Joint Procedure Committee Meeting

Scheduled on Thursday, January 12, 1978 @ 1:00 PM

MINUTES OF MEETING

Joint Committee of the Judicial Council
and the State Bar Association
Joint Procedure Committee

January 12-13, 1978

CALL TO ORDER

The meeting was called to order at 1:00 p.m., January 12, 1978, by Justice Paul M. Sand, Chairman.

ATTENDANCE

Present:

Hon. Robert Vogel
Hon. Eugene A. Burdick
Hon. Larry Hatch
Hon. William S. Murray
Mr. David L. Peterson
Mr. Jon M. Arntson
Mr. Kent Higgins
Mr. Calvin N. Rolfson

Absent:

Hon. Gerald G. Glaser
Hon. James H. O'Keefe
Hon. Kirk Smith
Hon. R. C. Heinley
Hon. Halvor L. Halvorson
Mr. Harry Pearce
Mr. Leonard H. Bucklin
Mr. Larry Kraft
Mr. LeRoy A. Loder
Mr. Timothy Q. Davies

Staff Present:

Joel W. Gilbertson

Eveleen Klaudt

RULE 1, NDRAppP - Commentary

Judge Burdick MOVED to amend the proposed commentary to Rule 1, NDRAppP, as follows: Line 12, delete the words "just as" and insert "paralleling" and capitalize Federal Rules of Appellate Procedure. Mr. Higgins seconded the motion. Motion CARRIED.

Mr. Rolfson MOVED to adopt the proposed commentary to Rule 1, NDRAppP, as amended. Mr. Higgins seconded the motion. Motion CARRIED.

These rules, paralleling the Federal Rules of Appellate Procedure, are to be construed in light of a desire for "simplicity in procedure, fairness in administration, the just determination of litigation, and the elimination of unjustifiable expense and delay . . ." 28 U.S.C.§ 331.

The present authority for promulgation of procedural rules is § 87, North Dakota Constitution,

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and § 27-02-08 and § 27-02-09, N.D.C.C. Although most conflicting statutes are found in the Table of Superseded Statutes, it is clear that any existing or future conflicting rule or statute relating to appellate procedure is also superseded under the authority of § 27-02-09, N.D.C.C., and Rule 49(b).

Rule 1 is derived from Rule 1, Federal Rules of Appellate Procedure (F.R.App.P.), but is revised to cover the more limited sources of appeal to the North Dakota Supreme Court. Unlike some other state court adaptations, these rules are intended to cover both criminal and civil appeals. In taking the Federal Rules of Appellate Procedure as a model, it is contemplated that the federal practice and authority will apply to those rules which have substantially the same form as their federal counterpart. The rules follow the same numbering as the federal rules with omissions for rules, or subdivisions of rules, not appropriate for adoption.

RULE 2, NDRAppP - Commentary

Judge Burdick MOVED to delete the proposed amendments to Rule 2, NDRAppP. Judge Murray seconded the motion.

Mr. Higgins MOVED a substitute motion to delete all commentary to Rule 2. Motion LOST for lack of a second.

The question was on the motion of Judge Burdick. Motion CARRIED.

RULE 3, NDRAppP - Commentary

Judge Burdick MOVED to amend the proposed new language as follows: Line 3, delete "be filed with" and insert "accompany"; line 6, delete the word "asserts" and insert "provides." Mr. Higgins seconded the motion. Motion CARRIED.

Justice Vogel MOVED to delete the following from the commentary: "Nothing other than the filing of the notice of appeal in the trial court is required to perfect the appeal" and insert "Nothing other than the timely filing of the notice of appeal in the trial court is required to give the Supreme Court jurisdiction over the appeal."; and delete "For this one jurisdictional act". Judge Burdick seconded the motion. Motion CARRIED.

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Mr. Peterson MOVED to delete the following from the proposed language: "Although only the timely filing of the notice of appeal is required to perfect the appeal,". Mr. Higgins seconded the motion. Motion CARRIED.

Mr. Arntson MOVED to amend the commentary, line 8, to insert the word "after" so that it will read, "After the party files the notice,"; delete the word "and" in line 9. Mr. Higgins seconded the motion. Motion CARRIED.

Judge Burdick MOVED to amend the proposed language, line 3, by adding the words "filing of the" before the word "notice." Mr. Higgins seconded the motion. Motion CARRIED.

Judge Burdick MOVED to adopt the proposed commentary to Rule 3, NDRAppP, as amended. Mr. Higgins seconded the motion. Motion CARRIED.

The federal rules governing appeal as of right are adopted for general use because the appeals by permission contemplated by federal practice are absent from our appellate structure. Rule 3, F.R.App.P., is substantially adopted in this Rule. Nothing other than the timely filing of the notice of appeal in the trial court is required to give the Supreme Court jurisdiction over the appeal. After the party files the notice, the clerk mails copies to the clerk of the Supreme Court and to the opposing parties. For the service of other papers these rules place the responsibility of service on counsel rather than the clerk.

It should be noted that Rule 12(a) requires that the docket fee accompany the filing of the notice of appeal, and Rule 7 requires that a bond for costs or equivalent security be filed with the notice of appeal in civil cases.

Subdivision (a) provides that failure to follow any Rule may result in dismissal of the appeal, an award of costs, or other appropriate action. For a brief summary of many of the cases decided by the North Dakota Supreme Court on this subject, see Gerhardt v. Fleck, 251 N.W.2d 764, 766-767 (N.D. 1977).

RULE 7, NDRAppP - Commentary

Judge Burdick MOVED to amend the proposed commentary to Rule 7, NDRAppP, as follows: Line 6 of the proposed

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new language, delete "also be filed with" and insert "accompany the filing of"; that the next sentence read, "Thus in most civil cases the filing of the notice of appeal, the bond for costs or equivalent security, and payment of the docket fee must occur at the same time."; line 12 of the new language, delete "asserts" and insert "provides." Mr. Higgins seconded the motion. Motion CARRIED.

Judge Burdick MOVED to adopt the proposed commentary to Rule 7, NDRAppP, as amended. Mr. Rolfson seconded the motion. Motion CARRIED.

