MINUTES OF MEETING
Joint Procedure Committee
September 18-19, 2003
TABLE OF CONTENTS
Rule 41, N.D. Sup. Ct. Admin. R. - Access to Judicial Records; Rule 3.1, N.D.R.Ct.,
Pleadings; Appendix G, N.D.R.Ct 2
Rule X, N.D. Sup. Ct. Admin. R. - Civil Case Management; Rule 16, N.D.R.Civ.P. - Pretrial Conferences; Scheduling; Management; and Rule 40, N.D.R.Civ.P. - Assignment of Cases for Trial 11
Rule 8.10, N.D.R.Ct. - Extraordinary Writs 18
Rule 13, N.D. Sup. Ct. Admin. R. - Judicial Referees 22
Rule 52, N.D.R.Civ.P. - Findings by the Court 25
Rule 20, N.D. Sup. Ct. Admin. R. - Magistrates--Qualifications, Authority, Education and Procedures 26
Rule 44, N.D.R.Crim.P. - Right to and Appointment of Counsel 27
CALL TO ORDER
The meeting was called to order at 1:00 p.m., on Sept. 18, 2003, by Justice Dale V. Sandstrom, Chair.
Justice Dale V. Sandstrom
Honorable Donovan Foughty
Honorable M. Richard Geiger
Honorable Gail Hagerty
Honorable Lawrence A. Leclerc (Sept. 18 only)
Honorable David W. Nelson
Honorable Thomas J. Schneider
Honorable Mikal Simonson
Professor Linda Bata
Mr. Michael R. Hoffman
Mr. John C. Kapsner
Mr. Daniel S. Kuntz
Mr. Galen J. Mack
Mr. Ronald H. McLean (Sept. 18 only)
Ms. Sherry Mills Moore
Ms. Cathy Howe Schmitz
Mr. Michael G. Sturdevant
Honorable Bruce E. Bohlman
Mr. Steven W. Plambeck
The Chair set out the schedule for the meeting and confirmed that the Committee's next meeting will be in Bismarck on January 29-30, 2004.
APPROVAL OF MINUTES
Judge Foughty MOVED to approve the minutes. Ms. Schmitz seconded. The motion CARRIED unanimously.
PETITION FOR AMENDMENT OF COURT RULES (PAGES 1-3 OF THE AGENDA MATERIAL)
The Chair explained the status of the Committee's annual Petition for Amendment of Court Rules and invited Committee members to advise staff whether any issues needed to be raised with the Supreme Court at the petition hearing September 29, 2003.
RULE 41, N.D. Sup. Ct. Admin. R. - ACCESS TO JUDICIAL RECORDS; RULE 3.1, N.D.R.Ct., PLEADINGS; APPENDIX G, N.D.R.Ct. (PAGES 4-24 OF THE AGENDA MATERIAL)
Staff reviewed actions taken by the Committee on court system privacy measures at the April 2003 meeting and explained proposed amendments to the Administrative Rules and Rules of Court that would implement additional privacy measures.
Ms. Schmitz MOVED to approve the proposed amendments. Judge Leclerc seconded.
A member asked whether it was necessary to amend both Rule 41 and Rule 3.1. Staff explained that the Committee consensus at the conclusion of the April meeting was that privacy protections needed to be extended both to records already contained in the court systems and new records being filed with the court system.
A member asked where the items included within the rule amendment definitions of "personal information" came from. Staff explained that the items originally came from a statute defining information that could be released on state prisoners and that the item list had been modified by the Committee at the April meeting to include additional items such as birth dates.
A member asked whether someone using a name and date of birth could obtain information from state agencies such as the Department of Transportation. A member explained that a release form from the individual was also necessary.
A member asked what an attorney filing a typical motion for increase of child support would have to file under the proposed amendments. The member said that the quantity of steps that would have to be taken and the number of items that would have to be excised from filed material was significant. The member said that the proposed amendments would impose a cumbersome burden on attorneys.
A member suggested that there were ways around some of the information requirements--giving a child's age or year of birth, for example, instead of giving the child's precise birth date. The Chair said that when parties give precise birth dates in documents filed with the Supreme Court, the day and month are removed before the documents are posted on the Court's website.
A member said that often when news of a criminal case is reported in the media and the suspect has a common name, reporting the date of birth can help people differentiate the suspect from others with the same name. The member said that people do not generally hide their date of birth from the world, and that date of birth should be deleted from the types of "personal information" protected under the proposed amendments.
A member asked whether the Health Department's birth records were public records. Several members responded that, while the birth records were public records, the department would not release them unless given the date of birth of the person. A member observed that the Supreme Court website listed birth dates of judges.
A member said that it would be appropriate to seal medical records, but the member wondered how quoting the records in briefs would be handled under the proposed--would briefs have to be sealed. A member suggested that it was the responsibility of court staff to protect the record and that the obligation of keeping personal information confidential was created once the document became a court record. Other members indicated that the proposed amendment to Rule 3.1 would impose a responsibility on attorneys to take steps to protect confidential information before filing documents.
A member observed that when traffic tickets are issued, these contain a driver's license number and date of birth. The member said that, under the proposed amendments, the officer would have to do an Appendix G for each traffic ticket because these cases are started without an attorney.
Judge Nelson MOVED to strike language in proposed rules that would include driver's license numbers and birth dates in definition of "personal information." Mr. Kuntz seconded.
A member asked whether all driver's licenses have a unique ID number. Another member explained that North Dakota licenses can no longer be issued with social security numbers and that all licenses bearing social security numbers will be replaced in a few years.
The motion to strike language CARRIED 16-1.
A member said that the language of the proposed rules should be changed to protect any medical records that are filed, regardless of whether they were "required" to be filed.
Ms. Moore MOVED to amend to strike "required to be" in reference to medical records. Mr. Kapsner seconded. The motion CARRIED without objection.
A member asked how the rules would affect offering of exhibits at trial--would proposed exhibits containing personal information need to be sealed? A member responded that once something is filed as an exhibit it would be open to inspection by the judge and jury. The member said that parties could move to have the exhibit sealed once it was no longer being used in the trial.
Judge Leclerc MOVED to strike the term "for years" on page 14, line 48 of the proposed rules. Mr. Kapsner seconded.
A member said that a change in language in accordance with the motion would deprive the court of necessary information. A member responded that the term "for years" might apply to tax records, but would not apply to medical records. A member said that it would also be useful to designate what years medical records were from. Another member commented that it would usually be useful to know what years tax records came from.
