CHAPTER 27-01 General Provisions

27-01-01. Courts composing judicial system of state — Those constituting courts of record.

The following are the courts of justice of this state:

  1. The supreme court;
  2. The district courts; and
  3. Such other courts as are or may be created by law for cities.

Of these the supreme court and the district courts are courts of record.

Source:

C. Civ. P. 1877, § 18; R.C. 1895, § 5162; R.C. 1899, § 5162; R.C. 1905, § 6748; C.L. 1913, § 7336; R.C. 1943, § 27-0101; S.L. 1981, ch. 320, § 48; 1987, ch. 374, § 11; 1989, ch. 379, § 1; 1991 ch. 326, § 79; 1993, ch. 24, § 6; 1995, ch. 294, § 1; 1999, ch. 277, § 1.

Derivation:

Wait’s (N.Y.) Code, 9; Harston’s (Cal.) Practice, 33.

Cross-References.

Judicial branch, see N.D. Const., Art. VI.

Military court, see chapter 37-09.

Provisions creating juvenile court, see chapter 27-20.

Temporary seal for court of record, see § 44-08-07.

Notes to Decisions

Municipal Courts.

Although municipal courts are not courts of record, they nevertheless appear subject to the requirements of N.D.R.Crim.P., Rule 11(f). City of Fargo v. Christiansen, 430 N.W.2d 327, 1988 N.D. LEXIS 204 (N.D. 1988).

Supreme Court of North Dakota held that post-conviction relief under N.D.C.C. ch. 29-32.1 was not available in municipal courts in North Dakota, because municipal courts were not courts of record under N.D.C.C. § 27-01-01. If an appeal from municipal court directly to the Supreme Court was proper, review would be impossible because of the lack of a record; therefore, the municipal court judgment denying petitioner’s application for post-conviction relief was void. Holbach v. City of Minot, 2012 ND 117, 817 N.W.2d 340, 2012 N.D. LEXIS 109 (N.D. 2012).

27-01-01.1. Budgeting and financing of the supreme court and district courts.

The state court administrator shall submit a comprehensive budget for the supreme court and the district courts to the legislative assembly. An informational copy of the budget must be delivered to the director of the budget pursuant to section 54-44.1-13. The budget for the district courts must include all salary and expenses for the district courts, including the juvenile courts, and their employees. Each county shall provide the district court in that county with adequate chamber, court, and law library quarters, and lights and fuel and appropriate facilities for clerk of court services that are state-funded pursuant to section 27-05.2-02. Any equipment, furnishings, and law libraries in the control and custody of the district court on January 1, 1980, and any such property acquired from that date until July 1, 1981, must continue to be in the district court’s custody and control until the state court administrator determines such items are no longer needed by the court.

Source:

S.L. 1981, ch. 319, § 37; 1983, ch. 82, § 53; 1989, ch. 138, § 7; 1991, ch. 326, § 80; 1999, ch. 278, § 49.

27-01-02. Sittings of courts public — When public may be excluded.

The sittings of every court of this state must be public, and every citizen may freely attend the same, except that on the trial of cases of a scandalous or obscene nature the presiding judge or justice may exclude therefrom all persons not necessarily present as parties or witnesses.

Source:

S.L. 1890, ch. 104, § 1; R.C. 1895, § 5163; R.C. 1899, § 5163; R.C. 1905, § 6749; C.L. 1913, § 7337; R.C. 1943, § 27-0102.

Cross-References.

For provisions pertaining to electronic and photographic coverage of court proceedings, see Administrative Rule 21, North Dakota Court Rules Annotated.

Notes to Decisions

State’s Attorney’s Inquiry.

State’s attorney’s inquiries conducted under N.D.C.C. § 11-16-15 are a judicial function and are open to the public. KFGO Radio v. Rothe, 298 N.W.2d 505, 1980 N.D. LEXIS 296 (N.D. 1980).

Collateral References.

Exclusion of public during criminal trial, 48 A.L.R.2d 1436, 39 A.L.R.3d 852.

Validity and construction of constitution or statute authorizing exclusion of public in sex offense cases, 39 A.L.R.3d 852.

Propriety of order forbidding news media from publishing names and addresses of jurors in criminal cases, 36 A.L.R.4th 1126.

Exclusion of public from state criminal trial in order to prevent disturbance by spectators or defendant, 55 A.L.R.4th 1170.

Exclusion of public from state criminal trial in order to avoid intimidation of witness, 33 A.L.R.6th 1.

Exclusion of public from state criminal trial by conducting trial or part thereof at other than regular place or time, 70 A.L.R.4th 632.

Determination of Request for Exclusion of Public from State Criminal Trial in Order to Preserve Safety, Confidentiality, or Well-Being of Witness Who Is Not Undercover Police Officer — Issues of Proof, Consideration of Alternatives, and Scope of Closure, 32 A.L.R.6th 171.

Basis for Exclusion of Public from State Criminal Trial in Order to Preserve Safety, Confidentiality, or Well-Being of Witness Who Is Not Undercover Police Officer, 33 A.L.R.6th 1.

27-01-03. Courts not open on Sundays and holidays — Jurisdiction of magistrates on such days. [Repealed]

Superseded by N.D.R.Crim.P., Rule 56.

27-01-04. Authority of judges of the district and county courts in bankruptcy proceedings. [Repealed]

Repealed by S.L. 1991, ch. 326, § 203.

27-01-05. Expenses on change of venue. [Repealed]

Repealed by S.L. 1991, ch. 326, § 203.

27-01-06. Payment of expenses on change of venue. [Repealed]

Repealed by S.L. 1995, ch. 54, § 44.

27-01-07. Civil action fees — Waiver.

Any filing fees connected with any civil action to be heard in any of the courts of the judicial system as listed in section 27-01-01 may be waived with or without a hearing, at the court’s discretion, by the filing of an in forma pauperis petition accompanied by a sworn affidavit of the petitioner relating the pertinent information regarding indigency.

Source:

S.L. 1977, ch. 254, § 1.

Notes to Decisions

Discretion of Court.

Indigency is the threshold for the granting of leave to proceed in forma pauperis. Yet, even if indigency is alleged sufficiently, the trial court still has discretion to deny a petition according to the language of this section. Patten v. Green, 369 N.W.2d 105, 1985 N.D. LEXIS 335 (N.D. 1985).

The legislature intended that a court be entitled to exercise its discretion in examining a request to proceed in forma pauperis. At the same time, the legislature contemplated that a court would not be allowed to arbitrarily deny such a request. Patten v. Green, 369 N.W.2d 105, 1985 N.D. LEXIS 335 (N.D. 1985).

Trial court did not abuse its discretion in denying inmate’s motion to proceed in forma pauperis where his claim against two prison employees lacked merit due to the fact that a prison employee cannot be held liable for damage to the property of a prisoner and because inmate failed to request, and therefore was not denied by the warden, access to his release aid account for court costs. Vogel v. Braun, 2001 ND 29, 622 N.W.2d 216, 2001 N.D. LEXIS 36 (N.D. 2001).

District court did not abuse its discretion in refusing to waive a wife’s filing fees because the district court had sufficient information on the wife’s financial circumstances based on the affidavits and testimony at the interim hearing, and in denying her petition, the district court acted in a reasonable manner, rather than arbitrarily. Rhodenbaugh v. Rhodenbaugh, 2019 ND 109, 925 N.W.2d 742, 2019 N.D. LEXIS 104 (N.D. 2019).

Marriage Dissolution Fee.

The marriage dissolution fee does not significantly interfere with a person’s right to obtain a divorce; the fee does not prohibit a person from a divorce because it may be waived if the applicant is indigent. Gange v. Clerk of Burleigh County Dist. Court, 429 N.W.2d 429, 1988 N.D. LEXIS 254 (N.D. 1988).

Review on Appeal.

Review of the district court’s decision denying a petitioner’s request to proceed in forma pauperis in a civil action is limited to determining whether or not the court abused its discretion. Patten v. Green, 369 N.W.2d 105, 1985 N.D. LEXIS 335 (N.D. 1985).

Right to Waiver.

There is no constitutional right to the waiver of fees in a civil action. Patten v. Green, 369 N.W.2d 105, 1985 N.D. LEXIS 335 (N.D. 1985).

Unlike this section, which allows any court in the judicial system to waive, at its discretion, filing fees for indigents in a civil action, the language of N.D.R.App.P., Rule 7 indicates that a request concerning a bond for costs on appeal must be made to the trial court. Federal Land Bank v. Overboe, 426 N.W.2d 1, 1988 N.D. LEXIS 147 (N.D. 1988).

27-01-08. Service of process by mail by federal marshals. [Repealed]

Repealed by S.L. 1981, ch. 314, § 1.

27-01-09. Reciprocal recognition of certain state and tribal court judgments, decrees, and orders — Conditions.

The district courts shall recognize and cause to be enforced any judgment, decree, or order of the tribal court of the Three Affiliated Tribes of the Fort Berthold Reservation in any case involving the dissolution of marriage, the distribution of property upon divorce, child custody, adoption, an adult abuse protection order, or an adjudication of the delinquency, dependency, or neglect of Indian children if the tribal court had jurisdiction over the subject matter of the judgment, decree, or order. The tribal court judgment, decree, or order must be rendered by a judge who is a graduate of an accredited law school and holds a current valid license to practice law in at least one state. A state court may inquire as to the facts of the case or tribal law only to the extent necessary to determine whether the tribal court had jurisdiction over the subject matter of the judgment, decree, or order and personal jurisdiction over the parties to the action. Recognition and enforcement of tribal court judgments, decrees, and orders under this section is conditioned upon recognition and enforcement of state court judgments, decrees, and orders by the tribal court of the Three Affiliated Tribes and tribal law enforcement agencies under the same limitations provided by this section for recognition and enforcement of tribal court judgments, decrees, and orders by state courts.

Source:

S.L. 1989, ch. 381, § 1; 1991, ch. 326, § 81.

Notes to Decisions

Discretion of Court.

This section does not limit state courts’ discretion to voluntarily recognize and enforce tribal court judgments as a matter of comity, as this section merely limits state courts’ discretion to deny enforcement of tribal court judgments by requiring state courts to recognize and enforce certain tribal court judgments under some conditions. Fredericks v. Eide-Kirschmann Ford, Mercury, Lincoln, 462 N.W.2d 164, 1990 N.D. LEXIS 227 (N.D. 1990).

27-01-10. Fee assessments for funding crime victim and witness programs.

  1. The governing body of a county shall, by resolution, authorize the district judges serving that county to assess a fee under subsection 3 of not more than twenty-five dollars as part of a sentence imposed on a defendant who pleads guilty to or is convicted of a criminal offense or of violating a municipal ordinance for which the maximum penalty that may be imposed by law for the offense or violation includes imprisonment.
  2. The governing body of a city shall, by ordinance, authorize a municipal judge to assess a fee under subsection 3 of not more than twenty-five dollars as part of a sentence imposed on a defendant who pleads guilty to or is convicted of violating a municipal ordinance for which the maximum penalty that may be imposed under the ordinance for the violation includes imprisonment.
  3. The governing body of the county or city shall determine the amount of the fee to be assessed in all cases or it may authorize the district or municipal judge to determine the amount of the fee to be assessed in each case. The fee assessed under this section is in addition to any fine, penalty, costs, or administrative fee prescribed by law. The district or municipal judge shall assess the fee when sentence is imposed or when sentence is suspended or imposition of sentence is deferred, unless the defendant is indigent and unable to pay the fee. All fees paid to a district or municipal court under this section must be deposited monthly in the county or city treasury for allocation by the governing body of the county or city to one or more of the following programs as determined by the governing body or by agreement of the attorney general, the North Dakota league of cities, and the North Dakota association of counties:
    1. A private, nonprofit domestic violence or sexual assault program.
    2. A victim and witness advocacy program of which the primary function is to provide direct services to victims of and witnesses to crime.
    3. The statewide automated victim information and notification system, as provided for under chapter 12.1-34.

Source:

S.L. 1989, ch. 380, § 1; 1991, ch. 326, § 82; 1997, ch. 51, § 21; 2017, ch. 3, § 11, effective July 1, 2017.

CHAPTER 27-02 Supreme Court

27-02-01. Appointment and duties of chief justice of the supreme court.

The judges of the supreme court and district courts shall appoint from the members of the supreme court a chief justice who shall serve for a term of five years or until that justice’s term expires, whichever shall first occur. The chief justice may resign the office of chief justice without resigning from the office of judge of the supreme court. The chief justice shall preside at all terms of the supreme court. In the absence of the chief justice, the judge having the shortest term to serve shall preside in the chief justice’s stead.

Source:

S.L. 1909, ch. 71, § 1; C.L. 1913, § 721; R.C. 1943, § 27-0201; S.L. 1967, ch. 245, § 1.

Cross-References.

Chief justice member of board of control for distribution of laws, see § 46-04-01.

Constitutional creation of supreme court, see N.D. Const., Art. VI, § 1.

Constitutional jurisdiction of supreme court, see N.D. Const., Art. VI, §§ 2, 3.

Constitutional provision relating to the designation of the chief justice, see N.D. Const., Art. VI, § 2.

Disqualification of a justice or judge, see N.D. Const., Art. VI, § 11.

Election of justices of supreme court, see N.D. Const., Art. VI, § 7.

For provisions pertaining to the administrative authority of the chief justice and administrative justices of the court, see Administrative Rule 11, North Dakota Court Rules Annotated.

Justices of supreme court, number, see N.D. Const., Art. VI, § 2.

Mode of filling vacancies on supreme court, see N.D. Const., Art. VI, § 13.

Prohibition against supreme court justice acting as attorney or counselor at law, see N.D. Const., Art. VI, § 10.

Prohibition against supreme court judge holding offices other than judicial offices, see N.D. Const., Art. VI, § 10.

Qualifications of justices, see N.D. Const., Art. VI, § 10.

Removal from office, see chapter 44-09.

Retirement, age and term of service, see chapter 27-17.

Retirement, disability, see §§ 27-05-03.1, 27-05-03.2.

Surrogate justices of supreme court, see § 27-17-03.

Term of office of justices of supreme court, see N.D. Const., Art. VI, § 7.

Unified judicial system, chief justice as head, see N.D. Const., Art. VI, § 3.

Law Reviews.

Judicial Planning in North Dakota: Systematized Anticipation for Balanced Progress, 54 N.D. L. Rev. 47 (1977).

Political Realities and Democratic Ideals: Accession and Competition in a State Judicial System, 54 N.D. L. Rev. 187 (1977).

27-02-02. Salaries of justices of supreme court.

The annual salary of each justice of the supreme court is one hundred sixty-five thousand eight hundred forty-five dollars through June 20, 2022, and one hundred sixty-nine thousand one hundred sixty-two dollars thereafter. The chief justice of the supreme court is entitled to receive an additional four thousand six hundred ninety dollars per annum through June 30, 2022, and four thousand seven hundred eighty-four dollars per annum thereafter.

Source:

R.C. 1895, § 379; R.C. 1899, § 379; S.L. 1903, ch. 194, § 2; R.C. 1905, § 445; C.L. 1913, § 719; S.L. 1917, ch. 224, § 1; 1925 Supp., § 719; I.M. November 8, 1932, S.L. 1933, p. 503; R.C. 1943, § 27-0202; S.L. 1944 Sp., ch. 33, § 1; 1947, ch. 234, § 1; 1951, ch. 196, § 1; 1953, ch. 200, § 1; 1957 Supp., § 27-0202; S.L. 1959, ch. 248, § 1; 1967, ch. 246, § 1; 1975, ch. 266, § 1; 1977, ch. 255, § 1; 1979, ch. 358, § 1; 1981, ch. 315, § 1; 1983, ch. 345, § 2; 1985, ch. 26, § 3; 1989, ch. 31, § 4; 1991, ch. 2, § 4; 1991, ch. 53, § 6; 1995, ch. 2, § 9; 1997, ch. 31, § 10; 1999, ch. 2, § 7; 2001, ch. 27, § 8; 2005, 15, § 14; 2005, ch. 30, § 6; 2007, ch. 2, § 6; 2009, ch. 30, § 4; 2011, ch. 2, § 4; 2013, ch. 33, § 6; 2015, ch. 2, § 6, effective July 1, 2015; 2019, ch. 2, § 4, effective July 1, 2019; 2021, ch. 30, § 10, effective July 1, 2021.

Effective Date.

The 2015 amendment of this section by section 6 of chapter 2, S.L. 2015 became effective July 1, 2015.

Cross-References.

Compensation of surrogate judges, see § 27-17-03.

Compensation not to be diminished during a justice’s term of office, see N.D. Const., Art. VI, § 7.

Fees not part of compensation, see N.D. Const., Art. VI, § 10.

27-02-02.1. Additional compensation — Supreme and district court judges. [Repealed]

Repealed by S.L. 1975, ch. 266, § 3.

27-02-03. Stenographers for supreme court.

The supreme court may employ such stenographic assistance as may be necessary, but the salaries and expenses therefor may not exceed the amount appropriated for salaries and expenses by the legislative assembly.

Source:

S.L. 1897, ch. 137, §§ 1, 2; R.C. 1899, §§ 378b, 378c; R.C. 1905, §§ 443, 444; S.L. 1907, ch. 80, § 1; C.L. 1913, §§ 717, 718; R.C. 1943, § 27-0203; S.L. 1981, ch. 535, § 7.

27-02-04. Jurisdiction of supreme court — Appellate — Original.

The supreme court may exercise appellate jurisdiction only, except when otherwise specially provided by law or by the constitution. Such court, in the exercise of its original jurisdiction, may issue writs of habeas corpus, mandamus, quo warranto, certiorari, and injunction. In the exercise of its appellate jurisdiction, and in its superintending control over inferior courts, it may issue such original and remedial writs as are necessary to the proper exercise of such jurisdiction. Such court shall exercise its original jurisdiction only in habeas corpus cases and in such cases of strictly public concern as involve questions affecting the sovereign rights of this state or its franchises or privileges.

Source:

S.L. 1891, ch. 118, § 1; R.C. 1895, § 5165; R.C. 1899, § 5165; R.C. 1905, § 6751; C.L. 1913, § 7339; R.C. 1943, § 27-0204.

Notes to Decisions

General Jurisdiction.

A court of general jurisdiction has the inherent power to set aside a judgment or decree procured by the successful party through fraud or deceit practiced upon the complaining party. Yorke v. Yorke, 3 N.D. 343, 55 N.W. 1095, 1893 N.D. LEXIS 30 (N.D. 1893).

Habeas Corpus.

A final order discharging a petitioner in a habeas corpus proceeding is not reviewable by appeal, but may be reviewed through the supreme court’s exercise of the constitutional power of superintending control. State ex rel. Bismarck v. District Court, 64 N.D. 399, 253 N.W. 744, 1934 N.D. LEXIS 213 (N.D. 1934).

For persons arrested for or convicted of violating a criminal law, post-conviction relief has superseded habeas corpus as a remedy in most situations; without expressly stated circumstances warranting an exception, supreme court will decline to hear applications for habeas corpus which properly belong under post-conviction remedies. Smith v. Satran, 295 N.W.2d 118, 1980 N.D. LEXIS 267 (N.D. 1980).

In General.

This section was in harmony with the similar power of the trial court set out in N.D.R.Civ.P., Rule 62 and section 87 of the constitution of 1889 (see now, Article VI, § 3). Brusegaard v. Schroeder, 199 N.W.2d 921, 1972 N.D. LEXIS 176 (N.D. 1972).

Injunctions.

A final judgment dissolving a temporary injunction in dismissing a claim for a permanent injunction is not subject to stay by supersedeas, but when an appeal is filed the trial court may, in its discretion, restore the temporary injunction during the pendency of the appeal. However, refusal of trial court to do so does not limit supreme court’s power to grant a temporary injunction during pendency of the appeal to preserve status quo of the parties as an aid in the exercise of its appellate jurisdiction. Brusegaard v. Schroeder, 199 N.W.2d 921, 1972 N.D. LEXIS 176 (N.D. 1972).

Original Jurisdiction.
—In General.

The legislature has no power to impose upon the supreme court the exercise of any original jurisdiction whenever not specially authorized by the constitution. Christianson v. Farmers' Warehouse Ass'n, 5 N.D. 438, 67 N.W. 300, 1896 N.D. LEXIS 45 (N.D. 1896).

The supreme court cannot, in the exercise of its original jurisdiction, interfere with or supervise the conduct of the members of the state central committee of the respective parties of the state in the selection of their officers. State ex rel. McArthur v. McLean, 35 N.D. 203, 159 N.W. 847, 1916 N.D. LEXIS 152 (N.D. 1916).

An original proceeding challenging the constitutionality of apportionment and seeking an order restraining the secretary of state from acting in furtherance of the election of members of the house of representatives was a controversy affecting the sovereignty of the state and the franchises, prerogatives and liberties of the people and was within the jurisdiction of the supreme court as prescribed by section 87 of the constitution of 1889 (see now Art. VI, § 3). State ex rel. Lein v. Sathre, 113 N.W.2d 679, 1962 N.D. LEXIS 62 (N.D. 1962).

The supreme court will not exercise original jurisdiction concerning a motion to suppress evidence which involves a private interest and not a matter which directly affects the interests of the public at large. Gasser v. Dorgan, 261 N.W.2d 386, 1977 N.D. LEXIS 180 (N.D. 1977).

Case involving high-level executive officer (governor) contending that the legislative branch had infringed upon authority granted to him by state constitution, seeking interpretation of a constitutional provision, and challenging validity of a legislative act, presented an actual controversy of a justiciable character and warranted supreme court’s exercise of original jurisdiction. State ex rel. Link v. Olson, 286 N.W.2d 262, 1979 N.D. LEXIS 319 (N.D. 1979).

—Injunction.

The supreme court, in the exercise of its original jurisdiction, can issue a writ of injunction only upon an information therefor filed by the attorney general or under his authority, and by leave of the court for which obtained, and in the name of the state. Anderson v. Gordon, 9 N.D. 480, 83 N.W. 993, 1900 N.D. LEXIS 159 (N.D. 1900).

—Mandamus.

It was the duty of the supreme court to exercise original jurisdiction on application for a writ of mandamus directed to the state auditor to require him to provide for payment of salaries of state board of tax commissioners. State ex rel. Birdzell v. Jorgenson, 25 N.D. 539, 142 N.W. 450, 1913 N.D. LEXIS 131 (N.D. 1913).

—Quo Warranto.

The supreme court assumed original jurisdiction where governor appointed judge of district court under law providing that the office should be filled by a general election, and a private relator applied for leave to file an application for a writ in the nature of a writ of quo warranto, where it was alleged that he had suits pending of strictly personal nature, that the interest of the public was involved and the sovereignty of the state was affected. State ex rel. Erickson v. Burr, 16 N.D. 581, 113 N.W. 705, 1907 N.D. LEXIS 66 (N.D. 1907).

Original Writs.
—Generally.

The supreme court, in the exercise of general superintending control over inferior courts, may issue such original writs as are necessary to the proper exercise of its jurisdiction. State ex rel. Shafer v. Lowe, 54 N.D. 637, 210 N.W. 501, 1926 N.D. LEXIS 72 (N.D. 1926), overruled in part, Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632, 1994 N.D. LEXIS 202 (N.D. 1994); State ex rel. Jacobson v. District Court, 68 N.D. 211, 277 N.W. 843, 1938 N.D. LEXIS 99 (N.D. 1938); 71 N.D. 306, 300 N.W. 460; Halland v. Verendrye Elec. Coop., 66 N.W.2d 902, 1954 N.D. LEXIS 114 (N.D. 1954).

—Mandamus.

The supreme court may issue an original writ of mandamus on refusal of county auditor to receive and file certificates of nominations for county officers made by a qualified political party. State ex rel. Fosser v. Lavik, 9 N.D. 461, 83 N.W. 914 (1900), distinguished, State ex rel. Byrne v. Wilcox, 11 N.D. 329, 91 N.W. 955 (1902) and State ex rel. Steel v. Fabrick, 17 N.D. 532, 117 N.W. 860, 1908 N.D. LEXIS 80 (N.D. 1908).

—Supervisory Writs.

In the exercise of its general superintending control over inferior courts, the supreme court may control the course of litigation in district courts to prevent injustice in cases where there is no appeal, or the remedy by appeal is inadequate. State ex rel. Lemke v. District Court, 49 N.D. 27, 186 N.W. 381, 1921 N.D. LEXIS 133 (N.D. 1921); State ex rel. Shafer v. District Court of Third Judicial Dist., 49 N.D. 1127, 194 N.W. 745, 1923 N.D. LEXIS 55 (N.D. 1923); State ex rel. Johnson v. Broderick, 75 N.D. 340, 27 N.W.2d 849, 1947 N.D. LEXIS 72 (N.D. 1947).

It is the duty of the supreme court to determine when a proper case is presented for the exercise of its superintending control. State ex rel. Shafer v. District Court of Third Judicial Dist., 49 N.D. 1127, 194 N.W. 745, 1923 N.D. LEXIS 55 (N.D. 1923); State ex rel. Johnson v. Broderick, 75 N.D. 340, 27 N.W.2d 849, 1947 N.D. LEXIS 72 (N.D. 1947); Stormon v. District Court, 76 N.D. 713, 38 N.W.2d 785, 1949 N.D. LEXIS 91, 1949 N.D. LEXIS 92 (N.D. 1949).

The supreme court’s power to exercise general superintending control over inferior courts is separate from its appellate and original prerogative jurisdictions, and applies both to criminal and civil proceedings. State ex rel. Jacobson v. District Court, 68 N.D. 211, 277 N.W. 843, 1938 N.D. LEXIS 99 (N.D. 1938); State ex rel. Johnson v. Broderick, 75 N.D. 340, 27 N.W.2d 849, 1947 N.D. LEXIS 72 (N.D. 1947).

The supreme court will not exercise its power of superintending control to review action of trial court in denying motion for judgment notwithstanding the disagreement of the jury where no emergency exists and no injury is apparent other than the inconvenience and expense of another trial. Stormon v. District Court, 76 N.D. 713, 38 N.W.2d 785, 1949 N.D. LEXIS 91, 1949 N.D. LEXIS 92 (N.D. 1949).

Application for supervisory writ will be denied unless action of trial court is such that it will result in grave or serious prejudice to applicant and for which applicant has no adequate remedy; application which sought to require trial court to vacate order refusing to enter default judgment and permitting defendant to file answer in breach of promise suit was denied where propriety of order could be raised by appeal. Ingalls v. Bakken, 167 N.W.2d 516, 1969 N.D. LEXIS 98 (N.D. 1969).

Where divorced husband asked for writ under this section on grounds that his wife had misled him in the divorce action, that children he was required to support were not his, and that he could not afford support payments but trial court had refused to hear motion to modify judgment while his support payments were delinquent, appeals court would nevertheless refuse to issue a writ, since trial judge was not a party to the proceeding, the children’s interests were not being adversely affected by trial court’s action, and possibility of wife’s having withheld important facts from trial court justified reopening the judgment below. Gill v. Gill, 211 N.W.2d 374, 1973 N.D. LEXIS 130 (N.D. 1973).

Superintending control of supreme court should not be used to compel clerk of district court to file notice of appeal since mandamus action was available in district court. Weichel v. Hansen, 219 N.W.2d 118, 1974 N.D. LEXIS 203 (N.D. 1974).

Supreme court considered it a proper case to exercise its superintending control over the district court by granting a petition requesting a change of venue before voir dire in a criminal trial where widespread pretrial publicity linking defendant and circumstances of the current murder charge with another murder for which defendant was convicted created a reasonable likelihood that defendant could not receive a fair and impartial trial in the present forum. Olson v. North Dakota Dist. Court, 271 N.W.2d 574, 1978 N.D. LEXIS 176 (N.D. 1978).

The North Dakota supreme court exercises its supervisory authority over district courts to prevent injustice in cases where there is no right to appeal or where the remedy by appeal is inadequate. This supervisory power is purely discretionary. Patten v. Green, 369 N.W.2d 105, 1985 N.D. LEXIS 335 (N.D. 1985).

It was appropriate for supreme court to exercise its supervisory jurisdiction over cases in which judge denied orders for change of judge. Traynor v. Leclerc, 1997 ND 47, 561 N.W.2d 644, 1997 N.D. LEXIS 56 (N.D. 1997).

Although an appeal on an interlocutory order was improperly before the Supreme Court, the court exercised its discretionary power to issue a supervisory writ ordering the trial court to dismiss plaintiff’s claim, finding that the trial court lacked subject matter jurisdiction over plaintiff’s claims and erred as a matter of law in denying defendant’s motion to dismiss. Dimond v. State, 1999 ND 228, 603 N.W.2d 66, 1999 N.D. LEXIS 242 (N.D. 1999).

Where any harm to defendant that might flow from Insurer’s intervention in the medical malpractice suit was capable of being remedied in an appeal from an adverse judgment, case was not one in which there was no adequate alternative remedy, requiring court to exercise its supervisory jurisdiction and issue a supervisory writ to prevent injustice. Roe v. Rothe-Seeger, 2000 ND 63, 608 N.W.2d 289, 2000 N.D. LEXIS 66 (N.D. 2000).

Supreme Court issued a supervisory writ where trial court lacked subject matter jurisdiction but refused to grant State’s motion to dismiss plaintiff’s claim under the North Dakota Human Rights Act though plaintiff failed to present a claim in compliance with N.D.C.C. § 32-12.2-04 given that State had no other adequate remedy because the denial of a motion to dismiss is not appealable. State v. Haskell, 2001 ND 14, 621 N.W.2d 358, 2001 N.D. LEXIS 18 (N.D. 2001).

Under N.D. Const. art. VI, § 2 and N.D.C.C. § 27-02-04, the Supreme Court of North Dakota had the authority to issue a supervisory writ reversing the district court’s order sealing the names of the jurors who sat on a highly publicized murder trial and the district court’s blanket closure of the trial jurors’ questionnaires because the case involved issues of vital concern about the interrelationship of guidelines for public and media access to court records, for juror privacy, and for a criminal defendant’s right to a fair trial, and because there was no adequate remedy by appeal to resolve those issues. Forum Communs. Co. v. Paulson, 2008 ND 140, 752 N.W.2d 177, 2008 N.D. LEXIS 141 (N.D. 2008).

Harmless conversation on an unrelated topic between bailiff, petitioner, and jurors during a recess at petitioner’s trial for driving under the influence did not warrant the mistrial that the trial court granted in the State’s favor and, thus, the state supreme court under its authority to grant supervisory writs, N.D. Const. art. VI, § 2 and N.D.C.C. § 27-02-04, could order the trial court to grant the motion to dismiss petitioner filed seeking dismissal of the relevant complaint in order to keep the State from retrying petitioner on that charge. Dismissal of the complaint was necessary to avoid trying petitioner in violation of petitioner’s right to be free from double jeopardy under the Fifth Amendment, U.S. Const. amend. V, which was made applicable to the states through the Fourteenth Amendment, U.S. Const. amend. XIV. Day v. Haskell, 2011 ND 125, 799 N.W.2d 355, 2011 N.D. LEXIS 124 (N.D. 2011).

Supreme Court of North Dakota lacked jurisdiction over a municipal court judgment denying petitioner’s application for post-conviction relief, because the appeal was not authorized by statute. The Supreme Court of North Dakota exercised its supervisory authority under N.D.C.C. § 27-02-04, because the case presented an important matter of public interest involving the jurisdiction of municipal courts over applications for post-conviction relief. Holbach v. City of Minot, 2012 ND 117, 817 N.W.2d 340, 2012 N.D. LEXIS 109 (N.D. 2012).

This was an appropriate case to exercise the court’s supervisory jurisdiction, because the trial court’ order compelling disclosure of the claimed privileged or protected information could not be “unmade” and the company’s remedy by later appeal from a judgment was not adequate. W. Horizons Living Ctrs. v. Feland, 2014 ND 175, 853 N.W.2d 36, 2014 N.D. LEXIS 179 (N.D. 2014).

Trial court’s decision compelling the company to comply with discovery provided a blanket authorization for disclosure of the insurer’s entire claims file and communications during settlement negotiations in a resident’s prior lawsuit against the company, but the trial court did not assess the possible impact of the lawyer-client privilege or the effect of communications during compromise negotiations; the trial court had not conducted a private review of the documents, and the record was inadequate to permit review of the order, and a supervisory writ was issued vacating the order compelling discovery, with directions. W. Horizons Living Ctrs. v. Feland, 2014 ND 175, 853 N.W.2d 36, 2014 N.D. LEXIS 179 (N.D. 2014).

N.D.C.C. § 12.1-32-02(9) was ambiguous as applied to the facts of a case because the district court held that defendant was not entitled to the benefit of a misdemeanor sentence, but in its oral pronouncement stated defendant would keep his “misdemeanor disposition”; because no adequate alternative remedy existed, defendant's request on appeal was treated as seeking a writ of supervision based on the oral pronouncement, and the supreme court exercised its discretionary supervisory jurisdiction. State v. Rath, 2017 ND 213, 901 N.W.2d 51, 2017 N.D. LEXIS 215 (N.D. 2017).

Supreme court exercised its discretion to review an issue raised in a mother's case because the mother had been incarcerated solely for contempt for well over 400 straight days, and the issue raised in the case was a question of first impression and involved a district court's authority to incarcerate persons found to be in contempt of court indefinitely; the issue was one of vital concern regarding matters of important public interest. Nygaard v. Taylor, 2017 ND 206, 900 N.W.2d 833, 2017 N.D. LEXIS 210 (N.D. 2017).

District court erred as a matter of law in denying the State's motion to dismiss respondent's negligence claim, where respondent failed to allege and support at least an intentional act done with the conscious purpose of inflicting the injury to overcome the State's immunity. Because the State had no adequate remedy to avoid defending a suit from which it had immunity, the Supreme Court granted the State's petition for a supervisory writ. State v. Haskell, 2017 ND 252, 902 N.W.2d 772, 2017 N.D. LEXIS 240 (N.D. 2017).

Appellate court exercised its supervisory jurisdiction to review a district court's decision in a criminal case to exclude a special agent's testimony as expert testimony not properly disclosed because the jury was impaneled pending a stay of the proceedings and the State of North Dakota lacked another adequate remedy as the State's ability to appeal was limited. If defendant were acquitted by the jury, the State could not appeal. State v. Louser, 2017 ND 10, 890 N.W.2d 1, 2017 N.D. LEXIS 10 (N.D. 2017).

Father was not entitled to a supervisory writ because nothing in the record suggested that the trial judge was biased or prejudiced, or that the case was an extraordinary case requiring the Supreme Court to exercise its discretion to prevent injustice. Rath v. Rath, 2018 ND 98, 909 N.W.2d 666, 2018 N.D. LEXIS 97 (N.D. 2018).

Supreme court exercised its supervisory jurisdiction because the district court’s decision denying the motion to dismiss filed by a doctor and a medical practice was contrary to N.D.C.C. § 28-01-46 and the supreme court’s precedent. Pierce v. Anderson, 2018 ND 131, 912 N.W.2d 291, 2018 N.D. LEXIS 137 (N.D. 2018).

Because the matter was resolved by pretrial diversion, there was no trial, verdict, or final judgment, the order approving pretrial diversion and the order to pay restitution were not appealable orders; however, although defendant’s appeal was not authorized by statute, the supreme court could and did exercise its supervisory jurisdiction to review the orders. State v. Jorgenson, 2018 ND 169, 914 N.W.2d 485, 2018 N.D. LEXIS 161 (N.D. 2018).

Supreme Court dismissed defendant’s appeal on counts 1, 2, and 5, referenced in the order approving pretrial diversion, for lack of jurisdiction because the order was not appealable under N.D.C.C. § 29-28-06 and the Supreme Court declined to exercise its supervisory jurisdiction under N.D. Const. art. VI, § 2, and N.D.C.C. § 27-02-04. State v. Abuhamda, 2019 ND 44, 923 N.W.2d 498, 2019 N.D. LEXIS 38 (N.D. 2019).

It was appropriate to exercise supervisory jurisdiction to determine whether a married person under 18 were a “child” under the Juvenile Court Act because time was of the essence, as (1) the person was 18, and (2) if the person were convicted in a district court found to lack jurisdiction, the case would have to begin anew in a juvenile court, which only had jurisdiction until the person was 20. State v. G.C.H, 2019 ND 256, 934 N.W.2d 857, 2019 N.D. LEXIS 268 (N.D. 2019); Ourada v. State, 2019 ND 10, 921 N.W.2d 677, 2019 N.D. LEXIS 26 (N.D. 2019).

Supreme court declined to exercise its supervisory jurisdiction to direct a new judge be assigned to the case and a scheduling order be entered because a shareholder contended the assigned judge’s actions raised an appearance of bias, and the supreme court rejected a similar request in the prior appeal. 2020 ND 46; 2020 N.D. LEXIS 4 (February 27, 2020).

Case was appropriate for the supreme court to exercise supervisory jurisdiction because the issue was whether a shareholder was entitled to a jury trial on remand after the supreme court reversed the district court’s summary judgment dismissing all of his claims for damages. 2020 ND 46; 2020 N.D. LEXIS 4 (February 27, 2020).

Supervisory writ was denied where the owner had failed to exercise his right to remove the action from small claims court, and nothing suggested that this was an extraordinary case warranting supervisory jurisdiction to prevent injustice. Winter v. Solheim, 2015 ND 210, 868 N.W.2d 842, 2015 N.D. LEXIS 232 (N.D. 2015).

Employer was entitled to supervisory writs directing a district court to grant the employer summary judgment barring civil liability for deceased and injured workers’ injuries because Workforce and Safety Insurance’s unappealed decision that the workers were employees was res judicata. Plains Trucking, LLC v. Hagar, 2019 ND 226, 932 N.W.2d 541, 2019 N.D. LEXIS 227 (N.D. 2019).

Because the State of North Dakota lacked the ability to realistically appeal the district court’s orders denying a motion to amend the charge against defendant or the order denying a plea agreement, the Supreme Court of North Dakota concluded that the matter was an appropriate circumstance to consider exercising the court’s supervisory jurisdiction and considered the issues raised by the State on the merits. State v. Louser, 2021 ND 89, 959 N.W.2d 883, 2021 N.D. LEXIS 92 (N.D. 2021).

Power to Issue Writs.

Power of supreme court to issue original and remedial writs is discretionary and cannot be invoked as a matter of right, and extends only to those cases in which the question presented is publici juris ; alleged infringement by legislature upon authority granted to governor by state constitution, extent of governor’s power to partially veto a bill, and constitutionality of legislature’s action affecting lieutenant governor’s office, all were issues of public concern and thus constituted a proper case for exercise of original jurisdiction. State ex rel. Link v. Olson, 286 N.W.2d 262, 1979 N.D. LEXIS 319 (N.D. 1979).

Supreme Court of North Dakota lacked jurisdiction to consider the State’s appeal of the district court’s orders limiting the admission of video evidence and denying the State’s motion to amend the criminal information because the State had no statutory right to appeal the issues where the State made no argument that the case raised issues of vital concern regarding matters of important public interest or why the case was extraordinary, nothing required the court to amend an information, and a possible error by the court did not require supervision. State v. Powley, 2019 ND 51, 923 N.W.2d 123, 2019 N.D. LEXIS 37 (N.D. 2019).

Because a candidate for insurance commissioner was not a resident until after November 2016, she would not have been a North Dakota resident for five years on November 3, 2020. Thus, pursuant to N.D.C.C. §§ 27-02-04 and 32-06-02(1), an elector was entitled to a writ of injunction restraining the Secretary of State from placing the candidate’s name on the general election ballot. Berg v. Jaeger, 2020 ND 178, 948 N.W.2d 4, 2020 N.D. LEXIS 181 (N.D. 2020).

Stay Pending Appeal.

Supreme court had inherent power to order stay of district court order pending appeal. In Interest (Custody) of O., 250 N.W.2d 256, 1977 N.D. LEXIS 224 (N.D. 1977).

Supervisory Jurisdiction.

Although an appeal was not authorized because all of the claims involved were not decided and none of the parties requested certification, the Supreme Court of North Dakota exercised its supervisory jurisdiction to review the judgment because the case presented a significant issue regarding the interpretation and application of a statute, which was an issue of vital concern regarding matters of important public interest and of which there was little guidance in the case law. Wilkinson v. Bd. of Univ. & Sch. Lands of N.D., 2020 ND 179, 947 N.W.2d 910, 2020 N.D. LEXIS 188 (N.D. 2020).

Supreme court declined to exercise its supervisory jurisdiction and direct the district court to vacate a reinstatement order because issues of vital concern regarding matters of important public interest are not present in the case; a corporation’s motion to intervene was primarily based upon an alleged defense to a foreign limited liability company’s counterclaim in the separate action. Manning v. Jaeger, 2021 ND 162, 2021 N.D. LEXIS 161 (N.D. 2021).

Law Reviews.

Forum Communs. Co. v. Paulson, 2008 ND 140, 752 N.W.2d 177, 2008 N.D. LEXIS 141 (N.D. 2008), see 85 N. Dak. L. Rev. 503 (2009).

North Dakota Supreme Court Review (State v. Lee), see 86 N.D. L. Rev. 437 (2010).

27-02-05. General powers of supreme court.

The supreme court is vested with full power and authority necessary to carry into complete execution all its judgments, decrees, and determinations in the matters over which it has jurisdiction and for the exercise of its jurisdiction as the supreme judicial tribunal of this state.

Source:

S.L. 1891, ch. 118, § 3; R.C. 1895, § 5168; R.C. 1899, § 5168; R.C. 1905, § 6754; C.L. 1913, § 7342; R.C. 1943, § 27-0205.

Notes to Decisions

Authority to Dismiss.

Rules of supreme court, together with its previous decisions and the statutes, authorize it to dismiss an appeal for failure to comply with supreme court rules. Aune v. Mandan, 166 N.W.2d 559, 1969 N.D. LEXIS 112 (N.D. 1969).

27-02-05.1. Administration by supreme court.

The supreme court shall have and exercise administrative supervision over all courts of this state and the judges, justices, or magistrates of such courts under such rules and procedures as it shall from time to time prescribe. The supreme court shall provide to the extent it deems necessary or desirable, rules for:

  1. Administrative supervision by the supreme court of all courts.
  2. Administrative practice and procedure in all courts, including:
    1. The required filing by all courts of all reports deemed necessary by the supreme court; and
    2. The establishment of uniform standards and procedures for the effective management of court records.
  3. Personnel policies, procedures, qualifications, duties, and compensation for court personnel.
  4. Uniform financial accounting procedures to be followed by all judicial officers and employees designated to receive and transmit fees, fines, costs, and other moneys. The court may not establish any accounting procedures which conflict with those established by the state auditor for county agencies.
  5. The transfer of any matter to any proper court when the jurisdiction of any court has been improvidently invoked.
  6. Withdrawal of any case or other matter pending before any judge and to reassign the proceeding or case to another judge, when, in the opinion of the supreme court, the withdrawal and reassignment should be made in order to expedite and promote justice.

All judges, clerks of court, and other officers or employees of the courts and of offices related to and serving the courts shall comply with all administrative practice and procedure rules promulgated by the supreme court.

Source:

S.L. 1971, ch. 296, § 1; 1981, ch. 316, § 1; 1985, ch. 337, § 5; 1989, ch. 382, § 1.

Cross-References.

As to the powers, duties, and qualifications of the state court administrator, see Administrative Rule 1, North Dakota Court Rules Annotated.

As to provisions pertaining to the duties of presiding judges, see Administrative Rule 2, North Dakota Court Rules Annotated.

For provisions relating to the temporary assignments of judges, see Administrative Rule 15, North Dakota Court Rules Annotated.

For provisions pertaining to the North Dakota Council of Presiding Judges, see Administrative Rule 22, North Dakota Court Rules Annotated.

For provisions relating to the court records management program, see Administrative Rule 26, North Dakota Court Rules Annotated.

Notes to Decisions

Change of Judge Who Denied Jury Trial.

Supreme court would grant change of judge when the judge had denied a demand for jury trial and so would be presiding at the trial on the merits. United Hosp. v. Hagen, 285 N.W.2d 586, 1979 N.D. LEXIS 316 (N.D. 1979).

Fundamental Interests of Parties.

Although Supreme Court could not consider matter as an appeal because there was no N.D.R.Civ.P., Rule 54(b) certification, the issues in case about trial court’s authority to grant interim relief affected fundamental interests of litigants. Therefore, Court considered appeal as request to exercise supervisory jurisdiction and, exercising its discretion, considered issues in case on their merits. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).

Improvident Exercise of Jurisdiction.

While this section authorizes the Supreme Court to transfer any matter to any proper court when the jurisdiction of any court has been improvidently invoked, it does not say that such power is within the exclusive authority of the Supreme Court. The Supreme Court may allow such a transfer invoked by another court, if it is deemed proper. Hayden v. North Dakota Workers Compensation Bureau, 447 N.W.2d 489, 1989 N.D. LEXIS 191 (N.D. 1989).

Scope of Power Conferred.

Statute empowers supreme court to designate a district judge to have jurisdiction in connection with administrative receivership of insolvent bank. First Am. Bank & Trust Co. v. George, 239 N.W.2d 284, 1976 N.D. LEXIS 187 (N.D. 1976).

27-02-05.2. State juvenile services coordinator — Powers and duties — Selection and salary — Administrative support. [Repealed]

Repealed by S.L. 2005, ch. 276, § 1.

27-02-06. Terms. [Repealed]

Repealed by S.L. 1981, ch. 316, § 2.

27-02-07. Rules relating to the unauthorized practice of the law may be made by supreme court.

The supreme court of this state may make all necessary rules for the restraint of persons unlawfully engaging in the practice of the law in this state.

Source:

S.L. 1941, ch. 238, § 2; R.C. 1943, § 27-0207; S.L. 1983, ch. 346, § 1.

Cross-References.

Admission to practice, see § 27-11-01 et seq. and Admission to Practice Rules, North Dakota Court Rules Annotated

Rule-making power of supreme court, see N.D. Const., Art. VI, § 3.

Notes to Decisions

Original and Exclusive Jurisdiction.

In addition to its inherent jurisdiction in all matters involving admission of persons to practice law in state and disciplining of such persons, supreme court, under this section, possessed original and exclusive jurisdiction of such matters. Application for Christianson, 175 N.W.2d 8, 1970 N.D. LEXIS 97 (N.D. 1970).

27-02-08. Rules of pleading, practice, and procedure may be made by supreme court.

The supreme court of this state may make all rules of pleading, practice, and procedure which it may deem necessary for:

  1. The administration of justice in all civil and criminal actions, remedies, and proceedings in any and all courts of this state; and
  2. The method of taking, hearing, and deciding appeals to the courts from all decisions of public officers, boards, commissions, departments, and institutions exercising quasi-judicial functions, in any case in which an appeal from any such decision is allowed by law.

Source:

S.L. 1919, ch. 167, § 6; 1925 Supp., § 769a6; S.L. 1941, ch. 238, § 1; R.C. 1943, § 27-0208.

Cross-References.

Rules regarding briefs, see § 28-27-33.1.

Notes to Decisions

Failure to Comply with Rules.

Rules of supreme court, together with its previous decisions and the statutes, authorize it to dismiss an appeal for failure to comply with supreme court rules. Aune v. Mandan, 166 N.W.2d 559, 1969 N.D. LEXIS 112 (N.D. 1969).

Law Reviews.

Courts of Limited Jurisdiction in North Dakota, 31 N.D. L. Rev. 6, 17 (1955).

27-02-09. Statutes regulating procedure effective as rules of supreme court.

All statutes relating to pleadings, practice, and procedure in civil or criminal actions, remedies, or proceedings, enacted by the legislative assembly, have force and effect only as rules of court and remain in effect unless and until amended or otherwise altered by rules promulgated by the supreme court.

Source:

S.L. 1941, ch. 238, § 3; R.C. 1943, § 27-0209.

Notes to Decisions

Demands for Change of Judge.

Statutory arrangement for permitting a litigant to obtain change of judge, in N.D.C.C. § 29-15-21, does not conflict with any rules promulgated by the supreme court and is not unconstitutional as a violation of the separation of powers doctrine. Traynor v. Leclerc, 1997 ND 47, 561 N.W.2d 644, 1997 N.D. LEXIS 56 (N.D. 1997).

Promulgation of Rules.

North Dakota Constitution in N.D. Const. art. VI, § 3 gave the state supreme court the ultimate authority to promulgate rules and, thus, those rules took precedence over the legislature’s statutes in matters of procedure, as recognized by N.D.C.C. § 27-02-09. As a result, the rules of criminal procedure applied rather than statutory criminal rules in determining whether the county’s charging information sufficiently apprised defendant that defendant had violated an animal control ordinance and allowed for a determination that the information was sufficient. State v. Brown, 2009 ND 150, 771 N.W.2d 267, 2009 N.D. LEXIS 159 (N.D. 2009).

27-02-10. Limitation on rulemaking powers of supreme court.

No rule promulgated under sections 27-02-07 and 27-02-08 may abridge, enlarge, or modify in any manner the substantive rights of any litigant.

Source:

S.L. 1941, ch. 238, § 4; R.C. 1943, § 27-0210.

27-02-11. Notice of intention to promulgate rule — Requirement — Method of giving — Hearing interested parties. [Repealed]

Repealed by S.L. 1981, ch. 317, § 1.

27-02-12. Proposal of new rules and amendments to rules of practice by attorneys. [Repealed]

Repealed by S.L. 1981, ch. 317, § 1.

27-02-13. Means of putting into effect rules or amendments to rules adopted by supreme court. [Repealed]

Repealed by S.L. 1981, ch. 317, § 1.

27-02-14. Effective date of rules promulgated by supreme court. [Repealed]

Repealed by S.L. 1981, ch. 317, § 1.

27-02-15. Duties of clerks of district courts with reference to rules — Rules open to inspection. [Repealed]

Repealed by S.L. 1981, ch. 317, § 1.

27-02-16. Issuance and return of writs by supreme court.

The supreme court, subject to such regulations and conditions as it may prescribe, always must be open for the issuance and return of all writs and process which it may lawfully issue and for the hearing and determination of the same. Any judge of said court may order the issuance of any such writ or process and prescribe the time and manner of service and the time and place of return of the same. In cases of habeas corpus, the judge of the supreme court who issues or causes the writ to issue may direct that the writ must be made returnable and must be heard and determined, either before the supreme court or any judge thereof, or before any district court of this state, or any judge of any district court of this state. Any district court or any judge thereof before whom any writ is made returnable as prescribed in this section is authorized to carry into complete execution all of its judgments, decrees, and determinations, subject to appeal as provided by law.

Source:

S.L. 1891, ch. 118, § 2; R.C. 1895, § 5166; R.C. 1899, § 5166; R.C. 1905, § 6752; C.L. 1913, § 7340; R.C. 1943, § 27-0216.

Notes to Decisions

Mandamus.

Where district judges were called in, to sit in the place of those who deemed themselves disqualified, an order for an alternative writ of mandamus, which was signed by two of such judges, was legally issued under this section. State ex rel. Langer v. Kositzky, 38 N.D. 616, 166 N.W. 534, 1918 N.D. LEXIS 4 (N.D. 1918).

27-02-17. Issues of fact in original proceedings in supreme court may be sent to district court for trial.

If an issue of fact is joined, or an assessment of damages by a jury is necessary, in any action or proceeding commenced in the supreme court, the court, in its discretion, may send the same to some district court, and it there must be determined in the same manner as other issues of fact are tried or other assessments are made, and a return thereof must be made as directed by the supreme court. In such cases, the supreme court may order a special verdict to be found and returned.

Source:

R.C. 1895, § 5167; R.C. 1899, § 5167; R.C. 1905, § 6753; C.L. 1913, § 7341; R.C. 1943, § 27-0217.

27-02-18. Calendar of the supreme court.

All cases pending in the supreme court, on appeal or otherwise, must be placed on the calendar of such court and are subject to call for argument and for final disposition in such manner and at such times as the supreme court, by rule or order, may prescribe.

Source:

S.L. 1913, ch. 277, § 2; C.L. 1913, § 716; S.L. 1919, ch. 212, § 2; 1925 Supp., § 716; R.C. 1943, § 27-0218.

Notes to Decisions

Control of Calendar.

The supreme court has the power to control its terms and its calendar. Swiggum v. Valley Inv. Co., 73 N.D. 422, 15 N.W.2d 862, 1944 N.D. LEXIS 78 (N.D. 1944).

27-02-19. Causes given preference on supreme court calendar.

On a second and each subsequent appeal to the supreme court, or when an appeal has once been dismissed for defect or irregularity, the cause must be placed upon the calendar as of the time of filing the first appeal. If an appeal is taken from any judgment or order for or against the state of North Dakota, any state officer, or any board of state officers, as sole plaintiff or defendant, such appeal must have a preference in the supreme court and upon motion of either party thereto may be moved out of the order on the calendar.

Source:

C. Civ. P. 1877, § 24; R.C. 1895, § 5172; R.C. 1899, § 5172; R.C. 1905, § 6758; C.L. 1913, § 7346; R.C. 1943, § 27-0219.

Derivation:

Wait’s (N.Y.) Code, 13.

Notes to Decisions

Arrangement of Calendar.

The arrangement of the calendar is within the control of the court except as is otherwise provided in the statute. Burger v. Sinclair, 24 N.D. 315, 140 N.W. 231, 1913 N.D. LEXIS 18 (N.D. 1913).

27-02-20. When causes on calendar stand over.

If, for any cause, there is no general term of the supreme court at the time fixed therefor by law, or if there is a continuance of the term of said court or a change in the time of holding any term by rule of court or otherwise, all causes then upon the calendar of said court, all writs, recognizances, appeals, and proceedings commenced, taken, or made returnable to said court at said term, must stand over to and be heard at the next general term with like effect as if no such failure, continuance, or change had occurred.

Source:

S.L. 1891, ch. 118, § 6; R.C. 1895, § 5171; R.C. 1899, § 5171; R.C. 1905, § 6757; C.L. 1913, § 7345; R.C. 1943, § 27-0220.

27-02-21. Adjournments.

If a majority of the judges of the supreme court do not attend on the first or on any other day of a term, the clerk of such court must enter such fact on record, and the judge or judges present shall adjourn the court to the next day and so on from day to day for six days, if a majority of the judges fail to appear. At the end of such period, said court must be adjourned and all matters pending therein must stand continued until the next regular or special term. If none of the judges appear at such time, the clerk of said court may adjourn the term from day to day as provided in this section.

Source:

S.L. 1891, ch. 118, § 5; R.C. 1895, § 5170; R.C. 1899, § 5170; R.C. 1905, § 6756; C.L. 1913, § 7344; R.C. 1943, § 27-0221.

27-02-22. Majority of judges must concur in judgment — Effect if concurrence of majority is lacking.

The concurrence of a majority of the judges of the supreme court is necessary to pronounce judgment. If a majority does not concur, the case must be reheard, but no more than two rehearings may be had. If on the second rehearing a majority of the judges does not concur, the judgment must be affirmed.

Source:

C. Civ. P. 1877, § 25; R.C. 1895, § 5173; R.C. 1899, § 5173; R.C. 1905, § 6759; C.L. 1913, § 7347; R.C. 1943, § 27-0222.

Derivation:

Wait’s (N.Y.) Code, 14, 19; Harston’s (Cal.) Practice, 47.

Cross-References.

Majority necessary to pronounce decision, four justices must concur to hold statute unconstitutional, see N.D. Const., Art. VI, § 4.

27-02-23. Decisions must be written — Filing — Requirement.

The supreme court, in any case decided by it, shall give its decision in writing, which must be filed with the clerk of said court with the other papers in the case. A decision in a case heard at a general or special term, and all orders affecting the same, may be filed in vacation, and judgment entered thereon in pursuance of the finding and order of the court with the same effect as upon a decision made and filed in that term.

Source:

S.L. 1891, ch. 118, § 4; R.C. 1895, § 5169; R.C. 1899, § 5169; R.C. 1905, § 6755; C.L. 1913, § 7343; R.C. 1943, § 27-0223; S.L. 1977, ch. 257, § 1.

Cross-References.

Affirmance by summary opinion, N.D.R.App.P., Rule 35.1.

Written decisions, see N.D. Const., Art. VI, § 5.

27-02-24. Regulations governing publication and distribution of official reports to be made by supreme court.

The supreme court, by rules and regulations, shall provide for the filing, printing, publication, and distribution of the official reports of the opinions of the court and for the making of a contract through the supreme court reporter with any person, corporation, or limited liability company for the printing, publishing, or distributing of such reports, not in excess of the biennial appropriation made for that purpose by the legislative assembly.

Source:

S.L. 1919, ch. 211, § 6; 1925 Supp., § 737a6; R.C. 1943, § 27-0224; S.L. 1993, ch. 54, § 106.

27-02-25. Supreme court may call special terms for district courts — Court may designate judge to preside. [Repealed]

Repealed by S.L. 1981, ch. 316, § 2.

27-02-26. Uniform traffic summons and complaint. [Repealed]

Repealed by S.L. 1959, ch. 249, § 2.

27-02-27. Judicial emergency.

  1. If the supreme court of this state declares a judicial emergency due to an emergency or natural disaster that substantially endangers or infringes upon the normal functioning of the judicial system, the ability of persons to avail themselves of the judicial system, or the ability of litigants or others to have access to the courts or to meet schedules or time deadlines imposed by law or court order, notice of the declaration must be provided as required by supreme court rule.
  2. An order declaring a judicial emergency may suspend, toll, extend, or otherwise grant relief from deadlines, time schedules, statutes of limitations, statutes of repose, or filing requirements imposed by law, whether in civil or criminal cases, administrative matters, or any other legal proceedings as determined by the supreme court. An order declaring a judicial emergency may not suspend, toll, extend, or otherwise grant relief from deadlines, time schedules, or filing requirements that are required by the United States Constitution or the Constitution of North Dakota.

Source:

S.L. 2013, ch. 239, § 1.

CHAPTER 27-02.1 Court of Appeals

27-02.1-01. Temporary court of appeals established — Jurisdiction — Writ authority — Administration. [Effective through January 1, 2024]

A temporary court of appeals is established to exercise appellate and original jurisdiction as delegated by the supreme court. Panels of the temporary court of appeals may issue original and remedial writs necessary to properly exercise jurisdiction in cases assigned to them. The panels of the temporary court of appeals are subject to administration by the supreme court pursuant to sections 3 and 8 of article VI of the Constitution of North Dakota.

Source:

S.L. 1987, ch. 374, § 1; 1989, ch. 379, § 1; 1993, ch. 24, § 6; 1995, ch. 294, § 1; 1999, ch. 277, § 1; 2003, ch. 264, § 1; 2007, ch. 272, § 1; 2011, ch. 226, § 1; 2015, ch. 226, § 1; 2019, ch. 2, § 5, effective July 1, 2019.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 226, S.L. 2015 became effective August 1, 2015.

Note.

The 2015 amendment by section 1 of chapter 226, S.L. 2015, to this section was to extend the expiration date from January 1, 2016 to January 1, 2020.

This chapter was initially effective July 1, 1987 through January 1, 1990, pursuant to S.L. 1987, chapter 374, § 15, and was extended through January 1, 1994, by section 1, chapter 379, S.L. 1989; through January 1, 1996, by section 6 of chapter 24, S.L. 1993; through January 1, 2000, by section 1 of chapter 294, S.L. 1995; through January 1, 2004, by section 1 of chapter 277, S.L. 1999; through January 1, 2008, by section 1 of chapter 264, S.L. 2003, through January 1, 2012, by section 1 of chapter 272, S.L. 2007, through January 1, 2016, by section 1 of chapter 226, S.L. 2011, and through January 1, 2024, by section 1 of chapter 226, 1076, S.L. 2015, and through January 1, 2020, by section 5 of chapter 2, S.L. 2019.

27-02.1-02. Number, assignment, and compensation of judges. [Effective through January 1, 2024]

  1. The supreme court may provide for the assignment of active or retired district court judges, retired justices of the supreme court, and lawyers, to serve on three-judge panels of the temporary court of appeals if the chief justice certifies to the governor that the supreme court has disposed of two hundred fifty cases in the twelve months preceding September first of any year. Assignments may be made for a time certain, not to exceed one year from the date of assignment, or specifically for one or more cases on the docket of the supreme court.
  2. An active or retired district court judge serving on the temporary court of appeals may not be assigned to hear cases in which the judge participated while serving on the district court. An active district court judge may not be assigned to hear cases that originated in the judicial district of the judge.
  3. An active district court judge serving on the temporary court of appeals is not entitled to additional compensation, but is entitled to reimbursement for expenses as provided by sections 44-08-04 and 54-06-09.
  4. Retired justices of the supreme court, retired district court judges, and lawyers serving as judges on panels of the temporary court of appeals are entitled to receive as compensation for each day of service in the performance of duties pursuant to the assignment an amount equal to five percent of the gross monthly salary as provided for a regularly elected or appointed justice of the supreme court, or one-half of the daily compensation for services of one-half day or less. The compensation must be paid upon certification by the judge that the services were performed for the number of days shown on the certificate and must be paid in the same manner as the salaries of the regularly elected or appointed judges are paid.

Source:

S.L. 1987, ch. 374, § 2; 1989, ch. 379, § 1; 1993, ch. 24, § 6; 1995, ch. 294, § 1; 1999, ch. 277, § 1; 2003, ch. 264, § 2; 2007, ch. 272, § 2; 2011, ch. 226, § 2; 2015, ch. 226, § 2; 2019, ch. 2, § 6, effective July 1, 2019.

Effective Date.

The 2015 amendment of this section by section 2 of chapter 226, S.L. 2015 became effective August 1, 2015.

Note.

The 2015 amendment by section 2 of chapter 226, S.L. 2015, to this section was to extend the expiration date from January 1, 2016 to January 1, 2020.

This chapter was initially effective July 1, 1987 through January 1, 1990, pursuant to S.L. 1987, chapter 374, § 15, and was extended through January 1, 1994, by section 1, chapter 379, S.L. 1989; through January 1, 1996, by section 6 of chapter 24, S.L. 1993; through January 1, 2000, by section 1 of chapter 294, S.L. 1995; through January 1, 2004, by section 1 of chapter 277, S.L. 1999; through January 1, 2008, by section 1 of chapter 264, S.L. 2003, through January 1, 2012, by section 1 of chapter 272, S.L. 2007, through January 1, 2016, by section 1 of chapter 226, S.L. 2011, and through January 1, 2024, by section 1 of chapter 226, 1076, S.L. 2015, and through January 1, 2020, by section 5 of chapter 2, S.L. 2019.

27-02.1-03. Assignment and reassignment of cases — Quorum for decision of cases — Authority in furtherance of jurisdiction. [Effective through January 1, 2024]

  1. Panels of the temporary court of appeals have jurisdiction to hear and to decide all cases assigned by the supreme court.
  2. The supreme court may order reassignment of any case from a panel of the temporary court of appeals to the supreme court.
  3. A majority of the three judges of a panel of the temporary court of appeals hearing a case is necessary to pronounce a decision.
  4. When a judgment or order is reversed, modified, or confirmed by a panel of the temporary court of appeals, the reasons must be concisely stated in writing, signed by the judges concurring, filed in the office of the clerk of the supreme court, and preserved with the record of the case. Any judge concurring or dissenting may give the reasons for the judge’s concurrence or dissent in writing over the judge’s signature.

Source:

S.L. 1987, ch. 374, § 3; 1989, ch. 379, § 1; 1993, ch. 24, § 6; 1995, ch. 294, § 1; 1999, ch. 277, § 1; 2003, ch. 264, § 3; 2007, ch. 272, § 3; 2011, ch. 226, § 3; 2015, ch. 226, § 3; 2019, ch. 2, § 7, effective July 1, 2019.

Effective Date.

The 2015 amendment of this section by section 3 of chapter 226, S.L. 2015 became effective August 1, 2015.

Note.

The 2015 amendment by section 3 of chapter 226, S.L. 2015, to this section was to extend the expiration date from January 1, 2016 to January 1, 2020.

This chapter was initially effective July 1, 1987 through January 1, 1990, pursuant to S.L. 1987, chapter 374, § 15, and was extended through January 1, 1994, by section 1, chapter 379, S.L. 1989; through January 1, 1996, by section 6 of chapter 24, S.L. 1993; through January 1, 2000, by section 1 of chapter 294, S.L. 1995; through January 1, 2004, by section 1 of chapter 277, S.L. 1999; through January 1, 2008, by section 1 of chapter 264, S.L. 2003, through January 1, 2012, by section 1 of chapter 272, S.L. 2007, through January 1, 2016, by section 1 of chapter 226, S.L. 2011, and through January 1, 2024, by section 1 of chapter 226, 1076, S.L. 2015, and through January 1, 2020, by section 5 of chapter 2, S.L. 2019.

27-02.1-04. Administration — Employees and clerical assistance — Court of record — Place of sessions. [Effective through January 1, 2024]

  1. The clerk of the supreme court shall provide clerk services to panels of the temporary court of appeals.
  2. Panels of the temporary court of appeals may hold court in any place the panel considers convenient and efficient for conducting its business.
  3. All proceedings of the panels of the temporary court of appeals must be pursuant to the rules adopted by the supreme court.

Source:

S.L. 1987, ch. 374, § 4; 1989, ch. 379, § 1; 1993, ch. 24, § 6; 1995, ch. 294, § 1; 1999, ch. 277, § 1; 2003, ch. 264, § 4; 2007, ch. 272, § 4; 2011, ch. 226, § 4; 2015, ch. 226, § 4; 2019, ch. 2, § 8, effective July 1, 2019.

Effective Date.

The 2015 amendment of this section by section 4 of chapter 226, S.L. 2015 became effective August 1, 2015.

Note.

The 2015 amendment by section 4 of chapter 226, S.L. 2015, to this section was to extend the expiration date from January 1, 2016 to January 1, 2020.

This chapter was initially effective July 1, 1987 through January 1, 1990, pursuant to S.L. 1987, chapter 374, § 15, and was extended through January 1, 1994, by section 1, chapter 379, S.L. 1989; through January 1, 1996, by section 6 of chapter 24, S.L. 1993; through January 1, 2000, by section 1 of chapter 294, S.L. 1995; through January 1, 2004, by section 1 of chapter 277, S.L. 1999; through January 1, 2008, by section 1 of chapter 264, S.L. 2003, through January 1, 2012, by section 1 of chapter 272, S.L. 2007, through January 1, 2016, by section 1 of chapter 226, S.L. 2011, and through January 1, 2024, by section 1 of chapter 226, 1076, S.L. 2015, and through January 1, 2020, by section 5 of chapter 2, S.L. 2019.

27-02.1-05. Chief judge. [Effective through January 1, 2024]

The chief justice of the supreme court shall designate a chief judge of each panel of the temporary court of appeals who shall preside pursuant to rules of the supreme court.

Source:

S.L. 1987, ch. 374, § 5; 1989, ch. 379, § 1; 1993, ch. 24, § 6; 1995, ch. 294, § 1; 1999, ch. 277, § 1; 2003, ch. 264, § 5; 2007, ch. 272, § 5; 2011, ch. 226, § 5; 2015, ch. 226, § 5; 2019, ch. 2, § 9, effective July 1, 2019.

Effective Date.

The 2015 amendment of this section by section 5 of chapter 226, S.L. 2015 became effective August 1, 2015.

Note.

The 2015 amendment by section 5 of chapter 226, S.L. 2015, to this section was to extend the expiration date from January 1, 2016 to January 1, 2020.

This chapter was initially effective July 1, 1987 through January 1, 1990, pursuant to S.L. 1987, chapter 374, § 15, and was extended through January 1, 1994, by section 1, chapter 379, S.L. 1989; through January 1, 1996, by section 6 of chapter 24, S.L. 1993; through January 1, 2000, by section 1 of chapter 294, S.L. 1995; through January 1, 2004, by section 1 of chapter 277, S.L. 1999; through January 1, 2008, by section 1 of chapter 264, S.L. 2003, through January 1, 2012, by section 1 of chapter 272, S.L. 2007, through January 1, 2016, by section 1 of chapter 226, S.L. 2011, and through January 1, 2024, by section 1 of chapter 226, 1076, S.L. 2015, and through January 1, 2020, by section 5 of chapter 2, S.L. 2019.

27-02.1-06. Review of decisions of panels. [Effective through January 1, 2024]

Any party in interest who is aggrieved by a judgment or order of a panel of the temporary court of appeals may petition the supreme court for review of the judgment or order pursuant to rules of the supreme court. Upon the filing of a petition for review by the supreme court, the order or judgment and mandate of the panel of the temporary court of appeals is stayed pending action of the supreme court. The supreme court has discretion to grant or deny the petition.

Source:

S.L. 1987, ch. 374, § 6; 1989, ch. 379, § 1; 1993, ch. 24, § 6; 1995, ch. 294, § 1; 1999, ch. 277, § 1; 2003, ch. 264, § 6; 2007, ch. 272, § 6; 2011, ch. 226, § 6; 2015, ch. 226, § 6; 2019, ch. 2, § 10, effective July 1, 2019.

Effective Date.

The 2015 amendment of this section by section 6 of chapter 226, S.L. 2015 became effective August 1, 2015.

Note.

The 2015 amendment by section 6 of chapter 226, S.L. 2015, to this section was to extend the expiration date from January 1, 2016 to January 1, 2020.

This chapter was initially effective July 1, 1987 through January 1, 1990, pursuant to S.L. 1987, chapter 374, § 15, and was extended through January 1, 1994, by section 1, chapter 379, S.L. 1989; through January 1, 1996, by section 6 of chapter 24, S.L. 1993; through January 1, 2000, by section 1 of chapter 294, S.L. 1995; through January 1, 2004, by section 1 of chapter 277, S.L. 1999; through January 1, 2008, by section 1 of chapter 264, S.L. 2003, through January 1, 2012, by section 1 of chapter 272, S.L. 2007, through January 1, 2016, by section 1 of chapter 226, S.L. 2011, and through January 1, 2024, by section 1 of chapter 226, 1076, S.L. 2015, and through January 1, 2020, by section 5 of chapter 2, S.L. 2019.

27-02.1-07. Right to appeal not created. [Effective through January 1, 2024]

This chapter does not provide or create a right of appeal if that right is not otherwise provided by law. An appeal assigned to a panel of the temporary court of appeals fulfills the right of appeal provided by section 28-27-02.

Source:

S.L. 1987, ch. 374, § 7; 1989, ch. 379, § 1; 1993, ch. 24, § 6; 1995, ch. 294, § 1; 1999, ch. 277, § 1; 2003, ch. 264, § 7; 2007, ch. 272, § 7; 2011, ch. 226, § 7; 2015, ch. 226, § 7; 2019, ch. 2, § 11, effective July 1, 2019.

Effective Date.

The 2015 amendment of this section by section 7 of chapter 226, S.L. 2015 became effective August 1, 2015.

Note.

The 2015 amendment by section 7 of chapter 226, S.L. 2015, to this section was to extend the expiration date from January 1, 2016 to January 1, 2020.

This chapter was initially effective July 1, 1987 through January 1, 1990, pursuant to S.L. 1987, chapter 374, § 15, and was extended through January 1, 1994, by section 1, chapter 379, S.L. 1989; through January 1, 1996, by section 6 of chapter 24, S.L. 1993; through January 1, 2000, by section 1 of chapter 294, S.L. 1995; through January 1, 2004, by section 1 of chapter 277, S.L. 1999; through January 1, 2008, by section 1 of chapter 264, S.L. 2003, through January 1, 2012, by section 1 of chapter 272, S.L. 2007, through January 1, 2016, by section 1 of chapter 226, S.L. 2011, and through January 1, 2024, by section 1 of chapter 226, 1076, S.L. 2015, and through January 1, 2020, by section 5 of chapter 2, S.L. 2019.

27-02.1-08. Unitary appeal — Filing of appeal — Filing fee. [Effective through January 1, 2024]

All appeals must be treated as one appeal process under the jurisdiction of the supreme court. In any appeal there may be only one filing and one filing fee required. The filing fee is as prescribed by section 27-03-05.

Source:

S.L. 1987, ch. 374, § 8; 1989, ch. 379, § 1; 1993, ch. 24, § 6; 1995, ch. 294, § 1; 1999, ch. 277, § 1; 2003, ch. 264, § 8; 2007, ch. 272, § 8; 2011, ch. 226, § 8; 2015, ch. 226, § 8; 2019, ch. 2, § 12, effective July 1, 2019.

Effective Date.

The 2015 amendment of this section by section 8 of chapter 226, S.L. 2015 became effective August 1, 2015.

Note.

The 2015 amendment by section 8 of chapter 226, S.L. 2015, to this section was to extend the expiration date from January 1, 2016 to January 1, 2020.

This chapter was initially effective July 1, 1987 through January 1, 1990, pursuant to S.L. 1987, chapter 374, § 15, and was extended through January 1, 1994, by section 1, chapter 379, S.L. 1989; through January 1, 1996, by section 6 of chapter 24, S.L. 1993; through January 1, 2000, by section 1 of chapter 294, S.L. 1995; through January 1, 2004, by section 1 of chapter 277, S.L. 1999; through January 1, 2008, by section 1 of chapter 264, S.L. 2003, through January 1, 2012, by section 1 of chapter 272, S.L. 2007, through January 1, 2016, by section 1 of chapter 226, S.L. 2011, and through January 1, 2024, by section 1 of chapter 226, 1076, S.L. 2015, and through January 1, 2020, by section 5 of chapter 2, S.L. 2019.

27-02.1-09. Publication of opinions. [Effective through January 1, 2024]

Opinions of the panels of the temporary court of appeals may be published pursuant to rules of the supreme court.

Source:

S.L. 1987, ch. 374, § 9; 1989, ch. 379, § 1; 1993, ch. 24, § 6; 1995, ch. 294, § 1; 1999, ch. 277, § 1; 2003, ch. 264, § 9; 2007, ch. 272, § 9; 2011, ch. 226, § 9; 2015, ch. 226, § 9; 2019, ch. 2, § 13, effective July 1, 2019.

Effective Date.

The 2015 amendment of this section by section 9 of chapter 226, S.L. 2015 became effective August 1, 2015.

Note.

The 2015 amendment by section 9 of chapter 226, S.L. 2015, to this section was to extend the expiration date from January 1, 2016 to January 1, 2020.

This chapter was initially effective July 1, 1987 through January 1, 1990, pursuant to S.L. 1987, chapter 374, § 15, and was extended through January 1, 1994, by section 1, chapter 379, S.L. 1989; through January 1, 1996, by section 6 of chapter 24, S.L. 1993; through January 1, 2000, by section 1 of chapter 294, S.L. 1995; through January 1, 2004, by section 1 of chapter 277, S.L. 1999; through January 1, 2008, by section 1 of chapter 264, S.L. 2003, through January 1, 2012, by section 2 of chapter 272, S.L. 2007, through January 1, 2016, by section 1 of chapter 226, S.L. 2011, through January 1, 2024, by section 1 of chapter 226, S.L. 2015, and through January 1, 2020, by section 5 of chapter 2, S.L. 2019.

CHAPTER 27-02.2 Attorney Recruitment Program

Source:

S.L. 2021, sb2233, § 1, effective August 1, 2021.

27-02.2-01. Attorney recruitment program — Participation — Assessment.

  1. The supreme court may establish a program to assist rural counties and municipalities in recruiting attorneys.
  2. A county or municipality interested in participating in the program shall apply to the supreme court. After determining eligibility, the supreme court shall conduct an assessment of the applicant to evaluate the applicant’s need for an attorney and the ability of the applicant to sustain and support an attorney.
  3. In making the selection of an eligible applicant, the supreme court shall consider the assessment and:
    1. The demographic of the county or municipality;
    2. The age and number of the members of the county or local bar association;
    3. The recommendation of the presiding district court judge;
    4. The economic development programs within the county or municipality;
    5. The geographical location of the county or municipality in comparison to other counties or municipalities participating in the program; and
    6. Any prior participation in the program by the county or municipality.
  4. The supreme court shall maintain a list of counties and municipalities that have been assessed and are selected for participation in the recruitment assistance program.
  5. The supreme court may revise the assessment of any county or municipality or conduct a new assessment as necessary to reflect a change in conditions.

Source:

S.L. 2021, ch. 244, § 1, effective July 1, 2021.

27-02.2-02. County eligibility.

A county is eligible to participate in the recruitment assistance program if the county:

  1. Has a population of sixteen thousand or fewer;
  2. Agrees to provide the county’s portion of the incentive payment as required under section 27-02.2-06; and
  3. Is determined to be eligible by the supreme court.

Source:

S.L. 2021, ch. 244, § 1, effective July 1, 2021.

27-02.2-03. Municipality eligibility.

A municipality is eligible to participate in the recruitment if the municipality:

  1. Has a population of five thousand or fewer;
  2. Agrees to provide the municipality’s portion of the incentive payment as required under section 27-02.2-06; and
  3. Is determined to be eligible by the supreme court.

Source:

S.L. 2021, ch. 244, § 1, effective July 1, 2021.

27-02.2-04. Attorney eligibility.

An attorney licensed to practice in the state who meets all requirements set by the supreme court may participate in the recruitment assistance program. An attorney participating in the program shall practice in a supreme court-selected county or municipality for at least five consecutive years. No more than four attorneys may participate in the program at any given time.

Source:

S.L. 2021, ch. 244, § 1, effective July 1, 2021.

27-02.2-05. Incentive payment to participating attorneys.

An attorney selected by the supreme court to participate in the recruitment assistance program is entitled to receive an incentive payment of forty-five thousand dollars to be paid in five equal annual installments.

Source:

S.L. 2021, ch. 244, § 1, effective July 1, 2021.

27-02.2-06. Agreement for payment of recruitment assistance — Repayment.

  1. An agreement for the payment of recruitment assistance under this chapter must require the county or municipality served by the attorney to provide thirty-five percent of the total amount of the incentive payment in five equal installments.
  2. The state bar association of North Dakota, the North Dakota bar foundation, or any other legal association in North Dakota shall pay fifteen percent of the annual installment to the supreme court.
  3. After the county or municipality certifies to the supreme court that the county or municipality has paid the attorney the annual amount and the state bar association of North Dakota, the North Dakota bar foundation, or any other legal association in North Dakota has paid its installment to the supreme court, the supreme court shall pay the attorney the remaining balance of the annual installment.
  4. Subject to appropriation by the legislative assembly, the supreme court shall pay the required amount of funds pursuant to this chapter and the funds received from the state bar association of North Dakota, the North Dakota bar foundation, or any other legal association in North Dakota, as required under this chapter, to an attorney participating in the program.
  5. If an attorney breaches the agreement, the attorney shall repay all funds received under this chapter and under the terms and conditions set by the supreme court. Failure to repay the funds is grounds for discipline by the supreme court.

Source:

S.L. 2021, ch. 244, § 1, effective July 1, 2021.

27-02.2-07. County and municipal funding.

A county or municipality may appropriate funds for the purpose of carrying out this chapter. A county or municipality may enter an agreement with any other county, municipality, school district, or nonprofit entity to assist the county or municipality in carrying out this chapter.

Source:

S.L. 2021, ch. 244, § 1, effective July 1, 2021.

27-02.2-08. Payments.

  1. Notwithstanding any other provision of law, the supreme court may receive fifteen percent of the total amount of an incentive payment in five equal annual installments from the state bar association of North Dakota, the North Dakota bar foundation, or any other legal association in North Dakota as required under this chapter.
  2. A county or municipality may prepay its portion of the incentive program to the supreme court at any time during the five-year period.

Source:

S.L. 2021, ch. 244, § 1, effective July 1, 2021.

27-02.2-09. Attorney recruitment assistance program fund — Continuing appropriation.

The attorney recruitment assistance program fund is established in the state treasury. Payments collected under section 27-02.2-08 must be deposited in the attorney recruitment assistance program fund. The funds deposited in the attorney recruitment assistance program fund are appropriated to the judicial branch on a continuing basis for the purpose of making attorney payments under the recruitment assistance program.

Source:

S.L. 2021, ch. 244, § 1, effective July 1, 2021.

27-02.2-10. Filing and approval of recruitment assistance agreement.

A recruitment assistance agreement entered under this chapter becomes effective when the agreement is filed with and approved by the supreme court. The agreement must require the attorney to practice law full-time in the eligible county or municipality for at least five consecutive years.

Source:

S.L. 2021, ch. 244, § 1, effective July 1, 2021.

27-02.2-11. Ineligibility for participation in other program.

If an individual has previously participated in an attorney recruitment program under this chapter, or any other state or federal scholarship, loan repayment, or tuition reimbursement program requiring the individual to provide attorney services within an underserved area, the individual may not participate in another attorney recruitment program under this chapter.

Source:

S.L. 2021, ch. 244, § 1, effective July 1, 2021.

27-02.2-12. Rulemaking authority.

The supreme court may adopt rules as necessary to implement this chapter.

Source:

S.L. 2021, ch. 244, § 1, effective July 1, 2021.

27-02.2-13. Annual report.

