MINUTES OF MEETING
Joint Procedure Committee
September 24-25, 1998
TABLE OF CONTENTS
Rule 407, N.D.R.Ev. - Subsequent Remedial Measures... 2
Rule 801, N.D.R.Ev. - Definition of Hearsay... 4
Rules 803 and 804, N.D.R.Ev. - Hearsay Exceptions... 4
Rule 3.3, N.D.R.Ct. - Change of Judge for PostJudgment Motion or Proceeding... 5
Clerk of Court Consolidation... 6
Rule 8.6, N.D.R.Ct. - Custody Investigators, Rule 8.7, N.D.R.Ct. - Guardian ad Litem, and Appendix Form B, N.D.R.Ct... 8
Rule 30, N.D.R.Civ.P. - Length of Time Allowed for Signing Depositions... 16
Global Order for Technical Amendments... 16
Change in Location of Rule 77(d), N.D.R.Civ.P. to Rule 58(d), N.D.R.Civ.P... 16
Venue in Civil and Criminal Cases... 16
CALL TO ORDER
The meeting was called to order at approximately 1:00 p.m., September 24, 1998, by Justice Dale V. Sandstrom, Chair.
Justice Dale V. Sandstrom
Honorable Wallace D. Berning
Honorable Richard M. Geiger
Honorable Gail Hagerty
Honorable Maurice R. Hunke
Honorable Lawrence A. Leclerc
Honorable Mikal Simonson
Honorable Kirk Smith
Mr. Lynn Boughey
Mr. Michael R. Hoffman
Mr. John C. Kapsner
Professor Larry Kraft
Mr. Daniel S. Kuntz
Mr. Ronald H. McLean
Ms. Patricia R. Monson
Ms. Sherry Mills Moore
Mr. James T. Odegard (9/24/98 only)
Honorable Donovan Foughty
Honorable Ronald L. Hilden
Ms. Cathy Howe Schmitz
Mr. Gerhard Raedeke
The Committee was informed meetings are scheduled for January 28-29, 1999 and May 6-7, 1999.
APPROVAL OF MINUTES (PAGES 1-16 OF THE AGENDA MATERIAL)
Mr. Odegard MOVED to approve the minutes from the April 30-May 1, 1998 meeting as submitted. Ms. Moore seconded. The motion CARRIED.
RULE 407, N.D.R.Ev. - SUBSEQUENT REMEDIAL MEASURES (PAGES 17-32 OF THE AGENDA MATERIAL)
The Committee resumed its discussion of the 1997 amendment to Rule 407, Fed.R.Civ.P. The federal amendment clarifies what the triggering event is for determining whether a remedial measure is a subsequent or prior remedial measure. The federal amendment provides the triggering event is the time of "the injury or harm" rather than the negligent act.
The Committee had differing views as to whether remedial measures occurring after the manufacture of a product but before the accident should be admissible. Ms. Monson MOVED to recommend adoption of Alternative 4, of page 31.
"Whenever, after an injury or harm allegedly caused by an event, or after a product is manufactured, measures are taken which, if taken previously, would have made the
eventinjury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligencefault, orculpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction in connection with the event. This rule does not require the exclusion of evidence of subsequent measures if offered for another purpose, such as proving ownership, control, or feasibility of
precautionary measures, if controverted, or impeachment."
Judge Hunke seconded. Alternative 4 excludes evidence of subsequent remedial measures undertaken after the manufacture of a product, instead of just prohibiting evidence of remedial measures undertaken after the "injury or harm."
Mr. Boughey MOVED to amend the Explanatory Note on page 32 with the addition of the following sentence on line 39:
"The event referred to in the rule is the date of the accident."
Judge Hagerty seconded.
Judge Smith MOVED to amend the amendment as follows:
"The event referred to in the rule is deemed to have occurred on the date of the accident."
Judge Hunke seconded. The amendment to the amendment FAILED.
Committee members questioned why an amendment to the Explanatory Note is necessary. The amendment to the rule itself already clarifies the event referred to in the rule is the date of the "injury or harm." Mr. Boughey's motion FAILED.
