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Joint Procedure Committee Meeting

Scheduled on Thursday, October 25, 1990 @ 10:15 AM


Joint Procedure Committee

October 25-26, 1990


The meeting was called to order at 9:15 a.m., October 25, 1990, by Justice H.F. "Sparky" Gierke, Chairman.



Honorable Wallace Berning
Honorable Gerald Glaser
Honorable Ronald Hilden
Honorable Lawrence Leclerc
Honorable Beryl Levine
Mr. Leonard Bucklin
Mr. John Kapsner
Mr. Dwight Kautzmann
Professor Larry Kraft
Mr. James Lamb
Mr. David Peterson
Ms. Cathy Howe Schmitz


Honorable Eugene Burdick
Honorable Frank Kosanda
Honorable Kirk Smith
Honorable James O'Keefe
Mr. Robert Heinley
Mr. Ronald McLean


DeNae Kautzmann, Staff Attorney
Pam Ciavarella, Secretary


Judge Hilden MOVED that the minutes of the Joint Procedure Committee meeting of April 20, 1989, be approved as submitted. Ms. Schmitz seconded the motion. Motion CARRIED.


Judge Glaser indicated that we previously had a policy that if a member missed 3 consecutive meetings that it was assumed the member was no longer interested in the Committee's work and the member was asked to step aside. He asked the chairman to appoint a replacement for Pat Brendel who has moved to Minneapolis and to inquire of Judge Burdick and Judge Kosanda whether they wish to stay on the Committee and, if not, to appoint replacements for them as well.


The Committee reviewed AR31 and Rule 25(a) NDRAppP which were adopted as Emergency Rules by the Supreme Court. The rules allow the use of facsimile transmission for administrative documents but not for documents that are to be filed.

The Committee reviewed proposed rules concerning the filing and service of documents by facsimile transmission which were patterned after the rules in Minnesota and South Dakota. The Committee was apprised of a study report conducted by the National Center for State Courts on the use of fax machines in the State of Minnesota. The major benefits of fax for the Minnesota District Courts are fast communications, savings in time and travel, speedy pace of litigation, elimination of express mail costs and convenience. Some of the problems encountered were the collection of fax transmission fees, illegible lines, transmission difficulties, paper jams, limited number of pages that can be stacked in the machine, potential and actual abuses, difficulty reading thermal paper, duplicate papers in the file, lack of clarity of rules as to retention requirements for fax documents and the impermanence of thermal paper.

The Committee discussed the use of fax extensively. Mr. Bucklin indicated that fax documents are hard to read. Judge Leclerc indicated that it would be very tough for the Court Administrator to keep track of the receipt of fees and indicated that the rule in Minnesota is not popular with everyone. He felt that there are 3 dimensions of fax for the Committee to consider:

1 - administrative documents

2 - filing

3 - orders

Judge Glaser did not see a reason for allowing the filing of documents by fax. Mr. Bucklin indicated that the reason would be to meet time deadlines.


Judge Leclerc brought a faxed document for the the Committee to review. Justice Levine thought it would be a good idea to have a Clerk of a District Court appear before the Committee in order to give us a hands-on look at this issue. Justice Levine stated that some County Judges are already using fax machines so their Clerks would have experience to share with us. Justice Gierke indicated that Judge Donavin Grenz is a proponent of allowing its use at the trial court level. He suggested that we invite him to speak to us sometime today or tomorrow. The Committee agreed and requested that Judge Grenz be contacted.

Ms. Schmitz indicated that her office has had a fax machine for 1 year. It is very convenient and the members of her firm like it very much. Judge Leclerc said that he's concerned with the cost associated in receiving fax documents. Mr. Kautzmann indicated that there should be no cost. It's part of doing business. Professor Kraft stated he's concerned with the security of knowing whether or not the fax document got to its destination. Mr. Kautzmann indicated that fax would save in litigation costs and would be advantageous in divorce cases.

Judge Berning MOVED (this motion is referred to on page 9) to approve Proposed Rule 5.1(a) NDRCivP and Ms. Schmitz seconded the motion. Judge Leclerc stated that he was not in favor of the motion because the Committee has not studied the issue long enough. Mr. Kautzmann indicated that there is no need for a facsimile rule in the criminal area because we are already there, i.e., teletypes and telephonic warrants, etc. Professor Kraft indicated that at line 2, page 26 the language should be amended to clarify what paper may be filed. Judge Berning's motion died for a lack of a second.

Justice Gierke indicated that he reached Judge Donavin Grenz and that he will be appearing at today's group luncheon to discuss the use of fax machines. Mr. Kautzmann MOVED to table discussion until after lunch. Mr. Lamb seconded the motion. Motion CARRIED.


