MINUTES OF MEETING
Joint Procedure Committee
January 30, 1997
TABLE OF CONTENTS
Rule 32, N.D.R.Crim.P. - Sentence and Judgment... 2
Rule 4, N.D.R.Civ.P. - Persons Subject to Jurisdictions-Process-Service... 6
Rule 43, N.D.R.Crim.P. - Presentence of the Defendant... 7
Rules 54 § 59, N.D.R.Civ.P. - Post Judgment Motions... 8
Rule 4, N.D.R.App.P. - Appeal--When Taken... 8
Appendix Form 7, N.D.R.Crim.P. - Criminal Judgment and Commitment... 8
Rule 6.7, NDROC - Juror Note Taking... 9
Rule 10, N.D.R.App.P. and Administrative Rule 39 - Transcript Specifications... 9
Rule 4, N.D.R.Civ.P. - Persons Subject to Jurisdiction- Process-Service... 10
Rule 5.1, N.D.R.Crim.P. - Preliminary Examination... 12
Rule 35.1, N.D.R.App.P. - Summary Disposition... 13
Rule 42, N.D.R.App.P. - Dismissal; Mootness... 13
Rule 6.8, NDROC - Juror Questions... 14
CALL TO ORDER
The meeting was called to order at approximately 9:00 a.m., January 30, 1997, by Justice Dale V. Sandstrom, Chair.
Justice Dale V. Sandstrom
Honorable Donovan Foughty
Honorable Gail Hagerty
Honorable Ronald L. Hilden
Honorable Maurice R. Hunke
Honorable Lawrence A. Leclerc
Mr. Lynn Boughey
Mr. Robert Heinley
Mr. Michael Hoffman
Mr. John Kapsner
Professor Larry Kraft
Mr. Ronald H. McLean
Ms. Patricia Monson
Ms. Sherry Mills Moore
Mr. James T. Odegard
Ms. Cathy Howe Schmitz
Mr. Gerhard Raedeke
The Committee's newest member, Lynn Boughey was introduced and welcomed. Justice Sandstrom explained, Jim Lamb is no longer on the Committee due to his retirement and the expiration of his term. The Committee was also informed, Judge Simonson will be filling the remainder of Judge Bohlman's term.
Staff reviewed State v. Hanson, Crim. No. 960103 (12/20/96), with the Committee. In State v. Hanson, the court ruled the statute providing for reciprocal discovery in criminal cases, Section 29-01-32, N.D.C.C., is unconstitutional. The statute violates separation of powers under N.D. Const., Art. XI, 26 by conflicting with Rule 16, N.D.R.Crim.P. The Court reaffirmed its rulemaking authority under N.D. Const., Art. VI, 3.
Justice Sandstrom informed the Committee, Senate Concurrent Resolution 4018 provides for a constitutional amendment requiring reciprocal discovery. Also, the state's attorney's association is going to submit another proposal for the Committee's consideration which would allow reciprocal discovery in criminal cases.
APPROVAL OF MINUTES (PAGES 1-20 OF THE AGENDA MATERIAL)
Professor Kraft MOVED to approve the minutes from the September 26-27, 1996, meeting as submitted. Judge Foughty seconded. Motion CARRIED.
RULE 32, N.D.R.Crim.P. - SENTENCE AND JUDGMENT (PAGES 21-45 OF THE AGENDA MATERIAL)
Staff gave an overview of the proposed amendment to Rule 32. First, the proposal allows the defendant's counsel to be present at any presentence investigation interview of the defendant. Second, the proposal addresses whether presentence investigation reports are confidential.
Rule 32 used to provide for confidentiality of presentence investigation reports by requiring the reports to be returned by the parties and by prohibiting copies of the report from being made. That provision was eliminated in 1992 to follow the 1989 federal amendment.
The Committee reviewed Administrative Rule 41 which became effective October 1, 1996. Under Administrative Rule 41, the general policy is judicial system records are open to the public. The appendix to Administrative Rule 41 lists Rule 32 as making presentence investigation reports confidential in whole or part. The Committee noted, however, Rule 32 does not address the public's right of inspection.
On page 29, the Committee reviewed a bill the Department of Corrections and Rehabilitation submitted to the 1997 Legislative Assembly. The bill addresses whether presentence investigation reports are confidential by deferring to Rule 32.
