Lawyers should be prepared for significant changes in appeal procedure effective March 1, 2019, due to rule amendments recently adopted by the Supreme Court. The new procedures will apply to all cases in which the Notice of Appeal is filed after March 1. Attorneys who plan to commence appeals after March 1 should review the rule amendments carefully.
See the details of the March 1 rule amendments here.
In cases in which the Notice of Appeal was filed before March 1, the pre-2019 appellate rules will apply throughout the case until the issuance of the mandate.
Under amendments to Rule 25 on filing and service, all parties other than self-represented litigants and prisoners will be required to file their appeals electronically. In line with this requirement, Rule 31 on filing and service of briefs is amended to require that briefs generally be served electronically.
Additional amendments to Rule 25 eliminate most fees that applied specifically to electronically filed documents, although parties who file appendices longer than 100 pages or motion papers longer than 20 pages will still be required to pay a surcharge.
New language in Rule 25 also sets out requirements for PDF documents filed electronically. PDF documents must be directly converted from a word processing file, rather than scanned, if possible. When a filed PDF document is produced by scanning, it should be text-searchable. The rule prohibits filing electronic documents that are locked or password protected, or that contain embedded files or scripts.
With the shift to electronic filing, Rule 32 on document form and Rule 40 on the petition for rehearing are amended to eliminate word count limits in documents in favor of page count limits. Page numbering must begin on the cover page with the arabic number 1 and continue consecutively to the end of the document. Rule 32 also will require a certificate of compliance with page count requirements.
Another important change in appellate practice is a new requirement that attorneys who seek oral argument in a case make a request for argument and provide a rationale. Amendments to Rule 28 on briefs provide that if oral argument is requested, the cover of a brief indicate “Oral Argument Requested” and the brief contain a short statement explaining why oral argument would be helpful to the court.
Meanwhile, new language in Rule 34 on oral argument outlines when argument will or will not be scheduled. Specifically, new rule language states that: “(1) Oral argument generally will be scheduled unless: (a) a party has failed to file a timely brief; (b) a party has challenged the sufficiency of the findings of fact or the adequacy of the evidence supporting a finding of fact but has failed to provide the court with the related transcripts; (c) no request for oral argument has been made by any party as required by Rule 28(h); (d) the parties have agreed to waive oral argument; or (e) the court, in the exercise of its discretion, determines oral argument is unnecessary.”
Amendments to Rule 3 will require a concise statement of preliminary issues to be filed for all appeals. The rule previously required the statement of issues only in civil and post-conviction relief appeals.
Other amendments to the Rules of Appellate Procedure include:
Rule 2.1, Mental Health Appeals under Chapter 25-03.1, North Dakota Century Code. Amendments are made to clarify that extensions of time to file a notice of appeal are not permitted in mental health appeals under this rule.
Rule 14, Identity Protection. Amendments are made to change the identity protection language for termination appeals to mirror that used in conservatorship and guardianship appeals.
Rule 24. Supplemental Statement of Indigent Defendant. Amendments are made to allow a supplemental statement by an indigent petitioner in a criminal or post-conviction case. Previously, a supplemental statement was only allowed in criminal appeals.
Rule 35.1 - Summary Disposition. Amendments are made to allow the Supreme Court to affirm the judgment of the district court based on findings of fact that meet the required standard of proof.