MINUTES OF MEETING
Joint Procedure Committee
January 30-31, 2003
TABLE OF CONTENTS
Supreme Court Approval of Rules Packages 3
Rule 10, N.D.R.App.P. - The Record on Appeal 3
Rule 6, N.D.R.Civ.P. - Time 4
Rule 4, N.D.R.Civ.P. - Persons Subject to Jurisdiction--Process--Service 6
Discovery Guidelines 10
Rule 16, N.D.R.Civ.P. - Pretrial Conferences, Scheduling, Management 11
Rule 26, N.D.R.Civ.P. - General Provisions Governing Discovery 11
Rule 30, N.D.R.Civ.P. - Depositions Upon Oral Examination 13
Rule 33, N.D.R.Civ.P. - Interrogatories to Parties 13
Rule 37, N.D.R.Civ.P. - Failure to Make or Cooperate in Discovery; Sanctions 15
Rule 21, N.D.R.App.P - Supervisory Writs 16
Rule 8.10, N.D.R.Ct. - Writs 18
Rule 8.5, N.D.R.Ct. - Domestic Relations Summary Proceedings 20
Rule 13, N.D. Sup. Ct. Admin. R. - Judicial Referees 21
CALL TO ORDER
The meeting was called to order at approximately 1:00 p.m., on January 30, 2003, by Justice Dale V. Sandstrom, Chair.
Justice Dale V. Sandstrom
Honorable Bruce E. Bohlman
Honorable M. Richard Geiger
Honorable Gail Hagerty
Honorable Ronald L. Hilden
Honorable Lawrence A. Leclerc
Honorable David W. Nelson
Honorable Thomas J. Schneider (January 31 only)
Honorable Mikal Simonson
Professor Linda Bata
Mr. Michael R. Hoffman (January 31 only)
Mr. John C. Kapsner
Mr. Ronald H. McLean
Ms. Sherry Mills Moore
Mr. Steven W. Plambeck
Honorable Donovan Foughty
Mr. Daniel S. Kuntz
Mr. Galen J. Mack
Ms. Cathy Howe Schmitz
Mr. Michael G. Sturdevant
The Chair welcomed Professor Linda Bata, a new member of the Committee. Professor Bata replaces Professor Larry Kraft, who retired from the Committee after the April 2002 meeting.
The Chair announced the resignation of Committee member James Odegard, retired Grand Forks County State's Attorney. The Chair reported that Galen Mack, Pierce County State's Attorney, had been selected to replace Mr. Odegard on the Committee. The Supreme Court selected Mr. Mack after taking applications for Mr. Odegard's position from prosecutors around the state.
APPROVAL OF MINUTES
Judge Hagerty MOVED to approve the minutes. Judge Leclerc seconded. Motion CARRIED without objection.
SUPREME COURT APPROVAL OF RULES PACKAGES (PAGES 25-30 OF THE AGENDA MATERIAL)
Staff reviewed actions taken by the Supreme Court on the Appellate Rules Package and the 2002 Annual Rules Package.
The Chair explained that, in regard to N.D.R.App.P. 7, which the Committee had recommended repealing, the Supreme Court decided to modify the rule to allow consideration of appellate cost bonds on a case-by-case basis as a possible means of deterring frivolous appeals.
RULE 10, N.D.R.App.P. - THE RECORD ON APPEAL (PAGES 31-42 OF THE AGENDA MATERIAL)
Staff reviewed actions taken by the Committee at the September 2002 meeting on N.D.R.App.P. 10 and explained that the rule was back before the Committee because the proposed amendments had not achieved a 2/3 majority at the September meeting.
Judge Simonson MOVED to adopt the rule as amended. Judge Bohlman seconded.
The Chair explained that the proposed amendment to the rule did not change the requirement that jury voir dire be recorded, but that it made transcription of the recording optional if a case is appealed.
A member commented that transcription of recorded jury voir dire is a technical challenge because identifying speakers is difficult. The member stated that it is also very rare for the appealable issue in a case to arise from voir dire. The member said that the proposed amendment recognized the economic costs to the court system of transcribing voir dire in all cases where it was recorded.
A member commented that making a good record of voir dire is very difficult because of the number of people talking and the non-verbal answers often given to questions. The member said that a defendant's rights would not be harmed by the rule because they would always have the ability to ask for voir dire transcription if necessary.
A member stated that in cases where a different attorney takes over on appeal, the defendant is harmed if a transcript of jury voir dire does not exist. Other members responded that, since recording of voir dire is required, a transcript can be ordered at the point where the new attorney takes over.
A member said that, because court reporters/recorders are required to provide transcripts without charge in many criminal cases, reporters/recorders should not be required to transcribe voir dire unless specifically requested.
