Joint Procedure Committee - January 27-28, 2000 Minutes

Joint Procedure Committee

MINUTES OF MEETING

Joint Procedure Committee

January 27-28, 2000

TABLE OF CONTENTS

1999 Annual Rules Package 2
Rule 44, N.D.R.Crim.P. - Ex Parte Application for Financial Assistance 3
Rule 4, N.D.R.App.P. - Appeal--When Taken 4
Rule 7, N.D.R.App.P. - Bond for Costs on Appeal in Civil Cases 9
Rule 10, N.D.R.App.P. - The Record on Appeal 9
Change in Location or Venue of a Civil Proceeding 13
Rule 6, N.D.R.Civ.P.; Rule 45, N.D.R.Crim.P.; Rule 26, N.D.R.App.P.- Time Computations 16
Rule 10.1, N.D.R.Ct. - Cellular Telephones 17
Minutes from the N.D. Consensus Counsel ADR Culture Group 18
Rule 8.2, N.D.R.Ct. - Interim Orders in Domestic Relations Cases 19
Article XII, N.D.R.Ct. - Collections 21

CALL TO ORDER

The meeting was called to order at approximately 1:00 p.m., January 27, 2000, by Justice Dale V. Sandstrom, Chair.

ATTENDANCE

Present:

Justice Dale V. Sandstrom
Honorable Gail Hagerty
Honorable Ronald L. Hilden
Honorable Lawrence A. Leclerc
Honorable David W. Nelson
Honorable Mikal Simonson
Mr. Michael R. Hoffman
Mr. John C. Kapsner
Professor Larry Kraft

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Mr. Daniel S. Kuntz
Ms. Sherry Mills Moore
Mr. James T. Odegard
Mr. Michael G. Sturdevant

Absent:

Honorable Donovan Foughty
Honorable M. Richard Geiger
Honorable Maurice R. Hunke
Honorable Kirk Smith
Mr. Ronald H. McLean
Ms. Patricia R. Monson
Ms. Cathy Howe Schmitz

Staff:

Mr. Gerhard Raedeke

PRELIMINARY MATTERS

The Committee welcomed its newest member, Michael Sturdevant.

The Committee was informed meetings are scheduled for April 27-28, 2000, in Fargo; September 28-29, 2000; January 25-26, 2001; April 26-27, 2001; and September 27-28, 2001.

Staff distributed handouts and comments received in response to the proposals.

APPROVAL OF MINUTES (PAGES 1-21 OF THE AGENDA MATERIAL)

Judge Leclerc MOVED to approve the minutes as submitted. Judge Simonson seconded. The motion CARRIED.

1999 ANNUAL RULES PACKAGE (PAGES 22-25 OF THE AGENDA MATERIAL)

The Committee reviewed changes made by the Supreme Court to the 1999 annual rules package. The Supreme Court changed proposed N.D.R.Ct. 6.11 to allow predeliberation discussion by jurors "without objection" instead of "with consent of all

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parties." Putting the burden on the parties to object gives predeliberation discussion a more positive tone.

The Supreme Court changed proposed N.D.R.Ct. 11.1, which provides a motion procedure for an unlicenced attorney to obtain permission to appear in a North Dakota court proceeding. The change prohibits a resident attorney not licensed in North Dakota from appearing in a North Dakota state court proceeding. A representative of the State Bar Board appeared at the hearing before the Supreme Court and argued an attorney living in North Dakota should have to get a license to appear in a North Dakota state court proceeding.

RULE 44, N.D.R.Crim.P. - EX PARTE APPLICATION FOR FINANCIAL ASSISTANCE (PAGES 26-31 OF THE AGENDA MATERIAL)

At the last meeting, the Committee approved by a two-thirds vote the addition of subdivision (b) to Rule 44. On page 27, subdivision (b) permits an indigent defendant to apply ex parte for financial assistance. Staff explained the proposal was back before the Committee for additional consideration. As amended by the Committee at the last meeting, lines 16-17 do not read correctly.

Lines 16-17 provide: "The application and any subsequent proceeding and order must be maintained in the record under seal, except upon further order of the court." The language appears to require a proceeding to be maintained in the record, rather than requiring a record of the proceeding. The language also could be construed as requiring any proceeding after the application, including the trial, to be conducted confidentially under seal.

For discussion purposes, Judge Leclerc MOVED to adopt proposed Rule 44 on page 27. Ms. Moore seconded. Without objection, the Committee amended the proposal on lines 17-19 as follows: "The application and record of any ~~subsequent~~ proceeding on the application must be kept under seal, except upon ~~further~~ order of the court."

Committee members questioned whether the person who writes the check funding the defense would have the obligation upon request to disclose the payment under the State's open record laws. Still others said, the payment is not what the defense wants to keep confidential. The defense wants to keep its theories of the case and trial strategies confidential.

Committee members stated, the proposal makes a change because the new language does not provide for the confidentiality of the order. The language deleted on lines 16-17

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made the order confidential. Mr. Hoffman MOVED to amend lines 17-19 as follows: "The application, ~~and~~ the record of any proceeding, and the order on the application must be kept under seal, except upon order of the court." Judge Leclerc seconded. The motion CARRIED unanimously.

