SYNOPSES OF PROPOSED AMENDMENTS
SUBMITTED BY THE JOINT PROCEDURE COMMITTEE
A. NORTH DAKOTA RULES OF CIVIL PROCEDURE Rule 4, "Persons Subject To Jurisdiction--Process--Service."
Rule 4, "Persons Subject To Jurisdiction--Process--Service."
Proposed subdivision (c) authorizes a defendant to serve a written demand upon the plaintiff to file the complaint. The purpose of the amendment is to eliminate the unfairness of requiring a defendant to pay the filing fee to resolve or dispose of a case, and to prevent commencement of frivolous harassment cases. If the plaintiff does not file the complaint within 20 days after service of the demand, service of the summons is void.
The consequences will be severe if the plaintiff fails to file within 20 days after service of the demand and the time for commencement of the action expires. To ensure a plaintiff is aware of the potential consequences, the proposal requires the demand to contain a cautionary notice that if the complaint is not filed within 20 days, service of the summons is void. As another precautionary measure, the proposal also requires personal service of the demand under Rule 4.
Proposed subdivision (d) provides an alternative means of service. The proposed amendment authorizes personal service by giving a copy of the summons, at the office of the process server, to an individual's spouse if the spouses reside together.
The North Dakota Sheriff's Association is requesting the amendment. Apparently the number of papers being served is increasing significantly, and residence service is becoming increasingly difficult due to the increased number of spouses working outside the home. The amendment will alleviate the necessity of going to the person's home if their spouse is willing to accept service at the office of the process server. The Committee believes any risk of ineffective service under the proposal already exists under the current rule. Rule 5, "Service And Filing Of Pleadings And Other Papers."
Rule 5, "Service And Filing Of Pleadings And Other Papers."
The proposed amendment to subdivision (a) will prevent ex parte contacts. The proposal expands upon Rule 7.1, NDROC, by requiring any paper filed with the clerk of court or submitted to the judge to be served on the other parties.
Proposed subdivision (d) requires the summons and complaint to be filed before a subpoena may be issued. This is consistent with the requirement a subpoena contain a civil action number. See Rule 45(a), N.D.R.Civ.P. The effect of the proposal is to allow court involvement in those cases that are going to be litigated, while preserving commencement by service of a summons.
The proposal also requires the plaintiff to serve a notice of filing the complaint upon the defendant. The defendant must then file the answer within a reasonable time after service of notice of filing the complaint. The proposal is intended to ensure a defendant is aware the complaint has been filed and to eliminate delay in filing the answer. Rule 38, "Jury Trial Of Right."
Rule 38, "Jury Trial Of Right."
This technical proposal follows the 1993 federal amendment to Rule 38, Fed.R.Civ.P. The provision requiring a demand for a jury trial to be filed is moved from subdivision (e) to subdivision (b). The change is appropriate because subdivision (b) concerns the "demand" for trial by jury, while subdivision (e) concerns "waiver." Rule 50, "Judgment As A Matter Of Law In Jury Trials."
Rule 50, "Judgment As A Matter Of Law In Jury Trials."
The proposal amends Rule 50 in three respects. First, the proposal makes stylistic changes. Second, the proposal requires Rule 50 post-judgment motions to be "served" and "filed" within the prescribed period. Currently, the rules governing post-judgment motions are inconsistent as to whether post-judgment motions must be "served," "filed," or "made" within the prescribed period. Third, the proposal extends the time from 10 to 15 days for renewing a motion for judgment as a matter of law, and for making a motion for a new trial by a party against whom judgment as a matter of law has been entered. Because filing by mail is not complete until receipt, the Committee feels additional time is needed to compensate for time consumed in mailing. Rule 52, "Findings By The Court."
Rule 52, "Findings By The Court."
This proposal is similar to the proposed amendment to Rule 50. The proposal achieves consistency with other rules governing post-judgment motions by requiring a motion for amended findings to be "served" and "filed" rather than "made," and by extending the time for moving for amended findings from 10 to 15 days. The proposal also contains stylistic changes. Rule 54, "Judgment--Costs."
