Amicus Curiae Brief — Blanton v. North Las Vegas

In The

Supreme Court of the United § States

October Term, 1988

MELVIN R. BLANTON and MARK D, FRALEY,

Petitioners,

Vv,

CITY OF NORTH LAS VEGAS, NEVADA,

Respondent.

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. a

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF NEVADA

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BRIEF FOR THE CITY OF LAS VEGAS, NEVADA,

AS AMICUS CURIAE IN SUPPORT OF RESPONDENT

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Groner I, Oorvie

City Attorney

City of Las Vegas, Nevada

400 East Stewart Ave., # 906

Las Vegas, NV 89101

702/386-6201

Attorney for Amicus Curiae

City of Las Vegas, Nevada

COLE Le BOE SACI Sade OO

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TABLE OF CONTENTS

EE

Interest of Amicus Curiae o.oo

Argument:

Introduction and a payee Point of View

shcitetieiesisiantesinmscenesiteaiemiciinniaienans

| The Nevada State hittin Did Not a

tually Intend to Repeal the Statutory Pro-

vision (NRS 266,550) Prohibiting Jury Trials

in Certain of Nevada's Municipal Courts

Il There is No Right to a Jury Trial for a Mis-

demeanor DUI Offense in Nevada Where the

Maximum Authorized Penalty is a Jail Term

of Six Months and a Fine of One Thousand

Ill A Fine Which Exceeds the $600.00 Threshold

we Not Make an Otherwise Petty Offense .

EE Sa a

IV The Su Court of the State of Nevada

Acted | rly in Refusing to Follow a Fed.

eral rt’s Ruling ...... jie Oe

ii

TABLE OF AUTHORITIES

Casns Page

Baldwin v, New York, 399 U8, 66 (1970) cco AD, U5

Bargas v. Warden, 87 Nev, 30, 482 P.2d 317 (1971) ...... 17

Blanton v, North Las Vegas Municipal Court,

103 Ney, Adv, Op, 135, 748 P.2d 494 (1987) ..1, 2,9, 17, 18

Bronson v, panto (48 . 1094 - Nev.

1986) sama : ae

Callan v, Wilson, 127 U.S, 540 (1088) .. —eieneneiaiael 11

Cheff v. Schnackenberg, 384 U.S, 373 (1966) annul 11

Codispoti v, Pennsylvania, 418 U.S, 506 (1974) .........18, 15

District of Columbia v, C a 3 300 U.S, 617

CHET) semnstinanennl sited wohl, 12

Duncan v, Louisiana, 391 Us. 145 (19009) .. a mie: 15

Krank v, United States, 395 U.S, 147 (1960) . en

Landry v. Hoepfner, 840 F.2d 1201 (Sth Cir, 1987) .13, 15

Martin v, Ohio, 480 U.S, — (1987) on... 16

Munic v, Hoffman, 422 U8, 454 (1978) mee 7

Natal », Louisiana, 139 U.S, 621 (1891) ...... - 11

People v, Luros, 480 P.2d 6383, 92 Cal, Rptr, 833

(1971) icine 17

Rahn v. Warden, 88 Nev, 420, 498 P.2d 1944 (1972)... 18

Schick v, United States, 195 U8, 65 (1904) uu =

State v. Harmon, 107 Idaho 73, 685 P.2d 814 (1984)........ 18

State v. Smith, 09 Nev, 806, 672 P.2d 631 (1983) ...18, 14

United States v, Craner, 652 F.2d 23 (9th Cir, 1981)... 14

Nevana Revisep Srarures

1985 Nev, Stats, ch, 208, See, 12 (See App, ‘B’’)......9,10

NRS 5,050 (Bee App. OM) omen i)

iii

TABLE OF AUTHORITIES—Continued

Page

NRS 266.005 8,9

NRS 266.550 8,9, 10

Unrrep Srates Cope

18 USC See. 1(3) 14, 17

No. 87-1437

In The

Supreme Court of the United States

October Term, 1988

MELVIN R. BLANTON and MARK D. FRALEY,

Petitioners,

v.

