MINUTES OF MEETING
Joint Committee of the Judicial Council
and the State Bar Association
Joint Procedure Committee
September 16, 1971
The meeting was called to order at 1:30 p.m., September 16, 1971, in the hearing room of the Supreme Court.
Supreme Court Judge Ralph Erickstad;
County Judge Kirk Smith;
District Judge Norbert J. Muggli:
First Assistant Attorney General Paul Sand;
District Judge Roy A. Ilvedson;
Mr. John Shaft;
Mr. John Graham and
Gerald G. Glaser.
Also present were
Charles M. Travis, Criminal Code Reviser;
Mrs. Lorna Bender, Secretary;
and Mrs. Dolores Green, Secretary.
District Judge Eugene A. Burdick arrived at 2:45 p.m. due to airline problems.
Retired Supreme Court Judge James A. Morris and
Mr. Robert L. Vogel.
Mr. Roger Persinger and Former Supreme Court Judge William S. Murray attended part of the meeting.
The meeting proceeded as follows:
The chairman welcomed those present.
It was MOVED by Judge Muggli that the minutes of the May 6, 1971, meeting be approved as submitted, seconded by Paul Sand. There was no discussion and the motion was carried.
Judge Erickstad called on Paul Sand as the chairman of the steering committee for the rules revisers. Mr. Sand said that he had outlined his concept of the work to Mr. Travis. The difficulties of finding a second reviser were discussed.
Mr. Travis distributed folders containing the following materials:
1. "Preliminary Draft of Proposed Amendments to the Federal Rules of Criminal Procedure for the United States District Courts" (two booklets, dated March 1971 and April 1971).
2. "Alternative Drafts of Proposed Amendments to Rule 45."
3. Judge Muggli's explanatory notes on his assigned rules.
4. Comments from Judge Burdick on his proposed recommendations for revision of Rules 1 and 11.
5. Newspaper clipping from John Shaft re the Minnesota Supreme Court's upholding of plea bargaining.
6. Proposed Rules of Appellate Procedure from chairman Leonard Bucklin, who hoped that the appellate rules could be in some way coordinated with criminal rules. Mr. Bucklin requested the committee's comments.
Judge Smith and Judge Erickstad next expressed their interest in having Mr. Travis attend the Judiciary "B" Committee meeting. This committee is working on a revision of the substantive criminal law and has a meeting scheduled for Monday and Tuesday, September 20th and 21st. Mr. Graham, who is a member of the committee, expressed his interest in having Mr. Travis attend.
Agenda Item #3: Judge Erickstad started the agenda with Item #3, which was judge Muggli's explanatory note for Rule 6 on the grand jury. Judge Muggli said that he had been assigned this rule on reassignment from Judge Morris, that in discussion of the rule the consensus of the committee was that the Supreme Court did not have the power to change or modify the grand jury proceedings in light of the North Dakota Constitutional provision on the grand jury. On that basis the committee felt that since it, as a committee, could not by rule correct the grand jury provision of the Constitution, that it was necessary for a subcommittee to be formed. This subcommittee consisted of Mr. Paul Sand, Judge Muggli, Mr. Robert Vogel and later Judge Burdick. Mr. Sand was credited as the person primarily responsible for the research and
drafting of the bill which repealed the present grand jury statute and adopted a new one. Judge Muggli cautioned, however, that a Constitutional Convention was in session and there was a possibility that Section 8 of the Constitution might be changed, in which case further action would be warranted. Judge Muggli explained that he had prepared an explanatory note and although he wasn't certain as to the form, he did include all the matter which had been discussed in committee, indicating why nothing had been done in regards to Rule 6. Reference is made to some research which was conducted and prepared by Judge Morris in a memo to the committee at the meeting of May 3, 1968, in which Judge Morris was of the opinion that the constitutional provision effectively prevented this committee, as a function of the Supreme Court, from working or changing any of the statutory requirements pertaining to the grand jury.
Judge Muggli's original draft:
"Rule 6: Explanatory Notes (Source - meeting of May 3-4, 1969, Page 4).
"The committee recommends that no rule be adopted concerning grand juries but that the Rule No. 6 be retained for possible future use. Section 8 of the North Dakota Constitution provides that the legislature may change, regulate, or abolish the grand jury system. The committee interprets this provision of the State Constitution as prohibiting the legislature from delegating any rule making or other authority to change or modify grand jury procedures. The 1971 legislature adopted a complete revision of our grand jury statutes (Chapter 315 of the 1971 Session Laws). (Chapter 29-10.1 of the North Dakota Century Code). A constitutional convention has also been called and will meet next year and Section 8 of the present constitution may very well be changed."
Judge Erickstad made reference to inserting a specific year rather than the words "next year" in the last sentence of the explanatory note. He then called for a motion that the explanatory note be approved as submitted.
Judge Muggli suggested that reference to the year should be changed based on what the Constitutional Convention does. Judge Muggli MOVED that the explanatory note be approved as submitted. Judge Kirk Smith seconded the motion.
Judge Erickstad called for further discussion. John Graham presented the possibility that the committee, this or another in the future, may again be faced with the Constitution problem of a prohibition as provided by law relating to the rule making power of the Supreme Court. That we are in a sense binding ourselves to our more than adequate explanatory note. On this basis John Graham made a MOTION, which is as follows: "Delete the
second, third and fifth sentences, and amend the fourth sentence to read as follows: 'This recommendation is made due to the fact that the 1971 Legislature adopted a complete revision of our grand jury statutes, etc.'."- This motion was seconded by Judge Ilvedson.
Judge Erickstad suggested that a reference be included to cite Section 8 of the 1889 Constitution in order to alert the researcher. There was then some discussion between Gerald Glaser, John Graham and Judge Ilvedson as to an interpretation by the committee of the rule and whether that was wise in light of the purpose of an explanatory note.
Paul Sand said that he felt that the group had doubts whether or not the rule changing the grand jury would be valid and because of this doubt, the group decided to go through the legislative process. He said that if the committee were to ascribe any other reason than that, the committee would not be honest to itself nor to the reader who uses it as a reference. Mr. Sand further said the impression he received as to the committee's feeling was that rather than work with a doubtful rule, the better procedure would to have the Legislature cover that subject.
On that basis Mr. Sand offered a substitute MOTION to amend the initial explanatory remark which is as follows: "Delete the third sentence and place in lieu thereof the following language: 'Because of this provision the committee had doubt that it had the authority to change the grand jury provisions by rule.' Additional language after rule, that is 'and deemed it advisable to proceed by legislation' was dropped and that it was felt that this language was superfluous.
Judge Erickstad then made reference to the advisory notes in the Proposed Changes to the Federal Rules which were handed out by Mr. Travis.
Mr. Glaser pointed out that he would not want to have the full Rule printed with the advisory note because he felt that this note would no longer be a committee recommendation but rather an accomplished fact. It was his feeling that Rule 6 should be omitted and an explanatory note should state that the rule was omitted because, etc.
Mr. Sand pointed out that it was possible to have more than one set of notes and cited the Uniform Commercial Code in which there was an official comment as well as the author's comment, the latter reflecting either the author or the committee's thinking as to the rule.
Judge Erickstad suggested that what was included in the committee notes was what the committee recommended and the notes should be phrased in the present tense. Further, there was a requirement that some other type of note be included, which the Supreme Court might choose to add; this would reflect the divergence in views especially where the Supreme Court chooses to accept the recommendation of the committee.
Mr. Sand agreed saying that the comments have value only while the rules are under consideration or construction. If the comments are made after the fact is accomplished, there is always the danger of suiting the comments to fit the finished product rather than the method by which the finished product is reached.
Judge Smith noted that advisory notes of this type are usually rather loose and unstructured in form. They should include things which fit what the committee is thinking about at the time and therefore a- explanatory note does not have to be couched in the careful and well drawn language that the rule needs to be.
Judge Muggli suggested that instead of calling the note an explanatory note, that possibly it should be called an advisory committee note. He felt that would solve the problem.
Judge Erickstad said that barring any objection to the title, they would be headed as advisory committee notes.
John Graham then suggested the possibility that there be no reference at all.
Judge Erickstad countered by pointing out that there was a matter of pride involved and that the committee has done considerable work in the area and that it would be preferable that the committee show that it had not ignored the rule.
Judge Ilvedson then made a new PROPOSAL for an advisory committee note which is as follows: "The committee recommends that no rule be adopted pertaining to grand juries. The committee believes that it is doubtful whether any changes in statutory grand jury procedure can be made by rule in view of Section 8 of the North Dakota Constitution which provides that 'the legislature' may change, regulate or abolish the grand jury system. The 1971 legislature enacted a complete revision of the grand jury statutes. (See chapter 29-10.1 of the North Dakota Century Code)."
Mr. Sand indicated that Judge Ilvedson's proposal was an improvement over his and he MOVED to substitute Judge Ilvedson's proposal. Judge Muggli then seconded Mr. Sand's motion on a revision Or Judge Ilvedson.
Judge Erickstad suggested eliminating a few words which would not cause any loss in meaning and instead of saying 'the committee believes that it is doubtful' just to say 'the committee doubts whether any changes in statutory grand jury procedure.' In response to a question by John Shaft concerning the
way in which the advisory committee notes would appear, Judge Erickstad said that the advisory committee notes will be with the rules as they are submitted to the court and distributed statewide to the lawyers and clerks of court, etc. These proposals should be printed with the rules just as the committee submitted them and if there are any changes by the Supreme Court, that they should be included as additional notes.
Judge Muggli MOVED the question concerning Judge Ilvedson's proposal. There was no opposition and the motion was carried.
Judge Muggli made a MOTION that the term "advisory committee note" be used rather than explanatory note, to prevent any confusion as to whether comments are that of the committee or the Supreme Court or others. Judge Kirk Smith seconded that motion. In the discussion that followed, John Graham suggested the term of "drafting committee" as the appropriate title giving his reasons the fact that the committee is drafting the rules rather than advising in the formulation thereof.
Judge Erickstad pointed out that in the proposed revised federal rules, the term "advisory committee note" was used for the drafting committee. The committee then looked to the North Dakota Rules of Civil Procedure and noted that on Page 13 of the North Dakota Rules of Civil Procedure of 1957 it states: "submission of drafts to the Supreme Court" and doesn't name or describe the committee.
Mr. Travis suggested that in view of the fact that the proposed North Dakota rules will be taken from the Federal Rules with appropriate changes reflecting the needs of this state, that on that basis and in that sense this committee is an advisory committee. That we are not in effect drafting the rules but are merely looking to the Federal Rules and applying them to our state judiciary as appropriate. For what it was worth, he felt that the term "advisory committee note" is more appropriate.
The question was called on Judge Muggli's motion that the title be "advisory committee note." The committee affirmed the motion with one dissenting vote, that of John Graham. There was a break for coffee.
Agenda Item #4: The committee then passed over Item 4 of the agenda since Judge Burdick had not arrived and went to Item #5, which was John Graham's proposed amendment to the statute to conform to Rule 21, reference is made to Page 8 and 9 of the minutes of September 17, 1970. Mr. Graham suggests that he present Item #6 on the agenda because he will deal collaterally with the two agenda items.
Agenda Item #6: Item #6 of the agenda concerns the discussion of 'Disqualification of Trial Judges.' Mr. Graham then passed out his memo dated September 10, 1971, which is as follows:
"To the Members of the Joint Committee on Rules of Criminal Procedure - Proposed Rule 24.1 dealing with demand for change of trial judge.
"As recorded in the minutes of the Committee for September 17, 1970, proposed Rule 24.1 was offered for adoption and then withdrawn. See pages 17-20 of the minutes of September 17, 1970. It is my understanding that the proposed Rule has not been discussed again since that time.
