City of Aurora by and on Behalf of People of State of Colo. v. Erwin, 82-1317

• Decision Date: 29 April 1983
• Docket Number: No. 82-1317,82-1317
• Citation: 706 F.2d 295
• Parties: CITY OF AURORA, By and on Behalf of the PEOPLE OF the STATE OF COLORADO, Plaintiff-Appellee, v. Samuel Mansford ERWIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 295

706 F.2d 295

CITY OF AURORA, By and on Behalf of the PEOPLE OF the STATE

OF COLORADO, Plaintiff-Appellee, v. Samuel Mansford ERWIN, Defendant-Appellant.

No. 82-1317.

United States Court of Appeals, Tenth Circuit.

April 29, 1983.

James D. Evans, Aurora, Colo., for defendant-appellant.

Patrick E. Koealeski, City Atty., and Debra B. Demirali, Asst. City Atty., Aurora, Colo., for plaintiff-appellee.

Before SETH, Chief Judge, and McKAY and SEYMOUR, Circuit Judges.

McKAY, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 10(e). The cause is therefore ordered submitted without oral argument.

Samuel Erwin is employed as a United States postman in Aurora, Colorado. He was charged with a petty offense under a municipal ordinance following an altercation that occurred in the course of his employment. ¹ He removed the criminal proceeding from the city's municipal court to federal district court pursuant to the provisions of 28 U.S.C. Sec. 1442(a)(1) (1976). ² The district court, 533 F.Supp. 457, referred the case to the federal magistrate ³ who tried it and found the defendant guilty. Mr. Erwin appealed the case to the district court, ⁴ which rejected the six issues he raised as meritless. ⁵ He brings the same issues here.

We agree with the district court that the first five claims are without legal merit. However, the sixth claim raises an important issue under the federal removal provisions of 28 U.S.C. Sec. 1442(a)(1). In this claim, Mr. Erwin asserts that the magistrate erred in denying his timely demand for a jury trial. He argues that Colorado law provides him with an absolute right to a jury trial that he retains upon removal of his criminal proceeding to federal court. In resolving this claim, we examine the scope of the federal court's jurisdiction under section 1442(a)(1) and the nature of the right to a jury trial provided by Colorado law.

I

Section 1442(a)(1) grants a right of removal to federal officers who face litigation in state court as a result of actions taken in the course of their official duties. 28 U.S.C. Sec. 1442(a)(1). Of particular interest in this case, it provides a federal forum to United States officers whose conduct under color of federal law results in criminal prosecution under state law. Id. The Supreme Court has long recognized removal to federal courts in these circumstances as a matter of considerable importance to the United States. See Arizona v. Manypenny, 451 U.S. 232, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981); Willingham v. Morgan, 395 U.S. 402, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969); Tennessee v. Davis, 100 U.S. 257, 25 L.Ed. 648 (1880). Consequently, the Court has held that the right to removal for conduct performed under color of federal office is absolute, and has insisted that the policy favoring removal " 'should not be frustrated by a narrow, grudging interpretation of Sec. 1442(a)(1).' " Manypenny, 451 U.S. at 242, 101 S.Ct. at 1664 (quoting Willingham, 395 U.S. at 407, 89 S.Ct. at 1816).

Although the right to removal is absolute, the consequences of removal are circumscribed by the scope of the jurisdiction granted the federal courts by section 1442(a)(1). In Arizona v. Manypenny, the Supreme Court explained the limited scope of the federal court's authority in these removal cases, stating that section 1442(a)(1) is intended to provide a forum free from local interests and prejudice in which the federal officer can assert immunity defenses based on official conduct. Id. 451 U.S. at 241-42, 101 S.Ct. at 1663-1664. In light of this limited purpose, the removal of a state criminal proceeding under section 1442(a)(1) does not result in a general preemption of state law; instead, "the federal court conducts the trial under federal rules of procedure while applying the criminal law of the state." Id. at 241, 101 S.Ct. at 1664. The Court further explained that

the invocation of removal jurisdiction by a federal officer does not revise or alter the underlying law to be applied. In this respect, it is a purely derivative form of jurisdiction, neither enlarging nor contracting the rights of the parties. Federal involvement is necessary in order to insure a federal forum, but it is limited to assuring that an impartial setting is provided in which the federal defense of immunity can be considered during prosecution under state law.

