MINUTES OF MEETING
Joint Procedure Committee
January 24-25, 2002
TABLE OF CONTENTS
Adoption of Amendments to N.D.R.Civ.P., N.D.R.App.P., and N.D.R.Ct. 3
Rule 3, N.D.R.Civ.P. - Commencement of Action 3
Rule 4, N.D.R.Civ.P. - Persons Subject to Jurisdiction--Process--Service 4
Rule 23, N.D.R.Civ.P. - Class Actions 4
Rule 7.1(d), N.D.R.Ct. - Judgments, Orders and Decrees 5
Rule 32, N.D.R.App.P. - Form of Briefs, Appendices, and Other Papers 7
Rule 32, N.D.R.Crim.P. - Sentence and Judgment 9
Rule 3.3, N.D.R.Ct. - Change of Judge for Postjudgment Motion or Proceeding 14
Appendix F, N.D.R.Ct. - Alternative Dispute Resolution Statement Form 16
Rule 34, N.D.R.App.P. 34 - Oral Argument 19
CALL TO ORDER
The meeting was called to order at approximately 1:00 p.m., on January 25, 2002, by Justice Dale V. Sandstrom, Chair.
Justice Dale V. Sandstrom
Honorable Bruce E. Bohlman
Honorable Donovan Foughty
Honorable Gail Hagerty
Honorable Ronald L. Hilden
Honorable David W. Nelson
Honorable Thomas J. Schneider
Honorable Mikal Simonson
Mr. Michael R. Hoffman
Mr. John C. Kapsner
Professor Larry Kraft
Mr. Daniel S. Kuntz
Honorable M. Richard Geiger
Honorable Lawrence A. Leclerc
Mr. Ronald H. McLean
Mr. James T. Odegard
Mr. Michael G. Sturdevant
A moment of silence was observed in memory of Gary Raedeke, who served as the Committee's staff attorney from 1992-2001.
Justice Sandstrom expressed thanks to Jim Harris and Tom Tudor who assisted the Committee as interim staff attorneys. Justice Sandstrom also thanked Kim Hoge for her extra work during Mr. Raedeke's illness. Mike Hagburg, new staff attorney, was introduced to the Committee.
Justice Sandstrom reviewed the schedule for the meeting. He invited Committee members to his home for a reception after the Thursday session. The schedule and locations for upcoming Committee meetings were discussed.
Colette Bruggman, Deputy Clerk of the Supreme Court, was welcomed to the meeting.APPROVAL OF MINUTES
Ms. Schmitz MOVED to approve the minutes as distributed. Mr. Kuntz seconded. The motion CARRIED.
Staff reported to the Committee that the Supreme Court approved amendments to N.D.R.Civ.P. 12, 77 and 82; N.D.R.App.P. 42; and N.D.R.Ct. 2.2 and 3.2 as recommended by the Committee in its petition submitted July 5, 2001. The Supreme Court also adopted proposed N.D.R.Civ.P. 37.1 as N.D.R.Civ.P. 39.1. The Court's order approving the amendments and new rule was dated December 6, 2001, and the amendments and new rule are to take effect on March 1, 2002.
Changes made by the Supreme Court to N.D.R.Civ.P. 39.1, as well as changes to other rules impacted by the new N.D.R.Civ.P. 39.1, were discussed.
RULE 3, N.D.R.Civ.P. - COMMENCEMENT OF ACTION (PAGES 46-57 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to N.D.R.Civ.P. 3, reported on comments made by court personnel on the proposed amendments, and discussed legal issues related to the proposed amendments and their interaction with other North Dakota laws and rules. Staff also provided the Committee with additional comments on the proposed amendments received from Clifton Rodenburg and Thomas A. Davies.
Judge Foughty MOVED to adopt the proposed amendments for discussion purposes. Judge Bohlman seconded.
Mr. Rodenburg's comments regarding the proposed amendments were discussed. A Committee member suggested that one way to address the problems collection attorneys might have with the proposed filing requirement would be to require filing of a complaint within one year of service of a responsive pleading. Another Committee member suggested that if the date of filing was to run from the date of service of a responsive pleading, the filing deadline should be shortened to six months. Several Committee members observed that, in collection actions, responsive pleadings are rarely served so such a filing requirement would be unlikely to adversely affect collection actions.
Judge Bohlman MOVED to amend N.D.R.Civ.P. 3 (b) at line 5 to substitute "six" for "twelve" and at line 5-6 to substitute "a responsive pleading" for "the summons." Judge Foughty seconded. The motion CARRIED.
