MINUTES OF MEETING
Joint Procedure Committee
September 29-30, 2016
TABLE OF CONTENTS
Rule 41, N.D.R.Crim.P., Search and Seizure 2
Rule 41, N.D. Sup. Ct. Admin. R., Access to Court Records 6
Rule 26, N.D.R.Civ.P., General Provisions Governing Discovery 10
Rule 4, N.D.R.Civ.P., Persons Subject to Jurisdiction; Process; Service 14
Rule 41, N.D.R.Crim.P., Search and Seizure 15
Rule 26, N.D.R.Civ.P., General Provisions Governing Discovery 16
Rule 4, N.D.R.Civ.P., Persons Subject to Jurisdiction; Process; Service 17
Rule 11, N.D.R.Civ.P., Signing of Pleadings, Motions and Other Papers; Representationsto Court; Sanctions 20
Rule 36, N.D.R.Civ.P., Requests for Admission 22
Rule 3, N.D.R.Crim.P., The Complaint 23
Rule 5, N.D.R.Crim.P., Initial Appearance Before the Magistrate 24
Rule 17, N.D.R.Crim.P., Subpoena 27
Rule 32.2, N.D.R.Crim.P., Pretrial Diversion 28
Rule 41, N.D. Sup. Ct. Admin. R., Access to Court Records 28
Rule 3.1, N.D.R.Ct., Pleadings 29
Rule 8.3.1, N.D.R.Ct., Case Management (Non-Divorce Cases) 29
CALL TO ORDER
The meeting was called to order at 1:00 p.m., on September 30, 2016, by the Chair, Justice Dale Sandstrom.
Justice Dale Sandstrom, Chair
Honorable Todd L. Cresap
Honorable Laurie Fontaine
Honorable William A. Herauf (Thursday only)
Honorable Steven McCullough
Honorable Thomas E. Merrick
Honorable David E. Reich
Mr. Bradley Beehler
Mr. Sean Foss
Mr. Robert Hoy
Prof. Margaret Jackson
Mr. Zachary Pelham
Mr. Lonnie Olson (Friday only)
Mr. Kent Reierson
Mr. Lloyd Suhr
Honorable Jon Jensen
Honorable Steven L. Marquart
Honorable Robin Schmidt
Ms. Carol Larson
Mr. Robert Schultz
The committee discussed the possibility of holding a meeting in Grand Forks in April 2017. Staff explained that the Annual Rules Package had been submitted to the Supreme Court and that a hearing on it would be held October 12.
APPROVAL OF MINUTES
Judge Herauf MOVED to approve the minutes. Judge McCullough seconded. The motion to approve the minutes CARRIED.
RULE 41, N.D.R.Crim.P., SEARCH AND SEIZURE (PAGES 208-229 OF THE AGENDA MATERIAL)
Staff explained that, in response to the U.S. Supreme Court's decision in Birchfield v. North Dakota, which made search warrants mandatory for blood tests in impaired driving cases, the Supreme Court formed an Electronic Search Warrant Workgroup to discuss ways to streamline the process of obtaining a search warrant in such cases. Staff said that one of the workgroup's suggestions was that Rule 41 be amended to allow licensed peace officers to make an unsworn declaration under penalty of perjury in support of a request for a search
warrant and that the proposed amendments to Rule 41 included this change.
In addition, staff said that attorney Tom Dickson has requested that the committee consider further amendments to Rule 41 that would supersede the part of N.D.C.C. § 29-29-01 that requires evidence seized under a search warrant to be brought before the magistrate.
Judge Herauf MOVED to approve the proposed amendments to Rule 41. Prof. Jackson seconded.
The Chair explained that if a declaration is made under penalty of perjury and it is false the declarant would be subject to prosecution. The Chair said the intent of the change was to simplify electronic transmission of documents supporting a search warrant to the judge. The Chair said allowing declarations under penalty of perjury would eliminate the step of having to have the document notarized and then scanned for electronic transmission to the judge.
A member spoke in opposition to the proposal to supersede part of N.D.C.C. § 29-29-01. The member said that a search warrant is a court order that allows law enforcement to conduct a search and that puts limits on what law enforcement can do with what they find. The member said that law enforcement is required to do an inventory of what is searched and to report back to the courthouse with it, meanwhile securing whatever items the warrant allowed law enforcement to seize. The member said that problems occur when law enforcement fails to properly secure items seized under a search warrant. The member said there must be limits on what law enforcement does with what it seizes under a search warrant.
Mr. Hoy MOVED to remove the proposed new language at lines 198-199 on page 219. Judge McCullough seconded.
A member said that the proposed new language would only delete that part of N.D.C.C. § 29-29-01 to the extent that it requires seized property to be physically brought before the magistrate. The member said that the language does not deal with inventories and deleting it would not allow law enforcement to do whatever they want with seized property. The member said property is not physically brought before magistrates so the language in the statute is not being followed anyway.
A member asked how often the Supreme Court partially superseded a statute. Staff said the Court did not do it often but it did happen, for example under N.D.R.Crim.P. 3. The
member said that removing the language from the statute would be acceptable but doing it
by partially superseding the statute was awkward.
A member asked what a statute that had been partially superseded would look like in the code publication. Staff said that the code revisor decides what steps to take, whether to make a note or to make an amendment to the statute. Staff said that N.D.C.C. § 29-05-02, which was partially superseded by Rule 3, was completely removed from the code.
A member said the last clause of the statute was intended not to require law enforcement to always physically bring the seized items to the magistrate but to emphasize that the property must ultimately be at the disposal of the district court who allowed the property to be seized. The member said control of the property is the issue and it should be the district court that controls the disposition of the property.
A member said that the motivation behind the suggestion that the statute be partially superseded is simply to eliminate language requiring seized property to be brought before the magistrate. A member said that the standard search warrants that courts approve require the seized property to be brought before the magistrate, even though this never happens.
The Chair said that the committee discussion seems to indicate a need to have language affirming that the court has control of what is seized under a search warrant. The Chair said if the whole statute is procedural, the whole statute could be superseded and the necessary language retained or expanded in the rule. Members agreed that language about court control should be added to the rule so it would be clear that the seized items are not to be brought physically before the magistrate but are subject to court jurisdiction and are not to be disposed of by law enforcement.
The Chair suggested that the committee vote on Mr. Hoy's motion and if it carried, staff could be instructed to prepare new language for the rule along the lines of the committee's discussion.
The motion CARRIED.
Staff explained that the proposed amendments that would allow a licensed peace officer to support a search warrant application with a written declaration were drafted to facilitate a completely electronic search warrant proceeding, rather than one held in person or by telephone.
