MINUTES OF MEETING
Joint Committee of the Judicial Council
and the State Bar Association
for the Adoption of Rules of Criminal Procedure
March 12, 1970
The Joint Committee of the Judicial Council and the State Bar Association for the Adoption of Rules of Criminal Procedure met at 1:20 p.m., March 12, 1970, in the hearing room of the Supreme Court.
Supreme Court Judge Ralph J. Erickstad, Chairman;
District Judge Eugene A. Burdick;
District Judge Roy A. Ilvedson;
District Judge Norbert Muggli;
County Judge Kirk Smith;
Retired Supreme Court Judge James Morris;
Former Supreme Court Judge William S. Murray;
First Assistant Attorney General Paul M. Sand;
Mr. Robert L. Vogel;
Mr. Gerald Glaser; and
Mr. John Shaft.
Mr. John A. Graham and
Mr. Roger Persinger.
Also present were:
Mr. William Engelter, law clerk, and
Mrs. Lorna Bender, secretary.
Mr. Paul Albright of the Associated Press attended during the discussion of Grand Jury.
The chairman welcomed those present and introduced the new law clerk and secretary.
The chairman called for suggestions for changes and corrections in the minutes of the last meeting and there were none. Judge Murray moved the minutes be approved as submitted. Mr. Shaft seconded the motion and it carried.
The chairman called on Paul Sand for his report on Rule 6, Grand Jury. Mr. Sand read his letter to Judge Erickstad dated March 12, 1970, in which he said the purpose of his report was to help the Committee reach a consensus that would lead to a draft of a bill for the Legislature. After a brief discussion Mr. Sand read his report on Rule 6. He said that as long as the Fifth Amendment provision, "No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of the grand jury. . ." applies to the states we should amend our grand jury statutes, Chapter 29-10, which were enacted in 1877, to make the procedures more refined and workable. Statutory direction would be desirable as to the examination, selection, and excusing of jurors, instructions, transcript, secrecy, petition, bailiff, exhibits, reports to the court, time limitations, and separation of grand juries from terms of court.
The chairman gave Judge Morris first opportunity to comment and he declined. The chairman then called for general discussion, reminding the Committee they had no authority as a committee to promulgate any change in statutes, but asking for suggestions as to what might be included in proposed legislation.
After discussion Judge Burdick moved to appoint a subcommittee of three to work on proposed improvements. Judge Murray seconded the motion and it carried. The chairman appointed Paul Sand as chairman, along with Mr. Vogel and Judge Muggli.
The chairman then called on Judge Burdick for his thoughts on Rules No. 37 and No. 39. Judge Burdick said the inconsistency between them is that a transcript is not required under Rule 37. Mr. Vogel said the federal government has new rules of appellate procedure that have pre-empted Rules 37 and 39 and are far superior, It was noted that a subcommittee on that had proposed adopting great portions of U.S. Appellate Court Rules, but in light of the fact they are just in the beginning stages, we should have something in our criminal rules on this subject sooner.
Mr. Vogel read Rules 37(c) and 39(c) as follow:
Rule 37(c) - Transmittal to Appellate Court.
Within five days after the notice of appeal is filed with the court from which the appeal is taken, the clerk of the court, or the judge if there is no clerk, shall transmit to the clerk of the court to which the appeal is taken the notice of appeal, the verdict, the judgment, or any order of the court from which the appeal is taken, the complaint or information, the undertaking on appeal and certificate of probable cause, if any, and all other documents and papers filed in the action, which shall be docketed by the clerk of the appellate court without charge to the appellant.
Rule 39 (c) - Docketing of Appeal and Record on Appeal.
The record on appeal shall be filed with the appellate court and the proceeding there docketed within 40 days from the date the notice of appeal is filed in the lower court, but if more than one appeal is taken from the same judgment to the same appellate court, the lower court may prescribe the time for filing and docketing, which in no event shall be less than 40 days from the date the first notice of appeal is filed. In all cases the lower court or the appellate court or, if the appellate court is not in session, any judge thereof may for cause shown extend the time for filing and docketing.
The chairman said he would expect Mr. Vogel and Judge Burdick to resolve this by 9:00 a.m. Friday.
The chairman then thanked Judge Burdick for his help in securing copies of the Minimum Standards books and it was noted the sets would be complete with the addition of "Fair Trial and Free Press," "Electronic Surveillance," and "Criminal Appeals."
Mr. Vogel said the committee had passed Rule 11 before the matter of plea bargaining came up. He moved that the vote by which Rule 11 passed be reconsidered. The motion was seconded by Judge Burdick and carried.
Judge Burdick said he would like to have the efforts of this committee made available to the Special Committee on Criminal Procedure of the National Conference of Commissioners on Uniform State Laws.
Mr. Vogel said his proposed draft of Rule 11 had been taken, with slight modifications, from the Minimum Standards book, "Pleas of Guilty," but that his numbering is not in conformity with the book.
There followed a discussion of plea bargaining, and it was noted that the word "should" is not mandatory in (6)(c) of proposed Rule 11: "Similarly situated defendants should be offered equal plea agreement opportunities."
The chairman called on Mr. Glaser for his recommendation as to Rule 40. Mr. Glaser moved to retain the number "40" without a rule. Mr. Vogel seconded the motion and it carried.
