MINUTES OF MEETING
Joint Procedure Committee
April 26-27, 2007
TABLE OF CONTENTS
Rule 3, N.D.R.Civ.P., Commencement of Action 2
Rule 4, N.D.R.Civ.P., Persons Subject to Jurisdiction-Process-Service 6
Rule 5, N.D.R.Civ.P., Service and Filing of Pleadings and Other Papers 10
Rule 12, N.D.R.Civ.P., Defenses and Objections-When and How Presented-By Pleading or Motion-Motion for Judgment on the Pleadings 10
Rule 16, N.D.R.Civ.P., Pretrial Conferences; Scheduling; Management 11
Rule 26, N.D.R.Civ.P., General Provisions Concerning Discovery 12
Rules 30, 31, 33, 34, 36, N.D.R.Civ.P., Discovery Methods 12
Rule 40, N.D.R.Civ.P., Assignment of Cases for Trial 14
Rule 8.3, N.D.R.Ct., Case Management (Divorce Cases) 15
Order 16, N.D. Sup. Ct. Admin. R., Electronic Filing Pilot Project for the District Courts 16
Rule 32, N.D.R.App.P., Form of Briefs, Appendices and Other Papers 18
Order 14, N.D. Sup. Ct. Admin. R., Electronic Filing Pilot Project 18
Rule 5, N.D.R.Civ.P., Service and Filing of Pleadings and Other Papers 19
Rule 17, N.D.R.Crim.P., Subpoena 22
Rule 32.2, N.D.R.Crim.P., Pretrial Diversion 23
Rule 2.1, N.D.R.App.P., Mental Health Cases 27
Rule 14, N.D.R.App.P., Identity Protection 28
Rule 28, N.D.R.App.P., Briefs 29
Privacy Protection for Filings Made with the Court 31
CALL TO ORDER
The meeting was called to order at 1:00 p.m., on April 26, 2007, by the Chair, Justice Dale Sandstrom.
ATTENDANCE
Present:
Justice Dale V. Sandstrom, Chair
Honorable Donovan Foughty
Honorable M. Richard Geiger
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Honorable Debbie Kleven
Honorable David W. Nelson
Honorable Allan L. Schmalenberger
Honorable Thomas J. Schneider
Mr. Larry L. Boschee
Mr. Daniel Dunn
Mr. Daniel S. Kuntz
Mr. Galen J. Mack
Ms. Jeanne L. McLean
Mr. Ronald H. McLean (Thursday only)
Ms. Joanne Hager Ottmar
Mr. Steven W. Plambeck (Thursday only)
Mr. Bruce D. Quick
Absent:
Honorable Georgia Dawson
Honorable John Greenwood
Honorable Michael G. Sturdevant
Ms. Cathy Howe Schmitz
Staff:
Mike Hagburg
PRELIMINARY MATTERS
The Chair discussed the schedule for the meeting and reviewed the schedule for future meetings.
Mr. Boschee requested the word "procedural" on page 5 of the minutes be changed to "substantive." With unanimous consent, the requested change was made. Judge Kleven MOVED to approve the minutes as corrected. Judge Geiger seconded. Motion CARRIED unanimously.
RULE 3, N.D.R.Civ.P. - COMMENCEMENT OF ACTION (PAGES 21-28 OF THE AGENDA MATERIAL)
Staff explained the Committee had discussed the potential ramifications of changing to a system of commencement by filing in North Dakota at the September 2006 and January
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2007 meetings. Staff said the Committee's continuing discussions would be the basis for a report the Supreme Court had requested on the issue. Staff said several attorneys had submitted comments to the Committee regarding objections to a change to commencement by filing.
Staff explained the version of Rule 3 before the Committee was based on the federal version and the question on the rule was whether this version should be presented to the Supreme Court as part of the Committee's report.
The Chair explained that the Supreme Court, in its request for a report on the question of commencement by filing, was seeking not only an opinion from the Committee on the issue but the preparation of rule amendments that would be necessary if commencement by filing was implemented. The Chair explained seeing the amendments was important so the Court could understand the scope of the changes needed if commencement by filing was implemented.
A member said the attorneys who had submitted concerns regarding the possible change to commencement by filing raised some valid issues. The member pointed out that the attorneys stated that there are cases commenced by service the courts never see and that these cases are substantial in number. The member said this was a believable statement. The member said if there are a substantial number of cases out there currently commenced by service, and if filing of these cases is required, just by this action the clerks of court will have a lot more work handling these files.
The member said many of these files will be added to the files the court currently gets that become default cases, and the courts will need to get involved in handling these files. The member said if commencement by filing is adopted, there likely will be a significant increase in the work done by clerk of court offices.
A member responded there are many cases where attorneys send out a summons and complaint as a collection tool. The member said, however, that while attorneys tend to complain about the possibility of any change in the system, they are also very creative in coming up with ways to deal with change once it happens. The member said it was likely that, under commencement by filing, attorneys would only file suits they wanted to bring to judgment. The member said creditors' attorneys could use tactics like obtaining a Rule 68 confession of judgment and then negotiating a payment schedule with the debtor, with the action and confession of judgment only to be filed if the payment schedule was not fulfilled. The member admitted it was likely clerk's offices would see more activity if commencement by filing was adopted, but the increase was not likely to be overwhelming.
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The member asked why the court would not want to know that people are commencing actions. The member said people were using the court to collect debts, and using the name of the court to help collect debts, and the court should know what is going on in their name.
A member responded it was not a problem that attorneys commence actions without the court knowing about it immediately. The member said the law has long allowed this. The member said a more bothersome issue was the discovery practices attorneys engage in before actions are filed. The member said the court can only react to these because the court has no knowledge of the action or status of discovery until a problem is brought to the court.
A member said problems related to payment over time in collection actions sometimes arise and the member doubted that court staff wanted to get involved in monitoring these. The member said commencement by filing would also create privacy issues in collection actions and family law cases. The member said allowing matters to be worked out in private before a divorce or collection matter without the action needing to be publically filed can encourage settlement.
A member said rules requiring court involvement in cases at a certain point are acceptable because lawyers can withhold filing of cases until the parties are ready for court involvement. The member said implementing commencement by filing would require courts to get involved with cases prematurely.
The Chair asked how many states use commencement by filing. Staff responded that at least 40 states use pure commencement by filing, with only four states using pure commencement by service and the remainder using hybrid systems of commencement.
A member said recent rule changes have led to more active involvement by the courts in actions through pretrial conferences and supervision of discovery. The member said if all the currently non-filed cases are brought in there will be an impact on the court system because extra supervision will be required. The member said more court resources or changed procedures would be required to deal with the new cases that would be brought into the system.
