Joint Procedure Committee Meeting
Scheduled on Thursday, November 18, 1982 @ 9:00 AM
MINUTES OF MEETING
Joint Procedure Committee
November 18-19, 1982
CALL TO ORDER
The meeting was called to order at 9:00 a.m., November 18, 1982, by Justice Paul M. Sand, Chairman.
ATTENDANCE
Present
Hon. Eugene A. Burdick
Hon. Robert C. Heinley
Hon. Frank J. Kosanda
Hon. Lawrence A. Leclerc
Hon. Kirk Smith
Mr. William A. Hill
Mr. Herbert L. Meschke
Absent
Hon. Gerald G. Glaser
Hon. William S. Murray
Hon. James H. O'Keefe
Hon. Robert Vogel
Mr. Leonard Bucklin
Mr. Ward M. Kirby
Mr. Larry Kraft
Mr. James L. Lamb
Mr. LeRoy A. Loder
Mr. David L. Peterson
APPROVAL OF MINUTES
Judge Burdick MOVED the minutes be approved as submitted. Judge Kosanda seconded the motion. Motion CARRIED.
RULE 53, NDRCivP
Judge Kosanda MOVED the adoption of Rule 53, NDRCivP, in principle. Judge Smith seconded the motion.
Judge Burdick MOVED to amend proposed Rule 53, NDRCivP, as follows:
Line 64: Delete "Commission of Three";
Line 70: Delete "a commission of" and insert "one or";
Line 71: After the period insert "If three masters are appointed a majority of them shall determine its action and report";
Line 73: Delete "shall" and insert "must";
and to adopt Rule 53, NDRCivP, as amended. Judge Kosanda seconded the motion. Motion CARRIED.
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MASTERS
(a) Appointment and Compensation.
(1) The court in which any action is pending may appoint a special master therein. As used in these rules the word "master" includes a referee, an auditor, and an examiner. When the court shall state in its order of appointment that the reference is made necessary by press of business, the fees of the master, as taxed and allowed by the court, shall be paid out of the county treasury, as the salaries of county officers are paid. In other cases the compensation to be allowed to a master shall be fixed by the court, and shall be charged upon such of the parties or paid out of any fund or subject matter of the action which is in the custody and control of the court as the court may direct. The master shall not retain his report as security for his compensation; but when the party ordered to pay the compensation allowed by the court does not pay it after notice and within the time prescribed by the court, the master is entitled to a writ of execution against the delinquent party.
(2) Either party may object to the appointment of any person as master for the same cause for which challenges for cause may be taken to a petit juror in the trial of a civil action.
(3) The objections taken to the appointment of any person as master must be heard and disposed of by the court. Affidavits may be read and witnesses examined as to such objections.
(4) The masters before proceeding to hear any testimony must be sworn well and truly to hear and determine the facts referred to them and true findings render according to the evidence.
(b) Reference. A reference to a master shall be the exception and not the rule. In actions to be tried by a jury, a reference shall be made only when the issues are complicated; in actions to be tried without a jury, save in matters of account, a reference shall be made only upon a showing that some exceptional condition requires it.
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(c) Powers. The order of reference to the master may specify or limit his powers and may direct him to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of the master's report. Subject to the specifications and limitations stated in the order, the master has and shall exercise the power to regulate all proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. He may require the production before him of evidence upon all matters embraced in the reference, including the production of all books, papers, vouchers, documents, and writings applicable thereto. He may rule upon the admissibility of evidence unless otherwise directed by the order of reference and has the authority to put witnesses on oath and may himself examine them and may call the parties to the action and examine them upon oath. When a party so requests, the master shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations as provided in Rule 103, NDREv, for a court sitting without a jury.
(d) Masters in Eminent Domain Actions. In an eminent domain action in which the condemnor and the owner of the property sought to be taken for public use waive the right to have a jury ascertain just compensation or determine the damages, the court, upon request of a party, may appoint one or three masters to determine the issue of just compensation or damages. If three masters are appointed a majority of them shall determine their action and report. Trial of all issues other than compensation or damages must be by the court.
(e) Proceedings.
(1) Meetings. Whenever a reference is made, the clerk shall forthwith furnish the master with a copy of the order of reference. Upon receipt thereof, unless the order of reference otherwise provides, the master shall forthwith set a time and place for the first meeting of the parties or their attorneys to be held within 20 days after the date of the order of reference and shall notify the parties or their attorneys. The master shall proceed with all reasonable diligence. Either party, on notice to the parties and master, may apply to the court for an order requiring the
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master to speed the proceedings and to make his report. If a party fails to appear at the time and place appointed, the master may proceed ex parte or, in his discretion, adjourn the proceedings to a future day, giving notice to the absent party of the adjournment.
(2) Witnesses. The parties may procure the attendance of witnesses before the master by the issuance and service of subpoenas as provided in Rule 45. If without adequate excuse a witness fails to appear or give evidence, he may be punished as for a contempt and be subjected to the consequences, penalties, and remedies provided in Rules 37 and 45.
(3) Statement of Accounts. Whenever matters of accounting are in issue before the master, he may prescribe the form in which the accounts must be submitted and in any proper case may require or receive in evidence a statement by a certified public accountant who is called as a witness. Upon objection of a party to any of the items thus submitted or upon a showing that the form of statement is insufficient, the master may require a different form of statement to be furnished, or the accounts or specific items thereof to be proved by oral examination of the accounting parties or upon written interrogatories or in such other manner as he directs.
(f) Report.
(1) Contents and Filing. The master shall prepare a report upon the matters submitted to him by the order of reference and, if required to make findings of fact and conclusions of law, he shall set them forth in the report. He shall file the report with the clerk of the court and in an action to be tried without a jury, unless otherwise directed by the order of reference, shall file with it a transcript of the proceedings and of the evidence and the original exhibits. The clerk shall forthwith mail to all parties notice of the filing.
