Joint Procedure Committee Meeting
Scheduled on Thursday, November 18, 1971 @ 1:30 PM
MINUTES OF MEETING
Joint Committee of the Judicial Council
and the State Bar Association
for the Adoption of Rules of Criminal Procedure
November 18, 1971
The meeting was called to order at 1:30 p.m., November 18, 1971, in the hearing room of the Supreme Court.
Members present:
Supreme Court Judge Ralph Erickstad;
Court Judge Kirk Smith;
District Judge Norbert J. Muggli;
First Assistant Attorney General Paul Sand;
District Judge Roy A. Ilvedson;
Mr. John Shaft;
Mr. John Graham;
District Judge Eugene A. Burdick;
Mr. Roger Persinger.
Also present were
Charles M. Travis, Criminal Code Revisor,
and Mrs. Dolores Green, Secretary.
Former Supreme Court Judge William S. Murray arrived late Thursday and Court Judge Gerald G. Glaser arrived for Saturday's portion of the meeting.
Absent were: Retired Supreme Court Judge James A. Morris and Mr. Robert L. Vogel.
The meeting was called to order by Chairman Erickstad.
Mr. Travis made some initial administrative remarks.
He proposed the following items for the committee's consideration:
(1) Acquiring of a senior law student to work as an assistant to the Criminal Code Reviser in an internship program which would include a period of employment for ten weeks during the second semester of classes at the University of North Dakota School of Law.
(2) He gave an explanation of materials which were submitted to the individual committee members together with copies of the minutes of the September 1971 meeting. This material included:
(a) A copy of the minutes of the September 1971 meeting.
(b) A list of the motions which the committee acted upon during the September 1971 meeting.
(c) A list of the rules which the committee will be reviewing again and which have been changed by the proposed amendments to the federal rules.
(d) A list of the agenda items which the committee will be reviewing at the November 1971 meeting.
(e) Rule 26.1 as proposed by Roger Persinger.
(f) Proposals for Rule 50 and 51, respectively by John Graham.
(g) Rule 41 (a), (b) and (c) as adopted at the September 1971 meeting.
(h) Rule 6: Explanatory Note as adopted during the September 1971 meeting.
(i) Note reflecting disposition of Rule 24.1, that is to drop this Rule from consideration in the Rules.
(j) The proposed Bill to amend Section 27-05-22.
(3) Mr. Travis next gave an explanation of the materials contained in the folders distributed at the meeting. The folders contained the following materials:
(a) An up-to-date roster of the committee members with their phone numbers and addresses.
(b) A copy of the agenda as previously submitted with the minutes and reflecting the work which is hoped to be accomplished by the committee during this working period.
(c) Copy of Rule 41. Search and Seizure, reflecting the work already accomplished by the committee at the September, 1971 meeting, as well as the working draft of the proposed amendment to the federal rule 41.
(d) Proposal for Rule 26.1 entitled Determination of Foreign Law submitted by Roger Persinger. Also included is Idaho's proposed Criminal Rule 26.1 entitled Foreign Law.
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(e) Proposal for Rule 46 entitled Release from Custody, as proposed by Roger Persinger. Also enclosed in conjunction with Rule 46 are explanatory notes for Rule 46.
(f) Copy of John Graham's proposal for Rule 50. Calendars.
(g) Proposal for Rule 51. Exceptions Unnecessary, by John Graham.
(h) Copy of Rule 54 by Judge Smith and also included were explanatory notes for this Rule.
(i) Consideration of Rule 11, working draft reflecting the proposed amendments to the federal rule.
(j) Text of a letter from Mr. Robert Vogel reflecting his suggestions for Rules 11, 37, 39 and 45 to be considered by the committee at this meeting.
(k) Proposal for Rule 4 as prepared by John Shaft. This includes explanatory notes for this Rule.
(1) Copy of the Preamble and the Declaration of Rights for the new Constitution as prepared by the Constitutional Convention Committee on adoption of the Constitutional Convention.
(4) Mr. Travis then discussed some additions and corrections that he wished to make to the minutes as submitted. They are as follows:
(a) To add on page 2 of the minutes after the first incomplete paragraph Judge Muggli's original draft of his explanatory note to Rule 6:
"RULE 6: Explanatory Note (Source - meeting of May 3-4, 1968, Page 4).
"The committee recommends that no rule be adopted concerning grand juries but that the Rule No. 6 be retained for possible future use. Section 8 of the North Dakota Constitution provides that the legislature may change, regulate, or abolish the grand jury system. The committee interprets this provision of the State Constitution as prohibiting the legislature from delegating any rule making or other authority to change or modify grand jury procedures. The 1971 legislature adopted a complete revision of our grand jury statutes (Chapter 315 of the 1971 Session Laws). (Chapter 29-10.1 of the North Dakota Century Code). A constitutional convention has also been called and will meet next year and Section 8 of the present constitution may very well be changed."
(b) On page 5 in the next to last paragraph where it reads, "September 17 minutes", add 1970 after September 17;
(c) On page 6 in the first large paragraph beginning with "John Graham explained", (the fifth line) after "presiding judge", the word to should be stricken. On the seventh line after, "pursuant to Section l.6", the "1.6" should be changed to read Section 116. At the bottom of that paragraph, insert 1970 after September to reflect the September 1970 meeting. (This change should also be reflected at the top where it reads September meeting.);
(d) On page 10 in the second complete paragraph on the third line the paragraph that starts, "Judge Burdick explained", where it reads "the James Earl Ray case as a case of point", of should be changed, to read "case in point";
(e) On page 11 in the last sentence of the first incomplete paragraph the name "Ray Rabinowitz", should be changed to Jay Rabinowitz, and in the last complete paragraph on the seventh line beginning with, "warrant is invalid of", the word "of" should be changed to or. This reflects Mr. Travis' changes to the minutes.
Chairman Erickstad called for additions or corrections to the minutes; there being none he called for approval of the minutes. Judge Ilvedson made a MOTION to approve the minutes as corrected. Mr. Graham seconded the motion.
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There was some discussion by John Graham concerning the procedure for handling additions and corrections to the minutes. Following discussion the question was called and the motion carried.
Judge Glaser MOVED that all additions and corrections to the minutes in the future be treated by the use of an errata sheet. Motion was seconded by Mr. Sand and Mr. Graham. There was no discussion and the motion carried.
It was finally resolved that simple errors would be corrected by an errata sheet and for major changes there would be a republication of the page to reflect the new changes.
The chairman called for committee consideration of the proposal made by Mr. Travis concerning the hiring of a law school intern to work for a period of ten weeks during the second semester of law school. This would be in lieu of a second Code Reviser who is at this time unavailable. Judge Smith made a MOTION that Mr. Travis be permitted to recruit an intern for a period of ten weeks during the second semester of school at a salary not to exceed the funds allotted or budgeted for the program. This motion was seconded by John Graham. There was no discussion and the motion carried.
MOTION was further made by John Shaft and seconded by Judge Smith that if such a person was recruited that Mr. Travis have the authority to hire at a maximum of $600.00 a month. No discussion a the motion carried.
Judge Erickstad suggested that before going into Agenda Item #1 that he relinquish the chairmanship on a temporary basis to various members of the committee so that each member will have an opportunity to chair the proceedings. Judge Muggli was appointed acting chairman to preside over Agenda Item #1.
Agenda Item #1: Complete the work on Rule 41 (d), (e), (f), (g) (h) and Judge Smith's Rule 41. Search and Seizure. The committee adopted the amended draft to the Federal Rules to be the working draft of the committee. Sections 41 (a), (b) and (c) were adopted at the meeting of September 18, 1971. (See pages 74-76 of Amendments to Federal Rules January 1970) (48 F.R.D. 547).
The chairman called on Judge Smith to read his proposed draft for Rule 41 (d), (e), (f), (g) and (h). Judge Smith, before reading the proposed draft, suggested making the obvious changes from the proposed amended Rule 41 of the Federal Rules. These changes reflect any obvious changes from the Proposed Federal Amended Rule that is, to delete the word federal before magistrate.
Judge Smith read Rule 41 (d) and (e):
"(d) Execution and Return with Inventory. The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken, or shall leave the copy and receipt at the place from which the property was taken. The return shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, if they are present, or in the presence of at least one credible person other than the applicant for the warrant or the person from whose possession or premises the property was taken, and shall be verified by the officer. The magistrate shall upon request deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant."
"(e) Motion for Return of Property. A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property on the ground that he is entitled to lawful possession of the property which was illegally seized. The judge shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted the property shall be restored and it shall not be admissible in evidence at any hearing or trial. If a motion for return of property is made or comes on for hearing in the court trial after an indictment or information is filed, it shall be treated also as a motion to suppress under Rule 12."
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Following the reading, Judge Smith made a MOTION that Rule 41 (d) and (e) be adopted as read. By way of comment to the draft, Judge Smith suggested that in making the inventory, it might be impractical to make inventory at the place of arrest. He then stated that there are problems in making it at a later time as well, and suggested that perhaps the committee could make some determination for this very practical problem and include these remarks in the comments as to the committee's solution to this problem.
Paul Sand inquired as to the disposition of a case where the inventory is not made in the presence of the individual; what would happen to the evidence seized if the provisions of the Rule are not followed?
Judge Erickstad responded to the question by stating that this particular issue could be raised in regard to any of the Rules that relate to what the individual should accomplish. He suggested that the Rule be set up to encourage people to do the right thing. He further suggested that subsection (e) might shed a little light on the question.
Judge Smith, commenting on Rule 12, stated: "It would seem that the motions were available only if there was unlawful search and seizure. It may be a question if someone had made a scrivenous error and forgot to include an item, that this would render the seizure of the item unlawful for failing to have done so, but this could hardly be said to have rendered the search unlawful for having gone to the place without a valid warrant in the first place. So it would seem that the quest that we are talking about, "inventory", will not be reachable under this type of motion to return and the motion would not necessarily be treated as a motion to suppress. It would better be treated under similar rules that are used to correct omissions and errors in the complaint or information if it can be shown that the goods attested to actually were there; further, that the omission from the inventory was inadvertent and not done to prevent the raising of a defense at trial for some other valid reason. Otherwise we would just have another unreasonable technicality which could be enforceable to the extent of excluding that evidence or all the evidence from admissibility."
Acting Chairman Muggli suggested that failure to make a proper inventory goes to the very basis of search and seizure. However, he questioned whether there was any case law regarding this point.
Mr. Graham suggested that the committee look to Rule 52 (a) of the Federal Rules, Harmless Error. He suggested that the type of action discussed might be considered harmless error.
Judge Erickstad suggested that this type of action would have to be judged on a case by case basis to determine whether it was harmless error or not.
Acting Chairman Muggli suggested that the point raised by Mr. Sand suggested a method by which the committee could avoid this question at a later time by eliminating the protection involved.
Judge Smith pointed out that a related consideration to the issue of the inventory occurs in cases involving drugs where there is a critical quantity of material involved. This suggests that something should be fitted into the Rule to make it a little more restrictive, by requiring the authorities to specify the quantities or volumes of goods obtained in the search. A practical problem concerning marijuana might be in citing the quantity but not indicating whether it is liquid volume; this issue is not so much for the protection of the defendants but rather to prevent seized goods from getting back into traffic.
Judge Ilvedson suggested that the rights given to the property owner are important and that they have been broadened to the point where it is not difficult for the officer to follow the law; that is, he must give a receipt and a copy of the warrant to either the person present at the premises or the person owning the property. He pointed out that the rules, as they exist, are not hard to follow.
Judge Ilvedson noted an error in the re-printed portion of the worksheet for Rule 41 (d), (e), (f), (g) and (h), that is, on page 14 of the minutes under subsection (e) in the first sentence, there is a phrase left out. The correct language may be found in the Proposed Amendments to the Federal Rules of January 1970 on page 74, line 77. To correct the error, insert after "warrant and a receipt", on page 14 of the minutes and the working draft, the phrase, "for the property taken or shall leave the copy and receipt".
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Judge Burdick suggested that the language in the present Rule does not accomplish what he desires, since he interpreted the Rule as giving the person who takes custody of the property, the option of issuing a receipt to the person at the time of taking, or posting a copy at the door whether anyone was present or not. Judge Burdick felt that the posting at the door should be limited to cases where the person was not on the premises. Judge Burdick further suggested that the language should be geared to whether or not the person whose premises were searched was present; that is, if he is present, there should be no choice of whether the inventory shall be posted or not.
Judge Smith suggested that the committee insert a provision in their Rule to the effect that technical errors in the execution of the inventory requirements under exigent circumstances should not be grounds for the suppression of the evidence.
Judge Burdick suggested that this be decided on a case by case basis.
Acting Chairman Muggli questioned the reasonability of the proceedings; that is, if the search and the seizure is correct, that judges instead of excluding the evidence, might just turn around and require that the inventory be made up properly at a later date. A short discussion ensued as to the practicality of an inventory.