A member commented that proposed amendments constituted a trap for unwary practitioners because failure to file a complaint would void service. The member indicated that requiring complaints to be filed to commence actions would be preferable to the proposals requiring complaints to be filed sometime after service.
A member noted that the Committee had already solved the problem of actions not being filed by amending N.D.R.Civ.P. 4 to include a mechanism to force filing of the complaint. Consequently, any party that wants an action to be filed has a mechanism to make this happen. The member suggested, therefore, that N.D.R.Civ.P. 3 be left alone.
The Committee rejected adopting amended N.D.R.Civ.P. 3 by an overwhelming vote. Staff was instructed to prepare a draft letter to the Public Trust and Confidence Committee explaining the Committee's actions on the proposal to amend N.D.R.Civ.P. 3 and its reasons for rejecting the proposed amendments.
RULE 4, N.D.R.Civ.P. - PERSONS SUBJECT TO JURISDICTION--PROCESS--SERVICE (PAGES 58-69 OF THE AGENDA MATERIAL)
No action was taken on N.D.R.Civ.P. 4 because the proposed amendments to N.D.R.Civ.P. 4 were contingent upon the adoption of the proposed amendments to N.D.R.Civ.P. 3.
RULE 23, N.D.R.Civ.P. - CLASS ACTIONS (PAGES 70-97 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to N.D.R.Civ.P. 23 and discussed legal issues related to "opting out" under the rule.
Ms. Schmitz MOVED to adopt the proposed amendments for discussion purposes.
A member objected to stylistic changes made as part of the proposed amendments, such as the replacement of semicolons with periods. The motion to adopt the proposed amendments was DEFEATED.
A member noted that only North Dakota and Iowa have adopted the Model Class Actions Rule and suggested the Committee consider possible adoption of the Federal Class Actions Rule instead. The member indicated that such adoption of the federal rule would give North Dakota access to a wider variety of helpful interpretive case law.
Mr. Kapsner moved to have staff research differences between the federal rule and N.D.R.Civ.P. 23, prepare a report on the substantive differences, and prepare a version of N.D.R.Civ.P. 23 reflecting the federal rule. Mr. Kuntz seconded. The motion CARRIED unanimously.
RULE 7.1(d), N.D.R.Ct. - JUDGMENTS, ORDERS AND DECREES (PAGES 98-110 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to N.D.R.Ct. 7.1 and discussed the comments on the proposed amendments made by court personnel.
Judge Simonson MOVED to adopt the proposed amendments for discussion purposes. Judge Foughty seconded.
A member commented that a motion procedure was superior to allowing a debtor to obtain satisfaction of judgment by affidavit because notification of the creditor prior to satisfaction would be required. The member noted that allowing a judgment to be satisfied based on an affidavit alone without additional proof of payment would be improper.
Ms. Schmitz MOVED to amend line 39 of the proposed rule to include the words "or proof of payment." Judge Nelson seconded. The motion CARRIED unanimously.
A member noted that if the change was made to line 39, additional changes would need to be made in other parts of the rule. Another member suggested that the satisfaction by affidavit procedure as amended be rejected because it would force the clerks to weigh evidence of proof of payment. A member commented that giving the clerks discretion to accept or reject proof of payment would improperly put the clerks in a quasi-judicial position.
A member indicated that it would eliminate complexity and the problems related to giving the clerks discretion to decide whether to accept proof of payment to simply remove the language allowing clerks to accept proof of payment rather than actual payment. The member stated that the satisfaction motion procedure existed to assist those who had made payment but who had not received satisfaction of judgment.
A member commented that allowing the clerk to enter satisfaction of judgment on receipt of actual payment would be a ministerial act that required no discretion and that the procedure allowing satisfaction of judgment upon receipt of payment and an affidavit should be retained.
Judge Schneider MOVED to reconsider the previous amendment to line 39 to remove the language added. Judge Nelson seconded. The motion CARRIED 13 to 1.
Judge Simonson moved to strike "written" from line 9. Mr. Kuntz seconded. The motion CARRIED.
Without objection, a technical change in the lettering was made on line 53 (change (B) to (C)) and line 57 (change (C) to (D)).
Judge Simonson MOVED to strike "in which the judgment was rendered" from line 28. Mr. Kapsner seconded. The motion was WITHDRAWN.
A member questioned why the word "discharge" was used in line 57 of the proposed rule. Staff explained the language came from the statute from which the amendment was derived.
