MINUTES OF MEETING
Joint Procedure Committee
September 23-24, 2004
TABLE OF CONTENTS
Rule 3.1, N.D.R.Ct. - Pleadings 3
Rule 11, N.D.R.Crim.P. - Pleas 5
Rule 3.3, N.D.R.Ct. - Change of Judge for Postjudgment Motion or Proceeding 10
Rule 46, N.D.R.Crim.P. - Release From Custody 14
Proposed N.D. Sup. Ct. Admin. Order 16 - Electronic Filing Pilot Project for the District Courts 18
Rule 702, N.D.R.Ev. - Testimony by Experts 27
Rule 11.2, N.D.R.Ct. - Withdrawal of Attorneys 29
Rule 11, N.D.R.Civ.P., Signing of Pleadings, Motions and Other Papers; Representations to Court; Sanctions 29
CALL TO ORDER
The meeting was called to order at 1:00 p.m. on September 23, 2004, by Justice Dale V. Sandstrom, Chair.
Justice Dale V. Sandstrom
Honorable Bruce E. Bohlman
Honorable Donovan Foughty
Honorable M. Richard Geiger
Honorable Gail Hagerty
Honorable Lawrence A. Leclerc
Honorable David W. Nelson
Honorable Allan L. Schmalenberger
Honorable Thomas J. Schneider
Honorable Mikal Simonson
Mr. Michael R. Hoffman
The Chair set out the schedule for the meeting and confirmed that the Committee's next meeting will be in Bismarck on January 27-28, 2005. The Chair also welcomed the Committee's newest member, Ms. Jeanne L. McLean, the assistant dean of the UND School of Law.
APPROVAL OF MINUTES
A member pointed out a typographical error on page 12 of the minutes. Ms. Schmitz MOVED to approve the minutes with a correction on page 12. Judge Leclerc seconded. The motion to approve the minutes CARRIED unanimously.
PROPOSED AMENDMENTS TO NORTH DAKOTA COURT RULES (PAGES 31-33 OF THE AGENDA MATERIAL)
Staff informed the Committee that the annual petition for amendment of court rules had been presented to the Supreme Court and that a hearing on the petition had been scheduled for Monday, October 4, 2004, at 2:45 p.m. Staff invited any members with suggestions on issues that should be raised at the hearing to provide necessary information
The Chair and Judge Schmalenberger, Chair of the Court Technology Committee, briefed the Committee on a major revision of N.D. Sup. Ct. Admin. R. 41 (Access to Judicial Records) that was being worked on by the Court Technology Committee.
RULE 3.1, N.D.R.Ct. - PLEADINGS (PAGES 34-38 OF THE AGENDA MATERIAL)
Staff reviewed the actions taken by the Committee on Rule 3.1 at the April 2004 meeting and pointed out the changes that had been made to the Rule 3.1 proposal.
Judge Nelson MOVED for approval of Rule 3.1, as amended. Ms. Schmitz seconded.
A member said it was important to define "original" in this rule to give guidance to the court clerks. Another member commented that the proposed changes were innocuous but that more extensive change would likely be necessary if electronic filing was put in place.
A member commented that calling the first submitted document an original did not make it an original. A member suggested that another term should be substituted for "original."
Mr. Kuntz MOVED to strike "original" and replace with "filed copy" on page 35, line 21. Mr. Sturdevant seconded.
A member said using "copy" would be confusing and suggested "document" would be an appropriate term instead.
Without objection, Mr. Kuntz amended his motion to substitute the term "document" for "copy."
A member said that substituting this term would create even more confusion given the wording of the provision. A member asked whether the "original" in a court file needed to be an "original" with actual signatures and seals. A member said that most filed documents were not "real" originals.
A member suggested that the "filed document" be "treated as" the "original," even if not the "real original." A member pointed out that N.D.R.Ct. 2.2 defined a filed fax copy as the "original." The member said that a similar approach should be taken with this rule.
Judge Nelson MOVED to substitute a new motion for Mr. Kuntz's motion. Under the substituted motion, the term "considered" on page 35, line 21, would be replaced with "treated as" with the other proposed language retained. Mr. Kapsner seconded. The motion to substitute CARRIED 19-0.
Judge Nelson's motion CARRIED unanimously.
Staff clarified that the version of the rule before the Committee contained changes already approved by the Committee and before the Supreme Court. The changes related to originals, however, have not yet been approved by the Committee and were not before the Supreme Court. A member said that if the Committee approved the changes regarding originals, staff should bring those changes to the Supreme Court immediately so that the additional changes could be implemented with the approved changes.
A member suggested that changes to the explanatory note would be needed to conform to the change just approved by the Committee. Some members commented that the explanatory note term "designated" might be a better term than "treated as" and could perhaps be used in the rule itself. Other members said using "treated as" better reflected what would be done with filed documents.
Mr. Kapsner MOVED to replaced "designated" with "treated as" in the explanatory note, lines 62-63. Judge Leclerc seconded. The motion CARRIED unanimously.
A member suggested that the newly approved language still seemed to be at odds with the existing subdivision allowing copies to be filed when originals were lost. A member responded that the new language seemed to allow anyone to file a copy without permission from the court.
Ms. Schmitz MOVED to change the term "original" in lines 26-27 to "document" in order to eliminate the conflict. Ms. Moore seconded.
A member said the purpose of the subdivision seemed to be to allow copies to be filed when filed documents were lost, either by the clerk or judge. A member said the proposed language would help make this clear.
The motion CARRIED 16-3.
A member raised a concern that non-governmental entities with a legitimate use for social security numbers contained in judgments would not be able to access the numbers. Members responded that redacted documents would be available. A member commented that it was absolutely necessary to provide protection for social security numbers contained in court filings, and that the rule as developed by the Committee was as workable as possible.
