MINUTES OF MEETING
Joint Procedure Committee
April 25, 1996
TABLE OF CONTENTS
Form 7, N.D.R.Crim.P. - Criminal Judgment and Commitment 2
Rule 14, N.D.R.Civ.P. - Third Party Practice 3
Section 27-10-01.3, N.D.C.C. - Appeal in Contempt Cases 4
Rule 8, N.D.R.Civ.P. - Pleading Damages 4
Elimination of Criminal Information 5
Proposed Rule 11.1, N.D.R.Crim.P. - Suspended Prosecution 7
Rule 3.2, N.D.R.O.C., and Rule 6, N.D.R.Civ.P. - Motion Practice 8
Rule 56, N.D.R.Civ.P. Summary Judgment 11
Rule 7, N.D.R.Civ.P. Pleading Allowed-Form of Motions 12
Proposed Rule 412, N.D.R.Ev. - Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition 12
Rule 16, N.D.R.Crim.P. - Discovery and Inspection 15
Rule 32, N.D.R.Crim.P. - Sentence and Judgment 16
Rules 50, 52, and 59, N.D.R.Civ.P. - Post-Judgment Motions 18
CALL TO ORDER
The meeting was called to order at approximately 9:00 a.m., April 25, 1996, by Justice Dale V. Sandstrom, Chair.
Justice Dale V. Sandstrom
Honorable Wallace D. Berning
Honorable Bruce E. Bohlman
Honorable Donovan Foughty
Honorable Gail Hagerty
Honorable Maurice R. Hunke
Honorable Lawrence A. Leclerc
Honorable Kirk Smith
Mr. Michael R. Hoffman
Mr. John C. Kapsner
Professor Larry Kraft
Mr. James L. Lamb
Ronald H. McLean
Ms. Patricia R. Monson
Ms. Sherry Mills Moore
Mr. James T. Odegard
Honorable Ronald L. Hilden
Honorable James A. Wright
Mr. Robert C. Heinley
Ms. Cathy Howe Schmitz
Mr. Gerhard Raedeke
Introductions were made as this was Justice Sandstrom's first Joint Procedure Committee Meeting.
Staff announced on May 15, 1996, the Supreme Court will hold a hearing on the family law amendments proposed by the Committee. The Committee discussed when the rules should become effective. Normally, rules become effective on March 1. Both Michie and West have February ship dates.
Committee members questioned whether rules should become effective before they are published. The Committee decided the family law amendments should become effective August 1, 1996, or as soon as possible. The Committee noted the amendments will be published in the advance sheets. Normally, rules should continue to be submitted to the court once a year with an effective date of March 1.
APPROVAL OF MINUTES (PAGES 1-24 OF THE AGENDA MATERIAL).
Judge Leclerc MOVED the minutes from the January 25-26, 1996, meeting be approved as submitted. Judge Smith seconded. Motion CARRIED.
FORM 7, N.D.R.Crim.P. - CRIMINAL JUDGMENT AND COMMITMENT (PAGES 25-35 OF THE AGENDA MATERIAL).
Staff explained Form 7 needs to be amended in response to new Section 29-27-07, N.D.C.C., which provides a judge may not designate the state correctional facility in which an offender is to be confined. Instead a judge is to commit the offender to the custody of the Department of Corrections and Rehabilitation. Under the old statutes, a judge had some authority to designate the initial place of confinement.
Also, Section 12.1-32-07, N.D.C.C., provides for placing a probationer under the supervision and management of the Department of Corrections and Rehabilitation. Formally, Section
12-53-14, N.D.C.C., provided for placement of a probationer under the custody of the Board of Pardons.
The Committee questioned whether the form on page 28 should be eliminated. Others thought the form was helpful in some of the rural counties. The Committee noted judges often use their own form.
Committee members commented the form is confusing. The form tries to do to many things by providing various types of sentencing options. It was suggested separate forms be adopted for the different types of sentencing options. It was also suggested a uniform form for sentencing misdemeanors be adopted.
Committee members thought the form should be amended to comply with the new statutes. The changes should be made immediately so the form can be submitted to the Supreme Court in June, with the proposals approved at the September, January, and April meeting, The form should also be completely redone for the Committee's consideration at the September meeting.
On pages 28-31, Judge Hunke MOVED to adopt the changes as shown on lines 190, and to delete the language on lines 91-106. Judge Hunke further MOVED that staff make minor changes to improve the language in the rule. The word "that" should be eliminated on lines 29 and 41. Judge Hunke further MOVED that Staff prepare new forms for the Committee's consideration after consulting the State's Attorney's Association. Mr. Odegard seconded. Motion CARRIED.
RULE 14, N.D.R.Civ.P. - THIRD PARTY PRACTICE (PAGES 36-41 OF THE AGENDA MATERIAL).