Mr. Kapsner MOVED to substitute language to retain the "for years" requirement for tax returns and not require it for medical records. Professor Bata seconded. The motion to substitute CARRIED 16-1. The motion CARRIED 15-2.
A member pointed out that the proposed amendments to Rule 3.1 and Rule 40 contained different definitions of "personal information" because tax returns and medical records were not included in the definition in Rule 3.1. The member said it was understandable, because Rule 3.1 listing of some types of information on a separate form and the sealing of medical records and tax returns.
Ms. Moore MOVED to delete the word "required" from page 13, line 39, and substitute the word "submitted." Ms. Schmitz seconded. The motion CARRIED without objection.
A member asked whether psychological and counseling information would be embraced under the definition "medical records." The Committee consensus was that such information would be considered to be part of a person's "medical records."
A member expressed some reluctance to following the Minnesota model in amending Rule 3.1 because the Minnesota confidential information rule only applied in family law cases. The member said that extending protection to personal information was a good thing, but that some of the problems the Committee was having with the language of the proposed amendments to Rule 3.1 grew from the fact that the rule the amendments were modeled upon was a family law rule. The member asked whether Minnesota had other provisions protecting personal information.
A member asked why parties should be allowed to submit a copy of an original document with personal information redacted as an alternative to submitting the personal information on a separate form. The member commented that this could lead to an excess amount of information in case files.
A member responded that, if parties are allowed to file originals and redacted copies, this removes a burden from the clerks, who otherwise, under the proposed amendments to Rule 40, would have to review the original documents to ensure that all personal information is redacted. The member said it is easier for a party to identify and redact personal information when a document is filed, even if this means filing an original and a copy of every document, than it is for the clerk to review documents already filed to try to identify personal information.
Judge Leclerc MOVED to delete language in the proposed amendment to Rule 3.1 allowing filing of originals and redacted copies. Judge Simonson seconded.
A member said that the amount of paper allowed to be filed under the proposed amendment would be overwhelming. The member pointed out that the proposed rules already were going to require placing information on a separate form.
Another member said that those who chose to file duplicate documents would simply file a redacted document and supply the unredacted original in an envelope. The member said that this did not seem too painful.
A member said that it was confusing what the practicing bar would be required to do under the proposed rule--file duplicate documents and the confidential information from or file one but not the other. The member said the proposed amendments needed to be clarified to make process more understandable to attorneys who would have to follow it.
A member said that what would likely happen would be the drafting of yet another administrative rule that would spell out in detail for the clerks exactly what process needed to be followed when dealing with personal information. The member said that the way court files are structured would likely change if the proposed amendments were approved. The clerks will need to adopt a system designed to prevent the inadvertent disclosure of protected information. The member said that the proposed rules could affect every court file.
The motion FAILED 2-8.
A member said that the language allowing filing of duplicate documents puts the burden on attorneys, not clerks, to redact personal information. The member suggested that malpractice insurance carriers should be queried on what the possible consequences would be for an attorney who fails to redact protected personal information.
A member suggested that the definition of personal information be scaled back to protect only social security numbers. The member suggested that education of the bench and
bar could be used to raise awareness of the need to limit use of other types of personal information in publicly accessible pleadings. The member said that a mandatory requirement for redacting and/or sealing of documents containing personal information would have significant implications and create an unworkable burden for practitioners.
A member pointed out that even Minnesota, which has rules much more extensive than North Dakota, has only one rule on protecting confidential information. The member said that the proposed rules seemed to be placing incredible responsibilities on clerks and attorneys.
A member said that the underlying rationale for the proposed rules was to protect social security numbers. The member said that there apparently had been no complaints about dissemination of other types of personal information.
A member commented that, regardless of the burden that the proposed rules might impose, the Committee had a responsibility to deal with the question of protecting social security numbers. The member also said it was appropriate to deal with credit card numbers, because these numbers are targets of identity thieves. The member said protecting tax returns and medical records might be less important. The member suggested that the "personal information" term be retained and that "personal information" be defined for the time being as being social security and credit card numbers.
A member said it was important to protect people from information theft while at the same time protecting attorneys and the court system from litigation regarding identity theft. The member said both goals would be met through limiting the protected items to social security and credit card numbers.
A member asked whether providing these limited protections would be sufficient, especially since social security numbers could often be found on tax returns and sometimes in medical records. Another member responded that social security numbers could be erased before such records were submitted to court.
A member said that social security numbers were essential in certain types of cases, particularly child support. Another member responded that these could be placed on the confidential information form as the proposed amendments provided.
Mr. Kapsner MOVED to remove "tax returns and medical records" from Rule 3.1 and reorganize and change the numbering of the rule to reflect this change. Judge Leclerc seconded.
Ways to efficiently reorganize and renumber the rules were discussed. A member said it was important to retain the use of "personal information" as the organizing term because, if necessary in the future, items could be added or removed from the definition of "personal information" without the need to rip the whole rule apart.
A member asked whether Appendix G, the personal information form, needed to be amended along with the rules to reflect the changed definition of "personal information." A member asked whether the sanctions section of Rule 3.1 punished clients by imposing an involuntary waiver of personal information protection based on attorney error.
A member observed that another approach to protecting personal information would be a rule allowing an attorney to redact any personal information found on documents filed with the court unless ordered by the court to include the information.
The motion to delete language and reorganize Rule 3.1 CARRIED 15-2.
Mr. Kapsner MOVED to amend the definition of personal information in Rule 41 to conform with the approved changes in Rule 3.1. Judge Simonson seconded. The motion CARRIED unanimously.
Professor Bata MOVED to delete lines 21-37 from Appendix G, the personal information form. The motion was WITHDRAWN without objection.
Professor Bata MOVED to delete language from Appendix G to be consistent with amendments to Rules 3.1 and 41. Ms. Moore seconded. The motion CARRIED unanimously.
A member asked whether the proposed amended rules would apply only to civil cases. The member said that social security numbers often come up in criminal cases, particularly those involving bad checks. So, the personal information form would be useful in criminal case--the social security number on the check, if any, could be redacted from the check and submitted on the Appendix G form.
Judge Simonson MOVED to change "civil number" to "case number" on Appendix G. Judge Hagerty seconded.
A member asked whether state's attorneys would be required to redact social security numbers from checks presented in evidence. A member observed that state's attorneys sometimes see hundreds of checks a month, and having to redact all the social security numbers would be very difficult. The member said that checks in criminal cases are exhibits
to be used in trials, not documents that are filed.
