MINUTES OF MEETING
Joint Procedure Committee
September 23-24, 1999
TABLE OF CONTENTS
Rule 3, N.D.R.Civ.P. - Commencement of Action 3
Ex Parte Request for Funding by an Indigent Defendant 3
Rule 502, N.D.R.Ev. - Lawyer-Client Privilege 6
1998 Amendments to the Federal Rules of Appellate Procedure 8
Rule 1, N.D.R.App.P. - Scope of Rules 8
Rule 2, N.D.R.App.P. - Suspension of Rules 9
Rule 2.1, N.D.R.App.P. - Mental Health Appeals Under Chapter 25-03.1, N.D.C.C 9
Rule 3, N.D.R.App.P. - Appeal as of Right--How Taken 10
Rule 4, N.D.R.App.P. - Appeal--When Taken 11
Venue in Criminal Cases 13
Venue in Civil Cases 16
Rule 7, N.D.R.App.P. - Bond for Costs on Appeal in Civil Cases 17
Rule 8, N.D.R.App.P. - Stay or Injunction Pending Appeal 18
Rule 9, N.D.R.App.P. - Release in Criminal Cases 18
Rule 46, N.D.R.Crim.P. - Release From Custody 19
Rule 10, N.D.R.App.P. - The Record on Appeal 19
Rule 6, N.D.R.Civ.P. - Time 21
CALL TO ORDER
The meeting was called to order at approximately 1:15 p.m., September 23, 1999, by Justice Dale V. Sandstrom, Chair.
Justice Dale V. Sandstrom
Honorable Donovan Foughty
Honorable M. Richard Geiger
Honorable Gail Hagerty (9/24/99 only)
Honorable Ronald L. Hilden
Honorable Maurice R. Hunke
Honorable Lawrence A. Leclerc
Honorable David W. Nelson
Honorable Kirk Smith
Mr. Michael R. Hoffman
Mr. John C. Kapsner
Professor Larry Kraft
Mr. Daniel S. Kuntz
Mr. Ronald H. McLean (9/24/99 only)
Ms. Patricia R. Monson
Ms. Sherry Mills Moore
Ms. Cathy Howe Schmitz
Honorable Mikal Simonson
Mr. Lynn Boughey
Mr. James T. Odegard
Mr. Gerhard Raedeke
The Committee was informed meetings are scheduled for; January 27-28, 2000; April 27-28, 2000; and September 28-29, 2000.
APPROVAL OF MINUTES (PAGES 1-19 OF THE AGENDA MATERIAL).
Ms. Schmitz MOVED to approve the minutes as submitted. Judge Leclerc seconded. The motion CARRIED.
RULE 3, N.D.R.Civ.P. - COMMENCEMENT OF ACTION (PAGES 20-65 OF THE AGENDA MATERIAL)
The Committee considered a request from Judge Christofferson to amend N.D.R.Civ.P. 3 to provide for commencement by filing a complaint instead of by service of a summons. Previously, at its April and September 1994 meeting, the Committee considered whether commencement should be by filing instead of service. At that time, the Committee received numerous letters in opposition to commencement by filing. The North Dakota Trial's Association and North Dakota Defense Lawyer's Association also opposed commencement by filing.
The Committee reviewed the reasons for preserving commencement by service which were given the last time the issue was considered. The Committee also reviewed amendments it had made in the interim providing for more judicial control of actions.
On page 25, for the purposes of discussion, Judge Smith MOVED to adopt the proposed amendment to Rule 3 providing for commencement by filing. Judge Leclerc seconded.
Judge members of the Committee spoke in favor of commencement by filing. They argued attorneys should be more accountable for their use of the court's name. They are using the court's name outside the awareness and management of the court. Judge members stated, abuses also occur in collection cases. The Committee concluded, it is futile to try and change Rule 3 because there is too much opposition from the bar.
The motion FAILED by a vote of 4 to 10.
EX PARTE REQUEST FOR FUNDING BY AN INDIGENT DEFENDANT (PAGES 66-116 OF THE AGENDA MATERIAL)
The Committee considered Justice Kapsner's request for review of the procedures for an indigent defendant to request funds for an adequate defense. Specifically, the Committee considered whether an indigent defendant should be allowed to request funds ex parte.
The Committee reviewed case law indicating an indigent defendant may be constitutionally entitled to request funds ex parte for expert or investigative assistance. The Committee also noted, without a rule amendment, a judge may violate N.D. Code Jud.
Conduct Canon 3(B)(7) which prohibits ex parte communications except as authorized by law.
Some judge members indicated they are doing indigent defense applications for funding ex parte, but are uncomfortable with the potential ethical ramifications. Committee members stated, defendants should not have to reveal their case to the prosecution to get funding.
