State v. Chapman

• Decision Date: 28 June 1991
• Docket Number: No. 65649,65649
• Parties: STATE of Kansas, Appellee, v. Timothy C. CHAPMAN, Appellant.
• Court: Kansas Court of Appeals

Page 449

814 P.2d 449

15 Kan.App.2d 643

STATE of Kansas, Appellee, v. Timothy C. CHAPMAN, Appellant.

No. 65649.

Court of Appeals of Kansas.

June 28, 1991.

Syllabus by the Court

1. An amendment to K.S.A. 22-3404, effective July 1, 1990, which eliminated the right to a jury trial in a traffic infraction case, cannot be applied retroactively to deny an accused the right to a jury trial for an offense committed prior to the effective date of the amendment.

2. The fundamental rule is that a statute operates prospectively unless its language clearly indicates that the legislature intended it to operate retroactively. An exception to the fundamental rule is that if the statutory change does not prejudicially affect the substantive rights of the parties and is merely procedural or remedial in nature, it applies retroactively.

3. In general terms, substantive law is that which creates duties, rights, and obligations, while procedural or remedial law prescribes methods of enforcement of rights or obtaining redress.

4. K.S.A. 77-201 provides in part that the repeal of a statute does not affect any right which accrued, any duty imposed, any penalty incurred, or any proceeding commenced under or by virtue of the statute repealed.

Harold T. McCubbin of Harold T. McCubbin, Chartered, Norton, for appellant.

Steven W. Hirsch, County Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before BRAZIL, P.J., RULON, J., and DAVID S. KNUDSON, District Judge, Assigned.

RULON, Judge:

Timothy C. Chapman, defendant, appeals his conviction for speeding (K.S.A.1990 Supp. 8-1336), claiming that he was denied his right to trial by jury. We reverse and remand for further proceedings.

The material, undisputed facts are as follows:

On March 23, 1990, Chapman was issued a traffic citation for driving 73 miles per hour in a 55 mile per hour zone in Decatur County. On April 18, 1990, Chapman filed a demand for jury trial.

K.S.A.1989 Supp. 22-3404(1), effective at the time of the offense, provided:

"The trial of misdemeanor and traffic infraction cases shall be to the court unless a jury trial is requested in writing by the defendant not later than seven days after first notice of trial assignment is given to the defendant or such defendant's counsel. The time requirement provided in this subsection regarding when a jury trial shall be requested may be waived in the discretion of the court upon a finding that imposing such time requirement would cause undue hardship or prejudice to the defendant."

The 1990 Kansas Legislature amended 22-3404, adding the following language: "The trial of traffic infraction cases shall be to the court." L.1990, ch. 109, § 1; K.S.A.1990 Supp. 22-3404(5). The amended law became effective on July 1, 1990.

On July 31, 1990, the district court sent a letter to counsel saying:

"Pursuant to Senate Bill 629, infractions are now tried to the Court with the exception of cases with the possibility of imprisonment or a fine over $500. Therefore, the above referenced case shall be a trial to the Court and is scheduled for August 22, 1990 at 9 a.m. in the Decatur County Courthouse."

At trial, Chapman's counsel renewed his request for a jury trial. The district court again denied the request, saying:

"The Court would find that the issue in question is a procedural question and not a substantive right, and it's procedural. The time and place of trial is the one which controls. So, the Court finds that the Legislature intended that it's appropriate that a jury trial is not awarded in this case. Further, the United States Supreme Court affirmed the Florida statute which was similar in nature, which did not require jury trials in those cases which had penalties of less than six months in jail or $1,000.00 fine, I believe. So, the motion is noted and denied."

Chapman contends that the new version of K.S.A. 22-3404 should not be applied retroactively to deny him a right to jury trial for an offense committed in March 1990. Our Supreme Court recently restated the law of prospective versus retroactive application of statutes in State v. Sutherland, 248 Kan. 96, 106, 804 P.2d 970 (1991):

"The fundamental rule is that a statute operates prospectively unless its language clearly indicates that the legislature intended it to operate retroactively. State v. Hutchison, 228 Kan. 279, 287, 615 P.2d 138 (1980). An exception to the fundamental rule is that if the statutory change does not prejudicially affect the substantive rights of the parties and is merely procedural or remedial in nature, it applies retroactively. 228 Kan. at 287 ."

The question present here is whether Chapman's right to a jury trial is substantive or procedural. At the outset, it should be noted that the right to trial by jury is guaranteed by both the United States and Kansas Constitutions. U.S. Const. Amendment 6; Kan. Const. Bill of Rights, § 5. In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, reh. denied 392 U.S. 947, 88 S.Ct. 2270, 20 L.Ed.2d 1412 (1968), the United States Supreme Court held that trial by jury was a fundamental right which must be preserved by the states under the due process clause of the Fourteenth Amendment. The Duncan court said:

"Because we believe that trial by jury in criminal cases is fundamental to the American scheme of justice, we hold that the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which--were they to be tried in a federal court--would come within the Sixth Amendment's guarantee." 391 U.S. at 149, 88 S.Ct. at 1447.

Chapman concedes that the legislature has the power to make jury trials unavailable in the case of traffic infractions. He notes the recent case of Blanton v. North Las Vegas, 489 U.S. 538, 109 S.Ct. 1289, 103 L.Ed.2d 550 (1989), which stated:

"It has long been settled 'that there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision.' [Citations omitted.] ... The judiciary should not substitute its judgment as to seriousness for that of a legislature, which is 'far better equipped to perform the...