MINUTES OF MEETING
Joint Procedure Committee
January 29-30, 2004
TABLE OF CONTENTS
Rule 41, N.D. Sup. Ct. Admin. R. - Access to Judicial Records; Rule 3.1, N.D.R.Ct.-
Pleadings; Appendix G - N.D.R.Ct 3
Rule 62, N.D.R.Civ.P. - Stay of Proceedings to Enforce a Judgment; Rule 8, N.D.R.App.P. - Stay or Injunction Pending Appeal 8
Rule 8.10, N.D.R.Ct. - Extraordinary Writs 13
Rule 34, N.D. Sup. Ct. Admin. R. - Rule Regarding Domestic Violence Advocates 13
Rule 46, N.D.R.Crim.P. - Release from Custody 15
Rule 51, N.D.R.Civ.P. - Instructions to Jury 16
Rule 46, N.D.R.Crim.P. - Release from Custody 18
Rule 53, N.D.R.Civ.P. - Masters 18
Rule 608, N.D.R.Ev. - Evidence of Character and Conduct of Witness 21
Rule 4, N.D.R.Crim.P. - Arrest Warrant or Summons Upon Complaint 21
Rule 5, N.D.R.Crim.P. - Initial Appearance Before the Magistrate 22
Rule 5.1, N.D.R.Crim.P. - Preliminary Examination 23
Rule 7, N.D.R.Crim.P. - The Indictment and the Information 24
Rule 8, N.D.R.Crim.P. - Joinder of Offenses and of Defendants 25
Rule 9, N.D.R.Crim.P. - Warrant or Summons Upon Indictment or Information 26
CALL TO ORDER
The meeting was called to order at 1:00 p.m., on January 29, 2004, by Justice Dale V. Sandstrom, Chair.
Justice Dale V. Sandstrom
Honorable Bruce E. Bohlman
Honorable M. Richard Geiger
Honorable Gail Hagerty
Honorable Lawrence A. Leclerc
Honorable David W. Nelon
Honorable Allan L. Schmalenberger
Honorable Thomas J. Schneider
Honorable Mikal Simonson
Professor Linda Bata
Mr. John C. Kapsner
Mr. Daniel S. Kuntz
Mr. Ronald H. McLean
Ms. Sherry Mills Moore
Mr. Steven W. Plambeck
Ms. Cathy Howe Schmitz
Mr. Michael G. Sturdevant
Honorable Donovan Foughty
Mr. Michael R. Hoffman
Mr. Galen J. Mack
The Chair set out the schedule for the meeting and confirmed that the Committee's next meeting will be in Fargo on April 29-30, 2004.
APPROVAL OF MINUTES
Judge Leclerc MOVED to approve the minutes. Ms. Schmitz seconded. Judge Geiger pointed out an error on page 18 of the minutes. Without objection, a correction was made. The motion to approve the minutes CARRIED unanimously.
RULE 41, N.D. Sup. Ct. Admin. R. - ACCESS TO JUDICIAL RECORDS; RULE 3.1 - N.D.R.Ct., PLEADINGS; APPENDIX G - N.D.R.Ct. (PAGES 32-43 OF THE AGENDA MATERIAL)
Staff reviewed actions taken by the Committee on court system privacy measures at its April and September 2003 meetings and reviewed proposed amendments to the Administrative Rules and Rules of Court that would implement additional privacy measures. Staff explained that the proposed amendments were back for continued consideration because they failed to pass by a two-thirds majority at the September 2003 meeting. Staff also distributed comments on the proposal from Paulette Oberst of Child Support Enforcement along with an alternative draft of Rule 3.1 reflecting Ms. Oberst's concerns.
The Chair explained that approval of the proposed amendments remained the pending question.
A member asked about the mechanics of the privacy protections in the proposed amendments. For example, in the case of a qualified domestic relations order, personal information like a social security number would need to be used in the order itself to satisfy administrators dividing up a pension. The member asked whether an original QDRO with the social security number and a redacted QDRO copy would need to be filed in such a case. After discussion with the Committee, the member concluded that in any case where a social security number was required in a given document, it would be necessary to submit both an original and a redacted copy, and that the proposed rule would allow a party to get an unredacted copy back once it was signed.
A member asked about the alternative draft of Rule 3.1. Staff explained that the proposed language would require an original and a redacted copy to be filed in all cases where the law requires a given pleading to contain personal information such as a social security number.
A member observed that the proposals had the potential to make a mess of case files, particularly in divorce cases. The member asked whether there was a real need for the proposed provision giving parties the option of filing of an original plus redacted copy, rather than a single separate form containing the personal information.
A member answered that social security numbers, by statute, are required on the pleadings in a number of different types of cases, so merely submitting the separate form would not be enough. Other members also noted that a wide variety of documents, such as tax forms and canceled checks, bear social security numbers. A member said that, under these circumstances, it seemed likely that many lawyers would end up violating the rule on
a regular basis. The member said that the idea behind the rule was good, but that mechanically it did not seem likely to work.
A member said that the real problem was not keeping information out of documents filed with the court but keeping personal information in filed documents from being released. The member said that it seemed a waste of effort, for example, to file duplicate documents of everything in a divorce case on the off chance that some non-party might try to look at them later. The member suggested that it would be more efficient for the clerks to redact personal information on a case-by-case basis when third parties seek to look at court files.
The Chair pointed out that federal courts make bankruptcy papers available online, but that social security numbers are not contained on any of the papers. A member said that in bankruptcy cases, social security numbers are filed on a separate, non-releasable form. The member said that use of a separate form, rather than redacted copies, seemed the better option for protecting personal information.
A member said that QDROs without social security numbers are not acceptable to retirement plan administrators, and that reference to a separate form in a court file would not be an adequate substitute for having the number on the QDRO. A member suggested that excluding QDROs and similar documents from release to the public would be a solution.
A member said that making divorce files restricted files would solve many of the problems raised by the Committee since most of the problem documents being discussed are family law documents. A member suggested another way around the QDRO problem would be for the court to redact the personal information from the copy filed, sending the signed and unredacted document to the parties.
