MINUTES OF MEETING
Joint Procedure Committee
September 23-24, 2010
TABLE OF CONTENTS
Rule 8.2, N.D.R.Ct., Interim Orders in
Domestic Relations Cases 3
Rule 12.1, N.D.R.App.P., Remand After an Indicative Ruling by the District Court on a Motion for Relief That Is Barred by a Pending Appeal 7
Rule 62.1, N.D.R.Civ.P., Indicative Ruling on a Motion for Relief That is Barred by a Pending Appeal 9
Rule 55, N.D.R.Civ.P., Default 9
Rule 13, N.D.R.Civ.P., Counterclaim and Crossclaim 10
Rule 707, N.D.R.Ev., Analytical Report Admission; Confrontation 10
Rule 48, N.D.R.Civ.P., Number of Jurors; Verdict 13
Rule 20, N.D. Sup. Ct. Admin. R., Magistrates-Qualifications, Authority, Education and Procedures 14
Rule 12, N.D.R.Juv.P., Discovery 15
Rule 41, N.D. Sup. Ct. Admin. R., Access to Court Records 16
Rule 20, N.D. Sup. Ct. Admin. R., Magistrates-Qualifications, Authority, Education and Procedures 21
Rule 54, N.D.R.Civ.P., Judgment; Costs 21
Rule 32.1, N.D.R.Crim.P., Deferred Imposition of Sentence 23
Rule 16, N.D.R.Civ.P., Pretrial Conferences; Scheduling; Management 24
Rule 8.5, N.D.R.Ct., Domestic Relations Summary Proceeding 25
Rule 7.1, N.D.R.Ct., Judgments, Orders and Decrees 26
Rule 8.13, N.D.R.Ct., In Chambers Interview of Child in Custody or Visitation Case 27
Rule 41, N.D.R.Crim.P., Search and Seizure 32
Rule 45, N.D.R.Civ.P., Subpoena 32
Rule 26, N.D.R.Civ.P., General Provisions Governing Discovery 33
CALL TO ORDER
The meeting was called to order at 1:00 p.m., on September 23, 2010, by the Chair, Justice Mary Muehlen Maring.
Justice Mary Muehlen Maring,
Honorable Laurie Fontaine
Honorable John Greenwood
Honorable William A. Herauf
Honorable Debbie Kleven
Honorable Steven McCullough
Honorable William McLees
Honorable David W. Nelson
Honorable David E. Reich
Mr. Larry L. Boschee
Mr. Daniel Dunn
Mr. Robert Hoy
Mr. Galen J. Mack
Assistant Dean Jeanne L. McLean
Ms. Joanne Hager Ottmar
Mr. Steven W. Plambeck
Mr. Bruce D. Quick
Honorable Thomas J.
Mr. Richard H. McGee
Mr. Kent Reierson
The Chair set out the schedule for the meeting.
APPROVAL OF MINUTES
Judge Herauf MOVED to approve the minutes. Judge Reich seconded. The motion to approve the minutes CARRIED unanimously.
Staff explained that, at the April 2010 meeting, the Committee instructed staff to research whether the ex parte process applies in post-judgment modifications and to draft alternative amendments regarding affidavit practice. Staff presented the Committee with proposed amendments to Rule 8.2 reflecting the Committee's suggestions.
Judge McCullough MOVED to approve the amendments to Rule 8.2 (Alt. A). Judge Kleven seconded.
A member said that the proposed change in the rule's language about ex parte proceedings did not seem to correct the tension between N.D.C.C. § 14-09-06.6 and the existing rule. The member said the proposed change in the rule, because it required notice to the opposing party, would not be an ex parte proceeding.
A member said that there may be a need for an ex parte order early in an action because no other orders are in place. The member said this was not the case post judgment, which could explain why post judgment orders are treated differently.
A member said there are reasons why an ex parte order could be needed post judgment, such as when a parent with primary residential responsibility goes to jail. The member said a legislative fix to the statute would be the best way to relieve the tension between the statute and the rule.
A member said that one approach was to require applicants for ex parte orders to follow N.D.C.C. § 14-09-06.6's notice requirements before the court considers the application. The member said this causes a delay but allows the ex parte order to be issued without disobeying the statute.
A member said that ex parte relief is based on exceptional circumstances, which exist at a given moment and may change for the worse during a delay to give notice. A member agreed that the proposed fix to the rule would not resolve the problem of delay.
A member said that members of the family law bar were concerned that procedure for ex parte orders was inconsistent across the state. The member said that if the proposed change was adopted, there would be a consistent procedure for post judgment ex parte orders. A member said that under the proposal, a party could file a proposed ex parte order along with notice and motion under N.D.C.C. § 14-09-06.6. The court can then grant the order pending resolution of the motion.
A member said, by definition, an ex parte order cannot be granted unless it is necessary due to exigent circumstances. The member said that N.D.C.C. § 14-09-06.6 does not take away a court's jurisdiction to respond to an emergency and that the rule should make it clear that a court may respond to an emergency with an ex parte order pending the prima facie case.
A member said the problem is the abuse of the system: parties come to the court with horrendous affidavits that are not subject to cross examination. The court then issues an ex parte order without hearing the rest of the story. The member said N.D.C.C. § 14-09-06.6 is designed to head off the problems of one sided ex parte orders.
A member said N.D.C.C. § 14-09-06.6 requires the court to deny a motion until a prima facie case is established, which cannot happen until the opponent has a chance to respond. The member said, however, that the statute deals with primary residential responsibility and that it should be possible to craft the rule to allow a residence to be changed temporarily prior to determination of permanent responsibility. A member responded that N.D.C.C. § 14-09-06.6 would still govern a temporary change of primary responsibility.
A member said there are situations where ex parte relief is necessary post judgment. The member asked whether amending the rule would create a situation where N.D.C.C. § 14-09-06.6 said one thing and the rule said another, a situation that the Supreme Court or legislature might ultimately need to sort out. The member said practitioners could challenge orders issued contrary to the statute as illegal and seek relief regardless of what the rule says. A member said having two rules, one in N.D.C.C. § 14-09-06.6 and another in the statute, would not get North Dakota to a uniform practice.
A member said that in addition to a uniform rule on ex parte orders for primary responsibility, the rule needed a provision for parties who are just seeking changes in parenting time.
A member said that the issues before the Committee could best be addressed by the legislature, given that a legislative session was about to open. The member said the Committee was setting itself up for failure if it amended the rule in a way not in conformity with N.D.C.C. § 14-09-06.6. A member responded that there was really no task force or group in place to develop statutory amendments and take them to the legislature. A member said the Family Law Section could possibly look at the issue at its November seminar.
A member responded that if it is necessary to move a child, the courts need to be able to do it. The member said a child could be moved under N.D.C.C. § 14-09-06.6, but the move would be delayed and the child might be endangered during the delay.
A member said a judge considering issuing an ex parte order is required to determine the existence of exceptional circumstances--such an order should not be issued as a matter of course.
