Joint Procedure Committee - January 29-30, 1998 Minutes

Joint Procedure Committee

MINUTES OF MEETING
Joint Procedure Committee
January 29-30, 1998

TABLE OF CONTENTS

Courtroom Oaths... 3
1. Oath for a Prospective Juror... 3
2. Oath for a Jury - Civil Case... 4
3. Oath for a Jury - Criminal Case... 5
4. Oath for a Witness... 5
5. Oath for a Deponent... 6
6. Oath for an Interpreter... 6
7. Oath for a Bailiff... 6
8. Oath for a Bailiff - To Conduct Jury to View Place... 6
9. Oath for a Bailiff - To Keep Jury During Adjournment... 7
10. Oath for a Bailiff - To Keep Jury After Cause Submitted... 7
11. Oath for a Grand Jury... 7
12. Oath for a Grand Jury Witness... 7
13. Oath for a Grand Jury Reporter... 8
14. Oath for a Grand Jury Bailiff... 8
15. Affirmation... 8
Proposed Rule Format... 9
Rule 32, N.D.R.Crim.P. - Sentence and Judgment... 10
Rule 43, N.D.R.Civ.P. - Evidence... 11
Rule 32.1, N.D.R.Crim.P. - Deferred Imposition of Sentence... 14
Delivery by Commercial Carrier... 17
Rule 4, N.D.R.Civ.P... 17
Rule 5, N.D.R.Civ.P... 18
Rule 6, N.D.R.Civ.P... 18
Rule 23, N.D.R.Civ.P... 18
Rule 30, N.D.R.Civ.P... 19
Rule 30.1, N.D.R.Civ.P... 19
Rule 31, N.D.R.Civ.P... 19
Rule 45, N.D.R.Civ.P... 19
Rule 17, N.D.R.Crim.P... 19
Rule 37, N.D.R.Crim.P... 20
Rule 45, N.D.R.Crim.P... 20

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Rule 46, N.D.R.Crim.P... 20
Rule 49, N.D.R.Crim.P... 21
Rule 3, N.D.R.App.P... 21
Rule 8, N.D.R.App.P... 21
Rule 25, N.D.R.App.P... 21
Rule 26, N.D.R.App.P... 21
Rule 36, N.D.R.App.P... 21
Rule 45, N.D.R.App.P... 22
Rule 3.1, N.D.R.O.C... 22
Rule 7.1, N.D.R.O.C... 22
Rule 11.2, N.D.R.O.C... 22
Future Business of the Joint Procedure Committee... 23

CALL TO ORDER

The meeting was called to order at approximately 1:00 p.m., January 29, 1998, by Justice Dale V. Sandstrom, Chair.

ATTENDANCE

Present:
Justice Dale V. Sandstrom
Honorable Wallace D. Berning
Honorable Gail Hagerty
Honorable Maurice R. Hunke
Honorable Lawrence A. Leclerc
Honorable Mikal Simonson
Honorable Kirk Smith
Mr. Lynn M. Boughey
Mr. John C. Kapsner
Professor Larry Kraft
Mr. Ronald H. McLean
Ms. Sherry Mills Moore
Mr. James T. Odegard

Absent:
Honorable Donovan Foughty
Honorable Ronald L. Hilden
Mr. Michael R. Hoffman
Ms. Patricia R. Monson
Ms. Cathy Howe Schmitz

Staff:
Mr. Gerhard Raedeke

PRELIMINARY MATTERS

Justice Sandstrom requested a moment of silence in remembrance of the Honorable James A. Wright.

APPROVAL OF MINUTES (PAGES 1-17 OF THE AGENDA MATERIAL)

Judge Hunke MOVED to approve the minutes from the September 25-26, 1997, meeting as submitted. Ms. Moore seconded. The motion unanimously CARRIED.

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COURTROOM OATHS (PAGES 18-107 OF THE AGENDA MATERIAL)

Staff gave an overview of the material on courtroom oaths. The Committee reviewed caselaw indicating jury nullification is not a protected right. See State v. Bjerkaas, 472 N.W.2d 615 (Wis. App. 1991). The Committee also noted Sections 29-21-03 and 29-21-04, N.D.C.C., provide the court is to decide all questions of law, and the jury is to receive the law as it is laid down by the court.

The Committee reviewed pages 24-68 which consists of letters, articles, and comments. The Committee recognized the potential impact the proposed oaths have on jury nullification. Some of the proposals extract a promise from the jury to obey the instructions of the court. The Committee also recognized the public's concern about maintaining the reference to God in the oaths.

The Committee decided to consider consolidating the various courtroom oaths into the proposed rule format on page 70. The oath would be contained in a North Dakota Rule of Court, so the rule would be applicable to both civil and criminal cases.

The Committee stated its intention for the oaths adopted to be mandatory. However, deviation would be allowed because the proposal on page 70 only requires the oath to be "substantially" in the form prescribed by the rule. Leeway is also intended as to the precise wording of an affirmation.

Justice Sandstrom indicated for each oath category, the first proposal would be the oath the Committee considers unless someone moved to substitute an alternative proposal.

1. Oath for a Prospective Juror.

The Committee reviewed the oaths for a prospective juror on pages 72 and 73. Judge Smith MOVED to substitute the oath from the Bench Book for US District Court Judges for the Committee's consideration on page 73. Mr. Kapsner seconded. Committee members commented they liked the solemnity of the King James type language. Other members stated modern English needs to be used. Otherwise people may not understand what they are saying when they take the oath.

