SUPREME COURT OF ARIZONA
En Banc
JUSTIN DERENDAL, ) Arizona Supreme Court
) No. CV-04-0037-PR
Petitioner-Appellant, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CV 03-0380
HON. DEBORAH GRIFFITH, JUDGE OF )
THE PHOENIX CITY COURT, ) Maricopa County Superior
) Court
Respondent Judge, ) No. CV LC 03-000001-001DT
)
PHOENIX CITY PROSECUTOR'S OFFICE, )
)
Real Party in Interest- ) O P I N I O N
Appellee. )
__________________________________)
Order from Phoenix Municipal Court
No. 2760118
The Honorable Deborah Griffith
AFFIRMED
________________________________________________________________
Appeal from the Superior Court of Maricopa County
No. CV LC 03-000001-001DT
The Honorable Michael D. Jones
AFFIRMED
________________________________________________________________
Opinion of the Court of Appeals, Division One
No. 1 CA-CV-03-0380
VACATED
________________________________________________________________
LAW OFFICES OF NEAL W. BASSETT Phoenix
By Neal W. Bassett
And Natalee Segal
And
LAURIE A. HERMAN, Attorney at Law Scottsdale
By Laurie A. Herman
Attorneys for Justin Derendal
PETER VAN HAREN, Phoenix City Attorney Phoenix
By William C. Solomon, Assistant City Prosecutor
And Samuel K. Lesley, Assistant City Prosecutor
Attorneys for Phoenix City Prosecutor’s Office
JAMES J. HAAS, Maricopa County Public Defender Phoenix
By Kathleen N. Carey, Deputy Public Defender
Attorneys for Amicus Curiae
Maricopa County Public Defender
STEPHEN PAUL BARNARD Tucson
Attorney for Amicus Curiae
Arizona Attorneys for Criminal Justice
MICHAEL G. RANKIN, Tucson City Attorney Tucson
By Laura R. Brynwood
Principal Assistant City Attorney - Deputy
And William F. Mills, Supervising Prosecutor
Criminal Division
Attorneys for Amicus Curiae City of Tucson
JOSEPH R. BERTOLDO, Scottsdale City Attorney Scottsdale
By Kenneth M. Flint
Assistant City Prosecutor
Attorneys for Amicus Curiae City of Scottsdale
TOBIN C. SIDLES, Town Prosecutor
Town of Oro Valley Oro Valley
And Dillon Fishman, Rule 38(e) Law Student
University of Arizona, College of Law
Attorneys for Amicus Curiae Town of Oro Valley
DEBORAH J. SPINNER, Mesa City Attorney Mesa
By Roger Kevin Hays
Chief Assistant City Prosecutor
And Stephen Mercer, Assistant City Prosecutor
Attorneys for Amicus Curiae City of Mesa
LAW OFFICE OF TREASURE VANDREUMEL Phoenix
By Treasure VanDreumel
And
GARY KULA, City of Phoenix Public Defender Phoenix
Contract Office
Attorneys for Amicus Curiae City of Phoenix Public Defender
________________________________________________________________
M c G R E G O R, Vice Chief Justice
2
¶1 We granted review to consider whether Arizona should
retain the test set out in Rothweiler v. Superior Court, 100
Ariz. 37, 410 P.2d 479 (1966), to determine when the Arizona
Constitution mandates that a criminal offense be eligible for
trial by jury.
I.
¶2 Justin Derendal was charged in Phoenix Municipal Court
with drag racing,1 a class one misdemeanor, Ariz. Rev. Stat.
(A.R.S.) § 28-708.B (2001), punishable by a maximum of six
months incarceration, see A.R.S. § 13-707.A.1 (2001), and a
$2,500 fine, see A.R.S. § 13-802.A (2001). The municipal court
denied Derendal’s request for a jury trial, and Derendal filed a
special action in superior court. The superior court accepted
jurisdiction but denied relief, and Derendal appealed to the
court of appeals.
¶3 The court of appeals applied the three-part test
established by this court in Rothweiler and, concluding that
drag racing failed to meet any of the three tests for jury
____________
1
“A person shall not drive a vehicle or participate in any
manner in a race, speed competition or contest, drag race or
acceleration contest, test of physical endurance or exhibition
of speed or acceleration or for the purpose of making a speed
record on a street or highway.” Ariz. Rev. Stat. (A.R.S.) § 28-
708.A (2001).
