MINUTES OF MEETING
Joint Procedure Committee
April 26-27, 2001
TABLE OF CONTENTS
2000 Annual Rules Package 2
Rule 82, N.D.R.Civ.P. - Jurisdiction and Venue Unaffected. 3
Rule 7, N.D.R.App.P. - Bond for Costs on Appeal in Civil Cases 3
Rule 4, N.D.R.App.P. - Appeal--When Taken; Rule 37, N.D.R.Crim.P. - Appeal as of Right to District Court; How Taken; and S.B. 2077 4
Rule 8.5, N.D.R.Ct. - Domestic Relations Summary Proceedings 6
Rule 32, N.D.R.App.P. - Form of Briefs, the Appendix and Other Papers 8
Rule 10, N.D.R.App.P. - The Record on Appeal; and Rule 31, N.D.R.App.P. - Filing and Service of Briefs 8
Rule 11, N.D.R.App.P. - Transmission and Filing of the Record 9
Rule 12, N.D.R.App.P. - Docketing the Appeal 10
Rule 13, N.D.R.App.P. - Sanctions 10
Rules 15-24, N.D.R.App.P. - Reserved for Future Use 10
Rule 25, N.D.R.App.P. - Filing and Service 10
CALL TO ORDER
The meeting was called to order at approximately 1:30 p.m., on April 26, 2001, by Justice Dale V. Sandstrom, Chair.
ATTENDANCE
Present:
Justice Dale V. Sandstrom
Honorable Bruce E. Bohlman
Honorable Donovan Foughty
Honorable M. Richard Geiger
Honorable Gail Hagerty
Honorable Ronald L. Hilden
Honorable Lawrence A. Leclerc
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Honorable David W. Nelson
Honorable Thomas J. Schneider
Honorable Mikal Simonson
Mr. Michael R. Hoffman (April 26, 2001 only)
Mr. John C. Kapsner
Mr. Daniel S. Kuntz
Mr. Ronald H. McLean
Ms. Sherry Mills Moore
Mr. Stephen W. Plambeck
Ms. Cathy Howe Schmitz
Mr. Michael G. Sturdevant
Absent:
Professor Larry Kraft
Mr. James T. Odegard
Staff:
Mr. Jim Harris
PRELIMINARY MATTERS
The chair reminded the Committee about the Inns of Court dinner at the Capitol on Thursday evening.
The Committee welcomed its newest members, Stephen Plambeck, Judge Thomas Schneider, and Judge Bruce Bohlman.
The Committee was given an update on the status of Gary Raedeke.
APPROVAL OF MINUTES (PAGES 1-14 OF THE AGENDA MATERIAL)
Ms. Schmitz MOVED to approve the minutes as submitted. Mr. Sturdevant seconded. The motion CARRIED.
2000 ANNUAL RULES PACKAGE (PAGES 15-28 OF THE AGENDA MATERIAL)
The Committee reviewed changes made by the Supreme Court to the 2000 Annual
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Rules Package. Staff informed the Committee the Supreme Court: (1) inserted language in the explanatory notes to N.D.R.Crim.P. 18 and 21 to state "In deciding to move a trial or proceeding, a trial court must consider N.D. Sup. Ct. Admin. R. 6(B) and 7(B)."; (2) changed language in N.D.R.Ct. 10.1(d) to state "Unless the Court permits otherwise, any wireless communication device in the courtroom must be turned off or muted."; and (3) changed N.D.R.Ev. 502(a)(2)(B) relating to the definition of representative of a client for purposes of a corporate client invoking the attorney-client privilege.
RULE 82, N.D.R.Civ.P. - JURISDICTION AND VENUE UNAFFECTED (PAGES 29-30 OF THE AGENDA MATERIAL)
Staff explained at the September 2000 meeting the Committee extensively discussed venue in civil actions or proceedings, and asked to see a proposed draft of N.D.R.Civ.P. 82 deleting the language about venue. Judge Geiger MOVED to recommend the proposed amendments to N.D.R.Civ.P. 82. Ms. Schmitz seconded. The motion CARRIED.
