MINUTES OF MEETING
Joint Procedure Committee
April 25-26, 2002
TABLE OF CONTENTS
Rule 25, N.D.R.App.P. - Filing and Service 3
Rule 3.3, N.D.R.Ct. - Change of Judge for Postjudgment Motion or Proceeding 5
Appendix F, N.D.R.Ct. - Alternative Dispute Resolution Statement Form;
Rule 16, N.D.R.Civ.P. - Pretrial Conferences, Scheduling, Management;
Rule 40, N.D.R.Civ.P. - Assignment of Cases for Trial 8
Rule 23, N.D.R.Civ.P. - Class Actions 10
Rule 34, N.D.R.App.P. - Oral Arguments 12
Uniform Mediation Act 14
Rule 2.2, N.D.R.Ct. - Facsimile Transmission 14
Rule 47, N.D.R.Civ.P. - Jurors 15
Rule 13, N.D. Sup. Ct. Admin. R. - Judicial Referees 16
Rule 35, N.D.R.App.P. - Scope of Review 17
Rule 36, N.D.R.App.P. - Entry of Judgment 18
Rule 37, N.D.R.App.P. - Interest on Judgment 20
Rule 38, N.D.R.App.P. - Damages and Costs--Frivolous Appeal or Dilatory Prosecution of Appeal 22
Rule 39, N.D.R.App.P. - Costs 22
Rule 40, N.D.R.App.P. - Petition for Rehearing 25
Rule 41, N.D.R.App.P. - Mandate; Contents; Issuance; Effective Date; Stay 25
Rule 42, N.D.R.App.P. - Dismissal 26
Rule 43, N.D.R.App.P. - Substitution of Parties 26
Rule 45, N.D.R.App.P. - Duties of Clerk 27
Rule 47, N.D.R.App.P. - Uniform Certification of Questions of Law 27
Rule 47.1, N.D.R.App.P. - Certification of Questions of Law by District Court 27
Rule 49, N.D.R.App.P. - Effective Date; Statutes and Rules Superseded 29
Appellate Rules Package 30
For the Good of the Order 30
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CALL TO ORDER
The meeting was called to order at approximately 1:00 p.m., on April 25, 2002, by Justice Dale V. Sandstrom, Chair.
ATTENDANCE
Present:
Justice Dale V. Sandstrom
Honorable Bruce E. Bohlman
Honorable M. Richard Geiger
Honorable Gail Hagerty
Honorable Ronald L. Hilden
Honorable Lawrence A. Leclerc
Honorable David W. Nelson
Honorable Mikal Simonson
Mr. Michael R. Hoffman
Mr. John C. Kapsner
Professor Larry Kraft (April 25 only)
Mr. Daniel S. Kuntz
Mr. Ronald H. McLean
Ms. Sherry Mills Moore
Mr. Stephen W. Plambeck
Absent:
Honorable Donovan Foughty
Honorable Thomas J. Schneider
Mr. James T. Odegard
Ms. Cathy Howe Schmitz
Mr. Michael G. Sturdevant
Staff:
Mike Hagburg
Colette Bruggman
PRELIMINARY MATTERS
Justice Sandstrom welcomed the Committee's members and reviewed the schedule for the meeting. Colette Bruggman, Deputy Clerk of the Supreme Court,
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was welcomed to the meeting.
Professor Kraft MOVED to approve the minutes as distributed. Judge Bohlman seconded.
A member asked why the word overwhelming was used in referring to the Committee's action on Rule 3 at the December meeting. It was explained that the precise vote was not recorded and the word was used to indicate that a substantial majority had concurred in the action.
The motion to approve the minutes CARRIED.
RULE 25, N.D.R.App.P. - FILING AND SERVICE (PAGES 22-52 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to N.D.R.App.P 25.
The Chair explained that the Supreme Court needs a mechanism to accept documents electronically, not as a substitute for paper filing but as an alternative. The Chair explained that numerous state and federal courts had begun taking steps to accept documents electronically. The Chair said it was preferable to have a system that was flexible and that would not force users to obtain proprietary software or equipment.
The Chair said that if the Supreme Court began receiving electronic filings in significant quantities, the Court would need to take steps to recoup the cost of making necessary paper copies of the electronic documents. Such steps could include asking the Legislature for authority to impose an additional fee on parties who file electronically. The Chair suggested that, even with such a fee, it would likely still be less expensive for parties to file electronically since they would no longer need to ship documents to the Court.
Judge Leclerc MOVED to adopt the proposed amendments for discussion purposes. Judge Hagerty seconded.
A member asked whether the definition of paper in the amendment includes
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the record and the transcript. The Chair explained that the Supreme Court currently receives electronic and paper copies of the transcript. The member asked whether any analysis had been done on the fiscal impact of switching to filing of electronic copies only. Ms. Bruggman reported that no fiscal analysis had yet been completed.
A member asked whether the rule section prohibiting facsimile filing could be retained so that the clerk's office would not have to accept fax filing during the period in which electronic filing rules were being developed. The Chair explained that technology was being worked on that would allow the clerk's office to accept fax filings in the same way it would accept electronic filings, so that fax filing would be a legitimate alternative means of electronic filing.
A member asked whether the Supreme Court had developed any administrative rule to cover electronic filing. The Chair explained that the Court had worked on an emergency rule in the wake of the anthrax scare, but that the rule would have to be further refined. The Chair said that one area where work would need to be done was on whether parties should be able to serve documents electronically when documents were filed electronically.
Mr. McLean MOVED to remove Rule 25's fax filing prohibition at page 26, lines 21-22, and to reletter the subparagraph. Judge Simonson seconded.
A member asked whether it would be clear to parties that facsimile filing was a form of electronic filing. The Chair said that this would be explained in the administrative rules on electronic filing. A member said that if the fax filing prohibition was removed, parties might go ahead and file by fax without reference to the administrative rules on electronic filing. A member suggested that it be set forth in the rule that electronic means includes facsimile transmission.
