TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 8.10, N.D.R.Ct., Writs
The Committee has worked on developing a procedural rule for writs during its past three meetings. At its April meeting, the Committee's consensus was that the proposed writ rule should be limited to setting out a writ application procedure that would simplify the process of seeking relief by writ. The Committee also decided that, in order to formulate such a writ application procedure rule, it would need to understand the purpose of each of the writs the rule would cover and the current application procedure for these writs.
The writs the Committee has discussed so far, and those the Committee has indicated that the application procedure rule should to apply to, fall into the category of prerogative writs. Prerogative writs were created to amend "misdemeanors extra judicial," and the right to issue them belonged first only to the King of England, then to specific courts. These are the prerogative writs:
Habeas Corpus orders the release of persons illegally arrested or confined;
Certiorari orders the record of a proceeding of a lower body to be certified and removed to a higher court for a jurisdictional inquiry;
Prohibition commands that a proceeding or action be stopped;
Mandamus commands that an official perform an act;
Quo warranto orders an inquiry into the authority under which one holds an office or an official franchise;
Ne exeat regno forbids its subject from leaving the jurisdiction of the court.
All of these writs, except ne exeat, are part of North Dakota's statutes in one form or another (ne exeat is not mentioned in the code and is only mentioned once in passing in an old Supreme Court case). The writ statutes were incorporated into Dakota Territory law when the territorial legislature adopted the civil and criminal procedure sections of the Field Code.
The Field Code statutes were developed in New York and were a product of the mid-19th Century codification movement, which sought to clarify the law by setting it out in written statutes that any citizen could refer to and understand. See William B. Fisch, Civil Code: Notes for an Uncelebrated Centennial, 43 N.D.L.R. (1967). Mr. Hoffman made a valid point at the April meeting when he suggested that the writ statutes were created by the legislature to give the people a way to gain relief from improper court action -- at the very least, they set out a road map anyone can follow. The Committee may wish to consider whether creating a new and separate writ application rule would create confusion for people looking to the statutes for guidance.
The writ statutes have not been significantly altered since territorial times. However, the Supreme Court's decisions suggest that the writ statutes were supplanted when the North Dakota Constitution became effective because ultimate authority for courts to issue writs comes from the Constitution. Specifically, Article VI, Section 2 of the Constitution gives the Supreme Court authority "to issue, hear and determine such original and remedial writs as may be necessary to properly exercise its jurisdiction." Likewise, Article VI, Section 8 of the Constitution gives the district courts authority "to issue such writs as are necessary to the proper exercise of its jurisdiction."
Because the Constitution gives the courts ultimate authority to issue necessary writs, North Dakota's writ statutes could reasonably be characterized as completely procedural, since any "substantive" element they might contain is redundant. This essentially is the conclusion the Supreme Court reached about the quo warranto statutes in State ex rel. Sathre v. Roberts, 269 N.W. 913 (N.D. 1936) -- the Roberts court said the statutes merely represented a "cumulative and additional procedure." As the Committee knows, Article VI, Section 3 of the Constitution (as interpreted by the Court) allows the Court to follow statutory procedural rules, but it also allows the Court to supersede those rules with its own, court promulgated, rules. See S.H. v. Petersen, 401 N.W.2d 694 (N.D. 1987).
Because the courts have constitutional authority to issue writs, and because the Supreme Court has constitutional authority to promulgate rules of procedure, it does not seem that the Committee needs to be overly constrained by the procedural details set out in the writ statutes as it works to develop a writ application procedure rule.
The statutory writ application procedure is not as complicated as it seems at first glance. In general:
-- the type of relief offered by the given type of writ is defined;
-- to apply for relief, an applicant need only submit a verified petition explaining why such relief would be justified;
-- the court that receives the application then has discretion to issue a writ.
Issuing a writ, however, is not the same as granting relief. Instead, when the writ is issued, this prompts an inquiry. In general:
-- the writ is served and a "return" (response) is requested;
-- the court considers the return and may hold some sort of hearing;
-- if the matter involves a challenged activity or proceeding, issuance of the writ and commencement of the inquiry will suspend the activity or proceeding during the inquiry;
-- after the inquiry is complete, the court can grant (or deny) final relief.
As can be seen the accompanying material on the different prerogative writs, the Supreme Court has found that these writs generally are applicable to only a very narrow range of matters. A review of the Supreme Court's writ cases suggests that mandamus and prohibition are the types of prerogative writ still sought on a regular basis.
Separate memos on the specific writ types follow. These memos provide information on the sort of remedies each writ can provide, the circumstances under which relief may be granted, and the statutory application procedure for each type of writ. A draft writ procedure rule is also attached. The goal in drafting the proposed rule was to keep it as simple as possible.
A question the Committee will need to answer if it chooses to recommend adoption of the proposed rule is what statutes will be superseded by the rule. As discussed above, it is arguable that all the writ statutes are procedural and therefore subject to being superseded by a procedural rule covering the same ground. On the other hand, Supreme Court caselaw suggests that the Court is willing to allow the writ statutes to continue to exist as a "cumulative and additional procedure." The approach taken in the draft rule is to declare only the writ statutes specifically dealing with application procedure to be superseded by the rule -- because there are not many writ statutes that deal strictly with application procedure, the list of superseded statutes is short.