On page 113, Mr. Hoffman MOVED to adopt the proposed amendment to Rule 44 which authorizes an indigent defendant to move ex parte for financial assistance. Ms. Schmitz seconded.
The Committee questioned the applicability of the amendment to a pro se indigent defendant. Committee members stated, it is important to allow a pro se defendant the opportunity to apply for the funding necessary for an adequate defense. A judge also needs to hear the reasons for the funding before authorizing the expenditure of state funds. What a pro se defendant thinks is a defense may not be a legitimate defense.
Members stated an independent indigent defense commission is needed, so applications do not have to be reviewed by judges. Others said, a different judge should hear the request for funding. The Committee, however, did not seem to think the suggestions were feasible alternatives.
Committee members questioned whether providing for an ex parte request will protect the confidentiality of the application. The prosecution could still get the record, because the proposal does not require the application to be under seal.
Judge members stated, currently, defense counsel will request funding by letter to the judge. Sometimes an affidavit is included with the letter. If more information is needed, the judge may call the defendant's attorney with questions. Generally, a judge does not want to know a lot of details about the case. The judge will respond by simply writing a letter authorizing the funding. The letter does not end up in the file.
Other members questioned how the issue could be preserved for appeal if the letter of application is not filed in the record. It was stated, the requests are seldom turned down. Also, if the defendant is going to appeal, the letter requesting funding can be made part of the record. Counsel can request that the letter be made part of the record at a later date.
Committee members stated, there should not be informal papers floating around a case. The papers should be part of the record, but under seal. Other judges stated, they treat the request as a motion under seal and as part of the record.
Committee members stated a request for funding should be by application and not by motion. A request should be called an application, so it can be done ex parte without the formalities of a motion. The Committee noted, N.D.R.Crim.P. 47 provides: "An application to the court for an order shall be made by motion . . . ."
Judge Leclerc MOVED to amend lines 14-16 on page 113 as follows:
"(b) Ex Parte
MotionApplication for Financial Assistance. An indigent defendant may moveapply ex parte for financial assistance to obtain investigative, expert, or other services necessary for an adequate defense."
Mr. Hoffman seconded. Members again questioned why the language should be changed from "Motion" to "Application"? Others responded an application may be made by letter and a judge can just mark "approved" or "disapproved" on the letter. The formalities of a motion and subsequent order are avoided. The motion CARRIED by a vote of 9 to 4.
Mr. Hoffman MOVED to amend the proposal as follows:
"An indigent defendant may apply ex parte, under seal, for financial assistance to obtain investigative, expert, or other services necessary for an adequate defense."
Committee members commented, the proposed amendment makes it sound like only the application is under seal. Everything relating to the ex parte application should be sealed.
Judge Nelson MOVED to substitute the following amendment:
"The application, hearing, and order may be sealed by the court."
Judge Smith seconded. Ms. Schmitz MOVED to substitute the following amendment:
"The record of the application may be sealed by the court."
Judge Leclerc seconded. Mr. Kapsner MOVED to substitute the following language:
"The application and any subsequent proceeding and order must be maintained in the record under seal."
Judge Smith seconded. Judge Geiger MOVED to substitute the following language:
"The application and any subsequent proceeding and order must be maintained in the record under seal, except upon further order of the court."
Judge Nelson seconded.
Committee members stated the additional language, "except upon further order of the court" gives a judge discretion to reveal the information to the public at a later date. An issue may come up at a later time for which the information needs to be disclosed. The court needs a way of opening the information to others if the need arises.
Judge Geiger's motion CARRIED by a vote of 9 to 3.
The Committee noted, the proposed amendment addresses the defendant's right to apply ex parte. The proposed amendment does not entitle a defendant to funding. Thus, the amendment does not need to be limited to an indigent defendant who is entitled to court appointed counsel.
Committee members argued the amendment is telling a defendant the record is under seal; but the record is really not under seal, because the court has discretion to disclose the information. In the Explanatory Note on lines 34-35, by unanimous agreement, the Committee decided to change the words "a motion" to the words "an application."
The motion to recommend the proposed changes to the Supreme Court CARRIED by a vote of 13 to 1.
RULE 502, N.D.R.Ev. - LAWYER-CLIENT PRIVILEGE (PAGES 117-138 OF THE AGENDA MATERIAL)
The Committee considered whether to amend N.D.R.Ev. 502 to follow the 1986 amendment to Unif.R.Evid. 502. Rule 502, N.D.R.Ev., is patterned after Unif.R.Evid. 502.
The Uniform Rule was amended in 1986 to get rid of the "control group" test for determining the scope of the attorney-client privilege. Under the "control group" test, the attorney-client privilege does not apply to communications by employees of the client who are not responsible for obtaining professional legal services or acting upon legal advice.