The Chair asked whether anyone knew what the procedure was in other states in dealing with collection actions. The Chair suggested collection actions might not need to be filed in order to get the debtor's attention--a notice of intent to file could be served. The Chair suggested that more research needed to be done on what other states do with collection actions.
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The Chair noted there are complicated procedures in the rules, such as the demand to file a complaint procedure, that exist only because North Dakota has retained commencement by filing. The Chair also observed that, as the state moves toward increased electronic filing, commencement by service will create further complications.
Staff explained one method under commencement by filing to deal with simple cases would be to move them into a different track than more complex cases, allowing them to be handled in an expedited manner by the court system. Staff said such a tracking system had been suggested for North Dakota several years ago.
A member said if a system of commencement by filing is adopted, litigators would have an option of using filing as a club. The member said the complaint would not have to be filed to get couples to confront their marital problems or to convince debtors to work out their credit problems. The member said lawyers could serve a courtesy copy of the complaint and threaten to file it if the parties could not work something out.
The member said it is not uncommon in medical malpractice matters to serve a courtesy copy of the complaint and then defer the answer so that the matter can resolve. The member said entering into a tolling agreement is possible if the statute of limitations is a concern.
The member said the problem of serving parties after filing the complaint was addressed by proposed changes to Rule 4 that would require service within a given time before the action can continue.
The member said the alleged increased cost involved under a system of commencement by filing could be addressed by having a staggered system of filing fees. The member said if the matter is one that will be resolved by default, there could be a lower filing fee.
A member responded that from the point of view of a party or client, commencement by service was preferable and there were no arguments to be made in support of a switch to commencement by filing. The member said there was no reason why an individual party or client would want commencement by filing.
Judge Kleven MOVED to include the Rule 3 proposal in the report to the Supreme Court. Judge Foughty seconded. Motion CARRIED unanimously.
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Staff explained that several amendments would need to be made to Rule 4 if North Dakota switched to a system of commencement by filing. Staff said the proposal before the Committee contained changes based on the federal rule.
Judge Kleven MOVED to include the Rule 3 proposal in the report to the Supreme Court. Judge Foughty seconded. Motion CARRIED unanimously.
A member said the federal courts allow waiver of service, as suggested in the Rule 4 proposal, but the waiver of service procedure was not used often. The member said North Dakota allows several inexpensive means of service and waiver of service may not be necessary.
The member said if North Dakota adopts a system of commencement by filing there needs to be a time limit for service of the summons. The member observed the state has a six-year statute of limitations on torts. The member said under proposed Rule 4(n), a plaintiff could file an action on the last day of the limitations period and then not serve the summons and complaint until 180 days later. The plaintiff could then get an extension of the service period with good cause. The member said it would be preferable to amend the proposal to shorten the time frame for service or to eliminate the possibility of getting an extension in order to ensure the summons and complaint were served in a timely manner.
A member said even if the rules were amended to switch to commencement by filing, N.D.C.C. § 28-01-38 would remain on the books. Under this statute, compliance with the limitations period is calculated by when an action is served, not when it is filed. The member pointed out the statute makes some allowances for extension of service time, as when the sheriff is used to serve the summons and complaint.
A member said there was an issue whether N.D.C.C. § 28-01-38 was substantive or procedural. Staff said under the Rule 3 proposal approved by the Committee, the statute is designated as superseded. A member responded that the 8th Circuit had treated N.D.C.C. § 28-01-38 as substantive in a federal diversity case, so superseding it may not be appropriate.
A member said that, if a change is made to commencement by filing, some limit must be put on the time allowed for service after filing so the defendant has some notice that a case has been commenced. The member said the question was, if a party already has six years to commence an action, how much more time should be allowed for service? The member said the time allowed by the Rule 4(n) proposal seems too long and some sort of mechanism
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needs to be put in place to encourage earlier service of the summons and complaint.
Mr. Kuntz MOVED to delete proposed new language on waiver of service, striking from page 34, line 72, to page 36, line 106. Mr. Boschee seconded.
A member said that in North Dakota a summons and complaint can be served for the same cost as sending out a notice of action under the proposed waiver provision. The member said there was no need for waiver of service in North Dakota.
A member said that sophisticated litigants are likely to understand the waiver of service procedure, but others might not appreciate what is required of a defendant when a notice of action is received. The member said the provision was unnecessary in North Dakota.
A member said that the federal government does not allow service by certified mail while North Dakota does. A member said that at one time a U.S. Marshal had to be used for service and waiver of service was devised to take some burden off the Marshal. The member said most litigants in federal court diversity cases try to use state court service methods because the waiver procedure is cumbersome.
A member said that most defendants do not understand what is required when they receive a notice of action and a waiver of service. They need to consult with an attorney to find out what to do.
The motion to delete the waiver of service provision CARRIED unanimously.
Mr. Boschee MOVED to delete language beginning with the word "upon" on page 45, line 315, and concluding with the word "plaintiff" on page 46, line 316, and to further delete language after the word "defendant" on page 46, line 317, through the end of the paragraph on line 319. Mr. Plambeck seconded.
A member said if the motion was approved, there would be a definite time frame during which service of the summons and complaint would have to be made.
A member responded that having a bright line rule could be good in some ways. The member said, however, that sometimes service can be delayed through no fault of the plaintiff. The member said a sheriff or process server could sit on the summons and complaint without serving it. The member said 120 days could go by very quickly in some cases, and denying all possibility of relief for failure to serve during the period would be unreasonable.
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A member responded that if the proposed amendment was accepted, it would encourage parties to be more vigilant about monitoring their process servers and making sure service was accomplished within the allowed time.
A member said sometimes it is the client's fault when an action is not filed until the very end of the limitations period. The member said also there are many reasons why service of a summons and complaint may be delayed. The member said parties should have the opportunity to show good cause for a delay in service and have the chance to possibly obtain an extension from the court.
A member said that under N.D.C.C. § 28-01-38, an action needed to be served within six years or be in the hands of the sheriff for service within six years to satisfy the requirements of the statute of limitations. The member said there was nothing in the statute about filing the action being adequate to satisfy limitations requirements. The member said the only type of action where filing without service might be appropriate would be in a case where the plaintiff needed a temporary restraining order.
Staff said that based on the Committee's recommendations for Rule 3, N.D.C.C. § 28-01-38 would be superseded if commencement by filing was put in place. Staff said if the Supreme Court accepted the Committee's recommendation on superseding the statute, it would be deleted from the code by the code revisor. A member commented that if these actions took place, filing would then be the act that tolled the statute of limitations.