The Chair said that one reason a rule amendment is needed is because the practice for obtaining search warrants varies between districts. The Chair said that in the South Central district, judges require an assistant state's attorney be involved in drafting the materials
supporting a search warrant and presenting the warrant to a judge. The Chair said that in the East Central district, the officer prepares the application and presents it. The Chair said the concept behind the rule amendment is that an officer could prepare the application while sitting in a patrol car at the traffic stop and get the warrant while driving to the location of the blood draw.
A member said that Judge Gary Lee objected to the proposed amendment at the administrative council meeting because he was concerned that if the officer did not go before a notary, prosecutors would not bring any charges against them for false material in a search warrant application. The member, however, did not know of any case in which charges had been brought against an officer accused of submitting false testimony in a sworn affidavit. The member said that receiving false search warrant information from officers was likely not a big problem.
The motion to approve the proposed amendments and to send the rule to the Supreme Court CARRIED.
Staff asked the committee if there were any suggestions on what the language should be added to the rule regarding the court taking control of property seized under a search warrant. A member suggested there be language indicating that property seized under a search warrant is subject to further order of the court.
A member suggested that new language be added after line 66 on page 213: "(C) Preserve the property taken until the court directs its proper disposition."
A member asked what happens to seized property now. A member said the seized property is generally drugs and law enforcement typically annually asks for a court order allowing it to be destroyed. A member said that the prosecutor often gives the authority to dispose of the evidence or makes a motion to the court for seized evidence to be destroyed.
A member said one problem with courts having authority over seized evidence is that a case is not created when a search warrant is issued and the evidence may actually end up being used in multiple cases. The member suggested that the new language might require an order to be entered every time that property is seized. The Chair suggested that disposition could be done through an omnibus order.
Mr. Foss MOVED to amend the motion previously adopted to add the term "licensed peace officer," before "affiant" at line 24 and line 25 on page 211. Mr. Beehler seconded.
A member said this addition would be consistent with the language on peace officers
making written declarations and make it clear that the magistrate may require the officer to appear in person.
RECOGNITION OF DEPARTING MEMBERS
The Chair recognized Judge Thomas Merrick, who is retiring, and Judge David Reich, who is term limited, for their service to the committee. Chief Justice Gerald VandeWalle thanked the Chair, Justice Dale Sandstrom, for his service to the committee.
RULE 41, N.D. Sup. Ct. Admin. R., ACCESS TO COURT RECORDS (PAGES 31-50 OF THE AGENDA MATERIAL)
Staff explained that Judge McCullough suggested at the last meeting that additional changes for Rule 41 may be appropriate. Staff presented proposed amendments that would recognize that courthouse computer terminals provide most access to court records for the public and that attorneys can apply to obtain enhanced remote electronic access to records.
The Chair suggested that the committee take a look at the language on pages 36-37 to decide whether reorganization of Section 4 is required based on the proposed new language on public access terminals at the beginning of the section. The Chair suggested that the words "to Other Records" be added after "Access" on page 36, line 81, and that the following paragraphs be relettered beginning with (A).
Judge Herauf MOVED to approve the proposed amendments to Rule 41, including the Chair's suggestion. Mr. Foss seconded.
A member said the committee needed to be cautious with any reorganization because the public access terminal does not allow access to all records within the Odyssey electronic filing system. A member asked whether people using the public access terminal could generally get access to records available on the terminal or whether people not able to use the public access terminal could have the clerk obtain paper copies for them.
A member said that many times with older cases, the records may exist only in paper and the clerk will enter the paper records into Odyssey in response to a records request. They could then be viewed on the public access terminal. The Chair said that many paper records still exist in storage, including in an offsite facility in Cass County. The Chair said the policy is that old paper records are scanned into Odyssey if it looks like the case is going back to court.
A member asked whether the public access terminals have printing capabilities or whether members of the public are restricted to just looking at the electronic record. The member said that the definition of "public access" on page 34, lines 24-25, included the ability both to inspect and to obtain a copy of the information. The Chair said the intent was that the public could print copies from the public access terminal at the standard cost for copying court records.
A member said the way the proposed amendments to the rule are currently written, a member of the public would not necessarily have a right to get a copy of a record available on the public access terminal. The member said language should be added to the rule to make sure the public has the right to get a copy of records available on the public access terminal. A member said that structuring the rule so that the language on pages 36-37, lines 81-103, applied also to the public access terminal would allow the public a right to copies and protect the clerks from unreasonable requests for copies.
A member said it was important for the committee to get information on whether copies of records from the public access terminal are available at clerk's offices across the state and how these copies are provided.
A member said the language on page 36 at lines 81-82 could be amended to allow the public to inspect and examine records not available on the public access terminal and to copy any record, whether on the terminal or not. A member suggested that language allowing copying should just be added to the proposed new language about the public access terminals on page 36 lines 78-80. The Chair said that having the rule's reasonableness requirement apply to copy requests from the public access terminal would probably be a good idea.
A member said the rule already had language on page 34, lines 24-25, defining the term "public access" as including the ability to obtain a copy of the requested document. The member said the proposed new language on terminals could be amended to add the term "public access" and it would not be necessary to add a reference to copies.
Judge Cresap MOVED to amend page 36, lines 78-80, to read "A terminal will be available at each county courthouse for public access of all publically available court records stored statewide in the Odyssey system." Judge Herauf seconded.
A member suggested that the language refer to all court records stored in the Odyssey system. A member replied that it was important to refer to "publically available" records because of the large number of confidential and sealed documents that were stored in the system.
Judge Cresap MOVED to amend page 36, line 81, to replace "to inspect, examine or copy" with "public access to." Prof. Jackson seconded. Motion CARRIED.
Mr. Foss MOVED to amend page 34, line 25, to add "except as excluded under Section 5" at the end of the sentence. Mr. Hoy seconded.
A member stated that the purpose of the proposed amendment was to connect the dots between documents that were open to public access and documents that were excluded from public access.
A member said that the part of the rule on page 36-37, lines 81-103, should apply to records on the public access terminal and records not available on the terminal. The member suggested that the proposed new language on page 36, line 82, be amended to read "including a record that is not available on the public access terminal." A member asked what problem adding this language would fix. A member replied that the way the rule was currently written, the protections on page 36-37, lines 81-103, would only apply to old records not available on the public access terminal. A member said that the problem was that the amendments to the rule still had not resolved the inconsistencies between the part of the rule that referred to viewing at a terminal and the part of the rule that referred to how to access other records.
A member said that the public in Burleigh County can print off documents from the public access terminal using the clerk's printer at a rate of 10 cents per page. A member wondered if a person could just print on the public access terminal without arranging with the clerks beforehand and making sure that the cost of the copies would be covered. A member said it is appropriate to leave it up to the clerks to figure out how to provide the copies that would be required under the proposed rule language. A member said the topic of printing from public access terminals is probably covered in the clerk's manual.
