Joint Procedure Committee Meeting

Scheduled on Friday, January 26, 1968 @ 9:00 AM

January 26, 1968

The Joint Committee of the Judicial Council and the State Bar Association for the Adoption of Rules of Criminal Procedure met at 9:12 a.m., Jan. 26, 1968, in the hearing room of the Supreme Court.

Members present were:
Supreme Court Judge Ralph Erickstad, Chairman;
Retired Supreme Court Judge James Morris;
District Judge Eugene A. Burdick;
District Judge Roy A. Ilvedson;
District Judge Norbert J. Muggli;
County Judge Kirk Smith;
Mr. John Shaft.

Members absent were:
Former Supreme Court Judge William S. Murray;
Mr. Gerald G. Glaser;
Mr. Robert L. Vogel.

Also present were:
Mr. Paul M. Sand, First Assistant Attorney General;
Mr. John A. Graham, law clerk;
Mrs. Rebecca Quanrud, secretary.

Judge Erickstad opened the meeting by inviting Mr. Sand to express his views on the subject of grand juries. Mr. Sand said that his experience with them has been limited to one occasion in 1966. He said that his ideas regarding the ambiguity of the statutes governing grand juries and his recommendations for amendment are generally set forth in his letter of Jan. 25, which is hereby made a part of these minutes. Copies were furnished committee members at the meeting.

After Mr. Sand's departure the secretary began the reading of the minutes of the previous meeting, first calling to the committee's attention a typographical error on page 3 which showed that Mr. Vogel had been assigned the drafting of Rule 3, rather than Rule 8.

Judge Burdick moved that the reading of the texts of rules adopted at the previous meeting be dispensed with. Judge Morris seconded the motion. The motion carried.

There being no additions or corrections to the minutes as read, they were approved.

In the absence of Mr. Glaser, Judge Muggli read Mr. Glaser's letter of Nov. 22, 1967, regarding Rule 3, and also his letter regarding the applicability of the proposed rules to proceedings in municipal courts. A discussion of that topic followed.

Judge Burdick moved to amend Rule 1 as adopted at the previous meeting. Judge Smith seconded the motion. The motion carried. Rule 1 as amended reads:

Rule 1. Scope.

These rules govern the practice and procedure in all criminal actions and proceedings in the district court, and, so far as applicable, in all other courts, and govern, except as otherwise provided by statute, prosecutions for the violation of municipal ordinances.

After a discussion of N.D.C.C. § 29-05-01, Judge Ilvedson suggested that the question; Should § 29-05-01 be retained? be entered in the committee's minutes, and that the question should be one for later action. It was the consensus that this should be done.

Judge Ilvedson suggested that while working on the rules, the committee should follow the numbering of the Federal Rules of Criminal Procedure. Although no vote was taken, it seemed that the majority of the committee agreed.

Mr. Shaft read his draft of Rule 4(a)(1) and moved its adoption. it read:

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Rule 4. Warrant or Summons Upon Complaint.

(a) Issuance.

(1) Warrant. If it appears from the complaint, or from the examination, if any, of the complainant or other witnesses, that there is probable cause to believe that a criminal offense has been committed by the defendant, a warrant for the arrest of the defendant shall issue to any officer authorized by law to execute it.

After discussion and amendment the draft was adopted. As amended it read:

Rule 4. Warrant or Summons Upon Complaint.

(a) Issuance.

(1) Warrant. If it appears to the magistrate, from the complaint, or from the examination under oath, if any, of the complainant or other witnesses, or from an affidavit or affidavits filed with the complaint, that there is probable cause to believe that a criminal offense has been committed by the defendant, a warrant for the arrest of the defendant shall issue to any officer authorized by law to execute it.

Mr. Shaft read his draft of Rule 4(a)(2) and moved its adoption. After discussion it was adopted without amendment. It reads:

Rule 4. Warrant or Summons Upon Complaint.

(a) Issuance.

(2) Summons. A summons may issue in lieu of a warrant if the magistrate has reason to believe that the defendant will appear in response to it, or if the defendant is a corporation. In any case in which it is lawful for an officer to arrest a person without a warrant, he may give the person a summons instead of arresting him.