Before July first of each year, the supreme court shall submit a report on the status of the program to the legislative management.

Source:

S.L. 2021, ch. 244, § 1, effective July 1, 2021.

CHAPTER 27-03 Clerk of Supreme Court

27-03-01. Appointment of clerk of supreme court.

The supreme court shall appoint a clerk of the supreme court to perform duties assigned by the court. The court shall establish the clerk’s salary within the amount appropriated for salaries by the legislative assembly.

Source:

S.L. 1890, ch. 170, § 1; R.C. 1895, § 380; R.C. 1899, § 380; R.C. 1905, § 446; C.L. 1913, § 722; R.C. 1943, § 27-0301; S.L. 1989, ch. 382, § 2.

Cross-References.

Constitutional provision providing for appointment of a court administrator, see N.D. Const., Art. VI, § 3.

For provisions pertaining to the powers and duties of the clerk of the supreme court, see Administrative Rule 5, North Dakota Court Rules Annotated.

Collateral References.

Liability of clerk of court or his bond, for defaults and misfeasances of his assistants or deputies, 71 A.L.R.2d 1140.

27-03-02. Clerk of supreme court — Oath — Deputy.

The clerk of the supreme court, before entering upon the clerk’s duties, shall qualify by taking the oath prescribed for civil officers. The clerk may appoint a deputy who shall take and subscribe the oath prescribed for civil officers and file the same in the supreme court. The clerk is responsible for the acts of the deputy.

Source:

S.L. 1890, ch. 170, § 2; R.C. 1895, § 381; R.C. 1899, § 381; R.C. 1905, § 447; C.L. 1913, § 723; R.C. 1943, § 27-0302; S.L. 1999, ch. 113, § 9.

Cross-References.

Bond of public officers, see §§ 44-01-07 to 44-01-14 and chapter 26.1-21.

Oath and bond of clerk, practice of law prohibited, duties of clerk, see N.D.R.App.P., Rule 45.

Oath of civil officers, see § 44-01-05.

Where bond is to be filed, see § 54-09-02.

27-03-03. Salary of clerk of supreme court.

The salary of the clerk of the supreme court must be within the amount appropriated for salaries by the legislative assembly.

Source:

S.L. 1890, ch. 170, § 6; R.C. 1895, § 385; R.C. 1899, § 385; R.C. 1905, § 451; S.L. 1909, ch. 73, § 1; C.L. 1913, § 727; S.L. 1919, ch. 210, § 1; 1925 Supp., § 727; S.L. 1933, ch. 196, § 1; R.C. 1943, § 27-0303; S.L. 1945, ch. 264, § 12; 1947, ch. 233, § 1; 1949, ch. 314, § 13; 1957 Supp., § 27-0303; S.L. 1981, ch. 535, § 8.

27-03-04. Mileage and expenses allowed clerk.

In addition to the salary provided for in section 27-03-03, the clerk of the supreme court shall receive for the clerk’s expenses in attending sessions of the supreme court, when held at points other than at the seat of government, the mileage and traveling expenses allowed by law to state officers.

Source:

S.L. 1890, ch. 170, § 9; R.C. 1895, § 388; R.C. 1899, § 388; R.C. 1905, § 454; C.L. 1913, § 730; R.C. 1943, § 27-0304.

27-03-05. Fees to be charged and collected by clerk of supreme court.

The clerk of the supreme court shall charge and collect in advance a fee of one hundred twenty-five dollars upon the filing in the supreme court of the record in any cause upon appeal or upon the filing in the court of a petition in any cause seeking the exercise of the original court’s jurisdiction. In addition to the fee required by this section, the clerk of the supreme court shall charge and collect any electronic filing processing fee established by court rule for any matter filed in an electronic format.

Source:

S.L. 1890, ch. 170, § 7; R.C. 1895, § 386; R.C. 1899, § 386; R.C. 1905, § 452; C.L. 1913, § 728; S.L. 1923, ch. 194, § 1; 1925 Supp., § 728; R.C. 1943, § 27-0305; S.L. 1947, ch. 228, § 1; 1957 Supp., § 27-0305; S.L. 1971, ch. 297, § 3; 1973, ch. 93, § 2; 1995, ch. 2, § 10; 2003, ch. 265, § 1; 2007, ch. 273, § 1.

Cross-References.

May require fees to be paid in advance, see § 44-08-09.

DECISIONS UNDER PRIOR LAW

Constitutionality.

This section, as amended and reenacted in S.L. 1947, was a valid enactment, and it was incumbent upon the clerk to charge and collect the prescribed fee. Tooz v. State, 76 N.D. 599, 38 N.W.2d 285, 1949 N.D. LEXIS 81 (N.D. 1949).

The provisions of this section relating to filing fees did not violate section 20 of the constitution of 1889 prohibiting special privileges. Menz v. Coyle, 117 N.W.2d 290, 1962 N.D. LEXIS 91 (N.D. 1962).

27-03-06. Fees to be deposited monthly with state treasurer.

The clerk of the supreme court shall keep an accurate account of all fees received by the clerk of the supreme court and shall deposit such fees monthly with the state treasurer.

Source:

S.L. 1890, ch. 170, § 8; R.C. 1895, § 387; R.C. 1899, § 387; R.C. 1905, § 453; C.L. 1913, § 729; I. M. Nov. 8, 1932, § 6; S.L. 1933, p. 505; S.L. 1933, ch. 196, § 2; R.C. 1943, § 27-0306; S.L. 1947, ch. 228, § 2; 1957 Supp., § 27-0306; S.L. 1971, ch. 297, § 4.

DECISIONS UNDER PRIOR LAW

Constitutionality.

This section, as amended and reenacted in S.L. 1947, was a valid enactment. Tooz v. State, 76 N.D. 599, 38 N.W.2d 285, 1949 N.D. LEXIS 81 (N.D. 1949).

Payment of a portion of the filing fees collected, which portion was eventually remitted to the state bar association, did not violate section 185 of the constitution of 1889. Menz v. Coyle, 117 N.W.2d 290, 1962 N.D. LEXIS 91 (N.D. 1962).

27-03-07. Clerk personally to perform all duties — When deputy can act.

The clerk of the supreme court personally shall perform all the duties assigned to the clerk by law and by the rules of the supreme court. When the clerk is absent unavoidably or for any cause is unable to perform the clerk’s duties, the clerk’s deputy may perform the same.

Source:

S.L. 1890, ch. 170, § 4; R.C. 1895, § 383; R.C. 1899, § 383; R.C. 1905, § 449; C.L. 1913, § 725; R.C. 1943, § 27-0307.

Cross-References.

Duties of clerk, see N.D.R.App.P., Rule 45.

Member of state canvassing board, see § 16.1-15-33.

27-03-08. Clerk of supreme court to procure necessary records, supplies, and furniture.

The clerk of the supreme court shall procure the necessary records, seal, stationery, postage, and furniture for the use of the supreme court, and the expenses thereof must be paid out of the moneys appropriated to the supreme court for that purpose.

Source:

S.L. 1890, ch. 170, § 3; R.C. 1895, § 382; R.C. 1899, § 382; R.C. 1905, § 448; C.L. 1913, § 724; R.C. 1943, § 27-0308.

27-03-09. Clerk to furnish copy of syllabus of each decision to daily newspaper. [Repealed]

Repealed by S.L. 1977, ch. 257, § 2.

27-03-10. Clerk to furnish copies of opinions, abstracts, and briefs to supreme court reporter. [Repealed]

Repealed by S.L. 1975, ch. 267, § 1.

CHAPTER 27-04 Other Officials of Supreme Court

27-04-01. Supreme court reporter — Appointment, qualifications, term, titles. [Repealed]

Source:

S.L. 1879, ch. 56, § 2; N.D. Const., § 93; R.C. 1895, § 389; R.C. 1899, § 389; R.C. 1905, § 455; C.L. 1913, § 731; S.L. 1919, ch. 211, § 1; 1925 Supp., § 737a1; R.C. 1943, § 27-0401; repealed by 2019, ch. 251, § 1, effective August 1, 2019.

27-04-02. Bond of supreme court reporter. [Repealed]

Repealed by S.L. 1999, ch. 113, § 24.

27-04-03. Salary of supreme court reporter. [Repealed]

Source:

S.L. 1890, ch. 171, § 5; R.C. 1895, § 395; S.L. 1897, ch. 138, § 1; 1899, ch. 154, § 1; R.C. 1899, § 395; R.C. 1905, § 461; C.L. 1913, § 737; S.L. 1919, ch. 211, § 8; 1923, ch. 195, § 1; 1925 Supp., § 737a8; R.C. 1943, § 27-0403; S.L. 1981, ch. 535, § 9; repealed by 2019, ch. 251, § 1, effective August 1, 2019.

27-04-04. Location of office of supreme court reporter. [Repealed]

Source:

S.L. 1919, ch. 211, § 8; 1923, ch. 195, § 1; 1925 Supp., § 737a8; R.C. 1943, § 27-0404; repealed by 2019, ch. 251, § 1, effective August 1, 2019.

27-04-05. Opinions and reports of supreme court printed and published by reporter. [Repealed]

Repealed by S.L. 1969, ch. 277, § 2.

27-04-06. Reporter’s duties as to state law library. [Repealed]

Source:

R.C. 1895, § 1034; R.C. 1899, § 1034; R.C. 1905, § 1295; S.L. 1911, ch. 284, § 1; C.L. 1913, § 1843; S.L. 1919, ch. 211, § 4; 1925 Supp., § 737a4; R.C. 1943, § 27-0406; repealed by 2019, ch. 251, § 1, effective August 1, 2019.

27-04-07. Reporter’s duties as legislative reference librarian. [Repealed]

Source:

S.L. 1919, ch. 211, § 5; 1925 Supp., § 737a5; R.C. 1943, § 27-0407; repealed by 2019, ch. 251, § 1, effective August 1, 2019.

27-04-08. Sale and disposal of books and other library materials by supreme court reporter. [Repealed]

Source:

S.L. 1919, ch. 211, § 7; 1925 Supp., § 737a7; S.L. 1931, ch. 126, § 1; R.C. 1943, § 27-0408; S.L. 1969, ch. 277, § 1; repealed by 2019, ch. 251, § 1, effective August 1, 2019.

27-04-08.1. Secretary of state to purchase certain property and publication rights. [Repealed]

Repealed by omission from this code.

27-04-09. Court security.

The state highway patrol and other law enforcement agencies, at the request of the chief justice, shall provide security services to the supreme court when the court considers those services to be necessary.

Source:

S.L. 1890, ch. 90, § 1; R.C. 1895, §§ 396, 397; R.C. 1899, §§ 396, 397; R.C. 1905, §§ 462, 463; C.L. 1913, §§ 738, 739; R.C. 1943, § 27-0409; S.L. 1983, ch. 347, § 1.

27-04-10. Sheriff acting as marshal liable on official bond. [Repealed]

Repealed by S.L. 1983, ch. 347, § 2.

27-04-11. Appointment and duties of bailiff of supreme court — Compensation of bailiff.

The judges of the supreme court may designate the supreme court reporter, or any other person, to act as bailiff of such court and may prescribe the duties of such bailiff. The supreme court reporter, if designated to act as bailiff, shall receive no additional compensation therefor, but any other person so designated may be allowed by such court such compensation for that person’s services as may be reasonable.

Source:

S.L. 1911, ch. 286, §§ 1, 2; C.L. 1913, §§ 741, 742; R.C. 1943, § 27-0411.

CHAPTER 27-05 District Courts

27-05-00.1. County courts abolished — Election of additional district court judges — Case file transition — Budget and property considerations.

  1. Following the completion on January 1, 1995, of the terms of the judges of all county courts, the county court and office of judge of the county court in each county are abolished.
  2. District court judgeships are established on January 2, 1995, in number equal to the number of county judges serving the county courts on January 1, 1991, or the number of county judges serving the county courts on January 1, 1994, whichever is the lesser number. The district court judgeships established pursuant to this subsection must be filled by election at the general election in 1994. All statutes relating to the district court apply to the district court judgeships established pursuant to this subsection, except as otherwise provided by this section.
  3. The supreme court shall designate by rule, prior to January 1, 1994, the judicial district for each additional district court judgeship established pursuant to subsection 2. The judicial district designated by the supreme court for each district court judgeship established pursuant to subsection 2 is the area of election for that office at the general election in 1994. The supreme court shall designate, prior to January 1, 1994, staggered terms for each district court judgeship established pursuant to subsection 2 in a manner that results in approximately one-third of those offices with initial terms of two years, one-third with initial terms of four years, and one-third with initial terms of six years. Any judge elected pursuant to subsection 2 shall take office on January 2, 1995, and shall hold office until completion of the designated initial term or until a successor is elected and has qualified. Subsequent to these initial terms, a judge elected to a judgeship established by subsection 2 shall hold office for the term provided in section 27-05-02.
  4. All case files, untried cases, or any other unfinished business of each county court abolished pursuant to subsection 1 must be considered case files, untried cases, and other unfinished business of the district court of the judicial district in which that county is located.
  5. Beginning in 1992, the budget for the district courts submitted to the legislative assembly pursuant to section 27-01-01.1 and to the director of the budget for informational purposes pursuant to section 54-44.1-13 must include all salaries and expenses for the district court judgeships established pursuant to subsection 2. Any equipment, furnishings, and law libraries in the control and custody of the county courts on January 1, 1991, and any property acquired by county courts from that date until January 1, 1995, must be transferred on January 2, 1995, to the custody and control of the district court of the county in which each county court is located until the state court administrator determines that these items are no longer needed by the district court. Upon that determination, custody and control of the property must revert to the county.

Source:

S.L. 1991, ch. 326, § 1.

Note.

Chapter 326, S.L. 1991, which enacted this section, in section 206 provides:

LEGISLATIVE INTENT. The legislative assembly recognizes that this Act to implement article VI, section 1, of the Constitution of North Dakota, while it makes no present statutory change in the current distribution of court revenue, will result in the transfer of responsibility for certain court expenditures beginning January 2, 1995, from the counties to the state, including judicial compensation expenditures associated with the transition from county court judgeships to district court judgeships. The counties will remain responsible for all county court services until January 1, 1995, and thereafter will remain responsible for all other substantial court expenditures, including costs associated with the provision of courthouse facilities and the office and staff of clerk of district court in each county.

The legislative assembly also recognizes that the present allocation of court revenue will change substantially, without the need for statutory revision, due to anticipated changes in judicial practices associated with the imposition of fines and assessment of court costs, thereby subjecting counties to diminished court revenues and the state to increased fine revenues to the common schools trust fund. Although it is difficult to assess the precise fiscal impact of the transition from county court judgeships to district court judgeships, the legislative assembly recognizes that the required reduction in the present number of judges under this Act will result in a substantial cost savings to all taxpayers of North Dakota through the judicial reductions that will occur, regardless of whether the court expenditures are borne by the counties or the state.

Therefore, it is the intent of the legislative assembly that the interim legislative council committee assigned to review and monitor the implementation of this Act pursuant to Senate Concurrent Resolution No. 4043, as approved by the fifty-second legislative assembly, in conjunction with the office of the state court administrator, perform a detailed analysis of the fiscal implications of this Act prior to the convening of the fifty-third legislative assembly and the fifty-fourth legislative assembly. It is the intent of the legislative assembly that the transition to a single trial court of general jurisdiction include revision of the distribution of court revenues and legislative appropriations from the state general fund to provide a fair and equitable allocation of expenditures between the counties and the state.”

27-05-01. Judicial districts — Number of judges.

The judicial districts in this state and the number of judges in each of the judicial districts are as designated by rule of the supreme court.

Source:

S.L. 1895, ch. 103, § 1; R.C. 1895, § 402; R.C. 1899, § 402; S.L. 1903, ch. 116, § 1; R.C. 1905, § 468; S.L. 1907, ch. 159, § 1; 1911, ch. 169, § 1; C.L. 1913, § 746; S.L. 1919, ch. 167, § 1, R.M. 1919, p. 509; 1925 Supp., § 769a1; R.C. 1943, § 27-0501; S.L. 1955, ch. 195, § 1; 1957 Supp., § 27-0501; S.L. 1967, ch. 247, § 1; 1983, ch. 82, § 54; 1987, ch. 2, § 3; 1991, ch. 326, § 83; 2009, ch. 261, § 2.

Note.

Section 4 of chapter 261, S.L. 2009, as amended by section 1 of chapter 240, S.L. 2013, provides: “ DISTRICT JUDGES. The appropriation provided in section 1 of this Act provides for two additional district court judges to be assigned pursuant to section 10 of article VI of the Constitution of North Dakota in the northwest and southeast judicial districts, and to be assigned to chambers by the supreme court. Within thirty days after January 1, 2010, the judgeship vacancies created by this section shall be filled in accordance with section 13 of article VI of the Constitution of North Dakota. In accordance with sections 9 and 13 of article VI of the Constitution of North Dakota, each judge appointed to fill a vacancy created by this section continues in the office until the next general election following appointment and if elected holds office for the remainder of the term and until a successor is elected and duly qualified.”

Cross-References.

Clerk of district court, see N.D.C.C. § 27-05.2-02.

Constitutional division of state into judicial districts, see N.D. Const., Art. VI, § 9.

Division into judicial districts by order of supreme court, see N.D. Const., Art. VI, § 9.

Division of counties, judicial subdivision of what district, see § 11-03-24.

For provisions pertaining to judicial redistricting, see Administrative Rule 6, North Dakota Court Rules Annotated.

As to North Dakota docket currency standards for district courts and county courts, see Administrative Rule 12, North Dakota Court Rules Annotated.

Notes to Decisions

Change of Judicial Districts.

A judgment in an action entered on an order of the judge of a judicial district, after the county was detached from one judicial district and placed in another district, was voidable. Bruegger v. Cartier, 20 N.D. 72, 126 N.W. 491, 1910 N.D. LEXIS 64 (N.D. 1910).

Death of Judge.

Notwithstanding the reduction in the number of judges required by subsection (2) of this section, in view of recent determination that judicial position was necessary for effective judicial administration, it was not necessary to hold another hearing or meeting to determine whether the vacancy created by the death of a judge should be filled. In re Vacancy in the Office of County Judge, 519 N.W.2d 28, 1994 N.D. LEXIS 195 (N.D. 1994).

Law Reviews.

Judicial Planning in North Dakota: Systematized Anticipation for Balanced Progress, 54 N.D. L. Rev. 47 (1977).

27-05-02. Election and term of office of district judges.

There must be elected in each judicial district of this state the number of judges for such district provided for by law. Any judge so elected shall hold office for six years or until that judge’s successor is elected and has qualified.

Source:

N.D. Const., § 104; S.L. 1895, ch. 103, § 1; R.C. 1895, § 402; R.C. 1899, § 402; S.L. 1903, ch. 116, § 2; R.C. 1905, § 468; S.L. 1907, ch. 159, § 1; 1911, ch. 169, § 1; C.L. 1913, § 746; S.L. 1919, ch. 167, § 3, R.M. 1919, p. 509; 1925 Supp., § 769a3; Const. Amd. Art. 45, June 25, 1930, S.L. 1931, p. 578; R.C. 1943, § 27-0502; S.L. 1985, ch. 496, § 1.

Cross-References.

Election of district judges, see N.D. Const., Art. VI, § 9.

Prohibition against district court judge acting as attorney, see N.D. Const., Art. VI, § 10.

Prohibition against district judge holding offices other than judicial offices, see N.D. Const., Art. VI, § 10.

Qualifications of judges, see N.D. Const., Art. VI, § 10.

Removal from office, see ch. 44-09.

Term of office, see N.D. Const., Art. VI, § 9.

Notes to Decisions

Death of Judge-Elect.

The death of a judge-elect before he has qualified creates no vacancy that warrants an appointment of a successor to the incumbent judge who holds his office until his successor is elected and qualified. State ex rel. Foughty v. Friederich, 108 N.W.2d 681, 1961 N.D. LEXIS 70 (N.D. 1961).

Collateral References.

Pardons as restoring public office or license or eligibility therefor, 58 A.L.R.3d 1191.

Law Reviews.

Political Realities and Democratic Ideals: Accession and Competition in a State Judicial System, 54 N.D. L. Rev. 187 (1977).

27-05-02.1. Vacancy in office of district judge — Transfer of judgeships — Hearing.

  1. Notwithstanding section 44-02-03, when a vacancy occurs in the office of district court judge, the supreme court shall determine, within ninety days of receiving notice of the vacancy from the governor and in consultation with the judges and attorneys in the affected judicial district, whether that office is necessary for effective judicial administration or whether the district judgeship may be transferred to another location to fulfill a need for judicial services. The supreme court may, consistent with that determination, order that:
    1. The vacancy be filled in the manner provided pursuant to chapter 27-25;
    2. The vacant office be transferred to a judicial district in which an additional judge is necessary for effective judicial administration, and that the vacancy be filled in the manner provided pursuant to chapter 27-25 with respect to that judicial district; or
    3. The vacant office be abolished with or without transfer of a district judgeship as provided in subsection 3.
  2. For purposes of subsection 1, a vacancy is also only deemed to have occurred in the office of district judge if the judge in the affected office declares the intention not to seek re-election or if a judge fails to timely file a petition for candidacy with the secretary of state pursuant to section 16.1-11-06. The secretary of state shall immediately notify the supreme court if a judge fails to timely file a petition. The supreme court may establish by rule procedures for providing notice of the intention not to seek re-election. The supreme court, within ninety days of receiving notice of a judge’s intention not to seek re-election or within twenty-one days of receiving notice that a judge has failed to timely file a petition for candidacy, shall determine whether the office is necessary for effective judicial administration. The supreme court shall consult with the judges and attorneys of the affected judicial district in making the determination. The supreme court, consistent with that determination, may order any disposition available under subsection 1. The supreme court shall notify the secretary of state of its determination.
  3. The supreme court may transfer a district judgeship to any location in which a judge is necessary for effective judicial administration.
  4. The supreme court shall notify the governor of its determinations made pursuant to this section.

Source:

S.L. 1991, ch. 326, § 86; 1993, ch. 316, § 1; 1993, ch. 317, § 1; 2009, ch. 261, § 3; 2013, ch. 33, § 7.

Notes to Decisions

Electronic Notification.

The supreme court satisfied the requirements of N.D. Sup. Ct. Admin. R. 7.2 by posting notice of a written consultation with the attorneys and judges of the affected district on its website, electronically providing notice to all presiding judges of the state, and permitting written comments. In re Judicial Vacancy in Dist. Judgeship No. 4, 2003 ND 190, 672 N.W.2d 464, 2003 N.D. LEXIS 218 (N.D. 2003).

Judicial Notice.

Upon the retirement of a district court judge, the court may take judicial notice of the information contained in an earlier, recent case involving the retirement of a judge in the same district, using the notice and comment period afforded the lawyers and judges of the district in the earlier case to determine whether the office is necessary for effective judicial administration in its present location. In re Judicial Vacancy in Dist. Judgeship No. 3, 2004 ND 19, 673 N.W.2d 928, 2004 N.D. LEXIS 21 (N.D. 2004).

Retention of Judgeship Warranted.

Fact that population and commercial enterprises, and therefore the judicial needs of the district with the judicial vacancy, are expected to increase warrants retention of the judgeship. In re Judicial Vacancy in Dist. Judgeship No. 5, 1998 ND 98, 577 N.W.2d 328, 1998 N.D. LEXIS 134 (N.D. 1998).

Retention of judgeship was warranted based on the population per judge ratio in the district. In re Judicial Vacancy in Dist. Judgeship No. 9, 1999 ND 69, 592 N.W.2d 556, 1999 N.D. LEXIS 114 (N.D. 1999).

Where the differences in population trends and a weighted case load study did not demonstrate that a transfer of a judgeship was necessary, the supreme court ordered an election to fill a vacant judge’s position. In re Judicial Vacancy in Dist. Judgeship No. 1, 2003 ND 189, 672 N.W.2d 463, 2003 N.D. LEXIS 220 (N.D. 2003).

Under the criteria of N.D. Sup. Ct. Admin. R. 7.2, § 4, the North Dakota Supreme Court considered all submissions received by the court and its own records on statewide weighted caseload data and determined that the office of a district judge who was resigning was necessary in its present location for purposes of N.D.C.C. § 27-05-02.1. In re Judicial Vacancy, 2005 ND 195, 705 N.W.2d 862, 2005 N.D. LEXIS 239 (N.D. 2005).

Court determined that the office of the retiring Judge of the District Court, with chambers in Bismarck, South Central Judicial District, North Dakota, was necessary for effective judicial administration as required by N.D.C.C. § 27-05-02.1 and ordered that the office be filled in its present location. In re Judicial Vacancy in District Judgeship No. 1, 2006 ND 4, 708 N.W.2d 858, 2006 N.D. LEXIS 5 (N.D. 2006).

After conducting its review of a judicial vacancy, the Supreme Court of North Dakota determined that the judgeship was necessary for effective judicial administration in the Southeast Judicial District where the vacancy did not appear to be the most appropriate vacancy in the district to transfer. A review of the factors in N.D. Sup. Ct. Admin. R. 7.1, § 4 did not compel a transfer. In re Judicial Vacancy, 2006 ND 88, 713 N.W.2d 95, 2006 N.D. LEXIS 92 (N.D. 2006).

Pursuant to N.D.C.C. § 27-05-02.1, a vacancy in a district court judgeship office was ordered to be filled and an election for the office was ordered to be held, where the office was necessary for effective judicial administration. In re Judicial Vacancy in Dist. Judgeship No. 1, 2008 ND 15, 744 N.W.2d 723, 2008 N.D. LEXIS 15 (N.D. 2008).

Where case-load studies showed a district was one of the districts that had experienced a shortage of judicial full-time equivalents, a judgeship was necessary for effective judicial administration under N.D.C.C. § 27-05-02.1 and the vacancy was ordered filled following the death of a judge. In re Judicial Vacancy in Dist. Judgeship No. 4, 2010 ND 145, 810 N.W.2d 760, 2010 N.D. LEXIS 147 (N.D. 2010).

In a case where there were 2 judge vacancies in the Northeast Central Judicial District, it was found under this section that the offices were both necessary for effective judicial administration; the area of Grand Forts, North Dakota, was experiencing economic prosperity, and there were unavoidable factors that impacted future judicial resources. In re Vacancy in Judgeship No. 1, 2014 ND 184, 855 N.W.2d 29, 2014 N.D. LEXIS 188 (N.D. 2014).

Judgeship with chambers in Bottineau, Northeast Judicial District, was necessary for effective judicial administration where although the weighted case load study showed a 0.65 overage of judicial officers, there was no petition to move the judgeship, and newly authorized judgeships would relieve judicial shortages in other districts. In re Vacancy in Judgeship No. 3, 2015 ND 221, 869 N.W.2d 126, 2015 N.D. LEXIS 231 (N.D. 2015).

District judge was necessary for effective judicial administration in a judicial district because judge's retirement created a vacancy, comments regarding filling the vacancy were received, and a report containing population and caseload trends and other criteria was received, and the weighted caseload study, based on the 2015 case filings and the availability of six judicial officers, (five district judges and one judicial referee), showed a shortage of 0.074 in judicial officer need in the judicial district. In re Vacancy in Judgeship No. 5, 2016 ND 166, 883 N.W.2d 850, 2016 N.D. LEXIS 166 (N.D. 2016).

Transfer.

The supreme court concluded that a weighted caseload model final report supported its prior decision to transfer a vacant judgeship from the Northwest Judicial District to the East Central Judicial District. In re Judicial Vacancy in Dist. Judgeship No. 7, 2003 ND 49, 659 N.W.2d 863, 2003 N.D. LEXIS 43 (N.D. 2003).

North Dakota Supreme Court ordered that a vacant judicial office be transferred from Stanley, North Dakota, to Minot, North Dakota, effective January 1, 2007, a location in which a judge was necessary for effective judicial administration under N.D.C.C. § 27-05-02.1(5). In re Dist. Judgeship No. 7, 2005 ND 221, 707 N.W.2d 251, 2005 N.D. LEXIS 268 (N.D. 2005).

Decisions under Prior Law

Criteria Used in Abolishing Judgeship.

A legislatively ordered decision to abolish Judgeship No. 5 with chambers in Bowman, Southwest Judicial District, was based on population projections and the demand for judicial services in the affected districts. In re Consultations Under N.D.C.C. Section 27-05-02.1, 1999 ND 226, 603 N.W.2d 57, 1999 N.D. LEXIS 241 (N.D. 1999).

Requirement of adequate judicial services must be the primary consideration of the Supreme Court of North Dakota’s exercise of its authority to designate the location of judgeships. In re Judicial Vacancy, 2006 ND 88, 713 N.W.2d 95, 2006 N.D. LEXIS 92 (N.D. 2006).

27-05-03. Salaries and expenses of district judges.

The annual salary of each district judge is one hundred fifty-two thousand one hundred seventy-five dollars through June 30, 2022, and one hundred fifty-five thousand two hundred nineteen dollars thereafter. Each district judge is entitled to travel expenses, including mileage and subsistence while engaged in the discharge of official duties outside the city in which the judge’s chambers are located. The salary and expenses are payable monthly in the manner provided by law. A presiding judge of a judicial district is entitled to receive an additional four thousand three hundred twenty-four dollars per annum through June 30, 2022, and four thousand four hundred ten dollars thereafter.

Source:

S.L. 1893, ch. 92, § 1; R.C. 1895, § 413; R.C. 1899, § 413; R.C. 1905, § 480; S.L. 1907, ch. 77, § 2; C.L. 1913, § 772; S.L. 1919, ch. 167, § 9; R.M. 1919, p. 509; 1925 Supp., § 769a9; I.M. Nov. 8, 1932, § 1, S.L. 1933, p. 503; S.L. 1943, ch. 203, § 1; R.C. 1943, § 27-0503; S.L. 1947, ch. 232, § 1; 1951, ch. 196, § 2; 1953, ch. 200, § 2; 1957 Supp., § 27-0503; S.L. 1959, ch. 248, § 2; 1967, ch. 246, § 2; 1975, ch. 266, § 2; 1977, ch. 255, § 2; 1979, ch. 358, § 2; 1981, ch. 315, § 2; 1983, ch. 345, § 4; 1985, ch. 26, § 4; 1989, ch. 31, § 5; 1991, ch. 2, § 5; 1991, ch. 53, § 7; 1995, ch. 2, § 11; 1997, ch. 31, § 11; 1999, ch. 2, § 8; 2001, ch. 27, § 9; 2005, ch. 15, § 15; 2005, ch. 30, § 7; 2007, ch. 2, § 7; 2009, ch. 30, § 5; 2011, ch. 2, § 5; 2013, ch. 33, § 8; 2015, ch. 2, § 7, effective July 1, 2015; 2019, ch. 2, § 14, effective July 1, 2019; 2021, ch. 30, § 11, effective July 1, 2021.

Effective Date.

The 2015 amendment of this section by section 7 of chapter 2, S.L. 2015 became effective July 1, 2015.

Cross-References.

Compensation not to be diminished during a judge’s term of office, see N.D. Const., Art. VI, § 9.

Fees not part of compensation, see N.D. Const., Art. VI, § 10.

27-05-03.1. Retirement for mental or physical disability of supreme court judges and district court judges.

Whenever a judge of the supreme court or a judge of the district court of this state who is not a member of the public employees retirement system becomes unable, because of mental or physical disability, to perform the judicial duties of the office during the remainder of the term for which that judge has been elected or appointed and makes a written application to the chief justice or acting chief justice of the supreme court for retirement, setting forth the nature and extent of such disability, the supreme court judges and the district court judges shall make such investigation as they deem advisable. If two-thirds of the supreme court judges and the district court judges thereby determine that disability exists and that the performance of that judge’s judicial duties is thereby substantially impaired and that the impairment will not likely be remedied, the chief justice or acting chief justice, by written order to be filed in the office of the secretary of state, shall thereupon direct the retirement of the judge. The order must specify the effective date of the retirement and thereby create a vacancy in the office which must be filled by appointment as provided by law. A copy of the order must be transmitted to the office of management and budget. If the disability renders the judge unable to make or direct the making of the application, it may be made by a legally appointed guardian of the judge.

Source:

S.L. 1945, ch. 217, § 1; 1949, ch. 207, § 1; R.C. 1943, 1957 Supp., § 27-05031; S.L. 1973, ch. 239, § 1; 1983, ch. 576, § 1.

Cross-References.

Legislative assembly to provide for retirement of judges, see N.D. Const., Art. VI, §§ 12, 12.1.

Retirement for disability on recommendation of commission on judicial qualifications, see § 27-23-03.

27-05-03.2. Judicial retirement salary payable to judge retired for mental or physical disability.

If a judge of the supreme court or a judge of the district court retires under the provisions of section 27-05-03.1, the judge shall receive the compensation allotted to the judge’s office for the remainder of the judge’s term and thereafter judicial retirement salary as provided for in subsection 3 of section 27-17-01, regardless of the judge’s age or years of service at that time. The provisions of this section are applicable to those judges who retire pursuant to section 27-05-03.1 after January 1, 1973.

Source:

S.L. 1945, ch. 217, § 2; 1949, ch. 207, § 2; R.C. 1943, 1957 Supp., § 27-05032; S.L. 1973, ch. 239, § 2; 1975, ch. 268, § 1.

Cross-References.

Retirement, age and term of service, see chapter 27-17.

27-05-04. Expenses of district judges sitting with supreme court or in other districts — Allowance — Payment.

If a district judge is called to sit with the supreme court or is acting in any district court outside of the district judge’s judicial district, that judge, when so called or so acting, is entitled to receive the actual and necessary expenses incurred by that judge as a result thereof.

Source:

S.L. 1911, ch. 176, § 1; C.L. 1913, § 773; S.L. 1917, ch. 112, § 1; 1919, ch. 1, § 5; 1921, ch. 129, § 5; 1923, ch. 331, § 5; 1925 Supp., §§ 773, 7644a4; R.C. 1943, § 27-0504.

Cross-References.

Calling of district judge to sit with supreme court, see N.D. Const., Art. VI, § 11.

27-05-05. Presiding judge of district — How determined — Term of office.

The district and county judges in judicial districts of this state having more than one district judge shall elect from among the district judges a presiding judge who shall serve for a period of three years beginning January 1, 1992. A presiding judge in districts having more than one district judge must be elected every three years. In the event of a vacancy, a presiding judge must be elected in the manner provided in this section to serve the remainder of the term.

Source:

S.L. 1919, ch. 167, § 5, R.M. 1919, p. 509; 1925 Supp., § 769a5; R.C. 1943, § 27-0505; S.L. 1975, ch. 269, § 1; 1991, ch. 327, § 1.

Cross-References.

Designation of presiding judges and chief presiding judge, see Administrative Order 2, North Dakota Court Rules Annotated.

Rules relating to duties of presiding judges, see Administrative Rule 2, North Dakota Court Rules Annotated.

North Dakota council of presiding judges, see Administrative Rule 22, North Dakota Court Rules Annotated.

27-05-06. Jurisdiction of district courts.

The district courts of this state have the general jurisdiction conferred upon the courts by the constitution, and in the exercise of that jurisdiction the courts have power to issue all writs, process, and commissions provided therein or by law or which may be necessary for the due execution of the powers with which the courts are vested. The courts have:

  1. Common-law jurisdiction and authority within their respective judicial districts for the redress of all wrongs committed against the laws of this state affecting persons or property.
  2. Power to hear and determine all civil actions and proceedings.
  3. All the powers, according to the usages of courts of law and equity, necessary to the full and complete jurisdiction of the causes and parties and the full and complete administration of justice, and to carrying into effect the courts’ judgments, orders, and other determinations, subject to a re-examination by the supreme court as provided by law.
  4. Jurisdiction of appeals from all final judgments of municipal judges and from the determinations of inferior officers, boards, or tribunals, in the cases and pursuant to the regulations as may be prescribed by law.
  5. Disputed property line proceedings pursuant to section 11-20-14.1.
  6. Power to hear and determine all actions and proceedings arising from the enforcement of county home rule charter ordinances.

Source:

R.C. 1895, §§ 5175, 7753, 7756; R.C. 1899, §§ 5175, 7753, 7756; R.C. 1905, §§ 6761, 9561, 9564; C.L. 1913, §§ 7349, 10397, 10400; R.C. 1943, § 27-0506; S.L. 1977, ch. 212, § 2; 1981, ch. 320, § 51; 1991, ch. 326, § 84; 1993, ch. 24, § 5; 2003, ch. 87, § 3.

Cross-References.

Constitutional jurisdiction of district courts, see N.D. Const., Art. VI, § 8.

Jurisdiction to enter declaratory judgments, see § 32-23-01.

Labor disputes, restriction on granting preventive relief, see § 34-08-03.

Notes to Decisions

Common-Law Jurisdiction.

A district court has jurisdiction to try and punish offenses which are infamous or indictable at the common law. People v. Sponsler, 46 N.W. 459, 1 Dakota 289, 1876 Dakota LEXIS 5 (Dakota 1876).

The district court has common-law jurisdiction and authority for the redress of all wrongs committed against the laws of the state. State v. Russell, 18 N.D. 357, 121 N.W. 918, 1909 N.D. LEXIS 39 (N.D. 1909), distinguished, State ex rel. Stricker v. Andrews, 62 N.D. 215, 242 N.W. 912 (1932).

Complaint Caption Alteration.

Where a defendant was properly served with a summons and complaint stating that an action was commenced in district court, the defendant’s alteration of the caption in the summons and complaint and subsequent filing of the documents in county court did not divest the district court of the jurisdiction it obtained over the action when the documents were validly served on the defendant. United Accounts v. Teladvantage, 499 N.W.2d 115, 1993 N.D. LEXIS 76 (N.D. 1993).

Concurrent Jurisdiction.

In a case of fraud, courts of law and equity generally have concurrent jurisdiction. FEDERAL LAND BANK OF ST. PAUL v. KOSLOFSKY, 67 N.D. 322, 271 N.W. 907, 1937 N.D. LEXIS 85 (N.D. 1937); Dakota Nat'l Bank v. Smith, 72 N.D. 108, 5 N.W.2d 70, 1942 N.D. LEXIS 118 (N.D. 1942).

Enforcement of Disciplinary Orders.

While a disciplinary order is in effect, judges of the district court can be authorized or delegated to take appropriate action to enforce discipline and to protect the public. Disciplinary Bd. v. Larson (In re Larson), 512 N.W.2d 454, 1994 N.D. LEXIS 49 (N.D. 1994).

Enjoining Lien Filed Ancillary to Federal Action.

District court had subject matter jurisdiction to enjoin inmate from filing liens not authorized by law against the property of state employees named as defendants in a pending 1983 civil rights action filed in federal court. State ex rel. Employees of State Penitentiary, Director of Insts. v. Jensen, 331 N.W.2d 42, 1983 N.D. LEXIS 246 (N.D. 1983).

Equitable Jurisdiction.

A district court has jurisdiction over trusts, guardianships and conservatorships. Mangnall v. Adams (In re Mangnall), 1997 ND 19, 559 N.W.2d 221, 1997 N.D. LEXIS 12 (N.D. 1997).

General Appearance.

Where a county justice certified an action involving title to real estate to the district court and plaintiff made a general appearance there, he thereby came within the personal jurisdiction of that court and was not entitled to object to the justice’s action in certifying the case. Olson v. Brodell, 128 N.W.2d 169, 1964 N.D. LEXIS 101 (N.D. 1964).

Injunction Denied.

In a case where injunctive relief was sought after the closing of a housing facility, there was no likelihood of success on the merits because argument that the decision was not rational addressed the wisdom and propriety of the legislative decision, and it was not shown why an appeal to the district court was not an adequate legal remedy to resolve this claim. Black Gold OilField Servs., LLC v. City of Williston, 2016 ND 30, 875 N.W.2d 515, 2016 N.D. LEXIS 35 (N.D. 2016).

Jurisdiction Proper.

District court did not err in denying defendant’s motion to dismiss, because under N.D.C.C. § 29-03-05, Burleigh County had authority to prosecute alleged offenses that the parties admitted occurred on the Burleigh County side of the center of the main channel of the Missouri River, or within five hundred yards of the boundary. State v. Wetzel, 2008 ND 186, 756 N.W.2d 775, 2008 N.D. LEXIS 182 (N.D. 2008).

Supreme Court of North Dakota held that post-conviction relief under N.D.C.C. ch. 29-32.1 was not available in municipal courts in North Dakota, because municipal courts are courts of limited jurisdiction under N.D.C.C. § 40-18-01(1); whereas, the district courts have general jurisdiction under N.D.C.C. § 27-05-06. Jurisdiction to adjudicate applications for post-conviction relief was designed to be vested in courts of general jurisdiction. Holbach v. City of Minot, 2012 ND 117, 817 N.W.2d 340, 2012 N.D. LEXIS 109 (N.D. 2012).

Where defendant, an enrolled member of the Turtle Mountain Indian Reservation, appealed his conviction for guiding or outfitting without a license, in violation of N.D.C.C. § 20.1-03-40, the district court had jurisdiction since he was charged with guiding or outfitting without a license on land that was outside the reservation. State v. Delorme, 2013 ND 123, 834 N.W.2d 300, 2013 N.D. LEXIS 127 (N.D. 2013).

Pipeline company seeking a court order for examinations and surveys was required to show only that it was entitled to seek eminent domain, which it was, and did not have to show public benefit; moreover, the district court had subject-matter jurisdiction to issue the order. Alliance Pipeline L.P. v. Smith, 2013 ND 117, 833 N.W.2d 464, 2013 N.D. LEXIS 131 (N.D. 2013).

District court had subject matter and personal jurisdiction to determine cities' rights and obligations under a contract to build and operate a waste water treatment facility and consider partition of the facility because (1) the court was a court of general jurisdiction, and (2) proper service of process under N.D. R. Civ. P. 4 gave the court personal jurisdiction over the parties. City of Harwood v. City of Reiles Acres, 2015 ND 33, 859 N.W.2d 13, 2015 N.D. LEXIS 21 (N.D. 2015).

District court had jurisdiction pursuant to N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06 where the fee land had been divested from tribal control and the brothers had treated the property as non-Indian property throughout the relevant period. Fredericks v. Fredericks, 2016 ND 234, 888 N.W.2d 177, 2016 N.D. LEXIS 235 (N.D. 2016).

Pursuant to N.D. Const. art. VI, § 8, and N.D.C.C. §§ 27-05-06 and 47-32-01, a district court had subject matter jurisdiction over an eviction action where even though the tenant had vacated the mobile home that occupied a mobile home lot, the landlord sought to recover possession of real property in the county and to recover unpaid rents and costs under the lease for the lot. Spirit Prop. Mgmt. v. Vondell, 2017 ND 158, 897 N.W.2d 334, 2017 N.D. LEXIS 157 (N.D. 2017).

District court erred in denying a mother's motion to terminate the paternal grandmother's visitation with her minor child and to amend the child's birth certificate because the termination of the father's parental rights was a material change in circumstances and the grandmother did not establish a statutory basis for visitation where she had never met the child or had contact with her, and was no longer the child's legal grandparent, the mother was opposed to the grandmother having a relationship with the child, and the district court had subject matter jurisdiction to order the department of vital statistics to amend the child's birth certificate if it was in accordance with the governing statutes and regulations adopted thereunder. Kulbacki v. Michael, 2017 ND 184, 899 N.W.2d 643, 2017 N.D. LEXIS 184 (N.D. 2017).

Mortgage Foreclosure.

District courts have exclusive jurisdiction of actions for the foreclosure of real estate mortgages. First Nat'l Bank v. Paulson, 69 N.D. 512, 288 N.W. 465, 1939 N.D. LEXIS 180 (N.D. 1939).

Person over Eighteen Years of Age.

Under the juvenile law of this state a person over eighteen years of age is an adult and subject to the general jurisdiction of the district court. State v. Jackman, 93 N.W.2d 425, 1958 N.D. LEXIS 102 (N.D. 1958).

Protective Order.

Party may not collaterally challenge the validity of a protection order without first raising the matter with the trial court that issued it; therefore, where defendant failed to appear at hearings to challenge the issuance of an order, and there was no showing that the issuing court lacked jurisdiction, since it had jurisdiction over the matter pursuant to N.D. Const. art. VI, § 8, N.D.C.C. § 27-05-06 and N.D.C.C. ch. 14-07.1, this issue was meritless on appeal. State v. Zahn, 2007 ND 2, 725 N.W.2d 894, 2007 N.D. LEXIS 6 (N.D. 2007).

Removal to Federal Court.

If the application for removal to federal court is not made at the proper time, the right of removal is lost and the filing of a petition does not divest the state court of jurisdiction. State ex rel. Mears v. Barnes, 5 N.D. 350, 65 N.W. 688, 1895 N.D. LEXIS 38 (N.D. 1895).

Scope of Authority.

While the district court may have the authority to invoke its equitable power, the exercise of that authority may be inappropriate. Braaten for Heirs of Boomgaarden v. Deere & Co., 1997 ND 202, 569 N.W.2d 563, 1997 N.D. LEXIS 247 (N.D. 1997).

Tribal Claims.

Matter was remanded because the district court did not determine whether an accident occurred on land held in trust for the a tribe, and it also did not determine whether the parties to the action were enrolled members of the tribe; without such findings, the supreme court was unable to adequately consider whether the district court had subject matter jurisdiction to adjudicate a driver’s claims. Lavallie v. Jay, 2020 ND 147, 945 N.W.2d 288, 2020 N.D. LEXIS 150 (N.D. 2020).

Want of Jurisdiction.

Where the defendant, without benefit of counsel and without knowledge that the court had no jurisdiction to try him, entered a plea of guilty, defendant’s motion to vacate and set aside a judgment of conviction and to order a new trial and to permit a change of plea should be granted. State v. Tennyson, 73 N.D. 262, 14 N.W.2d 168, 1944 N.D. LEXIS 59 (N.D. 1944).

The district court, upon appeal from an order of the county court, has only the same jurisdiction as the county court and, therefore, when the district court determines that the county court exceeded its jurisdiction in issuing the order appealed from, it may not review and correct such order in its appellate capacity. The only ways in which the district court might acquire jurisdiction over such matter are (1) through the bringing of an independent action for that purpose, or (2) through agreement by the party litigants to invoke the original jurisdiction of the district court in the matter. In re Edinger’s Estate, 136 N.W.2d 114 (N.D. 1965), decided prior to the enactment of N.D.C.C. §§ 27-07.1-17, 30.1-02-02, and 30.1-02-06.1.

Collateral References.

Family court jurisdiction to hear contract claims, 46 A.L.R.5th 735.

Law Reviews.

Survey of the Trial Courts of the North Dakota Judicial System, 26 Bar Briefs, State Bar Ass’n of N.D. 345 (1950).

Mediation and Other Creative Alternatives to Litigating Family Law Issues, 61 N.D. L. Rev. 263 (1985).

North Dakota Supreme Court Review (State v. Lee), see 86 N.D. L. Rev. 437 (2010).

27-05-07. Purposes for which district courts always open — When and where issues of fact triable. [Repealed]

Superseded by N.D.R.Civ.P., Rule 77.

27-05-08. Chambers — Residence.

  1. The locations of the chambers of the district judges in each of the respective districts shall be as determined by rule of the supreme court.
  2. Each district judge shall reside within the district where the judge’s chambers are located, and, for the purposes of this section, the chief justice of the supreme court shall designate the respective chambers within the district to which each district judge is assigned.

Source:

S.L. 1919, ch. 167, § 2, R.M. 1919, p. 509; 1925, ch. 122, § 1; 1925 Supp., § 769a2; S.L. 1929, ch. 111, § 1; District Court Rules of Practice, Art. II, § 1; R.C. 1943, § 27-0508; S.L. 1969, ch. 278, § 1; 1983, ch. 82, § 55; 1991, ch. 326, § 85; 1993, ch. 318, § 1; 2015, ch. 227, § 1, effective August 1, 2015.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 227, S.L. 2015 became effective August 1, 2015.

Cross-References.

Constitutional provisions pertaining to the holding of district court terms, see N.D. Const., Art. VI, § 9.

Designation of judgeships and chambers with assignments, see Administrative Rule 7, North Dakota Court Rules Annotated.

Notes to Decisions

Change of Judge.

A judge designated by the supreme court to try a case, on the filing of an affidavit of prejudice against the presiding judge, is not disqualified merely because he had been designated presiding judge at the previous term. State v. Grams, 65 N.D. 400, 259 N.W. 86, 1935 N.D. LEXIS 121 (N.D. 1935).

Decisions Under Prior Law

Chamber Established.

New judgeship was chambered in Watford City, North Dakota based on several criteria; there were a shortage of judicial resources, the cities had county courthouses and jails, and the population was going to increase. Although several entities favored placing the new judgeship in Williston, North Dakota, there was a lack of space there; chambering in Watford City complied with the requirement that no more than 70 percent of the chambers be located in cities with a population of more than 10,000. In re Chambering of New Judgeship No. 11 In the Northwest Judicial Dist., 2013 ND 86, 831 N.W.2d 717, 2013 N.D. LEXIS 88 (June 4, 2013).

27-05-08.1. Terms of district court to be fixed by supreme court. [Repealed]

Repealed by S.L. 1981, ch. 316, § 2.

27-05-09. First judicial district — General terms. [Repealed]

Repealed by S.L. 1947, ch. 229, § 2.

27-05-10. Second judicial district — General terms. [Repealed]

Repealed by S.L. 1947, ch. 229, § 2.

27-05-11. Third judicial district — General terms. [Repealed]

Repealed by S.L. 1947, ch. 229, § 2.

27-05-12. Fourth judicial district — General terms. [Repealed]

Repealed by S.L. 1947, ch. 229, § 2.

27-05-13. Fifth judicial district — General terms. [Repealed]

Repealed by S.L. 1947, ch. 229, § 2.

27-05-14. Sixth judicial district — General terms. [Repealed]

Repealed by S.L. 1947, ch. 229, § 2.

27-05-15. Terms for naturalization. [Repealed]

Repealed by S.L. 1981, ch. 316, § 2.

27-05-16. District judges may call special terms and may summon juries thereto. [Repealed]

Repealed by S.L. 1981, ch. 316, § 2.

27-05-17. General provisions concerning terms. [Repealed]

Repealed by S.L. 1981, ch. 316, § 2.

27-05-18. District judges prohibited from holding consecutive jury terms — Exception. [Repealed]

Repealed by S.L. 1995, ch. 295, § 1.

27-05-19. Effect where first day of term falls on legal holiday. [Repealed]

Repealed by S.L. 1981, ch. 316, § 2.

27-05-20. Acts of district judge are acts of court. [Repealed]

Repealed by S.L. 1981, ch. 316, § 2.

27-05-21. District judges to have statewide jurisdiction — Exception. [Repealed]

Repealed by S.L. 1981, ch. 316, § 2.

27-05-22. District judges to act only within their districts — Exceptions.

No judge of a district court of this state may hear or determine any action, special proceeding, motion, or application, or make any order, or give any judgment, in any action or proceeding pending or about to be commenced in a judicial district other than the one for which that judge was elected, except:

  1. Upon the written request of a judge of such other district;
  2. When, upon the application of either party to such action or proceeding and upon due notice to the opposite party, if that party has appeared and is entitled to such notice, it shall be made to appear by affidavit to the satisfaction of such judge that the judges of such other district are absent from their district, incapacitated, or disqualified to act therein. Such application may be made only to a judge of a district adjoining that in which such action or proceeding is pending or about to be commenced, and upon the hearing thereof counter affidavits may be used;
  3. When designated by the supreme court to act in such other district in the place and stead of a district judge thereof who has been disqualified by the filing of an affidavit of prejudice; or
  4. A motion upon notice may be heard by a judge of a district court in which the action or proceeding is not pending in the cases provided by law only, either in the district in which the action or proceeding is pending or in an adjoining district, but such motion when heard by the judge of the district in which the action or proceeding is pending can be heard only in such district.

Source:

C. Civ. P. 1877, § 510; S.L. 1893, ch. 85, § 1; 1893, ch. 86, § 4; R.C. 1895, §§ 5179, 5716; R.C. 1899, §§ 5179, 5716; R.C. 1905, §§ 6765, 7322; C.L. 1913, §§ 7353, 7941; R.C. 1943, §§ 27-0522, 28-2804; S.L. 1951, ch. 195, § 2; 1957 Supp., § 27-0522; S.L. 1983, ch. 82, § 56.

Notes to Decisions

Action Outside District.

Where a district judge has been regularly called into a district, other than his own, to try a criminal case, he may hear and decide any matter connected with the case, after the issue of fact has been disposed of by the jury, and such hearing or decision may be had in either county. State v. Tomlinson, 7 N.D. 294, 74 N.W. 995, 1898 N.D. LEXIS 60 (N.D. 1898).

A district judge had jurisdiction to try an action in another district pursuant to a request in writing by the judge of such district. First Nat'l Bank v. Red River Valley Nat'l Bank, 9 N.D. 319, 83 N.W. 221, 1900 N.D. LEXIS 235 (N.D. 1900); Gunn v. Lauder, 10 N.D. 389, 87 N.W. 999, 1901 N.D. LEXIS 54 (N.D. 1901); State ex rel. McDonald v. Hanley, 43 N.D. 388, 175 N.W. 569, 1919 N.D. LEXIS 51 (N.D. 1919); Smith v. King, 58 N.D. 680, 227 N.W. 228, 1929 N.D. LEXIS 267 (N.D. 1929).

A judge may act outside his district upon a request in a cause not pending at the time of the request. State v. Heidt, 20 N.D. 357, 127 N.W. 72, 1910 N.D. LEXIS 79 (N.D. 1910).

Change of Venue.

After a judge grants a change of venue to a county in another district, a duly-elected judge in the judicial district to which the case is transferred then has jurisdiction to decide the lawsuit. Thompson v. Peterson, 546 N.W.2d 856, 1996 N.D. LEXIS 123 (N.D. 1996).

Rendition of Judgment.

Where trial judge had jurisdiction of the person of the defendant and the subject matter of the action, a judgment rendered outside his judicial district, but within the state, was not void for want of jurisdiction. State v. Winbauer, 26 N.D. 43, 143 N.W. 387, 1913 N.D. LEXIS 43 (N.D. 1913).

A judge of one judicial district, requested by a judge of another judicial district to determine proceedings, has no authority to act after rendering judgment. King v. King, 59 N.D. 688, 231 N.W. 846, 1930 N.D. LEXIS 186 (N.D. 1930).

Vacation of Judgment.

A judge sitting in another district during the trial of a case, may hear and determine motion to vacate and set aside judgment in his own district where the motion was noticed to be heard before him in his own district. Peterson v. Finnegan, 45 N.D. 101, 176 N.W. 734, 1920 N.D. LEXIS 108 (N.D. 1920).

27-05-23. Judgments or orders improperly given in matters pending outside judge’s district — Voidable — Vacating.

No order or judgment given in any action or proceeding by a judge of a district court of this state contrary to the limitations of the preceding section is void for that reason, but such order or judgment must be vacated by the supreme court upon appeal, if the order or judgment is appealable, or by any judge of the district in which such action or proceeding is pending if an application for that purpose is made to such judge within thirty days from the time such order was made or such judgment was given.

Source:

S.L. 1893, ch. 86, § 5; R.C. 1895, § 5180; R.C. 1899, § 5180; R.C. 1905, § 6766; C.L. 1913, § 7354; R.C. 1943, § 27-0523.

Notes to Decisions

Expiration of Authority.

An order by the district judge in an action in another district, after the expiration of the authority conferred by the written request of another judge, was not void. Smith v. King, 58 N.D. 680, 227 N.W. 228, 1929 N.D. LEXIS 267 (N.D. 1929).

Vacation of Order.

An application to vacate an order, made without authority by a judge of another judicial district, must be made to the judge of the county in which the action is pending. King v. King, 59 N.D. 688, 231 N.W. 846, 1930 N.D. LEXIS 186 (N.D. 1930).

The trial court has the power, when properly exercised, to set aside its judgments, either on its own motion or on motion of the parties. Olson v. Ottertail Power Co., 65 N.D. 46, 256 N.W. 246, 1934 N.D. LEXIS 176 (N.D. 1934).

Voidable Judgment.

A judgment entered by order of a judge of a district which was detached from the trial district after the trial but before decision is voidable but not void. Bruegger v. Cartier, 20 N.D. 72, 126 N.W. 491, 1910 N.D. LEXIS 64 (N.D. 1910); Missouri Slope Land & Inv. Co. v. Hastead, 27 N.D. 591, 147 N.W. 643, 1914 N.D. LEXIS 82 (N.D. 1914).

27-05-24. Ex parte applications may be heard and default judgments may be given.

Ex parte application may be made, heard, and determined in the district court, and judgment by default may be given therein at any place within this state.

Source:

S.L. 1893, ch. 86, § 2; R.C. 1895, § 5177; R.C. 1899, § 5177; R.C. 1905, § 6763; C.L. 1913, § 7351; R.C. 1943, § 27-0524.

27-05-25. How business of district courts assigned judges and regulated — Several cases triable at same time.

In judicial districts of this state having more than one judge, the business of the court must be divided between or among the judges and otherwise regulated as the supreme court by order shall direct. Each of such judges may try court or jury cases separately during the same term and at the same time.

Source:

S.L. 1919, ch. 167, § 5; R. M. 1919, p. 509; 1925 Supp., § 769a5; R.C. 1943, § 27-0525.

27-05-26. Change of venue.

A change of venue may be taken from one judge to another in the same district or in another district, or from one county to another, or from one district to another in the manner provided by law.

Source:

S.L. 1919, ch. 167, § 7; R.M. 1919, p. 509; 1925 Supp., § 769a7; R.C. 1943, § 27-0526.

Notes to Decisions

Change of Judge.

Upon the request of a judge of the district court, a judge from another district is authorized to act. State ex rel. McDonald v. Hanley, 43 N.D. 388, 175 N.W. 569, 1919 N.D. LEXIS 51 (N.D. 1919).

After a judge grants a change of venue to a county in another district, a duly-elected judge in the judicial district to which the case is transferred then has jurisdiction to decide the lawsuit. Thompson v. Peterson, 546 N.W.2d 856, 1996 N.D. LEXIS 123 (N.D. 1996).

Disqualification of Judge.

Under its supervisory control the supreme court, upon the filing of a duplicate affidavit of prejudice in a criminal action, must designate a trial judge where the disqualified judge failed to do so. Lowe v. District Court, 48 N.D. 1, 181 N.W. 92, 1921 N.D. LEXIS 1 (N.D. 1921).

Improper Venue for Workers’ Compensation.

District court to which a decision of the Workers’ Compensation Bureau was appealed could properly change the venue of the appeal by transferring the case to the district court of the place of injury pursuant to N.D.C.C. § 28-04-07, the district court of appropriate venue under N.D.C.C. § 65-10-01. Hayden v. North Dakota Workers Compensation Bureau, 447 N.W.2d 489, 1989 N.D. LEXIS 191 (N.D. 1989).

Collateral References.

Relationship of judge to one who is party in an official or representative capacity as disqualification, 10 A.L.R.2d 1307.

Effect of nonsuit, dismissal, or discontinuance of action on prior order changing venue, 11 A.L.R.2d 1407.

Change of venue of actions or proceedings against public officer, 48 A.L.R.2d 423, 447.

Relationship to attorney as disqualifying judge, 50 A.L.R.2d 143.

Disqualification of judge in proceedings to punish contempt against or involving himself or court of which he is a member, 64 A.L.R.2d 600.

Certiorari to compel change of venue in criminal case, right of state to, 91 A.L.R.2d 1095.

Place of session of trial court as affecting validity of proceedings, 18 A.L.R.3d 572.

Right of accused in misdemeanor prosecution to change of venue on grounds of inability to secure fair trial and the like, 34 A.L.R.3d 804.

State’s right to change of venue in criminal case, 46 A.L.R.3d 295.

Change of venue as justified by fact that large number of inhabitants of local jurisdiction have interest adverse to party to state civil action, 10 A.L.R.4th 1046.

27-05-27. Motions before trial judge. [Repealed]

Superseded by N.D.R.Ct. 3.3.

27-05-28. Orders without notice.

Any order of the district court made without notice to the adverse party may be vacated or modified without notice by the judge who made it or the same may be vacated or modified on notice in the manner in which other motions are made.

Source:

C. Civ. P. 1877, § 510; S.L. 1893, ch. 85, § 1; R.C. 1895, § 5720; R.C. 1899, § 5720; R.C. 1905, § 7326; C.L. 1913, § 7946; R.C. 1943, § 28-2809.

Derivation:

Wait’s (N.Y.) Code, 401; Harston’s (Cal.) Practice, 1004.

27-05-29. District judges may assign additional duties to juvenile supervisors — Authority of supreme court. [Repealed]

Repealed by S.L. 2007, ch. 274, § 36.

27-05-30. Judicial referees.

  1. The presiding judge of a judicial district, on behalf of the judges of the district, may appoint one or more referees to serve on a full-time or part-time basis. A referee is entitled to receive a salary within the limits of legislative appropriation.
  2. In accordance with rules of the supreme court, the presiding judge may assign a referee to preside in any case or proceeding provided for in chapter 12.1-31.2, title 14, sections 20.1-01-28 and 20.1-01-29, chapters 27-20.2, 27-20.3, 27-20.4, and 28-25, subsection 6 of section 50-09-08.6, and subsection 2 of section 50-09-14.
  3. The supreme court may promulgate rules for the qualification of referees, the extent and assignment of authority by the presiding judge, procedure, and the conduct of the office, including regulations for training sessions and continuing education.

Source:

S.L. 1985, ch. 334, § 1; 1989, ch. 382, § 3; 2013, ch. 241, § 1; 2021, ch. 245, § 14, effective July 1, 2021.

Cross-References.

Judicial referees, see Administrative Rule 13, North Dakota Court Rules Annotated.

Notes to Decisions

Child Support.

Judicial referees have statutory authority to hear child support cases under this section and Admin. Rule 13, adopted pursuant to N.D. Const., Art. VI, section 3; defendant could have requested to have the proceeding heard by a district court judge and had availed himself of that right in the past, but because he did not avail himself of that right in show-cause proceeding, he could not attack the referee’s authority on appeal. Mehl v. Mehl, 545 N.W.2d 777, 1996 N.D. LEXIS 105 (N.D. 1996).

Collateral References.

Referee’s failure to file report within time specified by statute, court order, or stipulation as terminating reference, 71 A.L.R.4th 889.

27-05-31. Magistrates — Appointment — Salary — Authority.

The presiding judge of a judicial district may appoint, subject to rules adopted by the supreme court, any qualified person, including a clerk of the district court, to serve as magistrate. A magistrate appointed pursuant to this section may be paid a salary as determined by the supreme court and has that authority performable by a district court judge as assigned by the presiding judge. The supreme court may adopt rules for the qualifications of magistrates, the extent and assignment of authority, and the conduct of the office, including rules relating to training sessions and continuing education.

Source:

S.L. 1991, ch. 326, § 87.

Notes to Decisions

Review.

District court errs as a matter of law when it denies a respondent the full and fair hearing mandated by N.D.C.C. § 12.1-31.2-01 and due process. The same rule applies to a review of a magistrate’s decision under N.D.C.C. § 27-05-31. Harris v. Harris, 2010 ND 45, 779 N.W.2d 642, 2010 N.D. LEXIS 44 (N.D. 2010).

Order of a magistrate, who has that authority performable by a district court judge as assigned by the presiding judge, N.D.C.C. § 27-05-31, is appealable to the North Dakota Supreme Court under N.D.C.C. § 28-27-01. Therefore, a district court did not err by determining that it was unable to review a magistrate’s decision to issue a disorderly conduct restraining order. Harris v. Harris, 2010 ND 45, 779 N.W.2d 642, 2010 N.D. LEXIS 44 (N.D. 2010).

CHAPTER 27-05.1 Family Courts [Repealed]

[Repealed by S.L. 1991, ch. 328, § 9]

CHAPTER 27-05.2 Clerk of District Court Funding and Fees

27-05.2-01. Statement of intent.

It is the intent of the legislative assembly that adequate and proper judicial services, including clerk of district court services, be provided in each county in this state. It is also the intent of the legislative assembly that funding for clerk of district court services be provided by the state judicial system within the limits of legislative appropriations and in cooperation with the several boards of county commissioners of the various counties in this state.

Source:

S.L. 1999, ch. 278, § 50.

27-05.2-02. State funding of clerk of district court services — Agreements to provide services — Transition schedule.

  1. Except as provided in subsection 2, the supreme court, within the limits of legislative appropriations and pursuant to subsection 7, shall provide clerk of district court services in each county in the state. The supreme court may provide such services through clerks of district court, deputies, and assistants who are employees of the judicial system or through service agreements under subsection 6. The supreme court shall develop standards and procedures to ensure that adequate clerk of district court services are provided. “Clerk of district court services” means those duties and services, as provided by statute or rule of the supreme court, that directly serve the judicial system and the provision of effective and efficient judicial services to the public. Beginning January 1, 2003, the individual designated by a board of county commissioners to provide clerk of district court services under subsection 2 or 6 serves as ex officio clerk of district court. The salary and bond for the ex officio clerk of district court must be fixed by a resolution adopted by the board of county commissioners.
  2. A county may elect to provide clerk of district court services at the county’s own expense. The board of county commissioners shall forward to the supreme court a resolution indicating its election to provide services under this subsection. Such services must be provided in a manner consistent with standards and procedures established by the supreme court. If the county is unable to provide adequate clerk of district court services, the supreme court shall provide for those services in any manner it considers appropriate. If a county has entered into an agreement under subsection 6, the county may not provide clerk of district court services under this subsection until after the agreement has expired.
  3. In a county in which the supreme court determines that at least five full-time employees are necessary to provide adequate clerk of district court services, the elected clerk of district court and clerk of court staff designated by the supreme court shall become employees of the state judicial system if the board of county commissioners consents to the transition after consultation with the elected clerk. This subsection applies upon receipt by the supreme court of a resolution adopted by the board of county commissioners indicating its consent. Any equipment, including technology-related equipment, and furnishings in the control and custody of the clerk of district court on the date the clerk becomes a state employee must remain in the control and custody of the clerk until the state court administrator determines the items are no longer needed. The clerk, upon becoming a state employee, shall receive a salary in an amount not less than the salary received as a county employee and shall remain an employee of the state judicial system until the clerk retires, resigns, or the term for which the clerk was initially elected expires, whichever occurs earlier. Thereafter, the clerk of district court must be appointed in the manner provided by supreme court rule. If the board of county commissioners does not consent to the clerk and designated staff becoming employees of the state judicial system, the county must provide clerk of district court services at its own expense in accordance with subsection 2.
  4. In a county in which the supreme court determines that one or more, but less than five, full-time employees are necessary to provide clerk of district court services, the elected clerk of district court and clerk of court staff designated by the supreme court shall become employees of the state judicial system in the manner described in subsection 3. If the board of county commissioners does not consent to the clerk and designated staff becoming employees of the state judicial system, the county may provide clerk of district court services at its own expense under subsection 2 or the supreme court may provide funding for clerk of district court services in accordance with an agreement under subsection 6.
  5. In a county in which the supreme court determines that less than one full-time employee is necessary to provide clerk of district court services, the supreme court may provide funding for such services in accordance with an agreement under subsection 6.
  6. The supreme court may enter into an agreement with one or more boards of county commissioners to provide funding for the provision of clerk of district court services in a manner consistent with standards and procedures established by the supreme court. Funding for personnel under the agreement must be equal to the amount, based on county employee compensation levels, necessary for the number of full-time employees needed to provide clerk of district court services. Funding must be available under the agreement to defray the cost of technology-related equipment considered necessary by the supreme court for the delivery of adequate clerk of district court services. After entering into an agreement under this subsection, a county may, under chapter 11-10.2 or 11-10.3, provide for the delivery of clerk of district court services in a manner consistent with the agreement. If a county fails to fulfill the terms of an agreement or is unable to provide clerk of district court services consistent with standards and procedures established by the supreme court, the supreme court shall provide for those services in any manner it considers appropriate.
    1. State funding for the provision of clerk of district court services may be provided beginning January 1, 2001. Before April 1, 2000, each board of county commissioners shall notify the supreme court of its election to provide clerk of district court services under subsection 2, of its consent to the elected clerk of court and designated staff becoming state employees under subsection 3 or 4, or of its election to enter into an agreement under subsection 6. If a board of county commissioners elects to enter into an agreement under subsection 6, the agreement must be executed before July 1, 2000. If an agreement is not executed before that date, the county must provide clerk of district court services at its own expense under subsection 2.
    2. Before April 1, 2002, and thereafter before April first of each succeeding even-numbered year, each board of county commissioners that has executed an agreement under subsection 6 or whose county is providing clerk of district court services under subsection 2 must notify the supreme court of its election to continue the existing arrangement or initiate a different option. If a board of county commissioners elects to enter into an agreement under subsection 6, the agreement must be executed before July first of the year the election is made. If an agreement is not executed before that date, the county must provide clerk of district court services at its own expense under subsection 2.

Source:

S.L. 1999, ch. 278, § 50; 1999, ch. 291, § 1; 2005, ch. 261, § 24.

Cross-References.

Administer oaths, see § 44-05-01.

Adoption decrees, reports of, see § 23-02.1-17.

Certify abstract, see § 43-01-19.

Consolidation of offices, see § 11-10-02.

County canvassing board, member of, see § 16.1-15-15.

Deputies, see § 11-10-11.

Discharge papers may be recorded, see § 37-01-34.

Divorce and annulment reports, see §§ 23-02.1-24, 27-05.2-05.

Election of clerk of district court, see § 11-10-02.

Issuing subpoenas, see N.D.R.Civ.P., Rule 45(a).

Judgment docket, see § 28-20-16.

Mileage of clerk of district court, see § 11-10-15.

Oath of office, see § 11-10-09.

Office, board of county commissioners to provide, see § 11-10-20.

Property taken from accused upon arrest, see § 29-01-25.

Removal from office, see § 44-11-01.

Salary, see § 11-10-10.

Taking deposition, see N.D.R.Civ.P., Rule 28(a).

Term of office, see § 11-10-02.

Vacancy in office, see §§ 44-01-04, 44-02-04.

Notes to Decisions

County Justice.

A clerk of the district court, who qualified as a county justice, did not vacate his office of clerk of court as the two offices are not incompatible. State v. Lee, 78 N.D. 489, 50 N.W.2d 124, 1951 N.D. LEXIS 107 (N.D. 1951).

Collateral References.

Liability of clerk of court or his bond for the defaults and misfeasances of his assistants or deputies, 71 A.L.R.2d 1140.

Applicability of judicial immunity to acts of clerk of court under state law, 34 A.L.R.4th 1186.

27-05.2-03. Fees to be charged by the clerk of the district court.

  1. A clerk of the district court shall charge and collect the following fees in civil cases:
    1. For filing a case for decision that is not a small claims action, eighty dollars.
      1. Fifteen dollars of this fee must be paid by the clerk of court to the state treasurer for deposit in the civil legal services fund. Any fees collected under this paragraph which exceed seven hundred fifty thousand dollars in any biennium must be paid by the clerk of court to the state treasurer for deposit in the state general fund.
      2. For the filing of a petition for dissolution of marriage, annulment, or separation from bed and board, fifty dollars of this fee must be paid by the clerk of court to the state treasurer for deposit in the displaced homemaker account created by section 14-06.1-14 and fifteen dollars of this fee must be paid by the clerk of court to the state treasurer for deposit in the state general fund.
      3. For all other filings, sixty-five dollars of this fee must be paid by the clerk of court to the state treasurer for deposit in the state general fund.
    2. For filing an answer to a case that is not a small claims action, fifty dollars. The clerk shall deposit this fee with the state treasurer for deposit in the general fund in the state treasury.
    3. For filing a small claims action in district court, ten dollars.
    4. For filing any matter authorized to be filed in the office of the clerk of court other than under subdivision a, b, or c, ten dollars.
    5. For preparing, certifying, issuing, or transmitting any document, ten dollars, or a lesser fee as may be set by the state court administrator.
    6. For filing a motion or an answer to a motion to modify an order for alimony, property division, child support, or child custody, thirty dollars. The clerk shall deposit this fee with the state treasurer for deposit in the general fund of the state treasury.
  2. Section 27-01-07 applies to fees charged under this section. The clerk of court may not charge or collect any fee, prescribed by this or any other section, from the state or an agency thereof or from a political subdivision or agency thereof.

Source:

S.L. 1999, ch. 278, § 50; 2009, ch. 262, § 1; 2019, ch. 252, § 1, effective August 1, 2019.

Notes to Decisions

Payment of Filing Fee.

Clerk’s office did not require the customer to pay the filing fee when her answer was accepted and filed although the customer filed a request for waiver of the filing fee, and she submitted the $50 filing fee when she filed her motion to reconsider. Before accepting and filing an answer, a clerk should require the filing fee to be paid or waived; however, if the clerk did not do so, N.D.C.C. § 27-05.2-03(1)(b) did not invalidate the filing of the answer. Citibank v. Reikowski, 2005 ND 133, 699 N.W.2d 851, 2005 N.D. LEXIS 165 (N.D. 2005).

27-05.2-04. Clerk to keep record of fees — Monthly report to county auditor or state treasurer — Continuing appropriation.

A clerk of the district court providing clerk services in accordance with subsection 2 or 6 of section 27-05.2-02 shall keep a public record of all money received as fees for services rendered as clerk. Within three days after the close of each calendar month, the clerk shall file with the county auditor a statement under oath showing the amount of fees received as clerk since the date of the clerk’s last report and within three days thereafter the clerk shall deposit with the county treasurer the total sum of such fees which must be used for facilities, except fees that the clerk is directed to deposit with the state treasurer or is authorized expressly to retain. Within three days after the close of each calendar month, a clerk who has become a state employee under subsection 3 or 4 of section 27-05.2-02 shall file with the state treasurer a statement under oath showing the amount of fees received by the clerk since the date of the clerk’s last report. Within three days thereafter, the clerk shall deposit with the state treasurer the total sum of fees required to be deposited in the general fund or in a designated special fund. The clerk shall forward to the county treasurer any fees received under section 27-05.2-03 which are not required to be deposited in the state general fund or a designated special fund. Those fees must be used for facilities. A special court receivables fund is established in the state treasury for purposes of depositing any money received by the clerk which is not required to be deposited in the state general fund, a different special fund, or the county treasury and which is received as bail or restitution, or otherwise received pursuant to an order of the court. Moneys in the special fund are appropriated to the judicial branch on a continuing basis for purposes of refunding bail, forwarding restitution amounts to the entitled recipient, or otherwise making payments as directed by an order of the court. To facilitate making payments from the special fund, the clerk may establish a special account in the Bank of North Dakota or in a banking institution designated as a depository of public funds under chapter 21-04. If money deposited as bail is forfeited, the clerk shall submit the appropriate sum to the state treasurer for deposit in the state general fund. If the clerk is unable to make payments from the special account because the address of the recipient is unknown or the recipient cannot otherwise be located, the clerk shall dispose of the deposited money in accordance with chapter 47-30.2.

Source:

S.L. 1999, ch. 278, §§ 50, 51; 2001, ch. 283, § 1; 2021, ch. 337, § 9, effective July 1, 2021.

Cross-References.

Fees turned over to county treasurer, see § 11-10-14.

DECISIONS UNDER PRIOR LAW

Constitutionality.

The provisions of S.L. 1947, ch. 228, increasing the filing fees under section 11-17-04, and amounts paid to the bar association under this section, did not violate section of the constitution prohibiting special privileges. Menz v. Coyle, 117 N.W.2d 290, 1962 N.D. LEXIS 91 (N.D. 1962).

Payment of a portion of the filing fees collected, which portion was eventually remitted to the state bar association, did not violate the constitution. Menz v. Coyle, 117 N.W.2d 290, 1962 N.D. LEXIS 91 (N.D. 1962).

Taxes collected by the clerk of court under this section were not included in moneys covered by the provisions of the constitution that all public moneys received by public officials of the state be deposited with the state treasurer. Menz v. Coyle, 117 N.W.2d 290, 1962 N.D. LEXIS 91 (N.D. 1962).

27-05.2-05. Decree or judgment of divorce, annulment, or paternity filed with registrar of vital statistics.

The clerk of the district court in which any decree or judgment of divorce, annulment of marriage, or paternity has been entered shall within fifteen days of the filing thereof notify the state registrar of vital statistics of the entry of the decree or judgment of divorce, annulment of marriage, or paternity and shall furnish such information relating thereto as the state registrar may require upon such forms as may be furnished by the state registrar.

Source:

S.L. 1999, ch. 278, § 50.

27-05.2-06. Records maintenance and disposal.

A clerk of district court shall maintain and dispose of court records in accordance with rules, policies, and procedures adopted by the supreme court.

Source:

S.L. 1999, ch. 278, § 50.

27-05.2-07. Penalty for neglect of duty.

If an ex officio clerk of the district court violates the clerk’s oath of office or neglects or refuses to perform any of the duties of office and any person is injured or aggrieved by such violation or neglect, such person may institute legal proceedings upon the bond of the clerk and recover double the amount of damages actually sustained. For each such violation or neglect by the clerk, the county treasurer shall collect a forfeiture of not less than fifty dollars.

Source:

S.L. 1999, ch. 278, §§ 50, 52.

27-05.2-08. Court facilities improvement and maintenance fund — Administration — Continuing appropriation.

The court facilities improvement and maintenance fund is a special fund in the state treasury. The state treasurer shall deposit in the fund certain fees collected under section 29-26-22. All moneys in the fund are appropriated on a continuing basis to be used as provided in this chapter.

Source:

S.L. 2003, ch. 266, § 3.

27-05.2-09. Court facilities improvement advisory committee — Members.

  1. The court facilities improvement advisory committee consists of:
    1. One member appointed by the North Dakota association of counties to represent counties with a population fewer than seven thousand five hundred.
    2. One member appointed by the North Dakota association of counties to represent counties with a population of seven thousand five hundred or more.
    3. The state court administrator, who shall serve as chairman of the committee.
    4. One member appointed by the state bar association of North Dakota.
    5. One member appointed by the chairman of the legislative management.
  2. The term of each member is three years. Initially, as determined by lot, one member shall serve for one year, two members shall serve for two years, and two members shall serve for three years. At the end of the member’s term, the appointing authority shall appoint a successor for a full three-year term. Except for the state court administrator, a member may not serve more than two 3-year terms. A vacancy must be filled by the appointing authority for the remainder of the term.
  3. At the initial meeting of the committee, the committee shall adopt rules of operation and procedure for the committee. The committee shall submit the rules to the supreme court for approval. The rules of operation must provide that a quorum of the committee consists of at least three members.
  4. The members of the committee are entitled to reimbursement for travel and expenses as provided by law for other state officers. Travel and expense costs must be paid from funds from the court facilities improvement and maintenance fund.
  5. The supreme court shall provide staff services for the committee.

Source:

S.L. 2003, ch. 266, § 4; 2009, ch. 482, § 97; 2013, ch. 242, § 1; 2019, ch. 253, § 1, effective August 1, 2019.

27-05.2-10. Application for grants from court facilities improvement and maintenance fund.

Moneys in the court facilities improvement and maintenance fund may be used by the court facilities improvement advisory committee to make grants to counties to provide funds for court facilities improvement and maintenance projects. The committee shall review applications to determine if the purpose of a grant is consistent with the purposes of the fund and if the proposed project is a necessary improvement to court facilities or essential to remodel or maintain existing court facilities in the applicant county. A grant may be awarded to a county only if the applicant county agrees to provide local funding for the project in an amount at least equal to twenty-five percent of the total cost of the project. The committee shall ensure that at least twenty-five percent of funds granted during a biennium are allocated to counties with a population fewer than seven thousand five hundred. Grants disbursed under this section may be used only to improve or provide essential remodeling or maintenance to facilities used for chambers, courts, and court-related services.

Source:

S.L. 2003, ch. 266, § 5.

CHAPTER 27-06 District Court Reporters and Bailiffs [Repealed]

[Repealed by S.L. 2013, ch. 243, § 1]

27-06-01. District court reporter — Appointment, oath, substitutes, qualifications. [Repealed]

Repealed by S.L. 2013, ch. 243, § 1.

27-06-02. Salary and expenses of court reporter. [Repealed]

Repealed by S.L. 2013, ch. 243, § 1.

27-06-03. Duties of district court reporter. [Repealed]

Repealed by S.L. 2013, ch. 243, § 1.

27-06-04. Filing of shorthand notes taken by district court reporter. [Repealed]

Repealed by S.L. 2013, ch. 243, § 1.

27-06-05. Transcript prepared by court reporter. [Repealed]

Repealed by S.L. 2013, ch. 243, § 1.

27-06-06. Transcript in criminal action prepared at expense of state — Filing and use of transcript. [Repealed]

Repealed by S.L. 2013, ch. 243, § 1.

27-06-07. Certification of transcript. [Repealed]

Repealed by S.L. 2013, ch. 243, § 1.

