Court also indicated, in
Footnote 35, that with the exception of criminal contempt
offenses, the relevant penalty to be considered was the
possible maximum sentence which could be imposed, not
the actual sentence levied against the defendant.
Subsequent to Duncan, the Supreme Court has writ-
ten several decisions which clarify the manner in which a
crime is to be classified as “petty” or “serious” and
stresses that the amount of jail time which could be
imposed is to be considered the most important, almost
exclusive, factor in making such a determination. The
first of these cases is Frank v. United States, 395 US. 147,
89 S.Ct. 1503 (1969). Frank dealt with a criminal contempt
charge arising out of the violation of an administrative
ruling. The Court succinctly reviewed the steps a court
should take in deciding whether or not a jury trial is
warranted.
“In determining whether a particular offense can be
classified as ‘petty,’ this Court has sought objective
indications of the seriousness with which society
regards the offense. . . .The most relevent indication
of the seriousness of an offense is the severity of the
penalty authorized for its commission.
- the — ea tions, the severity of
e penalty autho , not the penalty actual!
imposed, is the relevant criterion. In such onsen, the
legislature has included within the definition of the
crime itself a judgment about the seriousness of the
offense.” Frank. at 89 S.Ct. at 1505.
Frank also held that collateral consequences of a convic-
tion, if contemplated within the definition of “petty” by
the legislature, would not remove an offense from the
“petty” category. Thus the Court in Frank rejected the
claim that a three year sentence of probation made an
otherwise “petty” offense a “serious” one for purpose of
a jury trial and noted that:
“Probation is, of course, a significant infringement of
personal freedom, but it is certainly less onerous a
restraint than jail itself.” Frank, 89 S.Ct. at 1506.
The next major federal case dealing with jury trials is
Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886 (1970). In
Baldwin, the defendant was charged with a crime which
was punishable by up to one year imprisonment and
which by statute could not be tried by jury. It was in
Baldwin that the Supreme Court established the outer
limit for the dividing line between “petty” and “serious”
crimes. Any offense which carried a penalty in excess of
six months in jail would be “serious”, those whose maxi-
mum jail time did not exceed six months would be
“petty”. The Court made no mention of other factors,
such as the amount of the fine, except to briefly refer to
the $500.00 fine limit contained in the federal definition
of “petty” under 18 USC § 1. The majority of the opinion
centers around the issue of imprisonment and the need
for objective criteria to make a determination.
“ .. This near-uniform jud t of the Nation [that
any jail time over six months removes a crime from
the ‘petty’ offense category] 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.
Of necessity, the task of drawing a line ‘requires
attaching different consequences to events which,
when they lie near the line, actually differ very little.’
Duncan, supra, at 161, 20 L.Ed.2d at 502. One who is
threatened with the ibility of imprisonment for
six months may find little difference between the
potential consequences that face him, and the conse-
quences that faced the appellant here. Indeed, the
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
affecting career and his reputation.
the accused cannot possibly face more than
six months’ imprisonment, we have held that these
disadvantages, onerous as they may be, may be out-
weighed by the benefits that result from speedy and
inexpensive non-jury adjudications.” Baldwin, 90
S.Ct. at 1890.
Baldwin clearly sets forth the type of “balancing” test the
Supteme Court recommends in all cases involving the
jury trial issue. However, lower courts and numerous
attorneys have taken Baldwin out of context. For example,
the national standards language of Baldwin has been
referred to by Judge Reed in Bronson and by the Ninth
Circuit in some opinions as supporting grounds for the
granting of jury trials in DUI cases. United States v.