Judge Simonson MOVED to add language "satisfaction of judgment" to line 57 and strike the word "discharge." Judge Bohlman seconded. The motion was CARRIED unanimously.
A member wondered whether the language of the amended rule would allow debtors to obtain satisfaction of an out-of-state judgment. A member suggested that such a satisfaction of judgment could be obtained under the rule through the satisfaction by motion
process. It was suggested that language in the amended rule, however, might make obtaining satisfaction of an out-of-state judgment difficult.
A member asked how a North Dakota court could know enough about the status of an out-of-state judgment to make a decision about entering satisfaction of judgment. A member explained that the Enforcement of Foreign Judgments Act, N.D.C.C. § 28-20.1-02, applied to such cases.
Mr. Kuntz MOVED to strike the language "in which the judgment was rendered" from line 6. Judge Simonson seconded. The motion CARRIED 9-5.
A member noted that there still appeared to be no mechanism in the rule that would allow a court to enter satisfaction of judgment in cases where a debtor had paid a creditor and the creditor failed to enter satisfaction of judgment. The member suggested that additional language be added to the rule to give courts such power.
Judge Bohlman MOVED to add "or paid" to line 16. Judge Hagerty seconded. The motion CARRIED unanimously.
A member asked whether it would be appropriate to amend the rule to add a procedure whereby creditors could be sanctioned for failing to acknowledge that a judgment has been satisfied. Another member commented that North Dakota statutes already provided protection to debtors and penalties to creditors.
The motion to send the rule as amended to the Supreme Court CARRIED unanimously.
RULE 32, N.D.R.App.P. - FORM OF BRIEFS, APPENDICES, AND OTHER PAPERS (PAGES 111-123 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to N.D.R.App.P. 32 and discussed amendments made at the request of the clerk's office.
Judge Bohlman MOVED to send rule to Supreme Court. Judge Hilden seconded.
A member objected to the stylistic change in the rule under which periods rather than semicolons were used. Without objection, the Committee agreed that semicolons should be used. Staff was instructed to review rules on which amendments are pending and ensure that semicolons rather than periods are used.
A member commented that the requirement for a certificate of compliance on lines 75-76 of the amended rule had not been discussed by the Committee. Staff explained that the requirement for a certificate of compliance came from the federal rule. The clerk's office representative indicated that the clerk's office viewed the signature on the brief as a certification that the brief was in compliance with the rules and that the clerk's office had no position on whether a separate certificate of compliance should also be required. A member commented that requiring a separate certificate of compliance was an unnecessary and complicating requirement.
Mr. Hoffman MOVED to delete the certificate of compliance requirement on lines 75-76 and 122-126. Ms. Moore seconded. Motion CARRIED.
Without objection, a technical change was made to harmonize the internal numbering of the rule to account for the deleted language.
Mr. Kapsner MOVED to add the word "and" to line 69 and strike line 70 language referring to certificate of compliance. Ms. Moore seconded. Motion CARRIED.
Without objection, an identical change was made on line 73-74.
A member commented that the language of the rule as amended seemed to require appendices to be reproduced with one-sided copies when N.D.R.App.P. 30 allows appendices to use two-sided copies in some circumstances. The clerk's representative stated that the clerk's office had no objection to appendices using two-sided copies, regardless of the length of the appendix.
Judge Hagerty MOVED to add language after line 86 allowing for double-sided copies in the appendix. Judge Foughty seconded. Motion CARRIED.
A member stated that action needed to be taken to restore the "safe harbor" provision regarding relying on word processor word count to the rule.
Judge Hagerty MOVED to reinsert lines 122-126 to restore language regarding the "safe harbor" provision. Ms. Schmitz seconded. Without objection, a technical change was made on line 123. Motion CARRIED.
A member commented that the language in the sentence beginning on line 85 and continuing on line 86 regarding informal renumbering was confusing. Several other Committee members agreed. Staff explained that the language tracked the language of the current rule. The clerk's representative indicated that informal renumbering meant that
The Committee discussed alternative language regarding renumbering of pages in the appendix. A member commented that the language regarding informal renumbering was unnecessary.
Mr. Kuntz MOVED to remove the sentence beginning on line 85 and continuing on line 86. Mr. Kapsner seconded. Without objection, a change in the word order was made on line 85. Motion CARRIED.
Motion to include rule as amended in Appellate Rules Package CARRIED.
