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In re M.S.

Supreme Court of North Dakota

August 29, 2017

In the Interest of M.S. Southeast Human Service Center, Petitioner and Appellee
v.
M.S., Respondent and Appellant

         Appeal from the District Court of Richland County, Southeast Judicial District, the Honorable Bradley A. Cruff, Judge..

          Ronald W. McBeth (on brief), Richland County State's Attorney, Wahpeton, ND, for petitioner and appellee.

          Jason R. Butts (on brief), Wahpeton, ND, for respondent and appellant.

          OPINION

          VandeWalle, Chief Justice.

         [¶ 1] M.S. appealed from district court orders for less restrictive treatment and denying his demand for a change of judge. We affirm, concluding the court did not err in denying M.S.'s demand for a change of judge.

         I

         [¶ 2] M.S. was subject to an existing one-year order for less restrictive treatment relating to his mental illness. On June 8, 2017, before the order expired, the Southeast Human Service Center filed a petition for continuing treatment under N.D.C.C. § 25-03.1-23, alleging M.S. required further psychiatric care and was unwilling to adhere to treatment on his own. On June 15, 2017, M.S. filed a demand for change of judge under N.D.C.C. § 29-15-21. Judge Daniel Narum, as presiding judge, denied his request, finding that Judge Bradley Cruff was assigned to M.S.'s case in 2013 and had made rulings in the matter. After a hearing, the district court found M.S. required continuing treatment and ordered that M.S.'s less restrictive treatment be extended for one year, to June 2018.

         II

         [¶ 3] M.S. does not challenge any of the findings of fact or conclusions of law related to the order for less restrictive treatment. The sole issue on appeal is whether Judge Narum erred in denying his demand for a change of judge.

         [¶ 4] Section 29-15-21, N.D.C.C., governs a demand for change of judge. Under N.D.C.C. § 29-15-21(2), "[t]he demand is invalid unless it is filed with the clerk of the court not later than ten days after the occurrence of the earliest of any one of the following events:"

a. The date of the notice of assignment or reassignment of a judge for trial of the case;
b. The date of notice that a trial has been scheduled; or
c. The date of service of any ex parte order in the case signed by the judge against whom the demand is filed.

         We note that M.S.'s demand stated he filed it in good faith under N.D.C.C. § 29-15-21 and did not allege Judge Cruff demonstrated bias against him. See Gray v. Berg, 2015 ND 203, ¶ 9, 868 N.W.2d 378 (stating a demand for change of judge alleging ...


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