MINUTES OF MEETING
(UNOFFICIAL UNTIL APPROVED)
Joint Procedure Committee
September 28, 2018
TABLE OF CONTENTS
Rule 10, N.D.R.App.P., The Record on Appeal 2
Proposed Amendments to Rules of Appellate Procedure 5
Rule 39.1, N.D.R.Civ.P., Change in Location of a Hearing, Proceeding, or Trial; Change of Venue 8
Rule 37, N.D.R.Crim.P., Appeal as of Right to District Court; How Taken 9
Form 9, N.D.R.Crim.P., Conditions for Sentence to Probation, Deferred or Suspended Sentence 12
Rule 615, N.D.R.Ev., Excluding Witnesses 13
Rule 707, N.D.R.Ev., Analytical Report Admission; Confrontation 14
Rule 21, N.D.R.App.P.,Writs 16
Rule 11.2, N.D.R.Ct., Withdrawal of Attorneys 16
Rule 41, N.D. Sup. Ct. Admin. R., Access to Judicial Records 18
Modification of Judgment Procedure 19
CALL TO ORDER
The meeting was called to order at 9:00 a.m. on September 28, 2018, by the Chair, Justice Lisa Fair McEvers.
Justice Lisa Fair McEvers, Chair
Honorable Bradley A. Cruff
Honorable Laurie Fontaine
Honorable Donald Hager
Honorable Gail H. Hagerty
Honorable William A. Herauf
Honorable Steven L. Marquart
Honorable Steven McCullough
Mr. Bradley Beehler
Mr. Sean Foss
Mr. Mark Friese
Mr. Zachary Pelham
Mr. Robert Schultz
Ms. Lisa Six
Honorable Todd L. Cresap
Honorable Robin Schmidt
Mr. Birch Burdick
Prof. Margaret Jackson
Ms. Carol Larson
Mr. Lloyd Suhr
APPROVAL OF MINUTES
Judge Herauf MOVED to approve the minutes. Judge Marquart seconded. A member requested that the minutes be corrected to remove the word "to" on page 14. By unanimous consent, the minutes were amended. The motion to approve the minutes CARRIED.
RULE 10, N.D.R.App.P., THE RECORD ON APPEAL (PAGES 19-34 OF THE AGENDA MATERIAL)
Staff explained that the committee at its April meeting considered a proposal by Supreme Court Clerk Penny Miller to amend Rule 10 to clarify that parties can be served an electronic copy of the transcript if they have an e-mail address on file with the court. The committee directed staff to seek comments from the court reporters and recorders on the proposal. Staff presented the comments to the committee and reported that, while the comments generally supported the proposal, they also pointed out that it was not clear under the proposal whether the default approach would be to provide an electronic copy. Staff provided the committee with proposed amendments to Rule 10.
Judge McCullough MOVED to approve the proposed amendments to Rule 10. Judge Herauf seconded.
A member pointed out that the language on page 22, line 30, implied that both paper and electronic transcript copies would have to be served. The member asked whether it should be one or the other. The Chair said members of the Court generally use electronic
copies. Staff said the proposed amendments on page 21, line 7, would require that an electronic copy be provided to the Court.
The Chair said that the proposed appellate rule amendments would require paper documents be served on self-represented litigants and prisoners. A member said this issue was not dealt with under the proposed amendments to Rule 10. A member pointed out that the rule on page 21, lines 17-18, required the appellant to order one copy of the transcript for each party but did not specify whether this copy should be in paper or electronic form.
A member said N.D.R.Ct. 3.5 said that self-represented litigants and prisoners could still file and be served with paper copies. The member said that Rule 3.5 applies to documents filed with the district court and not to appellate documents. Staff suggested that the committee could propose amendments to Rule 10 if it wished to allow or require paper copies to be served on specified parties.
A member asked whether there was a requirement under the present rule that parties be served with paper copies. Staff said that parties were currently required to serve the court with an electronic copy and the proposed amendments were intended to specify that this electronic copy be in portable document format. Staff said that current rule language allowing a party ordering a transcript to provide email addresses for service implied that electronic copies could also be provided to the parties. Staff said the intent of the proposed amendments was to address whether the parties could be provided electronic copies of the transcript instead of paper copies.
A member said that the proposal did not specify who gets to decide whether a party gets a paper or electronic copy. A member said it would be appropriate to include language in the rule about the use of paper or electronic copies that is consistent with Rule 3.5 on practice in the district courts. The member said it would be an invitation to error if there is a different practice in the trial courts and the Supreme Court. A member said the only people allowed to make paper filings under Rule 3.5 are self-represented litigants and prisoners.
A member said that as a practical matter, court reporters were already providing transcripts in electronic form and serving them by email. A member said that generally if a party wants a paper copy from a court reporter, they need to specifically request one.
Clerk of the Supreme Court Penny Miller arrived to answer questions about proposed amendments to Rule 10.
The Chair asked Ms. Miller when a paper copy of the transcript was required. Ms. Miller said that paper copies are generally provided to the parties under the existing rule
language. Ms. Miller said that in the future it is contemplated that only self represented litigants and prisoners would send and receive paper copies. A member asked whether the language about PDF and paper copies proposed on page 22, line 30, was needed in this rule.