This Rule incorporates the bond for costs into the Appellate Rules rather than the statutes. The amount of the bond is the same under this adaptation of Rule 7, FRAppP, as under former § 28-27-09, North Dakota Century Code.

Unless the appellant falls within one of the listed exceptions, Rule 7 requires that a bond for costs or equivalent security be filed with the notice of appeal in civil cases. The Rule does not preclude the filing of a supersedeas bond and a bond for costs in the same bond. [See Rule 8.]

Rule 12(a) requires that the docket fee accompany the filing of the notice of appeal. Thus in most civil cases the filing of the notice of appeal, the bond for costs or equivalent security, or payment of the docket fee must occur at the same time.

Although filing the bond for costs or equivalent security is not "jurisdictional" and does not affect the validity of the appeal, Rule 3(a) provides that failure of the appellant to take this step is grounds for such action as the Supreme Court deems appropriate, which may include dismissal of the appeal. [See, e.g., Community Memorial Hospital v. Olson, 246 N.W.2d 91 (N.D. 1976).]

RULE 38, NDRAppP

Judge Burdick MOVED to reconsider Rule 38, NDRAppP. Justice Vogel seconded the motion. Motion CARRIED.

Judge Burdick MOVED to delete the words "shall determine" in the first line of the Rule, and insert the word "determines." Mr. Higgins seconded the motion. Motion CARRIED.

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Judge Burdick MOVED that Rule 38, NDRAppP, be adopted as amended. Mr. Higgins seconded the motion. Motion CARRIED.

RULE 38

DAMAGES FOR DELAY

If the court determines that an appeal is frivolous, or that any party has been dilatory in prosecuting the appeal, it may award just damages and single or double costs, including reasonable attorney's fees.

RULE 38, NDRAppP - Commentary

Judge Burdick MOVED to amend the proposed commentary to Rule 38, NDRAppP, as follows: Line 1, delete "taken, without substantial change," and insert "derived". Mr. Higgins seconded the motion. Motion CARRIED.

Mr. Higgins MOVED to amend the commentary to Rule 38, NDRAppP, in line 2 delete "this rule" and insert "the North Dakota rule". Justice Vogel seconded the motion. Motion CARRIED.

Judge Burdick MOVED to adopt the commentary to Rule 38, NDRAppP, as amended. Judge Murray seconded the motion. Motion CARRIED.

"This Rule is derived from Rule 38, F.R.App.P. It is clear under the North Dakota rule that damages may be assessed against any party to an appeal."

[Mr. Lamb arrived.]

RULE 11(d)(6), NDRCrimP - Commentary

Mr. Higgins MOVED that the following language be substituted for the proposed commentary to Rule 11(d)(6), NDRCrimP: "Comparable language for Section (d)(6) may be found in Rule 410 of the North Dakota Rules of Evidence." Motion LOST for lack of a second.

Judge Burdick MOVED to amend the proposed commentary to Rule 11(d)(6), NDRCrimP, as follows: Line 1, delete "makes it clear" and insert "provides"; line 2, delete "if" and insert "or"; line 3, delete the word "if". Mr. Peterson seconded the motion. Motion CARRIED.

Judge Burdick MOVED to amend the proposed commentary to Rule 11(d)(6) further, as follows: Line 7,

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delete "The only" and insert "An"; line 8, delete the word "is" and insert "arises." Mr. Peterson seconded the motion. Motion CARRIED.

Mr. Lamb MOVED to adopt the commentary to Rule 11(d)(6), NDRCrimP, as amended. Judge Burdick seconded the motion. Motion CARRIED.

Subsection (d)(6) provides that generally if a plea discussion does not result in a plea of guilty, or a plea is not accepted or is withdrawn, or a judgment on a plea of guilty is reversed on direct or collateral review, neither the plea discussion nor any resulting agreement, plea, or judgment is admissible against the defendant in any criminal or civil action or administrative proceeding. An exception to this general rule arises if the statements are voluntary, reliable, made under oath, on the record, in court, and in the presence of counsel. Even under these circumstances the exception applies only if the plea or offer is used for impeachment purposes or in a subsequent prosecution of the declarant for perjury or false statement [see Rule 410, N.D.R.Ev.]. The policy reason for the general rule is to encourage counsel to feel free to engage in plea discussions involving the defendant with the knowledge that plea-related statements may be used against the defendant only under very limited circumstances.

RULE 33, NDRCrimP

Mr. Higgins MOVED to reconsider Rule 33, NDRCrimP. Judge Burdick seconded the motion. Motion CARRIED.

Mr. Higgins MOVED to amend Rule 33(a), NDRCrimP, by striking the word "shall be in writing and" in the second line of the Rule. Judge Burdick seconded the motion. Motion CARRIED.

Judge Burdick MOVED to adopt Rule 33, NDRCrimP, as amended. Mr. Higgins seconded the motion. Motion CARRIED.

(a) Grounds for Motion.

The court on motion of a defendant may grant a new trial to him if required in the interests of justice. The motion for new trial shall point out with particularity the defects and errors complained of.

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RULE 33, NDRCrimP - Commentary

Mr. Lamb MOVED that the commentary to Rule 33, NDRCrimP, be amended as follows: Line 6 of the proposed commentary, delete the words "that a motion for a new trial be in writing," and line 8 delete the comma after the word "of"; line 33, delete the words "The Rule" and the comma and insert the words "The provision of" before "subdivision (b),"; line 51, delete "such a" and insert "the"; line 55 delete "adapted" and insert "derived." Mr. Higgins seconded the motion. Motion CARRIED.

Mr. Higgins MOVED that the following language be substituted for the language in lines 36 through 54: "That the requirements necessary to meet the test for a motion for a new trial under federal law are based on newly discovered evidence as discussed at 8A Moore's Federal Practice and Procedure (Cipes, 2d Ed. 1972), ¶ 33.03[l], at pages 33-12, 14." Mr. Lamb seconded the motion. Motion CARRIED 4-3, with 1 abstention.

Judge Murray MOVED to reconsider the previous motion. Judge Burdick seconded the motion. Motion CARRIED.

Judge Burdick MOVED to amend the commentary to Rule 33, NDRCrimP, by adding the following language in line 36: "Under the Federal Rules" and leaving the remaining language through line 54 as in the present commentary. Judge Murray seconded the motion. Motion CARRIED.