The Committee reviewed a letter from Bob Wefald in which he requested Rule 14 be amended to indicate a third-party action may not be brought when a claim for contribution is barred by Section 32-03.2-02, N.D.C.C. Committee members did not think an amendment was necessary because Rule 14 already provides a third-party action may not be brought against a person who cannot be found liable to the third-party plaintiff. The Committee did not think a reference to the statute was necessary in the rule, or the explanatory note, because practitioners are responsible for researching statutes in addition to rules.
Mr. Kapsner MOVED to adopt the explanatory note as shown on pages 40-41, but with the deletion of lines 60-63. Judge Hunke seconded. Motion CARRIED.
SECTION 27-10-01.3, N.D.C.C. - APPEAL IN CONTEMPT CASES (PAGES 42-44 OF THE AGENDA MATERIAL).
Staff explained the contempt statute regarding appeal, Section 27-10-01.3, N.D.C.C., does not expressly provide for appeal when a person is not found in contempt in a civil contempt proceeding. However, Johnson v. Johnson, 527 N.W.2d 663, 665-666 (N.D. 1995), indicates a civil contempt is appealable when a person is not found in contempt, based upon the general appeal statute, Section 28-27-02(2), N.D.C.C.
The Committee declined to go through the legislative process to amend the contempt statute. Judge Leclerc MOVED that staff request the Michie Publishing Company to annotate the Johnson case under Section 27-10-01.3, N.D.C.C., so it will be apparent there is a right to appeal when looking at the contempt statutes. Judge Hagerty seconded. Motion CARRIED.
RULE 8, N.D.R.Civ.P. - PLEADING DAMAGES (PAGES 45-59 OF THE AGENDA MATERIAL).
The Committee reviewed the authority of the North Dakota Supreme Court to promulgate procedural court rules and to supersede statutes governing court procedure. Staff explained the Legislature appears to have authority to enact statutory rules of procedure. But if there is a conflict, the court rule will supersede the procedural statute. The court, however, has a preference for harmonizing rules and statutes and will probably not find a conflict if a statute simply adds a supplementary requirement.
The Committee reviewed the statutes on pleading damages, Sections 28-01.3-02 and 32-03.2-07, N.D.C.C. The Committee also reviewed Rule 8, N.D.R.Civ.P., which contains the general rules of pleading. The statutes require damages to be pled generally when an amount greater than $50,000 is sought. Rule 8 only requires "a demand for judgment for the relief the pleader seeks." The Committee questioned whether the statutes should be superseded, and the requirement for general pleading incorporated into Rule 8.
Some Committee members liked the way the Supreme Court is handling the Legislature's enactment of procedural statutes. The Supreme Court has asserted its authority. No need exists for superseding a statute unless a conflict exists with a rule of court. Numerous statutes are intertwined with procedure and it would be overwhelming to remove all procedure from statutes. In addition, the statutory schemes would become confusing if all procedure were removed from the statutes.
Committee members said superseding the statutes on pleading damages and incorporating the requirements for general
pleading into Rule 8 would be an inconsequential act. Battles should be saved for bigger issues. Superseding Rule 8 would not send a strong enough message. The Committee was also concerned about creating an impression that other procedural statutes are valid and harmonious with the court rules by singling out Rule 8 for amendment.
Other Committee members suggested amending Rule 8 does not send a message. The legislature does not understand messages. It would be more convenient if attorneys were able to find the requirements for pleading damages in Rule 8, rather than having to look at both Rule 8 and the statutes.
Mr. Lamb MOVED to adopt Rule 8 as proposed on page 56. Professor Kraft seconded. Motion FAILED.
Committee members expressed concern about the statute on exemplary damages. The statute prohibits exemplary damages from being pled initially. The statute is being applied inconsistently. Some judges in North Dakota allow exemplary damages to be pled in the complaint because pleading is a procedural matter.
The Committee was unsure as to whether punitive damages should be allowed to be pled in the complaint. Pleading punitive damages in the complaint creates bad publicity. But, if punitive damages are pled late in the case, discovery is already done and additional expense and delay is created by the need for additional discovery. Committee members wanted uniformity of practice, so there are not disputes in every case regarding the statute. Judge Leclerc volunteered to work on the statute regarding punitive damages, and to send a proposal to staff for the Committee's consideration.
ELIMINATION OF CRIMINAL INFORMATION (PAGES 60-75 OF THE AGENDA MATERIAL).
The Committee reviewed Judge Hunke's request to provide for prosecution of all crimes by complaint. Judge Hunke suggested using both a complaint and an information is a wasteful redundancy and the terminology is confusing. Judge Hunke also suggested another option. Judge Hunke suggested amending Rule 7, N.D.R.Crim.P., to provide as follows:
"All criminal prosecutions must be by indictment, information, or complaint."
Under that proposal, prosecutors would have the choice of proceeding on complaint or filing an information after the preliminary examination.