27-06-08. Fees for transcripts. [Repealed]

Repealed by S.L. 2013, ch. 243, § 1.

27-06-09. Bailiffs of district courts — Appointment — Salary. [Repealed]

Repealed by S.L. 2013, ch. 243, § 1.

CHAPTER 27-07 County Courts [Repealed]

[Repealed by S.L. 1981, ch. 319, § 51]

CHAPTER 27-07.1 County Courts [Repealed]

[Repealed by S.L. 1991, ch. 326, § 203]

CHAPTER 27-08 County Courts of Increased Jurisdiction [Repealed]

[Repealed by S.L. 1981, ch. 319, § 51]

CHAPTER 27-08.1 Small Claims Court

27-08.1-01. Small claims court — Jurisdictional limits — Venue.

  1. All judges of the district courts may exercise the jurisdiction conferred by this chapter, and while sitting in the exercise of that jurisdiction must be known and referred to as the “small claims court”. The jurisdiction of this court is confined to cases for recovery of money, or the cancellation of any agreement involving material fraud, deception, misrepresentation, or false promise, when the value of the agreement or the amount claimed by the plaintiff or the defendant does not exceed fifteen thousand dollars.
  2. The proceedings in this court must be commenced:
    1. If the defendant is a corporation, limited liability company, or a partnership, in any county in which the defendant has a place of business or in any county in which the subject matter of the claim occurred.
    2. If the claim is for collection of a check written without sufficient funds or without an account, in the county where the check was passed, or in the county of the defendant’s residence or place of business.
    3. If the defendant is an individual and the claim is for collection of an open account on which credit has been extended:
      1. In the county of the defendant’s residence or place of business; or
      2. If the amount of the claim is less than one thousand dollars and is not from a telephone or mail order transaction, in the county where the transaction occurred or in the county of the defendant’s residence or place of business.
    4. If the defendant is an individual and the claim is not made under subdivision b or c, in the county of the defendant’s residence.
    5. If the defendant is an individual and the claim arose as the result of the defendant’s lease of real property or as the result of a dispute over disposition of earnest money or other money deposit arising from a contract to purchase real property, in the county where the real property is located unless the plaintiff and the defendant consent in writing to a proceeding in a different county.
    6. If the plaintiff is a political subdivision and the claim is for a public utility debt, in the county in which the political subdivision is located.
  3. Except for an action under subdivision c, e, or f of subsection 2, the defendant may elect to remove the action to a small claims court in the defendant’s county of residence. A claim may not be filed by an assignee of that claim. A garnishment or attachment may not issue from this court until after judgment is entered.

Source:

S.L. 1971, ch. 303, § 1; 1975, ch. 275, § 1; 1977, ch. 265, § 1; 1981, ch. 320, § 53; 1983, ch. 353, § 1; 1985, ch. 82, § 40; 1985, ch. 340, § 1; 1991, ch. 326, § 91; 1991, ch. 331, § 1; 1993, ch. 54, § 106; 1993, ch. 319, § 1; 1995, ch. 296, § 1; 1995, ch. 297, § 1; 1997, ch. 262, § 1; 1997, ch. 263, § 1; 2009, ch. 263, § 1; 2013, ch. 244, § 1; 2015, ch. 228, § 1, effective August 1, 2015.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 228, S.L. 2015 became effective August 1, 2015.

Notes to Decisions

Subject Matter Jurisdiction.

Small claims court did not exceed its jurisdiction by entering a $15,000 judgment against a business owner where whether or not he was individually responsible for a corporate debt was a question of law that did not deprive the small claims court of subject matter jurisdiction, and the owner had voluntarily submitted himself to the small claims court's jurisdiction by answering the claim affidavit and appearing at the hearing. Winter v. Solheim, 2015 ND 210, 868 N.W.2d 842, 2015 N.D. LEXIS 232 (N.D. 2015).

Tort Claims.

A small claims court has jurisdiction over a tort claim that does not exceed the statutory maximum. Svanes v. Grenz, 492 N.W.2d 576, 1992 N.D. LEXIS 230 (N.D. 1992).

Collateral References.

Small claims: jurisdictional limits as binding on appellate court, 67 A.L.R.4th 1117.

Law Reviews.

Minor Dispute Resolution in North Dakota, 57 N.D. L. Rev. 163 (1981).

Decisions under Prior Law

Subject Matter Jurisdiction.

Small claims court lacks subject matter jurisdiction over an action commenced in a county other than that of defendant’s residence. Bernhardt v. Dittus, 265 N.W.2d 684, 1978 N.D. LEXIS 230 (N.D. 1978).

27-08.1-02. Commencement of action — Claim affidavit.

Actions in the small claims court are commenced whenever any person executes and files with the court a claim affidavit, and causes the affidavit to be served by a person of legal age, not a party to or interested in the action, on the defendant or mails it to the defendant by certified mail with restricted delivery along with a form upon which the defendant must indicate whether a hearing is requested and whether the defendant elects to remove the action to district court. If, within twenty days of service of the affidavit and form, the court has not received a request for a hearing or an election to remove to district court, or if the defendant indicates that a hearing is not requested, a hearing will not be scheduled and judgment may be entered against the defendant by default. If the defendant requests a hearing in small claims court, the hearing must be not less than ten days and not more than thirty days after receipt of the request. Except for an action under subdivision e of subsection 2 of section 27-08.1-01, the mailing or personal service may be made anywhere within the state. Forms used in small claims court actions must be approved by the state court administrator and obtained from, or at the direction of, the clerk of district court or in electronic form from the supreme court.

Source:

S.L. 1971, ch. 303, § 2; 1981, ch. 332, § 1; 1987, ch. 376, § 1; 1995, ch. 296, § 2; 1995, ch. 298, § 1; 1997, ch. 263, § 2; 2001, ch. 284, § 1; 2021, ch. 246, § 1, effective August 1, 2021.

Cross-References.

North Dakota docket currency standards for district courts and county courts, see Administrative Rule 12, North Dakota Court Rules Annotated.

Notes to Decisions

Acquiring Personal Jurisdiction.

Where service upon defendant is by certified mail, court does not acquire personal jurisdiction over defendant unless and until defendant is in actual receipt of claim affidavit and order for appearance. Bernhardt v. Dittus, 265 N.W.2d 684, 1978 N.D. LEXIS 230 (N.D. 1978).

Court did not acquire jurisdiction over defendant who refused to accept service by certified mail and was not served in any other manner. Bernhardt v. Dittus, 265 N.W.2d 684, 1978 N.D. LEXIS 230 (N.D. 1978).

27-08.1-03. Informal hearing — Answer and counterclaim — Filing and service fees — Examination of debtor.

No formal pleadings other than the claim affidavit and order for appearance may be required, and the hearing and disposition of actions must be informal. A court reporter is not required to be present to take the testimony unless arranged for and paid for by one of the parties to the action. The defendant may file an answer, and file a claim affidavit setting forth any new matter constituting a counterclaim, not to exceed fifteen thousand dollars, which must be served upon the plaintiff by a person of legal age, not a party to or interested in the action, or mailed to the plaintiff by certified mail, not later than forty-eight hours before the hearing set for the appearance of the defendant. The compulsory counterclaim rule does not apply to counterclaims in excess of fifteen thousand dollars. At the hearing, the plaintiff and the defendant may appear without counsel. The court will conduct the proceedings and may make its own inquiry before, during, or after the hearing. After the court has found that money is owing by any party to the proceeding, the court may, in the presence of the prevailing party, inquire of the debtor as to plans for payment of the debt. The court may examine the debtor concerning the property owned by the debtor, at the hearing, as would be made under chapter 28-25. The examination may be made without first having issued an execution against the property of the debtor and without further notice as otherwise provided in chapter 28-25. A trial by jury is not allowed in small claims court. A fee as prescribed in subdivision c of subsection 1 of section 27-05.2-03 must be charged for filing the claim affidavit.

Source:

S.L. 1971, ch. 303, § 3; 1975, ch. 275, § 2; 1975, ch. 276, § 1; 1977, ch. 265, § 2; 1979, ch. 363, § 1; 1981, ch. 320, § 54; 1981, ch. 322, § 2; 1983, ch. 353, § 2; 1985, ch. 336, § 7; 1985, ch. 340, § 2; 1987, ch. 376, § 2; 1991, ch. 331, § 2; 1995, ch. 297, § 2; 1999, ch. 278, § 53; 2009, ch. 263, § 2; 2013, ch. 244, § 2.

Collateral References.

Small claims: jury trial rights in, and on appeal from, small claims court proceeding, 70 A.L.R.4th 1119.

27-08.1-04. Election to proceed in small claims court irrevocable.

Election by the plaintiff to use the procedures provided for in this chapter is irrevocable. In the event the plaintiff elects to discontinue the proceedings, the court shall enter its order accordingly, and unless otherwise provided in the order the dismissal must be deemed to be with prejudice. By election to proceed in small claims court, the plaintiff waives the right to appeal to any other court from the decision of the small claims court. The defendant waives the right to appeal from the decision of the small claims court upon receiving the order for appearance as required herein, unless the defendant elects to remove the action from the small claims court to district court. If the defendant elects to remove the action to district court, the defendant must serve upon the plaintiff a notice of the removal and file with the clerk of the court to which the action is removed a copy of the claim affidavit and the defendant’s answer along with the filing fee, except for an answer fee, required for civil actions. If the defendant elects to remove the action from small claims court to district court, the district court shall award attorney’s fees to a prevailing plaintiff.

Source:

S.L. 1971, ch. 303, § 4; 1975, ch. 275, § 3; 1997, ch. 263, § 3; 2005, ch. 277, § 1.

Notes to Decisions

Attorney Fees Properly Denied.

District court properly denied a subcontractor attorney fees where the remaining defendant was not part of the small claims court proceedings and was not the defendant who elected to remove the case to the district court, the subcontractor chose to amend the complaint to include the remaining defendant in the district court and ultimately dismissed all of the small claims court defendants. If the subcontractor had believed defendants acted in concert to avoid attorney fees, it should not have dismissed all but the remaining defendant. Interiors by France v. Mitzel Contrs., Inc., 2019 ND 158, 930 N.W.2d 133, 2019 N.D. LEXIS 157 (N.D. 2019).

Attorney Fees Properly Granted.

District court did not err awarding attorney’s fees because it awarded the fees to a limited liability (LLC) company from a treatment plan operator and its owner specifically to indemnify the LLC for the attorney’s fees awarded to a corporation; the attorney’s fees award to the LLC was not primarily based on the statute but rather principles of indemnification. Command Ctr., Inc. v. Kluver, 2021 ND 59, 956 N.W.2d 755, 2021 N.D. LEXIS 61 (N.D. 2021).

Certiorari.

Writ of certiorari may be used to determine if small claims court exceeded its jurisdiction. Bernhardt v. Dittus, 265 N.W.2d 684, 1978 N.D. LEXIS 230 (N.D. 1978).

Construction.

Award of attorney fees to a prevailing plaintiff under N.D.C.C. § 27-08.1-04 does not extend to parties who were not part of the original small claims court proceedings. Interiors by France v. Mitzel Contrs., Inc., 2019 ND 158, 930 N.W.2d 133, 2019 N.D. LEXIS 157 (N.D. 2019).

Election to Proceed.

Once the plaintiff elects to proceed in small claims court, he waives all formal rights and is locked into the provisions of this chapter. Raaum v. Powers, 396 N.W.2d 306, 1986 N.D. LEXIS 439 (N.D. 1986).

Failure to Timely Remove.

Failure to timely remove the claim acts as a waiver by appellant to have the action formally adjudicated in district court. Raaum v. Powers, 396 N.W.2d 306, 1986 N.D. LEXIS 439 (N.D. 1986).

Prevailing Party.

Because a paragraph of the parties’ contract was a force majeure clause which relieved defendant landlord from liability for nonperformance and allocated the risk of loss to plaintiff boat owner, plaintiff was not a prevailing party and was not entitled to attorney fees pursuant to this section. Entzel v. Moritz Sport &; Marine, 2014 ND 12, 841 N.W.2d 774, 2014 N.D. LEXIS 12 (Jan. 17, 2014).

District court did not err when it followed the requirements of the statute because the plain language of the statute required it to award a customer her attorney’s fees; a store removed the action to district court, the customer prevailed on her claims at trial, and the jury’s verdict made her a prevailing plaintiff. Johnson v. Menard, Inc., 2021 ND 19, 955 N.W.2d 27, 2021 N.D. LEXIS 21 (N.D. 2021).

District court did not abuse its discretion by using an affidavit and an itemized bill to make an attorney’s fees award because it was not required to do the lodestar method; a customer did not seek attorney’s fees under a federal fee-shifting statute, but rather, she claimed attorney’s fees under a state statute. Johnson v. Menard, Inc., 2021 ND 19, 955 N.W.2d 27, 2021 N.D. LEXIS 21 (N.D. 2021).

Supreme court remanded to the district court to take evidence of and award reasonable attorney’s fees to a customer for her appeal because the customer had not filed any documentation with the supreme court regarding her fees for the appeal; it would appear inconsistent to disallow attorney’s fees for the appeal when the statute granted attorney’s fees to a prevailing plaintiff. Johnson v. Menard, Inc., 2021 ND 19, 955 N.W.2d 27, 2021 N.D. LEXIS 21 (N.D. 2021).

Removal from Small Claims Court.

Once a defendant properly removes an action from small claims court under this section, he has availed himself of all the privileges concomitant to a formal civil trial, including not only the right of appeal, but the right to secure a trial by jury and other traditional aspects of the legal process as well. Raaum v. Powers, 396 N.W.2d 306, 1986 N.D. LEXIS 439 (N.D. 1986).

Review of Erroneous Conclusions of Law.

Defendant who fails to remove the case from the small claims court to the county court of increased jurisdiction waives his right to appeal small claims court’s civil judgment based upon an erroneous conclusion of law, and such judgment is not subject to review by writ of certiorari where the small claims court had jurisdiction over the subject matter and the parties. Kostelecky v. Engelter, 278 N.W.2d 776, 1979 N.D. LEXIS 183 (N.D. 1979).

27-08.1-04.1. Dismissal without prejudice.

If the judge determines at any stage of the proceedings that the case may not be fairly disposed of in small claims court, the judge may dismiss the case without prejudice. A determination that a case may not be fairly disposed of in small claims court must be based on complexity of factual or legal issues or a determination that relief other than money damages or cancellation of an agreement is necessary to dispose of the case. If a case is dismissed under this section, the filing fee must be refunded to the plaintiff.

Source:

S.L. 1991, ch. 331, § 3.

27-08.1-05. Judgment.

The court shall enter a written judgment indicating its decision on all cases filed with the court on the basis of the evidence presented. A judgment must be entered even if either party fails to appear at the hearing. The court may award the costs of the action to the prevailing party. For purposes of enforcement and execution, a judgment of the small claims court has the same force, effects, and attributes of a judgment of the district court.

Source:

S.L. 1971, ch. 303, § 5; 1975, ch. 275, § 4; 1997, ch. 263, § 4.

Notes to Decisions

Appeal Precluded.

The right to appeal in this state is purely statutory. The statutory framework for the small claims court specifically precludes any appeal. Whitaker v. Century 21, 466 N.W.2d 114, 1991 N.D. LEXIS 32 (N.D. 1991).

27-08.1-06. Judgment unsatisfied — Docketing — Execution. [Repealed]

Repealed by S.L. 1997, ch. 263, § 5.

27-08.1-07. Records and destruction of records.

Unless otherwise authorized by rules of the supreme court, records of the small claims court consist of all documents filed in each action and an index for plaintiffs and defendants. Unless otherwise directed by rules of the supreme court, after the judgment is satisfied or becomes ten years old, the court may destroy all papers filed in the case, except the judgment. At the time of destroying the papers, the clerk of court shall make a record upon the judgment identifying the papers destroyed and the dates the papers were filed.

Source:

S.L. 1971, ch. 303, § 7; 1985, ch. 335, § 3; 1985, ch. 337, § 9.

27-08.1-08. Referees of small claims court — Appointment — Term — Method of qualifying — Powers and duties — Compensation.

The presiding judge of the judicial district may appoint a referee of the small claims court who shall hold office at the pleasure of the judge. The referee shall qualify in the same manner as other civil officers, except that the referee need not be a qualified elector of the county, and the duties and powers of the referee in the conduct of trials in the small claims court are governed by the provisions of rule 53(c) of the North Dakota Rules of Civil Procedure insofar as those provisions are not in conflict with the provisions of this chapter. The referee appointed must be a person versed in the law. The presiding judge shall determine the salary or fee of the referee, within the limits of legislative appropriations.

Source:

S.L. 1971, ch. 303, § 8; 1981, ch. 320, § 55; 1987, ch. 377, § 1; 1991, ch. 326, § 93.

CHAPTER 27-08.2 County Judicial Coordinating Councils [Repealed]

[Repealed by S.L. 1991, ch. 326, § 203]

CHAPTER 27-09 Jurors [Repealed]

[Repealed by S.L. 1971, ch. 304, § 23]

Note.

For present provisions, see chapter 27-09.1.

CHAPTER 27-09.1 Uniform Jury Selection and Service Act

27-09.1-01. Legislative intent.

The legislative assembly of the state of North Dakota hereby declares that it is the policy of this state that all persons selected for jury service be selected at random from a fair cross section of the population of the area served by the court, and that all qualified citizens have the opportunity in accordance with this chapter to be considered for jury service in this state and an obligation to serve as jurors when summoned for that purpose.

Source:

S.L. 1971, ch. 304, § 3.

Cross-References.

Jury selection procedure, see Administrative Rule 9, North Dakota Court Rules Annotated.

Comparative Legislation.

Jurisdictions which have enacted the Uniform Jury Selection and Service Act include:

Hawaii Rev. Stat., §§ 612-1 to 612-27.

Idaho Code §§ 2-201 to 2-221.

Ind. Code §§ 33-4-5.5-1 to 33-4-5.5-22.

Me. Rev. Stat. Ann. tit. 14, § 1211 et seq.

Miss. Code Ann. § 13-5-2 et seq.

27-09.1-02. Discrimination prohibited.

A citizen may not be excluded from jury service in this state on account of race, color, religion, sex, national origin, physical disability, or economic status.

Source:

S.L. 1971, ch. 304, § 2; 1985, ch. 341, § 1.

Cross-References.

Qualifications of electors, see N.D. Const., Art. II, § 12.

Notes to Decisions

Minority Groups.

Assertions that jury source lists other than voters and licensed drivers, like phone books, would be more representative and increase the very slight chance of having a black person selected for a jury venire were insufficient to show underrepresentation or systematic exclusion of a minority group from jury selection. State v. Marshall, 531 N.W.2d 284, 1995 N.D. LEXIS 81 (N.D. 1995).

DECISIONS UNDER PRIOR LAW

Women Jurors.

Chapter 81, S.L. 1921, making women eligible to serve as jurors, did not violate section 7 of the state constitution of 1889 nor the fourteenth amendment of the federal constitution.STATE v. NORTON, 64 N.D. 675, 255 N.W. 787, 1934 N.D. LEXIS 251 (N.D. 1934).

Collateral References.

Failure of juror in criminal case to disclose his previous jury service within disqualifying period as ground for reversal, 13 A.L.R.2d 1482.

Racial, religious, economic, social, or political prejudice of opposed juror as ground of challenge on voir dire in criminal case, 54 A.L.R.2d 1204.

Beliefs regarding capital punishment as disqualifying juror in capital case for cause, 39 A.L.R.3d 550.

Jury: membership in racially biased or prejudiced organization as proper subject of voir dire inquiry or ground for challenge, 63 A.L.R.3d 1052.

Racial or ethnic prejudice of prospective jurors as proper subject of inquiry or ground of challenge on voir dire in state criminal case, 94 A.L.R.3d 15.

Religious belief, affiliation, or prejudice of prospective juror as proper subject of inquiry or ground for challenge on voir dire, 95 A.L.R.3d 172.

Deafness of juror as ground for impeaching verdict, or securing new trial or reversal on appeal, 38 A.L.R.4th 1170.

Age group underrepresentation in grand jury or petit jury venire, 62 A.L.R.4th 859.

Use of peremptory challenges to exclude persons from criminal jury based on religious affiliation — Post-Batson state cases, 63 A.L.R.5th 375.

Exclusion of women from grand or trial jury or jury panel in criminal case as violation of constitutional rights of accused or as ground for reversal of conviction — state cases, 70 A.L.R.5th 587.

Voir dire examination of prospective jurors under Rule 24(a) of Federal Rules of Criminal Procedure, 28 A.L.R. Fed. 26.

Examination and challenge of federal case jurors on basis of attitudes toward homosexuality, 85 A.L.R. Fed. 864.

Law Reviews.

Summary of North Dakota Supreme Court decisions on Criminal Law, 72 N.D. L. Rev. 792 (1996).

27-09.1-03. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Clerk” and “clerk of court” include any deputy clerk.
  2. “Court” means the district court of this state, and includes, when the context requires, any judge of the court.
  3. “Lists of actual voters” means the official records of persons actually voting in the most recent general election.
  4. “Master list” means the list of actual voters for the county which shall be supplemented with names from other sources prescribed pursuant to this chapter (section 27-09.1-05) in order to foster the policy and protect the rights secured by this chapter (sections 27-09.1-01 and 27-09.1-02).

Source:

S.L. 1971, ch. 304, § 3; 1991, ch. 332, § 1.

27-09.1-04. Jury commission. [Repealed]

Repealed by S.L. 1991, ch. 332, § 9.

27-09.1-05. Master list.

  1. The clerk for each county shall compile and maintain a master list consisting of all lists of actual voters for the county supplemented with names from other lists of persons resident therein, such as lists of utility customers, property taxpayers, motor vehicle registrations, tribal registries if made available by a federally recognized Indian tribe in this state, and driver’s licenses, which the supreme court of this state from time to time designates. In compiling the master list, the clerk shall avoid duplication of names.
  2. Whoever has custody, possession, or control of any of the lists making up or used in compiling the master list, including those designated under subsection 1 by the supreme court as supplementary sources of names, shall make the list available to the clerk for inspection, reproduction, and copying at all reasonable times.
  3. The master list shall be open to the public for examination.

Source:

S.L. 1971, ch. 304, § 5; 1991, ch. 54, § 17; 2019, ch. 254, § 1, effective August 1, 2019.

Notes to Decisions

Compilation.

Where the record showed the jury venire was selected from a master list of names obtained by combining the list of voters in the last general election with a list of licensed drivers, the master list was compiled in compliance with the statute and the jury selection plan designated by the supreme court; the county clerk was not required to supplement the master list with other sources, absent a directive from the supreme court or other compelling justification. State v. Robles, 535 N.W.2d 729, 1995 N.D. LEXIS 129 (N.D. 1995).

Neutrality.

The jury selection procedure under this section, which prohibits exclusion from jury service on the basis of race, is neutral on its face. State v. Robles, 535 N.W.2d 729, 1995 N.D. LEXIS 129 (N.D. 1995).

DECISIONS UNDER PRIOR LAW

Legislative Intent.

The laws relating to the selection of names for a jury list, and the drawing of jurors, were intended to facilitate the selection of a jury and to equalize the burden of jury service. State v. Walla, 57 N.D. 726, 224 N.W. 211, 1929 N.D. LEXIS 320 (N.D. 1929).

Law Reviews.

Summary of North Dakota Supreme Court decisions on Juries, 72 N.D. L. Rev. 815 (1996).

27-09.1-05.1. Selection of jurors from judicial district — Impact of natural disaster — Grounds and method for selection.

The court, upon its own motion or in response to a motion by a party, may direct that prospective jurors be selected from one or more counties in the judicial district in which the court is located if the court determines that the number of prospective jurors within the county of venue is insufficient to obtain an adequate jury pool. Following notification by the court, the clerk of court of any county in the judicial district shall submit a specified number of names, with mailing addresses, of the prospective, qualified jurors to the clerk of court of the county of venue. If a natural disaster impairs the selection of a sufficient number of prospective jurors in any county, the supreme court, by emergency order, may authorize the court in the affected county to obtain additional names and mailing addresses of prospective, qualified jurors from the clerk of court of an adjoining county or from the clerk of court of another county in the judicial district if a sufficient number of names and addresses is not available from the adjoining county.

Source:

S.L. 1997, ch. 264, § 1; 1999, ch. 279, § 1; 1999, ch. 280, § 1; 2005, ch. 278, § 1.

Notes to Decisions

Review.

Defendant’s change of venue motion did not constitute a proper objection to the district court’s use of the statute, and because defendant did not object to the usage of § 27-09.1-05.1, that issue was not properly preserved for appeal. State v. Howard, 2013 ND 184, 838 N.W.2d 416, 2013 N.D. LEXIS 193 (N.D. 2013).

27-09.1-06. Master jury wheel. [Repealed]

Repealed by S.L. 1991, ch. 332, § 9.

27-09.1-07. Juror qualification form.

  1. From time to time and in a manner prescribed by the court, the clerk shall mail to the prospective juror a qualification form accompanied by instructions to fill out and return the form by mail to the clerk within ten days after its receipt. The juror qualification form must be approved by the state court administrator as to matters of form and must elicit the name, address of residence, and age of the prospective juror and whether the prospective juror:
    1. Is a citizen of the United States and a resident of the county;
    2. Is able with reasonable accommodation to communicate and understand the English language;
    3. Has any physical or mental disability that may require reasonable accommodation to render satisfactory jury service; and
    4. Has lost the right to vote because of imprisonment resulting from conviction of a felony (section 27-09.1-08).
  2. Any prospective juror who fails to return a completed juror qualification form as instructed shall be directed by the clerk to appear forthwith before the clerk to fill out the juror qualification form. At the time of the prospective juror’s appearance for jury service, or at the time of any interview before the court or clerk, the prospective juror may be required to fill out another juror qualification form in the presence of the court or clerk, at which time the prospective juror may be questioned, but only with regard to responses to questions contained on the form and grounds for excuse or disqualification. Any information thus acquired by the court or clerk shall be noted on the juror qualification form.
  3. Any person who willfully misrepresents a material fact on a juror qualification form for the purpose of avoiding or securing service as a juror is guilty of a class B misdemeanor.

The juror qualification form must contain the prospective juror’s declaration that the responses are true to the best of the prospective juror’s knowledge and the prospective juror’s acknowledgment that a willful misrepresentation of a material fact may be punished by a fine of not more than one thousand dollars or imprisonment in the county jail for not more than thirty days, or both. Notarization of the juror qualification form is not required. If the prospective juror is unable to fill out the form, another person may do it for the prospective juror and shall indicate that fact and the reason therefor. If it appears there is an omission, ambiguity, or error in a returned form, the clerk shall again send the form with instructions to the prospective juror to make the necessary addition, clarification, or correction and to return the form to the clerk within ten days after its second receipt.

Source:

S.L. 1971, ch. 304, § 7; 1975, ch. 106, § 302; 1985, ch. 341, § 2; 1991, ch. 332, § 3; 1993, ch. 89, § 9; 1993, ch. 320, § 1; 1997, ch. 132, § 2.

DECISIONS UNDER PRIOR LAW

Legislative Intent.

The laws relating to the selection of names for a jury list, and the drawing of jurors, were intended to facilitate the selection of a jury, and to equalize the burden of jury service. State v. Walla, 57 N.D. 726, 224 N.W. 211, 1929 N.D. LEXIS 320 (N.D. 1929).

Presumption.

It is presumed that the statutes were followed in the drawing of the jury for a criminal action. State v. Lee, 78 N.D. 489, 50 N.W.2d 124, 1951 N.D. LEXIS 107 (N.D. 1951).

27-09.1-08. Disqualification from jury service.

  1. The court, upon request of the clerk of court or a prospective juror or on its own initiative, shall determine on the basis of information provided on the juror qualification form or interview with the prospective juror or other competent evidence whether the prospective juror is disqualified for jury service. The clerk shall enter this determination in the space provided on the juror qualification form and as otherwise directed by the state court administrator.
  2. A prospective juror is disqualified to serve on a jury if the prospective juror:
    1. Is not a citizen of the United States and a resident of the state and county in the jury pool;
    2. Is not at least eighteen years old;
    3. Is unable with reasonable accommodation to communicate and understand the English language;
    4. Is incapable, by reason of a physical or mental disability and with reasonable accommodation, of rendering satisfactory jury service, but a person claiming this disqualification may be required to submit a physician’s certificate as to the disability and the certifying physician is subject to inquiry by the court at its discretion; or
    5. Has lost the right to vote because of imprisonment in the penitentiary (section 12.1-33-01) or conviction of a criminal offense which by special provision of law disqualified the prospective juror for such service.

Source:

S.L. 1971, ch. 304, § 8; 1973, ch. 244, § 1; 1975, ch. 106, § 303; 1985, ch. 341, § 3; 1991, ch. 332, § 4; 1993, ch. 320, § 2; 2009, ch. 264, § 1.

Collateral References.

Claustrophobia or other neurosis of juror, 20 A.L.R.3d 1420.

Disqualification of petit juror as having served on grand jury which considered indictment against accused, 24 A.L.R.3d 1236.

Deafness of juror as ground for impeaching verdict, or securing new trial or reversal on appeal, 38 A.L.R.4th 1170.

Jury: visual impairment as disqualification, 48 A.L.R.4th 1154.

Jury: who is lawyer or attorney disqualified or exempt from service, or subject to challenge for cause, 57 A.L.R.4th 1260.

Disqualification or exemption of juror for conviction of, or prosecution for, criminal offense, 75 A.L.R.5th 295.

Prejudicial effect of juror’s inability to comprehend English, 117 A.L.R.5th 1.

27-09.1-09. Summoning of jury panels.

  1. If a grand, petit, or other jury is ordered to be drawn, the clerk thereafter shall cause each person drawn for jury service to be served with a summons either personally or by first-class mail, addressed to the person at that person’s usual residence, business, or post-office address, requiring the person to report for jury service at a specified time and place.
  2. If there is an unanticipated shortage of available petit jurors, the court may require the sheriff to summon a sufficient number of petit jurors selected at random by the clerk in a manner prescribed by the court.
  3. A written procedure by which persons’ names are drawn for jury service must be available for public review. The names of qualified jurors and the contents of jury qualification forms completed by those jurors shall be made available to the public unless the court determines in any instance that this information in the interest of justice should be kept confidential or its use limited in whole or in part.

Source:

S.L. 1971, ch. 304, § 9; 1983, ch. 354, § 1; 1991, ch. 332, § 5.

Notes to Decisions

Jury Selection Process.

Defendant failed to show jury panel selection process was prejudicial, systematically excluded, or statistically excluded a fair cross section of the population where additional prospective jurors were summoned when it became apparent there was an insufficient panel from which to select jurors. State v. Palmer, 2002 ND 5, 638 N.W.2d 18, 2002 N.D. LEXIS 12 (N.D. 2002).

Subsection (2) of this section does not govern when a juror shortage arises at the time of trial; where a trial court clerk, in an attempt to fully seat a jury for defendant’s trial after voir dire was already in progress, telephoned only women who were on the jury wheel that she knew would be at home and not at work, subsection (2) of this section did not apply. State v. Schwab, 2003 ND 119, 665 N.W.2d 52, 2003 N.D. LEXIS 128 (N.D. 2003).

Sealing of Names.

Supreme Court of North Dakota issued a supervisory writ reversing the district court’s order sealing the names of the jurors who sat on a highly publicized murder trial and the district court’s blanket closure of the trial jurors’ questionnaires. Under N.D.C.C. § 27-09.1-09(3), of the Uniform Jury Selection and Service Act, the district court’s rationale for sealing the names of the jurors sitting on the murder trial after the jury was discharged was insufficient to overcome the presumption of public access. Forum Communs. Co. v. Paulson, 2008 ND 140, 752 N.W.2d 177, 2008 N.D. LEXIS 141 (N.D. 2008).

DECISIONS UNDER PRIOR LAW

Adjourned Session.

A special panel of petit jurors may be called for the adjourned session of the term, where regular panel has been discharged at the end of the regular session of the term. State v. Rosencranz, 40 N.D. 93, 168 N.W. 650, 1918 N.D. LEXIS 77 (N.D. 1918).

Special Term.

Jurors may be summoned to try a criminal action at a special term. In re Baker, 8 N.D. 277, 78 N.W. 988, 1899 N.D. LEXIS 5 (N.D. 1899).

Law Reviews.

Forum Communs. Co. v. Paulson, 2008 ND 140, 752 N.W.2d 177, 2008 N.D. LEXIS 141 (N.D. 2008), see 85 N. Dak. L. Rev. 503 (2009).

27-09.1-10. No exemptions.

No qualified prospective juror is exempt from jury service.

Source:

S.L. 1971, ch. 304, § 10.

27-09.1-11. Excuses from jury service.

  1. The court, upon request of a prospective juror or on its own initiative, shall determine on the basis of information provided on the juror qualification form or interview with the prospective juror or other competent evidence whether the prospective juror should be excused from jury service. The clerk shall enter this determination in the space provided on the juror qualification form.
  2. A person who is not disqualified for jury service may be excused from jury service by the court upon a showing of undue hardship, extreme inconvenience, or public necessity, for a period the court deems necessary, at the conclusion of which the person shall reappear for jury service in accordance with the court’s direction.

Source:

S.L. 1971, ch. 304, § 11.

Collateral References.

Exclusion of attorneys from jury list in criminal cases, 32 A.L.R.2d 890.

Juror’s religious belief, 2 A.L.R.3d 1392.

Juror’s belief regarding capital punishment, 39 A.L.R.3d 550.

27-09.1-12. Challenging compliance with selection procedures.

  1. Within seven days after the moving party discovered or by the exercise of diligence could have discovered the grounds therefor, and in any event before the petit jury is sworn to try the case, a party may move to stay the proceedings, and in a criminal case to quash the indictment or information, or for other appropriate relief, on the ground of a substantial failure to comply with this chapter in selecting the grand or petit jury.
  2. Upon motion filed under subsection 1 containing a sworn statement of facts which, if true, would constitute a substantial failure to comply with this chapter, the moving party is entitled to present in support of the motion the testimony of the clerk, any relevant records and papers not public or otherwise available used by the clerk, and any other relevant evidence. If the court determines that in selecting either a grand jury or a petit jury there has been a substantial failure to comply with this chapter, the court shall stay the proceedings pending the selection of the jury in conformity with this chapter, quash an indictment or information, or grant other appropriate relief.
  3. The procedures prescribed by this section are the exclusive means by which a person accused of a crime, the state, or a party in a civil case may challenge a jury on the ground that the jury was not selected in conformity with this chapter.
  4. The contents of any records or papers used by the clerk in connection with the selection process and not made public under this chapter shall not be disclosed, except in connection with the preparation or presentation of a motion under subsection 1, until after all persons selected to serve as jurors have been discharged. The parties in a case may inspect, reproduce, and copy the records or papers at all reasonable times during the preparation and pendency of a motion under subsection 1.

Source:

S.L. 1971, ch. 304, § 12; 1991, ch. 332, § 6.

Notes to Decisions

Exclusive Procedure.

This section is the exclusive means by which one may challenge compliance with chapter 27-09.1. State v. Fredericks, 507 N.W.2d 61, 1993 N.D. LEXIS 193 (N.D. 1993).

Selection Process.

Defendant failed to establish that Burleigh County’s method of summoning jurors from a random jury pool by requiring potential jurors to phone the Clerk’s office between the hours of 1:00 P.M. and 3:00 P.M. was prejudicial or systematically excluded a class of people. State v. Torgerson, 2000 ND 105, 611 N.W.2d 182, 2000 N.D. LEXIS 118 (N.D. 2000).

Defendant’s conviction was affirmed and no substantial failure to comply with this section was established where the defendant failed to present evidence that demonstrated a link between taking jury panels sequentially from the randomized master list and the exclusion of men from the jury panel. State v. Martin, 2000 ND 121, 611 N.W.2d 896, 2000 N.D. LEXIS 129 (N.D. 2000).

27-09.1-13. Preservation of records.

All records and papers compiled and maintained by the clerk in connection with selection and service of jurors shall be preserved by the clerk as ordered by the state court administrator.

Source:

S.L. 1971, ch. 304, § 13; 1981, ch. 323, § 2; 1991, ch. 332, § 7.

27-09.1-14. Mileage and compensation of jurors.

A juror must be paid mileage at the rate provided for state employees in section 54-06-09. A juror must be compensated at the rate of fifty dollars for each day of required attendance at sessions of the district court unless the juror is in attendance for four hours or less on the first day, in which case compensation for the first day is twenty-five dollars. A juror must be compensated at the rate of ten dollars for each day of required attendance at sessions of a coroner’s inquest. The mileage and compensation of jurors must be paid by the state for jurors at sessions of the district court. Jurors at coroner’s inquests must be paid by the county.

Source:

S.L. 1971, ch. 304, § 14; 1977, ch. 266, § 1; 1981, ch. 319, § 43; 1983, ch. 354, § 2; 1991, ch. 326, § 94; 2001, ch. 285, § 1; 2009, ch. 265, § 1.

27-09.1-15. Length of service by jurors.

In any two-year period a person may not be required:

  1. To serve or attend court for prospective service as a petit juror more than ten court days, except if necessary to complete service in a particular case;
  2. To serve on more than one grand jury; or
  3. To serve as both a grand and petit juror.

Source:

S.L. 1971, ch. 304, § 15.

27-09.1-16. Penalties for failure to perform jury service. [Repealed]

Repealed by S.L. 1993, ch. 89, § 32.

27-09.1-17. Protection of jurors’ and witnesses’ employment.

  1. An employer may not deprive an employee of employment, lay off, penalize, threaten, or otherwise coerce an employee with respect thereto, because the employee receives a summons or subpoena, responds thereto, serves as a juror or witness, or attends court for jury service or to give testimony pursuant to a subpoena.
  2. Any employer who violates subsection 1 is guilty of a class B misdemeanor.
  3. If an employer discharges an employee in violation of subsection 1, the employee within ninety days may bring a civil action for recovery of wages lost as a result of the violation and for an order requiring the reinstatement of the employee. Damages recoverable may not exceed lost wages for six weeks. If the employee prevails, the employee must be allowed a reasonable attorney’s fee fixed by the court.

Source:

S.L. 1971, ch. 304, § 17; 1975, ch. 106, § 305; 1987, ch. 378, § 1; 1991, ch. 332, § 8.

Collateral References.

Jurors as within coverage of workers’ compensation acts, 13 A.L.R.5th 444.

Law Reviews.

Note: The Domestic Violence Leave Act: The Need For Victim Workplace Leave On A Federal Level And In North Dakota, 87 N.D. L. Rev. 167 (2011).

27-09.1-18. Court rules.

The supreme court of this state may make and amend rules, not inconsistent with this chapter, regulating the selection and service of jurors.

Source:

S.L. 1971, ch. 304, § 18.

Cross-References.

Supreme court’s rule-making power, see N.D. Const., Art. VI, § 3.

27-09.1-19. Savings clause. [Repealed]

Repealed by S.L. 1983, ch. 82, § 154.

27-09.1-20. Short title.

This chapter may be cited as the Uniform Jury Selection and Service Act.

Source:

S.L. 1971, ch. 304, § 20.

27-09.1-21. District courts and county courts may use each other’s jury panels. [Repealed]

Repealed by S.L. 1991, ch. 326, § 203.

27-09.1-22. When jury panel to attend subsequent term.

A judge of the district court may, by order, require an undischarged jury panel summoned to attend a term of the court to attend any subsequent general, special, or adjourned term of the court not exceeding in all one calendar year.

Source:

S.L. 1971, ch. 304, § 22.

Note.

This section was originally enacted by S.L. 1965, chapter 219, section 2, and, upon repeal of chapter 27-09, was re-enacted by S.L. 1971, chapter 304, section 2, as an addition to the Uniform Jury Selection and Service Act.

CHAPTER 27-10 Contempts

27-10-01. Acts punishable as criminal contempts by courts of record. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

27-10-01.1. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Contempt of court” means:
    1. Intentional misconduct in the presence of the court which interferes with the court proceeding or with the administration of justice, or which impairs the respect due the court;
    2. Intentional nonpayment of a sum of money ordered by the court to be paid in a case when by law execution cannot be awarded for the collection of the sum;
    3. Intentional disobedience, resistance, or obstruction of the authority, process, or order of a court or other officer, including a referee or magistrate;
    4. Intentional refusal of a witness to appear for examination, to be sworn or to affirm, or to testify after being ordered to do so by the court;
    5. Intentional refusal to produce a record, document, or other object after being ordered to do so by the court;
    6. Intentional behavior in derogation of any provision of a summons issued pursuant to rule 8.4 of the North Dakota Rules of Court; or
    7. Any other act or omission specified in the court rules or by law as a ground for contempt of court.
  2. “Court” means a court of record of this state.
  3. “Punitive sanction” includes a sanction of imprisonment if the sentence is for a definite period of time. A sanction requiring payment of a sum of money is punitive if the sanction is not conditioned upon performance or nonperformance of an act, and if the sanction’s purpose is to uphold the authority of the court.
  4. “Remedial sanction” includes a sanction that is conditioned upon performance or nonperformance of an act required by court order. A sanction requiring payment of a sum of money is remedial if the sanction is imposed to compensate a party or complainant, other than the court, for loss or injury suffered as a result of the contempt.

Source:

S.L. 1993, ch. 89, § 10; 1995, ch. 149, § 3.

Note.

Section 5 of chapter 149, S.L. 1995 provides: “Sections 3 and 4 of this Act are contingent on the adoption of the proposed rule 8.4 of the North Dakota Rules of Court by the North Dakota supreme court and become effective on the date the clerk of the supreme court certifies to the legislative council that the rule is in effect.” That certification was made March 1, 1996.

Notes to Decisions

Contempt for Failure to Provide Support.

Where ex-wife sought to have her ex-husband held in contempt of court for failure to pay child support, it would have been “preferable, if not absolutely required” for her to have proceeded under the provisions of this chapter, rather than by motion under N.D.R.Civ.P., Rules 7(b) and 43(e). Klein v. Snider, 253 N.W.2d 425, 1977 N.D. LEXIS 261 (N.D. 1977).

It was not an abuse of discretion to hold a former husband in contempt for failure to pay spousal support because the evidence showed, despite the former husband's retirement, the former husband had funds to pay the obligation and chose to direct the funds elsewhere. Peterson v. Peterson, 2016 ND 157, 883 N.W.2d 449, 2016 N.D. LEXIS 157 (N.D. 2016).

Disobedience of Orders.
—Divorce Proceedings.

Finding the father in contempt was not error where he had frustrated parenting time and failed to properly communicate with the mother. Upton v. Nolan, 2018 ND 243, 919 N.W.2d 181, 2018 N.D. LEXIS 249 (N.D. 2018).

District court did not abuse its discretion in denying the husband’s request to hold the wife in contempt of court for violating the parties’ divorce judgment; the district court found that the wife’s actions in clearing title and protecting the parties from a deficiency judgment were reasonable under the divorce judgment, and even if the court agreed that the wife violated the judgment, the court would not overturn the district court as it did not act in an arbitrary manner and did not misapply the law. Cook v. Cook, 2020 ND 11, 937 N.W.2d 286, 2020 N.D. LEXIS 14 (N.D. 2020).

District court did not abuse its discretion in finding a former husband, who was the sole owner of a limited liability company, in contempt of court for violating the provisions of the judgment requiring the husband to execute a security interest and mortgage to encumber property owned by the limited liability company because the husband failed to establish an inability to comply with the judgment. Grengs v. Grengs, 2020 ND 242, 951 N.W.2d 260, 2020 N.D. LEXIS 249 (N.D. 2020).

—In General.

The failure of a party to obey an order that is void for want of authority in the court to issue it is not punishable as contempt. Hodous v. Hodous, 76 N.D. 392, 36 N.W.2d 554, 1949 N.D. LEXIS 63 (N.D. 1949).

Where the court has jurisdiction of the subject matter and the parties, failure of a party to obey an order is punishable as contempt. Hodous v. Hodous, 76 N.D. 392, 36 N.W.2d 554, 1949 N.D. LEXIS 63 (N.D. 1949).

—Divorce Proceedings.

Payments to divorced wife in accordance with express agreement were not enforceable by an attachment for contempt. Glynn v. Glynn, 8 N.D. 233, 77 N.W. 594, 1898 N.D. LEXIS 32 (N.D. 1898).

The statute defining contempt does not include failure to pay maintenance or alimony decreed by a court of competent jurisdiction. Gross v. Gross, 53 N.D. 480, 206 N.W. 793, 1925 N.D. LEXIS 9 (N.D. 1925).

Failure to pay for support of minor children as fixed in a final judgment of divorce is contempt. Gross v. Gross, 53 N.D. 480, 206 N.W. 793, 1925 N.D. LEXIS 9 (N.D. 1925); Raszler v. Raszler, 80 N.W.2d 535, 1956 N.D. LEXIS 169 (N.D. 1956).

Failure of husband to make monthly payments for maintenance and support of divorced wife pursuant to decree of divorce was not contempt where he had been unemployed for a long time and had no means whereby he could make payment. State v. Babcock, 64 N.D. 288, 251 N.W. 849, 1933 N.D. LEXIS 275 (N.D. 1933).

Wife’s failure to pay alimony to husband as required by decree of divorce was contempt. Gaschk v. Kohler, 70 N.D. 358, 294 N.W. 441, 1940 N.D. LEXIS 179 (N.D. 1940).

Ignoring of order requiring payment as temporary alimony and suit money of three different amounts, which was erroneous with respect to one of these amounts, but valid and proper as to the other two, was civil contempt. Hodous v. Hodous, 76 N.D. 392, 36 N.W.2d 554, 1949 N.D. LEXIS 63 (N.D. 1949).

Civil contempt proceedings were appropriate for enforcing payment of court-ordered alimony, without first exhausting other remedies for collection of money judgment. Thorlakson v. Wells, 207 N.W.2d 326, 1973 N.D. LEXIS 158 (N.D. 1973).

Trial court acted improperly in using its contempt powers to enforce the payment of funds under a property settlement where the payment did not involve alimony or support payments. Dvorak v. Dvorak, 329 N.W.2d 868, 1983 N.D. LEXIS 231 (N.D. 1983).

Trial court did not abuse its discretion by issuing an order of contempt where evidence supported a finding that the husband willfully and inexcusably violated the trial court’s interim order by intercepting rent checks that had been awarded to the wife as a part of the divorce proceedings. Mellum v. Mellum, 2000 ND 47, 607 N.W.2d 580, 2000 N.D. LEXIS 52 (N.D. 2000).

Trial court did not abuse its discretion in holding father in contempt of court and in imposing a $5,000 remedial sanction where the father did not comply with the orders of the divorce decree and more than a year had passed since the decree had been entered. Harger v. Harger, 2002 ND 76, 644 N.W.2d 182, 2002 N.D. LEXIS 94 (N.D. 2002).

Where on a former wife’s motion her former husband was found in contempt for failing to comply with the property distribution portion of the divorce judgment, the contempt order which included a money judgment for the amount owed under the judgment and a writ of attachment, stayed for a set time to allow the husband to purge himself of his contempt, constituted remedial contempt. Peters-Riemers v. Riemers, 2003 ND 96, 663 N.W.2d 657, 2003 N.D. LEXIS 107 (N.D. 2003).

Because an ex-wife admitted denying an ex-husband’s court-ordered visitation, provided for in an amended divorce judgment, with their children and the ex-wife failed to demonstrate that a visitation environment that might have included the ex-husband’s new wife endangered the children’s physical or emotional health, it was not an abuse of discretion to find the ex-wife in contempt, N.D.C.C. § 27-10-01.1(1)(c), or to order the ex-wife to undergo a parental alienation and psychological evaluation. Woodward v. Woodward, 2009 ND 214, 776 N.W.2d 567, 2009 N.D. LEXIS 225 (N.D. 2009).

Trial court had the authority to find the former husband in contempt of court under N.D.C.C. § 27-10-01.1(1)(c) for the husband’s conduct in a divorce proceeding with the former wife. The former husband intentionally paid less than the amount of money the former wife was owed and that was set forth in an amended divorce judgment and deliberately kept the former wife from receiving what was rightfully owed. Nuveen v. Nuveen, 2012 ND 182, 820 N.W.2d 726, 2012 N.D. LEXIS 185 (N.D. 2012).

District court abused its discretion in holding a father in contempt because a mother did not allege that any of the provisions of N.D.C.C. ch. 28-21 governing execution and levy were violated, and the circumstances did not amount to an intentional disobedience of a court order under N.D.C.C. § 27-10-01.1(1)(c); a district court order merely denied the father’s request for an equitable offset of the parties’ mutual obligations and did not declare that the father was prohibited from using any other available remedies to enforce the mother’s child support obligation. Jordet v. Jordet, 2012 ND 231, 823 N.W.2d 512, 2012 N.D. LEXIS 241 (N.D. 2012).

District court did not abuse its discretion in finding a former husband in contempt and in imposing remedial sanctions against him because the husband violated court ordered parenting time with the parties' children and did not pay court ordered attorney's fees. Rath v. Rath, 2014 ND 171, 852 N.W.2d 377, 2014 N.D. LEXIS 176 (N.D. 2014).

District court did not abuse its discretion in refusing to find a former wife in contempt of court because the husband did not show that there had been an intent to violate a court order. Rath v. Rath, 2014 ND 171, 852 N.W.2d 377, 2014 N.D. LEXIS 176 (N.D. 2014).

District court went beyond the scope of a former wife’s contempt motions in amending a divorce judgment because its modification of the judgment as a part of its contempt order failed to comport with due process; although neither party moved to amend the divorce judgment, the district court amended, rather than clarified, the judgment, and the hearing notice and hearing itself involved the parties’ competing motions for contempt sanctions. Rath v. Rath, 2014 ND 171, 852 N.W.2d 377, 2014 N.D. LEXIS 176 (N.D. 2014).

It was not an abuse of discretion not to hold a mother in contempt for alleged interference with a father's parenting time because the evidence showed (1) the father did not try to pick the children up for parenting time if the children stated a desire not to go, and (2) the mother encouraged the children to visit with their father but the children refused. Votava v. Votava, 2015 ND 171, 865 N.W.2d 821, 2015 N.D. LEXIS 194 (N.D. 2015).

Contempt order was modified to state that a husband was not in contempt of court for failing to deliver a decal cutter to his wife because the husband could not be held in contempt for failing to deliver the decal cutter; the parties corrected the situation by their stipulation, which required the husband to pay the wife the value of the decal cutter. Werven v. Werven, 2016 ND 60, 877 N.W.2d 9, 2016 N.D. LEXIS 52 (N.D. 2016).

—Estates.

Personal representative was properly held in contempt because he failed to make a court-ordered payment; the estate was not closed when the personal representative filed a verified statement to attempt to effectively amend a final accounting and distribution. An assertion that the estate was unable to make the payment was barred by the law of the case doctrine, res judicata, and collateral estoppel due to a prior decision in the case. Cashmore v. Cashmore (In re Estate of Cashmore), 2013 ND 150, 836 N.W.2d 427, 2013 N.D. LEXIS 148 (N.D. 2013).

—Inability to Comply.

Inability to comply with an order is a defense in a contempt proceeding based upon a violation of the order. State v. Babcock, 64 N.D. 288, 251 N.W. 849, 1933 N.D. LEXIS 275 (N.D. 1933); Hodous v. Hodous, 76 N.D. 392, 36 N.W.2d 554, 1949 N.D. LEXIS 63 (N.D. 1949).

Writ of habeas corpus was denied to husband who was incarcerated for civil contempt for failure to make court-ordered alimony payments, where court found he had sufficient assets to negate his contention of inability to comply. Thorlakson v. Wells, 207 N.W.2d 326, 1973 N.D. LEXIS 158 (N.D. 1973).

—Injunctions.

Violation of injunctional provisions is a civil contempt. Merchant v. Pielke, 9 N.D. 245, 83 N.W. 18, 1900 N.D. LEXIS 229 (N.D. 1900); Northern Pac. Ry. v. Northern Reo Co., 65 N.D. 414, 259 N.W. 95, 1935 N.D. LEXIS 123 (N.D. 1935).

The violation of a preliminary restraining order is contempt. Gunsch v. Gunsch, 69 N.W.2d 739, 1954 N.D. LEXIS 121, 1955 N.D. LEXIS 101 (N.D. 1954).

Distinction Between Civil and Criminal Contempt.

Where, upon conviction for contempt, sanction is imposed to coerce someone into performing some act primarily for another party’s benefit, the contempt should be labeled civil; if the sanction’s purpose is to punish the offender and vindicate judicial authority, the contempt should be called criminal. State v. Stokes, 240 N.W.2d 867, 1976 N.D. LEXIS 219 (N.D. 1976).

Due Process.

Former wife's due process rights were not violated because she received notice of a hearing on an order to show cause as to why she should not have been held in contempt for failing to cooperate with the sale of a residence and a failure to comply with a parenting plan; she could not use her status as a self-represented litigant to ignore the language and allegations in the notice of hearing or the requirement for an evidentiary hearing. Dieterle v. Dieterle, 2016 ND 36, 875 N.W.2d 479, 2016 N.D. LEXIS 32 (N.D. 2016).

district court properly denied a wife’s motion to vacate contempt orders because, while the court abused its discretion in finding the wife in contempt and ordering sanctions on the third order, her motion to vacate and her appeal of the denial therefrom appeared to be an attempt to appeal the first two contempt orders, her arguments relating to due process could have and should have been raised on direct appeal of those orders, and the district court did not deny the wife due process in its issuance of those contempt orders inasmuch as she had notice of and appeared at the hearings preceding the orders and was represented by counsel. Orwig v. Orwig, 2019 ND 78, 924 N.W.2d 421, 2019 N.D. LEXIS 80 (N.D. 2019).

Failure to Pay Child Support.
—In General.

Where defendant was found in contempt of court in a North Dakota proceeding for his failure to pay child support, a subsequent entry of judgment for the entire amount in arrears by a Minnesota court pursuant to the Uniform Reciprocal Enforcement of Support Act did not purge the defendant of the earlier finding of contempt of court. Kitchen v. Kitchen, 304 N.W.2d 694, 1981 N.D. LEXIS 268 (N.D. 1981).

An individual voluntarily in a position whereby he cannot pay his court-ordered child support is in civil contempt of court. Perry v. Perry, 382 N.W.2d 628, 1986 N.D. LEXIS 269 (N.D. 1986).

Civil contempt proceedings for failure to pay court-ordered child support are appropriate for an obligor with the ability to pay. Heidinger v. Heidinger, 426 N.W.2d 566, 1988 N.D. LEXIS 167 (N.D. 1988).

Trial court did not err in finding the husband in contempt of court for failing to pay his court-ordered spousal support because the husband did not establish the “extreme poverty” he argued existed. Krueger v. Krueger, 2013 ND 245, 840 N.W.2d 613, 2013 N.D. LEXIS 248 (N.D. 2013).

District court did not abuse its discretion by holding a husband in contempt for failing to pay spousal support because there was evidence supporting the findings that the husband had funds available to pay spousal support but chose to spend them elsewhere. Werven v. Werven, 2016 ND 60, 877 N.W.2d 9, 2016 N.D. LEXIS 52 (N.D. 2016).

District court did not abuse its discretion in finding a former husband in contempt because the district court explained its rationale for finding the husband in contempt of court and evidence supported its findings and decision; the district court noted that the father was obligated to pay 50 percent of mutually agreeable extracurricular expenses, and it found that the father refused without reasonable and appropriate justification to pay health care expenses. Jacobs-Raak v. Raak, 2020 ND 107, 942 N.W.2d 879, 2020 N.D. LEXIS 98 (N.D. 2020).

—Evidence Insufficient.

Where no document was admitted into evidence showing support payments or arrearage, and no person testified about what support payments contemnor had made or failed to make, the judicial referee, and the trial court in affirming the referee, abused their discretion in determining contemnor was in contempt of court. Mehl v. Mehl, 545 N.W.2d 777, 1996 N.D. LEXIS 105 (N.D. 1996).

Illegal Practice of Law.

The alleged illegal practice of law by one giving legal advice without first having been admitted to practice, and without having paid the license fee, does not fall within the statutory treatment of civil contempt, in the absence of a showing that a civil action or proceeding was pending in the supreme court or any other court. Murphy v. Townley, 67 N.D. 560, 274 N.W. 857, 1937 N.D. LEXIS 113 (N.D. 1937).

Misconduct.

Every court of record may punish as for civil contempt any person guilty of misconduct by which a right or remedy of a party to a civil action may be defeated, impaired, or prejudiced, or for any disturbance to any lawful order, judgment, or process of the court. Gunsch v. Gunsch, 69 N.W.2d 739, 1954 N.D. LEXIS 121, 1955 N.D. LEXIS 101 (N.D. 1954).

Trial court’s finding of contempt and imposition of ten-day incarceration were not an abuse of discretion, where court told contemner to move away from defendant, contemner refused and proceeded to leave, court ordered him not to leave, and, as he continued toward the door, the court placed him in contempt. State v. Zahn, 1997 ND 65, 562 N.W.2d 737, 1997 N.D. LEXIS 77 (N.D. 1997).

District court did not abuse its discretion by finding defendant’s counsel in contempt of court in the presence of the jury because: (1) the district court ordered counsel not to give his personal belief during his closing argument and the order was not transparently invalid or frivolous; (2) after counsel intentionally disregarded the order, the district court found him in contempt; and (3) defendant did not explain how the contempt decision prejudiced the jury against him, as counsel was found in contempt during closing arguments and the decision did not limit the presentation of evidence. State v. Sevigny, 2006 ND 211, 722 N.W.2d 515, 2006 N.D. LEXIS 209 (N.D. 2006).

Intentional, willful, and inexcusable disobedience of a court order constitutes contempt of court under N.D.C.C. § 27-10-01.1(1)(c). Since the trial court failed to hold a hearing before it imposed a remedial sanction against the contemnor for filing more post-trial motions in the trial court after the trial court ordered the contemnor not to do so, a remand of the contemnor’s case to the trial court was required for it to hold a hearing and determine whether the contemnor had committed to such misconduct. Holkesvig v. Welte, 2012 ND 14, 809 N.W.2d 323, 2012 N.D. LEXIS 17 (N.D. 2012).

No Contempt.

Because defendant’s failure to appear was not intentional, the contempt statutes did not authorize the district court’s contempt holding. Blaesing v. Syvertson, 532 N.W.2d 670, 1995 N.D. LEXIS 92 (N.D. 1995).

Former husband in a divorce case did not engage in N.D.C.C. § 27-10-01.1 contempt conduct in not paying the former wife’s dental or vision insurance, as the divorce judgment required him to pay costs associated with maintaining “medical insurance.” However, that same judgment did not specifically mention dental or vision insurance. Sall v. Sall, 2011 ND 202, 804 N.W.2d 378, 2011 N.D. LEXIS 196 (N.D. 2011), cert. denied, 566 U.S. 938, 132 S. Ct. 1918, 182 L. Ed. 2d 773, 2012 U.S. LEXIS 3101 (U.S. 2012).

In a child custody proceeding, the court did not abuse its discretion in denying the husband’s contempt motion because the wife had not frustrated the husband’s parenting time. The court also found that although scheduling changes in the parenting time were made, the husband’s parenting time was not interrupted or disturbed and he clearly received his parenting time. Prchal v. Prchal, 2011 ND 62, 795 N.W.2d 693, 2011 N.D. LEXIS 54 (N.D. 2011).

Because the parenting plan provided that the children’s legal residence for school purposes would be with the mother and the mother did not use the transportation to and from school issue to willfully disrupt the father’s parenting time, the district court did not err in denying the father’s motion to hold the mother in contempt under N.D.C.C. § 27-10-01.1(1)(c). Bachmeier v. Bachmeier, 2013 ND 76, 830 N.W.2d 546, 2013 N.D. LEXIS 67 (N.D. 2013).

Trial court did not abuse its discretion in finding the ex-wife was not in contempt because the ex-husband refused to first try to resolve the issue of where the children attended school between themselves without resorting to mediation, as the judgment required. Rath v. Rath, 2013 ND 243, 840 N.W.2d 656, 2013 N.D. LEXIS 244 (N.D. 2013).

Ex-husband did not allege that the ex-wife posted any comments on his Facebook page, and the divorce judgment said nothing about viewing social networking websites, and thus his argument that the ex-wife should have been found in contempt for viewing the ex-husband’s Facebook page was without merit. Rath v. Rath, 2013 ND 243, 840 N.W.2d 656, 2013 N.D. LEXIS 244 (N.D. 2013).

Court disagreed that one provision in the divorce judgment about out-of-state trips with the children was ambiguous, but even assuming the ex-husband did not grant permission for the trip, this did not mandate a finding that the ex-wife committed contempt; the district court did not abuse its discretion in refusing to find the ex-wife in contempt for her alleged technical violation of the divorce judgment. Rath v. Rath, 2013 ND 243, 840 N.W.2d 656, 2013 N.D. LEXIS 244 (N.D. 2013).

Denial of a motion to find the ex-wife in contempt was affirmed where the children testified that they did not want to visit their father, and nothing in the record suggested that the ex-wife had intentionally kept the child from visiting the ex-husband. Lind v. Lind, 2014 ND 70, 844 N.W.2d 907, 2014 N.D. LEXIS 72 (N.D. 2014).

Trial court did not abuse its discretion in denying a husband’s petition to find the wife in contempt of court because her claim that she could afford to pay the husband for expenses while the parties were living together was supported by the evidence. Nieuwenhuis v. Nieuwenhuis, 2014 ND 145, 851 N.W.2d 130, 2014 N.D. LEXIS 152 (N.D. 2014).

District court did not abuse its discretion in denying a father's contempt motions because although the father disagreed with the district court's findings and conclusions, it found no credible evidence established the mother intentionally violated the terms of the judgment. Rath v. Rath, 2016 ND 46, 876 N.W.2d 474, 2016 N.D. LEXIS 46 (N.D. 2016).

District court did not abuse its discretion when it determined a wife was not in contempt because the wife's efforts to reschedule phone calls did not amount to contempt and an order to show cause was unnecessary; even if the rescheduling did constitute a failure to follow the judgment, technical violations of a court order did not necessarily require a finding of contempt. Rath v. Rath, 2016 ND 83, 878 N.W.2d 85, 2016 N.D. LEXIS 82 (N.D. 2016).

District court properly denied a father's motions for recusal, for change of judge in child support modification proceedings, to hold the mother in contempt of the divorce judgment, and to reconsider because the father waived his issues on appeal regarding recusal, the orders denying his demands for change of judge were interlocutory and not appealable, the father's relentless filing of meritless motions was clearly for purposes of harassing the mother, the court thoroughly explained its reasons for refusing to hold the mother in contempt, and the father failed to establish any contempt on the part of the mother. Rath v. Rath, 2017 ND 128, 895 N.W.2d 306, 2017 N.D. LEXIS 129 (N.D. 2017).

District court erred by ordering the ex-wife to reimburse the ex-husband for the transportation costs associated with his missed parenting time because the district court found there was not sufficient evidence to find the wife in contempt for failing to ensure the children were on a flight so the husband could exercise his parenting time in California as the children snuck off the flight on their own accord. Sims v. Sims, 2020 ND 110, 943 N.W.2d 804, 2020 N.D. LEXIS 125 (N.D. 2020).

District court did not err in refraining from conducting contempt proceedings because, while a father's motions for an order to show cause and relief from judgment were repetitive, without merit, and frivolous the court warned the father that if he continued to file similar motions, it would sanction him in the future where the child's right to receive mail and gifts from a parent without obstruction or interference by the other was not a right of the parent and the father should not have attempted to send a cell phone to the child when he knew it was against the mother's wishes despite his difficulty in conducting telephone conversations with his children. Rath v. Rath, 2016 ND 105, 879 N.W.2d 735, 2016 N.D. LEXIS 107 (N.D. 2016).

Notice of Judgment.

Service of an improper notice of judgment by mailing it to the defendant’s attorney is not valid notice and actual notice of the judgment must be shown before the defendant will be held in contempt. Svihla v. Svihla, 126 N.W.2d 135, 1964 N.D. LEXIS 80 (N.D. 1964).

Procedure.

The most common classifications of contempt are criminal and civil. Both criminal and civil contempt can be direct and punishable summarily, or indirect and punishable only after notice and an appropriate hearing. Hartman v. Hartman, 417 N.W.2d 173, 1987 N.D. LEXIS 456 (N.D. 1987).

When considering an alleged contempt under N.D.C.C. § 27-10-01.1 et seq., the trial court was obligated to apply the appropriate procedures before imposing a sanction. Since the trial court in the contemnor’s case did not grant the contemnor the hearing to which the contemnor was entitled under N.D.C.C. § 27-10-01.3 before the trial court imposed a remedial sanction for the contemnor continuing to file post-trial motions in the trial court when the trial court had ordered the contemnor not to do so, the judgment imposing the remedial sanction had to be reversed and the appropriate hearing had to held. Holkesvig v. Welte, 2012 ND 14, 809 N.W.2d 323, 2012 N.D. LEXIS 17 (N.D. 2012).

Punitive Sanctions.
—Justified.

Judge’s order of contempt and punitive sanction were justified where defendant’s comments and conduct directed at the jurors were depicted by the trial court as an “outburst,” in which defendant made disparaging comments in a loud, angry voice to the jurors. City of Grand Forks v. Dohman, 552 N.W.2d 69, 1996 N.D. LEXIS 185 (N.D. 1996).

Refusal to Testify.

Court did not abuse its discretion in charging witness with contempt for refusing to testify, because witness had right to invoke the privilege against self-incrimination with respect to particular questions and not a blanket constitutional right not to testify. State v. Zahn, 1997 ND 65, 562 N.W.2d 737, 1997 N.D. LEXIS 77 (N.D. 1997).

Remedial Sanction.

District court did not err when it found that a former partner was in contempt of the court’s amended judgment because he engaged in business activities similar to those of the former partnership, from which he had been restrained for three years, nor did the court err when it assessed, as a contempt sanction, 5% of the amount the former partner had been paid for his share of the partnership and attorney fees and costs. Johnson v. Gehringer, 2006 ND 157, 717 N.W.2d 920, 2006 N.D. LEXIS 160 (N.D. 2006).

District court did not abuse its discretion in finding the mother in contempt and awarding the father 50 percent of his attorney's fees as a sanction where the father's testimony was found more credible as to the mother and her fiance's efforts to cooperate. Booen v. Appel, 2017 ND 189, 899 N.W.2d 648, 2017 N.D. LEXIS 198 (N.D. 2017).

As a remedial sanction, the sanction of imprisonment to ensure compliance with a previous order of the court is by definition conditioned on performance of an act required by a court order; because it is conditional, every remedial sanction of imprisonment is designed to ensure compliance with a previous order. Nygaard v. Taylor, 2017 ND 206, 900 N.W.2d 833, 2017 N.D. LEXIS 210 (N.D. 2017).

Judicial referee erred in denying a mother's motions for immediate release from incarceration because its orders and the district court's orders on request for review did not contain an express finding that imprisonment for six months under subsection (1)(b) would be ineffectual to terminate the mother's continuing contempt; without that finding, the mother could not be imprisoned for more than six months under the most recent contempt orders. Nygaard v. Taylor, 2017 ND 206, 900 N.W.2d 833, 2017 N.D. LEXIS 210 (N.D. 2017).

Scope of Contempt Power.

This section does not contemplate use of contempt as a remedy for past statutory violations. Van Dyke v. Van Dyke, 538 N.W.2d 197, 1995 N.D. LEXIS 173 (N.D. 1995).

Although contempt powers are inherent to courts, the legislature may limit the categories to which contempt orders may apply. Van Dyke v. Van Dyke, 538 N.W.2d 197, 1995 N.D. LEXIS 173 (N.D. 1995).

Ex-husband argued that allowing the ex-wife to terminate inappropriate phone calls impermissibly gave her discretion to decide if he was in contempt, but terminating an inappropriate phone call is not an exercise of judicial adjudicatory contempt powers, and this argument was without merit. Rath v. Rath, 2013 ND 243, 840 N.W.2d 656, 2013 N.D. LEXIS 244 (N.D. 2013).

Unilaterally Setting Hearing Date.

District court abused its discretion by ordering counsel to pay $100 in attorney’s fees to opposing counsel for unilaterally setting a hearing date; attorney’s conduct did not fit within any of the definitions of contempt in N.D.C.C. 27-10-01.1. Krizan v. Krizan, 1998 ND 186, 585 N.W.2d 576, 1998 N.D. LEXIS 196 (N.D. 1998).

Warning.

Contemner’s statement he intended to leave courtroom after court ordered him not to leave and his conduct indicating he was leaving were clearly contemptuous, without requiring prior warning before he was found in contempt. State v. Zahn, 1997 ND 65, 562 N.W.2d 737, 1997 N.D. LEXIS 77 (N.D. 1997).

Collateral References.

Right to punish for contempt for failure to obey court order or decree either beyond power or jurisdiction of court or merely erroneous, 12 A.L.R.2d 1059.

Right of witness in contempt proceeding to refuse to answer on ground of self-incrimination, as to membership in or connection with party, society, or similar organization or group, 19 A.L.R.2d 388.

Necessity of affidavit or sworn statement as foundation for constructive contempt, 41 A.L.R.2d 1263.

Pleading in contempt proceedings as to ability to comply with order for payment of alimony or child support, 53 A.L.R.2d 591.

Allowance of attorney’s fees as punishment in contempt proceedings, 55 A.L.R.2d 979.

Allowance of attorneys’ fees in civil contempt proceedings, 43 A.L.R.3d 793.

Who may institute civil contempt proceedings, 61 A.L.R.2d 1083.

Contempt based on violation of court order where another court has issued contrary order, 36 A.L.R.4th 978.

Disqualification of judge in state proceedings to punish contempt against or involving himself in open court and in his actual presence, 37 A.L.R.4th 1004.

Intoxication of witness or attorney as contempt of court, 46 A.L.R.4th 238.

Abuse or misuse of contempt power as ground for removal or discipline of judge, 76 A.L.R.4th 982.

Contempt: state court’s power to order indefinite coercive fine or imprisonment to exact promise of future compliance with court’s order — anticipatory contempt, 81 A.L.R.4th 1008.

Right to appointment of counsel in contempt proceedings, 32 A.L.R.5th 31.

Holding jurors in contempt under state law, 93 A.L.R.5th 493.

Law Reviews.

North Dakota’s New Contempt Law: Will It Mean Order in the Court?, 70 N.D. L. Rev. 1027 (1994).

27-10-01.2. Power of court to punish for contempt of court.

  1. A court of record of this state may impose a remedial or punitive sanction for contempt of court under this chapter.
  2. Upon the trial of an action or issue by a referee appointed by the court, the commission of any offense that constitutes contempt of court must be deemed contempt of the court appointing the referee, and the offense may be punished by the court in the manner and upon the proceedings in this chapter provided, except that the offense may be presented to the court by a report of the referee instead of by affidavit.

Source:

S.L. 1993, ch. 89, § 11.

Notes to Decisions

Counsel in Contempt.

Finding counsel in contempt is not a denial of the right to a fair trial when such finding is not made in the hearing of the jury. Regent Coop. Equity Exch. v. Johnston’s Fuel Liners, 122 N.W.2d 151 (N.D. 1963), decided prior to the enactment of N.D.C.C. § 26-40.1-08.

Disparaging Comments Directed at Jurors.

Jurors have the right to expect that the judge presiding at the trial will prevent verbal attacks by a lawyer, a party, or other participants in the trial. In fulfilling that obligation to the jurors, the judge may impose punitive sanctions for disparaging comments directed at jurors following the announcement of their verdict. City of Grand Forks v. Dohman, 552 N.W.2d 69, 1996 N.D. LEXIS 185 (N.D. 1996).

Immunity.

Unless granted immunity as comprehensive as the privilege against self-incrimination, a witness cannot be held in contempt for properly exercising the privilege. Grajedas by & Through Takes the Horse v. Holum (In re Grajedas), 515 N.W.2d 444, 1994 N.D. LEXIS 93 (N.D. 1994).

No contempt.

District court did not abuse its discretion when it determined a wife was not in contempt because the wife's efforts to reschedule phone calls did not amount to contempt and an order to show cause was unnecessary; even if the rescheduling did constitute a failure to follow the judgment, technical violations of a court order did not necessarily require a finding of contempt. Rath v. Rath, 2016 ND 83, 878 N.W.2d 85, 2016 N.D. LEXIS 82 (N.D. 2016).

Remedial Sanctions.

Requiring ex-husband to post a bond to be divided between two court-appointed guardians ad litem was a proper remedial sanction intended to compensate the guardians for the losses they incurred as a result of the ex-husband’s willful failure to comply with the divorce judgment ordering him to pay one-half of the guardian ad litem fees. Flattum-Riemers v. Flattum-Riemers, 1999 ND 146, 598 N.W.2d 499, 1999 N.D. LEXIS 174 (N.D. 1999).

District court did not err when it found that a former partner was in contempt of the court’s amended judgment because he engaged in business activities similar to those of the former partnership, from which he had been restrained for three years, nor did the court err when it assessed, as a contempt sanction, 5% of the amount the former partner had been paid for his share of the partnership and attorney fees and costs. Johnson v. Gehringer, 2006 ND 157, 717 N.W.2d 920, 2006 N.D. LEXIS 160 (N.D. 2006).

District court did not abuse its discretion in refusing to impose sanctions against the State’s counsel because its findings were sufficient; the district court found that neither the State nor its attorneys made willful misrepresentations of fact in their answer to the claims, the joint answer and defenses asserted were appropriate as allowed by law, and the State had not needlessly increased the cost and length of litigation. Kuntz v. Bureau of Crim. Investigation, 2019 ND 46, 923 N.W.2d 513, 2019 N.D. LEXIS 53 (N.D. 2019).

District court erred, inter alia, in finding a majority member of an LLC in contempt for knowingly making and filing a false affidavit and imposing a sanction requiring a forfeiture of $300,000 to the minority members because, to the extent the sanction was punitive, it was improperly imposed where the sanction was not conditioned upon the performance or nonperformance of an act, the court not provide any link between the sanction and a loss or injury suffered by the minority members as a result of the contempt, and the record was insufficient to determine whether a remedial sanction in the amount ordered was appropriate. Arnold v. Trident Res., LLC, 2020 ND 104, 942 N.W.2d 465, 2020 N.D. LEXIS 105 (N.D. 2020).

27-10-01.3. Nonsummary procedure for remedial and punitive sanctions — Joint hearing and trial — Summary procedure — Appeal.

    1. The court on its own motion or motion of a person aggrieved by contempt of court may seek imposition of a remedial sanction for the contempt by filing a motion for that purpose in the proceeding to which the contempt is related. The court, after notice and hearing, may impose a remedial sanction authorized by this chapter. In a proceeding to impose a remedial sanction for failure to pay child or spousal support, an order to pay support is prima facie evidence the obligor has the ability to pay, and the burden of persuasion is upon the obligor to prove inability to pay the support ordered.
    2. The state’s attorney of a county, the attorney general, or a special prosecutor appointed by the court may seek the imposition of a punitive sanction by issuing a complaint charging a person with contempt of court and reciting the sanction sought to be imposed. The state’s attorney, attorney general, or special prosecutor may initiate issuance of the complaint or may issue the complaint on the request of a party to an action or proceeding in a court or of the judge presiding in an action or proceeding. A judge is disqualified from presiding at the trial of an alleged contemnor if a reasonable likelihood or appearance of bias or prejudice will otherwise exist, if the contempt alleged involves disrespect or criticism of the judge, or if the judge has personal knowledge of disputed evidentiary facts. The person charged is entitled to a trial by jury.
    3. The court may hold a hearing on a motion for a remedial sanction jointly with a trial on a complaint seeking a punitive sanction.
  1. The judge presiding in an action or proceeding may impose a punitive sanction upon a person who commits contempt of court in the actual presence of the court. The judge shall impose the punitive sanction immediately after the contempt of court and only for the purpose of preserving order in the court and protecting the authority and dignity of the court.
  2. An appeal may be taken to the supreme court from any order or judgment finding a person guilty of contempt. An order or judgment finding a person guilty of contempt is a final order or judgment for purposes of appeal.

Source:

S.L. 1993, ch. 89, § 12; 1999, ch. 281, § 1.

Cross-References.

Appeals allowed as provided by law, see N.D. Const., Art. VI, § 6.

Notes to Decisions

Abandonment or Nonsupport of Child.

Under prior law, where father received remedial sanctions for civil contempt of court, the double jeopardy clause did not bar criminal prosecution for abandonment or nonsupport of a child based on the same conduct. State v. Mertz, 514 N.W.2d 662, 1994 N.D. LEXIS 73 (N.D. 1994).

Abuse of Discretion.

Trial court abused its discretion in imposing punitive sanctions for an act of contempt outside the actual presence of the court without following the procedures mandated under this section. Millang v. Hahn, 1998 ND 152, 582 N.W.2d 665, 1998 N.D. LEXIS 162 (N.D. 1998).

Appealable Order.

An appeal is permitted only from the final order, adjudging the accused guilty of contempt. State v. Crum, 7 N.D. 299, 74 N.W. 992, 1898 N.D. LEXIS 59 (N.D. 1898); State ex rel. Morrill v. Massey, 10 N.D. 154, 86 N.W. 225, 1901 N.D. LEXIS 9 (N.D. 1901); State ex rel. Harvey v. Newton, 16 N.D. 151, 112 N.W. 52, 1907 N.D. LEXIS 25 (N.D. 1907).

A final order in a contempt case which adjudges the defendant guilty is appealable. State ex rel. Morrill v. Massey, 10 N.D. 154, 86 N.W. 225, 1901 N.D. LEXIS 9 (N.D. 1901).

An order dismissing an order to show cause why a party should not be held in civil contempt of court is appealable. Johnson v. Johnson, 527 N.W.2d 663, 1995 N.D. LEXIS 19 (N.D. 1995).

North Dakota Supreme Court had jurisdiction over the appeal challenging the contempt order and judgment for sanctions because under N.D.C.C. § 27-10-01.3(3), an order or judgment finding a person guilty of contempt was a final order or judgment for purposes of appeal, and the district court did not abuse its discretion in imposing discovery sanctions, as the order was not vague and the reviewing court was satisfied defendants’ actions were willful and intentional. Dietz v. Kautzman, 2004 ND 164, 686 N.W.2d 110, 2004 N.D. LEXIS 299 (N.D. 2004).

Law firm's appeal of an order to compel was not untimely because (1) the order was not appealable until the firm was held in contempt, and (2) the firm's timely appeal of the contempt order appealed the order to compel. PHI Fin. Servs., Inc. v. Johnston Law Office, P.C., 2016 ND 114, 881 N.W.2d 216, 2016 N.D. LEXIS 114 (N.D. 2016).

Appellate Review.

On appeal, the court determines if the trial court’s order of contempt was remedial or punitive, and whether in issuing the order, the dictates of this section were followed. Endersbe v. Endersbe, 555 N.W.2d 580, 1996 N.D. LEXIS 246 (N.D. 1996).

In the ongoing litigation over the father’s visitation rights, the mother failed to timely appeal the January 2003 contempt order and was, therefore, bound by it. However, her appeal of a March 2004 trial court order finding her in contempt was within the allowed 60 day time-frame and was, therefore, properly before the North Dakota Supreme Court; moreover, the trial court did not abuse its discretion when it held the mother in contempt for her repeated frustration of the father’s visitation rights, and her making unsubstantiated claims of abuse by the father, and the contempt order was remedial, not punitive. Negaard v. Negaard, 2005 ND 96, 696 N.W.2d 498, 2005 N.D. LEXIS 107 (N.D. 2005), overruled in part, Strand v. Cass County, 2008 ND 149, 753 N.W.2d 872, 2008 N.D. LEXIS 150 (N.D. 2008).

Although it was unnecessary for the district court to address the husband's request for contempt, and because the wife's conduct in transferring jointly held marital assets to the parties' son was also considered as part of the husband's claim for equitable relief, the district court's denial of the claim reached the correct result, but for the wrong reason. In re Estate of Albrecht v. Albrecht, 2018 ND 67, 908 N.W.2d 135, 2018 N.D. LEXIS 73 (N.D. 2018).

Supreme court did not have jurisdiction to review an order holding a wife in contempt because her appeal of the contempt order was not filed within 60 days of entry of the order. Rhodenbaugh v. Rhodenbaugh, 2019 ND 109, 925 N.W.2d 742, 2019 N.D. LEXIS 104 (N.D. 2019).

Burden of Proof.

After complainant showed that defendant had committed contemptuous acts, defendant had burden of showing that such acts were legally justified. Thorlakson v. Wells, 207 N.W.2d 326, 1973 N.D. LEXIS 158 (N.D. 1973).

Change of Judge.

A contempt proceeding is neither a civil nor a criminal action, and a change of judges is not allowed. Township of Noble v. Aasen, 10 N.D. 264, 86 N.W. 742, 1901 N.D. LEXIS 32 (N.D. 1901).

Child Support.