Later in the meeting, the Committee reconsidered its action on N.D.R.Civ.P. 82. Committee members indicated in some states personal jurisdiction is governed by statute, but in North Dakota personal jurisdiction is governed by N.D.R.Civ.P. 4. Committee members said the explanatory note statement that jurisdiction is governed by statute is inaccurate. Committee members said N.D.R.Civ.P. 82 conflicts with N.D.R.Civ.P. 4 and is not necessary. Mr. Kapsner MOVED to recommend repealing N.D.R.Civ.P. 82. Judge Leclerc seconded. Motion CARRIED.
RULE 7, N.D.R.App.P. - BOND FOR COSTS ON APPEAL IN CIVIL CASES (PAGES 31-36 OF THE AGENDA MATERIAL)
Staff explained the Committee had initially decided to recommend repealing N.D.R.App.P. 7, but at the last meeting it was indicated N.D.R.App.P. 7 serves a significant purpose for some litigious pro se litigants. The Committee directed staff to prepare a proposed draft of N.D.R.App.P. 7 which followed Fed.R.App.P. 7.
Mr. McLean MOVED to recommend the proposed amendment to N.D.R.App.P. 7 on pages 34-36. Judge Leclerc seconded.
Committee members suggested a rule requiring a cost bond generally is a waste of time, but in some circumstances it may be necessary. Members discussed the procedure for obtaining a cost bond under the proposed rule. The Committee considered whether the trial
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court automatically lost jurisdiction when a notice of appeal was filed and whether the proposed rule required a remand to the trial court for the limited purpose of securing a cost bond. Some Committee members expressed the view the purpose of the rule was to ensure payment of costs, and because costs were almost nothing, the rule was meaningless. Members indicated if the purpose of the rule was to preclude frivolous appeals, the Committee ought to look at mechanisms other than a cost bond. Some members suggested keeping the current version of N.D.R.App.P. 7.
The Committee discussed adding language to the proposed rule stating the trial court retains jurisdiction to rule on a cost bond after an appeal is filed. Mr. McLean MOVED to amend the proposed rule to add the following language at the end of line 20: "The district court retains jurisdiction for purposes of this rule." Judge Leclerc seconded. Some Committee members thought the proposed language should be in the explanatory note to keep the rule consistent with Fed.R.App.P. 7. Judge Geiger MOVED to add the phrase to the explanatory note. Mr. Kuntz seconded. Judge Geiger's substitute motion FAILED 5 to 10. Mr. Kapsner MOVED to substitute language on line 20 stating "A request for a bond must be made in the first instance in the district court." Mr. Sturdevant seconded. Mr. Kapsner's substitute motion CARRIED 9 to 4.
Ms. Schmitz moved to amend the explanatory note to add the phrase "The district court retains jurisdiction for purposes of this rule." Mr. Sturdevant seconded the motion. The motion CARRIED 9 to 4.
Action on the main motion to recommend the proposed amendments to N.D.R.App.P. 7 was DEFEATED 5 to 12.
Staff explained at the September 2000 meeting the Committee directed staff to: (1) add specific language to the explanatory note to N.D.R.App.P. 4 stating a party should file a notice of appeal with a motion for extension of time to appeal; (2) prepare a proposed amendment regarding the time for appeal in post-conviction proceedings; and (3) prepare proposed amendments to N.D.R.Crim.P. 37 which track the Committee's action on N.D.R.App.P. 3 and 4. Staff also informed the Committee the 2001 Legislature amended N.D.C.C. § 29-32.1-14 to authorize the Supreme Court to set the time for appeal in post-conviction proceedings, and the Court referred that issue to the Committee for immediate action.
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The Committee initially considered the proposed amendment to the current version of N.D.R.App.P. 4 on pages 58-62, dealing with appeals in post-conviction proceedings. Ms. Schmitz MOVED to recommend to the Supreme Court for immediate action the proposed amendment to N.D.R.App.P. 4 on pages 58-62. Ms. Moore seconded.
