Smith v. Isakson

• Decision Date: 22 July 2021
• Docket Number: No. 20210057,No. 20210004,20210004
• Citation: 962 N.W.2d 594
• Parties: Eric SMITH, Petitioner v. Charles R. ISAKSON, Municipal Judge, Bismarck and City of Bismarck, Respondents Eric Smith, Petitioner v. James S. Hill, Judge of the District Court, South Central Judicial District ; and City of Bismarck, Respondents
• Court: North Dakota Supreme Court

962 N.W.2d 594

Eric SMITH, Petitioner

v.Charles R. ISAKSON, Municipal Judge, Bismarck and City of Bismarck, Respondents

Eric Smith, Petitioner

v.James S. Hill, Judge of the District Court, South Central Judicial District ; and City of Bismarck, Respondents

No. 20210004

No. 20210057

Supreme Court of North Dakota.

FILED JULY 22, 2021

Eric N. Smith, self-represented, Superior, Wisconsin, petitioner.

Julie Mees (argued), Assistant City Attorney, and Jannelle R.S. Combs (appeared), City Attorney, Bismarck, North Dakota, for respondent City of Bismarck.

VandeWalle, Justice.

[¶1] Eric Smith filed a petition for a writ of supervision after he was found guilty of violating a Bismarck ordinance restricting the use of public grounds without a permit. Smith argues he had a constitutional right to a jury trial for the offense. We grant the writ of supervision and remand the case back to the district court for a jury trial.

I

[¶2] On August 2, 2020, Smith was operating a stand selling political merchandise promoting a presidential campaign in south Bismarck. Bismarck police officers responded after an employee of a nearby restaurant and Smith himself called dispatch. Smith claimed the restaurant employee removed his political flags from the area where he set up his stand. Officers discovered Smith's stand was located on a boulevard between the sidewalk and Washington Street. The City of Bismarck ("the City") alleges officers informed Smith of the ordinance prohibiting commercial use of public grounds without a permit, and Smith continued to sell his merchandise.

[¶3] On September 2, 2020, the City filed a summons and complaint against Smith in municipal court alleging he violated Bismarck City Ordinance § 10-05.1-01, which restricts the commercial use of public property. At his arraignment, Smith requested the action be removed from municipal court to district court for a jury trial. Municipal Judge Severin denied the request, stating Smith had "no right to jury trial." That same day, Smith filed a formal request to remove the case to district court for a jury trial. Smith later filed a motion requesting the removal. The municipal court denied Smith's request, stating Smith had no right to a jury trial for an infraction.

[¶4] Smith later filed numerous documents with the municipal court, including a copy of a complaint addressed to the Judicial Conduct Commission against Judge Severin. Judge Severin recused himself, and Municipal Judge Isakson was assigned to the case. On December 1, 2020, Smith filed a notice of appeal of the order denying a jury trial to district court with the municipal court. Smith filed a petition for a writ of supervision with this Court on January 5, 2021.

[¶5] A bench trial was held in Bismarck municipal court on January 7, 2021. Before the trial began, Judge Isakson denied all of Smith's pre-trial filings. The municipal court found Smith guilty and ordered him to pay a $100 fine. One day later in the municipal court, Smith filed a notice of appeal of the judgment and the order denying a jury trial to district court.

[¶6] On February 22, 2021, Smith filed a second petition for a writ of supervision with this Court. After he filed the second petition, Smith filed more motions with the district court. The district court issued an order staying the proceedings until this Court acted upon Smith's petitions for supervisory writs.

II

[¶7] Article VI, Section 2 of the North Dakota Constitution provides this Court with "original jurisdiction with authority to issue, hear, and determine such original and remedial writs as may be necessary to properly exercise its jurisdiction." See also N.D.C.C. § 27-02-04 ("In the exercise of its appellate jurisdiction, and in its superintending control over inferior courts, it may issue such original and remedial writs as are necessary to the proper exercise of such jurisdiction."). We have previously said:

Our authority to issue supervisory writs arises from Article VI, Sec. 2 of the North Dakota Constitution and N.D.C.C. § 27-02-04. The authority is discretionary, and it cannot be invoked as a matter of right. We issue supervisory writs only to rectify errors and prevent injustice when no adequate alternative remedies exist. Further, we generally do not exercise supervisory jurisdiction when the proper remedy is an appeal, even though an appeal may be inconvenient or increase costs. This authority is exercised rarely and cautiously and only in extraordinary cases. Finally, determining whether to exercise original jurisdiction is done on a case-by-case basis.

Holbach v. City of Minot , 2012 ND 117, ¶ 12, 817 N.W.2d 340 (internal citations and quotations omitted).

