CALL TO ORDER
The meeting was called to order at 1:00 p.m., on January 28, 2010, by the Chair,
Justice Mary Muehlen Maring.
ATTENDANCEPresent: Justice Mary Muehlen Maring, Chair
Honorable Laurie Fontaine
Honorable John Greenwood
Honorable William A. Herauf
Honorable Steven McCullough
Honorable William McLees
Honorable David W. Nelson
Honorable Thomas J. Schneider
Mr. Larry L. Boschee (Friday only)
Mr. Daniel Dunn
Mr. Robert Hoy
Mr. Richard H. McGee
Ms. Joanne Hager Ottmar (Thursday only)
Mr. Steven W. Plambeck
Mr. Kent Reierson
Absent: Honorable Debbie Kleven
Honorable David E. Reich
Assistant Dean Jeanne L. McLean
Mr. Galen J. Mack
Mr. Bruce D. Quick
Staff: Andy Forward
Kim Hoge
PRELIMINARY MATTERS
The Chair introduced two new members to the Committee. Judge Fontaine, who
replaced Judge Geiger, and Judge McCullough, who replaced Judge Dawson.
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APPROVAL OF MINUTES
Judge Herauf MOVED to approve the minutes. Judge Schneider seconded. Motion
CARRIED.
RULE 44, N.D.R.Civ.P., PROOF OF OFFICIAL RECORD (PAGES 25-47 OF THE
AGENDA MATERIAL)
Staff explained that at the September meeting the Committee discussed the similarities
between Rule 44 and Evidence Rule 902. There was discussion at the September meeting
whether Rule 44 was still needed. Staff explained the Advisory Committee for Federal Rules
of Evidence had the same discussion in 1998. A memo was prepared for the Advisory
Committee discussing whether Federal Rule 44 should be abrogated. Because no problems
had been created by the coexistence of Civil Rule 44 and the evidence rules, the Advisory
Committee decided not to repeal Civil Rule 44.
Staff explained the amendments to Rule 44 were consistent with the federal form and
style amendments and intended to make the rule more easily understood and to make style
and terminology consistent throughout the rules.
Judge Kleven MOVED to approve the amendments to Rule 44. Mr. Dunn seconded.
Mr. Plambeck MOVED to repeal Civil Rule 44. Judge McCullough seconded.
A member said a lot of what was discussed at the federal level about repealing Rule
44 does not apply in North Dakota, for example, deportation proceedings and bankruptcy.
Additionally, the criminal rules do not specifically reference Rule 44 in the text of the
criminal rules.
The member said Evidence Rule 902 seems to be broader than Rule 44. Rule 44
refers to official records and the evidence rule refers to public records. The member said
something may be admitted under the evidence rules but not under the civil rules.
The member said an issue that was not addressed is if a conflict arose between Rule
44 and the evidence rules. The member wondered what would happen is something could
be admitted under Rule 44 but not under Evidence Rule 902, or vice versa. Which rule
would control? The member said a conflict could arise. The member said the evidence rules
apply in both civil and criminal cases; there should not be an evidence rule in a civil
procedure rule.
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A member said the rules of evidence are not applicable in all proceedings; therefore,
Civil Rule 44 would still be needed if the evidence rules did not apply.
The motion to repeal Rule 44 FAILED.
A member noted the language of the proposed amendments uses terms such as
“United States,” “district,” and “political subdivision.” The member said the rule appears
to be designed more for a federal system than the state. Staff explained the language is also
used in the current rule. A member said that language should be kept in the rule.
Mr. Plambeck MOVED to amend page 42, line 23, to replace the text “district or
political subdivision” with “jurisdiction.” Judge McLees seconded. The motion to amend
CARRIED.
Mr. Plambeck MOVED to amend page 42, lines 25-26, to replace the text “district or
political subdivision” with “jurisdiction.” Judge McLees seconded.
A member said the current Rule 44 uses the phrase “district or political subdivision,”
as does the federal rule. The member said it is preferable to maintain consistency with the
federal rule.
A member asked whether a court is considered a political subdivision. A member said
a court is probably not a political subdivision. A member said the current language appears
to read better than the proposed changes. A member said the language is the same in the
current rule and the proposed rule.
The motion to amend FAILED.
Judge Fontaine MOVED to reconsider the motion that amended the language on page
42, line 23, from “district or political subdivision” to “jurisdiction.” Judge Herauf seconded.
The motion to reconsider CARRIED.
Mr. McGee MOVED to amend page 42, lines 23, to replace the text “jurisdiction”
with “district or political subdivision.” Judge Herauf seconded. The motion to amend
CARRIED.
The motion to approve the proposed amendments to N.D.R.Civ.P. 44 and to send the
rule to the Supreme Court as part of the Civil Rules Package CARRIED.
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RULE 47, N.D.R.Civ.P., JURORS (PAGES 48-53 OF THE AGENDA MATERIAL)
Staff explained there was discussion at the September meeting about the terms
“venire” and “panel.” After some research, staff was unable to find whether there was any
substantive difference between the two terms. Staff said he was unable to find another state
that uses both of the terms “venire” and “panel.” Staff said other states use the term
“prospective jurors.”
Staff explained the terms “venire” and “panel” are also used in N.D.R.Crim.P. 24,
which is similar to Rule 47. If changes are made to Rule 47, Criminal Rule 24 may need to
be changed to maintain consistency.