A member observed that state's attorneys typically provide copies of the check with the complaint--the member said that it would not be difficult for state's attorneys to black out the social security number, if any, on the copy. Another member said, on the other hand, that in some counties original checks are provided with the complaint and some counties even go so far to put the defendant's social security number on the caption of the complaint itself.
The motion CARRIED unanimously.
Mr. McLean MOVED to delete the proposed sanctions section of Rule 3.1. Ms. Moore seconded.
A member said that sanctions already contained in the procedural rules were adequate to punish transgressions and that the proposed privacy protection provisions did not need to include sanctions.
The motion CARRIED unanimously.
A member wondered whether any provisions could be added to limit the amount of privacy protections given to defendants in criminal cases. The member commented it would be burdensome on prosecutors to go through case documents and evidence and excise all personal information.
Judge Geiger MOVED to amend Rule 3.1 to add a new subdivision providing that parties who submit pleadings or papers to the court may redact all personal information. Ms. Schmitz seconded.
A member commented that the motion language was contrary to the approved amendments to the rule requiring personal information to be submitted on a separate document. Another member responded that the proposed new subdivision would allow personal information to be redacted from documents such as tax returns.
A member said that language should be added to the proposed new subdivision linking it the approved definition of "personal information" so that parties would not feel free to redact any and all information they defined as personal. Other members commented that, because "personal information" was already defined by the rule, no further linking language was required.
The motion FAILED 2-11.
A member asked whether the rules, if approved, would be considered at the next meeting. The Chair explained that the rules would not automatically come back for further consideration unless they were approved by less than a 2/3 vote of the Committee.
A member said that the rule amendments approved were not satisfactory, particularly Rule 41. The member said that it should not be the clerks' duty to protect personal information filed with the courts, but it should be the duty of parties who want protection to request redaction of documents already a part of the system.
A member commented that a party whose personal information has been submitted on a document may not realize that this has happened. A member said that attorneys put information such as social security numbers into complaints and documents and proposed findings as a matter of course.
A member responded that, once the personal information was filed, the other party or the court could request that personal information was redacted or sealed. A member said that all child support documents would then have to be sealed, because social security numbers are required on such documents. The member said that having a separate form for personal information, as allowed by the proposed amendments to Rule 3.1, would be simpler than having to seal all child support documents.
A member said that a better approach might be simply to restrict the clerks of court from disclosing any documents containing personal information. A member responded that if such a rule existed, the clerks would be required to read all documents in every file for before releasing anything in the file.
A member said that the trend is to cease requiring disclosure of social security numbers for routine uses. The member also commented that the trend of public opinion in North Dakota seems to be in favor of greater protection of personal information, such as social security numbers. The member said that the proposed rule amendments offered basic protection for personal information and should be tried.
A member said that the courts needed to do something to protect personal information. The member also said that in the case of bad checks, any social security numbers on the checks would have been "released" publicly by the writer/defendant, thus perhaps waiving privacy protections. The member said that the courts should give the rules as proposed a try because this is the only way to see whether the rules have problems.
The motion to recommend adoption of Rule 3.1, Rule 41, and Appendix G, as amended by the Committee CARRIED 9-6. This not being a 2/3 majority vote, the rules will be considered again at the Committee's January 2004 meeting.
RULE X, N.D. Sup. Ct. Admin. R. - CIVIL CASE MANAGEMENT; RULE 16, N.D.R.Civ.P. - PRETRIAL CONFERENCES; SCHEDULING; MANAGEMENT; AND RULE 40, N.D.R.Civ.P. - ASSIGNMENT OF CASES FOR TRIAL (PAGES 25-58 OF THE AGENDA MATERIAL)
Staff reviewed actions taken by the Committee on scheduling and case management proposals at the April 2003 meeting and explained proposed amendments to the Administrative Rules and Rules of Civil Procedure designed to implement the Committee's ideas regarding scheduling and case management.
Judge Foughty MOVED to approve the proposed amendments. Ms. Moore seconded.
A member recounted the history of the proposed administrative rule. The member said that when the Case Management Committee was unsuccessful in obtaining this Committee's approval of certain scheduling proposals last year, it went to the Presiding Judges Committee. The member said that the Presiding Judges agreed that the proposed changes should be sent to the Supreme Court for review, although not conglomerated in an administrative rule.
The member said that among judges, there had been adverse reaction to the idea of having the proposed scheduling changes in a single administrative rule. The member said that the proposal by Judge Christofferson to make certain changes to Rule 16 would accomplish necessary scheduling procedure changes and was preferable to Case Management Committee's proposal to put everything in an administrative rule.
The member said that the essence of Judge Christofferson's proposal was that scheduling conferences and more intense case management should only take place when triggered by certain events. The member said that Judge Christofferson's proposal to designate triggering events was contained in the proposed amendments to Rule 16 before the Committee.
Mr. Kapsner MOVED to delete proposed Rule X in its entirety. Judge Geiger seconded.
The Chair observed that the Supreme Court had sent Rule X to the Committee for
thorough revision and review. A member replied that the best possible form for Rule X would be deletion in its entirety.
The member said that Rule X should be deleted because matters of procedure do not belong in the Administrative Rules. The member said that Rule 16 was the place where matters of case management should be put and that whatever changes the Committee recommended in regards to case management should be in that rule. The member also said that the case tracking system proposed in Rule X was unnecessary.
A member said that presiding judges already have an adequate tracking/case management tool in the docket currency reports. The member said there were very few instances where judges were not in compliance with docket currency standards and that there were likewise very few cases so complex as to require special case management treatment.
A member said that the system of differential case management, i.e., tracking, proposed in Rule X was unnecessary and should not be made part of the rules.
The motion to delete Rule X CARRIED unanimously.
The Committee began discussion of the proposed amendments to Rule 16.
Judge Nelson MOVED that the proposed amendment which would make the filing of a non-dispositive motion a triggering event be deleted. Ms. Schmitz seconded.
A member said that having a number of events that could trigger a scheduling conference would not be overly burdensome. The member said that scheduling conferences generally do not take much time and that they often can be done over the telephone. The member said that the demand on time is so small that it would not be a burden to have scheduling conferences in cases where the parties are making motions.
A member commented that some motions are very small and very preliminary. The member said that even if the proposed provision were to be deleted, judges could still, on their own motion, hold scheduling conferences in cases where there was significant motion activity.
A member said that some districts have thousands pending at a given time and someone would have to physically look at all of the case to see if a triggering event, such as a motion being made, had taken place.
