MINUTES OF MEETING
Joint Procedure Committee
January 31-February 1, 2013
TABLE OF CONTENTS
Rule 3.5, N.D.R.Ct., Electronic Filing in the District Courts; Rule 5, N.D.R.Civ.P., Serviceand Filing of Pleadings and Other Papers 2
Rule 5, N.D.R.App.P., Appellate Mediation Program; Rule 8.9, N.D.R.Ct., Roster ofAlternative Dispute Resolution Neutrals 5
Rule 8.2, N.D.R.Ct., Interim Orders in Domestic Relations Cases 10
Rule 8.3, N.D.R.Ct., Case Management (Divorce Cases) 11
Rule 4, N.D.R.Civ.P., Persons Subject to Jurisdiction; Process; Service 12
Rule 43, N.D.R.Civ.P., Evidence; Rule 28, N.D.R.Crim.P., Interpreters; Rule 6.10,N.D.R.Ct., Courtroom Oaths 12
Rule 3.5, N.D.R.Ct., Electronic Filing in the District Courts; Rule 5, N.D.R.Civ.P., Serviceand Filing of Pleadings and Other Papers 15
Rule 11, N.D.R.Crim.P., Pleas 18
Rule 707, N.D.R.Ev., Analytical Report Admission; Confrontation 21
Rule 803, N.D.R.Ev., Hearsay Exceptions; Availability of Declarant Immaterial; Rule 902,N.D.R.Ev., Self Authentication 23
Rule 45, N.D.R.Civ.P., Subpoena 24
Rule 65, N.D.R.Civ.P., Injunctions 25
Rule 68, N.D.R.Civ.P., Offer of Settlement or Confession of Judgment; Tender 26
Rule 13, N.D. Sup. Ct. Admin. R., Judicial Referees 29
Rule 8.1, N.D.R.Ct., Uniform Collaborative Law Rule 30
CALL TO ORDER
The meeting was called to order at 1:00 p.m., on January 31, 2013, by the Chair, Justice Mary Muehlen Maring.
Justice Mary Muehlen Maring, Chair
Honorable John Greenwood
Honorable Steven L. Marquart
Honorable Steven McCullough
Honorable William McLees
Honorable Thomas E. Merrick
Honorable David E. Reich
Mr. Bradley Beehler
Mr. Larry L. Boschee
Mr. Daniel Dunn
Prof. Margaret Moore Jackson
Mr. Lonnie Olson
Ms. Joanne Hager Ottmar (Thursday only)
Mr. Bruce D. Quick (Friday only)
Mr. Kent Reierson
Honorable Laurie Fontaine
Honorable William A. Herauf
Honorable Debbie Kleven
Mr. Robert Hoy
Mr. Richard H. McGee
The Chair discussed the schedule for the meeting and introduced a visitor, Lindsay Harris, the Chair's law clerk.
APPROVAL OF MINUTES
Judge Marquart MOVED to approve the minutes. Judge Reich seconded. The motion to approve the minutes CARRIED.
RULE 3.5, N.D.R.Ct., ELECTRONIC FILING IN THE DISTRICT COURTS; RULE 5,N.D.R.Civ.P., SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS (PAGES303-325 OF THE AGENDA MATERIAL)
Staff reported that the committee discussed N.D. Sup. Ct. Admin. Order 16 on electronic filing at the September meeting and made several suggestions for amendment. The Supreme Court referred the committee's suggestions to the Court Technology
Committee, which made further suggestions. The Court approved amendments to the order, and accepted the committee's proposal that the order be converted into N.D.R.Ct. 3.5, and the new rule took effect January 15.
Staff said that in the interim since the September meeting, the committee had received additional suggestions for amendment of the electronic filing rule and of N.D.R.Civ.P. 5. In particular, attorney Rob Pagel suggested that amendments to Rule 5 were needed to make it clear that service through Odyssey® under Rule 3.5 is adequate service under Rule 5. Staff presented proposed amendments to Rule 3.5 and Rule 5 to the committee.
Judge McCullough MOVED to approve the proposed amendments to Rule 3.5. Ms. Ottmar seconded.
A member asked about the source of the proposed new language on page 305 at line 9. Staff said the language came from Rule 5. A member asked whether "give notice" was an appropriate instruction. The member said that "serve notice" was preferable language. A member suggested that it would also be useful to add language making it clear that notice could be served on a party's attorney, if the party was represented.
Mr. Beehler MOVED to amend the sentence on page 305 at line 9 to read: "A party who files a complaint in a civil case must serve notice of filing on the other parties or their attorneys." Mr. Dunn seconded. Motion CARRIED.
A member pointed out that language on page 307, lines 46-47, will be obsolete once mandatory e-service goes into effect on April 1. A member said that retaining the language could cause confusion, because it suggests that permission is needed to e-serve a document. Staff said that the Court decided to retain the language in its last revision of the rule because consent will continue to be required for e-service until April 1.
Judge McCullough MOVED to delete the language on page 307 at lines 46-47. Mr. Boschee seconded. Motion CARRIED.
A member observed the use of the phrase "after April 1, 2013" throughout the rule. The member said that this terminology would not be needed after the e-filing and e-service requirements went into effect on April 1.
Mr. Boschee MOVED to amend line 6 and 7 on page 305 and line 47 and 54 on page 307 to replace "after" with "effective." Mr. Olson seconded. Motion CARRIED.
Committee members discussed attorney Michael McIntee's suggestion that the
language on page 306, lines 27-28, be amended to discourage last minute e-filing and e-service. The consensus of the committee was that, because an e-served document is treated as if it were mailed on the day it was served with three days being added to any response period, a party or attorney who receives a "last minute" filing is protected from any unfair contraction of the response period.
The motion to adopt the amendments to Rule 3.5 CARRIED.
Ms. Ottmar MOVED to adopt the proposed amendments to Rule 5. Judge Marquart seconded.
The Chair explained that attorney Rod Pagel had suggested that Rule 5 should be amended to make it clear that service through Odyssey® under Rule 3.5 is adequate and appropriate service. The Chair pointed out to the committee that, under its current structure, Rule 5 seems to allow an array of service methods to be used. The Chair said that the rule seemed to need a significant amount of restructuring to clarify that electronic service will be the primary means of service for any document that is filed.
Committee members discussed ways the rule could be restructured. A member said that the proposed reference to Rule 3.5 on page 310-311, lines 42-43, was necessary but only the beginning of the changes that needed to be made to Rule 5(b)(2). A member suggested that the language at page 310, line 28, should be changed to indicate that electronic service is required for any document that is filed, but that all the listed service methods are acceptable for documents that are served but not filed, such as discovery documents.