A member asked why facsimile filing had been prohibited in the first place. Ms. Bruggman explained that the clerk's office did not even have its own fax machine until 2001, and that the fax equipment it had was not capable of receiving an original and seven copies of a document. In addition, the rules require documents to be in a certain form with colored covers, which could not be done with fax filing. However, because the Court desires to move toward electronic filing, it is working on ways to allow the clerk's office to receive documents filed by fax the same way it receives e- mail.
The Chair explained that faxing was a method of electronic filing that could be used by parties who did not have access to e-mail, and that because almost all law
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offices have fax machines allowing filing by fax would open up the possibility of electronic filing to most parties without requiring an investment in new equipment.
A member asked whether the electronic filing provision would make it difficult for pro se parties to file documents. The Chair said that there was no desire to preclude paper filing. Instead, the desire was to provide an alternative to parties who wanted to file electronically. The member suggested, however, that parties might be required to file electronically if the mail were attacked again. The Chair explained that, in such a case, with the prohibition on fax filing removed, any party would be able to file a document electronically with the Court.
A member asked how the Supreme Court would confirm receipt of electronically filed documents. Ms. Bruggman explained that the clerk's office e-mail was set up to send an automatic response whenever a document is filed electronically. Once technology is in place to receive faxes by computer, the same sort of message will be sent when a fax is received.
A member wondered what percentage of attorneys have e-mail. The Chair explained that the percentage of attorneys with some sort of access to e-mail is climbing, although a significant number of attorneys still do not have e-mail. The Chair said that most firms have a published facsimile number. A member said that, because all attorneys do not have e-mail, service by e-mail should not be allowed unless all parties agreed beforehand.
The motion to amend the rule CARRIED unanimously.
The Committee voted unanimously to include Rule 25 as amended in the Appellate Rules Package.
Mr. Kapsner joined the meeting.
Staff provided an overview of the proposed amendments to N.D.R.Ct. 3.3.
Mr. Kuntz MOVED to adopt the proposed amendments for discussion purposes. Judge Bohlman seconded.
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A member said that the language in paragraphs (a)(2) and (a)(3) of the proposed rule limiting postjudgment reassignment to judges from the same judicial district was unnecessary and suggested that the language could be deleted.
Judge Nelson MOVED to strike the language "from the same judicial district" on page 56, lines 12 and 14. Judge Geiger seconded. The motion CARRIED 14-1.
A member commented that the system of judge reassignment works as it exists and asked why the rule needed to be amended at all. The member said that the proposed language allowing parties to object to judge reassignments would create problems for the courts. Another member commented that the objection provision would make it more difficult to schedule judges.
Judge Hagerty MOVED to delete the objection provision at page 56, lines 16- 19. Judge Leclerc seconded.
A member said that the objection provision was designed to allow parties to object to having a second judge handle a matter after the parties had worked a considerable time with the original judge. Another member commented that, even with the objection provision, parties would not be able to block reassignment of the original judge in a matter. It was pointed out that parties are allowed by statute to bump judges in new postjudgment proceedings.
A member said it was important for parties to be able to keep the original judge in complicated cases, and allowing a new judge to be assigned postjudgment in a complex matter would cause a waste of time and money for the parties. The member suggested that the objection provision was important because it would allow the parties to indicate that they wanted to keep the same judge. Another member responded that it was simply not possible for the parties to keep the same judge in all situations.
A member explained that the amendments were proposed because there was thought to be a prohibition under the law to postjudgment reassignment of judges when not specifically allowed under the rule. The Chair explained that such a prohibition impaired judge assignment in rural districts where judges were required to travel to distant counties to hear matters. A member said that the districts did not wish to require people in rural locations to come to a central city to have their cases heard when it was possible to bring judges to rural areas under a rotation system.
The Committee discussed whether judges reaassigned post judgment could be
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bumped under state law. A member said that postjudgment matters are new matters and that, if a party is not satisfied with a new judge assigned post judgment, that judge could be bumped. Another member said, however, that child support enforcement matters (as opposed to modification matters) were not new matters under statute and judges reassigned to preside over a child support enforcement action could not be bumped. A member said that child support enforcement matters routinely were handled by whatever judge was available.
A member asked why the proposed objection provision was necessary if new judges could be bumped under statute. Another member explained that the provision was suggested to give parties, who possibly had been involved in a long-running complex matter, a means to request to keep the judge they had been working with prior to judgment. A member suggested that parties would still be able to make such a request, regardless of whether the objection provision was retained. The member, however, insisted that courts could not be required to provide a specific judge to handle a matter.
The motion to delete language on page 56, lines 16-19, CARRIED 9-6. Corollary form changes were approved without objection.
A member suggested that all the proposed changes be removed from the rule. The chair explained that if the member did not approve of amending the rule, the member could vote against passing the amendments. The member said that the proposed amendments were unnecessary because the judge assignment and reassignment system works as it currently exists. Another member said that, in rural parts of the state, the system may not work so well, and argued that the proposed changes were necessary.
A member asked if the rule as amended would apply to cases where a motion was made to change child custody or visitation. Another member explained that the proposed changes applied specifically to child support enforcement and modification. A member explained that child support cases were different from child custody or visitation cases because reaching a decision in child support cases requires only the mechanical application of the guidelines.
A member observed that the proposal represented a major change from past court philosophy under which judges were required to stick with a case under all circumstances. Another member said that the proposal recognized the fact that rural areas no longer have a single judge resident who is assigned to handle area cases.
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The Committee voted 14-1 to send Rule 3.3 as amended to the Supreme Court.
Staff provided an overview of the proposed amendments to N.D.R.Ct. Appendix F, N.D.R.Civ.P. 16 and N.D.R.Civ.P. 40.
Judge Hagerty MOVED to adopt the proposed amendments for discussion purposes. Ms. Moore seconded.
A member suggested that proposed language in Rule 16 be changed to limit the types of cases to which scheduling orders would apply. Another member said that the proposed changes to Rule 16 were unworkable because lawyers, rather than courts, manage cases in North Dakota. The member said that answers in many North Dakota cases are not filed until the case are ready for trial, so having court involvement in scheduling or case management begin when an answer is filed would not be helpful. The member said that, for this reason, having the filing of an answer trigger the ADR statement filing requirement is not effective.
