M E M O
TO: Joint Procedure Committee
FROM: Gerhard Raedeke
RE: Rule 42, N.D.R.App.P.; Dismissal
The Supreme Court has requested the Committee to consider an amendment requiring the parties to notify the court when an issue becomes moot after notice of appeal is filed. The request is in response to the case of Ashley Education Association v. Ashley Public School District, Civil No. 960246. In Ashley, an education association sought a permanent injunction prohibiting the school district from issuing extra curricular contracts during negotiations. Upon questioning during oral argument, counsel for the parties revealed negotiations had concluded and the contracts had been issued for the 1996-1997 school year. Neither party had advised the court before oral argument that the issue on appeal had become moot. The appeal was dismissed.
Should Rule 42, N.D.R.App.P., be amended to require the parties to notify the court when an issue becomes moot? Already, Rule 3.3, of the Rules of Professional Conduct requires candor by lawyers towards the tribunal. In Ashley, the court said: "In keeping with the spirit of [NDRPC 3.3], the attorneys should have immediately informed the court of the settlement and its effect on the issue of mootness resulting from it."