IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2024 ND 162

Thomas L. Zundel, Petitioner

v.

City of Jamestown; and Jamestown Municipal Court, Respondents

No. 20240080

Petition for Writ of Mandamus.

PETITION GRANTED IN PART AND DENIED IN PART.

Opinion of the Court by Tufte, Justice.

Jesse H. Walstad, Bismarck, N.D., for petitioner.

Abbagail C. Geroux (argued), Assistant City Prosecutor, and Leo A. Ryan (on 

brief), City Prosecutor, Jamestown, N.D., for respondents.
1

Zundel v. City of Jamestown

No. 20240080

Tufte, Justice.

[¶1] Thomas Zundel petitions this Court for a writ of mandamus ordering 

the Jamestown Municipal Court to close a 1990 criminal case and for declaratory 

relief restoring his constitutional rights under article I, section 1 of the 

North Dakota Constitution and the Second Amendment of the United States 

Constitution. We grant the petition in part and deny the petition in part.

I

[¶2] Thomas Zundel attempted to buy a firearm, but the purchase was denied 

when a background check using the National Instant Criminal Background 

Check System (NICS) revealed a 1990 simple assault charge in Jamestown 

Municipal Court. NICS showed the charge was continued for a year and Zundel 

was ordered to participate in counseling. NICS failed to confirm a conviction. 

Zundel filed a voluntary appeal of the NICS denial with the FBI. The FBI 

determined the 1990 case was a “potential prohibitor” and told Zundel to contact 

the Jamestown Police Department to obtain the missing information on the 

charge within 88 days or the file could not be processed.

[¶3] Zundel attempted to obtain records from the Stutsman County Clerk of 

Court and the Jamestown Municipal Clerk of Court, but both responded that 

they had no records relating to his arrest or conviction or any other records of a 

court case. He also requested records from the Jamestown Police Department, 

Jamestown City Attorney, North Dakota BCI, and FBI. None had any records 

beyond the criminal background check reflecting a 1990 arrest by the Jamestown 

Police Department for simple assault annotated as “CONTINUED FOR 1 YR 

PENDING COUNSELING OUTCOME.” Zundel explained to the FBI that his 

search for records had failed and requested a favorable adjudication. The FBI 

denied the appeal, holding the absence of a final disposition meant the 

potentially prohibiting record could not be nullified. Zundel now petitions this 

Court for a writ of mandamus directing the Jamestown Municipal Court to close 

his simple assault case.
2

II

[¶4] Article VI, section 2 of the North Dakota Constitution states this Court 

“shall have appellate jurisdiction, and shall also have original jurisdiction with 

authority to issue, hear, and determine such original and remedial writs as may 

be necessary to properly exercise its jurisdiction.” “This Court’s authority to 

issue original writs is discretionary and may not be invoked as a matter of right.” 

Berg v. Jaeger, 2020 ND 178, ¶ 7, 948 N.W.2d 4. “It is well settled that the power 

to exercise our original jurisdiction extends only to those cases where the 

questions presented are publici juris and affect the sovereignty of the state, the 

franchises or prerogatives of the state, or the liberties of its people.” Riemers v. 

Jaeger, 2018 ND 192, ¶ 5, 916 N.W.2d 113. “The interest of the state must be 

primary, not incidental, and the public must have an interest or right that is 

affected.” Id.

[¶5] The issues in this case concern the municipal court’s duty to maintain 

accurate public records concerning the disposition of cases it has adjudicated 

and to provide those records to the public when requested. As part of its 

administrative supervision over the state’s unified judicial branch, the supreme 

court has provided record retention requirements for all courts in this state. N.D. 

Sup. Ct. Admin. R. 19 (“This rule applies to all court records under the 

jurisdiction of the clerks of district court, municipal judges, and to commissions, 

boards, committees, and offices under the supervision of the supreme court.”).