The motion to approve the proposed rule as amended CARRIED unanimously.
Ms. Schmitz MOVED that Rule 3.1 as amended be sent to the Court immediately so it could be considered with the Committee's annual rules package. Judge Leclerc seconded. The motion CARRIED unanimously.
RULE 11, N.D.R.Crim.P. - PLEAS (PAGES 39-60 OF THE AGENDA MATERIAL)
Staff reviewed the actions taken by the Committee on Rule 11 at the April 2004 meeting and pointed out the changes that had been made to the Rule 11 proposal.
The Chair explained that the Committee was considering the rule as part of its survey of all the criminal rules and that, if the proposed changes were approved, the rule would be presented to the Supreme Court with the rest of the amended criminal rules as part of the criminal rules package.
Mr. Sturdevant MOVED for approval of the rule as amended. Mr. Kuntz seconded.
The Committee discussed correction of a typographical error in the proposal. Without objection, the Committee approved correction of the error.
A member asked whether the harmless error provision in the rule was necessary, since case law already holds that errors in plea procedure are not automatically reversible errors.
A member asked whether adopting the federal nolo contendere plea would be appropriate. The member observed that North Dakota already had accepted the Alford plea.
A member said that the nolo contendere plea was acceptable in the federal system because of the greater number of white collar crimes under federal law. The member said it would be a problem allowing sex offenders to make nolo contendere pleas under state law.
A member said that not allowing a defendant to plead guilty when facts are questionable is preferable to allowing nolo contendere or Alford pleas.
A member asked why there was an exception in the proposed rule allowing organizational defendants to avoid appearances to enter pleas. A member responded that the amendment seemed to be an expansion of the original North Dakota rule, which specifically allowed a corporation, not the more generic organization, to avoid being present to enter a plea.
A member said that no organization, including a corporation, should be able to avoid being absent at a court proceeding. A member responded that the rule proposal did not bar a judge from requiring a corporation's presence at a plea proceeding.
Mr. Hoffman MOVED to strike language on page 40, lines 11-12, regarding organizational defendants. Judge Leclerc seconded.
A member said the proposed language made sense because entry of a not-guilty plea triggers significant events in the case calendar and should not be automatic.
The motion CARRIED unanimously.
A member said the old rule language on page 40, lines 14-17, was superior to the proposed language because, even when a defendant does not appear personally, the defendant should be advised of the listed rights in the Rule 43 statement, Form 17. The member said the old language made this clear.
Mr. Hoffman MOVED to reinstate page 40, lines 14-17, delete the proposed new language at lines 18-21, and renumber accordingly. Judge Leclerc seconded.
A member said that Form 17 seemed to inform defendants of all necessary
The motion CARRIED 11-7.
The Committee discussed how the rule should be renumbered to reflect the approved change and without objection decided the restored language should be renumbered as paragraph (b)(1).
A member said that some elements of the revised federal rule should be adopted to replace the former items at page 41, lines 22-33. The member said the federal language was cleaner and more logical.
Mr. Hoffman MOVED to delete page 41, lines 22-33, and replace with language from the federal rule's paragraph (b)(1)(B), (C), (D), (E), (F), (G), (H), (I), and (K) and renumber accordingly, with language in (F) referring to "or nolo contendere" not to be included. Judge Leclerc seconded.
A member asked whether exclusion of certain federal provisions from a state plea proceeding could be attacked under federal habeas corpus law. A member responded that it was unlikely since the state handled some things, like forfeiture, differently from the federal government.
A member asked whether it was necessary to advise of the possibility of forfeiture proceedings or of prosecution for perjury if the defendant lies. A member said that courts did not advise defendants about everything and that guilty plea proceedings could last for days if the court was required to advise a defendant about every conceivable consequence of a guilty plea.
A member pointed out that the Supreme Court had recently stated that defendants need to be advised whether they will have to register as sex offenders if they plead guilty. A member said the Committee should attempt to be inclusive in determining what advice to require courts to provide defendants. The member said that the federal list was developed based on exhaustive research and inclusive because giving a defendant full advice best serves the interest of justice.
A member said that the better approach is to have general requirements for guilty plea proceedings. A member said that compiling specific requirements that must be recited in every case, regardless of whether applicable, just wastes time. The member also said that parallel changes to Rule 5 on initial appearances need to be made to match any change made
A member observed that the federal courts in North Dakota only have a few hundred guilty plea proceedings a year while state courts handle many thousands, so it doesn't necessarily make sense to include all the federal requirements or a lot of too specific requirements.
A member said that requiring courts to cover too much questionably relevant material in a guilty plea proceeding takes the focus off of the important items that need to be covered. The member said defendants may tune information out if too much is presented. The member said the law is clear on the basic things defendants need to be told.
A member agreed it would be better to limit the number of items courts are required to discuss with defendants to those things that are of real importance so that defendants will be able to hear and focus on the important information.
A member said that the federal language is clearer than the language in the present rule. The member said that the federal list contained some items that were not applicable in state court and that those items were not part of the pending motion.
Judge Hagerty MOVED to substitute federal rule paragraph (b)(1)(H) with some language regarding supervised release stricken and the term "mandatory fee" added. Judge Nelson seconded.
A member asked why the supervised release language should be deleted. A member explained that North Dakota does not have supervised release.
The motion to substitute CARRIED 18-1.
Mr. Hoffman's motion, with substituted language, CARRIED 14-5.
Mr. Hoffman MOVED to add a new paragraph (C) to page 42 after line 55 incorporating language from the federal rule regarding sentencing range. Judge Bohlman seconded.