Paragraph 24 of Rule 803 NDREv relates to a child's hearsay statement about sexual abuse. This paragraph was adopted by the North Dakota Supreme Court in 1989. Since that time the United States Supreme Court decided a child abuse case entitled Idaho v. Wright, 493 U.S. ___ (1990). The issue


decided was whether the admission at trial of certain hearsay statements made by a child declarant to a examining pediatrician violates a defendant's rights under the Confrontation Clause of the 6th Amendment. The United States Supreme Court held that it did. The statements were admitted under Idaho's residual hearsay exception. The Court held that incriminating statements admissible under an exception to the hearsay rule are not admissible under the Confrontation Clause unless the prosecution produces, or demonstrates the unavailability of, the declarant whose statement it wishes to use and unless the statement bears adequate indicia of reliability. The reliability requirement can be met where the statement either falls within a firmly rooted hearsay exception or is supported by a showing of particularized guarantees of trustworthiness.

The Committee reviewed language addressing this case in the explanatory note to Rule 803. Professor Kraft felt that we were interpreting the law by including this language. Mr. Bucklin felt that it was better not to say anything concerning Idaho v. Wright. Ms. Schmitz felt that the case should be added to the table of cases immediately following Rule 803 and not to add any language concerning the case to the explanatory note itself. Ms. Schmitz MOVED that it be noted in the table of cases that the rule be read in light of Idaho v. Wright. Mr. Kapsner seconded the motion. Motion CARRIED.

RULE 43(d), N.D.R.Civ.P.

At the April 20, 1989 meeting, it was pointed out to the Committee members that there was no standard oath form in North Dakota. The Committee reviewed three proposals for a standard oath form. The first proposal was based upon Pat Brendel's suggestion. The second proposal was based on Section 31-01-22, N.D.C.C., language which was superceded by Rule 43(d), N.D.R.Civ.P. The third proposal was based on Judge Burdick's suggestion. Professor Kraft MOVED to adopt the language submitted by Judge Burdick. Justice Levine seconded the motion. Judge Leclerc asked what we would do in criminal cases. Mr. Kautzmann indicated that administrative law judges use an oath form based on statute which is quite the oath. He felt that it may be best not to dictate a standard oath form. It was the general consensus of the members that we do not have a uniform oath form. Professor Kraft withdrew his motion.



At the April 20, 1989 meeting, staff was requested to provide the Committee with a list of civil rules and criminal rules relating to motion practice that conflict with Rule 3.2 N.D.R.O.C. The research was requested because the Committee was considering whether to specify the rules that would not be superseded by Rule 3.2. Judge Glaser indicated that the real problem is that not everyone in the state is following the rule.

Mr. Lamb MOVED that Rule 6(d), 12(c), 56(c), 37(a) and 59(e) N.D.R.Civ.P. relating to time and other procedures governing motions be subject to Rule 3.2. Mr. Kapsner seconded the motion. Mr. Kautzmann indicated that if we wanted uniform rules then we should change the rules to the same time frame as found in Rule 3.2. Mr. Kapsner indicated that many of the rules are inconsistent and all of the rules should be rewritten to track Rule 3.2. Mr. Lamb clarified his motion, with consent of the second, to include that all the rules be redrafted. Mr. Peterson stated that Rule 3. 2 has been in effect for many years. The lawyers and judges in this district think that it is working well. However, it is not being followed uniformly across the state, i.e., in Dickinson you can't get a hearing and in Fargo you have to have a hearing on every motion. Motion CARRIED. Judge Leclerc requested that his no vote be recorded.

The Committee then discussed the criminal rules in conflict with Rule 3.2. Mr. Kautzmann indicated that there is an inherent problem with this because the court has to set criminal hearings before civil hearings. Mr. Kautzmann MOVED that Rule 3.2 be amended to indicate that it doesn't apply to the criminal rules. Judge Leclerc seconded the motion. Judge Glaser stated that when he thinks of Rule 3.2, he thinks of it as a civil rule and not as a criminal rule because of the constitutional safeguards associated with criminal cases. Mr. Kautzmann indicated that at the federal level criminal cases are controlled by the Speedy Trial Act. Justice Levine stated that we should check State v. Tibor concerning Rule 3.2. Judge Leclerc inquired as to how Rule 3.2 applies in administrative cases. Judge Hilden stated that the prosecutors in Dickinson use Rule 3.2. He likes it because it keeps the cases moving. Mr. Peterson stated that perhaps we should except the specific rules that staff counsel found. Justice Gierke stated that we could resolve this issue by inserting at the end of Rule 3.2 language which provides that the criminal rules that are inconsistent


prevail. Professor Kraft stated that Rule 3.2 has been used as a catch-all rule and maybe we should so note that Rule 3.2 applies unless a rule specifically specifies times. Judge Glaser indicated that we can go through the rules now and if there does not appear to be any reason for a different time frame, etc., that it be changed to be consistent with Rule 3.2. Mr. Lamb indicated that that may be the way to go unless the rule indicates "unless otherwise provided, Rule 3.2 applies". Mr. Peterson said that he would prefer to go to Rule 1.1 N.D.R.O.C. and add to the language "and unless otherwise provided for specifically in another rule. . .". Then we could look at what we want to do with the criminal rules. Ms. Schmitz indicated that we need to put something into the criminal rules concerning this.

