M E M O
TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 21, N.D.R.App.P., Supervisory Writs
The Committee has directed staff to prepare a draft rule on supervisory writ procedure.
Article VI, Sec. 2 of the North Dakota Constitution allows the Supreme Court "to issue, hear, and determine such original and remedial writs as may be necessary to properly exercise its jurisdiction." Section 27-02-04, N.D.C.C., further provides that "in its superintending control over inferior courts" the Court "may issue such original and remedial writs as are necessary to the proper exercise of such jurisdiction." It is from these authorities that the Court derives the power to issue supervisory writs.
The Supreme Court's recent statements of the prerequisites for issuance of a supervisory writ have been terse. The Court has stated that its authority to issue a supervisory writ is discretionary--no party has the right to have such a writ issue. Dimond v. State, 1999 ND 228, ¶ 6; 603 N.W.2d 66. The Court has stated that it will issue supervisory writs "only to rectify errors and prevent injustice when no adequate alternative remedies exist." Reems v. Hunke, 509 N.W.2d 45, 47 (N.D. 1993). The Court issues supervisory writs "rarely and cautiously" and only in "extraordinary cases." Roe v. Rothe-Seeger, 2000 ND 63, ¶ 5; 608 N.W.2d 289
The Supreme Court has long recognized the supervisory writ. The Court discussed the writ in detail in State ex rel. Red River Brick Corp. v. District Court, 24 N.D. 28; 138 N.W. 988 (1912). The Red River court explained that the Supreme Court was granted supervisory power over inferior courts "so there might be some method by which the harmonious working of our judicial system could be insured, and to meet emergencies, and where other relief provided is inadequate or incomplete." Id. at 990.
The Red River court stressed that a litigant's main avenue of relief from a trial court decision is to appeal, and that the Court's supervisory power should only be exercised in rare cases:
We are satisfied that the power of superintending control is very broad, but in line with the authorities cited, and many more which have been examined, we feel constrained to hold that this power should not be exercised except in case of emergency or exigency, or when made necessary by the lack of other adequate remedy, or when the ends of justice imperatively demand it. It has been repeatedly held that the primary function of this court is the consideration of appeals. If it was intended by the Constitution framers that this court should exercise its superintending power over the inferior courts at the behest of litigants, for the purpose of reviewing and revising their decisions, there would have been no occasion to make a separate specification of appellate power, as was done. The appellate jurisdiction of this court is the one which must be sought by defeated litigants seeking relief, in all cases where it is applicable and furnishes adequate and speedy protection to them. Cases may well be imagined, and they do sometimes arise, where no other provision has been made, or where an appeal would be partially or wholly ineffectual by reason of the exigencies of the situation. It was entirely appropriate that provision should be made for such emergencies, and this has been done by granting the power which we are considering.
The clerk's office currently directs petitioners who seek to apply for supervisory writs to submit all supporting material at the time they request the writ. Petitioners also need to provide and original and seven copies of their petition to the Court. Otherwise, petitioners are advised to follow the same procedure as a person making a motion to the Court.