MINUTES OF MEETING
Joint Procedure Committee
April 29-30, 2004
TABLE OF CONTENTS
Rule 16, N.D.R.Civ.P. - Pretrial Conferences; Scheduling; Management 3
Rule 62, N.D.R.Civ.P. - Stay of Proceedings to Enforce a Judgment; Rule 8, N.D.R.App.P. - Stay or Injunction Pending Appeal 4
Rule 41, N.D. Sup. Ct. Admin. R. - Access to Judicial Records; Rule 3.1, N.D.R.Ct. - Pleadings; Appendix G - N.D.R.Ct 6
Rule 6.1, N.D.R.Ct. - Continuances 13
Rule 39.1, N.D.R.Civ.P. - Change in Location of Hearing, Proceeding, or Trial; Change of Venue 14
Rule 8.2, N.D.R.Ct. - Interim Orders in Domestic Relations Cases 16
Rule 3.1, N.D.R.Ct. - Pleadings 17
Rule 40, N.D.R.Civ.P. - Assignment of Cases for Trial 25
Form 25, N.D.R.Civ.P. - Scheduling Statement 25
Rule 3.2, N.D.R.Ct. - Motions 26
Rule 10, N.D.R.Crim.P. - Arraignment 26
Rule 11, N.D.R.Crim.P. - Pleas 28
CALL TO ORDER
The meeting was called to order at 1:00 p.m., on April 29, 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
Professor Linda Bata (April 30 only)
Mr. Michael R. Hoffman
Mr. John C. Kapsner
Mr. Daniel S. Kuntz (April 30 only)
Mr. Ronald H. McLean
Ms. Sherry Mills Moore
Mr. Steven W. Plambeck
Ms. Cathy Howe Schmitz
Mr. Galen J. Mack
Mr. Michael G. Sturdevant
The Chair set out the schedule for the meeting and confirmed that the Committee's next meeting will be in Bismarck on September 23-24, 2004.
APPROVAL OF MINUTES
Ms. Schmitz MOVED to approve the minutes. Ms. Moore seconded. The motion to approve the minutes CARRIED unanimously.
The Committee had a brief discussion on the format of the minutes. The Chair reviewed the practice used in documenting discussion in the minutes: the names of members who make and second motions are recorded as are the names of members who ask that there vote on an issue specifically be noted. However, the names of people who raise points or make comments in the course of discussion are not noted.
The Chair said there had been inquiry about why the Committee's minutes do not note the names of members who raise points and make comments. The Chair stated that the
understood reason for the practice, which has prevailed in the Committee since 1992, was to allow more freewheeling discussion among Committee members. The Chair asked for comments from the Committee's members on whether this practice should continue or whether members who make comments should be identified in the minutes.
A member who had been on the Committee when the policy originally was adopted said that the policy was adopted because it had been the Committee's practice to use outside secretaries to prepare the minutes and these people generally had much difficulty in properly identifying members in the minutes.
Several members commented that it was unnecessary to identify members who made comments in the course of a discussion. A member said that if the policy was changed, much time would likely be spent on correcting the minutes if members believed their positions were not properly recorded or if identifications were mistaken.
A member asked whether the tapes of the meetings were kept. Staff replied that they had been retained at least since 2001.
The Chair said that, based on the consensus of the Committee, the current practice of not recording member names in the minutes of Committee discussions should be continued. The Chair directed staff to continue retaining the tapes of Committee meetings.
RULE 16, N.D.R.Civ.P. - PRETRIAL CONFERENCES; SCHEDULING; MANAGEMENT (PAGES 30-26 OF THE AGENDA MATERIAL)
Staff reviewed actions taken by the Supreme Court to supplement the Committee's proposed amendments to Rule 16. Staff advised the Committee that the Supreme Court's amendments to the rule would take effect August 1, 2004.
A member commented that there was some indication that a group would be getting together at the bar convention with the intent of proposing some modifications to Rule 16 as amended by the Supreme Court. The member said it was important that any proposals for changing the rule be submitted in July so that the Court would have time to consider them before the effective date of the amended rule.
The member said that any modification proposals would likely be aimed at eliminating the case age based triggering events the Court inserted into Rule 16. A member commented that it was important to come up with something more realistic and easier to deal with than the measures imposed by the Court. A member said that there will be a small
industry in Rule 16 conferences if the rule as amended takes effect.
A member said it was not unusual to have cases that have been served out and not filed for more than a year. The member said it was not a good idea to have cases out there where parties were using the power of the court without the court knowing anything about the case. The member said it seemed likely that such delayed filing would become more common if the Court's changes to Rule 16 take effect.
A member commented that case management studies have shown that it is advantageous for the courts to take control and manage cases as early as possible. The member said that the Court's Rule 16 changes were unlikely to create any significant problems because various judges have been doing similar things for a long period of time across the state.
RULE 62, N.D.R.Civ.P. - STAY OF PROCEEDINGS TO ENFORCE A JUDGMENT; RULE 8, N.D.R.App.P. - STAY OR INJUNCTION PENDING APPEAL (PAGES 59-86 OF THE AGENDA MATERIAL)
The Chair welcomed John Olson, an attorney representing Philip Morris USA, who appeared to answer any Committee questions about the proposed changes to N.D.R.Civ.P. 62 and N.D.R.App.P. 8. Mr. Olson updated the Committee on developments in the adoption of appellate bond limits in other jurisdictions.
The Chair explained to the Committee that, because the proposed amendments to N.D.R.Civ.P. 62 and N.D.R.App.P. 8 were being brought back to the Committee after failing to gain two-thirds majority support at the January 2004 meeting, the pending question before the Committee was whether the proposed amendments should be approved.
Staff explained that alternate drafts of the proposed amended rules had been prepared to incorporate a mechanism that would allow an appellate bond amount to be set based on the appellant's net worth.
Judge Geiger MOVED a substitute motion, proposing that the Committee consider approval of the alternate drafts. Ms. Schmitz seconded.
Various members said that the proposal to allow appellate bonds to be set based on the appellant's net worth could be counterproductive because it could lead to additional litigation as part of the bonding process. A member said that expert witnesses such as accountants might need to be hired to determine appellant net worth. The member said that
a simple dollar amount limit was much easier to deal with.
A member raised the point that many appellants of humble means are covered by insurance which could be tapped to pay a judgment. The member said that it would be unfair for such people to be protected by the "net worth" cap set out in the alternate drafts.
