Joint Procedure Committee Meeting

Scheduled on Thursday, January 25, 1996 @ 9:00 AM

MINUTES OF MEETING

Joint Procedure Committee

January 25-26, 1996

TABLE OF CONTENTS

Rule 8.3, NDROC - Case Management (Divorce Cases) 3
Appendix C. Rule 8.3, NDROC - Information Statement 4
Appendix D. Rule 8.3, NDROC - Pretrial Conference Statement 4
Appendix E. Rule 8.3, NDROC - Property and Debt Listing 6
Rule 34, N.D.R.Civ.P. - Production of Documents 6
Rules 54 § 58, N.D.R.Civ.P., Rule 4, N.D.R.App.P. -
Procedure for Claiming Attorneys' Fees 7
Rule 1.1 and 3.2, NDROC - Applicability of Rule 3.2 10
Rule 3.2, NDROC - Reply Briefs 11
Rule 3.2, NDROC - Requirement for Briefs 12
Retirement of Justice Levine 13
Rule 6, N.D.R.Civ.P.- Time 13
Rule 12, N.D.R.Civ.P. - Motions for Judgment on the Pleadings 17
Rule 27, N.D.R.Civ.P. - Depositions Before Action 17
Rule 55, N.D.R.Civ.P. - Default 18
Rule 59 N.D.R.Civ.P. - New Trials-Amendment of Judgments 19
Rule 17.1, N.D.R.Crim.P. - Omnibus Hearing 19
Rule 45, N.D.R.Civ.P. - Subpoena 20
Rule 11.1, N.D.R.Crim.P. - Suspended Prosecution 20
Rule 8, N.D.R.Civ.P. - General Rules of Pleading 21
Rule 16, N.D.R.Crim.P.- Discovery and Inspection 22
Rule 56, N.D.R.Civ.P. - Summary Judgment 23
Rule 80, N.D.R.Civ.P. - Transcript as Evidence 23

CALL TO ORDER

The meeting was called to order at approximately 9:00 a.m., January 25, 1996, by Justice Beryl J. Levine, Chairperson.

ATTENDANCE

Present:

Justice Beryl J. Levine
Honorable Bruce E. Bohlman (1/26/96 only)
Honorable Donovan Foughty
Honorable Ronald L. Hilden
Honorable Maurice R. Hunke (1/25/96 only)
Honorable Lawrence A. Leclerc
Honorable Kirk Smith
Honorable James A. Wright
Mr. Robert C. Heinley


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Mr. Michael R. Hoffman
Mr. John C. Kapsner
Professor Larry Kraft
Ronald H. McLean
Ms. Sherry Mills Moore (1/25/96 only)
Mr. James T. Odegard (1/25/96 p.m. only)
Ms. Cathy Howe Schmitz

Absent:

Honorable Wallace D. Berning
Honorable Gail Hagerty
Ms. Patricia R. Ellingson
Mr. James L. Lamb

Staff:

Mr. Gerhard Raedeke

PRELIMINARY MATTERS

Meetings are scheduled for April 25-26, 1996; September 26-27, 1996; January 30-31, 1997; and April 24-25, 1997.

The Committee extended a warm welcome to Judge Donovan Foughty, the newest member of the Committee.

The history of the Committee was reviewed. The Committee dates back to the Joint Committee of the Judicial Council and State Bar Association on the Rules of Criminal Procedure, which was formed in 1967. Gradually the jurisdiction of the Joint Committee of the Judicial Council and State Bar Association expanded and the Committee began using the subtitle "Joint Procedure Committee." In 1980, the title "Joint Committee of the Judicial Council and State Bar Association" was dropped. Since then, the Committee has gone solely by the title "Joint Procedure Committee."

APPROVAL OF MINUTES (PAGES 1-19 OF THE AGENDA MATERIAL).

Ms. Schmitz MOVED the minutes from the September 28-29, 1995, meeting be approved as submitted. Judge Wright seconded. Motion CARRIED.

AMENDMENTS PROPOSED IN 1995 FOR ADOPTION BY THE SUPREME COURT (PAGES 20-24 OF THE AGENDA MATERIAL).

Staff reviewed the action taken by the Supreme Court regarding the amendments proposed in 1995 by the Committee. The Committee was advised as to the amendment made to Rule 8, North Dakota Rule on Procedural Rules. The amendment provides that a


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member of the Committee who retires is not eligible for reappointment.

RULE 8.3, NDROC - CASE MANAGEMENT (DIVORCE CASES) (PAGES 25-28 OF THE AGENDA MATERIAL).

At the last meeting, the Committee amended Rule 8.3 to provide for a preliminary and final Rule 8.3 statement, instead of a pretrial conference statement and a property and debt listing. The intent was that the option of combining the pretrial conference statement, Appendix Form D and the property and debt listing, Appendix Form E, should be explored, so the same form could be used for the preliminary and final Rule 8.3 statement.

Since the last meeting, Judge Leclerc and Maureen Holman have explored the option of combining Appendix Form D and E. Their conclusion is that Appendix Form D and E should not be combined because Appendix D contains to much information not needed in Appendix Form E. If the forms are combined, Appendix Form E would become unusable as a property and debt listing at trial.

Judge Hunke MOVED to adopt Proposed Rule 8.3 on pages 26-28, but to delete the phrases "in order to complete the case" on lines 17-18 and "in the case" on line 20. The proposal provides for a pretrial conference statement and a property and debt listing, rather than a combined form filed as a preliminary and final Rule 8.3 statement. Mr. Kapsner seconded. Motion CARRIED.

Other Committee members questioned what the phrase "additional information" on line 17 pertains to if the phrase "in order to complete the case" is eliminated. Judge Wright MOVED to put the phrase "in order to complete the case" back in on lines 17 and 18. Mr. Kapsner seconded. Motion CARRIED.

The Committee questioned the procedure if the parties fail to file a joint property and debt listing. Judges commented it is appropriate not to hold the hearing until a joint form is filed. Others commented the party not completing the form would be taking a risk by not proving his or her case. Committee members commented that by having other forms required earlier, there will be fewer problems getting the property and debt listing jointly prepared. If one side will not fill out the property and debt listing, the other side will just have to fill out their portion and submit it.

