MINUTES OF MEETING
Joint Procedure Committee
September 25, 2008
TABLE OF CONTENTS
Annual Rules Package 2
Rule 41, N.D. Sup. Ct. Admin. R., Access to Court Records 2
Rule 45, N.D.R.Civ.P., Subpoena 6
Rule 16, N.D.R.Civ.P., Pretrial Conferences, Scheduling, Management 7
Rule 24, N.D.R.App.P., Appeals by Indigent Defendants 7
Rule 8.2, N.D.R.Ct., Interim Orders in Domestic Relations Cases 12
Rule 5, N.D.R.Crim.P., Initial Appearance Before the Magistrate 14
Rule 616, N.D.R.Ev., Bias of Witness 18
Rule 22, N.D.R.Civ.P., Interpleader 19
Rule 24, N.D.R.Civ.P., Intervention 20
Rule 25, N.D.R.Civ.P., Substitution of Parties 20
Rule 26, N.D.R.Civ.P., General Provisions Governing Discovery 21
Rule 27, N.D.R.Civ.P., Depositions Before Action or Pending Appeal 22
Rule 28, N.D.R.Civ.P., Persons Before Whom Depositions May Be Taken 22
Rule 29, N.D.R.Civ.P., Stipulations Regarding Discovery Procedure 23
CALL TO ORDER
The meeting was called to order at 9:00 a.m., on September 25, 2008, by the Chair, Justice Mary Muehlen Maring.
ATTENDANCE
Present:
Justice Mary Muehlen Maring, Chair
Honorable Georgia Dawson
Honorable M. Richard Geiger
Honorable John Greenwood
Honorable Debbie Kleven
Honorable David W. Nelson
Honorable David E. Reich
Honorable Allan L. Schmalenberger
Honorable Michael G. Sturdevant
Mr. Larry L. Boschee
-2-
Mr. Daniel Dunn
Mr. Galen J. Mack
Assistant Dean Jeanne L. McLean
Mr. Steven W. Plambeck
Mr. Bruce D. Quick
Absent:
Honorable Thomas J. Schneider
Mr. Richard H. McGee
Mr. Ronald H. McLean
Ms. Joanne Hager Ottmar
Ms. Cathy Howe Schmitz
Staff:
Mike Hagburg
Kim Hoge
PRELIMINARY MATTERS
The Chair discussed the schedule for the meeting and reviewed the schedule for future meetings.
APPROVAL OF MINUTES
Mr. Sturdevant MOVED to approve the minutes. Judge Geiger seconded. Motion CARRIED unanimously.
ANNUAL RULES PACKAGE (PAGES 31-34 OF THE AGENDA MATERIAL)
Staff explained that the Committee's annual rules package was before the Supreme Court and that a hearing on the proposed rule amendments in the package had been set for October 23, 2008.
A member commented that the State's Attorneys Association was considering whether to oppose adoption of proposed N.D.R.Crim.P. 32.3 on pretrial diversion.
RULE 41, N.D. Sup. Ct. Admin. R, ACCESS TO COURT RECORDS (PAGES 35-67 OF THE AGENDA MATERIAL)
-3-
Staff reported that some language in N.D. Sup. Ct. Admin. R. 41 on juror records was inconsistent with the Supreme Court's recent opinion in Forum Communications Company v. Paulson, 2008 ND 140, 752 N.W.2d 177. Staff also passed along a recommendation from the State Court Administrator on amending the rule to restrict access to sexually explicit material in court records.
Judge Kleven MOVED to approve proposed amendments to Rule 41. Mr. Quick seconded.
Staff reported that Jim Ganje of the Court Administrator's office had indicated that a proposed change to language in the rule on access to juror information forms might not be consistent with statutory language. Staff said Ganje recommended that the existing language in the rule be retained.
A member said that the proposal to restrict access to juror addresses and telephone numbers if these were "not generally available to the public" was problematic. The member said that, as a practical matter, even though this standard came from the Forum case it would be difficult to apply because the meaning of "not generally available to the public" was not clear.
A member said that some people, such as public officials, have taken deliberate steps to protect their addresses and telephone numbers for their own safety and privacy. A member asked whether clerks would be required to check phone books to see whether a potential juror's address and phone number were unlisted in order to satisfy the proposed rule.
A member replied that the issue of whether an address or telephone number was unlisted could be brought to the court's attention through the juror questionnaire. The member said that a person who had obtained an unlisted number to escape harassment should be protected from having the number exposed when called to jury duty.
A member said that jurors sitting on a controversial case who are afraid of having their telephone number and address released to the media should be given the same protection. A member asked whether anyone had been involved with a case where the media had attempted to contact a juror during or after trial. A member said it was not uncommon for the media to contact jurors following a high-profile trial.
A member asked why the court should be required to provide records containing juror address and telephone number information even when this information is generally available to the public. The member said people seeking this information can use other means than the court to obtain it and should not require the court to provide a directory service.
