In the Interest of T.F. v. Director, Traill County Social Services ( 2004 )

SANDSTROM, Justice,

concurring specially.

[¶ 26] Concluding the clearly erroneous standard of review should apply in this case because application of the amended Rule 52(a), N.D.R.Civ.P., would not work an injustice, I nevertheless concur in the result reached by the majority, because the result would be the same under a clearly erroneous standard of review.

[¶ 27] Effective March 1, 2004, an amended Rule 52(a), N.D.R.Civ.P., changed the standard of review in juvenile matters from “similar to the former trial de novo” to “clearly erroneous.” Although in some circumstances amended or new procedural rules might not apply to pending actions, I disagree with the majority’s conclusion that the circumstances in this case warrant our applying the standard of review in effect'prior to the March 1, 2004, amendment.

[¶ 28] Our order adopting the rule change ordered it effective March 1, 2004. As the Court said in Craig v. Herzman, 9 N.D. 140, 81 N.W. 288, 288 (1899), Syllabus by the Court:

2. Such provision, as it relates to procedure only, may be applied in any case tried after its enactment, although the cause of action arose before the enactment. The rule requiring statutes to be given prospective operation only does not apply to statutes relating to procedure.

In In re Foster’s Estate, 89 N.W.2d 112, 116 (N.D.1958), this Court said:

When an amendment to a procedural law becomes effective during the pen- ■ dency of a suit the validity of proceedings had is determined under the old provisions but future procedure is governed by the amendment unless a contrary legislative intent appears. M & M Working Company v. Chambers, Or., 217 Or. 161, 317 P.2d 920; Marks v. Crow, 14 Or. 382, 13 P. 55.

“Pending cases are only affected by general words as to future proceedings from the point reached when the new law becpmes operative.” Sutherland Statutory Construction,. 3rd Ed,, Sec. 2212.

[¶ 29] When North Dakota adopted the federal rules of civil procedure in 1957, it did not adopt the clearly erroneous standard articulated in those rules. It was not until 1971 that the trial de novo was repealed and North Dakota amended N.D.R.Civ.P. 52(a) to provide for the clearly erroneous standard for reviewing a trial court’s findings of fact. At the time of the amendment, N.D.R.Civ.P. 86(a) was in effect, which provides:

[The rules of civil procedure] will take effect on July 1, 1957. They govern all proceedings and actions brought after they take effect, and also all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when the rules take effect would not be feasible, or would work injustice, in which event the procedure existing at the time the action was brought applies.

N.D.R.Civ.P. 86(a) (emphasis added). This Court did not discuss Rule 86(a), however, when determining whether to apply the amended Rule 52(a), N.D.R.Civ.P., to pending proceedings.

[¶ 30] When appeals were taken after the effective date of the rule, this Court applied the new rule. See Gajewski v. Bratcher, 221 N.W.2d 614, 621 (N.D.1974); Brusegaard v. Schroeder, 201 N.W.2d 899, 903-04 (N.D.1972) (not empowered to review matter de novo when repeal was effective prior to time appeal taken). When judgments in an action were entered after the effective date of the rule, this Court also applied the new rule. See McNaught v. MacArthur, 209 N.W.2d 639, 640 (N.D.1973). The new rule has even been applied when the trial began before the rule’s effective date. See Trengen v. Mongeon, 200 N.W.2d 50 (N.D.1972). In Trengen, this Court explained that the right to appeal does not attach at the time of trial, but after the judgment is entered. Id. at 52-53.

[¶ 31] When the notice of appeal was served and filed before the date of repeal of the trial de novo, this Court held that the appellant was entitled to trial de novo on appeal from the judgment. See Automobile Club Ins. Co. v. Hoffert, 195 N.W.2d 542, 545 (N.D.1972); Northern Plumbing Supply, Inc. v. Gates, 196 N.W.2d 70, 71 (N.D.1972); East Grand Forks Federal Savings and Loan Association v. Mueller, 198 N.W.2d 124, 126 (N.D.1972) (citing Hoffert, 195 N.W.2d at 545).

