MINUTES OF MEETING
Joint Committee of the Judicial Council and the State Bar Association for the Adoption of Rules of Criminal Procedure
November 17, 1967
The Joint Committee of the Judicial Council and the State Bar Association for the Adoption of Rules of Criminal Procedure met at 10:00 a.m., November 17, 1967, in the hearing room of the Supreme Court.
The following members were present: from the Judicial Council, Supreme Court Judge Ralph J. Erickstad (Chairman), District Judge Roy A. Ilvedson, District Judge Norbert J. Muggli, County Judge Kirk Smith, Mr. John Shaft, Retired Supreme Court Judge James Morris, District Judge Eugene A. Burdick; from the State Bar Association, Former Supreme Court Judge William S. Murray, Mr. Gerald G. Glaser, Mr. Robert L. Vogel. Also present were: Mr. John A. Graham, law clerk; Mrs. Rebecca Quanrud, secretary.
Judge Smith read his draft of a statement of the aims and scope of the committee's work. A general discussion followed. Judge Ilvedson moved that each member receive a copy of the draft, examine it, and be prepared to discuss it at the next meeting. Judge Morris seconded the motion. The motion carried unanimously.
Judge Erickstad announced that members of the committee would take turns in reading aloud study material relating to the rule under study at that time. This will include the material prepared by Mr. Graham, the Uniform Rules of Criminal Procedure drafted by the National Conference of Commissioners on Uniform State Laws at their 1952 meeting, and drafts prepared by members. It is to be noted that Judge Burdick submitted a draft of Rules 1 through 5.
Judge Muggli read the material relating to Rule 1. After discussion initiated by Mr. Shaft, the consensus was that it was the desire of the committee to have uniformity of proceedings in all courts of the state if possible.
Judge Burdick stated that he felt that all actions taken by this committee should be tentative until final action is taken on all rules. This was generally agreed to.
Judge Ilvedson moved that the committee adopt tentatively Rule 1 as submitted in Judge Burdick's draft. Judge Murray seconded the motion. The motion carried unanimously. The rule reads as follows:
Rule 1. Scope.
These rules govern the practice and procedure in all criminal actions and proceedings in the district court, and, so far as applicable, in all other courts.
Judge Burdick suggested that the proposed rules contain a table showing statutes superseded by the rules.
Mr. Vogel read the material relating to Rule 2.
Judge Murray moved that Judge Burdick's draft of Rule 2 be tentatively adopted. Judge Muggli seconded the motion. The motion carried unanimously. The rule reads as follows:
Rule 2. Purpose and Construction.
These rules are intended to provide for the just determination of every criminal action or proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.
Judge Ilvedson read the material relating to Rule 3. Judge Erickstad suggested that because of the close relationship between Rules 3, 4, and
5, no action should be taken on Rule 3, but that Rules 4 and 5 be read before action be taken on any of them.
Judge Morris, Mr. Shaft, Judge Smith, and Mr. Glaser read material relating to Rule 4. Judge Burdick called attention to an omission in his draft of Rule 4; it should read as follows:
(1) Execution of warrant. The warrant shall be directed to all peace officers in this state and shall be executed only by a peace officer. It shall be executed by the arrest of the defendant and may be executed in any county of the state by any peace officer in the state. The officer need not have the warrant in his possession at the time of the arrest, but if he has the warrant at that time he shall show it to the defendant immediately upon request. If the officer does not have the warrant in his possession at the time of the arrest, he shall then inform the defendant of the offense and of the fact that a warrant has been issued, and upon request he shall show the warrant to the defendant as soon as possible. [The underscored language was inadvertently omitted from Judge Burdick's draft.]
Judge Erickstad asked committee members to underscore the second sentence of Rule 4(d) in Judge Burdick's draft ["At the request of the prosecuting attorney an unexecuted warrant shall be returned to the magistrate by whom it was issued and shall be canceled by him."] and mark it for research.
Judge Burdick stated that he would research the meaning of the sentence.
Mr. Vogel moved that the word may be substituted for the word shall in the sentence. After discussion Mr. Vogel withdrew his motion.
It was noted that N.D.C.C. § 29-05-06 requires the state's attorney's approval before a warrant of arrest may issue in a county justice case. This would be eliminated by the proposed Rules 3 and 4; the question is, would this be good or bad?
Judge Erickstad requested Mr. Glaser to do research on the question of whether the rules should refer to criminal action or proceeding and whether an enlargement of those terms would be required to cover city ordinance violations and, if so, the advisability of doing so.
Judge Erickstad appointed Judge Muggli to prepare a possible amendment to Judge Burdick's proposed amendment to his draft of Rules 3 and 4(a). Judge Burdick's proposed amendment reads as follows:
Rule 3. The Complaint.
The complaint is a written statement of the essential facts constituting the offense charged. It shall be made upon oath before a magistrate of this state who may examine on oath the complainant and other witnesses as well as receive an affidavit or affidavits filed with the complaint. If the magistrate examines the complainant or other witnesses on oath, he must cause their statements to be reduced to writing and to be subscribed by the persons making them.
Rule 4. Warrant or Summons Upon Complaint.
(1) Warrant. If it appears from the complaint, or from the examination, if any, of the complainant or other witnesses, or from an affidavit or affidavits filed with the complaint, that there is probable cause to believe that a criminal offense has been committed by the defendant, a warrant for the arrest of the defendant shall issue to any officer authorized by law to execute it.
Judge Burdick moved that his proposed draft of Rules 3 and 4 as amended by the amended draft of Rules 3 and 4(a)(1) be the working draft subject to further amendment on the questions of cancellation of warrants and state's attorneys' approval. Judge Muggli seconded the motion. Motion carried unanimously.
Judge Burdick read material relating to Rule 5.
Judge Erickstad requested Judge Smith to make a special study of Rule 5 and bring in written suggestions at the next meeting. He made other special assignments as follows: Rule 4, Mr. Shaft; Rule 3, Mr. Glaser; Rule 6, Judge Morris; Rule 7, Judge Ilvedson; Rule 8, Mr. Vogel; Rule 9, Judge Muggli; Rule 10, Judge Murray.
Judge Burdick announced that he would make a special study of Rules 6 through 10.
Mr. Vogel moved that the minutes of the meeting of September 21 be corrected to show that Mr. Glaser, not Mr. James Schlosser, had been appointed to the committee by the State Bar Association. Mr. Shaft seconded the motion. The motion carried unanimously.
Members working on special study assignments who wish to have their study material, including drafts of proposed rules, reproduced in the Supreme Court, were requested to send in the material far enough in advance of the meeting date to allow sufficient time for the work to be done.
Judge Erickstad announced that the committee would meet again on January 26 and 27, 1968. Judge Burdick suggested that the meetings begin at 9:00 a.m., and this was agreed to.
The meeting adjourned at 5:17 p.m.