A member asked whether it was possible, without changing primary residential responsibility, to grant an ex parte order giving a party additional parenting time while a motion is pending. The member said this could allow a court to move a child to a safe environment until the matter was resolved. The consensus was that this could be done without conflict with N.D.C.C. § 14-09-06.6.
A member suggested that language allowing ex parte modification of "parenting time" be integrated into the rule. The Committee discussed possible language for an amendment on "parenting time."
A member said that courts in the past had taken the step, on an ex parte basis under exceptional circumstances, to extend parenting time rather than changing primary residential responsibility. There is no statutory bar to a court extending parenting time ex parte, because this is not a permanent modification.
A member suggested that any proposed new language should make clear that exceptional circumstances are required before an ex parte extension of parenting time can be granted. A member said that the language of Rule 8.2 already required exceptional circumstances before entry of any ex parte order.
A member said the language should make clear that no ex parte interim order can be issued to change primary residential responsibility but that such an order may be issued to extend parenting time under appropriate circumstances. A member suggested that primary residential responsibility and parenting time be dealt with in separate new paragraphs in the rule.
A member explained that the proposed new paragraphs would make it clear that no ex parte interim order could be issued post judgment changing primary residential responsibility, but that an order could be issued post judgment extending parenting time.
The Committee discussed the proposed language and by consensus decided that the new paragraphs should read: "(7) An ex parte interim order modifying parenting time may be issued postjudgment. (8) No ex parte interim order modifying primary residential responsibility may be issued postjudgment."
A member said the effect of the proposed change would be to allow orders giving a parent extended parenting time on an interim basis when exceptional circumstances exist.
A member commented that giving extended parenting time in a situation where exigent circumstances possibly justify changing primary residential responsibility seemed like a convoluted way of dealing with the issue. The member said that N.D.C.C. § 14-09-06.6 should be addressed at some point to deal with exigent circumstances. A member said that the interplay between the statute and the rule would be discussed at the family law section seminar to see if any legislative recommendations could be developed.
A member suggested that language should be added to the explanatory note making it clear that any motion for modification of primary residential responsibility needed to be made in accordance with N.D.C.C. § 14-09-06.6.
Judge Nelson's motion CARRIED.
The Committee looked at alternative language for proposed changes to Rule 8.2(e)(2)'s affidavit practice provision. Alternative "B" would eliminate the requirement for affiants to be made available for cross-examination while Alternative "C" would require the party opposing the affidavit to give notice of intent to cross-examine the affiant.
A member said many affiants were normal people who become involved in a matter because of their knowledge of facts, not because they are associated with a party. The member said that, under the current system, these people have to take time out of their lives to sit at the courthouse to possibly face cross-examination. A member said usually the affiant's only role to is to be present in compliance with Rule 8.2 (e)(2)--the affiants usually do not get cross-examined.
A member said that attorneys in general favor having the opportunity to cross-examine affiants, but they did not support continuing to require all affiants to show up.
A member asked whether the proposed language indicating that a party who fails to give notice "may" be considered to have waived the right to cross-examination is too flexible. A member replied that there are always exceptional circumstances and the court needs flexibility.
A member asked whether re-direct examination would be allowed of an affiant who is cross-examined. The member said that allowing re-direct consumes substantial amounts of time. A member said some courts set a prescribed amount of time for the hearing and do not allow redirect. A member said that if the cross-examination raises questions for the court, the court can ask additional questions of the witness rather than allowing redirect.
Ms. Ottmar's motion CARRIED.
Mr. Hoy MOVED to amend page 4, line 12, changing "movant" to "moving party." Judge McLees seconded. Motion CARRIED.
The motion to adopt the proposed amendments to Rule 8.2 CARRIED.
By unanimous consent, staff was instructed to amend the explanatory note in conformity with the Committee's amendments.
Judge McCullough MOVED to send the proposed rule amendments immediately to the Supreme Court to be considered with the Annual Rules Package. Judge Herauf seconded. The motion CARRIED.
RULE 12.1, N.D.R.App.P., REMAND AFTER AN INDICATIVE RULING BY THE DISTRICT COURT ON A MOTION FOR RELIEF THAT IS BARRED BY A PENDING APPEAL (PAGES 22-26 OF THE AGENDA MATERIAL)
Staff explained that the proposed new Rule 12.1 was based on the new federal rule, which was adopted on December 1, 2009. New Rule 12.1, which is coordinated with proposed new Civil Rule 62.1, provides a procedure for a party to request an "indicative ruling" on a motion that the district court lacks authority to grant because of a pending appeal.
A member commented that the new proposed rule deals with a situation where a post judgment motion is filed after an appeal. The rule allows the case to be remanded back to the trial court to consider the motion without the appellate court losing its jurisdiction. The rule requires the trial court, prior to remand, to give some indication that the motion is not frivolous and the court might grant it.
A member said that N.D.R.App.P. 4(a)(3)(B) allows the Supreme Court to remand a case back to the trial court for a motion ruling, but it does not require the trial court to give any indication whether the motion might be granted. N.D.R.App.P. 4(a)(3)(B) is also silent on whether the Supreme Court can retain jurisdiction on a remand, which raises concerns about the appeal deadline expiring during the remand period. The member said if the new rule is adopted, N.D.R.App.P. 4(a)(3)(B) should be amended.
A member said N.D.R.App.P. 35(a)(3) also allows the Supreme Court to remand a case, and keep jurisdiction, if an issue has not been tried or determined at the trial level. The member said this rule would likely apply in only a limited range of cases.
The Chair said that the Supreme Court, in general, was interested in having cases disposed of at a lower level and likely would be willing to return cases to the trial court for resolution. The Chair said that the innovation in the proposed rule was that it allowed a party to go to the trial court, while the appeal was pending, and ask the court how it might rule on a proposed post judgment motion before asking the Supreme Court to remand and possibly have the case resolved at the trial court level.
The Chair said at present, once the notice of appeal is filed and the record forwarded to the Supreme Court, the trial court loses jurisdiction to make any further orders. Parties may ask the Supreme Court to remand to resolve an issue and the Supreme Court may retain jurisdiction at its discretion.
A member asked whether the district court judges on the Committee were comfortable with the idea of providing indicative rulings on post judgment motions. A member said that, at present, parties continue to file motions with the trial court after appealing. The member said a rule that would clarify when the trial court had jurisdiction to act on a post judgment motion would be useful.
A member asked why the federal courts chose to adopt the new rule. A member responded that the explanatory note to the federal court rule indicated that the rule was
A member said that there didn't appear to be much difference between current Supreme Court practice and what the new rule would allow. A member said that now, the Supreme Court makes a decision on whether to remand, while under the new rule, the trial court would have to make some kind of decision prior to a remand.
A member suggested that, if the Committee decides the new rule should not be adopted, language should be added to N.D.R.App.P. 4(a)(3)(B) indicating that the Supreme Court retains jurisdiction on a remand.
The motion to adopt new Rule 12.1 FAILED.