Mr. Glaser read Rule 41(b) to the meeting. The definition of "contraband" according to Webster's Second International Dictionary is:
"1. Illegal or prohibited traffic.
"2. Goods or merchandise the importation or exportation of which is forbidden; also, smuggled goods."
Judge Burdick moved that the phrase "constituting contraband" be added as No.(3) to Rule 41(b). Judge Smith seconded the motion and the amendment was adopted.
Judge Burdick moved to adopt the rule as amended. Mr. Sand seconded the motion and Rule 41(b) was adopted as amended. It reads as follows:
Rule 41. Search and Seizure.
(b) Grounds for Issuance. A warrant may be issued under this rule to search for and seize any property:
(1) Stolen or embezzled in violation of the laws of this or any other state or of the United States; or
(2) Designed or intended for use as a means of committing a criminal offense, or which is or has been so used; or
(3) Constituting contraband.
The chairman inquired of Judge Muggli whether or not Rule 38 was satisfactory as it is, for working out in justice and municipal courts, and Judge Muggli said it would be.
The chairman suggested entertaining a motion to adopt Rule 41(a). Judge Smith moved that Rule 41 be deferred to the next meeting and Judge Burdick seconded the motion and it carried.
Judge Burdick read his letter of December 18, 1969, regarding Rule 31, which was addressed to Judge Erickstad, as follows:
After further reflection upon the matter, I have come to the conclusion that it is desirable to have a rule that will permit both a general verdict with special findings as well as special verdicts. The situations in which either would be useful are limited, but I wish to note a few.
In a criminal case where the defendant interposes the defense of "insanity" at the time of commission of the alleged offense, it is desirable to learn, in a case where the defendant is found not guilty by reason of insanity (Section 29-22-17, NDCC), whether the defendant's insanity or mental irresponsibility exists
at the time of trial. This better enables the court to discharge its duty under Section 29-27-36 [corrected to Section 29-32-36]. This was the use made of a general verdict with a special finding in State v. Tugas (Wash. 1950) 222 P.2d 817. The form of the special findings would be somewhat like the enclosed specimen. Whenever the defendant is charged with the commission of an offense after having been previously convicted of another offense (Sections 12-06-19, 12-06-20 and 12-06-21, NDCC), a special finding with respect to the latter is essential if the jury finds the defendant guilty of the former. Section 29-22-24, NDCC. See also Sections 29-22-28, 29-22-32 and 29-22-33, NDCC.
Then, there are a number of situations where special verdicts are desirable. See Section 29-22-17, NDCC. These would be used where the defendant interposes the defense of "former conviction or acquitted of the same offense, or once in jeopardy." Section 29-22-33, NDCC. See also Sections 29-22-18 and 29-22-19, NDCC.
Accordingly, I would suggest adding to Rule 31 a subdivision (e) providing for special findings, and a subdivision (f) providing for special verdicts. If the recommendation is accepted by the committee, I would undertake the drafting of those proposed subdivisions.
Judge Muggli read Section 29-22-16, which follows:
General verdicts--Contents.--A general verdict upon a plea of not guilty is either "guilty" or "not guilty," which imports a conviction or acquittal of the offense charged in the information or indictment. Upon a plea of a former conviction or acquittal of the same offense, or once in jeopardy, it is either "for the state" or "for the defendant." When the defendant is acquitted on the ground t he was insane at the time of the commission of the act charged, the verdict must be "not guilty by reason of insanity."
Judge Erickstad suggested Judge Burdick prepare a draft of Rule 31 and submit it to the committee at the next meeting. Judge Burdick moved to reconsider Rule 31 and recognize the need for changes. Judge Murray seconded the motion and it carried unanimously.
Judge Murray read his draft of Rule 42. Following is a letter to Judge Murray from Judge Ilvedson regarding Rule 42:
The North Dakota Contempt procedure is in Chapter 27-10, as you know. This Chapter contains both the civil and criminal contempt procedures. I have not given it serious consideration, but my first reaction is that Rule 42 could take the place of the criminal contempt procedure.
I think that you should read Bloom v. Illinois, 391 U.S. 194, 20 L.Ed.2d 522, 88 S.Ct. 1477. This is a 1968 Supreme Court decision. Be sure to read the final paragraph or two of the opinion.
In the criminal contempt cases involving the teachers that disobeyed my Court Order about the picketing one of the contentions is that they were entitled to a jury trial. The Supreme Court has taken the stand that if the punishment does not exceed six months, it is a "petty offense," and the defendant is not entitled to a jury trial. It happens that the punishment for criminal contempt under North Dakota law, Section 27-10-02, NDCC, is not more than $250.00, or a County Jail sentence of not more than thirty days. The punishment for civil contempt, by the way, is not exceeding six months. I note that Section "b" under Rule 42 leaves it to the Judge to impose the punishment. I am not so sure whether that is a good policy because of the possibility that a defendant may be entitled to a trial by jury; however, the last paragraph of Bloom v. Illinois indicates that if the penalty is not fixed by statute, the Court looks to the punishment actually imposed to decide how serious the matter is, whether it amounts to a "petty offense."
