Lead Opinion
[¶ 1] Roland Riemers filed a petition for supervisory writ with this Court, which we granted with regard to whether Riem-ers has a right of trial by jury under the Constitution of North Dakota for a non
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 noneriminal 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,
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 ease 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,
[¶ 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. § 39-06.1-08(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 Riem-ers 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 Riem-ers 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,
[¶ 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,
[¶ 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,
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 fíne 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,
HI.
[¶ 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] We reject the City of Grand Forks’ argument that this case is directly analogous to State v. Brown,
[¶ 14] However, the City misstates the nature of traffic regulations at the time the state constitution was adopted. The Compiled Laws (1887) provided cities with the authority “[t]o regulate traffic ... upon the streets” and “the speed of horses and other animals, vehicles, cars and locomotives within the limits of the [city].” C.L. § 885(20)-(21) (1887). “[T]o carry into effect the powers granted to cities,” the Compiled Laws permitted cities to establish fines and penalties for violations, of municipal ordinances, “provided, no. fine or penalty shall exceed one hundred dollars, and no imprisonment shall exceed .three months, for one offense.” C.L. § 885(79) (1887) (emphasis in original). If a person failed to pay the fine, a city could jail.the individual “until such fine, penalty and cost shall be fully paid; provided, that no such imprisonment shall exceed three months for any one offense.” C.L. § 888 (1887) (emphasis in original). Thus, at the time the state constitution was adopted, territorial law permitted cities to comprehensively regulate traffic, establish fines for violations of traffic ordinances, and imprison persons for failing to pay the fines.
[¶ 15] In fact, the City of Grand Forks adopted traffic ordinances as early as-1887. The City prohibited persons from driving “any wagon, carriage, dray, cart or other vehicle or conveyance ... along any of the streets, avenues, alleys or public thoroughfares of this city at a faster gait, pace or speed than six miles an hour....” City Charter and Ordinance of the City of Grand Forks, Dakota § 121 (1887). The ordinance provided for a “fine of not less than five dollars nor more than fifty dollars for each offence.” Id. Grand Forks also prohibited persons from riding or driving “any horse, team, wagon, cart, sled, sleigh or other vehicle upon or over or across any sidewalk, except at the regular crossings.... ” City Charter and Ordinance of the City of Grand Forks, Dakota § 82 (1887). The City authorized a fine of. five to twenty-five dollars for violating this ordinance. Id. If the City cited a person for violating these traffic ordinances, the person had the right to a jury trial before the city justice of the peace because the maximum fines exceeded twenty dollars. See C.L. § 937 (1887).
[¶ 16] We are unpersuaded by the City’s argument that, by adopting N.D.C.C. ch. 39-06.1, the legislature created a new category of crimes and procedures. Territorial law specifically permitted cities to regulate vehicular traffic and to provide penalties for violations of traffic ordinances. As early as 1887, Grand Forks in fact regulated the speed and location of vehicular traffic, and the fines imposed for violating these ordinances were high enough to trigger the right of trial by jury under territorial law. Therefore, we decline to apply the reasoning of Brown to this case.
[¶ 17] We are also unpersuaded by the City’s argument that Riemers does not have a constitutional right to a jury trial because he was cited for violating a petty offense. The right of trial by jury under the U.S. Constitution does not apply to “petty” offenses. Fettig,
[¶ 18] Under the Grand Forks City Code, the ordinance Riemers violated is punishable by a twenty-dollar fine. Grand Forks City Code § 8-1503(7). The City Code does not directly authorize imprisonment for a violation of the ordinance. Id. Therefore, the City is likely correct that Riemers does not have a right to a jury trial under the U.S. Constitution because following too closely is a petty offense. However, “we may provide the citizens of our state, as a matter of state constitutional law, greater protection than the safeguards guaranteed in the Federal Constitution.” Altevogt,
[¶ 19] While the constitutional right of trial by jury for violations of municipal ordinances depends upon the nature of the right, at the time the state constitution was adopted, we believe a fuller historical perspective is also helpful. Twelve years before statehood, the Revised Codes of the Territory of Dakota (1877) provided the right to a jury trial before justices of the peace for all municipal ordinance violations, provided the defendant demanded a jury. R.C., Pol.C. ch. 25, § 71 (1877). By 1887, the territorial legislature limited the right of trial by jury to cases where the municipal ordinance authorized a punishment of ten or more days’ imprisonment or a fine of twenty or more dollars. C.L. § 937 (1887). Approximately seven months before statehood, the territorial legislature granted jurisdiction over municipal ordinance violations to “police justice[s],” rather than city justices of the peace. 1889 Dakota Territory Sess. Laws, ch. 33, § 5. Despite this change, territorial law provided the same right of trial by jury before police justices as it had before city justices of the peace.
