MINUTES OF MEETING
Joint Procedure Committee
January 27-28, 2011
TABLE OF CONTENTS
Rule 65, N.D.R.Civ.P.,
Order 19, N.D. Sup. Ct. Admin. Order, Return of Scanned Documents 29
CALL TO ORDER
The meeting was called to order at 1:00 p.m., on January 27, 2011, by the Chair, Justice Mary Muehlen Maring.
Justice Mary Muehlen Maring,
Honorable Laurie Fontaine (Friday only)
Honorable John Greenwood (Thursday only)
Honorable William A. Herauf
Honorable Debbie Kleven
Honorable Steven McCullough
Honorable William McLees
Honorable David E. Reich
Honorable Thomas J. Schneider
Mr. Larry L. Boschee
Mr. Daniel Dunn
Mr. Robert Hoy
Mr. Galen J. Mack
Mr. Richard H. McGee
Assistant Dean Jeanne L. McLean (Thursday only)
Mr. Bruce D. Quick (Friday only)
Mr. Kent Reierson
Honorable Steven L.
Ms. Joanne Hager Ottmar
The Chair set out the schedule for the meeting.
APPROVAL OF MINUTES
Judge Herauf MOVED to approve the minutes. Judge Kleven seconded. The motion to approve the minutes CARRIED unanimously.
RULE 65, N.D.R.Civ.P., INJUNCTIONS (PAGES 35-73 OF THE AGENDA MATERIAL)
Staff explained that Rule 65 came before the Committee at the January 2010 meeting for form and style amendment as part of the Civil Rules Package, but that the Committee decided that the rule should be redrafted to incorporate and supersede North Dakota's injunction statutes. After the Committee examined staff's Rule 65 proposal at the April 2010 meeting, a subcommittee was appointed to assist staff in further redrafting the rule. The subcommittee prepared a new Rule 65 proposal, which staff presented for the Committee's consideration.
Staff noted that, at the April 2010 meeting, approval of the initial Rule 65 proposal prepared by staff was moved and seconded, but no further motions were made and the proposal was simply passed on to the subcommittee. The motion on the initial staff proposal, therefore, was still pending.
Judge Kleven MOVED a substitute motion to approve the subcommittee's proposed amendments to Rule 65 instead of the initial Rule 65 proposal. Judge McCullough seconded.
Mr. Boschee, as a representative of the subcommittee, explained the process of drafting the Rule 65 proposal. He said the subcommittee first looked at the federal rule and then consulted the injunction rules of all states. He said that most states had adopted some variant of the federal rule while a handful of states like North Dakota continued to rely on old statutes for their injunction procedure.
Mr. Boschee said the subcommittee found many interesting ideas among the
Mr. Boschee said the first issue the subcommittee addressed was the organization of the rule. He said that the federal rule addresses preliminary injunctions first and then moves to temporary restraining orders. He said the subcommittee followed the lead of several states in deciding to deal with temporary restraining orders first in the new Rule 65 because, when a party is seeking an injunction, seeking a temporary restraining order is the earliest step.
Mr. Boschee said the subcommittee decided to rename the temporary restraining order because it was clumsy to use the language "injunctions and orders" throughout the rule. Mr. Boschee said the subcommittee decided that the term "provisional injunction" was preferable to "temporary restraining order." Therefore, under the new rule there would be a provisional injunction, a preliminary injunction and a permanent injunction.
Mr. Boschee said that because provisional injunction was a new term, and because statutes and case law refer to temporary restraining orders, the subcommittee decided that defining the term "provisional injunction" in the rule was an essential step.
A member asked whether any other jurisdiction used the term "provisional injunction" instead of "temporary restraining order." Mr. Boschee said that subcommittee invented the term based on commentary in Moore's Federal Practice that described both temporary restraining orders and preliminary injunctions as provisional injunctions. Mr. Boschee said the subcommittee used the term "interim injunction" in the proposed rule to describe anything other than a permanent injunction.
Mr. Boschee said that, under the proposal, the moving party is required to file a complaint seeking injunctive relief before filing a motion seeking an injunction. Mr. Boschee said this requirement was based on New Jersey procedure and that some states do not require the filing of a complaint at all. Mr. Boschee said requiring a complaint makes the injunction process more orderly.
A member said that a complaint must be served before it can be filed under North Dakota's commencement of action procedure. The member also said that proof of service must be attached before a complaint can be filed. The member said that the service requirements make the notice provisions in the proposal problematic. Mr. Boschee said the subcommittee did not consider the complaint service requirement and that the rule's notice
Mr. Boschee said the federal rule requires a party seeking an injunction to certify that efforts were made to notify the other party. Mr. Boschee said the subcommittee reworked the federal language to require that the moving party submit an affidavit reciting the efforts made to give the adverse party notice or to state why notice should not be required.
Mr. Boschee said that the federal rule allows informal notice, which the federal comments indicate is better than no notice at all. Mr. Boschee said the subcommittee wanted to recognize the many means of communication available to provide at least informal notice, so the proposal states that the required reasonable notice is any kind of notice that gives the adverse party notice that it can be heard. Mr. Boschee said the language was meant to be flexible and not restricted to notice by any particular means of communication.
Mr. Boschee said the proposal, like the federal rule, does not require notice when there are exigent circumstances. Mr. Boschee said the subcommittee melded language from the federal rule and various state rules in setting out what was required before a party could obtain a provisional injunction without providing notice. Mr. Boschee said that the court, before granting a provisional injunction, would need to find that the moving party either made reasonable efforts to give notice or showed a substantial reason for not giving notice.
Mr. Boschee said that the proposal spelled out that, regardless of whether or not notice was given, the court would be required to find appropriate injunctions grounds before granting an injunction. Mr. Boschee said the subcommittee did not define "appropriate injunction grounds" because it concluded the definition of this term was a substantive matter, not a procedural one.
A member said that the term "reasonable inquiry" recently had become contentious in North Dakota due to its use in the mineral rights lapse statute. The member said that the term was not defined in the statute and this had led to extensive litigation as to its meaning. The member said defining terms was important so that parties do not interpret important terms their own way. The member suggested that if the committee accepts the terms used in the proposal, it needs to try to make definitions for the terms part of the finished rule or litigation will be the result.
Mr. Boschee said it would be difficult to define what constitutes a "reasonable effort" to provide notice. He said that any grant of injunctive relief is discretionary with the court, so it would be up to the court to make a case-by-case determination on notice.