-4-
A member responded that juror telephone numbers and addresses are currently required on juror qualification forms, which are public records. The member said the forms could be changed to omit phone numbers and addresses, protecting juror privacy. Potential jurors could instead be asked whether they were residents of a given county and the length of their residence.
A member asked what would happen if court staff needed to telephone a potential juror how would they know the number? A member replied that the new juror system requires potential jurors to call into the court.
A member said that the Forum case said that the names, addresses and telephone numbers of jurors were open to the public. The member said the public gets everything unless a juror can show that a specific telephone number or address is not generally available. The member said that in the Forum case, juror telephone numbers and addresses were on both the juror qualification form and the special questionnaire and that the Court said this information was public. The member said that all information on the qualification form is public by statute.
A member said that the current language of Section 5(b)(5) of Admin. R. 41 was consistent with the holding of the Forum case: juror information was public unless access is restricted by the court.
A member raised a concern about the proposal to restrict access to sexually explicit material in cases involving minors. The member said federal law prohibits disclosing any evidence of child pornography. The member asked whether the proposed language was broad enough to incorporate this kind of evidence.
Staff said that the draft language condensed the Georgia statutory language that served as a model for the proposal and that the draft language could be amended to embrace all material the Committee agreed would be appropriate to restrict from public access.
A member observed that the draft language did not limit public access to sexually explicit material in cases that did not involve minors. The member said if the reference to minors was struck, the rule would then restrict access to all sexually explicit material, including material in cases involving minors.
A member said that the Committee seemed to be assuming that the phrase "sexually explicit material" referred only to things like books, photos and videos. The member said that a document such as an affidavit of probable cause with police reports attached could also contain sexually explicit material. The member asked whether such documents, which are
-5-
currently public records, would need to be sealed if the draft language was approved.
A member suggested that the Committee members take a look at the Georgia statute. The member said that the Georgia language embraced sexually explicit materials across the whole spectrum of possibility. A member replied, however, that the Georgia statute operated within limits because it covered only crimes involving minors.
A member said that if the prohibition on disclosure turns out to be too broad in a given case, the rule allows a motion to be made to the court to permit disclosure. The member said it was preferable to err on the side of caution in prohibiting access to sexually explicit material. The member said that access to sexually explicit material should be prohibited under the rule with the understanding that the prohibition can be challenged on a case-by-case basis.
A member said that it was pretty common for police reports to include graphic descriptions of sex crimes and for this material to end up in newspapers. The member said that the newspapers are generally cautious not to identify the victim. The member said the rule should be focused on restricting access to images, not to police reports or verbal descriptions.
A member said it would be difficult to draft language that would adequately delineate standards stating when it would be appropriate to allow public access to sexually explicit material. The member said the better approach was to use the simple and inclusive language proposed and allow people to move the court for access when they believe sexually explicit material should be released.
Judge Dawson MOVED to amend page 44, line 151-53, to restore the existing language of the rule. Judge Kleven seconded. Motion CARRIED.
A member said that the rule applied to civil cases as well as criminal cases, so the language relating to sexually explicit material could come into play in divorce cases when one party presents evidence to show the moral depravity of the other party.
Judge Schmalenberger MOVED to amend page 44, line 155, to delete "involving a minor." Ms. McLean seconded. Motion CARRIED.
The main motion to approve the amendments to N.D. Sup. Ct. Admin. R. 41 CARRIED.
A member asked whether juror addresses and telephone numbers would be public
-6-
information under the amendments as approved. The consensus was that this information would be public, but that a juror who wanted to keep this information private could move the court to protect it. A member said it seemed unfair to require jurors to have to take such steps, especially jurors who are unfamiliar with the procedure for seeking protection for personal information.
A member said that some juror questionnaires contain instructions advising jurors of steps they can take to protect their personal information, such as seeking an in camera hearing. The member said the general juror qualification form did not include similar instructions. A member replied that adding such instructions would be a good idea.
Judge Schmalenberger MOVED to have staff contact the Jury Standards Committee to pass on the Committee's recommendation that jurors be advised of their right to protect their address and telephone number information. Mr. Mack seconded. Motion CARRIED.
Judge Geiger MOVED to suggest to the Supreme Court that the new amendments to Admin. R. 41 be considered along with the amendments the Committee previously provided to the Court. Judge Kleven seconded. Motion CARRIED.
RULE 45, N.D.R.Civ.P., SUBPOENA (PAGES 68-83 OF THE AGENDA MATERIAL)
Staff explained that an attorney had submitted comments to the Supreme Court on the Committee's proposed amendments to Rule 45 and made general suggestions about several possible further amendments. Staff requested feedback from the Committee on the suggested amendments.
A member said the suggested amendments seemed to address problems that can occur when a party or attorney does not cooperate in responding to an opponent's discovery requests. The member said that changing Rule 45 would not solve these problems.
A member said that the amendments the Committee had already made to Rule 45 would make the rule more clear. The member said Rule 45 was primarily intended as a means for obtaining information from non-parties. The member said that when parties seek information from each other, they are obligated under Rule 5 and the discovery rules to communicate and cooperate. The member said that sanctions under Rule 37, not a subpoena under Rule 45, are appropriate when a party is not forthcoming with information.
