MINUTES OF MEETING
Joint Procedure Committee
January 26, 2006
TABLE OF CONTENTS
Rule 7, N.D.R.Crim.P., The Indictment and the Information 3
Rule 46, N.D.R.Crim.P., Release from Custody 3
Rule 32.2, N.D.R.Crim.P., Forfeiture 5
Rule 44, N.D.R.Crim.P., Right to and Appointment of Counsel 7
Rule 32, N.D.R.Crim.P., Sentencing and Judgment 9
Rule 29, N.D.R.Crim.P., Motion for a Judgment of Acquittal; Rule 33, N.D.R.Crim.P., New Trial; Rule 34, N.D.R.Crim.P., Arresting Judgment 10
Rule 6, N.D.R.Crim.P., Time; Rule 45, N.D.R.Crim.P., Computing and Extending Time 11
Rule 27, N.D.R.Crim.P., Depositions Before Action or Pending Appeal 12
Rule 3.2, N.D.R.Ct., Motions 12
Rule 8.4, N.D.R.Ct., Summons in Action for Divorce or Separation 13
Rule 10.2, N.D.R.Ct., Small Claims Court 13
CALL TO ORDER
The meeting was called to order at 1:00 p.m., on January 26, 2006, by the Chair, Justice Dale Sandstrom.
Justice Dale V. Sandstrom, Chair
Honorable Georgia Dawson
Honorable Donovan Foughty
Honorable M. Richard Geiger
Honorable Gail Hagerty
Honorable Debbie Kleven
Honorable David W. Nelson
Honorable Allan L. Schmalenberger
Honorable Mikal Simonson
Mr. John C. Kapsner
-2-Mr. Daniel S. Kuntz
Honorable Thomas J. Schneider
Ms. Jeanne L. McLean
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 been discussing term limits for members of all committees. A member suggested that if term limits were imposed for the Committee, it would be better if the term limits did not apply to the attorney members but only to the judge members. The member said that the attorney members who had been on the Committee for a number of years seemed to have a real sense of history about the what the Committee has done.
On another topic, a member asked whether it would be possible for the meeting materials to be distributed to Committee members by e-mail. The member said that this would save the cost of mailing and provide members a convenient opportunity to respond by e-mail about whether they were planning to attend the meeting. An informal poll of the Committee suggested that a majority of the Committee would support e-mail distribution of meeting materials.
APPROVAL OF MINUTES
Judge Hagerty MOVED to approve the minutes. Ms. Schmitz seconded. Motion CARRIED unanimously.
CRIMINAL RULES/ANNUAL RULES PACKAGE (PAGES 30-39 OF THE AGENDA MATERIAL)
Staff reported that the Supreme Court had approved the Committee's proposed rule amendments with a limited number of changes. Staff informed the Committee that the amendments will become effective on March 1, 2006.
RULE 7, N.D.R.Crim.P. - THE INDICTMENT AND THE INFORMATION (PAGES 40-57 OF THE AGENDA MATERIAL)
Staff explained that the Supreme Court had suggested an amendment to Rule 7 and requested that the Committee discuss the proposal.
Mr. Kapsner MOVED to approve the amendments to Rule 7. Judge Simonson seconded.
Mr. Kapsner's motion to add the rule, as amended, to the annual rules package CARRIED unanimously.
RULE 46, N.D.R.Crim.P. - RELEASE FROM CUSTODY (PAGES 58-86 OF THE AGENDA MATERIAL)
Staff explained that the Governor's Task Force on Violent and Sexual Offenders had proposed an amendment to Rule 46 that would require detention hearings in certain cases. Staff informed the Committee that Judge McCullough had also submitted a comment relevant to pretrial detention under Rule 46.
Ms. Moore MOVED to approve the amendments to Rule 46. Ms. Schmitz seconded.
A member asked why the term "person" was used in the rule instead of "defendant." Staff explained that this reflected the federal form and was likely because a material witness could also be put in pretrial detention under the rule.
A member indicated support for Judge McCullough's position. The member said the language of the state constitution requires that bail be made available for non-capital offenses. The member said if the task force wants Rule 46 changed they need to amend the state constitution first.