A member asked whether the language regarding types of plea bargains needed to be separated into (A), (B) and now a proposed (C). The member said that, in practice, the various types of plea bargains that the proposed rule categorizes are often combined together.
The motion CARRIED 18-1.
A member said the harmless error section was not useful--that whether a given error was harmless needed to be decided by the courts. A member replied that the section was important because it made clear that substantive rights needed to be implicated before an error would cause reversal.
A member said that, by having the section, the definition of harmless error was not expanded--instead, the section simply made it clear that error needed to impact substantive rights before there could be a reversal.
The motion DEFEATED 5-14.
A member commented that adoption of a new type of plea agreement in subparagraph (c)(1)(C) and division of plea agreements into types under paragraph (c)(1) was unnecessary and might lead to the end of oral plea agreements and create a need for a written plea agreement requirement. The member said the proposed new requirements were way too complicated.
A member said that plea agreements could encompass all the different types categorized under paragraph (c)(1) and that this could create a confusing situation for the courts and defendants. A member responded that it should be possible for a court to explain the impact of a given plea agreement to a defendant.
The motion to adopt proposed changes and include the rule in the criminal rules package CARRIED 16-4.
The Chair explained that since the rule was going into the criminal rules package that the Committee could revisit it if any members thought this was necessary. On request from a member, staff was instructed to include a copy of the rule with approved amendments when the draft minutes were distributed to the Committee.
CEREMONY HONORING JUDGE LAWRENCE LECLERC AND JUDGE BRUCE BOHLMAN
The Chair announced that this was the final Committee meeting for Judge Leclerc and Judge Bohlman. Both judges are retiring at the end of 2004. The Chair presented both judges with plaques recognizing their many years of service to the Committee.
Staff explained that Mr. McLean had proposed adoption of a Wisconsin rule provision allowing parties to request a change of judge when a matter was remanded after an appeal. Staff explained that the rule proposal before the Committee contained Mr. McLean's requested change as well as the change of judge provisions currently part of N.D.C.C. § 29-15-21.
Mr. McLean MOVED for approval of the rule as amended. Ms. Schmitz seconded.
A member observed that the right to change of judge was longstanding in North Dakota. The member said that this was a matter of court procedure that should be in the court rules rather than the century code. The member said that having the right to change a judge was an important right that gives the appearance of fairness.
The member said that giving litigants the additional right to change a judge after appeal and remand also would contribute to giving litigants a sense that the system was fair.
A member said it would be appropriate to supersede the statute and add the right to change judge after an appeal. The member said in addition it should be spelled out that the right to bump a judge without cause is a right that can only be used one time in a matter. The member said that it was not clear in the statute that the bump right was a one time only right.
A member pointed out that, in a divorce proceeding, it may be allowable to exercise numerous bumps.
A member stated an objection to superseding the statute. The member said that the legislature in the statute gave the people a tool to protect themselves from the judiciary and it would be wrong for the judiciary to take control of that tool.
Mr. Kapsner MOVED to delete the sentence at lines 51-54 of the proposal, allowing presiding judges to decline a request for change of judge in cases involving multiple parties on a side. Mr. McLean seconded.
A member said if there are multiple parties, every party should be able to exercise the right to bump a judge. The member said that moves were ongoing to abolish non-partisan judicial elections and allow judge candidates to participate in party politics. The opposing factors at work were the free speech rights of judge candidates to engage in party politics vs.
The member said that retaining the ability to bump a judge in North Dakota would allow litigants some defense against a judge they believe to be biased based on potentially partisan speech by the judge in trying to get elected. The member said that because partisan judicial elections are likely in the future, it is important to allow any party to bump a judge.
A member said that if the power to bump a judge was extended to all parties (as when there are multiple defendants) it is very likely that the parties could run out of judges in a district to bump. A member said that the possibility of problems is significant if unlimited bumping is allowed and that some mechanism needs to be put in place that would at least allow a presiding judge to say no to multiple bump requests by parties with similar interests.
A member pointed out that the Supreme Court in Traynor v. Leclerc had concluded that bumping judges was a procedural matter and thereby laid the groundwork for replacement of the statute by a rule. The member said the Committee should take the step of adopting the rule.
A member said the present system, which allowed presiding judges to step in and limit multiple bump requests, was hard enough to administer in cases involving disgruntled litigants and multiple appeals. The member suggested the Committee look at ways of limiting opportunities to request judge bumps rather than expanding them by allowing bumps after appeals or limiting a presiding judge's power to control bumps.
A member said that the proposal to allow multiple parties involved in a lawsuit to each have the right to bump judges was unwise. The member said that extremist groups could use this right in nuisance lawsuits, joining multiple plaintiffs or defendants so that judge bumping could be continuous. The member said that there must be a mechanism to regulate the number of times one side can bump a judge.
A member described appearing before the legislature on multiple occasions in order to fight challenges to the judicial replacement right. The member said that the Committee should not attempt to supersede the judge replacement statute. The member said that putting the judiciary in charge of how the judge replacement right is exercised would be like putting the fox in charge of the henhouse. The member said elimination of the right entirely was not unlikely if a rule superseding the statute was adopted.
A member said that it was not accurate to conclude that parties bump judges strictly because of a the judge's perceived attitude to the party's position in the case. A bump might have nothing to do with the issues in the case but instead be based on the client's concern
The motion DEFEATED 2-17.
Mr. McLean MOVED to amend page 65, lines 64-65 of the proposal to limit a party's right to demand a change of judge after remand when the party had earlier filed a demand for change of judge. Judge Nelson seconded.
A member said that the language of the motion--just because a party files a demand for change of judge does not mean the demand is granted. The member suggested using the word "granted" instead of "filed." The language of the motion was changed by unanimous consent.
