State v. Bennion , 112 Idaho 32 ( 1986 )

HUNTLEY, Justice.

In this case, appellant, Sam H. Bennion, challenges the constitutionality of the provision of the Idaho Traffic Infractions Act (ITIA) which defines infractions as civil offenses rather than as criminal actions, and denies those accused of infractions a right to a jury trial. We hold that the ITIA violates neither the Federal nor the Idaho Constitution.

I. BACKGROUND

The facts of this case are undisputed and simple. On March 4, 1984, an Idaho Falls police officer stopped Bennion in his automobile for allegedly passing through an intersection against a red light. To this Bennion pled not guilty. After a trial date was set in the magistrate court of Bonneville County, Bennion made motion for a jury trial. This motion was denied. At the subsequent trial, Magistrate Mildred R. McClure found Bennion guilty of the infraction, and fined him $35.00. Bennion appealed the denial of his motion to the district court in Bonneville County (Judge H. Reynold George). Judge George upheld the decision of the magistrate court. This appeal followed.

Bennion was accused of disobeying the instruction of an official traffic control device in violation of I.C. § 49-611(1). The Idaho Traffic Infractions Act defines this as an “infraction,” I.C. § 49-3406(1), which is “a civil public offense____ for which there is no right to a trial by jury____” I.C. § 49-3401(3). Bennion challenges both the validity of the Idaho Traffic Infractions Act and the constitutionality of the denial of his right to a jury trial under the Idaho Constitution.¹

There is no dispute that the United States Constitution does not require a jury trial in the instant circumstances. The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury____” The requirements of the Sixth Amendment pertain to proceedings under state law and in state courts by virtue of the Due Process Clause of the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491 (1968). However, the United States Supreme Court has further held that “there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision and should not be subject to the Fourteenth Amendment jury trial requirement here applied to the States.” Id. at 159, 88 S.Ct. at 1452, see also, e.g., District of Columbia v. Clawans, 300 U.S. 617, 625-27, 57 S.Ct. 660, 662-63, 81 L.Ed. 843 (1937) (prosecution for violation of statute prohibiting the selling of unused portions of railway excursion tickets requires no jury trial); Schick v. United States, 195 U.S. 65, 66-68, 24 S.Ct. 826,826-27, 49 L.Ed. 99 (1904) (prosecution for violation of statute prohibiting the receipt for sale of unstamped oleomargarine, punishable by a $50 fine and no imprisonment, required no jury trial).

The United States Supreme Court has declined to delineate “the exact location of the line between petty offenses and serious crimes,” Duncan, supra, 391 U.S. at 161, 88 S.Ct. at 1453, but has afforded considerable guidance. As a measure of what the Sixth Amendment requires, the United Supreme Court observed:

Crimes carrying possible penalties up to six months do not require a jury trial if they otherwise qualify as petty offenses. But the penalty authorized for a particular crime is of major relevance in determining whether it is serious or not and may in itself, if severe enough, subject the trial to the mandates of the Sixth Amendment. The penalty authorized by the law of the locality may be taken “as a gauge of its social and ethical judgment” of the crime in question. Id. at 159-60, 88 S.Ct. at 1452-53 (citations omitted).

See also Baldwin v. New York, 399 U.S. 66, 68-69, 90 S.Ct. 1886, 1887-88, 26 L.Ed.2d 437 (1970) (“we have held that a possible six-month penalty is short enough to permit classification of the offense as ‘petty,’ [citations]”). As a measure of what it considered a fine so “petty” that no jury is warranted, the Court noted that in addition to a maximum of six months in prison, federal petty offense are punishable by a maximum fine of $500. Duncan, supra, 391 U.S. at 161, 88 S.Ct. at 1453 (citing 18 U.S.C. § 1). Such “objective criteria” primarily determine the scope of the Sixth Amendment. Baldwin, supra, 399 U.S. at 68, 90 S.Ct. at 1887. Since the violation of an infraction “is punishable only by a penalty not exceeding one hundred dollars ($100) and no imprisonment,” I.C. § 49-3406(1), Bennion concedes, and we agree, that the Sixth and Fourteenth Amendments do not afford him a jury.

Nevertheless, Bennion argues that Article 1, § 7 of the Idaho Constitution guarantees him a jury trial. State constitutions can afford greater procedural protections to accused persons than does the federal constitution. Gibson v. State, 110 Idaho 631, 635, 718 P.2d 283, 287 (1986); State v. Newman, 108 Idaho 5, 10 n. 6; 696 P.2d 856, 861 n. 6 (1985); Hellar v. Cenarrusa, 106 Idaho 586, 590, 682 P.2d 539, 542 (1981); see also, e.g., Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570 (1975); City of Pasco v. Mace, 653 P.2d 618, 623 (Wash.1983) (held that Washington Constitution guaranteed a jury trial for an offense which under the federal constitution would be classified as “petty”).

As a preliminary matter Bennion argues, the state concedes, and we agree, that although the ITIA defines infractions as “civil public offense[s],” I.C. § 49-3401(3), for purposes of constitutional analysis, they must be considered criminal. Without ambiguity, the Idaho Constitution states, “Every action prosecuted by the people of the state as a party, against a person charged with -a public offense, for the punishment of the same, shall be termed a criminal action.” Article 5, § 1. This provision by itself, however, does not establish that all criminal actions trigger the right to jury trial contained within Article 1, § 7. On its face, Article 1, § 7 does not expressly preserve the right to jury trial in the case of all criminal actions. Conversely, Article 1, § 7 does not expressly exclude minor criminal actions from its purview.