The Committee questioned the sentence on lines 57-59 providing that "only the party obtaining the decree need appear." Committee members commented that the plaintiff is the one obtaining the decree. The Committee noted the defendant could appear instead of the plaintiff. Judge Leclerc MOVED to adopt on lines 57-59, the


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alternative language following: "In that event, only one party need appear." Judge Wright seconded. Motion CARRIED.

The Committee questioned the applicability of the requirement for filing a joint informational statement no later than 5 days after the compulsory meeting in non-contested divorce cases. Committee members indicated the requirement is applicable in non-contested cases. If an exception is made for non-contested cases, subdivision (a) will never be used. The parties will always claim they intend to reach an agreement, and that the case will be non-contested. Usually that will not be the result. Also, if one party does not cooperate, the other party can still file the form.

Judge Hunke MOVED to adopt the proposed Rule 8.3 with the changes made by the Committee. Judge Leclerc seconded. Motion CARRIED.

APPENDIX C. RULE 8.3, NDROC - INFORMATION STATEMENT (PAGES 29-31 OF THE AGENDA MATERIAL).

The Committee reviewed the proposed sample informational statement which is required to be filed 35 days after the commencement of the action by Rule 8.3. The purpose of the form is for scheduling and case management.

Committee members questioned subdivision (5). Committee members were afraid unneeded character assassinations will occur by asking the parties whether there are "any issues that significantly affect the welfare of the children." The Committee was afraid the language invites a dissertation. only information affecting scheduling is needed.

Mr. Kapsner MOVED to put a colon after the word trial in subdivision (5) and to eliminate the phrase "and any issues that significantly affect the welfare of the children." Ms. Schmitz seconded. Motion CARRIED. Judge Hunke MOVED to approve Appendix C. Judge Leclerc seconded. Motion CARRIED.

The Committee noted the parties do not have to fill in the provisions that are inapplicable in subdivision 3.

APPENDIX D. RULE 8.3, NDROC - PRETRIAL CONFERENCE STATEMENT (PAGES 32-38 OF THE AGENDA MATERIAL).

The Committee reviewed the proposed sample pretrial conference statement. The statement must be filed at least 10 days before the pretrial conference.


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Committee members expressed concern about requiring witnesses and exhibits to be disclosed in the pretrial conference statement. Concern was expressed that the other side will manufacture evidence; especially in regard to child custody if exhibits are disclosed too far in advance of trial. Also, it will create problems for witnesses to have their names disclosed in advance of trial. The potential for harassment exists.

Committee members questioned when exhibits and witnesses should be disclosed. Members commented that if you ask for witnesses to be listed in interrogatories you will get an objection. The objection will be that the interrogatory asks for work product because the answer requires the mental impressions of the attorney as to whom is going to be called as a witness.

Committee members questioned how specifically the exhibits are required to be listed. For instance, is listing "photos" sufficient. Committee members also commented that there will not be an appropriate sanction for failure to disclose witnesses and exhibits.

Committee members commented that in some instances disclosure in the pretrial conference statement will be appropriate, such as when the pretrial conference is held immediately before trial. When the pretrial conference is held in advance of trial, the parties should not be bound by the witness and exhibit disclosure. Things will change before trial.

If witnesses are asked to be listed a month before trial, some said that they would respond by saying the decision has not yet been determined. Concern was expressed that requiring witnesses and exhibits to be listed early in the process would create unnecessary costs for clients if the case settles.

Judges said it is useful to know the number of exhibits and witnesses for case management purposes. In civil cases, exhibits and witnesses are often required to be listed in the pretrial conference statement. In civil cases, the pretrial conference is often backed off the trial date by about 7 or 8 days and witnesses and exhibits are disclosed at that time. In divorce cases, witness lists and exhibits are not exchanged until immediately before trial or at trial.

It was pointed out that the purpose of the form is to disclose information and alert the parties as to what disputes exist. The witness and exhibit list will not be accurate before the exchange of information in the form. Witnesses and exhibits are asked to be disclosed too soon.

Ms. Schmitz MOVED to delete the provisions asking for disclosure of witnesses and exhibits in number 12 and 13 of the


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pretrial conference statement on page 37. Judge Hunke seconded. Motion CARRIED.

Committee members said it should be clear the court has the authority to require disclosure of witnesses and documents before trial. A provision providing that the scheduling order issued under Rule 8.3 may contain a specific date for identification of witness and documents is needed. Mr. McLean MOVED that the following provision be inserted in Rule 8.3 on page 27:

"(9) A specific date for identification of witnesses and documents."

Judge Smith seconded. Motion CARRIED.

Ms. Schmitz MOVED to adopt Appendix Form D as amended. Judge Hunke seconded. Motion CARRIED.

Concern was expressed that the form will become burdensome and unusable because there is no limit as to the detail the form requires. It was suggested that a dollar value needs to be used as a limit as to whether the asset is required to be listed. Others commented that people will use common sense and know what type of assets need to be listed.

APPENDIX E. Rule 8.3, NDROC - PROPERTY AND DEBT LISTING (PAGES 39-40 OF THE AGENDA MATERIAL).

Staff explained that Appendix E is the sample property and debt listing that must be signed by both parties and filed at least ten days before trial. Ms. Schmitz MOVED to adopt Appendix Form E. Judge Hunke seconded. Motion CARRIED.

RULE 34, N.D.R.Civ.P. - PRODUCTION OF DOCUMENTS (PAGES 41-44 OF THE AGENDA MATERIAL).

Staff explained that the proposed amendment to the explanatory note to Rule 34 is similar to the explanatory note the Committee already approved for Rule 33, N.D.R.Civ.P. The purpose of the explanatory note is to alert the practitioner that any agreement for an extension of time needs to address both responses and objections, so that objections are not waived. Vorachek v. Citizens State Bank, 421 N.W.2d 45 (N.D. 1988), holds that untimely objections are waived.

Judge Leclerc MOVED to adopt the proposed explanatory note to Rule 34, but the word "answer" on line 47 and 49 should be changed to "response."


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RULES 54 § 58, N.D.R.Civ.P., RULE 4, N.D.R.App.P. - PROCEDURE FOR CLAIMING ATTORNEYS' FEES (PAGES 45-75 OF THE AGENDA MATERIAL).