The Committee noted the oath for a prospective juror is for the entire jury panel. Committee members questioned whether both an oath and an affirmation would have to be given to the panel in case some people objected to taking an oath. Committee members suggested adding the language "under the pains and penalties of perjury" to the oath, so a combined oath and affirmation could be

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given at the same time. The Committee was unable to come up with language which would allow the oath to contain a reference to God and still be applicable to those wanting to make an affirmation.

The Committee voted on Judge Smith's motion to substitute the oath contained in the Bench Book for US District Court Judges as the oath for a prospective jury. The motion FAILED.

Mr. Kuntz MOVED to substitute the words "solemnly swear" for the word "promise" in Judge Hagerty's proposal on page 72. The motion was seconded by Judge Smith. The phrase "solemnly swear" is more consistent with what people consider an oath. The motion CARRIED. The Committee also agreed to substitute the words "solemnly swear" for the word "promise" in all of the proposed oaths. The Committee felt the words "solemnly swear" impresses upon the person taking the oath, their obligation is something more than just a mere "promise."

The Committee questioned whether only questions asked as to a prospective juror's qualifications are required to be answered truthfully. A juror may decide the question does not relate to his or her qualifications as a juror and not answer truthfully. Others stated qualifying language is needed, because this is an oath for a prospective juror. Otherwise, the Committee was concerned the oath would become to generic.

The Committee agreed to adopt the proposed oath on page 72, with the language following: "Do you solemnly swear to truthfully answer the questions you are asked about your qualifications to be a juror? So help you God."

2. Oath for a Jury - Civil Case. The Committee considered Judge Hagerty's proposed oath for a jury in a civil case on page 74. Mr. Kapsner MOVED to amend the proposal as follows:

"Do you solemnly swear that you will listen to all the evidence in this case, follow the instructions given to you, to deliberate fairly and impartially and to reach a fair verdict? So help you God."

Mr. Odegard seconded. The motion unanimously CARRIED.

The question was raised whether a juror should be required to promise to reach a "fair verdict." The jury may not reach a verdict and reaching a fair verdict is dependent upon the other jurors. Judge Simonson MOVED to strike the word "fair" because the document is called a "verdict." The word verdict means truth. Mr. Odegard seconded. The motion FAILED.

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Judge Hagerty MOVED to change the words "listen to" to the word "consider." Ms. Moore seconded. The motion unanimously CARRIED.

The Committee agreed to the proposal as follows:

"Do you solemnly swear that you will consider all the evidence is this case, follow the instructions given to you, deliberate fairly and impartially and reach a fair verdict? So help you God."

3. Oath for a Jury - Criminal Case. The Committee considered Judge Hagerty's proposed oath for a jury in a criminal case on page 78. The Committee stated the jury oath is given to the entire jury rather than to one juror at a time. Judge Smith MOVED to amend the proposal as follows: "Do you, and each of you, solemnly swear . . . ." Mr. Kapsner seconded. The motion FAILED.

The Committee unanimously agreed the criminal oath should be the same as the civil oath and consolidated with the civil oath in the proposed rule format. The Committee also agreed Sections 29-17-12 and 29-17-14, N.D.C.C., should be superseded as shown on page 71.

4. Oath for a Witness. Mr. Boughey MOVED to substitute the alternative proposal on page 81 for the Committee's consideration. Judge Simonson seconded. The motion CARRIED. Mr. Kapsner MOVED to substitute the current oath on page 81 for the alternative proposal. Judge Leclerc seconded. The motion FAILED.

On page 81, Committee members stated the oath listed as the current oath is not the oath currently being given. Others stated, currently specific language is not required, and a variety of oaths are used.

Committee members spoke in favor of the alternative proposal. It contains language everyone is familiar with, and it is easier to give than the other proposals. In this instance, there is value in preserving tradition because everyone is familiar with the language.

The Committee agreed to inserting a question mark before the phrase "So help you God" and putting a period after the phrase "So help you God" in all the oaths approved by the Committee so the format will be the same. The consensus of the Committee was the alternative proposal on page 81 should be inserted into the proposed rule format on page 70.

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5. Oath for a Deponent. The Committee considered the proposed oath for a deponent on page 85. By unanimous consent, the Committee decided to take this category out of the proposed rule format. The oath for deponent should be the same as the oath for a witness.

6. Oath for an Interpreter. The Committee considered the proposed oath for an interpreter on page 86. The oath is intended to be in lieu of the statutory oath for an interpreter in Section 31-01-11, N.D.C.C.

Mr. Kuntz MOVED to amend the proposal as follows:

"Do you solemnly swear to justly, truly, and impartially act as an interpreter to the best of your ability ~~in the case now before the Court,~~ ? so So help you God?."

Mr. Odegard seconded. The motion unanimously CARRIED.

Judge Leclerc MOVED to amend the proposal as follows:

"Do you solemnly swear to justly, truly, and impartially act as an interpreter and make a true translation to the best of your ability? So help you God."

The purpose of the amendment is to achieve harmony with the language contained in Rule 604, N.D.R.Ev. Judge Simonson seconded. The motion CARRIED.

The Committee agreed to insert the proposal as amended into the proposed rule format on page 70.

