SOUTH SALT LAKE CITY, Appellee, v. SANTIAGO STEVEN MAESE, Appellant.
No. 20160646
Supreme Court of the State of Utah
September 20, 2019
2019 UT 58
On Certification from the Court of Appeals. Third District, Salt Lake. The Honorable Judge Randall N. Skanchy. No. 155900019.
Marcus Gilson, David Lassetter, South Salt Lake City, for appellee
Santiago Steven Maese, pro se
JUSTICE PEARCE authored the opinion of the Court in which JUSTICE HIMONAS and JUSTICE PETERSEN joined.
ASSOCIATE CHIEF JUSTICE LEE authored a concurring opinion in which CHIEF JUSTICE DURRANT joined.
JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 Santiago Steven Maese has been charged with two violations of the traffic code and wants a jury to decide his case. Both the justice court and the district court rejected Maese‘s jury demand. Maese argues that the Utah Constitution guarantees the right to a jury trial in all cases, even minor traffic infractions. He therefore contends that
BACKGROUND
¶3 A Utah Highway Patrol Trooper observed Maese cross the double white lines of the HOV lane on I-15 and cross several lanes of traffic while failing to signal for at least two seconds. South Salt Lake City (City) subsequently charged Maese in justice court with failure to signal for two seconds and failure to obey traffic control devices.
¶4 At the arraignment hearing the City amended both charges to infractions, thereby depriving him of a jury trial. Maese moved to dismiss the information charging him with infractions. He argued that the prosecutor did not have the authority to amend the charges from misdemeanors to infractions, and that Utah‘s Constitution ensured a right to a jury trial in all criminal prosecutions, including those for infractions.
¶5 The justice court denied Maese‘s motion to dismiss and request for a jury trial. The justice court convicted Maese of both charges and imposed a $240 fine.
¶6 Maese appealed his conviction. In the trial de novo in the district court, Maese once again moved for a jury trial. And again Maese argued that the Utah Constitution guarantees defendants,
¶7 Maese appeals.
ISSUES AND STANDARDS OF REVIEW
¶8 Maese raises two meaty issues. First, Maese argues that the Utah Constitution‘s Separation of Powers Clause prevented the City from amending the charges against him from misdemeanors to infractions because the Utah Code designated them as misdemeanors. This presents a question of law that we review for correctness. See State v. Hernandez, 2011 UT 70, ¶ 3, 268 P.3d 822. When addressing a challenge to the constitutionality of a statute, “we presume the statute to be constitutional, resolving any reasonable doubts in favor of constitutionality.” Univ. of Utah v. Shurtleff, 2006 UT 51, ¶ 30, 144 P.3d 1109 (citation omitted).
¶9 Before we reach that question, however, we need to address the City‘s contention that we lack jurisdiction to hear Maese‘s argument. The City argues we cannot address the question because
¶10 Second, Maese posits that
ANALYSIS
I. We Lack Jurisdiction to Hear Maese‘s Challenge to the Prosecutorial Practice of Amending Misdemeanor Charges to Infractions
¶11 Maese first argues that prosecutors violate the Utah Constitution when they charge as an infraction a crime the
¶13 Maese does not challenge a statute that permits prosecutors to do what the City did here: amend charges to lower the level of the charged crime. Indeed, it does not appear that this practice enjoys any statutory authorization whatsoever. So Maese is left challenging a practice that is apparently justified by notions of prosecutorial discretion.4 Because Maese does not challenge the constitutionality of a statute or ordinance, we do not have jurisdiction over this issue on direct appeal.
¶14 This does not mean, however, that Maese—or someone in his position—is without a mechanism to press that argument. As the court of appeals has recognized, a petition for extraordinary relief under
¶15 Maese next argues that “any Utah statute or procedural rule denying the right of a jury trial in prosecutions for infractions is unconstitutional.” Specifically, he argues that
¶16
¶17
¶19 There is no magic formula for this analysis—different sources will be more or less persuasive depending on the constitutional question and the content of those sources. See State v. Tiedemann, 2007 UT 49, ¶ 37, 162 P.3d 1106. (“[W]e reject the State‘s suggestion in its brief that there is a formula of some kind for adequate framing and briefing of state constitutional issues.“). We use these sources to discern the original public meaning of the text. Neese, 2017 UT 89, ¶ 67 (“[T]his court should look to the original meaning of the Utah Constitution when properly confronted with constitutional issues.“); Am. Bush, 2006 UT 40, ¶ 12 (“The goal of this analysis is to discern the intent and purpose of both the drafters of our constitution and, more importantly, the citizens who voted it into effect.“).6
A. The Text of Article I, Section 12 Does Not Directly Speak to Whether There is a Right to a Jury Trial for a Traffic Infraction
¶21 Our task is to understand what “criminal prosecutions” meant to those who voted to approve the Utah Constitution7 and
¶22 Maese uses Salt Lake City v. Ohms, to assert that “if [a] constitutional provision is clear, then extraneous or contemporaneous construction may not be resorted to.” 881 P.2d 844, 850 n.14 (Utah 1994) (citation omitted) (internal quotation marks omitted). At the same time, Maese also refers to our language in American Bush that courts should analyze “text, historical evidence of the state of the law when [the constitution] was drafted, and Utah‘s particular traditions at the time of drafting.” 2006 UT 40, ¶ 12. And this reflects the sometimes contradictory manner in which we have spoken about constitutional analysis.
