Joint Procedure Committee - September 25-26, 1997 Minutes

Joint Procedure Committee

MINUTES OF MEETING
Joint Procedure Committee
September 25-26, 1997

TABLE OF CONTENTS

Rule 4, N.D.R.Civ.P. - Persons Subject to Jurisdiction--Process--Service... 2
Proposed Rule 6.8, NDROC - Questioning by Jury... 2
Rule 32, N.D.R.Crim.P. - Sentence and Judgment... 3
Rule 42, N.D.R.App.P. - Dismissal; Mootness... 6
Rule 77, N.D.R.Civ.P. - District Courts and Clerks... 7
Deferred Imposition of Sentence... 8
Rule 43, N.D.R.Civ.P. - Evidence... 10
Courtroom Oaths... 11
Clerk of Court Office Consolidation... 12
Request by Ron Stuart to Address the Committee Regarding Courtroom Oaths... 12
Rule 25, N.D.R.App.P. - Filing and Service... 13
Rule 26, N.D.R.App.P. - Computation and Extension of Time... 13
Section 27-10-01.3, N.D.C.C. - Contempt... 14
Proposed Rule 6.9, NDROC - Assisting Jurors at Impasse... 15
Mini-Opening Statement and Preliminary Instructions... 16

CALL TO ORDER

The meeting was called to order at approximately 1:30 p.m., September 25, 1997, by Justice Dale V. Sandstrom, Chair.

ATTENDANCE

Present:
Justice Dale V. Sandstrom
Honorable Gail Hagerty
Honorable Ronald L. Hilden
Honorable Maurice R. Hunke
Honorable Lawrence A. Leclerc
Honorable Mikal Simonson
Honorable James A. Wright (9/25/97 only)
Mr. Lynn Boughey
Mr. Michael Hoffman (9/25/97 only)
Mr. John Kapsner
Professor Larry Kraft
Mr. Daniel S. Kuntz
Ms. Patricia Monson
Ms. Sherry Mills Moore
Mr. James T. Odegard (9/25/97 only)
Ms. Cathy Howe Schmitz

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Absent:
Honorable Wallace D. Berning
Honorable Donovan Foughty
Honorable Kirk Smith
Mr. Ronald H. McLean

Staff:
Mr. Gerhard Raedeke

PRELIMINARY MATTERS

The Committee was informed meetings are scheduled for January 29-30, 1998, and April 30-May 1, 1998.

The Committee's newest members, Judge Simonson and Dan Kuntz, were introduced and welcomed. Judge Bohlman and Mr. Heinley are no longer on the Committee.

APPROVAL OF MINUTES (PAGES 1-15 OF THE AGENDA MATERIAL)

Judge Hunke MOVED to approve the minutes from the January 30, 1997, meeting as submitted. Mr. Odegard seconded. Motion CARRIED.

RULE 4, N.D.R.Civ.P. - PERSONS SUBJECT TO JURISDICTION--PROCESS--SERVICE (PAGES 16-19 OF THE AGENDA MATERIAL)

At the last meeting, the Committee approved a request from the North Dakota Sheriff's Association to allow service by giving a copy of the summons to an individual's spouse. As amended by the Committee, the proposal does not read correctly. It appears to require the spouse to reside at the office of the process server. On page 19, Mr. Odegard MOVED to amend Rule 4 as follows: "delivering ~~a copy of the summons~~, at the office of the process server, a copy of the summons to the individual's spouse if ~~they~~the spouses reside together." Judge Leclerc seconded. Motion CARRIED.

Staff is to inform the Supreme Court of the Committee's recommended change, as the Committee's proposed amendments to Rule 4 have already been submitted to the Court for adoption. The rule is set for hearing on October 30, 1997.

PROPOSED RULE 6.8, NDROC - QUESTIONING BY JURY (PAGES 20-22 OF THE AGENDA MATERIAL)

At the last meeting, the Committee approved a rule allowing jury questions. However, when adopting the rule, the

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Committee did not have a copy of what it was adopting. Instead, the Committee was looking at proposed Minn.Civ.Trial Book 10.

On page 22, the Committee reviewed the rule it had previously adopted. Ms. Schmitz MOVED to approve the title and explanatory note added by staff after the last meeting. Judge Hunke seconded. Motion CARRIED.

