Petition for Writ of Certiorari — Arizona ex rel. Dean v. City Court of Tucson

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89-1099. I ov 20 mt |

NO. —

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1989

State of Arizona, Petitioner v. City Court

of the City of Tucson, the Honorable Carmen

Dolny, a Magistrate thereof; Superior Court

of the State of Arizona, County of Pima,

the Honorable John Hawkins, a Judge

thereof, Arizona Suprene Court,

Respondents, and Timothy Haring, Real Party

in Interest,

and

State of Arizona, Petitioner v. City Court

of the City of Tucson, the Honorable

Margarita Bernal, a Magistrate thereof;

Superior Court of the State of Arizona,

County of Pima, the Honorable Thomas

Meehan, a Judge thereof, Arizona Supreme

Court, Respondents, and Marvin Littles,

Real Party in Interest.

ON APPEAL FROM THE SUPREME COURT OF ARIZONA

PETITION FOR WRIT OF CERTIORARI

FREDERICK S. DEAN*®#

CITY ATTORNEY

R. William Call

Deputy City Attorney

P.O. Box 27210

Tucson, AZ 85726-7210

Tel: (602) 791-4104

Attorneys for Petitioner

*Counsel of Record

se ee HE HH HSH HBP He eRe HEHE HH He ee SB ee HR ew & GF fF

oie (i) The questions presented for

review are: |

(1) Whether a defendant

criminally charged with unlawful possession

of marijuana, a class 1 misdemeanor, is

constitutionally entitled to a jury trial;

(2) Whether the state court

decision is in conflict with the decisions

of the Supreme Court of the United States;

(3) Whether the State Court has

exceeded its jurisdiction and supplanted

its judgment for that of the legislature in

a legislative arena.

(4) Whether Arizona's

"reformulation" of the Federal right to

jury trial test violates the Equal

Protection Clause of the United States

Constitution.

.1.(b) The caption of the case contains

the names of all parties.

SERPS Re eee eRe eee a ee

-1.(c) Table of Contents and Table of

Authorities:

TABLE OF CONTENTS

Questions Presented for Review .... 1

og Ee a a ae a a ee ee ee ee ee

Table of Contents .....-e+«+e «© « 2

Meee Gf AUEHOFIti“es . . «© © eo we wo @ 2

Inferior Court Opinions (Reference). . 6

Jurisdictional Statement ....... 8

Constitutional Provisions. ...... 9

Statement of Case ... ++. «+o « e iid

Statement of Instance of

VT 8 a ee oe

ArGUMONtT . «© © © © © ew ew ew ew ew ew ltl elt CB

a. . ss + se ee elt tle lw tl CUE

TABLE OF AUTHORITIES

CONSTITUTIONAL PROVISIONS

U.S. Const. Amend. VI, XIV... 9, 15, 18

Ariz. Const., Art. 2, § 23 and 24

(amended 1972) > « « «© c© «© « £0, 35, 1S

CASES

Blanton v. City of North Las Vegas, . 21,

24, 26, 33, 36

0.6. , 109 S.Ct. 1289,

103 L.Ed.2da 550 (1989)

arom . Greer, »« ss es «© 6 © © @ *© 6 6! Ue

16 Ariz. 215, 141 P. 841 (1914)

Calien ©. Bilge. «¢ 5 6 sss 6 & eee

127 U.S. 540, 8 &§.Ct. 1301, 32 L.Ed.

223 (1888)

District of Columbia v. Clawans,. .. 15,

16. 45, Boe 32

300 U.S. 617, 57 S.Ct. 660, 81 L.Ed.

843 (1937)

District of Columbia v. Colts,. ... 16

28 U.S. 63, 353i &.Ce. S22, 75 LL. Ba. ive

(1930)

Duncan v. LouisSiana,. ... «+ 28, 27

391 U.S. 145, 88 S.Ct. 1444,

20 L.Ed.2d 491 (1968)

Pirches ©. Gemeeds, « «+ «© 6 ss tee et Ue

88 Wsh.2d 109, 558 P.2d 194 (1977)

Prank wv, pitas Bratee, . « «© «© © ss Oe

395 U.S. 147 (1969)

In Re Chase, ee © &@ © + + ee eC

299 Or. 391, 702 P.2d 1082 (1985)

In Re Marquarat, » Oe Be

59 Ariz. Adv. Rep. 27, filed

July 25, 1989

Landry v. Ho Rm, «es 6+ © aw 8 we el CUO

840 F.2d 1201 (5th Cir. Cal. 1988

en banc cert. pending No. 88-5043)

Rothweiler v. Su fe) rt Pim

County, 6 ee es © Wes aoe SB, OF

1 Ariz.App. 334, 402 P.2d 1010

(1965) (Rothweiler No. 1)

Rothweiler v. Superior Court of Pima

County, ee o « « ebS, 25, 26, 18

100 Ariz. 37, 410 P.2a 479 (1966)

(Rothweiler No. 2)

S.P.C.S., Inc. v. Lockheed

Shipbuilding, .. .+*+<« oa

29 Wash.App. 930, 631 P.2da 999 (1981)

OS) 2 A © Se a a

195 U.S. 65, 24 S.Ct. 826,

49 L.Ed. 99 (1904)

SeaTe . Bee ree, . « « 6 *& « 6 «6 0 ae

103 Ariz. 174, 438 P.2d 411 (1968)

State 2. Dime Grae. ... 6 « « « 6 oe

121 Ariz. 174, 589 P.2d 48 (App. 1978)

LAW REVIEWS

39 Harvard Law Review 979 ...... 27

STATUTES AND RULES

Arizona Revised Statutes § 13-907 .. 25

28 U.S.C., Rules of the Supreme

Court, BELG £7 «sw tc te eee ewe ee BS

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

State of Arizona, Petitioner v. City Court

of the City of Tucson, the Honorable Carmen

Dolny, a Magistrate thereof; Superior Court

of the State of Arizona, County of Pima,

the Honorable John’ Hawkins, a Judge

thereof, Arizona Supreme Court,

Respondents, and Timothy Haring, Real Party

in Interest,

and

State of Arizona, Petitioner v. City Court

of the City of Tucson, the Honorable

Margarita Bernal, a Magistrate thereof;

Superior Court of the State of Arizona,

County of Pima, the Honorable Thomas

Meehan, a Judge thereof, Arizona Supreme

Court, Respondents, and Marvin Littles,

Real Party in Interest.

ON APPEAL FROM THE SUPREME COURT OF ARIZONA

PETITION FOR WRIT OF CERTIORARI

COMES NOW the State of Arizona, by and

through the undersigned Tucson City

Attorney, and petitions the Court for a

writ of certiorari to review the decision

of the Supreme cCourt of the State of

Arizona.

1. (d) The opinions delivered in the

courts below are:

(1) State of Arizona v. Tucson

City Court and Marvin Littles, Real Party

in Interest, No. 245298 (Ariz., filed Nov.

2; 1987) and State of Arizona v. Tucson

City Court and Timothy Haring, Real Party

in Interest, No. 245299 (Ariz., filed Nov.

2, 1987). |

(2) State of Arizona,

Petitioner/Appellant v. City Court of the

City of Tucson, the Honorable Carmen Dolny,

a Magistrate thereof; the Superior Court of

the State of Arizona, County of Pima, the

Honorable John Hawkins, a Judge thereof,

and Timothy Haring, Real Party in

Interest/Appellee.

LR RRRRRRRA ROR R DEES a

(3) State of Arizona,

Petitioner/Appellant v. City Court of the

City of Tucson, the Honorable Margarita

Bernal, a Magistrate thereof; the Superior

Court of the State of Arizona, County of

Pima, the Honorable Thomas Meehan, a Judge

thereof, and Marvin Littles, Real Party in

Interest/Appellee.

NOS. 2 CA-CV 87-0351

2 CA-CV 87-0353 (Filed April

19, 1988)

(4) State of Arizona ex rel.

Frederick S. Dean v. the Honorable Carmen

Dolny, a Magistrate of the City Court of

the City of Tucson; the Superior Court of

the County of Pima; the Honorable John

Hawkins, a Judge thereof and Timothy

Haring;

State of Arizona ex rel.

Frederick Ss. Dean Vv. the Honorable

BHEUEURPUURUUMR EYEE Uee eee ee eee eee

Margarita Bernal, a Magistrate for the City

Court of the City of Tucson; the Superior

Court of the State of Arizona, County of

Pima, the Honorable Thomas Meehan, a Judge

thereof and Marvin Littles.

36 Ariz. Adv. Rep. 35 (filed June

15, 1989) (motion for reconsideration

denied September 26, 1989)

+e Jurisdiction of this Court is

invoked on the following grounds:

(1) Review is sought of the June

15, 1989 decision of the Supreme Court of

the State of Arizona.

(2) Motion for Reconsideration

was denied September 19, 1989 and mandate

issued September 27, 1989. No extension of

time for petition for certiorari is sought.

(3) Petitioner is unaware of any

cross-petitions for a writ of certiorari.

(4) This Court has jurisdiction

to review the decision in question by writ

of certiorari pursuant to 28 U.S.C., Rule

17, Supreme Court Rules.

.1.(f) This case involves the following

constitutional provisions:

(1) U.S. Const., Amend. VI:

AMENDMENT [VI.]

Jury trial for crimes, and

procedural rights

In all criminal prosecutions,

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 the nature and cause of

the accusation; to be confronted

with the witnesses against him; to

have compulsory process for

obtaining witnesses in his favor,

and to have the Assistance of

Counsel for his defence.

Proposal and Ratification

See note under Amendment [1)]).

SEU REECE EEC ETE eee ee

BUOUMeeeeeeeeeee eee eee eee ee ee

(2) Aris. Const., Art. 32;

Sections 23 and 24 (amended 1972):

§ 23. Trial by jury; number

of jurors specified by law

Section 23. The right of

trial by jury shall remain

inviolate. Juries in criminal

cases in which a sentence of

death or imprisonment for

thirty years or more is

authorized by law shall consist

of twelve persons. In all

criminal cases the unanimous

consent of the jurors shall be

necessary to render a verdict.

