TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 44, N.D.R.App.P., Case Involving a Constitutional Question When the State is Not a Party
Rule 44 is now listed as "reserved for future use." A new Rule 44 is proposed that would set out guidelines for handling of cases involving constitutional questions when the state is not a party.
Fed.R.App.P. 44 has long included guidelines for handling cases involving a constitutional challenge to a federal statute. In 2002, the federal rule was amended to include guidelines for addressing constitutional challenges to state statutes.
In North Dakota, notification of the Attorney General is required when a constitutional challenge is made to a state statute. See Hanson v. State, 2006 ND 139, 717 N.W.2d 541. This general rule has been established by case law and derives from a narrower rule found in statute. See N.D.C.C. § 32-23-11.
The proposed new rule is based on the language of Fed.R.App.P. 44(b) and would be consistent with existing North Dakota requirements. The Committee may wish to discuss whether it would be more appropriate for the rule to be made part of the Rules of Court (instead of an appellate rule) so that the notice to the Attorney General would be required by rule before cases reached the appellate level.
A copy of the proposed new Rule 44 is attached.