Mr. David Peterson of the Constitutional Convention arrived to brief the committee on the work of the Constitutional Convention on matters which might effect or have some direct bearing on the criminal rules. Mr. Peterson, in his discussion, referred to the Final Draft that the Committee had adopted. The sections which he noted for attention by the committee were:
(1) Section 5, which relates to Habeas Corpus. The intent of the Constitutional Convention is that the title be left as Habeas Corpus but in order that the Constitution will be readily understandable to a layman, the description is couched in layman terms. He noted, however, that there is no substantive change in the meaning of the term, Habeas Corpus;
(2) Section 7 of the old Constitution has had several substantive changes in the jury trial section. The Convention has added the term "regardless of age or station." That is, the right of a trial shall remain inviolate to all regardless of age or station; that it was fully the intent of the Committee to allow the right of trial by jury to juveniles. The second substantive change in Section 7 authorizes the Legislature to subscribe the number of jurors at trial and also the number of jurors required for a verdict. This was not so under the old constitution's provision;
(3) Section 8 had one substantive change which was to lock the grand jury system into a measure of permanence through constitutional provision, whereas the 1889 Constitution provided that legislature could abolish the grand jury;
(4) The use of the term indictment and information is kept in the title of Section 8, while the body of the section uses the term, "accusation" to explain more clearly to a layman what an information is.
Judge Burdick raised a question as to the propriety of a juvenile's right to a jury trial under Section 7. There ensued a great deal of discussion on this point. John Graham raised a question as to the use in Section 8 of the term 'accusation' instead of 'information' and inquired whether this would force the committee to re-evaluate the use of the term 'information' throughout the rules. David Peterson responded, stating that it was the intent of the committee to keep the same interpretation of the term, but that the use of a different term was designed for ease in interpretation by the layman. Judge Erickstad was critical of the language change for he felt that by changing the language, the result generally is to change the meaning, and this would be reflected by future interpretation in an appellate court. Judge Muggli was critical of jury trials in all civil cases and questioned whether this would be feasible or appropriate in light of the many personal injury cases are brought to trial in recent years. In responding to
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this, Mr. Peterson suggested that some mention of this was made in committee, and that it was the consensus of the committee that the right to a jury trial be held in both civil and criminal cases and should be a constitutionally entrenched right. He added that the committee tried to compensate for this by authorizing the legislature to reduce the number of jurors in certain cases.
Judge Erickstad noted that in many parts of the country the courts have been given the power to set the number of jurors in certain instances. Judge Burdick suggested that Section 6 of the Bill of Rights portion of the Constitution, that is, the Bail section, precluded the establishment of a preventive detention section which he felt was badly needed by the country. Mr. Travis raised the point regarding Section 6, as it relates to the abolishment of the death penalty. He suggested that if the death penalty were abolished, this would preclude any reference to capital offenses, therefore the reference in Section 6, "unless for capital offenses", would not apply. With that Mr. Peterson concluded his presentation to the group.
The chairman expressed his appreciation for Mr. Peterson's time and effort in his presentation. Judge Erickstad brought to the committee's attention the requirement for meeting four or five times between the date of this meeting and the July 15th deadline set to submit the work of the committee to the Court. The reaction to this proposal by the committee was favorable and Judge Erickstad suggested that before the meeting adjourn, that the committee arrive at a tentative meeting date for these meetings. The committee returned to work on Rule 41 (d).
Judge Smith made a MOTION to adopt Rule 41 (d) and (e) as the committee had amended from the proposed Federal Rule. [See page 3 Supra for full text of Rule 41 (d).] The motion was seconded by Judge Ilvedson and the chairman opened up the motion for discussion.
Judge Burdick pointed out that the act, as adopted from the proposed federal rule, failed to indicate when the receipt should be given. The officer has the alternative of leaving a copy of the warrant and the receipt at the place from which the property was taken, irrespective of whether anyone was present. He felt that the right to leave the copy should hinge on whether someone was present.
Judge Ilvedson suggested inserting the words, "if they are present" and dropping the "or" before "shall", after "the property taken", to resolve Judge Burdick's objection. The Rule then would read:
"The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken, if they are present, shall . . . etc."
Judge Burdick made a MOTION to adopt Judge Ilvedson's proposal as just read. Judge Ilvedson seconded the motion. Judge Muggli suggested that for grammatical correctness the inserting phrase should Include the word "or" so that it would read, "or, if not present, shall . . .". Judge Burdick agreed and suggested for consistency that in line 87, page 74 of the January 1970 Proposed Changes to the Federal Rules that the phrase also be inserted putting after the word or, if not present, in the presence . . . etc. There was no further discussion on the amendment and Judge Smith agreed to accept the amendment. There was a vote on the motion and the motion carried. The motion as carried changes Rule 41 (d) to read on line 79 and line 87 as follows:
(d) EXECUTION AND RETURN WITH INVENTORY. The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken, if he is present, or, if not present, shall leave the copy and receipt at the place from which the property was taken. The return shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, if they are present, or, if not present, in the
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presence of at least one credible person other than the applicant for the warrant or the person from whose possession or premises the property was taken, and shall be verified by the officer. The magistrate shall upon request deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant."
On the amendment for the grammatical change there was agreement in the form of a vote.
Acting Chairman Muggli directed that the record show that Judge Smith had accepted the amendment, and directed the committee's attention to the original motion on Rule 41 as amended and as applied to both subsections (d) and (e). Judge Erickstad suggested that the committee divide the two subsections and vote on them separately. A vote on the MOTION to adopt subsection 41 (d) was successful. The committee then went on to subsection (e) of 41.
Judge Burdick took issue on subsection (e), specifically as to the use of the district court as a proper court to make a motion for return of property. He felt that the committee should use the county court or possibly the magistrate who issued the warrant as the proper place for a motion for return of property. Judge Burdick suggested that by doing this he was trying to unburden the district court as the place for making the motion.
Judge Smith suggested that he was trying to keep the district court as the proper forum to make the motion for return of property. He also suggested that the problem was one of moving for corrective measures and motions to suppress a preliminary hearing. This would require the magistrate to pass on questions dealing with the admissibility of evidence at the trial and thereby provide a precedent for the trial court to do that which had been done in the magistrate's court. Another factor involved was that there were some magistrates with no formal legal training. As a result, Judge Smith had serious reservations concerning their determination of search and seizure, but that these matters should only be determined by the trial court.
Judge Burdick agreed that the motion for return of property be made in the trial court. Judge Smith noted that the committee had agreed with the principle that this should not be determined in a preliminary hearing by a magistrate who issued the warrant.
Judge Erickstad called the committee's attention to the explanatory note following the proposed Federal Rule 41 (e), which suggests that the drafting committee wanted to reduce the number of motions made in the district of seizure at the time of seizure and postpone such motions to the trial stage.
Judge Smith agreed then that the proper place for a motion for return of property would be in the trial court or court of trial jurisdiction. Judge Burdick raised the question concerning the proper place for the motion for a return of property when there was no trial. Judge Muggli pointed out that subsection (d) did not indicate the proper court to which return was to be made.
Judge Smith made a MOTION to adopt Rule 41 (e) as follows:
(e) MOTION FOR RETURN OF PROPERTY. A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property on the ground that he is entitled to lawful possession of the property which was illegally seized. The judge shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted the property shall be restored and it shall not be admissible in evidence at any hearing or trial. If a motion for return of property is made or comes on for hearing in the court of trial after an indictment or information is filed, it shall be treated also as a motion to suppress under Rule 12.
Roger Persinger seconded the motion. The motion carried by unanimous vote.
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Paul Sand noted for the record that his position on Rule 41 (e) was, "that more than harmless error is involved here because the Constitution talks about unlawful searches and seizures and if that search is lawful, then the mechanics in satisfying a rule do not constitute grounds for suppression of evidence. There might be some other remedies."
Judge Muggli concurred and wished to state that this was his position also in voting on Rule 41 (e).
Judge Smith read his proposal for Rule 41 (f) MOTION TO SUPPRESS. "A motion to suppress evidence may be made in the trial court as provided in rule 12."
Judge Smith MOVED the adoption of Rule 41 (f). The motion was seconded by John Shaft.
Judge Muggli, in considering rule 41 (f), called the committee's attention to the North Dakota Proposed Rule 12 as adopted on July 25, 1968. John Shaft noted for the record that he had reworked Rule 12 in light of the proposed changes to the Federal Rule and that it is substantially changed, but even with the changes, one specific pretrial motion would be a motion to suppress evidence on the ground that it has been illegally obtained. No further questions having been asked, a vote was called and the motion carried.
Judge Burdick questioned the use of the term "complaint" with indictment or information.
John Shaft responded by stating that the practice of the applicability of the Rules to the committee in the past had been to include the term "complaint" to reflect the municipal courts. Judge Erickstad commented that it might be well to include in the phrase "indictment and information" the word "complaint" since these rules, when adopted by the Supreme Court, will prevail and if the term "complaint" is not included it will thereby create an inconsistency.
Judge Burdick MOVED to include the term "complaint" after indictment or information. Judge Smith seconded the motion. There was no discussion and the motion passed. (Note that the motion as made by Judge Burdick for the record was combined to reconsider subsection (e) as well as for the change.)
Rule 41 (e) was amended as follows:
"If a motion for return of property is made or comes on for hearing in the trial court after an indictment, information, or complaint is filed it shall be treated also as a motion to suppress under Rule 12."
Judge Ilvedson called the committee's attention to Section 27-08-24 of the North Dakota Century Code which is the general laws and rules of practice of district courts and county courts--exceptions. He questioned whether the committee had such a Rule in regard to county justices.
Acting Chairman Muggli called on Judge Smith to continue his reading of Rule 41 (g). The text of Rule 41 (g) is on page 16 of the handout as well as the September 17, 1971 minutes, and also on page 76 of the January 1970 edition of the Amended Rules of Criminal Procedure, beginning on line 134.
"Rule 41 (g) RETURN OF PAPERS TO CLERK.
The magistrate before whom the warrant is returned shall attach to the warrant a copy of the return, inventory and all other papers in connection therewith and shall file them with the clerk of the district court for the county in which the property was seized."
This Rule differs from the Federal Rule in that the proposed North Dakota Rule deletes the word "federal" and substitutes in the last line "county" for "district". Judge Smith MOVED the adoption of Rule 41 (g) and it was seconded by Paul Sand. The vote was taken and the motion carried.
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Acting Chairman Muggli called on Judge Smith to read subsection (h). Judge Smith read subsection (h) as follows:
"(h) SCOPE AND DEFINITION. This rule does not modify any act, inconsistent with it, regulating search, seizure and the issuance and execution of search warrants in circumstances for which special provision is made. The term "property" is used in this rule to include documents, books, papers and any other tangible objects. The term "daytime" is used in this rule to mean the hours from 6:00 a.m. to 10:00 p.m. according to local time."
Judge Smith MOVED the adoption of subsection (h); the motion was seconded by Judge Murray. In discussion that followed, Judge Smith suggested that the proviso for special provision would allow for distinctions in search warrants authorized under the Uniform Controlled Substances Act (1971 - 19.03.101 N.D.C.C.) and the Uniform Administrative Search and Seizures Act (no citations or date given). The vote was called and the motion carried.
Judge Smith then MOVED the adoption of Rule 41 in its entirety; seconded by Judge Ilvedson. The question was called and the motion carried. Rule 41 is adopted.
Acting Chairman Muggli recessed the meeting until 9:00 a.m., Friday, the 19th of November.
Agenda Item #2: The meeting was called to order at 9:00 a.m. on November 19 1971 with Judge Smith presiding as interim chairman to consider agenda item #2, which is a consideration of Rule 26.1. Determination of Foreign Law. This Rule was last discussed at the meeting of May 19, 1971 (see pages 13, 14 and 15). The matter was left under study with the recommendation forthcoming at this meeting. Mr. Persinger, in briefing the committee on the disposition to this Rule, stated that at the last consideration of this Rule he recommended that no such Rule be adopted. He added, however, that a question arose as to extradition proceedings and he had agreed to give the matter further consideration. At this point his feeling is unchanged. Mr. Persinger read into the minutes of his proposal as submitted for the committee's consideration.
"Rule 26.1 DETERMINATION OF FOREIGN LAW
A party who intends to raise an issue concerning the law of a foreign country shall give reasonable written notice. The court in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under Rule 26. The court's determination shall be treated as a ruling on a question of law.
and the notes:
"Barron § Holtzoff, Sec. 2191 (Supp. 1966).
"Rule 26.1 setting forth a procedure for the determination of foreign law was adopted in 1966. With one unimportant difference, it is the same as civil rule 44.1, which was adopted at the same time. Accordingly the discussion of the civil rule should be consulted for an explanation of how the procedure operates. The right of confrontation provided by the Sixth Amendment may limit the second sentence of the Rule, permitting the court to consider material other than testimony, in criminal cases, but the draftsmen hope to avoid such problems on the theory that the issue is essentially one of the law rather than fact, and that in any event the Sixth Amendment is not a barrier against the development of reasonable and necessary exceptions to the hearsay rule.
"Rule 26.1 of the F.R.Crim.P. is essentially the same as Rule 44.1 of the F.R.Civ.P. and Rule 44.1 of the N.D.R.Civ.P.
"This rule as it is incorporated in the criminal and civil rules is intended to furnish the courts with a uniform and effective procedure for raising and determining an issue concerned with the law of a foreign country.
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"It is recommended that Rule 26.1 of the F.R.Crim.P. not be incorporated in the N.D.R.Crim.P. There appears to be no instance in which this state would be required to interpret the criminal law of a foreign country.
"Rule 54(b)(5) makes extradition proceedings inapplicable as per Rule 26.1.
"Rule 54(b)(5) Application and Exception:
Other Proceedings. These rules are not applicable to extradition and rendition of fugitives.
