MINUTES OF MEETING
Joint Procedure Committee
September 28-29, 2000
TABLE OF CONTENTS
2000 Annual Rules Package 2
ADR Proposal Pending Before the Supreme Court 3
Change in Venue or Location of a Civil Proceeding 3
Petition for Adoption of Rule on Collections 7
Rule 2.2, N.D.R.Ct. - Facsimile Transmission 7
Rule 12, N.D.R.Civ.P. - Objection to Improper Venue 8
Petition to Amend N.D.R.Ct. 10.1 - Conduct in Court 9
Rule 42, N.D.R.App.P. - Mootness 9
Rule 8.2, N.D.R.Ct. - Interim Orders in Domestic Relation Cases 9
Rule 4, N.D.R.App.P. - Appeal--When Taken 10
Rule 7, N.D.R.App.P. - Bond for Costs on Appeal in Civil Cases 13
Rule 3.2, N.D.R.Ct. - Motion Practice 13
CALL TO ORDER
The meeting was called to order at approximately 1:00 p.m., on September 28, 2000, by Justice Dale V. Sandstrom, Chair.
ATTENDANCE
Present:
Justice Dale V. Sandstrom
Honorable Donovan Foughty
Honorable M. Richard Geiger
Honorable Gail Hagerty
Honorable Ronald L. Hilden
Honorable Maurice R. Hunke
Honorable Lawrence A. Leclerc
Honorable David W. Nelson
Honorable Mikal Simonson
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Honorable Kirk Smith
Mr. Michael R. Hoffman
Mr. John C. Kapsner
Professor Larry Kraft
Mr. Daniel S. Kuntz (September 28, 2000 only)
Mr. Ronald H. McLean
Ms. Sherry Mills Moore
Mr. James T. Odegard
Ms. Cathy Howe Schmitz
Mr. Michael G. Sturdevant
Absent:
Ms. Patricia R. Monson
Staff:
Mr. Jim Harris
PRELIMINARY MATTERS
The Committee was given an update on the status of Gary Raedeke.
Staff distributed handouts and comments received in response to the meeting materials and to the proposed rules pending before the Supreme Court.
APPROVAL OF MINUTES (PAGES 1-22 OF THE AGENDA MATERIAL)
Judge Nelson MOVED to approve the minutes as submitted. Judge Smith seconded. The motion CARRIED.
2000 ANNUAL RULES PACKAGE
The Committee was informed that Jim Harris would present the Committee's annual rules package to the Supreme Court at the October 10, 2000 hearing. Mr. Kuntz and Mr. Kapsner also indicated they would try to attend the hearing. The Committee reviewed a written comment about the proposed amendments to N.D.R.Ct. 10.1, regarding wireless communication devices. The Committee noted the written comment sought to modify proposed N.D.R.Ct. 10.1(d) to allow wireless communication devices to remain on in the
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courtroom if the device uses vibration or visible means of signaling a message or call. The
consensus of the Committee was that the comment was adequately addressed in the "unless the court permits otherwise" language of proposed N.D.R.Ct. 10.1(d), and that language gave the court sufficient discretion to allow those types of devices.
ADR PROPOSAL PENDING BEFORE THE SUPREME COURT (PAGES 23-39 OF THE AGENDA MATERIAL)
The Committee discussed the ADR proposal currently pending before the Supreme Court.
CHANGE IN VENUE OR LOCATION OF A CIVIL PROCEEDING (PAGES 40-66 OF THE AGENDA MATERIAL)
At the September 1999 meeting, the Committee directed staff to draft a rule governing a change in venue or in location of a hearing or trial and superseding appropriate statutes. At the January 2000 meeting, the Committee considered proposed N.D.R.Civ.P. 37.1, and after making several changes, directed staff to prepare a clean copy and alternatives for consideration. The Committee considered three alternative drafts of proposed N.D.R.Civ.P. 37.1. Staff explained the first alternative incorporated changes made by the Committee at the January 2000 meeting, and the second and third alternatives included the substance of those changes in different formats. Staff explained the agenda materials also included a proposed amendment to N.D.R.Civ.P. 77. Staff also called the Committee's attention to N.D.R.Civ.P. 82, N.D. Sup. Ct. Admin. R. 6, and State v. Entzi, 2000 ND 148, which all deal with venue, or location of hearings or trials.