Mr. Kuntz MOVED to amend N.D.R.App.P. 30 to harmonize with the amendments to N.D.R.App.P. 32 regarding double-sided copies in the appendix. Ms. Moore seconded. Motion CARRIED.
RULE 32, N.D.R.Crim.P. - SENTENCE AND JUDGMENT (PAGES 124-146 OF THE AGENDA MATERIAL)
Staff discussed amendments made by the Supreme Court to N.D.R.Crim.P. 32 at the request of the Attorney General and provided an overview of additional proposed amendments to the rule. The chair explained that the amendments were adopted subject to comment and referred to the Committee because the Supreme Court wanted to obtain the Committee's input.
Ms. Moore MOVED to adopt the proposed amendments for discussion purposes. Judge Hagerty seconded.
A member indicated that the explanatory note as adopted by the Supreme Court seemed clearer than the language in the amended rule prepared by staff. It was suggested that referring to specific federal statutes and regulations in the rule itself might be inappropriate, and that such reference, if made at all, should be in the explanatory note.
Another member commented that the amended rule language referring to developing guidelines appeared to be incorrect. A member indicated that the Attorney General instead was seeking access to presentence reports for use in making sexual offender risk designations.
A member commented that it would be helpful if a representative from the Attorney
General's office could appear before the Committee and explain the Attorney General's reasons for seeking the rule amendment. A member indicated that the Committee needed additional information on how the Attorney General planned to use the presentence reports to which it sought access. It was explained that the Attorney General apparently sought the rule change so it did not have to go to individual courts one-by-one to get presentence report information.
A member stated that on lines 9 through 12 of the amended rule, the stylistic changes proposed seemed to affect the substance of the rule in a manner that could affect attorney/client confidentiality.
Mr. Kuntz MOVED to amend language in lines 9 and 10 to eliminate proposed stylistic amendments. Mr. Kapsner seconded. Motion CARRIED.
A member stated that use of the word "verify" in line 9 of the amended rule as part of the proposed stylistic amendments seemed to place a higher burden on judges than previously.
Judge Simonson MOVED to reinstate "determine" in line 9. Judge Hilden seconded. Motion CARRIED.
Staff was instructed to contact the Attorney General's representative and invite him to attend the Friday Committee meeting. It was also suggested that staff make copies of relevant North Dakota and federal statutes and federal regulations for the Committee's review. Further action on the rule was postponed until Friday's meeting.
The meeting recessed at 4:00 p.m.
January 25, 2002 - Friday
The meeting was called to order at approximately 9:15 a.m., on January 25, 2002, by Justice Dale V. Sandstrom, Chair.
Staff provided an update on upcoming meetings scheduled in April in Fargo and in September in Bismarck.
Mr. Jonathan Byers of the Attorney General's office was welcomed to the meeting.
The Committee continued its discussion of N.D.R.Crim.P. 32.
Mr. Byers explained the rationale of the requested rule changes. He indicated that courts have found that an assignment of a risk level for sexual offenders is required before an offender registration program can withstand constitutional scrutiny. He stated that the North Dakota legislature, in devising a registration statute, had provided a mechanism for sexual offender risk levels to be determined.
Mr. Byers explained that, under new North Dakota law, sexual offenders must be assigned a low, moderate or high risk level and they have the opportunity to challenge the risk level assignment. Because of the change in the law, risk level designations must be determined for the sexual offenders convicted in the past and the subject to North Dakota registration requirements. Mr. Byers indicated that North Dakota officials have developed guidelines and selected tools for making the risk level designations.
Mr. Byers stated that the Attorney General was seeking to access to presentence report information because an offender's presentence report can provide a great deal of factual information that can be used in making a sexual offender risk designation. Mr. Byers indicated that the Attorney General is required by the new statute to obtain records and information about sexual offenders in order to make the required risk designation, and that one of the most logical places to look for such information is in the presentence report. Mr. Byers explained that the Attorney General sought changes in N.D.R.Crim.P. 32 because it restricted access by the Attorney General to information in the presentence reports.
Mr. Byers explained that the Attorney General did not need presentence reports to develop guidelines, as stated in the amended rule, because the guidelines have already been developed. Instead, the Attorney General needs access to presentence reports to assign risk levels to sexual offenders based upon the guidelines that have been developed. Mr. Byers indicated that the Attorney General also needed access to any addendums to presentence reports, which could be such things as psychological reports or victim impact statements, in order to obtain complete information about the offender.