"Extradition Procedures are covered in 29-30.1-04, N.D.C.C. Uniform Rendition of Accused Persons Act."
Judge Burdick suggested that it might be necessary to know whether there was a crime charged in the foreign jurisdiction and whether there was sufficient cause for the issuance of the warrant of arrest in that jurisdiction. Mr Persinger, however, by way of a counter proposal offered for the committee's consideration Idaho's Proposed Rule 26.1 which is entitled "Foreign Law." Mr. Persinger read Idaho's proposed Rule 26.1 into the record.
"If either party to a criminal action intends to request the court to take judicial notice of the statutes or laws of a foreign state, a brief or memorandum citing such foreign law shall be submitted to the court and opposing counsel at least ten days prior to trial or hearing. Opposing counsel may reply thereto within five days following service of such brief. Failure to submit such brief shall constitute a waiver of the request."
COMMENTARY.
"Until recently the law of a foreign state, if an issue in a trial or hearing, had to be pleaded and proved. Such evidentiary requirement appears to have been recently abrogated by the Idaho Supreme Court in the case of White v. White, 18 I.C.R. 59, (Feb. 1971). The supreme court in holding that a district court shall have the authority to take judicial notice of the statutory laws of a sister state, at page 63, stated:
"Modern communications have put the statutory compilations of other states within easy access of Idaho's courts. Where the laws of sister states are ascertainable with verifiable certainty those laws should be the subject of judicial notice by Idaho's courts, for the reasons supportive of judicial notice generally: economy of time and effort in the judicial process by doing away with the necessity of formal proofs of facts where such proofs are not necessary to the sure ascertainment of the particular facts.
"Our legislature has not yet adopted either the Uniform Judicial Notice of Foreign Law Act or the Uniform Rules of Evidence, and we are not willing nor do we have the authority, as a matter of judicial fiat, to impose either act upon the Idaho legal system. We go only so far, today, as to repudiate the prohibition against judicial notice of the statutory law of sister states. We hold that when a party to an action requests that the trial court notice the statutory law of a sister state, the trial court shall have the authority to ascertain that law, just as it has the authority to determine the law of Idaho.* * *."
"Rule 26.1 does not attempt to alter the result of the White case, supra. It does, however, provide that a party intending to rely on the law of another state or county shall give notice of his intention. The committee believes that such a requirement is necessary, both for the court and opposing counsel. These rules are geared to the efficient administration of criminal justice. There is certainly no reason why the requirement of disclosure prior to trial or hearing should not be provided.
"Prior to the passage of Idaho's new Penal and Correctional Code, there was little need for the use of foreign law. The new code, however, (Section 18-103) provides several situations where the law of other states may become an issue."
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Judge Burdick stated that a habeas corpus proceeding would require a determination of foreign law. Mr. Travis, by way of answering Judge Burdick's point that habeas corpus is a necessary procedure for determination of foreign law, directed the committee's attention to Rule 54 as proposed for adoption, wherein is provided in subsection (b)(2) that "These rules shall not apply to proceedings on any application for a writ of habeas corpus had in the courts of this state pursuant to Chapter 32-22." Judge Erickstad questioned the reason for excluding habeas corpus from these proceedings.
Judge Smith answered by saying that habeas corpus is civil in nature and not a criminal action. Further, this is a Title 32 action and this action does not necessarily involve a crime at all. John Graham noted that this Rule may be covered under North Dakota law at present, under the Uniform Judicial Notice of Foreign Law Act in Section 31-10-03, which states that the statutes proposed of every state and jurisdiction shall be recognized.
Judge Erickstad reiterated to the committee that "the purpose of the committee's work is to gather together the body of law as complete as possible as it relates to procedure in our rules because we are trying to make our rules the source of information rather than the statutes."
Paul Sand pointed out that in proposed Rule 54 (b)(5), it says, that extradition proceedings are covered in 29-30.1-04. This is not accurate, however, because the Section reference is to the Uniform Rendition of Accused Persons Act whereas the extradition process is covered under Chapter 29-30.
Judge Muggli suggested that a request for a prior notice of judicial notice is advisable and he gave as an example an instance where a lawyer may be trying a case in a remote county where there was no library to speak of. Such prior notice would preclude an adjournment of the trial until the opposing attorney could gather the necessary information.
John Graham pointed out that the Uniform Judicial Notice of Foreign Law Act (Section 31-10-04), provides that, "where evidence will be offered reasonable notice must be given ahead of time."
Judge Burdick pointed out that the Idaho approach established a more procedural form in the requirement for a reasonable time, namely ten days and five days.
Roger Persinger MOVED to adopt Rule 26.1 in the language of the Proposed Idaho Rule 26.1. Motion was seconded by John Graham.
Judge Burdick in discussion suggested that the committee consider inserting phraseology such as, "unless otherwise provided for by the court", so that the court can in effect shorten the notice of time if it becomes advisable. By the same token, where the law of a foreign Jurisdiction is difficult to ascertain, this procedure would allow the court flexibility for delay in its determination. Therefore that flexibility should be desirable.
Judge Smith suggested possibly inserting the words, "for good cause shown".
Judge Burdick, however, felt that a showing of cause should not be required for this requires a form of presentation; that the determination should be discretionary on the part of the court.
Judge Muggli suggested retaining the ten-day period in Rule 26.1 for if the notice was filed within ten days there would be no application required to the court. He suggested, however, that it might be favorable to give the court the prerogative of reducing the number of days.
Judge Burdick suggested that the Idaho Rule 26.1 was couched in terms of judicial notice and refers only to judicial notice. He questioned whether there were other ways of proving the foreign law other than by judicial notice.
Judge Smith suggested that the standard or evidentiary way of proving the law of a foreign state was to produce the book or the promulgated statute from that state's Secretary of State's office.
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Judge Muggli made a MOTION that Judge Burdick be given time to draft language for his proposed substitute amendment to Rule 26.1. Paul Sand seconded it and the motion carried.
Agenda Item #3: The committee then considered Agenda Item #3;
Rule 46, Release on Bail as proposed by Roger Persinger. This Rule had been proposed for amendment by the advisory committee of the federal rules. (For reference see Preliminary Draft of Proposed Changes to the Federal Rules, January 1970). This Rule has been entirely reworked as is reflected in the change and title from Bail to Release from Custody. The amendments are intended to conform the Rule with the Bail Reform Act of 1966. Roger Persinger read from the first page of his proposed explanatory notes.
"In adopting Rule 46 of the Federal Rules of Criminal Procedure, it is hoped that we can incorporate within the Rules of Criminal Procedure of this State the benefits of and progressive attitude toward bail that is provided in the Bail Reform Act of 1966."
Mr. Persinger noted that the first portion of the Rule is taken from the Bail Reform Act of 1966 and rather than read the Bail Reform Act; it was suggested that he begin by reading the Rule.
"Rule 46. Release from Custody
(a) Release Prior to Trial.
(1) Release in noncapital cases prior to trial.
(i) Any person charged with an offense, other than an offense punishable by death, shall, at his appearance before a judicial officer, be ordered released pending trial on his personal recognizance or upon the execution of an unsecured appearance bond in an amount specified by the judicial officer, unless the officer determines, in the exercise of his discretion, that such a release will not reasonably assure the appearance of the person as required. When such a determination is made, the judicial officer shall, either in lieu of or in addition to the above methods of release, impose the first of the following conditions of release which will reasonably assure the appearance of the person for trial or, if no single condition gives that assurance, any combination of the following conditions:
(A) place the person in the custody of a designated person or organization agreeing to supervise him;
(B) place restrictions on the travel, association, or place of abode of the person during the period of release;
(C) require the execution of an appearance bond in a specified amount and the deposit in the registry of the court, in cash or other security as directed, of a sum not to exceed 10 per centum of the amount of the bond, such deposit to be returned upon the performance of the conditions of release;
(D) require the execution of a bail bond with sufficient solvent sureties, or the deposit of cash in lieu thereof; or
(E) impose any other conditions deemed reasonably necessary to assure appearance as required, including a condition requiring that the person return to custody after specified hours.
(ii) In determining which conditions of release will reasonably assure appearance, the judicial officer shall, on the basis of available information, take into account the nature and circumstances of the offense charged, the weight of the evidence against the accused, the accused's family ties, employment, financial resources, character and mental condition, the length of his residence in the community his record of convictions, and his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings.
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(iii) A judicial officer authorizing the release of a person under this section shall issue an appropriate order containing a statement of the conditions imposed, if any, shall inform such person of the penalties applicable to violations of the conditions of his release and shall advise him that a warrant for his arrest will be issued immediately upon any such violation.
(iv) A person for whom conditions of release are imposed and who after 48 hours from the time of the release hearing continues to be detained as a result of his inability to meet the conditions of release, shall, upon application, be entitled to have the conditions reviewed by the judicial officer who imposed them. Unless the conditions of release are amended and the person is thereupon released, the judicial officer shall set forth in writing the reasons for requiring the conditions imposed. A person who is ordered released on a condition which requires that he return to custody after specified hours shall, upon application, be entitled to a review by the judicial officer who imposed the condition. Unless the requirement is removed and the person is thereupon released on another condition, the judicial officer shall set forth in writing the reasons for continuing the requirement. In the event that the judicial officer who imposed conditions of release is not available, any other judicial officer in the district may review such conditions.
(v) A judicial officer ordering the release of a person on any condition specified in this section may at any time amend his order to impose additional or different conditions of release: Provided, That, if the imposition of such additional or different conditions result in the detention of the person as a result of his inability to meet such conditions or in the release of the person on a condition requiring him to return to custody after specified hours, the provisions of subsection (iv) shall apply.
(vi) Information stated in, or offered in connection with, an order entered pursuant to this section need not conform to the rules pertaining to the admissibility of evidence in a court of law.
(vii) Nothing contained in this section shall be construed to prevent the disposition of any case or class of cases by forfeiture of collateral security where such disposition is authorized by the court.
(2) Release in capital cases or after conviction.
A person who is charged with an offense punishable by death, shall be treated in accordance with the provisions of subsection (a)(1) unless the court or judge has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community. If such a risk of flight or danger is believed to exist the person may be ordered detain
(b) Release During Trial.
A person released before trial shall continue on release during trial under the same terms and conditions as were previously imposed unless the court determines that other terms and conditions or termination of release are necessary to assure his presence during the trial or to assure that his conduct will not obstruct the orderly and expeditious progress of the trial.
(c) Release Pending Sentence and Notice of Appeal.
Release from custody may be allowed pending appeal unless it appears that the appeal is frivolous or taken for delay. Pending appeal to a district court or to the supreme court, release from custody may be allowed by the magistrate or a judge or justice of the court to which the case is appealed. Any magistrate authorized to grant order release from custody may at any time revoke that order.
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(d) Release of material witnesses.
If it appears by affidavit that the testimony of a person is material in any criminal proceedings, and if it is shown that it may become impracticable to secure his presence by subpoena, a magistrate shall impose conditions of release pursuant to subsection (a)(1). No material witness shall be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and further detention is not necessary to prevent a failure of justice. Release may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the North Dakota Rules of Criminal Procedure.
(e) Justification of Sureties.
Every surety, except a corporate surety which is approved as provided by law, shall justify by affidavit and may be required to describe in the affidavit the property by which he proposes to justify and the encumbrances thereon, the number and amount of other bonds and undertakings for bail entered into by him and remaining undischarged and all his other liabilities. No bond shall be approved unless the surety thereon appears to be qualified.
(f) Forfeiture.
(1) Declaration.
If there is a breach of condition of a bond, the district court shall declare a forfeiture of the bail.
(2) Setting Aside.
The court may direct that a forfeiture be set aside, upon such conditions as the court may impose, if it appears that justice does not require the enforcement of the forfeiture.
(3) Enforcement.
When a forfeiture has not been set aside, the court shall on motion enter a judgment of default and execution may issue thereon. By entering into a bond the obligors submit to the jurisdiction of the district court and irrevocably appoint the clerk of the court as their agent upon whom any papers affecting their liability may be served. Their liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies to the obligors to their last known addresses.
(4) Remission.
After entry of such judgment, the court may remit it in whole or in part under the conditions applying to the setting aside of forfeiture in paragraph (2) of this subdivision.
(g) Exoneration.
When the condition of the bond has been satisfied or the forfeiture thereof has been set aside or remitted, the court shall exonerate the obligors and release any bail. A surety may be exonerated by a deposit of cash in the amount of the bond or by a timely surrender of the defendant into custody.
(h) Supervision of Detention Pending Trial.
The court ordering defendants or witnesses detained shall exercise supervision over the detention of such defendants and witnesses pending trial, for the purpose of eliminating all unnecessary detention. The state's attorney shall make a biweekly report to the appropriate court listing each defendant and witness who has been held in custody pending
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indictment, arraignment or trial for a period in excess of ten days. As to each witness so listed the state's attorney shall make a statement of the reasons why such witness should not be released with or without taking his deposition pursuant to Rule 15(a). As to each defendant so listed the state's attorney shall make a statement of the reasons why the defendant is still held in custody."
Mr. Persinger noted that (a)(1)(i) of the Rule is in essence the Bail Reform Act of 1966 as found in Section 3146 of Title 18.
Judge Burdick suggested examining the District of Columbia Bail Act.