¶23 We attempted to clarify some of this confusion in In re Young, 1999 UT 6, 976 P.2d 581. There we stated:
[Appellant argues] that we should limit ourselves to the plain language of the constitution and that we should therefore not consider the history of [the relevant constitutional provision]. But the plain language is of marginal help on this question. And in such circumstances, we have rejected any such rigid rule of constitutional interpretation. In Society of Separationists v. Whitehead, 870 P.2d 916 (Utah 1993), we made it plain that in interpreting the constitution, we consider all relevant factors, including the language, other provisions in the constitution that may bear on the matter, historical materials, and policy. See id. at 920-21, 921 n. 6. Our primary search is for intent and purpose. Consistent with this view, this court has a
very long history of interpreting constitutional provisions in light of their historical background and the then-contemporary understanding of what they were to accomplish. This case, like many others, proves the wisdom of the axiom that “[a] page of history is worth a volume of logic.” Society of Separationists, 870 P.2d at 921.
Id. ¶ 15. (footnote omitted). Thus, although the text is generally the best place to look for understanding, historical sources can be essential to our effort to discern and confirm the original public meaning of the language. Although the text‘s plain language may begin and end the analysis, unlike contract interpretation, constitutional inquiry does not require us to find a textual ambiguity before we turn to those other sources. Where doubt exists about the constitution‘s meaning, we can and should consider all relevant materials. Often that will require a “deep immersion in the shared linguistic, political, and legal presuppositions and understandings of the ratification era.” Neese, 2017 UT 89, ¶ 98.
¶24 Maese nevertheless argues that the constitutional inquiry is simple because the constitutional language alone answers the question. Maese quotes
¶25 In response, the City analogizes to the United States Constitution to argue that despite plain language suggesting otherwise, the Utah Constitution excludes some class of petty offenses from the right to a jury trial. The City focuses on the parallel language of the
¶26 The City dangles a tempting argument. If the language of our constitution resembles that of its federal counterpart, and if the federal counterpart does not provide a jury trial for petty offenses, then it stands to reason that our state constitution would similarly not permit a jury trial in all cases.
¶27 But we cannot accept the City‘s invitation to interpret our constitution in lockstep with the federal and skip an analysis of our own state constitution. We have recognized that even when the text of our constitution is identical to its federal counterpart, “we do not presume that federal court interpretations of federal constitutional provisions control the meaning of identical provisions in the Utah Constitution.” State v. Briggs, 2008 UT 83, ¶ 24, 199 P.3d 935. “In fact, we have not hesitated to interpret the provisions of the Utah Constitution to provide more expansive protections than similar federal provisions where appropriate.” Id.; see also Tiedemann, 2007 UT 49, ¶ 37 (“There is no presumption that federal construction of similar language is correct.“).10
¶29 When we look to the historical record, we hope that it resembles a Norman Rockwell painting—a poignant, straightforward, and easy to interpret representation. But frequently it does not. In some cases, like this one, the historical record is more like a Jackson Pollock. And we find ourselves staring at the canvas in hopes of finding some unifying theme. After studying the colors and lines of the historical record, we find evidence that suggests a narrative.
B. Delegates to the Utah Constitutional Convention Appeared to Hold Jury Trials in High Regard, but Did Not Discuss the Specific Scope of the Right to a Jury Trial in Criminal Cases
¶30 The delegates to the 1895 Constitutional Convention never specifically discussed the breadth of the jury trial right.11 The closest comment comes from Delegate David Evans Jr., who stated, “[W]e are maintaining the right of trial by jury for any person charged with a crime.” 1 Official Report of the Proceedings and Debates of the Convention 258 (Salt Lake City, Star Printing Co. 1898) [hereinafter Proceedings]. This quote still leaves us questioning what the original understanding of a “crime” was, however. And the delegates to the convention did not discuss the meaning of a “crime,” a “criminal prosecution,” or otherwise discuss the parameters of the right to trial by jury they sought to maintain.
¶31 The delegates did, however, speak loftily about the importance of juries in our legal system. Delegate Varian commented, “I want the trial by jury to remain inviolate[,] . . . but when you come to a trial jury, that last safeguard, that last barrier, that has always stood and always will, I believe, between the people
I claim that a man‘s liberty is not in jeopardy only when the doors of the penitentiary may stand before him, or when his life is at stake. His reputation might be just as sacred, or more sacred than his life. I believe that when a man is on trial for any crime he should have a fair and impartial trial by a jury . . . .
Id. at 291-92.
¶32 Most of the debate focused on the appropriate size of juries in different courts and whether unanimity would be required. See, e.g., id. at 258-62, 286-97, 306-12, 492-95. For example, the delegates engaged in the following discussion:
Mr. Evans (Weber): Then, there is another class of jurors in courts of inferior jurisdiction. A jury shall consist of three men in both civil and criminal cases.
Mr. Eldredge: What courts are those?
Mr. Evans (Weber): Justices of the peace. All three of these men must concur and give a unanimous verdict, in criminal cases, but in civil cases two of them can render a verdict.
Id. at 493.
¶33 The debates therefore fail to speak directly to the question of the meaning of “criminal prosecutions” and accordingly when a jury would be available. Nor did the framers reference the federal counterpart or express any intent that the state standard should track the federal. But the discussions make plain that the framers highly valued the right to a jury trial and anticipated that it would play a crucial role in preserving the liberty interests of the people of Utah.
C. The Framers Drafted Our Constitution Against a Legal Backdrop Where the Federal, and Some State, Constitutions Did Not Guarantee a Jury Trial for All Offenses
¶34 Although the framers did not debate the scope of the jury trial during the Constitutional Convention, they toiled in a legal environment where it was largely understood that a jury would not be available for all offenses. Significantly, when the framers met in the Salt Lake City and County Building to draft our constitution, the federal constitution had been interpreted to exclude certain “petty” offenses from the jury trial right.