A member said using the two terms together can lead to confusion. Staff said perhaps
this is why other states use the term “prospective jurors.” A member said the term “venire”
seems to mean the entire list of eligible jurors from which a “panel” is summoned to report
to the courthouse. The member said that is not how Black’s Law Dictionary defines it.
Mr. Plambeck MOVED to amend page 49, line 13, to replace the term “Venire” with
“Prospective Jurors,” line 14, to delete the text “an initial venire of,” and line 16, to replace
the term “jury” with “venire.” Judge McLees seconded.
A member asked if the term “venire” was used anywhere else in Rule 47. Staff said
it is only used in subdivision (a).
A member said the use of the term “jury” on line 16 may cause confusion. The
member asked if there could be a better way to word it.
Judge McLees MOVED to amend the motion on line 16, to replace the phrase “the
jury size is larger” with “there are more jurors.” Judge Herauf seconded. The motion to
amend the motion CARRIED.
Judge McCullough MOVED to amend the motion on line 14, to add the phrase “a
number of” before “prospective jurors.” Ms. Ottmar seconded. The motion to amend the
motion CARRIED.
The motion to amend CARRIED.
The Chair said that on page 51, lines 47-59, there is usage of both singular and plural
forms of nouns. She said the Committee may want to change the usage to either one or the
other to be consistent. No action was taken.
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Judge McLees MOVED to amend page 51, lines 43-44, to add the word “prospective”
before the term “juror.” Judge Schneider seconded. The motion to amend CARRIED.
A member said the current rule requires an alternate juror to be discharged after the
jury retires to consider its verdict if the alternate juror does not replace a principal juror. The
member said that in practice, some alternate jurors get upset if they sit through an entire trial
and then are asked to leave when the jury is discharged.
Mr. Dunn MOVED to amend page 51, line 55, to add “unless otherwise agreed to by
the parties” after the term “verdict.” Judge McCullough seconded.
A member asked under what circumstances this would happen. A member said this
happens a lot. The member said an alternate juror could sit for a week-long trial, and be sent
home when the jury is discharged to consider its verdict. A member said that under the
motion, both parties would have to agree to let the alternate juror stay.
By unanimous consent, “unless otherwise agreed to by the parties” was replaced with
“unless the parties otherwise agree.” The motion to amend CARRIED.
Mr. Plambeck MOVED to amend page 49, line 3, to add “prospective” before the term
“jurors.” Judge Herauf seconded. The motion to amend CARRIED.
RULE 24, N.D.R.Crim.P., TRIAL JURORS (PAGES 54-58 OF THE AGENDA
MATERIAL)
Judge McCullough MOVED to amend page 54, line 3, to insert “prospective” before
the word “jurors.” Judge Nelson seconded. The motion to amend CARRIED.
Judge McCullough MOVED to amend page 54, line 4, to delete the term “Venire” and
replace it with “Prospective Jurors,” to delete “an initial venire” and replace it with “a
number,” line 7, to delete “the venire size is larger” and replace it with “there are more
jurors.” Mr. Hoy seconded.
The motion to amend CARRIED.
Staff was directed to make other changes to Rule 24 to maintain consistency with the
amendments made to N.D.R.Civ.P. 47. Staff said the amendments would be discussed
Friday morning.
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RULE 8.2, N.D.R.Ct., INTERIM ORDERS IN DOMESTIC RELATIONS CASES (PAGES
59-65 OF THE AGENDA MATERIAL)Staff explained the comments made by attorney Tom Slorby in his letter dated
December 11, 2009. Mr. Slorby requested that the rule be amended to allow a party to
present evidence by testimony in addition to presenting evidence by affidavit. He also made
comments about the timing of the service and filing of the affidavits.
Staff said Rule 8.2(e)(2) contains the phrase “unless the court orders otherwise.” Staff
said that appears to give a court some discretion to allow evidence to be presented in a form
other than an affidavit.
A member said there is some validity to Mr. Slorby’s comments about the timing of
the service and filing of the affidavits. The member said as a movant you have to file an
affidavit ten days before the hearing. A response then has to be filed three days before the
hearing. The member said many times the response will also include a request for an interim
order from the respondent. The movant is unable to respond to the allegations made by the
respondent. The member said Minnesota uses a different time line. In Minnesota, the
movant must file fourteen days before the hearing. If the respondent also wants to file a
motion for an interim order, it must be filed ten days before the hearing. If the respondent
does not file their own motion for an interim order, the response must be filed five days
before the hearing.
The member said there has been some discussion among family law attorneys in North
Dakota about this issue. The member said there should be more study on the issue. The
member said there should be more discussion on the issue among family law attorneys before
the rule is amended.
The member also agreed with Mr. Slorby’s comments about teachers being unable to
submit an affidavit. The member said many schools have policies prohibiting teachers from
filing affidavits. The member said some social workers also do not prepare affidavits. The
member said the problem is that interim orders are done within 30 days; therefore, it may be
difficult to make a motion to the court requesting that evidence be presented in another form
within that 30-day window. The member said more study may be needed on the issue.
A member said that interim orders are to be handled expeditiously. If too much
testimony is allowed at the interim order hearings, the hearing could turn into a one day mini-trial. The member did agree that the timing provisions in the rule could probably be
amended.
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Ms. Ottmar MOVED to table discussion on the issue until the April meeting, and have
staff prepare amendments to Rule 8.2 that include timing provisions similar to Minnesota’s.