A member said that merely giving parties the option of filing an original and redacted copy was not enough--some sort of steps would be necessary to assure that original copy could never be released to third parties. Suggestions were that the original be stamped or marked with an indication that it contained confidential information.
Mr. Kuntz MOVED to amend language of proposed amendments to Rule 3.1 to require the marking of confidential original documents. Mr. McLean seconded.
A member commented that in administrative cases, confidential information was submitted on colored paper. The member said using such a procedure is very effective in alerting anyone who uses a file to the presence of confidential information.
Mr. Kuntz's motion CARRIED 16-1.
A member said that making files containing personal information restricted files could be the best way to stop release of confidential personal information. A member said that such a move would cause records access advocates and the media to assume to that the court system was trying to hide things and to go to the legislature seeking relief. A member said that, under such a rule, anyone who wanted to turn their case into a confidential case could just file some personal information and this would get the file sealed.
A member observed that giving the option of filing an original with a redacted copy was simply not a good idea. The member said it would be simpler if filing personal information on a separate form was the only option.
A member asked if any clerks of court had commented on the proposal. Staff explained that the Court Services Committee had addressed the topic but not taken any action on it.
A member commented that the proposed changes are not perfect, but that they provide some protection for personal information filed with the courts. The member said that any steps taken to protect personal information in court records would be burdensome in some way to parties and court workers. The member agreed, however, that giving people alternative ways of filing documents containing personal information would be even more burdensome.
A member said if a filing alternative was not given, the parties who are concerned about the need to include confidential information in pleadings will not be served. The member said the whole child support system as operated in North Dakota relies on social security numbers being included in the pleadings.
A member suggested that a different approach would be to make documents which are required to include social security numbers--such as QDROs or child support orders-- nonreleasable confidential documents.
Judge Leclerc MOVED to include additional language drafted by staff in Rule 3.1 regarding filing redacted copies when the law requires filing of documents containing social security numbers. Judge Hagerty seconded.
A member asked whether the proposed language would apply to every judgment. The member said that adopting the language would be inconsistent with the Committee's apparent desire to supersede statutory language that requires social security numbers to be
included in certain pleadings.
A member suggested that the language was redundant because the previous proposed language already allowed redacted copies to be filed.
A member said that if the alternative allowing redacted copies was removed, the Committee and the courts could take the position that the statutes prescribing social security numbers on certain pleadings was superseded.
Judge Leclerc's motion was DEFEATED 4-13.
Judge Simonson MOVED to delete the language allowing the redacted copy alternative from the proposed amendments to Rule 3.1. Judge Leclerc seconded.
A member said the idea was good except for documents in which social security numbers were necessary as a practical matter, such as QDROs and child support documents. The member said that adoption of the amendment would create a dilemma because attorneys would be forced to choose between following statutes (and normal practice) or following the rule.
A member asked how the rule would apply to attachments to filings, like tax returns. The member said that social security numbers are part of such attachments. The member asked whether simply redacting the number from such documents before filing would satisfy the requirements of the rule. A member said that, when attachments containing social security numbers were submitted, the social security number usually was not at issue. Therefore, it could be redacted without altering the evidentiary value of the document.
A member said that the main advantage of the proposed amendment would be to help the clerks by not requiring them to deal with court files full of confidential originals and redacted copies. A member commented that there would still be lots of social security numbers to redact from medical records, tax returns, etc., depending on the nature of the case.
Judge Simonson's motion CARRIED 11-6.
The Chair asked whether the Committee was in agreement regarding having the rule supersede those state statutes that required social security numbers to be included on pleadings. Staff reviewed its April 2003 memo which contained a list of statutes requiring inclusion of social security numbers on pleadings.
A member commented that some of the items listed by staff were items that would be under the control of recorders rather than clerks of court. A member commented that items like lien statements, however, are frequently attached to pleadings in civil matters. A member replied that, if the Committee decided that the rule should supersede any statutes, it would only supersede statutes that required a social security number to be included on a pleading that was required to be filed with a clerk of court.
A member said that the proposed amendments simply did not seem workable. The member suggested that the proposed amendments perhaps should be reviewed by someone who understands all the mechanisms of the clerks office. The member said the proposed rule amendments at present might be in a form that cannot be followed consistently.
A member suggested that language allowing personal information to be included on pleadings when required by statute, but providing for the redaction of the information from the filed documents once the matter is concluded, might solve some problems.
The Chair observed that it seemed that more research needed to be done before the Committee could take final action on the measure and that the members should discuss what areas needed to be researched before the next meeting.
A member suggested that judges be asked what other types of documents, other than QDROs or child support orders, needed to have social security numbers included. The member suggested that such documents could simply be made confidential by rule, and could therefore continue to contain the social security numbers.
A member suggested that the court administrator's office distribute the proposed rules to the clerks to get feedback on possible problems created by the proposed requirements.
A member said that staff should look at what other approaches are being used to protect social security numbers and research how the protections in the proposed amendments could be harmonized with existing statutes.
Ms. Schmitz MOVED to postpone further consideration of the proposal until the April 2004 meeting. Judge Schneider seconded. Motion CARRIED unanimously.
RULE 62, N.D.R.Civ.P. - STAY OF PROCEEDINGS TO ENFORCE A JUDGMENT; RULE 8, N.D.R.App.P. - STAY OR INJUNCTION PENDING APPEAL (PAGES 50-78 OF THE AGENDA MATERIAL)
The Chair welcomed John Olson and Keith Teel, attorneys representing Philip Morris USA, who appeared to explain the rationale behind proposed changes to N.D.R.Civ.P. 62 and N.D.R.App.P. 8.
Mr. Teel spoke about the proposed changes and answered questions from members of the Committee. Mr. Teel said that bond limits similar to the ones in the proposal have been adopted in 26 states. Mr. Teel said that his clients have been involved in a lot of litigation, including cases where very high damages awards have been given. Mr. Teel said that his clients became concerned about appellate bond limits after committing to the tobacco master settlement agreement in 1999.