CITY OF NORTH LAS VEGAS, NEVADA,

Respondent.

sy

—_—

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF NEVADA

_—

Ww

BRIEF FOR THE CITY OF LAS VEGAS, NEVADA,

AS AMICUS CURIAE IN SUPPORT OF RESPONDENT

sy

~~

The City of Las Vegas, Nevada, as amicus curiae

(Amicus) pursuant to Supreme Court Rule 36.4, urges

this Court to affirm the judgment of the Nevada Supreme

Court in Blanton v. North Las Vegas Municipal Court,

103 Nev. Adv. Op. 135, 748 P.2d 494 (December 31, 1987).

INTEREST OF AMICUS CURIAE

Amicus and the City of North Las Vegas, Nevada, are

two separate and autonomous, but contiguous, municipal

corporations located in Clark County, Nevada.

As to this appeal, eleven cases involving the charge ©

of driving under the influence (DUI) of intoxicating sub-

stances came before the municipal courts of the two munici-

palities. Nine of the cases originated in Amicus’ munici-

pal court and two originated in the North Las Vegas

Municipal Court.

Following certain municipal court proceedings, all of

the cases were appealed to the ‘‘county-wide’’ district

court of Clark County. Following district court proceed-

ings, all eleven cases were appealed—some by the munici-

palities, some by the individual parties—to the Nevada Su-

preme Court. Blanton v. North Las Vegas Municipal

Court, supra, was the case into which the Nevada Suy reme

Court consolidated all of the cases for review.

None of the nine cases in which Amicus was a party

is on review in this appeal. The two in which the City

of North Las Vegas was a party, those of Melvin R. Blan-

ton and Mark D. Fraley, are on review.

Because the question of a right to jury trials for first-

time DUI offenses, petty offenses in Nevada, was common

to all eleven of the cases and because of the impact

this Court’s decision will have on Amicus’ municipal judi-

cial machinery, Amicus maintains * is vitally interested

in this appeal.

3

SUMMARY OF ARGUMENT

Amicus, in its introductory comments, takes the (per-

haps unpopular) position that demands for jury trials in

first-time DUI offenses have finally begun to adversely

affect, as defendants, the lives of middle and upper-middle

class persons.

Years ago, when DUI was not regarded as, or at least

not judicially treated as, a ‘‘significant’’ offense, not much

widespread community concern about it existed. In time,

with a more vigorous enforcement of traffic laws and

increased penalties for DUI nationwide, persons other

than the ‘‘noisy and unruly’’ were arrested. It was only

then, in some jurisdictions, that middle and upper-middle

class defendants realized they had no right to a jury trial

because it was considered a petty offense. Then the de-

mands for jury trials began.

In 1985, through what was an attempt to eliminate

so-called duplicative statutes in Nevada, certain laws re-

lating to municipalities were repealed. The title of the

legislative enactment is: ‘‘AN ACT relating to municipal

courts; eliminating duplicative statutes; consolidating re-

lated provisions ; and providing other matters properly re-

lating thereto.’’ (Emphasis supplied.)

Among the repealed laws was a provision that pro-

hibited jury trials for petty offenses in specially chartered

municipalities, including Amicus and the City of North

Las Vegas. That same provision was not repealed in a

handful of municipalities that were not specially chartered.

The effect has been an incongruity that could suggest to

the careful observer that, while jury trials for misdemean-

— —- ~

4

ors are prohibited in some municipalities, they may be

permissible in others. Amicus suggests this anomoly was

the result of legislative oversight. The true intent of the

Nevada legislature is to prohibit jury trials in misde-

meanor cases.

The gravity of the offense of DUI is measured by the

punishment that may be imposed. This Court has held in

case after case that an offense punishable by not more than

six months’ incarceration is a petty offense. Although

most states provide jury trials for all misdemeanors, in-

eluding first-time DUI offenses, Nevada does not. Hence,

in Nevada and a minority of other states, persons who are

convicted of having committed petty offenses, including

the offense of DUT on the first occasion, are subject to

punishment of not more than six months’ incarceration

and a fine of $1,000.00. As a result, Nevada’s treatment

of such offenses is not violative of this Court’s rulings.

Nevada’s legislative determination and judicial disposi-

tion of first-offense DUI cases fall within the proper classi-

fication and the realm of permissible adjudication of DUI

offenses without jury trials.