A member said the reference to requiring "appropriate injunction grounds" was made
Mr. Boschee said the proposal's hearing provisions would require a record to be made so that if a party did not get notice and did not attend, the record would be available to examine. He said that the proposal also gives the court the power to call the adverse party and make it part of the hearing and that the court can also call a recess and require the party seeking an injunction to make additional attempts to give notice.
Mr. Boschee said that an underlying principle behind the rule was to prevent manufactured emergencies and that the proposal's notice provisions, therefore, were designed to encourage the parties to give some kind of notice of the proceeding.
Mr. Boschee said that the proposal's general business operations provision is based on the existing statute, which limits injunctions against corporations and limited liability companies. This provision as crafted by the subcommittee limits interim injunctions to enjoin the ordinary operations of any business organization.
A member asked whether the proposal was intended to require a hearing before a provisional injunction could be granted. The member said such a requirement would not be consistent with current practice in disorderly conduct and domestic violence restraining orders. Mr. Boschee said such proceedings were specifically excluded in one of the last provisions of the rule.
Mr. Boschee said that, if a party obtains a provisional injunction, the proposal sets out a timeline for that party to obtain a preliminary injunction hearing date. Mr. Boschee said the goal is to get a hearing date within 21-28 days of the time the provisional injunction was granted and that the subcommittee chose this time period to provide for a reasonable briefing schedule. Mr. Boschee said the 28-day provisional injunction expiration period was greater than the federal period and that it could be further extended if a preliminary injunction hearing date cannot be timely obtained or for good cause.
Mr. Boschee said the proposal allows a provisional injunction to be dissolved. Mr. Boschee said the federal rule allows an adverse party, who did not receive notice of a temporary restraining order proceeding, to seek dissolution of the order. Mr. Boschee said the proposal is more liberal than the federal rule because it also allows adverse parties who received less than two days notice of a provisional injunction proceeding the power to seek dissolution of that injunction. Mr. Boschee said this was meant to encourage parties to give
A member asked the meaning of "actual notice." Mr. Boschee said that "reasonable notice" may not end up being "actual notice." He said that someone might send an email, which may be "reasonable notice," but the recipient might not open the email and therefore would not receive "actual notice." Mr. Boschee said that "actual notice" would exist if it was established that the recipient received the notice.
A member said that, if the party seeking the injunction gave less than two days actual notice but the adverse party still showed up at the hearing, allowing that party to seek to dissolution later would be repetitive.
Mr. Boschee pointed out that after the provisional injunction section, the proposal continued with preliminary injunctions. He said that a preliminary injunction could not be granted with less than 14 days notice and, if granted, the preliminary injunction would be in place until trial. He said that the proposal provides for different briefing schedules depending on whether a provisional injunction is in place.
Mr. Boschee said that the proposal creates a new type of injunction, the "passing injunction." This would be used when a civil case has already been commenced and, at some point, there is a need for immediate relief on some point. He said "passing injunction" is a new term, but the type of proceeding it describes is alluded to in the current statutes.
Mr. Boschee said the proposal allows a person who is affected by an injunction, but not named as a party, to be heard at an interim injunction proceeding. The person would not need to formally intervene in order to be heard. A member asked what the unnamed would need to do to assert the right to be heard. Mr. Boschee said the party would need to show up at the hearing and demonstrate their interest in the matter.
Mr. Boschee said North Dakota practice was to require affidavits to support a request for an injunction and the proposal sets out how affidavits should be used. He said the proposal requires the party submitting affidavits to indicate which portions are based on personal knowledge and which are based on information and belief.
A member asked whether affiants would be cross-examined on affidavits at the hearing on the injunction. Mr. Boschee said any oral testimony is at the discretion of the court, but the court can decide the entire motion only on the affidavits. The member asked why recording the hearing is required under the proposal if cross-examination was at the court's discretion. Mr. Boschee said recording would ensure that the oral argument and representations made there were preserved.
Mr. Boschee said the proposal contained a provision designed to prevent "judge shopping" by not allowing a party to present an interim injunction motion to a second judge if it is rejected by a previous judge. A member asked whether the provision would prevent a party who presented a provision injunction request to the first available judge (and was rejected) from presented a preliminary injunction request to the judge formally assigned to the case after filing. The member also asked how the provision would work when the original judge rotated onto the criminal docket and was unavailable to further rule on the injunction matter. Mr. Boschee said that the proposal may need more input so that language can be drafted to make the judge shopping bar work.
Mr. Boschee said that the part of the proposal dealing with findings, contents and scope of an injunction was based on the federal rule. Referring to the proposal's requirement for findings when an injunction is denied, issued or modified, a member asked whether findings should also be required when an injunction is dissolved. Mr. Boschee said this was a good idea.
Mr. Boschee said the provision on "Persons Bound" was taken directly from the federal rule and was intended to bind parties and others who receive actual notice of an injunction.
Mr. Boschee said the provision on clarification was based on federal practice, but was not in the federal or any state rule. The provision allows people who are potentially subject to an injunction to apply to the court to clarify whether the injunction applies.
Mr. Boschee said the subcommittee spent a significant amount of time attempting to craft a workable security provision for the proposal. He said the current statutes allow the court to impose an undertaking and require that the undertaking be secured. He said the federal rules require security, although the court can use its discretion and decline to require security if this serves the interest of justice. Mr. Boschee said that the subcommittee decided to follow the federal approach in the proposal, requiring security unless good cause is shown otherwise.
Mr. Boschee said the subcommittee followed the trend of the majority of states in not requiring government entities to provide security.
Mr. Boschee said that the subcommittee had not encountered any rules that laid out a specific process for obtaining security. He said that what generally happens is that the court puts the injunction in place and instructs the party to obtain security in a reasonable time. A member said that courts have drafted orders indicating that the injunctive relief will not become effective until proof of security is received.
Mr. Boschee said that the proposal allows a variety of different forms of security to be used and does not limit security strictly to bonds. He said the proposal allows the adverse party to request additional security or a different form of security. He said the subcommittee stepped away from the federal rule in adding a provision to the proposal providing that the amount of security is not a cap on damages for a wrongfully enjoined party.
A member asked whether attorney fees could be recovered by a wrongfully enjoined party. Mr. Boschee said that the subcommittee had considered this issue but had not included it in the proposal.
A member asked whether it was difficult to obtain a surety bond for security. A member responded that surety bonds were difficult to obtain and very expensive. Mr. Boschee said this is why the subcommittee decided to allow other forms of security under the proposal.
