MINUTES OF MEETING
Joint Procedure Committee
January 25, 2007
TABLE OF CONTENTS
Rule 3, N.D.R.Civ.P., Commencement of Action 3
Rule 26, N.D.R.Civ.P., General Provisions Concerning Discovery; Rule 510, N.D.R.Ev.,
Waiver of Privilege by Voluntary Disclosure 9
Rule 37, N.D.R.Civ.P., Failure to Make or Cooperate in Discovery; Sanctions 10
Rule 404, N.D.R.Ev., Character Evidence Not Admissible to Prove Conduct, Exceptions:
Other Crimes 10
Rule 55, N.D.R.Civ.P., Default 11
Order 14, N.D. Sup. Ct. Admin. R., Electronic Filing Pilot Project 12
Order 16, N.D. Sup. Ct. Admin. R., Electronic Filing Pilot Project for the District Courts 15
Rule 4, N.D.R.App.P., Appeal--When Taken 16
Rule 10, N.D.R.App.P., The Record on Appeal 16
Rule 25, N.D.R.App.P., Filing and Service 17
Rule 26, N.D.R.App.P., Computing and Extending Time 17
Rule 31, N.D.R.App.P., Serving and Filing Briefs
18
Rule 32, N.D.R.App.P., Form of Briefs, Appendices and Other Papers 19
Rule 40, N.D.R.App.P., Petition for Rehearing 19
Rule 44, N.D.R.App.P., Case Involving a Constitutional Question 19
CALL TO ORDER
The meeting was called to order at 1:00 p.m., on January 25, 2007, by the Chair, Justice Dale Sandstrom.
ATTENDANCE
Present:
Justice Dale V. Sandstrom, Chair
Honorable Georgia Dawson
Honorable M. Richard Geiger
Honorable Debbie Kleven
Honorable David W. Nelson
Honorable Allan L. Schmalenberger
Honorable Thomas J. Schneider
Honorable Michael G. Sturdevant
Mr. Larry L. Boschee
Mr. Steven W. Plambeck
Mr. Bruce D. Quick
Ms. Cathy Howe Schmitz
Absent:
Honorable Donovan Foughty
Honorable John Greenwood
Mr. Daniel Dunn
Mr. Daniel S. Kuntz
Mr. Galen J. Mack
Ms. Jeanne L. McLean
Mr. Ronald H. McLean
Ms. Joanne Hager Ottmar
Staff:
Colette Bruggman
Mike Hagburg
Kim Hoge
PRELIMINARY MATTERS
The Chair announced that four new members had been appointed to the Committee: Judge John Greenwood, Mr. Larry Boschee, Mr. Daniel Dunn and Ms. Joanne Hager Ottmar.
The Chair discussed the schedule for the meeting and reviewed the schedule for future meetings.
Judge Sturdevant MOVED to approve the minutes. Judge Geiger seconded. Motion CARRIED unanimously.
APPROVAL OF ANNUAL RULES PACKAGE
Staff reported that the Supreme Court had approved the Committee's proposed rule amendments with only a limited number of changes. Staff informed the Committee that the
amendments will become effective on March 1, 2007.
RULE 3, N.D.R.Civ.P. - COMMENCEMENT OF ACTION (PAGES 28-84 OF THE AGENDA MATERIAL)
Staff explained Rule 3 had been tabled at the September 2006 meeting so that an alternate draft could be discussed at the January 2007 meeting. Staff also reported that the Supreme Court requested the Committee to prepare a report on whether it was advisable to adopt a system of commencement by filing in North Dakota.
Ms. Schmitz MOVED to adopt alternate draft of Rule 3. Mr. Quick seconded.
A member suggested that the language of the alternate draft could be cleaned up.
The Chair said that the Court was looking for a recommendation from the Committee whether a new rule commencement of action rule should be adopted, but that the Court also wanted the Committee to report on the other changes that would be necessary, including changes to other rules, if the Court adopted a system of commencement by filing.
