TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Writ Rule
At its September meeting, the Committee decided it wanted to begin work on extracting the procedural elements from North Dakota's extraordinary writ statutes and drafting new rules to govern writ procedure. Staff has prepared an open-ended draft rule, N.D.R.Ct. 8.10, so that the Committee can work with ideas to be incorporated into an eventual writ rule.
When the North Dakota Constitution was amended in 1976, Section 87 placed authority to "promulgate rules of procedure" with the Supreme Court. In Arneson v. Olson, 270 N.W.2d 125, 131 (N.D. 1978) the Court said that "procedure" includes "pleading and evidentiary matters." The authorities the Court relied on in setting out this partial definition also included matters relating to "practice" as part of "procedure." See Dyer v. Keefe, 97 R.I. 418, 423, 198 A.2d 159, 161 (1964); Hunt v. Rosenbaum Grain Corporation, 355 Ill. 504, 511, 189 N.E. 907, 911 (1934); People v. Aguinaldo, 3 Cal.App.2d 254, 256, 39 P.2d 505, 506 (1934). The Dyer court said that "procedure" is "the machinery for carrying on the suit."
As a prerequisite to identifying the procedural components of North Dakota's writ statutes, the Committee will have to agree on a definition of "procedure." In doing the preliminary work included here, staff has used the definition of "procedure" discussed in the previous paragraph.
Chapter 32-32, N.D.C.C., is the preliminary chapter on special proceedings and lays down basic ground rules for proceedings related to extraordinary writs.
Section 32-32-01, N.D.C.C., is the definition section. It provides that: "'Special proceedings' within the meaning of this chapter shall include the writs of certiorari, mandamus, and prohibition." Under the definition discussed above, this section does not appear to have any procedural elements. The writs mentioned in this statute are included in paragraph (a)(1) of the draft writ rule. It is anticipated that additional writs may be added as the Committee continues work on the rule.
Section 32-32-02, N.D.C.C., discusses parties to writ proceedings. It provides that: "When a special proceeding is prosecuted by one having a special interest in the proceeding, it shall not be necessary for the state to be joined as plaintiff therein, but the person prosecuting the same shall be known as the plaintiff and the adverse party as the defendant." This section appears to be wholly procedural as it deals with matters associated with "pleadings". Most of the language of this section also appears to be unnecessary. The section as a whole could possibly be superseded by proposed paragraph (a)(2) of the draft writ rule or other language as devised by the Committee.
Section 32-32-03, N.D.C.C., defines judgments, motions and orders in special proceedings. It provides that: "A judgment in a special proceeding is the final determination of the rights of the parties therein. The definitions of a motion and an order in a civil action are applicable to similar acts in a special proceeding." The section's definition of "judgment" is the same as the general definition of "judgment" developed by the Court and seems to be a statement of substantive law. Motions and orders, however, are elements of procedure. Paragraph (a)(3) of the draft rule specifies that the Rules of Civil Procedure or the Rules of Appellate procedure govern writ proceedings, thus superseding this sections instructions on motions and orders.
Section 32-32-04, N.D.C.C., discusses issuance of a writ "in vacation." It provides that: "Writs of certiorari, mandamus, and prohibition may be issued by a judge of the district court in vacation, and when issued by a judge of the district court may be made returnable and a hearing held thereon in vacation." What this section appears to mean is that a court can issue a writ when the court is not in session or after a term of court has ended. Under current procedure, the term of court is continuous and a court's power is not dependent on whether court is in session. Therefore, this section is obsolete. The section would be superseded by paragraph (a)(3) of the draft rule.
Section 32-32-05, N.D.C.C., discusses rules of practice for writ proceedings. It provides that: "Except as otherwise provided in chapters 32-33, 32-34, and 32-35, the provisions of title 28 are applicable to and constitute the rules of practice in the proceedings mentioned in this chapter." Because "practice" is a component of procedure, and because the rules of procedure (rather than title 28) now govern procedure, this section is obsolete. It would be superseded by paragraph (a)(3) of the draft rule.