MINUTES OF MEETING
Joint Procedure Committee
April 23-24, 2015
TABLE OF CONTENTS
Rule 3.5, N.D.R.Ct., Electronic Filing in the District Courts 2
Rule 2.2, N.D.R.Ct., Facsimile Transmission 4
Rule 5.4, N.D.R.Ct., Restoration of Firearms Rights 5
Rule 6, N.D.R.Civ.P., Computing and Extending Time; Time for Motion Papers; Rule 3.2,N.D.R.Ct., Motions 6
Rule 52, N.D. Sup. Ct. Admin. R., Contemporaneous Transmission by Reliable Electronic Means 7
Rule 41, N.D. Sup. Ct. Admin. R., Access to Court Records 8
Rule 5, N.D.R.Civ.P., Service and Filing of Pleadings and Other Documents 10
Rule 10, N.D.R.Crim.P., Arraignment 14
Rule 11, N.D.R.Crim.P., Pleas 14
Rule 5, N.D.R.Crim.P., Initial Appearance Before the Magistrate 14
Rule 41, N.D. Sup. Ct. Admin. R., Access to Court Records 15
Rule 5, N.D.R.Civ.P., Service and Filing of Pleadings and Other Documents 16
Rule 11, N.D.R.Civ.P., Signing of Pleadings, Motions and Other Papers; Representations to Court; Sanctions; Rule 11.2, N.D.R.Ct., Withdrawal of Attorneys 16
Rule 12, N.D.R.Crim.P., Pleadings and Pretrial Motions 25
Rule 34, N.D.R.Crim.P., Arresting Judgment 26
Rule 15, N.D.R.Crim.P., Depositions 26
Rule 801, N.D.R.Ev., Definitions That Apply to the Article; Exclusions from Hearsay 27
Rule 803, N.D.R.Ev., Exceptions to the Rule Against Hearsay Regardless of Whether the Declarant is Available as a Witness 27
CALL TO ORDER
The meeting was called to order at 1:00 p.m., on April 23, 2015, by the Chair, Justice Dale Sandstrom.
Justice Dale Sandstrom, Chair
Honorable Todd L. Cresap
Honorable Laurie Fontaine
Honorable John Greenwood
Honorable William A. Herauf
Honorable Steven L. Marquart
Honorable Thomas E. Merrick (Thursday only)
Honorable David E. Reich
Mr. Bradley Beehler
Mr. Daniel Dunn
Prof. Margaret Jackson (Thursday only)
Ms. Carol Larson
Mr. Kent Reierson
Mr. Lloyd Suhr
Honorable Jon Jensen
Honorable Steven McCullough
Mr. Larry Boschee
Mr. Robert Hoy
Mr. Lonnie Olson
Ms. Joanne Hager Ottmar
Staff provided an update on the status of the rule proposals the committee sent to the Supreme Court after the January meeting. The Chair updated the committee on legislative action affecting the courts.
APPROVAL OF MINUTES
Mr. Beehler MOVED to approve the minutes. Judge Reich seconded. The motion to approve the minutes CARRIED.
RULE 3.5, N.D.R.Ct., ELECTRONIC FILING IN THE DISTRICT COURTS (PAGES25-31 OF THE AGENDA MATERIAL)
Staff reviewed amendments the committee proposed to Rule 3.5 at the September
meeting and presented an additional proposed amendment related to electronic signatures.
The Chair explained that electronic signatures on submitted documents was currently being tested in Cass County only. A member said the date and time is applied to the document when the e-signature is affixed. The member said the clerk's office must then process the document before it appears in the electronic case file. The member said the judge does not currently have any ability to make amendments to submitted documents before signing and if changes are needed the document needs to be printed out with changes then being made to the printed copy. The Chair said that the vast majority of documents submitted for judges' signatures do not need to be changed before signing.
The Chair said that previously, judges could e-sign documents generated within the Odyssey system but could not e-sign documents electronically submitted from outside the system. The Chair said that outside documents needed to be printed, signed and then scanned back into the system, so there are many steps saved by the e-signature process. A member said a problem with e-signing documents now is that the document is dated at the time the clerk processes it, not when the judge signs it. The Chair said that work was being done with the new technology to make sure there are no date conflicts created by the e-signing process. Staff said the proposed rule amendment is intended to make it clear that the document is filed when the signature is affixed regardless of what processing is done after that point to get it entered in the electronic file. A member said that it made sense to have the document considered to be filed at the time it is signed.
The Chair said that is best to make sure there are no dates put on the document before the e-signature is affixed because the technology applies a date at the same time the signature goes on. A member said that with Odyssey generated documents, there is a date applied when the clerk processes the document and this might be different from the signature date. The Chair said that IT will need to look at this and that it is possible to change the clerk's "token" so that no date is applied when a document is processed. The Chair said proposed orders now get date stamped when they are e-filed and this date stamp needs to be x'd out when the judge signs the order.
Judge Herauf MOVED to approve the proposed amendments to Rule 3.5. Judge Marquart seconded.
The main motion to send the proposed amendments to the rule to the Supreme Court as part of the annual rules package CARRIED.
RULE 2.2, N.D.R.Ct., FACSIMILE TRANSMISSION (PAGE 32 OF THE AGENDA MATERIALS)
Staff presented proposed amendments to the explanatory note of repealed Rule 2.2 clarifying that fax filing is not allowed in the district courts. Staff explained that text had been left in the explanatory note of the repealed rule to explain where current rules related to electronic filing were located.
Judge Marquart MOVED to repeal the Rule 2.2 explanatory note entirely. Judge Herauf seconded.
A member said that it did not make sense to have an explanatory note for a rule that had been repealed. A member said the current language in the explanatory note might lead people to believe that fax filing is covered in a different rule. A member said there is no rule that allows fax filing in the district courts.
A member asked whether it was necessary to say anything in the explanatory note except: "Rule 2.2 was repealed effective March 1, 2009." A member said that under the current motion this sentence would also be deleted. A member asked whether it would be clear, if the explanatory note language was deleted, that filing by fax in the district courts was not allowed. A member said there is no rule that allows fax filing in the district courts.
Staff explained that one reason for the proposed change was the case of Desert Partners IV, L.P. v. Benson, 2014 ND 192, in which a self-represented litigant had attempted to file by fax. A member said that some out-of-state attorneys who are unfamiliar with North Dakota rules occasionally try to serve or file by fax. A member said if the language proposed by staff was approved, someone who searched the rules would find out in the explanatory note that fax filing is not allowed. A member said that if people, including out-of-state lawyers, would read the rules on filing, they would know fax filing was not among the accepted methods.
