MINUTES OF MEETING
Joint Procedure Committee
May 21-22, 2009
TABLE OF CONTENTS
Rule 5, N.D.R.Crim.P., Initial Appearance Before the Magistrate
Rule 43, N.D.R.Crim.P., Defendant's Presence 10
Proposed Rules of Juvenile Procedure 11
Rule 1.1, N.D.R.Ct., Scope; Rule 4.2, N.D.R.Ct., Notice to Interested Parties 22
Rule 20, N.D. Sup. Ct. Admin. R., Magistrates Qualifications, Authority, Education and Procedures 22
Rule 35, N.D.R.Crim.P., Correcting or Reducing a Sentence 23
Rule 8.12, N.D.R.Ct., Right to Counsel Termination of Parental Rights 24
Rule 3.4, N.D.R.Ct., Privacy Protection for Filings Made with the Court; Rule 41, N.D. Sup. Ct. Admin. R., Access to Court Records 28
Parenting Plan Rule Cleanup 44
CALL TO ORDER
The meeting was called to order at 1:00 p.m., on May 21, 2009, by the Chair, Justice Mary Muehlen Maring.
Justice Mary Muehlen Maring, Chair
Honorable M. Richard Geiger
Honorable William McLees
Honorable David W. Nelson
Honorable David E. Reich
Honorable Allan L. Schmalenberger
Honorable Thomas J. Schneider (Thursday only)
Mr. Larry L. Boschee
Mr. Daniel Dunn
Mr. Robert Hoy (Friday only)
Mr. Galen J. Mack
Mr. Richard H. McGee
Ms. Joanne Hager Ottmar
Mr. Steven W. Plambeck
Mr. Bruce D. Quick
Mr. Kent Reierson (Thursday Only)
Honorable Georgia Dawson
Honorable John Greenwood
Honorable Debbie Kleven
Assistant Dean Jeanne L. McLean
The Chair discussed the schedule for the meeting and reviewed the schedule for future meetings.
APPROVAL OF MINUTES
Ms. Ottmar MOVED to approve the minutes. Judge Geiger seconded. Motion CARRIED unanimously.
RULE 5, N.D.R.Crim.P., INITIAL APPEARANCE BEFORE THE MAGISTRATE (PAGES 36-63 OF THE AGENDA MATERIAL)
The Chair welcomed Mr. Ladd Erickson, McLean County State's Attorney, to explain newly passed legislation on the uniform complaint and summons and the legislation's potential impact on criminal procedure in North Dakota.
Mr. Erickson said that the State's Attorneys Association sought cost saving and increased efficiency in developing the statutory amendments. The three components of HB 1280 reflect these factors: eliminating speeding ticket appeals, renaming "fleeing on foot" so that it would not be confused with vehicular fleeing, and reworking the uniform complaint and summons, more popularly known as the uniform traffic citation.
Mr. Erickson said the State's Attorneys concluded that the existing uniform citation statutes were unconstitutional because the statutes claimed that the court rules did not apply to uniform citations. The State's Attorneys contacted the Chief Justice to coordinate with
the judicial branch on rule changes consistent with the planned statutory changes, and they provided drafts of the statutory changes. The Committee reviewed these drafts at its January 2009 meeting.
Mr. Erickson indicated that the statutory changes have now been passed by the legislature. Mr. Erickson also said that he had reviewed the minutes of the Committee's discussion of the changes and he observed that the Committee has focused on "worst case" scenarios in its discussion. Mr. Erickson told the Committee that the State's Attorneys also recognize these "worst case" possibilities.
Mr. Erickson admitted that some people do end up in jail without expedient bond hearings, and others go to court to find there is no complaint in the file. Mr. Erickson said that State's Attorneys and the counties were working to resolve these problems, including developing a uniform computer system for criminal complaints.
Mr. Erickson said that, when a long form complaint is necessary, law enforcement and prosecutors are required to do a substantial amount of work in gathering information and drafting documents. He said that, in some counties, if the defendant is brought in on a variety of charges, the defendant may have to have two initial appearances before the court: one on a uniform traffic citation and a later appearance on a long form complaint. Mr. Erickson said it was wasteful to have two court hearings and two court files in such a case.
Mr. Erickson said that bond hearings were another issue. He said that, prior to a bond hearing, law enforcement, the prosecutor and the defendant all need to communicate and coordinate to be prepared for the hearing. Mr. Erickson said that the Highway Patrol was using a computer system that has increased efficiency in preparing for bond hearings and that prosecutors were also developing a computerized system. Mr. Erickson said the systems were designed to cut out administrative delays in bond hearings.
Mr. Erickson said that the statutory amendments were designed to increase efficiency in handling defendants. He said that effective January 1, 2010, uniform citations can be used for all misdemeanors and the Rules of Criminal Procedure will apply. He said, however, that judges will need to start holding probable cause hearings and prosecutors will have to prepare long form complaints on offenses such as driving under the influence, driving without insurance, and driving under suspension if Rule 5 is not modified to reflect the amended statutes on uniform citations.
Mr. Erickson distributed a proposed amendment to Rule 5. The amendment would add a new subdivision to the rule:
(e) Uniform Citations. Notwithstanding Rule 5(a), a uniform citation may be
used in lieu of a complaint and appearance before a magistrate, whether an arrest is made or not, for an offense that occurs in an officer's presence or for a motor vehicle or game and fish offense. When a uniform citation is issued for a felony offense, other than a felony proscribed in the motor vehicle title, the prosecuting attorney shall also subsequently file a complaint that complies with subsection (a), and in any circumstance where an individual is held in custody they must be brought before a magistrate for an initial appearance without unnecessary delay.
Mr. Erickson said that, under the proposed amendment, if a misdemeanor offense occurs in an officer's presence, the officer can issue a citation. He said a long form complaint or probable cause hearing would not be required in such a case when a citation was issued. He said that probably 95 percent of the cases in which a citation would be issued for a non-traffic offense misdemeanor would involve possession of drug paraphernalia or a minor in possession of alcohol. He said that in such cases, the defense is generally constructive possession and that this sort of defense could not be pulled out of a law enforcement affidavit by a prosecutor but would need to be presented by defense counsel. For this reason, he said, using a citation to charge the individual would be cost-effective and save the law enforcement and court resources that otherwise would be expended in preparing affidavits and long form complaints.
Mr. Erickson said that, under the proposed amendment to Rule 5, prosecutors would still need to do long form complaints on felonies outside of N.D.C.C. tit. 39. He said that the felony defendants would come to a preliminary examination and be charged in an information. He reminded the Committee that law enforcement officers can arrest persons accused of a felony and hold them for up to 48 hours under existing law. He said that the language of the proposed amendment was designed to ensure that if a person was brought in on a felony charge under a citation, a long form complaint would be prepared and the probable cause process would begin immediately.
A member asked how the process of handling a defendant brought in on a citation would occur. The member asked, for example, what would happen if a person was stopped on a traffic offense and the officer found a huge bag of drugs in the car. The member said this likely could be charged as felony drug possession with intent to deliver. The member asked whether the charging process would be started out with a traffic citation and another citation for the drugs.
Mr. Erickson said an officer initially could put both the traffic and drug offense on a citation, but that under law and under the language of the proposed amendment, a probable cause hearing and a long form complaint would be required for the drug offense. Mr.
Erickson said the officer could also just arrest the defendant for the drugs. He said that regardless of whether the officer used a citation or just arrested the defendant, there would need to be a probable cause hearing. Mr. Erickson said the charging document would be the initial complaint, not the citation.
A member said the statute referred to the citation as a "uniform complaint and summons." The member said the summons did not set the bond. The member asked if what was being contemplated under the statutory language and the rule text was that the officer would issue a summons telling the defendant to appear at a certain date.
Mr. Erickson said that the officer could do a cite and release, a court date would be set on the summons part of the citation. He said if the person was taken into custody, there would be a bond schedule and the person could bond out. He said if the person could not bond out under the schedule, a bond hearing would take place.
A member said the uniform citation statute seemed only to give authority for officers to do a cite and release. The member said the statute did not mention a bond schedule. The member said that there is a statute that authorizes a bond schedule for traffic offenses, but not for other offenses. The member said there are only very limited situations where bond could be set by schedule.
Mr. Erickson said that the judicial districts have put together bond schedules of their own. He said that if a defendant cannot post bond according to the schedule, the defendant will get an initial appearance and bond can be considered at that time.
A member said a probable cause determination must be made on a warrantless misdemeanor arrest within 48 hours. Mr. Erickson responded that, under the proposed amendment to Rule 5, the probable cause determination would not be necessary if a person was arrested under a uniform citation and was not in custody. A member said, as a practical matter, current practice is that if an arrested person does not post bond under whatever bail schedule is in place, there is a probable cause hearing within 48 hours.
A member said the statutory form for the uniform complaint and summons contained a promise to appear but did not mention bond. Mr. Erickson said that for misdemeanor offenses, a person arrested under a uniform complaint would be released if the person could make bond under the bond schedule. A member said that, depending on the district where the arrest took place, the bond schedules covered most misdemeanor offenses.
A member said if a person is arrested under a citation containing both misdemeanor and felony charges, the person would not be able to post bond because there is no bond
schedule for felony offenses. Mr. Erickson said that under the proposed amendment, a long form complaint would have to be prepared and a bond hearing held before the person would be allowed to bond out.
A member said that N.D.C.C. § 29-08-02 only authorizes delegation of bail authority in the case of traffic violations. The member said a bond schedule that includes offenses other than traffic offenses is not a valid bond schedule. A member replied that an argument could be made that if a bond schedule is approved by the district court, the schedule is not a delegation of bond authority but the establishment of a preset bond amount for a given offense. A member asked how a court could preset a bond on someone they had never seen.
Mr. Erickson said that the bond schedule benefits the defendant, it does not benefit the state. He said a defendant does not have to sit in jail at all if he or she can meet the bond amount set by the schedule. A member replied that the statute does not authorize this.
