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Joint Procedure Committee Meeting

Scheduled on Thursday, December 3, 1987 @ 9:00 AM


Joint Procedure Committee

December 3, 1987


The meeting was called to order at 9:00 a.m., December 3, 1987, by Justice H. F. "Sparky" Gierke, Chairman.



Hon. Gerald Glaser
Hon. Ronald Hilden
Hon. Frank Kosanda
Hon. Lawrence Leclerc
Hon. Beryl Levine
Hon. James O'Keefe
Hon. Kirk Smith
Mr. Robert Heinley
Mr. Dwight Kautzmann
Professor Larry Kraft
Mr. LeRoy Loder
Mr. Ronald McLean
Mr. David Peterson
Ms. Cathy Howe Schmitz


Hon. Wallace Berning
Hon. Eugene Burdick
Mr. Arne Boyum, Jr.
Mr. Leonard Bucklin
Mr. James Lamb


DeNae Kautzmann, Staff Attorney


Judge Kosanda MOVED that the Minutes of the Joint Procedure Committee meeting of May 21-22, 1987, be approved as submitted. Judge Leclerc seconded the motion. Motion CARRIED.


Attorney Lawrence Klemin wrote to the Committee regarding a problem he has been experiencing


with Rule 4(e)(2)(A), NDRCivP. This subsection requires that the return of the sheriff must state that he is unable to make personal service upon the defendant in this state. Mr. Klemin indicated that the problem he has encountered is that the sheriffs are reluctant to include the "in this state" language in their returns when they are unable to make service because as they contend their jurisdiction is limited to their particular county. However, certain district judges in the South Central Judicial District are taking the position that the court will not have jurisdiction unless the "in this state" language is included in the return of the sheriff.

The Committee had discussed the proposed amendment to Rule 4(e)(2)(A) which would delete the "in this state" language. However, staff was requested to provide a copy of Section 28-0620 of the North Dakota Revised Code of 1943 and to research caselaw concerning this subsection. Staff did not find any cases which discussed or mandated the inclusion of the "in this state" language. Ms. Schmitz MOVED to approve the proposed amendment to Rule 4(e) (2) (A), NDRCivP. Mr. Peterson seconded the motion.

Discussion was held concerning whether the language should be deleted from the rule. Judge Leclerc indicated that it appeared that the intent of the original statute was to attest that service could not be made within the state and that a sheriff was not constrained by the boundaries of the county in which he was elected. Mr. Peterson pointed out that today's sheriff does not want to sign the affidavit because they do not drive around the state trying to find the defendant for the purpose of serving the summons. He believes that the sheriff should be left out of the rule.

Judge Glaser pointed out that he felt that the problem with the proposed rule was with changing the word "he" to "the sheriff". Mr. Peterson suggested amending lines 19-21 on page 27 of the meeting materials to read that the affidavit must be accompanied by the return of a process server after a diligent inquiry and that the word "county" be deleted. The Committee then inquired as to what the Minnesota rule on service provided. Mr. McLean reported that the rule only requires an affidavit from the attorney. Mr. Loder suggested that the rule be redrafted to follow the Minnesota rule.

Cathy Schmitz amended her motion with the approval of David Peterson to insert a period after


the word "affiant" on line 19, page 27 of the meeting materials, to delete the remaining portion of line 19, to delete lines 20-26 and to approve the rule as amended. Discussion on the motion included comments regarding this requirement being necessary for quiet title actions. However, it was pointed out that we would still have an affidavit from the attorney. Judge Glaser pointed out that the sheriff's return indicates that he had made a diligent inquiry for the purpose of serving the summons; whereas the attorney's affidavit does not have such requirement unless it is to be inferred from the rule that the attorney is supposed to diligently search for the defendant. Motion CARRIED.

