TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: April 13, 2011
RE: Rule 4, N.D.R.App.P., Appeal - When Taken
At the September 2010 meeting, the Committee considered adoption of two new rules that would have set out procedures for the Supreme Court to remand cases back to the district court for resolution of certain motions. The Committee decided not to adopt the proposed new rules, in part because it objected to requirements for "indicative" rulings by the district court before remand was allowed.
The Committee, however, favored the idea of the Supreme Court retaining jurisdiction during a remand for district court resolution of a motion. The Committee requested that staff prepare amendments to Rule 4 incorporating this concept. Staff has prepared a Rule 4 proposal, which is attached, that includes amendments based in part on new Fed.R.App.P. 12.1. Under the proposal, the Supreme Court would retain jurisdiction over a matter remanded for resolution of a motion unless it specifically dismissed the appeal.
Supreme Court Clerk Penny Miller has reviewed the proposal and indicated that it was a straightforward approach to the issue. Her email comments are attached.
A copy of N.D.R.App.P. 35, which already contains a remand provision under which the Supreme Court retains jurisdiction while the matter is in the hands of the district court, is attached for the Committee's reference. A copy of Fed.R.App.P. 12.1 with material explaining the new rule is also attached.