In all other cases, the number

of jurors, not less than six,

and the number required to

render a verdict, shall be

specified by law.

Amendment approved election Nov. 7,

1972, eff. Dec. 1., 1972

§ 24. Rights of accused in

criminal prosecutions

Section 24. In criminal

prosecutions, the accused shall

have the right to appear and

defend in person, and by counsel,

to demand the nature and cause

of the accusation against hin,

to have a copy thereof, to testify

in his own behalf, to meet the

witnesses against him face to face,

to have compulsory process’ to

compel the attendance of witnesses

\- , 5 (8. ] 4 se :

in his own behalf, to have a speedy

public trial by an impartial jury

of the county in which the offense

is alleged to have been committed,

and the right to appeal in all

cases; and in no instance shall

any accused person before final

judgment be compelled to advance

money or fees to secure the

rights herein guaranteed.

1. (9g) The facts material to

consideration of the questions involved:

Both cases involved essentially the same

facts and were consolidated in the Arizona

Court of Appeals. Each defendant was

arrested on outstanding warrants, and small

amounts of marijuana were found on both in

searches incident to arrest. Each

defendant was charged with unlawful

possession of less than one pound of

marijuana not for sale. The offenses are

class 6 felonies, however, pursuant to

written policies of the Pima _ County

Attorney, both were automatically filed as

Class 1 misdemeanors, punishable by up to

six months in jail and a $1,000.00 fine,

plus applicable surcharges. The defendants

were arraigned before different City

magistrates, and each case was set for a

jury trial. The City objected to the jury

settings and subsequently petitioned the

Pima County Superior Court for special

action relief in both cases; the court

denied relief. The City then appealed to

the Arizona Court of Appeals, Division Two.

The Court of Appeals consolidated the cases

and held that the defendants were not

entitled to a jury trial under“@ither the

United States Constitution, federal

decisional law, the Arizona Constitution or

Arizona state decisional law. Defendants

subsequently sought review in the Arizona

Supreme Court. The Arizona Supreme Court

vacated the Court of Appeals decision,

“reformulating” prior Arizona case law

interpreting the United States and Arizona

Constitutions; and holding that a

misdemeanor charge of possession of

marijuana is’ sufficiently serious’ to

warrant a jury trial.

.1.(h) The issue sought to be reviewed

was first raised at the trial court level

in both cases and petitions for special

action (interlocutory appeal) were filed on

September 10, 1987. Appeals on both cases

followed denial of special action relief,

timely re-raising federal and_ state

constitutional issues. Upon appeal by

defendants, the federal and state

constitutional issues were relied upon by

the State in opposition. See Appendices

(k) (i) - (iii), inclusive.

-1.(1) Review of a federal court action

ls not sought.

oi. (9) The question presented for

review concerns the noted federal and state

constitutional provisions. In addition,

the state court decision, both in its

result and its reasoning, is in direct

conflict with decisions of this Court, and

espouses a completely subjective

determination in the courts in an area

properly the province of the legislature.

Moreover, the Arizona Supreme Court has

demonstrated the unworkable subjectivity of

the espoused standard in its own decisions

rendered subsequent to its decision for

which review is herein requested.

The doctrine that there is no right to

a jury trial in “petty offenses" is deeply

entrenched in the law (Callan v. Wilson,

127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223

(1888)) cited in Rothweiler vy. Superior

Court of Pima County, 100 Ariz. 37, 410

P.2d 479 (1966) (Rothweiler No. 2); gee

also Duncan v. Louisiana, 391 U.S. 145, 159

(1968); District of Columbia v. Clawans,

300 U.S. 617, 624 (1937). The process for

determination of whether a crime is a petty

offense that constitutionally may be tried

without a jury is also deeply entrenched in

the law. Both concepts originate in the

federal law through the Sixth Amendment to

the United States Constitution. See

Rothweiler v. Superior Court of Pima

County, 1 Ariz.App. 334, 402 P.2d 1010 at

1012 (1965) (Rothweiler No. 1): Rothweiler

No. 2, page 42. The State of Arizona

recognizes this origination and _ its

application in Arizona. Rothweiler, id.;

U.S.C.A. Constitution Article 3, Section 2;

Amendment 6, 14; A.R.S. Constitution

Article 2, Sections 23 and 24.

In order to determine whether’ the

offense of DUI was serious or petty, the

Rothweiler court used the United States

Supreme Court's three-prong test of ". .

the severity of the penalty inflictable, as

well as the moral quality of the act and

its relation to common law crimes .. .".

Rothweiler at page 42. (All references to

Rothweiler hereinafter are to Rothweiler

No. 2 unless specifically denoted

otherwise). The Arizona Supreme Court

adopted this standard citing with approval:

Callan _ v. Wilson, 127 U.S. 540, 8 S.Ct.

1301, 32 L.Ed. 223 (1988); See also,

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

617, 57 S.Ct. 660, 81 L.Ed. 843 (1937);

District of Columbia v. Colts, 282 U.S. 63,

51 S.Ct. 52, 75 L.Ed. 177 (1930); Schick v.

U.S., 195 U.S. 65, 24 S.Ct. 826, 49 L.dd.

99 (1904). It is apparent that when

Justice Udall wrote this opinion for the

Arizona Supreme Court, he adopted outright

the United States Supreme Court's criteria

for deciding whether an offense was petty

or serious enough to warrant a jury trial.

It is worthy of note that he did so two

years before Duncan v. Louisiana, 391 U.S.

145, 88 S.Ct. 1444, 20 L.Ed.2d. 491 (1968)

made the Sixth Amendment's right to jury

trial guaranteed to defendants by the

United States Constitution applicable to

the states by the due process clause of the

Fourteenth Amendment.

The Arizona Supreme Court, in the cases

at bar, recognizes the precedence of the

Sixth Amendment concepts and _e federal

decisional law, as well as the requisite

developed Arizona decisional law. The crux

of the decision at issue is the application

of the first prong of the now familiar

Rothwejiler test articulated by the Arizona

Supreme Court in Rothweiler No. 2. As

noted previously, the Rothwejler three-

prong determination is itself the result of

the examination of the United States

Constitution and the Arizona Constitution,

and the conclusion that the guarantee of a

jury trial in the Arizona State

Constitution is substantially the same as

that of the Sixth Amendment to the Federal

Constitution. Rothweiler No. 1; A.R.S.

Constitution Article 2, Sections 23 and 24;

U.S.C.A. Constitution Amendment 6. The

Arizona Supreme Court has consistently held

that the right to jury trial in Arizona is

no greater than it was before the State

Constitution was enacted. Brown v. Greer,

16 Ariz. 215, 141 P. 841 (1914); St v.

Armstrong, 103 Ariz. 174, 438 P.2d 411

(1968). Even the State of Washington, from

which most of Arizona's Constitution, and

particularly the wording of Article 24, was

copied, has held = that their State

Constitution guarantees those rights to

trial by jury which existed at the time of

the adoption of the constitution. Firchau

v. Gaskill, 88 Wsh.2d 109, 558 P.2d 194 at

197 (1977); S.~.P.C.S., Inc. Vv

Shipbuilding, 29 Wash.App. 930, 631 P.2d

999 (1981).

What the Arizona Supreme Court next

reasons is a misstatement of federal and

state decisional law, as well as_ the

usurpation of the legislative power and

prerogative. The Arizona court concludes,

at page 37 of its opinion reported at 36

Ariz. Adv. Rep. 35, that a conviction for

possession of marijuana results in

consequences sufficiently grave to warrant

a jury trial. Those consequences, the

court goes on, are illustrated by decreased

employment opportunities, possible

imposition of conditions on employment,

such as drug counseling, treatment or

testing, and the possible unavailability of

certain occupations and_ professional

licenses. These consequences, the court

reasons, “bring the crimes out of the

category of petty cases and into the

category of serious cases, . . . Thus,

defendants are entitled to a jury trial."

The consequences, as enumerated = and

counseled for consideration by the Arizona

court, are non-statutory, collateral

consequences of conviction and are not

appropriate for examination pursuant to the

Rothweiler tests. In addition,

consideration of said collateral

consequences is a misapplication of federal

decisional law. As Arizona Supreme Court

Justice Corcoran correctly points out in

his dissent, only penalties’ directly

resulting from state action, that is, those

mandated by specific statute or regulation

and resulting from state action should be

considered. See Blanton v. City of North

Las Vegas, | U.S. , 109 §.Ct.

1289, 103 L.Ed.2d 550 (1989), note 8. As

Mr. Justice Marshall of the United States

Supreme Court correctly points out in

Blanton, the non-statutory consequences of

a conviction “are speculative in nature

because courts cannot determine with any

consistency when and if they will occur,

especially in the context of society's

continually shifting moral values."

Blanton, note 8. While the Arizona court

postulates that the instant consideration

ralis within the Rothweiler case, the court

then proceeds to "slightly reformulate" the

test by introducing to the consideration

subjective judicial sympathy and emotions

quite apart from the objective standards

necessary for formulation of any workable

benchmark for this or any other

consideration.

Petitioner respectfully points out that

in each consideration of the Rothweiler

test, or those discussions preceding the

articulation of the Rothwejler test, all

considerations were of direct consequences

of the state action and state imposed

punishment, not of collateral and adjunct

"social consequences." Even in Rothweiler

proper, when the Arizona court discussed

the use of an automobile and the possible

loss of the use of said automobile as an

examination of the severity of the penalty,

it was examining a penalty meted out by the

state; that is, the statute provided for

the possibility of the loss of the driving

privilege upon conviction. The Arizona

court's cited case of State v. Pima County

Superior Court, 121 Ariz. 174, 589 P.2d 48

(App. 1978) stands not for the proposition

that an accused's ability to earn a living

is a proper yardstick for measuring

"severity of penalty," but, according to

Arizona Appeals Court Chief Judge Richmond,

is an onus of moral turpitude that attaches

to a conviction for shoplifting. It is

therefore not a consideration in assessing

the statutory severity of penalty. As

Justice Corcoran further notes in dissent,

this "moral quality" of an offense is

considered in the second and separate prong

of Rothweiler, and not in consideration of

the “severity of penalty."