Staff explained that Rules 54 and 58, Fed.R.Civ.P., and Rule 4, Fed.R.App.P., were amended in 1993 to spell out the procedure for claiming attorneys' fees recoverable under statute, and to allow the court to decide the issue of attorneys' fees either before or after appeal.

The Committee reviewed the proposed amendment to Rule 54, alternative 1 on pages 55-57, which follows the federal amendment. The Committee questioned which types of claims for attorneys' fees the rule governs. The Committee questioned whether the rule would be applicable to claims for attorneys' fees in divorce cases. Committee members stated that the rule would not be applicable to claims for attorneys' fees in divorce cases because the claim for attorneys' fees is a fact question that relates to the equities of the overall division. The rule applies to attorneys' fees that are not fact questions that are part of the judgment.

The Committee questioned the need for such a lengthy rule. All that is sought to be accomplished is to insure the motion is made in a timely manner. Simply, requiring the motion for attorneys' fees within 10 days would stay the time for appeal. In City of Grand Forks v. Henderson, 297 N.W.2d 450 (N.D. 1980), the Supreme Court said a motion to amend attorneys' fees allowed in a judgment is a motion to alter or amend the judgment which will terminate or toll the time running for appeal under Rule 59, N.D.R.Civ.P., and Rule 4(a), N.D.R.App.P.

Others noted that Henderson is based on federal case law overturned by the U.S. Supreme Court in Budinich v. Becton Dickinson § Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988). In Budinichthe Supreme Court ruled a motion for attorneys' fees is not a motion to alter or amend the judgment which postpones the time for appeal. The court reasoned a decision regarding attorneys' fees does not involve a reconsideration of the decision on the merits; and thus, is not a motion to alter or amend the judgment under Rule 59.

Committee members questioned the validity of Henderson given the change in federal law upon which Henderson is premised. Some Committee members argued attorneys should be able to rely on North Dakota's case law. The U.S. Supreme Court did not overrule the North Dakota Supreme Court. Others argued the North Dakota Supreme Court may find the U.S. Supreme Court decision persuasive. Thus, uncertainty exists as to whether a motion for attorneys' fees will postpone the time for appeal in North Dakota. Because the rationale for the decision is gone, the validity of the Henderson decision is questionable.


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The Committee reviewed the proposed amendment to Rule 58, N.D.R.Civ.P., on page 65. The amendment follows the 1993 amendment to Rule 54, Fed.R.Civ.P. The proposal gives the court the option whether to suspend the time for filing an appeal until after a motion for attorneys' fees is resolved. Committee members noted the time for appeal cannot be suspended under the federal rule if a notice of appeal has already been filed.

The Committee reviewed the proposed amendment to Rule 4, N.D.R.App.P., on page 67. The proposal follows the 1993 amendment to Rule 4, Fed.R.App.P. The proposal provides the time for appeal begins to run from service of notice of entry of the order granting or denying a motion for attorneys' fees, if the trial court extends the time for appeal under Rule 58.

Committee members commented that giving the trial court the option to suspend the time for appeal creates uncertainty. There will be uncertainty as to whether the judge will suspend the time for appeal, and cases will arise where it is unclear whether the judge in fact suspended the time for appeal.

The Committee reviewed an alternative proposal to amend Rule 4 on page 72. The alternative does not follow the federal rule. Instead, alternative 2 provides clarity by simply providing a motion for attorneys' fees under Rule 54 postpones the time for appeal. The trial court does not get the option of deciding whether the motion should suspend the time for appeal. The proposal also clarifies the law because of the uncertainty as to whether the Henderson case is controlling.

The Committee discussed the effect of a notice of appeal on the trial court's jurisdiction. Generally, the trial court losses jurisdiction once a notice of appeal has been filed. Committee members noted that it is important for a motion for attorneys' fees to be made in a timely manner. otherwise, there may be instances when the losing party files a notice of appeal before the motion for attorneys' fees has been made. Currently if a motion for attorneys' fees is made after the notice of appeal, the trial court generally will not exercise jurisdiction and the Supreme Court will remand the issue back to the trial court. Buzzell v. Libi, 340 N.W.2d 36 (N.D. 1983).

Committee members argued motions for attorneys' fees will be timely. The prevailing party can move for attorneys' fees before serving notice of entry of judgment. The issue of attorneys' fees can be decided before appeal.

Others argued once judgment is entered, a notice of appeal can be filed. Notice of entry of judgment is not necessary for an appeal. The losing party can also submit an appropriate form of judgment and have it entered under Rule 58, N.D.R.Civ.P.


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Thus, the losing side could appeal before the issue of attorneys' fees is decided by the trial court.

Committee members decided a short rule would be helpful to encourage motions for attorneys' fees before an appeal is taken. Filing the motion for attorneys' fees within 10 days will be within the normal time frame for suspending an appeal.

The Committee reviewed the proposed amendment to Rule 54, alternative 2 on page 59, which is an abbreviated version of the federal amendment. The Committee suggested lines 32-35 be eliminated. The rule does not need to specify what the motion must contain. Rule 7, N.D.R.Civ.P., contains the requirements for motions. The Committee suggested lines 36-38 be deleted. A provision saying the court can require the movant to disclose any fee agreement does not add anything. Attorneys will provide the information to prove the claim. The Committee also suggested lines 39-40 could be deleted. Rule 52, N.D.R.Civ.P., already contains the requirements for findings of fact and conclusions of law. Judge Leclerc MOVED to delete lines 32-40 on page 60. Judge Smith seconded. Motion CARRIED.

The Committee questioned how the rule could define which claims for attorneys' fees must be by motion. The suggestion was made that the rule pertain to any claim for attorneys' fees not included in the judgment. The rule should apply to any post-judgment motion for attorneys' fees.

The Committee suggested alternative language on lines 24-28 as follows:

"A claim for attorneys' fees and related nontaxable expenses not included in the judgment must be made by motion."

Committee members questioned whether the proposed language invites additional motions for attorneys' fees that were not included in the judgement because they were denied. The Committee suggested using the word "determine" instead of the word "include." Ms. Schmitz MOVED to adopt a new paragraph (2) on pages 59 and 60 as follows:

"(2) Attorneys' Fees. A claim for attorneys' fees and related nontaxable expenses not determined by the judgment must be made by motion. The motion must be filed and served no later than 10 days after notice of entry of judgment."