A member reminded the Committee that a federal court had interpreted N.D.C.C. § 28-01-38 to be a substantive statute. The member asked whether the Supreme Court would take this into account when deciding whether to supersede the statute. The Chair pointed out that when federal courts interpret a state statute, they are merely making a prediction about what the state's highest court might decide if it were called to interpret the statute.
A member said that it could be argued that N.D.C.C. § 28-01-38 merely sets out the procedure for handling initial service of process, but that it could also be argued that the issue of when the statute of limitations is tolled is a substantive issue. A member commented that the Supreme Court would decide the issue of whether the statute is substantive or procedural by deciding whether or not the statute should be superseded.
Staff said that through the rule making process, concerned parties will be able to submit comments and appear at hearings to make their opinions known on whether it would be appropriate to supersede N.D.C.C. § 28-01-38 to make filing the event that tolls the statute of limitations.
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The motion to amend was DEFEATED.
A member asked what would happen to the report on commencement by filing once it reached the Supreme Court. The Chair replied that the Court is seeking a report on whether or not the Committee thinks the current system should be changed. The Chair said the Court also wants to know what rule changes would need to be made if the system is changed. The Chair said the Court will decide how to proceed once it receives the report. The Chair said that if the Court decides to go forward, it would likely seek comment from the public and have a public hearing.
The Chair said the legislature had appropriated more than a million dollars toward the design of a new computer system for the district courts. The Chair said that the type of commencement of actions system in place would be a factor in designing the system, in part because how to handle electronic filing and electronic service will be questions to consider in system design.
A member commented that one of the drawbacks of commencement by filing was that a plaintiff could file an action and then sit on it, without the defendant knowing it exists. The member said in one case a party was involved in contract negotiations and, anticipating the negotiations might go bad, filed a complaint in order to establish venue for an action on the contract. The member said that the rule should have a tighter deadline for pursuing service. The member said that under the proposed 120 day deadline, a defendant could be reading a newspaper article about a lawsuit before any attempt at service is made. The member suggested perhaps 30 days would be better.
A member said that the language at page 33, lines 52-55, could be amended to require the plaintiff to act in good faith to take timely steps to effectuate service. A member asked what consequences would be imposed if a plaintiff did not act quickly and instead waited out the allowed 120 days before service--could the other side make a motion to dismiss? A member commented that there are legitimate reasons that service might be delayed, such as not being able to find the defendant, but that plaintiffs should not be allowed simply to delay service on a complaint.
The Chair suggested that staff research possible language that would induce plaintiffs to act promptly to serve a complaint, including looking at approaches taken by other states.
By unanimous consent, lines 358-359 in the explanatory note, which referred to the deleted waiver of service provision, were struck.
The motion to include the Rule 4 proposal, as amended, in the report to the Supreme
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Court CARRIED unanimously.
Staff said Rule 5 might require minor amendment if North Dakota switched to a system of commencement by filing and that the proposal before the Committee contained suggested changes.
Judge Schneider MOVED to include the Rule 5 proposal in the report to the Supreme Court. Judge Kleven seconded.
Mr. Plambeck MOVED to substitute the word "pleadings" for "papers" on page 57, line 46. Ms. Ottmar seconded.
A member said that it was inconsistent to say that all papers must be filed and then follow this requirement with a prohibition against filing discovery materials. A member said that the federal rule was structured better because it created an explicit exception for discovery papers.
Mr. Kuntz MOVED a substitute motion to keep the word "papers" and to add a comma and the word "except" after the word "service" on page 57, line 48. Mr. McLean seconded. The motion to substitute CARRIED unanimously.
The motion to amend, as substituted, CARRIED unanimously.
The motion to include the Rule 5 proposal, as amended, in the report to the Supreme Court CARRIED unanimously.
Staff said that Rule 12 may need to include new language on service of the answer if North Dakota switched to a system of commencement by filing and that the proposal before the Committee contained suggested changes.
Judge Schneider MOVED to include the Rule 12 proposal in the report to the Supreme Court. Judge Geiger seconded.
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Mr. Boschee MOVED to delete language and lettering on page 64, lines 8-11, in order to eliminate reference to the waiver of summons. Mr. McLean seconded.
A member said that the Committee had declined to adopt waiver of summons language when it considered Rule 4 so reference to waiver of summons is unnecessary in Rule 12.
The motion CARRIED unanimously.
By unanimous consent, language referring to waiver of summons was deleted from the explanatory note on page 68, line 105.
A member asked whether it was necessary to have a reference in the explanatory note at all, given the Committee's choice not to adopt the waiver of summons option.
The Chair said that there should be a standard provision included in Rule 12 explanatory note and the other notes to the proposed rules in the report indicating that amendments had been made because of a change to commencement by filing. The Chair directed staff to draft appropriate language. Staff said that a draft report, including rule amendment proposals with the Committee's amendments, would be prepared and available for the Committee's review at the September meeting.
A member observed there was a reference in the rule to the note of issue/certificate of readiness requirement that should be deleted if the Committee chooses to delete this requirement from Rule 40.
The motion to include the Rule 12 proposal, as amended, in the report to the Supreme Court CARRIED unanimously.
Staff explained there were two Rule 16 proposals for the Committee's consideration: one with minimal changes that would be necessary if North Dakota switched to a system of commencement by filing and an alternative version with wide-ranging changes based on the federal rule.
Judge Nelson MOVED to include the main Rule 16 proposal in the report to the Supreme Court. Mr. Mack seconded.
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Staff said that under either the main proposal or the alternative version, a scheduling conference would become mandatory in almost every case.
The motion to include the main Rule 16 proposal in the report to the Supreme Court CARRIED unanimously.
Staff said that the proposed changes to Rule 26 were designed to complement proposed changes that would have made Rule 16 more like the federal rule. Staff explained that since the Committee rejected the federal alternative version of Rule 16, it would need to consider whether any change at all to Rule 26 would be necessary if North Dakota switched to a system of commencement by filing.
Mr. Quick MOVED to include the main Rule 26 proposal in the report to the Supreme Court. Judge Schneider seconded.
A member asked whether there would be any problems if Rule 26 was left unchanged. Staff responded that discovery could be carried out as it is under the current system if a switch was made to commencement by filing.
A member suggested that the Committee leave Rule 26 out of the report because the proposed changes are not directly related to commencement by filing. The member said the proposed changes, however, may merit discussion at another time.
The motion to include the Rule 26 proposal in the report to the Supreme Court was DEFEATED by a unanimous vote.