A member indicated that the language of the proposed amendment could be modified to possibly make it constitutional. The member suggested deletion of proposed language
requiring a magistrate to order pretrial detention. Another member suggested that the "musts" in the proposed amendment could be changed to "mays."
A member observed that the first part of the proposed amendment suggested that a detention hearing would only be held on a prosecutor's motion, but the second part of the proposal said a detention hearing must be held "immediately on the person's initial appearance." The member said these provisions did not mesh well together, because of the implication that a magistrate had to act on holding a detention hearing even if the prosecutor did not bring a motion.
A member said that the constitution would require bail to be set even if a magistrate determined under the proposal that no combination of conditions would reasonably assure the safety of the community if the person was released. A member responded that a very high bail amount could be set in such a case.
A member said that the procedure described in the first part of the proposal was similar to a regular bail hearing. The member said the last part of the proposal, requiring detention under certain circumstances, was the part that created problems. The member said that the constitution did not allow detention without the possibility of bail except in capital cases.
A member suggested that a problem the proposed amendment would address were situations where a person is charged with a misdemeanor and can bond out without a court appearance, even though the misdemeanor is a crime of violence. The member said that requiring such persons to appear for a detention hearing might provide additional protection for the community. A member responded that hearings were already required for persons charged with crimes involving domestic violence. A member added that some districts already have policies requiring court appearances when any crime of violence is charged.
A member said the procedure described in the proposed amendment would likely only be useful in the uncommon and unusual case.
A member explained that the federal law on which the proposed amendment was based provides for pretrial detention under limited circumstances. The member said that the federal procedure had been held constitutional. Members commented that the bail provision in the federal constitution was different than the state constitution's bail provision.
A member said that the proposal would be constitutional if it was limited to capital cases. A member asked for a definition of "capital cases." Several members responded that these were cases where capital punishment was an option, and that capital punishment has
not been an option in North Dakota for more than thirty years.
A member asked whether the provision could be interpreted as applying to types of cases for which capital punishment was an option at the time the state constitution was implemented. A member said that at the time of statehood murder and perhaps treason were offenses for which capital punishment was an option. A member said pretrial detention could be constitutional when such offenses are charged.
A member asked what tool could be used to keep potentially dangerous offenders locked up before trial if pretrial detention is not constitutional in most cases. Members responded that high bail could be imposed and that setting high bail in cases involving potentially dangerous offenders is completely reasonable.
A member asked whether the proposal was in response to a specific case where a North Dakota judge had released a person pre-trial and something negative had happened. A member responded that the proposal seemed to be in response to national problems rather than to any North Dakota case.
A member said that the proposal seemed to be a response to the Rodriguez case. The member commented that if the governor's task force believes that a substantive change in pretrial detention practice is required in North Dakota, it should propose a constitutional amendment.
A member said that a "capital crime" in modern North Dakota would be a AA felony. The member also pointed out that, under the proposal, pretrial detention is not mandatory unless the magistrate finds that no release conditions would assure the appearance of the person and the safety of the community.
Ms. Moore's motion to add the rule, as amended, to the annual rules package FAILED on a unanimous vote.
RULE 32.2, N.D.R.Crim.P. - FORFEITURE (PAGES 87-131 OF THE AGENDA MATERIAL)
Staff explained that Justice Maring had requested the Committee to consider adoption of a criminal forfeiture rule based on the federal model.
Judge Dawson MOVED to approve the proposal to adopt Rule 32.2. Judge Kleven seconded.
A member said a procedural rule on forfeitures would but helpful, but that provisions in the forfeiture statutes would need to be changed before such a rule would be possible. The member said adopting a rule before necessary statutory changes were made would be putting the cart before the horse.
A member observed that, under the statute, a forfeiture proceeding was a civil proceeding and a criminal conviction was not required before a forfeiture could take place. The member asked whether this meant that the burden of proof in forfeiture matters was preponderance of the evidence. A member responded that, under North Dakota law, the prosecution needs to show only probable cause for forfeiture and this causes a burden shift to the property owner to show by a preponderance of the evidence that the property is not forfeitable.
