North Dakota: hearing today on giving another 4 years of life to the state’s 27 year old “Temporary” Court of Appeals

When North Dakota rewrote its judiciary article in 1976 (Amendment 3) and then heavily amended it again in 1980 (Amendment 5) it declined to create an intermediate appellate court (typically called a Court of Appeals in other states), instead leaving the option for the legislature to create “such other courts as may be provided by law.”

One such court was the Temporary Court of Appeals, established in 1987 with a sunset date of 1990.  It is notable that the court is truly “temporary”; it is only constituted and judges named to it when the number of appeals disposed in the state’s Supreme Court exceeds 250 and the Chief Justice certifies the Temporary Court of Appeals is needed. Judges are named to temporary panels of the court “for a time certain, not to exceed one year from the date of assignment, or specifically for one or more cases on the docket of the supreme court.” Once the cases are completed or the time ends, the panel disbands.

As such, there have been years when the court simply did not operate. Nevertheless, the legislature has continued to reauthorize the court several times usually for four years at a stretch (the exception was in 1993 when the legislature only authorized a 2-year extension). This year’s extension (to 2020) takes the form on HB 1076 which was scheduled for a hearing today before the House Judiciary Committee.