Joint Procedure Committee Meeting

Scheduled on Thursday, January 28, 1993 @ 9:00 AM

MINUTES OF MEETING

Joint Procedure Committee

January 28-29, 1993

CALL TO ORDER

The meeting was called to order at approximately 9:00 a.m., January 28, 1993, by Justice Beryl J. Levine, Chairperson.

ATTENDANCE

Present:

Justice Beryl Levine
Honorable Wallace Berning
Honorable Bruce Bohlman
Honorable Gail Hagerty
Honorable Ronald Hilden
Honorable Lawrence Leclerc
Honorable James O'Keefe
Honorable Kirk Smith
Honorable James Wright
Professor Larry Kraft
Ms. Patricia Ellingson
Mr. John Kapsner
Mr. Dwight Kautzmann
Mr. Ronald McLean
Mr. James Odegard (01/28/93 only)
Ms. Cathy Howe Schmitz

Absent:

Honorable Gerald Glaser
Mr. Robert Heinley
Mr. James Lamb
Mr. David Peterson

Staff:

Mr. Gerhard Raedeke
Ms. Cathy Arneson

PRELIMINARY MATTERS

New members of the Committee were welcomed and Committee membership was reviewed.

The schedule of the Joint Procedure Committee was announced as follows: April 29-30, 1993; September 23-24, 1993; January 27-28, 1994; and April 28-29, 1994. The next meeting will be held in Fargo.

-2-

APPROVAL OF MINUTES

Judge Leclerc MOVED that the minutes of the Joint Procedure Committee meeting of October 29-30, 1992, be approved as submitted. Mr. Odegard seconded. Motion CARRIED.

PROPOSED AMENDMENTS TO RULES OF CIVIL PROCEDURE

The Committee considered amendments to the Federal Rules of Civil Procedure, Rules of Criminal Procedure, Rules of Evidence, and Rules of Appellate Procedure that became effective December 1, 1991.

RULE 45 - SUBPOENA, (PAGES 134-161 OF THE AGENDA MATERIAL)

Staff highlighted significant changes caused by adoption of new Federal Rule 45. The Committee then considered the proposed rule on pages 141 through 153 of the agenda material, which is based on the format of the new Federal rule.

The Committee discussed proposed subdivision (a)(1)(A) and (B) on page 141. Concern was expressed about whether subpoenas should be issued before a case is filed, and whether the civil action number of the case should be listed on the subpoena as required by the proposed rule.

Judge Leclerc MOVED to table consideration of Rule 45. Mr. Kapsner SECONDED. Motion FAILED.

Mr. McLean MOVED to study Rule 45 provision by provision, and to take preliminary votes on the various provisions with the understanding that the Committee would vote whether to adopt the Rule after the entire rule had been reviewed. Professor Kraft SECONDED. Motion CARRIED.

Justice Levine suggested changing subdivision (a)(1)(B) as follows:

(B) state the title of the action, the name of the court in which it is pending filed, and its civil action number;

The Committee agreed to the change.

The Committee next considered proposed subdivision (a)(1)(C) on page 141. Paragraph (a)(1)(C) provides for inspection of premises of nonparties. Under the proposed rule, a nonparty would have the right to object to inspection of premises within fourteen days after being served a subpoena. The party seeking inspection would then have to get a court order to compel inspection.

-3-

Some Committee members were in favor of allowing inspection of premises of nonparties because of the need for the information in the search for truth and justice. Other members of the Committee had concerns about the intrusive burden that would be placed on nonparties. Committee members indicated that it was unfair to put the burden of objecting to inspection on the nonparty. The suggestion was made that a good cause showing should be required, as in Rule 35, before inspection of premises of nonparties is allowed.

Ms. Schmitz MOVED to tentatively accept subdivision (a)(1)(C). Mr. McLean SECONDED. Motion CARRIED.

