Joint Procedure Committee Meeting

Scheduled on Thursday, November 7, 1991 @ 10:00 AM

MINUTES OF MEETING

Joint Procedure Committee

November 7 § 8, 1991

CALL TO ORDER

The meeting was called to order at 10:00 a.m., November 7, 1991, by Justice H.F. "Sparky" Gierke, Chairman. (Chair Gierke was present 11/7/91 only)

ATTENDANCE

Present:

Justice Beryl J. Levine
Honorable Wallace D. Berning (11/7/91 only)
Mr. Leonard H. Bucklin (11/8/91 only)
Honorable Gerald G. Glaser
Honorable Ronald L. Hilden
Honorable Lawrence A. Leclerc (11/8/91 only)
Honorable Kirk Smith
Mr. Robert C. Heinley
Mr. John C. Kapsner (11/8/91 only)
Mr. Dwight C.H. Kautzmann
Professor Larry Kraft
Mr. James L. Lamb
Mr. Ronald H. McLean
Mr. James T. Odegard (11/7/91 only)
Mr. David L. Peterson

Absent:

Honorable James H. O'Keefe
Ms. Cathy Howe Schmitz

Staff:

Keithe E. Nelson, Staff Attorney
Ms. DeeDee Ruud, Law Clerk to Justice Gierke

APPROVAL OF MINUTES

Mr. James Lamb MOVED that the minutes of the Joint Procedure Committee meeting of October 25-26, 1990, be approved as submitted. The Honorable Wallace Berning seconded the motion. Motion CARRIED.


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The Committee was polled by staff as to whether they would prefer to meet at 9:00 a.m. or 10:00 a.m. on the first day of the meeting. The Committee members responded that they would prefer a 9:00 a.m. start time.

UNFINISHED BUSINESS

RULE 1.1 NDROC - (Explanatory Note)

A discussion ensued as to what the Committee intended in their October 25-26, 1990 meeting with respect to Rule 1.1. Several members of the Committee indicated that they believed Rule 3.2 was an issue and that a Rule 1.1 correction was not the best way to remedy the Rule 3.2 inconsistencies with other rules. Mr. Kraft expressed the belief that at this stage it would be better for staff to develop a list of the conflicting rules and present them to the Committee for resolution. Mr. Heinley stated that Rule 6(d), 12(c), 56(c), 87(a) and 59(e), NDRCivP Rules covered in the second paragraph on page 5 of the October minutes were identified and what was needed was conflicting criminal rules. After identifying all of the rules, then the inconsistencies could be noted in the explanatory note to the revised 1.1. Chairman Gierke questioned whether it might be best to defer action on this item to the next meeting. Jim odegard suggested the objective of this exercise should be to make as many of the rules consistent as possible. Others on the Committee noted that some District Judges don't follow Rule 3.2 and perhaps what is needed is a consistent application rather than revising the inconsistencies between Rule 3.2 and the other rules.

Chair Gierke summarized where the discussion stood. He noted at the last meeting of the Committee that they voted to pass the scope rule and that was accomplished to everyone's satisfaction. There are two views that have now emerged. The first, is that it would be best at this stage to withdraw the rule that was passed at the last meeting and have staff again study this issue. The second, was to correct Rule 1.1 to make it applicable to all civil and criminal cases not inconsistent with Rule 3.2. The question at this stage is which way the Committee desired to go.

Jim Lamb MOVED to reconsider Rule 1.1. The motion was seconded by the Ron McLean. Motion CARRIED. Mr. Jim Lamb MOVED to amend Rule 1.1 by adding the word all after the underlined word in at the end of line 3 and adding the word casesafter civil on line 4 and the word in after and on line 4


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and to delete the comma after cases on line 4, add a comma after matter on line 5 and substitute the word that in place of the word the, and deleting the comma preceding that on line 5. The corrected sentence now reads ". . . in all civil and in criminal cases unless there is a specific rule addressing the matter in which case that specific rule would govern". These changes all refer to the Proposed Rule 1.1, NDROC as shown on page 24 of the agenda. Mr. Dave Peterson seconded the motion. Motion CARRIED. The chair referred this rule back to staff for additional drafting on the explanatory note. If was further the consensus of the Committee that until the explanatory note was reviewed by them at the next meeting, the revised rule should not be referred to the Supreme Court. Staff was directed to revise the explanatory note and list all the inconsistencies that are in conflict with Rule 3.2.

