M E M O
TO:Joint Procedure Committee
FROM:Tom Tudor/Mike Hagburg
RE:Rule 47, N.D.R.App.P.; Uniform Certification of Questions of Law
The proposed amendments to Rule 47 generally track the form and style of the 1998 amendments to the federal appellate rules -- the language and organization of the rule are amended to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Under Rule 47 (a), the rule provides that the Supreme Court may answer certified questions of law under two conditions:
1. If the proceeding before the certifying court involve questions of law of this state which may be determinative of the action before the certifying court.
2. If it appears to the certifying court that there is no controlling precedent in the decisions of the Court.
The contents of a certification order to be prepared by the certifying court, under Rule 47 (c), must include the following:
1. The questions of law to be answered.
2. A statement of facts relevant to the questions showing the nature of the controversy.
There is no requirement in the rule that the certifying court provide a statement demonstrating how the court reached its conclusion that there is no controlling precedent in the decisions of the Court, which is one of the conditions to be met under Rule 47 (a).
The Committee may wish to consider whether to add such a requirement to Rule 47 (c). Here is a proposed provision which could be added:
3. a brief statement of the law demonstrating that there is no controlling precedent in the decisions of the supreme court.
Under Rule 47.1, a question must be formulated in a manner that allows a "yes" or "no" answer. The Committee may wish to consider whether to add such a requirement to Rule 47 (c).
Under Rule 47 (f), the time for serving and filing briefs may be determined by the certifying court, otherwise, the time is governed by "these rules." This is also the case under Rule 47.1. The Committee may wish to address this matter with respect to both rules and consider whether to designate specific time guidelines for purposes of uniformity and consistency.