TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 6, 2015
RE: Procedure for Filing Restoration of Firearms Rights Petition
In an email, attorney Mark Friese has asked the committee to discuss submission of petitions to restore firearms rights under N.D.C.C. § 62.1-02-01.1. Copies of the email and of the statute are attached. Mr. Friese recently filed a petition to restore in the underlying criminal case and it was granted by the judge, but he was then instructed by the clerk that he needed to refile the petition as a separate civil case.
In his email, Mr. Friese states that it makes sense to allow the petition to restore to be filed in the underlying criminal case. Staff discussed this issue with state court administrator Sally Holewa and staff attorney Jim Ganje and they said there were several reasons why court administration requests that the petition be filed as a separate civil case:
1. N.D.C.C. § 62.1-02-01.1 requires a petition to restore to be filed in the county where the offense occurred if the felony offense was committed in this state. In this situation there would be an underlying criminal case. The statute, however, also allows submission of petition to restore in cases where the offense was a felony in another state or a federal felony. In such a case, there is no state criminal file and it is necessary to open a civil case in the petitioner's country of residence to submit the petition. In addition, a person can be barred from possessing a firearm due to mental health reasons under N.D.C.C. § 62.1-02-01. If restoration of rights is sought, N.D.C.C. § 62.1-02-01.2 requires the petition to be filed either in the county where the mental health finding was made or the county of the petitioner's residence. For the sake of consistent procedure, court administration requires a new civil case to be opened in all the circumstances where a petition to restore is submitted.
2. Court administration points out that an action to restore firearms rights is not a criminal matter but a civil matter analogous to a post-conviction relief proceeding. Therefore, it is appropriate for the petition to be filed as part of a civil case. The filing fee can be waived when the petitioner is indigent.
No rule amendment is proposed because staff has been unable to identify an existing rule that applies to this situation. A new rule could be added to the Rules of Court to set out a procedure for filing petitions to restore firearms rights that would allow a petition to be filed in the underlying criminal case where one exists. Another option would be to recommend to the Court that filing in the underlying criminal case be allowed.