TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 21, N.D.R.Crim.P., Transfer from the County or Municipality for Trial; Rule 22, N.D.R.Crim.P., Time of Motion to Transfer
The Committee reviewed and made changes to Rule 21 and Rule 22 at the January meeting. The Committee instructed staff to research the interplay between Rules 21 and 22 and the change of venue statutes and to report to the Committee on this issue so that the Committee could make additional changes to the rules, if necessary.
N.D.C.C. 27-05-26 allows a change of venue to a different county or district "in the manner provided by law." N.D.C.C. Ch. 29-03, "Local Jurisdiction of Public Offenses," explains where criminal prosecutions are to be venued on commencement, but it does not discuss changing venue.
N.D.C.C. Ch. 29-15, "Removal of Cause and Change of Judge," previously governed change of venue in criminal cases. Almost all of the statutes in Ch. 29-15 were either superseded by the adoption of Rule 21 or have been repealed since the adoption of Rule 21. Only N.D.C.C. 29-15-21 governing change of judge remains "active" in the chapter.
State v. Ellis, 2001 ND 84, 625 N.W.2d 544, is the most recent case where the North Dakota Supreme Court dealt extensively with the issue of change in venue in a criminal case. In Ellis, the Court relied solely on Rule 21 and case law interpreting Rule 21 in analyzing the change of venue issue. The court's approach in Ellis is consistent in its approach in venue cases since the 1970s. See, e.g., Olson v. North Dakota District Court, 271 N.W. 574 (N.D. 1978); State v. Smaage, 547 N.W.2d 916 (N.D. 1996).
Based on the materials above, it appears that Rule 21 governs change of venue in criminal actions when the change is based on one of the reasons covered by the rule. Rule 21 and 22, with the changes made by the Committee at the January meeting, are attached if the Committee would like to review them and make additional changes.