State v. G.C.H, 102919 NDSC, 20190136

Docket Nº20190136
Opinion JudgeCROTHERS, JUSTICE.
Party NameState of North Dakota, Plaintiff and Appellee v. G.C.H, Defendant and Appellant
AttorneyJoseph Nwoga, Assistant State's Attorney, Jamestown, ND, for plaintiff and appellee. Ashley Schell, Fargo Public Defender Office, Fargo, ND, for defendant and appellant.
Judge PanelDaniel J. Crothers Lisa Fair McEvers Jon J. Jensen Jerod E. Tufte Gerald W.VandeWalle, C.J.
Case DateOctober 29, 2019
CourtSupreme Court of North Dakota

2019 ND 256

State of North Dakota, Plaintiff and Appellee

v.

G.C.H, Defendant and Appellant

No. 20190136

Supreme Court of North Dakota

October 29, 2019

Certified question from the District Court of Stutsman County, Southeast Judicial District, the Honorable Cherie L. Clark, Judge.

CERTIFIED QUESTION NOT ANSWERED, SUPERVISORY JURISDICTION EXERCISED. AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

Joseph Nwoga, Assistant State's Attorney, Jamestown, ND, for plaintiff and appellee.

Ashley Schell, Fargo Public Defender Office, Fargo, ND, for defendant and appellant.

OPINION

CROTHERS, JUSTICE.

[¶1] This case is before the Supreme Court on the Stutsman County district court's certified question of law whether a married person under the age of eighteen is a "child" under the Juvenile Court Act. We decline to answer the certified question. However, this is an appropriate case in which to exercise our supervisory jurisdiction and reverse and remand with directions to vacate the judgment and to dismiss the case for lack of subject matter jurisdiction.

I

[¶2] G.C.H. is charged with five crimes which allegedly occurred when G.C.H. was sixteen and seventeen years old. G.C.H. was married when the alleged crimes occurred and still is married. G.C.H. filed a motion to dismiss for lack of subject matter jurisdiction due to his age, claiming the proper jurisdiction was in juvenile court. The district court denied the motion, finding G.C.H. was not a child under North Dakota law because he was married. After other proceedings, G.C.H. filed a motion to certify the question to the North Dakota Supreme Court. The district court granted G.C.H.'s motion and certified the following question: "Is the Defendant a 'child' under N.D.C.C. § 27-20-04 [sic], who would therefore be under the exclusive jurisdiction of the Juvenile Court requiring the District Court to dismiss the above-referenced cases and refer the cases to Juvenile Court?"

[¶3] G.C.H. argues a married defendant is a "child" under N.D.C.C. § 27-20-02(4)(b) if the individual was under age twenty when the crime is charged, the defendant has committed delinquent acts, and the delinquent acts were allegedly committed while under the age of eighteen. Therefore, G.C.H. argues jurisdiction belongs in the juvenile court rather than the district court.

II

[¶4] G.C.H. argues the requirements of N.D.R.App.P. 47.1(a)(1) are met and the Supreme Court should answer the certified question of law. The State did not oppose the motion to certify the question. A state district court may certify questions of law to the Supreme Court when two conditions are met: "(A) There is a question of law involved in the proceeding that is determinative of the proceeding; and

(B) It appears to the district court that there is no controlling precedent in the decisions of the supreme court."

N.D.R.App.P. 47.1(a)(1). G.C.H. argues prong A is met because the certified question is principally determinative of the proceeding. At oral argument G.C.H. argued jurisdiction has been the only issue in this case thus far. Therefore, answering the question would be dispositive of the case. G.C.H. also argues time is of the essence because he is subject to juvenile court only until he is twenty years old and the answer to the certified question is vital to the case because the result is vastly different if the juvenile court has jurisdiction.

[¶5] For prong B, G.C.H. relies on the district court's statement, "there is a question of law that is determinative of the proceeding and it appears that there is no controlling case law in the decisions of the North Dakota Supreme Court and that there is a question of statutory interpretation." G.C.H. argues the four cases addressing N.D.C.C. § 27-20-02(4) do not provide the district court with controlling precedent. (See State v. Arot, 2013 ND 182, 838 N.W.2d 409; State v. Woodrow, 2011 ND 192, 803 N.W.2d 572; Interest of C.S., 382 N.W.2d 381 (N.D. 1986); Interest of E.B., 287 N.W.2d 462 (N.D. 1980).) Therefore, the Supreme Court has authority to answer the certified question.

[¶6] This Court has discretion to hear certified questions of law by the district court and may refuse to consider a certified question if it is frivolous, interlocutory in nature, or not dispositive of the issues before the district court. N.D.R.App.P. 47.1(c)(1). A certified question will not be answered unless disposition of the case depends wholly or principally upon the construction of law determined, regardless whether the answer is in the negative or affirmative. Gelinske v. Farmers Grain & Trading Co, 446 N.W.2d 261, 262 (ND 1989); Braaten v Deere & Co, 547 N.W.2d 751, 752 (ND 1996) Answering a certified question that does not wholly or principally dispose of the issues in the case would constitute issuing an impermissible advisory opinion State v Larson, 313 N.W.2d 750, 757 (ND 1981) (VandeWalle, J, concurring in part and dissenting in part). "The statutes authorizing certification of questions of law to this court do not contemplate our giving advisory opinions." Gelinske, 446 N.W.2d at 263.

[¶7] Here, neither a negative nor affirmative answer would be dispositive of the case. If G.C.H. is a child under N.D.C.C. § 27-20-02(4), the juvenile court still would need to determine whether he was delinquent. If G.C.H. is not a child under N.D.C.C. § 27-20-02(4), a jury still would need to determine if G.C.H. is guilty of the alleged crimes. Therefore, the certified question is not determinative of the proceedings. N.D.R.App.P. 47.1(a)(1)(A). We decline to answer the certified question.

III

[¶8] Notwithstanding our declination to answering the certified question we conclude this case justifies exercising supervisory jurisdiction. This Court has authority to issue supervisory writs under N.D. Const. art. VI, § 2, and N.D.C.C. § 27-02-04. State v. Haskell, 2001 ND 14, ¶ 4, 621 N.W.2d 358 (citing Dimond v. State Bd. of Higher Educ., 1999 ND 228, ¶ 19, 603 N.W.2d 66). The authority to issue supervisory writs is discretionary; it cannot be invoked as a matter of right. Trinity Med. Ctr. v. Holum, 544 N.W.2d 148, 151 (N.D. 1996); Odden v. O'Keefe, 450 N.W.2d 707, 708 (N.D. 1990). This Court determines whether it should exercise its original jurisdiction to issue remedial writs on a case-by-case basis. Haskell, at ¶ 4. "Courts generally will not exercise supervisory jurisdiction where the proper remedy is an appeal merely because the appeal may involve an increase of expenses or an inconvenient delay." Ziegler v. Meadowbrook Ins. Group,...

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