George v. Day , 69 Wash. 2d 836 ( 1966 )

Ott, J.

April 8, 1964, a complaint was filed in the police court of the city of Kennewick charging Alvin H. George with drunk driving, in violation of § 106, art. 18, ordinance No. 1113 of the city of Kennewick, committed on April 3, 1964.

On the same date, a similar complaint was filed charging him with reckless driving, in violation of the same ordinance and resulting from the same incident.

Alvin H. George demanded a jury trial in the police court. The police judge denied the request. The accused sought a writ of prohibition in the Superior Court for Benton County. The cause was heard upon the following stipulated facts:

Come Now the parties by and through their attorneys of record and respectfully stipulate upon the following facts:

It is stipulated by and between the parties that available documentary evidence, if admitted, would prove, and if witnesses were called, that they would testify to the following facts:

1. That the relator was duly charged in the Police Court of the City of Kennewick before the Honorable Robert S. Day, Police Judge of the City of Kennewick, Benton County, Washington, with having committed certain offenses known as drunk driving and reckless driving, and that complaints setting out said charges were filed in said Court, true copies of which are attached hereto and respectively marked Exhibit “A” and “B” and are each incorporated herein by reference as though fully set forth herein.

2. That the respondent City of Kennewick is a municipal corporation created by the laws of the State of Washington, and is a third class city, organized under the Council-Manager plan.

3. That in the year 1961 the said City adopted by reference certain acts of the Legislature of the State of Washington, relating to motor vehicles, then in effect, particularly RCW 46.56.010 as contained in Section 3, Chapter 393, Washington Session Laws of 1955, except the last paragraph thereof, and RCW 46.56.020, as contained in Section 118, Chapter 189, Washington Session Laws of 1937 and the provisions thereof are a part of Section 106 of Ordinance No. 1113 of said City, as the same is now and was in effect at the time relator was arrested and so charged in April of 1964.

4. That pursuant to R.C.W. 46.52.100 on the Monday following the conviction or forfeiture of bail of a person charged with the offenses charged against relator, respondent transmits to the Director of Licenses at Olympia an abstract of the record of said Court covering the conviction and/or forfeiture of bail.

5. That if relator is convicted of either of the charges against him in the pending action, the parties understand that it is the policy of the Director of Licenses to immediately suspend, cancel or revoke the driver’s license of relator in accordance with law.

6. That the County Commissioners of Benton County, Washington, have not elected to come under the provisions of the Justice Court Act, (Chapter 299, Washington Session Laws of 1961 as amended).

Dated this 4th day of November, 1964.

Exhibit “A” is the complaint charging Alvin H. George with the crime of drunk driving as follows:

[O]n the 3rd day of April, A. D. 1964, in the City of Kennewick, Benton County, Washington, one Alvin H. George did unlawfully violate Section 106 art. 18 of Ordinance No. 1113 of the Ordinances of the City of Kennewick aforesaid relating to Traffic, Travel and their related incidents, which said Ordinance was passed on the 13th day of June, 1961, in that he did then and there Operate a motor vehicle over and along the public streets of the City of Kennewick while under the influence of or affected by the use of intoxicating liquor or narcotic drugs. To wit: drunk driving.

Exhibit “B” is the complaint charging him with the crime of reckless driving as follows:

[O]n the 3rd day of April, A. D., 1964, in the City of Kennewick, Benton County, Washington, one Alvin H. George did unlawfully violate Section 106 art. 18 of Ordinance No. 1113 of the Ordinances of the City of Kennewick aforesaid relating to Traffic, Travel and their related incidents, which said Ordinance was passed on the 13th day of June, 1961, in that he did then and there Operate a motor vehicle over and along the public streets of the City of Kennewick in such a manner as to indicate a willful or wanton disregard for the persons or property of others. To wit: Reckless Driving.

After considering the arguments of counsel, the court granted the writ, ordering

that defendant [Robert S. Day, as Police Judge of the city of Kennewick] shall be and hereby is restrained from any further proceedings in the Police Court of the City of Kennewick in the action entitled “City of Kennewick v. Alvin George,” insofar as any action that would affect his driver’s license is concerned until such time as he is granted his constitutional right of trial by jury.

The city of Kennewick sought and was granted a writ of certiorari by this court to review the propriety of the writ of prohibition issued by the superior court.

The provisions of chapter 299, Laws of 1961, p. 2425, are not apropos to this review for the reason that the board of county commissioners has not voted to bring Benton County under the act.

The jurisdiction of the police court judge of the city of Kennewick, a city of the third class, is therefore governed by RCW 35.24.460, which, prior to 1965, provided:

The police judge so appointed, in addition to his powers as justice of the peace, shall have exclusive jurisdiction over all offenses defined by any ordinance of the city, and all other actions brought to enforce or recover any license, penalty or forfeiture declared or given by any such ordinance, and full power to forfeit bail bonds and issue execution thereon and full power to forfeit cash bail, and full power and authority to hear and determine all causes, civil or criminal, arising under such ordinance, and pronounce judgment in accordance therewith: Provided, That for the violation of a criminal ordinance no greater punishment shall be imposed than a fine of three hundred dollars or imprisonment not to exceed ninety days, or by both such fine and imprisonment. In the trial of actions brought for the violation of any city ordinance, no jury shall be allowed. (Italics ours.)

Can the legislature constitutionally create an inferior court having limited criminal jurisdiction, in which court no jury is provided?

