MINUTES OF MEETING
Joint Procedure Committee
April 27-28, 2006
TABLE OF CONTENTS
Indigent Counsel Rule Changes 2
Rule 6, N.D.R.Civ.P., Time; Rule 45, N.D.R.Crim.P., Computing and Extending Time 6
Rule 3.2, N.D.R.Ct., Motions 7
Rule 8.4, N.D.R.Ct., Summons in Action for Divorce or Separation 9
Rule 10.2, N.D.R.Ct., Small Claims Court 10
Rule 4, N.D.R.Civ.P., Persons Subject to Jurisdiction -- Process -- Service 11
Rule 38, N.D.R.Civ.P., Jury Trial of Right 14
Rule 45, N.D.R.Civ.P., Subpoena 14
Indigent Counsel Rule Changes 15
Rule 3.2, N.D.R.Ct., Motions 17
Rule 704, N.D.R.Ev., Opinion on Ultimate Issue 19
Rule 6.12, N.D.R.Ct., Safe Courtroom Firearms Handling 20
Rule 52, N.D. Sup. Ct. Admin. R., Interactive Television 22
CALL TO ORDER
The meeting was called to order at 1:00 p.m., on April 27, 2006, by the Chair, Justice Dale Sandstrom.
Justice Dale V. Sandstrom, Chair
Honorable Donovan Foughty
Honorable M. Richard Geiger
Honorable Gail Hagerty
Honorable Debbie Kleven
Honorable David W. Nelson
Honorable Allan L. Schmalenberger
Honorable Thomas J. Schneider
Honorable Mikal Simonson
Honorable Michael G. Sturdevant
Mr. John C. Kapsner
Ms. Jeanne L. McLean
Mr. Ronald H. McLean
Ms. Sherry Mills Moore
Mr. Steven W. Plambeck
Honorable Georgia Dawson
Mr. Daniel S. Kuntz
Mr. Galen J. Mack
Mr. Bruce D. Quick
Ms. Cathy Howe Schmitz
The Chair discussed the schedule for the meeting and reviewed the schedule for future meetings.
The Chair informed the Committee that the Supreme Court had adopted term limits for members of all committees. Staff explained how the term limits would affect current members of the Committee.
On another topic, a member observed that the experimental distribution of meeting material by e-mail been beset by technical problems.
APPROVAL OF MINUTES
Judge Kleven MOVED to approve the minutes. Judge Hagerty seconded. Motion CARRIED unanimously.
INDIGENT COUNSEL RULE CHANGES (PAGES 19-50 OF THE AGENDA MATERIAL)
Staff reviewed the changes the Committee approved for N.D.R.Crim.P. 44 at the January 2006 meeting. Staff explained that several other criminal rules referenced appointment of counsel for indigents and that elimination of these references would be consistent with the changes the Committee had recommended for N.D.R.Crim.P. 44.
A member indicated that N.D.C.C. § 12.1-04.1-02 gave courts responsibility to approve expenditures for mental health examinations in criminal cases. The member said the courts would still have an obligation to consider such applications for assistance even if the portion of the rule referring to ex parte applications for assistance was deleted.
The member said that the cost of such examinations apparently falls on the counties. The member learned about the statute because a defendant had gone to the Commission on Legal Counsel for Indigents and had a mental examination request turned down. The defendant then made an application for assistance to the court.
The Committee reviewed N.D.C.C. § 12.1-04.1-02. A member said that if the ex parte assistance provision was removed from the rule, the rule could be in conflict with the statute. The Committee discussed possible amendments to the ex parte assistance provision to incorporate requests under the statute.
A member asked if the financing source for mental examinations was specified in the statute. A member responded that the statute said only that such examinations would be paid with public funds. A member commented that the mental health statutes indicated that mental health funding in general was a county responsibility. A member responded that the statute in question was a criminal statute, not a mental health statute.
A member commented that the general idea behind establishing the Commission was to put all decisions on defense services and expenditures in the hands of the Commission. The member said that N.D.C.C. § 12.1-04.1-02 put the court in the position of determining what someone could do for their defense.
A member said the statute seemed to be an anomaly that needed to be corrected during the next legislative session. A member indicated that the Committee could point out the oversight and propose legislative action on the statute. A member said that, for now, some action needed to be taken on the rule to address the statute.
The Chair suggested that staff draft an amendment to the rule to address the statute and to work on preparing a letter regarding repeal of the statute to the legislative council.
The Committee discussed proposed changes to N.D.R.Crim.P. 5. Ms. Moore MOVED to approve the proposed changes. Judge Sturdevant seconded. The motion CARRIED unanimously.
The Committee discussed proposed changes to N.D.R.Crim.P. 11. Judge Schneider MOVED to approve the proposed changes. Judge Kleven seconded. The motion CARRIED
The Committee discussed proposed changes to N.D.R.Crim.P. 17. Staff explained that a subdivision of the rule allowing applications for subpoena assistance seemed to require discussion now that the Commission on Legal Counsel for Indigents was responsible for the defense of indigents. Judge Simonson MOVED to approve the proposed changes. Judge Schneider seconded.
