Traynor v. Leclerc

• Decision Date: 01 April 1997
• Docket Number: Nos. 960373,960377,s. 960373
• Parties: J. Patrick TRAYNOR, in his official capacity as Executive Director of the North Dakota Workers Compensation Bureau, and the State of North Dakota acting through the North Dakota Workers Compensation Bureau, Petitioners, v. Honorable Lawrence A. LECLERC, Presiding Judge of the District Court, East Central Judicial District; Arthur Ash and Donald Simenson, individually and on behalf of all others similarly situated, Respondents. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Petitioner, v. Honorable Lawrence A. LECLERC, Presiding District Judge of the East Central Judicial District, County of Cass, State of North Dakota, Respondent. Civil
• Court: North Dakota Supreme Court

Page 644

561 N.W.2d 644

1997 ND 47

J. Patrick TRAYNOR, in his official capacity as Executive

Director of the North Dakota Workers Compensation Bureau,

and the State of North Dakota acting through the North

Dakota Workers Compensation Bureau, Petitioners, v. Honorable Lawrence A. LECLERC, Presiding Judge of the

District Court, East Central Judicial District; Arthur Ash

and Donald Simenson, individually and on behalf of all

others similarly situated, Respondents.

NORTH DAKOTA WORKERS COMPENSATION BUREAU, Petitioner, v. Honorable Lawrence A. LECLERC, Presiding District Judge of

the East Central Judicial District, County of

Cass, State of North Dakota, Respondent.

Civil Nos. 960373, 960377.

Supreme Court of North Dakota.

April 1, 1997.

Douglas William Nesheim (argued), Fargo, for respondent Honorable Lawrence A. Leclerc, and Dean J. Haas (argued), of Dietz, Little & Haas, Bismarck, for respondent Arthur Ash, et al.

Brent J. Edison (argued), Special Assistant Attorney General, Bismarck, and Tracy Vigness Kolb (appearance), Special Assistant Attorney General, Bismarck, and Jacqueline S. Anderson (submitted on briefs), Special Assistant Attorney General, Fargo, for petitioner State of North Dakota.

MESCHKE, Justice.

¶1 In these two cases, J. Patrick Traynor, in his official capacity as Executive Director of the Workers Compensation Bureau, and the State [the Bureau], petitioned for supervisory writs directing the Honorable Lawrence A. Leclerc, Presiding Judge of the East Central Judicial District, to vacate orders denying their demands for change of judge and to grant their demands. We grant the petitions.

¶2 The Bureau paid disability benefits to Arthur Ash and Donald Simenson, who were injured in 1988. The Bureau terminated their disability benefits when Ash and Simenson became sixty-five years old. Ash and Simenson, individually and on behalf of all other injured workers similarly situated, sued for continued disability benefits, a declaratory judgment that NDCC 65-05-09.3 ¹ is unconstitutional, and an injunction against enforcement of NDCC 65-05-09.3. The case was assigned to the Honorable Frank L. Racek, District Judge. The Bureau's attorney filed a demand for change of judge under NDCC 29-15-21. ² Judge Leclerc denied the demand for change of judge. Judge Leclerc found NDCC 29-15-21 ambiguous:

The statute is ambiguous in that it states that any party to a civil or criminal action may file a demand, but subsection (a) seems to limit the parties who may file a demand by requiring that the demand be signed by "the party, if an individual," or by an officer or manager of a "corporation, limited liability company, or association[.]" It does not provide for the signature of an official of a state agency.

Judge Leclerc concluded "the Bureau's demand for change of judge is an improper encroachment on powers of the judiciary and an attempt to influence assignment decisions of the presiding judge of the East Central Judicial District."

¶3 Joyce Lewis appealed a Bureau decision to the district court. The case was assigned to the Honorable Frank L. Racek, District Judge. The Bureau's attorney filed a demand for a change of judge under NDCC 29-15-21. Judge Leclerc denied the demand for the reasons stated in the Ash case.

¶4 The Bureau petitioned this court for supervisory writs directing Judge Leclerc to vacate the orders denying the demands for change of judge and to grant the demands. The Bureau contends it is a qualified party under NDCC 29-15-21 and the statute does not impermissibly encroach upon the judiciary's powers.

¶5 Judge Leclerc urges us to decline to exercise our supervisory authority in these cases. Judge Leclerc contends NDCC 29-15-21 is unconstitutional on its face because it "requires no allegation of unfairness or other constitutional reason for the demand against a particular judge." Judge Leclerc also contends NDCC 29-15-21 is unconstitutional, as applied, if it is construed to allow the Bureau to remove a constitutionally elected judge from a case when the Bureau is a party.

¶6 This court's authority to issue supervisory writs derives from N.D. Const., Art. VI, § 2:

The supreme court shall be the highest court of the state. It shall have appellate jurisdiction, and shall also have original jurisdiction with authority to issue, hear, and determine such original and remedial writs as may be necessary to properly exercise its jurisdiction.