(2) In Non-Jury Actions. In an action to be tried without a jury, the court shall accept the master's findings of fact unless clearly erroneous. Within 10 days after being served with
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notice of the filing of the report any party may serve upon the other parties written objections to the report. Application to the court for action upon the report and upon objections thereto must be by motion and upon notice as prescribed in Rule 6(d). The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.
(3) In Jury Actions. In an action to be tried by a jury the master shall not be directed to report the evidence. His findings upon the issues submitted to him are admissible as evidence of the matters found and may be read to the jury, subject to the ruling of the court upon any objections in point of law which may be made to the report.
(4) Stipulations as to Findings. The effect of a master's report is the same whether or not the parties have consented to the reference; but, when the parties stipulate that a master's findings of fact shall be final, only questions of law arising upon the report may thereafter be considered.
(5) Draft Report. Before filing his report, a master may submit a draft thereof to counsel for all parties for the purpose of receiving their suggestions.
RULE 16, NDRCrimP
Judge Smith MOVED to amend the proposed Rule 16, North Dakota Rules of Criminal Procedure, as follows:
Where the word "request" appears add "written" or "in writing" where indicated by the context.
Judge Heinley seconded the motion. Motion CARRIED.
Judge Burdick MOVED to approve Rule 16, NDRCrimP, as submitted and amended. Judge Heinley seconded the motion. Motion CARRIED.
RULE 16
DISCOVERY AND INSPECTION
(a) Disclosure of Evidence by Prosecuting Attorney.
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(1) Information Subject to Disclosure.
(A) Statement of Defendant. Upon written request of a defendant, the prosecuting attorney shall permit the defendant to inspect and copy or photograph (i) any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody, or control of the prosecution, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney; (ii) the substance of any oral statement that the prosecutor intends to offer in evidence at the trial made by the defendant, whether before or after arrest, in response to interrogation by any person then known to the defendant to be an agent for the government; and (iii) recorded testimony of the defendant before a grand jury concerning the offense charged. If the defendant is a corporation, partnership, association, or labor union, the court may grant the defendant, upon its motion, discovery of relevant recorded testimony of any witness before a grand jury who (i) was, at the time of his testimony, so situated as an officer or employee as to have been able legally to bind the defendant in respect to conduct constituting the offense, or (ii) was, at the time of the offense, personally involved in the alleged conduct constituting the offense and so situated as an officer or employee as to have been able legally to bind the defendant in respect to that alleged conduct in which he was involved.
(B) Defendant's Prior Record. Upon written request of the defendant, the prosecution shall furnish to the defendant a copy of his prior criminal record, if any, as is within the possession, custody, or control of the prosecution, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney.
(C) Documents and Tangible Objects. Upon written request of a defendant, the prosecuting attorney shall permit the defendant to inspect and copy or photograph books,
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papers, documents, photographs, tangible objects, buildings, or places, or copies or portions thereof, which are within the possession, custody, or control of the prosecution, and which are material to the preparation of his defense, or are intended for use by the prosecutor as evidence in chief at the trial, or were obtained from or belong to the defendant.
(D) Reports of Examinations and Tests. Upon written request of a defendant the prosecuting attorney shall permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, within the possession, custody, or control of the prosecution, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney, and which are material to the preparation of the defense or are intended for use by the prosecutor as evidence in chief at the trial.
(2) Information Not Subject to Disclosure. Except as provided in paragraphs (A), (B), and (D) of paragraph (1), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal prosecution documents made by prosecution agents in connection with the investigation or prosecution of the case, or of statements made by prosecution witnesses or prospective prosecution witnesses (other than the defendant) to agents of the prosecution except as provided in subdivision (f) of this Rule.
(b) Disclosure of Evidence by the Defendant.
(1) Information Subject to Disclosure.
(A) Documents and Tangible Objects. If the defendant, in writing, requests disclosure under subdivision (a)(1)(C) or (D), upon compliance with the request by the prosecution, the defendant, upon written request of the prosecution, shall permit the prosecution to inspect and copy or photograph books, papers, documents, photographs, tangible objects, or copies or portions thereof, which the defendant intends to produce in chief at the trial and which are within its possession, custody, or control.
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(B) Reports of Examinations and Tests. If the defendant, in writing, requests disclosure under subdivision (a)(1)(C) or (D), upon compliance with the request by the prosecution, the defendant, on written request of the prosecution, shall permit the prosecution to inspect and copy or photograph any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession or control of the defendant, which the defendant intends to introduce as evidence in chief at the trial or which were prepared by a witness whom the defendant intends to call at the trial when the results or reports relate to his testimony.
(2) Information Not Subject to Disclosure. Except as to scientific or medical reports, this subdivision does not authorize the discovery or inspection of reports, memoranda, or other internal defense documents made by the defendant or his attorneys or agents in connection with the investigation or defense of the case, or of statements made by the defendant, or by prospective prosecution or defense witnesses, to the defendant, his agents, or attorneys.
(c) Continuing Duty to Disclose. If, before or during trial, a party discovers additional evidence or material previously requested or ordered which is subject to discovery or inspection under this Rule, he shall promptly notify the other party or his attorney or the court of the existence of the additional material.
(d) Regulation of Discovery.
(1) Protective and Modifying Orders. Upon a sufficient showing the court at any time may order that the discovery or inspection be denied, restricted, or deferred or make such other order as is appropriate. Upon motion by a party, the court may permit the party to make the showing, in whole or in part, in the form of a written statement to be inspected by the court in camera. If the court enters an order granting relief following a showing in camera, the entire text of the party's statement must be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.
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(2) Failure to Comply with Request. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Rule or with an order issued pursuant to this Rule, the court may order that party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed, relieve the requesting party from making a disclosure required by this Rule, or it may enter such other order as it deems just under the circumstances. The court may specify the time, place, and manner of making the discovery and inspection and may prescribe such terms and conditions as are just.
(e) Alibi Witnesses. Discovery of alibi witnesses is governed by Rule 12.1.
(f) Demands for Production of Names, Addresses, and Statements of Witnesses; Statements of Codefendants; Statements of Other Persons.
