Opinion
Law Office of Robert Hooker, By Robert Hooker and Michael Miller, Tucson, for Petitioners/Appellants.
Michael D. House, Tucson City Attorney, By Laura Brynwood and George W. Bromley, Tucson, Ulrich and Anger, P.C., By Paul G. Ulrich, Phoenix, for Real Party in Interest.
OPINION
ESPINOSA, Chief Judge.
¶ 1 Petitioners/appellants Douglas Kennedy; Jason Tankersley; Boone Operations, LLC; Fairfax Management Company, Inc.; Resource Recovery Trust, Inc.; and Lawyers Title of Arizona, Inc., in its capacity as trustee, challenge the superior court's denial of their petition for special action in which they contested a Tucson City Court magistrate's denial of their request for a jury trial on misdemeanor charges of violating the Tucson Code (T.C.). On appeal, they argue the superior court abused its discretion in declining jurisdiction of their petition, claiming their constitutional right to a jury trial in any later civil action based on the same behavior will be precluded by A.R.S. § 13-807. Appellants further contend that A.R.S. §§ 22-406 and 22-220 provide them a right to a jury trial on the "civil infraction counts" based on violations of the T.C. and the Land Use Code (L.U.C.). For the reasons set forth below, we conclude that a jury trial is not warranted for these misdemeanor charges and civil infractions and affirm the superior court's declination of special action jurisdiction .
Background and Standard of Review
¶ 2 Appellants manage a landfill on property adjacent to a City of Tucson landfill. In September 2001, the City filed a complaint in city court alleging appellants had violated T.C. § 11-12, squatting on City property, a class one misdemeanor; T.C. § 11-47, committing a public nuisance, a class one misdemeanor; T.C. § 11-49, injuring public property, a class one misdemeanor; and T.C. § 11-58, depositing offensive matter, a class three misdemeanor. The complaint further charged civil infractions of T.C. § 15-75, placing debris on public property; L.U.C. § 5.3.6.1(B), expanding a nonconforming use; and L.U.C. § 5.5.2.3, expanding an existing site without a certificate of compliance. Kennedy was also charged individually with third-degree criminal trespass, a class three misdemeanor under A.R.S. § 13-1502. Appellants filed a petition for special action in Pima County Superior Court after the Tucson City Court magistrate denied their request for a jury trial. The superior court declined jurisdiction and this appeal followed. We have jurisdiction pursuant to A.R.S. § 12-2101(B). See Norgord v. State ex rel. Berning, 201 Ariz. 228, 33 P.3d 1166 (App.2001).
¶ 3 On appeal from a special action initiated in superior court, we conduct a bifurcated review to consider the superior court's acceptance or refusal of jurisdiction and its decision on the merits. Bazzanella v. Tucson City Court, 195 Ariz. 372, 988 P.2d 157 (App.1999). When the superior court declines jurisdiction of the special action and does not rule on the merits, we determine only whether the court abused its discretion in declining jurisdiction. Files v. Bernal, 200 Ariz. 64, 22 P.3d 57 (App.2001). However, when the superior court's decision, as in this case, necessarily involves issues of law, our review is de novo. See id.
Right to Jury Trial for Misdemeanor Criminal Offenses
¶ 4 Article II, § 23 of the Arizona Constitution, on which appellants rely, states that "[t]he right of trial by jury shall remain inviolate." Under well-established Arizona Supreme Court authority, however, the right to a jury trial guaranteed by the Arizona Constitution applies only to serious, not petty, offenses. Benitez v. Dunevant, 198 Ariz. 90, 7 P.3d 99 (2000); State ex rel. Dean v. Dolny, 161 Ariz. 297, 778 P.2d 1193 (1989); Rothweiler v. Superior Court, 100 Ariz. 37, 410 P.2d 479 (1966); State v. Cousins, 97 Ariz. 105, 397 P.2d 217 (1964). As the City correctly points out, the test for determining when a criminal defendant is constitutionally entitled to a jury trial is the three-prong test originally enunciated in Rothweiler. Those prongs are: "(a) the relationship of the offense to common law crimes; (b) the severity of the potential penalties made available by statute; and (c) the moral quality of the offense." Benitez, 198 Ariz. 90, ¶ 7, 7 P.3d 99, ¶ 7; see also Dolny. Any one prong is sufficient to warrant a jury trial, Bazzanella, with the focus on the offense, not the defendant. Benitez.
