TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 38, N.D.R.Civ.P., Jury Trial of Right
Judge Geiger suggested at the January meeting that the Committee discuss inconsistencies between the jury demand procedure in Rule 38 and the procedure in the Uniform Probate Code. Judge Geiger explained the inconsistencies in an email, which is attached.
Judge Geiger's main concern is that the UPC lacks a firm deadline for a jury trial request to be made. Rule 38(b) requires a jury trial demand to be made in writing no later then ten days after service of the last pleading "directed to such issue." The UPC statute dealing with jury trial demands, N.D.C.C. § 30.1-15-04, provides:
"The written demand must be affixed to the pleading of the party which raises any issues of fact and may not be served and filed later than seven days before the time set for hearing."
Under N.D.C.C. 30.1-02-04, the rules of civil procedure apply to formal UPC proceedings "[u]nless specifically provided to the contrary in this title or unless inconsistent with its provisions." While the jury trial demand requirements of N.D.C.C. § 30.1-15-04 and Rule 38 are not identical, they are not necessarily contrary or inconsistentthe main difference is that Rule 38 has a deadline that is triggered by a specific event while the statute's only explicit deadline is the requirement that the demand be served and filed at least seven days before the hearing.
Judge Geiger comments in his email that the absence of a jury trial demand deadline in N.D.C.C. 30.1-15-04 causes confusion for the court and the parties. As a result, he writes, the court often has to hold a scheduling conference during the block of time set aside for the "jury trial," which delays the hearing and the ultimate resolution of the matter.
The Supreme Court has the power to dictate court procedure. The fact that the Court put the deadline for making a jury trial demand into a procedural rule certainly suggests that the Court views such deadlines as procedural devices. In Greenwood, Greenwood & Greenwood v. Klem, 450 N.W.2d 745 (N.D. 1990), the Court acknowledged the constitutional right to a jury trial but indicated that a party waives this right if the party fails to make a timely demand under Rule 38. To protect the right to jury trial, the trial court has broad discretion to grant relief from a waiver under N.D.R.Civ.P. 39(b).
Staff has prepared a proposed amendment to the Explanatory Note of Rule 38 indicating that the rule applies to jury trial demands under N.D.C.C. § 30.1-15-04. The Committee may wish to discuss whether the language of the rule itself should be amended. A copy of the proposed amendment is attached.