At the same time, I appreciate the fact that the limiting of a punishment may not be good at times either. For instance, our Criminal Contempt Statute, as I stated above, limits the fine to $250.00. This type of fine would be "peanuts" if a wealthy corporation was involved.
But, as I have indicated, I have not really given serious consideration to the matter, whether Federal Rule 42 can completely take the place of our Contempt Statutes. I would like to see our Statutes simplified.
There followed a brief discussion of contempt, and the meeting adjourned at 4:30.
The mating reconvened at 9:00 a.m. (Friday) March 13, 1970. Mr. Vogel was at his dentist's and Mr. Persinger was busy on a case.
The chairman called on Judge Burdick to continue his comments on Rule 42, Criminal Contempt. Judge Burdick said that if a statute purports to control the maximum sentence that can be imposed for criminal contempt, or any contempt, and the legislature can control the maximum sentence that can be imposed, and if the maximum is under six months, then the accused is not entitled to a jury trial. But if the statute provides for a maximum over six months, he is entitled to a jury trial as a matter of course. If there is no statute fixing a limit and punishment is imposed for more than six months, he should have a jury trial.
Judge Burdick has written a Law Review article (43 N.D.L.R. 237) and basic cases in there distinguish between direct and indirect contempt. Direct Contempt is in the immediate presence of the court and the defendant is not entitled to any trial at all, not even court trial. Judge Burdick said there is some question about this even where the contemptuous conduct (direct contempt) deals with personal offense or abuse against the judge. In those cases the defendant might be entitled to another trial. He didn't think a mere outburst like in Chicago would come into that category. For instance, if someone suggested the judge had accepted a bribe, another judge would have to hear.
Judge Smith said it seemed to him that the proposed standard would be difficult to apply because it would have to be applied immediately, and it would be better to have the judge who is sitting at the hearing be able to punish immediately, whether the contempt is addressed to the court proceedings or to the judge personally. Every time somebody wanted to disrupt proceedings, they would have to be given another judge, and we are only nineteen district courts strong in this state.
Judge Burdick said he was thinking of changing judges only for serious personal charges and not for name calling.
Judge Smith suggested it sometimes may be hard to tell whether an insult was directed to the court or to the judge personally and that it seemed to him an amorphous standard to apply.
Judge Murray read the following from the case of Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed. 522:
Some special mention of contempts in the presence of the judge is warranted. Rule 42(a) of the Federal Rules of Criminal Procedure provides that "[a] criminal contempt may be punished summarily if the judge certified that he saw or heard the conduct constituting contempt and that it was committed in the actual presence of the court." This rule reflects the common-law rule which is widely if not uniformly followed in the States. Although Rule 42(a) is based in part on the premise that it is not necessary specially to present the facts of a contempt which occurred in the very presence of the judge, it also rests on the need to maintain order and a deliberative atmosphere in the courtroom. The power of a judge to quell disturbance cannot attend upon the impaneling of a jury. There is, therefore, a strong temptation to make exception to the rule we establish today for disorders in the courtroom. we are convinced, however, that no special rule is needed. It is old law that the guarantees of trial found in Article III and the Sixth Amendment do not apply to petty offenses. Only today we have reaffirmed that position. Duncan v. State of Louisiana, supra, 391 U.S., at 159-162, 88 S.Ct., at 1452-1454, 20 L.Ed.2d 491. By deciding to treat criminal contempt like other crimes insofar as the right to jury trial is concerned, we similarly place it under the rule that petty crimes need not be tried to a jury.
Judge Murray said Bloom didn't commit an act of temper, but filed for probate a will falsely prepared and executed after death. Mr. Engelter said the judge should have the power to control his court and that this decision about another type of contempt is not going to carry over into contempt in the presence of the court.
During the ensuing discussion the following was read from Offutt v. U.S., 348 U.S. 11, quoting Cooke v. U.S., 267 U.S. 517, 539:
". . . where conditions do not make it impracticable, or where the delay may not injure public or private right, a judge called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place."
Mr. Glaser said if we adopt (a) and (b) as proposed, anything in conflict in the statutes would be superseded. He read from the North Dakota Century Code as follows:
27-10-01. Acts punishable as criminal contempts by courts of record.--A court of record of this state may punish as for a criminal contempt any person guilty of any:
1. Disorderly, contemptuous, or insolent behavior committed during its sitting and in its immediate view and presence and directly tending to interrupt its proceedings or to impair the respect due to its authority;
Judge Murray moved that Rule 42 be adopted. Judge Muggli seconded the motion.
Judge Burdick questioned the penultimate (second-to-the-last) sentence in 42(b): If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant's consent.
Judge Burdick moved that the penultimate sentence be made a separate subdivision (c), removing it from (b). Mr. Vogel seconded the motion.
Judge Smith again expressed his concern over placing the power for changing judges in the hands of the defendant, thereby destroying the authority of the court.
Mr. Vogel read the headnotes from Sacher v. U.S., 343 U.S. 1 (1951):
1. Rule 42(a) of the Federal Rules of Criminal Procedure allows a trial judge, upon the occurrence in his presence of a contempt, immediately and summarily to punish it, if, in his opinion, delay will prejudice the trial. If he believes the exigencies of the trial require that he defer judgment until its completion, he may do so without extinguishing his power. P. 11.
