MINUTES OF MEETING
Joint Procedure Committee May 6-7, 1999
TABLE OF CONTENTS
Rule 11.1, N.D.R.Ct. - Nonresident Attorneys 2
Alternative Dispute Resolution 7
Rule 6.11, N.D.R.Ct. - Predeliberation Discussion By Jurors 11
Last Minute Settlements and Plea Changes 14
N.D. Sup. Ct. Admin. R. 13- Judicial Referees 14
Technical Amendments 15
N.D.R.Local Ct. P.R. § 10- Effective Term of Local Court Rules 16
Rule 31, N.D.R.Crim.P. - Verdict 16
Rule 33, N.D.R.Crim.P. - New Trial 17
Rule 615, N.D.R.Ev. - Exclusion of Witnesses 18
CALL TO ORDER
The meeting was called to order at approximately 1:30 p.m., May 6, 1999, by Justice Dale V. Sandstrom, Chair.
Justice Dale V. Sandstrom
Honorable Donovan Foughty
Honorable Richard M. Geiger
Honorable Gail Hagerty (5/7/99 only)
Honorable Ronald L. Hilden
Honorable Maurice R. Hunke
Honorable Lawrence A. Leclerc
Honorable David W. Nelson
Honorable Mikal Simonson
Mr. Lynn M. Boughey
Mr. Michael R. Hoffman
Mr. John C. Kapsner
Mr. Daniel S. Kuntz (5/6/99 only)
Mr. Ronald H. McLean (5/7/99 only)
Ms. Sherry Mills Moore
Mr. James T. Odegard
Ms. Cathy Howe Schmitz
Honorable Kirk Smith
Professor Larry Kraft
Ms. Patricia R. Monson
Mr. Gerhard Raedeke
The Committee was informed meetings are scheduled for September 23-24, 1999; January 27-28, 2000; and April 27-28, 2000.
APPROVAL OF MINUTES (PAGES 1-16 OF THE AGENDA MATERIAL)
Mr. Odegard MOVED to adopt the minutes with technical corrections. Judge Hunke seconded. The motion CARRIED.
RULE 11.1, N.D.R.Ct. - NONRESIDENT ATTORNEYS (PAGES 17-22 OF THE AGENDA MATERIAL)
At the last meeting, by a two-thirds vote, the Committee approved amendments to N.D.R.Ct. 11.1 in response to a request from the State Bar Board.. The amendment provides a motion procedure which must be followed for a nonresident attorney to appear in a North Dakota state court proceeding. At the last meeting, the Committee asked for the rule to come back to this meeting with additional changes to the Explanatory Note. The Committee wanted the Explanatory Note amended to define what constitutes an appearance.
Since the last meeting, additional changes have been made to the Explanatory Note and the rule to accommodate the changes to the Explanatory Note. An amendment to the Explanatory Note clarifies an appearance is not limited to actual physical presence in a court proceeding. An attorney also makes an appearance by signing or otherwise being designated as counsel on a pleading. Additional amendments are made to the rule to give an attorney time to obtain permission to appear. The amendment gives a nonresident attorney 45 days to file a motion requesting permission to appear after being designated as counsel on a pleading.
Since the last meeting, the State Bar Board has requested additional amendments to the rule. The Board is asking for the rule to be amended to require a nonresident attorney to state by affidavit the number of actions in which the nonresident attorney has appeared in a North Dakota state court proceeding during the prior three years. An amendment also makes it clear, a nonresident attorney may only be permitted to appear in an occasional action. The State Bar Board requested the additional amendments to limit the number of times a nonresident attorney may appear in North Dakota without obtaining a license.
Mr. Kuntz MOVED to adopt the proposal as submitted on pages 20-22. Judge Geiger seconded.
On lines 41-42, the Committee questioned the meaning of the sentence: "A nonresident attorney may only be permitted to appear in an occasional action." It was explained, the purpose of the sentence is to limit the number of appearances made by a nonresident attorney. The proposed language would leave it to the judge's discretion as to whether the nonresident attorney is appearing more than occasionally.
Judge Geiger MOVED to amend lines 41-42 as follows: "A nonresident attorney may only be permitted to appear
in an occasional action occasionally in an action." Committee members stated, the motion gives the appearance an attorney can only appear sometimes in a given action. The motion failed for lack of a second.
