Fugate v. New Mexico

PETITIONER:Fugate
RESPONDENT:New Mexico
LOCATION:Congress

DOCKET NO.: 83-6663
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: New Mexico Supreme Court

CITATION: 470 US 904 (1985)
ARGUED: Feb 19, 1985
DECIDED: Mar 26, 1985

ADVOCATES:
J. Thomas Sullivan – on behalf of Petitioner
Paul G. Bardacke – on behalf of Respondent

Facts of the case

Question

Audio Transcription for Oral Argument – February 19, 1985 in Fugate v. New Mexico

Warren E. Burger:

We’ll hear arguments next in Williamson County v. Hamilton Bank.

Mr. Sullivan, I think you may proceed when you’re ready.

J. Thomas Sullivan:

Mr. Chief Justice, may it please the Court, Petitioner this morning argues that the jurisdictional exception noted by this Court in its 1912 decision, Diaz.

v. United States, has been implicitly or by implication rejected in the subsequent decisions of the Court in Waller v. Florida and Robinson v. Neil.

The Petitioner was involved in an automobile accident in August 1981 in southern New Mexico and, as a result of that accident, two things happened.

He was charged with violation of municipal ordinances for driving while intoxicated and for careless driving, and another party of that accident was injured.

The Petitioner went to court in Carlsbad, New Mexico, pleaded no contest to the charges, was convicted upon his plea, and was sentenced.

That sentence included confinement in an alcohol rehabilitation unit for a period of 21 days, followed by a six-month period of probation, which included mandatory weekly alcohol counseling sessions.

In September of 1981, the party who had been injured in that accident died, apparently as a result of those injuries, and the State commenced a felony prosecution for vehicular homicide.

The Defendant was tried and convicted.

His first conviction was set aside by the New Mexico Court of Appeals on an unrelated ground, and on remand his newly-retained defense counsel filed a motion to dismiss, arguing that based upon double jeopardy principles, the prior convictions for lesser included offenses in the Carlsbad Municipal Court barred a subsequent State prosecution for the greater offense of vehicular homicide.

Warren E. Burger:

What did the second constitution have to establish that was not necessary to be shown in the first?

J. Thomas Sullivan:

The State was required to prove either that as a result of unlawful operation of a vehicular and resulting accident, that a person had either been injured and sustained great bodily injury, or had died as a result of that accident.

The State was required further, in order to establish the felony offense, that the accused was either operating the vehicular while driving while intoxicated or under the influence of drugs, or that he was operating the vehicular recklessly.

After his second conviction, the New Mexico Court of Appeals reversed, applying double jeopardy law, principles enunciated in decisions in this Court, to hold that the prior convictions in municipal court for lesser included offenses barred the subsequent vehicular homicide prosecution.

In so doing, the Court of Appeals made four distinct important findings.

First, it rejected the argument advanced by the State that the necessary or essential facts exception of Diaz v. United States applied, to hold that the State was justified in waiting to commence its vehicular homicide prosecution until after that injured person had died.

The Court of Appeals looked to the wording of the New Mexico statute which permits the State to commence a felony prosecution.

William H. Rehnquist:

Mr. Sullivan, it’s the judgment of the Supreme Court of New Mexico that’s being reviewed here, isn’t it?

J. Thomas Sullivan:

Yes, Your Honor.

But the threshold of the decision in the New Mexico Supreme Court critically relies on what the Court of Appeals did in this case and what it didn’t do.

William H. Rehnquist:

So you say it’s necessary for us to understand the Court of Appeals’ reasoning in order to understand the Supreme Court’s reasoning?

J. Thomas Sullivan:

I believe it’s necessary to understand the Court of Appeals’ reasoning to understand why we believe that we’re entitled to the bar of double jeopardy when the decisions of this Court were applied.

The necessary and essential facts exception of Diaz were rejected by the Court of Appeals because the State could have prosecuted because the injury, causing great bodily injury to the victim of that accident was available, was known to the State at the time the traffic offenses were prosecuted.

Second, the Court of Appeals held that the reckless driving and careless driving offenses are greater and lesser included offenses for double jeopardy purposes.

That’s been conceded by the State throughout the litigation.

Third, the Court of Appeals held essentially that DWI and reckless driving are lesser included offenses under every case of the felony offense of vehicular homicide.

They are included because the vehicular homicide statute defines the offense in terms of a prior commission of one of three modes of driving unlawfully: driving while intoxicated, driving while under the influence of drugs, or driving recklessly.

What the Court of Appeals finally rejected was the State’s argument that the jurisdictional exception which was noted by this Court in Diaz would apply as an exception to the double jeopardy bar.

As I understand it, the jurisdictional exception applies where a court does not have jurisdiction over an offense and therefore could not have adjudicated an offense.