Staff explained the proposed amendment to Rule 32 seeks to balance the need for access to the presentence investigation report with the confidentiality interests involved. The proposal provides for confidential, sensitive, or potentially harmful information to be included in a confidential addendum. The presentence investigation report itself would be open to the public for inspection.
The Committee noted the proposal is different than the federal rule. The proposal expressly provides the judge is to receive confidential, sensitive, and potentially harmful information. The federal rule provides for exclusion of confidential, sensitive, or potentially harmful information from the presentence investigation report. The proposal also provides the public with a right of inspection. The federal rule does not address the public's right of access. Under the federal system, the public is entitled to a copy of the presentence investigation report under the Freedom of Information Act, which is why confidential, sensitive, or potentially harmful information is excluded from the presentence investigation report under the federal rule.
Committee members stated, the proposal is similar to current practice. Currently, sensitive material is included as an exhibit to the presentence investigation report. The judge makes the final decision whether to disclose confidential, sensitive, or other potentially harmful information.
Committee members stated, the judge should make the determination as to what is public and what is confidential. Under the proposal, the Department of Corrections and Rehabilitation makes the determination as to what is public and what is confidential.
Others stated, the court has final authority as to what is disclosed by having discretion as to what it discloses in the summary of information. Under the proposal, the court is required to summarize any factual information contained in the confidential addendum that will be relied upon in determining sentence. In addition, the probation officer will always have some discretion as to what he or she ultimately includes in the report.
Committee members argued, historically the presentence investigation report is the property of the judge and presentence investigation reports should be treated as confidential. The Department of Corrections and Rehabilitation would like presentence investigation reports to be confidential. The reports contain potentially harmful and scandalous material. This proposal will chill the use and depth of presentence investigation reports.
Others argued, the public should have a right to inspect the presentence investigation report. The parties should have access to the sensitive material to determine the accuracy of the information relied upon in determining sentence. The factors a judge uses to determine the sentence should be available to the public. The system loses credibility when things are done in secrecy.
Committee members argued, providing the public with access to the presentence investigation report would provide the public with inappropriate information. Family members and other people whose names are listed in the report should not receive public attention. Only the defendant should be subjected to public scrutiny. Furthermore, the public does not need the presentence investigation report. Judges have an obligation to set out the reasons for a sentence. The public can get sufficient information without disclosure of the presentence investigation report.
The Committee discussed the different levels of presentence investigation reports prepared by the Department of Corrections and Rehabilitation. A level 1 report is very brief. A level 2 report is more detailed, and a level 3 report is very detailed. The levels refer more to the depth of investigation involved in preparing the report rather than the specific substance or content of the report. Confidentiality probably cannot be based upon which level of report is involved. Committee members suggested Warren Emmer of the Division of Parole and Probation should be invited to address the Committee.
It was suggested, the rule needs to define more specifically what information in the presentence investigation report should be confidential. Others stated, the proposal does define the types of material that should be confidential. They said, they are comfortable with the definition of material to be excluded from the report. The language is taken from Rule 32,
Fed.R.Crim.P. They questioned how the rule could define more specifically the type of information to be kept confidential. Coming up with specific definitions would be difficult. The definition in the proposal is inherently amorphous.
Committee members were critical about Rule 32's requirement for judges to summarize the information the parties are not allowed to access. The requirement is too subjective. There is too much leeway. The parties should have access to most of the information. Also, there should be a distinction between what the public is entitled to see and what the parties are entitled to see. The only information that should be available to the public in the presentence investigation report is the name, rank, and serial number information.
Committee members stated, the result of the proposal will be that most information will be put in the addendum by the Department of Corrections and Rehabilitation. Under lines 76-78, on page 36, most information of any substance is going to be included in the addendum as being potentially harmful. The presentence investigation report will only contain basic name, rank, and serial number information. The defendant and the prosecution will end up getting less information than under the current rule.
A member stated, he like the idea of the rule stating the presentencing investigation report is public, but really not giving the public a lot of information. However, the defendant and the prosecution should get more information than the public to avoid reliance upon the court's summary.
