III. Modernizing in the Twentieth Century
After drifting through much of this century with few real changes, the North Dakota Supreme Court began modernizing the state’s judicial system shortly after mid-century, but it went slowly even then. Modernization came largely with two parallel and progressive developments: Procedural rules were reformed by the Court, rather than by the legislature, and the judicial system became unified with a single-level trial court statewide and governed by the Supreme Court headed by an elected administrative Chief Justice.
A. Reformation of Procedural Rules
1. 1868: Origins of Civil Rules
By the middle of the twentieth century, the Code of Civil Procedure, sometimes called the Practice Code and codified in the North Dakota Revised Code of 1943, had long whiskers. These procedural statutes went back to one of the Field codes actually adopted in New York state in 1848,(316) through the Dakota Territorial legislature's adoption of the Field code of civil procedure in 1868.(317) It carried over to our state because the transition schedule for the 1889 N.D. Constitution directed: "All laws now in force . . . not repugnant to this Constitution . . . remain in force until they expire by their own limitations or be altered or repealed."(318)
Much of the territorial practice code remained in force and survived later state statutory revisions, including major ones in 1895, 1913, and 1943. It was still the current civil procedure after the North Dakota Revised Code of 1943 was completed.(319) By the middle of the twentieth century, most of the practice procedure in use in this state was over a century old.
2. 1926: Reform Desirable
Procedural reform by the Court was urged by the State Bar Association as early as 1926. That year, a report of a State Bar Association of North Dakota committee on "work . . . during the last three years" quoted from a national article about rule-making to advance one important reason for creating a judicial council:
To be required to run to the Legislature, however, for every needed change, so as to conform rules and methods to needs, would be not only dil[a]tory, confusing, and uncertain of results, but would be confession that the profession, which above all others, is the expert in this field is incompetent to take charge of the situation, as well as conceding to the Legislature part of the functions of the Judicial Department.(320)
3. 1941: Reform Authorized
The Supreme Court, though, seemed deterred from making its own rules by the constitutional restraint on the Court's control over other courts that was delegated only "under such regulations and limitations as may be prescribed by law."(321)
The 1919 legislature authorized the Supreme Court to make rules of pleading, practice and procedure.(322) But the Court only sparingly used the power. Before 1957, those procedural rules that the Court published in the North Dakota Reports merely supplemented statutory procedures for appeals.(323) Eventually, though, the 1941 legislature expressly authorized the Court to alter or amend procedural statutes and established a process to publish public notice and to hold a hearing on any proposed "new rule."(324)
The Court was in no hurry to change procedures. It did not move on procedural reform until years after mid-century. One scholar later tried to explain this disinclination:
Explanations for this reluctance to move are not difficult to suggest. For one thing, in the hands of the Court the Field Code of Civil Procedure ha[d] served this state extremely well, and a sense of tradition and stability ha[d] come to surround it. Most of the problems connected with it ha[d] been passed upon by the Court and the judges of the state [were] all thoroughly familiar with its principles. It is also possible that the members of the Court felt they were being asked to undertake an essentially legislative task; a majority of the justices felt that way, it will be remembered, when the Legislative Assembly placed the Committee on Code Revision under their jurisdiction . . . . [I]t is not at all surprising that a Court with a fine tradition of procedural effectiveness should feel no sense of urgency when asked to depart from a settled path.(325)
But the Court did eventually veer from the "settled path" of the past towards modernity.
In 1953, the North Dakota Senate Judiciary Committee sponsored an amendment of the 1941 rule-making statute to make a few minor modifications in the process and to shift from a generally published notice to one mailed to all judges and lawyers with "a copy of the proposed new rule."(326) That modest move opened the way for modernizing civil practice.
4. 1953: Revision Begins
During 1953, the Judicial Council authorized a committee of Judge Eugene A. Burdick of Williston, practitioner Norman Tenneson of Fargo, and practitioner Frank F. Jestrab of Williston to prepare proposed rules of civil procedure modeled on the existing Federal Rules of Civil Procedure.(327) The 1953 annual meeting of the State Bar Association authorized appointment of a like committee to similarly study use of the Federal Rules of Civil Procedure.(328) State Bar Association President Vernon Johnson of Wahpeton appointed a nine-member committee, chaired by practitioner Roy A. Ilvedson of Minot, consisting of seven practitioners, Judge Eugene Burdick, and Justice James Morris.(329)
The two committees began coordinating their work in January 1954.(330) On May 10, 1954, the Judicial Council approved a committee recommendation that a draft be made with a joint committee from the State Bar Association.(331) The Chief Justice appointed five members of the proposed Joint Committee: Judge Eugene A. Burdick; Judge A.J. Gronna of Minot; Frank F. Jestrab; Norman Tenneson; and Law School Dean O.H. Thormodsgard.(332)
At the 1954 annual meeting of the State Bar Association, chair Ilvedson, speaking for "The Rules of Civil Procedure Committee," recommended the Bar join in forming the Joint Committee to complete the draft of new rules and submit it to the Supreme Court for hearing and adoption.(333) Ilvedson reported the recommendation had "been approved by all members of the committee," except that "Hon. James Morris is not sure it should be adopted by the [Court] [or] ruled on by the legislature."(334) During discussion, Ilvedson clarified by reading Justice Morris's letter explaining, "whether it is advisable to proceed through the Supreme Court or through the Legislature has not been definitely determined."(335) Bar president Johnson ruled, "it is a proper matter for consideration whether we would rather have the Supreme Court in its rule making power adopt the rules or whether we would submit it to the legislat[ure]." E.T. Conmy of Fargo urged: "I think we went to a lot of trouble to get power in the Supreme Court and as far as I'm concerned the Supreme Court is by far a better body to pass on rules than the legislature. It is the most competent body to do it. . . ."(336) A future justice, Alvin C. Strutz of Bismarck, echoed Conmy's sentiments, no one advocated going through the legislature, and the recommendations of the Bar's Committee were adopted.(337)
Besides the five members of the Joint Rules Committee appointed by the Chief Justice from the Judicial Council, the new Bar president, John Zuger, appointed six members: E.T. Conmy of Fargo; Senator Carroll E. Day of Grand Forks; Senator Clyde Duffy of Devils Lake; Roy A. Ilvedson of Minot; H.A. Mackoff of Dickinson; and Herbert G. Nilles of Fargo.(338) Frank F. Jestrab became chair of the Joint Committee on Rules of Civil Procedure.(339) This committee was clearly the earliest predecessor of the current Joint Procedure Committee.