7. Oath for a Bailiff. Judge Hagerty MOVED to substitute the alternative proposal on page 88 for the Committee's consideration. The motion was seconded by Ms. Moore. The motion unanimously CARRIED. The Committee moved on to consider the other oaths for a bailiff before deciding whether to include the proposal in the proposed rule format. The Committee was unsure whether all of the proposed oaths for a bailiff are needed.

8. Oath for a Bailiff -- To Conduct Jury to View Place. The Committee considered Judge Hagerty's proposed oath on page 90. The Committee thought the general oath for a bailiff is already sufficient. The general oath for a bailiff requires the bailiff to obey the orders of the court. The Committee concluded a specific

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oath for a bailiff conducting a jury to view a place was unnecessary and should not be included in the proposed rule format.

9. Oath for a Bailiff - To Keep Jury During Adjournment. On page 92, the Committee considered whether to include Judge Hagerty's proposal in the proposed rule format for courtroom oaths. By unanimous agreement, the Committee concluded the subject is already covered by the general oath for a bailiff.

10. Oath for a Bailiff - To Keep Jury After Cause Submitted. The Committee considered Judge Hagerty's proposal on page 94. Judges commented the bailiff is typically sworn only once during a trial, and it is generally just before the jury is taken out. The bailiff is an employee and really does not need an oath. A general oath for a bailiff used to be given at the beginning of the term of court, but is no longer needed. Bailiffs are employees and are required to do their jobs.

Committee members commented the oath has ceremonial value. The oath impresses upon the jury the obligation and restraints upon the bailiff.

Committee members stated only one oath is needed for a bailiff, rather than a specific oath for each duty of a bailiff. The bailiff is introduced at the beginning of the case and the duties of the bailiff are explained. Judge Simonson MOVED to eliminate the general bailiff oath at number 7, on page 88, and to adopt Judge Hagerty's proposed oath for a bailiff to keep the jury after the cause is submitted. The motion was seconded by Mr. Odegard and unanimously CARRIED.

11. Oath for a Grand Jury. The Committee considered the oath for a grand jury on page 96. For consistency with the other proposals, the Committee instructed the proposal should be amended as follows: "Do ~~each of~~ you solemnly swear . . . ." The Committee unanimously approved the proposed oath on page 96 and recommenced Section 29-10.1-12, N.D.C.C., be superseded.

12. Oath for a Grand Jury Witness. The Committee considered the proposed oath for a grand jury witness on page 99. The Committee suggested the oath should start with the witness oath previously approved by the Committee. The Committee questioned whether a witness can disclose something the witness knew before going into the grand jury room after the grand jury proceedings are over. Committee members said the intent is to prevent disclosure of the questions asked and information learned in the grand jury room. Judge Hunke MOVED to amend the proposal as follows:

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"Do you solemnly swear to tell the truth, the whole truth, and nothing but the truth, and you will keep secret all of the proceedings of the grand jury conducted in your presence? So help you God."

Mr. Odegard seconded. The Committee approved the proposal as amended.

13. Oath for a Grand Jury Reporter. The Committee considered the proposed oaths for a grand jury reporter on page 100. The Committee suggested getting rid of the language requiring the grand jury reporter to accurately record the evidence. The constitutional oath already requires grand jury reporters to discharge their duties to the best of their ability.

The Committee noted the oath for a grand jury reporter in the North Dakota District Court Bench Book contains the oath required by Article XI, § 4, N.D. Const. Committee members stated it is only necessary for the grand jury reporter to take the constitutional oath when taking their office. The constitutional oath does not need to be given each time there is a grand jury proceeding. The Committee stated, however, an additional oath is needed requiring secrecy. Judge Hunke MOVED the grand jury reporter oath contain the language following:

"Do you solemnly swear you will keep secret the testimony taken and evidence considered by the grand jury except as you may be required by law to disclose? So help you God."

Judge Hagerty seconded. The motion unanimously CARRIED.

Judge Simonson MOVED to amend the title to provide as follows: "Oath for a Grand Jury Reporter/Recorder." Mr. Kuntz seconded. The motion FAILED.

14. Oath for a Grand Jury Bailiff. By consensus, the Committee agreed to include the proposed oath on page 102 in the proposed rule format on page 70.

15. Affirmation. The Committee considered the proposed affirmation on page 103. Committee members stated a person should not have to be conscientiously opposed to taking an oath in order to take an affirmation. It is inappropriate to inquire why a person does not want to take an oath. The decision whether to take an oath or affirmation should be in the complete discretion of the

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person. The consensus of the Committee was to adopt the proposal as follows:

"A person ~~conscientiously opposed to taking an oath~~ must be allowed to make an affirmation instead of taking an oath, by substituting the word 'affirm' for the word 'swear' and substituting the phrase 'under the pains and penalties of perjury' for the phrase 'so help you God.'"

Committee members stated a person is subjected to the pains and penalties of perjury regardless whether they take an oath or an affirmation. The statute on perjury, Section 12.1-11-01, N.D.C.C., applies to statements made under oath or equivalent affirmation.

Committee members questioned whether the word "affirm" could be substituted for the word "swear" and still have the proposed oath read correctly. Others stated, the Committee should not get hung up on the precise wording a judge will use in an affirmation. The affirmation is rarely used. The intent of the Committee is the language of the affirmation only has to comply substantially with the affirmation on page 70.

The Committee reviewed Section 44-05-02, N.D.C.C., on page 103 and decided the statute should be superseded. The Committee agreed to include the proposed affirmation, as amended by the Committee, in the proposed rule format in subdivision (b) on page 70.

