MINUTES OF MEETING
Joint Procedure Committee
April 24-25, 2003
TABLE OF CONTENTS
Rule 13, N.D. Sup. Ct. Admin. R. - Judicial Referees 3
Rule 8.10, N.D.R.Ct. - Writs 4
Rule 41, N.D. Sup. Ct. Admin. R. - Access to Judicial Records 6
Rule 34, N.D. Sup. Ct. Admin. R. - Rule Regarding Domestic Violence Advocates 12
Rule 21, N.D.R.App.P. - Supervisory Writs; and Rule 40, N.D.R.App.P. - Petition for Rehearing 14
Rule 43, N.D.R.App.P. - Substitution of Parties 14
Rule 5, N.D.R.Crim.P. - Initial Appearance Before the Magistrate 16
Order 15, N.D. Sup. Ct. Admin. R. - Interactive Television Project--Southeast Judicial District 20
Resignation of Judge Hilden 23
Rule 7.1, N.D.R.Civ.P. - Disclosure Statement; Rule 12.3, N.D.R.Crim.P. - Disclosure Statement; and Rule 26.1, N.D.R.App.P. - Corporate Disclosure Statement 23
Rule 2, N.D.R.Crim.P. - Purpose and Construction 24
Rule 3, N.D.R.Crim.P. - The Complaint 25
Rule X, N.D. Sup. Ct. Admin. R. - Civil Case Management; Rule 16, N.D.R.Civ.P. - Pretrial Conferences; Scheduling; Management; Rule 26, N.D.R.Civ.P. - General Provisions Governing Discovery; and Rule 40, N.D.R.Civ.P. - Assignment of Cases for Trial 26
CALL TO ORDER
The meeting was called to order at approximately 1:00 p.m., on April 24, 2003, by Justice Dale V. Sandstrom, Chair.
Justice Dale V. Sandstrom
Honorable Bruce E. Bohlman
Honorable Donovan Foughty
Honorable M. Richard Geiger
Honorable Gail Hagerty
Honorable Ronald L. Hilden (April 25 only)
Honorable Lawrence A. Leclerc
Honorable David W. Nelson
Honorable Thomas J. Schneider
Honorable Mikal Simonson
Professor Linda Bata
Mr. Michael R. Hoffman
Mr. John C. Kapsner
Mr. Daniel S. Kuntz
Mr. Galen J. Mack
Mr. Ronald H. McLean
Ms. Sherry Mills Moore
Mr. Steven W. Plambeck
Mr. Michael G. Sturdevant
Ms. Cathy Howe Schmitz
The Chair welcomed Mr. Galen Mack, a new member of the Committee. Mr. Mack replaces Mr. James Odegard, who retired from the Committee.
The Chair invited Committee members to attend a special Inns of Court meeting Thursday evening at the State Capitol.
The Chair presented information on possible meeting sites in Medora.
APPROVAL OF MINUTES
Judge Leclerc MOVED to approve the minutes. Judge Geiger seconded. The motion CARRIED unanimously.
RULE 13, N.D. Sup. Ct. Admin. R. - JUDICIAL REFEREES (PAGES 24-50 OF THE AGENDA MATERIAL)
Staff reviewed actions taken by the Committee on Rule 13 at its January 2003 meeting and explained the proposed amendments to the rule.
Mr. Sturdevant MOVED to submit the rule as amended to the Supreme Court. Judge Bohlman seconded.
The Chair asked for discussion of the proposed amendments.
A member stated that it was not a good idea to require the district court to perform a de novo review of referee decisions. The member said that the Supreme Court's review on appeal is a de novo review and indicated that there should be only one de novo review in a case.
A member questioned the use of the word "on" on line 67 rather than "of."
Judge Simonson MOVED to amend proposed rule on line 67, page 50, to change the word "on" to "of." Judge Leclerc seconded.
A member said if the word "on" was removed then there was no need for the provision allowing a hearing. The member said "of or on" would be a better alternative.
A member asked how a court could review a matter "on" the record--the member said the word suggested that it would be necessary to have a reporter present throughout the process.
A member suggested that simply eliminating the portion of the sentence referring to review of the record would solve the problem.
Mr. Kapsner MOVED a substitute amendment to insert a period on line 67 and delete the remainder of the sentence. The motion FAILED for lack of second.
Judge Simonson's motion CARRIED.
The motion to submit rule to the Supreme Court CARRIED 12-3.
RULE 8.10, N.D.R.Ct. - WRITS (PAGES 51-57 OF THE AGENDA MATERIAL)
Staff reviewed actions taken by the Committee on Rule 8.10 at its January 2003 meeting and explained that Rule 8.10 is a work in progress presented for further discussion and amendment.
Mr. McLean MOVED to send the rule as amended to the Supreme Court. Ms. Moore seconded.
A member asked whether the rule would apply to the Supreme Court. It was agreed the Rules of Court apply both to appellate and trial courts except when a specific appellate rule conflicted.
A member noted that the statute the rule was based on allowed a court to act on a petition for writ without giving notice to parties opposing the writ. The member said this seemed to make no sense, but asked the Committee whether there were situations where it would be appropriate for a court to act on a writ without giving notice to opposing parties.
A member stated that parties have no right to respond to writ petitions and courts are allowed to deal with petitions on an ex parte basis. The member said that a court traditionally addresses a petition for writ of certiorari without seeking a response. The member said, however, that a response and hearing are generally required in cases where a writ of mandamus or prohibition is sought. The member said that having one rule for all these procedures might not be appropriate.
A member said that the procedure that has been followed under the statutes was for a petitioner to submit a writ petition without notice to any other party. The court could then grant the petition, reject it, or, if the court thought that notice should be given, issue an order to show cause why the writ should not be granted. The member said that the court's option to consider a writ ex parte should not be limited by rule.
A member noted that many types of writs exist under statute in North Dakota, and most attorneys would not be able to state where one writ ends and another begins. The member said that, because of attorney lack of familiarity with the various types of writs, it would be advantageous to have a single writ rule to lay out procedure needed to get the writ in front of the court. The member said that creating an "omnibus writ" would also simplify matters greatly for parties.
