Stevens, William Jack

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Volume 68 | Issue 1 Article 8December 1965Criminal Law--Administrative Law and the Right toTrial by JuryWilliam Jack StevensWest Virginia University College of LawFollow this and additional works at: https://researchrepository.wvu.edu/wvlrPart of the Administrative Law Commons, Constitutional Law Commons, and the Criminal LawCommonsThis Case Comment is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been acceptedfor inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contactian.harmon@mail.wvu.edu.Recommended CitationWilliam J. Stevens, Criminal Law--Administrative Law and the Right to Trial by Jury, 68 W. Va. L. Rev. (1965).Available at: https://researchrepository.wvu.edu/wvlr/vol68/iss1/8CASE COMMENTSprotection guaranteed by the Constitution should not be limitedlest our judicial machinery should become overburdened.Moreover, the dissent points out that if the Court must limitMapp prospectively, it should at least allow Mapp to be appliedretrospectively in cases where the offense was committed afterthe Mapp offense, but the conviction was made final before Mappwas decided. Linldetter's offense was committed after the Mappoffense, but his conviction was made final before Mapp. Is theconviction of Linkletter impregnable to collateral attack becausehis trial and appeal were pushed along at a faster pace thanMapp's? If the Ohio courts had proceeded with the same speedas the Louisiana courts, Linkletter's case would not have beendecided before the decision in Mapp; consequently, Linidetterwould have received direct relief after Mapp was decided.The Linkletter decision represents the first time the SupremeCourt has limited its decision prospectively in a criminal caseinvolving constitutional rights. This raises the question of whetherthe Court will limit its decisions prospectively in the future, whereconstitutional issues similar to the one in Mapp are involved. Intrying to determine how the Court will decide in these areas,one should be cautious when relying on precedent. The cases be-fore Linkletter indicated a retrospective application might begivefi Mapp; however, the Court distinguished these precedentsand limited the rule in Mapp prospectively. Consequently, nogeneralization should be drawn in regard to retrospectivity incriminal cases not yet adjudicated by the Supreme Court.Menis Elbert Ketchum, IICriminal Law-Administrative Law and the Right toTrial by JuryDs were indicted for evasion of taxes owed for the years 1944,1945, and 1946. The taxes were duly assessed by the commissionerin 1955. The indictment charged Ds with wilfully attempting toevade and defeat the payment of income taxes. In the criminalprosecution, the jury was instructed that the assessments werevalid as a matter of law because the validity of an administrativeorder cannot be passed upon by a jury. Held, reversed. In acriminal prosecution of one charged with the commission of a1965]1Stevens: Criminal Law--Administrative Law and the Right to Trial by JuryPublished by The Research Repository @ WVU, 1965WEST VIRGINIA LAW REVIEWfelony, Ds have an absolute right to a jury determination upon allessential elements of the offense. United States v. England, 347F.2d 425 (7th cir. 1965).Administrative law and its effect on the right to trial by juryas guaranteed by the sixth amendment of the Constitution presenta novel and perplexing problem. In a criminal prosecution forthe violation of an administrative order, is the accused guaranteedthe right to have the validity of the order passed upon by the jury?.The Supreme Court faced this question in a case which aroseunder the 1940 Selective Training and Service Act. In Falbo v.United States, 320 U.S. 549 (1944), D was criminally prosecutedfor wilful failure to obey a local draft board order to report forassignment to work of national importance. D claimed that hehad been improperly classified as a conscientious objector ratherthan a minister. The Court held that the validity of an administra-tive order could not be questioned in a criminal proceeding untilthe administrative process had been completed. Any review thenwould be by the court and not by a jury. The Court also indicatedthat if Congress had provided an exclusive method of judicialreview, a collateral attack on the administrative order would notbe permitted in a criminal proceeding.Two months later the Court faced the problem in Yakus v.United States, 321 U.S. 414 (1944). Ps were butchers who vio-lated an Office of Price Administration price ceiling. They didnot avail themselves of the review procedure established by theOffice of Price Administration Act. They were not allowed tochallenge the validity of the order as a defense to a criminalproceeding. The Court held that D had no constitutional rightto have the validity of a price regulation submitted to the jurywhen he had adequate means to test the validity of the regulationin the Emergency Court of Appeals.The issue was raised again in 1946 and 1947 in two similiarcases. In Estep v. United States, 327 U.S. 114 (1946), and in Coxv. United States, 332 U.S. 442 (1947), the validity of a local draftboard order was questioned. Ps wanted the jury to pass upon thevalidity of the classifications by the board. The Court held inEstep that the validity of an administrative