[¶ 32] Although these cases seem to suggest a trial de novo should be held if at the time the appeal was filed the appellant was entitled to a trial de novo, none of these cases discuss N.D.R.Civ.P. 86 or its application. It was not until the decision in City of Wahpeton v. Drake-Henne, Inc., 215 N.W.2d 897, 902 (N.D.1973), that this Court recognized that Rule 86(a) permitted the application of amended Rule 52(a) “retroactively.” In City of Wahpeton the appeal was taken in December 1968, prior to repeal of the trial de novo. The Court stated that although Rule 86(a) permitted the application of amended Rule 52(a) “retroactively,” it would not apply it to this case because it had not applied it in the past. Id.

[¶ 33] This Court again interpreted Rule 86 in Holloway v. Blue Cross of North Dakota, 294 N.W.2d 902 (N.D.1980). This Court applied a rule of procedure that became effective four days after a class action was filed, finding the rule adequately protected the interests of all the parties. Id. at 906. This Court recognized, “This practice should be maintained as the existing rules are amended or new rules are added because it establishes a uniform pattern which civil actions can follow but still permits the court to apply prior rules in pending cases where fairness and justice so warrant.” Id.

[¶ 34] This Court, in Paxton v. Wiebe, 1998 ND 169, ¶ 22, 584 N.W.2d 72, again recognized that Rule 86 applies when determining whether new rules of procedure apply to pending cases. In Paxton, this Court concluded it would work an injustice to apply new rules of procedure that would make a post-judgment motion untimely when the motion would have been timely under the procedural rules that applied when the motion was filed. Id. at ¶ 23.² In Paxton, this Court stressed that the amendments to rules should be given “retroactive” application to the maximum extent possible. Id. at ¶ 22 (emphasis added). This Court also noted “that an appellate court will apply amended rules in effect at the time the appeal is decided” unless it would work a manifest injustice. Id. (emphasis added); see also Parker v. McGaha, 294 Ala. 702, 321 So.2d 182, 184 (1975) (application of the former rules of procedure should be the exception rather than the rule).

[¶ 35] The 1971 order to amend Rule 52(a) provided: “the Amendments to the Rules of Civil Procedure so adopted and promulgated shall take effect and be in force from and after August 1, 1971.” Supreme Court Order of Adoption of Amendments to the North Dakota Rules of Civil Procedure, June 28, 1971 (emphasis added). If this was the reason this Court did not apply amended Rule 52(a) “retroactively,” this reason was not articulated in any of the opinions. The 2004 amendment does not contain similar language. Legislative history says nothing to indicate how the transition was to occur, nor are there any references in the legislative history to a statute affecting the transition. There are no Joint Procedure Committee comments about the 1971 amendment, and there was no petition to the Supreme Court to amend Rule 52(a).

[¶ 36] Although the order to amend Rule 52(a) stated the effective date would be from and after August 1, 1971, this Court acknowledged in 1973 that it could apply Rule 52(a) “retroactively.” See City of Wahpeton v. Drake-Henne, Inc., 215 N.W.2d 897, 902 (N.D.1973). In 1980, this Court did apply a new rule of procedure “retroactively.” Holloway v. Blue Cross of North Dakota, 294 N.W.2d 902, 906 (N.D.1980). In 1998, this Court stressed that new rules must be applied in pending litigation unless to do so would work an injustice. Paxton v. Wiebe, 1998 ND 169, ¶ 22, 584 N.W.2d 72.

