TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 52, N.D.R.Civ.P., Findings by Court
The Committee recently approved amendments to N.D. Sup. Ct. Admin. R. 13 -- Judicial Referees. These amendments are now pending before the Supreme Court. One major change by the Committee to Admin. Rule 13 was in the standard for a district court's review of a referee's findings -- this was shifted from clearly erroneous to de novo.
Comments made during the Committee's discussion of the Admin. Rule 13 amendments suggested that it was inappropriate for both the district court and the Supreme Court to apply a de novo standard of review in juvenile cases where a referee's decision was challenged. Justice Neumann has previously argued that it is inconsistent for the Court to apply a de novo standard of review to findings in juvenile cases and a clearly erroneous standard in other civil cases. Interest of D.Q., 2002 N.D. 188 (Neumann, J., concurring).
The Supreme Court decided in In re J.Z., 190 N.W.2d 27 (N.D. 1971), that N.D.C.C. § 27-20-56 requires the court to review juvenile cases under a de novo standard. See Interest of M.L., 239 N.W.2d 289 (N.D. 1976) (explaining standard). Justice Neumann has argued that the language of the statute does not require application of a de novo standard in juvenile cases, and he has urged the court to apply a clearly erroneous standard of review in juvenile matters. Interest of C.R.C., 2001 N.D. 83 (Neumann, J., concurring).
The Supreme Court has not acted on Justice Neumann's suggestions -- however, it does want the Committee to discuss the issue of whether the clearly erroneous standard should be applied when a court's findings are reviewed in juvenile cases.
The pertinent language of N.D.C.C. § 27-20-56(1) provides that: "The appeal must be heard by the supreme court upon the files, records, and minutes or transcript of the evidence of the juvenile court, giving appreciable weight to the findings of the juvenile court." This section became law in 1969, two years before N.D.C.C. § 28-27-32 was repealed. N.D.C.C. § 28-27-32 required the supreme court to "try anew" all questions of fact decided in bench trials.
Justice Neumann suggests that the Supreme Court interpreted N.D.C.C. § 27-20-56 to require de novo review because this is the standard that the Court had consistently applied in juvenile cases prior to the repeal of N.D.C.C. § 28-27-32. See Interest of C.R.C., 2001 N.D. 83 (Neumann, J., concurring). Justice Neumann's disagrees with the Court's conclusion in In re A.N., 201 N.W.2d 118 (N.D. 1972), that the "clear wording" of N.D.C.C. § 27-20-56 requires application of the de novo standard.
In A.N., the Court devoted considerable time to analyzing the issue of whether Rule 52's clearly erroneous standard should apply to juvenile cases. See A.N., 201 N.W.2d at 120-121. The A.N. Court concluded that "there are several special proceedings," including juvenile proceedings, in which Rule 52 is "inapplicable." Since A.N., the applicability of the modified trial de novo standard in juvenile proceedings has essentially been unquestioned (except by Justice Neumann). See D.Q., 2002 N.D. 188, ¶ 9.
One important issue that should be considered is the impact of the 1976 amendments to Article VI of the North Dakota Constitution on this question. Under Article VI, Section 3 of the Constitution (as amended) the Court may follow statutory procedural rules, but the Court may also supersede those rules with its own, court promulgated, rules. See S.H. v. Petersen, 401 N.W.2d 694 (N.D. 1987). The Art. VI amendments took effect September 7, 1976, after A.N. and the other key cases on modified de novo standard of review in juvenile cases had been decided.
Because the Court's authority to promulgate rules prior to the 1976 amendments was statutory, the Court had no authority prior to 1976 to supersede statutory rules of procedure. See 1953 N.D. Laws ch. 201, § 1, at 322-23 (codified at N.D. Cent. Code § 27-02-11, repealed by 1981 N.D. Laws ch. 317, § 1, at 855). The A.N. Court, therefore, was correct in concluding that the Court's rules could not trump special statutory rules in proceedings where such rules had been imposed. This, however, is no longer the case -- as discussed above, the Court now has the power under Art. VI, § 3, to supersede statutory rules if it opts to do so.
Proposed amendments to N.D.R.Civ.P. 52 are provided for the Committee's review. The proposed amendments specify that findings of fact in a juvenile matter cannot be overturned unless clearly erroneous.