Administrative Rule 27 - COURT OF APPEALS

Obsolete Date: 8/1/2009

Section 1. Authority.

The 1987 Legislative Assembly provided for the establishment of a temporary court of appeals pursuant to 1987 Session Laws, Chapter 374. Pursuant to Article VI, Sections 3 and 8, North Dakota Constitution and 1987 Session Law, Chapter 374, the Supreme Court adopts the following administrative rule relating to the Court of Appeals.

Section 2. Application.

This rule applies to the panels of the North Dakota Temporary Court of Appeals, herein referred to collectively as the Court of Appeals.

Section 3. Statement of Policy.

It is the policy of the North Dakota Judicial System to provide for efficient processing of appellate cases, to insure that justice is rendered in the courts of North Dakota and, as justice requires, that litigants have their cases reviewed promptly and fairly in the appellate courts of this state.

Section 4. Judges of the Temporary Court of Appeals.

The Chief Justice, with the approval of the Supreme Court, may assign retired Supreme Court justices, active or retired District Court judges, lawyers, or Surrogate Judges to serve on panels of the Court of Appeals in a particular case or cases when the caseload of the Supreme Court requires.

Section 5. Procedural Rules.

Except as otherwise provided in these rules, all proceedings in the Court of Appeals are governed by the North Dakota Rules of Appellate Procedure. The terms "court" or "justice" as used in those rules means the judges or a judge respectively of the Court of Appeals.

Section 6. Location of Sessions.

The Court of Appeals shall hold its sessions of court in Bismarck and in other cities in the state at times prescribed by order of the Supreme Court.

Section 7. Chief Judge.

(a) The Chief Justice shall designate a chief judge of each panel of the Court of Appeals for the term of the panel.

(b) In cases assigned to the Court of Appeals, the chief judge may issue orders in procedural matters.

Section 8. Clerk of the Court of Appeals.

The clerk of the Supreme Court shall provide clerk of court services to the Court of Appeals.

Section 9. Case Filings.

(a) All motions, petitions, briefs, and other appellate documents must be filed with the clerk of the Supreme Court pursuant to the North Dakota Rules of Appellate Procedure. There may be no separate filings directed to or filed with the Court of Appeals by litigants.

(b) In cases assigned to the Court of Appeals, the title of the proceeding and the identifying number thereof may not be changed, but the clerk may add additional letters or other notations to the case number to identify the assignment of the case.

(c) All case files must be maintained in the office of the clerk of the Supreme Court.

Section 10. Assignment of Cases.

(a) The Supreme Court shall assign cases to the Court of Appeals.

(b) In assigning cases to the Court of Appeals, the Supreme Court shall give due regard to the workload of each court, to the error review and correction functions of the Court of Appeals, and to the desirability of retaining for decision by the Supreme Court cases in which there is substantial public interest or in which there are significant issues involving clarification or development of the law.

(c) Generally, cases involving consideration of existing legal principles will be assigned to the Court of Appeals.

(d) The Supreme Court may assign any case to the Court of Appeals consistent with Section 10(b) and (c).

(e) Unless special circumstances are indicated and consistent with caseload balance, cases in the following categories will be assigned to the Court of Appeals:

(1) Appeals of mental-health commitment proceedings pursuant to Section 25-03.1-29 NDCC and Rule 2.1 NDRAppP;

(2) Appeals of decrees or modifications thereof in divorce and separation proceedings involving property distribution, child support, spousal support, and child custody;

(3) Appeals of misdemeanor convictions;

(4) Appeals involving cases originating in municipal court;

(5) Appeals involving cases originating in small claims court;

(6) Appeals involving cases originating with administrative proceedings;

(7) Appeals involving cases originating under Chapter 27-20, NDCC (Uniform Juvenile Court Act), Chapter 14-15, NDCC (Revised Uniform Adoption Act) and Chapter 14-17, NDCC (Uniform Parentage Act);

(8) Appeals or applications for the exercise of original jurisdiction arising out of pro se applications for relief from persons incarcerated or held in custody in penal correction facilities; and

(9) Appeals from trial court orders on motions for summary judgment.