"During the 1971 Legislative session, Senator Chesrown introduced Senate Bill No. 2383, which passed and has been codified as section 29-15-21. Section 29-15-21 sets out a comprehensive procedure for securing a change of trial judge. In light of the creation of section 29-15-21, it no longer seems necessary to have a rule covering the topic of disqualification of judges, unless the Committee disagrees with the approach taken by the Legislature, or feels it imperative to have this aspect of criminal procedure covered by a rule.
"The legislative approach to the problem is to eliminate the 'affidavit of prejudice' concept, and to give a party an
absolute right to a change of judge if the necessary written demand therefor is filed in a timely manner. The demand must be filed with the clerk of court in which the action is pending, and the demand must be executed personally by the party. The primary difference between the legislative approach and proposed Rule 24.1 is that the demanding party under section 29-15-21 must still state that the demand is made in good faith and not for the purposes of delay, whereas the Rule allows a certificate to be filed without any such statement, and particularly allows such action where the party 'prefers to have a different judge try or hear the matter' regardless of the reasons for his preference, including, presumably, the opportunity to delay the proceedings.
"I don't believe that the required 'good faith' statement under section 29-15-21 adds any new dimensions to the right to a change of judge, especially in view of the requirements of subsection 5 of section 29-15-21, which provides that a judge may proceed no further and is disqualified upon receipt of a copy of a timely demand. The 'good faith' statement seems to be so much boilerplate since there is no requirement that the demanding party feel that the judge is biased or prejudiced.
"The time limits for filing a demand under section 29-15-21 differ from the time limits under Rule 24.1. Under the Rule, the certificate must be filed 8 days before the term of court at which the action is to be tried, or within two days after receipt of a notice of hearing. Under the statute, the demand must be filed ten days before the date of trial, or three days before a hearing upon motion or arraignment. It seems that the statutory time limits are preferable.
"In a bill draft arising under another rule (Rule 21), 1 have taken the liberty of amending subsection 9 of section 29-15-21 because that subsection makes reference to section 29-15-01 which will be superseded by Rule 21.
"In summary, subject to Committee disagreement, I propose that Rule 24.1 be dropped from the Committee's agenda, and that no consideration be given to drafting a rule dealing with change of trial judge."
John A. Graham)"
Judge Erickstad suggested that this type of approach may run contrary to what the committee has set up as a general approach, that is, to try whenever possible to make our rules complete rather than relying on the legislature. He requested clarification as to Mr. Graham's position regarding the statute as it has now been amended. Mr. Graham confirmed his recommendation that we not have a rule on the subject citing page 18 of the September 17, 1970 minutes:
"Give a party an absolute right to a change of judge if the necessary written demand therefor is filed in a timely manner. The demand must be filed with the clerk of court in which the action is pending, and the demand must be executed personally by the party. The primary difference between the legislative approach and the proposed Rule 24.1 is that the demanding party under section 29-15-21 must still state that the demand is made in good faith and not for the purposes of delay, whereas the Rule allows a certificates to be filed without any such statement, and particularly allows such action where the party 'prefers to have a different judge try to hear the matter' regardless of the reasons for his preference, including, presumably, the opportunity to delay the proceedings."
John Graham made a MOTION that the committee strike consideration of the Rule dealing with disqualification of judges. Judge Ilvedson seconded the motion.
Judge Erickstad called for the question and motion is carried unanimously.
In response to a question by Gerald Glaser concerning an appropriate cross reference to Rule 24, John Graham replies that such an appropriate cross reference would be to Chapter 29-15-21.
John Shaft suggested that it would be more appropriate for Chapter 29-15-21, which is demand for change of judge, to be included as a reference to Rule 21. There was agreement with this suggestion and it so noted.
John Graham explained that at the September 17 meeting the committee adopted Rule 21 which provides for transfer of the action. He noted that it was at the suggestion of Judge Lynch, who in a letter to the committee proposed that the committee include the proposition that the presiding judge be transferred when the action is transferred. It had been noted by Judge Muggli, at that time, that statutes established pursuant to Section 116 of the Constitution provided for sending a judge outside his district but that no provision had been made for transfer of the judge in the case of a transfer of the action. Mr. Graham noted that it was on that basis that he drafted the proposed amendment to the existing law. This was accomplished by amending subsection 3 of Section 27-05-22. (Full text is on page 7 of the minutes of the September 1970 meeting).
Judge Erickstad then suggested that Mr. Graham go through his proposed bill.
John Graham, noting that section 1 of this bill amends subsections 3 and 4 of Section 27-05-22, then quoted from Section 27-05-22 as it includes his changes: "District Judges to act only within their districts--Exceptions.--
No judge of a district court of this state shall hear or determine any action, special. proceeding, motion, or application, or make any order, or give any judgment, in any action or proceeding pending or about to be commenced in a judicial district other than the one for which he was elected, except:
"l. Upon the written request of a judge of such other district;
"2. When, upon the application of either party to such action or proceeding and upon due notice to the opposite party, if he shall have appeared and is entitled to such notice, it shall be made to appear by affidavit to the satisfaction of such judge that the judges of such other district are absent from their district, incapacitated, or disqualified to act therein. Such application shall be made only to a judge of a district adjoining that in which such action or proceeding is pending or about to be commenced, and upon the hearing thereof counter affidavits may be used.
"3. When designated by the Supreme Court to perform duties in another district as authorized by Section 27-05-25, or when a criminal action or proceeding has been transferred to a county outside of the original judicial district for trial as authorized by law or duly promulgated rule of criminal procedure.
"4. When designated by the Supreme Court to act in such other district in the place of a district judge thereof who has been disqualified pursuant to Section 29-1521; or
"5. A motion upon notice may be heard by a judge of a district court in which the action or proceeding is not pending in the cases provided by law only, either in the district in which the action or proceeding is pending or in an adjoining district, but such motion when heard by the judge of the district in which the action or proceeding is pending can be heard only in such district."
Mr. Graham explained that Section 2 of the Bill which amends subsection 9 of Section 29-15-21, is the newly enacted statute dealing with disqualification and is also known as Chesrown's Bill. Mr. Graham further explained that the reason he wanted to amend the section was that when the committee adopted Rule 21, Transfer of Action, the committee specified Section 29-15-01 should be superseded by Rule 21 and Chesrown's Bill, subsection 9 had reference to 29-15-01, therefore he wanted to make the correction.
Judge Erickstad questioned the significance of the language "authorized by law or duly promulgated rule of criminal procedure."
Mr. Graham suggested that he had two points to make. The first, which he didn't feel answered the question directly, was that he wanted to leave the capability of transfer to be as authorized by law, in the event that the first two rules were not adopted prior to the time of the passage of the Bill. Secondly, he suggested that he used the words 'duly promulgated' because he thought that the underlying problem had been eluded in September by Judge Muggli and was being eluded again today with regard to the discussion of Rule 6; that is, the power of this committee to do things by rule. He noted that there is statutory authority for dealing with rules of criminal procedure and that he wanted specific reference to and of the statute to establish this action as promulgated by the proper authorities.
Judge Burdick suggested that all rules of criminal procedure are duly promulgated or they are not law.
John Graham yielded and agreed to strike the words 'duly promulgated' from his proposal, that is in line 8 and in line 21. John Graham then MOVED that the committee recommend the Bill for adoption for enactment by the legislature. Judge Burdick seconded the motion.
Gerald Glaser questioned the effect on the proposed Rule 21 if legislature did not enact the Bill.
John Graham, in responding, suggested that Rule 21 itself would allow a transfer to another county and therefore the Judge could accompany the action.
Judge Smith then suggested that it might he advisable to make this statute in a form of a rule for promulgation by the Supreme Court.
Judge Burdick proposed some language changes, suggesting first of all that subsection 3 be separated, reasoning that the committee is dealing with two different concepts, that 3 would read either "if" or "whenever," instead of using the word "when" to introduce a clause for an event which may or may not occur. Secondly, he proposed that subsection 4 begin with "whenever using the same language but making this a separate numbered subsection, that is number 4 would be number 5 and also have that clause begin with "whenever". He pointed out that these are all different situations, and there is no reason to carry two in one subsection and one in a separate subsection.
Mr. Graham questioned the change in numbering by Judge Burdick.
Judge Burdick answered by pointing out that there is a completely different category at this point. He noted a transfer of procedure and it suggested that it ought to be separately considered; he further suggested that the whole section, that is Section 27-05-22, be amended.
Mr. Graham suggested further amendments as follows: In line 1 delete the words "Subsections 3 and 4 of section" and insert the capitalized word "Section." In line 2 delete the word "are" and insert the word "is"--commence with the text of the entire section which would remain to subsection 2 wherein you would delete the word "when" and insert the word "whenever" - subsection 3 would remain the same except the word "when" would be deleted and the word "whenever" would be inserted - new subsection 4 would commence with the word "whenever" - present subsection 4 would be renumbered 5. Also delete the words "duly promulgated" and insert the word "by" in its place. In subsection 5 use the word "whenever" and subsection 5 would remain unnumbered as a final closing paragraph.
Judge Burdick questioned subsection 4 of the revised amendment, specifically noting the word "trial" and the question being whether this covers the changes in venue or merely changes the place of trial. His point was that these terms have been used interchangeably but mean completely different things and this leads to a great deal of confusion. He explained that when the venue is changed, the expense of the trial is charged to the county who receives the venue, however, where the place of trial is changed and the venue remains the same, it is unreasonable to expect that the county receiving the action through transfer bear the expense of the trial. Judge Burdick made clear that in cases where the purpose of the transfer is either to obtain an unprejudiced jury or for the convenience of witnesses; that in those instances the venue of the action should remain as it was but the place should be changed. In cases where there is a proper change of venue, as a result of residency requirements or because the crime was committed in the other county, the proper expenditure would be from the county who is claiming or to whom the venue has been assigned.
John Graham in agreeing with Judge Burdick pointed out further that all Section 27-05-22 provides for is the authorization of a judge to go to a county outside of this district while the section refers to transfer, the language doesn't tell him why he should transfer. For him to discover any other information it would be necessary for him to refer to the Rule. The point of the discussion is that this discussion wouldn't show up in our advisory committee notes because it isn't a rule, just a proposed change in the statute. Judge Burdick agreed to include the words "transfer for purposes of trial" which would make this concept clearer in meaning as well as including these proposals to differentiate between change of venue and transfer of the action in an explanatory note. This would be satisfactory.
Judge Muggli pointed out that the type of confusion suggested by Judge Burdick which results from the distinction between venue and transfer is usually related to civil actions, however Chapter 29-15 sets out very clearly the payment of costs in criminal action. Judge Burdick noted that Chapter 29-15-03 discusses changing the place of trial. John Graham indicated that Section 29-15-03 is superseded by Rule 21. Final clarification indicated that Section 29-15, sections 1 through 12, will be repealed or deleted.