¶36 The Court first analyzed the meaning of “crime” as used in
The word ‘crime[,]’ in its more extended sense, comprehends every violation of public law; in a limited sense, it embraces offenses of a serious or atrocious character. In our opinion, the provision is to be interpreted in the light of the principles which, at common law, determined whether the accused, in a given class of cases, was entitled to be tried by a jury. It is not to be construed as relating only to felonies or offenses punishable by confinement in the penitentiary. It embraces as well some classes of misdemeanors, the punishment of which involves or may involve the deprivation of the liberty of the citizen. It would be a narrow construction of the constitution to hold that no prosecution for a misdemeanor is a prosecution for a ‘crime’ within the meaning of the third article, or a ‘criminal prosecution’ within the meaning of the sixth amendment.
Id. at 549. The Sixth Amendment‘s “enumeration . . . of the rights of the accused in criminal prosecutions[] is to be taken as a declaration of what those [common law] rules were,” that
¶37 The Court recognized that many state courts had “adjudged cases, arising under constitutions which declare, generally, that the right of trial by jury shall remain inviolate,” and had concluded that “there are certain minor or petty offenses that may be proceeded against summarily, and without a jury.” Id. at 552-53 (discussing In re Glenn, 54 Md. 572, 600, 605 (1880); McGear v. Woodruff, 33 N.J.L. 213, 216, 217 (1868); Byers v. Commonwealth, 42 Pa. 89, 94 (1862); State v. Conlin, 27 Vt. 318, 323 (1855); Williams v. City Council of Augusta, 4 Ga. 509 (1848)). The Court then quoted at length a treatise which summarized the approach taken by many state courts—prosecuting “[v]iolations of municipal by-laws[,] . . . which relate to acts and omissions that are not embraced in the general criminal legislation of the state, . . . in a summary manner” without a trial by jury. Callan, 127 U.S. at 553 (citing 1 JOHN F. DILLON, COMMENTARIES ON THE LAW OF MUNICIPAL CORPORATIONS § 433 (3d ed. 1881)).
¶38 The Court then recognized that “there is a class of petty or minor offenses not usually embraced in public criminal statutes, and not of the class or grade triable [under] common law by a jury.” Callan, 127 U.S. at 555. But conspiracy—“by no means a petty or trivial offense“—was not such an offense that could be proceeded against summarily under common law. Id. at 555, 557. The Court, after reviewing authorities that described conspiracy at common law, described it as an “offense of a grave character, affecting the public at large.” Id. at 555-56. Therefore, the federal constitution entitled a person charged with participating in a conspiracy to a jury trial. Id. at 556.
¶39 The Court then concluded that “[e]xcept in that class or grade of offenses called ‘petty offenses,’ which, according to the common law, may be proceeded against summarily in any tribunal legally constituted for that purpose, the guaranty of an impartial jury to the accused in a criminal prosecution” secures the right to a jury trial. Id. at 557. While Callan did not further define these “petty offenses” to which the right to a jury trial did not attach, Callan instructed that there existed some types of offenses to which the right to a jury trial would not attach, notwithstanding the federal constitution‘s seemingly much broader language.
¶40 State supreme courts have reasoned similarly. In McInerney v. City of Denver, for example, the Colorado Supreme Court
¶41 The Colorado court then resolved that newly created offenses were “covered by constitutional guaranties relating to trial by jury” if the offense in question belonged to a class of offenses that were triable by jury prior to the adoption of the constitution. McInerney, 29 P. at 519-20.14 The court concluded that the violation of
¶42 The absence of a more defined articulation of a “petty offense” in Callan and state supreme court cases reflects the historical complexity of the right to a jury trial. As Felix Frankfurter and Thomas G. Corcoran note in their article on petty offenses, at common law, “[t]here was no unifying consideration as to the type of criminal offense subjected to summary trial nor any uniformity in
¶43 Frankfurter and Corcoran further discuss the “striking . . . great volume of offenses” that were prosecuted without a jury at common law. Id. at 928. And while the majority of penalties imposed for these petty offenses were minor, the English parliament imposed more serious punishments such as hefty fines, imprisonment, hard labor, and even corporal punishment. Id. at 931-32. All the American colonies, to some extent, carried on the practice of summary jurisdiction for minor crimes while modifying the practice to fit each colony. Id. at 935-37. And several states later traced their practice of summary jurisdiction back to English common law as the Supreme Court recognized in Callan v. Wilson. See id. at 951 n.179, 952-62 (discussing In re Glenn, 54 Md. at 600, 605; McGear, 33 N.J.L. at 216; Byers, 42 Pa. at 94); see also Callan, 127 U.S. at 552-53 (discussing same). The common law tradition of prosecuting “petty offenses” without a jury trial evidently reverberated through the development of state and federal constitutional rights, even as states modified the
¶44 And while that question has proven difficult to answer with certainty,16 it is beyond debate that at the time the framers were drafting the Utah Constitution, the United States Supreme Court and other state supreme courts recognized that, despite the seemingly sweeping constitutional language, some classes of offenses were not included in the right to a jury trial.
D. The 1898 Code Provides Evidence of When a Defendant Would be Entitled to a Jury Trial
¶45 We turn next to the code that the Utah Legislature adopted in 1898. The 1898 Code holds particular significance because it was the first effort to codify the law after adoption of our constitution. Shortly after statehood, Governor Heber M. Wells—the former temporary secretary of the Utah Constitutional Convention—appointed a commission to propose the first state code. Proceedings, supra ¶ 30, at 12 (“Mr. Wells was unanimously elected to the position [of temporary secretary].“); Richard W. Young, Grant H. Smith & William A. Lee, Preface to UTAH REV. STAT., at (iii) (1898) (indicating
¶46 Thus, certain provisions of the 1898 Code, having been drafted in 1896 and approved in 1897, can provide persuasive evidence about what the people of Utah would have understood our state constitution to mean.17 As we read the 1898 Code, we do not expect to find a perfect enshrinement of constitutional principles or a dictionary of constitutional terms. After all, even the first Legislature could have enacted an unconstitutional law or decided to provide statutory protections broader than those they placed in the constitution. But the code may help us understand the contemporaneous public meaning of certain constitutional terms and concepts. The question before us provides a good example: knowing what cases the 1896 Utah Legislature thought would be tried to a jury can inform our thinking about what the people of Utah would have understood the constitution to mean when it refers to the “criminal prosecutions” for which a jury is guaranteed.