The Committee stated, the proposal does not mean a judge should close all proceedings in a case to the public; just the proceedings regarding the ex parte application for financial assistance.

The main motion to amend Rule 44 CARRIED unanimously.

On page 31, the Committee considered an amendment to N.D. Sup. Ct. Admin. R. 41. The amendment lists N.D.R.Crim.P. 44(b) in the Appendix to Administrative Rule 41. The Appendix contains a list of statutes and rules making records confidential.

Ms. Moore MOVED to adopt the proposed amendment to Administrative Rule 41. Mr. Sturdevant seconded. The motion CARRIED unanimously.

RULE 4, N.D.R.App.P. - APPEAL--WHEN TAKEN (PAGES 32-53 OF THE AGENDA MATERIAL)

At the last meeting, the Committee postponed consideration of Rule 4. The Committee wanted further study of the substantive procedural changes.

On page 47, the Committee discussed subdivision (a)(4)(B) on lines 31-34. Subparagraph (B) provides a procedure for getting a case remanded when a post-judgment motion is filed after a notice of appeal. Currently, Rule 4 does not specify the procedure. The parties will generally file a motion with the Supreme Court for remand, but the procedure is not apparent and there is confusion.

The Committee discussed whether the clerk of district court or a party should be responsible for notifying the Clerk of the Supreme Court when a case needs to be remanded back to the district court for disposition of a post-judgment motion. Comments were reviewed from the Clerk of the Supreme Court. She stated notification to the Supreme Court should be in writing. She also expressed concern, a clerk of district court may not recognize when a case needs to be remanded for disposition of a post-judgment motion.

Committee members said there should be a paper trail. In subdivision (a)(4)(B), on lines 31-34, Judge Simonson MOVED to add the phrase "in writing" as follows:

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"If a party timely files with the clerk of district court any motion listed in Rule 4(a)(4)(A) and a notice of appeal is filed before disposition of the motion, the clerk of district court shall notify the clerk of the supreme court in writing, and the supreme court shall remand the case to the district court for disposition of the motion."

Judge Simonson also moved to amend subdivision (b)(3)(B) on lines 103-106 with the same change. Lines 103-106 contain an identical criminal counterpart to the civil provision in subdivision (a)(4)(B). The motion was seconded. The motion CARRIED unanimously.

Some Committee members stated, the clerk of district court should be responsible for notifying the Clerk of the Supreme Court. Otherwise, the attorneys may allow the trial court to decide the post-judgment motion while the appeal is pending in the Supreme Court. Neither party may have the incentive to ask for remand of the case. They may want to see how the trial court would rule. Eventually, the losing party may argue the district court lost jurisdiction to decide the post-judgment motion.

Committee members stated, it should be clear to the clerk when a case is on appeal. The record will have been forwarded to the Supreme Court. The clerk will come to the judge and say what do I do with this motion. To rule on the motion, a judge would have to tell the clerk to get the record back from the Supreme Court. The motion will not sit forever.

Others said, it is easier for the party who files the motion to notify the Supreme Court. The record may not have been forwarded to the Supreme Court at the time the motion is filed. It may not be apparent to the clerk that the record needs to be remanded. Likewise, if a post-judgment motion is still pending and a notice of appeal is filed, confusion is likely. In addition, the rule is premised on a post-judgment motion being timely. A clerk will not know whether a post-judgment motion is timely. The clerks will also have a difficult time identifying which particular motions require remand. The clerk may not read the motion and realize the case needs to be remanded.

Judge Hagerty MOVED to amend lines 31-34 as follows:

"If a party timely files with the clerk of district court any motion listed in Rule 4(a)(4)(A) and a notice of appeal is filed before disposition of the motion, on request of the party the clerk of district court shall notify the clerk of the supreme court in writing, and the supreme court shall remand the case to the district court for disposition of the motion."

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Committee members stated, having the parties notify the clerk of district court and the clerk of district court notify the Supreme Court causes duplication. The parties could just as well notify the Clerk of the Supreme Court rather than the clerk of district court. The motion was withdrawn without objection.

Judge Hagerty MOVED to amend lines 31-34 as follows:

"If a party timely files with the clerk of district court any motion listed in Rule 4(a)(4)(A) and a notice of appeal is filed before disposition of the motion, ~~the clerk of district court~~ the party shall notify the clerk of the supreme court in writing, and the supreme court shall remand the case to the district court for disposition of the motion."

Mr. Kuntz seconded.

Mr. Kapsner MOVED to amend the amendment as follows: "the party filing the motion . . . ." Ms. Moore seconded. The motion to amend the amendment CARRIED. Judge Hagerty's motion to amend CARRIED.

Without objection, the Committee agreed to make the parallel change in subdivision (b)(3)(B) to lines 103-106.

