MINUTES OF MEETING
Joint Procedure Committee
October 29-30, 1992
CALL TO ORDER
The meeting was called to order at approximately 9:00 a.m., October 29, 1992, by Justice Beryl J. Levine, Chairperson.
Justice Beryl Levine
Honorable Gerald Glaser
Honorable Ronald Hilden
Honorable Lawrence Leclerc
Honorable Kirk Smith
Honorable James Wright
Professor Larry Kraft
Ms. Patricia Ellingson
Mr. Robert Heinley
Mr. John Kapsner
Mr. James Lamb
Mr. Ronald McLean
Mr. James Odegard (10/30/92 only)
Mr. David Peterson (10/30/92 only)
Honorable Wallace Berning
Honorable Bruce Bohlman
Honorable Gail Hagerty
Honorable James O'Keefe
Mr. Dwight Kautzmann
Ms. Cathy Schmitz
Mr. Gerhard Raedeke, Staff Attorney
Ms. Cathy Arneson, Secretary
APPROVAL OF MINUTES
Judge Leclerc MOVED that the minutes of the Joint Procedure Committee meeting of November 7-8, 1991, be approved as submitted. Judge Hilden seconded. Motion CARRIED.
Justice Levine introduced the Committee's new staff attorney, Gary Raedeke, and announced the appointment of the new members, Judge Bohlman, Judge Wright, Judge Hagerty and Ms. Ellingson. Each member of the Committee was presented a copy of the ABA Judicial Administration Division, "Standards Relating to Trial Courts."
Committee membership was reviewed. Members of the Committee suggested names of people who would like to serve on the Committee. Appointments to the Committee are for three-year terms. By custom and practice, some judges have become life members. The Committee indicated that if a member misses three consecutive meetings, or if a member's term is about to expire, inquiry should be made whether the member wants to remain on the Committee.
The Committee questioned whether continuing education credits could be obtained for attendance at Committee meetings. Committee members expressed a desire to meet in Fargo.
PROPOSED CONTEMPT LEGISLATION
The Committee reviewed the contempt proposal, chapter 27-10.1, that was approved by the special subcommittee on contempt. Underscoring in the agenda material, which contains proposed chapter 27-10.1, indicates language added since the Committee last studied the proposal.
PROPOSED SECTION 27-10.1-01, CONTEMPT OF COURT, (PAGES 37-38 OF THE AGENDA MATERIAL)
Proposed section 27-10.1-01 defines "court," "contempt of court," "punitive sanction" and "remedial sanction."
The Committee discussed the ramifications of defining "court" as a "court of record." The applicability of proposed chapter 27-10.1 to municipal courts, juvenile courts and referees was discussed.
The Committee considered the various paragraphs defining contempt in subsection 2 of proposed section 27-10.1-01. The Committee discussed the definition of contempt in paragraph (b) which provides as follows:
"Nonpayment of a sum of money ordered by the court to be paid in a case whereby law execution cannot be awarded for the collection of the sum."
The Committee was concerned that the language is inconsistent with statutes that allow both contempt and execution remedies. (Contempt and execution are generally mutually exclusive remedies unless a specific statute specifies otherwise.) The
Committee noted that the purpose of the proposed language is to prevent contempt proceedings from being used to enforce ordinary money judgments. The Committee determined that the language is necessary. Some orders may not be capable of being reduced to a money judgment subject to execution. The Committee also determined that if a specific statute provides for both contempt and execution remedies, the specific statute will govern over proposed section 27-10.1-01(2)(b). The language currently in section 27-10-03(3) is identical to the language proposed in paragraph (b). No motion was made.
The Committee discussed the definition of contempt in paragraph (c) which provides as follows:
"Disobedience, resistance, or obstruction of authority, process, or order of a court or other officer including a referee or magistrate."
The Committee decided not to include an express reference to masters. "Officer" refers to officer of the court. The Committee noted that attorneys are officers of the court. No motion was made.
The Committee considered the definition of "punitive sanction" and. "remedial sanction" in subsections 3 and 4 of proposed section 27-10.1-01. There was concern about defining punitive sanction as a past contempt of court because the contempt could be occurring presently. There was also concern that the second and third sentence of subsection 3 and 4 conflict with the first sentence. The first sentence of section 3 and 4 is definitional, while the second and third are descriptive. Case law uses descriptive terminology. Mr. Kapsner MOVED to amend subsection 3 and 4 of proposed section 27-10.1-01 as follows:
3. "Punitive sanction."
means a sanction imposed to punish a past contempt of court for the purpose of upholding the authority of the court. A sanction of imprisonment is punitive if the sentence is for a definite period of time. A sanction requiring payment of a sum of money is punitive if the sanction is not conditioned upon performance or nonperformance of an act, and if the sanction's purpose is to uphold the authority of the court. by punishing a past contempt of court.
4. "Remedial sanction."
means a sanction imposed for the purpose of terminating a continuing contempt of court. A sanction of imprisonment or payment of a sum of money is remedial if the sanction is conditioned upon performance or nonperformance of an act
required by court order. A sanction requiring payment of a sum of money is remedial if the sanction is imposed to compensate a party or complainant, other than the court, for loss or injury suffered as a result of the contempt.
Judge Glaser seconded. Motion CARRIED.
