Cahill v. Fifteenth District Judge , 70 Mich. App. 1 ( 1976 )

70 Mich. App. 1 (1976) 245 N.W.2d 381

CAHILL
v.
FIFTEENTH DISTRICT JUDGE

Docket No. 17375.

Michigan Court of Appeals.

Decided July 19, 1976.

Goldstein and Welber, P.C., for plaintiffs.

John K. VanLoon, Assistant Ann Arbor City Attorney, for defendant.

Before: DANHOF, C.J., and QUINN and D.E. HOLBROOK, JR., JJ.

D.E. HOLBROOK, JR., J.

On June 27, 1972, the Ann Arbor Police Department issued a routine traffic ticket to David Cahill. Cahill was cited for making an illegal left turn contrary to § 10:41 of the Ann Arbor City Code.^[1] When Cahill appeared in district court to contest the ticket the court clerk refused him permission to post the statutory ten percent cash bail. MCLA 780.66; MSA 28.872(56).

According to a bond schedule previously approved by the district judges and used by the clerk's office, the bond for this offense was fixed at $35. The clerk, however, informed him that in order to post such a bond he must personally appear before the district judge. The clerk also refused Cahill's request for a jury trial again referring him to the district judge. After a substantial wait the district judge granted Cahill a personal recognizance bond in the penal sum of $100. The district judge also denied Cahill's request for a jury trial.

Thereafter, Cahill instituted a class action for a writ of superintending control in the Washtenaw County Court to compel the Fifteenth District judges to order the district court clerk to accept the statutory ten percent bond. The complaint also requested the circuit court to order the district judges to grant jury trials on demand.

The circuit court dismissed the complaint for a writ of superintending control. From that order dismissing their complaint, for a writ of superintending control plaintiffs appeal as of right.^[2]

I

The plaintiffs base their first argument on our opinion in Pressley v Wayne County Sheriff, 30 Mich. App. 300; 186 NW2d 412 (1971). Therein it was held that persons charged with traffic and misdemeanor offenses have a right to post bail by depositing ten percent of the amount of bail set by the court with the clerk in accordance with the terms of the statute. MCLA 780.66; MSA 28.872(56).^[3] (Emphasis supplied.)

Here Cahill's bail had been set by the court, administratively, by virtue of the bond schedule previously adopted and approved. The clerk, under such circumstances, had a ministerial duty to apply the schedule and was without discretion to require the defendant to seek the judge's specific approval, for we hold in such cases a defendant has an absolute right to post bail in accordance with the provisions of MCLA 780.66; MSA 28.872(56).

We are not persuaded by the circuit court's reasoning that since Cahill was subsequently granted a personal recognizance bond, with no cost to him, that he lacked standing to challenge the district court's bonding and bail policy.^[4] Here Cahill was required to wait several hours to personally appear before the district judge. Delay such as this, in our opinion, will tend to discourage persons from utilizing the statute and defeat the statute's obvious intent of convenient and expeditious bail for those persons charged with minor offenses.

II

To support the second count of their complaint plaintiffs rely on People v Burnett, 55 Mich. App. 649; 223 NW2d 110 (1974), lv den, 393 Mich 765(1974). As in People v Burnett, supra, Cahill's case involved a prosecution under a municipal ordinance that parallels a state statute. The Court in People v Burnett, supra, in holding that the defendant was entitled to a jury trial for violation of a municipal ordinance making it unlawful to furnish alcohol to a minor, stated at page 654:

"The act here complained of is a violation of MCLA 750.141a; MSA 28.336(1) as well as of the ordinance. The complaint made against defendant charges her with a crime, and upon her conviction the trial court has the power to incarcerate her in the county jail for up to 90 days. The deprivation of liberty is the same regardless of whether a piece of legislation is termed a statute or a municipal ordinance."

At the time Cahill was ticketed, the maximum penalty was 90 days in jail. Ann Arbor City Code, § 10:156.

Although People v Burnett, supra, was decided subsequent to the circuit court's decision in this case, we hold such case to be applicable. While directly interpreting art 1, § 20 of the Michigan Constitution as amended in 1972, the Court relied on previous case law to support its position. People v Burnett, supra at 652-654, e.g., People v Goldman, 221 Mich. 646; 192 N.W. 546 (1923), In re Cox, 129 Mich. 635; 89 N.W. 440 (1902), Village of Northville v Westfall, 75 Mich. 603; 42 N.W. 1068 (1889). Since the 1972 amendment did nothing to change the language granting to the accused a right to trial by jury in every criminal prosecution, the logic of People v Burnett should be applied in this case even though Cahill made his demand prior to the passage of the amendment. Thus, whenever a defendant may receive a jail sentence, his prosecution constitutes a criminal prosecution and he is entitled to a jury trial under the Michigan Constitution.

While the defendant has the right to waive a jury, MCLA 763.3; MSA 28.856, only the defendant may waive this right and it may not be done for him by the court. People v Rimmer, 59 Mich. App. 645, 647-648; 230 NW2d 170 (1975), People v Henry Brown, 57 Mich. App. 568, 571-572; 226 NW2d 563 (1975), lv den, 393 Mich 813(1975). This in effect is what was done in the instant case. We hold, therefore, the trial court reversibly erred in denying defendant's demand for a trial by jury.

Reversed and remanded for proceedings consistent with this opinion.

DANHOF, C.J., and QUINN, J., concur but as to result only as to Issue No. 2.

NOTES

[1] Ann Arbor City Code, § 10:41:

"Compliance with Traffic Control Devices. No driver of a vehicle shall disobey the instructions of any traffic control device placed in accordance with provisions of this Chapter unless at a time otherwise directed by a Police Officer."

This section parallels MCLA 257.611; MSA 9.2311.

[2] Cahill v Fifteenth District Judge, 393 Mich. 137; 224 NW2d 24 (1974).

[3] The statute requires a minimum deposit of $10. MCLA 780.66(1); MSA 28.872(56)(1).

[4] The circuit court's opinion did not address itself to the factual situations in the intervening plaintiffs' cases. Likewise, we do not consider the intervening plaintiffs' claims because we conclude that Cahill can adequately represent the interests of the class he purports to represent. See Northview Construction Co v St Clair Shores, 395 Mich. 497; 236 NW2d 396 (1975).