3
eligibility set out in Rothweiler, affirmed the superior court’s
judgment.
¶4 We granted Derendal’s petition for review and ordered
the parties to file supplemental briefs addressing whether the
Rothweiler test should remain the test for determining jury
trial eligibility in Arizona. We exercise jurisdiction pursuant
to Article 6, Section 5.3 of the Arizona Constitution and A.R.S.
§ 12-120.24 (2003).
II.
¶5 In 1966, this court adopted a three-pronged test to
decide whether, with regard to a particular criminal offense,
the federal or Arizona Constitution guarantees the right to a
jury trial. Relying on both federal and Arizona constitutional
law, we defined three factors as relevant to that inquiry: (1)
the relationship of the offense to common law crimes; (2) the
severity of the statutory penalties that apply; and (3) the
moral quality of the act. Rothweiler, 100 Ariz. at 42, 410 P.2d
at 483. Over time, Arizona courts have come to view these
factors as three independent prongs in the constitutional
analysis of the right to jury trial. See, e.g., State v.
Harrison, 164 Ariz. 316, 317, 792 P.2d 779, 780 (App. 1990)
(“Each prong [of the Rothweiler test] is independently
sufficient to give rise to a jury trial.”).
4
¶6 Twenty-three years after our Rothweiler decision, the
United States Supreme Court held that any criminal offense for
which the maximum statutory penalty is less than six months
incarceration is presumptively a petty offense to which the
right of trial by jury guaranteed by the Sixth Amendment to the
United States Constitution does not attach. Blanton v. City of
North Las Vegas, 489 U.S. 538, 543 (1989). On several
occasions, this court has rejected invitations to replace the
Rothweiler test with the Blanton test, reasoning that the
Arizona Constitution requires greater protection of the right to
trial by jury than does the federal constitution. See, e.g.,
Benitez v. Dunevant, 198 Ariz. 90, 94 ¶ 10, 7 P.3d 99, 103
(2000); State ex rel. McDougall v. Strohson, 190 Ariz. 120, 126-
27, 945 P.2d 1251, 1257-58 (1997); cf. State ex rel. Dean v.
Dolny, 161 Ariz. 297, 299, 778 P.2d 1193, 1195 (1989). We have
never expressly considered whether we should adopt a modified
version of Blanton. We do so today.
¶7 Two separate provisions of the Arizona Constitution
secure the right to jury trial for certain criminal defendants.
The first, Article 2, Section 23, provides that “[t]he right of
trial by jury shall remain inviolate.” The second, Article 2,
Section 24, further provides that “[i]n criminal prosecutions,
the accused shall have the right to . . . a speedy public trial
5
by an impartial jury of the county in which the offense is
alleged to have been committed . . . .”
¶8 We have established several principles that govern the
interpretation of these constitutional provisions. We have long
interpreted them as preserving, rather than creating, the right
to jury trial as it existed in Arizona prior to statehood.
Bowden v. Nugent, 26 Ariz. 485, 488, 226 P. 549, 549-50 (1924);
Brown v. Greer, 16 Ariz. 215, 217, 141 P. 841, 842 (1914). In
addition, it is well settled that under the common law at the
time of Arizona’s statehood, only those accused of “serious
offenses” had a right to trial by jury. See, e.g., Goldman v.
Kautz, 111 Ariz. 431, 432, 531 P.2d 1138, 1139 (1975);
Rothweiler, 100 Ariz. at 42, 410 P.2d at 482; Bowden, 26 Ariz.
at 491, 226 P. at 551. Thus, Article 2, Sections 23 and 24 do
not independently grant a right to jury trial to all criminal
defendants; rather, they preserve the right to jury trial for
those accused of serious offenses. Benitez, 198 Ariz. at 93 ¶
4, 7 P.3d at 102; Dolny, 161 Ariz. at 299, 778 P.2d at 1195. As
a result, the “test for jury eligibility in this state requires
an inquiry into the seriousness of the offense.” Benitez, 198
Ariz. at 92 ¶ 4, 7 P.3d at 101.
A.
¶9 The language of Article 2, Section 23 mandates that we
retain the Rothweiler test’s first prong: the relationship of
6
the offense to common law crimes. We have consistently held
that the phrase “shall remain inviolate” preserves the right to
jury trial as it existed at the time Arizona adopted its
constitution. Benitez, 198 Ariz. at 93 ¶ 4, 7 P.3d at 102;
Bowden, 26 Ariz. at 488, 226 P. at 550.2 Thus, our constitution
requires that the state guarantee a right to jury trial for any
defendant charged with an offense for which a jury trial was
granted prior to statehood.
