MINUTES OF MEETING
Joint Procedure Committee
September 26-27, 2002
TABLE OF CONTENTS
Petitions for Amendment of Court Rules 2
Rule 8.2, N.D.R.Ct. - Interim Orders in Domestic Relations Cases 3
Revisions to North Dakota Rules of Criminal Procedure 3
Rule 13, N.D. Sup. Ct. Admin. Order - Interactive Television Pilot Project, East Central Judicial District 4
Rule 5, N.D.R.Crim.P. - Initial Appearance Before the Magistrate 12
Rule 10, N.D.R.Crim.P. - Arraignment 13
Rule 43, N.D.R.Crim.P. - Presence of the Defendant 13
Rule 10, N.D.R.App.P. - The Record on Appeal 14
Rule 4, N.D.R.Civ.P. - Persons Subject to Jurisdiction--Process--Service 15
Rule 21, N.D.R.App.P. - Writs of Mandamus and Prohibition, and Other Extraordinary Writs 18
Discovery Guidelines 20
Rule 41, N.D. Sup. Ct. Admin. Rule - Access to Judicial Records 22
Expedited Appellate Procedures in Dependency Cases 23
CALL TO ORDER
The meeting was called to order at approximately 1:30 p.m., on September 26, 2002, by Justice Dale V. Sandstrom, Chair.
Justice Dale V. Sandstrom
Honorable Bruce E. Bohlman
Honorable Donovan Foughty (September 27 only)
Honorable Gail Hagerty
Honorable Ronald J. Hilden
Honorable Lawrence A. Leclerc (September 26 only)
Honorable David W. Nelson
Honorable Thomas J. Schneider
Honorable Mikal Simonson
Mr. Michael R. Hoffmam
Mr. John C. Kapsner
Mr. Ronald H. McLean (September 26 only)
Ms. Sherry Mills Moore
Mr. Steven W. Plambeck
Ms. Cathy Howe Schmitz
Mr. Michael G. Sturdevant
Honorable M. Richard Geiger
Mr. Daniel S. Kuntz
Mr. James T. Odegard
The Chair updated the Committee on future meetings. It was agreed that the Committee's January 2003 meeting would be held in Fargo on January 30-31 and that the Committee's April 2003 meeting would be held in Bismarck on April 24-25.
APPROVAL OF MINUTES
Ms. Moore MOVED to approve the minutes. Judge Leclerc seconded. Motion CARRIED.
PETITIONS FOR AMENDMENT OF COURT RULES (PAGES 32-36 OF THE AGENDA MATERIAL)
Staff updated the Committee on the status of the Committee's petitions pending before the Supreme Court.
RULE 8.2, N.D.R.Ct. - INTERIM ORDERS IN DOMESTIC RELATIONS CASES (PAGES 37-44 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to N.D.R.Ct. 8.2.
Judge Hagerty MOVED to adopt rule as amended. Ms. Schmitz seconded.
A member asked whether the state disbursement unit had statutory authority to distribute interim spousal support. Another member explained that inquiries had been made to the disbursement unit and the unit indicated it could distribute interim spousal support.
A member explained that interim spousal support was an issue only in a handful of cases and that clerks of court did not have the facilities to disburse the money involved in these cases. The member explained that the state disbursement unit already distributes permanent spousal support.
A member asked whether any rules or statutes still allowed courts to order support payments to be made directly to the obligee. The consensus was that such authority had been removed and that distribution of support money through the state disbursement unit was required.
A member stated that sending support money through the state disbursement unit was sometimes a problem because of the slow turnaround times involved. The member suggested that courts should have the option of ordering payments directly from the obligor to the obligee. Another member said this was impractical because money paid directly could not be accounted for and disputes often resulted in such cases.
Motion to adopt rule as amended CARRIED 13-0. Without objection, it was agreed the rule as amended should be sent to the Supreme Court immediately for consideration.
REVISIONS TO NORTH DAKOTA RULES OF CRIMINAL PROCEDURE (PAGES 45-49 OF THE AGENDA MATERIAL)
Staff provided an overview of recent amendments to the Federal Rules of Criminal Procedure and suggested that would be appropriate for the Committee to consider a review of the North Dakota Rules of Criminal Procedure.
Judge Leclerc MOVED to have the Committee review the North Dakota Rules of Criminal Procedure. Mr. McLean seconded. Motion CARRIED 13-0.
RULE 13, N.D. Sup. Ct. Admin. Order; INTERACTIVE TELEVISION PILOT PROJECT, EAST CENTRAL JUDICIAL DISTRICT (Pages 50-75 OF THE AGENDA MATERIAL)
Staff provided an overview of the events that led to the Supreme Court's adoption of Admin. Order 13.
The Chair explained that it was necessary to have an order governing use of interactive television in the East Central Judicial District because the new jail in Cass County was distant from court facilities. The Chair stated that, under Admin. Order 13, it was contemplated that ITV would be used in criminal proceedings from the new jail as well as in proceedings from other remote locations.
