MINUTES OF MEETING
Joint Procedure Committee
September 28, 2017
TABLE OF CONTENTS
Rule 3.5, N.D.R.Ct., Electronic Filing in the District Courts 2
Rule 7, N.D.R.Civ.P., Pleadings AllowedForm of Motions and Other Papers 10
Rule 10, N.D.R.Civ.P., Form of Pleadings 12
Appendix K, N.D.R.Ct., Electronic Filing Requirements 12
Rule 34, N.D. Sup. Ct. Admin. R., Rule Regarding Domestic Violence Advocates 13
Rule 43, N.D.R.Civ.P., Evidence 15
Rule 56, N.D.R.Civ.P., Summary Judgment 16
Rule 24, N.D.R.Crim.P., Trial Jurors 19
Rule 32, N.D.R.Crim.P., Sentence and Judgment; Rule 51, N.D. Sup. Ct. Admin.R., Sentencing OffendersMortality Table 19
Rule 35, N.D.R.Crim.P., Correcting or Reducing a Sentence 21
Rule 3, N.D.R.App.P., Appeal as of Right - How Taken 22
Rule 12, N.D.R.Juv.P., Discovery 23
CALL TO ORDER
The meeting was called to order at 9:00 a.m., on September 28, 2017, by the Chair, Justice Lisa Fair McEvers.
Justice Lisa Fair McEvers, Chair
Honorable Todd L. Cresap
Honorable Bradley A. Cruff
Honorable Donald Hager
Honorable Gail H. Hagerty
Honorable Steven L. Marquart
Honorable Steven McCullough
Honorable Robin Schmidt
Mr. Bradley Beehler
Mr. Birch Burdick
Mr. Sean Foss
Mr. Robert Hoy
Mr. Zachary Pelham
Mr. Kent Reierson
Mr. Robert Schultz
Mr. Lloyd Suhr
Honorable Laurie Fontaine
Honorable William A. Herauf
Prof. Margaret Jackson
Ms. Carol Larson
Larry Zubke, Director of Technology, and IT staff member Jonathan Paul demonstrated improvements to the Attorney Subscription Management System.
APPROVAL OF MINUTES
Judge McCullough MOVED to approve the minutes. Judge Marquart seconded. The motion to approve the minutes CARRIED.
RULE 3.5, N.D.R.Ct., ELECTRONIC FILING IN THE DISTRICT COURTS (PAGES 24-32 OF THE AGENDA MATERIAL)
Staff explained that the Supreme Court had sent the rule changes proposed in the committee's annual petition to amend court rules out for public comment, including the committee's proposed changes to Rule 3.5. Staff said the Court had received a substantial comment from attorney Ariston Johnson relating to Rule 3.5 and proposed Appendix K. Staff presented Mr. Johnston's comment to the committee along with suggested amendments to Rule 3.5 intended to respond to issues raised in the comment.
The Chair said that the file and serve subcommittee, which did the initial work on Appendix K, did not intend to include every rule that might relate to filing. The Chair said Appendix K was intended to be a quick guide for clerks to use in deciding whether to accept or reject a submitted document. The Chair said there might be some reasons not included in
Appendix K that a clerk might need to apply in rejecting a document. The Chair said if this happens, the clerk would contact the attorney with an explanation. The Chair said allowing clerks some flexibility in rejecting documents was necessary.
A member asked whether the clerks would contact attorneys before rejecting a document. A member said this might depend on what county the clerk was from. A member said it should depend on what language was in the rule. The Chair said there would always be training issues involved in implementing a rule directive and it was impossible to have absolute consistency in a court system spread over 53 counties with hundreds of employees. The Chair said that doing everything the same in every case would only be possible if the court system had centralized filing.
A member asked whether every county was using the same reasons in rejecting documents. The Chair said one purpose of Appendix K was to provide a standard set of rejection reasons. A member said that generally when a document is rejected, the attorney gets a notification email with a short comment on the reasons for rejection. The member said it is sometimes necessary to call the clerk's office to get clarification on what changes are needed on the document.
A member asked for an example of a reason for rejection not contained in Appendix K. A member said this would likely be something that would arise in a particular case. A member who had contacted Mr. Johnson said Mr. Johnson was in favor of Appendix K being the standard because over the history of Odyssey, clerks have sometimes provided inconsistent reasons for rejecting documents. The member said that before Odyssey, attorneys mailed documents to the clerk's office and the documents got filed and in the rare case of a problem, the clerk contacted the attorney with a full explanation.
A member said the Supreme Court has more detailed rules for filing than are in Appendix K. The member said if there is a problem with a document, the Supreme Court will typically accept the document, contact the attorney to explain the problem, and give the attorney 7 days to file a corrected document. The member said if the committee thought clerks should be allowed to reject documents for reasons not found in Appendix K, implementing a procedure like the Supreme Court's might be useful.
A member said a catch-all provision would be advisable. The member said catch-all provisions are common in the rules because it is impossible to anticipate and enumerate every circumstance that might arise. The member said it would be wise to require the clerk to identify the specific rule supporting the rejection if a document is rejected for a reason not contained in Appendix K. The member said it is advisable to discourage rejections outside of Appendix K and allow such rejections only when there is a specific rule that requires it.
A member said the staff at the Supreme Court is supervised by law trained clerks and have more expertise than county clerk staff. The member said that county clerk staff had also been reduced due to budget cuts. The member said it was not reasonable to expect county clerk staff to be able to look up and cite specific rules when rejecting documents. A member replied that this would only be required if the reason for rejection was not covered under Appendix K. The member said that the filings should not rejected on a whim but based on some kind of authority that can be cited.
