TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 5, 2016
RE: Rule 32, N.D.R.App.P., Form of Briefs, Appendices, and Other Documents
The Clerk of the Supreme Court has requested that the committee take a look at Rule 32(b) on the form of an appendix to an appellate brief. Specifically, the clerk has noted some problems with the application of paragraph (b)(2) of the rule that "an appendix may include a legible photocopy of any document found in the record of a printed judicial or agency decision." This language seems to allow any document from the record of any recorded decision to be included in the appendix.
Rule 32(b) is based on the federal rule, copy attached, which includes the word "or" between "record" and "of." This word was apparently dropped from Rule 32 at some point and the proposed amendment, attached, would restore it to the rule. The one word amendment is on line 64.
The clerk also raises a question about the meaning of the word "printed" in Rule 32(b)(2). This language is also included in the federal rule, but the only thing the federal comments have to say about it is: "The rule permits inclusion not only of documents from the record but also copies of a printed judicial or agency decision. If a decision that is part of the record in the case has been published, it is helpful to provide a copy of the published decision in place of a copy of the decision from the record." The clerk is wondering whether a state agency decision that is posted online, but not printed, would be allowed in the appendix under Rule 32(b)(2). The committee may wish to discuss whether the word "printed" should be eliminated or replaced with a more appropriate term.