The Nevada Supreme Court, in deciding that jury

trials are not required in DUI cases on the first occasion,

expressiy declined to follow a federal decision originating

in Nevada and in so doing was not acting judicially inap-

propriately.

Although many states limit the maximum fine for

petty offenses to $500.00, this figure is not axiomatically

the limit, and otherwise petty offenses (i.e., incarcerable

by not more than six months) are not deemed serious be-

cause of the potential of a higher fine.

ARGUMENT

I

Introduction and a Differing Point of View

Throughout this argument reference to a jury trial for

DUI means a jury trial for a first-time DUI offense, a

petty offense in Nevada.

Prior to the commencement of the somewhat recent

groundswell of national outrage about drunk driving, DUT

was likely not much of a concern to the citizen untouched

personally by the ravages of the offense. To most per-

sons, drunk driving was something that ‘‘noisy and un-

ruly’’ individuals indulged in.

As to the noisy and unruly, the consensus seemed to

hold chat there were no reputations to be tarnished or

community standing to be damaged. There were no ca-

reers to be ruined or little league teams to flounder be-

cause ‘‘Coach’’ was in jail. Often there were no insurance

policies to be canceled, let alone premiums to be increased.

And often as well there may not have been any

serious economic repercussions for there may not have

been any salaries to be lost or jobs to be terminated. Pub-

lic opprobrium was virtually nonexistent. Furthermore,

e.9., fifteen years ago, DUI not involving property dam-

age or personal injury was generally dealt with, if not by

the proverbial slap on the wrist, certainly less severely

than it is in the current decade.

Drinking and driving represents conduct that knows

no social bounds. (Perhaps it never did; but if so, that

fact was ‘‘discovered’’ only after the lense of public con-

cern was more sharply focused on persons charged with

DUT and the disposition of their cases.) Tt is indulged in

by the rich and the poor; the famous and the infamous;

the celebrated and the no.orious; the tall and the short; the

handsome and the homely, the fat and the lean; the young

and the old; male and female; white and black; and, in-

deed, the noisy and unruly,

As motorista, DUT is probably the single most likely

criminal offense with which otherwise law-abiding citizens

might be charged and to which they might suecumb, As

a result, DUI appears to be the one misdeamanor offense

about which the demand for jury trials is sounded moat

loudly,

In the several cases cited in this brief that discuss

DUI and jury trials as well as those cases cited by the

parties throughout the history of this case and in the opin-

ion of the Supreme Court of Nevada, there is virtually no

mention of why there is, all of a sudden, a demand for jury

trials, (Part of the reason, of course, is that most states

either by statute or by state constitution allow jury trials

for DUI and other petty offenses.) Bronson v, Swinney,

648 F.Supp. 1094 (D.Nev. 1986), comes closest when dis-

cussing the ‘‘collateral consequences doctrine.’’ Still that

decision does not mention what Amicus believes is the most

significant reason: DUI has become a middie and upper-

middle class problem,

Consider the following scenario: ‘‘Mr, Driver’’ is a

well-positioned, law-abiding citizen. He is an educated,

married breadwinner and father. He holds a seeere and

responsible job. He has standing in his community, in his

church, and in his local charitable or civie organization.

7

He has never been concerned about ‘jury rights.’’ He has

never had a need to be; he has never been arrested,

Then one night while driving home after an office

party, ‘‘Mr, Driver’? is stopped for weaving and is sub-

jected to the glare of the constable’s flashlight. He slur-

ringly explains his activities of the past few hours, He is

arrested and charged with DUI, Only later does he learn

there is no jury to whom he can plead, ‘ But for the Grace

of God, here you stand,.”’

Some may disagree with the foregoing analysis, which

is perhaps a differing point of view. But if a0, why then

is there rising from the ashes of discontent a phoenix of

‘‘eollateral consequences’? in DUT cases which this Court

is now being urged to consider in determining the differ-

ence between petty and serious criminal offenses? The

possibility of license revocation, insurance cancellation,

public opprobrium, the loss of employment, and financial

ruin have reached out and touched those least able to en-

dure the effects—the respectable.

