Post-Judgment Criminal Appealability Under N.D.C.C. § 29-28-06(5) Turns on the Nature of the Claim, Not Its Merits

I. Introduction

City of Williston v. Bauer arose after Christopher Michael Bauer was prosecuted for disorderly conduct stemming from a March 2024 incident in Williston, North Dakota. Bauer retained counsel, proceeded to a jury trial, and was acquitted. After judgment, Bauer moved in the criminal case for reimbursement of attorney’s fees and costs incurred in his defense. The district court denied the request. Bauer appealed, also asserting the district court judge committed misconduct warranting discipline.

The appeal presented two central questions: (1) whether a post-judgment order denying reimbursement of defense fees is appealable under N.D.C.C. § 29-28-06(5) as “affecting any substantial right of the party,” and (2) whether Bauer preserved his judicial-misconduct claim for appellate review.

II. Summary of the Opinion

The Supreme Court affirmed. On the merits, it held Bauer could not recover attorney’s fees through a motion in the completed criminal case; any such recovery would need to come, if at all, through a separate civil action (e.g., malicious prosecution) if its elements are satisfied. The Court also refused to consider Bauer’s judicial-misconduct/disciplined-judge claim because it was not raised or preserved below and Bauer’s brief failed to comply with N.D.R.App.P. 28(b)(7).

Critically, the majority rejected the dissent’s threshold argument that the Court lacked appellate jurisdiction. The majority held appellate jurisdiction existed under N.D.C.C. § 29-28-06(5) because Bauer sought recovery of money (a property interest) and appealability turns on the nature of the claimed interest and the order’s effect on it—not on whether the claim ultimately succeeds.

III. Analysis

A. The New Jurisdictional Clarification: “Substantial Right” Depends on the Nature of the Claim, Not Merits

The opinion’s most consequential doctrinal contribution is jurisdictional. The majority held that in determining whether a post-judgment order is appealable under N.D.C.C. § 29-28-06(5), the Court should not conduct an “outcome determinative, on-the-merits” preview of whether the asserted entitlement exists under current law. Instead, the Court examines whether the claim—if vindicated—implicates a substantial interest (here, a monetary/property interest).

Applying that approach, the majority characterized Bauer’s request as a claim seeking recovery of “property (his money) allegedly expended in connection with the criminal action,” and analogized it to the forfeited-bond dispute deemed appealable in State v. Owens, 1997 ND 212, 570 N.W.2d 217.

B. Precedents Cited and How They Shaped the Decision

1. Appealability / “Substantial Right” Jurisprudence

• State v. Brame, 2023 ND 213, ¶ 14, 997 N.W.2d 858: Both majority and dissent referenced Brame for the general proposition that affecting “substantial rights” requires prejudice or effect on outcome. The majority, however, treated the “substantial right” inquiry as preliminary and not a merits screen for legal viability of the claim.
• State v. Owens, 1997 ND 212, 570 N.W.2d 217: The majority relied heavily on Owens to frame “substantial right” as including a property interest in money potentially wrongfully lost through judicial action. The dissent sought to distinguish Owens on the ground the State held the bond funds there, whereas Bauer’s fees were paid to counsel by private contract. The majority rejected that narrowing distinction and focused instead on the nature of the monetary stake and the post-judgment order’s effect on it.
• Teal v. Superior Ct., 336 P.3d 686, 689-90 (2014) (California): Borrowing persuasive authority, the majority adopted Teal’s framing that appealability under a similar statute turns on the nature of the claim and the court’s ruling, not on whether the claim is meritorious. The opinion used Teal to resist conflating jurisdiction with merits. The quoted discussion also referenced: People v. Mena (2012) 54 Cal.4th 146; People v. Gamache (2010) 48 Cal.4th 347; People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279; and People v. Coleman (1978) 86 Cal.App.3d 746—examples illustrating that “substantial rights” appealability can exist even where the claim later fails.
• Schaff v. Kennelly, 69 N.W.2d 777, 780 (N.D. 1955), and State v. Conry, 2020 ND 247, ¶ 9, 951 N.W.2d 226: The majority distinguished this line of authority as applying the general civil appeal statute (now reflected in N.D.C.C. § 28-27-02) and narrower appealability tests (e.g., whether the order “in effect determines the action and prevents a judgment”). By contrast, N.D.C.C. § 29-28-06(5) (criminal defendant appeals) contains a different, broader text: “order made after judgment affecting any substantial right.” The majority invoked N.D.C.C. § 1-02-07 (particular statute controls over general) to justify limiting the relevance of general-statute cases.
• State v. Peterson, 334 N.W.2d 483 (N.D. 1983): The majority expressly declined to follow Peterson insofar as it dismissed an appeal after concluding the pro se defendant had not “set out any recognized legal basis,” reasoning that approach improperly resolves appealability by assessing claim merit. The dissent defended Peterson as a proper jurisdictional decision about the insufficiency of the interest asserted under § 29-28-06(5). The special concurrence aligned with the majority’s jurisdictional posture.
• State v. Jenkins, 339 N.W.2d 567, 568 (N.D. 1983) (dissent): Cited for the principle that criminal appeals are purely statutory and jurisdictional, supporting the dissent’s insistence on strict adherence to § 29-28-06.
• Bolinske v. Sandstrom, 2022 ND 148, ¶ 11, 978 N.W.2d 72 (dissent): Used to emphasize that dismissal for lack of jurisdiction is not an adjudication on the merits—supporting the dissent’s view that jurisdictional dismissal would not prejudice Bauer’s ability to pursue civil remedies.
• Schillerstrom v. Schillerstrom, 32 N.W.2d 106, 121 (N.D. 1948) (dissent): Cited to frame “jurisdictional facts” analysis as necessary to determine whether conditions for appellate jurisdiction exist.