The motion CARRIED 18-1.
Judge Schmalenberger MOVED to add language to page 63, line 26 of the proposal consistent with the change approved under the previous motion. Judge Leclerc seconded.
A member said that it would be inappropriate to add the proposed language in paragraph (a)(4) of the rule. The member said that if the right to bump a judge is a right that can be exercised only once, this should be stated earlier in the rule.
A member said if the Committee approved the proposed change, it might as well delete the whole paragraph because the proposed change would eliminate the change of judge rights specified in the paragraph, i.e., the right to bump a judge during different stages of a divorce action.
A member said it was important to specify somehow that the right to bump a judge was a right that a given party could only exercise one time in a given action. A member suggested that it be added to the section where the presiding judge's role is outlined.
The motion DEFEATED for lack of majority 9-9.
A member pointed out that subdivision (d)--the existing Rule 3.3--did not mesh well with the newly proposed material. The member said that the focus of the subdivision was on ways for judges to avoid continuing to handle a matter, and that it was being used
A member commented that the Committee had worked extensively to develop existing Rule 3.3 and having the change of judge provisions added in on top of this made the rule very confusing. The member said that the change of judge language should be separate.
Judge Hagerty MOVED to leave Rule 3.3 unamended and to create a new rule using the proposed amendments. Judge Bohlman seconded.
A member commented that the proposed change of judge rule was not an improvement on what the legislature did in the statute and that Rule 3.3 should be left alone and the change of judge procedure left in the statute.
A member said that the proposal would expand the rights of litigants and that it should be in a rule, not a statute. The member said it made sense, though, to make the change of judge rule a separate rule.
A member said that splitting the change of judge material out into a separate rule was appropriate because the proposal, at present, contained two different subjects. Another member agreed that the existing rule should be kept unaltered and that the change of judge material should be in a different rule.
The motion CARRIED 17-2.
A member commented that having a rule only including the new change of judge after appeal right would be acceptable. The member said that the rest of the proposal was unacceptable because it was not an improvement on the statute.
A member said that taking on the legislature by superseding a statute was not a good idea given that the proposed rule was no improvement on the statute. The member said it was also not a good idea to have a new rule containing only the post-appeal change of judge provision because parties could already obtain such a change of judge by motion to the Supreme Court.
A member said that it was clear that the courts had power to establish rules regarding requests for judge changes, given that the Supreme Court has expanded the right through case law. The member added that the right to change judge after appeal did not seem to be a very extensively accepted right and that adding a rule just to provide this right might not be appropriate.
A member said that changing judges is always an emotional issue. The member said that perhaps the Committee needs to reflect before superseding the change of judge statute. Another member added that the new rule as proposed did not eliminate the uncertainty regarding whether a party could get more that one bump, and that additional reflection was required on how to eliminate this.
The motion to approve proposed amendments in the form of a new N.D.R.Ct. 3.4 entitled Demand for Change of Judge was DEFEATED 3-17.
RULE 46, N.D.R.Crim.P. - RELEASE FROM CUSTODY (PAGES 88-111 OF THE AGENDA MATERIAL)
Staff explained that amendments to Rule 46's provisions regarding bail sureties had been suggested by court administrative personnel. Staff explained that the proposal before the Committee included the proposed changes and additional form and style changes based on the recent amendments to Fed.R.Crim.P. 46.
Judge Hagerty MOVED for approval of Rule 46 as amended. Judge Geiger seconded.
A member said that the administrator who recommended that the Committee look at the rule said the proposed changes reflect the concerns expressed. A member commented that allowing 90 days for sureties to apply to set aside a bail forfeiture seemed like a very long time--the member said sureties get notice as soon as a defendant fails to show up and should not need 90 days to decide whether to ask for a forfeiture to be set aside.
A member said that sureties are entitled to get back some of the forfeiture if they produce the defendant. A member added that it makes sense to give them 90 days to challenge a forfeiture since they have 90 days to pay on the forfeiture.
A member said that people who are ticketed for a variety of offenses post cash bail and this bail may be used to pay their fine. The member said this system had worked well and had saved the state many thousands of dollars. The member said it was not desirable to
A member said that the rule seemed inconsistent with N.D.C.C. § 26.1-26.6-09 which allows a refund for surety who returns a defendant who failed to appear.
A member question the wording referring to "any surety." The member asked whether there would ever be more than one surety on a bond. A member answered that this was possible when necessary to get adequate backing for a bond.
Mr. Kuntz MOVED to amend language on line 107 to substitute the word "the" for the word "any." Judge Simonson seconded. The motion CARRIED unanimously.
A member asked why an agent should be suspended when a surety defaults.
Mr. Kuntz MOVED to amend language on line 117 to delete the words "and its agent." Mr. Kapsner seconded.
A member said that the agents in many cases are the sureties, they assemble groups of backers to secure bail and control which company writes the bond. A member said that agents are often the ones who have the duty to make the actual pay off when bail is forfeited. The member said that if there is a delay in payment, it is often the agent who is responsible.
A member that the surety responsible to make payment should be suspended if there is no payment and other sureties or agents should not be affected. A member commented that the statute cited previously suggested that the insurance commissioner may be responsible for suspending agents, not the courts.
A member said that the rule is necessary because problems with agents refusing to pay are not uncommon. Judges need the power to suspend agents to make them comply with surety obligations.
A member suggested that the insurance commissioner has jurisdiction to discipline agents. A member responded that suspension of a surety or agent under the proposed language of the rule is a limited punishment since it only extends as far as the district judge's jurisdiction. A member expressed concern that even this sort of suspension would impinge on the insurance commissioner's licensing powers.
