Docket Watch: Smith v. Isakson
The right to a trial by jury has been a crucial right since the founding of the United States, but not all cases involve a right to a trial by jury. In Smith v. Isakson, the North Dakota Supreme Court exercised discretion to address a request for a superintending writ over lower court proceedings.[1] The case involved Eric Smith of Superior, Wisconsin. Smith was selling merchandise supporting then U.S. Presidential candidate Donald Trump from a stand in the City of Bismarck.[2] A nearby McDonald’s restaurant employee removed Smith’s Trump political flags from where he had displayed them and called police dispatch.[3] Smith also called dispatch concerning the removal of his flags.[4] Officers arrived and as Smith had his merchandise stand on a public boulevard, officers informed him that he could not use the area for commercial purposes without a permit.[5] Smith continued selling his merchandise and the City of Bismarck sued Smith for violating a local ordinance barring the use of public property for commercial purposes without a permit.[6]
The Bismarck City Ordinance stated that, “[e]xcept as authorized by this Chapter, no person, firm, or entity shall sell, offer, or expose for sale any food, goods, wares or merchandise, upon any public street, alley, sidewalk, public right-of-way or other public grounds owned or controlled by the City.”[7] Smith, acting pro se, immediately demanded removal of the case from Municipal Court to the District Court for a trial by jury.[8] Citing Riemers v. Eslinger, [9] the North Dakota Constitution, and the Sixth Amendment,[10] Smith asserted that he had a right to a jury trial and to counsel at no expense to himself. Smith asserted in a handwritten note written across the cover of the Riemers v. Eslinger decision, which he filed as an exhibit in Bismarck Municipal Court, that he was entitled to a jury trial in any case carrying a possible fine of more than $20.00.[11] Interestingly, although Smith was not a lawyer, he argued that original intent[12] supported his assertion of a right to trial by jury. Smith also contended that the City of Bismarck targeted him for supporting a political candidate, which he asserted was a violation of his right to political free speech.[13]
The City of Bismarck opposed a jury trial, removal to District Court, and provision of counsel at no expense. The city distinguished Riemers by arguing that Smith faced a complaint charging an infraction, which the city contended was a new category of lesser criminal offense for which no right to a trial by jury existed at the time of the adoption of the state constitution.[14] The city based its argument primarily on State v. Brown in which the North Dakota Supreme Court determined that Brown was not entitled to more than a bench trial for an infraction because the substantive elements infraction charged had only became law in 1973.[15]
The Bismarck Municipal Court Judge[16] denied the request for removal to District Court to allow for a jury trial and provision of counsel at no expense to the Defendant. The Municipal Judge wrote in an email to Smith that, “I am denying your request for removal of an infraction to district court for a jury trial. I do not believe you are allowed a jury trial for an infraction under current ND law.”[17] A formal order followed on October 20, 2020, and Smith appealed to the District Court. Smith also requested a writ of supervision from the North Dakota Supreme Court asking the Court to uphold precedent by removing his case to District Court for a jury trial.[18] Smith also sought a ruling that the Bismarck City Ordinance was unconstitutionally vague while raising the prospect that he was being targeted for his political speech.[19]
The North Dakota Supreme Court accepted Smith’s petition for a writ of supervision. In ruling on the writ, the Supreme Court’s decision turned on the original understanding of the right to trial by jury under the Constitution of the State of North Dakota. The Court began by addressing the federal constitutional right and calling the right to trial by jury “the most important of constitutional rights.”[20] It then concluded that as the infraction was a petty offense there was no right to a jury trial under the Sixth Amendment to the federal constitution.[21] However, the state constitution was a different story. TheCourt stated that: “. . . 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.”[22]
Turning to the original understanding, the Compiled Laws of the Territory of Dakota §885 (20) (1887) permitted cities to “regulate . . . sales upon the streets, sidewalks and public places.”[23] Local governments could also “license, tax, regulate, suppress and prohibit hawkers, peddlers, pawnbrokers, keepers of ordinaries, theatricals and other exhibitions, shows and amusements, ticket scalpers and employment agencies, and to revoke such license at pleasure.”[24] This preserved the right to a jury trial, even for infractions that were a lower level of offense not carrying a danger of imprisonment. The Court emphasized that this is where the difference between Riemers v. Eslinger and State v. Brown can be found. In Riemers, Roland Riemers faced a non-criminal traffic fine of $20. His right to a jury trial was preserved because the Compiled Laws of the Territory of Dakota permitted localities to regulate traffic and lay fines in excess of $20.[25] In Brown, the infraction involved did not exist at the time of the adoption of the state constitution and, thus, that infraction carried no right to a jury trial.[26]
Currently, Smith’s case is on remand to the District Court and is pending further proceedings. After remand from the N.D. Supreme Court, the City of Bismarck moved to have the District Court find that Smith was a vexatious litigant, which would have hampered his further attempts at filing with the Court, but the District Court denied the motion.[27] Proceedings in the District Court were stayed on November 16, 2021, pending decision on a subsequent attempt by Smith to secure a superintending writ from the Supreme Court, which was then denied on November 24, 2021.[28] All mail to Smith has been returned to the District Court as undeliverable and a jury trial set for December 3, 2021 was cancelled.[29] There are no other proceedings of record disposing of the case.
