MINUTES OF MEETING
Joint Procedure Committee
January 26-27, 2012
TABLE OF CONTENTS
Rule 5.1, N.D.R.Ct., Interstate Depositions and Discovery 3
Rule 41, N.D. Sup. Ct. Admin. R., Access to Court
Records 7
Rule 24, N.D.R.App.P., Supp. Brief of
Indigent Defendant; Rule 32, N.D.R.App.P, Form of
Briefs, Appendices and Other Papers; Rule 40, N.D.R.App.P., Petition for
Rehearing 8
Rule 58, N.D.R.Civ.P., Entry and Notice of Entry of Judgment; Rule 77, N.D.R.Civ.P.,
District Courts and Clerks
9
Rule 8, N.D.R.Civ.P., General Rules of Pleading 12
Rule 4, N.D.R.Civ.P., Persons Subject to Jurisdiction; Process; Service 12
Rule 5, N.D.R.Civ.P., Service and Filing of Pleadings and Other Papers 13
Rule 3.1, N.D.R.Ct.,
Pleadings 16
Rule 26, N.D.R.Civ.P., General Provisions
Governing Discovery
17
Rule 46, N.D.R.Crim.P.,
Release from Custody 19
Rule 3.1, N.D.R.Ct.,
Pleadings 20
Rule 33, N.D.R.Civ.P., Interrogatories to
Parties
20
Rule 4.1, N.D.R.Crim.P., Complaint,
Warrant, or Summons by Telephone or Other Reliable
Electronic Means
22
Rule 3, N.D.R.Crim.P., The
Complaint 25
Rule 4, N.D.R.Crim.P., Arrest Warrant or
Summons upon Complaint
26
Rule 9, N.D.R.Crim.P., Warrant or
Summons upon Indictment or Information 26
Rule 41, N.D.R.Crim.P., Search and
Seizure 26
Rule 9, N.D.R.Crim.P., Warrant or
Summons upon Indictment or Information 27
Form and Style Amendments to the
N.D.R.Ev. 27
Rule 102, N.D.R.Ev., Purpose and
Construction 28
Rule 103, N.D.R.Ev., Rulings on
Evidence 28
Rule 104, N.D.R.Ev., Preliminary
Questions 30
Rule 105, N.D.R.Ev., Limited
Admissibility 31
Rule 106, N.D.R.Ev., Remainder of or
Related Writings or Recorded Statements 31
Rule 201, N.D.R.Ev., Judicial Notice of
Adjudicative Facts 31
CALL TO ORDER
The meeting was called to order at 9:00 a.m., on January 26, 2012, by the Chair, Justice Mary Muehlen Maring.
-1-
Present:
Justice Mary Muehlen Maring,
Chair
Honorable John
Greenwood
Honorable Debbie Kleven
Honorable Steven L.
Marquart
Honorable Steven
McCullough
Honorable William
McLees
Honorable Thomas E.
Merrick
Honorable David E. Reich
Mr. Larry L. Boschee
Mr. Daniel Dunn
Mr. Robert Hoy
Mr. Richard H. McGee
Assistant Dean Jeanne L.
McLean
Mr. Lonnie Olson
Ms. Joanne Hager Ottmar
Mr. Bruce D. Quick (Friday only)
Mr. Kent Reierson
Absent:
Honorable Laurie Fontaine
Honorable William A.
Herauf
Mr. Bradley
Beehler
Staff:
Mike Hagburg
Kim Hoge
PRELIMINARY MATTERS
The Chair welcomed new members, Judge Merrick and Mr. Olson. The Chair announced that this would be the last meeting for Asst. Dean Jeanne McLean.
APPROVAL OF MINUTES
Judge Reich MOVED to approve the minutes. Ms. McLean seconded. A member pointed out a typographical error on page 8, which was corrected with unanimous consent
-2-
RULE 5.1, N.D.R.Ct., INTERSTATE DEPOSITIONS AND DISCOVERY (PAGES 59-87 OF THE AGENDA MATERIAL)
Staff explained that the Committee had discussed the new Uniform Interstate Deposition and Discovery Act at the April 2011 meeting and recommended that it be adopted as a new rule of court. After further discussion at the September 2011 meeting, the Committee recommended that cross-references to the proposed new rule be added to N.D.R.Civ.P. 45, N.D.R.Crim.P. 17 and N.D.R.Juv.P. 13. Staff presented the proposed amendments for consideration and informed the Committee that Mr. Eric Fish of the Uniform Laws Commission would be available by teleconference to answer any questions the Committee still had about the Act.
The Chair asked whether any members had questions they wanted to pose to Mr. Fish about the uniform act. The Chair suggested that the Committee hold a preliminary discussion to figure out what the Committee might wish to learn from Mr. Fish.
A member said that Mr. Fish had indicated in his written comments on the issues raised at the September meeting that the act was designed to cover civil, not criminal, practice. The member noted that the draft amendments applied the act to the civil, criminal and juvenile rules. The member said the Committee should discuss whether the act should apply to the different rules.
Staff said that research had been presented at the September meeting indicating that about half of the states that had adopted the act had adopted it specifically as part of their civil rules.
A member asked how a subpoena issued by the clerk under the act would be served. A member replied that it would be served like a subpoena currently is under the rules. The member said the proposed rule changed two things: first, instead of filing a deposition notice to get a subpoena, the party would file a subpoena from another state; second, the rule says this act of filing the out-of-state subpoena is not an appearance in North Dakota. These are the main changes from the current practice.
A member said that we have a provision in our civil rule dealing with subpoenas in out-of-state cases. The member said that the proposal would remove this mechanism from our civil rule and replace it with the Uniform Act in the Rules of Court. The member said this seemed to be a dubious strategy if the rule is intended only to be used in civil actions. The member said the act should be made part of the civil rules if it is going to be used only in
-3-
Staff informed the Committee that the Court had included some language from the uniform act when it adopted amendments to Rule 45. Staff said the existing language in Rule 45 was specifically drafted by the Committee and was not modeled on another state's rule or a uniform law.
A member asked whether anyone has claimed that the existing Rule 45 mechanism for issuing subpoenas in out-of-state cases does not work. A member replied that the Rule 45 mechanism works just fine. The member said that the reason to adopt the uniform rule would be to have uniformity with other states, like the Uniform Commercial Code.
A member said under the current rule coming to North Dakota to get a subpoena would constitute an appearance and a local lawyer would have to be enlisted to help in the process, which would be an added cost. A North Dakota lawyer going to another state would face the same costs, except in states where the uniform act is in force.
The Chair asked if there is no appearance, who would have jurisdiction if there was an ethical violation in connection with a subpoena issued under the uniform act? A member said that the home state where the case was pending would seem to have jurisdiction. The member said if an attorney needed to take a step such as filing a motion related to the subpoena, that would constitute an appearance in this state and local counsel would need to be involved.