RULE 2.2 NDROC (Explanatory Note)

A discussion ensued without a motion concerning the need to help clerks by requiring receipt prior to 5:00 p.m. Others believed actual time should be used, even if after business hours. Judge Smith stated that the time reflected on the fax could be used for this purpose. Others mentioned that fraud or deceit is possible but Judge Smith responded that this would not be a problem if the telephone company places the time upon the documents. Mr. Dwight Kautzmann MOVED to accept the explanatory note contained on page 25 of the agenda. Mr. James Lamb seconded the motion. Motion CARRIED.

RULE 5, NDRCivP (Explanatory Note)

Mr. James Lamb MOVED to accept the explanatory note on Rule 5 as shown on page 27 of the agenda. Mr. Dave Peterson seconded the motion. Motion CARRIED.

RULE 6, NDRCivP (Explanatory Note)

Mr. Dave Peterson MOVED to accept the explanatory note for Rule 6 found on page 30 of the agenda. Mr. James Lamb seconded the motion. Judge Kirk Smith questioned why attorney's are protected by the 5:00 p.m. rule but clerks are not included to that same protection. A discussion ensued wherein a Committee member pointed out that often attorneys have to make arguments based on the filings before them at the end of the day. If filings were permitted after 5:00 p.m., attorneys would not know what to argue the following day until they had reviewed their fax


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receipts. The attorney would then be unable to make a prepared legal argument for that hearing. Clerks need no such protection and the times shown on the fax should suffice for filing purposes. The motion was CARRIED.

RULE 35 NDRCivP (Explanatory Note)

Mr. Dave Peterson MOVED to accept the Rule 35 explanatory note contained on page 33 of the agenda. Judge Berning seconded the motion. A discussion followed questioning why a psychologist was added to the rule and whether in fact this rule was consistent with the federal rule as indicated in the explanatory note contained on page 33 of the agenda. After discussion, the chair deferred calling for a vote as it was obvious there was not unanimity or even close to it on the Committee. The chair referred this Rule and the explanatory note back to staff for further study and revision.

RULE 41(e) § RULE 32(c) NDRCrimP

A motion was made by Mr. Ron McLean to separate this note into two separate notes and to change the wording to the following for each rule:

The first one would then read: Rule 41 (e) NDRCrimP was amended effective ________________ to track the federal rule. See Joint Procedure Committee meeting minutes of October 25-26, 1990, pages 15 § 16.

In the case of the second rule the note would read: Rule 32(c) NDRCrimP was amended effective ________________ to track the federal rule. See Joint Procedure Committee meeting minutes of October 25-26, 1990, pages 15 § 16. The motion was seconded by Mr. Dave Peterson. The motion was CARRIED.

RULE 609 NDREv (Explanatory Note)

Judge Glaser announced that this is the same item that he submitted a new business item on which is included on page 119 of the agenda. Judge Smith reported that there is an obvious inconsistency with the federal conference report which used the word must rather than shall. Judge Glaser MOVED to amend the rule on page 46 by leaving the word "must" in place of "shall" on line 10 and on line 14 as written on page 46 of the agenda. This rule should track the Federal rule except for the must/shall difference. The motion was seconded by Mr. Dave Peterson. Professor Kraft stated that it was certainly better to track the federal rule and he wasn't sure that the distinction between must and shall is that significant. It is his


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belief that that distinction is lost with the normal practitioner. The motion was CARRIED.

RULE 40 NDRCivP (Explanatory Note)

Professor Kraft MOVED to revise the note as shown on page 47 of the agenda by substituting the word "revised" in lieu of the word "amended" on the 2nd line. The note would thus read "The note of issue and certificate of readiness form relating to Rule 40, NDRCivP, was reworded effective ______________ to make the form consistent with the rule. See Joint Procedure Committee meeting minutes of October 25-26, 1990, page 16." The motion was seconded by Judge Smith. The motion was CARRIED.

RULE 33(a) NDRCivP (Explanatory Note)

Dwight Kautzmann MOVED to revise the explanatory note contained in page 49 of the agenda by deleting much of it and simplifying the language. The new explanatory note would then read: "Rule 33(a) was amended effective ______________ to require the answering party to restate the interrogatory being answered. SeeJoint Procedure Committee meeting minutes of October 25-26, 1990, pages 17 § 18. The numbers 17 § 18 replace the number 16 on page 49 of the agenda. The motion was seconded by Mr. Jim Odegard. The motion was CARRIED.