[¶6] The courts of this state have a fundamental obligation to maintain accurate 

records of their proceedings. These records serve as the cornerstone of an open 

and accountable judicial system. This duty is not a matter of mere administrative 

convenience—it plays a crucial role in upholding the principles of due process 

and the rule of law. By accurately documenting court proceedings, decisions, 

and the rationale behind them, courts create an accessible record that allows for 

public scrutiny, facilitates appellate review, and ensures consistency in the 

application of law. Accurate and complete court records are essential for 

background checks for security clearances and sensitive employment positions, 

ensuring that decision-makers have a comprehensive understanding of an 

individual’s legal history. In criminal proceedings, these records provide crucial 
3

information for sentencing decisions and can be used to assess the credibility of 

witnesses. Furthermore, in family law matters, court records play a pivotal role 

in informing decisions about parenting time and visitation rights, directly 

affecting the well-being of children and families. Here, the right to keep and bear 

arms is implicated; in other situations, the right to vote or restrictions on 

participation in federal benefits and other programs may be affected. Beyond 

these examples, court records can also be critical in immigration proceedings, 

professional licensing decisions, and even in protecting individuals from 

identity theft or mistaken identity in legal matters. Ultimately, the careful 

maintenance of court records is essential to the integrity of the judicial system 

by fostering public trust and safeguarding the rights of all individuals who come 

before the court, while also serving as a vital resource for personal, professional, 

and legal decisions that extend far beyond the courtroom.

[¶7] Under article XI, section 6 of the North Dakota Constitution: “Unless 

otherwise provided by law, all records of public or governmental bodies . . . shall 

be public records, open and accessible for inspection during reasonable office 

hours.” Our rules recognize the public has an interest in access to court records, 

which are presumed open. N.D. Sup. Ct. Admin. R. 41; State v. M.J.W., 2020 ND 

183, ¶ 6, 947 N.W.2d 906. We conclude retention of and access to court records is 

a matter of public interest warranting the exercise of this Court’s original 

jurisdiction to consider Zundel’s petition.

III

[¶8] Zundel argues this Court should mandate closure of his Jamestown 

Municipal Court simple assault case from November 1990.

[¶9] Section 32-34-01, N.D.C.C., empowers this Court to issue a writ of 

mandamus:

The writ of mandamus may be issued by the supreme and district 

courts to any inferior tribunal, corporation, board, or person to 

compel the performance of an act which the law specially enjoins as 

a duty resulting from an office, trust, or station, or to compel the 

admission of a party to the use and enjoyment of a right or office to 
4

which the party is entitled and from which the party is precluded 

unlawfully by such inferior tribunal, corporation, board, or person.

[¶10] Whether to issue a writ of mandamus is left to this Court’s discretion. Little 

v. Stark Cnty. Sheriff on behalf of Stark Cnty. Sheriff’s Office, 2018 ND 22, ¶ 8, 906 

N.W.2d 333. “A petitioner for a writ of mandamus must show there is no plain, 

speedy, and adequate remedy in the ordinary cause of the law and that they have 

a clear legal right to the performance of the particular act sought to be compelled 

by the writ.” Larson v. N. Dakota Workforce Safety and Ins., 2022 ND 118, ¶ 17, 975 

N.W.2d 552 (quoting Motisi v. Hebron Pub. Sch. Dist., 2021 ND 229, ¶ 10, 968 

N.W.2d 191) (quotations omitted); Trinity Hosps. v. Mattson, 2006 ND 231, ¶¶ 6-

8, 723 N.W.2d 684.

A

[¶11] The City of Jamestown and the Jamestown Municipal Court argue this 

Court should not grant a writ because Zundel has an adequate remedy in federal 

court under Ross v. Fed. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 903 F. 

Supp. 2d 333, 337 (D. Md. 2012).

[¶12] In Ross, the Plaintiff attempted to buy a firearm, but his purchase was 

delayed because he had a potentially prohibitive charge on his record for a 1965 

arrest for “Assault on Female,” but the record did not show a conviction. 903 F. 

Supp. 2d at 337. NICS informed Ross it was unable to complete his information, 

which would subject his future firearms transactions to delay. Id. at 341. The 

court found the NICS Section erroneously shifted the burden to Ross to prove 

there was not a conviction by requiring him to submit an updated record, and 

concluding “[n]othing in the regulations supports the NICS Section’s position 

that the prospective transferee must disprove the existence of a potentially 

disqualifying criminal record to avoid all future delays.” Id. The Court held that 

because there was no recorded conviction, the Plaintiff was improperly denied a 

firearm. Id. at 342.

[¶13] If Zundel filed suit in federal district court, the court may be persuaded by 

the reasoning of the court in Ross, but a district court opinion from another 

federal circuit is not binding on other courts. A federal court relying on Ross may 
5

provide a remedy for Zundel, but only for a particular firearms transaction. 