The member said the concern expressed about witness fees being paid to parties subject to subpoena was not an issue when the discovery process is appropriately used to obtain information. The member said that the changes proposed were contrary to the purpose
-7-
of Rule 45 and the civil discovery process.
A member suggested that, if a person commenting on proposed rule changes would like to make additional amendments, the person should submit draft amendments rather than general suggestions on possible changes.
The consensus of the Committee was that no further amendments to Rule 45 were necessary.
Staff explained that the Committee had discussed Rule 16 at the April meeting and directed staff to make changes to the rule's terminology and bring the rule back for further consideration.
Judge Schmalenberger MOVED to approve proposed amendments to Rule 16. Mr. Boschee seconded.
Judge Geiger MOVED to amend page 86, line 41, to replace the word "and" with "or." Ms. McLean seconded. Motion CARRIED.
By unanimous consent, the deleted word "judge" was restored on page 90, line 113.
The motion to approve proposed amendments to N.D.R.Civ.P. 16 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 24, N.D.R.App.P., APPEALS BY INDIGENT DEFENDANTS (PAGES 98-116 OF THE AGENDA MATERIAL)
Staff reported that Chief Justice VandeWalle requested that the Committee discuss whether an appellate rule setting out an Anders brief procedure and a procedure to allow indigent defendants to submit supplemental briefs should be adopted in North Dakota.
Judge Sturdevant MOVED to approve proposed new Rule 24. Judge Kleven seconded.
A member said that if a litigant and an attorney are disagreeing about the grounds for an appeal it generally means that ineffective assistance of counsel will be an issue on appeal. The member said that when the trial attorney sees an issue like this on the horizon, they file
-8-
the notice of appeal, give notice of a conflict, and new counsel is appointed. The member said this was an appropriate way of dealing with the problem.
Staff said that having a new attorney appointed to handle an appeal was a somewhat common practice. Staff said that the Supreme Court, however, was seeing an increasing number of cases where defendants were seeking to change attorneys again after having a new attorney appointed on appeal.
The Chair said that the Indigent Defense Commission was now appointing some counsel just to do appellate work. The Chair said the Court had a number of cases where the only issue was sufficiency of the evidence and the attorneys appointed on appeal often had hopeless cases in these situations. The Chair said the first question the Committee needed to address was whether to allow appointed attorneys in these cases to file Anders briefs.
The Chair said the second question to address was what to do in situations where appellate counsel file a brief and the defendant contacts the court claiming there were issues that appellate counsel refused to raise and requesting the chance to raise those issues. The Chair asked whether supplemental briefs should be allowed in these cases and whether the defendant should be allowed to argue the additional issues on appeal.
A member asked how the clerks would be affected if supplemental briefs were allowed, whether the clerks would be required to provide copies of transcripts and documents to assist the defendant. The Chair said probably notthe defendant still has an attorney, the defendant just wants to file arguments above and beyond what the attorney provided.
A member asked what the Court was doing now in these cases. The Chair said requests to file supplemental briefs were dealt with on a case-by-case basis and 99 percent of the time such requests were denied. The Chair said that a number of courts have rules allowing supplemental briefs, but that many of these courts do not routinely allow oral argument. The Chair said that if supplemental briefs were allowed by rule in North Dakota, oral argument would be a big issue because of the state's liberal policy allowing oral argument.
A member said that having a supplemental brief rule would not help the Court much if the oral argument policy was not addressed.
A member asked if a case would be dismissed if an attorney was allowed to withdraw based on there being no grounds to appeal. Staff said that, in an attempt to comply with the North Dakota Constitution and the Court's cases that have found a right to appeal, the proposed rule would allow the defendant to continue to prosecute the appeal on a pro se
-9-
basis. A member replied that a rule cannot supersede a Constitutional right.
A member said that it seemed to be a question of whether it was preferable to have an attorney argue a position that was possibly frivolous or to have an indigent defendant making an argument without the assistance of an attorney. A member said that the Court has consistently rejected the Anders brief approach in favor of appointing attorneys to handle appeals on behalf of indigent defendants.
The Chair said that the Chief Justice has raised the issue of allowing Anders briefs because the Court was seeing an increasing number of cases where attorneys were being forced to argue essentially frivolous appeals. The Chair said attorneys are also faced with opening themselves to ineffective counsel claims if they bring appeals that exclude points the defendant seeks to raise.
A member asked whether it would be helpful to add rule text or an explanation that oral argument is not a right when a party files a supplemental brief.
Judge Sturdevant MOVED to amend page 101, line 34, adding a sentence: "Participation in oral argument is permitted only by order of the court in exceptional cases." Mr. Dunn seconded.
A member asked whether the Court ever eliminated oral argument under Rule 34. The Chair said that the Court had begun examining briefs and determining whether oral argument should be denied on a case-by-case basis. The member asked whether it was necessary to amend proposed Rule 24 given that the Court was already evaluating cases to determine whether to allow oral argument.
