Herbert L. RICHTER, Appellant, v. Charles L. FAIRBANKS, Scotts Bluff County Sheriff, Appellee.
No. 89-2199
United States Court of Appeals, Eighth Circuit
Submitted Feb. 12, 1990. Decided May 23, 1990.
903 F.2d 1202
With regard to the present case, it is not necessary to delve into the less than empirical governmental/proprietary distinction test.2 Here, having found that Joske‘s suit for lost profits is an action sounding in tort, the claim would fail under both
The construction and operation of an athletic track is a distinct part of the secondary educational process performed by Kirkwood High School. Thus, the ability to contract to build the athletic track and also the ability to enforce the provisions of such a contract are purely governmental functions. The fact that Kirkwood would have received incidental pecuniary benefits in the form of gate receipts and concession stand money does not outweigh the educational function of the athletic track for students. The building of an athletic track by a high school cannot be said to be a proprietary function merely because admission is charged and hot dog sales occur.
Therefore, the order of the district court denying Kirkwood‘s motion for judgment notwithstanding the verdict with respect to the wrongful bond filing claim is reversed; the jury‘s verdict against Kirkwood School District R-7 in the amount of $37,500 is set aside; and Joske‘s claim for wrongful bond filing set forth in Count I is dismissed.
FAGG, Circuit Judge, dissenting.
Because I cannot conclude the district court committed reversible error, I would affirm that court‘s judgment.
LAY, Chief Judge.
Herbert L. Richter brought a petition for a writ of habeas corpus challenging the denial of his request for a jury trial arising from his conviction for driving while under the influence of alcohol (DWI), third offense, in violation of Scottsbluff, Nebraska, ordinances. The district court1 denied him relief. We find he was entitled to a jury trial, and conditionally grant him a writ of habeas corpus.
BACKGROUND
Nebraska law specifically authorizes cities and villages to pass their own DWI ordinances.
Richter was charged with third-offense DWI under Scottsbluff Ordinance 21-2140, and with refusing to take a breath test under Scottsbluff Ordinance 21-2143. After his case was set for trial in county court, Richter filed a written demand for a jury trial. The judge denied the motion, and after trial found him guilty on both charges.
Under Scottsbluff Ordinance 21-2140, the penalty for third-offense DWI is three to six months imprisonment, revocation of the offender‘s driver‘s license for 15 years, and a $500 fine. The penalty for refusing to take a breathalyzer test is seven days imprisonment, a $200 fine, and a six month suspension of driving privileges. The court imposed the maximum sentence for each violation, with the two sentences to run concurrently.
DISCUSSION
The Supreme Court in Duncan v. Louisiana, 391 U.S. 145, 156, 88 S.Ct. 1444, 1451, 20 L.Ed.2d 491 (1968), emphasized the important safeguards derived from a trial by one‘s peers in serious cases:
The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it.
In Blanton v. City of North Las Vegas, 489 U.S. 538, 109 S.Ct. 1289, 103 L.Ed.2d 550 (1989), however, the Court reaffirmed that “there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision.” Id. 109 S.Ct. at 1291 (citation omitted). The court made clear the distinction between a petty and serious offense lies in the “objective indications of the seriousness with which society regards the offense,” and that the most important objective indication is “the severity of the maximum authorized penalty.” Id. at 1292 (citations omitted). A maximum authorized prison term of more than six months implicates the right to a jury trial, while a term of six months or less creates a presumption of no jury trial right. Id. at 1293. A defendant facing a maximum possible term of six months or less may still be entitled to a jury trial “if he can demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a ‘serious’ one.” Id. at 1293.
Richter argues, first, that he in fact faced a maximum possible prison term of six months and seven days, because the court could have required his terms to run consecutively instead of concurrently. Second, he argues that the penalty revoking his license for 15 years, when added to the maximum six month prison term, indicates a legislative determination that third-offense DWI constitutes a serious criminal offense, for which he should be entitled to a jury trial.
