Under N.D.C.C. 32-22-01, any person who is "imprisoned or restrained" may "prosecute a writ of habeas corpus to inquire into the cause of such imprisonment or restraint." The statute also allows such a person to "obtain relief from such imprisonment or restraint if it is unlawful."
The scope of habeas relief in North Dakota is not wide because the North Dakota Supreme Court has limited its use in criminal actions. A habeas application will not be considered from a party who has potential remedies available under the Post Conviction Procedure Act. See Smith v. Satran, 295 N.W.2d 118 (N.D. 1980). This is because the Post Conviction Procedure Act was intended to replace the habeas statutes in criminal matters. McGuire v. Warden of State Farm, 229 N.W.2d 211 (N.D. 1975). Therefore, the habeas statutes generally will apply only in civil matters.
Habeas relief may only be granted to persons who are actually in custody or otherwise restrained, not to persons who are merely facing the possibility of incarceration. Green v. Wiese, 78 N.W.2d 776 (N.D. 1956).
Habeas was a traditional tool in child custody cases, but the Supreme Court has decided that its continued use in such matters is generally inappropriate except in cases involving "child snatching." Mansukhani v. Pailing, 300 N.W.2d 847 (N.D. 1980).
Habeas relief is available to a person incarcerated for civil contempt, such as for non-payment of alimony or child support. See Thorlackson v. Wells, 297 N.W.2d 326 (N.D. 1973); Schmidt v. Thompson, 347 N.W.2d 315 (N.D. 1984).
The statutory application procedure for a writ of habeas corpus is set out in N.D.C.C. 32-22-03.
Under the statute, a writ application must be made by petition, verified by oath or affirmation. The petition may be made by the person for whose relief habeas is sought or by some person in that person's behalf.
The application must specify that the person in whose behalf the writ is applied for is imprisoned or restrained and name:
the officer or person by whom the person is confined or restrained;
the place where the person is confined or restrained;
all parties involved in the confinement if they are known, or describing them if they are not known;
the cause or reason for such confinement or restraint according to the knowledge or belief of the party verifying the petition.
If the confinement or restraint is by virtue of any warrant, order, or process, a copy must be attached. In the alternative, there must be an explanation of why no copy could be attached. If the confinement or restraint is alleged to be illegal, the petition must specify the illegality.
If a writ of habeas corpus is issued, an inquiry commences: the writ is served (N.D.C.C. 32-22-09); a return/response is submitted (N.D.C.C. 32-22-11); and a hearing, at which the confined person generally appears, is held (N.D.C.C. 32-22-14). Additional evidence may be submitted by the petitioner in response to the return. N.D.C.C. 32-22-15.
N.D.C.C. CHAPTER 32-22:
§ 32-22-01. Persons restrained may prosecute the writ
Every person imprisoned or restrained of the person's liberty under any pretense whatever may prosecute a writ of habeas corpus to inquire into the cause of such imprisonment or restraint and thereby, except in the cases specified in section 32-22-02, obtain relief from such imprisonment or restraint if it is unlawful.
§ 32-22-02. Who not entitled to relief
The person in whose behalf the application is made is not entitled to relief from imprisonment or restraint under a writ of habeas corpus, if the time during which such person may be detained legally in custody has not expired, whenever it appears:
1. That the person is detained in custody by virtue of process issued by any court or judge of the United States in a case where such court or judge has exclusive jurisdiction; or
2. Except as provided in section 32-22-17, that the person is detained in custody by virtue of the final order or judgment of any competent court of criminal jurisdiction or of any process issued upon such order or judgment
§ 32-22-03. Application for writ -- Contents -- Verification
Application for the writ must be made by petition signed either by the person for whose relief it is intended or by some person in that person's behalf, and must specify:
1. That the person in whose behalf the writ is applied for is imprisoned or restrained of the person's liberty, the officer or person by whom the person is so confined or restrained, and the place where, naming all the parties if they are known, or describing them if they are not known.
2. The cause or pretense of such confinement or restraint according to the knowledge or belief of the party verifying the petition.
3. If the confinement or restraint is by virtue of any warrant, order, or process, a copy thereof shall be annexed, or it shall be averred because such person was removed or concealed before application, a demand of such copy could not be made, or that such demand was made and the legal fees therefor tendered to the officer or person having such person in custody, and that such copy was refused.
4. If the imprisonment is alleged to be illegal, the petition shall state in what the illegality consists.
The petition must be verified by the oath or affirmation of the person making the application.
§ 32-22-04. By what court application granted
The writ of habeas corpus must be granted, issued, and made returnable as hereinafter stated:
1. The writ must be granted by the supreme court, or any judge thereof, upon petition by or on behalf of any person restrained of the person's liberty within this state. When granted by the court, it, in all cases, shall be issued out of and under the seal of the supreme court, and may be made returnable, either before the supreme court, or before the district court or any judge of the district court; or
2. The writ may be granted, issued, and determined by the district courts and the judges thereof upon petition by or on behalf of any person restrained of the person's liberty in their respective districts.
When application is made to the supreme court, or to a judge thereof, proof by the oath of the person applying or other sufficient evidence shall be required that the judge of the district court having jurisdiction by the provisions of subsection 2 is absent from the judge's district or has refused to grant such writ, or for some cause to be specially set forth, is incapable of acting, and if such proof is not produced the application shall be denied.
