City of Bismarck v. Daniel J. McCormick

Summary

The North Dakota Supreme Court held that a district court order granting a post-trial judgment of acquittal based on the court's legal conclusion about judicial notice of a municipal ordinance was appealable as an order quashing an information. The Court further held that the defendant's post-verdict motion was timely under North Dakota Rule of Criminal Procedure 29(c) and that the district court could freely take judicial notice of the city ordinance as a legislative fact. The order was reversed and the matter remanded.

Holdings

1. The order granting judgment of acquittal was properly treated as an order quashing an information, rather than as a judgment of acquittal, because it rested on a legal conclusion and did not resolve factual elements of the charged offense. The City therefore had a statutory right to appeal.
2. McCormick's motion for judgment of acquittal was timely because it was filed three days after the guilty verdict, within the fourteen-day period allowed by N.D.R.Crim.P. 29(c). The district court did not abuse its discretion in finding the motion timely.
3. A district court may freely take judicial notice of a city ordinance when a municipal-court matter is transferred to district court for a jury trial. N.D.C.C. § 40-18-15.1 does not prohibit judicial notice merely because it lacks the express judicial-notice language contained in N.D.C.C. § 40-18-19.
4. Keyes v. Amundson did not control the issue because its statement that a municipal ordinance must be introduced into evidence or stipulated to was dictum, not necessary to the decision in that case.

Questions Presented

1. Whether the district court's post-trial order granting judgment of acquittal was an appealable order quashing an information or a nonappealable judgment of acquittal.
2. Whether McCormick's post-trial motion for judgment of acquittal was timely under the North Dakota Rules of Criminal Procedure.
3. Whether a district court may take judicial notice of a city ordinance when a municipal-court matter is transferred to district court for a jury trial under N.D.C.C. § 40-18-15.1.
4. Whether the prior statements in Keyes v. Amundson concerning judicial notice of municipal ordinances were controlling precedent.

Disposition

reversed_and_remanded