2. During a turbulent nine-month's trial of eleven Communist Party leaders on charges of violating the Smith Act, defense counsel, in the presence of the trial judge and in the face of repeated warnings from him that their conduct was regarded as contemptuous, persisted in a course of conduct that was highly contemptuous and that tended to disrupt and delay the trial and possibly to cause a mistrial. Upon receiving the verdict of the jury at the conclusion of the trial, the trial judge, without further notice or hearing, immediately filed a certificate under Rule 42(a) of the Federal Rules of Criminal Procedure summarily finding such counsel guilty of criminal contempt and sentencing them to imprisonment. Held: This action was within the power of the trial judge under Rule 42(a). Pp. 3-11.
(a) The word "summary" as used in Rule 42(a) does not refer to the timing of the action with reference to the offense but refers to a procedure which dispenses with the formality, delay and digression that would result from the issuance of process, service of complaint and answer, holding hearings, taking evidence, listening to arguments, awaiting briefs, submission of findings, and all that goes with a conventional court trial. P. 9.
(b) Neither the language of the Rule nor the reasons for permitting straightway exercise of summary power requires immediate action. Pp. 9-10.
(c) The overriding consideration is the integrity and efficiency of the trial process; and, if the judge deems immediate action inexpedient, he should be allowed discretion to follow the procedure taken in this case. P. 10.
3. It is not necessary for this Court to consider the trial judge's charge that petitioners deliberately entered into an agreement to impair his health, since the Court of Appeals found the judgment amply sustained without this count, the sentences ran concurrently, and reversal on one count does not require reversal on the others. P. 11.
4. Rule 42(a) does not deny a trial judge power summarily to punish a contempt that is personal to himself, even when it is not necessary to forestall abortion of the trial. Pp. 11-12.
5. The sentences imposed in this case need not intimidate lawyers in the proper performance of their professional duties as trial counsel, for they know that from any summary conviction under Rule 42(a) they have an appeal on law and fact to the Court of Appeals. Pp. 12-13.
6. If its aid be needed, this Court will unhesitatingly protect counsel in fearless, vigorous and effective performance of every duty pertaining to the office of the advocate on behalf of any person whatsoever. Pp. 13-14.
The Committee continued discussing the various problems that might arise in dealing with contempt matters, especially delay and the disqualification of judges. Mr. Vogel read a comment from Moore's [8A, 42-24]:
"Subdivision (b) also provides that 'if the contempt charged involves disrespect to or criticism of a judge that judge is disqualified from presiding at the trial or hearing except with the defendant's consent.' This provision was 'prompted by the common experience that uncommonly prejudiced individuals almost invariably consider themselves impartial.'"
Mr. Glaser wondered whether it wouldn't be better to stay with the rule we have.
Judge Burdick made a substitute motion to replace penultimate sentence with: "(c) Where conditions do not make it impractical or when delay may not injure public or private right, a judge called upon to act in case of contempt by personal attack upon him may properly request another judge to make the disposition upon a verdict or finding of guilt."
The substitute motion was seconded by Mr. Vogel and the discussion continued. A vote showed those in favor of Judge Burdick's substitute motion were: Mr. Vogel, Judge Burdick, and Mr. Shaft; those opposed: Judge Muggli, Judge Smith, Mr. Sand, Judge Ilvedson, Mr. Glaser and Judge Murray.
Judge Burdick then moved to delete the penultimate sentence from (b) with no substitute. Mr. Glaser seconded the motion.
Mr. Glaser asked if a defendant could sign an affidavit of prejudice on a judge when the judge made a contempt charge. Judge Erickstad said you cannot sign such an affidavit once the trial is underway, but that the federal rules may vary that some.
Judge Muggli said the federal rule is different on affidavits of prejudice, requiring reasons to be set forth, and that he did not think it should be limited that way. In this state we have a mimeographed form to file.
The chairman mentioned two letters, from Judge Heen and from Judge Lynch, about changing this rule. Judge Murray said that one of his sources for the penultimate sentence was U.S.C.A. 18, Rule 42, Page 292, Note 4.
A vote defeated Judge Burdick's motion to delete the penultimate sentence. He then moved that the penultimate sentence be amended to: If the contempt charged involves a personal attack upon the judge, he is disqualified upon objection from presiding at the trial or hearing.
Judge Burdick explained that part of the change was that the new language required the defendant to take affirmative steps to object, whereas the language it replaced required his affirmative consent; this way, if the defendant does not object, the court may proceed.
The chairman asked for a vote. Judge Smith said that Judge Muggli had asked that in his absence his vote be recorded as opposed to any amendment. All voted in favor of the amendment except Judge Smith, Judge Muggli, and Judge Ilvedson.
Judge Burdick moved that an addition be made to Rule 42(a):
If the contempt involves a personal attack upon the judge and conditions do not make it impracticable and delay will not injure public or private rights, the judge may request another judge to impose punishment or to dispose of the matter upon notice and hearing pursuant to subdivision (b).
Mr. Vogel seconded the motion. Those in favor were: Judge Burdick, Mr. Vogel, and Judge Murray; those opposed: Judge Smith, Mr. Graham, Mr. Shaft, Mr. Sand, Judge Ilvedson, and Judge Muggli.