¶ 5 The legislature has codified the first prong in A.R.S. § 22-425(A), which states that, "[i]n the trial of offenses for violation of ordinances of cities or towns of such a nature as by the common law were not triable before a jury, no jury trial shall be granted." Appellants cite no authority, nor have we found any, supporting the proposition that the offenses with which they have been charged carried with them the right to a jury trial at common law. Indeed, case law indicates that those charged with similar offenses under the common law were not entitled to jury trials. See State v. Quintana, 195 Ariz. 325, 987 P.2d 811 (App.1999) (defendant charged with misdemeanor criminal trespass not entitled to jury trial); People v. One 1941 Chevrolet Coupe, 37 Cal.2d 283, 231 P.2d 832 (1951) (right to jury trial did not exist at common law in action to abate public nuisance); Weiss v. State ex rel. Cardine, 455 P.2d 904 (Wyo.1969) (same).
¶ 6 Addressing the second prong of the Rothweiler test, we note that, under T.C. § 1-8(1), the maximum potential penalties for misdemeanor code violations are a $2,500 fine, six months' imprisonment, thirty-six months' probation, or a combination thereof. In Benitez, our supreme court found maximum penalties of six months' imprisonment and a $2,500 fine generally insufficient to warrant a jury trial. Adding a potential term of probation does not mean appellants are subject to a severe penalty. See Mungarro v. Riley, 170 Ariz. 589, 826 P.2d 1215 (App.1991) (possible six-month prison sentence and $2,500 fine did not make offense jury trial eligible); see also United States v. Nachtigal, 507 U.S. 1, 113 S.Ct. 1072, 122 L.Ed.2d 374 (1993) (driving under influence of intoxicant conviction carrying $5,000 maximum potential fine did not entitle defendant to jury trial ).
¶ 7 As for the third prong, "[t]he term 'moral turpitude' describes conduct which is 'depraved and inherently base' or refers to 'acts that adversely reflect on one's honesty, integrity, or personal values.' " Frederickson v. Superior Court, 187 Ariz. 273, 274, 928 P.2d 697, 698 (App.1996), quoting Mungarro, 170 Ariz. at 590, 826 P.2d at 1216. The charges here--squatting on City property, committing a public nuisance, injuring City property, and criminal trespass--are not depraved or base and do not implicate appellants' honesty, integrity, or personal values. See Quintana (misdemeanor criminal trespass not crime of moral turpitude). Consequently, appellants are not entitled to a jury trial on the misdemeanor criminal offenses.
¶ 8 Appellants nevertheless argue that they should be afforded a right to a jury trial in this action because, should they be found guilty of the misdemeanors charged, § 13-807 will bind them to any determinations of fact the magistrate makes in this case, thereby effectively violating their constitutional right to a jury trial in any later civil action on those factual determinations. See Ariz. Const. art. II, § 23. In pertinent part, § 13-807 states: "A defendant convicted in a criminal proceeding is precluded from subsequently denying in any civil proceeding brought by the victim or this state against the criminal defendant the essential allegations of the criminal offense of which he was adjudged guilty, including judgments of guilt resulting from no contest pleas." We need not resolve this issue, however, because appellants are, in effect, requesting this court to resolve a question based on events that had not happened when either of the lower courts made their rulings. This we will not do. Our review is limited to the record before the trial court. Schaefer v. Murphey, 131 Ariz. 295, 640 P.2d 857 (1982); West v. Baker, 109 Ariz. 415, 510 P.2d 731 (1973); GM Dev. Corp. v. Community Am. Mortgage Corp., 165 Ariz. 1, 795 P.2d 827 (App.1990).