Committee members argued if prosecutors are allowed a choice between using only the complaint, or both the information and compliant, the prosecution would never use an information.
Committee members commented if the only document used is the complaint, an additional document will still have to be filed later to list witnesses. More amended complaints are also likely to result because more specific allegations will often need to be made further into the process. A wasteful redundancy will not be eliminated by getting rid of the information.
The Committee questioned whether it would be constitutionally permissible to proceed exclusively by information. The Committee noted State v. Buehler, 125 N.W.2d 155 (N.D. 1963). In Buehler the Supreme Court upheld the use of a complaint to prosecute a misdemeanor, even though North Dakota's constitution requires an information, because the complaint is the functional equivalent of an information. In regard to felonies, the Committee noted that Art. I, § 10, N.D. Constitution provides:
"Until otherwise provided by law, no person shall, for a felony, be proceeded against criminally, otherwise than by indictment . . . ."
The Committee further noted the Supreme Court could "otherwise provide by law" and provide for prosecution of felonies by complaint instead of information. See Dickinson Newspapers, Inc. v. Jorgensen, 338 N.W.2d 72 (N.D. 1983).
Committee members argued there is no need for a preliminary hearing, or the preliminary hearing could be combined with the omnibus hearing. The preliminary examination could be eliminated because there is already a finding of probable cause. Two findings of probable cause are not needed.
Others argued use of the complaint should not be eliminated. It would be a step towards elimination of the preliminary examination. The use of the information signifies the procedure. The Committee noted in federal cases there is a right to a preliminary examination even in misdemeanor cases. Preliminary examinations have value and should be retained.
Also, the preliminary examination should come early in the process because what is being determined is whether there is probable cause to hold the defendant. If the preliminary examination is held at the omnibus hearing, the preliminary examination is held too late. If the omnibus hearing is held sooner, another omnibus hearing or pretrial conference will be needed later and nothing is accomplished.
The finding of probable cause at the preliminary examination is different than the initial determination of probable cause. The defense is heard from at the preliminary examination. The preliminary examination also has a deterrent value. Currently, prosecutors know they have the burden of showing probable cause at the preliminary examination. If the preliminary examination is eliminated, prosecutors are more likely to file questionable charges. In addition, even now cases are dismissed after the preliminary examination.
Others argued eliminating the compliant or allowing the prosecution to choose between proceeding on complaint or information is not a step towards eliminating preliminary examinations. Additional changes would need to be made to other rules and statutes to preserve the preliminary examination if use of the information is eliminated or made optional. Section 29-09-02, N.D.C.C., would need to be amended because it requires an information after a preliminary examination.
Judge Hunke MOVED to direct staff to prepare a draft proposal to allow the option of proceeding with the complaint or an information after the preliminary examination. The motion is not intended to eliminate the preliminary examination. The motion was seconded by Judge Leclerc. Motion FAILED.
Judge Leclerc MOVED to replace the information in all cases with the complaint, so all crimes are prosecuted by complaint. The preliminary examination would be preserved. Mr. Lamb seconded. The vote was 7 in favor, 7 opposed. Chair declined to vote, and the motion FAILED for lack of a majority.
PROPOSED RULE 11.1, N.D.R.Crim.P. - SUSPENDED PROSECUTION (PAGES 76-90 OF THE AGENDA MATERIAL).
The Committee considered a letter from Bruce Quick advocating adoption of a deferred prosecution rule patterned after Rule 27.05, Minn.R.Crim.P. The proposed rule would allow the prosecution and the defendant to agree to suspension of prosecution on conditions with court approval. If the conditions are complied with the prosecution would be dismissed. In his letter, Bruce Quick argues such a rule is desirable to defendants because there is no adjudication of guilt. He further argues such a rule is desirable to the prosecution because it allows the prosecution to impose limitations on the conduct of the defendant without having to obtain a guilty verdict and without having to waste the resources of the criminal justice system.
Committee members questioned the value of the proposed rule. Currently, the prosecutor and defendant can enter into a stipulation for dismissal without prejudice if approved by the judge. Committee members expressed concern about putting
conditions on an individual that are like probationary conditions without an adjudication of guilt. The question was raised who would monitor the conditions. Committee members were also afraid of setting up a quasi-judicial system. Others suggested state's attorneys currently have enough discretion as to whether to prosecute. Still others commented the rule limits the discretion of prosecutors as to what a stipulation for dismissal without prejudice may contain. The rule is a restriction on the prosecution. Many members questioned the desirability or need for a rule.
Judge Leclerc MOVED to approve the proposal. Mr. Lamb seconded. Motion FAILED.
RULE 3.2, N.D.R.O.C., and RULE 6, N.D.R.Civ.P. - MOTION PRACTICE (PAGES 91-109 OF THE AGENDA MATERIAL).