Proposed Rule Format.

The Committee reviewed the proposed rule format on page 70, and approved consolidation of the courtroom oaths into the proposed rule format as amended.

A Committee member suggested the potential jury pool should include jurors who believe in jury nullification. It is not fair to say a person cannot be a juror if they believe in jury nullification, and are therefore unwilling to take an oath or affirmation promising obedience to the instructions of the judge. The jury pool should include people with a full range of views. It was stated, the right place to tell jurors they are expected to obey the law is in the jury instructions.

The Committee disagreed. The law should not have to conform to a group who thinks themselves outside the law. The system should have the right to require all people who want to sit on a jury to have a willingness to follow the law. The current oath does not tell jurors what is expected of them. Jurors are

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expected to obey the law. The Committee stated nothing should be done to give strength to the argument of jury nullification.

Mr. Kapsner MOVED to remove the reference to God in the oaths. People should not have to make a choice between an oath or affirmation in front of their neighbors and friends, whereby they express a statement of their religious belief or lack of religious belief. It should not be a function of the state to get involved in religion.

The phrase "so help you God" should be removed from all the oaths and substituted with "under the pains and penalties of perjury." The phrase "under the pains and penalties of perjury" impresses upon people their obligation to tell the truth. The motion FAILED for lack of a second.

Mr. Kuntz MOVED to recommend adoption of the oaths by the Supreme Court as amended by the Committee and consolidated into the proposed rule format on page 70. Staff is to number the rule as the next North Dakota Rule of Court in Title 6. The motion was seconded by Judge Hunke. The motion CARRIED by a two-thirds vote.

RULE 32, N.D.R.Crim.P. - SENTENCE AND JUDGMENT (PAGES 108-143 OF THE AGENDA MATERIAL)

Staff explained the two alternative proposals in the material. Under Alternative 1 on page 122, the presentence investigation report and any addendum are confidential as to both the public and the parties except as disclosed in the discretion of the court. Under the alternative proposal on page 130, the presentence investigation report and addendum are confidential as to the public. However, the defendant is entitled to a copy of the presentence investigation report. The defendant is also entitled to a copy of any addendum unless the judge determines it contains harmful information.

Judge Hunke MOVED to adopt Alternative 1 on page 122 as proposed without the addition of alternative subparagraph (C) on page 126a. Mr. Odegard seconded.

Committee members questioned whether the defendant should have a right to the presentence investigation report in every case. The Committee noted, under the current rule, the defendant does not get the presentence investigation report in every case. Information is not disclosed to the defendant if it is potentially harmful.

The Committee questioned when the summary of information must be given to the defendant if the defendant is not given the presentence investigation report. The Committee was unsure whether

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the summary must be given 10 days before sentence is imposed as is required for the presentence investigation report.

The motion to adopt Alternative 1 as proposed, without alternative subparagraph (C) on page 126a, CARRIED by a vote of 10 to 4.

Judge Hunke MOVED the adoption of the Explanatory Note starting on page 139. Mr. Odegard seconded. The motion CARRIED.

RULE 43, N.D.R.Civ.P. - EVIDENCE (PAGES 144-152 OF THE AGENDA MATERIAL)

Staff explained the proposed amendment to Rule 43, N.D.R.Civ.P., is patterned after the 1996 federal amendment to Rule 43. The amendment allows testimony at trial from a witness who is unable to communicate orally, but who is able to communicate by other means such as through writing or sign language. The amendment also permits testimony by contemporaneous transmission from a different location for good cause shown in compelling circumstances.

As instructed by the Committee at the last meeting, additional language has been added requiring notice as soon as reasonably possible for testimony by non-oral means or by contemporaneous transmission. Language has also been added requiring the circumstances justifying contemporaneous transmission to be unexpected. Finally, language has been added addressing who is responsible for any additional expense incurred by presenting testimony by non-oral means or contemporaneous transmission.

For the purpose of discussion, Mr. Odegard MOVED to adopt the proposal. Judge Hunke seconded. Judges on the Committee stated, allowing testimony by non-oral means would be helpful when a witness cannot communicate orally. The non-oral testimony, however, should still be given in open court for confrontation and cross-examination reasons.

Committee members stated an amendment allowing testimony by non-oral means in open court is needed. Otherwise, judges may say they do not have the authority to allow testimony other than orally in open court.

The Committee reviewed comments submitted by Leonard Bucklin, suggesting the circumstances should not be required to be unexpected for contemporaneous transmission. Judge Simonson MOVED to amend Rule 43 on page 148 by deleting the words "and unexpected" on lines 10 and 11. Mr. Odegard seconded.

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Others disagreed and thought the circumstances should be unexpected. If the circumstances are expected, the parties should be able to take a deposition and contemporaneous transmission is not necessary. The federal comments indicate deposition testimony is preferable to testimony by contemporaneous transmission. The Committee concluded the requirement for unexpected circumstances should remain in the rule, so people do not come in at the last minute and ask to present testimony by contemporaneous transmission. Judge Simonson withdrew his motion.

The Committee stated a provision is needed allowing the parties to agree to contemporaneous transmission. The rule should not prevent the parties from agreeing to allow contemporaneous transmission. The Committee noted, the federal comments indicate: "Good cause and compelling circumstances may be established with relative ease if all parties agree that testimony should be presented by transmission."

