TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 10.2, N.D.R.Ct., Smalls Claims Court
At its January meeting, the Committee considered and approved a new rule relating to small claims court. The rule was referred directly to the Supreme Court, which sought comments on it. After receiving comments, the Court decided to refer the rule back to the Committee. The Court requests that the Committee consider the comments and report back to the Supreme Court.
Based on suggestions found in the comments, Staff has prepared an amended rule proposal. Amendments and deletions to the rule as approved by the Committee are indicated by underlining and overstriking.
In general, the comments were in favor of the idea of allowing businesses to represented in small claims court by non-lawyers. The comment from Mark Larson is an exception: he suggests that the Committee's proposal is an encroachment on the practice of law.
Court administrator Sally Holewa suggested an amendment to subdivision (a) of the Committee's proposal to clarify that appearances in court are not necessary in the case of a default. Ms. Holewa states that most small claims court cases are handled as default matters. Staff has incorporated Ms. Holewa's suggested amendment in the amended proposal.
The SBAND Board of Governors has suggested several changes:
-- The Board suggests that the term "legal entity" be used instead of listing entities, as was done in the Committee's proposal. The Board's suggestion is incorporated in the amended proposal. Language explaining the meaning of "legal entity" is incorporated into the amended explanatory note.
-- The Board suggests that the list of possible representatives in the Committee's proposal was inadequate. The Board also objects to allowing authorized agents to represent legal entities in small claims court. Marilyn Foss, general counsel of the North Dakota Banker's Association, expresses similar concerns in her comment on the proposed rule. Because the Board's suggested amendment to the list of possible representatives seems to also address the NDBA's concerns, Staff has incorporated the Board's suggestions into the amended proposal.
The Committee may wish to take note of the fact that the Board questions whether employees should be allowed to represent legal entities in small claims court. The Board's objections seem to center on the issue of employee authority, a topic that was also discussed by the Committee at its January meeting.
The amended proposal is attached.