(1) Names, Addresses, and Statements of Prosecution Witnesses. Upon written request of the defendant, the prosecution shall furnish to the defendant a written list of the names and addresses of all prosecution witnesses, and any statements made by them, whom the prosecuting attorney intends to call in the presentation of the case in chief, together with any records of prior felony convictions of any of those witnesses which are within the knowledge of the prosecuting attorney. If a written request for discovery of the names, addresses, and statements of witnesses has been made by a defendant, the prosecuting attorney must be allowed to perpetuate the testimony of those witnesses in accordance with the provisions of Rule 15.
(2) Statements of Codefendants. Upon written request of the defendant, the prosecution shall permit the defendant to inspect and copy or photograph any relevant written or recorded confession, admission, or statement of a codefendant, or copies thereof, within the possession, custody, or control of the prosecution, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney.
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(3) Statements of Other Persons. Upon written request of the defendant, the prosecution shall permit the defendant to inspect and copy or photograph any relevant written or recorded statement of any person, or copies thereof, within the possession, custody, or control of the prosecution, the existence of which is known to the prosecuting attorney and which is not available to the defendant under subdivision (a) or paragraphs (1) or (2) of this subdivision.
(4) The term "statement," as used in this subdivision, means:
(i) a written statement made by the witness, codefendant, or other person and signed or otherwise adopted by him; or
(ii) a stenographic, mechanical, electrical, or other record, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by the witness, codefendant, or other person to an agent of the prosecution and recorded contemporaneously with the making of the oral statement.
RULE 17, NDRCrimP
Judge Leclerc MOVED to adopt the following proposed amendment to Rule 17, NDRCrimP:
(h) Information Not Subject to Subpoena. Statements made by witnesses or prospective witnesses are not subject to subpoena under this Rule but are subject to production in accordance with Rule 16.
and to adopt the Rule as amended. Judge Kosanda seconded the motion. Motion CARRIED.
SUBPOENA
(a) For Attendance of Witnesses and Production of Evidence; Form; Issuance.
(1) Every subpoena must be issued by the magistrate or the clerk of court, state the name of the court and the title of the action, and command each person to whom it is directed to attend and give testimony at a time and place therein specified. The clerk or magistrate shall issue a subpoena, or a subpoena for the production of documentary evidence or objects, signed
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but otherwise in blank, to a party requesting it, who shall fill it in before service.
(2) A subpoena, or a subpoena for the production of documentary evidence or objects, may also be issued by the attorney for a party to any proceeding in the name of the court in like manner and with the same effect as if issued by the clerk or magistrate. Such subpoena must be subscribed in the name of the attorney, together with his office address, and must identify the party for whom he appears.
(b) Defendant Unable to Pay. The court shall order at any time that a subpoena be issued for service on a named witness upon an ex parte application of a defendant upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense. If the court orders a subpoena to be issued, the costs incurred by the process and the fees of the witness so subpoenaed must be paid in the same manner in which similar costs and fees are paid in the case of a witness subpoenaed in behalf of the prosecution.
(c) For Production of Documentary Evidence and of Objects. A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or other objects therein designated. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents, or objects designated in the subpoena be produced before the court at a time before the trial or before they are offered in evidence and upon their production may permit the books, papers, documents, or objects or portions thereof to be inspected by the parties and their attorneys.
(d) Service.
(1) A subpoena may be served by any peace officer or any other person who is not a party and who is 18 or more years of age. Service of a subpoena shall be made by delivering a copy thereof to the person named and by tendering to him the fee for one day's attendance and the mileage allowed by law. Fees and mileage need not be tendered to the witness upon service of a subpoena issued in behalf of the prosecution or in behalf of a defendant unable to pay pursuant to subdivision (b).
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(2) If a defendant to an action shall deposit with the sheriff traveling fees and fees for one day's attendance of any witness, a subpoena for that witness, and a written demand that that witness be served by mail, telegraph, or telephone, the sheriff shall serve and make return of the subpoena by one or more of the following methods:
(i) mailing a copy of the subpoena to the witness by registered or certified return-receipt requested mail.
(ii) telegram to the witness, setting forth the subpoena in full. The sheriff shall demand from the telegraph company a service message showing the delivery or nondelivery of the telegram and such officer, upon receipt of the message, shall make his return accordingly. The service message, if it shows delivery, is prima facie evidence of the service.
(iii) reading the subpoena over the telephone to the person to be served. If the person upon whom service is made acknowledges his identity over the telephone to the officer making the service, the acknowledgment is prima facie evidence of service and the officer shall make his return accordingly.
A deposit for fees and mileage is not required if the fees and mileage are to be paid by this state or any of its political subdivisions. If service is made pursuant to this subdivision, the sheriff, in lieu of mileage, per diem, and delivery, must be reimbursed for the cost of postage, telegrams, or telephone calls. If the witness so served fails to appear, the sheriff shall return the deposit to the party who made the same.
(3) A witness personally served with a subpoena, except when the fees and mileage of the witness are to be paid by this state or any of its political subdivisions, may demand his fee and mileage for one day's attendance at the time the subpoena is served upon him. If those fees are not paid the witness is not obliged to obey the subpoena. The fact of the demand and nonpayment must be stated in the return. A witness served with a subpoena by mail, telephone, or telegraph,
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upon his appearance, may demand and shall receive from the sheriff his fee and mileage for one day's attendance, unless the fees of that witness are to be paid by this state or any of its political subdivisions.
(e) Place of Service.
(1) In North Dakota. A subpoena requiring the attendance of a witness at a hearing or trial may be served anywhere within North Dakota.
(2) Witness Outside State. Service on a witness outside this state may be made only as provided by law.
(f) For Taking Deposition; Place of Examination.
(1) Issuance. An order to take a deposition authorizes the issuance by the clerk of court or a magistrate of subpoenas for the persons named or described therein.
(2) Place. A witness whose deposition is to be taken may be required by subpoena to attend at any place designated by the trial court, taking into account the convenience of the witness and the parties.