The Chair said that the problem was that, in cases where a defendant seeks to submit a supplemental brief, the decision on oral argument was more complicated because the Court might be inclined to allow the attorney to argue the positions raised in the brief but to deny argument on the supplemental brief. The Chair said that making it clear in the rule that the defendant who files a supplement brief will not generally be allowed to argue the brief would reduce the Court's workload.
By unanimous consent, page 101, line 34, was amended to eliminate a typographical error.
A member wanted to make sure that it was clear that a supplemental brief was not an Anders brief. Staff said subdivision (a) of the proposed rule dealt with Anders briefs and subdivision (b) dealt with supplemental briefs.
-10-
By unanimous consent, Judge Sturdevant's motion was amended to add language specifying that it applied to indigent defendants: "Participation in oral argument by the indigent defendant is permitted only by order of the court on its own motion in exceptional cases."
A member said the additional language made clear that the Court, on its own, would decide whether to allow oral argument by an indigent defendant.
A member said that it did not seem that the proposed rule would save the Supreme Court any work. The member said Rule 34 and Rule 35.1 already contained mechanisms to allow the court to waive oral argument and summarily decide cases. The member said that if the Committee decides to proceed with consideration of the rule, the Commission on Legal Defense for Indigents should be given an opportunity to comment.
A member said that the proposed amendment would be useful because the Court would not have to even address the issue of oral argument for the indigent defendant when a supplemental brief is submitted unless the Court decides in a given case that it wants to take a further look at an issue raised by the indigent defendant.
The member said Rule 34 did not seem to cover a situation where the Court wants to hear oral argument between attorneys but does not want to hear the indigent defendant. The member said that once the Court decides under Rule 34 to have oral argument in a matter, the indigent defendant who submits a supplemental brief has a claim to participate in the argument. The member said the question of an indigent defendant's eligibility to participate in oral argument should be resolved in proposed Rule 24 and that such participation should be wholly a matter of the Court's discretion.
Motion CARRIED.
A member questioned a provision on page 100, lines 10-11, allowing the prosecutor to challenge an attorney's claim that a defendant's appeal is frivolous. The member said that the person who should be allowed to respond to a frivolous appeal motion is the indigent defendant, not the prosecutor.
A member said that when an indigent defendant is not satisfied with an attorney on appeal and seeks the attorney's dismissal, the defendant is voluntarily taking the risk of having to proceed pro se. The member said that the language on page 100, lines 14-16, essentially gives the attorney the right to force the defendant to proceed pro se if the attorney thinks the defendant has no case on appeal. The member said that this was improper because a defendant has a right to counsel on appeal under North Dakota law.
-11-
A member said that subdivision (a) of the proposed rule is not consistent with the North Dakota Supreme Court's opinions rejecting the Anders brief concept. Staff said that the Chief Justice was aware that the Court had rejected Anders, but that he wanted the Committee to discuss the issue of whether it was possible to have a rule that could implement a similar procedure within the bounds of the Constitution.
A member said that the rule would provide a framework of safeguards to protect the rights of indigent defendants in cases where their attorneys believed an appeal would be frivolous. A member said that all subdivision (a) of the proposed rule does is permit the withdrawal of counsel, it does not prohibit an appeal.
A member said that the proposed rule addressed a special circumstance, a criminal case with an indigent defendant, and that in this circumstance the law seems to allow the appointed counsel to bring an appeal that counsel believes is without merit. The member said that in a civil case, an attorney could be sanctioned for following the request of the client to appeal if the attorney believes an appeal is without merit. The member said the proposed rule protects lawyers by allowing them to withdraw if they believe an appeal is frivolous.
A member said the case law makes clear that a criminal defendant has the right to appeal and the right to counsel at all stages. The member said the Supreme Court would have to reverse itself before subdivision (a) of the rule could be accepted.
Mr. Plambeck MOVED to amend page 100, lines 2-3, to substitute "indigent defendant" for "appellee." Mr. Quick seconded. Motion CARRIED.
Mr. Quick MOVED to delete lines 3-16 on page 100 and to renumber accordingly. Mr. Boschee seconded. Motion CARRIED.
The Chair pointed out that language on page 101, lines 25-28, did not seem consistent with State v. Noack, which required an appellant's argument to contain its contentions and reasoning with citations to authority and the record.
A member asked whether pro se appellants had the means to locate citations to authority. The Chair said currently that many pro se appellants do provide the required authority although some do not. The Chair said that the Court requires pro se appellants to follow the rules. The Chair admitted that there was a movement in some other states to allow pro se litigants more leeway.
Judge Sturdevant MOVED to amend page 101, lines 25-28, to read: "The court will not consider an indigent defendant's statement of additional grounds for review if it does not
-12-
inform the court of the nature and occurrence of alleged errors. Reference to the record and citation to authority is required." Mr. Mack seconded. Motion CARRIED.