The U.S. Supreme Court rejected the "control group" test in Upjohn v. United States, 449 U.S. 383 (1981). The Supreme Court said one of the purposes of the attorney-client privilege is to ensure an attorney gets the information needed to give sound and informed advice. In the corporate context, it will frequently be employees beyond the control group who possess the information needed by the corporation's lawyers.
On page 130, the 1986 amendment to the Unif.R.Evid. expands who is a representative of the client for the purposes of the attorney-client privilege. Under the amended rule, a representative of the client includes: "(ii) any other person who, for the purpose of effectuating legal presentation for the client, makes or receives confidential communications while acting in the scope of employment for the client."
On pages 132-138, the proposal follows the 1986 amendment to the Unif.R.Evid. The only change is on line 27 the phrase is added "if the communication was made:" to set off the enumerations that follow as separate paragraphs.
Committee members stated the rule should be amended to allow attorneys to get the information needed to give sound and informed legal advice. The proposed amendment is not overly expansive; because in order for the communication to be privileged, the communication must be made for the purpose of effectuating legal representation. Mr. Kuntz MOVED to adopt the proposal. Ms. Schmitz seconded.
In the Explanatory Note on lines 82-89, Committee members commented the Explanatory Note repeats the amendment. Others stated explanatory notes are often amended to flag rule amendments, but after a few years repetitive material should be deleted.
The motion to amend Rule 502 CARRIED by a vote of 14 to 0.
1998 AMENDMENTS TO THE FEDERAL RULES OF APPELLATE PROCEDURE (PAGES 176-178 OF THE AGENDA MATERIAL)
Staff explained all 48 Federal Rules of Appellate Procedure were revised effective December 1, 1998. The changes are mainly stylistic. One of the stylistic changes is the new practice of setting off enumerated items as separate subparts. By having each item listed separately, a rule will act as a checklist and make the rule more user friendly. It will be easier for practitioners to check whether they are complying with each requirement of the rule.
Another change the federal drafters are making is to use bullets () to mark off separate enumerated items rather than identifying the enumerated items as paragraphs, subparagraphs, or clauses. The federal drafters use bullets to ease the reading of a list when no citation to any individual item is likely. The federal drafters also indicate dangling text is permissible after a list of bulleted items. Dangling text is not permissible following a paragraph or subparagraph.
Staff explained, the citation forms in the explanatory notes to the rules of appellate procedure are amended to confirm with the Blue Book and the North Dakota Supreme Court Citation Manual.
The chair stated, the rules of appellate procedure will be submitted to the court as package. At subsequent meetings, because rules may interrelate, the Committee will reconsider previously considered rules as necessary. The door needs to be left open for additional amendments. None of the rules should be considered a final action until the Committee is ready to submit the package to the Supreme Court.
RULE 1, N.D.R.App.P. - SCOPE OF RULES (PAGES 179-182 OF THE AGENDA MATERIAL)
On page 181, Ms. Schmitz MOVED to adopt Rule 1 as proposed. Judge Leclerc seconded.
Ms. Schmitz MOVED to amend her motion by using the more abbreviated language in subdivision (a) of the amended federal rule on page 180. Subdivision (a) would read as follows:
These rules govern procedure in
appeals tothe supreme court of North Dakota , and applications for writs or other relief which the supreme court or a justice thereof is competent to give.
The motion CARRIED.
By unanimous agreement, the Committee decided to eliminate lines 27-30 of the Explanatory Note as follows:
In taking the Federal Rules of Appellate Procedure as a model, it is contemplated that the federal practice and authority will apply to those rules which have substantially the same form as their federal counterpart.
There is ample case law indicating the Supreme Court looks to federal case law when the rules being interpreted are the same as North Dakota's rules.
The Committee questioned what governs the procedure in appeals to the North Dakota Court of Appeals. The Committee noted, N.D. Sup. Ct. Admin. R. 27(5) provides all proceedings in the court of appeals are governed by the North Dakota Rules of Appellate Procedure.
The motion to adopt Rule 1 CARRIED.
RULE 2, N.D.R.App.P. - SUSPENSION OF RULES (PAGES 183-185 OF THE AGENDA MATERIAL)
Staff explained the proposed revision is identical to the federal revision, and the substance of the revision is the same as the current rule.
Ms. Schmitz MOVED to adopt the proposed amendment. Ms. Monson seconded. The motion CARRIED.
