TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 62, N.D.R.Civ.P., Stay of Proceedings to Enforce a Judgment; Rule 8, N.D.R.App.P., Stay or Injunction Pending Appeal
The Committee heard testimony on proposed appellate bond caps for Rule 62 and Rule 8 at its January meeting. The Committee discussed the proposal, proposed additional amendments of its own, and voted 10-7 to send the proposed amended rules on the Supreme Court. This being a margin of less than two-thirds, Rule 62 and Rule 8 are back before the Committee for further consideration. The rules, with the proposed amendments, are attached.
Also attached are letters from the N.D. Farm Bureau and the N.D. Petroleum Marketers Association supporting the idea of an appellate bond cap.
One of the issues raised during the Committee's January discussion of Rule 62 and Rule 8 was the fact that the proposed bond cap level approved by the Committee ($50 million) would not provide much protection to a typical North Dakota business. After reviewing the testimony of Keith Teel, staff solicited further recommendations regarding variable bond caps. Mr. John Olson submitted a letter, attached, outlining a proposed variable bond cap. Also attached is the Texas appellate bond statute, which imposes a variable cap.
Staff has prepared alternate drafts of Rule 62 and Rule 8 containing variable caps based on the defendant's net worth. If the Committee decides a variable cap of this sort would be desirable, it will need to determine what percentage level of net worth to base the cap upon. Texas adopted a cap based on 50% of net worth; Mr. Olson proposes a cap based on 10% of net worth. For discussion purposes, the draft rules contain a 25% cap base.