(g) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon him is considered a contempt of the court from which the subpoena issued.
(h) Information Not Subject to Subpoena. Statements made by witnesses or prospective witnesses are not subject to subpoena under this rule but are subject to production in accordance with Rule 16.
RULE 8(a), NDRCivP
Judge Leclerc MOVED not to adopt any amendment to Rule 8, NDRCivP. Judge Burdick seconded the motion. Motion CARRIED.
RULE 5(d)(3), NDRCivP
Judge Burdick MOVED to carry Rule 13, North Dakota Rules of Appellate Procedure, into the Rules of Court for the conduct of business in the trial courts; make this Rule 11.5, NDROC, and renumber the present Rule 11.5 to 11.6, NDROC. Judge Leclerc seconded the motion. Motion CARRIED.
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RECESS
The meeting recessed to 12:45 p.m.
CALL TO ORDER
The Committee was called to order at 1:00 p.m. November 18, 1982, by Justice Paul M. Sand, Chairman.
MEETING WITH CLERK OF SUPREME COURT
Luella Dunn and Joanne Eckroth, clerk and deputy clerk of the Supreme Court, appeared before the committee and explained problems they are experiencing with multiple appeals filed on different dates from the same judgment or order. Presently, they collect a docket fee for each appeal and assign separate numbers for each.
Judge Burdick MOVED to have the staff attorney draft an amendment to Rule 12, North Dakota Rules of Appellate Procedure, to provide that the party first filing an appeal is the appellant for purposes of docketing the appeal and paying the docket fee. The motion was seconded by Mr. Meschke. Motion CARRIED.
MEMORANDUM RE SUPERSEDEAS BONDS AND STAYS
Judge Smith MOVED to indefinitely postpone action on further consideration of supersedeas bonds and stays. Judge Kosanda seconded the motion. Motion CARRIED.
RULES 50, 59, 60, and 62, NDRCivP EXPLANATORY NOTES
Judge Burdick MOVED to approve the proposed explanatory notes to Rules 50, 59, 60 and 62, North Dakota Rules of Civil Procedure. Judge Kosanda seconded the motion. Motion CARRIED.
RULE 50
EXPLANATORY NOTE
Rule 50 is nearly identical to Rule 50, FRCivP, except for additions to subdivision (b) providing that a motion for judgment notwithstanding the verdict may be made upon the files, exhibits, and minutes of the court; pertinent facts not a part of the minutes may be shown by affidavits; and either party may procure a complete or partial transcript of the proceedings for use upon hearing of the motion. These provisions were added [effective January 1, 1979] to clarify the basis
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of a motion for judgment notwithstanding the verdict and were derived from Rules 50.02 and 59.02, Minnesota Rules of Civil Procedure.
Subdivision (b) was amended in 1983, effective ____________________, 1983, to provide that a party who has moved for a directed verdict may move to have the verdict and judgment set aside and to have judgment entered in accordance with his motion for a directed verdict not later than 10 days after "notice of" entry of judgment, rather than entry of judgment. The same change was made in subdivision (c)(2).
It is emphasized that unless counsel informs the court that a ruling on both motions for a new trial and judgment notwithstanding the verdict is to be made, it will be considered a waiver of whatever motion the court did not rule on. Both motions must be pursued in the trial court. Anderson v. Kroh, 301 N.W.2d 359 (N.D. 1981).
RULE 59
EXPLANATORY NOTE
Rule 59 concerns the same subject matter as Rule 59, FRCivP, but is more extensive in content than the federal rule. It is derived partially from Rule 59, FRCivP, and incorporates most of Chapter 28-19, NDRC 1943.
Subdivisions (a), (e) [only the provision up to the word "but"], (f), and (g) are identical to Sections 28-1901, 28-1905, 28-1906 and 28-1907, NDRC 1943, respectively.
Subdivision (b) is identical to Section 28-1902, NDRC 1943, except for the addition to paragraph 7 of the words "when required" and the rewriting of paragraph 8 to broaden its scope.
As originally promulgated, subdivision 8(c) was identical to Section 281903, NDRC 1943. The subdivision was amended in 1983, effective ___________, 1983, to provide that the time for making a motion for a new trial is triggered by the "notice of entry of judgment." The amendment was made to eliminate any confusion that may have been caused by having the time begin with "the return of the verdict or rendition of the decision" and to ensure that a party has knowledge, through notice of entry, that a judgment has been entered, before the time to make a motion for a new trial begins to run.
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As originally promulgated, subdivision (d) was identical to Section 28-1904, NDRC 1943, but was amended [effective January 1, 1979] to clarify and expand the basis of a motion for a new trial. The amendments to subdivision (d) were derived from Rule 59.02, Minn. Rules of Civ. Proc.
Subdivision (e) was amended to avoid confusing and misleading negative impressions regarding the notice of hearing on the motion for a new trial.
Subdivision (h) is derived from Rule 59(a), FRCivP, but also specifies that the court may limit a new trial to one or more issues or to the taking of additional testimony on one or more issues.
Subdivisions (i) and (j) are identical to Rules 59(d) and 59(e), FRCivP, respectively, except for the specification in subdivision (i) that the court may order a new trial on its own initiative not later than 10 days after "notice of" entry of judgment, by amendments effective _____________, 1983, and in (j) that the motion be served not later than 10 days after "notice" of entry of judgment, rather than after entry of the judgment.
RULE 60
EXPLANATORY NOTE
Rule 60 is nearly identical to Rule 60, FRCivP, except for minor changes to conform to the court system of North Dakota and addition of a provision to subdivision (b) regarding obtaining leave from an appellate court to make a motion for relief. Subdivision (b) was amended in 1983, effective __________, 1983, to provide that a motion for relief for reasons (i), (ii), and (iii) be made not more than one year after "notice that" the judgment or order was entered.