(in part); Trinity Med. Ctr., Inc. v. Holum, 544 N.W.2d 148, 150 (N.D.1996). See also NDCC 27-02-04: "The supreme court ... in its superintending control over inferior courts, [ ] may issue such original and remedial writs as are necessary to the proper exercise of such jurisdiction." Our power to issue supervisory writs is discretionary, and we use our superintending control over inferior courts "only to rectify errors and prevent injustice in extraordinary cases where no adequate alternative remedy exists." Holum 544 N.W.2d at 151. Although reviewable on appeal from a final judgment, orders denying demands for change of judge are not appealable. In re Estate of Ketterling, 515 N.W.2d 158, 161 (N.D.1994). The Bureau has no alternative remedies to supervisory writs. We conclude these cases are appropriate for exercise of our supervisory jurisdiction.

¶7 N.D. Const., Art. VI, § 3, authorizes this court to promulgate rules on disqualifying trial court judges:

The supreme court shall have authority to promulgate rules of procedure, including appellate procedure, to be followed by all the courts of this state.

"In NDCC 27-02-08 and 27-02-09, the Legislature has codified the superior power of the supreme court in promulgating rules." City of Fargo v. Ruether, 490 N.W.2d 481, 483 (N.D.1992). However, as State v. Vetsch, 368 N.W.2d 547, 552 (N.D.1985) (quoting State v. Seidel, 142 Ariz. 587, 691 P.2d 678, 682 (1984)), explained, "[t]hat we possess the rule-making power does not imply that we will never recognize a statutory rule. We will recognize 'statutory arrangements which seem reasonable and workable' and which supplement the rules we have promulgated."

¶8 Our state constitution's creation of three branches of government apportions the different classes of power, implicitly excluding each branch of state government from overriding the functions of the other branches. State v. Hanson, 558 N.W.2d 611 n. 1 (N.D.1996). However, "[w]e have recognized that there is an 'interplay between statutory procedures and rules promulgated by this court.' " Id. at 613, (quoting Ruether, 490 N.W.2d at 483). While this court has "final authority over procedural rules," State v. Knudson, 499 N.W.2d 872, 874 (N.D.1993), "statutorily enacted rules of procedure are in effect until superseded or amended by our court," Gegelman v. Reiersgaard, 273 N.W.2d 703, 706 (N.D.1979). See also NDCC 27-02-09. Under N.D. Const., Art. VI, § 3, "a procedural rule adopted by this court must prevail in a conflict with a statutory procedural rule." Hanson, 558 N.W.2d at 615. Compare N.D. Const., Art. VI, § 12, 12.1 ("The legislative assembly may provide for the retirement, discipline and removal of judges of the supreme court and district court.").

Still, when reviewing a procedural statute and a rule for conflict, we prefer to harmonize them when possible. Murdoff v. Murdoff, 517 N.W.2d 402, 403 (N.D.1994). In reviewing the constitutionality of a statute, we will uphold the statute "unless its challenger has demonstrated the constitutional infirmity." Best Products Co., Inc. v. Spaeth, 461 N.W.2d 91, 96 (N.D.1990). State v. Ertelt, 548 N.W.2d 775, 776 (N.D.1996), explains: "A statute is presumptively correct and valid, enjoying a conclusive presumption of constitutionality unless clearly shown to contravene the state or federal constitution."

¶9 For a long time, the Legislature has allowed parties to judicial proceedings to have a change of judge upon filing an affidavit asserting bias or prejudice on the part of the judge. See Section 285 of the Code of Criminal Procedure, Revised Codes of the Territory of Dakota (1877), and Section 5454a of the Revised Codes of the State of North Dakota (1899), allowing either party a change of judge in civil actions.

¶10 Construing § 7644, C.L.1913 (1925 Supp.), this court recognized that the "obvious purpose" of change-of-judge statutes "was to make provisions so that a party having a cause for trial at any term of a district court might obtain a change of judges as a matter of right where he had reason to believe that he could not have a fair and impartial trial before such judge." State v. Garrison, 68 N.D. 71, 276 N.W. 693, 694 (1937). See also Orcutt v. Conrad, 10 N.D. 431, 87 N.W. 982, 983 (1901) (the "chief benefit" of the change-of-judge statute is to allow a party to present "her cause to an unprejudiced tribunal").

¶11 The change-of-judge statutes were ultimately codified in NDCC 28-13-01 and NDCC 29-15-13 for civil and criminal actions, respectively. In 1971, though, the Legislature repealed those sections and enacted a new procedure for demanding a change of judge in both civil and criminal actions. 1971 N.D. Laws, ch. 316. That legislation, codified at NDCC 29-15-21, eliminated the former requirement of an affidavit of prejudice to get a change of judge, and adopted the present procedure that allows a party to get a change of judge by filing a written demand for change of judge, which must state that it is filed in good faith and not for the purpose of delay. State v. Zueger, 459 N.W.2d 235, 236 (N.D.1990), explains, under NDCC 29-15-21, "a party is entitled to a peremptory challenge of an assigned judge, without alleging bias or prejudice."

¶12 One district judge testifying in favor of Senate Bill 2383 (1971 N.D. Laws, ch. 316), described it as a "housecleaning law." He testified that a judge may have a conflict of interest and that "[s]ome clients do not feel they want to say it is due to prejudice." He added:

This bill is...