§ 32-22-05. When court must grant the writ
The court authorized to grant the writ to whom a petition therefor is presented, if it appears that the writ ought to issue, must grant the same without delay, and the writ shall not be denied for any informality in the petition or for any want of matters of substance, if the same can be supplied, and the court to whom application is made, must point out the matters wanting and direct the manner of supplying the same.
§ 32-22-06. Application to supreme court for writ of habeas corpus
When, upon application to the supreme court for a writ of habeas corpus, it is apparent that no necessity exists for its immediate issuance, and a district court has entertained an application for the writ, and, upon hearing, quashed it, the supreme court will require all the papers, including the application and supporting affidavits, the return and supporting affidavits, and the order of such lower court, to accompany the application made to said court. In emergency cases, the foregoing requirement may be waived.
§ 32-22-07. Direction of writ
The writ must be directed to the person having custody of or restraining the person on whose behalf the application is made, and must command that person to have the person in custody or restraint personally appear before the court before whom the writ is returnable, at a place therein specified, immediately or at some specified time, regard being had to the circumstances and the distance to be traveled.
§ 32-22-08. Writ of habeas corpus -- Form
Every writ of habeas corpus issued under the provisions of this chapter shall be in substantially the following form:
STATE OF NORTH DAKOTA
The state of North Dakota to the sheriff of etc, (or to ):
You are hereby commanded to have by you imprisoned and detained, as is alleged, together with the time and cause of such imprisonment and detention, by whatever name the said shall be called or charged, before , judge of the district court, (or before the district or supreme court, as the case may be), at (naming the place), on (naming the date), (or immediately upon the receipt of this writ), to do and receive what shall then and there be considered concerning the said , and have you then and there this writ.
Such writ must be endorsed "By the Habeas Corpus Act", and if issued by the court, it shall be under the seal of the court, and if by the judge, it shall be under the judge's hand.
§ 32-22-09. Manner of serving the writ
Whenever the writ is directed to the sheriff or other ministerial officer of the court out of which it is issued, it must be delivered by the clerk or by such person as it may be entrusted to, without delay, as other writs are delivered to such sheriff or other officer for service, or it may be left with the jailer, keeper, or other person under such sheriff or other officer in charge of and at the jail or place where the person seeking the writ may be imprisoned or restrained. If it is directed to any other person, it may be delivered to the sheriff or the sheriff's deputy and be by the sheriff or sheriff's deputy served upon such person by delivering the same to such person without delay. If the person to whom the writ is directed cannot be found or refuses admittance to the officer or person serving or delivering such writ, it may be served or delivered by leaving it at the residence of the person to whom it is directed, or by affixing it to some conspicuous place on the outside either of that person's dwelling house or of the place where the party is confined or under restraint. In any case the court issuing the writ, at its discretion, may authorize any person to serve and deliver it by an entry signed by the judge thereon to the following effect: "I hereby authorize to serve the within writ", and service made by such person in the manner designated in this section shall be due and lawful service.
§ 32-22-10. Penalty if officer refuses to execute and return writ
If the person to whom the writ is directed refuses, after service, to obey the same, the court, upon affidavit stating such facts, must issue an attachment against such person, directed to the sheriff or coroner, commanding the sheriff or coroner forthwith to arrest such person and bring such person immediately before such court, and upon being so brought that person must be committed to the jail of the county until that person makes due return to such writ or is otherwise legally discharged. The person disobeying such writ also shall forfeit to the person imprisoned or restrained a sum not exceeding five hundred dollars to be recovered in a civil action by the person restrained. If the person disobeying the writ is an officer, that officer shall be incapable of holding or executing that office.
§ 32-22-11. What the return must set forth
The person upon whom the writ is served must state in the person's return, plainly and unequivocally:
1. Whether that person has or has not the party in custody or under power or restraint.
2. If that person has the party in custody or power or under restraint, that person must state the authority and cause of such imprisonment or restraint.
3. If the party is detained by virtue of any writ, warrant, or other written authority, a copy thereof must be annexed to the return and the original produced and exhibited to the court on the hearing of such return.
4. If the person upon whom the writ is served had the party in the person's custody or power or under the person's restraint, at any time prior or subsequent to the date of the writ of habeas corpus, but has transferred such custody or restraint to another, the return must state particularly to whom, at what time and place, for what cause, and by what authority such transfer took place.
5. The return must be signed by the person making the same, and, except when such person is a sworn public officer and makes such return in an official capacity, it must be verified by the officer's oath or affirmation.
§ 32-22-12. Party restrained must be brought into court -- Exception
The person to whom the writ is directed, if it is served, must bring the party in custody or under restraint, according to the command of the writ, except in cases specified in section 32-22-13.
§ 32-22-13. When party need not be brought
When from sickness or infirmity of the person directed to be produced such person cannot be brought before the court without danger, the person in whose power or custody such person is may state that fact in the return to the writ, verifying the same by affidavit. If the court is satisfied of the truth of such return and the return to the writ is otherwise sufficient, the court may proceed to decide on such return and to dispose of the matter as if such party had been produced on the writ, or the hearing thereof may be adjourned until such party can be produced.
§ 32-22-14. When hearing must be had
The court before whom the writ is returned, immediately after the return or within five days thereafter, must proceed to hear and examine the return, and such other matters as may be submitted properly to its consideration.