Mr. Friese MOVED to remove the reference to PDF and paper copies from page 22, line 30. Judge Marquart seconded. The motion CARRIED.
A member said the proposal still did not provide guidance on who would need to get a paper copy and could be served an electronic copy. The member said it might be appropriate to specify in the rule that self-represented litigants and prisoners should receive paper copies while electronic copies could be served on other parties. A member suggested that this would be better addressed in another rule. Ms. Miller said the only rule that specifically exempted self-represented litigants and prisoners from e-filing was Rule 3.5, the district court e-filing rule. A member said that the committee's discussion had revealed that court reporters were currently serving electronic transcript copies to parties with email addresses. Ms. Miller said this practice would be consistent with N.D.R.App.P. 25, which requires that electronic service be made when a matter is filed electronically.
A member said that language specifying when a paper or electronic copy needed to be provided could be added to the part of the rule relating to the order for transcript on page 21, lines 17-18. A member responded that adding language specifying which type of transcript to order may not be needed because the language of the rule seemed to cover what type of transcript is acceptable and if a party makes a mistake in an order the reporter or the court will let the party know. The member said that if a party has an email address, whether self-represented or a prisoner, this is an indication that they can accept delivery of an electronic transcript. The member said it would be best to address whether a paper transcript is necessary in a particular situation on a case-by-case basis.
A member said if there is no clear guidance in the rule on what type of transcript to provide this might set up a situation in which a party emails an electronic transcript to a self-represented party and the self-represented party later claims it was never received. A member replied that the court reporter has the duty to serve and will be the one who decides what type of transcript to provide. Ms. Miller said that if the clerk's office receives a certificate from the court reporter that a transcript was emailed, and the party claims it was not received, the clerk's office would have no problem providing it.
A member said the main change being made under the proposal was to specify that a portable document format copy had to be sent to the court, rather a nonspecific type of "electronic copy." A member asked whether the default would be for a court reporter to provide an electronic copy to everyone now. A member said this is covered by Rule 25,
which allows service by other means only when a party cannot accept electronic service. A member said by the time a party submits an order for transcript it will be clear whether the other parties can accept service by electronic means.
By unanimous consent the words "portable document format" was added to page 22, line 32.
The motion to approve Rule 10 as amended CARRIED.
PROPOSED AMENDMENTS TO THE RULES OF APPELLATE PROCEDURE (PAGES 35-69 OF THE AGENDA MATERIAL)
Staff explained that the Clerk of the Supreme Court had proposed several amendments to the Rules of Appellate Procedure, with a comment deadline of October 1. Staff presented the proposals to the committee and said that members who have concerns about them may wish to submit comments. The Chair welcomed Supreme Court Clerk Penny Miller to answer questions about the amendments.
The Chair said that the main difference between the committee's proposed amendments to Rule 32 and the clerk's proposed amendments was elimination of the word count and using page count for all documents instead. Ms. Miller said that if the Court is going to go to all PDF documents, it is difficult to check word count without first converting the PDF document into a word processing document. Ms. Miller said having PDF documents and using page count would save the clerk staff time.
A member asked about language in the Rule 32 proposal allowing a party to rely on the page count indicated by the word processing program. Ms. Miller said because the Court had never counted pages such as the title page and table of authorities, the page count would start when the argument began and the page count provided by a program, therefore, would always be wrong.
The Chair said the committee did not need to take any action on the proposed amendments because they had already been submitted to the Court for consideration. The Chair said that the committee and its individual members may want to submit comments to the Court about the proposals if there were any matters of concern.
The Chair said some of the more significant changes in the proposed amendments were a move away from having the parties request waiver of oral argument to instead requiring the parties to request oral argument. The Chair said this was a change from the idea of oral argument being automatic, and it provides some leeway for attorneys who do not
think oral argument is needed but do not want to ask their clients to waive it. The Chair said having oral argument in fewer cases would also save the Court time.
A member asked about the proposed language in Rule 2.1 barring extensions in mental health appeals. Ms. Miller said the mental health cases are expedited by statute and the Court has decided that extensions are not allowed in expedited appeals.
A member asked whether, under the proposed amendments to Rule 32, the signature block and certificate of compliance, would be part of the page count. Ms. Miller said the clerk's office will count only the substance of the document. A member asked whether the reasoning supporting a request for oral argument would be part of the page count. A member pointed out the proposed amendments required this to be included in the brief. Staff said that it was clear the members of the committee wanted to make sure only the substance of the brief was included in the page count and staff said that this opinion would be passed on to the Court.
A member said there was already language in the rule listing the items that were excluded from the page count and that an additional exclusion for the oral argument request could just be added to the list. A member asked whether parties would need to use a ruler to calculate which parts should be included in the page count and which should not. Ms. Miller said it will generally be clear from the page numbering how many pages are in the substantive part of the document.
A member observed that the title of Rule 24 would probably need to be changed because the proposed amendments to Rule 24 extended it to post conviction relief petitioners.