At this point there was a MOTION made by Judge Burdick to adopt John Graham's motion as is proposed, seconded by John Graham and Judge Ilvedson. Motion was carried by a unanimous vote. The motion presented is as follows:
"PROPOSED AMENDMENT. Section 27-05-22 of the North Dakota Century Code is hereby amended and reenacted to read as follows:
Section 27-05-22. District judges to act only within their districts--Exceptions--No judge of a district court of this state shall hear or determine any action, special proceeding, motion, or application, or
make any order, or give any judgment, in any action or proceeding pending or about to be commenced in a judicial district other than the one for which he was elected, except:
1. Upon the written request of a judge of such other district;
2. Whenever, upon the application of either party to such action or proceeding and upon due notice to the opposite party, if he shall have appeared and is entitled to such notice, it shall be made to appear by affidavit to the satisfaction of such judge that the judges of such other district are absent from their district, incapacitated, or disqualified to act therein. Such application shall be made only to a judge of a district adjoining that in which such action or proceeding is pending or about to be commenced, and upon the hearing thereof counter affidavits may be used;
3. Whenever designated by the supreme court to perform duties in another district as authorized by Section 27-02-25;
4. Whenever a criminal action or proceeding has been transferred to a county outside of the original judicial district for purposes of trial as authorized by law or by rule of criminal procedure;
5. Whenever designated by the supreme court to act in such other district in the place of a district judge thereof who has been disqualified pursuant to section 29-15-21;
A motion upon notice may be heard by a judge of a district court in which the action or proceeding is not pending in the cases provided by law only, either in the district in which the action or proceeding is pending or in an adjoining district, but such motion when heard by the judge of the district in which the action or proceeding is pending can be heard only in such district."
"SECTION 2. AMENDMENT. Subsection 9 of Section 29-15-21 of the 1971 Supplement to the North Dakota Century Code is hereby amended and reenacted to read as follows:
9. Whenever a demand for a change of judge is filed in a criminal action, in accordance with the provisions of this section, and the party also asks for a change of place of trial upon any ground authorized by law or by rule of criminal procedure, the court shall proceed no further in the action and thereupon shall be disqualified to do any further act in said cause. In such case, the application for a change of place of trial shall be heard and determined by the judge designated by the supreme court to act in said action."
At this point there was discussion concerning the proper numbering sequence. See later comments and final action. (See page 20)
Agenda Item #4: Judge Erickstad calls on Judge Burdick for agenda Item #4 which is "to continue action on his motion regarding Rule 11(b)(1)(C) from page 24, Minutes of 12-10-70." Judge Burdick's proposal is to amend Rule 11, Sentence 1, the last sentence in the first page of the goldenrod sheet so that it would read "The Court shall not accept or retain a plea of guilty unless it is satisfied from evidence adduced that there is factual basis for the plea." The explanation that Judge Burdick gave was that the present sentence merely restricts the entering of a judgment on a plea of guilty and it was Judge Burdick's position that the Court should not accept the plea of guilty but if it does accept a plea of guilty, it should not retain the plea unless the
judge is satisfied from the evidence adduced that there is a factual basis for the plea. That is, the evidence ought to support in some measure the plea that has been received.
John Graham noted that the original language of the Rule comes directly from Rule 11 of the Federal Rules.
Judge Burdick explained that the evil that he was hoping to avoid was exemplified in cases in which the judge will not take testimony upon pleas of guilty. He cited the James Earl Ray case as a case in point where the judge took the defendant's plea of guilty and passed sentence with no supporting evidence adduced before the Court at all to support the plea. This gave the defendant standing to later come in and withdraw his plea of guilty and enter a plea of not guilty following sentence.
Judge Erickstad cited Item 1.5 of the Standards Relating to Pleas of Guilty submitted by the American Bar Association project on Minimum Standards for Criminal Justice.
John Graham notes for the record that the Advisory Committee of the American Bar Association on rules for criminal procedure has proposed an amendment to Rule 11 in which the particular language under discussion here is entirely deleted. Reference was then made to the Preliminary Draft of Proposed Amendments to the Federal Rules of Criminal Procedure for the United States District Courts and the Federal Rules of Appellate Procedure dated April 1971 on page 1, in which is contained a proposed amendment to Rule 11. It was further pointed out by Judge Erickstad that in line with the recommendations of the American Bar on minimum standards relating to pleas of guilty that Section 1.6 which reads "Notwithstanding the acceptance of a plea of guilty the Court should not enter a judgment upon such a plea without making such inquiry as may satisfy it that there is a factual basis for the plea." This very language is carried over in subsection (f) of the proposed change to Rule 11 of the Federal Rules of Criminal Procedure.
Judge Smith entered an objection to the Burdick amendment requiring evidence to be adduced before judgment. He further questioned the necessity calling a witness to establish a factual basis. He noted that this information was obtainable from a police rap sheet or documents held by the clerk of court from which the court could take judicial notice. The discussion continued between Judge Burdick and Judge Smith; Judge Burdick's point seemed to be that there was a degree of necessity on the part of the court for determining the factual basis for a plea of guilty and that in determining this factual basis on the plea, the court should have testimony taken under oath of either the defendant or a third party. Judge Smith indicated that this, in fact, would be making a little trial of the proceedings. Procedures for determining the accuracy of the guilty plea is already covered in Rule 11 subsection (f) of the proposed changes to the Federal Rules.
Gerald Glaser suggested that to eliminate the lengthy discussion, and in view of the fact that the rules would be reviewed again by the committee, that it would be advisable for the drafters of each of the rules to review his rule in light of the more recent federal amendments.
At this point Judge Smith and Judge Burdick reengaged in their discussion of Judge Burdick's amendment to Rule 11. Judge Smith suggesting that there should be a flexibility in determining the factual basis for the plea and the court should not be bound by the rules of evidence in determining a plea to the same extent as it would be by the rules of evidence at trial. Therefore, Judge Smith could not understand the use of the phrase "evidence adduced." Judge Burdick felt that more was needed than merely a statement of the facts by the prosecuting attorney.
To illustrate his point and in answer to a question by Paul Sand concerning procedure where such a rule exists, but inadvertently or otherwise does not comply with the rule, Judge Burdick related the following account of a case which he had before him in which a man hitchhiked out of Montana to find a job herding sheep in Montana. After securing his job he attempted to return to North Dakota for his family and possessions; he traveled by hitchhiking rides. On the way from the ranch in Montana he hitchhiked a ride with a man, who unbeknownst to him, had stolen the car
in which he was riding. The driver of the car stopped to buy a pack of cigarettes and left this unwary defendant sitting in the car while he got away. The police came and found the defendant in the car and charged him with car theft. Although this individual tried to explain his story to the State's Attorney, the State's Attorney advised him to plead guilty and promised him leniency in the sentence. When the case came before the Judge, the Judge asked for the plea and when the plea of guilty was announced, the Judge passed sentence without giving the defendant an opportunity to speak and he was sentenced to Deer Lodge for a period of one year without the State's Attorney making any attempt to correct or rectify the situation. Judge Burdick for the record advised the committee that the National Conference of Commissioners on Uniform State Laws has a special committee appointed to draft the revised rules of criminal procedure which were originally promulgated by the Conference in 1953. He indicated that this Conference has a substantial grant of money from the Federal Government for the drafting of the revision. They have a reporter hired and they are now launching this complete revision of the conference draft and this committee should be aware of their progress but not to the point of holding up formulation of our rules. The members of the committee are as follows: Maynard E. Pirsig, Chairman from Minnesota; Richard Cosway of Washington; Bernard Hellring of New Jersey; Peter F. Langrock of Vermont; Wallace M. Rudolph of Nebraska; Alfred C. Hagen of Idaho and Jay Rabinowitz of Alaska.
The Chairman called for a recess until Friday morning at 9:00 o'clock a.m.
Judge Erickstad called the meeting to order at 9:00 o'clock a.m. on Friday morning, September 17. Judge Erickstad suggested postponing further consideration of Rule 11 in view of the fact that Mr. Robert Vogel, who is assigned the rule, was not in attendance at the committee meeting.
Agenda Item #8: This item was Rule 26.1, the interpretation of foreign law, which was to be prepared by Roger Persinger. Since Mr. Persinger was not in attendance the Chairman called for the next item.
Agenda Item #7: This item re Rules 37 and 39, prepared by Mr. Vogel who also was not present.
Agenda Item #9: The next item is Judge Smith's Rule 41, pertaining to Search and Seizure. The committee referred to portions of minutes read by Judge Smith concerning his draft of Rule 41. (See the minutes of May 15, 1969 - pages 21-23; also, minutes of November 20, 1969 - pages 19-21, and minutes of March 12, 1970 - page 3).
Judge Smith called the committee's attention to the Uniform Controlled Substances Act (1970) in Chapter 19-03.1 of the North Dakota Century Code. It was suggested that the relative newness of this Act might bear somewhat to our Rule on search and seizure especially as it pertains to narcotics and dangerous drugs. He also called attention to Section 29-29.1 NDCC dealing with administrative search warrants as affecting searches and seizures. Judge Smith quoted Section 29-29.1-01 WARRANTS TO CONDUCT INSPECTIONS AUTHORIZED BY LAW--1. Notwithstanding the provision of chapter 29-29 of the North Dakota Century Code, any official or employee of the state or of a unit county or local government of North Dakota may, under the conditions specified herein, obtain a warrant authorizing to conduct a search or inspection of property if such a search or inspection is one that is elsewhere authorized by law, either with or without the consent of the person whose privacy would be thereby invaded, and is one for which such a warrant is constitutionally required. 2. The warrant may be issued by any magistrate whose territorial jurisdiction encompasses the property to be inspected.
Judge Ilvedson read Section 29-29.1-05. COMPETENCY OF EVIDENCE DISCOVERED.--No facts discovered or evidence obtained in a search or inspection conducted under authority of a warrant issued under this chapter shall be competent as evidence in any civil, criminal or administrative action, nor considered in imposing any civil, criminal, or administrative sanction against any person, nor as a basis for further seeking to obtain any warrant, if the warrant is invalid or if what is discovered or obtained is not a condition, object, activity or circumstance which it was the legal purpose of the search or inspection to discover; but this shall not prevent any such facts or evidence to be so used when the warrant issued is not constitutionally required in those circumstances.
Judge Burdick pointed out that the administrative search warrant procedure
was not intended to be used as a basis for criminal prosecution under Section 29-29.1-06. NOT CRIMINAL SEARCH WARRANTS--. The warrants authorized under this chapter shall not be regarded as search warrants for the purpose of application of chapter 29-29 of the North Dakota Century Code.
Judge Ilvedson suggested that on the basis of recent proposed federal changes to Rule 41 dealing with search and seizure, noting the January 1970 issuance of the preliminary draft of proposed amendments to the Federal Rules of Criminal Procedure for the United States District Courts on page 72, it might be well that each of the rules be covered in light of the changes.
Judge Smith suggested that the committee review the proposed draft of Rule 41 as revised and thereby give him some guidance as to the committee's thoughts. Judge Burdick added that he thought the committee should consider rewriting Rule 41 entirely in the light of the new proposed amendment. He pointed out that the proposed Rule 41 of the January 1970 draft was designed in light of the language of the recent cases. On this basis and in view of the fact that it is the purpose of this committee to take advantage of the federal court decisions upon which many of the federal rules are based, that the committee redraft Rule 41.
Judge Erickstad suggested that the committee read the proposed changes and the advisory committee notes into the record. They are as follows: (Note: the subsection is read immediately followed by the advisory committee notes for that subsection)
"Rule 41. Search and Seizure
(a) AUTHORITY TO ISSUE WARRANT. A search warrant authorized by this rule may be issued by a federal magistrate or a judge of a state court of record within the district wherein the property sought is located, upon request of a federal law enforcement officer or an attorney for the government."
("Subdivision (a) is amended to provide that a search warrant may be issued only upon request of a federal law enforcement officer or an attorney for the government. There is apparently common law support for the use of the search warrant as a means of getting an owner's property back. (See the Texas statute in Vern. Ann. Code Crim. Proc., art. 18.03 (1966).) However, it seems apparent that the purpose of rule 41 is to authorize a governmental search in the interest of law enforcement, and the language of the rule is changed to make this explicit. In subdivision (a) the phrase "federal magistrate" is used as defined in rule 54.")