A member asked whether there was a consensus that the Committee wanted to go forward with a rule based on the uniform act. The Chair reminded the Committee that it had approved the rule in April 2011.
The Chair asked what is currently done in criminal matters. A member said it was rare to do a deposition in a criminal case. A member said one of the advantages of making the proposed rule applicable to civil, criminal and juvenile cases was that all matters would be treated the same and there would be no need to wonder about the correct procedure in the rare criminal or juvenile deposition.
A member said that if the Committee decided that the proposal should be adopted only for civil cases, then the only significant change from current procedure would be that the request for a subpoena would not be an appearance. The member said that it would not be worthwhile adopting the proposal only to make this change, especially given the questions about ethics jurisdiction if there is no appearance.
-4-
The Chair asked Mr. Fish to explain why the act was not intended for criminal actions. Mr. Fish said that the group that developed the uniform act was instructed to develop a procedure for civil cases so the group did not discuss whether the act should be applied to criminal actions. He said there was nothing in the act the was not compatible with a criminal action, but the act was not designed for criminal actions.
The Chair asked about language in the act that said requesting subpoenas under the act was not an appearance in the state. The Chair asked which state would have jurisdiction to discipline a lawyer who behaved unethically in connection with a subpoena issued under the act. Mr. Fish said the intent was that the state where the action was taking place, and where the attorney was a member of the bar, would have jurisdiction over any inquiry into unethical conduct related to a subpoena obtained under the act.
The Chair asked whether it would be considered an appearance if the out-of-state attorney attempted to enforce a subpoena issued in North Dakota under the uniform act. Mr. Fish said it would be considered an appearance if the attorney took action directly related to service of the subpoena in North Dakota such as responding to an attempt to modify or quash.
The Chair confirmed the attorney would then have to be admitted pro hac vice or find local counsel if the attorney made an appearance in connection with the uniform act subpoena.
A member asked whether, if the request for a subpoena is not an appearance, conducting an examination under the subpoena would also not be an appearance. Mr. Fish said this would not be an appearance; an appearance would not take place without another step to enforce or modify the subpoena.
A member asked whether a complaint based on unethical conduct at the subpoena deposition would then have to be brought in the attorney's home state. Mr. Fish said it would have to be brought in the home state since taking a deposition under the subpoena was not an appearance.
The Chair asked whether the purpose of the act was to create uniformity across the states. Mr. Fish said the purpose of the act was to allow subpoenas of out-of-state witnesses with a minimal amount of judicial intervention. He said there was a hodgepodge of laws across the country and uncertainty among attorneys about what procedure should be followed in a given state. He said that uniformity was an important purpose of the act and also to
-5-
Mr. Fish said close to 30 states have currently adopted the act. He said many states and courts saw the benefit of having a simple and uniform procedure across the country. He said 22 states had adopted the act and that several others were considering it, including South Dakota and Iowa.
The chair asked whether the states that had adopted the uniform act had been making significant modifications. Mr. Fish said that the states had generally been adopting the act as is, making minor modifications to work with existing law. Mr. Fish said that most states have made the act applicable to civil actions either by making it part of their civil rules or by specifications in statute.
The Chair thanked Mr. Fish for his assistance.
A member said that having a uniform rule that could be applied in civil, criminal and juvenile cases was a good idea. The member said that the troubling part of the proposal was that someone from out-of-state could come and conduct a deposition or require the production of records without being subject to North Dakota ethics jurisdiction.
A member said that making obtaining a subpoena a non-appearance is one thing, but allowing an attorney to come to the state, perhaps spending days conducting a deposition of a non-represented witness, and not calling this an appearance was something else. The member said the worst part was if the attorney engaged in unethical behavior during the deposition, the non-represented witness would have to somehow figure out that any complaints would need to be directed to an out-of-state disciplinary body.
A member said that attorneys in civil practice regularly come to North Dakota to take depositions while North Dakota attorneys travel to other states. The member said the proposed rule reflected ordinary deposition practice and would not be a change. A member said a deponent with a complaint could contact the State Bar Association of North Dakota, which would refer the deponent to the proper authorities.
A member said subpoenas are not generally needed when an attorney wants to depose a North Dakota resident in an out-of-state action. The member said everything is typically taken care of by agreement and that problems are rare.
A member said that if lawyers are involved on both sides in the deposition they may be able to resolve problems among themselves. The member said, however, that if a non-represented witness is treated unethically in a deposition, it is troubling that the witness
-6-
A member said that it is very easy to get a subpoena to conduct an out-of-state deposition in federal court, the attorney simply asks for one.
The Chair asked staff to go over the proposed amendments to N.D.R.Civ.P. 45, N.D.R.Crim.P. 17 and N.D.R.Juv.P. 13. Staff explained that Rule 45 currently contains the mechanism for a party to seek a subpoena in an out-of-state action. Staff said that, under the proposed amendments, this mechanism would be deleted from Rule 45 and replaced with a cross reference to new Rule 5.1. Staff said that similar cross-references were proposed for the criminal and juvenile rules, making the Rule 5.1 procedure applicable to civil, criminal and juvenile actions.
Mr. Boschee MOVED to adopt the proposed amendments to N.D.R.Civ.P. 45, N.D.R.Crim.P. 17 and N.D.R.Juv.P. 13. Judge McLees seconded.
A member said North Dakota would be unique by making the uniform act applicable to civil, criminal and juvenile matters. A member said that having it apply to criminal matters would not be a problem because it was a good idea to have a consistent procedure that applied to deposition subpoenas.
The main motion CARRIED. The rule proposal will be sent to the Supreme Court as part of the Annual Rules Package.
RULE 41, N.D. Sup. Ct. Admin. R., ACCESS TO COURT RECORDS (PAGES 29-46 OF THE AGENDA MATERIAL)
Staff explained that the Court considered the Committee's proposed amendments to Rule 41 along with comments it received on the proposal and approved amendments that differed from the Committee's proposal. Staff asked the Committee whether it wanted a form motion and order developed to be used with the amendments as approved by the Court.
A member said it would be difficult to draft a form motion for a balancing test. A member said that the judge will have to do a balancing test and so a form order would be very difficult to devise. The member said a fill in the blanks form motion that provided the information the judge needed to do the balancing test might be possible.
A member said the form motion would have to contain blanks that reflected all the
-7-
A member said what the Committee sent to the Court was a request to make it easier to restrict Internet access to certain types of criminal case information. The member said the Court then changed the language, making it possible to restrict access to the information only after application of the existing balancing test. The member said it seemed less likely that requests to restrict access would arise given the restrictive test the Court imposed.