Mr. Peterson MOVED a substitute motion that the following language be added to the end of Rule 1.1 N.D.R.O.C. "in civil and criminal cases, unless there is a specific rule addressing the matter in which case the specific rule would govern." Then we can look at the criminal rules and see what we need to change. Judge Hilden seconded the motion. Justice Gierke requested staff counsel research this issue for the next meeting since the Committee doesn't know what criminal rules should track Rule 3.2. Judge Hilden indicated that he would work with defense and prosecuting attorney's on this. Substitute motion CARRIED. Ms. Schmitz questioned whether the explanatory note to Rule 3.2 should include that amendments have been made to the civil rules to conform to Rule 3.2. The Committee members did not feel that that was necessary.


The Joint Procedure Committee has been working on contempt legislation for a number of years. At the April 20th meeting they approved a proposal which is patterned after the Wisconsin statute. The proposed legislation would repeal the current procedure contained in Chapter 27-10 and Section 12.1-10-01 and Rule 42 NDRCRimP. Housekeeping amendments would have to be made in several sections of the law and those were brought forth for the Committee's consideration.

Mr. Kautzmann did not recall that the Contempt proposal was approved. He thought that there were problems with the draft. Judge Berning indicated that we have problems with contempt but that the proposal doesn't answer all those problems. Professor


Kraft indicated that we may need to move the domestic relations portion out of the proposal.

Mr. Kautzmann MOVED to reconsider action at the last meeting concerning the submission of this proposal to the legislature and that the Committee not take any position on it. Mr. Lamb seconded the motion. Mr. Lamb suggested that perhaps we could send a letter to the Legislature saying that the contempt laws were a mess and that we would like the Legislature to address it. Mr. Kapsner indicated that we may want to give the draft product to Legislative Council for a point of reference. Judge Glaser stated that the motion is a two part motion and asked Mr. Kautzmann to restate his motion. Mr. Kautzmann MOVED to reconsider the previous action. Mr. Lamb seconded the motion. Motion CARRIED.

Judge Hilden suggested getting a subcommittee together to review the contempt proposal. Judge Leclerc suggested laying this matter over until tomorrow. Mr. Peterson stated that we have something to work with and that perhaps we could polish the proposal. Mr. Lamb MOVED to table discussion until tomorrow morning. Ms. Schmitz seconded the motion. Motion CARRIED. Judge Glaser indicated that there has been a lot of work put into this draft proposal and asked everyone to think about it during the evening so that we can fine tune it tomorrow.


The meeting was recessed until 1:00 pm, October 25, 1990.


The meeting was called to order at 1:00 pm, October 25, 1990 by Justice H.F. "Sparky" Gierke, Chairman. The attendance remained the same as in the morning session except that Justice Levine was absent.


Judge Donavin Grenz, a multi-district County Judge, appeared before the Committee to discuss the use of fax machines. He indicated that he uses fax for just about everything, i.e., complaints, search warrants, marriage licenses etc. The originals are signed later and are substituted in the file for the faxed documents and the faxed documents are then


thrown away. He has found that the use of fax has saved time and money. He has been able to present a lower budget to the County Commissioners. The major problems or objections as he sees it is the quality of the fax machine, rolled paper versus 8 ½ by 11 paper and thermal paper versus plain paper. He uses a Xerox Fax Machine right now. It is very fast. You can preset it for when the telephone rates go down and you can change locations during the transmission, which also saves in costs. He indicated that Cannon has a great fax machine out right now that uses a printer which is easier to read, but, the transmission is longer and therefore the cost is a little higher.

Judge Leclerc asked why there was such a drop in his budget. Judge Donavin responded that it was due to reduced travel between the counties, reduced telephone costs, and it also eliminated 3 of the 4 magistrates that he used. He feels that he could now function without a magistrate. He stated that he was very happy with the use of fax because it saved money and improved services.

Judge Hilden asked Judge Grenz what he would like to see in the rules. Judge Grenz indicated that his clerks were reluctant at first to use fax because they felt that they would be spending too much time substituting originals for the faxed documents, however, since they had experienced the use of fax, they are very happy with it as long as it is on 8 ½ x 11 paper and as long as they do not have to copy a fax document in order to file it. Originally, the clerks saw it as a threat to their job but actually they have realized that it enhances their position.