Mr. Teel said that his clients continued to face litigation even after committing large quantities of money to the master settlement. Mr. Teel cited a Florida class action that resulted in a $145 billion judgment against his client. Mr. Teel said the appellate bond in that case, under previous Florida law, would have been $181 billion. Mr. Teel said the risk of so high a bond prompted his clients to go to the legislature and request an adjustment of the appeal bond law.
Florida approved a $100 million bond cap and Mr. Teel's clients, supported by others in industry and business, decided to go on to other states to seek additional appellate bond caps. Mr. Teel said it was important to fight for caps nationwide because one excessive judgment in a state without an appellate bond cap could force his clients into bankruptcy, which could upset the master settlement agreement and create more liability for his clients.
Mr. Teel said he had been successfully advocating appeal bonds around the country because most people seem to agree that it is unfair to have appeal bonds set so high that a company would have to bankrupt in order to continue on in the appeal process. Mr. Teel said they were advocating a $25 million bond cap as an arbitrary starting point, but that states had adopted appellate bond caps at a variety of levels.
A member observed that most of the states adopting appellate bond caps had done so by statute rather than rule. The member asked why Mr. Teel was asking for a rule amendment rather than going to the legislature. Mr. Teel said that it seemed that, under North Dakota law, the Supreme Court was the appropriate body to impose an appellate bond cap because it seemed a procedural change.
A member observed that neither Minnesota nor Montana had approved bond caps and asked if Mr. Teel could explain this. Mr. Teel said the Minnesota legislature was considering a bond cap of $100 million. Mr. Teel said that they had not yet gone to Montana to seek a bond cap.
A member asked whether Mr. Teel had contacted any industries in North Dakota seeking support. Mr. Teel said that the Greater North Dakota Association had been contacted and offered support for the measure. Mr. Teel also observed that most of the businesses who supported the measures (and most of the states that had adopted bond caps) had not been faced by excessive verdicts or bond amounts, but were simply worried about future possibilities of such problems.
A member asked what approach the federal courts take to appellate bond caps. Mr. Teel said that the bond amount was discretionary in the federal courts.
A member observed that while having to pay a multi-billion dollar bond would obviously create a financial burden for a company like Phillip Morris, a typical North Dakota company, would face a similar burden having to pay a much lower bond, even "only" $500,000. The member indicated that the $25 million bond cap would not help the North Dakota company in such a case. Mr. Teel observed that some states, such as Texas, have handled this problem by providing alternate caps based on the amount of the judgment or the defendant's net worth, but that most states have chosen the simpler mechanism of having a fixed cap.
A member said that North Dakota courts have the authority to require an appellate bond in any amount the court deems adequate, including an amount less than the judgment. Mr. Teel responded that, in a case that has gone on for weeks or months and results in a large verdict for the plaintiff, the court is unlikely to be sympathetic to the defendants, especially if the defendants make a motion for a greatly reduced bond. Mr. Teel also said that most states do not have a discretionary rule for bond amounts--most states require at least the amount of the judgment for a bond.
A member asked whether there was any correlation between states having both appellate bond caps and punitive damages caps. Mr. Teel responded that some states with caps do not even allow punitive damages, but there did not seem to be a correlation between punitive caps and bond caps.
The Chair thanked Mr. Olson and Mr. Teel for appearing.
Staff reviewed the proposed changes and explained the status of North Dakota law
in regard to appellate bonds. Staff also distributed comments in support of the proposal from the Greater North Dakota Association.
Judge Leclerc MOVED to approve the proposed changes. Judge Hagerty seconded.
A member commented that the $25 million bond limit might be too low. The member said that verdicts have approached that amount in single party personal injury cases in North Dakota. The member said that the cap level should be set at a higher level.
Mr. McLean MOVED to amend the proposal to raise the appellate bond limit to $50 million in both rules. Mr. Sturdevant seconded.
A member suggested that the Committee look at ways to make the bond cap reflect the financial health of the defendant. The member said that even a $10 million bond would be very difficult for many North Dakota companies to pay. The member said that, even though the trial judge now has discretion to limit the bond amount, in a case where the jury is upset enough at the defendant to award a multi-million dollar verdict, the judge is likely to be upset too. The member said that some consideration needed to be given to preserving the defendant's right to appeal and preserving the defendant's assets to pay a possible final judgment. The member said the $25-50 million might be an appropriate cap for a multi-national corporation, but that having to pay a $25 million bond could be catastrophic for a smaller company.
The member said that working out a variable bond cap would be difficult. The member said the Committee might take guidance from the punitive damages cap. The punitives cap allows punitives of twice the compensatory damages or $250,000, whichever is greater. The member said a flexible bond cap similar to the punitives cap would provide added protection and cover most situations.
A member said that, while having a variable cap would make economic logic, it also might cause further costly litigation about a defendant's net worth. The member said that setting an upper limit on bonds and then allowing the court to use its discretion in cases where the bond amount could be a hardship was appropriate.
A member said having a $50 million bond cap would help 5-6 companies in the entire state. The member said bonds were very expensive and created a cost for all parties, even plaintiffs, who face being taxed for costs if a matter is remanded. The member said a rule with more flexibility than the high cap proposed would be helpful, but that a rule with so much flexibility as to require a second trial on the bond amount would not be helpful.
A member said that flexibility existed in the system now. A member said judges consider what the consequences are to both sides when they set the bond amount. The member said that parties also have the opportunity to go to the Supreme Court if they are not satisfied with the bond amount set by the trial court.
A member asked whether there were any North Dakota cases where parties were not able to appeal because a bond was set too high. A member responded that this did not seem to be much of a problem, and that in cases when it was a problem, the party can request a different amount to be set. The member said that as long as a party can show that assets are not being dissipated, adjustments are generally made to the bond amount.
A member said that the legal process is not concluded until the parties get a final order, whether it is from the trial court or an appellate court. The member asked why it was necessary to require a bond from a party that wanted to appeal, given that the legal process in such a case would not be over until the appeal was done.