A member said that a listing of the people excepted from e-service should be added to Rule 5 so that people referring to the rule should not have to look up Rule 3.5 in order to know who may be served by a different method. A member said the language on exceptions should spell out the categories of people excepted: self-represented parties and prisoners. A member said that people who have not been granted access to the Odyssey® system, such as out-of-state attorneys, should also be excepted and allowed to file using the other means in Rule 5.
A member asked what method an attorney would be use when required to serve clients, for example when a change of judge is demanded. The member said that e-service would not be appropriate when serving clients. The member suggested that an exception from e-service be added to the rule for circumstances when a rule or statute requires attorneys to serve their own clients.
A member said that the use of the term "paper" in the rule was likely to cause
confusion once e-service becomes mandatory. The member suggested that the term "document" be used instead and that use of the term "paper" be reserved for situations when service of an actual paper documents is allowed.
A member said that Rule 5(d)(1) on page 311 at lines 57-58 should be amended to include language indicating that documents filed with the clerk must be filed electronically through the Odyssey® system.
A member suggested that the language on page 312, lines 65-66, should be changed to correspond to the committee's amendments of the similar language in Rule 3.5.
By unanimous consent, the committee agreed that the motion to amend Rule 5 should be TABLED until Friday and that staff should be instructed to redraft the proposal to incorporated the suggestions discussed by the committee.
RULE 5, N.D.R.App.P., APPELLATE MEDIATION PROGRAM; RULE 8.9,N.D.R.Ct.,ROSTER OF ALTERNATIVE DISPUTE RESOLUTION NEUTRALS (PAGES 279-302OF THE AGENDA MATERIAL)
Staff explained that the Supreme Court referred Rule 5, Rule 8.9 and the appellate mediation protocol to the committee for review and comment. Staff said the Court wanted the committee to examine the proposals and make comments and suggestions for improvement. Staff said the proposals were developed by the Joint Alternative Dispute Resolution Committee.
Ms. Ottmar MOVED to adopt proposed new Rule 5. Judge Marquart seconded.
Two members of the committee who had worked on the drafting of the Rule 5 appellate mediation proposal explained that the purpose of the new rule was to resolve issues remaining between parties after district court judgments in family law and probate matters. The members said that both family law and probate appeals often involved disputes between family members that were amenable to resolution through mediation.
A member said that the rule allowed cases to be mediated before filing of the notice of appeal. The member said if the case gets settled before the notice of appeal is filed, it is not appellate mediation. The member suggested that perhaps "post trial mediation" would be a better name for the rule.
A member questioned the Rule 5(b) provision that allows mediation to take place on request of one party without prior consent of the opposing party.
Mr. Boschee MOVED to amend the proposal at lines 9-11 on page 281 to require all parties to consent to appellate mediation. Mr. Reierson seconded.
A member said it was unfair to allow mediation to take place over the objections of one party. A member responded that the rule allows a party opposed to mediation to argue for an exemption from mediation. A member said that the possibility of resolution through mediation should not be subject to veto by an intransigent party.
The motion FAILED.
A member questioned whether the rule should extend to probate cases. The member said that probate cases are much more complicated than family law cases, both in terms of the law that applies and the documents and other evidence that forms the basis of the case. The member said that probate cases are more likely to hinge on mixed questions of law and fact rather than on resolvable disputes between individuals.
Judge McCullough MOVED to delete line 8 on page 281 to eliminate the option for mediating cases under the Uniform Probate Code and the Uniform Trust Code. Mr. Reierson seconded.
A member said that, while probate disputes can be complicated, they often flow from disagreements between family members that can be resolved through mediation. A member said that it is appropriate to offer the possibility of mediation in appeals of probate and trust actions.
The motion FAILED.
A member said that the courts have been seeing far fewer contested family court cases since family court mediation has been put in place. The member said the program had been very successful: even if all issues are not decided through mediation, the number of issues the court must deal with is reduced substantially. The member said that adopting an appellate mediation program might bring additional positive results and reduce the workload of the courts.
The motion to recommend approval to the Supreme Court Rule 5 CARRIED.
Judge Marquart MOVED to adopt the proposed amendments to Rule 8.9. Judge McLees seconded.
A member asked whether retired, non-licensed attorneys should be allowed to serve as appellate mediators under Rule 8.9. A member said that retired attorneys are allowed to provide services to legal assistance agencies under some circumstances. A member said that at least two retired judges provide such services.
A member pointed out that the rule requires appellate mediators to take substantial hours of continuing legal education. The member asked why a retired attorneys who wanted to be mediators could not keep up their licenses, given the rule's substantial education requirements. A member said that the retired attorneys would also need malpractice coverage, which the courts could not provide.
A member said that retired attorneys who donate services to legal assistance are required to work under the supervision of licensed attorneys. A member said the licensure requirement should be kept part of the rule.
The motion to recommend approval to the Supreme Court of the amendments to Rule 8.9 CARRIED.
Judge McLees MOVED to recommend approval of Appendix B, the Appellate Mediation Protocol. Judge Marquart seconded.
The Chair said that the committee needed to discuss how appellate mediation should be concluded and what documents the parties will need to submit to the courts.
A member said that, under the protocol, parties would sign a stipulation and ask the court to enter an appropriate order. A member said it was unclear which court this request would be directed, the Supreme Court or the district court. A member said that if the case was mediated and settled before the notice of appeal was filed, the district court would be responsible to issue the "appropriate order."
A member said that if a case is partially settled after the notice of appeal is filed, the Supreme Court could issue an order to the district court directing the appropriate action, such as issuance of an amended judgment.
The Chair suggested that the mediation outcome paragraph needed to be broken down to account for parties who settle before the notice of appeal and parties who settle afterwards, and further for parties who settle all issues and parties who settle only some issues. A member agreed that the procedure needed to be clearer. The Chair also suggested that the mediation outcome statement needs to be made part of a formal court document so that the Supreme Court and the district court can see the details of the agreement, if necessary. The
Chair said that, under the existing protocol, the parties would ask that the appeal be dismissed, an amended judgment would be entered at the district court, and no one would see the agreement.
A member said that if a notice of appeal is filed, the protocol requires a stipulation to later be filed if the matter is resolved. A member said there is no requirement that the stipulation contain the agreement; instead, it needs only to state the issues that have been resolved. A member said it would be simpler if the rule required mediation to be completed in the time window before the notice of appeal is required to be filed. The member said any issues about which court has jurisdiction would then be avoided.
A member said that the ADR committee had discussed having the post-judgment mediation take place before the notice of appeal, but that the committee had objected to there being any suspension of any post-judgment time periods. The committee did not feel there was enough time for mediation, and an appeal if mediation failed, if the time deadlines were not suspended. A member said that some parties use filing a notice of appeal for leverage, and that the filing of the notice of appeal should not eliminate the chance of post-judgment mediation.