A member said that the best approach would be to have the clerk make contact with the filing attorney if rejecting a document for reasons other than those in Appendix K. The member said this would give the clerk an opportunity to explain the rejection and for the attorney to respond. A member agreed that contacting the attorney is the better approach because there is substantial turnover and continual training and retraining in county clerk positions. The member said county clerk positions are also understaffed and clerks are not in a position to do research. A member said contact with the attorney resolves most filing issues in a minimal time. The member said that a proactive attorney will call the clerk ahead of time if planning to file any documents that could be problematic and get advice on the best approach for filing.
A member asked about the suggested amendment at line 79 on page 29, the addition of the words "by the court" to the approved provision requiring counsel to use the Attorney Subscription Management System for notice of filings. Staff said the suggested language was intended to limit the number of events attorneys would need to sign up to receive notice of through the system. A member said that, given the number of possible events that attorneys can get notice of, it would be essential to identify those events that are "by the court." A member said the best system would be to identify possible events that could come from a court and not allow attorneys to opt out of these notices. A member said one way to do this would be to have a button on the sign up screen that would allow attorneys to select all "court filings," i.e., memoranda, orders, and findings. A member said if identification of all "by the court" events is not done, there is a risk of setting attorneys up for failure to comply with the rule because they missed checking something.
The Chair suggested that the committee work through all the proposed new language for the rule and decide step-by-step which changes it wished to approve. The Chair asked the committee to first look at the language related to compliance with Appendix K at lines 41-42 on page 28.
A member said the committee had already approved this language so no motion was needed if it wished to keep it as is. A member suggested the language be moved as it did not seem to belong in the "time of filing" section of the rule. The member said if the language
was put in its own subsection, a clerk flexibility provision could be added if needed.
A member suggested that the clerk flexibility language could be added to Appendix K instead of changing the rule language. A member replied there was no obvious good place to put the flexibility language in Appendix K. A member also said that attorneys will probably be referring primarily to the rule itself while relying on their staff to apply the technical provisions in Appendix K.
A member said the Appendix K language could be moved to subdivision (b) which covers filing formats.
Judge McCullough MOVED to transfer the sentence on page 28, lines 41-42, and make it a new paragraph (3) after line 32 on page 27. Mr. Schultz seconded.
A member asked whether it should be specified in the rule that a document submitted for electronic filing must comply with Rule 3.5 as well as the other rules. A member said the language should first specify what steps a clerk must take when rejecting a document for reasons outside of Appendix K. A member said that the clerk should notify the filing party of the proposed reasons for rejection.
A member asked whether there should be a time standard for notifying the party. A member said it would be ideal if the clerk notified the party before actually rejecting the document. A member said now, attorneys get immediate electronic notice that a document has been accepted and perhaps an hour later may get notice it is rejected with a comment on the rejection reasons. A member said there is always some interim period between the initial notice and the rejection notice. The member said that ideally the clerk would contact the attorney during this interim period to notify the attorney that rejection is being contemplated.
A member asked whether the clerk could contact the attorney by email with the information that rejection is being contemplated. A member said a phone called would be the preferred approach. A member said this would put a burden on the clerk to track down an attorney who may be in and out. A member said that the email notice could specify that the document would be rejected unless the attorney contacts the clerk for fuller explanation.
A member asked whether there was some sort of rule or business practice that required the clerk to accept or reject a document within a given time. A member said 24 hours was probably the standard in the clerk's manual, although there is no penalty for exceeding this.
A member asked what percentage of filings are actually rejected. The member said with an unusual filing or circumstance, a quick call to the clerk usually will resolve all issues ahead of time. The member said when this practice is followed, not many documents are rejected. A member said most rejections were probably traceable to out-of-state attorneys who are not familiar with the process. The member said in the early days of using Odyssey there were frequent rejections but now they are few and far between and easily remedied.
A member said there is inconsistency between different courts on rejections and some reject a lot more documents than others. The member said it is not necessarily the document but where it is being filed. A member replied consistency should be the goal.
A member said the only way to assure that the clerks have flexibility in rejecting documents is to put language in the rule that allows for rejection outside of Appendix K. The member said the downside of this would be that clerks would have to understand the other applicable rules and be able to cite them. The member said now, clerks are not supposed to be accepting documents that are not in compliance with the rules or to be rejecting those that are in compliance.
A member said there will always be exceptions and the rule should allow clerks flexibility to recognize these exceptions. A member said, for example, that Rule 3.1 requires the case number to be in the upper right hand corner of the first page of the document. A member said most clerks will accept the document even if the case number is located elsewhere, but others will say the document should be rejected. A member said the rule should be amended if most clerks do not think it needs to be followed.
A member said that the committee should guard against creating a hard and fast rule that might provide ammunition for lawyers to argue that documents that should have been rejected under the rules should be considered never to have been filed. A member said the rule now says that parties filing documents must comply with Appendix K; it does not say clerks cannot accept documents not in compliance with Appendix K nor does it say clerks cannot reject documents not in compliance with another rule. The member said the committee now only needed to fill in language on how a party would be informed about why their document was rejected.
Judge McCullough MOVED to add language to the end of paragraph 3: "Before a document may be rejected for a reason other than that specified in Appendix K, the clerk must notify the filing party of the possible rejection." Mr. Schultz seconded.
A member asked what the clerk's office is expected to do when they telephone the attorney and tell them that they are thinking of rejecting a document. The member asked
whether the clerk is expected then to engage in a conversation with the lawyer and make a determination on the problem. The member said it is possible the clerk's office could spend its whole day engaged in these kinds of dialogues, especially with lawyers who do not agree with the clerk's interpretation.