RULES 30, 31, 33, 34, 36, N.D.R.Civ.P. - DISCOVERY METHODS (PAGES 110-143 OF THE AGENDA MATERIAL)
Staff said that the proposed changes to Rules 30, 31, 33, 34, and 36 were designed to complement proposed changes to Rule 26 that would have barred discovery prior to the discovery conference. Staff explained that, since the Committee rejected the proposed change to Rule 26, it would need to consider whether any change at all to the discovery methods rules would be necessary if North Dakota switched to a system of commencement by filing.
The Chair suggested that the Committee look at the discovery method rules one by
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one to see if any amendments were needed.
A member said the rules allow discovery to begin at any time after the action is commenced. The member wondered whether allowing 120 days to serve the summons and complaint after an action is commenced by filing would lead to any problems with discovery.
A member responded that the rules require parties to wait a given number of days after service before commencing discovery without leave of court. A member observed that Rule 31 lacked the waiting period provision. The member suggested that the language in Rule 31(a) be brought into conformity with the language of Rule 30(a).
Mr. Kuntz MOVED to amend page 124, line 4-13, by removing the overstriking and the new language, and amending line 4 by striking the words "commencement of an action" and adding the words "service of the summons and complaint." Judge Schmalenberger seconded.
A member said that it may be necessary to add some additional time period after service of the summons and complaint before allowing a deposition upon written questions. A member said that protection for a deposition subject is implicit in the rules because if the deposition is compelled by subpoena, the party seeking the deposition would be required to comply with Rule 45, which includes additional time periods. The member said a deposition subject could also seek a protection order under Rule 26.
A member asked whether there was ever a circumstance where a party would seek to do discovery before the summons and complaint was served. A member said that Rule 27 allowed limited pre-suit discovery. A member asked whether the proposed amendment would limit pre-suit discovery further. A member suggested that language could be added to the motion language to refer to Rule 27.
Mr. Mack MOVED to amend the pending motion to add the words "or as allowed under Rule 27." Mr. Kuntz seconded.
A member said the proposed language might be superfluous because a Rule 27 addresses pre-suit discovery and Rule 31 addresses discovery after commencement of the action.
The motion to amend the motion was DEFEATED.
The motion to amend Rule 31 CARRIED unanimously. By unanimous consent, language was added to the explanatory note reflecting the amendment.
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The consensus of the Committee was that Rules 30, 33, 34 and 36 would not need to be amended if a change was made to a system of commencement by filing.
RULE 40, N.D.R.Civ.P. - ASSIGNMENT OF CASES FOR TRIAL (PAGES 144-150 OF THE AGENDA MATERIAL)
Staff explained that if North Dakota switched to a system of commencement by filing, scheduling conferences would be required in every case not resolved within 6 months, making the note of issue and certificate of readiness unnecessary. Staff said that the Rule 40 proposal before the Committee contained changes that would eliminate the note of issue and certificate of readiness requirement.
Judge Geiger MOVED to include the Rule 40 proposal in the report to the Supreme Court. Mr. McLean seconded.
A member said that it was rare to see notes of issue and certificates of readiness filed. The member said scheduling conferences under Rule 16 were becoming more common. The member said the note of issue/certificate of readiness requirement was a dinosaur.
A member agreed that the note of issue/certificate of readiness was not used commonly among practicing lawyers. A member asked whether the proposal to delete the note of issue/certificate of readiness requirement should be made part of the annual rules package rather than part of the report on commencement by filing. The member said that the requirement should be disposed of because it is obsolete.
Judge Schmalenberger MOVED to amend the main motion to include the Rule 40 proposal in the annual rules package rather than in the report on commencement by filing. Judge Foughty seconded. The motion CARRIED unanimously.
A member asked whether Rule 40 should be amended further to change the provision at page 147, lines 49-52, to shorten the period of time allowed for "want of prosecution" so that cases can be dismissed for inaction at an earlier date. The member said it would be useful to dismiss cases that have been inactive for six months so that docket currency requirements can better be maintained.
A member said that a better alternative is to hold a scheduling conference when a case seems to have become inactive. The member said that only a very few cases that seem inactive from the court's perspective have actually been abandoned.
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Mr. Plambeck MOVED to add the words "or as otherwise scheduled by the court" to page 147, line 61, in the explanatory note. Judge Schneider seconded.
A member said there were cases where a scheduling conference was unnecessary, but where a trial date needed to be set. The member said the court needs discretion to set courses for trial without holding a scheduling conference. A member observed that small claims cases transferred to district court are typically set for trial without a scheduling conference.
The motion CARRIED unanimously.
A member asked whether Rule 40 would need to be re-lettered when the subdivision on the note of issue/certificate of readiness requirement was deleted. The member said that the courts had many forms and computer templates that mention "Rule 40(e)." By unanimous consent, the Committee decided to insert the word "[Deleted]" in place of the previous text in subdivision (d) and to preserve the existing lettering of the rule.
The motion to send the Rule 40 proposal, as amended, to the Supreme Court as part of the annual rules package CARRIED unanimously.
RULE 8.3, N.D.R.Ct. - CASE MANAGEMENT (DIVORCE CASES) (PAGES 151-154 OF THE AGENDA MATERIAL)
Staff said that Rule 8.3 might require minor amendment if North Dakota switched to a system of commencement by filing and that the proposal before the Committee contained suggested changes.
Judge Kleven MOVED to include the Rule 8.3 proposal in the report to the Supreme Court. Mr. Dunn seconded.
A member said the requirement that parties meet 30 days after service should be retained and not changed to 30 days after filing. The member said the rule should be retained because it sets out a unique procedure that was specifically developed for divorce cases.
Judge Schmalenberger MOVED to restore the existing language on page 152, line 4. Judge Schneider seconded.
A member said that, because of the time allowed to serve after filing, the defendant might not even know an action exists 30 days after filing when the time for the parties to meet arrives. The member said the meeting time should be set based on service.
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The motion CARRIED unanimously.
The motion to include the Rule 8.3 proposal in the report to the Supreme Court CARRIED unanimously.
Staff said that Admin. Order 16 would need changes clarifying how the summons and complaint should be served if North Dakota switched to a system of commencement by filing and that the proposal before the Committee contained suggested changes.
Mr. Boschee MOVED to include the Order 16 proposal in the report to the Supreme Court. Judge Schneider seconded.
A member asked what would happen if someone filed a complaint electronically and served it, but did not pay the filing fee. The member said that, under the order, the complaint would be returned by the clerk if there was a failure to pay the filing fee. The member asked what the status of the matter would be once the complaint was returned, whether the complaint would still be alive or whether the matter would be dismissed.
A member responded that if the complaint was returned, it would be like the matter had never been commenced. A member responded that if the complaint was served, the defendant would be under the obligation to answer within 20 days. A member said that there would be no action because the complaint, even though served, was not filed. A member responded that the defendant would have no way of knowing that.