Rule 54, "Judgment--Costs."
The proposed amendment extends the time for serving and filing a post-judgment motion for attorneys' fees from 10 to 15 days to achieve consistency with the time generally allowed for making other post-judgment motions. Rule 59, "New trials--Amendment Of Judgments."
Rule 59, "New trials--Amendment Of Judgments."
The proposal achieves consistency with other rules governing post-judgment motions. The operative time as to when Rule 59 post-judgment motions must be made is changed to "served" and "filed." The period during which a court may order a new trial on its own initiative, and the time for making a motion to alter or amend the judgment, is extended from 10 to 15 days. The proposal also contains stylistic changes.
B. NORTH DAKOTA RULES OF CRIMINAL PROCEDURE Rule 5.1, "Preliminary Examination."
Rule 5.1, "Preliminary Examination."
The proposed changes to Rule 5.1 are stylistic. Rule 43, "Presence Of The Defendant."
Rule 43, "Presence Of The Defendant."
The proposal follows Rule 43, Fed.R.Crim.P. In subdivision (b), the proposal clarifies if a defendant is voluntarily absent from trial after initially being present, the absence will be considered a waiver of the right to be present. A waiver of the right to be present will be assumed even if the defendant has not been informed by the court of the obligation to remain during trial. The proposal also provides a court may sentence a defendant who was present during trial, or pleaded guilty, but flees before sentencing.
Proposed subdivision (c) expands the types of organizational defendants not required to be present. The proposal also provides a defendant is not required to be present when a proceeding involves only a conference or hearing upon a question of law.
The explanatory note clarifies subdivisions (b) and (c) do not give a defendant the right to be absent even though a defendant may waive the right to be present in certain instances. The court has discretion whether to require the presence of the defendant. Form 7, "Criminal Judgment And Commitment."
Form 7, "Criminal Judgment And Commitment."
The Committee proposes elimination of current Form 7. The form is confusing because the form does too many things by providing sentencing options. Rather than having an omnibus form, the Committee proposes adoption of separate forms, as follows: 1) Form 7, Criminal Judgment and Commitment; 2) Form 7(a), Criminal Judgment and Commitment (Partial Suspension); 3) Form 7(b), Criminal Judgment and Commitment (Suspended Execution of Sentence). Form 8, "Order Deferring Imposition Of Sentence."
Form 8, "Order Deferring Imposition Of Sentence."
The proposal makes stylistic changes to Form 8.
C. NORTH DAKOTA RULES OF EVIDENCE Rule 412, "Admissibility Of Alleged Victim's Sexual Behavior Or Alleged Sexual Predisposition In Criminal Proceeding."
Rule 412, "Admissibility Of Alleged Victim's Sexual Behavior Or Alleged Sexual Predisposition In Criminal Proceeding."
The proposal is patterned after the rule approved by the United States Supreme Court and submitted to Congress on April 29, 1994. The proposed rule supersedes the following sections of the North Dakota Century Code: Section 12.1-20-14, "Admissibility of evidence concerning reputation of complaining witness--Gross sexual imposition and sexual imposition;" Section 12.1-20-15, "Credibility of complaining witness attacked - Procedure;" and Section 12.1-20-15.1, "Admissibility of evidence of victim's manner of dress in sex offense cases."
Subdivision (a) of the proposal contains a general prohibition against evidence of an alleged victim's other sexual behavior or sexual predisposition in a criminal proceeding involving alleged sexual misconduct.
Subdivision (b) allows admission of certain specific instance evidence of sexual behavior if otherwise admissible under the Rules of Evidence. Specific instance evidence of sexual behavior by an alleged victim is admissible to prove a person other than the accused was the source of semen, injury, or other physical evidence. Specific instance evidence of sexual behavior by the alleged victim with the accused is admissible to prove consent or if offered by the prosecution. Subdivision (b) also contains a residual exception recognizing a defendant may have a constitutional right to introduce evidence otherwise precluded by the rule.