A member asked whether the burden shifting calculation would confuse the jury in a criminal prosecution. A member responded that the judge would make all decisions about forfeiture.
A member said that the proposed rule was too much at odds with the existing statutes on forfeiture. A member suggested that the question of whether an action should be a civil action or a criminal action was a question the courts could answer through a rule. A member said that a rule of procedure could supersede a procedural statute. A member said that the forfeiture statutes were substantive, not procedural.
A member commented that having a rule like the one proposed would be a good idea. The member suggested that the legislature look at the issue and give the courts the authority to make such a rule.
A member asked for an explanation of how a forfeiture action works. The member asked whether there would be a criminal prosecution and then a separate civil action to forfeit property. The member asked why a criminal procedure rule would be necessary to guide forfeiture actions when these should be conducted under the Rules of Civil Procedure. The member said that, unless the legislature changes its approach to forfeitures, the Committee should not approve a forfeiture rule.
A member said it would make sense to have the same judge who sits on the criminal case decide the related forfeiture case. The member said that a rule allowing consolidation of a criminal action with a civil proceeding would allow the same judge to decide both. A member said such a hybrid action would be confusing for the jury. A member responded that the judge would decide the (civil) forfeiture action while the jury decided the criminal case.
A member commented that adopting the rule proposal would create confusion instead of economy. The member said bringing together the forfeiture action with the criminal trial would muddy both proceedings. A member reminded the Committee that there is no need for criminal charges to be brought against anyone before a forfeiture action may be brought and property forfeited.
A member asked whether the timeliness requirement, set out in statute and developed by the Supreme Court in case law, would still apply if the rule was adopted. A member said that there was nothing in the case law that suggested any problems with the statutory scheme that the proposed rule could solve.
Staff commented that the proposed rule was based on the federal rule, but that the federal rule contained provisions that went far beyond what North Dakota's forfeiture statutes seemed to allow. Staff said that the proposed rule did not contain these provisions and, therefore, was something of a watered down product.
A member said that the rule dealt with substantive issues that properly belong to the legislature and should not be approved.
A member said that one advantage of having forfeiture proceedings fall under the civil procedure rules was that third parties who might have an interest in the property would more easily be able to involve themselves in the action. A member said it was also an advantage for the defendant to be able to defend against a forfeiture action in a separate civil action because the defendant would not have to give up self-incrimination rights in the criminal action in order to defend against the forfeiture.
A member commented that any judicial economy created by allowing simultaneous forfeiture actions and criminal prosecutions was lost if third parties claimed an interest in the property because this would require ancillary proceeding.
Judge Dawson's motion to add the proposed new rule to the annual rules package FAILED on a unanimous vote.
RULE 44, N.D.R.Crim.P. - RIGHT TO AND APPOINTMENT OF COUNSEL (PAGES 132-136 OF THE AGENDA MATERIAL)
Staff explained that, because the courts were no longer involved in appointing counsel for indigents, amendments to Rule 44 were needed.
Judge Geiger MOVED to approve the amendments to Rule 44. Mr. Sturdevant
Without objection, "2005"on lines 50 and 56 of the proposal was replaced with "2006."
A member asked about the provision of the rule allowing appointment of counsel for non-indigent defendants. A member explained that sometimes defendants cannot find an attorney to take their case. The defendant can then come to the court and the judge can appoint a defense attorney, who the defendant then has to pay.
A member said that, in some cases, a defendant will not have a low enough income to qualify for indigent counsel. Yet, the defendant still may not have enough money to hire counsel or pay a retainer, especially in a serious felony case. The court can then get involved and appoint a defense counsel and help the defendant arrange payment. The member said the court would still need to continue to do this even with the transfer of indigent defense responsibilities to the Commission on Legal Counsel for Indigents.
A member said the commission would only be appointing attorneys for defendants who were indigent. The member said that when non-indigent defendants could not find counsel, this was a judicial problem.
A member asked who was responsible for paying a court-appointed attorney if the defendant did not pay. A member responded that the court can compel payment if the defendant is convicted, but that if the defendant is acquitted, the attorney must use civil collection methods to obtain payment.