Failure to pay child support involves matters occurring outside the immediate view and presence of the court and requires that the procedures for indirect contempt be followed before the imposition of a sanction. Baier v. Hampton, 417 N.W.2d 801, 1987 N.D. LEXIS 460 (N.D. 1987).

Collateral Proceedings.

Where a court did not possess the right or power to punish as for contempt a disregard or violation of its order which it had rendered without jurisdiction over the subject matter or the parties, lack of such jurisdiction or power could be raised by the person charged with contempt in collateral proceedings on appeal from the judgment of conviction for contempt. In re Kramer, 75 N.W.2d 753, 1956 N.D. LEXIS 106 (N.D. 1956).

Conduct Held to be Contempt.
—Disparaging Comments Directed at Jurors.

Jurors have the right to expect that the judge presiding at the trial will prevent verbal attacks by a lawyer, a party, or other participants in the trial. In fulfilling that obligation to the jurors, the judge may impose punitive sanctions for disparaging comments directed at jurors following the announcement of their verdict. City of Grand Forks v. Dohman, 552 N.W.2d 69, 1996 N.D. LEXIS 185 (N.D. 1996).

—Failure to Comply With Court Order.

Since the discovery rules require complete, accurate, and timely compliance, the defendant could be held in contempt for her failure to comply with the court’s order compelling answers to interrogatories. Mid-Dakota Clinic, P.C. v. Kolsrud, 1999 ND 244, 603 N.W.2d 475, 1999 N.D. LEXIS 255 (N.D. 1999).

—Refusal to Testify.

Court did not abuse its discretion in charging witness with contempt for refusing to testify, because witness had right to invoke the privilege against self-incrimination with respect to particular questions and not a blanket constitutional right not to testify. State v. Zahn, 1997 ND 65, 562 N.W.2d 737, 1997 N.D. LEXIS 77 (N.D. 1997).

Conduct Not Amounting to Contempt.

Criminal defendant’s attorney, who called the assistant city attorney approximately 15-30 minutes before time scheduled for hearing on trial de novo and reported that his client had not appeared, stated that therefore the court should consider the matter in default, and thereafter failed to appear at the hearing, was not guilty of civil contempt under this section, because no rights of the state were defeated, impaired, impeded or prejudiced, since it was entitled to a summary affirmance of conviction. State v. Stokes, 243 N.W.2d 372, 1976 N.D. LEXIS 235 (N.D. 1976).

Where the ex-husband alleged that the ex-wife violated various provisions of the amended judgment by publicly demeaning and disrespecting him in front of the children, failing to insulate the children to the greatest extent possible from adult disputes, and failing to use her best efforts to foster a relationship between the children and him, the district court did not abuse its discretion by denying the ex-husband’s motion for contempt because he failed to clearly and satisfactorily show the alleged contempt was committed as his statements in his affidavit about the alleged instances of contempt did not clearly and satisfactorily show that the wife intentionally, willfully and inexcusably violated the judgment. Lessard v. Johnson, 2019 ND 301, 936 N.W.2d 528, 2019 N.D. LEXIS 307 (N.D. 2019).

Dismissal of Appeals for Undue Delay.

Where almost four years had elapsed without effective action to complete appeals resulting from contempt citation and order concerning division of personal property, and no valid excuse was made for such delay, dismissal of appeals for undue delay in prosecution was within sound discretion of court. Obrigewitch v. Obrigewitch, 171 N.W.2d 130, 1969 N.D. LEXIS 85 (N.D. 1969).

Due Process.

Former wife's due process rights were not violated because she received notice of a hearing on an order to show cause as to why she should not have been held in contempt for failing to cooperate with the sale of a residence and a failure to comply with a parenting plan; she could not use her status as a self-represented litigant to ignore the language and allegations in the notice of hearing or the requirement for an evidentiary hearing. Dieterle v. Dieterle, 2016 ND 36, 875 N.W.2d 479, 2016 N.D. LEXIS 32 (N.D. 2016).

Evidence.

In a constructive contempt proceeding, interrogatories propounded and proof submitted must be confined to issues, and the evidence of incidental or collateral matters will not be considered. State v. Babcock, 64 N.D. 288, 251 N.W. 849, 1933 N.D. LEXIS 275 (N.D. 1933).

Where a review of the evidence in a contempt case is sought, statement must specify the particulars in which the evidence is alleged to be insufficient to justify the decision. Township of Noble v. Aasen, 10 N.D. 264, 86 N.W. 742, 1901 N.D. LEXIS 32 (N.D. 1901).

The affidavits on which a warrant is issued in contempt proceedings are admissible in evidence on the hearing. State v. Harris, 14 N.D. 501, 105 N.W. 621, 1905 N.D. LEXIS 81 (N.D. 1905).

Judgment Not Required.

A judgment and a notice of entry of judgment are not a prerequisite to an appeal from the issuance of a commitment order in a civil contempt proceeding; this section only uses the term “final order” and provides that it is appealable. Schmidt v. Thompson, 347 N.W.2d 315, 1984 N.D. LEXIS 265 (N.D. 1984).

Order of Conviction.

An order of conviction must embrace a statement of the facts constituting the contempt, and recite that the same occurred in the immediate view and presence of the court, and such order must further set out the punishment which the court inflicts for the offense. State v. Crum, 7 N.D. 299, 74 N.W. 992, 1898 N.D. LEXIS 59 (N.D. 1898).

A judgment of conviction of contempt is void, if the order does not state the facts constituting the offense and recite that the same occurred in the immediate view and presence of the court. State v. Dufek, 49 N.D. 851, 193 N.W. 928, 1922 N.D. LEXIS 7 (N.D. 1922).

Prior Perjury and False Swearing.

Generally, prior perjury and false swearing, although occurring in court and witnessed by a judge, constitute indirect and not direct contempt; extrinsic evidence is necessary to establish the conduct or excusing circumstances, and summary proceedings are inappropriate. Baier v. Hampton, 417 N.W.2d 801, 1987 N.D. LEXIS 460 (N.D. 1987).

Procedure.

If a criminal contempt occurs in open court, and within the personal knowledge and observation of the presiding judge, it can be punished not only summarily, but without the use of either pleadings or evidence, other than the evidence of the justice’s senses. State v. Root, 5 N.D. 487, 67 N.W. 590, 1896 N.D. LEXIS 46 (N.D. 1896).

Both criminal and civil contempt may be direct and punished summarily, or indirect and punished after notice and an appropriate hearing. Baier v. Hampton, 417 N.W.2d 801, 1987 N.D. LEXIS 460 (N.D. 1987).

The most common classifications of contempt are criminal and civil. Both criminal and civil contempt can be direct and punishable summarily, or indirect and punishable only after notice and an appropriate hearing. Hartman v. Hartman, 417 N.W.2d 173, 1987 N.D. LEXIS 456 (N.D. 1987).

Although the trial court, which held appellant in contempt of court, may have repeatedly ordered appellant not to attack any of the parties or other non-party individuals during other hearings, there was no evidence of that in the record prior to the contempt hearing. Appellant did not receive adequate notice and due process requirements were not satisfied. Balvitsch v. Dakota Burger N Fries Corp., 2014 ND 37, 842 N.W.2d 908, 2014 N.D. LEXIS 39 (N.D. 2014).

District court did not comply with the statutory requirements to order the return of a child as a remedial sanction or the procedural requirements for an ex parte interim order where it did not attempt to hold a hearing, either in person or by telephone, before ordering a mother to return the child to North Dakota. Peterson v. Schulz, 2017 ND 155, 896 N.W.2d 916, 2017 N.D. LEXIS 154 (N.D. 2017).

Because defendants consented to the district court’s personal jurisdiction and conceded the district court’s subject matter jurisdiction over the underlying claims, the district court had the authority to order defendant to return leased vehicles to plaintiff and to hold defendant in contempt for failing to comply with the district court’s directive to return the vehicles to plaintiff. Defendants’ arguments about whether the amended order was erroneous, even if correct, did not excuse their noncompliance with the amended order. Kettle Butte Trucking LLC v. Kelly, 2018 ND 110, 910 N.W.2d 882, 2018 N.D. LEXIS 113 (N.D. 2018).

Punitive Sanctions.

The trial court imposed a sanction that was both remedial and punitive which violated subsections (1)(b) and (1)(c) where the court sentenced father to twenty hours of incarceration, with no ability to purge the contempt, and did not initiate the proper proceeding under subsection (1)(b). Endersbe v. Endersbe, 555 N.W.2d 580, 1996 N.D. LEXIS 246 (N.D. 1996).

Trial court’s finding of contempt and imposition of ten-day incarceration was not an abuse of discretion, where court told contemner to move away from defendant, contemner refused and proceeded to leave, court ordered him not to leave, and, as he continued toward the door, the court placed him in contempt. State v. Zahn, 1997 ND 65, 562 N.W.2d 737, 1997 N.D. LEXIS 77 (N.D. 1997).

Although the district court did not comply with the statutory requirements to order the return of a child as a remedial sanction or the procedural requirements for an ex parte interim order, there was no remedy for the violation where the evidence showed that the mother had moved to another state with the child after the father informed her that he was not consenting to the relocation. Peterson v. Schulz, 2017 ND 155, 896 N.W.2d 916, 2017 N.D. LEXIS 154 (N.D. 2017).

Referees Appointed to Conduct Hearing.

District court had authority to appoint a referee to conduct a hearing on civil contempt for failure to make child support payments as ordered in an earlier divorce decree by the district court. Schmidt v. Thompson, 347 N.W.2d 315, 1984 N.D. LEXIS 265 (N.D. 1984).

Remedial Sanction.

When considering an alleged contempt under N.D.C.C. § 27-10-01.1 et seq., the trial court was obligated to apply the appropriate procedures before imposing a sanction. Since the trial court in the contemnor’s case did not grant the contemnor the hearing to which the contemnor was entitled under N.D.C.C. § 27-10-01.3 before the trial court imposed a remedial sanction for the contemnor continuing to file post-trial motions in the trial court when the trial court had ordered the contemnor not to do so, the judgment imposing the remedial sanction had to be reversed and the appropriate hearing had to held. Holkesvig v. Welte, 2012 ND 14, 809 N.W.2d 323, 2012 N.D. LEXIS 17 (N.D. 2012).

Right to Hearing.

Where mother in child support matter filed a motion to hold father in contempt for failure to pay for their child’s uncovered health expenses and father subsequently filed a motion of contempt against the mother, a motion for change of judge and a “Notice of Rule 3.2 Motion”, which requested a hearing on the motion, the trial court erred when it mistakenly found that both parties had not requested hearings on their motions for contempt and found the father in contempt without holding a hearing, although the father had delayed in scheduling the hearing under N.D.R.Ct. 3.2(a) and canceled a hearing that was later scheduled following the order of contempt against him. The court should have observed that father requested a hearing and, in addition, the father was entitled to a hearing under N.D.C.C. § 27-10-01.3(1)(a) on both his and the mother’s motions. The father’s cancellation of the subsequently scheduled hearing did not constitute a waiver of his right, as the father justifiably canceled the hearing believing the district court had ruled and would take no further action. Although there were procedural irregularities on the part of both the father and the court, the father had a right to be heard unless there was some indication the irregularities were designed to mislead the court and, in this case, the actions here by father and the district court appeared to have misled each other unintentionally. Lawrence v. Delkamp, 2006 ND 257, 725 N.W.2d 211, 2006 N.D. LEXIS 263 (N.D. 2006).

In a case involving a request for a change of custody, a father was entitled to a hearing on his contempt motion based on a mother’s failure to comply with a prior court order where nothing in the record showed that the father voluntarily, intentionally, and knowingly waived a hearing. Dietz v. Dietz, 2007 ND 84, 733 N.W.2d 225, 2007 N.D. LEXIS 82 (N.D. 2007).

Court erred in denying the mother’s motion for contempt without holding an evidentiary hearing, because the mother’s motion and brief included a request for a hearing on the motion, and the mother provided notice of her request for a hearing and there was nothing in the record to indicate she waived a hearing on the motion. State v. Leverington, 2012 ND 25, 812 N.W.2d 460, 2012 N.D. LEXIS 32 (N.D. 2012).

—Failure to comply with court order.

Law firm was properly held in contempt for refusing to comply with an order to compel discovery because the firm did not allege the trial court had no jurisdiction to enter the order, so the firm was not free to refuse to comply. PHI Fin. Servs., Inc. v. Johnston Law Office, P.C., 2016 ND 114, 881 N.W.2d 216, 2016 N.D. LEXIS 114 (N.D. 2016).

Collateral References.

Attorney’s argument as to evidence previously ruled inadmissible as contempt, 82 A.L.R.4th 886.

Disqualification of judge for bias against counsel for litigant, 54 A.L.R.5th 575.

27-10-01.4. Remedial sanctions — Punitive sanctions for nonsummary and summary procedure — Past conduct.

  1. A court may impose one or more of the following remedial sanctions:
    1. Payment of a sum of money sufficient to compensate a party or complainant, other than the court, for a loss or injury suffered as a result of the contempt, including an amount to reimburse the party for costs and expenses incurred as a result of the contempt;
    2. Imprisonment if the contempt of court is of a type included in subdivision b, c, d, e, or f of subsection 1 of section 27-10-01.1. The imprisonment may extend for as long as the contemnor continues the contempt or six months, whichever is shorter;
    3. A forfeiture not to exceed two thousand dollars for each day the contempt continues;
    4. An order designed to ensure compliance with a previous order of the court; or
    5. A sanction other than the sanctions specified in subdivisions a through d if the court expressly finds that those sanctions would be ineffectual to terminate a continuing contempt.
    1. A court, after a finding of contempt of court in a nonsummary procedure under subdivision b of subsection 1 of section 27-10-01.3, may impose for each separate contempt of court a fine not exceeding one thousand dollars, imprisonment in the county jail for not more than one year, or both.
    2. A court, after a finding of contempt of court in the summary procedure under subsection 2 of section 27-10-01.3, may impose for each separate contempt of court a fine of not more than five hundred dollars, imprisonment in the county jail for not more than thirty days, or both.
  2. A punitive sanction may be imposed for past conduct that was a contempt of court even though similar present conduct is a continuing contempt of court.

Source:

S.L. 1993, ch. 89, § 13; 1995, ch. 149, § 4.

Note.

Section 5 of chapter 149, S.L. 1995 provides: “Sections 3 and 4 of this Act are contingent on the adoption of the proposed rule 8.4 of the North Dakota Rules of Court by the North Dakota supreme court and become effective on the date the clerk of the supreme court certifies to the legislative council that the rule is in effect.” That certification was made March 1, 1996.

Notes to Decisions

Abuse of Discretion.

District court abused its discretion by ordering counsel to pay $100 in attorney’s fees to opposing counsel for unilaterally setting a hearing date; attorney’s conduct did not fit within any of the definitions of contempt in N.D.C.C. 27-10-01.1. Krizan v. Krizan, 1998 ND 186, 585 N.W.2d 576, 1998 N.D. LEXIS 196 (N.D. 1998).

Because defendants did not cite to any specific error made by the district court, and the district court explained its reasons for imposing attorney fees related to defendants' improper behavior, the award of attorney fees and costs was not an abuse of discretion. Sauter v. Miller, 2018 ND 57, 907 N.W.2d 370, 2018 N.D. LEXIS 58 (N.D. 2018).

Ordering the father to pay his share of travel costs as a remedial sanction was error where the mother’s show cause order did not fairly apprise the father that she was seeking such payment, and although the father had not objected to the travel expense testimony during the hearing, he had not impliedly consented to trial of the issue. Upton v. Nolan, 2018 ND 243, 919 N.W.2d 181, 2018 N.D. LEXIS 249 (N.D. 2018).

Amount of Penalty.

The law does not permit sums of money in amounts arbitrarily fixed by the court to be paid over by one suitor to another under the compulsion of an order of court. Township of Noble v. Aasen, 10 N.D. 264, 86 N.W. 742, 1901 N.D. LEXIS 32 (N.D. 1901).

Where there was an injury and costs and expenses were incurred, as shown by the undisputed evidence, the order requiring the payment of such loss to the plaintiff to indemnify him and to satisfy his costs and expenses instead of imposing a fine upon the accused was authorized by statute. Northern Pac. Ry. v. Northern Reo Co., 65 N.D. 414, 259 N.W. 95, 1935 N.D. LEXIS 123 (N.D. 1935).

Attorney’s Fees.

City was not entitled to attorney’s fees for a property owner’s appeal of an order finding him in contempt because subsection (1)(a) did not apply to attorney’s fees on appeal. State ex rel. City of Marion v. Alber, 2013 ND 189, 838 N.W.2d 458, 2013 N.D. LEXIS 191 (N.D. 2013).

It was not an abuse of discretion for a trial court to award a former wife attorneys fees because a former husband was found in contempt for failing to pay the former wife spousal support. Peterson v. Peterson, 2016 ND 157, 883 N.W.2d 449, 2016 N.D. LEXIS 157 (N.D. 2016).

District court erred in awarding attorney's fees and costs because the court did not separate the attorney's fees and costs for the contempt from the attorney's fees and costs for the modification of parenting time; and the court found that the ex-husband had the ability to pay the ex-wife's costs and fees, but did not make any findings about the ex-wife's need. Harvey v. Harvey, 2016 ND 251, 888 N.W.2d 543, 2016 N.D. LEXIS 249 (N.D. 2016).

District court did not abuse its discretion by ordering the mother to pay the father's attorney fees where he incurred the expenses in seeking a court order to return the child to North Dakota. Peterson v. Schulz, 2017 ND 155, 896 N.W.2d 916, 2017 N.D. LEXIS 154 (N.D. 2017).

Civil and Criminal Contempt Distinguished.

If the sanction’s purpose is coercive, that is, to induce performance of an act primarily for another’s benefit, the contempt is civil; if the contemptuous conduct has been concluded and the purpose of the sanction is to punish the offender and vindicate the authority of the court, the contempt is criminal. Baier v. Hampton, 417 N.W.2d 801, 1987 N.D. LEXIS 460 (N.D. 1987).

In an action for post child support while the husband was found to be in civil contempt and required to serve 60 days in jail, but 30 days could be purged by paying $205 in back support, the label of civil contempt of court was not conclusive. In view of the nature and purpose of the sanctions, husband’s contempt was both civil and criminal. Baier v. Hampton, 417 N.W.2d 801, 1987 N.D. LEXIS 460 (N.D. 1987).

Construing the introductory language of this section to authorize an unconditional jail sentence for civil contempt overlooks the coercive-punitive distinction between civil and criminal contempt; therefore, that language will be construed to prescribe the maximum sanction for civil contempt which may be imposed to coerce performance. Baier v. Hampton, 417 N.W.2d 801, 1987 N.D. LEXIS 460 (N.D. 1987).

Disbarment of Attorney.

A trial for contempt and disbarment in the same action is unauthorized. State v. Root, 5 N.D. 487, 67 N.W. 590, 1896 N.D. LEXIS 46 (N.D. 1896).

Discretion of Trial Court.

A punishment for civil contempt rests in the sound discretion of the trial court, and a fine may be nominal. Red River Valley Brick Corp. v. City of Grand Forks, 27 N.D. 431, 146 N.W. 876, 1914 N.D. LEXIS 58 (N.D. 1914).

Husband’s argument that the district court abused its discretion in awarding attorney fees to the wife was overruled because under N.D.C.C. § 27-10-01.4(1)(a), the district court could impose a remedial sanction for contempt, and there was no abuse of discretion in awarding attorney fees of $500 to the wife for the proceedings before the district court. Giese v. Giese, 2004 ND 58, 676 N.W.2d 794, 2004 N.D. LEXIS 69 (N.D. 2004).

Divorce Proceedings.

Where on a former wife’s motion her former husband was found in contempt for failing to comply with the property distribution portion of the divorce judgment, the contempt order, which included a money judgment for the amount owed under the judgment, and a writ of attachment, stayed for a set time to allow the husband to purge himself of his contempt, constituted remedial contempt. Peters-Riemers v. Riemers, 2003 ND 96, 663 N.W.2d 657, 2003 N.D. LEXIS 107 (N.D. 2003).

In the ongoing litigation over the father’s visitation rights, the mother failed to timely appeal the January 2003 contempt order and was, therefore, bound by it. However, her appeal of a March 2004 trial court order finding her in contempt was within the allowed 60 day time-frame and was, therefore, properly before the North Dakota Supreme Court; moreover, the trial court did not abuse its discretion when it held the mother in contempt for her repeated frustration of the father’s visitation rights, and her making unsubstantiated claims of abuse by the father, and the contempt order was remedial, not punitive. Negaard v. Negaard, 2005 ND 96, 696 N.W.2d 498, 2005 N.D. LEXIS 107 (N.D. 2005), overruled in part, Strand v. Cass County, 2008 ND 149, 753 N.W.2d 872, 2008 N.D. LEXIS 150 (N.D. 2008).

District court did not abuse its discretion in finding a former husband in contempt and in imposing remedial sanctions against him because the husband violated court ordered parenting time with the parties’ children and did not pay court ordered attorney’ fees. Rath v. Rath, 2014 ND 171, 852 N.W.2d 377, 2014 N.D. LEXIS 176 (N.D. 2014).

District court erred by ordering the ex-wife to reimburse the ex-husband for the transportation costs associated with his missed parenting time because the district court found there was not sufficient evidence to find the wife in contempt for failing to ensure the children were on a flight so the husband could exercise his parenting time in California as the children snuck off the flight on their own accord. Sims v. Sims, 2020 ND 110, 943 N.W.2d 804, 2020 N.D. LEXIS 125 (N.D. 2020).

Imprisonment.

Where the misconduct for which a party is held guilty of contempt consists of an omission to perform a duty which is yet in the power of the contemner to perform, he may be imprisoned only until he has performed it and paid any fine imposed by the court. Hodous v. Hodous, 76 N.D. 392, 36 N.W.2d 554, 1949 N.D. LEXIS 63 (N.D. 1949).

Appellant’s sentence of two 30-day terms at state penitentiary for two acts of contempt was reversed and remanded where the district court’s sentencing authority under N.D.C.C. § 27-10-01.4(2)(b) did not include incarceration at the state penitentiary. State v. Bouck, 2001 ND 153, 633 N.W.2d 163, 2001 N.D. LEXIS 163 (N.D. 2001).

Contempt orders fall within the imprisonment remedial sanction under subsection (1)(b) because the district court ordered a mother to be imprisoned until she returned children to their fathers. Nygaard v. Taylor, 2017 ND 206, 900 N.W.2d 833, 2017 N.D. LEXIS 210 (N.D. 2017).

Supreme court exercised its discretion to review an issue raised in a mother's case because the mother had been incarcerated solely for contempt for well over 400 straight days, and the issue raised in the case was a question of first impression and involved a district court's authority to incarcerate persons found to be in contempt of court indefinitely; the issue was one of vital concern regarding matters of important public interest. Nygaard v. Taylor, 2017 ND 206, 900 N.W.2d 833, 2017 N.D. LEXIS 210 (N.D. 2017).

As a remedial sanction, the sanction of imprisonment to ensure compliance with a previous order of the court is by definition conditioned on performance of an act required by a court order; because it is conditional, every remedial sanction of imprisonment is designed to ensure compliance with a previous order. Nygaard v. Taylor, 2017 ND 206, 900 N.W.2d 833, 2017 N.D. LEXIS 210 (N.D. 2017).

Judicial referee erred in denying a mother's motions for immediate release from incarceration because its orders and the district court's orders on request for review did not contain an express finding that imprisonment for six months under subsection (1)(b) would be ineffectual to terminate the mother's continuing contempt; without that finding, the mother could not be imprisoned for more than six months under the most recent contempt orders. Nygaard v. Taylor, 2017 ND 206, 900 N.W.2d 833, 2017 N.D. LEXIS 210 (N.D. 2017).

Punitive Sanction Justified.

Judge’s order of contempt and punitive sanction were justified where defendant’s comments and conduct directed at the jurors were depicted by the trial court as an “outburst,” in which defendant made disparaging comments in a loud, angry voice to the jurors. City of Grand Forks v. Dohman, 552 N.W.2d 69, 1996 N.D. LEXIS 185 (N.D. 1996).

Remedial Sanction Justified.

Where the mother repeatedly frustrated a father’s visitation rights, in order to compensate the father for expenses incurred as a result of the contempt, a sanction was ordered. The sanction for expenses incurred by the father was remedial, as defined under N.D.C.C. § 27-10-01.4(1)(a), and the imposition of same was not an abuse of the court’s discretion. Negaard v. Negaard, 2005 ND 96, 696 N.W.2d 498, 2005 N.D. LEXIS 107 (N.D. 2005), overruled in part, Strand v. Cass County, 2008 ND 149, 753 N.W.2d 872, 2008 N.D. LEXIS 150 (N.D. 2008).

District court did not err when it found that a former partner was in contempt of the court’s amended judgment because he engaged in business activities similar to those of the former partnership, from which he had been restrained for three years, nor did the court err when it assessed, as a contempt sanction, 5% of the amount the former partner had been paid for his share of the partnership and attorney fees and costs. Since repair and installation of furnaces and air conditioning equipment accounted for five percent of the former partnership’s total business, the district court determined it would be appropriate to require the former partner to pay the complaining former partner five percent of the purchase price the complaining former partner paid his former partner for the business upon the dissolution of the partnership. Johnson v. Gehringer, 2006 ND 157, 717 N.W.2d 920, 2006 N.D. LEXIS 160 (N.D. 2006).

Trial court failed to follow the state supreme court’s mandate, on remand in a case where the judgment creditor had obtained an order against the judgment debtor’s mother to pay daily monetary sanctions for not complying with discovery requests, that the trial court determine what part of the sanctions was to compensate the judgment creditor under N.D.C.C. § 27-10-01.4(1)(a) and survived the mother’s death. Accordingly, the trial court needed to make that determination, as all it had done was find that the sanctions had abated upon the mother’s death. Investors Title Ins. Co. v. Herzig, 2013 ND 13, 826 N.W.2d 310, 2013 N.D. LEXIS 3 (N.D. 2013).

District court did not comply with the statutory requirements to order the return of a child as a remedial sanction or the procedural requirements for an ex parte interim order where it did not attempt to hold a hearing, either in person or by telephone, before ordering a mother to return the child to North Dakota. Peterson v. Schulz, 2017 ND 155, 896 N.W.2d 916, 2017 N.D. LEXIS 154 (N.D. 2017).

Self-Executing Order.

A court in this state may not use a self-executing order to delegate to a private party its adjudicatory contempt powers for future violations of that order. Vande Hoven v. Vande Hoven, 399 N.W.2d 855, 1987 N.D. LEXIS 247 (N.D. 1987).

Collateral References.

Right of defendant in criminal contempt proceeding to obtain information by deposition, 33 A.L.R.5th 761.

Law Reviews.

North Dakota Supreme Court Review (Giese v. Giese, 2004 ND 58, 676 N.W.2d 794), see 80 N.D. L. Rev. 547 (2004).

27-10-02. Penalty for criminal contempt. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

27-10-03. Acts punishable as civil contempts. [Repealed]

Repealed by S.L. 1993, ch. 89, § 32.

27-10-04. Penalty for civil contempt — When party injured indemnified instead of fine being imposed. [Repealed]

Repealed by S.L. 1993, ch. 89, § 32.

27-10-05. Corporations subject to fines. [Repealed]

Repealed by S.L. 1993, ch. 89, § 32.

Note.

Section 27-10-05 was amended by the 1993 Legislative Assembly in section 106 of chapter 54, S.L. 1993, and repealed in section 32 of chapter 89, S.L. 1993. The section is treated as repealed.

27-10-06. Contempt committed in presence of judge punishable summarily — Order imposing punishment. [Repealed]

Repealed by S.L. 1993, ch. 89, § 32.

27-10-07. Order to show cause or warrant of attachment for contempt not committed in presence of judge.

In addition to the procedure set out in section 27-10-01.3, when an act punishable as contempt is not committed in the immediate view and presence of the court, the court, upon being satisfied of the commission of the offense, may:

  1. Order the accused to show cause at a specified time and place why the accused should not be punished for the alleged offense; or
  2. Issue a warrant of attachment directed to the sheriff of any county where the accused may be found commanding the sheriff to arrest and bring the accused before the court at a specified time and place to answer for the alleged offense.

Source:

R.C. 1895, § 5936; R.C. 1899, § 5936; R.C. 1905, § 7554; C.L. 1913, § 8182; R.C. 1943, § 27-1007; S.L. 1993, ch. 89, § 14.

Notes to Decisions

Contempt.

District court did not abuse its discretion when it determined a wife was not in contempt because the wife's efforts to reschedule phone calls did not amount to contempt and an order to show cause was unnecessary; even if the rescheduling did constitute a failure to follow the judgment, technical violations of a court order did not necessarily require a finding of contempt. Rath v. Rath, 2016 ND 83, 878 N.W.2d 85, 2016 N.D. LEXIS 82 (N.D. 2016).

District court did not err in denying a husband's motion for an order to show cause before the wife filed a reply because even if the wife filed a reply and admitted all of the husband's allegations, the husband still could not have prevailed since his allegations would not warrant a finding of contempt. Rath v. Rath, 2016 ND 83, 878 N.W.2d 85, 2016 N.D. LEXIS 82 (N.D. 2016).

Due Process.

Former wife's due process rights were not violated because she received notice of a hearing on an order to show cause as to why she should not have been held in contempt for failing to cooperate with the sale of a residence and a failure to comply with a parenting plan; she could not use her status as a self-represented litigant to ignore the language and allegations in the notice of hearing or the requirement for an evidentiary hearing. Dieterle v. Dieterle, 2016 ND 36, 875 N.W.2d 479, 2016 N.D. LEXIS 32 (N.D. 2016).

Hearing Not Required.

When a father sought to hold a mother in contempt, it was not an abuse of discretion to deny the father’s motion without a hearing because (1) the father did not request oral argument, (2) whether to hold a hearing was within the court’s discretion, and, (3) based on the parties’ submissions, the court found the father did not meet the father’s evidentiary burden to support the requested relief. Hoffman v. Jevne, 2019 ND 156, 930 N.W.2d 95, 2019 N.D. LEXIS 155 (N.D. 2019).

Notice.

Personal representative’s argument that he did not get notice that he could have been held in contempt for not making a court-ordered payment was rejected because the stated purpose of a hearing was to show cause why the estate had not been closed, a petition stated that the personal representative failed to make the payment, it was made clear that the refusal to make the payment was the issue, the personal representative did not claim surprise, and he presented no testimony on his behalf. Cashmore v. Cashmore (In re Estate of Cashmore), 2013 ND 150, 836 N.W.2d 427, 2013 N.D. LEXIS 148 (N.D. 2013).

Procedure.

This section is permissive; a court can find someone in contempt without an order to show cause or a warrant of attachment being issued. Van Dyke v. Van Dyke, 538 N.W.2d 197, 1995 N.D. LEXIS 173 (N.D. 1995).

District court did not err in refraining from conducting contempt proceedings because, while a father's motions for an order to show cause and relief from judgment were repetitive, without merit, and frivolous the court warned the father that if he continued to file similar motions, it would sanction him in the future where the child's right to receive mail and gifts from a parent without obstruction or interference by the other was not a right of the parent and the father should not have attempted to send a cell phone to the child when he knew it was against the mother's wishes despite his difficulty in conducting telephone conversations with his children. Rath v. Rath, 2016 ND 105, 879 N.W.2d 735, 2016 N.D. LEXIS 107 (N.D. 2016).

27-10-08. Nature of proceedings upon order to show cause or warrant of attachment for contempt.

An order to show cause issued pursuant to section 27-10-07 may be made in the action or proceeding in or respecting which the offense was committed, either before or after the final judgment or order therein, and is equivalent to a notice of motion. The subsequent proceedings must be taken in the action or proceeding as upon a motion made therein.

Source:

R.C. 1895, § 5937; R.C. 1899, § 5937; R.C. 1905, § 7555; C.L. 1913, § 8183; R.C. 1943, § 27-1008; S.L. 1993, ch. 89, § 15.

Notes to Decisions

Due Process.

Former wife's due process rights were not violated because she received notice of a hearing on an order to show cause as to why she should not have been held in contempt for failing to cooperate with the sale of a residence and a failure to comply with a parenting plan; she could not use her status as a self-represented litigant to ignore the language and allegations in the notice of hearing or the requirement for an evidentiary hearing. Dieterle v. Dieterle, 2016 ND 36, 875 N.W.2d 479, 2016 N.D. LEXIS 32 (N.D. 2016).

27-10-09. Papers to be served on person arrested for contempt.

When a person accused of contempt is arrested under a warrant of attachment, a copy of the warrant and of the affidavit or report of a referee upon which it is issued must be served upon the accused.

Source:

R.C. 1895, § 5938; R.C. 1899, § 5938; R.C. 1905, § 7556; C.L. 1913, § 8184; R.C. 1943, § 27-1009; S.L. 1993, ch. 89, § 16.

Note.

This section superseded for criminal process only by N.D.R.Crim.P., Rule 42.

27-10-10. Amount of undertaking for appearance of accused may be fixed and endorsed on warrant by judge.

When a warrant of attachment of a person accused of contempt is issued, the court, by an endorsement thereon, may fix a sum in which the accused may give an undertaking for the accused’s appearance to answer.

Source:

R.C. 1895, § 5939; R.C. 1899, § 5939; R.C. 1905, § 7557; C.L. 1913, § 8185; R.C. 1943, § 27-1010; S.L. 1993, ch. 89, § 17.

Note.

This section superseded for criminal process only by N.D.R.Crim.P., Rule 42.

27-10-11. Duties of sheriff after arrest if undertaking not given by accused.

When a person accused of contempt is arrested upon a warrant of attachment, the sheriff, if the amount of the undertaking for the appearance of the accused is not endorsed on the warrant, or if such an endorsement is made and an undertaking is not given as prescribed in section 27-10-10, shall keep the accused in custody until the further direction of the court. When from sickness or other cause the accused is physically unable to attend before the court, that fact is a sufficient excuse to the sheriff for not producing the accused as required by the warrant. In that case, the sheriff shall produce the accused as directed by the court after the accused becomes able to attend. The sheriff in any case need not confine the accused in prison or otherwise restrain the accused except so far as is necessary in order to secure the accused’s personal attendance.

Source:

R.C. 1895, § 5940; R.C. 1899, § 5940; R.C. 1905, § 7558; C.L. 1913, § 8186; R.C. 1943, § 27-1011; S.L. 1993, ch. 89, § 18.

Note.

This section superseded for criminal process only by N.D.R.Crim.P., Rule 42.

27-10-12. Accused discharged from arrest on delivering undertaking — Nature of undertaking. [Repealed]

Repealed by S.L. 1993, ch. 89, § 32.

27-10-13. Procedure on return of warrant of attachment or order to show cause for contempt.

When a person accused of contempt is produced by virtue of a warrant of attachment, or appears upon the return of such a warrant or of an order to show cause, the court shall proceed pursuant to subsection 1 of section 27-10-01.3.

Source:

R.C. 1895, § 5942; R.C. 1899, § 5942; R.C. 1905, § 7560; C.L. 1913, § 8188; R.C. 1943, § 27-1013; S.L. 1993, ch. 89, § 19.

Note.

This section superseded for criminal process only by N.D.R.Crim.P., Rule 42.

Notes to Decisions

Complaint.

The recodification of 1943, substituting the words “complaint in the form of an affidavit” for the word “interrogatories” changed only the mechanics of furnishing information from being stated in the form of interrogatories to being stated in the form of a complaint. State v. Simpson, 78 N.D. 360, 49 N.W.2d 777, 1951 N.D. LEXIS 95 (N.D. 1951), disapproved, Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435, 1970 U.S. LEXIS 52 (U.S. 1970).

In proceedings for contempt of court the complaint in the form of an affidavit is sufficient when it states the facts and circumstances so that the defendant has notice thereof and can prepare to meet the charge. Raszler v. Raszler, 80 N.W.2d 535, 1956 N.D. LEXIS 169 (N.D. 1956).

Evidence.

The evidence to prove contempt must be clear and satisfactory and there is no presumption in favor of the regularity of the proceedings and judgment in contempt matters. Svihla v. Svihla, 126 N.W.2d 135, 1964 N.D. LEXIS 80 (N.D. 1964).

Interrogatories.
—Generally.

Interrogatories filed under the old statute in contempt proceedings were required to relate to facts in respect to which the contempt was charged. State v. Harris, 14 N.D. 501, 105 N.W. 621, 1905 N.D. LEXIS 81 (N.D. 1905).

The requirement of the old statute that the court or judge before whom an accused was produced cause interrogatories to be filed, specifying the circumstances of the offense charged, was mandatory. State v. Dufek, 49 N.D. 851, 193 N.W. 928, 1922 N.D. LEXIS 7 (N.D. 1922).

Under the recodification of 1943, which substituted the words “complaint in the form of an affidavit” for the word “interrogatories,” the accused is still given the rights that he had under the old statute of being informed what the charge is and his right to answer. State v. Simpson, 78 N.D. 360, 49 N.W.2d 777, 1951 N.D. LEXIS 95 (N.D. 1951), disapproved, Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435, 1970 U.S. LEXIS 52 (U.S. 1970).

—Constructive Contempt.

In a constructive contempt proceeding, interrogatories propounded and proof submitted must be confined to issues, and the evidence of incidental or collateral matters will not be considered. State v. Babcock, 64 N.D. 288, 251 N.W. 849, 1933 N.D. LEXIS 275 (N.D. 1933).

—Waiver.

The mere silence of the accused should not operate to waive the right secured to him by statute to have the facts and circumstances of the offense charged set out by interrogatories placed on file. The omission is fatal to the conviction. Township of Noble v. Aasen, 10 N.D. 264, 86 N.W. 742, 1901 N.D. LEXIS 32 (N.D. 1901).

Petty Contempt.

Striking teachers, charged with disobedience of permanent restraining order and subject to maximum penalty of fine of not more than $250 and imprisonment in county jail of not more than thirty days, pursuant to former section 27-10-02, were not entitled to jury trial as matter of right since they were charged with petty contempt. State v. Heath, 177 N.W.2d 751, 1970 N.D. LEXIS 116 (N.D. 1970).

Sufficiency of Charge.

The accusation in a criminal contempt case is required to be sufficient, in substance, in order that accused may challenge the sufficiency of the charge against him in matters of law, before being compelled to answer to matters of fact. State v. Root, 5 N.D. 487, 67 N.W. 590, 1896 N.D. LEXIS 46 (N.D. 1896), Township of Noble v. Aasen, 10 N.D. 264, 86 N.W. 742, 1901 N.D. LEXIS 32 (N.D. 1901).

An affidavit is sufficient when it states facts and circumstances so that defendant has notice thereof and can prepare to meet the charge. Raszler v. Raszler, 80 N.W.2d 535, 1956 N.D. LEXIS 169 (N.D. 1956).

Violation of Liquor Law.

The general procedure as laid down in this section is not applicable to contempt proceedings for violation of injunction under prohibitory liquor law. State ex rel. Morrill v. Massey, 10 N.D. 154, 86 N.W. 225, 1901 N.D. LEXIS 9 (N.D. 1901).

Violation of Restraining Order.

Where public schoolteachers violated permanent restraining order by picketing and striking against their school district and remaining unlawfully absent from posts, their conduct was in willful violation of court order and thereby contemptuous, even though peaceable and nonviolent. State v. Heath, 177 N.W.2d 751, 1970 N.D. LEXIS 116 (N.D. 1970).

Witnesses.

The credibility of a witness may not be impeached by inquiring whether or not the witness has been convicted for contempt of court. Mevorah v. Goodman, 79 N.D. 443, 57 N.W.2d 600, 1953 N.D. LEXIS 54 (N.D. 1953).

27-10-14. Order directing punishment of and warrant of commitment of person found guilty of contempt. [Repealed]

Repealed by S.L. 1993, ch. 89, § 32.

27-10-15. Contents of order for punishment and warrant of commitment. [Repealed]

Repealed by S.L. 1993, ch. 89, § 32.

27-10-16. Person imprisoned for contempt may be ordered discharged. [Repealed]

Repealed by S.L. 1993, ch. 89, § 32.

27-10-17. Punishment for contempt no bar to criminal prosecution. [Repealed]

Repealed by S.L. 1993, ch. 89, § 32.

27-10-18. Procedure when person arrested gives undertaking for appearance but fails to appear.

When a person arrested by authority of a warrant of attachment for contempt has given an undertaking as prescribed in this chapter and fails to appear on the return day of the warrant, the court may issue another warrant or may make an order directing the undertaking to be prosecuted, or both.

Source:

R.C. 1895, § 5948; R.C. 1899, § 5948; R.C. 1905, § 7566; C.L. 1913, § 8194; R.C. 1943, § 27-1018; S.L. 1993, ch. 89 § 20.

Note.

This section superseded for criminal process only by N.D.R.Crim.P., Rule 42.

27-10-19. Undertaking may be ordered prosecuted by and in behalf of party aggrieved — Extent of recovery.

An order directing an undertaking given for the appearance of a person accused of contempt to be prosecuted, in the discretion of the court, may direct the prosecution thereof by and in the name of any party aggrieved by the misconduct of the accused. In such a case, the plaintiff may recover damages to the extent of the loss or injury sustained by reason of the misconduct, together with the costs and expenses of prosecuting the proceedings in which the warrant was issued, but the recovery may not exceed the sum specified in the undertaking.

Source:

R.C. 1895, § 5949; R.C. 1899, § 5949; R.C. 1905, § 7567; C.L. 1913, § 8195; R.C. 1943, § 27-1019; S.L. 1993, ch. 89, § 21.

Note.

This section superseded for criminal process only by N.D.R.Crim.P., Rule 42.

27-10-20. When undertaking ordered prosecuted in name of state — Disposition of moneys collected.

In an order for the prosecution of an undertaking given for the appearance of a person accused of contempt, the court, whenever it thinks proper to do so, may, or whenever no party is aggrieved by the misconduct of the person, shall, direct a prosecution to be made in the name of this state by the attorney general or by the state’s attorney of the county in which the undertaking was given. In an action brought pursuant to such direction, the state is entitled to recover the entire sum specified in the undertaking. Out of the money collected, the court which directed the prosecution must order the person at whose instance a warrant was issued to be paid such a sum as it thinks proper to satisfy the costs and expenses incurred by the person and to compensate the person for the loss or injury sustained by reason of the misconduct. The residue of the money must be paid into the treasury of this state to the credit of the school fund.

Source:

R.C. 1895, § 5950; R.C. 1899, § 5950; R.C. 1905, §§ 7568, 7569; C.L. 1913, §§ 8196, 8197; R.C. 1943, § 27-1020; S.L. 1993, ch. 89, § 22.

Note.

This section superseded for criminal process only by N.D.R.Crim.P., Rule 42.

27-10-21. Sheriff liable for insufficient surety — Enforcement of liability. [Repealed]

Repealed by S.L. 1993, ch. 89, § 32.

27-10-22. Procedure to punish contempt before referee. [Repealed]

Repealed by S.L. 1993, ch. 89, § 32.

27-10-23. Contempt of witness before notary public, officer, board, or tribunal.

If a witness fails to attend for examination when duly required to do so, or refuses to be sworn, or to answer as a witness, before a notary public or any other officer, board, or tribunal authorized by law to require the witness’s attendance for examination and to take testimony, the notary public, officer, board, or tribunal shall certify that fact to the judge of the district court of the county in which the witness resides or in which the witness may be present. The judge, by order, then shall require the witness to attend an examination before the judge at a specified time and place. Upon the return day of the order, the examination of the witness must be conducted before the judge, and for the failure of the witness to attend, or to be sworn, or to answer as a witness, or for a refusal of the witness to do any act required of the witness by law, the witness may be punished as for a contempt in the manner provided in this chapter.

Source:

R.C. 1895, § 5953; R.C. 1899, § 5953; R.C. 1905, § 7572; C.L. 1913, § 8200; R.C. 1943, § 27-1023; S.L. 1993, ch. 89, § 23.

Note.

This section superseded for criminal process only by N.D.R.Crim.P., Rule 42.

Notes to Decisions

State Examiner.

An order adjudging a party guilty of contempt of court in refusing to testify before the state examiner in obedience to a subpoena cannot be sustained where the examiner was acting without authority in essaying to compel the party adjudged guilty to testify before him. In re Camp, 7 N.D. 69, 72 N.W. 912, 1897 N.D. LEXIS 42 (N.D. 1897).

27-10-24. Appeal to supreme court from final order adjudging a person guilty of contempt. [Repealed]

Repealed by S.L. 1993, ch. 89, § 32.

27-10-25. Undertaking for stay of execution of order on appeal in criminal contempt. [Repealed]

Repealed by S.L. 1993, ch. 89, § 32.

27-10-26. Undertaking for stay of execution of order on appeal in civil contempts. [Repealed]

Repealed by S.L. 1993, ch. 89, § 32.

27-10-27. Undertaking on appeal in contempt where stay of execution not desired. [Repealed]

Repealed by S.L. 1993, ch. 89, § 32.

CHAPTER 27-11 Admission to Bar

27-11-01. Practicing law and serving on courts of record without certificate of admission and without payment of annual license fee prohibited — Penalty.

Except as otherwise provided by state law or supreme court rule, a person may not practice law, act as an attorney or counselor at law in this state, or commence, conduct, or defend in any court of record of this state, any action or proceeding in which the person is not a party concerned, nor may a person be qualified to serve on a court of record unless that person has:

  1. Secured from the supreme court a certificate of admission to the bar of this state; and
  2. Secured an annual license therefor from the state board of law examiners.

Any person who violates this section is guilty of a class A misdemeanor.

Source:

S.L. 1905, ch. 50, § 7; R.C. 1905, § 494; S.L. 1913, ch. 11, § 4; C.L. 1913, §§ 788, 811; S.L. 1919, ch. 69, § 9; 1923, ch. 134, § 9; 1925 Supp., § 811; S.L. 1933, ch. 143, § 1; 1939, ch. 111, § 1; R.C. 1943, § 27-1101; S.L. 1975, ch. 106, § 311; 1977, ch. 267, § 1; 1983, ch. 346, § 2; 2001, ch. 286, § 1.

Cross-References.

Admission to practice rules, see the North Dakota Court Rules Annotated.

Practice by nonresident attorneys, see N.D.R.Ct. 11.1, North Dakota Court Rules Annotated.

Notes to Decisions

Constitutionality.

This section, as applied to defendant, did not violate his rights of free speech or of assembly, as guaranteed by the North Dakota Constitution and the First and Fourteenth Amendments to the United States Constitution.State v. Niska, 380 N.W.2d 646, 1986 N.D. LEXIS 250 (N.D. 1986).

This section advances compelling state interests, in a manner unrelated to the suppression of ideas, which cannot be achieved by means significantly less restrictive of constitutional rights. State v. Niska, 380 N.W.2d 646, 1986 N.D. LEXIS 250 (N.D. 1986).

District court properly denied a creditor's request for her husband to speak on her behalf because the husband was not a party to the action and was not a licensed attorney; if the wife challenged the statute on its face, she did not complied with N.D. R. App. P. 44, and the district court's application of the statute did not infringe on the husband's right to free speech. Am. Express Centurion Bank v. Corum, 2017 ND 261, 903 N.W.2d 710, 2017 N.D. LEXIS 270 (N.D. 2017).

Party who is not represented by a licensed attorney cannot be represented by another person, including their spouse, in any court of record in the State, absent authorization provided by state law or supreme court rule; the right of free speech does not encompass in-court advocacy by a non-lawyer on behalf of another person, including a spouse. Am. Express Centurion Bank v. Corum, 2017 ND 261, 903 N.W.2d 710, 2017 N.D. LEXIS 270 (N.D. 2017).

Admission Without Taking Exam.

Applicant’s work as a commissioner on Minnesota public utilities commission did not constitute practice of law and did not entitle her, under Admission to Practice Rule 1(c), (see now Admission to Practice Rule 4(A), North Dakota Court Rules Annotated), to be admitted to practice in North Dakota without taking an examination. In re Petition of Sasseville, 336 N.W.2d 624, 1983 N.D. LEXIS 368 (N.D. 1983).

Bar Exams.

Bar examination consisting of essay-type examinations is not invalid per se. Dinger v. State Bar Bd., 312 N.W.2d 15, 1981 N.D. LEXIS 419 (N.D. 1981).

Grading of Examination.

Evidence insufficient to show that grading of bar applicant’s essay examination was arbitrary and capricious. McGinn v. State Bar Bd., 399 N.W.2d 864, 1987 N.D. LEXIS 244 (N.D. 1987).

Illegal Practice of Law.

A person who has no right to practice law directly cannot do so indirectly by employing licensed attorneys to practice for him. Cain v. Merchants Nat'l Bank & Trust Co., 66 N.D. 746, 268 N.W. 719, 1936 N.D. LEXIS 222 (N.D. 1936).

An alleged illegal practice of law is not punishable as contempt of court. Murphy v. Townley, 67 N.D. 560, 274 N.W. 857, 1937 N.D. LEXIS 113 (N.D. 1937).

Trial court dismissed a breach of contract case filed by plaintiffs, the buyer and his business partner, against defendant seller, because plaintiff failed to present proof of their alleged partnership. The trial court was concerned that plaintiff partner’s appearance and his admitted sharing of pleadings with the buyer constituted the unauthorized practice of law under N.D.C.C. § 27-11-01. Zink v. Enzminger Steel, LLC, 2011 ND 122, 798 N.W.2d 863, 2011 N.D. LEXIS 110 (N.D. 2011).

Inmates.

Where prison inmate apparently sought to maintain a class action, he was prevented by failure to comply with N.D.R.Civ.P., Rule 23, relating to class actions, because a pro se plaintiff may not represent others and inmates cannot bring claims on behalf of other prisoners. Ennis v. Dasovick, 506 N.W.2d 386, 1993 N.D. LEXIS 168 (N.D. 1993).

Lay Representation.

To permit a lay person to represent a criminal defendant would sanction the unauthorized practice of law, which the statutes of North Dakota expressly prohibit. State v. Benson, 376 N.W.2d 36, 1985 N.D. LEXIS 460 (N.D. 1985).

The trial court properly refused to permit a lay person to represent defendant in a misdemeanor prosecution. State v. Benson, 376 N.W.2d 36, 1985 N.D. LEXIS 460 (N.D. 1985).

Liberal Construction.

The statutory prohibition against the unauthorized practice of law is intended to protect the public from unlicensed attorneys and is to be liberally construed with a view to effecting its objects and promoting justice. Ranta v. McCarney, 391 N.W.2d 161, 1986 N.D. LEXIS 371 (N.D. 1986).

“Practice of Law” Defined.

The “practice of law” is not limited to preparation of cases and their conduct in court, but includes legal advice and counsel and drawing of instruments when such instruments set forth, limit, terminate, claim, or grant legal rights. Cain v. Merchants Nat'l Bank & Trust Co., 66 N.D. 746, 268 N.W. 719, 1936 N.D. LEXIS 222 (N.D. 1936).

Although what constitutes the practice of law does not lend itself to an inclusive definition, it clearly includes drafting legal instruments and pleadings and providing legal advice. State v. Niska, 380 N.W.2d 646, 1986 N.D. LEXIS 250 (N.D. 1986).

Recovery by Out-of-State Attorney.

An out-of-state attorney who is not licensed to practice law in this state cannot recover compensation for services rendered in this state, unless he falls within a recognized exception to the general rule. Ranta v. McCarney, 391 N.W.2d 161, 1986 N.D. LEXIS 371 (N.D. 1986).

Unauthorized Practice by Business.

Business’s restraining order against the customer was vacated because the business was never represented by an attorney, and its petition was void from the beginning, when the matter was commenced on behalf of the business by a non-attorney agent, the business’s manager. A corporation may not be represented by a non-attorney agent in a legal proceeding. Wetzel v. Schlenvogt, 2005 ND 190, 705 N.W.2d 836, 2005 N.D. LEXIS 230 (N.D. 2005).

Collateral References.

Services in connection with tax matters as practice of law, 9 A.L.R.2d 797.

Drafting or filling in blanks in printed forms of instruments relating to land by real estate agents, brokers, or managers as constituting practice of law, 53 A.L.R.2d 788.

Activities of law clerks as illegal practice of law, 13 A.L.R.3d 1137.

Collecting debts as practice of law, 27 A.L.R.3d 1152.

Bar admission or reinstatement of attorney as affected by alcoholism or alcohol abuse, 39 A.L.R.4th 567.

Conditioning reinstatement of attorney upon reaffirmation of debt discharged in bankruptcy, 39 A.L.R.4th 586.

Disciplinary action against attorney for aiding or assisting another person in unauthorized practice of law, 41 A.L.R.4th 361.

Failed applicant’s right of access to bar examination questions and answers, 57 A.L.R.4th 1212.

What constitutes unauthorized practice of law by paralegal, 109 A.L.R.5th 275.

Unauthorized practice of law—Real estate closings, 119 A.L.R.5th 191.

Matters Constituting Unauthorized Practice of Law in Bankruptcy Proceedings, 32 A.L.R.6th 531.

Unauthorized Practice of Law as Contempt. 40 A.L.R.6th 463.

27-11-02. Power to admit vested in the supreme court.

The power to admit persons to practice as attorneys and counselors at law in the courts of this state is vested in the supreme court.

Source:

S.L. 1891, ch. 119, § 1; R.C. 1895, § 420; R.C. 1899, § 420; R.C. 1905, § 495; C.L. 1913, § 789; R.C. 1943, § 27-1102.

Cross-References.

Supreme court makes rules for admission to practice, see § 27-02-07.

Supreme court’s power to promulgate rules for admission to practice, see N.D. Const., Art. VI, § 3.

Notes to Decisions

Admission of Attorneys.

Supreme Court of North Dakota had the power to adopt N.D. Admis. Prac. R. 13 and to exempt processes regarding admission to the bar from public disclosure; mandamus relief was denied to an unsuccessful bar applicant seeking bar records because Rule 13 was neither subordinate to N.D.C.C. § 44-04-18 nor unconstitutional under N.D. Const. art. XI, § 6, which provided for public inspection of government records. Lamb v. State Bd. of Law Examiners, 2010 ND 11, 777 N.W.2d 343, 2010 N.D. LEXIS 7 (N.D.), cert. denied, 560 U.S. 965, 130 S. Ct. 3412, 177 L. Ed. 2d 324, 2010 U.S. LEXIS 4876 (U.S. 2010).

De Novo Review.

On review of the North Dakota State Board of Bar Examiner’s negative recommendation for admission to the Bar of North Dakota on the grounds that applicant lacked the good moral character required for such admission, the Supreme Court would apply the standard of de novo review on the record while still giving some credence to the findings of the board. Layon v. North Dakota State Bar Bd., 458 N.W.2d 501, 1990 N.D. LEXIS 137 (N.D. 1990).

27-11-03. Qualifications of applicants for admission to practice law. [Repealed]

Repealed by S.L. 1983, ch. 82, § 154.

Cross-References.

General requirements for admission to bar, see Admission to Practice Rules, Rule 1.

27-11-03.1. Conviction not bar to certification — Exceptions.

Conviction of an offense does not disqualify a person from a certificate of admission and licensure under this chapter unless the state board of law examiners and the supreme court determine that the offense has a direct bearing upon a person’s ability to serve the public as an attorney and counselor at law, or that the person, following conviction of any offense, is not sufficiently rehabilitated under section 12.1-33-02.1.

Source:

S.L. 1977, ch. 130, § 9; 2001, ch. 286, § 2.

Cross-References.

Definition of offense, see § 12.1-01-04.

27-11-04. Attorney’s certificate of clerkship. [Repealed]

Superseded.

Note.

This section was superseded by the supreme court rule promulgated on December 10, 1964, published at 132 N.W.2d 924.

27-11-05. Applicants for admission to bar to be examined by state bar board — Exception. [Repealed]

Repealed by S.L. 1983, ch. 82, § 154.

Note.

For present provisions regarding admission by bar examination, see Rule 5, Admission to Practice Rules.

For provisions regarding exceptions to admission by examination, see Rules 3 and 6, Admission to Practice Rules, North Dakota Court Rules Annotated.

27-11-06. State board of law examiners established — Appointment and qualifications of board members.

The state board of law examiners consists of at least three but no more than five members appointed by the supreme court. At least three of the members of the board must be resident licensed members of the bar. Each board member must be appointed from a list of nominees submitted by the bar association of the state of North Dakota. The supreme court may return the list to the bar association for additional nominees. If the bar association nominates a member for reappointment, a list of nominees is not required unless requested by the supreme court.

Source:

S.L. 1905, ch. 50, § 1; R.C. 1905, § 488; C.L. 1913, § 782; S.L. 1919, ch. 69, § 1; 1923, ch. 134, § 1; 1925 Supp., § 782; R.C. 1943, § 27-1106; S.L. 1997, ch. 265, § 1; 2001, ch. 286, § 3.

27-11-07. Oath of member of state board of law examiners.

Each member of the state board of law examiners, within ten days after appointment, shall qualify by taking the oath provided for civil officers.

Source:

S.L. 1905, ch. 50, § 2; R.C. 1905, § 489; C.L. 1913, § 783; S.L. 1919, ch. 69, § 2; 1923, ch. 134, § 2; 1925 Supp., § 783; R.C. 1943, § 27-1107; S.L. 2001, ch. 286, § 4.

Cross-References.

Oath of civil officers, see § 44-01-05.

27-11-08. Terms and removal of members of state board of law examiners.

Members of the state board of law examiners must be appointed for a term of six years so arranged that one term expires on January first of every odd-numbered year. Any member of the board may be removed at the pleasure of the supreme court.

Source:

S.L. 1905, ch. 50, § 2; R.C. 1905, § 489; C.L. 1913, § 783; S.L. 1919, ch. 69, § 2; 1923, ch. 134, § 2; 1925 Supp., § 783; R.C. 1943, § 27-1108; S.L. 2001, ch. 286, § 5.

27-11-09. Filling vacancies on state board of law examiners.

If a vacancy in the membership of the state board of law examiners occurs by reason of the death, resignation, removal, or incapacity to serve of any member, a successor must be appointed by the supreme court for the unexpired portion of the term of such member.

Source:

S.L. 1905, ch. 50, § 2; R.C. 1905, § 489; C.L. 1913, § 783; S.L. 1919, ch. 69, § 2; 1923, ch. 134, § 2; 1925 Supp., § 783; R.C. 1943, § 27-1109; S.L. 2001, ch. 286, § 6.

27-11-10. Officers of state board of law examiners.

The state board of law examiners shall elect one of its members president, who holds office for a term of two years and until a successor is duly elected and qualified. The clerk of the supreme court must be ex officio secretary-treasurer of the board.

Source:

S.L. 1905, ch. 50, § 3; R.C. 1905, § 490; C.L. 1913, § 784; S.L. 1919, ch. 69, § 3; 1923, ch. 134, § 3; 1925 Supp., § 784; R.C. 1943, § 27-1110; S.L. 2001, ch. 286, § 7.

27-11-11. Compensation of members of state board of law examiners.

Each member of the state board of law examiners shall receive twenty-five dollars per day for the actual time devoted to official duties, and, in addition thereto, is entitled to receive the actual expenses incurred in attending to official duties while away from the member’s place of residence.

Source:

S.L. 1905, ch. 50, § 6; R.C. 1905, § 493; C.L. 1913, § 787; S.L. 1919, ch. 69, § 4; 1923, ch. 134, § 4; 1925 Supp., § 787; R.C. 1943, § 27-1111; S.L. 1973, ch. 245, § 1; 2001, ch. 286, § 8.

27-11-12. Compensation of secretary-treasurer of state board of law examiners.

The secretary-treasurer of the state board of law examiners must be allowed such compensation for services and expenses as the board determines.

Source:

S.L. 1905, ch. 50, § 5; R.C. 1905, § 492; S.L. 1913, ch. 275, § 1; C.L. 1913, § 786; R.C. 1943, § 27-1112; S.L. 2001, ch. 286, § 9.

27-11-13. Powers of state board of law examiners.

The state board of law examiners may employ such assistants, purchase such supplies, and incur such expense as may be necessary to carry out the duties imposed upon it, but expenditures may not exceed the moneys in the state bar fund. It possesses such other powers and duties relating to the admission of applicants to the bar as prescribed by state law or the supreme court.

Source:

S.L. 1905, ch. 50, § 3; R.C. 1905, § 490; C.L. 1913, § 787; S.L. 1919, ch. 69, § 4; 1925 Supp., § 787; R.C. 1943, § 27-1113; S.L. 1983, ch. 346, § 3; 2001, ch. 286, § 10.

27-11-14. Payment of compensation and expenditures of state board of law examiners.

All claims for compensation of members and officers of the state board of law examiners and all claims for expenditures made by the board must be submitted to the office of management and budget on sworn vouchers as required by law and must be paid by the state treasurer out of the state bar fund.

Source:

S.L. 1905, ch. 50, § 6; R.C. 1905, § 493; C.L. 1913, § 787; S.L. 1919, ch. 69, § 4; 1923, ch. 134, § 4; 1925 Supp., § 787; R.C. 1943, § 27-1114; S.L. 2001, ch. 286, § 11.

27-11-15. Records to be kept by state board of law examiners.

The state board of law examiners shall keep a record of all of its proceedings and a record of all applications for admission and admissions to the bar of this state and shall enroll in a book to be kept for this purpose the name of each person admitted to practice in this state as an attorney at law.

Source:

S.L. 1905, ch. 50, § 3; R.C. 1905, § 490; C.L. 1913, § 784; S.L. 1919, ch. 69, § 3; 1923, ch. 134, § 3; 1925 Supp., § 784; R.C. 1943, § 27-1115; S.L. 2001, ch. 286, § 12.

27-11-16. Examinations for admission to bar conducted by state bar board — Nature of examinations. [Repealed]

Repealed by S.L. 1983, ch. 82, § 154.

27-11-17. Fee payable by all applicants for admission to bar — Disposition of fees.

The state board of law examiners is entitled to receive a fee to be determined by the board with the approval of the supreme court of an amount not to exceed one hundred fifty dollars from each applicant for admission to the bar of this state who submits to examination by the board and a fee to be determined by the board with the approval of the supreme court of an amount not to exceed four hundred dollars from each applicant for admission to the bar of this state who seeks admission upon motion in accordance with state law or supreme court rule. All fees received must be deposited and disbursed in accordance with section 54-44-12.

Source:

S.L. 1905, ch. 50, § 5; R.C. 1905, § 492; S.L. 1913, ch. 275, § 1; C.L. 1913, § 786; R.C. 1943, § 27-1117; S.L. 1963, ch. 236, § 1; 1971, ch. 510, § 1; 1977, ch. 268, § 1; 1983, ch. 346, § 4; 1997, ch. 31, § 12; 2001, ch. 286, § 13.

27-11-18. Board to report results of examinations and recommendations to supreme court. [Repealed]

Repealed by S.L. 1983, ch. 82, § 154.

27-11-19. Supreme court to order issuance of certificate of admission.

The supreme court, after receiving and considering the state board of law examiners’ report of the results of an examination of applicants for admission to the bar of this state and the recommendations of the board, shall enter an order authorizing the issuance of certificates of admission to the bar to those applicants the court considers entitled to admission. The issuance of the certificates is dependent upon the taking of the oath and pledge of office by the applicants at the time and place the order provides.

Source:

S.L. 1905, ch. 50, § 4; R.C. 1905, § 491; C.L. 1913, § 785; R.C. 1943, § 27-1119; S.L. 2001, ch. 286, § 14.

Notes to Decisions

Grading of Examination.

Evidence was insufficient to show that grading of bar applicant’s essay examination was arbitrary and capricious. McGinn v. State Bar Bd., 399 N.W.2d 864, 1987 N.D. LEXIS 244 (N.D. 1987).

An applicant challenging the effectiveness of a bar examination has the burden of establishing its unreliability. This court will neither regrade a bar examination, nor set aside an examination result, without proof that the bar board acted arbitrarily and unreasonably. Faulconbridge v. North Dakota State Bar Bd., 483 N.W.2d 780, 1992 N.D. LEXIS 95 (N.D. 1992).

27-11-20. Oath and pledge to be taken by applicants admitted to the bar.

Each applicant for admission to the bar of this state, upon being admitted to practice as an attorney and counselor at law, shall take, in open court, the oath prescribed in section 4 of article XI of the Constitution of North Dakota, and such additional oath or pledge as the supreme court may require.

Source:

S.L. 1891, ch. 119, § 4; R.C. 1895, § 423; R.C. 1899, § 423; S.L. 1903, ch. 188, § 1; R.C. 1905, § 497; C.L. 1913, § 791; R.C. 1943, § 27-1120; S.L. 1993, ch. 45, § 15.

Notes to Decisions

Oath.

A person upon being admitted to the bar of North Dakota is required to take the oath prescribed by this section and section 211 of the constitution of 1889 (see now, N.D. Const., Art. XI, § 4), and must pay an annual license fee prescribed in N.D.C.C. § 27-11-22 which fee is paid into the state treasury under N.D.C.C. § 27-11-23. Menz v. Coyle, 117 N.W.2d 290, 1962 N.D. LEXIS 91 (N.D. 1962).

27-11-21. Certificate of admission — When issued — Contents.

Each applicant admitted to the bar of this state shall receive a certificate of admission. Such certificate must be issued in the name of the supreme court of the state of North Dakota, must certify that the person named therein has been duly admitted as an attorney and counselor of such court, and as such is authorized to appear in the same and in all other courts of this state, must be signed by the clerk of the supreme court, and must bear the seal of such court.

Source:

R.C. 1943, § 27-1121.

27-11-22. Annual licenses to practice law and to serve on certain courts — Requirement — Issuance — Fees.

A person who has an unrevoked certificate of admission to the bar of this state and who desires to engage in the practice of law, or who is to serve as a judge of a court of record, must secure an annual license from the state board of law examiners on or before January first of each year. The secretary-treasurer of the board shall issue the license upon compliance with the rules adopted or approved by the supreme court to assure the professional competence of attorneys, and upon payment of a fee established by the state bar association at its annual meeting, by a majority vote of its members in attendance at the meeting, not to exceed four hundred dollars. The license is valid for the calendar year for which it is issued. Issuance of an annual license to practice law may not be conditioned upon payment of any surcharge, assessment, or fee in excess of the maximum fee established by this section. This section does not prohibit imposition of a reasonable fee for filing and processing reports of compliance with continuing education requirements.

Source:

S.L. 1913, ch. 11, § 5; C.L. 1913, § 812; S.L. 1919, ch. 69, §§ 9, 10; 1923, ch. 134, §§ 9, 10; 1925 Supp., §§ 811, 812; S.L. 1933, ch. 143, § 1; 1939, ch. 111, § 1; R.C. 1943, § 27-1122; S.L. 1955, ch. 201, § 1; 1957, ch. 207, § 1; 1957 Supp., § 27-1122; S.L. 1963, ch. 237, § 1; 1965, ch. 220, § 1; 1969, ch. 285, § 1; 1971, ch. 305, § 1; 1977, ch. 267, § 2; 1983, ch. 346, § 5; 1991, ch. 333, § 1; 1997, ch. 31, § 13; 2001, ch. 286, § 15.

Notes to Decisions

Disposition of Fees.

The annual license fee prescribed in this section is paid into the state treasury under section 27-11-23. Menz v. Coyle, 117 N.W.2d 290, 1962 N.D. LEXIS 91 (N.D. 1962).

Collateral References.

Validity of state or municipal tax or license fee upon occupation of practicing law, 50 A.L.R.4th 467.

Propriety of attorney’s resignation from bar in light of pending or potential disciplinary action, 54 A.L.R.4th 264.

27-11-23. Fees from annual licenses to be deposited in state bar fund.

The secretary-treasurer of the state board of law examiners shall deposit and disburse all fees and moneys collected by the board in accordance with section 54-44-12.

Source:

S.L. 1913, ch. 11, § 4; C.L. 1913, § 811; S.L. 1919, ch. 69, § 9; 1923, ch. 134, § 9; 1925 Supp., § 811; S.L. 1933, ch. 143, § 1; 1939, ch. 111, § 1; R.C. 1943, § 27-1123; S.L. 1971, ch. 510, § 2; 2001, ch. 286, § 16.

27-11-24. Expenditure of state bar fund.

Moneys in the state bar fund must be used to pay:

  1. The bar association of the state of North Dakota the sum required to be paid under section 27-12-04;
  2. The compensation and expenses allowed by law to each member and to the secretary-treasurer of the state board of law examiners;
  3. The expenses incurred by the state board of law examiners in conducting examinations of applicants for admission to the bar of this state and expenses of the board or a grievance committee of the supreme court in investigating charges warranting the suspension or disbarment of members of the bar, or in prosecutions brought and conducted before the supreme court for the discipline of such members;
  4. The expenses incurred by the bar association of the state of North Dakota in conducting investigations and prosecutions of proceedings instituted for the purpose of protecting the public and the bar of North Dakota against unauthorized practice by corporations, limited liability companies, or persons not licensed to practice law; and
  5. The necessary expenses of conducting and supplying the offices of the state board of law examiners.

Source:

S.L. 1913, ch. 11, § 4; C.L. 1913, § 811; S.L. 1919, ch. 69, § 9; 1923, ch. 134, § 9; 1925 Supp., § 811; S.L. 1933, ch. 143, § 1; 1939, ch. 111, § 1; R.C. 1943, § 27-1124; S.L. 1965, ch. 221, § 1; 1993, ch. 54, § 106; 2001, ch. 286, § 17.

Notes to Decisions

Disposition of Fund.

Where a license fee is a regulatory exaction, a licensee cannot challenge the constitutionality of an enactment disposing of resulting funds, nor can the state bar board challenge such enactment. Goer v. Taylor, 51 N.D. 792, 200 N.W. 898, 1924 N.D. LEXIS 68 (N.D. 1924).

27-11-25. Attorneys admitted in other states admitted without examination. [Repealed]

Repealed by S.L. 1983, ch. 82, § 154.

Note.

For present provisions regarding admission by motion or attorney’s exam, see Rule 6, Admission to Practice Rules, North Dakota Court Rules Annotated.

For present provisions regarding limited admission of nonresident attorneys, see Rule 3, Admission to Practice Rules, North Dakota Court Rules Annotated.

27-11-26. Procedure and proof required for admission without examination. [Repealed]

Repealed by S.L. 1983, ch. 82, § 154.

Note.

For present provisions regarding admission by motion or attorney’s exam, see Rule 6, Admission to Practice Rules, North Dakota Court Rules Annotated.

27-11-27. When foreign attorneys may practice in this state. [Repealed]

Repealed by S.L. 1983, ch. 82, § 154.

Note.

For present provisions regarding limited admission of nonresident attorneys, see Rule 3, Admission to Practice Rules, North Dakota Court Rules Annotated.

CHAPTER 27-12 State Bar Association of North Dakota

27-12-01. State bar association of North Dakota — How governed.

The state bar association of North Dakota shall operate under the constitution, bylaws, and rules adopted at the annual meeting of such association held in 1921 and amendments thereof duly adopted pursuant to the provisions of such constitution and bylaws.

Source:

S.L. 1921, ch. 25, §§ 1, 2; 1923, ch. 133, §§ 1, 2; 1925 Supp., §§ 813a1, 813a2; R.C. 1943, § 27-1201.

27-12-02. Membership of state bar association.

The membership of the state bar association of North Dakota consists of every person:

  1. Who has secured an annual license to practice law in this state from the state board of law examiners in accordance with section 27-11-22; or
  2. Who has an unrevoked certificate of admission to the bar of this state and who has paid an annual membership fee to the state bar association. The annual fee must be established by the state bar association at its annual meeting, by a majority vote of its members in attendance at the meeting, not to exceed eighty percent of the maximum fee for an annual license to practice law in this state as prescribed in section 27-11-22.

Source:

S.L. 1921, ch. 25, § 1; 1923, ch. 133, § 1; 1925 Supp., § 813a1; R.C. 1943, § 27-1202; S.L. 1965, ch. 222, § 1; 1971, ch. 305, § 2; 1977, ch. 267, § 3; 1987, ch. 379, § 1; 2001, ch. 286, § 18.

27-12-03. Rights of members of bar association.

The members of the state bar association of North Dakota who have secured an annual license to practice law in this state are entitled to all of the rights and privileges of the association and are entitled to vote and to participate in all of the meetings thereof. The members of the association who have not secured an annual license to practice law in this state are entitled to all of the rights and privileges of the association, except that they are not entitled to vote at the meetings or to serve as an officer of the association.

Source:

S.L. 1921, ch. 25, § 1; 1923, ch. 133, § 1; 1925 Supp., § 813a1; R.C. 1943, § 27-1203; S.L. 1987, ch. 379, § 2.

27-12-04. Moneys payable from state bar fund to state bar association.

The state bar association of North Dakota, out of the state bar fund, must receive for operation of the lawyer discipline system seventy-five dollars of each license fee beginning January 1, 1999. Eighty percent of the remaining amount of the annual license fees paid by licensed members must be paid to the state bar association for the purpose of administering and operating the association. These sums must be paid quarterly to the association by the state board of law examiners upon vouchers drawn in accordance with section 54-44-12.

Source:

S.L. 1921, ch. 25, § 2; 1923, ch. 133, § 2; 1925 Supp., § 813a2; S.L. 1933, ch. 143, § 1; 1939, ch. 111, § 1; R.C. 1943, § 27-1204; S.L. 1955, ch. 201, § 2; 1957, ch. 207, § 2; 1957 Supp., § 27-1204; S.L. 1963, ch. 239, § 1; 1969, ch. 286, § 1; 1971, ch. 510, § 3; 1997, ch. 31, § 14; 2001, ch. 286, § 19.

Collateral References.

Use of compulsory bar association dues or fees for activities from which particular members dissent, 40 A.L.R.4th 672.

27-12-05. Bond of secretary-treasurer of bar association — Payment of premium.

The secretary-treasurer of the state bar association of North Dakota shall give a bond in the sum of two thousand dollars, and the premium therefor must be paid out of the amount paid to the said association from the state bar fund.

Source:

S.L. 1923, ch. 133, § 4; 1925 Supp., § 813a4; R.C. 1943, § 27-1205.

27-12-06. Method of expenditure of association’s funds — Annual report of receipts and disbursements.

Expenditures of funds from the state bar association special fund, which consists of all moneys or fees collected or received by the association and which is deposited or disbursed in accordance with section 54-44-12, must be approved by the president and executive director of said association. The secretary-treasurer of said association, in addition to the duties imposed by the constitution, bylaws, and rules of the association, annually shall file in the office of the secretary-treasurer of the state board of law examiners an itemized statement of the receipts and disbursements of said association.

Source:

S.L. 1921, ch. 25, § 3; 1923, ch. 133, § 3; 1925 Supp., § 813a3; R.C. 1943, § 27-1206; S.L. 1963, ch. 239, § 2; 1965, ch. 181, § 14; 1971, ch. 510, § 4; 2001, ch. 286, § 20.

Collateral References.

Use of compulsory bar association dues or fees for activities from which particular members dissent, 40 A.L.R.4th 672.

27-12-07. No liability upon state created by provisions of chapter.

The provisions of this chapter do not create any liability on the part of the state of North Dakota in excess of the payment made, as hereinbefore provided, out of the state bar fund.

Source:

S.L. 1921, ch. 25, § 5; 1923, ch. 133, § 5; 1925 Supp., § 813a5; R.C. 1943, § 27-1207.

27-12-08. Use of funds. [Repealed]

Repealed by S.L. 1971, ch. 297, § 7.

27-12-09. Confidential records.

Information provided to the state bar association regarding applicants or participants in a lawyer referral service or volunteer lawyer program administered by the state bar association is confidential.

Source:

S.L. 1997, ch. 381, § 1.

CHAPTER 27-13 Conduct of Attorneys

27-13-01. Duties of attorneys.

Every attorney and counselor at law shall:

  1. Maintain respect for courts of justice and judicial officers;
  2. Counsel or maintain no claim that appears to the attorney to be unjust, nor any defense except one the attorney believes to be honestly debatable under the law;
  3. Perform faithfully the attorney’s responsibilities as an officer of the court and protector of individual rights;
  4. Support the provision of legal services for indigent persons, public service, and public education about the law;
  5. Work to make the legal system more accessible, responsive, and just;
  6. Employ for purposes of maintaining the causes confided to the attorney, those means only as are consistent with truth and honor, and never seek to mislead the judge or jury by any artifice or false statement of fact or law; and
  7. Never reject, from any consideration personal to the attorney, the cause of the defenseless or oppressed, or delay anyone’s cause for profit or malice.

Source:

Pol. C. 1877, ch. 18, § 4; R.C. 1895, § 427; R.C. 1899, § 427; R.C. 1905, § 500; C.L. 1913, § 794; R.C. 1943, § 27-1301; S.L. 1991, ch. 334, § 1.

Cross-References.

Rules governing conduct of judges, see Rules of Judicial Conduct; Rules of Judicial Conduct Commission, North Dakota Court Rules Annotated.

Rules governing professional conduct for attorneys, see North Dakota Rules of Professional Conduct; Procedural Rules for Lawyer Disability and Discipline; and Standards for Imposing Lawyer Sanctions, North Dakota Court Rules Annotated.

Supreme Court’s authority to promulgate rules for admission to practice, conduct, disciplining and disbarment of attorneys, N.D. Const., Art. VI, § 3; § 27-02-07.

Notes to Decisions

Collection of Funds.

In settling a collection with his client, an attorney must make a full disclosure of the facts. Riegi v. Phelps, 4 N.D. 272, 60 N.W. 402, 1894 N.D. LEXIS 36 (N.D. 1894).

Fee Agreements.

Any fee agreement made during the existence of the attorney-client relationship must be construed most strongly against the attorney, who has the burden of showing the fairness of the agreement. McAdam v. Dynes, 442 N.W.2d 914, 1989 N.D. LEXIS 150 (N.D. 1989).

Prior to the establishment of an attorney-client relationship, the essentials of an express fee contract for legal services are the same as any other contract of employment, and the parties may deal with each other at arm’s length. However, because of the confidential nature of the attorney-client relationship, compensation agreements made during the existence of that relationship are closely scrutinized and construed most strongly against the attorney. McAdam v. Dynes, 442 N.W.2d 914, 1989 N.D. LEXIS 150 (N.D. 1989).

Fraud and Deceit.

Deceit is a ground for disbarment where there is intent to deceive a court, judge, or party. Simpson, 9 N.D. 379, 83 N.W. 541, 1900 N.D. LEXIS 245 (N.D. 1900); Freerks, 11 N.D. 120, 90 N.W. 265, 1902 N.D. LEXIS 192 (N.D. 1902).

Procuring the entry of a fraudulent judgment is deceit. Freerks, 11 N.D. 120, 90 N.W. 265, 1902 N.D. LEXIS 192 (N.D. 1902).

An attorney who settles a lawsuit upon misrepresentation to his client is guilty of deceit. In re Bryans, 52 N.D. 673, 204 N.W. 9, 1925 N.D. LEXIS 121 (N.D. 1925).

Where an attorney verifies a complaint which he must know to be false, he violates his duty as an attorney. In re Bryans, 52 N.D. 673, 204 N.W. 9, 1925 N.D. LEXIS 121 (N.D. 1925).

Attorney’s testimony that third party had no agreement to pay client’s attorney fees, where documentary evidence showed agreement for fees to be paid by third party, was deceptive, misleading and evasive, and a violation of this section. Disciplinary Bd. of the Supreme Court v. Lamont (In re Lamont), 1997 ND 63, 561 N.W.2d 650, 1997 N.D. LEXIS 57 (N.D. 1997).

Clear and convincing circumstantial evidence existed to support a finding that attorney made false statements in a judicial proceeding by claiming that notice and service requirements were met while representing a client in making a claim for abandoned mineral interests, and that attorney offered false evidence by presenting a forged envelope in support of his claim that notice and service requirements were timely met. Disciplinary Bd. v. McDonald (In re McDonald), 2000 ND 87, 609 N.W.2d 418, 2000 N.D. LEXIS 91 (N.D. 2000).

Interim suspension of respondent attorney was ordered where the Disciplinary Board of the Supreme Court of North Dakota asserted that the attorney had committed misconduct and that he posed a substantial threat of irreparable harm to the public because he had forged court documents and a signature on an affidavit, and had provided client with copies of a complaint purportedly filed in a medical malpractice action which, in fact, had not been filed. Disciplinary Bd. v. Peterson (In re Peterson), 2004 ND 101, 680 N.W.2d 238, 2004 N.D. LEXIS 198 (N.D. 2004).

Interest Adverse to Client.
—Generally.

Under the Code of Professional Responsibility, an attorney should not represent multiple clients with differing interests. Rolfstad, Winkjer, Suess, McKennett & Kaiser, P.C. v. Hanson, 221 N.W.2d 734, 1974 N.D. LEXIS 171 (N.D. 1974).

—Prohibited.

