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