On line 11-12, the Committee did not think it was necessary for the rule to state the court "shall tell the jury that the law prevented the question from being asked." The instructions at the beginning of the case should explain the framework through which juror questions will be asked.

Committee members expressed concern about the rule being misconstrued as being mandatory. Some said the word "shall" on line 8 could be misconstrued as requiring the court to ask juror questions.

The Committee considered an alternative draft of Rule 6.8 prepared by Judge Vukelic which was distributed at the meeting. The Committee thought Judge Vukelic's draft makes it clear the court has discretion whether to ask a juror question.

In Judge Vukelic's draft, Committee members questioned

whether the phrase "subject to the North Dakota Rules of Evidence" is necessary. Others thought the phrase is helpful by qualifying the previous use of the word "shall" in the sentence.

Mr. Kapsner MOVED to recommend the Supreme Court adopt Judge Vukelic's alternative draft of Rule 6.8, instead of the proposal approved by the Committee at the last meeting. Ms. Monson seconded. The motion CARRIED. Staff is to inform the Supreme Court of the Committee' decision, as Rule 6.8 has already been submitted to the Supreme Court for adoption, and is set for hearing on October 30, 1997.

RULE 32, N.D.R.Crim.P. - SENTENCE AND JUDGMENT (PAGES 45-69 OF THE AGENDA MATERIAL)

The Committee considered an amendment to Rule 32 N.D.R.Crim.P., from the Division of Parole and Probation, North Department of Corrections and Rehabilitation. The issue to be resolved concerned whether presentence investigation reports and attachments should be open for inspection as to the public or the parties.

Under the proposal from the Department of Corrections and Rehabilitation, the public would be allowed to inspect the presentence report itself, but not any attachments contained in an addendum. The court, however, would have the option of allowing

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the parties to inspect any addendum. The proposal considered by the Committee at the last meeting did not give the court the option of allowing just the parties to inspect the addendum. The addendum would have been confidential as to both the parties and the public.

On page 57, proposed subdivision (c)(2), gives defense counsel an opportunity to attend any presentence investigation interview of the defendant. Mr. Boughey MOVED to amend subdivision (c)(2) as follows:

"~~On request, the~~ The defendant's counsel is entitled to notice and a reasonable opportunity to attend any interview of the defendant by parole and probation staff in the course of a presentence investigation. ~~The request must be made to the court at the time the court orders the presentence investigation.~~"

Judge Wright seconded. Motion CARRIED.

Committee members questioned whether the defendant should be able to waive the right to have counsel present. Others stated the defendant can waive rights at any time. It is not necessary to put language about a waiver in the rule.

On page 58, the Committee considered the language defining the types of information to be submitted to the court as an addendum to the presentence report. Committee members expressed concern about the parole and probation officer determining what goes into the report and determining what material should be confidential.

Committee members questioned whether the promise of confidentiality should be expressly qualified in the rule. The Committee noted, the proposed explanatory note provides parole and probation staff cannot make a promise of complete confidentiality, because the promise of confidentiality is subject to the court's discretion to allow the parties to inspect the addendum.

Committee members also expressed concern about a sentence recommendation being included in the presentence report and being open to the public for inspection. They argued sentence recommendations should not be in the presentence investigation report. They suggested the rule should require any recommendation of a presentence investigator to be included in the confidential addendum.

Committee discussion revealed practice varies. In some districts, it is rare to get a sentence recommendation. In other districts, most of the reports will contain a sentence recommendation. Committee members stated the defendant's counsel

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should get the recommendation. Committee members stated in the federal system it varies whether the recommendation is confidential.

Members argued the presentence investigation report should be confidential. The reports contain information not under oath. At a trial, the public is not exposed to hearsay. Committee members also expressed concern about the social history of the defendant's family being in the presentence report. They thought the defendant's family should be not scrutinized by the public. The family did not commit the crime. Furthermore, what is in the report regarding the family may not even be true, because the report is not subject to verification.

Others stated it is important for the public to understand the reasons for a judge's sentence. When a judge imposes a sentence, the judge is supposed to list the reasons for the sentence. Also, the parties are given a chance to respond to information contained in the presentence investigation report. The information is not secret, because it can be disputed at the sentencing hearing which is open to the public. Normally, there is only a minimal response to the presentence investigation report by the defendant, and there are not many errors in the reports.