RULE 2.1, N.D.R.App.P. - MENTAL HEALTH APPEALS UNDER CHAPTER 25-03.1, NORTH DAKOTA CENTURY CODE (PAGES 186-189 OF THE AGENDA MATERIAL)
Staff explained Rule 2.1 is not patterned after a federal rule. The proposed amendments are stylistic. In subdivision (b), the requirements for what a notice of appeal
must contain are broken into separate paragraphs. The amendment conforms the requirements for a notice of appeal under Rule 2.1 with the requirements in N.D.R.App.P. 3(c).
Judge Hunke MOVED to adopt the proposal. Judge Foughty seconded. The motion CARRIED.
RULE 3, N.D.R.App.P. - APPEAL AS OF RIGHT--HOW TAKEN (PAGES 190-198 OF THE AGENDA MATERIAL)
Staff pointed out two technical corrections which need to be made to the proposal. On line 11, the phrase "dismissal of" should be overstruck and substituted with the word "dismissing." On line 24, the words "Service of" should be overstruck and substituted with the word "Serving."
Judge Leclerc MOVED to adopt the proposed amendment with the technical corrections. Judge Hunke seconded.
The Committee noted, subdivision (d) is currently titled "Service," yet subdivision (d) only requires the clerk of the trial court to "mail or send" notice of the filing of a notice of appeal. The proposed amendment requires service. The proposed amendment also requires service to be done "promptly."
On line 40, the Committee questioned the provision providing: "Service is sufficient despite the death of a party or the party's counsel." It was noted, the current rule contains the same provision and the revised language is from the federal rule.
The motion to adopt Rule 3 CARRIED.
The Committee noted, in the Federal Rules of Appellate Procedure the phrase "clerk of the district court" has been changed to the phrase "district clerk." The Committee discussed what terminology should be used in the North Dakota Rules of Appellate Procedure. Members suggested using the phrase "district clerk" instead of "clerk of the trial court." Others stated, there are lots of district court clerks and the phrase "clerk of district court" specifies more precisely what is meant. Committee members stated the phrase should be "clerk of district court" rather than "clerk of the trial court," because the county courts have been abolished and appeals from municipal court are to the district court rather than the supreme court. See N.D.C.C. § 40-18-19.
RULE 4, N.D.R.App.P. - APPEAL--WHEN TAKEN (PAGES 199-216 ) THE AGENDA MATERIAL)
Staff gave an overview. Subdivision (a) concerns an appeal in a civil case and is broken into paragraphs like the federal rule. Paragraph (2) on lines 11-13 is new and provides:
A notice of appeal filed after the court announces a decision or order -- but before the entry of the judgment or order -- is treated as filed on the date of and after the entry.
The new provision is consistent with Zueger v. Carlson, 542 N.W.2d 92 (N.D. 1996) and is taken from the revised federal rule.
Paragraph (4) on line 17 concerns the effect of a post-judgment motion on a notice of appeal. The language is taken from the revised federal rule, except in subparagraph (A) on line 19 the word "full" is added to clarify a party has the full time to appeal as in North Dakota's current rule.
Subparagraph (B) on lines 29-38 explains a previously filed notice of appeal becomes effective when the order disposing of the last such remaining motion is entered. An amended notice of appeal must be filed to challenge an order disposing of a post- judgment motion. North Dakota's current rule does not explain the effect of a post-judgment motion on a notice of appeal.
Paragraph (5) on lines 52-61 concerns a motion for an extension of time. The proposal substitutes the language in the revised federal rule for the language currently in North Dakota's rule. The rule is amended to allow an extension of time for "good cause" in addition to excusable neglect. Another change allows an extension of 10 days to file a notice of appeal after the date when the order granting the extension of time is entered.
Subdivision (b) concerns an appeal in a criminal case and is also patterned after the federal rule. The proposed amendment breaks the subdivision into paragraphs and subparagraphs. On line 97, subparagraph (B) addresses the effect of a post-judgment on a notice of appeal previously filed. This is new language. The amendment provides the notice of appeal is effective without amendment.
On line 108, paragraph (4) concerns a motion for an extension of time. The amendment allows an extension for "good cause" as well as "excusable neglect." In addition, the word "finding" is used instead of "showing" because the rule authorizes the court to give an extension without a motion.
On line 112, paragraph (5) is new. It provides the trial court has jurisdiction to correct a sentence under N.D.R.Crim.P. 35(a) even if a notice of appeal is filed.
On lines 116-117, paragraph (6) defines entry of judgment. The proposal uses the terminology "register of criminal actions" rather than "criminal docket."
On lines 118-123, paragraph (c) provides the trial court may extend the time for appeal in a contempt case upon a "finding" instead of a "showing" and for "good cause" as well as "excusable neglect."
Judge Hunke MOVED to adopt the rule as proposed. Ms. Schmitz seconded.