On line 31, the Committee questioned whether the word "timely" should be deleted. A motion does not usually specify whether it is timely. If the Supreme Court sends back an untimely motion, the parties can argue the timeliness of the motion to the trial court. Whether a motion is timely will be determined by the trial court on remand. Others said, alternatively the Supreme Court may know a motion is untimely and not want to send it back. The proposal should not require the Supreme Court to remand a case. Otherwise, a party could intentionally file an untimely post-judgment motion to delay the proceeding.

Judge Leclerc MOVED to amend lines 31-34 as follows:

"If a party ~~timely~~ files with the clerk of district court any motion listed in Rule 4(a)(4)(A) and a notice of appeal is filed before disposition of the motion, the party filing the motion shall notify the clerk of the supreme court in writing, and the supreme court ~~shall~~ may remand the case to the district court for disposition of the motion."

Mr. Kuntz seconded. The motion CARRIED. Without objection, the Committee agreed to amend the parallel language in subdivision (b)(3)(B) on lines 103-106.

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The Committee questioned whether there is a conflict between subdivision (c)(4)(B) on lines 35-38 and the case citation in the explanatory note on lines 149-151. Lines 35-38 provide a notice of appeal becomes effective to appeal a judgment when the order disposing of a post-judgment motion is entered. The case citation in the explanatory note provides:

"The jurisdiction of the supreme court attaches upon the filing of a notice of appeal, and the trial court ordinarily has no further jurisdiction in the matter. E.g., United Accounts v. Teladvantage, Inc., 499 N.W.2d 115, 118 (N.D. 1993)."

Committee members stated, lines 35-38 do not conflict with the case citation because the rule is simply saying the notice of appeal becomes effective when the order disposing of the post-judgment motion is entered. The language clarifies a new notice of appeal does not need to be filed after the case is remanded and the order disposing of the post-judgment motion entered. The language in the rule does not give jurisdiction to the district court to consider a post-judgment motion after a notice of appeal has been filed.

The Committee discussed whether the case citation in the explanatory note should be deleted. Staff explained the language was put in the explanatory note because the case is not contained in the annotations to Rule 4 and the principle is not stated in the rule. The provision explains why it is necessary for a case to be remanded if a notice of appeal is filed before disposition of a post-judgment motion. Committee members stated, ordinarily cases should not be cited in the explanatory note. Mr. Kapsner MOVED to delete lines 149-151 in the explanatory note. Mr. Kuntz seconded. Others said, deleting the case from the explanatory note does not abolish the case law. The motion CARRIED.

The Committee said, subparagraphs (B) and (C) on page 47 are inconsistent. Subparagraph (B) requires a party to request the Supreme Court to remand the case if a post-judgment motion is filed after the notice of appeal is filed. Subparagraph (C) says if a motion is pending, the notice of appeal does not become effective until disposition of the motion.

Committee members stated, the presumption under subparagraph (B) is the motion is being filed after the notice of appeal. Members said it should be made clear, subparagraph (B) deals only with motions filed after a notice of appeal. Others suggested, subparagraph (C) should provide the notice of appeal becomes effective after the case is remanded and the order disposing of the post-judgment motion is entered.

Committee members stated, one provision is needed to address the scenario where a party files a notice of appeal and there is still a motion pending in the trial court. The other

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provision needs to address the scenario where a motion is filed after the notice of appeal is filed. Currently, the provisions are backwards. Subparagraph (C) should be substituted for subparagraph (B).

The distinction is if a post-judgment motion is filed before the notice of appeal, the record does not need to be sent up to the Supreme Court. The notice of appeal should simply become effective when the order disposing of the last such remaining motion is entered. If a motion is filed after the notice of appeal, then there is a need to have the case remanded because the record will have been forwarded to the Supreme Court.

Committee members stated subparagraph (B) needs to be amended to clarify it only applies when a motion is filed after the notice of appeal.

Mr. Kuntz MOVED to amend lines 32-34 as follows:

"If a party files with the clerk of district court any motion listed in Rule 4(a)(4)(A) ~~and~~ after a notice of appeal is filed ~~before disposition of the motion~~, the party filing the motion shall notify the clerk of the supreme court in writing, and the supreme court may remand the case to the district court for disposition of the motion."

Mr. Sturdevant seconded the motion. The motion CARRIED.

Judge Hagerty MOVED to reverse the order of subparagraph (B) on line 31 with subparagraph (C) on line 35. The motion CARRIED.

The Committee discussed whether Rule 4 should expressly provide subdivision (a) applies to a "special proceeding." Currently, Rule 4 only states subdivision (a) applies to a "civil case." Committee members stated, the rule has been in effect since 1973 and the current classification with subdivision (a) addressing civil cases and subdivision (b) addressing criminal cases has worked fine. The current classification should be left alone.

There might be statutory special proceedings which have different requirements for a notice of appeal and different statutory times for appeal. Expressly stating subdivision (a) applies to special proceedings could have the effect of superseding statutory requirements. The Committee also noted, under the federal rule, the phrase "civil cases" has been broadly construed to cover all cases that are not criminal prosecutions. 20 Moore's Federal Practice § 304.10 (3d ed. 1999).