J. Thomas Sullivan:

And the New Mexico Court of Appeals held that by implication, Waller.

v. Florida, Robinson v. Neil, had overruled the applicability of the jurisdictional exception when you’re looking at municipal court convictions for lesser included offenses of a felony prosecution which is later commenced in a court of general jurisdiction in the State.

This morning, I believe we are focusing on the Supreme Court decision, the decision of the Supreme Court of New Mexico, which held that Diaz v. United States is still applicable with respect to the jurisdictional exception.

The Court essentially held that because the Carlsbad Muncipal Court had no jurisdiction over the felony offense of vehicular homicide its judgments on the lesser included traffic offenses could not serve to bar prosecution for that felony offense in the State District Court, which is a court of general jurisdiction in New Mexico.

The State has argued in its brief to this Court an alternative theory which it suggests would have supported the judgment of the New Mexico Supreme Court, arguing a different lesser included offense analysis than was ever argued in the New Mexico courts.

And we would argue, for purposes of our petition and for purposes of decision of this Court, that the real issue to be focused upon is whether or not the jurisdictional exception of Diaz remains valid in light of Waller v. Florida and Robinson v. Neil.

In fact, in those cases, strikingly similar facts to those presented in the instant case resulted in reversals of subsequently obtained convictions–

Byron R. White:

Was Diaz even mentioned in either of those cases?

J. Thomas Sullivan:

–Your Honor, I don’t believe either opinion mentions Diaz.

Byron R. White:

And neither in Vitale.

J. Thomas Sullivan:

I don’t believe it’s mentioned in Illinois v. Vitale.

I believe the New Mexico Supreme Court decision in Manzanares expressly notes… and Manzanares is a pivotal decision because the subsequent decisions in Padilla, companion cases, were predicated on the–

Byron R. White:

I’ve forgotten.

What happened in Manzanares?

Wasn’t that filed here?

J. Thomas Sullivan:

–That’s filed and is still pending, Your Honor.

Byron R. White:

It’s still pending here?

J. Thomas Sullivan:

Still pending.

IN Manzanares, the New Mexico Supreme Court held that this Court had not directly addressed the jurisdiction exception issue in either Waller or subsequent decisions.

Byron R. White:

But, nevertheless, what?

J. Thomas Sullivan:

But, nevertheless, it applied in New Mexico; that New Mexico still recognized that there was a jurisdictional exception emanating from Diaz v. United States which would excuse the application of the double jeopardy bar where a court of limited jurisdiction could not have heard or tried or convicted on the greater offense.

Byron R. White:

Your argument is that Diaz could not possibly have survived Waller and Brown.

J. Thomas Sullivan:

Not with regard to questions that focus on a preliminary municipal court conviction, followed by prosecution in a court of general jurisdiction of the State.

I think there is an argument to be made that the jurisdictional exception is really what you have in successive State and Federal prosecutions because neither court would have jurisdiction over the other’s offenses, but not with regard to municipal State prosecutions because the jurisdictional exception in those cases hinges upon the notion of dual sovereignty which was what was expressly rejected by the court in Waller, and then applied retroactively in Robinson v. Neil.

In other words, without a concept of dual sovereignty backing the jurisdictional exception, you don’t have another theory upon which the jurisdiction of the municipal court is limited such that it cannot… all charges could not be brought in a single prosecution.

The New Mexico statute–

Byron R. White:

If at the time of the municipal action the person wasn’t dead, it would be hard to bring at all in the municipal court.

J. Thomas Sullivan:

–That would be true, Your Honor, if in fact the felony statute required proof of the death.

It does not in New Mexico require proof of the death.

It requires either proof of death or proof of a great bodily injury.

J. Thomas Sullivan:

And the Court of Appeals was very explicit in holding that the evidence available to the State at the time that the initial charges were filed would have supported a finding of great bodily injury.

There is no distinction in punishment between vehicular homicide predicated on death or great bodily injury, and therefore the State was compelled to bring all of its charges in one prosecution and at the same time.

Warren E. Burger:

Does double jeopardy involve itself in punishment aspects of the case?

J. Thomas Sullivan:

I think it is involved in the sense that we have successive or multiple punishments imposed in this case, Your Honor.

The Defendant served part of his sentence initially imposed, and after the conviction in State court, another sentence, the term of imprisonment was imposed.

I believe that’s multiple punishments for the same offense.

For our purposes and I think, as I understand the rulings of this Court, the lesser included offenses, the traffic offenses, were clearly lesser included under New Mexico law and under the decisions of this Court, and thus prior conviction on those charges would have barred both a second trial, a second conviction, or the infliction of a great punishment, assuming as we must in New Mexico, because of the statutory language, the State had no reason not to bring the felony charge at the same time it charged and prosecuted the Defendant for–

Warren E. Burger:

Aren’t we bound by the construction of the State law, by the highest court of the State here?