As correctly noted in Blanton and

approved by the Arizona Supreme Court, the

most relevant criteria for determining the

seriousness of an offense is the severity

of the maximum authorized penalty fixed by

the legislature. "In fixing the maximum

penalty for a_ crime, a legislature

include(s} within the definition of the

crime itself a judgment about the

seriousness of the offense." Blanton

citing Frank v. United States, 395 U.S. 147

(1969). That judgment of the legislature

is the most relevant crite in

determining the seriousness with which

society regards an offense. See Frank and

Blanton.

To expand the Rothweiler inquiry past

statutory consequences of conviction is an

infringement on the legislative power and

prerogative to declare and define what

crimes are serious. The Arizona

legislature has made available to those

convicted of certain offenses, including

misdemeanor marijuana possession, the

opportunity to apply for the setting aside

of the judgment of guilt pursuant to A.R.S.

§ 13-907. In so doing, the legislature has

addressed the collateral consequences of

which this Court speaks, insofar as the

legislature has deemed appropriate. For

the judiciary to supplant its judgment as

to the seriousness of crime is usurpation

of power reserved to the legislature.

The United States Supreme Court, in The

District of Columbia v. Clawans, 310 U.S.

617, 57 S.Ct. 660 (1937), again referring

to federal decisional law oon _ Sixth

Amendment questions of jury trial and the

parameters under which that right is

tested, recogmized the statutorily allowed

sentence as most relevant in determining

severity of punishment. This, of course,

‘l

ul i

leads inexorably to the first prong of a

Rothweiler test about which the Arizona

court is concerned. The fact is that

Rothweiler counsels consideration only of

statutorily mandated possible sentences.

How could it be otherwise? That is a pure

statement of the legislative will and

purpose. The judiciary should not

substitute its judgment as to the

seriousness of a crime for that of a

legislature. The legislature is far better

equipped to perform the task, and likewise,

more responsive to changes in attitude and

more amenable to the recognition and

correction of their misperceptions in this

respect. Blanton, citing Landry v.

Hoepfner, 840 F.2d 1201, 1209 (5th Cir.

Cal. 1988 en banc cert. pending No. 88-

5043).

SReBUBeBReHReeReeeeReHReHaeaAaeeReaeHee eee ee ee ee eS

Referring again to Rothweiler No. 1 at

page 341, the Arizona court’ therein

searches for the legislative intent and

approves of the statement that in the

matters of jury trial, considerable margin

for legislative discretion should be

afforded. Quoting 39 Harvard Law Review

page 979; District of Columbia v. Clawans.

Variances in standards of action and of

policy from generation to generation

recognized by the Supreme Court in Clawans

must find final expression in the

legislative pronouncements of the various

legislatures and not in judicial fiat.

The Arizona court leaves no standard

with which to prospectively judge its

opinion. The consequences which the court

recognizes cannot, over time, be determined

with any degree of confidence. Petitioner

admits of confusion as to how the "slightly

reformulated" test might, in practice, be

utilized. On the one hand, an individual

may subject himself to loss of his/her

driving privilege by accumulating a

sufficient number of civil traffic

violations. Presumably, this loss of

driving privilege would have the same

possible collateral non-statutory

consequences on this individual as would

the loss of the driving privilege through

a DUI conviction. Those collateral

consequences (decreased employment

opportunities, possible imposition of

conditions on employment, etc.) being

equated to "grave consequences resulting

from convictions" pursuant to the

"reformulated" test announced by the

Arizona Supreme Court, mandate a jury trial

for said individuals. This would further

exacerbate the problems of an already

overcrowded and overburdened court systen.

The potential for additional jury trials is

multi-fold and not easily estimated, but is

certainly unmanageable with today's limited

judicial resources. On the other hand, if

the above situation is not that envisioned

by the Arizona Supreme Court, is each case

to be evaluated individually for its

possible non-statutory collateral

consequences to the individual defendant,

in violation of the Equal Protection Clause

of the United States Constitution?

Certainly, the defendant who is entering

law school could demonstrate the possible

grave non-statutory collateral consequences

mentioned by the Arizona Supreme Court. A

retired 70-year old farm worker, however,

does not have the benefit of such

consideration. Indeed, future employment

may be of no consequence to him. Both

individuals, however, are entitled to the

same application and protection of the law.

Any application of the court's reformulated

test must result in one course or the

other, and neither result is tenable in our

system of law.

The Arizona Supreme Court itself

demonstrates the speculative nature of the

propounded consideration in its subsequent

decision in In Re Marquardt, 59 Ariz. Adv.

Rep. 27, filed July 25, 1989. That case

dealt with proceedings in judicial

misconduct and involved the conviction of

an Arizona Superior Court judge of the

Texas misdemeanor of possession of

marijuana. In that opinion, the Arizona

Supreme Court, in discussing the

seriousness of the crime, stated:

Thus, we agree with the

Commission's view: the

maximum punishment imposable

under Arizona law for the

conduct involved, and not

speculation as to how the

case otherwise might have

been handled, determines

whether the crime charged

was one ‘punishable as a

felony' within the meaning

Of Art. 6.3, § 3-

(emphasis added)

Marquardt, page 29.

The Arizona Supreme Court further states

at page 30:

The very fact that the

legislature classified this

crime as either a felony

or a misdemeanor indicates

the crime is not of the

highest order.

(emphasis added)

2 x « *

Mere possession of small

amounts of marijuana for

personal use has always

been considered a crime malum

prohibitum - wrong because

prohibited by legislation.

In Re Chas 299 Or. 391,

» tea P.2d 1082, 1086

(1985)

(emphasis added)

The Arizona court continues in Marquardt

to support its contention that misdemeanor

marijuana possession is not a "serious"

offense.

While the ultimate issue for

determination is not identical in Marquardt

and Haring/Littles, the categorization of

the underlying criminal conduct as

"serious" is the same. What the two cases

demonstrate, taken together, is that

consideration of non-statutory and

collateral consequences of criminal

convictions is so speculative and

subjective that the result rests not on the

legislative determination, but on

subjective sympathy and emotion, which,

apparently, depends on the predisposition

of the judiciary in each individual

setting.

What the Arizona Supreme Court has

demonstrated is what the Blanton court

recognized; that "nonstatutory consequences

of a conviction ‘are speculative in nature,

because courts cannot determine with any

consistency when and if they will occur,

especially in the context of society's

continually shifting moral values'."

Blanton at footnote 8.

What the court's newly announced

shifting value consideration has done is to

remove the matter from the consideration of

the only entity that is equipped to respond

to those shifting considerations; that is,

the legislature. "Doubts must be resolved,

not subjectively by recourse of the judge

to his own sympathy and emotions, but by

objective standards such as may be observed

in the laws and practices of the community

taken as a gauge of its social and ethical

judgments." Columbia v. Clawans, infra.

It is doubtiul that the Arizona Supreme

Court, faced with a legisiative enactment

or delegation of authority to a lesser

administrative body, would approve of such

enactment or delegation being prefaced with

consideration of such a shifting value

standard as that announced in the case at

bar. Such standard is unworkable and

unpredictable for lack of non-discretionary

and objective standards with which to gauge

the right.

CONCLUSION

The Petitioner respectfully adopts

Arizona Supreme Court Justice Corcoran's

dissent and reiterates that the Blanton

court reasoning and determination is

controlling in the cases at bar. A jury

trial for misdemeanor marijuana possession,

pursuant to the true Rothweiler test, is

not required by either the United States

Constitution, the Arizona Constitution, or

Arizona statutes. No good cause has been

(

demonstrated for the courts to substitute

their judgment for that of the legislature

in determining the seriousness of a purely

statutory crime. In performing an analysis

of the right to jury trial, only penalties

resulting from state action, e.g., those

mandated by statute or regulation can be

considered.

A defendant is entitled to a jury trial

for a charge of misdemeanor marijuana

possession “only if he can demonstrate that

any additional statutory penalties, viewed

in conjunction with the authorized period

of incarceration, are so severe that they

clearly reflect a legislative determination

‘Sue eee ww i bk

Bite eee ee ee ee ee ee eee

that the offense in question is a ‘serious’

one." Blanton, infra. (emphasis added).

The decision at issue and presented to

this Court does not rest on independent

state grounds. Indeed, the right to jury

trial in Arizona is an admitted application

of the Sixth Amendment to the United States

Constitution. Petitioner therefore

suggests that this Court has very recently

decided this precise issue in Blanton. The

Court need not now grant plenary review and

revisit those considerations. Petitioner

respectfully requests that this Court

summarily reverse the holding of the

Arizona Supreme Court, as it is in direct

conflict with this Court's decision in

—_—

Blanton v. City of North Las Vegas, infra.

RESPECTFULLY SUBMITTED this 17th

day of November, 1989.

.1. (k)

(1)

(11)

Frederick S. Dean

Tucson City Attorney

P.O. BOx 27210

Tucson, AZ 85726-7210

Tel: (602) 791-4221

Attorneys for Petitioner

Counsel of Record

Appendix -

Arizona Supreme Court

Opinion - 6-15-89

Arizona Court of Appeals,

Division Two - Opinion filed

4-19-88

Pima County Superior Court

Judgment 11-2-87 re:Littles,

Minute Entry 10-13-87 and

amendment 10-26-87

(with City Court minute entry

10-26-87)

Pima County Superior Court

Judgment 11-2-87 re:Haring,

Minute Order 10-14-87

L—4

(iii) 9/26/89 Minute Order re denial

of Motion for Reconsideration

Arizona Supreme Court Mandate

‘4

(1)

APPENODTI X

En Banc

STATE OF ARIZONA

ex rel. Frederick

S. Dean,

Petitioner/

Appellant,

The HONORABLE CARMEN

DOLNY, a Magistrate

of THE CITY COURT OF

THE CITY OF TUCSON;

THE SUPERIOR COURT OF

THE STATE OF ARIZONA,

COUNTY OF PIMA; the

HONORABLE JOHN HAWKINS,

a Judge thereof;

Respondents,

and

TIMOTHY HARING,

Real Party in

Interest/Appellee.

