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Riemers v. Eslinger

May 11, 2010

ROLAND C. RIEMERS, PETITIONER
v.
HENRY J. ESLINGER, GRAND FORKS MUNICIPAL JUDGE AND CITY OF GRAND FORKS, RESPONDENTS



The opinion of the court was delivered by: Kapsner, Justice

Petition for Supervisory Writ.

SUPERVISORY WRIT GRANTED.

[¶1] Roland Riemers filed a petition for supervisory writ with this Court, which we granted with regard to whether Riemers has a right of trial by jury under the Constitution of North Dakota for a noncriminal municipal traffic citation punishable by a twenty-dollar fine. We hold the state constitution provides Riemers with the right to a jury trial for the citation and remand the case back to the Grand Forks municipal court for further proceedings consistent with this opinion.

I.

[¶2] On July 22, 2009, Riemers was involved in a motor vehicle accident in Grand Forks. Following an investigation of the accident, a Grand Forks police officer cited Riemers for following too closely in violation of the Grand Forks City Code. Under the City Code's penalty schedule for traffic offenses, Riemers was subject to a twenty-dollar fine for the citation. See Grand Forks City Code § 8-1503(7). On July 31, 2009, Riemers pled not guilty to the citation in Grand Forks municipal court. Riemers also moved the municipal court to transfer the case to district court under N.D.C.C. § 40-18-15.1 to allow for a jury trial. The municipal court denied Riemers' motion. Riemers then filed a petition for supervisory writ with this Court. We granted the petition with regard to whether Riemers has a constitutional right to a jury trial for a noncriminal municipal traffic citation punishable by a twenty-dollar fine.

II.

[¶3] The brief and relatively simple history of this case masks the significant questions it raises regarding the right of trial by jury in our state, which we long ago described as "the most important of constitutional rights." Barry v. Truax, 13 N.D. 131, 99 N.W. 769, 770 (1904).

A.

[¶4] Under N.D.C.C. § 40-18-01, municipal judges have jurisdiction "to hear, try, and determine offenses against the ordinances of the city." When a city cites a person for violating a municipal ordinance, the procedure for contesting the citation depends upon its nature.

[¶5] A municipal judge may try cases regarding municipal ordinance citations without a jury if "the right to a jury trial does not otherwise exist" or "the defendant has timely and appropriately waived a right to a jury trial in writing . . . ." N.D.C.C. § 40-18-15. Thus, if the right of trial by jury does not exist for a particular municipal ordinance violation, the municipal judge has the authority to conduct a bench trial. However, defendants in "criminal prosecutions" have the right to trial "by an impartial jury." N.D.C.C. § 29-01-06. Therefore, a defendant has the right to a jury trial if cited for violating a criminal municipal ordinance. To enforce this right, the defendant must make a written request to transfer the case from municipal court to district court. N.D.C.C. § 40-18-15.1. The case must be transferred because N.D.C.C. ch. 40-18 does not provide municipal courts with the authority to hold jury trials. City of Bismarck v. Fettig, 1999 ND 193, ¶ 4, 601 N.W.2d 247 (citing 1973 N.D. Sess. Laws ch. 327 (amending N.D.C.C. § 40-18-15 to eliminate language providing for jury trials in municipal courts)). If a criminal defendant complies with the statutory requirements regarding transfer, the district court holds a jury trial. If the defendant does not enforce the right to a jury trial for violating a criminal municipal ordinance, the municipal judge may conduct a bench trial. N.D.C.C. § 40-18-15. Where the municipal judge conducts a bench trial, the defendant may appeal an adverse judgment to district court "for trial anew." N.D.C.C. § 40-18-19. While the defendant may appeal the municipal judge's decision to district court, "waiver of jury trial in the municipal court proceeding also constitutes a waiver of jury trial in the district court." N.D.C.C. § 40-18-15.

[¶6] The vast majority of traffic offenses are "noncriminal." See N.D.C.C. § 39-06.1-02. Therefore, N.D.C.C. § 29-01-06 does not provide the right of trial by jury for most traffic citations. Nevertheless, where a driver is cited for violating a municipal traffic ordinance, the driver "may request a hearing on the issue of commission of the violation charged." N.D.C.C. § 39-06.1-03(1). The hearing may take place before a municipal judge. See N.D.C.C. §§ 39-06.1-02, 39-06.1-03(7). If the municipal judge finds the driver violated the municipal traffic ordinance, the driver "may . . . appeal that finding to the district court for trial anew." N.D.C.C. § 39-06.1-03(5)(a). Chapter 39-06.1, N.D.C.C., does not provide the right of trial by jury for noncriminal municipal traffic citations in either municipal court or district court.