J. Thomas Sullivan:

–I think, Your Honor, that the Supreme Court decision in New Mexico implicitly excepted the Court of Appeals’ finding on the necessary or essential facts exception of Diaz.

It seems to me that in the decision itself, the Court recognized that the Court of Appeals was correct; that the State could have brought the felony prosecution on the theory of great bodily injury.

It didn’t have to wait until there was a death, but that–

Byron R. White:

And also that it was a lesser included offense.

J. Thomas Sullivan:

–And it was a lesser included offense.

William J. Brennan, Jr.:

Well, Mr. Sullivan, could both the traffic offense and the felony charge been tried in the upper court?

J. Thomas Sullivan:

Yes, Your Honor, I believe they could.

The State law also defines DWI and reckless driving.

The New Mexico Supreme Court has expressly held in Manzanares that the District Court in New Mexico is accorded general jurisdiction, and in fact the Joinder Rule, Rule 10 of the Rules of Criminal Procedure for the District Courts, expressly directs that in a prosecution the State should bring all the felonies and misdemeanors which arise from the same transaction or occurrence.

In this case there was really no reason why the State should not have commenced its felony prosecution at the same time that the Defendant was tried on the lesser included offenses of DWI and reckless driving.

William H. Rehnquist:

But you agree, I take it, or you don’t challenge the ruling that the municipal court or whatever it was in Eddy County, did not have jurisdiction to try the felony.

J. Thomas Sullivan:

No, it had no jurisdiction to try the felony, Your Honor.

Just as in Waller and Robinson v. Neil, as I understand those decisions, the Defendant in each case was tried on municipal ordinances, violations of municipal ordinances in the municipal court.

Those were deemed to have been the same offense, and if they were the same offense, in fact and in law, then the prior conviction on the lesser included offenses which were violations of ordinances would bar the subsequent State prosecution in a court of general jurisdiction.

I think that’s very clear from the decisions in Waller and Robinson, and particularly from the District Court’s decision on remand in Robinson, where the–

Byron R. White:

What did Waller hold?

J. Thomas Sullivan:

–Well, Waller rejected the notion, as I understand it, that because of a doctrine of dual sovereignty–

Byron R. White:

Right.

That’s all it rejected was the dual sovereignty theory.

J. Thomas Sullivan:

–That’s correct.

But the express language of the opinion, Your Honor, was that the court rejects the Florida court’s conclusion that an individual could twice be charged for the same offense and tried for the same offense, both in the municipal court or a court of limited jurisdiction and then in a court of general jurisdiction.

Those are exactly the facts presented in this case.

Byron R. White:

Well, that may be, but all they based it on, all they rejected was the dual sovereignty theory.

They didn’t address the jurisdiction.

J. Thomas Sullivan:

But, Your Honor, I think the jurisdictional exception in that case would have to flow from dual sovereignty.

There would be no other basis for considering the limitation.

William H. Rehnquist:

But there is nothing in Diaz that talks about dual sovereignty.

Diaz just talks about the different jurisdiction of courts in the same system.

J. Thomas Sullivan:

That’s correct Your Honor.

William H. Rehnquist:

So I don’t think it’s right to say that the jurisdictional exception depends on the exception of the dual sovereignty here.

The dual sovereignty theory that Florida sought to defend in Waller was an attempt to apply a body, the Federal/State thing, and Florida said just like you applied it to the Federal versus State prosecution, applied in State versus municipal prosecution.

We said no.

But that’s not the same as the jurisdiction.

J. Thomas Sullivan:

I agree, Your Honor, that there is a distinguishing feature between them.

Byron R. White:

Well, Robinson v. Neil didn’t add anything to that.

J. Thomas Sullivan:

No, but on remand when the District Court of the Eastern District of Tennessee considered the jurisdictional exception that was then argued, the court said it was untenable to accept that exception.

William H. Rehnquist:

When the New Mexico disagrees with the District Court for Tennessee, that’s what we are here about it.

J. Thomas Sullivan:

Well, Your Honor, I believe the facts in Waller and Robinson v. Neil are virtually indistinguishable from the facts in this case.

You have municipal court convictions for violations of municipal ordinances, you have subsequent prosecution for a State-based charged before the general jurisdiction–

William H. Rehnquist:

Well, if the argument in Waller had been that there’s a jurisdictional exception in double jeopardy, the case might have come out differently.

J. Thomas Sullivan:

–Well, I think, Your Honor, that’s possibly true.

Byron R. White:

Well, you can’t say, then, that Waller implicitly or necessarily overruled Diaz.

