Smith v. Isakson


FILED IN THE OFFICE OF THE CLERK OF SUPREME COURT JULY 22, 2021 STATE OF NORTH DAKOTA IN THE SUPREME COURT STATE OF NORTH DAKOTA 2021 ND 131 Eric Smith, Petitioner v. Charles R. Isakson, Municipal Judge, Bismarck and City of Bismarck, Respondents No. 20210004 Eric Smith, Petitioner v. James S. Hill, Judge of the District Court, South Central Judicial District; and City of Bismarck, Respondents No. 20210057 Petition for Writ of Supervision. PETITION FOR SUPERVISORY WRIT GRANTED. Opinion of the Court by VandeWalle, Justice. Eric N. Smith, self-represented, Superior, Wisconsin, petitioner. Julie Mees (argued), Assistant City Attorney, and Jannelle R.S. Combs (appeared), City Attorney, Bismarck, North Dakota, for respondent City of Bismarck. Smith v. Isakson Nos. 20210004 & 20210057 VandeWalle, Justice. [¶1] Eric Smith filed a petition for a writ of supervision after he was found guilty of violating a Bismarck ordinance restricting the use of public grounds without a permit. Smith argues he had a constitutional right to a jury trial for the offense. We grant the writ of supervision and remand the case back to the district court for a jury trial. I [¶2] On August 2, 2020, Smith was operating a stand selling political merchandise promoting a presidential campaign in south Bismarck. Bismarck police officers responded after an employee of a nearby restaurant and Smith himself called dispatch. Smith claimed the restaurant employee removed his political flags from the area where he set up his stand. Officers discovered Smith’s stand was located on a boulevard between the sidewalk and Washington Street. The City of Bismarck (“the City”) alleges officers informed Smith of the ordinance prohibiting commercial use of public grounds without a permit, and Smith continued to sell his merchandise. [¶3] On September 2, 2020, the City filed a summons and complaint against Smith in municipal court alleging he violated Bismarck City Ordinance § 10- 05.1-01, which restricts the commercial use of public property. At his arraignment, Smith requested the action be removed from municipal court to district court for a jury trial. Municipal Judge Severin denied the request, stating Smith had “no right to jury trial.” That same day, Smith filed a formal request to remove the case to district court for a jury trial. Smith later filed a motion requesting the removal. The municipal court denied Smith’s request, stating Smith had no right to a jury trial for an infraction. [¶4] Smith later filed numerous documents with the municipal court, including a copy of a complaint addressed to the Judicial Conduct Commission against Judge Severin. Judge Severin recused himself, and Municipal Judge Isakson was assigned to the case. On December 1, 2020, Smith filed a notice of 1 appeal of the order denying a jury trial to district court with the municipal court. Smith filed a petition for a writ of supervision with this Court on January 5, 2021. [¶5] A bench trial was held in Bismarck municipal court on January 7, 2021. Before the trial began, Judge Isakson denied all of Smith’s pre-trial …

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