§ 32-22-15. Return may be controverted -- Proofs
The party brought before the court on the return of the writ may deny or controvert any of the material facts or matters set forth in the return, or except to the sufficiency thereof, or allege any fact to show either that the imprisonment or detention is unlawful or that the party is entitled to be discharged. The court thereupon must proceed in a summary way to hear such proof as may be produced against such imprisonment or detention, or in favor of the same, and to dispose of such party as the justice of the case may require, and has full power and authority to require and compel the attendance of witnesses, by process of subpoena and attachment, and to do and perform all other acts and things necessary to a full and fair hearing and determination of the case. The court may allow the return to be amended according to the facts of the case, whenever it may be deemed necessary.
§ 32-22-16. When person restrained must be discharged
If no legal cause is shown for the imprisonment or restraint or for the continuation thereof, the court must discharge the party from the custody or restraint under which the party is held.
§ 32-22-17. Causes for discharge of person restrained
If it appears on the return of the writ that the party is in custody by virtue of process from any court of this state, or any judge or officer thereof, such person may be discharged in any of the following cases, subject to the restrictions of section 32-22-02:
1. When the jurisdiction of such court or officer has been exceeded.
2. When the imprisonment was at first lawful, but by some act, omission, or event which has taken place afterward, the party has become entitled to a discharge.
3. When the process is defective in some matter of substance required by law rendering such process void.
4. When the process, though regular in form, has been issued in a case not allowed by law.
5. When the person having the custody of the party is not the person allowed by law to detain the party.
6. When the process is not authorized by any order or judgment of any court nor by any provisions of law.
7. When a party has been committed on a criminal charge without reasonable or probable cause.
8. When the process appears to have been obtained by false pretense or bribery.
§ 32-22-18. Informal commitment from district judge
If the person is committed to prison, or is in custody of an officer on a criminal charge, by virtue of a warrant of commitment of a district judge, the person must not be discharged on the ground of any mere defect of form in the warrant of commitment.
§ 32-22-19. Procedure when person appears to be guilty
If it appears to the court, by affidavit or otherwise, or upon inspection of the process or warrant of commitment and proceedings as may be shown to the court, that the party is guilty of a criminal offense or ought not to be discharged, such court, although the charge is defectively or not substantially set forth in such process or warrant of commitment, must cause the complainant or other necessary witness to be subpoenaed to attend at such time as ordered, to testify before the court, and upon the examination the judge may discharge such party, admit the party to bail if the offense is bailable, or recommit the party to custody, as may be just and legal.
§ 32-22-20. Habeas corpus to give bail
Whenever a person is imprisoned or detained in custody on a criminal charge, for want of bail, such person is entitled to a writ of habeas corpus for the purpose of giving bail, upon averring that fact in such person's petition, without alleging that the person is confined illegally. Any judge in or out of the court in which the judge is authorized to act may take an undertaking of bail from any person who has been committed on a criminal charge, when brought before the judge on a writ of habeas corpus, as in other cases, if the offense is bailable, and file the undertaking in the proper court.
§ 32-22-21. Procedure when person not entitled to discharge
If a party brought before the court on the return of the writ is not entitled to a discharge, and is not admitted to bail or bailed when allowable, the court must remand the party to custody, or place the party under the restraint from which the party was taken, if the person under whose custody or restraint the party was is legally entitled thereto.
§ 32-22-22. Prisoner may be ordered to custody of proper officer
In cases where any party is held under illegal restraint or custody, and any other person is entitled to the custody or restraint of such party, the court may order such party to be committed to the custody or restraint of such person as by law is entitled thereto.
§ 32-22-23. How person disposed of before judgment
Until judgment is given on the return, the court before whom any party may be brought on such writ may commit the party to the sheriff of the county or place the party in such care or under such custody as the party's age or circumstances may require.
§ 32-22-24. When notice of hearing must be given state's attorney
When it appears that the person in whose behalf a writ of habeas corpus is issued is held upon a criminal charge of any kind, notice of the time and place of the hearing upon the return shall be given to the state's attorney of the county where the offense arose if the person is within the state's attorney's county. In other cases, like notice shall be given to any person interested in continuing the custody or restraint of the party asking aid of such writ.
§ 32-22-25. Person taken out of county -- Expenses
Whenever the officer or person to whom a writ of habeas corpus is directed and delivered is required thereby to make return and take the person in whose behalf the writ is issued into a county other than the county in which such person is imprisoned or restrained, the court awarding the writ, at the court's discretion, may ascertain, and by an entry thereon specifying the amount, but not exceeding fifteen cents per mile, may require the payment or tender, at the time of delivering the writ, of the charges of obeying the same. However, in no case when an entry is not made can the payment or tender of such charges be demanded before the return of the writ in accordance with its direction.
§ 32-22-26. Writ must not be disobeyed
No writ of habeas corpus can be disobeyed for defect of form, if it sufficiently appears therefrom in whose restraint the party imprisoned or restrained is, the officer or person detaining the party, and the court before whom the party is to be brought.
§ 32-22-27. When person discharged may be arrested again
No person who has been discharged by the order of the court upon habeas corpus can be imprisoned again or kept in custody for the same cause, except in any of the following cases:
1. If the person has been discharged from custody on a criminal charge and is committed afterwards for the same offense, by legal order or process.
2. If, after a discharge for defect of proof, or for any defect of the process, warrant, or commitment in a criminal action, the accused is arrested again on sufficient proof and committed by legal process for the same offense.
3. If in a civil action the party has been discharged for any illegality in the order, judgment, or process and afterwards is imprisoned by legal process for the same claim for relief.