A member pointed out that the language of the rule seemed to imply that parties
would need to appear in person for any scheduling conference, therefore increasing the burden imposed.
The motion to delete the amendment making bringing of motions a triggering event CARRIED 15-2.
Mr. McLean MOVED that the proposed amendment which would make the filing of pleadings a triggering event be deleted. Judge Leclerc seconded.
A member said that parties can have good reasons for delaying filing of pleadings and the mere filing of pleadings should not start the clock running on having a scheduling conference. Another member commented that, under the rule, someone would have to monitor all pleadings filed to determine whether a triggering event had taken place in a given case and at what point a scheduling conference would be required.
A member stated that the information needed to determine whether a triggering event had taken place under the proposed amendments was already recorded on the docket currency reports and someone would merely have to keep an eye on those reports to determine in which cases scheduling conferences were required.
A member said that docket currency reports only come out once a year. Another member responded that the reports can be requested on a monthly basis, and in districts with many cases open, the reports should be requested and monitored on a monthly basis to ensure that cases are moving efficiently through the system.
A member asked whether the data necessary to determine whether a triggering event had taken place could be entered into the court administrator's computer database so that no person would have to physically monitor filings for triggering events. The consensus was that it could be done with some modification to the system.
A member asked whether there was a group of cases that was languishing now that would be more promptly resolved if the triggering mechanisms proposed were put in place. No Committee member listed any group of cases that would be resolved more quickly with the help of the triggering mechanisms.
A member pointed out that if the pleading filing triggering event was deleted, only proposed triggering events would remain. A member suggested that the proposed pleading filing provision could be changed to allow a longer period of time after filing before a scheduling conference was triggered.
A member suggested that, alternatively, Rule 40 could be amended to shorten the period of inactivity allowed after the filing of a matter. The member said this would place the burden on attorneys, rather than court personnel, to ensure that progress was being made toward resolution. The member suggested the court send out a dismissal notice after six months of inactivity in a matter and allow parties who do not want the matter dismissed to request scheduling conferences.
A member said that the pleading filing triggering event was unworkable because no case will be resolved within 30 days of filing unless the parties have already agreed to a settlement. The member said that the practical effect of the proposal would be a scheduling conference in every case that is filed.
The motion to delete the proposed amendment making filing of pleadings a triggering event CARRIED 16-1.
Mr. Kapsner MOVED to amend Rule 16 to amend language regarding witness disclosures at scheduling conferences. Judge Foughty seconded.
A member explained that the current language regarding witness disclosures was confusing because it seems to require submission of witness lists and exhibits at pretrial scheduling conferences. The member said that the purpose of the pretrial conference was to set dates for witness and exhibit disclosures. The member said it would be appropriate to amend the rule to indicate that timing of disclosures would be considered at pretrial conferences.
A member asked whether other language in the rule made the language change proposed by the pending motion redundant. Another member responded that the motion language was still required to clarify the rule.
Without objection, the language proposed in Mr. Kapsner's motion was changed to be consistent with other subdivisions in Rule 16.
A member said that many judges require witness disclosures much earlier than the final pretrial conference, especially those that hold only one pretrial conference. Another member responded that other judges do not seek detailed disclosures at early scheduling conferences and instead just set up a basic outline for pretrial activity.
A member said that the proposed new language would still allow judges to require disclosure of witnesses when they thought it appropriate. The member said the new language was an improvement because it did not imply that witnesses would have to be
disclosed at early scheduling conferences.
The motion to amend Rule 16 to amend language regarding witness disclosures CARRIED 16-1.
Judge Schneider MOVED to delete language in Rule 16 to delete language made extraneous by the previous motion to amend. Judge Hagerty seconded. The motion CARRIED 16-1.
Mr. Kuntz MOVED to delete proposed new language in Rule 16 referencing extent of discovery. Mr. Sturdevant seconded. The motion CARRIED unanimously.
A member commented that the proposed amendments to the rule seemed to require "good cause" before a scheduling order can be modified. A member said that the purpose of the language seemed to be keeping the court involved in any changes to the discovery schedule set out in the scheduling order. A member responded that N.D.R.Civ.P. 29 allows the parties to stipulate to changes in a discovery plan on their own, without court involvement.
A member said that Rule 29 allowed parties to agree to extend the time for discovery, or to deviate by agreement from the discovery schedule, as long as these actions did not conflict with other deadlines set by the court, such as motion deadlines.
Mr. Kapsner MOVED to delete proposed Rule 16 language requiring good cause before modification of scheduling orders. Judge Leclerc seconded.
A member asked how such a modification would affect attorney stipulations under Rule 29. A member responded that removing the good cause language would not affect attorneys' ability to stipulate to discovery plan changes. A member questioned whether parties would be free to deviate from a discovery plan set out in a court order. A member said that the proposed language in Rule 16 seemed to require parties to get a court order to deviate from a scheduling order.
Without objection Mr. Kapsner's motion was expanded to also delete the proposed requirement for leave of court before modification of a scheduling order.
A member commented that the motion as amended might go too far because the remaining language suggested that a scheduling order could be modified without any court involvement at all, which is not the case in matters other than discovery.
A member asked whether the modification provision was necessary at all, since courts have the inherent power to modify their own pretrial orders. A member suggested that perhaps Rule 29 should be mentioned in Rule 16 to clarify that the court's leave is required to modify a scheduling order in areas other than discovery.
A member said that Rule 29 by its own terms applies only to discovery and activity under it should be of no consequence to the court because the court does not take an active role in discovery under North Dakota rules. A member said mention of Rule 29 in Rule 16 might be a good way to make parties aware of Rule 29.
A member said that completely eliminating the modification provision as proposed would not be helpful because having the provision makes parties aware of the fact that scheduling orders can be modified.
A member said it was not necessary to have a modification provision in every rule referencing court orders. The member pointed out that numerous rules allowing motions exist, and it should not be necessary to spell out to parties in every case that they have an option to seek modification of court orders.
Judge Hagerty MOVED to substitute language under which the modification provision would be retained, but reference would be made to Rule 29. Judge Leclerc seconded. The motion to substitute CARRIED 14-3.
The motion to amend the modification provision CARRIED 16-1.
Mr. Sturdevant MOVED to amend Rule 16's list of subjects open for discussion at a scheduling conference to include the allocation of peremptory challenges. Mr. Kapsner seconded.
A member asked what was meant by "allocation" of peremptory challenges. A member responded that the number of challenges was set by law, it was the allocation of challenges among parties that sometimes is the subject of arguments.