Rule 4(e)(2)(A), NDRCivP

(e) Service by Publication. * * *

(2) Filing of Complaint and Affidavit for Service by Publication. Before service of the summons by publication is authorized in any case, there must be filed with the clerk of the court in which the action is commenced a complaint setting forth a claim in favor of the plaintiff and against the defendant based on one or more of the situations specified in paragraph (1) of this subdivision and an affidavit executed by the plaintiff or his plaintiff's attorney stating, as may be applicable, one or more of the following:

(A) That personal service of the summons cannot be made upon the defendant in this state to the best knowledge, information, and belief of the affiant, in which case the affidavit must be accompanied by the return of the sheriff of the county in which the action is brought stating that after diligent inquiry for the purpose of serving the summons he the sheriff is unable to make personal service thereof upon the defendant in this state;


Mr. Loder MOVED to amend the explanatory note on line 101, page 32 of the meeting materials to place a period after the word "return", to delete the rest of line 101, to delete lines 102-104, on line 100 to delete the word "that" and insert the word "of" and


to delete the word "the" and insert the word "a" and to approve the explanatory note as amended. _______________ seconded the motion. Motion CARRIED.

Rule 4, NDRCivP, Explanatory Note

* * *

Subdivision (e)(2)(A) was amended, effective ______________ , to delete the requirement of a sheriff's return.


Staff was requested to amend Rule 3.2 and Rule 6 to lengthen the time frame since filing three days before a hearing is too cumbersome. Mr. Peterson indicated that under the rule if a person asks for a hearing it appears that they can file a brief under very short notice, i.e., the day before the hearing or the day of the hearing. Mr. Heinley pointed out that often times briefs are slid across counsel table at the time of the hearing. The Committee questioned whether this was in fact allowed by the rule. Judge Glaser indicated that we must make a distinction in the rule as to when the notices of motion and supporting papers are to be filed with the court and when they are to be served on opposing counsel. He believes that we need to distinguish between the time the judge gets the papers and when the attorney gets the papers. Judge Smith indicated that if we increase the time frame then the problem of vacating is in favor of the person that is moved against. There needs to be some other sanction against the respondent. Vacation really is not the answer.

Mr. Kautzmann inquired as to whether a 3.2 brief is necessary when you have a hearing. Judge Glaser indicated that a brief is required under 3.2. All motions are 3.2 motions. The problem with the practitioners is that many of them do not understand that the rule does in fact require this. The brief is to be filed with the motion. Judge Glaser suggested the following language in subsection (c) in order to clear up the confusion. The proposed language is as follows: "Unless otherwise ordered by the court, upon serving and filing a motion, the moving party shall serve and file a brief . . ." Mr. Peterson indicated that perhaps Judge Glaser's amendment to subsection (c) could be accompanied by an amendment in subsection (a) on line 4, page 41 of the meeting materials that a period be inserted after the word "clerk", that the rest of line 4 be deleted and that


lines 5-9 be deleted. Mr. McLean suggested that subsection (d) of the rule be amended by overstriking "or to request the taking of testimony or oral argument". At this point, Professor Kraft indicated that a real need exists to redraft the entire rule. He also pointed out that the title of Rule 3.2 is improper and suggested that it be entitled "Motions".

Mr. Loder MOVED that staff redraft Rule 3.2 in its entirety and that members of the Committee mail any suggested amendments to staff for consideration. Judge Kosanda seconded the motion. Motion CARRIED.

Judge Glaser pointed out that there is a problem with other rules that use the term "hearing", i.e., Rule 56, NDRCivP and Rule 6, NDRCivP. In the explanatory note to Rule 3.2, it is stated: "Subdivision (c) was amended effective March 1, 1986, to clarify that unless the parties request the taking of testimony or oral argument a motion is deemed heard when it is submitted on brief or the time for filing a brief expires." The amendment is intended to reconcile subdivision (c) with other rules of procedure which mention or imply a hearing. The question presented to the Committee members is whether (1) this is being followed in other rules of procedure and (2) whether the amendment has in fact taken care of the problem relating to what a hearing under other rules of procedure means. Judge Smith felt that Rule 3.2 applies if it does not conflict with other rules that require a hearing, i.e., habeas corpus. Rule 3.2 must yield to specific requirements under a rule, i.e., Rule 56.