Committee members argued a design change should not be proof that a prior design was defective or negligent. The prior design may not have been defective at the time of manufacture.
Others stated the federal rule should be followed unless there is a compelling reason not to follow the federal rule. A subsequent design change should not automatically be excluded from evidence. For instance, a subsequent design change should be admissible as to a manufacturer's duty to warn prior purchasers. The Committee was afraid adoption of Alternative 4 could change substantive law.
The motion to recommend adoption of Alternative 4 FAILED.
Mr. McLean MOVED to recommend adoption of Alternative 2 on page 27. Judge Geiger seconded. Alternative 2 tracks the 1997 federal amendment, except the word "fault" is substituted for the word "negligence" for consistency with North Dakota's comparative fault statutes. The motion CARRIED by a vote of 13 to 3.
RULE 801, N.D.R.Ev. - DEFINITION OF HEARSAY (PAGES 33-56 OF THE AGENDA MATERIAL)
Before an admission by a party-opponent may be admitted into evidence, the court must make preliminary factual determinations to insure the statement properly fits within Rule 801's definitions of an admission by a party-opponent. The 1997 amendment to Rule 801, Fed.R.Ev., follows the holding of Bourjaily v. U.S., 483 U.S. 171 (1987) by providing the court must consider the hearsay itself when making its preliminary determinations for admissibility of an admission by a party-opponent.
Mr. McLean MOVED to recommend adoption of Alternative 1 on page 45, which tracks the 1997 federal amendment. Ms. Monson seconded. The Committee did not think the use of hearsay should be expanded by making the preliminary factual determinations easier to meet. The motion FAILED.
The Committee considered whether to recommend an amendment preventing a court from "bootstrapping" the admissibility of the evidence, by prohibiting the court from considering the admission itself when making its preliminary factual determinations for admissibility. The Committee did not think it was necessary to codify into a rule the holding of State v. Lind, 322 N.W.2d 826 (N.D. 1982). The Committee decided the Supreme Court should be allowed to decide for itself in a judicial opinion whether to follow the lead of the United States Supreme Court in Bourjaily v. U.S., 483 U.S. 171 (1987) or to reaffirm its holding in State v. Lind, 322 N.W.2d 826 (N.D. 1982).
RULES 803 AND 804, N.D.R.Ev. - HEARSAY EXCEPTIONS (PAGES 57-75 OF THE AGENDA MATERIAL)
The Committee considered whether to follow the 1997 federal amendments by transferring the catch-all hearsay exception in Rules 803 and 804 to a new Rule 807. The Committee also considered whether to adopt the new federal hearsay exception entitled "Forfeiture by Wrongdoing." The new hearsay exception provides that a party forfeits the right to object on hearsay grounds, when the party's own wrongdoing procured the unavailability of the declarant as a witness.
Judge Hunke moved to adopt Rule 803 as proposed on page 59, Rule 804 as proposed on page 67, and Rule 807 as proposed on page 74. Ms. Monson seconded. The motion CARRIED by a vote of 13 to 2.
RULE 3.3, N.D.R.Ct. - CHANGE OF JUDGE FOR POSTJUDGMENT MOTION OR PROCEEDING (PAGES 76-93 OF THE AGENDA MATERIAL)
The Committee considered a request from Judge Graff for a rule superseding N.D.C.C. § 27-05-27. The statute prohibits a judge from amending an order or judgment of another judge. Judge Graff wants a rule allowing a judge to consolidate proceedings in order to amend the conditions of more than one misdemeanor judgment, even if entry of judgment was ordered by a different judge. For instance, cases may need to be consolidated so a defendant may be put on a single payment plan.
The Committee noted Alternative 4, on page 90, is different than the other proposals, because it only authorizes a different judge to act if the defendant "violates a condition." The other alternatives do not contain the same limiting language as to when a different judge may amend a judgment.
Committee members stated a different judge will act now when the original judge is assigned to hear civil cases. The statute allows a different judge to act when the original judge is unable to act.
Judge Hunke MOVED to adopt proposed Rule 3.3, Alternative 3 on page 89, and the proposed amendment to Rule 32 on page 90. Mr. Odegard seconded.