STATE OF ARIZONA

ex rel Frederick

S. Dean,

Petitioner/

Appellant,

Vv.

The HONORABLE

)

IN THE SUPREME COURT OF THE STATE OF ARIZONA

(Filed June 15,

1989)

Supreme Court

No. CV-88-0272-

Court of Appeals

Nos. 2 CA-CV

_ 87-0351

and 2 CA-CV

87-0353

(consolidated)

Pima County

Nos. 245298

and 245299

OPZHivgs

MARGARITA BERNAL, a )

Magistrate for THE )

CITY COURT OF THE CITY )

OF TUCSON; THE SUPERIOR)

COURT OF THE STATE OF )

ARIZONA, COUNTY OF

PIMA, the HONORABLE

THOMAS MEEHAN, a

Judge thereof;

Respondents,

and

MARVIN LITTLES,

Real Party in

Interest/Appellee.

me ee ee et et ee ee ee eet eee ee

Appeal from the Superior Court of Pima County

The Honorable Thomas Meehan, Judge

The Honorable John Hawkins, Judge

AFFIRMED

Opinion of the Court of Appeals, Division

Two, Ariz. P P.2d

(App. y

VACATED

Frederick S. Dean, Tucson City Attorney

By M.J. Raciti, L. Michael Anderson and

Christopher L. Straub, Assistant City

Attorneys, Tucson

Attorneys for Petitioner/Appellant

Dunscomb & Shepherd

By Denice R. Shepherd, Tucson

Attorneys for Real Parties in Interest

MOELLER, Justice

JURISDICTION

These two consolidated cases are both

misdemeanor prosecutions for possession of

marijuana. The court of appeals, in a

published opinion, reversed lower court

orders granting jury trials in these cases.

We granted review and have jurisdiction

pursuant to article 6 § 5(3) of the Arizona

Constitution and Rule 23 of the Arizona

Rules of Civil Appellate Procedure.

ISSUE

Whether a defendant criminally charged

with unlawful possession of marijuana,

designated as a Class 1 misdemeanor, is

entitled to a jury trial.

BACKGROUND

The court of appeals consolidated the

cases of Timothy Haring and Marvin Littles.

Both cases involve essentially the same set

of facts. Each defendant was arrested on

outstanding warrants: Haring on August 19,

1987, and Littles on August 29, 1987. In

each case, a search incident to arrest

revealed a small amount of marijuana. Each

defendant was charged with unlawful

possession of less than one pound of

marijuana not for sale. A.R.S. § 13-

3405(B)(1) makes such offenses Class 6

felonies. However, pursuant to written

policies of the Pima County Attorney,

felony prosecution was automatically

declined and the cases were filed as Class

1 misdemeanors, punishable by up to six

months in jail and a $1,000 fine, plus

applicable surcharges. The defendants were

arraigned before different city

magistrates, and each case was set for a

jury trial. The city objected to the jury

settings, arguing that under the decisions

in State v. Moreno, 134 Ariz. 199, 655 P.2d

23 (App. 1982), and State ex rel. Dean v.

City Court of Tucson, 141 Ariz. 361, 687

P.2d 369 (App. 1984), the defendants were

not entitled to a jury trial.

The city petitioned the Pima County

Superior Court for special action relief in

both cases; the court denied relief. The

city then appealed to Division Two of the

court of appeals. The court of appeals

held that the defendants were not entitled

to a jury trial.

COURT OF APPEALS DECISION

The court of appeals first concluded

that federal constitutional law did not

require a jury trial in these cases.

Recent federal case law supports’ the

court's opinion, at least where’ the

constitutional analysis is limited

primarily to a consideration of the

severity of the potential punishment. See

Blanton v. City of North Las Vegas, Nev.,

U.S. , 109 S.Ct. 1289, 103

L.Ed.2d 550 (1989). The court of appeals

then looked to the rules developed in

Arizona for determining the circumstances

under which state law requires a jury

trial. The appeals court correctly noted

that we have applied a three-pronged test

to answer this question. Rothweiler v.

Superior Court, 100 Ariz. 37, 42, 410 P.2d

479, 483 (1966).

The three prongs of the Rothweiler test

are: (1) the severity of the possible

penalty; (2) the moral quality of the

crime; and (3) the relationship of the

crime to common law crimes. The court of

appeals concluded that the defendants did

not qualify for a jury trial under

Rothweiler.

The court reasoned that because the

possible penalty for a Class 1 misdemeanor

is "only" a $1,000 fine and six months in

jail, the penalty was not severe enough to

necessitate a jury trial. State v. City

Court of Tucson, 157 Ariz. 599, 602, 760

P.2d 599, 602 (1988) (citing State ex rel.

Baumert v. Superior Court, 127 Ariz. 152,

618 P.2d 1078 (1980)). The court also

determined that because no common law

counterpart to possession of marijuana

existed, that aspect of Rothweiler was

unavailable. The court concluded finally

that possessing marijuana does not involve

moral turpitude; thus the "moral quality"

prong of Rothweiler also did not apply.

DISCUSSION

The right to a trial by jury is

guaranteed in article 2, §§ 23 and 24 of

the Arizona Constitution.’ It has been held

that jury trial is not available to all

criminal defendants, but rather only to

those defendants charged with serious, as

opposed to petty, crimes. See, e.q.,

Goldman v. Kautz, 111 Ariz. 431, 531 P.2d

1138 (1975); Rothweiler v. Superior Court,

100 Ariz. 37, 410 P.2d 479 (1966); See also

Baldwin v. New York, 399 U.S. 66, 90 S.Ct.

‘Article 2, § 23 of the Arizona

Constitution provides in pertinent

part:

The right of trial by jury shall

remain inviolate.

Article 2, § 24 provides in part:

In criminal prosecutions, the

accused shall have the right

to . . . have a speedy public

trial by an impartial jury

1886, 26 L.Ed.2d 437 (1970) (establishing

standard for "petty" under the federal

constitution).

Our legislature has defined "petty

offense" as “an offense for which a

sentence of a fine only is authorized by

law." A.R.S. § 13-105(24). We agree with

the observations of Judge Contreras

dissenting in State v. Moreno, 134 Ariz.

199, 655 P.2d 23 (App. 1982), that, while

the statutory definition of "petty" is not

controlling on the issue of right to jury

trial, it is entitled to considerable

deference, particularly given the fact that

our legislature has defined the terms

"felony," “misdemeanor," and "petty" in a

mutually exclusive manner. See A.R.S. §

13-105(13, 18 and 24). We find it

Significant that the legislature does not

consider any offense "petty" which could

Oooo

result in any jail time let alone six

months.

We turn now to a consideration of

Arizona case law.

As we have noted, this court in

Rothweiler established a three-part

standard by which to determine whether an

offense is petty or serious and, thus,

whether a defendant is entitled to a jury

trial. The Rothweiler court determined

that a defendant in a DUI case was entitled

to a jury trial because of the seriousness

of the possible penalty together with the

potentially grave consequences flowing from

conviction. Rothweiler, 100 Ariz. at 44-

45, 410 P.2d at 484-85.

‘The maximum penalty Rothweiler could

have received was a $300 fine and six

months in jail; the court also had the

authority to suspend his driving

privileges for 90 days. 100 Ariz. at 39,

410 P.2d at 481.

Although the Rothweiler opinion referred

to the "grave consequences" as implicating

the moral quality of the crime, this

suggests too narrow an inquiry. The

Rothweiler court was undoubtedly concerned

with the stigma associated with certain

crimes, but it was primarily concerned with

the nature of the consequences resulting

from a conviction, such as the impact that

losing one's driver's license could have on

the defendant's ability to earn a living.

Id.

Certainly, being charged with a crime of

moral turpitude warrants a jury trial.°

Damage to reputation, humiliation, and loss

of dignity beyond that associated with all

crimes brings moral turpitude crimes, by

*The term "moral turpitude" generally

refers to acts that adversely reflect

on one's honesty, integrity, or personal

values. See Ariz. R. S. Ct. 42, Rules

of Professional Conduct, E.R. 8.4 (comment).

their very nature, into the realm of

serious cases. However, being tried for a

crime that does not fall within the

definition of moral turpitude may also be

serious enough to warrant a jury trial,

chiefly because of the grave consequences

resulting from conviction. Thus, we regard

it as a mistake to read Rothweiler to hold

that the moral quality prong only applies

to moral turpitude crimes.

In State v. Pima County Superior Court,

121 Ariz. 174, 589 P.2d 48 (App. 1978),

Division Two of the court of appeals,

concerned about the accused's ability to

earn a living, ruled that a misdemeanor

charge of shoplifting required a jury

trial. The court illustrated the impact of

a conviction by listing a number of

professions or occupations in which one's

ability to obtain a license could be

restricted as a result of a shoplifting

conviction. Id. at 175 n.3, 589 P.2d at 49

n.3 (e.g., attorneys, A.R.S. §32-273

(repealed); nurses, A.R.S. § 32-1663(A) (2);

security guards, A.R.S. § 32-2615(3)).

We conclude that a conviction for

possession of marijuana results in

consequences sufficiently grave to wagons

a jury trial. Not only could one convicted

of possession of this illegal drug expect

decreased employment opportunities, one

could also reasonably expect the imposition

of conditions to be placed on employment or

potential employment, such as drug

counselling, treatment, or testing.