Judge Herauf seconded. The motion CARRIED.
RULE 707, N.D.R.Ev., ANALYTICAL REPORT ADMISSION; CONFRONTATION
(PAGES 66-69 OF THE AGENDA MATERIAL)Staff explained the new evidence rule adopted by the Supreme Court is in response
to the U.S. Supreme Court’s opinion in Melendez-Diaz v. Massachusetts. It becomes
effective February 1, 2010, subject to a comment period. Anyone wishing to comment on
the proposed rule may do so in writing before Monday, March 1, 2010. Written comments
may be e-mailed to Penny Miller, Clerk of the Supreme Court.
The Chair said the rule was adopted because some state statutes may be
unconstitutional in light of Melendez-Diaz v. Massachusetts, and a case, State v. Campbell,
may be unconstitutional in light of Melendez-Diaz.FEDERAL TIME-COMPUTATION PROJECT (PAGES 70-115 OF THE AGENDA
MATERIAL)
Staff explained the amendments made to the federal rules. Staff explained the method
of computing time was changed to make it easier. The time-computation project was
launched in response to frequent complaints about the time, energy, and anxiety expended
in calculating time periods.
Staff said the main change made is to count all days, including intermediate weekends
and holidays, in computing time periods under the procedural rules. The advisory
committees also reviewed every rule to ensure that all time periods would be reasonable
taking into account the effect of changing the time-computation method. The advisory
committees concluded that virtually all short time deadlines should be extended to adjust for
the effect of including intermediate weekends and holidays in calculating deadlines. The
advisory committees also proposed changing most periods of less than 30 days to multiples
of 7 days. The advisory committees adopted 7, 14, 21, and 28-day periods when possible,
so that deadlines will usually fall on weekdays. Staff said 91 federal rules were amended.
Staff pointed out the amendments made to the federal rules and how the new time
periods differ from the North Dakota rules. A member said the North Dakota rules should
be amended to be consistent with the federal rules. A member said the amendments made
to the federal rules seem to make computing time easier. A member said the changes in time
computation would make it easier on the clerks of court.
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Staff said 26 North Dakota rules would have to be amended. A member said some
Rules of Court would also need to be changed. Staff explained some North Dakota rules
have deadlines that are longer than the deadlines in the corresponding federal rules. For
example, under Fed.R.Civ.P. 6(c)(1), the time for a party to serve a written motion and notice
of hearing before the scheduled hearing date was extended from 5 days to 14 days. The time
period is 18 days in North Dakota. Staff suggested either amending the time period to 14
days to stay consistent with the federal rule, or increasing the time to 21 days.
The Chair asked if any statutes would be affected if the time periods were changed.
A member said most statutory time lines are separate from the procedural rules, so any
changes made might not affect the statutes.
By unanimous consent, staff was directed to prepare time computation amendments
to the North Dakota rules consistent with the federal amendments for consideration at the
April meeting.
2009 AMENDMENTS TO THE FEDERAL RULES (PAGES 116-136 OF THE AGENDA
MATERIAL)
Staff explained the amendments made to the federal rules that became effective on
December 1, 2009. Amendments were made to the Federal Civil, Appellate, and Criminal
Rules. A member said amendments should be proposed to the North Dakota Rules based on
the federal amendments. The member said that even if the Committee does not adopt the
proposed amendments, a record will exist showing why the proposed amendments were not
adopted.
By unanimous consent, staff was directed to prepare amendments to the North Dakota
Civil and Appellate Rules based on the federal amendments for consideration at the April
meeting. Consideration of the amendments to the Federal Rules of Criminal Procedure will
be discussed at a later meeting, possibly in September.
RULE 57, N.D.R.Civ.P., DECLARATORY JUDGMENT (PAGES 137-140 OF THE
AGENDA MATERIAL)
Staff explained that the proposed amendments to Rule 57 were consistent with the
federal form and style amendments and intended to make the rule more easily understood and
to make style and terminology consistent throughout the rules.
Mr. Dunn MOVED to approve the proposed amendments to Rule 57. Judge Herauf
seconded.
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The motion to approve the proposed amendments to N.D.R.Civ.P. 57 and to send the
rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 58, N.D.R.Civ.P., JUDGMENT; COSTS (PAGES 141-146 OF THE AGENDA
MATERIAL)
Staff explained that the proposed amendments to Rule 58 were consistent with the
federal form and style amendments and intended to make the rule more easily understood and
to make style and terminology consistent throughout the rules. Staff said Rule 58 and the
federal rule are substantially different. Therefore, the amendments were based on general
form and style principles.
Judge Nelson MOVED to approve the proposed amendments to Rule 58. Ms. Ottmar
seconded.
The Chair asked the Committee if it wanted to retain the case citations in the
explanatory note of Rule 58. The Chair said in the past some case citations have been
removed from the explanatory notes because the cases could become old law and the rules
are not reviewed that often. A member said that so long as a case is good law the last time
any action was taken on the rule, the citations should be left in. The member said the
citations can be a good reference for attorneys and judges. Staff said the two case citations
in the Rule 58 explanatory note were still good law. A member said any time a rule is to be
discussed at a meeting, staff should check any case citations to see if the cases are still good
law and inform the Committee.
