*1 581 Simonson, Valley City, Mikal for third- appellee.
party defendant and SCHNEIDER, Harold
County, Petitioner, PEDERSON, Justice. v. EWING, Judge D. Thomas of the Stark Appellate
Rule North Dakota Rules of Procedure, Court with Increased authorizes to take Jurisdiction, Respondent. “any appropriate against any per- action” failing perform required by son an act Civ. No. 10075. Sigurdson ap- the rules. filed a notice Supreme Court of North Dakota. peal May the district court on 1981 has steps taken no further than to Oct. inquire required deposit as to the cost and transcript. for a (N.D.
In
Vogan,
State v.
1976), we said: 3(a), N.D.R.App.P., provides
“Rule that appellant failure of an to take
steps beyond filing of a notice grounds as such action appropriate,
court deems and may include appeal.”
dismissal of the transcript
An as to cost is inquiry exempt
not Sigurdson sufficient
the sanction of dismissal. Counsel advises there will be no resistance to the mo good
tion to dismiss. Unless cause is shown rules, comply
for failure to
appeal will be dismissed. Anderson An
derson, (N.D.1977). 146 N.W.2d
appeal is dismissed costs in the amount appellee, are $100 awarded Lahr &
Lahr, Inc., appellant, Sigurdson.
ERICKSTAD, J., C. and VANDE SAND, JJ.,
WALLE and concur.
PAULSON, J., disqualified. *2 County
of the Stark Court of Increased Jurisdiction, spoken had with Sheriff and various Schneider members of the County attorney’s Stark staff con- cerning conditions of the the overcrowded jail. overcrowding The also County Stark gave problems segregating pre-tri- rise to post-conviction al detainees. detainees jail County facility consists of Stark two sections: the “women’s side” with two cells, and the “men’s side” with seven cells day and a room. Each cell has individual population When toilet facilities. seven, occupant men’s side exceeds open his cell to access cell one must leave assigned inmate who is not a cell. Register Jail shows that State population jail of the varied from a low of 6, 1980, high eigh- six on November to a teen on November 1980. Mattresses day were laid out on the steel floor of the persons room to accommodate those not as- signed to one of the seven cells. of these After was advised conditions, order, continuing entered sponte, in an effort to correct the over- crowding segregation problems and at the jail. required County The order transport sufficient numbers of sheriff to Greenwood, Greenwood, Greenwood & post-conviction male detainees to the Bur- Dickinson, petitioner; argued by Mark jail keep population leigh County to Greenwood, L. Dickinson. -County jail at a maximum of Stark pro Ewing, respondent Thomas D. se. original captioned seven.1 order was plaintiff with of North Dakota as the State PAULSON, Justice. Prisoners, al., County et as de- and Stark Petitioner, Schneider, Harold Sheriff of open fendants. This order was not made in County, original jurisdic- Stark invoked the upon any action. court or the record in tion of the North Dakota 23, 1981, July Judge Ewing was in- On for an alternative to complying formed that the sheriff was not stay of North State with of December al., et Dakota v. Prisoners Register indicated 1980. The State Jail of North Dakota v. Harold State populations high as sixteen inmates as as Schneider, County. We Sheriff of Stark Judge Ewing there- April late as 1981. grant the writ. issued, fore an order to show petition following This arises from 27, 1981, July directing cause dated Sheriff facts: August before him on 3, 4,1981, prior On several occasions to December to show cause he should not 1980, respondent, Ewing, Judge contempt. captioned was Thomas D. held in This order transport prisoners Burleigh County jail Burleigh already if and Stark Counties had necessary. whereby contract effect could plaintiff of North Dakota as State of North Dakota. The Schneider, and Harold Sheriff of Stark order named as defendants Stark County, Subsequently, as defendant. the Prisoners, al., et and the order to show August hearing changed date for the cause named as defendant Harold Schneid- 10, 1981, Sep- was further continued er, County. Neither the tember after Sheriff Schneider nor the attor- response entered his to the order to show ney general nor his assistants have institut- *3 cause, alleged which the County Stark against ed an action Sheriff Schneider nor jur- Court Increased Jurisdiction had no against general category the Coun- —Stark parties subject isdiction over the or the Prisoners, ty et al. matter by because the order was not served 516, In Stepp, 45 N.D. 178 N.W. a party. disinterested (1920), Supreme the stated that Court 4, 1981, September On Sheriff Schneider assistants, attorney general, the his and the application filed an with the