[¶ 20] The first state code did not modify this right. Like territorial law, the Revised Codes of the State of North Dakota (1895) provided police magistrates with jurisdiction over municipal ordinance violations and gave defendants the right to a jury trial where the ordinance authorized ten or more days’ imprisonment or a fine of twenty or more dollars. See N.D.R.C. § 2206 (1895). Thereafter, the right of trial by jury for violations of municipal ordinances remained largely unchanged through the adoption of the North Dakota Revised Code of 1943, see N.D.R.C. § 40-1815 (1943), and the North Dakota Century Code, see N.D.C.C. § 40-18-15 (1961). In 1965, the state legislature amended N.D.C.C. ch. 40-18 to eliminate the position of police magistrate and to provide “municipal judge[s]” with exclusive jurisdiction over alleged municipal ordinance violations. See 1965 N.D. Sess. Laws ch. 286. Nevertheless, despite the change from police magistrates to municipal judges, N.D.C.C. § 40-18-15 still provided individuals with the right to jury trials for municipal ordinance violations under the same .circumstances as before. See 1965 N.D. Sess. Laws ch. 286, § 13. In 1973,
[¶ 21] Thus, for more than a decade prior to the adoption of the state constitution, territorial law provided the right of trial by jury for municipal ordinance violations where the ordinance authorized imprisonment for ten or more days or a fíne of twenty or more dollars. Although the legislature changed the courts having original jurisdiction over municipal ordinance violations, the statutory right of trial by jury for such violations remained predominantly unchanged for more than seven decades after the constitution was adopted. While the legislature amended N.D.C.C. § 40-18-15 in 1973 to eliminate the statutory authority of municipal courts to conduct jury trials, the legislature cannot eliminate a constitutionally-protected right, including the right to a jury trial. Barry,
[¶ 22] When the legislature amended N.D.C.C. § 40-18-15 in 1973, it did not intend to eliminate the right of-trial by jury for municipal ordinance violations. See Hearing on H.B. 1493 Before the Senate Judiciary Comm., 43rd N.D. Legis. Sess. (Feb. 21, 1973) (testimony of Rep. Richard Hentges, sponsor of H.B. 1493) [Hearing on H.B. 1493 ]. Thomas A. Davies, municipal court judge for the City of Fargo, originally proposed the amendment. Id. In a letter to Rep. Hentges and other legislators, Davies clearly stated the amendment did not eliminate the right of trial by jury for municipal ordinance violations because a defendant could still exercise the right on appeal to the district court:
The amendment basically eliminates the intervention of a .jury during trial in a municipal court and clearly states in the preamble that nothing in the section should be construed as an abolition of a defendant’s right to a trial by jury because in the event of an adverse verdict in a municipal court trial, a defendant may exercise his right of appeal [to the district court], and among the inherent and constitutionally guaranteed rights of the defendant upon appeal from the determination of a municipal judge is the right to a trial by jury.
January 19, 1973 letter from Davies to Rep. Hentges (included in legislative record from Hearing on H.B. 1493). As the legislature recognized in 1973, while defendants may have the inviolate right of trial by jury, that right does not include the particular court in which the right is exercised.
IV.
[¶ 23] We note the Supreme Court of South Dakota has previously considered the issue raised by this case. Prior to being admitted into the United States as separate states on November 2, 1889, North Dakota and South Dakota comprised Dakota Territory and were governed by the Compiled Laws of the Territory of Dakota (1887). In addition, both states’ constitutions provide the right of trial by jury shall “remain inviolate.” N.D. Const, art. I, § 13; S.D. Const. art. 6,
[¶ 24] In City of Brookings v. Roberts,
As can be seen from the status of territorial law at the time of adoption of our Constitution the right to a jury trial existed in all violations of city ordinances under the provisions of which imprisonment for more than ten days or .a fine of more than twenty dollars is made a part of the penalty and that became a matter of constitutional right.
Id. However, the South Dakota court’s recognition of this constitutional right was short lived.
[¶ 25] In State v. Wikle,
Even if we were to accept the analysis of legislative history offered in Roberts, we could not give literal endorsement to an 1887 law that referred to $20 as the demarcation line for jury trials. This law was written at a time when traffic laws were nonexistent and the purchasing power of a dollar was probably twenty times or more what it is today.... The rule of law that incorporated exist*641 ing statutory law into our state constitution upon its adoption should be followed in matters of legal principle, but it becomes absurd when followed literally in regard to monetary amounts.
