MINUTES OF MEETING
Joint Procedure Committee
September 22-23, 2005
TABLE OF CONTENTS
Rule 702, N.D.R.Ev., Testimony by Experts; Rule 703, N.D.R.Ev, Bases of Opinion
Testimony by Experts 2
Rule 41, N.D. Sup. Ct. Admin. R., Access to Judicial Records 6
Rule 3.1, N.D.R.Ct., Pleadings 16
Rule 11, N.D.R.Crim.P., Pleas 17
Rule 46, N.D.R.Crim.P., Release From Custody 18
Form 9, N.D.R.Crim.P., Conditions for Sentence to Probation, Deferred or Suspended Sentence 20
Rule 11.2, N.D.R.Ct., Withdrawal of Attorneys 21
Order 16, N.D. Sup. Ct. Admin. R., Electronic Filing Pilot Project for the District Courts 22
Rule 3, N.D.R.App.P., Appeal as of RightHow Taken 25
Rule 4, N.D.R.App.P., AppealWhen Taken 25
Rule 10, N.D.R.App.P., The Record on Appeal 27
Rule 32, N.D.R.App.P., Form of Briefs, Appendices and Other Papers 27
Rule 23, N.D.R.Civ.P., Class Actions 27
CALL TO ORDER
The meeting was called to order at 1:00 p.m., on September 22, 2005, by the Chair, Justice Dale Sandstrom.
Justice Dale V. Sandstrom, Chair
Honorable Georgia Dawson (Thurs. only)
Honorable Donovan Foughty
Honorable M. Richard Geiger
Honorable Gail Hagerty
Honorable Debbie Kleven
Honorable Allan L. Schmalenberger
Mr. John C. Kapsner
Mr. Daniel S. Kuntz (Thurs. only)
Mr. Galen J. Mack
Ms. Jeanne L. McLean
Mr. Ronald H. McLean
Ms. Sherry Mills Moore
Mr. Steven W. Plambeck
Mr. Bruce D. Quick (Thurs. only)
Ms. Cathy Howe Schmitz
Mr. Michael G. Sturdevant (Fri. only)
Honorable David W. Nelson
Honorable Thomas J. Schneider
Honorable Mikal Simonson
The Chair set out the schedule for the meeting. The Chair also welcomed a new Committee member, Mr. Bruce Quick of Fargo.
APPROVAL OF MINUTES
Judge Geiger MOVED to approve the minutes. Ms. Moore seconded. The motion to approve the minutes CARRIED unanimously.
RULE 702, N.D.R.Ev. - TESTIMONY BY EXPERTS; RULE 703, N.D.R.Ev. - BASES OF OPINION TESTIMONY BY EXPERTS (PAGES 26-92 OF THE AGENDA MATERIAL)
Staff explained that the Committee had addressed proposed amendments to Rule 702 at its April 2005 meeting, but that the rule was back for a second look because the Committee did not approve the amendments to the rule by a 2/3 vote. Staff also presented an alternative Rule 702 proposal with amendments to the explanatory note only.
Mr. Plambeck MOVED to approve the amendments to Rule 702. Mr. Kuntz seconded.
A member said that if the amendment was adopted North Dakota lawyers would be required to argue federal law in trying to exclude evidence because there was no foundation of state law on the issue. The member said that the Daubert standard as originally adopted was probably sound, but that lower federal courts have interpreted the standard to be more restrictive than the Frye standard and have used it to exclude evidence that should have been admitted.
The member said the federal rule allows judges to determine what evidence is reliable in terms of scientific and technical knowledge and whether this evidence is reliably applied to the facts of the case. The member said this should be the province of the jury and that the rule takes away from the jury certain fact-finding rights. The member said that many federal courts operating under Fed.R.Ev. 702 language require evidentiary hearingmini-trials overseen by the judgeon the admissibility of expert testimony.
The member said that it would not be a good idea to adopt the federal language, especially since the North Dakota Supreme Court has avoided adopting the Daubert standard.
A member said that the existing rule language has not prevented lawyers from citing the Daubert factors in attempting to exclude evidence. The member said that judges have great discretion to exclude evidence under the current rule. The member said that if the proposed amendments were not adopted, lawyers might not feel free to seek exclusion of evidence based on the Daubert factors. The member said that some experts in criminal and domestic cases should not be allowed to testify because they base their testimony on social science rather than hard science. The member said that by leaving Rule 702 unchanged, the Committee may be leaving the door open for unreliable testimony to come in.
A member said that it was not Fed.R.Ev. 702 that created the need for pre-trial evidentiary hearings in federal court. The member said another federal rule gives judges the authority to hold hearings on the admissibility of evidence. The member said the proposed change instead would give judges more guidance on how to decide whether to admit evidence. The member said that Rule 702 was derived from the federal rule it was appropriate to amend it to match the federal rule so that judges and practitioners could obtain guidance from federal court decisions interpreting the rule.
The member said the Daubert decision provided a helpful and nonexclusive list of factors for courts to consider when evaluating expert evidence. The member said the proposed amendment would provide additional useful guidance.
A member responded that it would be hubris on the Committee's part to adopt the amendment when the Supreme Court had not adopted Daubert. The member added that the
Daubert factors were not useful in evaluating the kind of expert witnesses commonly seen in North Dakota courtrooms, like treating physicians. The member said that in Minnesota's federal courts, Daubert procedures have developed that are time consuming and wasteful. The member said this could be a reason why the State of Minnesota had declined to revise its rules to reflect Daubert.
A member said that there was nothing objectionable about the three standards that would be added to the rule if the amendment was approved. The member said the current rule was too broad. The member said that every lawyer could point to occasions where an unqualified expert was allowed to testify.
A member said that the reach of Daubert had been broadened far beyond what was originally intendedevaluating expert testimony in the scientific context. The member said that if the proposal was adopted, the Daubert rationale would apply to all categories of expert witnesses and that this seemed to be going too far.