Judge Burdick MOVED to adopt the proposed commentary to Rule 33, as amended. Judge Hatch seconded the motion. Motion CARRIED.

Rule 33(a) is derived from Rule 33 of the Colorado Rules of Criminal Procedure and provides the court with the power to grant a new trial to a defendant if it determines that it is in the interest of justice to do so. This Rule differs from Rule 33 of the Federal Rules in that it requires that the motion point out with particularity the defects and errors complained of and that a motion based on newly discovered evidence or jury misconduct be supported by affidavits.

Under this Rule, the court has no power to order a new trial on its own motion, but may act only upon a timely motion made by the defendant. This provision is intended to

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avoid problems of double jeopardy. [United States v. Smith, 331 U.S. 469, 67 S.Ct. 1330, 91 L.Ed. 1610, rehearing denied, 332 U.S. 784, 68 S.Ct. 28, 92 L.Ed. 368 (1947).] It should be noted that this Rule does not affect the power of the court to declare a mistrial and order a new trial if such circumstances arise prior to verdict or finding of quilt as to warrant it.

A timely motion for a new trial suspends the running of the time to appeal from the judgment of conviction [see Rule 4(b), N.D.R.App.P., and Rule 37(b)]. An appeal may be taken within ten days after entry of the order denying the motion for a new trial [see Rule 4(b), N.D.R.App.P., and Rule 37(b)]. The appeal may then be taken from the judgment of conviction using the grounds raised in the motion for a new trial.

The provision of subdivision (b), which permits a motion for a new trial on grounds of newly discovered evidence, even though an appeal is pending (providing the case is remanded), is solely to expedite the proceedings. Under the Federal Rules essential requirements necessary to meet the test for a motion for a new trial based on newly discovered evidence are: (1) that the evidence must have been discovered since the trial [Johnson v. United States, 32 F.2d 127, 130 (8th Cir. 1929)]; (2) that failure to learn of the evidence at the time of trial was not the result of the defendant's lack of diligence [Nagell v. United States, 354 F.2d 441,446-449 (5th Cir. 1966)]; (3) that the newly discovered evidence is material to the issues at the trial [Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1, further consideration of motion to remand postponed to hearing on the merits, 352 U.S. 808, 77 S.Ct. 14, 1 L.Ed.2d 39; motion of the government to remand denied, judgment vacated and case remanded with instructions to grant the defendants a new trial, 352 U.S. 862, 77 S.Ct. 8, 1 L.Ed.2d 72 (1956)]; and (4) that the evidence is of such a nature that it would probably produce an acquittal in the event of retrial [8A Moore's Federal Practice and Procedure (Cipes, 2d Ed. 1972), ¶ 33.03[l], at pages 33-12, 14].

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Subdivisions (c) and (d)(1) are derived from Rule 26.04, Minnesota Rules of Criminal Procedure. The purpose of these subdivisions is to specify the materials to be used in submitting and hearing a motion for new trial. The motion is heard on the minutes of the court, the exhibits introduced at trial, and other matters on file. Affidavits are permitted to supply facts not otherwise shown as a part of the minutes. Minutes include the unofficial and untranscribed notes of the court reporter, notes of the clerk of court indicating which exhibits have been received, and the notes made by the trial judge during the course of the trial. The file includes all formal documents in the court file. The use of a complete or partial transcript of the proceedings is also permitted.

Subdivision (d)(2) embodies that part of former § 29-24-03, N.D.C.C., which provided that the court may compel an affiant who is a resident of this State to appear personally before the court and be cross-examined under oath on matters set forth in his affidavit. The pertinent provisions of Rule 17 are also applicable to subpoenas issued pursuant to this Rule.

RULE 35, NDRCrimP - Commentary

Mr. Higgins MOVED to amend lines 30 and 31 of the proposed commentary, delete "on written papers" and insert "in writing." Motion LOST for lack of a second.

Judge Burdick MOVED to amend lines 30 and 31 to read: "A motion for reduction of sentence must comply with Rule 47,". Mr. Arntson seconded the motion. Motion CARRIED.

Mr. Lamb MOVED to adopt the commentary to Rule 35, NDRCrimP, as amended. Judge Burdick seconded the motion. Motion CARRIED.

Rule 35 is derived from Rule 35, F.R.Crim.P. One modification in language is the addition of the word "sentencing" to modify court. This is intended to make perfectly clear that only the court which rendered judgment may correct an illegal sentence.

The Rule encompasses two forms of relief: reduction of sentence, and correction of a sentence either illegal in form or manner of imposition. In either instance: (1) it is presupposed that the conviction upon which the sentence has been imposed is valid; (2) the court is empowered

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to act on its own motion; and (3) the sentencing court is prohibited from acting during the pendency of the appeal through the United States Supreme Court.

This motion "is essentially a plea for leniency and presupposes a valid conviction." [Poole v. United States, 250 F.2d 396, 401 (D.C. Cir. 1957), and United States v. Ellenbogen, 390 F.2d 537, 543 (2d Cir. 1968), cert. den. 393 U.S. 918, 89 S.Ct. 241, 21 L.Ed.2d 206 (1938), rehearing denied, 399 U.S. 917, 90 S.Ct. 2187, 26 L.Ed.2d 576 (1970).] This plea for leniency is addressed to the discretion of the sentencing court, and may be granted if the court decides that the sentence originally imposed was, for any reason, unduly severe. [Wright, Federal Practice and Procedure: Criminal, § 586, p. 568 (1968).] Ordinarily a court is not required to hear testimony or arguments on a motion for reduction of sentence. This is discretionary with the district court. [Jacobsen v. United States, 260 F.2d 122 (8th Cir. 1958).] If the court does decide to reduce the sentence, the defendant need not be present nor need he be allowed to make a statement in his behalf before the reduced sentence is imposed. [Wright, supra, § 586, pp. 570-571.] A motion for reduction of sentence must comply with Rule 47, but in the case of pro se requests by prisoners, the court will entertain the request although contained in an informal letter from the prisoner to the sentencing judge. [8A Moore's Federal Practice, ¶ 35.02[1], p. 35-5 (Cipes, 2d. Ed. 1970).] An excessive sentence is void only as to the excess, and is to be corrected, not by absolute discharge of or new trial for the prisoner, but by an appropriate amendment to the invalid sentence by the court of original jurisdiction. [Wright, supra, § 582, p. 559.] A sentence by a court having jurisdiction of the person and the offense committing a person to an authorized penal institution but for a term in excess of what the law permits is not void as to the period of lawful imposition, but void only as to the excess beyond that which could have been lawfully imposed. [Waltman v. Austin, 142 N.W.2d 517, Syllabus ¶ 2 (N.D. 1966).]