The motion to approve the proposed amendments to N.D.R.Civ.P. 58 and to send the
rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 59, N.D.R.Civ.P., NEW TRIAL–AMENDMENT OF JUDGMENTS (PAGES 147-155 OF THE AGENDA MATERIAL)
Staff explained that the proposed amendments to Rule 59 were consistent with the
federal form and style amendments and intended to make the rule more easily understood and
to make style and terminology consistent throughout the rules. Staff explained Rule 59 and
the federal rule are different, except for subdivision (i) and federal rule subdivision (d).
Form and style changes were proposed.
Judge McLees MOVED to approve the proposed amendments to Rule 59. Judge
McCullough seconded.
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A member asked what the language on page 148, line 18, “arrived at by chance,”
meant. A couple of members said it is a quotient verdict. A member said a verdict arrived
at by chance and a quotient verdict seem to be different things. A verdict arrived at by
chance could be done by flipping a coin, which is different from a quotient verdict.
Staff produced Pattern Jury Instruction C-74.40 on Quotient Verdicts. A member said
this dealt with damages or apportion of fault, not a verdict.
Staff was instructed to research case law on juror misconduct and whether other states
discuss juror misconduct and arriving at a verdict by chance in their rules.
RULE 60, N.D.R.Civ.P., RELIEF FROM A JUDGMENT OR ORDER (PAGES 156-163
OF THE AGENDA MATERIAL)
Staff explained that the proposed amendments to Rule 60 were consistent with the
federal form and style amendments and intended to make the rule more easily understood and
to make style and terminology consistent throughout the rules.
Judge Schneider MOVED to approve the proposed amendments to Rule 60. Judge
Herauf seconded.
Mr. Hoy MOVED to amend page 157, line 11, to delete the text “or without.” Judge
Herauf seconded. A member said that in North Dakota, notice must be given if a clerical
mistake in a judgment or order is corrected.
The motion to amend CARRIED.
The motion to approve the proposed amendments to N.D.R.Civ.P. 60 and to send the
rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 61, N.D.R.Civ.P., HARMLESS ERROR (PAGES 164-167 OF THE AGENDA
MATERIAL)
Staff explained that the proposed amendments to Rule 61 were consistent with the
federal form and style amendments and intended to make the rule more easily understood and
to make style and terminology consistent throughout the rules.
Judge Herauf MOVED to approve the proposed amendments to Rule 61. Judge
Fontaine seconded.
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A member said the current language of the rule uses the phrase “inconsistent with
substantial justice” on page 165, line 7. The proposed language uses the phrase “unless
justice requires otherwise” on line 10. The member asked if there was a substantive
difference between “justice” and “substantial justice.” The Chair said there is case law using
the phrase “substantial justice,” but was not aware that the term was ever defined.
Judge Fontaine MOVED to amend page 165, line 10, to add the word “substantial”
before “justice.” Ms. Ottmar seconded.
A member said using the phrase “unless substantial justice requires otherwise” would
make Rule 61 different from the federal rule, which uses the phrase “unless justice requires
otherwise.” The member said federal courts would be interpreting the phrase used in the
federal rule; therefore, any interpretation of this phrase by the federal courts might not be
able to be cited in North Dakota because of the different language.
The motion to amend FAILED 9-3.
The motion to approve the proposed amendments to N.D.R.Civ.P. 61 and to send the
rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 62, N.D.R.Civ.P., STAY OF PROCEEDINGS TO ENFORCE A JUDGMENT
(PAGES 168-180 OF THE AGENDA MATERIAL)
Staff explained that the proposed amendments to Rule 62 were consistent with the
federal form and style amendments and intended to make the rule more easily understood and
to make style and terminology consistent throughout the rules.Staff said subdivisions (f),
(g), (h), (i), (j), (k), and (n) are not contained in the federal rule. Therefore, the amendments
were based on general form and style principles to make the subdivisions more easily
understood.
Judge McCullough MOVED to approve the proposed amendments to Rule 62. Judge
Herauf seconded.
The motion to approve the proposed amendments to N.D.R.Civ.P. 62 and to send the
rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 63, N.D.R.Civ.P., INABILITY OF A JUDGE TO PROCEED (PAGES 181-184 OF
THE AGENDA MATERIAL)
Staff explained that the proposed amendments to Rule 63 were consistent with the
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federal form and style amendments and intended to make the rule more easily understood and
to make style and terminology consistent throughout the rules.
Ms. Ottmar MOVED to approve the proposed amendments to Rule 63. Judge
Schneider seconded.
The motion to approve the proposed amendments to N.D.R.Civ.P. 63 and to send the
rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 64, N.D.R.Civ.P., SEIZURE OF PROPERTY (PAGES 185-189 OF THE AGENDA
MATERIAL)
Staff explained that the proposed amendments to Rule 64 were consistent with the
federal form and style amendments and intended to make the rule more easily understood and
to make style and terminology consistent throughout the rules.Staff said the explanatory
note to the rule includes citations to cases, which are still good law, striking down state laws
authorizing prejudgment remedies but not providing for prior notice and hearing.Judge Nelson MOVED to approve the proposed amendments to Rule 64. Judge
Fontaine seconded.
A member asked if the case citations in the explanatory note were still needed. A
member said it might be good to leave the citations in as a historical reference. A member
said the citations do not seem to explain the rule.
Judge McCullough MOVED to delete the text on page 186, line 20, beginning with
“In recent years,” through page 187, line 28. Judge McLees seconded.
A member said the citations could remain in the explanatory note because the cases
explain that a prior notice and hearing must be given before enforcing a prejudgment remedy.
