Joint Procedure Committee Meeting
Scheduled on Thursday, January 14, 1982 @ 9:20 AM
MINUTES OF MEETING
Joint Procedure Committee
January 14-15, 1982
CALL TO ORDER
The meeting was called to order at 9:20 a.m., January 14, 1982, by Justice Paul M. Sand, Chairman.
ATTENDANCE
Present
Hon. Eugene A. Burdick
Hon. Gerald G. Glaser
Hon. Frank J. Kosanda
Hon. Lawrence A. LeClerc
Hon. William S. Murray
Hon. James H. O'Keefe
Hon. Kirk Smith
Mr. Leonard H. Bucklin
Mr. Herbert L. Meschke
Mr. David L. Peterson
Absent
Hon. Robert C. Heinley
Hon. Robert Vogel
Mr. William A. Hill
Mr. Ward M. Kirby
Mr. Larry Kraft
Mr. James L. Lamb
Mr. LeRoy A. Loder
Mr. Richard A. McKennett
Mr. Russell G. Nerison
APPROVAL OF MINUTES
Judge Burdick MOVED that the Minutes be approved as submitted. Judge Kosanda seconded the motion. Motion CARRIED.
LOCAL RULES QUESTIONNAIRE
Judge LeClerc introduced Mr. Mark Hinnen, Court Administrator for the East Central Judicial District, Mr. John Dietz, Domestic Relations Referee for that District, and Mr. David R. Bossart, a Fargo attorney. Each of these gentlemen discussed at length the manner in which motions and ex parte orders are handled in the district court in Fargo, and answered the questions asked by the committee members.
Judge Burdick suggested that the Court Administrator for the South Central Judicial District and the Clerk of Court of Burleigh County be asked to come before the committee to discuss their method of handling motions Judge Glaser was asked to make the arrangements for their appearance.
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RECESS
Mr. Bucklin MOVED to recess to 1:00 p.m. Judge Burdick seconded the motion. Motion CARRIED.
CALL TO ORDER
The meeting was called to order at 1:00 p.m. by Justice Paul M. Sand, Chairman.
ATTENDANCE
The attendace at the afternoon session was the same as the morning session.
LOCAL RULES QUESTIONNAIRE
Mr. D.J. Hanson, Court Administrator of the South Central Judicial District, and Burleigh County Clerk of Court, Marian Barbie, appeared before the committee and related the method used in Burleigh County for handling motions, and answered questions put to them by committee members.
Mr. Peterson MOVED that this committee recommend to the Supreme Court that the local rule on motion practice, as adopted by the Fargo district, not be enacted or adopted as a statewide rule, that it be rejected, and that the district be prohibited from continuing to use the local rules for the reasons that the local is inconsistent with the statewide Rule 3.2, NDROC; that no necessity for a separate local rule has been demonstrated; and that Cass County has not tried to implement NDROC 3.2. Judge Burdick seconded the motion. Motion CARRIED.
Judge Murray voted No "because I do agree with that portion of the motion which says it should not be a statewide rule, but after careful reflecting and hearing it does not bother me if Cass County has a different rule. This represents a very substantial portion of our Bar. I know we should have statewide rules, but--"
EX PARTE ORDERS IN DOMESTIC RELATIONS CASES (NDROC 8.2)
Judge Burdick MOVED to amend Rule 8.2, North Dakota Rules of Court, to read: "An ex parte interim order will not be issued unless the movant executes an affidavit setting forth specific facts relied on by the party sufficient to justify the issuance of the order. Unless excused
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by the court for good cause shown, a restraining and eviction order will not be issued ex parte unless the movant also appears personally." Judge LeClerc seconded the motion. Motion CARRIED.
DOMESTIC RELATIONS
(a) Interim Support Schedule - Ex Parte Order. Upon motion, an ex parte interim order of support may be issued by any district judge within a judicial district. The interim order, in addition to ordering support payments, may direct inter alia a party to continue to pay any monthly payments for rent, house payments, medical and hospitalization insurance premiums, telephone service charge, utility bills (gas, sewer, water, electricity), as they become due. In the event support is ordered, a current mailing address must be listed for both parties.
(b) Financial Statement to be Filed. A motion for temporary support, custody, and attorney's fees must have attached thereto an itemized financial statement prepared as shown in Appendix A.
(c) An ex parte interim order will not be issued unless the movant executes an affidavit setting forth specific facts relied on by the party sufficient to justify the issuance of the order. Unless excused by the court for good cause shown, a restraining and eviction order will not be issued ex parte unless the movant also appears personally.
(d) Custody - Visitation. Temporary custody of minor children may be granted, in which case the order must provide for reasonable visitation rights of the spouse, unless the affidavit accompanying the motion sets forth sufficient facts to establish that visitation should be restricted to certain times and places or prohibited.
