## Facts

- Bismarck, North Dakota, had an ordinance prohibiting the sale of merchandise on public grounds without a permit; a violation was classified as an “infraction.”
- On August 2, 2020, Eric Smith operated a stand selling political campaign merchandise on a boulevard between the sidewalk and Washington Street in south Bismarck.
- Police responded after calls to dispatch involving a dispute between Smith and a nearby restaurant employee; officers learned Smith was selling merchandise from the boulevard area.
- The City alleged officers told Smith about the ordinance barring commercial use of public grounds without a permit and that Smith continued selling.
- On September 2, 2020, the City filed a summons and complaint in Bismarck municipal court charging Smith with violating Bismarck City Ordinance § 10-05.1-01 (an infraction).
- At arraignment, Smith requested removal to district court to obtain a jury trial; the municipal court denied the request, stating there was no jury-trial right for an infraction.
- Smith renewed the request in writing and later moved to remove the case; the municipal court again denied removal on the same ground.
- The original municipal judge later recused; Municipal Judge Charles R. Isakson was assigned.
- A bench trial occurred on January 7, 2021; the municipal court found Smith guilty and imposed a $100 fine.
- Smith sought review in district court and also filed petitions in the North Dakota Supreme Court for a writ of supervision challenging the denial of a jury trial and related municipal-court rulings; the Supreme Court consolidated the supervisory proceedings.

## Issues

1. Whether the North Dakota Constitution guarantees a jury trial for a municipal-ordinance violation labeled an “infraction” when historically comparable ordinance prosecutions at the time of statehood carried a jury-trial right.

## Decision

- The North Dakota Supreme Court granted Smith’s petitions for a writ of supervision.
- The Court held Smith was entitled to a jury trial under the North Dakota Constitution for the charged ordinance violation.
- The Court remanded the matter to the district court for a jury trial.

## Legal Principles

- The North Dakota Constitution preserves the right to a jury trial as it existed when the constitution was adopted; the scope of the right is determined by historical practice at statehood.
- A court deciding whether a jury trial is constitutionally required looks to the nature of the offense and the historical treatment of comparable proceedings, including the seriousness of potential sanctions at the time of adoption.
- A present-day legislative or municipal designation of an offense as an “infraction,” by itself, does not eliminate a jury-trial right that historically attached to comparable prosecutions.
- The North Dakota Supreme Court may exercise supervisory jurisdiction to correct a denial of a constitutional jury-trial right and to provide direction to lower courts when ordinary remedies are inadequate.

## Conclusion

Because the state constitution preserves the jury-trial right as it existed at statehood and historically comparable prosecutions for selling merchandise on public grounds without a permit were jury-triable, the Supreme Court granted supervisory relief and ordered the case proceed in district court with a jury trial despite the City’s “infraction” label and the $100 fine imposed after the municipal bench trial.


Smith v. Isakson, 962 N.W.2d 594 (2021)