A member questioned whether a motion to restrict access under the provision could be an ex parte motion. A member said the rule requires notice to be given. A member said the procedure under the rule is not necessarily being followed.
A member said the change was proposed because of the real problems people with dismissed charges or acquittals face in not being able to find housing or jobs because of the way criminal records are presented on the Internet. The member said that it may ultimately be a legislative issue: the statutes now require that agencies report all arrests, acquittals, and convictions to the BCI. The member said people should be required to go to the BCI for these records. The member said some law enforcement agencies apparently are selling incomplete criminal record information, i.e., arrest information with no information on charges or disposition. The member said that the legislature should act to stop the sale of this incomplete information, which is harmful to people who may be arrested but who are not charged or who are exonerated.
A member said that the information in court records is far more thorough than the BCI records, which are all fingerprint driven. Another member said that the BCI records are not updated as accurately as court records.
The Committee agreed that putting a form motion together would be difficult. Members said that litigants would need to submit the motion and provide notice, so a notice of motion form would also be required. A member said an affidavit of service would also be required. A member suggested that the small claims package of forms could be a model of the types of forms required.
By consensus, the Committee decided that staff should attempt to put together a set of draft forms for making a Rule 41 motion. Staff will present the drafts at the April meeting.
RULE 24, N.D.R.App.P., SUPPLEMENTAL BRIEF OF INDIGENT DEFENDANT; RULE 32, N.D.R.App.P, FORM OF BRIEFS, APPENDICES AND OTHER PAPERS; RULE 40, N.D.R.App.P., PETITION FOR REHEARING (PAGES 47-58 OF THE AGENDA
-8-
Staff explained that the Committee considered the Supreme Court's suggestion that page and word limits be reduced for appellate briefs at its April and September 2011 meetings. Staff said the Committee approved the proposed amendments at the September meeting by less than a two-third majority. Therefore, the proposal was back before the Committee for further consideration if desired.
Mr. Boschee MOVED to rescind approval of Rules 24, 32 and Rule 40. Ms. Ottmar seconded. Motion FAILED on 6-9 vote. The rule proposals will be sent to the Supreme Court as part of the Annual Rules Package.
RULE 58, N.D.R.Civ.P., ENTRY AND NOTICE OF ENTRY OF JUDGMENT; RULE 77, N.D.R.Civ.P., DISTRICT COURTS AND CLERKS (PAGES 128-149 OF THE AGENDA MATERIAL)
Staff explained that the Committee discussed Rule 58's requirements related to notice of entry of judgment and Unit 2's new policy reducing the clerk's role in giving notice of entry of orders to attorneys and parties at the September meeting. The Committee instructed staff to research notice of entry policy across the state and to make inquiries with the Court Technology Committee regarding electronic filing of notice of entry of judgment documents and possibly providing notice of entry by email. Staff provided the Committee with proposed amendments to Rule 58 and Rule 77 that would make court clerks responsible for sending out notice of entry.
Ms. Ottmar MOVED to adopt the proposed amendments. Judge Kleven seconded.
A member wondered why filing of the judgment with the Notice of Entry of Judgment was an issue. The member said it was common practice to serve a copy of the judgment with the Notice and an Affidavit of Service but it was not necessary to then file the copy judgment with the Notice and Affidavit. A member said that unless the copy judgment that was served was also filed, there would be uncertainty about what was in the judgment that was served. A member replied that if the Notice and Affidavit referred to the judgment on file with the court and indicated that a copy of that judgment was served, filing of the copy judgment should not be necessary.
A member asked whether the electronic docket entry for a Notice of Entry of Judgment filed with a copy judgment labeled as "exhibit 1" could simply read "Notice of Entry of Judgment with Exhibit 1," with the whole package scanned together. A member said the problem with this approach was that the clerks have been directed to file attachments
-9-
A member said the clerks are concerned that, if there are multiple versions of the judgment on file, even if the second version is labeled "exhibit 1" or "copy judgment," that there will be confusion about the date the judgment was filed. A member said that if the copy judgment is properly labeled when it is filed there will be no confusion--the clerk simply needs to identify what the attachment is.
A member said filing of copy judgments is a minor issue compared to the major problem of lawyers and parties not getting notice of orders being entered. The member said there is no consistent policy among the clerks--one clerk will send out notice, another will not. The member said sometimes it takes judges a long time to issue orders, so if the clerk is not sending out notice, the lawyer or party will need to check with the court daily for a couple of months to confirm whether the order has been entered. The member said the proposed amendment to Rule 77 corrects the problem of inconsistent policy and having to check back for orders--if an order is issued, the clerk will send notice.
A member said sending out notice should be a simple matter with the Odyssey system. A member replied sending out notice was not simple if the lawyer or party is not connected to Odyssey. The member said the clerks deal with many self-represented litigants who are not on Odyssey. If the clerks are required to send out notice of orders to everyone, this will increase their workload and create staffing issues.
A member said that Minnesota clerks have been sending out notice of orders for years. A member replied that Minnesota has more court staff. A member said to simplify matters clerks could just mail out a simple notice that an order had been entered and provide the docket number to the self-represented litigant--it would not be necessary to mail out the order.
A member said it would be simplest to leave the rules as they are. The member said attorneys can continue to file copy judgments with the notice of entry because this is allowed by the rule. A member answered that some clerks do not accept copy judgments and even throw them away. A member replied that the clerks are required to follow the rules and how the clerks handle copy judgments is a training issue with the clerks' office.
A member said the main issue is not being able to timely find out when an order is entered. The member said sometimes it is weeks before attorneys find out that orders are
-10-
A member asked what kind of orders do attorneys not get notice of. A member replied orders on motions, for example. A member responded that in Unit 2, if there is a hearing on a motion and a judge has to make a decision and enter an order, the judge's secretary sends out a copy of the order to the parties. The member said it was surprising if this policy was not being followed across the state on judge issued orders--if a judge does a memorandum opinion, it should go immediately to the parties.
Members said that the practice varies across the state and orders do not necessarily get sent to attorneys. A member said it can be weeks before an attorney hears back on whether an order submitted for a judge's signature got signed.
A member said that the Committee needed a report from the Court Technology Committee on whether it is possible for notices to be sent out through the Odyssey system. A member said the best solution to the problem of giving notice of orders entered would be using an automatic electronic system that sends out notice.
A member said the federal court system was effective and maybe attorneys had become conditioned to that level of service. The member said attorneys used to working with the federal system were simply baffled that it is not possible to get notice through the state system. The member said that providing notice seems like a basic and fundamental capability that an electronic filing system should have.
A member said that providing notice must be a function that can be provided through Odyssey. The member is involved with a case in McLean County and is getting notice through Odyssey every time anything is filed in the case. A member said that this notice is initiated by the clerk, not automatically. A member asked why it was not possible for clerks to push a button and provide this kind of notice in every case.