PROPOSED SECTION 27-10.1-02, POWER OF COURT TO PUNISH FOR CONTEMPT OF COURT, (PAGE 39 OF THE AGENDA MATERIAL)
The Committee discussed what powers a municipal court, a juvenile court, and a referee should have to handle contempt. The proposed language, in subsection 2 of proposed section 27-10.1-02, gives judicial referees the power to impose remedial contempt sanctions and to punish contempt summarily. The Committee also discussed whether subsection 2 should apply to magistrates. Mr. McLean MOVED to delete the underscored language in subsection 2 and to incorporate the language currently found in section 27-10-22; so that subsection 2 will provide as follows:
Upon the trial of an action or issue by a referee appointed by the court, the commission of any offense which constitutes contempt of court must be deemed contempt of the court appointing such referee, and the same may be punished by the court in the manner and upon the proceedings in this chapter provided, except that the offense may be presented to the court by a report of the referee instead of by affidavit.
Mr. Kapsner seconded. MOTION carried. It was noted that Administrative Rule 13 (5) (b) refers to the exercise of "civil" contempt powers by judicial referees. The Administrative Rule may need amending at a later date.
PROPOSED SECTION 27-10.1-03, PROCEDURE, (PAGES 40-42 OF THE AGENDA MATERIAL)
The Committee considered the nonsummary procedure for remedial sanctions in proposed section 27-10.1-03(l)(a). The Committee discussed whether the degree of proof required for imposition of a remedial sanction should be included in the statute. The proposed statute does not specify the degree of proof required for finding contempt. No one moved to specify in the proposed statute the degree of proof required.
Mr. McLean MOVED to delete lines 12 through 14 as follows:
"Inability to comply with an order is a defense to a
remedial sanction based upon violation of that order." Judge Wright seconded. Motion CARRIED.
Judge Leclerc MOVED to delete lines 7 through 9 as follows:
"If a person aggrieved by a contempt of court fails to seek a remedial sanction the court may act on its own motion." Mr. Lamb seconded. Committee members wanted to ensure that the court is able to act on its own motion regardless of whether the aggrieved person takes action. Mr. McLean MOVED to amend the motion to include an amendment to line 3 so that the proposed statute will read as follows: The court on its own motion or a person aggrieved by contempt of court may seek imposition of a remedial sanction for the contempt by filing a motion for that purpose in the proceeding to which the contempt is related. Mr. Kapsner seconded. Motion CARRIED.
The Committee discussed whether a right to counsel should be granted in remedial sanction cases where a jail sentence is imposed. The proposed statute does not provide for a right to counsel in remedial sanction cases. No one moved to include the right.
The Committee considered the nonsummary procedure for punitive sanctions in proposed section 27-10.1-03(l)(b). The Committee discussed the provisions regarding disqualification of a judge in contempt proceedings. Mr. McLean MOVED to adopt the underlined portion on lines 30 through 36 which provide as follows:
"A judge is disqualified from presiding at the trial of an alleged contemnor if a reasonable likelihood or appearance of bias or prejudice will otherwise exist, if the contempt alleged involved disrespect or criticism of the judge, or if the judge has personal knowledge of disputed evidentiary facts."
As part of his motion, Mr. McLean also MOVED to delete the language with overstrikes on lines 25-30 concerning disqualification of a judge. Mr. Heinley seconded. Motion CARRIED.
Mr. McLean MOVED to adopt the underlined language on lines 36 and 37 concerning trial by jury and to delete the remaining underlined language in lines 37 and 38. Under the motion, the proposed statute will read as follows: "The person charged is entitled to a trial by jury.
and is guilty of a class B misdemeanor if convicted." Mr. Heinley seconded. Motion CARRIED.
The Committee considered the summary contempt procedure in subsection 2. Committee members questioned the proposed language. Judge Leclerc MOVED to delete language in lines 48-50
which provides as follows: "and only for the purpose of preserving order in the court and protecting the dignity of the court." The motion was seconded by Judge Glaser. Committee members pointed out that the words "preserving order and protecting the dignity of the court" qualify the authority of the court; so there is no conflict with the definition of punitive sanction. The motion failed. Judge Leclerc wanted his vote recorded. The Committee noted that summary procedure is not needed for remedial sanctions because the procedure is basically summary.
The Committee considered subsection 3 which concerns appeal. Mr. McLean MOVED to adopt lines 51 through 56 which provide as follows:
"3. Appeal. An appeal may be taken to the supreme court from any order or judgment finding a person guilty of contempt. Certification under Rule 54(b), N.D.R.Civ.P., is not needed to appeal under this subsection."
Mr. Lamb seconded. The Committee questioned the time period for appeal, but did not think a statute should specify the appeal period. Motion CARRIED.
PROPOSED SECTION 27-10.1-04, SANCTIONS, (PAGES 43-44 OF THE AGENDA MATERIAL)
The Committee considered the remedial sanctions authorized in subsection 1. Mr. McLean MOVED to delete lines 23 through 29 which provide as follows:
"When remedial sanctions are imposed, the court, upon such terms as justice requires, shall issue an order discharging the person from prison if the person is unable to pay the sum required to be paid or if the person is unable to perform the act or duty required to be performed in order to entitle the person to be released."
Judge Leclerc seconded the motion. Committee members thought that the statutory provision was unnecessary. Motion CARRIED.
The Committee considered the punitive sanctions authorized in subsection 2. Mr. McLean MOVED to increase the penalty for a nonsummary punitive sanction in subdivision (a) as follows:
A court, after a finding of contempt of court in a nonsummary procedure under section 27-10.1-03(l)(b), may impose for each separate contempt of court a fine not exceeding
five hundred one thousand dollars or imprisonment in
the county jail for not more than
thirty days one year or both.
Judge Leclerc seconded. Motion CARRIED.
The Committee considered the punitive sanctions authorized in summary procedure cases. Mr. Kapsner MOVED to decrease the penalty from thirty days to ten days. Mr. Heinley seconded. Motion failed.
