State v. Morrissey, Cr. N

• Decision Date: 15 May 1980
• Docket Number: Cr. N
• Citation: 295 N.W.2d 305
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Timothy MORRISSEY, Defendant and Appellant. o. 712.
• Court: North Dakota Supreme Court

Page 305

295 N.W.2d 305

STATE of North Dakota, Plaintiff and Appellee, v. Timothy MORRISSEY, Defendant and Appellant.

Cr. No. 712.

Supreme Court of North Dakota.

May 15, 1980.

William G. Goetz, State's Atty., Hettinger, for plaintiff and appellee.

Greenwood, Greenwood & Greenwood, Dickinson, for defendant and appellant; argued by Mark L. Greenwood.

SAND, Justice.

Timothy Morrissey moved this Court to impose sanctions upon the State of North Dakota for the State's failure to file its appellate brief within the time specified in Rule 31, North Dakota Rules of Appellate Procedure.

On 20 Nov 1979 Timothy Morrissey was charged with murder in violation of § 12.1-16-01, North Dakota Century Code. A preliminary hearing was held in Adams County court on 11 Dec 1979, and Morrissey was bound over to the Adams County district court for trial. Morrissey then made an application to the district court for a writ of certiorari pursuant to Ch. 32-33, NDCC, asserting that the county court exceeded its jurisdiction in binding him over to the district court because there was insufficient evidence to establish probable cause that an offense had been committed and that it had been committed by Morrissey.

A court order was issued on 14 Dec 1979 commanding the county court to turn over to the district court the complete record of all proceedings concerning the charges against Morrissey so that the legality of the preliminary hearing could be determined. On 4 Jan 1980 a hearing on the writ was held before the Adams County district court. The district court determined that there was sufficient evidence produced at Morrissey's preliminary hearing to establish probable cause that a crime had been committed and that Morrissey had committed it. An order denying the writ of certiorari was entered by the district court and Morrissey appealed that ruling to this court.

Morrissey filed his appellate brief with the clerk of the North Dakota Supreme Court on 17 Mar 1980. The record does not reflect when Morrissey's brief was served upon the State, but counsel for Morrissey stated that it was served upon the State on 14 Mar 1980. Pursuant to Rule 31(a), NDRAppP, the State of North Dakota had 30 days after service of the appellant's brief within which to serve and file its brief with the clerk of the North Dakota Supreme Court. The State's brief was therefore due, even giving the State the benefit of the 17 Mar 1980 filing date, on 16 Apr 1980.

The State's brief had not yet been filed on 23 Apr 1980 and Morrissey moved this court, pursuant to Rule 13, NDRAppP, to impose sanctions upon the State for failing to file its brief within the time required by Rule 31(a). The sanctions sought by Morrissey were, in the alternative, reversal of the district court's judgment, rejection of any brief thereafter filed by the State, disallowance of oral argument by the State, or imposition of the costs of the motion upon the State.

Finally, on 1 May 1980 the State filed with the clerk of the North Dakota Supreme Court both its brief on the merits of Morrissey's appeal and its brief in resistance to Morrissey's motion for Rule 13 sanctions. The State's brief on the merits was at that time more than two weeks late. The State attempted to explain this tardiness as caused by "significant time problems." The State also, pursuant to Rule 31(c), NDRAppP, requested permission to be heard at oral argument on the merits of Morrissey's appeal.

The instant opinion is concerned only with Morrissey's motion for relief under Rule 13, and does not consider either the merits of Morrissey's initial appeal or the appealability of the district court's order which denied Morrissey's writ of certiorari.

Rule 13, NDRAppP, provides as follows:

"The supreme court may take any appropriate action against any person failing to perform an act required by the rules or required by court order."

The Joint Procedure Committee comment to Rule 13 states:

"The appellate process includes not only parties and their attorneys, but also court reporters, trial court clerks, trial court judges, and others. Although Rule 13 will be used sparingly, it is necessary in order to protect the appellate process from abuse. (Emphasis added.)

Thus, Rule 13 grants this court the authority to take appropriate actions upon the irresponsible and abusive practice of filing a late brief. See, State v. Lueder, 267 N.W.2d 555 (N.D.1978).

We have stated many times that an appellant's failure to comply with the Rules of Appellate Procedure could result in dismissal of the appeal. State v. Packineau, 270 N.W.2d 336 (N.D.1978); State v. Paulson, 256 N.W.2d 556 (N.D.1977); Gerhardt v. Fleck, 251 N.W.2d 764 (N.D.1977); Nodak Mutual Insurance Co. v. Loeffler, 225 N.W.2d 286 (N.D.1974). In the instant case, Morrissey requested that we reverse the judgment of the district court because of the State's failure to comply with Rule 31, NDRAppP. We think this request is functionally equivalent to an appellee's motion to dismiss and, therefore, the same reasoning is applicable. The question before us, then, is whether or not the State's violation of Rule 31 merits such a severe sanction as a reversal of the district court's ruling.

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