A member said whether there would be situations where a party would make a request for oral argument and it would be denied because the party's reasons for oral argument were inadequate. The member said that the rules indicated that oral argument would generally be allowed so it seemed a waste to require parties to require an argument in support of having oral argument. A member suggested that if members were concerned about this they should provide a comment to the Court. The member said the proposed amendments seemed to be a shift from the idea that oral argument is a given. The member said, however, that it did not seem likely that the Court would begin generally denying oral argument.
The Chair said the attitude of the Court is changing from never granting a request to waive oral argument to sometimes waiving it without a request once the briefs have been read. The Chair said this reflected a change in attitude on whether oral argument is necessary in certain types of cases, such as in those where a summary affirmance may be appropriate. The Chair said the Court's caseloads have been steadily increasing and not having oral
arguments in all cases makes it easier to schedule oral argument in cases when it is needed. The Chair said the Court is receptive to hearing from lawyers about the importance of oral argument.
A member said when a party is seeking a summary judgment in the district court, oral argument is granted if it is requested. A member said that it would be better if the proposed amendments followed trial court practice and made oral argument in an appeal automatic if it was requested. A member said while it is reasonable to require parties to request oral argument if they want it, it may be too much to require them to provide justification for the request. Ms. Miller said self-represented parties already seem to request oral argument in every case without providing reasons. A member replied that if attorneys are required to provide a supporting argument for their requests, it is likely that such arguments may become lengthy. A member said that if a request is made, oral argument should be granted and if the Court is concerned about the need in a given case, it can request more information from the party.
The Chair said that the Court wanted to retain its authority to waive oral argument if desired and making oral argument automatic on request would not be consistent with this. A member said many lawyers would never request to waive oral argument because this implicates issues related to the lawyer's responsibility to the client. The member said it is better to require the lawyer to make the request for argument and leave it in the Court's hands to decide whether to grant the request.
The Chair said that recently the Court resolved an issue of law in one case but the parties in a second case that revolved around the same (now resolved) issue of law declined to waive oral argument. The Chair said it was apparent that the attorneys did not want to tell their clients there was no point in coming to argue--they wanted the Court to make the decision.
A member said that in general, being required to request oral argument is not objectionable but having to provide a rationale for having oral argument seems to be a waste of time and space. The member said that if individual members of the committee had problems with this requirement they should submit comments to the Court. Ms. Miller said that the formal deadline for comments was coming up quickly but there was some leeway as to when comments could be submitted because the Court would not be deciding the issue immediately. Ms. Miller urged members to submit comments if desired.
RULE 39.1, N.D.R.Civ.P., Change in Location of a Hearing, Proceeding, or Trial; Change of Venue (PAGES 70-105 OF THE AGENDA MATERIAL)
Staff explained that Judge Cresap suggested Rule 39.1 be amended to be more consistent with N.D.R.Crim.P. 21, which allows a judge to follow a case when the venue is changed. Staff said that Rule 21 was based on a federal rule and was adopted in 1973, prior to court unification, while Rule 39.1 was adopted in 2002 and was adapted from location and venue statutes that were part of the statutory changes related to court unification. Staff said that Rule 39.1 also reflected the Supreme Court's views on judicial authority when venue is changed as detailed in Thompson v. Peterson, 546 N.W.2d 856 (N.D. 1996). Staff presented the committee with proposed amendments to Rule 39.1.
A member asked whether the proposed amendment would allow a judge to follow a case to a district where the judge had not been elected. Staff agreed it would and that this has long been allowed in criminal cases. A member said that in a criminal case a judge is allowed to move with the case because the prosecutor for the county where the crime took place is required to move with the case and practice evolved to allow the judge to follow the case also. The member said that it is rare that a civil case would ever have to move to a different county because of jury bias. The member said if this happened it is likely that all the attorneys would agree that the judge presiding over the case should follow the case and the Supreme Court should be requested to assign the judge to the case in the new county. The member said there may be a rare case where the attorneys would want a new judge after lengthy proceedings in the original county, but in most cases they would want the original judge to stay.
A member asked whether anyone could name an example of a civil case that needed to be moved out of a district because of juror bias. The member said it is possible a case arising in a small county within a district might need to be moved but it could be moved to a larger county within the district. Staff said Judge Cresap raised this issue because he had been involved in a civil case in which moving out of a district had been contemplated. A member said even if such a case would need to be moved from a district, the original judge could always ask the Court to be assigned to preside over it in the new district. A member said there would ample justification for the original judge to be assigned if a civil action was moved because of the complicated nature of many civil action and the need to have a judge who understood how the issues had been developed in a particular case.
The Chair asked whether there was a motion to approve the proposed changes to the rule. Staff said there were proposed technical changes related to superseded statutes that the committee might wish to consider even if it did not agree with the proposed changes related to change of venue.
Judge Hagerty MOVED to approve the proposed amendments related to superseded and considered statutes on pages 74-75 beginning at line 58. Judge Herauf seconded. Motion CARRIED.