A member replied that a suspension under the rule would not be a license suspension but a suspension from issuing bonds within a judge's jurisdiction, which is within a judge's power.
A member said that under the statute the insurance commissioner has only the power to control an agent's license. The member said that allowing the courts to suspend an agent's operations within a district would not impinge on the commissioner's power.
The motion DEFEATED 9-11.
A member asked whether N.D.C.C. § 26.1-26.6-09 conflicted with the proposed amendments. Staff was assigned to research whether additional amendments should be made to conform with N.D.C.C. § 26.1-26.6-09.
The meeting recessed at approximately 4:30 p.m., on September 23, 2004.
September 24, 2004 - Friday
The meeting was called to order at approximately 9:00 a.m., by Justice Dale V. Sandstrom, Chair.
RULE 46, N.D.R.Crim.P. - RELEASE FROM CUSTODY (PAGES 88-111 OF THE AGENDA MATERIAL)
Discussion resumed on Rule 46.
Staff reported on N.D.C.C. § 26.1-26.6-09 and its potential conflict with the proposed amendments to Rule 46. Staff reported that the statute seemed to impose a substantive obligation to make refunds to bonding companies under certain circumstances. Staff suggested that no modification was necessary to the proposed rule because the remission provision allowed courts to make refunds under the circumstances outlined in N.D.C.C. § 26.1-26.6-09.
A member said that the problem which precipitated the Committee's examination of Rule 46 appeared to be an administrative problem, and mostly a problem about how to deal with bond money. The member said that this did not seem to be a judicial problem and that
A member responded that the judiciary needs to be involved with problems in court administration and the rule needed to be amended to give the judges and the court staff guidance. The member said that the administrator who requested the Committee look at this problem was looking for guidance and, in particular, time guidelines for resolving forfeiture issues.
A member said that under N.D.C.C. § 26.1-26.6-09, a refund is due the surety only when the bondsman returns the defendant to the court. The member said that when this happens, it happens in a short time after forfeiture because the bondsman hired a bounty hunter to retrieve the defendant. The member said most of the time when a defendant shows up in court more than six months after forfeiture is when law enforcement picks the defendant up. The member said the statute would not have much impact under normal circumstances.
A member said the statute gave sureties a substantive right. The member said any procedural changes to the rule would not alter this right. The member asked, if a bond gets forfeited and the bond money is collected within 90 days, what happens to the money and how can it be remitted if the bond company tries to take advantage of the statute?
A member said that bail forfeitures generally go to the fines fund or the general fund. A member asked how a bond company could then get their money back. A member said that orders had been issued against the state demanding return of money in the past.
A member said there were some problems addressed by the proposed amendments that were primarily clerical and administrative. The member said, however, that there were larger problems that the proposal solves, such as what needs to happen once a forfeiture is declared in order to actually obtain the forfeited funds. The member said the proposal laid out a process.
A member questioned whether the process set out by the proposal needed to be in the criminal procedure rules. The member said that the existing rule already gave courts jurisdiction over sureties and a mechanism to handle forfeitures.
A member said that if the Committee did nothing about this issue, some other committee, such as the presiding judges, would decide what procedure to implement. Another member said that if there was going to be a procedure for handling bond forfeitures, it should be in the rules so people affected could find it.
A member said that, under the current rule, someone seeking to recover on a forfeited bond merely had to bring a motion. A member responded that the proposed amendment had value because it set deadlines for the such a motion and set out a procedure. A member said this procedure also would apply to city courts and it would be of value to city court clerks to point to rule when questions arose about bond forfeiture procedure.
A member explained that state's attorneys do not generally file formal motions on bail forfeitures--instead they make oral motions at the time the defendant fails to show. The member said that in such a case a surety might not get notice of the forfeiture.
A member pointed out that the proposed amendment also had a punitive aspect, allowing suspension of sureties who did not pay up within 90 days of forfeiture. The member said this punitive provision would be useful and provide guidance to judges. The member noted that it was not unusual for sureties to fail to pay timely on a forfeited bond.
A member agreed that the proposed amendment provided a good mechanism to enforce payment on forfeited bonds. A member related that it was a costly process for sureties to retrieve absconding defendants. A member said that N.D.C.C. § 26.1-26.6-09, which gives sureties a right to refunds when they return defendants, arose out of the Kyle Bell case and involved a defendant who skipped a substantial bail and was returned after significant effort by the bondsman.
A member suggested that merely adding a requirement to the current rule forcing prosecutors to make formal motions to recover forfeited bonds would solve the problems pointed out by the clerks. A member responded that such a change would only deal with a tiny part of the problem. The member said it was particularly important to have the proposed 90-day deadline for sureties to request a forfeiture be set aside. The member said there needed to be more structure than provided by the current rule.
The motion to approve the rule as amended and send it to the Supreme Court as part of the annual rules package CARRIED 15-4.
PROPOSED N.D. Sup. Ct. Admin. Order 16 - ELECTRONIC FILING PILOT PROJECT FOR THE DISTRICT COURTS (PAGES 112-116 OF THE AGENDA MATERIAL)
Staff explained that the court administrator had observed interest among district court
Judge Schmalenberger MOVED for approval of N.D. Sup. Ct. Admin. Order 16. Judge Leclerc seconded.
A member said that electronic filing pilot projects had been proposed and two courts were in the process of buying equipment to put the projects in place. The member said this was part of the enhanced records management project.
The Chair said that the goal of the enhanced records management project was to create an electronic record in every district court case. The Chair said that Stark and McLean counties were pilot counties for the project. These counties are setting up to scan all material their clerks receive and to file the scanned materials into an electronic filing system.