A member commented that, if the court provided subpoena assistance to defendants who do not qualify for court appointed counsel, this assistance would have to be paid for out of the court budget. The member said that if the court system has determined that a person does not qualify as an indigent, still allowing them to apply for subpoena assistance would be a waste of time.
A member commented that a recent Supreme Court decision said that persons who are not indigent may still qualify to have a transcript provided. The member said allowing persons subpoena assistance was analogous to allowing transcript assistance. A member said that indigent persons sometimes do not qualify to have an attorney provided because someone else is paying their legal fees. The member said allowing subpoena assistance to such persons might be appropriate.
A member asked whether the provision would apply to subpoenas for documents. The member said that in cases involving medical issues, obtaining medical records under subpoena from health facilities can be costly.
A member said that, even though the federal courts have had public defenders for some time, they have not changed their rule allowing subpoena assistance.
A member asked how often the provision was used. The member said that even pro se defendants rarely approached the issue.
A member said the current language of the rule was preferable to the proposed amendment. A member responded that the problem with the existing rule was in situations where the Commission declines to give a defendant subpoena assistancethe defendant can then go to the court and apply for assistance. This places the court in a position where it would have to second guess a Commission decision. The member said the court should not get involved in deciding what services indigent defendants should be given.
A member said for cost savings, the state will sometimes waive jail. In such a case, the defendant would not qualify for counsel even if the defendant is indigent. The member
said that the proposed amendment to the current language would prevent such a defendant from being able to apply for subpoena assistance.
Judge Hagerty MOVED to delete subdivision (b) on subpoena assistance. Judge Simonson seconded.
A member asked, if the provision was deleted, how this would affect defendants in cases where the state waives jail. A member responded that the defendant would have to work it out with the Commission because the only funds available for subpoena assistance would be with the Commission. A member commented that, if a defendant has no right to an attorney when the state waives jail, there may be no right to have other expenses paid in that situation.
A member asked whether the statute establishing the Commission required the Commission to cover expenses of pro se indigent defendants. Staff reported that N.D.C.C. § 54-61-01 said that "[t]he Commission shall provide indigent defense services for those individuals determined by the court to be eligible for and in need of those services."
A member said that practice on appointing attorneys when the state waives jail varies by county. A member said that in municipal court or smaller counties, jail is often waived for the sake of saving money.
The motion to delete subdivision (b) CARRIED 11-2.
Without objection, the Committee decided to retain the (b) lettering and indicating in the text that the subdivision was deleted.
Judge Hagerty MOVED to amend the explanatory note to reflect the deletion of the subdivision (b) text. Judge Simonson seconded. The motion CARRIED unanimously.
The motion to approve the amendments to Rule 17 CARRIED unanimously.
The Committee discussed proposed changes to N.D.R.Crim.P. 17.1. Judge Sturdevant MOVED to approve the proposed changes. Judge Schmalenberger seconded. The motion CARRIED unanimously.
Judge Geiger MOVED that the package of indigent defense related rule amendments be sent immediately to the Supreme Court upon the Committee's completion of work on the amendments. Ms. McLean seconded. The motion CARRIED unanimously.
RULE 6, N.D.R.Civ.P. - TIME; RULE 45, N.D.R.Crim.P., COMPUTING AND EXTENDING TIME (PAGES 51-78 OF THE AGENDA MATERIAL)
Staff explained that Committee member Dan Kuntz had recommended that the Committee take another look at the changes it approved for N.D.R.Civ.P. 6 and N.D.R.Crim.P. 45 at the January 2006 meeting.
The Committee reviewed the language it had approved, the language of the federal amendments, and the federal "first draft" language regarding how the extra three days after mailing a document are counted.
Judge Hagerty MOVED to amend the Rule 6 and Rule 45 proposals to incorporate the
federal "first draft" language: "three days are added
the prescribed period would
otherwise expire under subdivision (a)." Ms. Moore seconded.
A member said that using different language than the federal rule might be confusing. The member wondered which language would be more liberal: using "to" as in the current rule or using "after" as in the federal rule. A member responded that the result should be the same regardless of which word was used, but that use of "after" and the additional federal "first draft" language is clearer.
A member said that, under a strict interpretation, the use of "to" would lead to more restrictive counting if adding the extra days "to" a period makes the period longer than 10 dayswith a period longer than 10 days, holidays and weekends must be counted. A member said that using "after" is preferable because it is clear that holidays and weekends be excluded from the count.
A member asked whether rule language requiring a motion and request for hearing to be filed at least 18 days before the hearing date would need to be changed. Staff said that the minutes of the Committee's previous meetings suggested that the 18 day period was calculated by excluding holidays and weekends from the count, which would be consistent with the amendment the Committee was considering.
The motion CARRIED unanimously.
The Committee discussed what policy should guide the spelling out of numbers in rule text.
Judge Hagerty MOVED to adopt a policy that numbers from one to ten be spelled out and numerals be used for numbers greater than ten. Judge Simonson seconded. The motion
RULE 3.2, N.D.R.Ct. - MOTIONS (PAGES 79-102 OF THE AGENDA MATERIAL)
Staff reviewed the action the Committee had taken on N.D.R.Ct. 3.2 at the January 2006 meeting. Staff explained that the Committee had decided to defer consideration of proposed amendments to the rule regarding hearings and affidavits. Staff also informed the Committee that some additional amendments to the rule had been proposed in the interim since the January 2006 meeting.