§ 32-22-28. How obedience to order of discharge enforced
Obedience to an order for the discharge of any person, granted pursuant to the provisions of this chapter, may be enforced by the court or judge issuing such writ, or granting such order, by attachment, in the same manner as hereinbefore provided for a neglect to make a return to a writ of habeas corpus, and the person guilty of such disobedience shall forfeit to the party aggrieved five hundred dollars, in addition to any special damages such party may have sustained.
§ 32-22-29. Person restrained in danger of being taken out of jurisdiction -- Warrant
When it appears to any court authorized by law to issue the writ of habeas corpus that anyone is illegally held in custody, confinement, or restraint, and that there is reason to believe that the person will be carried out of the jurisdiction of the court, or will suffer some irreparable injury before compliance with the writ of habeas corpus can be enforced, the court may cause a warrant to be issued reciting the facts and directed to the sheriff or coroner of the county, commanding the officer to take the person thus held in custody, confinement, or restraint, and forthwith bring that person before the court to be dealt with according to law. The court also may insert in the warrant a command for the arrest of the person charged with the illegal detention and restraint.
§ 32-22-30. Execution of warrant
The officer to whom such warrant is delivered must execute it by bringing the person therein named before the court who directed the issuing of such warrant, but if such warrant is issued by the supreme court or a judge thereof, upon the return of the warrant, the hearing and decision of the matter may be ordered by such court or judge to be had before the district court of the proper county or the judge thereof.
§ 32-22-31. Return to warrant -- Procedure
The person alleged to have such party under illegal confinement or restraint may make return to such warrant, as in case of a writ of habeas corpus, and the same may be denied, and like allegations, proofs, and trial thereupon may be had as upon a return to a writ of habeas corpus.
§ 32-22-32. When person must be discharged
If the party is held under illegal custody or restraint, the party must be discharged or be restored to the care or custody of the person entitled thereto.
§ 32-22-33. When writ may be served
Any writ or process authorized by this chapter may be issued and served on any day or at any time.
§ 32-22-34. Accused liberated for want of prosecution
If any person shall be committed for a criminal or supposed criminal matter and not admitted to bail, and shall not be tried on or before the second term of the court having jurisdiction of the offense, the prisoner shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner. If such court at the second term shall be satisfied that due exertions have been made to procure the evidence for and on behalf of the state, and that there are reasonable grounds to believe that such evidence may be procured at the third term, it shall have power to continue such case until the third term. If any such prisoner shall have been admitted to bail for a crime other than a capital offense, the court may continue the trial of said cause to a third term, if it shall appear by oath or affirmation that the witnesses for the state are absent, such witnesses being mentioned by name, and the court shown wherein their testimony is material.
§ 32-22-35. Writ not allowed to delay trial
To prevent any person from avoiding or delaying that person's trial, it shall not be lawful to remove any prisoner on habeas corpus under this chapter out of the county in which the prisoner is confined, within fifteen days next preceding the term of the court at which such person ought to be tried, unless it is to convey the prisoner into the county where the offense with which the prisoner stands charged properly is cognizable.
§ 32-22-36. Prisoners may not be removed from one prison to another -- Exceptions
Repealed by S.L. 1997, ch. 114, § 8.
§ 32-22-37. Penalty if judge refuses or delays writ
Any judge empowered by this chapter to issue writs of habeas corpus, who corruptly shall refuse to issue such writ when legally applied to, in a case where such writ may issue lawfully, or who, for the purpose of oppression, shall delay unreasonably the issuing of such writ, shall forfeit to the prisoner or party aggrieved a sum not exceeding five hundred dollars for every such offense.
§ 32-22-38. Removing or concealing prisoner to avoid writ
Anyone having a person in custody or under restraint, power, or control, for whose relief a writ of habeas corpus is issued, who, with intent to avoid the effect of such writ, shall transfer such person to the custody, or place such person under control of another, or shall conceal such person or change the place of such person's confinement with intent to avoid the operation of such writ, or with intent to remove such person out of this state, shall be guilty of a class C felony. In any prosecution under this section, it shall not be necessary to show that the writ of habeas corpus had issued at the time of the removal, transfer, or concealment therein mentioned, if it is proven that the acts therein forbidden were done with the intent to avoid the operation of such writ.
§ 32-22-39. Officer refusing prisoner copy of commitment -- Penalty
Repealed by S.L. 1985, ch. 169, § 3.
§ 32-22-40. Penalty for rearresting on same charge
Any person who, knowing that another has been discharged by order of a competent judge or tribunal on a writ of habeas corpus, shall arrest or detain that person again, contrary to the provisions of this chapter, for the same cause which was shown on the return of such writ, shall forfeit five hundred dollars for the first offense, and one thousand dollars for every subsequent offense.
§ 32-22-41. All penalties inure to use of party aggrieved
All the pecuniary forfeitures under this chapter shall inure to the use of the party for whose benefit the writ of habeas corpus issued, and shall be sued for and recovered with costs, in the name of the state, by any person aggrieved.
§ 32-22-42. Recovery of penalties no bar to civil action
The recovery of the penalties prescribed by this chapter shall be no bar to a civil suit for damages.
