                                     IN THE
               ARIZONA COURT OF APPEALS
                                   DIVISION ONE


                  SHAWN P. MACK, Petitioner/Appellant,

                                        v.

    THE HONORABLE HERCULES DELLAS, Judge of the PHOENIX
          MUNICIPAL COURT, Respondent Judge/Appellee,

 PHOENIX CITY PROSECUTORS OFFICE, Real Party in Interest/Appellee.

                            No. 1 CA-CV 13-0492
                             FILED 05-22-2014


           Appeal from the Superior Court in Maricopa County
                        No. LC2012-000325-001
                The Honorable Daniel G. Martin, Judge

             JURISDICTION ACCEPTED; RELIEF DENIED


                                    COUNSEL

Laurie A. Herman, Scottsdale
Counsel for Petitioner/Appellant

Phoenix City Prosecutors Office, Phoenix
By Kent C. Kearney, Gary Verburg
Counsel for Real Party in Interest/Appellee



                                    OPINION

Presiding Judge Lawrence F. Winthrop delivered the opinion of the Court,
in which Judge Maurice Portley and Judge Andrew W. Gould joined.
                       MACK v. DELLAS/PHOENIX
                          Opinion of the Court

W I N T H R O P, Presiding Judge:

¶1           Shawn P. Mack (“Defendant”) challenges the decision of the
Maricopa County Superior Court denying him a jury trial for the charged
misdemeanor offense of obstructing a highway or other public
thoroughfare. For the following reasons, we accept jurisdiction and deny
relief.

                 FACTS AND PROCEDURAL HISTORY

¶2            In October 2011, during the “Occupy Phoenix” protests,
Phoenix police allegedly observed Defendant standing in a crosswalk
against the pedestrian traffic light. Defendant was arrested and charged
with obstructing a highway or other public thoroughfare pursuant to
Arizona Revised Statutes (“A.R.S.”) section 13-2906(A) (West 2014). 1
Defendant requested a trial by jury, but the Phoenix Municipal Court
denied his request.

¶3            Defendant petitioned the Maricopa County Superior Court
for special action review. The superior court accepted jurisdiction and
denied relief. Defendant filed a timely notice of appeal, which in the
exercise of our discretion we treat as a petition for special action. See, e.g.,
State v. Bayardi, 230 Ariz. 195, 197, ¶ 7, 281 P.3d 1063, 1065 (App. 2012)
(exercising special action jurisdiction over appeal after finding appellate
jurisdiction lacking). We have appellate jurisdiction pursuant to the
Arizona Constitution, Article 6, Section 9, A.R.S. § 12-120.21(4), and
Arizona Rule of Procedure for Special Actions 8(a).

                                 ANALYSIS

¶4            Defendant argues the misdemeanor offense of obstructing a
highway or other public thoroughfare pursuant to A.R.S. § 13-2906(A) is a
crime for which a defendant has a constitutional right to a trial by jury.
Whether a defendant is constitutionally entitled to a trial by jury is a
question of law we review de novo. Stoudamire v. Simon, 213 Ariz. 296, 297,
¶ 3, 141 P.3d 776, 777 (App. 2006) (citation omitted).

¶5             Under the Arizona Constitution, Article 2, Section 23, “The
right of trial by jury shall remain inviolate.” A criminal defendant has a

1      We cite the most recent version of the constitutional provisions,
statutes, and rules, because no revisions relevant to this appeal have since
occurred.



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                       MACK v. DELLAS/PHOENIX
                          Opinion of the Court

constitutional right to a trial by jury if “a statutory offense has a common
law antecedent that guaranteed a right to trial by jury at the time of
Arizona statehood.” Derendal v. Griffith, 209 Ariz. 416, 425, ¶ 36, 104 P.3d
147, 156 (2005) (citing Ariz. Const. art. 2, § 23). To establish a common law
antecedent, the common law offense and modern statutory offense must
share “substantially similar elements.” Id. 2 However, the elements need
not be identical. Crowell v. Jejna, 215 Ariz. 534, 540, ¶ 22, 161 P.3d 577, 583
(App. 2007).

