MINUTES OF MEETING
Joint Procedure Committee
April 24-25, 2014
TABLE OF CONTENTS
Technology Update 2
Rule 8.10, N.D.R.Ct., Collaborative Law 4
Rule 513, N.D.R.Ev., Collaborative Law Privilege 9
Rule 13, N.D. Sup. Ct. Admin. R., Judicial Referees 10
Rule 707, N.D.R.Ev., Analytical Report Admission; Confrontation 12
Rule 43, N.D.R.Crim.P., Defendant's Presence 12
Rule 52, N.D. Sup. Ct. Admin. R., Interactive Television 15
Rule 43, N.D.R.Crim.P., Defendant's Presence 19
Rule 8, N.D.R.Crim.P., Joinder of Offenses or Defendants 21
Rule 26, N.D.R.Crim.P., Taking Testimony 22
Rule 33, N.D.R.Crim.P., New Trial 22
Rule 5, N.D.R.Civ.P., Service and Filing of Pleadings and Other Documents 23
Rule 26, N.D.R.Civ.P., General Provisions Governing Discovery 25
Rule 10.1, N.D.R.Ct., Conduct in Court 25
Rule 11.2, N.D.R.Ct., Withdrawal of Attorneys 26
Rule 41, N.D. Sup. Ct. Admin. R., Access to Court Records 27
CALL TO ORDER
The meeting was called to order at 1:00 p.m., on April 24, 2014, by the Chair, Justice Dale Sandstrom. The Chair welcomed new member Carol Larson to the meeting.
Justice Dale Sandstrom, Chair
Honorable Laurie Fontaine
Honorable John Greenwood
Honorable William A. Herauf
Honorable Steven McCullough
Honorable Thomas E. Merrick
Honorable David E. Reich
Mr. Bradley Beehler
Mr. Daniel Dunn
Mr. Robert Hoy
Prof. Margaret Jackson
Ms. Carol Larson
Mr. Lonnie Olson
Mr. Bruce D. Quick
Mr. Kent Reierson
Honorable Jon Jensen
Honorable Steven L. Marquart
Honorable William McLees
Mr. Larry Boschee
Ms. Joanne Hager Ottmar
APPROVAL OF MINUTES
Judge Herauf MOVED to approve the minutes with a change identified by staff. Judge Reich seconded. The motion to approve the minutes CARRIED.
UPDATE ON RULE AMENDMENTS
Staff provided an update on the status of amendments to the Rules of Appellate Procedure, which the committee examined at its September 2013 meeting and which were still pending before the Supreme Court, and to the rules included in the committee's annual petition, which were approved effective March 1, 2014. The Chair said the Supreme Court intended to allow a significant period between the approval date of the appellate rule amendments and the effective date so that all attorneys would have the chance to become aware of the changes.
TECHNOLOGY UPDATE (PAGES 32-33 OF THE AGENDA MATERIAL)
Staff explained new technology developments in providing notice of case events, including court orders, through the Odyssey system. Staff discussed the Odyssey User Group's response to the committee's questions about flagging emergency motions submitted through the Odyssey system. Staff also provided information about the Information
Technology Department's attempts to develop a system to provide automatic notice of service through Odyssey. Staff requested feedback from the committee on what elements should be included in a potential Odyssey generated notice of service.
A member pointed out that Odyssey sends out an individual notification of each separate item that is e-filed, so filing a motion for summary judgment may generate 10 different notifications, one for each component of the motion package. The member said that a notice that summarizes all the related filings would be a better substitute for the current attorney generated notice document. The member said that Odyssey currently generates a summary document in addition to the individual filing notifications that could be the basis of a notice of service document.
A member said that for an Odyssey generated notice of service to comply with the existing rules, it would need to specify the date and time of service and upon whom the document was served. The member said these are the key pieces of data a judge would need to see if a service problem was alleged.
A member asked whom the Odyssey notifications were sent to when there was a law firm with multiple attorneys involved in a case. A member said attorneys sign up individually for the notifications.
A member said that the Odyssey summary document, which can be requested by users, is the electronic equivalent of the notice of service that attorneys would have sent out in the paper days--a document listing the related items that were served at a given time. The Chair commented that using a summary document would be better than filing all the individual document notifications because it would help limit the number of items on the case docket.
A member said the summary documents currently sent out are case specific and list documents e-filed within a given time frame. The member said that the summary documents do not specify whom the e-filed documents were served upon. A member said that the document titles listed on the summary may not be specific enough to make it clear what was filed.
The Chair noted that Odyssey is constantly being adjusted to address user concerns. The Chair said that rejection of e-filed documents by the clerk had sometimes created tension with users, but that rejection was necessary because this was the only means the clerk had to communicate with the user that something was wrong with the document. The Chair said that clerks had now been given the ability to make minor tweaks to filed documents themselves so rejection of documents had been reduced. The Chair said the system was evolving to become more user-friendly.
A member said that if the technological barriers related to having a system-generated notice of service are overcome, the next step should be extending notice of service capability beyond attorney filed documents to court created documents such as orders and judgments.
Commenting on the newly developed system to provide notice of specified case events to users, a member said that it was great that more than 200 attorneys had signed up for the service but it would be useful if all of the state's attorneys could be induced to sign up.
RULE 8.10, N.D.R.Ct., COLLABORATIVE LAW (PAGES 34-60 OF THE AGENDA MATERIAL)
Staff reviewed the committee's previous actions on the proposed collaborative law rule and provided the committee with comments from several individuals familiar with the Minnesota rule on what elements should be included in a collaborative law rule. Staff provided the committee with a new alternative draft of the proposed rule based on the Minnesota comments.
The Chair asked why the rule was needed. Staff explained that it was intended to provide a framework for collaborative law practice in North Dakota for attorneys who decided to pursue. A member explained that collaborative law was a process where all parties and attorneys joined together and shared information to resolve a lawsuit, assisted by other "team" members such as social workers and accountants. A member said if the effort to resolve a matter is not successful the collaborative attorneys are required to withdraw.