A member said that the language of the rule seemed to require the court to appoint counsel whenever a defendant alleged an inability to find counsel. The member said that the case law only requires such appointments when there is a possibility of imprisonment.
Judge Simonson MOVED to delete lines 14-15 from the proposal. Judge Kleven seconded.
A member said that a defendant has a constitutional right to be represented by an attorney at a criminal trial. The member said that, when a defendant who can afford counsel cannot find counsel, judges have always stepped in to assist. The member said that the provision on court appointments for non-indigent defendants is necessary. A member agreed that it was important to retain the provision. A member commented that requiring defendants go forward pro se in criminal cases when counsel could not be found was not appropriate.
A member said there could be situations where the judge could not find anyone to represent a defendant. The member said that the rule should not require the judge to find counsel.
Without objection, Judge Simonson's proposal to delete lines 14-15 was substituted to change the word "must" to "may" on line 14 and retain the remainder of the text.
A member wondered whether any judge would allow a trial to go forward when a defendant wanted a lawyer but claimed an inability to find one, given that any resulting conviction would likely be vacated. The member said that a judge would be required to act to appoint counsel in such a situation.
A member said that sometimes defendants who claim an inability to find a lawyer just are not trying very hard, which creates a difficult situation for the court. A member said that having an independent commission in charge of indigent defense has taken a great burden off the courts, but that requiring judges to appoint counsel in cases where defendants claim inability to locate counsel returns some of the burden.
A member responded that courts have a constitutional duty to see that all defendants who want representation can obtain representation. The member said district judges are in a good position to twist attorney's arms to assure that representation is provided.
A member said that it is only in rare situations that a non-indigent defendant will need the assistance of the court in order to obtain counsel, especially since appointment would only be required in cases where imprisonment was possible. A member agreed that such situations did not happen often.
Judge Simonson's motion, as substituted, CARRIED.
Judge Geiger's motion to add the rule, as amended, to the annual rules package CARRIED unanimously.
RULE 32, N.D.R.Crim.P. - SENTENCING AND JUDGMENT (PAGES 137-161 OF THE AGENDA MATERIAL)
Staff explained that amendments to Fed.R.Crim.P. 32.1 on revoking or modifying probation had been approved so similar amendments to Rule 32's probation provision were being proposed.
Mr. Kapsner MOVED to approve the amendments to Rule 32. Mr. Mack seconded.
Mr. Kapsner's motion to add the rule, as amended, to the annual rules package CARRIED unanimously.
RULE 29, N.D.R.Crim.P. - MOTION FOR A JUDGMENT OF ACQUITTAL; RULE 33, N.D.R.Crim.P. - NEW TRIAL; RULE 34, N.D.R.Crim.P. - ARRESTING JUDGMENT (PAGES 162-178 OF THE AGENDA MATERIAL)
Staff explained that amendments to Fed.R.Crim.P. 29, 33 and 34 had been approved so similar amendments to the corresponding North Dakota rules were being proposed.
Judge Dawson MOVED to approve the amendments to the rules. Ms. Moore seconded.
A member asked, if these rules were amended, where a party seeking an extension of time to file would turn. Staff explained that the general extension provision applicable to the criminal rules is in Rule 45.
A member asked whether the 10-day deadline in these rules could be deleted but language allowing the court to set another deadline could be retained. A member responded that this would allow parties to indefinitely delay the filing of motions under these rules.
Judge Geiger MOVED to adopt additional language in the explanatory notes of the three rules indicating that requests for additional time under these rules must be made under Rule 45. Ms. Schmitz seconded.
A member asked for clarification of what would happen if a party failed to make a motion for extension of time within the time frames currently in these rules. A member explained that the rules' time frames were jurisdictional, so if a party fails to timely file a motion or a request for extension of time, the party would not be allowed to obtain relief. The member said that the proposed changes would relax time limits for making extension requests.
The motion to amend the explanatory note CARRIED.
Judge Dawson's motion to add the rules, as amended, to the annual rules package CARRIED unanimously.
RULE 6, N.D.R.Crim.P. - TIME; RULE 45, N.D.R.Crim.P. - COMPUTING AND EXTENDING TIME (PAGES 179-196 OF THE AGENDA MATERIAL)
Staff explained that amendments to Fed.R.Civ.P. 6 and Fed.R.Crim.P. 45 had been approved so similar amendments to the corresponding North Dakota rules were being proposed.