Judge Hilden asked whether we needed to substitute the fax with the original. That seems to be the big question that the Committee is grappling with today. Judge Glaser questioned whether this qualifies as a duplicate original under the Rules of Evidence. Judge Grenz indicated that we could set direct minimum standards and require two things: 1-regular paper; 2- permanent paper.

The technology in this area is rapidly expanding and changing. For example laser printers are even better now than what was previously available. Judge Grenz indicated that it is the rural areas that would benefit from the use of fax. He is not using fax to open files, but, he doesn't see why it couldn't be used for that. He recommended that the Committee look at this step by step.


Judge Grenz indicated that if you couple the fax machine with the laser printer it would knock out all the arguments against the use of fax except for the authenticity question. The shelf life would be extremely long. Mr. Bucklin indicated that plain paper fax lasts longer and that the thermal paper deteriorates. As technology advances, we won't see machines that use thermal paper anymore.

The Committee felt that perhaps this rule should be placed in the Rules of Court in Part II. Mr. Peterson MOVED a substitute motion that the material on pages 26 § 27 be placed in Rule 2.2 and that it be entitled "Facsimile Transmission". (See page 3 for previous motion to approve proposed Rule 5.1(a) NDRCivP). Mr. Kautzmann seconded the motion. Mr. Peterson included in his motion with consent of the second, to amend the language by deleting line 8, page 26 and inserting in lieu thereof "complies with or exceeds category group 3". The sentence would then read "Only facsimile transmission equipment that complies with or exceeds Category Group 3 shall be used for filing in accordance with this rule." and deleting on line 12, page 26 "the following to the court: (1) a $5.00", deleting line 13 and deleting on line 14 "document; and (3)". The sentence then would read "Within 5 days after the court has received the transmission, the party filing the document shall forward the applicable filing fee, if any." It was questioned as to whether the fax document would be the original. If it is, the last phrase appearing on line 5, 6 and 7, page 26 should also be deleted. The motion CARRIED. Judge Leclerc voted no and wished to have his vote recorded in the minutes.

Mr Peterson MOVED to amend the language by deleting on line 5, page 26 "and the filed", deleting line 6 and inserting "and the filed facsimile shall be the original". Mr. Kraft seconded the motion. Discussion followed on the pros and cons of using the facsimile as the original. Mr. Peterson withdrew his motion with the consent of the second. Judge Glaser MOVED to amend line 2, page 26 to read "(a) Filing. Papers required or permitted to be filed may be filed with". He indicated that this is the same as the language appearing in Administrative Rule 21. Mr. Bucklin indicated that perhaps it should track Rule 5. Professor Kraft seconded the motion. It was agreed to delete the word "court" on line 3, 5, 10 and 12, page 26 and replace it with "clerk". This was made a part of Judge Glaser's motion with the consent of the second. Motion CARRIED.


Ms. Schmitz MOVED to amend lines 24 thru 42 on page 27 by deleting and inserting in lieu thereof "all orders and warrants and shall have the same force and effect as the original". Mr. Peterson seconded the motion. The Committee discussed the problem of originals versus fax. This is a far different matter from the filings dilemma. Some are copies, i.e., complaints, affidavits and warrants. Judge Glaser indicated that Subdivision (b) needs direction for the filing of these documents. There is no direction as to what to do with the original. Judge Leclerc indicated that the rule should be set up differently - (a) should be permitted use - (b) would be the technical material. Motion CARRIED.


(a) Filing. Papers required or permitted to be filed may be filed with the clerk by facsimile transmission. Filing shall be deemed complete at the time that the facsimile transmission is received by the clerk and the filed facsimile shall have the same force and effect as the original. Only facsimile transmission equipment that complies with or exceeds category Group 3 shall be used for filing in accordance with this rule.

Within 5 days after the clerk has received the transmission, the party filing the document shall forward the applicable filing fee, if any.

Upon failure to comply with the requirements of this rule, the court in which the action is pending may make such orders as are just, including but not limited to, an order striking pleadings or parts thereof, staying further proceedings until compliance is complete, or dismissing the action, proceeding, or any part thereof.

(b) Issuance of orders or Warrants. Facsimile transmission may be used for the issuance of all orders and warrants and they shall have the same force and effect as the original.

Proposed Rule 5 NDRCivP

The Committee then reviewed the rule drafts for service by fax. Mr. Bucklin believes that the service rule should be placed with Rules of Court 2.2 as (c) under permitted use, however, criminal procedures are contained in Rule 49. Mr. Peterson MOVED to approve Proposed Rule 5, NDRCivP. Ms. Schmitz seconded the motion. The question presented was how it would work if we did not have a certificate of service.