A member pointed out that the rule would also require the other "team" members to bow out if the collaborative effort failed and the matter went to litigation; therefore, new expert witnesses would need to be found. Staff explained that the new alternate draft contained language disqualifying attorneys from continuing to represent the parties if the collaborative process concluded without an agreement.
The Chair asked whether anyone could be compelled to participate in the process. Staff said that the proposed alternate draft contained provisions from the uniform rule that would require all parties to agree to the process and would prohibit the court from ordering any party to participate in a collaborative process. Staff said the original draft primarily contained provisions on scheduling that the committee had identified as important at the April 2013 meeting.
A member asked whether the family law section of the bar had reviewed the proposed rule. Staff said the committee had not yet developed a proposal to send to any other committee for review. A member said that family law attorneys practicing collaborative law
in the eastern part of the state had encouraged the committee to look into developing a collaborative law rule.
A member asked about the difference between collaborative law and the more traditional approach of having a settlement conference. Members said collaborative law does not involve a mediator or the court and is a more informal way of coming to a settlement: basically, the parties put all their cards on the table and rely on experts to assist in resolving the issues that are raised. A member said that it sounded like an expensive process that might not be practical in all cases.
A member asked about the advantages of a formal collaborative law rule as opposed to just encouraging collaborative law as an alternative dispute resolution option. Staff said that a rule would provide basic guidelines for parties to work under if they decided to try collaborative law. Staff reported that seven states so far had adopted the uniform act and another eight were considering it.
A member said that another reason to have a rule was to encourage professionals like accountants and counselors to participate in the collaborative process without having to worry about being subpoenaed if there is a trial in a matter--the proposed privilege rule would limit testimony by persons involved in the collaborative process. The member said that lawyers in settlement negotiations are already protected by privilege and the rule proposal would extend this protection to other potential witnesses who get involved in the collaborative process.
A member said that the main issue with collaborative law is the delay that it might cause in resolution of a case. The member said that any idea that encourages settlement is generally worth pursuing but there may need to be language added to the proposal to ensure that cases are resolved in a timely way when the collaborative process is used and to allow the court to have some control over how long the process takes.
A member said that the proposal allows the collaborative process to be used at any time, even before service of a lawsuit.
Judge Reich MOVED to approve the alternate draft of proposed new Rule 8.10. Mr. Quick seconded.
Staff said there was language in the original draft on deferral from scheduling that could be added to the alternate draft to address timeliness concerns. A member observed that the deferral language seems to give judges discretion on how long a case could be delayed due to the collaborative process. A member said that cases involving families, such as
divorce cases, sometimes need to unfold at their own speed because of the emotions involved and that pushing them to be completed within a set schedule is a mistake.
Judge Fontaine MOVED to add language from page 35, lines 1-12, of the meeting materials to the beginning of the alternate draft. Judge Herauf seconded.
By unanimous consent, the language from page 35, lines 6-8, was struck from the motion.
A member said that the committee should consider moving additional language from the original draft relating to other alternative dispute resolution methods. The member said that, if the collaborative process fails, parties should not be forced by other court rules to engage in mediation or other ADR. The member said having the language in the rule would make it clear that the collaborative process is an alternative dispute resolution process.
A member asked the definition of "trained collaborative lawyer," a term used in the motion language that was originally taken from the Minnesota rule. A member said that in Minnesota lawyers have to go through a training program before they can engage in collaborative law practice. A member said this collaborative law training may be unique to Minnesota.
A member asked whether any proposed collaborative law rule developed by the committee could be sent out to other interested groups, such as the family law section, before final action was taken. The Chair said that the committee could decide on whether to seek comments once it had developed a preliminary draft rule or to send the rule to the Court so that it could make a formal referral to another committee.
A member said the draft rule in its current form requires the parties to agree to engage in a collaborative process and then to sign a complicated agreement about the process. The member said that the current draft does not really provide a framework for any process. The member said it would be better for a family law related group to do the drafting on the rule because they have the expertise in this area.
A member said that the draft provides some elements that lawyers seeking to practice collaborative law have requested. The member said lawyers in a collaborative process have to step out of their normal duties as advocates and they need to have guidelines for their role in the process. The member said the lawyers and other professionals who may become involved also need to be protected if the process breaks down and the case continues to court.
Judge Merrick MOVED to amend the motion to delete "trained" from the motion
language. Mr. Hoy seconded. Motion CARRIED.
The motion as amended CARRIED.
Judge Reich MOVED to add the language at lines 13-19 on page 35 to the end of the alternate draft as a new subdivision (g). Judge Herauf seconded. Motion CARRIED.
A member asked about the attorney's status during the collaborative process. The member said it appeared an attorney representing a party in a case in which collaboration was contemplated could either continue representing the party in the process, with the risk of removal if collaboration was unsuccessful, or recommend that the party seek other representation for the process. The member asked, if an attorney chose to recommend a different collaborative counsel, would the original attorney have to avoid contact with their former client during the process? Members suggested the original lawyer would have to stay outside a "firewall" during the collaborative process.
The Chair said the new court-sponsored mediation program had been very successful in resolving cases before trial. A member commented that if people want to engage in a collaborative process to try to resolve a matter they can do so under the existing rules. The member said that the proposed rule seemed to address a problem that did not exist.
A member said that the proposed rule on collaborative law privilege was an important measure to protect attorneys and others if a collaborative process fell apart. A member suggested that the committee could pass the proposed privilege rule by itself without the general rule. A member said that without a rule defining the collaborative process, a stand-alone privilege rule could be abused.
A member asked whether the collaborative process would be considered mediation. A member responded that it was a form of alternative dispute resolution. A member said if it was mediation, N.D.R.Ct. 8.8 could be amended to include collaborative law.
A member said that one of the problems with the current proposal was that there was no training requirement for collaborative lawyers. The member said there was nothing in the rule that would prevent a lawyer straight out of law school from claiming to be a collaborative lawyer and seeking to represent clients in the collaborative process. A member said the proposal definitely needed to be referred to different groups with subject matter expertise in family law and alternative dispute resolution before being passed as a rule.
