M E M O
TO:Joint Procedure Committee
RE:Rule 42, N.D.R.App.P.; Dismissal
At the last meeting, the Committee considered a request from the Supreme Court for a rule requiring the parties to notify the court when an issue becomes moot after notice of appeal is filed. The request is in response to Ashley Education Association v. Ashley Public School District, 556 N.W.2d 666 (N.D. 1996). In Ashley, neither party advised the court before oral argument the issue appealed had become moot. The appeal was subsequently dismissed.
Should Rule 42, N.D.R.App.P., be amended to require the parties to notify the court when an issue appealed becomes moot? Rule 3.3 of the Rules of Professional Conduct requires candor by a lawyer towards the tribunal. In Ashley, the court said: "In keeping with the spirit of [NDRPC 3.3], the attorneys should have immediately informed the court of the settlement and its effect on the issue of mootness resulting from it."
At the last meeting, Committee discussion included the following: 1) Some Committee members thought the parties need to notify the court of a change in circumstance that could cause the court to conclude an issue is moot, rather than notifying the court an issue is moot. Mootness is a conclusion for the court's determination. Otherwise the parties will claim they did not notify the court, because they did not think the issue was moot. 2) Members disagreed whether the rule should require notification by simply advising the court in writing, by filing a written notice, or through a motion or stipulation for dismissal. 3) Finally, the Committee noted the parties should be given a chance to explain why the appeal should or should not be dismissed as moot.
The Committee postponed discussion of Rule 42 until this meeting, so additional drafts could be prepared for the Committee's consideration. The Committee was unsure as to the exact language it wanted to approve. In the material following are alternative drafts incorporating the comments and suggestions of the Committee from the last meeting.