J. Thomas Sullivan:

Well, Your Honor, whether it necessarily or implicitly overruled it in all cases, it seems to me fair to say that where you’re talking about municipal prosecutions followed by State prosecutions, implied at least, Waller rejects the notion that this Defendant could have been tried in municipal court for DWI, which is defined both under State statute and under municipal ordinance, and then tried for an offense, a greater offense requiring proof of DWI in a State court of general jurisdiction.

t seems to me that that’s exactly the same type of situation that–

Byron R. White:

Do you think it appears anywhere in the record in Waller or in the arguments as what the jurisdiction of the municipal court was?

J. Thomas Sullivan:

–I think that it’s clear that–

Byron R. White:

You’d have to go and look at Florida law, wouldn’t you?

J. Thomas Sullivan:

–It was clear that there was a violation of a municipal ordinance.

Byron R. White:

That may be.

That may be, but how do we know what the jurisdiction… how did we know even then what the jurisdiction of the municipal court was?

J. Thomas Sullivan:

Well, I assume that that issue was before the court–

Byron R. White:

Well, you assume.

Byron R. White:

But show me where it was.

J. Thomas Sullivan:

–Well, Your Honor, the essential fact is that parallel facts are presented in that case and in this case.

Whether Waller expressly or implicitly overruled Diaz, there is no question that looking at the pattern of double jeopardy decisions of this Court, including Illinois v. Vitale, conviction on lesser included offenses in a court of limited jurisdiction… and I believe that’s also the situation in Brown v. Ohio… serves to bar a subsequent conviction for a greater offense in a court of general jurisdiction.

Whether or not the New Mexico Supreme Court was correct in saying there’s still something called the jurisdictional exception… and there may be, and I would concede that… I don’t think it can withstand the application of the principles of Illinois v. Vitale or Brown v. Ohio in this particular case, because here–

Byron R. White:

Mr. Sullivan, I gather the Court of Appeals treated the municipal charges as lesser included offenses, did they not?

J. Thomas Sullivan:

–Yes, the Court of Appeals did.

Byron R. White:

And your Supreme Court didn’t disturb that, did it?

J. Thomas Sullivan:

It didn’t address that in the Fugate opinion.

Byron R. White:

But it didn’t disturb that, did it?

J. Thomas Sullivan:

No, not at all.

William H. Rehnquist:

It didn’t have any occasion to disturb it, did it, because it went off on a different line of reasoning.

J. Thomas Sullivan:

I think you’re correct.

It went off on the jurisdictional exception, the applicability.

William J. Brennan, Jr.:

Yes, but for our purposes, we treat the case, don’t we, the way the State Supreme Court and the Court of Appeals treats it.

J. Thomas Sullivan:

I believe so.

And, Your Honor, that’s why we refer back continually to the opinion of the New Mexico Supreme Court in State v. Manzanares, because in Fugate the Supreme Court itself relied on the reasoning of Manzanares.

In Manzanares, I believe the court recognized that these were lesser included offenses of the greater offense.

William J. Brennan, Jr.:

Well, didn’t we do exactly that in Waller?

J. Thomas Sullivan:

I believe it’s a parallel situation, Your Honor.

Byron R. White:

In other words, the intermediate public court treated it as a lesser included offense.

It wasn’t disturbed, and we reversed.

J. Thomas Sullivan:

And then on remand, the Florida court was permitted to review whether or not it was, in fact, a lesser included offense.

Byron R. White:

Whether we intended to overrule Diaz or not, you certainly asked us to do so.

J. Thomas Sullivan:

Well, we do ask you to do so, Your Honor, and we would point out that Diaz has been virtually unfollowed for the proposition, except in New Mexico, that there is a jurisdictional exception which somehow allows a State to avoid the double jeopardy bar in cases exactly like this.

The history of New Mexico decisions is that the jurisdictional exception is well-recognized in New Mexico to say that a conviction on a lesser included offense in a court of limited jurisdiction does not bar a subsequent prosecution of the greater offense.

And I believe that there are numerous cases cited in both briefs in which the New Mexico Supreme Court has held exactly that position.

It’s not a question of whether or not, in this isolated case, these facts gave rise to that.

But that’s a position that’s been generally held by the New Mexico Supreme Court.

The parallel situation is that the Carlsbad municipal ordinance is virtually identical to the State state defining the same offense.

The State had jurisdiction over the offense of DWI or over the offense of reckless driving.

J. Thomas Sullivan:

There is no question that this is not a case where one court had jurisdiction over some type of conduct that–

Byron R. White:

In which court would the State prosecute?

J. Thomas Sullivan:

–The State would prosecute the DWI either in a magistrate court, or could have brought all those charges in a district court as felonies and misdemeanors under the Joinder Rule.

The Carlsbad Municipal Court did not have jurisdiction, obviously, to consider prosecution for the felony offense.

Thank you.

Warren E. Burger:

Mr. Attorney General.