A member said that having the courts attempting to control scheduling would not work in the real world. The member said that, regardless of the good intentions of the court and the parties, when scheduling orders are entered early in a matter they need constant adjustment and amendment. The member said lawyers should be allowed to work cases and handle scheduling on their own unless they believe they need the court's assistance, at which point they can request a voluntary Rule 16 scheduling conference. The member said lawyers do not want to have to deal with additional multiple unrealistic deadlines.
Staff responded that the Case Flow Management Committee was considering procedures that would allow the courts to take more control of case scheduling even if the Committee declined to pass the proposed amendments. A member said that the Case Flow Management Committee had not yet decided on what scheduling and case management steps were appropriate.
A member expressed opposition to having state courts manage litigation in North Dakota. The member stated that the courts manage litigation in the federal
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system, but that the parties manage litigation in the state system. A member stated that having the courts manage litigation is workable in the federal courts because the federal courts have an employee for every case. The member said it was unrealistic to have the state courts attempt to manage litigation because they do not have the resources that federal courts have.
A member said that removing the note of issue requirement would place an undue burden on urban courts because urban courts would then have to find another way to monitor the status of thousands of cases. The member said that urban courts would be forced to issue generic scheduling orders to meet the proposed Rule 16 requirements because urban courts do not have the staff to meet with parties and consider scheduling decisions in all cases. The member said it would be a waste of court resources to impose a rule that would stress the court system's resources and that the courts would not be able to obey.
Mr. Kapsner MOVED to substitute motion to adopt the proposed amendments in alternate Appendix F at pages 70-72. Judge Leclerc seconded. Motion to substitute CARRIED 13-2.
A member said that some changes to Appendix F were appropriate because the requirement that ADR information be provided within 60 days of filing was unworkable. The member commented that having the parties provide some scheduling information to the court with the ADR statement would be reasonable, but only if changes were made recognizing that the 60-day ADR information deadline was unreasonable.
A member asked why the Committee was considering changes related to ADR when this was the business of the ADR Committee. Another member replied that the proposed changes to Appendix F were necessary to give the parties a way to provide more complete ADR information to the court.
The Committee voted 13-2 to send alternate Appendix F as amended to the Supreme Court. Without objection, staff was instructed to make technical changes to alternate Appendix F.
CEREMONY HONORING PROFESSOR KRAFT
The Chair announced that this meeting would be the final Committee meeting for Professor Kraft. The Chair noted that Professor Kraft had served on the
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Committee for 31 years and that he was leaving the Committee because he was retiring from his post at the University of North Dakota School of Law. The Chair presented Professor Kraft with a plaque recognizing his service with the Committee from 1971 2002. Cake and refreshments were served.
Mr. Hoffman departed the meeting.
RULE 23, N.D.R.Civ.P. - CLASS ACTIONS (PAGES 87-122 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to N.D.R.Civ.P. 23.
A member urged the Committee to retain the present uniform class actions rule. The member said that the uniform rule has roots in the original federal class actions rule and courts, therefore, can draw on a wealth of cases in interpreting it. The member said that the specificity of the uniform rule, combined with the North Dakota and Iowa cases on it, gives attorneys and courts plenty to work with when seeking to interpret the rule.
The member said that the thirteen certification factors contained in the uniform rule are very helpful to those considering whether to commence a class action, especially since the federal courts do not agree on what factors constitute grounds for certification under the federal rule. The member indicated that the uniform rule gives North Dakota the best of all possible worlds.
Judge Leclerc MOVED that the Committee consider no amendments to Rule 23. Mr. McLean seconded.
A member said it is not difficult for judges to work with the uniform rule and that the rule works fine, even though North Dakota is only one of two states to have the uniform rule.
A member said it was appropriate to look at the federal rule and to discuss whether the federal rule would be more workable. The member asked if the judges on the panel thought whether the federal rule was simpler. A member stated that, in Rule 23 actions, the judges relied on the attorneys to use the correct terminology and standards in seeking certification. The member stated that the judges probably do not care whether the uniform or federal rule is used.
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A member said that the main problem judges have with the uniform rule is that the meaning of the certification factors is not necessarily clear. The member said at some point it might be necessary to look closer at the certification factors to see whether the language needs to be adjusted to make the factors more understandable. Another member said that the Supreme Court has been interpreting the factors and announcing what they mean.
The Committee voted 11-3 not to consider further changes to the rule.
A member asked if the Committee could reconsider the change to the uniform rule it passed at the September meeting. The member said that the change improperly dealt with a jurisdictional issue that was beyond the scope of the rules.
Mr. Plambeck MOVED to reconsider action of Committee ending debate on Rule 23. Mr. Kuntz seconded. The motion CARRIED 11-3.
Mr. Plambeck MOVED to rescind the Committee's September decision to add a new subdivision (t) to the rule (as shown on pages 90-95). Mr. Kuntz seconded.
A member said that, since the September amendments were approved by a 2/3 vote, the Committee should not reconsider it. Another member said that the September amendments were correctly approved and did not improperly infringe on jurisdiction. A member said that class actions would be interminable if the proposed new subdivision (t) was not upheld because all activity in class actions cases would be stalled every time a certification order was appealed.
A member said that Committee discussion on the September amendments had suggested that, after an opinion is handed down on an appeal of a certification order, the parties generally resolve the matter. The member questioned whether parties should be allowed to continue work on a matter while a certification order appeal is pending if resolution of the matter is likely once the appeal is decided.
A member said that allowing work to continue in a class action under new subdivision (t) is improper because the trial court loses jurisdiction when an appeal is filed. The member argued that, because the Supreme Court gains jurisdiction when a case is appealed, the rules of discovery no longer apply to the case, so discovery should not continue. The member said that the September amendments would allow activity beyond what is allowed under North Dakota law.
A member said that Supreme Court cases interpreting Rule 23 showed that the
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Supreme Court has concluded that Rule 23 governs all proceedings in class action cases, including appeals, so it is appropriate to have a subdivision in Rule 23 like (t) to govern discovery in class actions that are appealed.