SEALING OF COURT RECORDS

Mr. Peterson spoke in opposition to sealing court records. A member of the Committee mentioned the need to seal court records in certain domestic relations settlements. Professor Kraft noted that this is simply another case of domestic relations issues wagging the dog instead of the tail. Mr. James Lamb noted that sealing records fits a need in certain malpractice cases when people and personality issues are involved. Judge Glaser noted that a productive discussion was impossible without the formulation of a rule that the Committee could look at and access. Mr. Dave Peterson MOVED that staff draft a rule for discussion at the next meeting. This motion was seconded by Judge Glaser. Judge Smith noted that sealed records were often used in probate proceedings in that often times individuals want inventory lists for their own purposes, not necessarily legitimate or legal, and this disclosure presents unique problems. One of the Committee members noted that staff also needs to consider areas such as juvenile law and related special needs. Judge Berning noted that 16(d), NDRCrimP, provides for in camera sealing.


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Judge Kirk Smith noted that adoption issues also provide unique points to be considered in sealing court records. Judge Glaser also suggested that all statutory provisions for sealing must be exempt from this rule. He also pointed out that case law must be taken into consideration as well as special requirements in the area of trade secrets. Paternity issues can also be impacted by sealing policies and in some instances, settlements or resolutions of these paternity cases can be accomplished by not forcing disclosure or admission of paternity through the sealing of court records. Motion CARRIED.

RULES 3(d) and 10(b), NDRAppP (Explanatory Note)

Judge Glaser MOVED that Rule 3(d) and 10(b) explanatory note be approved as written. Mr. Jim Odegard seconded the motion. Discussion ensued and the motion was withdrawn. Judge Hilden suggested that court reporters be included into the definition. A discussion ensued on the other places where the issue of insertion of court reporters might also be included. This would include statutes, procedural and administrative rules. The Committee referred the issue of including court reporters in this rule to staff for study and reporting at the next meeting. Mr. Dave Peterson brought up the federal rule of ordering the record within 10 days of filing. He also mentioned that we should look at Federal Rule 10(b) before we do anything more on 3(d) and 10(b). With that thought in mind, perhaps a rule similar to the federal rule would better meet our needs. He then made a motion that staff study the issue and draft a rule similar to the federal rule for consideration at the next meeting. The motion was seconded by Jim Odegard. The motion was CARRIED. Mr. Jim Odegard brought up the issue of the use of the word shall vis-a-vis must and its distinction. A lively discussion ensued. Mr. Dwight Kautzmann brought up that fact that shall does not always mean what people said, for he was once informed by the Supreme Court in argument that shall means may. The chair reserved further discussion on this for a later date.

RULE 11.1 NDROC (Explanatory Note)

Judge Glaser MOVED that the explanatory note as shown on page 61 of the agenda be revised to read as follows: "Rule 11.1 was amended effective ________________ to provide that an associate attorney need not be a North Dakota resident. See Joint Procedure Committee meeting minutes of October 25-26, 1990, page 19. Mr. Dave Peterson seconded the motion. Motion was CARRIED. Mr. Dave Peterson MOVED to reconsider the


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Rule passed in October of 1990 as shown on page 62 of the agenda. His amendment is to change purposed Rule 11.1 to place a period at the end of pleadings on line 9 and delete the words "being filed by the clerk" on line 10 and to substitute the word "must" for "shall" on line 11 and to delete the word "must" on line 12. Line 8 and following would then read as follows: "The name and address of the associate attorney must be shown on all pleadings. The associate attorney must appear personally, and unless excused by the court, remain in attendance with the nonresident attorney in all appearances before the court." This motion was seconded by Judge Ron Hilden. The motion was CARRIED.