The amendment to Rule 54(e), NDRCivP, incorporates the provisions of Section 28-26-02 and 28-26-06 of the North Dakota Century Code and Rule 54(e) into one rule. Mr. Peterson indicated that the meat of the rule begins on line 34, page 46 of the meeting materials. He suggested that Section 1 of proposed Rule 54(e) be deleted. Judge Glaser questioned whether we can usurp the Legislature in setting the fees. Would the fees be viewed as substantive or procedural? The problem in dealing with expert witnesses is the cost of the experts and the number of experts that are used. Judge Leclerc indicated that when the Supreme Court adopted Rules 702, 703, and 704 of the Rules of Evidence we changed our system to a trial by experts, not advocacy.


Mr. Peterson stated that perhaps we cannot draft a rule in order to have uniform fees. Judge Smith suggested that perhaps the problem lies with the experts who are trying to supplement their income. Mr. Peterson did not agree with that conclusion and indicated that the problem is actually with scheduling. Mr. McLean indicated that he pays more for many of his experts than what he himself charges a client. He does not know if judges realize how high the cost of this litigation is. Justice Levine stated that judges have to be able to use their discretion, i.e., if one expert was sufficient rather than five. Judge Glaser stated that often times a party will bring in the person who wrote the book as the expert. He stated that if you want the "cadillac" when the "chevrolet" will do then the parties should be expected to pay the extra.

It appears the question is whether expert witness fees should be based on actual expenses or if the witness fees should be paid if they are reasonable. If we accept the reasonable theory then we need guidelines. How much does an expert witness make in a day at their place of employment? Do they make $8,000.00 a day? It's hard to tell whether the charges of the expert witness are in fact reasonable or if they're off the wall. Judge O'Keefe indicated that it would make his job a lot easier if the rule contained a formula to apply for payment of expert witness fees.

Judge Leclerc MOVED to defer action on Rule 54(e) and to recommend to the chairman of the Judicial Conference that this topic be placed on the agenda for proposals to deal with this matter. Judge Kosanda seconded the motion. Motion CARRIED. The next Judicial Conference meeting will be in June of 1988.


Justice Gierke introduced Tara Muhlhauser to the Committee. Tara served on the Provider Services Subcommittee of the Governor's Commission on Victims and Witnesses of Crime. At the February and May meetings 1987, a special hearsay exception for minor victims of sexual offenses was discussed by the Committee. In February, staff was requested to review all caselaw concerning this issue and to invite the Provider Services Subcommittee to the May meeting so that they could provide input to the Committee. At the May meeting, counsel was requested to get a copy of the current Rule 807 of the Uniform Rules of


Evidence as amended by the National Conference of Commissioners on Uniform State Laws.

Judge Smith indicated that he hesitates to put in a new exception to the hearsay rule without any experience in handling this sort of procedure under Rule 803(24), NDREv. He stated that a new rule may not be necessary in that the catch-all provision of Rule 803 may be used by minor victims. He suggested that we continue using the catch-all rule and let it go to the Supreme Court of North Dakota for final resolution. He believes that we need to develop an experience before we take action on this. Judge Leclerc indicated that the Rule 807 proposal is more restrictive than Rule 803(24), NDREv.

Justice Levine again gave the Committee a run-down as to the history behind the hearsay exception proposal. The Governor's Commission on Victims and Witnesses of Crime saw a need for this exception and they referred this issue to the Joint Procedure Committee for action. If the Committee does not take action, this matter may be addressed legislatively in 1989.

Mr. McLean indicated that he felt that Rule 803(24), NDREv, is too uncertain and too arbitrary in practice. He believes that Rule 807 should be adopted and that the Committee give deference to the Governor's Commission on Victims and Witnesses of Crime. Judge Leclerc argued that Rule 807 doesn't allow anything more than what Rule 803(24) provides. Judge Smith indicated that he gives great deference to the Governor's Commission on Victims and Witnesses of Crime. However, he does not take their report or their referral of this matter to the Joint Procedure Committee as a mandate. He would like to see what other studies show concerning whether minor victims of sexual offenses are more traumatized than other witnesses and to see if the perceptions of the Governor's Commission and Subcommittees are accurate.

