TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 3.2, N.D.R.Ct., Motions
The Committee looked at proposed changes to Rule 3.2 at its January meeting. The Committee decided to defer consideration of the changes.
Proposed changes to Rule 3.2 include form and style changes to subdivision (a), including dividing the subdivision into numbered paragraphs to improve clarity and moving language about oral argument request deadlines into the new paragraph (a)(3).
Creating a new subdivision (b) on court hearings is also proposed.
The proposed new subdivision includes a paragraph (b)(1), which would contain existing language on a court's power to hear oral argument on motions. Proposed new language on hearings by electronic means including interactive television is added to existing language allowing telephonic hearings.
Paragraph (b)(1) would also include a limitation on a court's ability to order oral argument without first reviewing the parties' submissions. This limitation is a response to the East Central Judicial District's standing order requiring hearings to be held on certain specified types of motions without case-by-case review. A copy of the standing order is attached.
Comments were made at the January meeting that motion practice rules should be uniform statewide. In light of these comments, the Committee may wish to consider whether to delete language in the explanatory note suggesting that hearings on Rule 3.2 motions can be required by local rule. Given that local rules are approved by judicial districts and not by the Supreme Court, the explanatory note language seems open to question.
On the other hand, for the sake of uniformity across the state, the Committee may wish to discuss incorporating the ECJD standing order language into the rule. A paragraph requiring hearings in certain types of cases could be inserted into new subdivision (b).
Proposed new subdivision (b) also includes a paragraph (b)(2) on hearings in domestic relations and custody cases. The language in the new paragraph was proposed by attorney Valeska Hermanson, who suggests that a party who submits affidavits in support of a motion relating to a divorce or custody matter should be required to make the affiant available for cross examination at the hearing. In a letter, which is attached, she outlines the reasons why it would be appropriate to impose such a requirement in divorce and custody matters.
The Committee delayed action on Hermanson's proposal to receive comment from the bar. Staff received only one comment. The comment, which was from David Boeck, is attached: it generally supports the proposal to amend Rule 3.2 as suggested.
In addition to the proposed addition of the new subdivision (b), the remaining subdivisions are re-lettered.
Amendments to subdivision (f) on the scope of the rule are also proposed. The subdivision would be divided into paragraphs. Paragraph (f)(1) would contain the existing language. Paragraph (f)(2) would include new language indicating that the rule applies to formal proceedings under the Uniform Probate Code.
Judge Schmalenberger suggested the probate addition to the rule at the January meeting and explained it in an email, which is attached. According to N.D.C.C. § 30.1-01-06, a formal proceeding under the UPC is any proceeding conducted before a judge with notice to interested parties. N.D.C.C. § 30.1-02-04 says that the Rules of Civil Procedure govern formal proceedings. Judge Schmalenberger explains in his email that formal proceedings get put on the hearing calendar, but that the parties and their attorneys often fail to show up.
Judge Geiger has also suggested that steps should be taken to establish that the rules apply to formal proceedings in probate. One problem he highlights is the lack of attention in probate matters to preparing written responses to petitions. Adding the proposed language stating that Rule 3.2 applies to formal probate proceedings should be enough to extend Rule 3.2's briefing requirements to these proceedings, but the Committee may also wish to add explanatory note language stating its specific intent.
Amendments have also been proposed to the explanatory note to explain the proposed changes discussed above. A copy of the rule, with proposed amendments, is attached.