                    Filed 10/29/19 by Clerk of Supreme Court

                          IN THE SUPREME COURT
                          ST AT E O F N O RTH D AK O T A


                                   2019 ND 256




State of North Dakota,                                        Plaintiff and Appellee

      v.

G.C.H,                                                    Defendant and Appellant




                                   No. 20190136




Certified question from the District Court of Stutsman County, Southeast Judicial
District, the Honorable Cherie L. Clark, Judge.

CERTIFIED QUESTION NOT ANSWERED, SUPERVISORY JURISDICTION
EXERCISED. AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

Opinion of the Court by Crothers, Justice.

Joseph Nwoga, Assistant State’s Attorney, Jamestown, ND, for plaintiff and appellee.

Ashley Schell, Fargo Public Defender Office, Fargo, ND, for defendant and appellant.
                                    State v. G.C.H.
                                     No. 20190136

Crothers, Justice.

[¶1]   This case is before the Supreme Court on the Stutsman County district court’s
certified question of law whether a married person under the age of eighteen is a
“child” under the Juvenile Court Act. We decline to answer the certified question.
However, this is an appropriate case in which to exercise our supervisory jurisdiction
and reverse and remand with directions to vacate the judgment and to dismiss the
case for lack of subject matter jurisdiction.

                                            I

[¶2]   G.C.H. is charged with five crimes which allegedly occurred when G.C.H. was
sixteen and seventeen years old. G.C.H. was married when the alleged crimes
occurred and still is married. G.C.H. filed a motion to dismiss for lack of subject
matter jurisdiction due to his age, claiming the proper jurisdiction was in juvenile
court. The district court denied the motion, finding G.C.H. was not a child under
North Dakota law because he was married. After other proceedings, G.C.H. filed a
motion to certify the question to the North Dakota Supreme Court. The district court
granted G.C.H.’s motion and certified the following question:

       “Is the Defendant a ‘child’ under N.D.C.C. § 27-20-04 [sic], who would
       therefore be under the exclusive jurisdiction of the Juvenile Court
       requiring the District Court to dismiss the above-referenced cases and
       refer the cases to Juvenile Court?”

[¶3]   G.C.H. argues a married defendant is a “child” under N.D.C.C. § 27-20-02(4)(b)
if the individual was under age twenty when the crime is charged, the defendant has
committed delinquent acts, and the delinquent acts were allegedly committed while
under the age of eighteen. Therefore, G.C.H. argues jurisdiction belongs in the
juvenile court rather than the district court.



                                            1
                                             II

[¶4]   G.C.H. argues the requirements of N.D.R.App.P. 47.1(a)(1) are met and the
Supreme Court should answer the certified question of law. The State did not oppose
the motion to certify the question. A state district court may certify questions of law
to the Supreme Court when two conditions are met:

       “(A) There is a question of law involved in the proceeding that is
       determinative of the proceeding; and
       (B) It appears to the district court that there is no controlling precedent
       in the decisions of the supreme court.”

N.D.R.App.P. 47.1(a)(1). G.C.H. argues prong A is met because the certified question
is principally determinative of the proceeding. At oral argument G.C.H. argued
jurisdiction has been the only issue in this case thus far. Therefore, answering the
question would be dispositive of the case. G.C.H. also argues time is of the essence
because he is subject to juvenile court only until he is twenty years old and the answer
to the certified question is vital to the case because the result is vastly different if the
juvenile court has jurisdiction.

[¶5]   For prong B, G.C.H. relies on the district court’s statement, “there is a question
of law that is determinative of the proceeding and it appears that there is no
controlling case law in the decisions of the North Dakota Supreme Court and that
there is a question of statutory interpretation.” G.C.H. argues the four cases
addressing N.D.C.C. § 27-20-02(4) do not provide the district court with controlling
precedent. (See State v. Arot, 2013 ND 182, 838 N.W.2d 409; State v. Woodrow, 2011
ND 192, 803 N.W.2d 572; Interest of C.S., 382 N.W.2d 381 (N.D. 1986); Interest of
E.B., 287 N.W.2d 462 (N.D. 1980).) Therefore, the Supreme Court has authority to
answer the certified question.