Section 11. Reassignment of a Case to the Supreme Court.

At any time before the filing of an opinion, the Supreme Court may reassign a case from the Court of Appeals to the Supreme Court. Upon the entry of an order reassigning a case, the Court of Appeals may take no further action in the case.

Section 12. Petition for Rehearing.

Any party to a Court of Appeals proceeding may petition the Court of Appeals for a rehearing pursuant to Rule 40, NDRAppP. The Court of Appeals shall dispose of the petition.

Section 13. Review by the Supreme Court.

(a) Any party to a proceeding aggrieved by a judgment or order of the Court of Appeals may file a petition for review with the clerk of the Supreme Court within fourteen days after the date of filing of the judgment or order, or, if a petition for rehearing is filed, within fourteen days after final disposition of the petition for rehearing by the Court of Appeals. A brief, not exceeding ten pages, in support of the petition for review must be filed with the petition. Other parties to a petition for review may not respond unless requested by the Supreme Court. If a petition for review is granted, the Supreme Court shall include in its order the sequence for filing briefs by the parties before oral argument.

(b) A party is not required to petition the Court of Appeals for a rehearing before filing a petition for review by the Supreme Court.

(c) The Supreme Court may grant a petition for review from a judgment or order of the Court of Appeals when there are special and important reasons and a majority of the justices of the Supreme Court direct that the petition be granted. The following criteria, while neither controlling nor fully measuring the Supreme Court's discretion, will be considered in the exercise of the court's discretion:

(1) whether the Court of Appeals has decided a question of substance not previously determined by the Supreme Court;

(2) whether the Court of Appeals has decided a question of substance probably not in accord with applicable decisions of the North Dakota Supreme Court or of the United States Supreme Court;

(3) whether the Court of Appeals has rendered a decision in conflict with a published decision of the Court of Appeals;

(4) whether the Court of Appeals has so far departed from the accepted and usual course of judicial proceedings or so far sanctioned such procedure by a trial court as to call for the exercise of the supervisory jurisdiction of the Supreme Court;

(5) whether a majority of the judges of the Court of Appeals, after decision, certify that the public interest or the interests of justice make desirable review by the Supreme Court; and

(6) whether there is a dissenting opinion in the Court of Appeals.

(d) The scope of review of the Supreme Court is the same as that in cases originally heard on appeal by the Supreme Court.

Section 14. Judgments, Opinions and Mandates.

(a) Judgments will issue from the Court of Appeals in accordance with Rule 36, NDRAppP.

(b) If the Supreme Court grants a petition for review, the assignment of the case to the Court of Appeals terminates and no mandate may issue on the opinion of the Court of Appeal. Upon final determination of the appeal pursuant to the order granting review, the Supreme Court shall enter a judgment and issue a mandate to the trial court or other tribunal.

(c) An opinion of the Court of Appeals may be published only when it satisfies one of the following standards:

(1) establishes a new rule of law or alters or modifies an existing rule;

(2) involves a legal issue of continuing public interest;

(3) criticizes or explains existing law;

(4) applies an established rule of law to a factual situation significantly different from that in published opinions of this state;

(5) resolves an apparent conflict of authority; or

(6) constitutes a significant and non-duplicative contribution to legal literature.

The opinion may be published only if one of the three judges participating in the decision determines that one of the standards set out in this rule is satisfied. The published opinion must include concurrences and dissents.

Section 15. Effective Date.

The effective date of this Rule is September 1, 1987; amended effective January 1, 1995.

Dated at Bismarck, North Dakota, this 16th day of November, 1995.

Gerald W. VandeWalle, Chief Justice
Herbert L. Meschke, Justice
Beryl J. Levine, Justice
William A. Neumann, Justice
Dale V. Sandstrom, Justice

ATTEST:
Penny Miller, Clerk
North Dakota Supreme Court

SOURCE: North Dakota Constitution, Article VI, and 1987 Session Laws, Chapter 374.

[Adopted effective September 1, 1987; amended effective January 1, 1995, Supreme Court No. 940197.]