A member said it just did not make sense to have an explanatory note to a repealed rule, although the member agreed information should be provided about when the rule was repealed. A member said that without a title on the rule no one would know it related to fax filing.
Judge Marquart MOVED to strike the proposed amendments to Rule 2.2 and to retain only the first sentence of Rule 2.2's explanatory note. Mr. Reierson seconded.
A member said the explanatory note should still have the history of the rule and source notes. A member said it would be useful to restore the title of the rule to go along with the language on when it had been repealed. A member said the language that had originally been proposed made clear what happened to the old fax filing rule and having that information as part of the repealed rule was useful. A member said if the title was restored and the language regarding the repeal of the rule was retained, it would be clear to anyone looking the rule up that the old rule on fax filing was gone.
Judge Herauf MOVED to amend the motion to insert the word "Facsimile Transmission" into the title of Rule 2.2 before [REPEALED]. Mr. Dunn seconded. Motion CARRIED.
A member suggested adding the words "to eliminate filing by fax" to the remaining explanatory note language to explain why the rule was repealed. The member said a cross-reference to Rule 3.5 would also be useful. A member said this could be accomplished in the same way as it was in repealed Rule 4.1, by adding a new sentence indicating that Rule 3.5 addresses electronic filing.
Judge Cresap MOVED to amend the motion to add a second sentence to the explanatory note: "Rule 3.5 addresses electronic filing in the district courts." Judge Herauf seconded.
A member said it seemed odd to have a note explaining why a rule was repealed.
The Chair explained that anyone who wanted to know what previous versions of the rule had said would be able to look these up on the Court's website.
The main motion to send the proposed amendments to Rule 2.2 to the Supreme Court as part of the annual rules package CARRIED.
RULE 5.4, N.D.R.Ct., RESTORATION OF FIREARMS RIGHTS (PAGES 33-43 OFTHEAGENDA MATERIAL)
The committee at the January meeting instructed staff to draft a new rule allowing petitions to restore firearms rights to be submitted in the underlying criminal case. Staff presented the proposed new rule to the committee.
Judge Reich MOVED to adopt the proposed new rule. Judge Marquart seconded.
A member said that a person can lose firearms rights under a guardianship. A member asked whether the mental disability procedure in subdivision (c) of the proposed rule would cover guardianship. A member said that N.D.C.C. § 62.1-02-01.2 on mental disability and the possession of firearms applied to guardianship cases so subdivision (c) of the proposed rule would cover restoration proceedings in these cases.
A member suggested that the word "health" be removed from subdivision (c) and that the statutory term "mental disability" be used instead.
Judge Cresap MOVED to amend lines 11 and 12 on page 34 to remove the word "health" and line 15 on page 34 to replace "health" with "disability." Prof. Jackson seconded. Motion CARRIED.
Judge Reich MOVED to strike "as an item" one lines 4 and 5. Judge Herauf seconded.
A member said the term seemed to be out of place and was not necessary.
The main motion to send the proposed new rule to the Supreme Court as part of the annual rules package CARRIED.
RULE 6, N.D.R.Civ.P., COMPUTING AND EXTENDING TIME; TIME FOR MOTION PAPERS; RULE 3.2, N.D.R.Ct., MOTIONS (PAGES 44-57 OF THE AGENDA MATERIAL)
Staff reviewed the amendments the committee made to Rule 6 and Rule 3.2 at the January meeting. Staff said the committee made the changes to clarify the differences between an evidentiary hearing under Rule 6 and an oral argument under Rule 3.2. Staff also presented additional proposed amendments to Rule 3.2 relating to hearings by reliable electronic means.
Judge Reich MOVED to approve the proposed additional amendments to Rule 3.2. Judge Herauf seconded.
The main motion to send the proposed amendments to Rule 3.2 to the Supreme Court as part of the annual rules package CARRIED.
RULE 52, N.D. Sup. Ct. Admin. R., CONTEMPORANEOUS TRANSMISSION BY RELIABLE ELECTRONIC MEANS (PAGES 77-128 OF THE AGENDA MATERIAL)
Staff explained that the Supreme Court referred Rule 52 to the committee for a discussion of whether a defendant in a criminal case should be required to object to witness testimony by remote means and whether witness testimony by remote means should be allowed in certain circumstances without the defendant's consent. Staff presented proposed amendments that would create an exception to Rule 52's existing consent requirements. Staff also provided the committee a copy of the Uniform Child Witness Testimony by Alternative Methods Act, which provides a framework for the court and parties when child witness testimony by remote means is requested.
The Chair asked whether the uniform act was drafted after the Crawford v. Washington decision. Staff said it was released in 2002, after Crawford. The Chair said that the Court looked into the issue of testimony by remote means after receiving some questions from legislators on why technicians from the state laboratory were being subpoenaed to testify in distant locations like Williston. The legislators suggested they should be allowed to testify remotely. Staff said that the current state of the law gave discretion to the defendant on whether to waive presence of a witness or to require in-person testimony. Staff said courts had only recognized narrow exceptions to the defendant's right to face witnesses in person, such as in cases involving child witnesses in child sexual abuse cases. The Chair observed that Rule 52's language requires affirmative consent of the defendant for remote witness testimony in a criminal case. Staff said Rule 52 had no exceptions to this requirement.
A member said that allowing exceptions to the defendant's right to in-person testimony would raise constitutional concerns. The Chair said that there is currently a case before the U.S. Supreme Court regarding testimony in a child sexual abuse case and that at oral argument, one justice raised concerns about whether Crawford has gone too far in requiring in-person testimony under most circumstances.
Judge Reich MOVED to approve the proposed amendments to Rule 52. Ms. Larson seconded.
Staff said that the proposed amendment to the rule would provide a possible exception to the in-person testimony requirement using the standard set out in Maryland v. Craig. Staff said under the case law, the Craig exception had generally been applied in child sexual abuse cases and cases where witnesses were not able to be present to testify because of medical conditions. A member observed that the proposed exception was based on the assumption that Craig was still good law.
The Chair asked the committee for its thoughts on whether the rule should require an affirmative objection by the defendant to proposed remote testimony. The Chair said N.D.R.Ev. 707 required an objection to the admission of an analytical report.
A member said that child sexual abuse cases have been tried with the child in the courtroom. The member said that under the current state of the law, allowing an exception to in-person testimony even in a child sexual abuse case would raise constitutional concerns. The member said that having the exception in the rule might make it too easy for judges to allow remote testimony without a defendant's waiver. A member said that allowing remote testimony could then become the norm rather than the exception, and that this would lead to appeals that the Supreme Court would have to decide.