The Committee noted Admission to Practice R. 3 provides nonresident attorneys "may occasionally be permitted to appear. . . ." Committee members stated, Admission to Practice R. 3 and N.D.R.Ct. 11.1 should use consistent language. Mr. Kapsner MOVED to amend subdivision (a)(1) on lines 6-8 as follows:
A nonresident attorney admitted and licensed to practice law in a foreign jurisdiction, but not licensed to practice law in the state of North Dakota, may appear in a North Dakota state trial court proceeding only if the attorney first:
An attorney admitted and licensed to practice law in another state or the District of Columbia, but not licensed in North Dakota, may occasionally be permitted to appear as counsel in a proceeding in a court of this state if the attorney; . . ."
Judge Leclerc seconded.
Committee members stated, the amendment would prevent an attorney from a foreign country from appearing as counsel in a North Dakota state court proceeding. The Committee noted, currently N.D.R.Ct. 11.1 allows an attorney from a foreign country to appear in a North Dakota state court proceeding. Currently, Admission to Practice R. 3 does not provide for an appearance by an attorney from a foreign country in a North Dakota state court proceeding.
The Committee noted, the proposal from the State Bar Board prevents an attorney who is living in North Dakota but licensed in another jurisdiction from making an occasional appearance in a North Dakota state court proceeding. It was explained, the intent is to prevent an attorney from living in North Dakota and practicing law in North Dakota without being licensed. Committee members stated, residence is not the critical factor. The critical factor is whether the person is licensed. There is no reason to encourage the attorney to live in Moorhead instead of Fargo.
Committee members stated, the proposed amendment does not limit subdivision (a) to "trial" court proceedings. Subdivision (e) addresses appeal. Mr. Kuntz MOVED to amend the amendment as follows: "An attorney admitted and licensed to practice law in another state or the District of Columbia, but not licensed in North Dakota, may occasionally be permitted to appear as counsel in a proceeding in a trial court of this state if the attorney; . . ." Mr. Boughey seconded. The motion to amend the amendment CARRIED by a vote of 11 to 3.
The Committee voted on Mr. Kapsner's motion to amend subdivision (a)(1) on lines 6-8. The motion CARRIED by a vote of 14 to 0. By unanimous consent, the Committee deleted the sentence on lines 41-42 which provides as follows: "
A nonresident attorney may only be permitted to appear in an occasional action."
Committee members stated, the object of the rule should be to regulate appearances by attorneys licensed in other jurisdictions. The rule should not be addressing residency.
Mr. Hoffman MOVED to change the title of the rule as follows: "RULE 11.1
NONRESIDENT ATTORNEYS NOT LICENSED IN NORTH DAKOTA." Mr. Kapsner seconded. The motion unanimously CARRIED. The Committee unanimously agreed to eliminate the word "nonresident" throughout the rule.
Committee members questioned whether the language in subdivision (a)(2) conflicts with Rule 3. Members stated the purpose of the language in the two rules is slightly different. Rule 11.1 is simply requesting disclosure in an affidavit. N.D.R.Ct. 11.1 does not contain prohibitions as to who may not make an appearance as does Admission to Practice R. 3.
Committee members commented, the revenue raising feature of proposed N.D.R.Ct. 11.1 is the requirement for attorneys to submit a $100 fee for signing a pleading. Some cases will have numerous attorneys involved as corporate counsel and co-counsel. One case may potentially require 50 lawyers to remit a $100 fee to the State Bar Board.
Committee members cautioned, the potential consequences of the proposal to North Dakota attorneys who appear in Minnesota needs to be considered. Minnesota may retaliate. There are a lot more North Dakota border lawyers appearing in Minnesota than Minnesota border lawyers appearing in North Dakota. The Committee expressed concern about Minneapolis attorneys appearing in North Dakota and the need for them to contribute to the attorney disciplinary system.
Committee members questioned the appropriateness of using N.D.R.Ct. 11.1 as a revenue raiser. Others said, some kind of court involvement is needed for the State Bar Board to have a mechanism for raising funds. Attorneys not licensed in North Dakota should also participate in the cost of funding North Dakota's attorney disciplinary system. Several judge members commented, the proposal will create work and make judges revenue raisers for the State Bar Board.
The Committee questioned the authority for using a court rule to raise revenue. Does the Supreme Court have authority to assess fees?
Committee member argued, N.D. Const. art. VI, § 3 gives the Supreme Court the authority "to promulgate rules and regulations for the admission to practice, conduct, disciplining, and disarmament of attorneys at law." Other members stated, there is a difference between the power to promulgate rules and the power to assess fees. Still others noted, the legislature has provided for the State Bar Association to establish fees, not in excess of $400, for an annual license. See N.D.C.C. § 27-11-22. Members stated the
legislature will not appropriate money for the discipline of lawyers not licenced in North Dakota.