Ms. Schmitz MOVED to amend the alternate draft on line 4, page 31, by deleting the words "a copy of." Judge Kleven seconded.
A member said the "a copy of" language raised questions about whether an original of the summons needed to be served. The member said that copies of both documents, not originals, are generally served.
A member commented that if a party serves the original summons and the original complaint, this puts control of the original documents into the hands of the defendant, which makes it difficult for a plaintiff who wants to file the originals. The member said it was common practice for the plaintiff to serve a copy of the complaint and to retain the original complaint for filing.
A member pointed out that Rule 4 talked about serving "a copy" of the summons. The member said that "copy" was also used in Rule 5. The member suggested that if the "a copy of" language was removed from the proposal, this might be read to imply that serving the originals is necessary.
In response to a question from a member, staff explained that the language in the proposal (including the "a copy of" language) echoed the language in the Washington commencement of actions rule. Staff also said that newly approved language in Rule 4 also
references "a copy of" the complaint.
The motion to amend CARRIED 6-5.
By unanimous consent, the word "a" at the beginning of line 5, page 31, was deleted.
Ms. Schmitz MOVED to delete the words "as provided by Rule 4" on line 5, page 31. Judge Nelson seconded.
A member said it was the Committee's longstanding practice not to refer to other rules in the text of a rule. The member said the reference to Rule 4 was superfluous.
A member said that the language was useful because, if Rule 4 was changed in the future, the language of Rule 3 would not have to be amended. The member said the language made it clear that Rule 4 set out the details for service of a summons and complaint.
A member said that it might be necessary to retain the reference to Rule 4 because Rule 5 also provides for service of documents. The member said the language establishes that only Rule 4 service can commence an action.
The motion to amend was DEFEATED 3-7.
A member said that changing the date an action is commenced is a substantive change and beyond the power of the Committee. Staff replied that Washington had dealt with this issue by referring back to their commencement of actions statute in their rule and indicating that the statute governed tolling of the statute of limitations.
A member said that in Long v. Jaszczak, 2004 ND 194, 688 N.W.2d 173, the North Dakota Supreme Court stated that N.D.C.C. § 28-01-38 sets out procedural requirements. The member said that a revised rule could coexist with the statute because the rule would tell how an action is commenced while the statute states how the limitations period is determined.
A member said that Washington showed that a commencement rule and tolling statute may coexist by adding language referring to their tolling statute to their rule. The member said, however, that the cases cited in the meeting materials were not on point on the question of whether time of commencement is a substantive or procedural issue.
The member said that a Florida case Lundstrom v. Lyon, 86 So.2d 771 (1956) involved a procedural rule that said civil actions were commenced by filing and a state statute
that said actions were commenced by service. The member said the Lundstrom court held that a distinction could be made between the effect of the rule and the statute. The court said the rule triggered deadlines and procedures within the civil justice system, while the statute was substantive and controlled tolling. Therefore, the Lundstrom court said the rule was substantive.
Staff commented that N.D.C.C. § 28-01-38 was listed as "superseded" in the alternate draft of Rule 3 and if the Committee considered it substantive and did not want to supersede it, a further amendment to the proposal could be made.
Mr. Boschee MOVED to add language to the proposal stating that "An action shall not be deemed commenced for the purpose of tolling an statute of limitations except as provided in N.D.C.C. § 28-01-38." Ms. Schmitz seconded.
A member said addition of the language would gut the proposal and create a trap for the unwary. The member said the rule allowed commencement by filing and the proposed addition ran counter to this. The member said the statute was procedural and could be superseded by the proposed rule.
A member asked if there was a downside to having filing be the action that commenced an action. The member said it was harder to find a defendant and serve the action than it would be to go to the courthouse and file an action.
A member said the reason why the Committee chose to consider the rule change proposal was because the members were not convinced that a change to commencement by filing was a good idea, but they thought that having an option of commencement by filing might be useful in some cases to toll the statute of limitations. The member said if filing would not toll the statute of limitations, there was no reason to consider altering the rule to add this option.