Staff said that it had provided the uniform act for the committee to review because it provided a more well-defined mechanism than the Craig standard that courts could apply in cases where remote testimony was an issue.
A member said that even in a child sexual abuse case, it is difficult to define what public policy could outweigh the right to confront a witness in person. The member said the right to confront is an important right that would rarely be outweighed by any public policy concern in a particular case. The member said that if the rule was amended, judges might look for ways to find a public policy that would allow remote testimony and this would create big problems. The member said that requiring defendants to object to remote testimony would be ill-advised because the defendant should not be required to take an affirmative step to protect an acknowledged constitutional right.
A member said that the case described by Judge Mattson in his letter supporting an exception to the defendant's waiver requirement, the child witness was allowed to wear glasses that blocked out sight of the defendant. A member said in cases involving child witnesses courts have been very accommodating in allowing a child witness to have support in the courtroom including having a social worker nearby the stand. The Chair said screens had been used in criminal cases to protect the witness from being seen by the general public in the courtroom.
The motion to amend Rule 52 FAILED 2-11.
RULE 41, N.D. Sup. Ct. Admin. R., ACCESS TO COURT RECORDS (PAGES 129-149 OF THE AGENDA MATERIAL)
Staff explained that the Supreme Court referred Rule 41 to the committee for a
discussion of whether the rule should be amended to place limits on the time court staff spend searching in court records in response to requests for specific information and whether to limit public access to party and witness contact information gathered by court staff for administrative purposes. Staff presented proposed amendments to Rule 41 intended to respond to the issues raised in the Court's referral.
A member asked whether all courthouses had terminals that provided public access to the electronic court records storage system. The Chair explained that all courthouses had terminals where the public could access court records from counties around the state and then print desired records out for a per page fee. The Chair said it was an advancement from the paper records days because the public can now access court records from around the state rather than just the paper records in a given county courthouse. The Chair said lawyers can get access to statewide records from their office or home. The Chair said North Dakota is one of the few states that do not charge for electronic access to court records.
A member asked what problem the proposed amendments were designed to address, given the high level of public access that is available. Staff said the proposal addresses the question of who should have to search for desired information in a court record, the clerk or the member of the public who is seeking the information. Staff said part of the proposed amendment put the responsibility for searching on the person who wants the information, rather than requiring the clerk to search.
Staff said another part of the proposed amendments was intended to limit public access to the "parties tab," which is the part of the electronic court record where administrative and party contact information is entered by court staff. Staff said that access to this information is not restricted under the current language of the rule because the information is not sealed and it does not fall under any of the existing restrictions to access. Currently, however, only court staff can access this information--it cannot be accessed by lawyers on their own computers or through the public access computers at the courthouse.
A member said that in Stutsman County people had been requesting clerks to find the addresses of people who had been ordered to pay child support. A member said that because of Odyssey, the courts were collecting much more "contact information" than in the days of paper records, such as e-mail addresses. The member said this made the courts vulnerable to data miners and requests for things like all the e-mail addresses contained in the state's court records. Staff said the second proposed amendment to the rule was intended to protect the clerks from having to turn over contact information that had been gathered for administrative purposes.
A member asked whether the proposed amendments would restrict the public from
searching the court record for contact information. Staff said the amendments were not intended to limit public searches of court files. A member said this sort of information could have been found in paper case files previously.
Judge Herauf MOVED to approve the proposed amendments to Rule 41. Judge Fontaine seconded.
The Chair said public access to court records works differently from the executive branch opens records act: When an executive branch agency receives a request for information and they are required to search for and may charge for the search time.
The main motion to send the proposed amendments to Rule 41 to the Supreme Court as part of the annual rules package CARRIED.
Staff was instructed to prepare language for the explanatory note explaining the amendments.
RULE 5, N.D.R.Civ.P., SERVICE AND FILING OF PLEADINGS AND OTHERDOCUMENTS (PAGES 150-173 OF THE AGENDA MATERIAL)
Staff said that Judge Josh Rustad had raised the issue of whether Rule 4 or Rule 5 service should be used by a party making a post-judgment motion such as motion to amend child support. Judge Rustad pointed out that the Supreme Court had raised this issue in Rowley v. Cleaver, but the committee had not addressed it. Staff presented proposed amendments to Rule 5 that would require service on the party and attorney when more than a year had passed since the judgment in a case.
A member said that "spousal support" should be substituted for "alimony" and "parenting rights" for "custody" in the proposed amendments and that "property division" should be removed because this cannot generally be reopened.
Judge Merrick MOVED to adopt the proposed amendments with an additional amendment on lines 21-23 on page 153 substituting the following language at the beginning of the sentence: "In any proceeding to modify an order for spousal support or child support or an order on parental rights and responsibilities, or in any proceeding to amend a judgment that is commenced more than one year after entry of judgment . . . ." Ms. Larson seconded.
A member asked whether the purpose of the amendment was to have the party served rather than the attorney, who may have finished with the matter years ago. Staff said the Court suggested in Rowley that the rules require service be made on the party and the
attorney under Rule 5, while Judge Rustad suggested that if there had been a significant lapse of time, the service be made on the party under Rule 4.
A member said that the purposes of Rule 4 and Rule 5 were completely different. The member said Rule 4 service was used to establish jurisdiction over a person while Rule 5 was used to serve papers after jurisdiction had been established. The member said that in the specific matters mentioned in the proposal, the court had continuing jurisdiction over the party so Rule 4 service was inappropriate.
A member said that, with service under Rule 4, there is certainty that the party is served, which is important in cases where there has been a lapse of time since the last action.
The member said that under the proposed amendment, there would just be a mailing to an old address and it would be unlikely the party would receive it. The member said it was important if a court was going to place a financial obligation on a party that the party has notice and is present at the proceeding.
A member said that there are many cases where papers are mailed to the last known address and the rules require the court to consider that those papers have been properly served, even when it is unlikely the papers were ever received by the party. The member said it would be useful to have some way to ensure that a party facing an increased child support obligation is actually informed of this possibility before the court acts.
A member said there was an existing requirement that people subject to obligations such as child support report any changes in address to the state disbursement unit. A member said the fact that this updating generally does not happen underscores the importance of using a more formal means of service when there has been a lapse of time since the last proceeding.