Ms. Moore MOVED to approve the amendments to the rules. Judge Kleven seconded.
A member said it was strange that, under the proposed language, days would be added after the period. The member said that some language had been omitted from the proposal that was in the federal proposal, the words "otherwise expires." The member said that use of the word "after" would have made more sense if the omitted language had been used in the proposal. The member said that the current rule's use of "to" was preferable to "after."
Staff explained that the proposal was based on the final federal amendments and that the "otherwise expires" language appeared in an early federal draft.
Mr. Kuntz MOVED to remove the word "after" and change to "to" on Rule 6, line 34 and Rule 45, line 31. Mr. Sturdevant seconded. Motion CARRIED.
A member asked why the word "three" was spelled out in the proposal instead of a numeral being used.
Judge Simonson MOVED to use a numeral "3" on line 34 of Rule 6. Mr. Quick seconded.
A member commented that basic style rules dictated that numbers up to ten be written out and numerals used for numbers greater than ten. A member said that this rule was not consistently followed throughout the rules and that the Committee should choose a guideline for numbers and then follow it consistently.
Ms. Moore's motion to add the rules, as amended, to the annual rules package CARRIED unanimously.
RULE 27, N.D.R.Crim.P. - DEPOSITIONS BEFORE ACTION OR PENDING APPEAL (PAGES 197-207 OF THE AGENDA MATERIAL)
Staff explained that amendments to Fed.R.Civ.P. 27 have been approved so similar amendments to Rule 27 were being proposed.
Mr. McLean MOVED to approve the amendments to Rule 27. Ms. Schmitz seconded.
Mr. McLean's motion to add the rule, as amended, to the annual rules package CARRIED unanimously.
RULE 3.2, N.D.R.Ct. - MOTIONS (PAGES 208-219 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to Rule 3.2.
Judge Nelson MOVED to approve the amendments to Rule 3.2. Ms. Schmitz seconded.
A member said that the proposed amendment to the rule regarding testimony in family law proceedings should be reviewed by a broad spectrum of practitioners in family law. The member suggested that the Committee gather comments on the proposed amendment before taking further action on it. The member volunteered to distribute the proposal to members of the bar.
Ms. Moore MOVED to postpone consideration of the amendment to subdivision (b) and of the amendment to Rule 8.4 (next agenda item) so that comment could be sought from the bar. Mr. Kapsner seconded.
A member commented that postponement would be wise.
A member discussed the proposed change relating to standing orders for hearings. The member explained that the East Central Judicial District had adopted a standing order requiring hearings on certain types of motions because hearings were generally needed on these motions. The member asked why having such a requirement would be a problem.
Staff responded that standing orders, unlike local rules, are not published. Staff said out-of-town lawyers might wholly unfamiliar with standing orders and would have no way to look them up. The Chair further explained that the Rule on Local Court Rules sets out
a procedure under which lawyers and other interested parties are provided with notice of local rule proposals and have an opportunity to comment, which is something that does not happen when standing orders are issued.
The Chair said that the ECJD standing order appeared to be cover ground that should be covered in a local rule. The Chair added that the Committee's role on new local rules was to evaluate whether they should be extended statewide, but that it could not exercise this role with standing orders.
A member responded that a standing order could be issued in a more timely manner than a local rule, and that the ECJD had issued the standing order on hearings in response to an immediate need, the expiration of the former ECJD local rule on hearings. The member also said that hearings were required by statute for the types of motions embraced by the standing order.
A member commented that whether a hearing should be conducted on a motion was a procedural issue, not a substantive one, so a statutory hearing requirement was subject to being superseded by procedural rule. The member said that Rule 3.2 should apply uniformly statewide so that lawyers across the state would know what to expect when practicing outside their home districts. The member said the Committee should discuss whether standing orders and local rules should continue to exist. The member said a lawyer should be able to walk into any court in the state and know what the rules are, but that this is not a reality because of standing orders and local rules.