The Committee reviewed and discussed the jury standard appendix provision requiring voir dire recording to re-familiarize itself with the circumstances under which recording is required.
A member said that the problem with the proposed amendment is that when a second counsel takes a case over the opportunity to order a voir dire transcript in a timely manner can be missed. The rule's current approach, under which parties must obtain the whole transcript unless stipulated otherwise, eliminates this problem.
A member commented that substitute counsel will always be stuck with what the original counsel left them.
A member predicted that the movement toward anonymity for jurors would further complicate recording and transcription of voir dire.
The motion to adopt the proposed amendments and send the rule to the Supreme Court as part of the Annual Rules Package CARRIED 9-4.
RULE 6, N.D.R.Civ.P. - TIME (PAGES 43-49 OF THE AGENDA MATERIAL)
Staff reviewed the Committee's September 2002 discussion regarding N.D.R.Civ.P. 6 and the amendments proposed in response to the Supreme Court's decision in Comstock Const., Inc. v. Sheyenne Disposal, Inc.
Judge Leclerc MOVED to adopt the rule as amended. Mr. McLean seconded.
A member stated that the decision in Comstock was counterintuitive and not what a practicing lawyer would expect. The member said the proposed amendment made sense because, when personal service actually occurs, a delay responding after personal service should not be cured by a three-day extension.
The Chair explained that the point of the proposed amendment was that, if service is made under the elevated standards of N.D.R.Civ.P. 4, time to act in response to this act should start running when the item served is actually delivered, not at some other point. Moreover, under the proposed amendment, time would not begin to run at all if good service
was not made.
A member asked whether the provision would apply when service by mail under N.D.R.Civ.P. 4 was refused. Other members indicated that refusal of service was equivalent to good service under the rules as of the date of refusal. However, if someone does not claim an item served by mail, this does not constitute good service.
A member commented that the language of the proposed amendment was not completely clear regarding what types of documents were affected by it. The member suggested that the language should be modified to refer to the specific part of N.D.R.Civ.P. 4 applicable to service under statute.
Judge Bohlman MOVED to add more specific language to the rule as amended. Judge Simonson seconded.
A member indicated that if the proposed amendment was made, it would be necessary to amend N.D.R.Civ.P. 4 as well. A member commented that there would be more room for flexibility in the future if no reference was made to a specific subpart of N.D.R.Civ.P. 4 in the amendment.
Another member commented that specific subpart reference was necessary because of the breadth and complexity of N.D.R.Civ.P. 4. A member commented that, if specific reference were made to the service by statute subpart, other types of N.D.R.Civ.P. 4 service (such as service of a summons) would not be covered by the amendment to the rule.
A member suggested that reference could be made to the broader personal service subdivision of N.D.R.Civ.P. 4 instead of to the specific service by statute subpart. A member said that the key was limiting application of the provision to N.D.R.Civ.P. 4 service. A member commented that if there were too much specificity, items that should be covered by the amended rule would be removed from coverage--the member said too much specificity is not helpful.
A member stated that N.D.R.Civ.P. 4 is a jurisdictional rule that sets out at what point jurisdiction exists and how jurisdiction is obtained--by service. The member said the language of the rule as amended should apply to the entirety of N.D.R.Civ.P. 4 because this is necessary for determination of jurisdiction questions under N.D.R.Civ.P. 4.
A member said a better approach would be to integrate the time counting instructions into N.D.R.Civ.P. 4 rather than to amend the rule. Another member said that such an amendment to Rule 4 would have to be made in a way applicable to the entire rule. The
member said that putting the time counting instructions into N.D.R.Civ.P. 4 would be a better way to advise people of the factors they needed to consider when serving an item under N.D.R.Civ.P. 4.
Judge Hagerty MOVED to amend the pending motion to delete any reference to a specific subpart of N.D.R.Civ.P. 4. Judge Leclerc seconded.
The motion to amend the pending motion CARRIED 12-1.
A member restated the opinion that amending N.D.R.Civ.P. 4 rather than the rule would solve the problem. The member said that it was counterintuitive to have instructions applicable to N.D.R.Civ.P. 4 in the rule. Another member replied that putting time computation provisions in N.D.R.Civ.P. 4 would over complicate matters--N.D.R.Civ.P. 6 is the rule that tells how time is counted and this is the rule where people look when computing time.
The amended motion CARRIED without opposition.
The motion to adopt the proposed amendments and send the rule to the Supreme Court as part of the Annual Rules Package CARRIED 13-0.