The motion to rescind the Committee's September action creating a new subdivision (t) was DEFEATED 3-11.
RULE 34, N.D.R.App.P. - ORAL ARGUMENTS (PAGES 123-127 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to N.D.R.App.P. 34.
Judge Leclerc MOVED to adopt the proposed amendments for discussion purposes. Judge Hagerty seconded.
Ms. Bruggman said the clerk's office had no objections to the amendments.
The Chair explained that, under the current system, not every party that appeals gets an oral argument. However, the parties who do not get oral argument at present generally either waive oral argument or, by some action such as failing to file a brief, disqualify themselves from oral argument. The Chair said that, under normal circumstances and under the current rule, parties who want oral argument may have oral argument.
The Chair explained that the proposed amendments to Rule 34 would give the Supreme Court some flexibility to deny oral argument when an appeal is frivolous or repetitive. The Chair pointed out that presently attorneys are sometimes required to participate in oral argument even though there is no potentially meritorious basis for the appeal, and under the proposed rule, the Court could deny oral argument in such a case. The Chair doubted that the Court would deny oral argument in many cases.
A member said that under the proposed new language, the rule would allow the Court to deny argument any time the Court decided it was unnecessary. Another member, however, pointed out the proposed amendments allowed parties to file statements explaining why oral argument was necessary.
A member asked what situation existed in other states regarding having oral arguments in appeals. Another member answered that it was a rarity in other states for oral argument to be granted. Ms. Bruggman said Montana hears three oral
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arguments a month and South Dakota hears only a small number. A member said Nevada has no oral arguments because of the large number of cases appealed.
The Chair said North Dakota has a tradition of hearing oral arguments in most cases. The Chair stated that the proposed amendment addresses the problem of what the Supreme Court should do to address truly frivolous and repetitive appeals. The Chair stated that it can be difficult and costly for an opposing party to be brought to Court on multiple occasions to hear a dissatisfied party present the same arguments again and again.
A member said that assigning cases to the intermediate Court of Appeals was an alternative means of dealing with frivolous cases. Another member agreed that it is a real burden for criminal defense attorneys to appear for oral argument in cases where, but for a desire not to incur a complaint from their clients, they might waive oral argument.
Ms. Bruggman suggested a technical amendment to the rule, changing the proposed term "must" to "may" on page 125, line 22. She said that attorneys on occasion are not able to give a statement of the case at oral argument because they need to answer questions from Supreme Court justices.
Mr. Kapsner MOVED to change the proposed term "must" to "may" on page 125, line 22. Judge Geiger seconded. The motion CARRIED 13-1.
A member suggested that proposed language on page 125, line 29, be changed for the sake of simplification. Several members agreed that the four syllable word "duplicative" could be eliminated from the line.
Judge Hilden MOVED that the language on page 125, line 29, be simplified to read "Parties should not duplicate arguments." Mr. Kapsner seconded.
A member questioned whether the suggested word "parties" was too broad a replacement for the proposed term separate parties.
The motion to amend page 125, line 29, CARRIED 10-4.
The Committee voted 14-1 to include Rule 34 as amended in the Appellate Rules Package.
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UNIFORM MEDIATION ACT (PAGES 128-141 OF THE AGENDA MATERIAL)
Staff explained the ADR Committee was reviewing the Uniform Mediation Act and desired comment from the Committee regarding the Act.
A member said the Act seemed to involve substantive law and should be addressed by the legislature, not by the Supreme Court as a rule. Another member, however, said that North Dakota's mediation provisions currently are part of Rule 8.8, N.D.R.Ct, and that the current provisions deal with some of the same topics covered by the Act. The member said that the law of North Dakota on mediation is currently in Rule 8.8, not in a statute.
A member said that all of North Dakota's privileges at present are in rules of evidence, and that it would not make sense to have one privilege in a statute while the rest were in the rules. The member said, however, that the other privileges were expressed in a few paragraphs, while the Act's mediation privilege went on for chapters. The member said this seemed to be overkill.
A member said the mediation privilege was different from other privileges. Other privileges need to be exercised, while the mediation privilege as set forth in the Act is automatic and mandatory. The member said that this factor makes the mediation privilege substantive law. The member also said that Rule 8.8 did not cover all mediation, and that a lot of mediation was being done without reference to Rule 8.8.
The Chair reminded the Committee that Rule 8.8 had been adopted to promote mediation rather than relying solely on the parties themselves.
The Committee did not take a position on the Uniform Mediation Act. Staff was instructed to convey the Committee's comments to the ADR Committee.
RULE 2.2, N.D.R.Ct. - FACSIMILE TRANSMISSION (PAGES 142-145 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to N.D.R.Ct. 2.2.
Judge Hagerty MOVED to adopt the proposed amendments for discussion purposes. Judge Bohlman seconded.
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A member asked if the proposed change only applied to issuance of a document by a court. Another member said that the original reason for not allowing faxes to be filed as originals was that old style fax copies would fade over a short time. The member said that this is not a problem anymore with fax copies.
A member said that judges often send out warrants by fax to outlying areas and then typically file the original signed copy with the clerk of court. Another member said that, when the fax copy is used as an original, and served upon a person, the fax copy becomes the original. The member said that the proposed change makes the fax copy an original for all purposes.
A member said that a fax copy without an original signature should not be filed as an original.
Staff explained the procedure currently used by clerks of court to keep track of the originals and fax copies of warrants. Staff explained that the purpose of the proposed change was to eliminate the need for clerks of court to obtain the original for filing once a fax copy had been made and used.
A member said that the rule change could come into play when a judge signs an order in one county and faxes it to another county. Another member said the change could also apply when a judge faxes an order from home to law enforcement, as when a warrant is requested in the middle of the night. In both cases, it would be the fax copy that was used and then filed.
A member said that the change in procedure allowed by the proposed amendments and the advantages to be gained by amending the rule would be so slight that the Committee should not risk the chance of a due process violation taking place because of a failure to file a warrant with an original signature.