A member said that it is not useful to serve attorneys by mail in cases where there has been a large lapse of time since the last proceeding because the attorneys generally will no longer be in contact with their former clients. The member said attorneys do not have the time and resources needed to track their former clients down so they can be involved in new proceedings. A member said that attorneys in family law cases often are automatically withdrawn from representation at the close of a matter so mailing them papers is not an effective way to ensure the party gets notice.
A member said that in civil involving judgments for money, an attorney likely will be in contact with the other parties even when the judgment is more than a year old. The member said the proposed amendments would make service more onerous in these cases.
Staff said that if the committee favored service under Rule 4 in cases where the
judgment is more than a year old, the proposed language could be inserted as a new subdivision at the end of Rule 4. The Chair suggested that the proposed language could stay in Rule 5 but specify that service be made under Rule 4 when reopening a judgment.
Judge Fontaine MOVED to amend lines 25-26 on page 153 to specify that "service must be made on each party under Rule 4" and to delete the reference to service on attorneys. Judge Herauf seconded.
A member said that the Department of Human Services would likely object to having to perform Rule 4 service in all modification cases. A member said there were several statutes that require service "similar to Rule 4" and that using some variation of this language might be better than requiring strict compliance with Rule 4.
A member said there are not a lot of child support or parental rights and responsibilities modification motions made less than one year after judgment. The member said that modification is restricted by statute. The member said that one year may not be an appropriate time frame for requiring special service. A member said that the motion language expressed a concern with people not getting notice and not participating in hearings where they faced significant increases in child support obligations.
A member said that it is not unjust to impose increased child support obligations on a party who failed to comply with the requirement to keep the mailing address updated and who failed to attend the hearing. The member said the motion language would hamstring child support enforcement because they would have to use special and expensive means to serve parties who they should be able to contact by mail.
A member said that if the party is still represented by an attorney, Rule 5's existing language would require service to be made on the attorney. A member said that this conflicts with the motion language that would require Rule 4 service on a party based on the time that has passed since the judgment, regardless of whether the party is still represented.
A member said it might be advisable for the committee to wait before taking action on the proposal in order to obtain feedback, including from child support enforcement.
A member said the committee should look at the proposed language and see whether there is some way that Rule 5 service would remain the norm but that Rule 4 service could be required if the court thought it was necessary. A member said that requiring Rule 4 service in all cases would place stress on law enforcement because child support enforcement uses the sheriff's office to serve documents.
A member said there seemed to be a difference between the kind of motions that child support enforcement files versus ones parties may file. The member said it might make sense to have different kinds of service possibilities for different motions. A member said child support orders are routinely reviewed every three years.
A member said it may be sufficient if the rule allowed the court, in particular cases where needed, to order a party to make a specified kind of service. The member said there are a lot of cases where a party is not living at the "last known address" and a different type of service other than Rule 5 service by mail should be attempted.
By unanimous consent, the motion to amend was withdrawn.
Judge Fontaine MOVED to add "unless the court orders service on a party under Rule 4" to the end of line 26 on page 153. Mr. Beehler seconded.
A member said that under the motion, the default mode of service would be by Rule 5, but the court could order service under Rule 4 if needed. A member said that the proposal seemed to create an internal conflict because it required service on the parties and attorneys under Rule 5 and then the parties again under Rule 4 if the court ordered. The member said that service on an attorney under Rule 5 is considered also to be service on the party.
Mr. Reierson MOVED to delete "and each of their last known attorneys" from line 25 on page 153. Ms. Larson seconded. Motion CARRIED.
A member asked how a post-judgment motion in a family law case that is brought less than a year after the judgment would be served. A member said that motions to amend the judgment are often made shortly after the judgment is entered. A member said they likely would be served out under Rule 5.
A member asked about the title of the proposed new provision referring to "re-opening." The member said many cases were never formally closed. A member said the text of the proposal made clear the specific types of cases and situations to which the new provision applied.
The main motion to send the proposed amendments to Rule 5 to the Supreme Court as part of the annual rules package CARRIED 10-3.
Staff was instructed to draft language for the explanatory note and bring the rule back
for review by the committee at the Friday session.
LANGUAGE UPDATE FOR CRIMINAL RULES (PAGES 174-190 OF THEAGENDAMATERIAL)
Staff said that proposed amendments to N.D.R.Crim.P. 10 and 11 had been prepared to replace the interactive television language in the rules with the current terminology: "contemporaneous audio or audiovisual transmission by reliable electronic means."
Prof. Jackson MOVED to adopt the proposed amendments to Rule 10. Mr. Suhr seconded. Motion CARRIED.
Judge Herauf MOVED to adopt the proposed amendments to Rule 11. Judge Marquart seconded. Motion CARRIED.
The proposed amendments to Rules 10 and 11 will be sent to the Supreme Court as part of the annual rules package.
RULE 5, N.D.R.Crim.P., INITIAL APPEARANCE BEFORE THE MAGISTRATE(PAGES 191-204 OF THE AGENDA MATERIAL)
Staff said that Fed.R.Crim.P. 5 had been amended to include a requirement that the defendant in a felony case be informed at the initial appearance of the right of a defendant who is not a U.S. citizen to request that a consular officer be informed of the defendant's arrest. Staff said that proposed amendments to N.D.R.Crim.P. 5 consistent with the new federal language had been prepared and that new language had been added to replace the interactive television language in the rule with the current terminology: "contemporaneous audio or audiovisual transmission by reliable electronic means."
Judge Marquart MOVED to approve the proposed amendments to Rule 5. Prof. Jackson seconded.
A member said that the proposed language indicating that consular notification may be required in some cases raised concerns. A member said that the Attorney General's Office regularly sends out notices to prosecutors about treaties entered into by the United States that require consular notification when people of certain nationalities come before the state courts. The member said that the Attorney General works with courts and prosecutors to assist when consular notification is required. A member said there is a manual that lists the countries that must mandatorily be notified and that it provides the contact information for the appropriate consular office.
A member said the proposed language seems to put the requirement to contact the consulate on the judges. A member said that it is the state's attorney that has to carry out any mandatory notification. A member said that the rule should include what the court is required to advise the defendant. Staff said that the federal comment stated that the advice is intended to be given to all defendants without an inquiry as to whether they are foreign nationals or not.
A member said the trial court benchbook already included guidance advising about a foreign citizen's right to consult with their consulate and that the rule language should be consistent with the benchbook. A member said the general language requiring advice about the right to contact a consulate was not a problem, but the language suggested that the court might have a legal obligation to contact a consulate in certain circumstances was troubling. A member said this could require a further inquiry of the defendant on the defendant's nationality. A member said that some defendants might not want to reveal this.