It should be noted that the period is not defined as the time in which the motion may be made, but it is rather the time in which the court may act. Technically, this permits the

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court's failure to act upon a motion, to preclude relief. [8A Moore's, supra, # 35.02[2], pp. 35-5, and 35-6.]

It is not incumbent upon the trial court to state its reason for denying a motion for reduction of sentence. [Wright, Federal Practice and Procedure, § 586, p. 131 of the 1971 pocket part, citing United States v. Ursini, 296 F.Supp. 1152 (D.C. Conn. 1968).]

The clearest instance of illegality in a sentence is where the court imposes a sentence in excess of the maximum term authorized under the statute violated.

This Rule was amended in 1978 pursuant to the construction given it by the North Dakota Supreme Court in State v. Rueb, 249 N.W.2d 506 (N.D. 1976). The decision and the amendment require that notice of a motion for correction or reduction of sentence be given to the parties in accordance with Rule 49, whether the court acts on its own motion or a motion filed by a party. If the court grants relief under this Rule, it must give its reasons therefor in writing.

RULE 50(b), NDRCivP - Commentary

Judge Burdick MOVED to adopt the proposed commentary to Rule 50(b), NDRCivP. Mr. Peterson seconded the motion. Motion CARRIED.

2.Judgment Notwithstanding the Verdict.

It has long been the rule in North Dakota that a motion for judgment notwithstanding the verdict calls for a review of the trial court's ruling in denying a previous motion for directed verdict, and brings before the trial court, for the second time, questions raised by the original motion for a directed verdict. Hanson v. Fledderman, 111 N.W.2d 40 (N.D. 1961).

Under the Rules, it is only a party who has moved for a directed verdict who can later move to have judgment notwithstanding the verdict. Christensen v. Farmers State Bank of Richardton, 157 N.W.2d 352 (N.D. 1968). The philosophy that the trial court must have its opportunity before the jury goes out has not been changed by the amendments.

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A motion for judgment notwithstanding the verdict is actually merely a renewal of any previous motion for a directed verdict as to which the court has reserved decision. The standard for directed verdict or judgment notwithstanding the verdict is exactly the same, McKay v. Costigan, 179 F.2d 125 (7th Cir. 1950).

Despite the identity of standards for the trial court's action, it has been made clear in the federal courts that a denial of a motion for directed verdict is no bar to consideration of a motion for judgment notwithstanding the verdict. 5 Moore, Federal Practice, sec. 50.07. Thus if a trial court decides it erred in denying a motion for directed verdict, it can grant a motion for a judgment not-withstanding the verdict and find its final actions upheld by the appellate court.

The 1978 amendment to Rule 50(b) clarifies the basis of a motion for judgment notwithstanding the verdict. The language is derived from Rule 50.02, Minnesota Rules of Civil Procedure. Identical language was added to Rule 59(d).

Under the amended rule, a motion is heard on the minutes of the court, the exhibits introduced at the trial, and other matters on file. Affidavits may be used to supply facts not otherwise shown as a part of the minutes. Definitions of the "minutes" and the "file" are found in the Commentary to Rule 59(d). The motion may also be based on a complete or partial transcript of the trial.

The 1971 amendment added what is now the second to the last sentence in subdivision (b). This language simply conforms to the existing practice. It fills in the logical gap in the rule by stating what the courts have been doing anyway.

RULE 59, NDRCivP - Commentary

Justice Vogel MOVED to amend the proposed commentary to Rule 59, NDRCivP, as follows: Line 31, delete "adapted" and insert "derived"; line 35, delete "introduced" and insert "proferred". Mr. Higgins seconded the motion. Motion CARRIED.

Judge Burdick MOVED to adopt the commentary to Rule 59, NDRCivP, as amended. Mr. Lamb seconded the motion. Motion CARRIED.

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(1) Grounds for New Trial.

The causes set up by the Rules are the exclusive causes for a new trial. Mayer v. Robb, 138 N.W.2d 660 (N.D. 1965).

The list of grounds for a new trial in Rule 59(b) is not stated to be exhaustive. The Rules themselves have other provisions providing for a new trial. A new trial may be ordered for inconsistencies between a general verdict and special interrogatories accompanying the verdict. Rule 49(b). A new trial may be ordered for disability of the judge before whom the case was originally tried. Rule 63(a).

A motion for a new trial must state the grounds upon which relief is sought. It raises no issues other than the ones specified. Errors of law not specified in the motion for a new trial are waived. Mayer v. Robb, 138 N.W.2d 660 (N.D. 1965).

In passing on motion for a new trial, the court must keep in mind Rule 61 which states that errors which do not affect the substantial rights of the parties should be disregarded.

(2) 1971 Amendments.

Rule 59(i) regarding new trials granted on the initiative of the court was amended in 1971. The amendment was specifically aimed at the decision in Mayer v. Robb, 138 N.W.2d 660 (N.D. 1965). The Mayercase held that the former Rule 59 did not allow the trial court to grant a new trial on a just ground discovered by the court while a motion for a new trial was otherwise pending in the court. The present rule allows the court to make a just decision on a just ground while a motion is pending and with notice to the parties, even though the ground is not one that the parties themselves raised.

(3) 1978 Amendments.

The amendments to subdivision (d) are derived from Rule 59.02, Minnesota Rules of Civil Procedure, and clarify the basis of a motion for a new trial. Under the amended rule the motion is heard on the minutes of the court, the exhibits proffered, and other matters on file. Affidavits are permitted to supply facts not otherwise shown as a part of the minutes. Minutes include the unofficial and untranscribed notes of the court reporter, notes of the

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clerk of court indicating which exhibits have been received, and the notes made by the trial judge during the course of the trial. The file includes the pleadings, depositions on file, and other formal documents in the court file. Exhibits include the exhibits proffered at trial. The use of a complete or partial transcript of the proceedings is also permitted.