This Court has not addressed the constitutionality of the provisions of the ITIA which deny jury trials to those accused of infractions; nor has this Court addressed the more general question of whether there exists a category of criminal offenses which are so minor as to fall outside the jury requirement of Article 1, § 7. In McDougall v. Sheridan, 23 Idaho 191, 128 P. 954 (1913), the Court carved out a narrow exception to allow courts “to punish summarily for contempt.” Id. at 222, 128 P. at 965. In People v. Burnham, 35 Idaho 522, 207 P. 589 (1922), the state had brought an action against a school teacher “under C.S., sec. 7024, which authorizes the prosecuting attorney to bring such an action ‘in the name of the people of the state against any person who usurps, intrudes into, holds or exercises any office or franchise, real or pretended, within this state, without authority by law.’ ” Id. at 524, 207 P. at 590. By statute, the subsequent proceedings did not require a jury. The Court held that Article 1, § 7 had no application, because (1) the same proceeding did not require a jury at the time of statehood, and (2) the proceeding was civil rather than criminal according to its statutory designation and according to its nature. Id. at 524-26, 207 P. at 590. Neither of these cases established either the existence or nonexistence of a category of minor criminal offenses for which no jury trial is required.

The closest this Court has come to answering this question was in State v. Romich, 67 Idaho 229, 176 P.2d 204 (1946), and its progeny, State v. Leonard, 67 Idaho 242, 176 P.2d 214 (1946); State v. Brunello, 67 Idaho 242, 176 P.2d 212 (1946); State v. White, 67 Idaho 309, 177 P.2d 472 (1947); and Miller v. Winstead, 75 Idaho 262, 270 P.2d 1010 (1954). In these cases, the Court dealt with I.C. § 49-121, a statute originally enacted in 1913 and now repealed. That section permitted “cities of the first class” (those containing more than 15,000 inhabitants) to try and dispose of violations of city ordinances without a jury. In each case, the accused persons had appealed the decision of the municipal court to the state district court, and at that point demanded a jury-

In none of these cases did the Court reach the constitutionality of I.C. § 49-121 or of jury-less municipal proceedings pursuant to § 49-121. The Court only held that once the proceeding reached the district court, statutory law entitled the defendant to a jury trial. Romich, supra, 67 Idaho at 241, 176 P.2d at 212; Miller, supra, 75 Idaho at 265-66, 270 P.2d at 1012. In Romich, Justice Miller noted that there was “no instance where any provision with respect to trial by jury was enacted for cities or villages until subsequent to the approval and ratification of the Idaho Constitution in 1890.” Romich, supra, 67 Idaho at 238-39, 176 P.2d at 210 (Opinion of Miller, J.). Consequently, Justice Miller expressed the view that “because of the provision that the right of trial by jury shall remain inviolate [Article 1, § 7], it would seem to us that the legislature could pass no valid act which denied to a defendant in a criminal prosecution under an ordinance or statute the right to a trial by jury.” Id. at 239, 176 P.2d at 210. Notwithstanding Justice Miller’s use of the pronoun “us,” no other justice shared his view. In Win-stead, Justice Taylor expressed the view that there never had been the right to a jury in cases involving violations of local police regulations. Winstead, supra, 75 Idaho at 266, 270 P.2d at 1012 (Taylor, J., concurring specially). Again, Justice Taylor’s views belonged only to himself.

Nearly a century has passed since Article 1, § 7 was ratified. Nevertheless, through one twist of fate or another, this Court has left unanswered the question of the existence of a category of minor criminal offenses lying outside the bounds of the jury requirement. To that question and to the question of the constitutionality of the ITIA we now turn.

II. MINOR CRIMINAL OFFENSES, THE IDAHO TRAFFIC INFRACTIONS ACT, AND THE IDAHO CONSTITUTION’S PROVISION FOR THE RIGHT TO TRIAL BY JURY

A. The Standard of Construction of Article 1, Section 7.

The right to trial by jury always has been salient to the American people. In no less a document than the Declaration of Independence, our nation’s founders grounded, in part, their dissolution of political ties with Great Britain on the King’s “depriving us, in many cases, of the benefits of trial by jury.” As the United States Supreme Court has observed, the Framers of both the federal and state constitutions interposed juries of citizens between governments and those persons the governments have accused of wrong in order to avert the abuse of authority:

The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power — a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence. Duncan, supra, 391 U.S. 155-56, 88 S.Ct. at 1450-51.

The Framers of the Idaho Constitution phrased their convictions in unequivocal fashion: “The right of trial by jury shall remain inviolate____” Idaho Const. Article 1, § 7.

“[T]his Court,” Justice McQuade accurately observed, “has a duty to protect the people’s rights as enumerated in the Idaho and United States Constitutions from legislative encroachment.” Thompson v. Hagan, 96 Idaho 19, 24, 523 P.2d 1365, 1371 (1974). The right to a jury trial is a fundamental right, and must be guarded jealously. Farmer v. Loofbourrow, 75 Idaho 88, 94, 267 P.2d 113, 116 (1954).

