M E M O
TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 47, N.D.RCiv.P.; Jurors
Judge Gary Holum has requested that the Committee examine an inconsistency between subdivision (b) and subdivision (d) of N.D.R.Civ.P. 47. Subdivision (b) allows each "side" in a case to use peremptory challenges against prospective jurors, while subdivision (d) allows "each party" to assert peremptory challenges against prospective alternate jurors.
Subdivision (d) was part of the original 1957 version of Rule 47 and has survived unchanged (except for relabeling) since that time. Subdivision (b) was crafted by the Committee in 1978 and became effective January 1, 1979. It was derived from N.D.C.C. 28-14-05, now superseded. The specific language of subdivision (b) shows that the Committee considered the issue of how peremptory challenges should be handled when a "side" consists of more than one "party." The language of subdivision (b) is consistent with the supreme court's holding in Staiger v. Gaarder, 258 N.W.2d 641 (1977), which indicated that each side was generally only entitled to one set of peremptory challenges, even if the side consisted of more than one party.
A version of Rule 47 containing a proposed amendment to subdivision (d) that makes subdivision (d) consistent with subdivision (b) is attached. An updated Explanatory Note, containing additional information on the history of the amendments to Rule 47, is also included.