A member said that, on the notice issue, addresses were a real problem. The member said that pro se litigants often provide multiple or uncertain addresses to the court. The member said the clerks were also concerned about having a rule that placed a duty to provide
-11-
A member said it was important to get an answer from the Court Technology Committee on Odyssey's capabilities to address the notice issue.
Judge McCullough MOVED to table the rule amendment proposal. Ms. Ottmar seconded.
A member said the Committee should pass the proposal rather than tabling it to show the court administration and the clerks that the Committee is serious about having notice provided to parties and attorneys. A member said that court policy should not be set according to Odyssey's capabilities.
The motion to table CARRIED on an 8-7 vote.
RULE 8, N.D.R.Civ.P., GENERAL RULES OF PLEADING (PAGES 150-156 OF THE AGENDA MATERIAL)
Staff explained that Committee member Mr. Larry Boschee had pointed out that subdivision (d) of Rule 8 contains an internal cross-reference and otherwise lacks content. Mr. Boschee proposed the rule could be amended to eliminate the empty subdivision.
Judge Marquart MOVED to adopt the proposal. Judge Reich seconded. Motion CARRIED.
RULE 4, N.D.R.Civ.P., PERSONS SUBJECT TO JURISDICTION; PROCESS; SERVICE (PAGES 157-176 OF THE AGENDA MATERIAL)
Staff explained that the Supreme Court requested that the Committee discuss adding a sentence to Rule 4's explanatory note indicating that "the time of service for an item served by mail or third-party commercial carrier under Rule 4(d) is the time the item is delivered to or refused by the recipient." Staff also presented a proposed amendment that would transfer language on demanding a party to file the complaint to Rule 5.
Judge Kleven MOVED to adopt the proposal. Judge McCullough seconded.
A member suggested that the proposed language be placed in the text of the rule in addition to the explanatory note. The member said other states have rules that sort out all the possible results that can happen when a party attempts to serve by mail and set out when service is effective.
-12-
A member said it is problematic to develop rule language because most questions about when service was effective are factual questions. The member said different commercial carriers use different documentation and different delivery procedures. The member said that rule language could not be developed without taking the different procedures into account.
A member said that there are rules from other states and federal rule proposals that could be used as a model for a more specific rule defining when service is effective. A member said Rule 4(l) was quite specific about the effect of delivery refusal. A member suggested that the proposed new explanatory note language could possibly be added to Rule 4(l) to make the rule language more specific.
Mr. Boschee MOVED to amend Rule 4 at page 173, line 297, to add the language "The time of refusal is the time of service." Mr. Reierson seconded.
A member suggested that the motion language be rephrased to put the emphasis on service. A member suggested that "date" should be used rather than "time."
By unanimous consent, the motion language was amended to read: "Service is complete on the date of refusal."
Motion CARRIED.
A member asked if there was an inconsistency between the language at page 172, line 294, "mailed or sent with delivery restricted and requiring a receipt signed by the addressee" with other language in the rule referencing sending by "third party commercial carrier." Members responded that language on page 173, line 295, referred to "mail or delivery" refusal, which seemed to embrace attempted delivery by "third party commercial carrier."
The main motion CARRIED. The rule proposal will be sent to the Supreme Court as part of the Annual Rules Package.
RULE 5, N.D.R.Civ.P., SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS
-13-
Staff explained that the Supreme Court requested that the Committee discuss proposed changes to Rule 5 that would require a party seeking to file a summons and complaint or other initiating pleading to also provide proof of service under Rule 4 that would be filed at the same time. Staff also presented a proposed amendment that would transfer language on demanding a party to file the complaint from Rule 4.
Judge McLees MOVED to adopt the proposed amendments to Rule 5. Judge McCullough seconded.
A member asked how a party could seek a temporary restraining order under Rule 65 if they were prevented by the new language in Rule 5 from filing a complaint without also providing proof of service. The Chair said that there was a procedure set out in the revised Rule 65 that allowed parties to file a copy of the complaint as part of the procedure for seeking injunctive relief.
A member said certain statutory actions, like claim and delivery, require a party to get a court order before the complaint is served. A member said this would be a problem under the proposed rule only if the complaint had to be filed at the time the court order is requested. A member said in a claim and delivery action an affidavit must be filed and then a court order is issued, which order is then served with the summons.
A member said a person had been trying to get a North Dakota complaint served in another state. The out-of-state sheriff refused to serve the complaint without a file number. The member said the person would not be able to get a file number under the proposed rule because service would not be complete. A member said that the person could find a commercial process server or a private party to serve the complaint if the sheriff refused.
The Chair said it has always been the rule that a complaint or other initiating document needed to be served before a file could be opened and further action could take place in the matter. A civil action is not commenced until service is made. Unfortunately, the rule against opening a file in a matter that has not been commenced has not been followed consistently.
A member said that eviction actions normally are filed before service so that a hearing date can be obtained. The summons and complaint are then served with the hearing date inserted.
A member said there was recently a rash of complaints filed by an inmate suing many
-14-
Mr. McGee MOVED to amend at page 181, line 62, to add the language "Absent prior approval by the court." Ms. McLean seconded.
A member asked how someone seeking court approval to file would get access to the court. A member said the clerk could simply bring the request to a judge without filing the matter. The member, however, said that while an exception to the service requirement was appropriate, the proposed language would give the court unfettered discretion on whether to allow filing before service. The member said it might be better to have an exception that allowed filing without service if filing was allowed by law.
A member said that when bringing a petition under the Uniform Child Custody Jurisdiction Act, it is often necessary to get an emergency order before filing a petition. A member said if the motion was changed to provide an "allowed by law" exception, there would be no obstacle to getting an emergency order before filing.
A member said an "allowed by law" exception might be better than a judicial approval exception because this would limit questions about a judge's exercise of discretion. A member said such an exception would also put the burden on the party to identify a law that authorized filing before service.
A member asked whether the clerk would be required to make a legal decision about whether filing before service in a given case was authorized by law. A member said that the clerk could simply refuse to file absent authorization by a judge to file. A member said eventually the clerk's manual could be supplemented with material on the clear cases where filing before service are authorized, such as eviction.
Judge Greenwood MOVED to amend the motion to substitute the language "Unless otherwise authorized by rule or statute." Judge McCullough seconded.
A member said that the clerk's office is a gatekeeper on what documents are filed, and the proposed language would require the clerk to make a legal decision on whether filing is allowed before service in a given case. A member said that clerks could consult with a judge. A member asked whether this would be possible in a rural county. A member responded that
-15-
A member said if lawyers or parties consult the rule before attempting to file a document, they will know that they either need to serve the document first or be prepared to show why the law allows the document to be filed prior to service.
