Malony v. Cass County Court of Increased Jurisdiction, 9858

• Decision Date: 19 December 1980
• Docket Number: No. 9858,9858
• Parties: James Leo MALONY, Kyle A. Anderson, Jacquelyn F. Andel, Michael Malony, May S. G. Wiese, Sheldon Ellig, Chris Jensen, Adelyn Morton and Lorraine Donaldson, Petitioners, v. The CASS COUNTY COURT OF INCREASED JURISDICTION, Cass County, North Dakota, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 112

301 N.W.2d 112

James Leo MALONY, Kyle A. Anderson, Jacquelyn F. Andel,

Michael Malony, May S. G. Wiese, Sheldon Ellig,

Chris Jensen, Adelyn Morton and Lorraine

Donaldson, Petitioners, v. The CASS COUNTY COURT OF INCREASED JURISDICTION, Cass

County, North Dakota, Respondent.

Civ. No. 9858.

Supreme Court of North Dakota.

Dec. 19, 1980.

Tenneson, Serkland, Lundberg, Erickson & Marcil, Fargo, for petitioners; argued by Chester J. Serkland, Fargo.

Robert Vogel, Grand Forks, Michael D. Nelson of Ohnstad, Twichell, Breitling, Arntson & Hagen, West Fargo, and Bruce D. Quick, Asst. State's Atty., Fargo, each argued for respondent.

PEDERSON, Justice.

Pursuant to Section 86 of the North Dakota Constitution, and Section 27-02-04, NDCC, petitioners have applied for issuance of a writ of supervision of the Cass County Court of Increased Jurisdiction. The writ is sought to overturn the court's order denying petitioners' motion to avoid deposition as witnesses in a criminal proceeding. We deny the application.

The criminal action which has fostered petitioners' request is the prosecution of Larson's Super Valu, Inc., a West Fargo grocery store, for violation of the State's Sunday closing law, § 12.1-30 NDCC. Larson's has alleged that other stores in the Fargo area, specifically some smaller "convenience" grocery stores, violate the same law but are not prosecuted. In order to establish the defense of discriminatory enforcement, Larson's attempted to secure from these stores, represented here by petitioners, information that would show whether or not they fit within the exceptions to the closing law and were susceptible to criminal process. Petitioners resisted questioning by claiming the Fifth Amendment protection against self-incrimination. When Larson's moved the court to compel their cooperation, the petitioners moved, under Rule 16(f), NDRCrimP, for a protective order to end discovery. The court, believing discriminatory prosecution to be a valid defense in North Dakota, decided to permit the depositions and, in accordance with § 31-01-09, NDCC, granted each petitioner immunity from possible prosecution in the wake of incriminating answers. The petitioners have continued to resist by arguing that they are now to be identified, without the benefit of trial, as criminals. They have asked this court to vacate the lower court's order which denied the request to end discovery.

In many other cases we have established guidelines for the exercise of our original jurisdiction in applications for a supervisory writ. The granting of a supervisory writ is a matter wholly discretionary with this court it is not a matter of right. We use the supervisory power rarely and with caution, and only in cases where justice is threatened and no other remedy is adequate or allowed by law. Marmon v. Hodny, 287 N.W.2d 470, 474 (N.D.1980). ¹

Ordinarily, orders relating to pretrial discovery are by nature interlocutory and not appealable. Section 28-27-02, NDCC; Northwest Airlines v. State, Through Bd. of Equal., 244 N.W.2d 708 (N.D.1976); Budge v. Anderson, 146 N.W.2d 169 (N.D.1966). However, the non-appealability of the order does not establish that petitioners are without alternative remedies. Granted, their motion to prevent the taking of depositions was denied, but still untried and available is a motion pursuant to Rule 15(...