Judge Burdick proposed stopping the addition at the word "punishment" and Mr. Sand said he would agree to that. Judge Burdick moved that a sentence be added to 42(a): "If the contempt involves a personal attack upon the judge, he may request another judge to impose punishment.", and that the rest be deleted. Mr. Vogel seconded the motion.
The chairman suggested setting the matter aside until Judge Muggli returned. Judge Smith moved to do so and John Graham seconded the motion. A vote was taken and the motion to defer action prevailed.
Judge Burdick said that Mr. Vogel and he were ready to report on No. 39. Mr. Vogel said he thought the Federal Rules of Appellate Procedure were preferable to the state rules and new amendments and that after examination the Committee should join with the Procedure Committee of the State Bar Association in rescinding both No. 37 and No. 39. (Mr. Sand was assigned No. 37.)
Mr. Vogel moved that the chairman appoint a subcommittee to study the proposed rules of appellate procedure (North Dakota Supreme Court draft No. 2) in the light of the comparable Federal Rules of Appellate Procedure and report back to this Committee at its next meeting as to the advisability of adopting those portions of the Rules of Appellate Procedure which relate to the subject matter of Rules No. 37 and No. 39. Judge Burdick seconded the motion.
The chairman appointed Mr. Vogel chairman of the subcommittee and also appointed Mr. Sand and Judge Burdick.
Mr. Graham read his Memorandum regarding the feasibility of drafting a rule regarding disqualification of trial judges for bias and prejudice, which Memorandum follows:
This memo resulted from Committee consideration of a letter, dated October 14, 1969, from Judge Heen to the Chairman requesting the Committee to consider adoption of a Rule modeled after 28 USCA § 144 (quoted at p. 9 of the minutes of the last meeting of this Committee). This writer was asked to prepare a report on the problems involved, and consequently, this memo is not accompanied by a draft rule. I believe the problems raised by Judge Heen's proposition can be more clearly outlined when viewed in the light of the legislative and legal history of § 144 and the North Dakota disqualification (affidavit of prejudice) statute, § 29-15-13.
Section 29-15-13 had its genesis in Chapter 51 of the Session Laws of 1899. As first enacted, the statute applied only to civil cases. It was extended to apply to criminal cases in 1921 (S.L. 1921, c. 129). The 1899 version required corroboration of the affidavit by the party's attorney of record, and one other disinterested witness. This requirement was deleted in 1919 (S.L. 1919, c. 1).
The parallel tables contained in volume 13 of the Century Code indicate that both the civil (Chap. 28-13) and the criminal disqualification statutes were derived from Chap. 51 of the 1899 Session Laws, but the civil statutes set out what the affidavit is to contain, including a statement that it is made in good faith and not for the purpose of delay. This language is contained in section 28-13-02 which was derived from a rule of district court (Rule No. 19). It seems strange that such a provision was not added to the criminal statutes on disqualification.
But perhaps not so strange in light of the following quote from State v. Garrison, 68 N.D. 71, 276 N.W. 693 (1937): "It was not the purpose of the statute (§ 29-15-13) to enable a party to have any one particular judge designated to try the cause. The purpose was to enable the party as a matter of right only to obtain a change of trial judge when he honestly believed the judge presiding over the term would be biased and prejudiced." 68 N.D. 74, parenthetical insertion and emphasis mine.
Section 29-15-19 of the Century Code provides that a party may exercise his "prerogative" under section 29-15-13 to change judges only one time.
The forerunner of 28 USCA § 144 was the Act, March 3, 1911, c. 231, § 21; 36 Stat. 1090, which provided, as does the present statute, for a certificate of the affiant's
counsel that the affidavit was made in good faith; for a statement of facts and reasons in the affidavit which indicated the personal bias of the judge against the affiant; and for the affidavit to be filed ten days before the term of court.
Section 144 is to be strictly construed in order to safeguard the judicial system from frivolous attacks. Town of East Haven v. Eastern Airlines, 304 F. Supp. 1223 (1969). However, for the purposes of the affidavit, the allegations therein are to be considered to be true, regardless of whether the trial judge knows them to be false. Berger v. United States, 255 U.S. 222; Tynan v. United States, 376 F.2d 761 (1967). Mere conclusory statements as to the attacked judge's bias and prejudice or the inability of the defendant to get a fair trial are insufficient. United States v. Thomas, 299 F. Supp. 494 (1968). Thus a federal judge against whom an affidavit has been filed must accept the facts as true, but he must thereafter make a decision as to their legal sufficiency, and if he finds them legally insufficient he should refuse to recuse himself. Wolfson v. Palmerieri, 396 F.2d 121 (1968).
The bias and prejudice alleged under § 144 must spring from an extrajudicial source, United States v. Grinnell Corp., 384 U.S. 582 (1966), and must be based on something other than the judge's rulings in the case. Hanger v. United States, 398 F.2d 91 (1968).
This short background seems to indicate that there are two philosophies regarding the intent of "affidavit of prejudice" statutes: The Federal view which seems to imply a statutory extension of the 5th and 14th Amendments' Due Process Clauses. That is, since it would be a violation of due process for a man to be tried by a biased judge, the procedure for preventing that (at least once) is set out by statute. The state rationale seems to be that a party to a criminal action has a right to dismiss one judge.