Judge Sturdevant MOVED to approve the proposed changes to Rule 3.2. Judge Kleven seconded.
Staff explained that form and style changes had been proposed for subdivision (a). The Committee expressed no objections to this proposed change.
Staff explained that a revised subdivision (b), focusing on hearings, was proposed for the rule.
A member said that proposed language suggested that attorneys could set a telephone or electronic hearing with getting prior permission from the court for using electronic means. The member said that attorneys should be required to get permission for telephonic or electronic hearings.
Judge Hagerty MOVED to add the language "If permitted by the court" prior to the proposed language allowing electronic hearings. Judge Kleven seconded. The motion CARRIED unanimously.
Staff explained that language had been proposed for subdivision (b) to restrict courts from issuing standing orders requiring hearings on certain types of motions. Staff explained that the change was in response to a standing order issued by the East Central Judicial District.
The Chair discussed the status of the standing order and asked whether the East Central Judicial District had taken any steps to promulgate the standing order as a local rule in compliance with the Rule on Local Court Rules. No member indicated any knowledge of an ongoing effort to promulgate the standing order as a local rule.
Judge Hagerty MOVED to delete a paragraph from the explanatory note: "The language of subdivision (a) does not prevent a court from adopting a local rule requiring that
every motion be noticed for oral argument, if due allowance is made for a telephonic hearing." Ms. Moore seconded.
A member said the Committee should not encourage adoption of local rules inconsistent with statewide court rules. The member also said that courts should not have to make "due allowance" for hearings by electronic means. A member commented that it would be inconsistent to retain the paragraph if the rule is changed to require review of party submissions before the court can require oral argument.
The motion CARRIED 11-4.
Staff explained that proposed paragraph (b)(2) contained language proposed by Williston attorney Valeska Hermanson that would require affiants to be available for cross-examination at evidentiary hearings in domestic relations cases.
A member said that it was not a good idea to put a provision into Rule 3.2 that related only to one type of case. The member said the provision might be worthwhile but that it belonged somewhere else, perhaps as a free-standing rule.
A member said that a requirement for parties to produce affiants at evidentiary hearings was impractical. The member said that a party may be able to obtain an affidavit from a witness, but may not have the ability to control the witness or produce the witness for a hearing. The member said that if a person wants to challenge an affidavit, that person can subpoena the witness or take a deposition.
A member replied that the time lines on domestic matters are generally so tight that the burden for producing a witness for cross examination should be on the party who relies on the witness. A member commented that this provision would likely apply to modification hearings and time lines would not be a problem.
A member said that the proposal arose out of situations where lawyers were being assailed with affidavits in non-divorce matters, such as custody cases involving out-of-wedlock children. The member said that the lawyers in low-budget custody cases do not have the resources or time to do subpoenas and depositions in order to cross-examine witnesses. The member said if the proposal was adopted, people would be more selective in providing affidavits.
A member commented that parties were already required to produce affiants for cross-examination in interim order proceedings and that the proposal would extend this required to related domestic matters. The member said the proposal should be shifted to a different
part of the rules or incorporated into N.D.R.Ct. 8.2.
A member said that making special rules for domestic relations cases was bad policy. The member said that the affidavit requirement had been included in Rule 8.2 because there is no time in an interim order proceeding to depose or subpoena affiants.
A member said that in some cases there can be 50 affidavits submitted on an issue, but most are of such limited importance that it would be a waste to bring in the affiant to stand outside the courtroom. The member agreed that on other occasions, it is very important that the affiant be made available for cross-examination.
Mr. Plambeck MOVED to delete the proposed language on making affiants available for hearings. Judge Simonson seconded. The motion CARRIED 12-2.
Without objection, the subdivision was renumbered to reflect the deletion of the proposed paragraph.
Staff explained that a change had been proposed to add language making it clear that Rule 3.2 applies to formal proceedings under the Uniform Probate Code. Staff explained that the proposed language had been added to subdivision (f).
The motion to approve the proposed changes to Rule 3.2 CARRIED unanimously.
Staff was instructed to insert the rejected language regarding production of affiants for cross examination in a separate draft rule for consideration by the Committee during the April 28 portion of the meeting.
A member suggested that the language limiting the affiant production requirement to domestic relations cases be removed from the proposed separate draft. A member asked whether there were other types of cases in which evidentiary hearings were held on affidavits. A member responded that it could happen when a temporary restraining order is requested.
RULE 8.4, N.D.R.Ct. - SUMMONS IN ACTION FOR DIVORCE OR SEPARATION (PAGES 103-107 OF THE AGENDA MATERIAL)
Staff explained that the Committee had decided at the January 2006 meeting to defer action on amendments proposed by attorney Valeska Hermanson, pending comment from the bar. Staff reported that only one comment had been received and that it supported the proposed amendments.
Judge Nelson MOVED to approve the proposed amendment. Judge Kleven seconded.
A member said that the proposed amendment seems acceptable.
