TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 21, N.D.R.App.P. 21; Writs of Mandamus and Prohibition, and Other Extraordinary Writs
During the Committee's April meeting, the procedural rules related to bringing requests for the issuance of extraordinary writs before the Supreme Court were discussed informally. A Committee member observed that the extraordinary writ rules were contained in old statutes and were confusing. The Committee member asked staff to research the extraordinary writ rules so that the Committee could discuss whether new procedural rules could be drafted to replace the statutory provisions.
The general issue of whether to supersede procedural rules enacted by the legislature has come before the Committee on previous occasions. Article VI, Section 3 of the North Dakota Constitution gives the Supreme Court the power to promulgate rules of procedure and evidence. This power includes the power to supersede, alter, or expand procedural statutes. See City of Fargo v. Ruether, 490 N.W.2d 481 (N.D. 1992); Interest of D.H.J., 401 N.W.2d 694 (N.D. 1987).
On the other hand, the legislature does have the power to enact rules of court procedure. Ruether, 490 N.W.2d at 483. The Supreme Court has the option to allow procedural statutes that do not conflict with court-promulgated procedural rules to continue in force. Traynor v. Leclerc, 1997 ND 47.
North Dakota's extraordinary writ statutes are found at N.D.C.C. chs. 32-33 (Special Proceedings), 32-33 (Writ of Certiorari), 32-34 (Writ of Mandamus), and 32-35 (Writ of Prohibition).
Section 32-33-01 gives the Supreme Court and District Courts the power to issue a Writ of Certiorari when a government officer or entity exceeds its jurisdiction and there is no appeal or plain and speedy remedy. Section 32-34-01 gives the Supreme Court and District Courts the power to issue a Writ of Mandamus to compel a government officer or entity to act. Sections 32-35-01 and 32-35-02 give the Supreme Court and District Courts the power to issue a Writ of Prohibition when a government officer or entity needs to be stopped from performing an act.
The extraordinary writ statutes date back to the original Dakota Territory Code of Civil Procedure of 1877. This code came to Dakota from California, and counterparts of the North Dakota extraordinary writ statutes remain part of the California Code of Civil Procedure at Sections 1063-1110. California has even added new sections relating to the use of extraordinary writs in challenging administrative agency decisions. See Calif. C.Civ.P. Sections 1085.5, 1094.5 and 1094.6. South Dakota also retains its extraordinary writ rules as part of its code. See S.D.C.L. Ch. 21-29, 21-30, 21-31.
In the years since the procedural rules were promulgated, the North Dakota Supreme Court has acted in cases involving writs of certiorari, mandamus and prohibition. See Manikowske v. North Dakota Workmen's Compensation Bureau, 373 N.W.2d 884 (N.D. 1985); Tooley v. Alm, 515 N.W.2d 137 (N.D. 1994); Medical Arts Clinic, P.C. v. Franciscan Initiatives, 531 N.W.2d 289 (N.D. 1995). Through its actions, the Court seems to have decided that the statutory rules of writ procedure are acceptable.
The extraordinary writ statutes are archaic and confusing. At the same time, the procedural and substantive aspects of these statutes seem inseparably intertwined. For example, N.D.C.C. 32-35-02 grants power to certain courts to issue writs of prohibition, it outlines what events must take place before a court has jurisdiction to issue a writ, and it sets out the procedure required to start the writ proceeding. It would not be a simple matter to separate out the procedural aspects of the writ statutes and draft new rules superseding the statutes.
Further, the statutes apply both to the Supreme Court and District Courts, and to Criminal and Civil actions, Consequently, if the Committee were to attempt the task of untangling these statutes and replacing them into procedural rules, revisions to the Rules of Civil Procedure, Criminal Procedure and Appellate Procedure would likely be necessary. Alternatively, drafting a new set of rules applicable to writs might be in order.
Some less complex steps, however, might possibly be taken to make the process of seeking a writ from the Supreme Court more straightforward. None of the current appellate rules specifically apply to extraordinary writs. Fed.R.App.P. 21, however, sets out a specific procedure for applying for extraordinary writs. The Committee may wish to discuss whether North Dakota should adopt the federal writ procedure, which is somewhat simpler than the statutory procedure and which could supersede the statutory procedure (as far as writs directed to the Supreme Court are concerned) if adopted.
N.D.R.App.P. 21 as it exists at present is a reserved rule. A proposed new N.D.R.App.P. 21, based on the federal rule, is attached.