The Chair explained that the Supreme Court approved Admin. Order 13 because it was similar to Admin. Order 11, the ITV order in place in the South Central Judicial District. The Chair said the Court expected the Committee to review Admin. Order 13 and provide comments and suggest changes.
A member questioned whether the Court had authority to override court rules through Admin. Order 13. The member asked why the court rules themselves could not be changed if change was necessary to facilitate the ITV project. Another member observed that the Court had authority to suspend its court rules and had chosen to do so here because of the experimental nature of the project.
A member indicated that the judges of the ECJD were not enthusiastic about Admin. Order 13 as promulgated by the Court, and that the order needed to be modified before funds could be committed to the ITV project. The member stated that Admin. Order 13 was too complicated and cumbersome in its present form.
A member said it was a fundamental principle that criminal proceedings should be held in a courtroom. The member suggested it was improper to alter this principle for some people in some locations by administrative order--instead, if necessary the court rules should be amended so that everyone in the system was treated consistently.
A member agreed that, for therapeutic reasons, most criminal proceedings should take place in the courtroom. The member, however, observed that it would be advantageous both to the accused and the system if some initial proceedings were done by ITV in locations where this was possible.
A member commented that 150 inmates typically need to be bused from the new Cass
County jail every Monday morning to make court appearances. The member said that being able to use ITV would alleviate some of the logistic problems and costs created by the need for busing and the resulting high traffic levels at the courthouse. The member indicated that Cass County officials had a strong desire to get the ITV pilot project going soon so that these problems could be addressed.
The Chair commented that the Court's long term goal was to amend court rules as necessary so that ITV could be used in courts throughout North Dakota, but that it was necessary at present for the Court to issue pilot project orders so that some work could be done immediately on getting ITV proceedings going. The Chair commented that the Court would welcome amendments to improve Admin. Order 13.
A member suggested that an extensive analysis of the court rules and state statutes should be done before the Committee attempted to make rule amendments allowing ITV use. The member said such study would help ensure that ITV could be used in a constitutional manner. The Chair said that the Committee in the future could conduct additional research and consider additional rule amendments regarding ITV. The Chair indicated, however, that the Court required immediate advice regarding Admin. Order 13 because the order had been approved and was in place.
Ms. Schmitz MOVED to amend Protocol 3 on page 55. Judge Hagerty seconded.
A member commented that the first sentence of Protocol 3 required the party's attorney to be present at the remote ITV site while the second sentence seemed to negate the requirement. The member suggested that the Committee reword and harmonize the two sentences.
Members remarked that, in the majority of cases, the attorneys will be present in the courtroom rather than being at the remote ITV site. A member said that requiring attorneys to be present at the remote ITV site would be cumbersome. A member pointed out, however, that if an attorney is not at the remote site with a criminal defendant, it would be difficult for the attorney and the defendant to consult confidentially.
Mr. McLean MOVED to amend the motion to remove any requirement for opposing party consent before an attorney may be absent from a remote ITV site. Judge Leclerc seconded.
A member asked whether, under the proposed amendment, an attorney could appear from a site remote from the site where the party was located and also remote from the courtroom. A member stated that, under the proposed language, out-of-state attorneys in a
civil matter could choose to participate from out-of-state ITV locations even though the opposing party and its North Dakota attorneys might object. The member stated that, for this reason, the amended language might be suitable in criminal matters but not in civil matters.
A member questioned whether one party in a civil matter should be able to veto another party's attorney's participation by ITV in a proceeding, even if such participation is from out-of-state. Another member observed that participation by a party and its attorneys at separate sites would need to be approved by the court under the language proposed.
A member observed there was no requirement in the order that ITV sites meet uniform standards. The member explained that ITV facilities varied greatly.
Motion CARRIED 9-5.
Without objection, language within the approved amendment was changed from "a location" to "another ITV site."
Judge Bohlman MOVED to add the language "in a criminal proceeding" and to substitute "defendant" for "party" in Protocol 3 at page 55. Mr. Kapsner seconded.
The Chair observed that, under the proposed amendment, the attorney presence provision would only apply in criminal cases. A member suggested that the Committee deal separately with the attorney presence issue in the civil context.
Motion CARRIED 14-1.
Judge Bohlman MOVED to eliminate Sections 3 and 4 on page 54 of Admin. Order 13 as unnecessary. Judge Schneider seconded.
A member objected to the elimination of Section 3 on special proceedings, which would cover proceedings seeking writs and injunctions. The member explained that such proceedings are not civil actions and thus should be dealt with separately in Admin. Order 13.
In reference to the proposal to delete Section 4, a member commented that statutory law requires parties to mental health proceedings to be present and imposes other requirements for these proceedings, so such proceedings do not fall neatly under the heading of civil actions.
The Chair explained that special statutory proceedings (such as writ proceedings and
mental health proceedings) were exempt from the rules under N.D.R.Civ.P. 81.
A member stated that a protocol was being developed in Jamestown so that mental health proceedings could be done by ITV from the State Hospital. The member indicated that it would be helpful to look at this protocol before deciding what to do about Section 4 on mental health proceedings. Another member explained, however, that the mental health proceeding protocols were still in the development stage.