Moreover, certain occupational and

professional licenses could conceivably be

unavailable to these defendants should they

be convicted (e.g., pharmacists, A.R.S. §

32-1927(A)(4) and (5), attorneys, Ariz. R.

S. Ct. 59(b) (1) (B)).

These types of consequences bring the

crimes out of the category of petty cases

and into the category of serious cases,

despite the possible penalty being "only"

a $1,000 fine and six months in jail.

Thus, defendants are entitled to a jury

trial.*

Having resolved the cases before us, it

is unnecessary to go further and decide

‘While the federal and state constitutions

speak in terms of the accused's right to a

jury trial, we note that in Arizona by

constitutional provision and by rule, the

state's right to a jury trial is co-extensive

with the accused's right, because the accused

cannot waive his right to a jury without the

consent of the prosecutor and the court.

Ariz. Conat. art. 6, § 173 Arig. BR. Cram.

P. 18.1(b). See also A.R.S. § 13-3983.

Although the majority in Moreno only addressed

the jury trial issue in response to the

dissent, we believe it is necessary, for

the sake of clarity, to state specifically

that we disapprove of the Moreno court's

conclusion that the charge of simple

possession of marijuana does not entitle

defendant to a jury trial.

whether the Arizona Constitution requires

a jury trial in ail criminal cases,

including those tried in non-record courts.

We recognize that territorial statutes

dating as far back as 1871 and remaining in

force at the time the constitution was

adopted, specifically provided for a jury

upon demand in all criminal cases,

including those in non-record courts.

Penal Code, Title XXII, § 1318 (1913);

Penal Code, Title XXI, § 1191 (1901; Penal

Code, Title XXII, ch. 1, § 2217 (1887),

Laws, ch. 11, § 583 (1871). We also note

that the language of article 2, § 23 of the

Arizona Constitution at the time of

adoption clearly contemplated jury trials

in non-record courts:

The right of trial by jury

shall remain inviolate, but

provision may be made by law for

a jury of a number of less than

twelve in courts not of record

, (Amended to its current

form, Nov. 7, 1972.)

Thus, one could argue that the state

constitution at the time of adoption

intended to provide for jury trials in all

criminal cases. However, because we

conclude that the instant case falls within

the Rothweiler test, now slightly

reformulated by us, we leave the

alternative constitutional arguments for a

case in which they must be addressed.

CONCLUSION

We hold that under Rothweiler a

misdemeanor charge of possession of

marijuana is sufficiently serious’ to

warrant a jury trial, primarily because of

the potentially grave consequences,

together with the potential direct

punishment, resulting from a conviction.

The court of appeals opinion is vacated.

The superior court judgments are affirmed.

The cases are remanded for jury trials.

JAMES MOELLER, Justice

CONCURRING:

FRANK X. GORDON, JR., Chief Justice

STANLEY G. FELDMAN, Vice Chief Justice

JAMES DUKE CAMERON, Justice

CORCORAN, Justice, dissenting.

I respectfully dissent. Because I

believe that defendants are not entitled to

jury trials under either the federal

constitution or the Arizona constitution,

I would affirm the court of appeals'

decision.

1. Federal law

In Blanton v. City of North Las Vegas,

U.S. , 109 S.Ct. 1289, 103

L.Ed.2d 550 (1989), the Supreme Court held

that persons charged under Nevada law with

driving under the influence of alcohol are

not entitled to jury trials. Under Nevada

law, first-time DUI offenders face up to 6

months in jail and must pay a fine of up to

$1,000--the same penalties imposable on

persons convicted of misdemeanor possession

of marijuana in Arizona. See A.R.S. §§ 13-

707(A) (1), -802(A).

In reaching its decision, the Court

observed that the most relevant criterion

for determining the seriousness of an

offense is the severity of the maximum

penalty fixed by the statute. 109 S.Ct. at

1292. The Court held that an offense

carrying a maximum jail term of 6 months or

less will be presumed "petty," and stated:

A defendant is entitled to jury

trial in such circumstances only

if he can demonstrate that any

additional statutory penalties,

viewed in conjunction with the

maximum authorized period of

incarceration, are so severe that

they clearly reflect a legislative

determination that the offense in

question is a "serious" one.

408: 8.Cct. at 1293 (emphasis added).

Considering the maximum jail sentence of 6

months, together with the additional

penalties imposed by the Nevada DUI

statute, including a maximum fine of $1,000

and a 90-day driver's license suspension, '

the Court concluded that DUI in Nevada is

not a "Serious" offense, and that,

therefore, first-time DUI offenders are not

entitled to jury trials under the Sixth

Amendment to the United States

Constitution.

The Sixth Amendment provides: "In all

criminal prosecutions, the accused shall

enjoy the right to... an impartial jury

." This safeguard is substantially

the same as that provided by the Arizona

Constitution. Article 2, § 23 provides

that "(t]he right of trial by jury shall

remain inviolate," while § 24 states: "In

criminal prosecutions, the accused shall

have the right... .tohavea... trial

‘The penalties imposed on first-time

DUI offenders under Arizona law are

nearly identical to those imposed under

Nevada law. See A.R.S. § 28-692.01.

by an impartial jury... ."

Because the right to jury trial provided

by the federal and Arizona constitutions

are nearly identical, I would follow the

interpretation placed on the federal

provision by the United States Supreme

Court in interpreting the Arizona

provision. Accordingly, I would hold that

the penalties faced by defendants in our

case--6 month's imprisonment and a $1,000

fine--do not entitle them to jury trials.

2. Arizona law

Even assuming that we must apply a

different standard in interpreting a

defendant's right to a jury trial under the

Arizona constitution and laws, I would hold

that a misdemeanor possession of marijuana

charge does not warrant a jury trial. As

the majority correctly notes, the

Rothweiler court established 3 factors to

use in determining a defendant's right to

a jury trial: (1) the severity of the

possible penalty, (2) the "moral quality of

the act," and (3) the relation of the

offense to common law crimes. Rothweiler,

100 Ariz. at 42, 410 P.2d at 483. The

Rothweiler court focused primarily on the

first factor in holding that a defendant

charged with DUI was entitled to a jury

trial. Noting that, if convicted, the

defendant could be subject to

"imprisonment, a fine and suspension of his

right to drive for a period of time, or any

combination of the three," the court held:

The severity of the penalty

that may be imposed demands

that [defendant] be afforded

protection of fundamental

guarantees of life and liberty

as guaranteed by the Arizona

Constitution.

100 Ariz. at 44, 410 P.2d at 484.

URE Ee Ee np

We previously have held that a maximum

penalty of 6 months' imprisonment and a

$1,000 fine is not serious enough to

warrant a jury trial. State ex rel.

Baumert v. Superi pare, 127 Aris. i152,

618 P.2d 1078 (1980). Thus, Rothweiler's

first factor would not entitle defendants

in our case to jury trials.

Regarding the second factor--the moral

guality of DUI--the Rothweiler court

remarked:

[I]ts moral quality has become

offensive to the public as_

d s Vv

the punishment. Such conduct is

repugnant to the community as well

as the law because of the potential

harm and evil that may result from

such practice.

100 Ariz. at 44, 410 P.2d at 485 (emphasis

added). Thus, the court's determination of

the moral quality of the offense was guided

by the severity of the penalty. A

convicted defendant's potential loss of

BHHHH BHR URUUUUUU Eee eee

driving privileges was merely a

consideration in the court's determination

of the severity of the penalty; it was not

an independent factor militating in favor

of a jury trial.

I agree with the court's statement in

City of Phoenix v. Jones, 25 Ariz.App. 98,

100, 541 P.2d 424, 426 (1975):

We have some difficulty in the

area of assessing the "moral

quality" of the act, feeling that

moral judgments are best left in

the hands of the legislature to

mark the degree of decadency of the

act by the penalty it imposes for

its transgression.

Although the court of appeals vacated its

opinion on a motion for reconsideration,

the court adhered to its earlier

pronouncement regarding the determination

of an offense's "moral quality" in

answering the defendant's claim that the

crime of carrying a concealed weapon is one

involving "moral turpitude":

PHBH UPR U UU

In our prior opinion, we

specifically rejected the

proposition that the judiciary

is in a position to categorize

the "seriousness" of a crime, this

being a function of the legislature

by setting the punishment to be

exacted. We see no reason to

deviate from this prior expression.

City of Phoenix v. Jones, 25 Ariz.App. 265,

266, 542 P.2d 1145, 1146 (1975). As

evidenced by the maximum penalties

imposable--6 months' imprisonment and a

$1,000 fine--the "moral quality" of

misdemeanor possession of marijuana does

not entitle defendants in this case to jury

trials.

This court has examined the "moral

quality" of an offense by considering

whether the defendant "is a depraved and

inherently base person," or whether the

offense "involve([(s] serious moral

turpitude." O'Neill _v. Mangum, 103 Ariz.

484, 485, 445 P.2d 843, 844 (1968) (holding

UUUUU UEP RU R Ree

that defendants charged with "drunk and

disorderly" conduct were not entitled to a

jury trial). Our court of appeals rejected

a defendant's claim that he was entitled to

a jury trial on his’ reckless driving

charge, finding the offense was not "'an

act of such obvious depravity that to

characterize it as a petty offense would be

to shock the general moral sense.'" State

ex rel. Dean v. City Court, 141 Ariz. 361,

363, 687 P.2d 369, 371 (App. 1984), quoting

District of Columbia v. Colts, 282 U.S. 63,

vos ee Baae. Sa, 33, 75 L.BaG. 177, 213-14

(1930).

I would hold that the moral quality of

a possession of marijuana charge is no

worse than that of other offenses Arizona

courts have held to be insufficient to

satisfy Rothweiler's second factor. See

Spitz v. Municipal Court, 127 Ariz. 405,

HUH UU

621 P.2a 911 (1980) (sale of alcoholic

beverages to minors); State ex rel. Baumert

v. Superior Court, (disorderly conduct);

Bruce v. State, 126 Ariz. 271, 614 P.2d 813

(1980) (simple assault); Goldman v. Kautz,

111 Ariz. 431, 531 P.2a 1138 (1975) (simple

assault and battery); O'Neill v. Mangum

(drunk and disorderly conduct); State ex

rel. Dean v. City Court (reckless driving) ;

City of Phoenix v. Jones, 25 Ariz.App. 265,

542 P.2d 1145 (1975) (carrying a concealed

weapon).