North Dakota attorneys only public prose- are the Supreme requesting Court that a writ of cutors in all cases the where State is a prohibition against be issued Judge Ewing party to the action. restraining him from further Supreme this matter. The North Dakota argument, Judge Ewing At oral stated Court, 4, 1981, September on issued its or- problem that he discussed the with the Judge Ewing der to to refrain from further attorney County, for Stark as well as proceedings in this matter until further or- County county board of Stark by der the Court North Dakota. county commissioners. The board of com- This court Judge Ewing further ordered apparently unresponsive missioners was 10, 1981, September before it on attorney the state’s took no action in this show cause it should not issue a writ matter for apparent reasons an conflict permanently enjoining proceedings in this of interest.2 matter. Assuming attorney that the state’s would issues for consideration the court have been able to initiate an are as follows: matter, Judge Ewing action should 1. County Whether the Court of brought have the the attention of matter to jurisdiction Increased Jurisdiction has action, pursuant the district court for over subject matter. 11-16-06, N.D.C.C., allows the dis- 2. Whether the attorney general request trict court to jurisdiction Increased Jurisdiction has or an assistant to take petitioner, over the Sheriff Schneider. charge appoint attorney to take or to Should writ of be issued attorney charge when the state’s refuses or by this court: to take action. stat- unable We first discuss the issue of whether however, argument, ed oral that he did at or not Court of Increased help from district court or not seek jurisdiction Jurisdiction had over the sub but, rather, attorney general, from the ini- ject matter of this action. sponte. actions tiated these Although Judge Ewing’s intentions were Therefore, continuing order and commendable, procedurally his actions were were not initiated order to show cause misdirected from the outset. He initiated result, proper public prosecutors. As a 3, continuing both order of December 1980, properly those actions were not before the July and the order to show cause of in the name of the court. attorney being 2. The state’s also because of a called as a wrote to the general requesting attorney general’s response intervention because he was witness. The necessity however, maintaining request, concerned about is unknown to either of working relationship close with both sides and to this action and this court. legal supervision, ees who were not under We conclude that no actions have his properly brought by pursuant 46(i), been the State of to Rule N.D.R.Crim.P. To North Dakota permit such an extension of the Rule would prisoners County. or the sheriff of Stark merely judicial serve to insert interference existence, being There no actions jails into the administration of without re- Court of Increased Juris- gard statutory to our scheme for admin- subject jurisdiction diction has no over the supervision provided by Chap- istration and person petitioner. matter nor of the 12-44.1, ter N.D.C.C. 3, order of December 12-44, N.D.C.C., Chapter repealed by 1980, pursuant to be issued cannot be said S.L.1979, Chapter July 29 effective particular legal involving to any de- 12-44.1, replaced by Chapter and was
fendants who were arrested to a judges N.D.C.C. Under 12-44 the Ewing, signed by Judge warrant or who prescribe of the district courts were to rules were him or tried before otherwise detained jails. rule-making authority, how- This him. The order was a blan- ever, responsibility now of the attor- *4 ket covering all of the Stark 12-44.1-24, ney general under N.D.C.C. § prisoners attempt distinguish with no apparent change is The intent behind they whether were detained judges to allow district court to act as court, Judge Ewing’s actions or in legislative courts and not as or administra- authority Judge any other court. What they involving tive bodies when hear cases Ewing particular had over detainees in the jail problems. County jail clearly by was exceeded 12-44.1-13, N.D.C.C., provides Section is, the blanket The order. blanket order supervised by that inmates are to be trained effect, jail reform effectuate jail rights staffs. Inmates’ are to be en- through sponte a sua court order. governing body jail, of sured each argument, Judge Ewing In his oral fo- 14, N.D.C.C., in this case the § 12-44.1— 46(i) basically cused on Rule of the North county commission- board of Dakota Rules of Criminal Procedure as the particular importance ers. in the Of jurisdiction. Rule basis for his The states: 44.1—14(1) (2), present and N.D. case § 12— “(.i) Supervision pending of detention C.C., provide