TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 39.1, N.D.R.Civ.P., Change in Location of a Hearing, Proceeding, or Trial; Change of Venue
Rule 39.1 is a new rule the Committee developed in 1998-2000. It was adopted by the Supreme Court effective March 1, 2002. The impetus for the rule was the legislature's adoption of several venue statutes that did not make sense to the Committee. The rule superseded these statutes.
Recently, a situation developed that highlighted a possible shortcoming in the rule. A Northeast Judicial District judge was assigned by the Supreme Court to a South Central Judicial District case after all the SCJD judges were disqualified. The new judge granted a change of venue motion, changing venue to the Northeast Central Judicial District.
Paragraph (b)(2) of the rule states, in pertinent part: "If venue is changed to a county in a different judicial district, a new judge must be assigned to the action." Under this language, a second judge switch would have been required in the case above due to venue change. This change was not desired by the Supreme Court or the parties, but the language of the rule seemed to give no option but to change the judge.
A proposed amendment to Rule 39.1 is attached. The amendment gives the supreme court discretion to retain the judge when venue in a case is shifted to a different judicial district.
If the Committee accepts the proposed amendment, it may wish to discuss whether the change would be consistent with N.D.C.C. 27-05-22, which generally forbids judges from acting in matters outside their district. Article VI, Section 8 of the North Dakota Constitution gives district courts original jurisdiction of all causes. In Rudnick v. City of Jamestown, 463 N.W.2d 632 (N.D. 1990), the Court confirmed that district courts derive their jurisdiction from the North Dakota Constitution, not statute. Therefore, a district judge would not lose jurisdiction to act by following a case to another district.
On the other hand, in Thompson v. Peterson, 546 N.W.2d 856 (N.D. 1996), the Court indicated that it thought that N.D.C.C. 27-05-22's prohibition on district judges keeping cases after a change of venue to another district was appropriate. The factual situation described above, however, shows that in some cases it may be appropriate for a district judge to follow a case to another district. Indeed, in this particular case the Court relied on the section of 27-05-22 which allows a district's presiding judge to request the assistance of an out-of-district judge--the Court obtained such a request and retained the judge who had been assigned. The proposed amendment would give the Supreme Court a simpler option when it desires to order retention of a judge when venue changes to a different district.