The Committee next considered proposed subdivision (a)(1)(D) on page 142. Paragraph (D) requires that the text of subdivision (c) and (d) of the Rule be set forth in subpoena. Subdivision (c) and (d) contain the rights and duties of the person who is subpoenaed. Members of the Committee argued that the language in subdivision (c) and (d) is unintelligible. Ms. Schmitz MOVED to adopt subdivision (a)(1)(D). Mr. McLean SECONDED. Motion CARRIED.

The Committee next considered lines 30 through 33 of proposed subdivision (a)(1) on page 142, which provide for production of documents from a nonparty without the necessity of a deposition. Committee members pointed out that this could save time and money for the nonparty as well as the attorneys involved. Other Committee members thought that the provisions regarding production of documents and inspection of premises should be in Rule 34. other Committee members said the provisions belong in Rule 45, because Rule 45 applies to nonparties. Ms. Schmitz MOVED to adopt lines 29 through 33. Mr. McLean SECONDED. Motion CARRIED.

The Committee next considered proposed subdivision (a) (2) and (3) on page 142. Subdivision (a) (2) describes the court from which a subpoena may be issued, depending on whether the subpoena is for a trial, deposition, production or inspection. Committee members questioned the language on line 35 which provides that a subpoena "must issue from the clerk." Later on lines 50-53, Subdivision (a)(3) provides that an attorney may also issue and sign a subpoena on behalf of the court.

Proposed subdivision (a)(2) also provides for a subpoena to be issued from the district court for the county in which the deposition, production or inspection is to take place. Some Committee members thought that a subpoena should only issue from the court where the case is filed.

Mr. Odegard MOVED to adopt subdivision (a)(2) and (3). Ms. Schmitz SECONDED. The motion was withdrawn.

-4-

The Committee next reviewed current subdivisions (b) and (c) on page 143 of the agenda material. The consensus of the Committee was that current subdivisions (b) and (c) could be deleted. Some Committee members suggested that proposed subdivision (a)(2) and (3) should be rewritten to incorporate the language currently found in subdivision (c) of North Dakota's rule.

The Committee next considered proposed subdivision (b)(1) on page 144. Subdivision (b)(1) concerns service. Committee members indicated that the provision providing for service "by the sheriff or by any other person" is not needed because service is already covered by Rule 4(d). Ms. Schmitz MOVED to amend lines 82 through 87 as follows:

A subpoena may be served by the sheriff, by the sheriff's deputy, or by any other person who is not a party and is at least 18 years of age.Service of a subpoena upon a person named therein must be made as provided in this rule or by personal service pursuant to Rule 4(d).

Ms. Schmitz also MOVED to adopt the rest of subdivision (b) (1) as proposed. Mr. Odegard SECONDED. Motion CARRIED.

The Committee specifically discussed the requirement in lines 93 through 96 for prior notice of any commanded production or inspection. Some Committee members questioned whether this provision meant that a separate notice document would be required to be served before the subpoena. Other Committee members noted that service of notice is a prerequisite to the issuance of a subpoena by the clerk of court.

The Committee agreed that subdivision (b)(3) of the Federal rule should not be in North Dakota's rule. Subdivision (b)(3) concerns filing proof of service.

The Committee next considered current subdivision (d)(2) on pages 144 and 145. The Committee decided that provisions for service of subpoenas by sheriffs by means of registered mail, telegram or telephone are not needed. Rule 4(d), NDRCivP, already contains the provisions needed for service.

The Committee next considered current subdivision (d) (3) and (4) on pages 145 through 146. The Committee noted that the requirement to pay witness fees is stronger in the current rule because it expressly provides that the witness need not obey a subpoena if the fees are not paid. The proposed language on page 144, lines 88 through 90, simply provides that the person's fees are to be tendered. The Committee agreed that the proposed rule should provide that if the fees are not paid the witness does not have to obey the subpoena.

-5-

The Committee next considered current subdivision (e)(1). The Committee decided that the requirement for service of notice to take a deposition is already adequately covered in Rules 30(b) and 31(a).

