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Guide to an Appeal to the North Dakota Supreme Court

Table of Contents

Introduction

This guide is primarily intended to assist someone unable or unwilling to hire an attorney with the basic procedural steps that must be followed when filing an appeal in the North Dakota Supreme Court. This guide is not legal advice and should not be cited as legal authority. The information in this guide is not intended to replace the North Dakota Rules of Appellate Procedure (N.D.R.App.P.), but should be used in conjunction with the Rules.  This guide is not a substitute for hiring an attorney.

 This guide reflects the North Dakota Rules of Appellate Procedure (N.D.R.App.P.) in effect as of March 1, 2022. The rules are always subject to change. Therefore, you should consult the rules for any changes. You may call the Supreme Court Clerk's office if you have a specific question about how to file your papers with the Court. Although staff will try to help answer your procedural questions, you must remember that employees of the Supreme Court are not permitted to give legal advice or make specific recommendations to you on how you should proceed with an appeal or respond to an appeal.

Glossary of Terms

Appeal - A review by the Supreme Court of what happened in the district court to determine whether any mistakes occurred and, if so, whether the decision of the district court should be reversed. 

Appellant - A party who appeals from a decision of the district court. 

Appellee - A party against whom an appeal is taken and who responds to the appeal. 

Brief - A written statement explaining the arguments of a party to an appeal. 

Cross-appeal - An appeal filed by the appellee, which is heard at the same time as the appellant's appeal. A cross-appeal usually requests the Supreme Court to correct a mistake made by the district court and seeks a remedy that is different from the remedy requested by the appellant. 

Docket - The list of documents in a case that have been filed in the court and the date they were filed (also known as a Register of Actions). 

Filing - A document has been filed with the Supreme Court when the Clerk has actually received it, has determined that the document sufficiently complies with the rules, and has stamped the date on the document. If briefs, transcripts, appendices, and petitions for rehearing comply with the rules, they are considered filed the date the document is mailed. 

Interlocutory appeal - An appeal filed before the district court enters its final order disposing of all issues in the case. 

Interlocutory order - An order addressing some intermediate matter and issued before the district court has reached its final decision in the case. 

Jurisdiction - A court's power to decide a case or issue an order. 

Appellate jurisdiction - The Supreme Court's authority to review and revise a lower court's decision. 

Original jurisdiction - The Supreme Court's authority to hear and decide a matter before any other court has reviewed it. 

Motion - A request that the Court make a specific ruling or order, usually required to be in writing. 

North Dakota Century Code - A collection of all general and permanent laws enacted by the state legislature or by the people through initiated measures and which may be referred to as the Century Code, the Code, or N.D.C.C. 

North Dakota Rules of Appellate Procedure - Rules adopted by the Supreme Court that control the procedures in the Supreme Court and which may be referred to as the appellate rules or N.D.R.App.P. 

Notice of appeal - The document filed in the district court notifying the Court that a matter is being appealed. 

Oral argument - The time a party orally presents its position and responds to the Supreme Court's questions about an appeal. 

Record - All the original documents and exhibits filed with the district (or trial) court. 

Self-represented - Refers to a person who does not retain a lawyer and appears on his or her own behalf before the Court. This person is sometimes referred to as pro se, pro per or in propria persona. 

Service - Delivery of a copy of a document to be filed in the Court to the other party (or parties) to the case. 

Transcript - A word-for-word typed record of what was said during a hearing in the district court or administrative agency. 

Writ - A highly unusual remedy within the original jurisdiction of the Supreme Court. Although there are several different types of writs, they usually are issued to prohibit a district court from exceeding its jurisdiction or to compel a district court to perform a duty it has no choice but to perform. In general, a writ may be issued only when the party requesting the writ does not have any other legal remedy. It is not a substitute for an appeal.

What is the North Dakota Supreme Court?

The North Dakota Supreme Court is the highest court in the State, consisting of five Justices, including a Chief Justice. The Supreme Court is primarily a court of appeals. An appeal is not a new trial. Parties in an appeal before the Supreme Court may not offer any evidence that was not presented to the district court. The Court decides appeals strictly on the basis of the record of the proceedings in the district court, the written briefs filed by the parties, and argument of those briefs.

The Supreme Court also has original jurisdiction to issue writs. There are several types of writs. Writs are highly unusual remedies and are rarely issued by the Court. An application for a writ does not replace a timely-filed appeal. The filing requirements for supervisory writs are governed by Rule 21 of the North Dakota Rules of Appellate Procedure. Writs are not discussed further in this guide.

References: N.D.C.C. §§ 32-22; 32-33; 32-34; and 32-35.