A member responded that the U.S. Supreme Court had extended the Daubert rationale to other categories. The member said that the Daubert factors were nonexclusive and not every factor would apply to all kinds of testimony. The member said that sometimes even the testimony of a treating physician must be subjected to scrutiny for reliability and the Daubert factors are tools to do this.
A member replied that the amendments to the rule were different from the Daubert factors because they would have to be applied to all cases where expert testimony was offered.
A member said that, in practice, North Dakota lawyers and judges borrow from federal cases to make threshold determinations on what goes into evidence. The member suggested that this could continue even if the proposed amendments were not adopted. A member replied that the proposed amendments were consistent with the federal rule and consistent with the case law being developed in the federal system. The member said that the proposed language and the developing case law all give clues about how to determine whether offered evidence is reliable.
A member said that the proposed language would have a limiting effect on the admission of expert testimony. The member said Rule 702 in its current form gives attorneys more flexibility to make arguments for and against the admission of expert testimony, and it gives judges more flexibility in making decisions.
A member suggested that if the Committee rejected the amendments some might view
this as a rejection of the Daubert factors. The member said this was not the case. The member said that the current language leaves things wide open and offers no guidance at all on the standards for admitting or rejecting evidence. The member said the proposed language at least offers some guidance and some standards, which would be useful both to lawyers and judges.
A member suggested that the proposal could be tabled permanently so that no one could leap to any conclusions about the validity of Daubert based on the Committee's actions.
A member said the Committee should approve the proposed amendments so that North Dakota could stay on track with and continue to be guided by the decisions being made in federal courts under Fed.R.Ev. 702.
A member observed that the Committee was an advisory group that had no power to set precedent and that what the Committee decided should have no impact on actions taken by trial judges considering evidence questions.
Mr. Plambeck's motion to adopt changes to Rule 702 FAILED 4-11.
Ms. Schmitz MOVED to adopt the alternate version of Rule 702 with amendments to the explanatory note only. Mr. Kapsner seconded.
A member said that the language of the rule describing how it was based on Fed.R.Ev. 702 was no longer correct.
Mr. Kapsner MOVED to amend language at line 10 to delete the words "is taken from Fed.R.Ev. 702, and." Ms. Schmitz seconded.
A member commented that the proposal would delete the history of the rule.
Motion CARRIED 14-1.
Ms. Schmitz's motion to adopt the proposed changes to Rule 702's explanatory note CARRIED 14-1.
Staff explained that the proposal to amend Rule 703 was before the Committee because a member requested that the Rule 703 amendments be considered with the Rule 702 amendments.
Mr. Kapsner MOVED to adopt the amendments to Rule 703. Judge Kleven seconded.
A member said that, if the proposed amendment was made, experts who review the entirety of a record will be able to use the record as a basis for their opinion but will be barred from disclosing any excluded portions of the record. The member said that physicians especially will often say things in a medical record that are purely an opinion. This portion of the record can be excluded as hearsay unless the physician comes and testifies. The proposed rule amendment will prevent experts who review records from regurgitating excluded hearsay as part of their opinions.
Mr. Kapsner's motion to add the rule, as amended, to the annual rules package CARRIED unanimously.
RULE 41, N.D. Sup. Ct. Admin. R. - ACCESS TO JUDICIAL RECORDS (PAGES 93-148 OF THE AGENDA MATERIAL)
Staff explained that the Supreme Court had referred the proposed amendments to Rule 41 to the Committee for review. The Committee began its review at the April 2005 meeting and decided to table the rule for further consideration at this meeting.
Judge Schmalenberger MOVED to approve the proposed amendments to Rule 41. Mr. McLean seconded.
A member asked why it would be appropriate to bar remote access to party generated documents. The member said we were moving toward an era where we would be able to post all court records on-line and that all court records should be available on-line once this is possible. The member said that if it is possible to view a document on-line, a person should not be required to go to the courthouse to view the document.
Staff explained that Minnesota had decided to deny on-line access to party generated documents because of a belief that it could limit exposure of inflammatory, private and personal material this way.
A member asked whether currently available documents, like appellate briefs, would become unavailable if such a limit were imposed. A member explained that the current language of the proposal did not limit remote access to any materials, it simply required certain items to be made available and left it open to the courts to make more items available in the future.
A member asked whether this left it open for counties and districts to make their own
decisions on what records they would make available on-line. A member responded that, under the system North Dakota uses to store electronic court records, a statewide standard will have to be developed to deal with remote access to court records.
A member asked who will determine whether a record will be made available to the public if it is electronically available in the system. A member responded that the information technology department is currently making those decisions, but that the court system is moving forward on pilot projects that may lead to greater access. The member said docket information is currently available electronically and that this information can lead searchers to other documents such as judgments.
A member commented that it is much more convenient for attorneys to be able to access court records on-line rather than going in person to the courthouse or waiting for copies of records in the mail.
A member said that under the federal PACER system, all case documents were on-line. The member said, however, that parties are billed to access the on-line documents. The member asked whether there was a provision in the rule for the courts to charge for access.
A member responded that this was another important electronic access issue. The member said that in North Dakota, appellate briefs were available free to anyone with Internet access. The member observed that briefs were available on-line in the federal systems, but only to people with PACER accounts willing to pay the fee.
A member said that federal bankruptcy materials were available on-line and that attorneys can keep up with case progress on a daily basis by downloading newly filed documents through PACER. The member said PACER sends bills on a regular basis for this access. The member said that this system worked well.
A member pointed out that the rule proposal does allow for the courts to charge a fee for remote access to court records. A member asked how the fees would be set. A member responded that the fees would likely be set by administrative order, like transcript costs. A member asked how the fees would be gathered from people. A member explained that vendors exist who can provide the technology for the courts to be paid by credit card, and that the Court Technology Committee has been gathering information on vendors and payment technology.