The Committee discussed whether an extension of time to appeal should be granted for "good cause" as well as "excusable neglect." Committee members stated "good cause" may exist even if "excusable neglect" does not exist. For instance, if a flood prevents a notice of appeal from being filed, "good cause" exists for not filing even though there is not "excusable neglect."
On lines 4-5, where subdivision (a) addresses the time for appeal, Committee members questioned the use of the terminology "civil case." Concern was expressed, "special proceedings" should also be addressed. The Committee noted, N.D.C.C. § 28-27-01 provides for appeal to the Supreme Court in a "civil action or special proceeding." Formally, N.D.C.C. §§ 28-27-04 and 28-27-05 governed the time for appeal and the taking of an appeal. Those provisions have been superseded by Rules 3 and 4. The Committee stated actions are either civil or criminal. Special proceedings are a hybrid.
Judge Geiger MOVED to amend line 4 as follows: "Appeal in a Civil Case or Special Proceeding." Judge Geiger also MOVED to amend line 5 as follows: "In a civil case or special proceeding . . . ." Ms. Schmitz seconded.
The Committee noted, Rule 4 has been in effect since 1973 without referencing a "special proceeding." The Committee questioned what constitutes a "special proceeding." The Committee also questioned whether the word "case" encompasses a "special proceeding."
The Committee reviewed the provisions addressing the effect of a motion on a notice of appeal. Committee members stated the provisions address when the time for appeal starts to run, but the provisions do not address when a trial court is divested of jurisdiction. There is confusion as to when and what jurisdiction a North Dakota trial court losses when a notice of appeal is filed.
The Committee discussed lines 29-37 which govern the effect of a post-judgment motion on a notice of appeal in a civil case. The Committee questioned the effect of the proposed amendment on case law providing a party is limited to the issues raised on a motion for a new trial. The Committee questioned what happens if a notice of appeal is filed before the post-judgment motion and an amended notice of appeal is not filed. Is a party then not limited to the issues raised in the motion for a new trial?
Committee members expressed concern about making substantive procedural changes when the purpose of the proposal before the Committee is to revise the rule stylistically to follow the federal revision. Committee members stated, they would like staff research on the issues raised before making an amendment.
Judge Geiger MOVED to postpone consideration of Rule 4 until the next meeting so there could be further study of the substantive procedural changes. Ms. Schmitz seconded. The motion CARRIED.
The Committee recessed at approximately 4:00 p.m.
September 24, 1999 - Friday
The Committee reconvened at approximately 9:00 a.m.
VENUE IN CRIMINAL CASES (PAGES 139-162 OF THE AGENDA MATERIAL)
The Committee reviewed N.D.C.C. § 29-01-33 which was enacted during the 1997 legislative session. Under the statute, in criminal cases the decision whether to change the location of a proceeding or trial is in the complete discretion of the court. The statute does not specify or require any grounds for changing the location of a proceeding or trial.
The Committee reviewed the 1997 Report of the North Dakota Legislative Council Judiciary Committee.
The Committee noted, N.D.R.Crim.P. 18-21 already contain provisions governing the location of criminal proceedings. When N.D.R.Crim.P. 21 was adopted, it superseded N.D.C.C. § 29-15-01 which governed a change in location of trial. The Committee also noted, other jurisdictions have held venue is procedural and a proper subject for the court's rule making authority.
For the purposes of discussion, Judge Leclerc MOVED to adopt the proposed amendment to Rule 18 on page 147. Ms. Schmitz seconded. Mr. Kuntz MOVED to amend the proposed amendment as follows:
The initial appearance, arraignment, or other hearing or proceeding may take place outside the county of venue but within the judicial district where the offense was committed.
It was explained, N.D.C.C. § 27-05-22 prohibits a judge from acting outside the district. Judge Smith seconded.
Other Committee members explained, a county may contract for jail services outside the district. Some regional jail facilities serve more than one district. The proposed amendment could create a problem. Committee members stated, N.D.C.C. § 27-05-22 does not need to be addressed in Rule 18. The authority of a district court judge to act is a different question. The motion FAILED.
The Committee noted, the U.S. Const. amend. VI provides: "[t]he accused shall enjoy the right to a . . . trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law . . . ." Committee members stated, the proposal does not violate the Sixth Amendment because it is only addressing proceedings and not a trial.
Committee members stated, the North Dakota Supreme Court needs to address whether it is going to continue requiring every county to furnish courtroom facilities. Some counties only have a jury trial every three to four years. The concept of venue is really a very nebulous thing and has no consequence whatsoever. It would be constitutionally permissible to have a trial center in each judicial district and not in every county.
The proposed amendment to Rule 18 CARRIED by a two-thirds vote.
