City of Minot v. Rudolph

2008 ND 231, 758 N.W.2d 731, 2008 N.D. LEXIS 201, 2008 WL 5221007
CourtNorth Dakota Supreme Court
DecidedDecember 16, 2008
Docket20080135
StatusPublished
Cited by4 cases

This text of 2008 ND 231 (City of Minot v. Rudolph) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Minot v. Rudolph, 2008 ND 231, 758 N.W.2d 731, 2008 N.D. LEXIS 201, 2008 WL 5221007 (N.D. 2008).

Opinions

KAPSNER, Justice.

[¶ 1] Kirby Rudolph appeals from a criminal judgment entered upon his conditional guilty plea to driving under the influence of an intoxicating liquor (“DUI”). Because we conclude that the City of Minot was permitted to contract with the Ward County State’s Attorney’s office to prosecute municipal offenses, we affirm.

I

[¶2] In April 2007, Rudolph was arrested for DUI in Minot, and the City of Minot, through a uniform complaint and summons, charged him with DUI in municipal court. After a request by Rudolph in [732]*732June 2007, the prosecution was transferred to district court. In August 2007, Rudolph moved to dismiss the complaint, arguing the prosecution was defectively instituted by the Ward County State’s Attorney’s office because the State’s Attorney’s office lacked authority to prosecute municipal offenses. Rudolph also moved to suppress evidence.

[¶ 3] After an October 2007 hearing on Rudolph’s motions to dismiss and to suppress evidence, the district court denied his motions. In denying Rudolph’s motion to dismiss, the court concluded Minot’s contract with Ward County for prosecution services was a valid exercise of Minot’s authority. Rudolph thereafter entered a conditional guilty plea to DUI, reserving his right to appeal. See N.D.R.Crim.P. 11(a)(2).

II

[¶ 4] Rudolph argues that the district court erred in denying his motion to dismiss because Minot does not have the authority or power under its home rule charter and ordinances to appoint the Ward County State’s Attorney’s office to prosecute municipal offenses. Rudolph asserts that by implementing Minot Code of Ordinances (“Minot Code”) § 2-71, which contains no specific power to appoint assistant city attorneys, Minot enacted home rule legislation superseding N.D.C.C. § 40-20-02, which provides that a city attorney may appoint assistant city attorneys. Although not introduced into evidence at the hearing on Rudolph’s motions, Rudolph does not dispute on appeal the existence of an agreement between Minot and Ward County for the county, through the staff of the Ward County State’s Attorney’s office, to provide prosecution services in Minot municipal court. Rudolph instead asserts that agreement is not valid because Minot lacked authority to appoint the Ward County State’s Attorney’s office to provide prosecutorial services.

[¶ 5] Home rule charters permit cities to enact ordinances which differ from state laws. City of Fargo v. Malme, 2007 ND 137, ¶ 10, 737 N.W.2d 390. Section 40-05.1-05, N.D.C.C., authorizes home rule cities to supersede state law and provides: “The charter and the ordinances made pursuant to the charter in such matters supersede within the territorial limits and other jurisdiction of the city any law of the state in conflict with the charter and ordinances and must be liberally construed for such purposes.” This Court has explained that the provision for a home rule city to supersede state law “applies only to those powers enumerated in N.D.C.C. § 40-05.1-06, and those powers must also be included in the charter and be implemented by ordinance.” Malme, 2007 ND 137, ¶ 11, 737 N.W.2d 390 (discussing Litten v. City of Fargo, 294 N.W.2d 628, 630 (N.D.1980)). “If these requirements are not met, a home rule city’s ‘powers are those bestowed by the legislature on all municipalities’ Malme, at ¶ 11 (quoting Haugland v. City of Bismarck, 429 N.W.2d 449, 452 (N.D.1988)) (emphasis added).

[¶ 6] Here, there is no dispute that state law authorizes a home rule city to provide for assistant city attorneys. See N.D.C.C. § 40-05.1-06(4) and (5). Under N.D.C.C. § 40-05.1-06, a home rule city:

shall, if included in the charter and implemented through ordinances, have the following powers set out in this chapter:
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4. To provide for city officers, agencies, and employees, their selection, terms, powers, duties, qualifications, and compensation. To provide for change, selection, or creation of its form and structure of government, including its governing body, executive officer, and city officers.
[733]*7335. To provide for city courts, their jurisdiction and powers over ordinance violations, duties, administration, and the selection, qualifications, and compensation of their officers; however, the right of appeal from judgment of such courts shall not be in any way affected.

[¶ 7] Minot’s Home Rule Charter grants the City of Minot similar powers. See Home Rule Charter, City of Minot, North Dakota, art. 3(d) and 3(e) (1972). Therefore, our analysis turns to the interpretation of the relevant Minot ordinances.

[¶ 8] Rudolph relies on Minot Code §§ 2-70 and 2-71 for his argument that Minot lacks authority under its home rule charter to appoint the Ward County State’s Attorney’s office to provide prose-cutorial services. Minot Code § 2-70 generally describes the various duties of the city attorney, and Minot Code § 2-71 provides for the conduct of causes and proceedings in the municipal court. Sections 40-20-01 and 40-20-02, N.D.C.C., are listed as “state law references” for these ordinances, and Minot Code § 2-70 contains language similar to N.D.C.C. § 40-20-01. Minot Code § 2-71, however, is not similar to N.D.C.C. § 40-20-02. Minot Code § 2-71 states:

The conduct of all causes and proceedings in the municipal court in which the city is a party shall be handled by the city attorney or the assistant city attorney who shall be fully responsible for all causes so tried and shall have complete authority to require assistance from other employees of the city as may be necessary in order to properly present any case before the municipal court. The city attorney shall keep himself advised of all causes and proceedings in the municipal court and shall expeditiously prosecute, try, settle, dismiss, or otherwise dispose of them in a manner and at a time to be determined in his discretion.

(Emphasis added.)

[¶ 9] Section 40-20-02, N.D.C.C., states:

With the consent and approval of the governing body of the city, the city attorney may appoint assistants to do any or all of the acts which the city attorney is required to do under this chapter, but the city attorney shall be responsible to the city for the acts of such assistants. The governing body of the city, however, may employ and pay special counsel when it deems such counsel to be necessary for the best interests of the city.

[¶ 10] Rudolph argues that because Minot Code § 2-71 is not identical to N.D.C.C. § 40-20-02 and does not specifically permit the city attorney to appoint assistants, Minot Code § 2-71 conflicts with and thus supersedes N.D.C.C. § 40-20-02. The dispositive issue is whether Minot Code § 2-71 conflicts with N.D.C.C. § 40-20-02.

[¶ 11] This Court interprets ordinances in the same manner as statutes. Hentz v. Elma Twp. Bd. of Supervisors, 2007 ND 19, ¶ 9, 727 N.W.2d 276; Mini Mart, Inc. v. City of Minot, 347 N.W.2d 131, 141 (N.D.1984). Like statutory interpretation, interpretation of an ordinance is a question of law subject to full review on appeal.

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Related

City of Fargo v. State
2024 ND 236 (North Dakota Supreme Court, 2024)
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City of Minot v. Rudolph
2008 ND 231 (North Dakota Supreme Court, 2008)

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Bluebook (online)
2008 ND 231, 758 N.W.2d 731, 2008 N.D. LEXIS 201, 2008 WL 5221007, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-minot-v-rudolph-nd-2008.