The committee recessed at 12:32 p.m. and was called to order again at 3:08 p.m. following the attendance by members of the funeral of Retired Chief Justice P. 0. Sathre.

It was moved by Judge Muggli, seconded by Judge Ilvedson, that the action by which the committee adopted Rule 4(a)(1) be reconsidered. The motion carried. Judge Muggli then moved that Rule 4(a)(1) be amended by adding the following:

When the magistrate before whom the complaint is made is someone other than a judge of the Supreme Court, district court, or county court of increased jurisdiction, he shall not issue a warrant until the complaint has been approved by the prosecuting attorney. In cases where it appears from the complaint or other written evidence submitted to the magistrate that the accused is likely to escape from the county before the prosecuting attorney can approve of the complaint, and the magistrate so certifies on the complaint, a warrant may issue without approval of the prosecuting attorney.

Judge Burdick moved that the proposed amendment to Rule 4(a)(1) be further amended so that the first sentence of the new material would read:

He shall not issue a warrant until the complaint has been approved by the prosecuting attorney.

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The question being on Judge Burdick's proposed amendment, the vote was 3 in favor, 4 opposed, and the amendment was declared lost.

After discussion and amendment, Judge Muggli's proposed amendment was adopted. As amended Rule 4(a)(1) reads:

Rule 4. Warrant or Summons Upon Complaint.

(a) issuance.

(1) Warrant. If it appears to the magistrate, from the complaint, or from the examination under oath, if any, of the complainant or other witnesses, or from an affidavit or affidavits filed with the complaint, that there is probable cause to believe that a criminal offense has been committed by the defendant, a warrant for the arrest of the defendant shall issue to any officer authorized by law to execute it. If the magistrate before whom the complaint is made is someone other than a judge of the Supreme Court, district court, or county court of increased jurisdiction, he shall not issue a warrant until the complaint has been approved by the prosecuting attorney. If it appears to the magistrate from the complaint or other written evidence submitted to him that the accused is likely to abscond before the prosecuting attorney can approve the complaint, and the magistrate so certifies on the complaint, a warrant may issue without approval of the prosecuting attorney.

Mr. Shaft read his draft of Rule 4(a)(3) and moved its adoption. It read:

Rule 4. Warrant or Summons Upon Complaint.

(a) Issuance.

(3) Failure of Defendant to Appear after Summons. If a defendant who has been duly summoned fails to appear or if there is reasonable cause to believe that he will fail to appear, a warrant of arrest shall issue. if a defendant corporation fails to appear after having been duly summoned, a plea of not guilty shall be entered by the magistrate if he is empowered to try the offense for which the summons was issued and he may proceed to trial and judgment without further process; if the magistrate is not so empowered he shall hold the defendant to answer in the district court.

After discussion and amendment the draft was adopted. As amended it reads:

Rule 4. Warrant or Summons Upon Complaint.

(a) Issuance.

(3) Failure of Defendant to Appear after Summons. If a defendant who has been duly summoned fails to appear or if there is reasonable cause to believe that he will fail to appear, a warrant of arrest shall issue. If a defendant corporation fails to appear after having been duly summoned, a plea of not guilty shall be entered by the magistrate if he is empowered to try the offense for which the summons was issued and he may proceed to trial and judgment without further process; if the magistrate is not so empowered he shall proceed as though the defendant had appeared.

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Mr. Shaft read his draft of Rule 4(a)(4) and moved its adoption. It read:

Rule 4. Warrant or Summons Upon Complaint.

(a) Issuance.

(4) Additional Warrants or Summonses. More than one warrant or summons may issue on the same complaint and it is permissible to specify one or more charges against any person in a single warrant or summons.

After discussion and amendment the draft was adopted. As amended it reads:

Rule 4. Warrant or Summons Upon Complaint.

(a) Issuance.

(4) Additional Warrants or Summonses. More than one warrant or summons may issue on the same complaint.

Mr. Shaft read his draft of Rule 4(b)(1) and moved its adoption. It read:

Rule 4. Warrant or Summons Upon Complaint.

(b) Form.