The majority admits that possession of

marijuana "does not fall within the

definition of moral turpitude," but holds

that Rothweiler's second factor is

satisfied because of the "grave

consequences resulting from conviction."

I again point out that the Rothweiler court

was concerned with the "grave consequences"

BHU UP EPP HEU UUHUREREeeeeeae

resulting from a DUI conviction--suspension

of driving privileges--only in considering

the first factor of the test--the severity

of the possible penalty. The statute

applicable in Rothweiler specifically

authorized a court to suspend a convicted

defendant's driver's license.

Adverse consequences that are not

provided by the statute, but which

nevertheless flow from a conviction, are

insufficient to require a jury trial. In

Spitz, we held that a defendant charged

with selling liquor to a minor is not

entitled to a jury trial, and stated:

The fact that there might be

an additional sanction, such as

suspension of the liquor license

by the Superintendent of the

Department of Liquor Licenses and

Control, A.R.S. § 4-210, does not

mandate a jury trial.

127 Ariz. at 408, 621 P.2d at 914.

PHU UHURU

The majority concludes that "certain

occupational and _ professional licenses

could conceivably be unavailable to these

defendants should they be convicted." In

Baldwin v. New York, 399 U.S. 66, 90 S.Ct.

1886, 26 L.Ed.2d 437 (1970), the Supreme

Court noted:

[T]he prospect of imprisonment

for however short a time will

seldom be viewed by the accused

as a trivial or "petty" matter

and may well res j uite

serious repercussions affecting

his career and his reputation.

Where the accused cannot possibly

face more than six months'

imprisonment, we have held that

these disadvantages, onerous

though they may be, may-be

outweighed by the benefits that

result from speedy and inexpensive

nonjury adjudications.

399 U.S. at 73 (emphasis added). The fact

that a conviction for possession of

marijuana may affect future employment

possibilities and the ability to obtain

some professional licenses does not warrant

the classification of this offense as

anything other than a petty offense not

involving moral turpitude.

Unquestionably, the problem of illegal

drugs is of national concern. Governmental

agencies in Arizona and across the nation

are working to eliminate the problems

attendant to drugs--addiction, accidents,

medical costs, etc. However, these facts

do not transform a possession of marijuana

charge into an offense involving moral

turpitude. I feel that the severity of the

potential penalty and the moral quality of

the offense, taken together, are

insufficient to render possession of

marijuana, charged as A class 1

misdemeanor, a serious offense warranting

a jury trial under Arizona law.

3. Conclusion

HPUUPU UEP EU UERPURREeeeeeboe

In Blanton, the Court indicated that it

would look primarily to the actions of the

legislature in fixing the maximum penalty

for a crime to determine whether the crime

was sufficiently serious to warrant a jury

trial, and stated: "The judiciary should

not substitute its judgment as_ to

seriousness for that of a legislature. .

-" 109 S.Ct. at 1292. This court has

also indicated that its determination of a

crime's seriousness is guided by the

legislature, stating that "the maximum

statutory penalty is the most relevant

objective criteria in determining a

defendant's Sixth Amendment right to a jury

CEiG@i «. « « e*©6=6Beee, 126 Aris. eat 273,

614 P.2d at 815.

In light of these judicial

pronouncements, it would be appropriate for

the legislature, in setting sanctions

De ee ee ee

imposable for conviction of crimes, to

indicate that particular offenses, such as

misdemeanor possession of marijuana or

first-offense DUI, should not be tried

before a jury. Assuming the

constitutionality of the statute were

challenged, this court could then face

squarely the constitutional issues

concerning a defendant's right to a jury

trial.

Robert J. Corcoran, Justice

ai if tf tt HMHHHHHAnnniiiiiicin

APPERDI&

(11)

HHO E ES oA

IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

STATE OF ARIZONA,

(Filed by Clerk

Petitioner/ April 19, 1988

Appellant, Court of

Appeals,

¥. Division Two)

THE CITY COURT OF

THE CITY OF TUCSON, the) 2 CA-CV 87-

HONORABLE CARMEN DOLNY,) 0351

a Magistrate thereof; ) 2 CA-CV 87-

THE SUPERIOR COURT OF 0353

THE STATE OF ARIZONA, (Consolidated)

COUNTY OF PIMA, the

HONORABLE JOHN HAWKINS,

a judge thereof,

Respondents, Department B

and

TIMOTHY HARING,

)

}

Real Party in )

Interest/Appellee. ) OPINION

)

STATE OF ARIZONA,

Petitioner/

Appellant,

Vv.

THE CITY COURT OF THE

CITY OF TUCSON, the

HONORABLE MARGARITA

BERNAL, a Magistrate

thereof; THE SUPERIOR

HUEEPEERP EYE EPUUUUUR EEUU aaa

COURT OF THE STATE OF

ARIZONA, COUNTY OF

PIMA, the HONORABLE

THOMAS MEEHAN, a judge

thereof,

Respondents,

and

MARVIN LITTLES,

Real Party in

)

}

Interest/Appellee. )

)

APPEAL FROM THE SUPERIOR COURT OF PIMA

COUNTY

Cause Nos. 245298 and 245299

Honorable Thomas Meehan, Judge and

Honorable John Hawkins, Judge

VACATED AND REMANDED

Frederick S. Dean, City Attorney

by L. Michael Anderson and M.J. Raciti,

Tucson

Attorneys for Petitioner/Appellant

DUNSCOMB AND SHEPHERD, P.C.

by Denice R. Shepherd, Tucson

Attorneys for Real Parties in Interest/

Appellees

ROLL, Judge

MH UU EEUU

In these unrelated cases, ‘*he state

appeals the decisions of two Tucson city

magistrates granting jury trials for two

defendants charged with misdemeanor

possession of marijuana. For the reasons

set forth below, we conclude that the

possibility of six months' incarceration

and/or a $1000 fine as punishment for the

class 1 misdemeanor of unlawful possession

of marijuana does not require a trial by

jury.

FACTS

1. Marvin Littles (Cause No. 245298, 2 CA-

CV 87-0352)

On August 29, 1987, Marvin Littles was

arrested for drinking in public in Tucson,

Arizona. A police officer found a baggie

of marijuana and some rolling papers in

Littles' pocket. Littles was cited for

unlawful possession of marijuana pursuant

MUUUNEUVUEURUUUUUUUUeUueeeeuadu

to A.R.S. § 13-3405 and for drinking in

public, a violation of A.R.S. § 4-244, both

misdemeanor charges. On September 8, 1987,

over the State's objection, a city

magistrate set the matter for a jury trial

to commence December 3, 1987.

2. Timothy Haring (Cause No. 245299, 2 CA-

CV 87-0351)

On August 19, 1987, Haring was arrested

by Tucson police officers after the police

learned that Haring was named in

outstanding misdemeanor warrants for: (1)

driving under the influence of intoxicating

liquor (DUI); (2) drivng (sic) while having

a blood alcohol content of more than .10%,

and (3) failure to appear regarding the

preceding charges. The arrest resulted in

the discovery of marijuana, and Haring was

charged with’ unlawful possession of

marijuana, a class 1 misdemeanor. On

LTO.

August 20, 1987, the city magistrate set

the matter for jury trial.

The state filed petitions for special

action in both matters and relief was

denied. These consolidated appeals

followed.

ISSUES Pp

The sole issue on appeal is whether

Littles and Haring are entitled to jury

trials for their respective misdemeanor

charges of possession of marijuana.

DISC 8)

Unlawful possession of marijuana may be

either a class 6 felony or a class 1

misdemeanor. The parties te this appeal

agree that the charges against Littles and

‘HHHUHRHHHPREHEUPEPYPPEee eer iooooe

' A class

Haring are class 1 misdemeanors.

1 misdemeanor is punishable by up to 6

months! incarceration and/or a $1000 fine.

A.R.S. § 13-802(A).

In Duncan v. Louisiana, 391 U.S. 145, 88

S.Ct. 1444, 20 L.Ed.2d 491 (1968), the

Supreme Court held that the Sixth

Amendment, as applied to the states through

the Fourteenth Amendment, requires that

persons accused of serious crimes. be

afforded the right to trial by jury and

reaffirmed the well-established rule that

petty offenses may be tried without a jury.

In determining whether an offense is a

petty offense, both the maximum possible

period of imprisonment and the maximum

‘While the prosecutor may choose to

pursue class 6 felony charges against

an individual arrested for possession of

marijuana, in the consolidated cases

- before us, the city prosecutor was

pursuing misdemeanor penalties only.

possible fine must be considered.

The Supreme Court has announced that "no

offense can be deemed 'petty' for purposes

of the right to trial by jury where

imprisonment for more than six months is

authorized." Baldwin v. New York, 399 U.S.

66, 69, 90 S.Ct. 1886, 1888, 26 L.Ed.2d

437, 440 (1970) (footnote omitted).

However, the Supreme Court has declined to

state precisely when a potential fine

renders an offense "serious" such that the

matter must be tried to a jury. Muniz v.

Hoffman, 422 U.S. 454, 477, 95 S.Ct. 2178,

2191, 45 L.Ed.2d 319, 335 (1975).

Until 1984, federal law provided that

the maximum punishment for a petty offense

was a $500 fine and/or six months'

imprisonment. 18 U.S.C. § 1(3). In United

States v. Hamdan, 552 F.2d 276 (9th Cir.

.1977), the Ninth Circuit stated that "ijt

is not unrealistic to treat any fine in

excess of $500 as a serious matter to all

individuals ...." Id. at 280. However,

in a footnote, the court stated:

The value of money changes,

of course, as does the wealth of

the economy. But Congress can be

expected to adjust the monetary

standard of [18 U.S.C.] section

1(3) so that it will continue to

represent a fair judgment as to the

appropriate line between petty and

serious offenses.

