Obsolete Date: 11/1/2020
(a) Petition, Filing, and Service.
(1) A party seeking a writ must file a petition with the clerk of the supreme court and serve the petition on all parties to the proceeding in the district court. The party must also provide a copy to the district court judge.
(2) The petition must state:(A) the relief sought;
(B) the issues presented;
(C) the facts necessary to understand the issues presented; and
(D) the reasons why a writ should issue.
(3) The petition must be accompanied by a copy of any order or opinion and other parts of the record that are necessary to understand the matters set forth in the petition.(A) If a petition is supported by briefs, affidavits, or other documents, they must be served and filed with the petition.
(B) Supporting documents must be contained in a separately bound appendix in the format specified in Rule 25, Rule 30(d) and Rule 32(b).
(b) Action; Response to Petition; Briefs.
(1) The court may act on a petition without a response. Otherwise, the court will fix a time for a response and may set a hearing. Unless the court requests, no response to a petition is permitted.
(2) Two or more parties may respond jointly to a petition.
(3) The court may invite or order the district court judge to respond to a petition or may invite an amicus curiae to do so.
(c) Form of Documents; Number of Copies. A petition and any response must contain all applicable items listed in Rule 28(b). All documents must conform to Rule 25, if applicable, and Rule 32. If filed by mail or third-party commercial carrier, an original and seven copies must be filed unless the court requires the filing of a different number in a particular case. If filed electronically, one electronic copy of all documents must be filed.
(d) Fees. A docket fee is due at the time of filing, unless exempted under Rule 12. Any reproduction fee is due within seven days of filing.
Rule 21 was adopted, effective March 1, 2004; amended effective October 1, 2014; March 1, 2020; November 1, 2020; March 1, 2021; March 1, 2022.
Rule 21 was designed to clarify writ procedure in the supreme court.
The supreme court has power under art. VI, § 2, of the North Dakota Constitution to issue original and remedial writs. Under N.D.C.C. § 27-02-04, the supreme court has supervisory power over inferior courts and may issue writs in the exercise of this power.
A petition for a supervisory writ is not an alternative to an appeal. The supreme court will issue a supervisory writ only to rectify errors and prevent injustice when no adequate alternative remedy exists.
This rule does not limit the supreme court's authority to exercise its supervisory power.
Other extraordinary writs are set out in the North Dakota Century Code. See N.D.C.C. 32-22, for writ of habeas corpus; N.D.C.C. ch. 32-34, for writ of mandamus; N.D.C.C. ch. 32-35, for writ of prohibition; N.D.C.C. ch. 32-33, for writ of certiorari; and N.D.C.C. ch. 32-06 for writ of injunction.
Subdivision (a) and (c) were amended, effective October 1, 2014, to conform the rule to electronic filing.
Paragraph (a)(3) was amended, effective March 1, 2022, to clarify what supporting material should accompany a petition and to require that supporting material be attached as an exhibit to the petition.
Subdivision (b) was amended, effective March 1, 2020, to allow a response to a petition only when requested by the court.
Subdivision (c) requires that a supervisory writ petition or any petition response must contain the elements specified in Rule 28 (b) that apply to the given document. For example, a petition that cites legal authorities must include a table of authorities as described in Rule 28 (b)(2).
Subdivision (c) was amended, effective November 1, 2020, to require an original of the petition to be filed when filing is by mail or third party commercial carrier.
Subdivision (d) was added, October 1, 2014, to clarify that a docket fee must be paid when a writ petition is filed with the supreme court.
Rule 21 was amended, effective October 1, 2014, to make the rule applicable to all writs filed in the supreme court and to clarify that fees apply to filing.
Rule 21 was amended, effective October 1, 2014, to replace "supreme court clerk" with "clerk of the supreme court" and "paper" with "document."
Rule 21 was amended, effective March 1, 2021, to delete the term “affidavit” and replace it with “declaration.” This amendment was made in response to N.D.C.C. ch. 31-15, which allows anyone to make an unsworn declaration that has the same effect as a sworn declaration, such as an affidavit. N.D.C.C. § 31-15-05 provides the required form for an unsworn declaration.
SOURCES: Joint Procedure Committee Minutes of September 30, 2021, pages 2-9; April 24, 2020, pages 4-5; September 24, 2020, pages 2-3; September 28, 2018, page 16; September 26, 2013, page 22; April 24-25, 2003, page 14; January 30-31, 2003, pages 16-18.
CONSIDERED: N.D.C.C. ch. 31-15.