State v. Richey, 1

• Decision Date: 12 April 1988
• Docket Number: No. 1,CA-CIV,1
• Citation: 158 Ariz. 298,762 P.2d 585
• Parties: STATE of Arizona, Plaintiff-Appellee, v. Rodney RICHEY, Defendant-Appellant. 9400.
• Court: Arizona Court of Appeals

Page 585

762 P.2d 585

158 Ariz. 298

STATE of Arizona, Plaintiff-Appellee, v. Rodney RICHEY, Defendant-Appellant.

No. 1 CA-CIV 9400.

Court of Appeals of Arizona Division 1, Department B.

April 12, 1988.

Review Granted Sept. 23, 1988.

[158 Ariz. 299] Stephen G. Udall, Apache Co. Atty. by Michael Goimarac, Deputy Co. Atty., St. Johns, for plaintiff-appellee.

Rodney Richey, in prop. per.

OPINION

KLEINSCHMIDT, Judge.

A St. Johns Justice Court found appellant guilty of violating A.R.S. § 28-411(A), driving without an Arizona operator's license, and A.R.S. § 28-302(A), failure to register a vehicle in Arizona. The appellant appealed to the Superior Court of Apache County, which held a trial de novo and once again found appellant guilty of both offenses. Appellant raises four issues on appeal:

1. Does A.R.S. § 28-102(A)(1), which defines "resident" for purposes of registering and operating a vehicle in Arizona, violate the equal protection clause of the fourteenth amendment or unconstitutionally burden the right to travel?

2. Does A.R.S. § 22-220, which disallows jury trials in civil traffic violation cases originating under Title 28, unconstitutionally deprive appellant of his right to a jury trial?

3. Does A.R.S. § 28-1080, which allows a court to declare an entire sanction due if not timely paid and suspend driving privileges until the sanction is paid, unconstitutionally deprive the appellant of procedural due process?

4. Did the trial judge abuse his descretion in awarding attorney's fees to the state?

VEHICLE REGISTRATION AND LICENSING REQUIREMENTS--EQUAL PROTECTION AND THE RIGHT TO TRAVEL

The appellant makes several related claims concerning the constitutionality of A.R.S. § 28-102(A)(1), which defines "resident" for purposes of registering and operating a vehicle in Arizona. In an unclear and often confusing brief, the appellant apparently argues that A.R.S. § 28-102(A) is a durational residency statute that violates the equal protection clause of the fourteenth amendment. Additionally, appellant claims that the statute unconstitutionally burdens his right to travel. We disagree with both claims.

The appellant violated A.R.S. § 28-302(A) and A.R.S. § 28-411(A). Section 28-302(A) provides, in part, that a motor vehicle must be registered in Arizona if the owner is a resident of Arizona. Section 28-411(A) provides that all operators of motor vehicles on Arizona highways who are Arizona residents must have a valid Arizona license, unless expressly exempted by statute. Section 28-102(A), which the appellant claims is unconstitutional, defines "resident":

A. Except as provided by subsection B of this section, 'resident,' for the purpose of registration and operation of motor vehicles, means the following:

1. Any person who, regardless of domicile, remains in this state for an aggregate period of seven months or more during any calendar year.

Appellant claims that the residency definition under A.R.S. § 28-102(A) violates the equal protection clause because the state failed to show that the statute promotes any compelling state interest. He relies on Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), in which the Supreme Court held that a Tennessee residency requirement, that a person could not register to vote unless he had been a state resident for at least one year, violated the equal protection clause because it was unnecessary to promote any compelling state interest. The Court noted that, because the right to travel is a constitutionally protected right, "any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional." Id. at 339, 92 S.Ct. at 1001, 31 L.Ed.2d at 282; see also Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (one-year waiting period for interstate migrants as a condition of receiving welfare benefits held unconstitutional).

However, unlike the statutes held unconstitutional in Blumstein and Shapiro, A.R.S. § 28-102(A)(1) is not a durational residency statute. A durational residency statute is defined as:

[A] requirement that the traveler not only be a state resident but also that he maintain that status for a certain minimum period before qualifying for benefits; it is one which subjects a new resident to a substantial waiting period before he can apply for the benefit involved.

16A C.J.S. Constitutional Law § 480. The Blumstein court noted that durational residency laws "divide residents into two classes, old residents and new residents, and discriminate against the latter...." Blumstein, 405 U.S. at 334, 92 S.Ct. at 999, 31 L.Ed.2d at 279-80.

Section 28-102(A)(1) does not discriminate between old and new residents and thus does not violate equal protection. It does not withhold benefits from new residents for any period of time; instead, it requires all residents to register their motor vehicles and obtain operating licenses.