A member said that the bond schedules that are currently in use provide a dollar amount to bond out for a given offense. The member said if the courts are dissatisfied with this, they could change the bond schedule to provide that only a summons to appear is needed for a given offense. The member said that if a person is taken into custody, there needs to be either a bond schedule or the opportunity for an appearance in court so no one is left sitting in jail.
Mr. Erickson said that if the Committee was concerned about the use of bond schedules when people are arrested under uniform citations, the Committee could deal with that through N.D.R.Crim.P. 46, the bail rule. He said that the amendments to the uniform citation statutes were written so that the Rules of Criminal Procedure would apply to the handling of citations.
A member said it was unlikely that any defense attorney would argue to the court that a client should not be released immediately under the bond schedule. A member replied that the appropriate alternative was to release the defendant with a summons to appear and to hold a bond hearing as part of the appearance.
Mr. Erickson said if the summons and bond hearing approach is taken, then amendment of the uniform citation statutes would have been futile because defendants would end up making multiple appearances, which is an inefficiency the amendments were designed to deal with.
A member said the statutory amendments greatly expanded the scope of the uniform citation statute, including allowing the citations to be used for felonies. A member said some
courts had already been working to resolve inefficiencies in the system through means such as arrest affidavits, a form that an arresting officer signs under oath that contains all the information needed when there is an arrest. The member said that this form gives the court the information it needs to make a probable cause determination and it gives the state's attorney basic information to use in drafting a long form complaint. The member said that, with this information in hand, only one appearance by the defendant is needed.
Mr. Erickson said that while the statutory amendments allow the uniform citation to be used for felonies, the proposed amendment to Rule 5 would limit such use. He said that getting paperwork done timely on charging documents was a concern. A member said the arrest affidavit must be completed immediately after the arrest and eliminates the problem of delayed paperwork.
A member said that one solution currently being used when people are not able to bail out on the bond schedule (or get a bond hearing within 48 hours) is to kick them out of jail after 47 hours, avoiding the 48 hour deadline. A member said that the arrest affidavit approach might help avoid this outcome because state's attorneys would have all the necessary information in hand to finish their probable cause paperwork. A member said the rule could be amended to provide that if a probable cause determination is not completed within 48 hours, the defendant would be released with a summons to return for a bond hearing.
Mr. Erickson said that the proposed amendment to the rule did not change the requirement that a probable cause determination be made within 48 hours.
Staff reviewed the actions the Committee took relevant to Rule 5 and the amendments to the uniform citation statutes at its last meeting. Staff also discussed the Committee's suggestion that a standard term be used throughout the rules such as "complaint" or "information" for the charging document in a criminal case.
Judge McLees MOVED that the Committee recommend amendment of Rule 5 consistent with the proposal submitted by Mr. Erickson. Judge Nelson seconded.
A member said that the terms "complaint" and "information" came from the bifurcated county and district court system that formerly existed in the state. A complaint would be brought before the county court judge and when a defendant was bound over on a felony to district court, the complaint was redrafted as a criminal information. The member said the main functional difference between an information and a complaint was that witnesses needed to be listed on the information.
By unanimous consent, the term "uniform complaint and summons" was substituted for "uniform citation" in the proposed amendment.
A member suggested that the explanatory note indicate that the "uniform complaint and summons" is also called a "uniform citation." The member suggested that the N.D.C.C. sections referring to the uniform complaint and summons be referenced in the explanatory note. By unanimous consent, staff was instructed to include these references in the explanatory note.
A member said if there is a warrantless arrest, an ex parte probable cause determination must be made within 48 hours. The member said the language of the proposed amendment seemed to gloss over this requirement. Mr. Erickson said under current practice, many warrantless arrests are made without probable cause determinations, especially DUI arrests. A member said that most arrested persons bond out and that the probable cause determination only becomes an issue if the person is detained. A member said that if an arrest affidavit was obtained, doing a probable cause determination would be simplified.
A member said that the terminology "uniform complaint and summons" seemed to indicate that persons arrested would be allowed to be released without posting bond. The member said that a summons instructs a person to report back on a given date. A member said it seems the statute intended to allow release with a summons to report, rather than an arrest, when the "uniform complaint" is used. The member said that the "uniform summons and complaint" or "uniform citation" was being used as an arrest document.
A member said the last line of the proposed amendment seemed to address the concerns being raised about warrantless arrests, requiring that "in any circumstance where an individual is held in custody they must be brought before a magistrate for an initial appearance without unnecessary delay." The member said that the 48 hour deadline established by County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), was for probable cause determinations when a person is in custody, not for all probable cause determinations. The member said probable cause would be considered at some point in all cases.
A member said it was not contemplated that a summons (without bond) be issued in every case involving a uniform complaint. The member said there would never be summons issued with no arrest in a DUI case, for example. The member said that the district courts had used their discretion to establish bond schedules for various offenses and use of these bond schedules should continue.
A member said the statute suggested that a summons would be issued in every case
that involved a uniform complaint. The member said that law enforcement could always do a warrantless arrest, but in such a case a probable cause determination was required. A member said that the summons referred to in the statute and the proposed rule language was a summons to appear after bond had been posted under the schedule.
The motion CARRIED.
By unanimous consent, the last clause of the amendment language was converted into a separate sentence: "In any circumstance where an individual is held in custody they must be brought before a magistrate for an initial appearance without unnecessary delay."
A member said that the language of the amendment indicated that some felonies could be charged out by citation. Mr. Erickson said state statutes allowed second offense fleeing in a vehicle and felony DUI to be initially charged by citation. He said these were the only felony offenses that the amendment language applied to, and that an information would still be required on these felonies at the preliminary hearing.
A member asked whether the highway patrol would be issuing summonses on failure to have auto insurance. Mr. Erickson said that the statutes required a 20-day notice before an arrest on a no insurance citation.
Staff advised the Committee that if the proposed amendment to Rule 5 was sent to the Supreme Court as part of the annual rules package, the amendment likely would not take effect until March 1, 2010. Staff said the statutory changes took effect January 1, 2009.
Mr. Mack MOVED that the proposed amendment to N.D.R.Crim.P. 5 be sent to the court on an expedited basis as an emergency measure. Judge Schneider seconded. Motion CARRIED.
The Chair asked whether the Committee wanted to move forward on changing the language throughout the criminal rules to establish a uniform term for the charging document in a criminal case instead of continuing to use "complaint" and "information."
Mr. Plambeck MOVED to instruct staff to draft proposed changes to the rules using "information" throughout the rules rather than "complaint." Mr. Quick seconded.
A member said that the motion might create a lot of work for no purpose. The member said that different prosecutors use different documents depending on personal preference and established practice. The member said the amendment language the Committee just adopted used "complaint" because this was the statutory term and that it
would not be appropriate to change this particular reference.
A member said that in some districts, prosecutors were titling documents "complaint/information." The member said how a charging document was titled was not greatly important as long as it contained the necessary items. A member said it was not too hard for prosecutors to determine the correct contents for charging documents for misdemeanors and felonies.
The motion FAILED.
RULE 43, N.D.R.Crim.P. - DEFENDANT'S PRESENCE (PAGES 64-69 OF THE AGENDA MATERIAL)
Staff reviewed the Committee's actions on Rule 43 at the January 2009 meeting. Staff explained that the Committee had instructed staff to prepare amendments to Rule 43 that would incorporate the substance of N.D.C.C. § 29-22-05 on juror questions and evidence requests.
Judge Nelson MOVED to approve the amendments to Rule 43. Ms. Ottmar seconded.
A member said the proposed amendments reduced to writing what jury question practice has been in most areas of the state.
Judge Geiger MOVED to amend page 65, line 13 to delete "the information requested" and substitute "a response to the information or evidence request." Mr. Mack seconded.
A member said the motion should be approved because the language in the proposal suggested that the court must give the jury whatever information it requested, rather than providing an appropriate response to the request.
A member said the use of "evidence" in the motion was not consistent with the use of "testimony" in the previous sentence. A member suggested that simply referring to the court's response and not using the words "information or evidence" might be simpler.
By unanimous consent, the motion was amended to state: "The response must be provided in the presence of counsel and the defendant."
The motion CARRIED.
A member said that the proposal language should make it clear that the agreement referred to in draft paragraph (a)(3)(B) is an agreement as to the manner of the response, not about the content of the response. The member said that the parties should not be able to veto the content of the response.
Judge Nelson MOVED to add language after "manner" at page 65, line 17: "other than in open court if." Mr. Plambeck seconded.
A member said this would clarify that the paragraph was referring to the form of the response rather than its content.
By unanimous consent, the motion was amended to add the word "manner" to the title of the paragraph.
The motion CARRIED.
Judge McLees MOVED to amend page 65, line 13, to add the word "court's." Judge Nelson seconded. The motion CARRIED.
A member asked if the proposed new language should be merged into a single paragraph. A member responded the separation was needed because the paragraph referred to dealt with alternative approaches.
The motion to approve the proposed amendments to N.D.R.Crim.P. 43 and to send the rule to the Supreme Court as part of the Annual Rules Package CARRIED.
PROPOSED RULES OF JUVENILE PROCEDURE (PAGES 70-113 OF THE AGENDA MATERIAL)
Staff explained that in March 2009, the Juvenile Policy Board submitted a proposed set of Rules of Juvenile Procedure to the Supreme Court. Staff said the Court has now referred these rules to the Committee for review and recommendation.
The Chair explained to the Committee that the proposed rules had been drafted by a specially expanded Juvenile Policy Board with supplemental members drawn from all constituencies in the juvenile court community, relying on the experience of people who work with juveniles every day.
The Chair said that the Committee could look at each proposed rule and that Committee members could make comments and suggest changes as needed.
Judge Nelson MOVED to recommend approval of proposed Rules of Juvenile Procedure 1-17. Judge Schneider seconded.