Rhetorically, why is there not as much concern about

the ‘collateral consequences’’ that bear upon the lives of

persons who are, without benefit of jury, incarcerated for

up to a maximum of six months for offenses other than

DUI—*‘messier’’ offenses not committed by the respect-

able? Surely one is as likely to suffer several of the same

types of social disdain that is implicit in the ‘collateral

consequences’’ of DUI, Amicus believes the reason is in

part because the ‘‘Mr. Drivers’’ of the nation do not be-

come involved with ‘‘messier’’ offenses as do those noisy

and unruly persons for whom not even the concern for

primary consequences, let alone consequential conse-

quences, is felt by the public,

Be that as it may, what is being urged in this appeal

is an elimination of the one azimuth wisely triangulated

and clearly drawn upon which courts may rely to guide

themselves in determining, by constitutional standards,

when a jury trial is required on the petty/serious land.

scape of criminal conduct, Amicus does not believe it is

necessary to survey the same terrain again.

The Issues

1

The Nevada State Legislature Did Not Actually Intend

to the Statutory Provision (NRS 266.550) Prohib-

iting Jury Trials in Certain of Nevada's Municipal Courts.

NRS 266,005 provides:

The provisions of this chapter shall not be appli-

cable to incorporated cities in the State of Nevada

organized and existing under the sions of any

special legislative act or special r enacted or

granted pursuant to the provisions of section 1 of

article VITI of the constitution of the State of Nevada.

NRS 266.550 provides:

The municipal court shall have such powers and

jurisdiction in the city as are now provided by law for

justices’ courts, wherein any person or persons are

charged with the breach or violation of the provisions

of any ordinance of such city or of this chapter, of a

police or municipal nature; but the trial and proceed-

ings in such cases shall be summary and without a jury.

(Emphasis added.)

Amicus, as well as twelve other municipalities in Ne-

vada, derives its existence from a special charter. Origi-

nally, as to municipal courts, the provisions of chapter 266

of NRS as written did not apply to Amiens, However,

Amicus’ special charter provided that as to its municipal

courts chapter 266 did apply to it.

Tn 1985, in what was intended as a removal of certain

so-called duplicative statutes (‘AN ACT relating to

municipal courts; eliminating duplicative statutes; con-

solidating related provisions; and providing other matters

properly relating thereto."’ (Emphasis supplied.)) (See

App. ‘‘A’’, the Nevada State Legislature repealed from

the thirteen special charters those provisions incorporating

chapter 266 of NRS. In so doing, the Lewislature inad-

vertantly ignored the fact that, by virtue of NRS 266.005,

those provisions, and, specifically, the prohibition against

jury trials in municipal courts, were not ‘‘duplieated”’ else-

where in the special charters or in the Nevada Revised

Statutes.

As a result, the Legislature created an anomoly in the

municipal court system in Nevada, On the one hand, the

Legislature stripped the municipal courts of the thirteen

specially chartered municipalities of certain power, but

on the other hand left that power intact as to municipali-

ties not created by special charter, (As to Amicus, see,

1985 Nev. Stats. ch. 208, See, 12, App. ‘‘B’’.)

As to specially chartered municipalities, the only stat-

ute that now refers to the jurisdiction of municipal courts

is NRS 5.050, (See App. ‘*C’’) which is silent in respect to

jury trials. As to nonchartered municipalities, the provi-

sions of NRS 266.550 remain in effect. The nonchartered

municipalities are Ely, Fallon, Lovelock, (Mesquite), and

Winnemucea (See Blonton, supra, at 497, n.5), and jury

10

trials in municipal courts in those municipalities are pro-

hibited, Therefore, it is reasonable to assume and equally

reasonable to infer and conelude that the legislature did

not intend to remove the prohibition against jury trials

from municipalities, Through oversight, therefore, an at-

tempt to remove so-called duplicative statutes resulted in

neutering the municipal courts that derive their existence

from special charters,

It is submitted that while the Legislature intended to

eliminate duplicative statutes, it did not actually do so as

to NRS 266.550 because no duplication of it existed; cer-

tainly not as to Amicus. Among other things, the Legis-

lature removed from thirteen municipal courts the pro-

hibition against jury trials, but as to certain other munici-

palities, left it in, The apparently incongruous conse-

quence of what has happened is that in certain municipali-

ties in Nevada a person charged with DUT might be eligible

for a jury trial while in others that same person may not

have a jury trial,

For example, in traversing the state along Interstate

80 from the Utah border to the California border, ‘Mr.

