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RULE 5.2 EXTRAORDINARY WRITS

Effective Date: 3/1/2013

(a) General Provisions.

(1) This rule applies to petitions for relief under the writs of habeas corpus, certiorari, mandamus, prohibition and quo warranto. 
(2) A person seeking relief will be designated as the petitioner. All parties to the proceeding other than the petitioner will be designated as respondents. 
(3) Except as they are inconsistent or in conflict with statute or this rule, the Rules of Civil Procedure apply to proceedings under this rule in district court and the Rules of Appellate Procedure apply to proceedings under this rule in the supreme court.

(b) Application Procedure

(1) A party seeking relief must file a verified petition with the appropriate court clerk. 
(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 and why relief should be granted.
(3) The petition must include a copy of any order or opinion or parts of the record that are necessary to understand the matters set forth in the petition. If a petition is supported by briefs, affidavits, or other papers, they must be filed with the petition. 
(4) A copy of the petition must be served on the respondents.

(c) Action by Court

(1) The court may deny a petition, or grant preliminary relief to a petitioner, without requiring a response or holding a hearing. 
(2) The court may not grant final relief to a petitioner without giving all parties an opportunity to respond to the petition or to show cause why the requested relief should not be granted. 
(3) The court may make appropriate orders, including:
(A) allowing amendment of the petition or any response or motion; 
(B) allowing additional amendments, responses or motions; 
(C) extending the time for filing any amendment, response or motion.
(4) At any time before the entry of a final order or grant of final relief, the court may, for good cause, grant leave to withdraw the petition without prejudice. 
(5) The court may, for good cause, grant leave to use discovery procedures to the petitioner or any respondent. Discovery procedures may be used only to the extent and in the manner the court has ordered or to which the parties have agreed. 
(6) The court may hold a hearing on a petition on its own motion or upon request of any party.

The content of Rule 5.2 was transferred from Rule 8.10, effective March 1, 2013. Rule 8.10 was originally adopted, effective March 1, 2005.

Article VI of the North Dakota Constitution gives the supreme court and the district courts the power to issue writs and to grant relief. The North Dakota Century Code defines the types of preliminary and final relief that may be obtained through statutory writ proceedings. See N.D.C.C. chs. 32-13 (writ of quo warranto); 32-22 (writ of habeas corpus); 32-33 (writ of certiorari); 32-34 (writ of mandamus); 32-35 (writ of prohibition).

The Rules of Civil Procedure govern writ proceedings to the extent provided by paragraph (a)(3) of this rule. Under N.D.R.Civ.P. 81, when statutory writ procedure is inconsistent or in conflict with the Rules of Civil Procedure, the statutory procedure governs.

SOURCES: Joint Procedure Committee Minutes of January 29-30, 2004, page 13; September 18-19, 2003, pages 19-24; April 24-25, 2003, pages 4-6; January 30-31, 2003, pages 18-20; September 26-27, 2002, pages 18-20.

STATUTES AFFECTED:

SUPERSEDED: N.D.C.C. §§ 32-32-02, 32-32-04, 32-32-05, 32-32-06; 32-33-02.

CONSIDERED: N.D.C.C. §§ 32-13-01; 32-13-02; 32-13-03; 32-13-04; 32-13-06; 32-13-06; 32-13-07; 32-13-08; 32-13-09; 32-13-10; 32-13-11; 32-22-01; 32-22-02; 32-22-03; 32-22-04; 32-22-05; 32-22-06; 32-22-07; 32-22-08; 32-22-09; 32-22-10; 32-22-11; 32-22-12; 32-22-13; 32-22-14; 32-22-15; 32-22-16; 32-22-17; 32-22-18; 32-22-19; 32-22-20; 32-22-21; 32-22-22; 32-22-23; 32-22-24; 32-22-25; 32-22-26; 32-22-27; 32-22-28; 32-22-29; 32-22-30; 32-22-31; 32-22-32; 32-22-33; 32-22-34; 32-22-35; 32-22-36; 32-22-37; 32-22-38; 32-22-39; 32-22-40; 32-22-41; 32-22-42; 32-22-43; 32-32-01, 32-32-03, 32-33-01; 32-33-03; 32-33-04; 32-33-05; 32-33-06; 32-33-07; 32-33-08; 32-33-09; 32-33-10; 32-33-11; 32-33-12: 32-34-01; 32-34-01.1; 32-34-02; 32-34-03; 32-34-04; 32-34-05; 32-34-06; 32-34-07; 32-34-08; 32-34-09; 32-34-10; 32-34-11; 32-34-12; 32-34-13; 32-35-01; 32-35-02; 32-35-03; 32-35-04.

CROSS REFERENCE: N.D.R.Civ.P. 81 (Applicability—In General); N.D.R.App.P. 21 (Supervisory Writs); N.D.Sup.Ct.Admin.R. 27 (Court of Appeals).

Effective Date Obsolete Date
03/01/2013 View
03/01/2005 03/01/2013 View