The Committee voted 13-1 to send Rule 2.2 as amended to the Supreme Court.
RULE 47, N.D.R.Civ.P. - JURORS (PAGES 147-158 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to N.D.R.Civ.P. 47.
Judge Geiger MOVED to adopt the proposed amendments for discussion purposes. Professor Kraft seconded.
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A member said that a reason why the rule used the term "party" instead of "side" could be because when a jury is selected under the rule, there is generally only one alternate juror selected and only one peremptory challenge to use. The member said that a side consisting of multiple parties could agree to divide up the slate of peremptory challenges available for regular jurors, but that there would be no way to divide up a single alternate juror peremptory challenge if that was all that was available to the side.
A member said that, in practice, a given number of peremptory challenges will be available and the sides will use them without distinction between primary and alternate jurors. Another member said that this was not universal practice, and that in some courts jurors are picked in one round of selection and alternates in a second round, with a different amount of peremptory challenges available in each round.
The Committee voted 11-3 to send Rule 47 as amended to the Supreme Court.
RULE 13, N.D. Sup. Ct. Admin. R. - JUDICIAL REFEREES (PAGES 159-163 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to N.D. Sup Ct. Admin. R. 13.
Judge Bohlman MOVED to adopt the proposed amendments for discussion purposes. Ms. Moore seconded.
A member asked whether N.D.R.Civ.P. 5 or the Rules of Civil Procedure in general were applicable to juvenile court. Another member said that the proposed amendment did not make the Rules of Civil Procedure applicable to juvenile court, but instead merely pointed to a service procedure to be followed when juvenile court orders were issued.
A member said that juvenile proceedings were of a civil nature so the Rules of Civil Procedure apply to juvenile proceedings. Another member said that there were some juvenile court actions to which the civil rules could not be applied because the designated juvenile court procedure conflicted with the civil rules. The member asked whether requiring juvenile court personnel to serve orders in accordance with N.D.R.Civ.P. 5 would be at odds with any juvenile court procedure.
A member suggested that the requirement for service under N.D.R.Civ.P. 5
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be removed and that the language of the amendment instead simply require that juvenile court orders be served. Another member said that removal of the N.D.R.Civ.P. 5 service specification would create questions as to what amounted to proper service of a juvenile court order. The member said that N.D.R.Civ.P. 4's service requirements, which are more extensive than N.D.R.Civ.P. 5's, might then become the default standard.
A member suggested that having N.D.R.Civ.P. 4 as the standard for service of juvenile court orders would be acceptable. Another member said that having N.D.R.Civ.P. 4 apply to service of orders would be inappropriate since orders are issued as part of an action that has already been commenced. A member said N.D.R.Civ.P. 4 should not apply because juvenile courts should not be required to serve orders in an ongoing action on parties who never answered or otherwise became involved in the action.
Without objection, language on page 160, line 5, was struck from the rule.
A member asked whether there had been some problem that prompted the suggestion that the rule be amended. No member knew of a specific problem.
The Committee voted unanimously to send Rule 13 as amended to the Supreme Court.
RULE 35, N.D.R.App.P. - SCOPE OF REVIEW (PAGES 164-169 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to N.D.R.App.P. 35.
Judge Simonson MOVED to adopt the proposed amendments for discussion purposes. Judge Hilden seconded.
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A member asked where the proposed one-year requirement for hearing remanded cases came from. Staff explained it was a statutory requirement and that it was inserted as an amendment to the rule because it seemed to be a procedural, rather than substantive, requirement. A member suggested the Committee declare the statute to be superseded, rather than including the statute's requirements in the rule.
Mr. Kapsner MOVED to eliminate subdivision (c) at lines 52-59 of the alternate draft. Judge Leclerc seconded.
A member asked whether eliminating the one-year requirement could lead to long delays in action on remanded matters. Another member said that docket currency requirements would prevent a long delay.
The motion to eliminate subdivision (c) CARRIED unanimously.
The Committee voted unanimously to include Rule 35 as amended in the Appellate Rules Package.
RULE 36, N.D.R.App.P. - ENTRY OF JUDGMENT (PAGES 170-173 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to N.D.R.App.P. 36.
Judge Leclerc MOVED to adopt the proposed amendments for discussion purposes. Judge Simonson seconded.
A member asked whether removing language at page 171, lines 9-10, regarding settlement would prevent parties from voluntarily dismissing a case after the Supreme Court had delivered its mandate. A member said that the provision was derived from a federal rule that allows parties, after an appellate court decision, to settle and amend the judgment by essentially abolishing the judgment. The member stated that the rule allows parties to pay off opposing parties when they desire to avoid having an opinion published. The member said that such settlement activity is undesirable and that language allowing such activity in North Dakota should be removed from the rule.
Mr. Kapsner MOVED to remove settlement language at page 171, lines 9-10. Mr. Kuntz seconded.
The motion to eliminate settlement language CARRIED unanimously.
The Committee voted unanimously to include Rule 36 as amended in the Appellate Rules Package.
The meeting recessed at approximately 4:00 p.m.
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April 26, 2002 - Friday
The meeting was called to order at approximately 9:00 a.m., on April 26, 2002, by Justice Dale V. Sandstrom, Chair.
Mr. Hoffman rejoined the meeting. Professor Kraft was absent.
RULE 36, N.D.R.App.P. - ENTRY OF JUDGMENT (PAGES 170-173 OF THE AGENDA MATERIAL)
Discussion of N.D.R.App.P. 36 continued after a member suggested that, because the Committee had amended a federal provision out of the rule, the explanatory note should be changed.
A member asked why the Committee was amending North Dakota rules to reflect federal rule changes when the federal rules do not necessarily conform to North Dakota practice. The member pointed to the amendment made to proposed language of Rule 36 by the Committee as an example of the differing nature of North Dakota and federal practice.
The Chair reminded the member that the Committee was required by its own implementing rule to review every procedural rule on a periodic basis. The Chair said that review and amendment of the appellate rules was part of this process, and that the Committee had been guided by federal amendments in making its own amendments to North Dakotas rules for many years.