The Committee next considered proposed subdivision (c) on page 147. Subdivision (c)(1) provides that an attorney is to take reasonable steps to avoid imposing undue burden or expense on a person subject to a subpoena. Subdivision (c)(1) further provides that abuse of a subpoena becomes an actionable tort. Committee members pointed out that sanctions are already available in Rule 11. Other Committee members noted that subdivision (c) is a way of informing people that they are protected from abuse. Mr. Kapsner MOVED to delete subdivision (c)(1). Judge Leclerc SECONDED. Motion failed. Ms. Schmitz MOVED to adopt subdivision (c)(1). Judge Berning SECONDED. Motion CARRIED.

The Committee next considered proposed subdivision (c)(2)(A) on page 147. Subdivision (2)(A) provides that in cases of production or inspection, the person subpoenaed need not appear unless so commanded. Ms. Schmitz MOVED to adopt subdivision (c)(2)(A). Ms. Ellingson SECONDED. Motion CARRIED.

The Committee next considered proposed subdivision (c) (2) (B) on page 148. Subdivision (c)(2)(B) provides that the person commanded to produce and permit inspection has 14 days after service of a subpoena to object. If objection is made, the person serving the subpoena must get a court order to inspect documents or premises. The Rule further provides that an order to compel production must protect a nonparty from significant expense. Committee members questioned why no sanction was authorized for abusive objections. Ms. Schmitz MOVED to adopt subdivision (c)(2)(B) as proposed on page 148 of the agenda material. Mr. McLean SECONDED. Motion CARRIED.

The Committee next considered proposed subdivision (c)(3)(A) and (B) on pages 149 through 151. Mr. McLean MOVED to adopt subdivision (c)(3)(A) as proposed. Ms. Schmitz SECONDED. Motion CARRIED.

Committee members questioned the relationship between paragraph (A) and paragraph (B) of proposed subdivision (c)(3). Both paragraph (A) and (B) provide grounds for quashing or modifying subpoenas. Judge Bohlman MOVED to amend subdivision (c)(3)(B) as follows:

If a subpoena

(i) requires disclosure of a trade secret or other confidential research, development, or commercial information, or;

-6-

(ii) requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party,; or

(iii) requires a person who is not a party or an officer of a party to incur substantial expense to travel more than 100 miles to attend trial;

the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena . . . .

Mr. Odegard SECONDED. Motion CARRIED.

Judge Bohlman also MOVED to eliminate the phrase "to travel more than 100 miles" on line 273 of page 151. Mr. Kautzmann SECONDED. Motion CARRIED. Committee members noted that traveling 100 miles was not the real reason that substantial expense would be incurred.

Committee members were frustrated at how difficult subdivision (c)(3)(A) and (B) were to understand. The Committee was concerned that people receiving the statement of their rights and duties would not be able to understand the language. Committee members suggested redrafting paragraphs (A) and (B). Other Committee members thought that Federal provisions should be adopted provision for provision or not at all.

Mr. McLean MOVED to eliminate the word "hearing" on lines 250 and 256 to be consistent with line 273. Mr. McLean also MOVED to add the phrase "on timely motion" to start the line on 274, so that paragraph (B) is consistent with paragraph (A). Mr. Odegard SECONDED. Motion CARRIED.

The Committee next considered proposed subdivision (d) on page 151. Paragraph (2) of subdivision (d) requires the person claiming privilege to include a description of the nature of the documents. Committee members pointed out that a layperson will not know whether documents are privileged. Other Committee members suggested that the only change effected by the rule is to eliminate the necessity of deposing a witness to obtain production of documents. Ms. Schmitz MOVED to adopt subdivision (d) as proposed. Mr. McLean SECONDED. Motion CARRIED.

The Committee next considered proposed subdivision (e), which deals with contempt. Ms. Schmitz MOVED to adopt subdivision (e) as proposed. Mr. McLean SECONDED. Motion CARRIED.

