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State v. Hanson, 558 N.W.2d 611 (N.D. 1996)
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Filed Dec. 20, 1996

IN THE SUPREME COURT

STATE OF NORTH DAKOTA
State of North Dakota, Plaintiff and Appellant
v.
Dale Clayton Hanson, Defendant and Appellee

Criminal No. 960103
Appeal from the District Court for Morton County, South Central Judicial District, the Honorable Burt L. Riskedahl, Judge.
AFFIRMED.
Opinion of the Court by Neumann, Justice.
Ladd Ronald Erickson (argued), Assistant State's Attorney, 210 2nd Avenue Northwest, Mandan, ND 58554, for
plaintiff and appellant.
Thomas M. Tuntland (argued), P.O. Box 1315, Mandan, ND 58554, for defendant and appellee. Robert P. Bennett

(appearance), Assistant Attorney General, Attorney General's Office, 600 East Boulevard Avenue, Bismarck, ND
58505-0040, filed amicus curiae brief.



State v. Hanson
Criminal No. 960103


Neumann, Justice.
The State has appealed a district court order declaring 29-01-32, N.D.C.C., unconstitutional and limiting discovery in its criminal prosecution of Dale Clayton Hanson. We affirm.
Hanson was charged with driving while under the influence of intoxicating liquor. Hanson's attorney requested discovery of 1) documents, tangible objects, and reports of examinations and tests, under Rule 16(a)(1)(C) and (D), N.D.R.Crim.P.; and 2) the names of prosecution witnesses and statements made by them, under Rule 16(f)(1), N.D.R.Crim.P. Upon compliance with Hanson's discovery request, the State requested discovery of the names and addresses of persons Hanson intended to call as witnesses, their statements or reports, the results of examinations, tests, experiments, or comparisons, and any real evidence he intended to offer at trial under Rule 16, N.D.R.Crim.P., and 29-01-32, N.D.C.C.
Hanson moved for an order limiting his duty to disclose information to that required by Rule 16, N.D.R.Crim.P., and declaring that he had no duty to disclose information sought by the State under 29-01-32, N.D.C.C. The trial court ruled that 29-01-32, N.D.C.C., is unconstitutional under the separation of powers doctrine(1) and under

[558 N.W.2d 612]
Art. VI, 3, N.D. Const. The court's order required Hanson to "supply the materials requested by the State pursuant to the provisions of Rule 16." The order provided that Hanson "need not supply the materials requested under the provisions of 29-01-32, N.D.C.C. unless those materials are otherwise discoverable under the provisions of Rule 16 or some other rule." The State appealed.
Ordinarily, there is no right of appeal unless provided by statute. City of Bismarck v. Materi, 177 N.W.2d 530, 535
(N.D. 1970). No statute authorizes the State's appeal in this case. Under Art. VI, 4, N.D. Const., "only upon agreement of four of the five judges of our State Supreme Court may a statute enacted by our legislature be struck down as unconstitutional." Materi, 177 N.W.2d at 537. Permitting one district judge to have the final say on the constitutionality of a statute would "offend the spirit of that section of our Constitution." Id. Thus, a district court decision holding a statute unconstitutional is appealable. Id.
In 29-01-32(1), N.D.C.C., the legislature has provided that a defendant in a criminal proceeding who successfully requests information from the prosecuting attorney must reciprocate by providing information to the prosecutor:
"Upon the prosecuting attorney's compliance with a written request of the defendant for disclosure under subparagraph C or D of paragraph 1 of subdivision a of rule 16 or subdivision f of rule 16 of the North Dakota Rules of Criminal Procedure, the defendant, upon written request by the prosecuting attorney, shall reciprocate in kind and disclose to the prosecuting attorney:
"a. The names and addresses of persons, other than the defendant, the defendant's attorney intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons or reports of the statements of those persons, including any reports or statements of experts made in connection with the case, and including the results of physical or mental examinations, scientific tests, experiments, or comparisons that the defendant intends to offer in evidence at the trial.
"b. Any real evidence that the defendant intend to offer in evidence at the trial."
Sanctions for violating the statute are provided in 29-01-32(2) and 29-01-32(3), N.D.C.C.(2)
Rule 16(a)(1)(C) and (D), N.D.R.Crim.P., deal with prosecution disclosure of documents, tangible objects, physical or mental examinations, and results or reports of scientific tests or experiments. Upon the prosecution's compliance with a defense request under Rule 16(a)(1)(C) or (D), Rule 16(b), N.D.R.Crim.P., imposes a narrower disclosure duty upon defendants than does 29-01-32, N.D.C.C.:
"(b) Disclosure of Evidence by the Defendant.
"(1) Information Subject to Disclosure.
"(A) Documents and Tangible Objects. If the defendant, in writing, requests disclosure under subdivision (a)(1)(C) or (D), upon compliance with the request by the prosecution, the defendant, upon written request of the prosecution, shall permit the prosecution to inspect and copy or photograph books, papers, documents, photographs,