A member said it can be a hassle for the courts to collect small amounts of money. The member said one solution would be to allow people who use court services on a regular basis to set up accounts that can be drawn down as services are used.
A member commented that, in reality, it would not cost the courts anything to allow someone to access a document electronically once a system had been set up and documents made part of the database. The member said it would likely save money for the courts, even if no fees were charged, to allow remote access to documents because clerks would not have to physically obtain paper documents for users. The member said the rule provision allowing fee collection should be retained, but suggested that administrative costs related to fee collection would likely be greater than any fees gathered.
A member said that the reason the fee provision had been retained was because the courts expect requests to be made for bulk data access and access to compiled information.
A member questioned the use of the word "policy" on line 180. The member said documents are often sealed during trials, but not always because they are confidential under state law. The member asked whether sealed but non-confidential documents could be made available to the public after trial under the rule.
A member suggested the word "policy" could be changed to "order." The member said that the rule would then cover documents sealed by court order. A member responded that this might cause parties to have documents sealed unnecessarily, merely to protect them from public scrutiny.
A member responded that the rule gave guidelines for courts to consider when sealing records. The member also pointed out that the rule also requires disclosure of the existence of a sealed record in a file. The member said the rule provides protections against unjustified sealing of records.
A member commented that sealed items tend to be things like information about trade secrets, medical and psychiatric records, and other items where some justification exists for sealing under state law. The member questioned whether it would be a good idea to allow long-term sealing of information under court order when sealing of the information is not justified under state law.
A member said the Committee needs to look again at the word "policy" in line 180. The member said the term was too amorphousfor example, it could justify a clerk's office decision to impose a "policy" not to go down into the basement to look for old records.
Judge Foughty MOVED to change the word "policy" in line 180 to "order." Ms. Schmitz seconded. Judge Foughty's motion CARRIED unanimously.
A member suggested that the proposal to make domestic relations case records
confidential was unwise. A member noted that under the proposal even appellate briefs in domestic cases, which are now posted on the Internet at the Supreme Court website, would be confidential.
Mr. Quick MOVED to delete lines 176-178 on domestic case records. Ms. Moore seconded.
A member observed that the domestic relations records language in the proposal would be a major deviation from current court policy and would close all domestic relations files.
Mr. Quick's motion to delete language making domestic relations case records confidential CARRIED unanimously.
A member said that language on line 260 citing "higher values" was imprecise.
Mr. Kuntz MOVED to substitute the words "proprietary and privacy interests" for "higher values" in line 260. Judge Geiger seconded.
A member said that vague language would be preferable to proposed language. The member said it should be the judge's decision to balance whatever factors are relevant in a given case in making a decision whether to seal an item.
A member said that allowing the court full discretion could be achieved by deleting the "higher values" language without substituting additional language.
Mr. Kapsner MOVED a substitute motion for Mr. Kuntz's motion. To delete all words after the word "appropriate" on line 260. Mr. Mack seconded.
A member said it would be a problem to end the sentence after the word "appropriate" because any sealing of records would also need to be "narrowly tailored."
A member replied that the proposed substitute motion did not delete enough language and left in many terms that would have to be defined by the courts. The member suggested a larger deletion.
Mr. Plambeck MOVED a second substitute motion to delete language on lines 259-260 with the sentence to end after the word "interest" on line 259. Ms. Moore seconded.
Without objection, Mr. Kapsner withdrew his substitute motion in favor of Mr.
Plambeck's substitute motion.
Mr. Plambeck's motion to substitute CARRIED unanimously.
Mr. Plambeck's motion to delete language on lines 259-260 CARRIED unanimously.
A member expressed concern about juror names and juror information being remotely accessed. A member asked whether juror information could come under the definition of compiled information. Staff pointed out there was some language limiting access to juror information in the proposal.
A member said that juror information is currently available electronically and that computers are used to compile the information and to manage potential jurors. The member said that this information should not be made publicly available.
Mr. Kuntz MOVED to delete language on lines 281-284 beginning after the word "case" on line 281 and continuing to the end of the paragraph. Mr. Quick seconded.
A member said that an organization that has aided a party might seek to have notice of future actions involving the party and that the language that is the subject of the proposed deletion might, therefore, be useful.
A member responded that the provision was an invitation to abuse. A person or organization could request notice of all actions to open or close a court record and could attempt to take part in the action. The member said that people who were not involved with the creation of the record in a given case should not have a role in deciding whether part of the record should be closed.
Mr. Kuntz's motion CARRIED 13-2.
A member asked for an explanation of the language at lines 290-293. The member said this language seemed to suggest that public notice be given every time any party wanted to seal an item. The member said this would be a great burden on parties.
Staff explained that the provision was not part of the model public access policy. Staff said the provision was likely added during discussion on the rule by the Court Technology Committee.
Mr. McLean MOVED to delete language at lines 168-169, beginning after the word "forms" on line 168 and continuing to the end of the sentence. Mr. Kapsner seconded.
A member said that there was a lot of sensitive personal information to be found on jury qualification forms and jury questionnaires. The member said the information needed to be protected without the need to get a court order blocking disclosure.
A member said that there may be cases where the information should be released. The member suggested allowing the information to be disclosed if ordered by the court.
Mr. Quick MOVED a substitute motion to amend lines 168-169, rewording the clause after the word "forms" to read "unless disclosure is ordered by the court." Ms. Schmitz seconded.
A member asked whether certain types of juror information should be open to the public without a court taking action. A member responded that it was appropriate that juror qualification and questionnaire forms by kept private unless a court orders because of the personal information that can be found on these forms.
Mr. Quick's motion to substitute CARRIED unanimously.