A member said there were three scenarios that could arise during post-judgment mediation: all issues could be resolved, some issues could be resolved, or no issues resolved. The member said the most important thing to the Supreme Court would be the remaining issues on appeal. The member said it was not necessary that the matter come back down to the district court immediately after the mediation for entry of an amended judgment, as long as it was clear which issues the parties needed the Supreme Court to address. Alternatively, the member suggested that the Supreme Court could retain jurisdiction while the agreement was sent down to the district court for an amended judgment.
Staff suggested that the committee decide how it would prefer the issue to be handled so that staff could work with the Supreme Court clerk to draft appropriate language for inclusion in the protocol.
A member said that the parties should be required to submit a stipulation to the Supreme Court that lists the issues that have been resolved and the issues that remain. The member said this approach would allow the appellate process to continue without interruption. The member said that the district court could then prepare an amended judgment incorporating the parties' agreement and any additional decisions by the Supreme Court.
A member said the alternative would be to have the parties send any agreement to the
district court, have the district court enter an amended judgment, and have this judgment returned to the Supreme Court, while the Court retained jurisdiction over the matter. The drawback to this approach would be that the district court might have to do a second amended judgment after the Supreme Court decision. On the other hand, the parties would have a judgment in hand if any problems arose involving the issues decided in the mediation.
A member said it would be important for the Court to require the return of the amended judgment within a defined period so as not to delay the appeal. A member said it would also be important for the rule to define that the appeal would continue from the amended judgment.
A member asked what percentage of cases are settled in full under the current pre-judgment family law mediation program. A member responded approximately 70-75 percent. A member responded, therefore, that there would likely be an extremely limited number of cases likely to be subject to post-judgment mediation.
By unanimous consent, the committee instructed staff to work with the Supreme Court clerk to prepare appropriate language for the rule and protocol to address the issue of stipulations and amended judgments to close or partially resolve an appeal.
A member asked about language in the protocol at page 298, line 75, that specifies compensation for appellate mediators. The member suggested that the specific payment amount be deleted and that language indicating that mediators will be compensated at a rate specified by the Supreme Court be substituted. The member said that otherwise, the protocol would need to be amended periodically.
A member said the amount was determined by the ADR committee when it drafted the rule. A member said that the district court mediation rule states that payment will be at an amount established by the Supreme Court. A member said that the appellate protocol should contain similar language.
The Chair pointed out the mediation protocol time lines listed on page 301. A member said that the five day time line for preparing the stipulation on page 301, line 130, seemed too short and that 10 days would be more appropriate.
A member suggested that calling mediation under proposed Rule 5 "post-judgment mediation" rather than "appellate mediation" would be better because parties do not need to be involved in the appeal process to commence mediation under the proposed rule. A member pointed out that parties do have to be within the time frame for filing a notice of appeal to be eligible for mediation under the proposed rule. A member said it would be more
accurate to call Rule 5 mediation "post-judgment mediation" because some parties might think that it is necessary to file an appeal to take part in it.
By unanimous consent, the committee instructed staff to convey the committee's comments on Rule 5, Rule 8.9 and the appellate mediation protocol to the Court.
RULE 8.2, N.D.R.Ct., INTERIM ORDERS IN DOMESTIC RELATIONS CASES(PAGES326-332 OF THE AGENDA MATERIAL)
Staff informed the committee that attorney Michael McIntee had requested that Rule 8.2 be amended to allow parties to be cross-examined at hearings regardless of whether notice has been given on intent to cross-examine. Mr. McIntee said that the rule's notice of cross-examination requirement that makes sense for non-party affiants, who would have no reason to attend the hearing absent notice, but that it does not make sense to apply the requirement to parties who will be at the hearing.
Ms. Ottmar MOVED to approve the proposed amendments to Rule 8.2. Prof. Moore Jackson seconded.
A member asked whether a party can file an affidavit in an interim order case. Members replied that the rule requires evidence to be presented by affidavit.
Mr. Boschee MOVED to amend lines 72-73 on page 330 to replace the proposed amendment with: "A party may always cross-examine an opposing party who has appeared." Judge Merrick seconded.
A member said the proposal would give motivation for a party not to appear. The member said there is no reason not to give a party notice of intent to cross examine as would be done any other witness.
A member suggested that the intended result could be achieved with a small addition to the rule's existing language by requiring notice only to non-party affiants. The member said the notice requirement is important for non-party affiants but not for parties, who are going to be at the hearing.
A member pointed out that the rule allows the court to "otherwise order" evidence to be presented in a form other than an affidavit. The member said affidavits often do not provide much evidence for the court to work with and live testimony from the parties at the hearing needs to be taken.
The motion FAILED.
Judge Reich MOVED to amend the proposal at line 70 on page 330 to read "a non-party affiant" and to delete lines 72-73. Judge McCullough seconded. Motion CARRIED.
The motion to recommend approval to the Supreme Court of the proposed amendments to Rule 8.2 CARRIED.
RULE 8.3, N.D.R.Ct., CASE MANAGEMENT (DIVORCE CASES) (PAGES 333-336 OF THE AGENDA MATERIAL)
Staff informed the committee that attorney Michael McIntee had requested that Rule 8.3 be amended to require the plaintiff to prepare a draft property and debt listing and to provide it to the defendant at least 21 days before the hearing. In the alternative, Mr. McIntee suggested that some mechanism be imposed that would require the parties to work together on the document in the 30 days before the 14 day deadline for submission. Staff presented the committee with a rule proposal based on Mr. McIntee's suggestions.
Judge McLees MOVED to approve the proposed amendments to Rule 8.3. Judge Marquart seconded.
A member said the proposal places all the burden on the plaintiff to prepare the property and debt listing and this is not fair. The member said it is preferable to have the listing prepared jointly and that it is the way it has always been done. The member said that sometimes the parties do not work together and each party submits a separate listing and the court has to figure out which one to use. The member said this is not the best approach, but it is more likely to happen if the proposal is accepted.
A member said that ending up with dueling property and debt listings is common. The member said that some change to the rule to force the parties to work together would be welcome. A member said that the rule already requires the parties to meet together to prepare a joint informational statement and a preliminary property and debt listing.
A member said the parties are unlikely ever to completely agree on the content of a property and debt listing. The member said the important thing is to have something on paper submitted to the court by the 14 day pre-trial deadline. The member said that one district had modified its form scheduling order to remove the trial from the calendar if the joint order is not submitted by the deadline--the member said this provides the parties an incentive to submit the order on time.
