TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 47.1, N.D.R.App.P.; Certification of Questions of Law By District Court
Chapter 32-24, N.D.C.C., authorizes district courts to certify questions of law to the Supreme Court. Rule 47.1, with an initial reference to ch. 32-24, also authorizes district courts to certify questions of law to the Supreme Court.
The current rule restates some, but not all, of the relevant statutory provisions. Some of the statutory provisions not included or referenced in the rule are referred to in the explanatory note. For example, the note (second paragraph) advises that certification is discretionary with the district court, and that the Supreme Court may refuse to answer a question, citing § 32-24-02.
The rule specifies the contents of a certification order, which is not addressed directly in the statutes, and the form of a question. Beyond this, the rule restates certain provisions of the statutes in a more understandable manner.
The proposed amendments to Rule 47.1 combine the relevant provisions of N.D.C.C. ch. 32-24 with the rule. With this change, chapter 32-24 (N.D.C.C. §§ 32-24-01, 32-24-02, 32-24-03 and 32-24-04) is superseded.
In addition, the amendments generally track the form and style of the 1998 amendments to the federal appellate rules--the language and organization of the rule are amended to make the rule more easily understood and to make style and terminology consistent throughout the rules. Much of the language is taken from Rule 47.
Rule 47.1 (a)(1) provides that the district court may certify a question on the motion of any party to a civil or a criminal proceeding. However, § 32-24-01 provides that a question may be certified "on the application of the attorney for the plaintiff or defendant in a civil case, and upon the application of the attorneys for the plaintiff and defendant in a criminal cause . . . ." In other words, either party may request the court to certify a question in a civil action, but both parties must join in the request in a criminal action. The Committee may want to discuss whether to continue this distinction in the rule.
An additional matter the Committee may wish to address is the serving and filing of briefs, referenced in Rule 47.1 (b)(3) and Rule 47.1 (c)(2). The Committee may wish to address whether to designate specific time guidelines for service and filing for purposes of uniformity and consistency.
Fees and costs are addressed in Rule 47.1 (c)(3). Rule 39, N.D.R.App.P., provides that fees and costs are to be shared among the parties unless either the district court or the Supreme Court, upon motion of a party, orders otherwise. Section 32-24-03, N.D.C.C., provides that, in a criminal action, the record is to be certified at the expense of the state or a county if the defendant is indigent.