Mr. Boschee said the last provision in the proposal was designed to spell out the statutes or rules not modified by the proposed amended Rule 65: employer/employee actions, family law matters, and disorderly conducts actions. Mr. Boschee said the amended rule would supersede statutes on injunction procedure but would not supersede the substantive injunction statutes that explain the circumstances when injunctions can be granted.
Mr. Boschee said the proposal would need adjustment before it was approved. He brought up the issue of whether a complaint seeking injunctive relief would need to be served before a motion for relief could be acted on. A member said that a proposed complaint, instead of the actual complaint, could be filed with the request for injunctive relief and then finalized and served after the initial request for relief was resolved.
The Chair suggested that the Committee take an initial look at the drafting issues
Mr. Boschee said the complaint reference on page 36, line 9, could be changed to "proposed complaint" to respond to concerns about service.
Mr. Boschee said the next drafting issued raised was whether the term "appropriate injunction grounds" on page 36, lines 19-20, should be moved to clarify that it applies to any relief granted under the rule. A member said that it would be reasonable to distribute the term throughout the rule, but that more discussion is needed to decide where it should be added.
Mr. Boschee said there was an issue how to define the term "reasonable efforts" on page 36, line 21. He said that it would take a considerable amount of work to write a definition of this term that everyone could agree on. A member asked what the difference was between making "reasonable efforts" and giving "reasonable notice." Mr. Boschee said the subcommittee thought that making reasonable efforts to give reasonable notice was one step removed from actually succeeding in giving reasonable notice-the party tried to give notice but did not succeed.
Mr. Boschee gave as an example calling a person in attempt to give notice, but not being able to reach the person or leave a message. He said that this could be considered a reasonable effort to give notice. On the other hand, if it was possible to leave a message, this act could constitute giving reasonable notice.
A member said that there were likely to be huge arguments over the "reasonable efforts" and "reasonable notice" terms because of the many modern tools available to find and get in touch with people. The member proposed that actual notice should be required because the Internet and other means make contacting people possible in almost all circumstances.
A member said that it was still difficult to prove actual notice even with improved technology. The member said that a message can be sent to a known email account, but there is no way to prove the recipient opened it and read it without an acknowledgment from the recipient. The member said sending the email could be considered reasonable notice even if actual notice could not be proven.
A member suggested that "reasonable notice" seemed to be a singular concept-sending one email to a known email address-while the term "reasonable efforts" seem to refer to multiple efforts to give notice through multiple means. A member said the
A member said that "reasonable efforts to give reasonable notice" was clearly something different and less than service under N.D.R.Civ.P. 4 or 5, a higher level of notice that is required before a preliminary injunction can be granted under the proposal. A member said that, as a practical matter, a party seeking a provisional injunction is subject to very short timelines and requiring "reasonable efforts to give reasonable notice" is an appropriate standard under these circumstances. The member added that the proposal also allows the adverse party to request dissolution of a provisional injunction in the absence of appropriate notice, so the adverse party is protected.
A member said the term "actual notice" also may be problematic because it was not clear from the language of the rule what constituted actual notice. Mr. Boschee said that parties could get guidance on this issue from U.S. Supreme Court and federal caselaw.
Mr. Boschee said the subcommittee found the concept of "reasonable efforts" in numerous injunction rules, in particular the rules of the District of Columbia, Maryland and Oklahoma.
Mr. Boschee said that a member had pointed out that on page 38, line 62, the reference should be to the moving party, not the adverse party. He also said that at page 39, line 67, the dash in provisional-injunction should be removed.
A member said that language could be added at page 39, line 78, to indicate that the party must file the complaint "at or before" the time the party moved for a preliminary injunction.
Mr. Boschee said that, given the Committee's concerns, the language on page 41, from lines 112-19, could be amended to make it clear that the court has the option to allow oral testimony at a provisional injunction hearing. A member suggested that the sentence on page 41,lines 112-14, be rewritten in the active voice.
A member said it appeared from the language of the proposal that affidavits would be submitted by both sides and that there would be no oral testimony unless the court decided it wanted to hear it. A member said there could be language added requiring the parties to produce affiants for cross-examination if the Committee thought that affidavits alone were inadequate. A member said the use of the word "testimony" in the provision should be replaced by "evidence" because testimony implies oral evidence.
A member said the level of evidence required for a provisional injunction was lower than the level of evidence that should be required for a preliminary injunction. The member suggested that oral testimony might be desirable for a provisional injunction. Mr. Boschee said that the proposal does not prevent the court from requesting oral testimony, but at the same time the proposal would not require oral testimony.
A member said the way the proposal was written implied that affidavits would be adequate to support a preliminary injunction. Mr. Boschee said that the authorities relied on by the subcommittee, including the Wright and Miller treatise, indicated that affidavit evidence was sufficient to support a preliminary injunction because these were of short duration, although not as short duration as a provisional injunction. At the same time, he said the proposal did not prevent a judge from seeking oral testimony if necessary. A member said there should be language in the proposal specifically stating that the court can allow or order oral testimony.
A member said that the proposal did not give enough instruction to parties or attorneys on whether or not affiants need to be available to testify at injunction hearings. A member said that without guidance in the rule, courts and parties could face the same problem as they do with N.D.R.Ct. 8.2 hearings-parties having to bring all their affiants to the hearing, yet the affiants not being called to testify. A member said that it would be better to make it clear that provisional injunction motions would be decided on affidavits alone.
A member said the proposal could be rewritten to presume that evidence would be presented by affidavit in provisional injunction cases and by oral testimony in preliminary injunction cases "unless the court orders otherwise." A member said this would put the burden on the court to decide what evidence it would receive.
A member said that courts accept evidence in interim order cases by affidavit only and it would be appropriate to extend the interim order standard to injunctions. A member said that injunctions are often requested in complex cases where the evidence required is the sort that would be difficult to present in an affidavit, such as expert testimony as to why a doctor should not have hospital privileges removed. The member said the court also needs to look at the sincerity of the people involved. A member replied that voluminous, complex affidavits were customarily submitted in interim order proceedings, sometimes including hundreds of pages of attachments.
Mr. Boschee said the federal rule allowed parties to seek temporary restraining orders based on a "verified complaint," which can be on information and belief. He said that the Wright and Miller treatise said a preliminary injunction decision in federal court can be based on affidavit evidence.