Where is the North Dakota Supreme Court located?

The Supreme Court is located in the State Capitol in Bismarck, North Dakota.  It is on east end of the first floor of the Judicial Wing of the capitol building. The Court's business hours are 8:00 a.m. to 5:00 p.m., Monday through Friday. Any questions about an appeal should be directed by letter, telephone call, or email to the Clerk's office as follows:

Clerk of Court
Supreme Court of North Dakota
600 East Boulevard Avenue
Bismarck, ND 58505-0530
(701) 328-2221
supclerkofcourt@ndcourts.gov

All communication with the Supreme Court must be conducted through the Clerk's Office. No party is permitted to contact an individual Justice regarding any case.

Is there Internet access to the North Dakota Supreme Court?

Information about the Supreme Court may be accessed through the Internet at http://www.ndcourts.gov. The Court's website contains timely news items about the Court and other legal organizations, and provides links to the Court's calendar, opinions and notices, and case docket information, including links to briefs, court rules, profiles of the Justices, and information about the Court's standing committees.

What orders may be appealed to the Supreme Court?

In civil cases, the Supreme Court has jurisdiction to hear appeals from final orders or judgments issued by the district courts. A judgment is final if all of the issues in a case have been decided. An order is not final (is "interlocutory") if it decides only some of the issues or claims but not all of them. In civil cases, the district court may enter an interlocutory order as a final judgment for purposes of appeal if the order meets the criteria of Rule 54(b) of the North Dakota Rules of Civil Procedure. A final order or judgment in a civil case normally must be entered before a notice of appeal is filed.

In criminal cases, the Supreme Court has jurisdiction to hear direct appeals from the district court. In direct criminal appeals, the district court's final order or judgment is entered for purposes of appeal the day the order or judgment is entered in the court's criminal docket.

In post-conviction appeals, as with civil appeals, notice of entry of the district court's final order or judgment must be served.

References: N.D.C.C. §§ 28-27-01; 28-27-02; 29-28-06; 29-28-07; 29-32.1-14; N.D.R.Civ.P. 54(b); N.D.R.App.P. 4.

Do I need a lawyer?

Individuals may appear before the Supreme Court without a lawyer. A legal entity such as a corporation is required to have a lawyer represent it. 

Although an individual is not required to have a lawyer, most people find that having a lawyer on appeal is helpful to them.  The State Bar Association of North Dakota has two programs that may be of assistance. The first is a lawyer referral service to locate an appropriate full priced lawyer to help you with your matter. The second is a volunteer lawyer program in which lawyers volunteer to provide reduced fee representation or pro bono representation. The number to reach the State Bar Association of North Dakota is 701-255-1404 or toll-free 1-800-472-2685. 

Legal Services of North Dakota provides legal assistance in a variety of matters to low income and elderly North Dakotans. The number to reach Legal Services for those under age 60 is toll-free 1-800-634-5263.  The number to reach Legal Services for those over age 60 is toll-free 1-866-621-9886. 

The North Dakota Legal Self Help Center provides resources to people who represent themselves in civil matters in North Dakota state courts.  The number to reach the Center is 701-328-1852.  The Legal Self Help Center cannot provide legal advice.

Those who go ahead without the assistance of a lawyer are still expected to review the appellate rules and reasonably comply with them. Various legal resources may be helpful in writing a brief: the North Dakota Rules of Appellate Procedure, the North Dakota Century Code (containing all North Dakota statutes), and the Northwestern Reporter (containing published opinions of the Supreme Court and other selected states). These resources are available online, at many public libraries, and at the University of North Dakota School of Law Thormodsgard Library.

When should I file my appeal?

You must file a notice of appeal within the specified time to appeal with the clerk of the supreme court for the Supreme Court to consider your appeal.  A fillable form for a notice of appeal is located here. 

In civil cases, the notice of appeal must be received by the Clerk of the Supreme Court within 60 days after service of the notice of entry of the judgment or order being appealed. The filing fee must be paid before a notice of appeal will be filed. In no event will a filing fee be accepted more than 14 days after a notice of appeal is received by the Clerk of the Supreme Court. 

In a criminal case, the notice of appeal must be received by the Clerk of the Supreme Court 30 days after entry of the judgment or order being appealed on the criminal docket. 

All days are counted when computing the appeal period. The last day of the period is counted unless it is a day the clerk's office is closed for the weekend or a legal holiday. In that case, the period extends to the next day the clerk's office is open. You are responsible for knowing when the district court enters its final order and for computing the appeal period. Supreme Court personnel are not permitted to tell you when your notice of appeal is due or compute your appeal period for you.