It seems to me that if the state rationale is to be maintained, that the requirement of an affidavit should be eliminated, and a judge should be dismissed on the basis of a peremptory challenge similar to the one used to discharge jurors. This would remove the temptation for the affiant to perjure himself.
Finally, however, I find myself in sympathy with the Federal practice, since a party has an ultimate source for allowing complaint about bias in the Due Process Clauses of the Federal and State Constitutions. This being true, why allow a party to slow up the judicial process unless he is willing to set forth reasons for removal of a trial judge, and have his attorney certify that the affidavit is not filed for delay. I must admit that these views are stated without adequate knowledge of the reasons for the trial attorneys' stand (see comments of Mr. Vogel in minutes of last meeting) on this problem.
The chairman appointed a subcommittee, Mr. Sand, Mr. Vogel, and Mr. Graham, to study the matter further, and he asked Judge Burdick to send his ideas to them.
John Graham then read Judge Heen's letter of October 14, 1969, to Judge Erickstad, as follows:
N.D.C.C. 29-15-13 provides in part as follows:
When either party to a criminal action pending in any of the district courts of this state shall file an affidavit stating that he has reason to believe and does believe that he cannot have a fair and impartial trial or hearing before the judge presiding at the term of court at which such action is to be tried, by reason of the bias and prejudice of such judge, the judge shall proceed no further in the action and thereupon shall be disqualified to do any further act in the cause. * * *
With the advent of the many refinements of criminal procedure as pronounced by the Supreme Court of the United States, it is my belief that many defendants are filing affidavits of prejudice that have no basis in fact against presiding judges. There are many reasons why a defendant takes this course of action, not the least of which is that delay is always beneficial to the defense.
The filing of an unsupported affidavit of prejudice has a disruptive effect on disposition of criminal calendars in that the assigned judge must interrupt his own schedule at some point to handle the assigned case.
It goes almost without saying that certainly a judge if prejudiced should not preside at any stage of the proceeding. However, it would appear that the federal rule does recommend itself. 28 U.S.C.A., Section 144, provides:
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.
Cases construing 28 U.S.C.A., Section 144, are, among others, U.S. v. Devlin, 284 P. Supp. 477; Grimes v. U.S., 396 F.2d 331.
I request that the committee considering rules for criminal procedure of which you are chairman consider this matter of removal of the trial judge on the ground of bias and prejudice.
Very truly yours,
S/ Douglas B. Heen
P.S. I am aware that Section 144 is not a rule of federal procedure, but it would seem that a rule similar to Section 148 would have application to North Dakota's contemplated rules of criminal procedure.
Rule No. 21 was read by Mr. Glaser, with the change in 21(c) proposed by Judge Lynch in his letter of December 5, 1969, which letter and Rule follow:
I am enclosing a copy of Rule 21 with suggested deletions and additions.
I suggest these changes to accomplish the following:
1. A judge ordering the transfer continues to preside and try the case. This will help insure the prompt and orderly disposition of the criminal case without the necessity of imposing the case on another District Judge.
2. A change of venue does not operate as a change of judge. A defendant making a motion for a change of venue should not, as a fringe benefit so to speak, also automatically secure a different judge to try the case without having to file an affidavit of prejudice.
I hope your committee will consider the suggestions.
Very truly yours,
S/ W. C. Lynch
Rule 21. Transfer from the County for Trial - p. 1 of 2
(a) For Prejudice in the County. [adopted 9/26/68]
The court upon motion of the defendant shall transfer the proceeding as to him to another county whether or not such county is specified in the defendant's motion if the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial.
(b) Transfer in Other Cases. [adopted 9/26/68]
For the convenience of parties and witnesses, and in the interest of justice, the court upon motion of the defendant may transfer the proceeding as to him to another county.
(c) Proceedings on Transfer. [adopted 9/26/68]
When a transfer is ordered the court shall transmit to the court to which the proceeding is transferred all papers in the proceeding or duplicates thereof and any bail taken, and the prosecution shall continue in that county. Whenever the place of trial of a criminal action is changed as provided for in this rule, the prosecuting attorney of the county or any other person appointed to prosecute where the action was commenced shall prosecute the case for the state and the judge ordering the transfer shall preside at the trial. [DELETED: The court to which the action is transferred shall have full jurisdiction and authority to hear, try, and determine the same, and upon conviction, to impose the punishment prescribed by law.] The proceeding shall be conducted in all respects as if the action had been commenced in said court and the costs accruing from a change of the place of trial and the costs of the trial shall be paid by the county where the offense was committed or otherwise as provided by law.
Mr. Shaft read Judge Lynch's letter to Judge Erickstad of June 25, 1969, as follows:
Whereas motions for change of venue used to be a rarity, we now find such motions made almost with regularity in criminal cases.
When a motion for change of venue is granted, I have observed the following:
1. There is a resultant delay in the trial of the case. Sometimes a matter is transferred to a county that doesn't have a term of court for five or six months, for example, after the order for the change of venue is made. This happened just last month in a case I tried on a change of venue. As a result, the witnesses' memories were not as sharp as they should have been if the case were tried promptly and the prosecution was unable to call several witnesses who apparently had left the state in the interim. This certainly is not good for efficient law enforcement.