The Committee discussed whether the rule should be limited to misdemeanors. Committee members stated in felony cases, the sentencing judge has more involvement. Misdemeanors are different because the volume is much greater than with felonies. Judge shopping would be more likely with felonies. The Committee decided not to expand the rule beyond misdemeanors.
On page 89, Mr. Kuntz MOVED to amend lines 16-19 as follows: "A different judge from within the same judicial district may amend or enforce
a an unsatisfied condition in a criminal judgment or order entered upon a verdict or plea of guilty to a misdemeanor." Judge Simonson seconded.
Committee members stated the word "unsatisfied" implies monetary aspects. A condition includes other things. Also, at times, judgments need to be amended to do positive things where there is not a violation of a condition. For instance, a defendant's community service requirements may need to be changed to allow the defendant to accept a job offer. The motion FAILED.
Judge Simonson MOVED to delete lines 14-15 as follows: "
A different judge may hear a postjudgment motion or proceeding as provided in N.D.C.C. § 29-15-21(3)." Judge Leclerc seconded. Committee members said the reference to the statute does not serve
a purpose. Others stated the reference to N.D.C.C. § 29-15-21(3) should be in the rule because the reference is in the statute, N.D.C.C. § 27-05-27, which the rule would supersede. The motion FAILED.
The Committee concluded there is not a need to adopt both Alternative 3, on page 89 and Alternative 4, on page 90. Alternative 3 covers the subject. Without objection, the Committee deleted the portion of the main motion adopting Alternative 4 in addition to Alternative 3.
The Committee questioned what happens when no judge within a district can hear the case. Other members stated N.D.C.C. § 27-05-22 addresses when a judge from outside the district can act.
Judge Hagerty MOVED to amend paragraph 3 of Alternative 3 on page 89 as follows:
"In non-felony cases, a
Adifferent judge from within the same judicial district may amend or enforce a condition in a criminaljudgment or order entered uponon a verdict or plea of guilty to a misdemeanor."
Judge Smith seconded. The purpose of the amendment is to clarify paragraph (3) does not apply to felonies, but it does apply to infractions and traffic offenses. The rule is still limited to criminal cases, because the judgment or order must be entered upon a verdict or plea of guilty. Judge Hagerty's motion to amend CARRIED.
The motion to adopt Alternative 3 on page 89 as amended CARRIED by a vote of 12 to 4.
CLERK OF COURT CONSOLIDATION (PAGES 94-133 OF THE AGENDA MATERIAL)
The Committee considered changes that may be needed to accommodate clerk of court consolidation. The purpose of the discussion was not to propose changes to the Supreme Court, but to give thought to changes that may be needed if the Legislature does act.
With consolidation, Committee members thought there would still be a county of venue. Each county would simply be assigned to a particular clerk of court. The clerk will serve the county of venue even if the clerk of court is located in a different county. Others questioned whether there will even be a clerk of court office, if the clerk of court is an employee of the court.
The Committee reviewed Rule 5, N.D.R.Civ.P., on page 99. Subdivision (e) may need amending, because it indicates filing is in the office of the clerk of court in which the action is pending. With consolidation, there may not be a clerk of court in the county where the action is pending.
The Committee reviewed Rule 10, N.D.R.Civ.P., on page 101. Currently, the rule requires the caption to set forth the county in which the action is "brought." The amendment changes the word "brought" to "venued," because the case may not be venued in the county where the action is brought if the clerk of court's office is in a different county than the county of venue.
The Committee reviewed Rule 27, N.D.R.Civ.P., on page 104. The amendment provides for filing with the "clerk of district court" rather than the "court." The amendment uses the phrase "serving the county" because the clerk of court's office may not be "in" the county.
The Committee reviewed Rule 45, N.D.R.Civ.P., on page 108. The amendment provides a subpoena must be issued in the name of the court for the county in which action is "venued" rather than "filed" because the place of filing may be different than the county of venue.