An attorney, while the relation of attorney and client exists, may not acquire a beneficial interest in or title to the subject matter of the litigation antagonistic to the title or interest of his client. O'Neill v. Murray, 50 N.W. 619, 6 Dakota 107, 1888 Dakota LEXIS 69 (Dakota 1888); Yerkes v. Crum, 2 N.D. 72, 49 N.W. 422, 1891 N.D. LEXIS 31 (N.D. 1891); Clark v. Sullivan, 3 N.D. 280, 55 N.W. 733, 1893 N.D. LEXIS 24 (N.D. 1893).

Misconduct.

Where charges of unprofessional conduct are on account of violations of the duties as enumerated by the statute and not on account of breaches of duty beyond the statute, the court ought not to consider offenses of the latter sort. In re Eaton, 60 N.D. 580, 235 N.W. 587, 1931 N.D. LEXIS 206 (N.D. 1931).

Offensive Charges and Statements.

License to practice law was revoked and canceled where attorney engaged in offensive personalities and willfully and wrongfully advanced facts or alleged facts prejudicial to the honor and reputation of the parties and witnesses not required by the justice of the cause. In re Eaton, 60 N.D. 580, 235 N.W. 587, 1931 N.D. LEXIS 206 (N.D. 1931).

Practice of Law.

The powers and duties of a lawyer are fixed by this section and section 27-13-02. Menz v. Coyle, 117 N.W.2d 290, 1962 N.D. LEXIS 91 (N.D. 1962).

The practice of law is a matter of vital interest to the general public in North Dakota, since lawyers are engaged in the preservation and protection of the fundamental liberties and rights of the people; thus attorneys are engaged in the carrying out of fundamental aims and purposes of government. Menz v. Coyle, 117 N.W.2d 290, 1962 N.D. LEXIS 91 (N.D. 1962).

Privileged Communications.

It is the duty of an attorney to maintain the secrets of his client inviolate, and the communications received by him are confidential and inadmissible in evidence, although the relationship of attorney and client has terminated. Fosston Mfg. Co. v. Lemke, 44 N.D. 343, 175 N.W. 723, 1919 N.D. LEXIS 221 (N.D. 1919).

If client chooses to make or receive communication to attorney in presence of third persons, it ceases to be confidential and is not entitled to protection under attorney-client privilege. State v. Henderson, 156 N.W.2d 700, 1968 N.D. LEXIS 112 (N.D. 1968).

Underlying Conduct.

It is not an attorney’s violation of the Code of Professional Responsibility, but the underlying conduct, which may provide the basis for a legal malpractice or other recognized claim for relief. Olson v. Fraase, 421 N.W.2d 820, 1988 N.D. LEXIS 89 (N.D. 1988).

Collateral References.

Attorney’s liability for negligence in preparing or conducting litigation, 45 A.L.R.2d 5.

Legal malpractice in connection with attorney’s withdrawal as counsel, 6 A.L.R.4th 342.

Propriety of attorney acting as both counsel and class member or representative, 37 A.L.R.4th 751.

Liability of attorney for suicide of client based on attorney’s professional act or omission, 41 A.L.R.4th 351.

Disciplinary action against attorney for aiding or assisting another person in unauthorized practice of law, 41 A.L.R.4th 361.

Initiating, or threatening to initiate, criminal prosecution as ground for disciplining counsel, 42 A.L.R.4th 1000.

Liability of attorney, acting for client, for malicious prosecution, 46 A.L.R.4th 249.

Attorney’s submission of dispute to arbitration, or amendment of arbitration agreement, without client’s knowledge or consent, 48 A.L.R.4th 127.

Legal malpractice liability for advising client to commit crime or unlawful act, 51 A.L.R.4th 1227.

What constitutes negligence sufficient to render attorney liable to person other than immediate client, 61 A.L.R.4th 464.

Attorney’s liability, to one other than immediate client, for negligence in connection with legal duties, 61 A.L.R.4th 615.

Negligence, inattention, or professional incompetence of attorney in handling client’s affairs in matters involving formation or dissolution of business organization as ground for disciplinary action — modern cases, 63 A.L.R.4th 656.

Imposition of sanctions upon attorneys or parties for miscitation or misrepresentation of authorities, 63 A.L.R.4th 1199.

Ineffective assistance of counsel, misrepresentation, or failure to advise, of immigration consequences of guilty plea, 65 A.L.R.4th 719.

Attorney’s personal liability for expenses incurred in relation to services for client, 66 A.L.R.4th 256.

Negligence, inattention, or professional incompetence of attorney in handling client’s affairs in personal injury or property damage actions as ground for disciplinary action — modern cases, 68 A.L.R.4th 694.

Admissibility of lie detector test results, or of offer or refusal to take test, in attorney disciplinary proceeding, 79 A.L.R.4th 576.

Measure and elements of damages recoverable for attorney’s negligence in preparing or conducting litigation—twentieth century cases, 90 A.L.R.4th 1033.

Legal malpractice: negligence or fault of client as defense, 10 A.L.R.5th 828.

Engaging in offensive personality as ground for disciplinary action against attorney, 58 A.L.R.5th 429.

Law Reviews.

Tell It Only to the Judge: Disclosure of Client Confidences Under the ABA Model Rules of Professional Conduct, 60 N.D. L. Rev. 261 (1984).

Attorney Advertising: The Expanding Horizons of Permissible Conduct: Comment on Zauderer v. Office of Disciplinary Counsel of Supreme Court, 471 U.S. 626, 105 S. Ct. 2265, 85 L. Ed. 2d 652 (1986).

Summary of significant decisions rendered by the North Dakota Supreme Court in 1990 relating to attorney and client, see 66 N.D. L. Rev. 762 (1990).

27-13-02. Powers of attorneys.

An attorney and counselor at law may:

  1. Execute, in the name of the attorney’s client, a bond or other written instrument necessary and proper for the prosecution of an action or proceeding about to be or already commenced, or for the prosecution or defense of any right growing out of an action, proceeding, or final judgment rendered therein.
  2. Bind the attorney’s client to any agreement in respect to any proceeding within the scope of the attorney’s proper duties and powers, but no evidence of any such agreement is receivable, except the statement of the attorney, the attorney’s written agreement signed and filed with the clerk, or an entry thereof upon the records of the court.
  3. Receive money claimed by the attorney’s client in an action or proceeding during the pendency thereof or afterwards, unless the attorney has been previously discharged by the attorney’s client, and upon payment thereof, and not otherwise, may discharge the claim or acknowledge satisfaction of the judgment.

Source:

Pol. C. 1877, ch. 18, § 6; R.C. 1895, § 429; R.C. 1899, § 429; R.C. 1905, § 502; C.L. 1913, § 796; R.C. 1943, § 27-1302.

Notes to Decisions

Agency Presumed.

A duly licensed attorney at law appearing in a proceeding is presumed to be the agent of the person for whom he assumes to act. Rolfstad, Winkjer, Suess, McKennett & Kaiser, P.C. v. Hanson, 221 N.W.2d 734, 1974 N.D. LEXIS 171 (N.D. 1974).

Answer.
—Withdrawal.

After an attorney has filed an answer he cannot withdraw the same because his fees are not paid. Nichells v. Nichells, 5 N.D. 125, 64 N.W. 73, 1895 N.D. LEXIS 14 (N.D. 1895).

Control of Remedy.

Under his general authority, an attorney has control of the remedy applicable to the action in which he appears for his client, and may bind his client to any procedure in connection therewith where such procedure does not prejudice any substantial right of his client. Gasior v. Wentz, 89 N.W.2d 886, 1958 N.D. LEXIS 79 (N.D. 1958).

Employment of Agent.

An attorney has no authority to employ other attorneys to act for him. Riebold v. Hartzell, 23 N.D. 264, 136 N.W. 247, 1912 N.D. LEXIS 92 (N.D. 1912).

Hearing Agreements.

An agreement between attorneys consenting to the hearing of a motion for a new trial by the court must be in writing. Kaslow v. Chamberlain, 17 N.D. 449, 117 N.W. 529, 1907 N.D. LEXIS 8 (N.D. 1907).

Interest Adverse to Client Prohibited.

An attorney, while the relation of attorney and client exists, may not acquire a beneficial interest in or title to the subject matter of the litigation antagonistic to the title or interest of his client. O'Neill v. Murray, 50 N.W. 619, 6 Dakota 107, 1888 Dakota LEXIS 69 (Dakota 1888); Yerkes v. Crum, 2 N.D. 72, 49 N.W. 422, 1891 N.D. LEXIS 31 (N.D. 1891); Clark v. Sullivan, 3 N.D. 280, 55 N.W. 733, 1893 N.D. LEXIS 24 (N.D. 1893).

Misconduct.

In order to prevail in a malpractice action against an attorney for negligence, a plaintiff must establish the following elements: (1) The existence of an attorney-client relationship; (2) a duty by the attorney to the client; (3) a breach of that duty by the attorney; and (4) damages to the client proximately caused by the breach of duty. Wastvedt v. Vaaler, 430 N.W.2d 561, 1988 N.D. LEXIS 203 (N.D. 1988).

Scope of Attorney’s Duties and Powers.

This section recognizes that an attorney must act within the scope of his proper duties and powers. Tostenson v. Ihland, 147 N.W.2d 104, 1966 N.D. LEXIS 152 (N.D. 1966).

This section limits an attorney’s power to bind his or her client to agreements that do not affect the client’s substantive cause of action. Midwest Fed. Sav. Bank v. Dickinson Econo-Storage, 450 N.W.2d 418, 1990 N.D. LEXIS 8 (N.D. 1990).

Transfer of Jurisdiction.

Counsel may stipulate that the successor to the deceased judge may render a decision upon the record made and the evidence taken before the deceased judge and thereby transfer jurisdiction to the successor judge. Gasior v. Wentz, 89 N.W.2d 886, 1958 N.D. LEXIS 79 (N.D. 1958).

Waiver of Rights.

An attorney may not without the consent or acquiescence of his client waive any substantial right growing out of the subject matter of the action. Gasior v. Wentz, 89 N.W.2d 886, 1958 N.D. LEXIS 79 (N.D. 1958).

Collateral References.

Duties, rights, and remedies between attorney and client where attorney purchases property of client at or through tax, execution, or judicial sale, 20 A.L.R.2d 1280, 1306.

Propriety and effect of representation of heir or other beneficiary of decedent’s estate by attorney for executor or administrator in controversy with other heirs or beneficiaries, 47 A.L.R.2d 1104.

Propriety and effect of attorney representing interest adverse to that of former client, 52 A.L.R.2d 1243, 1279.

Appeal, right of an attorney to prosecute, to protect his contingent fee, notwithstanding desire of client to dismiss appeal or to substitute attorneys, 91 A.L.R.2d 618.

Disqualification of otherwise qualified attorney to take oath or acknowledgment from client, 21 A.L.R.3d 483.

Negligence, inattention, or professional incompetence of attorney in handling client’s affairs in criminal matters as ground for disciplinary action — modern cases, 69 A.L.R.4th 410.

Authority of attorney to compromise action—modern cases, 90 A.L.R.4th 326.

27-13-03. Attorney not to be surety.

No practicing attorney and counselor at law may be a surety in any action or proceeding which may be instituted in any of the courts of this state.

Source:

Pol. C. 1877, ch. 18, § 8; R.C. 1895, § 431; R.C. 1899, § 431; R.C. 1905, § 504; C.L. 1913, § 798; R.C. 1943, § 27-1303.

Notes to Decisions

Suretyship Prohibited.

An attorney cannot become a surety in a suit. Peck v. Phillips, 34 N.W. 65, 4 Dakota 430, 1887 Dakota LEXIS 16 (Dakota 1887).

27-13-04. Court may require proof of attorney’s authority — Proceedings stayed until proof furnished.

A court, on motion of either party and on the showing of reasonable grounds therefor, may require the attorney for the adverse party, or for any one of the several adverse parties, to produce or prove by the attorney’s oath or otherwise the authority under which the attorney appears and until the attorney does so may stay all proceedings by that attorney on behalf of the parties for whom that attorney assumes to appear.

Source:

Pol. C. 1877, ch. 18, § 7; R.C. 1895, § 430; R.C. 1899, § 430; R.C. 1905, § 503; C.L. 1913, § 797; R.C. 1943, § 27-1304.

Notes to Decisions

Failure to Raise Issue of Authority.

Defendant who did not make a motion under this section or raise any issue about the authority of counsel in the lower court could not raise that issue for the first time on appeal. Greenwood, Greenwood & Greenwood, P.C. v. Klem, 450 N.W.2d 745, 1990 N.D. LEXIS 21 (N.D. 1990).

Habeas Corpus.

The provision in N.D.C.C. § 54-12-01(5) that the attorney general shall assist in any prosecution “when in his judgment the interests of the state require it” applies to habeas corpus proceedings challenging the validity of a conviction. The court denied a motion for proof of attorney’s authority for the assistant attorney general who appeared in defendant’s case. Jensen v. State, 373 N.W.2d 894, 1985 N.D. LEXIS 394 (N.D. 1985).

Presumption.

This section follows the strong presumption that an attorney who files a lawsuit does so with the authority of his client and the burden of proving lack of authority is on the party denying the authority of the attorney. Greenwood, Greenwood & Greenwood, P.C. v. Klem, 450 N.W.2d 745, 1990 N.D. LEXIS 21 (N.D. 1990).

27-13-05. Attorney’s refusal to deliver client’s money or property — Penalty. [Repealed]

Repealed by S.L. 2001, ch. 287, § 1.

27-13-06. Attorney’s withholding of client’s money or property under alleged lien unlawful if bond furnished. [Repealed]

Repealed by S.L. 2001, ch. 287, § 1.

27-13-07. Attorney’s refusal to deliver client’s money or property not unlawful if attorney furnishes a bond. [Repealed]

Repealed by S.L. 2001, ch. 287, § 1.

27-13-08. Misconduct of attorney — Penalty — Treble civil damages forfeited.

Every attorney who:

  1. Is guilty of any deceit or collusion or consents to any deceit or collusion with intent to deceive the court or any party;
  2. Willfully delays the attorney’s client’s suit with a view to the attorney’s own gain; or
  3. Willfully receives any money or other property for or on account of any money or debt which the attorney has not laid out or become answerable for,

is guilty of a class A misdemeanor and in addition forfeits to the party injured treble damages to be recovered in a civil action.

Source:

Pol. C. 1877, ch. 18, § 5; Pen. C. 1877, § 210; R.C. 1895, §§ 428, 7022; R.C. 1899, §§ 428, 7022; R.C. 1905, §§ 501, 8753; C.L. 1913, §§ 795, 9426; R.C. 1943, § 27-1308; S.L. 1975, ch. 106, § 313.

Notes to Decisions

Criminal Conviction Unnecessary.

A criminal conviction need not precede use of the civil damage provision of this section. Bjorgen v. Kinsey, 466 N.W.2d 553, 1991 N.D. LEXIS 22 (N.D. 1991).

Deceit.

Deceit is a ground for disbarment where there is intent to deceive a court, judge, or party. Simpson, 9 N.D. 379, 83 N.W. 541, 1900 N.D. LEXIS 245 (N.D. 1900); Freerks, 11 N.D. 120, 90 N.W. 265, 1902 N.D. LEXIS 192 (N.D. 1902).

One who procures a judgment fraudulently by misleading the court is guilty of deceit and unprofessional conduct. Freerks, 11 N.D. 120, 90 N.W. 265, 1902 N.D. LEXIS 192 (N.D. 1902).

Misrepresentation as to amount of settlement is deceit. In re Bryans, 52 N.D. 673, 204 N.W. 9, 1925 N.D. LEXIS 121 (N.D. 1925).

Evidence.

The Code of Professional Responsibility does not define standards for civil liability of lawyers for professional conduct, but violations of the Code constitute evidence to be considered by the trier of fact in a legal malpractice action. Olson v. Fraase, 421 N.W.2d 820, 1988 N.D. LEXIS 89 (N.D. 1988).

—Insufficient.

Plaintiff former husband failed to support his claims that his former wife’s attorney and his law firm deliberately delayed settlement of issues between the parties and that they were guilty of knowing deceit and collusion or consented to deceit and collusion with the intent to deceive or commit fraud on the court and others where his affidavits made only conclusory allegations. Riemers v. Peters-Riemers, 2004 ND 153, 684 N.W.2d 619, 2004 N.D. LEXIS 281 (N.D. 2004).

In an action in which plaintiff beneficiary and cotrustee (beneficiary) filed suit against defendants, cotrustee and his wife, alleging wrongful use of trust funds, the beneficiary was not entitled to recover treble damages where defendant cotrustee’s conversions of Trust funds were made while defendant cotrustee was acting in his trustee capacity and not as an attorney. Anderson v. Sullivan, 2007 U.S. Dist. LEXIS 24455 (D.N.D. Mar. 28, 2007).

Legal Malpractice.

Where damages were awarded for legal malpractice but the trial court found no actual damages as a result of defendants’ “acts of deceit,” the trial court did not err in refusing to treble the award. Olson v. Fraase, 421 N.W.2d 820, 1988 N.D. LEXIS 89 (N.D. 1988).

In a suit between attorneys who competed for the same clients, plaintiff lacked standing to pursue a claim against defendants under N.D.C.C. § 27-13-08 because he was not an injured party thereunder; rather his claims were a generalized grievance, and his specific assertions rested on the legal rights and interests third parties, those third parties being defendants’ clients. Ackre v. Chapman & Chapman, P.C., 2010 ND 167, 788 N.W.2d 344, 2010 N.D. LEXIS 172 (N.D. 2010).

Punitive and Trebled Damages Excessive.

An award of both treble damages and punitive damages for the same acts amounts to a double recovery or an excessive penalty. Bjorgen v. Kinsey, 466 N.W.2d 553, 1991 N.D. LEXIS 22 (N.D. 1991).

Treble Damages.

The trial court’s award of nominal damages of $2500 each for four separate acts which was then trebled, was reversed, for at least two reasons. First, the damages were not nominal; nominal damages are limited to one dollar. More significantly, however, no nominal damage award was allowable, where three of the four acts of the defendants for which nominal damages were awarded, were based upon the trial court’s findings that these acts were either an attempt to defraud or were acts of deceit. The trial court also determined, however, that neither the deceased alleged victim nor the estate suffered any damage as a result of these acts. Olson v. Fraase, 421 N.W.2d 820, 1988 N.D. LEXIS 89 (N.D. 1988).

Collateral References.

Liability of professional corporation of lawyers, or individual members thereof, for malpractice or other tort of another member, 39 A.L.R.4th 556.

Legal malpractice liability for advising client to commit crime or unlawful act, 51 A.L.R.4th 1227.

Imposition of sanctions upon attorneys or parties for miscitation or misrepresentation of authorities, 63 A.L.R.4th 1199.

Negligence, inattention, or professional incompetence of attorney in handling client’s affairs in personal injury or property damage actions as ground for disciplinary action — modern cases, 68 A.L.R.4th 694.

Negligence, inattention, or professional incompetence of attorney in handling client’s affairs in bankruptcy matters as ground for disciplinary action — modern cases, 70 A.L.R.4th 786.

Negligence, inattention, or professional incompetence of attorney in handling client’s affairs in criminal matters as ground for disciplinary action — modern cases, 69 A.L.R.4th 410.

Law Reviews.

North Dakota Legal Malpractice: A Summary of the Law, 70 N.D. L. Rev. 615 (1994).

Punitive Damages and Insurance: Are Punitive Damages Insurable? The North Dakota Supreme Court Says Yes, Despite North Dakota’s Public Policy to the Contrary, 70 N.D. L. Rev. 637 (1994).

27-13-09. Permitting use of or making use of attorney’s name unlawful — Penalty.

If any attorney knowingly permits any person, not the attorney’s general law partner or a clerk in the attorney’s office, to sue out any process or to prosecute or defend any action in the attorney’s name, except as authorized by section 27-13-10, such attorney and every person who shall so use the attorney’s name is guilty of a class A misdemeanor.

Source:

Pen. C. 1877, § 211; R.C. 1895, § 7023; R.C. 1899, § 7023; R.C. 1905, § 8754; C.L. 1913, § 9427; R.C. 1943, § 27-1309; S.L. 1975, ch. 106, § 314.

27-13-10. When use of attorney’s name permissible.

Whenever an action or proceeding is authorized by law to be prosecuted or defended in the name of the state or of any public officer, board of officers, or municipal corporation, on behalf of another party, the attorney general or state’s attorney or attorney of such public officer, board, or corporation may permit any proceeding therein to be taken in that attorney’s name by an attorney to be chosen by the party in interest.

Source:

Pen. C. 1877, § 212; R.C. 1895, § 7024; R.C. 1899, § 7024; R.C. 1905, § 8755; C.L. 1913, § 9428; R.C. 1943, § 27-1310.

27-13-11. Partner of public prosecutor not to aid defense — Penalty.

Every attorney who, directly or indirectly, advises in relation to, or aids or promotes the defense of, any action or proceeding in any court, the prosecution of which is carried on, aided, or promoted by any state’s attorney or other public prosecutor with whom such attorney is connected, directly or indirectly, as a partner, or who takes or receives, directly or indirectly, from or on behalf of any defendant therein, any valuable consideration, upon any understanding or agreement whatever, express or implied, having relation to the defense thereof, is guilty of a class A misdemeanor and in addition to the punishment prescribed therefor, that attorney forfeits that attorney’s license to practice.

Source:

Pen. C. 1877, § 730; R.C. 1895, § 7657; R.C. 1899, § 7657; R.C. 1905, § 9431; C.L. 1913, § 10237; R.C. 1943, § 27-1311; S.L. 1975, ch. 106, § 315.

27-13-12. Attorney not to aid defense when formerly interested as public prosecutor — Penalty.

Every attorney who, having prosecuted or in any manner aided or promoted any action or proceeding in any court, as state’s attorney or other public prosecutor, afterward, directly or indirectly, advises in relation to or takes any part in the defense thereof as attorney or otherwise, or takes or receives any valuable consideration from or on behalf of any defendant therein, upon any understanding or agreement whatever, express or implied, having relation to the defense thereof, is guilty of a class A misdemeanor and in addition to the punishment prescribed therefor, that attorney forfeits that attorney’s license to practice.

Source:

Pen. C. 1877, § 731; R.C. 1895, § 7658; R.C. 1899, § 7658; R.C. 1905, § 9432; C.L. 1913, § 10238; R.C. 1943, § 27-1312; S.L. 1975, ch. 106, § 316.

27-13-13. Public prosecutors or partners thereof may defend themselves in criminal or civil actions.

Sections 27-13-11 and 27-13-12 do not prohibit an attorney from defending oneself in person, as attorney or as counsel, when prosecuted either civilly or criminally.

Source:

Pen. C. 1877, § 732; R.C. 1895, § 7659; R.C. 1899, § 7659; R.C. 1905, § 9433; C.L. 1913, § 10239; R.C. 1943, § 27-1313.

27-13-14. Attorney for attorney fiduciary required — Exception.

An attorney who serves as a fiduciary of an estate, trust, or conservatorship must be represented by another attorney. The attorney who serves as fiduciary or the attorney’s law firm may not serve as attorney for the fiduciary. This section does not apply to United States bankruptcy court proceedings or to matters in which the decedent, trustor, beneficiary, or protected individual is a spouse, child, grandchild, parent, grandparent, or sibling of the attorney serving as a fiduciary.

Source:

S.L. 2009, ch. 266, § 2.

CHAPTER 27-14 Disbarment or Suspension of Attorneys

27-14-01. Admission to bar revocable.

The power to revoke or suspend the certificate of admission of an attorney or counselor at law is vested in the supreme court.

Source:

Pol. C. 1877, ch. 18, § 11; R.C. 1895, § 432; S.L. 1899, ch. 105, § 1; R.C. 1899, § 432; R.C. 1905, § 505; S.L. 1913, ch. 11, § 3; C.L. 1913, §§ 799, 810; S.L. 1919, ch. 69, §§ 5, 8; 1923, ch. 134, §§ 5, 8; 1925 Supp., §§ 799, 810; R.C. 1943, § 27-1401.

Cross-References.

Supreme court makes rules for disbarment, disciplining, and reinstatement of attorneys, see § 27-02-07.

Supreme court’s power to promulgate rules for conduct, discipline and disbarment, see N.D. Const., Art. VI, § 3.

Rules governing discipline and disbarment of lawyers, see Procedural Rules for Lawyer Disability and Discipline; and Standards for Imposing Lawyer Sanctions, North Dakota Court Rules Annotated.

Statutes governing substantive duties of lawyers and remedies for persons harmed by misconduct, see chapter 27-13.

Notes to Decisions

Power of Supreme Court.

The statute authorizing the supreme court to revoke the license of an attorney merely affirms preexisting inherent power. Simpson, 9 N.D. 379, 83 N.W. 541, 1900 N.D. LEXIS 245 (N.D. 1900); In re Eaton, 60 N.D. 580, 235 N.W. 587, 1931 N.D. LEXIS 206 (N.D. 1931).

Supreme court, under this section, is authorized to revoke or suspend certificate of admission of an attorney. Application for Christianson, 175 N.W.2d 8, 1970 N.D. LEXIS 97 (N.D. 1970).

The supreme court has the authority and obligation to investigate a disbarred attorney’s pre-disbarment conduct. In re Application of Kraemer, 411 N.W.2d 71, 1987 N.D. LEXIS 381 (N.D. 1987).

Reinstatement.

The court has power to reinstate an attorney who has been disbarred. If the judgment as to character was adverse, it must be overcome by satisfactory proof. Simpson, 11 N.D. 526, 93 N.W. 918, 1903 N.D. LEXIS 81 (N.D. 1903).

It was within the power of the supreme court under this section and Art. VI, § 3 of the North Dakota constitution to order suspended attorney to retake bar examination as precondition to reinstatement. In re Christianson, 253 N.W.2d 410, 1977 N.D. LEXIS 230 (N.D. 1977).

27-14-02. Causes for suspension or revocation of certificate of admission to bar.

The certificate of admission to the bar of this state of an attorney and counselor at law may be revoked or suspended by the supreme court if that attorney has:

  1. Committed an offense determined by the supreme court to have a direct bearing upon a person’s ability to serve the public as an attorney and counselor at law, or the supreme court determines, following conviction of an offense, that the person is not sufficiently rehabilitated under section 12.1-33-02.1;
  2. Willfully disobeyed or violated an order of the court requiring the attorney to do or to refrain from doing an act connected with or in the course of the attorney’s professional practice;
  3. Willfully violated any of the duties of an attorney or counselor at law;
  4. Engaged, while attorney general or assistant attorney general of this state, or while employed in the office of the attorney general, in the private practice of the law, or rendered to any person, for pay, profit, and remuneration, any legal services other than those required in performing the duties imposed upon the attorney by virtue of the duties of the attorney’s office, but an assistant attorney general may finish any case, proceeding, or legal business in which the assistant attorney general was engaged at the time of the person’s appointment, and an attorney general or assistant attorney general with the permission of the attorney general may voluntarily represent indigent clients referred by an organized pro bono program in addition to the regular duties of the attorney’s office; such pro bono representation must be at no cost to the state of North Dakota;
  5. Appeared, while state’s attorney or assistant state’s attorney of any county of this state or while an employee in the office of the state’s attorney, as an attorney for the defense in any criminal action which it was the attorney’s duty to prosecute;
  6. Been convicted of any offense mentioned in section 27-13-08, 27-13-09, 27-13-11, or 27-13-12; or
  7. Committed any other act which tends to bring reproach upon the legal profession. The enumeration of certain grounds for disbarment or suspension of attorneys at law may not be deemed a limitation upon the general powers of the supreme court to suspend or disbar for professional misconduct.

Source:

Pol. C. 1877, ch. 18, § 12; R.C. 1895, § 433; R.C. 1899, § 433; R.C. 1905, § 506; C.L. 1913, § 800; S.L. 1919, ch. 70, § 1; 1921, ch. 19, § 1; 1925 Supp., § 800; R.C. 1943, § 27-1402; S.L. 1977, ch. 130, § 10; 1979, ch. 187, § 56; 1985, ch. 342, § 1.

Cross-References.

Definition of offense, see § 12.1-01-04.

Notes to Decisions

Accepting Retainer While License Suspended.

Accepting a retainer, on the promise to commence the probate of an estate, by a person whose certificate of admission to the bar was suspended constitutes a false pretense with intent to defraud, which is a felony. In re Lyons, 193 N.W.2d 462, 1971 N.D. LEXIS 175 (N.D. 1971).

Banking Laws.

Attorney who pleaded guilty to charge of conspiracy to violate federal statute prohibiting bank officer from receiving fee, commission, gift or thing of value in exchange for procuring a loan was guilty of a misdemeanor involving moral turpitude, and his certificate was suspended for six months. In re Anderson, 195 N.W.2d 345, 1972 N.D. LEXIS 121 (N.D. 1972).

Bribery.

An attorney’s accepting money when acting as a prosecuting officer, knowing it was intended to influence him, is ground for disbarment. In re Crum, 55 N.D. 876, 215 N.W. 682, 1927 N.D. LEXIS 181 (N.D. 1927).

Where an attorney’s pre-disbarment misconduct included bribery, the betrayal of a client’s interests, the misuse of a trust account and the failure to file a correct petition regarding fees in a bankruptcy case, the appropriate disciplinary action was disbarment and to fix the time in which he could apply for reinstatement to be not less than three years. In re Application of Kraemer, 411 N.W.2d 71, 1987 N.D. LEXIS 381 (N.D. 1987).

Contempt.

There is no summary suspension or disbarment for contempt. State v. Root, 5 N.D. 487, 67 N.W. 590, 1896 N.D. LEXIS 46 (N.D. 1896).

Criminal Proceeding.

A conviction in a criminal proceeding is not a prerequisite to the institution of disciplinary proceedings, nor is acquittal necessarily a bar thereto. In re Application of Kraemer, 411 N.W.2d 71, 1987 N.D. LEXIS 381 (N.D. 1987).

Disobeying Court Order.

Disobedience of court order directing preparation of findings of fact, conclusions of law, and order of judgment, and failure to return the case filed to the clerk or respond to inquiries from his client and the court clerk, justified attorney’s suspension from the practice of law. In re Maddock, 265 N.W.2d 229, 1977 N.D. LEXIS 189 (N.D. 1977).

Embezzlement.

Certificate of admission to practice law was revoked by supreme court where attorney was convicted of embezzlement and offered no resistance to revocation of his certificate. In re Application for George, 182 N.W.2d 868, 1971 N.D. LEXIS 153 (N.D. 1971).

Attorney who, upon completion of tax return in each of five consecutive years, accepted more than one hundred dollars with which to pay the tax but neither filed the return nor paid the tax, fraudulently appropriated the money and was guilty of felonious embezzlement. In re Lyons, 193 N.W.2d 462, 1971 N.D. LEXIS 175 (N.D. 1971).

Failure to Attend to Matters.

Although attorney’s habitual failure to attend to matters entrusted to him and failure to communicate with his clients was partly attributable to health and other personal problems, such conduct warranted a one year suspension from the practice of law. Disciplinary Bd. of Supreme Court v. O'Neil, 326 N.W.2d 879, 1982 N.D. LEXIS 408 (N.D. 1982).

False Statements and Misrepresentations.

Attorney’s conduct violated the Code of Professional Responsibility, specifically disciplinary rules DR 1-101(A) and DR 1-102(A)(4), (5) and (6), and warranted his suspension from the practice of law for at least ninety days, where, to prevent his past life from being discovered, he deliberately failed to disclose his military record as requested on the application for admission to the bar and, subsequent to his admission to the bar, he deliberately gave misinformation concerning his date and place of birth, former places of residence and former employment, and his holding of driver licenses from other states in his applications for an insurance agent’s license and a driver’s license. In re Howe, 257 N.W.2d 420, 1977 N.D. LEXIS 162 (N.D. 1977).

Income Tax Violations.

Attorney who was convicted of “willfully and knowingly attempting to file false and fraudulent income tax returns” was suspended for nine months; the conviction was for a crime involving moral turpitude. In re Application for Bosch, 175 N.W.2d 11, 1970 N.D. LEXIS 109 (N.D. 1970).

Attorney was suspended for nine months for conviction on three counts of income tax evasion, which is a felony. In re Peterson, 175 N.W.2d 132, 1970 N.D. LEXIS 96 (N.D. 1970).

Attorney’s conviction of willful failure to file income tax returns over a three-year period involved moral turpitude warranting disciplinary action. In re Pohlman, 248 N.W.2d 833, 1976 N.D. LEXIS 175 (N.D. 1976).

Laches in Prosecution.

A disbarment proceeding is not a criminal prosecution and laches in prosecuting does not constitute a defense. In re Crum, 7 N.D. 316, 75 N.W. 257, 1898 N.D. LEXIS 69 (N.D. 1898).

Malfeasance in Office.

An attorney may be disbarred where he has been found guilty of malfeasance in his office as an attorney. In re Nevin, 57 N.D. 367, 222 N.W. 266, 1928 N.D. LEXIS 138 (N.D. 1928).

Misappropriation of Funds.

An attorney who misappropriates funds collected for his client is subject to disbarment. In re Torson, 46 N.D. 200, 183 N.W. 1016, 1920 N.D. LEXIS 78 (N.D. 1920).

License to practice law was revoked and canceled where attorney converted money belonging to his client, which he received in the course of his professional business. In re Garrity, 60 N.D. 454, 235 N.W. 343, 1931 N.D. LEXIS 188 (N.D. 1931).

Attorney who used part of money received from sale of lots belonging to estate of which he was administrator, allegedly misappropriated certain money paid to him to pursue appeal, and attempted to negotiate certain checks which were returned because of insufficient funds, was suspended for period of one year. Application for Christianson, 175 N.W.2d 8, 1970 N.D. LEXIS 97 (N.D. 1970).

Attorney who misappropriated money from an insurance company was suspended from the practice of law for three years. In re Application for Disciplinary Action Against Rorvig, 495 N.W.2d 51, 1993 N.D. LEXIS 2 (N.D. 1993).

Lawyer was suspended for six months where he practiced a course of misappropriating other client funds from his trust account and of paying clients’ statements from money subsequently received for other clients’ settlements, in violation of N.D.R. Lawyer Discipl. 1.2, N.D.R. Prof. Conduct 1.15, and subsection (7), and displaying a pattern of misconduct and multiple offenses considered aggravating circumstances under N.D.R. Stds. Imposing Lawyer Sanctions 9.22(c) and (d). Disciplinary Bd. of Supreme Court v. Madlom (In re Madlom), 549 N.W.2d 196, 1996 N.D. LEXIS 201 (N.D. 1996).

Misconduct.

Disbarment should be resorted to only if the misconduct of the attorney was gross, and the evidence clearly showed him unfit to be entrusted with a license. In re Bryans, 52 N.D. 673, 204 N.W. 9, 1925 N.D. LEXIS 121 (N.D. 1925).

Misrepresentation.

An attorney who misled court as to facts in insurance case and misrepresented amount of settlement to client was suspended for a period of one year from the practice of law where the evidence did not show him so unfit and untrustworthy as to require a judgment of disbarment. In re Bryans, 52 N.D. 673, 204 N.W. 9, 1925 N.D. LEXIS 121 (N.D. 1925).

Notice of Charges.

An accused attorney in a disbarment proceeding has the right to be apprised of the specific charges and to limit the investigation to the charges so made. In re Eaton, 60 N.D. 580, 235 N.W. 587, 1931 N.D. LEXIS 206 (N.D. 1931).

Penalties.

Where attorney willfully disobeyed an order of the court requiring him to do or to refrain from doing an act connected with or in the course of his professional practice, in violation of subsection (2) of this section, by failing to notify clients of his interim suspension and failing to turn over his files to the professional trustee, he was disbarred, ordered to make restitution of sums remaining unpaid to clients, required to pay costs and expenses of the disciplinary proceeding and required to pay the costs and expenses of the professional trustee. In re Application for Disciplinary Action Against Anderson, 491 N.W.2d 703, 1992 N.D. LEXIS 272 (N.D. 1992).

Power to Disbar.

The supreme court has the inherent power to suspend or disbar attorneys. Simpson, 9 N.D. 379, 83 N.W. 541, 1900 N.D. LEXIS 245 (N.D. 1900).

Although the supreme court has power to disbar, disbarment proceedings may be instituted in the district court. Freerks, 11 N.D. 120, 90 N.W. 265, 1902 N.D. LEXIS 192 (N.D. 1902).

Reproach to the Legal Profession.

Attorney’s certificate of admission to the bar was properly revoked where he had improperly supervised an administrator and permitted filing of false state and federal estate tax returns, falsely represented to another client that he had perfected an appeal, accepted a $500 retainer from a third client and refused to contact client in the penitentiary, cashed a check upon a closed account using as a reference another attorney who had to make the payment good, and accepted a fee for future services which he never performed. In re McKinnon, 200 N.W.2d 62, 1972 N.D. LEXIS 180 (N.D. 1972).

Attorney who admitted violations by failing to proceed competently and with reasonable diligence, by failing to make reasonable efforts to keep client informed and to comply with requests for information and, acknowledging that she was responsible for deposits into business and trust accounts of the law firm, and admitted skimming deposits intended for firm business and trust accounts was suspended for three years and ordered to pay reasonable costs and expenses of the disciplinary proceeding for acts that brought reproach upon the legal profession, as conduct involving dishonesty, fraud, deceit or misrepresentation. Disciplinary Bd. of the Supreme Court v. Schubert-Madsen (In re Application for Disciplinary Action Against Schubert-Madsen), 533 N.W.2d 145, 1995 N.D. LEXIS 105 (N.D. 1995).

Resignation From Bar.

Attorney who had not renewed his license to practice law in North Dakota since 1992, and who acknowledged an adverse malpractice judgment and a criminal judgment, was allowed to resign as a member of the bar; respondent asserted, as mitigation, that the conduct complained of occurred during a time of extreme emotional pressure for which he sought and received therapy and that he was presently taking medication for hypothyroidism. Disciplinary Bd. Disciplinary Board of the Supreme Court v. Kinsey (In re Disciplinary Action against Kinsey), 524 N.W.2d 89, 1994 N.D. LEXIS 243 (N.D. 1994).

State’s Attorney.
—Generally.

A state’s attorney is subject to removal for an unlawful exaction of money from a county. Simpson, 9 N.D. 379, 83 N.W. 541, 1900 N.D. LEXIS 245 (N.D. 1900).

A state’s attorney who renders assistance to the defendant in a criminal case violates his duty as an attorney. Voss, 11 N.D. 540, 90 N.W. 15, 1902 N.D. LEXIS 187 (N.D. 1902).

—Gambling.

The gambling by a state’s attorney in a public place on a roulette wheel without prosecuting the keeper constitutes a misdemeanor which authorizes disbarment. Voss, 11 N.D. 540, 90 N.W. 15, 1902 N.D. LEXIS 187 (N.D. 1902).

—Harassment.

Attorney was publicly reprimanded and placed on two years’ probation for making obscene and harassing telephone calls to a woman during a two-month period while he was a state’s attorney. In re Application for Disciplinary Action Against Keller, 502 N.W.2d 504, 1993 N.D. LEXIS 123 (N.D. 1993).

Statutory Grounds.

Where the statute enumerates grounds for the disbarment of an attorney, other grounds will not be considered by the court. In re Eaton, 4 N.D. 514, 62 N.W. 597, 1895 N.D. LEXIS 48 (N.D. 1895).

In a disbarment proceeding, where the charges are based on the attorney’s violations of duties enumerated by statute, violations of duties outside the statute cannot be considered. In re Eaton, 60 N.D. 580, 235 N.W. 587, 1931 N.D. LEXIS 206 (N.D. 1931).

Terms of Suspension or Disbarment.

Unless otherwise ordered, the terms of every suspension or disbarment from the practice of law should be limited so that the attorney suspended shall refrain, during such suspension, from all facets of the ordinary law practice including, but not limited to, the examination of abstracts; consummation of real estate transactions; preparation of legal briefs, deeds, buy and sell agreements, contracts, wills, and tax returns; and acting as a fiduciary. In re Disciplinary Action Against Larson, 485 N.W.2d 345, 1992 N.D. LEXIS 100 (N.D. 1992).

Violation of Suspension.

The preparation of tax returns by attorney during her suspension was the practice of law in violation of the suspension. In re Disciplinary Action Against Larson, 485 N.W.2d 345, 1992 N.D. LEXIS 100 (N.D. 1992).

Willfully.

The term “willfully” in a professional disciplinary proceeding means acts that were done in the exercise of the performer’s free will and were not done under coercion. Disciplinary Bd. v. Larson (In re Larson), 512 N.W.2d 454, 1994 N.D. LEXIS 49 (N.D. 1994).

Collateral References.

Attorney representing interest adverse to that of former client as subject to discipline, 17 A.L.R.3d 835.

What constitutes representation of conflicting interests subjecting attorney to disciplinary action, 17 A.L.R.3d 835.

State court disciplinary action against attorney for federal income tax conviction, 59 A.L.R.2d 1398.

Pardon as preventing or nullifying disbarment, 70 A.L.R.2d 268.

Criticism of opinion or decision of court as ground for disbarment of attorney, 12 A.L.R.3d 1408.

What constitutes representation of conflicting interests subjecting attorney to disciplinary action, 17 A.L.R.3d 835.

Homicide or assault as ground for disbarment or suspension of attorney, 21 A.L.R.3d 887.

Attorney’s right to compensation as affected by disbarment or suspension before complete performance, 24 A.L.R.3d 1193.

Misconduct in capacity as judge as basis for disciplinary action against attorney, 57 A.L.R.3d 1150.

Pardon as restoring public office or license or eligibility therefor, 58 A.L.R.3d 1191.

Federal income tax conviction as involving moral turpitude warranting disciplinary action against attorney, 63 A.L.R.3d 476.

Federal income tax conviction as constituting nonprofessional misconduct warranting disciplinary action against attorney, 63 A.L.R.3d 512.

Modern status of law regarding solicitation of business by or for attorney, 5 A.L.R.4th 866.

Election campaign activities as ground for disciplining attorney, 26 A.L.R.4th 170.

Advertising as ground for disciplining attorney, 30 A.L.R.4th 742.

Failure to cooperate with or obey disciplinary authorities as ground for disciplining attorney — modern cases, 37 A.L.R.4th 646.

Liability of professional corporation of lawyers, or individual members thereof, for malpractice or other tort of another member, 39 A.L.R.4th 556.

Bar admission or reinstatement of attorney as affected by alcoholism or alcohol abuse, 39 A.L.R.4th 567.

Conditioning reinstatement of attorney upon reaffirmation of debt discharged in bankruptcy, 39 A.L.R.4th 586.

Initiating, or threatening to initiate, criminal prosecution as ground for disciplining counsel, 42 A.L.R.4th 1000.

Sexual misconduct as ground for disciplining attorney or judge, 43 A.L.R.4th 1062.

Negligence, inattention, or professional incompetence of attorney in handling client’s affairs in tax matters as ground for disciplinary action — modern cases, 66 A.L.R.4th 314.

Negligence, inattention, or professional incompetence of attorney in handling client’s affairs in estate or probate matters as ground for disciplinary action — modern cases, 66 A.L.R.4th 342.

Misconduct involving intoxication as ground for disciplinary action against attorney, 1 A.L.R.5th 874.

Attorney’s right to compensation as affected by disbarment or suspension before complete performance, 59 A.L.R.5th 693.

Attorneys at law: disciplinary proceedings for drafting instrument such as will or trust under which attorney-drafter or member of attorney’s family or law firm is beneficiary, grantee, legatee, or devisee, 80 A.L.R.5th 597.

Law Reviews.

Attorney Advertising: The Expanding Horizons of Permissible Conduct: Comment on Zauderer v. Office of Disciplinary Counsel of Supreme Court, 471 U.S. 626, 105 S. Ct. 2265, 85 L. Ed. 2d 652 (1986).

27-14-03. Reference to state bar board by supreme court.

Whenever a verified complaint is made and filed with the clerk of the supreme court charging any member of the bar of this state with conduct warranting that person’s disbarment or suspension as an attorney at law and it appears to the court that those charges should be investigated, those charges must be referred to the state bar board with directions to investigate the same.

Source:

S.L. 1913, ch. 11, § 1; C.L. 1913, § 808; S.L. 1919, ch. 69, § 6; 1923, ch. 134, § 6; 1925 Supp., § 808; Supreme Court Rule No. 35; R.C. 1943, § 27-1403.

Notes to Decisions

Abandonment of Client.

An attorney may be disbarred for abandonment of his client’s interests and the retention of fees paid for his services. In re Maloney, 35 N.D. 1, 153 N.W. 385, 1915 N.D. LEXIS 156 (N.D. 1915).

Power of Supreme Court.

The supreme court has the authority and obligation to investigate a disbarred attorney’s pre-disbarment conduct. In re Application of Kraemer, 411 N.W.2d 71, 1987 N.D. LEXIS 381 (N.D. 1987).

Privileged Communication.

A verified complaint bringing it to the supreme court’s attention that an attorney is charged with conduct warranting disbarment or suspension, is absolutely privileged, it being a proceeding authorized by law. McCurdy v. Hughes, 63 N.D. 435, 248 N.W. 512, 1933 N.D. LEXIS 197, 1933 N.D. LEXIS 198 (N.D. 1933).

Collateral References.

Propriety of attorney’s resignation from bar in light of pending or potential disciplinary action, 54 A.L.R.4th 264.

27-14-04. Investigation by bar board — Witnesses, subpoenas, oaths, testimony.

When a complaint charging a member of the bar with misconduct is referred to the state bar board for investigation, each member of such board may:

  1. Issue a subpoena commanding any witness to appear at any place within the judicial district in which the witness resides;
  2. Administer oaths to witnesses; and
  3. Take testimony concerning the charges made in the complaint.

Source:

S.L. 1913, ch. 11, § 1; C.L. 1913, § 808; S.L. 1919, ch. 69, § 6; 1923, ch. 134, § 6; 1925 Supp., § 808; R.C. 1943, § 27-1404.

27-14-05. Report by bar board.

When the state bar board has completed its investigation of a complaint filed against a member of the bar as provided in section 27-14-04, it shall make a report to the supreme court stating therein its conclusions as to the charges investigated and its recommendations as to further proceedings.

Source:

S.L. 1913, ch. 11, § 2; C.L. 1913, § 809; S.L. 1919, ch. 69, § 7; 1923, ch. 134, § 7; 1925 Supp., § 809; R.C. 1943, § 27-1405.

27-14-06. Prosecution by state bar board.

Upon receiving the report mentioned in section 27-14-05, the supreme court may order and direct the state bar board to file accusations and begin proceedings for the disbarment, suspension, or other discipline of the accused attorney in accordance with the procedure provided in this chapter, or such other procedure as the court may prescribe. If an order is made directing the bar board to begin such proceedings, it then is the duty of such board to comply therewith and to select and designate an attorney to prosecute the proceeding or to conduct the prosecution by its own members.

Source:

S.L. 1913, ch. 11, § 3; C.L. 1913, § 810; S.L. 1919, ch. 69, § 8; 1923, ch. 134, § 8; 1925 Supp., § 810; R.C. 1943, § 27-1406.

Notes to Decisions

Contempt.

There is no summary suspension or disbarment for contempt. State v. Root, 5 N.D. 487, 67 N.W. 590, 1896 N.D. LEXIS 46 (N.D. 1896).

Collateral References.

Direct proceeding against attorney for representing interests adverse to that of former client, 52 A.L.R.2d 1243, 1279.

Appointment of counsel for attorney facing disciplinary charges, 86 A.L.R.4th 1071.

27-14-07. Filing of accusations — Answer thereto.

Upon the initiation of a disbarment proceeding, counsel charged with the prosecution thereof shall file accusations and cause the same to be served as the court may direct. The accused may plead to the accusations within the time for answer prescribed by the court.

Source:

Pol. C. 1877, ch. 18, § 14; R.C. 1895, § 435; R.C. 1899, § 435; R.C. 1905, § 508; S.L. 1913, ch. 11, § 3; C.L. 1913, §§ 802, 810; S.L. 1919, ch. 69, § 8; 1923, ch. 134, § 8; R.C. 1943, § 27-1407.

27-14-08. Trial.

If a copy of the complaint against the accused has been served upon the accused and the accused has been given an opportunity to be heard, the proceeding, when issue is joined, must be referred by the supreme court for the taking of testimony and the making of findings and recommendations. Upon the filing of such findings and recommendations, or upon the default of the accused, or upon the accused’s plea of guilty, the court shall render such judgment as the case may require.

Source:

Pol. C. 1877, ch. 18, § 15; R.C. 1895, § 436; R.C. 1899, § 436; R.C. 1905, § 509; C.L. 1913, § 803; R.C. 1943, § 27-1408.

27-14-09. Revocation and suspension.

The revocation and suspension of an attorney’s certificate of admission to the bar constitutes a forfeiture of that individual’s office as an attorney or counselor at law to practice in the courts of this state so long as such revocation or suspension is in effect.

Source:

Pol. C. 1877, ch. 18, § 11; R.C. 1895, § 432; S.L. 1899, ch. 105, § 1; R.C. 1899, § 432; R.C. 1905, § 505; C.L. 1913, § 799; S.L. 1919, ch. 69, § 5; 1923, ch. 134, § 5; 1925 Supp., § 799; R.C. 1943, § 27-1409.

Notes to Decisions

Power of Court.

The statute authorizing the supreme court to revoke the license of an attorney merely affirms preexisting inherent power. In re Eaton, 60 N.D. 580, 235 N.W. 587, 1931 N.D. LEXIS 206 (N.D. 1931).

Reinstatement.

The court has power to reinstate an attorney who has been disbarred. If the judgment as to character was adverse, it must be overcome by satisfactory proof. Simpson, 11 N.D. 526, 93 N.W. 918, 1903 N.D. LEXIS 81 (N.D. 1903).

Violation During Suspension.

Acceptance of an attorney’s fee as a retainer, on the promise to commence the probate of an estate, by a person whose certificate of admission to the bar was suspended constitutes a false pretense with intent to defraud, which is a felony, and his license to practice was revoked. In re Lyons, 193 N.W.2d 462, 1971 N.D. LEXIS 175 (N.D. 1971).

Collateral References.

Jurisdiction of court other than that which disbarred attorney to entertain proceedings for his reinstatement, 70 A.L.R.2d 268.

Pardon as restoring public office or license or eligibility therefor, 58 A.L.R.3d 1191.

Propriety of attorney’s resignation from bar in light of pending or potential disciplinary action, 54 A.L.R.4th 264.

Law Reviews.

Summary of significant decisions rendered by the North Dakota Supreme Court in 1990 relating to disbarment of attorneys, see 66 N.D. L. Rev. 792 (1990).

27-14-10. Expenses of prosecution.

The expenses incident to the investigation of charges against a member of the bar of this state and to a prosecution of the accused must be paid out of the state bar fund.

Source:

S.L. 1913, ch. 11, § 4; C.L. 1913, § 811; S.L. 1919, ch. 69, § 9; 1923, ch. 134, § 9; 1925 Supp., § 811; S.L. 1933, ch. 143, § 1; R.C. 1943, § 27-1410.

Notes to Decisions

Costs Paid by Accused.

This section has no relation to assessment of costs of disciplinary proceedings against accused, but merely authorizes use of certain funds for the proceedings. In re Maragos, 285 N.W.2d 541, 1979 N.D. LEXIS 346 (N.D. 1979).

Disposition of State Bar Fund.

Where a license fee is a regulatory exaction, a licensee cannot challenge the constitutionality of an enactment disposing of resulting funds, nor can the state bar board challenge such enactment. Goer v. Taylor, 51 N.D. 792, 200 N.W. 898, 1924 N.D. LEXIS 68 (N.D. 1924).

CHAPTER 27-15 Judicial Conference

27-15-01. Judicial conference established.

There is established a judicial conference consisting of:

  1. All judges of the supreme court and district courts.
  2. The attorney general.
  3. The dean of the university of North Dakota school of law.
  4. Five members of the bar who are engaged in the practice of law who must be chosen by the board of governors of the state bar association.
  5. All surrogate judges appointed by the supreme court under section 27-17-03.
  6. Two municipal judges selected by the municipal judges’ association.
  7. The clerk of the North Dakota supreme court.

Source:

S.L. 1927, ch. 124, § 1; R.C. 1943, § 27-1501; S.L. 1959, ch. 252, § 1; 1965, ch. 223, § 1; 1975, ch. 278, § 1; 1981, ch. 320, § 57; 1983, ch. 355, § 1; 1985, ch. 333, § 2; 1991, ch. 326, § 95.

Cross-References.

As to creation and duties of a judicial planning committee, see Administrative Rule 14, North Dakota Court Rules Annotated.

Notes to Decisions

Functions of Council.

The functions and duties of the judicial council, created by this section, whose membership is comprised solely of members of the state bar association, are specifically provided for in section 27-15-05. Menz v. Coyle, 117 N.W.2d 290, 1962 N.D. LEXIS 91 (N.D. 1962).

Law Reviews.

Courts of Limited Jurisdiction in North Dakota, 31 N.D. L. Rev. 6, 17 (1955).

One Year of the Judicial Council in North Dakota, 2 Dak. L. Rev. 295 (1928).

Social Science As An Aid to Administration, 3 Dak. L. Rev. 285 (1931).

Some Phases of 1927 Legislation in North Dakota, 1 Dak. L. Rev. 65 (Issue No. III) (1927).

The Judicial Council Act, 1 Dak. L. Rev. 43 (Issue No. II) (1927).

27-15-02. Term of office — Vacancy — How filled.

The judges of the supreme court and district courts, the attorney general, the dean of the university of North Dakota school of law, and the surrogate judges shall hold office as members of the judicial conference during the time they occupy their respective official positions. The term of office of the two municipal judges is two years, except that of the municipal judges first appointed after July 1, 1985, one must be appointed for a term of one year. The term of office of the five members of the bar is five years, except that of the members of the bar first appointed after July 1, 1985, one must be appointed for a term of five years, one for a term of four years, one for a term of three years, one for a term of two years, and one for a term of one year. All terms of members serving on July 1, 1985, expire on December 31, 1985. Thereafter all terms commence on January first. A vacancy must be filled by the authority originally selecting the member.

Source:

S.L. 1927, ch. 124, § 2; R.C. 1943, § 27-1502; S.L. 1959, ch. 252, § 2; 1975, ch. 278, § 2; 1981, ch. 320, § 58; 1983, ch. 355, § 2; 1985, ch. 333, § 3; 1991, ch. 326, § 96.

27-15-03. Organization of judicial conference — Rules of procedure.

At the request of the judicial conference, the state court administrator shall serve as the executive secretary of the judicial conference. The judicial conference shall make rules for its procedure, organization, election of officers, and the conduct of its business.

Source:

S.L. 1927, ch. 124, § 3; R.C. 1943, § 27-1503; S.L. 1985, ch. 333, § 4.

27-15-04. Meetings.

The judicial conference shall meet at least twice in each year at such times and places as fixed by the conference.

Source:

S.L. 1927, ch. 124, § 4; R.C. 1943, § 27-1504; S.L. 1985, ch. 333, § 5.

27-15-05. Duties.

The judicial conference shall:

  1. Solicit, receive, and evaluate suggestions relating to the improvement of the administration of justice.
  2. Consider and make recommendations to the supreme court for changes in rules, procedures, or any matter pertaining to the judicial system.
  3. Coordinate continuing judicial education efforts for judges and support staff.
  4. Establish methods for review of proposed legislation which may affect the operation of the judicial branch.

Source:

S.L. 1927, ch. 124, § 5; R.C. 1943, § 27-1505; S.L. 1967, ch. 245, § 3; 1985, ch. 333, § 6.

27-15-06. Hearings — Subpoena of witnesses — Compelling testimony. [Repealed]

Repealed by S.L. 1985, ch. 333, § 8.

27-15-07. Bureau of statistics — Duties of officers — Information required. [Repealed]

Repealed by S.L. 1977, ch. 269, § 1.

27-15-08. Report and recommendations to governor — Suggestion of rules to supreme court. [Repealed]

Repealed by S.L. 1985, ch. 333, § 8.

27-15-09. Meeting of judges. [Repealed]

Repealed by S.L. 1985, ch. 333, § 8.

27-15-10. Compensation — Expenses.

No member of the conference is entitled to receive compensation for any services rendered in that capacity, but any necessary travel expenses, including mileage and subsistence, incurred by any member must be paid from funds appropriated for the purposes of the judicial conference from the supreme court budget.

Source:

S.L. 1927, ch. 124, § 10; R.C. 1943, § 27-1510; S.L. 1959, ch. 252, § 3; 1965, ch. 223, § 2; 1975, ch. 278, § 3; 1981, ch. 320, § 59; 1983, ch. 355, § 3; 1985, ch. 333, § 7.

CHAPTER 27-16 Juvenile Court [Repealed]

[Repealed by S.L. 1969, ch. 289, § 4]

Note.

For present provisions, see chapter 27-20.

CHAPTER 27-17 Retirement of Judges

27-17-01. Retirement of supreme court judges and district court judges.

  1. Every judge of the supreme court or of the district court, including one who has served or shall have served in either or both capacities, shall, at the time the judge ceases to be such judge and regardless of the individual’s age at that time and without further payment by that individual into the judicial retirement fund, acquire a vested right to the judicial retirement salary herein provided for, payable upon application therefor at any time after that individual has attained any of the retirement ages with years of service, as follows:
    1. 65 and 20 years of service;
    2. 66 and 18 years of service;
    3. 67 and 16 years of service;
    4. 68 and 14 years of service;
    5. 69 and 12 years of service; or
    6. 70 and 10 years of service.
  2. If a judge has served fewer than the years of service above required for any given retirement age, the judge is entitled to receive judicial retirement salary only in proportion that the judge’s years of service bear to the years of service otherwise required for retirement at such age. Any judge who has not served at least ten years on reaching that individual’s seventy-third birthday may not be deemed to have waived retirement benefits under this chapter, provided the judge retires at the expiration of the judge’s present term.
  3. The amount of judicial retirement salary payable to a retired judge under subsection 1 must be equal to fifty percent of the annual salary payable to judges of the classification the retired judge had at the time the individual retired, provided that prior to retirement the individual was re-elected as a judge of either the supreme or district court following July 1, 1973, but in no event may the individual’s judicial retirement salary be computed upon a judicial salary less than the one the individual last received prior to re-election. The amendment to this section may not be construed to affect supreme or district court judges who shall have retired prior to July 1, 1973, or who shall retire during or at the end of their term of office which commenced prior to that date. As used in this subsection, the word “re-elected” also includes election of a former district judge to the supreme court, and election of a former supreme court judge to the district court.
  4. The judicial retirement salary payable under this section must be paid to the retired judge during the remainder of the individual’s natural life and must be paid by the director of the office of management and budget, within thirty days after receiving application therefor, in the same manner as salaries are paid to judges of the district court and judges of the supreme court, except that judicial retirement salaries are not subject to judicial retirement assessment.
  5. In lieu of receiving the judicial retirement salary otherwise payable under this chapter, the judge, at any time after having attained retirement age, may irrevocably elect to receive judicial retirement salary according to one of the following optional modes of payment:
    1. First Option. Three-fourths of the judge’s retirement salary payable to the judge alone until death and thereafter one-half of such amount payable to the surviving spouse upon the spouse’s attaining sixty-two years of age and until the spouse remarries or dies.
    2. Second Option. Two-thirds of the judge’s retirement salary payable to the judge alone until death and thereafter a like amount payable to the surviving spouse upon the spouse’s attaining sixty-two years of age and until the spouse remarries or dies.
    3. Third Option. One-half of the judge’s retirement salary payable to the judge until death and a like amount payable to the spouse upon the spouse’s attaining sixty-two years of age and so long as the spouse continues to be the judge’s spouse or unremarried surviving spouse.

Provided, however, that any judge of the supreme court or district court who is appointed or elected to such court from and after July 1, 1960, who has become eligible for retirement hereunder but fails to make application therefor prior to attaining the age of seventy-three years, shall automatically waive all retirement benefits hereunder and shall receive a return of only such moneys as have been retained by the state of North Dakota as a judicial retirement assessment, upon the salary of such judge.

The election of one of the foregoing optional modes of payment must be made in the application for payment of judicial retirement salary, or by written declaration of such election, signed by the judge and delivered to the director of the office of management and budget. In the event the judge has elected an optional mode of payment and dies without having made application for judicial retirement salary, the judicial retirement salary payable to the surviving spouse according to the judge’s option is payable to the surviving spouse in the same manner as if the judge had made application for judicial retirement salary. In the event that a judge entitled to retirement pay dies without having elected an optional mode of payment, the surviving spouse is entitled to payments as provided by the first option as set forth in subdivision a. Judicial retirement salary payable according to one of the foregoing optional modes of payment must be paid in like manner as the full judicial retirement salary is paid. Any judge who retired prior to the effective date of the amendment to this section as provided for in chapter 222 of the 1961 Session Laws, and otherwise eligible for the optional modes of payment herein provided for, may apply for one of the optional modes of payment by written declaration to the director of the office of management and budget; provided, however, such judge shall repay to the state treasury the amount of money the individual has drawn since the date of the individual’s retirement in excess of what the individual would have drawn if the individual had chosen the optional mode of payment now applied for at the date of the individual’s retirement.

Source:

S.L. 1949, ch. 206, § 1; 1957, ch. 210, § 1; R.C. 1943, 1957 Supp., § 27-1701; S.L. 1959, ch. 254; 1961, ch. 222, § 1; 1963, ch. 241, § 1; 1973, ch. 246, § 3; 1983, ch. 172, § 36.

Cross-References.

Commission on judicial qualifications, retirement of judge, see § 27-23-03.

Legislative assembly to provide for retirement of judges, see N.D. Const., Art. VI, §§ 12, 12.1.

Retirement for disability, see §§ 27-05-03.1, 27-05-03.2.

Notes to Decisions

Note.

Section 15 of ch. 246, 1973 S.L., provides: “Legislative intent. It is the intent of the legislative assembly that the judicial retirement program provided by chapter 27-17 of this code shall be phased out of existence, except to the extent that its continuance may be necessary to make payments to retired judges and future payments to judges serving on July 1, 1973, as required by law.”

27-17-01.1. Supplemental retirement benefits. [Repealed]

Repealed by S.L. 1983, ch. 576, § 4.

27-17-02. Retention of assessments from judges’ salaries — Withdrawal of sums so retained.

  1. Every judge of the supreme court or of the district court is subject to a judicial retirement assessment in the amount of five percent of the judge’s salary during the first twenty years of service as such judge, from and after the effective date of this section, which amount must be deducted, withheld, and retained by the state of North Dakota. In computing the period of assessment, every judge must be credited with all previous years in which judicial retirement assessments have been deducted and withheld from the judge’s salary.
  2. In lieu of receiving judicial retirement salary under this chapter, a judge of the supreme court or a judge of the district court, or in the event of the judge’s death, the surviving spouse or legal representative, upon application to the supreme court at any time after the person ceases to be such judge and without having made application for and received judicial retirement salary under this chapter, is entitled to receive the amount of judicial retirement assessments heretofore or hereafter deducted and withheld by the state of North Dakota. If such judge has received judicial retirement salary under this chapter, the amount of judicial retirement assessments deducted and withheld by the state of North Dakota in excess of judicial retirement salary received by such judge, are payable, in the event of the judge’s death, but not otherwise, to the surviving spouse if living, otherwise to the judge’s legal representative.
  3. If any former judge, after having withdrawn judicial retirement assessments withheld by the state of North Dakota, shall thereafter become a judge of the supreme court or of the district court of this state, the person may, at the person’s election, within one year after becoming such judge, reinstate the person’s prior years of service by returning to the fund the amount withdrawn by the person, with simple interest at the rate of four percent per annum from the time of such withdrawal.

Source:

S.L. 1949, ch. 206, § 2; 1951, ch. 200, § 1; 1957, ch. 210, § 2; R.C. 1943, 1957 Supp., § 27-1702; S.L. 1983, ch. 172, § 37; 2001, ch. 122, § 3.

27-17-03. Services and compensation of retired justices and judges.

  1. Upon retirement of a justice of the supreme court or a judge of the district court, the chief justice of the supreme court may appoint the retired justice or judge to serve as a surrogate judge of the supreme court to aid and assist the court in the performance of judicial duties within the unified judicial system as may be assigned by the chief justice with the retired justice’s or judge’s consent.
  2. An appointment under this section does not become effective until the appointee subscribes and files in the office of the secretary of state an oath or affirmation substantially as follows: “I do solemnly swear (or affirm) that I will support the constitutions of the United States and the state of North Dakota, and that I will faithfully discharge the duties of the office of surrogate judge of the state of North Dakota to the best of my ability.”
  3. Subject to subsection 4, a surrogate judge is entitled to receive compensation for services rendered for each day actually engaged in the performance of judicial duties in an amount equal to five percent of the gross monthly salary of a regularly elected or appointed and qualified justice or judge of the court to which the services are rendered, or one-half of that daily compensation for services of one-half day or less.
  4. A surrogate judge is not entitled to receive as compensation for services rendered in the performance of judicial duties during any calendar year a sum of money which when added to any judicial retirement benefits received by the surrogate judge for that year exceeds the annual salary of a justice or judge of the court from which the justice or judge retired. The compensation must be paid upon the certificate of the surrogate judge showing that the services were performed for the number of days claimed in the certificate. Services of a surrogate judge under this section and receipt of compensation therefor do not reduce or otherwise affect the amount of any retirement benefits to which the judge otherwise would be entitled.
  5. In addition to daily compensation, a surrogate judge is entitled to receive reimbursement for travel expenses necessarily incurred in the performance of judicial duties under the assignment, as regularly elected or appointed and qualified justices and judges are entitled to receive.
  6. A retired justice of the supreme court or a retired judge of the district court is also eligible to serve as a master and to be compensated for services rendered in any civil case or other judicial proceeding when so designated by the court having power to appoint masters; a retired justice or judge, when requested, is also eligible to serve as legal counsel and to be compensated for services rendered in the office of the attorney general, in any executive department, commission, or bureau of the state, and for any committee of the legislative assembly.

Source:

S.L. 1949, ch. 206, § 3; 1951, ch. 200, § 1; R.C. 1943, 1957 Supp., § 27-1703; S.L. 1981, ch. 325, § 1.

Cross-References.

Expense allowance to district judge sitting with supreme court, see § 27-05-04.

27-17-04. Salary of retired judges. [Repealed]

Repealed by S.L. 1957, ch. 210, § 3.

27-17-05. Disposition of contributions.

All moneys in the judges retirement fund in the general fund are hereby transferred to a special fund within the state treasury to be known as the judicial retirement fund. Any money collected pursuant to this chapter must be deposited with the state treasurer, who shall credit the same to the special fund to be known as the judicial retirement fund.

Source:

S.L. 1965, ch. 187, § 2.

27-17-06. Immediate withdrawal of present active judges from judges retirement fund.

  1. From and after July 1, 1973, each judge of the supreme or district court serving on that date and each former judge of the supreme or district court, not receiving judicial retirement salary, may elect to withdraw the judge’s previous contributions made pursuant to this chapter, and thereafter not participate in a judicial retirement program provided for by law. This option ceases to be available and may not be exercised after June 30, 1975. If a judge selects this option, the judge is entitled to receive the combined total of the following sums:
    1. The entire amount of the judge’s previous contributions made pursuant to this chapter, to be calculated to the date of election under this section; plus
    2. An amount calculated by applying the vesting schedule set forth in section 54-52-11 to an amount equal to sixty percent of the judge’s individual contributions as calculated in subsection 1, plus earnings thereon as calculated in subsection 3; plus
    3. An amount calculated by applying the figure .05625 to the periodic annual or partial annual balances in the individual judge’s account during the judge’s years of service prior to selecting the option provided by this section. The figure applied pursuant to this subdivision must be compounded annually.
  2. The total amounts received pursuant to this section may not be considered taxable income for the purposes of chapter 57-38. Selection of the option provided by this section must be made in writing to the director of the office of management and budget.

Source:

S.L. 1973, ch. 246, § 1; 2009, ch. 545, § 4.

Note.

Section 54-52-11, referred to in subsection 1.b. of this section, was repealed by section 17 of chapter 499, S.L. 1977.

Cross-References.

Retirement status of newly elected judges, see § 54-52-02.3.

CHAPTER 27-18 County Justice [Repealed]

[Repealed by S.L. 1981, ch. 319, § 51]

CHAPTER 27-19 Indian Civil Jurisdiction

Note.

Some applications of this chapter are pre-empted by federal law. See annotations of Three Affiliated Tribes v. Wold Eng’g, Three Affiliated Tribes v. Wold Engineering, P.C., 476 U.S. 877, 106 S. Ct. 2305, 90 L. Ed. 2d 881, following section 27-19-01. Also, some provisions of this chapter, such as section 27-19-05 and, possibly, section 27-19-06, are no longer effective, because of Public Law 90-284. See annotations of Nelson v. Dubois, 232 N.W.2d 54 (N.D. 1975) and Malaterre v. Malaterre, 293 N.W.2d 139 (N.D. 1980), following section 27-19-05.

27-19-01. Assumption of jurisdiction.

In accordance with the provisions of Public Law 83-280 and section 1 of article XIII of the Constitution of North Dakota, jurisdiction of the state of North Dakota shall be extended over all civil claims for relief which arise on an Indian reservation upon acceptance by Indian citizens in a manner provided by this chapter. Upon acceptance, the jurisdiction of the state is to the same extent that the state has jurisdiction over other civil claims for relief, and those civil laws of this state that are of general application to private property have the same force and effect within such Indian reservation or Indian country as they have elsewhere within this state.

Source:

S.L. 1963, ch. 242, § 1; 1985, ch. 82, § 41.

Notes to Decisions

Acceptance of Jurisdiction by Indians.

Although methods by which Indians may accept jurisdiction of state courts over civil causes of action have been provided, such jurisdiction has not been accepted by Indians on any North Dakota reservation; until Indians do so accept, the state has no jurisdiction over any civil cause arising on an Indian reservation. White Eagle v. Dorgan, 209 N.W.2d 621, 1973 N.D. LEXIS 147 (N.D. 1973), disapproved, Three Affiliated Tribes of Ft. Berthold Reservation v. Wold Engineering, P. C., 467 U.S. 138, 104 S. Ct. 2267, 81 L. Ed. 2d 113, 1984 U.S. LEXIS 8 (U.S. 1984), but see Three Affiliated Tribes of Ft. Berthold Reservation v. Wold Engineering, P. C., 467 U.S. 138, 104 S. Ct. 2267, 81 L. Ed. 2d 113, 1984 U.S. LEXIS 8 (U.S. 1984).

District court erred in entering a default judgment in favor of the lessees because 1) the tribal court had jurisdiction as the lessees entered into a consensual relationship with the lessors through the lease; 2) the tribal code allowed the tribal court to exercise jurisdiction over the ownership, leasehold, use, or possession of any property, or interest therein, located within the tribal court’s territorial jurisdiction, which included all land on the reservation; 3) North Dakota disclaimed jurisdiction over reservation lands; and 4) the Indian tribe had not consented to state court civil jurisdiction under N.D.C.C. ch. 27-19. Gustafson v. Estate of Poitra, 2011 ND 150, 800 N.W.2d 842, 2011 N.D. LEXIS 150 (N.D. 2011), cert. denied, 565 U.S. 1198, 132 S. Ct. 1554, 182 L. Ed. 2d 165, 2012 U.S. LEXIS 1560 (U.S. 2012).

Action for Damages.

State courts have no jurisdiction of an action brought by one Indian against another Indian for injuries and damages resulting from an automobile accident occurring on a state highway within the territorial limits of an Indian reservation, where Indians on the reservation have not voted as provided by this chapter and Public Law 280 of the 83rd Congress, Chapter 505 of the United States Statutes at Large, Volume 67, to accept state jurisdiction. Gourneau v. Smith, 207 N.W.2d 256, 1973 N.D. LEXIS 177 (N.D. 1973), disapproved, Three Affiliated Tribes of Ft. Berthold Reservation v. Wold Engineering, P. C., 467 U.S. 138, 104 S. Ct. 2267, 81 L. Ed. 2d 113, 1984 U.S. LEXIS 8 (U.S. 1984).

Action Under Uniform Reciprocal Enforcement of Support Act.

Laws as to jurisdiction over Indians are not relevant to a proceeding initiated by the county social services department under the Uniform Reciprocal Enforcement of Support Act for reimbursement of support payments made to an Indian mother, where father was a non-Indian and a nonresident of the state. Rolette County ex rel. Rolette County Welfare Bd. v. Eltobgi, 221 N.W.2d 645, 1974 N.D. LEXIS 172 (N.D. 1974).

This chapter requires consent for state court jurisdiction in a paternity case between Indians for conduct on the reservation. McKenzie County Social Servs. Bd. v. V.G., 392 N.W.2d 399, 1986 N.D. LEXIS 393 (N.D. 1986), cert. denied, 480 U.S. 930, 107 S. Ct. 1566, 94 L. Ed. 2d 758, 1987 U.S. LEXIS 1226 (U.S. 1987).

Corporation with Indian Shareholders.

State court had subject matter jurisdiction over breach of contract action between a North Dakota corporation and another North Dakota chartered corporation with 51 percent Indian stockholders. Airvator v. Turtle Mountain Mfg. Co., 329 N.W.2d 596, 1983 N.D. LEXIS 230 (N.D. 1983).

Criminal Jurisdiction.

This chapter does not provide a method by which the state can assume criminal jurisdiction over an Indian reservation. Davis v. O'Keefe, 283 N.W.2d 73, 1979 N.D. LEXIS 276 (N.D. 1979).

Federal Court Jurisdiction.

Where statutory basis for federal jurisdiction was present, federal court had diversity jurisdiction of wrongful death action by North Dakota enrolled Indian against South Dakota enrolled Indian even though North Dakota court could not have exercised jurisdiction because tribe of which both Indians were members had not consented to state court jurisdiction. Poitra v. Demarrias, 502 F.2d 23, 1974 U.S. App. LEXIS 7070 (8th Cir. N.D. 1974), cert. denied, 421 U.S. 934, 95 S. Ct. 1664, 44 L. Ed. 2d 93, 1975 U.S. LEXIS 1437 (U.S. 1975)

Neither state court, federal court, nor Indian court had jurisdiction over action by non-Indians arising out of accident which occurred on Indian reservation where tribe had not consented to state jurisdiction and where tribal code precluded jurisdiction of tribal court over the controversy. Schantz v. White Lightning, 502 F.2d 67, 1974 U.S. App. LEXIS 7071 (8th Cir. N.D. 1974).

Fort Berthold Reservation.

The Three Affiliated Tribes have not conferred jurisdiction upon the state courts over civil causes of action involving their enrolled members and arising within the boundaries of the Fort Berthold Reservation. United States ex rel. Hall v. Hansen, 303 N.W.2d 349, 1981 N.D. LEXIS 222 (N.D. 1981), disapproved, Three Affiliated Tribes of Ft. Berthold Reservation v. Wold Engineering, P. C., 467 U.S. 138, 104 S. Ct. 2267, 81 L. Ed. 2d 113, 1984 U.S. LEXIS 8 (U.S. 1984).

Intrusion on Indians’ Sovereign Immunity.

The extent of the waiver presently required by this chapter is unduly intrusive on the Indians’ common law sovereign immunity, and thus on its ability to govern itself according to its own laws. By requiring that the Tribe open itself up to the coercive jurisdiction of state courts for all matters occurring on the reservation, the statute invites a potentially severe impairment of the authority of the tribal government, its courts, and its laws. Three Affiliated Tribes of Ft. Berthold Reservation v. Wold Engineering, P. C., 476 U.S. 877, 106 S. Ct. 2305, 90 L. Ed. 2d 881, 1986 U.S. LEXIS 58 (U.S. 1986).

Where the parties were married and lived together on the reservation with the children up until the time of separation, the district court’s exercise of jurisdiction over child custody and support in the non-Indian spouse’s divorce action infringed on the right of reservation Indians to make their own laws and be ruled by them. Byzewski v. Byzewski, 429 N.W.2d 394, 1988 N.D. LEXIS 247 (N.D. 1988).

If a jurisdictional holding results in denying a non-Indian plaintiff a state court forum in an action against an Indian which arises on the reservation and is therefore within the tribal court’s exclusive jurisdiction, such disparate treatment of the Indian is justified because it is intended to benefit the class of which he is a member by furthering the congressional policy of Indian self-government. Byzewski v. Byzewski, 429 N.W.2d 394, 1988 N.D. LEXIS 247 (N.D. 1988).

Preemption of Chapter by Federal Law.

This chapter is pre-empted by federal law insofar as it is applied to disclaim pre-existing jurisdiction over suits by tribal plaintiffs against non-Indians for which there is no other forum, absent the Tribe’s waiver of its sovereign immunity and consent to the application of state civil law in all cases to which it is a party. Three Affiliated Tribes of Ft. Berthold Reservation v. Wold Engineering, P. C., 476 U.S. 877, 106 S. Ct. 2305, 90 L. Ed. 2d 881, 1986 U.S. LEXIS 58 (U.S. 1986).

Public Law 90-284.

Public Law 90-284 changed the method by which states could assume civil jurisdiction over actions involving Indians and occurring within Indian country. No action has been taken in North Dakota in compliance with Public Law 90-284 and, consequently, North Dakota does not have jurisdiction over Indians residing within the exterior boundaries of an Indian reservation. Some provisions of this chapter such as section 27-19-05 and possibly section 27-19-06 are no longer effective because of Public Law 90-284. Malaterre v. Malaterre, 293 N.W.2d 139, 1980 N.D. LEXIS 240 (N.D. 1980).

State Court Jurisdiction.

Where non-Indian plaintiffs brought action against enrolled Indians for injuries sustained in auto accident which took place on state highway in Indian reservation and neither Indian defendants nor Indian tribe had accepted jurisdiction pursuant to provisions of this chapter, state courts had no jurisdiction over defendants or subject matter. Schantz v. White Lightning, 231 N.W.2d 812 (N.D. 1975), following Gourneau v. Smith, 207 N.W.2d 256, 1973 N.D. LEXIS 177 (N.D. 1973), disapproved, Three Affiliated Tribes of Ft. Berthold Reservation v. Wold Engineering, P. C., 467 U.S. 138, 104 S. Ct. 2267, 81 L. Ed. 2d 113, 1984 U.S. LEXIS 8 (U.S. 1984).

The fact that plaintiff successfully applied for public assistance with county outside of the reservation boundaries and that, at times, defendant had resided off the reservation were insufficient matters to permit state court jurisdiction to hear and determine a paternity claim between Indians for conduct on the reservation. McKenzie County Social Servs. Bd. v. V.G., 392 N.W.2d 399, 1986 N.D. LEXIS 393 (N.D. 1986), cert. denied, 480 U.S. 930, 107 S. Ct. 1566, 94 L. Ed. 2d 758, 1987 U.S. LEXIS 1226 (U.S. 1987).

State Taxation of Indians.

State had no jurisdiction to impose income tax upon Indians residing on reservation where their income was earned exclusively on the reservation and there had been no agreement by the Indians residing on the reservation accepting jurisdiction of the state to impose an income tax upon individual members of the tribe. White Eagle v. Dorgan, 209 N.W.2d 621, 1973 N.D. LEXIS 147 (N.D. 1973), disapproved, Three Affiliated Tribes of Ft. Berthold Reservation v. Wold Engineering, P. C., 467 U.S. 138, 104 S. Ct. 2267, 81 L. Ed. 2d 113, 1984 U.S. LEXIS 8 (U.S. 1984), but see Three Affiliated Tribes of Ft. Berthold Reservation v. Wold Engineering, P. C., 467 U.S. 138, 104 S. Ct. 2267, 81 L. Ed. 2d 113, 1984 U.S. LEXIS 8 (U.S. 1984).

Termination of Parental Rights.

A petition to terminate parental rights by the county juvenile commissioner is a civil action and the juvenile court has no jurisdiction of such an action against residents of an Indian reservation which has not consented to state jurisdiction under this chapter. In re Whiteshield, 124 N.W.2d 694, 1963 N.D. LEXIS 125 (N.D. 1963), disapproved, Three Affiliated Tribes of Ft. Berthold Reservation v. Wold Engineering, P. C., 467 U.S. 138, 104 S. Ct. 2267, 81 L. Ed. 2d 113, 1984 U.S. LEXIS 8 (U.S. 1984).

Law Reviews.

Indian Law Symposiums, 48 N.D. L. Rev. 533.

State Jurisdiction Over Non-Indian Mineral Activities on Indian Reservations, 52 N.D. L. Rev. 265 (1976).

Tribal Administration of Natural Resource Development, 52 N.D. L. Rev. 307 (1976).

Indians — Jurisdiction — Individual Consent to State Jurisdiction by Reservation Indian Ineffective, 52 N.D. L. Rev. 419 (1976).

Can Federal Courts Remain Open When State Courts Are Closed? Erie R. Co. v. Tompkins on the Indian Reservation, 52 N.D. L. Rev. 647 (1976).