Mr. Travis noted that the object in drafting the Rule was to incorporate the Federal Bail Reform Act into the Rule. This was done under the proposed amendments to the federal rules by way of reference in the federal rule. Since the State of North Dakota has no statute in any way similar to the Federal Bail Reform Act, what was intended was to incorporate by Rule that which had not been done by legislation and thereby achieve the same result.
Acting Chairman Smith suggested soliciting from each of the committee members their response to the proposed rule. Judge Muggli stated that while he had not studied the Rule at length, he was impressed by it and although it was long, felt that it included both the defendant and the witnesses.
Judge Erickstad stated that he felt that the drafters had done a great deal of work. However, Judge Erickstad questioned two items. The first one is on page 2, under section (iii), where the penalty for failure to comply with the conditions of release requires automatically that a warrant shall be issued for arrest. Secondly, on page 2, subsection (v) where it reads, "the provisions of subsection (iv) shall apply", he felt that this was a continual application and denial of conditions and questioned as to how long such a practice could continue. He then pointed out on page 4, subsection (e), where it reads, "that no bond shall be approved unless the surety thereon appears to be qualified", that from Rule 46 (a)(1)(i) there wouldn't be any security required unless (a) through (e) were required. Therefore he felt that the whole Rule was designed so that there should be no surety required in most cases.
Judge Smith responded by saying that it was designed to have a series of alternatives, the last of which would be to require bond as in subsection (e). It was pointed out that the qualification of a surety is only required under subsection (c). A final point that Judge Erickstad questioned was the use of the term "state's attorney", since in the past the committee has used "prosecuting attorney".
Roger Persinger said that there was no reason for including "state's attorney" and that the use of the term "prosecuting attorney" was fine with him.
Roger Persinger was called on next for his impression of the Bail Reform Act Mr. Persinger stated that he felt that the Bail Reform Act was a useful and necessary tool and that he had considered making a recommendation to the legislature for legislation of this type. However, after discussing it with Mr. Travis, he felt that it would be better to incorporate the Act by rule as was done in the proposed federal rule.
John Graham was called on next for his comments. He suggested that he was generally in favor of the Rule including the Bail Reform Act.
John Shaft indicated he was completely overwhelmed. He felt that there should be more in the Rule to instruct judges as far as release on a person's own recognizance and therefore he was a little disappointed in the Rule. He also felt the Rule wouldn't solve any problems that he had in mind.
Judge Ilvedson was called on next. He indicated that the Rule generally was acceptable but that on page 3, dealing with Release Pending Sentence and Notice of Appeal, it differed from the 1971 edition of the Federal Rules of Criminal Procedure. The Federal Rule provided that the defendant had to wait thirty days
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before he would be released in appellate cases and there was also added this sentence, "Criteria for Release." He also noted that on page 62, it notes that the burden of establishing that the defendant will not flee or pose a danger to any other citizen of the community rests with the defendant. The notes suggest that subdivision (c), where the sentence is taken from, is intended to bring the Rule into conformity with 18 U.S.C. 3146 and 3148. The burden of establishing that the defendant will not flee and that he will not pose danger to any other citizen of the community is placed on the defendant or the accused. The problem involved is where a doubt exists, whether the defendant can be safely released. Judge Ilvedson felt this should be considered by the committee.
Paul Sand was called on next. He stated that the Rule covered generally what he thought it should but that he had difficulty with the provision concerning detention of witnesses as it applies to depositions.
Judge Burdick was called on next. He indicated that he felt that the draftmanship in the federal language from which the Rule was adopted was very poor. He felt that the approach of the Act was excellent because bail has certainly been badly abused over the century and this is at least an effort to get the issue down to practical considerations as to whether the man is going to be required to appear for trial at the proper and appointed time. He further believed that the Rule should be divided into two parts, one which imposes conditions for the defendant's appearance in court, and the other which is the preventive detention features of the section. Judge Burdick also called attention to subsection (2) on page 3 entitled "Release in Capital Cases", to the latter portion of that subsection where it reads; "where the court or judge has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community. If such a risk of fight or danger is believed to exist the person may be ordered detained." Judge Burdick felt that due process required greater embellishment than this and suggested examining the Bail Act of the District of Columbia wherein there is a procedure utilized in cases to determine whether the person shall be detained. He felt that preventive detention was not adequately treated in this Rule. He felt further that the Constitutional Convention should be apprised of this fact and a preventive detention provision should be included in the Constitutional Convention.
Judge Ilvedson suggested that the Rule provide a subsection (a)(l) which would authorize an application, a hearing, and a review.
Judge Murray made the following comments: The objective set down in the Rule incorporating the Bail Reform Act is very good. He then stated that he knew of very few cases where an individual has "jumped" bail. However, he felt that the Rule was a little too long and cumbersome. Secondly, he felt that all reference should be eliminated as far as capital punishment was concerned.
Judge Smith, presiding as chairman, made his comments. He suggested that the reason for asking for the round table discussion was so that everyone, including himself, could have an opportunity to speak. He stated that he had hoped someone would catch a point that he had objected to in this Rule--not because he wasn't liberal in his thinking or that he hadn't already subscribed to many of the policies which are listed within the Rule, but rather, he objected to the method for insuring pretrial release which imposes all the burden on the magistrate. At present the process is too lengthy and the provision as stated in the Rule places an additional burden upon the magistrate to show by written order why he is holding the person. This procedure will slow down the process of initial appearance to the point where it loses all reality. The way the Rule is worded, the magistrate is required to show or give the defendant a reason why he is holding him. This places the shoe on the wrong foot and puts the magistrate in a position of being in league with the State. Under this rule, the magistrate is no longer detached as he need be at the time he issues a search warrant and at the time he issues the complaint. This whole concept places the judge in league with the state's attorney against the defendant in a determination of whether there is going to be any detention at all.
John Graham responded to Judge Ilvedson's point by pointing out that lines 85, 86, 87 and 88 on pages 84 and 85 in the amended rule of January 1970 amendments add the exact language that Judge Ilvedson had brought up. The language referred to is; "The burden of establishing that the defendant will not flee or be a danger to any other person or to the community rests with the defendant." Mr. Graham then questioned why this particular language had not been picked up and incorporated within the Rule.
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Roger Persinger pointed out that subsection (c) of the proposed North Dakota Rule comes from the proposed Idaho Rule.
Judge Burdick suggested that the Rule be reworked because he felt that additional language should be included to provide for a preventive detention provision similar in context to the Bail Reform Act for the District of Columbia. Judge Burdick believed this language to be contained in Senate Bill #2600, enacted in 1969 by Congress. However, he didn't have the present citation.
Judge Muggli questioned the propriety of ruling on such a substantive provision as preventive detention by Rule.
John Graham suggested that while the present Constitution remains unaltered, there is no way that this committee could provide for preventive detention other than in capital cases.
Judge Muggli again questioned the propriety of providing for release before trial in trying to enact statutory rights of procedures. He said that the committee was getting into a legislative process here and this was not its function.
Mr. Travis responded to Judge Muggli's question by stating that these questions had been considered but it was felt in the final analysis that to investigate further would be too time-consuming. Even then it would be questionable whether the legislature would follow through in legislation such as the Bail Reform Act. Secondly, there is the question as to whether this is substantive or procedural, or whether this can be handled by rule or whether it needed to be passed on by the legislature. Furthermore, the language which was stricken and the language which was included is very similar. Provisions for subsection (a), essentially provide certain standards by which the committing magistrate may guide himself in determining whether an individual should be granted bail or should be released under one of the various methods listed. Furthermore, there have been other areas in which the narrow question of whether the Rule was substantive or procedural has arisen, and where this question had arisen it was decided to proceed by Rule and worry about the circumstances at a future time.
Judge Muggli inquired of Judge Burdick as to whether the National Conference of Commissioners on Uniform State Laws was doing any work on the question of bail.
Judge Burdick stated that there were at present two committees in operation, one revising the Criminal Rules of Procedure and the second a special committee or drafting a "Uniform Release on Bail Act".
Judge Smith stated that he felt the Rule in its present form was not a very practical Rule in that it relegates the judge or magistrate to a position of a paper shuffler and creates too many clerical duties for him. This would consume a great deal of time and limit his effectiveness to function in those matters which he is essentially required to do. He stated that if such a Rule were passed, the effect would be to superimpose an additional burden upon the judge, making his task almost impossible. He felt that the burden should be placed on the defendant to give reasons why he should not be held. It would simply require the defendant to convince the judge the individual should be released. The judge could then protect himself against reversal should the matter be appealed.
Judge Ilvedson suggested removing paragraph 5(v) on page 2 of the proposed draft because in paragraph (iv) the defendant already has the right to come in before the court which will review the case.
John Graham suggested that the procedure utilized by Judge Smith at present on questions of release was similar to what would be required in a Rule and therefore it would not be imposing an additional burden upon him.
Judge Ilvedson noted his objection to paragraph (iv) was that it required too many hearings for the defendant. He felt one hearing should be enough.
Roger Persinger, in commenting on the last section of subsection (h) on page 5, stated that the times quoted were taken from the federal rules but this was not a firm figure and the judges would be more knowledgeable in this regard if they could change it as they saw fit.
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Judge Smith questioned whether subsection (h) was necessary in light of the fact that this particular Rule was designed for large metropolitan areas such as the eastern seaboard where some defendants have been held for up to two years pending trial. This administrative procedure might not necessarily be required in North Dakota where people are seldom held more than a few hours.
Judge Ilvedson made a MOTION to have the present draft reworked and the Rule resubmitted. Judge Burdick seconded the motion.
Judge Erickstad suggested that it might be a better idea to rework the Rule over an extended noon hour, for he felt that the subject would get "cold" if postponed two months, until the next meeting. Therefore, those interested should meet with Mr. Persinger and Mr. Travis at noon hour to make the necessary changes in the proposed rule.
Mr. Travis, commenting on the suggestion, stated that if the committee delayed the adoption or reworking of this rule any longer, the committee would face additional problems. Not everyone would agree on any one draft proposed and there could be changes based on individual preferences. Therefore, Judge Erickstad's comment was well taken. Further, it would be better to draft a rule now that would be acceptable to the committee members and subject to change upon the committee's consideration of a final draft.
Judge Ilvedson in agreeing with this proposal withdrew his motion.
Acting Chairman Smith appointed Mr. Travis, Mr. Persinger and Mr. Graham to review the Rule over the noon hour, admonishing them to take into consideration the real problems which were discussed.
Judge Muggli made a MOTION that the committee consider wording for Rule 46 to read that "eligibility for release prior to trial shall be in accordance with the laws and statutes of the State of North Dakota."
Paul Sand seconded the motion for the purpose of discussion.
Mr. Travis, in disagreeing with Judge Muggli, stated that he and Mr. Persinger had considered language of this type but that this totally ignores the question. The intent, thrust and purpose of the whole rule is to take bail under serious consideration. He further stated that these were procedural tools which the committee should seriously consider. The question was called on Judge Muggli's motion. The vote was three in favor and five opposed. The motion failed. The committee recessed for lunch.
Following the noon recess, the committee reconvened with a consideration of the new draft of Rule 26.1. Mr. Persinger read the revised draft of Rule 26.1 entitled FOREIGN LAW.
"Rule 26.1 FOREIGN LAW
"A party who intends to raise an issue concerning the law of any jurisdiction foreign to this state, shall give notice thereof, citing the foreign law, to the court and opposing counsel at least ten days prior to the hearing or trial, unless otherwise permitted by the court. If opposing counsel does not reply within five days after receiving the notice, the court may determine the foreign law to be as cited in the notice. In determining the foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under Rule 26. The court's determination shall be treated as a ruling on a question of law."
Mr. Persinger MOVED the adoption of the revised Rule and the motion was seconded by Judge Muggli.
John Graham questioned for clarification, whether it was the intent that the question of judicial notice shall be governed by the Uniform Judicial Notice
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Rule. The reply to this was in the affirmative. There being no further discussion, the vote was called and the motion carried.
Judge Smith relinquished the chair to John Shaft who was appointed acting chairman for the purposes of Agenda Items #3, 4 and 5.
Agenda Item #3: Acting Chairman Shaft called the committee's attention to Agenda Item #3, which is a consideration of Rule 46 as revised by subcommittee composed of Roger Persinger, Charles Travis, John Graham and Judge Burdick. The subcommittee reworked the proposal of Roger Persinger's Rule 46 during the noon hour, pursuant to the discussion and request of the full committee. The Rule as proposed is as follows:
"Rule 46. Release from Custody
(a) Release Prior to Trial.
(1) Release in non-capital cases prior to trial.
(i) Any person charged with an offense, other than an offense punishable by death, shall, at his appearance before a magistrate, be ordered released pending trial on his personal recognizance or upon the execution of an unsecured appearance bond in an amount specified by the magistrate, unless he determines, in the exercise of his discretion, that release will not reasonably assure the appearance of the person as required. If that determination is made, the magistrate, either in lieu of or in addition to the above methods of release, shall impose the first of the following conditions of release which will reasonably assure the appearance of the person for trial or, if no single condition gives that assurance, two or more of the following conditions:
(A) place the person in the custody of a designated person or organization agreeing to supervise him;
(B) place restrictions on the travel, association, or place of abode of the person during the period of release;
(C) require the execution of an appearance bond in a specified amount and the deposit with the court, of cash or other security as directed in an amount not to exceed 10 per centum of the amount of the bond, which deposit shall be returned upon the performance of the conditions of release;
(D) require the execution of a bail bond with sufficient solvent sureties, or the deposit of cash in lieu thereof; or
(E) impose any other conditions deemed reasonably necessary to assure appearance as required, including a condition requiring the return of the person to custody after specified hours.