[¶8] Contrarily, under N.D. Const. art. VI, § 6, our appellate jurisdiction is provided by law. Section 29-28-06, N.D.C.C., allows a criminal defendant to appeal from:

1. A verdict of guilty;

2. A final judgment of conviction;

3. An order refusing a motion in arrest of judgment;

4. An order denying a motion for a new trial; or

5. An order made after judgment affecting any substantial right of the party.

[¶9] The right to a trial by jury was described as "the most important of constitutional rights" long ago. Riemers v. Eslinger , 2010 ND 76, ¶ 3, 781 N.W.2d 632 (quoting Barry v. Truax , 13 N.D. 131, 137, 99 N.W. 769, 770 (1904) ). Smith argues he is entitled to a jury trial in this case. Although Smith could have directly appealed this issue under N.D.C.C. § 29-28-06 after the district court addressed it, we deem it advisable to exercise our discretion, in the best interests of justice and judicial economy, to resolve it now since it concerns a vital constitutional right. See Smithberg v. Jacobson , 2020 ND 46, ¶ 7, 939 N.W.2d 405 (exercising this Court's supervisory jurisdiction to determine whether a party had a right to a jury trial in a civil action).

III

[¶10] Smith argues he had a right to a jury trial under the United States Constitution. The Sixth Amendment states, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed ...." In Duncan v. Louisiana , the United States Supreme Court incorporated the Sixth Amendment's right to a jury trial in all "serious criminal cases" to the states through the Fourteenth Amendment. 391 U.S. 145, 149, 154, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Under Duncan , the right does not extend to "[c]rimes carrying possible penalties up to six months ... if they otherwise qualify as petty offenses." Id. at 159, 88 S.Ct. 1444 (holding a crime punishable by two years in prison was a serious crime and not a petty offense). In Lewis v. United States , the United States Supreme Court clarified when an offense is presumed a petty offense. 518 U.S. 322, 325-26, 116 S.Ct. 2163, 135 L.Ed.2d 590 (1996). The Court stated, "An offense carrying a maximum prison term of six months or less is presumed petty, unless the legislature has authorized additional statutory penalties so severe as to indicate that the legislature considered the offense serious." Id. at 326, 116 S.Ct. 2163.

[¶11] Here, Smith was charged with violating a Bismarck ordinance restricting the use of public property. The offense, characterized as an infraction, carries a maximum potential fine of one thousand dollars. See N.D.C.C. § 12.1-32-01(7). Since the offense carries no possibility of a prison term and has no other statutory penalty, it is a petty offense and the defendant has no right to a jury trial under the Sixth Amendment.

IV

[¶12] Smith argues he had a right to a jury trial under the North Dakota Constitution. "[W]e may provide the citizens of our state, as a matter of state constitutional law, greater protection than the safeguards guaranteed in the Federal Constitution." City of Bismarck v. Altevogt , 353 N.W.2d 760, 766 (N.D. 1984). Article I, Section 13 of the North Dakota Constitution states, "The right of trial by jury shall be secured to all, and remain inviolate." We have previously explained this constitutional provision is not absolute, stating:

This provision neither enlarges nor restricts the right to a jury trial, but merely preserves the right as it existed at the time of the adoption of our constitution. This provision preserves the right to a jury trial in all cases in which it could have been demanded as a matter of right at common law at the time of the adoption of our constitution. The right to a trial by jury as it existed under law at the time of adoption of the constitution is governed ... by the Compiled Laws of Dakota Territory (1887).

State v. $17,515.00 in Cash Money , 2003 ND 168, ¶ 6, 670 N.W.2d 826 (internal citations omitted); Smith v. Kunert , 17 N.D. 120, 115 N.W. 76, 77 (1907) ("[T]he framers of the Constitution intended by the adoption of said provision to preserve and perpetuate the right of trial by jury as it existed by law at and prior to the adoption of the Constitution."); Barry v. Truax , 13 N.D. 131, 99 N.W. 769, 771 (1904) ("The fact that the Constitution secures ‘the right of trial by jury’ by simply declaring it ... is significant ... of an intent to merely perpetuate the right as it then existed and was known to the people who gave to the Constitution their approbation."); Interest of R.Z. , 415 N.W.2d 486, 488 n.1 (N.D. 1987) ("We have said that Art. I, § 13 preserves the right to [a] jury trial in all cases in which there was a right to [a] jury trial at the time our constitution was adopted."); Altevogt , 353 N.W.2d at 764 ("[ Article I, Section 13 ] preserves the right of trial by jury as it existed at the time of the adoption of our state constitution.").

[¶13] In State v. Brown this Court examined whether a defendant had the right to a jury trial for a violation of a county animal control ordinance. 2009 ND 150, ¶ 1, 771 N.W.2d 267. A violation of the county animal control ordinance was considered an infraction. Id. at ¶ 5. We indicated that at the time the...