Committee members questioned whether the sentence on page 37, lines 85-87 should be removed. The sentence provides: "The presentence report is open to the public for examination, inspection, and copying." Mr. McLean MOVED to adopt the proposal with the deletion of lines 85-87. Ms. Monson seconded. Motion FAILED.
Committee members commented, if the sentence is removed, the rule makes it appear the presentence investigation report is open to the public, because the rule is defining the addendum as being confidential. Others argued, under the current rule, the presentence investigation report is already open to the public.
Judge Hunke MOVED to adopt Rule 32 as proposed on pages 34-40. Mr. Kapsner seconded. Motion FAILED by a vote of 6 to 8.
Mr. Odegard MOVED to reconsider the proposal with an additional amendment on page 37, lines 87-90, as follows: "Any addendum to the presentence report is confidential and may not be given to, copied, or read by the parties or the public, unless the
court orders otherwise." Ms. Schmitz seconded. The motion to reconsider CARRIED.
Committee members stated, the proposed amendment would mean the probation officer could not guarantee confidentiality. If a probation officer promises someone confidentiality, a judge should not be allowed to destroy the probation officer's promise of confidentiality. The Committee noted, Section 12.1-13-01, N.D.C.C., provides it is a crime to disclose information that is confidential by law. Committee members also stated, in high publicity cases, judges will disclose everything to the public if the judge has discretion to order otherwise.
Others argued, judges can be trusted. The court should make the final decision regarding confidentiality rather than the probation officer. Under the amendment, the court could select who would see what portions of the report. The amendment is not an all or nothing proposition.
Judge Hunke MOVED to adopt proposed Rule 32 with the additional amendment on lines 87-90. Ms. Schmitz seconded. Motion FAILED.
Justice Sandstrom invited Committee members to submit proposals to staff for the next meeting.
RULE 4, N.D.R.Civ.P. - PERSONS SUBJECT TO JURISDICTION-PROCESS-SERVICE (PAGES 46-51 OF THE AGENDA MATERIAL)
The Committee continued its discussion of the proposed amendment to Rule 4 from the last meeting. The proposal addresses the problem of plaintiff's commencing actions, but not filing the complaint. Cases then sit, unless the defendant pays the filing fee to get the complaint filed.
The proposal on page 48 allows the defendant to serve a demand upon the plaintiff to file the complaint. Under the proposal, if the plaintiff does not file the complaint within 20 days after the service of demand, service of the summons is void, and the plaintiff will have to reserve the summons to commence the action.
Staff explained, the proposal contains an additional sentence suggested by the Committee at the last meeting. The additional sentence provides: "The demand must contain notice that if the complaint is not filed within 20 days, service of the summons is void under this rule." Mr. Kapsner MOVED to adopt the additional sentence on lines 25-27. Judge Foughty seconded. The motion to amend CARRIED.
Committee members argued the proposal is draconian. The plaintiff could lose its case if the statute of limitations runs. The sanction is not commencerate with the harm. As an alternative, it was suggested paragraph 4 should provide for additional taxation or attorney's fees to provide a sanction more equivalent to the harm.
Others argued, requiring the plaintiff to timely file is not harsh. The plaintiff is not being required to do anything more burdensome than if actions were commenced by filing. In addition, the proposal preserves commencement by service to allow a period of negotiation without court involvement. If nothing can be accomplished by not having the action filed, the defendant should be able to require the plaintiff to file the action.
Mr. Boughey MOVED to delete paragraph 3, and to adopt paragraph 4 to allow a defendant to recover the filing fee if the defendant has to file the action. Ms. Moore seconded. Committee members stated, if the complaint really is outrageous and the action commenced for harassment purposes, the defendant can get Rule 11 sanctions. Motion FAILED.
The Committee questioned whether the proposed amendment should be in Rule 4 or Rule 5. Rule 5 governs filing. The Committee decided the provision should be in Rule 4, because the procedure for demanding filing of the complaint is analogous to the procedure for demanding service of the complaint in subdivision (c)(2).
Mr. Kapsner MOVED to adopt the proposal as set forth on pages 48-51. Mr. Odegard seconded. Motion CARRIED.
