concurring.
[¶ 21] I concur.
[¶22] I write separately to address a situation that seems to be occurring that is concerning. Generally, whether an incarcerated individual is permitted to appear in a civil court proceeding is within the sound discretion of the trial court. Adoption of J.S.P.L., J.J.L., and J.W.L., 532 N.W.2d 653, 658 (N.D. 1995). Our trial courts, however, appear to be issuing orders that permit the incarcerated individual to appear in court so long as the individual makes all necessary arrangements. See Majority Opinion at ¶ 16; Curtiss v. Curtiss, 2016 ND 197, ¶ 9, 886 N.W.2d 565.
[¶ 23] In this case, Narvais requested an order requiring the Department of Corrections to allow for his appearance telephoni-cally. He submitted a proposed order for a one-hour telephonic appearance. In support of the motion for an order requiring his telephonic appearance, Narvais filed a brief which stated, without evidentiary support, that a court order was mandated prior to any interactive television usage or telephonic conference and that, without such an order, the Department of Corrections would exercise discretion whether such testimony was required. The district court’s order states: “Respondent [Nar-vais] has been informed that the North Dakota Department of Correction and Rehabilitation (DOCR) requires a court order with specific, authoritative, or mandatory language directing the DOCR to allow Respondent’s participation in an evidentiary hearing.” The district court denied the request for the order, allowing participation only if Narvais made arrangements. If, as the district court appeared to assume, Narvais’ description of the DOCR policy was accurate, the district court order was either an exercise of discretion to deny Narvais an opportunity to appear tele-phonieally or a delegation of discretion to the warden to decide whether it was necessary to have Narvais appear. The first is permissible under our caselaw. The second is inappropriate. However, the order as issued, both appears to give Narvais the right to appear, if he can make the arrangements, and denies him the right to appear if Narvais has correctly described the applicable policy.
[¶ 24] We have long recognized the policies that should be considered in exercising the discretion whether to permit incarcerated individuals to appear in civil matters:
From our review of cases from the various jurisdictions and the principles of law involved, we are compelled to conclude that a convict does not have a constitutional right to personally appear in a civil suit where he has been permitted to appear through counsel and by deposition, if appropriate. Any right to appear personally would have to rest upon convincing reasons and would ultimately be left to the sound discretion of the trial court.
In making its determination the trial court may take into account the costs and inconvenience of transporting a prisoner from his place of incarceration to the courtroom, any potential danger or security risk which the presence of a particular inmate would pose to the court, the substantiality of the matter at issue, the need for an early determination of the matter, the possibility of delaying trial until the prisoner is released, the probability of success on the merits, the integrity of the correctional system, and the interests of the inmate *753in presenting his testimony in person rather than by deposition. Stone v. Morris, supra [546 F.2d 730] at 735-736 [ (7th Cir.1976) ]; Moeck v. Zajackowski, supra [541 F.2d 177 (7th Cir.1976) ]. The exercise of the trial court’s discretion concerning a prisoner’s right to appear personally in a civil action will not be overturned by this court in the absence of an abuse of that discretion which we have defined as an unreasonable, arbitrary, or unconscionable attitude on the part of the trial court. Wall v. Pennsylvania Life Insurance Co., 274 N.W.2d 208 (N.D. 1979).
Interest of F.H., 283 N.W.2d 202, 209 (N.D. 1979) (citing Stone v. Morris, 546 F.2d 730, 735 (7th Cir. 1976); Moeck v. Zajackowski, 541 F.2d 177, 181 (7th Cir. 1976)).
[¶25] Some of the considerations, such as costs of transportation and danger to the court, will have substantially lessened by the current possibilities of interactive television and telephonic appearances, but a district court must still exercise discretion to determine whether the appearance of the incarcerated litigant is appropriate or necessary. However, issuing ineffective orders that put the credibility of the judicial system at issue do not serve the interests of anyone.
[¶ 26] This record does not disclose whether the statements Narvais asserts about the position of the DOCR are correct. If the warden were exercising discretion regarding the ability of inmates to testify, the warden could be subjected to a civil rights action under 42 U.S.C. § 1983, if that discretion were improperly exercised. See Stone v. Morris, 546 F.2d 730. More importantly for the judicial system, it should be an exercise of sound judicial discretion whether an appearance is necessary and, if it is necessary, given the current means of such appearances, an appropriate order must be issued.
[¶27] Under the circumstances operative in this case, I must assume that the district court exercised its discretion to decide that Narvais’ appearance was not necessary if he did not make the necessary arrangements for his appearance. Therefore, I concur.
[¶ 28] Carol Ronning Kapsner
Lisa Fair McEvers
Daniel J. Crothers