A member noted that N.D.C.C. § 12.1-32-15 (12) divided the duty to perform risk assessments among the Department of Corrections and the Attorney General. The members asked Mr. Byers to explain which offenders the Attorney General would be preparing risk assessments for. Mr. Byers indicated that preparing risk assessments for offenders from out-of-state and those who have completed their sentences would be the job of the Attorney
Mr. Byers explained that, even though N.D.C.C. § 12.1-32-15 (12) seemed to split the duties in preparing risk assessments between the Department of Corrections, the Attorney General, and the Juvenile Courts, these agencies have chosen to cooperate in performing risk assessments rather than working separately. Under an interagency agreement, a joint committee has been formed that does risk assessments for the three entities.
A member explained that the presentence report is a document created by an executive agency under court order and for the use of the judiciary. Another member indicated, however, that the report is also used by the Department of Corrections and is kept by the department. A member questioned why the Attorney General needed access to presentence reports if a joint committee, rather the Attorney General itself, was performing the risk assessments, and if the Department of Corrections already had access to the report. Mr. Byers indicated that the Attorney General believed the language of the unamended N.D.R.Crim.P. 32 prevented joint committee members with access to the presentence reports from discussing or sharing information in the reports with other committee members such as the Attorney General.
A member commented that the Attorney General essentially was asking the Supreme Court to give the Attorney General access to judicial information without express direction from the legislature to provide such information. The member noted that N.D.C.C. § 12.1-32-15 provided no mandate for the adult courts to participate in the sexual offender risk designation process. The member questioned whether the adult courts should be providing such assistance to an executive agency.
A member responded that the courts work with executive agencies regularly, such as when the courts turn offenders over to the Department of Corrections. Another member commented that keeping presentence reports confidential is an exception to the basic premise that all court records are open records. The member commented that the Supreme Court has determined for public policy reasons that presentence report information should be protected; now the Supreme Court has determined for public policy reasons that presentence report information should be available to the Attorney General under certain circumstances. The member expressed some concern, however, that the language giving the Attorney General access to presentence report information was broader than necessary to accomplish public policy goals.
A member proposed that, when courts ordered a presentence report prepared, the officer preparing the report could also be required to prepare a separate risk assessment
report for the Attorney General. Under such a system, there would be no need for the courts to release confidential presentence investigation reports - instead, executive agencies would receive a separate report of their own for use in risk assessment. Another member pointed out, however, that while such a system would be feasible, the problem would still exist of preparing risk assessments for the hundred of existing offenders who had already gone through the court system.
A member indicated that, under the proposed change, the Attorney General would get greater access to presentence reports than the defendant/offender. Another member indicated that courts sometimes restrict access to materials in the presentence report to all parties, but that such restrictions apparently would not apply under the changes requested by the Attorney General. Mr. Byers indicated that presentence reports would not be used to penalize the offender but instead were a tool that would help give the most accurate picture possible of the offender's potential risk to the community.
A member indicated that there were errors in the amended rule at line 66 and lines 146-148 regarding release of presentence reports to develop guidelines. The Committee discussed what language would more properly reflect the Attorney General's role. A member commented that inclusion of the word "guidelines" in the rule was restrictive and seemed to place limits on the Attorney General's potential use of presentence reports.
Mr. Kuntz MOVED to delete the words "developing guidelines in" from line 66. Judge Foughty seconded. Motion CARRIED.
The Committee discussed making a parallel change in the explanatory note at lines 146-148.
Ms. Schmitz MOVED to amend lines 146-148 to delete language referring to developing guidelines and to insert the words "comply with." Judge Schneider seconded. Motion CARRIED.
The Committee discussed whether the proposed rule amendment was too broad. A member expressed concern that presentence reports in cases not involving sexual offenses could be released to the Attorney General under the proposed rule. Mr. Byers explained that the Attorney General was seeking access to presentence reports only to develop risk designations for sexual offenders and that it was not seeking to develop risk designations for any other type of offender.
A member asked which government entity would be deciding which reports to release under the rule. Mr. Byers explained that, in order to deal with the backlog in risk
assessments, parole, probation and penitentiary officials would be releasing the reports directly to the Attorney General.
Mr. Kapsner MOVED to amend line 66 to delete language and to add the words "the individual risk assessment required by." Ms. Schmitz seconded. Motion CARRIED unanimously.
A member expressed concern that if presentence report information is released to the Attorney General for risk designation calculation, persons in the Attorney General's office might have unrestricted access to it. The member suggested that additional restrictions on use of the information be inserted into the rule.