A member said the Committee had discussed the main objections to commencement by filing at the last meeting. The member said these objections revolved around privacy - a filed complaint immediately becomes public. The member said the main advantage of commencement filing was that it allowed for better case management by the court system. The member said a system that allowed commencement either by service or filing would not accomplish better case management.
A member said that by calling for a report from the Committee, the Supreme Court was calling for dialogue on all topics related to commencement of civil actions, so the Committee should not be too quick to reject any possible solution or innovation.
A member said that a dual system allowing commencement by service or filing would be contrary to the goal of simplicity. The member said that two sets of rules on how to handle cases would have to be developed based on how a given case was commenced. The member said if a move to electronic filing and service was inevitable, the first step toward such a system would be a switch to commencement by filing.
The member said that dual system alternative should be kept intact for the court to consider because it addresses the issue of the tolling statute. The member said, however, that if commencement by filing is adopted, for simplicity's sake the statute of limitations should be tolled at the time of filing. The member said parties should not have to take into account the possible effect of the tolling statute.
A member observed that, in a diversity case, filing a matter in federal court (even though it commences the federal case) does not toll that statute of limitations. The member said that tolling is based on state law. The member said that if North Dakota adopts commencement by filing, it should adopt a simple rule like Fed.R.Civ.P. 3 and supersede any tolling statute.
The motion to amend was DEFEATED.
Ms. Schmitz MOVED to delete the words "copy of the" from the text of the explanatory note on lines 8-9 of the proposal. Judge Sturdevant seconded.
A member suggested that the "copy" language be retained in the explanatory note because otherwise some parties might serve original complaints.
The motion to amend was DEFEATED.
A member asked whether there were any types of civil actions now being served with a summons alone that would be affected by the proposed change in the rule requiring service of a summons and complaint. The Committee consensus was that no actions would be adversely affected by requiring the service of summons and complaint together.
A member commented that it would be simpler to adopt a rule that did not allow parties to choose whether to commence an action by service or filing. The member said, however, that switching to a system of commencement by filing and abandoning commencement by service might be too drastic a step. The member said adopting a dual system would be a step toward changing to a system of commencement by filing.
A member said it would be simpler to switch to a system of commencement by filing
without taking an intermediate step to a dual system.
A member reminded the Committee that these actions had once been called "special proceedings," such as applications for writs of mandamus. The member said that these proceedings had been governed by their own particular statutory rules. The member said that, in recent years, these proceedings have been brought under the civil actions umbrella and that switching to a system of commencement by filing might further change the way these actions are commenced.
Mr. Plambeck MOVED to substitute the original Rule 3 proposal on page 30 for the alternate draft. Judge Kleven seconded.
A member commented that if the Committee recommended the adoption of a dual system, rules like N.D.R.Civ.P. 40 on notes of issue and certificates of readiness and N.D.R.Civ.P. 16 on pretrial conferences would have to be rewritten to include dual systems for handling cases depending on whether the case had been commenced by service or filing. The member said that if a service option was retained, there would have to be standards on when the court could begin exercising control over the case, while if a case was commenced by filing, the court could exercise control immediately.
A member said that, if the a system of commencement by filing was adopted, there would be nothing to preclude debt collectors and malpractice plaintiffs from serving the summons and complaint without filing - they would simply have to keep a close eye on the statute of limitations since service would no longer commence the action.
Staff explained to the Committee that the Committee's preference would guide staff in conducting research in the interim prior to the April 2007 meeting. Staff said that research would be done to determine what other rule changes would be needed to implement the Committee's preferred system.
A member said it would be too drastic a step to recommend a switch to a system of commencement by filing. The member said it would be better to take a slower approach and implement a dual system before moving to commencement by filing.
In answering a question, staff confirmed that only a few states still used commencement by service, but that two of them - South Dakota and Minnesota - were neighbor states.
The motion to substitute CARRIED 7-4.
A member asked whether, under a system of commencement by filing as would be put in place by the Rule 3 proposal, there was any requirement that the plaintiff, after filing, make efforts to serve the complaint. A member responded that Fed.R.Civ.P. 4(m) require that a complaint be served within 120 days after filing.
