State v. Shak

• Decision Date: 06 March 1970
• Docket Number: 4808,4823,Nos. 4804-4806,s. 4804-4806
• Citation: 466 P.2d 422,51 Haw. 612
• Parties: , 51 Haw. 680 STATE of Hawaii v. Clarence N. S. SHAK.
• Court: Hawaii Supreme Court

Page 422

466 P.2d 422

51 Haw. 612, 51 Haw. 680

STATE of Hawaii v. Clarence N. S. SHAK.

Nos. 4804-4806, 4808, 4823.

Supreme Court of Hawai'i.

March 6, 1970.

Rehearings Denied March 25, 1970.

Syllabus by the Court

1. The defendant was charged with four traffic offenses. The maximum penalty for each was a $200 fine, suspension or revocation of the operator's license, and assessment of traffic penalty points. These were petty offenses, under both the United States Constitution and the Hawaii Constitution, and the defendant did not have a constitutional right to a jury trial.

2. Defendant's argument that, at common law, summary jurisdiction could only be exercised pursuant to specific legislative authorization does not persuade the court; and in any event, legislative authorization is present is this case.

3. The 'right' to jury trial referred to in HRS §§ 604-8 and 604-9 and the 'requirement' of jury trial referred to in H.R.Cr.P. Rule 23 both refer to the constitutional guarantee, in the absence of a specific statutory grant of the right to a jury trial.

4. When a convicted defendant appeals from district court to circuit court for a trial de novo, the standard for determining the right to jury trial is the constitutional standard, just as in determining the right to jury trial in the first instance; and the circuit court judge is not bound by the district magistrate's determination of the right to jury trial, but can and should make an independent determination of that question, if the defendant demands a jury on appeal.

5. The authority to regulate automobile traffic is within the police power of the state.

6. In this case, the police power of the state legislature was properly delegated to the City and County of Honolulu.

Clarence N. S. Shak, in pro. per.

Richard P. Schulze, Jr., and Edward R. Bendet, American Civil Liberties Union, Honolulu, amicus curiae.

John Campbell, Jr., Deputy Pros. Atty., Barry Chung, Pros. Atty., City and County of Honolulu, for respondent.

Before RICHARDSON, C. J., MARUMOTO, ABE, LEVINSON, JJ., and HAWKINS, Circuit Judge, for KOBAYASHI, J., disqualified.

RICHARDSON, Chief Justice.

Defendant-appellant Clarence Shak, hereinafter called defendant, was convicted of four violations of traffic laws ¹ in the District Court of Honolulu. On appeal to the First Circuit Court for trial de novo, he was again convicted, this time after his demand for a jury trial had been refused by the Circuit Court. The maximum possible penalty for each violation was a $200 fine and revocation or suspension of the operator's license of the violator, ² along with possible assessment of traffic penalty points pursuant to HRS § 286-128. Defendant was fined $85 and his license was suspended for ten days, except as necessary for his work. He was assessed three traffic penalty points.

Defendant appeals to this court. He contends first that his demand for a jury trial in Circuit Court should have been granted, and second, that the oridinances he is charged with violating were beyond the police power of the state, and therefore unconstitutional and void. His second contention is wholly without merit. The legislature is clearly empowered to provide for regulation of this type of subject matter and it properly delegated the regulation to the municipality.

As to defendant's first contention, we hold that defendant was not entitled to a jury trial, although we do feel that discussion is warranted.

We consider as possible bases for a right to trial by jury in this case the Constitution of the United States, the Constitution of the State of Hawaii, the Hawaii Revised Statutes, and the inherent rights of persons accused of crime at common law.

As defendant and amicus curiae correctly recognize, the determinative question in ascertaining whether there is a constitutional right to a jury trial in a given case is whether the offense charged is a 'petty' one or a 'serious' one. Neither defendant nor amicus curiae contends that the offenses with which defendant is charged are serious, and they could not successfully do so, given the United States Supreme Court's interpretation of that term. This is the crux of the case.

