Appeal Forms

Guide to an Appeal to the North Dakota Supreme Court

Table of Contents

Introduction

Glossary of Terms

What is the North Dakota Supreme Court?

Where is the North Dakota Supreme Court located?

Is there Internet access to the North Dakota Supreme Court?

What orders may be appealed to the Supreme Court?

Do I need a lawyer?

When should I file my appeal?

How do I file a notice of appeal?

What does it cost to file a notice of appeal?

Do I need to order transcripts?

What is the record?

How do I file a brief with the Supreme Court?

The Appellant's Brief and Appendix

The Appellee's Brief and Appendix

The Reply Brief

When will oral argument be held?

When will the Supreme Court decide my case?

What can I do if I lose on appeal?

Introduction

This guide is intended primarily to assist someone unable or unwilling to hire an attorney with the basic procedural steps that must be followed when filing an appeal in the North Dakota Supreme Court. This guide is not legal advice and should not be cited as legal authority. The information in this guide is not intended to replace the North Dakota Rules of Appellate Procedure (N.D.R.App.P.), but should be used in conjunction with the Rules. Nor is it a substitute for hiring an attorney.

This guide reflects the North Dakota Rules of Appellate Procedure ("N.D.R.App.P.") in effect as of October 1, 2014. The Rules are always subject to change. Therefore, you should consult the Rules for any changes. You may call the Supreme Court Clerk's office if you have a specific question about how to file your papers with the Court. Although staff will try to help answer your procedural questions, you must remember that employees of the Supreme Court are not permitted to give legal advice or make specific recommendations to you on how you should proceed with an appeal or respond to an appeal.

Glossary of Terms

Appeal - A review by the North Dakota Supreme Court of what happened in the district court to determine whether any mistakes occurred and, if so, whether the decision of the district court should be reversed.

Appellant - A party who appeals from a decision of the district court.

Appellee - A party against whom an appeal is taken and who responds to the appeal.

Brief - A written statement explaining the arguments of a party to an appeal.

Cross-appeal - An appeal filed by the appellee, which is heard at the same time as the appellant's appeal. A cross-appeal usually requests the Supreme Court to correct a mistake made by the district court and seeks a remedy that is different from the remedy requested by the appellant.

Docket - The list of documents in a case that have been filed in the court and the date they were filed (also known as a Register of Actions).

Filing - A document has been filed with the Supreme Court when the Clerk has actually received it, has determined that the document sufficiently complies with the rules, and has stamped the date on the document. If briefs, transcripts, appendices, and petitions for rehearing comply with the rules, they are considered filed the date the document is mailed.

In forma pauperis ("in form or nature of a pauper–a person without money or property") - The term used when a party to an appeal is indigent and has certified to the Court that he or she cannot pay the filing fee.

Interlocutory appeal - An appeal filed before the district court enters its final order disposing of all issues in the case.

Interlocutory order - An order addressing some intermediate matter and issued before the district court has reached its final decision in the case.

Jurisdiction - A court's power to decide a case or issue an order.

Appellate jurisdiction - The North Dakota Supreme Court's authority to review and revise a lower court's decision.

Original jurisdiction - The North Dakota Supreme Court's authority to hear and decide a matter before any other court has reviewed it.

Motion - A request that the Court make a specific ruling or order, usually required to be in writing.

North Dakota Century Code - A collection of all general and permanent laws enacted by the state legislature or by the people through initiated measures and which may be referred to as the "Century Code," the "Code," or "N.D.C.C."

North Dakota Rules of Appellate Procedure - Rules adopted by the Supreme Court that control the procedures in the Supreme Court and which may be referred to as the "appellate rules" or "N.D.R.App.P."

Notice of appeal - The document filed in the district court notifying the Court that a matter is being appealed.

Oral argument - The time a party orally presents its position and responds to the Supreme Court's questions about an appeal.

Record - All the original documents and exhibits filed with the district (or trial) court.

Self-represented - Refers to a person who does not retain a lawyer and appears on his or her own behalf before the Court. This person is sometimes referred to as "pro se," "pro per" or "in propria persona."

Service - Delivery of a copy of a document to be filed in the Court to the other party (or parties) to the case.

Transcript - A word-for-word typed record of what was said during a hearing in the district court or administrative agency.

