COURTS ‑- POLICE ‑- VIOLATION OF STATE MOTOR VEHICLE CODE ‑- JURY TRIAL.
A person charged with a criminal violation of the state motor vehicle code before a police court judge who is not also a justice of the peace in a second class city does not have a constitutional right to a trial by jury in that court but said right is insured on appeal to the superior court where a jury de novo trial may be demanded.
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April 18, 1962
Honorable Avery Garrett
State Representative, 47th District
450 Langston Road
Cite as: AGO 61-62 No. 116
By letter previously acknowledged you requested an opinion of this office on a question which we paraphrase as follows:
Where a person charged with a criminal violation of the state motor vehicle code is tried before a police court judge in a second class city does he have a constitutional right to a trial by jury?
We answer your question in the negative as explained in our analysis.
As a matter of background, it should be pointed out that prior to 1955, police court judges who were not also justices of the peace did not have jurisdiction, in their capacity as police judge, over a criminal action for violations of the state motor vehicle code. However, by the enactment of chapter 393, Laws of 1955, the legislature in § 4 thereof vested police court judges with jurisdiction over such offenses. This section codified as RCW 46.08.190, reads as follows:
"Every justice of the peace and police court judge shall have concurrent jurisdiction with superior court judges of the state for all violations of the provisions of this title and may impose punishment provided therefor."
There is no provision in the above section or in any other section [[Orig. Op. Page 2]] found in chapter 393, Laws of 1955, which provided for a jury trial. However, in cases tried before a justice court (whether or not he is also a police court judge) or a superior court, the defendant may demand a jury as a matter of right. See, RCW 10.04.050. See, also, Article I, § 21, and § 22 (Amendment 10) Washington State Constitution.
While the legislature has specifically prohibited jury trials when a person is tried before a police court judge for violation of municipal ordinances (see, RCW 35.23.600), the statutes are silent on the question as to an accused person's right to a trial by jury for violation of the state motor vehicle code tried before a police court judge in a second class city who is not also a justice of the peace. In addition, there is no provision prescribing the procedure for impaneling a jury inany case tried before a police court in a second class city.
For the reasons hereinafter stated, it is our opinion that the failure of the legislature to provide for, or a police court in a second class city to grant, a defendant accused of a violation of the state motor vehicle code a jury trial in the first instance does not deny him his constitutional right to a jury trial since he is entitled to such right when his case is taken to the superior court on appeal or writ of review.
InBellingham v. Hite, 37 Wn. (2d) 652, 225 P. (2d) 895 (1950), the court held that a statute disallowing trial by jury in cases tried before a police court judge for violations of a municipal ordinance does not abridge the constitutional guarantee of trial by jury where ". . . there is a right of appeal without any unreasonable restrictions to a court in which a jury trial may be had." The court found such a right of appeal to have been granted by Rem. Rev. Stat. § 8993, now codified as RCW 35.22.530 through 35.22.560. The court stated specifically:
". . . But we need not discuss the question of whether either the class of offense or the severity of the penalty is such as to require a trial by jury, for the apparent answer to appellant's contention is that the right of jury trial has never been taken from him. Under the statute, he was entitled to appeal to the superior court, where his case would have been triedde novo. Rem. Rev. Stat., § 8993 [P.P.C. § 151-31]. There, he would have had the right to a full trial by jury. Spokane v. Smith, 37 Wash. 583, 79 Pac. 1125. As is well stated in the headnote to [[Orig. Op. Page 3]] 50 C.J.S. 861, Juries, § 132 (c):
"'The constitutional right to a jury trial in criminal cases is secured, although such a trial is not authorized in the first instance, provided there is a right of appeal without any unreasonable restrictions to a court in which a jury trial may be had.'" (p. 657.)
We recognize that the above case can be distinguished from the question submitted on the ground that therein the legislature expressly prohibited jury trials for municipal offenses; whereas, here, for violation of state offenses jury trials are neither prohibited nor allowed. However, we feel theHite case, in effect, provides the answer to your question since, as stated above, a defendant convicted of the state offense in a police court of a city of the second class, has in our opinion the right to a trial by jury on appeal or review in the superior court.
RCW 35.23.600 relating to jurisdiction of police judges in second class cities provides:
". . . All civil or criminal proceedings before such police judge and judgments rendered by him, shall be subject to review in the superior court of the proper county by writ of review or appeal. The procedure, in case of appeal or by writ of review, shall be in accordance with the provisions now governing appeals in justice's courts as near as may be."
InSpokane v. Smith, 37 Wash. 583, 79 Pac. 1125 (1905), the court considered the question of whether the right to appeal to superior court from a police court conviction carries with it the right to trial by jury. The statute there under consideration, like RCW 35.23.600, supra, provided that "All civil or criminal proceedings before such police judge and judgments rendered by him, shall be subject to review in the superior court of the proper county by writ of review or appeal." The following excerpt from the opinion of the court, at page 586, sets forth the court's answer to the question presented:
". . . Appellants insist that the above authorizes nothing more than a review for mere error, and that it does not include the right of trial by jury. We think the term 'appeal' is sufficient to carry the right to a full trial, inasmuch as the [[Orig. Op. Page 4]] superior court is not an appellate court for the mere review of error on appeal, but reaches matters of error by the writ of review when error only is sought to be corrected. The case is, therefore, triable on appeal in the same manner as an ordinary criminal case." (Emphasis supplied.)
While it is not established beyond all doubt, it is our opinion based on the foregoing that a person tried in a police court of a second class city for violation of the state motor vehicle code does not have a constitutional right to a jury trial in the police court. A jury trial may, however, be demanded by the defendant on appeal. This, under the reasoning of the Hite case guarantees and preserves a person's constitutional right to a trial by jury.
It may well be that in the future a person tried by a police court judge will demand a jury and, when the same is denied, will appeal to the superior court. If such a situation occurs we will be then provided with a judicial determination of the question you have raised. You may well feel that in view of the present state of the law that it may be desirable to introduce some legislation at the next session clarifying the issue.
We trust the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
M. H. HEMMEN
Assistant Attorney General