Mr. Kapsner MOVED a substitute motion to eliminate everything after the word "transmission" on line 25, page 31. His reasoning for this is because the requirement should be the same as it is for service by mail. Mr. Lamb seconded the motion. Mr. Kautzmann indicated that the language on lines 27 thru 30, page 31 are needed for proof. We assume a post office will deliver the mail. Here it would be very easy to get a wrong number or a wrong identification symbol of the attorney. Rule 4 (i) § (j) tell us what is needed for proof of service. Judge Glaser suggested that the word "state" should be deleted and the word "include" inserted at line 28, page 31. He also felt that the last sentence starting at line 27 thru line 30, page 31 should be placed in Rule 5(f). Mr. Kapsner withdrew his motion and MOVED that the last sentence be moved to Rule 5(f) and to delete the sentence on lines 25 to 27, page 31 and to approve the first sentence on line 23 thru 25. Ms. Schmitz seconded the motion. Motion CARRIED. Mr. Peterson's motion to approve CARRIED.


(a) Service--When required. * * *

(b) Service--How made. Whenever under these rules service is required or permitted to be made upon a party represented by an attorney, the service must be made upon the attorney unless service upon the party is ordered by the court. Service upon the attorney or upon a party must be made by delivering a copy to the attorney or party or mailing it to the attorney or party at the attorney's or party's last known address or, if no address is known, upon order of the court by leaving it with the clerk of the court. Delivery of a copy within this rule means: handing it to the attorney or to the party; or, leaving it at the attorney's or party's office with a clerk or other individual in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the party to be served has no office, leaving it at the party's dwelling or usual place of abode with some individual of suitable age and discretion then residing therein. Service by mail is complete upon mailing. Service may be made upon a party represented by an attorney by facsimile transmission.

(c) Service--Numerous defendants. * * *

(d) Filing. * * *

(e) Removal of pleadings for service. * * *

(f) Proof of Service. Proof of service under this rule may be made as provided in Rule 4 or by certificate of an attorney showing that hethe


attorney has made service pursuant to subdivision (b). Proof of service for papers served by facsimile transmission shall include the date and time of service and the facsimile telephone number or identification symbol of the receiving attorney.


Ms. Schmitz MOVED to approve proposed Rule 6, NDRCivP, regarding Service by Fax. Mr. Kautzmann seconded the motion. Mr. Lamb indicated that he wanted three days allowed as in service by mail. The Committee discussed whether it should be treated differently from personal service. Motion CARRIED.


(a) Computation. In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. Service by facsimile transmission must be completed by 5:00 PM, receivers time, on a weekday, which is not a legal holiday, or service shall be deemed to be made on the following weekday, which is not a legal holiday.

(b) Enlargement. * * *

(c) Unaffected by expiration of term. * * *

(d) For motions--Affidavits. * * *

(e) Additional time after service by mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, three days must be added to the prescribed period. Service by facsimile transmission shall not be deemed service by mail for purposes of this rule.


Judge Leclerc indicated that someone should attend this seminar in December. Justice Gierke will


approach the court and request approval for one person to attend this seminar.


Judge Leclerc asked that Local Rule 1 from the Northeast Central Judicial District be moved to the next meeting. This request was based on a conversation he had with Judge Smith. Judge Smith was unable to attend today's meeting and unless there was unanimity for this rule he wished to have the matter continued. It was deferred to the next meeting since several Committee members have questions concerning the Rule.


Professor Kraft MOVED to approve the proposed Rule 35 NDRCivP. Ms. Schmitz seconded the motion. Mr. Kapsner MOVED a substitute motion to delete subdivision (c). (*See page 14 for continuation).

Ms. Schmitz moved to adjourn. Judge Hilden seconded the motion. The meeting was adjourned until October 26th.


The meeting was called to order at 8:30 a.m., October 26, 1990 by Justice H.F. "Sparky" Gierke, Chairman. The attendance was the same as the afternoon session on October 25, 1990.


The Committee discussed at length what to do with the draft Legislative proposal. They decided that there were 3 alternatives:

1. Tell the Legislature that something needs to be done;

2. Amend what is currently in front of the Committee.

3. Appoint a Subcommittee to recommend legislation to the Supreme Court for approval as an agency bill.

Mr. Lamb pointed out that there was a 4th alternative and that was to simply do nothing. Mr. Kapsner pointed out that he did not like contempt set up as remedial versus punitive. Judge Glaser gave a


brief account of the Committee's 8 year study of the contempt issue.

Judge Glaser suggested that the term "Court" simply means "court of record of this state". He pointed out that staff has brought this matter to the Committee before, they had gone through it and the Committee should only be considering the housekeeping amendments today. Mr. Bucklin stated that maybe we should request to have a study resolution on this.

