Opposition Brief — Bishop v. Nebraska

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OQ?

OCT 14

No. 87-145

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Supreme Court of the United States

ON PETITION FOR WRIT OF CERTIORARI

STATE OF NEBRASKA IN OPPOSITION

sw ee

In The

October Term, 1987

ral

Vv

ARCHIE M. BISHOP,

Petitioner,

VS.

STATE OF NEBRASKA,

Respondent.

fay

Vv

TO THE SUPREME COURT OF

THE STATE OF NEBRASKA

Oo-———

BRIEF OF RESPONDENT

oO

Rosert M. Serre

Attorney General

JaNrE C, CASTANEDA

Assistant Attorney General

2115 State Capitol

Lincoln, NE 68509

Tel: (402) 471-2682

Attorneys for Respondent

COCKLE LAW BRIEF PRINTING CO.. (800) 225-6964

or cail collect (402) 342-2831

_- Bupreme Court, US

EIR BD

JOSEPH F, SPANIC

8

L, JR.

QUESTION PRESENTED

Whether the Nebraska Supreme Court properly re-

versed and remanded for a new trial the decision of the

lower court denying the petitioner a right to a jury trial

on a misdemeanor offense carrying a maximum penalty

of more than six months while, simultaneously, affirming

the lower court’s decision denying the defendant a right

to a jury trial on two petty offenses carrying a maximum

penalty of seven days each.

il

TABLE OF CONTENTS

Page

CURSTION PRETO nuncio i

TABLE OF CONTENTS ii

TABLE OF AUTHORITIES iii

BRIEF OF RESPONDENT STATE OF NEBRAS-

RA IN OP PUR sci i re

OPINION BELOW ......

STATEMENT OF JURISDICTION

CONSTITUTIONAL PROVISIONS one ceeeesseneee

STATEMENT OF THE CASE

REASONS WHY THE PETITION SHOULD BE

fi] | | | Snninemmemece Se dy.

1. The theory or position by petitioner is con-

trary to that asserted by petitioner in the

court below. . een

2. Conflicts presented by petitioner are easily

distinguishable on their facts.

CONCLUSION

12

- —

ill

TABLE OF AUTHORITIES

Page

FreperAL AUTHORITIES

Article V, United States Constitution 000000 3, 5

Article VI, United States Constitution 20000. 2, 3, 5, 6, 10

Article XIV, United States Constitution WW... 2, 3, 5, 10

Casrs CiTED

Baldwin v. New York, 399 U.S. 66 (1970) 00000... 7, 8, 10

Bowe ¥. Seott, Zao U.S. 656 (1914) 7

Haar v. Hanrahan, 708 F.2d 1547 (10th Cir. 1983) ..8, 9, 11

Oxley Stave Co. v. Butler County, 166 U.S. 648

SING AE ae i Sa 6

Patton v. United States, 281 U.S. 276 (1930) 0. 8

Tyrrell v. District of Columbia, 243 U.S. 1 (1917) ........ 6, 7

United States v. Potvin, 481 F.2d 380 (10th Cir.

Neen cco ctnsoesnsaseinn inne 8, 9, 11

State AUTHORITIES

Article I, Section 1, Nebraska Constitution 20000000... 3,5

Article I, Section 3, Nebraska Constitution 000000000... 3

Article I, Section 6, Nebraska Constitution .................. 3, 5

Neb.Rev.Stat. § 24-536 (Reissue 1985) 20... 2, 3,4,5,8

Neb.Rev.Stat. § 39-669.07 (Reissue 1984) 200. +

Neb.Rev.Stat. § 39-669.08 (Reissue 1984) 20004

Cases CITED

State v. Bishop, 224 Neb. 523, 399 N.W.2d 271

a cand aecausinintiponsacnrsi 8, 9,10, 11

State v. Vernon, 218 Neb. 539, 356 N.W.2d 887 (1984) 8, 10

Vallejos v. Barnhart, 102 N.M. 438, 697 P.2d 121

CRE SE on eS 9,11

BRIEF OF RESPONDENT .

