Ottaway v. Smith

• Decision Date: 30 June 2005
• Docket Number: No. 1 CA-CV 04-0815.,1 CA-CV 04-0815.
• Citation: 210 Ariz. 490,113 P.3d 1247
• Parties: Richard OTTAWAY, Petitioner/Appellant, v. The Honorable Richard SMITH, Judge of the Phoenix Municipal Court, Respondent Judge, The Phoenix City Prosecutor's Office, Real Party in Interest/Appellee.
• Court: Arizona Court of Appeals

113 P.3d 1247

210 Ariz. 490

Richard OTTAWAY, Petitioner/Appellant, v. The Honorable Richard SMITH, Judge of the Phoenix Municipal Court, Respondent Judge, The Phoenix City Prosecutor's Office, Real Party in Interest/Appellee.

No. -0815.

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

June 30, 2005.

Neal W. Bassett, Otilia M. Diaz, and Ballacer & Segal By Natalee E. Segal, Phoenix, Attorneys for Petitioner/Appellant.

Office of the Phoenix City Prosecutor By B. Don Taylor, III, Assistant City Prosecutor, Phoenix, Attorneys for Real Party in Interest.

OPINION

EHRLICH, Judge.

¶ 1 The Office of the Phoenix City Prosecutor charged Richard Ottaway with interfering with a judicial proceeding. See Ariz.Rev.Stat. ("A.R.S.") § 13-2810(A)(2) (2003). Ottaway asked that this charge be tried to a jury, a motion denied by the municipal court and special-action relief denied by the superior court. For reasons that follow, we affirm.

BACKGROUND

¶ 2 According to its complaint, the Phoenix City Prosecutor charges that Ottaway "knowingly disobeyed or resisted the lawful order, process or mandate of [the Phoenix Municipal Court]" in violation of A.R.S. § 13-2810(A)(2). Section 13-2810, entitled "Interference with Judicial Proceedings," proscribes six different forms of interference with judicial authority, including the one with which Ottaway was charged. See A.R.S. § 13-2810(A).¹ The statute classifies the commission of any of these forms of judicial interference as a class 1 misdemeanor. A.R.S. § 13-2810(B).

¶ 3 At common law, a defendant typically did not have the right to a jury trial for a "petty offense," and neither the United States nor the Arizona Constitution provide a right to a jury trial but, instead, simply preserve a defendant's common-law right to a trial by jury of "serious offenses." See, e.g., Goldman v. Kautz, 111 Ariz. 431, 432, 531 P.2d 1138, 1139 (1975)

(citing Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)). Nonetheless, Ottaway asked the Phoenix Municipal Court to try this judicial-interference charge to a jury. The court denied this motion, and Ottaway sought special-action relief from the superior court. See, e.g., State ex rel. McDougall v. Strohson (Cantrell), 190 Ariz. 120, 121, 945 P.2d 1251, 1252 (1997) ("[T]he issue of entitlement to a jury trial is an issue properly brought via special action.") (citing Spitz v. Phoenix Mun. Ct., 127 Ariz. 405, 406, 621 P.2d 911, 912 (1980)).

¶ 4 In reviewing Ottaway's special-action petition, the superior court concluded that the charge of "judicial interference" is "not an offense involving moral turpitude," that the penalties for the offense "are those of a class 1 misdemeanor" and that the charged offense presented "no grave or serious consequences flowing [from] a finding of guilt. . . ." See, e.g., Benitez v. Dunevant, 198 Ariz. 90, 91-92

¶¶ 4-5, 7 P.3d 99, 100-01 (2000) (citing State ex rel. Dean v. Dolny, 161 Ariz. 297, 778 P.2d 1193 (1989), and Rothweiler v. Superior Court (City of Tucson), 100 Ariz. 37, 410 P.2d 479 (1966)). The court thus concluded that Ottaway was not entitled to have the judicial-interference charge tried by a jury and denied him relief. Ottaway then appealed to this court.

ANALYSIS

¶ 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. See, e.g., Files v. Bernal (State), 200 Ariz. 64, 65

¶ 2, 22 P.3d 57, 58 (App.2001) (citing Hamilton v. Mesa Mun. Ct., 163 Ariz. 374, 788 P.2d 107 (App.1989)). Because eligibility for a jury trial is a question of law, however, we independently determine the merits of Ottaway's request. See Urs v. Maricopa County Attorney's Office, 201 Ariz. 71, 72 ¶ 2, 31 P.3d 845, 846 (App. 2001).

¶ 6 To support his demand for a jury trial, Ottaway alleges disparate treatment due to the provisions of A.R.S. § 13-2810 compared with other legal provisions that apply to allegations of contempt of judicial authority. For example, he asserts that the conduct proscribed by § 13-2810(A)(2), "knowingly... [d]isobey[ing] or resist[ing] the lawful order, process or other mandate of a court," also meets the definition of "criminal contempt" found in A.R.S. § 12-861 (2003),² and yet, unlike § 13-2810, § 12-863 permits a jury trial of such charges at the defendant's request. See A.R.S. § 12-863(A) (2003). Ottaway further contends that the definition of criminal contempt in the Arizona Rules of Criminal Procedure applies to his alleged conduct.³ Like A.R.S. § 12-861, but, again, unlike Title 13, the Rules of Criminal Procedure require a jury trial of contempt charges in certain situations. See Ariz. R.Crim. P. 33.4(a). Because these provisions proscribe similar conduct but only § 13-2810 fails to provide for a jury trial under any circumstances, Ottaway insists that the denial of a jury trial of charges pursuant to § 13-2810(A)(2) is fundamentally unfair and violates principles of constitutional law. His reasoning is flawed, however, and, thus, we reject his constitutional arguments.