[¶6]   This Court has discretion to hear certified questions of law by the district court
and may refuse to consider a certified question if it is frivolous, interlocutory in
nature, or not dispositive of the issues before the district court. N.D.R.App.P.


                                             2
47.1(c)(1). A certified question will not be answered unless disposition of the case
depends wholly or principally upon the construction of law determined, regardless
whether the answer is in the negative or affirmative. Gelinske v. Farmers Grain &
Trading Co., 446 N.W.2d 261, 262 (N.D. 1989); Braaten v. Deere & Co., 547 N.W.2d
751, 752 (N.D. 1996). Answering a certified question that does not wholly or
principally dispose of the issues in the case would constitute issuing an impermissible
advisory opinion. State v. Larson, 313 N.W.2d 750, 757 (N.D. 1981) (VandeWalle, J.,
concurring in part and dissenting in part). “The statutes authorizing certification of
questions of law to this court do not contemplate our giving advisory opinions.”
Gelinske, 446 N.W.2d at 263.

[¶7]   Here, neither a negative nor affirmative answer would be dispositive of the
case. If G.C.H. is a child under N.D.C.C. § 27-20-02(4), the juvenile court still would
need to determine whether he was delinquent. If G.C.H. is not a child under N.D.C.C.
§ 27-20-02(4), a jury still would need to determine if G.C.H. is guilty of the alleged
crimes. Therefore, the certified question is not determinative of the proceedings.
N.D.R.App.P. 47.1(a)(1)(A). We decline to answer the certified question.

                                          III

[¶8]   Notwithstanding our declination to answering the certified question we
conclude this case justifies exercising supervisory jurisdiction. This Court has
authority to issue supervisory writs under N.D. Const. art. VI, § 2, and N.D.C.C. §
27-02-04. State v. Haskell, 2001 ND 14, ¶ 4, 621 N.W.2d 358 (citing Dimond v. State
Bd. of Higher Educ., 1999 ND 228, ¶ 19, 603 N.W.2d 66). The authority to issue
supervisory writs is discretionary; it cannot be invoked as a matter of right. Trinity
Med. Ctr. v. Holum, 544 N.W.2d 148, 151 (N.D. 1996); Odden v. O’Keefe, 450 N.W.2d
707, 708 (N.D. 1990). This Court determines whether it should exercise its original
jurisdiction to issue remedial writs on a case-by-case basis. Haskell, at ¶ 4. “Courts
generally will not exercise supervisory jurisdiction where the proper remedy is an
appeal merely because the appeal may involve an increase of expenses or an


                                          3
inconvenient delay.” Ziegler v. Meadowbrook Ins. Group, Inc., 2009 ND 192, ¶ 15, 774
N.W.2d 782 (citing Fibelstad v. Glaser, 497 N.W.2d 425, 429 (N.D. 1993)). “We
exercise our authority to issue supervisory writs rarely and cautiously, and only to
rectify errors and prevent injustice in extraordinary cases in which there is no
adequate alternative remedy.” Id.

[¶9]   Here, the issue is whether the district court or juvenile court has subject
matter jurisdiction. G.C.H. is currently eighteen years old and time is of the essence.
If we do not exercise supervisory jurisdiction, G.C.H.’s options are to plead guilty or
to go to trial in district court. At trial G.C.H. may be acquitted or found guilty. If
found guilty, he can appeal the subject matter jurisdiction issue. If we would conclude
on appeal that subject matter jurisdiction was improper in the district court, the
district court adjudication would be vacated and proceedings would need to start
anew in the juvenile court. The juvenile court only has jurisdiction over G.C.H. until
he is twenty years old, unless the state intentionally delayed the prosecution to avoid
juvenile court jurisdiction. N.D.C.C. § 27-20-34(8). Under these circumstances, we are
persuaded this case justifies the exercise of our supervisory jurisdiction.