The motion CARRIED 16-1.
Judge Schneider MOVED to amend Rule 40(e) to change "want of prosecution" to "inactivity" and to change "one year" to "six months." Judge Leclerc seconded.
A member said the change was appropriate because, in most matters, much activity has taken place by the time the matters are filed and they should be ready to resolve within
six months of filing. The member said that shortening the deadline would show the Supreme Court that the Committee is serious about getting cases moving through the system.
A member responded that lawyers who move cases along on their own should get some credit and shortening the deadline for inactivity dismissal would unfairly penalize lawyers who do not bother the court until time for trial. Another member said that it's not uncommon for very little to happen in the first six months after a case has been filed, and if the deadline was shortened, requests for the case to stay open would be likely in almost every case. The member said that if the one year deadline is retained, more cases will be resolved without court involvement or dismissed without challenge.
A member responded that while some complex civil matters may need to brew for a year before activity is required, it would be helpful if the parties were prodded along quicker in matters such as domestic cases.
A member asked whether any study had been done on what kinds of civil cases attract the greatest share of inactivity notices. The member said that many seem to come in debt collection cases, where creditors want matters to stay pending so that debtors feel an incentive to continue making payments.
A member said that the proposed amendment allowed courts to send out dismissal notices after six months, but did not require such actions. The member said the proposed change would give the courts more flexibility in sending out notices at different times for different types of cases.
A member questioned whether "inactivity" was a proper term to use in the rule. A member said that the activity level in some seemingly dormant cases may be very high, especially if discovery is ongoing. The member said that if the amendment was improved, an additional amendment allowing the filing of discovery materials would be useful so that the court could see that activity was ongoing.
A member said filing of discovery was not a good idea. The member said that the intent of the change was to impel parties, in cases where activity is not visible to the court, to come to the court and let the court know what is going on in a forum such as a scheduling conference.
A member said that the "inactivity" language was not consistent with N.D.R.Civ.P. 41, which allows dismissal for failure to prosecute. The member said that Rule 41 might need to be amended if the "inactivity" language is accepted.
A member commented that the current one year timeline already represents a reduction from the previous two year timeline for dismissal for failure to prosecute.
A member said that moving the dismissal timeline to six months would essentially impose a requirement for a scheduling conference in every case that is filed.
A member said that judges usually only get notice of inactivity when the computer issues reports that nothing has been filed in a matter for one year. The member said that perhaps if there was a provision for parties to file a notice of activity after six months, this would eliminate concerns about the shorter timeline.
The motion to amend Rule 40(e) DEFEATED 6-10.
A vote was taken on the motion to send Rule 16 and Rule 40 as amended to the Supreme Court. The motion CARRIED 11-4.
Questions were raised as to the effect of the vote on the motion, given that the case management proposal originally had been sent to the Committee for review and revision, not necessarily for an adoption recommendation. Some Committee members indicated that they thought the case management package was in the best possible form, but they did not necessarily agree that it should be adopted. After discussion and clarification of the pending issue, a revote was called for.
The motion to recommend adoption of Rule 16 and Rule 40 as amended to the Supreme Court CARRIED 11-6.
RULE 8.10, N.D.R.Ct. - EXTRAORDINARY WRITS (PAGES 59-89 OF THE AGENDA MATERIAL)
Staff reviewed actions taken by the Committee on Rule 8.10 at its April 2003 meeting. Staff explained informational material it prepared for the Committee on writ procedure. Staff also explained proposed additional language for the proposed rule and discussed feedback submitted to the Committee on the proposed rule.
The meeting recessed at approximately 4:00 p.m., September 18, 2003.
September 19, 2003 - Friday
The meeting was called to order at approximately 9:00 a.m., by Justice Dale V. Sandstrom, Chair.
RULE 8.10, N.D.R.Ct. - EXTRAORDINARY WRITS (PAGES 59-89 OF THE AGENDA MATERIAL)
Ms. Schmitz MOVED to approve the proposed rule. Professor Bata seconded.
A member asked why the proposed rule required a "verified petition" from those applying for writs. Staff explained that the writ statutes generally required an affidavit or sworn statement from writ applicants. A member commented that writs are often issued without a hearing, so a sworn application is necessary.
A member asked whether the Rules of Civil Procedure should govern writ proceedings, as required in the proposed rule. The member said that such a requirement might create confusion because writ proceedings were different than typical civil proceedings.
A member pointed out that N.D.R.Civ.P. 81 exempts most writ proceedings from the Rules of Civil Procedure. Staff explained that the Committee would need to determine whether the proposed rule would supersede the writ statutes listed in Rule 81 and then decide whether to amend Rule 81 to delete some or all of its references to writ statutes.
A member suggested that the language in Rule 81 might be a starting point for modifying the language in the proposed rule to limit application of the civil rules in writ proceedings. A member commented that some rules have to apply to writ proceedings in district court and it makes sense that the civil rules would apply. The member said that allowing discovery, however, would not be appropriate since writ proceedings should happen quickly. The member suggested that discovery should only be allowed in writ proceedings when the court allows it.
Mr. Kuntz MOVED to amend paragraph (a)(3) of the proposed rule to add language limiting application of the civil procedure rules to writ proceedings. Professor Bata seconded.
A member said there needed to be an explicit limit on discovery in the proposed rule. A member responded that some writ cases, such as those involving the seating of elected officials, need to be decided without discovery. A member replied that the rule should give discretion to judges to decide whether to allow discovery in a given case.
A member said that the language of the proposed rule made it clear that it is within the court's discretion to decide whether a hearing is necessary and that it could be implied from the proposed language that the court also had discretion to determine whether discovery should be allowed. A member responded that writ proceedings could be attractive to pro se litigants and that, consequently, it was important to express explicitly any limitations connected with writ proceedings.
A member commented that in federal habeas corpus proceedings, discovery is conducted routinely, and this is an example of a writ proceeding where discovery is generally necessary. Staff explained that the writ statutes contain guidance for how writ proceedings may be carried out after the initial application is made, including procedures equivalent to discovery.
A member said that the proposed amendment would not make any difference in the rule. The member said that the proposed provisions regarding the civil rules should be deleted and more specific language substituted. A member added that, if the writ statutes are not superseded, the proposed rule's language would also need to specify that the statutory provisions govern unless otherwise specified.