A member said while the language of the proposal seems to give the clerks the responsibility to decide whether a law allows filing before service, as a practical matter they will seek advice from a judge before filing. A member said in places where there is an established practice that allows filing of certain actions, such as evictions, prior to service the judges may advise the clerks to go ahead in filing these cases without further consultation with a judge.
The motion to amend CARRIED. The motion as amended CARRIED.
Staff was instructed to reference the amended language in the explanatory note.
The main motion CARRIED. The rule proposal will be sent to the Supreme Court as part of the Annual Rules Package.
RULE 3.1, N.D.R.Ct., PLEADINGS (PAGES 188-198 OF THE AGENDA MATERIAL)
Staff explained that amendments to Rule 3.1 had been developed to supplement the previously discussed amendments to N.D.R.Civ.P. 5. The amendments would eliminate the requirement to "attach" proof of service and make it clear that a document that does not meet all of the rule requirements cannot be filed. In addition, Mr. Brad Beehler, SBAND's representative to the Committee, requested that the Committee address superseding the N.D.C.C. § 29-15-21 requirement that demands for a change of judge be submitted in triplicate.
Judge McCullough MOVED to adopt the proposed amendments. Judge Kleven seconded.
By unanimous consent the word "instrument" at page 191, line 32, was replaced by "document."
A member said that even if the proposed amendment to the rule were adopted, people looking at the change of judge statute would still find the word "triplicate" and would still send in their demands in triplicate. Staff said that when the Court approves a rule change that supersedes a procedural statute, the Court informs the Legislative Council and the statute is
-16-
A member said that criminal defendants send in motions for reduction of sentence all the time. The member said that these motions are never served on the state's attorney. The member said the court typically sends a copy of the motion to the state's attorney. A member said that at times these reduction of sentences motions are so clearly baseless that the court will examine the motion and deny it without involving the state's attorney.
The member said that the proposed language of the rule would bar filing of these motions. A member said that it did not seem appropriate for the court to file these motions if they had not been served. A member said that filing of documents without proof of service was already contrary to the rule, but that in some judicial units clerks have been instructed to file everything.
A member asked about the language at page 190, lines 20-21, that had been proposed to supersede the triplicate language in the change of judge statute. The member said the proposed language conceivably could be used to prevent filing of document copies as attachments to documents. A member said that duplicate documents get filed with briefs and affidavits on a regular basis. A member said that it would be unfortunate if the proposed language was used to prevent the legitimate use of copy documents with affidavits and briefs.
Mr. Hoy MOVED to amend the language at page 190, line 20-21, to read: "A party need only file the original demand for change of judge." Ms. Ottmar seconded.
Members said that the language seemed out of place in Rule 3.1 and that people would likely still file triplicate copies under the statute until the language was removed from the statute. A member said the main benefit of making the amendment would be to supersede the statute.
Motion CARRIED.
By unanimous consent, the explanatory note was amended to be consistent with the amended language of the rule.
The main motion CARRIED.
RULE 26, N.D.R.Civ.P., GENERAL PROVISIONS GOVERNING DISCOVERY (PAGES 199-230 OF THE AGENDA MATERIAL)
Staff explained that the Chair requested that the Committee discuss the status of
-17-
Judge Kleven MOVED to approve the proposed amendments. Judge Marquart seconded.
The Chair said that based on recent developments in electronic discovery, it may be advisable for North Dakota to take additional steps to deal with it. The Chair said that the rules should give guidance to litigators practicing in court so that electronic discovery issues do not come as a surprise when they arise.
A member asked for the definition of "reasonably accessible" metadata. Staff said that this standard was the most conservative standard for access to metadata and was based on the 7th Circuit standard. The 7th Circuit comments indicate that reasonably accessible metadata includes date sent, date received, author and recipient but deeper metadata is not discoverable.
A member said that the proposed language for the discovery meeting location and meeting seems to conflict--the initial language seems to require the discovery meeting to be in the county where the action is pending while later language allows the meeting to be held by telephone or video conference. A member suggested that the rule's requirements would be satisfied if one person was in the county while another was on the phone--the locus would be where either of the recipients was at.
A member said that the language dictating where the meeting was to take place was not needed. The member said that, in North Dakota, an attorney from Williston and one from Fargo may have a case venued in Bismarck. The member said it makes no sense to have the attorneys meet in the county where the case is venued if they are located elsewhere.
A member said the proposed language allows attorneys to agree to meet wherever they wish for the discovery meeting.
Mr. Dunn MOVED to rewrite language at page 209, line 181-182: "If such a request is made, the parties must meet within 21 days, unless agreed otherwise by the parties or their attorneys or another time for the meeting is ordered by the court." Mr. Reierson seconded.
Motion CARRIED.
-18-
Motion CARRIED.
The main motion CARRIED. The rule proposal will be sent to the Supreme Court as part of the Annual Rules Package.
The meeting recessed at 4:30 p.m. on January 26, 2012.
January 27, 2012 - Friday
The meeting was called to order at approximately 9:00 a.m. by Justice Mary Muehlen Maring, Chair.
N.D.R.Crim.P. 46, RELEASE FROM CUSTODY (PAGES 88-127 OF THE AGENDA MATERIAL)
The Chair welcomed Tom Trenbeath, chief deputy attorney general, and Tim Myers, BCI agent, who were present to answer any questions the Committee might have on the 24/7 program.
Staff reviewed the discussion of Rule 46 at the September 2011 meeting, when the Committee addressed a letter from the N.D. Association of Criminal Defense Lawyers, who had concerns about participation in the 24/7 sobriety program being used as a condition of bail. Staff presented the Committee with research on the use of the 24/7 program as a bail condition in South Dakota and how 24/7 violations were enforced in that state.
The Chair asked how many judges were using 24/7. The judges on the Committee do use the program. As far as enforcement when someone violates the program, some judges have been forfeiting a portion of their bond and post an additional amount to get out. Other judges have leaned to the Minnesota approach, which is to obtain a large cash bond or a smaller cash bond plus participation in the 24/7 program. If someone who chooses the smaller bond violates the program, they are taken into custody and can request a new bond hearing.
A member said that one type of violation is that people do not have the money to pay for a given test. These people are taken into custody and generally put out as soon as the court sees them. If the person has a positive test, the court will hold the person longer in jail and increase their cash bond.
-19-
A member said that under Rule 46(a)(4), the court is directed to inform a person given a conditional release that a warrant for their arrest will be issued on any violation of the conditions. The member said that if a person is released under the condition of participating in the 24/7 program, the person can be arrested immediately without a warrant if there is a violation. The member said this result seems inconsistent with the rule, but it is allowed under the 24/7 statutes.
Staff said that the South Dakota bond condition form provides a warning that violation of the 24/7 condition can lead to immediate arrest and detention without bond.