[¶7] Riemers was cited for following too closely in violation of the Grand Forks City Code. This offense is considered "noncriminal" under N.D.C.C. § 39-06.1-02. Chapter 39-06.1, N.D.C.C., provides Riemers could challenge the citation by requesting a hearing and, if the municipal judge found he violated the ordinance, appeal the judge's decision to district court. Chapter 39-06.1, N.D.C.C., does not provide Riemers with the right of trial by jury before either court. Riemers did request a hearing regarding his traffic citation. Rather than contest the citation before the municipal judge, Riemers requested the municipal court transfer the matter to district court under N.D.C.C. § 40-18-15.1 to allow for a jury trial. The municipal court refused to transfer the case. Riemers then filed a petition for supervisory writ, arguing he has a right to a jury trial under the state constitution. Therefore, we must determine whether Riemers has a constitutional right to a jury trial when contesting a noncriminal municipal traffic citation punishable by a twenty-dollar fine.

B.

[¶8] The Constitution of North Dakota provides: "The right of trial by jury shall be secured to all, and remain inviolate." N.D. Const. art. I, § 13 (formerly § 7). This provision deprives the legislature and courts of all authority "to destroy by legislation or by judicial construction any of the substantial elements of the right of jury trial . . . ." Barry, 13 N.D. 131, 99 N.W. at 770. "[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." Smith v. Kunert, 17 N.D. 120, 115 N.W. 76, 77 (1907). See also Barry, at 771 ("The fact that the Constitution secures 'the right of trial by jury' by simply declaring it . . . is significant . . . of an intent [by the drafters] to merely perpetuate the right as it then existed and was known to the people who gave to the Constitution their approbation.").

[¶9] As a result, "the right of trial by jury which is secured by the Constitution is the right of trial by jury with which the people who adopted it were familiar . . . as defined by the statutes which existed prior to and at the time of the adoption of the Constitution." Barry, 99 N.W. at 772. See also Interest of R.Z., 415 N.W.2d 486, 488 n.1 (N.D. 1987) ("We have said that [a]rt. I, § 13 preserves the right to jury trial in all cases in which there was a right to jury trial at the time our constitution was adopted."); City of Bismarck v. Altevogt, 353 N.W.2d 760, 764 (N.D. 1984) (stating art. I, § 13 "preserves the right of trial by jury as it existed at the time of the adoption of our state constitution"); Smith, 17 N.D. 120, 115 N.W. at 78 (providing courts must construe the constitutional right of trial by jury "in the light of the existing practice as established by law at the time of [the state constitution's] adoption . . . ."). Therefore, in interpreting the application of art. I, § 13 to violations of municipal ordinances, we examine the right of trial by jury as of 1889, the year our state adopted its constitution. Fettig, 1999 ND 193, ¶ 7, 601 N.W.2d 247.

[¶10] The Compiled Laws of the Territory of Dakota (1887), "the law of the territory just prior to and at the time that North Dakota became a state and adopted its constitution in 1889, defines the right to trial by jury as it existed under such law prior to and at the time of the adoption of [a]rt. I, § 13." Altevogt, 353 N.W.2d at 764. Under the Compiled Laws, the "city justice of the peace" had exclusive jurisdiction over municipal ordinance violations. C.L. § 925 (1887). The Compiled Laws provided the right of trial by jury before city justices of the peace under certain, enumerated circumstances:

Cases before the city justice arising under the city ordinances shall be tried and determined by the justice without the intervention of a jury except in cases where under the provisions of the ordinances of the city imprisonment for a longer period than ten days is made a part of the penalty, or the maximum fine shall be twenty dollars or over, and the defendant shall demand a trial by jury before the commencement of such trial . . . .

C.L. § 937 (1887). If a defendant was found guilty of violating a municipal ordinance in a case before a city justice of the peace, the Compiled Laws authorized an appeal to district court. C.L. § 933 (1887). When the defendant appealed the decision to district court, the Compiled Laws required the district court try the action "anew." C.L. § 6131 (1887). On appeal, the Compiled Laws provided the district court would determine issues of law, while "[i]ssues of fact must be tried by a jury." C.L. §§ 7320, 7372 (1887).