The Chair said that the main problems with the current system are that paper files are not always accessible in all cases by everyone who needs them and that documents cannot always be added to the files in a timely and accurate fashion. The Chair said with enhanced records management court files will always be available and updated and files will be viewable from wherever the judge may be.
The Chair said that the enhanced records management program, to begin with, would rely on scanning to create electronic documents. The Chair said the Supreme Court, however, was now filing electronic documents sent by email or fax.
A member said that electronic filing was inevitable but it was probably too early to have a rule, especially before the pilot projects had even begun and before court staff was trained to deal with electronic documents.
A member responded that judges are getting more and more documents by email, such as proposed orders. The member said that there are many documents that it would make sense for the courts to receive by email and that establishing a rule would be a logical step. The member also said that a higher surcharge should be imposed in the rule for documents longer than 20 pages to discourage overly long documents.
A member commented that the issue of electronic filing had been hovering in the background for many years. The member said that the message coming out of technology conferences on the subject was that courts should not move too fast to put in a system. The member said electronic filing works best in simple matters, such as small claims and
A member asked whether it was envisioned under the proposal that documents would be filed electronically and then printed out and made part of a paper file. Staff explained that the procedure in the Supreme Court when a document was e-filed was to print the document out. The conclusion was that in counties with enhanced records management, no paper copy would be needed while in others counties, e-filed documents would need to be printed out and added to the paper file. The rule was designed to allow clerks in all counties, not just enhanced records management counties, to receive e-filed documents.
A member asked whether, under enhanced records management, documents would be accessible merely by logging on to the existing unified court information system. A member responded that this was the ultimate goal of enhanced records management. The member said all clerks now have UCIS and all judges can have it.
A member said that it is important for judges to be able to continue to access paper files so as to understand the history of a case and see all the documents together. The member said it would not be a good alternative to have to print everything in a file out from the computer or to try to work with images on a screen.
A member responded that the goal of enhanced records management was to eliminate paper entirely. There would be no paper file--however, the electronic file could be accessed simultaneously by anyone who wanted it without the chance of it being missing or being unavailable. A member said one purpose of the pilot project would be to see things work in practice without a paper file.
The Chair said most of the motions filed without the Supreme Court were being filed electronically and that an increasing number of briefs were being filed electronically because this was a lower cost option for litigants.
A member asked if electronic service would go along with e-filing. Members pointed out that the proposal has an e-service provision. A member asked how technological incompetents or pro se litigants would be able to deal with documents served on them electronically.
The Chair explained that the model the state courts were working on was one that would use existing technology, such as service by email, rather than imposing a proprietary system. A member observed that it was presumed under the rule that if a party has an email address, that party can receive email service of a document. The member said that it was
Staff explained that the Supreme Court's e-filing rule was developed in two stages, with e-filing first, and then when that worked, e-service added. Staff indicated that it did not make sense to have e-filing without e-service.
A member said that the Supreme Court does not confront the same challenges that trial courts do when it comes to filing of documents, particularly in civil practice. The member said that a trial court judge typically needs to go through 20-30 documents to prepare for a hearing, while the Supreme Court has all the information it needs in party briefs. The member also said that bankruptcy court, which relies on e-filing, also has not had to deal with the problems e-filing might create in trial court because evidence is not filed in bankruptcy court.
The member said a major problem with e-filing in trial courts would be how the gatekeeper function would be exercised. The member said it would not be surprising if pro se litigants started e-filing new documents every day.
A member said that it would be unwise to defeat this proposal based on a desire not to see e-filing. The member said it is necessary to try different things to see if they work. The member said e-filing had to be looked at in practice to see whether it would work.
A member said that, because of spam filters, people have lost confidence in whether their email is received. The member asked how attorneys would know whether their e-filed documents had been received. Staff explained that the clerks are required to send acknowledgment of receipt and filing. If no confirmation is received, the attorney will know the e-filed document was not received.
A member said that e-filing confirmation might not be a problem, but added that e-service is a problem area since no one would know whether their opponent had received an e-served item unless that opponent voluntarily sent confirmation. A member suggested programming email to provide a "read receipt." Members suggested that this was not foolproof.
A member said the proposal seemed like a good first step because it primarily provided attorneys with an alternate method to get a document into the clerk's hands and into the paper file--emailing the document instead of mail or delivery. The member said that e-service was a bigger problem, especially because effective service was a nebulous issue when service was by email. The member also said it was unclear how the three day rule and other
A member said that the rule provision allowing service by fax only when email service was not possible was inappropriate. The member said that some attorneys are adamant about never releasing their email address because this can create unlimited access for clients and others seeking 24/7 responses. The member said that these attorneys would need to rely on fax for electronic service.
A member said that as new rules were established to provide new service methods, the rules continue to shift toward a "zero-deadline" through eliminating the three day rule and the leeway it gives. The member said human nature is to wait until the last day to meet a deadline. The member said that if the email doesn't go through or some other technical problems occurs when trying to e-file and e-serve, failing to meet the "zero-deadline" is a likely result. The member said there had to be some way to insert protections into the rule.
A member also asked why paying fees was necessary as part of e-filing. The member asked why should the client pay for filing documents when they do not pay now. The member asked if attorneys would be getting bills for 50 cents. A member replied that the payment is required so the document can be printed for judges who will not use the computer.
Mr. Kuntz MOVED to change ".50" on page 114, line 32, to ".10." Ms. Moore seconded.
A member said the cost of running a printer was not 50 cents a page--most firms charge their clients 5-10 cents a page to make copies. A member responded that someone has to pay for the copies and someone has to do the copying, whether it's lawyers, clients, or taxpayers.