On Rule 1, relating to scope, staff said that the Board had made cross-references to the Rules of Evidence and the Rules of Court in Rule 1 because the members desired these rule sets to apply in juvenile matters.
On Rule 2, relating to hearing time, the Committee's members had no comment.
On Rule 3, relating to petition contents, a member said the new district court computer system would not be able to handle allegations of deprivation and delinquency made in the same petition. The member said two separate petitions would be required in such cases and it may be necessary to incorporate this requirement in the rules. The member said that persons filing petitions would need to be instructed about this.
A member suggested that the separate petition issue be addressed when the new computer system is put in place.
A member asked if there would be separate clocks ticking on the separate petitions. A member responded that there are different time lines for delinquency and deprivation cases. The member said this was one reason why they were separate in the computer system.
The Chair pointed out that the term "parties" was defined in Rule 3. She said that this definition had been a major area of contention when the Board was drafting the rules and the resulting definition was the product of extensive discussion among the Board's members.
The Chair said that Rule 4, relating to interested persons, supplemented the definition of "parties" by listing the other persons who could participate in a juvenile court matter.
A member asked about the meaning of the term "lay guardian ad litem" in Rule 4. The member said an attorney could be appointed guardian ad litem in a juvenile case but the use of the term "lay" in the rule seemed to exclude attorney guardians ad litem from participation.
Mr. Mack MOVED to delete the term "lay" at page 79, line 5. Mr. Reierson seconded.
A member said that if the Board's desire was to make sure that lay guardians ad litem could participate in juvenile cases, the expansive term "guardian ad litem" should be used rather than restricting the term by adding "lay." A member said language could be added to
the explanatory note to indicate that the term "guardian ad litem" included lay guardians ad litem.
By unanimous consent, the motion was amended to include an instruction that an explanatory note be drafted to indicate that the term guardian ad litem includes both a lay person or licensed attorney serving in the role.
The motion CARRIED.
A member asked whether the Board considered what role the victim would play as an "interested person" in a juvenile matter. The Chair said the issue was discussed and that victims had rights under statute. A member said the victim could be included under the catch-all provision in Rule 4, paragraph 5, allowing the participation of "any other person" important to the resolution of the matter.
Mr. Mack MOVED that a cross-reference to N.D.C.C. ch. 12.1-35 be added to Rule 4. Judge McLees seconded. Motion CARRIED.
On Rule 5, relating to the summons, a member pointed out that the term "lay guardian ad litem" was used in two locations.
Mr. Mack MOVED to delete the term "lay" before "guardian ad litem" in Rule 5. Judge Nelson seconded.
A member said that one theory behind expanding the use of lay persons as guardians ad litem was that they would be more involved in their client's case. A member said using lay guardians ad litem is also cheaper. A member said that the main support for using lay guardians ad litem was coming from people involved in the juvenile court system.
A member said that the roles of advocate and guardian ad litem are different roles and a child can have both an attorney and guardian ad litem. A member said that many lay guardians ad litem had received special training in working on deprivation cases.
On Rule 6, on service of summons, a member asked whether the courts were paying for travel expenses of persons summoned to appear. The member pointed out that the language of the proposed rule at page 83, lines 25-27, would allow the court to make such payments. The member said that the courts had been trying to move away from making these payments in the juvenile area.
The Chair said the language on payment came from a statute. A member said that the proposed rule language did not specify from which budget the "state funds" would come and it seemed inappropriate to place a judge or referee in the position of deciding from where the money should come. The member said if the money was not in the court budget, it would be a good time to supersede the statute and specify by rule which agency would be paying the money.
A member said that the state court administrator should be queried about from which budget the service and travel money referred to in the proposed rule and the existing statute is coming.
On Rule 7, relating to service after the summons, staff said the rule was intended to create a simplified method for service to be used after a juvenile proceeding was commenced. The Committee had no comment on the rule.
On Rule 8, relating to provisional hearings, the Chair explained that the rule basically covered situations where the parents could not be found and some action needed to be taken on the child. The Committee had no comment on the rule.
On Rule 9, relating to continuances, staff explained that the Board had drafted the rule as a means to implement standards for continuances in juvenile court. A member said that currently, courts need to be careful to make a record to support any continuance in a juvenile case because federal funding can be endangered if time standards are not met. The member said the rule seemed to reinforce the need for a record by requiring findings and notice to the parties prior to granting a continuance.
On Rule 10, relating to presence and default, a member asked about language on page 90, lines 10-11, requiring the "parent, guardian, or custodian of a child" to appear at all hearings unless excused. The member asked if this meant both parents. The member said that in many routine juvenile proceedings only one parent will appear. A member said a judge could require both parents to appear or allow the proceeding to proceed with one parent. A member said it was fairly common for only one parent to appear because typically parents have jobs.
A member said it was good to require both parents to be present because sometimes juvenile courts do not consider the absent parent when placing the child in custody. The member said that sometimes placing the child with a non-custodial parent would be better than placing a child in state custody, but that this approach cannot be analyzed when both parents are not present.
On Rule 11, relating to notice of alibi defense, staff explained the rule was modeled on the similar rule in the Rules of Criminal Procedure. A member said that in criminal cases, there are a number of situations in which notice is required, such as when a mental disease or defect is claimed as a defense. The member said singling out the alibi defense for a separate rule while ignoring other defenses might not be appropriate.
The Chair said the juvenile rules may be expanded once some experience is gained using them. A member said the issue of having rules requiring notice when certain defenses are claimed should be raised when adding more rules is considered. A member said notice needs to be given of an alibi defense for good reason, but the same can be said of mental health defenses.
On Rule 12, relating to discovery, a member said the rule would create a procedure that would be a lot broader than the current one.
A member expressed specific concerns: the proposal referred to statutory privileges while North Dakota's privileges are in the Rules of Evidence and Rules of Civil Procedure; the proposal allows discovery of written and oral statements without making exceptions for attorney-client or work product privileged statements; the proposal does not provide for the disclosure of anticipated expert testimony; and the only time deadline specified in the rule for disclosure of anything is "promptly."
A member said that time deadlines and privileges should not be forgotten even in a juvenile proceeding. A member said the proposal would apply not just to "civil" juvenile matters but to delinquency proceedings. The member said the proposal allows much broader discovery than allowed in criminal cases, including putting a reciprocal discovery burden on the defense and requiring production of statements made by the accused person.
A member said the main problem was that the proposed discovery rule was one-size-fits-all and that it did not account for the differences in delinquency and other juvenile cases. A member said two rules would be more appropriate, one for delinquency and one for deprivation.
A member asked whether the Board had considered, during its discussion of the rules, adopting the Rules of Civil Procedure and the Rules of Criminal Procedure by reference, depending on the type of proceeding. A member said that one impetus for developing juvenile rules was that different jurisdictions around the state were using different rules, some criminal, some civil.
A member said the proposed discovery rule was way too broad and should not be
adopted. The member suggested sending it back to the Board to be rewritten or for two rules to be written.
Judge Nelson MOVED to not recommend approval of Rule 12. Mr. Quick seconded.
A member said that all the Committee's comments on Rule 12 should be passed along to the Supreme Court so that it would understand the Committee's objections.
A member said regardless of what approach to discovery is taken, these are rules for juvenile cases and there needs to be some allowance for reciprocal discovery with the best interests of the child in mind. The member said the juvenile rules in delinquency cases should not take the same approach to discovery as the Rules of Criminal Procedure.
The motion CARRIED.
On Rule 13, relating to subpoenas, a member pointed out that the rule made reference to depositions but that there was no deposition rule in the proposed Rules of Juvenile Procedure.
A member said that depositions are rarely taken in juvenile cases. The member said when they are taken, they are generally taken in delinquency cases. A member said that the criminal and civil rules on depositions are different. For example, under the criminal rule, a defendant cannot be deposed.
Judge Schmalenberger MOVED that the Supreme Court be informed that a rule on depositions in juvenile cases is needed. Judge Geiger seconded.
The Chair said that the Board's opinion was that if a juvenile rule did not cover a particular subject, the appropriate civil or criminal rule could be used. A member said that it might be appropriate to have a rule that specifically provided for the use of the appropriate civil or criminal rule when a juvenile rule did not cover the topic. A member said this provision could possibly be included in Rule 1 on scope.
The motion CARRIED.
On Rule 14, relating to motions, a member said that the time provided to respond to a motion under the rule was very short. A member replied that the desire is to move everything quickly in juvenile court.
A member commented on language in subdivision (d) instructing courts not to defer
acting on a motion if "deferral will adversely affect a party's rights." The member said any ruling on a motion could adversely affect a party's rights.
A member, referring to paragraph (a)(2)(B) on grounds for dismissal of the petition, asked whether there was a definition of "prima facie case" in the juvenile context. The member said in delinquency cases, the same probable cause standard that applies in adult court typically also applies in juvenile court. A member said probable cause was also the standard for shelter care. A member commented that, in delinquency cases, a case where there was no probable cause was not a prima facie case.
The Committee discussed whether the wording of paragraph (a)(2)(B) should be changed to use "probable cause" instead of "prima facie case." A member said that, while probable cause was used in some deprivation cases, it was not generally the applicable standard outside of delinquency cases. A member said "prima facie case" could be defined narrowly or widely depending on the circumstances and that a "facial" showing can be less than probable cause.
On Rule 15, relating to notice, a member pointed out that "lay guardian ad litem" was used in the rule.
Judge McLees MOVED to delete the term "lay" where it appears before "guardian ad litem" in Rule 15. Ms. Ottmar seconded. Motion CARRIED.
A member asked whether the term "guardian ad litem" really did encompass "lay" guardians ad litem. A member said that, by rule in divorce cases, guardians ad litem were required to be lawyers. A member said that the term "guardian ad litem" is broad enough to include lay people, if they are appointed by the court to the job. A member said that lay people were appointed as guardians ad litem in civil cases.