The Committee discussed whether the time for appeals should run from service of notice of entry of the judgment or from entry of the judgment. Some members suggested a post-conviction proceeding was a civil proceeding and should be consistent with the time for appeals in civil cases. Ms. Schmitz MOVED to amend lines 53-54 to read "A notice of appeal must be filed with the clerk of the trial court within 60 days of service of notice of entry of the judgment or order being appealed." Mr. Hoffman seconded. Motion CARRIED.
Committee members discussed whether the time for appeal should be 60 days or some other time. Judge Foughty MOVED to amend the time for appeal in line 54 from 60 days to 30 days. Judge Geiger seconded. The motion FAILED 7 to 10.
The main motion to recommend to the Supreme Court for immediate action the proposed amendment to N.D.R.App.P. 4 on pages 58-62 CARRIED unanimously.
Ms. Schmitz MOVED to recommend to the Supreme Court as part of the appellate rules package the proposed amendment to N.D.R.App.P. 4 on pages 41-48. Mr. McLean seconded.
Staff pointed out errors in line 14 changing the "on" to "of", in line 28 changing "4(a)(4)(A)" to "4(a)(3)(A)", in line 32 changing "4(a)(4)(A)" to "4(a)(3)(A)", in line 56 changing "4(a)(5)" to "4(a)(4)", and in line 78 changing the "withing" to "within."
The Committee discussed the 30 day time for appeal by a defendant in a criminal case. Some members indicated the time for appeal should be the same for both the state and the defendant. The Committee discussed whether "good cause" should be included in the provision for an extension of the time for appeal. Some members thought excusable neglect was sufficient to encompass good cause. It was pointed out the federal rule included the "good cause" language. Without objection, the Committee amended the proposed language on appeals in post-conviction proceedings, lines 123-128, and the explanatory note at line 155 for consistency with the Committee's action on the version of N.D.R.App.P. 4 which was submitted to the Supreme Court for immediate action Action on the motion to recommend to the Supreme Court as part of the appellate rules package the proposed amendments to N.D.R.App.P. 4 on pages 41-48 CARRIED unanimously.
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Staff provided an overview of the proposed amendments to N.D.R.Crim.P. 37. Staff indicated at the September 2000 meeting, the Committee recognized N.D.R.Crim.P. 37 included language similar to N.D.R.App.P. 3 and 4, and as part of the appellate rules package, the Committee asked staff to prepare corresponding amendments to N.D.R.Crim.P. 37.
Judge Simonson MOVED to recommend proposed N.D.R.Crim.P. 37 on pages 49-57. Ms. Schmitz seconded. Judge Simonson MOVED to amend lines 14, 30, and 31 to change "10 days" to "30 days." Judge Foughty seconded. Motion CARRIED.
Judge Bohlman MOVED to change references to "trial court" to "municipal court" and to change references to "appellate court" to "district court." Mr. Kapsner seconded. Motion CARRIED unanimously. The Committee consensus was for staff to draft changes to reflect the municipal court and district court change in the rule and the explanatory note.
The Committee discussed whether the prosecution could appeal from any orders in municipal court. Judge Leclerc MOVED to delete lines 21-23. Mr. McLean seconded. The motion FAILED 3 to 11.
A question was raised in line 21 about changing "the" to "its." It was pointed out that that language was taken from the parallel provision of N.D.R.App.P. 4. Without objection "its" was changed to "the."
Action on the main motion to recommend proposed N.D.R.Crim.P. 37 as part of the appellate rules package CARRIED unanimously.
The meeting recessed at approximately 4:30 p.m.
April 27, 2001 - Friday
The Committee reconvened at approximately 9:00 a.m.