A member said if the Committee intended to supersede statutory writ procedure, it would make more sense to set out a modern procedure for obtaining writ rather than trying
to rewrite the old procedures set out in the statutes.
A member said that the Committee's goal seemed to be harmonizing writ application procedure to simplify the process of obtaining relief. Another member said, however, that a uniform procedure might not work for all types of writs.
A member suggested that the rule should not contain any writ definitions and should refer those seeking a writ to the statutes for information on what type of writ to seek.
A member said that attempting to reform writ procedure may not be appropriate. The member said that statutory writs constitute a legislative attempt to create mechanisms to protect the people from the courts. The member said that, from a separation of powers perspective, changing the legislatively established writ system and bringing all writs under the court rule system may not be a proper thing to do.
A member suggested that the Committee limit itself to dealing with the procedure to follow for obtaining a writ rather than dealing with any of the substantive aspects of statutory writs. The member said that attorneys generally make their writ petitions as all inclusive as possible, mentioning all writ types that might apply. The attorney said that deciding what writ to apply for was not the confusing part of the process--instead, the confusing part is figuring out the procedure to be followed once the court gets the application.
The member said the writ statutes give the courts many options on how to deal with a writ application. The member said it would be useful if the Committee could clarify what terms should be used and what general procedure the court should follow.
A member said that trying to formulate an omnibus or generic writ would still be useful. Another member replied that there were many aspects of the different writs that could not be integrated into an omnibus writ. The member said that formulating a generic procedure for writs should be the Committee's goal.
A member said that the writ of certiorari statutes specify that the petition be brought on affidavit. Another member observed that for a writ of mandamus, a verified pleading is required. The member said that a procedural aspect that the Committee should address was the type of form a petition should take and whether an affidavit or verified pleading is necessary.
A member said that, before trying to establish a generic procedure for writs, it would be necessary for the Committee to understand the substantive purpose of the various
extraordinary writs. There is also the question of whether injunctive relief is a true substitute for all the old writs. The member said it would be useful to have a better understanding of what the writs are used for.
A member said that years could pass before a writ question could come before a given court. Another member said this is why both lawyers and judges were often uncertain about what writ applies in a given case. The member said that this was a reason why an omnibus writ should be devised.
A member said it would be useful if staff could put together a document defining and explaining the various writs as well as a generic procedural rule for writ applications, if it is possible to devise such a rule. A member said that it would be useful to have an outline of the procedure now required by statute for parties applying for a writ, i.e., whether a verified statement is required, whether the writ can be issued ex parte, etc.
Judge Leclerc MOVED to refer rule back to staff for additional work on working out a generic rule and defining and explaining existing writs. Judge Geiger seconded. The motion CARRIED 16-0.
RULE 41, N.D. Sup. Ct. Admin. R. - ACCESS TO JUDICIAL RECORDS (PAGES 58-107 OF THE AGENDA MATERIAL)
Staff explained that the Committee had been asked to consider amending Rule 41 because opposing forces--a demand for large scale access to court records and a demand for more protection for private information within court records --were creating problems for the court system that were likely to grow.
Judge Leclerc MOVED to refer rule back to staff for additional work. Mr. Sturdevant seconded.
A member commented that there are significant reasons why social security numbers and other private information must be included in many divorce and child support related documents--in particular, to link the court order or judgment to a specific, uniquely identifiable person. The concern is that if social security numbers and other private information can be obtained from public court records, identity theft can take place.
A member stated that the latest batch of protection order forms require identifying information such as social security numbers and birth dates to be placed on the first page of the form and that the current rules do not contain any exceptions that would allow this
information to be withheld.
A member explained the background of the request to modify the rule. The Court Technology Committee discussed the fact that the court system is being bombarded by requests from private companies for court data. The Court Technology Committee is looking at ways to provide the information and looking for guidance on how to protect confidential information in requested records.
The member suggested that the Committee and other interested committees take steps to protect the private information that the court system has control over. The member suggested that the Minnesota model be used as a first step to get moving on the issue.
A member commented that North Dakota's citizens frown on governmental agencies accumulating personal information and distributing it. The member noted that the federal government has created a complex and inclusive system to protect medical information. The member said that the court system should not be in the business of accumulating information and selling it--instead its priority should be to protect the information it gathers. The member said that the Vermont system appeared to make sense as a means of dealing with requests for court data, because it restricts mass distribution of court data.
A member stated that both bulk requests and individual requests can create the risk of identity theft if private information is released. The member said that, for example, identity thieves can monitor marriage notices and then request records related to the marriage license application (which must contain social security numbers) and obtain enough information to steal a person's identity.
A member said the private institutions like hospitals and newspapers had already put in place policies to protect private information. The member commented that the information possessed by the courts was at least as sensitive as the information these private institutions were protecting.
The Committee discussed legislation regarding privacy protection. Staff informed the Committee the legislature had been taking steps to increase protection of private information, but that legislators seemed to agree with court officials that protecting court information was the responsibility of the court system.
A member observed, for example, the Secretary of State's policy was to redact corporate financial information contained in records released to the public. The member said this policy was mandated by statute.
Several members indicated that there were legitimate reasons for the courts to gather personal information and to share this information, to a limited extent, with other public bodies such as the police. A member commented, however, that the real problem the courts were facing was the weight of outside data requests. The member said that there was a significant possibility that a large amount of personal information would go beyond the control of the courts in the process of responding to outside data requests.
The member observed that a great deal of information about matters filed with the courts is already accessible by computer and distributed on an individual basis by the court clerks. The member said that personal information is not excised from the material the clerks are distributing.
A member said that it is necessary for very specific personal information to be made part of divorce judgments so that there will be no confusion about the responsibilities and obligations of the parties. The member agreed that the public should not have access to this information--however, the member said any rule restricting public access must not restrict party access to the information. The member said that parties often need to obtain this information from court clerks and court files and they should not be restricted from obtaining this information.
A member said some of the proposed language for the rule restricting access to personal information was vague. The proposed language restricts access to a person's medical information, the member said, but in matters such as personal injury cases, that medical information is the crux of the whole case. A member said that in such cases, the party would waive the right to privacy in the information because they put their medical condition at issue.
Staff informed the Committee court policy forbade the court clerks from making any decisions on matters of substance, so any rule restricting access to information would have to delineate clearly what items were to be protected so the court clerks would not be required to make any judgment calls on releasing information.