Interpretation of North Dakota’s Indian Civil Jurisdiction Act: Three Affiliated Tribes of Ft. Berthold Reservation v. Wold Engineering, P. C., 476 U.S. 877, 106 S. Ct. 2305, 90 L. Ed. 2d 881, 1986 U.S. LEXIS 58 (U.S. 1986).

27-19-02. Method of acceptance.

Acceptance of jurisdiction may be by either of the following methods:

  1. Upon petition of a majority of the enrolled residents of a reservation who are eighteen years of age or older; or
  2. The affirmative vote of the majority of the enrolled residents voting on the question who are eighteen years of age or older, at an election called and supervised by the North Dakota Indian affairs commission upon petition of fifteen percent or more of those eligible to vote at such an election.

Source:

S.L. 1963, ch. 242, § 2; 1973, ch. 120, § 24; 1997, ch. 108, § 16.

27-19-03. Acceptance proclamation.

Upon acceptance of civil jurisdiction by either method provided in section 27-19-02, the executive director of the Indian affairs commission shall certify such acceptance to the governor. Upon such certification, the governor shall, within ten days, issue a proclamation proclaiming that thirty days from the date of the issuance of such proclamation the provisions of this chapter are in effect.

Source:

S.L. 1963, ch. 242, § 3.

27-19-04. Effective date.

This chapter affects only those claims for relief which arise after the effective date of state jurisdiction as provided in section 27-19-03.

Source:

S.L. 1963, ch. 242, § 4; 1985, ch. 82, § 42.

27-19-05. Individual acceptance.

An individual Indian may accept state jurisdiction as to that individual and that individual’s property by executing a statement consenting to and declaring that individual and that individual’s property to be subject to state civil jurisdiction as herein provided. Such jurisdiction becomes effective on the date of execution of such statement. The statement accepting state jurisdiction must be filed in the office of the county auditor of the county in which the person resides and when so filed is conclusive evidence of acceptance of state civil jurisdiction as provided herein.

Note.

This section has been held ineffective under the supremacy clause of the United States Constitution and Public Law 90-284, 25 USCS § 1322. See annotations of Nelson v. Dubois, 232 N.W.2d 54 (N.D. 1975), and Malaterre v. Malaterre, 293 N.W.2d 139 (N.D. 1980), below.

Notes to Decisions

Public Law 90-284.

Public Law 90-284 changed the method by which states could assume civil jurisdiction over actions involving Indians and occurring within Indian country. No action has been taken in North Dakota in compliance with Public Law 90-284 and, consequently, North Dakota does not have jurisdiction over Indians residing within the exterior boundaries of an Indian reservation. Some provisions of this chapter such as this section and possibly section 27-19-06 are no longer effective because of Public Law 90-284. Malaterre v. Malaterre, 293 N.W.2d 139, 1980 N.D. LEXIS 240 (N.D. 1980).

Validity and Application.

This section is not valid under the Supremacy Clause of the U.S. Constitution and Public Law 90-284, 25 USCS § 1322; an individual Indian cannot confer civil jurisdiction upon state by consent thereto; state jurisdiction over Indian country may be obtained only by state and tribal compliance with Public Law 90-284, §§ 402 and 406, 25 USCS §§ 1322 and 1326; district court did not have “residuary jurisdiction” over Indian defendant; although this holding might leave plaintiffs without a forum in which to redress their injuries since federal courts would not accept jurisdiction unless the statutory bases therefor were present and amount claimed might exceed trial court’s $300 jurisdictional limit, the solution to that problem did not lie with state but with Congress which could amend its statutes and with the tribe which might begin to assert its own jurisdiction. Nelson v. Dubois, 232 N.W.2d 54 (N.D. 1975), following Gourneau v. Smith, 207 N.W.2d 256, 1973 N.D. LEXIS 177 (N.D. 1973), disapproved, Three Affiliated Tribes of Ft. Berthold Reservation v. Wold Engineering, P. C., 467 U.S. 138, 104 S. Ct. 2267, 81 L. Ed. 2d 113, 1984 U.S. LEXIS 8 (U.S. 1984).

27-19-06. Acceptance by guardian.

A guardian appointed by the tribal court or court of Indian offenses may consent to state civil jurisdiction for the guardian’s ward provided the guardian is authorized to do so by the tribal court or court of Indian offenses.

Source:

S.L. 1963, ch. 242, § 6.

Notes to Decisions

Public Law 90-284.

Public Law 90-284 changed the method by which states could assume civil jurisdiction over actions involving Indians and occurring within Indian country. No action has been taken in North Dakota in compliance with Public Law 90-284 and, consequently, North Dakota does not have jurisdiction over Indians residing within the exterior boundaries of an Indian reservation. Some provisions of this chapter such as section 27-19-05 and possibly this section are no longer effective because of Public Law 90-284. Malaterre v. Malaterre, 293 N.W.2d 139, 1980 N.D. LEXIS 240 (N.D. 1980).

27-19-07. Contempt powers.

In addition to other authority conferred by this chapter, the courts of this state have the power to hold persons in contempt of court in order to maintain the dignity of the courts and enforce their orders.

Source:

S.L. 1963, ch. 242, § 7; 1993, ch. 89, § 24.

27-19-08. Limitations upon jurisdiction.

Nothing in this section authorizes the alienation, encumbrance, or taxation of any real or personal property belonging to any Indian or Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or authorizes regulation of the use of the property in a manner inconsistent with any federal treaty, agreement, or statute, or with any regulation made pursuant thereto; or confers jurisdiction upon the state to adjudicate, in probate proceedings or otherwise, the ownership or right to possession of such property or any interest therein. The civil jurisdiction herein accepted and assumed includes the determination of parentage of children, termination of parental rights, commitments by district courts, guardianship, marriage contracts, and obligations for the support of spouse, children, or other dependents.

Source:

S.L. 1963, ch. 242, § 8; 1983, ch. 82, § 58; 1991, ch. 326, § 97.

Notes to Decisions

Child Custody.

Although this section does not specifically mention child custody matters, they are impliedly included in the provision relating to the obligations for the support of spouse, children, or other dependents. Malaterre v. Malaterre, 293 N.W.2d 139, 1980 N.D. LEXIS 240 (N.D. 1980).

27-19-09. Tribal ordinances and customs preserved.

Any tribal ordinance or custom heretofore or hereafter adopted by any Indian tribe, band, or community, in the exercise of any authority which it may possess must, if not inconsistent with the applicable civil law of this state, be given full force and effect in the determination of civil claims for relief pursuant to this section.

Source:

S.L. 1963, ch. 242, § 9; 1985, ch. 82, § 43.

27-19-10. Other benefits not affected.

The provisions of this chapter may not be construed as requiring the extension of any health, welfare, educational, or other governmental service to Indian reservations or Indian country, not otherwise required by the laws or constitution of this state.

Source:

S.L. 1963, ch. 242, § 10.

27-19-11. Petition for withdrawal.

Civil jurisdiction as herein provided over an Indian reservation may be terminated by petition of three-fourths of the enrolled residents of a reservation who are eighteen years of age or older. Such petition must be filed with the North Dakota Indian affairs commission.

Source:

S.L. 1963, ch. 242, § 11; 1973, ch. 120, § 25.

27-19-12. Withdrawal proclamation.

Upon the filing of a petition for withdrawal from the civil jurisdiction of the state, the executive director of the North Dakota Indian affairs commission after substantiating that the provisions of section 27-19-11 have been complied with shall certify such withdrawal to the governor. Upon such certification, the governor shall, within ten days, issue a proclamation proclaiming that thirty days from the date of the issuance of such proclamation the civil jurisdiction of the state is terminated except as to those claims for relief which arose prior to the effective date of such termination or to those contractual obligations which were incurred prior to the effective date of such termination of state civil jurisdiction.

Source:

S.L. 1963, ch. 242, § 12; 1985, ch. 82, § 44.

27-19-13. Individual withdrawal.

An individual who has accepted state civil jurisdiction under the provisions of section 27-19-05 may withdraw upon filing with the county auditor a statement declaring that individual’s withdrawal. Withdrawal does not affect claims for relief which arose prior to the withdrawal or contractual obligations which were incurred prior to the withdrawal.

Source:

S.L. 1963, ch. 242, § 13; 1985, ch. 82, § 45.

CHAPTER 27-20 Uniform Juvenile Court Act [Repealed]

Source:

Repealed by S.L. 2021, ch. 245, § 45, effective August 1, 2021.

CHAPTER 27-20.1 Guardianship of a Child

Source:

S.L. 2019, sb2073, § 7, effective August 1, 2019.

27-20.1-01. Definitions.

As used in this chapter:

  1. “Abandon” means:
    1. As to a parent of a child not in the custody of that parent, failure by the noncustodial parent significantly without justifiable cause:
      1. To communicate with the child; or
      2. To provide for the care and support of the child as required by law; or
    2. As to a parent of a child in that parent’s custody:
      1. To leave the child for an indefinite period without making firm and agreed plans, with the child’s immediate caregiver, for the parent’s resumption of physical custody;
      2. Following the child’s birth or treatment at a hospital, to fail to arrange for the child’s discharge within ten days after the child no longer requires hospital care; or
      3. Willfully fail to furnish food, shelter, clothing, or medical attention reasonably sufficient to meet the child’s needs.
  2. “Abandoned infant” means a child who has been abandoned before reaching the age of one year.
  3. “Child in need of protection” means a child who:
    1. Is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health, or morals, and the need for services or protection is not due primarily to the lack of financial means of the child’s parents, guardian, or other custodian;
    2. Has been placed for care or adoption in violation of law;
    3. Has been abandoned by the child’s parents, guardian, or other custodian;
    4. Is without proper parental care, control, or education as required by law, or other care and control necessary for the child’s well-being because of the physical, mental, emotional, or other illness or disability of the child’s parent or parents, and that such lack of care is not due to a willful act of commission or act of omission by the child’s parents, and care is requested by a parent;
    5. Is in need of treatment and whose parents, guardian, or other custodian have refused to participate in treatment as ordered by the juvenile court;
    6. Was subject to prenatal exposure to chronic or severe use of alcohol or any controlled substance as defined in chapter 19-03.1 in a manner not lawfully prescribed by a practitioner;
    7. Is present in an environment subjecting the child to exposure to a controlled substance, chemical substance, or drug paraphernalia as prohibited by section 19-03.1-22.2; or
    8. Is a victim of human trafficking as defined in title 12.1.

5. “Custodian” means a person, other than a parent or legal guardian, that stands in loco parentis to the child and a person that has been given legal custody of the child by order of a court.

6. “Fit and willing person” means a relative or other individual who has been determined, after consideration of an assessment that includes a criminal history record investigation under chapter 50-11.3, to be a qualified individual under this chapter and chapter 30.1-27, and who consents in writing to act as a legal guardian.

7. “Relative” means:

a. The child’s grandparent, great-grandparent, sibling, half-sibling, aunt, great-aunt, uncle, great-uncle, nephew, niece, or first cousin;

b. An individual with a relationship to the child, derived through a current or former spouse of the child’s parent, similar to a relationship described in subdivision a;

c. An individual recognized in the child’s community as having a relationship with the child similar to a relationship described in subdivision a;

d. The child’s stepparent; or

e. An extended family member as defined by the law or custom of an Indian child’s tribe.

Source:

S.L. 2019, ch. 264, § 7, effective August 1, 2019; 2021, ch. 245, § 15, effective July 1, 2021.

27-20.1-02. Jurisdiction.

The juvenile court has exclusive original jurisdiction of proceedings to grant, modify, or terminate guardianship for a child, except the testamentary appointment of a guardian for a minor governed by chapter 30.1-27.

Source:

S.L. 2019, ch. 264, § 7, effective August 1, 2019.

27-20.1-03. Transfer from district court.

If a court does not approve acceptance of a testamentary guardian of a minor under chapter 30.1-27, the court shall immediately transfer the guardianship portion of the case to the juvenile court and order the child be taken to the juvenile court immediately or to a place of shelter care designated by the juvenile court, or release the child to the custody of the child’s custodian, relative, or other responsible adult able and willing to assume custody of the child, to be brought to the juvenile court at a time designated by the court. The juvenile court shall immediately reappoint the guardian ad litem who served in the probate case whenever possible, or shall immediately appoint an alternative guardian ad litem.

Source:

S.L. 2019, ch. 264, § 7, effective August 1, 2019.

27-20.1-04. Venue.

Except as otherwise provided by this section, a proceeding under this chapter must be commenced in the county in which the child resides. If deprivation is alleged, the proceeding may be brought in the county in which the child is present when it is commenced, the county in which the child has resided for the majority of the thirty days prior to the date of the alleged deprivation, or the county where the alleged deprivation has occurred. The court shall determine the appropriate venue for a deprivation action based on the best interest of the child.

Source:

S.L. 2019, ch. 264, § 7, effective August 1, 2019.

27-20.1-05. Petition — Who may file.

A petition to establish, modify, or terminate a guardianship order, other than one that has been transferred by the district court under chapter 30.1-27, may be filed by any person interested in the welfare of the child who has knowledge of the facts alleged or has information and belief that the facts are true.

Source:

S.L. 2019, ch. 264, § 7, effective August 1, 2019.

27-20.1-06. Contents of petition to appoint guardian of a child.

  1. The petition must state that an order to appoint a guardian of a child is requested and the effect will be as stated in section 27-20.1-13.
  2. The petition must also contain information required by rule 3 of the North Dakota Rules of Juvenile Procedure and include:
    1. The name, address, and telephone number of the petitioner and the petitioner’s relationship to the child;
    2. The full legal name and date of birth of the child, accompanied by a certified copy of the child’s birth certificate unless the petitioner shows good cause for why the child’s birth certificate is unavailable;
    3. The name, last known address, and telephone number of the mother and the name, last known address, and telephone number of the father, alleged father, or presumed father;
    4. If the name, last known address, or telephone number of the parents is not included, detailed information concerning the efforts made to locate the parents;
    5. The name, last known address, and telephone number of the persons having parental rights or visitation rights and the name, address, and telephone number of the persons or entity having the care, custody, or control of the child;
    6. The names, current addresses, and telephone numbers of the persons with whom the child currently lives;
    7. The names, addresses, and telephone numbers of the persons with whom the child has lived during the last five years;
    8. The names of any siblings or half-siblings of the child and with whom each sibling and half-sibling currently lives;
    9. The name and address of the proposed guardian, if different from the petitioner;
    10. The occupation and qualifications of the proposed guardian;
    11. The names, addresses, and telephone numbers of the spouse, parents, adult children, any adult siblings of the proposed guardian, and any adult who resides with or may reside with the proposed guardian;
    12. A brief description and the approximate value of the real and personal property and income of the child, so far as they are known to the petitioner;
    13. A brief description and the approximate value of any anticipated income of the child;
    14. A statement regarding each parent that:
      1. The parent is deceased, accompanied by a copy of the death certificate;
      2. The parent consents to the guardianship, accompanied by an affidavit of the parent indicating consent and any limitations on the guardian’s duties under section 27-20.1-15;
      3. The parent’s rights have been previously terminated, accompanied by a certified copy of the court order terminating parental rights; or
      4. The parent has a child in need of protection as that term is defined under section 27-20.1-01;
    15. A statement whether the petitioner:
      1. Has participated, as a party, a witness, or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number, and the date of the child custody determination, if any; and
      2. Knows of any proceeding that could affect the current proceeding, including proceedings for child support enforcement and proceedings relating to domestic violence protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding;
    16. A statement setting forth the reasons why the petition is in the child’s best interests; and
    17. A statement of whether the child is an Indian child as defined under Public Law 95-608 [92 Stat. 3069; 25 U.S.C.1903]. If the child is an Indian child, the petition must comply with the requirements of Public Law 95-608 [92 Stat. 3071; 25 U.S.C. 1911 et seq.].

Source:

S.L. 2019, ch. 264, § 7, effective August 1, 2019; 2021, ch. 245, § 16, effective July 1, 2021.

27-20.1-07. Procedure upon filing of petition.

  1. A supporting affidavit establishing the basis for the guardianship under subdivision n of subsection 2 of section 27-20.1-06, and that the guardianship is in the best interest of the child, must be filed with the petition. Where deprivation is alleged under paragraph 4 of subdivision n of subsection 2 of section 27-20.1-06, the petition must contain sufficient statements to establish deprivation unless the child has resided in the home of the proposed guardian for at least one year before the filing date of the petition.
  2. A petition under this chapter must be reviewed by the court to determine whether the contents of the petition comply with section 27-20.1-06.
  3. If a petition alleges deprivation, the petition will be reviewed by the court to determine whether there has been a sufficient showing of deprivation.
  4. If the petitioner has made an insufficient showing of deprivation, the court, without oral argument or an evidentiary hearing shall issue an order denying the petition. If the petitioner has made a sufficient showing of deprivation justifying a guardianship, the court shall set a date for an evidentiary hearing.

Source:

S.L. 2019, ch. 264, § 7, effective August 1, 2019.

27-20.1-08. Procedure upon approval of petition.

  1. The court shall issue a summons in accordance with rule 5 of the North Dakota Rules of Juvenile Procedure and appoint a lay guardian ad litem upon the approval of the petition.
  2. An initial hearing must be set in accordance with rule 2 of the North Dakota Rules of Juvenile Procedure.
  3. For a petition filed under paragraphs 1, 2, or 3 of subdivision n of subsection 2 of section 27-20.1-06:
    1. The petitioner may request the court waive the hearing requirement.
    2. The petition must state any person interested in the welfare of the child who opposes the appointment of the proposed guardian shall file an objection to the appointment and a demand for hearing within ten days of the service of the petition. If an objection is not filed within ten days, the court may order the appointment of a guardian for the child without a hearing upon review of the guardian ad litem’s report.
    3. If the petition is unopposed, the court may order appointment of a guardian on the strength of the pleadings, including the report of the guardian ad litem, if satisfied that the conditions of paragraphs 1, 2, or 3 of subdivision n of subsection 2 of section 27-20.1-06 have been met, or may conduct a hearing and require proof of the matters necessary to support the order sought. Before appointment of the guardian, the court shall consider whether the child has or will have significant excess assets and determine whether a conservatorship is necessary under chapter 30.1-29.
    4. The guardian ad litem shall file a report in accordance with rule 17 of the North Dakota Rules of Juvenile Procedure, within twenty days after appointment.

Source:

S.L. 2019, ch. 264, § 7, effective August 1, 2019.

27-20.1-09. Right to counsel.

  1. If, at any time in the proceeding, the court determines the interests of the child are or may be inadequately represented, the court may appoint an attorney to represent the child.
  2. At a proceeding commenced under this chapter, a parent who is indigent and unable to employ legal counsel is entitled to counsel at public expense. If a parent appears without counsel the court shall ascertain whether the parent knows the parent may be represented by counsel and that the parent is entitled to counsel at public expense if indigent. The court may continue the proceeding to enable the parent to obtain counsel and, subject to this section, counsel must be provided for an unrepresented indigent parent upon the parent’s request and the court’s determination that the parent is indigent.
  3. An indigent parent is one who meets the definition of indigent under the guidelines adopted by the commission on legal counsel for indigents.

Source:

S.L. 2019, ch. 264, § 7, effective August 1, 2019.

27-20.1-10. Conduct of hearings.

  1. A hearing under this chapter must be conducted by the court without a jury, in an informal but orderly manner, and separately from other proceedings not included in section 27-20.2-03 or section 27-20.1-02.
  2. The proceedings must be recorded by stenographic notes or by electronic, mechanical, or other appropriate means.
  3. The petitioner shall present the evidence in support of any allegations of the petition not admitted.
  4. The general public must be excluded from the hearing and only the parties, their counsel, witnesses, victims, and any other persons the court finds to have an interest in the proceedings may be admitted. The court may temporarily exclude the child or other person from the hearing if, after being warned by the court that disruptive conduct will cause removal from the courtroom, the child or other person persists in conduct justifying removal from the courtroom.
  5. If the child has or will have significant excess assets, the court shall determine whether a conservatorship is necessary under chapter 30.1-29.

Source:

S.L. 2019, ch. 264, § 7, effective August 1, 2019; 2021, ch. 245, § 17, effective July 1, 2021.

27-20.1-11. Appointment of guardian of a child.

  1. The court may appoint a guardian of a child if the court finds by clear and convincing evidence that the appointment is in the child’s best interest and:
    1. Both parents are deceased or the surviving parent’s rights have been terminated by a previous court order, but there has been no appointment of a guardian for the child by will, the court has transferred the case to juvenile court without appointment of a guardian, or the testamentary guardian failed to accept the appointment under chapter 30.1-27;
    2. The parents have consented in writing by affidavit;
    3. All parental rights have been previously terminated; or
    4. The child is a child in need of protection as defined under section 27-20.1-01.
  2. The court may appoint as guardian any fit and willing person whose appointment would be in the best interest of the child. If the court finds by clear and convincing evidence that the child is of sufficient maturity to make a sound judgment, or the child is age fourteen or older, the court may give substantial weight to the preference of the child. The court shall give due consideration to other factors that may have affected the child’s preference, including whether the child’s preference was based on undesirable or improper influences.
  3. The court may appoint a guardian as a dispositional alternative if a child has been adjudicated as a child in need of protection or delinquent under chapter 27-20.2, 27-20.3, or 27-20.4.

Source:

S.L. 2019, ch. 264, § 7, effective August 1, 2019; 2021, ch. 245, § 18, § 19, effective July 1, 2021.

Note.

Section 27-20.1-11 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 19 of Chapter 245, Session Laws 2021, House Bill 1035; and Section 18 of Chapter 245, Session Laws 2021, House Bill 1035.

Notes to Decisions

Abandonment.

Juvenile court did not err by granting a guardianship for the child because it found the father had abandoned the child. The juvenile court found by clear and convincing evidence that the father had not provided care for or had any contact with the child since 2007 or 2008, and had not made any significant attempts to locate the child or have the child placed in his care. S.K. v. A.D. (In re A.D.), 2021 ND 205, 966 N.W.2d 540, 2021 N.D. LEXIS 205 (N.D. 2021).

Juvenile court did not err in finding the guardianship was in the child’s best interest because it found that the child was abandoned by both parents and it was not required to specifically identify and discuss each best interest factor. Because the finding of deprivation eliminated the need for a finding of exceptional circumstances, the juvenile court was not required to make a finding of exceptional circumstances in order to grant the guardianship. S.K. v. A.D. (In re A.D.), 2021 ND 205, 966 N.W.2d 540, 2021 N.D. LEXIS 205 (N.D. 2021).

27-20.1-12. Findings on petition to appoint guardian of a child — Order of appointment.

  1. After hearing the evidence on the petition or after a waiver of the hearing, the court shall make and file its findings as to whether the requirements of section 27-20.1-06 have been met, whether the guardian is a fit and willing person, and whether the appointment of the guardian is in the child’s best interest.
  2. Upon finding that the requirements of section 27-20.1-06 have been met, the guardian is a fit and willing person, and the appointment of the guardian is in the child’s best interest, the court shall order the appointment. The order must contain:
    1. The name, address, and telephone number of the guardian.
    2. Notice of the right to appeal the guardianship appointment and of the right to seek modification or termination of the guardianship at any time.
    3. If appropriate and in the child’s best interest, the court shall determine the nature and extent, if any, of any contact, sharing of information, and visitation between the parents and the child, and the child and any other interested person.
    4. A requirement that the guardian provide, within ninety days from the date of the order, a beginning inventory of any assets owned by the child or in which the child has an interest. The guardian shall file with the court and serve a copy of the beginning inventory on the child if the child is fourteen years of age or older, and any interested persons designated by the court in its order.
    5. The date on which the first annual report is due and the requirement to file annually thereafter.
    6. The length of time the order is effective. An order appointing or reappointing a guardian under this chapter is effective for up to one year unless the court, upon a showing of good cause, sets a different time frame. An order may not be effective for more than three years.

Source:

S.L. 2019, ch. 264, § 7, effective August 1, 2019.

Notes to Decisions

Best Interest of Child.

Juvenile court did not err in finding the guardianship was in the child’s best interest because it found that the child was abandoned by both parents and it was not required to specifically identify and discuss each best interest factor. Because the finding of deprivation eliminated the need for a finding of exceptional circumstances, the juvenile court was not required to make a finding of exceptional circumstances in order to grant the guardianship. S.K. v. A.D. (In re A.D.), 2021 ND 205, 966 N.W.2d 540, 2021 N.D. LEXIS 205 (N.D. 2021).

27-20.1-13. Effect of order appointing a guardian.

  1. An order appointing a guardian of a child suspends any authority of a parent that is granted to the guardian under that order. A parent subject to such an order is entitled to treatment as a party at any subsequent juvenile court proceeding regarding the child.
  2. While a guardianship is in effect, the parent has the following rights:
    1. Parenting time, contact, and information, to the extent delineated in the guardianship order issued by the court. A parent may petition the court for specific enforcement provisions of the order relating to contact, parenting time, or information; and
    2. Inheritance from the child.
  3. The parent has the primary responsibility to financially support the child.

Source:

S.L. 2019, ch. 264, § 7, effective August 1, 2019.

27-20.1-14. Acceptance of appointment — Consent to jurisdiction — Letters of guardianship.

  1. By accepting the appointment, a guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship that may be instituted by any interested person.
  2. By accepting the appointment, a guardian acknowledges the duty to file an annual report under section 27-20.1-15.
  3. Upon the guardian’s acceptance of the appointment, the court shall issue letters of guardianship. The letters of guardianship must contain:
    1. The name, address, and telephone number of the guardian;
    2. The full name of the child;
    3. Any limitations on the guardian’s authority to make decisions on behalf of the child;
    4. The expiration date of the appointment; and
    5. The date by which the guardian must file the annual report required under section 27-20.1-15.

Source:

S.L. 2019, ch. 264, § 7, effective August 1, 2019.

27-20.1-15. Powers and duties of guardian of a child.

  1. A guardian of a child has the powers and responsibilities of a legal custodian if there is a parent with remaining parental rights. If there is no parent with remaining parental rights, the guardian has the rights of a legal custodian and the authority to consent to the child’s adoption, marriage, enlistment in the armed forces of the United States, and surgical and other medical treatment. A guardian is not liable to third persons by reason of the parental relationship for acts of the child.
  2. A guardian has the following powers and duties:
    1. The guardian must take reasonable care of the child’s personal effects and commence protective proceedings if necessary to protect other property of the child.
    2. The guardian may receive money payable for the support of the child to the child’s parent, guardian, or custodian under the terms of any statutory benefit or insurance system, or any private contract, devise, trust, conservatorship, or custodianship.
      1. The guardian may receive money or property of the child paid or delivered by virtue of section 30.1-26-03. Any sums received must be applied to the child’s current needs for support, care, and education.
      2. The guardian must exercise due care to conserve any excess sum for the child’s future needs unless a conservator has been appointed for the estate of the child, in which case the excess sum must be paid over at least annually to the conservator. Sums so received by the guardian are not to be used for compensation for the guardian’s services except as approved by order of the court or as determined by a duly appointed conservator other than the guardian.
      3. The guardian may not use funds from the child’s estate for room and board that the guardian or the guardian’s spouse have furnished to the child unless a charge for the service is approved by order of the court made upon notice to at least one of the child’s next of kin, if notice is possible.
      4. A guardian may institute proceedings to compel the performance by any person of a duty to support the child or to pay sums for the welfare of the child.
    3. To facilitate the child’s education, social, or other activities.
    4. To authorize medical or other professional care, treatment, or advice. A guardian is not liable by reason of this consent for injury to the child resulting from the negligence or acts of third persons unless it would have been illegal for a parent to have consented.
    5. A guardian shall file an annual report with the court regarding the exercise of powers and duties under this subsection.
      1. The report must describe the status or condition of the child, including any change of residence and reasons for the change, any medical treatment received by or withheld from the child, the child’s educational progress, any expenditure and income affecting the child, and any exercise of legal authority by the guardian affecting the child.
      2. The report must include changes that have occurred since the previous reporting period and an accounting of the child’s estate.
      3. The guardian shall report whether the child continues to require a guardianship.
      4. The report must be filed with the court.
      5. The filing of the report does not constitute an adjudication or a determination of the merits of the report nor does the filing of the report constitute the court’s approval of the report.
      6. The court shall review the report and a hearing may be set.
      7. The office of the state court administrator shall provide forms that may be used to fulfill reporting requirements. Any report must be similar in substance to the state court administrator’s form.
      8. Copies of the guardian’s annual report and of any other reports required by the court must be mailed to the child, if the child is age fourteen or older, the child’s parents, unless the parents’ rights have been terminated or the parents are deceased, and any interested persons designated by the court in its order.
      9. If a guardian fails to file a complete annual report as required by this subdivision, fails to file a report at other times as the court may direct, or fails to provide an accounting of an estate, the court, upon its own motion or upon petition of any interested person, may issue an order compelling the guardian to show cause why the guardian should not immediately make and file the report or account, or be found in contempt for failure to comply. A copy of the order to show cause must be provided to the child, if the child is age fourteen or older, the child’s parents, unless the parents’ rights have been terminated or the parents are deceased, any interested persons designated by the court in its order, and the juvenile court director.
    6. The guardian shall inform the court of any change in the child’s residence within thirty days of the change, but must seek prior authorization of the court to establish or move the child’s residence outside of the state.
    7. In determining what is in the child’s best interest, the guardian shall take into account the child’s preferences to the extent actually known or reasonably ascertainable by the guardian.
    8. To the extent reasonable, the guardian shall delegate to the child responsibilities for decisions affecting the child’s well-being.
    9. The guardian may not delegate authority as a guardian under a power of attorney without prior approval from the court.

Source:

S.L. 2019, ch. 264, § 7, effective August 1, 2019.

27-20.1-16. Procedure for modification, resignation, or termination of a guardianship.

  1. A guardian may petition for permission to resign. A petition for permission to resign must include a request for appointment of a successor guardian unless continuation of the guardianship is no longer necessary. Resignation of a guardian does not terminate the guardianship unless specifically ordered by the court.
  2. Any party to the proceeding in which the child’s status was adjudicated, the director, the child, if fourteen or more years of age, or any interested person, may petition for removal or modification of a guardian on the grounds the removal or modification would be in the best interest of the child. A petition for removal or modification must include a request for appointment of a successor guardian unless continuation of the guardianship is no longer necessary.
  3. Any party to the proceeding in which the child’s status was adjudicated, the director, the child, if fourteen or more years of age, or any interested person, may petition for termination of the guardianship due to:
    1. The child’s death, adoption, marriage, or attainment of majority;
    2. The withdrawal of the parent’s consent; or
    3. The basis for the guardianship no longer exists.
  4. The person seeking modification, resignation, removal, or termination of the guardianship shall file a supporting affidavit with the petition demonstrating the basis for the petition, and serve the petition and affidavit on the child, if the child is age fourteen or older, the child’s parents, unless the parents’ rights have been terminated or the parents are deceased, and any interested persons designated by the court in its order. The petition must be reviewed by the court to determine whether to set an evidentiary hearing. If an insufficient showing has been made, the court shall issue an order denying the petition.
  5. If, at any time in the proceeding, the court determines it is in the best interest of the child, the court may appoint a guardian ad litem.
  6. If, at any time in the proceeding, the court determines the interests of the child are or may be inadequately represented, the court may appoint an attorney to represent the child.

Source:

S.L. 2019, ch. 264, § 7, effective August 1, 2019.

27-20.1-17. Expiration and termination of guardianship of a child.

  1. An order appointing or reappointing a guardian under this chapter is effective for up to one year unless the court, upon a finding of good cause, sets a different time frame. An order may not be effective for more than three years. At least sixty days before the expiration of the initial order of appointment or any following order of reappointment, the court shall request and consider information submitted by the guardian, the child, if fourteen years of age or older, the child’s attorney, if any, the child’s parents, and any interested persons regarding whether the need for a guardianship continues to exist. The court, at its discretion, may appoint a guardian ad litem in accordance with section 27-20.1-08, before the hearing. The court shall hold a hearing on whether the guardianship should continue. Following the hearing and consideration of submitted information, the court may:
    1. Terminate the guardianship if shown by clear and convincing evidence that the circumstances that led to the guardianship no longer exist;
    2. Reappoint the guardian for up to three years; or
    3. Appoint a new guardian.
  2. A guardian’s authority and responsibility terminates upon the death, resignation, or removal of the guardian, or upon the child’s death, adoption, marriage, or attainment of majority, but termination does not affect the guardian’s liability for prior acts or the guardian’s obligation to account for funds and assets of the child. For cases arising under section 27-20.3-16, the age of majority is age twenty-one.
  3. The supreme court, by rule or order, shall provide for the regular review of guardianships in existence on August 1, 2019.

Source:

S.L. 2019, ch. 264, § 7, effective August 1, 2019; 2021, ch. 245, § 20, effective July 1, 2021.

27-20.1-18. Appointment of emergency guardian of a child.

  1. Upon petition by a person interested in the child’s welfare, the court may appoint an emergency guardian if the court finds that compliance with the procedures of this chapter will likely result in substantial harm to the child’s health, safety, or welfare. Immediately upon receipt of the petition for an emergency guardian, the court shall appoint a guardian ad litem to advocate for the best interests of the child.
  2. An emergency guardian may be appointed without hearing or notice to the child, the child’s parent or legal custodian, or the child’s guardian ad litem only if the court finds from affidavit or other sworn testimony that the child will be substantially harmed before a hearing can be held. If the court appoints an emergency guardian without hearing or notice to the child, the child’s parent or legal custodian, or the child’s guardian ad litem, the child, the child’s parent or legal custodian, and the child’s guardian ad litem must be given notice of the emergency appointment by the petitioner within forty-eight hours after the emergency appointment. The court shall hold a hearing on the appropriateness of the emergency appointment within ninety- six hours after the emergency appointment or filing of the petition.
  3. Reasonable notice, either oral or written, stating the time, place, and purpose of the hearing must be given to the child, if fourteen years of age or older, and, to the child’s parents or legal custodian, if they can be found. If oral notice is provided, the petitioner must file an affidavit stating that oral notice including the time, place, and purpose of the hearing has been provided.
  4. The court shall determine if there is probable cause to believe the emergency appointment is in the best interest of the child and one of the provisions of subsection 1 of section 27-20.1-11 is met.
  5. If the emergency guardian is found to be appropriate, the court may order the emergency guardian remain in place for no more than sixty days from the date of the hearing. The court may extend the emergency order for up to six months.
  6. A request for an emergency guardian may be included in a petition for appointment of a guardian of a child under section 27-20.1-05.

Source:

S.L. 2019, ch. 264, § 7, effective August 1, 2019.

27-20.1-19. Attorney’s fees.

If the court determines an action brought under section 30.1-27-07 or this chapter is frivolous, the court may award reasonable, actual, and statutory costs, including reasonable attorney’s fees, incurred by or on behalf of the child.

Source:

S.L. 2019, ch. 264, § 7, effective August 1, 2019.

27-20.1-20. Protective order.

  1. At any stage of the proceedings, upon application of a party or on the court’s own motion, the court may make an order restraining or otherwise controlling the conduct of an individual if the court finds the conduct:
    1. Is or may be detrimental or harmful to the child; or
    2. Will tend to defeat the execution of an order of disposition; and
  2. Due notice of the application or motion and the grounds therefor and an opportunity to be heard have been given to the person against whom the order is directed.

Source:

S.L. 2019, ch. 264, § 7, effective August 1, 2019.

27-20.1-21. Orders for evaluation.

  1. The court may order a party or a proposed guardian to submit to a chemical dependency, parental capacity, mental health, domestic violence, anger management, or other relevant evaluation by a suitably licensed or certified examiner. The court may request other persons having regular contact with the child submit to a chemical dependency, parental capacity, mental health, domestic violence, anger management, or other relevant evaluation by a suitably licensed or certified examiner. Failure to submit to an evaluation will be taken into consideration by the court.
  2. The order may be made only on motion for good cause by a party or guardian ad litem, or on the court’s own motion, and on notice to all parties and the person to be evaluated. The order must:
    1. Specify the type of evaluation and the type of professional or entity to perform the evaluation;
    2. Include the deadline for performing the evaluation;
    3. Include the date by which the evaluation must be filed with the court; and
    4. Specify the party that must pay the costs of the evaluation. If the party is unable to pay the costs, the court may direct the costs to be paid, in whole, or in part, by the county. The court may direct the party to reimburse the county, in whole or in part, for the payment.
  3. The evaluation must be in writing and must set out in detail the evaluator’s findings, including diagnoses, conclusions, and the results of any tests. The evaluator must file a copy with the court.
  4. The evaluation reports and any addendums are confidential. The public or the parties may not read or copy the evaluation reports or addendums unless the court, in its discretion, gives permission. The guardian ad litem may read the evaluation reports and addendums but may not copy the evaluation reports and addendums unless the court, in its discretion, gives permission. A party, proposed guardian, or other person requested to submit to an evaluation by the court under this section is entitled to a copy of the report of evaluation and any addendum, upon request.

Source:

S.L. 2019, ch. 264, § 7, effective August 1, 2019.

27-20.1-22. Confidentiality.

Except as provided by section 27-20.2-21, all files and records under this chapter are closed to the public and confidential.

Source:

S.L. 2019, ch. 264, § 7, effective August 1, 2019; 2021, ch. 245, § 21, effective July 1, 2021.

CHAPTER 27-20.2 Juvenile Court Act

Source:

S.L. 2021, hb1035, § 22, effective August 1, 2021.

27-20.2-01. Definitions. [Effective through August 31, 2022]

As used in this chapter, unless the context requires otherwise:

  1. “Abandon” means:
    1. As to a parent of a child not in the custody of that parent, failure by the noncustodial parent significantly without justifiable cause:
      1. To communicate with the child; or
      2. To provide for the care and support of the child as required by law; or
    2. As to a parent of a child in that parent’s custody:
      1. To leave the child for an indefinite period without making firm and agreed plans, with the child’s immediate caregiver, for the parent’s resumption of physical custody;
      2. Following the child’s birth or treatment at a hospital, to fail to arrange for the child’s discharge within ten days after the child no longer requires hospital care; or
      3. Willfully fail to furnish food, shelter, clothing, or medical attention reasonably sufficient to meet the child’s needs.
  2. “Abandoned infant” means a child who has been abandoned before reaching the age of one year.
  3. “Child” means an individual who is:
    1. Under the age of eighteen years and is not married; or
    2. Under the age of twenty years with respect to a delinquent act committed while under the age of eighteen years and not married.
  4. “Child in need of protection” means a child who:
    1. Is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health, or morals, and the need for services or protection is not due primarily to the lack of financial means of the child’s parents, guardian, or other custodian;
    2. Has been placed for care or adoption in violation of law;
    3. Has been abandoned by the child’s parents, guardian, or other custodian;
    4. Is without proper parental care, control, or education as required by law, or other care and control necessary for the child’s well-being because of the physical, mental, emotional, or other illness or disability of the child’s parent or parents, and that such lack of care is not due to a willful act of commission or act of omission by the child’s parents, and care is requested by a parent;
    5. Is in need of treatment and whose parents, guardian, or other custodian have refused to participate in treatment as ordered by the juvenile court;
    6. Was subject to prenatal exposure to chronic or severe use of alcohol or any controlled substance as defined in chapter 19-03.1 in a manner not lawfully prescribed by a practitioner;
    7. Is present in an environment subjecting the child to exposure to a controlled substance, chemical substance, or drug paraphernalia as prohibited by section 19-03.1-22.2; or
    8. Is a victim of human trafficking as defined in title 12.1.
  5. “Child in need of services” means a child who in any of the foregoing instances is in need of treatment or rehabilitation:
    1. Is habitually and without justification truant from school subject to compulsory school attendance and is absent from school without an authorized excuse more than three days during a school year;
    2. Is habitually disobedient of the reasonable and lawful commands of the child’s parent, guardian, or other custodian, including running away, and is ungovernable or who is willfully in a situation dangerous or injurious to the health, safety, or morals of the child or others;
    3. Has committed an offense applicable only to a child, except for an offense committed by a minor fourteen years of age or older under subsection 2 of section 12.1-31-03 or an equivalent local ordinance or resolution; or
    4. Is under the age of fourteen years and has purchased, possessed, smoked, or used tobacco, a tobacco-related product, an electronic smoking device, or an alternative nicotine product in violation of subsection 2 of section 12.1-31-03. As used in this subdivision, “electronic smoking device” and “alternative nicotine product” have the same meaning as in section 12.1-31-03; and
    5. In any of the foregoing instances is in need of treatment or rehabilitation.
  6. “Custodian” means a person, other than a parent or legal guardian, which stands in loco parentis to the child and a person that has been given legal custody of the child by order of a court.
  7. “Delinquent act” means an act designated a crime under the law, including local ordinances or resolutions of this state, or of another state if the act occurred in that state, or under federal law.
  8. “Delinquent child” means a child who has committed a delinquent act and is in need of treatment or rehabilitation.
  9. “Director” means the director of juvenile court or the director’s designee.
  10. “Diversion” means an intervention strategy that redirects a child away from formal processing in the juvenile justice system, while still holding the child accountable for that child’s actions.
  11. “Facility” means buildings, structures, or systems, including those for essential administration and support, which are used to provide residential treatment for children.
  12. “Host county” means the county within the human service zone in which the human service zone administrative office is located and in which the human service zone team members are employed.
  13. “Human service zone” means a county or consolidated group of counties administering human services within a designated area in accordance with an agreement or plan approved by the department of human services.
  14. “Juvenile court” means the district court of this state.
  15. “Juvenile drug court” means a program established by the supreme court which is a post-petition or post-adjudication program aimed at intervening in substance use disorders through intense supervision and participation in recovery services.
  16. “Proceeding” means any hearing conducted before a juvenile court or a referral for service.
  17. “Qualified residential treatment program” means a licensed or approved residence providing an out-of-home treatment placement for children, including a trauma-informed model.
  18. “Relative” means:
    1. The child’s grandparent, great-grandparent, sibling, half-sibling, aunt, great-aunt, uncle, great-uncle, nephew, niece, or first cousin;
    2. An individual with a relationship to the child, derived through a current or former spouse of the child’s parent, similar to a relationship described in subdivision a;
    3. An individual recognized in the child’s community as having a relationship with the child similar to a relationship described in subdivision a; or
    4. The child’s stepparent.
  19. “Restorative justice” means a system of justice which focuses on the rehabilitation of offenders through reconciliation with victims and the community at large.
  20. “Shelter care” means temporary care of a child in physically unrestricted facilities.
  21. “The court” means the district courts as designated by the North Dakota supreme court which includes juvenile court as a subset of district court.
  22. “Willfully” has the meaning provided in section 12.1-02-02.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021.

27-20.2-01. Definitions. [Effective September 1, 2022]

As used in this chapter, unless the context requires otherwise:

  1. “Abandon” means:
    1. As to a parent of a child not in the custody of that parent, failure by the noncustodial parent significantly without justifiable cause:
      1. To communicate with the child; or
      2. To provide for the care and support of the child as required by law; or
    2. As to a parent of a child in that parent’s custody:
      1. To leave the child for an indefinite period without making firm and agreed plans, with the child’s immediate caregiver, for the parent’s resumption of physical custody;
      2. Following the child’s birth or treatment at a hospital, to fail to arrange for the child’s discharge within ten days after the child no longer requires hospital care; or
      3. Willfully fail to furnish food, shelter, clothing, or medical attention reasonably sufficient to meet the child’s needs.
  2. “Abandoned infant” means a child who has been abandoned before reaching the age of one year.
  3. “Child” means an individual who is:
    1. Under the age of eighteen years and is not married; or
    2. Under the age of twenty years with respect to a delinquent act committed while under the age of eighteen years and not married.
  4. “Child in need of protection” means a child who:
    1. Is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health, or morals, and the need for services or protection is not due primarily to the lack of financial means of the child’s parents, guardian, or other custodian;
    2. Has been placed for care or adoption in violation of law;
    3. Has been abandoned by the child’s parents, guardian, or other custodian;
    4. Is without proper parental care, control, or education as required by law, or other care and control necessary for the child’s well-being because of the physical, mental, emotional, or other illness or disability of the child’s parent or parents, and that such lack of care is not due to a willful act of commission or act of omission by the child’s parents, and care is requested by a parent;
    5. Is in need of treatment and whose parents, guardian, or other custodian have refused to participate in treatment as ordered by the juvenile court;
    6. Was subject to prenatal exposure to chronic or severe use of alcohol or any controlled substance as defined in chapter 19-03.1 in a manner not lawfully prescribed by a practitioner;
    7. Is present in an environment subjecting the child to exposure to a controlled substance, chemical substance, or drug paraphernalia as prohibited by section 19-03.1-22.2; or
    8. Is a victim of human trafficking as defined in title 12.1.
  5. “Child in need of services” means a child who in any of the foregoing instances is in need of treatment or rehabilitation:
    1. Is habitually and without justification truant from school subject to compulsory school attendance and is absent from school without an authorized excuse more than three days during a school year;
    2. Is habitually disobedient of the reasonable and lawful commands of the child’s parent, guardian, or other custodian, including running away, and is ungovernable or who is willfully in a situation dangerous or injurious to the health, safety, or morals of the child or others;
    3. Has committed an offense applicable only to a child, except for an offense committed by a minor fourteen years of age or older under subsection 2 of section 12.1-31-03 or an equivalent local ordinance or resolution; or
    4. Is under the age of fourteen years and has purchased, possessed, smoked, or used tobacco, a tobacco-related product, an electronic smoking device, or an alternative nicotine product in violation of subsection 2 of section 12.1-31-03. As used in this subdivision, “electronic smoking device” and “alternative nicotine product” have the same meaning as in section 12.1-31-03; and
    5. In any of the foregoing instances is in need of treatment or rehabilitation.
  6. “Custodian” means a person, other than a parent or legal guardian, which stands in loco parentis to the child and a person that has been given legal custody of the child by order of a court.
  7. “Delinquent act” means an act designated a crime under the law, including local ordinances or resolutions of this state, or of another state if the act occurred in that state, or under federal law.
  8. “Delinquent child” means a child who has committed a delinquent act and is in need of treatment or rehabilitation.
  9. “Director” means the director of juvenile court or the director’s designee.
  10. “Diversion” means an intervention strategy that redirects a child away from formal processing in the juvenile justice system, while still holding the child accountable for that child’s actions.
  11. “Facility” means buildings, structures, or systems, including those for essential administration and support, which are used to provide residential treatment for children.
  12. “Host county” means the county within the human service zone in which the human service zone administrative office is located and in which the human service zone team members are employed.
  13. “Human service zone” means a county or consolidated group of counties administering human services within a designated area in accordance with an agreement or plan approved by the department of health and human services.
  14. “Juvenile court” means the district court of this state.
  15. “Juvenile drug court” means a program established by the supreme court which is a post-petition or post-adjudication program aimed at intervening in substance use disorders through intense supervision and participation in recovery services.
  16. “Proceeding” means any hearing conducted before a juvenile court or a referral for service.
  17. “Qualified residential treatment program” means a licensed or approved residence providing an out-of-home treatment placement for children, including a trauma-informed model.
  18. “Relative” means:
    1. The child’s grandparent, great-grandparent, sibling, half-sibling, aunt, great-aunt, uncle, great-uncle, nephew, niece, or first cousin;
    2. An individual with a relationship to the child, derived through a current or former spouse of the child’s parent, similar to a relationship described in subdivision a;
    3. An individual recognized in the child’s community as having a relationship with the child similar to a relationship described in subdivision a; or
    4. The child’s stepparent.
  19. “Restorative justice” means a system of justice which focuses on the rehabilitation of offenders through reconciliation with victims and the community at large.
  20. “Shelter care” means temporary care of a child in physically unrestricted facilities.
  21. “The court” means the district courts as designated by the North Dakota supreme court which includes juvenile court as a subset of district court.
  22. “Willfully” has the meaning provided in section 12.1-02-02.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021; 2021, ch. 245, § 22, effective September 1, 2022.

27-20.2-02. Presumption of age.

  1. In determining an individual’s age for purposes of this chapter, the individual’s date of birth as provided by any of the following is presumed to be the individual’s legal date of birth:
    1. A state government in the form of a birth certificate, other state-issued identification, or a certified copy of a birth certificate that includes the individual’s date of birth.
    2. The United States government in the form of a tribal identification document, military identification, passport, passport card, permanent resident card, certificate of United States citizenship, certificate of naturalization, border crossing card, visa, or other entry document that includes the individual’s date of birth.
    3. A foreign government in the form of a passport, driver’s license, or other foreign government-issued identity document that includes the individual’s date of birth. If there is a conflict between government-issued forms, a government-issued birth certificate or a certified copy of a birth certificate takes precedence.
  2. The presumption in subsection 1 may be rebutted by clear and convincing evidence to the contrary.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021.

27-20.2-03. Jurisdiction.

  1. The juvenile court has exclusive original jurisdiction of the following proceedings, which are governed by this chapter:
    1. Proceedings in which a child is alleged to be delinquent, a child in need of services, or a child in need of services or protection under this chapter or chapter 27-20.4;
    2. Proceedings for the termination of parental rights except if a part of an adoption proceeding under chapter 27-20.3;
    3. Proceedings arising under section 27-20.3-16;
    4. Civil forfeiture proceedings arising under chapter 19-03.1 or section 29-31.1-04 for which a child is alleged to have possessed forfeitable property. The juvenile court shall conduct the proceedings in accordance with the procedures provided for under sections 19-03.1-36 through 19-03.1-37; and
    5. Proceedings for the guardianship of a child under chapter 27-20.1, except the testamentary appointment of a guardian for a minor governed by chapter 30.1-27.
  2. The juvenile court also has exclusive original jurisdiction of the following proceedings, which are governed by the laws relating to those proceedings without regard to the other provisions of this chapter:
    1. Proceedings to obtain judicial consent to the marriage, employment, or enlistment in the armed services of a child, if consent is required by law;
    2. Proceedings under the interstate compact on juveniles;
    3. Proceedings under the interstate compact on the placement of children; and
    4. Proceedings arising under section 50-06-06.13 to obtain a judicial determination that the placement of a severely emotionally disturbed child in an out-of-home treatment program is in the best interests of the child.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021.

27-20.2-04. Juvenile court personnel.

  1. The supreme court may provide for the appointment by administrative and personnel rules of the necessary juvenile court officers, clerical personnel, and other specialized personnel within the limits of legislative appropriations to assist the juvenile court in carrying out the juvenile probation and supervisor functions of the juvenile court.
  2. Detention center facilities and personnel must be funded by the county.
  3. All salaries, per diem, and other compensation payable to juvenile court personnel, all necessary books, forms, stationery, office supplies and equipment, postage, telephone, and travel, and other necessary expenses incurred in carrying out the provisions of this chapter must be borne by the state, except for suitable quarters for conducting official business and lights and fuel which must be funded by the county and except as provided by subsection 1 of section 27-20.2-19.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021.

27-20.2-05. Powers and duties of the director of juvenile court.

  1. For the purpose of carrying out the objectives and purposes of this chapter and subject to the limitations of this chapter or imposed by the court, a director shall:
    1. Make investigations, reports, and recommendations to the juvenile court.
    2. Receive and examine referrals and charges of delinquency, a child in need of services, or a child in need of protection for the purpose of considering the commencement of proceedings under this chapter.
    3. Make a determination upon intake of referrals regarding the appropriate manner to handle delinquent conduct, or a child in need of services or a child in need of protection by use of nonjudicial adjustments or formal court processes.
    4. Supervise and assist a child placed on probation for delinquency or a child in need of services, or both.
    5. Make appropriate referrals to other private or public agencies of the community if assistance of the agencies appears to be needed or desirable.
    6. Issue a temporary custody order concerning a child who is referred to the director’s supervision or care as a delinquent or a child in need of services or protection. Except as provided by this chapter, a director does not have the powers of a law enforcement officer.
    7. Take acknowledgments of instruments for the purpose of this chapter.
    8. Make such temporary order not to exceed ninety-six hours for the custody and control of a child alleged to be in need of services or protection as may be deemed appropriate. The order must be reduced to writing within twenty-four hours, excluding holidays and weekends.
    9. Perform all other functions designated by this chapter or under section 27-05-30 or by order of the court pursuant to such law, including, if qualified, the order of a referee.
    10. Issue an order to a law enforcement authority to transport a child to and from a specified location.
    11. Receive and examine requests for review of a child’s placement at a qualified residential treatment program under the federal Family First Prevention Services Act [Pub. L. 115-123; 132 Stat. 64; 42 U.S.C. 675].
    12. Receive and examine petitions to establish, modify, or terminate a guardianship of a minor under chapter 27-20.1.
  2. Any of the foregoing functions may be performed in another state if authorized by the court of this state and permitted by the laws of the other state.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021.

27-20.2-06. Commencement of proceedings.

A proceeding under this chapter may be commenced:

  1. By transfer of a case from another court as provided in section 27-20.2-07; or
  2. In other cases by the filing of a petition as provided in this chapter. The petition and all other documents in the proceeding must be entitled “In the interest of _______________, a child”. If a child is in shelter care, the petition must be filed within thirty days of the shelter care, this is the date on which the child was removed both physically and legally from the parents, legal guardians, or custodians.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021.

27-20.2-07. Transfer from other courts.

If it appears to the court in a criminal proceeding, except for an offense transferred under section 27-20.4-20, that the defendant is a child subject to the jurisdiction of the juvenile court, the court immediately shall transfer the case to the juvenile court together with a copy of the accusatory pleading and other papers, documents, and transcripts of testimony relating to the case. The court shall order that the defendant be taken immediately to the juvenile court or to a place of detention designated by the juvenile court, or release the defendant to the custody of the defendant’s parent, guardian, custodian, or other person legally responsible for the defendant, to be brought before the juvenile court at a time designated by that court. The accusatory pleading may serve in lieu of a petition in the juvenile court unless that court directs the filing of a petition.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021.

27-20.2-08. Nonjudicial adjustment — Diversion.

Before an informal adjustment is held or a petition filed, the director of juvenile court or designee may impose requirements in lieu of further proceedings for the conduct and control of the child with a diversion.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021.

27-20.2-09. Nonjudicial adjustment — Informal adjustment.

  1. Before a petition is filed, the director of juvenile court or designee may give counsel and advice to the parties and impose conditions for the conduct and control of the child in lieu of further proceedings with a view to an informal adjustment if it appears:
    1. The admitted facts bring the case within the jurisdiction of the court;
    2. Information, advice, and conditions, if any, for the conduct and control of the child without an adjudication would be in the best interest of the public and the child; and
    3. The child and the child’s parents, guardian, or other custodian consent to the counsel and advice with knowledge that consent is not obligatory.
  2. If a victim is identified in the referral, the court must give reasonable written notice of the informal adjustment to the victim.
  3. The giving of information and advice and any conditions imposed for the conduct and control of the child may not extend beyond six months from the day commenced unless extended by the court for an additional period not to exceed six months and does not authorize the detention of the child if not otherwise permitted by this chapter. If the child admits to driving or being in actual physical control of a vehicle in violation of section 39-08-01 or an equivalent ordinance, the child may be required to pay a fine as a condition imposed under this section.
  4. An incriminating statement made by a child to the juvenile court officer or designee giving information and advice incident to the giving of counsel and advice may not be used against the child over objection in any proceeding or as part of a risk and need screening or assessment process.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021.

27-20.2-10. Venue.

Except as provided in sections 27-20.3-03 and 27-20.4-03, a proceeding in this chapter may be commenced in the county in which the child resides or the county in which the acts constituting the alleged conduct occurred.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021.

27-20.2-11. Transfer to another juvenile court within the state.

If the child resides in a county of the state and the proceeding is commenced in a court of another county, the court, on motion of a party or on motion of the court made before final disposition and in consultation with the court in the other county, may transfer the proceeding to the county of the child’s residence for further action. Like transfer may be made if the residence of the child changes pending the proceeding. The proceeding must be transferred if the child has been adjudicated delinquent or a child in need of services and other proceedings involving the child are pending in the juvenile court of the county of the child’s residence.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021.

27-20.2-12. Right to counsel.

  1. Except as provided in section 27-20.1-09, a child alleged to be within the jurisdiction of the court in an action arising under chapters 27-20.1, 27-20.2, 27-20.3, and 27-20.4 has the right to be represented by counsel in all proceedings in which a petition has been filed. Counsel for the child must be appointed, regardless of income, unless counsel is retained for the juvenile, in any proceeding in which the juvenile is alleged to be:
    1. Delinquent;
    2. A child in need of services; or
    3. A child in need of protection if the child is of sufficient age and competency to assist counsel.
  2. A child may waive the right to counsel in a juvenile delinquency proceeding if the child, who is fourteen years of age or older and the court has determined the waiver is knowing, voluntary, and intelligent. The waiver must be made on the record. If a child waives counsel for a hearing, the child must be informed of the right to revoke the waiver and request counsel at all subsequent hearings.
  3. The court shall require payment for reimbursement of counsel appointed pursuant to this section from a person that has legal care, custody, or control of the child. The court must include this finding in the findings of fact and order for disposition.
  4. A child’s parent, legal guardian, or custodian is entitled to counsel upon the filing of an application for counsel and a determination of indigency. If a party appears without counsel, the court shall determine whether the party knows the party may be represented by counsel and that the party is entitled to counsel at public expense if indigent. The court may continue the proceeding to enable a party to obtain counsel. A child’s parent, legal guardian, or custodian determined to be indigent is entitled to counsel:
    1. At a detention hearing;
    2. At the dispositional stage of a juvenile delinquency matter;
    3. At all proceedings in a child in need of services or protection; or
    4. In a permanency or review of an order entered in any of the proceedings under subdivision a, b, or c.
  5. The child may elect to be represented by counsel for a nonjudicial adjustment.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021.

27-20.2-13. Other basic rights.

  1. A party is entitled to the opportunity to introduce evidence and otherwise be heard in the party’s own behalf and to cross-examine adverse witnesses.
  2. A child charged with a delinquent act need not be a witness against or otherwise incriminate oneself. An extrajudicial statement, if obtained in the course of violation of this chapter or which would be constitutionally inadmissible in a criminal proceeding, may not be used against a child. Evidence illegally seized or obtained may not be received over objection to establish the allegations made against a child. A confession validly made by a child out of court is insufficient to support an adjudication of delinquency unless the confession is corroborated in whole or in part by other evidence.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021.

27-20.2-14. Orders directed to parents or guardians.

Every parent or guardian has an obligation and must participate in any treatment of the parent’s or guardian’s child as ordered by the juvenile court.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021.

27-20.2-15. Indian child welfare — Active efforts and procedures.

  1. As used in this section:
    1. “Active efforts” means affirmative, active, thorough, and timely efforts intended primarily to maintain or reunite an Indian child with the child’s family. Active efforts are required if the federal Indian Child Welfare Act of 1978 [25 U.S.C. 1901 through 1963] applies or may apply, including during the verification process. If an agency is involved in the child-custody proceeding, active efforts must involve assisting the parent or parents or Indian custodian through the steps of a case plan and with accessing or developing the resources necessary to satisfy the case plan. To the maximum extent possible, active efforts should be provided in a manner consistent with the prevailing social and cultural conditions and way of life of the Indian child’s tribe and should be conducted in partnership with the Indian child and the Indian child’s parents, extended family members, Indian custodians, and tribe. Active efforts are to be tailored to the facts and circumstances of the case. The term includes:
      1. Conducting a comprehensive assessment of the circumstances of the Indian child’s family, with a focus on safe reunification as the most desirable goal, with ongoing timely assessment to determine if the threat is resolved and placement of the child can be returned to the custodian;
      2. Identifying appropriate services and helping the parents to overcome barriers, including actively assisting the parents in obtaining such services; (3) Identifying, notifying, and inviting representatives of the Indian child’s tribe to participate in providing support and services to the Indian child’s family and in family team meetings, permanency planning, and resolution of placement issues;
      3. Identifying, notifying, and inviting representatives of the Indian child’s tribe to participate in providing support and services to the Indian child’s family and in family team meetings, permanency planning, and resolution of placement issues;
      4. Conducting or causing to be conducted a diligent search for the Indian child’s extended family members, and contacting and consulting with extended family members to provide family structure and support for the Indian child and the Indian child’s parents;
      5. Offering and employing available and culturally appropriate family preservation strategies and facilitating the use of remedial and rehabilitative services provided by the child’s tribe;
      6. Taking steps to keep siblings together whenever possible;
      7. Supporting regular visits with parents or Indian custodians in the most natural setting possible as well as trial home visits of the Indian child during any period of removal, consistent with the need to ensure the health, safety, and welfare of the child;
      8. Identifying community resources, including housing, financial, transportation, mental health, substance abuse, and peer support services and actively assisting the Indian child’s parents or, if appropriate, the child’s family, in utilizing and accessing those resources;
      9. Monitoring progress and participation in services;
      10. Considering alternative ways to address the needs of the Indian child’s parents and if appropriate, the family, if the optimum services do not exist or are not available; and
      11. Providing post-reunification services and monitoring.
    2. “Extended family member” means a relationship defined by the law or custom of the Indian child’s tribe or, in the absence of such law or custom, means an individual who has reached the age of eighteen and who is the Indian child’s grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent.
    3. “Indian” means an individual who is a member of an Indian tribe, or who is a native and a member of a regional corporation as defined in 43 U.S.C. 1606.
    4. “Indian child” means an unmarried individual who is under the age of eighteen and is either a member of an Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.
    5. “Indian child’s tribe” means the Indian tribe in which an Indian child is a member or eligible for membership or, in the case of an Indian child who is a member of or eligible for membership in more than one tribe, the Indian tribe with which the Indian child has the more significant contacts.
    6. “Indian custodian” means any Indian individual who has legal custody of an Indian child under tribal law or custom or under state law or to whom temporary physical care, custody, and control has been transferred by the parent of the child.
    7. “Indian tribe” means an Indian tribe, band, nation, or other organized Indian group or community of Indians recognized as eligible for services provided to Indians by the United States secretary of the interior because of their status as Indians, including any Alaska native village as defined in 43 U.S.C. 1602(c).
    8. “Parent” means any biological parent or parents of an Indian child or any Indian individual who has lawfully adopted an Indian child, including adoptions under tribal law or custom. The term does not include the unwed father if paternity has not been acknowledged or established.
    9. “Termination of parental rights” means any action resulting in the termination of the parent-child relationship. The term does not include a placement based upon an act by an Indian child which, if committed by an adult, would be deemed a crime or a placement upon award of custody to one of the child’s parents in a divorce proceeding.
  2. Before removal of an Indian child from the custody of a parent or Indian custodian for purposes of involuntary foster care placement or the termination of parental rights over an Indian child, the court shall find that active efforts have been made to provide remedial services and rehabilitative services designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. The court may not order the removal unless evidence of active efforts shows there has been a vigorous and concerted level of casework beyond the level that would constitute reasonable efforts under section 27-20.3-26. Reasonable efforts may not be construed to be active efforts. Active efforts must be made in a manner that takes into account the prevailing social and cultural values, conditions, and way of life of the Indian child’s tribe. Active efforts must utilize the available resources of the Indian child’s extended family, tribe, tribal and other relevant social service agencies, and individual Indian caregivers.
  3. The court may order the removal of the Indian child for involuntary foster case placement only if the court determines, by clear and convincing evidence, that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage or harm to the child. Evidence must show a causal relationship between the particular conditions in the home and the likelihood that continued custody of the child will result in serious emotional or physical damage or harm to the particular child who is the subject of the proceeding. Poverty, isolation, custodian age, crowded or inadequate housing, substance use, or nonconforming social behavior does not by itself constitute clear and convincing evidence of imminent serious emotional or physical damage or harm to the child. As soon as the threat has been removed and the child is no longer at risk, the state should terminate the removal, by returning the child to the parent while offering a solution to mitigate the situation that gave rise to the need for emergency removal and placement.
  4. The court may only order the termination of parental rights over the Indian child if the court determines, by evidence beyond a reasonable doubt, that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage or harm to the child.
  5. In considering whether to involuntarily place an Indian child in foster care or to terminate the parental rights of the parent of an Indian child, the court shall require that a qualified expert witness must be qualified to testify regarding whether the child’s continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage or harm to the child and should be qualified to testify as to the prevailing social and cultural standards of the Indian child’s tribe. An individual may be designated by the Indian child’s tribe as being qualified to testify to the prevailing social and cultural standards of the Indian child’s tribe. The court or any party may request the assistance of the Indian child’s tribe or the bureau of Indian affairs office serving the Indian child’s tribe in locating individuals qualified to serve as expert witnesses. The social worker regularly assigned to the Indian child may not serve as a qualified expert witness in child-custody proceedings concerning the child. The qualified expert witness should be someone familiar with the particular child and have contact with the parents to observe interaction between the parents, child, and extended family members. The child welfare agency and courts should facilitate access to the family and records to facilitate accurate testimony.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021.

27-20.2-16. Order of adjudication — Noncriminal.

  1. An order of disposition or other adjudication in a proceeding under this chapter is not a conviction of crime and does not impose any civil disability ordinarily resulting from a conviction or operate to disqualify the child in any civil service application or appointment. A child may not be committed or transferred to a penal institution or other facility used primarily for the execution of sentences of individuals convicted of a crime.
  2. The disposition of a child and evidence adduced in a hearing in juvenile court may not be used against the child in any proceeding in any court other than a juvenile court, whether before or after reaching majority, except for impeachment or in dispositional proceedings after conviction of a felony for the purposes of a presentence investigation and report.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021.

27-20.2-17. Rights and duties of legal custodian. [Effective through August 31, 2022]

  1. As used in this section, “sibling of the child entering foster care” means:
    1. A brother or sister who has at least one biological or adoptive parent in common;
    2. A fictive brother or sister with a significant bond as identified by the child or parent; or
    3. A child who would have been considered a sibling but for the termination or other disruption of parental rights, including a death of a parent.
  2. A legal custodian has:
    1. The right to the physical custody of the child and the right to determine the nature of the care, placement, and treatment of the child, including ordinary medical care as well as medical or surgical treatment for a serious physical condition or illness that in the opinion of a licensed physician requires prompt treatment, except for any limits the court may impose.
    2. The right and duty to provide for the care, protection, training, and education and the physical, mental, and moral welfare of the child, subject to the conditions and limitations of the order and to the remaining rights and duties of the child’s parents or guardian.
    3. A duty within thirty days after the removal of a child from the custody of the parent or parents of the child for the purpose of placement into foster care, to exercise due diligence to identify and provide notice to the following relatives: all parents of a sibling of the child entering foster care who have legal custody of the sibling, all adult grandparents, and any other adult suggested by the parents, subject to exceptions due to family or domestic violence, that:
      1. Specifies that the child has been or is being removed from the custody of the parent or parents of the child;
      2. Explains the options the relative has under federal, state, and local law to participate in the care and placement of the child, including any options that may be lost by failing to respond to the notice;
      3. Describes the requirements and standards to become a foster family home and the additional services and supports that are available for children placed in that home; and
      4. Describes how the relative of the child may enter an agreement with the department of human services and human service zone to receive a subsidized guardianship payment.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021.

27-20.2-17. Rights and duties of legal custodian. [Effective September 1, 2022]

  1. As used in this section, “sibling of the child entering foster care” means:
    1. A brother or sister who has at least one biological or adoptive parent in common;
    2. A fictive brother or sister with a significant bond as identified by the child or parent; or
    3. A child who would have been considered a sibling but for the termination or other disruption of parental rights, including a death of a parent.
  2. A legal custodian has:
    1. The right to the physical custody of the child and the right to determine the nature of the care, placement, and treatment of the child, including ordinary medical care as well as medical or surgical treatment for a serious physical condition or illness that in the opinion of a licensed physician requires prompt treatment, except for any limits the court may impose.
    2. The right and duty to provide for the care, protection, training, and education and the physical, mental, and moral welfare of the child, subject to the conditions and limitations of the order and to the remaining rights and duties of the child’s parents or guardian.
    3. A duty within thirty days after the removal of a child from the custody of the parent or parents of the child for the purpose of placement into foster care, to exercise due diligence to identify and provide notice to the following relatives: all parents of a sibling of the child entering foster care who have legal custody of the sibling, all adult grandparents, and any other adult suggested by the parents, subject to exceptions due to family or domestic violence, that:
      1. Specifies that the child has been or is being removed from the custody of the parent or parents of the child;
      2. Explains the options the relative has under federal, state, and local law to participate in the care and placement of the child, including any options that may be lost by failing to respond to the notice;
      3. Describes the requirements and standards to become a foster family home and the additional services and supports that are available for children placed in that home; and
      4. Describes how the relative of the child may enter an agreement with the department of health and human services and human service zone to receive a subsidized guardianship payment.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021; 2021, ch. 245, § 22, effective September 1, 2022.

27-20.2-18. Guardian ad litem — Immunity.

The court at any stage of a proceeding under this chapter, on application of a party or on motion of the court, shall appoint a guardian ad litem for a child who is a party to the proceeding if the child has no parent, guardian, or custodian appearing on the child’s behalf or the interests of the parent, guardian, or custodian conflict with the child’s or in any other case in which the interests of the child require a guardian. A party to the proceeding or that party’s employee or representative may not be appointed. A guardian ad litem appointed under this section is immune from civil liability for damages for any act or omission arising out of that individual’s duties and responsibilities as a guardian ad litem, unless the act or omission constitutes gross or willful negligence or gross or willful misconduct.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021.

27-20.2-19. Costs and expenses for care of child.

  1. The following expenses are a charge upon the funds of the county or human service zone upon certification of the expenses by the court:
    1. The cost of medical and other examinations and treatment of a child ordered by the court.
    2. The cost of care and support of a child committed by the court to the legal custody of a public agency other than an institution for delinquent children or to a private agency or individual other than a parent.
    3. The cost of any necessary transportation for medical and other examinations and treatment of a child ordered by the court unless the child is in the legal custody of a state agency.
    4. The cost of a guardian ad litem under subsection 5 of section 27-20.1-16 or section 30.1-27-06 or the cost of an attorney under subsection 6 of section 27-20.1-16 if the court finds the parent’s or child’s estate is insufficient to meet the cost.
  2. The commission on legal counsel for indigents shall pay reasonable compensation for services and related expenses of counsel provided at public expense for a party and the supreme court shall pay reasonable compensation for a guardian ad litem. The attorney general shall pay the witness fees, mileage, and travel expense of witnesses incurred in the proceedings under this chapter in the amount and at the rate provided for in section 31-01-16, except the commission on legal counsel for indigents shall pay the witness fees, mileage, and travel expenses of witnesses subpoenaed by counsel employed by or contracted with the commission for proceedings under this chapter in the amount and at the rate provided for in section 31-01-16. Expenses of the state include the cost of any necessary transportation for medical and other examinations and treatment of a child ordered by the court if the child is in the legal custody of a state agency in which case the cost must be reimbursed to the county or human service zone by that state agency at the state mileage rate, excluding meals and lodging, plus twenty-nine cents per mile.
  3. If, after due notice to the parents or other persons legally obligated to care for and support the child, and to a child over the age of eighteen, and after affording the parents, other persons, and children over eighteen years of age an opportunity to be heard, the court finds that the parents, other persons, or a child over eighteen years of age is financially able to pay all or part of the costs and expenses stated in subsection 1, and expenses payable by the supreme court under subsection 2, the court may order the party to pay the same and prescribe the manner of payment. Unless otherwise ordered, payment shall be made to the clerk of court for remittance to the person to which compensation is due, or if the costs and expenses have been paid by the county, human service zone, or the state to the county treasurer of the county, the county treasurer of the host county, or to the state treasurer.
  4. Unless the court finds there is no likelihood the party is or will be able to pay attorney’s fees and expenses, the court, in the order or judgment following a hearing under this chapter, shall order the parents or other persons legally obligated to care for and support the child, and the child if over the age of eighteen, to reimburse the presumed amount of indigent defense costs and expenses, as determined by the commission on legal counsel for indigents, and shall notify the party of the right to a hearing on the reimbursement amount. If the party or the state requests a hearing within thirty days of receiving notice under this subsection, the court shall schedule a hearing at which the actual amount of attorney’s fees and expenses must be shown. In determining the amount of reimbursement and method of payment, the court shall consider the financial resources of the party and the nature of the burden that reimbursement of costs and expenses will impose.
  5. A party who is required to reimburse indigent defense costs and expenses and who is not willfully in default in that reimbursement may at any time petition the court to waive reimbursement of all or any portion of the attorney’s fees and expenses. If the court is satisfied reimbursement of the amount due will impose undue hardship on the party or the party’s immediate family, the court may waive reimbursement of all or any portion of the amount due or modify the method of payment.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021.

27-20.2-20. Protective order.

At any stage of the proceedings, upon application of a party or on the court’s own motion, the court may make an order restraining or otherwise controlling the conduct of a person if:

  1. The court finds that the conduct:
    1. Is or may be detrimental or harmful to the child; or
    2. Will tend to defeat the execution of an order of disposition; and
  2. Notice of the application or motion and the grounds for the appropriate motion and an opportunity to be heard have been given to the person against which the order is directed.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021.

27-20.2-21. Inspection of court files and records — Penalty. [Effective through August 31, 2022]

  1. Except as provided in this section, all files and records of the juvenile court, whether in the office of the clerk of court or juvenile court, of a proceeding under this chapter are closed to the public. Juvenile court files and records are open to inspection only by:
    1. The judge and staff of the juvenile court.
    2. The parties to the proceeding or the parties’ counsel or the guardian ad litem of any party.
    3. A public or private agency or institution providing supervision or having custody of the child under order of the juvenile court which must be given a copy of the findings and order of disposition when the agency or institution receives custody of the child. If a case involves the federal Indian Child Welfare Act of 1978 [25 U.S.C. 1901 through 1963], the agency or institution having custody of the child shall serve the appropriate Indian Child Welfare Act service agent, tribe or tribal designee, or an Indian Child Welfare Act qualified expert witness with the findings and order of disposition.
    4. Any court and the court’s probation and other officials or professional staff and the attorney for the defendant for use in preparing a presentence report in a criminal case in which the defendant is convicted and who, before the criminal case, had been a party to the proceeding in juvenile court.
    5. The professional staff of the uniform crime victims compensation program if necessary for the discharge of the duties of the staff pursuant to chapter 54-23.4.
    6. A staff member of the division of children and family services of the department of human services or a law enforcement officer if necessary for the performance of that staff member’s duties under section 50-11.1-06.2 or the federal National Child Protection Act of 1993 [Pub. L. 103-209; 107 Stat. 2490; 42 U.S.C. 5119 et seq.].
    7. An employee or agent of the department of human services if necessary for performance of that individual’s duty under chapter 50-11 or 50-11.1 to investigate the background of an individual living or working in the facility, home, or residence for which licensure is sought.
    8. A criminal justice agency if the juvenile is required to register under section 12.1-32-15.
    9. The staff of a children’s advocacy center if the juvenile or a victim of the child has been referred for or has received services at the children’s advocacy center.
    10. A victim of the delinquent child or the victim’s guardian. All records including medical, educational, and school information must be redacted before inspection. For purposes of this subdivision, only records pertaining to the specific offense between the victim and the delinquent child may be inspected.
    11. The information technology department to the extent authorized by the supreme court for use in the statewide longitudinal data system.
  2. Juvenile court files and records are also open to inspection with written leave of a juvenile court judge or judicial referee to whom juvenile court matters have been referred:
    1. Upon a showing in writing of a legitimate interest in a proceeding or in the work of the juvenile court, but only to the extent necessary to respond to the legitimate interest; and
    2. By the principal of any public or private school that is a member of the North Dakota high school activities association, or the superintendent of any school district that has one or more schools involved in the association, but only to the extent necessary to enforce the rules and regulations of the North Dakota high school activities association.
  3. In a proceeding under this chapter, if the juvenile court finds a child committed a delinquent act that constitutes a violation of a law or local ordinance governing the operation of a motor vehicle or a delinquent act of manslaughter or negligent homicide caused by the child’s operation of a motor vehicle, the juvenile court shall report the finding to the director of the department of transportation within ten days.
  4. Following an adjudication of delinquency for an offense that would be a felony if committed by an adult, the child’s school principal, chief administrative officer, or designated school guidance counselor, if requested, must be allowed access to the disposition order. Any other juvenile court files and records of a child may be disclosed to a superintendent or principal of the school in which the child is currently enrolled or in which the child wishes to enroll if the child’s documented behavior appears to present a danger to self or to the students or staff of the school.
  5. Following an adjudication of delinquency for an offense that results in the prohibitions included in subsection 1 or 2 of section 62.1-02-01, if requested, a law enforcement officer must be allowed access to the disposition order.
  6. The juvenile court may notify a referring agency of the disposition of a case.
  7. Notwithstanding that juvenile court records are closed to the public, nothing in this section may be construed to limit the release upon request of general information not identifying the identity of any juvenile, witness, or victim in any proceeding under this chapter. Files in the clerk of court’s office are open to public inspection if the related hearing was open to the public under section 27-20.3-13.
  8. To the extent necessary to provide victim services or benefits under chapter 12.1-41, the judge and staff of the juvenile court may disclose information to refer a child, who may be a victim of human trafficking, to a program for runaway and homeless children located in the state and approved by the juvenile court of jurisdiction. Information disclosed under this subsection must remain confidential.
  9. An individual with access or authorization to inspect juvenile court files and records under this section may not share the information contained in the files and records with any other person not authorized by law. An individual who violates this subsection is guilty of a class B misdemeanor.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021; 2021, 1st Sp. Sess. ch. 550, § 3, effective December 1, 2021.

27-20.2-21. Inspection of court files and records — Penalty. [Effective September 1, 2022]

  1. Except as provided in this section, all files and records of the juvenile court, whether in the office of the clerk of court or juvenile court, of a proceeding under this chapter are closed to the public. Juvenile court files and records are open to inspection only by:
    1. The judge and staff of the juvenile court.
    2. The parties to the proceeding or the parties’ counsel or the guardian ad litem of any party.
    3. A public or private agency or institution providing supervision or having custody of the child under order of the juvenile court which must be given a copy of the findings and order of disposition when the agency or institution receives custody of the child. If a case involves the federal Indian Child Welfare Act of 1978 [25 U.S.C. 1901 through 1963], the agency or institution having custody of the child shall serve the appropriate Indian Child Welfare Act service agent, tribe or tribal designee, or an Indian Child Welfare Act qualified expert witness with the findings and order of disposition.
    4. Any court and the court’s probation and other officials or professional staff and the attorney for the defendant for use in preparing a presentence report in a criminal case in which the defendant is convicted and who, before the criminal case, had been a party to the proceeding in juvenile court.
    5. The professional staff of the uniform crime victims compensation program if necessary for the discharge of the duties of the staff pursuant to chapter 54-23.4.
    6. A staff member of the division of children and family services of the department of health and human services or a law enforcement officer if necessary for the performance of that staff member’s duties under section 50-11.1-06.2 or the federal National Child Protection Act of 1993 [Pub. L. 103-209; 107 Stat. 2490; 42 U.S.C. 5119 et seq.].
    7. An employee or agent of the department of health and human services if necessary for performance of that individual’s duty under chapter 50-11 or 50-11.1 to investigate the background of an individual living or working in the facility, home, or residence for which licensure is sought.
    8. A criminal justice agency if the juvenile is required to register under section 12.1-32-15.
    9. The staff of a children’s advocacy center if the juvenile or a victim of the child has been referred for or has received services at the children’s advocacy center.
    10. A victim of the delinquent child or the victim’s guardian. All records including medical, educational, and school information must be redacted before inspection. For purposes of this subdivision, only records pertaining to the specific offense between the victim and the delinquent child may be inspected.
    11. The information technology department to the extent authorized by the supreme court for use in the statewide longitudinal data system.
  2. Juvenile court files and records are also open to inspection with written leave of a juvenile court judge or judicial referee to whom juvenile court matters have been referred:
    1. Upon a showing in writing of a legitimate interest in a proceeding or in the work of the juvenile court, but only to the extent necessary to respond to the legitimate interest; and
    2. By the principal of any public or private school that is a member of the North Dakota high school activities association, or the superintendent of any school district that has one or more schools involved in the association, but only to the extent necessary to enforce the rules and regulations of the North Dakota high school activities association.
  3. In a proceeding under this chapter, if the juvenile court finds a child committed a delinquent act that constitutes a violation of a law or local ordinance governing the operation of a motor vehicle or a delinquent act of manslaughter or negligent homicide caused by the child’s operation of a motor vehicle, the juvenile court shall report the finding to the director of the department of transportation within ten days.
  4. Following an adjudication of delinquency for an offense that would be a felony if committed by an adult, the child’s school principal, chief administrative officer, or designated school guidance counselor, if requested, must be allowed access to the disposition order. Any other juvenile court files and records of a child may be disclosed to a superintendent or principal of the school in which the child is currently enrolled or in which the child wishes to enroll if the child’s documented behavior appears to present a danger to self or to the students or staff of the school.
  5. Following an adjudication of delinquency for an offense that results in the prohibitions included in subsection 1 or 2 of section 62.1-02-01, if requested, a law enforcement officer must be allowed access to the disposition order.
  6. The juvenile court may notify a referring agency of the disposition of a case.
  7. Notwithstanding that juvenile court records are closed to the public, nothing in this section may be construed to limit the release upon request of general information not identifying the identity of any juvenile, witness, or victim in any proceeding under this chapter. Files in the clerk of court’s office are open to public inspection if the related hearing was open to the public under section 27-20.3-13.
  8. To the extent necessary to provide victim services or benefits under chapter 12.1-41, the judge and staff of the juvenile court may disclose information to refer a child, who may be a victim of human trafficking, to a program for runaway and homeless children located in the state and approved by the juvenile court of jurisdiction. Information disclosed under this subsection must remain confidential.
  9. An individual with access or authorization to inspect juvenile court files and records under this section may not share the information contained in the files and records with any other person not authorized by law. An individual who violates this subsection is guilty of a class B misdemeanor.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021; 2021, 1st Sp. Sess. ch. 550, § 3, effective December 1, 2021; 2021, ch. 245, § 22, effective September 1, 2022.