The Committee did not make any changes to Rule 46.
RULE 3.1, N.D.R.Ct., PLEADINGS (PAGES 188-198 OF THE AGENDA MATERIAL)
Staff informed the Committee that it would need to send Rule 3.1 to the Supreme Court as an emergency measure if it wished to timely supersede the triplicate filing requirement in the change of judge statute.
Mr. Hoy MOVED to send the Rule 3.1 proposal to the Supreme Court as an emergency measure. Ms. Ottmar seconded. Motion CARRIED.
RULE 33, N.D.R.Civ.P., INTERROGATORIES TO PARTIES (PAGES 231-266 OF THE AGENDA MATERIAL)
Staff explained that Mr. David Peterson wrote the Committee to request that Rule 33 be amended to limit the number of interrogatories a party may serve to 25, consistent with Fed.R.Civ.P. 33. Mr. Peterson's maintained that the change was needed because of the "excessive and ridiculous" number of interrogatories being served even in simple cases.
Mr. Dunn MOVED to approve the proposed amendments to Rule 33. Mr. Boschee
-20-
A member said serving an abusive amount of interrogatories is a big problem in North Dakota. The member said limiting interrogatories to 25 would not be good, especially in domestic cases when parties are trying to save legal fees by conducting discovery through interrogatories. The member said 75 might be a reasonable amount of interrogatories, but that it was not necessary to make a rule to keep people limit interrogatories.
A member said that a colleague recently received a set of 247 interrogatories in a domestic relations case. The member said that interrogatory abuse has not been a problem in North Dakota, but things are changing and it is becoming a problem. The member said 25 interrogatories was too low a limit, but that there should be some limit. The member said attorneys should not have to seek protective orders in every case.
A member said that having many interrogatories served in domestic cases is becoming a more frequent occurrence. The member said that 25 interrogatories or so was customary just a few years ago but now 200 or more interrogatories in domestic cases is not uncommon. The member said that much of the information sought by the many interrogatories seems like information that should be automatically disclosed under Rule 8.3. The member said often at the conclusion of a domestic case the attorneys ask for $20,000 plus in attorney fees to cover this discovery from clients who do not have that much money between them to begin with. The member said this is frustrating for the court.
A member said the rules allow a party who receives harassing discovery to seek protection from the court. The member said the proposed 25 interrogatory limit is too low and there are ways to deal with too many interrogatories that do not involve changing the rules.
A member said 25 interrogatories would not be enough, but that the example submitted by Mr. Peterson is typical of the excess amounts of interrogatories commonly seen. The member said there were "only" 84 questions but this rose to 275 questions if subparts were included. The member said if interrogatories were the only way to get discovery, having unlimited interrogatories would be fine. The member said, however, that the same questions asked in interrogatories are typically asked again in depositions. The member said it seems like parties do not even look at the interrogatory answers. The member said that some attorneys are abusing the current system and that there needs to be some limit on interrogatories. The member said going to the court for help is not a desirable solution because the court does not want to be involved in discovery disputes.
A member said that some attorneys who send out hundreds and hundreds of
-21-
A member said attorneys hate to go into court and ask for a protective order on interrogatories especially when their clients do not have much money.
Mr. Boschee MOVED to amend at page 248, line 13, to change "25" to "50." Judge McLees seconded. Motion CARRIED.
A member asked for the definition of "discrete subpart." Staff said the federal commentary said subparts to a question could not seek information about separate subjects but could seek specific details related to the main question. Staff said that federal case law likely expanded upon this commentary.
Judge Kleven MOVED to add language to the explanatory note including the federal definition of "discrete subpart." Ms. Ottmar seconded. Motion CARRIED.
The main motion CARRIED. The rule proposal will be sent to the Supreme Court as part of the Annual Rules Package.
RULE 4.1, N.D.R.Crim.P., COMPLAINT, WARRANT, OR SUMMONS BY TELEPHONE OR OTHER RELIABLE ELECTRONIC MEANS (PAGES 267-300 OF THE AGENDA MATERIAL)
Staff explained that a new Fed.R.Crim.P. 4.1, separating and updating the parts of Fed.R.Crim.P. 41 that authorized the issuance of search warrants by remote communication and electronic transmission, took effect December 1, 2011. Staff presented a proposed new Rule 4.1 for North Dakota based on the federal rule and companion rule amendments to N.D.R.Crim.P. 3, 4, 9 and 41 designed to implement the "reliable electronic means" option for complaints, arrest warrants, summons and search warrants.
Judge McLees MOVED to adopt the proposed new Rule 4.1. Mr. Olson seconded.
A member said that one change in the proposed new rule is that the magistrate would be responsible for recording and transcription. The member said that some judges do not have recording equipment at home, which is where they receive many warrant requests. The member said the requesting entity typically has done the recording and transcribing in the past.
-22-
A member said that the current rules require a magistrate to make a recording if a device is available or to take notes if not. A member said that the state's attorney or police generally have digital recorders and they make the recording, not the magistrate. The member said if the magistrate is able to do the proceeding in the courthouse, then they use their own equipment. The member said the recordings, regardless of who makes them, are not now automatically transcribed as the rule proposal would require.
A member said the point of the rule is not to require judges to buy recording equipment but to ensure the integrity of the record on which a warrant is issued. The member said leaving the recording with the officer does cause some concern, but as long as there is a recording made that is provided to the court so that it can be transcribed at a later date, the rule's intent would seem to be satisfied. The member said that as part of modernizing the rule, the Committee should take into account modern recording devices.
A member said the transcription requirement in the proposal is probably not necessary for many of the warrants the rule covers, such as arrest warrants and summonses. A member said that a recording of a proceeding can be saved on a disk or flash drive, but this is something the clerks will have difficulty filing.
A member asked how the recorded proceedings were stored and preserved. Judges on the Committee indicated that they were uncertain. A member said many of the transcriptions were not very good and preserving the integrity of the recordings was important so that proceedings can be reviewed.
A member said if a BCI agent is seeking a warrant, they record the proceeding on their end and put it on a disk. The disk is then turned over to the judge who stores it in chambers. The member said the proceeding does not get transcribed unless there is a controversy.
A member said in a middle of the night situation, when no court recorder is available, the police will record the proceeding on their digital recorder and they make a transcript, which is turned over to the court. The member said that it would be possible to request an electronic copy in addition to the transcript.
A member said that, from a criminal defense perspective, if law enforcement makes the recording, it would be preferable for them to turn the recording over to the court and have
-23-
A member said consequences would have to be borne by the state if the recording could not be found, or had deteriorated, or was unintelligible. A member said that law enforcement seems to be very thorough in making adequate recordings and more judges are obtaining recording equipment to use in their homes. The member said recordings are replacing law enforcement affidavits so law enforcement has taken steps to have adequate recording equipment.