A member asked whether it was possible to draft an exception to the proposal to eliminate insured parties from protection under the "net worth" cap. The member said that allowing net worth to be considered in determining maximum bond amount would be useful in commercial cases involving small businesses. The member said insurance is generally not available to cover judgments in commercial cases, which often involve significant amounts of money, but not enough money to invoke the high caps approved by the Committee at the January meeting.
A member said that the proposed alternative drafts were ill advised and that the Committee should approve the original proposals, which had received a majority vote at the January meeting. The member said that certain parties, such as doctors sued as individuals or religious groups, might be able to demonstrate zero net worth and then courts would not be able to impose any bond cap on them to protect other parties.
A member said that the "net worth" cap language seemed unclear because it was not certain whether it applied to corporations and other business entities.
A member said the "net worth" cap was unnecessary because the language of the rule does not set a specific bond amount. The bond amount is discretionary with the court, and the court is allowed to take an appellant's financial condition into account when setting the bond. The member said that the cap approved by the Committee simply puts a $50 million upper limit on appellate bonds--but the bond itself can be any amount below the upper limit. The member said allowing courts discretion to set the bond amount was more protective of North Dakota businesses than any new rule the Committee could devise, since no court would want to put a local company out of business.
A member commented that the fact that GNDA, the Farm Bureau and the Petroleum Marketers all supported the $50 million cap without a net worth option suggested that businesses in North Dakota were not seeking a "net worth" cap.
The motion to substitute the alternate drafts was DEFEATED on a voice vote.
The Committee returned to discussion of the amendments as approved by the Committee at the January meeting. Staff confirmed that the only comments received on the
approved amendments were those that had been distributed to the Committee in the meeting material.
The pending motion to approve the proposed changes to N.D.R.Civ.P. 62 and N.D.R.App.P. 8 and to send the rules to the Supreme Court CARRIED 15-1.
RULE 41, N.D. Sup. Ct. Admin. R. - ACCESS TO JUDICIAL RECORDS; RULE 3.1 - N.D.R.Ct., PLEADINGS; APPENDIX G - N.D.R.Ct. (PAGES 37-58 OF THE AGENDA MATERIAL)
Staff reviewed actions taken by the Committee on court system privacy measures at its April 2003, September 2003, and January 2004 meetings and reviewed proposed amendments to the Administrative Rules and Rules of Court that would implement the privacy measures suggested by the Committee.
Mr. Kapsner MOVED for approval of the alternate version of Rule 3.1. Judge Schmalenberger seconded.
A member asked whether requiring redaction of all but the last four digits of confidential numbers would be helpful. A member said it made sense because this was the policy being used by businesses with credit card receipts--displaying only the last four digits of account numbers.
A member said that the alternative approach seemed to make more sense than the approach the Committee had previously debated because it focused on limiting the filing of documents containing confidential numbers. The member seemed the approach to be the best compromise.
A member said that if the last four digits of pertinent numbers are made part of the file this limits confusion because the court and parties can understand which account or credit card is being talked about.
A member observed that it would be helpful to know what approach Minnesota was going to take, especially since they had planned a special task force conference to address confidentiality issues related to court records. The member also said that the proposal did not go far enough in terms of the confidential numbers protected, and that the lists of protected numbers and information types should expanded to include insurance policy numbers and other account numbers.
A member asked whether evidence submitted at trial is "filed" and thus subject to this rule. The consensus was that evidence submitted at trial is "filed." The member asked if all confidential numbers on evidence submitted at trial would need to be redacted according to the proposed amendments to this rule. Again, the consensus was that redaction was necessary.
A member said that Mr. Gladden's memo seemed to envision a system under which, when a document contained confidential numbers, the attorney would have to identify the document as containing confidential information so that the clerk would know to file it separately. The information would then be protected by filing in the separate location.
Judge Simonson MOVED to substitute the word "clerk" for the word "court" on page 41, line 48. Judge Schneider seconded.
A member asked whether the court administrator had considered how many documents might end up in the confidential side of the case file, especially in matters like divorce cases where many of the pertinent documents like tax returns contain personal information.
Staff explained that the intent of the rule was that documents containing personal information would not be filed unless needed, and if they were needed, the personal numbers would be redacted. Staff said that the intent of the rule was that documents with unredacted personal information would only be filed when required by statute, rule or policy, as in the case of QDROs.
Questions were raised about who would make the decision whether filing a documents containing personal information was necessary or required in a given case. A member observed that many documents in the child custody and support matters contained such numbers.
A member commented that in most non-domestic cases, a redacted number could be used in the judgment and other documents. The member said that in almost all domestic cases and cases involving children, full social security numbers needed to be used in the judgment. The member said that, under the rule as proposed, all such judgments would then become confidential documents stored in a separate part of the file.
Staff said that the rule as proposed allowed the court to order the parties to file a redacted copy of any document stored in the confidential part of the file.
A member said that valid concerns had been raised about how personal information
was handled under the proposed, but that the rule seemed to present the least disruptive method to protect personal information in court files from identity theft. The member said the Committee needed to make a choice on how to protect personal information in court files and that the method proposed in the rule seemed an acceptable choice.
The Chair commented that the Supreme Court already had experience in redacting personal information from electronically filed briefs.
A member suggested that all divorce and child support matters be made restricted files in their entirety. A member said the family support issue was a difficult one and it was important that child support enforcement have access to all the material in the file. A member responded that child support enforcement has access to restricted files.
A member said that other agencies, like licensing agencies, also sometimes need to know about child support orders and may not be able to access necessary material if it is placed in a restricted part of the file. A member said that credit agencies and landlords regularly seek information from court files.
Discussion returned to the pending motion. A member said that it was consistent with language elsewhere in the rule that the clerk, not the court, have control over case files. The motion CARRIED unanimously.
Judge Leclerc MOVED to add the phrase "or other financial account" to page 41, line 44. Judge Simonson seconded.
A member noted that every check has an account number on it. The member asked if, in bad check cases, all the checks presented in evidence would have to be redacted under the proposed rule. The member said that checking account numbers go out to the public every time a check is written and therefore do not seem to be as confidential as some of the other numbers being discussed. The member said applying the redaction requirement to checks would cause havoc in bad check cases.
