TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 3.3, N.D.R.Ct.; Change of Judge for Postjudgment Motion or Proceeding
At its January 24-25 meeting, the Committee considered a request from Judge Wefald to amend N.D.R.Ct. 3.3. Judge Wefald asked that a new paragraph be added to N.D.R.Ct. 3.3 authorizing a judge from the same judicial district in which a child support order or judgment was entered to amend or enforce the order or judgment, regardless of whether the judge originally ordered entry of the order or judgment. The point was made at the January meeting that such a change could lead to quicker and less costly resolution of child support issues in rural communities served by traveling judges.
It was proposed at the January meeting that, if N.D.R.Ct. 3.3 was amended to allow postjudgment reassignment of judges in child support cases, language should be added to allow the parties to object to a judge reassignment. In the version of N.D.R.Ct. 3.3 provided, such an objection provision is included as subdivision (b) of the rule.
Under the proposed provision, parties are allowed to object to reassignments made under paragraphs (a)(3) and (a)(4) of the rule. Reassignment under paragraph (a)(1) of the rule occurs when a judge is unable to act, so allowing objection to such reassignment would be pointless. Reassignment under paragraph (a)(2) of the rule occurs when a party requests a new judge under N.D.C.C. § 29-15-21(3). Because this statute allows automatic reassignment, allowing objection to such reassignment would also be pointless.
The Committee moved to hold over the proposed amendments to N.D.R.Ct. 3.3 so staff could perform additional research on whether the proposed amendments were in harmony with North Dakota law on judge assignment and jurisdiction. The results of this research are discussed below.
Under North Dakota law, district courts have original jurisdiction over "all causes." N.D. Const. art. VI, § 8; N.D.C.C. § 27-05-06. District court jurisdiction over a matter is not lost when a judge is changed. Thompson v. Peterson, 546 N.W.2d 856 (N.D. 1996). Therefore, a judge reassignment in a child support matter under the proposed amendments to N.D.R.Ct. 3.3 could be accomplished without affecting the district court'§ jurisdiction.
The Legislature approves of postjudgment changes of judges in child support matters. Under N.D.C.C. § 29-15-21(3), "[a]ny proceeding to modify an order for alimony, property division, or child support pursuant to section 14-05-24 or an order for child custody pursuant to section 14-05-22 must be considered a proceeding separate from the original action and the fact that the judge sought to be disqualified made any ruling in the original action does not bar a demand for a change of judge."
Judge assignment, judge reassignment and judge changes are procedural matters. See Traynor v. Leclerc, 1997 ND 47, 561 N.W.2d 644. Therefore, the Supreme Court has authority to make rules relating to these matters. N.D. Const. art. VI, § 3. The Supreme Court has chosen to accept the change of judge guidelines in N.D.C.C. § 29-15-21 as "reasonable and workable." Traynor, 1997 ND 47, ¶ 14. If it chooses, however, the Supreme Court may promulgate rules that supersede, alter or expand the guidelines in N.D.C.C. § 29-15-21. Interest of D.J.H., 401 N.W.2d 694 (N.D. 1987).
Considering these authorities, amending Rule 3.3 to allow court administrators to assign different judges to handle postjudgment child support matters seems wholly consistent with North Dakota law. These authorities also suggest that further amendment to Rule 3.3 allowing parties to raise objections to such reassignment may be unnecessary, since N.D.C.C. § 29-15-21(3) recognizes postjudgment child support modification matters to be separate proceedings and allows parties to request disqualification of the judge assigned to such matters.
The Committee also requested that staff gather comments from court personnel on the proposed amendments. Court administrators generally support the proposed amendment allowing reassignment of judges to handle postjudgment child support matters. Administrators, however, raised some objections to allowing parties to block reassignment by raising objections.
Interim chief court administrator Ted Gladden said that he is in favor of giving district court administrators flexibility to reassign judges to handle postjudgment child support matters. He said with the reduction in judges, it is a luxury for administrators to send out specific judges to rural areas to handle routine matters. He stated that allowing parties to veto such judge reassignments through objections would create difficulties for personnel involved in calendaring and judge assignment.
Doug Johnson, court administrator for the South Central Judicial District, stated that he is opposed to the proposed amendment allowing objections to postjudgment judge reassignment in child support cases. Johnson explained that his district had developed and adopted the postjudgment reassignment policy locally in an effort to make its circuit riding judges "fungible." He argued that allowing parties to block postjudgment judge reassignments in child support cases would complicate the district's calendaring and judge assignment system.
On the other hand, Kathy Narlock and Lisa Moen of the Northeast Central Judicial District commented that the proposed changes to Rule 3.3 were fine and that the district had already begun sending notices to parties when a judge reassignment is planned so the parties may object.