The Chair commented that the Court anticipates that, if a system of commencement by filing is put into place, numerous changes to the civil rules would be required. The Chair stated that the Court expected the Committee to identify these changes as part of its work in discussing commencement by filing.
A member said that staff should be instructed to use the proposal the Committee is considering as a starting point in looking at how the other rules would be affected if the changes to Rule 3 were approved.
A member said that the Committee should also look at what impact a change would have on court staff. The member said that issues related to N.D.R.Civ.P. 16 would also need to be addressed - there would have to be decisions made on which cases needed case management.
The member also said that privacy issues, such as in medical malpractice cases and divorce cases, needed to be addressed. The member said that keeping these issues private makes it easier to mediate disputes. Under commencement by filing, court might have to consider sealing more of these cases in order to avoid chilling settlement prospects.
A member responded that possible problems from a switch to commencement by filing were overestimated by critics, especially when the fact that most other states use commencement by filing already is considered. The member said that cases are still settled in the federal system even though it has used commencement by filing since the 1930's. The member said parties seeking settlements may have to change their practices by taking steps like sending a copy of the complaint out prior to filing.
The member said one of the advantages of commencement by filing was that it is very easy to know when an action starts - it starts with filing. There are no questions about service. The member said most collection actions likely would not be affected since the majority are resolved by default judgment.
A member said that approving a rule proposal was an important first step in confronting the issues that would be raised by a switch to commencement by filing. The member said that the privacy issues that would exist under commencement by filing would spur pre-filing negotiation between parties and could expedite settlement. The member said
that parties who are negotiating a settlement can enter into tolling agreements while they try to work things out, without going to court.
The member said that there are security issues that can be better addressed under a system of commencement by filing. The member said the federal government did not get serious about electronic filing until courts started receiving envelopes containing white powder.
The motion to approve the amendments to Rule 3 was DEFEATED 5-7.
The Chair explained to the Committee that the topic of commencement by filing would be considered again at the next meeting because other rules would need to be amended if a shift was made to this system. Staff was instructed to research the civil rules and bring the Committee addition commencement by filing related rule proposals to discuss at the April 2007 meeting.
Staff explained that, after approving amendments to Rule 26 at the September 2006 meeting, the Committee had instructed staff to investigate possible inconsistencies between the rule's new "safe harbor" provision and North Dakota's rules on privilege. Staff presented amendments to Rule 26 and N.D.R.Ev. 510 addressing the inconsistencies.
Ms. Schmitz moved to adopt proposed amendments to Rule 26. Judge Schneider seconded. Motion CARRIED unanimously.
Judge Dawson moved to adopt proposed amendments to Rule 510. Judge Sturdevant seconded. Motion CARRIED unanimously.
The amendments to Rule 26 and Rule 510 will be sent to the Supreme Court as part of the Annual Rules Package.
Staff pointed out that a member of the Committee had raised the possibility at the September 2006 meeting that the "safe harbor" provision might be inconsistent with new Rule 4.5 of the North Dakota Rules of Professional Conduct on inadvertent transmission. The Committee reviewed Rule 4.5 and the consensus was there were no problems with consistency between the rules.
Staff reviewed the status of the Uniform Rules of Electronic Discovery. Staff also provided the Committee with information on the implementation of the federal electronic discovery rules, which took effect on December 1, 2006. Staff asked the Committee whether it wished to consider integration of a "meet and confer" requirement applicable to electronic discovery consistent with the requirements in the federal rules and the proposed uniform rules.
Mr. Plambeck MOVED to have staff include "meet and confer" amendments when reporting back to the Committee regarding implementing commencement by filing. Judge Kleven seconded. Motion CARRIED unanimously.
A member observed that, even though North Dakota does not now have a meet and confer requirement in its discovery rules, under N.D.R.Civ.P. 16 the trial court in its discretion may schedule a conference to talk about discovery issues, including electronic discovery.