Judge Marquart MOVED to delete "--but that even without the defendant's request, a treaty or other international agreement may require consular notification" on page 193, lines 35-37. Judge Herauf seconded.
A member asked whether the language proposed for deletion is not just a restatement of the current law under various treaties. The member said it was a reminder of what we are obligated to do to comply with these treaties.
Motion CARRIED 8-6.
By unanimous consent, page 197, line 114 was amended to replace "preliminary examination" with "initial appearance."
The main motion to send the proposed amendments to Rule 5 to the Supreme Court as part of the annual rules package CARRIED.
April 24, 2015 - Friday
The meeting was called to order at approximately 9:00 a.m., by Justice Dale Sandstrom, Chair.
RULE 41, N.D. Sup. Ct. Admin. R., ACCESS TO COURT RECORDS (PAGES129-149OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 41's explanatory note consistent with
the textual amendments approved by the committee.
Judge Herauf MOVED to approve the proposed amendments. Judge Marquart seconded. Motion CARRIED.
RULE 5, N.D.R.Civ.P., SERVICE AND FILING OF PLEADINGS AND OTHERDOCUMENTS (PAGES 150-173 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 5's explanatory note consistent with the textual amendments approved by the committee.
Judge Marquart MOVED to approve the proposed amendments. Judge Herauf seconded.
A member said the proposed explanatory note language clarified that the new provision applied only to judgments and orders that had been in place for one year.
RULE 11, N.D.R.Civ.P., SIGNING OF PLEADINGS, MOTIONS AND OTHERPAPERS;REPRESENTATIONS TO COURT; SANCTIONS; RULE 11.2, N.D.R.Ct., WITHDRAWAL OFATTORNEYS (PAGES 58-76 OF THE AGENDA MATERIAL)
Staff said that the Minority Justice Implementation Committee had requested that the committee consider proposed amendments to N.D.R.Civ.P. 11 and N.D.R.Ct. 11.2 regarding limited scope representation. Staff explained that the committee had considered the proposed amendments at the January meeting and requested additional information.
The Chair welcomed Judge Donovan Foughty, chair of the Minority Justice Implementation Committee, who was present to address the committee's questions about the proposed amendments.
Judge Foughty said that the MJIC had found that minorities were over represented in poverty. He said that 50 percent of the people using legal aid services were minorities. He said that minority groups constitute approximately 10 percent of the state's population and because of lack of financial means this group does not have good access to the legal system. He said the MJIC thought that making it easier for attorneys to provide limited scope representation could help minorities and the poor get better access to the legal system.
Judge Foughty said that he had consulted with the Nebraska bar director about its
innovations in limited scope representation. He said that even though Nebraska had promoted the concept of limited scope representation, it had found it difficult to get attorneys to offer limited scope representation.
Judge Foughty said that the MJIC thought that limited scope representation would be especially useful in the context of family law. He said being able to get limited representation would help people without means to get divorces and custody orders. He said that improving the limited representation rule would be the first step in a process that would include educating attorneys and judges about how to use limited representation to help people with limited means especially in family law cases. He said there was a lot of frustration in the minority community about the legal system working against them rather than for them.
Judge Foughty said the MJIC wanted to be involved with developing forms for lawyers to use in providing limited representation in family law cases. He said he hoped that they could get commitments from larger law firms to provide a set amount of legal help per year and to link up people with the legal help.
Judge Foughty said getting the rules in a form that lawyers and judges could be happy with was a first step. Then the education could begin. He said there was a real fear of limited representation among attorneys, especially if they appear in court on behalf of a client. He said the attorneys fear the judges will never release them from representation if this happens and that judges need education about limited representation too.
Judge Foughty said that the only suggestion he had for the rule language was to "of limited appearance" after "notice" on page 63, line 73.
A member asked whether the reluctance of attorneys to enter into limited representation had anything to do with malpractice concerns. Judge Foughty said that this was an issue because lawyers were not certain about the extent of services that the lawyer would be obligated to provide the client under a limited representation. He said this was one reason why limited representation should perhaps be limited to specific areas of the law such as family law. He said that in family law, attorneys might be convinced to provided limited scope representation to help clients carry out certain specific tasks.
The Chair said that the Supreme Court often received documents from self-represented litigants that clearly were prepared by lawyers. Members said this happened in district court also. Judge Foughty said that the objective of the proposed rule changes was to allow attorneys to help out people by doing things such as assisting with documents without getting stuck as full-scale representatives of the party.
A member expressed support for having limited representation. The member asked whether it was contemplated under the proposal that the attorney and a party could enter into an agreement in which the attorney just drafted the complaint, for example, and left everything else in the case to the party. The member said it would be better if the attorney were obligated to complete a compartmentalized part of the case for the party, such as obtaining an order, rather than just preparing a piece of paper and letting the party run with the rest. Judge Foughty said the rule would allow the attorney to follow either approach.
A member said that allowing an attorney to do a limited representation but requiring the attorney to take some segment of the case to completion before withdrawal was possible would discourage attorneys from entering into limited representations. The member said that an attorney might be willing to do some research and help a party with a portion of a brief, but requiring the attorney to also sign off on a document filed with the court could discourage the attorney from entering into a limited representation. The member said an attorney whose name is on a brief for helping with research may be subject for sanctions for libel, slander and false representation carried out by the limited representation party who actually wrote the brief. The member said that the proposed requirement that an attorney sign a "prepared by" statement on pleadings should be eliminated. The member agreed the scope of the limited representation should be memorialized in an agreement between the party and attorney.
Judge Foughty said that if taking out the "prepared by" signature would help encourage more attorneys to provide limited representation, he would support the change. A member said that there was probably little the committee could do by rule amendments to change attorneys' minds about limited representation and that education would be necessary. A member said that more education about the usefulness of limited representation is important. The member said most attorneys confronted by a person who has a problem that needs to be addressed within the legal system, but who has no resources to hire an attorney, will try to provide as much help as possible. The member said when providing this sort of help, the attorney has no obligation to put their name on any pleadings or to take constant calls from the person. The member said if attorneys could enter into a limited representation without the obligation to sign papers or to provide continuing representation in a case that might be a workable approach. The member said being required to file a notice of limited representation might scare some lawyers, raise malpractice concerns, and imply that a lawyer has a continuing obligation to the party.