The Chair said a bigger issue is access to older files, which are usually in storage away from the clerk's office. The Chair said the clerks are allowed to scan old files into Odyssey when there is time available in order to save storage space. A member said Cass County is the only county with off-site storage, which means it can take days before an old file can be found and made available.
Mr. Foss MOVED to amend on page 36, line 79, to delete "of all publically available"
and replace with "to." Judge Herauf seconded.
A member said with the amendments to the definition of the term "public access" there is no reason to use the term "publically available."
The main motion to send the proposed amendments to Administrative Rule 41 to the Supreme Court CARRIED.
Mr. Herauf MOVED to transmit the proposed amendments to the Supreme Court immediately. Mr. Hoy seconded. Motion CARRIED.
A member asked about text on page 39, line 137, allowing bulk distribution of "birth date, street address, and social security number information." The member asked why this information would be released through bulk distribution. Staff explained that this was information that bulk purchasers such as background search companies wanted. Staff said the rule and the bulk access agreement required purchasers to safeguard the information and use it only for legitimate purposes. A member said it was dangerous to release this information to companies based primarily on the company's willingness to pay for it. The Chair observed that the rules were generally careful about requiring identifying information such as birth dates and social security numbers to be redacted and not available to the public.
The Chair said whether bulk access to this information should continue was a legitimate question to raise. A member said that the fact that companies want to buy this information was not a significant enough reason to justify selling it. A member pointed out that the rule allowed the release of this information only if a court allowed its release. The member said the information was protected because the bulk purchaser was required to agree to protect the information and because a judge was required to sign off on its release. A member said the language of the rule seemed to provide protection, but the question was whether a court actually scrutinized each bulk access request or whether the Supreme Court simply signed off on requests after the requester entered into an agreement. The member said it was important to establish strict limits to access to personal information such as social security numbers and birth dates.
A member said there seemed to be a conflict in the text of the rule because under Section 5(b)(11), personal information including full social security numbers and birth dates was required to be excluded from public access.
Staff was instructed to express the committee's concerns about releasing personal
information through bulk distribution in the transmission letter to the Supreme Court.
RULE 26, N.D.R.Civ.P., GENERAL PROVISIONS GOVERNING DISCOVERY(PAGES 51-84 OF THE AGENDA MATERIAL)
Staff said that several members had suggested at the May meeting that the committee consider making initial disclosure requirements part of Rule 26. Staff presented proposed amendments that would add initial disclosure requirements, based upon those contained in the federal rule, to Rule 26.
Judge Herauf MOVED to approve the proposed amendments to Rule 26. Judge Reich seconded.
The Chair said the proposal represented a major change and that the committee should plan on considering it at this meeting and bringing it back the next meeting for additional discussion. The Chair asked whether any members of the committee had experience with the federal disclosure requirements.
A member said that much of the disclosure activity under the federal rule is triggered by the mandatory scheduling conference that takes place. The member said the scheduling order sets the time for disclosure and order disclosure deadlines are generally well beyond the guidelines established in the rule. The member said if there is no scheduling conference the minimum time to complete disclosures should be 45 days after the answer. The member said if the committee is considering approving pretrial disclosures it should also consider whether to make a mandatory scheduling conference part of the rule.
A member said the scheduling conference is a very important part of the federal disclosure system, in part because it requires the parties to get on the phone and discuss issues and come up with a plan. The member said that North Dakota, along with South Dakota and Minnesota, are unique because an action can be commenced without the matter being filed. The member said this might create problems if one party does not cooperate in providing initial disclosures--then the action would need to be filed and relief requested. The member said having a required scheduling conference would help make a pretrial disclosure system work.
A member said Rule 16 requires a pretrial conference. A member replied that not all districts in the state require a Rule 16 conference.
A member said requiring pretrial disclosures in North Dakota was a very bad idea. The member said our state courts are not the federal courts, they handle a lot of cases that
would never be seen in federal court. The member said that there are many self represented parties and they would not be able to comply with disclosure rules. The member said there are many civil case types that would not work with disclosure rules: restraining orders, evictions, family law cases. The member said many exceptions would need to be written into the rule before pretrial disclosures would work in the state courts. The member said our existing system works well and should be retained.
A member said lawyers used to think you should go to the federal court only as a last resort because there is more flexibility in the state system. The member asked whether the opinion now was that the federal system and mandatory disclosures work better. A member replied that the federal system is not necessarily better but it is different. The member said that under the mandatory disclosures, for example, a party does not have to turn over documents but simply admit their existence and identify where they are located. The member said that disclosure of the process leading up to an expert's report, such as disclosure of drafts of the report, is more limited under the federal system. The member said requiring mandatory disclosures under North Dakota's commencement by service system might be difficult to execute.
A member said that federal court does not handle collection work. The member said if collection attorneys had to do mandatory disclosures in every case it would bog down the system. The member said there would have to be an extensive list of exceptions to the disclosure requirements if they were to be adopted in state court.
A member said that Minnesota has both commencement by service and a mandatory disclosure requirement and that their courts had managed to cope. A member said the most obvious effect of the disclosure requirements in federal court is that attorneys get going on their cases much more quickly in order to meet deadlines. The member said cases tend to sit around longer with no activity in state court.
A member said judges in state court have a far greater number of cases on their docket than federal court judges. The member said that having additional hearings and scheduling conferences in many cases because of having pretrial disclosure requirements would increase work for judges. A member said in federal court, the magistrate handles scheduling conferences and discovery issues, not the judge.
A member said there was nothing wrong with the discovery process the state currently has and there is no need to change to a system more like the federal courts. A member said there did not seem to be an abundance of discovery disputes, motions to compel or requests for discovery conferences in state court. The member said that if there were problems with the state's discovery system, courts would be seeing more discovery disputes. A member
said having mandatory disclosures would lead to having to get more involved with the discovery process.
The Chair suggested that if there was no interest in adopting the proposals, a motion to indefinitely postpone would be appropriate.
Judge Cresap MOVED to delete the proposed new material on pages 53-55, lines 2-51, relating to initial disclosures. Judge McCullough seconded. Motion CARRIED.
By unanimous consent, the remaining proposed new material was renumbered accordingly.
By unanimous consent, a reference on page 55, line 53, to the now deleted material was deleted.
A member said that the proposal to require disclosures related to expert testimony should be adopted because the federal approach works better than what is now done under the state rule. The member said the proposed requirement that the expert provide a report only would apply to a "professional" expert.
A member asked whether treating physicians are considered professional experts under the federal rule. A member said they are typically just disclosed but not required to provide a report.