A member said the parties in divorce cases are often late filing documents and the only way to make sure deadlines are fulfilled is to order the parties to file by the deadline. A member said the important thing with the property and debt listing is to have something down by the 14-day deadline so the parties know what their respective positions are. The member said otherwise, if the parties do not submit the required documents until trial, the trial turns into a discovery deposition and a waste of time.
A member said the rule already imposes a meeting requirement and firm deadlines and the solution is to enforce these requirements.
The motion to recommend approval to the Supreme Court of the proposed amendments to Rule 8.3 FAILED.
RULE 4, N.D.R.Civ.P., PERSONS SUBJECT TO JURISDICTION; PROCESS;SERVICE(PAGES 30-52 OF THE AGENDA MATERIAL)
Staff reviewed the committee's September discussion of Judge David Nelson's proposal to include the substance of N.D.C.C. § 39-01-11 in Rule 4. Staff presented the committee with proposed amendments to the Rule 4 explanatory note listing and discussing N.D.C.C. § 39-01-11 and other substituted service statutes.
Judge McLees MOVED to approve the proposed amendments to the Rule 4 explanatory note. Judge Marquart seconded.
Members asked whether the proposed list contained all the substituted service statutes. Staff said that the list was not intended to be all-inclusive. The Chair said there might be additional statutes in the probate area that could be included. A member suggested the term "for example" could be included in the note.
Prof. Moore Jackson MOVED to add the words "Examples of" prior to "service" at line 336 on page 46. Judge Marquart seconded. Motion CARRIED.
The motion to recommend approval to the Supreme Court of the proposed amendments CARRIED.
RULE 43, N.D.R.Civ.P., EVIDENCE; RULE 28, N.D.R.Crim.P., INTERPRETERS; RULE6.10, N.D.R.Ct., COURTROOM OATHS (PAGES 108-125 OF THE AGENDAMATERIAL)
Staff reviewed the committee's discussion of N.D.R.Ev 604 (Interpreters) at the April
and September meetings and how the committee had agreed that some of the state's interpreter statutes were outmoded. Staff presented the committee with proposed amendments to N.D.R.Civ.P. 43, N.D.R.Crim.P. 28, and N.D.R.Ct. 6.10 designed to supersede N.D.C.C. §§ 31-01-11 and 31-01-12.
Mr. McCullough MOVED to approve the proposed amendments to Rule 43. Judge Marquart seconded.
A member said that the language on page 110, lines 13-14, allowing fees for interpreters to be taxed as costs raised concerns. The member said that as to disabled people, particularly deaf people, the Americans with Disabilities Act would prohibit taxing interpreter fees as costs. The member said that it is good that the proposed language was the same as the federal language, but that the issue of taxing costs against the disabled needs to be addressed, possibly in the explanatory note.
A member said that at a recent conference, attendees were warned that the federal government views non-accommodation of the inability to speak English as national origin discrimination under Title VI of the Civil Rights Act. The member said that the federal government has been investigating states with inadequate interpreter services in their courts.
A member said that courts probably would never tax a party for interpreter services except under special circumstances such as when a party wanted its own interpreter rather than the interpreter provided by the court. The member said that a court who attempted to tax interpreter fees under normal circumstances could prompt a discrimination complaint or a federal investigation.
A member asked if a prevailing party, who is also a language-impaired party, can tax its interpreter costs against the losing party. A member replied that such taxation possibly may be valid, but the troubling issue is whether the proposed language would allow the court to tax costs that the court itself incurred to retain an interpreter.
A member suggested that the matter be explained in the comment. A member commented that it would be preferable to retain the federal-based language in the rule.
Mr. Boschee MOVED that staff prepare language for the explanatory note to point out the issues involved in taxing interpreter costs when a disabled person is involved in a case and to list some examples of statutes that bear on the issue. Prof. Moore Jackson seconded.
A member asked whether taxation of costs would be legitimate when the interpreter is provided to assist a witness rather than a party. A member replied that the option to tax
costs should be removed from the rule entirely because providing an interpreter when one is needed should simply be a cost of doing business for the courts. A member said that when it is a witness who needs an interpreter, it would be legitimate to tax the cost to the parties unless they were indigent.
A member asked where the money for interpreters comes from. A member replied that, on the criminal side, the courts have an interpreter budget. A member said that on the civil side, parties sometimes hire interpreters on their own as part of the process of gathering facts. The member said that if the party who hires an interpreter prevails, they should be able to recover their costs.
A member said that the proposed language allowing taxation of costs was discretionary. A member said that when costs are taxed in a civil case no discrimination issues are involved, except for taxation against a disabled person. A member said that when an interpreter is not provided by the courts, it raises a federal law access to justice issue that can subject a state court system to investigation and audits. A member replied there is no mechanism for state funding of interpreters in most civil cases. A member said that a person who is involved in a court action and denied an interpreter can make a complaint to the Department of Justice and that the department can investigate to see if access to justice has been denied.
Ms. Ottmar MOVED to table the rule until the April meeting. Judge Marquart seconded. Motion CARRIED.
Judge McLees MOVED to approve the proposed amendments to Rule 28. Prof. Moore Jackson seconded.
The Chair asked why the rule did not mirror the language proposed for Rule 43. Staff said the language in Rule 28 was the same as the federal criminal rule, which also did not mirror the federal civil rule.
A member said that Rule 28 is not the same as Rule 43 because it recognizes that interpreters must be provided by the courts in a criminal case. The member said the language of the civil rule assumes that parties will play some role in paying for their own interpreters.
A member said that the rule language on paying for interpreters indicates that payment will be "by law or as the court directs." The member said that this language could also run afoul of discrimination law. Staff said that the federal rule language said the interpreter
would be paid for by law or by the government, but the committee did not choose to include that language when the rule was last amended.
Mr. Boschee MOVED to table Rule 28 until the April meeting. Judge McCullough seconded. Motion CARRIED.
Judge Marquart MOVED to approve the proposed amendments to Rule 6.10. Judge Reich seconded. Motion CARRIED.
The asked the committee to look at the text of N.D.C.C. § 31-01-11 because the proposed changes to Rule 43 and Rule 28, now tabled, would have superseded this rule. Staff asked the committee whether it wanted to retain any of the language or ideas in the statute in the rules. A member said that courts have some trouble finding interpreters but that no court would ever just subpoena one as allowed by the statute. The consensus of the committee was that the statute's language should not be added to the rules.
The meeting recessed at 4:40 p.m., on January 31, 2013.
April 27, 2012 - Friday
The meeting was called to order at approximately 9:00 a.m., by Justice Mary Muehlen Maring, Chair.
RULE 3.5, N.D.R.Ct., ELECTRONIC FILING IN THE DISTRICT COURTS; RULE 5,N.D.R.Civ.P., SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS (PAGES303-325 OF THE AGENDA MATERIAL)
Staff presented the committee proposed amendments to Rule 5 based on the committee's directions made at the Thursday session.