(ii) In determining which conditions of release will reasonably assure appearance, the magistrate, on the basis of available information, shall take into account the nature and circumstances of the offense charged, the weight of the evidence against the accused, the accused's family ties, employment, financial resources, character and mental condition, the length of his residence in the community, his record of convictions, and his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear voluntarily at court proceedings.
(iii) A magistrate authorizing the release of a person under this section shall issue an appropriate order containing a statement of the conditions imposed, if any, shall inform such person of the penalties applicable to violations of the conditions of his release and shall advise him that a warrant for his arrest will be issued immediately upon any violation.
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(iv) A person for whom conditions of release are imposed and who after 48 hours from the time of the release hearing continues to be detained as a result of his inability to meet the conditions of release, shall, upon request, be entitled to have the conditions reviewed by the magistrate.
(v) A magistrate ordering the release of a person on any condition specified in this section may at any time amend his order to impose additional or different conditions of release.
(vi) Information stated in, or offered in connection with, an order entered pursuant to this section need not conform to the rules pertaining to the admissibility of evidence in a court of law.
(vii) This section shall not be construed to prevent the disposition of any case or class of cases by forfeiture of collateral security where that disposition is authorized by the court.
(2) Release in capital cases.
A person who is charged with an offense punishable by death, shall be treated in accordance with the provisions of subsection (a)(1) unless the court or judge has reason to believe that one or more conditions of release will not reasonably assure that the person will appear for hearing or trial. If the magistrate has reason to believe the person will not appear, the person may be ordered detained.
(b) Release During Trial.
A person released before trial shall continue on release during trial under the same terms and conditions as were previously imposed, unless the court determines that other terms and conditions or termination of release are necessary to assure his presence during the trial or to assure that his conduct will not obstruct the orderly and expeditious progress of the trial.
(c) Release Pending Sentence and Notice of Appeal.
Release from custody may be allowed pending appeal, unless it appears that the appeal is frivolous or taken for delay. Pending appeal to a district court or to the supreme court, release from custody may be allowed by the magistrate or a judge to which the case is appealed. Any magistrate authorized to order a release from custody may at any time revoke that order. The burden of establish that the defendant will not flee or be a danger to any other person or to the community rests with the defendant.
(d) Release of material witnesses.
If it appears by affidavit that the testimony of a person is material in any criminal proceedings and it is shown that it may become impracticable to secure his presence by subpoena, a magistrate shall impose conditions of release pursuant to subsection (a)(1). A material witness shall not be detained because of inability to comply with any condition of release if the testimony of the witness can adequately be secured by deposition, and further detention is not necessary to prevent a failure of justice. Release may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to [these Rules.]
(e) Justification of Sureties.
Every surety, except a corporate surety which is approved as provided by law, shall justify by affidavit and may be required to describe in the affidavit the property by which he proposes to justify and the encumbrances thereon, the number and amount of other bonds and undertakings for bail entered into by him and remaining undischarged and all his other liabilities. [A] bond shall [not] be approved unless the surety thereon appears to be qualified.
(f) Forfeiture.
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(1) Declaration.
If there is a breach of condition of a bond, the court shall declare a forfeiture of the bail.
(2) Setting Aside.
The court may direct that a forfeiture be set aside, upon such conditions as the court may impose, if it appears that justice does not require the enforcement of the forfeiture.
(3) Enforcement.
If a forfeiture has not been set aside, the court on motion shall enter a judgment of default and execution may issue thereon. By entering into a bond the obligors submit to the jurisdiction of the district court and irrevocably appoint the clerk of the court as their agent upon whom any papers affecting their liability may be served. Their liability may be enforced on motion without the necessity of an independent action. The motion and [such] notice of the motion as the court prescribes may be served on the clerk of the court who shall forthwith mail copies to the obligors [at] their respective last known addresses.
(4) Remission.
After entry of judgment, the court may remit it in whole or in part under the conditions applying to the setting aside of forfeiture in paragraph (2) of this subdivision.
(g) Exoneration.
If the condition of the bond has been satisfied or the forfeiture thereof has been set aside or remitted, the court shall exonerate the obligors and release by bail. A surety may be exonerated by a deposit of cash in the amount of the bond or by a timely surrender of the defendant into custody.
(h) Supervision of Detention Pending Trial.
The court ordering defendants or witnesses detained shall exercise supervision over the detention of [those] defendants and witnesses pending trial, for the purpose of eliminating all unnecessary detention.
Note - the language in [ ] reflects the changes as listed below.
Mr. Persinger MOVED the adoption of the revised Rule as read. The motion was seconded by John Graham. Judge Burdick suggested some style changes as follows: In paragraph (f)(3), Enforcement, on page 4, reading "The motion and notice of the motion as the court prescribes", the word "such" should be reinserted. Under the last paragraph under (h) in the second line beginning "supervision over the detention of", the word "such" should be taken out and the word "those" be inserted instead. On page 4 under (e) Justification of Sureties., the last sentence where it says: "No bond shall be approved" should read;
"A bond shall not be approved unless the surety thereon appears to be qualified."
Mr. Travis suggested a change on page 4, under (d), Release of Material Witnesses, the last sentence where it says, "witness can be taken pursuant to the North Dakota Rules of Criminal Procedure", we can say "pursuant to these Rules." John Graham made a suggestion on page 4, (3) Enforcement., the last line of that paragraph should read obligors "at" their respective last known addresses instead of "to." Roger Persinger agreed to accept these style changes in the motion.
Following the style changes, Acting Chairman Shaft called for discussion on the motion. Judge Burdick noted for the committee's benefit that the way the Rule is now edited that preventive detention has been eliminated except upon a conviction for a capital offense which is permitted after conviction if the defendant can show that he is not a danger. For all practical purposes, the
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rule on preventive detention is out of this Rule. Judge Burdick then MOVED that the committee draft a Rule patterned after proposed Senate Bill 2600 and that the Constitutional Convention be advised of the probable necessity for amending the Constitution with respect to bail so as to permit a preventive detention rule to be developed.
Judge Erickstad, commenting on Judge Burdick's proposal, suggested that from a procedural standpoint, the committee should dispose of what was before it and then take up the idea. Then if the committee decided to go along with Judge Burdick's idea it could later incorporate it into the Rule. There was no further discussion on the Rule.
Judge Smith stated that the Rule as it is now redrafted complies with his desires in that it doesn't require the judge to state reasons in writing for his detention. Acting Chairman Shaft questioned the paragraph on Enforcement as to whether the committee could proceed by Rule, that is, to merely give notice to the clerk of court that there has been a default on the bond and enter a judgment against the bonding company.
John Graham responded by saying that if these Rules were adopted, they would have the force of law and if the committee by these Rules required that notice be given to bail bondsmen, this would be the law.
Judge Burdick made a MOTION to add language in subsection (a)(1)(i)(C) so that it would read as follows:
"(C) require the execution of an appearance bond in a specified amount and the deposit with the court, of cash or other security as directed in an amount not to exceed 10 per centum of the amount of the bond, which deposit shall be returned upon the performance of the conditions of release."
Judge Ilvedson seconded the motion. Acting Chairman Shaft then called for discussion. Judge Smith questioned the necessity of having to make the court a pawn shop. He noted that most people do not carry large amounts of cash and only through use of various securities could they obtain the necessary release. The question was called and the motion carried.
On the amended motion to adopt Rule 46 as amended, the vote was favorable and the motion carried. Rule 46 is adopted as amended.
Judge Burdick then made a MOTION as follows: That it be the consensus of this committee that we deem it desirable to develop an appropriate rule on preventive detention* on lines of Senate Bill 2600, pending or recently passed by the Congress and that the Constitutional Convention be made aware of our desire and the necessity of drafting a constitutional provision on bail that would accommodate the promulgation of such a rule. Judge Ilvedson seconded the motion. It was pointed out that Senate Bill 2600 had already been distributed to the members of the committee. Acting Chairman Shaft called for the vote. The motion carried with one no vote--John Graham.
Judge Ilvedson questioned John Graham's vote of "no" and Mr. Graham responded that he felt that such a provision for preventive detention, if approved by the Constitutional Convention and included in the Constitution, would more appropriately come from the legislature.
Judge Burdick in calling for a vote in unanimity questioned the sense of the committee as to the handling of this procedure, that is, by rule or by statute. Judge Burdick then MOVED that the vote by which the previous motion was carried should be reconsidered. Judge Ilvedson seconded the motion. The vote was favorable and the motion carried.
Judge Burdick then made the MOTION that the Constitutional Convention adopt a rule or provision with respect to bail that would accommodate the promulgation of an appropriate preventive rule either by statute or by rule. The motion was seconded by John Graham. There was no discussion, the vote was called and the motion carried by a unanimous vote. Judge Murray suggested that the connotation of preventive detention arouses in people a wrong image. Acting Chairman Shaft appointed Judge Burdick as the emissary from the committee to carry the idea of preventive detention to the Constitutional Convention.
*Amended, see page 24, ¶ 5.
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Agenda Item #4: Acting Chairman Shaft then called for consideration of Agenda Item #4, which is Rule 50 (Calendars), proposed by John Graham. Mr. Graham read his proposed draft as follows:
"Rule 50. CALENDARS.
The (((district))) courts (((may))) shall provide for placing criminal actions or proceedings upon appropriate calendars. Preference shall be given to criminal actions or proceedings as far as practicable. [A court may make such orders for advancement or continuance of criminal actions or proceedings* as may be necessary in the interest of justice.]
NOTES: Deletions from the Federal Rule are indicated by inserting the deleted material in triple parentheses. Added material is indicated by underlining. The material in brackets is included for discussion purposes only.
DISCUSSION: The word "district" is omitted so that the rule will be applicable to all courts covered by Rule 1 as adopted.
The word "shall" has been substituted for the word "may", because there is no need for prosecutors to arrange the criminal calendar in North Dakota as is done in some of the Federal Districts. I believe that this arrangement is the reason for the use of the word "may." Note that Alaska Rule 45 uses the word "shall".
The words "actions or" have been inserted before the word "proceedings" to conform to the language used in Rules I and 2 as adopted.
The second sentence states an elementary principle of criminal justice which has gained more force through application of the Sixth Amendment's "speedy trial" provisions to the States. See KLOPFER v. NORTH CAROLINA.
Since calendars, speedy trials, and continuances seem inextricably bound together, I have included the language in brackets for discussion purposes, without advocating its adoption. Should no mention of continuances be made in this rule (provision for continuances is not made elsewhere in the F.R.Cr.P.), I would recommend that N.D.C.C. Ch. 29-19, dealing with grounds for continuances, etc., be retained, so that some statutory guidelines would exist."
Respectfully submitted,
John A. Graham
John Graham MOVED the adoption of Rule 50 to include the material within
the brackets. Motion seconded by Judge Smith. The motion was open for discussion and Judge Erickstad questioned how the Rule compared with the Federal Rule. John Graham responded by stating that the Federal Rule reads the same as the proposed rule up to where the brackets are included with the addition of "district" and "may", and the deletions of "shall" and "actions or". John Graham indicated that he had used the Federal Rule but that he had indicated by brackets where he had either made additions to or subtractions from the Federal Rule.
Acting Chairman Shaft called the committee's attention to Section 29-19 of the North Dakota Century Code. Judge Muggli felt that the bracketed portion should be the responsibility of the courts to prevent delay in the system. Judge Smith suggested that the Rule be enacted and supersede all those provisions pertaining to the legislature either as attorneys or parties and retain those special provisions for legislative immunity. John Shaft pointed out that Chapter 29-19 dealt with continuances in North Dakota and most of that chapter would be covered by the terminology, in the interests of justice, except for two or three sections which grant immunity to attorneys and other members of the legislature. Judge Burdick questioned the use of the word "shall" instead of "may". It was pointed out that the reason for the use of the word "shall", was included in the discussion. John Graham further pointed out that it had been discussed at a previous meeting and the fact was brought up that the federal prosecutors
*Amended, see page 24, ¶ 2.
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in some districts are responsible for the criminal calendar. When he went to draft this, the only thing he had in mind was that "may" probably indicates that either the court or the federal prosecutor will handle this but he didn't believe that this was the case in North Dakota and therefore he changed it to "shall". He didn't consider the question of whether there would be or would not be a calendar; he didn't feel that this raised any problems. Mr. Graham added two additional points; first, years ago the Constitutional Convention decided that all accused persons shall be bailable except for capital offense and today we are suggesting that we change that; second, he didn't want to get into redrafting 29-09-06. Judge Smith suggested that one possible use for this particular Rule might be to require that no court having criminal jurisdiction permit a continuance, unless it was to a future date set and certain or at least required to be placed on a calendar. Judge Erickstad noted that 29-19-06 relates only to grounds for continuance due to the absence of a witness. It was his experience that this would be in the interests of justice and if it was covered generally it would cover a lot more than absent witnesses. He said further that if counsel for the defendant had a good imagination he could think of numerous reasons for continuances. John Shaft inquired of John Graham as to whether he would like to see the language contained in 29-19-07 included in this Rule; that is, the part about legislatures. John Graham responded by saying that he would like to see that statute retained.
