Smith v. Isakson, 2021 ND 131

On Aug. 2, 2020, Eric Smith sold political merchandise on a boulevard in Bismarck and was cited under Bismarck City Ordinance § 10-05.1-01 (commercial use of public grounds without a permit).
The City charged the violation as an infraction (maximum $1,000 fine); Smith sought removal to district court and a jury trial; municipal judges denied the jury request and refused transfer.
Smith proceeded to challenge the denial, lost a municipal bench trial, and filed petitions for writs of supervision with the North Dakota Supreme Court; district court stayed proceedings pending this Court’s decision.
Smith argued he had a Sixth Amendment right to a jury trial; the City argued the offense was a petty offense not entitling him to a federal jury trial and that infractions do not carry a state constitutional jury right in this context.
The Court held the Sixth Amendment did not require a jury because the offense carried no possibility of incarceration, but concluded Article I, § 13 of the North Dakota Constitution preserved a historical jury right for this type of municipal sales regulation.
Because Smith timely requested transfer in writing, N.D.C.C. § 40-18-15.1 requires trial in district court before a jury; the Supreme Court granted supervisory relief and remanded for a jury trial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Smith had a federal Sixth Amendment jury right	Smith: Sixth Amendment applies to state prosecutions for serious offenses	City: Offense is a petty infraction (no imprisonment) so no federal jury right	No federal jury right (petty offense; no incarceration)
Whether Article I, § 13 of the ND Constitution preserves a jury right	Smith: State constitution can provide greater protection; historical law preserved jury trials for municipal sales/regulation offenses	City: Infractions are a modern statutory category not entitled to the historic jury right (Brown)	Yes — historical territorial law preserved a jury right for municipal sales/regulation offenses punishable as they were in 1889
Whether the case must be transferred to district court for a jury trial	Smith: Timely written request for transfer and jury trial was made within statutory period	City: Municipal adjudication appropriate; infractions tried in municipal court	Transfer required under N.D.C.C. § 40-18-15.1 because Smith timely requested transfer in writing
Whether the Supreme Court should exercise supervisory jurisdiction now	Smith: Extraordinary, vital constitutional right justifies immediate review	City: Issue could be raised on appeal to district court	Court exercised discretion to grant writ to resolve important constitutional issue and promote judicial economy

Duncan v. Louisiana, 391 U.S. 145 (1968) (incorporated Sixth Amendment jury right to the states for "serious" crimes)
Lewis v. United States, 518 U.S. 322 (1996) (offenses with maximum prison terms ≤ six months are presumptively "petty")
State v. Brown, 2009 ND 150, 771 N.W.2d 267 (explained infractions are a post-1889 statutory category and generally do not carry ND constitutional jury rights)
Riemers v. Eslinger, 2010 ND 76, 781 N.W.2d 632 (preserved jury trial where territorial law at adoption permitted municipal ordinance penalties triggering jury rights)
Holbach v. City of Minot, 2012 ND 117, 817 N.W.2d 340 (standards for issuing supervisory writs)
Smithberg v. Jacobson, 2020 ND 46, 939 N.W.2d 405 (exercising supervisory jurisdiction to resolve a jury-trial right question)