COURT CONSIDERING RULE AMENDMENTS RELATED TO UNSWORN DECLARATIONS
MIKE HAGBURG Attorney at Law
The Joint Procedure Committee has proposed wide-ranging amendments to the rules of procedure consistent with the Uniform Unsworn Domestic Declarations Act .
The act , which is found in Chapter 31-15 of the North Dakota Century Code , generally allows an unsworn declaration that meets defined requirements to be used as an alternative to a sworn declaration , such as an affidavit .
The Supreme Court amended Civil Procedure Rule 11 in 2018 to allow unsworn declarations . In September 2019 , Criminal Procedure Rule 3 on complaints , Rule 4 on arrest warrants and summonses , and Rule 41 on search and seizure were similarly amended .
The newly proposed amendments would replace the word “ affidavit ” throughout the rules with “ declaration .” The intent of this change is to make the language and requirements of the rules consistent with those of the act .
For example , under the proposed changes the “ affidavit of mailing ” currently required under Civil Procedure Rule 4 ( k ) would become a “ declaration of mailing ” and would be prepared by a “ declarant ” rather than an “ affiant .”
While a person making an unsworn declaration does not need to have the document notarized , merely signing the document is not adequate . To be valid , an unsworn declaration must comply with the form requirements outlined in Section 31- 15-05 . Specifically , an unsworn declaration must be made “ under penalty of perjury under the law of North Dakota .”
Chapter 31-15 is derived from the Uniform Unsworn Declarations Act , which was drafted by the Uniform Law Commission and finalized in 2016 . This act was a follow-up to the Uniform Unsworn Foreign Declarations Act , which covers unsworn declarations made outside the boundaries of the United States . North Dakota adopted the foreign declarations act as N . D . C . C . ch . 31-14 in 2011 .
The federal government , under 28 U . S . Code Section 1746 , has allowed the general use of unsworn declarations since 1976 . In 2014 , Minnesota authorized the use of unsworn declarations in court documents when it adopted Minn . Stat . Section 358.116 .
A longstanding justification for allowing the use of unsworn declarations to support court documents has been to ease the burdens faced by self-represented litigants , who may not have the same access to notary publics as attorneys . The 2018 changes to Civil Procedure Rule 11 , however , were initially prompted by concerns that continuing to require notarization of documents in a world where most litigants were filing electronically wasted time and resources for parties .
Criminal Procedure Rules 3 , 4 and 41 were first amended to allow unsworn declarations after the United States Supreme Court held in Birchfield v . North Dakota , 136 S . Ct . 2160 ( 2016 ), that search warrants were required for blood tests on suspected drunk drivers . Because of this ruling , rule changes were proposed to streamline the process for applying for warrants . Rules 3 , 4 and 41 were amended in December 2016 , to allow the grounds for issuance of a search warrant to be established in a written declaration by a licensed peace officer made and subscribed under penalty of perjury . The amendments were intended to facilitate submission of electronic documents to establish the grounds for warrants .
Detailed information about the Joint Procedure Committee ’ s proposed rule amendments related to the Uniform Unsworn Domestic Declarations Act can be found on the North Dakota Supreme Court website at www . ndcourts . gov / supreme-court / dockets / 20200229 .
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