How Does North Dakota’s Temporary Court of Appeals Work?

North Dakota’s Temporary Court of Appeals is an adjunct court set up by the Supreme Court to help carry out its duties. The court exercises original or appellate jurisdiction only on cases assigned to it by the Supreme Court. The Supreme Court may establish a Temporary Court of Appeals if certain requirements are met, and the court’s workload requires the temporary court. Authorization for the Court of Appeals must be granted by the Legislature every four years.

Cases are assigned to the Court of Appeals after giving due consideration to the following:

• The workload of the Supreme Court
• The role of the Court of Appeals to review and correct errors
• If the case is of substantial public interest or import to the clarification or development of the law

Cases assigned to the Court of Appeals consider existing legal principles. With due regard to the above considerations, cases that are often assigned to the Court of Appeal are:

• Appeals of Misdemeanor convictions
• Appeals of mental-health commitment proceedings
• Appeals of decrees or modifications in divorce and separation proceedings
• Appeals from cases originated in municipal courts.
• Appeals from cases originated in a small-claims court.
• Appeals from trial court orders on motions for summary judgment
• Appeals from cases originating with administrative proceedings
• Appeals from cases originating under the Uniform Juvenile Court Act

The North Dakota Supreme Court may reassign a case from the Court of Appeals to itself at any time before the delivery of an opinion. Where this is done, the Court of Appeals cannot take further actions in that case. Cases assigned to the Temporary Court of Appeals are considered as executed under the Supreme Court’s jurisdiction. Consequently, most decisions made by the Court of Appeal are final. However, in some cases, persons may apply to the Supreme Court to review any such decisions.  

For Court of Appeals cases, documents are filed at the office of the clerk of the Supreme Court. Interested parties may file documents electronically via the Supreme Court’s e-portal. The interested party must create an account by providing the name and bar ID number. All parties are mandated to file documents electronically, except for self-represented parties and inmates. 

Court of Appeals panels are made up of three justices, and a majority must make all decisions of the panel. After a decision, the panel must concisely state its reasons in writing. This decision must be filed with the Supreme Court Clerk and kept with other Supreme Court records. Dissenting or concurring judges may attach written opinions to the court’s official decision. 

Any of the parties to a suit may file a petition for rehearing at the Court of Appeals. The court is empowered to dispose of the petition according to the Rules of the Supreme Court. Where a party is aggrieved by a decision or order of the Court of Appeals, the litigant may make a petition for review to the Supreme Court.

A petition in this manner must be made within 14 days of the filing of the judgment or order. An aggrieved party is not mandated to file a petition for rehearing before filing a petition for review. When filing the petition for rehearing, a brief not exceeding ten pages must be filed along with the petition, explaining why the court should grant it. If the petition is granted, the court will decide how briefs will be exchanged before oral arguments. 

The Supreme Court will consider the following factors in a decision to grant or refuse a petition for rehearing:

• Whether the Court of Appeals decided a matter that has not been decided by the Supreme Court
• Whether the decision has gone contrary to a published decision of the Court of Appeals
• Whether there was a dissenting opinion in the Court of Appeals
• Whether the decision of the Court of Appeals conflicts with a decision of the North Dakota Supreme Court or the United States Supreme Court
• Whether after the decision, a majority of the Court of Appeals judges certify that it is in the interest of justice or public interest for the Supreme Court to review the decision. 
• Whether the Court of Appeals has flouted established judicial procedures or has sanctioned such behavior by a trial court

North Dakota Temporary Court of Appeals judges choose persons to form a panel of three. These persons may be active or retired district judges, retired Supreme Court justices, surrogate judges, or lawyers. A chief judge is then selected from the panel by the chief justice of the Supreme Court. Active or retired district justices appointed to the Court of Appeals cannot sit over appeals that involved their participation.

To be eligible as a Court of Appeals judge, the candidate must be a licensed attorney and a citizen of the United States and North Dakota. Retired justices of the Supreme Court, retired District Court judges, and lawyers appointed to a Court of Appeals panel are entitled to compensation. Compensation shall be calculated daily at 5% of the gross monthly salary of a Supreme Court justice. Active District Court judges appointed to a panel are not entitled to any additional compensation. 

Court of Appeals panels often sit at Bismarck but are permitted to sit at any location deemed suitable and convenient for the exercise of their duties. These panels are also required to make decisions following Rule 36 of the North Dakota Rules of Appellate Procedure.  

Note that not all decisions of the Court of Appeals are made available to the public. Decisions by the Court of Appeals are only published if these decisions satisfy one of the following conditions: 

• Alters an existing rule or establishes a new rule
• Criticizes or explains an existing law 
• Clarifies a conflict of authority
• Contributes significantly to legal literature and does not replicate a previous decision.
• Involves an issue of continued public interest
• Applies established law to a factual situation in a different way from existing ways

The opinion is published if at least one of the deciding judges certifies that one of the above standards has been met. Court of Appeals decisions are available via the Supreme Court Docket search portal. Cases may be filtered using parameters such as:

• Docket number
• Author
• Title
• NW Citation
• ND Citation 
• Topic

Typically, decisions from the Court of Appeals are given between 60 and 90 days from the scheduled argument date.