Staff explained that, after approving amendments to Rule 37 at the September 2006 meeting, the Committee decided to bring the rule back for consideration of whether language exempting the State of North Dakota from monetary sanctions should be deleted.
Judge Dawson MOVED to adopt proposed amendments to Rule 37. Judge Schneider seconded.
A member said that the state has acknowledged that it can be sued. The member said that once the state comes into court, it should be subject to the same rules as any other litigant. The member said that if the state wanted to enjoy the benefits of coming into court, the state should be required to fulfill the same responsibilities as any other litigant, and be subject to sanctions if they do not.
The motion to adopt proposed amendments to Rule 37 CARRIED unanimously. The amendments will be sent to the Supreme Court as part of the Annual Rules Package.
Staff explained that, because the Committee approved amendments to Rule 404 at the
September 2006 meeting by less than a two-thirds margin, the rule was being brought back for further consideration. Staff indicated that an alternate draft of the rule had been prepared that did not include federal changes allowing use of the rule's exceptions only in criminal cases.
Ms. Schmitz MOVED to adopt proposed amendments to Rule 404. Judge Sturdevant seconded.
A member expressed opposition to deleting civil matters from the scope of Rule 404. The member said there could be a civil case alleging assault and battery where the character of the plaintiff or defendant could be relevant to the resolution of the matter. The member said that other rules of evidence do not contemplate admission of such character evidence. The member said that without the Rule 404 exception in civil cases, parties may not be able to get relevant evidence before the jury.
Staff explained that the alternate draft retained the Rule 404 exception in civil cases, but that it was updated to reflect changes that had taken place since 1994, including adding a cross-reference to N.D.R.Ev. 412.
Judge Nelson MOVED to substitute, asking that the Committee consider adoption of the proposed alternate draft of Rule 404. Ms. Schmitz seconded.
A member pointed out that the language of the alternate draft, and the existing rule, refers to "an accused" and "the prosecution," suggesting that the exemption would only apply in criminal cases even without further amendment.
A member responded that the annotations to the federal rule, which used the same language as N.D.R.Ev. 404, show that the exemption has been applied in civil cases. Staff said that there seemed to be a split among the federal circuits on whether the rule was applicable in civil cases. Staff said the federal amendment were intended to make clear that the federal rule's exemption does not apply in civil cases.
The motion to substitute CARRIED 9-1.
The motion to adopt proposed amendments to Rule 404 CARRIED 7-3. The amendments will be sent to the Supreme Court as part of the Annual Rules Package.
RULE 55, N.D.R.Civ.P. - DEFAULT (PAGES 188-202 OF THE AGENDA MATERIAL)
Staff explained that the Chief Justice requested the Committee to consider amending
Rule 55 to make service of a motion for default mandatory in all cases in which default judgment is sought.
Judge Kleven MOVED to adopt proposed amendments to Rule 55. Judge Schneider seconded.
A member asked who the motion for default would be served upon. The member said that in most collection cases, the motion is not served because there has been no response at all to the summons. The member said that if plaintiffs were required to serve the default motion, they would need to use sheriff service.
A member said that no motion is served in at least 90 percent of the current default cases because there has been no response at all from the defendant. Another member said a motion is served in only 5-10 percent of default cases.
A member commented that Rule 5 states that no service need be made on parties in default except when there is a pleading asserting new or additional claims for relief. The member said that if Rule 55 was amended, Rule 5 would also need to be amended.
A member said that thousands of cases go through the courts in which the defendant makes no response to the summons and no appearance.
A member said that attorneys who handle default cases typically handle many such cases. The member said that these attorneys typically act in good faith and serve a default motion on the defendant when there is some action by the defendant that could constitute an appearance. The member said an appearance is made in only 5-10 percent of default cases.
The motion to adopt proposed amendments to Rule 55 was defeated 1-9.
Staff explained that the Supreme Court Clerk requested the Committee to consider amending Admin. Order 14 to require the numbering of paragraphs in all documents submitted to the Supreme Court in electronic form.
