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MESCHKE, Justice, concurring.
It is acknowledged that “it may be unclear where Boyko’s injuries occurred.” It escapes me why the employee or his counsel is in a better position to clarify the uncertain locations of injuries than the Bureau, which has ample investigatory powers, NDCC § 65-02-11, as well as rulemak-ing powers, § 65-02-08. The Bureau is charged with providing “sure and certain” relief. NDCC § 65-01-01. Ordinarily, it could be accomplished by a simple report from the employer about the place of employment, by county, at the time of the claimed injury.
This result is reminiscent of the restrictive and inflexible common law rules before development of equity jurisprudence. See 27 Am.Jur.2d, Equity, § 2. It suggests a need for a more thoughtful judicial approach.
I wonder if there is truly a lack of jurisdiction in the usual sense of absence of authority. It seems to me that it is more a failure of will, or absence of appropriate action by the authorized body, the judicial system. It is, after all, a simple determination of which district judge will consider the matter, an assignment this court often makes otherwise. In part, NDCC § 27-02-05.1 says:
*642 “The supreme court shall provide to the extent it deems necessary or desirable, rules for:U
“4. The transfer of any matter to any proper court when the jurisdiction of any court has been improvidently invoked.”
Nothing in the legislative history of this statute suggests that it does not apply to appeals from administrative agencies.
Moreover, the fact that this is one of few subjects on which this court has not issued a rule should not foreclose exercise of the power in individual cases. See Lang v. Glaser, 359 N.W.2d 884 (N.D.1985). Indeed, a grant of legislative power is hardly necessary under our unified court system. North Dakota Constitution, Article VI, Section 3, says:
“The supreme court shall have authority to promulgate rules of procedure, including appellate procedure, to be followed by all the courts of this state; ...”
But, since we were not supplied with this argument on this appeal, I understand the reluctance of this court to turn to such an alternative. Recognizing the force of tradition behind today’s decision, I reluctantly concur. The occasion is sure to come to re-examine this holding, as the sad parade of similar past decisions bears out.
Document Info
Docket Number: 870047CV
Citation Numbers: 409 N.W.2d 638, 1987 N.D. LEXIS 379
Judges: Vande Walle, Meschke, Erickstad, Levine, Gierke
Filed Date: 7/28/1987
Precedential Status: Precedential
Modified Date: 11/11/2024