¶ 7 First, Ottaway's claim that A.R.S. § 12-861 and § 13-2810 apply to the same conduct is patently incorrect. Although the conduct proscribed by § 13-2810(A)(2) and § 12-861 may appear similar, § 12-861 has an additional requirement not found in § 13-2810: In order for § 12-861 to apply, the allegedly contemptuous conduct not only must violate a court order, see Pace v. Pace, 128 Ariz. 455, 457, 626 P.2d 619, 621 (App. 1981),

the conduct also must constitute a crime in itself. See A.R.S. § 12-861 ("the act or thing done [must] constitute[ ] a criminal offense . . ."). Thus § 12-861 "is limited in scope to criminal contempts [that] are also crimes," State v. Verdugo, 124 Ariz. 91, 94, 602 P.2d 472, 475 (1979), and, if the contemptuous conduct constitutes a crime, the State proceeds against the defendant pursuant to § 12-861 et seq. Vanguard Eng'g by Phelan v. Superior Court (Tharp), 166 Ariz. 405, 408 n. 2, 803 P.2d 126, 129 n. 2 (App.1990); see also State v. Cohen, 15 Ariz.App. 436, 439-41, 489 P.2d 283, 286-88 (App.1971) (construing contempt proceeding as one pursuant § 12-861 because contemptuous action was allegation of criminal activity). Cf. Riley v. Superior Court, 124 Ariz. 498, 499, 605 P.2d 900, 901 (App.1979) ("If a contempt is criminal, but not within the bounds of [A.R.S. § 12-861], i.e., the contemptuous act is not a criminal offense by itself, the provisions of ... [the] Arizona Rules of Criminal Procedure... are applicable.").

¶ 8 Second, although the language of A.R.S. § 13-2810 is much more consistent with that found in Arizona Rule of Criminal Procedure ("Rule") 33 than in A.R.S. § 12-861, Rule 33 provides little basis to argue for disparate treatment. Rule 33 only requires a jury trial if the defendant's potential punishment exceeds six months' incarceration or a fine in excess of $300 or both. Given that a violation of § 13-2810 is a class 1 misdemeanor, see A.R.S. § 13-2810(B), and that the maximum sentence of incarceration for such an offense is six months, see A.R.S. § 13-707(A)(1) (2001), the only case in which a defendant has a greater opportunity to a jury trial pursuant to Rule 33 than pursuant to § 13-2810 is when the potential fine exceeds $300.⁴

¶ 9 But, even if Rule 33 provides a greater right to a jury trial than does A.R.S. § 13-2810 for the same proscribed conduct, such an incongruity would not violate the Arizona Constitution. Assuming that Ottaway would have been entitled to a jury trial in a Rule 33 proceeding, his situation does not differ from a defendant whose class 6 felony is re-designated a class 1 misdemeanor. See A.R.S. § 13-702(G) (Supp.2003). In State v. Quintana, 195 Ariz. 325, 326 ¶¶ 2-3, 987 P.2d 811, 812 (App.1999), this court reviewed the propriety of the State's re-designation of trespass allegations, following a mistrial, from a felony to a misdemeanor, which thereby deprived the defendant of a new jury trial on the trespass allegations. This court upheld the re-designation as a proper exercise of the State's discretion, id. at 326 ¶ 7, 987 P.2d at 812, despite the fact that this action eliminated the defendant's right to a second jury trial on the allegations. Id. at 327 ¶¶ 9-10, 987 P.2d at 813 (citing A.R.S. § 13-702(G) (Supp. 1999)).

¶ 10 Ottaway's separation-of-powers argument is without merit, see, e.g., State v. Larson, 159 Ariz. 14, 17, 764 P.2d 749, 752 (App.1988)

(rejecting separation-of-powers argument because of its failure to demonstrate how either "the legislature []or the executive has ... begun exercising powers `properly' belonging to either of the other branches of government"), and his reference to Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), to support his claim that the right to jury trial is a "procedural" right is inapposite. As previously explained, the right to a jury trial for a particular charge existed substantively at common law. Goldman, 111 Ariz. at 432,

531 P.2d at 1139. Because of its substantive and common-law origins, the legislative and executive departments have powers that determine a defendant's right to a jury trial: "The legislature has the exclusive power to declare what the law shall be," which necessarily includes the power to "determine[ ] what is a crime and what punishment may be exacted for its breach," and "the executive branch has the power to decide what criminal charges to file." State v. Prentiss, 163 Ariz. 81, 85, 786 P.2d 932, 936 (1989). See also State v. Donald, 198 Ariz. 406, 416 ¶ 36, 10 P.3d 1193, 1203 (App.2000) (recognizing that "government necessarily entails some blending of powers and that `absolute independence of the branches of government and complete separation of powers is impracticable.'") (quoting J.W. Hancock Enter. Inc. v. Ariz. Registrar of Contractors, 142 Ariz. 400, 405, 690 P.2d 119, 124 (App.1984)),

cert....