By unanimous consent, a technical change was approved to the language of Rule 36's explanatory note.
RULE 37, N.D.R.App.P. - INTEREST ON JUDGMENT (PAGES 174-176 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to N.D.R.App.P. 37.
Mr. Kuntz MOVED to adopt the proposed amendments for discussion purposes. Judge Leclerc seconded.
A member said that the Supreme Court did not generally make instructions
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regarding interest, but instead sent matters back to the district court for interest decisions. The Chair said that the members of the Court did not generally review the actual judgment to insert interest instructions. Ms. Bruggman said that interest instructions are not placed in the judgment. Instead, the judgment and the opinion together constitute the mandate, and if interest is an issue, any instructions related to interest are found in the opinion.
A member said that interest runs by statute and continues to run when a matter goes to the Supreme Court. Therefore, the member said the Court generally should not have any decisions to make about interest. Another member said the rule applied in situations where a Court decision resulted in a party receiving a money judgment where the party previously had no money judgment. In such a case, the member said, it would be appropriate for the Court to give instructions regarding interest.
A member said that even if a Supreme Court decision resulted in a new money judgment, a decision to give interest would not be discretionary. Another member responded awarding prejudgment interest was always discretionary. A member said that the rule would apply if the Supreme Court entered a money judgment with instructions to the district court regarding interest.
Another member pointed out that there are interest statutes other than the well- understood ones applying to pre- and post-judgment interest. Further, the Supreme Court can enter a judgment that alters the amount awarded to a party, and such a decision would affect interest and/or the time from which interest is calculated. Another member said in such a case, the matter would go back to the district court for entry, where the district court would have to determine interest.
A member said that giving the Supreme Court discretion under the rule to provide interest instructions would be the appropriate response to the various interest scenarios raised by the Committees members.
Mr. Kuntz MOVED to amend the rule to replace the term "must" on page 175, line 9, with the term "may." Mr. Kapsner seconded.
A member said that, if the rule required the Supreme Court or the clerk to make an instruction on interest in every instance, the clerk might be required to act extra-judicially in order to fulfill the requirements of the rule. Ms. Bruggman stated that she had never placed an interest instruction in a judgment, and if the rule required such an instruction to be made in all cases, the Court would have to begin adding such instructions to its opinions, because the clerk's staff would not be able
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to provide such instructions on its own.
A member asked why the section of the rule relating to interest instructions was necessary if providing such instructions was discretionary with the Supreme Court. Another member said that the section was likely included as part of the equivalent federal rule because the federal rule applies to the Courts of Appeal, which are intermediate courts and are required to make interest instructions as part of their normal work. The member said this was an example of improperly trying to make a rule for an intermediate court of appeal work for North Dakota's own court of last resort.
A member said that interest instructions were needed more often in the federal courts because the federal interest rate was not fixed but varied according to treasury bill rates. The member said, therefore, that the provision at issue could be unnecessary in North Dakota because judgment interest rates were fixed by statute.
The motion to change language on page 175, line 9, CARRIED unanimously.
A member asked whether there would now be an assumption that no interest would be awarded in cases where the Supreme Court exercises its discretion and declines to give interest instructions. The Chair said that, since the language of the amendment gave the Court discretion to instruct either way on interest, the Court's decision not to give interest instructions in a given case would not imply that no interest was to be awarded.
The member expressed concern that a district court would not interpret the language the same way and would disallow interest in cases where the Court gave no interest instructions. Another member said that the district court has no discretion on post-judgment interest, since such interest accrues from a set date at a rate set by statute. A member expressed concern that any award of prejudgment interest would then be barred in the absence of instructions.
The Chair reminded the Committee that the interest rule had been around for a long time, and that the language approved by the Committee appeared to give the Supreme Court the option of addressing interest questions if it so desired. In cases where the Court did not address interest, the interest question would remain open.
The Committee voted unanimously to include Rule 37 as amended in the Appellate Rules Package.
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Staff provided an overview of the proposed amendments to N.D.R.App.P. 38.
Judge Leclerc MOVED to adopt the proposed amendments for discussion purposes. Judge Geiger seconded.
A member said that the language of the rule seemed to imply that a motion to dismiss an appeal based on a party's failure to file a brief would always lose. The member said the rule did not appear to give the Supreme Court the power to do anything but award damages and costs to a party who was dilatory in prosecuting an appeal.
The Chair said that the Court regularly dismisses when the appellant fails to file a brief. The Court is not required to dismiss when the appellee fails to file a brief, however, especially when the appellant's brief fails to provide grounds for reversal.
The Committee voted unanimously to include Rule 38 as amended in the Appellate Rules Package.
RULE 39, N.D.R.App.P. - COSTS (PAGES 183-189 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to N.D.R.App.P. 39.
Mr. Kuntz MOVED to adopt the proposed amendments for discussion purposes. Ms. Moore seconded.
A member said that the presumed cost of briefs included in the rule at paragraph (e)(4) is insultingly low, and that it does not begin to even cover copying costs. Another member said it costs more in attorney's fees to request appellate costs than can be obtained under the rule.
A member asked why paragraph (e)(2) of the rule was needed when transcripts are part of the record. The Chair explained that, if the appellant prevails, the
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appellant receives the actual costs charged by the court reporter. Ms. Bruggman explained that preparation of the record is a separate item that parties are required to pay in cases such as administrative appeals.
Ms. Bruggman explained that, by definition, the record consists of all pleadings and exhibits filed along with three copies of the transcript. Ms. Bruggman said the section of the rule specifically allowing the appellant to recover transcript costs was necessary because the appellant bears responsibility for the costs of preparing the transcript in civil cases. Several Committee members agreed that the separate section explaining that transcript costs are recoverable should be retained.
A member suggested that paragraph (e)(4), which allows recovery of presumed costs for briefs, should be eliminated. Another member suggested the presumed amount for briefs should be raised. A member said that such a change would lead to expensive hearings on whether the presumed amount was valid in a given case.
A member said allowing costs for appellate brief preparation was inconsistent because the parties are not allowed to recover costs for district court briefs. A member said that the Committee would never be able to set a realistic presumed cost for preparing briefs and that it would be best simply to eliminate this item from the rule.