A member asked whether the terminology in the sentence was unclear. The member said that the definition of "jury qualification form" is narrow may apply only to the standard form sent out by the court. The member said that this definition would not cover juror questionnaires assembled by the court and the parties.
Judge Hagerty asked unanimous consent to further amend the motion to add the language "or questionnaires" after "forms." Without objection, the amendment was made.
A member asked what would happen to the voir dire record. The member said individual, confidential voir dire often contains much personal information.
The motion to amend lines 168-169, with substituted language, CARRIED unanimously.
A member said that a new paragraph could be added to the rule relating to the voir dire record. The member said the decision whether to bar public access to the voir dire record should be made on a case by case basis. A member responded that this would put the burden on the lawyers to have the voir dire excluded from access, and the lawyers may not care enough about juror privacy to take the time to have voir dire excluded from public access.
Ms. Schmitz MOVED to amend language at lines 290-292 as follows: "The notice
must give the parties the opportunity to be heard on such motions. The opportunity to be heard includes the opportunity to submit written briefs and, if timely requested by any party, the opportunity to present oral argument." Ms. Moore seconded.
A member said one purpose of the proposed amendment was to eliminate the requirement to give public notice of motions. The member said parties should not have to worry about publishing motion notices.
A member asked whether paragraph C on lines 285-289 made it clear that the court must give notice to certain individuals when motions are made to make public information that had formerly been sealed.
A member said the original intent of paragraph D seemed to be making sure that the public and other parties with an interest got notice of motions to seal court information and motions to make sealed information public. The member said if the Committee wanted to eliminate the public notice requirement, the rest of the paragraph was unnecessary because other rules govern the making of motions.
Mr. Plambeck MOVED to substitute a motion that would delete lines 290-292. Judge Foughty seconded. The motion to substitute CARRIED.
The motion to delete lines 290-292 CARRIED unanimously.
Mr. Kapsner MOVED to add a new paragraph at line 170 as follows "records of voir dire of jurors, unless disclosure is ordered by the court." Ms. Schmitz seconded.
A member said that the proposed amendment would impact on the Supreme Court, requiring it to separate voir dire transcripts from accessible transcripts.
A member said the intent of the section was to list records excluded from public access under state law. The member said no state laws make voir dire transcripts confidential.
A member said that 99 percent of the time, voir dire information can be made part of the public record. The member said it should only be excluded from public access when the court determines that it should be made private. The member said the court should have discretion to protect juror privacy.
A member commented that voir dire is conducted in a public forum, and in cases where it is not, it is sealed. The member said this existing procedure takes care of any
problem related to voir dire confidentiality.
A member said that records of voir dire done in chambers are still part of the overall voir dire record.
Mr. Plambeck moved a substitute motion to have the proposed new paragraph read as follows: "records of voir dire of jurors conducted outside the presence of the public, unless disclosure is ordered by the court or by court rule." Mr. McLean seconded.
A member said that the proposed wording would not protect the privacy of jurors. The member said the personal information such as juror addresses are revealed in public voir dire. The member said the entire voir dire record should be excluded from public access because of it is likely to contain identifying information of jurors.
A member said jurors reveal this information in public. A member responded that this does not justify preserving the information in the record to be freely accessed by the public. A member said that the court compels jurors to give truthful information about themselves and the court should protect this information.
Mr. Plambeck's motion to substitute FAILED 6-10.
Judge Hagerty MOVED a substitute motion to add the words "or by rule" to the end of the proposal. Ms. Schmitz seconded.
A member commented that voir dire records have been open forever. The member said that no instances of actual abuse related to having open voir dire records had been cited. The member said closing the record was a cause for concern, especially because questions asked in voir dire were usually innocuous.
A member responded that keeping voir dire records open potentially could become a problem because court information is becoming more widely disseminated. The member said the amendment seemed to be designed to head off problems and protect jurors, who are brought into court without representation by lawyers.
A member said that in many criminal cases, jurors are required to provide sensitive information about personal experiences. A member stated that jurors are asked about things like psychiatric counseling.
Judge Hagerty's motion to substitute CARRIED unanimously.
Mr. Plambeck MOVED a substitute motion adding language "permitted by court order or rule" to the proposal. Mr. Kapsner seconded.
A member commented that it may be necessary in some instances to seal voir dire records. The member said the proposal went too far in closing off an important part of the trial record. The member said the court should have discretion to close voir dire records on a case-by-case basis but that the records should not be closed by rule.
A member said, as a practical matter, most voir dire records have been closed for years because court reporters' voir dire notes were rarely transcribed. The member said new methods of recording voir dire have made the records more accessible. The member said the proposal did not prohibit public access to voir records, but instead required the intervention of a judge before public access would be available.
A member said that whatever the Committee could do to make prospective jurors more comfortable about providing information during voir dire would serve the interests of justice.
A member asked whether making the proposed change would prompt the press seek access to voir dire records in more cases. The member said that this could burden the court system with more motions and more hearings.
Mr. Plambeck's motion CARRIED 12-3.
Mr. Kapsner MOVED to substitute "summoned" and to strike "qualified" at line 168. Ms. Schmitz seconded.
A member commented that qualified jurors were those on the roster that clerks use when calling to form a pool. A member replied that qualified jurors were those chosen to serve. Another member said that these were selected jurors.
Mr. Kapsner's motion CARRIED 14-1.
A member commented that the term qualified jurors is broader than summoned jurors because qualified jurors make up the list of people who may be summoned. Some members questioned this definition.
Judge Hagerty asked unanimous consent to use the term "qualified or summoned" in line 168. Without objection, the Committee agreed.
A member questioned the rule's provision on education. The member said it was unusual for a rule to contain a provision requiring the courts to put out information about a rule. The member said that the public is presumed by law to know about rules that are on the books. The member said that the education provision would impose a burden on the courts.
Ms. Moore MOVED to delete lines 318-333. Mr. Kuntz seconded.