A member who worked with the court clerks on a new manual for clerks commented that the clerks were very nervous about the prospect of having to go through records already on file and redact material. The member said that the volume of material on file with the court clerks is immense, and clerks would be required to go through it page by page if they are ordered by rule to limit access to personal information in the records.
The member said that the Minnesota approach, under which personal information is provided in a separate addendum that is withheld from release, is the approach preferred by
A member said there were situations where confidential personal information could not be protected, such as when jury members view (and possibly take notes on) exhibits containing confidential information.
A member said it was unlikely that the Committee could come up with a rule that would fix the problems created by personal information in court records. The member said it was likely that, if rules were put in place barring the release of personal information, the clerks would likely defer decisions on whether to release records to judges. The member said that it was unfair to place the burden of deciding what records to release on the clerks. The member said a rule that allow judges to make record release decisions based on their own discretion might be preferable to one that places the burden on the clerks.
Another member commented that such an approach would not solve any problems because there would be nothing to prevent a judge from deciding that parties requesting access to records could have access to everything but social security numbers, etc., and putting the responsibility to redact any personal information back on the clerks.
A member suggested that the rule should be limited to protecting social security numbers because such numbers are unique and cannot be easily changed even if compromised (unlike account numbers and credit card numbers). The member said that the Minnesota approach would be adequate for the time being because it would provide some protection for social security numbers.
A member said it would be necessary to have at least two rules: one rule to protect personal information submitted to the courts, another to put limits on bulk data releases. The member said that the Vermont approach seemed to be the most commonsense approach for bulk data transfers. The member said that the Committee should take the initiative in proposing rules to protect personal data because it was best equipped to draft an appropriate rule.
A member said that the Minnesota approach was useful to protect new data coming into the system, but that it provided no protection against confidential information already in the system from being obtained. The member said that the proposed amendments to Rule 41 seemed to be a fair starting point to protect documents in the system.
A member commented that if the Committee decided a rule protecting social security numbers was necessary, it would also be necessary to have a rule protecting any tax returns filed with the court because these contain social security numbers.
A member asked whether any other committees were looking at these issues. The Chair explained that the Court Technology Committee has taken a look at the bulk records issue and recommended to the Supreme Court that some group, possibly an ad hoc task force, look at the issue. The Chair said that an ad hoc committee could be a proper forum for groups with diverse and competing opinions to come together and devise an approach to the bulk records issue. The Chair said the Supreme Court had not yet acted on the Court Technology Committee's suggestions.
Staff explained that the Court Services Committee had been discussing how to protect personal information contained in court records and how to limit the future insertion of personal information into court records.
A member said that the Committee should look into any new statutes passed by the legislature dealing with the subject of protecting and/or limiting access to personal information. The member also said that, if the Committee decides to adopt the Minnesota approach and have parties submit personal information on a separate form, the Committee needs to make certain that the rule does not limit the access of court officials or law enforcement to that information.
The Chair suggested that limits on information or records the court clerks are allowed to release seemed to be within the realm of the Court Services Committee. The Chair said, however, that rules for what form information filed with the courts should take seemed an appropriate question for the Committee. The Chair said that the Court Technology Committee was involved with the issue of release of records because more and more records were being moved onto a single court system server.
Judge Leclerc MOVED to defer further amendment of the rule until staff brings a rule based on the Minnesota model back to the Committee. Mr. Kapsner seconded. The motion CARRIED 16-0.
A member observed that a rule based on the Minnesota model would be helpful, but it would have no impact on protecting the documents already in the system. The member said that the proposed revisions to Rule 41 seemed to be helpful and something the Committee should consider working on. The member suggested the definition of "personal information" be modified to include social security numbers, birth dates, and tax returns.
A member said that "medical information" was an ambiguous term and it would be difficult to limit release of such information. A member suggested that the Committee narrow its focus and concentrate on limiting release of information that would contribute to identity theft. The member said it would make sense to limit release of medical records as
opposed to medical information.
A member stressed that, whatever information the Committee chose to protect, it was important that parties be allowed to access all information related to their own cases.
The Chair suggested that staff be directed to prepare further modifications to Rule 41 that reflect the concerns expressed by the Committee. The Chair asked Committee members to direct any additional suggestions on the rule to staff.
Judge Leclerc MOVED to refer Rule 41 back to staff for modifications in line with the Committee's discussions. Mr. Sturdevant seconded. The motion CARRIED 16-0.
A member indicated that even the limited restrictions the Committee proposed were likely to be very burdensome to the clerks. The member noted that every traffic ticket contains a birth date. A member suggested that, with past documents, the burden should be on parties to request that social security numbers, etc., be expunged. The Committee's consensus was that addressing the problem of personal information contained in documents already filed was a very complex one.
A member said that the Committee might be overestimating the impact on the clerks of a rule restricting access to already filed information. The member suggested that the clerks do not often have to deal with random requests for files. The member said that if a reasonable bulk data transfer rule was established, this could head off problems clerks might face in limiting access to personal information.
The Chair asked whether the Committee should take any action on the bulk data transfer issue. A member suggested that an ad hoc committee composed of representatives from the Court Services Committee, the Court Technology Committee, and the Committee address this issue.
A member suggested that having a representative from the Attorney General's Office provide input would be a good idea because of the AG's long-term experience dealing with open records and confidentiality issues.
A member said that it would be inappropriate for anyone from the Committee to serve on an ad hoc bulk transfer committee because the subject is beyond the purview of the Committee.
A member said it would be wise for the court system to act on the confidentiality and data transfer issues before the next legislative session because of the risk that a records
release horror story might cause the legislature to impose a solution for the court system.
Mr. Kapsner MOVED to request that the Court Services Committee or another appropriate committee look into establishing restrictions on bulk transfers of court data. Judge Leclerc seconded. The motion CARRIED 16-0.
RULE 34, N.D. Sup. Ct. Admin. R. - RULE REGARDING DOMESTIC VIOLENCE ADVOCATES (PAGES 108-124 OF THE AGENDA MATERIAL)
Staff explained that the Committee had received a letter from a citizen raising gender equity and fairness concerns regarding Rule 34.