The Chair said that parties will no longer be able to claim "the check is in the mail" when they file electronically because parties are now allowed to use credit cards to pay filing fees. A member said that the order should be amended to require payment at the time of filing rather than allowing parties to delay payment.
A member said that language allowing parties to delay payment by five days when filing electronically could be deleted from the order.
Judge Nelson MOVED to delete the text at page 157, lines 30-32. Mr. Dunn seconded.
A member said that the federal courts are using electronic filing now, and parties can electronically send the court documents to start a new case, but the federal court computer
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system will not recognize that the documents exist unless the filing party pays the filing fee. Once the fee is paid, an electronic file is created, and the sent documents are recognized. The member said the federal court practice demonstrates that it is legitimate to require payment before a file is opened.
A member asked how, under the proposed amendment to the order, an attorney would know that payment of a filing fee is required before a complaint sent electronically would be considered filed.
Judge Foughty MOVED to amend the pending motion to retain the sentence starting at page 157, line 30; to replace the words "within five days of" in the sentence with the word "upon"; to move the sentence to line 25; and to delete the language currently at line 25. Mr. Dunn seconded. The motion to amend CARRIED unanimously.
A member suggested that the proposed language did not make clear when a party filing electronically needed to pay the filing fee. A member said that this issue was addressed by paragraph C(2), which requires the clerk to acknowledge electronically filed documents.
By unanimous consent, the words "to be" were added to the amended motion language between the words "document" and "filed." After this addition, the pending motion language to be inserted at line 25 was: "A party must pay all required fees upon submitting a document to be filed electronically."
The motion, as amended, CARRIED unanimously.
Mr. Kuntz MOVED to add the words "and filed" after the word "received" on line 24. Judge Schmalenberger seconded. The motion CARRIED unanimously.
The motion to include the Order 16 proposal in the report to the Supreme Court CARRIED unanimously.
The Committee discussed whether it should wrap up its work on the commencement by filing report at this meeting or whether it would be advisable to review and discuss at the report further at the next meeting.
Staff reported that the Secretary of State had submitted a comment on a proposed change to Order 16 that the Committee had made at the January 2007 meeting. Staff distributed a copy of the comment and explained that the Secretary of State had questioned whether an electronically transmitted notary signature could have the same effect as an
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"original" signature.
The meeting recessed at approximately 4:00 p.m., on April 26, 2007.
April 27, 2007 - Friday
The meeting was called to order at approximately 9:00 a.m., by Justice Dale Sandstrom, Chair.
PRELIMINARY MATTERS
The Chair discussed the schedule for the day's meeting. The Chair said that, based on the issues raised by the Committee during the first day of the meeting, it would be appropriate to revisit the issue of commencement by filing at the next meeting. The Chair said this would give the Committee an opportunity to review the work it had done on its report to the Supreme Court and to fully discuss its conclusions.
Staff explained committee member Steve Plambeck had proposed an additional minor change to Rule 32. Staff said that Committee had previously approved amendments to the rule at its January 2007 meeting.
Ms. Ottmar MOVED to adopt the proposed amendments to Rule 32. Mr. Boschee seconded.
The motion to adopt the proposed amendments to Rule 32 CARRIED unanimously. The amendments will be sent to the Supreme Court as part of the Annual Rules Package.
Staff explained committee member Steve Plambeck had proposed additional changes to Admin. Order 14. Staff said the Committee had approved amendments to the order at its January 2007 meeting and that the proposed changes would harmonize the language of the order with amendments the Committee approved to N.D.R.App.P. 26 in January.
Judge Schneider MOVED to adopt the proposed amendments to Order 14. Mr. Quick seconded.
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A member pointed out that the Order 14 language allowing five days for payment of fees (on page 170, lines 51-54) was not consistent with the changes the Committee had made to Order 16, which required payment of fees at the same time as filing. A member said the two rules should be consistent.
The Chair explained that the Supreme Court was working to allow credit card payments throughout the court system because court staff spend a significant amount of time trying to keep track of unpaid filing fees.
Mr. Kuntz MOVED to delete the text at page 170, lines 51-54 and replace it with "A party must pay all required fees upon submitting a document to be filed electronically." Judge Foughty seconded. Motion CARRIED unanimously.
Mr. Kuntz MOVED to add the words "and filed" after the word "received" on page 169, line 37. Judge Nelson seconded. Motion CARRIED unanimously.
A member asked whether the words "upon receiving a document filed electronically"on page 169, line 36, were correct given that a document was not considered filed until the filing fee was paid. A member said that the amendment to the end of the sentence ensured that e-mail confirmation of filing would not be sent until the document was actually filed. A member said if a party submits a document electronically and does not receive a confirmation e-mail, the party needs to follow-up and check that the document was filed.
A member said that when credit cards are used to pay a fee, a percentage of the payment goes back to the credit card company as a service charge. The member asked whether any statutory amendments had been made to account for the reduced fees the courts would be getting by allowing credit card payments. A member responded that there was a generally applicable statute allowing state agencies to accept payment by credit card. A member said allowing payment by credit card actually saves the state money because it reduces the time state employees spend processing payments and following up on unpaid fees.
The motion to adopt the proposed amendments to Order 14 CARRIED unanimously. The amendments will be sent to the Supreme Court as part of the Annual Rules Package.
Staff explained that Justice Crothers had suggested a change to Rule 5 and that Justice
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Sandstrom had pointed out some additional problems with the language of the rule. Staff said the proposal before the Committee contained changes based on suggestions from the Justices and on form and style improvements made to Fed.R.Civ.P. 5.
Ms. McLean MOVED to adopt the proposed amendments to Rule 5. Judge Kleven seconded.
A member questioned the removal of language requiring that every paper submitted to the judge be served. The member said that many pro se litigants attempt to submit papers directly to the judge. The member said that under the old language, the judge could give the paper back and require the litigant to serve it on the other party. The member said that similar language should be retained in the rule.
A member responded that the rules in general discourage submission of papers directly to the judge. A member said N.D.R.Ct. 3.1 specifically states items cannot be filed with the judge but only with the clerk.
A member pointed out that the Committee had addressed Rule 5 earlier in the meeting while discussing the report on commencement by filing. The member said the Committee had considered changes related to the filing of discovery papers. In light of those discussions, the member asked whether the Committee needed to make changes to Rule 5 discovery paper filing language.
Staff said the previous discussions on filing of discovery paper were necessary because the version of Rule 5 being submitted as part of the commencement by filing report contained changes that had not yet been made to Rule 5 and that were not part of the Rule 5 proposal now before the Committee.