Judge Dawson MOVED to adopt proposed amendments to Admin. Order 14. Judge Schneider seconded.
Ms. Bruggman explained the request to amend. She said that under the present rule,
a document can be filed electronically in word processing or portable document format. She said that electronically filed .pdf documents generally have page numbers rather than paragraph numbers. She said the clerk's office would prefer to have paragraph numbers on all electronically filed documents.
A member asked whether a party who scanned a hard copy to create a .pdf for electronic filing would need to put paragraph numbers on the document. Ms. Bruggman said that the rule proposal would require putting in paragraph numbers, but that they are not currently required on .pdf documents.
A member asked whether lawyers would have to alter hard copy documents to add paragraph numbers if they decided to file electronically. Ms. Bruggman said that lawyers who wish to file electronically do not need to create a hard copy document for filing - she said they just need to file an electronic copy. She said, however, that they would need paragraph numbers in their electronic document if they filed electronically.
Ms. Bruggman said most lawyers who file electronically file a word processing document. She said the current rule requires paragraph numbers in electronically filed word processing documents.
Staff said that .pdf documents filed electronically are not all created by scanning. Staff said some are created directly from word processing documents. Staff said some law firms choose to create .pdf documents for electronic filing because the process strips metadata and document trail information from the resulting .pdf document.
A member asked whether the change would create problems for pro se applicants. Ms. Bruggman said any party who filed a document that was not in compliance with the Supreme Court's rules would be instructed to correct the document and refile. She said that most pro se litigants file hard copies, so the change to the electronic filing rule would not affect them.
A member said there was some concern about whether documents served electronically were actually being received. The member said that one step to help resolve concerns about electronic service would be to require proof of service be sent to the recipient by mail. The member said this would verify that something was sent electronically and would warn the recipient to check if the document had not been received.
Mr. Plambeck MOVED to add language at the end of line 58, on page 206: "A party serving a document by electronic means must also mail proof of service to opposing counsel." Judge Nelson seconded.
A member asked whether the federal rules required mailing a proof of service. A member replied that, in federal court, electronically filed documents are served on opposing parties by the clerk of court's office. The member said that electronic documents sent by the clerk are less likely to be held up by a spam filter than documents sent by other parties.
Ms. Bruggman said that the Supreme Court clerk's office has not had problems with electronically served documents not reaching opposing parties because the clerk's office acknowledges receipt of all filed documents, including those electronically filed, with a letter sent to all parties. She said the letter would alert parties if an electronically served document had not reached its destination.
A member asked whether the clerk's office had any plans to stop sending out hard copy acknowledgment letters to parties. Ms. Bruggman said stopping sending the letters had not been discussed.
Ms. Bruggman said that in rare cases where a party had not received an electronically filed and served document, the clerk's office had accommodated the party by adjusting deadlines.
A member said the idea of sending proof of service was a good one because not everyone using the system was completely efficient working with electronic document transmission. The member wondered whether sending should be limited to mail or whether other non-electronic means could be used for sending.
A member commented that adding the requirement to send a proof of service would defeat one purpose of electronic filing, reduction of paper. A member responded that electronic service was not completely trustworthy.
A member said that there was no need for the amendment as long as the clerk's office continues to send notices acknowledging receipt of documents. A member said that the rule should not be changed unless the clerk discontinues this practice or some other problem develops.
The motion to amend the proposal was DEFEATED.
The motion to adopt proposed amendments to Admin. Order 14 CARRIED unanimously. The amendments will be sent to the Supreme Court as part of the Annual Rules Package.
Staff explained that Supreme Court Finance Director Susan Sisk requested that the Committee consider amending Admin. Order 16 to allow the filing of initial pleadings in electronic form.
Judge Dawson MOVED to adopt proposed amendments to Admin. Order 16. Mr Quick seconded.
A member asked why the initial pleadings had to be served before they could be filed electronically. Staff responded that under N.D.R.Civ.P. 3, an action is not commenced until pleadings are served.