The presence of State Senator Carroll E. Day on the committee may have recognized his prior legislative role as a catalyst for reforming the rules. He had been chairman of the Senate Judiciary Committee that sponsored the 1953 amendment of the statutory process for adopting new rules to require a copy of any proposed rule to be noticed to each judge and lawyer.(340) A distinguished practicing lawyer,(341) Senator Day was killed in an airplane crash on March 3, 1956, before fruition of his efforts.(342)
Judge Burdick and Frank Jestrab, both located in Williston, did most of the preliminary drafting.(343) Judge Burdick was not only the principal draftsman of the 1957 Civil Rules but also, as we will see, he later became the chief draftsman of many other new rules and revisions.
5. 1957: New Civil Rules
The Joint Committee submitted its draft to the Court on December 15, 1954.(344) In an addendum to the petition, Senator Clyde Duffy said he signed it "because [he] believe[d] an excellent job ha[d] been done of integrating the federal rules into North Dakota law and practice," but he was "not prepared to recommend the substitution of the federal rules for the rules heretofore prevailing in this state."(345) Chair Jestrab was hopeful "that the court [would] move promptly," since "[i]t would be helpful to the profession. . . ."(346)
The proposed rules were noticed to judges and lawyers.(347) The Court held the hearing on June 1-2, 1955,(348) where retired Justice William Nuessle (1923-1950)(349) vigorously resisted the new rules.(350) Alvin C. Strutz, who was later appointed to the Court, reversed his support for new rules voiced at the 1954 annual meeting of the Bar, and wrote to oppose them:
If these proposed rules are adopted, then all of the decisions which we have in North Dakota touching upon the Statutes or rules of our Courts, are of no further benefit to us and we must start all over again interpreting the new rules. We do not believe that conditions require such a sweeping change . . . .(351)
Several other written objections, including one by a district judge, argued the statutes authorizing the Court to make rules and to supersede inconsistent statutes were "an unconstitutional and improper delegation of legislative power to the Supreme Court. . . ."(352)
On June 18, 1955, the Joint Committee, "[p]ursuant to leave granted," filed a supplemental petition suggesting changes to a number of the proposed rules, evidently responding to questions and suggestions at the hearing.(353) Late in 1955, Chief Justice Thomas Burke still assumed "[i]t [was] going to take considerable time for the Court to go over these rules."(354) It did.
Two years later, despite the opposition from past and future justices, the Court unanimously adopted the new rules on April 25, 1957, effective July 1, 1957.(355) The Court "made such amendments and changes therein as in the judgment of the Court are desirable to accomplish the[ir] purposes. . . ."(356) By then, the statutory rotation system had replaced Chief Justice Burke with Chief Justice G. Grimson,(357) who demonstrated leadership.
North Dakota thus became the thirteenth state to follow the federal pattern,(358) in the vanguard of the long procession of states that followed suit. After being frozen in place for nearly a century, the Court's glacial pace of modernization began to move with this watershed event.
6. Connections and Contrasts
The new rules were more compact than the existing statutory procedure. They contained seventy-nine separate rules but superceded 183 statutes, "thereby eliminating a very considerable amount of excess wordage as well as simplifying much statutory language."(359) While the 1957 Civil Rules embraced simplification, a cynic might suggest that purpose was not always respected in the outpouring of rules from the Court that followed later.
How much did this turning point alter the practice landscape?
The 1957 Civil Rules were the existing Federal Rules of Civil Procedure "adapted, insofar as practicable, to state practice."(360) They marked "the first comprehensive change in civil procedure in North Dakota since the adoption of the Field Code by the Territorial Legislature in May of 1862."(361) They were designed to be "a modern, integrated, cohesive body of procedure," "there [was] much that [was] new," but "much of the old remain[ed]."(362)
The "old" included parts of the federal rules previously imported into North Dakota statutes after the federal rules had appeared in 1938. For example, the pretrial-conference device had come into the state Code, "acting on the recommendation of a committee under the leadership of Mr. Justice Grimson."(363) Also, because the federal rules "benefitted substantially from Field Code principles in their original drafting," the new rules did "not represent a departure from the procedural heritage of this state so much as an enrichment of it."(364)
Yet, the 1957 Civil Rules contained much that was in fact new here, even if commonplace in today's practice.
Third-party practice, broader joinder of claims and parties, deposition and discovery, summary judgment, and the demand for jury trials [were] among the new. Demurrers [had] been abolished, artificial restriction on joinder [had] been eliminated and motion practice [had] been made more elastic and functional. None of these things [were] experimental. They [had] been tested and approved by a productive experience in the Federal Courts and the state courts which [had] adopted the Federal Rules.(365)
The "new" material thus made available more modern and useful procedures.
The historical significance of adoption of the 1957 Civil Rules, however, lies more in how it was done, by the Court, than in the scope of the changes.