A member said that bonds were necessary because no one would want to do another trial after the appeal in order to find transferred or hidden assets. Another member added that once a judgment is entered, the prevailing party has a right to execute on the judgment. The bond is the price of a stay of execution, and protects the party that has the right to execute.
A member said if the Committee was willing to impose a judgment cap that would help mostly bigger companies, it should also try to develop some protection for smaller companies. The member said the language of the proposal could be amended to make the cap "$50 million or the amount of the judgment, whichever is less." The member said the Committee should do something to protect "the little guy."
Mr. McLean's motion CARRIED 10-7.
A member said that while no one wants to litigate a bond amount, that there should be some sort of legal mechanism that would protect the judgment debtor while allowing a defendant to continue to operate without seeking protection in bankruptcy court. The member said the rule at least should include some sort of guidance for courts on setting bond amounts.
A member responded that courts have discretion in setting bond amounts and parties the right to challenge district court bond decisions under the current rules. The member said that judges are not punitive in setting bond amounts and that if "guidance" was provided to judges by rule this would eliminate discretion and be transformed into a de facto standard.
A member asked whether the court benchbook provided any guidance on bond amounts. The answer was no. A member commented that most judges may not know all the factors they can consider in setting a bond amount and that setting out non-exclusive factors to consider could give courts a better understanding of how to set a reasonable bond amount.
A member pointed out that in a large number of the states that had adopted caps did so in a way designed to protect the master settlement agreement with the tobacco companies. The member said that it appeared that only nine states have generally applicable appellate bond caps, and that some of these caps applied only to punitive damages cases. The member said that the acceptance of appellate bond caps did not seem as widespread as Mr. Teel suggested.
A member pointed out that, because North Dakota gives courts discretion in setting appellate bonds, this makes North Dakota different than the other states that have adopted caps.
A member asked whether the bond cap only applied to money judgments.
A member said that the issue essentially was one of due process--if the bond was so high a party could not appeal, this would be a denial of due process. A member responded that the appeal could always go on, the consequence of failing to post a bond would be that the party could not stay execution on the lower court judgment.
A member suggested that the language of the proposal needed to be cleaned up, especially the use of "but" at the beginning of the second proposed sentence in the two rules.
Ms. Schmitz MOVED to amend the proposal to remove the word "but" from the proposed amendments. Mr. Sturdevant seconded. Motion CARRIED unanimously.
Ms. Schmitz MOVED to remove language "whose bond has been limited" from the proposed amendments. Judge Nelson seconded.
A member said that, if the language was changed, the rules would then apply that no bond greater than the amount of the judgment could be set. The member said there were instances where a bond greater than the judgment amount may be sought, such as when post judgment interest and attorney fees are issues.
The motion was DEFEATED 1-16.
A member noted that, under the proposed amendments, the bond limit would be a blanket limit applying to all appellants. The member said that, because some cases involve a large number of appellants, the bond limit is possibly over broad.
A member asked what the largest money judgment in North Dakota state court had ever been. Committee members said the largest verdicts in memory were in the $10-20 million range. Members said that some claims were pending involving significantly greater amounts of money.
The main motion to approve the proposed changes and send the rule to the Supreme Court CARRIED 10-7. This being less than a two-thirds margin, the proposed amendments will be considered again at the April 2004 meeting.
RULE 8.10, N.D.R.Ct. - EXTRAORDINARY WRITS (PAGES 44-49 OF THE AGENDA MATERIAL)
Staff reviewed actions taken by the Committee on Rule 8.10 at its September 2003 meeting and explained that the rule was back for additional consideration because a final vote on the rule had been postponed at the last meeting due to the large number of amendments to the rule that had been proposed.
Judge Leclerc MOVED to approve the rule as amended and to send the rule to the Supreme Court. Ms. Moore seconded. Motion CARRIED 16-0.
RULE 34, N.D. Sup. Ct. Admin. R. - RULE REGARDING DOMESTIC VIOLENCE ADVOCATES (PAGES 79-87 OF THE AGENDA MATERIAL)
Staff explained that Judge Robert Wefald of the South Central Judicial District had proposed amendments to Rule 34 that would allow domestic violence advocates to assist the court by filling out forms and preparing draft orders. Staff explained that the North Dakota Council for Abused Women's Services objected to the proposed changes.
Mr. Sturdevant MOVED to approve the proposed changes. Judge Nelson seconded.
A member asked why the Committee should approve a change that would create additional duties for domestic violence advocates when the advocates themselves apparently object to the change. Another member explained that the domestic violence advocates were promoting the use of uniform protective order forms and that it was appropriate to seek their
assistance in filling out the forms and in drafting related orders.
A member said that some advocates have already been filling out the forms for the court, but that the practice was not consistent across the state. Other members of the Committee explained that in some places, clerk staff or court reporters fill out the forms. A member commented that the proposal before the Committee was developed because some judges want to eliminate inconsistency by having the advocates handle filling out the forms.
A member commented that the practice is not consistent because it is up to the judge in each case to decide who is going to fill out the forms and submit the form order. The member said that generally the advocates are already filling out the forms. The member said this was consistent with the advocates writing up petitions and affidavits in protection order matters, which they already do. The member said that making it clear by rule that advocates could submit orders would be an appropriate measure.
A member said that allowing the advocates to submit the final order would be counter to the spirit of the domestic violence advocate program. The member admitted that advocates fill out many forms at present, but said that this practice at times distances the judge from the proceeding--the judge ends up not being involved in preparing key case documents.
A member commented that asserting jurisdiction over a group that was not licensed or regulated by the court was a questionable move. A member replied that the courts had already allowed the advocates to step into the room and do many things. The member, asked, though, whether advocates, if allowed to prepare orders, would also be required to serve them. The consensus was that courts should be able to require this.
A member commented that the proposal seemed to be a modest measure, with the proposed authorization for advocates to prepare draft orders being the most "radical" element. The member said that making such a change was not very radical since advocates were already preparing the forms the orders were based on and, in some cases, also preparing draft orders.