Ms. Moore MOVED that the term "a party" be substituted for "either spouse" on line 29 and that the term "party" be substituted for "spouse" on line 30. Ms. McLean seconded. The motion CARRIED unanimously.
Mr. Kapsner MOVED to move the phrase "except for temporary periods" to the beginning of the sentences at lines 17 and 27. Ms. Moore seconded. The motion CARRIED unanimously.
A member asked whether the phrase "temporary periods" was so amorphous that it caused problems between parties. A member responded that a Supreme Court case had dealt with the topic and that there was little confusion about the interpretation of the phrase.
A member asked whether "spouse" should be changed to "party" throughout the rule. A member responded that the first part of the rule, where the term "spouse" was used, applied only to cases involving married parties.
The motion to approve the amendments to Rule 8.4 CARRIED unanimously.
RULE 10.2, N.D.R.Ct. - SMALL CLAIMS COURT (PAGES 108-127 OF THE AGENDA MATERIAL)
Staff explained that the Supreme Court had put the Committee's N.D.R.Ct. 10.2 proposal out for comment. Staff reported that the Court had decided to refer the proposal back to the Committee to give the Committee the opportunity to review the comments and to report back to the Court.
Ms. Moore MOVED that the proposed amendments be approved. Judge Hagerty seconded.
A member asked whether the proposed amendments left any openings for collection bureaus to act as agents in small claims court. A member responded that removal of language allowing authorized agents to appear in small claims court seemed to preclude appearance of collection bureaus acting as agents. A member observed that statute also prohibited assignees from appearing in small claims court.
The motion to approve the amendments to Rule 10.2 CARRIED 12-2.
RULE 4, N.D.R.Civ.P. - PERSONS SUBJECT TO JURISDICTION -- PROCESS -- SERVICE (PAGES 128-148 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to N.D.R.Civ.P. 4.
Mr. Kapsner MOVED that the proposed amendments be approved. Judge Foughty seconded.
The Committee first discussed a proposed amendment that would require the complaint to be served with the summons under most circumstances. A member said that it rarely happens that a party serves a summons without a complaint. A member said it usually happens when a plaintiff is trying to gain an advantage on a defendant. A member said one legitimate rationale for serving a summons without a complaint is to preserve a lawsuit when the statute of limitations is about to run.
The Committee moved on to a discussion of proposed amendments related to filing the complaint.
A member said the proposal to require that service of a demand to file a complaint be made under N.D.R.Civ.P. 5 when the plaintiff is represented seemed appropriate. The member said making personal service on an attorney under N.D.R.Civ.P. 4 is cumbersome and unnecessary.
A member said that the provision allowing defendants to demand that plaintiffs file a complaint or face dismissal seemed a draconian measure. The member said it was preferable, if a defendant wanted a complaint filed, for the defendant to file the complaint and to recover the filing fee from the plaintiff as an element of defendant's costs.
A member said that the remedy was appropriate because if a plaintiff is unwilling to take steps to file the complaint, the case should be dismissed. A member responded that on the rare occasions when a plaintiff fails to respond to a demand to file a complaint, it is because the demand somehow gets overlooked.
A member said the provision is useful because sometimes sending out a demand to file a complaint will prompt the plaintiff to reconsider the matter and drop the case entirely. The member said the proposed change to make one defendant's demand to file effective for all defendants is a useful addition.
Mr. Kapsner MOVED to change the proposed language "made on behalf of" to "effective for." Ms. Moore seconded. The motion CARRIED unanimously.
A member said that an exception could be inserted into the provision to grant relief in cases where the statute of limitations has run. The member said making a party re-serve the summons and complaint is an appropriate remedy for failure to respond to a demand to file a complaint. The member said it was not appropriate for a party's action to be extinguished by the statute of limitations for failure to file.
A member said that explicit allowance should be made in the rule for excusable neglect. A member said a district court had found excusable neglect in a case where a demand to file was made and the complaint was then accidentally filed in the wrong district.
A member said adding exceptions to the provision would make it useless. A member responded that no reasonable party would rely on an exception in order to avoid filing a complaint in response to a demand. The member said an excusable neglect exception would only be used in rare cases in which there was actual excusable neglect.
A member said that under the current provision, service of a demand to file a complaint gets the other party's attention. The member said adding exceptions would water down the provision. A member responded that service under N.D.R.Civ.P. 4 should then be retained because such service gets more attention than service under N.D.R.Civ.P. 5.
Mr. McLean MOVED to delete the language beginning with the words "In cases" on line 64 and continuing through the end of line 68. Ms. Moore seconded.
A member said deletion of the language was appropriate because the remedy of dismissal was draconian and allowing the defendant to file to complaint as allowed by the rule was an appropriate remedy.
A member observed that the proposed amendment would remove any effective sanction for a plaintiff refusing to file a complaint in response to a demand for filing. A member said there would be no reason for a plaintiff ever to file a complaint if the plaintiff could rely on the defendant to file it and pay the filing fee.
A member suggested the provision be amended simply by changing the term "void" to "voidable" instead of deleting all the sanction language. Without objection, the proposed amendment was changed.
A member said this change would place a burden on the judge to make a judgment. A member asked what criteria a judge would use to make the determination of whether service should be voided in a given case. A member said that excusable neglect would be an appropriate standard to guide the court. A member suggested that, if excusable neglect
was the standard, this should be specified in the rule.