Under the federal Constitution, the United States Supreme Court has held that two criteria are relevant in determining whether an offense is petty or serious. The first is whether the offense is by its nature serious. If so, the size of the penalty that may be imposed is only of minor relevance, and the right of trial by jury attaches. See Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223 (1888). If the offense is not by its nature serious, however, the magnitude of the potential penalty set for its punishment becomes important, since it is an indication of the ethical judgments and standards of the community. District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177 (1930). In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the Supreme Court held that a maximum potential penalty of two years' imprisonment made the charged offense a serious one. In Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966), where defendant was sentenced to six months' imprisonment for criminal contempt, the Supreme Court held that there was no constitutional right of jury trial. The Court also noted with approval the definition of 'petty offense' set out in 18 U.S.C. § 1, where offenses punishable by six months' imprisonment or less are deemed petty, although there will be some exceptions to that classification for offenses that are by their very nature serious. In the present case, however, no imprisonment can be meted out for punishment, and the offenses themselves are of a petty nature. This makes them petty under either criterion for purposes of constitutional definition.

The Hawaiian counterpart of the 6th amendment to the United States Constitution is Art. I, Sec. 11 of our State Constitution. It is modeled on the 6th amendment, and we have said that in interpreting it we will look to the federal caselaw on the subject as a guide, pursuant to the expressed intent of the draftsmen of our constitution. State v. Wong, 47 Haw. 361, 385, 389 P.2d 439 (1964). This alone would be enough, in our view, to support a finding that the offenses here are petty ones under our constitution, but two of our own past decisions merit attention.

In Territory v. Taketa, 27 Haw. 844 (1924), we held that the offense of teaching without a certificate, in violation of a state statute forbidding the same and providing a maximum penalty of a $25 fine for violations, did not come within the constitutional provisions for jury trial because it was a petty offense. We said that a district magistrate could therefore exercise jurisdiction over the case without a jury, subject of course to appeal. We cited other authorities to the effect that summary trial is constitutionally unobjectionable in prosecution of petty offenses.

Ex Parte Higashi, 17 Haw. 428 (1906), indicated that where the potential penalty for assisting in maintaining a lottery was one year's imprisonment, the defendant was entitled to a jury trial because the size of the penalty made the offense a serious one, although in that case defendant waived his right to a jury by not demanding a jury in the first instance and by failing to appeal and demand one. Higashi also comments that, although because of the penalty the offense charged in that case was a serious one, minor offenses such as violations of municipal ordinances are generally considered petty, and therefore are not generally protected by the constitutional right of jury trial.

Under the United States and Hawaii Constitutions, it is clear that defendant is not entitled to a jury trial, since the offense with which he is charged is constitutionally petty. This is dispositive of defendant's claim to jury trial, since we reject his other contentions. However, since defendant placed great reliance on those other contentions, we feel that some discussion of our reasons for rejecting them is appropriate.

Defendant and amicus curiae argue that even where the Constitution does not require jury trial, summary jurisdiction cannot be exercised except where legislatively authorized. This contention is based on their reading of the history of the common law. Their conclusion, however, is by no means compelled by the authorities they have cited; and even if it were a correct statement of the law, the State of Hawaii in fact has such an authorizing statute, and it was applied in this case.

It may be true, as defendant argues, the at common law summary jurisdiction was generally exercised pursuant to a statute; but this does not mean that it may never be exercised without such a statute. Furthermore, this argument fails to recognize an important difference between the governmental structure of common-law England and the governmental structure of the United States. In England, there was no written constitution, so the courts looked to statutes for guidance when questions arose. Parliament had a far broader statutory power than have American legislatures. As pointed out by Professor Plucknett in his Concise History of the Common Law, ³ cited by amicus curiae, Parliament at one time passed a statute providing for summary jurisdiction in all non-felony cases. Since extremely heavy penalties were often visited upon relatively minor offenders in common-law England, that statute would have been repugnant to our Constitution in many instances; but in England it prevailed, since the ultimate authority was Parliament, not the Constitution.

In contrast, American legislatures must adhere to the provisions of a written constitution. Whether a particular procedure is within the judicial power is a different question for us than it was for common-law courts. Our ultimate authority is the Constitution; and the courts, not the legislature, are the ultimate interpreters...