City of Pasco v. Mace, 48544-5

Decision Date10 November 1982
Docket NumberNo. 48544-5,48544-5
Citation653 P.2d 618,98 Wn.2d 87
PartiesThe CITY OF PASCO, Respondent, v. Deloy E. MACE, Petitioner, Robert A. Gerhard, Defendant.
CourtWashington Supreme Court

Bennet, Acycock & Steele,

Katherine M. Steele, Richland, for petitioner.

Greg A. Rubstello, City Atty., Pasco, for respondent.


The petitioner was charged in municipal court with the offense of soliciting for prostitution, in violation of Pasco Municipal Code § 9.12.010. He filed a written demand for a jury trial, which was denied. He was tried by the municipal judge and given a 6-months' deferred sentence and 5 days in jail, 4 of which were suspended. On appeal to the superior court, he argued that RCW 35A.20.040 (defining the jurisdiction and powers of the police judge) was invalid after the promulgation of the Rules for Appeal of Decisions of Courts of Limited Jurisdiction (RALJ), which do not provide for review de novo in the superior court. His theory was that he is entitled to a jury trial, inasmuch as the offense subjects him to a possible jail sentence, and he is now denied a jury trial in both the municipal and superior courts. The trial court rejected his contention, finding that his was a petty offense and that the constitution does not guarantee a right to jury trial for such offenses.

A petition to the Court of Appeals for discretionary review was certified to this court to determine whether a defendant has a constitutional right to a jury trial in certain actions brought in municipal court, and what impact the new RALJ has upon that right.

Prior to the adoption of these rules, persons tried in the Pasco Municipal Court pursuant to RCW 35A.20.040 and 35.22.560, had a right of appeal with a trial de novo. At the outset we must acknowledge that if the petitioner had a constitutional right to a jury trial, that right was not sufficiently protected by the statutes. Although this court in Bellingham v. Hite, 37 Wash.2d 652, 225 P.2d 895 (1950) held that a defendant tried in municipal court without benefit of a jury was accorded his constitutional right by an appeal de novo, that case was decided without reference to Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223 (1888). 1 In the latter case, the United States Supreme Court had held that the federal jury trial guaranty was not satisfied by affording a jury on appeal, if none was provided in the first instance. The pertinent language of article 3, section 2 of the United States Constitution ("The trial of all crimes ... shall be by jury") is substantially the same as that of our state constitution, article 1, section 22 ("In criminal prosecutions the accused shall have the right to ... have a speedy public trial by an impartial jury"). There is no difference which would justify a holding that a jury trial is required in the first instance under the federal constitution but not under the state constitution.

In State ex rel. O'Brien v. Towne, 64 Wash.2d 581, 392 P.2d 818 (1964), we noticed the flaw in the Bellingham holding, and in Seattle v. Filson, 98 Wash.2d 66, 653 P.2d 608 (1982), we held directly that the state constitution protects the right to a jury at the trial level, rather than at the appellate level. Consequently, to grant a jury trial at the appellate level but not at the trial level does not satisfy the constitution's demands. We must now determine whether the constitutional guaranty operates with respect to the petitioner's offense.

It was recognized by the United States Supreme Court in Callan v. Wilson, supra, as it was by this court in State ex rel. Belt v. Kennan, 25 Wash. 621, 66 P. 62 (1901); Bellingham v. Hite, supra; State ex rel. O'Brien v. Towne, supra; and George v. Day, 69 Wash.2d 836, 420 P.2d 677 (1966), that there is a class of "petty offenses" to which the constitutional jury trial guaranties do not apply.

In State ex rel. Belt v. Kennan, supra, this court held that the constitutional right of trial by jury is not impaired by the summary trial and punishment of a person for the violation of a city ordinance against disorderly conduct, since such constitutional guaranty does not extend to petty and minor offenses. The court quoted the following from J. Dillon, Municipal Corporations § 433 (4th ed.1890):

"Violations of municipal by-laws proper such as fall within the description of municipal police regulations, as for example those concerning markets, streets, waterworks, city officers, etc., and which relate to acts and omissions that are not embraced in the general criminal legislation of the state, the legislature may authorize to be prosecuted in a summary manner by and in the name of the corporation, and need not provide for a trial by jury. Such acts and omissions are not crimes or misdemeanors to which the constitutional right of trial by jury extends."