RULE 62.1, N.D.R.Civ.P., INDICATIVE RULING ON A MOTION FOR RELIEF THAT IS BARRED BY A PENDING APPEAL (PAGES 27-30 OF THE AGENDA MATERIAL)
Staff explained that proposed new Rule 12.1 is based on the new federal rule, which was adopted on December 1, 2009. New Rule 62.1 is integrated with the parallel proposed new Appellate Rule 12.1.
The proposal to adopt new Rule 62.1 failed for lack of a motion.
By unanimous consent, staff was instructed to research possible modifications to N.D.R.App.P. 4 and 35 regarding the Supreme Court retaining jurisdiction on remand and to bring the rules back to the Committee for consideration.
RULE 55, N.D.R.Civ.P., DEFAULT (PAGES 31-39 OF THE AGENDA MATERIAL)
Staff explained that the Committee approved amendments to Rule 13 at the January 2008 meeting including the deletion and transfer of paragraph (c)(2) to Rule 55. It was proposed that paragraph (c)(2) be moved to Rule 55 since the situation it addresses could only occur in a default judgment case. This transfer is incorporated into the draft before the Committee.
Mr. Hoy MOVED to adopt the proposed amendments to Rule 55. Ms. McLean seconded.
The motion to adopt the proposed amendments to Rule 55 CARRIED.
RULE 13, N.D.R.Civ.P., COUNTERCLAIM AND CROSSCLAIM (PAGES 40-44 OF THE AGENDA MATERIAL)
Staff explained that the proposed amendments to Rule 13 are based on the December 1, 2009, amendments made to the federal rules. The amendment to Rule 13 deletes subdivision (f), which sets out standards for amending pleadings to add a counterclaim. The subdivision is redundant of Rule 15, which sets out standards for amending pleadings in general.
Judge Herauf moved to adopt the proposed amendments to Rule 13. Judge McLees seconded.
A member commented that Rule 13(f) did not seem to be a redundant provision. The member suggested that Rule 13(f) was incorporated into the rules because of the distinction between mandatory counterclaims and permissive counterclaims. The member said that if a compulsory counterclaim is not asserted in the original answer, the counterclaim is considered waived. The member said that Rule 13(f) provided grounds for relief for having omitted a compulsory counterclaim if a party could show oversight, inadvertence or excusable neglect. A member said Rule 13(f) is a savings clause that is needed because compulsory counterclaims do not fall under the liberal pleading standard of Rule 15.
The motion to adopt the proposed amendments to Rule 13 CARRIED.
Judge McCullough MOVED to send the proposed rule amendments immediately to the Supreme Court to be considered with the Annual Rules Package. Judge Herauf seconded. The motion CARRIED.
RULE 707, N.D.R.Ev., ANALYTICAL REPORT ADMISSION; CONFRONTATION (PAGES 45-62 OF THE AGENDA MATERIAL)
Staff explained that the Supreme Court approved Rule 707 subject to comment and the comment period expired on March 1, 2010. Based on comments received, the Court proposed some amendments to its rule and has sent the rule as amended for the Committee to review.
Judge Kleven MOVED to adopt the proposed amendments to Rule 707. Mr. Dunn
A member asked why the "prima facie" language was removed from the rule. Staff said that the change was in response to the comments made to the rule by the bar.
A member said that the main problem with the rule was that it was one-sided. The member said that if, for example, a defendant was charged with DUI and took a blood test and the test indicated a blood alcohol content of .05, by statute the defendant would be presumed not to be under the influence of alcohol. The member said the rule would not help the defense in such a case. If the state wanted to use the analytical report, it would merely need to give notice and, barring a defense objection, it could submit the report in evidence; if the defense wanted to use the report, it would need to call the state toxicologist and lay a foundation. The member said that the same standards should apply when the state or the defense seek to admit an analytical report.
A member said that the reason why the rule provided a method for the state to admit reports and not the defense was because criminal defendants are protected by the confrontation clause while the state is not. The legislature has determined that certified reports are prima facie evidence, while the U.S. Supreme Court has decided that a defendant's confrontation clause rights apply to reports. The member said the rule attempts to implement these principles.
A member replied that the rule, which governs putting a report into evidence, should be even handed. The member said that a report is not prima facie evidence until it is admitted. A member replied that a certified analytical report, offered by a criminal defendant, would be self-authenticating under the Rules of Evidence. The member said the only reason Rule 707 was needed was because a defendant had a confrontation clause right that blocks self-authentication of a report when it is offered as evidence against a defendant.
A member said what is happening now in the courts under Rule 707 is that the government gives notice, defendants file a standard response, and the government is required to produce a witness for cross examination to validate the report. A member said that the state may be required to produce multiple witnesses in some cases, as defense attorneys have argued that everyone involved with filling out the report should be made available for cross examination.
A member said that courts, prosecutors, and defense attorneys are still adjusting to the rule.
The motion to adopt the Court's amendments CARRIED.
On a separate issue, staff explained that the Chair had inquired whether Rule 707 would apply to juvenile matters, specifically, the delinquent offense of driving under the influence. Staff research indicated that the confrontation clause does apply to delinquency proceedings. Staff suggested that the Committee could consider whether any additional amendments would be appropriate for Rule 707 in light of its possible usefulness in some juvenile matters.
A member said the language of the rule as amended by the Committee applied only to criminal trials and not juvenile matters. The member said the rule would need to be further amended to clarify whether it applied to delinquency matters in which juveniles have confrontation clause rights.
A member said that the time lines in the rule would not be a problem in juvenile cases. The member said that if a juvenile case goes to trial, it typically would be continued to allow time for the parties to prepare. A member said that, in practice, the initial appearance takes place within the 30-day juvenile deadline but the trial does not occur at that time unless the parties stipulate. The member said that juvenile trials are expedited in comparison to adult trials, but that time is still allocated for motions and discovery in a contested case.
Mr. Quick MOVED to add "or juvenile delinquency proceeding" on page 46, line 5 after the words "criminal trial." Judge McCullough seconded.
A member said that if the proposed motion is not adopted, analytical reports would be inadmissible in juvenile delinquency proceedings absent foundation testimony under Melendez-Diaz. The member said the change would be beneficial to the state by simplifying admission of analytical reports in juvenile proceedings.
A member said that proposed language in the rule requires the prosecution to serve a copy of the analytical report on the defendant or defendant's attorney. The member said the language did not establish a time frame for service of the report. A member replied that state's attorneys typically send the report to the defendant as soon as it is received from the lab.
Mr. Hoy MOVED to add language "and must also serve a copy of the report on the defendant or the defendant's attorney" to page 46, line 6, after the word "report" and to
A member said that the state would not necessarily have the report itself at the time it gives notice of its intent to introduce the report. The member asked how the state could send out the report if it did not have it. A member replied that if the report was going to be contested, it was important for the defense to have the report in hand 30 days before the trial.
A member said that the state often does not receive the report until shortly before trial, including the day of trial itself. The member said that 30 day report requirement would slow down completion of cases.
The motion CARRIED.