This Court long and often has stated that Article 1, § 7 preserves the right to jury trial as it existed at the common law and under the territorial statutes when the Idaho Constitution was adopted. E.g., Burnham, supra, 35 Idaho at 526, 207 P. at 590; Christensen v. Hollingsworth, 6 Idaho 87, 93, 53 P. 211, 212 (1898). This standard of construction holds sway in the criminal as well as civil context. Dutton v. District Ctiurt, 95 Idaho 720, 723, 518 P.2d 1182, 1185 (1974) (involved criminal contempt); State v. Jutila, 34 Idaho 595, 597, 202 P. 566 (1921) (involved robbery). Most jurisdictions interpret their analogous constitutional provisions in an analogous way. E.g., People v. Collins, 17 Cal.3d 687, 131 Cal.Rptr. 782, 552 P.2d 742, 745 (1976); Rothweiler v. Superior Court, 100 Ariz. 37, 410 P.2d 479, 485 (1966); see generally, 47 Am.Jur.2d Jury, §§ 7,17. The standard embodies the common sense notion that, by employing the phrase “shall remain inviolate,” the Framers must have intended to perpetuate the right as it existed in 1890. Burnham, supra, 35 Idaho at 525-26, 207 P. at 590; Christensen, supra, 6 Idaho at 94, 53 P. at 212; accord, State v. Cousins, 97 Ariz. 105, 397 P.2d 217, 218 (1964); Town of Montclair v. Stanoyevich, 6 N.J. 479, 79 A.2d 288, 293 (1951).

The standard should not be taken to extreme. The Framers did not intend to literally freeze the law precisely as it existed in 1890. To do so would yield the absurd result of affording no right to jury trial to those accused of crimes that happened not to be in statutory or common law existence at that arbitrary point in history. As the California Supreme Court said:

“It is suggested that the statute was enacted since the adoption of the Constitution, and for that reason is not within the guaranty of trial by jury. The constitutional right of trial by jury is not to be narrowly construed. It is not limited strictly to those cases in which it existed before the adoption of the Constitution but is extended to cases of like nature as may afterwards arise.” People v. One 1941 Chevrolet Coupe, 37 Cal.2d 283, 231 P.2d 832, 844 (1951).

The Framers of the Idaho Constitution were well aware of the nature of a constitution. For example, during the debate over amendments to Article 1, § 7, Judge John S. Gray stated:

We came here, I supposed, to draft a constitution; that is, to make general rules and general laws; that is, to give general directions and lay a foundation that is broad enough for legislative enactment, and when the legislative enactments are enacted from that, that they may be changed from time to time. Proceedings and Debates of the Constitutional Convention of Idaho 226 (1889).²

We do not believe the Framers meant Article 1, § 7 to serve as a shorthand enactment into perpetuity of existing statutory and common law on the right to jury trial.

In their law review article on the right to jury trial under the federal constitution, Felix Frankfurter and Thomas Corcoran documented the shifting nature of the right at the common law of Great Britain, and observed:

[W]hile the Constitution was written in 1787, it was not written for 1787. Its language, while rooted in the concrete experience and practices of the framers, may spread beyond into fresh soil. Historic continuity in constitutional construction does not necessarily mean historic stereotype in application. To what extent respect for continuity demands adherence merely to what was, involves the art of adjudication — raises those questions of more or less that ultimately decide cases. This is the judge’s function, not ours. But in striking the final balance, the claims of history, in a case presenting the problem under discussion, will weigh heavily. Frankfurter and Corcoran, Petty Offenses and the Constitutional Guaranty of Trial by Jury, 39 Harv.L.Rev. 917, 922 (1926) (hereinafter “Frankfurter and Corcoran”) (footnote omitted).

Certainly the right to a jury trial as it existed in 1890 is the beginning point of our analysis of the meaning of Article 1, § 7. The “claims of history”, of necessity, will “weigh heavily.” Frankfurter and Corcoran, supra, at 922. Though we are not bound by historic stereotype, we will endeavor to interpret Article 1, § 7 consistent with the right to jury trial as the Framers conceived it. Cf Clawans, supra, 300 U.S. at 627, 57 S.Ct. at 663 (“We are aware that those standards of action and of policy which find expression in the common and statute law may vary from generation to generation. Such change has led to the abandonment of the lash and the stocks, and we may assume, for present purposes, that commonly accepted views of the severity of punishment by imprisonment may become so modified that a penalty once thought to be mild may come to be regarded as so harsh as to call for the jury trial, which the Constitution prescribes, in some cases which were triable without a jury when the Constitution was adopted.”); Baker v. City of Fairbanks, 471 P.2d 386, 396 (Alaska 1970) (“We feel that the argument from history is not determinative because what was practical historically is not necessarily adequate to the needs of our times. To look only to history would deny a progressive development of our legal institutions.”).

We do well to remember and follow the teachings of Mr. Justice Holmes:

[Wjhen we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago. Missouri v. Holland, 252 U.S. 416, 433, 40 S.Ct. 382, 383, 64 L.Ed. 641 (1920).

The Idaho Constitution and its Framers deserve as much.

B. Right to Jury Trial at the Common Law of England, in other Jurisdictions, and in Idaho at the Time of Statehood.

The common law of England and the law of the colonies preceded, but differed markedly from, the territory of Idaho’s law on jury trials. Frankfurter and Corcoran discovered a “great volume of offenses” subject to summary trials before English magistrates. Frankfurter and Corcoran, supra, at 928:

Violations of the laws relating to liquor, trade and manufacture, labor, smuggling, traffic on the highway, the Sabbath, “cheats,” gambling, swearing, small thefts, assaults, offenses to property, servants and seamen, vagabondage, and disorderly conduct were largely in the justices’ hands. If we add qui tam prosecutions which in earlier days preceding the modern system of public prosecution were hardly distinguishable from regular state proceedings, there are at least a hundred more within the jurisdiction of the unaided justices. Id. (footnotes omitted).