Judge Burdick suggested that the last sentence of the Rule should not be couched in terms of the plural since the first and second sentences are termed in the plural. The last sentence should then read, "A court may make such orders for advancement or continuance of a criminal action (without the plural) or proceeding (without the plural) as may be necessary in the interest of justice." This would indicate that it would be on an individual case basis rather than by a group or rule applying to a number of cases of a criminal action or proceeding as may be necessary. Acting Chairman Shaft questioned Judge Burdick as to whether he wished to make this in a form of an amended motion and it was suggested that this would be incorporated in the original motion as accepted by John Graham and seconded by Judge Smith. The vote was called and the motion passed unanimously. Rule 50 is adopted as amended.
Judge Muggli said that he was particularly interested in the word "advancement" in the last sentence of Rule 50. He interpreted that word to mean, "the power to move cases ahead for trial in situations where they would have to wait for a term of court that would constitute a delay of justice."
Roger Persinger noted that he was informed that Senate Bill 2600 died in subcommittee on May 14, 1971. The author of Bill 2600 introduced two separate Bills. Senate Bill 1868 and 1867, both of which deal with the same subject matter, and these Bills are now in the Constitutional Rights Subcommittee of the Senate Judiciary Committee and there has been no action taken at all on them and none is scheduled at this point, that is, for Senate Bills 1868 and 1867. These are amendments to the 1966 Bail Reform Act. John Graham pointed out that the Bail Reform Act of 1966 does apply to the District of Columbia.
Judge Burdick made a MOTION to amend his previous motion pertaining to preventive detention so that the term used for that provision would be deemed "pretrial detention of dangerous persons". Judge Murray seconded the motion.
Judge Erickstad suggested in discussion that the terminology proposed by Judge Burdick was more general before than it was now. Judge Ilvedson called for the question. The vote was unanimous and the motion to reconsider the original motion and to adopt the substitute motion was carried.
Agenda Item #5: Acting Chairman Shaft called for Agenda Item #5, which is Rule 51 (Exceptions Unnecessary) proposed by John Graham. The proposed text as read including the notes is as follows:
"RULE 51
Proposed Text:
Rule 51. EXCEPTIONS UNNECESSARY. Exceptions to rulings or orders of the court are unnecessary and for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the
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court the action which he desires the court to take or his objection to the action of the court and the grounds therefore. If a party has no opportunity to object to a ruling or order, the absence of an objection does not thereafter prejudice him.
"NOTE: This is essentially the language of present Fed. Rule 51, and also NDR Civ. P Rule 46, with the addition of the word "Formal" preceding the first word of the above text. I see no particular value in adding the word "Formal". Alaska Rule 46 and Colorado Rule 51 are also identical. Delaware Rule 51 adds the following penultimate sentence: "Where justice requires the court may relieve a party from the consequences of failure to assign the proper reasons in support of an objection."
I have not included that sentence in my proposed draft. Whether the "court" referred to in that sentence is a trial or appellate court, it seems clear that action would be taken to relieve a party of the consequences of a failure to assign proper grounds for objection "where justice requires" under an extension of the doctrine of "plain error". See Rule 52, F.R. Crim.P., and On Lee v. United States, 343 U.S. 747, 72 S. Ct. 967 (1952); United States v. Lewis, 433 F. 2d 1146 (D.C. Cir. 1970).
N.D. Statutes affected:
Section 29-21-32 - counsel is deemed to have "excepted" to instruction! given or refused by trial court, but he may be specifically required to object to instructions if he receives copies of them before the charge to the jury, see NDCC Section 29-21-33. Query, whether "rulings or orders" as used in the text of Rule 51 covers instructions given?
Section 29-23-05 states: "All orders, decisions, and rulings of the court in a criminal action are deemed excepted to."
Section 29-23-06 provides that instructions excepted to are part of the record of the action, and do not need to be made part of the statement of the case.
Section 29-21-12 makes applicable the rule of evidence in civil as well as to criminal cases, unless otherwise provided in Title 29, NDCC.
Section 29-17-21; 29-17-22; 29-17-26; 29-17-39 deal with exceptions to challenges of jurors or jury panels. Note: many of these sections may also be affected by adoption of Rule 24.
Repeal: Section 29-23-05
Retain: Sections 29-21-32; 29-21-33; 29-23-06; 29-17-21; 29-17-22; 29-17-26; 29-17-39
John Graham made a MOTION to adopt Rule 51. Seconded by Roger Persinger. Opened for discussion. Paul Sand suggested that the only language necessary in this Rule is "Exceptions to rulings or orders of the court are unnecessary." Judge Burdick agreed by saying that the rest of that Rule was unnecessary because it dealt with situations which North Dakota courts have not been faced and that the North Dakota courts were not required to take exception or to note exceptions in the case of jury instructions where the court made the request. Since jury instruction is separate by itself, the "period" would properly go after "unnecessary" in the first sentence of Rule 51.
Acting Chairman Shaft called on John Graham, as the drafter of the Rule, to comment on Judge Burdick's comment. John Graham said that he didn't have any objection except that he thought that the most important part of the Rule is in the part where it says "If the party has no opportunity to object". It was pointed out that Rule 51 was similar to the North Dakota Rules of Civil Procedure Rule 46 and that Judge Burdick had been on that committee. Judge Burdick said that at one time in North Dakota civil practice, before the civil rules procedure, one had to take exceptions. Judge Murray called the committee's attention to Chapter 29-18, dealing with Exceptions of the 1943 Code. He noted that this section defines what an exception is and those things which are deemed excepted to.
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Paul Sand noted that 28-18-01 NDCC says that an exception must be taken at the time the decision is made except as otherwise provided in this Chapter. Under the definition it was held previously that an exception is an objection as to a matter of law in a decision. It must be taken at the assigned time the decision is made except as otherwise provided in this chapter. See the footnote at 28-18-01 which deals with a criminal case. It says "Unless exceptions in writing are taken to instructions given or refused in a criminal case..." John Graham MOVED that his Rule read as the last sentence of his proposed text.
"If a party has no opportunity to object to a ruling or order, the absence of an objection does not thereafter prejudice him."
It was suggested that the first sentence also be included in the motion, that is "Exceptions to rulings or orders of the court are unnecessary." The part thereafter in the first sentence, it was noted, was only included for historical reference and therefore should be excluded. The motion for the proposed rule as amended is as follows:
"Rule 51. EXCEPTIONS UNNECESSARY.
Exceptions to rulings or orders of the court are unnecessary. If a party has no opportunity to object to a ruling or order, the absence of an objection does not thereafter prejudice him."
Judge Burdick suggested that there should be a cross reference to Rule 30 which does provide for exceptions on instructions. John Graham objected to the cross reference to Rule 30 as being unnecessary. Judge Erickstad suggested that this procedure might be covered in an annotation. Judge Ilvedson noted that the Rule as prepared by John Graham is general in nature but the cross reference to Rule 30 is specific, that is, specific with regard to instructions and it can't be interpreted otherwise. The question was called on the adoption for Rule 51 as proposed. The vote was unanimous and Rule 51 as amended is adopted.
Judge Burdick noted that he was provided by Mr. Travis with Public Law 91-358 (the District of Columbia Court Reform Act) which contains the Act dealing with Pretrial Detention of Dangerous Persons cited in 1 U.S.C.C.A. 756, Volume 1, 91st Congress Second Session 1970. This was the type of Act that Judge Burdick had in mind for reference to a rule or statute providing for pretrial detention of dangerous persons. Judge Burdick made a MOTION to reconsider his prior motion to include reference to the District of Columbia's enactment as just mentioned. There was no discussion; the question was called and the motion carried.
Agenda Item #6: Acting Chairman Shaft called the committee's attention to Agenda Item #6, which is to consider Rule 54, Application and Exception as proposed by Judge Smith. For reference see page 19 of the minutes of December 1970; see also proposed amendments to the federal rules January 1970, page 89. Judge Smith read his proposal for Rule 54 to the committee. It is as follows:
"Rule 54. Application and Exception.
(a) Courts.
These rules govern the practice and procedure in all criminal actions and proceedings as described in Rule 1.
(b) Proceedings.
(1) Regulatory proceedings in municipalities or other political subdivisions. These rules shall not apply to any proceeding for the collection of a fine resulting from violation of an ordinance of any municipality or other subdivision of this state, unless such ordinance shall authorize a sentence which could include confinement of a defendant upon his conviction for violation of such ordinance.
(2) Habeas Corpus. These rules shall not apply to proceedings on any application for a writ of habeas corpus had in the courts of this state pursuant to Chapter 32-22 of the North Dakota
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Century Code or Section 25-03-21 of the North Dakota Century Code, nor to such other habeas corpus proceedings as may be authorized by the laws and decisions of the Supreme Court of this state or of the Supreme Court of The United States as may be controlling upon the courts of this state.
(3) Peace Bonds. These rules do not alter the power of magistrates, authorized by law to act within the county, to take and hold security for the prevention of a public offense, or of a district judge to dispose of such peace bonds as provided by the laws of this state, except that the procedure must conform to these Rules so far as they are applicable.
(4) Mental Health Board and Tuberculosis Board Proceedings. These rules do not apply to proceedings had before a county Mental Health Board for the purpose of determining whether a proposed patient should be ordered committed to the State Hospital at Jamestown or any other hospital or school for the mentally ill or mentally deficient or tubercular persons as may be authorized by Title 25 of the North Dakota Century Code or other laws.
(5) Other proceedings. These rules are not applicable to extradition and rendition of fugitives; forfeiture of property for violation of a statute of this state; or the collection of fines and penalties. They do not apply to proceedings under Chapter 27-16 of the North Dakota Century Code, that is Juvenile Court--so far as they are inconsistent with that chapter. They do not apply to an action to determine paternity of a child born out of wedlock as provided by Chapter 32-36 of the North Dakota Century Code.
(6) All other statutory proceedings of a criminal character shall be governed by these rules insofar as these rules do not conflict with the statutory procedures provided by legislature.
"Explanatory Notes
Rule 54. Application and Exception.
(a) Courts.
54 (a) says that criminal rules govern all criminal proceedings in courts in which they are applicable. This history is a restatement of the scope of the rules provided in Rule I and the intention in including this subsection is first of all to act as a cross reference with Rule 1, and secondly to remain consistent with the federal rules insofar as the numbering system is concerned.
(b) Proceedings.
"Proceedings" has been defined as meaning with "all possible steps in the criminal case from its inception to judgment and sentence." (See U.S. v. Choate, C.A. 5th, 1960, 276 F2d 724, 727 N. 6, 86 ALR2d 1337)
(1) Regulatory proceedings in municipalities or other political subdivisions.
It is intended that this paragraph could solve in some measure the problem of determining the status of municipal ordinances with respect to its standing as a crime which has not as yet been resolved. That is, that a municipal ordinance has been deemed not to be a public offense in all cases. Section 40-05-01 of the North Dakota Century Code specifically permits punishment to be imposed for violation of a city ordinance notwithstanding that such offense may also be punishable as a public offense under state law. The State Supreme Court held in City of Minot v. Whitfield, 71 N.W.2d 766 (ND 1955) that the rules of criminal procedure are applicable to city ordinances which may be punished by imprisonment. It is therefore the intent of this subsection to amplify and expand the
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applicability of these rules in cases in which municipal courts are dealing with municipal ordinances that have as punishment the possibility of a prison term for the offender.
(2) Habeas Corpus.
A proceeding in habeas corpus is "an independent and collateral inquiry into the validity of a conviction;" this is not a step in the criminal action. The action is civil in nature and governed by the rules and statutes applicable to civil actions. See Chapter 32-22 of the North Dakota Century Code which provides for habeas corpus as a judicial remedy. Also see Chapter 25-03-21 of the North Dakota Century Code which grants a writ of habeas corpus to patients in certain instances.
(3) Peace Bonds.
The rules do not alter the power of the judges or magistrates of the courts of this state to hold to security of peace and for good behavior, but in such cases the procedure must conform to these rules so far as they are applicable.
(4) Mental Health Board and Tuberculosis Board Proceedings.
Proceedings before the Mental Health Board and the Tuberculosis Board are covered by Title 25 of the North Dakota Century Code and insofar as they do not apply to criminal proceedings they are not covered by these rules.
(5) Other Proceedings.
These rules do not apply to extradition and rendition of fugitives. This procedure is covered in Chapter 29-30 of the North Dakota Century Code. These rules do apply to the imposition of fines and penalties (See U.S. v. Krapf 285 F2d 647), but not to the collection of fines and penalties. The collection and payment of criminal fines and penalties may be enforced by execution against the property of the defendant in a like manner as judgments in civil cases. (See also Rule 69 of the North Dakota Rules of Civil Procedure)
Juvenile Proceedings are covered in Chapter 27-20 of the North Dakota Century Code and these proceedings are not governed by these Rules unless the juvenile is not being proceeded against as a juvenile delinquent.
Subsection (6) is intended as an inclusive application by these rules to any procedure which is criminal in nature and is not excluded by statutory procedures provided by the legislature."
Following the reading of the Rule, Judge Smith made a MOTION for the adoption of the Rule as read and to include the words "in such cases" in the last sentence of subsection (6). The motion was seconded by John Graham.
Judge Ilvedson questioned how the drafters arrived at subsection (6) in Rule 54. He said that since the committee was superseding many statutes that the provision in subsection (6) is in direct conflict with the committee's position.