¶47 The 1898 Utah Criminal Code defined a crime as “an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction,” punishment by “death,” “imprisonment,” “fine,” “removal from office,” or “disqualification to hold and enjoy any office of honor, trust, or profit in this state.” Id. § 4061. The code classified a crime as either a felony or a misdemeanor. Id. § 4062. A felony was defined as “a crime which is or may be punishable with death, or by imprisonment in the state prison.” Id. § 4063. “Every other crime” was a misdemeanor. Id. Unless otherwise prescribed, a misdemeanor was “punishable by imprisonment in a county jail not exceeding six months, or by a fine in any sum less than three hundred dollars, or by both.” Id. § 4065.
¶49 And it appears that state law permitted a defendant to request a jury trial in the prosecution of any crime in the state code. The 1898 Code stated that “[n]o person shall be convicted of a public offense unless by the verdict of a jury, . . . or upon a plea of guilty, . . . or upon a judgment of a court for a public offense not amounting to [a] felony, a jury having been waived.”
¶50 Newspapers from the early days of statehood confirm that defendants were granted jury trials for a wide variety of crimes. In his brief, Maese provided three newspaper articles close in time to statehood where individuals charged with seemingly minor offenses received jury trials.19 During oral argument, both Maese and the City
¶51 If that were the entirety of what the 1898 Code told us about the availability of the jury, we could readily conclude that Maese is correct and that a jury was available in all criminal prosecutions. But the 1898 Code contains a wrinkle.
¶52 Section 241 of the 1898 Code stated that:
All actions before a city justice arising under the city ordinances shall be tried and determined by such justice without the intervention of a jury, except in
. . . charged with desecrating the Sabbath by well-digging. He was tried by a jury and found guilty, and . . . [the judge] impose[d] a fine of one dollar! The Ordinance says the fine shall be not less than five dollars.“); Whisky on Top, PROVO DAILY ENQUIRER, Feb. 27, 1891, at 4, https://newspapers.lib.utah.edu/details?id=1436287 (reporting on “the case of . . . Frank Knight,” prosecuted for “selling liquor to minors,” and noting that the jury returned a verdict of not guilty); Jury Disagrees, BOX ELDER NEWS J., July 29, 1915, at 4, https://newspapers.lib.utah.edu/details?id=300011 (“The defendants were arrested for peddling fruit at the . . . [r]ailroad station in violation of . . . [the] City Ordinance,” which provided that punishment for the offense would be “‘a fine of not less than five nor more than one hundred dollars for each offense.’ The defendants demanded a jury trial and four citizens were secured . . . .“).
cases where imprisonment for a longer period than thirty days is made a part of the penalty, or where the maximum fine may exceed fifty dollars.
¶53 In other words, in the year after statehood, the drafters of Utah‘s first Criminal Code (some of whom had been delegates at the 1895 Constitutional Convention), implicitly recognized that the right to a jury trial did not attach to certain prosecutions.21 Those accused
E. The Principle Contained in Section 241, Exempting Certain Minor Offenses from the Right to a Jury Trial, Has Persisted in Utah Law From 1898 to the Present
¶54 The statutory exemption of certain minor criminal offenses from the right to a jury trial—first enacted by section 241—has continued to be part of Utah law from 1898 to today. Section 241 remained in the Criminal Code unchanged until 1915, when the Legislature made a non-substantive amendment to the statute. 1915 Utah Laws 154 (“All actions before a city or town justice arising under the city or town ordinance shall be tried and determined by such justice without the intervention of [a] jury, except in cases where imprisonment for a longer period than thirty days is made a part of the penalty, or where the maximum fine may exceed $50.“). In other words, within twenty years of statehood, the Legislature revisited this provision, but did not adjust the exception to the availability of a jury. Although far from definitive, it does suggest that the Legislature did not spot a constitutional infirmity that it needed to correct.
¶55 In 1919, the Legislature enacted another small change to this statutory provision. 1919 Utah Laws 63. And by 1933, the Legislature had revisited the provision a third time, again with little substantive alteration.
which an accused is entitled in criminal prosecutions, including the right to “a speedy public trial by an impartial jury,” before then providing for “the right to appeal in all cases.”
¶57 This change aligned the statute with the then-recent modifications to the Utah Code of Criminal Procedure and the newly created Utah Rules of Criminal Procedure that excluded infractions from the right to a jury trial.22 Compare
¶58 Accordingly, we can see that the exception to the otherwise broad right to a jury criminal trial enacted in 1898 has remained in the Utah Code for more than 120 years. And, more importantly, the legislative changes closest in time to the enactment of our constitution did not question the propriety of that exception.
¶59 When interpreting our constitution, we have, at times, found it useful to examine sister state law. While the reasoning of other jurisdictions does not determine the conclusions we draw about our own state constitution, we take comfort in knowing that most jurisdictions generally understand that some class of minor criminal offenses does not warrant a jury trial under their respective constitutions.
¶60 Some states interpret their constitutions either in lockstep with the federal constitution or by employing an analysis that resembles the federal approach. The Colorado Supreme Court, for example, concluded that the language in its constitution, providing the right to a jury trial in “criminal prosecutions” and in “criminal cases,” did not extend the right to a jury trial to petty offenses. Austin v. City & Cty. of Denver, 462 P.2d 600, 602, 604 (Colo. 1969) (en banc). The court borrowed reasoning from the United States Supreme Court‘s jurisprudence to determine whether an offense is serious, and warrants a jury trial, or is petty, and does not. Id. at 603–04 (discussing Duncan v. Louisiana, 391 U.S. 145 (1968)).