Paul G. Bardacke:

Mr. Chief Justice, may it please the Court, I’ve listened to Petitioner’s argument carefully and I do not see why it is fair for the Defendant Fugate to have killed someone while driving recklessly, and then to turn and say to the State, to society, and the victim’s family, that because the very next morning he rushed into municipal court, pled no contest to careless driving and DWI, that he then cannot be brought to justice for the later vehicular homicide.

Sandra Day O’Connor:

Could the State have declined to proceed against him until it knew the outcome of the injuries?

Paul G. Bardacke:

Justice O’Connor, the injury occurred the evening before.

It was in a town.

It’s unclear whether the district attorney even knew.

But, yes, had they known and had they known that the injury that Lily May Upton suffered, which was only an arm injury and a rib injury which she was subsequently released from the hospital for, constituted great bodily harm at that time, they could have not prosecuted at that time.

William J. Brennan, Jr.:

And, Mr. Attorney General, could the State have superseded the municipality in the magistrate court?

Paul G. Bardacke:

Not on the municipal charges, Justice Brennan, but they could have on similar charges that are violations of State crimes.

William J. Brennan, Jr.:

Well, are they the same?

Paul G. Bardacke:

Almost identical, although the punishments under the municipal statutes and the State statutes are different.

William J. Brennan, Jr.:

Are you telling me, then, that the municipal prosecution, even over the State’s objection, would have to proceed?

Paul G. Bardacke:

It would not have to proceed.

What the fact is is that the municipal charges could have been dropped, and the State could have proceeded on State charges which are similar.

But the fact is in this case, is that we are dealing with different offenses.

These are not the same offenses.

I quarrel with only one fact mentioned by Petitoner’s counsel, and that is that the Court of Appeals ruled that reckless driving and DWI were necessarily lesser included offenses of vehicular homicide.

The Court of Appeals did no such thing, nor did the Supreme Court reach that issue.

Clearly, if you apply–

William J. Brennan, Jr.:

You say the Court of Appeals did not treat them–

Paul G. Bardacke:

–No, they did not.

The Court of Appeals treated reckless and careless driving as the same offense and lesser included in vehicular homicide but the Court of Appeals did not treat DWI and reckless as lesser included of vehicular homicide.

And if it had, it would have been in violation of the controlling law of the State.

There are clearly two cases cited in the brief, where the Supreme Court of the State of New Mexico ruled that DWI and reckless were not lesser included offenses of vehicular homicide and those are State.

Trujillo and State v. Tanton.

Thurgood Marshall:

–Is there a case that says they can’t be tried together?

Paul G. Bardacke:

There are cases saying that they can be tried together.

Thurgood Marshall:

That’s what I thought.

Paul G. Bardacke:

But I think the analysis in this case is clearly that they are not the same offense.

If you apply the Blockburger test as further enunciated in Vitale, you can see than it meets the stringent requirements of Blockburger–

Byron R. White:

Well, that’s a different rationale for affirming the court below.

Paul G. Bardacke:

–But I think it’s the most persuasive rationale.

Byron R. White:

Well, that may be, but that isn’t the word we have from the New Mexico courts in this case.

Paul G. Bardacke:

But I think it’s clear under New York Telephone and Dandridge, that you’re entitled to argue any matter before this Court that could sustain the lower court.

Byron R. White:

Let’s assume we said that the jurisdictional exception does not apply.

Diaz is a dead letter.

We certainly would remand to see if these are really lesser included offenses.

Paul G. Bardacke:

If this Court felt that there was any question as to whether or not they were the same offense under State law, then remand would be appropriate.

But I think it’s clear–

Byron R. White:

Well, we would just have to take your word or what the New Mexico cases say for what the law is, rather than the Court of Appeals of your State.

Paul G. Bardacke:

–Well, the Supreme Court has two clear cases on this issue, Tanton and Trujillo, in which they say specifically that DWI and vehicular homicide are not necessarily included.

And a careful reading of the Court of Appeals decision–

Byron R. White:

Well, that may be.

That may be.

But the standard or their analysis as to how you go about deciding whether something is a lesser included offense or not may not be consistent with federal law.

Paul G. Bardacke:

–I quite agree.

This Court is the one that should say what test New Mexico should follow, and then New Mexico should follow that test and this Court be bound by the interpretations–

Byron R. White:

You are following the statutory elements analysis.

Paul G. Bardacke:

–Justice White, that is what I’m doing, and that’s what Blockburger requires us to do.

It is a case of statutory analysis, and you should look at the two statutes and we see in New Mexico that the legislature–

Byron R. White:

You think that’s the only answer you find in our cases?

Paul G. Bardacke:

–Well, I think we find many answers in your cases, but I think that is the answer, however, that you should follow in this case.