Mr. Kuntz MOVED to amend lines 9-14 as follows:

"The court may, upon the agreement of the parties, or for good cause shown in compelling and unexpected circumstances, and upon appropriate safeguards, permit presentation of testimony in open court by contemporaneous transmission from a different location."

The motion was seconded and unanimously CARRIED.

The Committee next considered the Explanatory Note. The Committee thought the Explanatory Note was no longer accurate on lines 72-75 after the amendment allowing the parties to agree to contemporaneous transmission of testimony from a different location. Mr. McLean MOVED to amend the Explanatory Note starting on lines 72 as follows:

"However, the amendment is not intended to allow contemporaneous transmission based upon mere convenience for a witness as the requirement for 'good cause shown in compelling and unexpected circumstances' is not met. The parties may agree to such evidence, but trial court approval is necessary."

Mr. Odegard seconded. The Committee wanted to make it clear, the requirement for "good cause shown in compelling and unexpected circumstances" does not need to be met when the parties have agreed to contemporaneous transmission and the trial court approves. Mr. McLean's motion CARRIED.

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The Committee discussed whether the rule should address taxation of costs for testimony by non-oral means or contemporaneous transmission. The Committee noted, the statute on interpreters for deaf persons, Section 28-33-05, N.D.C.C., provides: "An interpreter appointed under this chapter must be compensated by the appointing authority at a reasonable rate determined by the authority, including travel expenses." The Committee also noted Section 28-26-06(2), N.D.C.C., provides "[t]he necessary expenses . . . of procuring evidence" may be taxed as part of the judgment. The Committee thought taxation is already adequately covered by statute, and agreed to eliminate the sentence on lines 16-18 on page 148.

The Committee recessed at approximately 5:00 p.m.

January 30, 1998 - Friday

The Committee reconvened at approximately 8:30 a.m.

The Committee questioned why the concept of testimony by "non-oral means" suddenly appears, on lines 14-16, as it has not been mentioned previously in the rule. It was explained, the deletion of the word "orally" on line 4 allows testimony of a witness to be given in open court by non-oral means. The Explanatory Note alerts the researcher to the significance of the deletion of the word "orally."

Mr. Boughey MOVED to amend the proposal on lines 14-16 as follows:

"Notice must be given to the other parties as soon as reasonably possible for such testimony ~~by non-oral means or contemporaneous transmission~~."

The Committee questioned whether notice is required for testimony by non-oral means in open court if the reference to testimony by non-oral means is eliminated on lines 14-16. The Committee thought notice should be required for both testimony by non-oral means and testimony by contemporaneous transmission from a different location. Advance notice is needed to make mechanical arrangements and to allow the other side to prepare for cross-examination by non-conventional means. Mr. Boughey's motion FAILED.

By consensus, on lines 14-16, the Committee agreed to the following amendment: "Notice must be given to the other parties as soon as reasonably possible for testimony by contemporaneous transmission or non-oral means ~~or contemporaneous transmission~~."

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Judge Hagerty MOVED to amend lines 3-6 as follows:

"In every trial, the testimony of witnesses must be taken orally or by non-oral means in open court, unless otherwise provided by statute or these rules."

Mr. Odegard seconded. The Committee felt the reference to testimony by non-oral means needed to be at the start of the rule to provide the context for the later reference to testimony by non-oral means. The motion CARRIED.

On page 149, the Committee considered whether subdivision (d) of Rule 43 is necessary in light of the new rule on courtroom oaths. Judge Hunke MOVED to delete subdivision (d) and to make subdivision (e) subdivision (d). Judge Simonson seconded. The motion CARRIED.

Ms. Moore MOVED to delete the word "oral" on line 43 to make subdivision (e) consistent with subdivision (a). The amendment clarifies the court may allow non-oral testimony in a hearing. Judge Hagerty seconded. The motion unanimously CARRIED.

The Committee voted on the motion to submit Rule 43 and the Explanatory Note to the Supreme Court for adoption as amended by the Committee. The motion unanimously CARRIED.

RULE 32.1, N.D.R.Crim.P. - DEFERRED IMPOSITION OF SENTENCE (PAGES 153-213 OF THE AGENDA MATERIAL)

The Committee discussed the procedures for processing deferred impositions of sentence in misdemeanor cases. The Committee noted the lack of uniformity and the disparity of treatment received by defendants depending on the county of venue.

Committee members stated, whether a defendant gets a dismissal should not depend upon the procedures utilized in the county of venue. Having a rule would also make it easier for attorneys to advise their clients as to what must be done to obtain a dismissal. Uniformity would be helpful.

On page 210, Mr. Boughey MOVED to recommend adoption of Alternative 4 to the Supreme Court. Judge Leclerc seconded. Under Alternative 4, the dismissal would be automatic, because the order deferring imposition of sentence would provide for dismissal upon expiration of probation.

Committee members said they support the proposal because it is the least burdensome alternative. Neither the clerk or the defendant would be required to do anything for dismissal to occur.

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Requiring the clerks to make motions on behalf of defendants would create too much work for the clerks. The clerks cannot be expected to keep track of the defendants and to notify them of their right to move for dismissal. It is also not very realistic to expect the defendants to move for dismissal. The defendant may no longer even live in the area. The proposal provides a fair way to get rid of deferred impositions with a minimal amount of pain to all concerned.