The Committee reviewed Rule 5, N.D.R.Crim.P., on page 112. Currently, Rule 5 requires the complaint to be filed in the county where the offense was allegedly committed. The amendment provides for filing in the clerk of court's office serving the county; because, after consolidation, there may not be a clerk of court's office in the county where the offense was allegedly committed.
The Committee reviewed Rule 20, N.D.R.Crim.P., on page 117. Rule 20 concerns a transfer of a case to the county where the defendant is being held. Currently, the rule requires the clerk of court in which the action is pending to transmit the papers. The amendment clarifies that it is the clerk of court "serving" the county rather than the clerk of court "in" the county who must transmit the papers.
The Committee reviewed Administrative Rule 6, on page 121. Administrative Rule 6 expresses the intent of the Supreme Court for people to receive judicial services in their own county. The amendment qualifies the language by providing an exception for clerk of court's services.
The Committee reviewed Administrative Rule 9, on page 123. Administrative Rule 9 requires the State Court Administrator to file a jury selection plan. Currently, the rule provides for filing the jury selection plan with the clerk of court "of" each
county. Because each county may not have a clerk of court, the amendment refers to the clerk serving the county. The Committee questioned, under court consolidation, whether the jury should be drawn from the entire district or the county where the offense is committed.
The Committee considered Administrative Rule 13, on page 124. Administrative Rule 13 currently refers to the clerk of court "of" each county. The proposed amendment refers to the clerk of court "for" the county, because with consolidation the clerk may be located in another county.
The Committee considered Administrative Rule 19, on page 129. The amendment changes the phrase "clerk of district court 'in' each county" to the phrase "clerk of district court 'for' each county."
The Committee noted, the consensus council has identified numerous statutes needing amendment to accommodate clerk of court consolidation. It was suggested the rule amendments should use the word "serving" the county rather than the word "for" the county. The word "serving" makes it clear what the amendments are intended to accomplish.
RULE 8.6, N.D.R.Ct. - CUSTODY INVESTIGATORS AND RULE 8.7, N.D.R.Ct. - GUARDIAN AD LITEM (PAGES 134-168 OF THE AGENDA MATERIAL)
The Committee considered proposals from the Family Law Task Force for adoption of new Rules 8.6 and 8.7, N.D.R.Ct. Rule 8.6 would govern lay guardians ad litem. Rule 8.7 would govern law-trained guardians ad litem. The proposals are intended to replace Rule 4.1, N.D.R.Ct., which currently governs guardians ad litem.
The intent of the Family Law Task Force in drafting the proposed rules is to distinguish between a law-trained guardian ad litem and a lay guardian ad litem by defining the responsibilities, qualifications, and ethical considerations of each. Currently, confusion results because the role of a law-trained guardian ad litem and a lay guardian ad litem are not clearly defined. The rules are needed to prevent non-lawyers from being put into a situation where they end up practicing law.
Committee members suggested giving deference to the Joint Task Force on Family Law. The Committee noted the rule does not require the use of a custody investigator or a guardian ad litem. The rules simply provide a procedure for implementation of the statutes. In addition, the Committee noted, the survey conducted by the Family Law Task Force indicates 74% of judges believe there should be mandatory minimum training requirements.
Some Committee members argued, a lawyer should not serve as a guardian ad litem. Others said it is a nomenclature issue. Under the proposals, a lay guardian ad litem will be referred to as a custody investigator. The work of a custody investigator is not the type of work required of an attorney. Custody investigators will generally be appointed, but when there is a need for legal representation, a guardian ad litem will be appointed.
The Committee discussed whether a person can act as both a custody investigator and a guardian ad litem. The Committee thought it was possible, but generally two different people would be used. A guardian ad litem is intended to be used in complicated cases where there is a need for someone to file motions and take legal positions as to the best interests of the child.
Some Committee members did not like the idea of imposing qualifications for a custody investigator in a rule. Judges are capable of selecting qualified people. In addition, in some counties it might be difficult to find someone who meets the qualifications specified in the rule. Additional expense will be added to the proceeding if the custody investigator has to be obtained from a larger city.