Frankfurter and Corcoran delineated three salient features of these offenses: (1) The general rule was that those accused of crimes had the right to trial by jury; specific withdrawals were necessary to accomplish summary proceedings. (2) “There was no unifying consideration as to the type of criminal offense subject to summary trial”; the offenses ranged from the truly “petty” to those bordering on serious felonies. “The controlling factor seems less the intrinsic gravity of the offense ... than the desire for a swift and convenient remedy.” (3) “Nor was there uniformity about appeals.” Some statutes gave no right to appeal; some could be retried without a jury. Id. at 927. Punishment ranged from fines, to corporal punishment, to imprisonment at hard labor. Id. at 932.

Before and at the time of Independence, summary procedures were well-established in the colonies. Id. at 933, 936-37. Believing that the Framers of the United States Constitution assumed the continuation of this situation, the United States Supreme Court has held that the guarantees of Article III, § 2 and the Sixth Amendment do not extend to petty crimes. Callan v. Wilson, 127 U.S. 540, 555, 8 S.Ct. 1301, 1306, 32 L.Ed. 223 (1888); Schick v. United States, 195 U.S. 65, 70, 24 S.Ct. 826, 827, 49 L.Ed. 99 (1904); but see Kaye, Petty Offenders Have No Peers!, 26 U.Chi.L.Rev. 245 (1959) (argues that the Framers abhorred and sought to end the practice of summary proceedings). Some supreme courts of states which numbered among the original thirteen have made similar assumptions. E.g. State v. Anonymous, 6 Conn.Cir. 451, 275 A.2d 618, 619 (1971); State v. Maier, 13 N.J. 235, 99 A.2d 21, 47 (1953).

In other states, the scope of right-to-jury-trial constitutional provisions are as diverse as is the Union itself. Many jurisdictions have determined that the law of their states at the time their constitutions were adopted provided for summary proceedings in some circumstances. E.g., Vallejos v. Barnhart, 102 N.M. 438, 697 P.2d 121, 123 (1985); Bruce v. State, 126 Ariz. 271, 614 P.2d 813, 814 (1980); State v. Young, 194 Neb. 544, 234 N.W.2d 196, 197-98 (1975).

The test for what constitutes a “petty” offense in all these courts has evolved from a purely historical approach to one which evaluates the severity of the penalty and the nature of the offense. E.g., Clawans, supra, 300 U.S. at 627, 57 S.Ct. at 663; Baker, supra, 471 P.2d at 393; O’Neill v. Mangum, 445 P.2d 843, 844 (Ariz.1968). Depending on the jurisdictional background law and on the court’s evaluation of the two factors, the results of this test have ranged from holdings that assault and battery is a petty offense, Goldman v. Kautz, 111 Ariz. 431, 531 P.2d 1138, 1139 (1975), to holdings that any offense involving incarceration triggers the right of the accused to a jury trial, Baker, supra, 471 P.2d at 401.

Still other jurisdictions have found that their constitutions afford the right to a jury trial in all criminal proceedings without exceptions for “petty” offenses. City of Pasco v. Mace, 98 Wash.2d 87, 653 P.2d 618, 625 (1983) (“It is our conclusion that, under the concept embodied in the constitution of Washington, enacted as it was in light of the laws of the territory existing at that time, no offense can be deemed so petty as to warrant denying a jury if it constitutes a crime.”); Hendershot v. Hendershot, 164 W.Va. 190, 263 S.E.2d 90, 95 (1980) (“We recognize that Bloom’s empirical survey of the right to a trial by jury in colonial times reaches a different result as to petty offenses. However, we cannot ignore our own historical roots, which are embedded in such clear and unequivocal constitutional, statutory and judicial language.”); Franklin v. State, 576 S.W.2d 621, 623 (Tex.Ct.App.1978); People v. Burnett, 55 Mich.App. 649, 223 N.W.2d 110, 111 (1974); State v. Sklar, 317 A.2d 160, 171 (Me.1974); State v. Becker, 130 Vt. 153, 287 A.2d 580, 581-82 (1972); Peterson v. Peterson, 278 Minn. 275, 153 N.W.2d 825, 828 (1967); State v. Voss, 34 Wis.2d 501, 149 N.W.2d 595, 597 (1967).

In the territory of Idaho, at the time of statehood, a similar situation existed as in the territory of Washington. See City of Pasco, supra, 653 P.2d at 625. The territorial statutes defined “[a] crime or public offense” as:

an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, either of the following punishments: 1. Death; 2. Imprisonment; 3. Fine; 4. Removal from office; or, 5. Disqualification to hold and enjoy any office of honor, trust or profit in this Territory. Rev. Stat. § 6309 (this and subsequent references are to the 1887 territorial statutes).

All crimes were comprehensively divided into two categories: felonies and misdemeanors. Rev.Stat. § 6310. Felonies were punishable by imprisonment in the territorial prison for a maximum of five years, and/or by a maximum fine of $5,000. Rev. Stat. § 6312. “Every other crime is a misdemeanor,” Rev.Stat. § 6311 (emphasis added), punishable by imprisonment in a county jail for a maximum of six months and/or a maximum fine of $300. Rev.Stat. § 6313. “The proceeding by which a party charged with public offense is accused and brought to trial and punishment, is known as a criminal action.” Rev.Stat. § 7352. The statutes incorporated common law criminal offenses not specifically enumerated. Rev.Stat. § 7232. In sum, under these provisions, (1) every public offense was either a misdemeanor or a felony, and (2) the prosecution of every public offense was a criminal action.

Every prosecution of a public offense, whether a misdemeanor or felony, carried with it the right to trial by jury:

No person can be convicted of a public offense unless by verdict of a jury, accepted and recorded by the court, or upon a plea of guilty, or upon a judgment of a Probate or Justice’s Court, a jury having been waived, in a criminal case not amounting to a felony. Rev. Stat. § 7358; see also § 3974 (“Thereafter, if the action is a criminal one, the jury must be impaneled as provided by the statutes related thereto.”).

