RULE 3.3 CHANGE OF JUDGE
FOR POSTJUDGMENT MOTION OR PROCEEDING
(a) Demand for Change of Judge
(1) Any party to a civil or criminal action or proceeding pending in district court may obtain a change of the judge before whom the trial or proceeding is to be held by filing a written demand for change of judge with the district court clerk.
(2) The demand is invalid unless it is filed with the district court clerk not later than ten days after the occurrence of the earliest of any one of the following events:
(A) The date of the notice of assignment or reassignment of a judge for trial of the case;
(B) The date of notice that a trial has been scheduled; or
(C) The date of service of any ex parte order in the case signed by the judge against whom the demand is filed.
(3) Any party who has been added, voluntarily or involuntarily, to the action or proceeding after the date of any occurrence in N.D.R.Ct. 3.3(a)(2) has the right to file a demand for change of judge within ten days after any remaining event occurs or, if all of those events have already occurred, within ten days after that party has been added.
(4) No demand for a change of judge may be made after the judge sought to be disqualified has ruled upon any matter pertaining to the action or proceeding in which the demanding party was heard or had an opportunity to be heard. Any proceeding to modify an order for alimony, property division, or child support under N.D.C.C. § 14-05-24 or an order for child custody under N.D.C.C. § 14-05-22 must be considered a proceeding separate from the original action and the fact that the judge sought to be disqualified made any ruling in the original action does not bar a demand for a change of judge.
(5) The demand for change of judge must state that it is filed in good faith and not for the purposes of delay. It must indicate the nature of the action or proceeding, designate the judge sought to be disqualified, and certify that the judge has not ruled upon any matter pertaining to the action or proceeding in which the moving party was heard or had an opportunity to be heard.
(b) Court Response to Demand
(1) Upon filing of a demand for change of judge, the clerk shall immediately send a copy of the demand for a change of judge to the presiding judge of the judicial district and the judge sought to be disqualified.
(2) Upon receipt of a copy of a demand for change of judge, the judge sought to be disqualified has no authority or discretion to determine the timeliness or validity of the demand and shall proceed no further or take any action in the action or proceeding and is thereafter disqualified from doing any further act in the cause unless the demand is invalidated by the presiding judge. The judge sought to be disqualified shall promptly submit to the presiding judge any comments the judge may have regarding the demand. If the presiding judge invalidates the demand because it was not timely filed or for other reasons, the judge sought to be disqualified shall resume jurisdiction in the case and hear and determine the case to conclusion.
(3) Upon receipt of a timely filed demand for a change of judge from the district court clerk, the presiding judge of the judicial district in which the demand is filed shall promptly designate another judge to act in place of the judge disqualified.
(4) The judge designated, after receiving such notice of the assignment from the presiding judge, shall promptly proceed with the hearing or trial, first giving to the parties or their attorneys reasonable notice of the date of the hearing or trial.
(5) If a demand for a change of judge has been made and another judge assigned by the presiding judge of the judicial district, the presiding judge may decline to grant another demand for a change of judge made by a party whose interests in the matter are not adverse to those of the party whose demand was granted. A judge assigned by the presiding judge in response to a demand for change of judge is not disqualified upon a subsequent demand for change of judge unless and until the subsequent demand is granted and notice is given to him by the presiding judge. A subsequent demand for a change of judge may be made only within five days after receiving notice of the assignment of a judge by the presiding judge in response to a previous demand.
(c) Change of Judge After Appeal. If upon an appeal from a judgment or order the supreme court orders a new trial or reverses or modifies the judgment or order as to any or all of the parties in a manner such that further proceedings in the trial court are necessary, any party may file a demand for change of judge under N.D.R.Ct. 3.3(a) within ten days after the supreme court issues its mandate, regardless of whether another demand was filed prior to the time the appeal was taken.
(d) Postjudgment Motion or Proceeding. Any postjudgment motion or proceeding must be heard by the same judge before whom the underlying matter was heard, subject to the following exceptions:
(1) A different judge my hear a postjudgment motion or proceeding if for any reason the original judge is unable to act.
(2) A different judge may hear a postjudgment motion or proceeding as provided in
N.D.C.C. § 29-15-21(3) N.D.R.Ct. 3.3(a)(4) and (c).
(3) In nonfelony cases, a different judge may amend or enforce a condition in a judgment or order entered on a verdict or plea of guilty.
(4) In child support cases, a different judge may amend or enforce a child support order or judgment.
Rule 3.3 was amended, effective March 1, 2003; ________________________.
Rule 3.3 was adopted, effective March 1, 2000.
The rule allows a judge to consolidate proceedings venued in the same county when a misdemeanor violates the conditions of more than one judgment.
Subdivisions (a) and (b) were adopted, effective _____________________, to incorporate N.D.C.C. 29-15-21's demand for change of judge procedure into the court rules, thereby superseding the statute.
Subdivision (c) was adopted, effective _______________________________. It is based on Wis. Stat. 801.58(7) and expands the circumstances under which a demand for change of judge can be made to post-appeal proceedings.
Rule 3.3 Subdivision (d) was amended, effective March 1, 2003, to allow judges to amend or enforce child support orders or judgments regardless of whether the particular judge rendered the original order or judgment.
SOURCES: Joint Procedure Committee Minutes of ______________________, pages_________; April 25-26, 2002, pages 5-8; January 24-25, 2002, pages 14-16; September 24-25, 1998, pages 5-6; April 30-May 1, 1998, pages 5-6.
Superseded: N.D.C.C. §§ 27-05-27,29-15-21.