A member asked about signing the pleadings, whether an electronic signature was adequate. A member responded that what a party intends to be a signature is a signature under the current state of the law.
Judge Schmalenberger MOVED to delete lines 5-6 on page 209. Judge Nelson seconded.
A member said that sometimes parties want to file a complaint and then send the documents for service and the proposed amendment would allow this. A member agreed that in matters such as those involving temporary restraining orders, papers are usually filed before they are served on the defendant.
The motion to amend CARRIED.
By unanimous consent, proposed new language on line 35, page 210, was deleted to harmonize with the amendment.
A member suggested the language in lines 8-9 on page 209 be extended to give an electronic notary signature the same effect as an electronic attorney or party signature.
Judge Sturdevant MOVED to amend the language of line 8 to read "The typed attorney, party or notary public name or facsimile signature . . ." Judge Geiger seconded.
A member asked whether the secretary of state had addressed the issue of whether a notary signature could be transmitted electronically. A member replied that a notary signature could be scanned.
Mr. Plambeck MOVED to amend the amendment to include the words "party, notary public or other." Judge Sturdevant seconded.
A member said that the proposed change would account for witnesses and others who might sign sworn statements.
The motion to amend the amendment CARRIED.
The motion to adopt the amendment CARRIED.
The motion to adopt proposed amendments to Admin. Order 16 CARRIED unanimously. The amendments will be sent to the Supreme Court as part of the Annual Rules Package.
RULE 4, N.D.R.App.P. - APPEAL--WHEN TAKEN (PAGES 213-233 OF THE AGENDA MATERIAL)
Staff explained that, consistent with a federal amendment, an amendment to Rule 4 was proposed to clarify that the filing of an N.D.R.Crim.P. 35(a) motion does not suspend the time to file a notice of appeal.
Judge Kleven MOVED to adopt proposed amendments to Rule 4. Judge Dawson seconded.
The motion to adopt proposed amendments to Rule 4 CARRIED unanimously. The amendments will be sent to the Supreme Court as part of the Annual Rules Package.
RULE 10, N.D.R.App.P. - THE RECORD ON APPEAL (PAGES 234-242 OF THE AGENDA MATERIAL)
Staff explained that an amendment to Rule 10 was proposed to clarify that unrepresented parties must be provided with a copy of the transcript.
Judge Schneider MOVED to adopt proposed amendments to Rule 10. Mr. Quick seconded.
The motion to adopt proposed amendments to Rule 10 CARRIED unanimously. The amendments will be sent to the Supreme Court as part of the Annual Rules Package.
RULE 25, N.D.R.App.P. - FILING AND SERVICE (PAGES 243-251 OF THE AGENDA MATERIAL)
Staff explained that, consistent with federal amendments, an amendment to Rule 25 was proposed to specify that service by electronic means is authorized, regardless of what means are used to file the appeal.
Judge Dawson MOVED to adopt proposed amendments to Rule 25. Mr. Quick seconded.
A member asked why the term "paper" was being used in the amendment. Staff explained that the federal rules use the term "paper" and the term is also used consistently throughout the North Dakota appellate rules.
The motion to adopt proposed amendments to Rule 25 CARRIED unanimously. The amendments will be sent to the Supreme Court as part of the Annual Rules Package.
RULE 26, N.D.R.App.P. - COMPUTING AND EXTENDING TIME (PAGES 252-256 OF THE AGENDA MATERIAL)
Staff explained that, consistent with federal amendments, an amendment to Rule 26 was proposed to account for the addition of electronic service as an option under Rule 25.
Judge Sturdevant MOVED to adopt proposed amendments to Rule 26. Judge Schneider seconded.
Mr. Plambeck MOVED to delete the word "delivered" on line 18, page 253, and replace with the words "served personally." Ms. Schmitz seconded.
A member said that the word "delivered" could be interpreted to apply to items that were served electronically. The member said, in the federal system, items served electronically are treated as if they were mailed. The member said three additional days should be given for items served electronically because recipients may not be available to pick up an email.