It was explained, most of the language defining the information to be included in the addendum is from the federal rule. Under the federal system the defendant gets a copy of the presentence investigation report, but sensitive and potentially harmful information is excluded from the presentence investigation report. If the court receives information excluded from the presentence report, the court - in lieu of making the information available - must summarize it in writing, if the information will be relied upon in determining sentence.

The Committee decided to try and reach consensus as to which way it would like the rule to be amended. Justice Sandstrom outlined four alternatives for the Committee's consideration. 1) Everything in the presentence report and any attachments are confidential. No one, including the judge, can disclose information. 2) Everything in the presentence report and any attachments are confidential. The judge has discretion to disclose information. 3) The presentence report is open for inspection by the public and the parties. Any addendum is confidential as to the public, but subject to disclosure to the parties in the discretion of the court. 4) Everything in the presentence report and any addendum is open for inspection. No Committee members were in favor of closing or opening everything to inspection. Twelve Committee members indicated they were in favor of closing everything to inspection except what the judge orders disclosed.

Justice Sandstrom questioned whether the proposal for the next meeting should provide for an addendum to the presentence

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report. Committee members indicated putting sensitive and potentially harmful information in an addendum would he helpful. However, the judge should have the authority to decide what should be disclosed regardless of whether it is in the presentence investigation report or the addendum. But, typically the material inclosed in the addendum should not be disclosed.

On page 61, line 5, the Committee questioned whether the phrase should be "State Parole Board 'and' to the pardon clerk" rather than "State Parole Board 'or' to the pardon clerk." The Committee said based on the context, the report would be going to either the Parole Board or the pardon clerk.

The Committee decided to postpone discussion of Rule 32 until the next meeting. Staff is to prepare a new proposal based on the comments of the Committee. Committee members suggested using the overstruck language from the current rule on page 60. The Chair instructed staff to send the proposal to the Committee's members for comment before the next meeting. The Chair instructed Committee members to submit alternative proposals or language if the proposed draft does not meet their satisfaction.

RULE 42, N.D.R.App.P. - DISMISSAL; MOOTNESS (PAGES 70-74 OF THE AGENDA MATERIAL)

The Committee considered a request from the Supreme Court for an amendment requiring a party to notify the court before oral argument when an issue appealed becomes moot.

Some Committee members stated Rule 3.3, N.D.R.Prof.Cond., already requires candor towards the tribunal by the attorneys. An amendment is not needed. Others said an amendment would explain the procedure for notifying the court when an issue appealed becomes moot.

Mr. Kapsner MOVED to adopt Alternative 2 on page 72. Ms. Moore seconded. Committee members expressed concern mootness is a legal conclusion for the court. Alternative 2, makes an attorney conclude the issue is moot, when the court may not consider the issue moot. Committee members did not like the idea of making an attorney guess what the court might consider moot.

The Committee decided to substitute Alternative 6 for Alternative 2. The Committee liked the idea of advising the court of a change in circumstance and having the court determine whether the issue is moot. However, some members disliked Alternative 6 because it does not provide for an explanation as to why appeal of the issue should or should not be dismissed. Committee members also thought the other side should have an opportunity to respond.

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Mr. Kuntz suggested Alternative 4 should be substituted for Alternative 6, and Alternative 4 should be amended to provide as follows:

"When a party believes an appealed issue has become moot due to a change in circumstance, the party shall advise the court in writing about the change in circumstance and explain why appeal of the issue should or should not be dismissed."

Committee members said the substitute language begs the question. The parties will say they did not notify the court because they did not think the issue had become moot.

A Motion to substitute the language suggested by Mr. Kuntz CARRIED. The main Motion CARRIED by more than a two-thirds vote.

RULE 77, N.D.R.Civ.P. - DISTRICT COURTS AND CLERKS (PAGES 75-88 0F THE AGENDA MATERIAL)

The Committee considered Justice Maring's concurrence in the case of Austin v. Towne, 1997 ND 59. In Austin, Justice Maring urged Rule 77(d) "be revisited for changes that would recognize service by affidavit of mailing as 'notice' of entry of judgment or final order." 1997 ND 59, 18.