Mr. Plambeck MOVED to amend page 100, line 19, to delete the words "identified a good faith argument on appeal and." Ms. McLean seconded.
The motion to approve the proposed new N.D.R.App.P. 24 and to send the rule to the Supreme Court as part of the Annual Rules Package CARRIED.
Staff explained that an attorney had requested that the Committee discuss changing affidavit practice in domestic relations cases under Rule 8.2. Staff prepared two alternative versions of Rule 8.2 based on the attorney's suggestions: Alternative 1 would eliminate affidavit practice and require live testimony and Alternative 2 would integrate affidavit standards from modeled on N.D.R.Civ.P. 56.
Judge Sturdevant MOVED to approve the Alternative 2 version of the proposed amendments to Rule 8.2. Judge Kleven seconded.
A member said that even on summary judgment motions under Rule 56, affidavits are submitted that violate the rule. The member said that attorneys generally do not object to the non-complying affidavits.
A member said that the sanctions provision did not seem appropriate for the rule. The member said that imposing sanctions, if necessary, could be done under another rule.
Mr. Plambeck MOVED to delete the affidavit sanctions provision on page 126, lines 78-81. Judge Dawson seconded. Motion CARRIED.
Judge Dawson MOVED to amend the Explanatory Note on page 127, lines 88-89, to delete reference to the sanctions provision. Mr. Plambeck seconded. Motion CARRIED.
A member asked whether the Rule 56 language inserted on page 123, lines 11-13, was necessary. The member said it was the responsibility of the court to weigh whether the material in an affidavit was admissible and competent evidence. A member replied that the language emphasized that affidavits must comply with the certain rules.
A member said that the court needs to evaluate affidavits differently based on the
-13-
context, whether an affidavit supports an ex parte order or whether it supports an interim order and the affiant is available for cross examination. The member said the courts need greater flexibility to weigh the contents of an affidavit at early stages in the action and when the affidavit supports an ex parte motion.
A member said that it might be useful to delete the proposed language requiring the affidavit to contain admissible evidence while retaining the proposed language requiring the affidavit to be made on personal knowledge. A member agreed that explicitly requiring personal knowledge would be appropriate because many affidavits contain conclusory statements rather than facts.
A member said that the proposed language would be a gentle reminder to parties about the basic requirements for an affidavit. The member said that parties rarely move to challenge or strike affidavits, but if the proposed language were made part of the rule, there may be more critical analysis of affidavits by the parties.
A member said that some affidavits are not submitted on personal knowledge but on information and belief. The member said the person submitting the affidavit might need to report something that a child told them. The member said there may be other circumstances where the affiant did not actually witness an event but they have knowledge that leads them to believe something to be true.
Judge Dawson MOVED to delete the proposed new language on page 123, lines 11-13. Mr. Plambeck seconded. Motion FAILED on a tie vote.
Judge Nelson MOVED to amend language on page 123, lines 11-13 to remove the personal knowledge requirement from the proposed new language. Mr. Mack seconded.
A member said that the proposed new language is identical to the language used in Rule 56 on summary judgments. The member said that the matters covered by Rule 8.2 are more important than matters under Rule 56. The member said that it seemed reasonable to require personal knowledge for an affidavit under Rule 8.2 and this language should not be
deleted. The member said the personal knowledge could be based on hearsay depending on the circumstances.
A member said the rule in its present form requires that the affidavit set forth specific facts justifying the issuance of an order. The member said the current language also requires the movant to appear personally and show good cause for the issuance of an order. The member said that the current language of the rule requires the court to determine that there are specific facts to justify the order. The member said the proposed new language does not
-14-
improve the rule. The member said that judges must be allowed to use their good sense to evaluate affidavits under the rule.
A member said that apparently there is a problem with judges allowing inadequate affidavits. A member replied that, if there is a problem, imposing Rule 56 standards for domestic relations affidavits is unlikely to solve the problem or improve the standards required of affidavits. A member said that amendment of the rule to impose new standards for affidavits is unnecessary because the rule already contains appropriate standards.
The motion FAILED.
The main motion to approve the Alternative 2 version of the proposed amendments to N.D.R.Ct. 8.2 FAILED 11-4.
Staff reported that Chief Justice VandeWalle had asked that the Committee examine a proposal to expand the use of uniform citations in criminal cases and to discuss possible amendment of Rule 5 to guide the use of uniform citations.
The Chair said that the Supreme Court had recently decided an opinion on uniform citations. The Chair said that state statutes currently allow use of uniform citations only in cases involving game and fish violations or traffic law violations. The Chair said that one issue was that uniform citations are apparently being used when law enforcement officers discover other offenses, such as drug violations, in connection with traffic stops. The Chair said it would be useful to hear from the trial judges how extensively uniform citations were being used.
The Chair also said that in some cases where a uniform citation was used, the accused never sees a judge for an initial appearance because they are released under a bail schedule. The Chair said that in such cases, there is often nothing in the fileno charging document for the trial court to review when the person does finally appear in court.