A member asked whether the Committee should go ahead and supersede all the writ statutes. Staff stated that such action could deprive the courts of a resource they have used in the past, given that the courts have often looked to the writ statutes in determining what relief can be granted and what steps to take after a writ application is received. Staff noted that the proposed rule in its present form only deals with the application process and not with what the courts may do once an application is received.
A member suggested that there was a need to educate the practicing bar on writs and writ procedures.
Professor Bata MOVED to substitute for the pending motion new language referencing N.D.R.Civ.P. 81. Judge Foughty seconded.
A member suggested that the proposed language be revised to apply to both actions in district court and the Supreme Court so that necessary provisions of the Rules of Civil Procedure could be used when the Supreme Court takes up writ matters under its original jurisdiction.
The motion to substitute new language FAILED 7-7 for lack of a majority.
A member suggested that reference be made to Rule 81 in the explanatory note, even
though the motion to add reference to it in the proposed rule failed. The member also suggested that the pending motion be amended so that paragraph (a)(3) did not begin with "except." The Chair pointed out that placing the amended language at the beginning of the sentence was necessary because the amendment is intended to apply to all clauses of the paragraph.
A member stated that the amendment of subdivision (c) of the proposed rule would make amendment of paragraph (a)(3) unnecessary. The member suggested addition of language from N.D.C.C. §§ 29-32.1-07 and 29-32.1-08 to subdivision (c) of the proposed rule. The member said that adding this language would make clear the court had discretion to set limits for discovery and to make orders regarding amendment of petitions and responses.
A member responded that the proposed language would be useful, but its addition would not eliminate the need for referencing the civil procedure rules for such purposes as setting standards for service, time counting, and other basics.
The motion to amend paragraph (a)(3) CARRIED 13-0.
Mr. Kapsner MOVED to add language adapted from N.D.C.C. §§ 29-32.1-07 and 29-32.1-08 to subdivision (c) of the proposed rule. Judge Geiger seconded.
A member asked whether "final order" should be used in the amended language. The consensus was that this was reasonable. Another member asked whether the "final order" in a writ proceeding was a "judgment."
A member asked whether the Committee was under any time pressure to approve a final version of the rule. The Chair said that the Committee could postpone final approval of the rule as long as needed so that the rule could be put in the best possible form.
The motion to amend subdivision (c) CARRIED unanimously.
Mr. Kuntz MOVED to add a new paragraph (b)(4) requiring a copy of the petition to be served on respondents. Mr. Sturdevant seconded.
A member asked whether a requirement to serve respondents was implied through the rule's incorporation of the Rules of Civil Procedure. A member responded that ex parte action on writ applications was not precluded by the rule, and some parties are inclined, when ex parte relief is possible, to seek such relief without informing other affected parties. The member said it was important that the rule specifically require notice to respondents.
A member asked whether there would be some situations where notice could not be given because of time constraints or non-availability of the respondent. A member responded that, under the proposed language, a party could still seek immediate ex parte relief--such a party, however, would be required to serve respondents and inform them that such relief was being sought.
A member commented that the rule and the writ statutes allow the court to take some actions without a response or hearing. The member said that the service requirement was necessary to give respondents an idea of what was going on. The member said there was no excuse, given the availability of modern means of communication, for a petitioner not to give some sort of notice to respondents of a pending writ petition.
The motion to incorporate notice requirement CARRIED 14-1.
Mr. Mack MOVED to add language to the explanatory note cross-referencing N.D.R.Civ.P. 81. Judge Geiger seconded. The motion CARRIED unanimously.
A member asked what is the meaning of "considered" under the "statutes affected" part of the explanatory note. The Chair explained that the Committee had a long-standing tradition of noting the statutes that it had considered in discussion of a rule as a way of making it clear that it did not forget about these statutes in making decisions on what statutes the rule superseded.
Ms. Moore MOVED to postpone further consideration of the rule until the Committee's January meeting. Professor Bata seconded. The motion CARRIED unanimously.
RULE 13, N.D. Sup. Ct. Admin. R. - JUDICIAL REFEREES (PAGES 90-110 OF THE AGENDA MATERIAL)
Staff reviewed changes approved by the Committee to the rule and discussed the Supreme Court's most recent commentary on the rule. Staff explained proposed amendments to the rule prompted by the Court's comments.
Ms. Schmitz MOVED to adopt changes proposed for Rule 13. Professor Bata seconded.
A member raised concerns about allowing only three days for a party to respond to a request for review. The member said juvenile matters often involve pro se parties who are
not experienced with the judicial system and not prepared to respond within a three day time frame.
Mr. Mack MOVED to change "three" to "ten" in the proposed amendment to Section 11(a) of Rule 13. Judge Schneider seconded.
A member asked whether the time to submit a request for review should remain at three days if the time to respond is changed to ten. A member asked whether N.D.R.Civ.P. 6 on counting would apply to the time frames proposed, since application of Rule 6 could conceivably increase the ten day deadline by several days. A member responded that Rule 6 would apply.
A member pointed out that, with a short deadline, beginning counting when a notice is received rather than when served is cause for concern. The member suggested a reference to service would be appropriate.
The motion to substitute "ten" for "three" CARRIED unanimously.
Mr. Sturdevant MOVED to substitute "service of" for "receiving" in Section 11(a) of Rule 13. Mr. Kapsner seconded.
A member asked whether three days from service was an adequate time for a party to decide whether to request review of a referee decision. A member commented that this was a very tight time frame, and it seemed somewhat unfair given that the Committee changed the time for a response to ten days.
A member said that by changing the counting date from the date of receipt to the date of service, the time to request review is dramatically shortened, perhaps only to one day. The member said counting from the date of service would work when there is a ten-day deadline, but likely not work when there is a three-day deadline. A member said that service would be preferable as the triggering event and the deadline should be ten days in both cases.
A member commented that most referee decisions involve child support enforcement proceedings, which are under a tight time line. The member said there was a stronger rationale supporting the three-day deadline for requesting review because having a short deadline leads to shorter time frames for resolving child support cases. The member also said that requesting review requires less work and research than responding to a request for review.
A member pointed out that requests for review still must be supported and explained the reasons why review is sought. A member responded that quickness in resolution of child support matters is linked to the compensation the state receives from the federal government, so the Committee should be careful in making changes that might lengthen the time needed to resolve child support matters.
A member said that service in a referee case would be service on an attorney, and three days does not give an attorney much time to receive the document, contact and consult with the client, and decide a course of action.
A member pointed out that having time run from time of service rather than receipt was in line with the rest of the procedural rules and also with Section 8 of Rule 13 itself. A member asked whether anyone knew of anyone ever having problems with meeting the three-day deadline to request referee review. No other members could cite any problems.