Judge Marquart MOVED to approve the proposed amendments to Rule 5. Judge McLees seconded.
A member questioned the organization of subdivision (b) of the rule. The member said that one paragraph talks about upon which persons service must be made, then there is discussion of manner of service, and then persons who are exempt, and then more manners of service. The member said that keeping all the persons together and keeping all the manners together would be a better approach.
A member said the listing of exemptions, while referring to persons, was actually a
manner of service section because it stated the manner of service for given types of persons. A member said the proposal contained all the necessary provisions, but the organization of the (b) subdivision was simply muddled.
A member said one solution would be to move the exempt persons paragraph so it followed the attorney service paragraph--then all the people would be together. A member said that instead of moving the exempt persons paragraph up, the attorney service provision should be moved down and the electronic service provision should be the first paragraph of subdivision (b)--then how to serve would be first, and persons to serve next.
Judge Greenwood MOVED to amend the proposal by moving the electronic service provision to the beginning of subdivision (b) and placing the attorney service and exempt from service paragraphs together. Judge McCullough seconded.
A member asked whether the language regarding attempted electronic service was clear. The member suggested that the language should indicate that service is not effective if the document did not reach the person to be served.
By unanimous consent, the pending motion was amended to rephrase the second sentence of (b)(1) as follows: "Service is complete on transmission, but is not effective if the serving party learns through any means that the document did not reach the person to be served."
Mr. Boschee MOVED to amend the pending motion to add the word "electronic" to the beginning of the second sentence of (b)(1). Judge McLees seconded. Motion CARRIED.
The motion, as amended, CARRIED.
The motion to recommend approval to the Supreme Court of the proposed amendments to Rule 5 CARRIED.
Staff explained that the committee had approved amendments to Rule 3.5 at the Thursday session, but then had added further elements to Rule 5 that had not been added to Rule 3.5. Staff said that it had redrafted Rule 3.5 to add the additional elements the committee approved for Rule 5.
Judge McCullough MOVED to approve the proposed amendments to Rule 3.5. Judge Reich seconded.
Judge McCullough MOVED to amend paragraph (e)(2) as follows: "Electronic service of a document is not effective if the party making service learns through any means that the document did not reach the person to be served." Judge McLees seconded.
A member said the proposed amendment would make Rule 3.5 consistent with the committee's amendments to Rule 5.
The motion to recommend approval to the Supreme Court of the proposed amendments to Rule 3.5 CARRIED.
Staff explained that it had prepared a certificate of service form and a notice of filing form to assist parties who file documents electronically. Staff said the proposed certificate of service form was based on the form used by the federal district court.
Mr. Quick MOVED to approve the proposed forms. Judge McCullough seconded.
A member questioned whether the certificate of service form requested enough information from the serving person. The member suggested that a mailing address also be provided.
By unanimous consent, a mailing address was added to the certificate of service form.
A member asked whether the certificate of service form needed a spot for notarization. Staff said that the form was intended for attorneys to use under Rule 5. A member observed that the form was not an affidavit of service and could only be used by attorneys or court staff.
A member asked if Rule 5 should be amended to allow attorney staff, who typically would be doing the actual electronic filing, to use the certificate. A member said that when attorney staff serves a document, an affidavit of service is prepared. A member said that non-attorneys do not have licenses they can lose due to a faulty certificate of service. A member said that when certificates of service could be done as part of the same document, they were more convenient than an affidavit of service. Now, because a separate certificate of service is required when filing and serving through Odyssey®, it is equally convenient to do the affidavit of service.
A member said that when an office only has a single staff person, who is also the single notary, it is not convenient for the staff member to do the affidavit of service. A
member said that the attorney could just sign an certificate of service in such a case. A member said it is important that a non-attorney do an affidavit because there is a penalty if they swear falsely, just as there is a penalty for an attorney (loss of license) if a certificate is improper.
A member said that other jurisdictions have allowed non-attorneys to provide certificates of service supported by an unsworn statement made under penalty of perjury.
A member pointed out that Rule 11 requires mailing address, email address, telephone number and attorney ID number on forms signed by an attorney. By unanimous consent, these items were added to the proposed forms.
Staff said that the Secretary of State had established guidelines for electronic notarization and that wholly electronic notarized forms could be produced under the guidelines.
The motion to recommend approval to the Supreme Court of the proposed forms CARRIED.
Judge McCullough MOVED to send the proposed amendments to Rule 5 and Rule 3.5, and the proposed new forms, to the Supreme Court immediately. Judge McLees seconded. Motion CARRIED.
RULE 11, N.D.R.Crim.P., PLEAS (PAGES 53-107 OF THE AGENDA MATERIAL)
Staff reviewed the committee's actions at the September meeting, when it had addressed proposed amendments to Rule 11 that would require defendants to acknowledge their understanding that an "Alford" guilty plea can be valid even if they do not admit guilt. The committee had tabled the proposal after making multiple amendments. Staff also presented the committee with an alternative proposal that would allow nolo contendere pleas in North Dakota.
Judge McCullough MOVED to remove the proposal from the table. Mr Quick seconded.
Prior to the meeting, a member emailed criminal defense attorneys for their reactions to the proposals. The member said that there was no support for adopting the nolo contendere plea. A member said the state's attorneys had reacted similarly to the proposals. The member said that one question raised about the proposal was on the requirement that the defendant acknowledge the plea was in the defendant's best interests. The member said that
the "best interest" language was not in the case law and that it was an undefinable standard. The member said that "voluntarily, knowingly and understandably" are the requirements that should apply.
Mr. Olson MOVED to amend Rule 11 proposal language on page 56 at lines 40-41 to replace the "defendant's best interest" language with "knowingly and voluntarily made by the defendant." Mr. Boschee seconded.
A member asked whether "intelligently" also needed to be included in the motion language. A member replied that in State v. McKay, the items required were that the plea be knowingly and voluntarily given and that there be a factual basis for the plea. The member said Alford talked about a "voluntarily and intelligent" choice.
By unanimous consent, the motion was amended to add "intelligently."
The motion as amended CARRIED.
A member said that the language requiring that "evidence exists from which it can be concluded" the defendant committed the crime should require that "a trier of fact could conclude" instead. A member replied that such a change would be contrary to the traditional Anders standard under which the defendant would only need to acknowledge the existence of some evidence, not of weighty evidence that could convince a trier of fact. The member said the defendant needed only to agree that there is evidence out there, the defendant does not have to admit there is enough evidence to convict.