Judge Herauf MOVED to send the Committee's proposed rule amendments to Rule 707 immediately to the Supreme Court as an emergency measure. Judge McLees seconded. The motion CARRIED.
RULE 48, N.D.R.Civ.P., NUMBER OF JURORS; VERDICT (PAGES 63-69 OF THE AGENDA MATERIAL)
Staff explained that the proposed amendments to Rule 48 were based on the December 1, 2009, amendments to the federal rules. The proposed amendments add a provision similar to that in corresponding N.D.R.Crim.P. 31(d) that allows a court to poll the jury individually on its own and requires a poll at a party's request.
Judge Nelson MOVED to adopt the proposed amendments to Rule 48. Ms. McLean seconded.
A member said it was surprising that there was no rule in existence for polling in civil cases. The member said polling is carried out on a regular basis.
The motion to adopt the proposed amendments to Rule 48 CARRIED.
Judge McCullough MOVED to send the proposed rule amendments immediately to the Supreme Court to be considered with the Annual Rules Package. Ms. Ottmar seconded. The motion CARRIED.
Staff explained that the Supreme Court has suggested that Rule 20 be amended to provide a procedure for district court to review a magistrate's decision on the issuance of a domestic violence protection order or a disorderly conduct restraining order.
Mr. Mack MOVED to adopt the proposed amendments to Rule 48. Judge Fontaine seconded.
A member said that this proposal would be a significant change in the rule. The member said allowing a change as suggested in the rule would be a first step to allowing de novo review on everything that magistrates do, which would not be appropriate. The member said that most of the things the magistrates are allowed to do under the rule are preliminary actions. The member said a better approach would be to amend the rule to allow magistrates to only issue temporary orders rather than permanent orders and require district judges to issue any permanent orders that may be required.
A member said that Grand Forks has a situation where it has two attorneys who both act as magistrates and referees, doing all the tasks allowed by the magistrate and referee rules. A member said the situation is similar in Cass County.
A member said that another solution would be to remove language from Rule 20 that allows magistrates to do permanent domestic violence protection and disorderly conduct restraining orders and transfer this language to the referee rule, so that law trained magistrate/referees would be able to continue to enter these orders. A member replied it was preferable to have judges do these orders instead.
A member suggested that a provision could be added to the magistrate rule that allowed matters to be removed to a district judge on request of a party.
A member said if a district did not want the orders of its magistrates to be subject to de novo review, the district could omit the power to enter permanent orders from the magistrate's appointment order. A member replied that districts generally want to give magistrates as broad a grant of power as possible in case it is necessary, at some point after they are appointed, the district needs a magistrate to handle a certain class of case.
The Chair said that the court administrator did a survey of how the districts were using their referees and magistrates, and the rules were amended based on the needs of the districts. The Chair said the rule sections listing duties that may be given to magistrates reflected the
A member said that if a district did not want its magistrates to have all the duties possible under the rule, its presiding judge can choose to grant only specific duties so that magistrates would be limited to temporary orders. A member replied that the only final order a magistrate can hear is a disorderly conduct restraining order, and if inserting a review process into the magistrate rule is not acceptable to the Committee, it would make sense to transfer the power to grant disorderly conduct restraining orders to Administrative Rule 13, the referee rule.
A member said transferring this power would be a good fix because referee orders are already subject to review by rule. The member said the power to grant permanent domestic violence protection orders should also be removed from the magistrate rule.
A member asked about what would happen if a district judge or referee was unavailable and a magistrate needed to take action on a domestic violence protection order. A member replied that a magistrate could grant a temporary order that would be valid for 72 hours.
A member said that many of the magistrates in North Dakota are not law trained. A member said that this is one reason why the authority to grant permanent domestic violence protection orders and disorderly conduct restraining orders should be given to referees rather than magistrates. The member said if this change was made, the referee rule also allows parties to ask for a district judge to hear the matter instead.
By unanimous consent, the rule was tabled until the Committee's Friday session so that staff could prepare revised rule drafts for the Committee to examine.
RULE 12, N.D.R.Juv.P., DISCOVERY (PAGES 88-96 OF THE AGENDA MATERIAL)
Staff explained that Assistant Cass County State's Attorney Kim Hegvik has suggested that Rule 12 be amended to make the language "to the extent not privileged or prohibited by statute, rule, or regulation" applicable to discovery from all parties covered by the rule.
Judge Herauf MOVED to adopt the proposed amendments to Rule 12. Judge Kleven seconded.
A member asked what information would be protected by the language "to the extent not privileged or prohibited by statute, rule, or regulation." A member replied that the identities of the reporters on a child abuse or neglect issue could be protected and the release of drug and alcohol records could be restricted. The member said the distinction between use of privilege in deprivation cases as opposed to delinquency cases was linked to the greater rights possessed by the subject of a delinquency proceeding.
Mr. Quick MOVED to table Rule 12 so that staff could study the background of the rule to determine the rationale for the use of the provision "to the extent not privileged or prohibited by statute, rule, or regulation" in part of the rule. Judge Herauf seconded. Motion CARRIED.
RULE 41, N.D. Sup. Ct. Admin. R., ACCESS TO COURT RECORDS (PAGES 97-153 OF THE AGENDA MATERIAL)
Staff explained that attorney Tom Dickson recently wrote a letter pointing out that records of deferred impositions of sentences resulting in dismissal are not accessible to the public under Rule 41 but that dismissals resulting from any other reason remain accessible. He has requested that this issue be addressed.
The Chair opened the matter for discussion.
A member said that the law creates an unfair result for people who have charges dismissed. The member talked about a letter written by a young woman who had been in an automobile where a large amount of drugs were found. The woman was arrested for possession with intent to distribute. Shortly thereafter, after investigating the woman's story that she had just borrowed the car without knowing the drugs were in it, the state dismissed all charges against the woman. Now, the woman writes that she can't get a job because the charge remains on her record (even though dismissed) and is easily accessible to people researching her background on the court website. The member said that the retention of dismissed criminal charges in court records, especially on the website, causes a severe impact on people's lives.
A member said that back when people had to go to the courthouse to look at court records, no one really cared whether records of dismissed charges were retained. The member said now that criminal records are easily available on the Internet, the retention of
A member said the woman who had written about her situation had included copies of her records as printed off the Internet. The member said that it was hard to tell that the charges against the woman had been dismissed without closely examining the records. The member said that records of dismissed criminal charges displayed on the website should somehow clearly indicate that charges were dismissed or the record should not be displayed at all.
A member said that in another case, a truck driver was arrested on a felony drug possession charge at the border. The driver said, and the state verified, that it was his first trip with the truck and he had no knowledge of the drugs in the truck. The member said the charges were ultimately dismissed, but the record of the charges will now be on display permanently and will likely affect the driver's future ability to keep a commercial license.
A member said the main problem was how dismissed charges were displayed on the website. The member said that sometimes, the state will make five charges against a defendant and dismiss two during plea negotiations. The member said that these dismissed charges should not be hidden, but that it should be clear they were dismissed when the record is displayed.