A member said it is necessary to have warrant forms ready when doing a warrant by remote means. A member said that law enforcement typically emails the form to the judge, who can complete or amend it and email it back to law enforcement. A member said being able to work with warrants by email is a great tool for rural counties.
The Committee discussed possible amendments to the proposal consistent with the issues raised during the discussion.
Mr. Quick MOVED to amend the proposal at page 268, lines 17-22, as follows:
" (i) have ensure the testimony is
recorded verbatim by an electronic recording device, by
a court reporter or recorder, or in writing;
(ii) ensure any recording or
notes are filed, transcribed on request, transcribed have the
transcription and any transcription is certified as accurate;
(iii) sign any other written record
and ensure it is certified as accurate and filed.;
and
(iv) make sure
that ensure the exhibits are filed."
Judge Reich seconded.
A member wondered what sort of written record would need to be signed as required by (iii). A member said possibly the court reporter's notes, as when recorded by shorthand. Another possibility was the original affidavit-- a member said the whole point of this part of the proposal was to account for additional testimony and exhibits used to supplement the original affidavit.
A member said sometimes the affidavit is submitted and then there needs to be additional writing on it by the officer. The officer would initial off on the writing and then the magistrate would need to sign the affidavit as required by (iii).
-24-
A member asked who would do the certification when police officers transcribe a recording. A member said the person who did the transcription would have to certify it as accurate under the rule.
The motion CARRIED.
A member said it was not clear from the rule that a record needed to be made of the entire proceedings. The member said that (b)(2)(B), which the Committee amended, made it clear that a record needed to be made when taking additional testimony. The member said there were no details of how to make a record in (b)(1).
A member said (b)(2)(A) deals with the affidavit, which is testimony under oath. The member said that any "testimony" in connection does not need to be recorded, it is attested to on the affidavit in writing. The member said additional testimony and evidence has to be recorded, and this is dealt with in (b)(2)(B).
A member said if there is no affidavit and the magistrate is just taking an officer's testimony, this would be required to be record under (b)(2)(B). A member said that a standard warrant is just based on an affidavit and it is not necessary to make a recording of swearing in the officer on the affidavit.
The main motion CARRIED. The rule proposal will be sent to the Supreme Court as part of the Annual Rules Package.
RULE 3, N.D.R.Crim.P., THE COMPLAINT (PAGES 273-275 OF THE AGENDA MATERIAL)
Staff explained that proposed amendments to N.D.R.Crim.P. 3 were designed to implement proposed N.D.R.Crim.P. 4.1 and the "reliable electronic means" method for obtaining complaints.
Ms. McLean MOVED to adopt the proposed amendments to Rule 3. Judge McCullough seconded.
-25-
RULE 4, N.D.R.Crim.P., ARREST WARRANT OR SUMMONS UPON COMPLAINT (PAGES 276-285 OF THE AGENDA MATERIAL)
Staff explained that proposed amendments to N.D.R.Crim.P. 4 were designed to implement proposed N.D.R.Crim.P. 4.1 and the "reliable electronic means" method for obtaining arrest warrants and summonses.
Mr. Olson MOVED to adopt the proposed amendments to Rule 4. Judge Marquart seconded.
The motion CARRIED. The rule proposal will be sent to the Supreme Court as part of the Annual Rules Package.
RULE 9, N.D.R.Crim.P., WARRANT OR SUMMONS UPON INDICTMENT OR INFORMATION (PAGES 286-289 OF THE AGENDA MATERIAL)
Staff explained that proposed amendments to N.D.R.Crim.P. 9 were designed to implement proposed N.D.R.Crim.P. 4.1 and the "reliable electronic means" method for obtaining arrest warrants and summonses.
Judge Kleven MOVED to adopt the proposed amendments to Rule 9. Mr. Hoy seconded.
The motion CARRIED. The rule proposal will be sent to the Supreme Court as part of the Annual Rules Package.
RULE 41, N.D.R.Crim.P., SEARCH AND SEIZURE (PAGES 290-300 OF THE AGENDA MATERIAL)
Staff explained that proposed amendments to N.D.R.Crim.P. 41 were designed to implement proposed N.D.R.Crim.P. 4.1 and the "reliable electronic means" method for obtaining search warrants.
Judge Marquart MOVED to adopt the proposed amendments to Rule 3. Mr. Quick seconded.
A member said that it was unclear whether the execution provision of Rule 41, which
-26-
Judge Marquart MOVED to restore language at page 293, lines 75-76, move it to page 294, line 85, rename it paragraph (d)(1), and reletter subdivision (d). Judge Reich seconded.
Motion CARRIED.
By unanimous consent, the words "or summons" were deleted at page 298, line 180.
The main motion CARRIED. The rule proposal will be sent to the Supreme Court as part of the Annual Rules Package.
RULE 9, N.D.R.Crim.P., WARRANT OR SUMMONS UPON INDICTMENT OR INFORMATION (PAGES 286-289 OF THE AGENDA MATERIAL)
Judge Kleven requested that the Committee take a second look at Rule 9.
A member pointed out that at page 286, line 14, the rule requires that warrants be signed by the clerk. The member said that in some districts, magistrates or judges sign all arrest warrants. The member said that other language in the rule indicates that warrants are issued by the court. The member suggested that it would be appropriate for the rule to require warrants to be signed by a magistrate or judge.
Judge Kleven MOVED to amend Rule 9 at page 286, line 14, to replace "clerk" with "court." Mr. Olson seconded.
A member said that Rule 4(b)(1) says that a warrant on a complaint must be signed by the issuing magistrate. A member said there might be a reason why an arrest warrant on an indictment or information needs to be signed by the clerk.
Judge Kleven MOVED to table for staff to research why the clerk has been designated to sign the warrant under Rule 9. Judge McCullough seconded. Motion CARRIED.
FORM AND STYLE AMENDMENTS TO THE N.D.R.Ev.(PAGES 301-348 OF THE AGENDA MATERIAL)
Staff informed the Committee that form and style revisions to the Federal Rules of Evidence took effect on December 1, 2011. Staff said that the Rule on Rules, requires the Committee to study and review all rules of pleading, practice and procedure, including the
-27-
RULE 102, N.D.R.Ev., PURPOSE AND CONSTRUCTION (PAGES 307-309 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 102 based on the amendments to the federal rule.
Mr. Dunn MOVED to adopt the proposed amendments to Rule 102. Judge Marquart seconded.
The motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
RULE 103, N.D.R.Ev., RULINGS ON EVIDENCE (PAGES 310-317 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 103 based on the amendments to the federal rule. Staff explained that the proposal contained new language that eliminated the requirement for a party to renew objections to evidence admission once a definitive ruling was made.
