MINUTES OF MEETING
Joint Committee of the Judicial Council
and the State Bar Association
on Rules of Criminal Procedure
March 29, 1974
The meeting was called to order at 10 a.m. by Justice Robert Vogel, Chairman.
Hon. Robert Vogel, Chairman
Hon. Gerald Glaser
Hon. Larry Hatch
Hon. R. C. Heinley
Mr. Kent Higgins
Hon. Norbert Muggli
Hon. William S. Murray
Hon. Harry Pearce
Mr. Roger Persinger
Mr. Paul Sand
Hon. Kirk Smith
Jon Nelson, Law Clerk
Linda Ohlsen, Secretary
ARREST WARRANT OR SUMMONS UPON COMPLAINT - RULE 4
Justice Vogel asked the committee if they felt there should be any action taken on this matter. Judge Glaser stated that part of the problem is that some of the judges seem to think that they should always use a summons unless something tells them they should use a warrant. Normally, in a felony case they should use a warrant.
Judge Smith felt that the committee should consider making amendments to the explanatory notes rather than the rules themselves. This, he stated, would eliminate the promulgation process.
Judge Murray stated that he is concerned about the practicality of changing the new code volumes as it will be another year before any changes will come out in the next volumes. Justice Vogel said that perhaps the Bar Association could send out advance sheets for the rules manual itself. However, Judge Glaser stated that if that technique is used then the code volume is immediately made unreliable. He said that the committee should try to make any changes so that the code people could pick them up. The changes could be made effective as the laws are made effective July 1.
It was suggested by Justice Vogel that this committee and Mr. Leonard Bucklin's Procedure Committee can submit the changes at one time. He also stated that the two committees are presently and will continue to exchange agenda so that the two committees are not duplicating on their work.
Justice Vogel suggested to the committee that Judge Glaser and Judge Smith could attempt to draft a proposed addition or change to the explanatory note on Rule 4(a)(2) if that is the procedure the committee approves rather than changing the rule itself; or that the two gentlemen come up with either a change of the rule or the explanatory note.
COMPARISON BETWEEN RULES OF CRIMINAL PROCEDURE AND ABA STANDARDS
Justice Vogel stated that Professor Larry Kraft will attend the next meeting with his students and make the comparison between Rules of Criminal Procedure and the ABA Standards. Justice Vogel related to the committee that Professor Kraft is hopeful of getting a grant for almost $300,000 to study and improve the judicial system in North Dakota. The LEAA is granting large amounts of money to each state to set up an advisory committee. It was asked by Judge Murray what the ultimate goal and consequence of these comparative studies is. Justice Vogel replied that the purpose of spending the $300,000 is to prevail on public opinion in North Dakota to implement these. The Governor, Attorney General and Chief Justice make up the appointment committee which will be divided into Task Forces. Recommendations will be made to the Legislature from the Commission. They want to have the recommendations ready for this Legislative Session. Justice Vogel asked the committee if anyone wanted to serve on the committee of 50. Mr. Higgins replied that he would like to be a part of the committee.
Justice Vogel also stated that there do not seem to be a great number of discrepancies between the Standards and Goals of the National Advisory Commission and the Standards for Criminal Justice of the American Bar Association. The greatest inconsistency is in plea bargaining, as the ABA approves while the National Advisory Committee disagrees with plea bargaining. This is considered the most serious discrepancy.
COMPARISON OF THE AMERICAN LAW INSTITUTE STANDARDS GOALS AND AMERICAN BAR ASSOCIATION STANDARDS
Justice Vogel stated that while at a seminar for appellate judges he learned that in other states on this matter of discovery the Standards and Goals recommended compulsory mutual discovery in criminal cases regardless of whether the defendant initiates the discovery process or not. These Standards and Goals do recommend compulsory revolutionary discovery and three states have put that into effect already - Arizona, Florida and Texas. And he related to the committee that another rather revolutionary matter is that they're having a mandatory time schedule on
criminal cases with the idea that all felony cases be tried within 150 days after arrest and civil cases within 90 days.