Committee members discussed whether there should be a good cause requirement, as in Rule 35, for Rule 45 inspection of

-7-

premises of a nonparty. Some members of the Committee thought that inspection of premises should be provided for in Rule 34. Other Committee members questioned why inspection of premises should be placed in Rule 34 because Rule 45 applies to nonparties.

Ms. Schmitz MOVED to approve proposed Rule 45 as modified by the Committee, and with an additional insertion on line 25 of page 141 permitting inspection only upon order of court for good cause shown. Mr. Odegard SECONDED. Motion CARRIED.

RULE 34 - PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY UPON LAND FOR INSPECTION AND OTHER PURPOSES (PAGES 162-164 OF THE AGENDA MATERIAL)

Ms. Schmitz MOVED to adopt Rule 34(c) as proposed. Mr. McLean SECONDED. Motion CARRIED.

RULE 47 - JURORS, (PAGES 165-170 OF THE AGENDA MATERIAL)

Committee members expressed concern that the proposed rule allowed additional jurors when a six-person jury is impaneled, but not when a nine-person jury is impaneled. Under the proposed rule, if additional jurors are not impaneled when a nine-person jury is requested, a mistrial will result if the number of jurors drops below nine unless the parties stipulate to go with less than nine.

Committee members expressed dissatisfaction with the peremptory challenge system for additional or alternate jurors. Mr. Odegard MOVED that a period be placed after "jurors" on line 17 of page 168, to delete the phrase "if a six person jury is impaneled," to strike lines 29 through 36, and to change the phrase "one or two jurors" to "one or more jurors," throughout the rule. Mr. Kapsner SECONDED. Motion CARRIED.

The Committee also decided that the provision for excusing a juror should be in a separate provision from the provision for challenges for cause.

RULE 48 - JURIES OF LESS THAN NINE-MAJORITY VERDICT (PAGES 171-174 OF THE AGENDA MATERIAL)

Judge Leclerc MOVED to amend Rule 48 so that it would conform with the Federal rule, with the exception that North Dakota's rule provide for seating six to ten jurors. Motion failed for lack of a second. Ms. Schmitz MOVED to adopt proposed Rule 48; except that in line 14 of page 173, the word "qualified" should be struck, and on lines 16 through 18 the

-8-

last sentence about jurors participating should be deleted. Mr. Odegard SECONDED. Motion CARRIED.

RULE 50 - JUDGMENT AS A MATTER OF LAW IN ACTIONS TRIED BY JURY, (PAGES 175-184 OF THE AGENDA MATERIAL)

The Committee expressed concerns about the Federal comment to Rule 50 which indicates that parties are to have an opportunity to cure deficiencies in proof before judgment as a matter of law is granted. Ms. Schmitz MOVED to adopt Rule 50 as proposed, but not the explanatory note. Further research is to be done regarding the opportunity to cure deficiencies in proof. Judge Leclerc SECONDED. Motion CARRIED.

RULE 52-FINDINGS BY THE COURT AND RULE 41-DISMISSAL OF ACTIONS (PAGES 185 THROUGH 194)

Mr. Kapsner MOVED to adopt Rule 52 and 41 as proposed. Ms. Schmitz SECONDED. Motion CARRIED.

The Committee discussed the additional sentence on lines 14 and 15 of proposed Rule 52. The additional provision provides that findings of fact, whether based on oral or documentary evidence, are not to be set aside unless clearly erroneous. Judge Smith MOVED to adopt the additional language and the explanatory note to Rule 52 with the addition of a citation to Stracka v. Peterson, 377 N.W.2d 580 (N.D. 1985).

The Committee discussed the language in Rule 50 on lines 52 through 58. The consensus of the Committee was that the language did not add anything and is not needed.