The Committee discussed whether punitive sanctions should be classified as class A or class B misdemeanors. Mr. McLean MOVED to amend line 35 through 37 and line 41 through 43 to provide that in a nonsummary procedure a person could be punished as prescribed for a class A misdemeanor; and that in a summary procedure, a person could be punished as prescribed for a class B misdemeanor. Judge Hilden seconded the motion. Committee members thought that calling a contempt a class A or class B misdemeanor would signal that the rules of criminal procedure apply. Other Committee members had concerns about the legislature altering the prescribed punishments for class A and class B misdemeanors. Motion failed.
Committee members questioned whether the proposed statute should expressly provide that the rules of criminal procedure apply to punitive sanctions. Committee members noted that language in proposed section 27-10.1-03(b) suggests that the rules of criminal procedure apply to punitive sanctions. Mr. McLean MOVED to provide on line 25 of page 40 that the rules of criminal procedure apply to punitive sanctions except as provided in subsection 2. Committee members did not want the legislature stating what procedural rules apply. Motion failed.
The Committee instructed that the minutes reflect the Committee's intention that the rules of criminal procedure apply to nonsummary procedure punitive sanction cases. The rules will need to be considered at a future meeting to ensure that contempt is within their scope. Mr. McLean MOVED for reconsideration of the sanction authorized in summary contempt proceedings. Motion failed.
The meaning of subsection 3 was questioned by the Committee. The purpose of subsection 3 is to clarify that a punitive sanction may be imposed for past conduct even though the contempt is still continuing and may be the object of a remedial sanction. The two sanctions are not mutually exclusive.
CHAPTER 27-10, CONTEMPT
The Committee reviewed the current contempt provisions found in chapter 27-10, N.D.C.C. The Committee was concerned whether the provisions for orders to show cause and warrants of attachment should be repealed. Committee members wanted
authority to obtain the physical presence of the accused in remedial cases. For instance, Committee members did not want to necessitate filing a complaint in a child support case to obtain an arrest warrant. A subcommittee consisting of Judge Leclerc, Judge Smith, Judge Wright and Mr. McLean was appointed to review the current statutes in chapter 27-10, to determine which provisions in chapter 27-10 need to be saved, and to report back the next morning.
PROPOSED AMENDMENTS TO RULES OF CIVIL PROCEDURE
USAGE OF THE WORDS "SHALL" AND "MUST," (PAGE 106 OF THE AGENDA MATERIAL)
The Committee discussed the usage of the words "shall" and "must" when drafting rules. The guidelines prescribed by the Legislative Council were considered by the Committee. The Committee discussed the usage of the words "shall" and "must" in the federal rules. Staff was instructed to follow the federal rules by always using the word "shall" instead of "must" when drafting rules.
RULE 5 - SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS (PAGES 112-114 OF THE AGENDA MATERIAL)
An amendment to Federal Rule 5(d) expressly requires a party to file a certificate of service with all papers filed with the court that are served. Rule 5(e), Fed.R.Civ.P., was also amended to allow filing by facsimile transmission, if permitted by rules of district court according to standards established by the Judicial Conference of the United States. Judge Leclerc MOVED that Rule 5, N.D.R.Civ.P., not be amended. Professor Kraft seconded. Motion CARRIED.
RULE 15 - AMENDED AND SUPPLEMENTAL PLEADINGS (PAGES 118-119 OF THE AGENDA MATERIAL)
Rule 15(c), Fed.R.Civ.P., was amended to clarify that the rule does not preclude an amended pleading from relating back if permitted by the law that provides the statute of limitations applicable to the action. Rule 15(c) was also amended to provide that the notice requirements must be satisfied "within the period provided by law for commencing the action." The Committee's discussion did not suggest any limitations law that would afford a more forgiving principle of relation back than provided by rule. In addition, North Dakota Rule 4 does not specify a period of time for service of the summons and complaint as does the Federal rule. Judge Leclerc MOVED that Rule 15(c), N.D.R.Civ.P., not be amended. Judge Wright seconded. Motion CARRIED.
RULE 24 - INTERVENTION, (PAGES 122-123 OF THE AGENDA MATERIAL)
Rule 24(c), Fed.R.Civ.P., was amended to provide that the court must notify the state attorney general of a lawsuit involving the constitutionality of a state statute. The federal amendment also provides that a party challenging the constitutionality of a statute should remind the court of its duty to give notice. The amendment further specifies, however, that a party's failure to remind the court is not a waiver of any constitutional challenge.
Judge Hilden moved to amend Rule 24(c), N.D.R.Civ.P., as follows:
(c) Procedure. A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute gives a right to intervene. When the constitutionality of an act of the legislative assembly affecting the public interest is drawn in question in any action to which neither the state nor any agency or officer thereof is a party, the parties raising the constitutional issue shall notify the attorney general of the state. The attorney general may intervene
in the same manner as provided in this rule on behalf of the state.
Ms. Ellingson seconded. Motion CARRIED.
The Committee discussed the preparation of explanatory notes. Staff is to prepare explanatory notes for presentation with proposed rules. However, if the amendments to a rule are extensive, consideration of the explanatory note can wait until the next meeting.
Mr. Lamb MOVED to amend the language in the explanatory note for Rule 24 as follows:
Subdivision (c) was amended, effective ______________, to provide that a party challenging the constitutionality of a state statute shall notify the attorney general of the lawsuit.
Judge Leclerc seconded. Motion CARRIED.
RULE 35 - PHYSICAL AND MENTAL EXAMINATION OF PERSONS, (PAGES 126-128 OF THE AGENDA MATERIAL)
Rule 35, Fed.R.Civ.P., was amended to expand the scope of court-ordered examinations by substituting the phrase "suitably licensed or certified examiner" for "physician or psychologist." Mr. McLean MOVED to track the federal rule by amending North Dakota's rule as set forth on pages 126 through 127 of the agenda material. Judge Wright seconded. Motion CARRIED.