Judge Hunke seconded. Motion CARRIED.


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Ms. Schmitz MOVED to adopt the explanatory note as proposed. Judge Hunke seconded. Motion CARRIED.

The Committee again reviewed proposed Rule 58, N.D.R.Civ.P. on page 65. The Committee decided that a judge should not have discretion whether to toll the time for appeal. The Committee wanted certainty and clarity.

The Committee again reviewed proposed Rule 4, alternative 2, N.D.R.App.P. on page 72. The Committee questioned the purpose of the amendment on lines 30-32. Staff explained the amendment follows the 1993 federal amendment by providing that Rule 60 motions for relief from the judgment will toll the time for appeal, if made within 10 days. The purpose of the amendment is to eliminate the difficulty of determining whether a post-trial motion made within 10 days after notice of entry of the judgment is a Rule 59 motion to alter or amend the judgment or a Rule 60 motion for relief from the judgment.

Mr. Heinley MOVED to adopt the proposed amendment to Rule 4, N.D.R.App.P., on pages 72 and 73. Mr. Kapsner seconded. Motion CARRIED. Mr. Odegard MOVED to adopt the proposed explanatory note to Rule 4 on pages 73-75. Ms. Schmitz seconded. Motion CARRIED.

RULE 1.1 AND 3.2, NDROC - APPLICABILITY OF RULE 3.2 (PAGES 76-81 OF THE AGENDA MATERIAL).

The Committee considered whether to define the applicability of Rule 3.2 in Rule 3.2, rather than in Rule 1.1. The provisions are more obvious if they are within Rule 3.2. In addition, the recent family law amendments to the North Dakota Rules of Court conflict with Rule 3.2 and need to be excepted from Rule 3.2's requirements.

Judge Wright MOVED to adopt amended Rule 1.1 and the explanatory note on page 77. Mr. Kapsner seconded. Motion CARRIED.

On page 79, the Committee questioned why the proposal allows a statute in conflict with Rule 3.2 to prevail. Committee members argued the proposal invites the Legislature to promulgate statutes in conflict with Rule 3.2. Others stated the Legislature needs to be able to provide for expedited motions in special statutory proceedings.

Judge Hunke MOVED to adopt the proposed amendment to Rule 3.2 as shown on page 79, but to delete the phrase "a statute, or" on line 45 and the comma on line 46. Mr. Kapsner seconded. Motion CARRIED.


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RULE 3.2, NDROC - REPLY BRIEFS (PAGES 82-92 OF THE AGENDA MATERIAL).

The Committee reviewed a letter from Clifton Rodenburg asking that Rule 3.2 be amended to prohibit reply briefs. The Committee also reviewed Matter of Norman, 521 N.W.2d 395 (N.D. 1994).

Committee members argued that reply briefs should not be allowed. There must be an end to the back and forth process. If the movant needs to respond to the answer brief, the movant can request oral argument. Others argued reply briefs should be allowed. For instance, in a summary judgment motion, the only way to respond to the answer brief may be by filing additional affidavits.

On page 89, the Committee considered adding the following provision to Rule 3.2: "No other brief or supporting paper may be filed unless requested by the court." Others said the movant is the one who will know whether additional papers will be helpful for the court. The court may not know additional papers are needed. Counsel will need to send a letter to the court asking the court to request additional information. Committee members said asking the court for permission to file additional papers is really another Rule 3.2 motion. A motion within a motion.

Committee members commented that allowing reply briefs will extend the time for requesting oral argument, and the time the court must wait to decide the motion. Allowing 5 days for reply briefs will actually slow down the process by more than 5 days because 3 days must be added for service by mail and 2 days for intermediate Saturdays and Sundays. Judges commented that it is important to know when the motion is deemed submitted, so they know when they can decide the motion.

Committee members commented that giving 5 more days to request oral argument after the time for filing the reply brief will make motion practice too slow. The Committee decided to compromise by giving the movant an opportunity for a reply brief, but not to extend the process any longer by giving an additional 5 days after the reply brief is filed to request oral argument.

Judge Smith MOVED to amend Rule 3.2 on line 11 by adding the following provision: "The movant may serve and file a reply brief within 5 days after service of the answer brief." The proposed language on lines 11-19 should be deleted. Lines 33-35 will provide as follows: "Requests for oral argument or the taking of testimony must be made not later than 5 days after expiration of the time for filing the answer brief." Mr. Hoffman seconded. Motion CARRIED.


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The Committee discussed the requirements in Rule 3.2 for both service and filing. Service and filing are different dates. Because, service is complete upon mailing, whereas filing is not complete until receipt. Committee members argued the date of service should be the only relevant date. Otherwise, one really has to have the answer brief or reply brief done sooner than the date of filing in order to allow mail time. The answer brief cannot be completed and mailed on the tenth day because it will not be timely filed. The Committee was invited to send staff suggestions for resolving the dilemma about different operative dates in Rule 3.2.

The Committee considered the explanatory note on pages 91-92. The Committee did not think the proposed language in the explanatory note on lines 79-82 was necessary. Most of the time requests for oral argument are made over the telephone. The problem in the Normancase is resolved by the proposed amendment. Judges will know when the time period has ended for submitting additional papers. Mr. Hoffman MOVED not to adopt lines 79-82. Mr. Kapsner seconded. Motion CARRIED.

RULE 3.2, NDROC - REQUIREMENT FOR BRIEFS (PAGES 93-97 OF THE AGENDA MATERIAL).

The Committee discussed Rule 3.2's requirement for briefs and the consequences for not filing a brief. The Committee noted Hartman v. Hartman, 466 N.W.2d 155 (N.D. 1991), provides that even if the respondent does not file a brief, "the moving party has the burden of demonstrating to the trial court's satisfaction that he is entitled to the relief requested." The Committee also noted Rule 56(e) provides that if the adverse party does not respond, summary judgment may be entered "if appropriate."