This law governed proceedings before district courts, justice’s courts, probate courts, and magistrates. Id. (jury required in all criminal actions unless waived in non-felony cases); Rev.Stat. § 8284 (justice’s and probate courts may only try criminal cases without a jury “if the parties waive a trial by jury”); Rev.Stat. §§ 7510, 7511 (definition of magistrates).

The territorial statutes made but few exceptions to the right to a jury trial in criminal actions. Section 5157, found in the civil part of the statutes, provided:

When a contempt is committed in the immediate view ,and presence of the court, or judge at chambers, it may be punished summarily; for which an order must be made, reciting the facts as occurring in such immediate view and presence, adjudging that the person proceeded against is thereby guilty of a contempt, and that he be punished as therein prescribed. (Emphasis added.)

Contempt generally was defined as a misdemeanor crime. Rev.Stat. § 6529. Section 7459, found in the penal part of the statutes, provided for summary procedures to remove miscreant public officials:

When an information in writing verified by the oath of any person, is-presented to a District Court, alleging that any officer within the jurisdiction of the court has been guilty of charging and collecting illegal fees for services rendered or to be rendered in his office, or has refused or neglected to perform the official duties pertaining to his office, the court must cite the party charged to appear before the court at a time not more than ten nor less than five days from the time the information was presented, and on that day or some other subsequent day, not more than twenty days from that on which the information was presented, must proceed to hear, in a summary manner, the information and evidence offered in support of the same, and the answer and evidence offered by the party informed against; and if on such hearing it appears that the charge is sustained, the court must enter a decree that the party informed against be deprived of his office, and must enter a judgment for five hundred dollars in favor of the informer and such costs as are allowed in civil cases. (Emphasis added.)

Other than these two isolated exceptions, we find no provision for summary criminal trials.³

Neither do we perceive any implicit recognition of summary proceedings for petty crimes as at the pre-revolutionary common law of England. In many instances the statutes specifically provided for jury trials where they were disallowed at the English common law. For example, a gambling offense, considered petty at the common law, Frankfurter and Corcoran, supra, at 928, was a misdemeanor to which attached the right to a jury trial. Rev.Stat. §§ 6850, 7358. The same can be said for petit larceny. Rev.Stat. §§ 7049, 7051, 7358. The statutes are absolutely clear that all criminal actions, including criminal offenses defined not by statute, but at the common law, entitled the accused to a jury trial. Rev.Stat. §§ 7358, 7232. The statutes adopted the common law of England only in “cases not provided for in these Revised Statutes.” Rev.Stat. § 18. Since the statutes comprehensively provided for the right to a jury trial in criminal actions, any common law exceptions would have no force or application.

As Frankfurter and Corcoran explained, even at the common law of England, “[tjhere was a specific withdrawal from trial by jury of specific offenses in specific statutes, rather than a general formula for summary procedure.” Frankfurter and Corcoran, supra, at 927. At the time of statehood, the territory of Idaho made two specific exceptions to an otherwise all-encompassing grant of the right to jury trial in criminal actions.

C. The Intent of Article 1, Section 7 Examined.

The Framers’ use of the language, “[t]he right of trial by jury shall remain inviolate,” Article 1 § 7 (emphasis added), implies that they intended to perpetuate at least in a general way the existing right to a jury trial. The existing right, as just discussed, was certainly broad.

Article 1, § 7 also included the following language: “[T]he legislature may provide that in all cases of misdemeanors five-sixths of the jury may render a verdict. A trial by jury may be waived in all criminal cases not amounting to felony, by the consent of both parties, expressed in open court____” The implication of the first sentence as quoted is that in “all cases of misdemeanors” there is the right to a jury, five-sixths of which may render a verdict. The implication of the second sentence is that “in all criminal cases” there is a right to a jury, which may be waived in the case of non-felony cases. The inferred intention to afford a jury trial in every criminal case, whether involving a serious or a petty offense, would be consistent with the provisions of the territorial statutes at the time of statehood.

To assume the Framers were unaware of the implications of their language or of the state of the law at the time would be foolhardy.⁴ Nearly half of the delegates and sixteen of the twenty-five committee chairs were attorneys. Proceedings and Debates of the Constitutional Convention of Idaho 160 (1889). The delegates displayed a thorough knowledge of the common law history of the right to jury trial. Id. at 155-56, 161, 220-21, 230, 256-57. Though they had respect for the English common law, “it does not necessarily follow,” as delegate Shoup put it, “that because a thing is English that it is not susceptible of reform or amendment.” Id. at 219; see also Id. at 223, 228 (comments indicating that the convention sought to modify common law premises on the right to jury trial). Ultimately, the convention rejected the common law rule requiring unanimous jury verdicts. Id. at 259. They no doubt were aware of the practice of summary procedure at the English common law.

The delegates also knew of, but rejected, the practice under federal law of dispensing of juries in the case of misdemeanors. Id. at 249 (“But in misdemeanors the punishment is small, and therefore they will dispense with juries under the laws of the United States, altogether in some cases, and do not allow a jury at all, although it is a crime, — so-known.”); see also Id. at 257. Knowing what they knew, the convention, with unanimity, expressed the intent to afford a jury in trials involving every crime, whether felony or misdemeanor. Id. at 148, 159, 214, 219, 236, 240-41, 245, 248. The jury trial system the Framers apparently wished to perpetuate was reflected best in the territorial statutes. That system was far more expansive than that of the common law or federal law.