Mr. Sturdevant MOVED to amend the pending motion to include the second mention of "receiving" in Section 11(a). Ms. Moore seconded. The motion CARRIED 11-2.
The pending motion, as amended, CARRIED 11-2.
A member pointed out the three-day requirement in Section 8 of the rule. The member said that three days was not enough time for an unrepresented party to make a decision on whether to request a district judge in a juvenile matter. The member said that more time should be allowed.
A member commented that many juvenile hearings have to take place soon after initiating documents are prepared. A member said that the three-day deadline is specified on juvenile summonses, not just in Rule 13, so parties are given notice of the short time frame they have in which to decide whether to request a district judge.
A member responded that, even though parties have notice, three days is still a tight time frame.
Mr. Hoffman MOVED to replace "three" in Section 8 of Rule 13 with "five." Ms. Moore seconded. The motion CARRIED 10-4.
Professor Bata MOVED to send the rule, as amended, to the Supreme Court immediately so the amendments could be considered with the annual rules package. Mr. Kapsner seconded. The motion CARRIED unanimously.
RULE 52, N.D.R.Civ.P. - FINDINGS BY THE COURT (PAGES 111-144 OF THE AGENDA MATERIAL)
Staff reviewed application of the rule to juvenile matters and discussed proposed amendments to the rule designed to harmonize treatment of findings in juvenile cases to conform with treatment of findings in other civil cases.
Ms. Moore MOVED to adopt changes to Rule 52. Mr. Mack seconded.
The Chair explained that, when the issue of what standard of review to apply in juvenile cases first arose, the Supreme Court felt that it was required by statute to apply a de novo standard. The Chair stated, however, that since the time the Court adopted the de novo standard, the North Dakota Constitution has been amended, giving the Court more freedom to decide on its own procedural standards.
A member asked whether there was anything special about juvenile proceedings that made continued application of a de novo standard of review appropriate or necessary. A member replied that only history justified the de novo standard--cases such as divorce cases involve decisions important to children, yet they are subject to clearly erroneous review.
A member commented that referees should not have the authority to make decisions that are not subject to de novo review by an elected judge at some point. A member replied that, under the Committee's amendments to Rule 13, referee decisions are subject to de novo review by the district court.
A member said that many referees now working in North Dakota had developed special expertise in juvenile law and were better prepared to make decisions in juvenile cases than district judges. The member also pointed out that, in cases where review of a referee decision was requested, the district court would now be required to apply a de novo standard.
A member asked whether review of juvenile referee decisions at the Supreme Court level would be subject to the same scrutiny as a decision of a special master. It was noted that the proposed new language in the rule required the same standard of review to be applied.
A member asked whether the Supreme Court thought the de novo standard was an anachronism. The Chair said that at least one member of the Court had stated that application of the de novo standard in juvenile cases seemed an anomaly given that other
important matters, such as those involving termination of parental rights, were reviewed under the clearly erroneous standard.
The motion to adopt the proposed changes to Rule 52 CARRIED unanimously.
Mr. Mack MOVED to send the rule to the Supreme Court immediately. Mr. Kapsner seconded. The motion CARRIED unanimously.
RULE 20, N.D. Sup. Ct. Admin. R. - MAGISTRATES--QUALIFICATIONS, AUTHORITY, EDUCATION AND PROCEDURES (PAGES 145-156 OF THE AGENDA MATERIAL)
Staff discussed requests received from the South Central Judicial District on expanding the authority of magistrates and explained proposed amendments to the rule which would implement the recommended changes.
Ms. Schmitz MOVED to approve the amendments to Rule 20. Mr. Sturdevant seconded.
A member asked whether the intent of the amendments was to allow magistrates to just issue preliminary orders to hold hearings and issue permanent orders. A member commented that there was no requirement that magistrates be law trained and allowing such magistrates to issue protective and restraining orders would be inappropriate. A member said that, if this is the case, magistrates should only be allowed to issue preliminary orders and hearings for permanent orders should be before a district judge.
A member said that Rule 20 and the proposed amendments allow presiding judges to delegate powers to magistrates, but do not force the presiding judges to give powers. Therefore, a presiding judge could decline to give a non-law trained magistrate the power to hold hearings or issue permanent orders. The member said that the magistrates were already allowed to make important decisions, such as in search and arrest warrant matters. The member said that presiding judges should be given the flexibility to authorize magistrates to issue permanent protective and restraining orders.
A member asked under what circumstances a magistrate would be allowed to exercise this power. A member responded that in the South Central Judicial District, the desire was to have magistrates issue such orders routinely and not just on an emergency basis.
A member said that some law trained magistrates were well qualified to perform such
work, but that in rural areas, non-law trained magistrates should not be given the power to issue protection and restraining orders. A member pointed out that Rule 20 gives presiding judges discretion to distribute authority to magistrates and that it will not be required that all magistrates be allowed to issue protective and restraining orders.
A member asked whether the proposed measure was the first to allow magistrates to become substantively involved in domestic relations law. The member wondered whether this was a first step to creating a magistrate's family court. A member responded that magistrates already had many powers to act in matters where a decision was needed quickly, such as search warrant cases and traffic cases.
A member said that giving districts with law trained magistrates the power to use those magistrates with some flexibility was important.
Without objection, the Committee agreed that the "pursuant to" language in Rule 20 as a whole should be changed to "under." Without objections, the Committee decided that sentences containing the phrase "policy of" should be changed to active construction.
A member said that rephrasing the proposed language to make reference to the entire chapters involving restraining orders and protection orders would be useful. Without objection, the Committee agreed such a change should be made.
A member asked whether it wouldn't be more appropriate to amend the referee rule rather than the magistrate rule since the Committee agreed that it did not want non-law trained people to have the powers being granted in the proposed amendments. A member responded that referees could not act without notice being given, so giving the referees these powers would create more problems than it would solve.
The motion to send the rule to the Supreme Court as part of the annual rules package CARRIED 13-1.
A member raised the issue of whether the rule should be referred to another committee before being sent to the Supreme Court. The Chair explained that the Court could send the rule out to another committee for review if it decided that the rule implicated court administration issues.
RULE 44, N.D.R.Crim.P. - RIGHT TO AND APPOINTMENT OF COUNSEL (PAGES 157-176 OF THE AGENDA MATERIAL)
Staff explained the impact of the United States Supreme Court's decision in Alabama v. Shelton on North Dakota practice and discussed proposed amendments to the rule's explanatory note that would reflect the impact of Alabama v. Shelton.