RULE 62
EXPLANATORY NOTE
Rule 62 is derived from Rule 62, FRCivP, with several added provisions, and changes to subdivisions (a), (b), (c), (d), and (e) to conform to the court system of North Dakota. Subsection (a) was amended in 1983, effective _______________, 1983, to provide that no execution shall issue upon a judgment nor shall proceedings be taken for its enforcement until the expiration of 10 days after "notice of" its entry, rather than its entry. Federal subdivision (f), concerning a stay according to state law, was deleted.
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In its place, subdivisions (f), (g), (h), (i), (j) and (k), derived from Sections 28-2712 through 28-2717, NDRC 1943, were inserted. These contain mostly provisions requiring an undertaking to stay certain proceedings. Subdivisions (1) and (m) are identical to subdivisions (g) and (h) in the federal rule. Subdivision (n), taken from Section 28-2807, NDRC 1943, was added setting a time limit on how long an order may be made effective.
RULE 54, NDRCivP - Explanatory Note
Judge Burdick MOVED to adopt the explanatory note to Rule 54, North Dakota Rules of Civil Procedure, with the proposed amendments. Judge Kosanda seconded the motion. Motion CARRIED.
EXPLANATORY NOTE
Rule 54 is derived from Rule 54, FRCivP, with more detailed provisions concerning the allowance of costs [subdivision (e)] and for death of a party after verdict, but before judgment [subdivision (d)], taken from Section 28-2005, NDRC 1943.
Subdivision (e) was amended in 1983, effective _________________, 1983, by deleting all of the former subdivision (e) after the first sentence and deleting all of former subdivision (f), and inserting the present provisions of subdivision (e). The change was made to eliminate the cumbersome procedure of taxation and retaxation of costs and disbursements, and to provide that a copy of the statement of costs and disbursements must accompany the notice of entry of judgment.
RULE 5.1, NDRCrimP - Explanatory Note
Judge Burdick MOVED to amend the proposed explanatory note to Rule 5.1, North Dakota Rules of Criminal Procedure, to add on line 71, before the word "adopted," "in conformity with North Dakota Century Code § 29-07-01.1," and to adopt the explanatory note as amended. Mr. Meschke seconded the motion. Motion CARRIED.
EXPLANATORY NOTE
Rule 5.1, which was originally 5(c) of the Federal Rules, is included as a separate Rule for the sake of clarity and regulates the preliminary examination before the magistrate. The function of the examination is to determine whether the showing of probable cause is sufficient to hold the accused for further action.
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Subdivision (a) is an adaptation of the proposed amendment to Rule 5.1 [48 F.R.D. 567 (1970)] and tracks with the proposed Federal Rule, with one exception. The exception is the provision which requires that a finding of probable cause shall be based upon substantial evidence; the Rules Committee found this provision to be unnecessary and undesirable. The language of the Rule tracks existing case law on the subject.
The provision in subdivision (a) which requires that the magistrate hold the defendant to answer in the court of the county in which the offense is committed is intended to make clear that where the defendant is arrested in a county other than in which the offense was committed, he shall be returned to the county in which the offense was committed for preliminary examination. Subdivision (a) also provides that the preliminary examination is not the proper place to raise the issue of illegally obtained evidence. See Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), in which the Supreme Court said:
"the Commissioner here had no authority to adjudicate the admissibility at petitioner's later trial of the heroin taken from his person. That issue was for the trial court. This is specifically recognized by Rule 41(e) of the Criminal Rules, which provides that a defendant aggrieved by an unlawful search and seizure may ' * * * move the district court * * * to suppress for use as evidence anything so obtained on the ground that * * *' the arrest warrant was defective on any of several grounds."
Motions for excluding illegally obtained evidence may be made and heard only in the trial court. [See Rule 12.]
The definition of "probable cause" required at the preliminary examination is similar to that required to issue a warrant (Rule 4) and to hold, at the initial appearance, a defendant arrested without a warrant (Rule 5). The objective of subdivision (a) is to reduce the number of preliminary motions. Subdivision (a) further provides that a defendant shall not be subjected to trial where the admissible evidence is inadequate. The fact that a defendant is not entitled to object to evidence alleged to have been illegally obtained does not deprive him of an opportunity for a pretrial determination of the admissibility of evidence. He can raise such an objection prior to trial in accordance with the provisions of Rule 12.
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Subdivision (b) is a restatement of existing law (Section 29-07-18, N.D.C.C.) and differs somewhat from the Federal Rule, which permits the magistrate to discharge the defendant as well as the complaint where no finding of probable cause is made. The prosecution is not precluded from issuing a new complaint. Under the provisions of Section 29-07-18, the prosecuting attorney may "appeal" the findings of the magistrate to a judge of the district court.
Subdivision (c) is a restatement of existing law [Section 29-07-26, N.D.C.C. (Magistrate must deliver papers to district court.)] and is intended to provide a method for making available to counsel the record of the preliminary examination.
The Supreme Court on February 12, 1982, in conformity with North Dakota Century Code § 29-07-01.1, adopted as an emergency rule an amendment to subdivision (c). The amendment was adopted as a permanent rule on May 20, 1982. The amendment provided that if a transcript is requested by a defendant, "the cost of the transcript and related costs" shall be borne by the "state," rather than "its cost" shall be borne by the "county wherein the venue of the alleged offense was originally laid" if the magistrate finds that the defendant is financially unable to pay for it without undue hardship. The amendment was made to conform with legislative intent in transferring certain court costs from the counties to the state.
RULE 35, NDRCrimP - Explanatory Note
Judge Burdick MOVED to approve the Explanatory Note to Rule 35, North Dakota Rules of Criminal Procedure as amended. Judge Heinley seconded the motion. Motion CARRIED.
EXPLANATORY NOTE
Rule 35 is derived from Rule 35, F.R.Crim.P. One modification in language is the addition of the word "sentencing" to modify court. This is intended to make perfectly clear that only the court which rendered judgment may correct an illegal sentence.
The Rule encompasses two forms of relief: reduction of sentence, and correction of sentence either illegal in form or manner of imposition. In either instance: (1) it is presupposed that the conviction upon which the sentence has been imposed is valid; (2) the court is empowered to act on its own motion; and (3) the sentencing court is prohibited from acting during the pendency of the appeal through the United States Supreme Court.
