TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 3.3, N.D.R.Ct., Change of Judge
Committee member Ron McLean has suggested that the Committee consider adopting a Wisconsin provision that allows a demand for change of judge to made when a matter is remanded after appeal. His proposal letter, the Wisconsin statute, and a follow-up e-mail are attached.
The right to demand a change of judge in North Dakota is statutory and is codified in N.D.C.C. 29-15-21. The North Dakota Supreme Court, however, has suggested that the statute is procedural in nature. See Traynor v. Leclerc, 1997 ND 47, 561 N.W.2d 644. The Court has final authority over procedure and procedural rules and may supersede procedural statutes. See id., see also N.D. Const. Art. VI, § 3.
Given the procedural nature of the change-of-judge statute and the like nature of Mr. McLean's proposal, the Committee may wish to examine whether the change of judge statute and Mr. McLean's proposal should be incorporated into the procedural rules.
For discussion purposes, Staff has prepared proposed amendments to N.D.R.Ct. 3.3, attached, that embody the provisions of our change-of-judge statute and Mr. McLean's Wisconsin provision. Staff has edited the language of the statutory provisions for style, eliminating outdated language and excessive requirements. Otherwise, the language of the proposed amendments generally reflects the language of N.D.C.C. § 29-15-21 and Wis. Stat. 801.58(7).