City of Fargo v. Dawson
Decision Date | 21 February 1991 |
Docket Number | Cr. N |
Citation | 466 N.W.2d 584 |
Parties | CITY OF FARGO, Petitioner, v. The Honorable Georgia DAWSON, Judge of the County Court, Cass County, East Central Judicial District and Lester Schultz, Respondents. CITY OF FARGO, Petitioner, v. The Honorable Georgia DAWSON, Judge of the County Court, Cass County, East Central Judicial District and Dennis Herr, Respondents. CITY OF FARGO, Petitioner, v. The Honorable Frank L. RACEK, Judge of the County Court, Cass County, East Central Judicial District and Rande Reinhardt, Respondents. os. 900303, 900304 and 900311. |
Court | North Dakota Supreme Court |
Thomas J. Gaughan (argued), City Atty., Fargo, for petitioner.
William Kirschner (argued), Fargo, for respondent Lester Schultz.
C. Charles Chinquist (argued), Fargo, for respondent Dennis Herr.
In three consolidated cases, the City of Fargo requests this court to issue a supervisory writ directing the Honorable Georgia Dawson and the Honorable Frank L. Racek, judges of the County Court of Cass County, East Central Judicial District, to reverse their orders holding that consent of the City to a defendant's waiver of a jury trial is unnecessary in all cases transferred from municipal court to county court pursuant to NDCC Sec. 40-18-15.1. We grant the supervisory writ.
This controversy arises from three prosecutions which were originally commenced in Fargo Municipal Court. The three defendants did not waive in writing their rights to jury trials, and the cases were transferred to county court by operation of NDCC Sec. 40-18-15.1. Under Sec. 40-18-15.1, a municipal court prosecution is automatically transferred to county court for trial if the defendant does not waive in writing the right to a jury trial within 28 days after arraignment.
In county court, the defendants moved to waive their jury trials and requested bench trials. The City objected to the motions. The county court ruled that the defendants could waive their rights to a jury trial over the objection of the city prosecutor. Judge Dawson reasoned:
The City petitioned this court requesting that we exercise our supervisory jurisdiction and reverse the orders of the judges of the county court.
Our authority to issue a supervisory writ is derived from Article VI, Sec. 2 of the North Dakota Constitution. Odden v. O'Keefe, 450 N.W.2d 707, 708 (N.D.1990). The exercise of our supervisory jurisdiction is discretionary, rare and done only to rectify errors or prevent injustice when no adequate alternative remedies exist. Minot Daily News v. Holum, 380 N.W.2d 347, 349 (N.D.1986). In this case, we invoke our supervisory jurisdiction because the City has no adequate alternative remedy. See NDCC Sec. 29-28-07; Minot Daily News v. Holum, supra.
Respondents 1 assert that a prosecutor has no right to object to a defendant's waiver of a jury trial in county court. We disagree.
"Except as otherwise provided by statute and in Rule 54," the Rules of Criminal Procedure "govern the practice and procedure in all criminal proceedings in the district courts and, so far as applicable, in all other courts, including prosecutions for violations of municipal ordinances." NDRCrimP 1. See also NDRCrimP 54(a). NDRCrimP 23(a) provides:
See also NDCC Sec. 29-16-02. 2
Generally, there is no constitutional impediment to a court or prosecuting attorney withholding approval or consent to a defendant's attempted waiver of a jury trial because a "defendant does not have a constitutional right to waive a jury trial and insist upon a trial before the court." State v. Kranz, 353 N.W.2d 748, 751 n. 2 (N.D.1984). 3 Respondents recognize that in the past, we have strongly indicated that consent of the prosecutor under Rule 23(a) is one of the requirements for a valid waiver of a jury trial in county court. See State v. Bohn, 406 N.W.2d 677, 680 (N.D.1987); State v. Mathisen, 356 N.W.2d 129, 134 (N.D.1984); State v. Kranz, supra, 353 N.W.2d at 750. Respondents assert, however, that those decisions did not directly address the issue in view of NDCC Secs. 27-07.1-31 and 27-07.1-32, which provide:
Respondents assert that because these statutes apply specifically to proceedings in county courts and do not expressly give the prosecutor any right to object to a waiver of jury trial, the procedure for waiver in county courts is "otherwise provided by statute" [NDRCrimP 1], and Rule 23(a) is therefore inapplicable. We disagree.
The respondents' argument is premised on the rule of statutory construction that when an irreconcilable conflict exists between a general provision and a special provision, the special provision ordinarily prevails. See NDCC Sec. 1-02-07. However, we do not believe that there is an irreconcilable conflict between these statutes and Rule 23(a).
In State v. Pandolfo, 98 N.W.2d 161, 165 (N.D.1959), this court said:
[Emphasis added.]
Thus, although Secs. 27-07.1-31 and 27-07.1-32 allow a defendant to waive the right to a jury trial in county court, they do not imply that a defendant is entitled as a matter of right to a bench trial. Because these statutes do not give the defendant an absolute right to a bench trial, there is no irreconcilable conflict with the Rule 23(a) requirement of a prosecutor's consent to waiver of jury trial. Therefore, Rule 23(a) applies to these county court proceedings. 4
We have considered the other arguments raised by the respondents and they do not affect our decision.
We conclude that NDRCrimP 23(a), requiring a prosecutor's consent to waiver of a jury trial, is applicable to county court cases which have been transferred from municipal court pursuant to Sec. 40-18-15.1. Accordingly, the supervisory writ is granted.
1 By "respondents," we refer to municipal and county court defendants Dennis Herr and Lester Schultz, the only ones to file a response on the merits with this court opposing the supervisory writ. Judge Dawson and Judge Racek did not appear.
2 NDCC Sec. 29-16-02 provides:
3 In Singer v. United States, 380 U.S. 24, 37-38, 85 S.Ct. 783, 791, 13 L.Ed.2d 630 (1965), the United States Supreme Court, construing
FedRCrimP 23(a) from which our rule was adopted, hinted that governmental consent is not an inflexible condition precedent to a trial before a judge...
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