A member said that some courts only allow cases to go forward under a uniform citation when the case is one that falls under the specific statutory requirements, i.e., a traffic violation. The member said if some other offense is charged, like a drug offense discovered during a traffic stop, a criminal complaint must be filed. The member said that courts should be very careful in cases where a uniform citation is used because the probable cause determination is made by the person who writes up the citation. The member said it is
-15-
inappropriate for felonies to be charged on a uniform citation, but that the courts have seen this happen.
A member said that law enforcement officers have authority to make warrantless arrests under certain circumstances. The member said that law enforcement has 48 hours to process such cases and get the proper charging documents to the court. The member said this was the appropriate procedure. The member said it was appropriate to allow uniform citations in traffic cases but that going further was dangerous.
A member said that the expansion of the use of uniform citations had a constitutional dimension. The member said that an arrest under a uniform citation was a warrantless arrest. The member said that North Dakota and United States Supreme Court cases have found the Constitution to require a probable cause determination within a reasonable time after a warrantless arrest. The member said anything over 48 hours is a unreasonable delay.
The member said that in practice, delay between the issuance of a uniform citation and the probable cause determination has been expanded beyond reason. The member said that Rule 5 contains a mechanism designed to get the accused before a judge without reasonable delay, but that the uniform citation statutes claim that Rule 5 does not apply when a uniform citation is issued. The member said that regardless of what the uniform citation statutes say, there is a constitutional violation if the probable cause determination is delayed unreasonable after a warrantless arrest under a uniform citation. The member said that if the use of uniform citations is expanded, provisions need to be made for a probable cause determination within a reasonable time.
A member said that in the northeastern part of the state, law enforcement have long used uniform citations for minors in possession. The member said no attorney had ever objected and that it had always been allowed because minor in possession is a simple charge. The member said that for other charges, arrest affidavits had been developed so that when an officer brings a person in under arrest without an warrant, the officer would have to make a sworn statement of facts indicating the basis for the arrest. The magistrate then uses the statement to evaluate whether probable cause is established. The member said the probable cause determination was followed by a bail hearing and a complaint as soon as possible.
A member said the City of Fargo had ignored the 48-hour probable cause requirement for many years. The member said the new procedure is to allow accused persons held 48 hours to bail out under the bail schedule. The member said a probable cause determination can be done ex parte, but it must be done to satisfy constitutional requirements.
A member said that there are some situations where expanding the use of uniform
-16-
citations to minor offenses would be useful. The member said there has been no proposal to expand uniform citations to felonies. The member said that if a minor is pulled over for speeding and it turns out there is also a can of beer in the vehicle, it makes sense to charge both offenses on a uniform citation and to allow the person to bond out according to the bond schedule. The member said if the person is not allowed to bond out in that time, a hearing should be held within 48 hours. The member said the state's attorneys understand there is an interplay between the statutes, the rules, and the state and federal Constitutions and they want to work with the courts on constitutionally expanding the use of uniform citations.
A member said that every district had its own bond schedule and set different bonds for different purposes. A member said some bond schedules only covered traffic offenses and with anything else, law enforcement was required to get the state's attorney involved. The member asked whether it was appropriate to make bond schedules uniform across the state.
A member said staff should work with the State's Attorneys Association to determine what statutory changes are planned and what rule changes are appropriate.
A member said the reason why problems had developed was because of misuse of uniform citations. The member said that when uniform citations were originally developed, they were designed to be a uniform document that summoned a person to court to answer for a specified offense. Because the person was not in custody, Rule 5 and the Constitution were less of a concern. The member said that now, the use of uniform citations had been expanded to cases where people were arrested, sometimes on fairly serious charges like driving under the influence. The member said that there was reason to be concerned that use of uniform citations would be expanded to even more crimes. The member said that using a uniform citation was fine when it was used as a summons, but that using it in tandem with an arrest is what leads to problems.
A member said that even when the uniform citation is used as a summons, problems can occur. The member said that the language of the game and fish uniform citation leads some people to believe they are being summoned to a trial. The member said that this causes people to show up with witnesses and are prepared to go to trial when they are only scheduled for an initial appearance. A member replied that people are rarely taken into custody on a game and fish citation and typically they pay a fine according to the bond schedule.
A member said that it was unwise to expand the use of uniform citations if law enforcement is going to continue to use uniform citations when arresting people. The member said that this practice leads to breakdowns in communication between law
-17-
enforcement and the state's attorneys. This leads to no action being taken when someone is in jail until the court checks the jail log. The member said that if the court does not check the jail log every day, people end up sitting in jail for 5-6 days on a misdemeanor citation. The member said that state's attorneys have a responsibility to educate law enforcement when arrests should be made and if state's attorneys do not have time to prepare complaints within 48 hours of an arrest, the person should not be arrested.