* * -

Whether [18 U.S.C.] §1(3)

reflects an appropriate referent

in determining the constitutional

standard in light of future changes

in the value of money or in future

amendments of the statute will, of

course, remain a question for the

courts to determine. (Citation

omitted. )

552 F.2d at 280 n.3. Our supreme court has

previously rejected the Ninth Circuit's

pronouncement in Hamdan that offenses

punishable by more than a $500 fine must be

tried to a jury, concluding that Hamdan was

based upon 18 U.S.C. §1(3). State ex rel.

sed

rr"

Baumert v. Superior Court, 127 Ariz. 152,

155, 618 P.2d 1078, 1081 (1980).

In 1984, Congress raised the maximum

fine for petty offenses from $500 to $5000.

Criminal Fine Enforcement Act of 1984,

Pub.L. No. 98-596, § 8, 98 Stat. 3134, 3138

(1984).

Haring and Littles argue that the recent

Ninth Circuit decision of Rife 7.

Godbehere, 814 F.2d 563, amended 825 F.2d

185 (9th Cir. 1987) stands for’ the

proposition that an offense punishable by

a $1000 fine is a serious offense requiring

a jury trial. Rife was denied a jury trial

after being charged with three counts of

unlawful use of a telephone to terrify,

intimidate, threaten, annoy, or harrass in

violation of A.R.S. § 13-2916, a class 1

misdemeanor. Rife filed a habeas corpus

petition, claiming that his constitutional

right to a jury trial had been denied. The

Ninth Circuit held: "Rife was charged with

a Class I misdemeanor, punishable by up to

a $1,000 fine. Ariz. Rev. Stat. Ann. §13-

802(A). Therefore, the crime charged was

serious, and he was entitled to a jury

trial." Id., 814 F.2d at 565. The Ninth

Circuit later concluded in its amended

opinion that the 1984 amendment to 18

U.S.C. § 1(3) was irrelevant to its

decision since Rife committed the offenses

before the federal petty offense maximum

fine was increased from $500 to $5000.

id., 825 F.2G@ at i185.

The matters before us, of course, arose

after the 1984 amendment to 18 U.S.C. §

1(3). Congress has, as the Ninth Circuit

predicted in Hamdan, raised the maximum

fine for federal petty offenses. It would

seem incongruous that in federal court, a

petty offense with no right to a trial by

jury is now punishable by a fine of up to

$5000 while in state court, an otherwise

petty offense has become a serious offense

triable by a jury, because the maximum fine

is $1000. We do not believe that Rife

retains vitality in view of the 1984

Amendment of 18 U.S.C. § 1(3).

Our supreme court has stated that three

factors must be considered in determining

whether a defendant has a constitutionally

guaranteed right to a jury trial: (1) the

severity of the possible penalty; (2) the

relation of the offense to common law

crimes; and (3) whether the act involves

moral turpitude. weiler v.

Court, 100 Ariz. 37, 410 P.2d 479 (1966);

S . De Vv j ° ,

141 Ariz. 361, 362, 687 P.2d 369, 370 (App.

1984); Spronken v. City Court of City of

Tucson, 130 Ariz. 62, 63-64, 633 P.2d 1055,

1056-57 (App. 1981). The supreme court has

rejected the notion that a penalty of six

months’ incarceration and a $1000 fine are

so serious as to require a jury trial.

State ex rel. Baumert v. Superior -Court : ’

supra. The parties cite us to no

authority, nor do we find a common law

counterpart to the offense of unlawful

possession of marijuana. Regarding moral

turpitude, we agree with the comment by

Division One of this court in State v.

Moreno, 134 Ariz. 199, 655 P.2d 23 (App.

1982):

Without the benefit of in-depth

research, the majority is not

prepared to say that in today's

society the [offense of

possession of marijuana] involves

such an appreciable degree of moral

turpitude (branding the defendant

"a depraved and inherently base

person") beyond that present in

convictions for disorderly conduct

(engaging “in fighting, violent or

seriously disruptive behavior"),

. » » drunk and disorderly conduct,

or assault and battery,

in all of which the Arizona

courts have held that the defendant

was not entitled to a jury trial.

(Citations omitted.)

134 Ariz. at 202, 655 P.2d at 26.

In State ex rel. Dean v. City Court of

Tucson, supra, 141 Ariz. at 363, 687 P.2d

at 371, this court held that no jury trial

was necessary for a charge of reckless

driving, stating:

Finally, we do not believe

that reckless driving is today

considered to be "an act of such

obvious depravity that to

characterize it as a petty offense

would be to shock the general moral

sense." , ° - We find it

impossible to distinguish this

offense from those which have been

held in the following cases to

involve no moral turpitude

(sale of alcoholic beverages to

mixsors) ; ° , F (disorderly

conduct); .. . (simple assault) ;

(simple assault and battery) ;

(possession of marijuana);

(carrying a concealed weapon) ;

(Citations omitted.)

We hold that none of the three factors

we must consider requires that Haring and

HHUHHUUHB HUH HR URE E RR

Littles be afforded jury trials as to the

present misdemeanor charges of unlawful

possession of marijuana.

Haring argues that the combination of

charges pending against him mandates a jury

trial. The record is unclear as to which

charges Haring will face at trial in

addition to the charge of unlawful

possession of marijuana. Haring is

entitled to a jury trial for the two

original DUI charges, Rothweiler v.

Superior Court of Pima County, supra,

although he is not entitled to a jury trial

on the misdemeanor marijuana charge. If

these charges are joined for trial, he

will, of course, receive a jury trial on

the marijuana charge by virtue of that

charge being joined with charges for which

he is entitled to a jury trial. If

severance of the marijuana charge is

PU CREECH P eee

granted pursuant to Rule 13.4 Ariz. R.

Crim. P., 17 A.R.S., Haring will not be

entitled to a jury trial for the single

charge of unlawful possession of marijuana.

Littles' case significantly differs from

that of Haring's in that Littles' unlawful

possession of marijuana charge is not

presently joined with other - offenses

requiring a jury trial. Accordingly,

unlike Haring's case, no question of a

possible necessity for severance is

presented. The briefs of the parties

indicate that Mr. Littles was originally

charged with drinking in public. and

unlawful possession of marijuana. In Bruce

¥. Beate, i126 Arig. 271, G34 8.26 833

(1980), the supreme court held that "where

a defendant is charged with several petty

offenses, factually related or arising out

of a single event, there is no

SHH tee HAE

constitutional requirement of a jury trial

but the actual punishment may not exceed

that which would be permissible without a

jury trial in case of a single offense."

126 Ariz. at 272, 614 P.2d at 814. Byruce

is determinative of the outcome and Littles

is not entitled to a jury trial.

We vacate the orders granting jury

trials oon the respective charges of

unlawful possession of marijuana and remand

these matters for disposition in accordance

with this opinion.

JOHN M. ROLL, Judge

CONCURRING:

JOSEPH M. LIVERMORE, Presiding Judge

LLOYD FERNANDEZ, Judge

COUPEE UE REPRE EERE HHRURBR RR

FREDERICK S. DEAN

City Attorney

M.J. Raciti

Chief City Prosecutor

P.O. Box 27210

Tucson, AZ 85726

791-4104

| Pima Co. Computer No. 46324

) IN THE SUPERIOR COURT

) OF THE STATE OF ARIZONA

| iN AND FOR THE COUNTY OF PIMA

| STATE OF ARIZONA,

Petitioner, NO. 245298

| vs. (Tucson City

Court Cause

) THE CITY COURT OF THE No. 1668293)

CITY OF TUCSON, the

| HONORABLE MARGARITA

BERNAL, a Magistrate

| thereof,

JUDGMENT

Respondent,

| and

(Hon. Thomas

) MARVIN LITTLES, Meehan)

| Real Party in

Interest.

(Div. 16)

me er ee ee ee ee ee ee See”

This matter having come regularly for

| hearing; the Court having reviewed the

| memorandum of counsel, the Court finds that

BHUTTO UUEEURUU RPGR REAR

the City Magistrate did not abuse her

discretion in granting the Defendant a

trial by jury on the pending charges.

IT IS HEREBY ORDERED, adjudged and

decreed as follows:

il. Petititoner's Request for Special

Action is DENIED.

2. Matter is remanded to City Court for

all further proceedings.

3. ORDERED that all further matters in

this case are stayed pending a decision by

Division 2 of the Court of Appeals.

DATED this 2nd day of November, 1987.

By:

Thomas Meehan

Judge of Superior Court

Division 16

OUD UU UDC D HOR REReeeea

ARIZONA SUPERIOR COURT, PIMA COUNTY

Judge: Thomas Meehan

Case No.: C-245298

Date: October 26, 1987

STATE OF ARIZONA

vs.

THE CITY COURT OF THE

CITY OF TUCSON, et al

AND MARVIN LITTLES

MINUTE ENTRY

AMENDED MINUTE ENTRY:

In Minute Entry dated October 13, 1987,

paragraph three, the word "use" should be

deleted and the word “abuse” should be

inserted.

cc: Hon. Thomas Meehan

City Prosecutor Bromley

Dunscomb & Shepherd

Court of Appeals Division 2,

Tucson, Arizona

By:

Carlene Price

Deputy Clerk

HHHRBRHEHPO HORE RR HE ED

ARIZONA SUPERIOR COURT, PIMA COUNTY

Judge: Thomas Meehan

Case No.: C-245298

Date: October 13, 1987

STATE OF ARIZONA

vs.

THE CITY COURT OF THE

CITY OF TUCSON, et al

AND MARVIN LITTLES

wParmrvuvtTse BW TRY

CIVIL OSC:

Counsel argues to the Court.