A member said the rule itself references the statutes, which state that prior notice must be
given. The member said explaining how the statutory procedure evolved does not need to
be in the explanatory note.
The motion FAILED 7-5.
Mr. Hoy MOVED to amend page 186, line 20, to delete the text “In recent years,
many” and replace it with the word “Some.” Judge Herauf seconded. The motion to amend
CARRIED.
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The motion to approve the proposed amendments to N.D.R.Civ.P. 64 and to send the
rule to the Supreme Court as part of the Civil Rules Package CARRIED.RULE 65, N.D.R.Civ.P., INJUNCTIONS (PAGES 190-194 OF THE AGENDA
MATERIAL)
Staff explained that the proposed amendments to Rule 65 were consistent with the
federal form and style amendments and intended to make the rule more easily understood and
to make style and terminology consistent throughout the rules.Staff said Rule 65 and the
federal rule are substantially different. Form and style amendments were proposed.
Mr. Hoy MOVED to approve the proposed amendments to Rule 65. Judge
McCullough seconded.
A member said that under the North Dakota Constitution, procedure is established by
the judicial branch, not the legislative branch. The member said the rule states the procedure
for granting injunctions is governed by statute, which is inconsistent with the constitution.
The member said there was discussion in the past about simplifying the procedure and
incorporating it in the rule. The member did not remember if anything had ever been drafted
and discussed at a prior meeting. By unanimous consent, staff was instructed to check if any
work was ever done on incorporating procedure into Rule 65.
RULE 66, N.D.R.Civ.P., RECEIVERS APPOINTED BY DISTRICT COURTS (PAGES
195-199 OF THE AGENDA MATERIAL)
Staff explained that the proposed amendments to Rule 66 were consistent with the
federal form and style amendments and intended to make the rule more easily understood and
to make style and terminology consistent throughout the rules.
Judge Nelson MOVED to approve the proposed amendments to Rule 66. Judge
Herauf seconded.
A member asked about the phrase “the historical practice in district courts” on page
196, lines 13-14. The Chair said the phrase is in the federal rule, so that is probably why it
is in the state rule.
Judge Nelson MOVED to amend page 196, line 15, to delete the word “his” and
replace it with “the receiver’s.” Judge McCullough seconded. The motion to amend
CARRIED.
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A member said the rule seemed difficult to understand. The member said it should
be a given that when a receiver is appointed, the receiver is expected to follow the laws of
the state. The member said it did not seem like the rule had much substance. A member said
a receiver under the rule seemed to be similar to a special master under Rule 53.
Ms. Ottmar MOVED to amend page 196, lines 13-14, to delete the phrase “and the
historical practice in district courts.” Judge McCullough seconded. A member said the
phrase probably refers to common law. The motion to amend CARRIED.
A member said as long as the Committee is discussing the rule, it should try to
understand the purpose of the rule. The member said the purpose of the rule does not seem
very clear.
Mr. Plambeck MOVED to table discussion of the rule and discuss it at the next
meeting. Judge McLees seconded. The motion to table CARRIED. Staff was instructed to
research the rule to figure out the purpose of the rule when it was enacted.
RULE 67, N.D.R.Civ.P., DEPOSIT IN COURT (PAGES 200-203 OF THE AGENDA
MATERIAL)
Staff explained that the proposed amendments to Rule 67 were consistent with the
federal form and style amendments and intended to make the rule more easily understood and
to make style and terminology consistent throughout the rules.
Judge Herauf MOVED to approve the proposed amendments to Rule 67. Judge
Schneider seconded.
A member asked if other members have had problems with this rule in practice. The
member said in private practice it was difficult to deposit money with the court. The member
said as a judge it has also been difficult, if not impossible, to deposit money with the court.
The member said district court clerks are unwilling to deposit money into an interest-bearing
account, because they have to use their own social security number or taxpayer identification
number to open the account, or they need a party’s identification number. The member said
parties are also unwilling to do this. The member thought a better practice could be
developed and incorporated into a rule. Other members agreed with the comments.
A member said the clerks do not have the logistical capabilities to physically take
money and deposit it into an interest-bearing account. A member said that has gotten worse
since the state took over the clerks’ offices. A member said, in the past, each county would
have an account at a financial institution where money could be deposited.
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A member said in some cases the parties can agree on whose identification number
will be used to open the account, but problems can arise when the parties cannot agree. A
member said a party does not want to use its identification number unless it knows it is going
to get the money.
A member said this process is easier in federal court. The member said the federal
clerks have their own interest-bearing accounts, and will issue a 1099 to whoever gets the
money. The member said that process seems to work fine.
A member said if the State Court Administrator’s Office could open an account with
the Bank of North Dakota, and issue 1099s to whoever gets the money, it would solve a lot
of problems. The Chair said this is an issue that could be discussed by the Administrative
Council. A few members said they were members of the Administrative Council. The Chair
said if the federal courts are doing this, the state might also be able to do it. Other members
said it would be a good idea if the Administrative Council discussed this.
The motion to approve the proposed amendments to N.D.R.Civ.P. 67 and to send the
rule to the Supreme Court as part of the Civil Rules Package CARRIED 11-1.
The meeting recessed at 5:00 p.m. on January 28, 2010.
January 29, 2010 - Friday
The meeting was called to order at approximately 9:00 a.m. by Justice Mary Muehlen
Maring, Chair.