Driver,’’ if he were arrested for DUI in Wells, Elko or

Carlin, would be entitled to a jury trial; while in Winne-

muca or Lovelock, he would not be entitled to a jury trial;

and in Sparks or Reno he would be entitled to a jury trial

if 1985 Nev. Stats, ch. 208 were interpreted literally, Cer-

tainly this could not be the result that was intended by the

Legislature.

Therefore, it is respectfully submitted that the legis-

lative intent and the law of the State of Nevada continue

to deny jury trials in municipal courts, even those in

municipalities in which the prohibition against jury trials

has, on the surface, been eliminated.

I

There is No Right to a Jury Trial for a Misdemeanor DUI

Offense in Nevada Where the Maximum Authorized Pen.

a Jail Term of Six Months and a Fine of One

Thousand Dollars,

Amicus, for the sake of brevity will forego extensive

reference and quotations in the “petty/serious offense

dichotomy” in deference to the Court's knowledge its own

decisions and with the assumption that the same deei-

sions will be referred to extensively by the parties to this

appeal, Amicus recognizes that synopses of decisions may

appear to omit much, depending on one’s point of view,

and does not want this appearance to minimize the serious.

ness with which Amicus views this task. However, this

approach is being undertaken in the interest of appellate

economy.

One hundred years ago this Court, in Callan v, Wilson,

127 U.S. 540 (1888), decided that the language of the

United States Constitution was to be construed in light of

the period of time in which it was written, Therefore, this

Court held that the right to a jury trial was not intended to

| apply to crimes which were petty offenses at common law,

This Court has followed this distinction in many cases

since Callan. Natal v, Louisiana, 1389 U.S, 621 (1891);

Schick v, Uniied States, 195 U.S. 65 (1904); District of

Columbia v, Clawans, 300 U.S, 617 (1987); Cheff »v.

Schnackenberg, 384 U.S, 373 (1966),

Of more recent date, several significant cases have

embraced the common law criterion.

Duncan v, Lowisiana, 391 U.S. 145 (1968), decided

that the Sixth Amendment to the United States Consti-

12

tution applied to the states by virtue of the Fourteenth

Amendment. Dunean was charged in state court with

simple battery. The maximum penalty consisted of a fine

of not more than $300.00 or incarceration for not more

than two years, A crime punishable by ineareeration for

up to six months does not require a jury trial; but one

carrying possible incarceration of up to two years was

serious and hence a jury trial was required, The Court

looked at what punishment could be imposed, not at what

was imposed,

This “possible sentence” concept was carried for-

ward in Frank v, United States, 395 U.S, 147 (1969), which

was a criminal contempt case, This Court held that the

Sixth Amendment to the United States Constitution gives

defendants a right to a jury trial in all eriminal cases,

that criminal contempt was to be treated like all other

criminal offenses, and that a defendant would be entitled

to a jury trial unless the offense were classified as petty.

The Court looked to District of Columbia v, Clawans, su-

pra, in determining whether a crime was serious or petty.

The Court held that that determination was to be based

on the seriousness of the authorized penalty. Maximum

penalties of not more than six months’ incarceration were

considered petty, and petty offenses need not be tried

by a jury.

In Baldwin v. New York, 399 U.S. 66 (1970), the de-

fendant was charsed with a New York City misdemeanor

called “jostling,” the maximum term of imprisonment for

which was one year. By statute, however, he was not

entitled to a jury trial. Again this Court held that serious

crimes require a trial by jury; petty offenses do not, Petty

offenses were those for which possible incarceration was

13

not more than six months, and serious offenses were those

with a possible sentence of more than six months. The

potential penalty for the offense was taken to be the only

objective criterion by which to judge its gravity.

Codispoti v. Pennsylvania, 418 U.S. 506 (1974), is a

case in which punishment for contempt in a state court

proceeding was at issue. Two defendants were sentenced

to aggregate consecutive terms of eleven to twenty-two

years and six to twelve years respectively. Although no

single contempt charge was punished by more than six

months’ incarceration, the defendants were entitled to a

jury trial nonetheless because theirs were serious offenses

involving incarceration for a total of more than six months.