Several members asked what the meaning of "must be" was on page 41, line 44. The members asked for examples of when financial account numbers "must be" included in pleadings. A member replied that they are often included in divorce stipulations.
Without objection, the pending motion was amended to include inserting the word "are" in place of the term "must be" on page 41, line 44.
A member commented that checks would be a problem if this rule is applicable to
criminal cases. The member said that check evidence would end up being altered significantly if all account numbers appearing on a check were redacted.
A member asked whether the Committee was trying to micromanage the rule too much. The member commented that the only "financial account numbers" anyone had raised concerns about protecting were check numbers. The member said you could say "non-checking account numbers" in the rule if there was a genuine concern that the inclusion of checking accounts as a protected number would be a problem. The Committee discussed what the term "non-checking account numbers" would include.
A member commented that many civil lawyers already do extensive redaction of evidence such as medical records--the member said that it would not be a huge burden for state's attorneys to redact personal information and account numbers from checks. Another member agreed that the redaction requirement was unlikely to be a big problem.
Motion to amend page 41, lines 43-44, CARRIED 11-5.
Mr. Kapsner MOVED to amend the section title on page 41, line 43 to substitute the term "financial account numbers" for the existing language. Judge Leclerc seconded. Motion CARRIED unanimously.
Ms. Schmitz MOVED to amend page 40, lines 35-36, to strike the detailed reference to credit, debit and electronic fund transfer numbers and replace it with the term "financial account numbers." Judge Simonson seconded. Motion CARRIED unanimously.
A member commented that the language of the proposed rule seemed repetitive and contained unnecessary separate paragraphs for social security numbers and financial account numbers. A member added that the language of the paragraphs also seemed conflicting because it contained instructions forbidding inclusion of personal information and then followed with instructions on how to include personal information.
Judge Bohlman MOVED to add language on page 40, lines 38-39, referring to legal requirements to include information in a document. Ms. Schmitz seconded.
Mr. Kapsner obtained unanimous consent to amend Judge Bohlman's motion to include the striking of page 41, lines 40-45, and the addition of more explanatory language on page 40, lines 38-39. Motion as amended CARRIED unanimously.
A member asked whether it was clear that the term "financial account numbers" always included credit, debit and electronic fund transfer account numbers. The member
said if this was not clear, perhaps these terms should be returned to the proposed rule amendments.
A member suggested that, given the proposed change, the word "must" on line 37 should be changed to "should."
Mr. Kapsner MOVED to amend page 40, line 38 to return the word "necessary" to page 40, lines 38-39. Judge Schneider seconded.
Judge Nelson MOVED to substitute a motion that would change the word "must" on page 40, line 37, to "should." Judge Bohlman seconded. Motion to substitute CARRIED unanimously. Substituted motion also CARRIED unanimously.
A member asked what the difference was between an "unredacted" pleading and a "non-redacted" pleading. The member suggested that one or the other might not be words. The consensus was that non-redacted should be used throughout the rule.
Judge Schmalenberger MOVED to amend page 41, line 46, to remove reference to parties being allowed to file non-redacted documents only when "required." Under the proposed change, parties would be able to file non-redacted documents according to the rule's procedure whenever they chose to do so. Judge Foughty seconded.
A member said that such a change would put a burden on the clerks because they would have to expand the number of documents in the restricted part of the file. A member commented that, if the proposed change was added to the changes already approved, the result would be that all mandatory provisions would end up being removed from the proposal.
A member said that the non-redacted filing provision should only apply to those documents that a party was required to file with non-redacted numbers, such as QDROs. The member said it should not apply to any non-redacted material a party wanted to file. The member agreed that allowing non-redacted material to be freely filed would place a burden on the clerks.
Other members agreed that "required by law" non-redacted filings needed to be treated differently than other filings. A member pointed out that the language of the non-redacted filing provision was unclear, especially as to what filings could be classified as "required."
Judge Hagerty MOVED to substitute an amendment on page 41, line 46-47, which
would reorganize the words in the sentence on lines 46-47. Ms. Moore seconded.
A member said the proposal allowing parties to file non-redacted documents whenever desired would be simpler for the clerks--either the personal information would be redacted and the document would be filed as usual or the lawyers would mark the document confidential and the document would be filed in the restricted portion of the file. Several members agreed that the language restricting parties from filing non-redacted documents except when "required" placed a restriction on filing non-redacted documents, but that it was unclear what the "required" language meant.
Motion to substitute CARRIED 12-4. Substituted motion CARRIED on a voice vote.
Ms. Moore MOVED to amend page 40, lines 35-36, to return a listing of the types of financial accounts to the proposal. Judge Bohlman seconded.
A member pointed out that definition of "accounts" in Section 41-04-04, N.D.C.C., did not seem to include credit card or similar numbers, especially electronic fund transfer card numbers. The member said a more defined explanation of the meaning of financial accounts would be useful.
Motion to add details on financial account types CARRIED on a voice vote.
Judge Bohlman MOVED to insert additional language "except where required by law" into page 40, line 38. Judge Nelson seconded.
A member pointed out that "required" was defined in the explanatory note as required by statute, policy or rule.
Motion CARRIED on a voice vote.
Mr. Hoffman MOVED to amend page 41, line 49, to delete "court may require the party" and replace with "party shall." Judge Hagerty seconded.
A member said that the change was not a good idea because 90 percent of the time the public is not going to care about documents in the restricted part of the file. The member said that if the proposed amendment were approved, the size of files would be multiplied by the inclusion of extra copies.
A member observed that generally judgments in child support matters would be required to include non-redacted personal information and thus be placed in a restricted part
of the file. The member said that, unless the proposed amendment was approved, this would mean that in every divorce case the judgment would not be available for the public to check except when the judge specifically ordered a redacted copy to be filed along with the non-redacted original.
A member asked what would happen when electronic filing came online. A member replied that the rule the Committee was using as a model was a rule designed to comply with the E-Government Act.
A member said that court files are public and completely restricting access to a document would deprive the public of its right to access to the file. The member said that the goal of the proposal was to deprive the public of access to restricted personal information, not to unrestricted information.
A member said that deciding on whether to approve the proposal required the Committee to weigh whether there would be enough public demand to see the few restricted documents against whether the additional space the added copies would take up and the additional work the clerks would have to do to check that everything was properly filed.
