Administrative Rule 41.1 - OPEN MEETINGS

Section 1. Introduction.

This rule implements the constitutional open meetings provision N.D. Const. art. XI, § 5, for the judicial branch. To do so, the supreme court through this rule exercises its constitutional authority to provide for administration of the judicial branch and adopts provisions similar to those applicable to the rest of state government.

The intent of this rule is to establish procedures for the judicial branch and its committees and workgroups to conduct open and public meetings while allowing flexibility to close meetings to consider matters necessary to carry out the courts’ adjudicative functions and other matters of a confidential nature.

Unless provided otherwise in this rule or by other law, all meetings are open to the public.

Section 2. Applicability.

This rule shall apply to all judicial branch committees and workgroups and meetings of the supreme court justices unless otherwise provided.

Section 3. Definitions.

(a) “Committee” means a group of individuals who have been formally appointed to meet as a group pursuant to court rule. Committee also includes:

(1) The Judicial Conference established by N.D.C.C. § 27-15-01.

(2) The Board of Law Examiners established by N.D.C.C. § 27-11-06.

(3) The Judicial Conduct Commission established by N.D.C.C. § 27-23-02.

(4) The Judicial Nominating Committee established by N.D. Const. Art. VI, § 13 and N.D.C.C. § 27-25-02.

(b) “Meeting” means a formal or informal gathering or work session, whether in person or through any electronic means of a quorum of the members. “Meeting” does not include:

(1) A chance or social gathering at which public business is not considered;

(2) The attendance of members of a committee or workgroup at meetings of any national, regional, or state association to which the members belong; and

(3) Training seminars at which no other public business is considered or discussed.

(c) “Workgroup” means a group of individuals who have been given authority by the chief justice of the supreme court to meet and provide guidance and assistance to the supreme court. The chief justice of the supreme court shall appoint the chair of each workgroup. The chair of the workgroup may appoint members to the workgroup unless otherwise specified by the chief justice. Workgroup includes a task force and ad hoc committee.

Explanatory Note to Section 3.

Court proceedings and internal staff meetings do not fall under the definitions of committee or workgroup meeting.

Section 4. Access to Public Meetings.

Except as otherwise provided, all meetings under this rule must be open to the public.

(a) This section is violated when any person is denied access to a meeting under this rule, unless such refusal, implicitly or explicitly communicated, is due to a lack of physical space in the meeting room for the persons seeking access or lack of electronic capacity to allow public viewing of the meeting through electronic means.

(b) For purposes of this rule, if the meeting is held in person, the meeting room must be accessible to, and the size of the room must accommodate, the number of persons reasonably expected to attend the meeting. If the meeting is held by electronic means, the electronic capacity must accommodate the number of persons reasonably expected to attend the meeting remotely.

(c) The right of a person to attend a meeting under this rule includes the right to photograph, to record on audiotape or videotape, and to broadcast live on radio or television the portion of the meeting that is not closed, provided there is no active interference with the conduct of the meeting. The exercise of this right may not be dependent upon the prior approval of the committee or workgroup. However, the committee or workgroup may impose reasonable limitations on recording activity to minimize the possibility of disruption of the meeting. The written minutes of the meeting constitute the official record.

(d) For meetings subject to this rule, if the meeting is held through any electronic means, the information necessary to join or view the meeting electronically must be included with the meeting notice.

(e) Members of the public attending an open meeting must remain orderly. Any person disrupting the meeting may be removed by the chair.

Explanatory Note to Section 4.

Section 4 is derived from N.D.C.C. § 44-04-19.

Section 5. Meeting Notice.

(a) Unless otherwise provided, public notice must be given in advance of all open meetings under this rule, including meetings held remotely. Notices must be posted to the North Dakota Supreme Court internet website at www.ndcourts.gov/meetings-and-events at least 24 hours prior to a meeting.

(b) The notice required in this rule must contain the date, time, and location of the meeting and, if practicable, the topics to be considered. However, the lack of an agenda in the notice, or a departure from, or an addition to, the agenda at a meeting does not affect the validity of the meeting or the actions taken at the meeting. For remote meetings held by electronic means, the location of the meeting is the electronic address and any other information necessary to allow the public to join or view the remote meeting.

(c) The public must be given notice of a meeting’s date, time, and location, at the same time as the members of the committee or taskforce or workgroup are notified. As soon as an agenda is prepared for a meeting and given to the members of the committee or taskforce or workgroup, the agenda must be posted and given to anyone requesting the information.

(d) When, due to unforeseen circumstances, it is necessary for a committee or workgroup to consider a matter of an urgent nature, the requirement of public notice may be suspended and the best notice practicable given. The reason for the inability to comply with this rule must be stated in the minutes of the meeting.

(e) This section is violated when a notice is not provided in substantial compliance with this section.

Explanatory Notes to Section 5.

Section 5 is derived from N.D.C.C. § 44-04-20.

A committee or workgroup must comply with both subsection (a) and (c). The notice and agenda must be posted at the same time as members are given notice or the agenda, but not less than 24 hours before the meeting.

Section 6. Closed Meetings.

The following meetings are not open to the public:

(a) Employee grievances and appeal under N.D.Sup.Ct.Admin.R. 33;

(b) Meetings of the supreme court justices, except those involving rulemaking functions;

(c) Meetings of the district court judges;

(d) Meetings of the Board of Law Examiners established by N.D.C.C. § 27-11-06;

(e) Meetings of the Disciplinary Board established by N.D.R.Lawyer Discipl. 2.1;

(f) Meetings of the Informal Complaint Panel established by N.D.Sup.Ct.Admin.R. 44;

 (g) Meetings of the Judicial Conduct Commission established by N.D.C.C. § 27-23-02;

(h) Meetings of the Judicial Ethics Advisory Committee established by N.D.Sup.Ct.Admin.R. 54;

(i) Meetings of the Judicial Nominating Committee established by N.D. Const. Art. VI, § 13 and N.D.C.C. § 27-25-02;

(j) Meetings of the Lay Guardian Ad Litem Review Board established by N.D.R.Juv.P. 17;

(k) Meetings of the Parenting Investigator Review Board established by N.D.R.Ct. 8.6;

(l) Meetings of a judicial security committee;

(m) Staffing meetings for treatment and juvenile courts; and

(n) A committee or workgroup or a particular meeting of a committee or workgroup designated by the chief justice of the supreme court as closed to the public based on the subject matter being addressed.

Section 7. Action by E-Mail.

(a) Action may be taken by e-mail on a proposal between meetings if:

(1) The proposal was discussed and considered at a previous meeting but

additional information was needed; or

(2) The chair concludes that prompt action is needed.

(b) Written minutes describing the action taken on an e-mail proposal that otherwise must be discussed in an open meeting must be prepared for approval at a future meeting. The approved minutes constitute the official record.

Section 8. Noncompliance.

(a) Remedial measures. All committees and workgroups shall comply with the provisions of this rule. If noncompliance is discovered, the chair of the committee or workgroup or the chief justice of the supreme court shall take reasonable measures to bring the committee or workgroup into compliance. Such measures may include reconsideration of a matter at a subsequent meeting.

(b) Validity. Failure to comply with this rule in any respect shall not be a basis for invalidation of any action of a committee or workgroup.

Explanatory Note to Section 8.

Attorney General opinions interpreting open meetings statutes may be persuasive when applying this rule, but they are not authoritative.