TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 8, 2008
RE: Rule 5, N.D.R.Crim.P., Initial Appearance Before the Magistrate
Chief Justice VandeWalle has forwarded to the Committee a letter from McLean County State's Attorney Ladd Erickson regarding uniform citations in criminal cases. In his letter, Mr. Erickson indicates that there will likely be an effort in the next legislative session to revise criminal statutes to allow the expanded use of uniform citations. A copy of the Chief Justice's forwarding letter and Mr. Erickson's letter are attached.
Mr. Erickson would like to see coordination between the courts and the legislature in accommodating the expanded use of uniform citations. Mr. Erickson writes that different judicial districts deal with uniform citations differently. Mr. Erickson also notes that the current uniform citation statutes state that Rule 5 does not apply when a uniform citation is used, a provision that may not be enforceable.
Article VI, Section 3 of the North Dakota Constitution gives the Supreme Court the power to promulgate rules of procedure and evidence. While the legislature may adopt statutory rules of procedure, when there is a conflict between a statutory rule and a court rule, the court rule prevails. Traynor v. LeClerc, 1997 ND 644, ¶ 8, 561 N.W.2d 644. In other words, the legislature does not have the power to supersede a court rule, as it appears to be attempting to do in the current uniform citation statutes.
The Chief Justice clearly desires the Committee to work with Mr. Erickson on this issue, even though he also has concerns about uniform citations that he expresses in his letter. The Committee, therefore, may wish to discuss whether Rule 5 could be amended to accommodate uniform citations and to establish a procedure that would be applicable statewide to these citations. A copy of Rule 5 is attached for the Committee's reference.
After the Committee examines this issue and discusses possible amendments, staff can prepare a draft proposal for further review and possible distribution.