Staff addressed the Committee's questions from the last meeting as to how Minnesota and the federal courts reconcile the conflict between Rule 6 of the general rules of procedure and special motion practice rules as to when motion papers must be served. Rule 6 requires opposing affidavits to be served not later than 1 day before the hearing.
The Committee reviewed the minutes from the Minnesota Supreme Court Task Force on Uniform Local Rules on pages 93-95. Minnesota adopted a uniform motion practice rule, Rule 115, Minn.Gen.R.Prac., because the general rules of civil procedure did not adequately govern motion practice. Allowing service of papers 1 day before the hearing under Rule 6.04, Minn.R.Civ.P., was too late. The result was each district in Minnesota adopted different local rules with different time frames. Minnesota adopted its special motion practice rule even though the rule conflicted with Rule 6. The Committee thought it more important to have uniform motion practice rule reflecting the reality of practice. According to the Minnesota Committee's staff attorney, an attorney would be taking a risk by serving opposing affidavits 1 day before the hearing, because a judge might not accept an affidavit served later than allowed by Minnesota's motion practice rule, Rule 115, Minn.Gen.R.Prac.
Next, the Committee reviewed Marshall v. Gates, 44 F.3d 722 (9th Cir. 1995) The Marshall case indicates local rules govern over Rule 6(d), Fed.R.Civ.P. In Marshall, the court said a respondent could be sanctioned for serving opposing affidavits 1 day before the hearing when a local rule requires them to be served and filed earlier.
Next, the Committee reviewed Magistrate Klein's letter on page 100. She indicates there is no need for Rule 6(d) as it only adds an eliminate of confusion. Rule 6(d) is ignored in the U.S.
District Court for the District of North Dakota. Local Rule 7.1 governs.
Next, the Committee reviewed the amendments it approved to Rule 3.2 at the last meeting on pages 106-107. Committee members questioned why the provisions in Rule 6(d) regarding service of affidavits are needed. Rule 3.2 is intended to govern motion practice. There should not be Rule 6 and Rule 3.2 motions. Committee members argued allowing opposing affidavits to be served just 1 day before the hearing is too late. The other side may not even receive the opposing affidavits before the hearing.
Committee members questioned whether Rule 3.2 should apply to criminal cases. The Committee questioned whether a defendant in a criminal case has a right to be present at a motion hearing. Members stated in a criminal case, the defendant does not have a right to appear in a pretrial hearing involving a matter of law. Others stated Rule 3.2 does not address the issue of whether a criminal defendant has a right to be present. The Committee noted Rule 3.2 does give a defendant the right to request oral argument. The Committee noted Rule 43, Fed.R.Civ.P., expressly provides a defendant need not be present when the proceeding involves only a conference or hearing upon a question of law.
The Committee questioned when opposing affidavits must be served if the provision is eliminated in Rule 6(d) allowing service of opposing affidavits 1 day before the hearing. Others commented Rule 3.2 will govern when opposing affidavits must be served. The phrase "supporting papers" in Rule 3.2 includes affidavits.
Judge Leclerc MOVED to amend Rule 6(d) on page 102 by providing that opposing affidavits may be served not later than 5 days before the hearing instead of 1 day before the hearing. The motion FAILED for lack of a second.
Mr. Lamb MOVED to adopt the proposed deletions to Rule 6(d) on page 102. The motion deletes the provisions in Rule 6(d) as to when affidavits must be served. Mr. Lamb further MOVED to delete the sentence in Rule 3.2 on lines 13-16, page 106, which was tentatively approved by the Committee at the last meeting. The sentence to be deleted in Rule 3.2 provides as follows:
"If there is a request for oral argument or an evidentiary hearing, any affidavits must be filed under Rule 6(d), N.D.R.Civ.P."
Mr. Kapsner seconded. The motion CARRIED unanimously.
Judge Hagerty MOVED to adopt the explanatory note to Rule 6 on pages 102-104. Judge Leclerc seconded. Motion CARRIED.
The Committee continued its review of Rule 3.2 on pages 106-107. The proposal was approved by the Committee at the last meeting. But, because the amendments were made orally, the Committee had instructed staff to put Rule 3.2 back on the agenda so the Committee could see its amendments in print.
Judge Leclerc MOVED to delete the word "movant" on line 11 and substitute the phrase "moving party" and to add the phrase "and other supporting papers" after the word "briefs" on line 43. The purpose of the amendment is to make clear that extensions of time for filing briefs also includes supporting papers. Mr. Kapsner seconded. Motion CARRIED.
Mr. Kapsner MOVED to amend subdivision (e) to provides as follows:
"(e) Application of the Rule. This rule does not apply when it conflicts with another rule adopted by the Supreme Court."
Mr. Odegard seconded. Motion CARRIED.
Judge Hunke MOVED to adopt the explanatory note as proposed on pages 108109. Seconded by Judge Leclerc. Motion CARRIED.