A member said that, for law enforcement purposes, dismissed charges should not be eliminated from the court record. The member, however, questioned the value of retaining a record of dismissed charges that is available online to the public. The member said that even when it is a clear a charge has been dismissed, the stain remains from the charge.
A member said that the Committee historically had resisted considering rule changes that would allow possible expungement of criminal records. The member said Minnesota had a statute allowing applications for expungement and giving courts discretion to address the issue in appropriate cases by sealing records.
Staff stated that Section 6 of Administrative Rule 41 allows individuals to ask the court to restrict access to a court record. Staff said the court record information that is posted on the web is generated from information input by the clerks, so the clerks would need to be involved if there was any new policy regarding display of records involving dismissed criminal charges.
A member said that if people understood how much information is available to the
A member said that it is a problem when a defendant has to plead guilty to charges that the state wants to dismiss in order to get a deferred imposition, which will be sealed. A member said that easy access to records of dismissed criminal charges not only impacts job searches but also whether a person can find a place to rent. The member said Minnesota has a nice mechanism that allows people to apply to have their records sealed and gives courts discretion to act in appropriate cases.
A member said that Rule 41 allows sealing of records, but that courts had not been willing to grant motions to seal. A member said this was why courts react negatively to these requests, reasoning that it is not fair to single out records to seal.
A member said the computerization of the information was the root of the problem. The member said that dismissed criminal charge records have always been available at the courthouse, but the fact that they can now easily be called up from anywhere creates a lifetime stigma. A member said that the problem extends beyond criminal charges to records in family law cases such as termination of parental rights matters.
A member said the Committee was an appropriate forum to address the issues involving Rule 41. The member said that the Committee had addressed matters such as access to bulk records under the rule. The member said the Committee should address the issue of sealing records itself.
A member said it is unlikely that the legislature would pass a statute allowing automatic sealing of dismissed criminal charges because of the politics of the issue.
A member said one approach that could be used with dismissed criminal charges would be to replace the record with a note, instructing the researcher to see the clerk of court for information about the record. This would allow serious record researchers the opportunity to see the record if they were willing to make the trip to the courthouse.
A member said that work needs to be done in this area beyond just changing the rule. The member said that input from the public is needed to guide the court how to move forward. The member said that a task force could be assembled to meet with the public as has been done in the past when topics needed to be addressed.
A member said a simple place to start would be having the initial screen listing criminal charges against a person to show which of those charges had been dismissed.
The Chair suggested that she could send a letter to the Chief Justice indicating that the Committee had identified concerns about displaying records of dismissed criminal charges on the web and ask the Chief Justice whether this concern could be referred to an appropriate committee, such as the Court Technology Committee.
A member said sending such a letter would be a good idea. The member said the letter should stress that this is a hot button issue with court administrators, the clerks of court, and the public. The member said people were being subjected to unfair consequences due to easy availability of information about dismissed criminal charges on the web.
A member said a related issue was the problem of people with common names. The member said that, because of the Committee and the Court's concern with privacy, information needed to establish the actual identity of a person with a common name, such as address or birth date, is not available on the web.
The Chair pointed out that the Court had amended the rules to allow more personal identifying information to be posted. The Chair said that it is a balancing act between privacy and the public's need for information.
The Chair said she would send a letter to the Chief Justice. In addition, by unanimous consent, staff was instructed to perform additional research into the Minnesota expungement rule and into the current North Dakota statutes and rules on sealing records.
Staff explained that State Court Administrator Sally Holewa has proposed two amendments to Rule 41, Section 5(b): restricting access to domestic violence protection order and disorderly conduct restraining order cases when the initial petition is dismissed on its face; and restricting access to cases brought under N.D.C.C. ch. 14-15.1, Child Relinquishment to Identified Adoptive Parents.
A member said the suggested amendments pointed out problems with the way Rule 41 has been dealt with since it was adopted. The member said that the rule just grows without any overarching analysis to guide it. The member said that there should be some serious analysis of what the court wants to do with the rule, rather than using a band aid approach to fix problems.
A member asked what harm the proposed amendment limiting access to dismissed domestic violence and disorderly conduct cases was designed to address. Members said there could be very harmful information directed at the respondent in the petition, and if a petition is so without merit to be dismissed on its face, references to this information should not be made public.
A member said that such petitions are often not even filed and would not be accessible to the public in the first place. A member said all petitions are supposed to be filed, but when they come in at the last minute and are taken directly to the first available judge, they sometimes are not filed. A member said that some counties have a policy to enter an order on every petition, even when summarily denied. A member said this policy eliminates judge shopping by parties, who might come back and try with a different judge if rejected the first time.
A member asked why orders on petitions rejected on their face should be restricted when orders on petitions rejected after a hearing are public. The member said rejected petitions should all be treated the same.
A member wondered why voluntary child relinquishment cases are not already protected under the adoption statutes. A member said that the voluntary cases are covered by a different chapter of the code, adoption proceedings are under N.D.C.C. ch. 14-15 while voluntary relinquishment is under N.D.C.C. ch. 14-15.1
The motion to adopt the proposed amendments to Rule 41 CARRIED.
The meeting recessed at 5:00 p.m. on September 23, 2010.
September 24, 2010 - Friday
The meeting was called to order at approximately 9:00 a.m. by Justice Mary Muehlen Maring, Chair.
Staff handed out new proposed amendments to Rule 20 and companion amendments to Rule 13, N.D. Sup. Ct. Admin. R., Judicial Referees. The proposed amendments to Rule 20 would remove magistrate authority to issue permanent disorderly conduct restraining orders and domestic violence protection orders. Under the new amendments, the proposed review procedure would not be part of Rule 20. Proposed amendments to Rule 13 would give referees the authority to issue disorderly conduct restraining orders.
Mr. Quick MOVED to adopt the proposed amendments to Rules 13 and 20. Judge Herauf seconded.
A member asked whether magistrates should be allowed to issue temporary disorderly conduct restraining orders. Several members said it would be a good idea to allow magistrates to issue temporary disorderly conduct restraining orders.
Mr. Mack MOVED to reinstate language in Rule 20 on disorderly conduct restraining orders with the word "temporary" inserted. Judge Nelson seconded.
A member said that magistrates would not automatically get authority to issue temporary disorderly conduct restraining orders if the amendment was approved--this would be subject to a delegation of authority by the presiding judge.
The motion to adopt the proposed amendments to Rules 13 and 20 CARRIED.
RULE 54, N.D.R.Civ.P., JUDGMENT; COSTS (PAGES 154-160 OF THE AGENDA MATERIAL)
Staff explained that Attorney Pat Morley had expressed some concerns about the requirements of Rule 54(b) not being followed correctly in the district courts. Mr. Morley did not provide any proposed amendments to the rule.
The Chair opened the matter for discussion. The Chair said that it is common in matters involving multiple parties for dismissed parties to seek final judgments without obtaining Rule 54(b) certification.