RULE 24, N.D.R.Crim.P., TRIAL JURORS (PAGES 54-58 OF THE AGENDA
MATERIAL)
Staff prepared amendments to Rule 24 consistent with the amendments made to
N.D.R.Civ.P. 47. The members received a handout containing the amendments.
Judge Nelson MOVED to approve the proposed amendments to Rule 24. Judge
Herauf seconded.
Judge Nelson MOVED to amend line 4, to delete the phrase “Unless otherwise
stipulated by the parties” and line 5, to delete the term “must” and retain the current language
of “The court may call for examination.” Mr. Hoy seconded.
A member said jury selection in criminal trials would take longer if the court did not
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have discretion over the examination of prospective jurors. The member said a one-day
criminal trial could take two days if it took longer to select a jury. The member said a jury
could be picked in an hour under the current process; under the proposed amendment, it
could take two to three hours.
The member said a process that is used allows the attorneys to address the entire jury
panel before it is cut down to twelve or six members plus the peremptory challenges
available. The member said this speeds up the jury selection process. The member said
individual voir dire of prospective jurors is done for bigger felony cases, such as gross sexual
imposition. The member said individual voir dire is generally not needed in the average DUI
misdemeanor case.
A member said, in their district, the process used is similar to the process that is
proposed, and there have not been problems. A member said, from a trial attorney’s
perspective, it can be very difficult to question all of the prospective jurors at one time. A
member said it is good to have uniformity throughout the state rather than each court having
a different process.
A member said, under the current system, attorneys could contact the judge before a
case begins to see what process the judge uses. If the attorney objects to the process, a
different one could be used.
A member asked when challenges for cause are exercised under the process when all
of the prospective jurors are questioned at once. A member said challenges for cause are
used while all of the prospective jurors are present. A member said challenges for cause are
done outside the presence of the prospective jurors. The member said, after peremptory
challenges are used up, the prospective jurors being discharged do not know the reason for
the dismissal. The member said this is done so a lawyer will not have to worry about
alienating a juror if a challenge for cause is denied.
The motion to amend FAILED 7-6.
A member said perhaps a provision could be added giving a court discretion over the
jury selection process in criminal trials with a jury size fewer than twelve members.
Judge Greenwood MOVED to amend line 4, to add “and except for trials with a jury
of fewer than twelve” after “Unless otherwise stipulated by the parties.” Judge Nelson
seconded.
A member said there should be uniformity in the rule. The member said giving a court
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discretion over the process in misdemeanor cases such as DUI could be workable, but it is
good to have consistency and uniformity in the rule so a lawyer knows how the process will
work unless the parties stipulate otherwise. A member said some judges tend to do things
their own way, so the consistency might be lost.
A member said the court should approve of the jury selection method if it is stipulated
by the parties.
Mr. Hoy MOVED to amend the motion, to delete “Unless otherwise stipulated by the
parties, and” on line 4, and add a new sentence “In trials with a jury of six, and in any case
upon stipulation of the parties and consent of the court . . . .” Before the motion was
completed, the motion to amend and the motion to amend the motion were both
WITHDRAWN.
A member said it might be easier if the rule were broken up to state the jury selection
process in a trial with a six-person jury and the process in a trial with a twelve-person jury.
Mr. Reierson MOVED to amend line 4, to delete the phrase “Unless otherwise
stipulated by the parties” and replace it with “When a twelve-person jury is to be impaneled,”
and line 7, to add the phrase “unless otherwise stipulated by the parties and approved by the
court” after the phrase “peremptory challenges available to the parties,” and line 7, to add a
new sentence “When a six-person jury is to be impaneled, the court may call for examination
a number of prospective jurors equal to the number of jurors necessary for the jury plus the
number of peremptory challenges available to the parties.” Judge Nelson seconded.
A member said it is generally understood by lawyers that a court must approve any
process that is stipulated by the parties, but it would still be good to put that in the rule.
Mr. Plambeck MOVED to amend the motion on lines 5-6, to delete the phrase “a
number of prospective jurors equal to the number of jurors necessary for the jury” and
replace it with “twelve prospective jurors” and lines 8-9, to delete the phrase “a number of
prospective jurors equal to the number of jurors necessary for the jury” and replace it with
“six prospective jurors.” Mr. Hoy seconded.
A member said the proposed language does not take into consideration alternate
jurors. A member said the phrase “number of jurors necessary for the jury” includes alternate
jurors.
The motion to amend the motion was WITHDRAWN.
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The motion to amend CARRIED 9-3.
Without objection, staff was instructed to draft language in the explanatory note
explaining the changes made to paragraph (a)(1) to be discussed at the April meeting.
RULE 68, N.D.R.Civ.P., OFFER OF SETTLEMENT OR CONFESSION OF JUDGMENT,
TENDER (PAGES 204-211 OF THE AGENDA MATERIAL)
Staff explained that the proposed amendments to Rule 68 were consistent with the
federal form and style amendments and intended to make the rule more easily understood and
to make style and terminology consistent throughout the rules.Staff said subdivisions (a) -
(d) are very similar to the federal rule, but subdivisions (e) - (g) are not contained in the
federal rule; therefore, form and style amendments were proposed. Staff also said the word
“tender” was replaced with the word “offer.”A member said that “tender” may have a more specific meaning than “offer.” The
member said making an offer to pay is different from actually producing the money. The
member said it may be a substantive change to change “tender” to “offer.” Staff said he was
unable to find any North Dakota cases discussing the term “tender.” Mr. Boschee MOVED to approve the proposed amendments to Rule 68. Judge Herauf
seconded.