90
Craner, 652 F.2d 461 (9th Cir. 1976). The reasoning stated
is that since the majority of states do grant a defendant a
jury trial for DUI offenses, then this is a reflection by the
“nation” that the offense is a serious one. While many
states do allow for jury trials in DUI cases, they also
allow jury trials in most misdemeanor cases, that is most
cases where the penalty does not exceed six months’ in
jail. Those states which still punish DUI by penalties
which do not exceed the six month standard still consider
the offense as “petty.” These states have not redefined
“petty”, instead they have simply determined that jury
trials should be granted in all crimes, petty or not, either
because their state constitutions require jury trials in all
criminal matters and are broader in scope than the fed-
eral constitution, or because state legislatures have
enacted statutes providing for jury trials in petty offense
cases. Nationally, the standard for defining a “petty”
offense still turns primarily around the maximum possi-
ble jail sentence and the six month rule. Codispoti v.
Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687 (1974); Taylor v.
Hayes, 418 U.S. 488, 94 S.Ct. 2687 (1974).
For some years after Duncan, the Supreme Court did
not rule on the relationship of fines to “petty” offense.
This changed with the rendering of the decision of the
Court in Muniz v. Hoffman, 422 U.S. 454, 95 S.Ct. 2178
(1975). The Court in Muniz noted that while the six
month guideline had been taken in part from the statu-
tory definition of a “petty offense” contained in 18 USC
-§ 1(3) ($500.00 fine and/or six months imprisonment) this
did not mean that any fine which exceeded $500.00
would automatically cast the offense into the serious
category. Muniz involved a $10,000.00 fine which was
91
imposed against a labor union in a contempt type pro-
ceeding. The High Court did not set any outside fine
standard for jury purposes in Muniz, but it did indicate
that fines are, to some extent, at the bottom of the consid-
erations which are to be weighed.
“It is one thing to hold that deprivation of an indi-
vidual’s liberty beyond a six month term should not
be imposed without the protections of a jury trial, but
it is quite another to suggest that, regardless of the
circumstances a jury is required where any fine
greater than $500 is contemplated. From the stand-
point of determining the seriousness of the risk and
the extent of the possible deprivation faced by a
contemnor, imprisonment and fines are intrinsically
different.” (Emphasis added). Muniz at 477.
Blanton cites Rife v. Godbehere, 814 F.2d 563 (C.A.
1987) where the Ninth Circuit held that the defendant
was entitled to a jury trial on the basis alone that he was
subject to a $1,000 fine pursuant to a charge brought
under an Arizona statute. The reasoning to support this
decision is weak in view of the Muniz decision. It is also
unrealistic in the sense of the economics of our times; a
$500 fine had much greater impact twenty years ago on
an individual defendant than a $1,000 fine would today.
Based upon a reading of the Supreme Court cases
cited above, the City submits that no federal grounds
exist for this Court to grant jury trials for DUI defen-
dants. The fact that Nevada’s statute requires mandatory,
as opposed to discretionary, imposition of imprisonment
is irrelevant, since the Supreme Court stated in Duncan,
supra, that it is the potential, not the actual jail sentence
which is important. The fact that the DUI statute contains
provisions such as mandatory counseling and that a DUI
92
conviction will result in collateral consequences (s‘ch as
the loss of a driver’s license or enhanced punishme \t on
a second offense) is insufficient to mandate a jury trial.
Frank, supra, contained an obvious statement of the High
Court that regulatory provisions of sentencing, such as
probation, do not take an offense out of the “petty”
category if it is otherwise treated as a “petty” offense,
that is, punishable by no more than six months in jail. As
noted in Baldwin, supra, the fact that the conviction could
result in serious consequences and repercussions does
not control \.hether the crime is classified as “petty” or
“serious.” Finally, the mere fact that Nevada has chosen
to impose a $1,000 fine, instead of a $500 fine, does not
automatically remove the offense from the “petty” cate-
gory, especially given the rulings of the Nevada Supreme
Court in this area, specifically in State v. Smith, supra.
Considering the above analysis, it is difficult to agree
with the reasoning of Judge Reed in Bronson. With ail due
respect to Judge Reed, the City submits that his opinion
in Bronson presents an incomplete statement of the case
law in this area and the rationale and policies set forth by
the United States Supreme Court.