A member said it was dangerous to allow affidavit evidence to be based on information and belief instead of requiring personal knowledge. A member said that the proposal could be drafted to allow provisional injunction affidavits to be made on information and belief while preliminary injunction affidavits would require personal knowledge.
A member said the Supreme Court had taken a strong line on affidavits in domestic relations cases, requiring affidavits based on personal knowledge. A member said the only problem was that sometimes, when seeking a provisional injunction, parties would be under time constraints and might not be able to obtain an affidavit directly from an individual with personal knowledge.
A member said one type of injunction case in which it would be unlikely that a party would have personal knowledge is when an employee leaves a business and the former employer suspects the ex-employee is using inside information. A provisional injunction based on information and belief might be appropriate to stop possible damages, which a higher evidentiary standard could be required for a preliminary injunction.
A member said one factor that the Committee was not considering in its discussion of the proposal was that the proposal did not seem to provide a procedure to use when an interim injunction is necessary to head off an emergency, for example, the power company showing up on a weekend to cut down someone's trees. The court is not open for a complaint or motion to be filed, the judge is not in the courthouse to hear the motion, and the action that needs to be restrained could be described as "the general and ordinary business" of some actor.
The member said the temporary restraining order was intended to be a very short term
A member asked why it is necessary to enshrine the evidentiary standard for affidavits in a rule. A member said the important issue is whether the evidence presented satisfies the court that there is an immediate problem. The member said a provisional injunction is a short-term remedy that should be in place for days, not weeks. The member said it should be granted based on the court's discretion and followed quickly by a full hearing so that all sides are protected.
The Chair suggested that the Committee complete its work looking at minor language amendments before addressing the larger issues that members were beginning to raise.
Mr. Boschee said that the Committee had raised a concern about the language at page 42, lines 132-36, regarding no presentation to other judges. He said this section would likely require redrafting and rethinking.
Mr. Boschee said that a Committee member said that "dissolution" be added to the list at page 42, line 139. He said that an amendment could be made at page 42, line 140, to reference the adverse party's attorney. He said that on page 43, line 149, the word "apply" should be changed to "move."
Mr. Boschee said that the Committee had raised the issue about whether more specifics on the nuts and bolt procedure for obtaining security on an injunction should be spelled out in the rule. A member asked whether the reference to "subdivision" in the security provision at page 43, line 165, was meant to refer to a political subdivision. A member said political subdivision was a term of art and should be inserted into the provision.
A member said it was unlikely that a party seeking an injunction would bring their security when they made an initial motion, but the proposal requires security to be provided before an interim injunction can be granted. A member suggested that the language be changed to indicate that an interim injunction does not become effective until security is provided, thus eliminating the proposed prohibition to deciding an injunction without security. The member said this change would give the court the discretion to issue an
A member said that courts are following the method proposed currently. A member asked what would happen if an enjoined party incurred damage with no security in place. A member responded that the injunction would not be effective until the court ordered security was put in place, so the moving party would need to take action to put security in place. The member said that "posts" would be the best word to use to describe the giving of security.
Mr. Boschee said the only other issue raised by the Committee in discussing possible minor language changes was whether attorney's fees should be listed in the proposal among the damages a wrongfully enjoined party could recover. A member asked whether there was any law justifying recovery of attorney fees as damages in an injunction case. A member said courts do not award attorney fees as damages because they are not compensatory. The member said that attorney fees were not awarded unless specifically allowed by law, as in the case of frivolous actions and pleading violations.
A member said there was no law that allowed attorney fees in injunction cases. Mr. Boschee said that current statutes indicated that damages were allowed, but did not mention attorney fees. A member said the current North Dakota case law does not support attorney fees in injunction cases, although they are allowed in some other states. A member said that attorney fees are typically only allowed by law when there has been intentional wrongful conduct by a party, and given that an injunction cannot be granted without a judge agreeing that grounds exist for one, there is no justification for allowing attorney fees in an injunction case.
A member said that if a party misled the court about the grounds for an injunction, there could be a basis to seek attorney fees under the law. A member said it would be best not to include attorney fees in the rule as this would be a substantive change over current injunction practice.
Judge McLees MOVED to amend the proposal to incorporate the minor language changes discussed by the Committee. Judge Herauf seconded. The motion CARRIED.
The Chair asked if the Committee had further topics they wished to discuss or motions to make.
A member said that current practice is not to require a hearing on a temporary restraining order. The member said the judge reviews the motion and papers submitted and
A member said that it is fine to require a party to attempt to provide notice of a motion for an injunction. The member said the proposal also requires notice of the hearing's time and place, which means that a hearing must be scheduled. A member said the difference from current procedure is that now, a party seeking an interim injunction can find a judge and get an order signed while the proposal seems to require scheduling a hearing to be the first step, which means there will be a delay in having the motion for injunction heard simply because of the way the hearing and judge scheduling system works.
A member said that requiring a hearing essentially means that a party will not be able to get immediate relief through a provisional injunction but will have to move directly to seeking a preliminary injunction. A member said that there should be a mechanism that allows parties immediate access to the court in an emergency.
A member said the problem with not having a hearing was that it limits the options for the adverse party-if the adverse party gets notice of an injunction motion, but there is no hearing, how does the party make a meaningful response to the motion?
A member said that, for a short-lived provisional injunction, the adverse party does not necessarily need a full scale opportunity to respond. Giving the adverse party notice of the action the injunction seeker plans to take offers enough protection to the adverse party. The member said that the state's judges do not typically grant interim injunctions with unreasonable conditions. The member said that, at the provisional injunction stage, providing a usable emergency remedy is more important than giving the adverse party a full opportunity for a hearing.
A member said one good feature of the proposal is that it includes a procedure for the adverse party to request dissolution or modification of a provisional injunction without waiting for the preliminary injunction hearing. The member said that this provision provides significant protection for an adverse party that is not spelled out in current injunction procedure.
A member said that the proposal would allow a provisional injunction to stay in place for 28 days. A member said, in practice, judges who sign a provisional injunction expect a hearing to be set as soon as possible, certainly within a week. The member said the 21 to 28 day window contemplated by the rule is too long.
Judge McCullough MOVED to amend page 37, lines 37-38, to add "moving" before "party" on line 37 and to change "individual" to "sole proprietorship" on line 38. Mr. Dunn seconded.
A member asked why the state would be allowed to seek an injunction against the "general and ordinary" business of a business association when other parties were prohibited. A member replied that the current statute allows the state to take such action.
The motion CARRIED.