Appellant also argues that the residency definition under § 28-102(A)(1) unconstitutionally burdens the right to travel by "penalizing" those who remain in Arizona longer than seven months. We disagree. Although we recognize a constitutionally protected right to travel, it is unquestionable that Arizona has the right to prescribe reasonable, uniform vehicle registration and licensing requirements because they are necessary to insure public safety. See Hendrick v. Maryland, 235 U.S. 610, 35 S.Ct. 140, 59 L.Ed. 385 (1915).

RIGHT TO JURY TRIAL

The appellant next claims that he was unconstitutionally deprived of a jury trial by the provisions of A.R.S. § 22-220(B), which prescribes procedure in the justice court. The statute reads:

Either party may demand a jury at any time before trial, and if not then demanded, trial by jury shall be deemed waived. This subsection does not apply to civil traffic violations which are issued under Title 28. (Emphasis added.)

The appellant was found guilty of traffic violations prosecuted under Title 28. One of those offenses, the failure to properly register a vehicle, is clearly defined as a civil traffic violation. A.R.S. § 28-181(B). The other, driving without an Arizona operator's license, also appears to be a civil violation. See A.R.S. § 28-411(A) and A.R.S. § 28-491. The existence of another statute, A.R.S. § 28-471(7), which makes any act forbidden by chapter 4 of Title 28 which includes driving without a license, a Class 2 misdemeanor, raises some question as to whether driving without a license is a criminal or civil offense. Nonetheless, whether the violations are denominated civil or criminal, the appellant is not entitled to a jury trial.

The Civil Standard

In civil cases a party is entitled to a jury trial if the right to such jury trial existed under common law at the time art. II § 23 of the Arizona Constitution, guaranteeing that the right to trial by jury remain inviolate, was adopted. Donohue v. Babbitt, 26 Ariz. 542, 550, 227 P. 995, 997 (1924). The registration of vehicles and the licensing of operators are purely statutory requirements. They are the codification of exact and inflexible rules and have nothing to do with the broad principles which are the subject of common law. See Campbell v. Superior Court, 12 Ariz.App. 398, 400, 470 P.2d 718, 720 (1970); 15A Am.Jur.2d Common Law § 1 (1976). While a person charged with these offenses under the statutes in effect when the constitution was adopted would have had a right to a trial by jury, that right was conferred by statute, not by the common law or the constitution. See A.R.S. civil code, Title 50, § 5137; penal code, Title 22 §§ 1308, 1318 (1913). The appellant has no constitutional right to be tried according to a particular statutory procedure in effect when the constitution was adopted. State v. Roscoe, 145 Ariz. 212, 226, 700 P.2d 1312, 1326 (1984).

The Criminal Standard

It has occurred to us that the legislature could not abrogate the right to a jury trial simply by redefining a crime as a civil offense. But even if we assume the traffic violations are criminal in nature, since the offenses charged are petty offenses the appellant still has no constitutional right to a jury trial. District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843 (1937); O'Neill v. Mangum, 103 Ariz. 484, 445 P.2d 843 (1968). Our supreme court in Rothweiler v. Superior Court, 100 Ariz. 37, 410 P.2d 479 (1966), established guidelines to analyze whether an offense is petty or serious. The Rothweiler court noted that:

In determining whether a crime is a petty offense that constitutionally may be tried without a jury the severity of the penalty inflictable, as well as the moral quality of the act and its relation to common law crimes, must be considered....

Id. at 42, 410 P.2d at 483.

First, we analyze the severity of the maximum penalty. The possible penalty of a six-month jail sentence is not so severe as to require a trial by jury. Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970). Nor is the addition of a $1,000 penalty to the six-month jail sentence. State ex rel. Baumert v. Superior Court, 127 Ariz. 152, 155, 618 P.2d 1078, 1081 (1980); State v. Moreno, 134 Ariz. 199, 201-02, 655 P.2d 23, 25-26 (App.1982).

The maximum penalty for each violation charged against the defendant is less severe than the penalty of $1,000 and six months' imprisonment, which the Baumert court found insufficiently severe to require a trial by jury. Violation of the registration requirements carries a maximum civil sanction of $400. A.R.S. § 28-326(C), (D). Failure to properly license a vehicle, assuming such is a Class 2 misdemeanor, is subject to a maximum penalty of four months' imprisonment and a $750 fine. A.R.S. §§ 13-707, 13-802(B).

When, as in this case, the potential aggregate fine for the two counts is over $1,000, the actual penalty imposed determines whether the offense is "petty." See Rife...