RULE 43, N.D.R.Crim.P. - PRESENCE OF THE DEFENDANT (PAGES 52-58 OF THE AGENDA MATERIAL
At the last meeting, the Committee amended Rule 43 to follow the federal rule more closely. However, the explanatory note was not approved. The Committee wanted to first add a provision clarifying subdivision (b) and (c) do not give a defendant the right to be absent. The Committee was concerned subdivision (b) and (c) might be misinterpreted as giving a defendant the right not to be present.
Staff explained, most of the explanatory note is overstruck because the explanatory note is comparing North Dakota's rule to the 1971 preliminary draft of the federal rule. The explanatory note is outdated and inaccurate.
Professor Kraft MOVED to delete lines 132-137. Those lines create confusion rather than provide clarification. Judge Hunke seconded. Motion CARRIED. Judge Leclerc MOVED to adopt
the explanatory note to Rule 43 as amended. Ms. Schmitz seconded. Motion CARRIED.
RULES 54 AND 59, N.D.R.Civ.P. - POST JUDGMENT MOTIONS (PAGES 59-63 OF THE AGENDA MATERIAL)
The Committee considered amendments to Rules 54 and 59. The amendments achieve consistency with amendments made by the Committee at the last meeting to other post-judgment motion rules. The proposals extend the time for moving for attorney's fees, or to alter or amend the judgment, from 10 to 15 days. The operative date for determining when the motion must be made is changed to "served and filed" rather than just "served."
It was suggested, justice is not served by lengthening the process. Others stated, the extensions are for post-judgment motions, and that the delay is not as significant as compared to pretrial matters.
Mr. Kapsner MOVED to adopt the proposed amendments to Rules 54 and 59. Ms. Schmitz seconded. Motion CARRIED.
RULE 4, N.D.R.App.P. - APPEAL--WHEN TAKEN (PAGES 64-68 OF THE AGENDA MATERIAL)
Staff explained, the proposed amendment relates to the amendments to the rules of civil procedure governing post-judgment motions which were previously approved by the Committee. To obtain consistency, Rule 4 is changed to require "service and filing" rather than just "service." Also, the time when a motion for relief under Rule 60 must be made in order to suspend the time for appeal is extended from 10 to 15 days. The amendment avoids confusion as to whether the motion is really a Rule 60 motion for relief or a Rule 59 motion to alter or amend the judgment by making the time the same as to when the motion must be made to suspend the time for appeal.
Professor Kraft MOVED to adopt Rule 4 as proposed. Judge Leclerc seconded. Motion CARRIED.
APPENDIX FORM 7, N.D.R.Crim.P. - CRIMINAL JUDGMENT AND COMMITMENT (PAGES 69-84 OF THE AGENDA MATERIAL)
The Committee reviewed Form 7 and decided the form is confusing, because the form does too many things by providing sentencing options. Rather than having an omnibus form, the Committee decided it would be clearer and simpler to have separate forms addressing the various sentencing options.
The Committee considered the proposals in the material which provide a separate form for criminal judgment and commitment, partial suspension of sentence, suspended execution of sentence, and for an order deferring imposition of sentence. The forms are from the North Dakota Prosecutors' Form Book, but contain additional changes.
Judge Leclerc MOVED to delete the phrase "at hard labor" throughout the forms. Ms. Schmitz seconded. The Committee did not think the phrase was necessary or added anything. Motion CARRIED.
Judge Leclerc MOVED to approve the four separate forms and to eliminate current Form 7. The form is not used. Mr. Odegard seconded. Motion CARRIED.
RULE 6.7, NDROC - JUROR NOTE TAKING (PAGES 85-87 OF THE AGENDA MATERIAL)
At the last meeting, the Committee approved the substance of proposed Rule 6.7, which allows juror note taking. On page 87, the Committee considered an alternative draft of the proposal.
Committee members stated the style changes are an improvement. Judge Hagerty MOVED to make an additional change, as follows: "The court may allow jurors to take notes during trial with
notepads and pencils supplied supplies provided by the court." Judge Leclerc seconded. Motion CARRIED.
Committee members expressed concern about juror notes being used for improper purposes after trial. Jurors should be able to take notes without having to worrying about others reading their notes at a later time. Committee members thought juror notes should be destroyed to prevent the losing attorney from seeking access to the notes. At the end of line 13, Mr. Kapsner MOVED to add the following sentence: "All notes taken must be returned after deliberation and destroyed at the direction of the court." Mr. McLean seconded. Motion CARRIED.