[¶ 37] The notice of appeal in this case was filed on August 11, 2003, prior to the effective date of the new procedural rule requiring a clearly erroneous review of juvenile matters on appeal. The appellant argues that because his trial date was pri- or to the effective date of the new rule, the old rule should apply. He asserts he should get a trial de novo. He argues that had he known the new rule applied, he probably would have asked for review in the district court and gotten a trial de novo review by a district judge. It is not at all clear that the appellant would have received a de novo review by a district judge prior to March 1, 2004. See Interest of A.B., 2003 ND 98, ¶¶ 5-10, 663 N.W.2d 625. He-argues it is not fair to apply the new rule in this case. He argues that the rules should apply to decisions made in the lower court after March 1, 2004, but not prior to March 1, because decisions had to be made with clients about whether to' request review. He argues that the' rules in effect at the time of the lower court’s decision should apply to that decision. This Court has recognized that the right to appeal does not attach at the time of trial but rather after the judgment is entered. Trengen v. Mongeon, 200 N.W.2d 50, 52-53 (N.D.1972). This Court has also recognized that rules in effect at the time an appeal is decided (not at the time the decision is made in the lower court) should apply unless it would work a manifest injustice. See Paxton, 1998 ND 169, ¶ 22, 584 N.W.2d 72.

[¶ 38] The appellant also argues that procedural rules that affect due process cannot be retroactively applied. He argues that at the time the decision was made, he had a right to a de novo review, and that by choosing to appeal with this Court and not asking for review in the district court, he gave up a right to de novo review that he did not know he would lose. In State v. Flohr, 301 N.W.2d 367, 370 (N.D.1980), this Court recognized that any rule of procedure can affect substantive rights and thus violate the ex post facto laws-and that the court can prevent such retroactive application:

In Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), the Supreme Court declared that “even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto.” The ban against laws ex post facto “was intended to secure substantial personal rights against arbitrary and oppressive legislation ... and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance.” [Emphasis added.] Dobbert, supra, 97 S.Ct. at 2298, quoting Beazell v. Ohio, 269 U.S. 167, 171, 46 S.Ct. 68, 69, 70 L.Ed. 216 (1925).

Any rule of procedure can have substantive consequences. Thus determining whether a procedural change violates the ex post facto clause is necessarily an ad hoc process of line drawing. Beazell, supra, 46 S.Ct. at 69. Certainly, Rule 12.1 is procedural. It is found in a compilation entitled “North Dakota Rules of Criminal Procedure.” Its purpose is to provide an orderly means by which evidence of alibi is adduced at trial. Further, we do not believe its modification represents an arbitrary and oppressive encroachment upon a defendant’s substantial personal rights. The exclusionary sanction is not new — it was not created by the amended rule. The change in the rule’s provision for penalty benefits defendant by ending the mandatory exclusion of alibi testimony. That the defendant must now initiate the discovery process is no basis for an ex post facto argument. Such a change contrasts with those appearing in cases like Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883), and Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898), where the prejudicial effects of the new laws were both new and beyond the control of the defendants. Here, Flohr’s failure to give notice, not the independent working of the rule, was the direct cause of the evidence being barred. We conclude that the amendment of Rule 12.1 is procedural in the sense that it will not ground a challenge based on the ex post facto clause.

[¶ 39] Although North Dakota has not yet addressed whether thére is a vested right in the type of appellate review received, other courts have addressed this question. In Perez v. Marshall, 946 F.Supp. 1521, 1530 (S.D.Cal.1996), the court found that no vested right existed in a statutory scheme that defined the scope of relief and that applying a law that changes the type of review does not divest a person of a vested constitutional right. The court found that only the standard of review had changed and that the court still reviewed the matter. Id. It also explained that the change in the standard of review affects only the decision-making process and not the rights of the parties. Id. In Fowler v. State of Texas, 991 S.W.2d 258, 261 (Tex.Crim.App.1999), the court found that although the right to appeal constitutes a vested and substantive right, the procedure for review is not a vested and substantive right. In United States v. Daychild, 357 F.3d 1082, 1106 (9th Cir.2004), the court found that reliance on a former standard of review when making the decision whether to appeal is not substantive enough to warrant protection under the Due Process Clause. When new rules effect only a remedy and not a vested right, they may be applied to pending litigation. See Gibson v. Miami Valley Milk Producers, Inc., 157 Ind.App. 218, 299 N.E.2d 631, 641 (1973).