Judge Geiger MOVED to approve the proposed changes to Rule 44. Ms. Schmitz seconded.
A member stated that many courts already followed the policy set forth in the explanatory note.
Judge Geiger MOVED to amend the explanatory note to include language referencing deferred imposition of sentence. Judge Nelson seconded.
A member asked whether the Shelton decision would change much in court practice and asked whether new counsel would need to be hired in light of the decisions. Various members responded that the Shelton policy is standard practice in North Dakota courts and there would be no deluge of new cases where counsel would need to be appointed.
A member asked how the change might relate to child support hearings. A member responded that, when delinquent child support obligors face the possibility of incarceration, court-appointed counsel is available.
A member asked whether a sentence could ever be deferred without the possibility of incarceration being preserved. A member responded that the state's attorney could waive the possibility of incarceration, thus eliminating any right the defendant might have to court-appointed counsel. A member said that when this happens, the court requires the state's attorney to make such waiver on the record. A member said that incarceration waivers generally happen at the initial appearance so the question of whether a court-appointed attorney is required is dealt with quickly.
A member said that a sentence to probation does not implicate the right to counsel, even though incarceration is a possibility when probation is given.
A member asked whether Shelton should be cited in the explanatory note. It was explained that Committee policy is not to cite cases in explanatory notes because of the need, if this is done, to constantly update the cites. A member said that people looking for case law underpinnings of rule changes can look to the Committee's records on the web or refer to one of the annotated rule books for case law.
Judge Geiger MOVED to amend his motion to remove reference to incarceration.
Judge Hagerty seconded.
A member said that mere reference to deferred imposition of sentence without mentioning incarceration was not enough because then court-appointed attorneys would be sought in every case involving deferred imposition of sentence.
Without objection, Judge Geiger changed his motion to include the language "unless a period of incarceration is waived."
A member asked whether judges who allow waiver of incarceration when a deferred imposition is granted note the waiver of incarceration on the judgment. A member replied that the waiver is reflected in the record, but it may show up on the judgment. A member commented that this can create problems when a different judge handles a case that comes back for revocation of probation. A member said judges need to go back and look at all the case notes to see whether incarceration is waived, but the member admitted that this is a lot of work. A member said that waiver of incarceration should be noted on the judgment to head off potential problems.
A member said that the proposed amendment seemed to add a level of confusion to the explanatory note. Another member suggested that, when the sentence in question is read in context with the previous sentence, the additional language may be unnecessary.
The motion to add language relating to deferred imposition of sentence CARRIED unanimously.
A member said that rewriting the language to make the two sentences one sentence would help make the note more understandable. Without objection, the two sentences were combined into one sentence and the language of the sentence was modified to make the language of the new sentence consistent with the rest of the paragraph.
Judge Schneider MOVED to add "a possible term of imprisonment" to the explanatory note and to delete language relating to suspended and deferred sentences. Judge Hagerty seconded.
A member commented that this change could create problems because defense attorneys could argue that those who could face incarceration because of potential non-payment of fines should be entitled to an attorney. A member commented that under the language, if there was a possibility at all that a defendant could end up in jail in a given case, such as for contempt, then the defendant could argue they should be given an attorney.
A member commented that the possibility of waiving a term of imprisonment is not dealt with in the rules of procedure. A member responded that the possibility of waiver was mentioned in a Supreme Court case. The member said that waiver should be addressed by rule.
A member said that if waiver is dealt with in rules, this may amount to an invitation to the legislature to create mandatory sentences barring such waiver. A member said that the obtaining waiver of incarceration is often a local practice that would be difficult to deal with in the rules. A member responded that obtaining waiver was consistent with what the legislature has mandated because the law allows state's attorneys the ability to exercise wide ranging discretion, including waiving imprisonment, at early stages of criminal matters.
A member commented that the possibility of a magistrate obtaining waiver of imprisonment already is mentioned in the language of the rule itself and the Committee was simply working to explain the consequences of waiving imprisonment through the explanatory note.
A member said that the language referencing deferred imposition of sentence and suspended sentences needed to stay in the rule so that it could be used to help educate people about when a court-appointed attorney can be authorized. The member said it is already very difficult to explain to the public that a court-appointed attorney is not required in all criminal cases. The member said the language added made clear that getting a court-appointed attorney was possible only if a defendant could go to jail.
The motion to insert new language and delete reference to deferred imposition of sentence and suspended sentences FAILED 6-8.
Without objection, excess language in the sentence was deleted.
Ms. Schmitz MOVED to substitute "imprisonment" for "incarceration" in the sentence for the sake of consistency with the rest of the rule and explanatory note. Professor Bata seconded.
Without objection, "period of" was deleted from the sentence.
A member asked whether every deprivation of liberty constituted imprisonment, and if it did not, what level of deprivation of liberty constituted imprisonment. A member responded that the purpose of the proposed changes was to make sure the rule was consistent with Shelton, which refers to imprisonment. The member said that interpretation of the different terms would have to be fought out later in the courts.
The motion to substitute "imprisonment" CARRIED unanimously.
Professor Bata MOVED to insert a comma before the word "unless." Ms. Schmitz seconded. The motion CARRIED.
A member asked whether a mental health commitment would constitute "imprisonment." A member responded that it did not constitute imprisonment, but that people being institutionalized involuntarily were entitled to an attorney. A member commented that, as a practical matter, no one is sentenced to involuntary commitment without representation.
Judge Simonson MOVED to strike "non-felony" and substitute "misdemeanor" in the explanatory note. Judge Foughty seconded.
A member said the change would be appropriate because the term non-felony could include infractions as well as misdemeanors. A member pointed out that non-felony is the term used in the text of the rule itself. A member asked whether there were infraction cases that could involve imprisonment.
Without objection, Judge Simonson was allowed to change his motion so that it would call for replacing "non-felony" with "misdemeanor" throughout the rule.
A member commented that imprisonment could be imposed for a second infraction. Review of the statute established that a second infraction is sentenced as though it is a misdemeanor, but is classified as a infraction.
Without objection, Judge Simonson withdrew his motion.
The motion to send the rule as amended to the Supreme Court CARRIED unanimously.
Mr. Mack MOVED to send the rule as amended to the Supreme Court for immediate consideration. Ms. Schmitz seconded. The motion CARRIED unanimously.
The meeting adjourned at approximately 12:00 noon, September 19, 2003.
Michael J. Hagburg