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tangible objects, or copies or portions thereof, which the defendant intends to produce in chief at the trial and which are within its possession, custody, or control.
"(B) Reports of Examinations and Tests. If the defendant, in writing, requests disclosure under subdivision (a)(1)(C) or (D) upon compliance with the request by the prosecution, the defendant, on written request of the prosecution, shall permit the prosecution to inspect and copy or photograph any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession or control of the defendant, which the defendant intends to introduce as evidence in chief at the trial or which were prepared by a witness whom the defendant intends to call at the trial when the results or reports relate to the witness' testimony.
"(2) Information Not Subject to Disclosure. Except as to scientific or medical reports, this subdivision does not authorize the discovery or inspection of reports, memoranda, or other internal defense documents made by the defendant or the defendant's attorneys or agents in connection with the investigation or defense of the case, or of statements made by the defendant, or by prospective prosecution or defense witnesses to the defendant or to the defendant's agents or attorneys."
Rule 16(f), N.D.R.Crim.P., requires the prosecution, upon written request, to disclose the names, addresses, and statements of prosecution witnesses the prosecutor intends to call in presenting the case in chief, statements of codefendants, and statements of other persons. Rule 16, N.D.R.Crim.P., has no similar disclosure requirements for
defense witnesses.(3)
The State contends that the requirement in 29-01-32, N.D.C.C., of disclosure of the names and addresses of persons the defendant intends to call as witnesses at trial "does not conflict with Rule 16 and is constitutional," because "Rule 16, N.D.R.Crim.P., does not deal with names and addresses of persons other than the defendant, whom the defendant's attorney intends to call as witnesses at trial." The State concedes that the requirement in 29-01-32, N.D.C.C., for pretrial disclosure of statements or reports of statements by defense witnesses conflicts with Rule 16, N.D.R.Crim.P., and "[s]ince Article VI, Section 3, of the North Dakota Constitution grants the Supreme Court rule superiority, this provision of the statute is not enforceable on a defendant." The State contends that the other pretrial disclosure requirements of 29-01-32, N.D.C.C., are consistent with similar provisions of Rule 16, N.D.R.Crim.P., and are,
therefore, valid.(4) We conclude that 29-01-32, N.D.C.C., conflicts with Rule 16, N.D.R.Crim.P., and is invalid in its entirety.
Article VI, 3, N.D. Const., provides in part:
"The supreme court shall have authority to promulgate rules of procedure, including appellate procedure, to be followed by all the courts of this state; and, unless otherwise provided by law, to promulgate rules and regulations for the admission to practice, conduct, disciplining, and disbarment of attorneys of law."
In support of its arguments, the State has drawn our attention to a large number of evidentiary and procedural statutes. Applying Art. VI, 3, N.D. Const., we have invalidated some statutory evidentiary and procedural rules, e.g., Arneson
v. Olson, 270 N.W.2d 125, 131-32 (N.D. 1978), and we have upheld others, e.g., City of Fargo v. Ruether, 490 N.W.2d 481, 483-84 (N.D. 1992). We have recognized that there is an "interplay between statutory procedures and rules promulgated by this court." Ruether, 490 N.W.2d at 483.

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The interplay between statutes and our rules is especially evident in the area of the admissibility of evidence. Our rules of procedure allow for a legislative power to make evidence admissible. Ruether, 490 N.W.2d at 483-84; State v. Vetsch, 368 N.W.2d 547, 551 (N.D. 1985). Rule 43(a), N.D.R.Civ.P., and Rule 26, N.D.R.Crim.P., provide that "[a]ll evidence shall be admitted which is admissible under the statutes of this State," or under rules adopted by this court. The Explanatory Note to Rule 43, N.D.R.Civ.P., says that the North Dakota Rules of Evidence, promulgated by this court, "generally control the admissibility of evidence in all civil trials, unless otherwise provided by statute or rule." The Explanatory Note to Rule 26, N.D.R.Crim.P., says that the North Dakota Rules of Evidence "generally control the admissibility of evidence in criminal trials." Both notes say that matters of competency and witness privileges are governed by our evidence rules, "unless otherwise provided by statute." Rule 402, N.D.R.Ev., provides in part: "All relevant evidence is admissible, except as otherwise provided . . . by statutes of North Dakota." Thus, we have provided in our rules that "even relevant evidence may be made inadmissible by the Legislature." Ruether, 490 N.W.2d at 484. Our rules have, then, countenanced a legislative power to make evidence admissible or inadmissible. "We give special deference to the Legislature when a statute governing admissibility of evidence is part of a legislative design that essentially authorizes and creates the item of disputed evidence." Ruether, 490 N.W.2d at 484.
Article XI, 26, North Dakota Constitution, states in part that "[t]he legislative, executive, and judicial branches are co

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