Some Committee members argued that as a result of the amendment, some judges will deny motions without waiting for the answer brief, and that respondents will have an excuse for not filing an answer brief. Others argued a judge still has to wait until the time has expired for filing an answer brief because Rule 3.2 expressly provides a motion is not deemed submitted to the court until expiration of the time for filing. If a judge does not wait until expiration of the time for filing an answer brief before deciding the motion, an appeal is appropriate. Also, the moving party is entitled to request oral argument until 5 days after the expiration of the time for filing briefs.

Ms. Schmitz MOVED to adopt the proposed amendment on page 95. Mr. Odegard seconded. Motion CARRIED.

The Committee considered the proposed explanatory note to Rule 3.2 on pages 95-97. Ms. Schmitz MOVED to delete the proposed language on lines 70-73 and substitute the following language:


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"What constitutes a brief should be liberally construed." In some instances a motion, or affidavit and motion, may establish the grounds for the relief requested without a separate brief.

RETIREMENT OF JUSTICE LEVINE

This was Justice Levine's last meeting due to her retirement from the Supreme Court. The Committee honored and thanked Justice Levine for her years of dedicated service on the Committee. Justice Levine served as a member since January 1984 and as Chairperson since 1992. The Committee presented Justice Levine with a plaque to show its appreciation.

RULE 6, N.D.R.Civ.P. - TIME (PAGES 98-107 OF THE AGENDA MATERIAL).

The Committee discussed the conflict between Rule 6(d) and Rule 3.2. Rule 6(d) conflicts with Rule 3.2 because Rule 6(d) allows opposing affidavits to be served not later than 1 day before the hearing. Rule 3.2 requires opposing affidavits to be filed within 10 days after service of the movant's brief.

The Committee questioned whether all motions are Rule 3.2 motions. Some Committee members said not all motions are made and noticed according to Rule 3.2's requirements. A judge indicated if a motion is filed without being noticed as provided by Rule 3.2, the motion is treated as a Rule 6(d) motion, and the judge sets a time for oral argument. Under Rule 6(d), there is no requirement for a brief.

Other judges said if a motion is filed that does not contain a notice stating the procedure to be employed, the motion will just sit. The court will not on its own initiative set a time for hearing and notice the hearing. The court will not consider the motion a Rule 6(d) motion.

Committee members argued all motions are Rule 3.2 motions. The notice of motion is required to explain the procedure to be employed in deciding the motion regardless of whether the motion is designated as a Rule 3.2 motion. If the motion does not indicate the procedure to be employed in deciding the motion, the motion is improperly noticed.

Committee members stated traditionally Rule 3.2 motions were thought of as those motions decided on briefs. However, Rule 3.2 motions include motions argued orally. Rule 3.2 specifically addresses how one requests oral argument for a motion. The Committee questioned whether a Rule 3.2 motion encompasses motions for which there is an evidentiary hearing. The Committee noted Rule 3.2 addresses evidentiary hearings. Rule 3.2 provides that the court may allow or require testimony on a motion.


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Judge Hunke MOVED the adoption of Rule 6(d) on page 100. Ms. Schmitz seconded. The intent is to eliminate any conflict between Rule 6(d) and Rule 3.2, so there are not two rules governing motion practice. If Rule 6(d) is not amended, the practitioner will not know whether Rule 3.2 or Rule 6(d)'s time period governs opposing affidavits.

The Committee noted Rule 115, Minn.Gen.R.Prac., provides a procedure for motion practice conflicting with Rule 6(d), Minn.R.Civ.P. Also, Local Rule 7.1, U.S. Dist. Ct. for Dist. of N.D., provides a motion procedure conflicting with Rule 6(d), Fed.R.Civ.P.

Committee members suggested keeping Rule 6(d) because Rule 6(d) applies when there is oral argument or an evidentiary hearing. Members argued that affidavits should be allowed to be filed the day before the hearing. Things come up between the time the motion is made and the date of the hearing.

Others argued, if an affidavit is submitted the day before the hearing, there will not be time to subpoena the affiant for cross-examination at the evidentiary hearing. If affidavits are served 1 day before the hearing by mail the moving party will not have received the opposing affidavits by the time of the hearing. Committee members stated a judge is not going to be very receptive if the respondent has not received the papers by the time of the hearing. Committee members questioned how the moving party is to prepare if the respondent serves 20 affidavits the day before the hearing.

Committee members argued if someone asks for oral argument under Rule 3.2, Rule 6(d) gives them the right to serve opposing affidavits the day before the hearing. The Committee noted if Rule 6(d) prevails, the respondent can simply request oral argument to get extra time to submit opposing affidavits. Others commented that it is not clear whether the court will say you can submit affidavits the day before the hearing under Rule 6(d), or if Rule 3.2's time limits will govern.

Committee members concluded Rule 6(d) and Rule 3.2 cannot be reconciled by arguing Rule 6 only applies to evidentiary hearings. Rule 6(d) also applies to motions for which oral argument is held.

Committee members suggested if opposing affidavits are going to be allowed 1 day before the hearing, the provision should be incorporated in Rule 3.2 and deleted in Rule 6(d). Others argued Rule 6(d) is needed because not all motions are Rule 3.2 motions.

Committee members suggested there should not be any motions that are not noticed as provided in Rule 3.2. The purpose


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of the notice provisions in Rule 3.2 is to set forth by rule what the Supreme Court has said must be included in a notice of motion.

If there is a need for the opposing party to serve affidavits 1 day before an evidentiary hearing, the provision should be inserted in a subsection of Rule 3.2, so there is a uniform rule governing motion procedure.

Committee members questioned the need for Rule 6(d). The requirement that a written motion and notice of the motion be served at least 14 days before the hearing is what Rule 3.2 requires. The 14 days were calculated by counting 10 days for an answer brief under Rule 3.2, 3 days for service by mail under Rule 6(e), and for filing at least 1 day before the hearing under Rule 5(d)(2). The 14 day provision could be inserted into Rule 3.2.

Committee members criticized Rule 56, N.D.R.Civ.P. They argued more time is needed than 14 days for responding to motions for summary judgment. Others noted Rule 56 addresses the number of days the motion must be served before the motion may be heard. The respondent still only gets 10 days to prepare an answer brief under Rule 3.2.