RECOGNITION OF DEPARTING COMMITTEE MEMBERS
Justice McEvers explained that Judge Fontaine, Judge Herauf, and Judge McCullough were attending their last Joint Procedure Committee meeting. Justice McEvers thanked them for their contributions to the committee and expressed the appreciation of the Supreme Court for their many years of hard work.
RULE 37, N.D.R.Crim.P., APPEAL AS OF RIGHT TO DISTRICT COURT; HOW TAKEN (PAGES 106-124 OF THE AGENDA MATERIAL)
Staff said that Judge Cruff has asked the committee to consider amending Rule 37 to clarify how an appeal of a municipal court case to district court should be resolved if it does not result in a trial anew. Judge Cruff pointed out that neither the statutory law nor Rule 37 provides sufficient guidance or clarity as to whether the case should stay in district court for disposition or instead be remanded to municipal court for further action when there is no trial anew. Staff presented the committee with proposed amendments to Rule 37 intended to address Judge Cruff's concerns.
Judge Marquart MOVED to approve the proposed amendments to Rule 37. Judge Cruff seconded.
A member said that the language of the proposal is not clear about when a matter will be returned to the municipal court after action by the district court. The member said that the language also does not account for the fact that some cases do not involve a trial anew but are instead an appeal of an illegal sentence rendered in municipal court. Staff said that the statute allowing an appeal to district court required a trial anew upon an appeal. A member said "trial anew" was a term of art indicating that the matter starts over because there is no record to appeal from. The member said a defendant could appeal from the judgment of conviction or an order deferring imposition, either of which could follow a municipal court determination of guilt or imposition of a sentence after a guilty plea.
A member said that transfers from municipal court have been abused by defense bar as ways to delay the inevitable or to judge shop. The member said the purpose of transfers was solely to allow a defendant to exercise the right to a jury trial. The member said any amendments by the committee need to apply only to appeals for municipal court and should include a mechanism that would allow the district court to take a plea and resolve the matter
even if the resolution is different than what the municipal court decided. The member said it would be better to keep the matter in district court once there was an appeal.
A member said there are really odd things that happen in municipal court cases and defendants need a mechanism that will allow corrections of these problems to be made through an appeal to district court. The member said when there is a problem that needs to be addressed defendants need to be able to get into a court where a record can be developed and not just have the case returned to the court where the problem arose.
A member said the reason the amendments had been suggested was because the rule did not make clear what happened in a case where the matter had been settled after the appeal to district court was made but before a trial anew could be conducted. A member said it would be helpful for the meaning of "trial anew" to be defined in the rule and to clarify whether the term includes more then just a new trial. A member said "trial anew" is arguably synonymous with de novo review.
A member said that the committee could perhaps refer the matter to the legislative committee because the statute's use of the term "trial anew" seems to have hamstrung both the Supreme Court and judges attempting to handle municipal court appeals. A member said in several districts a municipal court appeal goes through an arraignment and dispositional conference and does not go straight to a new trial--instead, it is handled like a new criminal case. A member said having this process sometimes leads to the parties coming to an agreement about disposition and requesting transfer back to municipal court.
A member asked why the district court would want to lose jurisdiction or be ordered to send a matter back after an appeal or transfer out of municipal court. The member said if the parties agree to remand it, the matter should be sent back but otherwise it would be better if it stayed in district court. A member said it can create confusion when parties settle a matter after it has been appealed to district court but do address the issue of whether it should be remanded to municipal court.
A member said the statute's requirement for a trial anew on appeal ties the district court's hands when it comes to using more creative methods to resolve a municipal court appeal. A member said there is probable enough ambiguity in the term "trial anew" to allow a district court to take other actions to resolve a municipal court appeal, but that it would be preferable if the rule and statute had more clarity.
Staff said that the statute seemed to give the courts a great deal of flexibility in devising a procedure for the handling of appeals from municipal court. A member said that "trial anew" seemed to be a term of art and defining it in the rule might help clear up
ambiguities. A member said it might be appropriate to take a deeper dive into the language of the statute and Rule 37 to identify and address contradictions.
A member said money is a big concern for municipal prosecutors and judges. The member said if a case is appealed, the municipality will still get any money that comes out of the case. The member said this means that the prosecutors and judges will not object to municipal matters being resolved in district court on appeal. The member said that defense attorneys appeal to district court for a reason, generally to resolve a problem that developed while the matter was at the municipal court level. The member said the rule should be amended to make sure that the matter does not go back to municipal court after it is appealed.
A member asked what the sense of the committee was on the issue: whether appeals should be resolved by the district court and sent back to municipal court or whether they should stay in district court after resolution. The member said another alternative would be to allow the court discretion whether to keep the case in the district court or to send it back depending on the circumstances of the case.
A member asked whether the committee would be changing any substantive rights if it changed whether an actual "trial anew" was required when there was an appeal to district court. A member replied that when a case is transferred to district court, this places the jurisdiction to handle the matter with the district court and the appeal rule could be amended to mirror this, giving the district court discretion to develop a record and resolve the matter as appropriate on appeal. A member said it would be best if a matter appealed to district court remained in the district. A member said, however, if the parties requested a matter to be returned to municipal court, the district court would be required to return it.