RULE 4, N.D.R.Civ.P. - PERSONS SUBJECT TO JURISDICTION--PROCESS-- SERVICE (PAGES 50-68 OF THE AGENDA MATERIAL)
Staff reviewed the Committee's action on the rule at the September 2002 meeting and reviewed the amendments drafted and proposed in response to the Committee's instructions.
Judge Leclerc MOVED to adopt the rule as amended. Judge Bohlman seconded.
Judge Hagerty MOVED to amend the proposed language to remove the term "of an item." Mr. Kapsner seconded.
The motion CARRIED without objection.
A member suggested that service under the rule should always be an option regardless of what a statute or order prescribes.
Mr. Kapsner MOVED to amend the proposed rule language to include language allowing service under the rule in all cases. Judge Simonson seconded.
A member commented that, under the proposed amendment, a party could disregard instructions from a court regarding method of service. A member said that courts needed the discretion to direct a method of service when necessary.
A member asked what sort of court orders fell under the rule. A member said that in some cases, such as with an order to show cause, the court might prescribe service in a certain manner under a certain time frame.
Judge Leclerc MOVED a substitute motion that would restore language making it clear that service instructions in a statute or order need to be followed. Judge Simonson seconded.
A member commented that if the substitute motion was approved it would create a "ping pong ball" conflict between N.D.R.Civ.P. 4 and N.D.R.Civ.P. 6 because the substitute motion would allow service in any manner not precluded by the rules.
Motion to substitute language DEFEATED on voice vote.
Motion to amend DEFEATED 7-5.
A member asked whether the proposed language should specify that personal service is required when a statute or order does not otherwise specify. A member responded that the Committee's desire was to have service by publication be a possibility when necessary, and specifying personal service would exclude service by publication.
A member observed that, given the Committee's desire to allow service by publication, the amended language should be moved out of the personal service subdivision and into its own subdivision.
A member expressed concern about the reference in the amended subdivision to court orders. The member wondered whether it was appropriate to make the default method of service pursuant to a court order N.D.R.Civ.P. 4 service. The member said that if a court wants N.D.R.Civ.P. 4 service it may so specify, but absent such specification, N.D.R.Civ.P. 5 service should be acceptable.
A member indicated discomfort with changing rules related to court orders and suggested that the proposed amendments went too far. The member suggested that the subdivision dealing with service under order or statute be left alone and that a simple standalone subdivision dealing only with service under statute be approved.
A member said that trying to tailor the existing subpart to include the new language was creating problems. Another member suggested that the existing subpart dealing with orders and statutes should be eliminated and that a new subdivision dealing only with service under statute be drafted.
Judge Hagerty MOVED to add a new subdivision (m) to N.D.R.Civ.P. 4 which would deal only with service under statute. Judge Simonson seconded.
A member suggested that the subdivision language should allow service under N.D.R.Civ.P. 5 if applicable, as when a party is represented by an attorney. Another member asked if it was ever appropriate to allow the legislature to specify the method and manner of service, given service is a procedural matter.
Motion to add subdivision (m) CARRIED on unanimous voice vote.
Judge Hagerty MOVED to amend N.D.R.Civ.P. 4(d)(4) to remove references to service under statute and to leave the subpart to deal strictly with service under court order. Judge Leclerc seconded.
A member commented that the proposed language did nothing more than instruct parties that they must obey court orders, which they must do anyway. The member said it would be more useful if the subpart gave courts discretion to instruct how service should be made. Another member stated that courts already have such authority.
A member commented that the proposed language gives insight on how a party should act when a court order does not set out a method of service. Another member responded that it was unclear to what types of court orders the subpart would apply.
A member asked what the default method was when attorneys are required to serve a notice pursuant to a court order. The member suggested the default method ought to be N.D.R.Civ.P. 5 service. The member indicated that the broad language of the subpart as amended could make N.D.R.Civ.P. 4 service the default method.
Professor Bata MOVED to amend the pending motion to remove reference to service of a notice from the subpart. Ms. Moore seconded.
A member observed that other parts of N.D.R.Civ.P. 4 seemed to provide for service pursuant to order of the court. The member said that courts sometimes need to specify methods of service in orders and that courts have the power to do this. The member suggested that the Committee retain that current language of the subpart.
A member stated that, if the subpart is read to be only applicable to out of state parties, the notice language does not need to be deleted.
Judge Hagerty sought leave to amend her original motion to return language referring to out of state party language to the subpart. Without objection, LEAVE TO AMEND was granted and the language was restored to the subpart.
Professor Bata sought leave to withdraw her motion to amend. Without objection, motion to amend was WITHDRAWN.
A member asked what an order in lieu of summons, as referenced in the subpart, might refer to. Another member answered this could mean just about anything. A member asked whether it was necessary, given the Committee's interpretation of the subpart as being applicable only to out of state parties, to amend the subpart to remove the references to statutes.