In short, every indication from the law of 1890 and from the deliberations of the constitutional convention points to there being a right to a jury trial in every extant criminal action, with the probable exception of some contempt proceedings and the removal of public officials.

In spite of all this, we believe the Framers did not rule out the possibility of summary proceedings for some future-defined criminal actions. Just as the Framers must have known that territorial law provided a jury trial in virtually all criminal actions, they also must have known that in the instances of contempt and the removal of public officials, territorial law denied the right to a jury trial. Even so, they apparently desired that this situation “remain” as it was. It follows that summary proceedings were not necessarily entirely abhorrent to the Framers.

Significantly, the language of Article 1, § 7 and Article 5, § 1 does not preclude the existence of a future defined class of crimes to which the right of jury trial does not apply. Admittedly, the Framers appeared to conceive of all contemporary criminal actions as carrying with them the right to jury trial. Nevertheless, they chose not to expressly require that all criminal actions be tried before a jury. Such language appears in the federal constitution and in many state constitutions. See e.g. Indiana Const. Article 1, § 13; Maine Const. Article 1, § 6. Instead, they chose more general phraseology. As earlier noted, the Framers knew it was a constitution they were drafting.

Still more significantly, with only the few possible exceptions previously noted, supra, n. 3, even the most minor of territorial misdemeanors entailed possible imprisonment. Rev.Stat. § 6313. When viewed from the perspective of the potential punishment involved, the right to jury trial at the time of statehood extended primarily to offenses potentially punishable by imprisonment, excepting contempt.

The possibility of imprisonment for punitive purposes distinguishes criminal from civil sanction. See State v. Anton, 463 A.2d 703, 706 (Me.1983); Brown v. Multnomah Co. Dist. Ct., 280 Or. 95, 570 P.2d 52, 57-58 (1977). The highly regarded Justice Hans Linde of the Oregon Supreme Court observed:

The prescribed penalty is generally regarded as the single most important criterion [in distinguishing between criminal and civil prosecutions], at least when it involves imprisonment. Indeed, “decriminalization” of one-time criminal offenses ordinarily assumes that the sanction of imprisonment must be abandoned____ We agree that “imprisonment” cannot be used as “punishment” for a civil offense____ Brown, supra, 570 P.2d at 57; accord Anton, supra, 462 A.2d at 706.

The Framers made sure that “every action prosecuted by the people of the state as a party, against a person charged with a public offense, for the punishment of the same, shall be termed a criminal action.” Idaho Const. Article 5, § 1 (emphasis added). In Anglo-American practice as a whole, criminal actions always invoke certain procedural protections, including the accused’s right to confront witnesses, the right to have no verdicts directed against the accused, and burden on the state to prove its case beyond a reasonable doubt. Clark, Civil and Criminal Penalties and Forfeitures: A Framework for Constitutional Analysis, 60 Minn.L.Rev. 379, 398 (1976). However, as the Framers knew, criminal actions do not always invoke the right to a jury trial in all jurisdictions. Id. at 397-99. Criminal actions involving minor offenses without the potential for incarceration may well have been a situation appropriate for summary procedure in the eyes of the Framers. Clearly the Framers in 1890 could not have foreseen the future necessity of traffic infractions — offenses so minor that the legislature would consider them civil and would enforce them with only fines of no more than $100.

The label “criminal action”, as opposed to “civil action”, in all probability was less important to the Framers than the form of sanction involved. Cf. Anton, supra, 463 A.2d at 706 (“That purpose [of decriminalization] may not be achieved, however, by a mere change in the label of the offense.”). The debate over Article 1, § 7 reflected a preeminent desire to afford the protection of the right to a jury trial to those faced with the deprivation of freedom. Delegate Poe emphatically declared, “I am unalterably opposed to taking away that safeguard from any living human being, to-wit, a trial by twelve of his peers when he is accused of a crime the penalty of which will incarcerate him in a prison cell.” Proceedings and Debates of the Constitutional Convention of Idaho 242 (1889); see also id. at 152, 242, 255, 257-58.

George Kaye, a commentator on the right to jury trial under the federal constitution, argued that Article III, § 2 and the Sixth Amendment were designed to guarantee a jury in situations involving possible imprisonment:

But it is only where personal liberty is involved that the jury guarantees of Article III and Amendment VI come into play. Alexander Hamilton said that the friends of the plan of the Federal Convention, who as to this matter constituted the more conservative group, regarded the trial by jury “as a valuable safeguard to liberty.” Hamilton’s further elucidation of the topic in The Federalist clearly shows that the jury assurance of Article III was designed, in accordance with the attitude of the time, to secure personal liberty, and that the protection of private property was left to Congressional statutory regulations. Thus he writes:

I cannot readily discern the inseparable connection between the existence of liberty and the trial by jury in civil cases. Arbitrary impeachments, arbitrary methods of prosecuting pretended offenses, and arbitrary punishments upon arbitrary convictions, have ever appeared to me to be the great engines of judicial despotism; and these have all relation to criminal proceedings. The trial by jury in criminal cases, aided by the habeas-corpus act, seems therefore to be alone concerned in the question. And both of these are provided for, in the most ample manner, in the plan of the convention. Kaye, supra, 26 U.Chi.L.Rev. at 274-75 (footnotes omitted).

Judging from the concerns voiced at the convention, the Framers of the Idaho Constitution shared the concerns and desires of Hamilton.