On page 21, line 27, the Committee unanimously agreed to change the reference to paragraph (2) and (3) to (1) and (2). Judge Geiger MOVED to delete lines 27-31 as follows:
(3) The requirements of paragraph (1) and (2) of this subdivision also apply to a nonresident attorney who signs or is designated as counsel on a pleading, motion, or other paper, except the attorney does not need to first file the motion and obtain permission from the court. The motion requesting permission to appear must be filed no later than 45 days after service of the pleading, motion, or other paper."
Ms. Schmitz seconded.
Committee members argued, removing lines 27-31 removes the significant revenue raising portion of the rule. Attorneys who appear by signing or being designated on a pleading should be covered by the rule. The provision is also needed to give an attorney time after service of the pleading to file a motion to request permission to appear.
Committee members voted on the motion to delete lines 27-31. The motion FAILED by a vote of 2 to 12.
Mr. Odegard MOVED to amend line 15 and 16 as follows:
(D) either remits a $100 fee to the State Bar Board or certifies the attorney has paid a $100 fee to the State Bar Board during that calendar year
,or is licensed in a jurisdiction that permits a North Dakota licensed attorney to appear without payment of a fee; and . . . ."
Mr. Schmitz seconded.
Committee members stated it is unfair to charge Minnesota attorneys to appear in a North Dakota court proceeding. Minnesota does not charge North Dakota attorneys to appear in a Minnesota court proceeding. The Committee again expressed concern, Minnesota might retaliate. Minnesota allows an attorney not licensed in Minnesota to appear if "the state in which the attorney is licensed to practice law likewise grants permission to members of the State Bar of Minnesota. . . ." See MSA § 481.02.
Mr. Odegard's motion CARRIED by a vote of 13 to 1.
Committee members suggested, the proposal should be sent back to the State Bar Board for additional review because of the extensive changes made by the Joint Procedure Committee. Other members questioned the fiscal impact of not collecting the potential fees by delaying adoption of this proposal.
The Committee noted if the proposal is not included in its annual rules package which will be submitted to the Supreme Court after this meeting, there will be a delay of one year. Committee members did not think the State Bar Board would want to delay a year. Committee members thought it would be more appropriate to submit the proposal to the Supreme Court. The State Bar Board would still have the opportunity to review the proposal and give its recommendation to the Supreme Court.
The Committee voted on whether to approve Rule 11.1 as amended by the Committee. The motion CARRIED by a vote of 14 to 0. N.D.R.Ct. 11.1 is to be submitted to the Supreme Court for adoption as amended at this meeting.
Judge Hunke MOVED to adopt the Explanatory Note. By unanimous agreement, the Committee changed the order of the Explanatory Note by inserting lines 70-73 before the paragraph beginning on line 60. The Committee unanimously agreed to the following amendment on lines 70-71: "N.D.R.Ct. 11.1 is limited to an appearance in a North Dakota state
trial court proceeding." By unanimous agreement, the Committee deleted the word "nonresident" on line 64. Judge Hunke's motion to adopt the Explanatory Note CARRIED by a vote of 14 to 0.
Judge Geiger moved to rescind the action taken by the Committee at this meeting. Mr. Odegard seconded. The Chair stated a two-thirds vote is required for the motion to pass. The motion FAILED by a vote of 6 to 8.
ALTERNATIVE DISPUTE RESOLUTION (PAGES 23-95 OF THE AGENDA MATERIAL)
At the last meeting Mr. McLean's motion to amend N.D.R.Civ.P. 16 was postponed until this meeting. The proposal on pages 25-27 contains the drafts the Committee was working with at the last meeting.
The amendment provides for discussion at a pretrial conference of the desirability of using an alternative dispute resolution process. The amendment simply gives recognition to ADR processes. McLean's motion CARRIED by a vote of 14 to 0.
At the last meeting, the Committee considered and rejected a proposal providing for a roster of neutrals patterned after Minn. Gen. R. Prac. 114.02, and 114.12 and 114.13. The Committee thought the proposal was overly compartmentalized and too technical for North Dakota's needs. The Committee then postponed consideration of a rule providing for a roster until this meeting. Staff was to follow up on the issues raised during the last meeting and consolidate N.D. Sup. Ct. Admin. R. 28 into a proposal for the Committee's consideration.
The Committee reviewed provisions from other states providing for a roster of ADR providers. The Committee noted, the training is generally approved by the Supreme Court, the State Bar Association, or a special commission or a committee. In Minnesota, the Supreme Court Office of Continuing Education certifies the training programs.