Mr. Kuntz MOVED to table the rule until the April meeting. Judge Geiger seconded. Motion CARRIED.
RULE 8.4, N.D.R.Ct. - SUMMONS IN ACTION FOR DIVORCE OR SEPARATION (PAGES 220-224 OF THE AGENDA MATERIAL)
Rule 8.4 was tabled pending comment by the bar on the proposed amendments.
RULE 10.2, N.D.R.Ct. - SMALL CLAIMS COURT (PAGES 225-243 OF THE AGENDA MATERIAL)
Staff explained that, because of the recent Supreme Court decision in Wetzel v. Schlenvogt, 2005 ND 190, 705 N.W.2d 836, it was not clear whether corporations and other businesses could act in small claims court without legal representation. Staff explained that the new Rule 10.2 was proposed so that businesses could continue to use small claims court without legal representation.
The Chair explained that a corporation is an artificial person that has to be represented by a natural person and that a lawyer generally plays the role of representative. In small claims court in some parts of the state, non-lawyers appear to represent corporations. The Chair said that the rule proposal addresses this circumstance.
Mr. Sturdevant MOVED to approve the new Rule 10.2. Mr. Mack seconded.
Mr. Kapsner MOVED to delete the sentence at lines 6-7, the second sentence of subdivision (a). Ms. Schmitz seconded.
A member said that if a lawyer appears to represent a party in small claims court, the lawyer should be able to represent the party without being limited by the small claims court referee. The member observed that some small claims court referees are not familiar with the rules or the law and should not be allowed to restrict lawyer behavior. A member agreed that the proposed language gave small claims court referees too much discretion to limit the scope of a lawyer's representation.
A member commented that, under the small claims court statutes (and unlike in district court) the court conducts the proceeding. The member said that small claims court proceedings are designed to be quick, so attorneys do not always get to operate as they wish. The member said lawyers should not expect small claims court to be conducted the same way as district court.
Mr. Kapsner's motion CARRIED.
Mr. Kuntz MOVED to insert the word "employee" at line 10 then to delete everything after the word "association" on line 11, with deletion continuing through line 17. Ms. Moore seconded.
A member said the change was aimed at allowing employees to appear in small claims court to represent a corporation without formal corporate authorization. The member said that companies located throughout the United States operate offices in North Dakota and periodically they become involved in small claims court actions. The member said it is typically mid-level employees like office managers and foremen who are in the best position to go and represent the company in small claims court. The member said it would create problems if these employees needed to get formal authorization from corporate headquarters before representing the company in small claims court.
A member said the motion raises the question of what happens if an employee goes into local small claims court and gets the matter removed to district court without corporate
authority to do sohas the corporation submitted to district court jurisdiction in such a case? Outside of small claims court the employee, whether authorized or not, cannot continue to represent the corporation.
A member said that an officer, owner or partner should be able to represent a business without producing documentation, but an employee or agent should be required to provide authorization.
A member responded that mid-level employees have been representing businesses in small claims court in North Dakota for years without having to show authorization documents.
A member said that a rule requiring employees to be authorized before representing a business in small claims court is needed. The member said that these employees should also be required to produce authorizing documents or other evidence (including testimony) in court.
A member said that requiring documentation would create problems. The member said if the proposal was approved, a referee would have no choice but to enter default if an employee showed up in small claims court without documentation. The member said the amount of money involved in small claims court is too small to warrant excessive formality in procedure.
A member said that a requirement for an employee or agent to provide some evidence of authority would create a minimal burden.
Mr. Kapsner MOVED a substitute motion to use the language "employee or agent" instead of "employee" and to retain language starting in line 15 of the proposal requiring evidence of authority Mr. Quick seconded.
A member responded that small claims court is not a court of record. If a party comes in and testifies about their authority, there will be nothing to show later on what they said or did not say. The member said that any exhibits are given back to the parties once the proceeding is over. The member said that the only documents filed after the proceeding are the claim affidavit, request for hearing and judgment.
A member said that adopting the proposed substitute language would complicate small claims court procedure. The member said an employee's authority to represent a business should only be an issue if the matter gets removed to district court. The member said that the small claims court statute, fairly interpreted, states that a business can appear in small claims
court without an attorney. The member said that the Wetzel decision implied that businesses would now have to hire attorneys. The member suggested that any rule changes should be directed toward correcting this problem.