A member said that it would be a better idea to only require parties to make redacted copies of restricted documents when the document was final judgment. The member said that having all the restricted material copied and redacted would be wasteful. A member said this could be handled with a standing court order requiring a redacted copy of any final judgment to be submitted.
A member said if it was not required for the party to submit redacted copies of restricted documents, the burden would fall on the court or clerks to redact documents if access to these documents was requested at some future time, after the attorneys and parties were no longer available.
A member said that if the parties were required to file redacted copies of confidential documents, this would be an incentive for parties to limit the number of documents parties would claim as confidential.
A member said that the Committee was making a mess of the rule. The member said that staff needed to monitor developments in privacy protection to see if someone comes up with a better idea how to protect personal information in court documents.
Motion to amend rule to require parties to file redacted copies of confidential documents CARRIED 11-5.
A member said that the last sentence of the proposed amendment on page 41, lines 53-54, was troublesome because it used the broad term "court personnel" and because it was a negative instruction. Another member commented that it was an important to refer to "court personnel" to make sure all who worked for the courts were covered and to use the negative language to make sure that court personnel were not required to redact documents, especially that thousands of documents already filed with the courts.
The motion to approve the alternate version of Rule 3.1 as amended, and to send it to the Supreme Court as part of the annual rules package, CARRIED 12-4.
Judge Leclerc MOVED for approval of Administrative Rule 41, as amended. Ms. Schmitz seconded.
Without objection, the phrase "or other financial account" was added to page 47, line 19, to harmonize Rule 41 with Rule 3.1 as amended by the Committee.
A member asked about the inclusion of a reference to Section 25-03.3-03 on page 53, line 129. The member asked if the Committee was designating the records referenced as confidential. The Chair explained that the statute named already made the records of proceedings to commit sexually dangerous individuals confidential--the statute was only being added to the rule as a reference.
The motion to approve Rule 41 as amended and send it to the Supreme Court CARRIED 13-2.
Staff confirmed that consideration and approval of proposed Appendix G would be unnecessary because the Committee had chosen to approve the alternate version of Rule 3.1.
RULE 6.1, N.D.R.Ct. - CONTINUANCES (PAGES 87-101 OF THE AGENDA MATERIAL)
Staff informed the Committee that the Supreme Court referred a proposed change in Rule 6.1 to the Committee for review. Staff informed the Committee that the Council of Presiding Judges had proposed the changes in the rule.
Ms. Schmitz MOVED that the Committee approve the proposed amendments to Rule 6.1. Judge Schmalenberger seconded.
A member commented that it would be preferable to make direct reference to
Administrative Rule 12 in the proposed language, rather than referring to the more generic term "docket currency standards." The member said that Admin. Rule 12 itself allowed bending of the standards "for good cause shown" while the proposed language for the rule seemed to allow no flexibility.
A member responded that a case can be managed consistent with the docket currency standards even when not resolved within the periods set out in the standards when the presiding judge determines that there is good reason to waive the standards. A member replied that such waiver is usually granted after the fact rather than in a case scheduling phase.
A member said that the rule should be amended to allow flexibility when there is good cause to continue a case beyond the time set out in the docket currency standards. Another member said that such an amendment would not improve the rule and that the Presiding Judges' proposal seemed like another effort to turn the North Dakota courts into the federal courts but without enough people to administer all the rules. The member said it was ironic that federal court officials were complaining that they do not have enough cases filed--the member suggested that the unrealistically tight time frames for handling federal cases were one reason that parties preferred state court.
A member said that the docket currency standards were already in place and would be enforced regardless of whether the Committee endorsed this rule proposal. The member said that the Case Flow Management Committee proposed the amendment to resolve the problem of what is to be done with continuances within the framework of the docket currency standards. The member said that the requirement to resolve a case, and schedule any continuance, according to the docket currency standards would exist even without the rule change.
A member commented that it was inappropriate for the Case Flow Management Committee or the Presiding Judges to fashion new rules designed to modify judge behavior when existing rules already govern. A member said that if the proposed rule change was not going to add anything to what was already in place, there was not reason to make the change.
The motion to approve the changes to Rule 6.1 was DEFEATED 2-14. Staff was instructed to report to the Supreme Court that the Committee does not recommend approval of the proposed changes.
RULE 39.1, N.D.R.Civ.P. - CHANGE IN LOCATION OF HEARING, PROCEEDING, OR TRIAL; CHANGE OF VENUE (PAGES 102-125 OF THE AGENDA MATERIAL)
Staff informed the Committee about a recent situation that seemed to point out some shortcomings in Rule 39.1's requirement on the automatic changing of judges when a matter is moved to a different district. Staff explained a proposed amendment intended to resolve the potential shortcomings by allowing the Supreme Court to take action to stop an automatic change of judge.
Ms. Moore MOVED that the Committee approve the proposed amendments to Rule 39.1. Judge Geiger seconded.
A member said that the rule was very useful in practice and worked well. In reference to the proposed change, the member asked how it would happen that the Supreme Court would become involved in the automatic judge change required when a case moves to a different judicial district. The member said someone would have to go to the court and seek action before the court would have any reason to become involved.
Staff explained that, in the situation underlying the proposed change, the court had been informed that the parties did not want the judge changed when venue was changed to a different district because the judge had been specially assigned by the court to the case.
A member said that eliminating the entire sentence on automatic reassignment might be an easier way to solve the problem. Another member suggested that the addition of language barring automatic reassignment when a case judge had been assigned by the Supreme Court might be useful.
The Chair stated that it was the Chief Justice's responsibility to assign judges, not the court's, and that this should also be reflected in any change.
A member said that the underlying situation was really odd and that generally it made sense, when a case was moved to a different district, simply to assign the case to the next judge in the rotation in the new district.
A member commented that it was not unheard of to have a case where all the judges in a district were disqualified and to have the Chief Justice assign an out-of-district judge, who might then shift venue to a different district. The member said that if the judges from the new district had no conflicts, there generally would be no reason why the case could not be reassigned to one of them instead of having the assigned judge keep it. The member said the underlying situation was a very unusual situation.
A member said that in the underlying situation, venue was not changed because it was improper but because of concerns about getting an unbiased jury. A member said that the
assigned judge could have been kept under the existing rule by classifying the move as a change of place of trial rather than a change of venue. Staff explained that in the underlying case, the assigned judge had been retained because the presiding judge of the district the case moved to had requested the assigned judge's retention under Section 27-05-22 (1), N.D.C.C.