Judge Hunke MOVED to adopt alternative three to N.D.R.Civ.P. 37.1 on pages 61-63 of the agenda materials. Ms. Schmitz seconded.
Committee members said the effect of the proposed rule would be to centralize judicial services in the larger cities in North Dakota. Others said the proposed rule provides legitimate guidelines for moving a hearing or trial and said judges should be allowed to move those proceedings as long as there are reasons documenting the move. Committee members expressed a desire to authorize courts to move the place of a hearing or trial outside a judicial district without actually changing venue, which requires assignment of a different judge to the case.
Judge Simonson MOVED to delete lines 21-36 on pages 61-62. Judge Smith seconded.
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Committee members said that deletion would eliminate language authorizing a change of venue, and indicated a preference to retain language authorizing a change of venue.
Mr. Kapsner made a substitute motion to consolidate subdivisions (a) and (b) to read:
"(a) Change of Venue or Location of a Hearing, Proceeding, or Trial. (1) The court may change the venue or location of a hearing, proceeding, or trial to a different county if:
(A) that county's seat is less than ten miles from the seat of the county of venue;
(B) there is reason to believe an impartial trial cannot be obtained in the county of venue;
(C) considering such factors as the parties' and witnesses' convenience, judicial efficiency, and availability of appropriate facilities, the administration of justice is better served;
(D) the county designated in the complaint is not the proper county of venue;
(E) there is reason to believe an impartial trial cannot be obtained in the county of venue;
(F) the convenience of witnesses and the ends of justice will be promoted by the change; or
(G) there appears to be an insufficient number of jury cases for trial in the county of venue to warrant the expense of summoning a jury panel.
(2) If the location of a hearing, proceeding, or trial is changed, the parties shall continue to file with the clerk of court for the county of venue, and the judge originally assigned shall continue to preside over the action. In the case of a jury trial, the jury panel must be composed of residents of the original county of venue or residents of the judicial district as provided by N.D.C.C. § 27-09.1-05.1.
(3) If venue is changed, the file must be transferred to the new county of venue and any additional papers must be filed in the new county of venue. If venue is changed to a county in a different judicial district, a new judge must be assigned to the action. In the case of a jury trial, the jury panel must be composed of residents of the new county of venue or residents of the judicial district as provided by N.D.C.C. § 27-09.1-05.1."
Mr. Odegard seconded the substitute motion.
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Committee members indicated subdivisions (a)(1)(C) and (F) of the substitute amendment were duplicitous and could be consolidated into one provision. Committee members noted the difference between venue and change in location and said the substitute motion merged those concepts into one subdivision. They said they preferred not to blur the distinction between changing location and changing venue.
Mr. Kapsner's substitute motion FAILED by a vote of 8 to 10.
Discussion about the motion to delete lines 21-36. Committee members indicated the Committee should recommend a rule for change of venue. The motion to delete lines 21-36 was DEFEATED by a vote of 4 to 14.
Judge Hagerty MOVED to strike lines 30 and 31 on page 62, and to move the "or" in line 29 to line 27. Judge Smith seconded. Motion CARRIED.
Judge Leclerc MOVED to strike lines 26-29 on page 62. Judge Simonson seconded. Some Committee members said the language should stay in the subdivision for change of venue to insure obtaining a new jury pool when venue is changed. The motion FAILED.
Ms. Kapsner MOVED that language equivalent to lines 26 and 27 on page 62 be added as subdivision (a)(1)(D) after line 15 on page 61. Ms. Schmitz seconded. Mr. Kapsner accepted the following substitute motion: strike lines 12 and 13 and replace with: "(B) there is reason to believe an impartial trial cannot be obtained in the county of venue;"and amend lines 14 and 15 to read "(c) considering such factors as the parties and witnesses' convenience, judicial efficiency, and availability of appropriate facilities, the administration of justice is better served."