The Committee discussed the addition of the phrase "for improper venue" on line 26 in proposed Rule 41. The Committee concluded that the language was not applicable to North Dakota because cases are not dismissed for improper venue, they are transferred. Ms. Schmitz MOVED to adopt the explanatory note for Rule 41. Judge Smith SECONDED. Motion CARRIED.

RULE 53 - MASTERS (PAGES 195 - 198 OF THE AGENDA MATERIAL)

Ms. Schmitz MOVED to adopt proposed Rule 53 and explanatory note. Judge Leclerc SECONDED. Motion CARRIED.

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

January 29, 1993, Friday

Justice Levine reconvened the Committee at approximately 9:00 a.m.

-9-

SBAND ATTORNEY STANDARDS COMMITTEE PROPOSED AMENDMENTS TO RULE 60(a), NDRCIVP, AND RULE 7.1, NDROC

On behalf of the SBAND Attorney Standards Committee, Paul Ebeltoft recommended changes to Rule 60(a), NDRCivP, and Rule 7.1(a), NDROC. The changes were recommended in response. to Disciplinary Action Against Wilson, 461 N.W.2d 105 (N.D. 1990). Mr. Kapsner asked to be excused from participation in the Committee's review of Rule 7.1 and Rule 60. Judge Hagerty MOVED to amend Rule 7.1 as follows:

RULE 7.1 - JUDGMENTS, ORDERS AND DECREES

(a) Preparation of Orders and Decrees. Presentation of drafts. Whenever the court rules upon a motion makes a ruling other than in the course of trial or makes a final determination in an action, the attorney for the prevailing party shall prepare and present to the court the order, order for judgment, or decree to be entered, unless the court directs otherwise.

(b)Preparation of Findings of Fact and Conclusions of Law:

(1) Preparation by One or More Parties. Preparation of proposed findings of fact and conclusions of law under Rule 52(a) of the North Dakota Rules of Civil Procedure may be assigned by the court to one or more parties. Any findings of fact and conclusions of law prepared by one or more parties shall be served upon all other parties for review and comment. The other parties may serve a response in writing, within 10 days of service, or such other time as the court, in its discretion, may allow. The court shall thereafter enter findings of fact and conclusions of law as it may deem appropriate.

(2) Preparation by Court. If the court chooses to prepare its own findings of fact and conclusions of law, the parties may, in the discretion of the court, be allowed to submit proposed findings of fact and conclusions of law within the time specified by the court for that purpose. The court may consider such proposed findings of fact and conclusions of law submitted by the parties, and may adopt, modify, or reject any proposed findings of fact or conclusion of law regardless of who submitted it to the court.

(3) Amendment of Findings. Nothing contained in this Rule of Court shall affect the right of any party to move the court for an order amending the findings of fact finally entered by the court or to make additional

-10-

findings, pursuant to Rule 52(b) of the North Dakota Rules of Civil Procedure.

(c) In the event any party prepares documents pursuant to this rule, copies must be served upon all other parties.

Judge Leclerc SECONDED. Motion CARRIED.

Judge Hagerty MOVED to amend Rule 60(a) as follows:

Rule 60. RELIEF FROM JUDGMENT OR ORDER

(a) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversights or omission may be corrected by the court: (1) at any time on its own initiative; or (2) on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the supreme court, and thereafter while the appeal is pending may be so corrected with leave of the supreme court.

Ms. Schmitz SECONDED. Motion CARRIED. Judge Leclerc requested that staff amend the notes to Rule 52(a) and Rule 60 to direct the practitioner to Rule 7.1, NDROC.

RULE 63 - DISABILITY OF A JUDGE (PAGES 199 - 202 OF THE AGENDA MATERIAL)

Ms. Schmitz MOVED to adopt proposed Rule 63 as it appears in the agenda material. The motion CARRIED. Judge Hilden MOVED to delete the last sentence of the explanatory note on lines 42 through 45. Committee members thought that the last sentence of the explanatory note should be deleted because the note is stating the obvious. Ms. Schmitz SECONDED the motion. Motion CARRIED. The Committee voted to adopt the proposed explanatory note with the deletion of the last sentence.

