ISSUANCE OF MANDATE; CONTENTS; ISSUANCE; EFFECTIVE
Date of Issuance Contents. The mandate of the supreme court shall issue 21 days after the entry of judgment unless the time is shortened or enlarged by order. A The mandate consists of a certified copy of the judgment and, a copy of the opinion of the court court's opinion, if any, and any direction as to about costs shall constitute the mandate, unless the court directs that a formal mandate issue.
(b) When Issued.
The timely filing of a petition for rehearing will stay the mandate until disposition of the petition unless otherwise ordered by the court. If the petition is denied, the mandate shall issue 7 days after entry of the order denying the petition unless the time is shortened or enlarged by order. The court's mandate must issue 21 days after the entry of judgment or 7 days after entry of an order denying a timely petition for rehearing. The court may shorten or extend the time.
(c) Effective Date. The mandate is effective when issued.
(d) Staying the Mandate.
(1) On Petition for Rehearing or Motion. The timely filing of a petition for rehearing or a motion for stay of the mandate pending an appeal or a petition to the United States Supreme Court for a writ of certiorari will stay the mandate until disposition of the petition or motion, unless the court orders otherwise.
(b) (2) Stay of Mandate Pending Appeal or Petition for Certiorari. A stay of the mandate pending an appeal or a petition to the United States Supreme Court of the United States for a writ of certiorari may be granted upon motion. The stay may not exceed 30 days unless the period is extended for cause shown. If, while the stay is in effect, the party who has been granted a stay files a copy of the petition for the writ with the supreme court clerk of the supreme court, the stay shall continue continues until final disposition by the United States Supreme Court of the United States. Upon the filing of The court must issue the mandate immediately when a copy of an order of the United States Supreme Court of the United States affirming the judgment or denying the petition for writ of certiorari the mandate shall issue immediately is filed. A bond or other security may be required as a condition to the grant or continuance of a stay of the mandate.
Rule 41 was amended, effective March 1, 2003.
This rule is derived from Fed.R.App.P. 41. A motion to the supreme court for a stay pending appeal or petition to the United States Supreme Court for writ of certiorari should be made pursuant to Rule 27.
Because the United States Supreme Court presently does not notify the state appellate courts when an appeal is taken or a petition for writ of certiorari is received, the The party obtaining the stay must file a copy of the notice of appeal or the petition for writ of certiorari with the North Dakota Supreme Court supreme court in order to continue the stay until the case is disposed of by the United States Supreme Court.
Rule 41 was amended, effective March 1, 2003. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Subdivision (c) was added, effective March 1, 2003. This amendment is intended to clarify that a mandate is effective when issued, not when received by the district court.
SOURCES: Joint Procedure Committee Minutes of April 25-26, 2002, pages 25-26; May 25-26, 1978, pages 20-21. Fed.R.App.P. 41.
SUPERSEDED: N.D.C.C. § 28-27-30.
CROSS REFERENCE: N.D.R.App.P. 27 (Motions); 28 U.S.C. § 1257 (State Courts); (Appeal; Certiorari).