A member said that the rule proposal did not address political subdivisions. The member said political subdivisions also have appeared in small claims court without attorneys.
A member said that, given the fact that limited records are kept of small claims court proceedings, requiring employees to prove that they have authority to represent businesses would be an empty gesture.
Motion to substitute FAILED.
Mr. Kuntz's motion CARRIED.
Mr. Mack MOVED to amend line 10 to add "or authorized employee or agent" and to delete all material following. Mr. Kapsner seconded.
Motion to amend CARRIED.
Ms. Schmitz MOVED to add "or political subdivision" to line 8 of rule. Mr. Kuntz seconded. Motion CARRIED.
A member asked if political subdivisions often appeared in small claims court. A member responded they appeared often in small claims court.
Without objection, "political subdivisions" was added to the title of the rule in line 8.
A member said that the language of the rule might send a message to collection agencies that they somehow qualify to act in small claims court. A member responded that the statute clearly says that assigned claims cannot be heard in small claims court. The member suggested that language be added to the explanatory note cross-referencing the statutory provision.
Judge Hagerty MOVED to add language to the explanatory note: "Under N.D.C.C.§ 27-08.1-01(3), a claim may not be filed in small claims court by an assignee of the claim." Ms. Schmitz seconded. Motion CARRIED.
A member suggested that, under the proposed language approved by the Committee,
a collection agent could appear in small claims court as an agent of a business association. A member responded that a claim could not be assigned. A member responded that this did not prevent agents from showing up on behalf of creditors.
A member said the language of the rule could be further modified to head off participation of collection agencies in small claims court.
A member asked whether the term "partnership" in the rule was broad enough to include limited liability partnerships and other variations on the partnership form. The consensus was that the term was broad enough.
Judge Hagerty MOVED to add a new sentence to the rule text: "An owner or employee of a collection agency may not act as an agent under subdivision (b)." Judge Simonson seconded. Motion CARRIED.
A member asked if the language would preclude an insurance company that paid property damages from taking an assignment from the insured. A member responded that the small claims court statute itself prevented assignees from acting in small claims court. A member said that sometimes an insurer will bring the insured into small claims court and let the insured appear to prosecute the claim.
Mr. Sturdevant's motion to approve the new rule, as amended, CARRIED unanimously.
Mr. Kuntz MOVED to forward the new rule immediately to the Supreme Court. Judge Foughty seconded. Motion CARRIED.
FOR THE GOOD OF THE ORDER
The Chair announced that the Committee had worked through its backlogged material and asked Committee members for suggestions on topics for the next meeting.
A member said that there did not appear to be a consistent procedure for formal probate hearings. The member said that there was a statutory probate jury demand procedure that was not consistent with the civil rules. The member said it might be worth looking at this. Another member suggested there was also an issue of whether Rule 3.2 applies to probate proceedings. The member said the Committee should look at how the statutes in the probate code mesh with the rules of procedure.
A member suggested that the Committee look at N.D.R.Crim.P. 45(b). The member
said almost all attorneys serve a sufficient subpoena with notice and check. The member said 45(b)(2) looks like it requires an additional document, a notice for production. The member said that this document is not generally sent with the subpoena and should not be required.
A member said the Committee should look into creating a pretrial diversion rule. The member said that Minnesota has Rule 27.05 which could be used as a model. A member responded that there is an alternatives to incarceration commission working in this area and it might be wise to wait and see what they come up with.
A member suggested that there should be a rule on safe firearms handling in the courtroom when a firearm is to be offered into evidence. The member said that Judge McCullough had been working on such a rule.
A member said the Committee should revisit N.D.R.Crim.P. 4(c)(3) on demand to file a complaint. A member said the Committee could address issues such as whether one party's demand for a complaint to be filed applies to all parties.
A member said the Committee might consider whether to expand reciprocal discovery under N.D.R.Crim.P. 16.
The meeting adjourned at approximately 4:00 p.m. on January 26, 2006.
Michael J. Hagburg