The Chair said that one of the problems with the existing rule was that it did not clearly say that it applied to every pleading after the initial complaint. The Chair suggested that the proposed changes still did not make this clear.
Staff said language on page 176, line 14, required service of all pleadings after the original summons.
A member said language requiring every paper filed with the clerk or submitted to the judge be served should be restored to the rule. The member said people send items to the court that may not be listed specifically in the rule but are important. The member said clerks are instructed to file items presented for filing without asking whether they had been served. The member said copies of such items should be served on the other parties.
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Judge Schmalenberger MOVED to add a new paragraph (a)(1)(F) on page 176 after line 19: "every paper filed with the clerk or submitted to the judge." Ms. Ottmar seconded. Motion CARRIED unanimously.
A member said the language on page 176, line 13, was troubling. The member said that every order should be served on all parties, not just orders that state service is required.
Mr. Kuntz MOVED to delete the language after "order" on page 176, line 13, and to substitute "unless the court orders otherwise." Judge Geiger seconded.
A member asked whether there was some sort of order the court would say did not have to be served on other parties. A member said that some orders might not apply to all parties in a multi-party case. A member said that it would be rare in a civil case to have an order that was not served on all parties.
The motion CARRIED unanimously.
A member suggested that language in the current rule requiring service of "every proposed order, order for judgment, decree, finding of fact and conclusion of law" be included in the proposed amendments. A member responded that the language requiring every paper filed with the clerk or submitted to the judge to be served would cover orders and findings.
The Chair pointed out that there was no language in Rule 5 explicitly stating that Rule 5 service can be made only after service of the original summons under Rule 4. Staff said there was language in the explanatory note, but that this language was not part of the rule.
A member suggested that the words "after the service of the summons" could be added on page 176, line 11, after the comma. Another member suggested replacing the entire sentence at page 176, lines 11-12 with "This rule applies only after service of the summons under Rule 4." Another member suggested: "After an action is commenced, all papers must be served under this rule."
A member said that, by implication, it could be argued that Rule 5 only governs service after an action is commenced. The member said it was important to say clearly in the rule text that Rule 5 only applies after service of the summons.
A member suggested that language be added to the title of subdivision (a) so that it would read "Service - When required after service of a summons under Rule 4." A member said that a title arguably is not part of the rule, but that similar language could be integrated
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at page 176, line 11. The member said that the Century Code specifically says that a title is not part of the rule.
A member said that limiting Rule 5 to items served after the summons would not be workable. The member said Rule 27 allows pre-suit depositions and requires service of a petition and notice. The member said that service of these items under Rule 5 should be allowed. The member said what needed to be made clear was that Rule 4 governs service of the summons while Rule 5 governs service of everything else.
A member asked whether any change was necessary given the language on page 176, line 14, referring to pleadings "served after the original summons."
Judge Schmalenberger MOVED to amend the proposal at page 176, line 11, by inserting the words "After service of a summons and complaint under Rule 4," then deleting the words "unless these rules provide otherwise." Also, after the word "party" on page 176, line 12, adding the words "under this rule, unless these rules provide otherwise:" Ms. Ottmar seconded.
Mr. Kuntz MOVED to amend the motion to substitute "other than" for "after" at the beginning of the proposed amendment. Judge Klevin seconded.
A member said that there were certain types of service that could be made prior to service of a summons under Rule 4 and that the proposed amendment to the motion makes clear that such pre-suit service can be made under Rule 5.
Motion to amend the motion CARRIED unanimously.
Motion, as amended, CARRIED unanimously.
A member suggested that the words "and complaint" be added after "summons" on page 176, line 14. By unanimous consent, the change was made.
The motion to adopt the proposed amendments to Rule 5 CARRIED unanimously. The amendments will be sent to the Supreme Court as part of the Annual Rules Package.
RULE 17, N.D.R.Crim.P. - SUBPOENA (PAGES 185-191 OF THE AGENDA MATERIAL)
Staff explained that Jean Delaney from the Commission on Legal Counsel for Indigents had suggested removing an obsolete cross-reference from the rule. Staff said
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Delaney also suggested that the rule be changed to remove the requirement that parties to a criminal case pay witness fees in advance.
Mr. Quick MOVED to adopt the proposed amendments to Rule 17. Judge Kleven seconded.
The motion to adopt the proposed amendments to Rule 17 CARRIED 12-1. The amendments will be sent to the Supreme Court as part of the Annual Rules Package.
RULE 32.2, N.D.R.Crim.P. - PRETRIAL DIVERSION (PAGES 192-212 OF THE AGENDA MATERIAL)
Staff explained that committee member Bruce Quick proposed adoption of a new rule on pretrial diversion. Staff said that the proposal before the Committee was based on Minn.R.Crim.P. 27.05.
Mr. Quick MOVED to adopt the proposed new Rule 32.2. Judge Kleven seconded.
A member said that the language of the proposal would need to be cleaned up because it included references to several types of Minnesota offense categories that do not exist under North Dakota law. The member said that prosecutors already have the common law authority to take the measures allowed by the proposed rule, but that it does not happen often because they do not think they have the authority.
A member said the Minnesota rule was useful and that the federal court also had a diversion process. The member said that the Minnesota diversion rule gives prosecutors another option, especially in minor cases. The member said that prosecutors can also use the rule in more serious cases when there are witness or evidence problems.
A member said that some courts already do something similar by granting dismissals without prejudice that can later become dismissals with prejudice if certain conditions are met. The member asked whether conditions, such as no alcohol consumption, were imposed in pretrial diversion cases under the Minnesota rule. A member responded that a wide range of conditions have been imposed in Minnesota cases. The member said that if the rule was adopted there would be opportunities to craft creative and effective pretrial diversion conditions.
A member said that, in cases where pretrial diversion has been tried in North Dakota, there is often no court involvement. A member responded that if pretrial diversion is done on a pre-charge basis, there would be no need for court involvement. The member said that
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the rule would apply to both pre-charge and post-charge diversion cases.
A member commented the major advantage of having a rule would be that it would provide some support for attorneys seeking diversion remedies. The member said that many judges and prosecutors do not think they have the authority to grant a remedy involving pretrial diversion.
A member said that there are statutes that forbid deferred imposition of sentence for certain crimes such as DUI and sex crimes. The member said those statutes may have an impact on whether diversion would be possible in some cases.
A member said that it is not necessary to have a rule for everything. The member said that prosecutors have discretion to grant pretrial diversion. The member said that having a rule may end up taking away some flexibility that prosecutors have to exercise their discretion. The member said that the State's Attorneys Association should be given the opportunity to examine the proposal.
