(concurring in part; dissenting in part).
“In all criminal prosecutions,” the Sixth Amendment of the Constitution of the United States provides, “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 commit*207ted ...” Note that the drafters of the Bill of Rights did not write “speedy and public trial or an impartial jury.” An accused is guaranteed both.
Regardless, the plurality of Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970), decided that the speedy trial was more important and that “all criminal proceedings” did not include “petty offenses.” A person accused of a crime with a punishment of less than six months is not guaranteed a jury trial by judicial fiat. Finding that the punishment of Bowers, et al., goes beyond six months including the possibility of jail time, I dissent with Issue I.
South Dakota, although not granting a jury trial for every criminal prosecution, supposedly grants more rights to its citizens than Baldwin. In State v. Wikle, 291 N.W.2d 792 (S.D.1980), this Court held that a defendant in a criminal prosecution is entitled to a jury trial upon demand when charged with any state law or state ordinance in which a direct penalty of incarceration for any period of time could be imposed.
Four years later, this Court modified Wikle. In State v. Auen, 342 N.W.2d 236 (S.D.1984) (a speeding offense), this Court held that a jury request may be denied when a trial court assures the defendant that a jail sentence will not be imposed. SDCL 23-1A-17 specifically denies trial by jury for “petty offenses.” Although the meaning and scope of “petty offenses” is not defined, Wikle and Auen have limited the scope to offenses which carry a maximum jail time of less than six (6) months.
In Wikle, I wrote that I voted to affirm the conviction only because no jail time was involved. Wikle at 795 (Henderson, J., concurring specially). When this Court handed down Auen, I dissented because incarceration was involved. Auen at 239 (Henderson, J., dissenting).
In Wikle, the defendant appealed from a conviction on a city traffic offense and a state offense of failing to display an automobile inspection sticker on his auto. In the opinion, this Court held that no right to a jury trial existed under the offenses committed and various similar offenses, “relatively innocuous in character such as violations of traffic laws, sanitation codes, and building codes, [which] can be viewed as merely regulatory rather than criminal in their thrust as long as incarceration is not one of the modes of punishment.” Id. at 793, 794. This language overruled parts of this Court’s decision in City of Brookings v. Roberts, 88 S.D. 623, 226 N.W.2d 380 (1975). However, Wikle expressly approved (the language was characterized as dicta in Auen) of the position espoused in the special concurrences in Roberts. Wi-kle, 291 N.W.2d at 794. These concurrences expressed the rule that in any criminal prosecution, whether for violation of state law or city ordinance, in which direct penalty of incarceration for any period of time could be imposed, the accused would be entitled to trial by jury upon demand. Id. at 794. In approving this language from the Roberts concurrences, the Wikle Court aligned itself with the concurring opinion of Justices Black and Douglas in Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970). In a landmark case in this nation, State v. Opperman, 247 N.W.2d 673, 674 (S.D.1976), the South Dakota Supreme Court held:
There can be no doubt that this court has the power to provide an individual with greater protection under the state constitution than does the United States Supreme Court under the federal constitution.
(Quoting Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975)). In many judicial seminars and conferences, which I have attended in a period of nearly 20 years as a trial judge and appellate justice, Opperman has been examined and hailed as an enlightened decision. See also, Mr. Justice William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489, 491 (January 1977), wherein he expressed:
But the point I want to stress here is that state courts cannot rest when they have afforded their citizens the full protections of the federal Constitution. *208State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law. The legal revolution which has brought federal law to the fore must not be allowed to inhibit the independent protective force of state law — for without it, the full realization of our liberties cannot be guaranteed.
Oh, that I, Frank Henderson, your servant, could also be a font. Liberty is a glorious feast for those who eat at the constitutional table.
In the case before us, appellants were charged with disorderly assembly (§ 26-27, Rev.Ord.City of Sioux Falls) and unlawful occupancy of property (SDCL 22-35-6). Whereas both offenses carry a maximum jail time of six months, the magistrate trial judge denied the request for a jury trial:
I'm not, first of all, going to open up the Pandora’s box of giving trials to every Class 2 offense. I have done that in petty theft cases because no one wants to be a thief, but otherwise I’m not going to open up that box ... so the request for a jury trial will be denied.
Attempting to follow Auen, the magistrate trial court assured the appellants that they would receive no jail sentence. Nevertheless, after the trial, the magistrate court imposed suspended sentences, community service, fines and probation. Although the circuit court eliminated the suspended sentences pursuant to SDCL 23A-31-1, the one year probation remained intact.
Both the magistrate court and circuit court erred in denying appellants a jury trial based upon the crime being a petty offense with no jail time. The first problem is defining “petty.” Although the meaning and scope of petty crimes are not statutorily defined, the Court announced a formula in Wikle to distinguish the two. Courts must look to the maximum punishment and the nature of the offense, consider the common law background of the offense, determine if society views the offense with sufficient opprobrium, and consider the consequences of conviction. Wikle at 794.
