Administrative Rule 52 - RELIABLE ELECTRONIC MEANS PROCEEDINGS

Section 1. Purpose and Definition.

This rule provides a framework for the use of reliable electronic means for proceedings in North Dakota's district and municipal courts. This rule is intended to enhance the current level of judicial services available within the North Dakota court system through the use of reliable electronic means and not in any way to reduce the current level of judicial services.

Section 2. In General.

(a) Subject to the limitations in sections 3, 4 and 5, a court may conduct a proceeding by reliable electronic means on its own motion or on a party's motion.

(b) Prior to filing a motion to conduct a proceeding by reliable electronic means, a party must attempt to contact the other parties to determine whether they agree or object. 

(c) A party's motion must:

(1) be written:

(2) contain a short and plain statement of the reasons why conducting the proceeding by reliable electronic means is appropriate;

(3) indicate whether the parties agree to conducting the proceeding by reliable electronic means;

(4) provide a statement of good cause if a party is requesting to shorten the time requirements under subsection (e).

(d) Neither a notice of motion nor supporting brief is required.

(e) A motion to conduct a proceeding by reliable electronic means must be served at least seven days before the proceeding. Any response must be served at least four days prior to the proceeding. The court for good cause may shorten the time requirements of this rule.

(f) If a reliable electronic means motion is approved, the parties must coordinate with the court to facilitate scheduling and manage technical aspects of the proceeding, including arranging for confidential attorney-client communication.

(g) A method for electronic transmission of documents must be available at each site where reliable electronic means are used in a court proceeding for use in conjunction with the proceeding.

Section 3. Civil Action.

(a) In a civil action, a court may conduct a trial, hearing, conference, or other proceeding, or take testimony, by reliable electronic means.

(b) A trial may not be conducted by reliable electronic means unless the parties consent and the court approves. The court retains discretion to allow any witness to appear by reliable electronic means.

Section 4. Criminal Action.

(a) In a criminal action, a court may conduct a trial, hearing, conference, or other proceeding by reliable electronic means, except as otherwise provided in subsection 4(b).

(b) Exceptions.

(1) A defendant may not be tried, plead guilty or be sentenced by reliable electronic means unless the parties consent and the court approves.

(2) Except when otherwise allowed by rule or law, a witness may not testify at trial by reliable electronic means unless the defendant knowingly and voluntarily waives the right to have the witness testify in person.

(3) An attorney for a defendant must be present at the site where the defendant is located unless the attorney's participation by reliable electronic means from another location is approved by the court with the consent of the defendant. The court must confirm on the record that the defendant has knowingly and voluntarily consented to the attorney's participation from a separate site and allow confidential attorney-client communication, if requested.

Section 5. Revocation of Probation Proceedings for Out of State Offenders.

(a) When a petition for revocation of probation has been issued for a probationer, a court may conduct the revocation of probation hearing by reliable electronic means. Before a court may conduct a revocation of probation hearing by reliable electronic means for a probationer, the court must:

(1) confirm on the record that the probationer has knowingly and voluntarily consented to a revocation of probation hearing by reliable electronic means;

(2) confirm on the record that the probationer has knowingly and voluntarily consented to the probationer's attorney's representation from a site separate from the probationer; and

(3) allow the probationer opportunity for confidential attorney-client communication.

(b) If the court orders probation be revoked, the court must state on the record whether the period of incarceration imposed fully or partially satisfies the sentence imposed by the district court.

Section 6. Mental Health Proceeding.

(a) In a mental health proceeding, a district court may conduct a proceeding by reliable electronic means and allow the following persons to appear or present testimony remotely:

(1) the respondent or patient;

(2) a witness;

(3) legal counsel for a party.

(b) Notice and Respondent's Rights.

(1) Notice. Before holding any mental health proceeding by reliable electronic means, the court must give notice to the petitioner and the respondent. The notice must:

(A) advise the parties of their right to object to the use of reliable electronic means;

(B) inform the respondent that the proceedings may be recorded on video and that, if there is an appeal, the video recording may be made part of the appendix on appeal and is part of the record on appeal.

(2) Respondent's Rights.

(A) The respondent or patient must be allowed to appear in person if requested. The respondent must be given the opportunity to consult with an attorney about the right to object to the use of reliable electronic means.

(B) If the respondent fails to make a request to appear in person or a timely objection to the use of reliable electronic means, the court may nevertheless continue the proceeding for good cause.

(C) If the proceeding is continued for any reason, the respondent will continue to be held at the facility where the respondent was receiving treatment or, at the choice of the treatment provider in a less restrictive setting, until the hearing can be completed.

(D) A requested in person appearance must be scheduled to occur within four days, exclusive of weekends and holidays, of the date the request was made, unless good cause is shown for holding it at a later time. The court retains discretion to allow any witness at the proceeding to appear by reliable electronic means. 

(3) Waiver. Upon mutual consent of the parties, and with the approval of the court, notice requirements in a mental health proceeding may be waived to allow for the conduct of proceedings without prior notice or with notice that does not conform to subsection 6(b)(1).