The Committee questioned whether the word "suitably" modified "licensed or certified" or whether "suitably" refers to the type of examination being sought. Judge Glaser MOVED to adopt the explanatory note as set forth on page 128 of the agenda material. Judge Leclerc seconded. Motion CARRIED.
RULE 44 - PROOF OF OFFICIAL RECORD, (PAGES 131-133 OF THE AGENDA MATERIAL)
Rule 44(a)(1), Fed.R.Civ.P., was amended to strike references to specific territories, two of which are no longer subject to the jurisdiction of the United States. Rule 44(a)(2), Fed.R.Civ.P., was amended to provide an exception to the rule's final certification requirement for foreign records. Under the amendment final certification is not necessary when the foreign record is attested and certified in accordance with an applicable treaty or convention.
Mr. Kapsner MOVED to amend North Dakota's Rule 44 to track the Federal rule and to adopt the proposed explanatory note as set forth on pages 131 through 133 of the agenda material. Judge Hilden seconded. Motion CARRIED.
The meeting adjourned at approximately 5:00 p.m.
OCTOBER 30, 1992, FRIDAY
Justice Levine reconvened the Committee at approximately 9:00 a.m. Two additional Committee members, Mr. Odegard and Mr. Peterson, were in attendance.
COMMITTEE REVIEW OF CHAPTER 27-10, N.D.C.C.
The Committee reviewed chapter 27-10, N.D.C.C., to determine which provisions should be repealed or amended.
27-10-03. ACTS PUNISHABLE AS CIVIL CONTEMPT
The Committee decided that section 27-10-03 should be repealed. The provisions are archaic or covered in proposed section 27-10.1-01.
27-10-04. PENALTY FOR CIVIL CONTEMPT--WHEN PARTY INJURED INDEMNIFIED INSTEAD OF FINE BEING IMPOSED
The Committee decided that section 27-10-04 should be repealed. Proposed section 27-10.1-04 contains the penalties for contempt and will replace section 27-10-04.
27-10-05. CORPORATIONS SUBJECT TO FINES
The Committee decided that section 27-10-05 should be repealed. Proposed section 27-10.1-04(l)(c) authorizes forfeitures and will apply to corporations.
27-10-06. CONTEMPT COMMITTED IN PRESENCE OF JUDGE PUNISHABLE SUMMARILY--ORDER IMPOSING PUNISHMENT
The Committee decided that section 27-10-06 should be repealed. Proposed sections 27-10.1-03(2) and 27-10.1-04(2)(b) contain provisions for punishing contempt summarily. Also, the procedure for remedial sanctions is essentially a summary procedure.
27-10-07. ORDER TO SHOW CAUSE OR WARRANT OF ATTACHMENT FOR CONTEMPT NOT COMMITTED IN THE PRESENCE OF THE JUDGE
The Committee decided to save section 27-10-07. Judge members explained that orders to show cause are efficiently and effectively used in child support cases. Several judges also explained that warrants of attachment are needed to secure the physical presence of alleged contemnors in remedial sanction cases. The Committee decided to add the phrase, "in addition to the procedure set out in section 27-10.1-03;" so that an order to show cause can be used as an alternative to motion practice, and a warrant of attachment can be used as an alternative to a criminal complaint and arrest warrant. Section 27-10-07 will read as follows:
27-10-07. Order to show cause or warrant of attachment for contempt not committed in presence of judge.
When In addition to the procedure set out in section 27-10.1-03, when an act punishable as a criminal or civil contempt by a court of record of this state is not committed in the immediate view and presence of the court, the court, upon being
by affidavit of the commission of the offense, shall may:
Make an order Order requiring the accused to show cause at a specified time and place therein specified why he the accused should not be punished for the alleged offense; or
2. Issue a warrant of attachment directed to the sheriff of any county where the accused may be found commanding
him the sheriff to arrest the accused and bring him the accused before the court forthwith or at a specified time and place therein specified to answer for the alleged offense.
27-10-08. NATURE OF PROCEEDINGS UPON ORDER TO SHOW CAUSE OR WARRANT OF ATTACHMENT FOR CONTEMPT
Section 27-10-08 provides that an order to show cause is equivalent to a notice of motion. The Committee decided to delete the last sentence of section 27-10-08. Section 27-10-08 will read as follows:
27-10-08. Nature of proceedings upon order to show cause or warrant of attachment for contempt. An order to show cause issued pursuant to section 27-10-07 may be made in the action or proceeding in or respecting which the offense was committed, either before or after the final judgment or order therein, and is equivalent to a notice of motion. The subsequent proceedings
thereupon must be taken in the action or proceeding as upon a motion made therein. If an attachment is issued to section 27-10-07, it must be deemed an original special proceeding by the state as plaintiff against the accused as defendant.
27-10-09. PAPERS TO BE SERVED ON A PERSON ARRESTED FOR CONTEMPT
The Committee decided to save section 27-10-09. The words "criminal" and "civil" are to be struck from the statute. Section 27-10-09 will read as follows:
27-10-09. Papers to be served on person arrested for contempt. When a person accused of
a criminal or civil contempt is arrested under a warrant of attachment, a copy of the
warrant and of the affidavit or report of a referee upon which it is issued must be served upon the accused.