¶10 We have further held that when the right to jury trial
for an offense existed prior to statehood, it cannot be denied
for modern statutory offenses of the same “character or grade.”
Bowden, 26 Ariz. at 491, 226 P. at 551. Because the Arizona
legislature abolished all common law crimes more than thirty
years ago, see A.R.S. § 13-103.A (1978), many newly minted
statutory criminal offenses have no precise analog in the common
law.3 To determine whether Article 2, Section 23 assures the
____________
2
This has been the almost universal interpretation of the
phrase “shall remain inviolate” in those jurisdictions whose
constitutions contain equivalent language. See, e.g., Wheeler
v. Caldwell, 75 P. 1031 (Kan. 1904); State ex rel. Jackson v.
Kennie, 60 P. 589 (Mont. 1900); Kuhl v. Pierce County, 62 N.W.
1066 (Neb. 1895); State v. McClear, 11 Nev. 39 (1876); Vaughn v.
Scade, 30 Mo. 600 (1860); Work v. State, 2 Ohio St. 297 (1853);
Ross v. Irving, 14 Ill. 171 (1852).
3
We acknowledge, as the State asserts, that the farther
Arizona moves from the era of common law crimes, the more
difficult it becomes for parties and courts to compare a modern
statutory crime with common law offenses.
7
right to trial by jury, we consider whether a modern crime has a
common law antecedent. We regard a jury-eligible, common law
offense as an antecedent of a modern statutory offense when the
modern offense contains elements comparable to those found in
the common law offense. See Bowden, 26 Ariz. at 490, 226 P. at
550.
¶11 In Bowden, for instance, we determined that a
defendant charged with operating a poker game in violation of a
city ordinance was entitled to a jury trial because the charge
was similar in character to the common law crime of conducting
or maintaining a gambling house and the elements of the crimes
were substantially similar. 26 Ariz. at 490, 226 P. at 550.
¶12 Similarly, in Urs v. Maricopa County Attorney’s
Office, the court of appeals concluded that reckless driving,
defined in A.R.S. § 28-693.A (Supp. 2000) as “driv[ing] a
vehicle in reckless disregard for the safety of persons or
property . . . ,” is in the “character of operating a motor
vehicle so as to endanger [any] property [or] individual,” which
was a jury-eligible offense at common law. 201 Ariz. 71, 74 ¶
8, 31 P.3d 845, 848 (App. 2001) (quotations omitted). Because
the elements of these offenses are substantially similar, the
8
court held that reckless driving is a jury-eligible offense
under Arizona’s constitution.4
B.
¶13 If an offense does not have a common law antecedent,
determining whether the Arizona Constitution requires a trial by
jury depends upon whether the offense falls within the guarantee
of Article 2, Section 24, which provides in pertinent part:
In criminal prosecutions, the accused shall have the
right to . . . a speedy public trial by an impartial
jury of the county in which the offense is alleged to
have been committed . . . .
Ariz. Const. art. 2, § 24. Because Section 24 is Arizona’s
analog to the Sixth Amendment of the United States Constitution,5
we have construed it consistently with the federal constitution
to preserve the right to jury trial only for “serious,” as
opposed to “petty,” crimes. See Rothweiler, 100 Ariz. at 41,
____________
4
See also, e.g., City Court v. Lee, 16 Ariz. App. 449, 494
P.2d 54 (1972). There, the court found that a Tucson ordinance
prohibiting all-nude dancing had a direct antecedent in the
common law offense of indecent exposure, which was defined as
“[t]he exhibition of one’s private parts in a public place.”
Id. at 452, 494 P.2d at 57 (citations omitted). Although the
court also found that the ordinance involved a crime of moral
turpitude, that portion of the analysis was unnecessary. Once a
court determines that a common law antecedent for which a jury
trial was granted prior to statehood exists for a criminal
offense, the inquiry is concluded, and the matter must be tried
to a jury.
5
“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 .
. . .” U.S. Const. amend. VI.
9
410 P.2d at 482 (“This Court has consistently held that the
right as guaranteed in the Constitution does not apply to petty
offenses.”); Schick v. United States, 195 U.S. 65, 70 (1904)
(“[I]t is obvious that the intent [of the framers] was to
exclude from the constitutional requirement of a jury the trial
of petty criminal offenses.”). In Rothweiler, we noted two
factors relevant to the determination of seriousness: (1)
severity of the penalty and (2) moral quality of the act. 100
Ariz. at 42, 410 P.2d at 483.