The Committee reviewed Thorson v. Thorson, 541 N.W.2d 692 (N.D. 1996). Thorson indicates notice of entry of judgment is not required if actual knowledge of entry of the order or judgment is clearly evidenced in the record. 541 N.W.2d at 694. However, an affidavit of mailing an order or judgment is not sufficient to establish actual knowledge or notice of entry of judgment. Id. at 695.

Committee members questioned why the time frames need to run from notice of entry of judgment. Under the federal system, the time for appeal runs from entry of judgment. Others stated, we cannot count on the clerk of courts to serve notice of entry of judgment. The reason for notice of entry of judgment is to avoid confusion and to have a clear definitive starting time for appeal and post-judgment motions.

Committee members questioned whether the type of proof of service was the problem in Austin and Thorson. The Committee questioned whether Rule 4 service, rather than Rule 5 service, would have constituted actual knowledge and avoided the need to serve notice of entry of judgment. Others thought the type of service was not the issue. The problem was there was no notice of entry of judgment. In addition, in defining actual knowledge for the purpose of commencing the time for appeal, the Supreme Court

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has said there must be action evident on the part of the moving or appealing party that they had actual knowledge. Thorson v. Thorson, 541 N.W.2d 692, 695 (N.D. 1996). Thus, the type of service was probably not the determinative factor.

On page 87, Committee members questioned whether the proposed amendment would do away with notice of entry of judgment. The order or judgment would simply be served. Committee members thought eliminating notice of entry of judgment would cause confusion. Concern was expressed about fooling around with the clear time reference currently in existence for starting the time for appeal and post-judgment motions. The proposal would leave hanging a very important time period for lawyers. It would become unclear who starts the time period for an appeal or a post-judgment motion. In addition, the judgment may not show on its face whether it has been entered. Currently, it is clear that notice of entry of judgment must be served by the prevailing party, and the time periods start to run from service of notice of entry of judgment.

The question was called on the main Motion. The Motion FAILED. The Committee thought the law is clear. There is no problem to fix.

DEFERRED IMPOSITION OF SENTENCE (PAGES 89-128 OF THE AGENDA MATERIAL)

The Committee considered a request for a uniform statewide procedure for processing deferred impositions of sentence in misdemeanor cases. The Committee discussed various ways in which deferred impositions are handled in misdemeanor cases.

Committee members said a uniform procedure would prevent the disparity of treatment received by defendants depending upon the county of venue. A uniform procedure would make it easier for attorneys to advise clients how to remove a deferred imposition of sentence from their record.

Other Committee members questioned the need for uniformity, additional rules, and additional structure. Committee members questioned why the clerk should be given more work through adoption of a uniform procedure if the long term goal is to reduce the number of clerks. In any event, even with uniform procedures, uniformity would not be guaranteed. The judge has discretion whether to allow the defendant to withdraw the guilty plea or to set aside the verdict under Section 12.1-32-07.1, N.D.C.C.

The Committee recessed at approximately 4:30 p.m.

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September 26, 1997 - Friday

The Committee reconvened at approximately 8:30 a.m.

The Committee questioned whether a deferred imposition of sentence is a judgment. The Committee questioned when a case ends if a deferred imposition is not a judgment. There is no deadline as to when a defendant may move to dismiss a deferred imposition. Judges stated a problem is created for clerks if deferred impositions are shown as being open. The clerks do not want to manage deferred impositions on an ongoing basis.

Some Committee members stated, by the nature of a deferred imposition of sentence, the burden is upon the defendant to move for dismissal. The judicial system should not be responsible for taking care of defendants.

Committee members suggested using a sunset clause. If the State does not move to revoke the defendant's probation, there should be an automatic dismissal. The defendant should be presumed to have complied with the conditions of probation.

Others stated, even if the State has not moved to revoke, it is not clear the defendant has complied with the terms of his or her probation. Fines and restitution are usually monitored. What is not monitored is subsequent criminal behavior. If a rule is adopted providing for automatic dismissal, the State ends up with the burden of determining whether there has been compliance.