A member said the proposed language was intended to be vague because different clerk's offices and different attorneys operate in different ways. The member said the purpose of the language was to make sure there was a notification of the reason for rejection before a rejection takes place. The member said the language left it open for the attorney to try and work with the clerk or to take another approach while giving the clerk's office the flexibility to make the notification in whatever way works best for them. A member said the clerk could just send a notification email and not engage in any back and forth with the attorney.
A member said that under the proposed language, the clerk would not be able to reject a document until they notified the filing party and some sort of dialogue would likely need to follow. The member said it would be simpler if the clerk simply notified the filing party of the rejection and cited the reason for it. A member said that clerks already do this. A member said that perhaps a requirement for the clerks to inform the filing party of the reason for the rejection could be written in the rule.
A member said it would be simpler if the clerk could only reject for a reason listed in Appendix K. The member said allowing flexibility would encourage the lack of uniformity that members have complained about.
The Chair said filings forbidden under the new vexatious litigant rule are a type of filing not dealt with by Appendix K. The Chair said these are filings that would be rejected according to a court order.
A member said the intent of the proposed changes was to make it easier for the clerks to figure out their own method to inform parties of the possibility of rejection. The member said it was unlikely that Cass County would be able to call every filer about a possible rejected document but that others may prefer that method. A member said attorneys would prefer to talk it over before a clerk rejects a document but this might be unrealistic. The member said it is reasonable to ask a clerk to provide the reason for rejecting a document when rejection is based on a reason outside of Appendix K. The member said requiring the clerk to provide the reason before rejection would create an open window of time when the document would be in limbo.
A member said requiring the clerk to provide a reason when a document was rejected
would eliminate the debate aspect, the clerk would simply notify the party the document was rejected and provide the reason why. A member said the clerk's policy manual is what the clerks are trained from and it provides the rejection reasons. A member said the clerk's policy manual is the same in every district: it is the interpretation that leads to different approaches to rejecting documents.
A member asked whether there was already language in the rule requiring a reason to be given when a document is rejected. A member said paragraph (c)(2) required the clerk to inform the filer whether a document had been accepted or rejected but did not require a reason to be given. A member said language could be added to this paragraph on requiring the clerk to provide a reason.
Mr. Reierson asked to call question on Judge McCullough's motion.
Judge McCullough MOVED to add language after page 27, line 40: "If rejected for a reason other than that specific in Appendix K, the clerk must notify the filer of the authority upon which the rejection was based." Mr. Schultz seconded.
A member said "authority" referred to the statute, rule or order on which the rejection was based. A member said "reason" was shorter than "authority" and was really what a filer would want the clerk to provide. A member replied that having the statute rule or order would be more useful to the filer in correcting the submission. A member said requiring a reason would require the clerk to provide some rationale in rejecting a document. A member said that current rejection notices usually provided a reason but rarely a citation to authority. The member said having the citation would be great for attorneys but probably burdensome to court staff.
A member said that the file and serve subcommittee attempted to incorporate into Appendix K the vast majority of reasons for rejecting a document. A member said if there is a legitimate reason for rejection outside of Appendix K it should not be too difficult for the clerk to provide the authority. The member said requiring this authority might also reduce the number of rejections outside of Appendix K, which would be a good result. A member agreed that requiring clerks to cite to authority when making a rejection outside of Appendix K is appropriate because it could help increase consistency in rejections.
A member said requiring authority may not be a good idea if the requirement can be satisfied just by citing to Appendix K rather than the specific provision underlying the rejection.
Judge Hagerty MOVED to amend the motion after "the clerk" to read "must notify the filer of the reason for the rejection." Mr. Beehler seconded.
A member said the difference between the motion language and the amendment was the use of the word "reason" rather than "authority."
Motion to amend motion FAILED 7-8.
A member said the problem with using "authority" is that it does not adequately define what is expected from the clerk. The member agreed that the problem with requiring greater specificity is that it may place a burden on the clerks.
Mr. Hoy MOVED to amend the motion to substitute language on page 27 after line 40: "A notice of rejection must state the specific reason for the rejection." Judge Marquart seconded.
A member said the motion is aimed at avoiding the clerk to send two notices and also to require some degree of specificity in the notice. A member said that any reason for a rejection needs to be based on some sort of legal authority. A member said that clerks of court who are not lawyers will be sending the rejection notices. The member said the word "reason" has more meaning to a non-lawyer than "authority."
A member said that requiring the clerk to cite to a specific section of Appendix K or other authority would be useful. The member said that about 99 percent of the rejections will be based on Appendix K and for the filer to know the section on which rejection was based is important. A member said it is not very burdensome to require specificity. A member said getting a nebulous rejection reason is not helpful.
The Chair said the file and serve subcommittee that created Appendix K intended clerks to cite to specific sections when rejecting. The Chair said filers will never be able to eliminate problems leading to rejections unless they know the specific reasons.
Motion to amend motion CARRIED.
Judge McCullough MOVED to amend the motion after the word "specific" to substitute: "provision of Appendix K or other statute, rule or case." Judge Cruff seconded.
A member asked whether "order" should be included in the proposed list. A member said in the case of vexatious litigants, the rule could be cited. A member said that "case" might also apply since vexatious litigants are barred from filing in a specific case.
A member asked whether local district case flow policies would be covered under the proposal. A member asked clerks how they would reject cases under a case flow policy. A member said all districts are required to have these policies.
By unanimous consent, "relied upon" was added to the end of the motion language.