1.
¶14 The United States Supreme Court long followed a case-
by-case approach to determine the seriousness of an offense for
purposes of the right to trial by jury. See Baldwin v. New
York, 399 U.S. 66 (1970); Duncan v. Louisiana, 391 U.S. 145
(1968); District of Columbia v. Clawans, 300 U.S. 617 (1937);
Schick, 195 U.S. 65; Callan v. Wilson, 127 U.S. 540 (1888).
These decisions “focused on the nature of the offense and on
whether it was triable by a jury at common law.” Blanton, 489
U.S. at 541. Central to the analysis of the nature of the
offense was the Court’s understanding that the seriousness of
the offense and the severity of the penalty attached to that
offense are mutable and dependent on the standards of each
generation. Thus, the Court’s analysis reflected a willingness
to adapt the jury right to the changing sensibilities of the
10
culture. See Clawans, 300 U.S. at 627 (recognizing 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”).
¶15 As its Sixth Amendment jurisprudence developed, the
Court began to define a more objective standard for determining
seriousness. In its decisions, the Court moved toward increased
emphasis upon the severity of the penalty attached to an
offense. Whereas the Court had in 1937 “refused to foreclose
consideration of the severity of the penalty as an element to be
considered in determining” whether a statutory offense is
serious enough to warrant a jury trial, Clawans, 300 U.S. at 625
(emphasis added), by 1970 the Court held that the “most relevant
such criteria [is] the severity of the maximum authorized
penalty.” Baldwin, 399 U.S. at 68.
¶16 In Blanton, the Court took a definitive step toward
creating an objective standard by abandoning its previous case-
by-case analysis of seriousness in favor of a bright-line rule
for determining jury eligibility under the Sixth Amendment. The
Court held that any offense for which the maximum statutory
penalty is less than six months incarceration is presumptively a
petty offense to which the right of trial by jury does not
attach. 489 U.S. at 543. The Court also held, however, that a
11
defendant could rebut this presumption by showing that the
legislature had “pack[ed] an offense it deems ‘serious’ with
onerous penalties that nonetheless do not puncture the 6-month
incarceration line.” Id. (quotations omitted).
¶17 In Blanton, the Supreme Court recognized that “[i]n
fixing the maximum penalty for a crime, a legislature
‘include[s] within the definition of the crime itself a judgment
about the seriousness of the offense.’” Id. at 541 (quoting
Frank v. United States, 395 U.S. 147, 149 (1969)). Because the
legislature, acting as a representative body, responds to
changing mores and values of the society it represents, the
Court declined to substitute its own judgment as to the
seriousness society attaches to a particular offense for that of
the legislature. See id. Thus, the Court abandoned the
somewhat subjective common law approach for a bright-line test
that focuses on the severity of the penalty attached to an
offense.
2.
¶18 During the first fifty years of Arizona’s statehood,
our serious offense analysis essentially mirrored that of the
United States Supreme Court and focused primarily upon the
nature of the offense and whether the common law afforded a
right to a jury trial. As the Supreme Court began focusing upon
the severity of the penalty rather than the nature of the
12
offense, we also began to make this transition. Thus, in State
v. Cousins, 97 Ariz. 105, 397 P.2d 217 (1964), this court first
addressed the question whether an offense for which no common
law antecedent existed might nevertheless be jury-eligible as a
result of the severity of the penalty attached to that offense.
In Cousins, we held that a maximum punishment of a $300 fine and
up to three months incarceration did not constitute punishment
sufficiently severe to require a jury trial for the offense of
drunk and disorderly conduct.6 Id. at 109, 397 P.2d at 219. In
so holding, we relied upon the United States Supreme Court’s
decision in Clawans. Id.
¶19 In Rothweiler, we expanded this analysis to include
consideration of statutory consequences other than the length of
incarceration and amount of the fine imposable. Thus, we held
that a charge of misdemeanor driving under the influence of
intoxicating liquor7 qualified as a serious offense triable to a
jury in part because the defendant faced not only incarceration
and a fine but also the potential suspension of his driver’s
license. 100 Ariz. at 44, 410 P.2d at 484. Because of the
“grave consequences” resulting from such a suspension, as well
____________
6
We reached this conclusion only after we first determined
that drunk and disorderly conduct had no jury-eligible common
law antecedent. Cousins, 97 Ariz. at 107-08, 397 P.2d at 218.