If the defendant has not even asked for dismissal, the State should not be responsible for determining whether the defendant has complied with the conditions of his her probation. When a defendant makes an application for dismissal, the defendant is representing compliance with the conditions of his or her probation. Currently only about five percent of defendants move for dismissal.

The Committee instructed staff to prepare two alternative proposals for the Committee's consideration at the next meeting. Under the first alternative, dismissal would be automatic a couple of months after the deferral unless the State moves for revocation of probation.

Under the second proposal, the burden would be upon the defendant to move for dismissal. A couple of months after the deferred imposition of sentence, a judgment of conviction would be entered if the defendant has not moved for dismissal. The defendant would be given forms at the time imposition of sentence is deferred, and forms would also be available at the clerk of court's office.

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The Committee instructed staff to consider whether it would be more appropriate to include the new rule in the Rules of Criminal Procedure or in the North Dakota Rules of Court. The Committee did not want the rule to contain a required advisement about the right to move for dismissal. The Committee was concerned about litigation concerning whether the court had substantially complied with the required advisement. Staff is also to prepare forms for the Committee's consideration at the next meeting.

RULE 43, N.D.R.Civ.P. - EVIDENCE (PAGES 129-135 OF THE AGENDA MATERIAL)

The Committee considered the December 1, 1996, amendment to Rule 43, Fed.R.Civ.P. The amendment allows testimony at trial from a witness who is unable to communicate orally by allowing testimony to be taken by other means. The amendment also permits testimony by contemporaneous transmission from a different location for good cause shown in compelling circumstances.

Mr. Kuntz MOVED to adopt the proposal on page 132, which follows the federal rule. Judge Simonson seconded.

Committee members stated a rule allowing testimony by other means would be helpful. Others questioned whether the proposal conflicts with North Dakota case law by allowing contemporaneous transmission of testimony from a different location. The Committee referred to a case prohibiting a doctor from testifying by telephone from the state hospital without the consent of the defendant in a civil commitment proceeding. The Committee noted, the rule requires compelling circumstances to justifying contemporaneous transmission from a different location. The convenience of a witness is not a compelling circumstance.

Committee members stated it is not clear under the rule who would be responsible for any extra costs and whether the costs are taxable.

Committee members expressed concern about the rule not specifically addressing whether or when notice must be given to the other side. Others stated the requirement for good cause and compelling circumstances cannot be established if reasonable notice is not given. The Committee Note clarifies notice of a desire to transmit testimony from a different location should be given as soon as the reasons are known.

Judge Leclerc MOVED to adopt paragraphs 3, 4, 5, 6, 7, and 8 from the Committee Note to Rule 43, Fed.R.Civ.P., and to incorporate them into the Explanatory Note to Rule 43, N.D.R.Civ.P. Judge Simonson seconded. Other Committee members suggested only a reference to the federal rule is needed in the explanatory note to North Dakota's rule. When our rule tracks the federal rule, we use

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the federal Committee notes for a research base. Still others stated, an explanatory note should not be needed to interpret the rule. They thought the rule should be redrafted if two pages of explanation are needed in the note. The Motion FAILED.

Judge Hagerty offered a substitute Motion. She MOVED to refer the proposal back to staff to redraft the language. Staff is to incorporate a requirement into the rule for notice as soon as reasonably possible when testimony is sought by alternative means. Staff is also to investigate existing North Dakota case law to ensure the proposal does not conflict with case law. Finally, staff is to incorporate language into the rule that testimony can only be presented by contemporaneous transmission if unexpected circumstances exist. Ms. Schmitz seconded. Motion CARRIED.

COURTROOM OATHS (PAGES 23-44 OF THE AGENDA MATERIAL)

The Committee considered a request from Judge Hagerty to rewrite the courtroom oaths to make them more understandable by using plain English. Judge Hagerty expressed concern people may not understand what they are saying when they take an oath because of the archaic language contained in the oaths. Her draft proposals leave out the language "So help you God." However, she said that is not her issue, and it would be fine if those words are left in the oaths. She said her concern is the language of the oaths be understandable and in plain English.

