TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 62, N.D.R.Civ.P., Stay of Proceedings to Enforce a Judgment; Rule 8, N.D.R.App.P., Stay or Injunction Pending Appeal
In a November 5, 2003, letter (copy attached) attorney John Olson submitted a request to the North Dakota Supreme Court seeking amendment of N.D.R.Civ.P. 62 and N.D.R.App.P. 8. On behalf of his client, Philip Morris USA, Mr. Olson asked the Court to impose an appeal bond ceiling of $25 million. The Court considered Mr. Olson's letter and referred the matter to this Committee for "review and report."
The Court requested that Staff obtain additional information about appeal bond limits nationwide from Mr. Olson, and he provided an "Appeal Bond Briefing Book" that will be distributed to Committee members at the January 29-30 meeting. The book contains copies of rules and statutes in force across the country containing appeal bonds.
Mr. Olson has recommended that North Dakota impose a $25 million appeal bond limit. The briefing book Mr. Olson provided shows that of the 25 states that have imposed appeal bond caps, 11 states (including South Dakota) have $25 million caps, five states have $50 million caps, one state has a $75 million cap, and seven states have caps of $100 million or higher. Idaho has a $1,000 cap and five states have no bond requirement. The remaining 20 states (including Iowa, Minnesota, Montana, and Wyoming) apparently do not have any limitations on appellate bond amounts. The briefing book summary of enacted appeal bond statutes and rules is included in the attached materials.
Under N.D.R.Civ.P. 62 (d), an appellant may obtain a stay of execution of judgment pending appeal by giving a supersedeas bond. The stay takes effect when the bond is approved by the district court. Caselaw indicates that the district court has discretion to determine whether a bond amount is adequate. See Berg v. Berg, 530 N.W.2d 341, 343 (N.D. 1995). If a stay cannot be obtained from the trial court, a party may seek a stay pending appeal from the Supreme Court under N.D.R.Civ.P. 62(l) and N.D.R.App.P. 8. These provisions of the current rules seem to allow the district court and the Supreme Court to use their discretion to protect appellants from excessive bond amounts.
Proposed amendments to N.D.R.Civ.P. 62 and N.D.R.App.P. 8 integrating Mr. Olson's recommendations (with some minor stylistic alterations) are attached. The South Dakota rule (copy attached) apparently stems from the same source as Mr. Olson's recommendations since its language is nearly identical to his North Dakota proposal.