Judge Reed relied heavily upon two Ninth Circuit
cases dealing with jury trial issues. United States v. Craner,
652 F.2d 461 (9th Cir. 1976) and United States v. Sanchez-
Meza, 547 F.2d 461 (1976). The City’s reading of both of
these cases is that they represent attempts by the Ninth
Circuit to expand the concept and scope of jury trials way
beyond that established by the United States Supreme
Court. The City does not agree with the reasoning of the
Ninth Circuit in either case and argues that while the
Ninth Circuit (absent an overriding ruling from the
93
Supreme Court) can create a greater scope of jury trials in
the federal courts under its appellate jurisdiction, its
rulings are not binding upon the State of Nevada and are
in direct contradiction with the case law established by
the Supreme Court, which is binding upon Nevaiia.
Moreover, both Craner and Sanchez-Meza concerned feci-
eral offenses taking place on federal land. Thus, ister-
pretation of federal statutory law was involved, not state
law.
Not every federal court agrees with Craner. In United
States v. Fletcher, 505 F.Supp. 1053 (1981), the United
States District Court for the Western District of Virginia
not only summarily denied a request for a jury trial
involving a DUI committed in a federal park, but also
rejected the Craner concept of looking beyond the autho-
rized penalties. Indeed, the Fletcher Court specifically
held that:
.. . the revocation of the right to operate a vehicle
upon the highways, . . . is not a part of the punish-
ment provided by law to be fixed by a court or jury
upon conviction of a crime. The revocation
... follows as a consequence and effect of conviction
for crime. Fletcher at 1054.
Another federal court has rejected the concept that
courts should consider the treatment of the offense at
common law or whether the offense is malum in se, again
in direct conflict with Craner and Sanchez-Meza. The
United States District Court for the District of Puerto
Rico, in Matos v. Rodriquez, 440 F.Supp. 673 (1976), firmly
rejected the “nature of the offense” method of classifying
crimes for purposes of jury frials. The Court gave great
94
weight to the Supreme Court decision in Frank, supra, and
stated that:
... the Court reiterated the importance of the sever-
ity of the maximum sentence and disregarded the
possibility of an extended period of probation as a
criterion for concluding that an offense was serious.
It concluded that of the objective indicators, the most
important is the severity of the sentence. In cases
where the maximum penalty has been provided for
in a statutory m nner, the legislature has been said to
include within the penalty im} osed < statement about the
seriousness of the offense. . . .
_. . It is thus clear that the doctrine of District of
Columbia v. Colts, supra, wherein the primary impor-
tance was given to the nature of the offense, is no
ionger applicable. Matos at 676, 677.
Even the Ninth Circuit has had occasion to backtrack
with regard to its decision in Craner. In United States v.
Arbo, 691 F.2d 862 (1982), the Ninth Circuit referred to its
policy in Craner. In Arbo, the defendant was charged with
a violation of both federal statute and a federal regula-
tion. The Court noted that its decision in Craner was
based on “extraordinary circumstances”, that is the lack
of legislative judgment because the offense arose from a
federal regulation. But in Arbo, the Court said no extraor-
dinary circumstances existed since the defendant was
charged under a federal statute, which did show legisla-
tive judgment that the crime should be a petty offense
and triable without a jury.
In addition to the Arbo decision, the Ninth Circuit
has, in one other opinion, apparently recanted, at least in
part, the doctrine in Craner. In United States v. Jenkins, 734
F.2d 1322 (1983), the Court found that the imposition of a
two year probation period under the Youth Corrections
95
Act did not create extraordinary circumstances warrant
ing a jury trial; that this collateral consequence did not
remove the offense from the petty category because it
was punishable by not more than six months in jail.
(Jenkins involved a simple assault.)
Given the detailed review of the case law contained
in this Brief of the decisions of the United States Supreme
Court, together with an in depth reading of the decisions
of the Ninth Circuit, which are often ambiguous at best, it
is evident that DUI offenders in the State of Nevada, and,
more specifically, those charged in the Municipal Court of
North Las Vegas, do not have a constitutional right to a
trial by jury.
