Altru Health System Legal Department

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[¶ 13] Article 1-02-10, N.D.C.C., states: «No part of this Code shall be retroactive unless expressly declared as such.»   Although the clear wording of this law is clear, previous case law has considered this rule to be praetorial because it is a canon of legal construction and is therefore «subordinate to the objective of legal interpretation: to determine and implement legislative intent.»  State v Cummings, 386 N.W.2d 468, 471 (N.D.1986).   According to the Cummings Court, N.D.C.C. § 1-02-10 and the other rules of interpretation are only guidelines if the legislative intent can be extrapolated in another way. [¶ 10] Too much importance was attached to Larson`s dates.   Whether the date of commencement of the case or the date of the violation is used was not relevant in larson, as N.D.C.C. § 28-01-46 (1981) was in force in both periods.  Larson only defends the principle that, between the start date and the date on which the defendant proceeds with the release, checks the start date.   Greater authority in this case can be found in Fortier v. Traynor, 330 N.W.2d 513, 515-16 (N.D.1983).   In Fortier, the General Court held that the law applicable to professional misconduct actions is the law in force at the time the plea arose.

 See also Hoffner, 2003 ND 79, ¶ 11, 660 N.W.2d 909 (the holding of a plea arises as soon as an offence has occurred and manifested itself);  State v Dimmler, 456 N.W.2d 297, 298 (N.D.1990) (the correct date to be used to determine the relevant law is the date on which the claim arose).  [¶ 4] White is appealing the District Court`s September 27 order. December 2006, which rejected his request for reconsideration of the rejection, the application to amend the appeal and the application for setting aside the judgment.  »The right of appeal is a question of jurisdiction that this Court can consider for itself.»  Pratt v. Altendorf, 2005 ND 32, ¶ 4, 692 N.W.2d 115.   Whether an order made in civil proceedings may be considered by that court is determined by law.   See N.D.C.C. § 28-27-02.   This court will not consider interim remedies unless it can be held that the underlying injunction «should be final in all respects».  Sime v.

Tvenge Assoc. Architects, 488 N.W.2d 606, 608 n. 1 (N.D.1992).   Normally, a decision resulting from an application for annulment of the judgment or an application to vary the appeal is considered an interim measure and is therefore not subject to appeal.  Industry Comm`n c. Kuntz, 486 N.W.2d 249, 251 (N.D.1992);  Barth v. Schmidt, 472 N.W.2d 473, 474 (N.D.1991).   Similarly, requests for reconsideration of dismissal are generally not subject to appeal as they are treated as requests for modification or additional judgment or as applications for annulment.  Dvorak v. Dvorak, 2001 ND 178, ¶ 9, 635 N.W.2d 135.   However, injunctions are voidable if the court «considers it to be an appeal against an injunction or a subsequent final judgment».

 Dvorak v. Dvorak, 2007 ND 79, ¶ 7, 372 N.W.2d 698. Shafer-Imhoff, at ¶ 42 (emphasis added) (internal citations omitted).   This «narrow exception» has expanded over time, sweetening Reiling`s original Bright Line effect.   This move away from the clear line of the reiling rule was later described as «nonsense.»  Smith v Baumgartner, 2003 ND 120, ¶ 26, 665 N.W.2d 12 (VandeWalle, C.J., different).  »It seems that the majority has abandoned the requirement of reissue, and I fear that in the future the court will look in the corners and under the rocks to implicitly find the express intention required by the N.D.C.C. § 1-02-10 to apply a law retroactively.»  Smith, at ¶ 27. [¶ 20] Without Reilling`s clear rule, the courts were sent to look for evidence indicating the intention of the legislator.   Under N.D.C.C. § 1-02-10 and Reiling, the guideline was clear.   If a law is to apply retroactively, the legislator must expressly declare it.

  See N.D.C.C. § 1-02-10.   Allowing this Court`s conclusion as a substitute for an explicit instruction from Parliament is a precarious proposition that leads to unpredictable and inconsistent outcomes.  [¶ 12] Since the injury would have occurred while N.D.C.C. Subsection 28-01-46 (1997) was in force, a later version of the Act can only be applied if it is established that the Act warrants retroactive application.   The legislator may apply a law retroactively as long as it does not affect substantive rights.   See State v. Norman, 2003 ND 66, ¶ 21, 660 N.W.2d 549.   However, the legislative direction to bring legislation into force retroactively must be clear.  [¶ 6] Article 28-01-18 (3), N.D.C.C., provides for a two-year limitation period for claims for medical malpractice.