Mr. Bucklin MOVED the following resolution: "Be it Resolved that the Legislature be asked to form a study committee to propose legislation to consolidate and improve the statutes on contempt. Further resolved, that if a study committee is formed by the legislature that the present work product be given to the legislative study committee as a suggested mode of such consolidation. Further resolved, that if the Legislature does not form a study committee in 2 years that this present work product be brought back to this Committee to be placed on their agenda." Mr. Peterson seconded the motion. Judge Glaser stated that we would have more of an impact if we recommend this legislation to the Supreme Court as an agency bill. Mr. Bucklin withdrew his motion for a resolution. Judge Glaser MOVED to amend the term "Court" by deleting at line 4, page 64 the word "and" and by deleting lines 5-8, page 64. Mr. Bucklin seconded the motion. Motion CARRIED.

Judge Glaser MOVED that the recommendations made by staff counsel be forwarded in legislative form to the Supreme Court and to recommend that it be submitted as an agency bill to the Legislature. Mr. Peterson seconded the motion. Mr. Peterson MOVED to amend the language on page 78 that following the cite on line 5 to insert "The fine in any case may not be more than $500 and the imprisonment may not be more than 30 days". Ms. Schmitz seconded the motion. Motion CARRIED. Judge Glaser's original motion CARRIED.


Rule 35 FRCivP was amended to include a mental examination by a psychologist. The proposal the Committee reviewed amended the North Dakota Rule so that it would track the Federal Amendment. Mr. Kapsner MOVED to delete psychologist and to insert psychotherapist in order to make it consistent with Rule 503 NDREv. Mr. Peterson indicated that we don't need a definition since there is a cross-reference to


Rule 503. Mr. Kapsner withdrew his motion and MOVED to delete Subsection (c). Ms. Schmitz seconded the motion. Motion CARRIED. Professor Kraft's original motion to approve proposed Rule 35 NDRCivP CARRIED.


Rule 26.1 FRAppP is a new rule that became effective December 1, 1989. The purpose of the rule is to assist judges in making a determination in whether they have any interest in any of the party's related corporate entities that would disqualify them from hearing the appeal. Again the Committee reviewed this new federal rule in order to determine whether or not we should track it in North Dakota. Judge Leclerc indicated that Ron McLean had a problem with the rule in that it may involve hundreds of pages of disclosure material. Judge Glaser indicated that we shouldn't be following what the Feds do all the time. Mr. Kapsner stated that if we do this, it should be mandatory at the district court level as well. The proposed amendment to Rule 28(g) provides that the corporate disclosure pages would not be counted in the length of the brief. Mr. Peterson MOVED not to approve the proposed Rule 26.1 and Rule 28(g). Professor seconded the motion. Motion CARRIED.


The proposed amendment tracks the federal amendment whereby additional time for filing will be granting whenever a clerk's office is inaccessible on the last day of filing due to weather or other conditions. The amendment would also be made to Rule 6(a) NDRCivP and Rule 45(a) NDRCrimP. Mr. Bucklin MOVED to adopt the proposed amendment to Rules 26 NDRAppP, 6(a) NDRCivP and 45(a) NDRCrimP. Judge Leclerc seconded the motion. Judge Hilden indicated that he felt that this amendment would be an invitation for abuse. Professor Kraft felt that the standard is to subjective. Mr. Kapsner agreed indicating that the "other conditions" language is too vague. Motion FAILED.

RULE 32(c) and 41(e) NDRCrimP

The proposed amendment to Rule 32 tracks the federal amendment by changing the disclosure of the presentence report, by changing the reasonable time language to at least 10 days prior to sentencing and


also to delete the section requiring that the report be returned. The amendment to Rule 41(e) tracks the federal amendment which provides that an aggrieved person may seek the return of property that has been unlawfully seized and a person whose property has been legally seized may seek return of the property when aggrieved by the government's continued possession of it. Judge Glaser stated that sometimes we should be following the federal amendments, but, a lot of times we adopt the substantive amendments rather than just the procedural amendments. He cautioned that we need to take a closer look at the federal amendments. Mr. Peterson MOVED to adopt Rule 32(c) and 41(e) NDRCrimP. Mr. Kapsner seconded the motion. Motion CARRIED.

RULE 41(a) NDRCrimP and Rule 609 NDREv

The proposed amendments to Rule 41(a) NDRCrimP and Rule 609 NDREv track the proposed federal amendments. If there is no congressional action taken on these amendments the rules will go into effect on December 1, 1990. Ms. Schmitz MOVED to approve Rule 41 without (i) and to end the new language at line 12, page 100 after the word "jurisdiction" and to delete the rest of the material. Her motion died for a lack of a second. It was the consensus of the Committee to leave Rule 41 NDRCrimP alone.