Committee members also expressed concern about how complicated specifying qualifications makes the process. Who is going to police the process to ensure custody investigators are properly qualified? How will the district court know if a particular custody investigator is qualified according to the rule? The rule will create work by requiring certification by the presiding judge and by requiring a listing of qualified custody investigators. Cost is being added to the process.
It was suggested an attorney should have 10 days in which to bump the person selected. Others stated that would delay the process.
Some members did not think a person should act as a custody investigator if they do not meet the qualifications of the rule. Even now, in rural areas, qualified investigators are coming out of the population centers. There will be a large enough group of custody investigators qualified under the rule. Availability of custody investigators will not be a problem.
It was suggested there should be a delay after adoption of the rule before it becomes effective to allow time for training. Otherwise, there will be a period of time after the rule is adopted, but before people are certified.
Mr. McLean MOVED to adopt proposed Rule 8.6, on page 149 and proposed Rule 8.7 on page 158, and to repeal Rule 4.1 as shown on page 163. Ms. Monson seconded.
Mr. Boughey MOVED to amend lines 10-12, on page 149 as follows:
"Preferred Qualifications. To qualify as a custody investigator under N.D.C.C. § 14-09-06.3, a person
Judge Smith seconded. The intent of the motion is to make the qualifications a preference and not a requirement. The preferred qualification language leaves it up to the judge who is appointed as a custody investigator, but as least some suggested standards are set. Mr. Boughey's motion CARRIED.
Judge Leclerc MOVED to delete subdivision (a) and to start subdivision (b) with the following sentence:
"A custody investigator under N.D.C.C. § 14-09-06.3, shall:"
The motion eliminates the qualifications in the rule for a custody investigator. Mr. Kapsner seconded. The motion FAILED.
On page 149, the Committee reviewed subdivision (a)(1). The Committee noted the requirement for a custody investigator to have "an Associate Degree in an academic field related to child care or children's services" includes degrees in elementary education, child development, social work, psychology, etc. The Committee noted the requirement for five years experience in the delivery of child care could be met by being a day care provider, social worker, grandmother, parent, etc.
The Committee reviewed the requirements for training in subdivision (a)(2) and (3) on page 149. The Committee questioned whether the training program is to be approved by the Supreme Court or the district court. It was stated, the intent is for the Supreme Court to approve a program as it has done with domestic violence advocates. Members pointed out, under N.D. Sup. Ct. Admin. R. 34, the Supreme Court does not approve the curriculum for certification as a domestic violence advocate. The curriculum is provided by the North Dakota Council on Abused Women's Services subject to the approval of a committee.
Mr. Kuntz MOVED to delete the phrase "in a court-approved program" on lines 20, 23, and 24. Judge Smith seconded. The Committee did not think there was a mechanism for obtaining court-approval of the program. The motion CARRIED. As amended, custody investigation training is a preferred qualification. The district court can review the training of the custody investigator and determine whether the training is sufficient. District court judges will have discretion.
On page 152, Mr. Kapsner MOVED to note in the Explanatory Note that Rule 8.6, supersedes N.D.C.C. § 14-09-06.3(1). Judge Hagerty seconded. Committee members argued Rule 8.6, does not conflict with the statute, because the rule only provides for preferred qualifications. The qualifications are not mandatory. In addition, the statute does not provide an exclusive list as to who may be designated as a custody investigator. The motion FAILED.
The Committee reviewed lines 48 and 49, on page 150 which require custody investigators to obtain necessary authorizations for release of information. The Committee questioned whether the rule should provide for the issuance of an order requiring disclosure of information to a custody investigator. The Committee discussed the difficulties and procedure for obtaining release of psychiatric, drug and alcohol treatment records. The Code of Federal Regulations contains specific provisions governing the release of psychiatric, drug and alcohol treatment records. Others stated a court order should not be required by rule, because the order will not be necessary in all cases. What is needed is training for custody investigators, so they know how to get proper authorizations for release of information. The rule should be left as it is.