A member commented that the Committee should focus on making the order workable for the case types that likely would be addressed by courts via ITV--criminal proceedings and involuntary commitment cases. The member commented that a typical court was unlikely to be called upon to deal with a special proceeding case by ITV.
Another member, however, replied that in some high profile injunction cases, such as those involving abortion clinic protests, parties could seek to have the case handled by ITV because out-of-state attorneys are often involved. A member remarked that in a past special mandamus proceeding on a taxation issue, the parties were spread across the state--such a case would have been a candidate for handling by ITV. Another member remarked that many types of more common proceedings, including foreclosures, fell into the category of special proceedings.
A member commented that a special proceeding or mental health proceeding still would fall into the broad category of civil action because such proceedings are not criminal actions. Therefore, the member said, Admin. Order 13 would still apply to such a proceeding even if Sections 3 and 4 were deleted as proposed.
A member stated that Section 4 on mental health proceedings contained the fallacy that a respondent in a mental health proceeding could voluntarily and knowingly waive a right. Another member stated that respondents in mental health proceedings are not necessarily incompetent and that statutory law specifically allows them to waive their rights.
A member suggested that the Committee have separate votes on the motion to delete the sections, with one vote on deleting the mental health section and another on deleting the special proceedings section.
Without objection, the Committee voted separately on whether to remove the sections.
The motion to strike Section 3 on special proceedings CARRIED 7-6.
The motion to strike Section 4 on mental health proceedings CARRIED 9-6.
Without objection, the Committee agreed to insert a comma into Section (B)(1) at page 54.
Mr. McLean MOVED to amend Section (B)(1), deleting some language and adding "upon good cause." Judge Leclerc seconded.
A member wondered why it would be necessary to have good cause before an ITV proceeding could take place. The member indicated that there should be a presumption in favor of permitting the ITV proceeding unless there was a good reason not to have it. The member suggested that the order allow ITV proceedings to be blocked only upon a good cause or good faith objection.
Motion to allow ITV proceedings "upon good cause" CARRIED 9-5.
Judge Simonson MOVED to strike Section (D)(2) on page 55. Judge Hilden seconded.
A member asked whether the existence of Section (D)(2) indicated that ITV proceedings would be electronically recorded instead of (or in addition to) being recorded by a court reporter. A member commented that mental health proceedings are customarily taped instead of being recorded by a court reporter because statutory law permits tape recordings to be used as the record of a mental health proceeding.
Several members stated that the language of Section (D)(2) was permissive, allowing a transcript to be made of an ITV recording. A member stated that such language seemed to be redundant and unnecessary.
Motion to strike Section (D)(2) CARRIED 14-0.
A member asked what would happen under Section (C) of Admin. Order 13 when an objection was raised to an ITV hearing in a civil matter. The member questioned why such an objection had to be made within five days under Section (C). The member pointed out that there was no provision in the rule for a hearing on an objection.
A member stated that, under the new language requiring good cause before an ITV hearing in a civil matter, the parties would be required to seek permission for the ITV hearing and that any party with objections would be able to raise them at that time.
A member commented that the Section (C) time frames for objections would not work. Another member suggested that the federal rule could provide insight because the federal courts in North Dakota were using ITV on a regular basis. After locating the local federal rule on ITV (Local District Court Rule 77.3 (G)(4)), a member indicated that it seemed a good model because of its simple language.
Judge Leclerc MOVED to substitute language from the federal local rule for the existing language in Section (C)(1)(2) and (3), The Committee discussed whether this was an appropriate place for the new language to be inserted.
Judge Leclerc amended his own motion to have the federal language follow Section (B)(1) and to strike Sections (C)(1)(2)(3) and renumber accordingly. Mr. Kapsner seconded.
A member suggested that language indicating that Section (B)(1) applies to civil actions and special proceedings be added to the amended section.
A member observed that the federal language applied only to testimony given by ITV. A member suggested that the language be revised to be applicable to testimony and other proceedings conducted by ITV.
Judge Nelson MOVED to amend the motion on the floor to delete language limiting application of the amendment to testimony. Mr. Sturdevant seconded. Motion to amend motion CARRIED 14-0.
A member suggested that using the federal language was not completely appropriate because the clerk of court does not necessary have the same degree on influence in day-to-day operations in state court. Without objection, language in the motion was changed from "clerk's office" to "court."
Motion to add language to Section (B)(1) and delete Section (C) CARRIED 12-2.
A member asked whether language requiring an officer to be present at the ITV site was necessary. Some members stated that officers would not necessarily show up at ITV sites unless required to be there.
A member commented that the discussion on whether certain language in Admin. Order 13 was appropriate or necessary pointed out the fact that the order was not well drafted and that much of its language was amorphous. The member commented that any part of the order could be picked apart because it was a stopgap measure to govern a pilot project. The member suggested that the Committee refrain from any additional changes.
