TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 3.2, N.D.R.Ct., Motions
The East Central Judicial District has allowed its Local Rule 1 on Motions Practice to lapse. In its place, the ECJD enacted a standing order requiring hearings to be held on certain specified types of motions. A copy of the standing order is attached.
The Chief Justice has suggested that the Committee take a look at the interaction between this new standing order and Rule 3.2. In particular, the Chief Justice would like the Committee to discuss whether Rule 3.2 was intended to allow standing orders requiring hearings on specified types of motions or whether case-by-case consideration of the need for a hearing should be required before a hearing is ordered.
Staff has prepared a draft version of Rule 3.2 containing a proposed amendment that would require case-by-case consideration of whether a hearing should be ordered. On the other hand, if the Committee concludes that requiring hearings by standing order is appropriate, it may wish to discuss whether language should be added to the rule or explanatory note to make this point clear.
Attorney Valeska Hermanson has submitted a separate proposal for amending Rule 3.2. She suggests that a party who submits affidavits in support of a motion relating to a divorce or custody matter should be required to make the affiant available for cross examination. She proposes adding a new subdivision to the rule adding this requirement. In a letter, which is attached, she outlines the reasons why it would be appropriate to impose such a requirement in divorce and custody matters.
In addition to these proposals, staff also prepared form and style revisions to subdivision (a) of the rule and included a reference to hearings by interactive television, which are now allowed by N.D. Sup. Ct. Admin. R. 52.
A copy of a Rule 3.2 draft containing the above-discussed proposals is attached.