The motion CARRIED by a vote of 13 to 4. Without objection an apostrophe was added to the word "parties" in line 14.
Judge Leclerc MOVED to strike the phrase "within a judicial district" in line 9 on page 61. Mr. Kuntz seconded.
Committee members questioned whether district court judges had authority to act outside their judicial district. Questions were raised about whether the proposed amendment conformed with N.D.C.C. § 27-05-22, which requires district judges to act only within the district in which they are elected.
Judge Smith MOVED for a substitute amendment to leave the phrase "within a judicial district" in line 9 and, after the word "district", insert "or outside the district with
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the consent of the presiding judge of the district." The motion FAILED for a lack of a second.
Some Committee members said the proposed amendment would not violate N.D.C.C. § 27-05-22, because the action would still be venued in the appropriate county but a hearing or trial could be held in another county outside the judicial district. The motion to strike the words "within a judicial district" in line 9 on page 61 CARRIED.
The Committee took an afternoon break and honored Judge Smith with a plaque and cake for his service to the Joint Procedure Committee from 1967 through 2000.
Judge Leclerc MOVED to delete the following sentence beginning in line 18 on page 61: "In the case of a jury trial, the jury panel must be composed of residents of the original county of venue or residents of the judicial district as provided by N.D.C.C. § 27-09.1-05.1." Mr. Odegard seconded.
Committee members expressed a preference for keeping that language, because it requires the jury to be composed of residents of the original county of venue, or of the judicial district as provided by N.D.C.C. § 27-09.1-05.1. The motion was DEFEATED.
It was the consensus of the Committee to cross-reference N.D. Sup. Ct. Admin. R. 6 in the explanatory note to N.D.R.Civ.P. 37.1. The action on the main motion to recommend the Supreme Court adopt alternative 3 on pages 61-63, as amended by the Committee, CARRIED unanimously.
It was the consensus of the Committee that staff draft a proposed amendment to N.D.R.Civ.P. 82, deleting language pertaining to venue, for the Committee to consider at the next meeting.
Judge Leclerc MOVED to adopt proposed N.D.R.Civ.P. 77 on pages 65-66 of the agenda materials. Judge Hunke seconded.
Judge Hunke MOVED to delete the words "in chambers" on line 11 and substitute the word "elsewhere". Judge Smith seconded.
Some Committee members suggested removing the entire sentence beginning with "All other acts . . . " in line 10 on page 65. Other members said that sentence recognized the court's authority to conduct proceedings elsewhere. The motion to substitute "elsewhere" for "in chambers" CARRIED.
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Mr. Sturdevant MOVED to amend the heading in subdivision (b), line 8 on page 65, to state "Trials, Hearings, and Other Acts." Judge Simonson seconded. Motion CARRIED.
Judge Simonson MOVED to delete the word "regular" in line 9. Judge Nelson seconded. Motion CARRIED.
Judge Hagerty MOVED to delete subdivision (a), lines 4-7 on page 65. Mr. Kuntz seconded.
Committee members pointed out that N.D. Const. Art. I, § 9, provides all courts shall be open. Committee members stated they liked subdivision (a) and wanted to keep the courts open consistent with the constitutional provision. Other Committee members said N.D.R.Crim.P. 56 is essentially the same as subdivision (a). The motion to delete subdivision (a) was DEFEATED by a vote of 4 to 12.
The motion to recommend to the Supreme Court the adoption of proposed N.D.R.Civ.P. 77 on pages 65-66, as amended by the Committee, CARRIED by a vote of 15 to 3.
PETITION FOR ADOPTION OF RULE ON COLLECTIONS (PAGES 67-86 OF THE AGENDA MATERIAL)
At the January 2000 meeting, the Committee directed staff to draft reasons supporting the Committee's recommendation that a proposed collection rule not be adopted.
Ms. Schmitz MOVED to adopt page 68 of the agenda materials as the Committee's recommendation that a rule on collections not be adopted. Mr. Odegard seconded. The motion CARRIED unanimously.