27-10-10. AMOUNT OF UNDERTAKING FOR APPEARANCE OF ACCUSED MAY BE FIXED AND ENDORSED ON WARRANT BY JUDGE
The Committee decided to save this provision so that there will be a procedure for an undertaking. The Committee noted that there is a distinction between an undertaking and bail. An undertaking is generally paid to the victim. Bail is returned to the defendant. The words "civil" and "criminal" are to be struck from the statute. The statute will read as follows:
27-10-10. Amount of undertaking for appearance of accused may be fixed and endorsed on warrant by judge. When a warrant of attachment of a person accused of
a civil or criminal contempt is issued, the court, by an endorsement thereon, may fix a sum in which the accused may give an undertaking for his the accused's appearance to answer.
27-10-11. DUTIES OF SHERIFF AFTER ARREST IF UNDERTAKING NOT GIVEN BY ACCUSED
The Committee decided to save section 27-10-11. The phrase "criminal or civil" is to be deleted. The reference to section 27-10-12 is to be changed to "section 27-10-10." The statute will read as follows:
27-10-11. Duties of sheriff after arrest if undertaking not given by accused. When a person accused of
a criminal or civil contempt is arrested upon a warrant of attachment, the sheriff, if the amount of the undertaking for the appearance of the accused is not endorsed on the warrant, or if such an endorsement is made and an undertaking is not given as prescribed in section 27-10-12 27-10-10, shall keep the accused in his custody until the further direction of the court. When from sickness or other cause the accused is physically unable to attend before the court, that fact is a sufficient excuse to the sheriff for not producing him the accused as required by the warrant. In that case, the sheriff shall produce him the accused as directed by the court after he the accused becomes able to attend. The sheriff in any case need not confine the accused in prison or otherwise restrain him the accused
of his liberty except so far as is necessary in order to secure his the accused's personal attendance.
27-10-12. ACCUSED DISCHARGED FROM ARREST ON DELIVERING UNDERTAKING-NATURE OF UNDERTAKING
The Committee decided to repeal this section because the provisions regarding an undertaking in sections 27-10-10 and 27-10-11 are sufficient.
27-10-13. PROCEDURE ON RETURN OF WARRANT OF ATTACHMENT OR ORDER TO SHOW CAUSE FOR CONTEMPT
The Committee decided to keep the first sentence of section 27-10-13. The rest of the statute concerns the procedure to be followed and will be repealed. A new provision will be added making the nonsummary procedures of proposed section 27-10.1-03(l) applicable. Section 27-10-13 will read as follows:
27-10-13. Procedure on return of warrant of attachment or order to show cause for contempt. When a person accused of
a criminal or civil contempt is produced by virtue of a warrant of attachment, or appears upon the return of such a warrant or of an order to show cause, the court , unless the accused admits the offense charged, shall cause a complaint in the form of an affidavit to be filed specifying the facts and circumstances of the offense charged against him. The accused, under oath, shall make written answer thereto by affidavit within such reasonable time as the court allows therefor and either party may produce affidavits or other proof contradicting or corroborating such answer. Upon the original affidavits, the answer, and subsequent proofs, the court shall determine whether the accused has committed the offense charged shall proceed pursuant to section 27-10.1-03(l).
27-10-14. ORDER DIRECTING PUNISHMENT OF AND WARRANT OF COMMITMENT OF PERSON FOUND GUILTY OF CONTEMPT
The Committee decided that section 27-10-14 should be repealed. Proposed section 27-10.1-04 replaces section 27-10-14.
27-10-15. CONTENTS OF ORDER FOR PUNISHMENT AND WARRANT OF COMMITMENT
The Committee decided that section 27-10-15 should be repealed. Proposed section 27-10.1-04 replaces section 27-10-15.
27-10-16. PERSON IMPRISONED FOR CONTEMPT MAY BE ORDERED DISCHARGED
The Committee decided to get rid of section 27-10-16 because the defenses do not need to be specified by statute.
27-10-17. PUNISHMENT FOR CONTEMPT NO BAR TO CRIMINAL PROSECUTION
The Committee decided to repeal section 27-10-17. The Committee was concerned about double jeopardy problems with the statute. Proposed section 27-10.1-04(3) provides that both remedial and punitive sanctions may be imposed for the same contempt.
27-10-18. PROCEDURE WHEN PERSON ARRESTED GIVES UNDERTAKING FOR APPEARANCE BUT FAILS TO APPEAR
The Committee decided to save section 27-10-18 without any substantive changes.
27-10-19. UNDERTAKING MAY BE ORDERED PROSECUTED BY AND IN BEHALF OF PARTY AGGRIEVED-EXTENT OF RECOVERY
The Committee decided to keep section 27-10-19 without any substantive change; except, the phrase "criminal or civil" is to be deleted.
27-10-20. WHEN UNDERTAKING COLLECTED PROSECUTED IN NAME OF STATE--DISPOSITION OF MONEY COLLECTED
The Committee decided to save section 27-10-20 without any substantive change.
27-10-21. SHERIFF LIABLE FOR INSUFFICIENT SURETY--ENFORCEMENT OF LIABILITY
The Committee thought section 27-10-21 is archaic and should be repealed.
27-10-22. PROCEDURE TO PUNISH CONTEMPT BEFORE A REFEREE
The Committee decided to save this provision by incorporating section 27-10-22 into proposed section 27-10.1-02(2).
27-10-23. CONTEMPT OF WITNESS BEFORE A NOTARY PUBLIC, OFFICER, BOARD OR TRIBUNAL
The Committee decided to save section 27-10-23, even though the Committee thought the substance of this statute was already addressed in the proposed legislation and other existing statutes.