27-20.2-22. Disclosure of information needed to apprehend child.

Notwithstanding any other provision of law, the name, photographs, fingerprints, or other identifying information of a child who is alleged to have committed a delinquent act involving actual or threat of serious bodily injury which would constitute a felony if committed by an adult or who left without authorization from a secure detention facility may be released by law enforcement, the division of juvenile services, or the juvenile court for purposes of apprehending the child.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021.

27-20.2-23. Law enforcement and correctional facility records.

  1. Unless a charge of delinquency is transferred for criminal prosecution under section 27-20.4-20, the interest of national security requires, or the court otherwise orders in the interest of the child, the law enforcement and correctional facility records and files of a child alleged or found to be delinquent or in need of services or protection are not open to public inspection; but inspection of these records and files is permitted by:
    1. A juvenile court having the child before the court in any proceeding;
    2. Counsel for a party to the proceeding;
    3. The officers of public institutions or agencies to whom the child is or may be committed;
    4. Law enforcement officers of other jurisdictions if necessary for the discharge of official duties of the officers;
    5. A court in which the child is convicted of a criminal offense for the purpose of a presentence report or other dispositional proceeding, or by officials of correctional facilities to which the child is detained or committed, or by the parole board, the governor, or the pardon advisory board, if one has been appointed, in considering the child’s parole or discharge or in exercising supervision over the child;
    6. The professional staff of the uniform crime victims compensation program if necessary for the discharge of the duties of the professional staff pursuant to chapter 54-23.4; and
    7. A superintendent, assistant superintendent, principal, or designee of the school in which the child is currently enrolled or of a school in which the child wishes to enroll.
  2. Notwithstanding that law enforcement records and files of a child alleged or found to be delinquent or in need of services or protection are not open to public inspection, this section does not limit the release of general information that does not identify the identity of the child.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021.

27-20.2-24. Children’s fingerprints, photographs.

  1. A child under fourteen years of age may not be fingerprinted in the investigation of a crime except as provided in this section. Fingerprints of a child who is referred to the court may be taken and filed by law enforcement officers in investigating the commission of the following crimes: murder, manslaughter, gross sexual imposition, robbery, aggravated assault, burglary, theft, forgery, and unlawful possession or use of a handgun.
  2. Fingerprint files of children must be kept separate from those of adults. Copies of fingerprints known to be those of a child may be maintained locally and copies may be sent to a central state depository but may not be sent to a federal depository unless needed in the interest of national security.
  3. Fingerprint files of children may be inspected by law enforcement officers if necessary for the discharge of official duties of law enforcement officers. Other inspections may be authorized by the court in individual cases upon a showing it is necessary in the public interest.
  4. Fingerprints of a child are considered a part of the child’s juvenile or adult investigative file and must be removed from the state and local files and destroyed in accordance with section 27-20.2-25.
  5. If latent fingerprints are found during the investigation of an offense and a law enforcement officer has probable cause to believe the latent fingerprints are those of a particular child, the officer may fingerprint the child regardless of age or offense for purposes of immediate comparison with the latent fingerprints. If the comparison is negative, the fingerprint card and other copies of the fingerprints taken must be destroyed immediately. If the child is not referred to the court, the fingerprints must be destroyed immediately.
  6. A child may be photographed by a law enforcement officer at the time of arrest for the crimes of murder, manslaughter, gross sexual imposition, robbery, aggravated assault, burglary, theft, forgery, or unlawful possession or use of a handgun. The photograph must be destroyed if the child is not referred to the juvenile court. If a court finds facts that would justify a finding that a child at least fourteen years of age at the time of the offense is delinquent and the finding involves the unlawful use or possession of a handgun or the commission of an act proscribed by the criminal laws of this state and punishable as a felony or a class A misdemeanor committed for the benefit of, at the direction of, or in association or affiliation with any criminal street gang, with the intent to promote, further, or assist in the activities of a criminal gang, the juvenile court shall order upon the request of the state’s attorney the taking and retention of a photograph of the child for purposes of identification. Photographs of children under this subsection may be maintained on a local basis and sent to a central state depository but must be maintained separate from those of adults and must be destroyed in accordance with section 27-20.2-25.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021.

27-20.2-25. Destruction of juvenile court records. [Effective through August 31, 2022]

  1. Except as otherwise required under section 25-03.3-04, all juvenile court records must be retained and disposed of pursuant to rules and policies established by the North Dakota supreme court.
  2. Upon the final destruction of a file or record, the proceeding must be treated as if the proceeding never occurred. The juvenile court shall notify each agency named in the file or record of the destruction. All index references, except those which may be made by the attorney general and the directors of the department of transportation, the department of human services, the department of corrections and rehabilitation, the commission on legal counsel for indigents and its public defender offices, law enforcement agencies, and human service zones, must be deleted. Each agency, except the attorney general and the directors of the department of transportation, the department of human services, the department of corrections and rehabilitation, the commission on legal counsel for indigents and its public defender offices, law enforcement agencies, and human service zones, upon notification of the destruction of a file or record, shall destroy all files, records, and references to the child’s apprehension, detention, and referral to the juvenile court and any record of disposition made by the juvenile court. The attorney general, the department of human services, the department of corrections and rehabilitation, the commission on legal counsel for indigents and its public defender offices, law enforcement agencies, and human service zones may not keep a juvenile file or record longer than is required by the records retention policy of that official, department, or agency. Upon inquiry in any matter the child, the court, and representatives of agencies, except the attorney general and the directors of the department of transportation, the department of human services, the department of corrections and rehabilitation, law enforcement agencies, and human service zones, properly shall reply that no record exists with respect to the child.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021.

27-20.2-25. Destruction of juvenile court records. [Effective September 1, 2022]

  1. Except as otherwise required under section 25-03.3-04, all juvenile court records must be retained and disposed of pursuant to rules and policies established by the North Dakota supreme court.
  2. Upon the final destruction of a file or record, the proceeding must be treated as if the proceeding never occurred. The juvenile court shall notify each agency named in the file or record of the destruction. All index references, except those which may be made by the attorney general and the directors of the department of transportation, the department of health and human services, the department of corrections and rehabilitation, the commission on legal counsel for indigents and its public defender offices, law enforcement agencies, and human service zones, must be deleted. Each agency, except the attorney general and the directors of the department of transportation, the department of health and human services, the department of corrections and rehabilitation, the commission on legal counsel for indigents and its public defender offices, law enforcement agencies, and human service zones, upon notification of the destruction of a file or record, shall destroy all files, records, and references to the child’s apprehension, detention, and referral to the juvenile court and any record of disposition made by the juvenile court. The attorney general, the department of health and human services, the department of corrections and rehabilitation, the commission on legal counsel for indigents and its public defender offices, law enforcement agencies, and human service zones may not keep a juvenile file or record longer than is required by the records retention policy of that official, department, or agency. Upon inquiry in any matter the child, the court, and representatives of agencies, except the attorney general and the directors of the department of transportation, the department of health and human services, the department of corrections and rehabilitation, law enforcement agencies, and human service zones, properly shall reply that no record exists with respect to the child.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021; 2021, ch. 245, § 22, effective September 1, 2022.

27-20.2-26. Appeals.

  1. An aggrieved party, including the state or a subdivision of the state, may appeal from a final order, judgment, or decree of the juvenile court to the supreme court by filing written notice of appeal within thirty days after entry of the order, judgment, or decree, or within any further time the supreme court grants, after entry of the order, judgment, or decree. The appeal must be heard by the supreme court upon the files, records, and minutes or transcript of the evidence of the juvenile court, giving appreciable weight to the findings of the juvenile court. The name of the child may not appear on the record on appeal.
  2. The appeal does not stay the order, judgment, or decree appealed from, but the supreme court may otherwise order on application and hearing consistent with this chapter if suitable provision is made for the care and custody of the child. If the order, judgment, or decree appealed from grants the custody of the child to, or withholds custody of the child from, one or more of the parties to the appeal, the appeal must be heard at the earliest practicable time.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021.

27-20.2-27. Rules of court.

The North Dakota supreme court may adopt rules of procedure governing proceedings under this chapter.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021.

27-20.2-28. In-state placement of juveniles — Exception.

Except for cases in which the specific necessary treatment is unavailable in the state or cases in which the appropriate treatment or services cannot be provided in a timely manner in the state, all juveniles in need of residential treatment or residential care placement must be placed in in-state residential facilities.

Source:

S.L. 2021, ch. 245, § 22, effective July 1, 2021.

CHAPTER 27-20.3 Child Welfare

27-20.3-05 Method of making a child in need of services referral. [Effective August 1, 2022]

Source:

S.L. 2021, hb1035, § 23, effective August 1, 2021.

27-20.3-01. Definitions. [Effective through August 31, 2022]

As used in this chapter:

  1. “Abandon” means:
    1. As to a parent of a child not in the custody of that parent, failure by the noncustodial parent significantly without justifiable cause:
      1. To communicate with the child; or
      2. To provide for the care and support of the child as required by law; or
    2. As to a parent of a child in that parent’s custody:
      1. To leave the child for an indefinite period without making firm and agreed plans, with the child’s immediate caregiver, for the parent’s resumption of physical custody;
      2. Following the child’s birth or treatment at a hospital, to fail to arrange for the child’s discharge within ten days after the child no longer requires hospital care; or
      3. Willfully to fail to furnish food, shelter, clothing, or medical attention reasonably sufficient to meet the child’s needs.
  2. “Abandoned infant” means a child who has been abandoned before reaching the age of one year.
  3. “Aggravated circumstances” means circumstances in which a parent:
    1. Abandons, tortures, chronically abuses, or sexually abuses a child;
    2. Fails to make substantial, meaningful efforts to secure treatment for the parent’s addiction, mental illness, behavior disorder, or any combination of those conditions for one year;
    3. Engages in conduct prohibited under sections 12.1-20-01 through 12.1-20-08 or chapter 12.1-27.2, in which a child is the victim or intended victim;
    4. Engages in conduct that constitutes one of the following crimes, or of an offense under the laws of another jurisdiction which requires proof of substantially similar elements:
      1. A violation of section 12.1-16-01, 12.1-16-02, 12.1-16-03, or 14-09-22 in which the victim is another child of the parent;
      2. Aiding, abetting, attempting, conspiring, or soliciting a violation of section 12.1-16-01, 12.1-16-02, or 12.1-16-03 in which the victim is a child of the parent; or
      3. A violation of section 12.1-17-02 in which the victim is a child of the parent and has suffered serious bodily injury;
    5. Engages or attempts to engage in conduct, prohibited under sections 12.1-17-01 through 12.1-17-04, in which a child is the victim or intended victim;
    6. In the case of a child age nine or older, has been incarcerated under a sentence for which the latest release date is after the child’s age of majority;
    7. Subjects the child to prenatal exposure to chronic or severe use of alcohol or any controlled substance as defined in chapter 19-03.1 in a manner not lawfully prescribed by a practitioner; or
    8. Allows the child to be present in an environment subjecting the child to exposure to a controlled substance, chemical substance, or drug paraphernalia as prohibited by section 19-03.1-22.2.
  4. “Attendant care” means a nonsecure holdover site for children in need of services who are in the custody of law enforcement and need constant short-term supervision on a preadjudicatory basis.
  5. “Child in need of protection” means a child who:
    1. Is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health, or morals, and the need for services or protection is not due primarily to the lack of financial means of the child’s parents, guardian, or other custodian;
    2. Has been placed for care or adoption in violation of law;
    3. Has been abandoned by the child’s parents, guardian, or other custodian;
    4. Is without proper parental care, control, or education as required by law, or other care and control necessary for the child’s well-being because of the physical, mental, emotional, or other illness or disability of the child’s parent or parents, and that such lack of care is not due to a willful act of commission or act of omission by the child’s parents, and care is requested by a parent;
    5. Is in need of treatment and whose parents, guardian, or other custodian have refused to participate in treatment as ordered by the juvenile court;
    6. Was subject to prenatal exposure to chronic or severe use of alcohol or any controlled substance as defined in chapter 19-03.1 in a manner not lawfully prescribed by a practitioner;
    7. Is present in an environment subjecting the child to exposure to a controlled substance, chemical substance, or drug paraphernalia as prohibited by section 19-03.1-22.2; or
    8. Is a victim of human trafficking as defined in title 12.1.
  6. “Child in need of services” means a child who:
    1. Is habitually and without justification truant from school subject to compulsory school attendance and is absent from school without an authorized excuse more than three days during a school year;
    2. Is habitually disobedient of the reasonable and lawful commands of the child’s parent, guardian, or other custodian, including running away, and is ungovernable or who is willfully in a situation dangerous or injurious to the health, safety, or morals of the child or others;
    3. Has committed an offense applicable only to a child, except for an offense committed by a minor fourteen years of age or older under subsection 2 of section 12.1-31-03 or an equivalent local ordinance or resolution; or
    4. Is under the age of fourteen years and has purchased, possessed, smoked, or used tobacco, a tobacco-related product, an electronic smoking device, or an alternative nicotine product in violation of subsection 2 of section 12.1-31-03. As used in this subdivision, “electronic smoking device” and “alternative nicotine product” have the same meaning as in section 12.1-31-03; and
    5. In any of the foregoing instances is in need of treatment or rehabilitation.
  7. “Custodian” means a person, other than a parent or legal guardian, which stands in loco parentis to the child and a person to which legal custody of the child has been given by order of a court.
  8. “Diversion” means an intervention strategy that redirects a child away from formal processing in the juvenile justice system, while still holding the child accountable for that child’s actions.
  9. “Fit and willing relative or other appropriate individual” means a relative or other individual who has been determined, after consideration of an assessment that includes a criminal history record investigation under chapter 50-11.3, to be a qualified individual under chapters 27-20.1 and 30.1-27, and who consents in writing to act as a legal guardian.
  10. “Home” as used in the phrase “to return home” means the abode of the child’s parent with whom the child formerly resided.
  11. “Human service zone” means a county or consolidated group of counties administering human services within a designated area in accordance with an agreement or plan approved by the department of human services.
  12. “Permanency hearing” means a hearing, conducted with respect to a child who is in foster care, to determine the permanency plan for the child which includes the following:
    1. Whether and, if applicable, when the child will be returned to the parent.
    2. Whether and, if applicable, when the child will be placed for adoption and the state will file a petition for termination of parental rights.
    3. Whether and, if applicable, when a fit and willing relative or other appropriate individual will be appointed as a legal guardian.
    4. Whether and, if applicable, to place siblings in the same foster care, relative, guardianship, or adoptive placement, unless it is determined that the joint placement would be contrary to the safety or well-being of any of the siblings.
    5. Whether and, if applicable, in the case of siblings removed from the home of the siblings who are not jointly placed, to provide for frequent visitation or other ongoing interaction between the siblings, unless it is determined to be contrary to the safety or well-being of any of the siblings.
    6. In cases in which a compelling reason has been shown that it would not be in the child’s best interests to return home, to have parental rights terminated, to be placed for adoption, to be placed with a fit and willing relative, or to be placed with a legal guardian, whether and, if applicable, when the child, aged sixteen or older, will be placed in another planned permanent living arrangement. The court shall:
      1. Ask the child whether the child has a desired permanency outcome of another planned permanent living arrangement;
      2. Make a judicial determination explaining why another planned permanent living arrangement is the best permanency plan for the child; and
      3. Identify the compelling reasons it continues not to be in the best interest of the child to return home, be placed for adoption, be placed with a legal guardian, or be placed with a fit and willing relative.
    7. In the case of a child who has been placed in foster care outside the state in which the home of the parents is located, or if the parents maintain separate homes, outside the state in which the home of the parent who was the child’s primary caregiver is located, whether out-of-state placements have been considered. If the child is currently in an out-of-state placement, the court shall determine whether the placement continues to be appropriate and in the child’s best interests.
    8. In the case of a child who has attained age fourteen, the services needed to assist the child to make the transition to successful adulthood.
  13. “Qualified residential treatment programs” mean residential child care facilities that provide a higher level of care which must use a trauma-informed treatment model and employ registered or licensed nursing staff and other licensed clinical staff to meet the treatment needs of children in out-of-home placement.
  14. “Referral” means a written report submitted to the director of juvenile court or the director of the human service zone concerning behavior without an arrest or taking into custody having occurred and the child remains in the parental home to be notified of any action taken by the director or human service zone as authorized in this chapter.
  15. “Relative” means:
    1. The child’s grandparent, great-grandparent, sibling, half-sibling, aunt, great-aunt, uncle, great-uncle, nephew, niece, or first cousin;
    2. An individual with a relationship to the child, derived through a current or former spouse of the child’s parent, similar to a relationship described in subdivision a;
    3. An individual recognized in the child’s community as having a relationship with the child similar to a relationship described in subdivision a; or
    4. The child’s stepparent.
  16. “Shelter care” means temporary care of a child in physically unrestricted facilities.

Source:

S.L. 2021, ch. 245, § 23, effective July 1, 2021.

27-20.3-01. Definitions. [Effective September 1, 2022]

As used in this chapter:

  1. “Abandon” means:
    1. As to a parent of a child not in the custody of that parent, failure by the noncustodial parent significantly without justifiable cause:
      1. To communicate with the child; or
      2. To provide for the care and support of the child as required by law; or
    2. As to a parent of a child in that parent’s custody:
      1. To leave the child for an indefinite period without making firm and agreed plans, with the child’s immediate caregiver, for the parent’s resumption of physical custody;
      2. Following the child’s birth or treatment at a hospital, to fail to arrange for the child’s discharge within ten days after the child no longer requires hospital care; or
      3. Willfully to fail to furnish food, shelter, clothing, or medical attention reasonably sufficient to meet the child’s needs.
  2. “Abandoned infant” means a child who has been abandoned before reaching the age of one year.
  3. “Aggravated circumstances” means circumstances in which a parent:
    1. Abandons, tortures, chronically abuses, or sexually abuses a child;
    2. Fails to make substantial, meaningful efforts to secure treatment for the parent’s addiction, mental illness, behavior disorder, or any combination of those conditions for one year;
    3. Engages in conduct prohibited under sections 12.1-20-01 through 12.1-20-08 or chapter 12.1-20-08, in which a child is the victim or intended victim;
    4. Engages in conduct that constitutes one of the following crimes, or of an offense under the laws of another jurisdiction which requires proof of substantially similar elements:
      1. A violation of section 12.1-16-01, 12.1-16-02, 12.1-16-03, or 14-09-22 in which the victim is another child of the parent;
      2. Aiding, abetting, attempting, conspiring, or soliciting a violation of section 12.1-16-01, 12.1-16-02, or 12.1-16-03 in which the victim is a child of the parent; or
      3. A violation of section 12.1-17-02 in which the victim is a child of the parent and has suffered serious bodily injury;
    5. Engages or attempts to engage in conduct, prohibited under sections 12.1-17-01 through 12.1-17-04, in which a child is the victim or intended victim;
    6. In the case of a child age nine or older, has been incarcerated under a sentence for which the latest release date is after the child’s age of majority;
    7. Subjects the child to prenatal exposure to chronic or severe use of alcohol or any controlled substance as defined in chapter 19-03.1 in a manner not lawfully prescribed by a practitioner; or
    8. Allows the child to be present in an environment subjecting the child to exposure to a controlled substance, chemical substance, or drug paraphernalia as prohibited by section 19-03.1-22.2.
  4. “Attendant care” means a nonsecure holdover site for children in need of services who are in the custody of law enforcement and need constant short-term supervision on a preadjudicatory basis.
  5. “Child in need of protection” means a child who:
    1. Is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health, or morals, and the need for services or protection is not due primarily to the lack of financial means of the child’s parents, guardian, or other custodian;
    2. Has been placed for care or adoption in violation of law;
    3. Has been abandoned by the child’s parents, guardian, or other custodian;
    4. Is without proper parental care, control, or education as required by law, or other care and control necessary for the child’s well-being because of the physical, mental, emotional, or other illness or disability of the child’s parent or parents, and that such lack of care is not due to a willful act of commission or act of omission by the child’s parents, and care is requested by a parent;
    5. Is in need of treatment and whose parents, guardian, or other custodian have refused to participate in treatment as ordered by the juvenile court;
    6. Was subject to prenatal exposure to chronic or severe use of alcohol or any controlled substance as defined in chapter 19-03.1 in a manner not lawfully prescribed by a practitioner;
    7. Is present in an environment subjecting the child to exposure to a controlled substance, chemical substance, or drug paraphernalia as prohibited by section 19-03.1-22.2; or
    8. Is a victim of human trafficking as defined in title 12.1.
  6. “Child in need of services” means a child who:
    1. Is habitually and without justification truant from school subject to compulsory school attendance and is absent from school without an authorized excuse more than three days during a school year;
    2. Is habitually disobedient of the reasonable and lawful commands of the child’s parent, guardian, or other custodian, including running away, and is ungovernable or who is willfully in a situation dangerous or injurious to the health, safety, or morals of the child or others;
    3. Has committed an offense applicable only to a child, except for an offense committed by a minor fourteen years of age or older under subsection 2 of section 12.1-31-03 or an equivalent local ordinance or resolution; or
    4. Is under the age of fourteen years and has purchased, possessed, smoked, or used tobacco, a tobacco-related product, an electronic smoking device, or an alternative nicotine product in violation of subsection of section 12.1-31-03. As used in this subdivision, “electronic smoking device” and “alternative nicotine product” have the same meaning as in section 12.1-31-03; and
    5. In any of the foregoing instances is in need of treatment or rehabilitation.
  7. “Custodian” means a person, other than a parent or legal guardian, which stands in loco parentis to the child and a person to which legal custody of the child has been given by order of a court.
  8. “Diversion” means an intervention strategy that redirects a child away from formal processing in the juvenile justice system, while still holding the child accountable for that child’s actions.
  9. “Fit and willing relative or other appropriate individual” means a relative or other individual who has been determined, after consideration of an assessment that includes a criminal history record investigation under chapter 50-11.3, to be a qualified individual under chapters 27-20.1 and 30.1-27, and who consents in writing to act as a legal guardian.
  10. “Home” as used in the phrase “to return home” means the abode of the child’s parent with whom the child formerly resided.
  11. “Human service zone” means a county or consolidated group of counties administering human services within a designated area in accordance with an agreement or plan approved by the department of health and human services.
  12. “Permanency hearing” means a hearing, conducted with respect to a child who is in foster care, to determine the permanency plan for the child which includes the following:
    1. Whether and, if applicable, when the child will be returned to the parent.
    2. Whether and, if applicable, when the child will be placed for adoption and the state will file a petition for termination of parental rights.
    3. Whether and, if applicable, when a fit and willing relative or other appropriate individual will be appointed as a legal guardian.
    4. Whether and, if applicable, to place siblings in the same foster care, relative, guardianship, or adoptive placement, unless it is determined that the joint placement would be contrary to the safety or well-being of any of the siblings.
    5. Whether and, if applicable, in the case of siblings removed from the home of the siblings who are not jointly placed, to provide for frequent visitation or other ongoing interaction between the siblings, unless it is determined to be contrary to the safety or well-being of any of the siblings.
    6. In cases in which a compelling reason has been shown that it would not be in the child’s best interests to return home, to have parental rights terminated, to be placed for adoption, to be placed with a fit and willing relative, or to be placed with a legal guardian, whether and, if applicable, when the child, aged sixteen or older, will be placed in another planned permanent living arrangement. The court shall:
      1. Ask the child whether the child has a desired permanency outcome of another planned permanent living arrangement;
      2. Make a judicial determination explaining why another planned permanent living arrangement is the best permanency plan for the child; and
      3. Identify the compelling reasons it continues not to be in the best interest of the child to return home, be placed for adoption, be placed with a legal guardian, or be placed with a fit and willing relative.
    7. In the case of a child who has been placed in foster care outside the state in which the home of the parents is located, or if the parents maintain separate homes, outside the state in which the home of the parent who was the child’s primary caregiver is located, whether out-of-state placements have been considered. If the child is currently in an out-of-state placement, the court shall determine whether the placement continues to be appropriate and in the child’s best interests.
    8. In the case of a child who has attained age fourteen, the services needed to assist the child to make the transition to successful adulthood.
  13. “Qualified residential treatment programs” mean residential child care facilities that provide a higher level of care which must use a trauma-informed treatment model and employ registered or licensed nursing staff and other licensed clinical staff to meet the treatment needs of children in out-of-home placement.
  14. “Referral” means a written report submitted to the director of juvenile court or the director of the human service zone concerning behavior without an arrest or taking into custody having occurred and the child remains in the parental home to be notified of any action taken by the director or human service zone as authorized in this chapter.
  15. “Relative” means:
    1. The child’s grandparent, great-grandparent, sibling, half-sibling, aunt, great-aunt, uncle, great-uncle, nephew, niece, or first cousin;
    2. An individual with a relationship to the child, derived through a current or former spouse of the child’s parent, similar to a relationship described in subdivision a;
    3. An individual recognized in the child’s community as having a relationship with the child similar to a relationship described in subdivision a; or
    4. The child’s stepparent.
  16. “Shelter care” means temporary care of a child in physically unrestricted facilities.

Source:

S.L. 2021, ch. 245, § 23, effective July 1, 2021; 2021, ch. 245, § 23, effective September 1, 2022.

27-20.3-02. Jurisdiction.

Jurisdiction as set forth in section 27-20.2-03 is applicable to this chapter.

Source:

S.L. 2021, ch. 245, § 23, effective July 1, 2021.

27-20.3-03. Venue.

Except as otherwise provided by this section, a proceeding under this chapter must be commenced in the county in which the child resides. If the need for services or protection are alleged, the proceeding may be brought in the county in which the child is present at the time the proceeding is commenced, the county in which the child has resided for the majority of the thirty days before the date of the alleged need for services or protection, or the county in which the alleged need for services or protection has occurred. The court shall determine the appropriate venue for a child in need of services or a child in need of protection based on the best interest of the child.

Source:

S.L. 2021, ch. 245, § 23, effective July 1, 2021.

27-20.3-04. Powers and duties of director of juvenile court.

  1. For the purpose of carrying out the objectives and purposes of this chapter and subject to the limitations of this chapter or imposed by the court, a director shall:
    1. Make investigations, reports, and recommendations to the juvenile court.
    2. Receive and examine referrals of a child in need of services or child in need of protection for the purpose of considering diversion of services.
    3. Make a determination upon intake of referrals regarding the appropriate manner to handle delinquent conduct, a child in need of services, or a child in need of protection under this chapter.
    4. Make appropriate referrals to other private or public agencies of the community if their assistance appears to be needed or desirable.
    5. Issue a temporary custody order concerning a child who is referred to the director’s supervision or care as a child in need of services or a child in need of protection. Except as provided by this chapter, a director does not have the powers of a law enforcement officer.
    6. Take acknowledgments of instruments for the purpose of this chapter.
    7. Make such temporary order not to exceed ninety-six hours for the custody and control of a child alleged to be in need of services or protection as may be deemed appropriate. The order must be reduced to writing within twenty-four hours, excluding holidays and weekends.
    8. Perform all other functions designated by this chapter or under section 27-05-30 or by order of the court, including, if qualified, those of a referee.
    9. Issue an order to a law enforcement authority to transport a child to and from a specified location.
    10. Receive and examine requests for review of a child’s placement at a qualified residential treatment program under the Family First Prevention Services Act [Pub. L. 115-123; 132 Stat. 64; 42 U.S.C. 675].
  2. Any of the foregoing functions may be performed in another state if authorized by the court of this state and permitted by the laws of the other state.

Source:

S.L. 2021, ch. 245, § 23, effective July 1, 2021.

27-20.3-05. Method of making a child in need of services referral. [Effective through July 31, 2022]

  1. A referral alleging a child is a child in need of services may be made by a parent, guardian or other custodian, a law enforcement officer, a school official, or any other person that has knowledge of the facts alleged and believes such facts are true.
  2. A referral alleging a child is a child in need of services under section 27-20.2-01 must be sent to the juvenile court.
  3. The referral must be set forth in writing and must set forth the following:
    1. The name, date of birth, and residence address of the child alleged to be a child in need of services;
    2. The names and residence addresses of the parent, guardian or legal custodian, any other family members, or any other individuals living within the child’s home;
    3. The name of any public institution or agency having the responsibility or ability to supply services alleged to be needed by the child; and
    4. Whether any of the matters required by this subsection are unknown.
  4. If a school official is filing a referral alleging a child is a child in need of services, information must be included which shows:
    1. The legally responsible school district has sought to resolve the expressed problem through all appropriate and available educational approaches; and
    2. The school district has sought to engage the parent, guardian, or legal custodian of such child in solving the problem but such person has been unwilling or unable to do so, that the problem remains, and that court intervention is needed.
  5. If a school official is filing a complaint alleging a child is a child in need of services involving a child who is eligible or suspected to be eligible for services under the federal Individuals with Disabilities Education Act of 1990 [20 U.S.C. 1400 et seq.] or Section 504 of the federal Rehabilitation Act of 1973 [29 U.S.C. 725], information must be included which demonstrates that the legally liable school district:
    1. Has determined the child is eligible or suspected to be eligible under the federal Individuals with Disabilities Education Act of 1990 [20 U.S.C. 1400 et seq.] or Section 504 of the federal Rehabilitation Act of 1973 [29 U.S.C. 725]; and
    2. Has reviewed for appropriateness the child’s current individualized education program and placement and has made modifications as appropriate.

Source:

S.L. 2021, ch. 245, § 23, effective July 1, 2021.

27-20.3-05 Method of making a child in need of services referral. [Effective August 1, 2022]

  1. A referral alleging a child is a child in need of services may be made by a parent, guardian or other custodian, a law enforcement officer, a school official, or any other person that has knowledge of the facts alleged and believes such facts are true.
  2. A referral alleging a child is a child in need of services under section 27-20.2-01 must be sent to the juvenile court.
  3. The referral must be set forth in writing and must set forth the following:
    1. The name, date of birth, and residence address of the child alleged to be a child in need of services;
    2. The names and residence addresses of the parent, guardian or legal custodian, any other family members, or any other individuals living within the child’s home;
    3. The name of any public institution or agency having the responsibility or ability to supply services alleged to be needed by the child; and
    4. Whether any of the matters required by this subsection are unknown.
  4. If a school official is filing a referral alleging a child is a child in need of services, information must be included which shows:
    1. The legally responsible school district has sought to resolve the expressed problem through all appropriate and available educational approaches; and
    2. The school district has sought to engage the parent, guardian, or legal custodian of such child in solving the problem but such person has been unwilling or unable to do so, that the problem remains, and that court intervention is needed.
  5. If a school official is filing a complaint alleging a child is a child in need of services involving a child who is eligible or suspected to be eligible for services under the federal Individuals with Disabilities Education Act of 1990 [20 U.S.C. 1400 et seq.] or Section 504 of the federal Rehabilitation Act of 1973 [29 U.S.C. 725], information must be included which demonstrates that the legally liable school district:
    1. Has determined the child is eligible or suspected to be eligible under the federal Individuals with Disabilities Education Act of 1990 [20 U.S.C. 1400 et seq.] or Section 504 of the federal Rehabilitation Act of 1973 [29 U.S.C. 725]; and
    2. Has reviewed for appropriateness the child’s current individualized education program and placement and has made modifications as appropriate.
  6. A referral alleging that a child is a child in need of services under section 27-20.2-01 must be sent to the applicable human service zone.

Source:

S.L. 2021, ch. 245, § 23, effective July 1, 2021; 2021, ch. 245, § 24, effective August 1, 2022.

27-20.3-06. Taking into protective custody.

  1. A child alleged to be in need of protection may be taken into protective custody:
    1. Pursuant to an order of the court under this chapter;
    2. By a law enforcement officer or designee if there are reasonable grounds to believe:
      1. The child is suffering from illness or injury or is in immediate danger from the child’s surroundings, and the child’s removal is necessary; or
      2. The child has run away from the child’s parents, guardian, or other custodian; or
    3. By order of the director made pursuant to section 27-20.3-04.
  2. The taking of a child into protective custody is not an arrest, except for the purpose of determining the validity of the arrest under the Constitution of North Dakota or the United States Constitution.
  3. A law enforcement officer may transport a child to and from attendant care.
  4. Without a compelling reason to the contrary, a court order transferring a child into custody must provide a reasonable period of time to facilitate a beneficial transition for the child and other parties involved.

Source:

S.L. 2021, ch. 245, § 23, effective July 1, 2021.

27-20.3-07. Shelter care of child.

A child taken into protective custody may not be placed in shelter care before the hearing on the petition unless the child’s care is required to protect a person or property of others or of the child or because the child may abscond or be removed from the jurisdiction of the court or because the child has no parent, guardian or custodian, or other person able to provide supervision and care for the child and return the child to the court if required, or an order for the child’s shelter care has been made by the court pursuant to this chapter.

Source:

S.L. 2021, ch. 245, § 23, effective July 1, 2021.

27-20.3-08. Release or delivery to court.

  1. A person taking a child into protective custody, with all reasonable speed and without first taking the child elsewhere, shall:
    1. Release the child to the child’s parent, guardian, custodian, or other responsible adult able and willing to assume custody of the child, upon that person’s promise to bring the child before the court if requested by the court, unless the child’s shelter care is warranted or required; or
    2. Bring the child before the court or deliver the child to a shelter care facility designated by the court or to a medical facility if the child is believed to suffer from a serious physical condition or illness that requires prompt treatment. The person taking the child into custody promptly shall give notice of taking the child into custody, together with a statement of the reason for taking the child into custody, to a parent, guardian, or other custodian and to the court. Any questioning of the child necessary to comply with this subdivision must conform to the procedures and conditions prescribed by this chapter and rules of court.
  2. If a parent, guardian, or other custodian, when requested, fails to bring the child before the court as provided in subsection 1, the court may issue a temporary custody order directing the child be taken into custody and brought before the court.
  3. If the petition is not filed, the child must be released from shelter care.

Source:

S.L. 2021, ch. 245, § 23, effective July 1, 2021.

27-20.3-09. Place of shelter care.

A child alleged to be in need of shelter care may be placed only in:

  1. A licensed foster home or a home approved by the court;
  2. A facility operated by a licensed child welfare agency; or
  3. Any other suitable place or facility, including a medical facility for the treatment of mental illness, alcoholism, or drug addiction, designated by the court.

Source:

S.L. 2021, ch. 245, § 23, effective July 1, 2021.

27-20.3-10. Release from shelter care — Hearing — Conditions of release.

  1. If a child is brought before the court or delivered to a shelter care facility designated by the court, the director, an intake officer, or other authorized officer of the court or human service zone immediately shall make an investigation and release the child unless it appears that the child’s shelter care is warranted or required under section 27-20.3-07. If there is reason to believe the child may be an Indian child and the federal Indian Child Welfare Act of 1978 [25 U.S.C. 1901 through 1963] may apply, the judge or referee may order the child be placed under the custody of the human service zone for a maximum of thirty days from the date of the emergency removal upon finding:
    1. A return of the child to the parent or Indian custodian would subject the child to imminent danger or harm;
    2. The court has been unable to transfer the proceeding to the appropriate Indian tribe; or
    3. Holding an adjudicatory hearing is not possible.
  2. If the child is not released, a judge or referee shall hold a shelter care hearing promptly and not later than ninety-six hours after the child is placed in shelter care to determine whether there is probable cause to believe that the child is in need of protection and whether the child’s shelter care is required under section 27-20.3-07. Reasonable notice, either oral or written, stating the time, place, and purpose of the shelter care hearing must be given to the child and, if able to be found, to the child’s parents, guardian, or other custodian. Before the commencement of the hearing, the court shall inform the parties of the rights of the parties to counsel and to counsel at public expense if the parties are indigent.
  3. If continued shelter care is required, the judge or referee may order that the child be kept in shelter care for no more than sixty days from the date the child was placed in shelter care.
  4. As a condition to the child’s release from shelter care, the court may order a parent, guardian, custodian, or any other member of the household in which the child resides to vacate the child’s residence if probable cause exists to believe that the parent, guardian, custodian, or other member of the household has committed a sexual offense with or against the child, pursuant to sections 12.1-20-03 through 12.1-20-07 or section 12.1-20-11, and the presence of the alleged sexual offender in the child’s residence presents a danger to the child’s life or physical, emotional, or mental health. The court may order that the parent, guardian, or custodian not allow contact with an identified person if the court determines the order is in the best interests of the child.
  5. If the child is not released and a parent, guardian, or custodian has not been notified of the hearing, did not appear or waive appearance at the hearing, and files an affidavit showing these facts, the court shall rehear the matter without unnecessary delay and order the child’s release, unless it appears from the hearing that the child’s shelter care is required under section 27-20.3-07.

Source:

S.L. 2021, ch. 245, § 23, effective July 1, 2021.

27-20.3-11. Diversion.

A child in need of services may be diverted.

Source:

S.L. 2021, ch. 245, § 23, effective July 1, 2021.

27-20.3-12. Petition — Who may prepare and file — Review.

A petition alleging a child in need of protection must be prepared, filed, and served upon the parties by the state’s attorney. A petition may also be prepared by any other person, including a law enforcement officer, which has knowledge of the facts alleged or is informed and believes the facts are true. A petition prepared by any person other than a state’s attorney may not be filed unless the director or the court has determined the filing of the petition is in the best interest of the public and the child.

Source:

S.L. 2021, ch. 245, § 23, effective July 1, 2021.

27-20.3-13. Conduct of child in need of protection hearings.

  1. A hearing under this chapter must be conducted by the court without a jury, in an informal but orderly manner and separately from other proceedings not included in section 27-20.2-03 and in accordance with the North Dakota Rules of Juvenile Procedure.
  2. If the hearing has not been held within the time limit, or any extension of the time limit, required by supreme court rule, the petition must be dismissed.
  3. The state’s attorney shall present the evidence in support of any allegations of the petition not admitted and otherwise conduct the proceedings on behalf of the state.
  4. The proceedings must be recorded by stenographic notes or by electronic, mechanical, or other appropriate means.
  5. Juvenile court hearings are closed to the public even if the purpose of the hearing is to declare a person in contempt of court. The general public must be excluded from other hearings under this chapter. In hearings from which the general public is excluded, only the parties, counsel of the parties, witnesses, victims, and any other persons the court finds have a proper interest in the proceedings may be admitted by the court. The court may temporarily exclude the child or other person from the hearing if, after being warned by the court that disruptive conduct will cause removal from the courtroom, the child or other person persists in conduct that justifies removal from the courtroom.

Source:

S.L. 2021, ch. 245, § 23, effective July 1, 2021.

27-20.3-14. Adjudication.

  1. If the court finds from clear and convincing evidence that the child is in need of protection, the court shall proceed immediately or at a postponed hearing to make a proper disposition of the case.
  2. After hearing the evidence on the petition, the court shall make and file findings as to whether the child is in need of protection. If the court finds the child is not in need of protection, the court shall dismiss the petition and order the child discharged from any restriction previously ordered in the proceeding.
  3. In hearings under this section, all evidence helpful in determining the questions presented, including oral and written reports, may be received by the court and relied upon to the extent of the probative value of the evidence even though not otherwise competent in the hearing on the petition. The parties or the counsel of the parties must be afforded an opportunity to examine and controvert written reports so received and to cross-examine individuals making the reports. Sources of confidential information need not be disclosed.
  4. On motion of the court or that of a party, the court may continue the hearings under this section for a reasonable period to receive reports and other evidence bearing on the disposition. In scheduling investigations and hearings the court shall give priority to proceedings in which a child has otherwise been removed from the child’s home before an order of disposition has been made.

Source:

S.L. 2021, ch. 245, § 23, effective July 1, 2021.

27-20.3-15. Disposition of a child in need of protection.

  1. If a child is found to be a child in need of protection, the court may make any of the following orders of disposition best suited to the protection and physical, mental, and moral welfare of the child:
    1. Permit the child to reside with the child’s parents, guardian, or other custodian, subject to conditions and limitations as the court prescribes, including supervision as directed by the court for the protection of the child.
    2. Subject to conditions and limitations as the court prescribes, transfer temporary legal custody to any of the following:
      1. An agency or other private organization licensed or otherwise authorized by law to receive and provide care for the child.
      2. The director of the human service zone or other public agency authorized by law to receive and provide care for the child.
    3. Require the parents, guardian, or other custodian to participate in treatment.
    4. Appoint a fit and willing relative or other appropriate individual as the child’s legal guardian under section 27-20.1-11.
    5. In cases in which a compelling reason has been shown that it would not be in the child’s best interests to return home, to have parental rights terminated, to be placed for adoption, to be placed with a fit and willing relative, or to be placed with a legal guardian, establish, by order, some other planned permanent living arrangement.
  2. Without a compelling reason to the contrary, a court order that transfers the child from the current protective placement to a parent or other biological family must provide a reasonable period of time to facilitate a beneficial transition for the child and other parties involved.
  3. A child in need of protection may not be placed in a residential facility that houses delinquent children.

Source:

S.L. 2021, ch. 245, § 23, effective July 1, 2021.

27-20.3-16. Disposition of child needing continued foster care services. [Effective through August 31, 2022]

  1. As used in this section, “child” means an individual between the ages of eighteen and twenty-one years who is in need of continued foster care services.
  2. A petition to commence an action under this section must contain information as required by supreme court rule along with an affidavit either prepared by the administrative human service zone, as determined by the department of human services, or prepared by an agency or tribal council of a recognized Indian reservation in this state.
  3. The court shall issue a summons upon the filing of a petition and affidavit.
  4. If a child is in need of continued foster care services as determined by the human service zone or the department of human services and as set forth in a continued foster care agreement, the court shall make the following judicial determination:
    1. That the child is not in need of services or protection or delinquent, but is in need of continued foster care services;
    2. That the child will remain in or will return to foster care pursuant to the child’s continued foster care agreement;
    3. That the child’s continued foster care agreement has been willfully entered between:
      1. The human service zone or the department of human services or its agent, the child, and the foster care provider; or
      2. An agency or tribal council of a recognized Indian reservation in the state if the child is not subject to the jurisdiction of the state, the child, and the foster care provider;
    4. That it is in the best interest of the child to remain in or return to foster care;
    5. That reasonable efforts were made in accordance with subsection 7 of section 27-20.3-18;
    6. That the child has attained the age of eighteen or older but does not exceed the age of twenty-one years;
    7. That the child has satisfied the education, employment, or disability requirements under the federal Fostering Connections to Success and Increasing Adoptions Act of 2008 [Pub. L. 110-351] and as set forth by the department of human services;
    8. That the human service zone, as determined by the department of human services, or that an agency or tribal council of a recognized Indian reservation in the state, shall continue foster care case management, unless otherwise agreed to or required by the department of human services;
    9. That the human service zone or an agency or tribal council of a recognized Indian reservation in the state must have care and placement responsibility of the child;
    10. That permanency hearing must be as set forth in section 27-20.3-24 ; and
    11. That there are no grounds to file a petition to terminate parental rights under section 27-20.3-20.
  5. Pursuant to rule 16 of the North Dakota Rules of Juvenile Procedure, a court may modify or vacate the judicial determination made under subsection 4.

Source:

S.L. 2021, ch. 245, § 23, effective July 1, 2021.

27-20.3-16. Disposition of child needing continued foster care services. [Effective September 1, 2022]

  1. As used in this section, “child” means an individual between the ages of eighteen and twenty-one years who is in need of continued foster care services.
  2. A petition to commence an action under this section must contain information as required by supreme court rule along with an affidavit either prepared by the administrative human service zone, as determined by the department of health and human services, or prepared by an agency or tribal council of a recognized Indian reservation in this state.
  3. The court shall issue a summons upon the filing of a petition and affidavit.
  4. If a child is in need of continued foster care services as determined by the human service zone or the department of health and human services and as set forth in a continued foster care agreement, the court shall make the following judicial determination:
    1. That the child is not in need of services or protection or delinquent, but is in need of continued foster care services;
    2. That the child will remain in or will return to foster care pursuant to the child’s continued foster care agreement;
    3. That the child’s continued foster care agreement has been willfully entered between:
      1. The human service zone or the department of health and human services or its agent, the child, and the foster care provider; or
      2. An agency or tribal council of a recognized Indian reservation in the state if the child is not subject to the jurisdiction of the state, the child, and the foster care provider;
    4. That it is in the best interest of the child to remain in or return to foster care;
    5. That reasonable efforts were made in accordance with subsection 7 of section 27-20.3-18;
    6. That the child has attained the age of eighteen or older but does not exceed the age of twenty-one years;
    7. That the child has satisfied the education, employment, or disability requirements under the federal Fostering Connections to Success and Increasing Adoptions Act of 2008 [Pub. L. 110-351] and as set forth by the department of health and human services;
    8. That the human service zone, as determined by the department of health and human services, or that an agency or tribal council of a recognized Indian reservation in the state, shall continue foster care case management, unless otherwise agreed to or required by the department of health and human services;
    9. That the human service zone or an agency or tribal council of a recognized Indian reservation in the state must have care and placement responsibility of the child;
    10. That permanency hearing must be as set forth in section 27-20.3-24 ; and
    11. That there are no grounds to file a petition to terminate parental rights under section 27-20.3-20.
  5. Pursuant to rule 16 of the North Dakota Rules of Juvenile Procedure, a court may modify or vacate the judicial determination made under subsection 4.

Source:

S.L. 2021, ch. 245, § 23, effective July 1, 2021; 2021, ch. 245, § 23, effective September 1, 2022.

27-20.3-17. Human service zone to report to committing juvenile court.

  1. A human service zone shall develop a family case plan and file the plan with the committing juvenile court within sixty days.
  2. A human service zone shall review each placement of a child found to be in need of protection with custody ordered to a human service zone and shall review the current status of each child every three months to determine whether a change in placement or program is necessary for continued efforts toward reunification and permanency of the child, and shall report the findings to the committing juvenile court.

Source:

S.L. 2021, ch. 245, § 23, effective July 1, 2021.

27-20.3-18. Reasonable efforts to prevent removal or to reunify — When required.

  1. As used in this section, “reasonable efforts” means the exercise of due diligence, by the agency granted authority over the child under this chapter, to use appropriate and available services to meet the needs of the child and the child’s family in order to prevent removal of the child from the child’s family or, after removal, to use appropriate and available services to eliminate the need for removal, to reunite the child and the child’s family, and to maintain family connections. In determining reasonable efforts to be made with respect to a child under this section, and in making reasonable efforts, the child’s health and safety must be the paramount concern.
  2. Except as provided in subsection 4, reasonable efforts must be made to preserve families, reunify families, and maintain family connections:
    1. Before the placement of a child in foster care, to prevent or eliminate the need for removing the child from the child’s home;
    2. To make it possible for a child to return safely to the child’s home;
    3. Whether and, if applicable, to place siblings in the same foster care, relative, guardianship, or adoptive placement, unless it is determined that such a joint placement would be contrary to the safety or well-being of any of the siblings; and
    4. In the case of siblings removed from the home of the siblings who are not jointly placed, to provide for frequent visitation or other ongoing interaction between the siblings, unless it is contrary to the safety or well-being of any of the siblings.
  3. If the court or the child’s custodian determined that continuation of reasonable efforts, as described in subsection 2, is inconsistent with the permanency plan for the child, reasonable efforts must be made to place the child in a timely manner in accordance with the permanency plan and to complete steps that are necessary to finalize the permanent placement of the child.
  4. Reasonable efforts of the type described in subsection 2 are not required if:
    1. A court of competent jurisdiction has determined a parent has subjected a child to aggravated circumstances; or
    2. The parental rights of the parent, with respect to another child of the parent, have been involuntarily terminated.
  5. Efforts to place a child for adoption, with a fit and willing relative or other appropriate individual as a legal guardian, or in another planned permanent living arrangement, may be made concurrently with reasonable efforts of the type described in subsection 2.
  6. Removal of a child from the child’s home for placement in foster care must be based on judicial findings stated in the court’s order, and determined on a case-by-case basis in a manner that complies with the requirements of titles IV-B and IV-E of the federal Social Security Act [42 U.S.C. 620 et seq. and 42 U.S.C. 6701 et seq.], as amended, and federal regulations adopted under this federal Act, provided that this subsection may not provide a basis for overturning an otherwise valid court order.
  7. For the purpose of section 27-20.3-19, reasonable efforts were made under this section to meet the child’s needs before a foster care placement for a child remaining in care for continued foster care purposes.

Source:

S.L. 2021, ch. 245, § 23, effective July 1, 2021.

27-20.3-19. Indian child welfare — Active efforts and procedures.

  1. As used in this section:
    1. “Active efforts” means affirmative, active, thorough, and timely efforts intended primarily to maintain or reunite an Indian child with the child’s family. Active efforts required of the federal Indian Child Welfare Act of 1978 [25 U.S.C. 1901 through 1963] apply or may apply, including during the verification process. If an agency is involved in the child-custody proceeding, active efforts must involve assisting the parent or parents or Indian custodian through the steps of a case plan and with accessing or developing the resources necessary to satisfy the case plan. To the maximum extent possible, active efforts should be provided in a manner consistent with the prevailing social and cultural conditions and way of life of the Indian child’s tribe and should be conducted in partnership with the Indian child and the Indian child’s parents, extended family members, Indian custodians, and tribe. Active efforts are to be tailored to the facts and circumstances of the case. The term includes:
      1. Conducting a comprehensive assessment of the circumstances of the Indian child’s family, with a focus on safe reunification as the most desirable goal, with ongoing timely assessment to determine when the threat is resolved and placement of the child can be returned to the custodian.
      2. Identifying appropriate services and helping the parents to overcome barriers, including actively assisting the parents in obtaining such services.
      3. Identifying, notifying, and inviting representatives of the Indian child’s tribe to participate in providing support and services to the Indian child’s family and in family team meetings, permanency planning, and resolution of placement issues.
      4. Conducting or causing to be conducted a diligent search for the Indian child’s extended family members, and contacting and consulting with extended family members to provide family structure and support for the Indian child and the Indian child’s parents.
      5. Offering and employing available and culturally appropriate family preservation strategies and facilitating the use of remedial and rehabilitative services provided by the child’s tribe.
      6. Taking steps to keep siblings together, if possible.
      7. Supporting regular visits with parents or Indian custodians in the most natural setting possible as well as trial home visits of the Indian child during any period of removal, consistent with the need to ensure the health, safety, and welfare of the child.
      8. Identifying community resources, including housing, financial, transportation, mental health, substance abuse, and peer support services and actively assisting the Indian child’s parents or, as appropriate, the child’s family, in utilizing and accessing those resources.
      9. Monitoring progress and participation in services.
      10. Considering alternative ways to address the needs of the Indian child’s parents and where appropriate, the family, if the optimum services do not exist or are not available.
      11. Providing post-reunification services and monitoring.
    2. “Extended family member” means a relationship defined by the law or custom of the Indian child’s tribe or, in the absence of such law or custom, means an individual who has reached the age of eighteen and who is the Indian child’s grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent.
    3. “Indian” means an individual who is a member of an Indian tribe, or who is a native and a member of a regional corporation as defined under 43 U.S.C. 1606.
    4. “Indian child” means any unmarried individual who is under the age of eighteen and is either a member of an Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.
    5. “Indian child’s tribe” means the Indian tribe in which an Indian child is a member or eligible for membership or, in the case of an Indian child who is a member of or eligible for membership in more than one tribe, the Indian tribe with which the Indian child has the more significant contacts.
    6. “Indian custodian” means any Indian individual who has legal custody of an Indian child under tribal law or custom or under state law or to whom temporary physical care, custody, and control has been transferred by the parent of the child.
    7. “Indian tribe” means an Indian tribe, band, nation, or other organized Indian group or community of Indians recognized as eligible for services provided to Indians by the United States secretary of the interior because of their status as Indians, including any Alaska native village as defined in 43 U.S.C. 1602(c).
    8. “Parent” means any biological parent or parents of an Indian child or any Indian individual who has lawfully adopted an Indian child, including adoptions under tribal law or custom. The term does not include the unwed father if paternity has not been acknowledged or established.
    9. “Termination of parental rights” means any action resulting in the termination of the parent-child relationship. It does not include a placement based upon an act by an Indian child which, if committed by an adult, would be deemed a crime or a placement upon award of custody to one of the child’s parents in a divorce proceeding.
  2. Before removal of an Indian child from the custody of a parent or Indian custodian for purposes of involuntary foster care placement or the termination of parental rights over an Indian child, the court shall find that active efforts have been made to provide remedial services and rehabilitative services designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. The court may not order the removal unless evidence of active efforts shows there has been a vigorous and concerted level of casework beyond the level that would constitute reasonable efforts under section 27-20.3-26. Reasonable efforts may not be construed to be active efforts. Active efforts must be made in a manner that takes into account the prevailing social and cultural values, conditions, and way of life of the Indian child’s tribe. Active efforts must utilize the available resources of the Indian child’s extended family, tribe, tribal and other relevant social service agencies, and individual Indian caregivers.
  3. The court may order the removal of the Indian child for involuntary foster care placement only if the court determines, by clear and convincing evidence, that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. Evidence must show a causal relationship between the particular conditions in the home and the likelihood that continued custody of the child will result in serious emotional or physical damage to the particular child who is the subject of the proceeding. Poverty, isolation, custodian age, crowded or inadequate housing, substance use, or nonconforming social behavior does not by itself constitute clear and convincing evidence of imminent serious emotional or physical damage to the child. As soon as the threat has been removed and the child is no longer at risk, the state should terminate the removal, by returning the child to the parent while offering a solution to mitigate the situation that gave rise to the need for emergency removal and placement.
  4. The court may only order the termination of parental rights over the Indian child if the court determines, by evidence beyond a reasonable doubt that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
  5. In considering whether to involuntarily place an Indian child in foster care or to terminate the parental rights of the parent of an Indian child, the court shall require that a qualified expert witness must be qualified to testify regarding whether the child’s continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child and should be qualified to testify as to the prevailing social and cultural standards of the Indian child’s tribe. An individual may be designated by the Indian child’s tribe as being qualified to testify to the prevailing social and cultural standards of the Indian child’s tribe. The court or any party may request the assistance of the Indian child’s tribe or the bureau of Indian affairs office serving the Indian child’s tribe in locating individuals qualified to serve as expert witnesses. The social worker regularly assigned to the Indian child may not serve as a qualified expert witness in child-custody proceedings concerning the child. The qualified expert witness should be someone familiar with the particular child and have contact with the parents to observe interaction between the parents, child, and extended family members. The child welfare agency and courts should facilitate access to the family and records to facilitate accurate testimony.

Source:

S.L. 2021, ch. 245, § 23, effective July 1, 2021.

27-20.3-20. Termination of parental rights.

  1. The court by order may terminate the parental rights of a parent with respect to the parent’s child if:
    1. The parent has abandoned the child;
    2. The child is subjected to aggravated circumstances;
    3. The child is in need of protection and the court finds:
      1. The conditions and causes of the need for protection are likely to continue or will not be remedied and for that reason the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm; or
      2. The child has been in foster care, in the care, custody, and control of the department or human service zone for at least four hundred fifty out of the previous six hundred sixty nights;
    4. The written consent of the parent acknowledged before the court has been given; or
    5. The parent has pled guilty or nolo contendere to, or has been found guilty of engaging in a sexual act under section 12.1-20-03 or 12.1-20-04, the sexual act led to the birth of the parent’s child, and termination of the parental rights of the parent is in the best interests of the child.
  2. If the court does not make an order of termination of parental rights, it may grant an order under section 27-20.3-15 if the court finds from clear and convincing evidence that the child is in need of protection.

Source:

S.L. 2021, ch. 245, § 23, effective July 1, 2021.

27-20.3-21. Petition for termination of parental rights. [Effective through August 31, 2022]

  1. As used in this section:
    1. “A finding that the child has been subjected to child abuse or neglect” means:
      1. A finding of a child in need of protection made under this chapter; or
      2. A conviction of a person, responsible for a child’s welfare, for conduct involving the child, under chapter 12.1-16 or sections 12.1-17-01 through 12.1-17-04 or 12.1-20-01 through 12.1-20-08.
    2. “Compelling reason” means a recorded statement that reflects consideration of:
      1. The child’s age;
      2. The portion of the child’s life spent living in the household of a parent of the child;
      3. The availability of an adoptive home suitable to the child’s needs;
      4. Whether the child has special needs; and
      5. The expressed wishes of a child age ten or older.
    3. “Department” means the department of human services.
    4. “Human service zone” means a county or consolidated group of counties administering human services within a designated area in accordance with an agreement or plan approved by the department.
  2. A petition for termination of parental rights must be prepared, filed, and served upon the parties by the state’s attorney. A petition may also be prepared by any other person that is not the court, including a law enforcement officer, who has knowledge of the facts alleged or is informed and believes that they are true. A petition prepared by any person other than a state’s attorney may not be filed unless the director or the court, has determined the filing of the petition is in the best interest of the public and the child.
  3. Except as provided in subsection 4, a petition for termination of parental rights must be filed:
    1. If the child has been in foster care, in the custody of the department, human service zone, or, in cases arising out of an adjudication by the court of a child in need of services, the division of juvenile services, for at least four hundred fifty out of the previous six hundred sixty nights;
    2. Within sixty days after the court has found the child to be an abandoned infant; or
    3. Within sixty days after the court has convicted the child’s parent of one of the following crimes, or of an offense under the laws of another jurisdiction which requires proof of substantially similar elements:
      1. A violation of section 12.1-16-01, 12.1-16-02, or 12.1-16-03, or subsection 1 of section 14-09-22 in which the victim is another child of the parent;
      2. Aiding, abetting, attempting, conspiring, or soliciting a violation of section 12.1-16-01, 12.1-16-02, or 12.1-16-03 in which the victim is a child of the parent; or
      3. A violation of section 12.1-17-02 in which the victim is a child of the parent and has suffered serious bodily injury.
  4. A petition for termination of parental rights need not be filed if:
    1. The child is being cared for by a relative approved by the department and human service zone;
    2. The department or human service zone has documented in the case plan a compelling reason for determining that filing such a petition would not be in the child’s best interests and has notified the court that the documentation is available for review by the court; or
    3. The department or the human service zone has determined:
      1. Reasonable efforts to preserve and reunify the family are required under section 27-20.3-26 to be made with respect to the child;
      2. The case plan provides such services are necessary for the safe return of the child to the child’s home; and
      3. Such services have not been provided consistent with time periods described in the case plan.
  5. For purposes of subsection 3, a child in foster care entered foster care on the earlier of:
    1. The date of the court’s order if the court:
      1. Made a finding that the child has been subjected to child abuse or neglect;
      2. Determined that it is unsafe or contrary to the welfare of the child to remain in the home; and
      3. Granted custody of the child to the department or human service zone or, in cases arising out of an adjudication by the court that a child is in need of services, the division of juvenile services; or
    2. The date that is sixty days after:
      1. The date of a hearing under section 27-20.3-10 which results in maintaining a child in shelter care;
      2. The date of an order in a dispositional hearing under which a child is placed in foster care; or
      3. The date a child is placed in foster care voluntarily and with the consent of the child’s parent.
  6. For purposes of subsection 3, a child leaves foster care at the time:
    1. The court enters an order:
      1. Denying a petition to grant care, custody, and control of the child to the human service zone or the division of juvenile services;
      2. Terminating an order that granted custody of the child to the human service zone or the division of juvenile services; or
      3. Appointing a legal guardian under chapter 27-20.1;
    2. The court order under which the child entered foster care ends by operation of law;
    3. The child is placed in a parental home by the court or a legal custodian other than the division of juvenile services and the legal custodian lacks authority to remove the child without further order of the court; or
    4. The child is placed in a parental home by the division of juvenile services.
  7. For purposes of subsection 3, a child is not in foster care on any night during which the child is:
    1. On a trial home visit;
    2. Receiving services at the youth correctional center pursuant to an adjudication of delinquency; or
    3. Absent without leave from the place in which the child was receiving foster care.

Source:

S.L. 2021, ch. 245, § 23, effective July 1, 2021.

27-20.3-21. Petition for termination of parental rights. [Effective September 1, 2022]

  1. As used in this section:
    1. “A finding that the child has been subjected to child abuse or neglect” means:
      1. A finding of a child in need of protection made under this chapter; or
      2. A conviction of a person, responsible for a child’s welfare, for conduct involving the child, under chapter 12.1-16 or sections 12.1-17-01 through 12.1-17-04 or 12.1-20-01 through 12.1-20-08.
    2. “Compelling reason” means a recorded statement that reflects consideration of:
      1. The child’s age;
      2. The portion of the child’s life spent living in the household of a parent of the child;
      3. The availability of an adoptive home suitable to the child’s needs;
      4. Whether the child has special needs; and
      5. The expressed wishes of a child age ten or older.
    3. “Department” means the department of health and human services.
    4. “Human service zone” means a county or consolidated group of counties administering human services within a designated area in accordance with an agreement or plan approved by the department.
  2. A petition for termination of parental rights must be prepared, filed, and served upon the parties by the state’s attorney. A petition may also be prepared by any other person that is not the court, including a law enforcement officer, who has knowledge of the facts alleged or is informed and believes that they are true. A petition prepared by any person other than a state’s attorney may not be filed unless the director or the court, has determined the filing of the petition is in the best interest of the public and the child.
  3. Except as provided in subsection 4, a petition for termination of parental rights must be filed:
    1. If the child has been in foster care, in the custody of the department, human service zone, or, in cases arising out of an adjudication by the court of a child in need of services, the division of juvenile services, for at least four hundred fifty out of the previous six hundred sixty nights;
    2. Within sixty days after the court has found the child to be an abandoned infant; or
    3. Within sixty days after the court has convicted the child’s parent of one of the following crimes, or of an offense under the laws of another jurisdiction which requires proof of substantially similar elements:
      1. A violation of section 12.1-16-01, 12.1-16-02, or 12.1-16-03, or subsection 1 of section 14-09-22 in which the victim is another child of the parent;
      2. Aiding, abetting, attempting, conspiring, or soliciting a violation of section 12.1-16-01, 12.1-16-02, or 12.1-16-03 in which the victim is a child of the parent; or
      3. A violation of section 12.1-17-02 in which the victim is a child of the parent and has suffered serious bodily injury.
  4. A petition for termination of parental rights need not be filed if:
    1. The child is being cared for by a relative approved by the department and human service zone;
    2. The department or human service zone has documented in the case plan a compelling reason for determining that filing such a petition would not be in the child’s best interests and has notified the court that the documentation is available for review by the court; or
    3. The department or the human service zone has determined:
      1. Reasonable efforts to preserve and reunify the family are required under section 27-20.3-26 to be made with respect to the child;
      2. The case plan provides such services are necessary for the safe return of the child to the child’s home; and
      3. Such services have not been provided consistent with time periods described in the case plan.
  5. For purposes of subsection 3, a child in foster care entered foster care on the earlier of:
    1. The date of the court’s order if the court:
      1. Made a finding that the child has been subjected to child abuse or neglect;
      2. Determined that it is unsafe or contrary to the welfare of the child to remain in the home; and
      3. Granted custody of the child to the department or human service zone or, in cases arising out of an adjudication by the court that a child is in need of services, the division of juvenile services; or
    2. The date that is sixty days after:
      1. The date of a hearing under section 27-20.3-10 which results in maintaining a child in shelter care;
      2. The date of an order in a dispositional hearing under which a child is placed in foster care; or
      3. The date a child is placed in foster care voluntarily and with the consent of the child’s parent.
  6. For purposes of subsection 3, a child leaves foster care at the time:
    1. The court enters an order:
      1. Denying a petition to grant care, custody, and control of the child to the human service zone or the division of juvenile services;
      2. Terminating an order that granted custody of the child to the human service zone or the division of juvenile services; or
      3. Appointing a legal guardian under chapter 27-20.1;
    2. The court order under which the child entered foster care ends by operation of law;
    3. The child is placed in a parental home by the court or a legal custodian other than the division of juvenile services and the legal custodian lacks authority to remove the child without further order of the court; or
    4. The child is placed in a parental home by the division of juvenile services.
  7. For purposes of subsection 3, a child is not in foster care on any night during which the child is:
    1. On a trial home visit;
    2. Receiving services at the youth correctional center pursuant to an adjudication of delinquency; or
    3. Absent without leave from the place in which the child was receiving foster care.

Source:

S.L. 2021, ch. 245, § 23, effective July 1, 2021; 2021, ch. 245, § 23, effective September 1, 2022.

27-20.3-22. Proceeding for termination of parental rights.

  1. The petition must contain information required by the North Dakota Rules of Juvenile Procedure and state clearly that an order for termination of parental rights is requested and that the effect will be as stated in section 27-20.3-23.
  2. If both of the biological parents of the child are not named in the petition either as petitioner or as respondent, the court shall cause inquiry to be made of the petitioner and other appropriate persons in an effort to identify an unnamed parent. The inquiry must include, to the extent necessary and appropriate, all of the following:
    1. Whether any man is presumed to be the father of the child under chapter 14-20.
    2. Whether the biological mother of the child was cohabiting with a man at the time of conception or birth of the child.
    3. Whether the biological mother of the child has received from any man support payments or promises of support with respect to the child or in connection with the pregnancy.
    4. Whether any individual has formally or informally acknowledged or declared that individual’s possible parentage of the child.
    5. Whether any individual claims any right to custody of the child.
  3. The court shall add as respondent to the petition and cause to be served with a summons any individual identified by the court as an unnamed parent, unless the individual has relinquished parental rights, or parental rights have been previously terminated by a court.
  4. If the court, after inquiry, is unable to identify an unnamed parent and no individual has appeared in the proceeding claiming to be an unnamed parent of the child or to have any right of custody of the child, the court shall enter an order terminating all parental rights of the unnamed parent with reference to the child and the parent and child relationship.
  5. If a petition for termination of parental rights is made by a parent of the child under this section or if a parent consents to termination of parental rights, that parent is entitled to legal counsel during all stages of a proceeding to terminate the parent and child relationship.
  6. Subject to the disposition of an appeal, upon the expiration of thirty days after an order terminating parental rights is issued under this section, the order may not be questioned by any person, including the petitioner, in any manner, or upon any ground, including fraud, misrepresentation, failure to give any required notice, or lack of jurisdiction of the parties or of the subject matter, unless the person retained custody of the child.
  7. At least ten days before the petition is heard, the clerk of district court or juvenile court shall provide a copy of the petition and summons, if any, to the director of the human service zone.

Source:

S.L. 2021, ch. 245, § 23, effective July 1, 2021.

27-20.3-23. Effect of order terminating parental rights or appointing a legal guardian.

An order terminating parental rights of a parent terminates all the parent’s rights and obligations with respect to the child and of the child to or through the parent arising from the parental relationship. Following the order terminating parental rights, the parent is not entitled to notice of proceedings for the adoption of the child by another nor has the parent any right to object to the adoption or otherwise to participate in the proceedings.

Source:

S.L. 2021, ch. 245, § 23, effective July 1, 2021.

27-20.3-24. Disposition upon termination of parental rights.

  1. If, upon entering an order terminating the parental rights of a parent, there is no parent having parental rights, the court shall:
    1. Commit the child to the custody of the human service zone director or a licensed child-placing agency willing to accept custody for the purpose of placing the child for adoption or, in the absence of such an agreement, in a foster home;
    2. Appoint a fit and willing relative or other appropriate individual as the child’s legal guardian; or
    3. Establish some other planned permanent living arrangement.
  2. The custodian has the rights of a legal custodian and authority to consent to the child’s adoption, marriage, enlistment in the armed forces of the United States, and surgical and other medical treatment.
  3. If the child is not placed for adoption within twelve months after the date of the order and a legal guardianship or other planned permanent living arrangement for the child has not been established by a court of competent jurisdiction, the child must be returned to the court issuing the original termination order for entry of further orders for the care, custody, and control of the child.

Source:

S.L. 2021, ch. 245, § 23, effective July 1, 2021.

27-20.3-25. Court order required for removal of child.

An order of disposition or other adjudication in a proceeding under this chapter, in those cases in which a child is removed from the home of a parent, custodian, or guardian for the reason that continuation in such home would be contrary to the welfare of such child, must specifically state that a continuation of the child in the home of the parent, custodian, or guardian would be contrary to the welfare of the child.

Source:

S.L. 2021, ch. 245, § 23, effective July 1, 2021.

27-20.3-26. Limitations of time on orders of disposition.

  1. An order terminating parental rights is without limit as to duration.
  2. An order of disposition requiring services for the family without the removal of custody may not exceed twelve months from disposition unless extended by the court. The human service zone may request two extensions of up to four months each for the family to complete the treatment goals of the court order and the case plan.
  3. Except as provided in subsection 2, an order of disposition pursuant to which a child is placed in foster care may not continue in force for more than twelve months after the child is considered to have entered foster care. Before the extension of any court order limited under this subsection, a permanency hearing must be conducted. Any other order of disposition may not continue in force for more than twelve months.
  4. Except after a termination of parental rights finding, the court may terminate an order of disposition before the expiration of the order or extend its duration for further periods. An order of extension may be made if:
    1. A hearing is held before the expiration of the order upon motion of a party or on the court’s own motion;
    2. Reasonable notice of the hearing and opportunity to be heard are given to the parties affected;
    3. The court finds the extension is necessary to accomplish the purposes of the order extended; and
    4. The extension does not exceed twelve months from the expiration of an order limited by subsection 3 or two years from the expiration of any other limited order.
  5. The court may terminate an order of disposition or extension before its expiration, on or without an application of a party, if it appears to the court the purposes of the order have been accomplished. If a party may be affected adversely by the order of termination, the order may be made only after reasonable notice and opportunity to be heard have been given to the party.
  6. Except as provided in subsection 1, when the child attains the age of twenty years, all orders affecting the child then in force terminate and the child is discharged from further obligation or control.
  7. If an order of disposition is made with respect to a child under the age of ten years pursuant to which the child is placed in foster care without terminating parental rights and the parent and child relationship, the court, before extending the duration of the order, shall determine upon the extension hearing whether the child is adoptable and whether termination of those rights and that relationship is warranted under section 27-20.3-03.1 and is in the best interest of the child. In that case the notice of the extension hearing also must inform the parties affected that the court will determine whether the child is adoptable and whether termination of their parental rights and the parent and child relationship is warranted and in the best interest of the child and that a further order of disposition may be made by the court placing the child with a view to adoption. If the court determines the child is adoptable and termination of parental rights and the parent and child relationship is warranted and is in the best interest of the child, the court shall make a further order of disposition terminating those rights and that relationship and committing the child under section 27-20.3-09.

Source:

S.L. 2021, ch. 245, § 23, effective July 1, 2021.

CHAPTER 27-20.4 Delinquency

Source:

S.L. 2021, ch. 245, § 25, effective July 1, 2021.

27-20.4-01. Definitions.

As used in this chapter:

  1. “Accountability” means that after a child is determined to have committed delinquent behavior, by admission or adjudication, the child is held responsible for the behavior through individualized and structured consequences or sanctions for the loss, damage, or injury suffered and proportionate to the offense.
  2. “Arrest” means a taking into custody of a child by law enforcement in the manner authorized by law to answer for the commission of a delinquent offense.
  3. “Attendant care” is a nonsecure holdover site for delinquent children or children in need of services who have been picked up by law enforcement and need constant short-term supervision on a preadjudicatory basis.
  4. “Child” means an individual who is:
    1. Under the age of eighteen years and is not married; or
    2. Under the age of twenty years with respect to a delinquent act committed while under the age of eighteen years and not married.
  5. “Community-based program” means a nonresidential program.
  6. “Custodian” means a person, other than a parent or legal guardian, which stands in loco parentis to the child and a person that has been given legal custody of the child by order of a court.
  7. “Delinquent act” means an act designated a crime under the law, including local ordinances or resolutions of this state, or of another state if the act occurred in that state, or under federal law.
  8. “Delinquent child” means a child who has committed a delinquent act and is in need of treatment or rehabilitation.
  9. “Detention” means a physically secure facility with locked doors. The term does not include shelter care, attendant care, or home confinement.
  10. “Director” means the director of juvenile court services.
  11. “Dispositional stage” means any proceeding after adjudication for a delinquent offense.
  12. “Diversion” means an intervention strategy made by a person with authority which directs the child away from formal court processing to a specifically designed program or activity to hold the child accountable for the actions of the child and prevents further involvement in the formal legal system.
  13. “Division” means the division of juvenile services.
  14. “Evidence-based” means a program or practice that has had multiple randomized control studies demonstrating the program or practice is effective for a specific population, has been researched, and has been rated as effective by a standardized program evaluation tool.
  15. “Facility” means buildings, structures, or systems, including those for essential administration and support, which are used to provide residential treatment for children.
  16. “Fit and willing relative or other appropriate individual” means a relative or other individual who has been determined, after consideration of an assessment that includes a criminal history record investigation under chapter 50-11.3, to be a qualified individual under chapters 27-20.1 and 30.1-27, and who consents in writing to act as a legal guardian.
  17. “Graduated sanctions” means a calibrated system of sanctions designed to ensure that children face timely and consistent consequences that correspond to the frequency and nature of a child’s noncompliant behaviors, public safety risk, and engagement in supervision and services.
  18. “Home” when used in the phrase “to return home” means the abode of the child’s parent with whom the child formerly resided.
  19. “Home confinement” means predisposition or post-disposition temporary placement of a child in the child’s home, or a surrogate home with the consent of the child’s parent, guardian, or custodian for supervision.
  20. “Human service zone” means a county or consolidated group of counties administering human services within a designated area in accordance with an agreement or plan approved by the department of health and human services.
  21. “Incentives” means calibrated system of rewards designed so that children receive immediate and consistent feedback that supports appropriate behavior and follow through with probation conditions.
  22. “Informal adjustment” means a meeting held by the director of juvenile court or designee to resolve a low-level delinquent referral and is an alternative to the filing of a petition for formal court processing.
  23. “Intensive supervision probation program” means a community-based alternative that provides a higher degree of supervision and use of graduated incentives and sanctions over a child, post-adjudication, to ensure public safety and applies to children who are at high risk to reoffend.
  24. “Juvenile court” means the district court of this state.
  25. “Juvenile drug court” means a program established by the supreme court which is a post-petition or post-adjudication program aimed at intervening in substance use disorders through intense supervision and participation in recovery services.
  26. “Pick up and hold order” means an order of the court to take a child into custody based upon an allegation of delinquency or failure to appear for court.
  27. “Predisposition assessment” means an investigation, assessment, and written report to the court based on the results of risk and need screening and assessment tools regarding a disposition for a delinquent child.
  28. “Proceeding” means any hearing or informal adjustment conducted before a court.
  29. “Qualified residential treatment program” means a licensed or approved residence providing an out-of-home treatment placement for children including a trauma-informed model.
  30. “Referral” means a written report of alleged delinquent behavior of a child which is received by the director of juvenile court.
  31. “Relative” means:
    1. The child’s grandparent, great-grandparent, sibling, half-sibling, aunt, great-aunt, uncle, great-uncle, nephew, niece, or first cousin;
    2. An individual with a relationship to the child, derived through a current or former spouse of the child’s parent, similar to a relationship described in subdivision a;
    3. An individual recognized in the child’s community as having a relationship with the child similar to a relationship described in subdivision a; or
    4. The child’s stepparent.
  32. “Risk factors” means characteristics and behaviors that, when addressed or changed, affect a child’s risk for committing delinquent acts.
  33. “Shelter care” means temporary care of a child in physically unrestricted facilities.
  34. “Treatment” means targeting interventions that focus on risk factors, improved mental health, and improved positive youth outcomes.

Source:

S.L. 2021, ch. 245, § 25, effective July 1, 2021.

27-20.4-02. Jurisdiction.

Jurisdiction as set forth in section 27-20.2-03 is applicable to this chapter.

Source:

S.L. 2021, ch. 245, § 25, effective July 1, 2021.

27-20.4-03. Venue.

A proceeding under this chapter may be commenced in the county in which the child resides. If delinquent conduct is alleged, the proceeding is commenced in the county in which the acts constituting the alleged delinquent conduct occurred. If delinquent conduct is alleged in part in one county and in part in another county, the venue is in either of the counties.

Source:

S.L. 2021, ch. 245, § 25, effective July 1, 2021.

27-20.4-04. Powers and duties of director of juvenile court.

  1. For the purpose of carrying out the objectives and purposes of this chapter and subject to the limitations of this chapter or imposed by the court, a director shall:
    1. Make investigations, reports, and recommendations to the juvenile court.
    2. Receive and examine complaints, referrals, and charges of delinquency for the purpose of considering the commencement of proceedings under this chapter.
    3. Make a determination upon intake of referrals regarding the appropriate manner to handle a child in need of services or a child in need of protection by use of nonjudicial commencement of proceedings under this chapter.
    4. Supervise and assist a child placed on probation for delinquency.
    5. Make appropriate referrals to other private or public agencies of the community if their assistance appears to be needed or desirable.
    6. Issue a temporary custody order concerning a child who is referred to the director’s supervision or care as a delinquent child. Except as provided by this chapter, a director does not have the powers of a law enforcement officer.
    7. Take acknowledgments of instruments for the purpose of this chapter.
    8. Perform all other functions designated by this chapter, under section 27-05-30, or by order of the court, including, if qualified, those of a referee.
    9. Issue an order to a law enforcement authority to transport a child to and from a specified location.
    10. Receive and examine requests for review of a child’s placement at a qualified residential treatment program under the Family First Prevention Services Act [Pub. L. 115-123; 132 Stat. 64; 42 U.S.C. 675].
  2. Any of the foregoing functions may be performed in another state if authorized by the court of this state and permitted by the laws of the other state.

Source:

S.L. 2021, ch. 245, § 25, effective July 1, 2021.

27-20.4-05. Taking into custody.

  1. A child may be taken into custody:
    1. Pursuant to a pick up and hold order or other order of the court under this chapter;
    2. Pursuant to the laws of arrest and as authorized after scoring of the detention screening tool; or
    3. For preadjudicatory supervision in attendant care or shelter care.
  2. The taking of a child into custody is not an arrest, except for the purpose of determining the validity of the arrest under the Constitution of North Dakota or the United States Constitution.
  3. A law enforcement officer shall transport a child if necessary as determined by the court.

Source:

S.L. 2021, ch. 245, § 25, effective July 1, 2021.

27-20.4-06. Detention — Nonsecure care of child. [Effective through July 31, 2022]

  1. A child taken into custody may not be detained or placed in nonsecure care before the hearing on the petition unless the child’s detention or nonsecure care is required to protect the person or property of others or of the child or because the child may abscond or be removed from the jurisdiction of the court or because the child has no parent, guardian, or custodian or other person able to provide supervision and care for the child and return the child to the court if required, or an order for the child’s detention or nonsecure care has been made by the court pursuant to this chapter.
  2. Law enforcement, juvenile court staff, and division staff shall use a detention screening tool to assure the appropriate use of detention and whether the child is a public safety risk. The juvenile court shall establish the detention screening tool, which must include objective factors to aid in the decision of placement of the child. Law enforcement, court records, and division records must include data on detention screening scores and, if the score does not authorize detention, the explanation for the override resulting in placing the juvenile in detention.
  3. The court may place a juvenile in detention before adjudication only if the court finds releasing the child would pose an unreasonable risk to public safety and that all less restrictive alternatives have been considered.
  4. A juvenile may be placed in a secure detention facility if one or more of the following conditions are met:
    1. The child is alleged to have committed an offense that if committed by an adult would constitute a felony against person, felony weapon, or felony drug distribution;
    2. The child has a record of failure to appear in court or there is probable cause to believe that the child will flee the jurisdiction of the court;
    3. The child has violated the terms of detention release on home confinement or electronic monitoring;
    4. There is oral or written verification that the child is an alleged delinquent child sought for an offense in another jurisdiction or that the child left a juvenile detention facility without authorization;
    5. The child is an out-of-state runaway subject to the rules of the interstate commission on juveniles;
    6. The child meets criteria for secure detention on the detention screening tool;
    7. The child meets criteria for an override on the detention screening tool; or
    8. If a child is participating in a juvenile drug court program as a result of an adjudication for a delinquent offense, the court may order the child detained in a juvenile detention center operated pursuant to chapter 12-44.1. The child may be detained twice during the child’s participation in the program with the total period of detention under this section not to exceed four days in a one-year period.
  5. A child may not be placed in detention solely due to lack of supervision alternatives or due to the community’s inability to provide appropriate treatment or services.
  6. Alternatives to secure detention may be utilized to include home confinement, electronic monitoring, and parental or guardian supervision if the court determines there is no unreasonable risk to public safety.
  7. A child placed in detention must have a mental health and trauma screening tool completed by the juvenile detention center or by juvenile court upon entry and provide that information to the juvenile court before release or detention hearing.