A member noted that Admin. Order 13 was based on an administrative order that had been in place for several years. The member observed that, even though Admin. Order 13 would only govern a pilot project, it could well be in place for years.
A member commented that the situation in the SCJD, where Admin. Order 11 had been in place for several years, was different than the situation in the ECJD, where Admin. Order 13 would govern. The member stated that in the SCJD, it was only necessary to have an order that would work on the limited occasions when a judge in a central location needed to connect by ITV with a party in a rural location.
The member stated that it was appropriate for the Committee to amend Admin. Order 13 to address the real needs of the ECJD ITV project, such as initial appearances from an ITV site at the new Cass County jail and involuntary commitment proceedings. The member said the Committee seemed to be focusing on broad changes instead of seeing that the order was in line with the specific needs of the ECJD.
A member observed that it was inappropriate to deal with ITV pilot projects with customized administrative orders. The member commented that the Committee should make changes to court rules in general if it was deemed necessary to use ITV proceedings in the state.
A member stated that, in the future, it may not be necessary for the Supreme Court to issue customized administrative ITV orders because the work the Committee was doing on Admin. Order 13 could solve the major problems of the previous orders. The member stated that the Committee was on its way to forging an order that would work in the ECJD. The member reminded the Committee that Admin. Order 13 was in effect and that the changes the Committee was making were necessary to improve it and make it workable.
A member indicated that the Committee should consider advising the Supreme Court that the order should apply statewide and that the Committee should make additional changes to the order with statewide application in mind. The Chair reminded the Committee that making changes to the criminal procedure rules to facilitate ITV was on the agenda for the meeting and the administrative orders issued by the Supreme Court were attempts to provide a framework for trying out different ideas on making ITV work.
Based on the foregoing discussion, the Committee proceeded to make a series of amendments.
Mr. Kapsner MOVED to add new language to Section (B)(2)(d) and eliminate Section (D)(7). Judge Leclerc seconded. Motion CARRIED 14-0.
Mr. Kapsner MOVED to eliminate Section (D)(1). Mr. Sturdevant seconded. Motion CARRIED 14-0.
Judge Simonson MOVED to eliminate Section (D)(9). Judge Hagerty seconded. Motion CARRIED 14-0.
Judge Leclerc MOVED to eliminate Section (D)(8). Ms. Schmitz seconded. Motion CARRIED 14-0.
Judge Bohlman MOVED to eliminate Section (D)(6). Judge Simonson seconded. Motion CARRIED 14-0.
Judge Leclerc MOVED to transfer Sections (D)(3)(4) and (5) and renumber as Sections (B)(2)(e)(f) and (g). Ms. Schmitz seconded. Motion CARRIED 14-0.
A member commented that new Section (B)(2)(g) requiring a fax machine to be available seemed too restrictive and that the language should be changed to allow other electronic devices to be used for document transmission.
Judge Hagerty MOVED to amend language in new Section (B)(2)(g) to allow electronic transmission devices other than fax machines to be used at ITV sites. Ms. Schmitz seconded. Motion CARRIED 14-0.
Ms. Schmitz MOVED to amend new Section (B)(2)(f) to delete extraneous language. Mr. Kapsner seconded. Motion CARRIED 14-0.
Mr. Plambeck MOVED to amend new Section (B)(2)(f) to change the word "private" to "confidential." Judge Leclerc seconded. Motion CARRIED 14-0.
A member suggested that, once the Committee was finished amending Admin. Order 13 that it recommend to the Supreme Court that the same changes be made to Admin. Order 11. Several Committee members advised that such a change could create problems.
A member stated that a sentence in the first paragraph of the order did not seem to express the goals of the pilot project as discussed at the meeting.
Ms. Schmitz MOVED to amend second sentence of Admin. Order 13 to remove language. Judge Simonson seconded. Mr. Kapsner MOVED to amend motion to delete the entire sentence referring to delay of proceedings. Judge Leclerc seconded. Motion to amend motion CARRIED 14-0. Amended motion CARRIED 14-0.
A member asked whether it was appropriate to allow any sentencing via ITV. Another member commented that misdemeanor sentences could be imposed in writing under present law so it was appropriate to allow ITV sentencing.
Without objection, the Committee agreed the rule as amended should be sent immediately to the Supreme Court.
Meeting recessed at approximately 4:15 p.m.
September 27, 2002 - Friday
The meeting was called to order at 9:00 a.m., by Justice Dale V. Sandstrom, Chair.
RULE 5, N.D.R.Crim.P. - INITIAL APPEARANCE BEFORE THE MAGISTRATE (PAGES 108-113 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to N.D.R.Crim.P. 5, 10 and 43.
Ms. Schmitz MOVED to adopt amendments. Ms. Moore seconded.
Judge Foughty MOVED to delete language in line 49, page 110, that required defendant consent to ITV hearings. Ms. Schmitz seconded.
A member commented that, in light of the Committee's discussions on Admin. Rule 13, the main issue remaining to discuss on N.D.R.Crim.P. 5, 10 and 43 was whether to give the defendant the power to veto an ITV hearing.