Mr. Boughey MOVED to amend subdivision(b)(8) on page 151 as follows:
"(8) prepare a report regarding the child's best interests, including conclusions and recommendations and the facts upon which they are based, which must include a listing of every person who provided any information, and a listing of all records reviewed by the investigator;"
Judge Hunke seconded. The Committee noted N.D.C.C. § 14-09-06.3(3) provides "The investigator shall make available to any such counsel or party the complete file of data and reports underlying the investigator's report and the names and addresses of all persons whom the investigator has consulted."
Others stated, the statute does not require such information to be contained in the custody investigator's report. Committee members said, there are times when the custody investigator does not want to reveal information. Such information should not automatically be in the report in all cases. Flexibility is needed. By not having the rule require the information to be in the custody investigator's report, the custody investigator has time to get protection if needed. Mr. Boughey withdrew his motion by unanimous consent.
The Committee discussed Rule 8.7, on page 158. Mr. Kuntz MOVED to delete the phrase "court-approved" on line 15. Mr. Kapsner seconded. The motion CARRIED.
Judge Leclerc MOVED to delete subdivision (b) on page 158 because a lawyer is a lawyer is a lawyer. Mr. Kapsner seconded.
Committee members argued additional training should not be required for each specialized area in which a lawyer practices. Additional requirements should not be added to the requirements for a law school education and continuing legal education. For instance, if a tax lawyer is qualified to represent a person who may go to jail for life, why should not the same person also be qualified to represent the best interests of a child as a guardian ad litem. If the attorney does not have the necessary background, the attorney should not accept the case and the judge should not appoint the attorney as a guardian ad litem. Furthermore, a judge might appoint someone just for a narrow purpose where specialized knowledge is not necessary. If attorneys have to have additional specialized training, then judges should also have to have additional specialized training.
Others said, just because someone has a law degree does not mean they know anything about being a guardian ad litem. The guardian ad litem training may satisfy CLE requirements. The specialized training will make attorneys aware of such things as developmental issues, parental alienation, and appropriate guidelines for visitation at different ages. The training would address things unrelated to the legal aspects of the case.
Judge Leclerc's motion FAILED by a vote of 5 to 8.
In subdivision (b) on page 158, concern was expressed how attorneys would get 18 hours of training completed before the effective date of the rule. Judge Hunke MOVED to amend subdivision (b) as follows:
"(b) Training Requirements. To be eligible for appointment as a guardian ad litem, an attorney must have completed 18 hours of guardian ad litem training
within three years prior to the appointment. To remain eligible to be appointed as guardian ad litem, an individual shall complete an additional 18 hours of guardian ad litem-related training every 3 years."
The intent is to allow the initial 18 hours to have been obtained at anytime. The Committee thought most current guardians ad litem would meet the initial 18 hour training requirement. Judge Simonson seconded. The motion CARRIED.
The Committee questioned who will verifying the attorney meets the required 18 hours of training. It was suggested that maybe the attorney will have to file an affidavit or that lists will be maintained of attorneys who meet the requirements.
On page 158, Mr. Boughey MOVED to change the word "must" on line 14 to "should." Judge Leclerc seconded. The motion FAILED by a vote of 6 to 8. Mr. Boughey moved to amend line 22 by changing the word "must" to the word "should." Judge Smith seconded. The motion FAILED.
The Committee discussed whether a guardian ad litem should be required to be an attorney. Committee members stated, subdivision(e) makes it clear a guardian ad litem is appointed to do lawyer work. The Committee further noted there is a distinction between representing the child and the best interests of the child. Section 14-09-06.4, N.D.C.C., provides a guardian ad litem is to advocate the child's best interests. When an attorney represents a child's best interests, the attorney can disregard the child's wishes. The child could also be represented by an attorney.
Committee members stated the rule makes an attorney act as both a social worker and an attorney. Committee members stated an attorney should not act as a guardian ad litem. A lawyer should not be turned into a social worker. A lawyer should only come into the case when the assistance of a lawyer is needed.
Others said it is helpful to have an attorney act as a guardian ad litem, otherwise information regarding the child will not be developed for the court to hear. A lay person does not understand what the judge needs or have the ability to present the information in court.