A member asked whether it is proposed, if the expert disclosure requirements are adopted, to also adopt the federal provisions that protect communications between attorneys and experts including draft reports. The member said communications between attorneys and experts are not protected under the existing rule. Staff said the committee had rejected including the federal protections in Rule 26 in discussions at the May 2016 meeting.
A member said that the committee could approve the expert disclosure requirements and keep the existing system allowing broader questioning about communications between attorneys and experts.
A member asked what problem the proposed amendments were intended to solve. A member responded that if professional experts were required to provide a report, it would often eliminate the need for a deposition. The member said it would streamline the process and possibly save money. A member said that having an expert report creates fuel for disputes at trial, where the opposing party may argue the expert if offering opinions not expressed in the report.
A member said that even when there is a report, attorneys still often depose experts. A member responded that this is sometimes done to see if there is material beyond the written word that the expert is going to testify about. A member said that without a report, a party is essentially required to depose the expert because disclosures about the opinion that will be offered are usually vague. The member said with a report, a discovery deposition is less likely because it provides concrete material about the expert's opinions.
A member asked whether the items that would be required to be disclosed in a report, which are set out in the proposal on page 56 lines 62-72, could be inserted into the current rule as information that could be sought through interrogatories. The member said this would expand the scope of things that a party could be required to disclose about an expert's opinions. A member responded that parties sign interrogatories so an expert could deny that the interrogatory answer was a true expression of the experts opinion. A member said that the items on lines 62-72 are items a professional expert would be required to include in a report, not items a subject matter expert like a car mechanic would have to report. The member placing them in our current rule might expand the discovery burden on non-professional witnesses. The member said it is fair to require a party who is employing an expert for a case to have the expert affirmatively disclose his or her opinions in a report, which is what the proposal would require.
A member said that requiring expert disclosures was a good idea because it gave the other side fair warning of what was coming. The member said, however, if an expert report was going to be required, more substantial protections for communications between lawyer and expert should be made part of the rule.
The committee discussed whether additional changes needed to be made to the draft to harmonize the rule language with the proposed amendments related to expert disclosures.
By unanimous consent, the proposed amendments on page 61, lines 169-175 were removed and the language restored to its existing form.
A member suggested that the proposed expert disclosure language be moved into the existing "Trial Preparation Experts" paragraph of the rule.
Mr. Beehler MOVED to transfer the proposed new material at pages 55-57, lines 52-89, to page 62 after line 200, retitle paragraph (4) "Disclosure of Expert Testimony," and renumber accordingly. Mr. Pelham seconded.
A member said that if the language on expert disclosures is included in the rule, it should be in the place that the motion would move it to.
A member said with the language moved, the rule would now start out with new proposed language on pretrial disclosures.
Mr. Beehler MOVED to delete the proposed new language on pages 57-58, lines 90-114. Judge Herauf seconded. Motion CARRIED.
Staff was instructed to prepare a revised draft incorporating the day's amendments for consideration by the committee at tomorrow's session.
Staff was also instructed to include the federal language protecting communications between attorneys and experts and also expert reports in the revised draft.
Further consideration of Rule 26 was postponed until tomorrow's session.
RULE 4, N.D.R.Civ.P., PERSONS SUBJECT TO JURISDICTION; PROCESS; SERVICE (PAGES 85-122 OF THE AGENDA MATERIAL)
Staff explained that Rod Olson, the court administrator for Unit 2, requested that the committee consider adoption of a service by web posting system similar to that used in Alaska to replace the current system of service by publication.
The committee took a look at the Alaska service by web posting website.
A member said details would have to be worked out but the idea of having a system of service by web posting was a nice concept. A member said that such a system would be more likely to provide notice to an absent party who might be searching for mention of their name on the web. A member said that people who are served by publication rarely if ever show up in court. A member said service by publication is generally not effective unless there are interested third parties watching the publication, such as "land men" monitoring abandoned mineral rights notices.
A member said the Alaska rule also provides alternative methods such as sending a notice to the last known email or posting to a Facebook page. The member said that notice by some sort of electronic means is likely to have a better chance to get to the absent party. A member said the existence of these other ways to find people also changes the meaning of what constitutes a diligent inquiry justifying service by web posting or publication.
A member said another advantage of web posting over publication is that it is
statewide. The member said someone who moves out of Fargo and does not get the paper is never going to get the service by publication. A member said in smaller towns it was more likely someone knowing the person sought would see a notice in a newspaper than on the court website. A member said younger people are more likely to look at online sites for information. Several members commented that many people monitor the court's existing website to see whether there are pending items involving them, such as warrants being issued.
A member said Mr. Olson, who had suggested the amendment, specifically mentioned juvenile matters. The member said a web posting site would be very useful to give notice to absent parents of juveniles who the court needs to find. A member said that people today probably have easier and cheaper access to the internet than they do to newspapers.
The Chair said one important issue would be whether service by web posting replaced service by newspaper publication or supplemented it. Staff said the way the Alaska rule was written was having web posting as the primary means of special service and newspaper publication a supplemental means.
A member said that perhaps the technology committee should be contacted before there is action on the rule to inquire about the feasibility and expense of creating a web posting system. The Chair said it did not seem it would be a complicated thing to create.
A member said that the part of the proposal that might have the greatest effect in connecting with absent parties is the requirement that a diligent inquiry include searching the internet. The member said this would be a helpful change.
Consideration of the proposal was postponed until tomorrow's session.
September 29, 2016 - Friday
The meeting was called to order at approximately 9:00 a.m., by Justice Dale Sandstrom, Chair.
RULE 41, N.D.R.Crim.P., SEARCH AND SEIZURE (PAGES 208-229 OF THE AGENDA MATERIAL)
Staff presented the committee an alternate draft of Rule 41 incorporating the changes the committee requested at yesterday's meeting.
Mr. Beehler MOVED to adopt the alternate draft presented by staff. Mr. Hoy
seconded. Motion CARRIED.
The main motion to approve the proposed amendments to Rule 41 CARRIED.
RULE 26, N.D.R.Civ.P., GENERAL PROVISIONS GOVERNING DISCOVERY(PAGES 51-84 OF THE AGENDA MATERIAL)
Staff presented the committee an alternate draft of Rule 26 incorporating the changes the committee requested at yesterday's meeting.
Mr. Beehler MOVED to adopt the alternate draft presented by staff. Mr. Foss seconded. Motion CARRIED.
A member said that if we are going to have mandatory expert disclosures based on the federal rules, it's appropriate to include protections for communications with experts and draft expert reports as is done in the alternate draft. The member said a party hires an expert to do an independent analysis but the party pays the expert and communicates about the case with the expert and may ask the expert to consider certain things. The member said protecting these kinds of communications works fine on the federal level.