The Committee reviewed material from Erickson Mediation Institute. In May, the Institute is conducting a 40-hour divorce mediation course in North Dakota. The Committee also reviewed comments from the University of North Dakota Conflict Resolution Center and Kristine Paranica. The Conflict Resolution Center also conducts a 40-hour divorce mediation course in North Dakota. The Committee noted, the training provided by the Conflict Resolution Center and Erickson Mediation Institute may not comply with the proposed requirements in the material for listing on a roster.
On page 88 of the material, the Committee reviewed the recommendations of SBAND's Alternative Dispute Resolution Committee. On page 91, the Committee reviewed proposed N.D.R.Ct. 8.8 which contains the recommendations of the Alternative Dispute Resolution Committee. The proposal provides for the State Court Administrator to provide a roster of neutrals for civil arbitration, civil mediation, and domestic relations/contested child proceedings mediation. It was explained, the bracketed material in the proposal is meant to flag issues needing to be addressed by the Committee.
Judge Geiger MOVED to recommend adoption of N.D.R.Ct. 8.8 to the Supreme Court and for the repeal of Admin. R. 28. Ms. Schmitz seconded.
The Committee discussed whether there should be a civil arbitrator roster. The Committee noted the ADR Committee's recommendation that there should not be a roster for civil arbitrators if the only requirement is for the arbitrator to provide in writing the arbitrator's qualifications. The Committee thought the ADR Committee's alternative
recommendation for 30 hours of training for listing an arbitrator on a roster is excessive. The Committee noted Minnesota and the original proposal from Dispute Resolution Committee only requires 6 hours of training for an arbitrator. Mr. Kuntz MOVED to amend line 17 to require an arbitrator to complete 6 hours of training for listing on a civil arbitrator roster. Ms. Moore seconded. The motion CARRIED by a vote of 12 to 1.
Committee members stated, they were uncomfortable with the idea of providing for a roster by rule. The parties need to look at the qualifications, background, and experience of the particular ADR provider rather than the hours of training. Training is not going to be the determinative factor for determining whether an attorney is a good ADR provider for a particular case. A judicial rule providing qualifications for listing on a roster does not accomplish anything better than what the private sector can do through market and selection processes. The qualifications provide no guarantee of quality.
Committee members expressed concern about who would approve and monitor the trainers and training programs. Committee members noted other states have rosters because their court systems are clogged. People cannot get their cases tried. Committee members stated, it is a fiction to say we are over tried with jury trials in the state of North Dakota.
Committee members stated, ADR trainers are already selling a product. The judiciary should not intervene and dictate the product. The people providing ADR training are in competition. Providers of ADR training should police themselves rather than having the judicial system supervise their training.
Judge Leclerc MOVED to indefinitely postpone consideration of proposed N.D.R.Ct. 8.8. Judge Geiger seconded. In other areas like contract law and tort law, the field has already been preempted. There is no longer a need to mandate qualifications for mediators. It is not the role of the judiciary.
Committee members stated, there is a need for ADR in domestic cases. Committee members stated for mediation to work in domestic relations cases it needs to be part of the court system. The problem is that in domestic relations cases, the parties cannot afford to pay the cost of mediation. Money is needed from the legislature. Adoption of a rule providing for a roster would create a second class system of mediation. The Committee should not adopt less than what it desirable.
The motion to indefinitely postpone CARRIED by a vote of 11 to 3.
The Committee discussed what it should report back to the Supreme Court.
Committee members stated, they would like to encourage study of court annexed mediation. The Supreme Court should be informed of the potential need for court annexed mediation in domestic relations cases. Mediators should be judicial employees. Mediation needs to be provided at little or no charge to the litigants, so the costs of litigation is not increased for the litigants. Others said obtaining funding from the legislature for mediation will be difficult.
The Committee noted, family law mediation pilot projects are currently underway which provide for mandatory mediation orientation. The Committee also noted under N.D.R.Ct. 8.5 a domestic relations summary proceeding procedure is being tested. The procedure is similar to small claims court procedures. Finally, the Committee noted the Northeast Central Judicial District in Grand Forks is using N.D.R.Ct. 8.3 case management to provide for mediation in domestic relations cases.
Judge Simonson MOVED to recommend to the Supreme Court that court annexed mediation in domestic relations cases be studied by the Court Services Administration Committee, and for the recommendations of the Court Services Administration Committee to come back to the Joint Procedure Committee for amendments to the rules of procedure to accommodate the recommendation. Judge Geiger seconded the motion.
The Committee noted, the Court Services Administration Committee is responsible for the administrative supervision of the judicial system. Other members stated, the Family Law Task Force should look at the issue of court annexed mediation as it pertains to domestic relations cases. Others said the proposal should not go to the Family Task Law Force because eventually court annexed mediation should apply to other types of civil litigation. Still others said, the Supreme Court will decide where it wants to send the issue of court annexed mediation for study.