JUDICIAL MASTER PROGRAM

Justice Levine was asked as a matter of unfinished business from the last meeting to explain what was meant on page 65 of the agenda by Task 2.1.22 of the Judicial Master Program. This task is quoted as follows: "To encourage use of telephone court proceedings in civil cases." The master plan specified this task to encourage the use of telephones in court proceedings when time or money can be saved. Telephones are one aspect of technology in court proceedings which, if better utilized in the Judicial process, could save both time and money. Several members of the Committee noted that telephone proceedings have been used both in conjunction with court proceedings and in the case of questioning of witnesses or parties in other jurisdictions. Mr. Dwight Kautzmann gave an example of a party to a divorce who was in Paris, France and the telephone was used to put the parties in contact and resolve a particular divorce issue. Judge Smith claimed that he had a similar situation with a party located in Alabama and difficulty in getting the Alabama Courts to resolve jurisdictional issues and that a telephone conference solved the problems. The Committee jointly expressed a view that this task is a good one to encourage but questioned whether it should be mandated. A consensus developed that the use of telephone is efficient and should be encouraged for pretrial conferences in all but the most complex cases. Telephone use should also be encouraged for selected conferences. There was a concern that to push the use of the telephones for trials when the parties can't see the body language and facial expressions of the parties could lead to problems, due to the lack of personal observation of witnesses, etc. Judge Glaser quickly pointed out that that is not a particularly valid argument because you don't see the parties in depositions and depositions are regularly used. Mr. Dave Peterson said that he has


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heard of a federal case in the 8th Circuit on appeal where the telephone was used. That case is to be resolved by the 8th Circuit. Judge Glaser stated that perhaps it would be best to approve this concept but note that it should be used only with the approval of the parties and the court. Judge Hilden noted a case that came to his attention where a telephone was used for a search warrant and in accordance with North Dakota law, the telephone conversation was recorded. It was later discovered that the tape recorder was inoperative and great difficulties were experienced reconstructing a record. It was MOVED by Mr. David Peterson and seconded by Mr. Jim Odegard that staff should draft a rule for phone procedures in Rule 16 and Rule 40. Motion was carried. Staff was also directed to include pretrial scheduling conferences and motion practice in the rule as it is developed. The Committee further directed staff to explore how scheduling conferences are used in the federal system and look at the possibility of doing away with certificates of readiness by instead encouraging case management through a tracking system or a change of rules because the certificates of readiness can interfere with the fast track situation and it can then lead to a risk of saying things that are not true. The members of the Committee argued that this, in turn, could encourage deception by certain practitioners.

TASK 2.1.18 JUDICIAL MASTER PROGRAM

This item was also carried over from the October, 1990 meeting of the Committee and deals with the development of uniform forms for temporary support and protection orders in the domestic relations cases. The background for this task was provided by Justice Levine. Judge Kirk Smith stated that he has a form for adult protection orders which he would be happy to share. A Committee member mentioned that the financial form at Appendix A was such a form. After further discussion, this item was closed without referral.

ORIGINAL JURISDICTION

This item which is reflected on page 66 of the agenda was deferred without further action.

DEMAND FOR CHANGE OF JUDGE

Judge Glaser in a letter to staff proposed superseding Section 29-15-21, N.D.C.C., by a rule. This issue was carried over from the October, 1990 meeting. There was a clear consensus among Committee


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members that this is a problem within the Judiciary and that it is illogical that it should be allowed in domestic relations cases only. If it is justified in domestic relations cases, then it should be in all cases. If it is not to be in all cases, then it should not only be in domestic relations cases. The practical problem is that it is a statute that was apparently generated from an actual or perceived problem in a domestic relations case and as a result there is little chance of change by the legislature. A Committee member suggested that perhaps we could fix the problem with a procedural rule that could supersede the statute. The question then arose whether this is a procedural or substantive matter. If procedural, it was believed by several that the simple answer is to draft a rule to resolve the problem. Mr. James Lamb reviewed the history of the old affidavit of prejudice rule and how that led to the change for a one bump rule which has been considered as substantive. Based on that history, he concluded that what we are discussing is a substantive rather than a procedural rule and that the change suggested would not work. Judge Kirk Smith MOVED that staff research Supreme Court cases and old cases as to whether this is a procedural or substantive issue. Motion was seconded by Judge Glaser. Motion carried.

PEREMPTORY CHALLENGES

Staff was directed to research the issues raised by Judge Glaser in his letter on page 73 of the agenda. Staff was also directed to include in their study the number of peremptory challenges that other states have and to include any substantive law that would be of value to the Committee in resolving this issue.