Judge Hunke MOVED to adopt the alternative draft on page 87 with the changes made by the Committee. Mr. McLean seconded. Motion CARRIED.
RULE 10, N.D.R.App.P. AND ADMINISTRATIVE RULE 39 - TRANSCRIPT SPECIFICATIONS (PAGES 88-103 OF THE AGENDA MATERIAL)
Staff explained, Rule 10 and Administrative Rule 39 each contain specifications for transcripts. The proposal consolidates the specifications into Rule 10. The amendment to Administrative Rule 39, Section 7, incorporates Rule 10 by cross-reference.
Judge Hagerty MOVED to adopt Rule 10 as proposed, including the explanatory note. Judge Leclerc seconded. The explanatory note is outdated and explains how adoption of Rule 10 in 1973 changed former practice. Motion CARRIED.
Judge Leclerc MOVED to refer Administrative Rule 39 to the Council of Presiding Judges for additional consideration. Mr. Odegard seconded. Motion FAILED. The Committee thought it would be more appropriate for the Supreme Court to refer the proposed amendment to the Council of Presiding Judges if additional study is needed.
Judge Hunke MOVED to adopt Administrative Rule 39 as proposed on pages 98-103. Ms. Schmitz seconded. Motion CARRIED.
RULE 4, N.D.R.Civ.P. - PERSONS SUBJECT TO JURISDICTION-PROCESS-SERVICE (PAGES 104-110 OF THE AGENDA MATERIAL)
Representatives from the North Dakota Sheriff's Association addressed the Committee. The representatives present were Dick Garvey, Deputy Sheriff, Cass County Sheriff's Department; Sharlene Schuh, Deputy, Burleigh County Sheriff's Department; Art Olson, Deputy, Burleigh County Sheriff's Department; and Pat Heinert, President North Dakota Sheriff's and Deputies Association.
The North Dakota Sheriff's Association requested Rule 4 be amended to allow personal service by "delivering a copy of the summons to the individual's spouse residing with him (or her) at any place the spouse may be found." The rationale for the proposal is that residence service has become extremely difficult with both spouses working. When the rules were adopted, one spouse usually remained at home. Also, the amendment is needed because the number of papers being served is increasing significantly. For example, in one office between 1995 and 1996, there was a 4.7% increase in the number of papers served.
Typically, when service is going to be made, the process server will call the person and leave a message. The process server generally does not go to the person's residence. The problem is a spouse cannot go to the sheriff's office to accept service for the other spouse. The sheriffs have to make arrangements to go to the person's house to make residence service if the person to be served cannot come to the sheriff's office. The public wants to be able to get the papers without having to make special arrangements for the process server to come to their home. The public does not understand why a spouse can be given the papers at their home, but not at the office of the process server.
Representatives from the Sheriff's Association indicated, the language "residing with him or (her)" is in the proposal to prevent spousal service from being broader than dwelling house
service. Also, service is more likely to be achieved by leaving the papers with a spouse away from the residence than with someone else residing in the home. Currently, under dwelling house service, the papers can be left with anyone residing in the home of suitable age and discretion.
The Committee thought, any risk of ineffective service under the proposal already exists under the current rule. For instance, currently with dwelling house service, service can be accomplished by leaving a copy of the summons with the spouse who is divorcing the other spouse if both reside therein.
The Committee questioned whether there is an element of protection by having the process server go to the residence. Others stated, going to the residence does not establish the person being served actually lives at the residence. The process server has to take the word of the person accepting service that the person to be served really resides with them just as under the proposal.
Committee members questioned whether one spouse will always give the papers to the other spouse. For instance, in a collection case caused by a gambling addiction, a spouse may not give the other spouse the papers. The spouse may want to hide the debts he or she has accrued through their gambling addiction. Committee members concluded, going to the residence does not create a greater likelihood that the other spouse will get the papers. A spouse can still hide the papers from the other spouse even if service is made at the dwelling house.
Committee members stated, Rule 4 is designed to allow the means of service most likely to result in service. If a plaintiff questions whether service is actually going to be achieved by leaving the papers with a spouse, the plaintiff could request the papers not be left with the spouse. In addition, service of process can be challenged as being insufficient if the person does not actually receive the papers. The Committee concluded, every problem with the proposal already exists under the current state of law. The proposal should be tried to see if it works.