The Committee questioned whether the oaths are in the scope of the Committee's work. The Committee noted Section 8.1(a), NDRPR, which provides: "The Joint Procedure Committee shall study and review all rules of pleading, practice, and procedure, including . . . (ii) Specialized Court Proceeding Procedures . . . ." The Committee noted Rule 43, N.D.R.Civ.P., provides for an affirmation in lieu of the oath. The Committee also noted Article VI, Section 3, of the North Dakota Constitution, gives the court the authority to supersede procedural statutes.

The Committee discussed the origin and source of the oaths. Some of the language in the oaths dates back to the Revised Code of 1895. Some of the oaths are statutory. Others oaths come from the North Dakota Court Bench Book. If the oath is not statutory, judges have discretion as to the language used in the oath. Others said it may not be in the judge's domain to choose the language of the oath, because the clerk of court is generally the one who gives the oath.

Committee members stated, a rule is not needed to prescribe the language of the oath. It should be left to the discretion of the court. Others said, the only way statutory oaths can be superseded is if a specific rule is adopted which supersedes the statute.

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Committee members questioned whether prescribing the oaths by rule would create a problem if the court reporter used a different oath for a deposition.

The Committee indicated it was in favor of working on improving the language used in courtroom oaths. Staff was instructed to put the proposals in rule form and to come up with alternative drafts. Staff was instructed to look at oaths used in other states.

CLERK OF COURT OFFICE CONSOLIDATION (PAGES 233-234 OF THE AGENDA MATERIAL)

In conference committee amendments to the judiciary's budget legislation, Senate Bill 2002, the Legislature indicated its intent for counties to combine or share the services of clerks of district court. The Committee was informed the Chief Justice has asked the Committee to review the rules of procedure and to be prepared to make the necessary changes to accommodate consolidation of the offices of clerk of court.

A Committee member suggested Administrative Rule 6, "Judicial Districts," and Administrative Rule 7, "Designation of Judgeships and Chambers with Assignments," will need to be amended. The court should have an administrative rule defining where the districts are located and where the clerk of court offices are located. Others questioned whether this is a subject for the Court Services Administration Committee.

The Committee questioned what amendments would be needed. Generally the rules of procedure refer to a clerk of court in a generic sense, rather than to a specific clerk of court. The Committee was asked to let staff know which rules will need amending. Staff was instructed to monitor the Legislative Council Judicial Interim Committee.

REQUEST BY RON STUART TO ADDRESS THE COMMITTEE REGARDING COURTROOM OATHS (PAGES 23-44 OF THE AGENDA MATERIAL)

Mr. Ron Stuart, a non-member of the Committee, requested permission to address the Committee regarding courtroom oaths. The Committee discussed whether a non-member who has not been invited to address the Committee should to allowed floor time. Committee members stated the public can submit things in writing for the Committee's consideration. To allow a non-member of the Committee to speak without being invited sets a bad precedent. The Committee was concerned about its limited time being consumed by non-members addressing the Committee. The consensus of the Committee was that it is helpful to get written remarks from the public. It is good

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to get other points of view, but the Committee does not have time to hear everyone who may want to speak.

RULE 25, N.D.R.App.P. - FILING AND SERVICE (PAGES 136-143 OF THE AGENDA MATERIAL)

The Committee considered a proposal to amend Rule 25, N.D.R.App.P., to follow the December 1, 1996, amendment to Rule 25, Fed.R.App.P. The proposed amendment would allow filing and service by commercial carrier, if the carrier undertakes to deliver the document in no more than three calendar days.

Mr. Kapsner MOVED to adopt the proposed amendment to Rule 25 and the explanatory note. Judge Leclerc seconded. Committee members stated federal express is as reliable as mail. Motion CARRIED.

Judge Hunke suggested the Committee consider an amendment to expand who can make proof of service via a certificate of service. Currently, only attorneys can use a certificate of service. It was suggested others in a law office such as secretaries or legal assistants should also be able to use a certificate of service instead of an affidavit of mailing.

RULE 26, N.D.R.App.P. - COMPUTATION AND EXTENSION OF TIME (PAGES 144-146 OF THE AGENDA MATERIAL)

The Committee reviewed the December 1, 1996, amendment to Rule 26, Fed.R.App.P. The amendment makes the three day extension for service by mail applicable when service is by commercial carrier. Ms. Schmitz MOVED to adopt the proposal on page 145, which follows the federal rule. Judge Simonson seconded. Motion CARRIED.