A member said that lawyers try to settle cases all the time through a variety of methods and most lawyers would rather see cases settled than to go to litigation. A member
said collaborative law was just another option that could be used to seek settlement through a voluntary process that seemed almost like "super mediation." The member said it was a good idea to offer alternatives, as long as successful existing program like court-sponsored family mediation were retained.
A member said a major concern with collaborative law is that it required clients to either risk losing their lawyer (if the collaborative process is unsuccessful) or not being able to consult with their lawyer (if the lawyer recommends outside collaborative counsel). The member said the disruption of the lawyer/client relationship might have negative consequences in other matters outside of the collaborative process. A member pointed out that, under the proposed privilege rule, if a client talked with a lawyer not involved in the collaborative process about the process, the client risked waiving the privilege.
A member said that the lawyer who explained the process to the committee in April 2013 indicated that collaborative law was most useful to parties who had significant assets that needed to be divided fairly with assistance from experts in an informal, non-adversarial, setting. The member said collaborative law may not work or be useful in every case, but it should be available as an option for parties who want to try it. A member said that already, certain lawyers were focusing on the collaborative process and taking clients who were interested from the start in resolving matters through collaborative law.
The Chair suggested that the committee make any changes it thought were necessary to the rule at this time and then the committee could postpone further consideration until the next meeting. The Chair said the committee should discuss what groups to seek additional comments from in the time before the next meeting.
A member asked whether language in the explanatory indicating that the rule was based on the Uniform Collaborative Law Act should be removed based on the many changes the committee had made.
Ms. Larson MOVED to remove language referring to the Uniform Act from the explanatory note. Judge McCullough seconded. Motion CARRIED.
A member said that the Uniform Act has language relating to the qualifications required for collaborative lawyers and defining various areas of law for collaborative law practice. The member said that, because the committee's draft does not contain this language, if the rule went into effect it could conceivably be applied to any area of law including criminal law. A member said it might be useful to import more language from the Uniform Act so that the limits of collaborative law practice would be better defined.
Judge Fontaine MOVED to postpone further consideration of the rule until the September meeting. Judge Herauf seconded.
A member proposed that the drafts be sent to the Family Law Section for comment. The member said that this section should also be asked whether there should be language in the rule limiting collaborative law practice to specific areas of law and whether collaborative law lawyers should be required to have specific training or qualifications.
A member suggested that the proposals be sent to a committee with expertise in lawyer discipline and conflict of interest issues, such as the Joint Committee on Attorney Standards. A member said that the State Bar Association had issued an ethics opinion on collaborative law and concluded that the practice was ethical in North Dakota.
A member said that the Alternative Dispute Resolution Committee should be asked for its opinion because collaborative law is a form of alternate dispute resolution.
The motion to postpone CARRIED.
RULE 513, N.D.R.Ev., COLLABORATIVE LAW PRIVILEGE (PAGES 34-60 OFTHEAGENDA MATERIAL)
Staff explained that the proposed collaborative law privilege rule was drawn from the privilege section of the Uniform Collaborative Law Act.
Judge McCullough MOVED to approve the proposed new Rule 513. Mr. Hoy seconded.
Mr. Olson MOVED amend line 48 on page 39 to replace "felony [or misdemeanor]" with "crime." Judge Merrick seconded.
A member said that juveniles could not be charged with "crimes" and "delinquent act" could be added to the motion language if the committee wanted to include juvenile cases.
A member asked why "crime" would be preferable to the language in the draft. A member explained that there are many technicalities involved in defining what acts constitute felonies or misdemeanors and using crime would simplify interpretation of the rule.
The motion CARRIED.
A member asked whether a civil action stemming from a crime would be included in
the language just approved by the committee. A member said that, because the rule is derived from the uniform rule, there is likely to be documentation explaining the language choice. The Chair pointed out that, under Court precedent, when the state adopts a uniform law or rule, courts can look to other states that have adopted the same rule for guidance on interpretation of the uniform rule.
A member said that the language of the proposed rule refers regularly to "collaborative law communications." The member said there was no definition of the term in the rule. A member said the definition was in the rejected uniform rule, but not in the committee's proposed collaborative law rule.
Judge McCullough MOVED to insert the uniform rule's definition of "collaborative law communication" as a new paragraph (2) after line 4 on page 37. Mr. Beehler seconded. Motion CARRIED.
Professor Jackson MOVED to postpone further consideration of the rule until the September meeting. Judge Fontaine seconded. Motion CARRIED.
RULE 13, N.D. Sup. Ct. Admin. R., JUDICIAL REFEREES (PAGES 60-99 OF THEAGENDA MATERIAL)
Staff said that two alternative drafts containing proposed amendments to Rule 13 had been prepared. Staff said the amendments in the drafts were based on ideas discussed by the committee at the September 2013 meeting. Staff explained that "Alternative A" would eliminate the referee review procedure while "Alternative B" would change the standard of review for the procedure. Staff said that both drafts contained additional amendments proposed by Judge Reich that would give presiding judges the authority to allow referees to appoint emergency guardians.
The Chair said that before Rule 13 was instituted, district judges were required to sign off on all decisions by referees. The Chair said the rule was put in place to limit review of referee decisions to those specifically brought to the attention of the district judge.
A member asked whether, as an alternative to requiring a specific standard of review, the rule could leave it to the discretion of the district judge to decide to apply a de novo or lesser standard of review in a particular case. A member said the main problem is that no transcript is prepared of referee proceedings so the district judge has to listen to a recording of the entire proceeding in order to review it, regardless of what standard of review is applied. The member said that the referee, who actually heard the testimony and saw the witnesses, is in a better position to make a decision than a district judge listening to a
A member said that some referee proceedings run as long as three days and blocking off time to listen to a recording of such a proceeding is a challenge. The member said that, without a transcript, conducting a review of a referee proceeding is very difficult and time-consuming regardless of the standard of review. The Chair said that in most cases that are appealed, the district judge ends up agreeing with the referee. A member said the referees typically act only on cases within a limited area of the law and they have greater expertise in their specific area than most district judges. The member said the best thing about the referee review process was that it gives district judges a little better sense of what the referees are doing.