Tara Muhlhauser spoke to the Committee and indicated that there is very little research on this topic. There are many studies after a child victim testifies but not before. Elizabeth Loftus has done some studies but there is no empirical study available. There is no absolute answer that children are more traumatized than adult witnesses.

Mr. Kautzmann stated that in California and Minnesota the procedural safeguards didn't help in a couple of child abuse cases. Mr. Kautzmann pointed


out that the trial would end up to a battle of experts. He does not like the fact that the child is isolated and it appears that this hearsay exception is a prosecutor's rule. Judge Glaser asked why Rule 807 is limited to children. What about having it apply to all witnesses?

Mr. McLean indicated that there are no experts here to answer whether the child is traumatized or whether the child is telling the truth. However, hearsay statements of child victims or witnesses are being allowed via Rule 803(24), NDREv, so why not go with a special rule addressing that very issue. Mr. Kautzmann indicated that the hearsay rule now handles this particular issue. He has no problem with Rule 807 but good defense counsel will drag the case on and on and will make problems for the trial judge concerning this. The hearsay rule now can handle this issue and the trial judge will protect both sides. We are talking about a crime of violence when this rule comes into play and the defendant would be looking at doing heavy duty time. Is it right to be talking about this or allowing this at the jeopardy of the defendant simply because there is a strong likelihood that the child might be traumatized?

The Committee questioned what the purpose of the rule or the intent of the rule would be. Mr. McLean pointed out that the point is that the catch-all provision of Rule 803 is currently being used so he sees no problem in adopting a special hearsay rule.


The meeting was recessed until 1:00 p.m., December 3, 1987.


The meeting was called to order at 1:05 p.m., December 3, 1987, by Justice H. F. "Sparky" Gierke, Chairman. The attendance remained the same as in the morning session.


Tara Muhlhauser again addressed the Committee and indicated that this issue arose from an advocacy standpoint. The Bench and Bar and the Mental


Health Association were concerned about this issue and not just prosecutors. She pointed out also that this has been a national movement. Mr. Peterson questioned whether any child who testifies would be less traumatized than a child who is a victim of a sexual offense. Ms. Schmitz MOVED to table this issue. Judge Hilden seconded the motion.

Judge O'Keefe suggested that the Committee express whether they have an interest in adopting a rule similar to Rule 807. Justice Gierke took a hand vote. It was 7-7. Justice Gierke broke the tie and voted yes. Therefore the Committee will continue to work on adopting a rule similar to Rule 807. Ms. Schmitz withdrew her motion. Mr. Kautzmann MOVED that proposed Rule 807 not be approved. Judge Hilden seconded the motion. Motion CARRIED. Judge Kosanda MOVED to draft a rule which would track the Utah hearsay exception for child victims or witnesses and to include it as a subsection to Rule 803, NDREv. Judge Leclerc seconded the motion. Motion CARRIED.


The big question concerning videotaped depositions of alleged victims of a sexual offense under the age of 18 years is the defendant's right to confrontation. Judge Leclerc pointed out that under the proposed rule the trial judge would have to preside at the videotaped deposition. He was not in favor of that provision. He also pointed out that he believes that videotaped depositions can currently be done under our current rule. Staff pointed out that the proposed rule has similar provisions to the rule in Utah and Wisconsin and both of those rules require the trial judges present. Judge Leclerc believes that the rules do not prohibit videotaped depositions now. He does not think that this rule is practical or necessary. He also disagrees with subsection (5) where as the burden is on the court to assure that certain things are done rather than on the prosecutor.

Mr. McLean indicated that he felt that the rule appeared to be reasonable. Mr. Loder inquired as to where the proposed rule came from. It was explained by staff that this rule was drafted by the Subcommittee on Court Services to Victims and Witnesses of Crime which was a part of the Governor's commission on Victims and Witnesses of Crime. This was the rule that was approved by that Subcommittee and the Governor's Commission. The rule was


recommended to be sent to the Joint Procedure Committee for consideration.

Judge Smith indicated that perhaps the trial judge's presence may help to control the videotape deposition situation. This system answers some of the questions that the Committee had in regard to the proposed Rule 807 on hearsay. Although, he pointed out that while all the players are present at the deposition the jury is not present and the jury may not buy the use of this procedure and that is something that the proponents of this rule must think about.

