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City of Bismarck v. Fettig10/20/1999
ether it is before a Judge or jury.
[ ] An Attorney General's opinion dealt with this statutory conflict. Although Attorney General's opinions are not binding on this Court, they are entitled to respect, and this Court will follow them if they are persuasive. United Hosp. v. D'Annunzio, 514 N.W.2d 681, 685 (N.D. 1994). The Attorney General's opinion determined if a jury trial is not available in municipal court, then § 40-18-15.1 prevails since it is a later enactment and it implicitly amends § 40-18-15. N.D.Op.Att'y.Gen. 08, p. 37 (1996). The Attorney General determined the two sections could not be harmonized or construed together. N.D.Op.Att'y.Gen. 08, p. 36 (1996). The opinion, citing section 1-02-07, N.D.C.C., said "` f an irreconcilable conflict exists, the latest enactment will control or will be regarded as an exception to or as a qualification of the prior statute.'" N.D.Op.Att'y.Gen. 08, p. 36 (1996) (quoting City of Fargo, 260 N.W.2d at 338). The Attorney General found the latter statute [section 40-18-15.1] controls since it cannot be seen as an exception or qualification of the prior statute [section 40-18-15]. N.D.Op.Att'y.Gen. 08, p. 36-37 (1996).
[ ] The Attorney General's reasoning is persuasive. If an irreconcilable conflict exists, the latest enactment will control or will be regarded as an exception to or as a qualification of the other. N.D.C.C. § 1-02-07; see Bartels v. City of Williston, 276 N.W.2d 113, 121 (N.D. 1979). Since the statutes squarely contradict each other and § 40-18-15.1 is the later enactment, it prevails over § 40-18-15.
[ ] We conclude § 40-18-15.1 implicitly supersedes § 40-18-15 to the extent the latter guarantees defendants the right to jury trial on appeal from municipal court. Cities with home rule ordinances may provide for a jury trial in municipal court. Otherwise, a municipal court defendant must request transfer to district court within 28 days of arraignment to get a jury trial. N.D.C.C. § 40-18-15.1.
[ ] We affirm the conviction of Fettig.
[ ] Gerald W. VandeWalle, C.J.
Carol Ronning Kapsner
Mary Muehlen Maring
William A. Neumann
Dale V. Sandstrom
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