Staff asked whether it would be workable to limit district judge review to just the written record, rather than to a recording. A member said that in most cases, the recording is the bulk of the record and there is very little written material in the file to review.
Judge McCullough MOVED to approve the proposed amendments to Rule 6 contained in the "Alternative A" draft. Judge Herauf seconded.
A member explained the proposed change relating to emergency guardianship, which was separate from the district judge review issue. The member said that emergency guardianship hearings are held on short notice and are easier to schedule with a referee than a judge. The member said approving the change would assist the court in scheduling these hearings. The Chair asked whether the parties would still get notice before the hearing and be given the opportunity to request a district judge hearing. A member said that notice is issued before the hearings and parties will have a chance to make a judge demand and that the emergency guardianship statute allows the court to remove the guardian at any time so the parties can object and have the guardian removed.
A member said there may be issues that arise involving the interaction of the statutory 5-day deadline for an emergency guardianship hearing to take place and the 7-day deadline to request a district judge hearing.
A member said that Alternative A eliminated district judge review and required people to make an early choice whether they wanted a district judge rather than a referee to hold the hearing. The member asked whether this might cause some parties just to request a judge hearing in all cases, creating more work for district judges. A member responded that the judges don't mind doing live hearings or handling cases; instead they mind doing the lengthy reviews of recordings that are required when a party requests a district judge review after originally consenting to a referee proceeding. The member said that allowing district judge
review gives parties a second bite at the apple and wastes valuable court time.
A member said that the language about when and how a party would be informed of the right to have a district judge hear the case seemed somewhat unclear. Members responded that when the clerk sends out the notice of the initial hearing, the notice will say whether a matter has been assigned to a referee and it will indicate that the party can request it be heard by a judge.
The main motion to recommend the proposed amendments to Rule 13 to the Supreme Court CARRIED 12-3.
RULE 707, N.D.R.Ev., ANALYTICAL REPORT ADMISSION; CONFRONTATION(PAGES 100-108 OF THE AGENDA MATERIAL)
Staff explained that the Supreme Court had adopted most of the committee's proposed amendments to Rule 707, but had chosen to have an extended deadline for service of the analytical report to run from the date set for trial. Staff said some comments indicated that both the deadline decision by the Court and the proposal from the committee were unworkable.
A member said one of the main problems with following the procedure set out in Rule 707 is that it takes at least 75 days to get the analytic report back from the state laboratory. The member said that one approach is simply to file the notice required by Rule 707 as soon as the complaint is filed.
A member said the court will routinely grant extensions of the Rule 707 deadlines when reports are delayed. A member said that the state lab is so backed up that some police have been advised not to send in material for analysis unless it looks like the case is going to trial. On the other hand, a member said some cases cannot be resolved until the analytic report comes back because some judges will not accept a guilty plea in a drug case without a report. A member said that from a defense attorney standpoint, it may not be ethical to allow a client to plead guilty in a drug case without a lab report, especially in a felony case.
RULE 43, N.D.R.Crim.P., DEFENDANT'S PRESENCE (PAGES 109-116 OF THEAGENDA MATERIAL)
Staff explained that Mark Friese had requested that an amendment be made to Rule 43 to allow a represented defendant in a felony case to enter a not guilty plea in writing. Staff said that numerous comments had been made on this proposal and that Judge David Nelson of Williston had made a further proposal to amend Rule 43 to allow a defendant to
be present by telephone if allowed by the court.
Judge Herauf MOVED to approve the proposed amendments to Rule 43. Mr. Quick seconded.
A member said the proposal was not a good idea. The member said that attorneys are generally allowed to appear by telephone, but the defendant is not. The member said a felony is a serious crime and the defendant should be required to appear in court.
A member said the people for and against the proposal seem to be arguing about different things. The member said people who support the proposal seem to support allowing a waiver of the preliminary hearing, while the people who oppose it are against a waiver of the arraignment. The member said there really was no problem with waiving the preliminary hearing, and if there was a genuine hardship for the defendant, the arraignment could be postponed and held in conjunction with the trial.
A member said the general practice was to arraign defendants right after the preliminary hearing. The member said that the main times it was important for a felony defendant to be in the courtroom was if they were going to take the case to trial or plead guilty. The member said there was no problem in allowing the defendant to waive presence at a preliminary hearing or arraignment.
A member said that if a defendant has adequate representation, it is not a problem to allow them to waive presence at the preliminary hearing or arraignment. The member said that, because the quality of representation is not always high, the committee should draft a standard form for use when presence is waived that makes it clear what rights the defendant is giving up.
A member said that some districts have limited participation in preliminary hearings already, and have to issue warrants to compel defendants to show up in court. The member said there should be more defendant participation in hearings, not less. A member said it is important to establish on the record that defendants were advised of all their rights before waiving presence to head off post-conviction relief claims. The member said it is easiest to establish that defendants were advised of their rights when they appear in person before a judge who informs them of their rights.
A member said that it would be very difficult to put all the rights that need to be reviewed on a paper form. The member said there are many factors that need to be discussed at the arraignment stage, such as whether there is a mandatory minimum sentence, that it is much better to have the defendant before the court. The member said that judges have
become very comfortable with allowing attorneys to appear by telephone, but it is advisable to have the defendant physically present in court.
A member said that in Cass County, every felony defendant is required to show up in person for the initial appearance, where they are advised of their rights, and where bail and the preliminary hearing date are set. The member said that requiring the defendant to attend other pre-trial hearings after this appearance is not essential.
A member said that on misdemeanors, where defendants can do everything without appearing in court, there is a problem with defendants not showing up to do jail time and failing to pay fines. The member said just having a defendant appear before the court is an important tool in letting them know the matter is serious. A member agreed that if jail time is given in any case, the defendant should always be required to appear in court, even if Rule 43 allows otherwise.