(4) Review of Trial Court.

Whether a new trial should be granted rests "almost entirely in the discretion of the trial court." Kresel v. Giese, 231 N.W.2d 780, 790 (N.D. 1975). The Supreme Court will reverse an order granting or denying a new trial only if a "manifest abuse of discretion" is shown. Cook v. Stenslie, 251 N.W.2d 393, 395 (N.D. 1977); Stee v. "L" Monte-Industries, Inc., 247 N.W.2d 641, 645 (N.D. 1976). The term "abuse of discretion" has been defined as meaning "an unreasonable, arbitrary, or unconscionable attitude upon the part of the court." Maier v. Holzer, 123 N.W.2d 29, 32 (N.D. 1963). In comparing the standards of review of the two orders, the Court has further stated that "a stronger showing is required to reverse the granting of a new trial than to reverse an order denying a motion for new trial." Cook v. Stenslie, 251 N.W.2d 393, 396 (N.D. 1977).

APPELLATE RULES - Generally

A discussion was had with Lu Dunn, Clerk of the Supreme Court, on the proposed amendments to the North Dakota Rules of Appellate Procedure.

RULE 10, NDRAppP

Judge Burdick MOVED to amend line 66 by deleting "except that" and inserting "but". Judge Murray seconded the motion.

Mr. Lamb MOVED a substitute motion to refer Rules 10 and 11, and any other applicable rules, to the Supreme Court Clerk and the Staff Attorney to make specific suggestions for amendment and adoption. Judge Hatch seconded the motion. Motion CARRIED.

RECESS

A recess was had to 9:00 a.m., January 13, 1978.

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The Joint Procedure Committee reconvened at 9:30 a.m., January 13, 1978, with Justice Paul M. Sand, Chairman, presiding.

ATTENDANCE

Present:

Hon. Robert Vogel

Hon. Eugene A. Burdick

Mr. Jon M. Arntson

Mr. Kent Higgins

RULE 10, NDRAppP

Judge Burdick MOVED that Rules 10, 11, and 31, NDRAppP, be reconsidered. Justice Vogel seconded the motion. Motion CARRIED.

Judge Burdick MOVED that the Committee adopt the concept that all time limits shall be keyed to the filing of the notice of appeal. Justice Vogel seconded the motion. Motion CARRIED.

[Mr. Lamb arrived]

Mr. Higgins MOVED that the time periods for each of the events in the perfection of the appeal turn on the notice of appeal or the completion of the next procedural step, whichever occurs first. Motion LOST for lack of a second.

Judge Burdick MOVED that the staff attorney re-draft Rules 10, 11 and 31, NDRAppP, keeping in mind the basic policy and retaining provisions for extensions and shortening of times, as well as we have them in our provisions in Rules 10 and 11. After this is done the committee should be circularized with the draft for quick comment, after which they shall be referred to a committee to be chosen by the chairman, consisting of members of the bar, court reporters, clerks of court, and other affected persons, for their comments. Mr. Arntson seconded the motion. Motion CARRIED.

RULE 28, NDRAppP

Judge Burdick MOVED to amend proposed Rule 28, NDRAppP, as follows: Line 73, delete "or parties"; delete "shall be" and insert "is"; after the word "deemed" insert the words "to be"; line 85, delete the word "such"; line 90, delete "except for good cause shown" and insert "unless excused by the court." Mr. Higgins seconded the motion. Motion CARRIED.

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Judge Burdick MOVED to adopt Rule 28, NDRAppP, as amended. Mr. Lamb seconded the motion. Motion CARRIED.

BRIEFS

(a) Brief of the Appellant. The brief of the appellant must contain under appropriate headings and in the following order:

(1) A table of contents, with page references, and a table of cases (alphabetically arranged), statutes, and other authorities cited, with references to the pages of the brief where they are cited.

(2) A statement of the issues presented for review.

(3) A statement of the case. The statement shall first indicate briefly the nature of the case, the course of the proceedings, and its disposition in the court below, There shall follow a statement of the facts relevant to the issues presented for review, with appropriate references to the record [subdivision (e)].

(4) An argument. The argument may be preceded by a summary. The argument shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes, and parts of the record relied on.

(5) A short conclusion stating the precise relief sought.

(b) Brief of the Appellee. The brief of the appellee shall conform to the requirements of subdivision (a) (l)-(4), except that a statement of the issues or of the case need not be made unless the appellee is dissatisfied with the statement of the appellant.

(c) Reply Brief. The appellant may file a brief in reply to the brief of the appellee. The reply brief must be confined to new matter raised in the brief of the appellee. Except as provided in subdivision (h), no further briefs may be filed without leave of the court.

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(d) References in Briefs to Parties. Counsel will be expected in their briefs and oral arguments to keep to a minimum references to parties by such designations as "appellant" and "appellee." It promotes clarity to use instead the designations used in the trial court or in the agency proceedings, or the actual names of parties, or descriptive terms such as "the employee," "the injured person," "the taxpayer," "the purchaser."

(e) References in Briefs to the Record. References in the briefs to parts of the record reproduced in the appendix filed with the brief of the appellant [see Rule 30(a)] shall be to the pages of the appendix at which those parts appear. If the record is reproduced in accordance with the provisions of Rule 30(f), or if references are made in the briefs to parts of the record not reproduced, the references shall be to the pages of the parts of the record involved; e.g., Answer p. 7, Motion for Judgment p. 2, Transcript p. 231. Intelligible abbreviations may be used. If reference is made to evidence the admissibility of which is in controversy, reference shall be made to the pages of the appendix or of the transcript at which the evidence was identified, offered, and received or rejected.

(f) Reproduction of Statutes, Rules, Regulations, etc. If determination of the issues presented requires the study of statutes, rules, regulations, etc., or relevant parts thereof, they shall be reproduced in the brief or in an addendum at the end, or they may be supplied to the court in pamphlet form.

(g) Length of Briefs. Except by permission of the court, principal briefs, whether typewritten or printed, must not exceed 50 pages, and reply briefs must not exceed 25 pages, exclusive of pages containing the table of contents, tables of citations, and any addendum containing statutes, rules, regulations, etc.