The Blanton Court did not indicate whether the sixth amendment requires aggregating the maximum possible term for each count of a multiple-count conviction to determine if the total exceeds six months even though none of the individual sentences does. We need not reach that issue in this case, however, because we conclude that the 15-year license revocation, considered together with the maximum six month prison term, is a severe enough penalty to indicate that the Nebraska legislature considers third-offense DWI a serious crime.
Revocation of a license to operate a motor vehicle very often can work a substantial hardship on its holder. See Argersinger v. Hamlin, 407 U.S. 25, 48, 92 S.Ct. 2006, 2018, 32 L.Ed.2d 530 (1972) (Powell, J. concurring) (revocation of driver‘s license “is more serious for some individuals than a brief stay in jail“); see also Note, The Federal Constitutional Right to Trial by Jury for the Offense of Driving While Intoxicated, 73 Minn. L. Rev. 122, 139-40 n.
We acknowledge we should not substitute our judgment for that of the legislature in determining what is deemed a serious crime. However, in applying the constitutional right to jury trial, Blanton specifically counsels us not to automatically consider a crime petty merely because the legislature sets the maximum sentence at six months or less. We must also consider the severity of the other attached penalties. 109 S.Ct. at 1292.
The Supreme Court‘s analysis of the facts in Blanton supports our conclusion that adding the 15-year license revocation to the six month prison term resulted in a penalty severe enough to warrant a jury trial in this case. In Blanton a DWI conviction led to a penalty of up to six months imprisonment, a $1000 fine, a 90-day suspension of the offender‘s driver‘s license, and compelled attendance at an alcohol abuse education course. Because the maximum possible prison sentence did not exceed six months, the Court weighed the severity of the additional statutory penalties. The Court held that the $1000 fine was not “out of step” with a six month sentence, and that the required education course “[could] only be described as de minimis.” 109 S.Ct. at 1294 n. 9. With regard to the license suspension, the Court was unable to determine if the suspension ran concurrently with the prison term. But even if the suspension were consecutive, the court observed that the offender could obtain a restricted license after 45 days. A full suspension for 45 days and a partial suspension for another 45 days was not severe enough to raise sixth amendment concerns. Id.
Far from ruling out consideration of license revocations, the Court‘s decision implies that license revocations are exactly the kind of “additional statutory penalties” we should consider. While a 90-day suspension was not severe enough to raise sixth amendment concerns, a 15-year revocation is a substantial burden on the offender that is completely “out of step” with a six month prison term. Upholding this conviction would permit the Nebraska legislature to defeat the right to a jury trial by keeping the prison sentence to no more than six months, while finding other severe penalties to punish what it considers to be a serious offense.
We therefore conclude that Richter was denied his sixth amendment right to a jury trial. Furthermore, a necessary implication of this conclusion is that
CONCLUSION
Although both counts were tried together, a jury trial is required only for the DWI count. We find no constitutional deficiency in the conviction on the refusal to take a breathalyzer test. Petitioner‘s claims in this regard are clearly without merit; the reasoning of the magistrate sufficiently refutes them.
The denial of the writ of habeas corpus is reversed and the cause is remanded to the district court with directions that the writ be conditionally granted. If the state
BEAM, Circuit Judge, dissenting.
I respectfully dissent. The majority acknowledges that “[w]e should not substitute our judgment for that of the [Nebraska] legislature in determining what is deemed a serious crime.” Supra at 1205. I agree. Since
In this case, the Nebraska Supreme Court has also analyzed the penalty (as we have done) within the framework of Blanton v. City of North Las Vegas, 489 U.S. 538, 109 S.Ct. 1289, 103 L.Ed.2d 550 (1989). We disregard the Nebraska court‘s conclusions and substitute our own. Applying the test enunciated in Blanton, I believe this to be a petty offense for the purposes of determining the need for a jury trial.
Accordingly, I would affirm the district court‘s denial of a writ.
Randall L. Lippstreu, Scottsbluff, Neb., for appellant.
Dave Eubanks, Gering, Neb., for appellee.
LAY, Chief Judge
BEAM, Circuit Judge
* The Honorable WILLIAM C. HANSON, Senior United States District Judge for the Northern and Southern Districts of Iowa, sitting by designation.