(1) Warrant. The warrant shall be in writing, in the name of the State of North Dakota, and be signed by the issuing magistrate with the title of his office. It shall state the date when issued and the municipality or county where issued. It shall specify the name of the defendant or, if his name is unknown, any name or description by which he can be identified with reasonable certainty. It shall describe the offense charged against the defendant. The warrant shall require that the defendant be brought forthwith before a named or otherwise designated magistrate of the county in which the offense is triable, or, in the event of his absence or inability to act, before the nearest available magistrate in such county. The warrant may also have endorsed upon it the amount of bail if the offense is bailable.

After discussion and amendment the draft was adopted. As amended it reads:

Rule 4. Warrant or Summons Upon Complaint.

(b) Form.

(1) Warrant. The warrant shall be in writing, in the name of the State of North Dakota, and be signed by the issuing magistrate with the title of his office. It shall state the date when issued and the municipality or county where issued. It shall specify the name of the defendant or, if his name is unknown, any name or description by which he can be identified with reasonable certainty. It shall describe the offense charged against the defendant. If the offense charged is triable in the county in which the warrant issues, the warrant shall command that the defendant be arrested and brought forthwith before the magistrate issuing the warrant or another magistrate therein designated or, in the event of his absence or inability to act, before the nearest available magistrate; if the offense charged is triable only in another county of the state, the warrant shall require that the defendant be brought forthwith before a named or otherwise designated magistrate of the county in which the offense is triable, or, in the event of his absence or inability to act,

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before the nearest available magistrate in such county. The warrant may also have endorsed upon it the amount of bail if the offense is bailable.

The committee recessed at 6:15 p.m. and was called to order again at 8:15 a.m. Jan. 27, with the same members and staff present as on the previous day.

Mr. Shaft read his draft of Rule 4(b)(2) and moved its adoption. It read:

Rule 4. Warrant or Summons Upon Complaint.

(b) Form.

(2) Summons. The summons shall be in the same form as the warrant except that it shall summon the defendant to appear before the magistrate issuing it at a stated time and place and shall inform the defendant that if he fails to appear a warrant for his arrest will issue.

After discussion and amendment the draft was adopted. As amend it reads:

Rule 4. Warrant or Summons Upon Complaint.

(b) Form.

(2) Summons. The summons shall be in the same form as the warrant except that it shall summon the defendant to appear before the magistrate issuing it or another magistrate therein designated at a stated time and place and shall inform the defendant that if he fails to appear a warrant for his arrest will issue.

Mr. Shaft reads his drafts of Rule 4(c)(1) and (2) and moved their adoption. They read:

Rule 4. Warrant or Summons Upon Complaint.

(c) Execution or Service.

(1) Execution of Warrant. The warrant shall be directed to all peace officers in this state and shall be executed only by a peace officer. It shall be executed by the arrest of the defendant and may be executed in any county of the state by any peace officer in the state. The officer need not have the warrant in his possession at the time of the arrest, but if he has the warrant at that time he shall show it to the defendant immediately upon request. If the officer does not have the warrant in his possession at the time of the arrest, he shall then inform the defendant of the offense charged and of the fact that a warrant has been issued, and upon request he shall show the warrant to the defendant as soon as possible.

(2) Service of Summons. The summons may be served at any place within the jurisdiction of the state. The summons shall be served upon a defendant by delivering a copy to him personally, or by leaving it at his dwelling house or usual place of abode with some person of suitable age or discretion then residing therein, or by mailing it to the defendant's last known address. It may be served by any person authorized to serve a summons in a civil action.

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After discussion it was decided to postpone action on subsection (1), and Mr. Shaft amended his motion to refer only to Rule 4(c)(2). After further discussion and amendment that draft was adopted. It reads:

Rule 4. Warrant or Summons Upon Complaint.

(c) Execution or Service.

(2) Service of Summons. The summons shall be served in the manner provided for service of a summons in a civil action. It may be served by any person authorized to serve a summons in a civil action.

After discussion of N.D.C.C. §§ 29-05-23 to 29-05-27 Judge Burdick suggested that committee members should discuss these statutes with peace officers in their areas and should report at the next meeting.

There followed a discussion of arrest. The consensus was that all statutes on arrest should be retained without reference to them in the rules.

It was noted that Federal Rule 4(c)(3) is covered in proposed North Dakota Rule 4(c)(1) and (2).