A member said it was a big step because some advocates and advocate leaders were opposed to having advocates prepare orders. On the other hand, the member said the advocates were giving a mixed message because some of them were already preparing draft orders. A member said that the problem was that, while a party can present a petition, it is the court that issues the order. The issue of advocates "practicing law," therefore, becomes a problem once they start working for the court rather than the party.
The main motion to approve the changes and send the rule on to the Supreme Court was DEFEATED 5-11.
RULE 46, N.D.R.Crim.P. - RELEASE FROM CUSTODY (PAGES 88-111 OF THE AGENDA MATERIAL)
Staff explained that some problems in the language of N.D.R.Crim.P. 46(b) had been noticed when a defendant in the Northwest Judicial District had attempted to seek relief under the rule. Staff presented three alternative proposals to eliminate the language problems found in N.D.R.Crim.P. 46(b).
Judge Hagerty MOVED to approve the third alternative presented by staff, deletion of N.D.R.Crim.P. 46(b). Judge Simonson seconded. The Chair said the Committee would need to consider whether the rule should be renumbered if the motion to delete 46(b) carried.
A member said that Staff should check if there are cross-references to the existing subdivisions of the rule as currently numbered before the Committee decides whether on renumbering.
A member said that deletion of 46(b) would not materially affect defendants' rights. A defendant who has not been released after 48 hours has the right to have a detention review. The member said removing 46(b) would be appropriate because the section does not make sense.
A member asked whether, if 46(b) was deleted, a person seeking detention review would have to go back to the same magistrate who imposed the detention to obtain the review. A member responded that this had never been the case. Another member suggested that the language of the rule be changed so that it would be clear that a defendant did not have to seek review of detention from the same magistrate who imposed detention.
Mr. Kapsner MOVED to replace "the" with "a" in line 60 of the rule. Mr. Sturdevant seconded.
A member commented that the suggested change would make it clear in cases where jurisdiction transferred from one magistrate to another that the second magistrate had authority to make a new decision regarding detention.
A member commented that, in practice, a detainee was allowed to make as many motions for release as desired, even though a hearing might not be held in response to every
Mr. Kapsner's motion CARRIED unanimously.
The main motion to approve the changes to the rule and to send it to the Supreme Court CARRIED unanimously.
Staff was instructed to research whether renumbering of the rule's subdivisions was appropriate and to draft language explaining the approved changes for the rule's explanatory note.
RULE 51, N.D.R.Civ.P. - INSTRUCTIONS TO JURY (PAGES 112-138 OF THE AGENDA MATERIAL)
Staff explained that Fed.R.Civ.P. 51 had been overhauled and that the proposed changes to N.D.R.Civ.P. 51 were an attempt to apply the federal overhaul to North Dakota's rule.
Judge Geiger MOVED to approve the proposed changes to the rule. Ms. Schmitz seconded.
A member said that some of the proposed language seemed to be contrary to current practice, under which it is not generally required that a party make a formal objection to a trial court's decision not to give a submitted instruction--an objection in such a case is deemed preserved. The member said that the time constraints involved in a trial needs to be recognized in the rule and the current practice on deeming objections preserved needs to be retained.
A member responded that the proposed language of the amended rule seemed to require the court to give parties an opportunity to object to the granting and denial of instruction requests. Another member said that the proposed language of the amended rule seemed to better reflect actual practice than the existing language of the rule. The member said that the existing rule was vague and much explanation from the Supreme Court had been needed over time to explain it. The member said that rule seemed judge and lawyer friendly.
A member observed that some of the rule's language seemed to require too much action from parties in order to preserve objections. The member said that the simple rule should be: if a party asks for an instruction, and it is not given, the party should be able to
appeal the decision not to give the instruction.
A member said that the proposed rule seemed to preclude the trial court from giving an automatic or deemed objection. The member said that, because of this requirement, parties would be required to prepare and ask for instructions well ahead of the time of trial.
A member said that section of the rule on preserving objections did need to be looked at.
Mr. Kapsner MOVED to delete proposed language on lines 76-78 of the rule requiring a formal objection when a requested objection is not given. Mr. McLean seconded.
A member commented that the requirement for a formal objection was a trap for the unwary. Another member said that courts in practice do not require formal objections on declining to give instructions.
A member asked whether, if an instruction is changed during pre-closing negotiation, would the party who requested the original instruction have an issue on appeal based on the instruction not being given as requested. A member responded that this situation seemed to be covered by the Supreme Court principle that no party is entitled to have an instruction given exactly as requested if the substance of the given instruction is the same.
A member said that the proposed amendment seemed to give a party the right to keep quiet about any changes to instructions and still preserve an appellate issue. A member responded that this was true, but if the substance of the instruction was given, the party was unlikely to prevail on such an argument.
Mr. Kapsner's motion CARRIED 13-3.
A member said that the use of the term "plain error" in subdivision (d) of the proposed amendments to the rule seemed inappropriate. The member said plain error was an appellate issue. A member responded that a trial judge is allowed to set aside an incorrect trial decision in post trial proceedings based on plain error.
A member said that the Rules of Evidence cover plain error and that was not necessary for a Rule of Civil Procedure to also cover the topic. A member responded that the inclusion of the plain error exception reflected actual practice--courts do reverse themselves based on plain error post trial.
The main motion to approve the changes to the rule and to send it to the Supreme Court CARRIED 16-1.
The meeting recessed at approximately 4:00 p.m., January 29, 2004.
January 30, 2004 - Friday
The meeting was called to order at approximately 9:00 a.m., by Justice Dale V. Sandstrom, Chair.
RULE 46, N.D.R.Crim.P. - RELEASE FROM CUSTODY (PAGES 88-111 OF THE AGENDA MATERIAL)
Staff provided the Committee with proposed additions to the N.D.R.Civ.P. 46 explanatory note that had been drafted to reflect the changes the Committee approved in the rule itself. Without objection, the Committee approved the proposed changes to the explanatory note.