Judge Leclerc MOVED that the Committee note receipt of letters commenting on the rule and take no action to amend the rule itself. Judge Nelson seconded.
A member asked whether any member of the Committee understood the genesis of the complaints regarding Rule 34. A member explained that the citizen who submitted the complaint was active in the Grand Forks area, particularly in father's rights groups. The member said that the citizen made a valid point--Rule 34 does give a great deal of authority to the North Dakota Council for Abused Women's Services.
The member said that it was a problem that the rule requires advocates and treatment programs to be certified by NDCAWS. The member said that it was not necessarily wise that North Dakota has tied itself to one organization in matters related to domestic violence.
A member asked why the Committee was looking at the rule. The member observed that the Committee had not promulgated the rule and that the request to amend the rule should have gone to the committee that promulgated it. The Committee speculated on which committee generated the rule and concluded that it was likely the product of a task force.
A member suggested that staff be assigned to look at the history of the rule and determine what committee had generated it. A member agreed that it would be useful to have history on the rule.
A member said that the training part of the rule could perhaps be amended to allow an alternative to NDCAWS. Another member commented that the proposed amendment would not solve the problem raised by the concerned citizen.
A member explained that the rule was the product of a time when there was little
interest among attorneys in representing domestic violence victims, and that the Bar Association backed the rule because it understood victims needed assistance that attorneys were not available to provide. The member said that the other side of the issue was that alleged abusers also need representation.
A member said that the Bar Association debate about Rule 34 was very intense and strident and the rule was very narrowly drawn to create a very limited advocacy program for victims of domestic violence, not alleged abusers or anyone else.
A member indicated that if an advocacy group wanted to have a similar rule to serve their purposes, they were free to propose such a rule. A member said that the Committee could then look at such a proposed rule to assure that it was in proper form. The member said that the Committee should not take action on Rule 34.
Judge Bohlman MOVED to refer the rule to the Court Services Committee for further consideration. The motion FAILED for lack of a second.
A member explained that males often feel discriminated against in family law matters, particularly when an abuse or protection order issue is raised. The member said they often perceive that they have no rights. The member said that some committee should take a further look at Rule 34 in terms of general fairness on gender discrimination issues.
A member commented that there was nothing preventing a representative of a male group from being trained as a domestic violence advocate and appearing in court. Another member responded that they would have to become associated with NDCAWS to do this. A member said that males had done so and had become domestic violence advocates.
A member commented that use of the term "abused women" in NDCAWS' name creates a perception that the group served only women. A member indicated that Rule 34 perhaps could be rewritten in a gender-neutral way, even if the designated certifier under the rule ultimately turned out to be NDCAWS.
A member said that the rule was narrowly drawn to suit a specific need and that the rule had fulfilled that need. The member said that if another, related need arises in the future, and Rule 34 did not fulfill the need, then there might be a reason to amend the rule or create a new rule.
The motion to note the receipt of letters commenting on the rule and to take no action to amend the rule itself CARRIED 16-0.
RULE 21, N.D.R.App.P. - SUPERVISORY WRITS; AND RULE 40, N.D.R.App.P. - PETITION FOR REHEARING (PAGES 125-131 OF THE AGENDA MATERIAL)
Staff explained the Supreme Court Clerk had requested changes to Rule 21 and Rule 40 that would provide additional details on the form of writ petitions and petitions for rehearing submitted to the Court.
Judge Hagerty MOVED to send rules as amended to Supreme Court. Judge Leclerc seconded. The motion CARRIED 16-0.
RULE 43, N.D.R.App.P. - SUBSTITUTION OF PARTIES (PAGES 132-135 OF THE AGENDA MATERIAL)
Staff explained the Supreme Court Clerk had proposed changes to Rule 43 that would clarify procedure in cases where a party died after an appeal was filed.
Judge Schneider MOVED to send the rule as amended to the Supreme Court. Judge Leclerc seconded.
A member questioned whether the sanction of dismissal was needed to punish parties that failed to take substitution action, especially since the rule lacks deadlines for taking action to substitute.
Mr. McLean MOVED to delete the sentence on lines 12-14. Ms. Moore seconded.
A member said that dismissal was not mandatory under the rule if a party failed to substitute--instead, the court merely had the option of imposing dismissal as a sanction. A member responded that such a sanction did not exist under the federal rules.
A member said that in cases where significant sums are involved, multiple parties might want to be substituted for the deceased, and it might take time to work this out. A member commented that 90 days is allowed for substitution of parties in civil actions, and dismissal is required if the party is not substituted by the deadline.
The motion to delete the sentence on lines 12-14 FAILED 7-8.
Judge Hagerty MOVED to add "within 90 days of filing a suggestion of death with the court" to line 13. Mr. McLean seconded.
The motion CARRIED 16-0.
A member raised the point that the proposed dismissal sanction language could give a "win" on appeal to an appellee who dies. A member commented that sometimes an appellee's death will resolve the matter and allowing the court to resolve the matter as it deems appropriate was adequate.
A member asked whether the problem of an appellee dying would exist in a criminal case. Another member responded that if a restitution award had been ordered, there would be a claim against the estate. A member said that the rule should make clear whether there could be a dismissal if an appellee dies.
The Committee discussed language options.
Judge Bohlman MOVED to add language "decedent appellant's" to line 13. Mr. Sturdevant seconded.
A member said that when an appellee dies, someone must be substituted. Another member said when an appellee dies, the burden is on the appellant to decide whether to go forward or to seek dismissal. The member said if the appellee has something to fight about, a party would be substituted.
A member said that the rule allows either party to apply for appointment of a personal representative regardless of which party dies. A member said that an appellant should be allowed to carry out an appeal even when the appellee dies, regardless of whether a substitution is made, because if the appellant prevails the appellant would have a claim against the estate.
The motion to add language CARRIED 15-1.
Mr. Kapsner MOVED to remove lines 12-14 and to reinstate part of lines 11-12. Mr. McLean seconded. The motion CARRIED 12-4.
The motion to send the rule to Supreme Court CARRIED 15-1.
The meeting recessed at approximately 4:00 p.m., April 24, 2003.