Two recent conflicting but significant lower court de-

cisions provide contemporary points of view of the ‘‘pet-

ty/serious’’ DUI dichotomy. They are Bronson v. Swin-

ney, supra, and Landry v. Hoepfner, 840 F.2d 1201 (5th

Cir. 1987).

The federal district court in Bronson v. Swinney,

supra, in referring to the Nevada Supreme Court’s opinion

in State v. Smith, 99 Nev. 806, 672 P.2d 631 (1983), which

interpreted the six-month, thousand-dollar threshold as

proper for jury trials in Nevada, criticized the opinion as

**too restrictive.’’ This Court is urged to consider that

in State v. Smith, supra, the Nevaca Supreme Court re-

lied upon the criterion of the maxisnum possible penalty

in its characterization of DUI as a petty offense.

. . » [W]e look to the criterion expressly estab-

lished by the United States Supreme Court: where

the maximum possible penalty is six months impris-

onment or less, the offense is petty and the right to

14

trial by jury does not attach. [Since] NRS 484.379

provides a penalty of up to six months imprisonment

for a first-time DUI offense, there is no constitu-

tional right to a trial by jury. Smith, supra, at 810,

672 P.2d at 634.

The federal district court in Bronson v. Swinney,

supra, in its criticism considered the ‘‘collateral conse-

quences doctrine’? as the more reasonable standard by

which to determine the seriousness of an offense, notwith-

standing its concession that the maximum authorized pen-

alty was the most important criterion by which to do so.

In support of its ‘‘collateral consequences doctrine,’’

the federal district court in Bronson v. Swinney, supra,

quotes United States v. Craner, 652 F.2d 23 (9th Cir. 1981).

‘‘ Although Congress has established the sanctions

of six months’ imprisonment or $500 in fines as the

bright line between serious and petty offenses, see

18 U.S.C. [See.] 1(3), the Supreme Court has not

found ‘talismanic significance’ in this formula when

determining whether a constitutional right to a jury

trial exists.’’ (Quotation marks, sic.)

Although the six-month threshold is not talismanic,

neither is the loss of a driver’s license, the cancellation of

automobile insurance, the likely loss of a job (even if in-

earceration is as ‘‘little’’ as 30, 60, or 90 days), or public

opprobrium. True, these factors are not to be viewed

lightly, for hardly any ‘‘Mr. Driver’’ short on Spartan

vigor could withstand the full impact of any one let alone

all of these consequences. But that unfortunately is be-

side the point.

An opposite conclusion was reached by the United

States Court of Appeals, Fifth Circuit, in affirming Lan-

ot

dry v. Hoepfner, 840 F.2d 1169 (5th Cir. 1987), which was

similar to the instant case in that defendant Landry

wanted a jury trial for a first-time DUI offense in which

the maximum authorized penalty was a fine of $500.00 and

a sentence of six months incarceration.

After discussing, Duncan, Frank, Baldwin, and Codi-

spots the court of appeals in referring to this Court said at

1209, ‘‘.. . [this] Court has never held or stated any crime

is a ‘serious’ rather than a ‘petty’ offense on the basis of

any criteria other than whether its maximum authorized

confinement exceeded six months or whether it was in-

dictable at common law.’’ (Emphasis in original.)

Later, at 1216, in discussing the ‘‘collateral conse-

quences’’ of a conviction for DUT, although that term was

not specifically used, the court of appeals said, ‘‘We know

of no basis or standard by which we can say that such

repercussions and opprobium [sic] resulting from a [DUT]

conviction are as a matter of law different in kind from

those resulting from confinement for conviction of nu-

merous other concededly petty offenses, such as public

drunkenness.’’ (Emphasis in original.)

This Court in Baldwin v. New York, supra, set forth

the criterion by which petty and serious misdemeanants

shall be judged. The issue is simple: If the possibility of

incarceration is not more than six months, a defendant is

not entitled to a jury trial; if the possible period of in-

carceration exceeds six months, a jury trial is required.

The unavailability of jury trials in Nevada for first-time

DUI offenders is within the guidelines laid down by this

Court. The issue becomes awkward only when it is ‘‘dec-

orated’’ with the ornaments of ‘‘collateral consequences.”’

