TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 3, N.D.R.App.P., Appeal as of Right -- How Taken
In a letter, dated March 10, 2005, attorney Nevin Van de Streek suggests that some modification be made to Rule 3 to enlighten those involved in appeals about the interpretation of the rule's paragraph (d)(4), which reads: "The title of the action is not to be changed as a consequence of the appeal." Mr. Van de Streek's letter, which discusses the background of this provision, is attached.
An amended version of Rule 3 containing a proposed addition to Rule 3's explanatory note is attached. The proposed new language (at lines 52-57) refers back to Rule 1 and explains that, upon an appeal, parties are expected to indicate their status as "appellant" or "appellee" in the title.
In a letter, dated November 12, 2004, Supreme Court Clerk Penny Miller suggested that the Joint Procedure Committee look into the problem of the Child Support Enforcement Unit failing to list itself as a party when it inserts itself into a child support action. According to the letter, which is attached, the Supreme Court would prefer to eliminate this problem at the district court level and suggested that one of the civil rules be amended to accomplish this.
The civil rules, however, already require the State to be listed as a party when the Child Support Enforcement Unit gets involved in an action. N.D.C.C. § 14-09-09.26 specifies that the State is a real party in interest in the sort of actions that would involve the Child Support Enforcement Unit. N.D.R.Civ.P. 17(a) states that "[e]very action must be prosecuted in the name of the real party in interest." Consequently, the State must be listed as a party in the actions specified in N.D.C.C. § 14-09-09.26, i.e., child support enforcement actions.
It seems unlikely that the Committee could improve on the direct and forceful language of N.D.R.Civ.P. 17(a), even though this language is apparently being ignored in child support enforcement cases. A proposed change to Rule 3 would allow the State to be added as a named party when it was omitted at the district court level. The language change is at lines 33-35 of the attached Rule 3 proposal.