On lines 9-10, the Committee questioned when a court may "subsequently order otherwise." Committee members stated the court should be able to "order otherwise" until the case is dismissed. The phrase "subsequently order otherwise" is limited to the time period before dismissal. Committee members stated the court cannot "order otherwise" after the case is dismissed.

Judge Leclerc MOVED to amend the proposal as follows:

"An order deferring imposition of sentence for a misdeamenor must provide for withdrawal of the defendant's plea of guilty, or for the verdict of guilty to be set aside, the case to be dismissed, and the file to be sealed no sooner than 61 days after expiration or termination of probation, unless otherwise ordered by the court. ~~The court may subsequently order otherwise upon motion of the state's attorney if the conditions of probation are not fulfilled.~~"

Judge Hunke seconded. The motion unanimously CARRIED.

The Committee stated if a judge finds out about violations two months after the dismissal, the judge is prohibited from going back and undoing the dismissal.

Professor Kraft MOVED to amend the proposal by striking the phrase "no sooner than" on line 8. Mr. Odegard seconded. The motion unanimously CARRIED. The Committee stated, on the 61st day dismissal will be automatic. Nothing needs to be done for dismissal to occur.

Judges on the Committee noted, bad check cases under $100 are now charged as infractions. Judges may defer imposition of sentence in insufficient check cases which are infractions. Judge Hagerty MOVED to amend the proposal as follows:

"An order deferring imposition of sentence for an infraction or a misdemeanor must provide for . . . ."

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Mr. Kapsner seconded. The motion to amend CARRIED.

The Committee considered the language on lines 7-8 requiring the file to be sealed. On page 157, the Committee noted Section 12.1-32-07.2(2), N.D.C.C., does not use the language "to be sealed." Although, the statute does limit who may examine the records and papers. Judge Simonson MOVED to delete the phrase "and the file to be sealed" on lines 7 and 8. Judge Smith seconded. Other Committee members stated the language requiring the file to be sealed is necessary to prevent the case from being reported as a dismissal. Others said the effect and intent of the statute is for the file be sealed. Judge Simonson's motion FAILED.

The Committee noted, the proposal does not address whether a deferred imposition of sentence is to be entered as a judgment. A Committee member stated law enforcement officers want a conviction. They want to report a judgment and not an order. Others stated the issue is an administrative matter that does not need to be resolved by the Committee.

Committee members said, many clerks are not reporting deferred impositions of sentence as being closed. The Committee was not sure what the impact would be if deferred impositions of sentence were required to be entered as a judgment. Some clerks monitor the cases to determine whether fines are paid, if restitution is paid, and community service is completed.

Mr. Boughey MOVED to amend the Explanatory Note on line 27 by adding a new paragraph as follows:

"An order deferring imposition of sentence is not a judgment."

Mr. Kapsner seconded. The motion unanimously CARRIED.

The Committee questioned how felonies are handled. The response was felonies are monitored by a probation officer because supervised probation is ordered. The probation officer makes the motion for dismissal.

By consensus, the Committee agreed to add a comma after the word "withdrawn" on line 23 of the Explanatory Note. Mr. Boughey MOVED to delete the paragraph on lines 27-30. Mr. Kapsner seconded. Otherwise, the Committee was concerned the Explanatory Note is inconsistent with the rule, because under the rule dismissal occurs 61 days after expiration or termination of probation. See Section 12.1-32-07(7), N.D.C.C., which allows 60 days for a petition for revocation or probation to be issued. The motion unanimously CARRIED.

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The Committee voted on whether to recommend adoption of Rule 32.1 to the Supreme Court. The motion CARRIED with all in favor, except for one member abstaining from the vote.

The Committee considered Form 8 on page 212. Mr. Odegard MOVED to amend the form in accordance with the action previously taken in proposed Rule 32.1, as follows:

"IT IS FURTHER ORDERED, ~~no sooner than~~ 61 days after expiration or termination of probation, the guilty plea ~~must be~~ is withdrawn or the guilty verdict set aside, the case dismissed, and the file sealed under N.D.C.C. §§ 12.1-32-07.1 and 12.1-32-07.2, unless ~~subsequently ordered~~ otherwise ordered."

Judge Hagerty seconded. The motion unanimously CARRIED.

The Committee discussed whether the alternative language in the proposal, for the guilty plea to be withdrawn or the guilty verdict set aside, should be set out in brackets as alternatives. Committee members stated the alternative language should not be set out in brackets requiring a choice, because the form will be used in a large volume. Independent thinking should be minimized.

DELIVERY BY COMMERCIAL CARRIER (PAGES 214-218 OF THE AGENDA MATERIAL)

Staff explained, at the last meeting, the Committee reviewed amendments to Rule 25 and 26, Fed.R.App.P., which allow papers to be served and filed via third party commercial carrier. The Committee previously rejected the federal amendments. Instead, the Committee decided to consider amending all the rules of procedure to allow service and filing by commercial carrier. The Committee thought it would be confusing to only amend the rules of appellate procedure, but not the other rules of procedure.

The Committee considered the proposed amendment to Rule 4, N.D.R.Civ.P., on page 219. For purposes of discussion, Mr. Odegard MOVED the adoption of Rule 4 and the Explanatory Note as printed. Mr. Kuntz seconded.

Committee members stated in practice commercial delivery is frequently used for service under Rule 5, N.D.R.Civ.P. The rules should conform to practice. Committee members stated law firms will have an account with Federal Express, and once a month they will get a billing statement. The statement lists the services made, but does not provide signatures.