(b) PROPERTY WHICH MAY BE SEIZED WITH A WARRANT. A warrant may be issued under this rule to search for and seize an (1) evidence of the commission of a criminal offense; or (2) contraband, the fruits of crime, or things otherwise criminally possessed; or (3) weapons or other things by means of which a crime has been committed or reasonably appears about to be committed."
("The title to subdivision (b) is changed to make it conform more accurately to the content of the subdivision. Subdivision (b) is also changed to modernize the language used to describe the property which may be seized with a lawfully issued search warrant and to take account of a recent Supreme Court decision (Warden v. Hayden, 387 U.S. 294 (1967))and recent congressional action (18 U.S.C. Sec. 3103a) which authorize the issuance of a search warrant to search for items of solely evidential value. 18 U.S.C. Sec. 3103a provides that "a warrant may be issued to search for and seize any property that constitutes evidence of a criminal offense.
"Recent state legislation authorizes the issuance of a search warrant for evidence of crime. See, e.g., Cal. Penal Code Sec. 1524 (4) (West Supp. (1968); 111. Rev. Stat. ch. 38, Sec. 108-3 (1965); LSA C. Cr. P. art. 161 (1967); N. Y. Code of Cr. Proc. Sec. 792 (4) (McKinney Sup 1967); Ore. Rev. Stat. Sec. 141.010 (1963); Wis. Stat. Sec. 963.02 (10)(1967).
"The general weight of recent text and law review comment has been in favor of allowing a search for evidence, 8 Wigmore, Evidence Sec. 2148a (McNaughton rev. 1961); Kamisar, The Wiretapping-Eavesdropping Problem; A Professor's View, 44 Minn. L. Rev. 891 (1960); Kaplan, Search and Seizure: A No-Man's Land in the Criminal Law, 49 Calif. L. Rev. 474 (1961); Comments: 66 Colum. L. Rev. 355 (1966), 45 N.C.L. Rev. 512 (1967), 20 U. Chi. L. Rev. 319 (1953).
"The amendment is not intended to abrogate the protection of the Fifth Amendment against compulsory self-incrimination, so items which are solely "testimonial" or "communicative" in nature might well be inadmissible on those grounds. Schmerber v. California, 384 U.S. 757 (1966). The court referred to the possible Fifth Amendment limitation in Warden v. Hayden, supra:
'This case thus does not require that we consider whether there are items of evidential value whose very nature precludes them from being the object of a reasonable search and seizure. (387 U.S. at 303.)'
"It seems preferable to allow the Fifth Amendment limitation to develop as cases arise rather than attempt to articulate the constitutional doctrine as part of the rule itself."
"(c) ISSUANCE AND CONTENTS. A warrant shall issue only on an affidavit or affidavits sworn to before the federal magistrate or state judge and establishing the grounds for issuing the warrant. If the federal magistrate or state judge is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person or place to be searched. The finding of probable cause shall be based upon substantial evidence, which may be hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is factual basis for the information furnished. Before ruling on a request for a warrant the federal magistrate or state judge may require the affiant to appear personally and may examine under oath the affiant and any witnesses he may produce, provided that such proceeding shall be taken down by a court reporter or recording equipment and made part of the affidavit. The warrant shall be directed to a civil officer of the United States authorized to enforce or assist in enforcing any law thereof or to a person so authorized by the President of the United States. It shall command the officer to search, within a specified period of time not to exceed 10 days, the person or place named for the property specified. The warrant shall be served in the daytime, unless the warrant directs that it may be served at any time. The issuing authority may, by appropriate provision in the warrant, and for reasonable cause shown, authorize its execution at times other than daytime. It shall designate a federal magistrate to whom it shall be returned."
("The amendment to subdivision (c) is intended to make clear that a search warrant may properly be based upon a finding of probable cause based upon hearsay. That a search warrant may properly be issued on the basis of hearsay is current law. See, e.g., Jones v. United States, 362 U.S. 257 (1960); Spinelli v. United States, 393 U.S. 410 (1969); see also State v. Beal, 40 Wis.2d 607, 162 N.W.2d 640 (1968), reversing prior Wisconsin cases which held that a search warrant could not properly issue on the basis of hearsay evidence.
"The proposed rule requires that the affidavit be sufficient to establish that the hearsay evidence is credible (truthful) and reliable (that the informant has a factual basis for the information which he furnishes). The language is similar to that in proposed rule 4, and the discussion in the Advisory Committee Note to rule 4 is thus applicable here.
"The provision in subdivision (c) that the magistrate may examine the affiant or witnesses under oath is intended to assure him an opportunity to make a careful decision as to whether there is probable cause based upon legally obtained evidence. It seems desirable to do this as an incident to the issuance of the warrant rather than having the issue raised only later on a motion to suppress the evidence. See L. Tiffany,
D. McIntyre, and D. Rotenberg, Detection of Crime 118 (1967). If testimony is taken it must be recorded, transcribed, and made part of the affidavit or affidavits. This is to insure an adequate basis for determining the sufficiency of the evidentiary grounds for the issuance of the search warrant if that question should later arise.
"The requirement that the warrant itself state the grounds for its issuance and the names of any affiants, is eliminated as unnecessary paper work. There is no comparable requirement for an arrest warrant in present rule 4. A person who wishes to challenge the validity of a search warrant has access to the affidavits upon which the warrant was issued.
"The present requirement that the warrant require that the search be conducted "forthwith" is changed to read "within a specified period of time not to exceed 10 days." The present rule contains an inconsistency between subdivision (c) requiring that the search be conducted "forthwith" and subdivision (d) requiring execution "within 10 days after its date." The amendment resolves this ambiguity and confers discretion upon the issuing magistrate to specify the time within which the search may be conducted to meet the needs of the particular case.
"The rule is also changed to allow the magistrate to authorize a search at a time other than "daytime", where there is "reasonable cause shown" for doing so. To make clear what "daytime" means, the term is defined in subdivision (h).")
(d) EXECUTION AND RETURN WITH INVENTORY. The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt at the place from which the property was taken. The return shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, if they are present, or in the presence of at least one credible person other than the applicant for the warrant or the person from whose possession or premises the property was taken, and shall be verified by the officer. The federal magistrate shall upon request deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant."
"Subdivision (d) is amended to conform its language to the Federal Magistrates Act. The language "The warrant may be executed and returned only within 10 days after its date" is omitted as unnecessary. The matter is now covered adequately in proposed subdivision (c) which gives the issuing officer authority to fix the time within which the warrant is to be executed."
"(e) MOTION FOR RETURN OF PROPERTY. A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property on the ground that he is entitled to lawful possession of the property which was illegally seized. The judge shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted the property shall be restored and it shall not be admissible in evidence at any hearing or trial. If a motion for return of property is made or comes on for hearing in the district of trial after an indictment or information is filed, it shall be treated also as a motion to suppress under rule 12."
"The amendment to subdivision (e) and the addition of subdivision (f) are intended to require the motion to suppress evidence to be made in the trial court rather than in the district in which the evidence was seized as now allowed by the rule. In DiBella v. United States, 369 U.S. 121 (1962), the court, in effect, discouraged motions to suppress in the district in which the property was seized:
"There is a decision in the Second Circuit, United States v. Klapholz, 230 F. 2d 494 (1956), allowing the Government an appeal from an order granting a post-indictment motion to suppress, apparent for the single reason that the motion was filed in the district of seizure rather than of trial; but the case was soon thereafter taken by a District Court to have counseled declining jurisdiction of such motions for reasons persuasive against allowing the appeal: "This course will avoid a needless duplication of effort by two courts and provide a more expeditious resolution of the controversy besides avoiding the risk of determining prematurely and inadequately the admissibility of evidence at the trial ... A piecemeal adjudication such as that which would necessarily follow from a disposition of the motion here might conceivably result in prejudice either to the Government or the defendants, or both." United States v. Lester, 21 F.R.D. 30, 31 (D.C.S.D.N.Y. 1957). Rule 41 (e), of course, specifically provides for making of the motion in the district of seizure. On a summary hearing, however, the ruling there is likely always to be tentative. We think it accords most satisfactorily with sound administration of the Rules to treat such rulings as interlocutory. (369 U.S. at 132-133).
"As amended, subdivision (e) provides for a return of the property if (1) the person is entitled to lawful possession and (2) the seizure was illegal. This means that the judge in the district of seizure does not have to decide the legality of the seizure in cases involving contraband which, even if seized illegally, is not to be returned. The five grounds for returning the property, presently listed in the rule, are dropped for two reasons--(1) substantive grounds for objecting to illegally obtained evidence (e.g., Miranda) are not ordinarily codified in the rules and (2) the categories are not entirely accurate. See United States v. Howard, 138 F. Supp. 376, 380 (D. Md. 1956), in which it is said:
"While it has been said the rule is in the nature of a codification of existing law, I do not understand that it embodies in itself the whole of the law of search and seizure; nor do I think the rule is controlling here by reason of the phrase "(3) the property seized is not that described in the warrant." It is clear enough at least that a substantial portion of the money particularly described in the warrant was among the contents of the box seized. The rule also provides that if the motion is granted the property shall be restored unless otherwise subject to lawful detention. In my opinion all the contents of this safe deposit box were subject to lawful detention as there is a reasonable basis for contending that the contents of the box which were seized were the fruits of the alleged crime. Of course I do not intend to express any opinion on the merits of that point as it will be a matter for the trial court to determine. While I have concluded that the motion to require a return of all or part of the seized contents of the box and the motion to suppress the evidence thereof should be overruled by this court, I do so with the proviso that the ruling shall be without prejudice to a renewal of the motions in the trial court.
"My understanding of the law of search and seizure is in substance this. When a lawful arrest had been made there may be a valid search of the defendant and of the place where he is arrested if under his immediate possession or control, for things which may reasonably be thought to have some definite relation to the offense for which the arrest has been lawfully made. And similarly where a search warrant has been validly issued and executed, things found by the officers having reasonable relation to the purpose of the search warrant may likewise be seized and lawfully held in custodia legis."
"A sentence is added to subdivision (e) to provide that a motion for return of property, made in the district of trial, shall be treated also as a motion to suppress under rule 12. This change is intended to further the objective of proposed rule 12 which is to have all pretrial motions disposed of in a single court appearance rather than to have a series of pretrial motions made on different dates, causing undue delay in administration."
"(f) MOTION TO SUPPRESS. A motion to suppress evidence may be made in the court of the district of trial as provided in rule 12."
"Subdivision (f) is new and reflects the position that it is best to have the motion to suppress made in the court of the district of trial rather than in the court of the district in which the seizure occurred. The motion to suppress in the district of trial should be made in accordance with the provisions of rule 12."
"(g) RETURN OF PAPERS TO CLERK. The federal magistrate before whom the warrant is returned shall attach to the warrant a copy of the return, inventory and all other papers in connection therewith and shall file them with the clerk of the district court for the district in which the property was seized."
"Subdivision (g) is changed to conform to subdivision (c) of the present rule which requires the return to be made before a federal judicial officer even though the search warrant may have been issued by a nonfederal magistrate."
"(h) SCOPE AND DEFINITION. This rule does not modify any act, inconsistent with it, regulating search, seizure and the issuance and execution of search warrants in circumstances for which special provision is made. The term "Property" is used in this rule to include documents, books, papers and any other tangible objects. The term "daytime" is used in this rule to mean the hours from 6:00 a.m. to 10:00 p.m. according to local time."
("Subdivision (h) is present rule 41 (g) with the addition of a definition of the term "daytime.")
Judge Ilvedson referred to the advisory notes where it notes that "Recent state legislation authorizes the issuance of a search warrant for evidence of crime." He mentioned that North Dakota has passed such a law in the 1971 legislature. Citation to the above is from 29-29.02 NDCC (pocket part), adding subsection 4, "When it is any property that constitutes or may constitute evidence of a criminal offense in violation of the laws of this state."