Committee members argued the respondent should be required to serve opposing affidavits sooner than 1 day before the hearing. Others stated it has been a longstanding practice to allow opposing affidavits to be served 1 day before the hearing. The practice should not be changed. Committee members commented in Federal District Court in North Dakota, the court will allow opposing affidavits to be filed the day before the hearing.

It was suggested the provision in Rule 6(d) for ex parte motions should be eliminated. Others stated the provision is necessary for motions such as ex parte interim orders in divorce cases.

Committee members questioned how the U.S. District Court in North Dakota reconciles the differences between their local rule and the other rules of civil procedure. It was suggested a local rule cannot take away a litigant's right provided in the general rules of civil procedure. The general rules of civil procedure give litigants substantive rights as to how much notice is required. The local rules are a court management rule that cannot take away a litigant's rights under the general rules of procedure.

Committee members commented that Rule .3.2 has always conflicted with Rule 6(d). The conflict between Rule 3.2 and Rule 6(d) should not be the deciding factor for determining whether Rule 3.2 is working. As long as the provision is in Rule 6(d), the parties do have a right to file opposing affidavits 1 day before the hearing. No problem exists.


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The Committee noted a motion for change of custody may require an evidentiary hearing. The Committee then questioned whether the motion for a change of custody is a Rule 3.2 motion. Some Committee members said it is a Rule 3.2 motion; others said a motion for change of custody is not a Rule 3.2 motion. The Committee noted that under Rule 3.2, a party can request an evidentiary hearing. The parties could be required to make their motion under Rule 3.2.

Because Rule 6(d) is a long existing rule, modeled after federal practice, the Committee seemed to think Rule 6(d) should be retained. Judge Hunke withdrew his motion to amend Rule 6(d) to achieve consistency with Rule 3.2.

The meeting recessed at approximately 4:30 p.m.

JANUARY 26, 1996 - FRIDAY

The meeting reconvened at approximately 9:00 a.m. The Committee continued its discussion regarding the time conflict between Rule 6(d) and Rule 3.2 as to when opposing affidavits must be served. The Committee thought it was important to save Rule 6(d). But, the Committee also recognized that it is not clear to the user of the rules whether the time limit in Rule 6(d) or Rule 3.2 will govern.

Committee members said the requirements of Rule 6(d) cannot be put into Rule 3.2, because not all motions are heard under Rule 3.2. Rule 6(d) needs to be cross-referenced.

The Committee questioned the idea that all motions are not Rule 3.2 motions. If all motions are not Rule 3.2 motions, how does the practitioner know which motions must proceed according to the requirements of Rule 3.2. For instance, how does the movant know if he must give the notice according to Rule 3.2 and file a brief with the motion.

Committee members argued if the movant's original intent is to have the motion heard on briefs, the motion will need to be made under Rule 3.2. Otherwise, the motion may be made under Rule 6(d). The Committee also noted that Rule 6(d) does not address many questions such as who is responsible for securing the time for the hearing and noticing the hearing.

Judge Wright MOVED to reject the proposed amendment to Rule 6 on page 100 and to insert the following provision into Rule 3.2:

"If there is a request for oral argument or an evidentiary hearing, any affidavits must be filed pursuant to Rule 6(d), NDRCivP."


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Ms. Schmitz seconded. The Committee questioned the definition of evidentiary hearing. If affidavits are submitted with a motion heard on briefs, is it an evidentiary hearing? Motion CARRIED.

The Committee instructed staff to insert the adopted language in Rule 3.2 at an appropriate place and to bring the rule back to the Committee with all the changes made so the Committee can see Rule 3.2 in its final form. The purpose of bringing Rule 3.2 back to the Committee is not for reconsideration, but simply to allow the Committee to see its end product.

RULE 12, N.D.R.Civ.P. - MOTIONS FOR JUDGMENT ON THE PLEADINGS (PAGES 108-110 OF THE AGENDA MATERIAL).

The Committee discussed Rule 12's provision for both "hearing" and "determination" of a motion for judgment on the pleadings. The Committee discussed whether the provision requiring both "hearing" and "determination" could be misconstrued as requiring oral argument. Rule 3.2, NDROC, does not require motions to be argued orally, unless the court requires oral argument or a party makes a timely request for oral argument. The Committee noted the word "determination" does not exclude oral argument.

The Committee also noted the word "heard" includes motions heard on briefs. The Supreme Court has said that the word "hearing" does not necessarily mean oral argument is required. Motions may be heard on briefs. See State By Wkrs. Com. v. Kostka Food Serv., 516 N.W.2d 278 (N.D. 1994).

The Committee noted Rule 12, Fed.R.Civ.P., also uses the words "heard" and "determined."

Committee members were afraid eliminating the word "hearing" would invite sua sponte determinations by the court. The Committee decided not to amend Rule 12.

RULE 27, N.D.R.Civ.P. - DEPOSITIONS BEFORE ACTION (PAGES 111-114 OF THE AGENDA MATERIAL).

Staff explained Rule 27 appears to conflict with Rule 6(d), N.D.R.Civ.P., by requiring service of a petition for deposition at least 20 days before the hearing. Rule 6(d) only requires motions to be served at least 14 days before the motion may be heard.

The Committee noted if Rule 3.2 applies, the requirement that a petition must be served 20 days before the hearing instead of 14 days accomplishes nothing. Because, under Rule 3.2 the respondent's brief must be served and filed within 10 days after service of the motion.


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The Committee questioned the applicability of Rule 3.2. Under Rule 27, an action is not even commenced. How can people responding to the petition be expected to file an answer brief within 10 days under Rule 3.2, when they do not even have attorneys yet?

Rule 27 pertains to a petition and not a motion. Others said that under Rule 7(a), N.D.R.Civ.P., a petition for an order from the court is the same thing as a motion.

The Committee noted the Rule 27 notice is served like a summons. The petition is more analogous to a complaint. Twenty days are allowed for service of an answer.

The Committee decided Rule 27 is a highbred between a motion and a complaint. The Committee further decided Rule 27 is different enough from normal motion practice that it is clear that Rule 3.2 does not apply. Rule 27 contains its own procedures.

RULE 55, N.D.R.Civ.P. - DEFAULT (PAGES 115-119 OF THE AGENDA MATERIAL).