Motion to amend motion CARRIED.
Motion as amended CARRIED.
Judge Schmidt MOVED to delete the language on page 28 at lines 46-48 beginning with the words "A party." Judge Marquart seconded.
Staff said the language requiring the filing of a document by a party seeking to take advantage of the tolling provision had been inserted by the Supreme Court when it first approved the tolling provision.
Mr. Beehler MOVED to add "by the court" after the word "filing" to page 48, line 79. Judge Schmidt seconded.
Staff said adding the language would make it clear that lawyers are not required to subscribe to all filing notices but only to notices of filings made by the court.
Staff was instructed to add language to the explanatory note to account for the additional changes to the Rule 3.5 text.
A member asked about a change on page 29, line 72, deleting the word "mailed" and substituting the word "delivered." The Chair said this change had been approved at the last meeting. Staff said that amendments to all the rules that had applied the "three day rule" to filings made electronically had been submitted to the Court as part of the committee's annual rules petition.
RULE 7, N.D.R.Civ.P., PLEADINGS ALLOWEDFORM OF MOTIONS AND OTHER PAPERS (PAGES 37-38 OF THE AGENDA MATERIAL)
Staff explained that proposed Appendix K (c)(1) requires individual documents to be
filed separately but also notes that Rule 7 allows a motion to be made as part of a notice of motion. Staff presented a proposed amendment to Rule 7 that would delete this language.
Judge Marquart MOVED to approve proposed amendments to Rule 7 with the deletion of lines 15-16. Mr. Beehler seconded.
A member asked if the change would eliminate the ability to do a combined notice of motion and motion document. Staff said that was the intent. A member said this is one of the cases where different courts do different things. The member said some courts have rejected combined notice of motion and motion documents even though they seem to be allowed by the rule. The member said changing the rule could help bring more consistency.
The Chair noted that the title and text of the rule contained the word "papers." The Chair said that the Court had been working to eliminate all references to "papers." Staff said references to papers had been eliminated in the Court's last review of the appellate rules but the civil rules had not yet been scrubbed.
Judge Hagerty MOVED to delete language "and other papers" throughout Rule 7. Judge Marquart seconded.
A member said if "pleadings" are defined narrowly and if "other papers" are not allowed this may create a problematic situation, especially in debtor/creditor cases. The member said that using "other documents" rather than "other papers" would be preferable.
A member said taking out "and other papers" on page 37, line18, might create confusion about form and captions for documents such as briefs and affidavits.
By unanimous consent, the motion was amended to change "and other papers" to "and other documents" on page 37, line18.
A member said the meaning of "and other documents" is not clear. The member said presumably briefs and affidavits are "other documents," but it was unclear whether exhibits would fall into this category and now require captions under the proposed language. The member said the rule needs more specificity. A member replied that adding specificity might be helpful but to do it would require large scale changes throughout the rules. The member said documents is now a term of art that has replaced papers.
RULE 10, N.D.R.Civ.P., FORM OF PLEADINGS (PAGES 39-40 OF THE AGENDA MATERIAL)
Staff explained that proposed Appendix K (a)(3) requires exhibits to pleadings to be filed as separate documents while Rule 10 allows attachments to pleadings. Staff presented a proposed amendment to Rule 10 that would delete the reference to attachments and refer instead to documents filed in conjunction with pleadings.
Judge Schmidt MOVED to approve the proposed amendments to Rule 10. Judge Marquart seconded.
A member said it might be better if the proposed language specifically referred to attachments and exhibits. The member said the proposed language seemed to suggest that everything filed in the same time frame as a pleading will be considered part of the pleading.
APPENDIX K, N.D.R.Ct., ELECTRONIC FILING REQUIREMENTS (PAGES 33-36 OF THE AGENDA MATERIAL)
A member asked whether Appendix K needed to be amended to be consistent with the committee's work on the other rules. The member said that the vexatious litigant rule was not specifically addressed in Appendix K. A member said the amendments to Rule 3.5 seemed to encompass the vexatious litigant rule. A member said it would be good to get input from the file and serve user group before making amendments to Appendix K.
Mr. Foss MOVED to delete language on page 34, lines 39-43, beginning with the word "An." Mr. Hoy seconded.
A member said the language was no longer needed because the committee was recommending deletion of the part of N.D.R.Civ.P. 7 referenced at this point in Appendix K.
Judge McCullough MOVED to submit the suggested amendments to N.D.R.Ct. 3.5, N.D.R.Civ.P. 7 and 10, and N.D.R.Ct. Appendix K to the Supreme Court and to suggest also that the file and serve user group consider whether to further amend Appendix K to account for the vexatious litigant rule. Judge Schmidt seconded.
RULE 34, N.D. Sup. Ct. Admin. R., RULE REGARDING DOMESTIC VIOLENCE ADVOCATES (PAGES 45-62 OF THE AGENDA MATERIAL)
Staff said that the Supreme Court referred a request to the committee from CAWS North Dakota. CAWS proposes amendments to Rule 34 allowing advocates to assist in sexual assault restraining order proceedings under N.D.C.C. § 12.1-31-01.2. Staff said the Court requested the committee to gather comments on the CAWS proposal. Staff presented CAWS's proposed amendments and the comments on the CAWS proposal to the committee.
Judge Marquart MOVED to approve the proposed amendments to Rule 34. Judge Cruff seconded.
A member said it was good to have the advocate in the courtroom to assist but that allowing the advocate to cross-examine the respondent clearly went too far. A member said the Francis v. Francis case set limits on the role of the advocate.