We should look at the statutory analysis.

And clearly in Blockburger, it says whether each provision requires proof of a fact that the other does not.

And in this case, vehicular homicide can be proven without ever proving reckless driving or DWI.

Paul G. Bardacke:

And it is likewise clear that in this case you can prove reckless driving and prove DWI, and you haven’t proved the death that is required.

Byron R. White:

I think that you’re still defending your Supreme Court’s judgment that Diaz is still good law.

Paul G. Bardacke:

Well, I don’t think you need to reach an exception if you’re dealing with the same offenses.

But if this Court were to determine that they were the same offenses, which I think would be contrary to New Mexico law, then I would argue that in fact the Diaz exception is still alive and well in New Mexico.

The Waller holding… very narrow.

William H. Rehnquist:

I think what Justice White is intimating is that we tend to review a question that is decided by the State Supreme Court, rather than trying to find some other grounds for affirming its judgment that may be dependent on State law.

Paul G. Bardacke:

Well, I don’t believe that the State law can really be in dispute with respect to the lesser included offense issue.

However, just as in the case argued before this, it is often times… and that’s what Dandridge and New York Telephone are often about… that a Respondent comes to this Court and asks you to affirm a judgment of the lower court, based on a different ground, and I think it is, on further reflection, a much more persuasive ground, and the Court need not get to the exception.

The exception is easier analysis, but should this Court determine that there is question about whether they are the same offense or not, then remand might be appropriate.

I don’t think that question exists.

And, furthermore, I think–

John Paul Stevens:

The additional fact is driving under the influence of drugs.

Paul G. Bardacke:

–Well, there are many additional drugs.

As Petitioner’s counsel pointed out, he was charged under an open charge, Justice Stevens, of vehicular homicide which amounts to the unlaw operation of a vehicle.

And unlawful operation of a vehicle in State v. Barela in our case can be failure to stop, speeding, crossing the double line, two of which, by the way, were present in the Fugate case.

At the testimony in the trial and part of the record in this case, he was speeding and he ran a stop sign.

Both of those could give rise to vehicular homicide the exact same statute with which he was charged in this case.

John Paul Stevens:

Can they also give rise to the reckless driving charge?

Paul G. Bardacke:

It depends under the facts of reckless driving.

He would have been charged… if it showed intent and willful and wantonness, the failure to stop and the speeding could amount to recklessness, but not in all cases.

I think that if this Court were, however, convinced that it’s either the jurisdictional exception or nothing, I think it’s clear that the Waller case is a very, very narrow holding.

It merely held that the Florida court was in error for trying the same Defendant for the identical charge in two cases.

We’re not dealing with the identical charge in this case.

John Paul Stevens:

May I ask, if we were… following up on Justice Brennan’s question earlier… if the reckless driving charge had been brought in the court of general jurisdiction after it had been brought in the court of limited jurisdiction, would that have been permissible in your view?

Paul G. Bardacke:

Not permissible.

That is the identical offense, and it could not have been brought in the subsequent–

John Paul Stevens:

The dual jurisdiction exception would not apply in that event.

Paul G. Bardacke:

–I quite agree.

John Paul Stevens:

What is the scope of the… the jurisdictional exception then, does not apply if the offenses are the same.

You would concede that, I gather.

Paul G. Bardacke:

That’s correct, if the offenses are identical.

John Paul Stevens:

If you’re wrong on the major argument you’re making, you concede you lose.

Paul G. Bardacke:

No, I do not concede we lose.

John Paul Stevens:

If it’s the same offense… I don’t understand.

Why is one the same… I know you don’t agree with this, but if the homicide charge, vehicular homicide charge, were the same offense, why would the jurisdictional exception analysis be any different than if they had charged him for reckless homicide in the court of general jurisdiction?

Paul G. Bardacke:

I understand the Court’s point, and perhaps it wouldn’t.

And perhaps it wouldn’t.

I think that what is clear in this case also is that the original circumstances which powered the rule of double jeopardy do not exist in this case.

I mean double jeopardy is founded in… has its roots in the harshness of penalties in the British system.

And I think it was intended to come to a point where mere traffic citations in a complex society could raise to a constitutional level.

This gentleman went in the next morning, pled no context, went to DWI school for 21 days before completing the weekly session in the evening–

Thurgood Marshall:

Do I understand you, that this man voluntarily went in and made them give him 21 days?

Paul G. Bardacke:

–Yes.

He went in the next morning.

Thurgood Marshall:

Do you know of any other place where somebody has gone in and made them give him 21 days?

Paul G. Bardacke:

No, but I think 21 days–

Thurgood Marshall:

Well, isn’t it strange?

Paul G. Bardacke:

–No.

Twenty-one days is a very minor penalty for drunk driving and for careless driving.