Mr. Lamb distributed a proposal to the Committee which consisted of a rewrite of subdivision (a) of Rule 3.2. He explained the proposal is not intended to change the substance of Rule 3.2; but rather, the alternative language is intended to provide brevity and clarity.
Mr. Lamb MOVED to adopt his alternative draft of subdivision (a) of Rule 3.2 with the additional language from Rule 3.2 providing for a reply brief that was added by the Committee at the last meeting. Judge Smith seconded. Motion FAILED.
The Committee was concerned Mr. Lamb's proposal might make substantive changes. Committee members commented they had not had adequate time to look at his draft because it was not included in the agenda material. Others commented if the margins were indented and the proposal was double-spaced, the proposal is not much shorter than subdivision (a) of Rule 3.2.
The Committee was also concerned a lot of change was being made for what would be accomplished. The Committee was hesitant to make drastic changes to the language of subdivision (a), because each change in subdivision (a) has been made to address a specific issue and people have become familiar with the language of Rule 3.2. The Committee acknowledged Rule 3.2 was developed through piecemeal construction and perhaps the style of
Mr. Lamb's proposal was better. But the Committee was hesitant to make the amendment.
RULE 56, N.D.R.Civ.P. - SUMMARY JUDGMENT (PAGES 110-117 OF THE AGENDA MATERIAL).
The Committee considered whether to allow more time for responding to motions for summary judgment. The Committee noted Local Rule 7.1, U.S. Dist. Ct. of N.D., gives the respondent 30 days.
Committee members questioned whether allowing more time for responding to summary judgment motions would slow down collections. Committee members stated most collections can be handled by default judgment even when there has been an appearance. Summary judgment motions generally are not needed for collection cases.
Committee members questioned the need for allowing additional time for responding to motions for summary judgment. Some argued attorneys can get an extension when more time is needed. Thirty days is not needed to respond to most motions for summary judgment. All cases will end up being dragged out for those few cases needing extra time.
Others argued summary judgment motions are unique because of the amount of work that goes into a response. The movant will spend weeks and weeks preparing the motion. It is unfair to the respondent to have only 10 days to respond. Also, getting an extension may be difficult. If the request for an extension is denied, the respondent is left with no time to respond.
Committee members argued the exception for summary judgment motions should be placed in Rule 56 rather than Rule 3.2. Committee members were concerned about starting to make exceptions in Rule 3.2. The Committee was concerned about filling Rule 3.2 with exceptions covered by other rules.
Others argued the exception for summary judgment motions should be in Rule 3.2 so it is clear all the other procedures of Rule 3.2 are still applicable to summary judgment motions. Mr. Kapsner MOVED to adopt the changes to Rule 3.2 on page 112. Mr. Odegard seconded. Motion FAILED. The vote was 6 in favor and 7 in opposition.
Mr. Kapsner MOVED to amend Rule 56 on page 116, line 5, by adding the following sentence:
"The adverse party shall have 30 days after service of a brief within which to serve and file an answer brief and supporting papers."
Ms. Monson seconded. Motion CARRIED.
Calendar control clerks will have to set the hearing date for a motion for summary judgment further in advance than other motions so the respondent gets 30 days to serve and file the answer brief and the court gets the papers at least 24 hours before the hearing.
The Committee noted the motion must be served at least 34 days in advance of the hearing to ensure the respondent gets 30 days to prepare the answer brief, to allow 3 days for service by mail and to ensure all papers are filed at least 24 hours before the hearing as required in Rule 5(d)(2), N.D.R.Civ.P.
Rule 5(d)(2) is not intended to allow a respondent additional time to prepare an answer brief and supporting papers when the 10 day period under Rule 3.2 for preparation of an answer brief has expired. Motions must be served and filed far enough in advance so the respondent's time for serving and filing a brief expires at least 24 hours before the hearing. The provision the Committee deleted in Rule 6(d) is different. It gave the respondent the right to serve opposing affidavits not later than 1 day before the hearing.
RULE 7, N.D.R.Civ.P. - PLEADING ALLOWED-FORM OF MOTIONS (PAGES 118-122 OF THE AGENDA MATERIAL).
The Committee briefly reviewed Judge Bohlman's proposal on page 120 to incorporate provisions from Rule 3.2 regarding motion practice into Rule 7, N.D.R.Civ.P., and to eliminate Rule 3.2. The Committee decided not to consider amending Rule 7 to incorporate Rule 3.2's procedures for making motions. The Committee was satisfied with the amendments made to Rule 3.2.
At a future meeting, the Committee wants to consider the mechanics of getting a motion to the judge. often, judges will not know a motion has been filed. In some districts, clerks will not calendar motions. The Committee would like to consider adding a requirement to Rule 3.2 requiring a courtesy copy of the notice and motion to be furnished to the assigned judge.
