Arizona Court of Appeals Division One Denies Jury Trial for Violation of Municipal Ordinance Regulating Nude Dancing.

In this case, Division One reviewed the Superior Court’s decision to grant special action jurisdiction but deny relief to Erin Crowell, an “adult service provider” (i.e. an exotic dancer). Crowell was charged with violating various ordinances regulating how and where a dancer may dance nude in an “adult service business.” The three charges were all misdemeanors punishable by no more than 6 months imprisonment. Crowell demanded a jury trial in Scottsdale City Court and that court denied her request. Crowell then filed a special action with the Superior Court.

As a procedural matter, Judge Johnsen, for a unanimous panel including Judges Orozco and Snow, first noted that where the Superior Court accepts special action jurisdiction and determines the merits of the petition, the Court of Appeals reviews whether the Superior Court abused its discretion in granting or denying the relief sought.

On the merits, Division One broadly canvassed Arizona law and secondary authorities on the jury trial right and applied the two-step analysis set forth by the Arizona Supreme Court in Derendal v. Griffith, 209 Ariz. 416 (2005). That analysis holds that a jury trial right exists when either: 1) the crime charged has a common-law antecedent that guaranteed a right to a jury trial at the time of statehood; or 2) Art. 2 Sec. 24 of the Arizona Constitution, Arizona’s analog to the Sixth Amendment, affords such a right. See Op. at Para. 7, 8. The Court concluded that in this case neither the common law nor the Constitution afforded Crowell a right to a jury trial. Division One thus affirmed.