¶61 Hawaii similarly refers to the federal standard in analyzing the right to a jury trial under its constitution. State v. Ford, 929 P.2d 78, 81–82 (Haw. 1996). Hawaii‘s constitution provides the right to trial by jury “[i]n all criminal prosecutions.”
¶62 Some jurisdictions conclude their constitutions guarantee juries when there is a possibility of incarceration. For example, the Idaho Supreme Court interpreted the language of its state constitution, “[t]he right of trial by jury shall remain inviolate,”
¶63 The West Virginia Supreme Court similarly interpreted the relevant provision of its constitution, “[t]rials of crimes, and of misdemeanors, unless herein otherwise provided, shall be by a jury of twelve men,”
¶64 And some jurisdictions conclude that there is no constitutional right to a jury trial for regulatory offenses and focus on distinguishing between offenses that are regulatory and those that are criminal. For example, the Oregon Constitution provides, “In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury . . . .”
¶65 The Alaska Supreme Court interpreted the language “all criminal prosecutions,”
¶66 Other states look to see whether the offense was the type of offense triable by a jury at the time of the adoption of their constitutions. For example, the Connecticut Supreme Court has interpreted the state‘s constitutional language, “[t]he right of trial by jury shall remain inviolate,”
¶67 While many of the analyses that our companion courts have undertaken do not focus on the original public understanding of their constitutions at the time of their adoptions, those decisions paint a consistent picture that most jurisdictions recognize that the constitutional right to a jury trial does not include some class of minor offenses.
G. Focusing on the Potential for Imprisonment Best Comports with What We Understand to be the Original Public Meaning of the Utah Constitution
¶68 This history teaches us a couple of lessons. First, the delegates at the Utah Constitution spoke to the importance of juries in our legal system. Second, since statehood, Utah statutes have always exempted some minor class of crimes from the right to a jury trial. Third, the exemption of certain minor offenses is consistent with the contemporaneous decisions of the United States Supreme Court and the supreme courts of many sister states.
¶69 In light of this history, we can confidently conclude that at the time of statehood, the people of Utah would have understood that the trials for violations of certain minor offenses were not “criminal prosecutions” for which the Utah Constitution guaranteed a jury.
¶70 The trick, however, is trying to wring from the historical record exactly what kind of criminal trials were not included in
¶72 As noted above, we could draw the line at municipal offenses. And as set forth below, during Utah‘s territorial and early statehood eras, municipal ordinances appeared to focus their attention exclusively on regulatory offenses: offenses that were aimed at protecting the public health and safety and did not involve moral delinquency.25 The historical record demonstrates this
¶73 For example, some municipal ordinances focused on sanitation regulations. See, e.g., Salt Lake County, Utah, Ordinance Establishing Sanitary Rules for Salt Lake County (July 1, 1896). Municipal ordinances also addressed health regulations. See, e.g., Salt Lake County, Utah, Ordinance Regulating Quarant[in]ing Proceedings in Con[n]ection with Contagious and Infectious Disease (Dec. 4, 1900). Others regulated safety concerns. See, e.g., Salt Lake County, Utah, Ordinance Regulating the Keeping and Storing of Explosives Within the Limits of Salt Lake County, and Outside the Limits of Incorporated Cities and Towns Therein (Apr. 25, 1904). Utah municipalities also focused their attention on alcohol
public-welfare offense, BLACK‘S LAW DICTIONARY, (11th ed. 2019) (emphasis omitted). Black‘s Law Dictionary defines a regulatory offense as “[a] statutory crime, as opposed to a common-law crime” and references a public welfare offense. Offense: regulatory offense, BLACK‘S LAW DICTIONARY (11th ed. 2019).
¶74 Municipal ordinances also regulated traffic and cars. See, e.g., Salt Lake County, Utah, Ordinance Prohibiting the Running of Automobiles, Motor Cars and Motor Cycles Over and Upon Public Highways in Salt Lake County, State of Utah, at a Speed in Excess of Fifteen Miles Per Hour (Aug. 7, 1907). And municipal ordinances regulated the licensing of different trades. See, e.g., Salt Lake County, Utah, Ordinance Licensing and Regulating the Operation and Maintenance of Pool and Billiard Rooms in Salt Lake County (May 23, 1910).27
¶75 In other words, in Utah, municipal ordinances were historically focused on regulatory and public welfare offenses,28
¶76 Thus, while municipal ordinances appeared to focus on public welfare regulations at the time of statehood, they regulate much more broadly today and may sanction the same conduct as the state code. If we were to draw a line that juries are available for violations of state statutes, but not municipal ordinances, the right to a jury for the exact same conduct could be tried to either a jury or a judge depending on whether that defendant is charged with violating the state statute or the parallel municipal ordinance.
¶77 The only clue in the historical record that suggests that this is the principle the Utah Constitution was intended to enshrine is the evidence that municipalities had the authority to regulate the same conduct as the state statutes, so long as not in conflict. See
jurisdictions that do not treat municipal ordinance violations as crimes).