Mr. Kapsner MOVED to delete the underscored language on lines 8, 9 and 10, page 101 of Rule 609 NDREv. Motion died for lack of second. Ms. Schmitz MOVED to table this proposal until the next meeting so that the Committee can review the Federal Advisory Committee's notes. Judge Hilden seconded the motion. Motion CARRIED.


The form following Rule 40 NDRCivP is not consistent with the rule and a proposed amendment was reviewed by the Committee. Mr. Peterson MOVED to approve the amendments. Ms. Schmitz seconded the motion. Motion CARRIED.

Mr. Bucklin stated that he is bothered by the fact that an attorney can't certify that all discovery is in fact completed. Technically, if someone is holding up the show, you can't certify that it is all done. Ms. Schmitz indicated that there are other problems also, i.e., the lawyer has to certify that all the pleadings are filed. Unless the attorney goes


through the file, he or she doesn't know whether or not everything has been filed by opposing counsel. It was suggested that this matter be placed on the next meeting agenda. Mr. Bucklin will send a letter to staff concerning this issue.


A letter from Judge Glaser was reviewed concerning venue. A lot of times cases are venued in Burleigh County not for the convenience of the parties but rather because of the costs. The attorney's fees may be lower because the attorney's are here in Bismarck and the expert witness fees may be lower. Professor Kraft indicated that maybe it's time to start pulling procedural matters out of the Century Code. The statute is not clear on changing venue for the convenience of witnesses. Judge Glaser suggested that we study all venue statutes and that staff put all procedural matters into rule form. Mr. Peterson indicated that if we are going to look at this we shouldn't be giving the defendant the advantage. Professor Kraft stated that we didn't follow the federal rules because they are so different and that is why we proceeded to operate with the statutes. We should be able to make the changes based upon the statutes. Professor Kraft MOVED to study all venue issues, to draft rules addressing venue and to make necessary legislative changes. Ms. Schmitz seconded the motion. Members were urged to convey their concerns to staff counsel. It was mentioned that Juvenile Court venue should be included in this study. Motion CARRIED.


Judge Gene Gruber's letter to the Committee was reviewed. Judge Gruber proposed a change to Rule 5.1, NDRCrimP in order to recognize and distinguish between the different types or categories of inadmissibility. The Committee felt that the proposal Judge Gruber submitted did not solve the problem that he addressed. The Committee felt that the rule should not be amended.


Staff was requested by Mr. McLean to prepare a rule for the Committee to consider regarding the restatement of interrogatories in the answer. An amendment to Civil Rule 33 was reviewed by the


Committee. Mr. Kapsner MOVED to approve the amendment to Rule 33 NDRCivP. Professor Kraft seconded the motion. Committee members pointed out that it is much easier for everyone if the question is restated rather than flipping through documents. Motion CARRIED.


Mr. Bucklin indicated that he didn't believe that there was a problem with the rules and is not in favor of making any amendments at this time. Mr. Peterson MOVED that the Committee take no action on the letter of request. Mr. Bucklin seconded the motion. Motion CARRIED. Judge Leclerc abstained and requested that his vote be recorded in the minutes.


Mr. Peterson feels that we should take action in the area of sealing court records. Sometimes records are sealed without explanation. Judge Glaser indicated that he questioned whether or not this is a procedural matter. It seemed to him that this was substantive. Perhaps this would be better handled by another Supreme Court Committee. In reviewing the issue concerning public access to court files the Committee discussed whether or not a person should have a legitimate purpose in reviewing the file. Mr. Peterson MOVED that staff counsel research what the other states are doing concerning the issue of sealing court records, to check whether there has been any case law concerning the Texas rule, and to inquire as to whether a different Supreme Court Committee should review this matter. Ms. Schmitz seconded the motion. Motion CARRIED.


Court reporters have apparently encountered problems under Rule 10(b) NDRAppP. When the appellant orders a transcript of the proceedings, that order is not served on the reporter which is contrary to Rule 10(b) and due to this problem, they often times do not have the full 50 days to prepare the transcript. The reporters are adamant about having 50 days from the service of the order for preparation of the transcript, however, the rules provide for 50 days from the date of filing the notice of appeal. In


reviewing the minutes of the Joint Procedure Committee, there is no explanation as to why this rule keyed all time limits to the filing of the notice of appeal.

Mr. Peterson MOVED to adopt staff counsel's recommendation that Rule 10(b) not be amended. Judge Leclerc seconded the motion. Judge Glaser indicated that the reporters are the ones with the problem and all they want is the full 50 days. There must be something we can do to correct this. Discussion followed indicating that it is not the clerk of the Supreme Court's problem and it is not the court reporter's problem. Perhaps, the clerks of the district court should be refusing the filing if it is not complete. The attorneys should be following the rules.