Judge Erickstad agreed with Judge Ilvedson's position, stating that if the committee "puts up the flag" indicating that these are our Rules of Procedure, except as they are changed by legislature; then to anyone who reads or communicates that to the legislature, it would look like an annotation to this result.
Judge Smith said that whatever is included in Rule 1, Scope, is inclusive, things outside are exclusive and those things outside the scope of the rules would quite possibly be handled by the legislature. This tends to say that we recognize this situation in cases that are under Rule 1.
Judge Ilvedson suggested eliminating subsection (6).
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Paul Sand suggested using the following phrase for subsection (6): "All other statutory proceedings of a criminal character not superseded by these rules shall be governed by these rules."
John Graham proposed the following language for subsection (6): "These rules shall govern all other statutes and statutory proceedings of a criminal character to the extent that they are not in conflict with the procedures provided in those statutes."
Acting Chairman Shaft read a letter submitted to the committee from Municipal Judge Harry Pearce of Bismarck, in which he restates essentially the position he had taken at the previous committee meeting, that is the September 1971 meeting, see pages 25 to 29 for the substance of discussion. A discussion of this letter followed.
Following this discussion, Acting Chairman Shaft again called for the MOTION on the floor, that is to delete subsection (b)(6) on page 2.
Judge Burdick offered some style changes in (b)(1) line 4, where it says, "or other subdivision", this should be other "political" subdivisions; subsection (b)(1) and subsection (b)(2) should read, "these rules "do not apply," rather than "shall" not apply. This is to reflect the present tense. In subsection (b)(3), the comma (,) should be removed from after "magistrates", and in (5) the language should read "These rules do not apply", rather than, "are not applicable"; and then a subparagraph so that it would read "These rules do not apply to: (a) extradition and rendition of fugitives; (b) forfeiture of property for violation of a statute of this state, etc. These changes are designed to make for easier reading, that is by stacking the points."
The Uniform Juvenile Court Act was discussed in light of Chapter 27-16.
Judge Smith accepted all of the style changes which are deemed to be include in the original motion to adopt Rule 54.
It was noted that the numbering system as adopted by the committee is incorrect and that the numbering system should be as follows: In subsection (b)(5) the subitems should be in arabic numerals, that is (i), (ii), (iii), etc.
Judge Ilvedson questioned the subtitle, that is, "Proceedings", as it applies to the original application and exception.
Judge Smith responded by stating that the subtitles were included to retain in the Rule the same name and same subtitle as the Federal Rule. Judge Ilvedson suggested subtitling section (b) "Proceedings Excepted" rather than just "Proceedings".
Judge Erickstad suggested that in keeping in line with the Rule, it would be more proper to include in subsection (a) the words after "proceedings", "in the courts of this state as prescribed in Rule 1."
John Graham made a MOTION to amend the proposed draft to include in the title of subsection (b), the word "Excepted", to read "Proceedings Excepted."
It was suggested that a possible change in subsection (a) from the title of "Courts" to "Application" might be in order. Judge Erickstad suggested then that this would not be in keeping with the intent of the drafters and that is to follow the titling of the federal rule.
Following the discussion, Judge Smith suggested reading what he felt was the determination of the committee as far as the Rule was concerned up to and through subsection (2). It is as follows:
"Rule 54. Application and Exception.
(a) Courts.
These rules govern the practice and procedure in all criminal actions and proceedings in the courts of this state as prescribed in Rule 1.
(b) Proceedings.
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(1) Ordinances. These rules do not apply to any proceeding for the collection of a fine resulting from violation of an ordinance of any municipality or other political subdivision of this state, unless the ordinance authorizes a sentence which includes confinement of a defendant upon his conviction for violation of such ordinance.
(2) Habeas Corpus. These rules do not apply to proceedings on any application for a writ of habeas corpus had in the courts of this state pursuant to Chapter 32-22 of the North Dakota Century Code or Section 25-03-21 of the North Dakota Century Code, nor to such other habeas corpus proceedings as may be authorized by the laws and decisions of the Supreme Court of this state or of the Supreme Court of the United States as may be controlling upon the courts of this state.
(3) Peace Bonds. These rules do not alter the power of magistrates authorized by law to act within the county to take and hold securing for the prevention of a public offense, or of a district judge to dispose of such peace bonds as provided by the laws of this state, except that the procedure must conform to these Rules so far as they are applicable.
(4) Mental Health Board and Tuberculosis Board Proceedings. These rules do not apply to proceedings had before a county Mental Health Board for the purpose of determining whether a proposed patient should be ordered committed to the State Hospital at Jamestown or any other hospital or school for the mentally ill or mentally deficient or tubercular persons as may be authorized by Title 25 of the North Dakota Century Code or other laws.
(5) Other proceedings. These rules do not apply to:
(i) extradition and rendition of fugitives;
(ii) forfeiture of property for violation of a statute of this state;
(iii) the collection of fines and penalties;
(iv) proceedings under the Uniform Juvenile Court Act, Chapter 27-20 of the North Dakota Century Code, so far as they are inconsistent with that Act; or
(v) an action to determine paternity of a child born out of wedlock as provided by Chapter 32-36 of the North Dakota Century Code."
The question was raised as to whether the titles in the subsections (1), (2), (3), (4) and (5) should be underlined. It was decided that the subtitle in (b), that is, "Proceedings" should not include the word "Excepted." The reason for this, it was brought out by Judge Erickstad, was that in the terminology the rules either do or do not apply in each of the submentioned cases which reflects on the subtitle "Proceedings", and Proceedings are not in all cases excepted. It was then decided as far as the underlining is concerned that this would be picked up on a final consideration of the draft. Judge Burdick proposed an additional style change. The last sentence of subsection (b)(1) where it says, "such ordinance shall authorize", should be changed to "unless the ordinance authorizes a sentence", and also "which could include" should be changed to which "includes".
John Graham withdrew his amended motion and his second also withdrew. The committee then returned to the question on the original motion.
Judge Erickstad again raised the question on habeas corpus and the reasons why it should not be governed by the criminal rules. He said that since this is a basic protection of the individual's criminal rights, the question usually does come up to the Supreme Court.
John Graham suggested that the possible reason for not wanting to include habeas corpus in criminal proceedings is that it would grant rights which do not now exist and these would apply to civil actions.
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Judge Murray called the committee's attention to the explanatory notes which accompanies Rule 54 and requested that these be read into the record; Explanatory notes for Habeas Corpus are as follows: "A proceeding in habeas Corpus is 'an independent and collateral inquiry into the validity of a conviction;' this is not a step in the criminal action. The action is civil in nature and governed by the rules and statutes applicable to civil actions. See Chapter 32-22 of the North Dakota Century Code which provides for habeas corpus as a judicial remedy. Also see Chapter 25-03-21 of the North Dakota Century Code which grants a writ of habeas corpus to patients in certain instances."
A long discussion followed concerning habeas corpus and nothing was resolved.
Judge Erickstad was satisfied that habeas corpus is properly accepted.
Judge Muggli called for the question on Rule 54 as proposed with the committee's changes. The vote on the motion was unanimous and Rule 54 is adopted.
A motion was made to adjourn; seconded; committee adjourned until 9:00 a.m. the next morning.
The meeting was called to order at 9:00 a.m. on Saturday, November 20, 1971, by Acting Chairman John Graham.
Agenda Item #7: Acting Chairman Graham first called for consideration of Agenda Item #7, but suggested that prior to taking that item into consideration, it might be more advisable to consider Agenda Item #8 first and then return to Item #7.
Agenda Item #8: This item is the consideration of Rule 37, Taking Appeal; and Petition for Writ of Certiorari. Also Rule 39, Supervision of Appeal; both Rules proposed by Robert Vogel. Acting Chairman John Graham suggested that the reason for moving to Agenda Item #8 was that it could be cleared up quickly so that the committee could give more lengthy consideration to Agenda Item #7. He added that Rule 37 has been adopted and Rule 39 is still pending. Both of these rules are subject to abrogation when the proposed rules of appellate procedure are adopted for the State of North Dakota. He suggested that Rule 37, which has been previously adopted, should remain as such unless someone moves for a readoption. The Rule was adopted July 10, 1969. To explain the reason for considering Rule 37 and 39 at this time, he read the text of the letter submitted by Mr. Vogel, which is as follows:
"Rule 37. This rule, together with Rule 39, relates to appellate procedure. The Federal Rules 37 and 39 were abrogated when the Federal Rules of Appellate Procedure were adopted. A committee of the Judiciary and of the State Bar Association is working on State Rules of Appellate Procedure and has presented to the Supreme Court its fifth draft of proposed state rules. The proposed rules cover the subject matter of Rules 37 and 39. Until such time as the State Rules of Appellate Procedure are adopted, however, (and assuming that our rules will be adopted before the appellate rules) I presume we should have an interim proposal."
"I believe we have adopted a draft of rule 37 and I think it will suffice until the Rules of Appellate Procedure are adopted.
"Rule 39. See discussion under Rule 37 above. However, we have not yet adopted a proposed Rule 39, I believe. I suggest that we adopt it in the form I have previously submitted."
There was no motion made to reconsider Rule 37, therefore it remains as adopted as of this time.
Acting Chairman Graham then called on Judge Ilvedson to read Rule 39 as proposed by Robert Vogel.
Proposed Rule 39
SUPERVISION OF APPEAL
"(a) Supervision in Appellate Court. The supervision and control of the proceedings on appeal shall be in the appellate court from the time the notice
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of appeal is filed with its clerk, except as otherwise provided in these rules. The appellate court may at any time entertain a motion to dismiss the appeal, or for directions to the lower court, or to modify or vacate any order made by the lower court or by any judge in relation to the prosecution of the appeal, including any order fixing or denying bail.
"(b) The Record on Appeal.
(1) Preparation and Form. The rules and practice governing the preparation and form of the record on appeal in civil actions shall apply to the record on appeal in all criminal proceedings, except as otherwise provided in these rules.
(2) Use of Typewritten Record. Appellate courts shall review the proceedings on the typewritten record.
"(c) Docketing of Appeal and Record on Appeal. The record on appeal shall be filed with the appellate court and the proceeding there docketed within 40 days from the date the notice of appeal is filed in the lower court, but if more than one appeal is taken from the same judgment to the same appellate court, the lower court may prescribe the time for filing and docketing, which in no event shall be less than 40 days from the date the first notice of appeal is filed. In all cases the lower court or the appellate court or, if the appellate court is not in session, any judge thereof may for cause shown extend the time for filing and docketing.
"(d) Setting the Appeal for Argument. Unless good cause is shown for an earlier hearing, the appellate court shall set the appeal for argument on a date not less than 30 days after the filing in that court of the record on appeal and as soon after the expiration of that period as the state of the calendar will permit. Preference shall be given to appeals in criminal cases over appeals in civil cases.
"Statutes affected: 29-28-18 Transmission of Papers to Supreme Court.
29-28-22 Appeal Stands for Argument at First Term.
"Changes from Federal Rule: 1. District Court" has been changed to "Lower Court" wherever the language appears.
2. Paragraph (b)2 has been changed to make review on the typewritten record compulsory instead of discretionary.
3. Paragraph (d) has been left unchanged, but the language of Section 29-28-22, N.D.C.C. could be substituted if desired."
A discussion followed concerning subsection (d) of the proposed Rule 39. The issue was raised by Judge Ilvedson and goes to an interpretation of the phraseology "the appellate court shall set the appeal for argument on a date not less than 30 days after the filing in that court..."
Judge Muggli suggested that the intent in Rule 37 was to speed up the appeals process as much as possible.
Judge Burdick made a MOTION to adopt Rule 39 as proposed. There was a second to the motion by Judge Muggli.
Acting Chairman Graham called the committee's attention to the notes on the second page of the proposed draft, that is Item #3, which notes Subsection 29-28-22. "Appeal stands for argument at first term.--An appeal in a criminal action shall stand for argument at the first term after the record is filed, unless for good cause shown the hearing is postponed to a subsequent term, but the parties or their attorneys, with the approval of the supreme court, may fix an earlier day for the hearing by stipulation."
A discussion followed in which Judge Smith suggested that it might be better not to include this particular Rule in view of the fact that the appellate rules will be adopted in the not-too-distant future and the practice as it presently stands is not as it is proposed in the Rule. Therefore, it would require that there be two appellate procedural changes in a relatively short period of time which would lend itself to a state of confusion among the practicing attorneys in the State.
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Judge Burdick suggested that subsection (a) of Rule 39 become subsection (f) of Rule 37 and then Rule 39 should be tailored only to the Supreme Court on appeals, because the appellate rules of procedure would apply only to the Supreme Court while these rules would be necessary rules as applied to all appeals including appeals to the Supreme Court.
Judge Ilvedson suggested a title such as, "Supervision in Lower Appellate Courts" for Rule 39.
Judge Burdick withdrew his last motion and MOVED for reconsideration of Rule 37; seconded by Paul Sand; no discussion; the vote was unanimous and the motion was carried.
Judge Burdick then made the MOTION that subsection (a) of Rule 39 be moved to Rule 37 and be incorporated as subsection (f). Judge Murray seconded the motion.