7
At the time, A.R.S. § 28-692 defined misdemeanor D.U.I.
The offense currently is described in A.R.S. § 28-1381 (2004).
13
as the moral quality of the act, we concluded that the penalty
was so severe as to require a jury trial for the offense. Id.
¶20 During the interim between our Rothweiler decision in
1966 and the Supreme Court’s decision in Blanton in 1989, we
decided several cases in which we relied on federal law in
declining to extend the right to trial by jury to misdemeanors
punishable by no more than six months incarceration. See
Goldman, 111 Ariz. at 432, 531 P.2d at 1139 (“The denial of a
jury trial for offenses the punishment for which does not exceed
a $300 fine nor six months in jail does not present a federal
constitutional question. Nor does the Arizona
Constitution . . . require a jury trial in petty offenses.”)
(citing Baldwin, 399 U.S. 66); State ex rel. Baumert v. Superior
Court, 127 Ariz. 152, 154-55, 618 P.2d 1078, 1080-81 (1980)
(noting that “[i]t is the law, federal and state, that a
possible penalty of a 6-month jail sentence is not so severe as
to require trial by jury” and finding a $1,000 fine not serious
enough to require a jury trial) (citing Muniz v. Hoffman, 422
U.S. 454 (1975)); Spitz v. Mun. Court, 127 Ariz. 405, 408, 621
P.2d 911, 914 (1980) (noting the federal rule that a jury is not
required when the punishment is no more than six months
incarceration and holding that “an additional sanction, such as
suspension of [a] liquor license . . . does not mandate a jury
trial”) (citing Duncan v. Louisiana, 391 U.S. 145 (1968)). Not
14
until our post-Blanton decisions did our analysis begin to
diverge from that of the United States Supreme Court.
C.
¶21 Although we have declined to adopt the Blanton
analysis, we have moved toward a more objective, bright-line
test for determining seriousness of an offense, the second prong
of the Rothweiler test. We have held, for example, that “the
most significant element [in determining whether an offense is
jury eligible] is always the potential punishment authorized by
the statute creating the crime . . . .” Strohson, 190 Ariz. at
124, 945 P.2d at 1255. Moreover, we have held that “[a]s a
general rule, the penalties attendant to misdemeanor offenses in
this state are, of themselves, not enough to secure a jury
trial.” Benitez, 198 Ariz. at 94 ¶ 13, 7 P.3d at 103. We now
expressly adopt the Blanton presumption and hold that when the
legislature classifies an offense as a misdemeanor and
punishable by no more than six months incarceration, we will
presume that offense to be a petty offense that falls outside
the jury requirement of Article 2, Section 24 of the Arizona
Constitution. By adopting that approach, we leave to the
legislature primary responsibility for determining, through its
decision as to the penalty that accompanies a misdemeanor
offense, whether the offense qualifies as a “serious offense.”
Like the Court in Blanton, however, we recognize that some
15
criminal offenses give rise to direct consequences that render
punishment “severe,” even though the legislature sets the
maximum period of incarceration at six months or less. Article
2, Section 24 guarantees a jury trial if a defendant can
demonstrate that additional grave consequences that attend a
misdemeanor conviction reflect a legislative determination that
the offense is indeed “serious.”
¶22 Our previous decisions establish that not every
consequence that follows a criminal conviction qualifies for
consideration under Article 2, Section 24. To rebut the
presumption that an offense does not require a jury trial, a
defendant must establish that a consequence of conviction meets
several criteria.
¶23 First, the penalty must arise directly from statutory
Arizona law. See Blanton, 489 U.S. at 543 n.8 (holding that in
a serious offense analysis, a court should consider only
penalties resulting directly from state action). As we
explained in Strohson, it is neither practical nor possible for
“a state court to conjure up all possible consequences that
might flow from a state court conviction when those consequences
do not flow from the law of the state.” 190 Ariz. at 125, 945
P.2d at 1256. Likewise, courts cannot conjure up all possible
consequences that might result from non-statutory sources.