                                          IV

                                           A

[¶10] G.C.H. argues he is a “child” under N.D.C.C. § 27-20-02(4)(b). The juvenile
court has exclusive jurisdiction over “[p]roceedings in which a child is alleged to be
delinquent, unruly, or deprived.” N.D.C.C. § 27-20-03(1)(a). A “child” is defined as:

       “‘Child’ means an individual who is:
              a. Under the age of eighteen years and is not married; or
              b. Under the age of twenty years with respect to a delinquent act
              committed while under the age of eighteen years.”

[¶11] G.C.H. argues N.D.C.C. § 27-20-02(4)(b) can be broken down into three parts.
First, the individual must be under the age of twenty when the petition is filed.
Second, the State must allege the defendant has committed a delinquent act that does

                                           4
not fall under N.D.C.C. § 12.1-31-03. Third, the delinquent acts must be committed
while under the age of eighteen. G.C.H. further argues even though he is not a child
under N.D.C.C. § 27-20-02(4)(a), he is not precluded from being a child under
N.D.C.C. § 27-20-02(4)(b). Therefore, the juvenile court has exclusive jurisdiction.


[¶12] The State argues G.C.H. is an adult under N.D.C.C. § 27-20-02(4)(a), therefore
he cannot be a “child” under N.D.C.C. § 27-20-02(4)(b). The State further argues
N.D.C.C. § 27-20-02(4)(b) provides an avenue for an unmarried person who
committed an offense while under eighteen to claim being a child if that person is
under twenty, and N.D.C.C. § 27-20-02(4)(b) does not apply to G.C.H. because he is
married. Therefore, the district court has exclusive jurisdiction.

[¶13] Our standard for statutory interpretation is well established:

             “Interpretation of a statute is a question of law fully reviewable
      on appeal. Our primary goal in statutory construction is to ascertain the
      intent of the legislature, and we first look to the plain language of the
      statute and give each word of the statute its ordinary meaning. When
      the wording of a statute is clear and free of all ambiguity, the letter of it
      is not to be disregarded under the pretext of pursuing its spirit. If,
      however, the statute is ambiguous or if adherence to the strict letter of
      the statute would lead to an absurd or ludicrous result, a court may
      resort to extrinsic aids, such as legislative history, to interpret the
      statute. A statute is ambiguous if it is susceptible to meanings that are
      different, but rational. We presume the legislature did not intend an
      absurd or ludicrous result or unjust consequences, and we construe
      statutes in a practical manner, giving consideration to the context of the
      statutes and the purpose for which they were enacted.”

State v. Brown, 2009 ND 150, ¶ 15, 771 N.W.2d 267 (citing In re M.W., 2009 ND 55,
¶ 6, 764 N.W.2d 185 (quoting State v. Fasteen, 2007 ND 162, ¶ 8, 740 N.W.2d 60)).
“Statutes relating to the same subject matter shall be construed together and should
be harmonized, if possible, to give meaningful effect to each, without rendering one
or the other useless.” Brown, at ¶ 15.




                                           5
[¶14] G.C.H. argues because N.D.C.C. § 27-20-02(4) uses the word “or,” subdivision
(a) or (b) can be satisfied independently. The State argues the use of “or” means a
person can be a “child” under (a) or (b), but since G.C.H. already is an adult under (a)
he cannot be a child under (b). We agree with G.C.H.

[¶15] N.D.C.C. § 27-20-02(4) is not ambiguous. “The word ‘or’ is disjunctive in nature
and ordinarily indicates an alternative between different things or actions.”
Industrial Contractors, Inc. v. Workforce Safety & Ins., 2009 ND 157, ¶12, 772 N.W.2d
582. As used in N.D.C.C. § 27-20-02(4)(a) the word “or” is disjunctive and provides
alternative circumstances when a person can claim the category of “child.”