order could be re-viewed in a criminal proceeding. However, this was limited tojudicial review by the court, and the jury had no right to pass[Vol. 682West Virginia Law Review, Vol. 68, Iss. 1 [1965], Art. 8https://researchrepository.wvu.edu/wvlr/vol68/iss1/8CASE COMMENTSupon it. In both of the cases, the Court held that the constitutionalright to jury trial does not include the right to have a jury passon the facts underlying the validity of an administrative order.A similiar result was reached in the case of United States v.Heikkiner, 240 F.2d 94 (7th cir. 1957). Here, D was charged withthe violation of a deportation order. In the criminal prosecutionfor violation of this order, D contended that he was being de-prived of his liberty in violation of due process and the right totrial by jury under the sixth amendment. D wanted the issue ofthe validity of the order to be ruled upon by the jury. The courtfollowed the decisions in the Estep case and the Cox case, holdingthat although D was entitled to attack the validity of the deport-ation order by having the issue submitted to the trial judge andthe reviewing courts, he had no constitutional right to have thejury pass upon the validity of the order.Several years prior to the Heikkiner case, there was evidenceof a shift in position of several of the Supreme Court Justices onthe issue involved in the present case. Delivering the majorityopinion in United States v. Spector, 343 U.S. 169 (1952), JusticeDouglas stated that the issue of "splitting the elements" of acriminal offense between an administrative agency and a trialcourt or jury was far from being settled federal practice. Althoughthe question was not in issue in the case, he stated that therewould be time to consider whether the validity of a deportationorder could be ruled upon either by the jury or by the court.The court's holding in the principal case appears to represent acomplete reversal of the position taken in previous cases. Thus,all essential elements of a crime must be determined by the jury.This means that the jury is not to accept any essential elementas being established merely because such element previously waspassed upon by an administrative agency. Administrative proceed-ings are often informal. Guilt does not have to be shown beyonda reasonable doubt, but only by a preponderance of the evidence.Almquist v. Shenandoah Nurseries, 218 Iowa 724, 354 N.W. 35(1934). However, the protection offered by the sixth amendmentis attenuated by allowing an administrative agency to rule on anessential element of a crime.Perhaps, the decision in the instant case will eliminate thispractice. If so, the court has taken a significant step towards allow-1965]3Stevens: Criminal Law--Administrative Law and the Right to Trial by JuryPublished by The Research Repository @ WVU, 1965WEST VIRGINIA LAW REVIEWing an administrative order to be passed upon by a jury where suchorder constitutes an essential element of a crime. The constitutionalguarantees of a jury determination of all the essential elements ofa crime are thus preserved.William Jack StevensCriminal Law-KidnappingThe Ds entered *the complaintants' car and forced them todrive twenty-seven blocks. During the trip the Ds robbed thecomplaintants. The Ds were convicted of kidnapping, robbery,and criminal possession of a pistol. The New York Court ofAppeals reversed the kidnapping conviction. A majority of thejudges reasoned that because kidnapping is a very serious crimewith harsh punishment and the offense committed was essentiallyrobbery, the kidnapping statute should not be applied. The courtreached this conclusion after admitting that the language of thekidnapping statute might literally apply. People v. Levy, 15 N.Y.2d159, 204 N.E.2d 842 (1965).Before 1932 kidnapping was considered a less serious crime thanit is today. In thirty states the penalty for kidnapping was lessthan life imprisonment. 26 J. Am. INST. CumM. L.&C. 762 (1936).In 1932 a rash of kidnappings culminated in the abduction andmurder of Charles Lindbergh, Jr., and to meet the threat of thesudden outbreak of kidnapping legislatures in most states changedtheir statutes or enacted new ones. West Virginia followed atypical pattern. In 1933 the West Virginia legislature decided toimpose the death penalty for the crime of false imprisonment toextort ransom. W. VA. CoDE ch. 61, art. 2, § 14a (Michie 1961);Comment, 67 W. VA. L. REv. 156 (1965).Kidnapping statutes have changed little from their 1930 form.They all contemplate the unlawful restraint of the victim. How-ever, they may be divided into three different groups as to theelement of the defendant's purpose. A majority of the state actsmake punishable as kidnapping an unlawful restraint only whenthe defendant's purpose was to extort ransom. Other acts arebroader in that the defendant's purpose may have been either toextort ransom or to rob. A=z. REV. STAT. art. 25, § 13-492 (1965);CAL. PENAL CODE. § 209; NEV. REv. STAT. tit. 13, ch. 20.320 (1963);[Vol. 684West Virginia Law Review, Vol. 68, Iss. 1 [1965], Art. 8https://researchrepository.wvu.edu/wvlr/vol68/iss1/8

Criminal Law--Administrative Law and the Right to Trial by Jury

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Criminal Law--Administrative Law and the Right to Trial by Jury

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