A member asked for an explanation of why a matter that has been appealed to district court should ever go back to municipal court. Members said this happens most commonly when the attorneys have entered into an agreement to resolve the matter. A member said that to require a matter to go back to municipal court if charges had been dismissed on appeal would be counterproductive and a waste of resources. A member said this is why it would be best for the rule to state that the matter should stay in district court after appeal. A member said it would be best if this was discretionary with the court because there may be reasons why a given case should be sent back to municipal court. A member suggested that the rule make clear that the matter may be returned to municipal court upon agreement of the parties.
A member said one issue that is handled differently between municipal court and district court is placement in treatment, confinement or under home monitoring. The member said district and municipal court have different alternatives for different placement scenarios
and the defendant may want the matter to go back to municipal court to take advantage of a placement option there. A member said this would be a risky approach for a defendant because they cannot do a second appeal of the same matter and would have to rely on the municipal court to carry out the stipulation and the district court's resolution of the appealed issues.
A member said the proposed amendment addresses the issue of when a matter would get returned to municipal court after an appeal but returning any matter to municipal court seems objectionable to some committee members. A member said even under the current rule, if a party appealed a matter and then the parties agreed to a resolution, the district court would still need to take some action, such as dismissing the matter itself or returning it to municipal court. A member said the current rule does not give adequate direction on what action--dismissing in district court or a return to municipal court--is correct when an appeal is resolved by stipulation.
The Chair asked whether there were any proposed amendments. Staff said that the suggestion raised during the meeting could be incorporated into the proposed amendments during the interim before the next meeting if the committee desired. A member said there were inconsistencies in the rule that were not addressed by the proposed amendments.
By unanimous consent, consideration of the proposed amendments was postponed to the next meeting pending further revision of the proposal.
FORM 9, N.D.R.Crim.P., Conditions for Sentence to Probation, Deferred or Suspended Sentence (PAGES 125-141 OF THE AGENDA MATERIAL)
Staff said that Judge Sonna Anderson has proposed revisions to Form 9 to improve the language of the form and remove repetitive material. Staff presented the proposed amendments to the committee.
Judge Herauf MOVED to approve the proposed amendments to Form 9. Mr. Beehler seconded.
A member said the proposed amendments changed active voice sentences to passive sentences in places and this did not contribute to improved readability. A member suggested that parole and probation should be given an opportunity to provide feedback on the proposed changes.
A member said it would be good to have someone who understood how to write at a fifth grade level to make another attempt at revisions because this is the reading level of
many defendants who have to sign off on the form. A member suggested that the National Center for State Courts had resources to help courts craft readable documents. A member said that many word processing programs have accessories that can evaluate the reading level of a given document.
A member said that the proposal improves upon the existing form by eliminating repetitive language in places, which is helpful. A member said it would be a worthwhile goal to try to improve on the language in the form but that there are problems with the proposed amendments.
Judge Hagerty volunteered to try to revise the form in simpler language before the next meeting. By unanimous consent, the committee agreed to postpone discussion of the proposed amendments until the next meeting pending further revisions by Judge Hagerty.
RULE 615, N.D.R.Ev., EXCLUDING WITNESSES (PAGES 142-145 OF THE AGENDA MATERIAL)
Staff explained that the Supreme Court has requested that the committee consider amendments to Rule 615 that would allow witnesses in a trial to be excluded from the opening arguments. Staff presented the proposed amendments to the committee.
Judge Hager MOVED to approve the proposed amendments to Rule 615. Judge Marquart seconded.
A member asked whether the Court wanted witnesses to always be excluded from the opening statements. The Chair said the Court wanted to make sure that trial judges had discretion to exclude witnesses from the opening statements if appropriate. A member said the existing rule did not allow exclusion of witnesses and they can hear opening statements if they desire. A member said that, regardless of the rule, judges do have general discretion to control the trial and could conceivably exclude witnesses from openings by using this discretion.
A member asked why the proposal was limited to opening statements. The member said witnesses arguably should be excluded from pretrial proceedings when case issues and facts are discussed. The member said the language could refer to exclusion from "other proceedings in the discretion of the court." The member said this could prevent witnesses from conforming their testimony to be consistent with facts brought out in the proceedings. The Chair said that the court can always use its discretion to exclude witnesses from pretrial proceedings. A member replied it would be best to make this clear by using broader language in the proposed amendment.
A member said it would be unconstitutional under Marsy's Law to exclude a witness who is also a victim from any proceedings. A member said specific language could be added to subdivision (d) to address this.
A member said that, under the present rule and under the proposed amendments, it would be acceptable for a lawyer to discuss with a witness what will be in the opening statement. The member said the purpose of Rule 615 seems to be to prevent witnesses from hearing the testimony of other witnesses and then conforming their testimony. The member said allowing exclusions that go beyond testimony would be inconsistent with the purpose of the rule. The member said generally anyone can come in the courtroom unless the court has a good reason to kick them out. The member said that approving the proposed amendment would open the door to courts excluding witnesses and the public from any proceeding where they might hear something relating to one side's theory of the case. The member said the rule should not be extended to allow exclusions beyond the existing testimonial exclusion.