A member said that the Trial Court Operations Committee should look to see what can
A member said that piecemeal appeals were not a problem when defendants are dismissed by settlement because there cannot be an appeal from a settlement. The member said the issue comes up when there is a dismissal under N.D.R.Civ.P. 12 or 56 for one party, but not all. The member said that such an order is interlocutory and subject to a motion for reconsideration before final judgment. The member said if the dismissal or summary judgment is entered as a final judgment, the appeal time begins to run and the opposing party needs to appeal the matter to protect itself. The member said one approach to avoid this problem would be to ask the court to enter an order granting judgment to the dismissed party that will become final upon resolution of the remaining claims. The member said this is not a perfect approach because lawyers and parties want a matter to be final and finished at the point they are dismissed out.
The member said there could be a new subdivision to Rule 54 that provided for entry of a judgment upon a dismissal or summary judgment, with the running of the time for appeal delayed until all claims in the matter had been resolved for all parties.
A member said some language could be added to the explanatory note to indicate appropriate procedure under the rule judgments not involving all parties. The member said the rule is clear that if one party in a multiple party case wants a final judgment, certification under Rule 54(b) is required. A judgment without such certification is ineffective--unless there is a Rule 54(b) certification, a court should wait until all claims as to all parties are resolved before final judgment is entered.
Mr. Boschee MOVED to request staff to draft amendments to Rule 54's explanatory note more fully explaining the Rule 54(b) certification requirement. Judge Kleven seconded.
A member said that language in the explanatory note might be useful, but prudent practice would still dictate an appeal if a party obtains a judgment in a multiple party case--even without Rule 54(b) certification. The member said a better approach would be to clarify in the language of the rule that the time for appeal does not begin to run on a judgment entered in a multiple party case absent Rule 54(b) certification.
A member suggested that an alternative to an appeal would be to make a motion to the court to vacate a judgment entered without Rule 54(b) certification. The member said that improved guidance in the explanatory note could be used to support such a motion.
A member said the problem could be solved through educating judges and clerks who
RULE 32.1, N.D.R.Crim.P., DEFERRED IMPOSITION OF SENTENCE (PAGES 161-169 OF THE AGENDA MATERIAL)
Staff explained that the Supreme Court had asked the Committee to discuss Rule 32.1 and the issue of whether a district court judge should be allowed to issue an order revoking probation after the expiration of 61 days if the State has served a petition for revocation before the 61 days have expired. Staff presented proposed amendments to Rule 32.1 addressing the Court's concerns.
Judge Fontaine MOVED to adopt the proposed amendments to Rule 32.1. Mr. Hoy seconded.
The Chair said there is tension between N.D.C.C. § 12.1-32-07(7) and Rule 32.1 in misdemeanor cases because, under the statute, the court loses jurisdiction on the 61st day.
A member said the intent of Rule 32.1 was to close misdemeanor cases after 61 days. A member replied, however, that there should be consistency between felony and misdemeanor cases and the court should not lose jurisdiction to revoke probation if the state files a petition to revoke within 60 days. The member said that rule's focus on finality could still be retained if the rule provided that a case would be dismissed unless the state filed a revocation petition within 60 days.
A member suggested that the words "if a petition for revocation is filed" after the word "sentence" on page 163, line 9. The member said adding this terminology would allow the court to retain jurisdiction to address a timely filed petition.
A member said that the proposal as presented by staff should be retained. The member said that probation in misdemeanor cases is unsupervised, which is different from felony cases. The member said that automatic dismissal after 60 days has been in place in misdemeanor cases for a considerable time and it works really well.
A member said that the 60 day automatic dismissal does not work in cases where the state files a revocation petition within the 60 day time frame and the court cannot schedule a hearing in time or rule in time. A member replied that it is up to the state in such cases to remind the judge of the deadline and request a ruling before the matter is dismissed.
A member said that the proposed change would make it clear the court has authority to change its order within 60 days--otherwise the matter would be dismissed on the 61st day. The member said it is necessary for the court to be done with the matter before day 61 so that it can be terminated and sealed on that day.
A member confirmed that the rule as amended would require the state to get any revocation petition submitted in time for the court to schedule a hearing and rule on the petition prior to the end of the 60 day period.
The motion to adopt the proposed amendments to Rule 32.1 CARRIED.
Ms. McLean MOVED to instruct staff to draft explanatory note language about the amendments to Rule 32.1. Ms. Ottmar seconded. Motion CARRIED.
RULE 16, N.D.R.Civ.P., PRETRIAL CONFERENCES; SCHEDULING; MANAGEMENT (PAGES 170-178 OF THE AGENDA MATERIAL)
Staff explained that attorney John Petrik had requested that Rule 16 be amended to require a trial date be set at the Rule 16 conference.
Because Mr. Petrik did not request a specific change, the Chair opened the matter for discussion of how the rule might be amended to reflect Mr. Petrik's concerns.
A member said that while the trial date is not always set at the scheduling conference, the parties do draft a scheduling order and discuss when they will be ready for trial. Once the scheduling order is finalized, court staff get conflict dates from the parties and work to determine when a trial date might be possible. The member said that a judge at a scheduling conference might not know what dates were available for trial so it may not be possible to require a trial date to be set at the scheduling conference.
A member said Rule 16 does not mandate what happens at a pretrial or scheduling conference. The rule lists a number of things that may be considered. The member said it would not be appropriate to require that the trial date be set as part of a pretrial conference.
A member said that handing out trial dates months in advance runs counter to case
A member said that when a scheduling order is completed, this triggers action by the clerk to query counsel on when they will be available for trial. The member said the current system has the appropriate features in place to allow trial dates to be set.
The Committee declined to propose any amendments to Rule 16.
RULE 8.5, N.D.R.Ct., DOMESTIC RELATIONS SUMMARY PROCEEDING (PAGES 179-185 OF THE AGENDA MATERIAL)
Staff explained that Judge Gail Hagerty had proposed an amendment to Rule 8.5(a)(2) that would allow people with combined net assets of up to $50,000 to use the domestic relations summary proceeding.
Mr. Mack MOVED to adopt the proposed amendments to Rule 8.5. Ms. Ottmar seconded.
A member said that the summary proceeding is used by many parties. The member said the proceedings meet a need for many people who do not have the resources to divorce by other means. The member said that judges typically need to give substantial assistance to both sides in the summary proceedings.
A member said parties seem to pay no attention to the asset limitation in the rule. A member said the limit is not realistic and is meaningless in most cases. The member said if a party fills out the paperwork and files the action, regardless of their assets, they are effectively proceeding pro se in a divorce action before the court. The member said the court cannot require the party to have an attorney or refuse to allow the party to use the forms.
A member asked whether their was a reason for an asset limit at all in a summary proceeding. A member replied that the asset limit was important because the summary proceeding was a "small claims divorce" and not proper to use when the parties need a business or other significant assets divided. The member said the summary proceedings were not always consent divorces--they could be fully contested.
The motion to adopt the proposed amendments to Rule 8.5 CARRIED.