Several members commented that if venue is changed to a different district, the judge should also be changed. Members said that this is done on a regular basis, and reassignment to a different judge is almost automatic. Members said that it was a rare situation when it would be desirable to change venue to a different district and not also change the judge.
A member asked whether it was appropriate to change a rule based on one odd case. Another member responded it was not, but that the proposed language was innocuous and would solve the problem caused by the underlying case without wrecking the rule. A member commented that the rule should not be changed because of this situation.
The motion to approve the changes to Rule 39.1 was DEFEATED 4-10.
The meeting recessed at approximately 4:00 p.m., on April 29, 2004.
April 30, 2004 - Friday
The meeting was called to order at approximately 9:00 a.m., by Justice Dale V. Sandstrom, Chair.
RULE 8.2, N.D.R.Ct. - INTERIM ORDERS IN DOMESTIC RELATIONS CASES (PAGES 159-180 OF THE AGENDA MATERIAL)
Staff informed the Committee about a proposal by Mr. Michael McIntee to amend Rule 8.2 to clarify sanctions available when parties failed to comply with the rule.
Mr. McLean MOVED that the Committee approve the proposed amendments to Rule 8.2. Judge Schneider seconded.
A member said that judges already have the ability to sanction parties for failing to provide information required by Rule 8.2. The member said that the proposed amendment, therefore, was not needed. A member commented that sanctions are given on a regular basis for non-compliance with Rule 8.2.
A member admitted that courts have the authority to give sanctions but asked if all courts do so on a consistent basis. The member said it could be helpful for attorneys to be able to point to a rule provision that said that sanctions were authorized and that listed sanction options. A member replied that lawyers and judges know that courts have the authority to impose sanctions for violating the rule, so adding the proposed language would not be helpful.
A member said that practitioners understand they run a tremendous risk of being sanctioned if they do not follow the rule. A member said that the proposed language was not a good approach to setting standards for sanctions because the Supreme Court and the language of the discovery rules make it clear that sanctions must fit the offense, and the proposed language did not give enough flexibility and would add confusion in cases involving violations of the rule.
Without objection the "and/or" on page 163, line 74 was changed to "or."
A member said that there was a lot of inconsistency between courts in dealing with domestic relations cases and it would not hurt to adopt the proposed language because it would give courts some guidance. The member said the rule was a relatively new and unique development and the proposed language would give courts some insight on their sanction options under the rule. The member said it would also make parties aware that sanctions were a possibility if the rule was not followed.
A member said that there would always be inconsistencies in how cases were handled because there are more than 40 district judges, all of whom have different approaches and little idea what the other judges are doing. The member said authority to sanction already existed and putting the proposed language in the rule would not change inconsistencies that will continue to exist.
The motion to approve the proposed changes to Rule 8.2 was DEFEATED 4-14.
RULE 3.1, N.D.R.Ct. - PLEADINGS (PAGES 126-144 OF THE AGENDA MATERIAL)
Staff informed the Committee about a request by Judge David Nelson asking the Committee to look at whether Rule 3.1 could be clarified to provide better guidance on the filing of pleadings and other papers. Staff explained that it had drafted proposed language for the Committee to use as a starting point in its discussions.
Mr. Kapsner MOVED that the Committee approve the proposed amendments to Rule
3.1. Judge Nelson seconded.
A member explained that the genesis of the issue was a mistake made by a judge regarding an item attorney Lynn Boughey filed. The mistake prompted Mr. Boughey to survey clerks across the state on policies on filing of originals and copies. The member said this was an overreaction. The member said that the situation did not arise from a problem in the rules but from the immense volume of paper filed in the particular case.
A member said that Mr. Boughey had pointed out the fact that clerks across the state were following different procedures in regard to filing copies. The member said that the process was underway to rewrite the clerk's manual and guidance on this issue would be useful so that everyone can know what procedure should be followed.
A member said that adopting a rule allowing only originals to be filed would be a move in the wrong direction. The members said that often parties making summary judgment motions will not have originals of such things as deposition transcripts available to file, so a rule allowing only the filing of originals would end up barring the use of some material. The member said that filing copies had become commonplace and continuing to allow it would be appropriate.
A member said one problem with allowing copies of documents to be filed is that there is always a temptation to correct "errors" in documents as part of the copying and filing process, so a document the court looks at during one phase of the case may not be the same as the copy the court sees later.
A member said requiring original pleadings to be filed would be appropriate but requiring all documents filed to be originals would be going too far, especially when motions and briefs often have many attachments that are usually copies.
A member said that sometimes parties send original motions and briefs directly to the judge, which is not a good idea because judges are less able to keep track of and file such documents than are clerks. The member said that parties also sometimes try to cover all bases by sending copies to the judge and originals to the clerk, which results in a great deal of paper floating around. The member said it would be a good idea to have consistent guidance for parties on what documents to submit and file.
The Chair said that another issue was to define "originals" and "copies." The Chair said the Supreme Court does not require submission of paper documents at all and the "original" is therefore the electronic copy initially received from the party.
A member said that if the rule required parties to submit originals for filing it would create a dilemma for clerks--if they receive photocopies for filing, what are they supposed to do with them? The member said that if something comes into the clerk's office for filing, it should go into the file and the court should determine how much weight to give it. The member said that it is not appropriate to have clerks rejecting materials parties seek to file.
A member said that clerks at sometimes do reject material that parties seek to file and that the rule needs to be clarified so the clerks have better guidance on what to do with material presented for filing. Another member commented that clarity would also be helpful for lawyers, who tend to err on the side of safety by filing or attempting to file as many copies of documents as seems prudent.
A member said it was very strange to see that the counties across the state treating documents so differently. The member said the important thing was to have the document in the file, whether an original or copy. The member said that whatever copy was in the clerk's file should be considered the original and that the rule should be clarified to allow parties to file copies.
A member said that allowing copies of most documents would be fine but that parties should be required to file original pleadings. The member said that clerks and judges receive documents in many forms, including by fax and email, and that most of the time it doesn't matter if a document, such as a motion, is not an original. The member, however, said it was important that the complaint and answer be originals.
A member asked if the rule was changed to allow parties to file documents in any form, how will the courts handle situations when the same document is sent to the court by fax, commercial delivery, mail and hand delivery? What is to be done with the extra documents?