Justice Vogel also reported on the proposed Federal Rules of Evidence. The federal government had a group studying proposed rules of evidence for the federal courts and were adopted under the Supreme Court's rule-making powers and were to go into effect July 30, 1973. Much to the surprise of some people, Congress acted and postponed the adoption of them and they have been modified somewhat and modified on the floor of the House again. Congress struck out everything that was in the rules regarding privilege.
Justice Vogel called on Mr. Paul Sand for his report on whether city warrants are to be enforced beyond the city limits. Mr. Sand reported that Mr. Howard Storman, as city attorney, raised the question and said that Rule 4(c)(1) could be construed to mean that a warrant issued by a municipality would have full effect beyond the lines or boundaries of the city. In responding to Mr. Storman, Mr. Sand stated that he made note of the fact that Section 40-18-08 N.D.C.C. which was superseded by this rule contained similar language. For instance, Mr. Storman seemed to indicate that the warrant may be executed in any county of the state by any peace officer of this state. Mr. Sand further stated that Section 40-18-08 also contained language which taken out of context would mean that a warrant issued by the city could be served and would have effect beyond the city limits. During the last Legislature there was an effort made to clearly give these warrants of arrest authority beyond the city limits. This, however, never passed.
Justice Vogel stated that in reading Rule 4(c)(1) it does seem to indicate that a city warrant could be used anywhere in the state. He stated that the committee should probably decide as a matter of policy whether that is good or bad and if it is bad, the committee should do something about it.
Mr. Sand also stated that the problem is that the rules do not address themselves to jurisdiction. They are procedural and the effect of a warrant goes to the heart of jurisdiction. Judge Glaser reminded the committee that even if the committee changes the rule a municipal judge cannot issue a warrant for non-criminal traffic offenses. He can only issue a warrant for a DWI offense and a reckless driving offense.
Regarding standards for municipal judges Justice Vogel said that Colorado has a similar problem to ours as they also have rural counties. In that state they have minimum requirements for their municipal judges. He must be over 21 years of age and under 70 years of age. He must also take a special course. Also, if no municipal judge is elected, the district judge appoints a municipal judge.
In discussion regarding the amending of Rule 4(c)(1) or the explanatory note thereto, Justice Vogel stated to the members of the committee
that the Supreme Court adopted the rules not the explanatory notes. Judge Pearce MOVED that the committee bring the matter of city warrants to the attention of the Legislative Council and to take no further action on the rule or the explanatory note at this time. Mr. Kent Higgins seconded the motion. Motion CARRIED.
DISCUSSION OF LEGAL FORMS PRODUCED BY THE GLOBE GAZETTE PRINTING COMPANY TO BE USED WITH NORTH DAKOTA RULES OF CRIMINAL PROCEDURE
Justice Vogel asked the members of the committee if there were any comments in regard to these forms. He assured the committee that he was not suggesting that the committee endorse the forms but that they look for any mistakes on the forms.
DISCOVERY AND INSPECTION - RULE 16(c)
After brief discussion of Rule 16(c), it was MOVED by Mr. Higgins that further discussion be tabled until the next meeting when the full committee would be present (Mr. Wallace Berning and Judge Roy Ilvedson). Judge Hatch seconded the motion. Motion CARRIED.
HOW ARE THE NEW RULES WORKING?
Chairman of the committee, Justice Vogel, requested that each member present give a 1 to 3 minute report relating their personal opinion of how the rules are working in their given situations. Judge Glaser stated that the rules have had no great impact up to this point. Insofar as plea bargaining is concerned, he has always allowed a certain amount of plea bargaining and has had no bad effects from it.
Judge Heinley reported that he has had limited contact with the rules and indicated that it will take time before everyone becomes familiar with the rules. Judge Smith had been most concerned with Rule 46 "bail". He stated that the rule is working out alright; and that plea bargaining is also working out well. He further stated that many of the other rules have not been invoked into practice yet. He has had no omnibus hearings as yet.
Mr. Sand reported to the committee that he has not had much feedback as yet. However, he has been working on making changes in statutes superseded and most of them have been changed before volume 5A N.D.C.C. was produced.
Mr. Persinger has not had any contact with the rules and therefore could not report on their effect.
