TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 2.1, N.D.R.App.P., Mental Health Appeals Under Chapter 25-03.1, North Dakota Century Code
Mark Hanson and Tom Goven requested an amendment to Rule 2.1 that would have lengthened the amount of time allowed to file a notice of appeal in mental health cases in which the district court denied a treatment order stay.
The proposal was analyzed by the Supreme Court Clerk's Office and the Chief Justice. Neither of them thought it was consistent with existing law. The Chief Justice suggested that the proposal stemmed from a misunderstanding about statutory requirements for expedited mental health appeals.
Under N.D.C.C. 25-03.1-29, "[p]ending appeal, the order appealed from shall remain in effect, unless the supreme court determines otherwise." This provision gives the Supreme Court sole authority to grant stays of mental health orders pending appeal.
In practice, parties seeking to stay treatment orders will request a stay from the district court. If the district court grants a stay, this preserves the status quo during the 30 days allowed for filing a notice of appeal. The practice of obtaining stays of appealable mental health orders from the district court may not be consistent with N.D.C.C. 25-03.1-29, but the Supreme Court does not have jurisdiction over a matter until the notice of appeal is filed.
If a party is denied a stay by the district court, the party may file a notice of appeal and motion for stay from the Supreme Court. The party then must conform to the accelerated briefing schedule in Rule 2.1(e). The accelerated time line faced by the party who is denied a stay by the district court is the problem that the Hanson/Goven proposal sought to address.
Under N.D.C.C. 25-03.1-29, however, once the notice of appeal is filed, the hearing on the appeal must be conducted within 14 days. The accelerated briefing schedule in Rule 2.1(e) is necessary to assure that the hearing is conducted within the statutory deadline. Consequently, a party who cannot obtain a stay from the district court simply must conform to the accelerated scheduled in Rule 2.1 (e).
In most cases, the district court does stay the treatment order and parties have the full 30 days to file a notice of appeal and prepare briefs. The Clerk's Office and the Chief Justice, however, have observed that some parties who obtain a stay from the district court fail to request a stay on appeal from the Supreme Court. As discussed above, N.D.C.C. 25-03.1-29 gives the Supreme Court sole authority to grant stays pending appeal.
To eliminate the problem of parties continuing to rely on district court stays after filing a notice of appeal, a proposed amendment to Rule 2.1(c) is attached that would make clear that parties who have obtained a stay from the district court must request a stay from the Supreme Court when the notice of appeal is filed.
The Committee may wish to discuss whether additional amendments to Rule 2.1 would be appropriate to limit party reliance on district court stays.