Committee members expressed concern about service taking place at a spouse's place of employment. Professor Kraft MOVED to amend the proposal, on page 107, as follows: "delivering a copy of the summons to the individual's spouse residing with him (or her)
at any place the spouse may be found at the office of the process server;". Mr. Odegard seconded. Motion CARRIED. If the process server does not have an office, the process server can meet the person to be served at another office such as the sheriff's office. The intent of the amendment is to prevent a spouse from being embarrassed at their place of employment.
Professor Kraft MOVED to adopt Rule 4 as amended. Ms. Schmitz seconded. Motion CARRIED.
RULE 5.1, N.D.R.Crim.P. - PRELIMINARY EXAMINATION (PAGES 111-117 OF THE AGENDA MATERIAL)
The Committee considered a request from Judge Wright to amend Rule 5.1. Judge Wright asked for an amendment specifying whether a judge who presides over the preliminary hearing can also preside over the subsequent trial.
Committee members commented, judges should disqualify themselves even if they are not prohibited by rule from presiding over the trial if there is an appearance of impropriety. If the judge's impartiality might reasonably be questioned, the judge should honor the party's request for disqualification. There should not be a blanket prohibition, otherwise judges in rural areas will not preside over felony trials. There are not enough available judges.
Committee members stated, presiding over a preliminary hearing does not make a judge inherently prejudiced. The determination of probable cause is a limited function which does not mean the judge is convinced of the defendant's guilt. Judges commonly learn information about a case before trial through participation in pretrial proceedings.
Committee members noted other pretrial events raise the same issue. Committee members expressed concern about the same judge presiding over a suppression hearing involving a warrant issued by the judge. Judges commented they are exposed to much more provocative material in applications for arrest warrants than at preliminary hearings.
A Committee member suggested adding to Rule 23, N.D.R.Crim.P., the provision following: "A judge who has acted in any preliminary matter is not disqualified from presiding over the trial." Committee members disagreed. In some instances, a judge should disqualify him or herself.
Committee members stated the issue whether a judge is disqualified is a substantive issue. The issue should be left for litigation and the individual conscience of the court. A blanket rule should not be adopted. Mr. Kapsner MOVED to adopt the style changes on pages 115-117, and to delete the sentence on lines 11-13 which provides as follows: "A judge who finds probable cause is [not] disqualified from presiding over any subsequent proceeding in the pending prosecution." Mr. Heinley seconded. Motion CARRIED.
RULE 35.1, N.D.R.App.P. - SUMMARY DISPOSITION (PAGES 118-126 OF THE AGENDA MATERIAL)
The Committee considered a proposal allowing the Supreme Court to reverse by summary opinion. Currently, Rule 35.1 only allows the Supreme Court to affirm by summary opinion. The Committee examined rules from other jurisdictions. Kansas allows the Supreme Court to reverse by summary disposition when there is a prior controlling appellate decision dispositive of the appeal. The proposal is similar to the Kansas rule.
Mr. Kapsner MOVED to adopt the proposed amendment on pages 125-126. Mr. Schmitz seconded. Motion CARRIED.
RULE 42, N.D.R.App.P. - DISMISSAL; MOOTNESS (PAGES 127-129 OF THE AGENDA MATERIAL)
The Committee reviewed a proposal requiring the parties to file a notice with the clerk of the Supreme Court when an issue appealed becomes moot. The Supreme Court wants to be notified before oral argument.
Committee members stated the proposal begs the question as to what is moot. Attorneys will say they did not advise the court because they did think the issue was moot. The parties will argue the appeal is not moot because they want the question answered. It was suggested the first sentence of the proposal should provide: "When an issue appealed
becomes moot might be considered moot."
Committee members stated an amendment is not needed. Attorneys already have a duty of candor towards the tribunal under NDRPC 3.3. Committee members stated Ashley Education Association v. Ashley Public School District, 556 N.W.2d 666 (N.D. 1996), already gives attorneys an obligation to notify the court.