On Rule 16, relating to modification and vacation of orders, a member said that the rule was written so broadly that it seemed to require a hearing whenever a motion to modify an order was filed. The member said that if the court makes a mistake and wants to amend its findings on its own motion, it should be able to do it without a hearing. The member said that a hearing seemed to be required even when both sides agreed on a modification.
Staff said that the content of the proposed rule was taken from statute. A member pointed out that the rule said the hearing "may be informal." A member said that a court could make a mistake in the term of probation in an order and the rule would require a hearing before the court could correct the order to insert the proper term. The member said this procedure gave the court no leeway and was inconsistent with other rules of procedure.
Judge Schmalenberger MOVED that the Committee report to the Supreme Court that requiring a hearing on every motion seemed to be inconsistent with the Rules of Court. Judge Nelson seconded. Motion CARRIED.
On Rule 17, relating to lay guardians ad litem, staff drew the Committee's attention to a letter from Brad Swenson, director of the North Dakota Guardian ad Litem project, asking the Committee to discuss judicial immunity for lay guardians ad litem.
A member said a major issue with using lay people as guardians ad litem is that they have no malpractice insurance and no one to represent or defend them against legal claims. Staff said that when the Board reviewed juvenile court statutes, N.D.C.C. § 27-20-48 was amended to specifically allow use of lay guardians ad litem in juvenile cases and that Rule 17 was designed to implement and regulate the use of lay guardians ad litem.
A member said Rule 17 possibly would be an appropriate place to insert language indicating that the term "guardian ad litem" includes "lay guardian ad litem." A member said it might not be appropriate to put the language in Rule 17 because the rule also established a lay guardian ad litem review board that attorney guardians ad litem may not wish to fall under.
A member drew the Committee's attention to language at page 107, line 29, which barred people with a "substantiated instance" of child abuse or neglect from being lay guardians ad litem. The member said that "substantiated instance" was not a legal term of art. A member said that the term likely came from the social services context where findings are made relating to child abuse or neglect.
A member said subdivision (a) of the rule requires appointment of a lay guardian ad litem if the interests of the child conflict with the interests of the parent. The member said the appointment must be made if the interests conflict at any stage of the proceeding. The member said that the court could be in the middle of a hearing and the child could start disagreeing with the parents and, under the rule, the court would have to stop everything to appoint a lay guardian ad litem. The member said this was unworkable.
Staff explained that the text of subdivision (a) was based directly on statutory language.
Mr. Mack MOVED to amend page 106, line 5, to add the words "or attorney" after "lay." Ms. Ottmar seconded.
A member said that the decision to require use of lay guardians ad litem in juvenile
matters reflected a money issue. The member said that indigent defense attorneys had been used to represent children in juvenile matters in the past. The member said having courts appoint lay guardians ad litem in juvenile cases saved money and it was unlikely that attorneys would be appointed as guardians ad litem even if the rule language was changed.
A member said that the amendment would at least allow the court, in a difficult case, to appoint an attorney guardian ad litem. A member said that it was unclear how appointment of an attorney guardian ad litem would be funded. A member said that a child did not have the right to have an attorney in a deprivation case, although they would have the right to a lay guardian ad litem.
Staff said that the explanatory note to Rule 5 described the right to indigent counsel in juvenile cases.
A member asked whether the word "must" was needed in subdivision (a). The member asked whether "may" would be more appropriate to give courts more discretion in appointing a lay or attorney guardian ad litem in a juvenile case. The member said a guardian ad litem may be unneeded in some cases, such as a delinquent case in which the child is represented by an attorney.
The Chair said the child's attorney and the guardian ad litem may have a different function depending on the circumstances of the case. A member said the attorney is supposed to represent the child's interests while the guardian ad litem may make recommendations along different lines. A member said the guardian ad litem could also testify as a witness while the attorney cannot.
A member said that referencing attorney guardians ad litem in a rule devoted to lay guardians ad litem was not wise. A member said someone with a law degree was not prohibited from being a lay guardian ad litem as long as they fulfilled the other qualifications under the rule. A member said that if an attorney was appointed under the rule, the attorney could testify like any other guardian ad litem. A member said that if a guardian ad litem makes a recommendation, the parties have the right to examine the guardian ad litem to determine the basis for the recommendation.
A member said it was not inconsistent to have a lay guardian ad litem and an attorney for the child. The member said that, in some cases, it is the lay guardian ad litem who determines that the child needs an attorney and makes the request to the court. A member asked whether language should be added to the rule specifically allowing the guardian ad litem to request attorney representation for the child.
A member said that, because Rule 4 already defines any guardian ad litem as a person of interest in the case, it is not necessary to change Rule 17 to reference attorneys. The member said that the rule's focus should be on lay guardians ad litem.
A member said that changing the "must" on page 106, line 5, to "may" would give the court discretion to appoint either an attorney or lay guardian ad litem. A member said lay and attorney guardians ad litem needed to be treated as two separate types. The member said that an attorney can be a "lay" guardian ad litem if they chose to operate under Rule 17 and comply with the rule's numerous requirements. The member said someone appointed as attorney to represent the child has a different role.
A member said a Rule 17 guardian ad litem is performing a specific function that someone who meets the rule requirements (including an attorney) can perform, but they are not acting as an attorney. An attorney who has decided to act as a Rule 17 guardian ad litem cannot act as a legal advocate. A member replied that the court should have the option of appointing an attorney guardian ad litem without requiring that person to comply with Rule 17's lay guardian ad litem standards. A member said attorneys in general have a substantial amount of training and it does not make sense to require them to comply with the Rule 17 standards to serve as guardians ad litem in juvenile cases.
A member said that, even though a person is an attorney, that person may not have an understanding of certain fields, such as juvenile court. The member said the role of a lay guardian ad litem under Rule 17 is different than the role of an attorney and just because a person has lawyer training does not mean the person has the knowledge or experience required to serve as a guardian ad litem in juvenile court. The member said the basic training outlined in Rule 17 would give a person the basis for understanding the role of a juvenile court guardian ad litem.
A member said attorneys get in complicated situations all the time in the practice of law and understand they need to consult with experienced persons when they are in an unfamiliar situation, including juvenile court.
A member pointed out that subdivision (a) of the rule grew out of a statute which required the appointment of lay guardians ad litem under certain circumstances in juvenile cases. A member said that allowing lay people to fulfill this role was a legitimate response to the expense of appointing an attorney, and Rule 17 provides the framework for making sure these lay people are qualified and meet certain standards. The member said Rule 17 was intended to apply to people appointed as juvenile court lay guardians ad litem and that it is important to recognize this fact when discussing the roles of attorney and lay guardians ad litem in juvenile cases.
A member said the main problem of the rule was that subdivision (a) provides that a lay guardian ad litem "must" be appointed in certain situations. A member responded that this requirement was drawn from the statute. A member said that courts should have the option of appointing an attorney as a guardian ad litem in a juvenile case.
A member asked whether lay guardians ad litem were insured. A member said there was no insurance plans yet for lay guardians ad litem under Rule 17. A member replied that this circumstance supports the option of appointing attorney guardians ad litem in juvenile court until insurance is in place for lay guardians ad litem.
A member suggested that subdivision (a) of Rule 17 be split into a separate rule that would govern appointment of guardians ad litem in juvenile cases and that the remainder of Rule 17 serve to govern lay guardians ad litem.
A member asked whether anyone would serve as a lay guardian ad litem without any liability coverage and whether it would be better just to have attorney guardians ad litem. A member replied that one reason the lay guardian ad litem program was created was because attorney guardians ad litem were not doing a very good job when appointed in juvenile cases. The member said they were not giving enough attention to the cases or attending required meetings. The member said the issue was not whether attorney guardians ad litem were qualified to work in juvenile matters but whether they were able to devote the required amount of attention to these cases.
A member said lay guardians ad litem were currently available to serve in juvenile cases in all the judicial districts.
The Chair said that N.D.R.Ct. 8.7 required that guardians ad litem in custody cases be licensed attorneys but it also required these licensed attorneys to take additional training and meet additional requirements before they could be appointed under the rule.
The motion to add "or attorney" to page 106, line 5, FAILED.
Mr. Plambeck MOVED to delete subdivision (a) at page 106, lines 3-13. Mr. McGee seconded.
A member said the right to have a guardian ad litem appointed in a juvenile case is a substantive right governed by statute. The member said the rule should focus on the qualifications of a person serving as a lay guardian ad litem rather than setting out the circumstances when one should be appointed.
By unanimous consent, the motion was amended to include drafting an explanatory note to summarize N.D.C.C. § 27-20-48, which sets out circumstances in which a guardian ad litem is to be appointed in a juvenile case.
The motion CARRIED 8-4.
The motion to report back to the Supreme Court with a recommendation that the Rules of Juvenile Procedure, as amended, be adopted CARRIED.
RULE 1.1, N.D.R.Ct., SCOPE; RULE 4.2, N.D.R.Ct., NOTICE TO INTERESTED PARTIES (PAGES 114-116 OF THE AGENDA MATERIAL)
Staff explained that the Juvenile Policy Board requested that the Committee consider amendment of Rule 1.1 so it would state specifically that the Rules of Court apply to juvenile matters and that the Committee consider repeal of Rule 4.2 because its subject matter would be covered by proposed N.D.R.Juv.P. 15.
Ms. Ottmar MOVED to approve the proposed amendments to Rule 1.1. Mr. Boschee seconded.
A member said that several of the proposed Rules of Juvenile Procedure conflict with the Rules of Court, particularly as far as deadlines are concerned. The member said it would be better to say somewhere in the juvenile rules that, to the extent not inconsistent with the juvenile rules, the juvenile rules incorporate the Rules of Civil and Criminal Procedure and the Rules of Court.
The motion to approve the proposed amendments to N.D.R.Ct. 1.1 and to send the rule to the Supreme Court as part of the Annual Rules Package CARRIED.