§ 32-22-43. Writ may issue for witness or for surrender of principal in discharge of bail -- Liability of jailer -- Costs
The supreme court or any district court within this state, or any judge of any such court, may issue a writ of habeas corpus to bring the body of any person confined in any jail in the state before such court or judge to testify or to be surrendered in discharge of bail. Where a writ is issued for any such purpose and the witness or principal sought is confined in any jail in a county other than the county in which such person is to be surrendered, or to which such person is to be removed, and where such writ is executed and returned by an officer to whom it is directed, the jailer from whose custody such person is taken shall be exonerated from liability for an escape if:
1. The court or judge issuing the writ shall make an order directing the return of such person to the custody of such jailer.
2. An attested copy of such order is delivered to the said jailer.
3. The officer to whom the writ was directed shall return such person pursuant to the said order after the execution of the writ.
The party praying out such writ of habeas corpus shall pay to the officer executing the same such reasonable sum for the officer's services as shall be adjudged by the court.
Under N.D.C.C. 32-33-01, a court may issue a writ of certiorari "when an officer, board, tribunal, or inferior court has exceeded the jurisdiction of such officer, board, tribunal, or inferior court." No writ can issue if there is an appellate or other "plain, speedy, and adequate remedy." A writ of certiorari may also issue when the court decides it is necessary "to prevent miscarriage of justice."
A court reviewing a proceeding on a writ of certiorari may only determine whether the lower court or other tribunal exceeded its jurisdiction it may not review the sufficiency of evidence or the findings of the lower tribunal. Peterson v. Points, 275 N.W. 867 (N.D. 1937). Certiorari review "cannot be extended further than to determine whether the inferior court, tribunal, or board has regularly pursued the authority given to it by statute." City of Fargo v. Annexation Review Commission, 123 N.W.2d 281 (N.D. 1963); see also City of Fargo v. Annexation Review Commission, 148 N.W.2d 338 (N.D. 1966); Kostelecky v. Engelter, 278 N.W.2d 776 (N.D. 1979).
As the Supreme Court established the very narrow limits of certiorari relief discussed above, it was making broader use of its supervisory powers as a way to grant relief in cases that did not fall within the bounds of certiorari. See Charles L. Crum, The Writ of Certiorari in North Dakota, 27 N.D. L.R. 271 (1951).
N.D.C.C. 32-33-02 requires that application for writ of certiorari be made by "the party beneficially interested" and "upon affidavit."
The court receiving the application:
may require a notice of the application to be given to the adverse party;
may grant an order to show cause why it should not be allowed; or
may grant the writ without notice.
If a writ is issued, the lower tribunal must certify the record of the challenged proceeding to the issuing court. N.D.C.C. 32-33-04. A review of the record and hearing follow. N.D.C.C. 32-33-09, 32-33-10.
N.D.C.C. CHAPTER 32-33:
WRIT OF CERTIORARI
§ 32-33-01. When and by whom writ of certiorari granted
A writ of certiorari shall be granted by the supreme court or district court when an officer, board, tribunal, or inferior court has exceeded the jurisdiction of such officer, board, tribunal, or inferior court, as the case may be, and there is no appeal, nor, in the judgment of the court, any other plain, speedy, and adequate remedy, and also when, in the judgment of the court, it is deemed necessary to prevent miscarriage of justice.
§ 32-33-02. How application made
The application must be made on affidavit by the party beneficially interested, and the court may require a notice of the application to be given to the adverse party, or may grant an order to show cause why it should not be allowed, or may grant the writ without notice.
§ 32-33-03. To whom directed
The writ may be directed to the inferior court, tribunal, board, or officer, or to any other person having the custody of the records or proceedings to be certified.
§ 32-33-04. Requisites of writ
The writ of certiorari shall command the party to whom it is directed to certify fully to the court issuing the writ, at a specified time and place, and to annex to the writ a transcript of the record and proceedings, describing or referring to them with convenient certainty, and a statement of other matter specified in and required by the writ, that the same may be reviewed by the court, and requiring the party in the meantime to desist from further proceedings in the matter to be reviewed.
§ 32-33-05. To officer whose term has expired
A writ of certiorari may be issued to and a return to a writ of certiorari may be made by an officer whose term of office has expired. Such an officer may be punished for a failure to make a return to the writ as required thereby, or to make a further return as required by an order for that purpose.
§ 32-33-06. Stay of proceedings
If a stay of proceedings is not intended, the words requiring the stay must be omitted from the writ. These words may be inserted or omitted in the sound discretion of the court, but if omitted, the power of the inferior court or officer is not suspended nor the proceedings stayed.
§ 32-33-07. Other proofs permitted if officer dies or return incomplete
If the officer or other person whose duty it is to make a return dies, absconds, or moves from the state, or becomes insane after the writ is issued and before making a return, or after making an insufficient return, and it appears that there is no other officer or person from whom a sufficient return can be procured by means of a new writ, the court in its discretion may permit affidavits or other written proofs relative to the matters not sufficiently returned to be produced and may hear the case accordingly. The court also in its discretion may permit either party to produce affidavits or other written proofs relative to any alleged error of fact or any other question of fact which is essential to the jurisdiction of the body or officer to make the determination to be reviewed, when the facts in relation thereto are not stated sufficiently in the return and the court is satisfied that they cannot be made to appear by means of an order for a further return.
§ 32-33-08. How served
The writ must be served in the same manner as a summons in a civil action except when otherwise expressly directed by the court.
§ 32-33-09. Extent of review
Except as otherwise provided by law, the review upon a writ of certiorari cannot be extended further than to determine whether the inferior court, tribunal, board, or officer has pursued regularly the authority of such court, tribunal, board, or officer.