Judges who are hard-pressed to “delve into the complexities of
16
federal law in each case to determine whether the individual
defendant is entitled to a jury trial,” id., would find it even
more difficult to conjure up every possible societal
repercussion a defendant might face upon conviction of a
misdemeanor criminal offense.8
¶24 Second, the consequence must be severe. See Benitez,
198 Ariz. at 96-97 ¶ 26, 7 P.3d at 105-06 (recognizing driving
as a privilege rather than a right and holding that the
“potential loss of the driving privilege [was not] a grave or
serious consequence”). To mandate a jury trial, collateral
consequences must “approximate in severity the loss of liberty
that a prison term entails.” See Blanton, 489 U.S. at 542.
Thus, for example, we have previously held insufficient to prove
seriousness a $1,000 fine, Baumert, 127 Ariz. at 155, 618 P.2d
at 1081, or the potential loss of a liquor license, Spitz, 127
Ariz. at 408, 621 P.2d at 914.
¶25 Finally, we will consider only those consequences that
apply uniformly to all persons convicted of a particular
offense. As we stated in Strohson:
[W]e have never determined jury eligibility based upon
an analysis of the individual defendant before the
court. If we were to do so . . . we would have the
____________
8
To the extent our decision in State ex rel. Dean v. Dolny,
161 Ariz. 297, 778 P.2d 1193 (1989), came to a contrary
conclusion regarding grave consequences, we now expressly
overrule it.
17
anomalous situation where some persons would be
entitled to a jury trial and others would not,
although charged with exactly the same substantive
Arizona crime.
190 Ariz. at 125, 945 P.2d at 1256. In other words, when
determining the right to jury trial, we are concerned with the
seriousness of the offense, rather than with the impact of a
conviction on an individual defendant. For example, we will not
consider the effect a conviction might have upon a defendant’s
ability to obtain or maintain certain professional licenses, as
such a consequence does not affect all defendants convicted of
an offense.
¶26 The modified version of the Blanton test that we adopt
today preserves the right to jury trial for serious offenses,
while recognizing the legislature’s primary responsibility for
classifying crimes as to severity. We also retain a defendant’s
right to a jury trial for a misdemeanor offense if the defendant
can establish that conviction results in additional severe,
direct, uniformly applied, statutory consequences.
D.
¶27 Unlike the first two prongs of the Rothweiler test,
the final Rothweiler factor—moral quality of the offense—
possesses no discernable constitutional pedigree.
¶28 We first announced the moral quality test in
Rothweiler in response to language in Clawans, where the Supreme
18
Court observed that “those standards of action and of policy
which find expression in the common and statute law may vary
from generation to generation.” 300 U.S. at 627. Agreeing with
the Supreme Court that an analysis of the constitutional right
to jury trial requires reference to the changing standards of
seriousness and severity from generation to generation, we found
preferable a flexible test that would allow us to consider those
changing standards within Arizona. We intended that the
subjective “moral quality” prong provide that flexibility. See
Benitez, 198 Ariz. at 95 ¶ 17, 7 P.3d at 104 (finding
recognition of a right to jury trial for crimes of moral
turpitude logically consistent with the theory that a jury
reflects societal morality and therefore is best equipped to
decide the fate of one who is charged with offending that
morality).
¶29 As initially set forth in Rothweiler, the moral
quality factor focused more upon the nature of the offense than
on the character of the defendant. 100 Ariz. at 44, 410 P.2d at
484-85. Thus, in that case we held that driving under the
influence of intoxicating liquor was a “matter of statewide
concern” and “repugnant to the community . . . because of the
potential harm and evil that may result from such practice.”
Id.
19
¶30 In subsequent cases, we expanded the moral quality
prong beyond the scope of its initial purpose. Only two years
after our Rothweiler decision, we began to transform the moral
quality analysis into a “moral turpitude” test, shifting our
focus from the nature of the crime and toward the nature of the
defendant’s character and conduct. See O’Neill v. Mangum, 103
Ariz. 484, 485, 445 P.2d 843, 844 (1968) (finding that “it can
hardly be suggested that one charged or guilty of mere ‘drunk
and disorderly’ conduct is a depraved and inherently base
person”). In Dolny, we expanded the moral quality test even
further, concluding that while we were “undoubtedly concerned
with the stigma associated with certain crimes” in Rothweiler,
the moral quality test is concerned primarily with “the nature
of the consequences resulting from a conviction, such as . . .