Mr. Mack MOVED to approve the proposed repeal of Rule 4.2. Mr. Quick seconded.
The motion to approve the proposed repeal of N.D.R.Ct. 4.2 and to send the rule to the Supreme Court as part of the Annual Rules Package CARRIED.
RULE 20, N.D. Sup. Ct. Admin. R., MAGISTRATES QUALIFICATIONS, AUTHORITY, EDUCATION AND PROCEDURES (PAGES 141-148 OF THE AGENDA MATERIAL)
Staff explained that the Supreme Court had referred to the Committee, for review and recommendation, a letter from Judge Joel Medd suggesting that presiding judges be given
the power under Admin. R. 20, § 5, to delegate to magistrates the duty and authority to conduct preliminary examinations.
The Chair said that the Supreme Court had amended Admin. R. 20 to limit the duties that non-law-trained magistrates could perform. The Chair said Judge Medd's proposal seeks to expand the duties of law-trained magistrates to include conducting preliminary examinations if delegated by the presiding judge. The Chair said that the number of duties delegated to magistrates across the state varies widely according to the specific magistrate and presiding judge involved.
Judge Geiger MOVED to approve the proposal to amend Admin. R. 20. Mr. Reierson seconded.
The Chair asked whether any districts were using magistrates to conduct preliminary examinations. A member said that the magistrate in Grand Forks had conducted preliminary examinations for a long while.
The motion to approve the proposal CARRIED. Staff informed the Committee that, because the proposal was sent to the Committee by the Supreme Court for review and recommendation, the Committee's recommendation to approve the proposal would be sent directly back to the Court.
RULE 35, N.D.R.Crim.P., CORRECTING OR REDUCING A SENTENCE (PAGES 149-161 OF THE AGENDA MATERIAL)
Staff explained that Judge Doug Mattson had requested that the Committee examine Rule 3's deadline for a court to grant a sentence reduction. Staff said Judge Mattson suggested that the deadline disadvantages defendants held in county jails because these defendants, once they miss the 120-day deadline for sentence reduction, do not have the option of seeking parole.
Mr. Quick MOVED to approve the proposed amendments to Rule 35. Mr. Mack seconded.
A member asked how long the deadline should be extended for inmates held in county jail. By unanimous consent, the proposal was amended to provide for a 365-day deadline.
A member said that courts get a significant number of letters asking for sentence reductions under Rule 35. A member said that the proposed change may be unnecessary because, when a defendant is sentenced to a county jail, it is rarely for a long period. The
member said courts take into account that defendants will have less services when sentenced to county jail and adjust the sentence accordingly. A member said defendants often get good time when sentenced to county jail, which reduces their term.
The Chair asked what the typical sentence would be for county jail. Committee members replied that a county jail sentence could be as long as a year, but six months was more commonly the maximum. A member said some jails had a 90-day sentence limit. A member said that a defendant would not normally be given a long sentence to a county jail unless the defendant had requested to be in the jail in order to take advantage of work release. A member said that it is less expensive to send defendants to the penitentiary and that the counties generally do not want to bear the expense of long-term jail inmates.
A member said the proposed 365-day period for requesting sentence reduction would allow jail inmates to make requests for reduction over the entire potential period of their jail term.
The motion to approve the proposed amendments to N.D.R.Crim.P. 35 and to send the rule to the Supreme Court as part of the Annual Rules Package FAILED.
RULE 8.12, N.D.R.Ct., RIGHT TO COUNSEL TERMINATION OF PARENTAL RIGHTS (PAGES 163-172 OF THE AGENDA MATERIAL)
Staff explained that the Chief Justice had requested the Committee consider adoption of a new rule setting out counsel rights in termination of parental rights cases. Staff said the North Dakota Supreme Court recently issued an opinion in Adoption of J.D.F. in which it reversed a termination of parental rights order because it was not clear from the record that an indigent parent had been advised of the right to counsel.
The Chair pointed out that involuntary termination of parental rights could be accomplished under the Uniform Juvenile Court Act, the Uniform Parentage Act and the Revised Uniform Adoption Act.
Judge Geiger MOVED to approve the proposed new Rule 8.12. Judge Schneider seconded.
A member asked whether there was a procedural rule on notices where the counsel rights provision could be inserted rather than requiring the court to provide the information on counsel rights. The member said that in many adoption cases, which involve termination of parental rights, it is very rare for the terminated parent to contest the action or show up in court. The member said, however, that the parent would be served with a notice of the action
and that this would be an appropriate time and place to provide notice of counsel rights. The member said by the time of the hearing, it is really to late for a parent to take advantage of counsel rights, in part because the parent is unlikely to appear at this stage.
A member said the petitioner should be giving the parent to be terminated notice of counsel rights in the first papers that are served. A member said that the proposed juvenile rules require notice of counsel rights to be provided when the summons is served. A member said that similar early notice should be required in other termination of parental rights matters.
A member said the statute granting counsel rights was more substantive than procedural. The member said the statute put the responsibility on the court to notify parties of the right to counsel. A member said that the court could still be required to notify parties of counsel rights, but it would be more meaningful if an earlier notification was given. A member responded it might be best not to base the proposed rule on the statute but to craft a rule requiring that notification of counsel rights be made at the most useful time.
Judge Geiger MOVED to amend page 163, line 4, replacing "the court" with "in any proceeding of this nature, the summons" and deleting "before the proceeding begins." Judge Nelson seconded.
A member asked if the rule should state that counsel be provided "at no cost" rather than "at no charge" to the indigent parent.
A member asked how it would work for an indigent parent who received a notice that counsel could be provided. The member asked whether the parent would need to come to the hearing unrepresented and then request counsel. A member replied that indigent persons typically contact the court requesting an attorney and the court assists them in filling out the appropriate forms.
A member asked whether, if a parent showed up in the middle of a proceeding, claimed indigence and requested an attorney, the proceeding would have to stop. The consensus was that the proceeding would be suspended until an attorney was appointed.
A member said that the summons would only inform the defendant of the appointment of counsel rights. A member responded that the party issuing the summons is generally seeking to terminate the other parties' parental rights, not their own.
The motion to amend CARRIED.
Ms. Ottmar MOVED that a form be created with standard language for summons and the notice of right to indigent counsel in a termination case. Judge Nelson seconded.
A member said that the proposed rule language seems to suggest that an indigent parent seeking to terminate the other parent's parental rights has a right to counsel at no charge. A member said that statutory and case law only allowed representation for indigent parents who are facing termination of parental rights against their will.
Ms. Ottmar MOVED to table the motion to create a summons form. Judge Nelson seconded. Motion CARRIED.
A member said the proposed rule needed to be amended to make it clear that it is the parent who is facing unwilling termination of parental rights who is entitled to legal representation. A member said that it is the parent opposing termination who has the right.
A member said that in a termination proceeding, the referee generally begins by listing the rights the parent facing termination has and then questioning that parent. A member said, however, that while this is a good procedure, often no one attends the actual termination hearing. A member said this was especially true in stepparent adoptions and agency adoptions.
Judge McLees MOVED to amend page 163, lines 3-4, to replace "a" with "that parent's" and to add at the end of the sentence "against that parent's will." Motion FAILED for lack of a second.
Mr. Boschee MOVED to amend page 163, line 3, to replace "a" with "that parent's." Judge Nelson seconded.
A member said the statute appeared to give even an indigent parent who consents to give up parental rights the right to counsel without charge.
Judge Nelson MOVED to amend the motion to replace, page 163, lines 3-4, the phrase "parent and child relationship" with "parental rights." Judge McLees seconded.
The motion to amend the motion CARRIED.
The motion, as amended, CARRIED.
Mr. Plambeck MOVED to amend page 163, lines 5-6, to replace the proposed sentence with: "Before the proceeding begins, an indigent parent must be informed of the
right to legal counsel and that legal counsel may be provided at no legal expense to that indigent parent."
Prior to Mr. Plambeck's motion being seconded, members began to contribute suggestions on additional language for the motion.
A member said that the amendment appeared to insert a double notice burden, notice in the summons and notice by the court. A member said that the document that is served is not always a summons, sometimes it is a notice of hearing or notice of filing.
Mr. Plambeck agreed to add to the motion "or notice of hearing" after "summons" at page 163, line 4.
A member said that the language of the proposed rule should be reorganized to move language stating the existence of the right to legal counsel at public expense to the beginning of the proposal. The member said that if there was going to be a duty placed on the court to advise of the counsel rights, in addition to the notice in the summons, this should be stated explicitly.
Mr. Plambeck agreed to revise the motion so that the proposed rule would read: "A parent has a right to counsel during all stages of a proceeding to terminate the parent's parental rights and to have legal counsel provided at public expense if indigent. In any proceeding of this nature, the summons or notice of hearing must advise the parents of these rights. In addition, before the proceeding begins, the court must inform the parents of these rights."
A member asked whether the obligation to advise of counsel rights only extended to indigent parents. A member said all parents must be advised of the right but appointment of counsel at public expense would only take place if the parent was indigent.
The Committee decided to continue discussion of Mr. Plambeck's proposed motion in the Friday session.
The meeting recessed at approximately 5:30 p.m. on May 21, 2009.
May 22, 2009 - Friday
The meeting was called to order at approximately 8:30 a.m. by Justice Mary Muehlen Maring, Chair.
RULE 8.12, N.D.R.Ct., RIGHT TO COUNSEL TERMINATION OF PARENTAL RIGHTS (PAGES 163-172 OF THE AGENDA MATERIAL)
Staff presented a redrafted version of Mr. Plambeck's proposed motion, incorporating suggestions provided by the Committee: "A parent has a right to counsel during all stages of a proceeding to terminate that parent's parental rights. If indigent, the parent has a right to have legal counsel provided at public expense. The notice of hearing or summons must advise the parent of these rights and the court must confirm that the notice was given."
Ms. Ottmar seconded.