Judge Marquart proposed to amend the proposal to delete lines 54-55 on page 49. Judge Schmidt seconded.
A member said under the proposed amendment the advocate would not be allowed to address the court. A member said, since the Francis case, advocates in Cass County had not been allowed to address the court. The member said advocates still sit next to the petitioner in court and consult with the petitioner throughout the proceeding. A member said it seemed a better system to have petitioners speak for themselves rather than having the advocate speak for them.
A member said the problem with the provision allowing the advocate to address the court was that it relied on the judge's discretion and some judges allowed the advocate to play a much bigger role than the rule seemed to allow. A member asked whether it would be better not to allow the advocate to sit with the petitioner because then petitioners would be required to speak for themselves. A member said it is helpful to allow the advocate to sit with the petitioner.
A member said the proposed amendment is a good idea because it better defines the role of the advocate and makes it clear they are not allowed to address the court. A member asked if anything would be lost if the advocate could no longer address the court when the judge allowed. The member said the advocate is in the courtroom because they understand the process and know what kind of information the court is looking for. A member asked
whether judges would have to take on a broader role if advocates were no longer allowed to address the court.
A member said in these proceedings neither the petitioner nor the respondent were generally represented by counsel so the court typically would take more time to explain what was going on to both sides. The member said that the advocate would probably have worked with the petitioner prior to the proceeding and was allowed to further assist during the proceeding. The member said most judges were not currently allowing advocates to make oral or written statements and approving the proposed amendment would simply formalize current practice.
The Chair said these proceedings were not much different than other proceedings that typically involve self-represented parties, such as evictions. The Chair said the judge will need to tell the parties what is going to happen and what the judge needs to know. A member said judges usually ask most of the questions when a proceeding involves two self-represented parties. A member responded that this puts the judge in an uncomfortable position because the judge will have to extract the information that is ultimately going to allow one side to prevail over the other. A member said a judge did not need to become an advocate in questioning a self-represented party and could rely on general, open ended questioning.
The Chair said some of the language in the proposal was awkward and imprecise, such as using "sexual violence" when "sexual assault" was the more accurate term. The Chair said the rule should use the terms "domestic violence" and "sexual assault" because those were the terms used in the statutes.
Judge Hagerty MOVED to amend the rule title to be "Advocates for alleged victims of domestic violence and sexual assault" and to make consistent amendments throughout the rule. Mr. Hoy seconded.
A member said the title needs to be more specific because the advocates were authorized to be involved in protection order cases, not all cases involve domestic violence or sexual assault.
By unanimous consent, the motion was amended to change the title to "Advocates for alleged victims in civil protection order cases."
A member asked whether there is such a thing as a certified domestic violence sexual assault advocate. A member replied that we have domestic violence advocates now and they will be certified as domestic violence sexual assault advocates after getting two more hours of training.
By unanimous consent, line 30 was amended to change "40" to "42" to reflect the additional two hours of training required.
Judge Schmidt MOVED to send the rule as amended to the Court immediately. Mr. Hoy seconded. Motion CARRIED.
RULE 43, N.D.R.Civ.P., EVIDENCE (PAGES 69-72 OF THE AGENDAMATERIAL)
Staff said Unit 1 court administrator Scott Johnson suggested some changes to the rules relating to interpreters, specifically adding jurors to the list of people who may receive interpreter services. He also suggested adding a paragraph referring to the new sexual assault restraining order statute, N.D.C.C. § 12.1-31-01.2, to Administrative Rule 50. Staff presented proposed rule amendments based on Mr. Johnson's suggestions.
Judge McCullough MOVED to approve the proposed amendments to Rule 43. Mr. Schultz seconded.
A member said North Dakota's jury qualification statutes require an ability to speak English and allowing non-English speaking jurors would be contrary to this requirement. The Chair said it would be acceptable under N.D.C.C. § 28-14-06 to allow an interpreter for a hearing impaired English speaking juror but not for a foreign language speaker. The Chair said a non-English speaking juror could be challenged for cause. A member said that in a criminal case especially, a defendant has the right to have a juror who can understand English testimony.
A member said a problem with allowing interpreters for jurors is that the interpreter has to go into the jury room for deliberations, becoming a 13th juror. A member said the committee should look into what the federal government has done with the question of providing interpreters for jurors, given that the issue of interpreters has been a major federal concern in recent years.
A member said that people who cannot hear go through life picking up additional communication skills, learning to understand body language and facial expressions. A member said a hearing impaired juror would bring heightened abilities to a trial. The Chair said there is a clear difference between allowing hearing impaired jurors and allowing non-
A member said getting interpreters of any kind is a major problem in small town North Dakota. A member said that providing interpreters for hearing impaired jurors would delay the case in these locations. A member said the Minnesota case that involved a deaf juror showed the amount of preparation needed.
A member asked whether having a blind juror would create a similar problem. The Chair said that the juror qualification statute might allow dismissal of jurors with disabilities such as deafness or blindness, possibly in conflict with the Americans with Disabilities Act.
A member said it is important to gather research on the position the federal government is taking on allowing non-English and disabled jurors. The member said it is arguable that if non-English speakers are excused from a jury as a matter a course, a similarly non-English speaking defendant could argue that a resulting jury panel was biased.
A member said the federal district court website states that a person who cannot speak, read, write and understand the English language is not qualified to serve as a juror in federal court. A member said this is similar to the qualifications set out in the state juror qualification statute. A member said it was the Department of Justice that had been driving the issue of expanded access to interpreters in court.
A member said it would be interesting to see what position advocacy groups for the hearing impaired and disabled were taking on jury service.