A member said that if a person is stopped for a traffic offense and there is drugs or alcohol in the car, law enforcement has the right to place the person under arrest. The member said that in such a case, the uniform citation provides information to the person about the offense for which they were arrested. The member said this is an example of a valid warrantless arrest and it would be appropriate to expand the use of uniform citations to such cases so that people would have information on the reason for their arrest. The member said that some jails send e-mails every day to the courts, the clerks office, and the state's attorney about who is in custody so that no one ends up sitting in jail.
A member replied that in some parts of the state people are sitting in jail for days and days because they are brought in on a uniform citation and the system lost track of them. The member described a situation where a person sat in jail for 13 days on a misdemeanor charge before seeing a judge.
A member said that people sitting in jail too long on a legitimate arrest was not the only problem. The member said that an even more serious problem was people being jailed on uniform citations where an examination by a court or the state's attorney would have shown there was no probable cause. The member said that allowing people to sit in jail for any period of timeeven 48 hourswhen probable cause is wholly lacking causes people to lose faith in the justice system. The member said such cases are rare, but they do happen. The member said this is why it is important to have a trained attorney evaluate arrests.
A member said that if the proposed expansion of the use of uniform citations is limited to offenses connected with traffic stops, it would not be a problem. The member said that problems would develop if law enforcement were allowed to rely on uniform citations as a tool for making warrantless arrests.
A member asked how staff should be directed to act on the issue of uniform citations. The member asked whether the Committee supported expanding, limiting, or somehow clarifying the use of uniform citations. A member replied that staff should not be asked to work without direction. The member said the State's Attorneys Association should be asked to provide a specific proposed amendment to Rule 5 for staff and the Committee to consider.
-18-
Staff said that the current statutes on uniform citations attempted to supersede Rule 5, an act in derogation of the Supreme Court's power under the North Dakota Constitution. Staff said that the Court was solely responsible for determining rules of procedure under the Constitution. A member said that the state's attorneys desired to work with the Committee to ensure the statutes and the rules work together.
A member said that uniform citations did not run afoul of the rules or the Constitution when used as originally intended, as summonses. The member said the problems with uniform citations, and the reason why expanding their use was so dangerous, is that uniform citations are being used instead of complaints. The member said that the statutory language attempting to supersede Rule 5 should be removed not only because the legislature has no power to supersede a procedural rule, but because it is unconstitutional. The member said that Rule 5 contains protections granted by the Constitution, which guarantees that people appear within a reasonable time before a magistrate for a probable cause determination.
A member suggested that Rule 5 could be amended to account for uniform citations. A member replied that amending Rule 5 would not remove the need to obey the Constitution's requirements in cases where people are arrested on uniform citations.
A member said that a significant underlying problem revealed by the Committee's discussion was a lack of uniformity across the state by law enforcement, state's attorneys, and the courts in dealing with people arrested on uniform citations. The member said this problem shows why work is needed on Rule 5 and the uniform citation statutes.
Staff was instructed to communicate with the State's Attorneys Association to inform them that the Committee is open to considering a proposal to amend Rule 5 to address the use of uniform citations. The consensus of the Committee was that the state's attorneys should be asked to provide a concrete proposal to amend the rule.
RULE 616, N.D.R.Ev., BIAS OF WITNESS (PAGES 143-146 OF THE AGENDA MATERIAL)
Staff explained that an attorney had requested that the Committee consider adoption of a new rule of evidence on witness bias based on Minn.R.Ev. 616.
Mr. Quick MOVED to approve the proposed new Rule 616. Mr. Dunn seconded.
A member said that a witness's credibility could always be attacked based on bias, interest or prejudice. A member said it was surprising that Minnesota had a separate rule on witness bias given that they generally followed the Federal Rules of Evidence.
-19-
A member said the comment to the Minnesota rule cited to a U.S. Supreme Court case, United States v. Abel, 469 U.S. 45 (1984), and said that the rule codified the holding of that case. The member, however, said that the Minnesota comments also said the rule reaffirms existing practice.
Staff said that the comments to the Uniform Rule of Evidence on which the Minnesota rule was based state that the rule was intended to reduce confusion about the admissibility of witness bias evidence.
A member said that because it is the role of judges or the jury to weigh witness credibility, the proposed rule is not necessary.
A member said that courts allow evidence of bias, prejudice and interest to be used in attacking the credibility of a witness, even though there may not be a specific rule allowing it. The member said the rule essentially restates the obvious and that Rule 403 governs admission of this evidence. The member said the proposed rule would not add much to the existing rules.
A member said that an attorney arguing for the admission of witness bias evidence could rely on Abel, which states that the Federal Rules of Evidence allow admission of this evidence. The member said that Rule 611 also addresses credibility of witnesses.
The main motion to approve the proposed new Rule 616 FAILED.
RULE 22, N.D.R.Civ.P., INTERPLEADER (PAGES 147-158 OF THE AGENDA MATERIAL)
Staff explained that the proposed amendments to Rule 22 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 there was some unique and possibly obsolete language on interpleader by substitution in the current rule which would be deleted by the proposal.
Judge Dawson MOVED to approve the proposed amendments to Rule 22. Judge Kleven seconded.