Without objection, the motion was changed to retain the word "void" on line 67 and to add the words "unless the court finds excusable neglect" after the word "void."
A member said that allowing an excusable neglect escape valve would diminish the impact of a demand to file a complaint. The member said that any neglect in responding to a demand to file a complaint should not be excusable, considering the amount of time given to file. The member said the draconian nature of the rule made it effective.
The motion CARRIED 10-5.
A member indicated that some attorneys do not understand that a complaint is not filed until it is received and processed by the clerk. The member suggested that the rule be amended so that the complaint would be considered filed when mailed in response to a demand to file.
Mr. Plambeck MOVED to add language at the end of line 68: "The complaint is considered filed when mailed."
A member said there is a difference between service and filing and that the proposed amendment confuses these two actions. The member said that when a judge orders something filed at a given time on a given day, that means that the item needs to be in the clerk's office by that time, not in the mail, so that the judge can act on it.
A member said that the excusable neglect exception would allow the court to account for any delay in delivery that occurs after a timely mailing.
A member said that having civil actions commence upon filing of the complaint would eliminate the need for any additional amendments to the rule.
The motion was DEFEATED.
Judge Simonson MOVED to add language at the end of line 310 of the explanatory note "The amendment provides an exception for excusable neglect." Judge Hagerty seconded. The motion CARRIED.
The main motion to approve the amendments to Rule 4 CARRIED 12-2.
The Chair observed that the issue of whether civil actions should be commenced by
the filing of the complaint had arisen during the Committee's discussion of Rule 4. The Chair indicated that if electronic filing becomes more prevalent at the district court level, it may no longer be practical to retain the current commencement by service rule. The Committee indicated that staff should be instructed to prepare materials on amending the civil rules to switch to a system of commencement by filing.
RULE 38, N.D.R.Civ.P. - JURY TRIAL OF RIGHT (PAGES 149-167 OF THE AGENDA MATERIAL)
Staff explained the proposed amendment to the explanatory note of N.D.R.Civ.P. 38.
Judge Geiger MOVED to approve the proposed amendment. Judge Foughty seconded.
A member said that the problem with the probate statute on jury trials is that it went backward. The member said that the jury demand deadline is based on the hearing date, but that the party who sets the hearing may not have any idea that another party is planning to demand a jury trial. The member said having a backward deadline is an inefficient way of dealing with jury trial demands.
The main motion to approve the amendment to Rule 38 CARRIED unanimously.
RULE 45, N.D.R.Civ.P. - SUBPOENA (PAGES 168-178 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to N.D.R.Civ.P. 45.
Judge Sturdevant MOVED to approve the proposed amendments. Judge Schneider seconded.
A member suggested that the Committee delay further discussion of the rule until the April 28 session so that the member who proposed the change could take part in the discussion.
The meeting recessed at approximately 4:00 p.m., on April 27, 2006.
April 28, 2006 - Friday
The meeting was called to order at approximately 9:00 a.m., by Justice Dale Sandstrom, Chair.
RULE 45, N.D.R.Civ.P. - SUBPOENA (PAGES 168-178 OF THE AGENDA MATERIAL)
The Committee resumed its discussion of N.D.R.Civ.P. 45, which it had begun during the April 27 session.
A member said that the rule's current requirement for parties to serve a notice of production in addition to a deposition notice when commanding a person to testify at a deposition is unnecessary and makes no sense. The member observed that the requirement is not part of the Minnesota rule or the federal rule. The member suggested the requirement is a trap for the unwary.
A member said that the subpoena itself should be sufficient when a party seeks the production of documents and things, regardless of whether the party also notices a deposition. The member suggested that the requirement to serve a notice production be eliminated.
A member said that a deposition notice or notice of production is served on the other parties so they know what is happening. The member said that the subpoena is served on the person ordered to provide testimony or other evidence. The member said the reason for the notice requirement was to prevent subpoenas from being sent out by one party without notice to the other parties.
Ms. Moore MOVED to add language to the explanatory note: "Subdivision (b) was amended, effective_______________, to eliminate the requirement for parties to serve a separate notice of request for production when commanding a person to attend a deposition to give testimony and produce documents or things." Judge Kleven seconded. The motion CARRIED unanimously.
The main motion to approve the proposed amendments to Rule 45 CARRIED unanimously.
INDIGENT COUNSEL RULE CHANGES (PAGES 19-50 OF THE AGENDA MATERIAL)
Following up on the previous day's discussion, the Committee addressed proposed new language for N.D.R.Crim.P. 44.
Judge Schmalenberger MOVED to replace the language of subdivision (b) with the following language: "(b) Ex Parte Application for Mental Health Services. An indigent defendant may apply ex parte for financial assistance to obtain the services of a mental health
professional. Upon request by the defendant, the application and the proceedings on the application must be ex parte and in camera, but any order authorizing expenditures must be made part of the public record" with language also added to the explanatory note detailing the change. Mr. Kapsner seconded.