A member said not requiring defendants to appear in-person at the preliminary hearing would be fine, but an appearance at the arraignment should be required because charges can be amended and the situation in a case can change. A member said that many courts do the preliminary hearing and the arraignment at the same time, and if waiver of appearance was allowed, the waiver form could include information about the charges against the defendant.
A member said that allowing a felony defendant to waive presence, just like allowing waiver in a misdemeanor case, should be discretionary with the judge. The member said some judges will not allow waiver in misdemeanor cases and some require the prosecutor to agree before waiver is allowed. The member said language making waiver subject to the judge's permission should be added to the proposed new language.
Judge McCullough MOVED to amend line 21 on page 112 by adding the words "if the court permits." Judge Herauf seconded.
A member said the proposed new language seemed awkward.
By unanimous consent, the motion was amended to add "a" at the end of the proposed language.
The motion as amended CARRIED.
Judge McCullough MOVED to delete "the court permits" and "to occur in the defendant's absence" on lines 27-28 on page 112. Judge Reich seconded.
A member said that the felony and misdemeanor paragraphs were not parallel. A member said the misdemeanor provision does not fit well with the other paragraphs. Staff said the provision was derived from the federal rule. A member said one problem was that the misdemeanor paragraph had extraneous language defining a misdemeanor.
Judge McCullough MOVED to table the proposal. Professor Jackson seconded. Motion CARRIED.
A member requested that staff redraft the language on page 112, lines 22-32, to make the structure parallel.
RULE 52, N.D. Sup. Ct. Admin. R., INTERACTIVE TELEVISION (PAGES 117-122OFTHE AGENDA MATERIAL)
Staff explained that Judge Nelson had proposed amendments to Rule 52 that would extend the ITV hearing framework of the rule to hearings by telephone. Staff said that additional amendments would further extend Rule 52 to govern hearings by other reliable electronic means that had not yet been identified.
Ms. Larson MOVED to approve the proposed amendments to Rule 52. Mr. Quick seconded.
A member said that many remote jurisdictions were already holdings hearings by telephone.
A member said that the proposed changes related to mental health proceedings might limit the court's ability to use measures that are allowed by statute. The member said doctors were allowed to testify by telephone without obtaining permission from the patient.
A member said including language making the use of electronic means other than ITV in mental health hearings subject to the same limitations as the use of ITV might not be wise. The member said patients are advised about the use of ITV in the summons and may choose to be present in person if they object. The member said, however, that sometimes during the course of a hearing it may be necessary to contact a witness or family member informally by telephone to help resolve an issue. The member said that notice cannot be given about this kind of necessary contact. The member said requiring advance notice of telephone participation would have a negative impact on mental health hearings. The member said the court, attorneys and the patient have been able to work out use of the telephone to allow addition input into hearings, but subjecting such participation to formal rules may be problematic.
A member said that is some areas, the ITV often goes down and participants in a mental health hearing noticed for ITV participate via telephone instead. A member responded that such a change is done by agreement and typically not a problem. A member said if the rule was changed and the summons went out saying the hearing would be held by ITV or other electronic means, this would take care of any problems that might be created by the ITV going down. The member said any problems that might be created by changing the rule could be resolved by changing the mental health form summons to include the other forms of technology. The member said there needs to be some recognition that ITV is not always reliable and that other forms of technology may be used during a hearing with remote participants.
A member said that court forms could be changed to indicate that a given hearing would be held using ITV along with other forms of technology, but this does not address the issue of allowing last-minute witnesses to testify remotely.
Judge Greenwood MOVED to delete the proposed new language one line 51-72 on pages 120-121. Judge Fontaine seconded.
A member said that if the language related to the use of telephone and electronic means technology is retained in the rest of the rule but deleted in the mental health section, this could be interpreted as indicating that such technology is not allowed in mental health proceedings.
A member said that the N.D.R.Civ.P. 43 allowed the use of "contemporaneous transmission" testimony in hearings, so telephone testimony should still be allowed in mental health proceedings regardless of how Rule 52 is amended.
A member said that research needed to be done on whether any statute requires that doctors be allowed to testify remotely in mental health proceedings.
Judge Herauf MOVED to table the rule. Judge Reich seconded. Motion CARRIED.
The meeting recessed at 4:30 p.m. on April 24, 2014.
April 25, 2014 - Friday
The meeting was called to order at approximately 9:00 a.m., by Justice Dale Sandstrom, Chair.
RULE 52, N.D. Sup. Ct. Admin. R., INTERACTIVE TELEVISION (PAGES 117-122 OFTHE AGENDA MATERIAL)
By unanimous consent, Rule 52 was taken off the table and discussion of proposed amendments continued.
Discussion resumed on Judge Greenwood's motion to delete proposed new language in the section of the rule relating to mental health proceedings.
Staff reported on research into the case law related to telephone testimony in mental health cases. Staff said the North Dakota Supreme Court decided in Interest of Gust, 345 N.W.2d 42 (N.D. 1984), that "witnesses in . . . involuntary commitment proceedings under NDCC Ch. 25-03.1 must be present in court to present oral testimony unless all the principal parties, including the respondent, with the court's approval, agree otherwise."
By unanimous consent, Judge Greenwood was allowed to amend his motion to retain the proposed new language at line 51 on page 120 and delete proposed new language at lines 57-72 on pages 120-121.
A member said that the proposed amendment would retain the status quo in mental health cases and not impose a new notice requirement that might make it more difficult to have witness testimony by telephone, which seems to be allowed under N.D.R.Civ.P. 43. The member said that the proposed new language in the rule could make what is now an informal process too formal and impair resolution of mental health matters.
A member said a party would still be able to object in person to having witness testimony by telephone in a mental health proceeding under N.D.R.Civ.P. 43. The member said if the objection was sustained, this would create a problem because the witness would then be unavailable and not able to testify. The member said it seemed to make sense to require prior notice of witnesses as would be required by the proposed new language in Rule 52 because objections could then be resolved in advance. The member said that requiring advance notice would also be useful to let people involved in the proceeding know who is expected to testify.