A member said that having the court confirm the notice was given would allow the court to check the written record for notice in those cases where the parent does not show up for the hearing.
The motion CARRIED.
The motion to approve the proposed new N.D.R.Ct. 8.12 and to send the rule to the Supreme Court as part of the Annual Rules Package CARRIED.
RULE 3.4, N.D.R.Ct., PRIVACY PROTECTION FOR FILINGS MADE WITH THE COURT; RULE 41, N.D. Sup. Ct. Admin. R., ACCESS TO COURT RECORDS (PAGES 117-140 OF THE AGENDA MATERIAL)
Staff explained that numerous requests for adjustment of Rule 3.4 and Admin. R. 41 had been received since Rule 3.4 went into effect March 1, 2009.
Judge Geiger MOVED to approve the proposed amendments to Rule 3.4 and Admin. R. 41. Mr. Mack seconded.
Judge Nelson MOVED to delete the requirement to redact street addresses in criminal cases on page 119, lines 6-7. Mr. Mack seconded.
A member said the street address redaction requirement, and restrictions on releasing defendants' street addresses in criminal cases, was causing a lot of problems.
A member said that the courts were moving toward electronic filing of all documents and that this should be considered before allowing street addresses to be released. A member replied that street addresses were not difficult to obtain in the phone book or on the Internet. The member said that when the courts withhold street addresses in criminal cases the identity
of the defendant becomes ambiguous.
A member said that all street addresses in criminal cases, including the addresses of witnesses, victims and jurors, could become accessible once electronic filing is in place. A member asked whether electronic access to some of this data could be restricted. A member replied that if information is accessible in the court file, it will be accessible electronically.
A member said the question of whether the public will get full access to all electronically filed documents had not yet been answered. The member said there was an argument that only parties and their attorneys should get full access to all electronically filed documents in a court file. A member said that allowing a clerk to show a file to someone who appeared in person to look at it was different than allowing the whole world to look at the file over the Internet.
The Chair commented that the new computer system that the court was working to bring online could be set up to restrict access to a defendant's address before conviction and to allow access after conviction. A member said that this would not help with traffic citations, which are a large part of the "criminal" cases and currently need to be copied and physically redacted. The member said this is a job that the clerks currently perform because they have been instructed to do so.
A member said that there was no evidence that allowing release of street addresses had caused particular harm. The member said making addresses available would be beneficial and would reduce the extra workload on the clerks.
A member said there were other issues to consider. The member said that witnesses and jurors in criminal cases have an expectation of some privacy. The member said it would be harder for people involved in criminal cases if their addresses were made public by the court. A member replied that the addresses of criminal witnesses are generally not made part of the court record.
A member observed that the addresses of witnesses in civil cases are already available because they are listed in the pretrial order.
The Chair asked whether documents like pretrial orders would be available electronically under the new court computer system. The Chair said that only docket information is available under the current system. A member replied that electronically filed documents could be made available online.
A member said that, in federal court, any person with a PACER account could open
any filed document electronically. The member said the person would have to pay to do this and the court would know who examined the file.
A member said the default position ought to be that everything in a court record is public. The member said a witness should not be able to testify anonymously. A member said any exceptions to making information public should be directed at preventing identity theft. The member said the trial court should also have the right to protect the identity of the jurors after they have been selected and before the verdict is read if this is necessary to protect the integrity of the trial.
A member said that under the current rule, the clerks have been instructed to review files for protected information before allowing a person to view the file. This can be a lengthy process in some cases, such as a contentious divorce. The member said if the clerks find unredacted information that is protected under Admin. R. 41, they must photocopy the document, redact the information on the copy, and place the redacted version in the public part of the file while placing the unredacted version in the sealed part of the file. The file cannot be released to the public until this review is done.
A member said that the clerks were not planning on having to do this review on all files, especially old files. The member said the result of the redaction was sometimes absurd, such as in a name change of a minor in which the only public document would contain no names at all, but only the old initials and the new initials. The member said this work was taking the clerks an enormous amount of time.
A member said the minor initial requirement created problems also in the case of domestic violence protection orders. If the protection order is against a minor, only the initials can be used, and then who is served with the order?
A member said that the change suggested by the motion was a good idea, but additional language in the rule would have to be changed if the motion was accepted.
A member asked what drove the rule provision restricting access to street addresses in criminal cases. The Chair explained that the provision was taken from the federal rule. A member said that the federal courts were in a different position than the state courts and do not have traffic cases and other small-scale criminal matters.
The motion to amend page 119 at lines 6-7 CARRIED. By unanimous consent, additional changes were made throughout the rule to conform to the amendment. Also by unanimous consent, Admin. R. 41 at page 130, line 163, was amended to conform to the Rule 3.4 amendment.
Staff said that Staff Attorney Jim Ganje had raised an issue regarding how a "financial-account number" was to be defined under the rule. The Committee reviewed Mr. Ganje's written comments. Staff said the reference to financial account numbers contained in N.D.R.Ct. 3.1 had been more specific than the reference in the current rule. Staff said that "financial-account number" is the term used in the federal rule.
A member said if the specific additional terms referenced by Mr. Ganje "credit, debit, and electronic fund transfer numbers" were added to the text of the rule in addition to "financial-account number" it could be seen as broadening the scope of the term "financial account number."
Ms. Ottmar MOVED to amend the explanatory note at page 121-122 to include an explanation that: "The term 'financial-account number' includes any credit, debit or electronic fund transfer card numbers, and any other financial account number." Judge Nelson seconded.
A member said it would be unwise to specifically refer to bill numbers because they did not seem to fit the definition of "financial-account number" and because in some cases, like divorce cases, there are numerous bills used as evidence, from medical bills to plumbers' bills.
The motion CARRIED.
A member asked whether an explanatory note should also be added to Admin. R. 41 explaining the scope of the term "financial-account number."
Judge Schmalenberger MOVED to add an explanatory note on financial-account numbers to Admin. R. 41. Ms. Ottmar seconded. Motion CARRIED.
A member said that if someone seeks a protection order against a person who is younger than 18, Rule 3.4 requires that only the initials of the subject of the order be used. The member said this means no one knows who the protection order is against, which defeats the purpose of the order people should know whether some other person may be a threat. The member said there should be an exception, at least for domestic violence protection orders, that would allow the full name of the minor to be used.
A member asked whether there would ever be a situation, outside of juvenile court, where it would be necessary to protect the identity of a minor. The member said this would possibly be necessary if the minor was a victim of a crime. A member added that protecting the identities of children involved in divorce cases was also important.
A member said that the use of initials alone for minors could sometimes cause confusion, as when all children in a family have the same initials.
A member suggested that an exception to the minor initial requirement be made for cases in which the minor is a named party. The member said that, outside of juvenile court, there was no reason to protect the identity of a minor who was a party.
A member said there may be reason to protect the identity of a minor who is the subject of a paternity action. A member replied that making this particular information public was important the very reason for a paternity action was to establish that a certain person was the father of a certain child.
A member said there was a particular need to know the identity of a minor who is the subject of a protection order. The member said not only law enforcement, but school officials would need to know if one person was a threat to another person. The member said that domestic relations protection orders are most often obtained against minors when a dating relationship goes bad, and the people involved are likely still going to school with each other.
A member asked whether any exception to the rule would need to go beyond a narrow exception for domestic relations protection orders. A member said that use of the full name should be allowed in name change actions, especially given that these actions have a publication requirement. A member said that often the notice of name change will be published using the whole name and then filed with the clerk using the initials only.
Judge Schmalenberger MOVED to add an exception to Rule 3.4 allowing the use of the full name of a minor when the minor is a party. Judge Nelson seconded.
A member asked whether the exception should apply to paternity actions. A member said that paternity actions are closed files, but the judgment is public. A member said it was appropriate that the child's full name appear in the judgment of a paternity action. A member asked whether there was a statutory provision that required the name of a child in a paternity action remain sealed. A member said that it was the language of Rule 3.4 that currently protected the identity of children in paternity actions.
The Committee discussed where the proposed amendment should be placed in the rule. A member suggested that the proposed exception properly belonged in subdivision (b) of the rule, which deals with exemptions. By unanimous consent, the proposed amendment was moved to paragraph (8) of subdivision (b) creating an exception to redaction of "the name of an individual known to be a minor when the minor is a party."
Mr. Plambeck MOVED to add "unless prohibited by statute, regulation or rule" to the end of the proposed amendment. Judge Nelson seconded.
Judge Geiger MOVED to amend the motion to use the words "when there is no statute requiring nondisclosure." Judge Schneider seconded.
A member said that the Uniform Parentage Act, N.D.C.C. § 14-20-05, protected the identity of individuals involved in proceedings under the act.
A member said using the term "regulation" was important because administrative rules could also prohibit identification of minors in certain proceedings. The member said there were likely to be provisions other than statutes that protect the identity of minors.
A member asked what Judge Geiger's proposed language would accomplish that Mr. Plambeck's proposed language does not accomplish. A member said the language seemed to be clearer but that it sought the same goal.
The motion to amend the motion CARRIED.
Mr. Plambeck MOVED to add the words "regulation or rule" after "statute" in the amended motion. Mr. Dunn seconded.
Mr. Dunn MOVED to amend the motion to change the word "requiring" in the amended motion to "mandating." Judge Nelson seconded. Motion CARRIED.
The motion to amend the amended motion CARRIED.
The amended motion CARRIED.
A member asked whether Admin. R. 41 needed to be amended to reflect the proposed change to Rule 3.4.
Judge Nelson MOVED to amend Admin. R. 41 to incorporate all the exemptions in Rule 3.4 by adding "unless exempted by Rule 3.4 (b)" before the words "personal information" at page 130, line 158. Ms. Ottmar seconded. Motion CARRIED.
