Crowell v. Jejna

• Decision Date: 21 June 2007
• Docket Number: No. 1 CA-CV 06-0430.,1 CA-CV 06-0430.
• Citation: 215 Ariz. 534,161 P.3d 577
• Parties: Erin CROWELL, Petitioner/Appellant, v. Honorable Orest JEJNA, Scottsdale City Court Judge, Respondent Judge, Scottsdale City Prosecutor's Office, Real Party in Interest/Appellee.
• Court: Arizona Court of Appeals

161 P.3d 577

215 Ariz. 534

Erin CROWELL, Petitioner/Appellant, v. Honorable Orest JEJNA, Scottsdale City Court Judge, Respondent Judge Scottsdale City Prosecutor's Office, Real Party in Interest/Appellee.

No. 1 CA-CV 06-0430.

Court of Appeals of Arizona, Division 1, Department A.

June 21, 2007.

Law Offices of Neal W. Bassett, By Neal W. Bassett, Phoenix, Laurie A. Herman Attorney at Law, By Laurie A. Herman, Ballecer & Segal LLP, By Natalee Segal, Scottsdale, Attorneys for Petitioner/Appellant.

Deborah Robberson, Scottsdale City Attorney, By Kenneth M. Flint, Assistant City Prosecutor, Scottsdale, Attorneys for Real Party in Interest/Appellee.

Law Offices of O. Joseph Chornenky, P.C., By O. Joseph Chornenky, Phoenix, Weston, Garrou, DeWitt & Walters, By John H. Weston, G. Randall Garrou, Los Angeles, Attorneys for Amici.

OPINION

JOHNSEN, Judge.

¶ 1 Appellant Erin Crowell dances in what the Scottsdale City Code calls an "adult service business." Crowell is alleged to have violated three ordinances that forbid "adult service providers" from performing without a permit, forbid "adult service providers" from performing less than three feet from a "patron" and forbid a "patron" from placing "any money on the person or in or on the costume" of a performer. Crowell argues the Arizona Constitution guarantees her a jury trial on these offenses and appeals from the superior court's denial of her special action. For the reasons set forth below, we hold that Crowell is not entitled to a jury trial and therefore affirm the superior court's order remanding the case for a bench trial.

BACKGROUND

¶ 2 Crowell was cited for violating Scottsdale City Code ("S.C.C." or "Code") sections 16-242(a) and 16-247(d), (l). Each of the cited offenses is a class one misdemeanor punishable by either a fine up to $2,500 or no more than six months' imprisonment. S.C.C. § 16-257(a).

¶ 3 Each of the three code provisions Crowell is accused of violating applies to "providers" of any "adult service," which the Code defines as

dancing, service of food or beverages, modeling, posing, wrestling, singing, reading, talking or listening, or other performances or activities conducted for any consideration in an adult service business by a person who is nude during all or part of the time that the person is providing the service.

S.C.C. § 16-237.¹ Crowell was cited for violating S.C.C. § 16-242(a), which states, "A person may not work as an adult service provider unless the person has first obtained an adult service provider permit under this article."² She also was cited for violating S.C.C. § 16-247(d), which states:

A person may not provide an adult service in an adult service business except upon a stage elevated at least eighteen (18) inches above floor level. All parts of the stage, or a clearly designated area thereof within which the adult service is provided, shall be a distance of at least three (3) feet from all parts of a clearly designated area in which patrons may be present. The stage or designated area thereof shall be separated from the area in which patrons may be located by a barrier or railing the top of which is at least three (3) feet above floor level. A provider or patron may not extend any part of his or her body over or beyond the barrier or railing.

Finally, Crowell was cited for violating S.C.C. § 16-247(l), which states, "A patron may not place any money on the person or in or on the costume of an adult service provider while the adult service provider is nude."

¶ 4 After the Scottsdale City Court denied Crowell's request for a jury trial, Crowell filed a special action pursuant to Arizona Rules of Procedure for Special Actions 1 and 4. The superior court accepted jurisdiction but denied relief. This appeal followed.

DISCUSSION

¶ 5 "If the superior court accepts jurisdiction and determines the merits of a special-action petition, we review whether the court abused its discretion by its grant or denial of relief. Because eligibility for a jury trial is a question of law, however, we independently determine the merits" of such a request. Ottaway v. Smith, 210 Ariz. 490, 492, ¶ 5, 113 P.3d 1247, 1249 (App.2005) (citations omitted).

¶ 6 To determine whether a defendant is entitled to a jury trial under our state constitution, we apply a two-step analysis. Derendal v. Griffith, 209 Ariz. 416, 425, ¶¶ 36-37, 104 P.3d 147, 156 (2005) (overruling Rothweiler v. Superior Court, 100 Ariz. 37, 410 P.2d 479 (1966)); see Fushek v. State of Arizona, 215 Ariz. 274, 276, ¶¶ 6-7, 159 P.3d 584, 586 (App.2007). The analysis is in two steps because "[t]wo separate provisions of the Arizona Constitution secure the right to jury trial for certain criminal defendants." Derendal, 209 Ariz. at 419, ¶ 7, 104 P.3d at 150.