Judge Geiger MOVED to amend the motion by changing "Court Services Administration Committee" to "appropriate committee or task force." Judge Foughty seconded. The motion to amend CARRIED by a vote of 14 to 0.
Mr. Kapsner MOVED to strike "domestic relations cases" from the motion. He argued domestic relations cases maybe the main focus now, but the study should not be limited to domestic relations cases. Eventually court annexed mediation should apply to other types of civil litigation. Judge Nelson seconded. The motion FAILED by a vote of 3 to 11.
The question was called on the main motion to recommend to the Supreme Court that it refer the study of court annexed mediation in domestic relations cases to the appropriate committee or task force with the understanding procedural changes are to come back to the Joint Procedure Committee. The motion CARRIED by a vote of 14 to 0.
The Committee recessed at approximately 5:00 p.m.
May 7, 1999 - Friday
The Committee reconvened at approximately 9:00 a.m.
RULE 6.11, N.D.R.Ct. - PREDELIBERATION DISCUSSION BY JURORS (PAGES 96-153 OF THE AGENDA MATERIAL)
The Committee considered proposed N.D.R.Ct. 6.11. The proposal gives the court discretion to allow predeliberation discussion in civil cases, but prohibits predeliberation discussion in criminal cases. The proposal contain an admonishment for civil discussion juries, civil no discussion juries, and juries in criminal cases.
The Committee reviewed the pros and cons of predeliberation discussion. Arguments in favor of predeliberation discussion include the following: 1) the educational model of learning indicates discussion facilities learning and understanding of the evidence; 2) the system needs to recognize reality - jurors talk; 3) allowing discussion by rule would provide structure for discussions already taking place; 4) allowing discussion by rule would prevent the bad citizen juror from doing all the talking and would prevent the bad citizen juror from having undue influence; 5) humans are not capable of detached information processing; 6) tentative opinions need to be discussed for exposure to different perspectives or the opinions will become too narrowly focused and conclusive; 7) because the jury hears from one side first, the evidence needs to be discussed right away to prevent narrowly focused conclusions from being drawn; 8) the jury system is premised on the assumption that more heads are better than one; 9) allowing discussion will provide an outlet for juror stress and increase jury satisfaction; 10) jurors like predeliberation discussion; and 11) predeliberation discussion does not cause premature decision making.
Arguments against predeliberation discussion include the following: 1) allowing jurors to express their views will cause them to view the evidence from a prospective reinstating their views; because once a person states an opinion, its harder to change that opinion; 2) allowing jury discussion will increase the influence of the bad juror; because
currently, the bad juror who is not following the court's instructions will be ostracized and the influence of that juror lessened; 3) predeliberation discussion will allow the bad juror to dominate the discussions and have undue influence on views of others; 4) predeliberation discussion is unfair to the defense because the plaintiff's evidence will become entrenched through discussion, and in a classroom the plaintiff's evidence is not presented first; 5) predeliberation discussion will produce conflicts and increase juror stress; 6) our system of trial by jury is so fundamental and too entrenched in history to be changed without substantial evidence of a need for change; and 7) the findings of the Arizona research are not sufficient to justify a change.
Committee members questioned whether the proposal is a new rule requiring approval by a two-thirds vote according to Committee rule. Others said the basic substance of the proposal is still the same as the proposal previously approved, and so only a majority vote is required. The Chair suggested only a majority vote would be required for approval of the proposal unless the majority of the Committee felt otherwise.
Ms. Schmitz MOVED to approve proposed N.D.R.Ct. 6.11 to allow predeliberation discussion by jurors. Mr. McLean seconded.
Committee members expressed concern as to when the jurors would have time for predeliberation discussion. The fifteen minute morning and afternoon recess only gives the jurors enough time for a coffee and bathroom break. Committee members stated, predeliberation discussion should only be allowed in long complicated cases. In those cases, discussion would be helpful and there would be time.
Committee members argued if predeliberation discussion is allowed, the initial tentative opinions of jurors will be solidified. Juror discussion could poison the jury if jurors are initially led wrongly by other jurors.
By unanimous agreement, the Committee amended lines 5-6 on page 152 as follows: "In a civil case, the court
has discretion to may allow the jury to engage in predeliberation discussion."
On page 151a, the Committee reviewed a letter from the SBAND Board of Governors. In the letter, the Board requests the Committee to amend the rule to allow juror predeliberation discussion only if both counsel consent.