RULE 2.2, N.D.R.Ct. - FACSIMILE TRANSMISSION (PAGES 87-124 OF THE AGENDA MATERIAL)
The Committee considered a request to amend N.D.R.Ct. 2.2 to clarify whether the $5 fee required for facsimile filing is per document or per transmission.
Judge Hunke MOVED to adopt the proposed N.D.R.Ct. 2.2 on pages 123-124 of the agenda materials. Mr. Sturdevant seconded.
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Some Committee members questioned the need for a $5 fee, stating that fee was a bigger administrative hassle than any type of revenue it generated.
Mr. Kuntz MOVED to amend lines 10-13 on page 123 to read as follows: "Within 5 days after the clerk of court has received the transmission, the party filing by facsimile transmission shall forward the filing fee, if any to the clerk of the court." Ms. Moore seconded the motion.
Without objection, the Committee changed the explanatory note on page 124, lines 28-29 to read: "Rule 2.2 was amended, effective ____________________, to delete the facsimile transmission fee." The motion to recommend N.D.R.Ct. 2.2 on pages 123-24, as amended by the Committee, CARRIED unanimously.
Judge Simonson MOVED to direct staff to study and prepare a proposal for e-mail filing of documents. Judge Geiger seconded.
Committee members said the Committee also may have to consider discovery rules and electronic storage of documents. Others members noted that e-mail filing also involves authenticity of signatures. The motion to direct staff to study e-mail filing CARRIED.
RULE 12, N.D.R.Civ.P. - OBJECTION TO IMPROPER VENUE (PAGES 255-263 OF THE AGENDA MATERIAL)
The Committee reviewed a request to amend N.D.R.Civ.P. 12 to include a time limitation for an objection to improper venue. The Committee noted that 1997 legislation repealed N.D.C.C. § 28-04-06, which dealt with the time for objecting to improper venue, and the Legislature did not re-enact any similar time limitations for a defendant to object to improper venue.
Ms. Schmitz MOVED to adopt the proposed N.D.R.Civ.P. 12 on pages 258-263 of the agenda materials. Judge Geiger seconded. Without objection, roman numeral (v) in line 31 was changed to roman numeral (vi).
Committee members generally discussed when objections to subject matter jurisdiction and personal jurisdiction must be raised.
The motion to recommend the Supreme Court adopt N.D.R.Civ.P. 12 on pages 258-63, as amended by the Committee, CARRIED unanimously.
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PETITION TO AMEND N.D.R.Ct. 10.1 - CONDUCT IN COURT (PAGES 264-275 OF THE AGENDA MATERIAL)
The Committee considered a petition to amend N.D.R.Ct. 10.1 regarding conduct in the court. Judge Nelson MOVED the Committee recommend the Supreme Court not adopt the petition to amend N.D.R.Ct. 10.1. Mr. McLean seconded.
Committee members stated the issues raised in the petition were adequately addressed by the version of N.D.R.Ct. 10.1 currently pending before the Supreme Court in the Committee's annual rules package. Committee members said no other changes to N.D.R.Ct. 10.1 were necessary. The motion CARRIED unanimously.
RULE 42, N.D.R.App.P. - MOOTNESS (PAGES 276-282 OF THE AGENDA MATERIAL)
The Committee reviewed a request to amend N.D.R.App.P. 42(c), regarding a parties' obligation to advise the Supreme Court when an issue may have become moot. Judge Smith MOVED to adopt the proposed rule on pages 281-282 of the agenda materials. Mr. Odegard seconded the motion. The motion CARRIED unanimously.
The Committee recessed at approximately 4:00 p.m.
September 29, 2000 - Friday
The Committee reconvened at approximately 9:00 a.m.
The Committee considered a request to amend N.D.R.Ct. 8.2 to require interim child support orders to state child support should be paid to and through the State Disbursement Unit, rather than the clerk of district court. Additionally, the Committee also considered an e-mail from a representative of the State Disbursement Unit, which stated child support is defined in N.D.C.C. § 14-09-09.10(2) to mean "payments for the support of children and combined payments for the support of children and spouses or former spouses." In view of that comment, the Committee agreed to change lines 59-60 on page 292 of the agenda
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materials to state "for any child support payment, or combined payment of child support and
spousal support, to be paid to and through the State Disbursement Unit."