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Judge Leclerc MOVED to strike the words "or special proceeding" on lines 4-5 in subdivision (a). Ms Moore seconded. The motion CARRIED.

The Committee discussed whether an extension of time for appeal should be allowed for "good cause" in addition to "excusable neglect." The Committee noted, a party may not be neglectful who moves for an extension of time before the time for appeal has expired. "Good cause" covers the situation where a party moves for an extension of time without being neglectful.

The Committee questioned why the State gets 30 days to appeal in a criminal case, but the defendant only gets 10 days. Judge Leclerc MOVED to change the time for appeal from 30 days to 10 days for the State. The motion FAILED for the lack of a second.

The Committee voted on the main motion to adopt Rule 4 as amended. The motion CARRIED unanimously. Committee members indicated they want to look at Rule 4 again after it is rewritten.

Committee members noted, the federal rule contains a provision for when a party mistakenly files in the appellate court rather than in the trial court. Committee members questioned the Supreme Court's procedure when a notice of appeal is mistakenly filed in the Supreme Court.

RULE 7, N.D.R.App.P. - BOND FOR COSTS ON APPEAL IN CIVIL CASES (PAGES 54-57 OF THE AGENDA MATERIAL)

At the last meeting, a motion CARRIED to repeal N.D.R.App.P. 7. However, the Committee wanted to review the explanatory note as it would appear with Rule 7 repealed. Judge Leclerc MOVED to adhere to the Committee's previous action and repeal Rule 7. Judge Simonson seconded. The Committee indicated, requiring a bond for costs creates a procedural exercise without significant purpose. The motion CARRIED unanimously.

RULE 10, N.D.R.App.P. - THE RECORD ON APPEAL (PAGES 58-73 OF THE AGENDA MATERIAL)

At the last meeting, the Committee postponed consideration of Rule 10. Staff explained, on page 65, lines 40-41 contain a substantive change which was inserted per the discussion of the Committee at the last meeting. Lines 40-41 provide "in a criminal action, a transcript may only be ordered of the proceedings relevant to the appeal." Staff explained

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the rest of the proposal contains style changes. The portions of Rule 10 that follow the federal rule are amended to follow the federal rule. The other subdivisions are broken into paragraphs and subparagraphs to follow the format of the federal rule.

Committee members stated in criminal cases indigent defendants and the State will order everything because they are not paying for the cost of the transcription. Court reporters are having to transcribe everything, even if not relevant to the appeal.

Others Committee members stated, the problem is you will lose if you appeal a case and later find out that you do not have the part of the transcript you need. The only way to cover yourself is to order everything. At the time the notice appeal is filed, an attorney may not know what portions of the transcript are relevant to the appeal. The proposal would place too great a burden on a criminal defense attorney to figure out immediately what is needed for appeal. The issues may not be clearly defined at the point in time when the transcript is ordered.

At the time a notice of appeal if filed, an attorney is not required to state the issues that are going to be appealed. An attorney who is hired for the purposes of appeal, but did not try the case, will not know what the issues are for appeal until the attorney reads the entire transcript. Others said, if the proceeding was recorded an attorney could listen to the tape to decide what needs to be transcribed.

Committee members stated, the standard should not be different in a criminal action than in a civil action. In a criminal action, someone's liberty is at stake. What is allowed to be ordered should not be limited. Furthermore, the current rule allows the parties to stipulate to exclude from the transcript portions of the record not necessary to the issues raised on appeal. If an attorney is ordering too much and creating unnecessary expense, it should be taken into consideration when deciding whether to appoint the defense attorney to another case.

Committee members noted, the rule requires a transcript of the proceedings to be ordered in a case in which "an evidentiary hearing" was held. Committee members stated, the phrase "evidentiary hearing" is also the trigger under the current rule, but the requirement is broadly construed. It was noted, on appeal from a summary judgment, a transcript may be needed to determine what was considered by the trial court even though there was no evidentiary hearing.

It was stated, the court needs some way on its own to limit what is transcribed. Others said, a judge cannot convict and sentence a person and then decide what parts of the transcript are relevant on appeal. In addition, the determination of what is relevant would

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be difficult for a different judge. Members said, a criminal defendant should be able to get the complete transcript. It is burdensome, but it is reality.

A judge member stated, a court reporter is not present at a bail hearing, arraignment, or sentencing. The proceeding is tape recorded. Voir dire or oral argument is not recorded unless requested by one of the parties. Committee members questioned the constitutionality of not recording voir dire or oral argument unless requested.

On page 65, Mr. Kapsner MOVED to amend lines 37-43 as follows:

"(C) ~~in a civil action,~~ a complete transcript must be ordered, unless a stipulation is obtained from all affected parties specifying the portions which are not required for the purposes of the appeal;

~~(D) in a criminal action, a transcript may only be ordered of the proceedings relevant to the appeal; and~~

~~(E)~~ (D) the order for a transcript, and a copy of the stipulation of excluded portions, if applicable, must be filed with the clerk of district court with the notice of appeal."