A member said that in Burleigh County, the clerk generally waits for the original before filing anything, and holds the fax and the copy and any other extras. The member said this seemed to be a rational approach--waiting to file the original when there are a lot of documents floating around in a case.
The Chair said that the federal courts allow pdf images to be filed instead of paper documents. The Chair said this creates a question of what was the "original" since a paper document never needs to be created in such a case. The Chair said North Dakota would be confronting this issue in the future as electronic filing is extended.
A member commented that in 15 months, federal courts will stop allowing the filing
of paper documents--all documents must be filed electronically and if a document is sent under the attorney of record's password it is considered the original, regardless of who actually sent it.
A member suggested some possible language for the rule, on page 128, line 23: "A party seeking to file a pleading must provide a signed original to the clerk. If any original pleading is lost or withheld by any person, the court may authorize a copy to be filed and used instead of the original. All other papers may be filed by facsimile, photocopy, or original. The first document filed with the clerk shall be considered the original document."
The member said that this language makes the pleading more sacrosanct by requiring the filing of an original pleading, but freely allows filing of copies of other documents.
A member asked how the federal courts handle pro se litigants who do not have computers? The member said going exclusively to electronic filing is impossible. The member also commented that the whole question of what form filed documents should take is amorphous because of electronic filing looming on the horizon, and that it might not be appropriate for the Committee to adopt rule changes that can only govern the present interim, pre-electronic, period.
A member said that by the time any rule change the Committee approves hits the Supreme Court, the change will be close to obsolete given the move to electronic filing. The member said that there is a need to revisit filing procedures, but that any change should be looking toward the future rather than directed to solving current problems.
The Chair said that moves to electronic filing generally begin with allowing the pleadings to be filed electronically. A member pointed out that the current fax rule allowed pleadings to be filed by fax. The Chair said that when a pleading was filed by fax, the courts do not want the "original" because it might be corrected or changed.
A member said that, because there is no definite guidance on filing copies, some clerks will date stamp and file a submitted copy, and then weeks later when the original is presented, they will throw away the copy and back date the original. The member said that this practice was just plain scary.
A member said that this highlighted the real problem created by filing copies--what do you do with the copy when it is followed by the "original?" Do you treat the first item received as the original and ignore everything else or do you allow the first item and all later items to be filed, even if this causes duplication and expansion of the file?
A member observed that the practice of sending copies or originals to judges also created serious issues because judges don't necessarily know whether what they receive needs to be filed or even preserved. A member replied that judges contribute to the problem by sometimes telling parties, especially those involved in cases in rural counties, to send material directly to the judge rather than to the rural courthouse. Members agreed it was important to have clear guidance for rural clerks and parties on what to do with documents when the judges in rural cases are not at the rural courthouse.
The Chair observed that the problem of documents in rural cases was one of the factors motivating the court system to move forward on enhanced records management and electronic document sharing, so that images of documents will be available wherever the judge may be. A member said that this was not a foolproof solution because accessing the court computer network is not always easy in rural locations and that rural courthouses are not adequately equipped with computers.
A member said that, because enhanced records management was coming, any action the Committee took on the rule would be premature. A member asked whether the enhanced records management study needed to be completed before the Committee drafted any changes to the rule. A member explained that a pilot project in several counties was being contemplated, but that money would have to be sought from the legislature before enhanced records management could go online statewide. The member agreed that rule changes would be necessary once enhanced records management was in place.
A member suggested that nothing be done with the rule at this time but that the Committee consider changes at a later time. Another member responded that revisions to the clerk's manual were being made and that it would have to address the filing issue whether or not the Committee took action. The member said that the simplest thing to do was to tell clerks that if material was brought in for filing, the clerks should stamp and file it.
A member said one of the main problems the discussion had illuminated was that parties were sending documents to judges rather than clerks, expecting that those documents somehow to be filed. The member said that the rule should at least be revised to clarify that a document sent to a judge was not a filed document.
Judge Bohlman MOVED that the language on page 128, lines 23-26, be replaced as follows: "Filing of Papers. A party seeking to file a pleading or other paper with the court must file the document in an acceptable format with the clerk. A courtesy copy provided to the judge is not considered as a filing with the court." Mr. Kapsner seconded.
A member said that neither the rule nor the proposed change defined what format was acceptable for a filing. The member said the clerks would then have to decide what format was acceptable and the rule did not give consistent guidance on this. The member suggested that the motion be revised to eliminate the words "in an acceptable format."
Without objection, the language "in an acceptable format" was deleted from the motion language.
Without objection, the word "courtesy" was deleted from the motion language.
A member said that there was nothing in the language to deter parties from sending the original to the judge and expecting the judge to file it. The member said it needed to be clear that documents cannot be filed by sending them to the judge.
The Committee discussed possible language to clarify the amendment.
Judge Hagerty MOVED that the language in the last sentence of the amendment be replaced with: "A document sent to the judge is not considered filed." Ms. Schmitz seconded. The motion CARRIED unanimously.
Judge Leclerc MOVED that term "sent" in the proposed amendment be changed to "submitted." Judge Simonson seconded.
A member said "sent" was better because it would include mailing, faxing and hand delivery, but it would not include an item "submitted" in open court. The member said an item submitted in open court would be considered filed. A member asked if this included such things as jury instructions turned over at a pretrial conference. A member responded that documents turned over in court should always be considered as filed, but out of court, items provided to the judge in whatever manner should not be considered filed. A member said that when they were in the courtroom, judges do almost all their own clerking. The member said, however, it was always best to give a document to the clerk rather than a judge just to make certain it is filed.
A member said that attorneys delivery jury instructions, originals and copies, to judges all the time, frequently at the final pretrial conference. The member said the clerk is usually not at the conferences. The member said that the jury instructions provided at the final pretrial usually end up getting filed, but that sometimes the judge loses them.
Another member reiterated that the only way to be certain a document was filed was to give it to the clerk. A member said that unless a judge acknowledges a willingness to file
a document submitted in open court, the attorney has a responsibility to make sure the document is filed with the clerk.
The motion to insert the term "submitted" FAILED for lack of a majority on an 8-8 vote.
Judge Nelson MOVED that the language on page 128, lines 23-26 be restored to the way it stood before amended and that proposed amendment language be added to the rule as a separate subdivision with the subdivisions relettered accordingly. The new subdivision titled "Filing of Papers" would precede the unamended "Copy of Lost Papers" subdivision in the rule. Ms. Schmitz seconded.