RULE 72 MAGISTRATES, PRETRIAL MATTERS (PAGES 203-204 OF THE AGENDA MATERIAL)

RULE 77 - DISTRICT COURTS AND CLERKS (PAGES 205-209 OF THE AGENDA MATERIAL)

The Committee reviewed the Federal amendments to Rule 72 and 77, and determined that North Dakota's rules do not need amending.

PROPOSED AMENDMENTS TO RULES OF APPELLATE PROCEDURE

-11-

RULE 4 - APPEAL AS OF RIGHT - WHEN TAKEN (PAGES 210-215 OF THE AGENDA MATERIAL)

RULE 25 - FILING AND SERVICE (PAGES 216-219)

The Committee reviewed the Federal amendments to Rule 4 and 25, and determined that North Dakota's rules do not need amending.

RULE 28 - BRIEFS (PAGES 220-227 OF THE AGENDA MATERIAL)

Judge Leclerc MOVED to adopt proposed Rule 28 and the explanatory note as set forth on pages 223 through 227. Ms. Schmitz SECONDED. Motion CARRIED.

RULE 30 - APPENDIX TO BRIEFS (PAGES 228-232 OF THE AGENDA MATERIAL)

The Committee reviewed Rule 30, NDRAppP. Committee members expressed dissatisfaction with the Rule, because the Rule is not followed in practice. In practice, the parties often end up with two appendices if the appellant does not include documents in the appendix that are deemed necessary by the appellee. Committee members noted that there is no reason for the appendix to be completed before the briefs are finished. Further discussion was reserved for another meeting as the change being discussed was beyond the scope of the agenda proposal. Staff was instructed to place the issue as to when the appendix should be filed on a future meeting agenda.

Ms. Schmitz MOVED to adopt proposed Rule 30 along with the explanatory note as set forth on pages 231 through 232. Professor Kraft SECONDED. Motion CARRIED.

RULE 34 - ORAL ARGUMENT (PAGES 233-237 OF THE AGENDA MATERIAL)

Ms. Schmitz MOVED to adopt proposed Rule 34 and the explanatory note as set forth on pages 235-237 of the agenda material. Judge Smith SECONDED. Motion CARRIED.

PROPOSED AMENDMENTS TO RULES OF EVIDENCE

RULE 404-CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT, EXCEPTIONS: OTHER CRIMES (PAGES 238-241 OF THE AGENDA MATERIAL)

Committee members questioned why the burden should be on the accused to request notice under the amendment. Judge Leclerc MOVED to delete the phrase that "upon request by the accused" on line 28 and to delete the phrase "or during trial if the court excuses pretrial notice on good cause shown" on lines 30 and 31 of page 241. Mr. Kapsner SECONDED. After discussion,

-12-

Judge Leclerc moved to withdraw his motion to delete the phrase "or during trial if the court excuses pretrial notice on good cause shown." Mr. Kapsner SECONDED. The Committee voted whether to adopt Rule 404 as set forth on pages 240-241 with the deletion of the phrase "upon request by the accused." Motion CARRIED.

Staff was instructed to redraft the explanatory note to call attention to the deviation from the Federal rules. The reason for the deviation is because it is unfair to put the burden on the accused to call attention to the accused's own fault. Putting the burden on the accused goes against the presumption of innocence.

PROPOSED AMENDMENTS TO RULES OF CRIMINAL PROCEDURE

RULE 16-DISCOVERY AND INSPECTION (PAGES 242-247 OF THE AGENDA MATERIAL)

Judge Leclerc MOVED to adopt proposed Rule 16 on pages 245-246. Ms. Schmitz SECONDED. Discussion ensued as to why the second sentence in subdivision (a)(1)(A) does not start out with the phrase "upon written request of a defendant" as does the first sentence. Professor Kraft MOVED to make the second sentence in subdivision (a)(1)(A) a continuation of the first sentence as follows:

Upon written request of a defendant, the prosecuting attorney shall disclose to the defendant and make available for inspection, copying, or photographing: . . . and (iii) recorded testimony of the defendant before a grand jury concerning the offense charged; and (iv) the substance of any other relevant oral statement. . . .