STATE OF NEBRASKA IN OPPOSITION

Respondent, State of Nebraska, respectfully requests

this Court to deny the petition for a writ of certiorari to

review the judgment of the Nebraska Supreme Court.

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Vv

OPINION BELOW

The relevant opinion of the Nebraska Supreme Court

appears in the appendix of the Petition for Writ of Cer-

tiorari.

co)

STATEMENT OF JURISDICTION

The judgment of the Nebraska Supreme Court was

entered on January 16, 1987, affirming as modified the

decision of Red Willow County Court on Count I, driving

while intoxicated; affirming the decision of Red Willow

County Court on Count II, criminal refusal; and revers-

ing and remanding the decision of Red Willow County

Court on Count III, resisting arrest. The petitioner did

not properly raise and the Supreme Court of Nebraska

did not enter a judgment on the particular federal ques-

tion the petitioner now attempts to assert. The judgment

of the Nebraska Supreme Court was based on Nebraska

law and past decisions of this Court. Therefore, this

Court should not take jurisdiction of a federal question

not properly raised in the Nebraska Supreme Court.

°

2

STATUTES OR CONSTITUTIONAL PROVISIONS

1. Sixth Amendment to the United States Constitu-

tion:

In all criminal prosecutions the accused shall en-

joy the right to a speedy and public trial, by an

impartial jury of the State and District wherein

the crime shall have been committed... .

2. Fourteenth Amendment to the United States Con-

stitution, Section 1:

[NJor shall any State deprive any person of life,

liberty, or property without due process of law.

3. Neb.Rev.Stat. § 24-536:

Kither party to any case in county court, except

criminal cases arising under city or village or-

dinance, traffic infractions ...may demand a jury

trial.

°

STATEMENT OF THE CASE

On December 31, 1984, the petitioner was charged

with driving while under the influence (Count I), refusing

a chemical test (Count II), resisting arrest (Count III),

and leaving the scene of a property damage accident

(Count IV). On January 17, 1985, the petitioner was ar-

raigned and pled not guilty to all four counts.

On February 6, 1985, the petitioner filed a motion

requesting a jury trial on all counts. This motion was

overruled by the county court for failure to comply with

the rules of the County Court of the 14th Judicial Dis-

trict of Nebraska (rev. 1984). Rule 25 provides that all

demands for a jury trial in misdemeanor cases must be

made within ten days following the entry of a plea of not

guilty.

On April 25, 1985, the petitioner renewed his motion

for a jury trial and contended that the county court’s rul-

ing denying him a jury trial was in violation of Neb.Rev.

Stat. § 24-536 (Reissue 1985); Section 3 and Section 6,

Article I, of the Nebraska Constitution; and Articles V,

VI, and XIV to the Constitution of the United States.

Neb.Rev.Stat. § 24-536 provides: Either party to any

case in county court, except criminal cases arising under

city or village ordinance, traffic infractions, and other

infractions, ... may demand a jury trial.’’

On April 25, 1985, the county court denied the defen-

dant’s motion for a jury trial and found the petitioner

guilty of Count I, driving while intoxicated; Count II,

refusal to submit to a chemical test; and Count III, re-

sisting arrest. The county court found the petitioner not

guilty of leaving the scene of a property damage accident.

The District Court of Red Willow County affirmed

the decision of the lower court.

On appeal to the Nebraska Supreme Court, the peti-

tioner sought review on various issues, one of which was

whether the petitioner had a right to a jury trial on each

count charged. The petitioner argued that he had a Sixth

and Fourteenth Amendment right to a jury trial on the

resisting arrest charge because it carried a potential pen-

alty of over six months. He further alleged that he had

a right to a jury trial on the driving while under the in-

fluence charge and the criminal refusal charge pursuant to

Neb.Rev.Stat. § 24-536 (Reissue 1985). He contended that

such demand for a jury trial need not be made in writing

within ten days pursuant to Rule 25 of the 14th Judicial

District of Nebraska. Petitioner further noted that such

rule was not valid because it was not properly ratified.