Judge Foughty said that for a limited representation program to work, the court system would need to provide education to lawyers and also resources such as forms and sample documentation to use in limited representations. Judge Foughty said the focus in limited representations should be in family law actions where the attorney can assist by helping the
party fill out the court designed forms. A member said that having legal clinics on set dates where lawyers can come in on a volunteer basis and act in a limited representative role to help parties fill out forms might be appealing to lawyers.
Judge Foughty said that every attorney he has talked to has some reservation about limited representation. He said that rules need to be put in place so that steps can be taken to try to expand limited representation. He said that many attorneys put in many pro bono hours and that one of the objectives of wanting to expand limited representation is to make it easier for more attorneys to contribute.
A member asked whether the rules might be subject to manipulation by attorneys seeking to withdraw from cases by claiming that the representation was intended to be limited. The member asked whether the court would be informed that there was a limited representation at the beginning of the case. Judge Foughty said that under the proposed rule, the notice of limited representation would be in the file and the lawyer's name would be on any paperwork the lawyer had assisted in preparing. A member said that the proposed rule language seemed to make filing the notice of limited representation mandatory.
A member said that the proposed language at lines 68-72 on page 63 did not make it clear that a notice of limited representation needed to be filed. The member said the language allowed the attorney and client agree to the terms of a limited representation in writing and then for the attorney to enter a "limited appearance" on behalf of a client. A member said that, under the proposed language, the limited representation agreement seemed to be between the attorney and client, not something shared or filed with the court unless there was an issue arising from it.
A member said that the proposed forms could address this issue by including language that required all communication to be with the party, not the lawyer who provided form assistance. A member said it would protect the lawyer to have the notice of limited appearance indicating the parameters of the representation filed because this would make it clear that the lawyer was not the person who the judge should be contacting or who should be receiving correspondence in the case.
A member said that under the proposal, if a lawyer is just preparing a complaint or pleading, they would have to put their name on the document but this would not be an appearance and no notice of limited representation would need to be filed--the extent of the lawyer's assistance would be clear from the document. Staff said that the existing rule required a notice of limited representation to be served on the other parties while the proposed new language seemed to require some additional notice document to be filed with the court depending on what services the lawyer was providing.
Judge Foughty said the Nebraska approach was that after the attorney and client entered into their agreement, filing a "notice of limited appearance" that explained the scope of the representation was required.
Judge Herauf MOVED to approve the amendments to Rule 11 with "of Limited Appearance" added after "Notice" on line 73, page 63. Judge Marquart seconded.
A member said that language on page 64, lines 83-85, indicating that the rule applied to all papers signed by an attorney acting within the scope of a limited representation, and the language on page 63, lines 65-67, indicating that, when an attorney assists a litigant in preparing a filing, the attorney may not sign the paper, seemed to be inconsistent. A member said the language on page 64 may need to be modified to include assistance in preparation of documents the attorney does not sign.
The Chair asked at what stage in the litigation a notice of limited representation would be filed. A member said that the existing language of the rule required a notice of limited representation to be served when the attorney assists a party in a case and for the notice to be filed if the case is filed.
A member said the proposed new language seemed to treat assistance with pleadings differently than other limited appearances. A member asked whether a lawyer would need to comply with the notice of limited representation requirements if all the lawyer was doing was assisting with the pleadings. The member said that the language may need to be amended to make clear whether a notice of limited representation is required if an attorney only provides assistance with the pleadings. A member said an attorney's limited participation in assisting with the pleadings will be clear because the attorney will need to comply with providing "prepared by" information. The member said that attorney should not have to file a more formal notice of limited representation unless the attorney plays a more extensive role in the case.
The Chair said that the people calling into the Court's self-help center mostly were seeking assistance in filling our forms and making this kind of help available was important.
Staff suggested that the language in paragraphs 2 through 5 on page 63-64 could be merged together and this would make it clearer that the notice requirements applied only when the attorney made an appearance on behalf of a party in a case, not when the attorney only provided drafting assistance. A member said it would still be necessary for the attorney to have some sort of written agreement with the party about the extent of their relationship even if the attorney was only helping with pleadings.
Judge Foughty said from a practical standpoint, an attorney providing limited representation in a divorce case might assist with the pleadings and the findings of fact and conclusions of law. He said that an attorney providing this kind of assistance in what is likely to be a default case would not need to provide a very extensive or complicated notice of limited representation: just a statement that the attorney had helped prepare and file certain documents.
A member said that in a divorce case, an attorney providing full representation would have to question the client carefully about their financial situation and property before filing the required pleadings. The member asked whether an attorney providing limited representation could avoid doing this. Judge Foughty said that in a limited scope representation, a party asks for specific assistance and the attorney provides specified limited assistance. A member said that even in providing limited assistance filling out forms in a divorce case, an attorney would have provided some level of advice about the consequences of making certain choices. Judge Foughty said there may be problems in limiting the scope of representation, but that limited scope representation is designed to give people access to the system who may not have had access previously.
A member said that it might be preferable to have attorneys provide a notice of limited representation in all cases where they provide assistance, rather than requiring attorneys to put their names on pleadings when they have provided partial preparation assistance. The member said that if an attorney's name is on a pleading that attorney could be subject to Rule 11 sanctions even if they did not sign it. The member said if the attorney's name is not on a pleading, but the attorney has served and filed the notice of limited representation, everyone will know the attorney is assisting the person but the attorney cannot be held responsible for a document that the attorney did not sign.
The Chair asked whether, in a case where an attorney helped a party prepare pleadings in a divorce case and then gave the pleadings to the party, the party would serve the notice of limited representation with the pleadings. A member said that under the existing rule language, the notice would have to be served and then, when the matter was filed, the notice would also have to be filed. The member said that this gives the other parties and the court notice that an attorney is involved in a limited capacity, while the details of the limited representation are between the party and the attorney as part of their agreement.
Judge Foughty asked whether a lawyer should be required to disclose the limitations on representation in the notice. A member said this would be disclosing a private agreement. A member said that disclosing the limitations in the notice would allow the court to understand whether it should be calling the attorney when no one shows up for hearings or when it has other questions. A member said the court needs to know what the representation
A member asked whether the notice that is filed should be confidential with the court. The member said if the other parties know what the limitations are on an attorney's representation, they may be able to take advantage of the client. The Chair pointed out that if the other party did not know the limits of an attorney's representation, they would not know who to serve papers on. Judge Foughty said it was important for both the court and the other parties to know the extent of the limited representation.