A member said the proposed amendments change the language of the rule from “offer
of judgment” to “offer of settlement.” The member said you usually make an offer of
settlement to avoid a judgment. The member said a client would rather settle than have a
judgment entered against them. A member said one reason why judgment is entered is to
allow the parties to go through a process of taxing costs and disbursements. The member
said the purpose of the rule is to shift the burden of costs and disbursements. A member said
the costs can be made part of the settlement. A member said there could be a dispute over
costs.
Judge McCullough MOVED to amend page 206-207, lines 36, 38, 40, 41, and 44, to
delete the term “offer” and retain use of the term “tender.” Judge McLees seconded.
A member said it seems that “tender” requires something more than just making an
offer. A “tender” would require that the funds be available to satisfy the offer. The member
said anybody can make an offer, but not a tender. A member said there have not been any
problems using the term “tender” in the rule.
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The motion to amend CARRIED.
Mr. Hoy MOVED to amend page 205, line 21, to delete the phrase “to allow
judgment.” Mr. Dunn seconded.
A member said the proposed amendments to Rule 68 removed the word “settlement.”
The Chair said the amendments are consistent with the federal rule. A member said the
current rule allows a party to make an offer of settlement and to enter into a stipulation
dismissing the claim or to allow judgment to be entered accordingly, but the proposed
amendments do not allow that. Under the proposed amendments, a judgment must always
be entered if the offer is accepted.
A member asked if there had been problems with North Dakota’s Rule 68 or if the
amendments were made to stay consistent with the federal rule. The Chair said the
amendments were proposed to stay consistent with the federal rule.
The motion to amend was WITHDRAWN.
Judge Nelson MOVED to have staff redraft the rule to make form and style
amendments and retain the existing language regarding offer of settlement for the April
meeting. Judge McLees seconded. The motion CARRIED.
RULE 69, N.D.R.Civ.P., EXECUTION (PAGES 212-215 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to Rule 69 were consistent with the federal
form and style amendments and intended to make the rule more easily understood and to
make style and terminology consistent throughout the rules.
Judge Herauf MOVED to approve the proposed amendments to Rule 69. Mr. Hoy
seconded.
A member said the rule states the procedure on execution must accord with state
statutes. The member said the procedure could be made part of the rule.
Mr. Plambeck MOVED to have staff research the statutory procedure to see if it could
be incorporated in Rule 69. Judge Herauf seconded.
A member said the procedures on execution, such as notice and timing, could
probably be put into the rule. A member asked if it was the Supreme Court’s desire to have
procedure stated in the rules. The Chair said in general the Court would prefer to promulgate
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rules of procedure, but there are areas where the Court has allowed the legislature to dictate
procedure.
A member said the execution statutes have both substantive and procedural elements,
and it may be difficult to separate the two. The member said sometimes it is difficult to tell
whether something is substantive or procedural. The member said the current rule seems
fine.
The motion FAILED.
The motion to approve the proposed amendments to N.D.R.Civ.P. 69 and to send the
rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 70, N.D.R.Civ.P., JUDGMENT FOR SPECIFIC ACTS-VESTING TITLE (PAGES
216-219 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to Rule 70 were consistent with the federal
form and style amendments and intended to make the rule more easily understood and to
make style and terminology consistent throughout the rules.
Judge Schneider MOVED to approve the proposed amendments to Rule 70. Judge
Herauf seconded.
The motion to approve the proposed amendments to N.D.R.Civ.P. 70 and to send the
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rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 71, N.D.R.Civ.P., PROCESS IN BEHALF OF AND AGAINST PERSONS NOT
PARTIES (PAGES 220-223 OF THE AGENDA MATERIAL)
Staff explained that the proposed amendments to Rule 71 were consistent with the
federal form and style amendments and intended to make the rule more easily understood and
to make style and terminology consistent throughout the rules.
Judge McCullough MOVED to approve the proposed amendments to Rule 71. Judge
Schneider seconded.
Mr. Hoy MOVED to amend page 221, line 7, to add a comma after the term
“nonparty.” Judge Schneider seconded. The motion to amend CARRIED.
The motion to approve the proposed amendments to N.D.R.Civ.P. 71 and to send the
rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 77, N.D.R.Civ.P., DISTRICT COURTS AND CLERKS (PAGES 224-229 OF THE
AGENDA MATERIAL)
Staff explained that the proposed amendments to Rule 77 were consistent with the
federal form and style amendments and intended to make the rule more easily understood and
to make style and terminology consistent throughout the rules. Staff explained the proposed
amendments use the term “matter” on line 25. “Matter” replaced the phrase “motions and
applications,” which is used on line 17.
Judge Nelson MOVED to approve the proposed amendments to Rule 77. Judge
Herauf seconded.
A member said the current title of the rule seems clearer than the proposed change.
Mr. Hoy MOVED to retain the title of the rule as “District Courts and Clerks.” Judge
Schneider seconded. The motion CARRIED.
A member said the current rule allows a court to alter or rescind a clerk’s action upon
cause shown, and the proposed amendments require “good cause.” The Chair said the
federal rule made the same change. A member said there probably is not a big difference.
A member said more might be required to show “good cause” rather than just “cause.”