Furthermore, Baldwin does not hold that offenses which carry a maximum punishment of six months or less are automatically petty offenses. Baldwin, 399 U.S. at 69, 90 S.Ct. at 1888. Rather, when deciding if an offense is “petty,” the U.S. Supreme Court seeks out objective criteria reflecting the seriousness with which society regards the offense, and “we have found the most relevant such criteria in the severity of the maximum authorized penalty.” Baldwin at 68, 90 S.Ct. at 1888. Attempting to heed to that holding, this state broadly defines a “petty crime” as an offense that carries a maximum jail time of six (6) months or less. Auen at 237-238. What happened to our “eternal vigilance” here — as commanded by Thomas Jefferson, as being “the price of liberty?”
Under Baldwin, we are supposed to be looking at the maximum penalty, not simply jail time. Had appellants been charged with the state law version of disorderly assembly, rather than the city version, they would have violated a Class 1 misdemeanor with a maximum incarceration of one (1) year. SDCL 22-10-9, 22-10-11, 22-6-2. Thus, under state law, the court could not deny the appellants their mandatory and constitutionally guaranteed jury trial. Admittedly, these appellants were not charged with the state version. However, the inequity is obvious: Prosecutors can deftly deny a defendant a jury trial by simply charging him with the city version of a crime.
Granted, police and prosecutors may arrest and charge at their own discretion. But in Sioux Falls, a person can be denied a jury trial if the city officials believe the actions are petty, even though the state categorizes the actions as serious or when the judge decides not to “open up the Pandora’s box,” or when the prosecutor, as he stated during the motion hearing, does not want the appellants to use “the Court system as a forum by which to politicize their beliefs[.]”
Despite the majority’s labeling it as such, this protest was anything but petty. Be*209fore the protests began, organizers met with the police in hopes of keeping their assembly peaceful. Anticipating problems, the police, on the other hand, called in 21 off-duty officers, sent 77 officers to the protest, rented buses, brought video cameras, instituted new methods for arresting and identifying arrestees who might not be carrying identification. This was all set up in advance at an expense of nearly $5,000. Police Captain Gerald Kiesacker stated that he had anticipated more violence and more resistance than at previous similar demonstrations. Consider: The press was given its own observation area during the arrests. Petty? Baloney!
This was not a situation where police established a “speed trap” or anticipated a rash of “petty thefts.” This was a major operation. Albeit the ordinance violations may label the appellants’ actions as less than serious, the police hardly treated these actions as “petty.” Rather, law enforcement treated this entire event as being “serious.”
Additionally, placing appellants on a one-year probation without benefit of a jury trial also denied them their Sixth Amendment rights. After conviction of an offense not punishable by death or life imprisonment, a defendant may be placed on probation. SDCL 23A-27-12. Probation is an alternative to confinement where the defendant is under the control of the trial court in a manner designed to avoid incarceration. State v. Huftile, 367 N.W.2d 193, 196 (S.D.1985). Public protection is provided through the ability of the trial court to revoke probation and impose a sentence should the defendant violate the terms of the probation. State v. Marshall, 247 N.W.2d 484, 487 (S.D.1976); State v. Herrlein, 424 N.W.2d 376 (S.D.1988); SDCL 23A-27-21. Such was done to several co-defendants at the trial level who are not a party to this appeal.
Thus, appellants were subject to a one-year punishment, a violation of which could subject them to jail time. Furthermore, though they may not be incarcerated, their actions are still under the disciplinary eye of the trial court. Appellants Dorr and Ellenbecker took jail time in lieu of the fine. In Wikle, the special concurrence expressed: “If one day of the defendant’s freedom was involved, I would dissent, but only his pocketbook is involved.” Here, freedom is involved. Recall students, Baldwin said to look at the maximum penalty to define “petty,” and held “that a possible six-month penalty is short enough to permit classification of the offense as ‘petty.’ ” Baldwin at 69, 90 S.Ct. at 1888. Today’s holding permits a penalty beyond that six-month boundary.
Probation, in itself, involves the freedom of a defendant. Even under the logic of Baldwin and Auen, the defendant escapes the grasp of the State within six months. Is not the purpose of the courts to protect, not chisel away, the rights of the accused? These appellants were not provided with a trial by jury, which is their constitutional right in a criminal prosecution of this nature. I declare that the charges in issue before us do not come within the exception to trial by jury in a criminal case which ^Ltiew provided. It was reversible error for the circuit court to affirm the magistrate court’s denial of appellants’ request for trial by jury.
When the shadows are cast upon my judicial mantel, I am comforted with the conviction that I stood for jury trials and not against them. As Teddy Roosevelt once expressed: “I shall not join those weak and timid souls who know neither victory nor defeat.” I have fought the good fight. Under the Statist’s muskets, I have again fallen. So what. “Woe unto you, when all men shall speak well of you!” [Luke 6:26], And so — it may be said of these appellants.