Upon conclusion of the reading of Rule 41 (c) and explanatory notes, there was a discussion as to the requirement for issuance of the warrant. The question being whether issuance of the warrant should be based upon testimony or affidavit of the requesting party. At the conclusion of the reading of the entire rule, the discussion centered around subsection (h) which says "This rule does not modify any act, inconsistent with it, regulating search, seizure and the issuance and execution of search warrants in circumstances for which special provision is made."
Judge Erickstad pointed out that it would be necessary to delete that part if the committee intended to supersede all of the statutes at the same time.
John Shaft noted that in section 29-29.03 NDCC the legislature used the language, "and particularly describing the property and the place to be searched." In comparing this with the proposed rule 41 (c), he felt that this rule did not really accomplish a great deal concerning the particularity with which the property sought must be described and in fact the rule seems to be less specific.
At this point the Chimel case (Chimel v. Calif. 393 U.S. 958 (1968), was raised to answer how far the physical search can extend in the area to be searched. That is, whether the items must be described with particularity in the warrant and if those items are not described, whether they can be seized.
Judge Burdick suggested that in line 35 of the January 1970 draft of the proposed changes of the Federal Rules as to Rule 41, subsection 3 on page 73, the rule could be strengthened by adding, after the word property, the phrase "with reasonable certainty." This he felt might satisfy constitutional requirements while at the same time allowing for some flexibility.
Judge Smith requested that the committee consider the proposed Rule 41 of the 1970 Revised Federal Rules of Criminal Procedure, to be his draft and that the committee proceed to work from this draft as though it were his. He pointed out that in revising his own particular draft that the language in his revision would be essentially the same as the one in the proposed draft.
A discussion followed concerning Section 18 of the North Dakota Constitution. Judge Ilvedson pointed out that the wording in the Constitution which is the verbatim reproduction of the Fourth Amendment of the Federal Constitution states that "no warrant shall issue but upon probable cause, supported by oath or affirmation, particulary describing the place to be searched and the persons and things to be seized."
Judge Muggli supported Judge Smith's proposal to substitute the proposed federal rule of January 1970 as the North Dakota proposed Rule 41, however he inquired as to what general recommendations Judge Smith would propose to the federal draft to make it applicable to the county and justice court system of North Dakota.
Judge Smith suggested that we should still have the district court of the state to be the repository in each county wherein all warrants should be returned.
Judge Erickstad suggested that a motion would be in order to adopt Rule 41 of the Proposed Federal Rules of January 1970.
Judge Smith then MOVED to adopt the Preliminary Draft of Proposed Amendments to the Federal Rules of Criminal Procedure for the United States District Courts of January 1970 as the working draft for Rule 41; subject to amendments in the presentation by himself and in the course by all of the members. The motion was seconded by judge Muggli.
John Graham suggested that in the interest of keeping the committee parliamentarily sound, it ought to reconsider the motion to 41 (b) which has already been adopted. The MOTION was made by Gerald Glaser that the committee reconsider and carry forth the affirmative action inserted in Judge Smith's original motion, that is to reconsider the adoption of Rule 41(b). Motion seconded by Judge Muggli. The motion carried by a unanimous vote.
Judge Smith notes for the record that this draft appears to be one which generally would be workable for the state courts with a minimum amount of modification and he recommended that the committee consider it subsection by subsection and that the committee preserve the idea that search warrant material is ultimately returnable to the Clerk of the District Court in each county. He pointed out that the reason for having this single repository is in the application of this rule to municipal courts where it has been held that this rule does not apply to municipal courts because municipal judges are not magistrates except in counties where there is no Court of Increased Jurisdiction.
The committee began with subsection (a) of Rule 41. AUTHORITY TO ISSUE WARRANT. It was agreed that subsection (a) would require some revision. Judge Burdick suggested that in adopting subsection (a) the committee consider using a federal magistrate as well as a judge of the state to be the issuing authority for warrants. He noted that the federal rules allow state judges to be issuing authority for federal warrants.
Question of defining magistrate was raised and it was answered by Judge Muggli by way of citing Section 12-01-04. Definitions. NDCC. 12. "Magistrate" signifies any judge of the supreme court or of the district court, county justice, police magistrate, and such other officer or officers as are authorized and empowered to issue warrants for the arrest of persons accused of crime;"
Gerald Glaser suggested that a federal magistrate cannot derive any power from a state statute but rather only derive power from a federal statute and vice versa.
A discussion followed of the description of a police magistrate and the definition thereof.
Judge Smith PROPOSED Rule 41 (a) as follows: "(a) AUTHORITY TO ISSUE WARRANT. A search warrant authorized by this rule may be issued by a state or federal magistrate within the district or within the county wherein the property sought is located, upon request of an attorney for the state."
A question was raised concerning the term attorney in the fourth from the last word as it being too restrictive. Various alternative terms were suggested such as law enforcement officer, prosecuting attorney and peace officer. The issue was narrowed to a choice of either the term of peace officer or law enforcement officer. It was pointed out that both of these terms have been used interchangeably at various times in a number of rules. On the question of who is a peace officer, Paul Sand noted that highway patrolmen are now considered peace officers for certain purposes, citing Section 39-03-09 of the North Dakota Century Code had been amended to add sections 11 and 12.
Judge Muggli cited Section 12-01-04, sub 13 of the North Dakota Century Code defining peace officer: "Peace officer" signifies any sheriff, coroner, constable, policeman, or marshal and any other officer or officers whose duty it is to enforce and preserve the public peace;".
Judge Smith suggested the language include the broadest possible definition of law enforcement officers or peace officers. This would enable various law enforcement officials to apply for search warrants who would otherwise not be able to qualify.
Judge Burdick suggested that the qualification of 41 (a) be "upon request of a law enforcement officer having authority to execute a search warrant."
John Graham noted that Federal Rule 41 (a) might have been added because of the need for requests for search warrants for non-law enforcement purposes.
Judge Muggli indicated that our present statute apparently doesn't require the individual requesting the search warrant to be a law enforcement officer. In the execution of the warrant, Section 29-29-07 NDCC provides, "A search warrant in all cases may be served by any of the officers mentioned in its direction, but by no other person except in aid of the officer, on his requiring it, he being present and acting." The form that we have in our statute is to any Sheriff, constable, marshal or policeman in the county of blank.
Judge Smith proposed that the rule provide that the warrant may be directed to any peace officer in the state.
Judge Erickstad questioned the wisdom of making this request so specific that it would create traps for those law enforcement officials who are required to utilize such warrants. He added that at the present time we apparently have no restriction but if we include this provision, we will be restricting and preventing people with knowledge of very important information from actually carrying out the purpose for which the search warrant was intended. The reason for not allowing the general public to secure search warrants becomes a question of time, that is, the practicality of having the magistrate devote too much tine to citizens who desire to secure a search warrant. There is also to be considered the question of judgment; that is, as exercised by a law enforcement officer trained in the law in deciding whether or not the appropriate case warrants the issuance of such a search warrant as opposed to the average untrained citizen.
Judge Smith commented that to his recollection in his ten years on the bench, no private citizen has ever come in to ask for a search warrant under the old provision.
Judge Muggli pointed out that the difficulty in restricting the issuance of search warrants to law enforcement officials is that in some cases they either refuse to act in certain matters or they have an interest in covering these matters up. Paul Sand indicated that he was aware of several instances in which this situation occurred. He added, however, that in such instances the District Judge can appoint or direct the Attorney General or his Assistant
to come in and act. There is also further provision that the costs can be deducted from the salary of the State's Attorney.
The committee recessed for noon lunch.
Judge Erickstad called the meeting to order at 1:30 p.m. Upon reconvening Judge Smith presented his PROPOSAL for the language to be included in Rule 41 (a) as follows: "41 (a) AUTHORITY TO ISSUE WARRANT. A search warrant authorized by this rule may be issued by a state or federal magistrate within the county wherein the property sought is located." This proposal was seconded by Mr. Glaser and Mr. Graham.
Judge Burdick opposed the proposal indicating that there should be a limiting factor as to those who are empowered to request a search warrant. That is, the request should be in the interest of law enforcement and the request be made by a law enforcement officer as opposed to opening the way for the average citizen to request a search warrant.
The question was raised by John Graham concerning a inter-county transportation of stolen property, and whether it would be possible for the warrant to issue from the county where the property was stolen. It was pointed out, however that under the present language, this is not permissible.
Judge Burdick indicated that his amendment to the original draft of Rule 41(a) which has been abandoned included language for this provision. Judge Burdick suggested that this language be introduced in the new adoption of 41(a).
Judge Erickstad suggested that in keeping with the provisions of the federal rule, the term district in its federal connotation contemplates a large area, in some cases an entire state or large portion thereof. In applying the rules to this state, the term district connotes an area the size of a county. He questioned whether there need be any restriction as to location of the stolen property or where it was originally located so long as it is within the area of the state or within the judicial district.
Judge Burdick indicated that he would not object to language to the effect that the warrant would be serviceable within the territorial jurisdiction of the magistrate wherein the property sought is located or from which it had been taken.
Gerald Glaser pointed out that such language unduly restricts the power of a magistrate. He noted that at the present a city magistrate can issue a search warrant for property located outside of the city limits but questioned the territorial jurisdiction of a Supreme Court Judge with respect to search warrants.
By way of comment, Judge Smith suggested that North Dakota had a constitutional provision in which the authority of a police magistrate or municipal judge to act ex officio as a committing magistrate ceases when a county court of increased jurisdiction is established and by the same token, where there is no county court of increased jurisdiction, the municipal judge is given such power.
Judge Smith agreed to revise his draft to include Judge Burdick's proposal that the phrase "or from which it was taken" be added to his motion. This was seconded by Gerald Glaser and John Graham, who had seconded Judge Smith's proposal before the change. Judge Erickstad called for the question on Judge Smith's proposal to Rule 41 (a) now including the language "within the county wherein the property sought is located or from which it has been removed." It is noted that Judge Burdick at this point indicates displeasure with the proposal.
Judge Ilvedson in support of Judge Burdick's position, notes for the record that the advisory committee notes for the federal proposal of 41 (a) on page 76 of the January 1970 edition, states "the reason that they have adopted this provision that is, 'upon request of a federal law enforcement officer' there is apparently common law support for the use of a search warrant as a means of getting an owner's property back." This indicates
that the practice has existed for private citizens to use a search warrant for the purpose of getting some of their property back.
Judge Erickstad then called for the question, that is, those in favor of the Smith proposal as most recently stated. The above MOTION carried with the lone dissenting vote of Judge Burdick.
Judge Burdick noted for the record the language that he had PROPOSED for the motion which did not prevail. That is as follows: Place a comma after the word removed, and then insert the words "upon request of a peace officer or a prosecuting attorney of statutory jurisdiction."
Judge Erickstad urged the committee to move on to 41 (b) and called on the committee draftsman, that is Judge Smith, to propose the changes which he wishes to offer. Judge Smith MOVED to adopt Rule (b) without any
amendment from the federal rules. This motion was seconded by Judge Muggli and a discussion followed.
