SUPERVISORY WRITS CAN PROVIDE REMEDY IN UNUSUAL CASES
SUPERVISORY WRITS CAN PROVIDE REMEDY IN UNUSUAL CASES
MIKE HAGBURG Attorney at Law
Appellate Rule 21 took effect March 1 , 2004 . It was then entitled “ Supervisory Writs ” and was patterned after Federal Appellate Rule 21 on extraordinary writs . The rule provided a procedure for parties to follow when seeking supervisory writs .
Rule 21 has been amended several times . Most significantly , it was amended effective October 1 , 2014 , to make it applicable to all writ petitions filed in the Supreme Court and to clarify that filing fees apply to writ petitions .
Rule 21 did not create the supervisory writ – the writ has a long history in North Dakota law . Article VI , § 2 of the North Dakota Constitution and N . D . C . C . § 27-02-04 give the Supreme Court the power to supervise inferior courts .
In State ex rel . Red River Brick Corporation v . District Court of Grand Forks County , 24 N . D . 281 , 38 N . W . 988 , 990 ( N . D . 1912 ), the Court explained this supervisory power “ was granted so there might be some method by which the harmonious working of our judicial system could be insured , and to meet emergencies , and where other relief provided is inadequate or incomplete .”
While there are dozens of Supreme Court opinions in which supervisory jurisdiction is discussed , petitions for supervision are rarely granted . Indeed , the Court has stated on several occasions that “[ w ] e exercise our authority to issue supervisory writs rarely and cautiously , and only to rectify errors and prevent injustice in extraordinary cases when no adequate alternative remedy exists .” Sauvageau v . Bailey , 2022 ND 86 , ¶ 7 , 973 N . W . 2d 207 .
A major “ alternative remedy ” to a supervisory writ is an appeal . As the Court explained in Red River Brick , 38 N . W . at 990 , “[ i ] f it was intended by the Constitution framers that this court should exercise its superintending power over the inferior courts , at the behest of litigants , for the purpose of reviewing and revising their decisions , there would have been no occasion to make a separate specification of appellate power , as was done .”
Unusual circumstances typically exist in the rare case the Court decides to exercise its supervisory authority . In Pierce v . Anderson , 2018 ND 131 , 912 N . W . 2d 291 , a plaintiff in a medical malpractice case failed to provide an admissible expert opinion within the statutory deadline . The defendants moved to dismiss but the district court denied their motion . The defendants then petitioned the Court to exercise its supervisory power to dismiss the case .
The district court had denied dismissal because it reasoned the alleged malpractice fell under the “ obvious occurrence ” exception to the expert witness requirement . After a lengthy discussion , the Court concluded the exception did not apply because “ the alleged occurrence of professional negligence is not plainly within the knowledge of a layperson , and a layperson could not find negligence without the benefit of expert testimony .” Pierce at ¶ 17 . The Court therefore granted the request for a supervisory writ and directed the district court to dismiss the complaint consistent with statutory requirements .
The Court has exercised its supervisory power in some criminal cases . In State v . Jorgenson , 2018 ND 169 , 914 N . W . 2d 485 , the defendant entered into a pretrial diversion agreement . When the district court ordered that $ 50,000 in restitution be paid as a condition of dismissal , the defendant objected and subsequently petitioned the Court to exercise its supervisory jurisdiction .
The Court reasoned , because the pretrial diversion agreement could not be appealed , there were no adequate alternative remedies for the defendant and the exercise of supervisory jurisdiction was appropriate . Jorgenson at ¶ 5 . The Court observed that the “ amount of restitution ordered is large , larger than the maximum fine that could be imposed for the charged offenses ” and it ultimately ordered the pretrial diversion agreement be vacated . Id .
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