April 25, 2003 - Friday
The meeting was called to order at approximately 9:00 a.m., by Justice Dale V. Sandstrom, Chair.
RULE 5, N.D.R.Crim.P. - INITIAL APPEARANCE BEFORE THE MAGISTRATE (PAGES 136-148 OF THE AGENDA MATERIAL)
Staff explained Judge Frank Racek had requested that Rule 5 be amended to eliminate the preliminary examination requirement in situations where probable cause was established by other means.
Judge Leclerc MOVED to send the rule as amended to the Supreme Court. Judge Simonson seconded.
A member commented that having preliminary examinations is valuable, even when waived, because the waiver is often given in tandem with a plea agreement. The member said that the requirement for having a preliminary examination is something that brings the parties together and allows resolution of various issues.
A member indicated that the proposed rule language put too much of a burden on defendants to request preliminary examinations at the initial appearance, when they might not be represented. The member said a system where preliminary examinations were only available upon request might work, but that the proposed language was not workable.
A member said that if preliminary examinations were available on request, defense attorneys would likely request them every time and not withdraw their requests until all discovery material was produced. The member said that, under the existing rule requiring preliminary examinations, the state has an incentive to freely produce discovery material and the state might not be as accommodating in doing so without the preliminary examination requirement.
A member said that Judge Racek had hoped the Committee could establish a rule making preliminary examinations non-mandatory where probable cause is established by affidavit in the arrest warrant or information. The member said this is always the case in Cass County. The member said that Judge Racek and Cass County wanted the ability to make preliminary hearings optional.
The member said that, under the system Judge Racek envisioned, a defendant would
have the opportunity to ask for a preliminary examination at any time before the deadline for making motions. The member said that the preliminary hearing in such a case could be made part of an omnibus hearing, where motions would also be considered (as is common practice in Minnesota).
The member said that, at present in Cass County, if 25 preliminary hearings are scheduled in an afternoon, probably 24 will be waived. The member said that the non-waived hearing likely would have a single police witness in attendance reading from the (non-admissible) police report. The member said that there had to be a way to eliminate the wasted time and resources inherent in the preliminary examination process.
The member said that, to put the Cass County proposal into action, the rule could contain language providing "In counties where there is established probable cause by the issuance of an arrest warrant or information supported by affidavit, there need not be a preliminary hearing."
The Chair said that the member's comments pointed out the wisdom of having those who suggest changes to the rules provide the specific proposed language for such changes to the Committee.
A member said that the preliminary examination requirement should not be eliminated. The member said it was an important right. The member suggested that perhaps Cass County's system of scheduling preliminary examinations in blocks of 25 was a problem and that perhaps Cass County should look at changing this.
The member suggested that allowing a single police witness, unrelated to the case, to establish probable cause was improper and created a worthless hearing. The member said his practice was to do preliminary hearings in 24 out of 25 cases, rather than to waive them. The member commented that the proposed provision was flawed because it did not protect unrepresented defendants and because it did not allow for waiver once the hearing was requested. The member said that the proposal to eliminate the preliminary hearing requirement should be rejected.
A member said the majority of preliminary hearings were waived, especially when defendants are represented by court appointed counsel. The member said arraignment was generally conducted in conjunction with preliminary hearings or at the time set for the preliminary hearing if that is waived. The member said that his district did not block schedule preliminary hearings.
A member said a judge's main concern at a preliminary hearing was whether probable
cause existed, and that a prosecutor's main concern was presenting enough evidence to establish probable cause. The member said that the rules allowed a single police officer to testify to establish probable cause. The member said it was defense counsel's responsibility to summon additional witnesses if defense counsel wanted to use the preliminary hearing to explore the evidence in a deeper manner.
The member said that, because the Supreme Court has stated that preliminary examinations can be used as a discovery device, judges must take this into account and allow the defense counsel to use the proceeding for this purpose.
A member indicated that preliminary examinations are waived in 4 out of 5 cases in his district. The member said that the rule as it stands worked well and allowed good defense attorneys the opportunity to explore issues when the preliminary examination was not waived.
The member said that if preliminary hearings were made optional as proposed, the result might be more wasted time. The member said that defense attorneys were likely to request preliminary hearings in all cases just to cover themselves, especially if they are allowed to make such requests up to the deadline for motions. Then, preliminary hearings would have to be scheduled to take place at some later point in the proceedings, and, if waived at that point, overall resolution of the matter may be delayed.
A member said that, even though most preliminary hearings are waived, when they are held they give a good opportunity for judges to cross-check their initial decisions by having another judge handle the preliminary examination. The member said judges very rarely find an absence of probable cause, but that attorneys will not ask for a preliminary hearing unless there is a reason for it, such as a suspicion of no probable cause. The member said that preliminary hearings do serve a purpose.
The member said a system of having a scheduled special proceeding for preliminary examination waivers was useful: the member said that preliminary examinations can be scheduled after the defendant has made a waiver decision at the waiver proceeding.
A member said that in Cass County, mass waiver of preliminary examinations causes problems because preliminary examination hearings are scheduled at the initial appearance in all cases and waiver does not take place until shortly before the scheduled hearing, which means that police and others who have been required to show up for the hearing then have to be sent away. The member said that it was very rare in Cass County for a defense attorney to use a preliminary examination for a useful purpose, such as for discovery.
A member asked whether a local rule requiring waiver seven days in advance of the scheduled hearing would solve the Cass County problem. Another member responded that a proliferation of local rules was a problem, but that such a rule could help.
A member indicated that a system such as that used in Grand Forks, where plea agreements (for example) are required to be completed by a deadline could be useful. Parties who do not meet the deadline are subject to sanctions.
A member said that no justification had been presented for the proposed change aside from convenience. Another member responded that, yes, the proposed change was for convenience but for the convenience of a large group of people including appointed defense attorneys and public defenders.
A member pointed out that the preliminary examination is a state substitute for a grand jury proceeding, giving the defendant the opportunity to test probable cause independent of the initial complaint. The member said that eliminating the North Dakota preliminary examination requirement to embrace a rule more like the federal rule would be inappropriate given the different system in place in North Dakota.
A member said that preliminary hearings can serve useful functions. The member said defense attorneys use them for discovery and preserving testimony when appropriate. The member said that the proposed amendment would not serve the convenience goals that Judge Racek was seeking to achieve through his suggestions.
