M E M O
TO: Joint Procedure Committee
FROM: Gerhard Raedeke
RE: Venue - Procedural or Substantive
This memo discusses whether venue is substantive or procedural - the difference which is generally defined as follows:
As a general rule laws which fix duties, establish rights and responsibilities among and for persons, natural or otherwise, are substantive in character, while those which merely prescribe the manner in which such rights and responsibilities may be exercised and enforced in a court are procedural.
The time, place, and method of doing an act in court properly fall within the category of procedural rules and are appropriate subjects for such regulation.
State v. Gibson Circuit Court, 157 N.E.2d 475, 478 (Ind. 1959) (emphasis added).
Venue is regarded as being procedural and the proper subject of the rule making authority of the state's highest court. The Ohio Supreme Court, in Morrison v. Steiner, 290 N.E.2d 841, 843 (Ohio 1972), observed that venue is a procedural manner and although once the private domain of the General Assembly, it is now properly within the court's rule making authority (by constitutional provision). The Washington Supreme Court, in Sherwin v. Arveson, 633 P.2d 1335, 1338 (Wash. 1981), held venue is a matter of procedure rather than substance and is therefore a proper subject for court rules which supersedes conflicting statutes. The West Virginia Supreme Court of Appeals, in State ex rel. Kenamond v. Warmuth, 366 S.E.2d 738, 740 (W. Va. 1988), stated that procedural statutes regarding venue are effective only as rules of a court and are subject to modification, suspension, or annulment by rules or procedures promulgated by the court. The court went on to say that civil venue questions are governed by the procedural rules of the court, the procedural statutes that are not inconsistent with those rules, and opinions by the court interpretating those rules and statutes. Finally, the Pennsylvania Supreme Court in Simons v. State Correction Institute, 615 A.2d 924, 925 (Pa. Cmwlth. 1992), held the court may promulgate rules governing venue under its exclusive domain to establish rules of procedure under Pa. Const. art. VI, § 10.
It appears there is ample precedent for considering venue to be a procedural matter and, therefore, properly the subject of the rule making authority of the state's highest court. As the Committee is aware, N.D. Const. art. VI, § 3, confers exclusive authority upon the Supreme Court to promulgate rules of procedure to be followed by the courts of this state. See State v. Hanson, 558 N.W.2d 611, 614 (N.D. 1996). In addition, included within the court's authority to promulgate rules is the power to supersede, alter, or expand procedural statutes. In Interest of D.H.J., 401 N.W.2d 694, 699 n.5 (N.D. 1987).
The Legislature may statutorily enact rules of court procedure. See City of Fargo v. Ruether, 490 N.W.2d 481, 483-84 (N.D. 1992). Statutorily-enacted rules of procedure which supplement the rules promulgated by the court remain in effect until superseded or amended by the court. Traynor v. Leclerc, 1997 ND 47, ¶ 8, 561 N.W.2d 644. A court-promulgated procedural rule prevails in a conflict with a legislatively enacted rule of procedure. State v. Hanson, 558 N.W.2d at 615.