Ms. Schmitz moved to delete the phrase, "if the government intends to use that statement at trial," which is on lines 32-34 of page 246. Mr. Kautzmann SECONDED. Motion CARRIED.

The Committee also discussed the use of the word "relevant" in the Rule. Committee members questioned the meaning of the word "relevant," and why the prosecutor should determine what is relevant. Judge Leclerc MOVED to strike "relevant" on line 20 of proposed Rule 16. Judge Hilden SECONDED. Motion CARRIED.

As a substitute motion, Mr. Kautzmann moved to delete the word "relevant" on lines 13, 20, 29 and 37 of the proposed rule. Ms. Schmitz SECONDED. Motion FAILED. Committee members had concerns about removing the word "relevant" on line 13 because of the due diligence requirement in (i). The Committee was concerned that the due diligence requirement would place a

-13-

duty on the prosecution to find statements that are not relevant. The Committee decided not to delete the word "relevant" on lines 13 and 37 because such amendments were beyond the scope of the agenda material. Committee members suggested considering deletion of the word "relevant" on lines 13 and 37 at another meeting.

Mr. Kautzmann MOVED to get rid of the word "relevant" on line 29. Judge Hilden SECONDED. Motion CARRIED. The Committee voted on proposed Rule 16 as changed with the understanding that the use of the word "relevant" will be considered at a future meeting. The Committee instructed staff to rewrite the explanatory note to correspond with the Committee changes to the proposed rule.

RULE 35-CORRECTION OR REDUCTION OF SENTENCE (PAGES 248-252 OF THE AGENDA MATERIAL)

A new draft of proposed Rule 35 was distributed to the Committee at the meeting. Committee members were opposed to amending Rule 35 to follow the Federal rule. Committee members explained that the Federal system works differently as the Federal system has mandatory sentencing. Members of the Committee were concerned that amending Rule 35 would encourage prisoners to lie in attempts to make deals with the prosecution.

A letter from the Board of Governors of the North Dakota Trial Lawyers Association was presented to the Committee. The Board of Governors recommended that Rule 35 be amended to allow both the government and the defendant to make motions for reduction of sentence. Judge Leclerc MOVED to reject any amendment to Rule 35 in response to the Federal amendment to Rule 35. Judge Wright SECONDED. Motion CARRIED.

The Committee next considered a proposed amendment to Rule 35 in response to State v. Jensen, 429 N.W.2d 445 (N.D. 1990). The consensus of the Committee was that the rule does not need to be amended. State v. Jensen answers the question of whether a new 120 day period is created for moving for a reduction of sentence after a writ of certiorari is denied years after a sentence is imposed.

The Committee noted that a strict reading of State v. Jensen means that a court cannot grant a motion after 120 days has passed even though the motion was made within the 120 day time limit. Some Committee members thought that in county court, the judge has inherent authority to release a prisoner at any time. Other Committee members said that in district court the 120 days is jurisdictional, and that after 120 days, the prisoner is under the control of the probation department. Other Committee members thought that there should be a time limit requiring the court to rule on a motion within so many days after the 120 day period for making the motion has

-14-

elapsed. Mr. Kapsner MOVED to table further discussion until the next Committee meeting, at which time the Committee would consider whether the court should have additional time to rule on a motion made within the 120 day time period. Mr. Kautzmann SECONDED. Motion CARRIED.

FACSIMILE TRANSMISSION RULE

The Committee briefly discussed the use of facsimile transmission machines. The Committee agreed to consider a proposed rule patterned after the model facsimile utilization rules prepared by the National Center for State Courts at the next meeting.

Gerhard Raedeke

Staff Attorney