¶79 A rule that focuses exclusively on the nature of an offense as regulatory or not is a poor fit in the context of our constitutional and statutory history. Such a rule would not account for the fact that section 241 of the 1898 Code did not simply exclude municipal ordinances—and therefore indirectly regulatory offenses—from the jury trial. And drawing a bright line between regulatory and non-regulatory offenses ignores that the earliest state codes also regulated public welfare offenses in a way that overlapped with the municipal ordinances. Compare
¶80 Because the prosecution of a violation of a regulatory offense listed in the state code would have necessitated a jury trial, whether an offense is regulatory does not appear to be the constitutional principle enshrined in article I, section 12. And we anticipate that focusing on whether or not an offense is regulatory for purposes of the right to a jury trial would lead to uncertainty in the law while courts slowly sorted out which crimes should or should not be deemed regulatory. Therefore, using either ordinances or regulatory offenses is an awkward fit at best.
¶81 A third alternative would focus on the potential penalty. As explored above, section 241 of the 1898 Code denied a jury trial in
¶82 Although we are relying on indirect evidence that the potential for incarceration of longer than a month is what the people of Utah understood to guarantee the right to a jury trial, we can take some comfort in the fact that the cases exempting petty crimes from the jury trial right recognize that the practice of exempting some minor crimes from the right to trial by jury existed at common law. See, e.g., Callan v. Wilson, 127 U.S. 540, 550–54, 557 (1888); see also supra ¶¶ 59–67; see generally Felix Frankfurter & Thomas G. Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 HARV. L. REV. 917, 980 (1926) (“Both in England and in the colonies a clear and unbroken practice . . . emerges for two centuries preceding the Constitution. Many offenses were customarily tried solely by magistrates.“).
¶83 And that, coupled with the line drawing in the 1898 Code allow us to conclude that the people of Utah at the time of statehood would have understood that if a defendant in a criminal prosecution faced less than a month‘s incarceration, she was not entitled to a trial by jury.30 Moreover, focusing the inquiry on the potential punishment the offense carries creates a functional test that honors the constitutional language and our understanding of our history.31
constitutional right to a jury trial. Infra ¶ 94. And he opines that this does not tell us “anything useful” about the public understanding of the Utah Constitution. Id. ¶ 91. We disagree. Although not conclusive about the meaning of our constitution, the statute is near contemporaneous evidence of what cases the people of Utah thought would be tried to a jury. A number of the legislators who voted on the statute were the same men who crafted the constitution.
We acknowledge that it is fair to question, as Justice Lee does, whether the first Utah Legislature might have enacted a jury trial right broader than that the Utah Constitution guarantees. But there is a persuasive inference that the Utah Legislature was acting in conformance with the public understanding of the scope of the right contained in the document they had drafted just months before. This is an inference that is not contradicted by anything in the record.
While we recognize that additional evidence might come to light that would cause us to revisit this conclusion, if this record is insufficient to permit us to interpret our constitution using an originalist approach, it is difficult to imagine what, given what is available to us from the time of statehood, would ever allow us to opine. Indeed, if the evidence this opinion describes is insufficient, originalist inquiry risks becoming a fruitless exercise where a combination of the presumption of constitutionality and the imprecisions in the historical record persistently frustrate our ability to interpret the Utah Constitution. And originalism could become a type of one-way ratchet that uses a murky historical record to “de-constitutionalize” previously recognized rights but imposes a near-impossible bar on those trying to give meaning to state constitutional guarantees.
CONCLUSION
¶86 The Utah Constitution‘s language, the debate at the Constitutional Convention, the first state code, historical evidence, and evidence from other jurisdictions all indicate that at the time of statehood, the public would have understood that some class of minor offenses did not trigger the right to a jury trial under article I, section 12. We conclude that the Utah Constitution guarantees the right to a jury trial for crimes that are punishable by more than thirty days of imprisonment and/or carry the possibility of a substantial
this context, that means that a party will often need to do more than argue that because the 1898 Code contained a certain provision or term, related provisions of the Utah Constitution must have an identical meaning. Counsel would do well to explain how those statutory provisions can help us understand the public meaning of specific constitutional language.
ASSOCIATE CHIEF JUSTICE LEE, concurring in part and concurring in the judgment:
¶87 The majority opinion is a model of originalist analysis on a range of important questions. In rejecting Santiago Maese‘s assertion of a state constitutional right to a jury trial on a traffic infraction, the court presents persuasive grounds for crediting the “original public meaning” of the Utah Constitution as the basis for our decision. Supra ¶ 19. And it proceeds to outline a careful, sophisticated methodology for assessing such meaning—an approach that appropriately frames the relationship between original intent and original meaning, supra ¶ 19 n.6, helpfully identifies the “public” whose meaning we seek, supra ¶ 21 n.7, and carefully sifts through relevant historical material to show that the generation of the framing of the Utah Constitution would not have viewed a mere charge on an infraction (which carries no potential term of incarceration) to give rise to a right to a jury trial, supra ¶¶ 34–44.
¶88 I concur wholeheartedly in the above-noted aspects of the majority opinion, and commend Justice Pearce for the laboring oar he has taken in cementing these refinements in our jurisprudence. I write separately, however, because I disagree with the specific line established by the court in reaching its holding. I see no basis for the decision to establish conclusively that the “potential for incarceration of longer than a month is what the people of Utah understood to guarantee the right to a jury trial.” Supra ¶ 82. I would instead hold only that Maese has failed to carry his burden of establishing a constitutional right to a jury trial for an offense (here, an infraction) for which there is no risk of incarceration.