Mr. Plambeck MOVED to amend page 226, line 23, to delete the term “good.” Mr.
Hoy seconded. The motion to amend CARRIED.
The motion to approve the proposed amendments to N.D.R.Civ.P. 77 and to send the
rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 80, N.D.R.Civ.P., TRANSCRIPT AS EVIDENCE (PAGES 230-232 OF THE
AGENDA MATERIAL)
Staff explained that the proposed amendments to Rule 80 were consistent with the
federal form and style amendments and intended to make the rule more easily understood and
to make style and terminology consistent throughout the rules.
Judge Herauf MOVED to approve the proposed amendments to Rule 80. Judge
Schneider seconded.
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The Chair said the federal rule does not use the phrase “stenographically or
electronically recorded,” which is used in North Dakota. The Chair said the federal rule
might be broader because it does not use the phrase.
Judge McCullough MOVED to amend page 231, line 6, to delete the phrase
“stenographically or electronically recorded.” Judge Nelson seconded. The motion to amend
CARRIED.
The motion to approve the proposed amendments to N.D.R.Civ.P. 80 and to send the
rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 81, N.D.R.Civ.P., APPLICABILITY IN GENERAL (PAGES 233-239 OF THE
AGENDA MATERIAL)
Staff explained that the proposed amendments to Rule 81 were consistent with the
federal form and style amendments and intended to make the rule more easily understood and
to make style and terminology consistent throughout the rules.Staff said Rule 81 differs
from the federal rule. Form and style amendments were proposed.
Mr. Dunn MOVED to approve the proposed amendments to Rule 81. Mr. Boschee
seconded.
A member said the rule states that special statutory proceedings are excluded from the
rules if they are in conflict with the procedure specified in the civil rules. The member said
a constitutional issue could arise, because the Supreme Court has jurisdiction and authority
over procedure.
The Chair said the Court used to be more acquiescent when the legislature would
encroach on the Court’s constitutional authority. The Chair said the current Court is more
sensitive when the legislature attempts to encroach on the Court’s authority. The Chair said
when the rule comes before the Court for consideration, it could make changes if the Court
believes a constitutional problem exists.
The motion to approve the proposed amendments to N.D.R.Civ.P. 81 and to send the
rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 83, N.D.R.Civ.P., PRACTICE WHEN PROCEDURE NOT SPECIFIED (PAGES
240-243 OF THE AGENDA MATERIAL)
Staff explained that the proposed amendments to Rule 83 were consistent with the
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federal form and style amendments and intended to make the rule more easily understood and
to make style and terminology consistent throughout the rules. Staff said Rule 83 and
Fed.R.Civ.P. 83 differ substantially. Form and style changes were proposed.
Judge Herauf MOVED to approve the proposed amendments to Rule 83. Judge
McCullough seconded.
Mr. Hoy MOVED to delete the language on page 241, line 20, and the term “for” on
line 10. Judge Nelson seconded. The motion to amend CARRIED.
The motion to approve the proposed amendments to N.D.R.Civ.P. 83 and to send the
rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 84, N.D.R.Civ.P., APPENDIX OF FORMS (PAGES 244-246 OF THE AGENDA
MATERIAL)
Staff explained that the proposed amendments to Rule 84 were consistent with the
federal form and style amendments and intended to make the rule more easily understood and
to make style and terminology consistent throughout the rules.
Judge McLees MOVED to approve the proposed amendments to Rule 84. Judge
Herauf seconded.
The motion to approve the proposed amendments to N.D.R.Civ.P. 84 and to send the
rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 86, N.D.R.Civ.P., EFFECTIVE DATE; STATUTES SUPERSEDED (PAGES 247-252 OF THE AGENDA MATERIAL)
Staff explained that the proposed amendments to Rule 86 were consistent with the
federal form and style amendments and intended to make the rule more easily understood and
to make style and terminology consistent throughout the rules. Staff explained the effective
date of the rules was moved from subdivision (a) to the explanatory note. Staff said Table
B would be repealed if the proposed amendments were adopted by the Committee. Staff said
Table B primarily contains references to the revised code of 1943.
Mr. Hoy MOVED to approve the proposed amendments to Rule 86. Judge Herauf
seconded.
Mr. Plambeck MOVED to amend page 248, line 14, to add the term “not” after the
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term “would,” and line 15, to delete the term “infeasible” and replace it with “feasible.” Mr.
Hoy seconded.
The Chair said the federal amendments use the word “infeasible.”
Judge McLees MOVED to amend the motion on page 248, line 15, to add the term
“would” before the term “work.” Mr. Hoy seconded. The motion to amend the motion
FAILED 7-5.
The motion to amend was WITHDRAWN.
Mr. Reierson MOVED to amend page 248, line 20, to add the phrase “amendments
thereto” after the term “rules,” and to delete the phrase “or any amendments to these rules.”
Judge Nelson seconded. The motion to amend FAILED.
A member said an exception might have to be added to subdivision (b) for Rule 81,
because Rule 81 states procedure in special statutory proceedings trumps the rules. The
member said Rule 81 and Rule 86 seem to conflict.
The motion to approve the proposed amendments to N.D.R.Civ.P. 86 and to send the
rule to the Supreme Court as part of the Civil Rules Package CARRIED.
The Chair said the next meeting is April 29-30, 2010, in Fargo.
The meeting adjourned at approximately 11:30 a.m., on January 29, 2010.
Andrew Forward