2. Although only a motion for change of venue is made, it resulted in also a change in the presiding judge. In other words, the defense was successful in obtaining a different judge to try a case even though ostensibly only a change of place of trial was sought.
The problems arising out of changes of venue as outlined could be solved by providing in our Rules of Criminal Procedure that upon a change of venue, the judge who grants the change of venue also presides at the trial of the case regardless of what county the case is transferred to. This should result in a prompt disposition of the trial and this would also prevent the Defendant from securing a different judge merely by obtaining a change of venue.
I would appreciate it if you would bring this to the attention of your committee for their consideration and, if needs be, I would be glad to meet with the committee
and explain to them the practical problem that seems to be arising with increasing frequency.
Very truly yours,
S/ W. C. Lynch
During the discussion that followed, Mr. Vogel said he was willing to work on that committee now. Judge Ilvedson and Judge Burdick were the only ones agreeing with Judge Heen's letter regarding stating reasons in affidavits of prejudice. The chairman said that the majority seemed to prefer something other than an affidavit of prejudice, perhaps a demand, motion or certificate for change of judge.
Judge Burdick said that whatever is done should be signed by the client, so the attorney would not be acting without the client's knowledge. It should be limited to the client himself to make the demand and he should sign the request.
The chairman appointed Mr. Graham chairman of a subcommittee, to include Mr. Sand, Mr. Vogel, and Mr. Glaser. They are to bring back not only a report, but a proposed draft of Rule 21, taking into consideration Judge Lynch's recommendations, the time of filing, and how many.
The chairman then directed the meeting back to Judge Murray's Rule 42 on contempt.
Judge Burdick read parts of Offutt v. U.S., 348 U.S. 11, and parts of Cooke v. U.S., 267 U.S. 517, which pertained to Rule 42(a) and said he would be satisfied if a note were written to this rule calling attention to the Offutt and Cooke cases. Judge Muggli suggested referring to the Chicago case, too, when it is decided.
Judge Burdick said that if the committee would accept that, he would withdraw his motion to amend [page 9], which had been seconded by Mr. Vogel. The chairman said the author of the proposed bill, Judge Murray, would have the responsibility to prepare the note.
Mr. Graham made the motion to reconsider the action by which the committee adopted the amendment to subdivision (b) of Rule 42, and Judge Smith seconded it. There followed a discussion on the definitions of the words "disrespect" and "criticism".
Those in favor of the motion to reconsider were: Judge Muggli, Judge Smith, Mr. Graham, Mr. Glaser, and Judge Ilvedson. Opposed were: Judge Burdick, Mr. Vogel, Mr. Shaft, Mr. Sand, and Judge Murray. To break the tie, the chairman cast his vote in favor of the motion to reconsider and said he would rule that the committee was back to 42(a) and (b) as originally signed and filed.
Mr. Graham moved to amend Rule 42(b) by removing "or criticism of", and Judge Muggli seconded the motion. Mr. Graham said "criticism" is a nebulous term and no one can be sure what "personal attack" means. Judge Burdick read from the Offutt case to show those are legally acceptable phrases.
Judge Muggli withdrew his second of the above motion and Mr. Graham withdrew the motion and moved to accept the draft of 42(b) and adopt 42(b) as submitted by Judge Murray. Judge Muggli seconded the motion.
After discussion, the chairman called for a vote and those in favor were: Judge Muggli, Judge Smith, Mr. Graham, Mr. Shaft, Mr. Glaser, and Judge Ilvedson. Opposed were: Judge Burdick, Mr. Vogel, Mr. Sand, and Judge Murray. The motion prevailed and Rule 42(a) and (b) was returned to its original language.
Judge Smith made a motion to adopt Rule 42 as submitted by Judge Murray, and Judge Muggli seconded the motion. All were in favor except Judge Burdick.
The meeting adjourned, reconvening on Saturday morning, March 14, 1970. The following members were present: Judge Smith, Judge Muggli, Judge Burdick, Mr. Vogel, Mr. Graham, Mr. Shaft, Judge Erickstad, Mr. Glaser, Mr. Sand, Judge Ilvedson and Judge Murray. David Axtmann, law clerk, attended in place of William Engelter.
Judge Burdick asked that his reasons for opposing the adoption of Rule 42 be noted in the minutes. He said the sentence--"The defendant is entitled to a trial by jury in any case in which the statute so provides."--carries the implication that trial by jury may not otherwise be proper. It fails to recognize the constitutional requirement of trial by jury unless waived by the defendant or the accused contemner in cases where the punishment may exceed six months in jail or where the punishment for contempt carries a statutory punishment in excess of six months. This sentence is not applicable at the present time in North Dakota, because of the absence of any statute so providing. The penultimate sentence--"If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant's consent."--unnecessarily requires the disqualification of a judge even though the disrespect or criticism of the judge is merely incidental to the contemptuous conduct. For example, the contemner who distributes the statement among the jurors during recess claiming to relate the true facts of the case followed by a statement that this evidence was was improperly excluded by the court, with perhaps name-calling and the criticism of the judge merely incidental, the judge should not be disqualified from presiding at the trial of the contempt proceeding merely because the contemptuous conduct involves criticism of the judge. Furthermore, Rule 42(b) is couched in language describing the contemner as the defendant, which fails to differentiate the defendant in a criminal action from the accused contemner in the contempt proceeding and seemingly provides for a rule of contempt only against a defendant in a criminal action. He said this is the import of the third sentence of subdivision (b)--"The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the prosecuting attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest." Judge Burdick said there may be other reasons also why this rule should be reconsidered in the light of new developments in criminal law.