Writ - A highly unusual remedy within the original jurisdiction of the Supreme Court. Although there are several different types of writs, they usually are issued to prohibit a district court from exceeding its jurisdiction or to compel a district court to perform a duty it has no choice but to perform. In general, a writ may be issued only when the party requesting the writ does not have any other legal remedy. It is not a substitute for an appeal.

What is the North Dakota Supreme Court?

The North Dakota Supreme Court is the highest court in the State, consisting of five Justices, including a Chief Justice. The North Dakota Supreme Court is primarily a court of appeals. An appeal is not a new trial. Parties in an appeal before the Supreme Court may not offer any evidence that was not presented to the district court. The Court decides appeals strictly on the basis of the record of the proceedings in the district court, the written briefs filed by the parties, and argument of those briefs.

The North Dakota Supreme Court also has original jurisdiction to issue writs. There are several types of writs. Writs are highly unusual remedies and are rarely issued by the Court. An application for a writ does not replace a timely-filed appeal. The filing requirements for supervisory writs are governed by Rule 21 of the North Dakota Rules of Appellate Procedure. Writs are not discussed further in this guide.

References: N.D.C.C. §§ 32-22; 32-33; 32-34; and 32-35.

Where is the North Dakota Supreme Court located?

The Supreme Court is located in the State Capitol in Bismarck, North Dakota. The Court's regular business hours are 8:00 a.m. to 5:00 p.m., Monday through Friday. Any questions about an appeal should be directed by letter, telephone call, or email to the Clerk's office as follows:

Clerk of Court
Supreme Court of North Dakota
600 East Boulevard Avenue
Bismarck, ND 58505-0530
(701) 328-2221
(701) 328-4480 (fax)
supclerkofcourt@ndcourts.gov

All communication with the Supreme Court must be conducted through the Clerk's Office. No party is permitted to contact an individual Justice regarding any case.

Is there Internet access to the North Dakota Supreme Court?

Information about the North Dakota Supreme Court may be accessed through the Internet: http://www.ndcourts.gov. The Court's website contains timely news items about the Court and other legal organizations, and provides links to the Court's calendar, opinions and notices, and case docket information, including links to briefs, court rules, profiles of the Justices, and information about the Court's standing committees.

What orders may be appealed to the Supreme Court?

In civil cases, the North Dakota Supreme Court has jurisdiction to hear appeals from final orders or judgments issued by the district courts. A judgment is final if all of the issues in a case have been decided. An order is not final (is "interlocutory") if it decides only some of the issues or claims but not all of them. In civil cases, the district court may enter an interlocutory order as a final judgment for purposes of appeal if the order meets the criteria of Rule 54(b) of the North Dakota Rules of Civil Procedure. A final order or judgment in a civil case normally must be entered before a notice of appeal is filed.

In criminal cases, the Supreme Court has jurisdiction to hear direct appeals from the district court. In direct criminal appeals, the district court's final order or judgment is entered – for purposes of appeal – the day the order or judgment is entered in the court's criminal docket. However, if the notice of appeal is filed before entry of the final order or judgment, the appeal will not be ready for the Supreme Court to review until the sentencing has taken place and the final order or judgment has been entered.

In post-conviction appeals, as with civil appeals, notice of entry of the district court's final order or judgment must be served.

References: N.D.C.C. §§ 28-27-01; 28-27-02; 29-28-06; 29-28-07; 29-32.1-14; N.D.R.Civ.P. 54(b); N.D.R.App.P. 4.

Do I need a lawyer?

Individuals may appear before the North Dakota Supreme Court without a lawyer. A legal entity such as a corporation is required to have a lawyer represent it.

Although an individual is not required to have a lawyer, most people find that having a lawyer on appeal is helpful to them. Persons wanting the assistance of a lawyer may be able to obtain legal assistance by calling 1-866-450-9579 or 701-255-1406 at the Lawyer Referral and Information Service, a program offered through the State Bar Association of North Dakota to refer a caller to a lawyer who practices in a specific area of law. This service may be able to provide a lawyer at a reduced fee for those who cannot otherwise afford a lawyer. You might also wish to contact a Legal Services Office in your area.

Those who go ahead without the assistance of a lawyer are still expected to review the appellate rules and reasonably comply with them. Various legal resources may be helpful in writing a brief: the North Dakota Rules of Appellate Procedure, the North Dakota Century Code (containing all North Dakota statutes), and the Northwestern Reporter (containing published opinions of the North Dakota Supreme Court and other selected states). These resources are available online, at many public libraries, and at the University of North Dakota School of Law Thormodsgard Library.