Judge McCullough MOVED to amend page 36, line 15, to replace "hearing's time and place" with "motion"; page 36, lines 19-20, to insert a colon after the word "finds", delete "in addition to appropriate injunction grounds", add a "(I)", continue with the existing language on line 20, and renumber with the word "either" after the new (ii). In addition, on page 37, delete lines 24-36 and renumber. Judge McLees seconded.
A member said that the proposed amendment's intent is to allow for a provisional injunction to be granted without a formal hearing. A member said that the motion would delete the requirement that there be appropriate injunction grounds. A member said that appropriate grounds should be required, but the requirement would be better if moved to another part of the rule.
By unanimous consent, the motion was amended to include "(I) appropriate injunction grounds" as the first sentence of the list beginning at page 36, line 20.
The motion CARRIED.
Mr. Hoy MOVED to amend page 36, lines 18-20, to change the title to read "Basis for Relief", to strike "If the moving party does not give reasonable notice", capitalize "the" to begin a new sentence, strike "still" and strike "but". Judge McCullough seconded.
A member asked what an adverse party would be able to do with the notice of motion
A member said, for example, that when the party seeking the injunction provided notice to the adverse party, the adverse party might react by objecting to the motion and asking to be heard. The adverse party may then seek out the judge to offer its position on the motion. A member said a judge would likely want to know from the moving party whether the adverse party was given actual notice and the adverse party's reaction to the motion.
The motion CARRIED.
A member asked how lawyers would react when contacted by a party seeking a provisional injunction. The consensus was that the lawyer would respond by telling the moving party they wanted to be heard and perhaps calling the court and requesting to be heard. The member said if the adverse party took these steps, it was unlikely a judge would simply sign an order without input from the adverse party, even though there is no formal hearing requirement in the proposal.
A member said the judge should have the option to delay entering an order until hearing all parties, but there should be no mandatory hearing requirement for a provisional injunction.
A member asked whether it should be necessary to file a proposed complaint before making a motion for a provisional injunction.
Mr. Hoy MOVED to amend page 36, lines 9-10, by deleting both lines. Ms. McLean seconded.
A member said it would be helpful for the court to see the proposed complaint as part of the process in deciding whether to grant a provisional injunction. A member responded that it was not possible to file a proposed complaint on a weekend or holiday. A member responded that the proposed complaint could be attached to the motion for injunction so that the judge will be able to see it. The member said having the proposed complaint filed is less important than providing the opportunity for the judge to see it.
A member said that sometimes time is important and there is no time to draft a
A member asked whether it would be necessary to file the motion and proposed complaint if it is rejected by the court. A member responded that it is important to retain a record of the matter regardless of whether the provisional injunction request was rejected.
The motion to eliminate the proposed complaint filing requirement FAILED on a 7-7 vote.
Mr. Hoy MOVED to amend page 36, lines 9-10, to read "If feasible, the moving party must present a proposed complaint at the time of seeking injunctive relief." Judge McLees seconded.
A member asked whether the proposed complaint would still be needed to seek injunctive relief, as required by the original proposal. A member said the existing language requires filing a complaint seeking injunctive relief before filing a motion for an injunction. The member said that this language did not prevent a judge from approving a motion if presented when the court was not open for filing and then filing the proposed complaint and the approved motion once the court opened.
A member said the motion language would allow a party to file a proposed complaint seeking damages and then move for an injunction. The member said the proposal should require submission of a proposed complaint for injunctive relief. By unanimous consent, the motion was amended to require submission of a complaint for injunctive relief.
A member said it is troubling that a motion and proposed complaint for injunctive relief could be presented and then not filed. The member said the rule should require filing, and preferably filed first before the court would be allowed to act. A member suggested that language be added requiring filing as soon as possible.
A member said that requiring filing before a motion for injunctive relief can be made, which is how the proposal was currently drafted, would foreclose the possibility of obtaining relief on a day when the courthouse was not open for filing. The member said it is important that injunctive relief paperwork be filed as soon as practicable. A member suggested that a provisional injunction could be made to expire if the paperwork is not filed within a given period.
Mr. Mack MOVED to amend page 36, lines 9-10, to provide "A motion seeking injunctive relief must be accompanied by a complaint and filed with the court at the earliest available date." Judge Herauf seconded.
A member said that a complaint cannot be filed unless it is served first. A member said that the "earliest possible date" would be sometime after the complaint is served. A member said the proposed language did not require that the complaint be served and filed before it was presented to the judge.
By unanimous consent, the motion was amended to add the word "proposed" before "complaint."
A member asked whether the language should require a complaint seeking injunctive relief.
By unanimous consent, the motion was amended to specify a "proposed complaint seeking injunctive relief."
By unanimous consent, the motion was amended to refer to a "motion seeking a provisional injunction."
By unanimous consent, the motion was amended to specifically require that both the motion and proposed complaint be filed at the earliest available date.
A member asked the meaning of the term "earliest available date." A member said if it was only a proposed complaint being filed, there would be no need to wait until it was served and everything could be filed "the next business day" or "within 48 hours." The member said it would be useful to put a specific limit on the filing time.
A member asked when the motion and proposed complaint would be served on the adverse party. A member said there was language on page 38 at lines 57-60 requiring service. A member asked how the amended rules on counting days worked with the "earliest available date" filing deadline.
By unanimous consent, the motion was amended to replace "earliest available date" with "promptly."
A member said specifying that the material be filed on the next business day would
Mr. Hoy MOVED to amend the motion to replace "promptly" with "the next day that is not a Saturday, Sunday or legal holiday." Judge McCullough seconded. Motion CARRIED.
By unanimous consent, the motion was amended to require that the material be filed "no later than" the "next day that is not a Saturday, Sunday or legal holiday."
The motion to amend page 36, lines 9-10, CARRIED.
A member raised an issue regarding the language at page 42, lines 132-36. The member said that the rule should not prevent a party from seeking a preliminary injunction if the matter is assigned to a different judge from the judge who denies a provisional injunction. The member said that being denied a provisional injunction should not prevent a party from seeking a preliminary injunction. A member said that the language of the proposal could be read to bar another judge from deciding a later injunction if a first judge has denied a provisional injunction. A member said the language needs to be modified to ensure that a party can seek a later interim injunction regardless of whether an original motion for a provisional injunction is denied.
The meeting recessed at 5:00 p.m. on January 27, 2011.