Thurgood Marshall:

Well, do you know of anybody else who has volunteered to take 21 days?

Paul G. Bardacke:

Well, if someone was injured in the accident and he was clever, he might very well have gone in the next morning and volunteered.

Thurgood Marshall:

Do you have any other cases in New Mexico?

Paul G. Bardacke:

Where he volunteered?

Thurgood Marshall:

Is New Mexico different from all other States?

Paul G. Bardacke:

No, it is not.

Thurgood Marshall:

Are the people in New Mexico just the kind that want to go to 21 days?

Paul G. Bardacke:

We have a two-tier system there where people routinely are supposed to go in and clear themselves of traffic citations.

That’s what traffic citations are about.

We have a different societal purpose in dealing with traffic citations, prosecuting people for them, as many as we have resources for, processing them quickly, and getting these people off the street.

That is different than vehicular homicide where society and our legislature, in defining a separate statutory–

Thurgood Marshall:

But did you get him off the streets?

You didn’t.

He just went to a school.

Paul G. Bardacke:

–Well–

Thurgood Marshall:

He didn’t go to jail.

Paul G. Bardacke:

–I think, Justice Marshall, that’s why in this case, this man didn’t run the gauntlet twice.

He didn’t have two trials.

He didn’t have two punishments that were unreasonable.

He had just what our legislature intended when it proscribed this kind of criminal activity.

And in Brown v. Ohio, this Court said it is within the legislature’s domain, within the legislature’s domain to describe crimes and to fix penalties.

And we described two different crimes and two different penalties–

Thurgood Marshall:

Couldn’t you have made it three?

Paul G. Bardacke:

–It could have been three, if in fact–

Thurgood Marshall:

In fact, there is no limit to it, is there?

Paul G. Bardacke:

–Well, it depends what the legislature intends.

And I think in this case they clearly describe two separate penalties, two separate crimes, and that is what is within the legislature’s domain in this case.

And I think that if this case were reversed, there would be horrible consequences for both society and drivers like Mr. Fugate, because if this case were reversed, it would require the police officer in the field to charge the maximum consequences of the act of a driver.

If there were a minor injury, that police officer in one of the 98 municipalities of New Mexico that is often far away from any court of general jurisdiction, far away from any district attorney, would be out there and say, well, this may be vehicular homicide or great bodily harm, even though it’s a minor injury.

And if you have to charge like that to avoid the consequences of perhaps a constitutional claim of double jeopardy, then what you have is, you have lots of people being overcharged.

You are requiring them to stay in jail longer, to have higher bail set.

You require the process to be clouded, while later on, a district attorney has to separate the wheat from the chaff, the meritorious case from the meritless case.

Thurgood Marshall:

Has that happened in any other State yet that doesn’t have the New Mexico rule?

Paul G. Bardacke:

Which New Mexico rule?

Thurgood Marshall:

The one that you say that you can try him any time you get ready to try him.

Or do you have to put the maximum on him?

I mean every other State has gotten along with this without the thing you have in New Mexico.

Paul G. Bardacke:

Well, I don’t think so.

I think most States have a two-tier system.

And I think the–

Thurgood Marshall:

They aren’t in this case.

Thurgood Marshall:

They aren’t interested in it.

Paul G. Bardacke:

–I think the two-tier system is important and it’s important in a complex society where we have lots of cars, lots of drunk drivers, lots of reckless drivers, and lots of people being killed.

I think the purposes that a legislature directs itself to when it describes crimes different and penalties different, recognizes the fact that we have a desperate need for an almost administrative system to handle traffic citations and a more serious, formal, criminal mode in which to handle a death case, because in that case the legislature intends to serve the public interest in punishing people for the consequences of the transaction that gave rise to the death.

I think that in this case, it is clear that we are not dealing with the same offense, and in not dealing with the same offense, we don’t yet reach the issue of the jurisdictional exception.

But if we do reach the issue of the jurisdictional exception, I think it’s viable.

Interestingly enough, the day this Court decided Waller, it also decided Ashe, and in footnote 7 of Ashe you continued the jurisdictional exception.

And in fact, in continuing that jurisdictional exception in Ashe, decided the same day, you have given it vitality.

It is alive, and I think it is a perfect kind of exception to deal with traffic citations, in recognizing that the society has an interest in handling almost administratively traffic citations, and in a separate criminal way handling vehicular homicide.

I would urge this Court to affirm the Supreme Court of the State of New Mexico.

Thank you.

John Paul Stevens:

May I just ask one other question?

You said in footnote 7 of Ashe, we confirm the jurisdictional exception?

Paul G. Bardacke:

I believe it was footnote 7 of Ashe.

John Paul Stevens:

I’ve got it in front of me.

It’s just got a lot of cases cited.