The Chair said that the Committee's discussion seemed to show that the underlying problem was not the preliminary hearing requirement itself but the fact that those who choose to waive their right to a preliminary hearing do not waive in a timely manner. The Chair indicated that if anyone wanted to submit specific proposals to address the late waiver problem, the Committee would be receptive.
A member commented that one way to stop the late waivers was to give judges some power to impose sanctions on those who do not waive in a timely manner. The member said that making preliminary hearings optional would not solve the late waiver problem because defense attorneys would still likely request preliminary hearings in most cases, knowing that they could be waived as the case progressed further.
The motion to send amended rule to Supreme Court FAILED 1-17.
ORDER 15, N.D. Sup. Ct. Admin. R. - INTERACTIVE TELEVISION PROJECT--SOUTHEAST JUDICIAL DISTRICT (PAGES 149-162 OF THE AGENDA MATERIAL)
Staff explained that the Supreme Court had adopted Order 15 and submitted it to the Committee for review and revision, if necessary.
A member commented that this was the third ITV rule the Committee had addressed. The member said that the SEJD planned to use ITV equipment that had been moved to Jamestown from Mandan in the SCJD. The member said that the use of ITV in the SEJD would be unique because the hearings would not involve people at rural sites communicating with the Jamestown courthouse, but interaction between the State Hospital and the Jamestown courthouse.
The member said, however, that even though the state now has three ITV rules, none are being used. The member said the rule is not being used in the ECJD because the problem of obtaining waiver of the person's right to an in person proceeding keeps coming up. The member said waiver is especially a problem in mental health cases, because a mental patient cannot make a knowing waiver.
Another member responded that a person who is mentally ill is not necessarily legally incompetent to make a waiver decision.
A member commented that, under the pilot project, it was envisioned that witnesses, not just mental health respondents, could testify from the State Hospital in mental health proceedings. A member added that, while initial hearings for mental health patients are held all around North Dakota, treatment hearings and other follow-up proceedings for State Hospital patients are all held in Jamestown.
A member asked why we would have a pilot project that has been authorized but not up and running. A member explained that technical difficulties--obtaining the equipment and getting the equipment to work--were the primary reasons.
Mr. Kuntz MOVED to postpone discussion of the rule subject to the SEJD gaining more information on how the rule worked in practice.
A member said that the rule would not be put into action until the equipment problem was solved. The member observed, however, that there were obvious problems with the rule that the Committee could deal with.
The motion to postpone WITHDRAWN without objection.
Judge Simonson MOVED to amend the rule's objection provision on lines 33-34, 35, and 37 and to delete lines 40-43. Mr. Sturdevant seconded.
A member said that the making of an untimely objection to use of ITV should be grounds for a continuance. A member observed that mental health respondents have a substantive right to have a mental health hearing within a given time and the proposed amendment takes away that right in cases where an untimely objection is made.
A member said that the right to a timely hearing would only be taken away if the respondent failed to act in a timely manner. Another member observed that the practical effect of allowing a continuance when untimely objection is made to the use of ITV is that the respondent would have an in person hearing as soon as one could be scheduled.
A member observed that a later portion of the rule, requiring consent before an ITV proceeding could take place, seemed to be in conflict with the objection portion of the rule being discussed. The member said that under the consent provision, the question is not whether the respondent timely objects to the ITV proceeding, but whether the respondent consents at all. The member said that the rule seemed to require a positive consent before ITV could be used.
A member said it was cause for concern that the rule required notice to a respondent and required the respondent to object to ITV, rather than requiring a waiver from the respondent. The member said it was not proper to put the burden of objection to ITV on parties facing a lot of problems in their lives.
The Chair commented that, in order to resolve the inconsistency in the rule, the Committee should decide whether to eliminate the provision allowing objections to ITV or the provision requiring consent.
A member said that removing the objection provision would be preferable because if an attorney failed to object, it might amount to malpractice. A member suggested that the objection provision could be removed in its entirety.
The motion to amend the objection provision was WITHDRAWN without objection.
Judge Hagerty MOVED to delete lines 33-42, to renumber line 43, and to delete "objection" on line 26. Mr. Kapsner seconded.
A member said that the notice provision also needed to be amended to remove reference to the right to object. The Committee discussed appropriate modifications.
Mr. Kapsner MOVED to amend the pending motion to include deletion of additional language in lines 29-30. Without objection, the motion was CONSOLIDATED with Judge Hagerty's motion.
A member asked whether the notice would go out before or after the party consented. The member asked at what point the party would be asked to give consent. Another member asked who would be giving the consent, the attorney or the party. The member said the consent procedure needed to be worked out.
A member said that ITV is a useful procedure that can save the courts, attorneys and parties a lot of expenses and travel time. A member said that the entire procedure could be recorded by using the ITV broadcasting system, but that generally ITV proceedings were not completely audio and video recorded--instead a reporter would take everything down.
A member commented that the form of the rule was confusing regarding what sort of consent was required before an ITV proceeding and that language could be added to clarify the consent procedure.
A member suggested that the notice of hearing should inform the party that the hearing may proceed via ITV, but that this cannot take place unless the party consents.
The motion to delete language and amend CARRIED 13-2.
A member wondered about the notice provision. The member proposed that language indicating that respondent consent requirement should be noted upon the notice of the ITV proceeding.
Judge Schneider MOVED to amend lines 28-29 to clarify the notice and consent procedure. Ms. Moore seconded. The motion CARRIED 16-0.
A member explained the logistics of holding a mental health proceeding by ITV. The member said that the primary dispute in a mental health proceeding is always between the respondent and the psychiatrist. The ITV connects the attorneys and the court with the respondent and the psychiatrist, who are generally in the same room at the State Hospital. The member commented that there had never been any law enforcement present at such proceedings in the past.
The rule as revised is to be transmitted directly to the Supreme Court.
RESIGNATION OF JUDGE HILDEN
The Committee honored Judge Hilden with the presentation of a plaque. Judge Hilden leaves the Committee after serving from 1986-2003. The Chair thanked Judge Hilden for his long service.