Mr. Shaft read his draft of Rule 4(d) and moved its adoption. It read:

Rule 4. Warrant or Summons Upon Complaint.

(d) Return. The officer executing a warrant shall make return thereof to the magistrate before whom the defendant is brought pursuant to Rule 5. At the request of the prosecuting attorney an unexecuted warrant shall be returned to the magistrate by whom it was issued and may be cancelled by him. On or before the return day the person to whom a summons is delivered for service shall make return thereof to the magistrate before whom the summons is returnable.

Judge Burdick moved that the language of the federal rule, as submitted by him in his draft of Nov. 21, 1967, be substituted for the language of Mr. Shaft's draft. The question being on Judge Burdick's substitute motion, the notion carried. Rule 4(d) as adopted reads:

Rule 4. Warrant or Summons Upon Complaint.

(d) Return. The officer executing a warrant shall make return thereof to the magistrate before whom the defendant is brought pursuant to Rule 5. At the request of the prosecuting attorney an unexecuted warrant shall be returned to the magistrate by whom it was issued and shall be cancelled by him. On or before the return day the person to whom a summons is delivered for service shall make return thereof to the magistrate before whom the summons is returnable. At the request of the prosecuting attorney made while a complaint is pending, a warrant returned unexecuted and not cancelled, or a summons returned unserved, or a duplicate thereof, may be delivered by the magistrate to a peace officer for execution or service.

It was decided to ask Mr. Robert Vogel to undertake as a special project an explanation at the next meeting of the provision of this subsection relating to cancellation of unexecuted warrants.

Mr. Shaft read his draft of Rule 4(e)(1) and moved its adoption. After discussion it was adopted without amendment. It reads:

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Rule 4. Warrant or Summons Upon Complaint.

(e) Defective Warrant or Summons.

(1) Amendment. No person arrested under a warrant or appearing in response to a summons shall be discharged from custody or dismissed because of any informality in the warrant or summons, but the warrant or summons may be amended so as to remedy the informality.

Mr. Shaft read his draft of Rule 4(e)(2) and moved its adoption. It read:

Rule 4. Warrant or Summons Upon Complaint.

(e) Defective Warrant or Summons.

(2) Issuance of new warrant or summons. If during the preliminary examination of a person arrested under a warrant or appearing in response to a summons, it appears that the warrant or summons does not properly name or describe the defendant, or the offense with which he is charged, the magistrate shall not discharge or dismiss the defendant but shall forthwith cause a new complaint to be filed and shall thereupon issue a new warrant or summons.

Judge Smith moved that action on Rule 4(e)(2) be suspended until after action has been taken on Rule 5. Judge Morris seconded the motion. The question being on Judge Smith's substitute motion, the motion carried unanimously.

Judge Smith read his draft of Rule 5(a) and moved its adoption. It read:

Rule 5. Proceedings Before the Magistrate.

(a) Appearance Before the Magistrate.

An officer making an arrest under a warrant issued upon a complaint for a felony shall take the arrested person without unnecessary delay before the magistrate who issued the warrant or before some other magistrate in the same county as commanded in the warrant and any attorney at law entitled to practice in the courts of record of this state at his request may visit such person after his arrest. If the arrest is made in a county other than that in which the warrant was issued and the offense charged is a misdemeanor the arrested person, shall upon his demand be taken before a magistrate in such county authorized to admit him to bail, who may admit him to bail for his appearance before the proper magistrate in the county or municipality in which the warrant was issued. If a person arrested without a warrant is brought before a magistrate, a complaint shall be filed forthwith in the county where the offense was allegedly committed, and a copy of the complaint shall be given to the arrested person within a reasonable time. If the arrest is made by a private person, he may, instead of taking the person arrested before a magistrate, deliver him to a peace officer.

After discussion and amendment the draft was adopted. As amended it reads:

Rule 5. Proceedings Before the Magistrate.

(a) Appearance Before the Magistrate.

An officer making an arrest under a warrant issued upon a complaint for a felony shall take the arrested person without unnecessary delay before the magistrate as commanded in

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the warrant. If the arrest is made in a county other than that in which the warrant was issued and the offense charged is a misdemeanor, the arrested person shall upon his demand be taken before a magistrate in such county authorized to admit him to bail, who may admit him to bail for his appearance before the proper magistrate in the county or municipality in which the warrant was issued. If a person arrested without a warrant is brought before a magistrate, a complaint shall be filed forthwith in the county where the offense was allegedly committed, and a copy of the complaint shall be given to the arrested person within a reasonable time.