Although this petition arises in response to a denied firearms transaction, 

Zundel’s request relates to state court records. A federal suit would not be an 

adequate alternative remedy to vindicate Zundel’s and the public’s clear legal 

right to access accurate court records. Thus, we exercise our discretion to 

consider whether the municipal court satisfied its duty to maintain and provide 

access to court records and whether to issue a writ ordering the municipal court 

to take further action relating to the records at issue here.

B

[¶14] “The judicial power of the state is vested in a unified judicial system 

consisting of a supreme court, a district court, and such other courts as may be 

provided by law.” N.D. Const. art. VI, § 1. “The supreme court shall have 

authority to promulgate rules of procedure . . . to be followed by all the courts of 

this state.” N.D. Const. art. VI, § 3. Under North Dakota Supreme Court 

Administrative Rule 19(2)(c) (1978 Rev. 1985), “[t]he judge of a municipal court 

or a clerk designated by the judge shall be responsible for the administration of 

all municipal court records in accordance with this records retention schedule.” 

The retention schedule in effect in 1990 specified a retention period of 

“permanent” for the Register of Criminal Actions, which required the municipal 

court to keep that record indefinitely. N.D. Sup. Ct. Admin. R. 19(8)(34) (1985).

[¶15] The retention schedule and Rule 19 have been amended several times since 

then, but at all relevant times the rules required municipal courts to indefinitely 

retain the register of criminal actions. N.D. Sup. Ct. Admin. R. 19(4)(a). A record 

must be kept of the destruction, transfer to the state archives, or other disposition 

of court records. N.D. Sup. Ct. Admin. R. 19(6). The disposition of a criminal 

action, such as a judgment of conviction, a finding of not guilty, or other reason 

for discharge, is an essential part of the register of actions and must be filed and 

retained permanently in the register of actions. See N.D.R.Crim.P. 32(b). As a 

court of this state subject to Rule 19, the municipal court has a duty to maintain 

records.
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[¶16] According to the FBI report attached as an exhibit to this petition, Zundel 

was arrested by the Jamestown Police Department for simple assault on 

November 2, 1990. If it had been retained, the missing record of actions for this 

case would inform Zundel and the public of the disposition of any court case 

filed as a result of his 1990 arrest. A register of actions containing the disposition 

of this case should have been indefinitely retained, but the record apparently 

does not exist. We must therefore consider what the duty of a court is when it 

appears a register of actions containing the disposition cannot be located.

[¶17] “Statutes may prescribe the procedure to obtain restoration or substitution 

of lost or destroyed judicial records[.]” 52 Am. Jur. 2d § 21. Such statutes 

“address the issue in various ways, such as by permitting a party to seek a court 

declaration as to whether a record existed, and if so, what the substance of it 

was.” Id. For example, federal statutes govern procedures to restore lost or 

destroyed records of files of a court of the United States. See 28 U.S.C. § 1735. 

“Whenever the United States is interested in any lost or destroyed records or 

files of a court of the United States, the clerk of such court and the United States 

attorney for the district shall take the steps necessary to restore such records or 

files, under the direction of the judges of such court.” 28 U.S.C. § 1735(b). North 

Dakota does not have a specific statute or procedure in place for lost, destroyed, 

or missing administrative records. Notably, however, in cases involving lost or 

missing evidentiary records, the solution is generally recreation of the record. 

See e.g., Masset v. Dir., N. Dakota Dep’t of Transp., 2010 ND 211, ¶ 9, 790 N.W.2d 

481 (holding “the Department must recreate the record through [ ] testimony 

which is sufficient in the hearing officer’s discretion to replace evidence lost 

when the original recording failed”). In cases where the record is unclear, it is 

the duty of the district court to settle the record. See, e.g., N.D.R.App.P. 10(h)(1) 

(“If any difference arises about whether the record truly discloses what occurred 

in the district court, the difference must be submitted to and settled by the 

district court and the record conformed accordingly.”).