For the reasons heretofore stated, the City requests
that the Court uphold the decision and order below and
remand the case to the Eighth Judicial District Court for a
trial do novo without a jury. The nature of a misde-
meanor DUI offense in Nevada has not changed from
what is categorized as “petty” to that of “serious”. The
maximum authorized punishment remains at six months
in jail, which constitutes a clear line of demarcation
between petty and serious offenses.
DATED this 30th day of July, 1987.
ROY A. WOOFTER, CITY ATTORNEY
CITY OF NORTH LAS VEGAS
: /s/ Mark L. Zalaoras
ARK L. ZALAORAS
ey By Fon Blvd.
North Las , NV 89030
—— for pondents and
Real Party in Interest
CERTIFICATE OF MAILING
I hereby certify that I served a copy of the foregoing
Respondents’ Answering Brief by placing a true and cor-
rect copy of the same for mailing sealed in an envelope
properly addressed for mailing in the United States Mail
at North Las Vegas, Nevada, postage prepaid, addressed
to:
JOHN J. GRAVES, JR., ESQ.
GRAVES, LEAVITT & KOCH
601 South Sixth Street
Las Vegas, Nevada 89101
ATTORNEY GENERAL'S OFFICE
State Mailroom Complex
Las Vegas, Nevada 89158
DATED this 30th day of July, 1987.
/s/ Sherry Berrett
An Employee of the City of
North Las Vegas
97
IN THE SUPREME COURT OF THE STATE OF NEVADA
MELVIN R. BLANTON, ) No. 17940
Appellant,
vs.
THE NORTH LAS VEGAS
MUNICIPAL COURT, NORTH LAS
VEGAS, NEVADA AND THE
HONORABLE GARY DAVIS,
MUNICIPAL JUDGE THEREOF,
Respondents.
CITY OF NORTH LAS VEGAS,
NEVADA,
Real Party in
Interest.
Nee ee ee ee ee ee ee ee ee ee
APPELLANT'S REPLY BRIEF
(Filed Sept. 2, 1987)
JOHN J. GRAVES, JR., ESQ. MARK L. ZALAORAS, ESQ.
GRAVES, LEAVITT & KOCH Deputy City Attorney
601 South Sixth Street 1301 East Lake Mead Blvd.
Las Vegas, Nevada 89101 North Las Vegas, NV 89030
(702) 385-7277
Attorney General’s Office
State Mailroom Complex
Las Vegas, Nevada 89158
Counsel for Appellant Counsel for Respondents
98
TABLE OF CONTENTS
TABLE OF AUTHORITIES............
I LEGAL MEMORANDUM .............
TET CONCLUIGION occ ccccccccccscccescus
MT APPUNUIA.. cccccccocscccoccscesssnes
IV CERTIFICATE OF SERVICE BY MAIL.
TABLE OF AUTHORITIES
CASES
Page No
Casper v. Cheatam No. 86-307, 07/21/87 Wyomin
Supreme Court 41 CrlL 2354 (08/12/8
(Attached as Appendix).................
Landry v. Hoepfner 818 F.2d 1169 (CA5 1987).......... 1
Landry v. Hoepfner 822 F.2d 510 (CA5 1987)
1.
LEGAL MEMORANDUM
Counsel, in this Reply Brief, wishes only to point out
two (2) recent cases which have allowed jury trials in DUI
cases. The first is Casper v. Cheatam, No. 86-307, 07/21/87,
a Wyoming Supreme Court case which has yet to be
reported. The case is reported at 41 CrL 2354 (08/12/87)
and a copy of that page is attached for the review of the
Court in the Appendix. The majority appears to have
based the finding on the Wyoming Constitution, but
requires a jury trial or demand even when no jail term is
possible upon conviction, and only a maximum fine of
$750.00 can be imposed.