A member stated that, under North Dakota's rules and caselaw, a criminal defendant has the right to be present at all proceedings. The member said that, if the Committee removed the language requiring defendant consent to ITV proceedings, this would fly in the face of North Dakota precedent.
A member commented that an initial appearance was a routine, information gathering, event and not confrontational. The member stated that the defendant often does not even have an attorney at the initial appearance.
Another member indicated that the preliminary examination was a more important
step in the criminal process and having a defendant present in court was more important at that stage.
A member stated that retaining the defendant consent requirement would be appropriate for the present, pending the results of the ECJD pilot project, under which defendant consent would not be required. The member said that, if the ECJD no consent approach works, then it might be appropriate to consider deleting the consent requirement from N.D.R.Crim.P. 5, 10 and 43.
A member commented that, when it comes to very preliminary proceedings such as bond hearings and initial appearances, a defendant sitting in jail is likely to consent to an ITV proceeding, especially if this would mean getting out of jail sooner. The member said the situations where a defendant would not consent would likely be rare, and that in such cases, a defendant's refusal to consent should be honored.
Motion to delete consent requirement FAILED 1-12.
Motion to send amended rule to Supreme Court with the next annual rules package CARRIED unanimously.
RULE 10, N.D.R.Crim.P. - ARRAIGNMENT (PAGES 114-116 OF THE AGENDA MATERIAL)
Ms. Schmitz MOVED to adopt amendments. Mr. Sturdevant seconded. CARRIED unanimously.
RULE 43, N.D.R.Crim.P. - PRESENCE OF THE DEFENDANT (PAGES 117-119 OF THE AGENDA MATERIAL)
Ms. Schmitz MOVED to adopt amendments. Mr. Sturdevant seconded.
A member pointed out superfluous language in the proposed amendment. Without objection, the phrase "except as otherwise provided by this rule" was deleted.
A member questioned whether the revised language was completely clear.
Judge Schneider MOVED to rearrange the language of the proposed amendment. Ms. Schmitz seconded.
Motion CARRIED unanimously.
Motion to send amended rule to Supreme Court CARRIED unanimously.
RULE 10, N.D.R.App.P. - THE RECORD ON APPEAL (PAGES 120-144 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to N.D.R.App.P. 10.
Ms. Schmitz MOVED to adopt amendments. Judge Bohlman seconded.
A member disagreed with the change. The member stated that obtaining a transcript of jury voir dire should be required unless the parties agree otherwise. The member stated that, if defendants without lawyers file appeals and do not read the rule, they may inadvertently waive arguments relating to jury selection by failing to request a voir dire transcript.
The member stated that lawyers should know whether or not there is a jury selection issue and that they have the option under the current rule of not requesting a voir dire transcript when there is no issue.
A member indicated that there is a problem for reporters related to voir dire transcripts--reporters do not charge indigent defendants for transcripts, and requiring reporters to transcribe voir dire in addition to the rest of the proceeding increases the cost to reporters in cases where indigent defendants are involved.
A member commented that, under the new jury standards, recording voir dire is required in felony cases even if both sides agree recording is not necessary. The member said that it was the non-waivable recording requirement that created the problem of whether or not to require voir dire transcription in the case of an appeal.
A member asked whether the Committee had the option of suggesting amendments to the jury standard requiring a record of voir dire. The Chair indicated that the Committee could deal with the jury standards separately if it believed changes were required.
A member commented that the Jury Standards Committee had worked on the jury standards for years and just obtained approval of the standards by the Supreme Court. The member's opinion was that it would not be appropriate for the Committee to attempt to amend the standards such a short time after their approval.
The Chair observed that in the small number of cases in which a jury selection issue was raised on appeal, it was very helpful for the Supreme Court to have a transcript of voir dire.
A member stated that jury selection issues would likely be raised more often in the future because of federal limits on habeas corpus review, under which a defendant is considered to have waived all issues not raised in state court. The member stated that, under the proposed amendment, unwary pro se defendants may inadvertently waive their rights to raise jury selection issues in seeking post conviction relief.
Mr. Kapsner MOVED to amend lines 39-40, page 135, to require transcription of voir dire unless specifically waived. Ms. Schmitz seconded.
A member stated that such an amendment would not be necessary because other language in the rule already required transcription of the entire record unless there is a waiver. A member questioned whether reporters consider it necessary to transcribe voir dire even when a record is made of voir dire.
Without objection, Mr. Kapsner withdrew his motion.
Motion to send amended rule to Supreme Court CARRIED 8-5. Because rule did not carry by a two/thirds vote, it will be brought back next meeting for further discussion.
RULE 4, N.D.R.Civ.P. - PERSONS SUBJECT TO JURISDICTION--PROCESS--SERVICE (PAGES 145-176 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to N.D.R.Civ.P. 4 and Comstock Const., Inc. v. Sheyenne Disposal, Inc., 2002 ND 141, the Supreme Court case that had precipitated the amendments.
Mr. Kapsner MOVED to adopt amendments to N.D.R.Civ.P. 4. Ms. Schmitz seconded.