Ms. Moore seconded. Committee members again expressed hesitancy about depriving a defendant of the right to portions of the transcript because of financial concerns. The motion CARRIED by a vote of 10 to 2.

The Committee reviewed the provisions in Fed.R.App.P. 10(b). Under the federal rule, the appellant orders the portions of the transcript the appellant considers necessary. If the entire transcript is not ordered, within 10 days after filing the notice of appeal, the appellant must serve on the appellee a statement of the issues the appellant intends to present on appeal and a copy of the order for transcript. If the appellee considers it necessary to have a transcript of other parts of the proceedings, the appellee must serve on the appellant a designation of the additional parts to be ordered.

Mr. Kuntz MOVED to refer the proposal back to staff and for staff to prepare a revised draft following the federal provisions governing an order for transcript. Judge Leclerc seconded.

The problem under North Dakota's current rule is that the parties will not stipulate to exclude from the transcript portions of the record without having the issues for appeal

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specified like in the federal rule. The federal rule also avoids the need to obtain a stipulation to exclude portions of the transcript.

The Committee recessed at approximately 4:00 p.m.

January 28, 2000 - Friday

The Committee reconvened at approximately 9:00 a.m.

The Committee continued its discussion as to whether the federal provisions governing an order for transcript should be incorporated into North Dakota's rule.

Committee members argued, the federal rule does not provide a solution. Like North Dakota's current rule, the federal rule does not provide an indigent defendant with any incentive not to order the entire transcript. Under the federal rule, the appellant still may not know what portions of the transcript are necessary for appeal without reviewing the entire transcript. Likewise, until the transcript is reviewed, it may be difficult for the appellant to serve a statement of the issues on the appellee. In addition, until the appellee reads the appellant's brief, the appellee may not know what portions of the transcript are needed.

The Committee voted on Mr. Kuntz's motion to amend. The motion FAILED by a vote of 5 to 7. On page 66, Mr. Kapsner MOVED to amend lines 42-43 as follows:

"(D) the order for a transcript~~, and a copy of the stipulation of excluded portions, if applicable,~~ must be filed with the clerk of district court with the notice of appeal."

Judge Hilden seconded.

Committee members explained the stipulation of excluded portions of the transcript must be included with the order for transcript so the court reporter knows what portions of the transcript to prepare. The motion was withdrawn without objection.

By consent, the Committee agreed to eliminate on lines 189-191 of the explanatory note the reference to the provisions already deleted by previous Committee action.

The Committee voted on the main motion to adopt proposed Rule 10 with the amendments made by the Committee. The motion CARRIED by a vote of 9 to 4.

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CHANGE IN LOCATION OR VENUE OF A CIVIL PROCEEDING (PAGES 74-98 OF THE AGENDA MATERIAL)

At the last meeting, the Committee instructed staff to prepare a rule governing a change in location of a hearing or trial and superseding the current statutes. The Supreme Court of Ohio, Washington, West Virginia, and Pennsylvania have all held venue is procedural and a proper subject of the court's rule making authority.

Staff gave an overview of the proposal on page 94. Subdivision (a) allows the court to change the location of a proceeding or a hearing. The location may be changed for the convenience of the parties or witnesses. Under subdivision (a), the parties will continue to file in the county of venue.

Subdivision (b) addresses a change in location of trial. The proposal incorporates the Burleigh/Morton County statute, N.D.C.C. § 28-04-05.1, which allows a trial to be held in either county. The proposal also allows a change in location of trial, if there is not an available courtroom. Under subdivision(b), filing continues in the county of venue. Just the location of trial is being changed. Jurors will still be from the county of venue.

Subdivision (c) provides for a true change of venue. The grounds for a change of venue are the statutory grounds in N.D.C.C. § 28-04-07. Under subdivision (c), the file must be transferred to the new county of venue.

For discussion purposes, Professor Kraft MOVED to adopt the proposal. Judge Nelson seconded.

Committee members stated, as enacted in 1997, N.D.C.C. § 28-04-10 is unworkable. A party cannot file an objection to a change in location of a trial not later than 10 days after the date of notice of assignment of the judge as the statute requires. The notice of trial goes out much later than the notice of assignment of the judge. No lawyer would ever be able to object.

Committee members stated, this is another example of the legislature causing procedural problems by its enactment of procedural statutes. Procedural statutes are not the providence of the legislature. Procedural statutes should always be superseded.

Committee members stated, Burleigh/Morton County also need to be able to change the location of a hearing for the convenience of the court. Currently, N.D.C.C. § 28-04-05.1 allows a trial or hearing to be held in either Burleigh or Morton County.

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Judge Hagerty MOVED to amend lines 6-7 as follows:

"(1) The court may change the location of a hearing or proceeding to a location outside the county of venue for the convenience of the court, parties, or witnesses."

Judge Simonson seconded. Committee members questioned whether the proposal should allow every court to change the location of a hearing or proceeding for its own convenience. Members commented, the motion to amend is not limited to Burleigh/Morton County. Concern was expressed. Allowing a change in location of a hearing for a judge's own convenience would lead to the perception the judiciary is creating regional trial centers. Judge Hagerty's motion was withdrawn without objection.