At this point Gerald Glaser questioned the numbering system that had been adopted by the committee to determine whether they are the same as the federal rules. After much discussion it was decided as consensus of the committee that the numbering system should be as follows: The numbering system shall start with a small (a) followed by a number, (1), followed by the lower case roman numeral (i), followed by a large capital (A). This numbering system, by way of note, is the numbering system that the committee is now adopting is the official numbering system of the National Conference of Commissioners as well as the same used by the federal system. Judge Burdick explained the operation and function of this numbering system as follows: "Let's suppose that there is a break within the only paragraph of the section and it comes down to a break - as if it says in the follow order, then if you don't have a subparagraph (a) and subparagraph (b) then your first break is by numeral - the numeral in parenthesis because it is the first break of a paragraph. It's still the only paragraph in there so you don't use a letter (a) to identify it - you use the number (1) then when there is the break within the paragraph but if you have two paragraphs, this is two main paragraphs (a) and (b), but if the first break occurs within a single paragraph section or rule, then it becomes 1, 2 and 3 in parenthesis."
Judge Erickstad states that barring any objection, he will call the QUESTION regarding the adoption of subsection (b) as proposed by Judge Smith. The vote is favorable and subsection (b) is adopted.
After the vote was taken, Gerald Glaser raised a question concerning the words "criminal offense" and "crimes" in subsection (g). It is his position that these words defined would not include a violation of municipal ordinances and therefore, a search warrant could not issue for violation of a municipal ordinance. The reason is that a municipal ordinance is not necessarily a public offense. It was pointed out then that in various rules, reference is made both to "offense charged" as well as "offense." For example: in Rule 4 reference is made to offense charged; Rule 5 speaks of the offense; and Rule 7 refers to the offense charged in several places. It is noted that Title 40 NDCC speaks to when a police magistrate or a municipal judge can issue a warrant for violation of a city ordinance.
Judge Erickstad noted that there is no present authority for a police magistrate or municipal judge to issue a search warrant unless he is acting ex officio in a capacity of a county judge.
Gerald Glaser made reference to Section 12-01-06 NDCC which defines "crime," pointing out a crime or public offense is an act committed in violation of a statute forbidding or commanding it. It was pointed out that if an offense was criminal in nature and its sufficient stature, it would be covered in the North Dakota Century Code and if the violation were not of sufficient stature, it would appear that a search warrant would not be necessary. This also serves as a measure of protection against abuses of search warrants by Municipal Judges who are not law schooled trained personnel. It was noted by Mr. Glaser that the municipal judge of the City of Bismarck, Harry Pearce, has exercised his discretion in issuing search warrants for violation of municipal law. He suggested the committee inquire into this practice and question Mr. Pearce as to the authority he felt that he had for such action. Mr. Pearce was called and agreed to appear before the committee on Saturday morning, September 18. It was decided
by the committee that in view of the fact that the presentation by Municipal Judge Harry Pearce might shed some light on the proposed rule, that further action on subsection (a) and (b) would be deferred with a provision that these subsections are not closed and could be reexamined in the event that new light was shed upon them in Mr. Pearce's presentation on Saturday morning.
Judge Smith made a MOTION that subsection (c) as written in the January 1970 Preliminary Draft be considered and adopted with the following initial amendments:
"(c) ISSUANCE AND CONTENTS. A warrant shall issue only on an affidavit or affidavits sworn to before a state or federal magistrate and establishing the grounds for issuing the warrant. If the state or federal magistrate is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person or place to be searched. The finding of probable cause shall be based upon substantial evidence, which may be hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is factual basis for the information furnished. Before ruling on a request for a warrant the state or federal magistrate may require the affiant to appear personally and may examine under oath the affiant and any witnesses he may produce, provided that such proceeding shall be taken down by a court reporter or recording equipment and made a part of the affidavit. The warrant shall be directed to a peace officer of the state authorized to enforce or assist in enforcing any law thereof. It shall command the officer to search with deliberate speed and within a period of time not to exceed 10 days, the person or place named or the property specified. The warrant shall be served in the daytime, unless the warrant directs that it may be served at any time. The issuing authority may, by appropriate provision in the warrant, and for reasonable cause shown by affidavit, authorize its execution at times other than daytime, and as to movables, it may for reasonable cause shown by affidavit authorize it to be executed anywhere within the state. It shall direct that it shall be returned to the magistrate who issued it."
This motion was seconded by Mr. Graham. Judge Smith offered his explanation for those changes which he has made other than the obvious changes require to conform to state rather than federal law practice. One change was in the period of time within which to serve the warrant. Judge Smith's position is that the rule should not limit the serving officer to a specific number of days or hours but that he be permitted to serve it at his pleasure within the ten day period. In answer to a question regarding the phrase "with deliberate speed", Judge Smith indicated that it was his feeling that the search warrant should be executed as soon as possible while permitting the serving officer a degree of latitude in which to serve the papers, but limiting the time to a period not to exceed 10 days. The second change concerned movable property, in which Judge Smith wanted to distinguish between the authorization to issue a warrant to search a specific location or those to search where the object is moveable and has been moved out of the county. With regard to the issue of warrants at night, it was noted that our present North Dakota law provides that if the affiants are positive that the property is in a specific place, then the magistrate may insert the expression that the warrant may be served at anytime during the day or night.
Paul Sand objected to the word affidavit in line 68 after the words "cause shown" because, in his words, "it leaves me with the impression that other evidence could not be used, it would all be by affidavit."
Judge Smith indicated the willingness to delete the phrase "by affidavit" at the point mentioned as well as in the next clause.
Judge Burdick PROPOSED inserting the following language: "reasonable cause therefor having been shown," which explains the necessity for executing the warrant at a time other than the daytime. This is meant to be a substantive provision as a prerequisite to the issuance of a warrant that it is to be executed at other times than daytime. Under Judge Burdick's proposal the phrase "reasonable cause therefor having been shown" doesn't imply that this must be contained in the warrant.
Judge Smith agreed to incorporate this phraseology in his draft.
Judge Burdick then suggests that in line 35 and 36 on page 73 that the committee apply the language of the Constitution so that line 35 would read "a warrant particularly identifying the property to be seized and naming or particularly describing the person or place to be searched." This would parallel the constitutional intent. There were two opposing points of view to this proposal. First, the North Dakota State Constitution is almost identical with the Federal Constitution except for two minor changes, that is a capital "0" in oath and a comma after the second "and," and that being the case, and considering that the original drafting committee had not seen fit to include such language requiring a minimal description necessary to satisfy that particular language, it would follow that we should not impose such a restriction on ourselves. The second point is that the language of our present constitution might be changed and we know not what the new language would be.
A point that was raised by Gerald Glaser is that if we as a committee change the rule to include the restrictive language or these restrictive words, it would then follow that the interpretation of our language in comparison with the language in the federal rules would indicate that we had intended something more restrictive.
Paul Sand suggested that use of the constitutional language in this context is inappropriate because it, the Constitution, talks of issuing warrants upon probable cause and therefore it is the probable cause which must be supported by oath or affirmation particularly describing and the item to be seized is not the warrant which particularly describes.
Judge Muggli, in offering a further opposition to Judge Burdick's motion, said that by using language different from that in the federal rules, aside from that required to conform with our state requirements, we would be losing the benefit of the cases that have been decided under the particular rules that we are modeling ourselves after.
Judge Burdick reread the language which he intended to use in his revision; "He shall issue a warrant particularly describing the place to
be searched and the things to be seized." This language he said makes it clear that the warrant itself should specify this.
Judge Murray sitting as Chairman for Judge Erickstad called for the question on Judge Burdick's MOTION. The motion was defeated - two ayes and 8 nayes. This takes the rule back to Judge Smith's original motion.
Gerald Glaser suggested that in lines 29, 31 and 32, and 44 on page 73, and lines 70 and 71 on page 74, the term 'magistrate' is sufficient without having to refer to the full phrase "federal magistrate or state judge," which has already been discussed or described in subsection (a). Following a decision on this last point, the committee focused on subsection (d) and discussed the return of the warrant (to whom the warrant shall be returned). It was Judge Smith's point that the warrant shall be returnable to the magistrate who issued it and that he would have the responsibility for the warrant.
Judge Burdick's position was that the warrant should be returnable to any judge and as such this would give greater flexibility to the issuance and returnability.
Judge Muggli pointed out that under the present search warrant statute, Sections 29-29-06 and also 29-29-12, the return is to the magistrate who issued the warrant.
Judge Erickstad entertained a MOTION by Judge Muggli to reinstate the original language on lines 58 and 59. Judge Smith opposed this amendment. He is in favor of retaining the old language; which directs the peace officer to execute the search warrant as soon as possible but at the same time limits him a specified 10 day period of time in which to do it.
Judge Erickstad called for the question on Judge Muggli's MOTION to restore the language to lines 58 and 59. The motion carried; two members opposed are John Graham and Judge Smith.
The MOTION remaining before the committee is that of Judge Smith's of Rule 41 (c) as amended. Gerald Glaser questioned the language in the rule which requires an affidavit as a prerequisite to the issuance of a warrant. He recommended that the issuance of a warrant not be conditioned upon an affidavit. There was a good deal of discussion on this point.
Judge Burdick's point of view is that the warrant should be able to issue on oath or affirmation, based on testimony that can be transcribed.
Judge Erickstad pointed out that the meaning of the term affidavit is qualified-starting with lines 43 to 50. This language contemplates within the meaning of an affidavit, that which has been taken down by a mechanical device or by a court reporter and which is ultimately typed up.
Gerald Glaser pointed out that lines 44 and 45 read, "may require the affiant to appear;" the affiant according to his understanding will be the person who has already signed the affidavit. The affiant being one who swears to and signs a written statement.
Paul Sand noted that the language in lines 49 and 50, "and made part of the affidavit," seems to support Mr. Glaser's position.
Roger Persinger noted for the record that in the advisory notes on page 78, it says: "The Provision in subdivision (c) that the magistrate may examine the affiant or witnesses under oath is intended to assure him an opportunity to make a careful decision as to whether there is probable cause based upon legally obtained evidence." The discussion continued as to the requirements for the legal sufficiency required to uphold the warrant.
Judge Ilvedson's position was that the affidavit should be required from the outset to conform with the federal rules and our state law. This he said is an established procedure.
Judge Muggli read for the record the statute in 29-29-04: "Sworn complaint must be made--Depositions of witnesses.--The magistrate, before issuing a search warrant, must examine on oath the complainant and any witnesses he may produce, and must take their affidavits in writing and cause them to be subscribed by the parties making them. The depositions must set forth the facts tending to establish the grounds of the application or probable cause for believing that they exist." This statute as Judge Muggli points out indicates that at the present time the affidavit must be signed.
Gerald Glaser noted the definition of affidavit in Section 31-04-02; "An affidavit is a written declaration under oath made without notice to the adverse party." It was pointed out here that there are times where it would be impractical to formally produce a writing subscribed before the Judge sufficient to support a warrant.
Judge Burdick suggested that it would be possible for the Judge to interrogate a witness under oath, obtaining all the information necessary and transcribe it. His position was that live testimony should be permissible.
Judge Muggli suggested that since the committee could not arrive at any conclusions, it might be helpful if the two opposing proponents, that is Judge Smith and Judge Burdick, prepare a tentative draft of their positions for the committee's consideration.
Judge Erickstad acting on Judge Muggli's suggestion asked Judges Burdick and Smith to prepare and submit proposed drafts for proof of the source of the evidentiary facts. He pointed out that what the committee was doing was not reducing the facts but rather altering the method of
proving them or serving them. He also indicated that the constitutional language does not require a written statement, but rather that such requirement is a result of custom and usage.
Judge Ilvedson agreed that an affidavit should not be required to support a warrant in every instance but indicated his reluctance to support this measure because he felt that there was a strong possibility that this provision would be taken advantage of and that a warrant without the support of an affidavit would become the rule rather than the exception.
The meeting was adjourned to reconvene Saturday morning at 9:00 o'clock a.m.