The Chair observed that lawyers submitting documents to the Supreme Court have no problem with paying the price because it is much less time consuming for a lawyer to compose and send an email than it is to print out and assemble a document and then have it shipped or delivered. The Chair also said there was no need to worry about length of delivery time when emailing as opposed to sending in the regular mail.
The motion CARRIED unanimously.
A member asked why the rule contained a preference for email filing and discouraged fax filing. Staff explained this was based on the Supreme Court rule and the Supreme Court had not accepted fax filing at all prior to the rule, unlike the district courts who have accepted
Ms. Moore MOVED to delete language regarding fax transmission on line 22 and lines 46-48. Ms. Schmitz seconded.
A member observed that the proposal was denominated as a Supreme Court administrative order and asked whether that was because it was a pilot project order. The Chair explained that when a new procedure becomes available, not everybody wants to use the procedure. The Chair said pilot projects allowed attorneys and court personnel the chance to build their confidence with the new procedure.
A member said that if the Committee was going to eliminate the preference for email over fax filing, that fax filing should simply not be mentioned in the rule. The member said the focus of the rule was on email filing and that N.D.R.Ct. 2.2 governed fax filing. The member suggested the rule deal only with the subject of email filing.
Mr. Kapsner MOVED a substitute motion to delete lines 21-23 and 46-48 referring to fax filing. Judge Leclerc seconded. The motion to substitute CARRIED unanimously. The substituted motion CARRIED unanimously.
A member asked what procedure would be followed for the adoption of the proposed administrative order. The member said that there were some complex problems created by the electronic service portion of the rule and modification of the procedural rules might be necessary if electronic service is implemented.
A member said that the electronic service portion of the rule needed work, but that the goal of any modification should be simplicity, such as requiring an electronic certificate of service or affidavit of service to establish that a document had been e-served. The member suggested that people serving documents electronically should also retain a copy of the sent email because this establishes when the item was sent.
A member said that it was not clear whether the three day rule, which applies to service by mail or commercial carrier, would apply to e-service. The member noted that fax transmissions have been specifically excluded from the three day rule. The member said language should be added to the order indicating how the three day rule would apply to email filing and service.
A member suggested that staff be assigned to supply language on the three day rule for review at a future meeting. A member suggested that language simply be added to the
A member said that perhaps the rule should be amended to allow e-filed documents to be e-served only when the recipient consents to e-service. The member said that allowing agreements to use email for service was better than cramming e-service down an opponent's throat.
The Chair said the it was desirable to have e-service when e-filing is used because a document should reach the other party as soon as it reaches the court. The court will get an e-filed document immediately--if the document is not e-served, the judge will have had it for several days before the other party even gets to look at it. Having e-service in tandem with e-filing will help prevent parties from being blindsided by something that has been e-filed.
A member responded that attorneys who do not have email, or are not astute is using it, will still be blindsided when a document is e-filed.
Ms. Schmitz MOVED to add a new subsection (4) on page 115, after line 50 providing that "any document electronically served must be treated as if it were mailed on the date of transmission for purposes of computation of time." Mr. Sturdevant seconded.
A member asked whether just using the language from N.D.R.Civ.P. 6 instead of the new proposed language would be preferable.
The motion CARRIED unanimously.
A member said that allowing items to be e-filed until 11:59 p.m., was too late. Staff explained that this provision was added to the Supreme Court's e-filing rule because the Supreme Court is always open.
Ms. Moore MOVED to add language to page 114, line 26, providing that documents must be submitted "by the close of normal business hours" rather than 11:59 p.m. Mr. Hoffman seconded.
Members said that clerk's offices close at different times: 5:00, 4:30, noon on summer Fridays. A member said this is why the proposed language specified close of business hours rather than a time.
Judge Leclerc MOVED a substitute for Ms. Moore's motion, extracting language from N.D.R.Ct. 2.2 and making it part of the proposal. Judge Simonson seconded.
A member said that use of the term "normal business hours" in the original motion and the substitute version might create a trap for the unwary. A member said that in the substitute motion, filing is complete when the transmission is received, whenever that may be, but the filing does not get processed until the next day the court is open. Members suggested this could still create problems if a party sent the document thinking the courthouse was open when it had in fact closed early for the weekend.
A member said that it was difficult to say what the "normal business hours" were for rural courthouses, especially in the summer in courthouses without air-conditioning. A member said that some specific time should be chosen to put in the rule to ensure certainty.
Mr. Kapsner MOVED to amend Ms. Moore's motion to read "5:00 p.m." Judge Foughty seconded.
Judge Leclerc obtained unanimous consent for the withdrawal of his substitute motion.
Mr. Kapsner's motion to amend CARRIED unanimously. The amended motion CARRIED unanimously.
Ms. Schmitz MOVED to add language to the end of line 26 providing that "a document filed after 5:00 p.m. will be considered filed on the next business day." Judge Leclerc seconded.
A member asked whether the proposed language was necessary. The member said the effect of filing after 5:00 p.m. was apparent from the rule. The member also said that with the three-day rule applicable to e-filing, filing on a weekend would not adversely affect a deadline.
A member said that court staff were use to dealing with paperwork. The member said that court staff will get use to dealing with e-filed documents, but the process will be easier if the rules for dealing with electronic documents are similar to the rules for paper. The
The motion CARRIED unanimously.
A member asked whose clock would be used to determine whether a document was submitted by 5:00 p.m. The member said that in a law office, every computer typically shows a different time. A member responded that the time shown on clerk computers was being coordinated by ITD and that the time used by the clerks would likely be the time the document was recorded as received on the clerk's computer. A member responded that lawyers tend to push to the very limit, and this lack of synchronization might lead to late submissions by lawyers.
Judge Geiger MOVED to add language to line 7 indicating that the order would apply only to pilot project locations. Judge Foughty seconded.