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This motion "is essentially a plea for leniency and presupposes a valid conviction." (Poole v. United States, 250 F.2d 396, 401 (D.C.Cir. 1957), and United States v. Ellenbogen, 390 F.2d 537, 543 (2d Cir. 1968), cert. denied, 393 U.S. 918, 89 S.Ct. 241, 21 L.Ed.2d 206 (1968), rehearing denied, 399 U.S. 917, 90 S.Ct. 2187, 26 L.Ed.2d 576 (1970). This plea for leniency is addressed to the discretion of the sentencing court, and may be granted if the court decides that the sentence originally imposed, for any reason, was unduly severe. (Wright, Federal Practice and Procedure: Criminal, § 586, p. 568 (1968). Ordinarily a court is not required to hear testimony or arguments on a motion for reduction of sentence. This is discretionary with the district court. (Jacobsen v. United States, 260 F.2d 122 (8th Cir. 1958).) If the court does decide to reduce the sentence, the defendant need not be present nor need he be allowed to make a statement in his behalf before the reduced sentence is imposed. (Wright, supra, § 586, pp. 570-571.) A motion for reduction of sentence must comply with Rule 47, but in the case of pro se requests by prisoners, the court will entertain the request although contained in an informal letter from the prisoner to the sentencing judge. (8A Moore's Federal Practice, ¶ 35.02(1), p. 35-5 (Cipes, 2d Ed. 1970).) An excessive sentence is void only as to the excess, and is to be corrected, not by absolute discharge of or new trial for the prisoner, but by an appropriate amendment to the invalid sentence by the court of original jurisdiction. (Wright, supra, § 582, p. 559.) A sentence by a court having jurisdiction of the person and the offense committing a person to an authorized penal institution but for a term in excess of what the law permits is not void as to the period of lawful imposition, but void only as to the excess beyond that which could have been lawfully imposed. (Waltman v. Austin, 142 N.W.2d 517, Syllabus ¶ 2 (N.D. 1966).)
It should be noted that the period is not defined as the time in which the motion may be made, but is rather the time in which the court may act. Technically, this permits the court's failure to act upon a motion, to preclude relief. (8A Moore's, supra, ¶ 35.02(2), pp. 35-5 and 35-6.)
It is not incumbent upon the trial court to state its reason for denying a motion for reduction of sentence. (Wright, Federal Practice and Procedure, § 586, p. 131 of 1971 pocket part, citing United States v. Ursini, 296 F.Supp. 1152 (D.C.Conn. 1968).)
The clearest instance of illegality in a sentence is where the court imposes a sentence in excess of the
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maximum term authorized under the statute violated.
This Rule was amended in 1978 pursuant to the construction given it by the North Dakota Supreme Court in State v. Rueb, 249 N.W.2d 506 (N.D. 1976). The decision and the amendment require that notice of a motion for correction or reduction of sentence be given to the parties in accordance with Rule 49, whether the court acts on its own motion or a motion filed by a party. If the court grants relief under this Rule, it must give its reasons therefor in writing.
The rule was amended in 1983, effective ______________________, 1983, to track amendments to the federal rule creating two subdivisions and inserting a new sentence in subdivision (b) providing that "changing a sentence from a sentence of incarceration to a grant of probation constitutes a permissible reduction of sentence under this subdivision."
RULE 41, NDRCrimP - Explanatory Note
Judge Burdick MOVED to adopt the Explanatory Note to Rule 41, NDRCrimP, as amended. Judge Kosanda seconded the motion. Motion CARRIED.
EXPLANATORY NOTE
Rule 41 is an adaptation of Rule 41, F.R.Crim.P., as amended to August 1979 and is designed to implement the provisions of Article I, Section 8 [former Section 18] of the North Dakota Constitution and the Fourth Amendment to the United States Constitution, which guarantee, "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized." To implement this constitutional protection, the Supreme Court in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B 834 (1914), declared that an illegal search and seizure barred the use of such evidence in a criminal prosecution. The suppression sanction is imposed in order to discourage abuses of power by law enforcement officials in conducting searches and seizures. (8A Moore's Federal Practice (Cipes, 2d Ed. 1972), Chapter 41 at 41-11, citing Weeks v. United States, supra.)
Subdivision (a) provides that a search warrant be issued by a magistrate, either State or Federal, acting within or for the territorial jurisdiction. The provision which permits a Federal magistrate to issue a
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search warrant is the reciprocal of the Federal Rule, which permits a State magistrate to issue a search warrant pursuant to a Federal matter. It is contemplated that a search warrant will be issued by a Federal magistrate only upon the nonavailability of a State magistrate.
Subdivision (a) does not require that the individual requesting the search warrant be a law enforcement officer. This is consistent with existing law because Chapter 29-29, N.D.C.C., contains no requirement that the individual requesting the search warrant be a law enforcement officer. There appears to be common-law support for the use of the search warrant as a means of getting an owner's property back (See Vern. Ann. Code, Code Crim. Proc., Art. 18.03 (1966) Texas). The primary purpose of the Rule, however, is the authorization of a search in the interest of law enforcement and as a practical matter the request for issuance of a search warrant by someone other than a law enforcement officer is virtually nonexistent.
Subdivisions (a), (b), and (c) were amended in 1983, effect ________________, 1983, to add persons as permissible objects of search warrants. These amendments follow 1979 amendments of Rule 41, F.R.Crim.P., and are intended to make it possible for a search warrant to issue to search for a person if: (i) there is probable cause to arrest that person; or (ii) that person is being unlawfully restrained. See Advisory Committee Note to Rule 41, F.R.CrimP., 1979 Amendment.