A member said that real time court reporters have worked with deaf jurors in previous cases in the state. A member said using a real time court reporter in the jury room would be a problem.
A member said disqualifying deaf or blind jurors on the basis of their disability does create a fairness issue but the state should not act precipitously on expanding jury service without looking at more examples from how other jurisdictions have done this.
Staff was instructed to conduct further research and bring the proposal back at the next meeting.
RULE 56, N.D.R.Civ.P., SUMMARY JUDGMENT (PAGES 87-95 OF THE AGENDA MATERIAL)
Staff said committee member Kent Reierson has requested that the committee
consider adding a deadline for reply briefs in summary judgment matters. Staff presented proposed amendments to Rule 56 based on the U.S. District Court's local rules, which establish a 14-day deadline for reply briefs when a dispositive motion is made.
Mr. Pelham MOVED to approve the proposed amendments to Rule 56. Mr. Foss seconded.
A member said that with 14 days allowed to submit a reply brief, there might not be enough time before trial for the judge to make a decision and write a memorandum opinion. A member said if the deadline for submitting a summary judgment motion is set 6 weeks before trial, there should be enough time. A member said even 90 days before trial would generally be long enough.
A member asked whether it made sense to require the motion to be served at least 34 days before the hearing date when the reply brief would not be due until 44 days after service. The member said no lawyer would set a hearing before the time allowed for all briefs to be served. A member said even without the reply brief deadline, lawyers generally try to set a summary judgment hearing for 45-60 days after the initial motion is served. The member said, however, that it is sometimes difficult to find a hearing time due to crowded court calendars. A member said there is a need to provide in the rule for the hearing time to be set at a point that allows for all briefs to be completed.
A member said in Minnesota everything is required to be filed 14 days before the hearing. A member said without a pre-filing requirement like this, the non-moving party might not get the reply brief until right before the hearing.
Judge Hagerty MOVED to amend lines 9-10 on page 88 to read "The motion and supporting documents must be filed at least 90 days before the day set for trial and 45 days before the day set for hearing." Judge Schmidt seconded.
A member said the proposed timelines would not give the judge much time to examine the briefs before the hearing if all the parties use all the time the proposal gives them. A member said a judge will generally get notice from the clerk's office that a motion and a response has been filed so the judge does not need to wait for the reply brief. A member said even if the reply brief does not come in until just before the hearing, the judge will generally take the motion under advisement and will have time to review all submissions before reaching a decision.
A member said it would make it difficult for the responding attorney to adequately respond if the reply brief does not arrive until just before the hearing. A member said a
greater concern is that under the current rule, the hearing could be set just before trial which leaves the judge with no time to make a reasoned decision and can lead to the trial being postponed.
A member said proactive attorneys request a scheduling order requiring dispositive motions to be filed well before trial so that time would not need to be wasted on trial preparation if not needed. The member said the proposal sets a bare minimum time for filing before trial but nothing prevents an attorney from filing a dispositive motion earlier. The member said the goal of a summary judgment motion is to avoid trial and an attorney who seeks this goal will file the motion well in advance of trial to give the judge plenty of time to decide it. A member said that summary judgment motions do get filed right before trial even when there are scheduling orders and the purpose of such late filings seems to be to cause the opposing party to waste trial preparation time in responding. The member said putting deadlines into the rule as proposed is a good idea.
A member asked whether a scheduling order that requires a dispositive motion to be filed more than 90 days before trial would be inconsistent with the rule. The member suggested that there should be language in the rule recognizing that a scheduling order may require filing sooner than the rule deadline. The member said most of the time it is the attorneys who prepare the proposed scheduling order based on their agreement.
By unanimous consent, the words "unless otherwise ordered" were added to the end of the motion language.
The main motion CARRIED.
A member asked whether page limitations similar to the federal limits should be adopted. Several members said that page limits would be worth considering. A member asked whether the committee should consider page limits on all motions or just on summary judgment motions. A member said summary judgment motions would be a good starting point.
A member said it would be good to look at what other states have done before trying to add page limits to the rule. A member said Florida has a good rule on page limits for briefs submitted to trial courts. A member said page limits for affidavits in family law cases would be something worth considering. A member said that overly long documents are often a problem in cases involving self-represented litigants.
Staff was instructed to conduct additional research on page limits and to prepare proposed amendments to Rule 56 implementing page limits for discussion at a future meeting.
RULE 24, N.D.R.Crim.P., TRIAL JURORS (PAGES 96-122 OF THE AGENDA MATERIAL)
Staff said the Chair has identified language in Rule 24(b)(1)(B) that appears inconsistent with current constitutional law. Staff presented proposed amendments to Rule 24 intended to correct the problem.
Judge McCullough MOVED to approve proposed amendments to Rule 24. Mr. Hoy seconded.
A member asked whether it would be a good idea to allow a juror to be released after being sworn. A member said it would be grounds for a mistrial. A member replied that the parties could stipulate to having fewer than the standard number of jurors.
The main motion CARRIED.
RULE 32, N.D.R.Crim.P., SENTENCING AND JUDGMENT; RULE 51, N.D. Sup. Ct.Admin. R., SENTENCING OFFENDERSMORTALITY TABLE (PAGES 123-139 OF THE AGENDA MATERIAL)
Staff explained that State Court Administrator Sally Holewa has proposed changes to the text of Rule 51 that would make it clear that courts need to refer to the most recent federal mortality tables when sentencing violent offenders. Staff presented proposed amendments consistent with Ms. Holewa's suggestions.
Judge Hagerty MOVED to approve proposed amendments to Rule 32 and to repeal Rule 51. Mr. Suhr seconded.