Others stated attorneys would be more aware of the obligation to notify the court if the requirement is directly stated in a rule. Another reason for adopting a rule is to allow matters not in the record to be submitted. Otherwise, the court is constrained to matters in the record on appeal.
Committee members argued, the issue of mootness can be handled by appropriate motion. If either party concludes the motion appealed has become moot, a motion to dismiss can be filed. If the parties agree the appeal is moot, they can file a stipulated motion for dismissal. An additional rule is not needed.
Others said, if neither party wants the appeal dismissed, neither party will make a motion. Yet, the court needs to be advised of the change in circumstances. It was suggested the
parties should advise the court when there is a change of circumstances. The question of mootness is a conclusion.
On page 128, line 2, Mr. Heinley MOVED to added the phrase: ",or any of the parties," after the word "parties." Currently, the proposal creates an impression that the notification is a joint effort. Judge Leclerc seconded. Motion CARRIED.
It was suggested lines 2 and 3 should be amended as follows: "
file a notice with the clerk of the supreme court advising advise the court in writing."
Other Committee members argued a notice should be required rather than simply advising the court in writing. A notice is a legal document with a caption. Otherwise the court will just get an informal letter.
Ms. Moore MOVED to postpone discussion of proposed Rule 42 until the next meeting. In the meantime, staff is to prepare additional drafts and alternatives for the Committee's consideration. Judge Leclerc seconded. Motion CARRIED.
The Committee noted, a party may want to notify the court an appeal has become moot, but also argue the appeal should still be heard because the controversy is one of great public interest, involves the authority and power of public officials, or is a matter capable of repetition.
RULE 6.8, NDROC - JUROR QUESTIONS (PAGES 130-144 OF THE AGENDA MATERIAL)
The Committee considered whether North Dakota should adopt a rule allowing a juror to submit a written question to the court which the juror would like asked to a witness. The Minnesota Supreme Court is currently considering adoption of Section 10(j), Minn.Civ. Trial Book, which would allow juror questions. Section 10(j) was distributed to the Committee by Mr. McLean.
Mr. McLean requested the Committee to consider adopting Section 10(j) with the following change to the first sentence: "
A juror may In a civil case, a trial court may allow a juror tosubmit a question for a witness through the judge." The change clarifies, the judge has discretion whether to allow juror questions.
The Committee noted Rule 614, N.D.R.Ev., allows the court to question a witness. Committee members stated, federal judges are allowing jurors to ask questions through the judge under the apparent authority of Rule 613, Fed.R.Ev.
Committee members stated, experience with juror questions has revealed few questions are asked per trial and only about one-half of the questions end up being asked by the court.
Committee members stated, jurors need to be allowed to ask questions. They may have something wrong, or something may be capable of being clarified. Not only do jurors get answers by being able to ask questions, but the lawyers are provided with ongoing guidance as to what testimony needs to be developed. Allowing jurors to ask questions provides a reality check and empowers the jury.
The Committee noted, in Tucson, Arizona, every juror is given a blank sheet of paper and all jurors are required to return the paper so questions can be presented unanimously.
Mr. McLean reviewed a study in Wisconsin which examined 81 trials where jurors were allowed to ask questions. The study concluded: 1) Jurors generally do not ask inappropriate questions; 2) juror questions help arrive at the truth; 3) jurors are generally not embarrassed or angry if their question is not asked; 4) jurors do not become advocates by asking questions; and 5) jurors do not over emphasize the importance of their own questions at the expense of other evidence.
The Committee questioned the language of the rule requiring the court to review the propriety of the question with counsel on the record outside "the presence of the jury." The Committee questioned whether the word "presence" precluded sidebar discussions. Committee members suggested the word "presence" should be substituted with the word "hearing." The word "presence" suggests the jury must be out of the room. Substituting the word "hearing" would allow the court to confer with counsel at a sidebar without having to remove the jury from the room.
Mr. Boughey MOVED to change the word "presence" to the word "hearing" and to adopt the changes proposed by Mr. McLean. Ms. Schmitz seconded. Motion CARRIED.
Mr. McLean MOVED to adopt Section 10, with the suggested changes. Ms. Monson seconded. Committee members stated, often after trial, someone will say they wanted a certain question answered. The Motion CARRIED.
The meeting adjourned at approximately 3:00 p.m.