A member asked who was responsible for paying for mental health services if financial assistance for services is authorized by the court. A member said that the state court administrator had indicated that the county was responsible. A member questioned why the county would be financially responsible for any services provided during a criminal case, except for transportation of the defendant from jail to court.
A member said that judges are required to cite the authorizing statute anytime they place a financial obligation on any governmental entity. A member said it did not necessarily matter who was required to pay here because, regardless of who pays, N.D.C.C. § 12.1-04.1-02 places an obligation on the court to make a decision on whether a defendant should get financial assistance for mental health services. A member said that the language of the rule would not need to indicate who was required to pay; the statute required court action, and the rule echoes this requirement.
A member said that N.D.C.C. § 12.1-04.1-02 required the court to take action on the question of providing mental health services only in cases where lack of criminal responsibility might be an issue at trial. The member said that, in such cases, the Commission on Legal Counsel for Indigents should be responsible for paying for the mental health services because these services are related to defending the client. A member said the county is responsible for the cost of mental health services in commitment cases, not in criminal cases.
A member said that use of the term "mental health services" in the proposed rule text was too broad and would cause defendants to come to the court seeking mental health treatment. The member said N.D.C.C. § 12.1-04.1-02 seemed only to authorize competency evaluations. A member said that the statute used the term "mental health services" but only in the context of addressing criminal responsibility. The member said expenses related to such mental health services would be expenses that are part of a defense to a criminal charge.
A member said that the use of the term "public funds" in N.D.C.C. § 12.1-04.1-02 would not support taxing a county for defense-related expenditures for mental health services. The member asked whether there had ever been a line item in a budget relating to this statute. The member suggested that any budget line item for defense-related mental health expenditures should be in the budget of the Commission on Legal Counsel for Indigents. A member observed that the heading of N.D.C.C. § 12.1-04.1-02 referred to
"state-funded mental health services."
A member said that someone should contact the Commission on Legal Counsel for indigents to alert them to the possible need to set aside money to fund mental health services under N.D.C.C. § 12.1-04.1-02. A member commented that the courts in the past had access to funds to pay for unforseen defense service needs. The member said all these funds would have been transferred to the Commission when it assumed responsibility for indigent defense.
Without objection, the pending motion was amended to add the following language to the beginning of the first sentence of the proposal: "In a case where lack of criminal responsibility is an issue," and to add a new second sentence to the proposal: "Upon a showing of a likely need for examination on the question of lack of criminal responsibility or lack of requisite state of mind as a result of the defendant's mental condition, the court shall authorize reasonable expenditures from public funds for the defendant's retention of the services of one or more mental health professionals." Without objection, an amendment to the explanatory note to reflect these changes to the proposal was also made part of the motion.
The motion to add language to Rule 44, as amended, CARRIED, unanimously.
RULE 3.2, N.D.R.Ct. - MOTIONS (PAGES 79-102 OF THE AGENDA MATERIAL)
Following up on the previous day's discussion, the Committee addressed whether language that had been proposed but rejected for inclusion in N.D.R.Ct. 3.2 should be made part of a new rule.
The text of the proposed new rule, with a rule number to be determined, was as follows: "When an evidentiary hearing is held on a motion, evidence presented by affidavit may not be considered unless, at the time of the evidentiary hearing, the party offering the affidavit makes the affiant available for cross-examination."
Judge Nelson MOVED for approval of the proposed new rule. Judge Sturdevant seconded.
A member said that the rule should apply only to domestic relations matters and be made part of section eight of the Rules of Court. The member said that the rule would most frequently be applied in domestic relations matters and that applying it in other areas might create negative consequences.
A member admitted that there might be unintended consequences if the rule was
applied to all types of cases. The member said, however, that this fact alone did not mean that the proposal was not worthwhile. The member said it would be a good idea to research how the proposal might impact areas of practice other than domestic relations.
A member said that hearings on temporary restraining orders and preliminary injunctions traditionally have been held on affidavits only. The member said live testimony in these matters is permitted only in the discretion of the trial judge. The member said the proposal was contrary to this longstanding practice. The member said the proposal could lead to the unwarranted exclusion of evidence if a party, lacking control of an affiant, was unable to produce the affiant for a hearing.
A member said affidavits are used routinely to provide basic foundational information for other evidence such as documents. The member said requiring foundation affiants to be present to testify would defeat the purpose of this practice. The member said the proposal goes too far and that requiring cross-examination of an affiant in a given case is something that should be left to the discretion of the trial judge.
A member said "evidentiary hearing" was not a clear term. The member said that hearings on motions can evolve into evidentiary hearings when testimony is introduced. A member noted that affidavits were customarily used to support summary judgment motions. The member said that if the proposal was adopted, it would be legitimate to respond to such a motion by calling an evidentiary hearing to cross-examine the affiants.
A member pointed out that N.D.R.Civ.P. 43(e) already allows a court to hear a matter on affidavits and to require additional testimony or depositions if necessary. The member said that adoption of the proposal would not provide any advantages over what Rule 43 already allows. The member said that if the court wants parties to make affiants available for cross-examination, Rule 43 permits the court to do this.
A member said that the proposal makes sense in the domestic relations context since making affiants available for cross-examination is already required in interim order proceedings. The member said that it would not be useful in other civil proceedings.