The Nebraska Supreme Court found that because the

petitioner was charged with driving while under the influ-

ence, pursuant to Neb.Rev.Stat. § 39-669.07 (Reissue 1984),

and refusal to take a chemical test, pursuant to Neb.Rev.

Stat. § 39-669.08 (Reissue 1984), he had a right under Neb.

Rev.Stat. § 24-536 (Reissue 1985) to demand a jury trial.

The court further found that a demand is required to in-

voke the statutory right to a jury trial and failure to file

a timely request in accordance with the rules of the court

constituted a waiver of the statutory right to a jury trial.

The Nebraska Supreme Court further found that the

petitioner had a constitutional right to a jury trial on the

resisting arrest charge because it carried a potential pen-

alty of over six months and it was not knowingly and in-

telligently waived by the petitioner. The court thus re-

versed and remanded for a new trial the conviction of the

petitioner on the resisting arrest charge.

The Nebraska Supreme Court affirmed the sentence

and modified the fine to $200 in the driving while under

the influence conviction and affirmed the conviction on

criminal refusal.

On a motion for rehearing, the petitioner asked the

Nebraska Supreme Court to review its decision. Such

motion raised for the first time the issue that the Ne-

braska Supreme Court should have reversed the county

Ls |

court on all three counts because the aggregate potential

penalty on the three charges was over six months. On

June 3, 1987, the court denied the motion without opinion.

°

REASONS WHY THE PETITION

SHOULD BE DENIED

1. The theory or position asserted by petitioner is con-

trary to that asserted by petitioner in the court below.

The question presented to this court by the petitioner

is certainly not the question that was presented to the

Nebraska Supreme Court. The petitioner in the trial

court, the district court and the Nebraska Supreme Court

asserted, among various other issues, the position that

the petitioner was entitled to a jury trial on each of the

three charges against the petitioner. The petitioner argued

his right to a jury trial on each of these charges pursuant

to Neb.Rev.Stat. § 24-536 (Reissue 1984); as well as See-

tion 1 and Section 6, Article 1 of the Constitution of the

State of Nebraska and the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution.

The petitioner now asserts that the Sixth and Four-

teenth Amendments entitled the petitioner to a jury trial

because the aggregation of the penalties of the three

charges initially faced by the petitioner totaled more than

a six month potential penalty. Thus, the petitioner now

argues he had a constitutional right to a jury trial re-

gardless of Nebraska statutory rules and county court

rules. This particular facet of petitioner’s right to a jury

trial was never before the court until the petitioner filed

a motion for rehearing before the Nebraska Supreme Court

on January 21, 1987. The court denied this motion without

an opinion on June 3, 1987. Certainly, at the rehearing

stage it was too late for the petitioner to assert that his

Sixth Amendment right also attached to the two petty

offenses by virtue of the aggregated potential penalty of

all three offenses being more than six months.

Furthermore, this court may review the final decision

of the highest state only if the aggrieved party is ‘‘de-

nied some title, right, privilege, or immunity ... [and]

it appear[s] from the record that such title, right, priv-

ilege or immunity was specially set up or claimed in the

highest state court as belonging to such party under the

Constitution or some treaty, statute, or commission or

authority of the United States.’? Oxley Stave Co. v. But-

ler County, 166 U.S. 648, 653 (1897).

The fact that the Petitioners alleged a violation

of their federal or constitutional rights is not suf-

ficient. The federal question must be presented in

the proper manner to the highest state court and it

must appear that judgment was passed on the federal

question. Harding v. Illinois, 196 U.S. 78, 86 (1904).

A ‘‘vague objection’’ referring to the United States

Constitution is not sufficient without any argument

or authority in support of the objection. Harding, 196

‘USS. at 88.

In Tyrrell v. District of Columbia, 243 U.S. 1 (1917)

this court stated, ‘‘When ... we discover that the ques-

tion upon which the certiorari was prayed under the cir-

cumstances previously stated does not arise on the record

[it] is not open for consideration, and therefore the Pe-

tition for Certiorari [is] rested upon a wholly unsubstan-

tial and nonexisting ground.’’ Jd. at 243.