The Committee reviewed lines 100-106 on page 161. The Committee questioned whether a guardian ad litem has a duty of confidentiality as to the child. Committee members stated, a guardian ad litem has obligations overriding the attorney's relationship with the child. The guardian ad litem statute, N.D.C.C. § 14-09-06.4, provides a guardian ad litem is to serve as an advocate of the child's best interests. The best interests of the child may be different than the wishes of the child.
The Committee discussed whether a guardian ad litem has the same duty of confidentiality with the child as an attorney for the child. The Committee was unsure how the attorney-client privilege relates to a guardian ad litem. Committee members questioned how an attorney can act as an attorney and not have a duty of confidentiality.
Judge Geiger MOVED to table the discussion and have the Family Law Task Force review the issue of confidentiality and
report back to the Committee on the issue. Others stated, the Family Law Task Force is only acting on a stand-by basis. The motion FAILED for lack of a second.
The Committee continued discussing whether a guardian ad litem has an attorney-client relationship with the child and whether the rules of confidentiality apply. Mr. McLean MOVED to amend line 62 by adding the following sentence: "A guardian ad litem does not have an attorney-client relationship with the child." Mr. Kapsner seconded. Some argued, guardians ad litem should not be required to keep communication with the child confidential. The rule should be made clear to prevent a guardian ad litem from violating the Rules of Professional Conduct. Mr. McLean MOVED to amend his amendment to provide: "A guardian ad litem is not bound by North Dakota Rule of Professional Conduct, Rule 1.6." Mr. Kapsner seconded.
Committee members questioned the relationship between a guardian ad litem and the child. Committee members thought with certain aspects there should be confidentiality. Committee members thought the question is already addressed by the Rules of Professional Conduct. This is not a new question as guardians ad litem have been used for sometime.
Committee members stated they did not think an amendment is needed. Rule 1.6, N.D.R. Prof. Conduct, addresses confidentiality and Rule 1.14, N.D.R. Prof. Conduct, addresses representation of a client under a disability. The Committee noted paragraph 7, on page 161 also addresses confidentiality. Mr. McLean's amendment FAILED.
On page 160, Mr. Hoffman MOVED to amend proposed Rule 8.7 (d)(1) as follows:
"A guardian ad litem shall be the attorney for the child and advocate the best interests of the child as to legal custody, physical placement, visitation, and support. A guardian ad litem shall function independently, in the same manner as an attorney for a party to the action, and, consistent with the Rules of Professional Conduct, shall consider, but not be bound by, the wishes of the child or others as to the best interests of the child."
Mr. Kapsner seconded.
Committee members said, a guardian ad litem has a dual role to advocate for the child and the child's best interests. The proposed amendment prevents a guardian ad litem from being called
as a witness by making the guardian ad litem the attorney for the child. Committee members stated, when you represent a child or someone with a disability you implicitly represent both the child and the child's best interests.
Committee members questioned what happens when a child informs the guardian ad litem of sexual abuse, but the child still expresses a preference to stay with the abusive parent. The Committee questioned whether the guardian ad litem can disclose the sexual abuse and represent the best interests of the child. The Committee concluded a guardian ad litem has a client under a disability and Rules 1.6 and 1.4, N.D.R. Prof. Conduct, govern.
Mr. Hoffman's motion CARRIED.
The Committee voted on the main motion with the amendments made by the Committee to adopt Rule 8.6, on page 149, Rule 8.7, on page 158, and to repeal Rule 4.1, on page 163. The motion CARRIED by a vote of 13 to 1.
The Committee reviewed Appendix Form B, on page 166. Judge Hagerty MOVED to adopt proposed Appendix B.
The Committee noted the provisions in subdivision (C) are not necessarily the basis for calculating income under the child support guidelines. It was explained the purpose of subdivision (C) is just to give net income, not net child support income. The child support guidelines were not incorporated into the form because they change.
The form is intended to be preliminary. It also does not matter the form does not differentiate between who owns which assets. The purpose of the form is to get a general view as to what the parties have available to them. The form is to be used for obtaining interim relief. The other side can take issue with the information supplied.