Mr. Kapsner MOVED to amend lines 5-6 as follows: "In a civil case, the court may, with consent of all parties, allow the jury to engage in predeliberation discussion." Judge
Geiger seconded the motion. The amendment would allow experimentation with predeliberation discussion by those who are in favor of the reform. The amendment would allow predeliberation discussion in lengthy complicated trials where the reform might to helpful. Other Committee members said, the decision whether to allow predeliberation discussion should only be the judge's decision. The Committee voted on Mr. Kapsner's motion to amend. The motion CARRIED by a vote of 11 to 4.
The Committee noted, the proposal supersedes the statutes which currently require a judge to admonish the jury not to discuss the case before deliberations. The proposal also deletes the provisions in the statutes providing for the care of the jury during recess or an adjournment.
Committee members suggested, the Explanatory Note should indicate that time should be set aside for discussion if predeliberation discussion is allowed. Jurors will be very disappointed if they are told they can discuss the evidence and are not given time for discussion. Committee members suggested in complicated cases, the judge could set time aside for discussion.
Without objection, the Committee amended the Explanatory Note as follows: "Rule 6.11 was adopted, effective __________________________, to
give a court discretion permit a court, with consent of all parties, to allow predeliberation discussion by jurors in a civil case."
Committee members expressed concern about the alternate juror being allowed to participate in predeliberation discussion if the alternate juror does not participate in final deliberations. For a nonmember of the jury to participate would be like the bailiff participating in discussions with the jury before deliberations. Members stated, principal jurors will also take part in predeliberation discussion who may subsequently be excused from the jury and not participate in deliberations. Others stated if everyone agrees to allow predeliberation discussion as proposed in N.D.R.Ct. 6.11, there is no cause for complaint.
Committee members stated, jurors are already engaging in discussion before deliberation. The proposal would allow the court to control and give structure to the discussions already occurring. Predeliberation discussion will also assist the jury in asking a question if the jury is confused.
The Committee voted on the motion to submit proposed N.D.R.Ct. 6.11 to the Supreme Court for adoption. The motion CARRIED by a vote of 11 to 4.
LAST MINUTE SETTLEMENTS AND PLEA CHANGES (PAGES 154-167 OF THE AGENDA MATERIAL)
The Committee considered a letter from Judge Vukelic regarding the problems caused by last minute settlements and plea changes. Comments from Judge Dill were also reviewed. The Committee considered whether a rule should be adopted providing authority for a judge to assess costs when the parties do not immediately notify the court when an action is disposed of by settlement or a change of plea..
Judge Hunke MOVED to indefinitely table all of the alternative proposals. Judge Leclerc seconded.
Judges on the Committee stated they already have plenty of authority to be autocratic. There are better ways to manage caseloads than charging attorneys. With good case management there is less need for the rule. More settlements can be obtained in advance.
In addition, the problem is never going to go away completely. Last minute settlements are an inherent part of the process. Clients settle at the last minute when directly confronted with the pressure of a trial. Lawyers should not be punished for the human nature of their clients. Committee members noted, sometimes cases settle for good reason right before trial or during the trial. The proposals will have a chilling effect on settlements that might otherwise be obtained.
The Committee voted on the motion to indefinitely postpone consideration of the proposals. The Motion CARRIED by a vote of 11 to 0. One member abstained from voting.
N.D. SUP. Ct. ADMIN. R. 13 - JUDICIAL REFEREES (PAGES 168-175 OF THE AGENDA MATERIAL)
The Committee considered a request from the Counsel of Presiding Judges to eliminate the requirement in N.D. Sup. Ct. Admin. R. 13 for a district court judge to confirm, modify, or reject the findings and recommendations of the judicial referee in a written order of the court. Under the proposed amendment, instead of making recommendations, the judicial referee will issue an order. If a party requests judicial review, a judge will be required to conduct a review of the record.
Judge Leclerc MOVED to adopt the proposal on pages 171-175 of the agenda material. Judge Simonson seconded.
Committee members explained, under the present rule, recommendations of a judicial referee do not constitute an order of the court until confirmed by the court. The step of confirming recommendations creates meaningless paper work. In addition, the rule is unclear as to what a judge must consider when confirming a judicial referee's findings and recommendations. A review of the record is only required if requested by the parties.
Under the proposal, the parties will still be able to request a review of the record if needed. Thus the parties will still have an opportunity for meaningful review, but the need for judges to sign off on the recommendations of judicial referees will be eliminated.
A judge member stated he signs off on 65 to 70 recommendations of the judicial referee a week. A lot of paper work is created by AR 13's current requirements.
The Committee questioned whether a judicial referee has the authority to issue an order. The Committee noted, N.D. Sup. Ct. Admin. R. 13(5)(b) gives a judicial referee the authority of a district court judge as is necessary to carry out the delegated duties.