27-10-24. APPEAL TO SUPREME COURT FROM FINAL ORDER ADJUDGING A PERSON GUILTY OF CONTEMPT
The Committee decided to repeal section 27-10-24 because proposed section 27-10.1-03(3) provides for appeal. Justice Levine suggested that a sentence be added to proposed section 27-10.1-03(3) that would provide that any order or judgment finding a person guilty of contempt is a final order for the purposes of appeal. The provision concerning certification under Rule 54(b), N.D.R.Civ.P., should be deleted. Certification is not provided for in the rules of criminal procedure. The Committee questioned which rules of appeal and which time periods will apply in contempt cases. The Committee did not think the Legislature should specify which rules of appellate procedure apply. The Committee instructed staff to draft rule proposals specifying the rules applicable to contempt proceedings. Staff was instructed to present the rules that need amending in regard to the contempt legislation at the January meeting.
27-10-25. UNDERTAKING FOR STAY OF EXECUTION OF ORDER ON APPEAL IN CRIMINAL CONTEMPT; 27-10-26. UNDERTAKING FOR STAY OF EXECUTION OF ORDER ON APPEAL IN CIVIL CONTEMPTS; 27-10-27. UNDERTAKING ON APPEAL IN CONTEMPT WHERE STAY OF EXECUTION NOT DESIRED
The Committee agreed that sections 27-10-25, 27-10-26 and 27-10-27 should be repealed. The current rules of criminal procedure and appellate procedure contain sufficient provisions for stay of execution.
COMMITTEE REVIEW OF CHAPTER 12.1-10, N.D.C.C.
CHAPTER 12.1-10. CONTEMPT-OBSTRUCTION OF JUDICIAL PROCEEDINGS
The Committee reviewed chapter 12.1-10, N.D.C.C. Chapter 12.1-10 defines certain acts as class A misdemeanors that also constitute contempt of court. The Committee
considered the option of going through chapter 12.1-10 and removing any reference to the judiciary. The Committee voted whether the definition of official proceeding should be changed in section 12.1-10-02 so that sections 12.1-10-02, 12.1-10-03 and 12.1-10-04 will not apply to judicial proceedings. The Committee voted against changing the definition of official proceeding. The Committee unanimously agreed to repeal section 12.1-10-01.
PROPOSED CONTEMPT LEGISLATION - CONCLUSION
Judge Leclerc moved that the Joint Procedure Committee submit the proposed contempt legislation to the Supreme Court for forwarding to the Legislature. The contempt legislation submitted to the Supreme Court is to contain the substance of the proposals discussed at this meeting. Staff is to clean up the legislation in terms of style. Mr. McLean seconded. Motion CARRIED unanimously. The motion passed includes the Committee's decisions in regard to chapter 27-10.
Judge Leclerc amended his motion to also include deletion of section 12.1-10-01, N.D.C.C. Mr. McLean seconded. Motion CARRIED unanimously.
HOUSEKEEPING AMENDMENTS FOR CONTEMPT LEGISLATION
6-01-05. TAKING OF TESTIMONY AND ENFORCING OF ORDERS, (PAGE 82 OF THE AGENDA MATERIAL)
The Committee decided not to amend section 6-01-05, N.D.C.C., because section 27-10-23, N.D.C.C., was not repealed.
10-15-35. BOOKS AND RECORDS--PENALTY FOR REFUSAL TO PRODUCE, (PAGES 83-84 OF THE AGENDA MATERIAL)
Judge Leclerc MOVED that a period be placed after "court" and that the rest of the language on lines 31 through 32 be deleted. Mr. Odegard seconded the motion. Motion CARRIED. Amended section 10-15-35 will read as follows:
10-15-35. Books and records--Penalty for refusal to produce. 1. A cooperative shall keep correct and complete books and records of account, and shall also keep minutes of the proceedings of meetings of its members, board, and executive committee. The cooperative shall keep at its principal office records of the names and addresses of all members and stockholders with the amount of stock held by each, and of ownership of equity interests. At any reasonable time,
any member or stockholder, or
his the agent or attorney of either, upon written notice stating the purposes thereof, delivered or sent to the cooperative at least one week in advance, may examine for a proper purpose any books or records pertinent to the for a purpose that is proper and specified in such the notice.
2. In any proceedings, or upon petition
for such purpose, any court of record may, upon notice and after hearing at which proper cause is shown, and upon suitable terms, order any of the cooperative's books or records, and any other pertinent documents in its possession, or duly authenticated copies thereof, to be brought within this state. Such The documents shall must be kept at such the place and for such the time and purposes as the order designates. Any cooperative failing to comply with the order is subject to dissolution, and its directors and officers are liable for guilty of contempt of court , and may be punished as provided in section 12.1-10-01.
14-05-25.1 and 14-06-03.1. MONEY JUDGMENT TO SECURE DIVISION OF PROPERTY ENFORCEABLE BY CONTEMPT PROCEEDINGS--EXEMPTIONS FROM PROCESS NOT AVAILABLE, (PAGES 85-86 OF THE AGENDA MATERIAL)
Lamb MOVED to amend sections 14-05-25.1 and 14-06-03.1 as follows:
14-05-25.1. Money judgment to secure division of property enforceable by contempt proceedings -- Exemptions from process not available. Failure to comply with the provisions of a divorce decree relating to distribution of the property of the parties
may be punished as civil constitutes contempt of court. A party may also execute on a money judgment, and the obligor is entitled only to the absolute exemptions from process set forth in section 28-22-02.
14-06-03.1. Money judgment to secure division of property enforceable by contempt proceedings -- Exemptions from process not available. Failure to comply with provisions of a decree of separation relating to distribution of the property of the parties
may be punished as civil constitutes contempt
of court. A party may also execute on a money judgment, and the obligor is entitled only to the exemptions from process set forth in section 28-22-02.
Mr. Kapsner seconded the motion. The motion CARRIED.