Judge Smith read his draft of Rule 5(b) and moved its adoption. It read:

Rule 5. Proceedings Before the Magistrate.

(b) Statement by the Magistrate.

When a person arrested, either under or without a warrant, is brought before a magistrate, or a defendant who has been summoned appears before a magistrate in response to the summons, the magistrate shall inform him of the charge against him. If the offense charged is a felony, the magistrate shall also inform him of his right to have a preliminary examination and to waive such examination, and of his right to counsel at the preliminary examination. If the offense charged is a misdemeanor, the magistrate shall inform the defendant of his right to a jury trial and of his right to counsel at such trial. In every case he shall also inform the defendant of his right to remain silent, that any statement made by him may be used against him, and that he has the right to the aid of counsel before making any statement or answering any questions until such time as he is discharged or finally convicted. If the offense charged is one for which court-appointed counsel may be required to be furnished, the person arrested shall also be informed that he has the right to have his legal services provided for him at public expense to the extent that he is unable to pay for his own defense without undue hardship. The magistrate shall allow the arrested person reasonable time and opportunity to consult with counsel and shall admit him to bail as provided in these rules.

After discussion and amendment the draft was adopted. As amended it reads:

Rule 5. Proceedings Before the Magistrate.

(b) Statement by the Magistrate.

When a person arrested, either under or without a warrant, is brought before a magistrate, or a defendant who has been summoned appears before a magistrate in response to the summons, the magistrate shall inform him of the charge against him. If the offense charged is a felony the magistrate shall also inform him of his right to have a preliminary examination and to waive such examination, and of his right to counsel at the preliminary examination. If the offense charged is a misdemeanor, the magistrate shall inform the defendant of his right to a trial by jury and of his right to appear and defend in person and with counsel. In every case he shall also inform the defendant of his right to remain silent, that any statement made by him may be used against him, and that he has the

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right to the aid of counsel before making any statement or answering any questions until such time as he is discharged or finally convicted. If the offense charged is one for which court-appointed counsel may be required, the person arrested shall also be informed that he has the right to have his legal services provided for him at public expense to the extent that he is unable to pay for his own defense without undue hardship. The magistrate shall allow the arrested person reasonable time and opportunity to consult with counsel and, if the offense is bailable, shall admit him to bail as provided in these rules.

Judge Morris commented on Rule 6, which has to do with grand juries. He said that he felt that grand juries were not needed in North Dakota and that he would like to see them done away with, but that he belie because of the wording of the Constitution, that only the Legislature can abolish the grand jury and that it cannot delegate its power to do so to another branch of the government. He suggested that it might be a good idea to recommend to the Legislature the repeal of the grand jury statutes. He also suggested that the committee omit mention of grand juries in the rules.

It was agreed that the chairman should make assignments of drafts of proposed rules by mail[1] an that he should inform the committee of its next meeting date by mail[2]. The meeting adjourned at 12:20 p.m.

Secretary

February 13, 1968

1 Pursuant to that suggestion Judge Erickstad has made the following assignments: Rule 11, Judge Smith; Rule 12, Mr. Shaft; Rule 13, Mr. Vogel; Rule 14, Mr. Glaser; Rule 15, Judge Ilvedson, Rule 16, Judge Murray; Rule 17, Judge Muggli; Rule 18, Judge Morris; Rules 19 and Mr. Sand; Rule 21, Mr. Persinger.

It is suggested that in drafting proposed rules the specific source of the various parts of each one be indicated in the left margin, and that the pertinent statutes and recommendations for their disposition be shown below each proposed section or subsection, to aid the other members in study and discussion. If 14-inch paper is used for material that has to be reproduced, please leave ample margins at top and bottom, as the Xerox used by the Court will not reproduce beyond 13 inches.

2 The date of the next meeting is tentatively set for May 10-11, 1968, to begin at 9:00 a.m. May 10, to include an evening session on that day, and to run from 9:00 a.m. through 12:00 noon on the llth.