Judge Hagerty MOVED, in subdivision (a) to re-designate paragraph (2) as paragraph (3) and to add a new paragraph (2) as follows:

"(2) The court may change the location of a hearing or proceeding to an adjoining county if the county seats are less than ten miles apart."

Judge Leclerc seconded. The amendment limits when a court may change a proceeding to an adjoining county for its own convenience. Any appearance that regional trial centers are being created is avoided. To manage the calender more efficiently, Burleigh and Morton County need to switch back and forth. The courthouses are so close it is not a burden for people. The motion CARRIED.

On lines 12-13, Committee members questioned why the rule states the distance in kilometers in addition to miles. It was explained, in the Century Code distances are stated in metric measurements in anticipation of changing to the metric system. Judge Simonson MOVED to delete the reference to kilometers. Ms. Moore seconded. The motion CARRIED.

Committee members questioned, whether subdivision (a) and (b) could be combined into one subdivision. Others stated, subdivision (b) only allows the court to change the location of a trial within a judicial district. Subdivision (a) is not limited to the judicial districts. Members questioned whether a hearing or proceeding could be conducted outside the district.

Committee members stated, in some instances there may be a courtroom available, but the facilities may not be appropriate for trial of a particular case. For instance, the courtroom may not have suitable electronics or be large enough.

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Judge Leclerc MOVED to amend lines 14-15 as follows:

"(B) to another county if there ~~is not an available courtroom or if there is a lack of courtroom space~~ are not appropriate facilities available in the county of venue."

Mr. Kapsner seconded. A judge member stated, Steele County has not had a jury trial for eight or nine years even though it has a courtroom. The courtroom is full of boxes. Another member mentioned some counties have courtrooms, but they are not air conditioned. A county would be sensitive about a judge not holding a trial in the county because of a lack of air conditioning. Others said, a judge could wait until September before trying the case. Members said, the phrase "appropriate facilities" leaves a lot of room open for interpretation. Counties may fear a judge will not come to their facility anymore. Concern was expressed about rural courthouses declining and the Supreme Court taking the blame. The motion CARRIED by a vote of 7 to 6.

Mr. Kapsner MOVED to amend lines 6-7 as follows:

"(1) The court may change the location of a hearing or proceeding to a location outside the county of venue, if considering such factors as the parties and witnesses convenience, and judicial efficiency, the administration of justice is better served ~~for the convenience of the parties or witnesses~~."

Professor Kraft seconded. The amendment allows the court to weigh the factors, without any one factor necessarily being relied upon as the necessary factor. Others stated, the amendment would allow a judge to change the location of a hearing or trial whenever the judge wants.

Committee members again suggested combining subdivision (a) and (b). Judge Nelson MOVED to refer the proposal back to staff, so the Committee could look at a clean copy and several alternatives. Mr. Odegard seconded. The motion CARRIED. Members stated, if the subdivisions are combined, a change in location should be limited to the judicial district.

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RULE 6, N.D.R.Civ.P.; RULE 45, N.D.R.Crim.P.; RULE 26, N.D.R.App.P. - TIME COMPUTATIONS (PAGES 99-118 OF THE AGENDA MATERIAL)

Staff explained, the proposed amendments extend the period when Saturdays, Sundays, and legal holidays are excluded in a time computation from 7 to 11 days. The amendments also extends from 14 to 18 days when a motion must be served before it may be heard. If Saturdays, Sundays, and legal holidays are not counted, the motion needs to be served further in advance. Otherwise, a party may not get the time provided by the rules for responding to a motion.

Eighteen days allows for filing one day before the hearing, three days for service by mail, ten days to prepare an answer brief, and four days for excluded Saturdays, Sundays, and legal holidays. In a particular case, even more days may be needed depending on how the days fall.

Mr. Kapsner MOVED to adopt the proposed amendment to N.D.R.Civ.P. 6, N.D.R.Crim.P. 45, N.D.R.App.P. 26, and the proposed amendment to the explanatory note to Rule 3.2. Mr. Odegard seconded. Members objected to voting on all the proposals at once.

The Committee considered the proposed amendment to N.D.R.Civ.P. 6 on page 105. The proposal clarifies, a party may apply ex parte for the court to hear a motion sooner than 18 days after service of the motion. The Committee noted, N.D. Code Jud. Conduct Canon 3(B)(7) permits ex parte communications for scheduling and administrative purposes, or when expressly authorized by law. The motion to adopt Rule 6 CARRIED by a vote of 12 to 1.

The Committee considered the proposed amendment to N.D.R.Crim.P. 45. Members noted, the rule does not indicate what constitutes a legal holiday as does N.D.R.App.P. 26 and the explanatory note to Rule 6. Members also said, different clerk of court offices are open or closed on different days for holidays. The Committee concluded, practitioners are sufficiently aware of the definition of a legal holiday. The motion to adopt Rule 45 CARRIED by a vote of 12 to 1.