A member said that the provision allowing recovery of brief costs likely dated back to the period in time when parties needed to use a commercial printing house to duplicate briefs. If a party had a brief commercially printed, the member said, the party would be able to submit a bill to show actual reproduction costs if it was more than the presumed cost.
Judge Simonson MOVED to delete the presumed dollar amount from paragraph (e)(4) at lines 33-34 of the alternate draft. The motion failed for lack of a second.
Mr. McLean MOVED to completely eliminate paragraph (e)(4) at lines 33-34 of the alternate draft. Judge Leclerc seconded.
A member asked whether brief costs were regularly requested and granted. Ms. Bruggman said the Supreme Court had as many unclaimed cost bonds as claimed. Ms. Bruggman said she had seen district courts award actual costs for appendices.
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A member said that if the appellant wins, they generally claim brief costs because they have to file for transcript and record costs anyway. The member said if the appellee wins, they are less likely to file for costs because $75 is generally the maximum amount recoverable. A member said there is some paperwork involved in filing for costs and it might not always be worth the time and effort to prepare and submit the required paperwork.
A member asked whether requiring brief costs to be paid could deter frivolous filing of appeals. None of the Committees members offered an opinion on whether there was a deterrent effect.
A member asked whether law firms bill their clients for the costs of reproducing briefs. A member said that law firms generally bill their clients for copying costs. Another member said some law firms do not charge copying costs unless hundreds of copies are made.
The motion to amend to eliminate paragraph (e)(4) at lines 33-34 of the alternate draft CARRIED 13-1.
Judge Geiger MOVED to strike the word "reporter" on line 30 of the alternate draft. Mr. Kapsner seconded. The motion CARRIED 11-3.
Mr. Plambeck MOVED to delete language referring to party agreements on lines 12-13 of the alternate draft. Mr. Kapsner seconded.
Ms. Bruggman said that the rule's reference to party agreements on costs when an appeal is dismissed is appropriate because appeals may be dismissed by order, rule, or by agreement of the parties. Ms. Bruggman said that, in the case of a voluntary dismissal, sometimes parties agree to share costs.
The motion was DEFEATED 3-11.
Ms. Moore MOVED to remove language at lines 55-57 of the alternate draft referring to brief costs. Mr. Kapsner seconded. The motion CARRIED 13-1.
Mr. Hoffman MOVED to add language at lines 12-17 of the alternate draft. The motion failed for lack of a second.
The Committee voted unanimously to include Rule 39 as amended in the Appellate Rules Package.
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RULE 40, N.D.R.App.P. - PETITION FOR REHEARING (PAGES 190-194 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to N.D.R.App.P. 40.
Judge Simonson MOVED to adopt the proposed amendments for discussion purposes. Judge Geiger seconded.
Ms. Bruggman explained that a word limit on petitions for rehearing was added to the rule so that it would conform with the rest of the appellate rules.
The Committee voted unanimously to include Rule 40 as amended in the Appellate Rules Package.
Staff provided an overview of the proposed amendments to N.D.R.App.P. 41.
Judge Leclerc MOVED to adopt the proposed amendments for discussion purposes. Ms. Moore seconded.
Ms. Bruggman explained that the Supreme Court no longer used a printed mandate form and therefore no longer issued formal mandates. Instead, the opinion and judgment together constitute the mandate. The clerk holds the opinion and judgment for 14 days pending a petition for rehearing, and if no petition for rehearing is filed, the clerk sends the matter back to the district court.
Ms. Bruggman said there is no separate document called the mandate. Instead, the opinion and judgment are stamped and certified and this constitutes the mandate. Jurisdiction is generally returned to the district court 21 days after judgment is entered, although in some cases (such as mental health or original jurisdiction matters) the mandate will issue sooner.
Language on page 196, lines 8-9, referring to "formal mandate" was deleted without objection.
The Committee voted unanimously to include Rule 41 as amended in the
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Appellate Rules Package.
RULE 42, N.D.R.App.P. - DISMISSAL (PAGES 200-203 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to N.D.R.App.P. 42.
Judge Hagerty MOVED to adopt the proposed amendments for discussion purposes. Judge Geiger seconded.
The Committee voted unanimously to include Rule 42 as amended in the Appellate Rules Package.
RULE 43, N.D.R.App.P. - SUBSTITUTION OF PARTIES (PAGES 204-208 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to N.D.R.App.P. 43.
Judge Leclerc MOVED to adopt the proposed amendments for discussion purposes. Judge Simonson seconded.
A member said that the rule was very strange. Under paragraph(a)(3), if someone dies and there is no personal representative, the decedent's attorney can decide whether to appeal. This means, the member said, that the attorney is essentially required to appeal to avoid malpractice. The attorney then must proceed without having anyone to consult until a personal representative is appointed.
A member asked whether the attorney/client relationship survives the death of a client. A member answered that it clearly does. Another member said that the rule makes sense because it specifies what steps a lawyer can take when a client has died and an appeal deadline is approaching. Nonetheless, another member said, the rule will generally compel an attorney to file an appeal.
The Committee voted unanimously to include Rule 43 as amended in the Appellate Rules Package.
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RULE 45, N.D.R.App.P. - DUTIES OF CLERK (PAGES 209-214 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to N.D.R.App.P. 45.
Judge Hagerty MOVED to adopt the proposed amendments for discussion purposes. Ms. Moore seconded.
The Committee voted unanimously to include Rule 45 as amended in the Appellate Rules Package.
Staff provided an overview of the proposed amendments to N.D.R.App.P. 47.
Judge Hagerty MOVED to adopt the proposed amendments for discussion purposes. Judge Geiger seconded.
The Committee voted unanimously to include Rule 47 as amended in the Appellate Rules Package.
Staff provided an overview of the proposed amendments to N.D.R.App.P. 47.1.
Judge Simonson MOVED to adopt the proposed amendments for discussion purposes. Judge Hilden seconded.