The Committee questioned whether someone who violates an order of a judicial referee can be held in contempt of court. The Committee noted, N.D. Sup. Ct. Admin. R. 13(5)(b) gives a judicial referee the power to impose remedial sanctions for contempt of court. Section 27-10-01.2, N.D.C.C., also provides for contempt of court as a remedy in matters involving a judicial referee.
The Committee voted on the motion to adopt proposed Rule 13. The motion CARRIED by a vote of 12 to 0.
TECHNICAL AMENDMENTS (PAGES 176-181 OF THE AGENDA MATERIAL)
The Committee considered the proposed amendment to the Explanatory Note to N.D.R.Ev. 603 on pages 177-178. The amendment deletes the reference in the Explanatory Note to N.D.R.Civ.P. 43, because the provision being referred to is now in the new rule on courtroom oaths, N.D.R.Ct. 6.10, instead of Rule 43. In addition, the reference to N.D.C.C. § 31-01-22 is deleted because the statute was superseded by Rule 43.
Judge Leclerc MOVED to approve the changes to Rule 603. Judge Hunke seconded. Without objection, the Committee agreed to delete lines 12-13 as follows: "
This rule makes no change in present North Dakota practice." The sentence is no longer necessary. Judge Hunke seconded. The motion CARRIED by a vote of 13 to 0.
Ms. Schmitz MOVED to adopt the proposed amendment to N.D.R.Ct. 11.2 on pages 180-181. Judge Leclerc seconded. The amendments are stylistic. The amendment eliminates the use of a plural pronoun to modify a singular antecedent. The amendments also avoid the use of gender-based pronouns. The motion CARRIED by vote of 13 to 0.
N.D.R. LOCAL Ct. P.R. § 10 - EFFECTIVE TERM OF LOCAL COURT RULES (PAGES 182-183 OF THE AGENDA MATERIAL)
Currently, under N.D.R. Local Ct. P.R. § 10, a local rule of court remains in effect for a period of five years unless otherwise ordered by the presiding judge. On page 183, the proposed amendment prevents a local court rule governing case assignment procedures from expiring. Judge Geiger MOVED to adopt the proposal. Judge Leclerc seconded.
The Committee questioned why a local court rule expires after a period of five years. It was suggested, the provision for a local rule to only remain in effect for five years provides a mechanism for ensuring the districts keep local rules up to date. The Committee noted, case assignment rules are addressed by local rule, because the substance of the rule is determined by how the particular district is setup.
Judge Simonson MOVED to amend the proposal by deleting lines 11-13 as follows: "
10.2 Upon the expiration of any Local Court Rule, the Rule lapses and is void. The l apse of any Rule does not revive any superseded Rule." The language is inconsistent with the amendment and is stating the obvious. The motion to amend CARRIED by a vote of 12 to 1. The Committee voted on the question whether to adopt N.D.R. Local Ct. P.R. § 10 as amended. The motion CARRIED by a vote of 13 to 0.
RULE 31, N.D.R.Crim.P. - VERDICT (PAGES 184-192 OF THE AGENDA MATERIAL)
Rule 31(d), Fed.R.Crim.P., was amended effective December 1, 1998, to require jurors to be polled individually when polling is requested. Rule 31(d), N.D.R.Crim.P., is patterned after the federal rule. Like the former federal rule, North Dakota's rule is unclear whether polling is to be done collectively or individually. The Committee considered whether to amend North Dakota's rule as proposed on pages 187-192 to follow the federal rule. The other changes are stylistic.
Ms. Schmitz MOVED to recommend adoption of proposed Rule 31. Judge Hilden seconded. It is more likely an individual juror who has been forced to join the majority
during deliberations will voice dissent if polled individually rather than collectively. If the jury is polled, the amendment makes it clear polling should be done individually rather than collectively. The Committee noted, in civil cases, N.D.C.C. § 28-14-23 provides for individual polling. The motion CARRIED by a vote of 13 to 0.
RULE 33, N.D.R.Crim.P. - NEW TRIAL (PAGES 193-207 OF THE AGENDA MATERIAL)
The Committee reviewed the December 1, 1998, amendment to Fed.R.Crim.P. 33. The amendment clarifies when the time starts to run for moving for a new trial based on newly discovered evidence. Under the amended federal rule, the time for moving for a new trial starts to run from the "verdict or finding of guilty." Under the old rule, the time for moving for a new trial started to run from the "final judgment." Using the "final judgment" as the triggering event caused confusion because it was unclear whether the "final judgment" being referred to was the "final judgment" of the trial court or of the appellate court. Federal courts held the judgment being referred to was the final judgment of the court of appeals. U.S. v. Reyes, 49 F.3d 63, 66 (2nd Cir. 1995).