The Chair said that Tennessee and possibly another state had language allowing excluding witnesses from the openings but that most other states' rules are like the existing Rule 615. A member said that expanding exclusions under the rule would not be appropriate because over the course of a case, lawyers continue to develop and understand the facts and they need to be able to communicate with their witnesses about issues that arise along the way. The member said that witnesses do not always tell lawyers all the facts without being questioned and lawyers might not know the questions to ask until after a motion hearing or a discussion with another witness, for example.
A member said the purpose of the rule seemed to be to prevent witnesses from being tainted, regardless of the source of the taint. The member said that just limiting exclusions to testimony ignores the fact that witnesses can be tainted by sitting in on voir dire, pretrial motions or opening statements. A member said that most of the time lawyers have a pretty good idea of what the issues will be and what other witnesses might say and they will communicate this to their witnesses. The Chair said that if a court thought having a witness at a pretrial proceeding would taint the case the court could use its inherent discretion to exclude the witness from the proceeding.
The motion to approve the proposed amendments to Rule 615 FAILED.
RULE 707, N.D.R.Ev., ANALYTICAL REPORT ADMISSION; CONFRONTATION (PAGES 146-158 OF THE AGENDA MATERIAL)
Staff said that Judge Cresap has suggested that the committee consider amendments
to Rule 707 exempting the prosecution from following the rule's procedure in cases when the person who administers the test that is the subject of the analytical report will be called to testify at trial. Judge Cresap stated that the intent of the rule was to satisfy the confrontation clause when the prosecution desires to submit an analytical report in evidence, and that the presence and testimony of the person who administered the test should achieve this. Staff submitted proposed amendments to Rule 707 to the committee.
Judge Marquart MOVED to approve the proposed amendments to Rule 707. Mr. Beehler seconded.
A member said the existing rule requires the prosecution to notify the defendant of the intent to introduce the report and to serve a copy of the report. The member said under the proposed amendments it is not clear whether the prosecution must still serve the report on the defendant. The member said that it was also not clear whether the prosecution needed to disclose the proposed witness under the time standards set in the rule.
A member said that different persons could have "administered the test" depending on what sort of test was used and how the proceedings in the case developed. The member also said the prosecution should continue to be required to provide notice and to serve a copy of the report. The member said it is this notice that triggers the defendant's ability to object to the report. The member said the purpose of Rule 707 is to give the defendant notice of the state's intent to introduce an analytical report and in practice it makes the prosecution provide notice and it gives the defendant a right to cross examine.
Staff said the proposal came out of a situation where the person who administered the test was present to testify and the defense objected because the Rule 707 procedure had not been followed. A member said the prosecution should not be able to cure a failure to provide notice and to follow Rule 707 by providing a witness at trial. The member said the rule is a two-way street, the prosecution needs to give notice and the defendant needs to invoke the right of confrontation. The member said the defense is unlikely to be prepared to address a report submitted at trial if the required disclosures are not provided.
A member said that Rule 707 has been in place for years and while initially there were some issues with compliance these had been resolved over time. A member said the rule works well as it is and there would be new problems if the proposed amendments were adopted. The member said that while some state's attorney's offices are lax in providing discovery under N.D.R.Crim.P. 16 they generally follow the specific requirements of Rule 707.
A member said the rule provides a clear procedure and clear deadlines that both the
prosecution and defense understand and it should not be changed. The member said it is easy for prosecutors to establish routine procedures that comply with the rule. A member said if a prosecutor drops the ball and fails to comply with the rule, they can ask for a continuance to get time to comply.
The motion to approve the proposed amendments to Rule 707 FAILED.
RULE 21, N.D.R.App.P.,WRITS (PAGES 159-166 OF THE AGENDA MATERIAL)
Staff said that the Supreme Court has requested that the committee consider amendments to Rule 21 that would make its language on responses to writ petitions consistent with language in Rule 40 on responses to petitions for rehearing. Staff submitted proposed amendments to Rule 21 to the committee.
Judge McCullough MOVED to approve the proposed amendments to Rule 21. Judge Marquart seconded.
Judge Marquart MOVED to delete the proposed new sentence starting on page 160, line 21. Judge McCullough seconded. Motion CARRIED.
A member asked whether "requests" on page 160, line 20, should be "permits." A member said "requests" should be retained because if "permits" was used motions and accompanying documents would be submitted regardless of whether the Supreme Court desired them.
By unanimous consent, "permitted" on page 162, line 55, was changed to "requested."
The motion to approve the proposed amendments to Rule 21 CARRIED.
RULE 11.2, N.D.R.Ct., WITHDRAWAL OF ATTORNEYS (PAGES 167-172 OF THE AGENDA MATERIAL)
Staff explained that State Court Administrator Sally Holewa has suggested that the committee consider amending Rule 11.2 to allow automatic withdrawal of attorneys 90 days after closure of a case. Ms. Holewa states that this would allow attorney names to be automatically removed from cases that are long closed and with which the attorneys are no longer associated. Staff presented proposed amendments to Rule 11.2 to the committee.