PROPOSED RULE 412, N.D.R.Ev. - SEX OFFENSE CASES; RELEVANCE OF ALLEGED VICTIM'S PAST SEXUAL BEHAVIOR OR ALLEGED SEXUAL PREDISPOSITION (PAGES 123-150 OF THE AGENDA MATERIAL).
Staff explained a new Rule 412 was adopted by Congress as part of the Violent Crime Control and Law Enforcement Act of 1994. The purpose of the new rule is to expand the protection afforded
alleged victim's of sexual misconduct and to encourage prosecutions against sexual offenders.
Staff explained Rule 412 went through an expedited rule making process as a preemptive strike against more radical reform by Congress. When the rule was presented to the Supreme Court by the Advisory Committee, the Supreme Court thought the Advisory Committee had gone to far in its attempt to appease Congress. The Supreme Court rejected proposed Rule 412, because the Supreme Court was opposed to extending Rule 412 to civil cases. Instead, the Supreme Court submitted its own version of Rule 412 to Congress, which was applicable only to criminal cases. In turn, Congress rejected the proposal submitted by the Supreme Court and adopted the draft prepared by the Advisory Committee in which Rule 412 is applicable to civil cases.
The Committee considered the proposal patterned after Rule 412, Fed.R.Evid., on page 135. The Committee questioned the types of cases to which the rule would be applicable. For instance would proposed Rule 412 be applicable to sexual harassment cases, intentional infliction of emotional distress cases, personal injury cases with a loss of consortium claim, and divorce cases? Committee members commented the phrase, "alleged sexual misconduct," which governs the applicability of the rule is vague. For instance, does alleged "sexual misconduct" refer to ethically objectionable misconduct or legally sanctionable misconduct? The Committee noted the comments to the federal rules indicate sexual misconduct is not required to be alleged in the pleadings.
Committee members argued in hostile environment sexual harassment cases, evidence of sexual behavior is highly relevant to the issue of whether the advances were welcome or unwelcome. The conduct of the plaintiff needs to be examined to determine if the conduct was welcome, and the psychological makeup of the plaintiff needs to be examined to determine the emotional distress caused by the conduct.
The Committee noted the Supreme Court rejected extending Rule 412 to civil cases because the Court has said evidence of a complainant's "sexually provocative speech or dress" is "obviously relevant" to the issue of welcomeness in a sexual harassment case. See Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). Even though the standard in sexual harassment cases is objective, there is still a subjective element. The sexual conduct must in fact be unwelcome to the plaintiff. Committee members commented sexual conduct of the plaintiff unrelated to the workplace should be excluded under Rule 403, N.D.R.Ev.
Committee members also commented, the phrase "sexual predisposition" is vague.
Committee members argued evidence of sexual behavior should be excluded in civil cases just as in criminal cases. Excluding such evidence has worked in criminal cases. Victims in civil proceedings need the same protection as victims in criminal cases. Why should a victim in a criminal proceeding receive more protection when the sanction to the defendant is more severe in a criminal proceeding than in a civil proceeding?
Committee members argued politically correct rules of society do not make good rules of evidence. A number of reasons exit for not applying Rule 412 to civil cases. First, an alleged victim is not a draftee in the war on crime. The plaintiff is seeking to achieve a monetary gain. Second, in a civil proceeding, the person's victimhood is self-certified. There is no preliminary screening as in a criminal case. Third, a defendant does not have the same constitutional protections in a civil case as in a criminal case. Fourth, deference should be given to the Supreme Court's determination that evidence of sexual behavior is relevant in sexual harassment cases.
The Committee also noted the knowledge of a person's susceptibility to distress is a relevant factor in determining whether the conduct is extreme and outrageous in an intentional infliction of emotion distress claim.
Mr. McLean MOVED to adopt Rule 412 as proposed. Ms. Monson seconded. Motion FAILED.
Next, the Committee considered whether to adopt the proposal submitted to Congress by the Supreme Court on page 149. Under that proposal, Rule 412 would only be applicable to criminal cases.
The Committee questioned the difference between the proposal and North Dakota's rape shield statutes. Committee members commented the statutes are limited to sexual imposition. The proposed rule would apply to more criminal offenses such as sexual assault, solicitation of minors, and sexual exploitation by a therapist.
Committee members stated the proposal only applies to criminal proceedings and that adopting this rule would not mean by implication that evidence of sexual behavior is admissible in civil cases.
Mr. Kapsner MOVED to amend the title of Rule 412 as follows:
"Admissibility of Alleged Victim's Sexual Behavior or Alleged Sexual Predisposition in Criminal Proceedings."
Ms. Moore seconded. Motion CARRIED.