Subdivision (c) contains the procedure for admission of specific instance evidence of sexual behavior. A written motion, requesting admission of evidence, must be filed 14 days before trial. For good cause shown, the motion may be made at a later date, as in cases where circumstances justifying introduction of the evidence do not become apparent until trial. Before admitting Rule 412 evidence, the court must hold a hearing in camera. The alleged victim and the parties must be afforded the right to attend and be heard. To protect the privacy of the victim, all motion papers and any record of the hearing must be kept under seal unless the court orders otherwise.
D. NORTH DAKOTA RULES OF APPELLATE PROCEDURE Rule 2.1, "Mental Health Appeals Under Chapter 25-03.1, North Dakota Century Code."
Rule 2.1, "Mental Health Appeals Under Chapter 25-03.1, North Dakota Century Code."
Section 25-03.1-29, N.D.C.C., provides for expedited appeal in mental health cases. To accomodate the statute, to expedite the appeal process, and to provide a meaningful opportunity for appellate review, the proposal allows an appellant to file a motion for a temporary stay with the notice of appeal. Instead of requiring a brief to be filed with the notice of appeal, the proposal requires specifications of error to be filed with the notice of appeal which specify the grounds for appeal. The proposal gives the appellant 3 days to file a brief after notice of appeal is filed. Rule 4, "Appeal--When Taken."
Rule 4, "Appeal--When Taken."
To obtain consistency with a Rule 59, N.D.R.Civ.P., motion to alter or amend the judgment, the proposal requires a Rule 60, N.D.R.Civ.P., motion for relief from the judgment to be "served and filed no later than 15 days after notice of entry of judgment" in order to terminate the running of the time for appeal. The proposal is intended to avoid argument as to whether a motion is a motion to alter or amend the judgment or a motion for relief from the judgment. Rule 10, "The Record on Appeal."
Rule 10, "The Record on Appeal."
Proposed subdivison (c) requires the person preparing the transcript to file a computer diskette of the transcript with the clerk of the supreme court. Having a diskette copy of the transcript will make the transcript easier to search.
Currently, Rule 10 and AR 39 both contain specifications for preparation of a transcript. Proposed subdivision (e) consolidates the specifications into Rule 10. Rule 30, "Appendix To The Briefs."
Rule 30, "Appendix To The Briefs."
The proposal requires the agency docket sheet to be included in the appendix when an appeal is taken under the Administrative Agencies Practice Act. Having the agency docket sheet in the appendix will make it easier to locate documents. Rule 35.1, "Summary Disposition."
Rule 35.1, "Summary Disposition."
Currently, Rule 35.1 only provides for affirmance by summary opinion. The proposal provides for reversal by summary opinion if a previous controlling appellate decision is dispositive of the appeal.
E. NORTH DAKOTA RULES OF COURT Rule 6.7, "Juror Note Taking."
Rule 6.7, "Juror Note Taking."
The proposal gives a court discretion to allow jurors to take notes in either a civil or criminal trial. If note taking is allowed, the court is required to give a cautionary instruction.
All notes taken must be returned after deliberation and destroyed at the direction of the court. Rule 6.8, "Examination Of Witnesses."
Rule 6.8, "Examination Of Witnesses."
The proposal gives a court discretion in a civil case to allow a juror to submit a written question the juror would like asked a witness. Upon receipt of a written question, the court is required to review the propriety of the question with counsel on the record outside the hearing of the jury. The court is responsible for asking the question. Allowing juror questions to be answered will prevent confusion, misunderstanding, and error.
F. NORTH DAKOTA SUPREME COURT ADMINISTRATIVE RULES Rule 39, "Recording District Court Trials And Proceedings, And Preparing Transcripts."
Rule 39, "Recording District Court Trials And Proceedings, And Preparing Transcripts."
The proposal provides for preparation of a transcript in the form prescribed by Rule 10, N.D.R.App.P. The specifications currently in Rule 39 are consolidated into Rule 10, so the specifications for a transcript are located in one rule.