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City of Bismarck v. Fettig10/20/1999
Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Thomas J. Schneider, Judge.
AFFIRMED.
City of Bismarck v. Fettig No. 990133
VandeWalle, Chief Justice.
[ ] Kimberly Ann Fettig appealed from a district court judgment finding Fettig guilty of driving under the influence . We affirm.
I.
[ ] Kimberly Ann Fettig was charged by the City of Bismarck with Driving Under the Influence . On October 29, 1998, she appeared in Bismarck Municipal Court and pled not guilty. Prior to her plea, Fettig was given a document notifying her of her rights and including sections for her to fill out. After pleading, Fettig filled out the entire form except for a portion captioned "Jury Trial" and signed the form. The form had three options under Jury Trial:
. I waive my right to a jury trial.
. I elect to consider this matter and understand that if I fail to elect a jury trial within 28 days, the case will remain in Municipal Court for a trial before a Judge. . I elect a jury trial in district court.
Fettig went to the clerk-of-court window at the Bismarck Courthouse and asked a "lady" what the choices meant and which one she should choose. Fettig testified the lady told her to choose number two, which Fettig did.
[ ] Fettig failed to request a jury trial before the 28 days expired. Although Fettig alleges she had trouble getting counsel from her court-appointed attorney as to whether to elect a jury trial, no issue associated with the right to counsel or the ineffective assistance of counsel is raised on appeal. On December 14, 1998, more than two weeks after the 28-day period had expired, Fettig filed a motion pro se to request a jury trial. The request was denied and Fettig was found guilty in a bench trial in municipal court. Fettig appealed her case to the District Court. She moved for a jury trial and requested the court find N.D.C.C. § 40-18-15.1 (Supp. 1999) unconstitutional, claiming it denied her the right to a jury trial. The court denied the motion and Fettig was found guilty.
[ ] A brief background of the legislation at issue in this case is necessary. Cities without home rule charters are not authorized to provide for jury trials in municipal court. See City of Riverside v. Smuda, 339 N.W.2d 768, 770 (N.D. 1983). Cities are creatures of statute and possess only those powers and authorities granted by statute or necessarily implied from an express statutory grant. Ebach v. Ralston, 469 N.W.2d 801, 804 (N.D. 1991). The rule of strict construction applies in defining municipal powers. Id. Since the legislature in 1973 repealed the statute that granted cities the power to hold jury trials in municipal court, there is no existing authority granting such power. See 1973 N.D. Sess. Laws ch. 327.
[ ] A case in municipal court must be transferred to district court to obtain a jury trial. N.D.C.C. § 40-18-15.1. We previously held N.D.C.C. § 40-18-15 guarantees a criminal defendant the right to a trial by jury on appeal from a municipal court decision if the defendant has not yet waived the right to jury trial. City of Bismarck v. Altevogt, 353 N.W.2d 760, 764 (N.D. 1984). However, this right is uncertain after the amendment of N.D.C.C. § 40-18-15.1. Prior to amendment in 1995, § 40-18-15.1 read, in part: "If within twenty-eight days after arraignment a defendant has not waived in writing the defendant's right to a jury trial in a case where it otherwise exists, the matter must be transferred to the district court for trial." 1991 N.D. Sess. Laws ch. 326 § 159. The legislature amended § 40-18-15.1, to now provide, in part: "A
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