RULE 8.5, N.D.R.Ct. - DOMESTIC RELATIONS SUMMARY PROCEEDINGS (PAGES 102-157 OF THE AGENDA MATERIAL)
Staff provided an overview of N.D.R.Ct. 8.5, explaining the current rule for domestic relations summary proceedings was an interim rule that was scheduled to expire on October
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1, 2001, and the Supreme Court referred the rule to the Committee for review.
Ms. Schmitz MOVED to recommend to the Supreme Court for immediate action the proposed amendment to N.D.R.Ct. 8.5 on pages 154-157. Mr. McLean seconded.
Judge Bohlman discussed his experience with the rule in Grand Forks. It was explained the rule would be optional, not mandatory. Judge Bohlman explained the forms were patterned after small claims court forms. Committee members indicated the rule should be a local option and not mandatory. Other members said if a rule is adopted for this procedure, every district should implement it. Mr McLean read a letter from a Fargo attorney which expressed concern with various aspects of the proposed rule, including the net assets trigger, and its application to child custody and mental health issues. Some members indicated they would like to see the rule extended for another year with the option to use the procedure in each judicial district. Committee members indicated it would be helpful to hear from litigants who used the summary process. Some members believed the rule would make the judge a mediator. Committee members questioned why referees could not be used in the process.
Judge Simonson MOVED to amend subdivision (h) to read "The presiding judge of each judicial district may designate one or more judges or referees who will use the proceeding." Judge Geiger seconded. Judge Leclerc MOVED to delete the word "referee." Judge Simonson seconded. Judge Leclerc's substitute motion FAILED 3 to 11. Committee members indicated it was important to learn the parties' reaction to the rule through some survey mechanism. Action on Judge Simonson's motion to add the language allowing the presiding judge of each judicial district to designate judges or referees from each district to use the proceeding CARRIED with two no votes.
Judge Leclerc MOVED to extend the period of implementation for the rule to March 1, 2003. Ms. Moore seconded. The motion CARRIED.
The Committee then considered possible amendments to other language in the proposed rule. The Committee discussed the threshold for application of the summary procedure. Mr. Kapsner MOVED to increase the threshold amount in line 9 to "twenty thousand dollars." Judge Nelson seconded. The motion CARRIED 12 to 3.
Mr. Kapsner MOVED to delete lines 8-10 regarding the threshold amount, and to renumber accordingly. Ms. Schmitz seconded. Some Committee members indicated application of the rule should not be wide open because issues could become more complex in cases involving greater net assets. The motion to delete lines 8-10 was DEFEATED 3 to 11.
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Without objection the numbers "14-06" in line 7 were removed because legislation in 2001 had repealed that chapter.
Ms. Schmitz MOVED to change "twenty thousand" in line 9 to "one hundred thousand." Mr. Kapsner seconded. The motion was DEFEATED 6 to 9.
Without objection the explanatory note was changed to read "Rule 8.5 was initially adopted, effective October 1, 1996, as a pilot project in two judicial districts. Subdivision (h) was amended, effective _________________, to permit the presiding judge of each judicial district to designate one or more judges or referees to use the proceeding." The motion to recommend N.D.R.Ct. 8.5 to the Supreme Court for immediate action CARRIED unanimously.
Judge Leclerc MOVED for the Committee chair to appoint a subcommittee or task force of Committee members and others to gather information from participants in domestic relations summary proceedings and to report back to the Committee by January 2002 so the Committee could further study the rule. Mr. McLean seconded. The motion CARRIED 10 to 4.
Staff explained the proposed amendment to N.D.R.App.P. 32 was a housekeeping change to correct a misplaced reference in the rule. Judge Hagerty MOVED to recommend to the Supreme Court for immediate action the proposed amendment to N.D.R.App.P. 32. Ms. Schmitz seconded. Motion CARRIED unanimously.