[¶ 40] The majority opinion states that under the circumstances in this case, fairness and justice warrant that a de novo standard of review be applied. The opinion, at ¶ 8, states it would be unjust to apply the amended rule because the appellant “elected not to request a review by the district court[,] believing that this Court would conduct a de novo review of the referee’s decision.” The opinion does not cite to any cases holding that this type of situation would work an injustice, nor does the opinion explain what factors are considered in determining whether application of a new rule would be unjust.

[¶ 41] In Perez v. Marshall, 946 F.Supp. 1521, 1530-31 (S.D.Cal.1996), the court considered three factors in determining whether “retroactive” application of a rule changing the scope of review would result in a manifest injustice: 1) the nature and identity of the parties, 2) the nature of the rights affected, and 3) the nature of the impact of the change of law on those rights. Perez, 946 F.Supp. at 1530-31 (citing Bradley v. School Bd. of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974)). In applying the first factor, the court found it favored retrospective application because the case was between individuals and was not of great national concern. Id. at 1530. This case is similarly not of great national concern. In applying the second factor, the court noted that retrospective application is prohibited when it would deprive a person of an unconditional right. The court found that changing the standard of review does not infringe upon an unconditional right but simply changes the scope of the court’s review. Id. at 1530-31. In looking at factor three, the court found that a deferential standard of review did not impose new and unanticipated obligations on the appellant. Id. at 1531. The court found no manifest injustice. Id. Other factors to be considered when assessing whether a manifest injustice would occur if new rules are applied include the substance of the rule involved and the timing of plaintiffs actions, plaintiffs obvious gamesmanship or lack thereof, and plaintiffs reliance or lack of reliance on the rules as they existed at the time he made pertinent decisions in the case. Reitmeyer v. Schultz Equipment & Parts Co., 2001 WL 633679 *1 (Mich.Ct.App.).

[¶ 42] In this case, the appellant elected not to request a review by the district court, believing that this Court would conduct a de novo review of the referee’s decision. The appellant argues that had he known the rule would change, he would have sought review in the district court, hoping for a de novo review. He is essentially arguing that he was relying upon a de novo review in the appellate court when he decided not to seek review in the district court. I conclude this is not enough to work an injustice. See United States v. Daychild, 357 F.3d 1082, 1106 (9th Cir.2004) (reliance on a former standard of review when making the decision whether to appeal is not substantive enough to warrant protection under the Due Process Clause); see Gibson v. Miami Valley Milk Producers, Inc., 157 Ind.App. 218, 299 N.E.2d 631, 641 (1973) (when new rules affect only a remedy and not a vested right, they may be applied to pending litigation); Fowler v. State of Texas, 991 S.W.2d 258, 261 (Tex.Crim.App.1999) (the procedure for review is not a vested and substantive right); Perez v. Marshall, 946 F.Supp. 1521, 1530-31 (S.D.Cal.1996) (no manifest injustice, because changing the standard of review does not infringe upon an unconditional right but simply changes the scope of the court’s review, and because a deferential standard of review does not impose new and unanticipated obligations on the appellant). Although the appellant filed his appeal and the parties completed their briefing before March 1, 2004, believing that this Court would conduct a de novo review of the referee’s decision, this is not enough to warrant our applying the standard of review under N.D.R.Civ.P. 52(a) in effect prior to the March 1, 2004, amendment. See Fowler v. State of Texas, 991 S.W.2d 258, 262-63 (Tex.Crim.App.1999).

[¶ 43] Because amended Rule 52(a), N.D.R.Civ.P., is a procedural rule that does not affect any substantive rights of the appellant, and because application of the rule would not work an injustice, I conclude that a clearly erroneous standard of review should be applied in this case.

[¶ 44] CAROL RONNING KAPSNER, J., concurs.

2 . Although this Court in Paxton found it would work an injustice under the circumstances of that case to apply the new rules of procedure, two justices signed the main opinion, one concurred in the result, and two dissented.