Subdivision (b) describes the property or persons which may be seized with a lawfully issued search warrant. The Rule applies the decision of Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), which authorizes the issuance of a search warrant to search for items of solely evidential value. There is no intention to limit the protection of the Fifth Amendment against compulsory self-incrimination, so items which are solely "testimonial" or "communicative" in nature might well be inadmissible on those grounds. (Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). See Advisory Committee Note to Federal Rule 41 (1972), H.D. 92-285, page 43.)
Subdivision (c)(1) follows the Federal Rule except that it permits the issuance of a warrant upon sworn recorded testimony without an affidavit (see Jones v. United States, 352 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233 (1960); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969)). The provision for hearsay requires that the hearsay evidence be established as credible (truthful) and reliable (that the information has a factual basis upon which it is founded).
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The provision for examination of the affiant before the magistrate is intended to assure the magistrate an opportunity to make a careful decision as to whether there is probable cause based upon legally obtained evidence. The requirement that the testimony be recorded by a reporter, if available, and if no reporter is available, then by use of a recording device at the direction of the magistrate, is to insure an adequate basis for determining the sufficiency of the evidentiary grounds for the issuance of the search warrant if a motion to suppress is later filed.
The language of subdivision (c)(1), "for reasonable cause shown," is intended to explain the necessity for executing the warrant at a time other than the daytime. This provision is intended to be a substantive prerequisite to the issuance of a warrant that is to be executed at a time other than daytime, although it is not necessary that the quoted language ("for reasonable cause shown") be defined in subdivision (h) of this Rule.
Subdivision (c)(2) establishes a procedure for the issuance of a search warrant when it is not reasonably practicable for the person obtaining the warrant to present a written affidavit to, or appear before, a magistrate as required by subdivision (c)(1). A warrant may be issued on the basis of an oral statement of a person not in the physical presence of a magistrate. Telephone, radio, or other electronic methods of communication are contemplated.
Subdivision (d) is intended to make clear that a copy of the warrant and an inventory receipt for property taken shall be left at the premises at the time of the lawful search or with the person from whose premises the property is taken if he is present.
Subdivision (e) requires that the motion for return of property be made in the trial court rather than in a preliminary hearing before the magistrate who issued the warrant. It further provides for a return of the property if: (1) the person is entitled to lawful possession, and (2) the seizure is illegal. However, property which is considered contraband does not have to be returned even if seized illegally. The last sentence of subdivision (e) provides that a motion for return of property, made in the trial court, shall be treated as a motion to suppress under Rule 12. The purpose of this provision is to have a series of pretrial motions disposed of in a single appearance (see Rule 17.1, Omnibus Hearing) rather than in a series of pretrial motions made on different dates causing undue delay in administration. (See Advisory Committee Note to Rule 41, H.D. 92-285 (1972), page 45, ¶ 3.)
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RULE 44, NDRCrimP - Explanatory Note
Judge Burdick MOVED to adopt the Explanatory Note to Rule 44, North Dakota Rules of Criminal Procedure. Judge Leclerc seconded the motion. Motion CARRIED.
EXPLANATORY NOTE
Rule 44 is a modification of Rule 44, F.R.Crim.P., governing the appointment of counsel, and implements the holding of the U.S. Supreme Court in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). This Rule would allow appointment of counsel only when so required under the holding of Argersinger, whereas the present Federal Rule requires appointment of counsel for all indigent defendants. It is not the intent of this Rule to impose upon counties the expenses of the defense of indigents in municipal courts.
Rule 44 was amended in 1983, effective _____________________, 1983, to add the words "in the courts of this state" in each of the first two sentences to make it clear that the appointment of counsel for indigent defendants at public expense is required only in proceedings through appeal in the courts of North Dakota.
RULE 30, NDRAppP - Explanatory Note
Judge Burdick MOVED to adopt the Explanatory Note to Rule 30, North Dakota Rules of Appellate Procedure, as amended. Mr. Hill seconded the motion. Motion CARRIED.
EXPLANATORY NOTE
This Rule is derived from Rule 30, F.R.App.P. it adopts the federal system of an appendix to the brief which contains the essential evidence relating to the appeal, and includes the alternative system of deferred filing of the appendix. Eight copies of the appendix must be separately bound with a white cover (see Rule 32).
If the parties cannot agree as to the contents of the appendix, the appellant must serve a statement of the issues he intends to present for review as well as parts of the record he intends to include in the appendix. If a cross-appeal is filed, the appellee must also serve a designation of the issues he intends to present for review. The first paragraph of subdivision (b) was amended in 1983, effective ______________, 1983 to provide that if a transcript has not been ordered, the designation must be served not later than 10 days after the record is filed.
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REPRINTING OF RULES OF COURT MANUAL
It was unanimously decided that the North Dakota Rules of Court manual should be reprinted, with amendments.
CLE CREDIT
Judge Burdick suggested that the Chairman prepare an appropriate application to the designers of the CLE program in North Dakota to amend their rules, if necessary, so as to provide CLE credit for the work of this Committee, and that this application be submitted for signature to all members of the Committee for presentation.
NEXT MEETING
Mr. Meschke MOVED that the Chairman be authorized to schedule a meeting of the Joint Procedure Committee to take final action on all rules amendments for recommendation to the Supreme Court to meet the requirements for republication of the desk copy of the Rules of Court Manual not later than October 1, 1983. Judge Smith seconded the motion.
Judge Burdick MOVED to amend the motion to change the date from October 1 to September 1, 1983. Judge Kosanda seconded the motion. Motion LOST.
The question was on the motion of Mr. Meschke that the Chairman select the date for the next meeting, which motion CARRIED.
RECESS
Judge Burdick MOVED to recess to 9:00 a.m., November 19, 1983. Judge Kosanda seconded the motion. Motion CARRIED.
CALL TO ORDER
The meeting was called to order at 9:00 a.m., November 19, 1983, by Justice Paul M. Sand, Chairman.
ATTENDANCE
Present
Hon. Eugene A. Burdick
Hon. Robert C. Heinley
Hon. Frank J. Kosanda
Hon. Lawrence A. Leclerc
Hon. Kirk Smith
Mr. William A. Hill
Mr. Herbert L. Meschke
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RULE 17, NDRCrimP - Explanatory Note
Judge Burdick MOVED to adopt the Explanatory Note to Rule 17, North Dakota Rules of Criminal Procedure, as amended. Judge Kosanda seconded the motion. Motion CARRIED.
