IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2023 ND 143

Department of Corrections and Rehabilitation, Petitioner

v. 

The Honorable Stacy J. Louser, Judge of the 

District Court, North Central Judicial District,

and State of North Dakota, and Adrian Rodriguez, Respondents

No. 20230117

Petition for Supervisory Writ.

PETITION FOR SUPERVISORY WRIT DENIED.

Opinion of the Court by Jensen, Chief Justice.

Scott O. Diamond, Special Assistant Attorney General, Fargo, ND, for

petitioner.

Mitchell D. Armstrong (argued) and Jon C. Lengowski (on brief), Special 

Assistant Attorneys General, Bismarck, ND, for respondent The Honorable 

Stacy J. Louser, Judge of the District Court, North Central Judicial District.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

AUGUST 2, 2023 

STATE OF NORTH DAKOTA
1

DOCR v. Louser

No. 20230117

Jensen, Chief Justice.

[¶1] The Department of Corrections and Rehabilitation (hereinafter “DOCR”) 

petitions the North Dakota Supreme Court to exercise its original supervisory 

jurisdiction to direct the Honorable Judge Stacy J. Louser (hereinafter “district 

court”) to amend a portion of a criminal judgment imposing probation as part 

of a sentence for a class B misdemeanor and requiring the DOCR to supervise 

the probation. The DOCR argues it does not have statutory authority to 

supervise probation when the underlying charge is a class B misdemeanor. The 

DOCR requests the criminal judgment be amended to relieve the DOCR from 

the obligation to supervise the probation. Without deciding whether the district 

court has the authority to require a defendant to be supervised by the DOCR 

as part of a sentence imposed for a class B misdemeanor, we conclude the 

DOCR does have the authority to provide the supervision and decline to 

exercise our supervisory jurisdiction.

I

[¶2] A defendant was charged with a single count of domestic violence—

bodily injury, a class B misdemeanor, in violation of N.D.C.C. § 12.1-17-

01.2(2)(a). The defendant entered an open plea, and the district court 

sentenced him to serve 30 days with the balance suspended, and to probation 

for 360 days, under the supervision of the DOCR. The DOCR informed the 

State it could not supervise the defendant because it was not authorized to do 

so under N.D.C.C. § 12.1-32-07(1), the statutory provision outlining sentencing 

procedures based upon the classification of offenses. A status conference to 

discuss the matter was held, during which the district court reaffirmed its 

ruling that required the DOCR to supervise probation.

[¶3] The DOCR now seeks a supervisory writ, arguing it lacks statutory 

authority under N.D.C.C. § 12.1-32-07(1) to supervise probation when the 

offense is a class B misdemeanor. The district court resists, arguing the plain 
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language of N.D.C.C. § 12.1-32-07(1) permissibly allows it to choose the DOCR 

or another community corrections program to supervise probation.

II

[¶4] The DOCR requests this Court exercise its supervisory jurisdiction and 

direct the district court to amend the criminal judgment to relieve the DOCR 

from the obligation to supervise the probation. We may exercise our 

supervisory authority under N.D. Const. art. VI, § 2. “We exercise our authority 

to issue supervisory writs rarely and cautiously, and only to rectify errors and 

prevent injustice in extraordinary cases when no adequate alternative remedy 

exists.” State, ex rel. Harris v. Lee, 2010 ND 88, ¶ 6, 782 N.W.2d 626. This 

Court’s authority to issue a supervisory writ is purely discretionary, and is 

determined on a case-by-case basis. Id.

III

[¶5] In seeking supervision, the DOCR argues N.D.C.C. § 12.1-32-07(1) 

precludes the DOCR from supervising probation when the underlying criminal 

conviction is a class B misdemeanor. Section 12.1-32-07(1), N.D.C.C., is as 

follows:

When the court imposes probation upon conviction for a felony 

offense subject to section 12.1-32-09.1 or 12.1-32-02.1, a second or 

subsequent violation of section 12.1-17-07.1, a second or 

subsequent violation of any domestic violence protection order, a 

violation of chapter 12.1-41, a violation of section 14-09-22, or a 

felony offense under chapter 39-08, the court shall place the 

defendant under the supervision and management of the 

department of corrections and rehabilitation. When the court 

imposes probation upon conviction or order of disposition in all 

other felony cases, the court may place the defendant under the 

supervision and management of the department of corrections and 

rehabilitation. In class A misdemeanor cases, the court may place 

the defendant under the supervision and management of the 

department of corrections and rehabilitation or other responsible 

party. In all other cases, the court may place the defendant under 

the supervision and management of a community corrections 

program other than the department of corrections and 
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rehabilitation. A community corrections program means a 

program for the supervision of a defendant, including monitoring 

and enforcement of terms and conditions of probation set by the 

court.

[¶6] The DOCR is incorrect in its assertion that N.D.C.C. § 12.1-32-07(1) 

grants or prohibits the DOCR power to supervise. Section 12.1-32-07(1) 

governs the power of the district court to order supervised probation and 

provides the court an outline of sentencing procedures when imposing 

probation as part of a sentence. The DOCR’s authority to supervise is found 

under N.D.C.C. § 54-23.3-01. Section 54-23.3-01 provides the DOCR “is 

responsible for the direction and general administrative supervision, guidance, 

and planning of adult and juvenile correctional facilities and programs within 

the state.” The DOCR includes a division that provides parole and probation 

for adult offenders. N.D.C.C. § 54-23.3-01. Section 54-23.3-01.1(4), N.D.C.C.,

defines an offender as “a person who has been committed to the legal and 

physical custody of the department of corrections and rehabilitation, or placed 

under the supervision and management of the department by a district 

court[.]” Section 54-23.3-01.1(6), N.D.C.C., defines probationer as “an offender 

who has been placed under the supervision and management of the 

department of corrections and rehabilitation by a district court[.]”

[¶7] The defendant in this case meets the definition of both offender and 

probationer under N.D.C.C. § 54-23.3-01.1(4) and (6) because the defendant 

has been placed under the supervision of the DOCR by the district court. 

Therefore, because the power of the DOCR to supervise is governed by 

N.D.C.C. § 54-23.3-01, the DOCR has broad authority to supervise when the 

court places an offender or probationer under the supervision of the DOCR. In 

this case, the DOCR has the authority to supervise the defendant.

[¶8] We decline to decide whether the district court is restricted under 

N.D.C.C. § 12.1-32-07(1) from directing the DOCR to supervise class B 

misdemeanors. Whether the court is prevented from imposing probation under 

the supervision of the DOCR when the underlying conviction is a class B 

misdemeanor can be challenged by individual defendants asserting the 

sentence exceeds the court’s statutory authority or creates an illegal sentence.
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[¶9] As noted above, this Court exercises its supervisory jurisdiction “rarely 

and cautiously.” Harris, 2010 ND 88, ¶ 6. The DOCR has broad authority under 

N.D.C.C. § 54-23.3-01 to supervise offenders and probationers when directed 

by the district court. We decline to exercise our discretion to grant supervisory 

relief and deny the DOCR’s petition.

IV

[¶10] We decline to exercise our supervisory jurisdiction and decline the 

request to direct the district court to amend the criminal judgment requiring 

the DOCR to supervise probation.

[¶11] Jon J. Jensen, C.J.

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

Douglas A. Bahr