A member said that protecting communications with experts and draft expert reports may not be a good idea. The member said it was concerning that the only thing a party would be able to discover about an expert's opinion before trial was the expert's report. The member said if a report is a result of multiple drafts and contains changes made so it will satisfy the hiring party's needs, this should be discoverable. The member said experts are difficult enough to deal with without making them even more bulletproof.
A member said that communications between attorneys and experts are discoverable now in North Dakota so this communication is generally done verbally with no written record. The member said adopting the proposed protections would not make a significant change in expert witness discovery in North Dakota because attorneys work hard to make sure they don't create material that is discoverable by the opposing party. The member said it would be good to be consistent with the federal rule.
A member said if draft reports were protected from discovery, the attorney could end up writing the drafts until the point the expert was comfortable signing off on it. A member said that having a different system in North Dakota creates a trap for unwary lawyers coming from other states who are used to the federal system of expert practice.
A member pointed out a flaw in the numbering beginning on page 59, line 140. By
unanimous consent, the numbering was corrected.
The motion to preliminarily approve the proposed amendments to Rule 26 pending further consideration at the next meeting after seeking comment CARRIED.
RULE 4, N.D.R.Civ.P., PERSONS SUBJECT TO JURISDICTION; PROCESS; SERVICE(PAGES 85-122 OF THE AGENDA MATERIAL)
Staff presented the committee with proposed amendments to Rule 4 based on Court Administrator Rod Olson's suggestions that the state adopt a system of service by posting on the web.
Prof. Jackson MOVED to approve the proposed amendments to Rule 4. Judge Reich seconded.
A member asked whether there was a reason for singling out adoption cases under the proposal, allowing service by web posting only when ordered by the court. The member said it might be appropriate to restrict web posting service in termination of parental rights cases but not in ordinary adoption cases with prior terminations.
Judge McCullough MOVED to delete "adoption" and add "involving termination of parental rights" after "cases" on page 97, line 213. Mr. Olson seconded.
A member asked why the court order requirement should be retained for termination of parental rights cases. A member replied that it is important to get a parent notice before taking their children away. A member said in most adoption cases the termination is already completed before the adoption is finalized. A member said later in the proposal, there were other methods listed for service that the court has discretion to require to provide notice.
A member said the term "compelling reason" in the sentence was not a current requirement for allowing service by publication in termination cases. A member said "good cause" might be a better term.
Judge Cresap MOVED to delete the sentence at lines 213-15 on page 97. Mr. Foss seconded.
A member said that there is a lot of material in the proposal that is different from current North Dakota practice and the committee could spend the whole day going through
and removing items. The member said it might be more useful for the committee to consider the broader concept of service by web posting and decide whether it wants to move forward with it.
The Chair suggested that the committee make a general examination of the proposal and identify problems that may need to be changed so that staff can prepare a new draft for presentation at the next meeting.
A member said the language on page 97, line 218, could be deleted.
The member said the words "or the matter inquired of" on page 97, lines 220-221 could be deleted as unnecessary. A member said retaining the language would be a problem because it would create confusion about the meaning of diligent inquiry.
A member said the language on page 97, lines 226-227, requiring return postage when inquiry is made by letter is unnecessary. The member said the language on page 97, line 228, requiring the "inquirer" to make the affidavit of inquiry could lead to having multiple affidavits of inquiry if multiple people assisted in the inquiry.
A member said that the existing rule already has an established standard for diligent inquiry and case law exists to define what it is. A member said diligent inquiry will often be a fact question, especially when a party is trying to vacate a judgment based on improper service.
A member said it might be better to retain the existing methods of service by publication and allow service by web posting as a supplemental or alternative means of service. The member said there are likely statutes that specifically require service by publication and spell out the number of times required. The member said that parties like the Juvenile Court could be allowed to submit a motion to the court seeking permission to use service by web posting instead of service by publication. The Chair said an alternative would be to still require service by publication when appropriate and to also require posting on the court's website when service by publication was used. A member said the rule could establish a definition of service by publication to mean either publishing in a newspaper or publishing on the website.
The Chair said there is no cost to use the Alaska service by publication website, so there would be no additional cost to a person who served by newspaper publication and also posted the item on the website. The Chair said that if posting on the website was required
in addition to publication in a newspaper, this could improve the chances that the absent party could actually get notice.
A member said continuing to require newspaper publication would burden entities like the Juvenile Court which face increasing cost burdens. A member said that service by web posting should be available as an alternative means of service by publication and a party be allowed to file an affidavit showing necessity to service by alternative means.
Judge Fontaine MOVED to postpone consideration of the rule until the next meeting with instructions for staff to prepare a new draft addressing the concerns raised about the proposal and to restructure it to retain service by newspaper publication and have service by web posting as an alternative. Judge McCullough seconded.
A member said restructuring could be done by retaining our present service by newspaper publication system as a first section and the second section being publication on a website. The member said it was important to characterize the service by web posting as a form of service by publication rather than another means of service. The member said if this was done, rules and statutes requiring service by publication could be satisfied by web publication.
A member said it would be good to find out whether there were statutes requiring publishing in a county newspaper rather than generic service by publication. A member said the name change statute does this and so does the mortgage foreclosure statute. A member said a specific statute requiring publication in a county newspaper would trump a rule allowing service by publication on a web site.
A member requested staff to contact Alaska and ask about how well the service by
web posting is working and whether there have been any problems. A member said it would also be helpful to get input from IT on how difficult it would be to set up a service website.
A member questioned how useful including the other forms of service listed in the Alaska rule, such as service by email or posting to a social network. A member said this was an interesting concept because you may find the absent person on Facebook and you can then send them a private message with the summons. The member said this is a very interesting way of doing service and it would be interesting to know Alaska's experience with it. A member said all of the additional service methods listed in the Alaska rule are in addition to posting on the website and discretionary with the court. The member said these might be effective ways to locate absent parties and maximize notice.
A member said that the committee should be skeptical about allowing service by the
other means listed in the Alaska rule but that they all could be considered as examples of ways to make a diligent inquiry. A member said in family cases involving children where social workers are desperately trying to find relatives they are using all these means to search for and find people.
A member said one concern with allowing the alternate means of the service is the risk of people sending out fake summonses using these means.
Motion to postpone CARRIED.
RULE 11, N.D.R.Civ.P., SIGNING OF PLEADINGS, MOTIONS AND OTHER PAPERS; REPRESENTATIONS TO COURT; SANCTIONS (PAGES 123-156 OF THE AGENDA MATERIAL)
Staff explained that attorney Clifton Rodenburg requested that the committee consider a rule amendment that would limit requirements to notarize documents submitted in civil cases. Staff presented proposed amendments to Rule 11 based on Mr. Rodenburg's suggestion.