16

Finally, in certain opinions and briefs connected with

this case, there have appeared recitations of statistics con-

cerning the number of jurisdictions that allow DUI jury

trials and those that do not (e.g., ef. Petitioners’ brief,

Appendix ‘‘A’’). However, this apparent ‘‘weight’’ of

authority results not from the fact that those jurisdictions

regard DUI as a special (‘‘serious’’) type of misdemeanor

but from the fact that, in those jurisdictions, all misde-

meanants are afforded jury trials. The weight of num-

bers does not tip the balance as persuasively as the weight

of reason, deliberation and precedent.

In this respect the Court’s attention is invited to Mar-

tin v. Ohio, 480 U.S. — (1987). In that case, a woman

shot and killed her husband and claimed self defense. In

Ohio a defendant has the burden of proving self defense.

In addressing the issue of ‘‘majority practice,’’ the Court

said,

. .. [Well into this century, a number of States fol-

lowed the common law rule and required a defendant

to shoulder the burden of proving that he acted in

self-defense. (Citation omitted.) We are aware that

all but two of the States, Ohio and South Carolina,

have abandoned the common law rule and require the

prosecution to prove the absence of self-defense when

it is properly raised by the defendant. But the ques-

tion remains whether those States are in violation of

the Constitution; and, as we observed in Patterson,

that question is not answered by cataloging the prac-

tices of other states. We are no more convinced that

the Ohio practice of requiring self-defense to be

proved by the defendant is unconstitutional than we

are that the Constitution requires the prosecution to

prove the sanity of a defendant who pleads not guilty

by reason of insanity.

17

A Fine Which Exceeds the $500.00 Threshold Does Not

Make an Otherwise Petty Offense Serious.

Although ‘‘a sentence and a fine’’ have always been

considered together in addressing the ‘‘petty/serious of-

fense dichotomy,’’ the severity of a potential fine has not

figured as significantly in the Court’s decisions as has

the length of the permissible sentence.

Amicus does not wish to add weight to this question

and merely invites the Court’s attention to its decision in

Muniz v. Hoffman, 422 U.S. 454 (1975), and to 18 USC

Sec. 1(3) which was amended by Congress in 1984 by in-

creasing the fine for petty offenses to $5,000.00 from

$500.00.

IV

The Supreme Court of the State of Nevada Acted Prop-

erly in Refusing to Follow a Federal District Court’s

Ruling.

Amicus believes the position the Nevada Supreme

Court took Blanton v. North Las Vegas Municipal Court,

supra, in not following Bronson v. Swinney, supra, is

correct.

This is not a new or novel attitude in Nevada. ‘‘We

are bound by the decisions of the United States Supreme

Court (Nevada Constitution, Article I, Sec. 2.). We are

not bound by the decisions of the other federal courts.’’

Bargas v. Warden, 87 Nev. 30, 32; 482 P.2d 317 (1971).

Nor is it an attitude unique to Nevada. See People

v. Luros, 480 P.2d 633, 92 Cal Rptr. 833 (1971). (Federil

courts are not ‘‘compelling authority’’ as to state action.) ;

18

State v. Harmon, 107 Idaho 73, 685 P.2d 814 (1984). (Idaho

might defer to federal district court decisions, but it was

not bound by them.)

On the other hand, Nevada is not intransigent in its

attitude. See Rahn v. Warden, 88 Nev. 429, 498 P.2d 1344

(1972) in which the Nevada Supreme Court acquiesced in

decisions of the Ninth Circuit Court of Appeals.

It is respectfully submitted the Nevada Supreme

Court is not bound by, and need not blindly follow, the

federal district court. In Blanton v. North Las Vegas

Municipal Court, supra, it chose not to, and that decision

for the reasons set forth by that court it is submitted is

one to be respected by this Court.

’..

_

CONCLUSION

For the reasons set forth above, Amicus respectfully

prays that this Court concur with the decision of the Ne-

vada Supreme Court in denying jury trials to first-time

DUI offenders in the State of Nevada.

Respectfully submitted,

Georce F’. Ocr.vre

City Attorney

City of Las Vegas, Nevada

400 East Stewart Ave., # 906

Las Vegas, NV 89101

702/386-6201

Attorney for Amicus Curiae

City of Las Vegas, Nevada

App. 1

APPENDIX ‘‘A’’

Assembly Bill No. 202—Committee on Judiciary

CHAPTER 208

AN ACT relating to municipal courts; eliminating dupli-

cative statutes; consolidating related provisions; and pro-

viding other matters properly relating thereto.