[1] Smith v. Isakson, 2021 ND 131, 962 N.W.2d 594 (N.D. 2021).
[2] City of Bismarck v. Eric Smith, 08-2021-CR-00394, Doc. No. 9 (Bismarck Mun. Ct. 2020).
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Bismarck City Ordinance §10-05.1-01.
[8] City of Bismarck v. Eric Smith, 08-2021-CR-00394, Doc. No. 5 (Bismarck Mun. Ct. 2020).
[9] Riemers v. Eslinger, 2010 ND 76, ¶3, 781 N.W.2d 632 (N.D. 2010).
[10] Smith later rescinded his citation to the Sixth Amendment in agreeing that no jury trial for petty offenses exists under the Sixth Amendment. Smith then maintained that his right to a jury trial was, “. . . solely under state and not federal law.” City of Bismarck v. Eric Smith, 08-2021-CR-00394, Doc. No. 21 (Bismarck Mun. Ct. 2020).
[11] City of Bismarck v. Eric Smith, 08-2021-CR-00394, Doc. No. 5 & 6 (Bismarck Mun. Ct. 2020).
[12] Although Smith referred to original intent in his filing, original understanding is a more apt term to describe how the Supreme Court resolved the case. In North Dakota, the intent of a legislative body is determined by the express language used and that express language is interpreted according to how the words were understood when given their plain and ordinary meaning.
[13] City of Bismarck v. Eric Smith, 08-2021-CR-00394, Doc. No. 37 (Bismarck Mun. Ct. 2020).
[14] Delegates to the North Dakota Constitutional Convention were elected by popular election on the blizzardy day of May 14, 1889, with the convention convening on July 4, 1889. The convention adopted a final constitutional draft on August 17, 1889, and Governor Mellette called an election for October 1, 1889, to approve or reject it. The citizens of North Dakota approved the Constitution and on November 2, 1889, President Benjamin Harrison declared that all conditions set by Congress for the admission of North Dakota to the Union had been satisfied and that the admission of the new state was complete.
[15] State v. Brown, 2009 ND 150, 171 N.W.2d 267 (N.D. 2009).
[16] Initially, Judge William Severin presided, but after denying the request for a jury trial, Smith filed a complaint with the Judicial Conduct Commission and Judge Severin recused himself. Judge Isakson was then designated to consider further proceedings.
[17] City of Bismarck v. Eric Smith, 08-2021-CR-00394, Doc. No. 12 (Bismarck Mun. Ct. 2020).
[18] City of Bismarck v. Eric Smith, 08-2021-CR-00394, Doc. No. 50 (Bismarck Mun. Ct. 2020).
[19] Id.
[20] Isakson, 2021 ND 131, ¶9, 962 N.W.2d at 597.
[21] Isakson, 2021 ND 131, ¶11, 962 N.W.2d at 598.
[22] Isakson, 2021 ND 131, ¶12, 962 N.W.2d at 598.
[23] Isakson, 2021 ND 131, ¶17, 962 N.W.2d at 600.
[24] Compiled Laws of the Territory of Dakota §885 (30) (1887).
[25] Isakson, 2021 ND 131, ¶15, 962 N.W.2d at 599.
[26] Isakson, 2021 ND 131, ¶14, 962 N.W.2d at 598-99.
[27] City of Bismarck v. Eric Smith, 08-2021-CR-00394, Doc. No. 110 (Bismarck Mun. Ct. 2020). Specifically, the City of Bismark entitled its motion, “Motion to Declare Eric Smith to be a Vexatious Litigant.” City of Bismarck v. Eric Smith, 08-2021-CR-00394, Doc. No. 84 (Bismarck Mun. Ct. 2020).
[28] City of Bismarck v. Eric Smith, 08-2021-CR-00394, Doc. No. 117 (Bismarck Mun. Ct. 2020) and Smith v. Hill et al., 20210321, Doc. No. 4 (N.D. 2021).
[29] City of Bismarck v. Eric Smith, 08-2021-CR-00394, Doc. No. 119 & 120 (Bismarck Mun. Ct. 2020).
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