[¶16] The parties agree G.C.H. is not a “child” under subsection (a) because he
married at sixteen, prior to committing the alleged acts. Therefore, the issue is
whether G.C.H. is a “child” under N.D.C.C. § 27-20-02(4)(b). G.C.H. argues subsection
(b) does not include the word “marriage” and therefore a married individual can be a
“child” under N.D.C.C. § 27-20-02(4)(b). G.C.H. argues this makes sense because
when a child is married they can no longer be deprived by their parent, and cannot
claim they are a “child” under (a). However, subsection (b) specifically applies to
delinquent acts and therefore a married juvenile still can be delinquent. We agree
because plain language of the statute provides that any individual under twenty who
is alleged to have committed a delinquent act while under eighteen is a child.
Subsection 27-20-02(4)(a), N.D.C.C., specifies that a married minor is not a “child” for
purposes of the Juvenile Court Act. Subsection 27-20-02(4)(b), N.D.C.C., has no
similar exclusion. In drafting statutes we presume the legislature intended all that
it said, said all that it intended to say, and meant what is has plainly expressed. See
Estate of Christeson v. Gilstad, 2013 ND 50, ¶ 12, 829 N.W.2d 453; State v. Dennis,
2007 ND 87, ¶ 12, 733 N.W.2d 241.

[¶17] Our interpretation of N.D.C.C. § 27-20-02(4) is consistent with and confirmed
by legislative history. The first mention of marriage was in 1971 when the statute
read:


                                           6
      “1. ‘Child’ means an individual who is:
           a. Under the age of eighteen years, and not married or not a
               member of the armed services;
           b. Under the age of twenty-one years who committed an act of
               delinquency while a child.”

(1971 N.D. Sess. Laws ch. 306, § 1). In 1971, subsections (a) and (b) were not
separated by the word “or.” Additionally, subsection (b) stated, “committed an act of
delinquency while a child.” The words “while a child” suggest a connection between
subsection (a) and (b) and therefore not being married as outlined in subsection (a) is
required. By comparison, the current statute separates the subsections with the word
“or” and states, “while under the age of eighteen years” instead of “while a child.”
Therefore, in the current statute the connection between subsection (a) and (b) no
longer exists and subsection (b) stands alone.

                                           B

[¶18] Section 27-20-02(4)(b), N.D.C.C., has three prongs and the next question is
whether G.C.H satisfies them. Under N.D.C.C. § 27-20-02(4)(b), the individual must
be under the age of twenty; alleged to have committed a delinquent act; and allegedly
committed the act before turning eighteen.

[¶19] First, the record establishes G.C.H. turned eighteen in March of 2019.
Therefore, he is under twenty years old and meets the first prong of N.D.C.C. § 27-
20-02(4)(b).

[¶20] Second, N.D.C.C. § 27-20-02(6) defines a delinquent act as “[a] crime under the
law, including local ordinances or resolutions of this state, or of another state if the
act occurred in that state, or under federal law, and the crime does not fall under
subdivision c of subsection 19.” Subdivision 19(c) states, “‘[u]nruly child’ means a
child who: . . . Has committed an offense applicable only to a child, except for an
offense committed by a minor fourteen years of age or older under subsection 2 of
section 12.1-31-03 or an equivalent local ordinance or resolution.” None of the acts



                                           7
alleged in G.C.H.’s case fall under subsection 2 of section 12.1-31-03. Therefore,
G.C.H. meets the second prong of N.D.C.C. § 27-20-02(4)(b).

[¶21] Third, the record establishes the delinquent acts allegedly occurred on
December 30, 2017, April 3, 2018, June 28, 2018, August 13, 2018 and August 31,
2018. G.C.H. was either sixteen or seventeen during these dates. Therefore, he was
under eighteen when he allegedly committed the delinquent acts. G.C.H. meets the
third prong of N.D.C.C. § 27-20-02(4)(b). Because G.C.H. satisfies all three prongs, he
is a “child” under N.D.C.C. § 27-20-02(4)(b), and exclusive jurisdiction over his case
is in juvenile court.

                                          V

[¶22] The district court lacks subject matter jurisdiction over G.C.H. because he is a
“child” under N.D.C.C. § 27-20-02(4)(b). We exercise our supervisory jurisdiction and
reverse and remand with directions to vacate the judgment and dismiss the case for
lack of subject matter jurisdiction. The state can decide whether to initiate
proceedings against G.C.H. in juvenile court.

[¶23] Daniel J. Crothers
      Lisa Fair McEvers
      Jon J. Jensen
      Jerod E. Tufte
      Gerald W. VandeWalle, C.J.




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