Judge Geiger MOVED to adopt the proposed amendment on pages 289-294 of the agenda materials. Judge Foughty seconded.
Mr. Kapsner MOVED to strike the address in line 93 on page 294 and put a period after the word "Unit." Mr. Kraft seconded. The motion to amend CARRIED.
The action on the main motion CARRIED. Ms. Schmitz MOVED to send the Committee's recommendation to the Supreme Court immediately. Ms. Moore seconded. The motion CARRIED.
RULE 4, N.D.R.App.P. - APPEAL--WHEN TAKEN (PAGES 125-155 OF THE AGENDA MATERIAL)
At the January 2000 meeting, the Committee approved amendments to N.D.R.App.P. 4 in response to 1998 amendments to F.R.App.P. 4. The Committee made extensive changes to a proposed draft of N.D.R.App.P. 4 and asked to see a clean version of those changes. Staff noted alternative 1 on pages 141-48 of the agenda materials included the changes made by the Committee at the January meeting, and the second alternative on pages 149-160 included additional changes. Staff also outlined the remaining agenda materials regarding N.D.R.App.P. 4. Colette Bruggman of the North Dakota Supreme Court Clerk's Office appeared and outlined concerns by the clerk's office with language in proposed N.D.R.App.P. 4.
Committee members indicated the Committee should get input from the clerk of the Supreme Court before recommending changes to the appellate rules. Committee members noted, when federal rules are amended, it has been the practice of the Committee to consider those changes in light of the corresponding state rules.
Mr. Kapsner MOVED to consider N.D.R.App.P. 4 as approved by the Joint Procedure Committee at the January 2000 meeting. Judge Leclerc seconded.
The Committee considered N.D.R.App.P. 4 on pages 141-48 subdivision by subdivision. The Committee made no changes to lines 5-11.
The Committee considered lines 12-14. Staff stated those lines were from the federal rule and were not in the existing North Dakota rule. Ms. Bruggman indicated this language
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appears to encourage premature filing of a notice of appeal and recommended the language not be adopted. Committee members noted this language was consistent with case law. Mr. Kapsner MOVED to delete lines 12-14 and renumber accordingly. Judge Leclerc seconded. Motion CARRIED by a vote of 15 to 2.
The Committee considered lines 15-17, dealing with multiple appeals. Committee members noted these provisions were consistent with the existing rule. No further objections were raised about those lines.
The Committee considered lines 18-30 without making any changes.
The Committee considered lines 31-34. Mr. Sturdevant MOVED to delete lines 31-34 and re-letter accordingly. Judge Leclerc seconded. Ms. Bruggman said the "order" in line 33 is confusing an recommended not adopting the language. Some Committee members said the language followed the federal rule. The motion to strike lines 31-34 CARRIED by a vote of 8 to 6.
The Committee considered lines 35-38 without making any changes.
The Committee considered lines 39-42. Ms. Bruggman commented the provision adds an additional 63 days to the time an appeal is pending in the Supreme Court. She noted the language encourages a notice of appeal to be filed after the judgment or order and another notice of appeal to be filed after the order on post-judgment motions. She suggested deleting language in line 41 after the word "appeal". Judge Leclerc MOVED to insert a period on line 41 after the word "appeal" and to delete the remainder of lines of 41-43. Judge Smith seconded. The motion FAILED by a vote of 11 to 4.
The Committee considered lines 58-74. Judge Hagerty MOVED to insert a period after the word "time" on line 67 and delete the rest of line 67 and 68. Judge Simonson seconded. The motion CARRIED by a vote of 15 to 2.
Mr. Kapsner MOVED to delete the following language on lines 63-64: "A motion filed before the expiration of the time period prescribed in Rule 4(a)(1) or (3) may be ex parte unless the court requires otherwise" and to change the remaining language in lines 64 to 65 to read: "If a motion for extension of time is filed, notice must be given to the other parties." Judge Leclerc seconded. The motion CARRIED by a vote of 15 to 2.