¶89 This is a conclusion amply supported by the extensive historical material presented in the majority opinion—material that shows quite clearly that the original meaning of the jury guarantee in the Utah Constitution did not establish a jury trial for all offenses. Supra ¶¶ 34–53. And Maese has not overcome the presumption of constitutionality to establish that a traffic infraction would have been entitled to a jury trial. See supra ¶¶ 34–53.34 I see no reason to tread
¶90 The majority‘s basis for the one-month standard is a provision of the 1898 Utah Code—Utah Revised Statutes section 241—which provided for a bench trial for offenses triggering a term of incarceration of less than thirty days. See supra ¶¶ 70, 82–84. I agree that this provision has some salience in informing the public understanding of the legal right to a jury trial at the time of the ratification of the Utah Constitution. In light of section 241 and other cited statutory provisions, I can see a basis for the conclusion that “the people of Utah at the time of statehood would have understood that if a defendant in a criminal prosecution faced less than a month‘s incarceration, she was not entitled to a trial by jury.” Supra ¶ 83. That is fine as far as it goes. But the majority‘s public understanding is not tied to a constitutional right to a jury trial. It is tied only to a statutory provision. And the majority is making the leap that the public would have viewed the scope of the statutory right to a jury trial to be the same as the underlying constitutional right. That may not follow.
¶91 The 1898 Legislature could have been establishing a statutory jury trial right that exceeded the constitutional floor. If so, the majority may be right that the public would have viewed the right to a jury trial to be triggered by a charged offense with a “potential for incarceration of longer than a month.” Supra ¶ 82. But that would not tell us anything useful about the public understanding of the Utah Constitution. It would just tell us about the public understanding of the state code.
common law by a jury . . . .“); id. at 552 (recognizing that many state courts had “adjudged cases, arising under constitutions which declare, generally, that the right of trial by jury shall remain inviolate,” and had concluded that “there are certain minor or petty offenses that may be proceeded against summarily, and without a jury“); Felix Frankfurter & Thomas G. Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 HARV. L. REV. 917, 928 (1926) (noting there was a “striking . . . volume of offenses” prosecuted without a jury at the time of the founding).
¶93 The majority acknowledges these problems. It openly concedes that “even the first Legislature could have enacted an unconstitutional law or decided to provide statutory protections broader than those they placed in the Constitution.” Supra ¶ 46. Despite these broad concessions, the majority pivots quickly to the contradictory assertion that the enactments of the first Legislature nonetheless “help us understand the contemporaneous public meaning of certain constitutional terms and concepts.” Supra ¶ 46. The logic of this pivot is nowhere explained. And I cannot accept it. “[K]nowing what cases the 1896 Utah Legislature thought would be tried to a jury” does not tell us “what the people of Utah would have understood the constitution to mean when it refers to the ‘criminal prosecutions’ for which a jury is guaranteed.‘” Supra ¶ 46 (emphasis added). The terms of the 1898 Code do not tell us what the Legislature thought the Utah Constitution required; they tell us only what the Utah Legislature decided to require as an exercise of its legislative authority. And since the Legislature could have been aiming above the constitutional floor, the terms of the statute are not helpful as “indirect evidence” of the public understanding of the constitutional right to a jury trial. Supra ¶ 82.
¶94 The majority cements in place a one-month standard on the ground that this is a “functional test” that is more workable than other possible standards rejected by the court (as to whether an offense is a “municipal” or “regulatory” offense, for example). Supra ¶¶ 77, 79. I agree with the court‘s rejection of these alternative standards. But I see no logical reason to establish a one-month incarceration standard as the basis for resolving this case, just as I see no adequate basis in the originalist record for the conclusion that the public understanding of the constitutional right to a jury trial would
¶95 I would simply hold that Maese has failed to carry his burden of establishing a right to a jury trial for a traffic infraction, an offense that carries no risk of incarceration.36 And I would reserve for another day—a case in which this precise question is presented—a decision on whether an offense carrying a short term of incarceration may trigger such a right.
¶96 The majority objects to my approach on the ground that it renders the originalist inquiry a “fruitless exercise where a combination of the presumption of constitutionality and the imprecisions in the historical record persistently frustrate our ability to interpret the Utah Constitution.” Supra ¶ 83 n.31. This is problematic, in the majority‘s view, because it allows originalism to use a “murky historical record” as a “one-way ratchet” that refuses to establish a constitutional right. Id. I am puzzled by this response. The cited effect of the presumption of constitutionality is not a bug in my application of this legal tool; it is the standard feature of such a presumption. If a party seeking to challenge the constitutionality of a law enacted by the representatives of the people fails to provide a sufficient basis for the establishment of a clear constitutional standard, then the presumption of constitutionality kicks in. The whole point of that presumption is to preserve the law as enacted by the people in the face of only a “murky” basis for setting it aside.37
¶98 My proposed application of the presumption of constitutionality does not render originalism a “one-way ratchet” in
been reaffirmed in contemporary jurisprudence, see United States v. Morrison, 529 U.S. 598, 607 (2000) (stating that the refusal to invalidate a democratically enacted law except upon a “plain showing” of unconstitutionality accords “[d]ue respect for the decisions of a coordinate branch of Government“); City of Boerne v. Flores, 521 U.S. 507, 535 (1997) (noting that the presumption of constitutionality, dating “from the early days of the Republic,” requires courts to respect the decisions of the people‘s representatives in Congress in acting “within its sphere of power and responsibilities,” particularly given that Congress itself “has not just the right but the duty to make its own informed judgment on the meaning and force of the Constitution“); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 916 (1995) (Thomas, J., dissenting) (asserting that we should decline to “invalidate the decisions of a State or its people” in the “absence of evidence” of the precise meaning of a provision of the Constitution).
¶99 The majority complains that if the record in this case “is insufficient to permit us to interpret our constitution using an originalist approach, it is difficult to imagine what . . . would ever allow us to opine.” Supra ¶ 83 n.31. That makes little sense to me. Again, the historical record here is strikingly scant. The majority‘s caveats concede the problem. And the problem is highlighted by the acknowledgement that the line drawn by the 1898 Code could be either above or below the constitutional floor. See supra ¶ 46. If in fact the 1898 Code is no Rosetta Stone, and a party “need[s] to do more” than cite its provisions, then Maese has failed to carry his burden of proof on the precise constitutional line to be drawn in our resolution of this case. Supra ¶ 84 n.32. That is the ground on which I would decide this case.