14-07.1-06. PENALTY FOR VIOLATION OF A PROTECTION ORDER, (PAGE 87 OF THE AGENDA MATERIAL)
Judge Leclerc MOVED to amend section 14-07.1-06 as follows:
14-07.1-06. Penalty for violation of a protection order. Whenever a protection order is granted pursuant to section 14-07.1-02 or 14-07.1-03 and the respondent or person to be restrained has been served a copy of the order, a violation of the order is a class A misdemeanor and also constitutes
criminal contempt of court subject to penalties therefor.
Judge Hilden seconded the motion. The motion CARRIED. Staff was instructed to cross-reference section 14-07.1-06 with section 12.1-10-05.
14-08.1-05. SUPPORT ORDER TO BE JUDGMENT; 14-12.1-09. HOW DUTIES OF SUPPORT ENFORCED; 14-17-09. PRETRIAL PROCEEDINGS; 14-17-16. ENFORCEMENT OF JUDGMENT OR ORDER, (PAGES 88-93 OF THE AGENDA MATERIAL)
Judge Leclerc MOVED to adopt the language contained on pages 88 through 93 of the agenda material. Judge Smith seconded. Committee members pointed out that a period is needed after "court" otherwise the punishment will be restricted to remedial sanctions. A period after court is also necessary to save the use of warrants of attachment. Judge Leclerc amended his motion to put a period after "court" and to delete the language concerning remedial sanctions. The second concurred. The motion CARRIED. The amended statutes will provide as follows:
14-08.1-05. Support order to be judgment.
1. Any order directing any payment or installment of money for the support of a child is, on and after the date it is due and unpaid:
a. A judgment by operation of law, with the full force, effect, and
attributes of a judgment of the district court, including the ability to be entered in the judgment book pursuant to rule 58 of the North Dakota Rules of Civil Procedure and otherwise enforced as a judgment;
b. Entitled as a judgment to full faith and credit in any jurisdiction which otherwise affords full faith and credit to judgments of the district court; and
c. Not subject to retroactive modification.
2. Failure to comply with the provisions of a judgment or order of the court for the support of a child
may be punished as civil constitutes contempt of court. All remedies for the enforcement of judgments apply. A party or the party's assignee may also execute on the judgment, and the obligor is entitled only to the exemptions from process set forth in section 28-22-02.
14-12.1-09. How duties of support enforced. All duties of support, including the duty to pay arrearages, are enforceable by a proceeding under this chapter including a proceeding for
civil contempt of court. The defense that the parties are immune to suit because of their relationship as husband and wife or parent and child is not available to the obligor.
1. As soon as practicable after an action to declare the existence or nonexistence of the father and child relationship has been brought, an informal hearing must be held. The court may order that the hearing be held before a referee. The public must be barred from the hearing. A record of the proceeding or any portion thereof must be kept if any party requests, or the court orders. Rules of evidence need not be observed.
2. Upon refusal of any witness, including a party, to testify under oath or produce evidence, the court may order
witness to testify under oath and produce evidence concerning all relevant facts. If the refusal is upon the ground that
his the witness's testimony or evidence might tend to incriminate him the witness, the court may grant him the witness immunity from all criminal liability on account of the testimony or evidence he the witness is required to produce. An order granting immunity bars prosecution of the witness for any offense shown in whole or in part by testimony or evidence he the witness is required to produce, except for perjury committed in his the witness's testimony. The refusal of a witness, who has been granted immunity, to obey an order to testify or produce evidence is a civil constitutes contempt of the court.
3. Testimony of a physician concerning the medical circumstances of the pregnancy and the condition and characteristics of the child upon birth is not privileged.
14-17-16. Enforcement of judgment or order.
1. If existence of the father and child relationship is declared, or paternity or a duty of support has been acknowledged or adjudicated under this chapter or under prior law, the obligation of the father may be enforced in the same or other proceedings by the mother, the child, the public authority that has furnished or may furnish the reasonable expenses of pregnancy, confinement, education, support, or funeral, or by any other person, including a private agency, to the extent he has furnished or is furnishing these expenses.
2. The court may order support payments to be made to the mother, the clerk of the court, or a person, corporation, or agency designated to administer them for the benefit of the child under the supervision of the court.
3. Willful failure to obey the judgment or order of the court
is a civil constitutes contempt of the court. All
remedies for the enforcement of judgments apply.
27-09.1-07(3). JUDICIAL QUALIFICATION FORM, (PAGE 94 OF THE AGENDA MATERIAL)
Committee members questioned the need for this subsection. The same behavior is defined as a contempt under proposed section 27-10.1-01. Mr. Heinley MOVED to repeal subsection 3 of section 27-09.1-07. Other Committee members noted that subsection 3 only provides a penalty of one hundred dollars or three days, or both. If section 27-09.1-07(3) is repealed, the penalty would be greater under proposed section 27-10.1-04. Mr. Heinley MOVED to amend subsection 3 to provide on lines 10-15 that "the juror is guilty of contempt of court and upon conviction may be fined not more than one hundred dollars or imprisonment in the county jail for not more than three days, or both." Seconded by Mr. Peterson. Motion failed.
Judge Glaser MOVED to repeal section 27-09.1-07(3). Judge Smith seconded. Motion CARRIED.
27-09.1-16. PENALTIES FOR FAILURE TO PERFORM JURY SERVICE, (PAGE 95 OF THE AGENDA MATERIAL)
Judge Leclerc MOVED to repeal section 27-09.1-16. The same behavior is defined as a contempt under proposed chapter 27-10.1. Mr. Kapsner seconded. Motion CARRIED.
27-19-07. CONTEMPT POWERS, (PAGE 96 OF THE AGENDA MATERIAL)
Mr. Lamb MOVED to approve section 27-19-07 as proposed on page 96 of the agenda material. Mr. Odegard seconded. Motion CARRIED.