A member said one of the main purposes of the ITV rule was to allow doctors to testify remotely. A member said that there didn't seem to be any harm in amending the rule to require notice of possible witnesses who might testify by other forms of remote communication, given that N.D.R.Civ.P. 43 seems to provide a way for last minute witnesses to testify by telephone. A member said the notice provision is a problem because there is generally no way to know in advance who all the witnesses who might need to testify
remotely. A member said that proposed amendments do not seem to require that all potential witnesses to be identified; rather, they would require that notice to be given that electronic means will be used for the hearing and for witness testimony. A member said that the parties then have the right to object to having witnesses testify remotely rather from the courtroom.
A member said that currently, doctor witnesses currently fill out a form called "Notice of Appearance by ITV" so that the court knows they will be appearing and how to contact them and so that the parties can object. The member said this form could be adapted if the rule amendments were adopted.
The Chair said the proposed language about "other reliable electronic means" was designed to include future technology. The Chair said "interactive television" could have a broader definition beyond the existing dedicated network and could include video communication over the Internet. The Chair said "interactive television" may become an obsolete term if applied only to dedicated networks because future technology may create other forms of video communication that could be used for testimony.
A member said that substitution of the term "contemporaneous transmission" from N.D.R.Civ.P. 43 might address some of the issues that the current proposed language may create. Staff said that N.D.R.Crim.P. 4.1 used "reliable electronic means" and this was the model for the proposed new language. A member said that the phrase "contemporaneous transmission" seemed to embrace "reliable electronic means."
The motion FAILED.
Judge Herauf MOVED to substitute "contemporaneous transmission by reliable electronic means" for "interactive television, telephone or other reliable electronic means" throughout the rule. Judge Merrick seconded. Motion CARRIED.
A member said the title of the rule would need to be changed.
Mr. Quick MOVED to change the title of the rule to "Contemporaneous Transmission by Reliable Electronic Means." Judge Herauf seconded. Motion CARRIED.
The Chair asked if the explanatory needed to be amended to reflect the changes.
Judge McCullough MOVED to amend the explanatory note to include the language: "This rule was amended to extend to proceedings conducted by interactive television, telephone, or other reliable electronic means." Judge Greenwood seconded. Motion CARRIED.
A member asked how some of the requirements of the rule, such as providing for electronic transmission of documents, would be carried out if a method other than ITV was used for a hearing. A member said this would still work--a fax machine could be used, for example. A member said it may be more of an issue with a last minute witness testifying by telephone--if it is known that a witness is going to testify, they can be given any documents beforehand. A member said that the rule provides the opportunity to object to a witness appearing by electronic means, and a matter can be rescheduled so the witness can appear in person or view documents prior to remote testimony.
A member wondered whether adding telephone testimony to this rule would impact proceedings held under N.D.R.Civ.P. 43. The member said Rule 43 requires the parties to give notice of an intent to testify by electronic means, while this rule requires the court to give notice that electronic means will be used. A member replied that notice by the court is only required in mental health hearings. A member said that the issue of whether remote testimony by electronic means can be used comes up all the time, usually when a witness who was planning to testify in person is delayed or otherwise prevented from appearing. The member said that a party may attempt to block electronic means testimony by such a witness. A member said that N.D.R.Civ.P. 43 allows remote testimony when good cause exists and Section 3 of Rule 52 generally allows remote testimony in civil cases.
A member said that language in Section 4 of Rule 52 on criminal cases requires the court to make a finding of necessity when an attorney wants to appear from a separate site. The member asked how courts are handling the finding of necessity and whether the requirement for a finding should be changed. A member said that not all judges make this finding on the record, but it has never been an issue. A member said that the court can ask the attorney to explain the reason their participation from a separate site is necessary and put this on the record. The Chair said more and more jails are being located separately from courthouses and participation by lawyers from a separate location than their clients may increase.
The main motion to recommend the proposed amendments to Rule 52 to the Supreme Court CARRIED.
RULE 43, N.D.R.Crim.P., DEFENDANT'S PRESENCE (PAGES 109-116 OF THEAGENDA MATERIAL)
By unanimous consent, Rule 43 was taken off the table and discussion of proposed amendments continued.
By unanimous consent, Judge McCullough withdrew his motion.
Judge McCullough MOVED to amend Rule 43(b) on page 112 as follows:
"(b) When not required.
A If the court permits, a defendant need
not be present under any
of the following circumstances:
(1) Felony Offense. The offense is punishable by imprisonment for more than one year, and with a represented defendant's written consent, entry of a not guilty plea and the preliminary hearing occur in the defendant's absence.
(1) (2) Misdemeanor Offense. The offense is punishable by fine
or by imprisonment for not
more than one year, or both, and with the defendant's written consent, the court
arraignment, plea, trial, and or sentencing to occur in
the defendant's absence."
Judge Reich seconded.
A member asked why infractions were not mentioned in the rule given that they met the definition in the misdemeanor paragraph.
Ms. Larson MOVED to amend to the motion to add "may" before "occur" in both the felony and misdemeanor paragraphs. Mr. Quick seconded. Motion CARRIED.
Motion as amended CARRIED.
Judge Merrick MOVED to insert "or Infraction" after "Misdemeanor" in the title of the misdemeanor paragraph. Mr. Hoy seconded. Motion CARRIED.
Judge McCullough MOVED to amend line 9 on page 111 to replace "interactive television, telephone or other" with "contemporaneous transmission by." Judge Herauf seconded. Motion CARRIED.
Judge McCullough MOVED to amend line 69 on page 114 to add "interactive television," after the word "by." Professor Jackson seconded. Motion CARRIED.
A member said that, under the proposed amendment, the language at lines 8-10 on page 111 could be read in a sweeping manner, allowing defendants to be considered "present" in court when they are in other states or countries. A member said there should be some language indicating that a person can be "present" only when the court authorizes presence by electronic means.