The Committee reviewed Rule 55 for conflict with Rule 3.2. The requirement in Rule 55 that a written notice of the application for judgment must be served at least 8 days before the hearing on the application conflicts with Rule 3.2. The responding party does not get the 10 days contemplated by Rule 3.2 for service of opposing affidavits.

The Committee considered whether Rule 55 should be amended to achieve consistency with Rule 3.2 by providing the notice of motion must be served at least 14 days before the motion may be heard. Committee members questioned whether there is a need to follow Rule 3.2 when seeking a default judgment.

The Committee noted in State By Wkrs. Com. v. Kostka Food Serv.,516 N.W.2d 278 (N.D. 1994), the court said that the notice of motion for default judgment was inadequate under Rule 3.2. The Committee did not think it was necessary to notice a motion for default judgment under Rule 3.2. The Committee was of the opinion that Rule 3.2 does not apply to Rule 55, because Rule 55 is a specific rule that conflicts with Rule 3.2. Rule 55 provides its own procedures. If seeking a default, one needs to follow the default rule and not Rule 3.2.

The question was raised whether Rule 3.2 should contain a provision providing the notice procedure in Rule 3.2 only applies if the movant is planning on having the motions heard on briefs. The Committee was questioning how you define which motions are covered by Rule 3.2 and which motions are not covered by Rule 3.2. When do Rule 3.2's notice procedures apply?


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The Committee noted that Kostka Food Serv., did not address the inconsistent time frames between Rule 3.2 and Rule 55. Can the opposing parties serve affidavits the day before the hearing under Rule 6(d) or does the procedure in Rule 3.2 apply?

The Committee decided to leave Rule 55 as it is, and to examine other rules of procedure for conflict with Rule 3.2.

RULE 59, N.D.R.Civ.P. - NEW TRIALS-AMENDMENT OF JUDGMENTS (PAGES 120-127 OF THE AGENDA MATERIAL).

The Committee reviewed Rule 59(e) which provides a notice of intention is not required before making a motion for a new trial. Nobody on the Committee was familiar with a notice of intention. The Committee noted the provision was carried over from Section 28-1905, NDRC. The provision is not in the federal rule. Why say in a rule what you do not have to do. Judge Hilden MOVED to delete subdivision (e) as shown on page 125. Ms. Schmitz seconded. Motion CARRIED. Judge Leclerc MOVED to adopt the explanatory note as shown on pages 125-127. Judge Wright seconded. Motion CARRIED.

RULE 17.1, N.D.R.Crim.P. - OMNIBUS HEARING (PAGES 128-135 OF THE AGENDA MATERIAL).

Staff explained Rule 17.1 conflicts with Rule 3.2 by requiring all motions to be presented orally at the omnibus hearing. Rule 3.2 does not require oral argument. The Committee considered whether Rule 17.1 should be amended to eliminate the requirement for oral argument, so that motions can be decided on briefs.

Committee members said that there is general requirement in criminal cases that all proceedings be conducted in the presence of the defendant. Others argued, the defendant can waive the right to be present by having the motion decided on briefs. Under Rule 3.2 the defendant can request oral argument or an evidentiary hearing. Others questioned whether the defendant can waive the right to be present through counsel.

Judges on the Committee differed as to how frequently they use the omnibus hearing procedures. Judges on the Committee said that they will decide motions in criminal cases on briefs without requiring oral argument. The Committee questioned whether Rule 3.2 should apply to criminal cases. The North Dakota Supreme Court has held that Rule 3.2 applies to criminal cases.

The Committee decided Rule 17.1 should not be amended.


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Judge Bohlman suggested amending Rule 7(b), N.D.R.Civ.P., by adding a new paragraph (5) to incorporate the portions of Rule 3.2 pertaining to noticing the motion and filing the brief within 10 days. The proposed rule should also provide "unless otherwise provided in these rules" to provide for exceptions. The rest of Rule 3.2 is not needed. The Committee decided Judge Bohlman should work with staff in preparing a proposal for the Committee to consider at the next meeting.

RULE 45, N.D.R.Civ.P. - SUBPOENA (PAGES 146-155 OF THE AGENDA MATERIAL).

The Committee considered whether Rule 45, N.D.R.Civ.P., should be amended to make it easier for attorneys to obtain a subpoena in North Dakota for an action pending in another state. The Committee reviewed the statutes and rules from Minnesota, Montana, and South Dakota on pages 149-151. The Committee thought North Dakota should reciprocate by making it easer to obtain a subpoena in North Dakota. The procedure for obtaining letters rogatory is cumbersome and archaic.

The Committee noted if a subpoena is issued for medical records, the party subpoenaed can object under Rule 45(f). The proposal will help a North Dakota client or a North Dakota lawyer who has an action pending in Minnesota, but has witnesses in North Dakota. The proposal makes courts user friendly.

Border judges indicated the clerk of courts may be issuing subpoenas to Minnesota attorneys for depositions in North Dakota. Unless someone objects, a judge might not be aware a subpoena was issued.

Mr. McLean MOVED to adopt the proposed amendment to Rule 45 on page 154. Judge Smith seconded. Motion CARRIED. Mr. McLean MOVED to adopt the explanatory note to Rule 45 on pages 154 and 155. Mr. Kapsner seconded. Motion CARRIED.

RULE 11.1, N.D.R.Crim.P. - SUSPENDED PROSECUTION (PAGES 156-169 OF THE AGENDA MATERIAL).

The Committee reviewed a request from Bruce Quick to adopt a rule providing for suspended prosecution. The proposal will allow the prosecution and the defendant to agree to suspension of the prosecution on conditions with the court's approval. If those conditions are complied with, the prosecution is dismissed. The benefit of such a rule would be to stop the criminal conduct, without having to waste the resources of the criminal justice system when a deferred imposition of sentence would be the likely result.


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The question was raised whether a DUI would have to be reported to the highway department if prosecution is suspended. Currently a statute requires a DUI to be reported to the highway department when there is deferred imposition of sentence. If this rule is adopted, someone is likely to lobby the Legislature to require suspended prosecutions of DUIs to be reported.

Members of the Committee indicated that currently agreements are reached for suspension of prosecution. But the procedure is not provided by rule.