When should I file my appeal?

You must file a timely (within the specified time) notice of appeal with the clerk of the supreme court in order for the North Dakota Supreme Court to consider your appeal.

In civil cases, the notice of appeal must be received by the clerk of the supreme court within 60 days after service of the notice of entry of the judgment or order being appealed. The notice of appeal in civil cases must include a preliminary statement of issues. The filing fee must be paid before a notice of appeal will be filed. In no event will a filing fee be accepted more than 14 days after a notice of appeal is received by the clerk of the supreme court.

In a criminal case, the notice of appeal must be received by the clerk of the supreme court 30 days after entry of the judgment or order being appealed on the criminal docket.

All days are counted when computing the appeal period. The last day of the period is counted unless it is a day the district court clerk's office is closed for the weekend or a legal holiday. In that case, the period extends to the next day the clerk's office is open. You are responsible for knowing when the district court enters its final order and for computing the appeal period. Supreme Court personnel are not permitted to tell you when your notice of appeal is due or compute your appeal period for you.

The appeal period may be extended by the supreme court. However, a motion must be filed that includes good cause showing for an extension.

If a notice of appeal is filed by mail, it is not considered to be "filed" until the day the clerk of supreme court actually receives it.

In civil cases, any party may file a "cross-appeal" within 14 days after the filing of the first timely notice of appeal or within 60 days after service of the notice of entry of the final judgment or order from which the appeal is taken, whichever is later.

References: N.D.R.App.P. 4 and 26.

How do I file a notice of appeal?

The notice of appeal must be filed, electronically or by hand delivery or mail, with the clerk of the supreme court within the time mentioned above. If filed electronically, it should be emailed to supclerkofcourt@ndcourts.gov.

A notice of appeal or cross-appeal should contain the following information:

  • the name of the party or parties taking the appeal;

  • the date of the judgment or order sought to be reviewed;

  • the court, the judge, and the number of the case in the district court;

  • the name of the court to which the appeal is taken; and

  • in an appeal from a civil case or a post-conviction relief proceeding, a preliminary statement of issues
  • A sample of a Notice of Appeal can be found at this link.

    References: N.D.R.App.P. 3 and 4.

    What does it cost to file a notice of appeal?

    A nonrefundable $125 filing fee must be paid at the time a notice of appeal is filed in a civil matter. The filing fee must be paid before a notice of appeal will be filed. In no event will a filing fee be accepted more than 14 days after a notice of appeal is recvieved by the clerk of the supreme court.

    If you believe that you are indigent and are unable to pay the filing fee, you may file a Petition to Waive Filing Fee on Appeal and Affidavit. The personal information you provide in the petition will help the Court decide whether you will be excused from paying the filing fee. A copy of the petition, as with any document you file with the Supreme Court, must be served on the opposing party's lawyer or the opposing party directly if the opposing party is not represented by a lawyer.

    The Supreme Court may waive the $125 filing fee. The waiver of this fee, however, does not waive any other fees or costs associated with your appeal. (For instance, there may be costs if you order the transcript from the district court proceedings.) None of these fees or costs, which are imposed by the district court, can be waived by the Supreme Court. A sample Petition to Waive Filing Fee on Appeal and Affidavit is located at the following link. It must be completed in full, including the issues you intend to raise on appeal.

    If you mistakenly file a notice of appeal from an unappealable ("interlocutory") order or your appeal is dismissed for failure to comply with the rules, the filing fee you paid is not refunded.

    References: N.D.C.C. § 27-03-05; N.D.R.App.P. 12.

    Do I need to order transcripts?

    If you intend to refer in your brief to testimony or argument that was heard in the district court, you must include a request for a transcript with your notice of appeal. Your request must include the date or dates of the hearings that need to be transcribed. If you do not order a transcript, the Supreme Court will decide your appeal without it and will reject any argument that you try to make relying on facts that would have been in the transcript had you ordered one.

    To request the transcript, you must file your request with the clerk of the supreme court at the same time you file your notice of appeal. The party requesting the transcript is responsible for making arrangements to pay for the transcript. Any questions regarding a transcript, including questions regarding transcript costs or accuracy of the transcript, must be directed to the district court. The Supreme Court may review disputes over a transcript as part of the appeal.