The Committee reviewed its prior amendment related to service under statute.
A member asked whether the subpart as amended would allow a court to order an item to be served out of state in a manner that would not qualify as personal service. Another member said that other sections of N.D.R.Civ.P. 4, particularly subpart 4(d)(3), seemed to cover issues raised when serving an item out of state under court order and that the amended subpart was unnecessary.
The motion to amend, as revised, CARRIED 7-5.
The Committee discussed amending the explanatory note to be consistent with changes in the rule's text and to include an indication that the text had been amended.
Mr. Kapsner MOVED to delete N.D.R.Civ.P. 4 (d)(4). Judge Bohlman seconded.
A member asked what part (d)(4) would do that wasn't done by part (d)(3). A member indicated that part (d)(3) seemed to cover those within the court's personal jurisdiction while part (d)(4) covered those outside the court's personal jurisdiction.
A member commented that part (d)(4) had been part of the rule for many years and there was a substantial risk that deleting it without a thorough investigation might cause unforeseen consequences. A member suggested that staff be requested to obtain more background on part (d)(4) for the Committee.
A member stated that the Committee had dealt with the problem of how service required by statute should be accomplished. The member stated that part (d)(4) as amended was unnecessary because service required by an order could be made under the other provisions of N.D.R.Civ.P. 4.
A member noted that part (d)(4) referred to "a party" and asked, given that N.D.R.Civ.P. 4 is generally designed to explain how to obtain jurisdiction over "a person," why a subpart dealing with "a party" was necessary to the rule.
Another member observed that the federal rule and the Minnesota rule only deal with service of a summons and not with other types of service. A member commented that the reason part (d)(4) mentioned "a party" must be because it was meant to cover orders and notices that would be sent to someone already within the jurisdiction of the court. A member indicated that as such, it did not belong in N.D.R.Civ.P. 4.
The motion to delete N.D.R.Civ.P. 4 (d)(4) CARRIED 11-2.
The Committee discussed amending the explanatory note to conform with the changes made to the text of the rule.
Judge Simonson MOVED to delete a sentence of explanatory note that said that statutory procedure prevails over procedures set out in the rules. Judge Leclerc second.
Motion CARRIED unanimously.
Without objection, a line of the explanatory note dealing with letter designations was deleted.
The motion to adopt the proposed amendments and send the rule to the Supreme Court as part of the Annual Rules Package CARRIED 13-0.
DISCOVERY GUIDELINES (PAGES 69-79 OF THE AGENDA MATERIAL)
Staff reviewed the Committee's decision at the September 2002 meeting to consider adoption of some of the American Bar Association's Discovery Guidelines. Staff explained how the chosen guidelines had been integrated into several of the Rules of Civil Procedure as proposed amendments.
RULE 16, N.D.R.Civ.P. - PRETRIAL CONFERENCES, SCHEDULING, MANAGEMENT (PAGES 80-90 OF THE AGENDA MATERIAL)
Staff explained that the proposed amendments to N.D.R.Civ.P. 16 had been drafted to incorporate principles set out in the ABA's Discovery Guidelines.
Proposed amendments FAILED for lack of a motion.
A member expressed the opinion that the discovery guidelines were a solution in search of a problem. The member said that North Dakota does not have a problem with discovery in civil matters.
RULE 26, N.D.R.Civ.P. - GENERAL PROVISIONS GOVERNING DISCOVERY (PAGES 91-109 OF THE AGENDA MATERIAL)
Staff explained that the proposed amendments to N.D.R.Civ.P. 26 had been drafted to incorporate principles set out in the ABA's Discovery Guidelines and to be consistent with Fed.R.Civ.P. 26.
Judge Geiger MOVED to adopt the rule as amended. Judge Hilden seconded.
A member stated that North Dakota had gotten along for many years using the current formulation of N.D.R.Civ.P. 26. The member said that there was not significant dispute in North Dakota about the scope of discovery or about attorneys seeking overly broad discovery. The member said that discovery disputes that occur generally stem from good faith disagreements about privilege rather than from problems related to over broad discovery requests. The member said there was no need for the suggested changes, and if the changes were adopted it would overburden the courts.
A member said that there was merit in providing some sort of guideline for the courts to evaluate the relevancy of discovery requests. The member said that, in its current formulation, relevancy is not a prerequisite for discovery. As a consequence, it is possible to end up with volumes and volumes of material being disclosed in an action at great cost to the parties with no requirement that the material be relevant to the action.
The member said there was a need to have a standard that could be relied upon by judges to sustain an objection to discovery on the basis of relevance. The member said that a risk for abuse existed under the current formulation of the rule and that parties risked being subjected to undue expense in discovery.