Ms. Moore's motion CARRIED unanimously.
Mr. Kuntz MOVED to strike language at lines 296-297 starting after the word "subject" and to substitute: "to technical systems availability." Ms. Moore seconded.
A member asked whether information technology staff requested insertion of the provision. Staff replied that the language had been added by the Court Technology Committee.
A member said one of the advantages of electronic access was that electronic records could be made available after normal business hours. The member said a business hours limitation on access to electronic records would not make sense.
A member said the proposed amendment would make it unnecessary for IT to announce when the system would be down for maintenance. A member responded that one of the reasons why the language was added was that IT was concerned that electronic records would have had to be made available at all times, without regard to maintenance.
Mr. Kuntz's motion CARRIED unanimously.
A member asked a question about jury qualification forms. The member said that current practice, when a jury trial is scheduled, is for copies of the forms to be made available to the parties. The member asked whether this practice would continue. Staff pointed out that the rule granted parties to a case access to all records.
A member asked whether lines 312-313 should be amended given that the Committee deleted Section 9 on education.
Judge Hagerty MOVED to amend line 312 to delete "comply with the requirement of this rule to." Mr. McLean seconded.
A member said that, under the proposed change, venders would be required to interpret the rule in order to carry out their education role. Another member agreed, and
added that it did not seem useful to have a rule dictating vendor duties when this could go into the contract with the vendor.
Judge Hagerty's motion CARRIED unanimously.
Mr. Kuntz MOVED to delete lines 312-314. Judge Foughty seconded.
A member commented that getting rid of the whole section would solve all problems related to imposing duties on vendors. A member said that the section of the rule applies to a broader range of persons than vendors, such as clerks of court who are not state employees.
Mr. Kapsner MOVED a substitute motion to delete lines 305-317. Ms. Schmitz seconded.
Mr. Kapsner's motion to substitute FAILED.
Mr. Kuntz's motion CARRIED unanimously.
The main motion to adopt the proposed amendments to Rule 41 CARRIED unanimously.
The meeting recessed at approximately 4:00 p.m., on September 22, 2005.
September 23, 2005 - Friday
The meeting was called to order at approximately 9:00 a.m., by Justice Dale Sandstrom, Chair.
RULE 41, N.D. Sup. Ct. Admin. R. - ACCESS TO JUDICIAL RECORDS (PAGES 93-148 OF THE AGENDA MATERIAL)
Ms. Schmitz MOVED to report immediately back to the Supreme Court on the Committee's proposed amendments to Rule 41. Judge Klevin seconded. Motion CARRIED unanimously.
RULE 3.1, N.D.R.Ct. - PLEADINGS (PAGES 149-153 OF THE AGENDA MATERIAL)
Staff explained the proposed amendment to Rule 3.1, which would delete the sentence reading: "Court personnel will not review documents for compliance with this rule."
Mr. Kapsner MOVED to adopt the proposal. Judge Kleven seconded.
A member said the proposed amendment should be adopted because there was no reason to retain the sentence on court personnel review. The member said the sentence did not reflect reality, because court personnel have been reviewing documents. The member said the sentence was also redundant, because the sentence before it placed the burden for compliance with the rule on counsel and parties.
A member commented that, because the current version of Admin. Rule 41 bars disclosure of personal information in court documents, the Rule 3.1 language indicating that personnel "will not review" documents needs to come out.
A member said the language improperly suggested that court personnel would look the other way if parties submitted documents not in compliance with Rule 3.1. A member commented that if court personnel find a problem with a submitted document, it would be appropriate for them to send the document back to the party to have the party fix it. A member said some clerks were already using a standard request for correction letter.
The main motion to adopt the proposed amendments to Rule 3.1 CARRIED unanimously.
RULE 11, N.D.R.Crim.P. - PLEAS (PAGES 154-170 OF THE AGENDA MATERIAL)
Staff explained that Rule 11 was before the Supreme Court as part of the Criminal Rules/Annual Rules Package. Staff explained that additional amendments were being proposed because of statutory changes enacted by the legislature and the Supreme Court's adoption of N.D. Sup. Ct. Admin. R. 52 on interactive television.
Judge Foughty moved to adopt the proposed amendments to Rule 11. Ms. Schmitz seconded.
A member asked whether the proposed amendment should refer to sampling and testing rather than just sampling. The member said taking a DNA sample without testing it would be useless. A member replied that the statute referred to sampling.
A member said the sampling required seemed to be a collateral consequence of a plea. The member said registration as a sex offender is considered a collateral consequence even though it is required under the criminal code. The member said the sampling requirement is not even under the criminal code. The member said the proposed amendment should not be adopted because sampling is a collateral consequence.
A member said that there were already a large number of items that defendants needed to be informed of under the rule and that adding more would create an additional burden for the courts.
A member commented that DNA sampling was an invasive procedure and that it would be appropriate for courts to inform defendants making guilty pleas of the requirement.
A member commented that, if sampling is a collateral consequence, it would not be reversible error for courts to omit information about it at a guilty plea proceeding. The member said, however, that if courts were required by rule to provide information about sampling, it would be reversible error not to provide the information.
A member asked for a working definition of "collateral consequence." A member explained that a defendant faces many consequences when pleading guilty to an offense, some direct, some collateral. The member indicated that the Supreme Court considers the sex offender registration requirement a "collateral consequence"and judges, therefore, are not required to inform defendants about it.
A member said going to prison was an example of a direct consequence.
A member said that sex offender registration is a very invasive requirement, and if judges are not required to tell defendants about it, they should not be required to tell defendants about DNA sampling. Another member said there are many consequences worse than DNA sampling that judges do not tell defendants about, such as gun ownership limitations.
A member said DNA sampling was no more invasive than taking a fingerprint.
The proposal to adopt the proposed new rule language on DNA sampling FAILED 10-3.