A member said that the Anders plea procedure had evolved. First, it was not used at all. Then, after it was accepted, the prosecutor was required to call in witnesses to testify about the evidence against the defendant. Now, there are no witnesses and the prosecutor recites the evidence. The member said that defense attorneys do not like having shortcuts in the procedure, because the end result is that a defendant who maintains innocence is allowed to plead guilty. The member said it is in the defense attorney's best interest that the court make extensive queries about the evidence and about the defendant's understanding of the plea.
Judge McLees MOVED to amend the proposed Rule 11 language on page 56, lines 40-41, to include the language "and evidence exists from which the trier of fact could reasonably conclude the defendant committed the crime." Mr. Quick seconded.
A member wondered whether "factual basis" should be used in the proposed amendment for the sake of consistency within the rule. A member replied that the proposed
language implies that a factual basis exists. A member said that when the court queries a defendant about the existence of a factual basis, the court is trying to determine whether evidence exists from which the trier of fact could conclude the defendant committed a crime.
A member said that with the proposed amendment, only a subtle difference would exist between the "normal" guilty plea during which the defendant is required to acknowledge facts that support the plea, and the Anders plea. The member said that the defendant's acknowledgment that the plea is in the defendant's best interests seems to be the essence of an Anders plea. A member said the key difference is that, even though required to acknowledge facts, the defendant is allowed to maintain innocence.
A member said that the "voluntary" component of the plea is already covered by paragraph (2) of the rule.
A member asked whether the proposed new acknowledgment requirement was going to change anything that judges had been doing in their plea proceedings. A member said many judges also ask defendants these questions. A member said that often, when trying to obtain a factual basis, a defendant will indicate that the prosecution's recitation does not tell how things actually happened. A member said judges have to work with all the material provided during the plea proceeding.
A member said unrepresented defendants are the most difficult situation: they do not want to admit any facts, but they want to get out of jail and go to work. The court can refuse to accept a plea, but the defendant is then likely to be educated while in jail on how to properly respond to the court, and then make a guilty plea the court can accept.
Judge McLees MOVED to amend the proposed Rule 11 language on page 56, line 38, to read: "acknowledges facts exist that support the guilty plea." Mr. Quick seconded. Motion CARRIED.
A member said that the language of paragraph 4(B) had become garbled in the course of amendments and needed some repair.
Judge McCullough MOVED to amend the paragraph 4(B) language on page 56, lines 39-41, to read: "while maintaining innocence, acknowledges that the guilty plea is knowingly, voluntarily and intelligently made by the defendant and that evidence exists from which the trier of fact could reasonably conclude that the defendant committed the crime." Judge McLees seconded. Motion CARRIED.
A member wondered how a defendant could acknowledge that a plea is intelligently made. The member said the defendant could acknowledge the plea was voluntary and knowing, but intelligent is a different matter. A member replied that intelligent relates to the best interest issue. A member said that courts have required that any guilty plea be intelligently made, including Alford.
The motion to approve the amendments to Rule 11 CARRIED.
RULE 707, N.D.R.Ev., ANALYTICAL REPORT ADMISSION; CONFRONTATION (PAGES 126-146 OF THE AGENDA MATERIAL)
Staff explained that the committee had discussed Rule 707 at the April and September meetings. In September, it decided to table the rule to see whether the Supreme Court would provide additional insight on the interpretation of the rule's terms. Staff presented the committee with a summary of the most recent decision in a North Dakota case and proposed amendments to the rule.
Mr. Quick MOVED to approve the proposed amendments. Mr. Dunn seconded.
A member said that the proposed change to the timelines in the rule was unrealistic. The member said that analytical reports will not be back from the state laboratory by 30 days after the initial appearance, the deadline in the proposal. The member said the initial appearance is basically the starting point of the case and 30 days later is too early for analytical reports to be ready. A member said that 100 days is a typical wait time for a drug report.
Judge McCullough MOVED to amend lines 7-8 on page 128 to change the deadline to run from "defendant's arraignment." Mr. Quick seconded.
A member said that in felony cases the arraignment is held in tandem with the preliminary hearing and that when a lab report is at issue, the preliminary hearing is continued until after the lab report is received.
A member said the concerns that led to the proposal to tighten the deadlines stemmed from DUI cases, not felony drug cases. A member said an arraignment in a misdemeanor DUI case would take place after the initial appearance, so having the deadline run from the arraignment would not be a change in these cases. A member said the breath test in a DUI case is done immediately and urine tests are also completed quickly so the 30-day time frame would be adequate in most DUI cases.
A member asked what would happen if the test was not back by the deadline. A member replied that a motion to extend the period would need to be made.
A member said a concern about starting the clock at the arraignment is that most defendants plead not guilty at the initial appearance, so there is no signal to the prosecution to prepare the necessary paperwork stating its intent to introduce the report. A member replied that most larger jurisdictions provide the notice of intent when they provide discovery to the defendant. The defense then files standard paperwork requesting production of a witness to testify on the report. The member said this paperwork is filed regardless of whether the test has come back yet.
The Chair pointed out that the proposed amendments removed language referring to the name and job title of the person requested to testify. The Chair said that not requiring the name or job title might allow defendants too much latitude in requesting a witness.
Prof. Moore Jackson MOVED to amend line 11 of page 128 to add the language: "identify by name or job title." Judge McLees seconded. Motion CARRIED.
Judge McCullough MOVED to add a new subdivision (c) as follows: "The court may extend any of the deadlines contained in this rule on a showing of good cause." Judge McLees seconded.
A member said that the timelines in the rule were short and that the parties should be able to get relief when appropriate.
The Chair pointed out language on page 128, line 9, that gave a deadline for the defendant to object to the report. The Chair asked whether the deadline should run from service of the copy of the report.
Judge McCullough MOVED to amend the language on page 128, line 9, to replace "receiving the" with "service of a." Prof. Moore Jackson seconded. Motion CARRIED.
A member said that the way the process would work under the proposed amendments would be: within 30 days of the arraignment, the state would serve the report on the defendant; the defendant would then have 30 days to make objections and request production of a witness. The member said this all seemed to happen early on in the process, and that
because of the earliness, it seemed more likely that an objection would be made in every case and the state would need to track down and subpoena a witness in every case. The member asked whether this would create more continuances and more witness scheduling conflicts. The member said that many cases plead out as trial approaches, and with the proposed early deadlines, many witnesses would be scheduled to testify and then would no longer be needed.
A member said prosecutors would prefer not to schedule witnesses and send out subpoenas until shortly before trial because they prefer negotiation. The member said the early time lines leave more room for game playing by the defense, and might lead to wasted effort by the prosecution in tying up witnesses for trial. A member said that the previous deadlines were a trap for the unwary prosecutor because they could easily be missed in the run up to trial. The member said that taking care of everything early may be easier with the deadlines tied to the arraignment.