The second case is Landry v. Hoepfner, 818 F.2d 1169
(CAS 1987) wherein a three-judge panel held that the
Sixth Amendment required a jury trial in a DUI case in
Louisiana. There, upon conviction, the Court reasoned, a
six (6) month jail term is possible, a fine of up to $500.00,
serious economic repercussions can occur (increased
insurance rates), public opprobrium, and a sixty (60)-day
suspension of the driver’s license. The reasoning of this
case is impeccable. Landry was ordered set for en banc
hearing, 822 F.2d 510 (CA5 1987).
Il.
CONCLUSION
State and Federal cases overwhelmingly allow jury
trials in DUI cases. The State of Nevada is one of a small
minority of states which have shown reluctance to
100
recognize the right. This Court should require a jury trial
upon demand in a first-offense DUI case.
DATED this 28th day of August, 1987.
GRAVES, LEAVITT & KOCH
/s/ John J. Graves, Jr.
JOHN J. GRAVES, JR., ESQ.
601 South Sixth Street
Las Nevada 89101
(702) 7277
Att for Defendant/
A lant MELVIN BLANTON
IN THE SUPREME COURT OF THE STATE OF NEVADA
CITY OF NORTH LAS VEGAS, ) No. 18065
NEVADA )
Petitioner, .
vs. )
THE EIGHTH JUDICIAL DISTRICT ?
COURT OF THE STATE OF NEV- ?
ADA, IN AND FOR THE COUNTY ?
OF CLARK, AND THE HONOR- )
ABLE ADDELIAR D. GUY, DIs- ?
TRICT JUDGE,
Respondents.
and
MARK D. FRALEY,
Real Party in
Interest.
ee ee ee ee ee ee
101
WRIT OF CERTIORARI
(Filed Dec. 31, 1987)
TO: The Honorable Addeliar D. Guy, Judge of the
Eighth Judicial District Court:
WHEREAS, this Court having made and filed its
written decision that a writ of certiorari issue,
NOW, THEREFORE, you are compelled to vacate
your order reversing Mark D. Fraley’s conviction and to
enter a new order consistent with the decision of this
court; in your case entitled Mark D. Fraley v. City of
North Las Vegas, Case Number C76512.
WITNESS The Honorables E. M. Gunderson, Chief
Justice, Thomas L. Steffen, Cliff Young, Charles E.
Springer and John C. Mowbray, Associate Justices of the
Supreme Court of the State of Nevada, and attested by
my hand and seal this 31st day of December, 1987.
(SEAL)
Judith Fountain
Clerk
/s/ Jeanne C. Richard
Chief Deputy Clerk of the
Supreme Court
102
SUPREME COURT OF THE UNITED STATES
OFFICE OF THE CLERK
WASHINGTON, D.C. 20543
June 20, 1988
Mr. John Julian Graves Jr.
601 South Sixth Street
Las Vegas, NV 89101
Re: Melvin R. Blanton and Mark D. Fraley, v. City of
North Las Vegas, Nevada No. 87-1437
Dear Mr. Graves:
The Court today entered the following order in the
above entitled case:
The petition for a writ of certiorari is granted.
Very truly yours,
J Spaniol, Jr., Clerk
Ie joseph F. Spaniol, Jr.
103
SUPREME COURT OF THE UNITED STATES
OFFICE OF THE CLERK
WASHINGTON, D.C. 20543
June 20, 1988
Mr. John G. Watkins
333 N. Rancho Drive, #633
Las Vegas, NV 89106
Re: Melvin R. Blanton and Mark D. Fraley, v. City of
North Las Vegas, Nevada No. 87-1437
Dear Mr. Watkins:
The Court today entered the following order in the
above entitled case:
The petition for a writ of certiorari is granted.
Very truly yours,
Joseph F. Spaniol, Jr., Clerk
/s/ Joseph F. Spaniol, Jr.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.