Judge Smith said he agreed with Judge Burdick and that he had voted as he did the previous day in order to be in a position to move to reconsider.
The chairman then called upon Mr. Vogel for his report on Rule 45, Time, and Mr. Vogel distributed copies of the Federal Rule, saying the only changes he wanted to make were the addition of Lincoln's birthday and Good Friday to the list of holidays in 45(a). Mr. Vogel moved to adopt Rule 45(a) with the proposed additions, and Judge Muggli seconded the motion.
The chairman said, regarding the enlargement feature of Federal Rule 45(b), that we would not be making an improvement by using the wording of civil rules. He said we are going to have to start reviewing all the rules in which time periods were put. He called for a general discussion, saying that the court has had adverse experience on the civil rules in this type of issue. He said if the rule is limited to the civil wording, it would restrict the power of the court to extend time, but that perhaps the committee thought it should be restricted.
Judge Burdick made a substitute motion that we adopt Rule 6(a) of the Rules of Civil Procedure as our Rule 45(a). Mr. Glaser seconded the motion. The chairman called for discussion of the substitute motion, the question being whether we want to pattern our language after the civil rules or whether we should try to stay with the federal. Those in favor of the motion were: Judge Burdick, Mr. Glaser, Mr. Shaft, and Mr. Graham. Opposed were: Mr. Sand, Judge Ilvedson, Judge Muggli, Mr. Vogel, Judge Smith, and Judge Murray. The motion was defeated.
Judge Burdick moved to delete the last sentence of Federal Rule 45(a), which enumerates legal holidays. Judge Muggli seconded the motion and it passed.
The committee then voted on the main motion by Mr. Vogel to adopt Rule 45(a) as amended and the motion passed. Rule 45(a) was adopted as amended (deleting enumeration of holidays).
Mr. Vogel moved to adopt 45(b) of the present Federal Rules without change. Mr. Sand seconded the motion. (It was noted the federal numbering system has been retained for this rule.)
Judge Burdick moved to amend Rule 45(b) by changing the first clause to conform to the first clause of Rule 6(b) of the North Dakota Rules of Civil Procedure: "When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time,"--then continuing with the Federal Rule--"the court for cause shown may at any time in its discretion . . ." Judge Muggli seconded the motion. After a lengthy discussion, a vote was taken. Those in favor of the motion were: Judge Burdick, Judge Murray, Mr. Glasser, Mr. Shaft, and Mr. Graham. Opposed were: Judge Muggli, Mr. Vogel, Mr. Sand, Judge Smith, and Judge Ilvedson. The chairman broke the tie by ruling that the motion failed.
Judge Burdick moved that the motion to adopt Rule 45(b) be deferred to the next meeting. The motion was seconded by Mr. Graham and it passed.
Mr. Vogel moved to retain letter (c) of Rule 45 without a rule. Judge Smith seconded the motion and it passed.
Mr. Vogel moved to adopt subdivision (d) as submitted. Judge Burdick seconded the motion and it passed.
Mr. Vogel moved to adopt (e). Judge Smith seconded it and, after a brief discussion in which Judge Burdick expressed some doubt, the motion passed.
Judge Smith questioned the elimination of the former subdivision (c) and after discussion, Mr. Sand moved that instead of leaving (c) blank, we use same language used in Federal Criminal Rules. Judge Ilvedson read Federal Criminal Rule 45(c), which follows:
(c) Unaffected by Expiration of Term. The period of time provided for the doing of any act or the taking of any proceeding is not affected or limited by the expiration of a term of court. The expiration of a term of court in no way affects the power of a court to do any act in a criminal proceeding.
Mr. Vogel then seconded Mr. Sand's motion that 45(c) be restored in language of original 45(c). After discussion, the motion was withdrawn and Judge Burdick made a substitute motion to adopt the language of Civil Rule 6(c), changing the word "civil" in the last line to "criminal". Judge Murray seconded the motion and it passed.
The chairman said that was as far as we could go on Rule 45 and that we would consider 45(b), then the whole rule and its adoption at the next meeting.
The time for the next meeting was tentatively set for June 18.
The chairman called on Mr. Sand in regard to Rule 47, Motions. Mr. Sand read Judge Morris's report and moved to adopt Rule 47 as submitted. Mr. Glaser seconded the motion.
Judge Burdick questioned the use of the word "particularity" and said he thought the second sentence of Civil Rule 7(b)(1) should be included in Rule 47 along with Civil Rule 7(b)(2). He then made a motion that Rule 47 read as follows:
(1) An application to the court for an order shall be made by motion which, unless made during a hearing or trial, shall be made in writing, shall state the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. The motion may be supported by affidavit.
(2) The rules applicable to captions, signing, and other matters of form of pleadings apply to all motions and other papers provided for by these rules.
Judge Muggli seconded the motion and it carried.
Thereupon the meeting adjourned.
Lorna L. Bender, Secretary