The Advocate, Vol. 19, No. 6 (November 1997)
District Court Practice:
What is This, The Spanish Inquisition or Jury Trial Rights in Domestic Situations?

With apologies to the Monty Python group for our title, some days you just have to wonder about practicing in the District Courts. Time and time again, you see Joe D. Fendant involved in a domestic dispute. A protective order is issued prohibiting him from engaging in certain activities. Inevitably, he is arrested for a violation of the protective order pursuant to KRS 403.763. He is arraigned on the charge of Contempt - Violation of an EPO during the court's misdemeanor docket. A bond is set after the Judge consults the pretrial report which in all likelihood incorporates the Chief Justice's recommendations for bond evaluation in domestic situations. Because of the special circumstances of a domestic situation, the bond is set at a point your client is unable to meet. He sits in jail awaiting the trial call of the case.

Finally the day arrives when you have an opportunity to present his case. Counsel has filed the appropriate jury request. Everything is ready to go and at the call of the case, the County Attorney informs the Court that the Commonwealth is seeking to amend the charge to a charge of civil contempt in violation of KRS 432.280. Joe D. Fendant is momentarily elated once he understands that instead of up to a year in jail and a $500 fine, he is now looking at a maximum of 6 months in jail. Counsel sadly shakes her head while looking at the burgeoning file containing all of the notes for that perfect voir dire and opening statement knowing full well that she will never have a chance to present the case to a jury.

"WHAT? No jury trial? But this is America" cries your client as the bench trial commences. You try to explain that since this is a charge of civil contempt and since the maximum penalty is six months in jail, he does not enjoy a right to a jury trial. Or does he?

Adverse Existing Law

The Commonwealth invariably relies on existing law where the Kentucky Supreme Court held that a Court may sentence a defendant to serve up to six months and impose a fine of $500 for contempt without a jury trial. Otis v. Meade, 483 S.W.2d 161 (Ky. 1972). Factual differences, federal case law and state legislative acts show that Otis is not dispositive. Some Courts might be inclined to deny the jury trial request based on the discussion of jury trial rights and the affirmation of a conviction absent a jury trial in Donta v. Commonwealth, 858 S.W.2d 719 (Ky.App. 1993). It is critical to note that in Donta, the defendant "never requested a jury trial." Donta at 723. The Court even acknowledged that "had appellant actually availed himself of his statutory right to request a jury trial, the result in this matter might have been different." Donta at 725.

Federal Jury Trial History

From the foundations of Anglo-Saxon law, a right to a jury trial has been the hallmark of law and justice. No man shall be taken or imprisoned "except by the lawful judgment of his peers and the law of the land." 17 John (Magna Carta), c. 39 (1215).

Those who emigrated to this country from England brought with them this great privilege 'as their birthright and inheritance, as a part of that admirable common law which has fenced around and interposed barriers on every side against the approaches of arbitrary power.' Thompson v. Utah, 170 U.S. 343 (1898), quoting J. Story, Commentaries on the Constitution of the United States § 1779.

The founding fathers of this country saw fit to include this protection and wrote "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury;" U.S. Const. Art III, § 2. This fundamental right was deemed important enough to be repeated in the declaration that in "all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...." U.S. Const. Amend 6. Even suits at common law where the value in controversy exceeds $20 were found to be of such significance that a jury trial right was preserved. U.S. Const. Amend 7.

Constitutional rights to a jury trial were found to apply to the several states by way of the due process clause of the 14th amendment. Duncan v. Louisiana, 391 U.S. 145 (1968). A "fair and enlightened system of justice would be impossible without" a right to jury trial. Palko v. Connecticut, 302 U.S. 319 (1937). A defendant's right to a trial by jury "is necessary to an Anglo-American regime of ordered liberty". Duncan.

The Duncan majority did however limit its holding, finding "there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provisions and should not be subject to the Fourteenth Amendment jury trial requirement here applied to the States." Id. It did not however "settle in this case, the exact location of the line between petty offenses and serious crime." Id. That line was first defined by the Court when it held that "no offense can be deemed 'petty' for purposes of the right to trial by jury where imprisonment for more than six months is authorized." Baldwin v. New York, 399 U.S. 66 (1970). The Court did not however indicate that any offense carrying a penalty of six months or less would automatically be considered a 'petty' offense.

The six month threshold of Baldwin is not a bright line rule as commonly believed. "[W]e did not hold in Baldwin that an offense carrying a maximum prison term of six months or less automatically qualifies as a 'petty' offense, and we decline to do so today...." Blanton v. City of North Las Vegas, 489 U.S. 538 (1989). The Court indicated that a crime punishable by six months or less might be deemed serious enough to invoke the jury trial right because of, among other things, the very nature of the offense itself. Baldwin.