The Committee noted other differences between the rule and the rape shield statutes. The statutes address evidence of sexual conduct; whereas the proposed rule is broader and addresses both sexual behavior and sexual predisposition. The Committee also noted the exceptions in Rule 412 only allow specific instance evidence. The rule is clear. Section 12.1-20-14 appears to allow reputation and opinion evidence in certain circumstances. The Committee also noted the statutes limit their protection to the victim of the offense charged. The proposed rule also affords protection to a pattern witness.
The proposed rule makes evidence of a victim's dress inadmissible. Section 12.1-20-15.1 prohibits admission of evidence of a victim's manner of dress only if the probative value is outweighed by prejudice. Committee members also commented, the statutes are not very concrete. The parties end up with a relevancy test in Section 12.1-20-15, N.D.C.C. Committee members liked the fact the proposal sets out the exceptions more clearly.
Mr. McLean MOVED to adopt proposed Rule 412 as amended on pages 149-150. Ms. Moore seconded. The Committee noted its intent to supersede the rape shield laws. The Motion CARRIED. Seven members were in favor of the proposal, 3 were opposed, and 3 did not vote on the grounds they were not well enough informed.
RULE 16, N.D.R.Crim.P. - DISCOVERY AND INSPECTION (PAGES 151-158 OF THE AGENDA MATERIAL).
The Committee considered the 1994 amendment to Rule 16, Fed.R.Crim.P. The amendment clarifies organizational defendants are entitled to the same disclosure of statements as are other defendants. Before the amendment, the federal rule could be misinterpreted as limiting an organizational defendant's discovery to statements before a grand jury. Federal case law provides organizational defendants are not limited to discovery of statements before a grand jury.
The Committee noted North Dakota's Rule 16 is very similar to the federal rule. Committee members argued North Dakota's rule should be amended to stay consistent with the federal rule, and to clarify organizational defendants are entitled to the same disclosure of statements as are other defendants. Mr. Hoffman MOVED to adopt Rule 16 as proposed on pages 154-155. Judge Smith seconded. Motion CARRIED.
Judge Hunke MOVED to adopt the explanatory note to Rule 16 on pages 155-158 as proposed. Professor Kraft seconded. Motion CARRIED.
RULE 32, N.D.R.Crim.P. - SENTENCE AND JUDGMENT (PAGES 159-180 OF THE AGENDA MATERIAL).
Staff explained Rule 32, Fed.R.Crim.P., was revised, effective December 1, 1994. The rule was completely rearranged. On page 168, the Committee considered a proposal to revise North Dakota's Rule 32 to follow the 1994 revision to Rule 32, Fed.R.Crim.P.
The Committee noted subparagraph (b)(2) contains a provision not currently in North Dakota's rule. Subdivision (b)(2) provides for the attendance of the defendant's counsel at any presentence investigation interview. Committee members argued defense counsel should have the right to be present.
The Committee noted Section 12.1-32-02(10), N.D.C.C., provides the defendant must pay $50 to the Department of Corrections and Rehabilitation to defray the cost for preparing the presentence investigation report. Committee members argued requiring the defendant to pay for the report is unfair. Others argued once a defendant is found guilty, ordering the defendant to pay the fee is no different than ordering a defendant to pay a fine. There are consequences for being found guilty.
On page 169, the Committee considered the new provision in paragraph 5 which provides for exclusion of sensitive material from the presentence report. Currently, under Rule 32(c)(3), N.D.R.Crim.P., the court does not have to disclose material in the presentence report which may be harmful to the defendant or other persons. Under North Dakota's rule the court gets the information. A judge will receive a presentence report and a separate package that contains information the Department of Corrections and Rehabilitation deems harmful. Under the federal rule, a judge would not get the confidential material. The Department of Corrections and Rehabilitation would make the determination as to whether the material is harmful and should be included in the report.
Committee members argued the proposal undercuts the judicial process and violates separation of powers. The proposal would allow the Department of Corrections to develop information and use the information for recommendation of a sentence, but deny the court the basic information for determining sentence. The court should have full information at the time the sentencing decision is made. Otherwise, the final determination is really made by the Department of Corrections. The agency should not have more information than the sentencing judge. The Department of Corrections should not make the decision as to what is given the judge.
The Committee recognized some information should not be public. For instance, a victim impact statement may be included in
the report and should not be made public. Victims have an interest in keeping information private. Also, disclosure of certain information may be harmful to the defendant. Telling the defendant of his limitations and reasons for sentencing may not help with the defendant's rehabilitation.
Committee members suggested North Dakota's old rule be reexamined. Members indicated at one time all presentence investigation reports were confidential and not available to the public. The consensus of the Committee was that paragraph 5 on page 169 should not be adopted.
The Committee reviewed paragraph 6 on pages 169-171. Paragraph 6 contains new procedures for resolving objections to the presentence report. Explicit deadlines are provided. The probation officer must furnish the presentence report to the defendant not less than 35 days before the hearing. objections must be made within 14 days. The probation officer must submit the report to the court not later than 7 days before the sentencing hearing.