A member stated that the Comstock court's decision to add three mailing days under N.D.R.Civ.P. 6 to a party's deadline under N.D.C.C. § 35-27-25 to respond to a demand did not make any sense when the Comstock court also decided to define the date the party was served as the date the party actually received the mailed demand. The member said that once actual service on a person occurs no time should be added to a response period.
A member asked whether the Comstock court's ruling and the proposed amendment would also extend statutory limitation periods by three mailing days.
The Chair explained that N.D.C.C. § 35-27-25, the statutory provision at issue in Comstock, dated back to a territorial statute. The old territorial statutes in place at the time the predecessor statute to N.D.C.C. § 35-27-25 became law contained provisions defining what sort of service was required for a demand to commence an action. At present, N.D.C.C. § 35-27-25 remains in the Code while the old territorial service statutes have been superseded by the Rules of Civil Procedure.
The Comstock court, in reaching its decision, had to attempt to apply the Rules of Civil Procedure to service of a demand under N.D.C.C. § 35-27-25 while at the same time attempting to determine what the reasonable expectations of parties and attorneys were in regard to such service and the resulting response deadline.
The Chair explained that the Supreme Court believed that the rules should address what procedure applies when a statute requires personal service of an item but there is no ongoing action. The Chair said the Court believed that the Committee was in the best position to set out a procedure that would make sense and be consistent with the expectations of attorneys and not a trap for the unwary.
A member stated that the Comstock court's use of the three day mailing rule created bigger issues than its decision on what constituted proper service N.D.C.C. § 35-27-25. The member said that, if the time of personal service under N.D.C.C. § 35-27-25 was calculated to be the time of personal delivery of an item or the time a party signed a receipt for an item (as the Comstock court determined it should be), there was no need add in the three-day mailing period to any deadlines started by service. The member said adding the extra days for mailing only made sense when calculating a period from the time an item was mailed, not from the time a mailed item was delivered.
A member commented that the proposed amendment clarified what constituted personal service when such service was required by a statute such as N.D.C.C. § 35-27-25, but that the amendment did not address the three-day mailing period issue. Another member stated that N.D.R.Civ.P. 6 needed to be amended to address the mailing issue and that a cross-reference needed to be added to alert parties to the proposed change in N.D.R.Civ.P. 4 as well as any change in N.D.R.Civ.P. 6.
Mr. Sturdevant MOVED to amend line 285 of the proposed amendment to address service by publication as well as personal service. Judge Foughty seconded.
A member commented that allowing service by publication in cases where a statute requires service is necessary because sometimes the party to be served cannot be found. Another member replied that the proposed amendment referred to provisions of the Code that require personal service, and that service by publication is not personal service.
A member stated that service by publication is permitted in many matters related to real property. A member agreed, but stated that the proposed amendment only refers to statutes that require personal service, which the member defined as delivery of an item in hand.
Motion CARRIED 8-4.
A member asked whether there should be a discussion in the explanatory note indicating that the changes the Committee made were intended to abrogate the Supreme Court's decision in the Comstock case. The Chair indicated that the Committee's dissatisfaction with application of the three-day mailing rule to personal service of an item would need to be addressed with an amendment to N.D.R.Civ.P. 6 and accompanying explanatory note.
A member asked if, under the amendment just approved by the Committee, when a statute in the Code that requires personal service, such personal service be can now be accomplished by publication. A member stated that service by publication was only appropriate when personal service was attempted and fails. A member asked whether the amendment including possible use of service by publication was necessary, as such service was legitimate under N.D.R.Civ.P. 4 if personal service was unsuccessful.
A member stated that if personal service or service by publication were both allowed under the language of the amendment, a party could chose to serve by publication without first attempting to effect personal service. A member replied that, if only personal service is mentioned in the amendment, then service by mail is excluded. Another member suggested a redrafting which would allow service by publication only if personal service had been unsuccessful.
A member indicated that the goal of the amendment was to let attorneys know that, if the Code specifies that an item must be served, service must be under N.D.R.Civ.P. 4 rather than under the lesser requirements of N.D.R.Civ.P. 5.
Judge Bohlman MOVED to amend lines 284-285 to exclude reference to any specific subdivision of the rule or type of service. Mr. Sturdevant seconded.
A member stated that the amendment should also include language indicating that, if the Code requires a particular method of service, that method should be used. A member asked whether it was appropriate to exclude the word "personal" from the amendment. The Chair pointed out that it was necessary that the rule amendment give guidance in cases where the Code requires "service" and that Code provisions may not always specify whether service should be "personal."
A member commented that many parties are represented by lawyers, and if a statute requires service, the rule should allow service on the lawyer. The member explained that N.D.C.C. § 35-27-25 required personal service because the statute essentially created a 30-day statute of limitations for the party served. The member indicated that, in a case where a statute merely specifies "service" and the party to be served is known to be represented by a lawyer, service properly could be made to the lawyer.
