*1 Ct. Neb. Sup. No. 73-6943. v. Nebraska. Johnson Certiorari denied.
Mr. Justice Douglas, violating gambling
Petitioner was convicted of a city ordinance, carrying maximum Following a trial municipal judge, petitioner was convicted and sentenced to 100 days jail $500. in and fined Under law, Nebraska in a prosecution municipal unavailable in court city for violation aof ordinance. The Nebraska rejected petitioner’s courts right assertion to a under the Sixth Amendment, ground no right applies prosecutions such offenses a maximum penalty for six months less. provides Constitution in by jury for trial two
places. III, provides Article § Trial of “[t]he except in Crimes, Cases shall be Impeachment, Jury . . . And provides per- .” the Sixth Amendment part: tinent
“In prosecutions, the accused shall enjoy right speedy public to a trial, by an impartial jury of the State and district wherein the crime (Emphasis shall have been committed . . . .” added.)
Despite specific these a jury references to in the trial of “all crimes” “all criminal prosecutions” the Court has held enjoys that the accused no demand trial for “petty offenses.”
The notion of a class of
“petty offenses”
which
prosecution would carry
no
trial first sur-
faced
Wilson,
Court
the dicta of Callan v.
U. S. 540, 555
which
held that
conspiracy
offense did not
in the
belong
“petty”
“Petty
class.
of-
by sum-
as those
be defined
fenses”
*2
adoption
prior
law
at common
mary proceedings
pros-
petty-offense
exclusion of
Constitution. The
repeated
was
trial
ecutions from the
Louisiana,
139 U. S.
cases. Natal v.
several later
challenge
involved
Fourteenth Amendment
(1891),
a
pri-
of
regulating
ordinance
location
to a Louisiana
before
violation was
marketplaces.
vate
Prosecution for
$25 fine
only
was
magistrate
In
that
days.
holding
or
for 30
conviction under
jury trial did not vitiate
absence of
Callan
but
repeated
ordinance,
dicta,
we held
years
decision came more than
proceed-
in state
In
(1968).
ings, Duncan v.
U. S.
petty-
Not until District Columbia v. 617 (1937), did the Court rule that certain prosecutions are guarantee. outside the constitutional That case involved a prosecution the District of Co- lumbia for violation of crime, a statute it a punishable by a fine of or or less, days less, sell goods second-hand without a license. required, was not the Court expanded the definition “petty offenses” to embrace all those for which the punishment failed to requisite meet a severity. standard of The de- gree of severity required to invoke constitutional “by objective to be ascertained standards such may be observed in the laws practices of the community taken as a of its social gauge and ethical judgments.” Id., at years In the since the Court has struggled greater precision to achieve in drawing the line from Dun separates “petty” crimes.
can Im 160-162; plement Co., Mfg. Frank v. United 147 (1969); Baldwin New expression Court’s latest quest came Term certainty last Pennsylvania, 418 said There it was that “our fixed established petty line between and serious offenses: crimes those more carrying sentence of than six months serious are those sentence or less crimes months Id., petty apparently began crimes.” 512. What *3 exception in Callan a narrow as upon rigid based the nature of has become a the offense1 upon punishment.2 based the maximum authorized rule If I judgment make, mine would entertain petitioner’s considerable doubt offense can be de- States, scribed Frank “petty.” supra, as See at 160 (Black, J., dissenting). Petitioner’s offense carried a maximum penalty imprisonment of six and a A reading dividing literal of the “fixed line” place stated in petitioner’s offense in “a it category, carries sentence more than six recognize, months.” however, that the Court has expressly never considered how the interaction of imprisonment affects fines line, although it has adverted defining §C. crime in “petty” a which both
1 Compare opinion Mr. Justice Harlan’s in Callan for the Court Wilson, S. 540 (1888), dissenting opinion U. with his later United 2 Special applied respect contempts rules been with to criminal Taylor specified. for which a maximum is not Implement Mfg. Co., (1968); Frank v. United S. 216 Hayes, $500 fine are author- six months’ and a g., 161; ized. Duncan See e. States, supra, Frank Court’s United On the terms, granted own to resolve the should ambiguity. myself, expressed by
For adhere to the views in Baldwin v. New Black, joined, whom supra, at the Constitution forbids the kind of 74-76, that drawing line in which engaged. is now “in prosecu- tions,” judicial Framers foreclosed freedom to decide un- certain point forcefully warranted. made Justices McReynolds separate opinion and Butler in in Dis- their trict Columbia supra:
“In a suit at common law recover $20.00, above jury trial us, improbable is assured. And to it seems that while providing protection such a trifling the framers of the matter Constitution in- tended it might be denied where for a considerable time or liability for fifteen times $20.00 confronts the S., accused.” 300 U. at 633-634. Until the language of the Constitution is amended, we are not free to impose our judgment as to what offenses *4 are “petty.” in my Since, view, the to jury in all criminal among is privileges the and immunities of citizens of the United States the States by the forbidden Fourteenth Amendment from abridg- ing, see Gideon v. Wainwright, 372 335, 345-347 (1963) (concurring opinion), apply would the same rule both state and prosecutions. federal See also Duncan v. supra, at 162-171 J., (Black, concurring). The judgment might below arguably permitted to stand under a view that the of trial by jury is not fully applicable to the States. This was
953 g., Duncan expressed view of e. Harlan, in, Mr. Justice id., Florida, 171-193, and Williams 78, view, do not share id., 106-107, com- see event it has not majority manded a Court.
Petitioner denied unquestionably what is prosecution. criminal to con- grant certiorari his sider Sixth Amendment claim. Bailey Secretary
No. 73-7019. Weinberger, Cer- C. A. 9th Cir. Health, Education, Welfare. tiorari denied. Douglas joined Justice White, Justice
Mr. Mr. and Stewart, Appeals adhering Ninth to Circuit, Court of for the previous Stuckey Weinberger,
its 488 F. 2d (en 488 (1973) 904 and Wallace F. Weinberger, banc), (en 2d 606 (1973) 417 U. 913 cert. denied, banc), Secretary held in this case that decision of HEW on request reopen previous denial merits of a claim is far so committed benefits (h) agency discretion § 205 Security Act, Social 53 624, amended, Stat. Stat. 632, (h), Stat. 405§ Stat. U. S. C. pursuant review of that decision is available not the Administrative Procedure Act. C. 701§ See U. S. (a)(2). This conflict with the hold Celebrezze, ings three Circuits Cappadora other F. 1 (CA2 Richardson, 2d Davis v. 1966); 2dF. (CA3 Richardson, 1972); Maddox 2dF. (CA6 1972). It prime is a function this Court’s jurisdiction kind precisely resolve of con presented. flict here (b). This Court’s (1) Rule 19 Per our haps permit state of docket will not us to resolve disagreements between courts of appeals, between federal and courts, perhaps state we tolerate must