A member commented that the proposed amendments to the rule would not be helpful in limiting abusive discovery. The member said that the tool parties should use to limit discovery if necessary is to seek protective orders as allowed by the rule. Another member said that parties have no interest in seeking discovery of unnecessary items because obtaining unnecessary material is also a burden on the party that obtains it.
A member said that the fact that discovery problems sometimes occur in small classes of cases, such as class actions, does not provide justification to change the rules that govern all cases. A member said that the rule as written provided courts ample authority to limit discovery when necessary.
A member said that courts have interpreted the current language of the discovery to rule out considerations of relevancy when resolving discovery disputes. The member said that the proposed amendment would allow courts to consider relevancy in discovery disputes.
A member noted that the ABA Discovery Guidelines were designed to reduce expense and delay in civil litigation. A member responded that North Dakota did not have a problem with delay. Another member responded that protective orders could be sought to deal with abusive discovery and that the Rules of Professional Responsibility bar attorneys from using delaying and cost-increasing tactics in litigation.
A member stated that any attempt to limit discovery to material relevant to specific claims or defenses was a back door assault on notice pleading, which does not require parties to set out their defenses in detail.
Mr. Plambeck MOVED to amend N.D.R.Civ.P. 26 to add language allowing courts to limit discovery of matters not relevant to the claims or defenses of the parties. Judge Geiger seconded.
A member stated that the proposed amendment did not add anything beyond what was already authorized by the rule. A member stated that the amendment would give parties the ability to argue that requested material was not relevant. A member responded that a court is allowed to grant a protective order whenever justice requires.
A member stated that wide ranging discovery requests are made because parties often "forget" what records or documents they have, making it necessary to ask for everything. The member said that allowing parties to limit what they turn over in response to discovery requests based on their own interpretation of what is relevant would make the concealment of discovery material easier. The member said that the broad discovery rule is fair because
it makes everyone show all that they have.
The motion to amend was DEFEATED 11-2.
The motion to adopt the proposed amendments and send the rule to the Supreme Court as part of the Annual Rules Package was DEFEATED 12-1.
The meeting recessed at approximately 4:00 p.m., January 30, 2003.
January 31, 2003 - Friday
The meeting was called to order at approximately 9:00 a.m., by Justice Dale V. Sandstrom, Chair.
RULE 30, N.D.R.Civ.P. - DEPOSITIONS UPON ORAL EXAMINATION (PAGES 110-124 OF THE AGENDA MATERIAL)
Staff explained that the proposed amendments to N.D.R.Civ.P. 30 had been drafted to incorporate principles set out in the ABA's Discovery Guidelines and to be consistent with Fed.R.Civ.P. 30.
The proposed amendments FAILED for lack of a motion.
RULE 33, N.D.R.Civ.P. - INTERROGATORIES TO PARTIES (PAGES 125-131 OF THE AGENDA MATERIAL)
Staff explained that the proposed amendments to N.D.R.Civ.P. 33 had been drafted to incorporate principles set out in the ABA's Discovery Guidelines and to be consistent with Fed.R.Civ.P. 33. Staff also explained that additional changes had been made to move instructions on deadline extensions from the explanatory note to the rule itself.
Judge Leclerc MOVED to adopt the rule as amended. Judge Bohlman seconded.
Mr. McLean MOVED to amend the proposed rule to eliminate proposed restrictions on the number of interrogatories that parties could serve. Ms. Moore seconded.
Motion CARRIED unanimously.
Mr. McLean MOVED to delete language from the proposed rule requiring that objections to interrogatories be served within the time for serving answers. Ms. Moore seconded.
A member commented that it was important that objections be served timely and that the proposed language requiring such timely service should not be deleted. However, another member responded that it was often impossible to object to an interrogatory until after the information applicable to the interrogatory was tracked down. Therefore, the member said that the best approach was to have any extension apply to both answers and objections. The member said that an objection cannot be made until the attorney knows that grounds for an objection exist.
A member said there should be a presumption that any extension applies to both answers and objections. Another member stated that the language that the motion would delete was not essential to the rule.
Motion CARRIED unanimously.
Judge Leclerc MOVED to amend proposed language of rule to clarify that any stipulated extension of time applies to both interrogatory answers and objections. Mr. Plambeck seconded.
A member asked whether adding such language would take away the parties' right to stipulate to a shorter deadline for objections. A member responded that any extension of a deadline to answer without an accompanying extension of the time to object would not be an extension at all. A member replied that N.D.R.Civ.P. 29 was designed to allow stipulations to anything that was agreeable among the parties and that the Committee should not take any steps to impair this right.