A member said that having a pretrial diversion rule could also create docket currency issues. The member said judges would have to explain why certain criminal cases had not been disposed of within a given time period. The member said one reason judges use dismissals without prejudice is to maintain docket currency. The member said one advantage of having a rule is that judges would be able to point to it when explaining why certain cases had not been disposed of.
A member said a rule like this is a rule of opportunity, not restriction. The member said that if the rule goes into effect people can look at it to learn about additional options.
The Chair suggested the Committee request the comments of the State's Attorneys Association, the Indigent Defense Commission, and other entities involved with criminal sentencing.
The Committee proceeded to examine the proposed rule to identify language and provisions inconsistent with North Dakota law and practice.
On page 193, lines 7-8, the Committee addressed the use of the terms "gross misdemeanor" and "petty misdemeanor." The consensus of the Committee was that North Dakota's infraction category was equivalent to Minnesota's petty misdemeanor. By unanimous consent, "gross misdemeanor" was deleted from line 7 and "petty misdemeanor offense" was changed to "infraction."
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By unanimous consent, the term "shall" used on page 193, lines 8 and 9, on page 194, line 30, and on page 195, lines 60 and 62, was replaced with the term "must."
By unanimous consent, the term "that" used on page 194, line 40, and page 195, line 48, was deleted.
By unanimous consent, the term "forthwith" used on page 195, line 47, was deleted.
A member pointed out that subdivision (f) on page 195 at lines 54-57 seemed to require a defendant's bail status to be maintained during the pretrial disposition, pending a possible resumption of prosecution, which would leave clerks of court holding bail over a long period of time.
Judge Kleven MOVED to delete subdivision (f) and to reletter the subsequent subdivisions. Mr. Quick seconded. The motion CARRIED unanimously.
A member said under paragraph (d)(1) of the proposal on page 194 at lines 35-37, a defendant could end the pretrial diversion agreement on notice. The member asked what the rationale was for allowing the defendant to bail out of the agreement. A member replied that the defendant might not want to deal with the conditions and supervision involved with pretrial diversion and just want to face the judgment.
By unanimous consent, the term "tab charge" on page 195, lines 60 and 62, was changed to "information."
Mr. Mack MOVED that "one month" on page 195, line 60, be changed to "60 days" to be consistent with the period allowed after revocation of probation. Mr. Quick seconded. The motion CARRIED unanimously.
Mr. Mack MOVED to add a new subdivision (i) on page 196: "This rule does not preclude the prosecuting attorney and defendant from agreeing to diversion of a case without court approval if charges are not pending before the court." Mr. Quick seconded.
A member said that the new subdivision reflected language in the comments of the Minnesota rule and was an appropriate addition because the rule was intended to be a tool and not to be restrictive.
The motion CARRIED unanimously.
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A member said that agreements under the rule could be crafted to take defendants back to "square one" if the agreement was breached. The member said diversion agreements could also be offered in exchange for the equivalent of a conditional guilty plea, with the defendant to face sentencing if the agreement was breached.
Judge Geiger MOVED to add a new subdivision (j) on page 196: "Agreements Prohibited. Pretrial diversion agreements are not permitted for any criminal offense for which a deferred imposition of sentence is prohibited by law." Mr. Quick seconded.
A member said the theory behind the rule is that the prosecutor already has the authority to craft diversion agreements. The member said the proposed new subdivision would reduce the authority possessed by the prosecutor by prohibiting certain agreements. A member said if the subdivision is adopted, it would make the rule restrictive, which runs contrary to the intent to make it a rule of opportunity. The member said prosecutors sometimes may make diversion decisions because they don't have a good case, and the new subdivision would limit their options in such situations.
A member responded that the rule flirts somewhat with the sentencing laws of the state. The member said if the legislature says there are certain categories of offenses that a deferred imposition of sentence is prohibited, the legislature would likely not accept the idea that, because of a new rule, courts could grant pretrial diversion for those offense categories.
A member said that in any case there are a series of individuals who make decisions on whether a person should face punishment for a certain offense, starting with the arresting officer and including the prosecutor who charges out the offense. A member said that if a prosecutor and defense attorney try to use pretrial diversion in an inappropriate case, like a fourth time DUI, the judge can prevent pretrial diversion. The member said that pretrial diversion typically will be used with first offenders and that if it is misused, the judge needs to step up and block the agreement.
A member said that there are some cases, even in the offense categories where deferred imposition is not allowed, where a defendant should not be taken to sentencing right away. If the defendant fails to live up to the conditions, then they can be sentenced.
A member said that there should not be anything in the rule that will tie the hands of prosecutors, especially when a case deteriorates and getting some sort of remedy against the defendant is important. A member said adopting a rule on pretrial diversion by itself presents the risk of getting too many parties, including the court and the defense attorney, involved in the prosecution of a case. The member said that the rule should not restrict the powers that prosecutors have.
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The motion FAILED 2-10.
Mr. Quick MOVED to postpone consideration of the rule until the next meeting so that comments could be sought from the state's attorneys, indigent defense, and parole and probation authorities. Ms. McLean seconded.
A member commented that if the rule is adopted, pretrial diversion should remain an exception and not a common occurrence. The member hoped that pretrial diversion would not turn into the norm, given the other tools available for minor offenses.
The motion to postpone CARRIED unanimously.
RULE 2.1, N.D.R.App.P. - MENTAL HEALTH CASES (PAGES 213-222 OF THE AGENDA MATERIAL)
Staff explained that attorneys Mark Hanson and Tom Goven had proposed a change to Rule 2.1 lengthening the time to file a notice of appeal in a mental health case in cases when a stay must be requested from the Supreme Court. Staff said that the Chief Justice and the Supreme Court Clerk's Office reviewed the proposal and concluded that it was contrary to the mental health appeal statute.
Staff said that the proposal before the Committee contained language clarifying when a party was required to request a stay from the Supreme Court.
Judge Schmalenberger MOVED to adopt the proposed amendments to Rule 2.1. Judge Schneider seconded.
A member asked whether only the Supreme Court could grant a stay of a mental health treatment order. Staff explained that the Supreme Court did not have jurisdiction to act in any case until the notice of appeal was filed. Staff said that current practice was for attorneys to request a stay from the district court and, if the stay was granted, to prepare the appeal. Staff said that if the district court refused to grant a stay, attorneys must seek one from the Supreme Courtin such a case, attorneys must also comply with an expedited briefing schedule under the rule.
Staff said that the Chief Justice and the Clerk had pointed out that a problem created by the current practice was that some attorneys fail to request a renewed stay when the notice of appeal is filed. When this happens, patients can remain untreated for long periods of time at the State Hospital under district court stays. Staff explained that the rule change proposal was intended to make it clear that attorneys must gain approval from the Supreme Court for
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any treatment stays that persist during an appeal.