The Committee considered N.D.R.App.P. 4(b) beginning on line 75. The Committee made no changes to lines 75-85. Without objection, the Committee put a colon at the end of line 90 and deleted all of line 91.
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Judge Hagerty MOVED to substitute lines 74-78 on page 152 for lines 104-107 on page 146. Mr. Kapsner seconded. The motion CARRIED.
Without objection the Committee replaced hyphens in lines 41, 84, 108, 109, and 113 with commas.
Judge Hagerty MOVED to insert the language from pages 153-154, lines 102-105 after line 134, on page 147. Ms. Schmitz seconded. The motion CARRIED unanimously.
The Committee considered the explanatory note to N.D.R.App.P. 4. Judge Hagerty MOVED to direct staff to revise the explanatory note to explain that, to help insure a timely filing of a notice appeal, a party should file a notice of appeal when filing a motion for extension of time to appeal in the trial court. Ms. Moore seconded. Motion CARRIED.
The Committee discussed the time for appeal in a criminal action. Some members suggested the time for a criminal defendant to appeal should be 60 days as in a civil case. Others said criminal cases go faster than civil cases, which explains the shorter time period for criminal cases. Others suggested there is a public interest in finality for criminal cases. Some members expressed a preference to shorten the time for the state to appeal in a criminal matter. Others members thought a longer time for an appeal in a criminal case was necessary for a cooling down period.
Mr. Hoffman MOVED to change the time for appeal by a defendant in a criminal case from 10 to 60 days in line 78 on page 144. Mr. Kapsner seconded.
Some members expressed a preference for public comment on changing the time for appeal by a defendant. Others members pointed out this issue was not on the agenda. Others members thought 30 days, not 60 days, was the appropriate time for a defendant to appeal.
Judge Foughty MOVED to amend the motion to provide 30 days for a defendant to appeal in a criminal case. Mr. Odegard seconded the motion. The motion to replace 60 days with 30 days CARRIED by a vote of 15 to 1.
Judge Geiger MOVED to postpone discussion of the time for a defendant to appeal to the next meeting. Judge Smith seconded. The motion CARRIED by a vote of 10 to 6.
Committee members also noted N.D.R.Crim.P. 37 dealt with the time to appeal in criminal cases, and post-conviction relief procedures in N.D.C.C. § 29-32.1-14 also included
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a separate time for appeal.
Mr. Kapsner MOVED to direct staff to prepare a proposal for N.D.R.Crim.P. 37 and for the time to appeal in a post-conviction proceeding. Mr. Hoffman seconded. Motion CARRIED.
At the September 1999 meeting, the Committee decided to recommend that the Supreme Court repeal N.D.R.App.P. 7. Colette Bruggman of the Supreme Court Clerk's Office appeared to state Rule 7 serves a significant purpose, especially for litigious pro se litigants, and the rule has been used to dismiss appeals. Committee members indicated, if the rule is aimed at pro se litigants, the rule should require a party to make a motion for a cost bond as the federal rule currently provides.
Judge Leclerc MOVED to direct staff to prepare a proposed draft following the federal rule for consideration by the Committee. Mr. McLean seconded. The motion CARRIED.
The Committee also indicated it wanted to look at statutes which had been superseded by N.D.R.App.P. 7 to see if any further action was necessary because those statutes had been superseded by the rule.
RULE 3.2, N.D.R.Ct. - MOTION PRACTICE (PAGES 295-315 OF THE AGENDA MATERIAL)
The Committee considered whether briefs are required for every N.D.R.Ct. 3.2 motion and whether Rule 3.2 is the only manner in which a motion may be presented to a trial court.
Committee members stated briefs were required for every motion. Committee members stated Rule 3.2 is a general rule and governs unless a specific rule states something different. Committee members stated subdivision (e) provides the rule does not apply to the extent it conflicts with another rule adopted by the Supreme Court.
Judge Hunke MOVED to adopt the proposed amendment to the explanatory note in line 52 on page 315 of the agenda material. Mr. Sturdevant seconded. Motion CARRIED.
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The meeting adjourned at approximately 12:00 noon.
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Jim Harris