Ms. Bruggman explained the Supreme Court clerk does not currently add three additional days if items are served electronically.
Staff explained the electronic filing pilot project rules, Admin. Order 14 and 16, treat electronic service differently. Admin. Order 16, electronic filing in the district courts,
specifically states that items served electronically are treated as if they were mailed on the day of transmission. Admin. Order 14, electronic filing in the Supreme Court, omits this language.
A member commented that items served electronically should be treated the same in district court and Supreme Court matters. The member asked that amendments to Admin. Order 14 be prepared for consideration by the Committee at the April 2007 meeting.
A member asked what the motion language "served personally" was intended to mean. A member responded that it would refer to items that were hand delivered to the recipient. A member said personal service could be interpreted to have a broader meaning.
Staff drew the Committee's attention to federal language on service that had not been incorporated into the rule proposal.
Mr. Plambeck MOVED to amend his motion to conform to the federal language, adding the words: "For purposes of this rule, a paper that is served electronically is not treated as delivered on the date of service stated in the proof of service." at the end of line 18. By unanimous consent, Mr. Plambeck's amendment was changed.
Motion to add language to proposal CARRIED unanimously.
The motion to adopt proposed amendments to Rule 26 CARRIED unanimously. The
amendments will be sent to the Supreme Court as part of the Annual Rules Package.
RULE 31, N.D.R.App.P. - SERVING AND FILING BRIEFS (PAGES 257-261 OF THE AGENDA MATERIAL)
Staff explained that, consistent with federal amendments, an amendment to Rule 31 was proposed to clarify that briefs must be served on unrepresented parties and to update language related to electronic copies of briefs.
Judge Schneider MOVED to adopt proposed amendments to Rule 31. Judge Kleven seconded.
Ms. Bruggman explained one reason why the amendment was needed because diskettes were no longer the standard form for transmission of electronic copies of briefs to the Supreme Court.
The motion to adopt proposed amendments to Rule 31 CARRIED unanimously. The amendments will be sent to the Supreme Court as part of the Annual Rules Package.
Staff explained the amendment of Rule 32 was proposed to transfer length requirements for petition for rehearing briefs to Rule 40.
Mr. Quick MOVED to adopt proposed amendments to Rule 32. Judge Dawson seconded.
The motion to adopt proposed amendments to Rule 32 CARRIED unanimously. The amendments will be sent to the Supreme Court as part of the Annual Rules Package.
RULE 40, N.D.R.App.P. - PETITION FOR REHEARING (PAGES 269-272 OF THE AGENDA MATERIAL)
Staff explained amendment of Rule 40 was proposed to add length requirements for petition for rehearing briefs.
Mr. Quick MOVED to adopt proposed amendments to Rule 40. Judge Dawson seconded.
The motion to adopt proposed amendments to Rule 40 CARRIED unanimously. The amendments will be sent to the Supreme Court as part of the Annual Rules Package.
Staff explained that, consistent with federal amendments, an amendment to Rule 44 was proposed to require notice to the Attorney General when a constitutional question is raised on appeal and the state is not already a party.
Judge Dawson MOVED to adopt proposed amendments to Rule 44. Judge Geiger seconded.
Ms. Bruggman said it was already the policy in the Supreme Court clerk's office to notify the Attorney General when a party raises a constitutional question.
Ms. Schmitz MOVED to replace "questions" on line 4, page 274, with "challenges"
and to replace "questioning party" on line 6, page 274, with "challenging party." Judge Sturdevant seconded.
A member said the word "question" was a better fit because it was in the title of the rule and also because a constitutional issue would be a "question presented" in a brief.
A member observed that in the federal rule, "challenge" was used in the subtitles but "question" was used in the text of the rule.
The motion to amend was DEFEATED 2-7.
The motion to adopt proposed amendments to Rule 44 CARRIED unanimously. The amendments will be sent to the Supreme Court as part of the Annual Rules Package.
The meeting adjourned at approximately 4:30 p.m. on January 26, 2006.
_________________________________
Michael J. Hagburg