January 28, 2011 - Friday
The meeting was called to order at approximately 9:00 a.m. by Justice Mary Muehlen Maring, Chair.
RULE 65, N.D.R.Civ.P., INJUNCTIONS (PAGES 35-73 OF THE AGENDA MATERIAL)
The discussion of Rule 65 continued. Staff provided the Committee with a new working copy of the rule containing all the changes the Committee made on Jan. 27.
Judge McCullough MOVED to amend the proposal to renumber subdivision (a) of the proposal to reflect amendments made by the Committee. Judge Herauf seconded. Motion CARRIED.
Mr. Boschee MOVED to amend the title of subdivision (a), paragraph (2), to read "Notice." Mr. Mack seconded. Motion CARRIED.
A member questioned language at page 37, lines 37-40, allowing a court to issue an interim injunction against general and ordinary business operations "only after the notice of hearing required for a preliminary injunction." The member asked what this restriction was intended to accomplish. Mr. Boschee explained that the intent was to bar a party from obtaining a provisional injunction against general business operations and to require the higher preliminary injunction notice and hearing standards to apply to such an injunction.
A member asked whether this provision would prevent a party from obtaining a provisional injunction against a business even in an emergency situation. Mr. Boschee said the provision was based on the current statute, which has been in place for many years. He said the rationale was that a business should not be shut down except with notice and hearing. He said that a provisional injunction that did not shut down a business entirely could be granted under the proposed language.
A member said that keeping the proposed language might be problematic because it could be used to argue against granting any provisional injunction against a business. The member said that if a provisional injunction would shut down a business and cause harm to third parties, a judge should not grant it. The member said, however, that the judge should be allowed to balance the factors and decide whether or not to grant a provisional injunction against a business.
Mr. Mack MOVED to delete the language at page 37, lines 37-40, regarding business operations. Judge McCullough seconded.
A member said that if a business is performing a harmful activity, like dumping chemicals into a stream, it should be possible to obtain a provisional injunction to stop the activity quickly.
The Committee moved on to a discussion of the preliminary injunction hearing date provision. A member said that if a provisional injunction is issued, it should only be in effect for a short period of time. The member said that the effective period for a provisional
Mr. Boschee explained that the 21-28 day time period was put into the proposal to allow for a reasonable period of time for briefing. He said that most states probably follow the federal rule, which has a 14 day period that can be extended. He said an alternative to the time period in the proposal would be to implement the federal period and eliminate the proposed briefing schedule, which was designed to work with the 21-28 day window. He said that no other state had a briefing schedule as part of its injunction rule, although judges sometimes include a briefing schedule in their initial orders.
A member said it is likely that a party who wanted a preliminary injunction hearing sooner than 28 days would contact the court and seek to schedule an earlier hearing. The member said the parties and the court could then decide, which would be allowed under the proposal's "good cause" provision. The member said there was not any perfect number that should be inserted in the proposal instead of the current 21-28 day period.
The Committee moved on to the provision relating to motions to dissolve or modify a provisional injunction. A member asked whether the language allowing a party with less than two days actual notice to move to dissolve or modify an injunction was still necessary giving the changes the Committee made to the notice portion of the proposal. Mr. Boschee said the federal rule allows a party to move for dissolution or modification only if the party had no notice of the provisional injunction proceeding. He said this provision was added to the rule to encourage a party moving for a provisional injunction to give actual notice to the adverse party.
Judge McCullough MOVED to amend language on page 38, line 62, to read "If the adverse party actually received less than two days notice prior to issuance of the provisional injunction." Judge McLees seconded.
A member said the suggested language focuses on the notice the adverse party actually received rather than on what the moving party may or may not have done. A member said the two-day period seemed short especially given recent amendments to the counting rules that requires weekends and holidays to be counted when calculating any period.
A member asked whether "actually received" notice means the same as receiving "actual notice." A member replied that the proposed language puts the focus of any argument on the recipient of the notice and what notice the recipient "actually received."
A member asked what would happen if a party got three days notice. A member replied that the party could appear at the provisional injunction proceeding and state their position, but if a provisional injunction was then granted, they would have to wait until the preliminary injunction hearing to challenge the injunction. The member said the party could work with the court to get an early preliminary injunction hearing if there was good cause.
A member asked what would happen if a party got three days notice but could not find a lawyer before the provisional injunction proceeding. A member responded that the party could still appear at the provisional injunction proceeding, but if the injunction was granted, the party would have to wait until the preliminary injunction proceeding to challenge it. The member stated that under the federal rule, if a party gets notice an hour before a temporary restraining order proceeding, the party cannot seek to have the injunction vacated. The member said the proposal increases the amount of time for notice to be given and giving the adverse party a better chance to seek dissolution of the injunction if there is not adequate notice.
The motion CARRIED.
Mr. Mack MOVED to amend page 38, line 62-66, to refer to four days of notice rather than two. Judge McLees seconded.
A member said that making the change to four days will give the adverse party a better chance to be heard and represented at a provisional injunction proceeding.
The motion CARRIED.
A member asked what "as promptly as justice requires" meant in terms of time for scheduling a dissolution motion hearing. A member said that the language was taken from the federal rule and intended to indicate the importance of timely scheduling for these proceedings. Mr. Boschee said that the subcommittee did not use federal language requiring
Mr. Boschee MOVED to amend the language on page 39, lines 72-74, to replace the reference to "hearing" with "appears in opposition to the provisional-injunction." Judge Herauf seconded. Motion CARRIED.
The Committee moved on to a discussion of subdivision (b) on preliminary injunctions. A member asked about the use of "interim injunction" in referring to the "passing injunction" in paragraph (b)(3) of the proposal.
Judge McLees MOVED to change "interim" to "passing" on page 41, line 107. Mr. Quick seconded. Motion CARRIED.
A member asked about the purpose of subdivision (c) on unnamed parties. The member said that the provision could prompt a party opposed to an injunction to recruit others to appear at the proceeding. Mr. Boschee said the provision was taken from a Connecticut statute and was intended to allow a non-party who may be affected by a proposed interim injunction to come in and be heard on the injunction. He said it would be up to the judge to decide how much impact the non-party's objections would have on the proceeding.
The Committee moved to a discussion of affidavits and other evidence in interim injunction proceedings. A member said that allowing affidavits based on information and belief to be considered if preliminary injunction proceedings was a concern. The member said that with the preliminary injunction hearing not taking place for 21 days after the provisional injunction proceeding, it would be appropriate to require that preliminary injunction affidavits be based on personal knowledge.