The proposal to recommend adoption of the new explanatory note language regarding guilty pleas by interactive television carried unanimously.
RULE 46, N.D.R.Crim.P. - RELEASE FROM CUSTODY (PAGES 171-185 OF THE AGENDA MATERIAL)
Staff explained that Rule 46 was before the Supreme Court as part of the Criminal Rules/Annual Rules Package. Staff explained that additional amendments were being proposed because of statutory changes enacted by the legislature.
Judge Hagerty MOVED to adopt the proposed amendments to Rule 46. Mr. Sturdevant seconded.
A member asked why the word "reasonable" preceded "random testing" in the proposal.
Judge Foughty MOVED to delete "reasonable" and "random" from line 35. Ms. Schmitz seconded.
A member said that the statute requiring testing used the term "reasonable." A member commented that, as a practical matter, a court could not order "reasonable" testing. The member also said that the statute said nothing about the results of the testing, therefore leaving unanswered the question of who could have access to the results.
A member said reasonable was an obscure term. The member also said random testing could be a problem because courts typically have defendants come in for testing on a given day or a given number of times a week.
A member said that courts typically order testing and the matter is then turned over to law enforcement. The member said that if the court did not specify "reasonable random" testing, law enforcement could require some sort of intimidating level of testing. The member said that the language should be kept in the rule so that if a defendant feels that the level of testing is abusive, the defendant will have a basis for challenging the testing.
A member said that random testing had been included as a condition of probation for some offenders for many years and that none had ever complained about law enforcement requiring an abusive level of testing. The member said that if a defendant feels there is testing abuse, the defendant can make a motion to have the court intervene.
A member said that at least one court had decided that financial responsibility for the testing should be placed on the defendant, so "reasonable" testing would be testing that did not place too much of a cost burden on the defendant. The member said that randomizing testing was possible by, for example, having defendants call into the lab at designated times without knowing whether or not they would be instructed to come in for a test.
A member said that being tested once a week on a certain day would not be random, but that being tested once a week without having prior notice of the test day would be random. The member said the statute requires random testing and said the rule should reflect that.
A member said that some courts order a certain number of tests per week and leave it up to the testing agency to schedule the actual tests. The member questioned whether the rule needed to specify random testing.
A member said that while the courts might not like the statutory requirement of "reasonable random" testing, the rule should be consistent with the statute.
Judge Foughty's motion FAILED on a voice vote.
The main motion to recommend adoption of the proposed amendments to Rule 46 CARRIED unanimously.
FORM 9, N.D.R.Crim.P. - CONDITIONS FOR SENTENCE TO PROBATION, DEFERRED OR SUSPENDED SENTENCE (PAGES 186-205 OF THE AGENDA MATERIAL)
Staff explained that Form 9 was before the Supreme Court as part of the Criminal Rules/Annual Rules Package. Staff explained that additional amendments were being proposed because of statutory changes enacted by the legislature and because of a request submitted by the parole and probation department.
Mr. Mack MOVED to adopt the proposed amendments to Form 9. Judge Geiger seconded.
Judge Geiger MOVED to move the new material on GPS monitoring that appears at lines 193-194 of the proposal to a different position in the rule following line 131, with renumbering as necessary. Judge Foughty seconded.
A member said that the GPS monitoring condition had potential to being applied to probationers other than just sex offenders so it would be appropriate to put it with the general probation conditions.
A member said that GPS monitoring was a mandatory probation condition for sex offenders. The member wondered whether it was appropriate for other types of offenders.
A member responded that it might be appropriate to order GPS monitoring for people convicted of harassing or menacing. A member asked whether judges could inadvertently forget to impose a GPS monitoring condition on a sex offender if it was not listed under the sex offender conditions.
A member said that the condition would be always used with sex offenders and rarely used with other offenders so it would be appropriate to keep it under the sex offender conditions. The member said a judge could still impose GPS monitoring on other types of offenders by writing it in as a condition in the blank "other" category.
A member said that electronic monitoring was broader than just location monitoring. It was possible, for example, to monitor DUI offenders to ensure they did not drive after drinking.
A member asked whether requiring electronic monitoring was too great a restraint on the liberty of a person given probation. A member responded that having the ability to monitor an offender can make it easier and safer for the courts to release an offender to their home rather than retaining them in jail.
A member commented that having the electronic monitoring item in the general conditions part of the form would not make electronic monitoring mandatory. The member said a judge would have to check off on the electronic monitoring option before it could be imposed.
Judge Geiger's motion CARRIED 8-6.
A member pointed out that the words "you shall" should be placed at the beginning of line 61. Without objection, this language was added to line 61.
A member asked whether all the probation options listed on the form were set out in a statute. A member responded that the probation options statute contained a nonexclusive list of possible probation conditions. The member said that the statute leaves it open for courts to impose other reasonable and appropriate conditions.
The main motion to recommend adoption of the proposed amendments to Form 9 CARRIED 13-1.
RULE 11.2, N.D.R.Ct. - WITHDRAWAL OF ATTORNEYS (PAGES 206-209 OF THE AGENDA MATERIAL)
Staff explained that Rule 11.2 was before the Supreme Court as part of the Criminal Rules/Annual Rules Package. Staff explained that additional amendments were being proposed because they had been requested by a practicing attorney.
The proposal to amend Rule 11.2 failed for lack of a motion.
ORDER 16, N.D. Sup. Ct. Admin. R. - ELECTRONIC FILING PILOT PROJECT FOR THE DISTRICT COURTS (PAGES 210-215 OF THE AGENDA MATERIAL)
Staff explained that Order 16 was before the Supreme Court as part of the Criminal Rules/Annual Rules Package. Staff explained that additional amendments were being proposed based on concerns expressed by Committee members at the April meeting.
Mr. Sturdevant MOVED to adopt the proposed amendments to Order 16. Mr. McLean seconded.