A member said that judges will have to work with the prosecution and defense in granting continuances to account for witness availability if cases go trial. The member said the staff at the state laboratory would be under a lot of pressure to be ready for trials that could end up not taking place.
By unanimous consent, the new subdivision (c) was titled "Extension."
The motion to approve the proposed amendments to Rule 707 CARRIED.
RULE 803, N.D.R.Ev., HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL; RULE 902, N.D.R.EV., SELF AUTHENTICATION (PAGES 147-200 OFTHE AGENDA MATERIAL)
Staff explained that the committee had discussed proposed amendments to Rules 803 and 902 at the September meeting and had a lengthy discussion about what kind of certification is required to be consistent with proposed new provisions in Rule 803(6) and Rule 902(11) and (12). Staff presented the committee proposed amendments to the rules that would require a certificate to be "in the form of an affidavit or an unsworn declaration made under penalty of perjury." Staff informed the committee that the legislature had taken up a bill to allow unsworn certificates made under penalty of perjury and presented the committee a copy of the bill.
Judge McCullough MOVED to remove Rule 803 from the table. Judge Reich seconded.
Judge McCullough MOVED to remove Rule 902 from the table. Mr. Quick seconded.
The Chair explained that the State Bar Association of North Dakota had opposed the unsworn statements bill. The Chair said it had received a do not pass from the judiciary committee. The Chair said that SBAND had maintained that the bill infringed on the authority of the Supreme Court to promulgate rules of evidence. The Chair pointed out that N.D.C.C. ch. 31-14 already allowed unsworn "affidavits" from foreign countries that do not have notaries. SBAND also suggested that unsworn foreign statements should be addressed in the Rule of Evidence.
A member said that it might be advisable to table the rules pending action by the legislature. A member said that if the legislature does approve the pending bill, it might be necessary for the Court to act to supersede it.
A member said that the line between substantive and procedural statutes was not always clear. The member asked whether this issue had been addressed by the Uniform Law Commissioners or the federal rule drafting committees. Staff explained that under the North Dakota Constitution, the Supreme Court had ultimate authority to make procedural rules, while under other systems, such as the federal system, the legislature must approve rules promulgated by the courts.
Mr. Boschee MOVED to table Rules 803 and 902 until the April meeting. Judge Reich seconded. Motion CARRIED.
RULE 45, N.D.R.Civ.P., SUBPOENA (PAGES 201-220 OF THE AGENDA MATERIAL)
Staff explained that the Supreme Court requested the committee to discuss whether metadata language similar to that recently included in Rule 26 should be added to Rule 45. Staff presented the committee with a proposed amendment including metadata language in Rule 45.
Judge Marquart MOVED to approve the proposed amendments. Judge Reich seconded.
A member asked whether there was a program that would scrub documents to allow the basic metadata mentioned by the rule to be preserved but delete the rest.
A member said that with a subpoena, you are dealing with a non-party and it is best with a non-party to tread very lightly in requiring them to take extra measures when producing data. The member said when a non-party is forced to do more than simply produce the requested material, it creates problems. The member said that a party should certainly be required to produce basic metadata if requested, but it is different extracting it
from a non-party.
A member observed that the proposed language tracks language that is already in Rule 26, which applies to discovery among parties. A member replied that the rules should not put burdens on non-parties requested to produce material. The member said, however, that it was not possible to say how heavy a burden producing basic metadata might be.
A member said that providing basic metadata should not be a burden because it is a part of every electronic document. The member said that any burden would be encountered in removing other metadata.
The Chair pointed out that Rule 45 lacks a definition of "electronically stored information" so it is not clear how much, if any, metadata can be obtained through subpoena. A member said this could lead to disputes in court with one side claiming no metadata was discoverable and the other side seeking all metadata. A member said if the proposed language allowing discovery of basic metadata is not added, the rule could be considered ambiguous.
A member said the proposed language attempts to find a middle ground: it states that some metadata is discoverable and requires additional steps if more metadata is to be obtained. A member said most metadata date disputes that have made it to court so far involve one side seeking basic metadata from the other.
A member said there is a cost issue involved and one that would impact non-parties. In order to provide the required metadata and protect other metadata, a subpoenaed person would need to have an expert extract the other metadata from the electronic document before production. A member responded this is better than a "wild west" situation where no one knows what metadata is discoverable under the rule. A member said a non-party could object to production if it turned out to be overly costly to provide the basic metadata.
A member said the proposed language created a "safe harbor" that shows what metadata can be obtained without court involvement.
The motion to approve the proposed amendments to Rule 45 CARRIED.
RULE 65, N.D.R.Civ.P., INJUNCTIONS (PAGES 221-236 OF THE AGENDA MATERIAL)
Staff explained that committee member Larry Boschee had reviewed the extensive rewrite of Rule 65 and had suggestions for amendments to clarify that the rule applies to
permanent injunctions in addition to temporary restraining orders and preliminary injunctions. Staff presented Mr. Boschee's proposed amendments to Rule 65.
Mr. Boschee MOVED to approve the proposed amendments to Rule 65. Judge Reich seconded.
A member explained that the proposed changes would make the rule consistent with the federal rule. The member said the federal rule applies to permanent injunctions as well as temporary restraining orders and preliminary injunctions. The member said that, under the proposal, all types of injunctions must state their terms specifically and define what is being restrained, and all will bind the defined classes of people. The member said that if a trial court follows the rule's procedure for non-permanent injunctions, the proposed amendments allow the court to follow the same procedure for a permanent injunction.
The motion to recommend approval to the Supreme Court of the proposed amendments to Rule 65 CARRIED.
RULE 68, N.D.R.Civ.P., OFFER OF SETTLEMENT OR CONFESSION OF JUDGMENT; TENDER (PAGES 237-278 OF THE AGENDA MATERIAL)
Staff explained that attorney Steven Leibel had requested the committee to consider amendments to Rule 68 that would encourage plaintiffs to make offers of settlement by making it possible for them to receive double costs if the defendant rejects the offer and the plaintiff later obtains a more favorable result at trial. Staff presented the committee with proposed amendments to Rule 68 incorporating Mr. Leibel's suggestions.
Judge McCullough MOVED to approve the proposed amendments to Rule 68. Prof. Moore Jackson seconded.
A member said that the committee should look at the Minnesota approach instead of the New Mexico approach. The member said that the effect of an unaccepted offer, for example, is addressed more clearly under the Minnesota rule and that Minnesota provides more answers to questions that regularly come up in Rule 68 practice, like what is being offered, what is being accepted, what will the effect of non-acceptance be, what costs are recoverable, etc. The member said that Minnesota had done a better job of reducing uncertainty and encouraging settlements under the rule.