§ 32-33-10. Return of writ and hearing
If the return to the writ is defective, the court may order a further return to be made. Any record made by the inferior court, officer, board, or tribunal may be impeached by the return to the writ, or in the cases mentioned in section 32-33-07, by affidavits or other written proof. Upon the final hearing the court must hear the parties, or such of them as may attend for that purpose, and thereupon may give judgment either affirming, annulling, or modifying the proceedings below.
§ 32-33-11. Judgment sent below
A copy of the judgment signed by the clerk must be transmitted to the inferior court, tribunal, board, or officer having custody of the record or proceedings certified.
§ 32-33-12. Judgment roll
A copy of the judgment signed by the clerk, entered upon or attached to the writ and return, constitutes the judgment roll.
Under N.D.C.C. 32-34-01, a court may issue a writ of mandamus to "any inferior tribunal, corporation, board, or person" in order to compel performance of an act that "the law specially enjoins as a duty resulting from an office, trust, or station." A writ of mandamus may also be issued to "compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled and from which the party is precluded unlawfully."
Mandamus is only available if the applicant can "show the existence of a legal right to the performance of the particular act sought to be compelled." City of Fargo v. Cass County, 286 N.W.2d 494 (N.D. 1979). It is a remedy for official inaction. Dickinson Public School Dist. v. Sanstead, 425 N.W.2d 906 (N.D.1988). Mandamus cannot be granted if an alternate plain, speedy and adequate remedy (such as an appeal) exists in the ordinary course of law. Smith v. Burleigh County Board of Commissioners, 578 N.W.2d 533 (N.D. 1998).
Mandamus is not available to compel performance of a discretionary act. City of Fargo v. Cass County, 286 N.W.2d 494 (N.D. 1979). Mandamus, therefore, cannot be used to compel a prosecutor to bring criminal charges because this is a discretionary act. Keidel v. Mehrer, 464 N.W.2d 815 (N.D. 1991). "[W]hile a court may issue a writ ordering a government entity to comply with applicable law, it cannot control the government entity's discretion in determining the method to be used in complying with the law." Fandrich v. Well County Board, 618 N.W.2d 166 (N.D. 2000).
Mandamus is not available to undo acts already done or correct wrongs already perpetrated. Dickinson Public School Dist. v. Sanstead, 425 N.W.2d 906 (N.D.1988).
Mandamus may be available when an appeal is not authorized from an agency's adverse decision or action. Baier v. N.D. Workers Comp. Bureau, 609 N.W.2d 722 (N.D. 2000).
The statutory application procedure for a writ of mandamus is set out in N.D.C.C. 32-34-02. This statute requires that application for writ of mandamus be made by "the party beneficially interested" and "upon affidavit," although the Supreme Court may issue a writ of mandamus sua sponte.
If a writ is issued ex parte, it must be in alternative form, giving the party to whom it is directed the opportunity to perform the act directed or to show cause before the court "at a specified time and place why the party has not done such act." N.D.C.C. 32-34-03.
N.D.C.C. CHAPTER 32-34:
WRIT OF MANDAMUS
§ 32-34-01. By and to whom writ of mandamus issued
The writ of mandamus may be issued by the supreme and district courts to any inferior tribunal, corporation, board, or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled and from which the party is precluded unlawfully by such inferior tribunal, corporation, board, or person.
§ 32-34-01.1. Supreme court sua sponte may issue writ to judges of inferior courts
The supreme court sua sponte may issue a writ of mandamus to any district court judge or other inferior court judge to compel such judge to act upon any judicial matters which have been properly placed before such judge's court. Should such judge fail to act as directed by the writ such judge shall be liable for the punishment provided by this chapter.
§ 32-34-02. When issued
The writ must be issued in all cases when there is not a plain, speedy, and adequate remedy in the ordinary course of law. It must be issued upon affidavit upon the application of the party beneficially interested except those writs issued sua sponte by the supreme court.
§ 32-34-03. Alternative or peremptory
The writ may be either alternative or peremptory. The alternative writ must state generally the allegation against the party to whom it is directed and must command such party immediately upon the receipt of the writ, or at some other specified time, to do the act required to be performed or to show cause before the court at a specified time and place why the party has not done such act. The peremptory writ must be in a similar form except that the words requiring the party to show cause why the party has not obeyed the command must be omitted and a return day inserted.
§ 32-34-04. When each may issue
When the application to the court is made without notice to the adverse party and the writ is allowed, the alternative writ must be issued first, but if the application is upon due notice and the writ is allowed, the peremptory writ may be issued in the first instance. The notice of the application, when given, must be at least ten days. The writ cannot be granted by default. The case must be heard by the court whether the adverse party appears or not.
§ 32-34-05. Answer
On the return of the alternative writ, or the day on which the application for the writ is noticed, the party on whom the writ or notice has been served may show cause by answer under oath made in the same manner as an answer to a complaint in a civil action.
§ 32-34-06. Jury may assess damages
If an answer is made which raises a question as to a matter of fact essential to the determination of the motion and affecting the substantial rights of the parties and upon the supposed truth of which allegation the application for the writ is based, the court in its discretion may order the question to be tried before a jury, and may postpone the argument until such trial can be had and the verdict certified to the court. The question to be tried must be stated distinctly in the order for trial, and the county must be designated in which the same shall be had. The order also may direct the jury to assess any damages which the applicant may have sustained in case they find for the applicant.