¶ 7 Article 2, Section 23, of the Arizona Constitution provides that "[t]he right of trial by jury shall remain inviolate." To decide whether a defendant has a right to a jury trial under this provision, we must determine whether the offense of which the defendant is accused "has a common law antecedent that guaranteed a right to trial by jury at the time of Arizona statehood." Derendal, 209 Ariz. at 425, ¶ 36, 104 P.3d at 156. We apply this analysis because Section 23 does not create a right to trial by jury; instead, it preserves whatever "right that existed at common law prior to statehood." Hon. George T. Anagnost, Trial by Jury and "Common Law" Antecedents, Ariz. Att'y, Nov. 2007, at 38, 39; see Derendal, 209 Ariz. at 419, ¶ 8, 104 P.3d at 150.³

¶ 8 If no jury trial right is found within Section 23, we turn to Article 2, Section 24, of the Arizona Constitution, which provides that "[i]n criminal prosecutions, the accused shall have the right to ... a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed." Because Section 24 is Arizona's "analog to the Sixth Amendment," we follow decisions of the United States Supreme Court in analyzing the "seriousness" of the offense to determine whether a jury must be offered. Derendal, 209 Ariz. at 425, ¶ 37, 104 P.3d at 156 (discussing Blanton v. City of N. Las Vegas, 489 U.S. 538, 109 S.Ct. 1289, 103 L.Ed.2d 550 (1989)); see Fushek, 215 Ariz. at 276, ¶ 7, 159 P.3d at 586. Under this analysis, we presume that no jury right attaches if the lawmaker has defined the offense to be a misdemeanor punishable by no more than six months' incarceration. Derendal, 209 Ariz. at 425, ¶ 37, 104 P.3d at 156. "A defendant may rebut this presumption, however, by demonstrating that the offense carries additional severe, direct, uniformly applied, statutory consequences that reflect the legislature's judgment that the offense is serious." Id.

¶ 9 As noted, the offenses of which Crowell is accused all carry separate penalties of no more than six months in jail. Crowell does not contend that the ordinances carry additional consequences that might render them so serious as to warrant a jury trial pursuant to Article 2, Section 24, of the Arizona Constitution. Accordingly, the issue is whether, under Section 23 of the constitution, the charged offenses have a "common law antecedent that guaranteed a right to trial by jury at the time of Arizona statehood." Id. at 425, ¶ 36, 104 P.3d at 156.

¶ 10 In determining whether there is a common-law, jury-eligible antecedent to a modern offense, we compare the character of the modern offense with that of the common-law offense. Id. at 419, ¶ 10, 104 P.3d at 150 ("We have further held that when the right to jury trial for an offense existed prior to statehood, it cannot be denied for modern statutory offenses of the same `character or grade.'" (quoting Bowden v. Nugent, 26 Ariz. 485, 488, 226 P. 549, 550 (1924))).

¶ 11 The court in Derendal cited several cases as examples of modern crimes with common-law antecedents. Id. at 419-20 & n. 4, ¶¶ 11-12, 104 P.3d at 150-51 & n. 4. In Bowden, "a defendant charged with operating a poker game in violation of a city ordinance was entitled to a jury trial because the charge was similar in character to the common law crime of conducting or maintaining a gambling house and the elements of the crimes were substantially similar." Id. at ¶ 11, 104 P.3d 147 (citing Bowden, 26 Ariz. at 490, 226 P. at 550). Likewise, in Urs v. Maricopa County Attorney's Office, a charge of reckless driving, defined as "driv[ing] a vehicle in reckless disregard for the safety of persons or property," was similarly akin in "character" to the common-law offense of "operating a motor vehicle so as to endanger [any] property [or] individual." Id. at 420, ¶ 12, 104 P.3d at 151 (alterations in original) (discussing Urs, 201 Ariz. 71, 74, ¶ 10, 31 P.3d 845, 848 (App.2001)).

¶ 12 The court also cited with apparent approval the case of City Court v. Lee, 16 Ariz.App. 449, 452, 494 P.2d 54, 57 (1972) which held that a defendant charged with violating a city ordinance prohibiting all-nude dancing was entitled to be tried by a jury. 209 Ariz. at 420 n. 4, ¶ 12, 104 P.3d at 151 n. 4. The Derendal court observed that the common-law offense of indecent exposure was "a direct antecedent" of the city ordinance at issue. Id. (citing Lee, 16 Ariz.App. at 452, 494 P.2d at 57).⁴

¶ 13 In determining whether the offenses at issue in this case share the character of a common-law antecedent, we focus on the elements of the offenses. "We regard a jury-eligible, common law offense as an antecedent of a modern statutory offense when the modern offense contains elements comparable to those found in the common law offense." Id. at 419, ¶ 10, 104 P.3d at 150; see id. at 420, ¶ 11, 104 P.3d at 151 (noting that elements of the modern crime in Bowden were "substantially similar" to the historical offense).

¶ 14 Crowell argues that, like the Tucson ordinance at issue in Lee, the Scottsdale City Code provisions she is accused of violating have as their common-law antecedent the crime of indecent exposure,...