Judge Hatch also stated that he had no experience with the omnibus hearings. As to plea bargaining under the rule, he finds that counsel should discuss this with the judge in chambers with the court reporter and the defendant present, rather than relating it to the judge for the first time in open court. Judge Smith felt that following an in-chambers meeting with counsel and the defendant present, the judge would feel bound by what has been said in the chambers. Judge Hatch, however, stated that there would be no decision made in chambers. The judge
would merely listen to what counsel has to say in regard to plea bargaining. Judge Hatch also clarified the fact that he is speaking strictly of jury matters.
Judge Muggli had to leave the meeting early, however, Justice Vogel reported that he spoke with Judge Muggli before his departure and he stated that he had no omnibus hearings and was well satisfied with plea agreements.
Judge Murray said that he could not present any competent information on the problem since he is not in the active practice of law.
Jon Nelson reported that he talked to a few people in the state's attorneys office in Grand Forks and they have a very favorable outlook on plea agreements.
The committee came to the conclusion that plea bargaining should not be eliminated. As Judge Smith explained, the development that came into plea bargaining from the ABA Standards is that it gave it a stamp of legitimacy to matter which used to be done subrosa. The ABA also gave the judge an area of proper response and gave a corresponding right of action on the part of the defense.
PRELIMINARY EXAMINATION - RULE 5.1(b) DISCHARGE OF THE DEFENDANT
Judge Glaser presented to the committee a problem that he came across. He agreed with the defendant and dismissed the charge on a later written order. His question is how does the prosecuting attorney orally have this reviewed. He feels this is a problem and a note should be made to change the rule.
SECTION 12-60-11 N.D.C.C. ENFORCEMENT OFFICERS TO SEND FINGERPRINTS AND DESCRIPTIONS OF FELONS TO THE BUREAU - REPORT OF THE BUREAU TO ARRESTING OFFICER
Judge Glaser also related to the committee a further problem involving this section of the North Dakota Century Code. He stated that rather than changing the rule, Rule 4(a)(2), a change in this section could be recommended. That is, if an individual is arrested under a warrant, you take his fingerprints but if it is not a warrant you would not take the fingerprints unless he is convicted. There would be no need for the record or rap sheet if the individual is not convicted. Judge Glaser MOVED that the committee recommend to the Legislature that the two words "or convicted" be added to Section 12-60-11 N.D.C.C. Seconded by Judge Murray. Motion CARRIED.
LIST OF STATUTES SUPERSEDED AND CONSIDERED
The following statutes were discussed and stand as listed below:
27-10-03 Superseded for criminal process only
27-10-04 Superseded for criminal process only
27-10-05 Superseded for criminal process only
27-10-16 Superseded for criminal process only
28-18-01 Second sentence superseded for criminal process only
33-07-17 Superseded in part by Rule 30
33-10-03 Superseded for criminal process only
Discussion followed in regard to Section 33-07-17 which has been in part superseded under Rule 30(d) but the publication of the pocket part shows that it is not superseded either in whole or in part. The committee felt that an appropriate reference under N.D.C.C. Section 33-07-17 would be "see Rule 30(d) N.D.R.Crim.P.," also cross-reference to N.D.C.C. Section 33-12-23.1. The committee felt that they should possibly speak to the code revisor regarding this reference. Mr. Sand MOVED that the committee amend the explanatory note of Rule 30 to show that Section 33-07-17 is superseded for criminal process only instead of superseded as it now appears, and that the necessary procedures be carried out to accomplish this. Judge Smith seconded the motion. Motion CARRIED.
Rule 16, Rule 16(c), and Rule 44 will be discussed at the next meeting as the members appointed to revise these rules were not present at this time. However, Mr. Higgins prepared a Proposed Change to Comment, Rule 16, which were handed to each member present. Suggested additional comments in regard to Rule 44 were also handed to each member present by Jon Nelson. (See Exhibit A and B)
NEXT MEETING DATE
Regarding a date for the next meeting, it was suggested that the committee meet in the fall after the State Bar Association has had its meeting. The date agreed upon was September 27, 1974, at 10 a.m. in the Supreme Courtroom.
A motion was made to waive reading of the minutes of December 19, 1973. A motion was made and CARRIED approving the minutes of December 19. The committee stands in adjournment until September 27 at 10 a.m.