§ 32-34-07. Latitude of proof
On the trial the applicant is not precluded by the answer from any valid objection to its sufficiency and may countervail it by proof either in direct denial or by way of avoidance.
§ 32-34-08. New trial -- Where motion made
A motion for new trial must be made in the court in which the issue of fact is tried.
§ 32-34-09. Transmission of verdict
If no notice of a motion for a new trial is given, or, if given, the motion is denied, the clerk within five days after rendition of the verdict or denial of the motion must transmit to the court in which the application for the writ is pending a certified copy of the verdict attached to the order of trial after which either party may bring on the argument of the application upon reasonable notice to the adverse party.
§ 32-34-10. Hearing
If no answer is made, the case must be heard on the papers of the applicant. If the answer raises only questions of law or puts in issue only immaterial statements not affecting the substantial rights of the parties, the court must proceed to hear or fix a day for hearing the argument of the case.
§ 32-34-11. Damages -- Peremptory writ
If judgment is given for the applicant, the applicant may recover the damages which the applicant has sustained as found by the jury, or as may be determined by the court, or referee upon a reference to be ordered, together with costs, and for such damages and costs execution may issue, and a peremptory mandamus also must be awarded.
§ 32-34-12. How writ served
The writ must be served in the same manner as a summons in a civil action except when otherwise expressly directed by order of the court. Service upon a majority of the members of any board or body is service upon the board or body whether at the time of the service the board was in session or not.
§ 32-34-13. Disobedience -- Punishment
When a peremptory mandamus has been issued and directed to any inferior tribunal, corporation, board, or person, if it appears to the court that any member of such tribunal, corporation, board, or such person upon whom the writ has been served personally has refused or neglected to obey the same without just excuse, the court upon motion may impose a fine not exceeding one thousand dollars. In case of persistence in a refusal of obedience, the court may order the party to be imprisoned until the writ is obeyed and may make any orders necessary and proper for the complete enforcement of the writ.
N.D.C.C. § 32-35-01 explains that "[t]he writ of prohibition is the counterpart of the writ of mandamus. It arrests the proceedings of any tribunal, corporation, board, or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person."
Granting a writ of prohibition is discretionary with the court, but the Supreme Court has instructed that the writ is to be employed "sparingly." Schneider v. Seaworth, 376 N.W.2d 49 (N.D. 1985). It may only be granted in cases where there "is no adequate remedy by appeal or otherwise" or where "equitable principles" justify its use. Id. The Schneider court recommended that parties seeking a writ of prohibition show proof of irreparable injury.
Seeking a writ of prohibition would be appropriate in a matter where a party believes a statute to be unconstitutional the constitutional question can be addressed in the writ proceeding without a full trial being conducted. Schneider v. Seaworth, 376 N.W.2d 49 (N.D. 1985). Likewise, seeking a writ of prohibition is appropriate to halt an unconstitutional act by the state. See Walker v. Schneider, 477 N.W.2d 167 (N.D. 1991) (prosecutor prohibited from bring second complaint against defendant when first complaint dismissed for lack of probable cause and no new evidence produced).
Prohibition may also be sought to stop enforcement of a court order. See Smith v. Rustad, 524 N.W.2d 91 (N.D. 1994) (writ denied in case where husband's parents were ordered joined in son's divorce action). Prohibition can be granted to halt enforcement of a tribunal's decision under "limited circumstances," such as when there is no other adequate remedy and there is a threat of irreparable harm. Med. Arts. Clinic v. Fransiscan Initiatives, 531 N.W.2d 289 (N.D. 1995).
The statutory application procedure for a writ of prohibition is set out in N.D.C.C. 32-35-02. This statute requires that application for writ of mandamus be made by "the person beneficially interested" and "upon affidavit."
If a writ is issued ex parte it must be in alternative form, stating the allegations against the party, directing the party to refrain from the further proceedings in the matter pending further order of the court, and ordering the party to show cause before the court why the party should not be "restrained absolutely" from any further proceedings in the matter.
N.D.C.C. CHAPTER 32-35:
WRIT OF PROHIBITION
§ 32-35-01. Definition of writ of prohibition
The writ of prohibition is the counterpart of the writ of mandamus. It arrests the proceedings of any tribunal, corporation, board, or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person.
§ 32-35-02. By whom and when issued
The writ of prohibition may be issued by the supreme and district courts to an inferior tribunal, or to a corporation, board, or person in any case, where there is not a plain, speedy, and adequate remedy in the ordinary course of law. It is issued upon affidavit on the application of the person beneficially interested.
§ 32-35-03. Alternative or peremptory
The writ must be alternative or peremptory. The alternative writ must state generally the allegation against the party to whom it is directed, and must command such party to desist or refrain from further proceedings in the action or matter specified therein until the further order of the court from which it is issued, and to show cause before such court at a specified time and place why such party should not be restrained absolutely from any further proceedings in such action or matter. The peremptory writ must be in a similar form, except that the words requiring the party to show cause why the party should not be restrained absolutely must be omitted and a return day inserted.
§ 32-35-04. Other laws applicable
The provisions of sections 32-34-04 through 32-34-13 for the proceeding under the writ of mandamus apply to this proceeding.
Under N.D.C.C. § 32-13-01, the remedies obtainable by quo warranto were ostensibly replaced by a set of statutory remedies. Under N.D.C.C. § 32-13-03, an action in the nature of quo warranto may be brought:
When any person shall usurp, intrude into, or unlawfully hold or exercise any public office, civil or military, or any franchise within this state, or any office in a corporation or limited liability company created by the authority of this state.