A member commented that situations were rare when a party would demand to receive objections before answers. The member said that if a goal of discovery reform was to reduce expense, it was fair to require any extension to apply to both answers and objections because this would limit duplicative work in response to interrogatories.
Motion CARRIED unanimously.
The Committee discussed making several changes to the explanatory note consistent with the amendments, and these changes were APPROVED without objection.
A member questioned removal of case citations from the explanatory note. The
member said that case citations could be removed, but recommended that the legal principles supported by the citations remain part of the explanatory note.
A member pointed out that language in part (b)(7) of the rule now existed explaining the legal principle in question, i.e., that an interrogatory does not need to be served a second time to trigger supplementation of the original response.
Judge Leclerc MOVED to delete material from the explanatory note that repeated material in the rule. Ms. Moore seconded.
Motion CARRIED unanimously.
The motion to adopt the proposed amendments and send the rule to the Supreme Court as part of the Annual Rules Package CARRIED unanimously.
RULE 37, N.D.R.Civ.P. - FAILURE TO MAKE OR COOPERATE IN DISCOVERY; SANCTIONS (PAGES 132-142 OF THE AGENDA MATERIAL)
Staff explained that the proposed amendments to N.D.R.Civ.P. 37 had been drafted to incorporate principles set out in the ABA's Discovery Guidelines and to be consistent with Fed.R.Civ.P. 37.
Judge Geiger MOVED to adopt the rule as amended. Judge Schneider seconded.
A member said that the proposed amendment was totally unnecessary. Another member responded that the proposed change was appropriate--parties should try to work out discovery disputes before they rush off to court.
A member said that no motion to compel should be brought without an attempt by the parties to resolve the discovery dispute. Another member agreed, explaining that sometimes getting a motion to compel is the first indication that there is a discovery problem. The member said that, if it were necessary for parties to confer about discovery disputes before making a motion to compel, this would save time and money for the parties and the court. The member said that the proposed amendment was an excellent idea.
A member said that a vast majority of motions to compel from creditors' attorneys facing pro se defendants and that it was unlikely that the creditors' attorneys would comply with the proposed provision.
A member said that the proposed requirement to confer would help attorneys weed out minor discovery problems before making a motion to compel. The member said that if attorneys confer before bringing a discovery dispute to court, the facts of the dispute will be developed enough so that the court will be able to make an informed decision about whether to impose discovery sanctions. The member said that if there is a good faith dispute among parties about discovery of certain material, the court should hesitate to impose sanctions.
Without objection, the language of the amendment was modified to remove a split infinitive.
The motion to adopt the proposed amendments and send the rule to the Supreme Court as part of the Annual Rules Package CARRIED 13-1.
RULE 21, N.D.R.App.P. - SUPERVISORY WRITS (PAGES 143-150 OF THE AGENDA MATERIAL)
Staff reviewed the Committee's discussion at the September 2002 meeting regarding the need for a supervisory writ rule. Staff explained that the proposed rule was based on the current motions rule and the federal extraordinary writ rule.
Judge Hagerty MOVED to adopt the rule as amended. Mr. Plambeck seconded.
A member indicated that it was important to set out the procedure for obtaining a supervisory writ in the rules because the legal community was not well-informed regarding supervisory writs.
A member commented that the rule's deadlines may be too tight--ten days to respond to a petition for a writ does not seem long enough. The member said requests for supervisory writs tend to deal with large issues and the time frames for responding to such requests should be equivalent to the time frames for responding to dispositive motions or appeals on the merits.
Several other members responded that it is necessary that the Supreme Court deal with supervisory writ requests quickly and short response deadlines, therefore, are necessary. A member suggested that if a party needs a longer time to respond, that such extension should be requested on a case-by-case basis.
A member suggested that the rule be modified to allow the court to act on a writ petition without a response being required, and that the court could fix a time for a response
if it felt one was necessary, as with petitions for rehearing.
The Chair explained that, under the current system, most petitions for supervision are denied outright without a response being required. The Chair said that petitions that are not denied often must be decided subject to narrow time constraints.
Mr. Plambeck MOVED to amend the proposed rule to incorporate language from Fed.R.App.P. 21 to make writ responses optional at court's discretion. Professor Bata second.
The Chair pointed out that the Committee needed to decide on a consistent way to designate the parties in a supervisory writ matter. The consensus seemed to be that the parties be called "petitioner" and "respondent" as in the draft rule.
A member asked how often it occurred that a party other than a judge was a respondent in a supervisory writ matter. A member answered that the non-petitioning party would be the respondent. The first member explained that the judge would have to be considered the respondent because it is the judge who the court is being asked to supervise.