Judge Fontaine MOVED to amend line 8 on page 111 to add "permitted" after the word "presence." Ms. Larson seconded.
Staff said the cross-reference to N.D. Sup. Ct. Admin. R. 52 in the explanatory note was intended to make clear that Rule 52's standards on permission apply to presence by electronic means under Rule 43. A member said that the proposed amendment to line 8 would further clarify that a person can be present by electronic means only when permitted by the court.
The motion CARRIED.
The main motion to recommend the proposed amendments to Rule 43 to the Supreme Court CARRIED.
RULE 8, N.D.R.Crim.P., JOINDER OF OFFENSES OR DEFENDANTS (PAGES123-126OF THE AGENDA MATERIAL)
Staff explained that Judge Racek had proposed amendments to Rule 8 that would require charges against a single defendant to be consolidated in a single charging document
prior to filing.
A member said that the system proposed by the rule amendments is similar to the system used in Fargo. The member said the system does not work perfectly, especially in drug cases commenced with a uniform citation. The member said the system is great when it works because it significantly cuts down on paperwork. The member said a rule change may not be a workable way to install this system in other jurisdictions across the state.
A member said that prosecutors agree that cases flow more smoothly when everything is consolidated at the start. The member, however, said that an officer making an arrest in the middle of the night might not see all the charges that should be made. The member said it would be impractical to require all charges to be consolidated before a case is filed, especially in counties with part-time state's attorneys.
A member said that state's attorneys try to keep charges against a single defendant together as often as possible, but it should not be mandatory. A member said that as technology is developed, it may be possible to resolve the problem of multiple charging documents through some system of flagging related case files.
By unanimous consent, the committee decided to take no action on the proposal.
RULE 26, N.D.R.Crim.P., TAKING TESTIMONY (PAGES 127-145 OF THE AGENDAMATERIAL)
Staff explained the Chief Justice had asked the committee to discuss the possibility of requiring a colloquy if a criminal defendant decides to waive the right to testify. Staff presented proposed amendments to Rule 26 that would institute a colloquy requirement.
Prof. Jackson MOVED to approve the proposed amendments to Rule 26. Ms. Larson seconded.
The Chair said the Court has seen a number of post-conviction cases in which defendants have argued that their lawyer did not adequately advise them about the consequences of waiving the right to testify.
A member said that some attorneys handle the issue by making a record outside of the presence of the jury that they have consulted with their client about whether to testify. The member said that requiring a colloquy might be unwise because it could cause defendants to question the decision made in consultation with their attorney.
A member said that if a colloquy was required, every judge would handle it differently: some cursorily, some in great depth. The member said the different approaches could open the possibilities of problems in some cases. A member said most judges already were catching the issue and making sure it was addressed on the record by defense counsel.
A member said requiring a colloquy seemed to be contrary to the defendant's constitutional right to remain silent--the judge would be bound by rule to make the defendant speak on the issue.
The main motion to recommend the proposed amendments to Rule 26 to the Supreme Court FAILED.
RULE 33, N.D.R.Crim.P., NEW TRIAL (PAGES 146-162 OF THE AGENDAMATERIAL)
Staff explained that attorney Amy Schutt had proposed amendments to Rule 33 that would specifically add "weight of the evidence" as a ground for requesting a new trial in a criminal case.
Mr. Hoy MOVED to approve the proposed amendments to Rule 33. Mr. Quick seconded.
Judge McCullough MOVED to delete the proposed new language at lines 38-41 at pages 149-150 in the explanatory note. Judge Reich seconded.
A member said the motion would delete a quote from a case. The member said that people needed to do their own research in making a new trial motion, having a reference to a specific case might lead people to think that was the key case. A member said that clarity in the language of the rule itself should be the priority.
The motion CARRIED.
A member said that there was no need for the proposed amendment. The member said the existing language of the rule, allowing a new trial "if the interest of justice so requires" was broad enough. The member said that by the time a new trial motion is made, the defendant would have had ample opportunity to argue for dismissal and to question the sufficiency of the evidence. The member said the "interest of justice" provides a sufficient standard for granting a new trial.
A member asked what other grounds beyond the weight of the evidence could cause a new trial to be granted in the "interest of justice." Staff said that different jurisdictions handle the process in different ways; Arizona, for example, provides a specific list of factors that can be the basis for a new trial motion.
A member said that the proposed amendment did not seem to address an actual problem. The member said there was no clear need to change the rule. A member said that the proposed amendment would not change the law but instead would encourage defendants making new trial motions to develop the weight of evidence issue at the trial court level. The member said if the trial court does not analyze and decide the weight of evidence argument, the Supreme Court must dismiss any appeal argument on this issue.
The main motion to recommend the proposed amendments to Rule 33 to the Supreme Court FAILED 7-6.
RULE 5, N.D.R.Civ.P., SERVICE AND FILING OF PLEADINGS AND OTHERDOCUMENTS (PAGES 163-176 OF THE AGENDA MATERIAL)
Staff said that members of the committee had discussed Minn.R.Civ.P. 5.04 at the September meeting and requested staff to draft proposed rule amendments that would incorporate the Minnesota Rule deadline for filing after service into Rule 5.
Mr. Quick MOVED to approve the proposed amendments to Rule 5. Judge Reich seconded.
A member said there was no need for the proposed amendment. The member said that attorneys and parties had been proceeding along in cases that had been served but not filed for many years and it should be up to the parties involved when to file a case.
Mr. Reierson MOVED to amend at lines 97-98 on page 168 to change "with prejudice" to "without prejudice." Judge McCullough seconded.
A member said there are reasons why a party might sue out a case and let it sit. The member said the danger of the rule would be that a case could be dismissed and refiling then barred by a statute of limitation. A member said many cases are served shortly before the statute of limitation expires so that the issues can be preserved and the parties can try to resolve the matter.