When any public officer, civil or military, shall have done or suffered an act that by the provisions of law shall make a forfeiture of the officer's office.
When any association or number of persons shall act within this state as a corporation without being duly incorporated or as a limited liability company without being duly organized.
In State ex rel. Sathre v. Roberts, 269 N.W. 913 (N.D. 1936), the Supreme Court decided that Chapter 32-13 did not abolish the writ of quo warranto because the power to grant such relief was given to the Court by the Constitution. Instead, the Sathre court decided that Chapter 32-13 provided an alternative "additional and cumulative" path to relief in the nature of quo warranto.
Quo warranto actions will generally be pursued by the Attorney General writs of quo warranto will be issued to private relators only in "exceptional cases." State ex rel. Lyons v. Guy, 107 N.W.2d 211 (N.D. 1961). For example, if the Attorney General refuses to proceed in a matter, a private relator with a "personal and special" interest in the matter may prosecute it. State ex rel. Foughty v. Friederich, 108 N.W.2d 681 (N.D. 1961).
The decision to grant a writ of quo warranto is wholly discretionary with the court. Lyons, 107 N.W.2d at 215.
Under N.D.C.C. § 32-13-05, application for a relief in the nature of quo warranto is made through a complaint that includes a statement of the claim for relief. It may also include the name of the person who claims to be rightfully entitled to the office accompanied by a statement explaining why that person has a right to the office. "Proof by affidavit" that the false office holder "has received fees or emoluments belonging to the office" and an explanation of the means used by the false office holder to "usurp" the office may also be included in the complaint.
An inquiry into the respective rights of the parties alleging entitlement to the given office takes place if the writ is issued. See N.D.C.C. 32-13-06.
N.D.C.C. CHAPTER 32-13:
ACTIONS IN PLACE OF SCIRE FACIAS AND QUO WARRANTO
§ 32-13-01. Remedies obtainable by action instead of writ
The remedies formerly attainable by the writ of scire facias, the writ of quo warranto, and proceedings by information in the nature of quo warranto may be obtained by civil action in the district court under the provisions of this chapter.
§ 32-13-02. Who plaintiff
When an action under this chapter is prosecuted by the attorney general, the state of North Dakota shall be plaintiff. When it is prosecuted by a private person, such person shall be the plaintiff therein and the proceedings in such action shall be the same as in an action by a private person, except as otherwise specially provided.
§ 32-13-03. Who may bring action against usurping officer
An action may be commenced by the state, or any person who has a special interest in the action, against the parties offending in the following cases:
1. When any person shall usurp, intrude into, or unlawfully hold or exercise any public office, civil or military, or any franchise within this state, or any office in a corporation or limited liability company created by the authority of this state.
2. When any public officer, civil or military, shall have done or suffered an act which by the provisions of law shall make a forfeiture of the officer's office.
3. When any association or number of persons shall act within this state as a corporation without being duly incorporated or as a limited liability company without being duly organized.
§ 32-13-04. Security for costs from private party
Before commencing an action under this chapter at the request of a party having an interest therein, the attorney general may require as a condition of commencing the same that satisfactory security be given to indemnify the state against costs and expenses which may be incurred therein.
§ 32-13-05. Complaint for usurping office -- Arrest of defendant
The complaint in an action commenced against a person for usurping an office in addition to the statement of the claim for relief also may set forth the name of the person rightfully entitled to the office with a statement of that person's right thereto, and in such case, upon proof by affidavit that the defendant has received fees or emoluments belonging to the office and by means of the defendant's usurpation thereof, an order may be granted by the judge of the court for the arrest of such defendant.
§ 32-13-06. What judgment shall include
In every action against a person for usurping an office, judgment shall be rendered upon the right of the defendant and also upon the right of the person alleged to be entitled to the office or only upon the right of the defendant, as justice shall require.
§ 32-13-07. When claimant takes office
If judgment is rendered upon the right of the person alleged to be entitled to the office and the same is in favor of such person, that person shall be entitled, after taking the oath of office and executing such official bond as may be required by law, to begin the execution of the office, and it shall be that person's duty immediately thereafter to demand of the defendant in the action all the books and papers in the defendant's custody or within the defendant's power, belonging to the office from which the defendant shall have been excluded.
§ 32-13-08. Refusal to deliver -- Punishment
If the defendant refuses or neglects to deliver any of the books or papers demanded, as prescribed in section 32-13-07, the defendant is guilty of a class B misdemeanor, and the court, or a judge thereof, by order, may put the person entitled to the office in possession thereof and of all the books and papers belonging thereto, and any party refusing to deliver the same, when ordered as aforesaid, shall be punished as for a contempt.
§ 32-13-09. Damages for usurpation
If judgment is rendered upon the right of the person alleged to be entitled to the office in favor of such person, that person may recover by action the damages which that person shall have sustained by reason of the usurpation by the defendant of the office from which such defendant has been excluded.
§ 32-13-10. Joinder of several claimants
When several persons claim to be entitled to the same office or franchise, one action may be brought against all such persons, in order to try their respective rights to such office or franchise.
§ 32-13-11. Judgment against intruder
When a defendant against whom an action shall have been commenced shall be adjudged guilty of usurping, intruding into, or unlawfully holding or exercising any office, franchise, or privilege, judgment shall be rendered that the defendant be excluded from such office, franchise, or privilege and also that the plaintiff recover costs against the defendant.