The meeting reconvened on Saturday morning at 9:30 a.m. Absent from this portion of the conference meeting were: Mr. Persinger, Judge Ilvedson, Mr. Vogel and Judge Murray.
Judge Burdick prepared a PROPOSED REVISION for 41 (c) which incorporates the concept that the sworn material may be by examination before the magistrate, if in his discretion he wishes to receive it in that form. Judge Burdick states that he further separated subsection (c) into three subsections. Judge Burdick's PROPOSAL as submitted is as follows:
"(c) Grounds for Issuance. A warrant shall issue only if the magistrate is satisfied that the grounds for issuing it are established upon probable cause, supported by oath or affirmation, in affidavit form subscribed by the affiant before him or, in the magistrate's discretion, by examination of any person before him. In the latter case, the examination shall be recorded by a court reporter or by recording device and transcribed under the direction of the magistrate. The finding of probable cause shall be based upon substantial evidence which may be hearsay in whole or in part, if there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished."
"(d) Contents of warrant. The warrant shall be directed to a peace officer authorized to enforce or assist in enforcing any law in this state. It shall describe with particularity the property to be seized and name or describe with particularity the person or place to be searched. It shall command the officer to search, within a specified period of time not exceeding 10 days, the person or place named or described for the property specified. It shall also designate the magistrate to whom it shall be returned."
"(e) Service of warrant. The warrant shall be served in the daytime, unless the warranty directs that it may be served at anytime. Reasonable
cause having, been shown, the magistrate, by appropriate provision in the warrant, may authorize its execution at times other than daytime."
Judge Burdick explained that this is a simplified statement containing the essence of the rule in a more orderly fashion. It carrys out the primary thought that the oath or affirmation may be conducted by examination of the person rather than by affidavit if the magistrate sees fit to accept the testimony in that form.
John Shaft questioned Judge Burdick as to the inclusion of a provision to include searching of a movable. Judge Burdick answered by stating he didn't feel there was a necessity for describing the movable. Judge Burdick MOVED the adoption of his proposed amendments to Rule 41. This motion is seconded by Gerald Glaser. A discussion follows.
Judge Erickstad questioned the need to renumber the paragraphs. Judge Burdick responded by saying, that this subdivision heading was not crucial and that subdivision headings were suggested merely to aid in research.
Judge Muggli questioned the use of the word "particularity" as included in Judge Burdick's proposal.
John Shaft noted, by way of answer to Judge Muggli's question, that in his research of the Iverson case, he became aware of five or six decisions handed down by the court of appeals dealing with the particularity issue as provided in the constitution. He noted that an issuing order was denied in each.
Judge Muggli was in favor of Judge Burdick's adoption which gives discretion to the magistrate to determine whether to rely on an affidavit or oral testimony. He does point out, however, that the use of the word examination should be modified to include examination under oath.
Judge Burdick felt that from a constructional point of view, this language is clear.
Gerald Glaser raised the question in subsection (g) pertaining to return of the papers to the clerk; that is, what should be done with the transcript and who has possession.
Paul Sand again raised the particularity in description argument. He pointed out that an interpretation of the "particularity" question in light of Section 18 of the North Dakota Constitution, pertains to the manner in which the warrant is obtained, rather than the contents of the warrant itself.
Judge Burdick responded by saying that it was the warrant that required particularity in its description and a departure from this results in unreasonable searches and seizures.
Judge Smith indicated that it has been his practice in the application of the rules to make sure the warrant states the property and the things with same particularity as is in the affidavit.
John Graham noted that in 41 subsection (b) of the federal rules as revised in which the committee struck the "grounds for issuance" clause and substituted the heading "property which may be seized." He compared this with Section 29-29-02 NDCC which also describes kind of property which may be seized under warrant.
Judge Burdick pointed out that his subsection (c) relates to the grounds for issuance.
Judge Erickstad indicated his apprehension for dividing the subsection into three parts. He suggested that the committee either accept or reject the proposal or make other amendments.
A point was raised by Paul Sand on the "particularity" question as it relates to a warrant to search for drugs. He questioned whether the warrant could describe drugs as such in a general vernacular or must they be specifically described as to the chemical contents.
John Shaft made reference to a case within which designated furs were seized and these furs then turned out to be the wrong ones. He further pointed out and cited the following cases: Marion vs. United States 275 U.S. 192, 72 Lawyers 231 and Berger vs. New York 388 U.S. 41, 18 Lawyers Edition Section 1040 (1970). He also noted the Fourth Amendment requirement that a warrant particularly describes the place to be searched and the person or things to be seized, repudiate these general warrants and make general search impossible. This prevents the seizure of anything under a warrant not described as to be taken, nothing is left to the discretion of the officer executing the warrant.
Judge Burdick pointed out that annotations could be found in the Code on the general point of particularity. He referenced the Fourth Amendment to the United States Constitution citing 47 ALR 2d 1444 and 49 ALR 2d 1209.
At this point in the proceedings, Mr. Harry Pearce, the Municipal Judge for the City of Bismarck, was introduced for the purpose of reporting to the committee on the issuance of search warrants by a municipal magistrate. Mr. Pearce indicated that he was not entirely certain but it was his suspicion that the Municipal Court in Bismarck is perhaps the only Municipal Court in the state actively involved in issuing search warrants for violations of municipal ordinances. This practice was initiated on his decision about six months ago which would be about May or June of 1971.
He said that the circumstances which gave rise to this decision was that he was approached by law enforcement agencies and others of the City on the question of a local ordinance which made the possession of various drugs and narcotics an offense; and that there had been no prosecution under that ordinance. The question arose as to whether there could be a prosecution under that ordinance. As a practical matter to enforce this type of drug ordinance, it is necessary to gather evidence and to implement this function, it is required that search warrants be issued. This raises the question as to whether a municipal court has inherent powers to issue search warrants and more specifically, search warrants for evidence relating to violation of a municipal ordinance as opposed to a state statute. Judge Pearce said that based on his research he decided that the Municipal Court did have the power to issue a search warrant relating to the violation of a municipal ordinance. However, he indicated that there was a lack of authority on the question. Furthermore the only case that he could find was State vs. Quigg 17 Southern 2d 697 (1944), a decision in the Florida Supreme Court, which held contrary to his position. Section 29-29-02 NDCC, which sets forth the grounds for issuance of a search warrant, as an apparent reason for such a holding, noting in particular subsection 3 as amended which talks about means of committing a public offense. This is the argument that has been put forth, the point being which is that a violation of a municipal ordinance is not a public offense. He further cited Section 29-29-16 which states that the magistrate must bind together the depositions or affidavits together with the search warrant and return, and the inventory, and return them to the next term of the district court having authority and jurisdiction to inquire into the offense.
It appears then that from that provision it was never envisioned that a Municipal Judge would act or would issue a search warrant for violation of a municipal ordinance. The only function then for the Municipal Judge would be to act as a committing magistrate and perhaps issue a warrant that would be returned to the District Judge for violation of a state statute.
Judge Pearce presented two questions which he said points out the problem. One, is whether he as Municipal Judge, under Section 29-01-14, could issue a search warrant relating to a violation of a state statute, which warrant is returnable to the district courts; secondly, can he as a Municipal Judge issue a search warrant for violation of a municipal ordinance which is returnable to his own Court and relates to an offense of which he has exclusive jurisdiction. To the first question, he felt that the answer clearly should be in the affirmative, citing Section 29-29-06. He noted that in the draft of that provision, it is apparently intended that the police magistrate issue the warrant because the signature line of the form itself indicates police magistrate or county justice. In such a case, however, the intention was that the Municipal Judge, as a magistrate, under Section 29-01-14 be called upon to issue a search warrant relating to a violation of a state statute and the warrant be returnable to the District Court. He noted further that the state statutes are silent about the power of a Municipal Judge to issue a search warrant for violation of municipal ordinances. That takes into consideration the basic provisions under the criminal procedure chapter and also Chapter 40 relating to Municipal Judges.
Judge Pearce pointed out that as a U.S. Magistrate, he could parallel the functions of that position with that of a Federal Judge and by the same token the position of a municipal magistrate with that of a state judge. Taking that position, he said that he has no problem with the issuing of search warrants in cases where he had no jurisdiction to try the case.
Judge Erickstad, by way of introducing Judge Pearce to the problem at hand, specifically noted the problem area for which the committee had invited Judge Pearce to speak, cited Rule 41 (b) of the Proposed Amendments to the Federal Rules noting on page 72, subsection 1 of (b) the wording "Property which way be seized with a warrant, and then it proceeds ... A warrant may be issued under this rule to search for and seize any (1) evidence of the commission of a criminal offense." He pointed out that
the committee had specific questions under the language dealing with the term "criminal offense"; whether a judge of a municipal court would be permitted to issue a search warrant if the committee adopted that language. That is, for violation of a municipal ordinance not acting as an ex officio as a state office but acting as a municipal court in connection with the violation of a city ordinance.
A discussion followed between the members of the committee regarding the terms "criminal offense" or "public offense" and "offense" as they applied in the various statutes and rules.
Judge Pearce said that it was his point of view that where the Bismarck ordinances contained a general punitive penalty clause, they are indeed public offenses, criminal in nature, and, therefore, criminal procedure applies. This is true regardless of whether the city ordinance is a punitive offense under the state statutes or not, and on that basis it would be Judge Pearce's position that the committee should leave the language as it is and under that language the Municipal Judge would be permitted to issue search warrants returnable to their court for violation of city ordinances, not also criminally prohibited by state law. The one difficulty that Judge Pearce had with this position was with the decisions of the Supreme Court where the nature of the violation was determined by the penalty. The question then follows, that if there is no penalty or prison term is there criminal offense? This position, then, raises the constitutional question that is, if the Court does not treat the offense as criminal, would all the constitutional safeguards be employed?
Judge Pearce indicated that he would be reluctant to make any distinctions as to the type of offense, considering those that are malum prohibitum and those that are malum in se. He went on to say that one method that the courts have used in this state to determine the issue has been what physically can happen to an individual who is found guilty of the charge? The determining factor seems to turn on whether the individual defendant can be deprived of his liberty by being placed in custody; in this case there is no question but what this would be a crime. Furthermore, the whole concept of our constitutional provisions are geared to the protection of the criminal defendant against his being deprived of his liberty without due processing, etc. A more difficult situation is presented when one considers violations of municipal ordinances such as zoning or health and housing standards in which the violator could be imprisoned or fined. It is questionable, however, whether these crimes can be thought of as crimes under the common law. As far as legislature is concerned, there are some fundamental rules to determine what the legislature can make a criminal offense. However the limitations are nebulous at best and it is generally held that common law and custom have frequently determined the nature of a violation. It was Judge Pearce's opinion that municipal ordinances are directed to a much broader problem than the legislature contemplated in determining what was criminal for state purposes.
Municipal ordinances are designed to allow for the efficient running of the City, placing the various guidelines on the citizens of the City for various reasons of health or safety and other welfare. The problem is where to draw the line and the answer to the problem seems to be that this becomes a matter of discretion for the judge or magistrate. Also to be considered is the fact that there are various civil remedies for relief of violations of city ordinances. For example, injunctive relief or contractual relief is available and was used in a case where an individual failed to demolish his home that was deemed substandard by the City because it didn't meet the building code. It was clear that the civil remedy could be invoked and that the house torn down and the cost assessed to the individual rather than impose criminal sanction in this case.
A further point brought out by Judge Pearce is the problem of Municipal Judges of the small towns and county judges in some counties who are nonlaw trained people. They lack the legal expertise and training necessary to sign a search warrant or an arrest warrant which are potentially dangerous tools that can become legal weapons in the hands of a non attorney
empowered to administer such documents. On this basis Judge Pearce felt that there should be some restriction placed on non lawyer municipal judges to issue search warrants. He indicated that from his own personal knowledge based on questions in phone calls and conversations that he has had with some of these non-law trained municipal judges and county judges, that their command of legal knowledge is something less than limited.