Mr. Pelham MOVED to approve the proposed amendments to Rule 11. Prof. Jackson seconded.
A member asked what would happen if the proposed amendments passed and it was discovered that a non-sworn statement submitted in compliance with the rule turned out to be completely false. The member asked how this could be prosecuted if there was no evidence of where the statement took place as there would be in a notarized statement. The member said without including the location as part of the statement, prosecution of a false statement would be impossible.
A member said that the Minnesota statute specifically required the date and location of signing to be included. A member said just having the location on the document would not solve the problem if the location was a faraway place. The member suggested that having a rule provision providing that when a non-sworn statement is submitted in a North Dakota action, any perjury would be punishable in North Dakota. A member questioned whether this would be a procedural change or a substantive one.
A member said adding in a requirement that information on the date, county and state where the document was signed be included would solve most problems relating to perjury prosecution.
Mr. Foss MOVED to add text on page 126 after line 21: "In addition to the signature, the date of signing and the county and state where the document was signed shall be noted on the document." Mr. Hoy seconded.
A member asked how the proposed language would alter the proposal. A member said that it would require that the declarant provide the same information with the document that is now provided by the notary stamp.
A member said that the language in the proposal came from a Minnesota statute and a federal statute. The member said the language was the product of a legislative act. The member asked whether it was appropriate for the committee to make such a change as a rulemaking body. Staff said Mr. Rodenburg suggested in his letter that this would be a procedural change that the Supreme Court would be authorized to make under its rulemaking authority. The Chair said it was a legitimate question whether the proposal was calling for a procedural or substantive change. A member said that it might be a better course for Mr. Rodenburg to take this proposal to the legislature.
A member said that having a document notarized is not all that expensive and that law firms who regularly prepare affidavits often have several notaries on staff. A member said the time spent having a document notarized is probably the bigger concern especially if someone is trying to work in an all electronic environment without having to print a document out, notarize it and scan it back in.
A member said the proposed change seems to be procedural, not substantive. The member said the proposal would not create a new cause of action but indicating the procedure to verify the document to be filed.
A member said the committee has talked before about whether affidavits should be required or whether declarations are adequate. The member said in jurisdictions where declarations are accepted practice is very similar to affidavit practice. The member said a document with a declaration is still a very formal document that must be carefully crafted by an attorney. The member said a declarant is subject to being cross examined and can face challenges to credibility just as an affiant. The member said the only thing missing from a declaration is someone stamping the document after checking an ID. The member said North Dakota should start moving in the direction of eliminating notarization.
A member said declarations are more useful than affidavits when the person making the statement is in a location distant from the lawyer because the lawyer can go over the
document with the person on the phone and have them sign and return it without making them take the additional step of finding a notary.
The main motion to approve the proposed amendments and send to the Supreme Court as part of the Annual Rules Package CARRIED 11-3.
RULE 36, N.D.R.Civ.P., REQUESTS FOR ADMISSION (PAGES 157-161 OF THE AGENDA MATERIAL)
Staff explained that Mr. Beehler requested that the committee consider an amendment to Rule 36 requiring the person responding to a request for admission to sign the response. Staff presented proposed amendments to Rule 36 based on Mr. Beehler's suggestion.
Mr. Beehler MOVED to approve the proposed amendments to Rule 36. Mr. Hoy seconded.
A member asked whether "person" or "party" is the appropriate word to use in the proposal. Staff said "person" had been used in the similar amendment to Rule 34.
Mr. Reierson MOVED to substitute "party" for "person" on page 160, lines 48 and 57. Prof. Jackson seconded.
The Chair asked whether the lawyer would be able to sign the admission for the party under the proposed change. The Chair asked what the present practice was. A member said the client generally signs the admission so that it will be clear that it is the client's admission, not the lawyer's.
The Chair asked who would sign when it was a corporate person making the admission rather than an individual. A member said under the interrogatory rule, a representative designated by the entity could sign. A member said if a "party" is allowed to sign, the party's lawyer can sign as an authorized representative.
A member said under the current rule, if the party is represented, a lawyer can sign and if it is a corporate person, a designated person can sign. The Chair said the legislature in drafting statutes has been paying close attention to using "individual" when talking about a natural person rather than "person" which can mean a wider variety of things.
A member said the committee should be consistent in their use of terminology: "person" is used for signing of interrogatory responses and responses to requests for production. The member said using the standard language would allow courts and parties
to avail themselves of the existing case law and interpretation.
By unanimous consent, the motion was withdrawn.
The main motion to approve the proposed amendments and send to the Supreme Court as part of the Annual Rules Package CARRIED.
RULE 3, N.D.R.Crim.P., THE COMPLAINT (PAGES 162-168 OF THE AGENDA MATERIAL)
Staff explained that attorney Tom Dickson requested that the committee consider amendments to Rule 3 that would stop the filing of criminal complaints by private citizens. Mr. Dickson said private citizens should not be able to file criminal charges on their own. Staff presented proposed amendments to Rule 3 based on Mr. Dickson's suggestion.
Mr. Suhr MOVED to approve the proposed amendments to Rule 3. Mr. Pelham seconded.
A member said the proposed amendment seemed to deal with a substantive issue. The member said passing the proposed amendment would deprive a person of the right to make a complaint. A member said a procedure could perhaps be crafted that would accomplish Mr. Dickson's goal, but an outright bar goes too far.
A member said the remedy was to have a person route their complaint through the prosecutor rather than barring a person from presenting a complaint. The member said this is what happened in Hennebry v. Hoy, 343 N.W.2d 87 (N.D. 1983). The member said in that case, a person went to a magistrate to file a complaint and the magistrate allowed it. The complaint then went to the prosecutor who decided there was no case, which caused the person to seek a writ of mandamus requiring prosecution. The member said that the Supreme Court eventually decided that it was within the prosecutor's discretion to decide whether to prosecute or not.
A member asked what would happen if the prosecutor disagrees with prosecuting a complaint brought by a person. The Chair said there is a provision that would allow them to go to the attorney general. A member said that prosecutors who receive complaints from citizens often tell them to first go to law enforcement so that there will be a good investigation made. The member said that a person making a complaint can also go to the district court and ask that a special prosecutor be appointed.
A member said one way to address the issue would be to get rid of the complaint
entirely. The member said in eastern North Dakota, almost all prosecutions were initiated by the information.
The main motion to approve the proposed amendments and send to the Supreme Court as part of the Annual Rules Package was DEFEATED.
A member requested that staff communicate to Mr. Dickson that some members thought this was a substantive issue rather than a procedural one.