7. Revision of Rules Continues
Having implemented its own comprehensive practice rules for the first time, the Court seemed poised to make reformation of rules the ongoing process it ought to be. But it took yet another decade for the next stage to get going.
At a Judicial Council meeting in June 1967, Chief Justice Obert C. Teigen suggested a committee be created jointly with the State Bar Association to develop new rules of criminal procedure.(366) The Council set up the committee. That study and others were undertaken, sometimes by separate committees for different sets of rules.
Continuing the course of the Joint Committee for the 1957 Civil Rules, the 1967 committee for criminal rules, first chaired by then Justice Erickstad, eventually evolved into a "Special Procedure Committee" (1976), and then a "Joint Procedure Committee of the Judicial Council and State Bar Association" (1977). Finally, it became the "Joint Procedure Committee" (1980) known today.(367)
Judge Burdick was on the committee for criminal rules, too, and he continued on all the successive joint committees until retiring from the Joint Procedure Committee in 1991.(368) Besides the 1957 Civil Rules, Judge Burdick was the principal draftsman of the first North Dakota Rules of Court (1962-63), the first pattern jury instructions (1964-66), and the revised pattern jury instructions (1984-86).(369) His careful craftsmanship remains visible in many of our current rules and in the comments published with them.
If Judge Burdick became the master draftsman of rules and revisions, Justice Erickstad became the master navigator of modernization for the courts. As soon as Justice Erickstad became the Chief Justice in mid-1973, he urgently championed comprehensive written rules for governing the whole of the judicial system.
From that point on, the Court's rule-making thrived. The Court adopted and published procedural rules for criminal practice (1973), evidence (1977), appellate practice (1979), and rules of court (1981); also rules of conduct for judges and lawyers, including a code of judicial ethics (1977), rules for judicial discipline (1977), standards for continuing professional education of lawyers (1977), and standards for lawyers' disciplinary sanctions (1988); as well as rules of professional responsibility for lawyers (1977), procedures for lawyer discipline and disability (1977), disciplinary board procedures (1977), and procedures for admission to law practice (1980).(370) Once published, the rules were frequently revised on recommendations from the continuing Joint Procedure Committee chaired by Justices Robert Vogel from 1973 to 1975; Paul M. Sand from 1975 to 1984; H.F. Gierke III from 1985 to 1991; Beryl J. Levine from 1992 to 1996; and Dale Sandstrom from 1996 to present.(371) But the process was constantly encouraged by Chief Justice Erickstad.
With Chief Justice Erickstad's guidance, the Court also began the use of written Administrative Orders (O.A.s) and Administrative Rules (A.R.s). In October 1974, the Court's first Administrative Order designated, for each of the six judicial districts, a presiding district judge who had responsibility for assigning cases to, and requiring reports from, all other judges within that district.(372) The seven presiding judges later began meeting as a Council of Presiding Judges, with one named by the Chief Justice as a Chief Presiding Judge, to set policies for the trial courts.(373) In 1992, the Administrative Rules were amended to authorize the trial judges to elect their own presiding judge in each district, and later the Chief Justice became the presiding officer of the Council of Presiding Judges.(374)
The Joint Procedure Committee continues to study rules and regularly recommends revisions that the Supreme Court usually adopts, sometimes with changes the Court chooses to make. By continuing this process of regular revision of existing rules, the Supreme Court keeps the system up to date.
8. Publishing Rules
The eruption of rules during the 1970s brought from the Court a separate loose-leaf notebook for each set to every practitioner's desk. This accumulation provoked some grumbling from practitioners who preferred the familiar and simpler past to a proliferation of new rules.
Before long, West Publishing Company solved the accumulation difficulty by publishing an annual pamphlet, beginning in 1981, that collected all the administrative and procedural rules in a single reference.(375) West continues to publish an annual rulebook and, in 1990, Michie Publishing Co., now Lexis Law Publishing, publisher of the North Dakota Century Code, began to publish an annual Code supplement containing the rules and annotations to related cases.(376) Thus, every practicing lawyer can (and should) have a rulebook at his or her fingertips to consult conveniently.(377)
9. Appellate "Trial Anew" Repealed
One of the more remarkable reforms was repeal of the statutory procedure for a "trial anew" in appeals from non-jury cases to the Supreme Court. Curiously, even after the Court's power to supersede procedural statutes had been enacted in 1941(378) and exercised effectively in 1957, this important reform came by legislative action, not by Supreme Court action.
The "trial anew" review, sometimes called "trial de novo," did not come directly from the Field code as had most of our civil procedures. The concept originated in ancient Roman law.(379) "In the hearing in the higher court new facts and new proofs could be adduced and new points and objections urged without limit. There was a complete rehearing of the cause de novo."(380) In the middle ages, the ecclesiastical courts of Europe borrowed this Roman scope of appellate review.(381) France and other civil law countries inherited the procedure this way.(382) De novo review reached the English ecclesiastical courts, too, where American equity practice came from.(383)
As appellate review developed in this country during the nineteenth century, since "an appeal in equity was a hearing of the case de novo, a party was not precluded from taking a ground in the higher court which he had not suggested below."(384) An equitable decree "was open to review on the facts, no less than on the law."(385)
"Trial anew" came to North Dakota after statehood, but early in its history, when lawyer Seth Newman sponsored Chapter 82 of the 1893 North Dakota Laws in his single session as a legislator. Newman had been born, studied law, and admitted to practice in 1860 in the state of New York.(386) He practiced for a time in Iowa before coming to Fargo, North Dakota in 1879.(387) He was politically active here, served a term as mayor of Fargo, a term as Fargo City Attorney, and in the 1893 legislature.(388)
Newman was highly regarded by his peers, unanimously elected as the first president of the State Bar Association in 1899, and twice re-elected for one year terms.(389) Indeed, the original organizational meeting of the Bar Association of North Dakota grew out of "an informal meeting of the members of the bar" at the Grand Forks courthouse, who assembled "at the request of Honorable Seth Newman, representing the . . . Fargo Bar Association . . . ."(390) The Bar Association's memorial characterized him as "the Nestor of the legal profession of North Dakota,"(391) an admiring comparison to the "wisest and oldest of the Greeks in the Trojan War."(392) Newman surely was among North Dakota's "oldest and wisest" lawyers of his time.