  The limitation period «begins to run only when the plaintiff has knowledge of the breach, its cause and possible negligence of the defendant or must have knowledge of it with due diligence».  Hoffner v. Johnson, 2003 ND 79, ¶ 10, 660 N.W.2d 909.   White`s claim for medical malpractice arises from an operation performed on February 10, 2004.   White said this on the 15th. He was hospitalized in March 2004 due to complications from the operation.   For the purposes of this appeal, we find only that the Act began to apply on or about March 15, 2004 and expired on March 15, 2006.   The White case was dismissed on 17 October 2006, a few months after the law expired.   White is not allowed to start another action.   Since the statute of limitations has expired and the unharmed dismissal effectively terminated White`s claims, motion orders are voidable after the judgment.

 [¶ 9] The District Court applied the version of N.D.C.C. § 28-01-46 in effect on the date of the opening of White`s action.   The Court relied on Larson and stated: [¶ 14] The approach in Cummings might be correct if the rules of interpretation were generally used, but were not actually codified by Parliament.   But these rules of interpretation have been codified, and they have legal effect.   See 1A Sutherland, Statutory Construction § 28.8 (6th ed. 2002) (which states: «Everything contained in a codification duly promulgated by the legislature has legislative effect», with the exception of rare exceptions, including laws declared invalid on constitutional grounds or laws that contain a gap in the procedures of the decree);  see also State v. Flatt, 2007 ND 98, ¶ 22, 733 N.W.2d 608 (Sandstrom, J., approving in particular) («The legislature has informed us that if a new decree were to apply retroactively, the legislature itself will expressly declare it as such.   If this rule is to be amended, it is also the task of the legislator.   This basic principle is as old as the Constitution and as enduring as our American democracy.

In this State, there is no customary law in which the law is declared by the code.  N.D.C.C. § 1-01-06.   We are therefore obliged to comply with the law provided for by law, including the legal rules of interpretation. It is important to note that, although the reiling rule has been called into question by some recent decisions of the Court of Justice, the distinction between substantive and procedural laws for the purposes of retroactivity has not been restored.   See, for example, Cummings, 386 N.W.2d 468.  [¶ 8] The outcome of this case depends on the applicable version of the N.D.C.C. § 28-01-46.  Article 28-01-46, N.D.C.C., «was simply designed to minimize frivolous claims [of misconduct]» by requiring the plaintiff to obtain an expert opinion that supports [its claims] in the early stages of the [] litigation.»  Larson v. Hetland, 1999 ND 98, ¶ 12, 593 N.W.2d 785 (cited in Heimer v. Privratsky, 434 N.W.2d 357, 359 (N.D.1989)).

  In the 1997 version of the Act, a relevant part states: «This section does not apply to the alleged lack of informed consent.» N.D.C.C. § 28-01-46 (1997).   The 2005 amendment repeals this exception.  N.D.C.C. § 28-01-46 (2005).   In the present case, two questions concern the version of the law that is applied.   First, we determine whether the District Court correctly used the version of the law in effect on the day White`s lawsuit began, rather than the version in effect at the time of his violation.   Second, we check whether N.D.C.C.

Article 28-01-46 should be applied retroactively. Learn more about FindLaw`s newsletters, including our Terms of Service and Privacy Policy. [¶ 15] Despite the legal limitation of retroactive application, this Court has in the past distinguished between substantive and procedural laws in the application of N.D.C.C. § 1-02-10.  Reiling v. Bhattacharyya, 276 N.W.2d 237, 239 (N.D.1979).  »Over the past eighty years, this Court has followed the rule that substantial legislation cannot be applied retroactively if there is no specific legislative intent, but has made various decisions on the retroactive effect of procedural laws.»  Reiling rejected this inconsistent approach by establishing two clear and unambiguous rules for the retroactive application of laws. «[Article] 1-02-10, N.D.C.C., applies to all laws adopted by the legislature, whether substantive or procedural.   All laws adopted by the legislator must be applied prospectively, that is, they must be applied only to means that arise after the date of entry into force of the law, unless the legislator makes it clear that they are to be applied retroactively. » The e-mail address cannot be subscribed.