The Committee considered proposed N.D.R.App.P. 26. The Committee noted, N.D.R.App.P. 27 governs motions in the Supreme Court. The provision requiring a motion to be served at least 18 days before the motion may be heard is not needed in the Rules of Appellate Procedure. The motion to adopt Rule 26 CARRIED 13 to 0.

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On page 117, the Committee considered the proposed amendment to the explanatory note to Rule 3.2. The amendment flags the change in time computations under N.D.R.Civ.P. 6, N.D.R.Crim.P. 45, and N.D.R.App.P. 26. The motion to adopt the amendment CARRIED by a vote of 12 to 0 with one member abstaining.

RULE 10.1, N.D.R.Ct. - CELLULAR TELEPHONES (PAGES 119-125 OF THE AGENDA MATERIAL)

On page 121, the Committee considered a proposal to amend N.D.R.Ct. 10.1. The amendment requires cellular telephones to be turned off in the courtroom.

Committee members stated, it is premature to change the rule for a specific instrument. Cellular telephones may soon be outdated. The phrase "cellular telephones" refers to just a certain type of portable phone. Others noted, pagers also make noise. Without objection the Committee agreed to change the phrase "Cellular Telephones" on line 35 to the phrase "Wireless Communication Devices" and on line 40 to change the phrase "cellular telephone" to "wireless communication device."

Committee members stated, some portable phones do not ring. A person is alerted to an incoming call by a vibration. Those phones are not disruptive. Others said, it is still disruptive for someone to answer a phone during a proceeding. Still others said, a vibrating telephone is no more disruptive than when an attorney's secretary comes into the courtroom to give an attorney a message.

Committee members stated signs should be put up outside the courtroom saying phones are not allowed. The public will not know what is in the rule; but will see the sign.

Committee members said some devices record. A cell phone with an open line could also be used to transmit testimony outside the courtroom. A witness outside the courtroom could be listening to the testimony before taking the stand. Wireless communication devices should be prohibited from being brought into the courtroom.

Others said, the rule already prohibits using devices to record or broadcast a proceeding. Devices like cellular telephones are so common today that prohibiting them would create a storage issue.

The Committee noted, subdivision (a) is limited to jury cases. Subdivision (a) should apply to all cases. Mr. Kapsner MOVED to amend line 4 as follows:

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"~~In a jury case, when~~ When the court is about to convene, the bailiff or clerk shall, by a rap of the gavel, command attention and announce the approach of the judge."

Judge Leclerc seconded. The motion CARRIED by a vote of 12 to 1.

The Committee questioned whether the clerk of court should be required to rap the gavel. Others said the word "clerk" does not refer specifically to the clerk of district court. Any court personnel can act as the clerk and rap the gavel. Mr. Odegard moved to amend lines 4-5, line 7, and lines 9-10 by deleting the phrase "the bailiff or clerk" and substituting the phrase "appropriate court personnel." Mr. Sturdevant seconded. The motion CARRIED by a vote of 11 to 1.

On line 8, Mr. Kapsner moved to delete the word "appropriate." Otherwise, the word "appropriate" awkwardly appears twice in the same sentence. Judge Leclerc seconded. The motion CARRIED by a vote of 12 to 0.

The main motion to adopt Rule 10.1 as amended CARRIED by a vote of 12 to 1.

On page 124, Mr. Odegard MOVED to repeal N.D.R.Crim.P. 53. Mr. Sturdevant seconded. The substance of Rule 53 is covered in N.D.R.Ct 10.1. The motion CARRIED 13 to 0.

MINUTES FROM THE N.D. CONSENSUS COUNSEL ADR CULTURE GROUP

A handout was distributed containing the January 18, 2000, minutes of the N.D. Consensus Counsel's ADR Culture Group. In pertinent part, the minutes provide:

"The Joint Procedure Committee has responded to the VandeWalle request for reasons for ignoring the Schmalemberger Joint Dispute Resolution Study Committee recommendations. The Joint Procedure Committee's arguments are that maintaining a roster of mediators is a hassle and unworkable, there is no caseload need for ADR activity in North Dakota, active early judge management of cases is rejected as unnecessary and undesirable, docket currency standards compliance is sufficient to meet public expectations, it is the judge's job to adjudicate court cases rather than resolve disputes, there is no outside pressure for using ADR, ADR is not a contribution to the essential judicial services, and relief from the citizen burdens of discovery, suffering and hurt are not important judge concerns."

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Committee members stated, the minutes do not accurately reflect the deliberations of the Joint Procedure Committee. Members expressed concern, the Culture Group might be getting the wrong impression. The Committee's decision not to recommend the Joint Dispute Resolution Study Committee's proposals was not meant to be construed as a statement against ADR.

Judge Leclerc MOVED for the Chair to write the ADR Culture Group a letter clarifying the position of the Joint Procedure Committee. Mr. Kapsner seconded. The motion CARRIED unanimously.

