450 N.W.2d 707 (N.D. 1990), 890404, Odden v. O'Keefe

• Citation: 450 N.W.2d 707
• Opinion Judge: PER CURIAM. The Honorable James H O'Keefe Presiding Northeast Judicial District State of North Dakota; the Honorable William A Neumann of the District Court Northeast Judicial District State of North Dakota; and McGee Hankla Backes & Wheeler Ltd Norwest Bank Building PO Box 998 Minot ND 58702-0998 Donald L Peterson for respondents
• Party Name: Bernhard ODDEN, Petitioner, v. The Honorable James H. O'KEEFE, Presiding Judge, Northeast Judicial District, and the Honorable William A. Neumann, Judge of the District Court, McHenry County, Northeast Judicial District, Respondents.
• Attorney: Chapman & Chapman, Bismarck, Charles L. Chapman and Michael J. Geiermann, for petitioner.
• Case Date: January 17, 1990
• Court: North Dakota Supreme Court

Page 707

450 N.W.2d 707 (N.D. 1990)

Bernhard ODDEN, Petitioner,

v.

The Honorable James H. O'KEEFE, Presiding Judge, Northeast

Judicial District, and the Honorable William A. Neumann,

Judge of the District Court, McHenry County, Northeast

Judicial District, Respondents.

Civ. No. 890404.

Supreme Court of North Dakota.

January 17, 1990

Chapman & Chapman, Bismarck, Charles L. Chapman and Michael J. Geiermann, for petitioner.

The Honorable James H. O'Keefe, Presiding Judge, Northeast Judicial District, State of North Dakota; the Honorable William A. Neumann, Judge of the District Court, Northeast Judicial District, State of North Dakota; and McGee, Hankla, Backes & Wheeler, Ltd., Norwest Bank Building, P.O. Box 998, Minot, ND 58702-0998, Donald L. Peterson, for respondents.

PER CURIAM.

The petitioner, Bernhard Odden, requests this court to issue a supervisory writ requiring the Honorable James H. O'Keefe, the Presiding Judge of the Northeast Judicial District, and the Honorable William A. Neumann, a judge in that district, to schedule his civil action for jury trial. The application for a supervisory writ is denied.

Odden's personal injury and wrongful death action was scheduled for a jury trial before Judge Neumann in the Northeast Judicial District on January 29, 1990. By letter, dated December 20, 1989, Judge Neumann informed Odden that his scheduled jury trial was being postponed because Judge O'Keefe had ordered a moratorium on civil jury trials to achieve necessary budget cuts. The moratorium was anticipated to last for the balance of the 1989-1991 biennium. Odden petitioned this court for a supervisory writ. ¹

Page 708

The court's authority to issue a supervisory writ is derived from Article VI, Sec. 2 of the North Dakota Constitution. Lang v. Glaser, 359 N.W.2d 884 (N.D.1985). Our power to issue a supervisory writ is discretionary and cannot be invoked as a matter of right. Minot Daily News et al. v. Holum, 380 N.W.2d 347 (N.D.1986). Our superintending control over inferior courts is used to prevent injustice in extraordinary cases where no other remedy is adequate or allowed by law. Minot Daily News et al. v. Holum, supra; Patten v. Green, 369 N.W.2d 105 (N.D.1985). Although we conclude that Odden is entitled to have the moratorium on his civil jury trial lifted, we believe that he will receive this remedy in the district court without the requested writ.

The issue in this case is whether a moratorium on all civil jury trials for the balance of the 1989-1991 biennium, imposed for budgetary reasons, is constitutional.

Article 1, Sec. 13, N.D. Const., provides, in relevant part:

"The right of trial by jury shall be secured to all, and remain inviolate."

The Seventh Amendment of the United States Constitution provides:

"In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact, tried by a jury, shall be otherwise re-examined in any court of the United States than according to the rules of the common law."

Although the Seventh Amendment is not applicable to state court proceedings under the Fourteenth Amendment [Minneapolis & St. Louis R.R. Co. v. Bombolis, 241 U.S. 211, 36 S.Ct. 595, 60 L.Ed. 961 (1916); Runia v. Marguth Agency, Inc., 437 N.W.2d 45 (Minn.1989) ], both our state and the federal constitutional provisions preserve the right to trial by jury in those cases which historically were subject to trial by jury at common law. Landers v. Goetz, 264 N.W.2d 459 (N.D.1978).

In Landers, supra, 264 N.W.2d at 462, this court compared the scope of the right to a jury trial under both the federal and state constitutions:

"In the State Constitution, it is the right to the essential incidents of trial by jury as it existed in the Territory of Dakota which remains inviolate. Power v. Williams, 53 N.D. 54, 205 N.W. 9 (1925); Smith v. Kunert, 17 N.D. 120, 115 N.W. 76 (1908). There is no real difference between the Federal constitutional right and the right under Territorial law, since the latter was the same as the right at common law and under the United States Constitution. Power v. Williams, supra."

Both Landers v. Goetz, supra, and Power v. Williams, supra, indicate that the state and federal constitutional provisions guaranteeing the right to a jury trial in civil actions are similar in scope and protect the same constitutional rights. See also General Electric Credit Corp. v. Richman, 338 N.W.2d 814 (N.D.1983) [North Dakota has a high regard for the right to a jury trial in civil cases and has been more liberal than most states in construing that right].

We have found no North Dakota cases dealing...