Ms. Schmitz MOVED to insert word "only" in line 65. Mr. Kuntz seconded. Motion CARRIED unanimously.
A member asked whether there was medical and drug and alcohol treatment information interspersed in presentence reports. Mr. Byers said such information would appear in a specific section of the presentence report and that federal law would govern the release of such information. A member indicated that reference to specific federal regulations in the rule would be inappropriate because of ongoing changes in federal law and expansions in federal privacy protections.
Mr. Kapsner MOVED to amend lines 68-70 to remove references to specific federal statutes and regulations and to insert the words "must comply with all applicable state and federal statutes, rules and regulations governing drug and alcohol records and private medical information." Ms. Schmitz seconded.
Judge Nelson MOVED to delete the sentence at lines 67-70 and move the sentence covered by Mr. Kapsner's motion to line 149 in the explanatory note. Judge Foughty seconded. Motion CARRIED unanimously.
Motion to send rule to Supreme Court as an emergency rule CARRIED 13-1.
RULE 3.3, N.D.R.Ct. - CHANGE OF JUDGE FOR POSTJUDGMENT MOTION OR PROCEEDING (PAGES 147-150 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to N.D.R.Ct. 3.3.
A member explained that judges travel to outlying areas of their districts on a rotating
basis. The judges would like to hear all pending child support matters while they are present in the outlying areas, rather than requiring the parties to wait until the judge who made the original decision in the matter is in the area. The member indicated that the requested change to N.D.R.Ct. 3.3 would allow the judge present in the outlying area to handle child support matters pending in that location in a timely manner.
Judge Hagerty MOVED to adopt the proposed amendments for discussion purposes. Mr. Kuntz seconded.
A member asked whether judges in outlying areas are generally asked to address child support enforcement or amendment matters. Another member explained that generally enforcement issues are raised and that many matters are the responsibility of referees, so no judge would necessarily have a particular knowledge of a given case.
A member asked staff why the Committee had rejected such an amendment previously. Staff explained that the minutes were not completely clear, but that it appeared a conflict between the proposed amendment and North Dakota's change of judge laws had been raised.
A member commented that the legislature had been consistently hostile to any measures that allowed parties to have a second judge to rule on a matter that had previously been before a different judge. A member explained that the proposed measure promotes judicial economy by allowing a judge in a given location to decide child support matters in that location rather than requiring a different judge to travel to the location to decide a matter.
A member explained that because child support decisions are based on a formula, a judge's discretion will always be limited in a child support matter and, therefore, having the judge on site decide such matters would not alter the analysis or decision. A member indicated that the proposed amendment would not be a problem in the routine cases, but that it could be a problem in the "nightmare" cases where a given judge has denied a child support motion numerous times and where the party making the motion seeks to take advantage of having a different judge on site.
A member suggested there should be a mechanism in the rule allowing a party to "opt out" of having the judge on site decide a child support matter. Another member noted that if such an "opt out" provision was in place the party opposing amendment or enforcement of a child support order could use the mechanism to delay action.
A member asked staff whether the proposed change could be made consistently with
North Dakota law regarding continuing jurisdiction. Staff explained that it was not completely clear under North Dakota law whether continuing jurisdiction resides solely with the judge who made the initial decision or whether it resides with "the court" in general. It was noted by the Committee that N.D.R.Ct. 3.3 had already superseded N.D.C.C. § 27-05-27, which had imposed a requirement that the original judge in a case hear all subsequent matters in the case. Staff was instructed to inform the code reviser so that the superseding action was noted in the code.
Ms. Schmitz MOVED to add a new sentence beginning on line 14: "If a different judge is assigned to hear the child support matter, either party may object to the reassignment of the case, provided they do so at least 10 days after the date notice of hearing was served on the parties." Judge Simonson seconded.
Several members were concerned that such a change would allow a party more than one chance to demand a change of judge in a case. A member explained that, if a party objected to a reassignment, the matter would have to go back to the original judge - the objection would be to the reassignment itself, not to the judge who was reassigned. A member commented that he was uncertain whether a traveling judge who was assigned to hear a given matter would even be named prior to the hearing.
A member raised the concern that the amendments to N.D.R.Ct. 3.3 were not harmonized with North Dakota statutes regarding judge assignment and changes. The member suggested that staff perform additional research to determine whether the proposed changes were amenable with other North Dakota laws. The member also suggested that staff investigate how the proposed changes might interact with master calendar scheduling.