The court in Tyrell dismissed the writ because peti-

tioner did not make an exception in the lower court to the

question it raised in their Petition for Writ of Certiorari.

Therefore, the question did not properly appear in the

record and, thus, could not be considered.

Moreover, in Bowe v. Scott, 233 U.S. 658 (1914) this

court stated:

[I]t is elementary that a mere assertion in a state

court of a right under the Constitution of the United

States in a petition for rehearing affords no ground

for invoking the jurisdiction of this court unless the

court below, in dealing with the petition for rehear-

ing, considers and passes upon the Federal ground

therein relied upon, we dismiss that subject from view

and come to consider whether the record otherwise

discloses that a Federal question was so raised below

as to support our jurisdiction.

Id. at 663.

In the case at bar, the petitioner’s current theory was

presented to the Nebraska Supreme Court only as an

afterthought in a motion for rehearing after the Ne-

braska Supreme Court had already issued its opinion.

The Nebraska Supreme Court decided the question

of whether the petitioner was entitled to a jury trial on

each separate offense pursuant to Nebraska statutory

law and constitutional law. Following these guidelines

the Nebraska Supreme Court correctly ruled that on the

offense of resisting arrest the petitioner had a Sixth

Amendment right to a jury trial because this offense car-

ried a maximum penalty in excess of six months imprison-

ment. Baldwin v. New York, 399 U.S, 66 (1970). The court

further noted that this right to a jury tria! could be waived

8

by the petitioner if it was voluntarily, expressly and in-

telligently waived. State v. Bishop, 224 Neb. 523, 528, 399.

N.W.2d 271, 276 (1987); Patton v. United States, 281 U.S.

276 (1930). The Nebraska Supreme Court then correctly

concluded that the petitioner had not waived his right to

a jury trial on the misdemeanor of resisting arrest and

reversed the decision of the lower court on this offense.

Clearly, the two petty offenses which carried maxi-

mum penalties of seven days would not entitle the peti-

tioner to a Sixth Amendment right to a jury trial. See,

Baldwin v. New York. Though Neb.Rev.Stat. § 24-536

(Reissue 1985) does provide a jury trial for cases arising

in county court, this right must be properly demanded to

be invoked. State v. Vernon, 218 Neb. 539, 356 N.W.2d

887 (1984). The Bishop court ruled that the petitioner

waived this statutory right to a jury trial by not demand-

ing it timely pursuant to local court rules.

The respondent contends that the Nebraska Supreme

Court reached the proper decision. The position now be-

ing asserted by the petitioner was not properly before the

Nebraska Supreme Court. Therefore, the Nebraska Su-

preme Court did not have an opportunity to pass upon

this particular question. The Nebraska Supreme Court,

as a matter of comity, should have had a real opportunity

to properly pass on the question. Because petitioner failed

to provide the Nebraska Supreme Court with such an op-

portunity, this Court ought not to grant the Petition for

Writ of Certiorari.

2. Conflicts presented by petitioner are easily distin-

guishable on their facts.

The petitioner asserts that the decisions of the Tenth

Circuit in United States v. Potvin, 481 F.2d 380 (10th Cir.

1973), Haar v. Hanrahan, 708 F.2d 1547 (10th Cir. 1983),

and the decision of the New Mexico Supreme Court in Val-

lejos v. Barnhart, 102 N.M. 438, 697 P.2d 121 (1985), are

contrary to the decision of the Nebraska Supreme Court

in Bishop. The two cases in the Tenth Circuit, Potvin and

Haar, and the Vallejos case in New Mexico are easily dis-

tinguishable from the present case on their facts.

In both Potvin and Haar, the defendants were charged

with two petty offenses wherein the cumulated penalty

exceeded six months. The defendants conceded that a per-

son charged with a petty offense has no constitutional

right to a trial by jury. The court held that a person

charged with two or more petty offenses arising out of the

same act, transaction, or occurrence is entitled to a jury

trial if he is actually threatened at the commencement of

trial with an aggregate potential penalty of greater than

six months imprisonment.