Staff said that Mr. Ganje had a question about the meaning of language at page 119, lines 19-20. Mr. Ganje said the definition of "the record of a court or tribunal, if that record was not subject to the redaction requirement when originally filed" was not clear. The Committee reviewed Mr. Ganje's written comments.
A member said the language referred to court records that existed prior to the imposition of the Rule 3.1(j) redaction requirement, which became effective March 1, 2005. The member said that the provision was intended to relieve court staff of the need to go back and redact files submitted before the redaction requirement was put in place. The member said this language should be retained in the rule.
Staff said the language the Committee just proposed for Admin. R. 41 would extend the Rule 3.4(b) exemptions into Admin. R. 41. A member said this should eliminate any inconsistencies between Rule 3.4 and Admin. R. 41. A member said there should be a note to Admin. R. 41 explaining the Committee's intent that Rule 3.4 and Admin. R. 41 be read together. A member said that it had been the Committee's desire from the time redaction requirements were first introduced to place the burden of protecting personal information on parties submitting documents to the court.
A member pointed out that Rule 3.4 and Admin. R. 41 address different issues. One addresses the form of material that is being filed, the other addresses disclosure of material that has been filed. The member said that there are documents that were filed before the redaction rules that contain information that could assist identity theft. The member said that this information would not be protected under the proposed change to Admin. R. 41. The member said while it is a burden on the clerks to check documents to stop the release of protected information, the purpose of Admin. R. 41 is to protect people from having their personal information released.
A member said most of the material filed before 2005 is in paper form. The member said that this material was not going to be scanned and put on the Internet, as possibly may be done with newly filed material when the new district court file management system is put in place. The member said that people have been able to walk into courthouses for a hundred years and look at the physical file. The member said that paper files have an additional degree of protection because people have to walk in and stand in front of the clerk before they can see them.
A member said one example of an old file that would need to be extensively redacted by the clerks under current practice would be an old probate file. This is a file type that would likely contain substantial amounts of personal information. A member said that allowing access to the old personal information was important because they are "treasure troves" of information necessary for locating people who possibly have ownership interests in land or other property. The member said they also contain unique historical and genealogical information. A member said these files would be essentially worthless if redaction of old personal information continues to be required. A member said it would be doing the public a disservice if the information in old case files must be redacted.
Staff drew the Committee's attention to a proposed amendment to Rule 3.4 at page 120, line 25. Staff said the proposed change would eliminate the redaction exemption for charging documents and affidavits in support of charging documents. Staff said there had been complaints that this exemption had created a lot of work for the clerks because the people submitting these documents do not need to redact them so the clerks are then forced to redact them if copies are requested by the public or media.
Mr. Mack MOVED to restore the deleted material at page 120, line 25. Judge Nelson seconded.
A member said it was important to retain the charging document redaction exemption. The member said when a person with a common name is charged with a crime, it is important for the public to have details about the person charged, and information in the charging document provides these details.
A member asked whether retaining this exception would eliminate the current issues revolving around personal information, such as dates of birth, in uniform traffic citations. A member said that if a uniform traffic citation meets the definition of a charging document, it is exempt from the redaction requirement.
A member said the identity of a named defendant in a criminal case should be known. The member said a problem is that it is becoming more common for prosecutors not to do an affidavit of probable cause, other than one that just refers to attached police reports. The member said that all manner of information can be found in police reports, well beyond mere information about the defendant's identity. A member replied that time constraints force prosecutors to take the approach of including police reports with the affidavit of probable cause. A member said the court can order that the police reports in a given case be sealed if necessary.
The motion CARRIED.
Staff said that Mr. Ganje had asked what kind of "court filing" the language at page 120, lines 22-23, referred to. The Committee reviewed Mr. Ganje's written comments.
A member said the language could refer to a document like an affidavit in support of a search warrant. The member said it could also refer to materials related to a state's attorney's inquiry or a subpoena for financial records. A member said it would be preferable to retain the language unless there is evidence that it has created a problem.
Staff said that amendment of subdivision (e) at page 120, lines 33-36, had been
proposed. Staff said the amendment was designed to clarify procedure for filing unredacted documents under seal. Staff said Mr. Ganje had pointed out that the current language of the provision has created some confusion, especially about whether an unredacted document filed under seal could be considered an "original." The Committee reviewed Mr. Ganje's written comments.
A member said a key problem was how the unredacted document is treated as far as the docket is concerned. The member said if the unredacted document is not docketed, then the redacted document must be considered the original while the unredacted version will be treated as just a piece of paper in the file. The member said that how to handle redacted and unredacted versions of documents as far as the record was concerned was a problem. The member said that clerks seemed to be filing all the confidential material on the left side of the file and not necessarily including the confidential material on the docket or the record of actions.
A member said if an attorney filed a redacted version and an unredacted version of a document at the same time, both are now given the same file number, with one version on the public side and the other on the sealed side. The member said that the cover sheet on the sealed side would have an index listing the documents that have been filed.
A member said giving the same number to two versions of a document is dangerous. The member said that one document could be removed and no one would know by looking at the docket. A member said the solution to this would be to note that there are two versions when preparing the docket sheet, indicating that there is a redacted version and an unredacted version with the same number.
A member said that the new computer system could not handle having two documents with the same number. The member said having separate docket numbers for documents is important so that people can understand how the documents in the file came to be in the file. A member asked whether the computer system could handle having a number for the unredacted document and a number/letter combination for the redacted document so that the same base number could be retained for a given document.
A member said that making clear through docket numbering that two different versions of the same document exist in the file would solve any issues the clerks might have with certifying a document as "a true copy."
Mr. Plambeck MOVED to amend subdivision (e) at page 120, line 35, to add after "The court must" the words "separately docket and" and to add the words "and indicate it is filed under seal" at the end of the sentence. Judge Schmalenberger seconded.
A member asked whether the court would have to order the unredacted document to be filed under seal or whether the clerk could simply file it under seal at the party's direction. A member said that a filing under subdivision (e) could be done routinely without court involvement while the court itself may order filing under seal under subdivision (c).
A member said if the register of actions indicated that one number in the file was the redacted version and another number in the file was the unredacted version, the clerk could make a certified copy of either version and properly indicate it was a true copy of the version filed at the given docket number.
The motion CARRIED.
Staff said Mr. Ganje had raised an issue related to the text at page 121, lines 43-44, of Rule 3.4. Staff explained that this text was added to the rule by the Supreme Court as a way to ensure that the defendant's social security number, birth date, and street address were made part of the file, even though this data would be redacted and not released in the public part of the file. Mr. Ganje indicated that this language had created confusion about whether prosecutors were required to prepare and file lists containing references for all the protected personal information that might be in documents related to a given defendant or whether prosecutors could simply redact this material. The Committee reviewed Mr. Ganje's written comments.
Mr. Mack MOVED to delete the text at page 121, lines 43-44. Judge Nelson seconded.
A member said that including the prosecutor reference list requirement in the rule was not anticipated by the Committee. The member said the information required is not always available to the prosecutor and obtaining it can be difficult. The member said that the requirement created an additional workload for full-time and part-time prosecutors and that this created a real cost that had to come out of someone's pocket. The member said that the court usually obtains information about the defendant's social security number, birth date and street address at the defendant's initial appearance. The member said this procedure assures the accuracy of the information.
A member said the new computer system is party-based rather than case-based. The member said that once a party is in the system, the system brings all the documents related to the party together under the party's name. The member said it is important to have certain identifying information social security number, birth date, address in the system to make sure that the information being brought together belongs to the appropriate party. The member said that the prosecutor reference list requirement is one way to bring this
information into the system.
A member said the best way to get this information into the system is to get it directly from the defendant at the initial appearance. A member replied that it would be best to get the information before the case is opened so that the computer system can start tying all the information about the defendant together right away.
A member said that the clerks are mishandling reference lists by requiring prosecutors to create a reference list as required by the rule and to also provide a redacted copy of this list. A member said this is a misinterpretation of the rule filing a reference list under seal is an alternative to redaction.
A member said that it is not a universal practice for the court to inquire about social security numbers, birth dates and addresses at the initial appearance. The member said this is generally not being done in Cass County.
A member said that if a prosecutor cannot obtain all the information required to be part of a reference list before the case begins, the prosecutor can amend the list later. A member replied that perhaps the defense attorneys would be most likely to have access to the most accurate information and they should be required to file the list.
Mr. Plambeck MOVED a substitute motion: instead of deleting the text at page 121, lines 43-44, retain the text and add at line 44 after "includes" the words "if available" and at the end of the line delete "street address" and add "any other information subject to redaction under Rule 3.4 (a) which is included in a charging document or supporting affidavit." Mr. Quick seconded.
A member said that the Committee had decided to keep the exemption making the charging document not subject to redaction. The member said that the proposed language made it sound as if the charging document was subject to redaction. The member said the amendment would cause confusion.
By unanimous consent, the motion language was changed to delete the language referring to the charging document and supporting affidavit.
A member said that the rule said nothing about when the reference list was supposed to be filed by the prosecutor. A member replied that the clerks expect the reference list to be filed with the charging document. A member said it would be difficult to provide all the requested information at that time.
A member said that the purpose of the rule was privacy protection. The member said that the purpose of the language requiring prosecutors to file a reference list was not privacy protection but to have a particular document that would provide identifying information about a defendant. The member said this requirement was troubling because it did not fulfill the purpose of the rule.
A member said it would perhaps be better for the court system to gather information about defendants through some other medium than through Rule 3.4. The member said that it would make sense for the court system to create a form so that the courts could gather information necessary for the proper operation of the new computer system.
A member said that prosecutors do not realistically have access to the information requested under the reference sheet requirement. The member said that in a bad check case, for example, a prosecutor years ago would have been able to get the defendant's social security number off the check. Now, this information is more private and the prosecutor with a bad check in hand would know only the defendant's name and address. A member said it is important to gather information about defendants, but that prosecutors are not in the best position to obtain this information.
The substitute motion FAILED.