Kennan, 25 Wash. at 625, 66 P. 62.

The offense in that case was disorderly conduct, and the maximum penalty was a fine of $50. No jail sentence was provided.

The offense involved in Bellingham v. Hite, supra was driving while intoxicated. The defendant was fined $175 and sentenced to 14 days in jail. This court did not find it necessary to decide whether the offense was of such a minor nature as to justify summary trial before a single judge, but rather held that the constitutional requirement was satisfied by a trial de novo on appeal. As we have observed, that holding was unsound.

Nine traffic offenders were respondents in State ex rel. O'Brien v. Towne, supra. The opinion does not reveal whether there were possible jail sentences attached to these offenses, and the question whether an offense carrying such a possible punishment can ever be termed petty under the state constitution, was not raised. In fact it was tacitly conceded that the offenses were of the class termed "petty". The central question in the case was whether the equal protection of the laws was denied by the statute, which dispensed with a jury trial in criminal cases involving violations of city ordinances.

The defendant in George v. Day, supra was charged with drunk driving and reckless driving, for which the maximum punishment which a police court could impose was a fine of $300 or imprisonment for not more than 90 days. Only four judges viewed this as a petty offense. Three concurred in the result, adopting the theory of Bellingham v. Hite, supra, without noticing the conflict between that holding and the Supreme Court's analysis in Callan v. Wilson, supra. Judge Finley wrote a dissent, joined by Judge Hunter.

The dissenters believed that because of the severity of the possible sentence (including the loss of the defendant's driver license), the offense could not be deemed "petty". See also Seattle v. Rohrer, 69 Wash.2d 852, 420 P.2d 687 (1966), decided in the same manner. The United States Supreme Court, in District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177 (1930), said that reckless driving, so as to endanger property and individuals, is malum in se and of a serious character, amounting to a public nuisance indictable at common law, and that such a charge involves a crime for which a jury trial must be made available under the federal constitution. 2 That view accords with that of the five judges in George v. Day, supra and Seattle v. Rohrer, supra, who did not regard reckless driving as a petty offense.

It will be seen that, while it has said that not all offenses require a jury trial under the state and federal constitutions, and has held in one case that the offense of disturbing the peace is "petty" where the maximum penalty prescribed is a fine of $50, this court has never attempted to delineate the kind of offenses which are exempt from the jury trial requirement.

Some opinions of the United States Supreme Court have moved in the direction of defining the meaning of "petty offense", for purposes of determining the scope of the federal right to jury trial.

Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223 (1888) involved a labor union conspiracy to boycott a member who refused to pay a fine imposed by the union. The members of the conspiracy were fined $25 and given a jail term of 30 days. Conspiracy was held to be a serious crime because of its "grave character, affecting the public at large." Callan, at 556, 8 S.Ct. at 1307.

In our opinion, the provision is to be interpreted in the light of the principles which, at common law, determined whether the accused, in a given class of cases, was entitled to be tried by a jury. It is not to be construed as relating only to felonies, or offences punishable by confinement in the penitentiary. It embraces as well some classes of misdemeanors, the punishment of which involves or may involve the deprivation of the liberty of the citizen.

Callan, at 549, 8 S.Ct. at 1303.

The Court said that it has been the custom to confer summary jurisdiction upon justices of the peace for the trial and conviction of parties for "minor and statutory" offenses.

It indicated that summary proceedings were allowable even though they involve imprisonment in the county jail, provided it is for a brief and limited period.

The Court alluded to the

many adjudged cases, arising under [state] constitutions which declare, generally, that the right of trial by jury shall remain inviolate, there are certain minor or petty offences that may be proceeded against summarily, and without a jury; and, in respect to other offences, the constitutional requirement is satisfied if the right to a trial by jury in an appellate court is accorded to the accused.

Callan, at 552, 8 S.Ct. at 1304.

The Court, however, did not discuss the latter class of cases or approve the practice. What it did hold was that, except in that class of offenses called petty, which according to the common law can be proceeded against summarily in any tribunal legally constituted for that purpose, the guaranty...

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