losing one’s driver’s license.” 161 Ariz. at 300, 778 P.2d at
1196 (emphasis added). In Benitez, we expanded upon the
definition of acts of moral turpitude originally pronounced in
O’Neill to include “actions which ‘adversely reflect on one’s
honesty, integrity, or personal values.’” 198 Ariz. at 95 ¶ 15,
7 P.3d at 104 (citations omitted).
¶31 As the “moral quality” test became more subjective and
ambiguous, inconsistent outcomes resulted. Compare Strohson,
190 Ariz. 120, 945 P.2d 1251 (holding that misdemeanor assault
classified as domestic violence is not a crime of moral
20
turpitude), and Bazzanella v. Tucson City Court, 195 Ariz. 372,
988 P.2d 157 (App. 1999) (finding misdemeanor child abuse not a
crime of moral turpitude), with State v. Superior Court, 121
Ariz. 174, 589 P.2d 48 (App. 1978) (holding that misdemeanor
shoplifting is a crime of moral turpitude), and Frederickson v.
Superior Court, 187 Ariz. 273, 928 P.2d 697 (App. 1996) (finding
leaving the scene of an accident to be a crime of moral
turpitude). Moreover, “[b]ecause the ‘moral quality of the act’
is in the eye of the beholder, there [seemed to] be as many
diverse results as there [were] judges.” Benitez, 198 Ariz. at
97 ¶ 32, 7 P.3d at 106 (Martone, J., concurring).
¶32 We can no longer justify use of the “moral quality”
prong of Rothweiler to determine whether one charged with a
misdemeanor criminal offense is entitled to a trial by jury.
The test, as developed and applied, has caused inexplicable
results that depend upon the evaluation by a judge that a
particular crime involves “moral turpitude” or upon a judge’s
conclusion that only a “depraved and inherently base person”
would commit a particular offense. As Blanton makes clear, the
Sixth Amendment does not require application of any “moral
quality” test and, for the reasons set out above, we conclude
that the Arizona Constitution does not require such an approach.
¶33 We recognize that the doctrine of stare decisis
cautions against overruling a former decision. See Goldman, 111
21
Ariz. at 432-33, 531 P.2d at 1139-40. In this instance,
however, our decision to overturn a portion of our holding in
Rothweiler does not offend the principles underlying stare
decisis. As we have previously noted, stare decisis “is
grounded on public policy that people should know what their
rights are as set out by judicial precedent and having relied on
such rights in conducting their affairs should not have them
done away with by judicial fiat.” White v. Bateman, 89 Ariz.
110, 113, 358 P.2d 712, 713-14 (1961). We have also
acknowledged, however, that “the doctrine of stare decisis
should not require a slavish adherence to authority . . . .”
Goldman, 111 Ariz. at 432, 531 P.2d at 1139.
¶34 Our concern for following earlier authority is
minimized when, as here, the prior rule has not provided the
consistency the doctrine of stare decisis is designed to
protect. Rather than provide consistency, the moral quality
prong of Rothweiler has caused continuing uncertainty for
parties and courts as they try to determine which misdemeanor
offenses satisfy this portion of the Rothweiler test. By
eliminating the moral quality prong of the Rothweiler analysis,
we provide assurance for both defendants and the State that the
right to jury trial for an offense will not vacillate depending
upon the ability of a given judge “to predict the moral
22
culpability the public attaches to an act.” Benitez, 198 Ariz.
at 97 ¶ 32, 7 P.3d at 106 (Martone, J., concurring).
¶35 Derendal argues that we cannot abandon the moral
quality prong of Rothweiler without severely curtailing the
right to jury trial in Arizona. History does not support such a
conclusion. In fact, despite the continuous expansion of the
moral quality prong of Rothweiler, this court has never held an
offense to be jury-eligible solely on the basis of moral
turpitude. Moreover, during the almost forty years since the
Rothweiler decision, the court of appeals has explicitly labeled
only four misdemeanor offenses as crimes of moral turpitude.
See City Court v. Lee, 16 Ariz. App. 449, 494 P.2d 54 (1972)
(bottomless dancing); State v. Superior Court, 121 Ariz. 174,
589 P.2d 48 (shoplifting); Mungarro v. Riley, 170 Ariz. 589, 826
P.2d 1215 (App. 1991) (false reporting to law enforcement
agency); Frederickson, 187 Ariz. 273, 928 P.2d 697 (leaving the
scene of an accident). In two of these cases, the appellate
court also found the offense to have a common law antecedent
requiring a jury trial. Lee, 16 Ariz. App. at 452, 494 P.2d at
57 (bottomless dancing related to common law indecent exposure);
State v. Superior Court, 121 Ariz. at 176, 589 P.2d at 50
(shoplifting related to common law larceny). Thus, while our
decision today should substantially reduce uncertainty as to
which offenses merit a trial by jury, it will have little effect
23
upon the number of offenses for which our constitution mandates
a jury trial.