The opinion let stand prior case law where it was deemed appropriate to provide a trial by jury for so called 'petty' offenses. See, District of Columbia v. Clawans, 300 U.S. 617 (1937); Schick v. United States, 195 U.S. 65 (1904); District of Columbia v. Colts, 282 U.S. 63 (1930). In spite of their status as petty offenses, courts have honored a jury trial request for crimes where the punishment is less than six months in situations involving conspiracy to deceive immigration officials, DUI, shoplifting and criminal mischief. See, United States v. Sanchez-Meza, 547 F.2d 461 (9th Cir. 1976); United States v. Craner, 652 F.2d 23 (9th Cir. 1981); State v. Superior Court, Az., 589 P.2d 48 (1978); Reed v. State, Fla., 470 So.2d 1382 (1985).

Baldwin does not prohibit jury trials for offenses where the sentence is six months or less but rather requires a right to jury trial regardless of the potential penalty if the situation is considered serious. A potential six month sentence for contempt coupled with all of the other potential penalties and restrictions is a serious and not a 'petty' situation.

Equal Protection Requires A Jury Trial

Admittedly, the Sixth Amendment only applies to criminal actions. By couching the charge against the defendant as civil contempt, the Commonwealth attempts to remove him from the protection afforded a criminal defendant. The equal protection clause of the 14th Amendment prevents this type of treatment. The defendant was arrested, was required to post a bond to gain his release from jail and was arraigned on the criminal docket of the District Court. The case was assigned a number which designates a misdemeanor crime within the court docketing system. A County Attorney whose function is the prosecution of criminal matters seeks to have your client incarcerated for a period of up to six months. That determination will be made during the Court's criminal docket.

"What's in a name? That which we call a rose by any other word would smell as sweet;" W. Shakespeare, Romeo and Juliet, Act II, s. ii, The Riverside Shakespeare p. 1068 (1974). Everything about your case except its captioning by the Commonwealth indicates the defendant is facing a criminal charge. He is however being denied the most basic protection afforded a citizen facing even the most limited of jail sentences: a jury trial. If a person charged with a DUI 1st offense who is facing a maximum of 30 days in jail is entitled to a trial by jury, equal protection of the law mandates a jury trial for a citizen facing up to six months in jail for contempt. See, U.S. Const. Amend 14.

The Commonwealth made the decision to treat Joe D. Fendant as a criminal defendant. It is only because they choose to look upon this matter as a criminal offense that the laws allowed the police officer to arrest him. He was detained as a criminal defendant. He was arraigned as a criminal defendant. He was entitled to the appointment of a public defender because he was a needy criminal defendant. He was forced to enter a plea to a criminal charge and on his plea of not guilty was allowed to present his case on the criminal docket of the District Court. After all of that, the Commonwealth elects to suddenly decide it was incorrect, in effect saying: This is a civil matter, not a criminal matter so we need not bother with wasteful things like a jury trial. Such tactics from the Commonwealth are improper.

State Jury Trial History

The seminal published Kentucky case concerning civil contempt and jury trial rights is Otis v. Meade, 483 S.W.2d 161 (Ky. 1972). It is factually different from domestic cases and relies on federal case law decided prior to the United States Supreme Court's pronouncement in Baldwin. The Otis Court refused to issue a Writ of Prohibition to prevent enforcement of a contempt order where Otis was served with a subpoena yet failed to appear. He was ordered to serve six months in jail and pay a $500 fine. The Court further found there was no factual dispute in Otis to require a jury trial.

Though decided in 1972 when Duncan was available to the Court for guidance, instead, the Court choose to rely on an older federal case which mimicked the result in Baldwin and held that federal courts cannot impose a sentence exceeding six months absent a jury trial. Even though Baldwin defined situations where a jury trial is mandatory and provided situations where even a 'petty' offense could trigger a jury trial right, the Court of Appeals, then, the supreme court of the Commonwealth, choose to summarize the federal decision when it stated "we believe the Supreme Court said, in effect, that incarceration should not exceed six months." Otis. It remains clear by reading Baldwin that the Supreme Court did not in effect, hold in that manner. The characterization of an offense as petty or serious determines the right to a jury trial, not the potential sentence faced. Lewis v. United States, ___ U.S. ___, 116 S.Ct. 2163 (1992) (Where a trial judge's self imposed limitation on sentencing could not be used to deprive a defendant of a jury trial if the act were serious in nature.)

State Legislative Acts

Joe D. Fendant was originally charged with a violation of KRS 403.763, a class A misdemeanor. The Commonwealth then seeks to charge him pursuant to what it terms 'civil contempt', a violation of KRS 432.280. That allows a Court to proceed against and punish a person who resists or disobeys a judicial order. See, Blakeman v. Schneider, Ky., 864 S.W.2d 903 (1993) (holding Courts have inherent power to enforce compliance of lawful orders through charge of contempt.)