THE COURT FINDS it has jurisdiction to

hear the State's Special Action; the Court

having reviewed the memorandum of counsel,

THE COURT FINDS the City Magistrate did

not use her discretion in_- granting

defendant a trial by jury on the pending

charges.

IT IS ORDERED Petitioner's request for

special action is denied and remanded to

EGER REE REE EEE ee

City Court for all further proceedings.

IT IS FURTHER ORDERED that all further

matters in the case be stayed pending a

decision by Division 2 of the Court of

Appeals.

cc: Hon. Thomas Meehan

City Prosecutor Bromley

Dunscomb & Shepherd

Court of Appeals Division 2,

Tucson, Arizona

By:

Carlene Price

Deputy Clerk

MHHURHHEU ERE BE HHHE HHH HHH

TUCSON CITY COURT

State of Arizona, Plaintiff

vs.

Marvin Littles

Docket #8775868

Citation #1669293-4

MINUTE ENTRY

The matter is stayed pending a decision

by the Court of Appeals.

DATED: October 26, 1987

Signed by: Judge L. Gallagher

PHHHP RHR HEE EE EEE

TUCSON CITY COURT

State of Arizona, Plaintiff

vs.

Marvin Littles

Docket #8775868

Citation #1668293-4

ACKNOWLEDGMENT OF TRIAL DATE

I hereby acknowledge the trial (jury)

date of December 3, 1987 at 8:15 a.m.

I understand that I have a criminal

charge and if I fail to appear at the

date and time shown, a warrant may be

issued for my arrest, and the trial

could be held without me.

DATED: (Not dated)

Marvin Littles

2721 E. Sixth St.

Tucson, Ariz. 85716

326-5195

POOQDMNHODNN ONAN

FREDERICK S. DEAN

City Attorney

M.J. Raciti

Chief City Prosecutor

P.O. Box 27210

Tucson, AZ 85726

791-4104

Pima Co. Computer No. 46324

IN THE SUPERIOR COURT

OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF PIMA

STATE OF ARIZONA,

Petitioner, NO. 245299

vs. (Tucson City

Court Cause

THE CITY COURT OF THE No. 1614834)

CITY OF TUCSON, the

HONORABLE CARMEN

DOLNY, a Magistrate

thereof,

JUDGMENT

Respondent,

and

(Judge Hawkins)

TIMOTHY HARING, (Division 17)

Real Party in

Interest.

me ee ee ee ee ee ee ee eee ee ee See”

This matter having come regularly before

this Court for hearing in the form of a

Special Action; the Court having heard

OO T GGT C aaa

arguments of counsel; having considered

relevant case law; having read briefs of

counsel for Petitioner and Real Party in

Interest and having taken the matter under

advisement, finds as follows:

zi The Honorable Judge Carmen Dolny,

Magistrate of the City Court, granted a

jury trial to Real Party in Interest,

Timothy Haring, on a charge of violating

A.R.S. § 13-3405.

2. From that ruling, the Petitioner

brings this Special Action contending Judge

Dolny's decision was arbitrary and

capricious or that she abused her

discretion in granting the jury trial.

3. The Court has considered the

relevant case law and arguments of counsel

and while concluding that a jury trial is

not mandated, finds that Judge Dolny's

granting a jury trial was not arbitrary or

PO OOD DONO NEO 0 0 aH

capricious nor was it an abuse of her

discretion.

WHEREBY IT IS ORDERED that the requested

relief is denied and this matter is

remanded to City Court for all further

proceedings.

DATED this 2nd day of November, 1987.

By:

John G. Hawkins

Judge of Superior Court

Division 17

DQODM NNO

ARIZONA SUPERIOR COURT, PIMA COUNTY

Judge: John G. Hawkins

Case No.: 245299

Date: October 14, 1987

STATE OF ARIZONA

vs.

CITY COURT, HON. CARMEN

DOLNY and

TIMOTHY HARING

wBawewte BRzR YT

U/A RULING RE SPECIAL ACTION:

Hon. Carmen Dolny, Magistrate of the

City Court, granted a jury trial to the

Real Party in Interest, Timothy Haring, on

a charge of violating A.R.S. § 13-3405.

From that ruling the Petitioner brings this

special action contending that Judge

Dolney's decision was’ arbitrary and

Capricious or that she abused her

discretion in granting the jury trial.

This Court has considered the relevant

DOOD OAA ADT AOT AAA

case law and arguments of counsel and while

concluding that a jury trial is not

mandated finds that Judge Dolney's granting

a jury trial was not arbitrary and

capricious nor was it an abuse of her

discretion.

IT IS ORDERED that the requested relief

is denied and this matter remanded to City

Court for all further proceedings.

cc: City Prosecutor - Raciti

Denice Shepherd, Esq. -

Dunscomb & Shepherd

Hon. John G. Hawkins

U/A Clerk

City Court (No. 1614834)

By:

Rhonda Rutledge

Deputy Clerk

POQOCDDGPOTODO DOTA Aaa

APPENDIX (iii)

TUDO TTG GCC EEC Ueda

SUPREME COURT

State of Arizona

201 West Wing State Capitol

1700 West Washington

Phoenix, Arizona 85007-2866

Telephone: (602) 542-4536

NOEL K. DESSAINT

Clerk of Court

KATHLEEN E. KEMPLEY

Chief Deputy Clerk

September 26, 1989

RE: STATE OF ARIZONA vs. TUCSON CITY COURT

HONORABLE CARMEN DOLNY et al

Supreme Court No. CV-88-0272-PR

Court of Appeals No. 2 CA-CV 87-0351

& 2 CA-CV 87-0353 (Consl.)

Pima County No. 245299 & 245298

GREETINGS:

The following action was taken by the

Supreme Court of the State of Arizona on

September 19, 1989, in regard to the above-

referenced cause:

ORDERED: Application for Permission to

File Brief as Amicus Curiae = DENIED.

FURTHER ORDERED: Motion for

Reconsideration = DENIED.

Justice Corcoran voted to grant.

Mandate enclosed.

NOEL K. DESSAINT, Clerk

THE EEE EEE aa

TO:

Frederick S. Dean, Tucson City Attorney,

P.O. Box 27210, Tucson, Tucson, AZ

85726-7210 ATTN: William F. Mills,

Esq. and Christopher L. Straub, Esq.

Denice R. Shepherd, Esq., Dunscomb

& Shepherd, 177 N. Church, Suite 310,

Tucson, AZ 85701

Kevin R. Hays, Esq., Mesa City

Prosecutors Office, 245 W. 2nd St.,

P.O. Box 1466, Mesa AZ 85211-1466

SSH h Tae

SUPREME COURT OF ARIZONA

STATE OF ARIZONA

Supreme Court

No. CV-88-0272-

Petitioner/

Appellant,

Vs.

CITY COURT OF THE CITY

OF TUCSON, HONORABLE

CARMEN DOLNY, a

Magistrate thereof;

SUPERIOR CQURT OF THE

STATE OF ARIZONA,

COUNTY OF PIMA,

HONORABLE JOHN HAWKINS,

a judge thereof,

MANDATE

Respondents,

and

TIMOTHY HARING,

Real Party in

Interest/Appellee.

STATE OF ARIZONA,

Petitioner/

Appellant,

vs.

CITY COURT OF THE CITY

OF TUCSON, HONORABLE

MARGARITA BERNAL, a

Magistrate thereof;

SUPERIOR COURT OF THE

STATE OF ARIZONA,

COUNTY OF PIMA,

ll ld dd de de a a ee ee ee ee ee ee el ee

HHHHHHH HE EBRBREPA TATA AAA

HONORABLE THOMAS

MEEHAN, a judge

thereof,

Respondents,

ee eee ee ee eee eee”

and

MARVIN LITTLES,

Real Party in

Interest/Appellee.

ee ee ee ee eee ee”

STATE v. TUCSON CITY COURT et al

Supreme Court No. CV-88-0272-PR

Court of Appeals Nos. 2 CA-CV 87-0351

& 2 CA-CV 87-0353

Pima County Nos. 245298 & 245299

MANDATE

TO: The Honorable Superior Court for

Pima County, Arizona, in relation

to Cause Nos. 245298 and 245299.

GREETINGS:

The above cause was presented in your

Court and was brought before the Court of

Appeals, Division Two, Nos. 2 CA-CIV 87-

0351 and 2 CA-CV 87-0353 (consolidated), in

the manner prescribed by law. That court

rendered its Opinion and caused the same to

MARR RRRE PEER RR AAA AAA

be filed on the 19th day of April, 1988.

A Petition for Review was granted by

this Court on the 27th day of September,

1988. This Court rendered its Opinion and

caused the same to be filed on the 15th day

of June, 1989.

A Motion for Reconsideration was timely

filed and was denied by Order of this Court

on the 19th day of September, 1989.

NOW, THEREFORE, YOU ARE COMMANDED that

such proceedings be had in said cause as

shall be required to comply with the

Opinion of this Court, a copy of the

Opinion being attached hereto.

WITNESS, THE HONORABLE FRANK X. GORDON,

JR., Chief Justice of the Supreme Court of

the State of Arizona, this 27th day of

September, 1989.

NOEL K. DESSAINT

Clerk of Court

BERR ARREE EEE RAR AAA

TO:

Frederick S. Dean, Tucson City Attorney

Attn: Christopher L. Straub, Esq. and

William F. Mills, Esq.

Denice R. Shepherd, Esq., Dunscomb &

Shepherd

Kevin Hays, Chief Assistant Mesa City

Prosecutor

Hon. Carmen Dolny, Tucson City Court

Hon. Margarita Bernal, Tucson City Court

Hon. John G. Hawkins, Judge, Pima County

Superior Court

Hon. Thomas Meehan, Presiding Judge,

Pima County Superior Court

Ronald L. Zimmerman, Tucson City

Court Administrator

Sue Evans, Pima County Court

Administrator (with copy of Opinion)

Joyce Goldsmith, Clerk, Court of

Appeals, Division Two

West Publishing Company

Mead Data Central

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