A member said that the Committee's discussion indicated a consensus to place less importance on original papers. The member said that the main value of original papers was to use in checking a copy for accuracy. The member, therefore, questioned whether keeping the "Copy of Lost Papers" subdivision was necessary.
A member said that the subdivision is needed because it sometimes happens that the court loses a file and has to contact the attorneys to re-create it. A member asked whether the word "original paper" should be retained in the "Copy of Lost Papers" subdivision since lost files might contain copies under the amendments proposed.
A member said that it appeared the Committee was trying to craft a rule under which, if a party wants something in the file, they give it to the clerk and the clerk files it. The member said that if this is where the Committee wanted to go, it still needed to define what the clerk is allowed to file and whether the clerk needs to file multiple copies of a given document just because the parties submit them.
A member said the Committee should retain the language that references original documents. The member said that if electronic filing is then adopted, a new sentence could then be added defining an original electronically filed document.
The motion to amend by restoring the "Lost Papers" subdivision and creating a new "Filing of Papers" subdivision CARRIED on a voice vote.
Professor Bata MOVED to revise language at page 128, lines 23-25, to read "A party seeking to file a pleading or other paper with the court must submit the paper to the clerk for filing. Submission to other court personnel is not a filing." Ms. Schmitz seconded.
A member asked whether "document" would be a more appropriate term than
"paper." The member said that all documents previously were on paper, but that was not the case in the current electronic age. A member responded that N.D.R.Civ.P. 5 used "paper."
A member said "court personnel" was too vague--the language should refer specifically to judges since it is giving papers to judges that creates problems with ensuring that documents get filed. A member asked whether the second sentence was needed at all since the first sentence said the paper needed to be submitted to the clerk to be considered filed. A member responded that the second sentence is necessary because parties apparently think that documents can be filed by giving them to the judge.
A member said that N.D.R.Civ.P. 5 deals with filing too and the Committee's proposals might be overlapping with Rule 5. A member commented that a variety of rules could be implicated by the proposed changes, such as N.D.R.Civ.P. 11 which contains an unambiguous requirement that papers be signed. The member said that the Committee seemed to be moving too far away from the request to provide guidance to clerks on how to handle the filing of copies.
The motion was DEFEATED 7-8.
Judge Geiger MOVED to amend the new subdivision by changing the language of the first sentence: "A party seeking to file a pleading or other paper with the clerk may do so by submitting a copy of the document. The copy shall be considered the original document unless any party requests and the court thereafter directs that the true original be substituted. Submitting documents to the judge or other court personnel shall not be considered filing." Judge Nelson seconded.
Ms. Schmitz MOVED to substitute the following language in place of the second sentence of Judge Geiger's motion: "The first document filed with the clerk shall be considered the original document unless otherwise ordered by the court." Judge Leclerc seconded.
A member said that none of the proposed language addressed all the problems raised by the Committee in its discussion of the rule. The member said the Committee's discussion had identified five objectives: Define an original; address handling of copies; indicate that filings are not made with the judge; make it clear that filings are made with the clerk; and provide for lost documents. The member said that staff needed to revise the rule and integrate the changes made by the Committee into a new draft and the Committee needed to reconsider the new draft at the next meeting.
Judge Geiger MOVED to postpone consideration of the proposed amendments until
the September meeting. Mr. Kuntz seconded. The motion CARRIED unanimously.
RULE 40, N.D.R.Civ.P. - ASSIGNMENT OF CASES FOR TRIAL (PAGES 145-158 OF THE AGENDA MATERIAL)
Staff informed the Committee about a proposal by Mr. Lynn Boughey to amend Rule 40 to create a new document titled "certificate of readiness for ruling" which parties could file to inform the court that all information necessary to a decision on a motion or other request had been submitted.
Judge Leclerc MOVED that the Committee reject the proposed amendments to Rule 40. Ms. Schmitz seconded.
A member said the proposal made no sense and should not be adopted.
The motion to reject the proposal CARRIED unanimously.
FORM 25, N.D.R.Civ.P. - SCHEDULING STATEMENT (PAGES 181-189 OF THE AGENDA MATERIAL)
Staff informed the Committee that Mr. Steven Lamb had proposed that a form be developed for parties to use in preparing for Rule 16 scheduling conferences. Staff explained that it had prepared two scheduling form proposals, one based on the form used in Minnesota, the other based on the form used in federal court.
Judge Foughty MOVED that the Committee approve the federal version of Form 25. Judge Schneider seconded.
A member said that no specific form is needed for scheduling conferences. The member said that parties work together to outline important issues and deadlines. The member said the attorneys should make their own "forms" on a case-by-case basis.
A member said that cases are not all the same--asbestos cases, for example, are very different than commercial cases. The member said that most cases do not require submission of the detailed information sought by the proposed forms.
A member said that the proposed form would not work in domestic relations cases, which comprise the bulk of civil cases in state court. The member said that a different form
already existed for these cases.
The motion to approve the federal alternative of Form 25 was DEFEATED 0-16.
RULE 3.2, N.D.R.Ct. - MOTIONS (PAGES 190-194 OF THE AGENDA MATERIAL)
Staff explained to the Committee that, in reviewing Rule 3.2, staff discovered that a previous change to the rule was not noted or explained in the Explanatory Note. Staff explained a proposed amendment to the Explanatory Note drafted to correct the omission.
Judge Leclerc MOVED that the Committee approve the proposed amendment to Rule 3.2's Explanatory Note. Ms. Schmitz seconded.
A member said that the proposed addition to the explanatory note would be helpful. The member said there was still confusion among new lawyers regarding the motion response deadlines and that the proposed change would clear up some of the confusion. A member commented that even experienced attorneys were sometimes confused by response deadlines.
A member asked whether it would also be necessary to explain what happens when the rule conflicts with a local rule. A member responded that this was a controversial issue that might need to be considered separately.
A member commented that the default judgment rule had recently been amended to make clear that a default judgment motion is a Rule 3.2 motion.
The motion to approve the proposed changes and send the rule to the Supreme Court CARRIED unanimously.