In Vallejos, the defendants petitioned the New Mex-

ico Supreme Court for a writ of prohibition against vari-

ous metropolitan court judges to curtail bench trials and

require a jury trial in multiple offense cases for which,

upon conviction, aggregate sentences could equal or ex-

ceed 180 days. The court held that though there was no

right to a jury trial in petty offenses the right did attach

if the cumulative penalty was greater than 180 days or

more on combined charges of first offense traffic viola-

tions and one or more additional petty misdemeanors

earrving penalties of up to 90 days.

In Bishop, the defendant was charged with two petty

offenses carrying a penalty of seven days imprisonment

10

each, and a misdemeanor, carrying a maximum penalty

of one year imprisonment. The trial court and the dis-

trict court both refused to grant the defendant a jury

trial on any of the offenses upon which he was charged

because of petitioner’s failure to demand a jury trial in

accordance with local rules. The two petty offenses stat-

utorily gave the petitioner a right to a jury trial. But,

note, that such right, because it is statutorily given, must

be demanded according to local rules or it is deemed

waived. Vernon, 218 Neb. at 541. The offense of resist-

ing arrest, because it imposed a sentence greater than six

months, constitutionally gave the petitioner a jury trial

through the Sixth and Fourteenth Amendment. State v.

Baldwin, supra.

On the one hand, the Nebraska Supreme Court rec-

ognized that the lower courts had erred in not giving the

petitioner a jury trial on the charge with a potential pen-

alty greater than six months. Bishop, 224 Neb. at 528. The

Nebraska Supreme Court reversed and remanded the lower

court’s decision. On the other hand, the Nebraska Sua-

preme Court held that the two petty offenses only gave

the petitioner a statutory right to jury trial. If not de-

manded properly, that right to jury trial was waived.

Vernon, 218 Neb. at 539. Accordingly, the Nebraska Su-

preme Court affirmed the lower court’s decision on these

two petty counts because the petitioner did not properly

demand his statutory right to a jury trial.

The situation that faced the New Mexico Supreme

Court and the Tenth Circuit Court of Appeals was not the

same situation that faced the Nebraska Supreme Court.

Bishop is distinguishable on its facts. Respondent in mak-

11

ing this contention to this Court does not concede that the

decisions of the Tenth Circuit Court of Appeals and the

New Mexico Supreme Court are correct. Rather, the re-

spondent merely contends that Bishop is distinguishable

from the above noted cases depended on for support by

the petitioner for his writ of certiorari. Thus, this case

is inappropriate on its facts to resolve the issue of wheth-

er aggregated penalties for petty offenses require a jury

trial, since the aggregated petty offense penalties here

do not exceed six months.

In Potvin, Haar, and Vallejos, the defendants were

charged with multiple petty offenses. Each separate of-

fense had a potential penalty of less than six months. None

of the offenses standing alone entitled the defendants to

a constitutional right to a jury trial.

In contrast, in Bishop the petitioner was charged with

two petty offenses and a misdemeanor. Since the potential

penalty for the misdemeanor was over six months, the pe-

titioner had a constitutional right to a jury trial and the

Nebraska Supreme Court properly reversed the lower

court’s decision.

Therefore, following the reasoning in Potvin, Haar,

and Vallejos, the petitioner could only get a jury trial on

the two remaining petty offenses if the aggregated po-

tential penalty was over six months. The aggregated po-

tential penalty of the two petty offenses in the instant

ease would be 14 days. Under these facts, even in Potvin,

Haar, and Vallejos, the petitioner would not be entitled

to a jury trial.

Oo

For the foregoing reasons, the petition for writ of

12

CONCLUSION

certiorari should be denied.

Respectfully submitted,

STATE OF NEBRASKA,

Respondent,

: Ropert M. Spree, #13977

Attorney General

JaNIE C. CasTANEDA, £17658

Assistant Attorney General

2115 State Capitol

Lincoln, NE 68509-4906

Tel: (402) 471-2682

Attorneys for Respondent

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