A member said that a defendant who successfully obtains the old remedy of interpleader by substitution would be discharged from the action. The member said that under a regular interpleader action, the defendant can bring a counterclaim that could include other parties. The member said that under the federal rule and federal practice (on which the
-20-
North Dakota rule is based and on which state practice is modeled) the court has discretion once the interpleader claim is brought to discharge the defendant. Consequently, the member said, the old interpleader by substitution action has no application in modern practice.
The motion to approve the proposed amendments to N.D.R.Civ.P. 22 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 24, N.D.R.Civ.P., INTERVENTION (PAGES 159-164 OF THE AGENDA MATERIAL)
Staff explained that the proposed amendments to Rule 24 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. Mack MOVED to approve the proposed amendments to Rule 24. Ms. McLean seconded.
The motion to approve the proposed amendments to N.D.R.Civ.P. 24 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 25, N.D.R.Civ.P., SUBSTITUTION OF PARTIES (PAGES 165-171 OF THE AGENDA MATERIAL)
Staff explained that the proposed amendments to Rule 25 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 Geiger MOVED to approve the proposed amendments to Rule 25. Judge Sturdevant seconded.
By unanimous consent, the word "not" on page 166, line 4, and the word "directs" on page 167, line 37, were restored.
A member said that in the federal rule, the word "may" was used in the last line of paragraph (a)(1). The member said that, in the draft, the word "must" is used in the same clause at page 166, line 13. The member said that this was an understandable word choice because the current rule uses "shall." The member asked the Committee whether the mandatory or discretionary word was more appropriate.
Staff said that the version of the federal rule on which the current North Dakota rule
-21-
was based used "shall." Staff said the federal committee had apparently determined that the discretionary term "may" was appropriate as a substitute for "shall" in this clause.
A member said that "may" was a better choice: if a plaintiff dies, and a statement of death is made on the record, this opens a 90-day window during which a motion for substitution should be made. Under the proposed language, dismissing the action would be mandatory if no motion was made during the 90-day window. The member said that giving the court the option to keep the action open to see if someone surfaces to step into the shoes of the plaintiff would be appropriate.
Mr. Mack MOVED to substitute the word "may" for "must" on page 166, line 13. Judge Nelson seconded.
A member said that giving the court discretion on whether to dismiss was also in the case of a contentious probate where there was a dispute about who would serve as personal representative. The member said there are some cases where more time is needed to determine who should substitute for the deceased.
A member said there were many legitimate circumstances where substitution was not possible within 90 days and it should be within the discretion of the court to determine whether delay is reasonable.
Motion CARRIED.
The motion to approve the proposed amendments to N.D.R.Civ.P. 25 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 26, N.D.R.Civ.P., GENERAL PROVISIONS GOVERNING DISCOVERY (PAGES 172-198 OF THE AGENDA MATERIAL)
Staff explained that the proposed amendments to Rule 26 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 that the North Dakota version of the rule does not strictly follow the federal rule and the Committee should consider whether any of the proposed amendments would substantively alter North Dakota practice.
Mr. Boschee MOVED to approve the proposed amendments to Rule 26. Mr. Quick seconded.
-22-
A member said that the renumbering of the rule could interfere with research: Rule 26(b)(4) is now Rule 26(b)(5). The member said that the rule was the same substantively under the proposed, but the reorganization could cause confusion. The member said it would be best if discovery of experts could be kept at 26(b)(4) and insurance discovery at 26(b)(3) so that the rule would at least be consistent with past practice.
A member asked whether following the federal reorganization would be preferable to following past state practice. A member said the main issue was the positioning of 26(b)(3), which has long been insurance discovery in North Dakota but which in the federal rule was now trial preparation materials.
Staff said there were two numbering options: keeping the "traditional" numbering from the state rule or matching the numbering of the current federal rule. Staff asked whether the Committee preferred a particular option. A member said keeping the rule consistent with North Dakota precedents was probably more important than matching the federal rule because North Dakota has never adopted all the provisions of federal Rule 26.
By unanimous consent, staff was directed to examine the Rule 26 proposal and renumber consistent with state precedent so that the Committee may consider the rule again at the next meeting.
Staff explained that the proposed amendments to Rule 27 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 Dawson MOVED to approve the proposed amendments to Rule 27. Judge Reich seconded.
The motion to approve the proposed amendments to N.D.R.Civ.P. 27 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
Staff explained that the proposed amendments to Rule 28 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.
-23-
Judge Sturdevant MOVED to approve the proposed amendments to Rule 28. Ms. McLean seconded.
The motion to approve the proposed amendments to N.D.R.Civ.P. 28 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
Staff explained that the proposed amendments to Rule 29 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. Mack MOVED to approve the proposed amendments to Rule 29. Mr. Plambeck seconded.
The motion to approve the proposed amendments to N.D.R.Civ.P. 29 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
The meeting adjourned at approximately 1:30 p.m., on September 25, 2008.
_________________________________
Michael J. Hagburg