RULE 10, N.D.R.Crim.P. - ARRAIGNMENT (PAGES 195-204 OF THE AGENDA MATERIAL)
Staff explained that the proposed amendments to Rule 10 were based on the form and style amendments made to Fed.R.Crim.P. 10 that became effective Dec. 1, 2002. Staff indicated that Rule 10 was before the Committee as part of its continuing review of the criminal rules.
Judge Leclerc MOVED that the Committee approve the proposed amendment to Rule
10. Ms. Schmitz seconded.
A member pointed out that the federal rule's interactive video provision required the defendant's waiver before interactive video arraignment was allowed while the proposal on Rule 10 presumed waiver, requiring an objection from defendant before an interactive video arraignment could be conducted. Staff explained that the Supreme Court had opted for the provision requiring an objection rather than waiver.
A member said that the proposed language regarding waiver of appearance seemed to conflict with Rule 43, which allows appearance to be waived both for not guilty and guilty pleas in misdemeanor cases.
A member said the proposed amendments seemed to mix up felony language and misdemeanor language in a confusing way. A member asked whether adding language referencing Rule 43 would correct the problem.
Judge Simonson MOVED to strike language on page 196, line 20, referencing the indictment or information. Mr. Hoffman seconded.
A member said the change would make it clear that the provision applied only to misdemeanors, which are almost always charged on a complaint. A member replied that some districts still charge misdemeanors on informations.
Motion CARRIED unanimously.
Mr. Hoffman MOVED to strike language on page 196, line 20: "and that the plea is not guilty." Judge Nelson seconded. Motion CARRIED unanimously.
A member said that the proposal seemed to allow only a represented defendant to waive arraignment. The member said that the bulk of cases involving waiver were in check or game and fish cases where defendants are not represented. The member said the rule should allow a non-represented defendant to waive.
Judge Hagerty MOVED to add language to page 196, line 19: "if the defendant is represented." Judge Simonson seconded.
Without objection, the motion was modified to strike the word "both" on line 18 and to insert a comma after the word "defendant."
The motion CARRIED unanimously.
A member asked whether the words "indictment, information or complaint" needed to be removed from page 196, lines 8-9, to be consistent with the language approved under the previous motion. A member responded that the line 8-9 reference was a general reference.
A member asked whether traffic citations were now complaints. Members responded that some amounted to criminal complaints, such as DUI citations. A member said that if the offense was under Title 39 as a Class A misdemeanor a citation was sufficient and no separate complaint was needed. The member said that the citation could not be used for an offense such as underage consumption of alcohol.
A member asked whether reference needed to be made to Rule 43 as the waiver provision would be incomplete without reference to Rule 43. The member asked why the waiver provision was included at all in Rule 10. The member said that it seemed inappropriate to be talking about waiver in this rule when it was covered better in Rule 43.
Judge Hagerty MOVED to delete the proposed new language at pages 196-197, lines 15-21, and to reletter the rule accordingly. Judge Nelson seconded. Motion CARRIED unanimously.
Without objection, the explanatory note sentence beginning on page 198, line 50 and concluding on line 51 was deleted to conform to the Committee's changes to the proposal.
The motion to approve the proposed changes and include the rule in the Criminal Rules Package CARRIED 15-0.
RULE 11, N.D.R.Crim.P. - PLEAS (PAGES 205-249 OF THE AGENDA MATERIAL)
Staff explained that the proposed amendments to Rule 11 were based on the form and style amendments made to Fed.R.Crim.P. 11 that became effective December 1, 2002, and that Rule 11 was before the Committee as part of its continuing review of the criminal rules.
Judge Schneider MOVED that the Committee approve the proposed amendment to Rule 11. Ms. Schmitz seconded.
A member said that the rule seemed to add a lot to what courts do currently at initial appearances. The member said that it is generally good to fully inform people, but that telling people too much can cause confusion. The member said that some of the things included in the list were not necessary.
A member agreed, saying that warning a defendant against perjury and false statements, for example was necessary. The member said that it was not necessary to mention all the items listed on pages 207-208 when defendants come in for an initial appearance. The member asked if any defense lawyers on the Committee thought it was necessary.
A member said the proposal to add the list on pages 207-208 was really a big change and that it might be better to try to work through it when the Committee had more time.
Judge Nelson MOVED to delete lines 34-35 on page 207, which relate to warning about the consequences of perjury, and to renumber accordingly. Judge Hagerty seconded.
A member asked whether any federal case law existed to support the proposed new language on lines 34-35. The member said that no Supreme Court opinion supported the language. The member said that the law did not require advice on collateral matters. A member responded that administrative law judges typically warn about the consequences of perjury and that this was required by the Administrative Agencies Practices Act.
Staff said that the federal committee note indicated that the federal committee viewed the previous list as incomplete and made additions to the list in federal rule in response.
A member said that the structure of the federal amendments was backwards. The member said that standard procedure in state courts was to advise defendants of all their rights at the initial appearance and that advising them again of their rights after they reached a plea agreement and while they were on the verge of pleading was too late. The member said that it did not seem that the change would accomplish anything positive.
A member said that, at a plea proceeding, usually judges simply refer back to the initial appearance and ask defendants whether they remember what was explained to them rather than repeating the explanation of rights. The member said that judges typically stress the fact that defendants are giving up the right to a trial if they plead guilty, but that it is unnecessary to go into much additional detail. The member said that courts would spend much more time on plea proceedings if they were required to repeat the explanation of rights.
The motion to delete lines 34-35 CARRIED unanimously.
Judge Nelson MOVED to delete language from page 207, line 36. Judge Bohlman seconded.
A member said informing defendants of their right to persist in a not guilty plea might be of some benefit to defendants who believe they are being forced into a plea bargain. A member responded that defendants are quizzed on whether their plea is voluntary. A member said the old rule required defendants to be informed of their right to persist in a not guilty plea.
A member said that it might be wiser to keep the old rule than to modify the proposed revisions line-by-line. A member responded that the old rule seemed to work and was constitutional. The member said the proposed changes to the rule would provide defendants with more information, but information that was collateral and not constitutionally required.
The motion to delete language was DEFEATED on a voice vote.
Judge Hagerty MOVED to instruct staff to redraft the proposal to include formatting updates and to include a harmless error provision, but to leave out the other federal changes. Judge Schmalenberger seconded. The motion CARRIED unanimously.
The meeting adjourned at approximately 11:30 a.m., on April 30, 2004.
Michael J. Hagburg