A member asked when the rule would be used in domestic relations proceedings since the requirement to produce affiants already existed in the interim order context. A member said that it would be useful in post trial modification proceedings. A member responded that having an affiant production requirement is essential in interim order proceedings because of the tight time deadlines. The member said these deadlines did not exist post judgment and that there is time to do depositions and subpoena witnesses in these proceedings.
A member said that the rationale behind the proposal is to put the cost burden of bringing in the affiants on the party who relies on the affidavit rather than on the party who is challenging the affidavit. A member said that the problem with giving judge's discretion to require affiants to appear for cross-examination is that a judge's personal decisions on this issue can take on the character of a "local rule," with some judges requiring production and others not. The member said it would be better to have a written rule on production of affiants.
A member said that a party cannot generally subpoena a person in another state to testify in North Dakota. The member said that when the affiant is in another state, the best a North Dakota party can expect is permission to depose the affiant in the other state.
A member said that N.D.R.Civ.P. 43(e) gives discretion to the court to set whatever conditions are appropriate in a given case, including the discretion to order the party that wants to rely on a deposition to produce the witness to testify.
Mr. McLean MOVED to add language to the proposed rule limiting application of the rule to domestic relations cases. Judge Simonson seconded.
A member commented that in child custody cases there are bench trials with live witnesses and no affidavits. The member said these trials may take several days. The member said the judgment arrived at through the trial can then be challenged years later by a motion to change custody supported by affidavits. The member said this is not appropriate and that a trial should be held on a motion to change custody. The member said the judge should be able to see all the witnesses.
A member said that N.D.R.Civ.P. 43(e) gives the court the discretion to hold a bench trial with live testimony in a change of custody case.
The motion to amend was DEFEATED 7-8.
The main motion to approve the new rule was DEFEATED unanimously.
RULE 704, N.D.R.Ev. - OPINION ON ULTIMATE ISSUE (PAGES 179-195 OF THE AGENDA MATERIAL)
Staff explained that attorney Thomas Dickson had proposed an amendment to N.D.R.Ev. 704 that would make the rule consistent with Fed.R.Ev. 704.
Ms. Moore MOVED for approval of the proposal. Mr. McLean seconded.
A member said that, under the present rule, a judge has the authority to limit the testimony of an expert witness regarding the ultimate issue of whether the defendant had the mental state to commit the crime charged. The member said that a party can ask for limits to be placed on such testimony under the present rule.
A member said that the Committee was correct to reject the proposed language when it addressed the amendment to the federal rule in 1986.
A member said the proposal was a good idea. A member said that, in a criminal case, an expert should not be allowed to testify on the ultimate issue of mental state. The member said that the fact that the court can limit such testimony based on other rules does not guarantee that a judge will actually limit such testimony. The member said that having a specific standard in the rule is appropriate.
A member said that the amendment was necessary on the federal level to conform with the federal insanity defense. The member said that the state insanity defense was not necessarily parallel to the federal defense. The member said that opinions on the ultimate issue of mental state can be excluded under N.D.R.Ev. 702.
A member said that there was a jury instruction that advised an expert's opinion could be disregarded.
A member said that the use of the term "inference" in the proposed language could allow a court to completely exclude an expert's testimony on mental state. A member agreed that if the proposal was approved it would create significant line-drawing problems for the court becausealmost anything an expert said about mental state could be objectionable. The member said that use of a jury instruction is the best way to address expert testimony.
The motion to approve the new language was DEFEATED 2-13.
RULE 6.12, N.D.R.Ct. - SAFE COURTROOM FIREARMS HANDLING (PAGES 196-203 OF THE AGENDA MATERIAL)
Staff explained that Judge Steven McCullough had proposed a new court rule on safe firearms handling.
Judge Kleven MOVED for approval of the new rule. Judge Geiger seconded.
A member said that it should be the duty of the sheriff or whoever is providing security to the courtroom to make the rules about firearms handling. The member said it
might be helpful if there were some guidelines to assist the security staff, but that these guidelines should come from someone with a security background. The member said the proposal should be evaluated by security personnel before the Committee makes any decision on adopting it.
A member agreed that the sheriff should be responsible for security. The member said, however, that having the sheriff be responsible for security will not prevent firearms mishaps like discovering the murder weapon is still loaded during the middle of a murder trial. The member said a rule like the one proposed would be helpful to security staff because it would give them a procedure to follow.
A member said that the rule would be useful because in some courthouses, there are no law enforcement personnel present at trial.
A member said that the rule might complicate some cases because there are times when the jury may have to be shown how a firearm works or how it is loaded. The rule's absolute bar on a firearm and ammunition ever being together would prevent such demonstrations, which are sometimes necessary. A member said there should be an exception in the rule allowing the court to allow demonstrations.
Mr. Plambeck MOVED to add a new subdivision to the rule as follows: "In the discretion of the trial judge, and subject to appropriate safety measures, the court may permit demonstrations if helpful to the jury in resolving a factual issue." Ms. Moore seconded.
Judge Nelson MOVED to amend the motion language to read: "In the discretion of the trial judge, and subject to appropriate safety measures, the court may permit a variation of this rule." Mr. McLean seconded. The motion CARRIED unanimously.