(e) Payments to Clerk. The interim order must provide:
(1) All support payments, attorney's fees, and costs, must be paid to and through the clerk of the district court, either by cash, certified check, or money order, made payable to the clerk of court;
(2) Personal checks may not be accepted.
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(f) Attorney's Fees and Costs. As a general rule, partial payments of attorney's fees and costs will be ordered if the financial statement sets forth facts establishing that the party has insufficient personal income or funds with which to pay attorney's fees and costs.
(g) Right to Hearing - Form of Interim Order. The interim order must provide specifically:
(1) That the party to whom the order is directed, upon written motion, may have a hearing upon the necessity for the issuance of the order or the amounts to be paid; and
(2) That unless the motion is served or filed in the office of the clerk of the district court within 5 days after service of the interim order, the order becomes final and is nonappealable, pending a final determination of the issues raised by the pleadings or until further order of the court in the event of a material change of circumstances.
(h) Financial Statement. If a motion objecting to the interim order is filed, there must also be filed at least one day before the hearing on the motion a financial statement prepared as shown in Appendix A.
Judge Glaser MOVED that this committee recommend to the Supreme Court that the Cass county rule on ex parte orders for interim relief in domestic relations cases be rejected as being inconsistent with Rule 8.2, NDROC. Mr. Meschke seconded the motion. Motion CARRIED.
RECESS
The committee recessed to 3:00 p.m.
CALL TO ORDER
The meeting was called to order at 3:00 p.m. by Justice Paul M. Sand, Chairman.
DISCOVERY ABUSE
Judge Smith MOVED that we approve the substance of proposed amendments to Rule 26, Federal Rules of Civil Procedure, but defer drafting a rule for this State until the federal committee has finished its work. Judge LeClerc seconded the motion.
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Judge Burdick MOVED a substitute motion. Recognizing that we have taken note of the fact that abuse exists in the discovery process under our rules, we need to establish standards for the conduct of attorneys under Rule 26(g) and to express the need for the courts to impose appropriate sanctions and require judges to use those sanctions; and recognizing that the matter is presently under consideration by the Federal Judicial Conference of the United States, and that the committee on Rules of Practice and Procedure have drafted some proposed amendments to Rule 26, we defer action on a draft of proposed amendments until the federal rules have been promulgated, or they have had a reasonable opportunity to do so. Mr. Lamb seconded the motion. Motion LOST.
The question was on the motion of Judge Smith, which motion CARRIED.
NEXT MEETING
Judge Burdick MOVED that the next meeting of the Joint Procedure Committee be held on April 15, 1982, commencing at 9:00 a.m., and continuing to 2:00 p.m. on April 16, unless otherwise ordered by the Chairman. Judge Kosanda seconded the motion. Motion CARRIED.
RECESS
The meeting recessed to 9:00 a.m. on January 15, 1982.
CALL TO ORDER
The meeting was called to order at 9:25 a.m. by Justice Paul M. Sand, Chairman.
ATTENDANCE
Present
Hon. Frank J. Kosanda
Hon. Lawrence A. LeClerc
Hon. William S. Murray
Hon. James H. O'Keefe
Hon. Kirk Smith
Mr. James L. Lamb
Herbert L. Meschke
David L. Peterson
RULE 16, NDRCrimP - Explanatory Note
Judge Kosanda MOVED that the explanatory note to Rule 16, North Dakota Rules of Criminal Procedure, be revised to fit in with the amendments made to the rule, but that the actual revision be delayed to the next meeting and that the staff attorney prepare a proposed revision. Judge Smith seconded the motion. Motion CARRIED.
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RULE 502, NDREv
Judge LeClerc MOVED that no action be taken to amend Rule 502, North Dakota Rules of Evidence. Judge O'Keefe seconded the motion. Motion CARRIED.
RULE 3.1, NDROC
Judge O'Keefe MOVED we not adopt any exceptions for probate papers, as suggested by Judge Cooke. Judge LeClerc seconded the motion. Motion CARRIED.
The staff attorney was instructed to inform Judge Cooke of the committee's disposition of his request.
DISCUSSION ON RULES AT JUDICIAL COUNCIL MEETING
Judge O'Keefe MOVED that the Committee Chairman, and the staff counsel, propose to the Judicial Council Committee chaired by Judge Medd, that the next meeting of the Judicial Council devote some program time to a discussion of the new Rules of Court. Mr. Lamb seconded the motion. Motion CARRIED.
ADJOURNMENT
Judge Kosanda MOVED to adjourn. Judge Smith seconded the motion. Motion CARRIED.
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Secretary