Goldman v. Kautz, No. 11823

• Court: Supreme Court of Arizona
• Writing for the Court: STRUCKMEYER; LOCKWOOD; CAMERON
• Citation: 531 P.2d 1138,111 Ariz. 431
• Parties: Sidney Jay GOLDMAN, Petitioner, v. The Honorable Harold L. KAUTZ, Judge of the City Court, City of Phoenix, Maricopa County, Arizona, the Hon. Paul W. LaPrade, Judge of the Superior Court, Maricopa County, Arizona; and the STATE of Arizona, Real Party in Interest, Respondents.
• Decision Date: 13 February 1975
• Docket Number: No. 11823

Page 1138

531 P.2d 1138 111 Ariz. 431 Sidney Jay GOLDMAN, Petitioner,
v.
The Honorable Harold L. KAUTZ, Judge of the City Court, City of Phoenix, Maricopa County, Arizona, the Hon. Paul W. LaPrade, Judge of the Superior Court, Maricopa County, Arizona; and the STATE of Arizona, Real Party in Interest, Respondents. No. 11823. Supreme Court of Arizona, In Banc. Feb. 13, 1975.

Hash, Cantor & Tomanek by Terry B. Kiser, Phoenix, for petitioner.

Joe R. Purcell, Phoenix City Atty. by Michael D. House, Asst. City Atty., Phoenix, for respondents.

Page 1139

[111 Ariz. 432] STRUCKMEYER, Vice Chief Justice.

In this special action, petitioner seeks to compel the Honorable Harold L. Kautz, Judge of the City Court of the City of Phoenix, to grant him a trial by jury on the charge of simple assault and battery. We accepted jurisdiction pursuant to the Constitution of Arizona, Article 6, § 5, A.R.S., and Rule 2 of Special Actions, Rules of Procedure, 17A A.R.S. After further consideration, we have concluded that the petition should be ordered dismissed and it is so ordered.

Petitioner was charged in the City Court of the City of Phoenix with willfully and unlawfully using force and violence on the person of another, a violation of a state statute, A.R.S. § 13--241(B). He timely requested a jury trial, which was denied by the respondent, Judge Kautz. He then petitioned the Superior Court of Maricopa County, asking for a jury trial which was denied, and this special action was brought.

The denial of a jury trial for offenses the punishment for which does not exceed a $300 fine nor six months in jail does not present a federal constitutional question. Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed. 491 (1968). Nor does the Arizona Constitution, Article 2, § 23, reading: 'The right of trial by jury shall remain inviolate.' require a jury trial in petty offenses. Rothweiler v. Superior Court, 100 Ariz. 37, 410 P.2d 479 (1966); State v. Cousins, 97 Ariz. 105, 397 P.2d 217 (1964).

Justices of the peace had jurisdiction at the common law before 1776 to punish simple assaults and simple assaults and batteries summarily without indictment and without trial by jury. State v. Maier, 13 N.J. 235, 99 A.2d 21 (1953). Absent other constitutional requirements, a defendant who did not have the right to trial by jury at the common law does not have the right to such a trial in Arizona under state law for violations of state offenses. O'Neill v. Mangum, 103 Ariz. 484, 445 P.2d 843 (1968).

Petitioner relies on A.R.S. § 22--320, arguing that he is entitled to a jury trial if he demands it. Section 22--320 provides:

'A trial by jury shall be had if demanded by either the state or defendant. Unless the demand is made before commencement of the trial, a trial by jury shall be deemed waived.'

We do not think the quoted section grants a substantive right, but, rather, was intended to be procedural and must be read as meaning that a trial by jury shall be had if demanded In cases where a jury trial is appropriate. If the Legislature intended to grant a jury trial in every case, it would have no doubt said so in plain, explicit language.

The foregoing would be sufficient answer to petitioner's position were the question presented for the first time to this Court. But this is not the first time we have been called upon to examine into the question propounded. In O'Neill v. Mangum, Supra, we considered whether a defendant charged with drunk and disorderly, a misdemeanor and a violation of A.R.S. § 13--379, was entitled to a jury trial. There we said:

'Defendant's contentions are neither novel nor sustainable. It is old law that the constitutional right to trial by jury does not extend to petty offenses.' 103 Ariz. at 485, 445 P.2d at 844.

and concluded that the offense charged was one which was within the category of petty offenses not requiring a jury trial.

This is not such a case as dictates the overruling of a former precedent. It is to be acknowledged the law should grow and the doctrine...