A member commented that the rule would be better suited to be included among the administrative rules rather than in the rules of court. A member agreed and commented that the rule was amazingly detailed and seemed to be an attempt to legislate common sense.
Without objection, the language of the proposed amendment to the motion was changed to "In the discretion of the trial judge, and subject to appropriate safety measures, the court may permit a departure from this rule."
The motion to add the proposed language to the rule CARRIED unanimously.
Mr. Plambeck MOVED to add language to the explanatory note as follows: "Under subdivision (j) the court may allow a demonstration that may be helpful to the jury in
resolving a factual issue." Mr. McLean seconded. The motion CARRIED unanimously.
A member said the rule should be sent out for comment from administrative and security personnel before the Committee approves it. A member said that if the Committee approves the rule as an administrative rule, it could be sent to administrative committees for comment.
Mr. Kapsner MOVED to categorize the rule as an administrative rule and to send it out for comment to the court security consultant, all county sheriff's departments, and the attorney general, for comment. Judge Simonson seconded.
The question was divided. The motion to make the proposal an administrative rule CARRIED unanimously. The motion to postpone action on the rule until comments are received CARRIED unanimously.
For future discussion after comments are received, a member suggested that language be added to paragraph (a)(2) allowing police officers and court bailiffs to carry firearms in the courtroom only when on duty or acting in an official capacity.
A member said that subdivision (g) should include a prohibition on firearms being pointed at attorneys or parties.
RULE 52, N.D. Sup. Ct. Admin. R. - INTERACTIVE TELEVISION (PAGES 204-229 OF THE AGENDA MATERIAL)
Staff explained that N.D. Sup. Ct. Admin. R. 52 was being presented for review and discussion in light of recent public comments and court decisions.
A member suggested that the rule be left as it is. The member said the rule allows a defense attorney to be a location separate from the defendant if the court decides this is appropriate. The member says this usually happens when the defendant is incarcerated at a remote location and is facing pending charges that need to be taken care of. The member said that in such cases, the defendant may not want to be transported and may instead simply want to dispose of the pending charges. The member said the rule accounts for such cases.
A member said in some cases, incarcerated defendants are eager to plead guilty from remote locations because this allows them to begin serving concurrent sentences immediately rather than waiting for an opportunity to return to the sentencing court. The member said the existing rule is a good compromise and that a rule containing an absolute requirement that the defense attorney be present with the defendant would defeat the purpose of allowing
A member said given the fact the lawyers have departed from most rural areas, a rule like the existing rule is necessary so that lawyers who will defend accused persons can be found. A member said that even in fairly large towns like Dickinson, adequate numbers of attorneys willing to do criminal defense work may not be present.
A member said the Committee should be concerned by the result of Van Patten v. Deppisch, 434 F.3d 1038 (7th Cir. 2006). The member suggested the location involved in the case, a northern county in Wisconsin, was similar to some rural areas in North Dakota. The Van Patten court decided it was improper to allow the defense attorney to appear at a guilty plea proceeding by telephone, separate from the defendant.
A member said that if a defendant could waive the right to counsel, there was no reason why a defendant could not waive the right to have the attorney present in the same place. A member said it was not clear in Van Patten whether the defendant had waived presence of counsel. A member pointed out that Rule 52 requires a clear waiver when the defendant's attorney was in a different location during a guilty plea proceeding.
A member said there were many good arguments for doing plea proceedings by interactive television but that the Van Patten case made a strong statement when the defendant's attorney is not present with the defendant during a plea proceeding, this was ineffective assistance of counsel.
A member said the main defect in Van Patten seemed to be that no one specifically asked the defendant whether proceeding without the defense attorney present was acceptable. A member said the apparent inability of the defendant to communicate privately with the defense attorney was also a major factor. The member said that it is necessary to have a system that allows private communication between the defendant and the defense attorney when hearings are held using interactive television.
A member said that, as a practical matter, guilty plea hearings are conducted remotely only when the defendant is already in prison and pleading to a sentence that will run concurrently. In such cases, the court gives the defense attorney as much time as needed to consult privately with the defendant over the remote network as necessary.
A member said standards for remote mental health hearings under the rule were more problematic than those in criminal proceedings. The member said it was troublesome that mental health patients generally have to appear alone in a room at the state hospital while their attorneys are hundreds of miles away in the courtroom.
A member said that for the rule to be truly effective, the judge would need to be given the capability to cut everyone off the system except for the attorney and client whenever confidential communication is necessary. The member said this should be the point where the system should be brought to. A member said currently this is considered to be adequate confidential communication when there is a phone and fax machine available in another room. The member said for confidential communication to be effective it must be instant.
The Committee's consensus was that the rule should be left as is for the time being.
FOR THE GOOD OF THE ORDER
The Chair asked the Committee whether it had any suggestions for work staff should accomplish prior to the next meeting.
A member said that there should be a rule provision restricting jurors from having cell phones during their term of service. A member pointed out that N.D.R.Ct. 10.1(d) deals with cell phones. The Chair assigned staff to research this issue of extending the rule to jurors.
The meeting adjourned at approximately 11:00 a.m. on April 28, 2006.
Michael J. Hagburg