Committee members expressed concern about the word "calendar" on line 27. Staff explained the word calendar is added to make it clear the three day extension for service by mail is not covered by the provision in Rule 26(a), providing weekends and holidays do not count when a period is less than seven days. An extra three days is not added for intermediate Saturdays, Sundays, and legal holidays occurring during the extra three day period provided for service by mail. The Committee reviewed the Committee Note to Rule 26, Fed.R.App.P.

Mr. Kuntz MOVED to deleted the word "calendar." Judge Simonson seconded. The Motion CARRIED.

Ms. Monson MOVED to amend subdivision (c) as follows: "When a party is required or permitted to act within a prescribed period after service of a paper upon that party, 3 days are added

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to the prescribed period. ~~unless the paper is delivered on the date of service stated in the proof of service.~~" Mr. Kapsner seconded. Motion CARRIED.

Mr. Boughey MOVED to amend subdivision (c) as follows: "When a party is required or permitted to act within a prescribed period after service of a paper upon that party, by mail or third-party commercial carrier, 3 days are added to the prescribed period."

Committee members commented Rule 26 is only a rule of appellate procedure. Other rules also address service by mail. It was suggested a rule of court should define service by mail as including commercial carrier, so every rule does not have to be amended. Others stated, a practitioner should be able to understand a rule without having to refer to another rule. The Committee stated its intent to allow service by commercial carrier whenever the rules refer to service by mail. Committee members noted statutes may also refer to service by mail.

Mr. Kapsner MOVED to refer Rules 25 and 26, N.D.R.App.P., back to staff. Mr. Kuntz seconded. Motion CARRIED. Staff was instructed to search all the rules of procedure for references to service by mail, and to prepare rule amendments allowing service by commercial carrier in addition to mail.

SECTION 27-10-01.3, N.D.C.C. - CONTEMPT (PAGES 147-153 OF THE AGENDA MATERIAL)

The Committee considered a request from Judge Bohlman to amend North Dakota's statutes on contempt. Previously, in October of 1992, the Committee revised North Dakota's statutes on contempt.

Committee members questioned whether the amendment is needed. Under North Dakota case law, in a civil contempt proceeding, the alleged condemnor already has the burden of proving inability to comply with the order allegedly being violated. Others stated, the proposal clarifies if an alleged condemnor claims the privilege against self-incrimination, the burden is still on him or her to establish inability to comply with the order for support by other evidence.

Judge Hagerty MOVED to submit the proposed change to the Supreme Court for legislation. Ms. Schmitz seconded. Motion CARRIED.

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PROPOSED RULE 6.9, NDROC - ASSISTING JURORS AT IMPASSE (PAGES 154-167 OF THE AGENDA MATERIAL)

The Committee reviewed Arizona's rule for assisting jurors at impasse. The purpose of Arizona's rule is to reduce the number of mistrials by allowing the jury to articulate its needs when at impasse.

Committee members stated they did not want the jury instruction to be included as part of the rule as in Alternative 2, on page 166. The instruction should be in the explanatory note. Judges need the opportunity to be flexible in delicate circumstances. Other Committee members said they liked the portion of Alternative 2 making it clear the court must confer with counsel.

For the purpose of discussion, Judge Hunke MOVED adoption of the first alternative on page 164. Ms. Schmitz seconded. The proposal tracks Arizona's rule.

Committee members cited cases in which juries hung simply because they did not understand the instructions. For instance, one jury hung in a criminal case because the jurors could not agree on how much money to award. The proposed rule would create the opportunity to discover the problem.

Some Committee members stated a rule is not needed and it has the potential to create problems. Hung juries seldom happen. A rule should not be created which invites a judge to assert himself or herself into the jury deliberation process. Mr. Kapsner MOVED to indefinitely postpone discussion on proposed Rule 6.9. Judge Leclerc seconded. Motion FAILED.

On page 164, lines 7-8, Mr. Boughey MOVED the following amendment: "After receiving the jurors' response and conferring with counsel, ~~if any,~~ the judge may direct further proceedings occur as appropriate." Ms. Schmitz seconded. The Motion to amend CARRIED.