    A sample Order for Transcript is located at this link.

    References: N.D.R.App.P. 10.

    What is the record?

    The record, consisting of all the original papers and exhibits filed with the district court, is maintained electronically in the Odyssey case management system. The district court will certify the images to the Supreme Court Clerk's office after the notice of appeal is filed and any transcripts are prepared. In some matters there are no physical record items, so the record is in an electronic form.

    The record will include the transcript, if any was ordered; the complaint and other pleadings; pretrial orders; motions; any written orders, opinions, memoranda, or judgments by the district court; docket entries; jury instructions; and all documents and exhibits admitted into evidence by the district court. Also, any evidence that you presented to the district court (or administrative agency) that was not admitted into evidence is considered to be part of the record on appeal for determining the admissibility of the evidence. Material that you obtained from the other parties during the discovery process is not considered part of the record on appeal unless it was presented to the district court (or administrative agency) for its consideration and docketed by the district court clerk.

    Remember, it is your responsibility to make sure that the record contains all of the important material necessary for the Supreme Court to decide your appeal. You may not raise an argument to the Supreme Court unless you raised the argument in the district court and the argument is supported by the record.

    References: N.D.R.App.P. 10 and 11.

    How do I file a brief with the Supreme Court?

    Appellate Rules 28, 30, 31, and 32 explain the form, contents, and time for filing a brief and appendix on appeal.

    If you are self-represented, the Court will relax some of the rules regarding the form and content of your brief. Even if you are self-represented, however, the Court will strictly apply the following rules:

  • You must sign an original copy of your brief and provide the original and seven copies of any brief and appendix. If you are electronically filing under North Dakota Rules of Appellate Procedure 25, a $25 surcharge is required, and you do not need to provide the copies.
  • You must not exceed the word or page limits set in Rule 32(a)(7).
  • You must file your brief by the deadline figured under the rules. If you need an extension of time to file your brief, you may file a motion for an extension, but you should do so prior to the date your brief is due.
  • You must be sure your brief is clearly legible, regardless of whether it is typed or handwritten.
  • The Appellant's Brief and Appendix

    The Appellant's brief is a written document explaining why you are appealing and what you think is wrong with the decision of the district court. The opening brief is limited to 32 pages if a monospaced typeface, e.g., Courier New, is used, or 8,000 words if a proportionally spaced typeface, e.g., Arial or Times New Roman, is used. The pages of the appendix are not included in this limitation.

    The Clerk of the Supreme Court has no obligation to tell the parties the due dates of briefs or other filings. However, various correspondence from the Clerk's office will be sent out during the appeal process that may refer to rules or due dates. If necessary, you may request an extension of a due date by filing a motion for an extension of time with the Court under Rules 26(b) and 27. Extensions of time are not automatically granted, and good cause must be shown to receive an extension. The fact that someone is self-represented may not alone be good cause for an extension.

    All briefs must be concise, presented with accuracy, logically arranged with proper headings, and free from burdensome, irrelevant, or immaterial matters. It is the most helpful to the Court in understanding your issues on appeal if you divide your opening brief into the following sections:

  • A table of contents;
  • A table of citations, alphabetically listing all legal authorities cited in your brief;
  • A statement of issues presented for review;
  • The nature of the proceedings, which describes the district court proceedings, including the judgment to be reviewed;
  • A statement of the facts relevant to issues presented for review, including only facts that were presented to the district court and are supported by the record;
  • An argument, which divides each of the issues you want to raise into separate subsections with discussion on each; and
  • A conclusion, which briefly tells the Court what remedy you are seeking.
  • Although the Court will be flexible about the form and content of your brief if you are representing yourself, you still should present your brief in as organized a fashion as you possibly can. Of the requirements imposed by N.D.R.App.P. 28, three are essential for the Supreme Court's review. At a minimum, a brief of a self-represented litigant must contain a statement of the issues presented for review; a statement of the facts and–where those facts are disputed references to the district court record supporting the appellant's statement of the facts; and the appellant's legal argument, including the authorities on which the appellant relies.