Mr. Boschee said that the consensus of the Committee in the previous day's discussion seemed to favor allowing affidavits based on information and belief for the provisional injunction proceeding. He said that it should be within the court's discretion to weigh the affidavits for credibility, because at times it may be impossible for a party to obtain an affidavit based on personal knowledge when operating under time constraints.
Mr. Hoy MOVED to add "supporting or opposing a provisional injunction" after "affidavits" on page 41, line 114. Judge Herauf seconded. Motion CARRIED.
Mr. Boschee MOVED to redraft lines page 41, 112-14, to have (d)(1) apply only to
A member said that the proposed changes related to requiring personal knowledge affidavit evidence was too restrictive. The member said affidavits based on information and belief should be satisfactory for any interim injunction. The member said the judge will be able to evaluate the weight of the evidence depending on whether it is from personal knowledge or information and belief.
A member said the proposed redrafting to require affidavits based on personal knowledge would signal attorneys that they need to find solid evidence to support a preliminary injunction motion. A member said that there are circumstances where evidence based on information and belief should not be accepted.
The motion CARRIED.
Mr. Boschee MOVED to amend the language beginning on page 41, line 112, to read: "Unless the court directs otherwise, evidence on a motion for a provisional injunction, or a motion to dissolve or modify a provisional injunction, must be by affidavit." Judge McLees seconded. Motion CARRIED.
A member asked about the language allowing the court to permit additional affidavits to be filed at or after a preliminary injunction hearing. The member said that if the court decided to take a motion for preliminary injunction under advisement after a hearing, the language seemed to allow parties to continue sending affidavits to the court. A member said the provision required court permission before additional evidence could be sent.
A member asked about whether the language on oral testimony at a preliminary injunction hearing would limit a party from submitting affidavits. A member said the language allowed oral testimony but it did not preclude submission of evidence by affidavit. The member said that the provision allowed parties to submit affidavit testimony with their briefs even if they also planned to present oral testimony later.
The Committee moved on to a discussion of the provision barring presentation of an injunction motion to another judge after the motion was rejected by an initial judge. The Chair pointed out that, in districts where judges rotate between the civil and criminal dockets, an initial judge on a matter might be precluded from further acting on the matter if that judge rotates to another docket. The Chair also said the Committee's earlier discussion seemed to conclude that, while a party should not get a second bite at the apple on a provisional
Mr. Boschee said the subcommittee's review of other state injunction rules had shown that some, but not all, states have rules limiting parties from presenting an injunction motion to multiple judges. He said that addressing the concerns raised by the Committee about this provision would likely take a lot of work. He said the best solution was probably to remove the provision from the proposal.
Mr. Boschee MOVED to delete the language on page 42, lines 132-36. Judge McLees seconded.
Mr. Boschee said if the Committee supported some sort of provision to prevent presentation of injunction motions to multiple judges, work could be done on it in the interim between meetings. A member said that some sort of replacement language to stop judge shopping might be appropriate, particularly since a party who a preliminary decision went against could demand a change of judge under N.D.C.C. § 29-15-21 once the matter was filed.
A member said the idea of the provision was to prevent judge shopping. The member said that, instead of barring a second judge from considering a later injunction motion in a matter, the provision could put the burden on the party and require the party to certify that the motion had not been presented to a previous judge in substantially the same form. The later judge would then be aware of possible judge shopping.
Staff was directed to attempt to redraft the provision for review by the Committee at the next meeting.
The Committee moved on to a discussion of the section of the proposal relating to contents of an injunction.
Mr Boschee MOVED to amend the language beginning at page 42, line 147, to read: "If the court specifically finds that the adverse party did not receive four day's actual notice of a motion for a provisional injunction, the injunction must state that the adverse party may, under Rule 65(a)(7), move to dissolve or modify the injunction on four day's actual notice, or on shorter notice the court for good cause sets, to the party that obtained the injunction." Judge Kleven seconded. Motion CARRIED.
Mr. Boschee said that the subcommittee had discussed the notice issue and had decided to follow the federal rule in the "persons bound" provision. He said that there was federal case law to consult in interpreting the provision's terminology.
A member said that the provision was not very clear. The member asked whether serving the office of a party's attorney would be adequate to bind a party under the provision. Mr. Boschee said the proposal requires that a provisional injunction be served and that the persons bound provision applies to persons who may not have been served but received some other notice of the injunction. He said it was intended to broaden, not limit, the people who were bound.
A member said that the language of the provision needed to be revised to clarify that service bound the parties and other forms of notice could bind people other than the parties. The member said that service should be mentioned in the provision, possibly by including the following language "an injunction binds all those who receive actual notice and those served under N.D.R.Civ.P. 4 or 5."
A member said that such a change could exclude those who act in concert with the parties from being bound. The member said the proposed provision is intended to bind anyone who hears about the injunction, including a party who is going to be served but has not yet been served.
A member suggested that the following language could clarify who was bound: "an injunction binds all those with actual notice and parties properly served under either N.D.R.Civ.P. 4 or 5 as appropriate." The member said that the other categories of persons bound listed in the proposal could be retained.
Mr. Hoy MOVED to replace the language beginning at page 43, line 151, with "an injunction binds all those with actual notice of it and parties properly served under either N.D.R.Civ.P. 4 or 5 as appropriate." Mr. Dunn seconded.
A member said the proposed language would make it clear that an injunction would bind a party who had been served. A member asked whether the language means that a party would have to be served in order for the party to be bound-that the party would not be bound
By unanimous consent, the motion was amended to include a new first sentence "An injunction binds all those with actual notice" and a new concluding sentence "Parties properly served under N.D.R.Civ.P. 4 or 5 as appropriate are considered to have received actual notice."
A member said that the motion as amended could still be read to imply that parties need to have been served before they can be considered to have actual notice. A member said that if a party had been served, it would have actual notice, and there is no point to put language about such service into the rule. A member said that, perhaps instead of the language proposed, the last sentence could be amended to read "for parties, actual notice includes service under N.D.R.Civ.P. 4 or 5."
Mr. Boschee MOVED to amend the motion to delete the proposed concluding sentence and to include a new first sentence "An injunction binds parties who have actual notice or who have been served under N.D.R.Civ.P. 4 or 5 as appropriate, and all others with actual notice, including:" Judge Herauf seconded.