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Others stated, if a signed receipt is not provided, the service does not comply with Rule 4 service. Still others stated you can get a signature, but you have to call and ask for the signature after delivery is made. The signature will be faxed to you.

Members questioned the advantage of using a commercial carrier. One advantage is a commercial carrier will come to your office and pick up the delivery.

In subdivision (g) on page 220, the Committee questioned why the requirement for registered or certified mail in addition to the requirement for a return receipt. Elsewhere, the rule simply requires a return receipt. The requirement prohibits express mail with a return receipt.

The Committee noted the rule does not require restricted delivery.

A vote was called for upon the motion. Seven were in favor of the proposal, six were opposed. The motion CARRIED, but not by a two-thirds vote. Justice Sandstrom instructed, the proposal is to be considered again at the next meeting.

The Committee considered the proposed amendment to Rule 5, N.D.R.Civ.P., on page 230. Mr. Kuntz MOVED to adopt the proposal and the Explanatory Note as printed. Mr. Kapsner seconded. The motion unanimously CARRIED.

The Committee considered the proposed amendment to Rule 6, N.D.R.Civ.P., on page 233. Mr. McLean MOVED to adopt the proposed amendment and Explanatory Note as printed. Mr. Boughey seconded. The motion unanimously CARRIED.

The Committee raised the possibility documents may be received latter if they are served by commercial carrier rather than by mail, if the commercial carrier charges an extra fee for delivery on Saturday.

Judge Hunke MOVED to adopt all the proposed amendments allowing service via commercial carrier. The motion FAILED for lack of a second.

The Committee considered the proposed amendment to Rule 23, N.D.R.Civ.P., on page 235. For the purposes of discussion, Judge Leclerc MOVED to adopt the proposed rule and Explanatory Note as printed. Mr. Odegard seconded. The motion unanimously CARRIED.

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The proposal allows notice in a class action law suit via third party commercial carrier. It was suggested the amendment is wonderful for symmetry, but no one will use a commercial carrier when serving notice upon a class because it would be more expensive.

The Committee questioned the rational for referring to a commercial carrier as a "third-party commercial carrier" rather than just a "commercial carrier." It was explained, as amended, Rules 25 and 26, Fed.R.App.P., use the terminology "third-party" commercial carrier. In addition, under Rule 4, service must be made by a person "not a party to nor interested in the action." A law firm cannot be its own commercial carrier.

The Committee considered the proposed amendment to Rule 30, N.D.R.Civ.P., on page 240. For the purposes of discussion, Mr. McLean MOVED to adopt Rule 30 and the Explanatory Note as printed. The motion was seconded and unanimously CARRIED.

The Committee considered the proposed amendment to Rule 30.1, N.D.R.Civ.P., on page 242. The Committee noted depositions are commonly served by commercial carrier. The rule should conform to practice. Without objection, the Committee agreed to adding the phrase "third-party" before the phrase "commercial delivery" in Rules 30.1 and 31, for consistency.

Judge Leclerc MOVED to adopt the proposal with the addition of the phrase "third-party." Mr. Odegard seconded. The motion unanimously CARRIED.

The Committee considered the proposed amendment to Rule 31, N.D.R.Civ.P., on page 249. Mr. Kuntz MOVED to adopt the proposed rule and Explanatory note. Judge Smith seconded. The motion unanimously CARRIED.

The Committee considered the proposed amendment to Rule 45, N.D.R.Civ.P., on page 251. Mr. Odegard MOVED to recommend adoption of the proposal. The motion was seconded and unanimously CARRIED.

The Committee considered the proposed amendment to Rule 17, N.D.R.Crim.P., on page 254. For the purposes of discussion, Mr. Odegard MOVED to adopt Rule 17 and the Explanatory Note as printed. Ms. Moore seconded.

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The Committee questioned whether a subpoena in a criminal matter should be served by commercial carrier. Committee members questioned the reliability of service by commercial carrier. The Committee also questioned whether service would be complete upon deposit with the commercial carrier or upon delivery. The motion FAILED.

Committee members commented about Rule 17 being abused, especially in regard to medical doctors. Members stated the same protections provided for civil subpoenas are not provided for criminal subpoenas. Justice Sandstrom stated it would be helpful if someone would send a letter asking for Committee consideration. A request for Committee consideration should contain the actual proposal, rather than just stating a concept.

The Committee considered Rule 37, N.D.R.Crim.P., on page 262. Staff explained the proposal is intended to allow the clerk to send a copy of the notice via commercial carrier by deleting the words "mail" and "mailing" on line 8. Committee members expressed concern, the word "send" may be too broad and allow transmittal by e-mail.

The Committee decided the language of the proposal should be changed to expressly provide for "mail" and "third-party commercial carrier." Judge Simonson MOVED to adopt Rule 37 with the suggested change in language. Mr. Kuntz seconded. The motion CARRIED by a two-thirds vote.

The Committee considered the proposed amendment to Rule 45, N.D.R.Crim.P., on page 269. Judge Simonson MOVED to adopt the proposal and Explanatory Note. Judge Leclerc seconded. The motion CARRIED by a two-thirds vote.

The Committee considered the proposed amendment to Rule 46, N.D.R.Crim.P., on page 272. Mr. Kuntz MOVED to adopt the proposal. Mr. Odegard seconded. The Committee agreed to amend lines 20-24 as follows:

"The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail or send by third-party commercial carrier copies to the obligors at their respective last-known addresses."