Judge Hilden MOVED to postpone discussion until the Committee's next meeting with directions to have staff perform additional research and to determine whether the proposed language regarding objections to reassignment could be extended to other parts of the rule. Mr. Kuntz seconded. Motion CARRIED 13-1.
APPENDIX F, N.D.R.Ct. - ALTERNATIVE DISPUTE RESOLUTION STATEMENT FORM (PAGES 151-156 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to N.D.R.Ct., Appendix F.
Judge Hagerty MOVED to adopt the proposed amendments for discussion purposes. Ms. Schmitz seconded.
A member stated that having counsel submit an ADR statement was a good method for the court to gain some information about the case. The member stated, however, that more information was needed from the parties so that ADR could be set up and so that scheduling orders could be prepared.
The member commented that, under the proposed changes, the parties to civil cases would ask to provide the same sort of information that parties to family law cases are already providing. The member stated that if the parties agreed on when scheduling deadlines should be set, the court could issue a scheduling order after receipt of the statement. If the parties did not agree, the court could set a scheduling conference.
A member stated that combining ADR and scheduling information on one form was a good idea for the sake of simplicity and economy.
A member suggested that the proposed changes would require parties to submit an excess amount of information to the court. Another member commented that the requirement to submit the statement within 60 days of filing did not give the parties enough time to realistically consider ADR options and that other scheduling information likewise would not often be available during that timeframe.
A member stated that it was a real problem for courts to handle requests for court sponsored ADR without also having scheduling information to use in attempting to set up such ADR. The member indicated that the ADR statement could be amended to ask parties when they wanted ADR scheduled. The member also suggested that an additional line could be added to the amended statement allowing parties to indicate that scheduling information was not available when the form was submitted and naming a date when scheduling information would be available or when a scheduling conference could be set.
A member indicated a concern that, by requiring the parties to submit scheduling information as part of the required ADR statement, the parties essentially would also be required to submit to a scheduling conference in all cases. A member observed that amending the ADR statement to include scheduling information seemed to be a backdoor attempt to amend N.D.R.Civ.P. 16, which allows for voluntary scheduling conferences.
A member indicated that the scheduling information requested under the proposed amendments to the ADR statement seemed to mirror the scheduling information parties are required to provide in federal cases. The member stated that the federal scheduling system was inflexible and punitive. Another member observed, however, that the federal scheduling system prevented cases from languishing and allowed the parties to better plan their activities on a case, including participation in ADR.
A member commented that there were barriers to implementing a case scheduling and management system in North Dakota, especially since North Dakota does not require filing to commence an action and does not schedule trials until after receipt of a note of issue. The member stated, however, that it would be good to implement some system of case management that allowed parties to prevent cases from languishing. The member indicated that it would be an effective tool to require parties to provide scheduling information with the ADR statement. The member commented that, if parties provided scheduling information with the ADR statement, or engaged in a scheduling conference, it should not be necessary for the parties also to file a note of issue.
A member noted that, in many civil cases, parties cannot provide scheduling information until expert witnesses have been identified and that parties cannot know whether ADR will be acceptable until after the expert witnesses have expressed their opinions. Another member observed, however, that if parties can get together for early ADR, cases can be settled without hiring of experts and marathon depositions.
A member noted that the Committee apparently agreed that additional amendments to the ADR statement were necessary to add items to allow the parties to specify when they desired court sponsored ADR to take place and, if they were not able to provide scheduling information at the time of initial submission of the ADR statement, to specify a later date they could provide such information and/or participate in a scheduling conference. Likewise, it was suggested that there could be a line on the statement indicating that no note of issue needed to be filed if the parties provided scheduling information. Staff was instructed to prepare an amended ADR statement for consideration by the Committee.
A member commented that the discussion highlighted the fact that all the judicial districts in the state handle case scheduling differently. The member indicated that making changes regarding the ADR statement might be a first step, but that additional future steps would be needed to bring about uniformity in case scheduling in the various districts.
A member suggested that N.D.R.Civ.P. 16 be amended to make scheduling conferences mandatory and that the amended ADR statement be used as a tool for such scheduling conferences. A member commented that N.D.R.Civ.P. 16 as it exists gives courts the discretion to require parties to provide the scheduling information included in the amended ADR statement. A member stated that the requirement already exists to have parties submit an ADR statement, and because such a requirement exists, it makes sense (since the courts also need scheduling information) to have the parties provide scheduling information with the ADR statement.