Taking into account the universal right under territorial law to a jury trial whenever imprisonment threatened, the fact that imprisonment distinguishes criminal sanction, and thé ardent desire of the Framers to interpose juries on the road to the prison cell, we conclude that Article 1, § 7 guarantees a jury trial whenever the possible sanction includes imprisonment. Many other jurisdictions have reached the same or a similar result under their constitutions. City of Pasco, supra, 653 P.2d at 625 (Wash.); Anton, supra, 463 A.2d at 706 (Maine); Hendershot, supra, 263 S.E.2d at 95 (W.Va.); Franklin, supra, 576 S.W.2d at 623 (Texas); Burnett, supra, 223 N.W.2d at 112 (Mich.); Mills v. Municipal Court, 10 Cal.3d 288, 110 Cal.Rptr. 329, 336, 515 P.2d 273, 280 (1973); Becker, supra, 287 A.2d at 581-82 (Vermont); Baker, supra, 471 P.2d at 401 (Alaska); Peterson, supra, 153 N.W.2d at 830 (Minn.); Voss, supra, 149 N.W.2d at 597 (Wisc.); Bolkovac v. State, 229 Ind. 294, 98 N.E.2d 250, 252 (1951). As with these jurisdictions, the Idaho Constitution utilizes juries as a safeguard against unjust imprisonment.

This is not to say that crimes not potentially punishable by imprisonment never fall under the requirements of Article 1, § 7. The Framers expressed some concern for the deprivation of property rights as well as liberty without the benefit of a jury trial. Proceedings and Debates of the Constitutional Convention of Idaho 152, 158, 229 (1889). Means of sanction other than imprisonment, such as fines and the deprivation of privileges or offices, if serious and substantial enough, can rise to the level of criminal sanction. Brown, supra, 570 P.2d at 57-60. At some point the sanction crosses the line between remedial, regulatory, compensatory, or coercive, and becomes punitive. Id.; Anton, supra, at 706 (“In theory, a criminal sanction serves to ‘punish’ an individual for violating a legal norm, while civil sanctions serve to coerce, regulate or compensate. Clark, supra, 60 Minn.L.Rev., at 429-32, 475, n. 10.”). In such a case, Article 1, § 7 would apply. The measure to look to in judging whether or not a sanction is punitive is the maximum penalty. Baldwin, supra, 399 U.S. at 68, 90 S.Ct. at 1887; State v. Smith, 99 Nev. 806, 672 P.2d 631, 633 (1983); State v. Grimble, 397 So.2d 1254, 1256 (La.1980).

Citing extensive authority, the Maine Supreme Court has concluded, “Monetary fines that are reasonable in the circumstances have been deemed civil in nature on the ground that they have a remedial rather than punitive purpose.” Anton, supra, 463 A.2d at 707. “In effect,” observed the court, “the fine serves as a form of damages for the state’s enforcement costs.” Id. at 707. This assessment must be conducted under contemporary standards. Clawans, supra, 300 U.S. at 627, 57 S.Ct. at 663.

Collateral consequences such as loss of a driver’s license may or may not constitute a criminal sanction. Justice Linde explained:

No similar significance [as with imprisonment or large fines] attaches to the direct or collateral suspension or revocation of a driver’s license for a traffic offense. The offense does not become “criminal” rather than “civil” merely because the loss of a license is a great inconvenience, so long as the suspension or revocation reflects a legislative, judicial, or administrative judgment that a traffic offender should not continue to drive. Again the question is whether the deprivation is regulatory or another form of punishment, as for instance its imposition for nonpayment of a fine,____ Brown, supra, 570 P.2d at 58 (citation and footnote omitted).

In some cases, revocation may be necessary to protect the safety of the public. Anton, supra, 463 A.2d at 707.

An indicator of punitive intent, as one commentator concluded, “is the judgment of community condemnation which accompanies and justifies its imposition.” Hart, The Aims of Criminal Law, 23 Law & Contemp.Prob. 401, 404 (1958). While the stigmatizing or condemnatory character of a sanction may be difficult to determine, such character may at times surface in the language of the statute concerned or in legislative history. Brown, supra, 570 P.2d at 59-60.

Finally, whether or not the accused is subject to arrest and detention “bears on the constitutional distinction” between criminal and civil sanction. Brown, supra, 570 P.2d at 60; accord, Anton, supra, 463 A.2d at 708. Arrest and detention is something more than what occurs when a police officer stops a vehicle to enforce a traffic infraction:

Of course a traffic offender must be subject to being stopped____ But detention beyond the needs of identifying, citing, and protecting the individual or “grounding” him, especially detention for trial unless bail is made, comports with criminal rather than with civil procedure and is surely so perceived by the public. Brown, supra, 570 P.2d at 60; accord, Anton, supra, 463 A.2d at 707-08.

To summarize, Article 1, § 7 provides for trial by jury for all public offenses which are potentially punishable by imprisonment. Although the prosecutions of all public offenses are criminal actions, Idaho Const. Article 5, § 1, and all criminal actions required jury trials at the time of statehood, we believe Article 1, § 7 has sufficient flexibility to allow for summary proceedings if the sanction is decriminalized. Imprisonment is inherently a criminal sanction. Other sanctions may be characterized as criminal depending on their punitive intent. Punitive intent can be shown by the size of a potential fine, the eventuality and nature of losses of privileges, evidence of stigma and condemnation in the language of the statute and/or legislative history, and the potential for arrest and detention. We make no attempt to weigh these relatively; nor do we rule out the possibility of other indicators of punitive intent.

D. The Constitutionality of the ITIA in This Case.

Under the test set out above, the provisions of the ITIA challenged by Bennion easily pass muster. The infraction of which Bennion was accused was not punishable by imprisonment. I.C. §§ 49-3401(3) and 49-3406. Even if Bennion refuses to pay the fine imposed, the worst he will suffer is the suspension of his license, not imprisonment. I.C. § 49-3408. The “imprisonment factor” is the most important hurdle.