2. Attorney’s Fees / Civil Remedies / Inherent Authority References

• Chambers v. NASCO, Inc., 501 U.S. 32 (1991): Bauer invoked Chambers for inherent authority to sanction misconduct; the majority found it inapposite to recovering defense fees in a criminal case after acquittal (absent a recognized procedural basis in that criminal action). The special concurrence treated Chambers as illustrating that fee-shifting can occur as a sanction for bad-faith abuse of process, even under the American Rule.
• Williams v. City of Carl Junction, 480 F.3d 871 (8th Cir. 2007): Cited by Bauer to suggest continuing prosecution without probable cause can support civil liability; the majority used it to underscore that Bauer’s route is civil litigation, not a post-judgment fee motion in the criminal case.
• Kummer v. City of Fargo, 516 N.W.2d 294, 298 (N.D. 1994): The majority pointed to Kummer to emphasize that malicious prosecution is a separate tort with elements that must be met; Bauer had not established a basis to recover such damages in the criminal action itself.
• Indus. Comm'n of N.D. v. Gould, 2024 ND 32, ¶ 17, 3 N.W.3d 151 (dissent): Invoked for the American Rule: each side bears its own fees unless statute authorizes. The dissent used this to argue no “right,” hence no “substantial right,” existed to appeal.
• Cheetah Props. 1, LLC v. Panther Pressure Testers, Inc., 2016 ND 102, ¶ 19, 879 N.W.2d 423 (special concurrence), quoting H-T Enters. v. Antelope Creek Bison Ranch, 2005 ND 71, ¶ 15, 694 N.W.2d 691: The special concurrence used these civil authorities to restate the American Rule and the concept of fee shifting arising from statute/contract/rule/common law exceptions.
• Twete v. Mullin, 2020 ND 264, ¶ 6, 952 N.W.2d 91, quoting Hall v. Cole, 412 U.S. 1, 5 (1973) (special concurrence): Cited for the bad-faith exception to the American Rule.
• Schrodt v. Schrodt, 2022 ND 64, ¶ 30, 971 N.W.2d 861 (special concurrence): Cited for North Dakota recognition of inherent authority to award fees as sanctions for misconduct (in civil cases), and the concurrence’s view that such inherent authority should not be less in criminal proceedings.

3. Preservation and Appellate Briefing Rules

• Grengs v. Grengs, 2020 ND 242, ¶ 18, 951 N.W.2d 260: The majority relied on Grengs for the rule that issues raised for the first time on appeal will not be addressed.
• State v. Wiese, 2024 ND 39, ¶ 7, 4 N.W.3d 242: Used as an exemplar of N.D.R.App.P. 28(b)(7) enforcement—requiring record citations showing preservation (or a justification for review despite non-preservation). Bauer’s judicial-misconduct claim failed this threshold.

C. Legal Reasoning

1. Jurisdiction: Interpreting “Substantial Right” Under N.D.C.C. § 29-28-06(5)

The majority’s reasoning proceeds in three moves:

1. Textual/statutory structure: N.D.C.C. § 29-28-06(5) authorizes appeal from an order “made after judgment affecting any substantial right.” That language lacks the additional “determines the action and prevents a judgment” limitations present in the general civil appeal statute, N.D.C.C. § 28-27-02(1).
2. Methodology: Appealability should not depend on whether the claim is ultimately legally valid; otherwise jurisdiction collapses into merits adjudication. The majority endorsed a “nature of the claim” inquiry (with Teal v. Superior Ct. as persuasive support).
3. Application: Bauer sought $15,600—money allegedly lost due to the criminal prosecution. Like the bond in State v. Owens, the claim implicates a property interest and the denial order affects that interest with finality in the criminal case.