¶6              Defendant contends the common law public nuisance
offense of highway obstruction shares substantially similar elements with
A.R.S. § 13-2906(A) and, as a public nuisance, highway obstruction was an
indictable offense at common law for which a defendant had a right to a
trial by jury. 3 See, e.g., R. v. Johnson, (1860) 121 Eng. Rep. 230 (K.B.) 231; 2
El. & El. 613, 615 (“The case [“making obstructions in a public and
common highway”] went to the jury upon the merits; and they, contrary
to the opinion of the Lord Chief Justice, and contrary, perhaps, to the
opinion which this Court would have entertained, found for the
defendant.”). As a result, Defendant argues the public nuisance offense of
highway obstruction is the common law antecedent to A.R.S. § 13-
2906(A). 4


2      Defendant concedes the second, alternative prong of the Derendal
test, focusing on the seriousness of the offense, is inapplicable to
obstructing a highway or other public thoroughfare. See Derendal, 209
Ariz. at 425, ¶ 37, 104 P.3d at 156 (under the second prong “the court must
analyze the seriousness of the offense under Article 2, Section 24.”).

3      The terms “common nuisance” and “public nuisance” are used
interchangeably in this opinion.

4      Defendant also relies on territorial statutes for the proposition that
the charged offense has a common law antecedent. The State similarly
argues there is no common law antecedent in this case because the State
can trace the “lineage” of A.R.S. § 13-2906(A) to a 1974 Kentucky statute.
These arguments are misplaced. “The only historical factor of current
relevance is whether an analog to the offense existed at common law that
afforded the defendant a right to trial.” Ottaway v. Smith, 210 Ariz. 490,
494 n.6, ¶ 14, 113 P.3d 1247, 1251 n.6 (App. 2005); cf. Abuhl v. Howell, 212
Ariz. 513, 514, ¶ 11, 135 P.3d 68, 69 (App. 2006) (“There is a significant
distinction between a common law offense and a statutory offense, both



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                      MACK v. DELLAS/PHOENIX
                         Opinion of the Court

¶7            As a threshold issue, the State argues a public nuisance
cannot serve as the basis for comparison between common law and
statutory offenses, because the common law definition of that term
broadly encompassed many offenses that did not include highway
obstruction. See, e.g., 1 William Hawkins, A Treatise of the Pleas of the
Crown 692 (1716) (John Curwood ed., Sweet et al. 8th ed. 1824) (defining
“common nuisance” as “an offence against the public, either by doing a
thing which tends to the annoyance of all the king’s subjects, or by
neglecting to do a thing which the common good requires.”). We disagree
because the cases cited by Defendant and other historical sources
sufficiently establish highway obstruction as a particular form of public
nuisance. See also J.R. Spencer, Public Nuisance−A Critical Examination, 48
C.L.J. 55, 65 (1989) (tracing the confusion surrounding the definition of
“common nuisance” to Hawkins’ description, and explaining that
description as “a residual category” containing “all the things that
[Hawkins] could fit in nowhere else,” rather than a definitive statement of
the elements of “public nuisance.”).

¶8            Under A.R.S. § 13-2906(A), “A person commits obstructing a
highway or other public thoroughfare if, having no legal privilege to do
so, such person, alone or with other persons, recklessly interferes with the
passage of any highway or public thoroughfare by creating an
unreasonable inconvenience or hazard.” At common law, the common
nuisance of highway obstruction involved interfering with the public’s
right to passage by “rendering the [highway] inconvenient or dangerous
to pass: either positively, by actual obstructions; or negatively, by want of
reparations.”    4 William Blackstone, Commentaries *167.             By the
nineteenth century, “any use of the street that was both unreasonable and
obstructive constituted illegitimate passage and infringed the public
right.” Rachel Vorspan, Freedom of Assembly and the Right to Passage in
Modern English Legal History, 34 San Diego L. Rev. 921, 930-32 (1997)
(analyzing common law highway obstruction cases).