RULE 5, N.D.R.Crim.P., INITIAL APPEARANCE BEFORE THE MAGISTRATE (PAGES 169-181 OF THE AGENDA MATERIAL)
Staff explained that Attorney Jackson Lofgren, writing on behalf of the North Dakota Association of Criminal Defense Lawyers, requested the committee to consider an amendment to Rule 5 that would require defendants to be advised at the initial appearance that a conviction for a misdemeanor crime of domestic violence could result in a lifetime firearms ban. Staff presented proposed amendments to Rule 5 based on Mr. Lofgren's suggestion.
Mr. Beehler MOVED to approve the proposed amendments to Rule 5. Mr. Suhr seconded.
A member said the proposed change was not wise. The member said for any guilty plea in any case there were always going to be ancillary and corollary ramifications: those with drug convictions cannot get housing assistance, those convicted of perjury can have future testimony impeached as not credible, etc. The member said adding in advice on collateral consequences eventually could lead to a huge laundry list of consequences for the court to explain.
A member said one difference is that a firearms ban that goes along with a conviction denies a constitutional right. The member said if the law was going to take away that right, there should be a warning. The member also said that many courts already give warnings about firearms consequences in misdemeanor cases involving domestic violence.
A member said the real question before the committee was not whether it was a good idea to give some firearms consequences warning but whether there should be a rule requiring such a warning. The member said adding it to the rule would create a trap for the unwary judge. The member also said that felony cases involving domestic violence have the same firearms ban consequence and it doesn't make sense to warn in one and not the other.
A member said that language was recently added to the rules requiring warnings about deportation consequences, but this was done because of a U.S. Supreme Court decision. The member said it would not be a good idea to add more warnings about collateral consequences to the rules. The member said the rule should only contain what the court is required to advise the defendant.
A member said informing about firearms consequence is not required, but the issue is a common one. The member said if someone is charged with a felony they know it is serious and that bad things could happen as a result. The member said defendants do not think misdemeanors are as serious and do not expect a consequence as serious as not being able to own or possess a firearm to accompany a misdemeanor conviction. The member said that in a state like North Dakota that is heavily populated with hunters who own firearms, it comes as quite a shock to lose the ability to hunt as the result of misdemeanor conviction. The member said having a rule requiring a warning about firearms consequences in misdemeanor cases seems like a minimal change that would head off many problems. The member said that the fact that many jurisdictions already give this warning indicates that the court system can handle having the requirement.
A member said courts give defendants facing misdemeanor convictions a chance to talk to an attorney before they enter a plea and attorneys provide information about collateral consequences. A member said misdemeanor defendants somehow end up being surprised about losing their firearms rights even in parts of the state where they are always advised about firearms consequences. The member said that adding the requirement to the rule only creates a trap for a judge who might forget to tell a defendant about this consequence.
A member said most judges in the state are already advising about firearms consequences. The member said a lot of the time, defendants are advised individually about the possibility they could lose their firearms rights if they plead guilty. The member said firearms consequences are regularly discussed at judges meetings and judges generally are aware of the issue.
A member said a misdemeanor domestic conviction does not disqualify someone from gun ownership under state law--this is a federal law requirement. The member said the feds do not generally prosecute violators of the federal gun ownership ban when there is a contrary state requirement. The member said, however, that police officers and members of the National Guard have been denied continued employment based on a misdemeanor domestic conviction.
A member said while the feds do not generally prosecute for violations, it is a problem when someone with a misdemeanor domestic conviction tries to buy a weapon or applies for
a hunting license. The member said when this happens, that is when lawyers get calls. The member said that putting an advice requirement in the rule might not improve the situation if defendants are currently ignoring warnings that are being given about the firearms ban. The member said having the warning requirement in the rule could be useful because it could help ensure the warnings are given in all cases.
A member said the question is where to draw the line on advice given by the court. The member said there are other misdemeanor offenses that have serious collateral consequences, such as the requirement to register as a sex offender when convicted of certain crimes. The member said courts are not required to give warnings about this. A member said that defendants who plead guilty to drug offenses or drive under the influence may not be able to enter other countries like Canada.
A member said the main reason why the firearms ban may be different is because it involves a constitutional issue and because there is an express federal statute to enforce it. A member replied that many of the other collateral consequences involve important rights. The member said that even if firearms warning were required by rule, defendants would continue to ignore it because they want to get out of jail and are willing to plead guilty and pay a fine to do it.
The Chair asked whether the rule proposal should also cover felony domestic violence cases. A member said that in jurisdictions where defendants are being advised of firearms consequences, this advice is given to everyone.
A member asked what procedure is now followed when someone tries to withdraw a plea based on an assertion that a firearms consequences warning was not given. A member said the court applies a "manifest injustice" standard if the sentence has been entered and "fair and just" standard if not. The member said usually the manifest injustice standard applies and that this standard is difficult to prove. The member said, however, that if a requirement to advise is put in the rule and is not followed, defendants will be able to withdraw their pleas without facing a difficult standard. The member said this is the biggest change that adopting the proposal would bring about.
A member said if this advice is already being given anyway, having it in the rule could help prevent difficulties with withdrawal of guilty pleas in the rare cases where the advice was not provided. A member replied that the big problem is not with adding a firearms consequences warning to this rule but of where the line is drawn with adding collateral consequences warnings to the rules in general. The member said there are many collateral consequences out there and if the courts do not have to warn about them, the rules should not require warnings.
The main motion to approve the proposed amendments and send to the Supreme Court as part of the Annual Rules Package was DEFEATED 2-11.
RULE 17, N.D.R.Crim.P., SUBPOENA (PAGES 182-199 OF THE AGENDA MATERIAL)
Staff explained that Mr. Hoy located language in Rule 17 that seems to require a court order before a subpoena can be issued to compel attendance at a deposition in a criminal case. He requests that the committee consider amendments allowing an attorney to issue deposition subpoenas. Staff presented proposed amendments to Rule 17 based on Mr. Hoy's suggestion.
Mr. Hoy MOVED to approve the proposed amendments to Rule 17. Judge McCullough seconded.
A member said the language in the rule seems to come from a time before lawyers were allowed to take depositions in criminal cases without specific permission from the court.
By unanimous consent the sentence, "An attorney for a party to the proceeding may issue a subpoena for any witness to appear or produce documentary evidence at a deposition" was added on page 184, line 36, and the other proposed amendments on lines 36-37 were removed.
The Chair asked whether the subject of the subpoena could move to quash it. A member said the procedure was similar to what would be used in a civil case and pointed to language on pages 183-184, lines 19-21, of the draft.
The Chair asked whether a self-represented party would be able to issue a subpoena under the proposed amendment. A member said this would not be allowed by the proposed language and that courts generally do not allow self-represented parties to issue subpoenas in criminal cases. A member said the prosecutor would get notice of the deposition.