Judge Burdick suggested that a solution to this problem might be to certify the case to a competent court from a court with a non-law trained judge, any non guilty plea. Judge Pearce noted that this would be pointless unless the individual defendants were properly counseled as to how to plead.
Judge Erickstad read the committee's proposed Rule 1 dealing with Scope and questioned Judge Pearce as to how he interpreted the rules of application to prosecution of municipal ordinances.
"These rules govern the practice and procedure in all criminal actions and proceedings in the district court, and, so far as applicable, in all other courts, and governed except as otherwise provided by statute, prosecutions for the violations of municipal ordinances."
Judge Pearce responded in saying that he felt the language was quite adequate considering the indefinite nature of the violation of municipal ordinances. He indicated that he would like a little more time to review and analyze the Rule and would communicate his answer by letter to the committee at a future time. He added, by way of comment, that there have been instances in his Court where the view taken by the defense counsel was that the matter at hand was civil in nature rather than criminal and therefore there was no power on the part of the Court to issue a search warrant. However the rebuttal to this argument is that if the matter was civil in nature, then there is no requirement to suppress the evidence, nor is there any need to follow any of the constitutional guarantees.
There was some discussion of the use of Rule 1 and Rule 41. Gerald Glaser, in a question directed to Judge Pearce, wanted to know if Judge Pearce felt that there was a need for him to have the power to issue search warrants and if so, what specifically gave rise to that attitude on his part.
Judge Pearce had no readily available answer, but indicated that the practicality resulted from a quicker disposition of cases and a reduction in the backlog of cases of the District Court.
Judge Muggli questioned the number of search warrants that Judge Pearce had issued within the past year. The response was a qualified three, noting that the first search warrant had been issued in March and that had become so hotly contested that Judge Pearce was reluctant to issue any further. Judge Muggli further questioned the types of cases for which the warrants were issued and whether the criminal violations were of a state law as well as the municipality. The response was in the affirmative.
Judge Burdick pointed out that there are instances in which warrants might be necessary for violations of a municipal ordinance, he cited a case in which the keeping of bees or boa constrictors in one's home would be a violation of a municipal ordinance. It should be noted, however, that this type of action is administrative in nature and warrants are authorized by statute.
At the conclusion of Judge Pearce's presentation, Judge Erickstad requested that he write to the committee and express his views based on the questions that had been raised as well as any other comments which he would care to make. Judge Erickstad indicated that the committee would be particularly interested in his views on proposal Rule 1 and Rule 41 in the way the latter relates to (b) as well as (a). Before Mr. Pearce left, Judge Erickstad invited the committee to pose any questions that they had to Mr. Pearce.
One question was whether as a magistrate Judge Pearce would care to be subjected to our proposed rules as he was aware of them. His response was in the affirmative.
Judge Burdick, in making reference to his proposed revision of Rule 41 (a), specifically the last phrase concerning who may request the search warrant, asked Judge Pearce whether he felt this type of request should be limited to peace officer or prosecuting attorney or should be open to the general public.
The response was that limiting the request to a peace officer or prosecutor would be the more acceptable. In explaining his answer, Judge Pearce indicated that he was aware of many situations where citizens used various complaints in which they were emotionally involved for personal interests based on prejudice and bias and thereby abuse the process.
At this point Municipal Judge Pearce left, Judge Muggli requested to be furnished copies of Rule 41 (c) proposed by Judge Burdick and Judge Smith.
Judge Smith suggested that he read his proposal to the committee and at the conclusion thereof the committee could make any corrections or additions based on a previous discussion. The PROPOSAL as read is as follows:
"Rule 41. Search and Seizure.
(c) Issuance and Contents. A warrant shall issue only on an affidavit or affidavits sworn to before a state or federal magistrate and establishing the grounds for issuing the warrant. If the magistrate is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person or place to be searched. The finding of probable cause shall be based upon substantial evidence, which may be hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is factual basis for the information furnished. Before ruling on a request for a warrant the magistrate may require the affiant to appear personally and may examine under oath the affiant and any witnesses he may produce, provided that such proceeding shall be taken down by a court reporter or recording equipment and made part of the affidavit. The warrant shall be directed to a peace officer of the state authorized to enforce or assist in enforcing any law thereof. It shall command the officer to search, within a specified period of time not to exceed 10 days, the person or place named for the property specified. The warrant shall be served in the daytime, unless the warrant directs that it may be served at any time. The issuing authority may, by appropriate provision in the warrant, and reasonable cause having been shown, authorize its execution at times other than daytime. It shall designate the magistrate to whom it shall be returned."
Following the reading and the approval of Judge Smith's proposal to Rule 41 (c), Judge Erickstad called for the question on the next meeting date and it was unanimously determined that the following meeting of the committee should be the 18th, 19th and 20th of November.
Gerald Glaser, commenting on grammar, questioned the wording in Judge Smith's proposal, that "the warrant shall be directed to a peace officer of the state authorized to enforce or assist in enforcing any law thereof." Judge Burdick agreed that it was awkward and felt that it should be as he had proposed it which is as follows: "the warrant shall be directed to a peace officer authorized to enforce or assist in enforcing any law of this state."
Judge Muggli inquired as to the appropriateness of the words "political subdivision." It was not clear as to what the response was on this question.
Judge Erickstad pointed out that there were two proposals before the committee, one being Judge Burdick's MOTION that subsections (c), (d) and (e) be substituted in lieu of Judge Smith's subsection (c). The question was called on Judge Burdick's MOTION. Judge Burdick's motion was defeated with the record voting as follows: Those in favor: Judge Burdick, Mr. Glaser and Mr. Shaft. Those opposed: Judge Muggli, Judge Smith, Mr. Graham and Mr. Sand. The Burdick motion having failed, the committee considered the Smith proposal.
John Graham indicated his favor with the Smith proposal, except the part that provided for the warrant to issue only on affidavit.
Judge Burdick offered his proposal as a substitute; that is, the wording in his subsection (d) where the word "particularity" was left out. It then read "It shall identify the property and name or describe the person or place to be searched."
Gerald Glaser suggested that the committee resolve the two points upon which it seemed to be hung up. One point is the limitation that the warrant be based on affidavit, and the other is that the warrant use descriptive language.
Judge Erickstad suggested that the committee accomplish the test by motion.
Judge Burdick MOVED that the first paragraph of his proposed revision of Rule 41 (c) be adopted. John Graham suggested that the question be based solely on whether the committee was in favor of the issuance of warrants upon affidavits. Judge Burdick agreed to the revised MOTION by John Graham. The question now before the committee is whether the committee should favor the issuance of warrants without and affidavit and upon original examination. Motion was carried. For the record those in favor were: Judge Muggli, John Graham, John Shaft, Paul Sand, Judge Burdick and Gerald Glaser. Opposed: Judge Smith.
Judge Burdick suggested that he would be satisfied to revise his draft to leave out the words particularity if such phraseology would be more palatable to the committee.
Judge Erickstad noted that there were further problems with Judge Burdick's proposal which go to the numbered divisions and captions.
Judge Burdick indicated that for the sake of preservation of his rule, that he would be willing to remove the captions and headings, leaving only one caption which would be "Issuance and Contents" under subsection (c). However he wanted to have the subsection broken down into logical paragraphs.
Judge Erickstad in fairness to Mr. Glaser, who had suggested the two issues be resolved, called for the question on the issue of the word "particularity" in describing property to be seized. The question was CALLED to delete the word "particularity." The motion carried. Those in favor recorded as: Muggli, Graham, Sand and Glaser. Those opposed were: Smith, Burdick and Shaft. The word "Particularity" therefore has been deleted.
The remaining MOTION before the committee is to adopt the Burdick plan as revised which provides that subsection (c) be entitled "Issuance and Contents" and it have no other subtitles, but there would be paragraphing. This MOTION moved by John Graham and seconded by Judge Burdick.
A question was raised by Judge Muggli regarding the word "seized" as applied to identify the word property, however it was the consensus of the members of the committee that the word "seizure" was a necessary modifier to the word property. The question was then called by Judge Erickstad on the adoption of the Burdick proposal as amended. The motion carried. Those in favor were: Graham, Shaft, Burdick, Glaser and Sand, those opposing were Muggli and Smith.
An issue was raised on the eligibility of the Rules Reviser to vote, and this question is deferred until a later time.
The committee was then ready for the consideration of the Smith draft as amended which would include his (a), (b) and the Burdick (c).
Judge Burdick MOVED to reconsider (a) along with the draft which he circulated. Judge Erickstad entertained the motion to reconsider (a) and to substitute in lieu of the present (a) the draft that Judge Burdick drafted. The motion was seconded by Judge Smith; which seemed to indicate that they were in agreement.
Judge Muggli requested a reading of the draft by Judge Smith and the draft by Judge Burdick. They are as follows:
Judge Smith read, "(a) Authority to Issue Warrant. A search warrant authorized by this rule may be issued by state or federal magistrate within the county wherein the property sought is located or from which it has been removed."
Judge Burdick read, "(a) Authority to Issue Warrant. A search warrant authorized by this rule may be issued by a state or federal magistrate acting within or for the territorial jurisdiction wherein the property sought is located or from which it has been removed, upon request of a peace officer or a prosecuting attorney serving such jurisdiction."
Judge Muggli again suggested in subsection (a) the last phrase should be left to limit the issuance of search warrant to law enforcement officials and prosecuting attorneys. The reason he felt that this was necessary is that he cited many instances in which these public officials were not properly performing their functions in which case such provision for a citizen would be required.
It was pointed out that there was protection to guard against this practice from the District Judge and from the Attorney General's Office.
An issue was raised as to whether the judge can issue a warrant outside of his jurisdiction. The answer was that where provisions made for territorial jurisdiction in issuance of search warrants, a municipal judge can issue a warrant within the city, a district judge in his district, the county judge within his county, and so on.
Judge Erickstad called for the question on the ADOPTION of the Burdick subsection (a) of Rule 41 to be a substitute for the Smith subsection (a). The motion was seconded by Judge Smith.
Judge Muggli requested the consensus of the last clause before voting on a question. The question is called on Judge Muggli's MOTION to include "upon request of a peace officer." Those in favor were recorded as: Shaft and Burdick for the feature but opposed were: Muggli, Graham, Smith, Sand and Glaser. The motion was defeated and the clause is not included.
The question again is called on the Burdick for the Smith subsection (a) of Rule 41. Those in favor of the Burdick subsection (a) as submitted are recorded as: Smith, Shaft and Burdick. Opposed: Muggli, Graham, Sand and Glaser. The Burdick MOTION therefore failed.
Judge Burdick then requested to have his motion resubmitted with the last clause omitted. That is the proposal except for the deletion of the phrase "Upon request, etc.", placing a period after the word removed. MOTION was seconded by Judge Muggli. Those in favor are: Muggli, Smith, Graham, Shaft, Sand, Burdick and Glaser. There was no opposition and Rule 41 (a) is adopted as the Burdick subsection (a) as amended.
Judge Smith MOVES to adopt Rules 41 (a), (b) and (c) as they presently stand on the record. The motion to adopt is seconded by Sand and Graham. The voting is unanimous in favor of the motion. The motion is carried.
Judge Burdick MOVED to adjourn the meeting. The motion was seconded by Judge Smith and there was a unanimous vote in favor of adjourning. The committee was reminded that the next meeting will be November 18, 19 and 20.
These minutes are respectfully submitted.
Charles M. Travis