Judge Erickstad questioned how this might change our present procedure. The response was that it would not change the procedure in any way. It was noted further that a provision was needed as far as the lower courts were concerned. This proposal would not do any damage or cause any problems as far as the Supreme Court was concerned. It was noted that all of Rule 37 deals with appeals to any appellate court, including the Supreme Court with the singular exception of subsection (e), which makes a distinction between an appeal to the Supreme Court and an appeal to the lower appellate court. John Graham noted in Judge Erickstad's question the point brought to bear with the moving of subsection (a) in Rule 39 to subsection (f) in Rule 37 is, first of all, the supervision from the time of the appeal, which is presently the rule, but he questioned with regard to the entertaining of a motion to dismiss at any time whether that can presently be done for directions to the lower court. Judge Erickstad denied comment without further research. With regard to the question as to whether this particular item contemplated something on a motion rather than on appeal Judge Burdick stated that he thought that the sense of the second sentence in 39 (a), is that after the notice of appeal is filed, then the appellate court may dismiss it; they may entertain a motion for directions to the lower court, or may modify it. This is all with respect to the motion and this can all be done now. Judge Burdick further added that Rule 37 (a) is caused by serving and filing and states how the appeal may be taken. More specifically, the appellate court may at any time after the appeal is taken, enter any motion to dismiss the appeal.
John Graham noted that the statute dealing with when the appeal is taken, is 29-28-11, which provides, "When appeal deemed taken.--An appeal is deemed to be taken when notice thereof, served as required by sections 29-28-09 and 29-28-10, is filed in the office of the clerk of the district court of the county in which the order or judgment appealed from is made, entered, or filed, with evidence of the service or publication thereof endorsed thereon or attached thereto."
Paul Sand noted that the rule in 37 now is, that the appeal is taken when the papers are served and filed with the court from which the appeal is taken. That would be the new rule. Subsection (a) of Rule 39, to fit the jurisdiction, denotes where the defendant can obtain relief once the papers have been filed with the court.
Judge Burdick stated that he wished to have the language changed in his proposed motion, subsection (f) of Rule 37, to read:
(f) Supervision in Appellate Court. The supervision and control of the proceedings on appeal shall be in the appellate court from the time an appeal is taken, except as otherwise provided in these Rules. The appellate court, at any time after an appeal is taken, may entertain a motion to dismiss the appeal, or for directions to the lower court, or to modify or vacate any order made by the lower court or by any judge in relation to the prosecution of the appeal, including any order fixing or denying bail.
These changes were acceptable to Paul Sand as second to Judge Burdick's original motion. Judge Ilvedson moved for the question. The vote was unanimous and the motion is carried.
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Judge Burdick MOVED for the adoption of Rule 37 as amended; seconded by Paul Sand. Acting Chairman Graham then opened the motion up for discussion. Judge Glaser questioned whether under the present procedure it was necessary to specify error in a criminal matter noting that in 37 (e), there is a requirement that the error be specified to the Supreme Court. More specifically, is there any ambiguity here and would the defense attorney have to specify error as he would normally do in a civil case. It was pointed out that 37 (e) has nothing to do with the notice.
Judge Erickstad suggested that when the committee presented its final review of this Rule, that the Code Reviser request of Mr. Vogel an explanatory note for subsection (e) regarding the perfection of the notice of appeal.
Judge Glaser suggested a cross reference to Section 29-23-11 which reads: "Any error committed by the court in or by any decision, ruling, instruction or other act, and appearing in the record of the action, may be taken advantage of upon a motion for a new trial or in the supreme court on an appeal." He interpreted this to mean that there was no need to specify error.
Judge Burdick felt that this clearly did not require a need to specify error in the notice of appeal.
There being no further discussion on Rule 37 as amended, Acting Chairman Graham called for the question. The vote was unanimously in favor of the adoption of Rule 37 as amended.
Judge Erickstad called for the committee's consideration of future meeting dates for the committee. The meeting dates finally decided by the committee are as follows:
January 27, 28 and 29, 1972;
March 23, 24 and 25, 1972;
May 11, 12 and 13, 1972; and
June 26 and 27, 1972.
Acting Chairman Graham then called for the committee's consideration of Rule 39. He noted that there had been some language proposed for the Rule. Judge Smith, reading for Mr. Vogel, proposed the following language as the text for Rule 39, Supervision of Appeal. (a) Supervision of Appeal in Supreme Court. "The supervision and control of the proceedings on appeal in the supreme court shall be in accordance with the Rules of practice in effect at the time of the adoption of these rules."
Judge Glaser made a MOTION that the committee retain Rule 39 in number only with a note at the end in parentheses that "Rule 39 is intentionally omitted."
Judge Burdick suggested that they be a little more specific using language to the effect that "This rule is reserved for possible use in drafting special rules pertaining to appeals to the Supreme Court."
Judge Glaser withdrew his motion.
Judge Burdick made a MOTION that Rule 39 be preserved in blank for possible use in the drafting of special rules applicable to the Supreme Court; seconded by Mr. Sand. No discussion, the question was called and the vote was unanimously in favor of the motion and the motion passes.
Agenda Item #7: Acting Chairman Graham then called the committee's attention to Agenda Item #7, which is the consideration of Rule 11, which is Pleas, as proposed by Robert Vogel. This Rule had previously been adopted. However it is to be reconsidered in light of the proposed amendments to the Federal Rules. Acting Chairman Graham referred to Mr. Vogel's letter, part of which he had previously read, stating that it was Mr. Vogel's position that we substitute the proposed Federal Rule 11 with what the committee previously adopted. Acting Chairman Graham then entertained a motion for reconsideration of Rule 11. It was noted that it was Judge Smith who originally had the Rule and therefore it was decided that he make the proposal for the changes. Therefore Judge Smith made a MOTION to reconsider Rule 11 which was seconded by Judge Glaser. The vote was unanimous in favor of reconsideration.
Judge Smith then read the proposed amendment to the Federal Rule, to Rule 11,
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personally in open court that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw his plea, and advise the defendant that if he persists in his guilty plea the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.
(5) Time of Plea Agreement Procedure. Except for good cause shown, notification to the court of the existence of a plea agreement shall be given at the arraignment or at such other time, prior to trial, as may be fixed by the court.
(6) Inadmissibility of Plea Discussions. If a plea discussion does not result in a plea of guilty, or if a plea of guilty is not accepted or is withdrawn, or if judgment on a plea of guilty is reversed on direct or collateral review, neither the plea discussion nor any resulting agreement, plea, or judgment shall be admissible against the defendant in any criminal or civil action or administrative proceeding.
(f) DETERMINING ACCURACY OF PLEA. Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.
(g) RECORD OF PROCEEDINGS. A verbatim record of the proceedings at which the defendant enters a plea shall be made and, if there is a plea of guilty or nolo contendere, the record shall include, without limitation, the court's advice to the defendant, the inquiry into the voluntariness of the plea including any plea agreement, and the inquiry into the accuracy of a guilty plea."
Judge Smith then MOVED the adoption of Rule 11. Motion was seconded by Judge Muggli. Acting Chairman Graham called for discussion.
Judge Burdick noted that this draft was far superior to what the committee had proposed previously and that it was far more precise, but he felt that it was deficient in that it should have included the following language, "If fewer than all defendants similarly situated have been granted charge or sentence concessions pursuant to a plea agreement, the other of such defendants shall be offered equal plea agreement opportunities if they have not been sentenced and may be offered such opportunities at any time after a sentence of imprisonment is imposed and before the sentence is served."
Judge Ilvedson took issue with this language, especially the words "similarly situated", which he felt was ambiguous at best.
Judge Burdick countered by saying that "similarly situated" was meant to be considered with respect to the offense. He noted that with respect to the individual already committed to the penitentiary, that the calling back for reconsideration based on a plea, is permissive and not mandatory.
Judge Erickstad also disagreed with Judge Burdick's proposal in that calling a person back from the penitentiary for reconsideration of sentence would be disruptive of the entire procedure. Once the person has been committed to an institution the trial court has relinquished its jurisdiction and by this procedure the court would be retaining jurisdiction.
Judge Glaser questioned Judge Burdick regarding the situation in which the state's attorney wished to plea bargain with one of the defendants in a codefendant situation where one may return state's evidence. He noted that under Judge Burdick's proposal the other defendants would also be required to have a plea bargain.
Judge Smith for purposes of discussion seconded Judge Burdick's motion. Judge Burdick, noting that there was a great deal of opposition to his proposal in its mandatory state, revised his MOTION so that it would be discretionary. As revised, the motion reads as follows:
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which is as follows:
"Rule 11. Pleas
(a) ALTERNATIVES. A defendant may plead not guilty, guilty, or nolo contendere. If a defendant refuses to plead or if a defendant corporation fails to appear, the court shall enter a plea of not guilty.
(b) NOLO CONTENDERE. A defendant may plead nolo contendere only with the consent of the court. Such a plea shall be accepted by the court only after due consideration of the views of the parties and the interest of the public in the effective administration of justice.
(c) ADVICE TO DEFENDANT. The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge to which the plea is offered;
(2) the mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered;
(3) that the defendant has the right to plead not guilty, or to persist in that plea if it has already been made, or to plead guilty; and
(4) that if he pleads guilty or nolo contendere there will not be a further trial of any kind, so that by pleading guilty he waives the right to a trial by jury or otherwise and the right to be confronted with the witnesses against him.
(d) INSURING THAT THE PLEA IS VOLUNTARY. The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant's willingness to plead guilty or nolo contendere results from prior discussions between the attorney for the government and the defendant or his attorney.
(e) PLEA AGREEMENT PROCEDURE.
(1) In General. The attorney for the prosecution and the attorney for the defendant may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty or nolo contendere to a charged offense or to a lesser or related offense, the attorney for the prosecution will move for dismissal of other charges, or will recommend or not oppose the imposition of a particular sentence, or will do both. The court shall not participate in any such discussions.
(2) Notice of Such Agreement. If a plea agreement has been reached by the parties which contemplates entry of a plea of guilty in the expectation that a specific sentence will be imposed or that other charges before the court will be dismissed, the court shall require the disclosure of the agreement in open court at the time the plea is offered. Thereupon the court may accept or reject the agreement, or may defer its decision as to acceptance or rejection until receipt of a presentence report.
(3) Acceptance of Plea. If the court accepts the plea agreement, the court shall inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement or another disposition more favorable to the defendant than that provided for in the plea agreement.
(4) Rejection of Plea. If the court rejects the plea agreement, the court shall inform the parties of this fact, advise the defendant
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"If fewer than all defendants similarly situated have been granted charge or sentence concessions pursuant to a plea agreement, the other of such defendants may be offered equal plea agreement opportunities if they have not been sentenced or, if they have been sentenced, at any time before the sentence is served."
John Shaft seconded the motion for purposes of discussion.
Acting Chairman Graham accepted the motion and the second and then called for discussion.
John Shaft questioned whether it was the responsibility of the court or prosecutor to make the request. Judge Burdick responded, the request should be made by the court.
Judge Burdick noted that this Rule would be important only after the defendant had already made his plea and before the sentence has been passed or served.
Judge Ilvedson again noted that "similarly situated" is an ambiguous term and would lead to a great deal of confusion.
Judge Burdick then made a MOTION to adopt his proposal as subsection (h) to Rule 11, seconded by Judge Murray.
Judge Ilvedson noted that he was not in favor of the Rule.
Acting Chairman Graham called for the question as there was division on the vote. A hand vote was counted and the motion failed.
The committee then returned to a consideration of Rule 11, as proposed. Judge Glaser noted that the Rule was couched in terms of "attorney for the defendant." He questioned the effect of the language where the defendant is not represented by counsel.
Judge Smith noted that the necessity for this type of language could be obviated by considering that when the defendant is acting without a lawyer he is acting as his own attorney and thereby he becomes the attorney for the defense. (Note page 2, subsection (e)(1)]. Judge Smith called the committee's attention to subsection (c) and said that the committee is apparently governed by this provision whether the committee adopts it as a Rule or according to Boykin v. Alabama, 89 S.Ct. 1709, 1712; 395 U.S. 238.
Judge Erickstad suggests that subsection (g) requires a verbatim record. and he noted that the 1971 Session of the legislature had amended the statute to specifically avoid a verbatim record in other than the district courts. Therefore if the committee adopts this Rule, it will be in conflict with that objective. He added that he was not objecting to them, but noted that if (g) were applied to all North Dakota courts, it presents a practical problem as applied to municipal courts which do not have reporters.
Judge Glaser, as a Judge of County Court with Increased Jurisdiction, noted that he couldn't function with this Rule.
Judge Erickstad suggested that it would be better to make some type of amendment rather than to throw confusion into the lower courts.
Judge Burdick noted the statutory prohibition against the use of recording equipment other than shorthand where it imposes an undue burden upon the courts. He then suggested dropping the word "verbatim".
Judge Erickstad noted that the American Bar Association Code of Minimum Standards suggests a verbatim record so he didn't feel that the effect of a record should be reduced by eliminating the word "verbatim".
Acting Chairman Graham called for further discussion and noted there was no motion to amend. There was no discussion and the vote was called for the adoption of Rule 11. The motion carried by unanimous vote, thus Rule 11 is adopted.
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Paul Sand noted for the record that in voting in favor of this Rule, he was not relinquishing his opposition to the nolo contendere provision. Acting Chairman Graham noted that the agenda was completed to the point where the committee will undertake a final consideration of the Rules.
Paul Sand made a MOTION to adjourn, seconded by the rest of the members. The vote is in favor of adjournment and the meeting is concluded.
These minutes are respectfully submitted.
Charles M. Travis
Criminal Code Revisor