Article 4, § 1, of the state constitution, provides:

The judicial power of the state shall be vested in a supreme court, superior courts, justices of the peace, and such inferior courts as the legislature may provide. (Italics ours.)

Article 4, § 12, provides:

The legislature shall prescribe by law the jurisdiction and powers of any of the inferior courts which may be established in pursuance of this Constitution. (Italics ours.)

Article 1, § 21, provides:

The right of trial by jury shall remain inviolate, but the legislature may provide for a jury of any number less than twelve in courts not of record, and for a verdict by nine or more jurors in civil cases in any court of record, and for waiving of the jury in civil cases where the consent of the parties interested is given thereto. (Italics ours.)

Article 1, § 22 (amendment 10), provides in part:

In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel, to demand the nature and cause of the accusation against him, to have a copy thereof, to testify in his own behalf, to meet the witnesses against him face to face, to have compulsory process to compel the attendance of witnesses in his own behalf, to have a speedy public trial by an impartial jury of the county in which the offense is charged to have been committed and the right to appeal in all cases: .... (Italics ours.)

Article 4, § 12, of the state constitution, grants to the legislature authority to determine the jurisdiction and the powers of any inferior court which it elects to create.

In establishing municipal courts for cities of the third class, the legislature, in the exercise of its discretion, has expressly provided that “no jury shall be allowed.” Hence, since art. 1, § 21, of the state constitution, provides that “The right of trial by jury shall remain inviolate,” it follows that the legislature considered, in enacting RCW 35.24.460, that the penalty which such courts could impose was so minor that no jury was constitutionally required. This policy has been accepted almost unanimously nationwide.

We have held that whether a jury is constitutionally required in a given case depends upon whether the offense can be classified as petty or serious. State ex rel. O’Brien v. Towne, 64 Wn.2d 581, 392 P.2d 818 (1964), and cases cited.

The maximum penalty which could be imposed by a municipal court of a city of the third class was “a fine of three hundred dollars or imprisonment not to exceed ninety days, or by both such fine and imprisonment.” See RCW 35.24.460 prior to the 1965 amendment.

Under the law of this state, one who is charged with violation of a municipal ordinance is provided with two forums in which his cause can be heard. The first forum is the municipal court. In this court, the accused is afforded a fair and impartial trial before the magistrate only. In the event he is found guilty by the magistrate, the accused person has a right to a trial de novo in the second forum, the superior court of the county in which the municipality is located. In this second forum, the cause is tried anew. The trial in the first forum becomes a nullity. In the second forum, the accused is afforded a jury trial. By this legislatively created judicial system, a person accused of violating a municipal ordinance is, without prejudice to him, afforded two trials in which he may seek vindication of the charge.

If the legislature had provided a jury trial in the first forum, then a person charged with violating a municipal ordinance would be granted two jury trials for the same offense. The constitution requires only that the accused be afforded one jury trial. The legislature, in the exercise of its discretion, has determined that the forum in which a jury trial will be provided for violation of municipal ordinances shall be the superior court of the county in which the municipality is located. If a legislative enactment can be given two interpretations, one rendering it constitutional and the other unconstitutional, we sustain the constitutionality of the act. Martin v. Aleinikoff, 63 Wn.2d 842, 389 P.2d 422 (1964). We hold that the legislative enactment granting an accused person a trial before a magistrate only, with a trial de novo on appeal to the superior court where a jury trial is afforded the accused, is not violative of the constitution of the state of Washington. Bellingham v. Hite, 37 Wn.2d 652, 225 P.2d 895 (1950).

The municipal court act of this state is not violative of the sixth amendment to the United States Constitution, which provides, inter alia: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed . . . . ”

In Cheff v. Schnackenberg, 384 U.S. 373, 16 L. Ed. 2d 629, 86 Sup. Ct. 1523 (1966), the Supreme Court of the United States held that an individual charged with a “petty” offense has no constitutional right to a trial by jury.

A “petty” offense is defined in 18 U.S.C. § 1, as follows: “Any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500, or both, is a petty offense.” (Italics ours.)

Since the maximum penalty which could have been imposed in the instant case was $300 fine and 90 days in jail, the denial of a jury trial to a person charged with such a petty offense would not be in violation of the sixth amendment to the United States Constitution, as construed by the United States Supreme Court.

Finally, the respondent moves this court to dismiss the case because he has not been afforded a speedy trial on the merits as provided by RCW 10.46.010 and as guaranteed by the state and federal constitutions.

RCW 10.46.010 provides:

If a defendant indicted or informed against for an offense, whose trial has not been postponed upon his own application, be not brought to trial within sixty days after the indictment is found or the information filed, the court shall order it to be dismissed, unless good cause to the contrary is shown. (Italics ours.)

Respondent moved the court that he be afforded a jury trial. His trial on the merits was “postponed upon his own application.” Therefore, his conduct in this regard brings him within the statutory exception.

Both the state and federal constitutions guarantee a defendant a speedy trial on the merits. Constitutional guarantees can be waived. See In re Ritchie v. Rhay, 63 Wn.2d 508, 387 P.2d 967 (1963); Pierce v. Somerset Ry., 171 U.S. 641, 43 L. Ed. 316, 19 Sup. Ct. 64 (1898). Where, as here, a defendant by his own action delays the trial of his cause on the merits, he waives his constitutional right to a speedy trial.

For reasons stated, the writ of prohibition entered by the Superior Court for Benton County is quashed, and the cause remanded with instructions to proceed in accordance with the views herein expressed.

Donworth, Weaver, and Hale, JJ., concur.