Staff explained, effective March 1, 2001, the Supreme Court adopted amendments to N.D.R.App.P. 10 and 31 regarding electronic transmission of transcripts and appellate briefs to the clerk of the supreme court, but the amendments and effective date for each rule were not noted in the explanatory note. The supreme court clerk also offered a technical amendment to N.D.R.App.P. 10 to reference N.D.R.App.P. 31(b)(2). A representative from the Supreme Court clerk's office also noted that, for consistency, the following phrase at the
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end of line 35 should be added "or electronically transmit the transcript to the clerk of the supreme court."
Mr. Sturdevant MOVED to recommend to the Supreme Court for immediate action the proposed amendments to N.D.R.App.P. 10 on pages 164-169 with the addition on line 35. Judge Simonson seconded. The motion CARRIED unanimously.
Judge Leclerc MOVED to recommend to the Supreme Court for immediate action the proposed amendment to N.D.R.App.P. 31 on pages 171-172. Ms. Schmitz seconded. Judge Geiger MOVED to amend line 26 by adding the phrase "authorized by the clerk of the supreme court." Judge Simonson seconded. The motion CARRIED with one no vote. Action on the main motion CARRIED unanimously.
Mr. McLean MOVED to recommend to the Supreme Court as part of the appellate rules package the proposed amendment to N.D.R.App.P. 10 on pages 173-183 with the phrase "or electronically transmit the transcript to the clerk of the supreme court" inserted in line 100. Mr. Kuntz seconded. The motion CARRIED unanimously.
RULE 11, N.D.R.App.P. - TRANSMISSION AND FILING OF THE RECORD (PAGES 63-74 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to N.D.R.Civ.P. 11. Ms. Schmitz MOVED to recommend proposed N.D.R.App.P. 11 on pages 68-74 as part of the appellate rules package. Mr. Sturdevant seconded.
A representative of the clerk of supreme court's office indicated language on lines 9-10 was confusing and was not necessary. Judge Geiger MOVED to strike the language in lines 9-11. Ms. Schmitz seconded. Motion CARRIED.
Committee members questioned the language about an appellant's duty to do what is necessary to enable the clerk to assemble and forward the record under N.D.R.App.P. 11(a)(2). Others indicated it was the appellant's duty to do what is necessary to make sure the record gets forwarded to the supreme court. Action on the motion to recommend adoption of N.D.R.App.P. 11 as part of the appellate rules package CARRIED unanimously.
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RULE 12, N.D.R.App.P. - DOCKETING THE APPEAL (PAGES 75-79 OF THE AGENDA MATERIAL)
Ms. Schmitz MOVED to recommend proposed N.D.R.App.P. 12 as part of the appellate rules package. Judge Hagerty seconded. Motion CARRIED.
RULE 13, N.D.R.App.P. - SANCTIONS (PAGES 80-81 OF THE AGENDA MATERIAL)
Ms. Schmitz MOVED to recommend proposed N.D.R.App.P. 13 as part of the appellate rules package. Seconded by Ms. Moore. Without objection the language "the person preparing the transcript" was inserted in line 9 in the explanatory note after the word "also" and the words "court reporters" were struck. The motion CARRIED.
RULES 15-24, N.D.R.App.P. - RESERVED FOR FUTURE USE (PAGES 82-86 OF THE AGENDA MATERIAL)
Ms. Schmitz MOVED to recommend proposed Rules 15-14 as part of the appellate rules package. Judge Geiger seconded. The motion CARRIED unanimously.
RULE 25, N.D.R.App.P. - FILING AND SERVICE (PAGES 87-95 OF THE AGENDA MATERIAL)
Ms. Schmitz MOVED to recommend proposed N.D.R.App.P. 25 as part of the appellate rules package. Judge Geiger seconded.
It was indicated that lines 23-25 pertaining to filing a motion with a supreme court justice may be inconsistent with the provision in the rule requiring papers to be filed with the supreme court clerk. Some members thought the language may be necessary for emergencies when the courthouse is not open. The Committee noted that N.D.R.App.P. 27(c) authorizes a single justice to entertain and grant or deny a request in certain instances. The motion CARRIED unanimously.
The meeting adjourned at approximately 11:30 a.m.
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Jim Harris