A member asked for the definition of "actual notice." A member said the term was used in the federal rule and there was federal case law on the term. A member said that the original draft of the provision was based on the federal rule and focused on "actual notice." A member said that trying to write references to service into the rule was creating confusion.
A member wondered how a party could be served and not have actual notice. A member said that a party could be served by mail to the party's attorney, and if the attorney was on vacation and did not open the mail, the party may not get "actual notice" until the attorney returns.
A member said that the motion on the floor could be read to require "actual notice" before the party's "officers, agents, servants employees and attorneys" would be bound, even if the party itself was bound because it had been served.
A member said that the approach taken by the federal rule seemed to be a simpler way to handle the issue.
The motion to amend the motion FAILED 6-7.
A member asked the Committee to return to consideration of the amended language on page 41, lines 117-19, on preliminary injunction evidence. The member said with the changes made by the Committee, the "default" position for receiving evidence on a preliminary injunction motion would be by live testimony at a hearing. The member wondered why, if this was the case, the provision should also allow submission of evidence by affidavit with the briefs. The member said submitting all testimony at the hearing, either by affidavit or live testimony, would make more sense. A member responded that the provision allowed the court to direct how testimony was received, so the court could require testimony by affidavit with the briefs.
The Chair asked the Committee whether the members had any direction for staff regarding the content of the explanatory note. Members said Mr. Boschee's memo could provide useful material for the explanatory note.
The motion to adopt the proposal as amended by the Committee CARRIED.
Staff was instructed to bring the proposal back to the Committee in April with an expanded explanatory note and any necessary housekeeping changes.
ORDER 19, N.D. Sup. Ct. Admin. Order, RETURN OF SCANNED DOCUMENTS; ORDER 19 ADDENDUM - DOCUMENT RETURN REQUEST FORM (PAGES 198-201 OF THE AGENDA MATERIAL)
Staff explained that the Odyssey Operations Group had requested that the Committee review a proposed administrative order and addendum relating to the return of scanned documents. Staff said the proposed order was an attempt to implement one of the principles of the new district court e-filing system: that-except in the case of wills-the courts will no longer retain paper documents in court files. Under the proposed order, parties may submit a form requesting that paper documents submitted for scanning or as a trial exhibit be returned. Otherwise, the documents will be destroyed.
A member said cases are filed where briefs and supporting materials are big enough to fill large binders. A member said one case was recently filed where there was a demand for change of judge followed by a recusal by another judge. Three weeks passed before the case reached the permanently assigned judge. During the period while the case was making its way to the assigned judge, all the paper filings were scanned and destroyed. The member said all the material then needed to be printed out for the assigned judge. The member said
The member said one problem is that there is no sitting trial judge who currently is using Odyssey on the Operations Group. The member said the Group did not have any idea of the problems trial judges were having trying to work with Odyssey. The member said some judges spend half their days doing clerical work necessitated by problems related to scanned and destroyed documents.
A member said that judges were trying hard to support Odyssey but that several months of experience working with the system revealed many problems. The member said that in one small claims case, the clerk had scanned in the claim affidavit but there were several pages of attachments with the affidavit that did not scan right because some of the attachments were on colored paper and the letters came out as black blobs. The member said that clerks were being instructed to not destroy any original exhibits to be used in a trial until the assigned judge specifically allowed them to do so. The member said that no original exhibits or original documents should be destroyed until the Supreme Court appeal period is done.
The member said that there are some documents that will scan fine and that do not need to be retained. The member, however, said there are some documents that will not scan properly, such as oversize maps or charts. The member said that these need to be retained.
The member wondered why there was such a great need to move quickly on establishing a rule requiring destruction of material submitted to the court.
The member said that there are many ridiculous things now being done in the courts under the existing scan and destroy policy. For example, an attorney will bring a document to the clerk that needs to be signed. The clerk will scan the document and send by email attachment to the judge to sign. The judge then needs to print out the document before it can be signed. The member said if the courts are trying to go paperless, such work flow is not logical and that issues like this need to be worked out before a large scale scan and destroy rule is implemented.
A member said there needs to be more judge input on Odyssey operations policies. Contrary to the report of some administrators, the member said there were serious problems with implementation of the system, including doubling the amount of clerical time judges are required to put in on a case. The member said in one district, administrators are making judges scan in all orders they sign. The member said this is a problem because the judges' scanners are not compatible with the clerks' input scanners. So, the judges scan the signed
A member said there needs to be a policy that allows parties and attorneys to request the return of filed documents, but there should not be a 5-day deadline for the destruction of documents submitted for filing. Instead, the documents should not be destroyed until the judge assigned to the case authorizes their destruction. The member said the assigned judge needs to have input as to what documents are destroyed and when they are destroyed.
The member said that in some cases, it is necessary for the judge to see the original documents in order to find the facts. The member said in one case, a plaintiff relied on a document she claimed proved she made a deposit on a given day to a bank. The bank denied she made the deposit and said the document the plaintiff relied on was an altered copy, not an original. Only by physical examination of the claimed original was the court able to determine that it was actually a copy. The member said cases like this are reasons why decisions on the destruction of original documents need to be made on a case-by-case basis.
A member asked why there was a need to adopt a rule immediately. A member replied that the rule for the most part was acceptable; it was the five day document destruction deadline that was the problem.
A member said there is disagreement between judges and administrators as to the process for handling documents. The member said the administrators claim that judges should not be involved with making decisions about how documents submitted for filing should be handled. The member said there are some situations where a document or exhibit-such as an aerial photograph, a topographical map, or a lengthy transcript-should not be destroyed until a judge specifically approves it.
A member said that parties should be allowed at least seven days after trial to request the return of an exhibit submitted at trial. A member said it would be preferable for exhibits to be preserved until the end of the time for appeal. A member said that there were many exhibits submitted at trial that had not been previously scanned and many contained vital information to the case, such as property and debt listings submitted at divorce trials.
A member said that the Odyssey system or the scan and destroy procedure is saving money seemed inaccurate. The member said that paper consumption had increased greatly since Odyssey came on line due to the need to print out scanned documents. The member said that the Odyssey document display system did not allow judges to mark, highlight or make notes on documents on screen. Instead, the documents need to be printed out for this to be done.
A member said if the Odyssey group would have a sitting trial judge who actually has to use the Odyssey system, some of the problems now being experienced by judges could be corrected. The member said the best system would be to have a trial judge from an urban area and a trial judge from a rural area, since the different areas present different problems.
The meeting adjourned at approximately noon on January 28, 2011.
Michael J. Hagburg