The sanction imposed, a fine not exceeding $100, does not rise to the level of a punitive, criminal sanction. In light of the decisions in other jurisdictions, $100 appears to be reasonable and thus remedial rather than punitive in nature. Cf, Anton, supra, 463 A.2d at 706-07 (possible fine of $250 for traffic infraction held non-criminal); People v. Oppenheimer, 42 Cal.App.3d Supp. 4, 116 Cal.Rptr. 795, 797-99 (1974) (possible fine of $50 for first conviction up to $250 for third conviction of traffic infraction held to be of “petty” nature); State v. Shak, 51 Haw. 612, 680, 466 P.2d 422, 423-25 (1970) (maximum fine of $200 for traffic infraction held to be of “petty” nature).

The legislature gave a number of indications that its intent was to impose a noncriminal non-punitive sanction. Its labeling of infractions as “civil,” though ineffective in light of Article 5, § 1, is one indicator. A second is found in the legislative statement of purpose of the ITIA, which articulated the intent “to remove jail sentences and jury trials from all of the non-serious motor vehicle offenses.” Statement of Purpose, R.S. 7129, H.B. 343 (1981). A third is reflected in the fact that if Bennion refuses to pay the fine, he will only be subject to having his license suspended. I.C. § 49-3408. “Such a suspension is not punitive but acts as a coercive measure in the nature of a civil sanction.” Anton, supra, 463 A.2d at 707. The Idaho legislature obviously did not view traffic infractions as worthy of stigma or condemnation.

Nor was, or is, Bennion subject to arrest and detention, even upon failure to pay his fine. See I.C. § 49-1109. “The fact that a motorist charged with a traffic infraction ... is not subject to a full-custody arrest [but only being temporarily stopped in order to be cited] comports with civil rather than criminal process.” Anton, supra, 463 A.2d at 708.

E. Conclusion.

At the time the Idaho Constitution was ratified, there existed no class of “petty” criminal offenses triable without a jury. However, Article 1, § 7 did not preclude the possibility of summary procedure for a future class of offenses, so long as the offenses were not punishable by imprisonment or other criminal sanction. In providing for summary proceedings only in the case of traffic infractions — subject not to imprisonment but only to a thoroughly decriminalized sanction of maximum fine of $100 — the legislature was true to the intent and scope of Article 1, § 7. The decision of the district court is affirmed.

DONALDSON, C.J., and SHEPARD and BAKES, JJ., concur.

1 . The Idaho Constitution provides in pertinent part:

Art. 1, § 7. Right to trial by jury. — The right of trial by jury shall remain inviolate; but in civil actions, three-fourths of the jury may render a verdict, and the legislature may provide that in all cases of misdemeanors five-sixths of the jury may render a verdict. A trial by jury may be waived in all criminal cases, by the consent of all parties, expressed in open court, and in civil actions by the consent of the parties, signified in such manner as may be prescribed by law. In civil actions the jury may consist of twelve or of any number less than twelve upon which the parties may agree in open court. Provided, that in the cases of misdemeanor and in civil actions within the jurisdiction of any court inferior to the district court, whether such case or action be tried in such inferior court or in district court, the jury shall consist of not more than six.

Art. 5, § 1. Forms of action abolished. —The distinctions between actions at law and suits in equity, and the forms of all such actions and suits, are hereby prohibited; and there shall be in this state but one form of action for the enforcement or protection of private rights or the redress of private wrongs, which shall be denominated a civil action; and every action prosecuted by the people of the state as a party, against a person charged with a public offense, for the punishment of the same, shall be termed a criminal action.

Feigned issues are prohibited, and the fact at issue shall be tried by order of the court before a jury. (Emphasis added.)

2 . This Court previously has observed:

In determining the constitutionality of a statute, the court may properly consider the proceedings of the Constitutional Convention so as to interpret the applicable provisions of the Constitution as nearly as possible in a manner consonant with the objects and purposes contemplated by the framers of the Constitution at the time of its adoption. Idaho Telephone Co. v. Baird, 91 Idaho 425, 429, 423 P.2d 337, 341 (1967).

3 . We found two provisions in the civil portion of the statutes which provided for fines of violators but left some question on whether or not the accused would receive a jury trial. Rev. Stat. § 973 empowered road overseers to post notice “that there is ‘Five dollars fine for riding or driving on this bridge faster than a walk.’ Whoever thereafter rides or drives faster than a walk on such bridge is liable to five dollars for each offense," and § 975 apparently authorized the overseers to “recover” the fine. Rev.Stat. § 1241 established fines for allowing certain stallions, ridglings, or unaltered mules or jackasses to run at large.

Despite their location in the civil section, these fall within the definition of crimes or public offenses, since the punishment for their violation was by fine. Rev.Stat. § 6309. All public offenses carried with them the right to demand a jury. Rev.Stat. § 7358. We believe that under the territorial statutes persons accused of violating these statutes could demand a jury trial.

Even if these two isolated statutes did not invoke the jury provision, they hardly establish a "category” of public offenses for which no right to jury trial existed. Rather, they would confirm Frankfurter and Corcoran’s observation that specific withdrawals of the right were necessary to defeat the assumption that a right existed. Otherwise, the territorial statutes afforded the right universally.

What the absence of a jury for these two provisions would do is support our holding, infra, that Article 1, § 7 guarantees a jury trial whenever imprisonment threatens, but not necessarily in all other cases.

4 . While most of their debate centered on amendments to art. 1, § 7 to allow for less than unanimous verdicts, the delegates gave glimpses of their views on the right to jury trial in general.