EXPLANATORY NOTE
Rule 17 follows the Federal Rule in substance and controls with respect to all subpoenas in criminal cases issued by the courts of this State. Rule 17 also conforms substantially with Rule 45 of the North Dakota Rules of Civil Procedure with two exceptions: (1) The provision for defendants unable to pay [17(b)] which was added to conform to the Federal Rules, and (2) Place of Service [17(e)].
The Rule is not limited to subpoena for the trial. A subpoena may be issued for a preliminary hearing, in aid of a grand jury investigation, or in a deposition, or for a determination of an issue of fact raised by a pretrial motion. This Rule is also intended to obtain witnesses and documents for use as evidence, although it is not a discovery device.
Subsection (a)(1) follows the Federal Rule except that subpoenas may be issued by the magistrate as well as the clerk of court. The fact that some of the lesser State courts are without the benefit of a clerk necessitates this requirement.
As amended in 1983, effective ____________________, 1983, deleting "(other than a subpoena to secure the attendance of a witness for deposition)" in the first two lines, subsection (a)(2) follows Rule 45(a)(2) of the North Dakota Rules of Civil Procedure and provides that an attorney for a party may issue subpoenas with the same effect as if issued by the clerk or magistrate.
Subdivision (b) follows Federal Rule 17(b). There is no similar provision in the North Dakota Rules of Civil Procedure. Subdivision (b) provides a means by which the defendant unable to pay witnesses' fees and travel costs may have persons subpoenaed. If a subpoena is issued under this Rule, the fees and costs are paid in the same manner as in the case of a witness subpoenaed by the prosecution.
Subdivision (c) follows Rule 17(c), F.R.Crim.P., and is similar to Rule 45(g), N.D.R.Civ.P. Rule 17(c) authorizes issuance of a subpoena duces tecum in a fashion quite similar to Rule 45(b), N.D.R.Civ.P. [Note: The third sentence of Subdivision (c) has no
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counterpart in Rule 45(b).] Rule 17 generally is available to any "party" and this is no less true of 17(c). Thus the prosecution as well as the defendant may use the Rule, subject to the limitations imposed by the Fourth and Fifth Amendments.
Subsection 17(d)(1) follows Rule 17(d), F.R.Crim.P., and also makes reference to Rule 17(b) of the Federal Rules in application to service by defendants unable to pay.
A subpoena will ordinarily be served by a peace officer although Subdivision (d) goes beyond Section 31-03-13, N.D.C.C. (Service of subpoenas--Proof--Peace officers required to make), in permitting service by any person who is not a party and who is 18 or more years of age. Service of a subpoena under the Federal Rule has been held effective only if the fee for one day's attendance and the mileage allowed by law are tendered to the witness when the subpoena is delivered. Fees and mileage need not be tendered if the subpoena is issued in behalf of the State or on behalf of a defendant unable to pay.
Subsections (d)(2) and (d)(3) were adopted from Rule 45(c)(2) and Rule 45(c)(3), N.D.R.Civ.P.
Subdivision (e) is an adaptation of the Colorado Rules of Criminal Procedure. Under Chapter 31-03, N.D.C.C. (Means of Compelling Attendance of Witnesses), North Dakota has adopted a Uniform Act to secure the attendance of witnesses from another State in criminal proceedings. Under Subsection (e)(2) service of subpoenas on witnesses out of state is governed by Chapter 31-03, N.D.C.C.
Subdivision (f) follows its Federal counterpart, with appropriate changes to satisfy the requirements of North Dakota. Subsection (f)(1) provides that a court order for the taking of depositions gives authority to the clerk of court or magistrate to issue subpoenas for the persons named or described therein.
Subsection (f)(2) follows the language of the Preliminary Draft of Proposed Amendments to the Federal Rules [52 F.R.D. 447 (1971)]. It provides the court with discretion in determining where the deposition is to be taken. Similar authority is conferred by Rule 45 (d)(2), N.D.R.Civ.P.
Subdivision (g) follows Rule 17(g), F.R.Crim.P., and Rule 45(f), N.D.R.Civ.P. This provision merely restates existing law.
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Subdivision (h) was adopted in 1983, effective __________________, 1983, to provide that "Statements made by witnesses or prospective witnesses are not subject to subpoena under this Rule but are subject to production in accordance with Rule 16." This subdivision was adopted to correlate with amendments made to Rule 16 relating to production of statements.
RULE 11.5, NDROC
Judge Burdick MOVED to reconsider Rule 11.5, North Dakota Rules of Court. Judge Kosanda seconded the motion. Motion CARRIED.
Judge Burdick MOVED to amend Rule 11.5, NDROC, by striking all the language and inserting:
"The trial court may take any appropriate action against any person failing to perform an act required by the rules or required by court order."
and adding the appropriate Civil Procedure Rules numbers. Judge Kosanda seconded the motion. Motion CARRIED.
SANCTIONS
The trial court may take any appropriate action against any person failing to perform an act required by the rules or required by court order. Appropriate action includes a sanction provided by Rules 5, 11, 16, 25, 30, 37, 40, 45, or 56, NDRCivP.
RULE 41, NDRAppP
Judge Burdick MOVED to adopt proposed draft 2 of Rule 41, NDRAppP. Mr. Hill seconded the motion.
Judge Leclerc MOVED a substitute motion to consider only proposed draft 1 of Rule 41, NDRAppP. Judge Smith seconded the motion. Motion CARRIED.
Mr. Meschke MOVED to table all proposed drafts of Rule 41, NDRAppP. Judge Leclerc seconded the motion. Motion CARRIED.
ADJOURNMENT
Judge Burdick MOVED that the meeting adjourn to the call of the chair. Mr. Hill seconded the motion. Motion CARRIED.
___________________________
Secretary