A member said that the rule should not require a response from a respondent judge. A member indicated that the proposed language seemed to make any response from a judge to be at the option of the Supreme Court.
A member said that the language of the proposed amendment on responses to writs could be changed to eliminate the term "respondent" and this would remove any suggestion that a judge is required to respond to a writ.
Without objection, the suggested change was made to the proposed amendment.
The motion CARRIED 13-1.
A member observed that, under the proposed language, a judge would have no right to respond to a writ petition, but could only ask for permission to respond. The member observed that on some occasions, writ petitions have nothing to do with the other litigants, but instead involve a narrow dispute between the petitioner and the judge. The member said that in such a case, if the judge cannot respond, no one will.
Judge Simonson MOVED to delete language regarding the need for judges to seek permission to respond to a writ. Judge Hagerty seconded.
A member commented that perhaps any separate reference to judges' responses should be removed from the rule and judges should simply be treated like any other respondent. The member noted, however, that problems might occur if a judge took such an active role in opposing a petitioner that the petitioner felt obligated to seek the judge's recusal. The member said such a result was always a possibility if a judge actually chose to appear to oppose a writ petition.
A member responded that there would always be some cases where the subject of a writ petition is a matter of court administration and a judge would be the only person in a position to respond. The member said that judges generally would want to sit out if taking a position on a writ petition could be perceived as taking a position on the merits.
A member said judges should have the discretion to get in or stay out of a writ dispute.
Another member suggested that judges might be compelled to become involved in writ disputes involving unrepresented parties where all relevant information is not provided to the Supreme Court.
The motion to adopt the proposed amendments and send the rule to the Supreme Court as part of the Annual Rules Package CARRIED 14-0.
RULE 8.10, N.D.R.Ct. - WRITS (PAGES 151-154 OF THE AGENDA MATERIAL)
Staff reviewed the Committee's discussion at the September 2002 meeting regarding the need for a clear and consistent procedural rules for actions involving writs. Staff explained that the proposed rule was a work in progress based on the procedural language contained in North Dakota's existing writ statutes.
Professor Bata MOVED to adopt the rule as amended. Judge Leclerc seconded.
The Committee discussed how parties to a writ proceeding should be designated. A member suggested that parties to a writ proceeding in district court could be designated "plaintiff" and "defendant," while parties in the Supreme Court could be designated "petitioner" and "respondent."
A member commented that, even in district court, it is not uncommon for parties to be designated as "petitioner" and "respondent." The member indicated that these terms could be used to designate the parties in writ matters in district court. The member added
that the use of these terms would be consistent with the terminology the Committee approved for N.D.R.App.P. 21.
Judge Leclerc MOVED to replace "plaintiff" with "petitioner" and "defendant" with "respondent" in the proposed rule. Ms. Moore seconded.
Motion CARRIED unanimously.
A member raised the issue of what persons and/or parties should be designated as "respondent" under the rule. The member indicated that there should be some sort of linkage between writ actions and connected district court actions.
Professor Bata MOVED to add language indicating that all parties other than petitioner should be designated as respondent. Mr. McLean seconded.
A member indicated that it was necessary for all parties to any linked proceedings needed to receive notice when a petitioner sought a writ. A member said that the vast majority of writ proceedings were directed towards administrative agencies and that the party to who the writ was directed (such as an administrative agency) would be the only party that needed notice. The member said it would not be useful to require notice be given to additional parties.
A member explained that it was necessary to begin a new action--a special proceeding--to obtain an extraordinary writ. The member said it would be hard to devise language requiring notice be given to parties to related actions when in many cases there would be no related action. The member said it was hard to envision a case where a party to a civil action would somehow be denied notice if a writ action arose out of the civil action.
A member suggested that language be added requiring notice to all necessary and appropriate parties. A member suggested that the rule provide that all parties to the proceeding in district court be designated as respondents. A member objected that a special proceeding is still different than an ordinary civil action.
Motion CARRIED unanimously.
A member expressed concern that the provision of the rule providing that the civil procedure rules apply to writ actions would bar courts from summarily denying a writ. Staff explained that there was room for modification of the rule as provisions from other writ statutes were incorporated.
A member indicated that the rule as presently written was too limited as it applied only to writs of certiorari, mandamus and prohibition. The member said that the provision could read, "this rule applies to special proceedings for writs," without specific ones delineated.
A member said it was especially important to indicate that the rule applied to "special proceedings" so that it would embrace all types of writs. A member suggested that the rule refer to "extraordinary writs" instead of naming specific writs, so that all types of writs would be included.
A member advised that, in the explanatory note, if the rule was superseding only a part of a statute, the specific part be designated. Another member stated that it was not clear at this point which statutes the rule would supersede.