A member asked whether the original language on page 184, lines 36-38, referring to deposition orders should be retained. A member said that this procedure is not generally used because an order is no longer needed before a deposition may be taken. A member said if a self-represented party did want to apply to issue a subpoena, they would need to follow the original procedure. The member said the language could apply when a party wants to take a deposition to perpetuate testimony, which requires leave of court.
The Chair said that if the proposed "Marsy's Law" constitutional amendment passes, crime victims would not be subject to depositions. A member said that victims already have protection by statute from onerous depositions. The member said discovery depositions are fairly rare in criminal cases and that if defense counsel wants to take discovery testimony, they generally issue subpoenas for witnesses to appear at the preliminary hearing. The member said that prosecutors prefer that attorneys take this approach because the court and the prosecutor are present to protect witnesses from onerous examinations.
The main motion to approve the proposed amendments and send to the Supreme Court as part of the Annual Rules Package CARRIED 12-1.
RULE 32.2, N.D.R.Crim.P., PRETRIAL DIVERSION (PAGES 200-207 OF THE AGENDA MATERIAL); RULE 41, N.D. Sup. Ct. Admin. R., ACCESS TO COURT RECORDS (PAGES 31-50 OF THE AGENDA MATERIAL)
Staff explained that attorney Jackson Lofgren, writing on behalf of the North Dakota Association of Criminal Defense Lawyers, requested the committee to consider an amendment to Rule 32.2 allowing for sealing of the file after successful completion of a diversion agreement. Staff presented proposed amendments to Rule 32.2 based on Mr. Lofgren's suggestion.
Mr. Suhr MOVED to approve the proposed amendments to Rule 32.2. Judge McCullough seconded.
A member said that in a deferred imposition of sentence, the file is sealed automatically after completion of conditions and dismissal. Staff said deferred impositions were automatically sealed by statute and if there was a desire to have pretrial diversion files automatically sealed, this would have to be done under Administrative Rule 41.
A member said that the file should be sealed automatically because in a diversion, the defendant does not plead guilty to a crime. A member said some prosecutors do not use diversion in any but the weakest cases because there is not strong enforcement for the conditions imposed. The member said there would be no problem with automatic sealing because diversions usually involve minor offenses.
Mr. Suhr MOVED a substitute motion to amend Administrative Rule 41 to add "or pretrial diversions" on page 42, line 198, rather than amending Rule 32.2. Judge McCullough seconded.
By unanimous consent, language was added to the explanatory note on page 48 after
line 236 to explain the amendment.
The main motion to approve the proposed amendments to Administrative Rule 41 CARRIED.
Mr. Hoy MOVED to immediately transmit the proposed amendments to the Supreme Court. Mr. Suhr seconded. Motion CARRIED.
RULE 3.1, N.D.R.Ct., PLEADINGS (PAGES 230-242 OF THE AGENDA MATERIAL)
Staff explained that the Odyssey User Group recently reviewed Rule 3.1 and suggested that the committee consider whether there should be a more specific statement on the legal consequences of having a document stricken under the rule. Staff presented proposed amendments to Rule 3.1 providing a safe harbor relief if a document is stricken.
Mr. Beehler MOVED to approve the proposed amendments to Rule 3.1. Judge McCullough seconded.
A member said under the present procedure, if there is a nonconforming document the court can issue an order requiring the document to be corrected. The member said it is only if a party fails to follow the order to correct the document that it could be stricken. The member said that striking the document is a penalty for not following the order to reform the document.
A member said that adopting the proposed amendment would protect lawyers from the possibility of harm if the document is stricken.
The main motion to approve the proposed amendments and send to the Supreme Court as part of the Annual Rules Package CARRIED.
RULE 8.3.1, N.D.R.Ct., CASE MANAGEMENT (NON-DIVORCE CASES) (PAGES 243-253 OF THE AGENDA MATERIAL)
Staff explained that Judge Reich had suggested adoption of a rule for case management of non-divorce cases. Staff presented the proposed new rule.
Judge Reich MOVED to tentatively approve the proposed new Rule 8.3.1 subject to additional discussion at the next meeting. Judge McCullough seconded.
A member said there is currently no rule that covers case management in parenting
rights cases involving non-married people or post-judgment motions to modify parenting rights. The member said in these cases, there are then no scheduling orders or ways to track their progress. The member said that under current Rule 8.3 (which involves divorce cases) these are timelines, a requirement for an informational statement, and ultimately a scheduling order issued. The member said these requirements assure that the case progresses in an orderly fashion. The member said there is a need for similar case management in non-divorce cases involving parenting rights so they will not get lost in the system.
A member asked whether the family law section had looked at this proposal. A member replied that some people from the section had raised concerns about case management but that the proposal had not been examined yet. A member said the child support people should also be asked for input because they initiate many of the non-divorce cases involving parenting rights.
A member said that the N.D.R.Civ.P. 16 procedure could be used to bring non-divorce cases involving parenting rights under greater control. The member said there is an automatic six month triggering date under the rule that allows the court to step in and require a conference.
A member said the two types of cases the proposal is mainly intended to address is a non-divorce action for the determination of parental rights or a motion for change of primary residential responsibility. The member said case management may not be as important in other types of non-divorce cases, such as child support cases.
By unanimous consent, the title of the proposed new rule was changed to "Case Management (Determination of Parental Rights or Change of Primary Residential Responsibility)" and "a family law matter other than a divorce case, including" was deleted from page 244, line 1-2 of the proposal.
A member asked whether under the change of language, this rule would apply in divorce actions involving the determination of parental rights or a motion for change of primary residential responsibility. A member said the language would need to be changed to clarify that this rule applies only to non-divorce actions. The Chair pointed out that post-judgment motions for change of primary residential responsibility sometimes involve re-opening a divorce action.
A member suggested that the parts of the rule where the complaint is mentioned, motions would also need to be mentioned. A member replied that it is not the filing of a motion for change of primary residential responsibility that would trigger case management, but an order for an evidentiary hearing after evaluation of the motion. The member said the
motion must establish a prima facie case before the matter goes forward. A member said if a motion to change primary residential responsibility is made less than 24 months after the original order, the burden to establish a prima facie case is high and many of these early motions do not go forward.
By unanimous consent, the explanatory note was amended to be consistent with the amendment to the title and the initial sentence of the proposal.
The motion for preliminary approval of the proposal pending comments and additional consideration at the next meeting CARRIED 12-1.
FOR THE GOOD OF THE ORDER
The Chair expressed his appreciation to the committee, staff attorney Mike Hagburg and administrative assistant Kim Hoge for their work.
The meeting adjourned at approximately 11:30 a.m. on September 30, 2016.
Michael J. Hagburg