The dissent’s contrary view was that because there is no recognized entitlement to recoup fees after acquittal, the order cannot affect a “substantial right.” The majority rejected that approach as an improper merits screen at the jurisdictional stage and expressly declined to follow State v. Peterson to the extent it suggested otherwise.

2. Merits: No Fee Recovery Through the Criminal Case Post-Judgment Motion

Having found jurisdiction, the majority affirmed the denial of Bauer’s fee motion. The core merits holding is narrow: even if Bauer believes the prosecution was unfounded, he did not establish that his fees are recoverable in the criminal case via a post-judgment motion. The opinion points him toward civil avenues (e.g., malicious prosecution as discussed in Kummer v. City of Fargo, or other civil claims such as those referenced by the district court).

Notably, the special concurrence emphasized that courts may have authority to award attorney’s fees in criminal matters in limited circumstances (e.g., contempt remedies under N.D.C.C. § 27-10-01.1(4), regulation of proceedings via N.D.R.Crim.P. 57, or sanctions by analogy to N.D.R.Civ.P. 11 through N.D.R.Ct. 11.5, as well as inherent bad-faith authority reflected in Chambers v. NASCO, Inc.). But the majority opinion did not adopt a broad fee-shifting rule for acquitted defendants; it affirmed denial on the record presented.

3. Judicial Misconduct Claim: Preservation and Rule 28(b)(7)

The Court declined to consider Bauer’s request that the district judge be disciplined. The order did not address misconduct, Bauer did not show the issue was raised below, and his brief failed to provide record citations or grounds for unpreserved review as required by N.D.R.App.P. 28(b)(7)(B)(ii). Relying on Grengs v. Grengs and State v. Wiese, the majority treated this as a straightforward forfeiture/briefing-defect problem.

D. Impact

• Broader appellate access for post-judgment criminal orders: The decision strengthens appealability under N.D.C.C. § 29-28-06(5) by clarifying that “substantial right” analysis focuses on the nature of the claimed interest (including monetary/property claims), not the claim’s ultimate likelihood of success.
• Limits on jurisdiction-by-merits reasoning: By declining to follow State v. Peterson insofar as it treated lack of “recognized legal basis” as defeating appealability, the majority signals that appellate jurisdiction should not depend on a preliminary merits determination.
• No new rule awarding fees to acquitted defendants: On the merits, the Court did not recognize a freestanding right to attorney’s fees after acquittal in the criminal case. The practical message is that fee recovery theories (malicious prosecution, § 1983, sanctions for misconduct) ordinarily belong in separate civil litigation or in properly framed sanction proceedings, not as a routine post-acquittal motion.
• Enforcement of preservation and briefing requirements: The decision underscores that accusations of judicial misconduct are not exempt from normal appellate constraints: they must be raised in the district court and properly supported on appeal.

IV. Complex Concepts Simplified

• “American Rule”: Each party usually pays its own attorney’s fees unless a statute, contract, or recognized exception authorizes shifting fees. The dissent applied this to argue Bauer had no fee entitlement after acquittal; the concurrence noted sanction-based exceptions can exist in limited contexts.
• “Substantial right” (N.D.C.C. § 29-28-06(5)): A legally significant interest affected by a post-judgment order. The majority treated monetary/property claims as potentially substantial, making the order appealable even if the claim later fails on the merits.
• “Jurisdiction” vs. “merits”: Jurisdiction asks whether the Court has authority to hear the appeal; merits asks whether the appellant should win. The majority insisted jurisdiction should not be decided by first rejecting the legal viability of the claim.
• “Preservation”: To raise an issue on appeal, a party generally must have raised it in the trial court and made a record. The Court refused to consider Bauer’s misconduct claim because he did not show preservation and did not comply with briefing rules.
• “Inherent authority”: Courts possess certain implied powers to manage proceedings and sanction bad-faith conduct. The concurrence discussed this as a possible pathway to fee awards in exceptional circumstances, but the majority did not convert that concept into a general fee-reimbursement right for acquitted defendants.

V. Conclusion

City of Williston v. Bauer is chiefly a jurisdictional precedent: under N.D.C.C. § 29-28-06(5), appealability of post-judgment criminal orders turns on the nature of the interest affected—here, a monetary/property claim—rather than on whether the claim is ultimately recognized or likely to succeed. On the merits, the Court kept the door closed to routine post-acquittal attorney-fee reimbursement within the criminal case and directed that any compensation theory generally lies in separate civil litigation or properly invoked sanction mechanisms. Finally, the opinion reinforces strict preservation and appellate-briefing requirements for allegations as serious as judicial misconduct.