(h) Briefs in Cases Involving Cross-Appeals. If a cross-appeal is filed, the party first filing the notice of appeal is deemed to be the appellant for the purposes of this rule and Rules 30, 31, 32, and 34, unless the parties otherwise stipulate or the court otherwise orders. A cross-appellant shall file a single brief as appellee and cross-appellant at the time his brief as appellee is due. This brief must contain the issues and argument involved in his appeal as well as the answer to the brief of the appellant. The appellant's answer to the

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arguments on the cross-appeal shall be included in his reply brief, and the contents of his brief as cross-appellee shall be the same as in an appellee's brief, but without duplication of statements, arguments, or authorities already contained in the appellant's brief. To avoid duplication, references may be made to the appropriate portions of the appellant's brief. The cross-appellant may then file a reply brief confined strictly to reply to those arguments raised in the cross-appeal within 14 days after the due date of the appellant's reply brief, but, unless excused by the court, a reply brief must be filed at least 3 days before argument.

RULE 28, NDRAppP - Commentary

Mr. Higgins MOVED to delete the word "specificity" in line 12, and insert "not specifying more properly the content." Mr. Lamb seconded the motion. Motion LOST.

Judge Burdick MOVED to adopt the commentary to Rule 28, with the following proposed amendments: Line 1, delete "adapted" and insert "derived"; line 13, delete "or parties"; line 15, delete "are" and insert "is"; line 15 insert "to be" after "deemed." Mr. Arntson seconded the motion. Motion CARRIED.

This rule is derived from Rule 28, F.R.App.P. The major change from previous practice is the elimination of reference to the assignment of errors. Section 28-18-09, N.D.C.C., which required a specification of errors in appeals, has been superseded. With the elimination of the assignment of errors, the correct statement of the legal issues is doubly important. Each legal issue should be stated as a question of law sufficiently specific to allow the court to understand the precise issue presented. Generalized statements such as, "Is the verdict supported by the evidence?", are not sufficient.

Subdivision (h) specifically relates to cross-appeals. It differs from the Federal Rule in specificity of the contents of the briefs and in the statement that the party first filing the notice of appeal, not the plaintiff in the trial court, is deemed to be the appellant, unless otherwise stipulated or ordered.

If a cross-appeal is filed, reference should be made to Rule 30(b), which requires the cross-appellant to designate the issues he intends to present for review.

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RULE 30, NDRAppP

Mr. Higgins MOVED to amend proposed Rule 30, NDRAppP, as follows: Line 2, delete "agree as to" and insert "stipulate"; line 3, delete "agreement" and insert "stipulate"; line 3, delete "agreement" and insert "stipulation"; line 21, delete "agree" and insert "stipulate." Mr. Lamb seconded the motion. Motion CARRIED.

[Mr. Rolfson arrived.]

Mr. Lamb MOVED to reconsider the amendments to proposed Rule 30, NDRAppP. Judge Burdick seconded the motion. Motion CARRIED.

Mr. Lamb MOVED to amend proposed Rule 30, NDRAppP, as follows: Line 3, before the word "agreement" insert "written." Mr. Higgins seconded the motion. Motion CARRIED.

Judge Burdick MOVED to amend Rule 30, NDRAppP, as follows: Line 6, delete the word "which"; line 7, delete the word "which"; line 26, delete "such" and insert "those"; line 30, delete the word "such" and insert "those." Mr. Higgins seconded the motion. Motion CARRIED.

Mr. Lamb MOVED to adopt Rule 30, NDRAppP, as amended. Mr. Higgins seconded the motion. Motion CARRIED.

APPENDIX TO THE BRIEFS

(b) Determination of Contents of Appendix; Cost of Producing. The parties are encouraged to agree as to the contents of the appendix. In the absence of written agreement, the appellant shall serve on the appellee not later than ten days after the date on which the transcript is filed, a designation of the parts of the record he intends to include in the appendix and a statement of the issues he intends to present for review. If the appellee deems it necessary to direct the particular attention of the court to parts of the record not designated by the appellant he shall serve upon the appellant, within 10 days after receipt of the designation, a designation of those parts. If a cross-appeal is filed, the appellee shall serve upon the appellant, within this time period, a statement of the issues he intends to present in the cross-appeal. The appellant shall include in the appendix the parts thus designated. In designating parts of the record for inclusion in the appendix, the parties shall have regard for the fact that the entire record is always available to the court for reference and examination

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and shall not engage in unnecessary designation.

Unless the parties otherwise agree, the cost of producing the appendix shall initially be paid by the appellant, but if the appellant considers that parts of the record designated by the appellee for inclusion are unnecessary for the determination of the issues presented he may so advise the appellee and the appellee shall advance the cost of including those parts. The cost of producing the appendix shall be taxed as costs in the case, but if either party shall cause matters to be included in the appendix unnecessarily, the court may impose the costs of producing those parts on the party.

RULE 30, NDRAppP - Commentary

Mr. Higgins MOVED to amend the proposed commentary to Rule 30, NDRAppP, as follows: Line 4, after the period, add "Eight copies of." Mr. Rolfson seconded the motion. Motion CARRIED.

Judge Burdick MOVED to adopt the commentary to Rule 30, NDRAppP, as amended. Mr. Lamb seconded the motion. Motion CARRIED.

This Rule is derived from Rule 30, F.R.App.P. It adopts the federal system of an appendix to the brief which contains the essential evidence relating to the appeal, including the alternate system of deferred filing of the appendix. Eight copies of the appendix must be separately bound with a white cover [see Rule 32].

If the parties cannot agree as to the contents of the appendix, the appellant must serve a statement of the issues he intends to present for review as well as parts of the record he intends to include in the appendix. If a cross-appeal is filed, the appellee must also serve a designation of the issues he intends to present for review.

[Mr. Peterson and Judge Hatch arrived.]

Mr. Rolfson MOVED to place Rule 4, Rules of Court for the District Courts, with reference to size of paper, on the agenda for the next meeting. Mr. Peterson seconded the motion. Motion CARRIED.