RULE 7.1, N.D.R.Civ.P. - DISCLOSURE STATEMENT; RULE 12.3, N.D.R.Crim.P. - DISCLOSURE STATEMENT; AND RULE 26.1, N.D.R.App.P. - CORPORATE DISCLOSURE STATEMENT (PAGES 163-172 OF THE AGENDA MATERIAL)
Staff explained that the federal government has now adopted corporate disclosure rules to assist judges in determining conflicts of interest and that the North Dakota rules being proposed were based on the federal models.
Mr. McLean MOVED to adopt rules. Judge Foughty seconded.
A member said that he had recently been required to comply with this rule on a federal appeal and he believed it was a lot of unnecessary paperwork. The member said that, in most cases, the forms have to be filled out in the negative, explaining that there were no parent corporations or corporations owning more than 10% of the corporate party. The member said the proposed rules were unnecessary.
A member said that, while the rules may have their place in the federal system, there was no need for such disclosure requirements in North Dakota.
A member said a problem with the proposed rules was that they did not exempt non-profit corporations. The member said that, under the proposed rules, any hospital or nursing home involved in a case would have to identify its parent even though there was no possibility of any conflict of interest. The member said that if the proposed rules were adopted, non-profits should be exempted.
A member asked whether any problems had occurred because of judges' lack of knowledge of corporate ownership. The member said he had not heard of any. A member said that sometimes judges do not realize who all the related entities are in a matter until they see a lot of material in the case.
A member said the rules could be useful because the Code of Judicial Conduct requires automatic disqualification if a judge has an economic interest in a party. A member explained that the conduct rule was so strong as to require disqualification of a mere shareholder.
The motion to send the proposed rules to the Supreme Court FAILED 4-12.
RULE 2, N.D.R.Crim.P. - PURPOSE AND CONSTRUCTION (PAGES 173-176 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to Rule 2, which is part of the Criminal Rules Package. The Chair explained that the Committee would not send the Criminal Rules Package on to the Supreme Court until the Committee's review of the criminal rules was complete.
Judge Geiger MOVED to make the rule as amended part of the Criminal Rules Package. Professor Bata seconded.
A member asked about the contrast in language between the proposed rule and the equivalent civil rule, which uses "shall" in a mandatory form. The member asked whether "must" should be used in the proposed rule as a directive on how the rules are to be interpreted.
The Chair explained that, in accordance with legislative style, "shall" is only used when a duty is placed on a specific actor--in a more passive structure, "must" would be used. The Chair said that if the Committee chose to amend the proposed rule in the manner suggested, "must" would be the term to use.
Without objection, the Committee decided to change capitalized "Rules" on line 4 to lowercase "rules" consistent with capitalization conventions for general terms in the rules.
A member commented that "expense," unjustifiable or not, should not be a consideration in the interpretation of a criminal rule.
Mr. Kapsner MOVED to delete language on line 6 regarding "expense." Mr. McLean seconded.
A member said that the Committee should be opposed to unjustifiable expense, even in criminal cases. Another member commented that, for example, a pro se defendant may
wish to subpoena a witness in a distant location to travel to testify at trial--without the "unjustifiable expense" provision, the defendant conceivably would not have to justify such a measure.
A member said that the "unjustifiable expense" language also protected the defendant from being exposed to unreasonable expenses because of actions by the state.
The motion to amend FAILED.
The motion to include the rule in the Criminal Rules Package CARRIED unanimously.
RULE 3, N.D.R.Crim.P. - THE COMPLAINT (PAGES 177-180 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to Rule 3, which is part of the Criminal Rules Package.
Mr. Kuntz MOVED to make the rule as amended part of the Criminal Rules Package. Judge Nelson seconded.
A member wondered why "recording equipment" was changed to "court recorder." The member said that judges often have to record criminal proceedings themselves, without assistance from reporters or recorders.
Judge Nelson MOVED to amend the language on line 12 to restore the reference to "recording equipment." Judge Geiger seconded.
Several judges on the Committee said that they needed the option of recording proceedings themselves without a court recorder or reporter. One member said that sometimes police do the recording of the proceeding when necessary at night or on weekends.
A member suggested modification of the amendment to include "court recorder" to recognize that court recorders have an important job.
A member asked why it was necessary to include the words "court recorder" since a court recorder would be using recording equipment, just like a judge or police officer might. The member indicated that using the term would be redundant.
Judge Foughty MOVED to amend the proposed amendment to add the term "court recorder" to the language. Judge Geiger seconded. The motion CARRIED 12-4.
Judge Schneider MOVED to amend the proposed amendment to delete the language after "recorded" on line 12, eliminating reference to reporters, recorders and recording equipment. Mr. Sturdevant seconded. The motion CARRIED unanimously.
The amended motion CARRIED unanimously.
A member commented that, for those unfamiliar with the federal criminal rules, it would be useful to see what amendments had been made to the parallel federal rule as the Committee continues the process of reviewing the state rules. The Chair agreed it would be helpful in the future for the Committee to see a legislative copy of the parallel federal rule.
A member asked whether anyone was in the practice of reducing statements to writing, one option under the rule. A member responded that sometimes affidavits were submitted in small scale cases. Another member commented that it was unlikely that any hearings were being held and then reduced to writing.
A member suggested that the writing option existed as an alternative when no other method of recording was available. A member recommended amendment of the language to clarify when the writing option would be used.
Mr. Mack MOVED to strike "to be" on line 11. Professor Bata seconded. The motion CARRIED unanimously.
The motion to make the rule part of the Criminal Rules Package CARRIED unanimously.
RULE X, N.D. Sup. Ct. Admin. R. - CIVIL CASE MANAGEMENT; RULE 16, N.D.R.Civ.P. - PRETRIAL CONFERENCES; SCHEDULING; MANAGEMENT; RULE 26, N.D.R.Civ.P. - GENERAL PROVISIONS GOVERNING DISCOVERY; AND RULE 40, N.D.R.Civ.P. - ASSIGNMENT OF CASES FOR TRIAL (PAGES 181-219 OF THE AGENDA MATERIAL)
Staff explained that the Supreme Court had received a case management rule proposal from the Council of Presiding Judges and that the Supreme Court had referred the proposal to the Committee for review and revision.