A member asked how many judges in the committee had calculated a life sentence with possibility of parole under Rule 51. The member said that prosecutors generally prepare sentencing recommendations for the court that will provide options such as life without parole and life with parole. The member said that calculating a life sentence with parole under Rule 51 using mortality tables is not simple or straightforward. The member said the table referred to in the rule and the proposed amendments does not identify a specific year but blocks of yearsif a defendant is 37 years old, the table will show the life expectancy of a 35 year old and a 40 year old but not specific life expectancy for someone in between. The member said that a calculation is needed to estimate the life expectancy for an age in between the specified ages.
The member said there are federal tables, such as Table 8, for specific ages that go year by year but those tables are not listed in the rule. The member said these tables are also more specific regarding life expectancy for people of different gender, race and ethnic groups. The member said the tables are constantly amended and the numbers change so reference should be made in the rule to the most recent table.
A member said calculating the life expectancy is the judge's responsibility. A member said the statute did not specify a specific table but instead said the life expectancy had to be calculated using an established table recognized by the Supreme Court. The member said the Court recognized Table A as the specified table in the current rule. A member said using Table A is fine but a mathematical calculation is usually required. The member said other tables can give more precise numbers.
A member said the Supreme Court has to decide what tool judges use in calculating life expectancy. A member said the Court could choose a different table, but as long as the rule specifies Table A judges are not free to use alternative tables. A member said the language in Rule 51 specifies that judge are to use Table A to calculate life expectancy by age, race and sex. A member said the main concern with Table A is that the judge will need to do math.
A member said it might be better to keep the language in Rule 51 because administrative rules are easier to amend. A member said moving the language to the criminal rule had been proposed because of a concern that it was hard to find in the administrative rule. The member suggested that perhaps a reference to Rule 51 could be inserted in the criminal rule.
Judge Hagerty MOVED to amend page 129, line 116, to delete the proposed language
and instead insert "N.D. Sup. Ct. Admin. R. 51" after "reference to." Mr. Hoy seconded.
Staff was instructed to advise the court administrator that Table A may not be the most useful source of life expectancy information. A member said there is a social security table that goes by one-year increments that could be more useful.
RULE 35, N.D.R.Crim.P., CORRECTING OR REDUCING A SENTENCE (PAGES140-145 OF THE AGENDA MATERIAL)
Staff said the Chair has requested that the committee discuss whether Rule 35 should be amended to clarify that a court jurisdiction to correct an illegal sentence at any time. Staff presented proposed amendments to Rule 35 consistent with the Chair's request.
Judge McCullough MOVED to approve proposed amendments to Rule 35. Mr. Hoy seconded.
A member said if the word "may" is deleted it will indicate that correcting the sentence is not discretionary. The Chair said correcting an illegal sentence is not discretionary, if a sentence is illegal it has to be corrected. The Chair said it is discretionary to correct a sentence imposed in an illegal manner, but not discretionary to correct a sentence that is itself illegal.
A member said if a case is appealed, the Supreme Court has jurisdiction. The member asked whether the district court would still have jurisdiction to correct an illegal sentence in a case that had been appealed. The consensus of the committee was that the district court still had jurisdiction to correct an illegal sentence.
A member said the proposed language does not make it completely clear that, if an illegal sentence is brought to the attention of the district court, it must be corrected. A member suggested that Rule 35 (a)(1) could be broken into two separate sentences and the language could be adjusted to clarify that illegal sentences must be corrected.
A member asked whether the question before the committee was one of substance or procedure. The Chair said whether or not a sentence was illegal was a substantive question, such as in a case when a defendant is sentenced to a term longer than can be legally imposed. The Chair said this was the kind of sentence that is required to be corrected. The Chair said if a step was missed in the sentencing procedure, the resulting sentence would have been imposed in an illegal manner but the sentence itself would not necessarily be illegal, so
correcting it would be discretionary.
Judge McCullough MOVED to delete "has jurisdiction to" on page 141, line 2, and insert the word "shall" instead. Judge Schmidt seconded.
A member said the language proposed is stronger language that would make it clear it is mandatory to correct an illegal sentence.
Mr. Hoy MOVED to delete "at any time" on page 141, line 3, and insert "once brought to its attention" instead. Judge Cruff seconded.
A member said the proposed language could be read to prevent the court from fixing a sentence on its own motion. A member added that there is no time limit to fix an illegal sentence. A member said the proposed change is unnecessary because the court will not do anything unless it knows about it.
Main motion CARRIED.
RULE 3, N.D.R.App.P., APPEAL AS OF RIGHT - HOW TAKEN (PAGES 146-151OF THE AGENDA MATERIAL)
Staff explained that Justice Crothers has requested that the committee discuss whether Rule 3 should be amended to require a preliminary statement of issues in all appeals. Staff presented proposed amendments to Rule 3 consistent with Justice Crothers' request.
Judge McCullough MOVED to approve proposed amendments to Rule 3. Judge Marquart seconded.
A member said a problem with adding a statement of issues requirement in criminal cases is that indigent criminal defendants who have been convicted may have been represented at trial by one attorney and then may be represented on appeal by another lawyer, especially if the defendant is unhappy with the defense given at trial. A member said a defendant only has 10 days to file a notice of appeal in a criminal case so this is likely to be filed by the trial defender, who will then withdraw to clear the way for an appellate defense attorney.
A member requiring an attorney who will not be handling the appeal to file a statement of issues is unlikely to work well. A member said it is not likely the attorney handling the appeal could submit a statement of issues before the deadline to file the notice expires because they would not have attended the trial and they would not have the transcript. A member said requiring a preliminary statement of appeals in criminal cases makes sense from a theoretical point of view but it may not be workable from a practical point of view.