A member said that the question raised by the motion was whether e-filing should apply statewide or only in a limited number of locations. A member said this issue was an administrative problem that should be addressed by the state court administrator. A member said that it was the state court administrator who asked that the issue be discussed and that there was no suggestion that e-filing be limited only to certain counties.
A member said that the enhanced records management pilot project was something different than the pilot project contemplated by the proposed order, which would allow for electronic filing in all counties. A member said that putting limits on where e-filing was allowed would cause confusion among attorneys.
A member said that by developing a statewide rule the Committee was exceeding its authority and encroaching on the role of the court administrator. The Chair pointed out that the rule was not dependent on a county having enhanced records management for e-filing to occur--the county would only need to have email.
A member said that if e-filing was going to apply to all counties and all clerks it should be integrated into the procedural rules and not go out as a pilot project. A member responded that administrative orders were more flexible and easier to modify if necessary. A member agreed that it would be more useful to implement e-filing in an order because the need for fine tuning was inevitable.
The motion DEFEATED 9-11.
The motion to approve the rule as amended and send to the Supreme Court as part if the annual rules package CARRIED 19-0.
RULE 702, N.D.R.Ev. - TESTIMONY BY EXPERTS (PAGES 117-135 OF THE AGENDA MATERIAL)
Staff explained that the model for Rule 702, Fed.R.Ev. 702, had been amended in 2000 and the Committee had not yet considered whether to include the amendments in the state rule. Staff explained that the proposal before the Committee contained the federal amendments, which were developed in response to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
Mr. Plambeck MOVED for approval of Rule 702 as amended. Judge Schmalenberger seconded.
A member observed that North Dakota had not adopted a version of Fed.R.Ev. 703. The member said that Rule 703 is more important than Rule 702 and that the Committee should consider the changes to both rules together. The member said that if the Committee adopted the proposed changes to Rule 702, it would essentially be telling the Supreme Court to adopt Daubert.
A member said that the proposed changes should not be adopted because the changes are not supported by the decisions of the Supreme Court, which has not adopted Daubert. The member also said that at least 90 percent of the experts in North Dakota courts are physicians, accountants, custody evaluators and real estate appraisers. The member said none of these experts really can be evaluated under Daubert standards.
A member said the changes should be adopted because they would provide additional guidance to the trial courts. The member said that while the Supreme Court had not yet adopted Daubert it had also not rejected it. The member said that Daubert and Kumho Tire were interpretations of Fed.R.Ev. 702, which had been adopted unchanged in North Dakota. The member said that, traditionally, the Supreme Court has found federal interpretations of rules to be persuasive guidance in interpreting similar North Dakota rules.
The member said commentators do not agree whether Daubert and Kumho Tire will
A member said that adoption of Daubert principles in North Dakota is not appropriate. The member said the rule we have works. The member also said state courts handle matters foreign to federal court, such as custody disputes. The member said these cases involve psychologists and custody evaluators who are allowed to testify based on having a license, which is informal, but works. The member said the Daubert criteria better fits matters like accident cases, where accident reconstructors may have limited credentials.
A member replied that the situation in custody cases provides an argument for change. The member said many experts in domestic relations cases provide testimony that is not based on any kind of science or learning, including psychologists, play therapists, and related experts. The member said the changes should be adopted.
A member said such problem experts could be eliminated under the standards of present rule 702. A member replied this was not possible if 702 needs to be interpreted in a liberal manner.
A member said North Dakota's Stein case adopted the essential reliability element of the Daubert test, but that Stein came out before the formal adoption of N.D.R.Ev. 702 and is not an interpretation of that rule. The member also said the proposed changes to Rule 702 were not a blanket adoption of Daubert and Kumho Tire but an articulation of a reliability test similar to the Stein test.
A member said that there are good arguments for having a tool to get rid of junk science in the court system, but the way the proposed amendments are structured requires judges to make judgments they are not qualified to make. The member said that judges are not qualified to decide expert testimony matters based on scientific training so they instead decide based on their own predilections about how the tort system should work. The member guessed that if North Dakota's district judges were surveyed, most would not want to adopt Daubert.
The motion to approve Rule 702 as amended CARRIED 10-8. Because the motion to approve gained less than a two-thirds majority, the rule will not be sent to the Supreme Court but considered again at a future meeting.
Staff explained that the Clerk of the Supreme Court had requested a change to Rule 11.2 requiring attorneys seeking to withdraw in matters on appeal to address their applications to the Supreme Court.
Judge Leclerc MOVED for approval of Rule 11.2 as amended. Judge Foughty seconded. The motion CARRIED unanimously.
RULE 11, N.D.R.Civ.P. - SIGNING OF PLEADINGS, MOTIONS AND OTHER PAPERS; REPRESENTATIONS TO COURT; SANCTIONS (PAGES 139-156 OF THE AGENDA MATERIAL)
Staff explained that attorney Lynn Boughey had requested that Rule 11 or its explanatory note be amended to clarify the attorney signing requirement.
Judge Hagerty MOVED to indefinitely postpone consideration of Mr. Boughey's proposal. Judge LeClerc seconded.
A member said that, whether an attorney signs a document or not, the attorney is bound by Rule 11.
A member said it seemed that this was an example of someone who did not like a judge's ruling trying to get the rules changed.
Mr. Sturdevant MOVED a substitute motion that the Committee deny Mr. Boughey's request to amend Rule 11. Mr. Kuntz seconded. The motion to substitute CARRIED unanimously.
Mr. Sturdevant's motion CARRIED unanimously.
The meeting adjourned at approximately 11:30 a.m., on September 24, 2004.
Michael J. Hagburg