¶100 We can resolve the constitutional uncertainty conceded by the majority by falling back on the longstanding notion of a presumption of constitutionality. See supra ¶ 96 n.37. Doing so is not a “frustrat[ion] [of] our ability to interpret the Utah Constitution.” Supra ¶ 83 n.31. It is an affirmation of a longstanding tenet of originalism—the presumption of constitutionality, which is deeply embedded in our law. See James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARV. L. REV. 129, 140–146 (1893) (establishing the historical basis for the rule requiring the judiciary to defer to the Legislature and uphold legislation unless it clearly contravenes the constitution); PHILIP HAMBURGER, LAW & JUDICIAL DUTY 309–16 (2008) (suggesting that at the time of the Framing, judges were to follow a law unless it created a “manifest contradiction” with a higher law). Maese bears the burden of overcoming this presumption. And his failure to do so is a basis for a ruling against him.
Notes
The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial; and no person charged with the exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted.
Maese also argues that a court has no subject matter jurisdiction over an offense not listed in the Utah Code, and that therefore the court was required to dismiss the action. He contends that
[T]he constitutional designation of the number of jurors to be used in courts of original jurisdiction and in (continued . . .)
courts of inferior jurisdiction [provided in section 10] presupposes the existence of the basic right itself. It is not plausible that the framers would mandate the number of jurors to be used in a jury, and the number of jurors required to return a verdict, without intending to secure the basic right itself.
626 P.2d at 420. In other words, section 12 is the provision that secures that basic right of a jury in criminal prosecutions. This is the crucial language to assess whether the Utah Constitution guarantees the right to a jury trial for the traffic violations for which Maese was convicted. Accordingly, we focus on the meaning of section 12 of article I of the Utah Constitution.
While we have at times used language of “intent” in discussing our constitutional interpretation analysis, our focus is on the objective original public meaning of the text, not the intent of those who wrote it. See Neese v. Utah Bd. of Pardons & Parole, 2017 UT 89, ¶ 95, 416 P.3d 663 (“[O]riginalist inquiry must focus on ascertaining the ‘original public meaning’ of the constitutional text.“); id. ¶¶ 95- (continued . . .) 100 (discussing the goals and methods of originalism steeped in original public meaning). Evidence of framers’ intent can inform our understanding of the text‘s meaning, but it is only a means to this end, not an end in itself. The original public meaning focus of our constitutional inquiry is consistent with the “predominant originalist theory,” which requires seekers of the original meaning to “interpret the Constitution according to how the words of the document would have been understood by a competent and reasonable speaker of the language at the time of the document‘s enactment.” John O. McGinnis & Michael B. Rappaport, Original Methods Originalism: A New Theory of Interpretation and the Case Against Construction, 103 NW. U. L. REV. 751, 761 (2009). “[T]he new originalism is focused less on the concrete intentions of individual drafters of constitutional text than on the public meaning of the text that was adopted.” Keith E. Whittington, The New Originalism, 2 GEO. J.L. & PUB. POL‘Y 599, 609 (2004).The record currently before us does not permit us to conclude that the Utah Constitution uses the phrase “criminal prosecutions” as a term of art. “Criminal prosecution” does not appear to have any fixed meaning; nearly every state that has addressed the question of the scope of the jury trial has struggled with the meaning of “criminal prosecution,” and those jurisdictions have arrived at a variety of conclusions. See infra ¶¶ 40-44. And, as discussed below, infra ¶ 31, there is no evidence from the Utah Constitutional Convention that the framers intended to use the phrase “criminal prosecution” as a term of art.
Suppose, . . . a city coun[cil] ordains that to deposit banana peels on the sidewalk shall be an offense punishable by a fine of five dollars, or, upon second conviction, by two days’ imprisonment in the city jail, must we declare that the constitutional right to a trial by jury attaches simply because the specific act was not noticed, and hence not punished summarily, before the constitution?
McInerney, 29 P. at 520. “[T]hough a particular offense may have been unknown to the common or statutory law before the adoption of our constitution, yet, if it clearly belongs to a class of offenses that were theretofore not triable by jury, the constitutional guaranties relating to jury trial do not apply.” Id.
The proper disposal of banana peels may have been motivated by something more than academic interest. An 1888 article from South Dakota‘s The Canton Advocate recounted that:
Quite a comical incident in [town square] amused lookers-on the other day. A well-known gentleman, quite prominent in the temperance work, was proceeding hurriedly along when he stepped upon a banana peel, which “like death, levels all ranks,” and out from a parcel which he was carrying shot a bottle of brandy. . . .
He Lost His Secret, THE CANTON ADVOCATE, Jan. 5, 1888, at 3, https://www.newspapers.com/image/174503066/.
Utahns were also apparently concerned with banana peels left on sidewalks. The Ogden Daily Junction opined that one should never “laugh at the misfortune of others, save in the case of a man who is trying to stand on a banana peel on the sidewalk.” Hardly Ever, OGDEN DAILY JUNCTION, June 8, 1879, at 3, https://newspapers.lib.utah.edu/details?id=23766239.
391 U.S. 145, 160–61 (1968).Of course the boundaries of the petty offense category have always been ill-defined, if not ambulatory. In the absence of an explicit constitutional provision, the definitional task necessarily falls on the courts, which must either pass upon the validity of legislative attempts to identify those petty offenses which are exempt from jury trial or, where the legislature has not addressed itself to the problem, themselves face the question in the first instance. In either case it is necessary to draw a line in the spectrum of crime, separating petty from serious infractions. This process, although essential, cannot be wholly satisfactory, for it requires attaching different consequences to events which, when they lie near the line, actually differ very little.