A member questioned language on page 223, line 16, regarding proposed "findings of fact." The member said that what should be required is a "statement of fact" relevant to the certified legal question, not findings of fact. The member said that a court could not proceed to make findings of fact if there was an unsettled question of law that was holding up resolution of the proceedings.
The member stated that certified questions are generally submitted with a
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factual statement that contains sufficient information for the Supreme Court to use to determine the legal question being submitted. The member stated that the facts would often still be dispute at the point in the proceedings when a certified question would be submitted.
A member asked how a certified question of law could be submitted if facts were in dispute. A member answered that parties may present different versions of the facts to the district court, and that it is the district court's role to frame the question of law and provide the Supreme Court with enough facts to settle the question of law. The member said it was not appropriate for the district court to make a finding on the facts prior to the Supreme Court's decision on the certified legal question.
The Chair said that the Supreme Court would not issue an opinion on a certified question of law from a state court unless the opinion would be dispositive of the matter. The Chair asked how the Court could issue a dispositive opinion when facts remained in dispute in a case.
A member said that many situations existed in which a legal determination would resolve a situation even when the parties did not agree on the facts. Another member suggested that the word "stipulation" could be substituted for the word finding because the facts relevant to the legal question in dispute must be agreed upon by the parties before a district court can submit a certified question of law.
Mr. Kapsner MOVED to change the word "finding" to "statement" on pages 223-224, lines 16 and 27. Mr. McLean seconded.
A member asked whether there were cases where certified questions of law were submitted even though the parties refused to stipulate to a statement of facts. Another member said that there was always a stipulation to relevant facts when a certified question of law was submitted. A member stated that parties seeking an answer to a certified question of law were in a position analogous to a criminal defendant submitting a conditional guilty plea.
The motion to change language on pages 223-224, lines 16 and 27, CARRIED 10-4.
A member said it would be useful to practitioners and judges if there was language in the explanatory note alerting them to the fact that the Supreme Court generally expects the parties to stipulate to relevant facts before submitting a certified
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question of law.
Judge Hagerty MOVED to add language on page 226 following line 76 to indicate that generally the facts will be stipulated to by the parties. Judge Simonson seconded.
A member asked whether, under the rule and under North Dakota law, there must be no dispute of material facts in a matter certified to the Supreme Court. Another member answered that the language of the rule and the explanatory note left open the possibility that a question of law could be certified in a case where there was some dispute as to the facts remaining.
A member asked whether the rule, as amended to incorporate North Dakota's certification statutes, restricted the rights of criminal defendants in any way. Staff explained that the rule allowed any party in a criminal matter to seek certification, while the statute had required the state and defendant to agree on whether to seek certification.
The motion to add language on page 226 following line 76 CARRIED 13-1.
Judge Hilden MOVED to delete redundant language on page 226, lines 78-79. Judge Bohlman seconded. The motion CARRIED unanimously.
The Committee voted unanimously to include Rule 47.1, as amended, in the Appellate Rules Package.
Staff provided an overview of the proposed amendments to N.D.R.App.P. 49.
Judge Geiger MOVED to adopt the proposed amendments for discussion purposes. Mr. McLean seconded.
Mr. Kapsner MOVED to delete language on page 237, lines 4-5, regarding the 1973 effective date of the appellate rules. Judge Leclerc seconded. The motion CARRIED 11-3.
Judge Simonson MOVED to remove the term "effective date" from page 237,
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lines 3-4. Judge Hilden seconded. The motion CARRIED unanimously. After a brief discussion, and without objection, the language was reinserted.
Mr. Kapsner MOVED to add historical language to the explanatory note regarding the 1973 effective date of the appellate rules. Judge Bohlman seconded. The motion CARRIED unanimously.
The Committee voted unanimously to include Rule 49, as amended, in the Appellate Rules Package.
APPELLATE RULES PACKAGE
The Chair announced that the Committee had now reviewed all the Rules of Appellate Procedure. Judge Leclerc MOVED to send the Appellate Rules Package to the Supreme Court. Mr. McLean seconded. The motion CARRIED unanimously.
FOR THE GOOD OF THE ORDER
A member said that the new standards on jury selection included a change related to voir dire. Unless attorneys waive, all voir dire will be transcribed. No waiver is possible in felony cases, and criminal defense attorneys do not dare waive transcription in any case, the member said.
A member said that civil attorneys would be able to forgo having a transcript of voir dire made if jury selection was not an issue on appeal. A member said, however, that individual voir dire might be necessary in order to get everything properly on the record, which would lengthen voir dire considerably, perhaps by days.
Another member said that there were advantages to having voir dire on the record. The member said having voir dire recorded controls attorney conduct to some extent because any misconduct in questioning or making statements to the jury panel is on the record.
A member said that he used a recorder instead of a reporter to record voir dire in the courtroom. The member said that an extra microphone was obtained for the jurors to pass around while answering the questions. The lawyers were also instructed that it was their responsibility to make sure the record was clear and that
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the juror's answers, as well as the identity of the person answering, were recorded.
A member said that, in a recent criminal case, the issue before the Supreme Court involved jury selection. Unfortunately, there was no transcript or recording of the jury selection and no statement of agreement between the parties that voir dire recording would be waived. The Supreme Court affirmed the conviction, but the member said the result should have been different no waiver of voir dire recording existed in the case.
A member said that the Committee may wish to consider and study what is necessary to be included in the record on appeal and whether voir dire (now being recorded) always must be transcribed and made part of the record. Staff was instructed to research the background of the new jury selection standards and the recording requirement.
A member stated that a voir dire recording requirement was essential in criminal cases because these cases are often transferred to new attorneys on appeal and the new attorney will generally have no idea what went on in voir dire or whether any errors were made.
A member said that if voir dire is going to be recorded, the recording of opening statements should also be required. Another member replied that courts in the members district already always record opening statements.
A member said that the Committee might consider examining Supreme Court rules regarding supervisory writs and extraordinary writs. The member said these writs are currently governed by statutes that are not particularly clear. Question is whether the statutes on the writs are procedural or substantive.
The meeting adjourned at approximately 10:45 a.m.
Michael J. Hagburg
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