The Committee reviewed N.D.R.Crim.P. 21. Rule 21 allows a proceeding to be transferred to another county under certain circumstances. A case may be transferred if a
defendant cannot obtain a fair and impartial trial in the county where the action is pending or for the convenience of the parties and in the interest of justice.
The Committee considered two alternative proposals to amend Rule 21. The first alternative leaves the rule as it is and supersedes the new statute on venue. The second alternative allows the court to change the location of a trial as does N.D.C.C. § 29-01-33 (1997). However, if a party objects to a change in location of trial, the trial must be held where originally venued unless grounds for a change of venue are established. The second proposal also supersedes the statute.
Judge Leclerc MOVED to adopt the second alternative. Ms. Schmitz seconded.
The Committee noted, N.D.C.C. § 29-01-06 gives a defendant the right to an impartial jury in the county in which the offense is alleged to have been committed. Committee members stated, the statute does not conflict with Rule 21, because a judge will not move a trial if the defendant objects.
The Committee noted, on page 156, proposed new subdivision (c) refers to a "trial" rather than a "proceeding" as does the rest of Rule 21. Rule 18 will govern a change in location of a proceeding.
In the Explanatory Note, lines 58-59 are overstruck as follows:
Rule 21 contemplates that all transfers shall be made from one court to a corresponding court of the same grade and classification.
Judge Leclerc MOVED to remove the overstrikes even though the county courts have been abolished, because North Dakota still has municipal courts.
Judge Smith seconded. The motion CARRIED.
In the Explanatory Note, the Committee questioned whether lines 68-83 should be deleted as proposed. Members stated, the comments are helpful. Others stated, it is the practice of the Committee not to include discussions of case law in the explanatory notes. Case law annotations are in the Michie version of the rule book. If practitioners rely on case law citations in the explanatory note, they are likely to be misled because case law changes and explanatory notes become outdated.
On lines 67-68, by unanimous agreement, the Committee decided to eliminate the following language:"
on the ground of personal bias or prejudice".
The motion to adopt Alternative 2 on pages 156-162 CARRIED unanimously.
VENUE IN CIVIL CASES (PAGES 163-175 OF THE AGENDA MATERIAL)
During the 1997 legislative session, the Legislature enacted N.D.C.C. §§ 28-04-09 and 28-04-10. The new statutes address changing the location of a pretrial proceeding or a trial.
The first statute, N.D.C.C. § 28-04-09, allows the court to change the location of a pretrial proceeding. The statute does not require the parties to consent or require any particular grounds for a judge to change the location of a pretrial proceeding.
The second new statute, N.D.C.C. § 28-04-10, provides the court may change the lactation of a trial. The statute does not require any particular grounds for changing the location of a trial. However, if any party objects to the change in location of trial, the trial must be held where originally venued.
The Committee noted, N.D.C.C. § 28-04-07 already provides for a change in the location of a trial if the grounds specified are met. Committee members stated the new statute N.D.C.C. § 28-04-10 should be superseded and N.D.C.C. § 28-04-10 should continue to govern. Others stated, all the statutes should be superseded and a rule of procedure should be adopted governing venue.
Committee members stated, a comprehensive study is needed and for venue to be defined by rule. All the statutes defining the place of venue should be superseded. Others Committee members stated, they are not ready to go that far. Only a change in the location of a proceeding or trial should be addressed; not the original venue.
Judge Hunke MOVED to adopt the proposal on pages 170-172 which would supersede N.D.C.C. §§ 28-04-09 and 28-04-10. The amendment would allow the court to change the location of a pretrial proceeding. A change in location of trial would be governed by N.D.C.C. § 28-04-07. Judge Geiger seconded.
On page 170, the Committee stated proposed lines 16-18, governing a change in the place of a pretrial proceeding, should be in a separate subdivision. The Committee
recommended eliminating the following language on lines 12-16 which currently provides as follows:
All other acts or proceedings may be done or conducted by a judge in chambers, without the attendance of the clerk or other court officials
and at any place either within or without the district; but no hearing, other than one ex-parte, may be conducted outside the district without the consent of all parties affected thereby,
Judge Leclerc MOVED to refer the subject of venue in civil cases back to staff with an instruction to supersede all the statutes addressing a change in location, and for staff to draft a rule governing a change in location of a proceeding or trial. Mr. Kapsner seconded.
Committee members also stated the reference to a motion to suppress evidence should not be in N.D.C.C. § 28-04-09 as there are not motions to suppress evidence in civil cases.
RULE 7, N.D.R.App.P. - BOND FOR COSTS ON APPEAL IN CIVIL CASES (PAGES 217-221 OF THE AGENDA MATERIAL)
Staff explained Rule 7 is not patterned after the federal rules. The proposal is simply a stylistic revision.