The motion to adopt the proposed amendments to Rule 2.1 CARRIED unanimously. The amendments will be sent to the Supreme Court as part of the Annual Rules Package.
RULE 14, N.D.R.App.P. - IDENTITY PROTECTION (PAGES 223-234 OF THE AGENDA MATERIAL)
Staff explained that Justice Sandstrom had proposed a new appellate rule that would protect identities of vulnerable parties in appellate proceedings. Staff said the rule would also allow the amendment of electronically published opinions to protect the identities of vulnerable parties.
Judge Kleven MOVED to adopt the proposed new Rule 14. Judge Foughty seconded.
The Chair explained that the rule was necessary because there were no specific standards for protecting the identities of children and other vulnerable persons in appellate materials. The Chair indicated that children's names, especially, often appear in submissions to the Supreme Court in domestic matters. The Chair said that with electronic copies of appellate materials now available on the Internet, more formal steps needed to be taken to prevent the inappropriate disclosure of the identities of people involved in appellate cases.
A member asked whether the rule would create a cause of action against the courts in cases where private information is released, such as when a name is included in a brief in violation of the rule. The Chair said the clerk reviews submissions to the court and would likely instruct a party who submits a brief that violates the rule to correct it. The Chair said there was no intention to create a cause of action.
A member said that a person could argue that a release of information in violation of the rule would be a violation of a privacy right created by the rule. The member said this was especially likely to become an issue in cases where adverse counsel was responsible for releasing the information. A member suggested there could be language in the rule explaining there was no intent to create a separate cause of action.
Mr. Kuntz MOVED to add language to the explanatory note: "This rule is not intended to create a separate cause of action." Mr. Dunn seconded.
A member commented that as part of victim/witness legislation that had been added to the Century Code, clauses were added to state that the statutes were not intended to create separate causes of action.
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The motion CARRIED unanimously.
By unanimous consent, a reference to N.D.C.C. § 12.1-34-02 was added to the "considered" section of the explanatory note.
The motion to adopt the proposed new Rule 14 CARRIED unanimously. The amendments will be sent to the Supreme Court as part of the Annual Rules Package.
RULE 28, N.D.R.App.P. - BRIEFS (PAGES 235-256 OF THE AGENDA MATERIAL)
Staff explained that the Chief Justice proposed an amendment to Rule 28 patterned on a Utah appellate rule. Staff said the amendment would allow briefs to be struck and sanctions levied when irrelevant and immaterial matters are included in appellate briefs.
Judge Schneider MOVED to adopt the proposed amendments to Rule 28. Judge Geiger seconded.
A member said that the new provision should not be limited just to the appellate courts.
A member said that the language of the proposal seemed to limit assessment of fees to lawyers, not pro se parties.
Mr. Kuntz MOVED to add "party or its" between the words "offending" and "lawyer" on page 239, line 77. Mr. Mack seconded. Motion CARRIED unanimously.
A member said that "offending person" might be better language. The member said if a lawyer did something out of line on their own, the party should not be sanctioned. A member responded that under the proposed language, the court had the option to choose the appropriate individual to sanction.
A member asked whether attorney fees could be assessed when the non-offending party was a self-represented litigant. The member said some sort of costs would need to be assessed in such a case. A member said a self-represented litigant could be assessed attorney fees if they were the offending party but not if the other party was the offender.
Judge Schneider MOVED to amend the motion to add the words "or costs" after the words "attorney fees" on page 239, line 77. Judge Geiger seconded. Motion CARRIED unanimously.
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A member said that the new requirement imposed by the proposal was broad. The member said that allowing parties to make these motions would make the motion to strike and for sanctions a common motion at the appellate level. The member said this would burden the court and the parties.
A member said that the rule is well-intended, but that rules of professional conduct already govern irrelevant pleadings. The member said that enforcement of the rule could penalize the party for the actions of the attorney.
A member said that the use of the term "scandalous" in the proposal was a concern. The member said that family law briefs are often filled with material that could be considered scandalous. The member also said that it was not the role of the appellate rules to dictate how lawyers behave.
A member said this proposal was an example of the apparent need to have a rule for everything. The member said that the term "scandalous" was hard to define, but that the court could use its discretion to define it. The member said that there was a need to limit inflammatory and dishonest material in briefs.
Mr. Mack MOVED to amend the proposal to end the sentence at page 239, line 77, with the term "offending party." Mr. Dunn seconded.
A member said that even if only the "offending person" could be momentarily sanctioned, if a party's brief was striken because of a lawyer's actions, this would be unfair to the party.
The motion CARRIED unanimously.
A member asked whether the use of the terms "attorneys fees or costs" would force the court to choose one or the other as a sanction. A member suggested that "attorneys fees or costs or both" would make it clear that the phrase did not limit the court's options.
Judge Nelson MOVED to amend page 239, line 77, to add "or both" after "attorneys fees or costs." Ms. Ottmar seconded. Motion CARRIED unanimously.
A member asked whether there was any case law defining the term "scandalous." A member responded that there were cases that involved materials that involved material that was "scandalous," such as accusing persons involved in a case with sexual offenses.
Judge Foughty MOVED to insert the word "or" before "immaterial" on page 239, line
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75, and to delete the words "or scandalous" from the line. Ms. Ottmar seconded.
A member said "scandalous" matters are issues much of the time in family law cases, but they are often material. The member said "scandalous" material should not be limited when it could matter in a case.
The motion CARRIED unanimously.
The motion to adopt the proposed amendments to Rule 28 CARRIED 9-3. The amendments will be sent to the Supreme Court as part of the Annual Rules Package.
PRIVACY PROTECTION FOR FILINGS MADE WITH THE COURT (PAGES 257-297 OF THE AGENDA MATERIAL)
Staff explained that the federal government had approved new rules designed to protect social security numbers and other private information included in court filings. Staff said that the new rules were similar to provisions North Dakota adopted as part of N.D.R.Ct. 3.1. Staff said that the proposals before the Committee included new rules and rule amendments based on the federal rules.
A member commented that N.D. Sup. Ct. Admin. R. 41 would also be implicated if changes were made to the privacy protection rules.
The consensus of the Committee was that the privacy protection rule proposals should be discussed at the next meeting.
FOR THE GOOD OF THE ORDER
The Committee discussed the date of the next meeting. The Committee agreed that the meeting dates should be moved from September 27-28 because those dates conflict with the University of North Dakota homecoming. The consensus of the Committee was that the preferred alternate dates were October 11-12.
The meeting adjourned at approximately 11:30 a.m., on April 27, 2007.
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Michael J. Hagburg