CONTEMPT

Judge Glaser asked why this is back from the Supreme Court. Justice Levine responded that the Supreme Court returned it because staff had not incorporated case law into the proposal. The Supreme Court's concern was that in fixing this issue that they could end up interfering with established case law or create an unworkable model in North Dakota. Judge Gierke appointed a Committee to study the issue and to include in their recommendation the background on two important North Dakota cases it could well impact on this case. The Committee was appointed as follows: Judge Gerald Glaser, Chair; Judge Kirk Smith; Mr. Ron McLean, Mr. Dwight Kautzmann and Justice Levine. Mr. David Peterson then MOVED to direct the committee to also review and report what


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other states do and how they address contempt issues. The motion was seconded by Mr. Jim Odegard, Motion carried.

NEW BUSINESS

INDEXING OF AUDIOVISUAL DEPOSITIONS

The Committee considered the request of Mr. Gene P. Johnson on page 104 of the agenda in his October 10, 1991 letter to the clerk of court requesting the indexing of the time generator or whether there is another method specified by the Supreme Court. The Committee instructed staff to respond that there is no other method at this time, nor is any contemplated.

RULE 16(a) NDRCivP

Mr. Dave Peterson requested that this item be held off until tomorrow so that Judge Leclerc could speak on this subject. It was agreed.

AMENDMENTS TO AR 2 AND AR 5

Judge Glaser spoke to his letter of request to amend these two administrative rules in furtherance of his letter of request contained in page 107 of the agenda. He expressed a concern with the assignment of judges. It was mentioned that assignments were not always first made from among the judges of the judicial district. Judge Glaser thereafter MOVED that the underlined material containing the words "the assignment shall be made from among the district judges of the judicial district, whenever possible" as found on page 107 of the agenda be added to Rule 2(8) and the words "from among the judges within the judicial district, whenever possible" be added to Rule 2(9) and that further Administrative Rule 5(IV)(f)(13) be amended to add the words "subject to the limitations set forth in Administrative Rule 2". The motion was seconded by Judge Smith. Motion CARRIED.

LEGISLATION REGARDING ADMINISTRATIVE APPEALS HEARINGS BY THE DISTRICT COURT.

Judge Glaser expanded on his letter of November 21, 1990, concerning this problem as contained on page 110 of the agenda. He explained that on administrative appeals, if the district court fails to affirm the decision of the agency, any aggrieved party can appeal to the Supreme Court as a matter of right. On the other hand, if the district court affirms the decision of the agency, there will


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be no further appeal in the matter. This unfortunate situation leads the judges of the district court to believe that they are no more than a spring board to the Supreme Court. He said there are several legislative alternatives that could correct this: 1) to have a one appeal only rule; 2) to require that the appeal terminates at the district court or; 3) that appeals from district court be limited to certiorari so that there is selectivity in the cases the Supreme Court hears. Another member of the Committee suggested that perhaps staff should check the Constitution as it affects the statutory right to appeal.

The Chair announced that in view of the hour, which was near the agreed adjournment time, that this item would be postponed for further discussion until tomorrow. Prior to adjourning the meeting, Justice Gierke said that he believed that it was quite possible that this was the last time that he would be working with the Committee. He expressed his appreciation for the Committee's work and their support through the years. Judge Gierke's words were received by the Committee with a standing round of applause in his honor. The meeting was adjourned at 4:30 p.m.

NOVEMBER 7, 1991, FRIDAY

Justice Levine reconvened the Committee at 9:00 a.m. Joining the Committee at this time was John Kapsner, Leonard Bucklin and Judge Larry Leclerc, all of whom had commitments yesterday and were unable to attend. Absent from yesterdays session is Justice Gierke, Judge Berning and Jim Odegard.

RULE 46(a)(1)(i) NDRCrimP

Ron McLean MOVED that we add the words "assure" after "and" and "or" in place of "and" on line 14 of the draft on page 118 of the agenda. The sentence would then read as follows: . . . and assure the safety of any other person or the community. Also, that the word shall as underlined on line 19 be added. Further, that the reason given in the explanatory note be to track the federal statute. The motion was seconded by Judge Smith. Dwight Kautzmann brought up the question of whether the issue of protection of self should also be addressed. He cited a dilemma he once faced with a drug user who overdosed. Dwight Kautzmann was concerned that if the individual were released that he would again overdose. The Committee discussed this and other implications arising from this new situation and after further discussion, the motion was called and the


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motion made by Ron McLean and seconded by Judge Smith was CARRIED. Mr. David Peterson voted no and stated his belief that if we are going to do this there should be a mandatory hearing. Ron McLean made a motion to reconsider the motion that was previously passed and seconded by Judge Smith. The motion was CARRIED. A new motion was made by Ron McLean and seconded by Judge Smith. It was MOVED to direct staff to rewrite this rule incorporating "or that release will endanger" and "or" and to clean up the grammar and eliminate the 11th line sentence and generally clean up the grammar. The motion was CARRIED.