Except in mental health or termination of parental rights cases, the appeal period may be extended by the Supreme Court as provided for in the rules. To seek an extension, a motion must be filed that shows excusable neglect or good cause for the extension. 

If a notice of appeal is filed by mail, it is not considered to be "filed" until the day the Clerk of Supreme Court actually receives it. 

In civil cases, any party may file a cross-appeal within 14 days after the filing of the first timely notice of appeal or within 60 days after service of the notice of entry of the final judgment or order from which the appeal is taken, whichever is later.

References: N.D.R.App.P. 4 and 26.

How do I file a notice of appeal?

A notice of appeal must be filed electronically by all parties except if self-represented or prisoner. Everyone is strongly encouraged to electronically file the notice of appeal.  If filed electronically, the notice of appeal should be attached to an email sent to supclerkofcourt@ndcourts.gov.

Self-represented or prisoner parties are permitted to file by hand-delivery or mail with the Clerk of the Supreme Court within the time mentioned above.

A notice of appeal or cross-appeal should contain the following information:

  • The name of the party or parties taking the appeal;
  • The date of the judgment or order sought to be reviewed;
  • The court, the judge, and the number of the case in the district court;
  • The name of the court to which the appeal is taken; and
  • A concise preliminary statement of issues

A fillable form for a notice of appeal is located here.

References: N.D.R.App.P. 3 and 4.

What does it cost to file a notice of appeal?

A nonrefundable $125 filing fee must be paid at the time a notice of appeal is filed in a civil matter. The filing fee must be paid before a notice of appeal will be filed. In no event will a filing fee be accepted more than 14 days after a notice of appeal is received by the Clerk of the Supreme Court. 

If you believe that you are indigent and are unable to pay the filing fee, you may file a Petition to Waive Filing Fee on Appeal and Affidavit. It must be completed in full, including the issues you intend to raise on appeal. The personal information you provide in the petition will help the Court decide whether you will be excused from paying the filing fee. A copy of the petition, as with any document you file with the Supreme Court, must be served on the opposing party's lawyer or the opposing party directly if the opposing party is not represented by a lawyer. 

The waiver of the filing fee does not waive any other fees or costs associated with your appeal. For instance, there may be costs if you order the transcript from the district court proceedings. None of these fees or costs, which are imposed by the district court, can be waived by the Supreme Court. If you mistakenly file a notice of appeal from an unappealable order or your appeal is dismissed for failure to comply with the rules, the filing fee you paid is not refunded.

References: N.D.C.C. § 27-03-05; N.D.R.App.P. 12.

Do I need to order transcripts?

If you intend to refer in your brief to testimony or argument that was heard in the district court, you must include an order for transcript with your notice of appeal. Your request must include the date or dates of the hearings that need to be transcribed. If you do not order a transcript, the Supreme Court will decide your appeal without it.  It will reject any argument that you make relying on facts that would have been in the transcript had you ordered one.

To request the transcript, you must file your request with the Clerk of the Supreme Court at the same time you file your notice of appeal. A fillable Order for Transcript form is located here. The party requesting the transcript is responsible for arranging to pay for the transcript. Any questions regarding a transcript, including questions regarding transcript costs or accuracy of the transcript, must be directed to the district court. The Supreme Court may review disputes over a transcript as part of the appeal.

References: N.D.R.App.P. 10.

What is the record?

The record consists of all the original papers and exhibits filed with the district court, including any transcripts ordered for an appeal.  It is maintained electronically in the Odyssey case management system. The district court will certify the images to the Supreme Court Clerk's office after the notice of appeal is filed and any transcripts are prepared. In some matters there are no physical record items, and the record is solely in an electronic form.

The record will include the transcript, if any was ordered; the complaint and other pleadings; pretrial orders; motions; any written orders, opinions, memoranda, or judgments by the district court; docket entries; jury instructions; and all documents and exhibits admitted into evidence by the district court. Also, any evidence that you presented to the district court (or administrative agency) that was not admitted into evidence is considered to be part of the record on appeal for determining the admissibility of the evidence. Material that you obtained from the other parties during the discovery process is not considered part of the record on appeal unless it was presented to the district court (or administrative agency) for its consideration and docketed by the district court clerk.

Remember, it is your responsibility to make sure that the record contains all of the important material necessary for the Supreme Court to decide your appeal. You may not raise an argument to the Supreme Court unless you raised the argument in the district court and the argument is supported by the record.

References: N.D.R.App.P. 10 and 11.

How do I file with the Supreme Court?

