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Court considering rule amendments related to unsworn declarations Monday, October 12, 2020

The Joint Procedure Committee has proposed wide-ranging amendments to the rules of procedure consistent with the Uniform Unsworn Domestic Declarations Act.

The act, which is found in Chapter 31-15 of the North Dakota Century Code, generally allows an unsworn declaration that meets defined requirements to be used as an alternative to a sworn declaration, such as an affidavit. 

The Supreme Court amended Civil Procedure Rule 11 in 2018 to allow unsworn declarations. In September 2019, Criminal Procedure Rule 3 on complaints, Rule 4 on arrest warrants and summonses, and Rule 41 on search and seizure were similarly amended.

The newly proposed amendments would replace the word “affidavit” throughout the rules with “declaration.” The intent of this change is to make the language and requirements of the rules consistent with those of the act.

For example, under the proposed changes the “affidavit of mailing” currently required under Civil Procedure Rule 4(k) would become a “declaration of mailing” and would be prepared by a “declarant” rather than an “affiant.”

While a person making an unsworn declaration does not need to have the document notarized, merely signing the document is not adequate. To be valid, an unsworn declaration must comply with the form requirements outlined in Section 31-15-05.  Specifically, an unsworn declaration must be made “under penalty of perjury under the law of North Dakota.”

Chapter 31-15 is derived from the Uniform Unsworn Declarations Act, which was drafted by the Uniform Law Commission and finalized in 2016.  This act was a follow-up to the Uniform Unsworn Foreign Declarations Act, which covers unsworn declarations made outside the boundaries of the United States. North Dakota adopted the foreign declarations act as N.D.C.C. ch. 31-14 in 2011.

The federal government, under 28 U.S. Code Section 1746, has allowed the general use of unsworn declarations since 1976.  In 2014, Minnesota authorized the use of unsworn declarations in court documents when it adopted Minn. Stat. Section 358.116.

A longstanding justification for allowing the use of unsworn declarations to support court documents has been to ease the burdens faced by self-represented litigants, who may not have the same access to notary publics as attorneys. The 2018 changes to Civil Procedure Rule 11, however, were initially prompted by concerns that continuing to require notarization of documents in a world where most litigants were filing electronically wasted time and resources for parties.

Criminal Procedure Rules 3, 4 and 41 were first amended to allow unsworn declarations after the United States Supreme Court held in Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), that search warrants were required for blood tests on suspected drunk drivers.  Because of this ruling, rule changes were proposed to streamline the process for applying for warrants.  Rules 3, 4 and 41 were amended in December 2016 to allow the grounds for issuance of a search warrant to be established in a written declaration by a licensed peace officer made and subscribed under penalty of perjury. The amendments were intended to facilitate submission of electronic documents to establish the grounds for warrants.

Detailed information about the Joint Procedure Committee’s proposed rule amendments related to the Uniform Unsworn Domestic Declarations Act -- and other procedural rules -- can be found on the North Dakota Supreme Court website at: /supreme-court/dockets/20200229