M E M O
TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 8.10, N.D.R.Ct., Writs
The Committee discussed Rule 8.10 at its January meeting. This is a "rule in progress" which eventually will set out procedure in writ actions, thereby superseding various archaic statutes. In January, the Committee worked on integrating material from N.D.C.C. ch. 32-32, the preliminary special proceedings chapter, into Rule 8.10.
The proposed additions to Rule 8.10 this meeting are limited because of the quantity of new business items that need the Committee's attention before the summer recess. The additions are based on material from N.D.C.C. ch. 32-33, the writ of certiorari chapter, and on language the Committee devised for the new N.D.R.App.P. 21.
N.D.C.C. § 32-33-01 provides: "A writ of certiorari shall be granted by the supreme court or district court when an officer, board, tribunal, or inferior court has exceeded the jurisdiction of such officer, board, tribunal, or inferior court, as the case may be, and there is no appeal, nor, in the judgment of the court, any other plain, speedy, and adequate remedy, and also when, in the judgment of the court, it is deemed necessary to prevent miscarriage of justice."
This section seems to be substantive, defining the writ of certiorari and designating the courts from which this writ may issue. Staff has integrated the definition set out in this section into the proposed rule and referred to the substantive statute in the explanatory note.
N.D.C.C. § 32-33-02 provides: "The application must be made on affidavit by the party beneficially interested, and the court may require a notice of the application to be given to the adverse party, or may grant an order to show cause why it should not be allowed, or may grant the writ without notice."
This section seems to be wholly procedural because it refers to the method a party should use to begin the process of obtaining a writ. The process described, however, seems somewhat archaic. If the Committee decides it is appropriate, the language of this statute could be integrated into the eventual rule.
Instead of using the language from the statute, the proposed addition to the draft rule uses language approved by the Committee for the new N.D.R.App.P. 21. The Rule 21 procedure seems more up to date and appropriate than the statutory procedure. It also seems to cover the same basic elements as the statutory procedure.