A member asked whether, under the proposed amendments, a lawyer would need to have written permission before attempting electronic service.
A member said that approximately 90 percent of the e-mail received by the state courts was spam. The member said that spam detection programs ensure that most of the e-mail identified as spam never gets into an inbox and the e-mail user would not know it existed. The member said if something was served by e-mail and pulled by the spam filter, the intended recipient would never know it hade been served.
A member said the proposed language was not precise, especially the term "learned."
A member said that e-mail programs can be set to generate a message indicating that the e-mail had been received. The member asked whether the program would still generate such a message if the e-mail was weeded out by a spam filter. The response was that the message would still be generated; e-mail programs cannot detect what happens to an e-mail once it is received.
A member commented that the proposed amendments suggest that service by electronic means is unreliable. A member said the language making service ineffective when an e-mail was not received was necessary, but that it raised troubling issues. The member said that there needs to be some sort of remedy when a sender finds out (after the time for service has ended) that an item served by e-mail has not been received.
Mr. Plambeck MOVED to reject the proposed amendments and to retain the prior language on electronic service. Ms. Schmitz seconded.
The Chair said that the Supreme Court adopted an electronic service provision when it adopted electronic filing for fairness reasons. The Chair said that a document filed electronically is in the hands of the court immediately, but if the same document is served on an opposing party by mail, the opposing party may not get it for days. The Chair said that,
in such a situation, the court could act on the document before the opposing party even knew the document existed.
A member asked whether, under the motion, all lawyers with e-mail addresses would be required to accept electronic service without the possibility of opting out. A member responded that, under the motion, if a document was filed electronically it would need to be served electronically. The member noted that there was an exception when the recipient did not have an e-mail address.
A member asked how large law offices could deal with electronically served documents. A member said when paper documents come into a law office, they are stamped and logged before they go to the appropriate attorney. The member said it would be difficult to manage incoming documents if electronically served documents were sent to individual lawyer e-mail addresses.
A member said to adopt electronic service would be dangerous because of the difficulties involved in managing electronically received documents, including the possibility that documents would sit in electronic inboxes for days because lawyers are out of the office or on vacation.
Mr. Plambeck's motion FAILED on a voice vote.
Mr. McLean moved to delete the proposed new language at lines 39-40: "Service by electronic means is not effective if the party making service learns that the attempted service did not reach the person to be served." Judge Schmalenberger seconded.
A member said if a party learns too late that electronic service did not reach the intended party, there could be significant consequences if the attempted service is considered ineffective. A member replied that the party could move the court for more time. A member responded that sometimes jurisdiction is lost if service is not timely, so making a motion would not be an adequate remedy.
A member said that one solution would be to do follow up service by mail whenever electronic service is made.
A member said that it makes sense to allow e-mail service only when consent is obtained from the recipient. The member said that, in a case where there was consent for electronic service, it should be left up to the court to decide on whether an attempt at electronic service was ineffective in a given situation.
Mr. McLean's motion CARRIED unanimously.
A member commented that the consent requirement was not consistent with the rule language at lines 41-42 allowing service to be made to e-mail addresses published in the Supreme Court's directory.
Mr. Kapsner MOVED to amend line 41 to add the words "consent is given and" after the word "If" at the beginning of the first sentence. Mr. McLean seconded.
Mr. Plambeck MOVED a substitute motion, replacing the language at lines 41-45 with "In giving consent to accept service of documents electronically, the party giving consent will specify the e-mail address to be used." Mr. McLean seconded.
Judge Hagerty proposed that the following phrase be used instead: "A party may designate an e-mail address as their e-mail address for the purpose of accepting electronic service." Without objection, this language was substituted for the language proposed by Mr. Plambeck.
A member said that parties could discuss electronic service at the beginning of a case, and exchange addresses and consents. A member said this would save time over seeking consent on a document-by-document basis.
Judge Hagerty's substitute motion CARRIED unanimously.
The pending motion, as substituted, CARRIED unanimously.
Mr. Kapsner MOVED to change "under" to "by" in line 47. Ms. Schmitz seconded.
Mr. Kapsner's motion CARRIED unanimously.
Mr. Kapsner MOVED to change the second "by" to "in" in line 47. Ms. Schmitz seconded.
Mr. Kapsner's motion CARRIED unanimously.
The main motion to recommend adoption of the proposed amendments to Order 16 CARRIED unanimously.
RULE 3, N.D.R.App.P. - APPEAL AS OF RIGHT HOW TAKEN (PAGES 216-228 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to Rule 3.
Judge Kleven MOVED to adopt the proposed amendments to Rule 3. Mr. Sturdevant seconded.
The main motion to adopt the proposed amendments to Rule 3 CARRIED unanimously.
RULE 4, N.D.R.App.P. - APPEALWHEN TAKEN (PAGES 229-237 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to Rule 4.
Ms. Moore MOVED to adopt the proposed amendments to Rule 4. Mr. McLean seconded.
A member observed that the general time deadline for filing an appeal in a civil case was set out in subdivision (a) of the rule. The member said that someone wanting to know how much time was available to file an appeal would look in subdivision (a). The member said that having the time deadline for juvenile appeals at the very end of the rule created organizational problems. The member suggested that all time deadlines in the rule be in the same place.
A member said that it did not make any sense to have a 30-day deadline in the rule for juvenile appeals, given that the short deadline was causing so many late filings and requests for extension of time. The member said the language of the statute authorized the Supreme Court to allow a longer deadline.
Mr. Kapsner MOVED to amend lines 93-97 to replace "30" in line 93 with "60" and to delete the language after "appealed" in line 94. Judge Foughty seconded.
A member said that the 30-day deadline had been imposed because children are involved in juvenile appeals and these matters need to be resolved as quickly as possible. A member that having a 60-day deadline would not slow down appeals because the appeal can be filed before the 60-day deadline is reached. Staff explained that appeals currently were not being filed within the 30 days allowed and that the clerks' office was dealing with many requests for extensions in juvenile cases.