A member said an attorney may get more protection without filing a notice when they simply assist in preparing papers and provide a "prepared by" notice on the document. The member said if the attorney hands the prepared papers to a party along with a separate notice that needs to be served and filed, the attorney will never know if the notice gets served and filed. The member said that having an attorney's name in a "prepared by" block separate from the signature block would not trigger Rule 11 sanctions--an attorney who just helps prepare documents is not representing anyone. The member said if the attorney's role goes beyond being a scrivener, then a notice of limited representation would be appropriate.
A member said problems could arise for attorneys whose assistance does not rise to the level of being scriveners, who help the self-represented party find research material and create an argument in a brief. The member said such material could be distorted by the party. A member said that attorneys want control over the final product that they put their names on and if they go into a representation where they do not have this, it is problematic. The member said that requiring attorneys to disclose their confidential relationships with their clients through a notice of limited representation may be helpful to judges but it is the sort of thing that makes attorneys uncomfortable and could cause them to avoid entering into limited representations.
A member said he understood why attorneys would be concerned about providing detail about their relationships with clients but that disclosing the limits of the attorney's representation is also helpful to the attorney because it limits the phone calls and queries that the court and other parties need to make about who is responsible for what in a case. A member said that a possible solution would be disclosing to the client in the initial agreement details about the kind of information that would be provided to other parties and to the court.
The Chair asked whether the language on page 63, line 73, should be changed to read "Notice of Limited Appearance" as suggested by Judge Foughty. A member said that "Notice of Limited Appearance" seems to be the appropriate terminology but that the organization of the rule should be changed to make clear that the notice requirement only applies when there is a limited appearance, not when the attorney acts merely as a scrivener.
A member said that the subdivision is called "limited representation" but that a "limited appearance" is the specific type of limited representation that the notice requirement applies to. A member said that "limited appearance" seems to imply involvement in a court proceeding, but other parties may still want and need to know what an attorney's "limited representation" is even if there is no appearance in court.
The Chair said that the proposed language on page 63, lines 65-67, required a client to sign papers as "self-represented" when an attorney assisted in preparation and put attorney information in the "prepared by" block. The Chair said this meant in the typical default case the answer would come back to the party and the case would proceed without involvement by the lawyer. Judge Foughty said that with mediation and other resources available now, a party may get additional help proceeding through the system. Judge Foughty said the rule was designed to help get a party into the system by having lawyers provide limited assistance with such things as boilerplate forms.
A member asked again whether a "limited appearance" was intended to mean that the attorney was providing services in court, beyond helping with forms. A member said it could also be assisting with depositions or other activity in a case. A member said that if a lawyer is just doing paperwork and is providing their ID number on it, there is no reason for them to have to serve and file a notice of limited appearance.
A member said paragraph (1), which talks about preparing papers, clearly is describing activity that does not amount to an appearance. The member said, however, that it is possible to appear on behalf of a client without actually appearing in court. The member said the language in paragraph (3), which requires a notice of limited representation to be filed when an attorney "assists" a self-represented party would encompass the scrivener work discussed in paragraph (1). The member suggested that "appears for" should replace "assists" in paragraph (3).
Staff suggested that the language of the rule could be modified to make it clear that an agreement is required when an attorney assists a party in a limited way, including preparing papers, but that serving and filing a notice of limited appearance is not required unless the attorney appears on the party's behalf.
A member said that what happens now is that people from time to time come into court with prepared documents without any attorney name, but that clearly were produced by an attorney. The member said that the proposed new "prepared by" requirement is a big change and some attorneys who now assist parties with documents may be disinclined to provide help in the future because they have to put their names on the documents. The
member said that it would be helpful to add language indicating "no notice is required" when an attorney just assists with preparation of pleadings. The member said the language would clarify that no further notice beyond the "prepared by" statement is required. The member suggested that attorneys need to make clear to the clients the level of assistance they will provide and if they agree to provide only paperwork help, they need to state that this is all they will do.
A member asked whether the "prepared by" language was needed if an attorney only provided help with document drafting. A member asked what purpose the "prepared by" requirement served if the whole idea behind the proposed amendments was to encourage lawyers to enter into limited representation. The Chair said the Court has said that a lawyer is not always protected even if the lawyer does precisely what the client instructs. A member said this leads back to the problem that the bar has with limited representation: if a client does not tell the lawyer everything, then the lawyer cannot be sure that the drafted document is complete and correct.
A member asked whether the "prepared by" statement is required because of a concern about the unauthorized practice of law by non-lawyers or non-licensed lawyers. A member said the court system does not really care who helps a self-represented litigant as long as the needed paperwork gets done. The member said it is the self-represented litigant who signs the document. The member said it is understandable that attorneys would be concerned about putting their name on a document that they do not control after giving it back to the self-represented litigant. A member said once a document with a "prepared by" statement gets filed with the court, the court has information about who it can turn to if it needs more help than the self-represented litigant can give.
Staff suggested that, based on the committee's discussions, language could be added at the beginning of paragraph (1): "Subject to a written limited representation agreement between the attorney and party . . ." Staff suggested that the "prepared by" requirement could then be removed. Staff said that the suggested language about no notice of limited representation under paragraph (3) being required could be added to the end of the paragraph.
The Chair said that he recognized some members were concerned about requiring the lawyer to reveal the confidential relationship with the party through a notice of limited representation. The Chair said that staff's suggestion would take care of this concern as far as pleadings were concerned but that the notice requirement would still remain if an appearance was made. A member said that disclosure of the basics of the limited representation without revealing confidential and privileged information about the client is important. The member said it is important for the court to know the extent of a party's relationship with an attorney providing limited representation.
Judge Herauf MOVED for staff to re-draft the proposed amendments consistent with the committee's discussion and to bring the rule back for additional review. Judge Marquart seconded. Motion CARRIED.
The Chair asked whether the committee had any comments about the parallel proposal on withdrawal from limited representation. The Chair said that proposed language essentially made limited representation self-contained, with a beginning and ending point and no need for a lawyer to request withdrawal. Judge Foughty said it is important that a limited representation have a clear ending, but that once a case is filed, events may change this. He said that an opposing party in an attempted default divorce may want an additional stipulation on a point and the party may need more help from the attorney. Judge Foughty said in general there needs to be an agreed end and the attorney needs to be able to get out.
A member asked whether the Minority Justice Implementation Committee had looked at coordinating a way for lawyers who may be interested in assisting parties on a limited basis to do this through clinics or legal aid. The member said that lawyers may be more willing to provide this sort of help through an agency like legal aid than through their own offices. The member said firms also may be more willing to encourage its lawyers to provide this kind of assistance through a weekend clinic somewhere. Judge Foughty said this was a good suggestion. A member said that the new Self Help Center might be able to help coordinate this.