    The appendix to your opening brief must be a separately bound document. The appendix may include only the district court docket entries and whatever parts of the record you would like the Court to read when it considers the issues you raise on appeal. At the very least, your appendix must include copies of the docket entries of the district court, the notice of appeal, the judgment or order being appealed, and any memorandum or decision of the district court that you have issues about. Documents not contained in the district court record must not be included in the appendix and, if included, may cause sanctions to be imposed.

    If you do not file electronically, you must file an original signed brief with appendix, plus seven copies of the brief and appendix. The number of copies is never waived. All papers, including the brief and appendix, must be served on the lawyer for the other side, or the party, if they are not represented.

    You may refer to paragraph nine of the opinion in State v. Noack, 2007 ND 82, 732 N.W.2d 389, which sets out the minimum requirements for a self-represented party's brief.

    The Appellee's Brief and Appendix

    The Appellee's brief is the other side's opportunity to respond to the Appellant's brief and tell the Supreme Court why the decision of the district court was correct. The Appellee's brief and appendix (if any) are due 30 days after service of the Appellant's brief and appendix. The Appellee's brief, not including the appendix, is also limited to 32 pages if a monospaced typeface, e.g., Courier New, is used, or 8,000 words if a proportionally spaced typeface, e.g., Arial or Times New Roman, is used. It should include all of the same sections discussed above for the Appellant's brief. The Appellee does not have to file an appendix if the Appellee chooses to rely on the material included in the Appellant's appendix.

    If you are the Appellee and do not wish to file a brief, tell the Clerk of the Supreme Court in writing, and send a copy to the other side. You will not be allowed to argue at any oral argument. However, this does not mean an automatic "win" for the other side. The Appellant still has the burden of showing why the district court was wrong.

    The Reply Brief

    The Appellant may file a reply brief in response to the Appellee's brief. A reply brief is not required. The reply brief is due 14 days after service of the Appellee's brief and is limited to 2,000 words or eight pages. The reply brief should not contain any new arguments or issues, nor should it repeat what you said in your opening brief. The purpose of the reply brief is to respond to any points raised in the Appellee's brief that you did not address in your opening brief.

    References: N.D.R.App.P. 28, 31, and 32.

    When will oral argument be held?

    Your case will be scheduled for oral argument after the brief of the Appellee or Respondent is filed. The Clerk's office will notify you when your case is scheduled for oral argument. There is no right to appear personally before the Court and provide oral argument. While every appeal that has been briefed will be scheduled for argument during an appropriate month, the Court may decide oral argument is unnecessary. Any party may file a statement explaining why oral argument should, or need not, be permitted. Either party or both parties may agree to waive argument and submit the case on the briefs. If the Court decides argument is unnecessary, no argument will be held, the case will be considered on the briefs and record, and you will be notified at least one week prior to the scheduled date of argument.

    If oral argument is heard, the Appellant will have 30 minutes to present argument and answer the Court's questions, and the Appellee will have 20 minutes. The Appellant opens and may reserve time, called rebuttal, to conclude the argument. You do not need to use all of your time. The Court prefers that you not use all the time allotted to you if you do not need it.

    References: N.D.R.App.P. 34.

    When will the Supreme Court decide my case?

    In most cases, the Court will issue a final written decision between 60 to 90 days after the scheduled argument date. The decision will be electronically forwarded to you if an email address or fax number is provided; otherwise, it will be mailed.

    References: N.D.R.App.P. 36.

    What can I do if I lose on appeal?

    The North Dakota Supreme Court is the highest court in this State. Therefore, if you lose on appeal to this Court, there is no other State court to which you can appeal. You may file a petition for rehearing with the Supreme Court, however, stating each point of law or fact that you believe the Court has overlooked or misunderstood in their written decision. A response to the petition is not permitted unless requested by the Court, and oral argument on the petition will not be scheduled unless requested by the Court.

    Petitions for rehearing are due within 14 days after the filing of the Court's final decision in the case. As with any brief, there is a page and word limit for petitions. (If proportionately spaced typeface is used, a petition for rehearing may not exceed 2,000 words; if monospaced typeface is used, a petition for rehearing may not exceed eight pages.) Petitions for rehearing are rarely granted in any case and, if granted, rarely lead to a different result.

    Once the Court has issued its final decision and resolved any pending petitions for rehearing, the unsuccessful party may try to seek relief in the federal courts. The procedure for seeking such relief is beyond the scope of this guide and the jurisdiction of this Court.

    References: N.D.R.App.P. 31, 32, 40, and 41.