Others argued the proposed rule would allow the prosecution and defendant to form their own criminal justice system. Enough attention is not given to the communities' interests. The public's perception of the criminal justice system will be hurt. Others commented that the prosecution is elected to speak for the public. The Committee decided to suspend discussion until more members who practice criminal law are present.

RULE 8, N.D.R.Civ.P. - GENERAL RULES OF PLEADING (PAGES 170-180 OF THE AGENDA MATERIAL).

The Committee reviewed Professor Kraft's letter on page 175. In his letter, Professor Kraft indicates the Legislature has enacted procedural rules governing pleading of damages, Section 32-3.2-07, N.D.C.C., and punitive damages Section 32-03.2-11, N.D.C.C.

The Committee discussed the authority of the Supreme Court to promulgate procedural rules, and to supersede statutes governing court procedure. The Committee questioned where the Legislature gets the authority to enact procedural rules. The Committee questioned why the Supreme Court is deferring to the Legislature unless there is a conflict. Committee members expressed concern about the Legislature taking over procedure.

It was explained that the purpose of the statutes requiring damages in excess of $50,000 to be pled generally is because the amount pled does not necessarily bear a relation to the amount actually recovered. Bad publicity surrounds an inflated claim and causes bad press for defendants. There is also a concern that pleading a specific amount over $50,000 will induce others to file similar claims. The statutes are part of the tort reform movement.

The Committee noted that listing a statute as superseded in the explanatory note is not enough. The Legislature will simply enact a new statute. A conflict needs to be created. A message needs to be sent to the Legislature. Others questioned whether the Legislature comprehends messages.


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Professor Kraft MOVED to amend Rule 8 to incorporate the language of the statute by requiring damages to be pled generally when greater than $50, 000 is sought. Judge Leclerc seconded. Motion CARRIED.

The Committee reviewed the statute on punitive damages, Section 32-03.2-11, N.D.C.C. The Committee noted the statute mixes substance with procedure. Committee members did not like the provision in the statute providing that evidence of a defendant's financial condition or net worth is not admissible in a proceeding for exemplary damages. Evidence of a defendant's net worth gives a jury a basis for determining the amount of the punitive damage award. Committee members expressed reservations about a statute saying what is admissible in evidence.

Others noted Rule 402, N.D.R.Ev., provides that "all relevant evidence is admissible, except as otherwise provided . . . by the statutes of North Dakota . . . ." The Committee also noted Rule 81, N.D.R.Civ.P., provides that special statutory proceedings are excepted from the rules of civil procedure in so for as they are inconsistent or in conflict. There are numerous legislative schemes that contain procedure within them such as the Uniform Probate Code. The Committee questioned whether the procedure for claiming exemplary damages is a "special statutory proceeding" under Rule 81.

The Committee concluded it is one thing for the Legislature to enact procedural statutes; it is quite another thing for the Legislature to force unwanted procedure upon the judicial system.

The Committee noted by reviewing the statutes on pleadings and damages, it was not condoning the rest of Chapter 32-03.2, including Section 32-03.2-11, N.D.C.C. The rest of the procedural aspects of Chapter 32-03.2, N.D.C.C., will be placed on the agenda as an ongoing item for discussion.

RULE 16, N.D.R.Crim.P. - DISCOVERY AND INSPECTION (PAGES 181-188 OF THE AGENDA MATERIAL).

The Committee discussed Mr. Hoffman's request to amend Rule 16(f) to provide for discovery of misdemeanor convictions of the state's witnesses. The Committee noted the prosecution already has an obligation to disclose a misdemeanor conviction under Brady v. Maryland, 83 S.Ct. 1194 (1963), and due process if it is admissible evidence.

Rule 609(a), N.D.R.Ev., provides for the admissibility of evidence that a witness has been convicted of a misdemeanor involving dishonesty or false statement within the last ten years.


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The Committee noted the proposal provides for the discovery of all misdemeanor convictions. The Committee questioned whether all misdemeanors should be discoverable, when all misdemeanors are not admissible.

Committee members argued disclosure of misdemeanor convictions will prevent people from becoming witnesses. People do not want to be embarrassed by past convictions that may not even be admissible.

Others argued the prosecution should not decide whether a particular conviction involves dishonesty or false statement. If the conviction is clearly inadmissible, the defense will not attempt to introduce the conviction into evidence, and the witness will not be embarrassed. The witness does not have the right to privacy because convictions are a matter of public record. The real issue is how the defense gets access to the public record. The prosecution has easier access and should not have the right to make the preliminary determination whether the evidence will ultimately be admissible.

Mr. Hoffman MOVED to adopt the proposed amendment to Rule 16 as shown on page 184. Judge Leclerc seconded. Motion CARRIED.

RULE 56, N.D.R.Civ.P. - SUMMARY JUDGMENT (PAGES 189-194 OF THE AGENDA MATERIAL).

The Committee reviewed a request from Mr. Zuger asking that Rule 56 be amended to clarify what is needed to invoke Rule 56(f). Rule 56(f) allows the court to grant a party additional time to conduct discovery before ruling on a motion for summary judgment.

The Committee noted a grant of extra time is not automatic under Rule 56(f) even if the request is made properly. Rule 56(f) also provides that the need for additional time must appear "from the affidavits of a party." In Hummel v. Mid Dakota Clinic, 526 N.W.2d 704 (N.D. 1995), it is not clear that affidavits of party were filed explaining the need for additional time or that Mr. Zuger asked for an extension of time under Rule 56(f). Judge Leclerc MOVED to discontinue discussion of Rule 56(f). Judge Wright seconded. Motion CARRIED.

RULE 80, N.D.R.Civ.P. - TRANSCRIPT AS EVIDENCE (PAGES 195-196 OF THE AGENDA MATERIAL).

The Committee reviewed a request from Judge Leclerc to amend Rule 80, N.D.R.Civ.P. The proposal provides for the admissibility of a transcript regardless whether the testimony was stenographically or electronically recorded. The proposal is


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consistent with the amendment previously made by the Committee to Rule 10, N.D.R.App.P. That amendment allows secretaries to prepare transcripts of proceedings that have been electronically recorded by someone else. Judge Wright MOVED to adopt Rule 80 as proposed on page 196. Judge Hilden seconded. Motion CARRIED.

The meeting adjourned at approximately 12:00 a.m.

Gerhard Raedeke