Wikle, at 794.
[¶ 26] Although Wikle stands as South Dakota’s present law regarding the' right of trial by jury for municipal ordinance citations under that state’s constitution, we are unpersuaded by its reasoning. Despite precedent stating the constitution preserves the right of trial by jury as it existed at the time the constitution was adopted, the South Dakota Supreme Court in Wikle did not analyze the nature of the right under territorial law in 1889. In suggesting traffic laws were nonexistent at the time South Dakota adopted its constitution, the South Dakota court overlooked C.L. § 885(20)-(21) (1887). In addition, the second justification given by the court, while undoubtedly more accurate, is no less problematic. The South Dakota court stated the purchasing power of twenty dollars in 1887 “was probably twenty times or more” than the purchasing power of twenty dollars in 1980, the year of its decision. Wikle,
V.
[¶ 27] We hold the Constitution of North Dakota provides Riemers with the right of trial by jury for a noncriminal municipal traffic citation punishable by a twenty-dollar fine and remand the case back to the Grand Forks municipal court for further proceedings consistent with this opinion.
Notes
. It is the right to a jury trial that remains inviolate, not the place the jury trial occurs.
"Inviolate” has reference to the right. It is the "right” which must not be impaired.... [Inviolate] connotes no more than freedom from substantial impairment, and the Legislature has a right to make any reasonable regulation or condition respecting the enjoyment of trial by jury, provided only that the essentials of a jury trial, as known to the common law, remain unchanged.... State v. Norton,64 N.D. 675 ,255 N.W. 787 , 792 (1934) (internal quotations omitted) (emphasis added). For example, the legislature eliminated county courts in 1991. See 1991 N.D. Sess. Laws ch. 326, § 203. Since eliminating county courts, a right to jury trial formerly exercised in county court is now exercised in district court. The right, however, remains inviolate.
Dissenting Opinion
dissenting.
[¶ 29] Because the majority’s interpretation is unreasonable and inconsistent, I respectfully dissent.
I
[¶ 30] The Constitution of North Dakota preserves the right to a jury trial in cases for which it existed at statehood. Smith v. Kunert,
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) (emphasis added). Although this reflected the difference between serious and petty offenses at that time, and $20 in 1887 was the equivalent of approximately $400 today, see State v. Wikle,
[¶ 32] But if we are to take the statutory language literally, it applies only to “cases before the city justice.” This judicial official has been abolished. See 1889 Dakota Territory Sess. Laws, ch. 33, § 5 (changing the term “city justice” to “police justice”); 1965 N.D. Sess. Laws ch. 286 (abolishing the position of police magistrate and providing municipal judges with exclusive jurisdiction over municipal ordinance violations).
[¶ 33] If we take the entire sentence literally, Riemers is not entitled to relief because his case is not before a city justice. If we treat the entire provision using its modern equivalents, Riemers is not entitled to a jury trial because the maximum fine is a petty amount.
[¶ 34] Only by applying one rule (modern equivalent) to the first half of the sentence and the other rule (literal language) to the second half of the sentence does the majority reach its conclusion.
II
A
[¶ 35] The analysis of the United States Supreme Court is consistent with the conclusion Riemers is not entitled to a jury trial.
[¶ 36] The United States Supreme Court has held that the constitutional right to a jury trial in criminal prosecutions extends only to the prosecution of serious crimes, as opposed to petty offenses. See District of Columbia v. Clawans,
B
[¶ 37] The analysis of the South Dakota Supreme Court in interpreting the same
[¶ 38] South Dakota, in addition to North Dakota, was governed by the Compiled Laws of the Territory of Dakota prior to 1889. As the majority notes, “Because both states were governed by the Compiled Laws immediately before statehood, the inviolate right to a jury trial should theoretically be the same in both.”
[¶ 39] In State v. Wikle,
[¶ 40] In State v. Auen,
C
[¶ 41] The South Dakota Supreme Court also considered the Alaska Supreme Court decision which provides analysis consistent with the conclusion that Riem-ers is not entitled to a jury trial.
[¶ 42] In Baker v. City of Fairbanks,
[¶ 43] The Alaska Supreme Court held that in any “criminal prosecution,” which it defined as one in which a direct penalty
Ill
[¶ 44] I would affirm, concluding Riem-ers has no right to a jury trial.