A member suggested that the Committee look at N.D.R.Civ.P. 4 (d)(4) "Service Under Statute" and see whether it would apply. The Chair indicated that this subdivision applied only to parties served out of the state.
Motion to amend the amendment to remove reference to specific subdivisions of N.D.R.Civ.P. 4 CARRIED 12-1.
The Committee turned to the language of N.D.R.Civ.P. 4's explanatory note. The Chair indicated that some mention needed to be made of the three-day mailing rule. A member suggested that N.D.R.Civ.P. 6 needed to be amended before reference to the three-day mailing rule was made in the explanatory note. The member said that the three-day mailing rule needed to be changed.
Mr. Kapsner MOVED to postpone action on N.D.R.Civ.P. 4 and direct staff to make changes to N.D.R.Civ.P. 4 specifying that the three-day mailing rule would not apply in cases of statutory service. Mr. Sturdevant seconded.
A member stated that the language in N.D.R.Civ.P. 4 referring to statutes and statutory service needed to be made uniform. Staff was directed to take such steps.
Motion to postpone CARRIED unanimously.
RULE 21, N.D.R.App.P. - WRITS OF MANDAMUS AND PROHIBITION, AND OTHER EXTRAORDINARY WRITS (PAGES 177-192 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to N.D.R.App.P. 21.
Ms. Schmitz MOVED to adopt proposed amendments. Mr. Sturdevant seconded.
A member indicated concern over adopting the amendments because of concern the amendments would complicate actions that were already subject to statutory requirements and procedures. The member said that settled law existed for writs and injecting new and possibly conflicting procedures through the proposed amendment could create serious problems.
Another member commented that, even though sorting out the existing writ rules would be difficult, this is no reason to ignore the problem. The member suggested that while the amended N.D.R.App.P. 21 may not be acceptable, the Committee should still make an effort to incorporate writ procedures into the court rules. The member said such action would be beneficial to the state's lawyers who tend to look first to the court rules for guidance on procedure.
The Chair agreed that it was confusing for attorneys and courts when statutes (such as the writ statutes) set out procedures that are different than the procedures set out in the court rules.
A member observed that extraordinary writ issues do not come up often, but that it would be a good idea to have the extraordinary writ procedure set out in the court rules rather than in statute.
A member suggested that the Committee go through the writ statutes one-by-one to identify and extract the procedural elements. The member indicated that this would need to be done over a series of meetings, perhaps over a series of years.
A member suggested that the Committee look at one writ statute at a time. The member suggested that the Committee first determine what the procedural and substantive elements of a given writ statute were, and then work on drafting rules containing the procedural elements. A last step would be proposing statutes for amendment by the legislature.
A member expressed an impression that the writ statutes were primarily procedural and that the bulk of the work on the statutes would be in drafting new rules containing the procedural elements. A member responded that the heart of the writ statutes is substantive--they set out the relief available and the protections the legislature has chosen to provide for individuals.
Another member indicated a concern that, if the Committee were to draft extensive
writ rules, attorneys would look only to those rules and ignore what remained of the statutes. The member said that the time deadlines and procedural prerequisites for obtaining different types of writs varied from writ to writ. The member stated that the Committee needed to very comprehensive if it decided to take on the task of drafting writ procedure rules.
A member noted that there are other extraordinary writs that are not mentioned in the Code, such as the supervisory writ. The Chair indicated that the Supreme Court's authority to grant supervisory writs was derived from the Court's powers under the state constitution.
A member said that non-statutory writs like the supervisory writ create the most confusion because there is no guidance on the procedure for obtaining such a writ. A member suggested that perhaps there could be a separate rule on supervisory writ procedure. A member observed that supervisory writs are granted only on rare occasions and only where there is a matter of public interest.
A member said the Committee needed more information on when a supervisory writ could be used and what they were used for. A member explained that supervisory writs were often used in cases involving confidential material when the parties disagreed with the court's interpretation of what material should be kept confidential.
A member said it would be inappropriate for the Committee to make a rule setting standards for when a supervisory writ could be granted but that it would be useful to have a rule that set out the process for application for a supervisory writ.
A member suggested that the Committee could look into procedures used in temporary restraining order and injunction proceedings for insight into what procedures could best be used in writ proceedings. The member indicated that these procedures were found in the same Code chapter on remedies as the writ procedures.
Motion to postpone action on N.D.R.App.P. 21 CARRIED unanimously.
Mr. Kapsner MOVED to direct staff to draft a proposal setting out the process for seeking a supervisory writ--a draft rule. Judge Hilden seconded. Motion CARRIED unanimously.
DISCOVERY GUIDELINES (PAGES 193-320 OF THE AGENDA MATERIAL)
Staff provided an overview on the background of the Discovery Guidelines as promulgated by the American Bar Association and the National Conference of State Trial
A member commented that many of the discovery guidelines seemed derived from federal innovations. The member stated that the federal discovery system works because the federal government, unlike North Dakota, requires the summons to be filed to commence an action and because Fed.R.Civ.P. 16 requires heavy court involvement in the discovery and case management process. The member stated that, in the absence of such requirements, it would be difficult for new rules based on the discovery guidelines to function well in North Dakota.