attorney gener- which that the ordering trial. The court defendants or responsible prescribing al is for rules and supervi- exercise witnesses detained shall construction, maintenance, regulations for of sion over the detention those defend- jails, operation and of as well as for the trial, pending for ants and witnesses care and treatment of inmates. He is also purpose eliminating unnecessary of all responsible appointing jail inspector for detention.” inspect jail least once a who each at 46(i), Explanatory The Note to Rule N.D.R. year regula- to determine if the rules and Crim.P., governing Custody, Release from complied tions have been with. 12-44.1— § states in the Rules Manual that: Criminal 24(4), jail inspector is re- N.D.C.C. 12-44.1-25, N.D.C.C., (i) quired provides that where the to make
“Subdivision reports court is unable to release a defendant or written annual to be submitted to provisions witness under attorney general governing of the and Rule, responsible it jail. specify shall be to insure body report of the is to a swift disposition of the case with a noncompliance deficiencies or with mini- preconviction minimum detention.” limits with- mum standards and to set time they in which are to be remedied. specific gives This Rule the court the re- sponsibility disposition of a swift of the or of the Corrective action enforcement action the defendant. provided for in 12-44.- inspection report is 1-27, not, however, 2 of that section
We will extend the Rule N.D.C.C. Subsection applicable to facts of this beyond scope. portion its intended The blanket or- is the case, governing body by Judge Ewing der issued included detain- states that if the and action, jail of a fails to take corrective As already stated, we have Judge Ew- petition is authorized to ing’s intentions and concern for the detain- judicial the district court of the district ees in County jail certainly are jail within which the is located to order the Nevertheless, laudable. pro- our statutes initiation of corrective or the closure vide for system jail supervision and facility. administration requires changes which and reforms to responsibility be the of the at- When realized that the con- torney general with through enforcement County jail ditions in the were in the district courts. The Code seeks a more improvement, following need of he had the system jail uniform statewide adminis- pursue. courses of action to tration being promulgated rules option Judge Ewing The first could have office, from one central that of the exercised would have been a conference general. To allow the courts to insert their attorney, of coun- board judgment operation into the and adminis- commissioners, ty sheriff, and the in order jails be, effect, tration of would to revert to work out a solution. part A system jail back to old supervision by solution could have been to take further Chapter district courts under 12— advantage of the contract between Stark N.D.C.C., chapter replaced by Burleigh County which allows 44.1, apparent N.D.C.C. 12— jail to use the facilities in change intent of the was to remove the Burleigh County when necessary. The rec- judiciary responsibility rule- arguments ord and oral indicate that there making supervision. were some informal discussions to this ef- fect, indicating but not of a nature a firm The next issue for our determination is *5 resolve all of seriously the to whether or not we a writ of should issue problem address the with the intent to fi- VI, prohibition. Article 2 of the North § nally solve it. Constitution, states, part, Dakota in supreme the court A second course of action would have appellate jurisdiction, “shall have been for to have made a writ- original jurisdiction shall also have with ten request to the to exer- issue, hear, authority to and determine rulemaking cise his authority or to cause an original may such and remedial writs as inspection made, to have been to necessary properly juris- 12-44.1-25, N.D.C.C., to exercise its 12—44.1—24and § respectively. If the diction.” attorney general were matter, to refuse to act on this an ex rela- 28-31-07, N.D.C.C., provides to Section brought tione action judge on behalf original the North Dakota of people of appro- the State would be jurisdiction to direct an alternative writ to priate. Agnew See State ex rel. v. Schneid- be issued the clerk. er, 253 (N.D.1977). N.W.2d 184 32-35, N.D.C.C., governs A less desirable alternative would be to application for and issuance of writs of seek the attorney advice of the state’s prohibitions. The writ is defined in 32- explore of an 35-01, N.D.C.C., part, in as: brought by attorney counterpart “the of the writ of manda- against the sheriff as chief administrator of proceedings mus. It arrests the of against county or the board of tribunal, board, corporation, person, or jail’s governing commissioners as the body. when such are without or in If the were to refuse to tribunal, jurisdiction of such excess of the perform so, or was unable to do resort could board, corporation, person”. or be had to the by way district court of 16-06, N.D.C.C., of prohibition to seek intervention The writ of is not a writ