A member said that sometimes a matter is left to sit by an attorney rather than the parties. The member said that the solution to this is making a demand to file under Rule 5. A member said that non-filing is generally not in an issue in a case where both parties are represented by attorneys. The member said that problems arise more often when an unrepresented party is sued by a represented party like a collection agency, who lets the case hang over the unrepresented party's head. The member said it is reasonable to require a party who has sued out a matter to file it and let the court get involved if a year goes by without resolution.
A member said that some cases simply do not need to be filed, such as those in which a party obtains a confession of judgment. A member said if a case is not filed because a debtor has agreed to a payment plan, the debtor credit rating can be preserved.
A member said cases filed after sitting out for longer periods of time are more difficult to resolve. The member said a need to do discovery is often the reason for a case to be filed after sitting out for years. The member said discovery is made more difficult with the passage of time.
By unanimous consent, "without prejudice" was substituted at line 209 on page 174 of the explanatory note.
The main motion to recommend the proposed amendments to Rule 5 to the Supreme
RULE 26, N.D.R.Civ.P., GENERAL PROVISIONS GOVERNING DISCOVERY(PAGES177-194 OF THE AGENDA MATERIAL)
Staff explained that Judge McCullough had proposed amendments to Rule 26 that would remove the requirement that "sealed" material be placed in an envelope. Staff presented Judge McCullough's proposal along with an additional proposal that the rule's languages are clarified to specify that an attorney's e-mail addresses for service are included in discovery materials.
Judge McCullough MOVED to approve the proposed amendments to Rule 26. Judge Herauf seconded.
A member asked how a person filing a document electronically would designate the document as "sealed." A member said there was a check box on the Odyssey filing screen that could be activated if sealing of a specific document was required. The Chair said that within the system there were many different levels of sealing that prevent users without sufficient authorization from getting into given documents. A member said that the clerks are aware of what items should typically be sealed and work with judges to get sealing orders if the attorneys have not requested sealing.
A member said that the request for the amendment came about in a case involving out-of-state attorneys who had put assembled sealed documents by following the rule, which created complications when filing was attempted.
The main motion to recommend the proposed amendments to Rule 26 to the Supreme Court CARRIED.
RULE 10.1, N.D.R.Ct., CONDUCT IN COURT (PAGES 194-205 OF THE AGENDAMATERIAL)
Staff explained the Cameras in the Courtroom Commission had requested that updated limitations on recording of court proceedings be added to Rule 10.1.
Mr. Quick MOVED to approve the proposed amendments to Rule 10.1. Judge Herauf seconded.
The Chair said witness security was one reason why limitations on the use of electronic recording devices needed to be updated. The Chair said that technological
progress had led to the development of very small recording devices and the integration of video cameras into many phones.
The main motion to recommend the proposed amendments to Rule 10.1 to the Supreme Court CARRIED.
RULE 11.2, N.D.R.Ct., WITHDRAWAL OF ATTORNEYS (PAGES 206-209 OF THEAGENDA MATERIAL)
Staff said that committee members during discussions at the September 2013 meeting had requested staff to prepare amendments to Rule 11.2 that would address cases where notice could not be delivered to a client by an attorney seeking to withdraw.
Mr. Reierson MOVED to approve the proposed amendments to Rule 11.2. Professor Jackson seconded.
A member said that when attorneys are seeking to withdraw and they cannot provide notice because their clients have disappeared, this situation is usually explained in their motion to withdraw and not in a separate affidavit as would be required by the proposed amendment. The member said the affidavit required in the proposed amendment would just be a duplicate of what the attorney would have had to explain in the motion.
A member said that the rule currently seems to have an absolute requirement that notice be given to the client before withdrawal is possible. The member said that some firms go as far as to do notice by publication when seeking to withdraw in order to satisfy the rule's requirements. The member said that filing an affidavit would be a much easier solution.
A member said that the rule has an enhanced notice requirement for a motion to withdraw above and beyond that of a routine motion. The member said that mailing to the last known address is not enough when there is a notice to withdraw. The member said the proposed amendment would make it easier for a judge to let a lawyer out of a case when the client disappears.
A member said it seemed likely that the problem of disappearing clients will grow as more and more transient workers in the energy sector move in and out of the court system.
A member said that the proposed affidavit requirement was something additional an attorney would need to do if a client disappears, but it is not an onerous requirement. The member said it is not too much to ask of an attorney seeking to withdraw to articulate under oath the efforts they have made to contact their client.
The main motion to recommend the proposed amendments to Rule 11.2 to the Supreme Court CARRIED.
RULE 41, N.D. Sup. Ct. Admin. R., ACCESS TO COURT RECORDS (PAGES210-225OF THE AGENDA MATERIAL)
Staff explained that Court Administrator Sally Holewa had requested that Rule 41 be amended to specify that the restriction on access to domestic violence protection order and disorderly conduct restraining order cases be limited to cases in which the initial petition was dismissed summarily by the court without a contested hearing.
Judge Merrick MOVED to approve the proposed amendments to Rule 41. Judge Herauf seconded.
A member said that courts often face the problem of people trying to obtain the underlying documents from restraining orders that have been summarily denied. The member said it is important to make it clear that when a restraining order is summarily denied it is not open to public access.
A member said an issue with the language of Section 5 (b)(6) is that it refers to cases when the other parts of the rule refer to files. A member said it might make sense to amend the language to be parallel with the rest of the rule.
Judge McCullough MOVED to amend at line 174 on page 219 to add the words "documents in" before "domestic." Professor Jackson seconded. Motion CARRIED.
A member said that language in the proposed amendment referring to "contested" hearings was appropriate given that a hearing where one party does not show up might not be considered to have been contested. A member said if a hearing is scheduled, a party does not show up, and the court takes action, this would be a contested hearing and it would not fall under the proposed amendments.
Judge McCullough MOVED to amend at line 276 on page 224 in the explanatory note to add "documents in" before "domestic." Professor Jackson seconded. Motion CARRIED.
The main motion to recommend the proposed amendments to Rule 41 to the Supreme Court CARRIED.
The meeting adjourned at approximately 11:30 p.m. on April 25, 2014.
Michael J. Hagburg