Judge Geiger MOVED to adopt the proposal. Professor Kraft seconded. Committee members stated the word "thereof" should be eliminated on line 36.
Committee members stated Rule 7 should be eliminated. The rule creates a procedural exercise without significant purpose. Given the expense of an appeal, including attorney fees and everything else involved, the least of the burdens on the appellee is the payment of costs. The real concern is a stay of execution.
Mr. Kuntz offered a substitute motion. Mr. Kuntz MOVED to repeal Rule 7. Mr. Kapsner seconded. The motion to repeal Rule 7 CARRIED.
The Committee instructed that the title to Rule 7 should remain with a notation in brackets indicating the rule is repealed. The format should be similar to N.D.R.Crim.P. 42 which the Committee previously repealed.
The Committee noted, on page 221, lines 65-66 supersede a number of statutes. Even though Rule 7 is going to be repealed, Committee members stated, the Explanatory Note should still supersede the statutes. The Committee instructed staff to bring the explanatory note to Rule 7 back to the Committee for further consideration.
RULE 8, N.D.R.App.P. - STAY OR INJUNCTION PENDING APPEAL (PAGES 222-229 OF THE AGENDA MATERIAL)
The Committee considered whether N.D.R.App.P. 8 should be revised to track the 1998 revision to Fed.R.App.P. 8.
Ms. Schmitz MOVED to adopt the proposal with additional language on lines 88-89 indicating N.D.R.App.P. 7 is repealed. Judge Leclerc seconded.
The Committee considered whether it is necessary to state in the rule that a party must give notice of a motion. On line 50 and 62, members were indifferent as to whether the language requiring a motion to be noticed should remain in the rule.
RULE 9, N.D.R.App.P. - RELEASE IN CRIMINAL CASES (PAGES 230-235 OF THE AGENDA MATERIAL)
Judge Hunke MOVED to approve Rule 9 as proposed. Professor Kraft seconded.
On page 233, Committee members questioned the need for keeping the subdivision designations the same as the federal rule, because N.D.R.App.P. 9 does not follow Fed.R.App.P. 9. Judge Leclerc MOVED to delete line 4 as follows: "
(a) [Reserved for Future Use.]" He further MOVED to delete line 5 as follows: " (b) Release Pending Appeal From a Judgment of Conviction." Finally, Judge Leclerc MOVED to amend the proposed point headings on lines 6 and 12 as follows: " (1)(a) Motion to Trial Court" and " (2)(b) Motion to Supreme Court." The motion CARRIED.
Ms. Schmitz MOVED to delete lines 35-41 in the Explanatory Note to get rid of the case law discussion. Mr. Kapsner seconded. Committee members stated, they do not want case law discussion in the explanatory notes. The motion CARRIED.
Without objection, the Committee agreed to amend lines 26, 30 and 42 by replacing the reference to subdivision (b) with the phrase "This rule." The Committee also agreed to
replace the phrase "These subdivisions regulate" with the phrase "This rule regulates" on line 27.
The motion to approve Rule 9 CARRIED unanimously.
RULE 46, N.D.R.Crim.P. - RELEASE FROM CUSTODY (PAGES 236-241 OF THE AGENDA MATERIAL)
The Committee reviewed N.D.R.Crim.P. 46(d), because subdivision (d) is identical to N.D.R.App.P. 9. The purpose of the proposal is to keep N.D.R.Crim.P. 46 identical to N.D.R.App.P. 9. On page 237, Judge Hunke MOVED to approve Rule 46 as proposed; except, on line 35 of the Explanatory Note, the reference to subdivision (b) should be eliminated given the Committee's previous amendment to Rule 9.
On page 241, the Committee reviewed the list of statutes "considered" in the Explanatory Note. The Committee noted, some of the statutes listed as "considered" have since been repealed. Members stated, leaving the references to repealed statutes in the list of statutes considered has historical value.
Judge Hunke's motion CARRIED.
RULE 10, N.D.R.App.P. - THE RECORD ON APPEAL (PAGES 242-256 OF THE AGENDA MATERIAL)
Staff explained, the amendments to Rule 10 are all intended to be stylistic. Portions of the rule that follow the federal rule are amended to follow the 1998 federal revision. In addition, subdivisions are subdivided into paragraphs and subparagraphs according to the new federal format.
Judge Leclerc MOVED to adopt Rule 10 as proposed.
The Committee questioned the use of bullets and whether separate parts should be designated by a numeral or letter rather than a bullet. Members stated, the use of bullets on page 251, lines 95-100, and on page 255, lines 174-175 makes the rule easier to read. Otherwise, the rules will begin to resemble the federal tax code if every enumeration is designated by a numeral or letter.