Ms. Monson MOVED to amend the pending Motion by adding an additional sentence starting on line 8 as follows: "Any communication to and from the jury must be in writing." Ms. Moore seconded.

Mr. Kuntz offered an amendment to the amendment as follows: "Any communication from the jury must be in writing." Committee members stated, the real concern is that jurors not blurt out in court the substance of their discussions. The Motion on the amendment to the amendment CARRIED.

Judge Simonson offered a substitute Motion as follows: "After receiving the jurors' written response and conferring with

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counsel, the judge may direct further proceedings occur as appropriate." The Motion failed for lack of a second.

Some Committee members stated they liked the second alternative better; because it accomplishes what the Committee was trying to do with its amendments to the first alternative. Mr. Kapsner MOVED to substitute the alternative draft on page 166 with the exception of lines 10-27 and the addition of the explanatory note contained on page 164 and 165. Judge Leclerc seconded. The Motion CARRIED.

The Committee agreed the first sentence of the proposal should read as follows:

"If the jury informs the court it has reached an impasse, the court, after conferring with counsel, may invite the jurors ~~in writing~~ to list in writing the divisive issues, which if addressed further in the courtroom might bring about a verdict."

Judge Simonson MOVED to amend the last sentence of proposed Rule 6.9 on page 166 as follows:

"After receiving the jurors' written response, ~~if any,~~ the judge, after conferring with counsel, may direct further proceedings to occur as appropriate."

Mr. Kapsner seconded. Motion CARRIED.

Committee members commented the proposed rule will be beneficial. A judge's ability to respond is too limited if the judge can only tell the jury to re-read the instructions and continue deliberating. The proposed rule provides a great opportunity for judges and attorneys to become more involved in the process and to empower the jury.

The Committee voted whether to adopt the proposal as amended. The proposal carried by more than a two-thirds vote.

MINI-OPENING STATEMENT AND PRELIMINARY INSTRUCTIONS (PAGES 168-190 OF THE AGENDA MATERIAL)

The Committee reviewed Arizona's rules of procedure allowing mini-opening statements before voir dire and preliminary substantive jury instructions immediately after the jury is sworn. The mini-opening statement is intended to be a nonargumentative informative statement making voir dire more meaningful to the jurors. Preliminary jury instructions are intended to inform the jurors about the elementary legal principles governing the

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proceeding. The purpose of preliminary jury instructions is to assist the jurors in organizing and processing evidence, to help the jurors focus on the relevant issues, and to accommodate the jurors' natural tendency to process evidence.

Judge Hagerty MOVED to indefinitely postpone consideration of rule amendments allowing brief opening statements before voir dire. Ms. Kapsner seconded. Motion CARRIED. The Committee thought any preliminary information needed prior to voir dire could be provided by the judge. Members were concerned the preliminary opening statement would be abused and become argumentive.

Judge Simonson MOVED to adopt proposed Rule 51, N.D.R.Civ.P., on page 184 to allow preliminary jury instructions. Judge Hagerty seconded.

Judge Simonson MOVED to amend the pending Motion by replacing the word "shall" with the word "may" on line 5. Judge Hunke seconded. The Motion CARRIED. The Committee thought the decision whether to give preliminary jury instructions should be in the discretion of the court.

Judge Leclerc MOVED to strike the word "again" on line 10, because the court may opt not to give the preliminary instructions. Judge Hunke seconded. Motion CARRIED.

Judge Hagerty MOVED to amend lines 10-12 as follows: "The court shall instruct the jury ~~again~~ immediately before or after the arguments of counsel. ~~to the jury are concluded.~~ Mr. Kuntz seconded. Motion CARRIED. Some Committee members disagreed. They thought the last word the jury hears should be the law.

The Committee noted Section 28-14-10, N.D.C.C., provides: "The court may charge the jury when the evidence is concluded or after the argument. . . . ."

The Committee voted on the Motion to adopt Rule 47 as amended. The Motion CARRIED by a two-thirds vote. Judge Hunke MOVED to adopt proposed Rule 30, N.D.R.Crim.P., as proposed, but with the amendments made to Rule 51, N.D.R.Civ.P. Judge Hagerty seconded. The Motion CARRIED by a two-thirds vote.

The meeting adjourned at approximately 12:00 noon.

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Gerhard Raedeke