[¶11] Seven months before the adoption of the state constitution, the territorial legislature amended the Compiled Laws to provide "police justice[s]" with jurisdiction over municipal ordinance violations rather than city justices of the peace. 1889 Dakota Territory Sess. Laws, ch. 33, § 5; Fettig, 1999 ND 193, ¶ 10, 601 N.W.2d 247. However, the territorial legislature did not alter the right of trial by jury for municipal ordinance violations, nor the right to appeal an adverse decision to the district court. Therefore, at the time the state constitution was adopted, the Compiled Laws provided police justices with original jurisdiction over municipal ordinance violations and recognized the right of trial by jury where the ordinance authorized imprisonment for ten or more days or a fine of twenty or more dollars. If found guilty of violating the municipal ordinance, the defendant could appeal the conviction to the district court where the right of trial by jury also existed. "Against this background, the framers of our constitution guaranteed that the right to a jury trial 'shall . . . remain inviolate.'" Fettig, at ¶ 11 (citing N.D. Const. of 1889, art. I, § 7) (emphasis added).

III.

[¶12] We hold Riemers has the constitutional right to a jury trial for the alleged violation of a noncriminal municipal traffic ordinance that is punishable by a twenty-dollar fine. The Constitution of North Dakota preserves the right of trial by jury "as defined by the statutes which existed prior to and at the time of . . . adoption." Barry, 13 N.D. 131, 99 N.W. at 772. See also R.Z., 415 N.W.2d at 488 n.1; Altevogt, 353 N.W.2d at 764; and Smith, 17 N.D. 120, 115 N.W. at 77. At the time the state constitution was adopted, territorial law provided the right to a jury trial for alleged violations of municipal ordinances where the ordinance authorized a punishment of imprisonment for ten or more days or a fine of twenty or more dollars. In this case, Riemers is accused of violating a Grand Forks municipal ordinance for which the City Code provides a twenty-dollar fine. Therefore, because he is accused of violating a municipal ordinance for which the fine is twenty or more dollars, we conclude Riemers has the right to a jury trial under the constitutional guarantee that the right of trial by jury shall remain inviolate.*fn1

[¶13] We reject the City of Grand Forks' argument that this case is directly analogous to State v. Brown, 2009 ND 150, 771 N.W.2d 267. In Brown, the district court held a bench trial regarding a citation issued to Brown for violating a Cass County animal control ordinance. Id. at ¶ 44. Like Riemers, Brown argued the state constitution provided her the right to a jury trial because the ordinance authorized a fifty-dollar fine and the constitutional right of trial by jury applied to violations of municipal ordinances where the ordinance authorized a fine of twenty or more dollars. Id. at ¶ 46. This Court held Brown did not have the right to a jury trial because the animal control ordinance created a criminal infraction, whereas criminal law only recognized misdemeanors and felonies at the time the state constitution was adopted. Id. at ¶¶ 49-50. This Court stated the legislature intended for infractions to constitute "an entirely new category of lesser criminal offenses with its own unique procedural requirements." Id. at ¶ 50. Because the legislature created a new category of crimes and procedures which did not exist at the time the state constitution was adopted, we held "a person charged with violating an infraction-level offense, including a county ordinance creating an infraction-level offense, which carries no possibility of imprisonment, is not entitled to a jury trial under N.D. Const. art. I, § 13." Id. at ¶ 52. See also In re Anderson, 2007 ND 50, ¶ 19, 730 N.W.2d 570 ("The involuntary civil commitment provisions of N.D.C.C. ch. 25-03.3 create a statutory proceeding that was unknown at the time our constitution was adopted in 1889. Consequently, there is no right under article I, § 13, to a jury trial in proceedings under this chapter."); State v. $17,515.00 in Cash Money, 2003 ND 168, ¶ 10, 670 N.W.2d 826 ("It is axiomatic that, because there was no available action in this state for forfeiture of proceeds from illegal drug transactions at the time the constitution was adopted, there was no right to a jury trial in such an action."); In re R.Y., 189 N.W.2d 644, 651 (N.D. 1971) (holding the state constitution does not provide juveniles with the ...


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