Staff explained that the Supreme Court has proposed that Rule 7.1(b)(2) be amended to require that any proposed findings of fact and conclusions of law submitted to the district court by a party must also be filed with the clerk of court.
Judge McCullough MOVED to adopt the proposed amendments to Rule 7.1. Judge McLees seconded.
The Chair said that in Snyder v. Snyder, 2010 ND 161, the court had asked the parties to send proposed findings of fact and conclusions of law in electronic form. The parties sent the electronic documents to the judge but they did not file them with the court. The Chair said that when the matter was appealed, the proposed findings and conclusions were not part of the record and the matter had to be remanded for the record to be supplemented.
A member asked how the proposed change would fit in with the court system's move toward paperless filing. A member responded that once the electronic filing system was in place, parties would no longer be e-mailing word processing documents to the judge but would be sending all documents to the clerk through the filing system. The member said having everything go to the clerk first is the best system rather sending items by direct e-mail to the judge.
A member said that N.D.R.Ct. 3.1(e) already requires parties to submit documents to the clerk in order to file the document. The member said that the clerks had been attempting to educate the bar and the public that a document must be submitted to the clerk, rather than the judge, for the document to be filed.
Judge McCullough MOVED to add the words "All proposed findings of fact and conclusions of law must be filed with the clerk" after "allow" on page 187, line 13. Judge Herauf seconded. Motion CARRIED.
The motion to adopt the proposed amendments to Rule 7.1 CARRIED.
Judge Fontaine MOVED to send the proposed rule amendments immediately to the Supreme Court to be considered with the Annual Rules Package. Mr. Quick seconded. The motion CARRIED.
Staff explained that the Supreme Court has requested that a new rule be drafted for district courts to use when planning to conduct an in chambers interview of a child in a custody or visitation case. Staff has prepared a draft rule modeled after guidelines adopted by the Oklahoma Supreme Court.
Ms. Ottmar MOVED to adopt the proposed new Rule 8.13. Ms. McLean seconded.
The Chair said that the new rule was proposed because the Supreme Court is seeing more and more issues involving in camera proceedings in family law cases.
A member said that the rule seems to assume the only reason for an in camera proceeding is to ask the child which parent they want to live with. The member said that sometimes judges meet with children just to find out what is going on and what the child wants to say. The member said it would be inappropriate to limit in camera proceedings to cases where a child's preference was the issue. The member said that talking to children who are not mature enough to give a preference is also useful.
A member said there needed to be flexibility under the rule regarding who would be present at an in camera interview. The member said that lawyers and guardians ad litem may sometimes be present. The member said in camera interviews should be recorded and the parents should be allowed to hear the recordings. The member said that, for mature children, it is sometimes best that they testify in court rather than in an in camera proceeding.
A member questioned subdivision (a) of the proposed rule. The member said the meaning of "preliminary findings" as referred to in the subdivision was nebulous. The member said it was unclear where the court would get the information required to make the preliminary finding required.
A member said that an in chambers interview is generally conducted by stipulation. The member said it would be rare for an in chambers interview to be conducted when one of the parties objected.
A member asked whether subdivision (a) was intended to allow the court to justify through findings, the interview of a child over the objections of one or both of the parents. The member said that nothing in the rules at present allows a court to interview a child without the parents' consent. A member said that often, one parent will request an in chambers interview while the other objects. The member asked whether the rule was
A member said that subdivision (b) of the proposed rule seemed to require the consent of both parents to an in chambers interview.
A member said that one good feature of the proposed rule was in subdivision (e), which allows the district to use its discretion to decide whether to allow the parents access to the interview transcript if the matter is not appealed. The member said there have been cases where reading the transcript or hearing a recording of the in chambers interview severely impacted the relationship between a child and one or both parents.
A member said the point of the rule was to establish procedures for uniform practice across the state. A member said it would be helpful to obtain guidance on best practices for in camera interviews.
Judge Nelson MOVED to delete lines 4-8 on page 195, deleting proposed subdivision (a), and to reletter the remainder of the rule. Judge McLees seconded.
A member said there was no guidance on what the preliminary findings mentioned in the subdivision should be. A member said that deleting the subdivision was appropriate but that the rule should retain some reference to whether the child is of sufficient maturity. A member replied that "sufficient maturity" is only an issue when the child's preference is a question. The member said an in camera interview might be appropriate even if the child is not of "sufficient maturity." The member said that younger children can still provide useful information to the court.
A member said if subdivision (a) is removed, the proposed rule should be retitled to remove "in custody or visitation case" from the title. A member replied that the title should make clear that the rule applies to domestic relations cases because an in chambers interview generally would not be appropriate in a juvenile case.
The motion CARRIED.
A member suggested that the rule should reference court recorders in addition to court reporters. A member said the rule should indicate that the interview is on the record, but that reference to how it is recorded may not be necessary.
Judge Nelson MOVED to replace "court reporter be present" on line 20, page 195, with "record be made" and to change the next sentence to read "If a request for a record is made, the interview must be recorded otherwise the parties waive objection to the issue on
A member confirmed that "be recorded" would include recording by a court reporter or court recorder.
The motion CARRIED.
By unanimous consent, the Committee agreed that any references to "custody" or "visitation" in the rule would be changed, respectively, to "primary residential responsibility" and "parenting time."
Judge McCullough MOVED to change the title to "In Chambers Interview of Child in Domestic Relations Case." Judge Nelson seconded.
A member said that if the rule is being broadened to include interviews of children in cases where residential preference is not an issue, a broader term should also be used in the title. A member replied that the conversation with the child would likely still deal with the issues of primary residential responsibility and parenting time even if preference was not being considered.
The motion CARRIED.
Mr. Plambeck MOVED to amend lines 9-10 on page 195 to read "If the parents consent to an in chambers interview of a child, or otherwise waive their presence, the judge may proceed with an in chambers interview on issues related to primary residential responsibility and parenting time." Ms. Ottmar seconded.
By unanimous consent, the motion language was amended to read: "The judge may proceed with an in chambers interview of a child relating to issues of primary residential responsibility and parenting time if the parents consent or otherwise waive their presence."
A member asked if an "in chambers interview" as the term is used in the rule means an interview where the parents are not present. A member said they could be present in some cases.
A member asked whether there were "domestic relations cases" other than those "relating to issues of primary residential responsibility and parenting time" in which judges had found reasons to interview children in chambers. The member asked if in chambers interviews took place in cases involving domestic violence protection orders or disorderly conduct restraining orders.
By unanimous consent, the motion language was amended to read: "The judge may proceed with an in chambers interview of a child relating to issues of primary residential responsibility or parenting time if the parents consent or otherwise waive their presence."
A member asked how a parent would waive his or her "presence." Members replied that the parent could fail to show up at the proceeding or be kicked out of the proceeding after being disruptive. A member suggested that the motion language be further amended to make it clear that the parent is waiving "consent" to the in chambers interview not "presence" at the interview.