RULE 16(A) NDRCivP

This rule was carried forward from yesterday in order to give Judge Leclerc an opportunity to speak.

Judge Leclerc vocalized his request to review the word shall in Rule 16(a). His request is to substitute a word, such as may, which would give an option to judges. Thus precluding the abuse of one attorney in divorce cases in his jurisdiction. Mr. Jim Lamb voiced his belief that the rule is good for all cases except for divorce. Since it is good for all cases except divorce, he did not believe that it would be proper to change the rule for only one attorney and in only one category of cases. Professor Kraft stated that this is another case of divorce cases wagging the dog. Judge Leclerc expressed the view that the problem is often that one attorney demands it solely to drive up costs for the other side. If opposition doesn't have the funds to cover the costs they are then put in a hardship situation. The net result is that one party can drive up the cost often in excess of what the other party can afford. Mr. Dave Peterson reminded the Committee that the word "shall" is not in the federal rule and this Committee drafted it with the word shall for good and valid reasons. Judge Leclerc MOVED to change the word from shall to may. The motion was seconded by John Kapsner. The motion was defeated.

RULE 609(c) NDREv

Justice Levine summarized the letter from Judge Hodny contained on page 120 of the agenda. North Dakota's certificate of rehabilitation wipes the deferred imposition cases from the record. The federal system does not have certificates of rehabilitation for use in deferred imposition cases. This can present a conflict of laws issue where a witness is from a state or the federal system where certificates of rehabilitation are not used or recognized. The question then becomes what rule do we


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apply. In closing Justice Levine stated that she recalls a Supreme Court case on this issue which she couldn't remember at the moment but believes it would be important before a final decision is made to review that case.

Several Committee members spoke in favor of the rule we have in North Dakota which they described as a good rule. It was the Committee's consensus that the feds have a shortcoming in their procedures and rules. The Chair ruled after discussion that staff be directed to write Judge Hodny thanking him for his input and inform him that the Committee considered his request but because it is so rare, the Committee deferred a decision. The problem is with the Federal system which we can't fix and North Dakota has a good rule that no one desires to change.

COURT DELAY REDUCTION

The Committee read the article referred to the Committee by the court concerning Humboldt's simple and effective formula for delay reduction contained in pages 123-125 of the agenda. No action was appropriate or taken.

FRAP 47, 8th Cir.R. 47A

This item concerns Chief Justice Erickstad's question to the Committee whether North Dakota should consider a rule similar to the Federal Rule 47A of the 8th circuit. This concern came about as a result of a Supreme Court case Olson v. Brakke, et al. After discussion, it was MOVED by Mr. Dave Peterson that action on this rule be deferred at this meeting and carried over to the next meeting. John Kapsner seconded the motion. Motion CARRIED. The staff was instructed to obtain a copy of Olson v. Brakke, et al. and to provide a draft change to the North Dakota rules providing power to dismiss if a case is frivolous. This draft is to be completed for consideration at the next meeting of the Committee.

ORAL ARGUMENT

This item arose as a result of a pro se party who after many delays contended that illness would require another delay. The Supreme Court drew the line and said enough is enough. The party appeared and the court observed a very ill person who was forced to go through with the hearing. Some Supreme Court Judges wondered if we should have a rule to cover such a situation. The Committee instructed staff to contact Justice VandeWalle for further


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details on this issue and to propose a draft rule for the next meeting of the Committee.