A member asked whether there were problems in North Dakota that would make adoption of the discovery guidelines desirable. A member commented that the guidelines appeared to be a solution looking for a problem, and that the North Dakota court system did not have the resources to support a discovery system where the courts were heavily involved in the discovery process. The member commented that many run of the mill cases would not justify the additional work required for discovery in accordance with the guidelines.
A member stated that there is some discovery abuse going and that some of the guidelines were worth of being integrated into North Dakota's rules. The member suggested that the Committee especially should look at those guidelines that would help hold down the cost and burdens of discovery.
A member commented that it would be impossible to run a system such as that contemplated by the discovery guidelines without magistrates able to devote their time wholly to discovery related issues. The member also indicated that a system based on the discovery guidelines would not reduce costs--it is more expensive to do discovery in federal court because of all the scheduling meetings and court oversight required. The member suggested that the Committee not adopt any of the discovery guidelines.
A member stated that North Dakota had already put a more intensive case and discovery management system in place in family law matters and that this system had worked. The member commented, however, that the system currently in place for discovery in other civil cases seemed sufficient.
A member observed that the Committee seemed be aligned against adopting a discovery management system like the federal government. The member suggested, however, that some benefits might be attained if the Committee consider limiting the scope of discovery along the lines of recent federal limitations. The member explained that the federal government had added a relevancy test to its rule on scope of discovery, which had helped narrow the focus of discovery somewhat. The member also suggested the Committee
consider putting limits on the number of interrogatories and hours of depositions.
A member suggested that the Committee consider integrating discovery guideline 5, which requires parties to attempt to resolve their differences before taking a discovery dispute to the court.
Mr. Sturdevant MOVED for rule changes that would incorporate discovery guidelines 3, 5, 6, 7, 8, and 9. Ms. Schmitz seconded.
A member indicated that the Committee had recently rejected proposals to place limits on depositions and interrogatories. Another member commented that limiting interrogatories would not limit an attorney's ability to make discovery it would just require attorneys to be more thoughtful and creative in devising interrogatories.
Motion CARRIED unanimously.
RULE 41, N.D. Sup. Ct. Admin. R. - ACCESS TO JUDICIAL RECORDS (PAGES 321-361 OF THE AGENDA MATERIAL)
Staff provided an overview of a recent case that brought confidentiality issues related to N.D. Sup. Ct. Admin. R. 41 to the attention of the Supreme Court.
A member commented that N.D. Sup. Ct. Admin. R. 41 incorporation of all confidentiality requirements contained in statutory law allowed the rules to keep up with the numerous changes in privacy law. The member indicated that many new federal privacy protections were on the horizon and trying to incorporate these into the rules one by one would not be possible.
A member commented that, when a person puts their mental health at issue in court, court records related to this subject should be open. The member explained that records not opened through the court action would continue to be protected by applicable statutes.
Committee consensus was that N.D. Sup. Ct. Admin. R. 41 was adequate and that no rule changes relating to the confidentiality of court records should be considered at this time.
EXPEDITED APPELLATE PROCEDURES IN DEPENDENCY CASES (PAGES 362-387 OF THE AGENDA MATERIAL)
Staff provided an overview of recent studies suggesting expedited appellate procedures would be appropriate in some cases involving children.
A member asked whether there had been any increase in requests for the court to expedite dependency appeals on a case-by-case basis. The Chair indicated that such cases were generally handled on the normal appellate track.
A member suggested that the Committee wait to act on any rule changes until groups more involved with dependency cases could consider the data. The member indicated that the Committee could handle work required to draft any new rules once the other groups had an opportunity to comment and provide feedback on whether expediting dependency appeals was desirable.
A member asked whether there were any federal standards in place requiring dependency cases to be resolved in a given time period. The Chair informed the Committee that the federal tendency was to press for resolution of such cases in the shortest possible time.
A member raised the issue of whether a trial court should stay its decisions in dependency matters so that the child can maintain a status quo relationship with parents until resolution of any appeal.
A member commented that the other groups that look at dependency cases and possibly expediting dependency appeals should start out with the presumption that all types of cases in the court system should be treated the same unless there is a compelling reason for treating one group of citizens differently than another group.
A member indicated that it might be good to expedite dependency appeals, but that lawyers should not be penalized by having to deal with shorter deadlines. The member said dependency cases often involve complex issues that are hard enough for lawyers to figure out under the constraints of the present deadlines. The member suggested that having the clerk's office treat such appeals in an expedited manner might be a better way of reducing time for resolution of dependency appeals.
The Chair explained that the greatest time involved in appeal disposition is time that passes before the Supreme Court's members have been given a case. A member commented that once cases are heard a decision generally comes quickly.
The Committee's consensus was that the Committee would be willing to consider drafting rule changes related to expedited dependency appeals once other interested parties had looked at the material and data regarding such changes and made recommendations.
Meeting adjourned at approximately 11:30 a.m.
Michael J. Hagburg