Currently, North Dakota's Rule 32 only requires that the presentence report be furnished to the defendant not less than 10 days before sentencing. The defendant is given a chance to object to information in the presentence report.
The Committee concluded North Dakota's Rule 32 should not be amended to follow the federal rule. The federal rule prolongs the process. In the federal system, the findings in a presentence report are more critical because of guideline sentencing. By consensus, the Committee rejected proposed paragraph 6.
The Committee reviewed subparagraph (E) on page 172. Subparagraph (E) is a new provision not currently in North Dakota's rule. Subparagraph (E) provides if a crime of violence or sexual abuse is involved, the court must determine if the victim wishes to make a statement regarding the sentence.
The Committee noted North Dakota's fair treatment standards for victims and witnesses statute, Section 12.1-34-02(14), N.D.C.C., gives victims the right to make a sentence recommendation in a written impact statement, and that a victim of a violent crime may appear in court to make an oral impact statement at the discretion of a judge. The Consensus of the Committee was subdivision (E) should not be adopted. The statute already provides ample safeguards for victims.
Next, on page 176 the Committee reviewed subdivision (h). Subdivision (h) is a new provision which provides the victim's right to speak may be exercised by a parent, legal guardian, or family members in certain circumstances.
The Committee noted the chapter for fair treatment of victims already covers the issue. Section 12.1-34-01(8) defines "victim" as including family members of a minor, incompetent, incapacitated or deceased person. Thus, the issue addressed in the proposal is already addressed by statute.
The Committee discussed whether North Dakota's rule should be revised to follow the style changes and rearrangement of the federal rule. The Committee decided to leave North Dakota's rule in its current form. For the next meeting, staff is to prepare a proposed amendment to North Dakota's rule providing for the presence of the defendant's counsel at any presentence investigation interview. Staff was also instructed to include in the agenda material the old provisions of Rule 32 that used to provide for confidentiality of the presentence investigation report.
The Committee also noted the explanatory note to Rule 32 will need to be amended in response to the revision of the federal rule. The subdivisions in North Dakota's Rule 32 no longer correspond with the federal rule.
RULES 50, 52, AND 59, N.D.R.Civ.P. - POST-JUDGMENT MOTIONS (PAGES 181-195 OF THE AGENDA MATERIAL).
Staff explained the proposed amendments to Rules 50, 52, and 59 follow the 1995 federal amendments. The changes are stylistic, except for the changes providing post-judgment motions must be "filed" rather than "served" or "made" not later than 10 days after notice of entry of judgment. The purpose of that change is to achieve a consistent, uniform measure between Rules 50, 52, and 59 as to when post-judgment motions must be made.
Committee members questioned whether the rules should say "served and filed" as does Rule 3.2. Others stated two operative dates would be created by requiring "filing" and "service." The federal comments indicate "filing" is required because it is an event that can be determined with certainty from court records.
Others argued "service" should be the operative date. If filing is the operative date, the parties will only have about 7 days to decide whether to make the post-judgment motion and to prepare the post-judgment motion. If service is made by mail, a party needs to allow 3 days mailing time. Committee members argued the date of service can be determined from the affidavit of mailing.
Committee members questioned why a motion for a new trial by a party against whom judgment as a matter of law has been rendered must be filed no later than 10 days after notice of entry
of judgment. Under Rule 59 a party has 60 days after notice of entry of judgment to make a motion for a new trial.
Committee members stated there is a good reason for the inconsistency. Rule 50 motions for a new trial are easier to prepare because judgment was granted as a matter of law. Under Rule 50 the decision is not as dependent upon the evidence received. It is more likely a transcript will be needed for a motion for a new trial under Rule 59.
Others argued Rule 50 and Rule 59 should have the same time limit for motions for a new trial. Rules 50 and 59, Fed.R.Civ.P., both contain a 10 day time limit for making a motion for a new trial. Likewise, Rules 50 and 59, Minn.R.Civ.P., both contain a 15 day time limit for making a motion for a new trial. North Dakota's Rules 50 and 59 should be consistent. If anything, the Rule 50 motion for a new trial should allow more time than a Rule 59 motion for a new trial. Under Rule 50 there is a better chance of winning than under a Rule 59 motion for a new trial. The transcript is more likely to be needed for the Rule 50 motion than a Rule 59 motion.
Committee members argued allowing 60 days for a new trial under Rule 59 is not helpful. Ten days would be sufficient because you cannot get a transcript within 60 days. The transcript of the entire trial is not usually ordered pre-appeal. If the transcript is needed, a party could file a motion and ask for an extension of time to file a brief. Sixty days are not needed under Rule 59.
Judge Smith MOVED to table discussion of Rules 50, 52, and 59 until the next meeting. Judge Leclerc seconded. Motion CARRIED.
The meeting adjourned at approximately 4:00 p.m.