A member suggested that the motion language could be changed to "unless a parent objects." Because an absent parent cannot object, an in chambers interview could go forward if one of the parents failed to show up at the proceeding. A member replied that it would be preferable to have on the record that the parties consented and a party cannot consent unless they show up.
Judge Herauf MOVED a substitute motion to change the motion language to: "The judge may proceed with an in chambers interview of a child relating to issues of primary residential responsibility or parenting time if the parents consent. A party is considered to have consented if the parent is voluntarily absent from the proceeding." Mr. Quick seconded.
Motion to substitute CARRIED.
The motion to amend (as substituted) CARRIED.
A member said that the rule appeared to need more work than the Committee could perform at the meeting. The member said the rule seemed to embody several different concepts. The member said, to start with, that the idea of what an "in chambers interview" constituted was not clear. The member asked whether an in chambers interview could ever include the parents under the rule's language.
A member said the rule already provided that whether counsel can participate in an in chambers interview is within the court's discretion. The member said the Committee could develop introductory language on participation of the parents being within the court's discretion. If the parents were excluded, the next step would be to consider whether counsel
Judge Nelson MOVED to revise the language at page 195, lines 11-18, to refer only to the procedure for determining whether counsel would be present at an in chambers interview. Judge Greenwood seconded.
A member said that many of the members were assuming that an in chambers interview would not include the parents. A member said that, if this is what the Committee wanted the rule to say, it should be made clear in the rule's language. A member said the rule implied that parents would not be present at an in chambers interview.
Judge McLees MOVED to table until next meeting. Judge McCullough seconded.
A member said there needed to be additional consideration of what the Committee's intent for the rule was to be. The member asked whether the Committee wanted to make procedure for an in chambers interview wholly discretionary with the judge or whether consent from both parents would continue to be required for the interview. The member said attorneys are customarily present at in chambers interviews under current procedure. The member said it was not a good idea for the court to be able to interview a child in chambers without counsel present.
A member said the Committee should give staff some direction on which direction the rule should go. Some members said the parents' consent should be required, the parents should not be present at the interview, and the court should use its discretion on whether to allow counsel to be present. Other members, however, said the court should also have discretion to allow the parents to be present at the interview.
A member said an in camera examination should be defined as an examination of a child where the parents are not present, and the rule should apply only to examinations meeting the definition. The member said if the court wanted to conduct some sort of proceeding where the parents were present, this rule would not apply. The member said the rule should only apply when the parents are not there. The member also suggested that one emphasis of the rule is that the proceeding needs to be on the record.
A member asked whether there was a statute or rule that allowed the public to be excluded from a proceeding where children testify. The member asked whether a member of the public could obtain a transcript of an in camera interview with a child. The member said it would not be a good idea to allow public access to in camera interviews. A member added that, in a divorce case of significant public interest, it would be in the best interest of the child to allow the court discretion to restrict public access to child testimony by taking
A member said it should be clear under the rule that when the parents consent to an in camera interview, they are consenting to an interview to which they will not be present.
The motion to table CARRIED.
RULE 41, N.D.R.Crim.P., SEARCH AND SEIZURE (PAGES 215-233 OF THE AGENDA MATERIAL)
Staff explained that amendments dealing with the seizure of electronically stored information were made to Fed.R.Crim.P. 41, effective December 1, 2009. Staff asked the Committee to discuss whether these amendments should be incorporated into the North Dakota rule.
The Chair asked the Committee whether it wanted staff to go forward and draft proposed amendments to Rule 41.
A member said that an appropriate place for the amendments would be under subdivision (c) of the existing rule, with the amendments becoming a new paragraph (c)(4). The member said that new federal language on inventories could be added to subdivision (d)
By unanimous consent, staff was instructed to incorporate federal amendments and return the rule to the Committee for discussion at the next meeting.
RULE 45, N.D.R.Civ.P., SUBPOENA (PAGES 234-249 OF THE AGENDA MATERIAL)
Staff explained that Committee member Larry Boschee had proposed Rule 45(a)(3) be amended to allow a North Dakota district court to issue a subpoena on a letter of request from a tribal court of a federally-recognized tribe.
Mr. Boschee MOVED to adopt the proposed amendments to Rule 45. Mr. Hoy seconded.
A member said that the background for the rule proposal was that, if a witness lives in Pembina and there is a proceeding in Canada where the witness's testimony is wanted, a federal procedure allows the witness to be deposed. Likewise, if there is a lawsuit in Minnesota and the witness is in Fargo, Rule 45 has a procedure that would allow the witness to be deposed in Fargo for the proceeding. The member said, however, if there was a lawsuit on an Indian reservation and the witness lives outside the reservation, there is no provision
A member said that it is difficult to track down people whose testimony is needed in tribal court proceedings because there currently is no mechanism to require the testimony of people from outside the reservation.
A member asked whether any of the tribes in the state have a reciprocal provision allowing reservation residents to be subpoenaed into state court. The consensus of the Committee was that there were no such provisions.
A member asked whether there were any Committees that brought together people from the state and tribal courts that could address the possibility of developing reciprocal provisions for the tribes. A member said that the Committee on Tribal and State Court Affairs handled such matters. A member suggested that the proposed rule change be brought to the attention of the Tribal and State committee to show that the Court is acting to make it easier to subpoena witnesses for tribal court matters.
A member said that the possible misuse of the rule by tribes that were not federally recognized could be a concern.
The motion to adopt the proposed amendments to Rule 45 CARRIED.
RULE 26, N.D.R.Civ.P., GENERAL PROVISIONS GOVERNING DISCOVERY (PAGES 250-300 OF THE AGENDA MATERIAL)
Staff explained that Judge Donovan Foughty had written the Committee to point out, based on his research in a recent case, that the law is not clear in North Dakota on what is and what is not privileged between an attorney and an expert witness who might be called at trial. Staff said that federal rulemakers had addressed this issue with an amendment to Fed.R.Civ.P. 26 set to become effective in December 2010. Staff said that Committee member Larry Boschee had also proposed some changes to Rule 26 related to expert witness work product.
A member said that Mr. Boschee's proposed amendments would expand the topics covered in interrogatories to an expert expected to testify at trial. Under the proposed amendments, a party could inquire about all the topics that would be covered, under the federal rules, in an expert witness disclosure report. The member said this would allow a
A member said this proposal would address the concern raised by Judge Foughty in his memo because it would ensure that "the data or other information considered by the witness" in forming an opinion would be discoverable.
The member said that the pending federal changes addressed this issue in a different way than proposed by Mr. Boschee because the reference to "or other information" would be removed from the federal rule. The member said the pending federal changes would limit the discovery of information provided to an expert by attorneys to facts, data and assumptions.
The Chair said it would be a good idea to wait and see whether the pending amendments are approved by Congress and adopted by the federal courts.
By unanimous consent, staff was instructed to study the final and approved federal amendments to Rule 26 and to bring proposed rule amendments based on the federal amendments to the Committee for discussion at next meeting.
The meeting adjourned at approximately 11:30 a.m., on September 24, 2010.
Michael J. Hagburg