TO: Ted Gladden
FROM: Jim Ganje
SUBJECT: Statutes Affected by Planning Recommendations - Additional Notes
The memorandum of March 14, 2003, summarized various statutes that would be affected if implementation of recommendations submitted by the Judicial Planning Committee moved forward. The memorandum did not, however, discuss whether amending all of the statutes noted would be necessary to implement the change to administrative units with a presiding judge in each unit. With a few exceptions, there may be an alternative, less burdensome and time-consuming method of addressing most of the statutes.
As summarized in the memorandum, most of the affected statutes contain references to the presiding judge, either "presiding judge of the judicial district", "presiding judge in the judicial district", or a close variation. The office of presiding judge is not constitutionally based and these statutory references do not appear substantive in nature. The references are of such a general nature that it may be possible to describe the new presiding judge arrangement by administrative rule, rather than amend each of these statutes to refer instead to the "presiding judge of the administrative unit in which the [affected] judicial district is located", or something similar. For example, a rule provision could provide that the presiding judge of the administrative unit shall serve as the "presiding judge" of each judicial district within the unit, with the presiding judge having those authorities and responsibilities identified under statutes referring to the "presiding judge of the judicial district" or equivalent variation.
Section 27-05-03 - Presiding Judge Compensation
The above approach would arguably work with respect specifically to NDCC Section 27-05-03, which establishes the salary of district judges and provides additional compensation for the "presiding judge of a judicial district." The unsettled question is whether the additional compensation for a presiding judge provided for in the statute would be considered adequate for a presiding judge of an administrative unit. It is unclear whether the Supreme Court could "supplement" the statutory compensation by rule or policy. If not, an amendment to the statute would be required.
Section 27-05-05 - Election of Presiding Judge
NDCC Section 27-05-05, which addresses the election of presiding judges, poses a more difficult question. The statute provides that district judges "in" judicial districts must elect a presiding judge "from among" the judges. The statute further provides that a presiding judge "in" districts having more than one judge must be elected every three years. It would seem the statute clearly contemplates election of a presiding judge within each judicial district. It is not clear how this statute could be harmonized with an administrative rule provision that would seek to simply "plug in" the unit presiding judge for purposes of election.
As noted above, the office of presiding judge is not based in the constitution, and the election of a presiding judge, whether of a unit or judicial district, seems to be largely a matter concerned with the administrative operation of the judicial system. Given the Chief Justice's, and by extension the Supreme Court's, constitutional authority to administer the system, it could be argued that one alternative is to supersede Section 27-05-05 by administrative rule.
Section 27-05-22 - Judicial Activity Outside Election Districts
As noted in the initial memorandum, NDCC Section 27-05-22 would require review if it were considered useful to allow a unit presiding judge to assign judges to hear cases outside of their election districts, but within the unit. With exceptions, the statute prohibits a judge from hearing or determining any action in a judicial district other than the one for which the judge was elected. The exceptions do not seem to encompass assigning a judge outside a district to facilitate administrative or case management objectives.
While it might be argued that where judges are assigned to hear cases is essentially an administrative matter and, therefore, subject to the administrative authority of the Supreme Court, it might also be argued that Section 27-05-22 essentially describes the geographic "jurisdiction" of district judges. The early public policy decision apparently was that a judge's authority to determine a case should, with certain exceptions, be confined to the area within which the judge was elected. The statute might, therefore, be considered substantive in nature, rather than simply procedural.
Under Section 27-05-23, the order of a judge acting outside the judge's district is not void, but it must be vacated on appeal and must be vacated if an application requesting that the order be vacated is properly filed. This approach might imply that there is nothing of substantive import in the statute since, if the order is not appealable or if no one asks, the judge's order or judgment will stand.
Whether Section 27-05-22 is considered substantive or procedural will affect whether the Supreme Court can, by rule, supersede the statute to address the manner in which judges may hear matters outside their election districts, or supplement the statute to provide an additional exception.
cc: Justice William A Neumann