Judge Simonson MOVED to postpone further consideration of the rule to a future meeting. Ms. Moore seconded.
Motion CARRIED unanimously.
RULE 8.5, N.D.R.Ct. - DOMESTIC RELATIONS SUMMARY PROCEEDINGS (PAGES 155-170 OF THE AGENDA MATERIAL)
Staff explained that the rule was set to expire March 1, 2003, and the Committee needed to decide whether to extend it.
A member explained that the Northeast Central Judicial District had been using the rule for several years. The member said the Northwest Judicial District had used the rule and the North East Judicial District was planning on experimenting with the rule. The member indicated that effectiveness of the rule had not been evaluated as planned.
The member said the rule seemed to work well, especially among parties that had agreed about most issues relevant to a divorce. The member advised that the rule be made permanent.
A member said that the only reason to continue the rule as a temporary pilot project would be to gather more information about its effectiveness. The member said if no information gathering was planned, it was not useful to continue the rule as a pilot project. The member indicated that the procedure under the rule should be made available in districts that wanted to use it.
Judge Bohlman MOVED to amend the rule to make it permanent. Ms. Moore seconded.
A member suggested that the provision of the rule allowing the presiding judge to designate judges who use the rule be removed. Another member stated that it was necessary to retain this provision so that each district could make its own decisions about how to use the rule.
A member commented that the Northeast Judicial District wanted to implement the rule and would be ready to implement it soon. The member said the rule was a useful way to limit the cost of litigation for some parties. The member suggested that, if the Committee decided to retain the rule, it could consider basing eligibility to use the rule on party income instead of party assets.
A member said judges who wanted to use this procedure should be allowed to do so. The member said the procedure had its flaws, particularly its reliance on net assets as the qualification for use and its lack of provisions for discovery and interim orders. A member responded that if the judge or a party decided that the procedure was inappropriate in a given case, the use of the procedure could be precluded.
A member said that the rule was not a necessity for pro se litigants, who could still file divorce actions without lawyers using readily available forms. Several members indicated that additional pro se forms were being developed.
The motion to adopt the rule on a permanent basis and send it to the Supreme Court as an emergency measure CARRIED 14-0.
RULE 13, N.D. Sup. Ct. Admin. R. - JUDICIAL REFEREES (PAGES 171-192 OF THE AGENDA MATERIAL)
Staff explained that a conflict had developed regarding the appropriate standard of review for a district court's consideration of a referee decision and that proposed amendments had been drafted to incorporate a deferential standard of review into the rule.
Judge Leclerc MOVED to adopt the rule as amended. Judge Simonson seconded.
A member stated that judges should be able to use their discretion to overturn referee decisions. The member said that it was inappropriate to impose a "clearly erroneous" standard on judges reviewing referee decisions. The member suggested that the district
court be allowed to review referee decisions on a de novo basis.
The member said that it would be appropriate for the Supreme Court to apply a clearly erroneous standard to a district court's findings, but a district court needs to be able to exercise more authority over a referee's findings. The member said that the main problem with the rule was that there was no standard set out at all.
The Chair explained that the Supreme Court--the court had determined that the clearly erroneous standard applied to a district court's review of a referee decision and that the proposal before the Committee expressed this standard of review. The Chair indicated that if the Committee wanted a different standard to apply, the Committee would need to develop different language for the rule.
A member indicated that "de novo on the record" might be an appropriate formulation of the standard that should apply. A member indicated that the court should be able to hold a hearing if necessary to gather additional information. Another member pointed out that a referee's decision is considered final, and no review by the district court done at all, if no party challenges the decision in a set period of time.
A member indicated that the best thing to do might be to bring the rule back for further consideration at a future meeting. The member said that a formulation that allowed judges to perform a de novo review and to gather additional evidence if the court felt necessary would address the concerns expressed by the Committee.
A member said that it would be unworkable to allow judges to insert additional findings of fact alongside referee findings. The member said it would be better to allow judges to remand findings back to the referee if additional findings were necessary.
Another member said that district courts should be allowed to adopt referee findings as appropriate and to make additional findings of its own--any findings that ultimately come out of the district court would be considered the district court's findings.
A member said it was necessary for the Committee to draft new standard of review language for the rule because the Supreme Court had interpreted the present language of the rule to require a "clearly erroneous" review of referee findings.
A member said that some options for a redrafted rule would be to allow the district court: to use a de novo standard of review to reverse a referee's findings; or to adopt a referee's findings; or to remand to a referee for additional findings.
Judge Schneider MOVED to postpone discussion on the rule until the April 2003 meeting. Judge Leclerc seconded.
Motion CARRIED unanimously.
The meeting adjourned at approximately 12:00 noon.
Michael J. Hagburg