¶ 9 Furthermore, nothing before the trial court indicated that the City had filed a civil action against appellants. In fact, the only suggestion in the record of any other litigation involving these parties is a notice of claim against the City, filed only by appellant Boone Operations, that asserts a claim for breach of contract, not the property-related torts of trespass and nuisance upon which the misdemeanor charges against appellants are based. In any event, the express language of § 13-807 does not address civil actions initiated by criminal defendants, only victims or the state, nor does it preclude a jury trial in any later civil action brought by the state or a victim; it only prevents defendants in such actions from denying the "essential allegations" of offenses of which they have been found guilty.
Similarly, nothing in the record that was before the city court or the superior court supports appellants' assertions of "clearly overlapping issues." Appellants sought to supplement the record on appeal with pleadings from their subsequent action against the City, including their complaint and the City's counterclaim, both admittedly filed after the superior court's ruling and the filing of the notice of appeal. Rule 11(e), Ariz. R. Civ.App. P., 17B A.R.S., allows the correction or modification of an appellate record, but not expanding it to include pleadings that did not exist when the trial court ruled.
Appellants do not raise the subject of issue preclusion, and we, therefore, do not address it.
Right to Jury Trial for Civil Infractions
¶ 10 Appellants additionally argue they are statutorily entitled to a jury trial for the "civil infraction counts" pursuant to §§ 22-406 and 22-220. Section 22-406 permits a city or town to "maintain a civil action in the municipal court for the recovery of a penalty or forfeiture provided for the violation of an ordinance" and mandates that the action "be brought and conducted as [are] civil actions in justice of the peace courts." Section 22-220 applies to civil actions brought in justice courts, subsection (B) of which states: "Either party may demand a jury at any time before trial, and if not then demanded, trial by jury shall be deemed waived. This subsection does not apply to civil traffic violations for which citations are issued under title 28." Appellants argue these statutes required the city court magistrate to grant their request .
¶ 11 In Goldman v. Kautz, 111 Ariz. 431, 531 P.2d 1138 (1975), our supreme court rejected an identical argument challenging a denial of a jury trial request made pursuant to A.R.S. § 22-320, a provision nearly identical to § 22-220, but containing stronger language. Section 22-320 applies to criminal actions filed in justice courts and states: "A trial by jury shall be had if demanded by either the state or defendant. Unless the demand is made ... before commencement of the trial, a trial by jury shall be deemed waived." (Emphasis added.) In rejecting the petitioner's argument, the court stated:
We do not think [§ 22-320] grants a substantive right, but, rather, was intended to be procedural and must be read as meaning that a trial by jury shall be had if demanded in cases where a jury trial is appropriate. If the Legislature intended to grant a jury trial in every case, it would have no doubt said so in plain, explicit language.
Goldman, 111 Ariz. at 432, 531 P.2d at 1139. We find that reasoning applicable here. Indeed, A.R.S. § 9-500.21 expressly provides that municipal civil offenses are to be heard by hearing officers without a jury. Similarly, Rule 4, Tucson City Ct. Local Prac. & Proc., 17B A.R.S., approved by our supreme court, provides that civil infraction cases shall be heard by a magistrate without a jury. Accordingly, we conclude appellants were not entitled to a jury trial on the civil infractions.
This statute is reflected in T.C. § 8-9, prohibiting jury trials for ordinance violations "which by common law were not triable before a jury," like those at issue here as discussed earlier.
Disposition
¶ 12 Based on the record in this case, we see no abuse of discretion by the superior court in declining special action jurisdiction of this matter and, therefore, affirm its ruling.
DRUKE, P.J. and PELANDER, J., concurring.