RULE 53, N.D.R.Civ.P. - MASTERS (PAGES 139-171 OF THE AGENDA MATERIAL)
Staff explained that Fed.R.Civ.P. 53 had been overhauled and that the proposed changes to N.D.R.Civ.P. 53 were an attempt to apply the federal overhaul to the North Dakota rule. Staff also explained that, if the Committee were to approve the proposed changes, it might need to consider whether to recommend repeal of N.D.R.Ct. 6.5, as the proposed changes to N.D.R.Civ.P. 53 would effectively supersede it.
Ms. Schmitz MOVED to approve the proposed changes. Judge Geiger seconded.
A member said that dealing with a master was sometimes a struggle. The member said ex parte communications between the master and the parties was often a problem. The member said that the present rule seemed to work well enough, although it was somewhat complicated. Committee members cited divorce cases, business disputes and real estate matters as examples of cases where masters were appointed.
A member said that one possible problem with the proposed rule was the mechanism used to select masters. The member said that parties usually wanted the court to take responsibility for choosing the master. The member said that the mechanism in the proposed
rule was more formal than the system now used.
A member said it was important to make it clear that masters could not make decisions on jurisdictional issues or make a decision on any issue the court had not designated. A member said that the most important document in a case where a master is involved is the order appointing the master and the more detailed this document was, the better.
A member observed that the standard of review applied to master decisions by trial courts would change under the proposed rule from clearly erroneous to de novo. Staff said that referee rule as previously amended by the Committee had changed the standard of review for referee decisions from clearly erroneous to de novo.
A member said there seemed to be a problem with the payment provisions in the rule.
Mr. Kuntz MOVED to change the word "must" to "may" on line 186. Mr. Sturdevant seconded.
A member asked whether the "fund" within the court's control mentioned by the proposed language could include the parties' money as opposed to being limited to a separate fund. A member said that it could mean the profits of a business being operated by a master as opposed to meaning money in the parties' pockets.
Mr. Kuntz's motion CARRIED 13-3.
Mr. Kapsner MOVED to change language on line 125 to add the words "with specificity." Mr. Kuntz seconded.
A member suggested that the proposed change be made to the introductory clause at lines 123-124. A member responded that the specificity requirement should not apply to paragraphs B, C, and D.
A member said there may be problems with having a specificity requirement. The member said that, under such a requirement, parties could challenge the master at every stage to stop the master from performing duties allegedly not within the specific duties allowed. The member said that the master should have broad authority.
Mr. Kapsner's motion was DEFEATED on a voice vote.
A member asked where the "petit juror" language on line 113 of the proposed rule
came from. Staff explained it came from a provision in the previous rule that was not part of the federal rule. Several committee members commented that it was an arcane term given that North Dakota does not generally use grand juries.
Ms. Schmitz MOVED to delete the word "petit" in line 113. Judge Schneider seconded. The motion CARRIED unanimously.
A member said that it was not clear under the rule when parties were allowed to object to a person's appointment as a master. The member said there should be a time limit on objecting. A member responded that a ten day limit would be appropriate.
A member asked whether the notice and hearing requirement in paragraph (b)(1) effectively acts as a time limit. The consensus was that it was.
The main motion to approve the proposed changes and send the rule to the Supreme Court CARRIED unanimously.
The Chair asked what the Committee wanted to do about Rule 6.5 now that it had approved the changes to Rule 53. Staff explained that Rule 6.5 appeared in the Rules of Court when they were first adopted and that it apparently had not been amended or otherwise discussed by the Supreme Court since that time.
A member said that the continued presence of Rule 6.5 seemed harmless. The member said the fee provision in Rule 6.5 also could be useful.
A member said that Rule 6.5 should be repealed. The member said that everything covered by Rule 6.5 was taken care of in Rule 53.
Judge Leclerc MOVED to recommend repeal of Rule 6.5 to the Supreme Court. Mr. Kuntz seconded.
A member said that Rule 53 did not allow for interlocutory appeals on evidentiary issues while Rule 6.5 did. The member suggested that the Committee consider whether there was anything of value in Rule 6.5 and, if so, move such provisions to the main rule.
A member said that having interlocutory appeals of evidentiary matters would not be good. The member said that Rule 6.5 also seemed to give extra power to masters, such as the power to dismiss a matter, that should belong to the court.
Judge Leclerc's motion to recommend repeal of Rule 6.5 CARRIED unanimously.
RULE 608, N.D.R.Ev. - EVIDENCE OF CHARACTER AND CONDUCT OF WITNESS (PAGES 172-180 OF THE AGENDA MATERIAL)
Staff explained that some minor changes had been made to Fed.R.Ev. 608 in order to clarify the types of evidence subject to exclusion under the rule. Staff explained that the proposed changes to N.D.R.Ev. 608 mirrored the federal changes.
Mr. McLean MOVED to approve the proposed changes. Ms. Moore seconded.
A member said that Rule 608 was one of the hardest rules to figure out and it would be unfortunate if North Dakota did not follow the federal amendments since studying federal cases was one of only tools available to help understand what Rule 608 means. The member said that North Dakota cases also seem to be consistent with the proposed change.
Mr. Kapsner MOVED to change the proposed language on lines 13-14 and revert to the current language. Mr. Sturdevant seconded. Motion CARRIED unanimously.
The main motion to approve the proposed changes and send the rule on to the Supreme Court CARRIED unanimously.
RULE 4, N.D.R.Crim.P. - ARREST WARRANT OR SUMMONS UPON COMPLAINT (PAGES 181-205 OF THE AGENDA MATERIAL)
Staff explained that changes to N.D.R.Crim.P. 4 were proposed as part of the ongoing criminal rules review and reflected changes made to Fed.R.Crim.P. 4 effective December 2002.
Ms. Schmitz MOVED to approve the proposed changes. Judge Geiger seconded.
A member observed that the proposed amendment to the first sentence of the rule did not appear to make any sense. The consensus was that too many words were struck out in the working draft. Without objection, the excess deleted language was restored.
A member pointed out that the word "his" had been retained in the rule even though the Committee was working to remove "he" references.