Id. at 242, 101 S.Ct. at 1664 (emphasis added, footnote omitted). Thus, a federal court exercising jurisdiction under section 1442(a)(1) serves as an alternative forum in a manner roughly analogous to its role in diversity cases, applying state law through the mechanism of its own procedural rules. ⁶

As experience in diversity cases has shown, this bifurcation of state and federal authority does not resolve all conflicts between state and federal law. See Walker v. Armco Steel Corp., 446 U.S. 740, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980); Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965). See generally, Ely, The Irrepressible Myth of Erie, 87 Harv.L.Rev. 693 (1974). In particular, while it is clear that federal procedural law supplants conflicting state procedural law, a problem remains in distinguishing between state law that is procedural and state law that is nonprocedural in nature. Mr. Erwin's claim that he is entitled to a jury trial presents this problem in the context of removal under section 1442(a)(1). Although the determination of whether the state-created right is procedural or nonprocedural constitutes a federal question, the determination is informed by the state's purpose in granting the particular right. We therefore look to whether Colorado grants the right to a jury trial in petty offense prosecutions for procedural or nonprocedural reasons. ⁷

II

We recognize at the outset that a state might provide a right to a jury trial in petty offense cases for either procedural or nonprocedural reasons, or indeed to serve both purposes. On the one hand, a state might provide jury trials strictly to promote procedural fairness and efficiency, concluding that juries enhance the reliability of the fact-finding process and protect the defendant from a biased or capricious judge. See Duncan v. Louisiana, 391 U.S. 145, 155-57, 88 S.Ct. 1444, 1450-1451, 20 L.Ed.2d 491 (1968) (alluding to these functions). On the other hand, a state may provide a right to a jury trial to further nonprocedural goals of special significance in criminal trials. For instance, a state may guarantee a right to jury trial in order to provide the defendant an opportunity for jury nullification, see United States v. Dougherty, 473 F.2d 1113, 1130-36 (D.C.Cir.1972) (recognizing the power of the jury to nullify rules of law), or to provide the defendant with the sense of moral vindication that results from presenting his case to a jury of his peers, see Ely, supra, at 725-26 (noting that nonprocedural purposes include "the fostering and protection of certain states of mind"). Thus, there exist both procedural and nonprocedural interests that a state might plausibly wish to advance in providing a right to a jury trial.

Colorado's statutory provision of the right to a jury trial in petty offense cases represents a legislative reaction to the Colorado Supreme Court's interpretation of the state constitution. The Colorado Constitution provides that the accused shall have the right to a trial by an impartial jury in criminal prosecutions. Colo.Const. art. II, Secs. 16 & 23. In 1969 the Colorado Supreme Court concluded that the state constitutional guarantee did not extend to criminal prosecutions of petty offenses. Austin v. City of Denver, 170 Colo. 448, 462 P.2d 600, cert. denied, 398 U.S. 910, 90 S.Ct. 1703, 26 L.Ed.2d 69 (1970). Within months, the Colorado General Assembly reacted to the Austin decision by enacting a statute specifically providing that "[a] defendant charged with a petty offense shall be entitled to a jury trial." Colo.Rev.Stat. Sec. 16-10-109(2) (1978). In enacting the statute, the assembly explicitly denied municipal courts the power to abridge this right through local court rules, stating as follows:

The general assembly finds that the right to a trial by jury for petty offenses is of vital concern to all of the people of the state of Colorado and that the interests of the state as a whole are so great that the general assembly shall retain sole legislative jurisdiction over the matter, which is hereby declared to be of statewide concern.

Colo.Rev.Stat. Sec. 13-10-101 (1973). See also Colo.Mun.Ct.R.P. 223 ("[t]rial shall be to the court, unless the defendant is entitled to a jury trial under constitution, ordinance, charter, or general laws of the state").

In interpreting Colorado's statutory right to a jury trial for petty offenses, the Colorado Supreme Court has consistently stated that the provision embodies a "substantive right." Garcia v. People, 200 Colo. 413, 615 P.2d 698, 699-700 (1980); Hardamon v. Municipal Court, 178 Colo. 271, 497 P.2d 1000, 1002-03 (1972). By describing the right as "substantive," the court apparently contemplates that the right has nonprocedural attributes. ⁸ Consistent with this inference, the court has held that this statutory right cannot be abridged on account of the forum in which the petty offense is tried. In Hardamon, the court rejected contentions that because the Colorado Constitution gave home rule cities the power to create and regulate their own courts, they could ignore the statutory requirement, stating that since

the right to a jury in petty offense cases is a substantive right granted to all of the citizens of the state, without regard to the place where the offense may have occurred or the court in which trial may be held, we find no merit to appellees' argument that home rule...