§ 11— by the attorney general appointed right, only or an but is available when an inferior attorney. court, body, is act with- or tribunal about to
586 prohibition require writ of rather than to jurisdiction. of Sunbehm
out or in excess 555, Lesmeister, Gas, appeal. 558 308 N.W.2d Inc. v. (N.D.1981). case, instant is In the Sheriff Schneider O’Keefe, 76 283 N.W.2d v. In Davis subject order to show cause of an prohibition, (N.D.1979), denying a writ of in contempt in for his he should not be held stated: court Judge Ewing’s con- comply failure to with in our court authority
“The vested December tinuing order dated discretionary a original writs is issue decided was void ab initio. which we have grant writ will be power, original and an The sheriff made no only private party request ed at the prohi- continuing order but seeks a writ O’Connell, v. exceptional cases. State enjoin contempt proceeding, bition to (N.D.1967). A writ 151 N.W.2d court, initiated to Judge Ewing’s which was sparingly and is to be used prohibition continuing order. Because enforce the is an inade only in cases where there Jurisdic- County Court of Increased in those cases quate remedy by appeal, or jurisdiction to issue the tion was without justify equitable principles where other as well as the order order NDCC; 32-35-01, its use. Section cause, Judge Ewing’s show and because (N.D. Hanson, 252 N.W.2d proceed- and interest involvement 1977).” prohibition is grant of a writ of ings, our require appropriate. We will not case, supra, in- The Davis v. O’Keefe contempt subjected to a to be writ sought an Indian who volved comply with a void hearing for failure to court prohibition to restrain the district subse- require him to of- prosecuting him for a criminal probable con- quently appeal the order and fense, arrest within the alleging that his tempt determination. a reservation was external boundaries of county officials did not unlawful because opinion, the stated in this For reasons comply with a tribal extradition ordinance. prohibition granted. Because held that was not This court great is one of matter under consideration defendant had not appropriate because the concern, no costs are assessed public irreparably injured shown that would be party. The clerk of this either prosecution or that as a result of continued opinion requested copy to serve a *6 ultimately he could not avail himself of of this State at upon Attorney General of a conviction. right appeal in the event opportunity. the earliest case, however, is distin present O’Keefe, supra. guishable from Davis v. PEDERSON, ERICKSTAD, J., and C. present in the case primary difference SAND, JJ., concur. VANDE WALLE proceed these initiated that Justice, WALLE, concurring VANDE ings, sponte, in the name albeit specially. particular has of North Dakota. He for the opinion written personal agree in I with the knowledge of the facts and spe- I write this judge’s by Justice Paulson. proceedings. volvement that it is merely to note cial concurrence interest in this cause indicates that Sheriff only af- arose that this matter provided with an unfortunate Schneider would not be requiring of the order objective ter issuance appropriately determination should not to show cause contempt. in Davis v. Schneider The defendant issues that O’Keefe, hand, contempt. The same faced his be held in supra, on the other by Sheriff presented to this court charges in a disinterested forum were application for a in the acquittal of an based on Judge time present were at the that the differences be facts. We believe order, O’Keefe, his Ewing su issued tween this case and Davis v. 3,1980. I that believe grant on December pra, appropriate it for us to make the most not time to raise that situation which exists issues. in the County jail will be corrected parties. action among Rather, it notes, As Justice Paulson the sheriff cooperation would seem that of those made no persons concerned with conditions exist- order. Had some to contest the va- ing at the to rectify essential those lidity time, of the order taken at been conditions. options majority opin- discussed in the might ion have rapidly been instituted more the apparently condition serious County jail might
exists in the Stark readily
more rectified. It is not wise to
simply ignore an order of the court which invalid, believe to be but it does