Committee members stated, they would like to further consider whether a roster of ADR providers should be established. However, more is needed than just a rule. Administrative support is needed, so a workable and meaningful roster system can be implemented. At some point, training programs and trainers will need approval, qualifications will need to be established, and ADR providers certified if there is going to be a meaningful roster.

RULE 8.2, N.D.R.Ct. - INTERIM ORDERS IN DOMESTIC RELATIONS CASES (PAGES 126-142 OF THE AGENDA MATERIAL)

The Committee reviewed two petitions from Judge Wefald for amendment of N.D.R.Ct. 8.2. The first petition seeks an amendment prohibiting an interim order from being amended except upon stipulation of the parties or upon a showing of gravest necessity. The purpose of the amendment is to discourage motions to amend interim orders.

The second petition seeks an amendment eliminating the requirement for non-party affiants to be present at a hearing on an interim order. In his petition, Judge Wefald states, there is not time in a one-half hour hearing to cross-examine every affiant. Requiring every affiant to be present is a waste of time.

On page 138, for discussion purposes, Judge Hagerty MOVED to adopt proposed Alternative 2. Judge Simonson seconded. The requirement in Alternative 1 to have a hearing on whether to have a hearing is not the solution.

Committee members stated, the standard for amendment of an interim order should be the same as the standard for an amendment of an ex parte interim order that has become final. The standard is a material change of circumstances. See N.D.R.Ct. 8.2(a)(5)(B). Ms. Moore MOVED to amend lines 52-53 as follows:

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"(5) An interim order may not be amended except upon stipulation of the parties ~~or upon a showing of necessity~~ or in the event of a material change of circumstances."

Mr. Sturdevant seconded.

Other Committee members said, a "showing of necessity" should be the standard. With interim orders, not every issue is addressed. There might be something that was not covered in the first interim order that needs to be covered even though there is not a material change of circumstances.

Committee members said, there is a need to avoid a series of motions to amend interim orders. However, if a material change of circumstances occurs, an interim order needs to be amended. Things happen. The court has to be able to amend its orders. For instance, a party could lose their job. The motion CARRIED 7 to 3.

On page 141, Ms. Moore MOVED to restore lines 65-67 and to delete the proposed language on lines 68-72 which provides:

"An affidavit of a party may not be considered unless the party is available for cross-examination at the evidentiary hearing. An affidavit of a non-party affiant may be considered without the affiant being available for cross-examination if a timely request is not made for the affiant to be present at the hearing. To be timely, the request must be made at least 24 hours in advance of the hearing."

Mr. Kuntz seconded.

Committee members stated, subdivision (e) was adopted to get rid of the long interim hearings which used to take a day or two and were really mini trials. Instead, an affidavit system was adopted. In going to an affidavit system, the check and balance was that the affiant must be present. If someone is going to say something in an affidavit, the person should be willing to appear. It creates accountability.

Often affidavits are not received until the day before trial. There may not be time to request the affiant's presence. Interim orders are important and often ultimately reflect the outcome because of the importance of continuity. The right to cross-examination needs to be preserved. If the affiant is required to be present and to back up what is said in the affidavit, the quality of affidavits will be improved. People will be more cautious and accurate about what they state in an affidavit.

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Committee members stated, the system works now. The problem identified by Judge Wefald is an outgrowth of only allotting one-half hour for a hearing. More than one-half hour needs to be allotted for an interim hearing. Finally, the Committee noted, the current rule does not preclude the parties from stipulating an affiant does not have to be present.

Judge members stated, because interim orders must be done with little advance notice, it is often difficult to find a time slot for a longer hearing.

The Committee voted on Ms. Moore's motion. The motion CARRIED 12 to 0.

Without objection, the Committee agreed lines 67-68 should be moved to a new paragraph (4) on lines 77-78. The Committee voted on the main motion to adopt Rule 8.2 as amended. The motion CARRIED by a vote of 9 to 2 with one member abstaining.

The Committee instructed staff to report the Committee's action to the Supreme Court in the annual rules package.

ARTICLE XII, N.D.R.Ct. - COLLECTIONS (PAGES 274-304 OF THE AGENDA MATERIAL)

The Committee reviewed and discussed Judge Wefald's petition to the Supreme Court for adoption of a set of rules governing collections.

Committee members stated, Mid-Dakota Clinic v. Kolsrud, 1999 ND 244, 603 N.W.2d 475, already addresses the substance of Judge Wefald's proposals.

Committee members stated, it is inappropriate to single out collection attorneys. N.D.R.Ct. 3.1(e) already governs the form of documents. If a document is not legible, the court can order the document to be reformed. If the order is not obeyed, the court may order the document to be regarded as stricken and its service to be of no effect. A special rule is not needed for collection actions.

The Committee discussed whether staff should work on putting the proposals in better form for the next meeting. The Committee concluded, additional work should not be done on the proposals. Instead, staff should draft a summary of reasons why the proposals should not be adopted for the Committee's consideration before a recommendation is submitted to the Supreme Court.

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The meeting adjourned at approximately 12:00 noon.

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Gerhard Raedeke