Appellate Rules 27, 28, 30, 31, 32, and 40 explain the form, contents, and time for filing a brief, motion, or petition for rehearing. 

You can find information on filing with this Court at: https://www.ndcourts.gov/supreme-court/filing.  If you file electronically, it is strongly encouraged to submit a text-searchable pdf.  

If you are self-represented, the Court will relax some of the rules regarding the form and content of your brief. Even if you are self-represented, however, the Court will strictly apply the following rules:

  • You are encouraged to electronically file your documents.  There is no fee to electronically file except you must pay $0.50 per page for a motion that exceeds 20 pages – including all attachments. All pages, except any certificate of compliance or service document, are included in the page count.
  • Documents submitted electronically should be text-searchable pdf.  They should be in black and white.  
  • If you submit a paper filed document by mail or third-party commercial carrier, submit one copy to the Clerk of the Supreme Court. All documents must be served on the lawyer for the other side, or the party, if they are not represented.  You must file proof of service.  A fillable declaration of service can be found here.
  • You must not exceed the page limits set in Rule 32.
  • You must file your brief by the deadline figured under the rules. If you need an extension of time to file your brief, you may file a motion for an extension, but you should do so prior to the date your brief is due.
  • You must be sure your brief is clearly legible, regardless of whether it is typed or handwritten.

All documents filed electronically must be served electronically except paper documents must be served when a self-represented litigant or prisoner cannot accept electronic service.  Refer to Rule 25.

The Appellant's Brief 

The Appellant's brief is a written document explaining why you are appealing and what you think is wrong with the decision of the district court. The opening brief is limited to 38 pages.

The Clerk of the Supreme Court has no obligation to tell the parties the due dates of briefs or other filings. However, various correspondence from the Clerk's office will be sent out during the appeal process that may refer to rules or due dates. 

If necessary, you may request an extension of a due date by filing a motion for an extension of time with the Court under Rules 26(b) and 27. Extensions of time are not automatically granted, and good cause must be shown for an extension. The fact that someone is self-represented may not alone be good cause for an extension. 

If you believe oral argument should be held in your case, the cover of your brief must state “Oral Argument Requested” and your brief must contain a short statement explaining why oral argument would be helpful to the Court. 

All briefs must be concise, presented with accuracy, logically arranged with proper headings, and free from burdensome, irrelevant, or immaterial matters. It is the most helpful to the Court in understanding your issues on appeal if you divide your opening brief into the following sections: 

  • If you believe oral argument should be held in your case, the cover of your brief must state “Oral Argument Requested”.
  • A table of contents;
  • A table of citations, alphabetically listing all legal authorities cited in your brief;
  • A statement of issues presented for review;
  • A short statement explaining why oral argument would be helpful to the Court (if you are requesting oral argument).
  • The nature of the proceedings, which describes the district court proceedings, including the judgment to be reviewed;
  • A statement of the facts relevant to issues presented for review, including only facts that were presented to the district court and are supported by the record;
  • An argument, which divides each of the issues you want to raise into separate subsections with discussion on each; and
  • A conclusion, which briefly tells the Court what remedy you are seeking.
  • A certificate of compliance stating that the document complies with the page limitation and stating the number of pages in the document.

Although the Court will be flexible about the form and content of your brief if you are representing yourself, you still should present your brief in as organized a fashion as you possibly can. Of the requirements imposed by N.D.R.App.P. 28, three are essential for the Supreme Court's review. At a minimum, a brief of a self-represented litigant must contain a statement of the issues presented for review; a statement of the facts and–where those facts are disputed–references to the district court record supporting the appellant's statement of the facts; and the appellant's legal argument, including the authorities on which the appellant relies.

All pages, except the certificate of compliance and service document, are included in the page count. 

You may refer to paragraph nine of the opinion in State v. Noack, 2007 ND 82, 732 N.W.2d 389, which sets out the minimum requirements for a self-represented party's brief.

The Appellee's Brief

The Appellee's brief is the other side's opportunity to respond to the Appellant's brief and tell the Supreme Court why the decision of the district court was correct. The Appellee's brief is due 30 days after service of the Appellant's brief. The Appellee's brief is also limited to 38 pages. It should include all of the same sections discussed above for the Appellant's brief.

If an Appellee believes oral argument should be held in your case, the cover of the brief must state “Oral Argument Requested” and the brief must contain a short statement explaining why oral argument would be helpful to the Court. 

If you are the Appellee and do not wish to file a brief, tell the Clerk of the Supreme Court in writing, and send a copy to the other side. You will not be allowed to argue at any oral argument. However, this does not mean an automatic "win" for the other side. See N.D.R.App.P. 28. The Appellant still has the burden of showing why the district court was wrong.