A member said that being able to recover double costs could encourage plaintiffs to make Rule 68 offers, which would put pressure on both parties to be reasonable and realistic as soon as possible during the course of negotiations. The member said it would be another
tool that would help the parties to engage in settlement negotiations as early as possible. The member said the Minnesota approach is very specific and has been followed for a long time so it would be useful to look at the Minnesota approach.
A member said that the proposed rule amendment was unnecessary and was not fair to defendants. The member said most civil cases are already settling and more encouragement of settlement is unneeded. The member said it was a rare civil case that made it to trial. The member said that Rule 68 already provided a disincentive for defendants to reject Rule 68 offers, because when an offer is rejected it is mandatory that costs be imposed. The member said there is a distinction between when a plaintiff must pay costs and when a defendant must pay costs: when a defendant must pay costs it is out of pocket and in addition to the judgment, prejudgment interest, post judgment interest, and any bond if an appeal is contemplated. When a plaintiff is required to pay costs, it comes out of the amount the plaintiff collects.
A member said that costs can be substantial in complex cases. The member said the New Mexico Law Review articles pointed out that in products liability, costs are typically in the $200,000-$400,000 range. The member said not all defendants are insured, especially in business litigation, and any cost would come out of the defendant's own wallet. The member said that 120 days after starting the lawsuit is not an adequate time in all cases for a defendant to properly evaluate their exposure. The member said in many cases, it is not until depositions of expert witnesses take place before the defendant can figure out what the real risk is. The member said it is at this point where the bulk of the costs are incurred, and if these costs are doubled it could be quite a sizable amount. The member said that, except for Minnesota and New Mexico, the majority of the states do not take the double cost approach.
A member said that it is best if parties solve their own disputes and give them tools to do this. The member said making a Rule 68 offer now puts pressure on the plaintiff and that it is reasonable to give plaintiffs an incentive to make an early Rule 68 offer to put pressure on the defendant. The member said it makes sense to have both parties facing risk as they evaluate settlement offers.
A member said North Dakota already has a Rule 68 and that plaintiffs are allowed to make offers under the rule. The member said the best approach would be to try to make the rule more clear so its use could be more effective.
A member who practices in both North Dakota and Minnesota commented that the possibility of paying double costs under the Minnesota rule has not affected settlements because defendants know they are going to have to pay costs regardless if they lose.
The Chair asked whether any attorneys who practiced in Minnesota had experience with that state's "damages only" rule provision. A member said the rule has been around for a long time and the practical impact is that attorneys must be careful to use the correct "total obligation" language when they make Rule 68 offers.
A member said on the North Dakota side, parties facing a Rule 68 offer are left having to analyze whether the offer is for damages only or the total obligation because it often is not specified in the offer. The member said the North Dakota approach is very uncertain. A member said that many attorneys make very specific offers in North Dakota. A member said that the party making the response to the offer can ensure that specifics are included.
A member said that the issue of whether the rule could be improved to require more specific offers is not on the table because it is not part of the proposed amendments. The member said this could be a topic for a future meeting.
Prof. Moore Jackson MOVED to have staff prepare amendments to Rule 68 to incorporate more specific provisions regarding the content of offers. Mr. Dunn seconded. Motion CARRIED.
A member said there are some situations, such as when an insured is involved in a dispute with their insurer over an uninsured motorist claim, when the company can bring declaratory judgment action and become the plaintiff. Then the double costs provision would work against the insured and there can be a race to the courthouse to become the plaintiff. The member said this is another reason not to adopt the double costs provision.
A member said there still is cause to be concerned about the unequal treatment between plaintiffs and defendants. A member said it is not necessarily true that defendants unreasonably refuse to settle. A member said plaintiffs sometimes refuse to settle when liability is clear, and can allow costs to accumulate because they know these are recoverable. The member said that one of the main reasons not to allow double costs is because expert fees are included in costs and the rates experts charge can be outlandish.
A member observed that expert fees are not recoverable in federal cases. A member replied that expert fees are recoverable in North Dakota by statute, and the committee does not have the power to nullify the statute. A member said the statute allows recovery of "reasonable" expert fees, it is not carte blanche. The member said the court can disallow excess expert fees.
The motion to approve the proposed amendments to Rule 68 FAILED.
RULE 13, N.D. Sup. Ct. Admin. R., JUDICIAL REFEREES (PAGES 337-353 OF THE AGENDA MATERIAL)
Staff explained that Judge Reich had requested that the committee discuss whether referee proceedings under Rule 13 should be recorded and subject to district court review when the referee is overseeing a small claims court or non-criminal traffic case. Staff presented proposed amendments to Rule 13.
Judge Marquart MOVED to approve the proposed amendments to Rule 13. Judge McLees seconded.
A member said the problem that led to the proposal is the conflict between the rule provisions allowing review and requiring recording of referee proceedings and the fact that small claims court and traffic court are not courts of record.
The Chair said that the rule specifically sets out the duties and authority of a judicial referee and the duties and authority of a referee serving as a magistrate, but neither the small claims or traffic court roles, or the statutory chapters governing these roles, is listed in the rule.
Judge McCullough MOVED to add a reference to N.D.C.C. ch. 27-08.1 on page 340, line 29, and to N.D.C.C. § 39-06.1-03 on page 340, line 35. Mr. Quick seconded. Motion CARRIED.
A member asked whether the purpose of the proposed change was to make the rule consistent with the statutes, which do not make small claims or traffic court of record. The member suggested the rule proposal needed additional amendments to accomplish this.
Judge Marquart MOVED to amend on page 341, line 56, to add language to the clause as follows: "Except in small claims court cases under N.D.C.C. ch. 27-08.1 and in traffic cases under N.D.C.C. § 39-06.1-03, proceedings must be heard on the record." Mr. Beehler seconded. Motion CARRIED.
A member said that if referees are conducting small claims and traffic court proceedings, it is important that the presiding judge's order on referee authority specifically references these.
The motion to recommend approval to the Supreme Court of the proposed amendments to Rule 13 CARRIED.
RULE 8.1, N.D.R.Ct., UNIFORM COLLABORATIVE LAW RULE (PAGES 354-408 OF THE AGENDA MATERIAL)
Staff explained that Judge Gail Hagerty had requested the committee consider adoption of the Uniform Collaborative Law Rule in North Dakota. Staff presented proposed new Rule 8.1 containing the text of the uniform rule to the committee.
Judge McCullough MOVED to table the proposed new rule until the April meeting. Prof. Moore Jackson seconded. Motion CARRIED.
The meeting adjourned at approximately 11:45 a.m. on February 1, 2013.
Michael J. Hagburg