Judge Marquart MOVED to approve the proposed amendments. Judge Hager seconded.
A member asked whether the party names would disappear from the Odyssey case file if the proposed changed was implemented. Staff said that would depend on how IT addressed the issue technically. The consensus of the committee was that attorney names should not disappear from the file but should perhaps be lined through as is done currently when indigent counsel are replaced.
A member said this seemed to be a situation where a rule change was being contemplated as a response to a rarely occurring issue. The member said changing the rule to automatically disassociate attorneys from cases may create unanticipated problems.
A member said the situation that the proposal seeks to address arises whenever a paper file is scanned into Odyssey, which is a fairly regular occurrence. The member said the time frames in the proposal are probably too short and should be adjusted to perhaps one year after the case is closed.
A member said that, if the rule is changed, attorneys who wanted to be included in future filings in a case would need to file some sort of request not to be automatically removed. The member said the better approach would be to follow longstanding procedure under which an attorney who wanted to be taken off a case would need to file a motion to withdraw. A member said the proposed change could create problems for both clients and attorneys if clients assumed that attorneys were receiving notices related to a case when in fact they had been automatically removed. The member said it would be best to continue to require attorneys to move to withdraw when they wished to leave a case.
A member said that if an attorney suddenly receives service on a case they are no longer involved in, they can request to withdraw. A member said that not receiving service when you should is a bigger problem than accidentally receiving service when you are no longer involved with a case.
A member said that in divorce judgments, attorneys often include language that, once a given time passes after entry of judgment, the attorneys of record are withdrawn from the case. The member said the proposed amendment would be convenient for attorneys who do not include this language in the case documents. A member said that attorneys who receive service of documents once they are no longer associated with a case may incur obligations to investigate the service and to perhaps track down the client to discuss the service.
A member said having an automatic withdrawal after a time period set in the rules would be interfering with the attorney client relationship. A member said attorneys should send a closure letter to the client upon the closing of a case. A member said that under the rule an appearance may only be withdrawn upon leave of court so without automatic
withdrawal, the attorney would need to file a motion.
A member said the indigent defense would likely back the proposed amendment. The member said indigent defense appointments end 60 days after the case is closed but their names are kept on the record. The member said indigent defense attorneys likely receive a multitude of notices on cases with which they are no longer involved. A member said it is beneficial to the court to have the lawyers still associated with the case even if their appointments have ended so they can contact their clients and let them know if something is happening in a case.
A member said the proposed language starting the automatic withdrawal clock running on the closure of the matter might not be understandable by people who do not work in court administration. The member said the language would need to be adjusted if the committee wanted to follow up on the proposal.
The motion to approve the proposed amendments to Rule 11.2 FAILED.
RULE 41, N.D. Sup. Ct. Admin. R., ACCESS TO JUDICIAL RECORDS (PAGES 173-208 OF THE AGENDA MATERIAL)
Staff said that at the April meeting, the committee had a general discussion about whether juror addresses should be available to the public. Staff said the consensus of the committee seemed to be that public access to juror addresses should be restricted but that parties and their attorneys should be able to obtain them. Staff presented the committee with proposed amendments to Rule 41 intended to address the committee's concerns.
Judge Fontaine MOVED to approve the proposed amendments to Rule 41. Judge Marquart seconded.
A member said that the juror addresses should not be part of the public record but should still be accessible to lawyers. A member said in federal court, the juror names are not revealed until voir dire. The Chair said lawyers have commented that they are getting less information about jurors.
A member asked whether the address of a juror was part of their qualification information and therefore something that cannot be withheld from the public absent a court order. A member said that the way the proposed amendment was structured, the address would be kept out of the public record while the other qualification information would be treated as public. A member said that jurors are asked to give up much of their privacy but their address should be protected.
A member said that during the Dakota Access Pipeline trials, the court referred to the jurors only by number but the attorneys had their names and addresses. The member said that some South Central Judicial District judges have continued this practice with all jury trials.
A member asked whether it would be useful to define whether residential or employment addresses would be protected under the proposal. A member thought it might be better to use the broad term "address." A member said addresses were not protected under the current rule. A member said in general, people should have a right of privacy for their street address.
The motion to approve the proposed amendments to Rule 41 CARRIED.
MODIFICATION OF JUDGMENT PROCEDURE (PAGES 209-229 OF THE AGENDA MATERIAL)
Staff said that Unit 2 Court Administrator Rod Olson had suggested that the committee discuss modifying judgment procedure in civil cases. Mr. Olson stated that the requirement that a separate judgment be prepared after an order for judgment has been entered is wasteful both for attorneys and court staff. Mr. Olson suggests that a typical Findings of Fact, Conclusions of Law and Order for Judgment could be converted to a judgment by the addition of language to the document, rather than by preparation of a new and repetitive document.