CONFLICTS BETWEEN SUPREME COURT RULES AND LEGISLATIVE STATUTES

This problem is outlined in footnote 4 of the opinion reproduced on page 136 and 137. The problem is the words in statutes such as "except as otherwise provided by statute". The easy answer to this problem is to delete these words. However, in many cases, there is no rule other than that provided in the statute. Thus, for the interpretation of some rules these words are absolutely necessary. It was historically noted that prior to the 1976 Constitutional Amendments, procedural rules enacted by the legislature prevailed over procedural rules issued by the Supreme Court. Since 1976, the court has had the power to make procedural rules. (One of the Committee members questioned whether we should delete the magic words "except as otherwise provided"). Judge Glaser pointed out that there are cases where we have no rule and because we have no rule we depend on the statute for guidance. Judge Glaser then MOVED to delete the words "by statute and" from Rule 1 NDRCrimP leaving only "except as otherwise provided". Also he MOVED to include in Rule 54 an explanatory note that this change was made to correct the conflict and not intended to delete any procedural rules in statutes that are not covered by court rules. This explanatory note should also be in both Criminal and Civil Rules 1. The motion was seconded by Bob Heinley. The motion was CARRIED. Judge Leclerc then MOVED to refer to staff a change to Rule 54 to do away with the application because it is covered in Rule 1 and find the exceptions. He also added that if we veer from the federal rules then this should be changed in the explanatory note explaining the exception. The motion was seconded by Judge Glaser. The motion was CARRIED.

CLASS ACTIONS

The Committee next considered the request by Mr. Fischer of Des Moines, Iowa who wrote two letters to the court requesting revisions to Section 6, NDRCivP 23(f). The Committee reviewed the request and the proposed drafts. It was MOVED by Professor Kraft that this draft and the entire issue be referred to staff with directions to study the proposed change on page 144 and make recommendations to the Committee. The motion further stated that, where possible, we track the uniform rule. The motion was seconded by Mr. Dave Peterson. Motion CARRIED.


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ELECTRONIC COURT RECORDING AND TRANSCRIPT PREPARATION

The Committee reviewed the matters concerning electronic court recording and transcript preparation referred to the Committee on page 180 and following. Mr. Keithe Nelson explained to the Committee that the issue of court recorder duties has been referred to the District Court Personnel Committee. He recommended that the Committee not take action on this issue until the personnel committee has had a chance to evaluate and report as it could affect court recorder duties. A discussion ensued on evolving technologies including computer assisted transcription tape recorders, 8 track vs. 4 track systems, their shortcomings, what we do when systems fail, the value and future of court reporters. No agreement was reached within the Committee as to the best way to proceed, but all acknowledged that it is imperative that the Committee stay abreast of technological advances and that a briefing be set up at some future meeting to give an overview of what is available in the market place. Professor Larry Kraft advised the Committee that in looking at the various technologies available that they not limit their search to that which is only marketed to the court community. He pointed out that there are several applications of existing software that could be easily revised more economically than the standard IBM and DOS format. These could be easily used by court reporters or other technical or even nontechnical people in the court room. Another Committee member mentioned that we have a problem with the definition of the terms. Electronic could mean as little as a $15 hand held recorder or on the opposite extreme an 8 track system or for that matter an entire computerized system. Obviously the latter is more desirable but there is no definition of terms as to what we require. Mr. Jim Lamb stated that if we study this issue, we should study amending 30.1 rather than 30 as the Committee recommended. Mr. Bucklin MOVED that staff prepare a change to 30.1 to provide for both audiovisual and electronic recording for use in depositions. The motion directed staff to prepare this change for the next meeting. The motion was seconded by Judge Smith. The motion was CARRIED.

LITIGATION INVOLVING ADMINISTRATIVE APPEALS

The Committee referred to a postponed item from yesterday concerning administrative appeals. References to this topic can be found on page 110 of the agenda. The Committee decided that since this issue would involve a recommended change to a statute, that it should be referred to staff with instructions to survey other states and list their appeal


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procedures. This information is to be reported back to the Committee. A draft change to the statute should also be provided to the Committee.

FUTURE MEETINGS

Chair Justice Levine set the following meeting dates: February 13-14, 1992; May 7-8, 1992; September 24-25, 1992; December 3-4, 1992. Judge Leclerc suggested that the December meeting be held in Fargo, ND. Several members of the Committee voiced approval to that suggestion. No action was taken on this suggestion.

STAFF SUPPORT

Judge Leclerc noted that the Committee needs permanent staff support and suggested that a contract be undertaken with UND for Committee staff support. Mr. Jim Lamb suggested that if we are to go this route that UND should be asked to submit a proposal as to what can be done in the way of staff support for $20,000 a year, a second option for $25,000 a year and a third option for $30,000 a year. Professor Larry Kraft indicated that such an arrangement could be made but that it would cost. He stated that he would put together three proposals after consultation with Dean Davis and others at UND Law School as to what they could offer for each of those figures. Chair Justice Levine adjourned the meeting at 12:30 p.m.

Keithe E. Nelson
Staff Attorney