¶9           Although the two offenses are superficially similar, we
conclude the common law offense and modern statutory offense do not
share substantially similar elements. First, the two offenses do not share a
common mens rea requirement. The statutory offense prohibits “recklessly


existing at the time of statehood. Statutory rights under the territorial
penal code do not qualify as common law antecedents that would require
a jury trial under Derendal.”).




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                       MACK v. DELLAS/PHOENIX
                          Opinion of the Court

interfere[ing] with the passage of any highway.” A.R.S. § 13-2906(A)
(emphasis added); see also A.R.S. § 13-105(10)(c) (defining “[r]ecklessly”).
By contrast, common law public nuisance, including highway obstruction,
lacked a mens rea requirement prior to Arizona statehood. See R. v.
Rimmington, [2005] UKHL 63, [2006] 1 A.C. 459 (H.L.) [8-17] (Lord
Bingham of Cornhill) (appeal taken from Eng.) (describing the
development of a mens rea requirement in common law public nuisance
offenses from the strict liability scheme recognized in the nineteenth
century to the “knowingly” requirement in modern common law after
twentieth century codification efforts).

¶10           Second, under A.R.S. § 13-2906(A), a defendant may claim a
“legal privilege” to obstruct the highway in addition to arguing that his
actions were reasonable. Although the statute does not define “legal
privilege,” the term presumably includes the modern practice of state or
local authorities issuing permits to obstruct the highway and interfere
with the public right to passage. See, e.g., Ariz. Dep’t Trans., ADM 10-1
Special Event Policy (2010) (permit available to encroach on state highway
right-of-way           for         marathon),           available         at
http://www.azdot.gov/docs/business/special-event-policy.pdf; City of
Prescott,            Right           of            Way              Permits,
http://www.cityofprescott.net/services/building/row.php              (permit
available to perform construction in public right-of-way) (last visited May
6, 2014).

¶11           By contrast, at common law the crown could not grant
dispensation or license to obstruct the highway. See F.W. Maitland, The
Constitutional History of England 302-04 (1908) (Lawbook Exchange 2008)
(discussing the limits on the king’s dispensing power for malum in se); J.R.
Spencer, Public Nuisance−A Critical Examination, 48 C.L.J. 55, 63-64 (1989)
(discussing the efforts of English Parliament to limit the king’s dispensing
power by declaring statutory crimes malum in se as common nuisances).
Nor could local councils on their own authority legally grant permission
to private citizens to obstruct the highway. Reginald Ryves, The King’s
Highway 20-21 (1908). However, a defendant charged with the public
nuisance of highway obstruction at common law could argue the
reasonableness or necessity of the obstruction. See e.g., R. v. Cross, (1812)
170 Eng. Rep. 1362 (N.P.) 1363; 3 Camp. 224, 227 (“A stage-coach may set
down or take up passengers in the street, this being necessary for public
convenience: but it must be done in a reasonable time . . . .”); R. v. Russell,
(1805) 102 Eng. Rep. 1350 (K.B.) 1352; 6 East 427, 430 (“[T]he primary
object of the street was for the free passage of the public, and anything
which impeded that free passage, without necessity, was a nusance.”).


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                      MACK v. DELLAS/PHOENIX
                         Opinion of the Court

¶12           Therefore, although the offenses share a “reasonableness”
element, the addition of a “legal privilege” in the statutory offense
demonstrates a regulatory aspect of the offense not present in common
law public nuisance. Cf. Crowell, 215 Ariz. at 538, ¶¶ 15-17, 161 P.3d at 581
(distinguishing city ordinance that regulated nude dancing from common
law offense that flatly prohibited “exhibiting one’s private parts in
public”). As a result of the differences between these offenses, we
conclude the public nuisance offense of highway obstruction is not a
common law antecedent of Arizona’s statute prohibiting obstructing a
highway or other public thoroughfare.

                              CONCLUSION

¶13           We accept jurisdiction but deny relief, affirming the decision
of the superior court. The common law public nuisance offense of
highway obstruction is not a common law antecedent of A.R.S. § 13-
2906(A) because the two offenses do not share substantially similar
elements. Thus, a defendant charged under A.R.S. § 13-2906(A) is not
constitutionally entitled to a trial by jury.




                                 :gsh




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