The Reply Brief

The Appellant may file a reply brief in response to the Appellee's brief. A reply brief is not required. The reply brief is due 14 days after service of the Appellee's brief and is limited to 12 pages. The reply brief should not contain any new arguments or issues, nor should it repeat what you said in your opening brief. The purpose of the reply brief is to respond to any points raised in the Appellee's brief that you did not address in your opening brief.

References: N.D.R.App.P. 28, 31, and 32.

Citations to the Record in Briefs

As of March 1, 2022, appendices are no longer filed in the Supreme Court for appeals.  However, in any brief, you must properly cite directly to the record. 

Reference to any material contained in the record, including transcripts, must be made as follows:  a parentheses the capital letter “R” followed by the index number of the item followed by a colon and the specific page within the item where the information referred to is located. 

Example:   (R156:12) - Record index number 156, page 12. 

If applicable, paragraph or line numbers must be included after the page number.

Examples:  (R156:12:¶3) - Record index number 156, page 12, paragraph 3.   

      (R156:12:3) - Record index number 156, page 12, line 3 

References to a video or audio recording in the record must be made by identifying the recording and providing specific, time-coded locations of the relevant portions.

          Example:  (R156:2:14:34) – Record index number 156, time stamp 2 hours, 14 minutes, 34 seconds.

Oral Argument

Not all cases will be scheduled for oral argument.  Please refer to Rule 34. There is no right to appear personally before the Court and provide oral argument. The Court may decide oral argument is unnecessary, even if the parties request argument. 

Oral argument is held in the Supreme Court in-person or by reliable electronic means. Currently, the Court uses Zoom for reliable electronic means arguments. The policy of the Court is that arguments are in-person unless the parties agree to use reliable electronic means. 

If scheduled for argument, your case will be scheduled for oral argument after the brief of the Appellee or Respondent is filed. The Clerk's office will notify you when your case is scheduled for oral argument. If argument has been scheduled and you did not request oral argument, but wish to appear, you may file an intent to participate in oral argument within five days of the notice of the time and date of argument.  The notice must be served on the other party or parties. 

Either party or both parties may request to waive argument and submit the case on the briefs. If the Court decides argument is unnecessary, no argument will be held, the case will be considered on the briefs and record, and you will be notified at least one week prior to the scheduled date of argument.  The Court may deny requests to waive argument. 

If oral argument is heard, the Appellant will have 30 minutes to present argument and answer the Court's questions, and the Appellee will have 20 minutes. The Appellant opens and may reserve time, called rebuttal, to conclude the argument. You do not need to use all of your time. The Court prefers that you not use all the time allotted to you if you do not need it.

References: N.D.R.App.P. 34.

When will the Supreme Court decide my case?

In most cases, the Court will issue a final written decision between 60 to 90 days after the scheduled argument date. The decision will be electronically forwarded to you if an email address or fax number is provided; otherwise, it will be mailed.

References: N.D.R.App.P. 36.

What can I do if I lose on appeal?

In most cases, the Court will issue a final written decision between 60 to 90 days after the scheduled argument date. The decision will be electronically forwarded to you if an email address is provided; otherwise, it will be mailed.

References: N.D.R.App.P. 36.

The Supreme Court is the highest court in this State. Therefore, if you lose on appeal to this Court, there is no other State court to which you can appeal. You may file a petition for rehearing with the Supreme Court, however, stating each point of law or fact that you believe the Court has overlooked or misunderstood in their written decision. A response to the petition is not permitted unless requested by the Court, and oral argument on the petition will not be scheduled unless requested by the Court. 

Petitions for rehearing are due within 14 days after the filing of the Court's final decision in the case. As with any brief, there is a page limit for petitions. A petition for rehearing may not exceed 10 pages. Petitions for rehearing are rarely granted in any case and, if granted, rarely lead to a different result.

Once the Court has issued its final decision and resolved any pending petitions for rehearing, the unsuccessful party may try to seek relief in the federal courts. The procedure for seeking such relief is beyond the scope of this guide and the jurisdiction of this Court. 

References: N.D.R.App.P. 31, 32, 40, and 41.

The information provided on and obtained from this site does not constitute the official record of the Court. This information is provided as a service to the general public. Any user of this information is hereby advised that it is being provided "as is". The information provided may be subject to errors or omissions. Visitors to this site agree that the Court is not liable for errors or omissions of any of the information provided.

If you have a question relating to a district court case or records, please contact the clerk of court for the county.