Newman's biography in the early records of the State Bar Association gave him credit for the statute on "trial anew" review:
Mr. Newman was the author of the law changing the method of trial of equity causes, . . . under which equity causes are reviewed on appeal on the merits and final judgment rendered instead of being reviewed on error and new trial granted.(393)
The 1893 legislative enactment required "trial anew" review by the Supreme Court in virtually all non-jury civil cases.(394)
As early as 1916, this extensive review had been criticized by one North Dakota historian as "inconsistent and conflict[ing] with . . . appel[l]ate jurisdiction" because it converted the Supreme Court into "a trial court" compelled to "wade through a voluminous record, containing usually a tangled mass of relevant and irrelevant testimony which the court below was powerless to exclude."(395) Historian Lounsberry declared this "innovation" "should be relegated to the 'scrap heap' and [all] cases be reviewed the same . . . ."(396) "Trial anew" appellate review was an archaic and clumsy device.
Going into the twentieth century, notions of appellate review began changing.
[T]he rules with respect to review of findings of fact by juries, the pressure of work in appellate courts in the last half of the nineteenth century, and a feeling that the primary work of those courts was to find and declare the law, led many [other state] courts to [hold] that a reviewing court would give a finding of fact by a judge or chancellor the force of a [jury] verdict.(397)
Different state courts variously modified this form of review, but Dean Pound tells us: "More generally it was [held] that [a] finding would not be disturbed unless it was clearly wrong."(398) By 1941, there had "been a steady progress [the last forty years] to get away from consequences of regarding a proceeding for review as a new proceeding . . . ."(399)
Dean Pound gave "trial anew" the most damning criticism: "To pile one oral trial or hearing upon another is expensive and wasteful. . . . New trials ought to be avoided whenever the materials of assured application of law to facts fully and fairly ascertained have been provided at the first trial."(400)
But "trial anew" review was not modified when the Court adopted the 1957 Civil Rules from the federal pattern even though Federal Rule 52(a) stated the modern standard for review: "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses."(401) In 1954, the Joint Committee on Rules of Civil Procedure for North Dakota proposed the "clearly erroneous" standard in its recommended Rule 52(a), but did not put section 28-2732 of the 1943 North Dakota Revised Code (the Newman Law), into the proposed appendix of statutes superseded.(402) However, in their supplementary petition shortly after the hearing, the Joint Committee proposed an appendix of Special Statutory Proceedings to be excepted from the rules under Rule 81, "insofar as they are inconsistent or in conflict with the procedure and practice provided by these rules."(403) That proposed appendix excepted section "28-2732 . . . Trial De Novo in Supreme Court."(404) Still, the Committee did not suggest changing the recommended Rule 52(a) language that directed "[f]indings of fact shall not be set aside unless clearly erroneous."(405)
In adopting the proposed Civil Rules in 1957, the Court evidently saw the ambiguity and remodeled Rule 52(a). The Court deleted the "clearly erroneous" standard, as well as the instruction to consider "the special opportunity of the trial court to judge the credibility of the witnesses who appeared personally before it."(406) The Court then did not supersede the "trial anew" statute, but rather listed it in Table A as an excepted Special Statutory Proceeding under Rule 81(a).(407) The ancient "trial anew" review thus survived the 1957 movement to modernize rules of practice.
Former Justice William S. Murray (1966), ruminating on his short career on the Court,(408) despaired of changing "trial anew" review: "This 'Newman Law' places the North Dakota Supreme Court, in a sense, in the role of a jury . . . . It is unlikely that it will ever be repealed."(409)
In 1970, Justice Erickstad urged repeal of the "trial de novo" statute as one way to overcome congestion and delay, recognizing that "delay in the rendering of decisions has perhaps been the greatest criticism . . . directed at the supreme court . . . ."(410) "[T]o try anew the questions of fact . . . is very time-consuming and frustrating," he argued.(411) Even after "trial anew" review was repealed in 1971, one scholar advocated amending the judicial article to prevent the legislature from ever reinstating it!(412)
More than a decade after the reformation of civil procedure in 1957, on April 17, 1970, the Judicial Council approved a draft bill "to repeal the statute providing for trial de novo" and agreed to submit the proposed bill to the legislature.(413) Again on January 11, 1971, the Judicial Council approved a draft bill "to repeal section 28-27-32" for submission to the legislature.(414) Both motions were made by Judge Burdick.