Mr. Boschee MOVED to adopt the proposed amendments to Rule 103. Judge Marquart seconded.
A member said the new language on renewal of objections was a significant change to the rule. A member said there was a lot of case law on the existing requirement that objections be renewed. The member said the theory behind requiring is that evidence can come out differently at trial than expected at the pre-trial motion in limine stage, so objections need to be renewed at trial.
A member said that the change was not a good idea. The member said the context of a motion in limine can change at trial. A member said it is very common to have witnesses change their testimony between preparation and when they get on the stand.
A member said that the change, if accepted, would be across the board and apply to civil and criminal trials. A member said it does not hurt to require a party to renew an
-28-
A member said that judges will be able to get around the new language, if it is accepted, by being less definitive with their rulings on motions in limine.
A member said that, under the current rule, if a side objects to a type of evidence that is likely to be discussed by many of the opposing witnesses, the side will be required to make repeated and identical objections at trial in order to attempt to prevent the evidence from being admitted and to preserve the issue for appeal. A member said the proposed change would be beneficial in this situation because the side would only need to make its objection once.
A member said a compromise solution would be to limit the non-renewal rule to objections made at trial. The parties could then make motions in limine, and any party aggrieved by a ruling on a motion in limine could renew their objection at trial. Once a definitive ruling was made on an objection at trial, however, there would be no requirement to renew the objection.
Mr. Hoy MOVED to amend at page 310, line 19, to delete the words "either before or." Judge Marquart seconded.
A member said the proposed amendment would help prevent the situation where a decision on a pretrial motion in limine may not definitively decide an issue, but a party relies on it without renewing the issue at trial.
Motion CARRIED.
A member asked what the meaning of "suggested" was when used in subdivision (d) at page 311, lines 31-33. A member said the prior language of the rule gave examples for suggestion of evidence, such as the court or attorneys making statements or offers of proof within the hearing of the jury.
Mr. Dunn MOVED to restore the former language at page 311, lines 39-30, and transfer it to the end of the sentence at page 311, line 33. Ms. McLean seconded.
A member said the term "suggest" was very awkward and some explanation was
-29-
Motion CARRIED.
A member asked what would happen if an exhibit is offered, objected to, an offer of proof made, but ultimately not admitted when one witness is on the stand. Then later, another witness provides the foundation for the exhibit that was offered, but the party who offered the exhibit makes no effort to renew its attempt to admit the exhibit. The member asked whether the party offering the evidence on appeal could then argue the court erred by not admitting the evidence because Rule 103 essentially required the court to reverse itself without the party offering taking any affirmative action.
A member said the federal notes at page 315 said that the "no need to renew" language imposes an obligation on counsel to ensure that an evidentiary ruling is definitive. A member asks whether this means that counsel has an obligation to attempt to reintroduce evidence once a new foundation is laid or whether they can simply search the record after trial for foundation and use what they find to argue that the judge erred in refusing to admit an exhibit. Committee members said that the evidence would have to be re-offered once the foundation had been laid.
A member suggested that the language of the rule could be modified to indicate that the court must state that an evidence ruling is definitive before a party could rely on not having to renew an objection or make an offer of proof. A member said that it is unclear what "definitive" means. A member said that a zealous attorney will continue to try to admit important evidence even when the court says a ruling is definitive. A member said it is counsel's job, not the court's, to try to admit evidence and to point out new foundation that comes out in the course of trial.
A member pointed out language in the federal comments on page 316 that provided insight into the definition of a "definitive" ruling. Staff was instructed to revise the explanatory note to include the federal language to reflect the changes made by the Committee.
The main motion CARRIED. The rule proposal will made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
RULE 104, N.D.R.Ev., PRELIMINARY QUESTIONS (PAGES 318-322 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 104 based on the amendments to the
-30-
Judge Marquart MOVED to adopt the proposed amendments to Rule 104. Ms. McLean seconded.
The motion CARRIED. The rule proposal will made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
RULE 105, N.D.R.Ev., LIMITED ADMISSIBILITY (PAGES 323-326 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 105 based on the amendments to the federal rule.
Ms. Ottmar MOVED to adopt the proposed amendments to Rule 105. Judge Kleven seconded.
The motion CARRIED. The rule proposal will made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
RULE 106, N.D.R.Ev., REMAINDER OF OR RELATED WRITINGS OR RECORDED STATEMENTS (PAGES 327-329 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 106 based on the amendments to the federal rule.
Judge Marquart MOVED to adopt the proposed amendments to Rule 106. Mr. Dunn seconded.
The Chair said that the Supreme Court had recently reviewed a matter in which one party wanted to read part of a deposition into the record and the opposing party requested that the entire deposition be admitted under Rule 106. Unfortunately, the full transcription was not yet available so there was an issue as to who had to pay for the full transcription. The full transcription ultimately was not admitted because it had not been completed.
The motion CARRIED. The rule proposal will made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
RULE 201, N.D.R.Ev., JUDICIAL NOTICE OF ADJUDICATIVE FACTS (PAGES 330-337 OF THE AGENDA MATERIAL)
-31-
Staff presented proposed amendments to Rule 201 based on the amendments to the federal rule. Staff explained that the proposed new subdivision (f) follows the federal rule and applies different standards to jury instructions on judicial notice in civil and criminal cases.
Mr. Quick MOVED to adopt the proposed amendments to Rule 201. Judge Marquart seconded.
Mr. Olson MOVED to amend at page 331, lines 33-35, deleting the proposed new language and restoring the previous language at page 331, lines 31-32. Judge Marquart seconded.
A member said there was no need to have a separate standard for judicial notice in civil and criminal cases. A member said if there was a separate standard for judicial notice, there would be no reason for a judge ever to take judicial notice in a criminal case.
A member said the court needs to take judicial notice of certain things, such as that a can of beer contains alcohol, so the state does not need to have chemical tests done in every minor in possession case. The member said if evidence is so strong that the court is able to take judicial notice of it, then there should be no separate standard in a criminal case. The member said that safeguards exist under the rule and the opposing part can raise objections to judicial notice and make a record.
A member said if the state is asking the court to take judicial notice of an important fact, such as whether there was alcohol in a beer can, the defense should be able to object and the jury should be allowed to consider the issue for itself. The member said there should not be conclusive judicial notice of facts in a criminal case. The member said judicial notice is mostly useful to speed the trial along and this is not a key consideration in a criminal case.
A member said that judicial notice is not often needed in a criminal case given that the jury almost always gets the matters of common knowledge and science instruction.
The motion CARRIED 11-5.
The main motion CARRIED. The rule proposal will made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
The meeting adjourned at approximately 11:35 a.m. on January 27, 2012.
-32-
________________________________
Michael J. Hagburg