A member said that in the East Central Judicial District, there is a delay before the judgment is entered after an order. The member said one reason for the delay is because the clerk's office has to review the proposed judgment to ensure that it is consistent with the findings of fact. The member said it is a longstanding practice in North Dakota to have the judgment entered separately after the order for judgment is issued.
The Chair asked whether, in family law cases, there was material in the findings that was required to be left out of the judgment. A member said that in Minnesota one document results combining everything including the findings of fact. The member said that when there are findings that are not wanted in the judgment these are recorded separately.
The member said the downside of using only one document is that there are often items in the findings that should not be included in a judgment that is going to be used outside the courthouse. A member said the findings of fact are a public document and cannot be hidden. A member said if a member of the public wants to see findings of fact, however, they need to go look at the courthouse. The Chair noted that there had been proposals to allow the public easier access to documents not currently available remotely.
A member said that the driving force behind Mr. Olson's concerns is that clerk's offices generally are short staffed across the state. The member said that comparing the findings to the judgment is a labor intensive operation that takes clerk time. A member said it should be an attorney responsibility to make sure that the judgment conforms to the findings.
A member said that lawyers in the past commonly appended simple judgment statements indicating that the Findings of Fact, Conclusions of Law and Order for Judgment constituted the judgment of the court. The member said that the use of separate judgment documents seemed to stem from the transition to Odyssey.
A member asked what the downside of allowing a simple judgment statement to be appended to the order documents would be. A member said in divorce cases, there are often multiple amendments made to the original order and it is useful to have an amended judgment that cleanly incorporates all the amendments. A member said in Minnesota, the amendments tend to be stated piecemeal and it takes some work to determine what the most recent judgment provides.
A member said under Mr. Olson's suggestion, the conclusions of law stated by the court would become the judgment. A member said under current practice, the conclusions of law essentially are taken and placed into a separate judgment document. A member said appending a statement making the conclusions of law the judgment would be a simpler solution.
A member asked what would happen if a judge wanted to do a memorandum opinion. A member responded that the lawyer would then need to take the memorandum opinion, separate out the findings of the fact and conclusions of law, and incorporate these into the judgment.
A member said the idea of not requiring a separate judgment that restated everything was worth taking a look at. A member said it might speed up the whole process because it would eliminate the need for a waiting period before judgment is entered. The member said the prevailing party is not always quick to prepare a proposed judgment from the findings of fact and conclusions of law.
A member said that any rule change should allow an option for the lawyers to prepare a separate judgment if necessary in a particular case, such as when there are salacious findings.
A member said that North Dakota currently has summary real estate dispositions to
record transactions without the need to record the judgment. The member said this has not created problems and that going to a simpler judgment system like Minnesota could also make things easier.
A member asked whether a simpler judgment would work with collection cases. The member said the clerk has to check the costs and disbursements in these cases and make sure they are in order in the judgment before signing off on it. A member said under statute the clerk would still be responsible for this and these would need to be added to the simple judgment, which the clerk would need to sign. A member said collection cases are a large part of the court workload and any change in judgment procedure would need to take these cases into account.
A member asked whether the committee could get an estimate of how much time and money could be saved if a change was made. Staff said that Mr. Olson might be able to provide this.
A member said if the committee was not opposed to the concept of the proposed change, then staff should prepare proposed rule amendments for the committee's consideration at a future meeting.
A member said the main downside of a simple judgment is that when the findings of fact and conclusions of law are amended, the court, attorneys and parties have to spend more time figuring out what the state of the case is. The member said if a new judgment is prepared after each amendment, this simplifies understanding the case. The member said there are not many cases that have multiple amendments. A member suggested that if the rule is amended, it provide for a separate judgment to be prepared in cases where there are multiple amendments.
A member said the main advantage to using simple judgments would be cutting the waiting time before a proposed judgment is prepared. A member said it would be necessary to look carefully at how much time needs to be allowed for the calculation of costs and how these should be made part of the judgment.
A member said that the findings of fact, conclusions of law and order for judgment would necessarily need to be entered into Odyssey before the same document with simple judgment appended was entered. The member said the committee needs to consider the logistics of this process before approving a rule change. The member said the main issue would be how to determine which was the final document in Odyssey when both documents are almost identical. A member said this could also be confusing to attorneys who will be served with both documents.
A member said that the costs need to be included in the final judgment and having a document that purports to be the final judgment that does not include costs would be confusing. A member said that the costs issue is not handled consistently by clerks statewide--some will not sign a costs judgment unless the costs are stated in the order even though the rule gives attorneys 14 days to file a statement of costs after the order is entered. The attorney said a separate judgment document is useful because the costs can be clearly stated in it. A member said because of the way the rules are structured, there could be a 14-day gap before the clerk has the information to include costs and disbursements on the judgment, no matter how simple the judgment form itself might be. A member said if the simple judgment is another part of findings document as prepared by the court, the judgment is final once the package is signed, there is no 14-day review period.
Staff was instructed to prepare proposed rule amendments for the committee's consideration at the next meeting.
The meeting adjourned at approximately 12:40 p.m. on September 28, 2018.
Michael J. Hagburg