[¶18] Courts, as keepers of the record, have an inherent power to restore or 

substitute lost or destroyed records. See 52 Am. Jur. 2d § 19 (“Inherent in every 

court of general jurisdiction is the power to restore or substitute papers, files, 

and records which have been lost or destroyed[.]”). “Given the inherent powers 
7

of the court to restore its own records, statutory methods for supplying lost 

records may not be the exclusive method of doing so.” 52 Am. Jur. 2d § 19; see 

also Red River & Lake of the Woods R.R. Co. v. Sture, 32 Minn. 95, 100, 20 N.W. 229, 

231 (1884) (“Independently of statute, and by virtue of its inherent powers, 

unaffected by lapse of time, every court has the right to replace its records when 

lost or destroyed by accident, negligence, or wantonness.”). A court, including 

the municipal court here, has a duty to replace or reconstruct the record. Absent 

a statutory procedure to do so, the court has discretion how to restore the record. 

See, e.g., N.D.R.App.P. 10(h) (absent stipulation by the parties, the district court 

shall settle the record).

[¶19] The first logical step is for the custodian to thoroughly search its records 

in an attempt to locate the record. See N.D. Sup. Ct. Admin. R. 19(2)(d) (“Each 

district and municipal court must designate an administrative records custodian 

to manage retention and disposition of the administrative records under the 

court’s jurisdiction.”). If the record cannot be located, then a reasonable attempt 

to reconstruct the record must be made. Reasonable attempts may include 

seeking copies from other public agencies, litigants, or others likely to have 

retained copies, or by examining any available related documents. See, e.g., Haney 

v. Haney, 163 Minn. 114, 119, 203 N.W. 614 (1925) (accepting an affidavit made 

by counsel wherein he detailed the contents of a missing record and explaining 

“statute authorizes the court to permit a copy to be filed and used instead of a 

lost file”). The parties may submit their own affidavits or documentary support. 

See, e.g., N.D.R.App.P. 10(f) (party may prepare a statement of the proceedings 

from the “best available means” including his own recollection, and opposing 

party may submit objections to the statement). Upon request, the court may 

schedule a hearing to address any missing record to allow interested persons to 

present any documents or testimony relevant to the inquiry. See In re Bird’s Est., 

410 Ill. 390, 400, 102 N.E.2d 329 (1951) (stating the power to restore lost records 

is inherent and “the court must proceed cautiously in any such proceeding to 

restore lost records”); contra White v. United States, No. 07-CV-262, 2010 WL 

455260, at *1 (E.D. Wis. Feb. 9, 2010) (“28 U.S.C. § 1735(b) is a discretionary rule 

that requires a hearing to restore a record ‘only where a judge of the district court 

so directs.’”). Ultimately, the court may make findings and enter an order 
8

regarding the missing record, detailing the steps taken to locate or reconstruct 

the missing record and stating the outcome of that effort. That order must be 

kept as a substitute for the missing record.

[¶20] We grant the petition in part and order the Jamestown Municipal Court to 

conduct further proceedings consistent with this opinion.

IV

[¶21] Zundel also seeks declaratory relief, arguing this Court should declare 

Zundel was not charged with a crime involving domestic violence. Zundel also 

argues this Court should declare he was not convicted of domestic violence in 

relation to his November 1990 simple assault charge and his right to possess a 

firearm was not legally impaired.

[¶22] “The declaratory judgment act, NDCC Ch. 32–23, is remedial and is to be 

liberally construed to settle uncertainty concerning rights, statuses, and other 

legal relations.” Medcenter One, Inc. v. N. Dakota State Bd. of Pharmacy, 1997 ND 

54, ¶ 9, 561 N.W.2d 634. Zundel asks us to resolve whether the facts underlying 

the Jamestown Municipal Court simple assault case from November 1990, or the 

nature of any resulting conviction, involved domestic violence without any 

evidence in the record on which we could make such a finding. We deny his 

requests for declaratory relief.

V

[¶23] We grant the petition in part and direct the Jamestown Municipal Court to 

perform a diligent inquiry and set out the results of that inquiry in a record to be 

maintained consistent with N.D. Sup. Ct. Admin. R. 19. We deny the petition’s 

requests for declaratory relief.

[¶24] Jon J. Jensen, C.J.

Lisa Fair McEvers

Jerod E. Tufte

Douglas A. Bahr

Daniel D. Narum, D.J.
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[¶25] The Honorable Daniel D. Narum, District Judge, sitting in place of 

Crothers, J., disqualified.