TOM DAVIES: The Verdict — Courts Need to Avoid Even Hint of Undue Influence

First, congratulations to North Dakota State University and its entire football team, coaching staff and athletic director on their fifth consecutive national championship. As a University of North Dakota graduate, I am in awe of the fans of this team. They moved an entire city to another state to support their team! That is awesome by anyone’s definition.

Chris Kleieman, the head coach, is one class act. After the Bison’s big win, he gave credit to his assistant coaches, the administration, past coaches and, of course, to his players. He is a classy coach, a first-class human being and an outstanding role model. Oh, that all schools could have a coach of his stature!

I’d take up this whole blog if I were to adequately credit the athletes on this team. Good grades, good attitudes, team players … and each credits the others for his success. Top-notch, too, is the leadership of quarterback Carson Wentz, student, athlete, team player and a genuinely nice young man.

I’ve met neither Wentz nor Klieman, but I have no qualms about giving them all the credit they are due for their outstanding contributions to school, team and community.

State’s city courts need to be independent from politics

When I was reading the court sections of The Forum, I pondered how Minnesota has one big advantage over its neighbor west of the river. Though both Minnesota and North Dakota have unified systems, in North Dakota, we have one glaring weakness, in my opinion. At the state level, the attorney general and all states attorneys are elected. This is very important from the litigants’ points of view. Their decisions are not based on what the Legislature or various county commissions want but on what they believe the law to be. They are totally independent of legislative bodies.

But at the city level all across North Dakota, that independent safeguard does not exist. City attorneys are hired by, and therefore accountable to, their local political bodies. The city attorneys in turn hire their city prosecutors …

I believe that the city attorney position should be elected. This change would remove the possibility — and even the suggestion — of being influenced by their bosses, the city commissions that hire them.

Either that or make the city attorney an individual or firm giving advice to the city, and then elect the prosecutors. By electing rather them rather than having their employment determined by a political body, they would be absolutely free of undue influence from above. Do not misunderstand my point, though: For the most part, the separation does exist. But their independence should never be in question.

When I was first elected Fargo municipal judge, the procedure was to have a court (nonjury) trial; in the event of conviction, the case was appealed to District Court for retrial. Then the North Dakota Legislature, in all its wisdom, enacted Section 40-18-15.l NDCC, which provided that misdemeanor municipal court cases providing for jury trial could be transferred to State District Court for that purpose. (Municipal Courts do not have jury trials.)

So far, this seems logical … until one sees the modified wording that provides that, if the defendant waives his right to a jury once the case transfers, it should be sent back to the City Court. (After all, it’s a city violation.) Then, though, legislators added the unwise wording: “Unless the defendant and prosecuting attorney agree that the case should remain in District Court, even without a jury.”

Defense attorneys  — whose job is to get the best deal for their clients — were happy with the change in the law. It gave the term “judge shopping” new meaning. If the city judge had sentencing alternatives or anything original in an effort to deter, and the state did not, of course the defense team wants the case tried in the least restrictive court. But why would the city agree to it? The answer is to save money. City attorneys are subject to pressure from the commissions when it comes to expense.

The intent of the statute was to route the case right back to city court if the jury demand was then waived at the district level. Common sense went out the window with the plugged-in provision providing for agreement.

Score another one for the defense. And you get an A yourself if you understand what I’ve just said about the court situation.

Last but not least: Proof Artisan Distillers has opened in the former Municipal Court Building at 414 Fourth Ave. N. in Fargo. They apparently have a still in my old office, the one I occupied as municipal court judge. I’m going to volunteer my picture, since they apparently call their still “The Judge.” I’m told the food and service there are first-class, as validated by Mayor Del Rae Williams of Moorhead, Minn., who has high praise for the new establishment. I’m going to give it a try — the food part — and let my friends use the alcohol part. Amen.

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