Senators Robert Chesrown of Linton, Howard Freed of Dickinson, and Donald Holand of Fargo, all lawyers, sponsored Senate Bill 2252 to repeal "trial anew" review and to delete a reference to it from another section on appellate procedure.(415) The bill was supported at the 1971 Senate hearing by district Judge Adam Gefreh of Linton ("N.Dak. is the only state that has such a trial de novo statute"), and Justice Strutz ("justice would be done if a court appeal would be treated [like] a jury case"), and opposed only by attorney Fred Saefke of Bismarck ("the present law is the best protection litigants have").(416) The Senate Judiciary Committee unanimously endorsed the bill, and the North Dakota Senate passed it without a single vote against it.(417)
The measure had a more difficult course in the North Dakota House of Representatives. Again, the bill was supported by Judge Gefreh and Justice Strutz, as well as by Judge Burdick ("loads the court unnecessarily") and attorney Hugh McCutcheon of Minot ("Appellate court should not become trial court.").(418) But the measure drew serious opposition from other lawyers: Wm. R. Pearce of Bismarck ("This is a step backward"); Fred Saefke again; and Al Wolf of Bismarck ("May cut down on the work of the supreme court but people of N.Dak. are entitled to this.")(419)
On the motion of longtime Representative Earl Rundle, the House Judiciary Committee voted 8 to 4 to recommend the bill be indefinitely postponed.(420) When the Committee recommendation reached the floor of the House, however, committee member Representative Donald Moore moved to place S.B. 2252 on the calendar instead, and his motion prevailed.(421) On March 3, 1971, S.B. 2252 passed the House by a 60 to 35 vote.(422) "Newman's Law" was repealed, and appellate review was finally ready for a modern procedural standard.(423)
In August 1971, the Court amended NDRCivP 52(a) to incorporate the "clearly erroneous" standard for reviewing a trial court's findings of fact.(424) It is well accepted today that factual findings by an appellate court from a complex written record are generally less reliable than ones made by a trial judge from direct observations of all participants at the trial while the record was developed, unless the findings are clearly erroneous.(425)
Even though the "trial anew" concept is largely gone from our appellate practice, a few remnants remain in our Code.(426) Still, the replacement of trial-de-novo review with the modern standard more deferential to the fact-finding efforts of the trial court was an important step in modernizing our judicial system in the last third of this century.
10. Favored Appellate Finality Forgotten?
In the process of repealing "trial anew" review, however, another feature of Newman's law was left out of the discussions, apparently inadvertently, and has been nearly overlooked. Newman's Law also directed the reviewing Court, in appeals from "all actions tried by the district court without a jury," to "render final judgment therein, according to the justice of the case."(427) In early applications of Newman's law, the N.D. Supreme Court valued this feature.
The statute . . . requires us to render final judgment, and thus, by its mandate, forever terminate the particular litigation. . . . [T]o the legislative mind it doubtless suggested a means of terminating litigation in a manner that should at once possess the strongest probability of absolute justice with the least expenditure of time and money. It avoids the delay and expense of a second trial, and the risk of further errors that might necessitate a second appeal. If these legislative objects can really be accomplished, the value and propriety of the statute cannot be doubted.(428)
Dean Pound, in his classic 1941 work for the National Conference of Judicial Councils, Appellate Procedure in Civil Cases, reviewed twentieth-century improvements and reported "there ha[d] been a steady progress toward winding up controversies in one proceeding and with a minimum of retrial and successive appeal."(429) In his concluding chapter, "Toward an Effective System of Review," Dean Pound recommended "courts of review should be empowered and required to make a complete final disposition of the whole proceeding brought before them."(430)
The North Dakota Supreme Court has been hesitant and uncertain in using the principle favoring appellate finality where possible.(431) The Court should carefully consider the expansive language in rule 35(b) of the North Dakota Rules of Appellate Procedure as adopted in 1979 from a statute that originated from 1887 territorial legislation.(432) Appellate Rule 35(b) describes broadly the power of the Court on review in civil cases.
The last sentence of rule 35(b) of North Dakota Rules of Appellate Procedure twice emphasizes "final judgment," while the second and third sentences of that subsection condition a remand for "some issue . . . [that] has not been tried, or if tried has not been determined by the trial court" on whether "it is necessary or desirable to proper disposition of the case on appeal."(433) The direction in the fourth sentence of rule 35(b), ("In all cases the supreme court shall remit its final judgment or decision to the court from which the appeal was taken to be enforced accordingly . . . ."), should be read to embody and continue the most worthwhile, but overlooked, feature of the Newman law reflected in the "final judgment" language in Rule 35(b) and its statutory predecessors.
The Court should seek to carry on that traditional appellate objective of final disposition in reviewing final judgments after a full trial in non-jury cases. Doing so would fulfill the basic goal of all procedure stated in Rule 1 of North Dakota Rules of Civil Procedure "to secure the just, speedy, and inexpensive determination of every action."
11. The Largest Advance
Reformation of procedural rules by the Court itself was the first real step since statehood towards modernizing the judicial system.
316. See Bonde v. Stern, 14 N.W.2d 249, 251-52 (N.D. 1944); Hon. James Morris, Some Historical Origins of Statutory Law and Judicial Decisions in North Dakota, in Essays in Legal History in Honor of Felix Frankfurter 101, 103 (1966).
317. See id. + "The New York Civil Code and Penal Code were adopted in Dakota Territory by its 1865-66 Assembly. And the Code of Civil Procedure of 1847-49 was adopted by Dakota (1868) as well as the Code of Criminal Procedure of 1849 (1869)." Hyatt, supra note 2, at 96.
318. N.D. Const. sched., § 2 (repealed 1978).
319. See N.D. Rev. Code titles 27-32 (1943).
320. Report of Annual Meeting of the State Bar Association of North Dakota on September 9-10, 1926, 3 N.D. B. Brs. 133-34 (1926). It is noteworthy that A.G. Burr chaired and reported for the committee. See id. at 134. On December 1, 1926, Alexander G. Burr, a district judge since 1908, was appointed to the Supreme Court by Governor Sorlie to succeed Justice Sveinbjorn Johnson who resigned to become legal counsel and professor of law for the University of Illinois. See Sketch, supra note 2, at 43, 45.