RULE 32, NDRAppP

Mr. Higgins MOVED to amend Rule 32, NDRAppP, as follows: After line 57 add, "Carbon copies of the transcript are

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permissible." Mr. Peterson seconded the motion. Motion LOST.

Mr. Rolfson MOVED to amend Rule 32, NDRAppP, as follows: Line 5, delete "which" and insert "that"; line 30, delete "motions" and insert "petitions"; delete "in volumes" and insert "separately"; line 35, delete "should" and insert "must"; line 37, delete "shall" and insert "must." Justice Vogel seconded the motion. Motion CARRIED.

Judge Burdick MOVED to adopt Rule 32, NDRAppP, as amended. Mr. Rolfson seconded the motion. Motion CARRIED.

FORM OF BRIEFS,

THE APPENDIX AND OTHER PAPERS

All papers filed in the supreme court must be typewritten, printed, or reproduced by a process that produces a clear black image on white paper. Typewritten pages must not exceed 8 ½ by 11 inches, contain typed matter not exceeding 6 ½ by 9 ½ inches, and must be double-spaced. The type must be of pica size or larger. Printed pages must not exceed 6 1/8 x 9 1/4 inches, contain printed matter not exceeding 4 1/6 by 7 1/6 inches, and must appear in at least 11-point type on opaque, unglazed paper. Carbon copies of any paper may not be submitted without permission of the court. All pages should be numbered at the bottom. Copies of the reporter's transcript and other papers reproduced in a manner authorized by this rule may be inserted in the appendix; the pages may be informally renumbered if necessary.

Briefs, appendices and petitions for rehearing must be bound separately. The cover of the brief of the appellant must be blue; that of the appellee and cross-appellant, red; that of an intervenor or amicus curiae, green; that of the cross-appellee and any reply brief, gray. The cover of the appendix must be white. The front cover of the briefs, appendices, and petitions for rehearing must contain: (1) the name of the court and the number of the case; (2) the title of the case [see Rule 12(a)]; (3) the nature of the proceeding in the court (e.g., Appeal), and the name of the court, agency, or board below; (4) the title of the document (e.g., Brief for Appellant, Appendix); and (5) the names and addresses of counsel representing the party on whose behalf the document is filed.

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All other papers addressed to the court must contain a caption setting forth the name of the court, the title of the case, the file number, and a brief descriptive title indicating the purpose of the paper. Consecutive sheets must be attached at the left margin.

RECESS to 1:00 p.m.

The Joint Procedure Committee reconvened at 1:00 p.m., January 13, 1978, with Justice Paul M. Sand, Chairman, presiding.

Present:

Justice Vogel
Judge Burdick
Judge Hatch
Mr. Higgins
Mr. Lamb
Mr. Peterson

RULE 32, NDRAppP - Commentary

Mr. Peterson MOVED to adopt the commentary to Rule 32, NDRAppP, with the following style changes: Line 1, delete "based on" and insert "derived from"; line 10, delete "which" and insert "that"; line ll, delete "which" and insert "that." Judge Burdick seconded the motion. Motion CARRIED.

This Rule is derived from Rule 32, F.R.App.P. The use of typewritten documents is specifically approved. The requirement of using printed briefs and appendices is omitted, though it is encouraged where the documents are extensive. Only carbon copies are specifically prohibited because of their tendency to smudge and their poor legibility when many copies are required. The Rule permits use of any other process that produces a clean readable page. Most modern copying processes that produce good and permanent copies should be acceptable. Those in which the copy deteriorates or becomes less legible at a substantially faster rate than ordinary typed copy would not be approved.

RULE 34, NDRAppP

Justice Vogel MOVED to amend Rule 34, NDRAppP, as follows: Line 3, after the period, add "Unless otherwise ordered". Judge Burdick seconded the motion. Motion CARRIED.

Judge Burdick MOVED to amend Rule 34, NDRAppP, as follows: Line 2, delete "must" and insert "will." Mr.

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Higgins seconded the motion. Motion CARRIED.

Judge Burdick MOVED to adopt Rule 34(b), NDRAppP, as amended. Mr. Higgins seconded the motion. Motion CARRIED.

ORAL ARGUMENT

(b)Time Allowed for Argument. Argument on motions will be limited to 15 minutes for each side regardless of the number of counsel on each side. Unless otherwise ordered, in all other argument the appellant will be allowed 45 minutes and the appellee will be allowed 30 minutes. Additional time may be granted by the supreme court upon written request addressed to the clerk reasonably in advance of the date fixed for the argument. A party is not obliged to use all of the time allowed, and the court may terminate the argument whenever in its judgment further argument is unnecessary.

RULE 34, NDRAppP - Commentary

Mr. Lamb MOVED to amend the commentary to Rule 34, NDRAppP, as follows: Line 6, delete "liberally"; strike "any" and insert "a." Mr. Higgins seconded the motion. Motion CARRIED.

Mr. Rolfson MOVED to amend the commentary to Rule 34, NDRAppP, as follows: Delete lines 10 through 13, and insert the following language, "The omission of subdivision (g) of the Federal Rule is not intended to prevent the use of any exhibits at oral argument." Mr. Lamb seconded the motion. Motion CARRIED.

Mr. Rolfson MOVED to adopt the commentary to Rule 34, NDRAppP, as amended. Mr. Peterson seconded the motion. Motion CARRIED.

This Rule is derived from Rule 34, F.R.App.P. The time allowed for the appellant under the Federal Rule is extended from 30 minutes to 45 minutes because of his burden in presenting the initial statement of the facts and the case. Argument on motions is limited to 15 minutes on each side. It is contemplated these periods will be extended upon a showing of good cause. In the case of multiple appellants or appellees it is contemplated that each side must divide the time accorded, unless additional time has been requested and granted. The omission of subdivision (g) of the Federal Rule is not intended to prevent the use of any exhibits at oral argument.

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RULE 35, NDRAppP

Judge Burdick MOVED to amend Rule 35(c) as follows: "Upon an appeal from a verdict or judgment or an appealable order, the supreme court may review any intermediate order or ruling involving the merits or affecting the verdict, judgment, or order adversely to the appellant." Mr. Rolfson seconded the motion.

Mr. Peterson MOVED a substitute motion to delay consideration of this Rule to the next meeting. Mr. Higgins seconded the motion.