As amended, the motion CARRIED by a two-thirds vote.

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The Committee considered the proposed amendment to Rule 49, N.D.R.Crim.P., on page 277. The Committee agreed to change the language on lines 4-8 as follows:

"Immediately upon entry of an order made on a written motion after arraignment, the clerk shall mail, or send by third-party commercial carrier, or otherwise serve on each party affected a notice of the entry and note the service in the docket."

Mr. Odegard MOVED to adopt the proposal with the change. Mr. Kuntz seconded. The motion CARRIED by a two-thirds vote.

The Committee considered the proposed amendment to Rule 3, N.D.R.App.P., on page 281. The Committee agreed to substitute the language "mail or send by third-party commercial carrier" for the word "send," on line 5. Judge Smith MOVED to adopt the proposal as amended. Judge Simonson seconded. The motion CARRIED by a two-thirds vote.

The Committee considered the proposed amendment to Rule 8, N.D.R.App.P., on page 284. The Committee agreed to substitute the phrase "mail or send by third-party commercial carrier" for the word "send." Mr. Odegard MOVED to adopt the proposal as amended. Judge Hunke seconded. The motion CARRIED by a two-thirds vote.

The Committee considered the proposed amendment to Rule 25, N.D.R.App.P., on page 287. Judge Hunke MOVED to adopt the proposal. Ms. Moore seconded. The motion CARRIED by a two-thirds vote.

The Committee considered the proposed amendment to Rule 26, N.D.R.App.P., on page 290. Mr. Odegard MOVED to adopt the proposal as printed. Judge Smith seconded. The motion unanimously CARRIED.

The Committee considered the proposed amendment to Rule 36, N.D.R.App.P., on page 292. Judge Hunke MOVED to adopt the proposal with the phrase "mail or send by third-party commercial carrier" substituted for the word "send." Judge Simonson seconded. The motion CARRIED by a two-thirds vote.

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The Committee considered the proposed amendment to Rule 45, N.D.R.App.P., on page 293. Judge Hunke MOVED to adopt the proposal as printed. Mr. Odegard seconded. The motion CARRIED by a two-thirds vote.

The Committee considered Rule 3.1, N.D.R.O.C., on page 295. Ms. Moore MOVED to adopt the proposal as printed. Mr. Odegard seconded.

Committee members questioned why the clerk must notify the parties of the file number by mail or third-party commercial carrier. It was suggested the clerk should be able to notify people as to the file number by phone or e-mail. Mr. Kuntz MOVED to amend lines 4-9 as follows:

"The clerk . . . shall assign a file number to the case and immediately notify~~, by mail or third-party commercial carrier,~~ the attorney of record . . . ."

The motion to amend was seconded by Judge Hunke and unanimously CARRIED. The Committee agreed to amend the explanatory note on lines 25-27 as follows:

"Subdivision (g) was amended, effective _____________ to allow notification ~~via commercial carrier as an alternative to mail~~ by means other than mail."

The motion to adopt Rule 3.1 unanimously CARRIED.

The Committee considered Rule 7.1, N.D.R.O.C., on page 297. Judge Hunke MOVED to adopt the proposal as printed. Mr. Odegard seconded. The motion unanimously CARRIED.

The Committee considered the proposed amendment to Rule 11.2, N.D.R.O.C., on page 299. Mr. Odegard MOVED to adopt the proposal with a comma added after the word "service" on line 7 and with the word "or" overstruck on line 7. Judge Smith seconded. The motion CARRIED by a two-thirds vote.

Committee members questioned whether "third-party commercial carrier" includes e-mail. For instance, is America On Line a "third-party commercial carrier?" The Committee stated "third-party commercial carrier" should be defined as not including e-mail. The Committee stated its intent not to allow documents to be sent via e-mail. The Committee instructed staff to draft a rule defining third-party commercial carrier as not including e-mail.

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The Committee stated the proposals approved at this meeting regarding service by commercial carrier should not be submitted to the Supreme court until after the Committee reviews the definition of commercial carrier.

FUTURE BUSINESS OF THE JOINT PROCEDURE COMMITTEE

The Committee briefly discussed topics it may consider in the future. The Committee questioned whether a rule should be drafted defining the documents the clerk should be required to file and include in the record. Some stated the issue is already adequately addressed by the clerk of courts manual. In any event, the record can always be supplemented. Others suggested it may be helpful to look at other states to determine how they define what should be included in the record.

It was suggested the subject of venue should be left alone because of the uncertainly as to what the Legislature is going to do regarding the number of judges. The Committee was informed the Chief Justice has asked the Committee to consider what rule changes will be necessary if the Legislature consolidates clerk of court offices.

The Committee was informed it may be getting a request for reciprocal discovery in criminal cases. Another potential item of future business concerns the time for appeal. Currently the rules are somewhat misleading; because unlike the rules, case law does not require notice of entry of judgment if there is actual knowledge of the entry. It was suggested the rule should be amended to conform to case law or the case law exception eliminated by rule. Another suggested possibility is to have the clerk of court serve notice of entry.

Justice Sandstrom stated when people ask for rule changes a draft of the proposal should be included with the request.

Committee members indicated they prefer splitting the meeting into two days rather than meeting for one full day.

Meeting adjourned at approximately 12:00 noon.

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Gerhard Raedeke