321. N.D. Const. art. IV, § 86 (repealed 1976). This language is verbatim from the model constitution suggested for the 1889 Constitutional Convention by Professor Thayer. According to the annotations with Peddrick's Model Draft #2, art. XIII, § 8, it came from "Ark., Colo., Mon., VI, 2." See Meschke & Spears, supra note 54, at 415, 454-60, 486-87. Much of what Prof. Thayer recommended for the judicial article seems to have been drawn from the constitution prepared for Montana's statehood. See Meschke & Spears, supra note 54, at 380.
322. See 1919 N.D. Laws ch. 167, § 6, at 284 (codified as amended at N.D. Cent. Code §27-02-08 (1998)).
323. See N.D. vols. 3, 6, 10, 23, 29, 41, 76.
324. See 1941 N.D. Laws ch. 238, at 389-91 (codified as amended at N.D. Cent. Code §27-02-09 (1998)).
325. Charles Liebert Crum, The Proposed North Dakota Rules of Civil Procedure, 32 N.D. L. Rev. 88, 91-92 (1956).
326. 1953 N.D. Laws ch. 201, § 1, at 322-23 (codified at N.D. Cent. Code § 27-02-11, repealed by 1981 N.D. Laws ch. 317, § 1, at 855).
327. See 1954 Annual Convention, supra note 309, at 345.
328. See 1953 Annual Convention, supra note 307, at 395-96.
329. See 1954 Annual Convention, supra note 309, at 345, 348.
330. See 1954 Annual Convention, supra note 309, at 345.
331. See 1954 Annual Convention, supra note 309, at 346-48.
332. See 1954 Annual Convention, supra note 309, at 348.
333. See 1954 Annual Convention, supra note 309, at 347-48.
334. 1954 Annual Convention, supra note 309, at 348.
335. 1954 Annual Convention, supra note 309, at 349.
336. 1954 Annual Convention, supra note 309, at 349.
337. See 1954 Annual Convention, supra note 309, at 349.
338. North Dakota Rules of Civil Procedure Governing Procedure in the District Courts, at xiii (West 1957) [hereinafter Hardcover 1957 Rules].
339. See id.
340. See State of North Dakota, Senate and House Rules and Committees, at 23-S.R. (1953).
341. Senator Day had been a lecturer at the Law School on practice and procedure from 1936 to 1948, while practicing in Grand Forks. See Crum, supra note 79, at 20, 23, 33 (1959).
342. See Bench and Bar, 32 N.D. L. Rev. 281, 286-87 (1956).
343. Interview with retired Judge Burdick (Summer 1999).
344. See Hardcover 1957 Rules, supra note 338, at xiii.
345. See Addendum to Petition to Amend Proposed Rules of Civil Procedure (on file with the office of the clerk of the North Dakota Supreme Court, File 7514).
346. See Justice Morris's copy of letter from Frank F. Jestrab to Roland Heringer, Vice-President, North Dakota Bar Association (Dec. 30, 1954) (copy of letter on file with the office of the clerk of the North Dakota Supreme Court, File 7514).
347. See Hardcover 1957 Rules, supra note 338, at xv. West Publishing Company printed 800 pamphlet copies of the proposal "as a public service" for use in notifying judges and lawyers. Letter from West Publishing Company to J.H. Newton, Clerk, North Dakota Supreme Court (Apr. 1, 1955) (on file with the office of the clerk of the North Dakota Supreme Court, File 7514).
348. See Hardcover 1957 Rules, supra note 338, at xviii.
349. See Sketch, supra note 2, at 42.
350. Interview with retired Judge Burdick (Summer 1999).
351. Letter from Alvin C. Strutz to Hon. Thomas J. Burke, Chief Justice, North Dakota Supreme Court (May 18, 1955) (on file with the office of the clerk of the North Dakota Supreme Court, File 7514).
352. Wm. R. Reichert & W.F. Reichert, Objections to Proposed Rules of Civil Procedure (on file with the office of the clerk of the North Dakota Supreme Court, File 7514).
353. Petition to Amend Proposed Rules of Civil Procedure (June 17, 1955) (on file with the office of the clerk of the North Dakota Supreme Court, File 7514).
354. Letter from J.H. Newton, Clerk, North Dakota Supreme Court on November 23, 1955, to the senior writer of this article when he was a brash young associate in a Minot law firm. Mr. Newton's letter responded to a telephone inquiry about status of the proposed rules. Mr. Newton's letter elaborated: "Judge Burke . . . states that at the present time no time has been set for final consideration of these rules. A large list of accumulated cases awaits decision of the Court and each month brings additional matters for the Court's consideration."
355. See Hardcover 1957 Rules, supra note 338, at xviii.
356. See Hardcover 1957 Rules, supra note 338, at xviii.
357. Besides Chief Justice Grimson, the members of that Court were Justices Thomas Burke, Nels Johnson, James Morris, and P.O. Sathre. See Sketch, supra note 2, at 8.
358. See Hardcover 1957 Rules, supra note 338, at vii.
359. Crum, supra note 325, at 93.
360. See Hardcover 1957 Rules, supra note 338, at vii.
361. Hardcover 1957 Rules, supra note 338, at vii. In the foreword, joint committee chairman Jestrab was a little off on his Dakota Territorial legislative date; it was 1868. See Bonde v. Stern, 14 N.W.2d 249, 251 (N.D. 1944); Morris, supra note 316.
362. Hardcover 1957 Rules, supra note 338, at vii.
363. Crum, supra note 325, at 92. Ten other sections of the North Dakota Revised Code of 1943 had incorporated items from the federal rules. See Crum, supra note 325, at 92 n.16.