Judge Schneider MOVED to change language on line 53 to remove the word "his." Judge Hagerty seconded. Motion CARRIED unanimously.
Professor Bata MOVED to substitute the word "and" with the word "or" on line 5. Ms. Schmitz seconded.
A member said that the language of the North Dakota rule did not follow the federal amendments. A member said that the change would reflect actual practice. A member replied that usually one would have to look at both a complaint and an affidavit to determine probable clause.
Another member responded that a verified complaint would not need to be supported by an affidavit. A member said if the "and" was retained the rule might be read to require an affidavit in all cases. A member said federal courts do not issue warrants without affidavits, whereas North Dakotas courts do.
Professor Bata's motion CARRIED 9-7.
The main motion to approve the proposed changes and include the rule in the Criminal Rules Package CARRIED unanimously.
By unanimous consent, staff was instructed to correct a typo in the rule on line 88 and review and correct the rule if further use of the word "his" was found.
RULE 5, N.D.R.Crim.P., INITIAL APPEARANCE BEFORE THE MAGISTRATE (PAGES 206-224 OF THE AGENDA MATERIAL)
Staff explained that the changes to N.D.R.Crim.P. 5 were proposed as part of the ongoing criminal rules review and reflected changes made to Fed.R.Crim.P. 5 effective December 2002.
Judge Simonson MOVED to approve the proposed changes. Ms. Schmitz seconded.
A member said that there was an ongoing debate on how quickly a defendant must be brought into court for a determination of probable cause after an arrest without a warrant. The member asked whether this should be clarified in the rule. A member responded that in the South Central Judicial District, the view was that probable cause needed to be determined within 48 hours.
A member said that prosecutors in rural counties complain that they cannot act within 48 hours on probable cause and, therefore, they do not. A member said that probable cause hearings can be done over the telephone if necessary. Several members said that the
decision when to hold a probable cause hearing is one that is left to the prosecutors. A member said judges are always available whenever a probable cause hearing is necessary and that any delay is the responsibility of prosecutors.
A member said that the Northeast Judicial District requires officers to fill out arrest affidavit forms if a defendant is detained for more than 48 hours without a probable cause hearing so that a judge can determine whether there is probable cause.
A member noted the changes made by the Supreme Court in the interactive television provision and asked whether the provision should stay in the procedural rule or be moved to one of the administrative orders on interactive television. A member said the Committee needed to look into the topic of interactive television some more, especially now that interactive television provisions had been integrated into the procedural rules.
The Chair observed that the trend was to move the interactive television provisions into the procedural rules so that the administrative pilot project orders could be allowed to expire when no longer needed. The Chair said it was important that the interactive television rules be integrated into the procedural rules so that they could be found by prosecutors, attorneys and judges wishing to use them.
A member observed that the interactive television pilot projects did not seem to be active. A member observed that the South Central Judicial District was taking advantage of interactive television. Another member said that interactive television was up and running in Jamestown.
A member said it was important, as the Committee continues to look at the criminal rules, that the prosecutor and criminal defense attorney members of the Committee be present to articulate their views on the proposed changes.
The main motion to approve the proposed changes and include the rule in the Criminal Rules Package CARRIED unanimously.
RULE 5.1, N.D.R.Crim.P. - PRELIMINARY EXAMINATION (PAGES 225-236 OF THE AGENDA MATERIAL)
Staff explained that the changes to N.D.R.Crim.P. 5.1 were proposed as part of the ongoing criminal rules review and reflected changes made to Fed.R.Crim.P. 5.1 effective December 2002.
Ms. Schmitz MOVED to approve the proposed changes. Judge Schneider seconded.
A member said that the proposed language seemed to suggest that providing a transcript of preliminary proceedings is optional rather than required. A member said that the proposed language also suggested that all preliminary hearings needed to be tape recorded, which would not be practical.
A member said that a "record" needs to be made of all preliminary hearings and if the defendant wants a transcript, that should be made available. A member said that the proposed language seemed to be redefining the term "record."
Ms. Schmitz MOVED to replace "recording" in lines 15-16 with "record." The motion FAILED for lack of a second.
A member said that the existing language seemed to be more workable than the proposed amended language.
Judge Hagerty MOVED to amend the proposed language at lines 15-23. Mr. Kapsner seconded. The motion CARRIED unanimously.
A member said that the current standard is for every court to make a record of preliminary hearings. The member said that the existing language implied that making a record was only required when it was requested. The member said that making a record of the preliminary examination should be automatic.
Judge Nelson MOVED to delete language in lines 18-19 beginning with the words "under the direction of the magistrate" and continuing to the end of the sentence. Judge Geiger seconded. Motion CARRIED unanimously.
The main motion to approve the proposed changes and include the rule in the Criminal Rules Package CARRIED unanimously.
RULE 7, N.D.R.Crim.P. - THE INDICTMENT AND THE INFORMATION (PAGES 237-251 OF THE AGENDA MATERIAL)
Staff explained that the changes to N.D.R.Crim.P. 7 were proposed as part of the ongoing criminal rules review and reflected changes made to Fed.R.Crim.P. 7 effective December 2002.
Ms. Schmitz MOVED to approve the proposed changes. Ms. Moore seconded.
A member said that it seemed unlikely that anyone would use an indictment to charge a defendant with a misdemeanor, as allowed in line 7 of the rule. A member replied that a misdemeanor charge might be included in an indictment package containing felony charges.
A member commented that the proposed change on line 49 seemed problematic. The member said that prosecuting attorneys in practice are required to endorse informations with the names of witnesses. The member said that it was perhaps proper to make this mandatory by rule, instead of being an option, so that the defendant would know who the witnesses are at the time the information is filed.
A member said that proposed changes to the rule seemed to take care of this problem, while other members said that the changes still did not make providing witness names mandatory. A member said that the current rule seemed to work as it required some witness names to be supplied with the information while giving the court the option of requiring the prosecution to provide all witness names once known.
