AGO 96-F-008.

• Court: North Dakota

North Dakota Attorney General Opinions 1996. AGO 96-F-008. STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 96-F-08Date Issued: March 26, 1996Requested by: Representative Francis J. Wald- QUESTION PRESENTED - Whether there is a conflict between N.D.C.C. § 40-18-15, which requires a defendant charged with the violation of a city ordinance to waive the right to a jury trial in writing before the case may be heard by a municipal judge, and N.D.C.C. § 40-18-15.1, which provides that a municipal court case may be transferred to district court for jury trial only if the defendant has requested the transfer in writing. - ATTORNEY GENERAL'S OPINION - It is my opinion that there is a conflict between N.D.C.C. §§ 40-18-15 and 40-18-15.1 if a defendant does not either waive the right to a jury trial or request to transfer the case to district court. It is my further opinion that this conflict may be resolved in certain home rule cities by providing for a jury trial in municipal court. It is my further opinion that if a jury trial is not available in municipal court, then N.D.C.C. § 40-18-15.1 prevails because its later enactment implicitly amended N.D.C.C. § 40-18-15. - ANALYSIS - Trials in municipal courts are regulated, in part, by N.D.C.C. §§ 40-18-15 and 40-18-15.1. 40-18-15. Trial in nonjury cases rising under the ordinances of a city. An action for the violation of a city ordinance for which the right to a jury trial does not otherwise exist or in which the defendant has timely and appropriately waived a right to a jury trial in writing pursuant to rules of the supreme court, may be tried and determined by the municipal judge without the intervention of a jury. In the event of an adverse verdict in a municipal court trial, a defendant may appeal as provided in section 40-18-19, but a waiver of jury trial in the municipal court proceeding also constitutes a waiver of jury trial in the district court. 40-18-15.1. Transfer to district court - Expenses of prosecution - Division of funds and expenses between city, county, and state. A matter may be transferred to district court for trial only if within 28 days after arraignment the defendant has requested in writing to transfer the case to district court and to exercise the defendant's right to a jury trial. . . There is no conflict between these statutes if the defendant waives the right to a jury trial in writing pursuant to Rules of the Supreme Court or timely requests in writing to transfer the case to district court and to exercise the right to a jury trial because the defendant will either have a bench trial in municipal court or a jury trial in district court. N.D.C.C. § 1-02-07. A conflict between these sections may arise if a defendant who is entitled to a jury trial in municipal court neither waives the right to a jury trial nor requests a transfer to district court. In such a case, the defendant is not in district court to receive a jury trial and cannot be given a bench trial in municipal court because the right to a jury trial has not been waived. An action for the violation of a city ordinance may be tried before a municipal judge without a jury in two instances: (1) where the right to a jury trial does not otherwise exist; or (2) where the defendant has timely and appropriately waived the right to a jury trial in writing pursuant to Rules of the Supreme Court. N.D.C.C. §...