364. Crum, supra note 325, at 93.
365. Hardcover 1957 Rules, supra note 338, at vii.
366. See Judicial Council Minutes 124 (June 22, 1967) (on file with North Dakota Supreme Court Administrator's Office).
367. See Records of Joint Procedure Committee (on file with North Dakota Supreme Court Law Library).
368. See Resume of Hon. Eugene A. Burdick, available at <home1.gte.net/eburdick/biography.htm>.
369. See id. Judge Burdick also became one of North Dakota's Commissioners for Uniform State Laws in 1959, and attained leadership positions in that national organization: Chair of the executive committee (1969-71), president (1971-73), and then chair of its committee on style for over 25 years since 1974. See id.
370. See North Dakota Rules of Court (West 1981 & later editions).
371. See Joint Procedure Committee Minutes (Dec. 19, 1973; Apr. 28, 1975; Mar. 28-29, 1985; Oct. 29-30, 1992; Apr. 25, 1996) (on file with North Dakota Supreme Court Law Library).
372. See Lois Katherine Erickstad, Administration of the North Dakota Judicial System 16 (June 1983) (unpublished Public Administration graduate thesis, University of North Dakota) (citing Admin. Order No. 1 (1974)).
373. See N.D. Sup. Ct. Admin. R. 2 (approved September 7, 1976). In 1992, North Dakota Supreme Court Administrative Rule 2 was amended to allow trial judges to elect the presiding judge for their district, instead of an appointment by the Chief Justice. See also N.D. Sup. Ct. Admin. R. 22 (governing the Council of Presiding Judges).
374. See N.D. Sup. Ct. Admin. R. 22(2)(c) (effective September 13, 1995).
375. See North Dakota Rules of Court (West 1981 & later editions).
376. See Court Rules, N.D. Cent. Code (1991 & later editions).
377. Also, all rules are accessible without cost through the North Dakota Supreme Court's web site at <http://www.ndcourts.gov>.
378. 1941 N.D. Laws ch. 238, at 389-91.
379. See Roscoe Pound, Appellate Procedure in Civil Cases 6-9 (1941).
380. Id. at 8.
381. See id. at 9-11.
382. See id. at 11-14.
383. See id. at 67-71.
An appeal is a process of civil law origin. In England it was in a great measure confined to equity, ecclesiastical, and admiralty jurisdictions, where trial by jury was unknown. As originally used, it removed the entire cause to the superior court, subjecting both law and fact to retrial.
Christianson v. Farmers' Warehouse Ass'n, 5 N.D. 438, 445, 67 N.W. 300, 302 (1896).
384. Pound, supra note 379, at 298.
385. Pound, supra note 379, at 300.
386. See Proceedings of the North Dakota Bar Association for the Years 1904-1905 and 1905-1906, at 90-91 (W.H. Thomas compiler & ed., 1907) [hereinafter Proceedings 1904-1906].
387. See id.
388. See id. at 91.
389. See Proceedings of the North Dakota Bar Association from September 19, 1899, to September 21, 1904, at 7, 9 (W.H. Thomas compiler & ed., 1905) [hereinafter Proceedings 1899-1904].
390. See id. at 11.
391. Proceedings 1904-1906, supra note 386, at 89.
392. Random House Dictionary 960 (1967).
393. Proceedings 1899-1904, supra note 389, at 9.
394. See 1893 N.D. Laws ch. 82, at 198-99; see also N.D. Rev. Code § 28-2732 (1943).
395. Lounsberry, supra note 1, at 449.
396. Lounsberry, supra note 1, at 449.
397. Pound, supra note 379, at 300.
398. Pound, supra note 379, at 301.
399. Pound, supra note 379, at 375.
400. Pound, supra note 379, at 5.
401. Fed. R. Civ. P. 52(a).
402. See Proposed Rules of Civil Procedure For the District Courts of North Dakota (on file with the office of the clerk of the North Dakota Supreme Court, File 7514).
403. See Petition to Amend Proposed Rules of Civil Procedure (June 17, 1955) (on file with the office of the clerk of the North Dakota Supreme Court, File 7514).
406. See Hardcover 1957 Rules, supra note 338, at 68.
407. See Hardcover 1957 Rules, supra note 338, at 107.
408. Justice Murray served only nine months when he was defeated for election to the position after being appointed by Governor William Guy to replace Justice Thomas Burke, who died in office on March 20, 1966. See Sketch, supra note 2, at 56, 49. Justice William Paulson (1966-1983) was elected to the position that Justice Murray left. See Sketch, supra note 2, at 57.
409. Hon. William S. Murray, Through the Looking Glass or How to Be a Judge in Ten Easy Lessons, 43 N.D. L. Rev. 423, 425 (1967).
410. Hon. Ralph J. Erickstad, Thoughts on Ways of Expediting the Work of Our Supreme Court, 46 N.D. L. Rev. 409 (1970).
411. See id. at 411-12.
412. Richard R. Kuhns, Revising A State Judicial Article: Issues for the North Dakota Constitutional Convention, 48 N.D. L. Rev. 219, 233 n.66 (1972):
It would . . . be desirable for the constitution to eliminate the possibility for de novo supreme court review of the entire record of a case. . . . Since the legislature apparently has the power to provide for a de novo supreme court review, [under article IV, section 86 of the North Dakota Constitution], and since it has exercised this power in the past, [under section 28-27-32 of the North Dakota Century Code] (repealed 1971), it would be appropriate for the constitution to state explicitly that the supreme court's appellate jurisdiction does not include de novo review. (citation omitted)
413. See Judicial Council Minutes 164 (Apr. 17, 1970) (on file with North Dakota Supreme Court Administrator's Office).
414. See Judicial Council Minutes 173 (Jan. 11, 1971) (on file with North Dakota Supreme Court Administrator's Office).
415. S.B. 2252, 42d Leg. (N.D. 1971).
416. Minutes of 1971 Senate Judiciary Committee (Feb. 3, 1971).
417. State of North Dakota, Journal of the Senate 425 (42d Leg. 1975).
418. Minutes of House Judiciary Committee (Mar. 1, 1971).
420. See id.
421. See State of North Dakota, Journal of the House 1073 (42d Leg. 1975).
422. See id. at 1101-02.
423. See 1971 N.D. Laws ch. 311, § 2, at 720, repealing N.D. Cent. Code § 28-27-32.
424. Letter from Gerhard Raedeke, Staff Attorney, Joint Procedure Committee, to Herbert L. Meschke (Mar. 24, 1999) (on file with author) (citing minutes of a March 29-30, 1979 committee meeting that recommended deletion of this sentence from the Explanatory Note: "In 1971, the rule was amended by the addition of the scope of review by the Supreme Court of findings of fact of a trial court, in compliance with the federal rule.").