RULE 12, N.D.R.Crim.P., PLEADINGS AND PRETRIAL MOTIONS (PAGES205-214OF THE AGENDA MATERIAL)
Staff said that Fed.R.Crim.P. 12 had been amended to provide more specificity regarding what motions must be made before trial in a criminal case and provide a mechanism for setting a deadline for pretrial motions. Staff presented the committee with proposed amendments to Rule 12 consistent with the federal amendments.
Judge Fontaine MOVED to approve the proposed amendments to Rule 12. Judge Marquart seconded.
A member said that the changes proposed for the rule would not create a substantive change in current procedure. A member asked whether anyone had ever seen a motion alleging "selective or vindictive prosecution" as listed on page 208, line 20. No one reported seeing a successful motion of this kind.
A member noted that on page 209, lines 49-50, the default deadline for a pretrial motion is the start of trial. The member asked if "start of trial" was defined anywhere. The
member said some attorneys will wait until jeopardy attaches before bringing motions and there is a question whether this would be considered after the start of trial. Members said that if jeopardy has attached, the trial has begun. Staff said the comments to the federal rule indicated that the "start of trial" deadline was included in the rule so that motions could be decided before jeopardy attached.
The main motion to send the proposed amendments to Rule 12 to the Supreme Court as part of the annual rules package CARRIED.
RULE 34, N.D.R.Crim.P., ARRESTING JUDGMENT (PAGES 215-217 OF THE AGENDA MATERIAL)
Staff said that Fed.R.Crim.P. 34 had been amended to allow a court to arrest judgment only if it did not have jurisdiction over the offense. Staff presented the committee with proposed amendments to Rule 34 consistent with the federal amendments.
Judge Herauf MOVED to approve the proposed amendments to Rule 34. Judge Marquart seconded.
The main motion to send the proposed amendments to Rule 34 to the Supreme Court as part of the annual rules package CARRIED.
RULE 15, N.D.R.Crim.P., DEPOSITIONS (PAGES 233-252 OF THE AGENDA MATERIAL)
Staff said that Fed.R.Crim.P. 15 had been amended to provide a mechanism to take evidentiary depositions in foreign countries without the presence of the defendant. Staff explained that North Dakota's Rule 15 is based on Unif.R.Crim.P. 431 and not the federal rule, but said the committee may wish to discuss whether it would be useful to incorporate the federal change.
Judge Marquart MOVED to adopt the proposed amendments to Rule 15. Mr. Suhr seconded.
A member said that the committee had a lengthy discussion about allowing child witnesses to testify outside the presence of the defendant and the committee rejected that idea. The member said that the proposal seemed to be contrary to confrontation clause principles because it would allow testimony against a defendant to be gathered outside the defendant's presence. A member noted that the federal changes were made post-Crawford with the assent of the Supreme Court. Staff said one of the factors the court was required to
take into account when deciding whether to allow a foreign evidentiary deposition was whether the defendant could participate be reasonable means.
The main motion to send the proposed amendments to Rule 15 to the Supreme Court as part of the annual rules package CARRIED.
RULE 801, N.D.R.Ev., DEFINITIONS THAT APPLY TO THIS ARTICLE;EXCLUSIONS FROM HEARSAY (PAGES 253-264 OF THE AGENDA MATERIAL)
Staff said that Fed.R.Ev. 801 had been amended to allow the use of a prior consistent statement to rehabilitate the declarant's credibility as a witness when attacked on another ground. Staff presented the committee proposed amendments to Rule 801 consistent with the federal amendments.
Judge Herauf MOVED to adopt the proposed amendments to Rule 801. Judge Fontaine seconded.
A member asked whether "attacked on another ground" meant something different that an accusation of fabrication because of improper influence. A member said there did not seem to be other grounds to attack testimony beyond fabrication. A member suggested that the other grounds for attack could go to the witnesses ability to accurately perceive what they were testifying about. A member said that perhaps a prior conviction had been used to attack a witness' testimony and there was a desire to use prior consistent testimony to rehabilitate the witness.
The main motion to send the proposed amendments to Rule 801 to the Supreme Court as part of the annual rules package CARRIED.
RULE 803, N.D.R.Ev., EXCEPTIONS TO THE RULE AGAINST HEARSAYREGARDLESS OF WHETHER THE DECLARANT IS AVAILABLE AS A WITNESS(PAGES 265- 282 OF THE AGENDA MATERIAL)
Staff said that Fed.R.Ev. 803 had been amended to address the fact that, under the business and public records exceptions, the rule did not specifically state which party had the burden of showing trustworthiness or untrustworthiness of these records. Staff presented the committee with proposed amendments to Rule 803 consistent with the federal amendments.
Ms. Larson MOVED to adopt the proposed amendments to Rule 803. Judge Cresap seconded.
A member asked how the change to the federal rule came about. Staff said that it was an outgrowth of the form and style changes to the federal rules that had been previously approved. Staff said that the federal evidence rules committee, in the process of doing the form and style amendments, had discovered an ambiguity in the rule regarding which party had the burden of showing trustworthiness or lack of it and had proposed the change to correct the ambiguity.
The main motion to send the proposed amendments to Rule 803 to the Supreme Court as part of the annual rules package CARRIED.
FOR THE GOOD OF THE ORDER
The Chair asked whether the committee members had any proposals for future committee study.
A member said there was some confusion regarding Criminal Rule 43 and written waivers of preliminary hearings. The member said different districts were addressing the problem differently. The member said the confusion was about whether both preliminary hearings and arraignments could be waived in a felony case. The member also said the prefatory language "if the court permits" now applied to felony and misdemeanor cases and seemed to require the court to do an order in each case, even in misdemeanor matters.
A member said judges in the Southeast Judicial District were split about whether an arraignment could be waived given that the rule only mentioned the waiver of preliminary hearings. The member said there was also some confusion about whether the proceedings could be handled completely on paper in a felony case or whether there still had to be a court hearing with the attorney present.
The Chair said that prior to unification, the preliminary hearing was held in county court and, if a bind over decision was made, the arraignment was held in district court. The Chair said that since unification, the arraignment typically happens immediately after the preliminary hearings. The Chair said it is important at some stage that the defendant be instructed on the significance of a felony charge being brought.
A member said a significant problem was that forms including waiver of arraignment in felony cases were being submitted. The Chair said the committee could look at the issue at the next meeting.
The meeting adjourned at approximately 11:00 a.m. on April 24, 2015.
Michael J. Hagburg