II. Meandering into the Twentieth Century
. . .
N. Publication of Opinions
The 1889 judicial article directed the legislature to provide "for the publication and distribution of the decisions of the supreme court."(305) The Court regularly published the North Dakota Reports beginning in 1891.(306)
At the August 1953 State Bar convention, President E.T. Conmy reported that Chief Justice James Morris had "reminded" him
that a serious problem exists in the publication of our North Dakota Reports. The expense of publication has greatly increased and sales have greatly decreased. Sale decrease is probably due to the fact that most lawyers now buy only the Northwestern Reporter. It is the opinion of some, not of all by any manner or means, that publication of the North Dakota Reports should be discontinued altogether.(307)
President Conmy suggested appointing a committee "to study this problem and make its definite recommendations as soon as possible for the consideration of the Supreme Court."(308)
In 1954, chair Carroll E. Day, reporting for the State Bar Association's Judiciary Committee, recommended the Bar ask the legislature to give the Supreme Court "much wider discretion in the publication of the reports or in discontinuing such publication."(309) He explained:
For some reason only about 10 percent of North Dakota lawyers purchase North Dakota Reports.
[They] no longer include reference to the briefs and publication is necessarily delayed many months after the published opinions are available in the reporter system. . . . Vol. 78 will cost approximately $7,500. Under the circumstances this expense in the opinion of the Committee is not justified.(310)
The 1955 legislature proposed to amend Sec. 93 of the 1889 N.D. Constitution to read: "The decisions of the supreme court shall be published or recorded in the manner and form prescribed by the legislative assembly."(311) The people rejected that amendment at the 1956 primary election in one of those occasional cascades of rejections of ballot measures.(312)
Still, the Court had actually suspended publication of the North Dakota Reports after September 30, 1953,(313) but the Court did not get around to saying so publicly or to designating the popular North Western Reporter, published by West Publishing Co., as the official reporter until December 19, 1980, when the Court did so both prospectively and retroactively.(314) By 1980, of course, a 1976 amendment of the judicial article had wholly eliminated any constitutional duty to publish its opinions.(315)
305. N.D. Const. art IV, § 93 (repealed 1976).
306. 1 N.D. (1891). As authorized by the 1889 North Dakota Constitution, section 93, the Court regularly appointed a Reporter to aid in publication of the reports. They have been:
1889-1890, Edgar W. Camp (b.1860-d.1943);
1891-1893, R.D. Hoskins (b.1861-d.1946);
1894-1902, John M. Cochrane (b.1859-d.1909);
1903-1903, R.M. Carothers (b.1859-d.____);
1903-1911, F.W. Ames (b.1851-d.1925);
1912-1918, H.A. Libby (b.1859-d.1943);
1919-1923, Joseph Coghlan;
1923-1955, Edwin J. Taylor (b.1869-d.1956);
1956-1957, Wallace M. Ferguson;
1957-1960, Thomas W. Nielsen;
1960-1961, Theodore M. Camrud;
1962-1990, Elmer J. DeWald.
See North Dakota Centennial Blue Book, 1889-1989, at 465 (1989).
307. Report of 1953 Annual Convention of the State Bar Association, 29 N.D. L. Rev. 377, 429 (1953) [hereinafter 1953 Annual Convention].
308. Id. at 429-30.
309. Report of 1954 Annual Convention of the State Bar Association, 30 N.D. L. Rev. 333, 407 (1954) [hereinafter 1954 Annual Convention].
311. 1955 N.D. Laws ch. 362, at 643.
312. 1957 N.D. Laws, at 783.
313. The last decision reported in the North Dakota Reporter was Gust v. Wilson, 79 N.D. 865 (1953), which was decided September 30, 1953.
314. See Order Designating Official Report (N.D. Sup. Ct. Dec. 19, 1980) (on file with North Dakota Supreme Court) (retroactive to Sept. 30, 1953).
315. See N.D. Const. art IV, 93, repealed by 1977 N.D. Laws Ch. 599, at 1378-80.