A member suggested that the requirement to submit ADR information within 60 days
of case filing needed to be revisited, and suggested that the ADR statement should be completed as part of a scheduling conference process under N.D.R.Civ.P. 16. A member commented that the 60 day requirement was not necessarily short because much more than 60 days could have passed since the action was initially served. Another member indicated that, since the ADR statement had been in use for less than a year, it would be useful to gather comments from court staff and attorneys on whether the ADR statement was working.
A member stated that the ADR cart was pushing the pretrial horse and this was creating problems. Another member indicated openness to N.D.R.Civ.P. 16 being amended to require that ADR and scheduling information be provided. Thus, N.D.R.Civ.P. 16 would drive the process. Under such an amendment, there could be a reference back to N.D.R.Civ.P. 16 from the ADR rule and a form that was tied to N.D.R.Civ.P. 16. Staff was instructed to prepare an alternative amendment to N.D.R.Civ.P. 16.
Mr. Kapsner MOVED to postpone discussion until the Committee's next meeting with instructions for staff to conduct additional research and prepare additional amendments consistent with the Committee's discussion. Mr. Kuntz seconded. Motion CARRIED.
RULE 34, N.D.R.App.P. 34 - ORAL ARGUMENT (PAGES 157-163 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to N.D.R.App.P. 34. Staff explained that alternative versions of N.D.R.App.P. 34 had been presented because of concerns expressed by the clerk's office about adopting language from the federal rules on oral argument.
Ms. Bruggman explained that N.D.R.App.P. 34 does not currently provide a means for the Supreme Court to forgo oral argument. Ms. Bruggman said that the clerk's office understood the need for a vehicle in the rules that allowed flexibility in oral argument, but that the clerk's office did not support the federal wording of the oral argument rule because it seemed based on an assumption that there was an underlying right to oral argument.
Ms. Bruggman indicated that the clerk's office did not recognize the existence of a "right" to oral argument and that under the policies of the clerk's office oral argument could be canceled for a number of reasons. Ms. Bruggman said that the clerk's office was in favor of a mechanism for the justices to deem oral argument unnecessary in certain cases. Ms. Bruggman explained, however, that if such a mechanism was put in place, there would need to be adjustments made to other rules so that the justices could get enough information to make timely decisions on whether to allow oral argument.
The chair explained that the Supreme Court's practice is to set every case for oral argument. The chair explained that the Supreme Court was considering changing this practice as a way of dealing with repetitive, frivolous appeals and appeals in which no genuine legal issues are raised. The chair also indicated that some parties seemed to rely too heavily on oral argument and failed to provide an adequate explanation of their position in their briefs.
A member commented that if the Supreme Court did not want oral argument in a given case, perhaps the summary disposition rule would give the Court a mechanism to forgo oral argument. The member expressed concern that the wording of the amended rule would make it too easy for the Court to cancel oral argument based on potentially hasty conclusions that the issues were dealt with adequately in the briefs. The member said the Committee needed more information about who would be making such conclusions.
A member commented that the main purpose of oral argument as it has developed in North Dakota is to answer the Supreme Court's questions and that, without oral argument, questions could be left unanswered in a case.
A member commented that there may be cases in which the parties would be willing to waive oral argument, but that the language of the rules seems to suggest the Supreme Court expects oral argument in every case. The member indicated that there did not seem to be a mechanism for the parties to waive oral argument.
The chair asked the Committee to consider whether oral argument should be the norm. Ms. Bruggman indicated that the clerk's office and the Supreme Court had real questions regarding whether the Court should have to hear from the same party several times on the same issue. The chair explained that requiring oral argument in some cases placed a genuine burden on the parties, especially those not resident in Bismarck.
Several Committee members suggested that the means by which a party can waive oral argument should be clearer. It was noted that, under the federal system, the parties are required to indicate whether they request oral argument. A member indicated that, if the rules required the parties to make such a request, this could be a starting point for the Supreme Court's analysis of whether to grant oral argument in a case.
A member gave an opinion that oral argument should be the norm, but that perhaps the form of oral argument needs to be changed to reflect changed times. The member indicated that the time constraints currently imposed on oral argument are artificial and are not helpful given the fact that oral argument, in practice, is primarily a means for the justices
to get answers to questions.
No action was taken on the proposed amendments and alternative draft. The chair explained that his intent was to have a general discussion of issues related to N.D.R.App.P. 34 before taking action upon it at a future meeting.
The meeting adjourned at approximately 12:00 noon.
Michael J. Hagburg