Judge Glaser asked why the Supreme Court starts processing the appeal when they don't know if an appeal is really coming. If the transcript is not ordered maybe it is not a true appeal. Often times the notice of appeal is filed simply to initiate a settlement. He further noted that an appeal is perfected with the notice and the other requirements can be safely avoided. It was suggested that perhaps we could amend 3(d) NDRAppP and 10(b) NDRAppP in order to take care of this problem by reminding the lawyers that the order for transcript must be filed at the same time that the notice for appeal is filed. Mr. Peterson's motion to accept staff's recommendation FAILED.

Mr. Peterson MOVED that staff counsel draft an amendment to Rule 3(d) NDRAppP indicating that the service of notice of appeal goes to the court reporter and to amend Rule 10(b) NDRAppP to indicate that the order for transcript must be filed at the time the appeal is filed. Ms. Schmitz seconded the motion. The motion CARRIED.


The proposed amendment to Rule 11.1 NDROC was suggested by Mr. Bucklin. The amendment would leave the rule so that it provides that a non-resident attorney could appear provided he or she has, as an associate, "an attorney admitted and licensed to practice law in this state" without the further qualification that the North Dakota licensed attorney also be a resident of North Dakota. Professor Kraft moved to approve the amendment. Ms. Schmitz seconded. Motion CARRIED.



Apparently, staff attorneys for respective Child Support Enforcement Units will be asked to assume some representation not only for the obligees but also for the obligors in support matters. On the surface, this may present a professional and ethical dilemma. Apparently, one state has passed a statute or an appropriate rule in order to enable such representation. The Committee felt that there was no action to take at this time, but, it will monitor the situation and wait until after the Legislature meets to see if anything was done concerning this issue. Staff also indicated that she received a call from Pat Conrad on October 23, 1990 concerning Uniform Child Support Forms. The Committee has been invited to have representation on the committee drafting the uniform forms and we've also been requested to include those forms in our rule book. The Committee indicated that they do not see any need to have a person sitting on that Ad Hoc Committee and they do not wish the forms to appear in the rule book.


The Committee reviewed a letter from Chief Justice Erickstad concerning the Judicial Master Program whereby 3 tasks were referred to the Joint Procedure Committee to undertake. The Committee felt that the letter was vague and did not explain exactly what the Judicial Planning Committee expected the Joint Procedure Committee to do with these tasks. Mr. Peterson MOVED that the minutes reflect that our Committee considered the letter of request. Judge Leclerc seconded the motion. Further discussion was held on whether any action should be taken on the letter of request. Judge Leclerc MOVED a substitute motion to defer this matter to the next meeting so that we may discuss the task assignments with Justice Levine. Mr. Lamb seconded the motion. Motion CARRIED.


Judge Berning requested that the Committee consider arbitration in certain specified civil cases. However, he requested that this material be removed from this meeting agenda and considered at a later time.



The Committee reviewed a letter from Mr. David Boeck concerning the lack of procedural guidance provided by statutes and court rules concerning original jurisdiction proceedings. Mr. Peterson MOVED that this matter be reviewed and researched by staff counsel. Mr. Kautzmann seconded the motion. Motion CARRIED.


Judge Glaser wrote to the Committee indicating that at sometime the Committee gave some thought to superseding § 29-15-21, N.D.C.C., by rule, since the demand for change of judge is a procedural process. He suggested that this law be redrafted in rule form and indicated that there is an administrative rule to review also when reviewing and researching this issue. Mr. Peterson MOVED to consider this at the next meeting. Mr. Bucklin seconded the motion. Motion CARRIED.


Judge Glaser wrote to the Committee concerning problems in the exercise of peremptory challenges. When you have multi-parties on a "side" in a civil case, it is difficult to assign the peremptories since the term "side" is not defined. Staff counsel indicated that she had looked at this issue prior to the meeting, however, she could not find any state statutes or rules where the term "side" was defined. Mr. Kautzmann MOVED that the issues presented in Judge Glaser's letter be reviewed and researched by staff counsel. Mr. Bucklin seconded the motion. Motion CARRIED.


Judge Hilden indicated that when the Committee reviewed Rule 32(c) NDRCrimP concerning presentence reports, he was out of the room and he asked that the Committee reconsider their action because the Parole Office requested an opportunity to come in and talk to the Committee on this issue. He would like the Committee to reconsider so that the Parole Office could appear before the Committee at its next meeting. Mr. Lamb MOVED to reconsider. Mr. Kapsner seconded. Motion CARRIED.



It was agreed that the next meeting would be held after the Legislative Session, probably some time in May.


The meeting was adjourned at 12:30 pm. The next meeting will tentatively be held at the end of May, 1991.

Pam Ciavarella