The federal amendment also extends the time from two years to three years for moving for a new trial based on newly discovered evidence. Otherwise, defendants would have less time to move for a new trial; since under the amendment, the time runs from the "verdict or finding of guilty" rather than the judgment of the court of appeals.
The Committee considered the proposed amendment to N.D.R.Crim.P. 33 on pages 203-207. The changes are intended to be stylistic; except on lines 19 and 20, the time for moving for a new trial based on newly discovered evidence is extended from two to three years, and the event from which the time starts to run is changed from the "final judgment" to the "verdict or finding of guilty."
Judge Hunke MOVED to adopt the amendment. Ms. Schmitz seconded. Without objection, the Committee agreed to strike the word "only" on line 26 to avoid inconsistency with the next sentence. The Committee noted, the federal amendment makes the time period the same regardless whether an appeal is taken. Otherwise, those who appealed would have a longer time to make the motion because the time for moving for a new trial would run from the "judgment" of the court of appeals rather than the trial court.
Judge Leclerc MOVED to amend line 19 to provide a motion for a new trial may only be made within two years instead of three years. Judge Simonson seconded. The Committee questioned whether the numeral should be spelled out.
Committee members argued, if a defendant is able to produce evidence of innocence, the defendant should be allowed to make the motion three years later. Committee members stated, the Uniform Post-Conviction Procedure Act, N.D.C.C. § 29-32.1, is civil in nature. It provides a different technic that does not provide the same protection as a criminal proceeding.
The Committee voted on Judge Leclerc's motion to limit the time for moving for a new trial from three years to two years on line 19. The motion FAILED. On page 207, line 112, by unanimous agreement, the Committee decided to delete the phrase: "
, or County Court With Increased Jurisdiction . . . ."
On page 206, Judge Simonson MOVED to amend lines 92-97 as follows: "Minutes include the unofficial and untranscribed notes of the court reporter
, or court recorder and notes of the clerk of court indicating which exhibits have been received , and the notes made by the trial judge during the course of the trial." Judge Hilden seconded. The motion CARRIED by a vote of 9 to 3.
The Committee voted on the motion to recommend adoption of Rule 33. The motion CARRIED by a vote of 13 to 0.
RULE 615, N.D.R.Ev. - EXCLUSION OF WITNESSES (PAGES 208-211 OF THE AGENDA MATERIAL)
The Committee considered the December 1, 1998, amendment to Fed.R.Ev. 615. The amendment creates a new exception as to when the court is not required to exclude a witness from trial. The amendment creates a new exception prohibiting the court from excluding a witness who is authorized by statute to be present. Without the amendment, it appeared the defendant could require the court to exclude a crime victim from trial.
For discussion purposes, Ms. Schmitz MOVED to amend N.D.R.Ev. 615 as shown on pages 210-211 to follow the federal amendment. Mr. McLean seconded.
The Committee noted, N.D.C.C. § 12.1-34-02(11) provides: "The victim must be informed by the prosecuting attorney of the victim's right to be present throughout the trial
of the defendant, except at provided by Rule 615 of the North Dakota Rules of Evidence." Committee members stated, the amendment would create a circular situation with the rule and statute each referring to each other.
Committee members stated, usually the victim is the first witness called and then is not excluded because the victim is no longer a witness. Others said, the victim may still be a witness if the prosecution calls the victim as a rebuttal witness.
Committee members said the amendment to Rule 615 would allow the legislature to amend the statute to give a victim the right to be present. Others stated, the legislature should not be invited to tell the Court what to do with procedure. Committee members also stated, the statute is vague because it does not give the right to be present. The statute simply says the victim should be informed of the right to be present.
The Committee noted N.D.C.C. § 27-01-02 provides for public trials.
The Committee voted on the motion to approve the amendment to Rule 615. The motion FAILED by a vote of 1 to 11. Mr. McLean MOVED to amend Rule 615 as follows: ", or (iv) the victim of the alleged crime." Ms. Moore seconded.
Judge Leclerc objected to consideration of the question. The Chair stated, Judge Leclerc's objection is undebatable and requires a two-thirds vote to be sustained. The Committee voted on the objection. Seven voted in favor of the objection, while six members were opposed.
Committee member argued the word "victim" is a term of judgment. Others members said, other statutes use the word "victim."
The Committee voted on Mr. McLean's motion. The motion FAILED by a vote of 3 to 9.
The meeting adjourned at approximately 12:00 noon.