[Approved May 17, 1985]

THE PEOPLE OF THE STATE OF NEVADA,

REPRESENTED IN SENATE AND ASSEMBLY

DO ENACT AS FOLLOWS:

Section 1. NRS 5.010 as hereby amended to read as

follows:

5.010 [A] There must be in each city a municipal

court presided over by a municipal judge. The municipal

court must be held [by a judge who is designated as mu-

nicipal judge, and the court must be held] at such place

in the city within which it is established as the governing

body of that city may by ordinance direct.

Sec. 2. NRS 5.020 is hereby amended to read as

follows:

5.020 1. Except as provided in subsection 2, each

municipal judge must be chosen by the electors of the city

within which the municipal court is established.on a day

to be fixed by the governing body of that city. He shall

hold his office for 1 year, unless a longer period is fixed

by the charter of the city, in which case he shall hold his

office for that longer period. Before entering upon * * *

App. 2

APPENDIX ‘‘B”’

See. 12. Section 4,010 of the charter of the City of

Las Vegas, being chapter 517, Statutes of Nevada 1983,

at page 1412, is hereby amended to read as follows:

See, 4.010 Municipal court,

1, There is a municipal court of the city which con-

sists of at least two departments, [,each of which must

be presided over by a municipal judge and has such

power and jurisdiction as is prescribed in, and is, in

all respects which are not inconsistent with this char-

ter, governed by, chapters 5 and 266 of NRS which

relate to municipal courts. |

2. The city council may from time to time estab-

lish additional departments of the municipal court and

shall appoint an additional municipal judge for each,

8. At the first general election which follows ethe

appointment of an additional municipal judge to a

newly created department of the municipal court, the

successor to that municipal judge must be elected for

a term of 2 or 4 years, as determined by the city coun-

cil, in order to effectuate the intent of this provision

that, as nearly as practicable, one-half of the number

of municipal judges be elected every 2 years.

4. The respective departments of the municipal

court must be numbered 1 through the appropriate

arabic number, as additional departments are ap-

proved by the city council, A municipal judge must

be elected for each department by number,

App. 3

APPENDIX ‘‘0"’

5.050 Jurisdiction.

1. Municipal courts have jurisdiction of civil actions

or proceedings :

(a) For the violation of any ordinance of their re-

spective cities,

(b) To prevent or abate a nuisance within the limits

of their respective cities,

2. The municipal courts have jurisdiction of all mis-

demeanors committed in violation of the ordinances of

their respective cities.

3. The municipal courts have jurisdiction of:

(a) Any action for the collection of taxes or assess-

ments levied for city purposes, when the principal sum

thereof does not exceed $2,500,

(b) Actions to foreclose liens in the name of the city

for the nonpayment of those taxes or assessments when

the principal sum claimed does not exceed $2,500,

(ec) Actions for the breach of any bond given by any

officer or person to or for the use or benefit of the city,

and of any action for damages to which the city is a party,

and upon all forfeited recognizances given to or for the

use or benefit of the city, and upon all bonds given on

appeals from the municipal court in any of the cases named

in this section, when the principal sum claimed does not

exceed $2,500,

(d) Actions for the recovery of personal property

belonging to the city, when the value thereof does not ex-

ceed $2,500,

App. 4

(e) Actions by the city for the collection of any dam-

ages, debts or other obligations when the amount claimed,

exclusive of costs or attorney's fees, or both if allowed,

does not exceed $2,500,

4. Nothing contained in subsection 3 gives the mu-

nicipal court jurisdiction to determine any such cause

when it appears by the pleadings of the verified answer

that the validity of any tax, assessment or levy, or title

to real property, is necessarily an issue in the cause, in

which case the court shall certify the cause to the district

court in like manner and with the same effect as provided

by law for certification of causes by justices’ courts.

[33 :19:1865; B § 938; BH § 2452; C 4 2533; RL § 4853;

NCL § 8395) + [34:19:1865; B § 939; BH § 2453; C § 2534;

RL § 4854; NCL § 8396)—(NRS A 1959, 853; 1981, 652,

1928 ; 1985, 129, 671)