A member said that, when possible, the rules should be consistent with statutes on the same topic. A member said that changing the appeal deadline from 30 to 60 days would be inconsistent with the intent of the juvenile court act, which is to get proceedings accomplished as quickly as possible. The member said many juvenile proceedings dealt with termination of parental rights and resolving these cases in a timely manner is important to bring finality for the children involved.
A member said there was no prohibition on a party filing an appeal as rapidly as desired. The member said to have a 60-day deadline would be consistent with the rest of the rule. A member pointed out that not all appeals have 60-day deadlinesthe deadline for criminal appeals is 30 days.
A member said that if the existing practice is for most parties to file motions for extensions in juvenile cases, it would be better to have a 60-day deadline. The member said this would give the parties more breathing room. The member said that, from a practical standpoint, there seemed to be a problem meeting the 30-day deadline. The member said extending the deadline to 60 days seemed reasonable.
A member said that it was more important to keep the juvenile appeal deadline consistent with the criminal appeal deadline (30 days) than it was to be consistent with the civil appeal deadline. The member said if 60 days are allowed, parties will take the time given in most cases. The member said if the Committee is concerned about finality for children, having a shorter appeal time is better to encourage quicker completion of actions.
A member said that children were no longer kept in orphanages. A member responded that they were in foster homes facing uncertain futures.
A member asked whether there was an accelerated procedure in place in district courts for juvenile cases. A member responded there are statutory time lines the district courts are required to meet in juvenile cases.
Mr. Kapsner's motion FAILED on a voice vote.
A member asked whether it was possible to put some language near the top of the rule directing parties to the juvenile appeal provision and its 30-day deadline. A member said that the types of cases covered later in the rulecontempt, post-conviction and juvenile cases were matters that did not fall into the broad categories of "civil" or "criminal."
The main motion to adopt the proposed amendments to Rule 4 CARRIED 10-3.
RULE 10, N.D.R.App.P. - THE RECORD ON APPEAL (PAGES 238-265 OF THE AGENDA MATERIAL)
Staff explained that a citizen had requested that Rule 10 be amended.
A member said that the proposed amendment would not solve the "settlement and approval" problem cited by the citizen. The member said that because the rules now require voir dire to be recorded in felony cases, the problem experienced by the citizen would not recur.
The proposal to amend Rule 10 failed for lack of a motion.
RULE 32, N.D.R.App.P. - FORM OF BRIEFS, APPENDICES AND OTHER PAPERS (PAGES 266-272 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to Rule 32.
Mr. Moore MOVED to adopt the proposed amendments to Rule 32. Ms. Schmitz seconded.
A member asked whether continued use of colored covers on appellate briefs was necessary given that the Supreme Court was moving toward increased electronic filing of briefs.
A member said the proposed language was lacked precision because it was not clear which "principal brief" was being referenced. Staff explained that the "principal brief" was the brief the party, whether appellant or appellee, filed originally in the appeal.
Mr. Kapsner MOVED to amend lines 11-12 to add the words "petitioning party's" before the words "principal brief." Judge Hagerty seconded.
Mr. Kapsner's motion CARRIED unanimously.
The main motion to adopt the proposed amendments to Rule 32 CARRIED unanimously.
RULE 23, N.D.R.Civ.P. - CLASS ACTIONS (PAGES 273-301 OF THE AGENDA MATERIAL)
Staff explained that a Committee member suggested the proposed amendments to
Mr. Plambeck MOVED to adopt the proposed amendments to Rule 23. Judge Kleven seconded.
A member said that, unless and until a matter is certified as a class action, it is treated like any other civil case. Once the case is certified, things change and new requirements are imposed. The member said that the suggestion to amend Rule 23 was inspired by a case in which the plaintiff in a non-certified class action decided to drop the matter. Because the plaintiff had used the word class action in the complaint, a hearing was required before it could be dropped.
The member said that plaintiffs in non-certified class actions face the possibility of being required to bear the cost of notifying a class that is not yet defined of if they seek to drop the case. The member said there was no need to have a rule that treats a case as a class action when it is not yet certified as a class action. The member said that the federal rule has been amended to treat parties in non-certified class actions like parties in any other civil case.
A member asked whether the act of an individual filing and then dismissing a class action with prejudice could eliminate the ability of others to subsequently file lawsuits alleging injuries to a similarly defined class. The member said that if the Committee decided to change Rule 23 to make dismissals easier, it needed to make certain that the amended language made it clear that such dismissals apply only to the named plaintiff.
A member asked how the dismissal of a non-certified class action could bar other potential class members from bringing similar claims. A member responded that it was a bothersome possibility the Committee needed to take into account. A member said that if a class action is filed before the statute of limitations runs there is no bar to certifying it as a class action after the statute has run. The member said that if the named plaintiff got dismissed out after the statute had run but before the class was certified, the other class members would be time barred from bringing a new action.
A member said that, because of the statute of a limitation problem, a class action defendant could settle with a named plaintiff after the statute has run in order to foreclose recovery by potential class members. A member responded that any dismissal with prejudice could be limited to the named plaintiff.
A member said the real issue was whether it was a good idea in class action cases to have a judge look things over when pre-certification dismissal was proposed. The member agreed that sometimes plaintiffs just want to walk away, but that even in such cases there was
value in having a court look at the matter before dismissal.
A member said it was unlikely that anyone was relying on named class action plaintiffs to carry out a given claim. The member pointed out that, because actions do not need to be filed when they commence, many putative class actions can go on for some time with only the parties knowing about them.
The main motion to adopt the proposed amendments to Rule 23 FAILED 4-9.
The meeting adjourned at approximately 11:30 a.m. on September 23, 2005.
Michael J. Hagburg