Judge Simonson MOVED to amend by inserting the phrase "Total Deductions" between lines 60-61. Judge Geiger seconded. It is easier for judges if the deductions are totaled. The motion CARRIED. Mr. Boughey MOVED to insert the phrase "Total Assets" on line 33 and the phrase "Total Liabilities" on line 46. Judge Geiger seconded. The motion CARRIED.
Mr. Boughey MOVED to number the form in chronological order like Appendix E wherever an answer is to be given. The purpose of chronological numbering is to make it easier to identify the provisions in the record. Mr. Smith seconded.
The motion to adopt Appendix B CARRIED.
RULE 30, N.D.R.Civ.P. - LENGTH OF TIME ALLOWED FOR SIGNING DEPOSITIONS (PAGES 169-172 OF THE AGENDA MATERIAL)
The Committee reviewed a proposal to extend the period of time for signing a deposition from 10 to 30 days. The Committee noted, the 30 days provided in Rule 30, Fed.R.Civ.P, works fine. Ten days is too short of time. Judge Hunke MOVED to amend Rule 30 as proposed. Judge Smith seconded. The motion unanimously CARRIED.
GLOBAL ORDER FOR TECHNICAL AMENDMENTS
The Committee noted the forms in the rule book have a year 2000 problem. Many of the forms say "19__." It was suggested the form should be changed in the next printing of the rules to simply have the year signified by a "______." The Committee also noted the source notes refer to the Procedure Committee, instead of the Joint Procedure Committee. It was suggested, the source notes should refer to the Joint Procedure Committee. The Committee seemed to agree a global order should be issued providing for the publishers to make those changes.
CHANGE IN LOCATION OF RULE 77(d), N.D.R.Civ.P., TO RULE 58(d), N.D.R.Civ.P. (PAGES 173-182 OF THE AGENDA MATERIAL)
The Committee considered a request to transfer subdivision (d) of Rule 77 to Rule 58 to make it easier to locate. Judge Hunke MOVED to adopt the proposed changes to Rule 58, 77, and the Explanatory Note to Rule 4, N.D.R.App.P. Judge Simonson seconded. The motion CARRIED.
VENUE IN CIVIL AND CRIMINAL CASES (PAGES 183-218 OF THE AGENDA MATERIAL)
The Committee reviewed the new statutes on venue which were enacted during the last legislative session. The Committee questioned whether venue is substantive or procedural. The Committee noted Rule 21, N.D.R.Crim.P., superseded N.D.C.C. § 29-15-01, which formally governed venue in criminal cases. The Committee seemed to conclude venue is procedural.
The Committee discussed its concerns about the statutes on venue. First, N.D.C.C. § 28-04-09, the statute addressing a change in the place of a civil pretrial proceeding, refers to motions to suppress evidence. Motions to suppress evidence are generally made in criminal cases, not civil cases.
Second, in criminal cases, the statute governing a change in the place of trial, N.D.C.C. § 29-01-33, allows either party to prevent a change in location of trial simply by filing an objection. If an objection is filed, a literal application of N.D.C.C. § 29-01-33 means the place of trial cannot be changed in a criminal case under Rule 21, N.D.R.Crim.P., even if the defendant cannot obtain a fair and impartial trial in the original county of venue.
Third, Committee members stated the statute governing the place of trial in civil cases, N.D.C.C. § 28-04-10, needs to be changed. A party should be allowed to object after notification of the place of trial, not just after notification of the assignment of the judge. Notification of the place of trial will often be much later than notification of assignment of the judge. The parties should have 10 days after they receive notice of the place of trial to object.
Committee members stated the venue statutes are in response to court unification, which needs to be finalized before venue can adequately be addressed. Committee members stated, the Supreme Court supported the statutes on venue. The statutes are intended to provide flexibility with the reduced number of judges.
Committee members thought the Supreme Court should recommend amendment of the statutes. Other members expressed concern about asking the Supreme Court to supersede statutes which the Court supported.
Committee members stated the statutes governing venue do not make any sense as they are now written. Judge Hunke MOVED to postpone consideration of venue until after the next legislative session. Judge Smith seconded. The motion CARRIED.
The meeting adjourned at approximately 12:00 noon.