The Legislature most certainly contemplated jury trials in these situations by the enactment of KRS 432.290 which provides that the truth of the matter may be given in evidence in all trials by jury arising from an alleged violation of KRS 432.280. As early as 1911, it was held that it was error to punish a citizen for more than 2 days and/or $30 for contempt unless a jury trial is available. Richardson v. Commonwealth, 133 S.W. 213 (Ky. 1911) (KRS 432.260, the statute limiting punishment without a jury subsequently being found a "material interference with the administration of justice" and held unconstitutional in Taylor v. Hayes, 494 S.W.2d 737 (Ky. 1973).)

The allegation is that the defendant has disobeyed a Court order. He has no opportunity to purge himself of this contemptuous conduct. In that situation, jail is deemed punitive in nature and the Court must proceed under the guise of criminal rather than civil contempt. Blakeman. Every criminal defendant is entitled to a jury trial. KRS 29A.270.

KRS 402.760(5) specifically states that although either civil or criminal contempt actions are contemplated by the statute, once "either proceeding has been initiated the other shall not be undertaken." Joe D. Fendant was arrested and charged with a criminal violation. That criminal charge was initiated by the Commonwealth yet the prosecutor will now seek to undertake the civil aspects of a contempt charge in direct contravention of the statute.

State Constitutional Issues

The Constitution of the Commonwealth of Kentucky controls and limits any attempt to restrict jury trial rights by the Legislature or the Courts.

The ancient mode of trial by jury shall be held sacred, and the right thereof remain inviolate, subject to such modifications as may be authorized by this Constitution.
Ky. Const. § 7.

Section 11 provides a right to a jury trial to all criminal defendants. Having the services of a lawyer is merely important yet the justice system insures that right. Lewis v. Lewis, 875 S.W.2d 862 (Ky. 1993). A jury trial is the sacred right of any citizen and should not be denied.

Application of the Law

In order to answer the question of whether Joe D. Fendant is entitled to a jury trial one need only apply the law as written. He does not seek to create new law but instead seeks entitlement to that right from existing law.

Constitutional rights to a jury trial apply to the states via the 14th amendment. Duncan. This is limited however if the offense is deemed 'petty.' A petty offense is not defined merely by the maximum amount of penalty. Blanton. If the nature of the offense itself is serious, the offense rises to the level requiring a jury trial. Baldwin. Otis does not control because it is factually distinguished, is out dated by the subsequent federal decisions and indicates that no factual controversy existed for a jury to hear.

In domestic matters there are grave factual differences between the parties. These are indeed serious matters. Besides the threat of a jail term, a person arrested for the violation of a protective order has his personal freedom limited in numerous ways including freedom of travel, freedom to associate and restrictions on the possession of certain property. KRS 431.064

Offenses which carry a Legislative mandate of penalties in addition to a minimum jail period of six months reach the threshold of being classified as serious in nature. Baldwin. The alleged violation of a protective order is a serious matter and requires a right to a jury trial. Defined as a serious matter, the charge remains criminal and not civil in nature. Blakeman.

Criminal contempt is where a fine or imprisonment is imposed upon the contemnor for the purpose of punishment. Black's law Dictionary 288 (5th ed. 1979) (Citing Fed.R. Crim Proc. 42).

There is no doubt that a person tried and found guilty of a failure to abide by the mandates of a protective order will receive punishment. "Defendant[s] shall have the right to a jury trial in all criminal prosecutions". KRS 29A.270(1). To reject a jury request in a domestic contempt situation is a violation of equal protection. U.S. Const. Amend 14. Both the Constitutions of the United States and The Commonwealth of Kentucky require a right to a jury trial. U.S. Const. Amend 6; Ky. Const. §§7 and 11.


The issues presented in this article are currently under consideration by the Third Division of the District Court of Kenton County, Kentucky. Should the Court grant the defendant's request, the County Attorney will in all likelihood seek certification of the law from the Supreme Court of the Commonwealth of Kentucky. Should the jury trial request be denied, and should a motion for reconsideration be overruled, the next step would be to seek Writs of Mandamus and Prohibition in the Circuit Court. If that fails, an appeal of right would focus on the Court of Appeals. The final step in state relief would be a Motion for Discretionary Review to the Supreme Court of Kentucky.

If all state remedies fail, sufficient federal issues are present to allow the entire process to be repeated starting with a Writ of Mandamus in the Federal District Court. The next time the prosecutor amends a charge of a protective order violation to civil contempt and attempts to deny Joe D. Fendant a jury trial, his lawyer just might have a few more things to say than "Sorry Joe, the law says no jury trials if all you are facing is 6 months." After all of the hearings, motions and appeals, it just might be the prosecutor asking: What is this, the Spanish Inquisition?


Assistant Public Advocate
Kenton County Office of the Public Defender
333 Scott Street, Suite 400
Covington, Kentucky 41011
Tel: (606) 292-6596
Fax: (606) 292-6590

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