Paul G. Bardacke:

Well, doesn’t it… isn’t it at footnote… I’m sorry.

It’s in footnote 7 of the concurring opinion of Justice Brennan, I believe.

John Paul Stevens:

So it’s not the Court’s opinion.

Paul G. Bardacke:

No, it was a concurring opinion of Justice Brennan.

John Paul Stevens:

That makes a difference.

Paul G. Bardacke:

Yes, it does make a difference.

John Paul Stevens:

Which way?

[Laughter]

Paul G. Bardacke:

Yes, I think it makes a difference, it’s more in favor of my case.

[Laughter]

Thank you.

Warren E. Burger:

Do you have anything further, Mr. Sullivan?

J. Thomas Sullivan:

Just a few points.

Your Honor.

The Court of Appeals in its decision held under New Mexico statute 66A-101C, vehicular homicide can be committed only by reckless driving or DWI.

J. Thomas Sullivan:

If you look at the statute that defines the felony offense of reckless… of vehicular homicide it’s predicated on a finding of either DWI or driving while under the influence of drugs or a finding that the Defendant drove recklessly.

They are, by statute and by the decisions of the court, lesser included offenses of vehicular homicide.

With respect to the argument that Defendant received a relatively minor sentence and for that reason we should not apply the double jeopardy clause, the Defendant subjected himself at trial in the Carlsbad Municipal Court to a potential punishment of 90 days confinement in jail.

If there’s a problem in this case, the problem results from the State legislature’s decision in setting penalties, which the attorney general now apparently argues are their grant of concurring jurisdiction to municipalities to penalize DWI.

If that’s the problem, if 98 municipalities cannot seem to have the police officers correctly assess the merits of a prosecution at the time, the simple solution to that is for the legislature to withdraw from the municipality the power to try DWI as a traffic ticket offense, to provide only that the District Court, upon review by the district attorney, and presentment of an indictment or filing of the criminal information, should have the power to assess which charges should be brought.

William H. Rehnquist:

Do you really regard that as a simple solution?

J. Thomas Sullivan:

I think that’s a relatively simple solution if the problems the attorney general says are of the magnitude he claims that they are.

It seems to me that the Petitioner’s punishment in this case was appropriate, and the legislature determined it was appropriate to fit a first offense DWI situation.

It might have been appropriate whether there was a death or not.

The trial court certainly was within its jurisdiction at the district court level to probate the entire sentence.

The Defendant was placed on a period of probation for six months after a 21-day confinement in an alcohol care unit.

I believe that’s something more than DWI school.

But nevertheless, he was subjected to punishment, and he discharged at least the majority of that punishment before the State came back and charged him with the greater offense in District Court.

It seems to me that this kind of multiple prosecution is exactly what the double jeopardy clause protects against, the filing of a relatively minor charge in a court of limited jurisdiction, and then the subsequent filing of a greater charge with a minor charge was clearly the lesser included offense.

To follow the attorney general’s reasoning, all significant or felony charges could be broken down into constituent elements, could be prosecuted in courts of limited jurisdiction; the State could evaluate the merits of its case and proceed to felony prosecution later.

That’s the kind of thing that it seems to me the double jeopardy clause has protected against traditionally, and it seems to me that the opinions in Illinois v. Vitale and Brown v. Ohio implicitly recognize there is no question in this case but that these are lesser included offenses, that the Petitioner discharged his duty in going to court, pleading no contest, accepting his punishment, and then in discharging that punishment.

For that reason, we believe that the decision in the New Mexico Supreme Court in applying a jurisdictional exception, which I still think is rooted in the notion of dual sovereignty where you’re talking about municipal and subsequent State prosecutions, was simply incorrect.

And this Court should reverse the judgment of the New Mexico Supreme Court.

Thank you.

Thurgood Marshall:

Mr. Sullivan–

J. Thomas Sullivan:

Yes, Your Honor.

Thurgood Marshall:

–I don’t know what it has to do with this case, but is there any other crime that this man could have been tried for in New Mexico if the victim had not died?

J. Thomas Sullivan:

He could have been tried for vehicular homicide Your Honor.

Thurgood Marshall:

If he hadn’t died–

J. Thomas Sullivan:

If he hadn’t died, he still could have been tried under the New Mexico statute for vehicular homicide.

Thurgood Marshall:

–You mean in the first instance?

J. Thomas Sullivan:

In the first instance–

Thurgood Marshall:

How can he be convicted of homicide if there’s no one dead?

J. Thomas Sullivan:

–Under the New Mexico statute, the offense is complete if an individual sustains a great bodily injury in the course of an accident while the Defendant is driving unlawfully.

Thurgood Marshall:

Yes, but–

J. Thomas Sullivan:

It’s a misnomer to call it a homicide because the statute encompasses both a serious injury case and a death case.

Thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.