A member asked, if the prosecutor reference sheet requirement was deleted, where would the courts obtain the needed information about defendants? A member said that, once the new computer system comes online, the court administrator could distribute forms statewide for defendants to fill out, requesting the required information. At the initial appearance, the court could confirm the information was provided. A member replied that this would delay matching up defendants to their past records.
A member said the sheriffs or law enforcement could collect the information. A member said that, regardless who collected the information, there needed to be some requirement that it be collected. The member said if the prosecutor reference sheet language was deleted as proposed, there would be no requirement to collect the information.
A member asked whether this was a concern that should be addressed in Rule 3.4. A member replied that it was through Rule 3.4 that the court said it did not want this information coming into the system in public documents. The member said, however, that the court still needed the information that was being excluded or redacted because of Rule 3.4.
A member said this identifying information should be available on the warrant for
arrest if possible to make certain that the right person is arrested.
The motion to delete CARRIED.
Mr. Mack MOVED to add a requirement at page 119 in subdivision (a) that, in a criminal case, the birth date of a defendant be stated if available. Motion FAILED for lack of a second.
A member suggested that an exception be added to subdivision (b) of the rule allowing the birth date of a criminal defendant to be used without redaction. A member said that arrest or search warrants were already exempt from the redaction requirement so a defendant's birth date could be included in these documents already if desired.
A member said that some courts were already gathering information from defendants such as birth dates and social security numbers and if the Supreme Court decided it needed this information to be brought into the system, it could require all courts to collect it as an administrative matter.
Staff said that the next proposed change to the rule involved elimination of the waiver of protection at page 121, lines 46-47. Under the waiver a party who failed to properly redact its own documents would waive any protection under Rule 3.4 for the unredacted information. Staff said that current practice in some courts was to return improperly redacted documents to the filing party, which makes the waiver provision less useful.
A member said that some clerks had been ordered to stop the practice of returning improperly redacted documents and to file them. A member said the rule could be changed to make it clear that clerks were allowed to return improperly redacted documents without filing them. The member said once the district courts move to electronic filing, the clerks will be able to review submitted documents before filing and will be able to immediately inform the filer if the document is not acceptable.
A member said barring the return of an improperly redacted document before it is filed can create problems with the system: the document will have to be given a docket number and, if the court decides to strike the document, it cannot be easily returned for correction.
Judge Nelson MOVED to retain the waiver language at page 121, lines 46-47. Mr. Quick seconded.
A member said that the waiver provision was made part of the rule to make it clear that if a party files a document containing information that should have been redacted, the
party must be held responsible. The member said the main problem with this provision is that it does not account for a party filing another party's personal information without proper redaction. The member said that if a party files its own tax returns or other documents containing personal information without proper redaction, the party should bear the consequences.
The motion CARRIED.
A member said it is important to make it clear that a judge has the authority to order the clerk to return a document to a party before filing without the need to have the document filed and then ordered stricken. The member said that having the ability to turn back documents to parties was particularly useful when a party has established a pattern of failing to properly redact documents.
A member said that sometimes documents need to be filed to meet a deadline. The member said that giving the clerks the ability to return documents that a party believed had been filed (and that had met a deadline) would create problems. The member said the proper approach is to file documents that appear to meet the filing requirements, and if these documents later turn out to be improperly redacted, the court may order them stricken.
A member said the court should have the power to order that a document not be filed in the first place. A member replied that there is no way to know that a document presented to the clerk is deficient and not worthy of filing without an examination of the document. The member said it is appropriate to allow filing of presented documents, which the court and other parties can then examine.
Judge Schmalenberger MOVED to amend page 121, line 49, inserting after "to be" the words "returned to the party to be" and inserting after "If the" the words "document has been filed, and an." Mr. Hoy seconded.
A member said the proposed amendment was acceptable because it did not require clerks to return documents before filing but instead allowed judges to issue an order on returning documents. The member said clerks should not be put in the position of deciding whether or not to file a document they have been given.
The Committee discussed the wording of the proposed amendment. By unanimous
consent, the motion was amended so that page 121, lines 48-49, would read: "If a party fails
to comply with this rule, the court on motion of another party or its own motion, may order
the pleading or other document to be returned to the party for reformation prior to filing,
reformed with an extension of time to complete the filing within any applicable
A member pointed out that there is no deadline in the proposed language for a party to request an extension. A member said whether a request for extension was reasonable would need to be decided by the court.
The motion CARRIED.
Staff said Mr. Ganje had raised an issue regarding the redaction of materials contained in confidential files. Staff said new language was proposed for the Rule 3.4 explanatory note to address this issue, but that Mr. Ganje had questioned whether the proposed language was adequate. The Committee review Mr. Ganje's written comments.
A member said the only files that are actually "sealed" are adoptions. The member said mental health files, for example, are "red files" and are confidential. The member said that the explanatory note language seemed to make it clear that material in confidential files does not need to be redacted because the whole file is non-public and confidential.
A member said that Mr. Ganje's concern seemed to be that there may be a confidential file, as in a paternity case, in which the documents are not redacted. Later, someone may take a document from that file, such as the judgment, and make it part of a non-confidential file. The member said Mr. Ganje's question was if the judgment would then have to be redacted.
Mr. Hoy MOVED to amend the explanatory note at page 121, line 58, adding the words "Unless also filed in a non-restricted file," at the beginning of the second sentence of the note. Judge McLees seconded.
The motion CARRIED.
A member said that 99 percent of the problems related to the handling of confidential personal information would be eliminated by making divorce cases confidential. The member said there would be minimal need for Rule 3.4 if divorce files were "red files." The member said the divorce files in New York are confidential.
Staff drew the Committee's attention to a letter from Joel Skjed that had been directed to the Committee. Staff said that the issues raised by Mr. Skjed were representative of those raised by many citizens who had contacted the courts about their objections to the large quantity of case information now available online.
A member said there was a particular issue relating to deferred imposition of sentence that illustrated the complexity of putting case information online. The member said that if
someone gets a deferred imposition of sentence, the case is dismissed and the file is sealed. The member said, on the other hand, that someone can be charged with murder and have the charge dismissed because it is baseless, but this file would not be sealed. So, everyone can see the dismissed charge but no one can see the deferred charge. The member said there was a fairness problem with sealing deferred charges but allowing dismissed charges to be posted.
A member said one solution was to get a deferred imposition on all charges so that everything can be sealed. The member said a defendant was better off to plead guilty and get a deferred imposition of sentence than to have all charges dismissed.
A member asked whether the Committee could prepare an expungement rule. A member replied that the term "expungement" was highly disfavored. A member said that it seemed that the courts had authority to determine what records could be posted publically. A member said that 20 states have provisions that would allow for the "expungement" of criminal records, including dismissals. A member said that "sealing" may be a better word than expungement.
A member said that even deferred sentences were not private. The member said that once information becomes public in the Internet world, it stays public. A member said even if the court files were "expunged" or "sealed" in a given case, law enforcement files on the case would remain open.
A member said the public and the news media want to see the process that goes on when someone is charged with a crime. The member said that if the courts started sealing cases that are dismissed, the public would object. A member said that another approach would be to treat cases dismissed after deferred imposition the same as cases that are simply dismissed: let the record reflect that charges were made and eventually dismissed rather than sealing the file.
Mr. Plambeck MOVED to add the words "to reform" on page 121, line 50, after the word "order." Judge McLees seconded. The motion CARRIED.
Staff said Mr. Ganje had raised an issue regarding personal information in audio recordings of court proceedings. The Committee reviewed Mr. Ganje's written comments.
A member said that if a court reporter has been transcribing a proceeding and someone wants a transcript, the person has to pay for a transcript and the court reporter can redact personal information from the transcript as part of the preparation process. The member said when a court recorder makes an audio tape of a proceeding, anyone can purchase a copy of the recording, which has not been redacted.
The member said some states do not allow audio copies to be made of court proceeding recordings. Instead, they will release only a written transcript of the recording, which will be more expensive than the audio copy and take more time to produce. A member said this would be a real problem in North Dakota, especially for counsel who only want to hear a brief part of the proceeding.
A member said there is voice recognition software available that will allow an audio recording to be searched for specific terms.
The Chair suggested that staff be directed to research the issue to see what other states are doing about the audio recording issue.
A member noted that Admin. R. 41 barred the release of birth dates except for the year. The member said that, in criminal cases, defendants' birth dates should be released. Staff said that, under the language added to Admin. R. 41 applying the Rule 3.4 exemptions, a defendant's birth date in a document exempt from redaction, such as a charging document, could be released.
The motion to approve the proposed amendments to N.D.R.Ct. 3.4 and N.D. Sup. Ct. Admin. R. 41 and to send the rules to the Supreme Court CARRIED.
Judge Nelson MOVED that the proposed amendments be sent to N.D.R.Ct. 3.4 and N.D. Sup. Ct. Admin. R. 41 immediately to the Supreme Court as an emergency measure. Judge Geiger seconded. The motion CARRIED.
PARENTING PLAN RULE CLEANUP (PAGES 173-259 OF THE AGENDA MATERIAL)
Staff explained that the legislature recently passed SB 2042, which eliminated the term "custody" in the family law context and replaced it with "parenting." Staff said that Sherry Mills Moore of the Custody and Visitation Task Force requested that the Committee consider several rule amendments that would bring the procedural rules in line with the new statutory terminology.
Ms. Ottmar MOVED to approve the proposed changes and to send them to the Supreme Court immediately as an emergency measure. Judge McLees seconded
A member said the changes reflect the new legislation, which replaces "custody" in the law with references to "parenting rights and responsibilities." The member said that it was important to send the proposed changes to the Supreme Court immediately because the
amended statutes go into effect on August 1.
The motion to approve the proposed parenting rule amendments and to send them immediately to the Supreme Court as an emergency measure CARRIED.
The meeting adjourned at approximately 11:50 a.m. on May 22, 2008.
Michael J. Hagburg