27-20-55. CONTEMPT POWERS, (PAGE 97 OF THE AGENDA MATERIAL)
Judge Wright MOVED to approve section 27-20-55 as proposed on page 97 of the agenda material. Mr. Odegard seconded. Motion CARRIED. Committee members noted that when a district court judge sits in juvenile court, the judge acts under the power of the Juvenile Court Act. Section 27-20-55 is necessary, otherwise the district court judge might not have contempt powers when presiding over juvenile court.
27-23-08. PETITION FOR ORDER COMPELLING PERSON TO ATTEND OR TESTIFY OR PRODUCE WRITINGS OR THINGS, (PAGE 98 OF THE AGENDA MATERIAL)
Mr. Kapsner MOVED that section 27-23-08 not be amended. Mr. Odegard seconded. Motion CARRIED. Members of the Committee were hesitant to change substantive law by providing that the conduct constitutes contempt of court rather than a crime under section 12.1-10-02, N.D.C.C. Motion CARRIED.
28-21-12.1. PROPERTY DELIVERY- -PENALTY, (PAGE 99 OF THE AGENDA MATERIAL)
Mr. Kapsner MOVED to amend section 28-21-12.1 to provide that a person may be "guilty of contempt of court." Mr. McLean seconded. The Committee was concerned that changing "civil contempt" to "remedial sanctions" would eliminate the use of orders to show cause and warrants of attachment. Motion CARRIED. Amended section 28-21-12.1 will read as follows:
28-21-12.1. Property delivery -- Penalty. Any person who has received notice of levy in accordance with this chapter and fails to surrender and deliver
such the property levied on under section 28-21-08 upon demand of the sheriff is guilty of a class B misdemeanor and may be subject to civil guilty of contempt of court.
29-10.1-39. VIOLATION CONSTITUTES CONTEMPT, (PAGE 100 OF THE AGENDA MATERIAL)
Mr. Kapsner MOVED to put a period after "court" on line 6 and to delete the rest of lines 7 and 8. Mr. Odegard seconded. Motion CARRIED. Amended section 29-10.1-39 will read as follows:
29-10.1-39. Violation constitutes contempt. Any person who willfully violates any provision of this chapter is guilty of
criminal contempt of court.
40-18-14. MUNICIPAL JUDGE MAY ENFORCE ORDERS AND JUDGMENTS AND PUNISH FOR CONTEMPT, (PAGE 101 OF THE AGENDA MATERIAL)
No action was taken by the Committee regarding section 40-18-14. Committee members were hesitant to alter the powers given municipal judges by the Legislature. The consensus seemed to be that this was a political question.
42-02-10. INJUNCTION-PENALTY FOR VIOLATION, (PAGE 102 OF THE AGENDA MATERIAL)
Mr. Kapsner MOVED to amend section 42-02-10, so the section will read as follows:
42-02-10. Injunction - Penalty for violation. Any person violating the terms of an injunction for the abatement of a nuisance in any place in the state of North Dakota
shall be is guilty of criminal contempt under section 12.1-10-01 of court.
Judge Hilden seconded. Motion CARRIED.
42-02-11. CONTEMPT PROCEEDING, (PAGE 103 OF THE AGENDA MATERIAL)
Mr. Odegard MOVED to approve section 42-02-11 as proposed on page 103 of the agenda material. Motion CARRIED.
51-15-06.1. ASSURANCE OF DISCONTINUANCE, (PAGE 104 OF THE AGENDA MATERIAL)
Mr. Kapsner MOVED that a period be placed after "court" on line 19 and to delete the remainder of lines 19 through 20. Mr. McLean seconded. Motion CARRIED. Amended section 51-15-06.1 will read as follows:
51-15-06.1. Assurance of discontinuance. The attorney general may accept an assurance of discontinuance of any act or practice the attorney general determines to be in violation of this chapter or chapter 51-12, 51-13, 51-14, or 51-18 from any person the attorney general alleges is engaging in, or has engaged in, the act or practice. The assurance of discontinuance must be in writing and must be filed with and is subject to the approval of the district court of the county in which the alleged violator resides or has as a principal place of business or in Burleigh County. An assurance of discontinuance may not be considered an admission of a violation. However, failure to comply with an assurance of discontinuance which has been approved by the district court is
punishable as criminal contempt of court.
54-35-02. POWERS AND DUTIES, (PAGE 105 OF THE AGENDA MATERIAL)
Mr. Kapsner MOVED to delete the word "civil", and to put a period after "contempt" and to delete the remainder of
lines 19 through 21. Mr. McLean seconded. Motion CARRIED. Committee members noted that section 54-35-02 does not involve a contempt of court. Staff was instructed to cross-reference section 54-35-02 to chapter 12.1-10. The Committee deleted the word "civil" to ensure the Legislative Council a remedy under chapter 12.1-10. Amended section 54-30-02(7) will read as follows:
7. To issue subpoenas or subpoenas duces tecum in the manner provided in sections 54-03.2-08 and 54-03.2-09. Committees of the council may issue subpoenas and subpoenas duces tecum in the same manner if specifically authorized by the council. Failure to obey a subpoena issued by the council, or one of its committees, is
a civil contempt.
LOCATION OF NEXT JOINT PROCEDURE COMMITTEE MEETING
Judge Leclerc MOVED that the January 28-29 meeting of the Joint Procedure Committee be held in Fargo. Mr. McLean seconded. Judge Hilden noted that Mr. McLean had already made reservations in Bismarck for the January meeting. Motion failed.
The meeting adjourned at approximately 12:00 noon.