Source:

S.L. 2021, ch. 245, § 25, effective July 1, 2021.

27-20.4-06. Detention — Nonsecure care of child. [Effective August 1, 2022]

  1. A child taken into custody may not be detained or placed in nonsecure care before the hearing on the petition unless the child’s detention or nonsecure care is required to protect the person or property of others or of the child or because the child may abscond or be removed from the jurisdiction of the court or because the child has no parent, guardian, or custodian or other person able to provide supervision and care for the child and return the child to the court if required, or an order for the child’s detention or nonsecure care has been made by the court pursuant to this chapter.
  2. Law enforcement, juvenile court staff, and division staff shall use a detention screening tool to assure the appropriate use of detention and whether the child is a public safety risk. The juvenile court shall establish the detention screening tool, which must include objective factors to aid in the decision of placement of the child. Law enforcement, court records, and division records must include data on detention screening scores and, if the score does not authorize detention, the explanation for the override resulting in placing the juvenile in detention.
  3. The court may place a juvenile in detention before adjudication only if the court finds releasing the child would pose an unreasonable risk to public safety and that all less restrictive alternatives have been considered.
  4. A juvenile may be placed in a secure detention facility if one or more of the following conditions are met:
    1. The child is alleged to have committed an offense that if committed by an adult would constitute a felony against person, felony weapon, or felony drug distribution;
    2. The child has a record of failure to appear in court or there is probable cause to believe that the child will flee the jurisdiction of the court;
    3. The child has violated the terms of detention release on home confinement or electronic monitoring;
    4. There is oral or written verification that the child is an alleged delinquent child sought for an offense in another jurisdiction or that the child left a juvenile detention facility without authorization;
    5. The child is an out-of-state runaway subject to the rules of the interstate commission on juveniles;
    6. The child meets criteria for secure detention on the detention screening tool; or
    7. The child meets criteria for an override on the detention screening tool.
  5. A child may not be placed in detention by law enforcement or juvenile court, including drug court solely:
    1. Due to a lack of supervision alternatives, service options, or more appropriate facilities.
    2. Due to the community’s inability to provide treatment or services.
    3. Due to a lack of supervision in the home or community.
    4. In order to allow a parent, guardian, or legal custodian to avoid his or her legal responsibility.
    5. Due to a risk of the juvenile’s self-harm.
    6. In order to attempt to punish, treat, or rehabilitate the child.
    7. Due to a request by a victim, law enforcement, or the community.
    8. In order to permit more convenient administrative access to the juvenile.
  6. Alternatives to secure detention may be utilized to include home confinement, electronic monitoring, and parental or guardian supervision if the court determines there is no unreasonable risk to public safety.
  7. A child placed in detention must have a mental health and trauma screening tool completed by the juvenile detention center or by juvenile court upon entry and provide that information to the juvenile court before release or detention hearing.

Source:

S.L. 2021, ch. 245, § 25, effective July 1, 2021; 2021, ch. 245, § 26, effective August 1, 2022.

27-20.4-07. Release or delivery to court.

  1. A person taking a child into custody, with all reasonable speed and without first taking the child elsewhere, shall:
    1. Complete the detention screening instrument and use the results in making a release or hold decision. Release options include allowing a child to return home with parental supervision and a promise to appear for court if notified, or release with limited supervision, such as an electronic monitoring device or conditions for home confinement.
    2. Release the child to the child’s parent, guardian, custodian, or other responsible adult able and willing to assume custody of the child, upon that individual’s promise to bring the child before the court if requested by the court, unless the child’s detention is warranted or required under section 27-20.4-05; or
    3. Bring the child before the court or deliver the child to a detention facility designated by the court or to a medical facility if the child is believed to suffer from a serious physical condition or illness that requires prompt treatment. The person taking the child into custody promptly shall give notice of taking the child into custody, together with a statement of the reason for taking the child into custody, to a parent, guardian, or other custodian and to the court. Any temporary detention or questioning of the child necessary to comply with this subdivision must conform to the procedures and conditions prescribed by this chapter and rules of court.
  2. If a parent, guardian, or other custodian, if requested, fails to bring the child before the court as provided in subsection 1, the court may issue a pick up and hold order directing that the child be taken into custody and brought before the court.
  3. If the petition is not filed within five days after the date of the detention hearing, the child must be released from detention.

Source:

S.L. 2021, ch. 245, § 25, effective July 1, 2021.

27-20.4-08. Place of detention.

A child alleged to be delinquent may be detained only in:

  1. A licensed foster home or a home approved by the court;
  2. A facility operated by a licensed child welfare agency;
  3. A detention home or center for delinquent children which is under the direction or supervision of the court or other public authority or of a private agency approved by the court:
    1. Any other suitable place or facility, including a medical facility for the treatment of mental illness, alcoholism, or drug addiction, designated by the court; or
    2. A jail or other facility for the detention of adults only if the facility is not available, the detention is in a room separate and removed from those for adults, it appears to the satisfaction of the court, the director, or designee, that public safety and protection reasonably require detention, and it is so authorized.

Source:

S.L. 2021, ch. 245, § 25, effective July 1, 2021.

27-20.4-09. Release from detention or nonsecure care — Hearing — Conditions of release. [Effective through August 31, 2022]

  1. If a child is brought before the court or delivered to a detention or nonsecure care facility designated by the court, the director, the intake officer, or other authorized officer of the court immediately shall make an investigation and release the child unless it appears that the child’s detention is warranted or required under section 27-20.4-05.
  2. Reasonable notice of the release from detention must be provided to any victim as required by subsection 19 of section 12.1-34-02.
  3. If the child is not released, reasonable notice, either oral or written, stating the time, place, and purpose of the detention or shelter care must be given to the child and, if able to be found, to the child’s parents, guardian, or other custodian. If the child is not represented by counsel at a proceeding, the court shall inform the child of the right to counsel, regardless of income. Before the commencement of the hearing, the court shall inform the child’s parents, legal guardian, or custodian of the right to counsel at public expense at the dispositional stage if the parent, guardian, or custodian applies and is determined to be indigent and of the child’s right to remain silent with respect to any allegations of delinquent conduct.
    1. If the child is not released from detention, a judge or referee shall hold a detention hearing within twenty-four hours after the time the child is placed in detention, excluding weekends or legal holidays, to determine whether there is probable cause to believe the child has committed the delinquent act alleged, and whether the child’s detention is required under section 27-20.4-05. In determining whether a child requires detention, the court shall consider the results of the detention screening tool.
    2. If the child is not released from nonsecure care, a judge or referee shall hold a hearing promptly and not later than ninety-six hours after the child is placed in nonsecure care to determine whether there is probable cause to believe the child has committed a delinquent act and whether the child’s shelter care is required.
  4. If the child is not released and a parent, guardian, or custodian has not been notified of the hearing, did not appear or waive appearance at the hearing, and files an affidavit showing these facts, the court shall rehear the matter without unnecessary delay and order the child’s release, unless it appears from the hearing that the child’s detention is required under section 27-20.4-05.
  5. If the parents cannot be found or fail to appear for the detention or nonsecure care hearing and the child does not pose a substantial risk to the community and needs to be detained, the human service zone is notified and a child in need of protection or services care hearing is held.
  6. If it appears that any child being held in detention or shelter care may have an intellectual or developmental disability, the court or detention personnel shall refer the child to the department of human services for an eligibility determination for intellectual or developmental disabilities program management services and a level of care assessment and the results must be filed with the court upon completion. The department of human services shall provide status updates to the court within the time required by the court.
  7. If it appears that any child being held in detention or nonsecure care appears to have a serious and persistent mental illness, the detention staff or court intake officer shall request that the court order a diagnostic assessment that includes a recommendation for necessary level of care that must be conducted within forty-eight hours after the court’s order. The person conducting the diagnostic assessment shall file the results with the court.
  8. If an individual who is or appears to be a child is received at a jail facility or other facility for the detention of adult offenders or individuals charged with a crime, the official in charge of the facility immediately shall inform the court and bring the individual before the court upon request or deliver the individual to a detention or nonsecure facility designated by the court.
  9. If a case is transferred to another court for criminal prosecution, the child may be transferred to the appropriate officer or detention facility in accordance with the law governing the detention of persons charged with crime.

Source:

S.L. 2021, ch. 245, § 25, effective July 1, 2021.

27-20.4-09. Release from detention or nonsecure care — Hearing — Conditions of release. [Effective September 1, 2022]

  1. If a child is brought before the court or delivered to a detention or nonsecure care facility designated by the court, the director, the intake officer, or other authorized officer of the court immediately shall make an investigation and release the child unless it appears that the child’s detention is warranted or required under section 27-20.4-05.
  2. Reasonable notice of the release from detention must be provided to any victim as required by subsection 19 of section 12.1-34-02.
  3. If the child is not released, reasonable notice, either oral or written, stating the time, place, and purpose of the detention or shelter care must be given to the child and, if able to be found, to the child’s parents, guardian, or other custodian. If the child is not represented by counsel at a proceeding, the court shall inform the child of the right to counsel, regardless of income. Before the commencement of the hearing, the court shall inform the child’s parents, legal guardian, or custodian of the right to counsel at public expense at the dispositional stage if the parent, guardian, or custodian applies and is determined to be indigent and of the child’s right to remain silent with respect to any allegations of delinquent conduct.
    1. If the child is not released from detention, a judge or referee shall hold a detention hearing within twenty-four hours after the time the child is placed in detention, excluding weekends or legal holidays, to determine whether there is probable cause to believe the child has committed the delinquent act alleged, and whether the child’s detention is required under section 27-20.4-05. In determining whether a child requires detention, the court shall consider the results of the detention screening tool.
    2. If the child is not released from nonsecure care, a judge or referee shall hold a hearing promptly and not later than ninety-six hours after the child is placed in nonsecure care to determine whether there is probable cause to believe the child has committed a delinquent act and whether the child’s shelter care is required.
  4. If the child is not released and a parent, guardian, or custodian has not been notified of the hearing, did not appear or waive appearance at the hearing, and files an affidavit showing these facts, the court shall rehear the matter without unnecessary delay and order the child’s release, unless it appears from the hearing that the child’s detention is required under section 27-20.4-05.
  5. If the parents cannot be found or fail to appear for the detention or nonsecure care hearing and the child does not pose a substantial risk to the community and needs to be detained, the human service zone is notified and a child in need of protection or services care hearing is held.
  6. If it appears that any child being held in detention or shelter care may have an intellectual or developmental disability, the court or detention personnel shall refer the child to the department of health and human services for an eligibility determination for intellectual or developmental disabilities program management services and a level of care assessment and the results must be filed with the court upon completion. The department of health and human services shall provide status updates to the court within the time required by the court.
  7. If it appears that any child being held in detention or nonsecure care appears to have a serious and persistent mental illness, the detention staff or court intake officer shall request that the court order a diagnostic assessment that includes a recommendation for necessary level of care that must be conducted within forty-eight hours after the court’s order. The person conducting the diagnostic assessment shall file the results with the court.
  8. If an individual who is or appears to be a child is received at a jail facility or other facility for the detention of adult offenders or individuals charged with a crime, the official in charge of the facility immediately shall inform the court and bring the individual before the court upon request or deliver the individual to a detention or nonsecure facility designated by the court.
  9. If a case is transferred to another court for criminal prosecution, the child may be transferred to the appropriate officer or detention facility in accordance with the law governing the detention of persons charged with crime.

Source:

S.L. 2021, ch. 245, § 25, effective September 1, 2022.

27-20.4-10. Diversion.

  1. Before an informal adjustment is held or a petition is filed, the director of juvenile court or designee may determine that no further action is required or impose conditions in lieu of further proceedings for the conduct and control of the child with a diversion to a community-based program or service.
  2. A child referred to the court may be considered for diversion if any of the following criteria are met:
    1. The referral is for a delinquent act that is not an offense requiring a notification to be sent to the department of transportation;
    2. The referral is for a delinquent act that has not been previously diverted more than twice by the juvenile court within the last twelve months; or
    3. The referral is not an offense that could require sex offender registration.
  3. Effective August 1, 2023, except for a drug-related offense, simple assault under chapter 12.1-17-01, or domestic violence under chapter 12.1-17-01.2, a child who commits an infraction or misdemeanor offense on school grounds during hours of operation may not be referred to the juvenile court.

Source:

S.L. 2021, ch. 245, § 25, effective July 1, 2021.

27-20.4-11. Informal adjustment.

  1. Before a petition is filed, the director of juvenile court, or other officer of the court designated by the court, subject to direction of the court may give counsel and advice to the parties and impose conditions for the conduct and control of the child in lieu of further proceedings with a view to an informal adjustment if it appears:
    1. The admitted facts bring the case within the jurisdiction of the court;
    2. Counsel, advice, and conditions, if any, for the conduct and control of the child without an adjudication would be in the best interest of the public and the child; and
    3. The child and the child’s parents, guardian, or other custodian consent to the conditions with knowledge that consent is not obligatory.
  2. A child referred to the court may be considered for informal adjustment if any of the following criteria are met:
    1. The child has no prior formal court adjudications for a similar case type within the last twelve months;
    2. The referral is for a delinquent act and the child has not been previously diverted more than twice by the juvenile court;
    3. A formal petition was filed but an informal adjustment has been requested by the state’s attorney as part of an agreement with defense counsel or was ordered by the court in dismissing a formal petition;
    4. The referral is a sex offense referral that could require sex offender registration but both the state’s attorney and the victim have agreed to an informal adjustment to address the matter; or
    5. The referral is from the division.
  3. Reasonable written notice of the informal adjustment is given by the court to the victim if one is identified on the referral.
  4. Upon an admission to the referred offense, the director of juvenile court or designee will conduct a preliminary risk and needs assessment and the results must be made available to the child and family. The results of the risk and needs assessment are used to inform the outcome of the informal adjustment. Individuals conducting the risk and needs screening tool must receive training on the appropriate delivery and use of the tool.
  5. An informal agreement may not extend beyond six months from the day the agreement was agreed upon. An extension may be granted by the court for an additional period not to exceed six months. An extension may not authorize the detention of the child if not otherwise permitted by this chapter. If the child admits to driving or being in actual physical control of a vehicle in violation of section 39-08-01 or an equivalent ordinance, the child may be required to pay a fine as a condition imposed under this section.
  6. An incriminating statement made by a child to the juvenile court director or designee giving counsel, advice, or as part of the risk and need screening and assessment process, may not be used against the child over objection in any proceeding.

Source:

S.L. 2021, ch. 245, § 25, effective July 1, 2021.

27-20.4-12. Petition — Preliminary determination.

A petition alleging delinquency under this chapter must be reviewed by the director, the court, or other person designated by the director and authorized by the court to determine whether the filing of the petition is in the best interest of the public and the child.

Source:

S.L. 2021, ch. 245, § 25, effective July 1, 2021.

27-20.4-13. Petition — Who may prepare and file — Review.

A petition alleging delinquent conduct must be prepared, filed, and served upon the parties by the state’s attorney. The juvenile court shall conduct an inquiry into and provide the last known addresses of the parents and guardians of the child in the referral to the state’s attorney.

Source:

S.L. 2021, ch. 245, § 25, effective July 1, 2021.

27-20.4-14. Conduct of hearings.

  1. Hearings under this chapter must be conducted by the court without a jury, in an informal but orderly manner and separately from other proceedings not included in section 27-20.2-03 and in accordance with the North Dakota Rules of Juvenile Procedure.
  2. If the hearing has not been held within the time limit, or any extension of the time limit, required by the North Dakota Rules of Juvenile Procedure, the petition must be dismissed.
  3. The state’s attorney shall present the evidence in support of any allegations of the petition not admitted and otherwise conduct the proceedings on behalf of the state.
  4. Except for informal adjustments under section 27-20.4-10, the proceedings must be recorded by stenographic notes or by electronic, mechanical, or other appropriate means.
  5. The general public must be excluded from all hearings under this chapter. During hearings, only the parties, the parties’ counsel, witnesses, victims, and any other persons the court finds have a proper interest in the proceedings may be admitted by the court. The court may temporarily exclude the child or other person from the hearing if, after being warned by the court that disruptive conduct will cause removal from the courtroom, the child or other person persists in conduct that justifies removal from the courtroom.

Source:

S.L. 2021, ch. 245, § 25, effective July 1, 2021.

27-20.4-15. Predispositional assessment.

  1. Before the disposition hearing, the court shall direct the director or designee, to conduct a predisposition assessment and to prepare a written report for the court, unless waived by the court.
  2. The predisposition assessment must consist of a risk and needs assessment together with any other appropriate screenings.
  3. During the pendency of any proceeding the court may order:
    1. The child to be examined at a suitable place by a physician, psychologist, or certified addiction counselor;
    2. The child to be tested by appropriate forensic methods to determine whether the child has been exposed to a controlled substance or other substance considered injurious to the child’s health;
    3. Medical or surgical treatment of a child who is suffering from a serious physical condition or illness, or alcohol or drug abuse, which in the opinion of a licensed physician requires prompt treatment, even if the parent, guardian, or other custodian has not been given notice of a hearing, is not available, or without good cause informs the court of that person’s refusal to consent to the treatment;
    4. An evidence-based risk and needs assessment, mental health screening, or trauma screening; or
    5. The child to be examined to determine the child’s competence or criminal responsibility. If the child is found to lack competency or criminal responsibility the court may:
      1. Dismiss the delinquency proceedings against the child and order the release of the child to the child’s parent, guardian, or legal custodian upon conditions considered appropriate by the court;
      2. Suspend the delinquency proceedings against the child for a period of up to one year and order services be provided to the child as an outpatient or inpatient, by commitment to an institution for persons with intellectual disabilities or mental illness; or
      3. Dismiss the delinquency proceedings and direct that child in need of protection proceedings be initiated.

Source:

S.L. 2021, ch. 245, § 25, effective July 1, 2021.

27-20.4-16. Adjudication.

  1. If the court finds by proof beyond a reasonable doubt that the child committed the acts by reason of which the child is alleged to be delinquent, the court shall proceed immediately or at a postponed hearing to hear evidence as to whether the child is in need of treatment or rehabilitation and to make and file findings. In the absence of evidence to the contrary, evidence of the commission of which constitute a felony is sufficient to sustain a finding that the child is in need of treatment or rehabilitation. If the court finds that the child is not in need of treatment or rehabilitation, the court shall dismiss the proceeding and discharge the child from any detention or other restriction previously ordered.
  2. After hearing the evidence on the petition, the court shall make and file findings as to whether the child is delinquent and whether the acts ascribed to the child were committed by the child. If the court finds the allegations of delinquent conduct have not been established, the court shall dismiss the petition and order the child discharged from any detention or other restriction previously ordered in the proceeding.
  3. In hearings under subsection 1, all evidence helpful in determining the questions presented, including the predisposition assessment and any other oral and written reports, may be received by the court and relied upon to the extent of its probative value even though not otherwise competent in the hearing on the petition. The parties or the counsel of the parties must be afforded an opportunity to examine and controvert written reports so received and to cross-examine individuals making the reports. Sources of confidential information need not be disclosed.
  4. On motion of the court or that of a party, the court may continue the hearings under this section for a reasonable period to receive reports and other evidence bearing on the disposition or the need for treatment or rehabilitation. In this event the court shall make an appropriate order for detention of the child or the child’s release from detention subject to supervision of the court during the period of the continuance. In scheduling investigations and hearings the court shall give priority to proceedings in which a child is in detention or has otherwise been removed from the child’s home before an order of disposition has been made.

Source:

S.L. 2021, ch. 245, § 25, effective July 1, 2021.

27-20.4-17. Disposition of a delinquent child.

  1. If the child is found to be a delinquent child, the court shall make findings and include in the order of disposition any actions or steps necessary to ensure:
    1. The child receives the treatment or rehabilitation the court deems most appropriate;
    2. Repairing harm caused to the victim or community; and
    3. Safety of the community.
  2. If the child is found to be a delinquent child, the court may order probation with conditions best suited to the child’s individual need for treatment, rehabilitation, and welfare.
  3. If the court cannot find a less restrictive alternative, the court may commit a child to the division of juvenile services. A risk and needs assessment must be the basis for the determination of commitment to the division of juvenile services. The court only may commit a child to the division for a new delinquent offense. Unless all probation extensions have been exhausted, the child’s risk and treatment needs continue to be high and the child is refusing to comply with the terms of probation, the court may not commit a child for a violation of the terms of probation.
  4. The court may:
    1. Order the child to make monetary restitution to the victim of the offense or to complete a specified number of hours of community service as determined by the court, or both;
    2. Order the periodic testing for the use of illicit drugs or alcohol; or
    3. Order the child’s participation in a juvenile drug court program.
  5. If the delinquent act committed by the child was a sexual offense, the court shall ensure the child is assessed in a timely manner, not to exceed thirty days, with age-appropriate social assessments to determine the appropriate level of required treatment.

Source:

S.L. 2021, ch. 245, § 25, effective July 1, 2021.

27-20.4-18. Probation of a delinquent child.

  1. A probation order entered by the court must place the child under the supervision of the director.
  2. The conditions of probation must be specifically stated in writing and provided to the child.
  3. Probation conditions must relate to the individual child’s risk and needs assessment and the adjudicated offense.
  4. Violations of probation conditions may be sanctioned by the juvenile director, or designee utilizing graduated sanctions and incentives.
  5. Formal probation orders may not exceed twelve months from disposition.
  6. The court may release a child from probation or modify the terms and conditions of the probation at any time, but the court shall release a child who has complied satisfactorily with the terms, conditions, and duration of probation and the court shall terminate the court’s jurisdiction.
  7. The director of juvenile court shall establish procedures regarding graduated sanctions and incentives. The graduated sanctions program may include a program of home confinement or electronic monitoring but may not include a secure detention stay.
  8. The director or assigned probation court officer may request two extensions up to four months each or one extension up to four months for intensive supervised probation programs for failure to comply or meet the treatment goals of the court order and case plan.
  9. Probation may not be extended solely to collect restitution. If probation is terminated with restitution owing the victim, court procedure governs continued collection or motion for civil judgment against the parents, if appropriate.

Source:

S.L. 2021, ch. 245, § 25, effective July 1, 2021.

27-20.4-19. Delinquent children — Suspension of driving privileges.

  1. If a child is adjudicated delinquent of an offense that would be a class A misdemeanor or a felony if the offense were committed by an adult, the juvenile court may order the suspension of the child’s driving privileges for a period of up to six months for the first offense. For a second or subsequent offense, the juvenile court may order the suspension of the child’s driving privileges for up to one year. As a condition to the return of driving privileges, the juvenile court may order the successful completion of an appropriate driver’s examination.
  2. If the juvenile court orders the suspension of a child’s driving privileges, the juvenile court immediately shall take possession of the child’s driver’s license or permit and send copies of the court’s order to the director of the department of transportation who shall make notation of the child’s suspension of driving privileges.
  3. The record of the child’s suspension of driving privileges under this section must be kept confidential and may not be released except to law enforcement personnel in connection with law enforcement activities. The record of a child’s suspension of driving privileges under this section may not be disclosed to or shared with the licensing officials of any other state or jurisdiction. At the end of the six-month or one-year period, the director shall remove and destroy all record of the child’s suspension of driving privileges under this section.
  4. This section may not be construed to limit consensual agreements between the juvenile court and the child restricting the driving privileges of the child.

Source:

S.L. 2021, ch. 245, § 25, effective July 1, 2021.

27-20.4-20. Restitution.

  1. In addition to a child being ordered to make restitution under section 27-20.4-16, a parent of a child adjudged delinquent may be ordered to make restitution on the child’s behalf in an amount not exceeding five thousand dollars.
  2. Before ordering parental restitution under this section, the court shall hold a hearing on the matter with notice given to all interested parties as to the nature and amount of the parental restitution. In determining whether to order parental restitution, the court shall take the following factors into account:
    1. The ability of the parent or parents to pay monetary restitution and the care and control exercised by the parents.
    2. The ability of the child to pay monetary restitution.
    3. Whether ordering parental restitution would detract from the child’s treatment, rehabilitation, or welfare.
    4. The number of delinquent acts, if any, previously committed by the child.
  3. A parental order of restitution must be limited to those damages directly related to the delinquent act and expenses actually incurred as a result of the delinquent act.
  4. Unless the court directs otherwise, any order of restitution under this section or section 27-20.4-16 may be filed, transcribed, and enforced by the juvenile court or person entitled to the restitution in the same manner as civil judgments rendered by the courts of this state may be enforced. A child against whose parents a judgment may be entered under this section is jointly and severally liable with that child’s parents for the amounts up to five thousand dollars and solely liable for any amounts over that amount. Any judgment rendered under this section may not be discharged in bankruptcy and is not subject to the statutes of limitation provided for in chapter 28-01 and the judgment may not be canceled under section 28-20-35.

Source:

S.L. 2021, ch. 245, § 25, effective July 1, 2021.

27-20.4-21. Transfer to other courts.

  1. After a petition has been filed alleging delinquency based on conduct that is designated a crime or public offense under the laws, including local ordinances or resolutions of this state, the court before hearing the petition on the merits shall transfer the offense for prosecution to the appropriate court having jurisdiction of the offense if:
    1. The child is over sixteen years of age and requests the transfer;
    2. The child was fourteen years of age or more at the time of the alleged conduct and the court determines that there is probable cause to believe the child committed the alleged delinquent act and the delinquent act involves the offense of murder or attempted murder; gross sexual imposition or the attempted gross sexual imposition of a victim by force or by threat of imminent death, serious bodily injury, or kidnapping; or
      1. The child was fourteen or more years of age at the time of the alleged conduct;
      2. A hearing on whether the transfer should be made is held in conformity with sections 27-20.2-12, 27-20.2-13, and 27-20.4-14;
      3. Notice in writing of the time, place, and purpose of the hearing is given to the child and the child’s parents, guardian, or other custodian at least three days before the hearing; and
      4. The court finds that there are reasonable grounds to believe:
        1. The child committed the delinquent act alleged;
        2. The child is not amenable to treatment or rehabilitation as a child through available programs;
        3. The child is not treatable in an institution for individuals who are intellectually disabled or who are mentally ill;
        4. The interests of the community require that the child be placed under legal restraint or discipline; and
        5. If the child is fourteen or fifteen years old, the child committed a delinquent act involving the infliction or threat of serious bodily harm.
  2. The burden of proving reasonable grounds to believe that a child is amenable to treatment or rehabilitation as a child through available programs is on the child in those cases in which the alleged delinquent act involves the offense of manslaughter, aggravated assault, robbery, arson involving an inhabited structure, or escape involving the use of a firearm, destructive device, or other dangerous weapon or in cases in which the alleged delinquent act involves an offense that if committed by an adult would be a felony and the child has two or more previous delinquency adjudications for offenses that would be a felony if committed by an adult.
  3. In determining a child’s amenability to treatment and rehabilitation, the court shall consider and make specific findings on the following factors:
    1. Age;
    2. Mental capacity;
    3. Maturity;
    4. Degree of criminal sophistication exhibited;
    5. Previous record;
    6. Success or failure of previous attempts to rehabilitate;
    7. Whether the child can be rehabilitated before expiration of juvenile court jurisdiction;
    8. Any psychological, probation, or institutional reports;
    9. The nature and circumstances of the acts for which the transfer is sought;
    10. The prospect for adequate protection of the public; and
    11. Any other relevant factors.
  4. A child subject to the jurisdiction of the juvenile court, either before or after reaching eighteen years of age, may not be prosecuted for an offense previously committed unless the case has been transferred as provided in this section.
  5. Statements made by the child at a hearing under this section are not admissible against the child over objection in the criminal proceedings following the transfer except for impeachment.
  6. If the case is not transferred, the judge who conducted the hearing may not over objection of an interested party preside at the hearing on the petition. If the case is transferred to a court of which the judge who conducted the hearing is also a judge, the judge likewise is disqualified over objection from presiding in the prosecution.
  7. An individual at least twenty years of age who committed an offense while a child and was not adjudicated for the offense in juvenile court may be prosecuted in district court as an adult, unless the state intentionally delayed the prosecution to avoid juvenile court jurisdiction. The district court has original and exclusive jurisdiction for the prosecution under this subsection.

Source:

S.L. 2021, ch. 245, § 25, effective July 1, 2021.

27-20.4-22. Court order required for removal of child.

An order of disposition or other adjudication in a proceeding under this chapter, in cases in which a child is removed from the home of a parent, custodian, or guardian for the reason that continuation in such home would be contrary to the welfare of the child, must specifically state that a continuation of the child in the home of the parent, custodian, or guardian would be contrary to the welfare of the child.

Source:

S.L. 2021, ch. 245, § 25, effective July 1, 2021.

27-20.4-23. Limitations of orders of disposition.

  1. An order of disposition may not exceed twelve months from disposition unless extended by the court. The director or designee may request two extensions up to four months each for the child to complete the treatment goals of the court order and the case plan.
  2. An order of disposition committing a delinquent child to the division of juvenile services may not exceed twelve months. The court may extend the order for an additional twelve-month period, if:
    1. A hearing is held upon motion of the division, or on the court’s own motion, prior to the expiration of the order;
    2. Reasonable notice of the hearing and an opportunity to be heard are given to the child and the parent, guardian, or other custodian;
    3. The court finds the extension is necessary for the treatment or rehabilitation of the child and has determined that such treatment cannot be provided in their home community; and
    4. The extension does not exceed twelve months from the expiration of an order limited by subsection 3 or two years from the expiration of any other limited order.
  3. Except as provided in subsection 2, an order of disposition pursuant to which a child is placed in foster care may not continue for more than twelve months after the child is considered to have entered foster care. A permanency hearing must be conducted before the extension of any court order limited under this subsection. Any other order of disposition may not continue in force for more than twelve months.
  4. The court may terminate an order of disposition before the expiration of the order.
  5. Except as provided in subsection 2, the court may terminate an order of disposition or extension before its expiration, on or without an application of a party, if it appears to the court the purposes of the order have been accomplished. If a party may be adversely affected by the order of termination, the order may be made only after reasonable notice and opportunity to be heard have been given to the party.
  6. When the child attains the age of twenty years, all orders affecting the child then in force terminate and the child is discharged from further obligation or control.

Source:

S.L. 2021, ch. 245, § 25, effective July 1, 2021.

27-20.4-24. Reasonable efforts to prevent removal or to reunify — When required.

  1. As used in this section, “reasonable efforts” means the exercise of due diligence, by the agency granted authority over the child under this chapter, to use appropriate and available services to meet the needs of the child and the child’s family in order to prevent removal of the child from the child’s family or, after removal, to use appropriate and available services to eliminate the need for removal, to reunite the child and the child’s family, and to maintain family connections. In determining reasonable efforts to be made with respect to a child under this section, and in making reasonable efforts, the child’s health and safety must be the paramount concern.
  2. Except as provided in subsection 4, reasonable efforts must be made to preserve families, reunify families, and maintain family connections:
    1. Before the placement of a child in foster care, to prevent or eliminate the need for removing the child from the child’s home;
    2. To make it possible for a child to return safely to the child’s home;
    3. Whether and, if applicable, to place siblings in the same foster care, relative, guardianship, or adoptive placement, unless it is determined that such a joint placement would be contrary to the safety or well-being of any of the siblings; and
    4. In the case of siblings removed from the home of the siblings who are not jointly placed, to provide for frequent visitation or other ongoing interaction between the siblings, unless it is contrary to the safety or well-being of any of the siblings.
  3. If the court or the child’s custodian determined that continuation of reasonable efforts, as described in subsection 2, is inconsistent with the permanency plan for the child, reasonable efforts must be made to place the child in a timely manner in accordance with the permanency plan and to complete whatever steps are necessary to finalize the permanent placement of the child.
  4. Reasonable efforts of the type described in subsection 2 are not required if:
    1. A court of competent jurisdiction has determined a parent has subjected a child to aggravated circumstances; or
    2. The parental rights of the parent, with respect to another child of the parent, have been involuntarily terminated.
  5. Efforts to place a child for adoption, with a fit and willing relative or other appropriate individual as a legal guardian, or in another planned permanent living arrangement, may be made concurrently with reasonable efforts of the type described in subsection 2.
  6. Removal of a child from the child’s home for placement in foster care must be based on judicial findings stated in the court’s order, and determined on a case-by-case basis in a manner that complies with the requirements of titles IV-B and IV-E of the federal Social Security Act [42 U.S.C. 620 et seq. and 42 U.S.C. 6701 et seq.], as amended, and federal regulations adopted under those federal laws, provided that this subsection may not provide a basis for overturning an otherwise valid court order.
  7. For the purpose of section 27-20.3-17, reasonable efforts were made under this section to meet the child’s needs before a foster care placement for a child remaining in care for continued foster care purposes.

Source:

S.L. 2021, ch. 245, § 25, effective July 1, 2021.

27-20.4-25. Law enforcement and correctional facility records.

  1. Unless a charge of delinquency is transferred for criminal prosecution under section 27-20.4-20, the interest of national security requires, or the court otherwise orders in the interest of the child, the law enforcement and correctional facility records and files of a child alleged or found to be delinquent or in need of services or protection are not open to public inspection; but inspection of these records and files is permitted by:
    1. A juvenile court having the child before the court in any proceeding;
    2. Counsel for a party to the proceeding;
    3. The officers of public institutions or agencies to whom the child is or may be committed;
    4. Law enforcement officers of other jurisdictions if necessary for the discharge of official duties of the officers;
    5. A court in which the child is convicted of a criminal offense for the purpose of a presentence report or other dispositional proceeding, or by officials of correctional facilities to which the child is detained or committed, or by the parole board, the governor, or the pardon advisory board, if one has been appointed, in considering the child’s parole or discharge or in exercising supervision over the child;
    6. The professional staff of the uniform crime victims compensation program if necessary for the discharge of the duties of the professional staff pursuant to chapter 54-23.4; and
    7. A superintendent, assistant superintendent, principal, or designee of the school in which the child is currently enrolled or of a school in which the child wishes to enroll.
  2. Notwithstanding that law enforcement records and files of a child alleged or found to be delinquent or in need of services or protection are not open to public inspection, this section does not limit the release of general information that does not identify the identity of the child.

Source:

S.L. 2021, ch. 245, § 25, effective July 1, 2021.

27-20.4-26. Substance use programming.

  1. If a child is subject to nonjudicial adjustments under this chapter and is found to be delinquent under section 27-20.4-16, or is found to be in need of services or protection under section 27-20.3-16, the juvenile court may require a substance use screening and subsequent programming to appropriately address:
    1. A child who is found to have violated section 39-08-01 or equivalent; or
    2. If a child is found to have an alcohol concentration of at least two one-hundredths of one percent by weight at the time of performance of a test within two hours after driving or being in physical control of a motor vehicle.
  2. If a child is subject to informal adjustment under this chapter and is required to participate in the twenty-four seven sobriety program, the period of participation may not exceed six months.
  3. If a child required to participate in the twenty-four seven sobriety program under this section fails to comply with program requirements without being excused, the testing site shall notify the juvenile court and refer the child to the juvenile court for further disposition. The child may not be detained or otherwise taken into custody without authorization from the juvenile court.
  4. If the juvenile court requires the child to participate in a juvenile drug court program, the juvenile court may waive the participation in the twenty-four seven sobriety program requirements of this section.

Source:

S.L. 2021, ch. 245, § 25, effective July 1, 2021.

27-20.4-27. Tribal juvenile services cooperative agreement — Report to legislative management. [Expires July 31, 2023]

  1. The department of corrections and rehabilitation, through the division of juvenile services; the supreme court, through the office of the state court administrator; and the Indian affairs commission may negotiate and enter a memorandum of understanding with the tribal government of a federally recognized Indian tribe in the state for the purpose of accepting and providing for, in accordance with this chapter, the treatment and rehabilitation of tribal juveniles who have been adjudicated in tribal court under tribal or federal laws. Under the pilot program and terms of a memorandum of understanding:
    1. The tribal government, the department of corrections and rehabilitation, and the juvenile court may exchange information relevant to the treatment and rehabilitation needs of a tribal juvenile and the juvenile’s family, including tribal court orders, medical and psychiatric reports, law enforcement reports, and other information pertinent to the referral;
    2. The juvenile court and the department of corrections and rehabilitation shall provide services based on the individualized need of each tribal juvenile referred to and accepted by the tribal court, juvenile court, and department of corrections and rehabilitation;
    3. The juvenile court and the department of corrections and rehabilitation shall maintain regular contact with the tribe regarding each tribal juvenile who has been placed in the supervision of the respective agency; and
    4. The juvenile court and the department of corrections and rehabilitation may limit the number of tribal juveniles accepted based on criteria developed by the juvenile court and the availability of state resources and services.
  2. Before July first of each even-numbered year, the department of corrections and rehabilitation, the juvenile court, and the Indian affairs commission shall report and make recommendations to the legislative management on the status, effectiveness, performance, and sustainability of a memorandum of understanding established under this section.

Source:

S.L. 2021, 1st Sp. Sess. ch. 550, § 4, effective December 1, 2021.

CHAPTER 27-21 Division of Juvenile Services

27-21-00.1. Definitions.

As used in this chapter:

  1. “Placement hearing” means a review of the placement of a child by a team of at least three individuals, selected by the division director, who have not had a direct involvement with the child. The child, or the child’s representative, must be given the opportunity to inform the reviewing team of the child’s interest and concerns. A summary record of these proceedings must be made.
  2. “Temporary placement” means the placement of a child who may be a danger to self or others in a facility or setting for a short period of time until the most appropriate placement can be determined for the child. A temporary placement may also be the prompt removal of a child from a placement into an alternative setting until another more appropriate setting can be found.

Source:

S.L. 1989, ch. 157, § 2.

27-21-01. Creation of division of juvenile services — Director.

A division of juvenile services is hereby created and established with the powers and duties prescribed by this chapter. The division of juvenile services must be created within the department of corrections and rehabilitation, and its chief administrative officer must be appointed by the director of the department of corrections and rehabilitation and must be known as the director of the division of juvenile services. On July 27, 1989, each child committed to the custody of the state youth authority will, by operation of law, be committed to the custody of the division of juvenile services subject to the order committing the child.

Source:

S.L. 1969, ch. 290, § 1; 1979, ch. 174, § 3; 1981, ch. 486, § 15; 1989, ch. 157, § 3.

27-21-02. Division of juvenile services — Powers and duties.

The division of juvenile services is the administrative agency which shall take custody of delinquent and unruly children committed to its care by the juvenile courts. Upon committing a child to the custody of the division of juvenile services, the juvenile court, law enforcement officers, and other public officials shall make available to the division of juvenile services all pertinent data in their possession with respect to the child. Upon taking custody or if authorized by the court prior to receiving custody of a child, the division of juvenile services shall process the child through such diagnostic testing and evaluation programs as may be necessary to determine the treatment and rehabilitation which is in the best interest of the child and in the best interest of the state. In doing so, the division of juvenile services may utilize the psychological, addiction, psychiatric, career and technical education, medical, and other diagnostic and testing services that are available, examine all the pertinent circumstances, and review the reasons for the child’s commitment. Upon completion of the diagnostic testing and evaluation of a child committed to its custody, the division shall make disposition under subsection 1, 2, or 3 and inform the court of its disposition. Upon completion of the diagnostic testing and evaluation of a child not in its custody, the division shall develop and recommend to the juvenile court an individualized treatment and rehabilitation plan for the child. This plan must include recommendations for the disposition of the child as follows:

  1. Placement in the care of the child’s parent, relative, guardian, or in a foster home or suitable private institution licensed by the state for the care or treatment and rehabilitation of children;
  2. Placement in the care of the North Dakota youth correctional center; or
  3. Placement in the care of a career and technical education, training, or other treatment and rehabilitation institution for children or young adults within this state or in another state in the event that adequate facilities for the child’s treatment and rehabilitation are not available within this state and the committing juvenile court concurs in the placement.
  4. If the division of juvenile services receives any money on behalf of a child committed to its custody and care under this section for child support, payments in excess of foster care maintenance payments, or money received from the social security administration, the division may establish an account for the child and use the money in a manner it determines will serve the best interests of the child, including setting aside any amounts for the child’s future needs or making all or part of the money available to the person responsible for meeting the child’s daily needs to be used for the child’s benefit.

Source:

S.L. 1969, ch. 290, § 2; 1973, ch. 120, § 29; 1979, ch. 174, § 4; 1989, ch. 157, § 4; 1995, ch. 120, § 25; 2003, ch. 138, § 74; 2009, ch. 273, § 7; 2021, ch. 245, § 27, effective July 1, 2021.

27-21-02.1. Placement procedures.

The division of juvenile services shall retain custody of the child as granted by the authority of the committing court and the Uniform Juvenile Court Act. The court in an order committing the child to the division may require court approval before a placement may be made to a more restrictive setting. All other placements may be made by the division at any time it appears to be in the child’s best interest and in the best interest of the state.

  1. A child, child’s parent, or guardian who objects to a placement to a more restrictive setting made by the division may request a placement hearing to review the placement.
  2. In an emergency, or for reasons of safety and security, the division may temporarily place a child in an appropriate facility. A child, child’s parent, or guardian who objects to the temporary placement may request a placement hearing to review the placement determined by the division.
  3. The division may conduct a permanency hearing, as authorized by section 27-20.4-23, if an appropriate permanency plan may be carried out without exceeding the division’s authority.

Source:

S.L. 1989, ch. 157, § 5; 1999, ch. 282, § 15; 2021, ch. 245, § 28, effective July 1, 2021.

27-21-03. Temporary care. [Repealed]

Source:

S.L. 1969, ch. 290, § 3; 1989, ch. 157, § 6; 1995, ch. 120, § 25; 2003, ch. 138, § 75; repealed by 2021, ch. 245, § 45, effective July 1, 2021.

27-21-04. Creation of state youth authority advisory board — Members — Meetings — Powers and duties. [Repealed]

Repealed by S.L. 1989, ch. 157, § 12.

27-21-05. Division of juvenile services to report to the committing juvenile court.

Within ten days after the completion of diagnostic testing and evaluation of a child, the division shall develop and recommend an individualized treatment and rehabilitation plan to the committing juvenile court unless the recommendation is temporary care pursuant to section 27-21-03. The division shall review each placement and the current status of each child committed to the division at least every three months to determine whether a change in placement or program is necessary for the continued accomplishment of the treatment and rehabilitation plan of the child, and shall report the findings to the committing juvenile court.

Source:

S.L. 1969, ch. 290, § 5; 1979, ch. 174, § 5; 1989, ch. 157, § 7.

27-21-06. Division of juvenile services to contract with facilities in other states for care.

  1. The division of juvenile services may contract and make placements with the appropriate agencies or departments of other states in order that they may receive care of committed children for career and technical education, training, or other treatment and rehabilitation purposes contemplated by this chapter. Before contracting with any agency or department of another state, the director of the division, or the director’s designee, shall assess the facilities that are offered by such department or agency, and, after contracting, forward to the committing juvenile court a summary on the facilities that are furnished by such agency or department and such other information pertaining thereto as may reasonably be requested.
  2. Any contract or placement entered into must provide for:
    1. Its duration.
    2. Payments to be made to the other state for maintenance and extraordinary medical and dental expenses of children received, and for participation in or receipt of rehabilitative or correctional services, facilities, programs, or treatment not reasonably included as part of normal maintenance.
    3. Participation in programs of youth employment, the crediting of payments received by children on account thereof, and the crediting of proceeds from the disposal of any products resulting from such programs.
    4. Transportation of children to and from the other state.
    5. The right of the director, or the director’s designee, to have at all reasonable times access to any institution in which a child in its care may be placed, either temporarily or otherwise, for the purpose of inspecting the facilities thereof and visiting the child under commitment to the division of juvenile services.
    6. The submission of reports by each institution in accordance with section 27-21-07 concerning the progress of treatment or rehabilitation of each child placed in its care.
    7. Such other matters as may be necessary and appropriate to fix the obligations, responsibilities, and rights of both states.

Children under the custody of the division of juvenile services who are in the care of an institution of another state are at all times subject to the jurisdiction of this state, and at any time may be removed therefrom for change of placement as provided in section 27-21-02. All children placed in care in another state must be treated in a reasonable and humane manner and must be treated equally with other children placed in care in the same institution. Placement of a child in another state does not deprive the child of any legal rights the child would have had if placed in an institution in this state.

Source:

S.L. 1969, ch. 290, § 6; 1989, ch. 157, § 8; 2003, ch. 138, § 76.

27-21-07. Report by caretaker to division of juvenile services.

Any person, agency, department, or career and technical education, training, or other treatment and rehabilitation institution, either within or outside of this state, that has received care of a child under this chapter, other than temporary care, shall:

  1. Submit to the director of the division, in such form as the director may reasonably prescribe, a quarterly report of the progress of the child; and
  2. Submit to the director of the division, in such form as the director may reasonably prescribe, any interim report of the progress of the child that the director deems necessary in the interest of the child.

Quarterly and interim reports must be made available to the committing juvenile court.

Source:

S.L. 1969, ch. 290, § 7; 1979, ch. 174, § 6; 1989, ch. 157, § 9; 2003, ch. 138, § 77.

27-21-08. Planning — Development.

The division of juvenile services shall provide treatment and rehabilitation programs and services and aid in the development of new or improved means of prevention, control, supervision, and management of children committed to its custody.

Source:

S.L. 1969, ch. 290, § 8; 1989, ch. 157, § 10.

27-21-09. Cooperation with other agencies and departments of the state — Right to inspect facilities of state institutions — Right to examine children. [Effective through August 31, 2022]

  1. The division of juvenile services may enter contracts with service providers as necessary to meet the mission of the division.
  2. The division of juvenile services shall cooperate with and receive the cooperation of the department of human services, the department of public instruction, the department of career and technical education, the juvenile courts, the state department of health, and such other agencies and departments of the state as may be necessary to carry out the objectives of this chapter.
  3. The division of juvenile services may inspect at all reasonable times the facilities of those institutions within the state it is authorized to utilize under this chapter, and may examine any child it has placed in the care of such institution, and may contract with public and private agencies to provide services for them or to retain from them required services to meet the purpose and objective of this chapter.

Source:

S.L. 1969, ch. 290, § 9; 1979, ch. 174, § 7; 1989, ch. 157, § 11; 1993, ch. 62, § 13; 1995, ch. 243, § 2; 2003, ch. 138, § 78; 2021, ch. 245, § 29, effective July 1, 2021.

Note.

Section 27-21-09 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 337 of Chapter 352, Session Laws 2021, House Bill 1247; and Section 29 of Chapter 245, Session Laws 2021, House Bill 1035.

27-21-09. Cooperation with other agencies and departments of the state — Right to inspect facilities of state institutions — Right to examine children. [Effective September 1, 2022]

  1. The division of juvenile services may enter contracts with service providers as necessary to meet the mission of the division.
  2. The division of juvenile services shall cooperate with and receive the cooperation of the department of health and human services, the department of public instruction, the department of career and technical education, the juvenile courts, and such other agencies and departments of the state as may be necessary to carry out the objectives of this chapter.
  3. The division of juvenile services may inspect at all reasonable times the facilities of those institutions within the state it is authorized to utilize under this chapter, and may examine any child it has placed in the care of such institution, and may contract with public and private agencies to provide services for them or to retain from them required services to meet the purpose and objective of this chapter.

Source:

S.L. 1969, ch. 290, § 9; 1979, ch. 174, § 7; 1989, ch. 157, § 11; 1993, ch. 62, § 13; 1995, ch. 243, § 2; 2003, ch. 138, § 78; 2021, ch. 245, § 29, effective July 1, 2021; 2021, ch. 352, § 337, effective September 1, 2022.

27-21-10. Cooperation with federal agencies and departments. [Repealed]

Repealed by S.L. 1989, ch. 157, § 12.

27-21-11. Transfer of students from the North Dakota youth correctional center to other institutions.

The director of the division of juvenile services may transfer students of the North Dakota youth correctional center to the state hospital whenever the director is satisfied, upon investigation and following appropriate standards of due process, that such transfer is advisable. If any student, so transferred, is maintained at the expense of the county from which the student was committed, the cost of the student’s maintenance in the institution to which the student is transferred must be charged to such county and must be collected therefrom upon notice to the county auditor of said county by the director.

Source:

S.L. 1991, ch. 336, § 1; 1995, ch. 120, § 25.

27-21-12. Division of juvenile services files and records confidentiality. [Effective through August 31, 2022]

  1. The files and records of the division of juvenile services relating to a juvenile committed to the division may not be disclosed directly or indirectly to any person, organization, or agency, except as provided in this section.
  2. Notwithstanding any other provisions of law relating to confidentiality, except for the confidentiality requirements of federal drug and alcohol treatment and rehabilitation laws, the division may disclose all or part of a juvenile’s files and records, including juvenile court orders, medical, psychological, education, and treatment and counseling records, to individuals employed by the following if the knowledge is reasonably necessary in the best interest of the juvenile and for the protection of others:
    1. The district court or juvenile court.
    2. A parent or legal guardian of the juvenile, the parent’s or legal guardian’s counsel, or the juvenile’s counsel, when the juvenile court has committed the juvenile to the custody of the division of juvenile services, and the records are relevant to a proceeding under chapter 27-20.4 or to a placement hearing under section 27-21-02.1, or when disclosure is necessary for the juvenile’s treatment and rehabilitation plan. If the juvenile court determines that it is against the best interests of the juvenile to disclose records to a parent or legal guardian, the juvenile court may issue an order prohibiting disclosure and describing the records that may not be disclosed.
    3. An employee or agent of any division of the department of corrections and rehabilitation when necessary to carry out the duties of the department.
    4. The department of human services or a human service zone.
    5. A licensed hospital or medical facility, a public or private treatment facility, or a residential care or treatment facility, when necessary for the evaluation, treatment, or care of a juvenile in the custody of the division of juvenile services.
    6. A law enforcement agency when the division has reasonable grounds to believe the juvenile has committed a delinquent act or has threatened to commit a delinquent act involving serious bodily injury, or when the juvenile is required to register, or is registered, under section 12.1-32-15.
    7. A school district or multidistrict special education program in which the juvenile is enrolled.
    8. The office of the attorney general.
    9. The risk management division of the office of management and budget and investigators, consultants, or experts retained by the state for the purpose of investigating and defending claims under chapter 32-12.2.
  3. A person, agency, or institution receiving information or records under this section may not redisclose the information or records and shall maintain the confidentiality of the information or records.
  4. The division may disclose nonidentifying information for research and statistical purposes.
  5. The division may disclose the files and records of a juvenile under section 27-20.2-21.
  6. The division shall disclose information to the extent necessary to comply with section 12.1-34-02.
  7. In all other cases, records and files of the division of juvenile services relating to a juvenile committed to its custody may only be open to inspection upon written leave of the juvenile court upon a showing in writing of a legitimate interest, but only to the extent necessary to respond to the legitimate interest.
  8. The records of the division relating to an individual who is or has been in the custody of the division may be disclosed to any court or probation staff for use in conducting a presentence investigation in a criminal case in which the individual is a defendant.
  9. The records of the division relating to an individual who is or has been in the custody of the division may be disclosed to the United States social security administration upon written authorization for disclosure by the individual’s parent or legal guardian if the individual is a child, or if the individual is no longer a child, by the individual.

Source:

S.L. 2001, ch. 290, § 2; 2009, ch. 273, § 8; 2019, ch. 391, § 40, effective January 1, 2020; 2021, ch. 245, § 30, effective July 1, 2021.

Note.

Section 27-21-12 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 338 of Chapter 352, Session Laws 2021, House Bill 1247; and Section 30 of Chapter 245, Session Laws 2021, House Bill 1035.

27-21-12. Division of juvenile services files and records confidentiality. [Effective September 1, 2022]

  1. The files and records of the division of juvenile services relating to a juvenile committed to the division may not be disclosed directly or indirectly to any person, organization, or agency, except as provided in this section.
  2. Notwithstanding any other provisions of law relating to confidentiality, except for the confidentiality requirements of federal drug and alcohol treatment and rehabilitation laws, the division may disclose all or part of a juvenile’s files and records, including juvenile court orders, medical, psychological, education, and treatment and counseling records, to individuals employed by the following if the knowledge is reasonably necessary in the best interest of the juvenile and for the protection of others:
    1. The district court or juvenile court.
    2. A parent or legal guardian of the juvenile, the parent’s or legal guardian’s counsel, or the juvenile’s counsel, when the juvenile court has committed the juvenile to the custody of the division of juvenile services, and the records are relevant to a proceeding under chapter 27-20.4 or to a placement hearing under section 27-21-02.1, or when disclosure is necessary for the juvenile’s treatment and rehabilitation plan. If the juvenile court determines that it is against the best interests of the juvenile to disclose records to a parent or legal guardian, the juvenile court may issue an order prohibiting disclosure and describing the records that may not be disclosed.
    3. An employee or agent of any division of the department of corrections and rehabilitation when necessary to carry out the duties of the department.
    4. The department of health and human services or a human service zone.
    5. A licensed hospital or medical facility, a public or private treatment facility, or a residential care or treatment facility, when necessary for the evaluation, treatment, or care of a juvenile in the custody of the division of juvenile services.
    6. A law enforcement agency when the division has reasonable grounds to believe the juvenile has committed a delinquent act or has threatened to commit a delinquent act involving serious bodily injury, or when the juvenile is required to register, or is registered, under section 12.1-32-15.
    7. A school district or multidistrict special education program in which the juvenile is enrolled.
    8. The office of the attorney general.
    9. The risk management division of the office of management and budget and investigators, consultants, or experts retained by the state for the purpose of investigating and defending claims under chapter 32-12.2.
  3. A person, agency, or institution receiving information or records under this section may not redisclose the information or records and shall maintain the confidentiality of the information or records.
  4. The division may disclose nonidentifying information for research and statistical purposes.
  5. The division may disclose the files and records of a juvenile under section 27-20.2-21.
  6. The division shall disclose information to the extent necessary to comply with section 12.1-34-02.
  7. In all other cases, records and files of the division of juvenile services relating to a juvenile committed to its custody may only be open to inspection upon written leave of the juvenile court upon a showing in writing of a legitimate interest, but only to the extent necessary to respond to the legitimate interest.
  8. The records of the division relating to an individual who is or has been in the custody of the division may be disclosed to any court or probation staff for use in conducting a presentence investigation in a criminal case in which the individual is a defendant.
  9. The records of the division relating to an individual who is or has been in the custody of the division may be disclosed to the United States social security administration upon written authorization for disclosure by the individual’s parent or legal guardian if the individual is a child, or if the individual is no longer a child, by the individual.

Source:

S.L. 2001, ch. 290, § 2; 2009, ch. 273, § 8; 2019, ch. 391, § 40, effective January 1, 2020; 2021, ch. 245, § 30, effective July 1, 2021; 2021, ch. 245, § 30, effective July 1, 2021; 2021, ch. 352, § 338, effective September 1, 2022.

CHAPTER 27-22 Interstate Compact on Juveniles [Repealed]

[Repealed by S.L. 2015, ch. 230, § 5]

27-22-01. Legislative findings and policy. [Repealed]

Source:

S.L. 1969, ch. 291, § 1; repealed by 2015, ch. 230, § 5, effective August 1, 2015.

27-22-02. Execution of compact — Text. [Repealed]

Source:

S.L. 1969, ch. 291, § 2; 2007, ch. 119, § 14; repealed by 2015, ch. 230, § 5, effective August 1, 2015.

27-22-03. Juvenile compact administrator. [Repealed]

Source:

S.L. 1969, ch. 291, § 3; repealed by 2015, hb1119, § 5, effective August 1, 2015.

27-22-05. Responsibilities of state departments, agencies, and officers. [Repealed]

Source:

S.L. 1969, ch. 291, § 5; repealed by 2015, ch. 230, § 5, effective August 1, 2015.

27-22-06. Additional procedures not precluded. [Repealed]

Source:

S.L. 1969, ch. 291, § 6; repealed by 2015, ch. 230, § 5, effective August 1, 2015.

27-22-07. Interstate rendition of juvenile delinquents. [Repealed]

Source:

1993, ch. 322, § 1; repealed by 2015, ch. 230, § 5, effective August 1, 2015.

CHAPTER 27-23 Judicial Conduct Commission

27-23-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Chair” means the chair of the commission and includes any acting chair.
  2. “Commission” means the judicial conduct commission.
  3. “Disciplinary counsel” means one or more attorneys appointed by the commission to gather and present evidence and act on its behalf in proceedings before the commission, a hearing panel, or the supreme court.
  4. “Hearing panel” means a four-member panel consisting of at least two citizen members of the commission, appointed by the chair to conduct a hearing and make recommendations after the filing of formal charges or a petition for transfer to incapacity inactive status.
  5. “Judge” means a justice of the supreme court, a judge of the district court, a judicial referee, a judge of a municipal court, and, in the case provided in section 29-01-14, a small claims court referee.
  6. “Shall” is mandatory, but not jurisdictional, and “may” is permissive.

Source:

S.L. 1975, ch. 283, § 1; 1981, ch. 320, § 60; 1985, ch. 339, § 2; 1987, ch. 374, § 12; 1991, ch. 326, § 99; 1993, ch. 24, § 6; 1995, ch. 294, § 1; 1997, ch. 270, § 1; 1999, ch. 277, § 1.

Cross-References.

Judicial nominating committee, see N.D. Const., Art. VI, § 13.

Rules established pursuant to this chapter, see Rules of Judicial Conduct Commission, North Dakota Court Rules Annotated.

Rules governing conduct of judges, see Rules of Judicial Conduct, North Dakota Court Rules Annotated.

27-23-02. Creation and composition of commission, terms of office, appointment, and powers.

The judicial conduct commission consists of two judges of the district court, one lawyer licensed to practice law in this state, and four citizens who are not judges, retired judges, or lawyers. Members representing the district court must be appointed by their state association and the lawyer member must be appointed by the board of governors of the state bar association of North Dakota. The citizen members must be appointed by the governor. The term of each member is three years. A member may not serve more than two full three-year terms. Membership terminates if a member ceases to hold the position that qualified the member for appointment. A vacancy must be filled by the appointing power for the remainder of the term. Any appointment to fill a vacancy not made within forty-five days after the vacancy occurs or the term of office ends must be made by the supreme court. The commission shall select one of its members as chair.

The commission has the power to investigate complaints against any judge in the state and the chair may appoint a hearing panel to conduct hearings concerning the discipline, removal, retirement, or transfer to incapacity inactive status of any judge.

Source:

S.L. 1975, ch. 283, § 2; 1981, ch. 320, § 61; 1985, ch. 339, § 3; 1991, ch. 326, § 100; 1997, ch. 270, § 2.

27-23-03. Other powers.

  1. A judge is disqualified from acting as a judge, without loss of salary, while there is pending:
    1. An indictment or an information charging the judge in the United States with a crime punishable as a felony under North Dakota or federal law; or
    2. A recommendation submitted by the commission to the supreme court for the judge’s removal or retirement.
  2. On recommendation of the commission or on its own motion, the supreme court may suspend a judge from office without salary when, in the United States, the judge pleads guilty or no contest or is found guilty of a crime punishable as a felony under North Dakota or federal law or of any other crime that involves moral turpitude under that law. If the judge’s conviction is reversed, suspension terminates and the judge must be paid the salary for the period of suspension. If the judge is suspended and the conviction becomes final, the supreme court shall remove the judge from office.
  3. On recommendation of the commission or a hearing panel of the commission, the supreme court may:
    1. Retire a judge for disability that seriously interferes with the performance of the judge’s duties and is, or is likely to become, permanent;
    2. Transfer, with the possibility of reinstatement, a judge to incapacity inactive status; or
    3. Publicly censure or remove a judge for action that constitutes willful misconduct in office, willful failure to perform duties prescribed by law or by administrative rule of the supreme court, willful violation of the code of judicial conduct as adopted by the supreme court, or habitual intemperance.
  4. A judge retired by the supreme court must be considered to have retired voluntarily. A judge removed by the supreme court is ineligible for judicial office, and pending further order of the court, the judge is suspended from practicing law in this state.
  5. The supreme court shall make rules implementing this chapter and providing for confidentiality of proceedings.
  6. The procedure provided for in this section may be used in addition to the impeachment proceedings provided for in the Constitution of North Dakota as applicable to district and supreme court judges.
  7. The commission may employ or share the employment of such officers, assistants, and other employees as it deems necessary for the performance of the duties and exercise of the powers conferred upon the commission; may arrange for and compensate medical and other experts and reporters; may arrange for attendance of witnesses, including witnesses not subject to subpoena; and may pay from funds available to it all expenses reasonably necessary for effectuating the purposes of this chapter, whether or not specifically enumerated herein. The attorney general shall, if requested by the commission, act as its counsel generally or in any particular investigation or proceeding. The commission may employ special counsel from time to time whenever it deems necessary.
  8. Each member of the commission must be allowed expenses for travel, board, and lodging incurred in the performance of official duties, as provided in sections 44-08-04 and 54-06-09.
  9. An act of the commission or hearing panel is not valid unless concurred in by at least a majority of its members.

The commission may impose private, nonpublic discipline for minor misconduct that does not warrant public discipline or may direct disposition of allegations of misconduct in other manners considered appropriate. A proceeding under this section or implementing rules of the supreme court may not be instituted for alleged acts occurring more than six years before receiving a complaint.

Source:

S.L. 1975, ch. 283, § 3; 1977, ch. 278, § 1; 1997, ch. 270, § 3.

Cross-References.

Legislative assembly to provide for retirement, discipline and removal of judges, see N.D. Const., Art. VI, §§ 12, 12.1.

Notes to Decisions

Appeal.
—Duty to Preserve Record.

That a judge may be investigated and disciplined for up to six years after alleged bias or misconduct did not excuse party from his duty to preserve the record for appeal. Kemp v. City of Grand Forks, 523 N.W.2d 406, 1994 N.D. LEXIS 232 (N.D. 1994).

Assessment of Costs.

This section authorizes the assessment of costs as a part of the disciplinary action and the proscription of awarding costs in N.D.C.C. § 27-23-11 does not apply to the assessment of costs as part of the disciplinary action. Judicial Qualifications Commission v. Cieminski, 270 N.W.2d 321, 1978 N.D. LEXIS 164 (N.D. 1978).

Clear and Convincing Evidence.

Before the supreme court may censure or remove a judge in a disciplinary proceeding, the charges must be established by clear and convincing evidence. Judicial Qualifications Comm. v. Schirado, 364 N.W.2d 50, 1985 N.D. LEXIS 259 (N.D. 1985).

Before a judge may be censured or removed, charges must be established by clear and convincing evidence. In re Disciplinary Action Against Wilson, 461 N.W.2d 105, 1990 N.D. LEXIS 201 (N.D. 1990).

North Dakota Judicial Conduct Commission used the proper definition of “clear and convincing evidence” when it determined that a judge had violated several ethical rules; a standard proffered by the judge had been expressly rejected because it created a burden of proof equivalent to or greater than the “beyond a reasonable doubt” standard. Judicial Conduct Comm. v. McGuire (In re McGuire), 2004 ND 171, 685 N.W.2d 748, 2004 N.D. LEXIS 296 (N.D. 2004).

Ex Parte Contacts.

Although more appropriate course of action would have been to require notice and a hearing, court did not find that judge’s actions in entering an ex parte N.D.R.Civ.P., Rule 60(a) order rose to the level of ethical violation for which he should receive public censure. Record did not demonstrate by clear and convincing evidence that judge willfully violated former 3(A)(4), Rules of Judicial Conduct. In re Disciplinary Action Against Wilson, 461 N.W.2d 105, 1990 N.D. LEXIS 201 (N.D. 1990).

Motion procedure, including notice and hearing, may be employed under Rule 60(a), and Supreme Court suggests that in the future to avoid accusations of improper ex parte contacts that notice and hearing procedure be employed. In re Disciplinary Action Against Wilson, 461 N.W.2d 105, 1990 N.D. LEXIS 201 (N.D. 1990).

Judgment did not accurately reflect what the judge intended in his findings, conclusions, and order for judgment. Under these circumstances, an ex parte order under N.D.R.Civ.P., Rule 60(a) was appropriate to make the judgment speak the truth. In re Disciplinary Action Against Wilson, 461 N.W.2d 105, 1990 N.D. LEXIS 201 (N.D. 1990).

Use of N.D.R.Civ.P., Rule 60(a) has been upheld but use of N.D.R.Civ.P., Rule 60(b) motion procedure is to be preferred. In re Disciplinary Action Against Wilson, 461 N.W.2d 105, 1990 N.D. LEXIS 201 (N.D. 1990).

Scope of Review.

The supreme court’s review of findings and recommendations of the commission is de novo on the record. Judicial Qualifications Comm. v. Schirado, 364 N.W.2d 50, 1985 N.D. LEXIS 259 (N.D. 1985).

Supreme Court review of Judicial Conduct Commission’s findings and recommendations is de novo on the record. The Court will accord due weight to master’s findings because master had opportunity to observe demeanor of witnesses. In re Disciplinary Action Against Wilson, 461 N.W.2d 105, 1990 N.D. LEXIS 201 (N.D. 1990).

Violation of Rules of Judicial Conduct.

Judge was suspended for a month for violating former N.D. Code Jud. Conduct Canons 3(B)(1) and (8) and N.D. Code Jud. Conduct Canon 2, R. 2.5(A) and 2.7 because (1) the judge had been censured for similar conduct in the recent past, (2) the judge’s misconduct caused detriment to a litigant and tarnished the integrity of and respect for the judiciary, (3) the judge offered no excuse for the judge’s failure to act diligently, and (4) the judge did not adequately use remedies adopted in the judge’s prior case to address the judge’s docket. Hagar v. Hagar, 2014 ND 33, 842 N.W.2d 873, 2014 N.D. LEXIS 33 (N.D. 2014).

Subdivision (3) of this section empowers Supreme Court, on commission’s recommendation, to censure or remove judge for action that constitutes willful violation of North Dakota Rules of Judicial Conduct. In re Disciplinary Action Against Wilson, 461 N.W.2d 105, 1990 N.D. LEXIS 201 (N.D. 1990).

Willful.

The term “willfully,” when used in disciplinary proceedings, means acts that were the performer’s free will and were not done under coercion. Judicial Qualifications Comm. v. Schirado, 364 N.W.2d 50, 1985 N.D. LEXIS 259 (N.D. 1985).

Collateral References.

Abuse or misuse of contempt power as ground for removal or discipline of judge, 76 A.L.R.4th 982.

Law Reviews.

Judicial Values: The Justice Robinson Experience, 82 N.D. L. Rev. 25 (2006).

27-23-04. Cooperation with, and assistance and information to, commission.

State and local governmental bodies and departments, officers and employees thereof, and officials, officers, and employees of the courts of this state shall cooperate with and give reasonable assistance and information to the commission and any authorized representative thereof, in connection with any investigations or proceedings within the jurisdiction of the commission.

Source:

S.L. 1975, ch. 283, § 4.

27-23-05. Duty of sheriffs and police officers to serve process and execute orders of commission.

It is the duty of the sheriffs and police officers in the several counties and cities, upon request of the commission or its authorized representative, to serve process and execute all lawful orders of the commission.

Source:

S.L. 1975, ch. 283, § 5.

27-23-06. General powers of commission, hearing panel, and disciplinary counsel.

In the conduct of investigations and formal proceedings, the commission, hearing panel, or disciplinary counsel may:

  1. Administer oaths.
  2. Order and otherwise provide for the inspection of books and records.
  3. Issue subpoenas for the attendance of witnesses and the production of papers, books, accounts, documents, and testimony relevant to any investigation or formal proceeding.

The power to administer oaths, to issue subpoenas, or to make orders for or concerning the inspection of books and records may be exercised by a member of the commission or a hearing panel, unless the commission otherwise determines.

Source:

S.L. 1975, ch. 283, § 6; 1997, ch. 270, § 4.

27-23-07. Process extends to all parts of state.

In any investigation or formal proceeding under this chapter, process, wherever issued, extends to all parts of the state. A person is obliged to attend as a witness in any investigation or proceeding under this chapter and is punishable as provided in section 12.1-10-02 for failure to do so.

Source:

S.L. 1975, ch. 283, § 7.

27-23-08. Petition for order compelling person to attend or testify or produce writings or things — Service of order to appear before court — Order to appear before commission or hearing panel — Contempt.

If a person refuses to attend, testify, or produce any writings or things required by subpoena, the commission or the hearing panel may petition the district court for the county in which the hearing is pending for an order compelling a person to attend and testify or produce the writings or things required by the subpoena before the commission or hearing panel. The court shall order a person to appear before it at a specified time and place to show cause why the person has not attended or testified or produced the writings or things as required. A copy of the order must be served upon the person. If it appears to the court that the subpoena was regularly issued, the court shall order a person to appear before the commission or hearing panel at the time and place fixed in the order and testify or produce the required writings or things. Upon failure to obey the order, a person must be punished as provided in section 12.1-10-02.

Source:

S.L. 1975, ch. 283, § 8; 1997, ch. 270, § 5.

27-23-09. Deposition.

In any investigation or formal proceeding under this chapter, the commission, hearing panel, or disciplinary counsel, under the North Dakota Rules of Civil Procedure, may order the deposition of a person residing within or without the state to be taken.

Source:

S.L. 1975, ch. 283, § 9; 1997, ch. 270, § 6.

27-23-10. Fees and mileage of witnesses.

Each witness, other than an officer or employee of the state or a political subdivision or an officer or employee of a court of this state, shall receive for the witness’s attendance the same fees and all witnesses shall receive the same mileage allowed by law to a witness in a civil case. The amounts must be paid by the commission from funds appropriated for the use of the commission.

Source:

S.L. 1975, ch. 283, § 10.

27-23-11. Costs.

No award of costs may be made in any proceeding before the commission, a master, or the supreme court.

Source:

S.L. 1975, ch. 283, § 11.

Notes to Decisions

Assessment of Costs.

The proscription of awarding costs in this section does not apply to the assessment of costs as part of the disciplinary action. Judicial Qualifications Commission v. Cieminski, 270 N.W.2d 321, 1978 N.D. LEXIS 164 (N.D. 1978).

27-23-12. Commission budget.

The commission is responsible for preparing and presenting to the legislative assembly a proposed biennial budget for the commission and is responsible and accountable for the expenditure of any funds appropriated. The supreme court administrator shall assist in the financial transactions of the commission by providing administrative bookkeeping services and similar related activities but has no authority to expend any funds without specific approval of the commission.

Source:

S.L. 1975, ch. 283, § 12; 1977, ch. 278, § 2.

CHAPTER 27-24 Temporary Judges

27-24-01. Appointment of eligible person to temporary judgeship.

  1. The supreme court may appoint any eligible person to serve as temporary judge in any court other than the supreme court, whenever the supreme court determines that the appointment is reasonably necessary and will promote the more efficient administration of justice. A person, except a retired justice of the supreme court or a retired judge of the district court, is eligible for appointment if the person is a resident of this state and has been engaged in the active practice of law in this state for a period of at least three years next preceding the appointment.
  2. An appointment under this section must be made by order of the supreme court. The supreme court shall provide, to the extent it deems necessary or desirable, rules and regulations for appointments under this section. No appointment made pursuant to this chapter may be for a duration longer than thirty calendar days.
  3. An appointment under this section does not become effective until the appointee subscribes and files in the office of the secretary of state an oath or affirmation substantially as follows:

I do solemnly swear (or affirm) that I will support the constitutions of the United States and the state of North Dakota, and that I will faithfully discharge the duties of the office of judge of the state of North Dakota to the best of my ability.

Source:

S.L. 1979, ch. 367, § 1; 1981, ch. 325, § 2.

Cross-References.

For provisions pertaining to the appointment of temporary judges, see Administrative Rule 8, North Dakota Court Rules Annotated.

Collateral References.

Construction and validity of state provisions governing designation of substitute, pro tempore, or special judge, 97 A.L.R.5th 537.

27-24-02. Transfer, challenge, disqualification, and supervision of person appointed.

  1. A temporary judge appointed as provided in this chapter to serve in any court, other than the supreme court, in any county or judicial district may, at any time while serving under the appointment, be transferred and assigned by the supreme court to serve as temporary judge in any one or more other counties or judicial districts during the term of the appointment.
  2. Each temporary judge appointed and qualified as provided in section 27-24-01 has, in the city, county, or judicial district assigned, all the judicial powers, duties, jurisdiction, and authority, while serving under the appointment, of a regularly elected or appointed judge of the appropriate court.
  3. The eligibility, appointment, or qualification of an appointee under section 27-24-01, or the appointee’s right to hold the position of temporary judge in any particular city, county, or judicial district while serving under the appointment, is subject to challenge only in a direct proceeding instituted for that purpose as provided by law. The proceeding may be instituted in the supreme court if it consents to take original jurisdiction thereof.
  4. A temporary judge appointed as provided in section 27-24-01 is subject to demand for change of judge as provided in section 29-15-21.
  5. A temporary judge appointed as provided in section 27-24-01 or assigned as provided in subsection 1 to a district court with one or more regularly elected or appointed and qualified judges on active duty is subject to the directions of the regular presiding judge of the district court in respect to the assignment of cases and the general administration of the business of the court. A temporary judge assigned to any other court is under the supervision of the supreme court.

Source:

S.L. 1979, ch. 367, § 1.

27-24-03. Extension and termination of appointment of temporary judge — Eligibility to appear as an attorney.

  1. It is the duty of a temporary judge appointed as provided in section 27-24-01 to hear, decide, and dispose of all cases and matters submitted to the judge as promptly as the nature of the questions involved will permit. The powers, jurisdiction, and judicial authority of the temporary judge in respect to any case or matter tried or heard while serving under the appointment shall continue beyond the expiration of the appointment so far as may be necessary to:
    1. Decide and dispose of any case or matter on trial or held under advisement.
    2. Hear and decide any motion for a new trial or for a judgment notwithstanding the verdict, or objections to any cost bill, that may be filed in the case.
    3. Settle a transcript for appeal and grant extensions of time therefor.
  2. The supreme court at any time by order may terminate the term of appointment of a temporary judge as of a date specified in the order, but termination does not affect the validity of any judgment, decree, order, or other action of the temporary judge before the effective date of the termination.
  3. A temporary judge appointed as provided in section 27-24-01 is not eligible to appear as attorney in the court to which the judge was appointed in any case tried by a jury selected from the same jury panel which was in existence during the time which that individual served as temporary judge.

Source:

S.L. 1979, ch. 367, § 1.

27-24-04. Compensation and expenses of person appointed temporary judge.

  1. A temporary judge appointed as provided in section 27-24-01 must receive as compensation for each day of service in the performance of duties under the appointment an amount equal to five percent of the gross monthly salary of a regularly elected or appointed judge of the court in which the temporary judge is to serve, or one-half of that daily compensation for services of one-half day or less. The compensation must be paid upon the certificate of the temporary judge that the services were performed for the number of days shown in the certificate and must be paid in the same manner as the salaries of the regularly elected or appointed judges are paid.
  2. A temporary judge appointed as provided in section 27-24-01 or assigned as provided in section 27-24-02 to serve outside the county in which the judge resides or maintains an office must receive, in addition to daily compensation, reimbursement for travel expenses necessarily incurred in the performance of duties as temporary judge. The expenses must be reimbursed upon the certification by the temporary judge that the expenses were actually incurred, in the same manner as like expenses of regularly elected or appointed judges are paid.

Source:

S.L. 1979, ch. 367, § 1; 1981, ch. 325, § 3; 1989, ch. 31, § 7; 1991, ch. 326, § 101.

CHAPTER 27-25 Judicial Nominating Committee

27-25-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Candidate” means any person under consideration by the committee to fill a judicial vacancy.
  2. “Chairman” means the chairman of the committee and includes any acting chairman.
  3. “Committee” means the judicial nominating committee, consisting of six members in the event of a vacancy in the office of supreme court judge and nine members in the event of a vacancy in the office of a district court judge.
  4. “Judge” means a justice of the supreme court or a judge of district court.
  5. “Nominee” means any candidate selected by the committee for inclusion on the list of candidates submitted to the governor.
  6. “Permanent member” means a person appointed to serve on the committee for all vacancies in the office of judge during that member’s term.
  7. “Temporary member” means a person appointed to serve on the committee only for the time necessary to fill a vacancy in the office of district judge in that member’s district.

Source:

S.L. 1981, ch. 330, § 1.

27-25-02. Creation and composition of committee — Terms of office — Appointment — Vacancies.

  1. A judicial nominating committee is hereby created to consist of six permanent members and three temporary members.
  2. The governor, the chief justice, and the president of the state bar association each shall appoint two permanent members to the committee, one of whom is a judge or an attorney authorized to practice law in the state and one of whom is not a judge, former judge, or attorney. The term of each member is three years. Initially, as determined by lot, two members shall serve for two years, and two members shall serve for one year. At the end of the member’s term, the appointing authority shall appoint a successor for a full three-year term. No member may serve for more than two three-year terms. A vacancy must be filled by the appointing authority for the remainder of the term. The governor shall designate one of the members as chairman of the committee.
  3. Each appointing authority shall appoint an additional temporary member, from the judicial district having a vacancy, to serve on the committee for the time necessary to fill the vacancy. If two or more vacancies in the office of district judge occur in one district at the same time, the committee may submit a combined list to the governor.
  4. The judicial nominating committee for vacancies in the office of supreme court judge must be composed of the six permanent members. If two or more vacancies occur in the office of the supreme court judge at the same time, the committee may submit a combined list of candidates to the governor.
  5. The executive director of the state bar association shall serve as nonvoting secretary of the committee.

Source:

S.L. 1981, ch. 330, § 2.

27-25-03. Submission of nominee list to governor.

The committee shall submit to the governor a list of not fewer than two nor more than seven nominees for appointment within sixty days after receipt of written notice from the governor that a vacancy in the office of judge exists. No list of nominees submitted to the governor by the committee is valid unless concurred in by a majority of its members and certified by the chairman. If the committee fails to submit a list of at least two nominees within the time prescribed by this section, the governor may direct that the committee be reconvened or proceed according to subsection 3 of section 27-25-04. If the committee fails to submit a list of at least two nominees to the governor within sixty days after receipt of written notice from the governor directing the committee to reconvene, the governor shall proceed according to subsection 3 of section 27-25-04.

Source:

S.L. 1981, ch. 330, § 3.

27-25-04. Governor to appoint or call special election.

Within thirty days after receipt of the list of nominees, the governor shall do any of the following:

  1. Fill the vacancy by appointment from the list of nominees submitted by the committee.
  2. Return the list of nominees and direct the committee to reconvene.
  3. Call a special election to fill the vacancy for the remainder of the term.

If the governor determines to call a special election to fill the vacancy, the governor shall issue a writ of election to the auditors of the counties in the district in which the district vacancy occurs commanding them to notify the boards of election in the counties to hold a special election at a time designated by the governor. If the governor determines to call a special election within eighty-one days of the time of the next general election, the special election must be held at the same time as the general election.

Source:

S.L. 1981, ch. 330, § 4; 1997, ch. 271, § 1; 2013, ch. 176, § 20.

27-25-05. Powers and duties.

The committee shall:

  1. Seek out qualified judicial candidates and may solicit judicial candidate nominations from any citizen.
  2. Make such inquiry into the qualifications of each candidate, including legal knowledge and ability, judicial temperament, experience, and moral character, as the committee deems appropriate in order to secure a list of the most highly qualified nominees.

Source:

S.L. 1981, ch. 330, § 5.

27-25-06. Submission of names by citizens — Withdrawal.

A person may submit a name of any qualified citizen for consideration as a candidate. Submission must be in writing on forms provided by the committee. Any candidate may withdraw from consideration by written request to the chairman of the committee.

Source:

S.L. 1981, ch. 330, § 6.

27-25-07. Committee members ineligible for vacancy appointment.

No member of the committee may be considered as a candidate or nominee during the member’s term on the committee.

Source:

S.L. 1981, ch. 330, § 7.

27-25-08. Expenses of committee.

Committee members must be allowed expenses for travel, board, and lodging incurred in the performance of their duties as provided in sections 44-08-04 and 54-06-09.

Source:

S.L. 1981, ch. 330, § 8.

27-25-09. Committee budget.

The supreme court shall prepare and present to the legislative assembly a proposed biennial budget for the committee.

Source:

S.L. 1981, ch. 330, § 9.

CHAPTER 27-26 Nominating County Court Judges [Repealed]

[Repealed by S.L. 1991, ch. 326, § 203]