The question was on the substitute motion of Mr. Peterson to delay consideration of this Rule to the next meeting. Motion LOST.

The question was on the motion of Judge Burdick to amend Rule 35(c). The motion LOST for lack of a majority.

Mr. Lamb MOVED that we defer action on Rule 35 to the next meeting. Judge Burdick seconded the motion. Motion CARRIED.

RULE 45, NDRAppP

Judge Burdick MOVED to amend proposed Rule 45, NDRAppP, as follows: Line 10, delete the words "Unless specifically required by these rules,". Mr. Rolfson seconded the motion. Motion CARRIED.

Judge Burdick MOVED to adopt Rule 45, NDRAppP, as amended. Mr. Rolfson seconded the motion. Motion CARRIED.

DUTIES OF CLERK

(a) General Provisions. The clerk of the supreme court shall take the oath and give the bond required by law. Neither the clerk nor any deputy clerk shall practice as an attorney or as counsel in any court while he continues in office. The supreme court shall be deemed always open for the purpose of filing any proper paper, of issuing and returning process, and of making motions and orders. The office of the clerk, with the clerk or a deputy in attendance, shall be open during business hours on all days except Saturdays, Sundays, and legal holidays. The clerk is under no obligation to give notice to the parties of time deadlines.

RULE 45, NDRAppP - Commentary

Mr. Higgins MOVED to amend the commentary to Rule 45, NDRAppP, as follows: Line 13, delete the word "beginning"

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and insert "at least"; and to adopt the commentary as amended. Judge Burdick seconded the motion. Motion CARRIED.

This rule is derived from Rule 45, F.R.App.P. The last sentence in subdivision (a) has been added, and is also found in Rule 31(a). It asserts that the clerk of the Supreme Court has no obligation to notify counsel of approaching deadlines. Conversely, neither counsel nor parties have the right to require or rely on notification from the clerk. Gerhardt v. Fleck, 251 N.W.2d 764, 766 (N.D. 1977).

As noted in the rule, the clerk prepares the court calendar under the direction of the Supreme Court. Presently, a case is assigned to the next court term at least 17 days after the brief of the appellee or cross-appellee is filed. For example, if an appellee's brief is filed on March 25, the case will be heard in the May term of court.

RULE 4, NDRAppP

[Mr. Rolfson left.]

Judge Burdick MOVED to amend Rule 4, NDRAppP, as follows: Line 3, delete "of the date of the" and insert "after"; and add the following language, "the entry of a judgment appealed from or within 90 days of"; line 5, delete "of the date of" and insert "after"; line 7, delete "of the date on which" and insert "after". Mr. Higgins seconded the motion.

Mr. Lamb MOVED a substitute motion to defer action until after the next legislative session. Mr. Peterson seconded the motion. Motion CARRIED. Judge Burdick wished to be recorded as voting against the motion.

NEXT MEETING

Judge Burdick MOVED that the next meeting of the Joint Procedure Committee be held on March 16 and 17, 1978, beginning at 1:00 p.m. on March 16. Mr. Peterson seconded the motion. Motion CARRIED.

LETTER FROM LEGISLATIVE COUNCIL

Justice Vogel MOVED that we accept responsibility for drafting Rules covering deleted sections. Mr. Lamb seconded the motion. Motion CARRIED.

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Mr. Lamb, Mr. Arntson, and Judge Hatch left.]

Section 28-27-02.1, NDCC

Mr. Peterson MOVED that the commentary to Rule 49(b), NDRAppP, show § 28-27-02.1, NDCC, as superseded. Judge Burdick seconded the motion. Motion CARRIED.

Section 28-31-01, NDCC

Mr. Peterson MOVED that the commentary to Rule 12, NDRAppP, show § 28-31-01, NDCC, as superseded. Judge Burdick seconded the motion. Motion CARRIED.

Section 28-31-02, NDCC

Mr. Peterson MOVED that the commentary to Rule 45, NDRAppP, show § 28-31-02, NDCC, as superseded. Judge Burdick seconded the motion. Motion CARRIED.

Section 28-31-11, NDCC

Revised Rule 39(f) is to include the substance of § 28-31-11, and be presented at the next meeting.

Section 29-23-01, NDCC

Mr. Peterson MOVED that the commentaries to Rules 10 and 28, NDRAppP, show § 29-23-01, NDCC, as superseded. Judge Burdick seconded the motion. Motion CARRIED.

Section 29-23-02, NDCC

Mr. Peterson MOVED that the commentaries to Rules 10 and 28, NDRAppP, show § 29-23-02, NDCC, as superseded. Judge Burdick seconded the motion. Motion CARRIED.

Section 29-23-03, NDCC

Mr. Peterson MOVED that the commentaries to Rules 10 and 28, NDRAppP, show § 29-23-03, NDCC, as superseded. Judge Burdick seconded the motion. Motion CARRIED.

Section 29-23-04, NDCC

Mr. Peterson MOVED that the commentaries to Rules 10 and 28, NDRAppP, show § 29-23-04, NDCC, as superseded. Judge Burdick seconded the motion. Motion CARRIED.

Section 29-23-08, NDCC

Mr. Peterson MOVED that the commentaries to Rules 10 and 28, NDRAppP, show § 29-23-08, NDCC, as superseded. Judge Burdick seconded the motion. Motion CARRIED.

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Section 29-23-09, NDCC

Mr. Peterson MOVED that the commentaries to Rules 10 and 28, NDRAppP, show § 29-23-09, NDCC, as superseded. Judge Burdick seconded the motion. Motion CARRIED.

Section 28-27-27, NDCC

Mr. Peterson MOVED that the commentary to Rule 59, NDRCivP, show § 28-27-27, NDCC, as superseded. Judge Burdick seconded the motion. Motion CARRIED.

Section 28-27-29.1, NDCC

Mr. Peterson MOVED that the commentaries to Rules 50 and 59, NDRCivP, show § 28-27-29.1, NDCC, as considered. Judge Burdick seconded the motion. Motion CARRIED.

ADJOURNMENT

Judge Burdick MOVED that the meeting be adjourned. Mr. Peterson seconded the motion. Motion CARRIED.

_________________________
Secretary