III.
¶36 We hold that the analysis of jury eligibility for
trials of misdemeanor offenses in Arizona requires a two step
process. First, Article 2, Section 23 requires that a court
determine whether a statutory offense has a common law
antecedent that guaranteed a right to trial by jury at the time
of Arizona statehood. In making that decision, the court should
consider whether substantially similar elements comprise the
common law offense and the offense charged. If so, the inquiry
concludes, and the defendant’s right to a trial by jury is
established.
¶37 If, however, the court finds no common law antecedent
for which a jury trial was required, the court must analyze the
seriousness of the offense under Article 2, Section 24. Because
this provision is Arizona’s analog to the Sixth Amendment, we
apply a modified Blanton test. If the legislature has defined
an offense as a misdemeanor punishable by no more than six
months incarceration, we presume that the offense is petty, and
no jury right attaches. A defendant may rebut this presumption,
however, by demonstrating that the offense carries additional
severe, direct, uniformly applied, statutory consequences that
reflect the legislature’s judgment that the offense is serious.
24
If a defendant makes that showing, Article 2, Section 24
guarantees a right to trial by jury.
IV.
¶38 Applying this test to the case at hand, we agree with
the court of appeals that drag racing, as prescribed by A.R.S. §
28-708.A, is not a jury-eligible offense. Derendal argues that
drag racing is related to reckless driving, which has been held
to be a jury-eligible offense because it had a common law
antecedent that was jury-eligible. Thus, according to Derendal,
drag racing also must be tried to a jury.
¶39 The test for determining whether a modern offense is
of the same character as a common law offense is whether the
modern offense shares substantially similar elements with the
common law offense, not whether the offense in question relates
in some way to another modern offense for which a jury-eligible
common law antecedent exists. As the court of appeals noted, it
had regarded reckless driving as a jury-eligible offense because
the element of reckless disregard compares with the common law
offense of operating a vehicle in a manner that endangers
individuals or property. Derendal v. Griffith, 207 Ariz. 51, 55
¶ 16, 83 P.3d 51, 55 (App. 2004). The statute prohibiting drag
racing does not include the element of reckless disregard, and
we find no other common law antecedent. Thus, Article 2,
25
Section 23 does not require that a charge of drag racing be
tried to a jury.
¶40 We next inquire whether, under Article 2, Section 24,
drag racing qualifies as a serious offense. Because drag racing
is a class one misdemeanor punishable by no more than six months
incarceration, we presume that it is not a jury-eligible
offense. To overcome that presumption, Derendal must
demonstrate additional severe, direct, uniformly applied,
statutory consequences of conviction for the offense. At the
trial court, Derendal argued that the potential loss of his
driver’s license upon conviction qualifies as a grave
consequence and shows that the legislature views drag racing as
a serious crime. We previously have rejected that argument,
holding that the potential loss of the driving privilege does
not qualify as a serious consequence necessitating a jury trial.
Benitez, 198 Ariz. at 96-97 ¶ 26, 7 P.3d at 105-06.9 We
therefore hold that Derendal has failed to show severe, direct,
uniformly applied, statutory consequences and that drag racing
is not a jury-eligible offense.
____________
9
Derendal faces the same statutory consequences as Benitez
faced: up to six months incarceration, a possible fine of
$2,500, and potential loss of his driver’s license for up to
ninety days. See Benitez, 198 Ariz. at 92 ¶ 1, 7 P.3d at 101.
26
V.
¶41 For the foregoing reasons, we vacate the decision of
the court of appeals and affirm the order of the municipal court
and judgment of the superior court denying Derendal a jury
trial.
__________________________________
Ruth V. McGregor
Vice Chief Justice
CONCURRING:
_________________________________
Charles E. Jones, Chief Justice
_________________________________
Rebecca White Berch, Justice
_________________________________
Michael D. Ryan, Justice
_________________________________
Andrew D. Hurwitz, Justice
27
Derendal v. Griffith
Court: Arizona Supreme Court
Date filed: 2005-01-14
Citations: 104 P.3d 147, 209 Ariz. 416
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