425. "In all systems the history of appellate procedure shows the importance of separating ascertainment of the facts, as a process, from ascertainment of the applicable law and application of the ascertained law to the facts." Pound, supra note 379, at 4.
426. See N.D. Cent. Code § 27-20-56(1) (1991) (on review of juvenile court decisions); Anderson v. K.S., 500 N.W.2d 603, 605 (N.D. 1993).
427. 1893 N.D. Laws, ch. 82, at 198-99; N.D. Cent. Code § 28-27-32 (1970), repealed by 1971 N.D. Laws, ch. 311, at 720.
428. Christianson v. Farmers' Warehouse Ass'n, 5 N.D. 438, 445, 67 N.W. 300, 302 (1896) (reversing the trial court's decision and remanding for entry of a final judgment of foreclosure for the appellants); see also Taylor v. Taylor, 5 N.D. 58, 65, 63 N.W. 893, 895 (1895) (reversing a trial court's decision denying a divorce for condonation and remanding with thorough-going directions for entry of final judgment to give the appellant-spouse custody of two children, grant her title to specified property, and order the respondent-spouse to pay specified child support).
429. Pound, supra note 379, at 373.
430. Pound, supra note 379, at 387. "[A]ppeal upon appeal ought not to be allowed. One trial and one appeal in one case should be regarded as the normal course of litigation." Pound, supra note 379, at 392.
431. For a recent example, see Goff v. Goff, 1999 ND 95, 593 N.W.2d 768, where Justices Kapsner and Neumann voted to reverse a trial court decision denying a custodial parent permission to relocate to another state with the children, concluding the trial court's findings "were clearly erroneous because they were based on an erroneous interpretation of the law" but, instead of making a final disposition, voted to "remand for the trial court's determination on [the custodial parent's] motion for relocation applying a proper [legal] analysis . . . ." Id. at 773. Justice Maring concurred that the trial court's findings were clearly erroneous but dissented from the remand for extensive further proceedings. See id. She wanted to "remand with instructions the trial court enter a judgment permitting the move and establishing an appropriate visitation schedule for the two minor children and their [other parent]," the only real loose end left to wrap up. See id. at 774. Because the fifth justice, Justice Sandstrom, would have affirmed and dissented entirely for that reason, Chief Justice VandeWalle, who largely agreed with Justice Maring, reluctantly concurred "in the result reached by Justice Kapsner to reverse and remand to permit the trial court to apply the proper [legal] analysis . . . ." See id. at 773, 774. The Chief Justice explained he did so because, otherwise, there would not be the required constitutional "'concurrence of a majority of the judges.'" See id. The potential effect of rule 35(b) of North Dakota Rules of Appellate Procedure evidently was neither cited to nor considered by the Court.
432. The Explanatory Note to North Dakota Rules of Appellate Procedure rule 35(b) says: "Subdivision (b) is a restatement of former § 28-27-29." North Dakota Century Code section 28-27-29 originated in section 25 of an enactment of the 1887 session of Dakota Territory's legislature. That twenty-seven section act provided "the Method of Appeals to the Supreme Court of the Territory of Dakota." 1887 Dakota Laws ch. 20, § 25, at 61. The state's 1891 legislative assembly adopted a very similar enactment "Regulating Appeals In Civil Actions," consisting of 29 sections. 1891 N.D. Laws ch. 120, at 304-11. It contained virtually identical wording in section 26. That language became section 5628 of the 1895 Revised Codes of North Dakota, entitled "Power of Court. Rehearing. What clerk transmits," and then became section 7844 of the 1913 Compiled Laws of North Dakota. The first and fourth sentences of North Dakota Rules of Appellate Procedure 35(b) are nearly verbatim from these enactments.
The 1927 legislative assembly amended this "Power of Court" section to add two sentences authorizing the Court to remand, "without relinquishing jurisdiction of the appeal," for determination of an issue that "has not been tried, or if tried has not been determined," if "it is necessary or desirable to a proper disposition on appeal." 1927 N.D. Laws ch. 214, § 1, at 369-70. Those two sentences became sentences two and three of North Dakota Century Code section 28-27-29 on "Power of Supreme Court on Appeal," and then later became sentences two and three of North Dakota Rules of Appellate Procedure rule 35(b).
The "necessary or desirable" standard for directing remand "without relinquishing jurisdiction," in conjunction with the emphasis in the concluding sentence of Rule 35(b) on entering a "final judgment" on remand, implies a strong presumption in favor of finality in an appellate disposition whenever possible. For nearly 80 years, these provisions were so interpreted and applied in conjunction with the direction of Newman's law to "render final judgment" in all appeals from non-jury judgments "according to the justice of the case." That long tradition should continue to shape today's interpretation of the "final judgment" language in North Dakota Rules of Appellate Procedure rule 35(b).
433. Note that the second sentence of North Dakota Rules of Appellate Procedure rule 35(b) contemplates a remand to determine a "necessary" issue would be "without relinquishing jurisdiction of the appeal."