The Chair explained that the Supreme Court had concluded that the administrative scheduling rule as proposed by the presiding judges would not work because parts of it belonged in the civil rules, where attorneys generally look for guidance on procedure. The court decided that the rule needed to be reviewed, revised, and rewritten to assure that its provisions were placed in proper locations within the rules.
The Chair commented that the revisions made so far by staff needed additional work and input from the Committee to assure that none of the triggering provisions for scheduling conferences or other scheduling related events were in the administrative rules.
The Chair commented that the list of case types to which the scheduling rules were intended to apply was somewhat confusing and appeared to encompass all types of cases. The Chair said that material on the scope of cases to which the scheduling rules applied belonged in Rule 16 or in other civil rules as appropriate.
A member explained that after the Committee rejected proposed scheduling measures in April 2002, the Case Management Committee redrafted its scheduling proposals into an administrative rule and presented it to the presiding judges. The presiding judges sought comments from the district judges and met again to discuss the rule.
The member commented that concerns were raised with the presiding judges that, by placing the scheduling provisions in an administrative rule, lawyers would be forced to be looking all over the rules for provisions applicable to practice and procedure involving case management. The presiding judges indicated that this should be addressed.
The member also said that judges and court staff had submitted many good comments to the presiding judges regarding the scheduling proposal. For example, one judge suggested that some triggering events be integrated into the rule so that not every case would be dumped into the scheduling system. The member said that the presiding judges decided to send the proposal to the Supreme Court.
The member said he continued to believe that an administrative rule was not an appropriate vehicle for the scheduling rule. The member said it would be useful for the Committee to take a look at the comments that had been submitted to the presiding judges.
A member said that the lack of a triggering method in the proposal was a problem. The member said that for case management to work, it must begin when the case is initiated, especially when there are deadlines to complete the case. The member also said that, under North Dakota law, most work on a case could be completed before it is filed, which makes case management afterwards not very useful.
The member said that if a scheduling conference and court controlled scheduling were to be made mandatory, it should also be mandatory that the lawsuit be filed immediately when commenced, which is not required under North Dakota's rules.
A member said that, under Rule 16, any party can request a scheduling conference if the party thinks one is necessary. The member asked why it would be necessary to have an outside mechanism to mandate scheduling conferences when any party can request one under the current system. The member said that adopting a mandatory scheduling mechanism would create additional expenses and burdens for parties.
A member said that the proposal would also create a lot of busy work for a lot of judges. The member said that the proposed list of cases for which a scheduling conference is mandatory is unnecessarily broad.
A member observed that mechanisms already existed for the courts to dismiss stale cases, so the proposed case management system is unnecessary.
A member said that the court's decision to give the Committee the task of revising this rule put the Committee in a difficult position because the Committee has repeatedly expressed its objections to a formal case scheduling system. The Chair explained that the Court needed the Committee to work on the rule because adopting the rule in the form offered by the Presiding Judges would create many problems for practitioners in North Dakota.
The Chair said the Committee's task was to put the rule in the best form possible so that the Court could gather additional comments and decide whether to adopt it.
A member said that it was legitimate for the Committee to look at the civil rules related to scheduling and case management to see if they could be improved. The member said, however, that it was unlikely that the scheduling rule amendments the Committee is likely to produce are unlikely to resemble anything submitted by the presiding judges.
A member said the presiding judges did not necessarily support adoption of a particular scheduling rule. The member said, instead, that the presiding judges wanted to have the Supreme Court consider the idea of a scheduling rule. The member said the Case Management Committee brought the rule to the presiding judges in the form of an administrative rule because they knew that the presiding judges had jurisdiction to consider administrative rules.
The member said that it was scary to think that scheduling rules could be hidden in
the administrative rules because of the confusion this would cause attorneys practicing law. Therefore, the presiding judges decided to move the proposal up to the Supreme Court for their consideration. The member said that the presiding judges did not necessarily want the scheduling proposal adopted, but they wanted it considered to put the issue to rest for awhile.
A member said that it would be reasonable to implement some docket currency measures into the rules, such as the measure now employed by some districts to seek dismissal of stale cases that have been on the docket for a year. A member said that in the South Central Judicial District, the administrator requires parties involved in stale cases to submit proposed scheduling orders if they desire to avoid dismissal. The member said that the judge is in a better position to decide whether a conference is needed if the judge can look at a proposed scheduling order.
A member said that requiring the parties to meet in a Rule 16 conference after a year's inactivity would be a reasonable measure. Another member commented that the courts and parties already have the power to do this under existing rules and administrative practices.
A member said that the issue of civil scheduling comes before the Committee almost every year and the Committee has consistently rejected measures seeking additional scheduling rules. The member said that the Committee and the those seeking additional scheduling rules seem like two ships passing in the dark--the Committee may not understand the problem as perceived by the scheduling rule backers and the rule backers also do not seem to understand the Committee's position.
The Chair said the Committee would have the opportunity to work on the scheduling rules at the September meeting and put them in the best form possible.
A member said that the North East Central Judicial District does have a scheduling and tracking system in place now. The member said that the system has been working out well and may save the parties time and give them a better understanding of how the case may progress. The member said that the concept was good, but the idea of putting the scheduling mechanism in the administrative rules was wrongheaded.
A member said there was no problem with hands on case management and scheduling once a case gets filed--the member said that the act of filing is an indicator that the parties are ready to move forward on the matter. The member said a scheduling system needed to be flexible to take into account the work that had been completed prior to filing. The member said that just taking the federal scheduling system and importing it into North
Dakota's rules would not work because the federal scheduling mechanism starts up when filing commences a case, which is not the commencing act in North Dakota.
The member said the federal system of having the parties meet and produce a report and then go to a scheduling conference to have that report turned into an order was wasteful and duplicative. The member said that a North Dakota scheduling system needs flexibility that is consistent with the North Dakota style of practice.
A member said that flexibility could be attained by: rejecting the administrative rule format; putting triggering mechanisms into Rule 16; and excluding reference to Rule 26. The member said developing appropriate triggering mechanisms consistent with current practice would be the key.
The discussion of proposed case management rules was tabled until the September 2003 meeting.
The meeting adjourned at approximately 12:00 noon, April 25, 2003.
Michael J. Hagburg