RULE 8, N.D.R.Crim.P. - JOINDER OF OFFENSES AND OF DEFENDANTS (PAGES 252-258 OF THE AGENDA MATERIAL)
Staff explained that the changes to N.D.R.Crim.P. 8 were proposed as part of the ongoing criminal rules review and reflected changes made to Fed.R.Crim.P. 8 effective December 2002.
Ms. Schmitz MOVED to approve the proposed changes. Judge Schneider seconded.
A member said that in practice, some districts open up separate files on all small cases (such as check cases) while other districts group all small cases of similar type together in one file. A member said that the computer system, however, requires a separate file to be input for every count and every defendant in criminal cases. The member said this was a programming problem that should be corrected.
A member asked whether the rule applied to infractions. The member said that joining infractions was useful when a defendant was charged with misdemeanors or felonies as a result of the same criminal transaction.
Ms. Schmitz MOVED to amend language on lines 7-8 to add a reference to infractions. Mr. Sturdevant seconded.
The Chair made reference to N.D.C.C. § 12.1-32-01 which defines the classification of offenses, including infractions. A member said that it is sometimes appropriate to deal with infractions at the same time as other offenses from the same transaction, but to remember that there can be no jury trial or court appointed attorney for infractions.
A member said it makes no sense to deal with infractions in the same way as misdemeanors and felonies. A member responded that it is often useful to group similar offenses together, as in bad check cases, and that if a trial issue develops, they can be separated out again.
Ms. Schmitz's motion CARRIED 13-4.
RULE 9, N.D.R.Crim.P. - WARRANT OR SUMMONS UPON INDICTMENT OR INFORMATION (PAGES 259-270 OF THE AGENDA MATERIAL)
Staff explained that the changes to N.D.R.Crim.P. 9 were proposed as part of the ongoing criminal rules review and reflected changes made to Fed.R.Crim.P. 9 effective December 2002.
Mr. McLean MOVED to approve the proposed changes. Judge Hagerty seconded.
Without objection, a typographical error on line 19 was corrected.
FOR THE GOOD OF THE ORDER
A Committee member distributed a letter he had written to the Supreme Court on its proposed changes to N.D.R.Civ.P. 16 regarding triggering mechanisms for scheduling conferences.
The member explained that the Committee had looked at the Rule 16 triggering mechanisms proposed by the Supreme Court and decided that they were not good ideas. The member admitted, however, that there was a desire among some groups to add triggering events to Rule 16 beyond those approved by the Committee.
The member said that the letter was drafted to outline the Committee's position on Rule 16 so that if any Committee members attended the hearing on the rule, they would know exactly where the Committee stood. The member said the letter was composed by several Committee members in a spirit of compromise.
The member said that the letter urged a meeting between a group of Committee members, Court Administrator Ted Gladden, and a group of members from the Case Management Committee. The member said the desire was to work for a consensus on scheduling conferences and amendments to Rule 16. The member said that it was understood that the Supreme Court wanted to go beyond where the Committee wanted to do on Rule 16, and that the joint meeting proposed in the letter would allow the Committee to have some input on the solution chosen.
Mr. McLean MOVED that Mr. Kapsner and Mr. Kuntz be urged by the Committee to appear at the Supreme Court's hearing on N.D.R.Civ.P. 16 to express views consistent with those appearing in the letter. Judge Hagerty seconded.
A member said that the motion was ill advised. The member said the function of the Committee was clearly laid out by the Supreme Court. The member said that the Committee had fulfilled its function by providing its recommendations to the Supreme Court. The member said that the Court had evaluated the Committee's recommendations. The member said if some other group or individual wanted to comment on how the Court responded to the Committee's recommendations, that would be an appropriate way to continue the process. The member said the Committee, however, had fulfilled its role in the process.
A member said that, by sending a representative to the hearing, the Committee essentially would be making a motion to reconsider to the Supreme Court. A member responded that the request would be made with the greatest respect to the Court. A member said the Committee had already done its part in the process.
A member said that if a Committee representative did not present the position outlined in the letter at the hearing, the resulting rule would be one that would face universal condemnation from the practicing bar. The member said the Committee should make one more effort to try to persuade the Supreme Court of the need for a further look at the scheduling conference triggers in Rule 16.
A member said that anyone who wanted to express such an opinion to the Supreme Court could do so as an individual. A member responded that all was desired from the Court was a chance to have a group of interested parties take another look at Rule 16 before the Court's changes went into effect.
A member said the Supreme Court gave the Committee the task of looking at the rule and putting it in the best form possible. The member said it was appropriate to offer to keep working on the rule since the Court wanted the rule to be as good as possible and accepted by the legal community.
A member said that going to the Supreme Court to ask for further consideration of Rule 16 was not objectionable because the Case Management Committee's original proposal had been so changed by the Committee's amendments, and the Court's additional proposals, that the resulting rule did not make sense. The member said that Rule 16 should be looked at again in light of the changes that had been made, and that with some work, it might be simplified and made more acceptable to all sides.
A member said that the Committee may have rushed its work on Rule 16. A member responded that the Committee had a specific assignment and a deadline to report back to the Supreme Court. The Chair reminded the Committee that it did look at the rule at two meetings.
A member said there was really nothing new for the Committee to propose to the Supreme Court on Rule 16, other than repeating what it had already said. The member said that the Committee should leave the rule alone and let the dialogue continue at the Court level.
A member said that if members of both of the committees that discussed the rule have reservations about the resulting proposal, then it is important that the Committee send a representative to the hearing and make this point clear. The member said that this Committee, the Case Management Committee and Mr. Gladden should get together and see if a consensus could be reached on Rule 16.
A member said the Committee needed to let the Supreme Court be the Supreme Court and that it was not the Committee's place to challenge the Court's proposed changes. A member replied that the Committee had an interest in making its position clear to the Court, given the complex process that had produced the proposed changes to Rule 16.
A member asked whether the letter would be sent to the Supreme Court. A member replied that the letter would not be sent if the motion to send representatives to the hearing
Mr. McLean's motion CARRIED 14-2.
The meeting adjourned at approximately 11:45 a.m., January 30, 2004.
Michael J. Hagburg