A member asked what the benefits are of requiring a preliminary statement of issues in a criminal case. The Chair said requiring a list of preliminary issues would not limit what the party could argue in its brief. Staff said that knowing the potential issues at case intake could help the Supreme Court make decisions on how to handle a particular case. A member said that a criminal defendant may have a greater likelihood of success on appeal depending on the issues raised while other cases may be more likely candidates for summary disposition. The Chair said the Clerk of the Supreme Court currently needs to schedule oral argument for every case, but arguments may later get waived depending on the issues raised in the briefs.
A member said the Court has full time staff attorneys with a great deal of experience in dealing with appellate issues and it also has law clerks serving one year terms. The member said requiring a statement of issues could also help the Court in assigning cases to staff attorneys and law clerks.
A member said that it seems the burden on criminal appellants might outweigh the possible benefits to the Court of requiring a preliminary statement of issues.
RULE 12, N.D.R.Juv.P., DISCOVERY (PAGES 152-171 OF THE AGENDA MATERIAL)
Bismarck attorney Micheal Mulloy has requested that the committee discuss amendments to Rule 12 that would make it easier to obtain discovery in minor guardianship cases. Staff presented proposed amendments to Rule 12 based on Mr. Mulloy's request.
Mr. Hoy MOVED to approve proposed amendments to Rule 12. Judge Marquart seconded.
A member said the proposed additional language appeared to be redundant and that the type of discovery Mr. Mulloy's seeks to conduct would be allowed based on the discretion of the juvenile referee. A member said that referees are not used to allowing a great deal of discovery in juvenile cases and may not think it to be necessary in juvenile
A member asked to whom a discovery request seeking evidence of deprivation in a juvenile guardianship case might be directed. A member said that one scenario would be that grandparents caring for a child might be seeking a guardianship based on abandonment by the parents. The member said an attorney representing the absent parents would likely want to seek evidence regarding the grandparents' care of the child and what evidence they might seek to present against the parents.
A member said there would often be a social services file that would contain this information. A member replied these cases were different because social services was not involved and had not done any sort of investigation. A member said that there might be previous social services investigations that a party is attempting to gain access to. A member said it was unlikely that social services would be willing to give up the file in such a case. A member said if parents are the ones seeking information from social services they would have the right to have access to any previous investigation.
A member said in most of these cases a relative of the child is caring for them and social services is not involved. The member said it is likely that the parents would be objecting to the relative becoming a guardian. A member said a court has to make a finding of deprivation before it can name a guardian so information about deprivation should be discoverable.
A member said the way the rule is structured it seems to allow discovery of information from parties but not generally from outside parties.
A member said one situation that has been developing is that a deprivation action will be commenced in one county and then a guardianship proceeding will start in another county. The member said that the party in the guardianship proceeding often then seeks information from the deprivation proceeding. The member said that referees are hesitant to release juvenile court records from a deprivation proceeding because this can handicap their ability to resolve the matter and reunite children with parents. Consequently, referees have turned down discovery requests to disclose information from deprivation proceedings for use in other proceedings.
A member said the committee should obtain more information from Mr. Mulloy about what information he has not been able to obtain through discovery. The member said specific examples would be useful because it is unclear from the committee's discussion what information he might be looking to obtain.
A member said Rule 12 may not be the appropriate rule to amend because it only deals with discovery from parties. Staff said it seemed Mr. Mulloy might really want a new rule that would allow full discovery in juvenile guardianship matters similar to that allowed under N.D.R.Civ.P. 26. A member said even if full discovery was allowed, this could not compel the release of information from sealed or long closed juvenile court proceedings, which are confidential by statute. The member said that referees generally are unwilling to release information from juvenile files.
A member said in a deprivation proceeding, a party should be allowed to discover information into whether a child was deprived. The member said Mr. Mulloy must be seeking discovery beyond the normal testimony that would be used to establish deprivation in a juvenile proceeding. A member asked whether there was any mechanism for a party denied discovery to seek review. A member said that a party may request review of a referee decision by a district judge.
A member again said it is unclear what relief Mr. Mulloy is seeking. The member said it is unclear what specific information he has sought that has been denied to him. A member said the discussion has shown that the committee does not grasp what Mr. Mulloy needs and can only speculate.
A member said the rule is not completely clear about many issues related to discovery. A member said until this rule was enacted, there were no rules about discovery in juvenile cases. Staff said it was only recently that juvenile court took over juvenile guardianship matters. A member said that better rules may be required as juvenile guardianship jurisprudence develops.
A member said it is likely a separate provision in the rules needs to be developed to cover juvenile guardianships. A member said staff should seek proposed rule language from Mr. Mulloy because otherwise the committee will need to guess what he wants and why he wants it.
A member said there probably needs to be a provision to obtain discovery from third parties, which does not seem to be covered by the current rule. A member said one solution would be to say that the discovery rules under the Rules of Civil Procedure govern discovery in juvenile guardianship actions given that this category of action has only recently been removed from civil court.
Staff was instructed to conduct further research on the issue and gather more details from Mr. Mulloy.
FOR THE GOOD OF THE ORDER
The Chair asked the committee members their opinions on whether the committee should continue having two day meetings or instead have single day meetings in the future.
The Chair honored Kent Reierson and Mr. Hoy, who are term limited, for their service to the committee.
The meeting adjourned at approximately 2:00 p.m. on September 28, 2017.
Michael J. Hagburg