On page 253, Committee members questioned why bullets were not used in subdivision (e). It is not likely someone would need to specifically reference any of the individual items. Members said, bullets should be cited the same way a run-on paragraph is cited. Citing the subdivision itself will be sufficient.
Judge Leclerc MOVED to amend subdivision (e) by using bullets instead of numerical designations. Judge Smith seconded. The motion CARRIED by a vote of 13 to 3.
Committee members stated, under the federal rule, the appellant is responsible for only ordering a transcript of the portions of the proceedings that the appellant considers necessary. The appellate court does not get the entire record or the entire transcript.
Currently, court reporters are preparing a transcript of all pretrial proceedings in addition to the trial. Committee members stated, an indigent defendant in a criminal case should not get a transcript of all the proceedings unless a need is demonstrated for the entire transcript. Indigent defendants should be required to specify what they want; otherwise, indigent defendants should only get a transcript of the trial.
Committee members stated, an attorney may not know what is needed until the attorney starts writing the appellate brief. An attorney may not realize something was not included in the transcript until it is too late. Attorneys have the obligation to supply the court with an appropriate transcript. Others stated in the criminal context, it would be rare for a defense attorney not to know the specific issues that are going to be appealed.
Committee members stated, the issue is what should be routinely transcribed for indigent defendants without a specific request for transcription of additional portions of the record. Civil cases are different, because the parties are paying for the transcript. They can order what they want. In indigent defense cases, the rule should provide what a defendant is going to get unless there is a request for something extra. Others said, court reporters still get paid for their work in preparing a transcript for an indigent defendant. Court reporters are paid a salary.
Committee members questioned what constitutes the record and what is required to be transcribed. There is confusion as to what is recorded and transcribed. Often voir dire, jury instructions, and closing and opening statements are not recorded and transcribed unless requested. The basic transcript is the evidence presented at trial.
Committee members stated, there are two issues involved. The first issue is what is recorded. The second issue is what should be transcribed. Currently, court reporters interpret
the requirement for a transcript in Rule 10 as requiring everything. If the appellant is not going to raise an issue regarding a pretrial proceeding, the Committee questioned why the pretrial proceeding should be transcribed. A definition of what constitutes the transcript on appeal is needed. The transcript on appeal should be defined as the evidence offered at trial unless there is a request for additional transcription.
On page 248, Committee members stated, staff should address the language on lines 33-34 regarding the appellant's duty to order a transcript. An appellant should have the duty to order only those portions of the transcript which are relevant to the issues appealed. The appellee should have the duty to order any additional portions that are needed.
Judge Leclerc MOVED to postpone consideration of Rule 10 until the next meeting. Ms. Schmitz seconded. The motion CARRIED unanimously. It was suggested comments should be obtained from the clerk of the supreme court.
RULE 6, N.D.R.Civ.P. - TIME (PAGES 290-300 OF THE AGENDA MATERIAL)
The Committee considered a request to extend the period of time from 7 days to 11 days when intermediate Saturdays, Sundays, and legal holidays are excluded from the time computation found in N.D.R.Civ.P. 6(a). Currently, Rule 6(a) provides:
When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays must be excluded in the computation.
The Committee noted Fed.R.Civ.P. 6 was amended, effective August 1, 1985 to change the period from 7 days to 11 days.
Mr. McLean MOVED to adopt the proposal on page 298. Ms. Monson seconded. Mr. Kapsner MOVED to substitute 15 days for 11 days.
Committee members argued against using 15 days instead of 11 days. First, generally, under N.D.R.Ct. 3.2, 10 days are allowed for responding to a motion. Extending the period to 15 days will accomplish little. Second, the time needed for processing motions will be extended for too long and delay will be caused. Finally, using a 15 day period will cause confusion between state and federal practice.
The Committee voted on the motion to substitute 11 days with 15 days. The motion FAILED by a vote of 14 to 2.
Committee members questioned the need for the amendment. Judges stated, they do not normally deny an extension and opposing counsel will generally grant an extension. Attorneys stated, they cannot risk sacrificing their client to the first judge who denies an extension. In addition, sometimes the judge will be gone and an extension can not be obtained. Also, if an attorney has to make a motion to the court to get an extension, the attorney is already out of luck. By the time the motion is decided, the attorney's deadline for responding to the motion has already passed.
The Committee voted on the main motion to extend the time from 7 to 11 days. The motion CARRIED by a vote of 14 to 1.
The Committee instructed staff to prepare amendments to the rules of criminal procedure and appellate procedure for the Committee's consideration at the next meeting which are consistent with the amendment to N.D.R.Civ.P. 6(a). The Committee also instructed staff to amend the Explanatory Note to Rule 3.2 to reflect the change in the time computation.
The meeting adjourned at 11:30 a.m.