The Committee also discussed whether the media could be present at a videotaped deposition. The Committee then discussed the proposed Cameras in the Courtroom rule.

Judge Leclerc indicated that he believes that this issue could be incorporated into Rule 15, NDRCRimP.

Mr. Kautzmann asked how this procedure would work in a preliminary hearing since there are no rules of evidence in operation at the preliminary hearing. He also pointed out that defense counsel has the right to question the victim for purposes of discovery. Another question is what would stop defense counsel from calling the victim for purposes of rebuttal. Subsection 3 of the rule does not indicate that the victim cannot be called later to testify. Judge Glaser pointed out that the language in subsection 3 regarding the direct testimony of the victim is vague. What does the term "direct" mean? It was suggested that the language be amended. The State of Utah in its rule provides that if the videotaped deposition is received by the trial court then the witness cannot be called to testify.

Judge Leclerc MOVED to discontinue consideration of a rule allowing videotaped depositions. Ms. Schmitz seconded the motion. The discussion of the motion revealed that most Committee members were not in favor of the proposed rule allowing videotaped depositions of alleged victims of a sexual offense but were not in favor in dropping the general idea of allowing videotaped depositions. Judge Leclerc amended his motion with the consent of the second whereby staff is directed to design a short additional exception to Rule 15, NDRCrimP, to allow depositions of persons under 18 years of age for use at trial. Motion CARRIED.



Schmitz MOVED to approve all the proposed gender neutral amendments to the North Dakota Civil Rules of Procedure to track the Federal amendments. Justice Levine seconded the motion. Motion CARRIED. Amendments were made to Rules 4, 5, 6, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 24, 25, 26, 27, 28, 30, 31, 32, 34, 35, 36, 37, 38, 41, 44, 46, 49, 50, 53, 54, 55, 56, 60, 63, 69, 71, and 77, NDRCivP. Judge Smith inquired as to the spelling of requestor on pages 133 and 134 of the meeting materials.


At the May meeting, the Joint Procedure Committee received a copy of the proposed administrative rule drafted by the Future Appellate Court Services Study Subcommittee of the Court Services Administration Committee for the Temporary Court of Appeals. In reviewing the proposed rule, the Joint Procedure Committee recommended several amendments. Staff reviewed those amendments with the Committee and discussed what recommendations were accepted by the Supreme Court for Administrative Rule 27 which addresses the Court of Appeals.



Mr. Bucklin wrote to Chief Justice Erickstad concerning a suggested name change for the Joint Procedure Committee. Originally, there was a procedure committee appointed by the judicial council and there was a procedure committee appointed by the State Bar Association of North Dakota. The first year or two that they were merged in their meetings to be a Joint Procedure Committee the president of each organization appointed the members from their organization to the Joint Procedure Committee. Thereafter, membership appointment changed to the present method. Mr. Bucklin suggested that the name of the Committee be changed to "Supreme Court Advisory Committee on Procedural Law."

Judge O'Keefe MOVED to reject the suggested name change. Judge Leclerc seconded the motion. Motion CARRIED. Mr. Loder asked that the Minutes reflect that the Committee affirmed the use of its current name, i.e., Joint Procedure Committee.



The Parole and Probation Department drafted Uniform Criminal Judgment Forms with the assistance of the attorney general's office in response to the State v. Saavedra decision. The question presented to the Committee by the Parole and Probation Department is whether these forms should be adopted as uniform forms to be used across the state and whether the forms should be included within the Rules Manual.

Judge Leclerc indicated that the East Central Judicial District has its own form. He does not think these forms should be mandatory or uniform. He believes the judges should be allowed to do their work. Judge Smith indicated that he is not against the use of the forms but he does not want all things stated as a judgment. He indicated that he gave his input to the parole office regarding his objections to the forms. Mr. Peterson stated that he had once served on the parole board and one of the problems that the board confronted often when he was on it was that it was hard to tell what the conditions of probation were. He believes it is best to have uniform forms so that everyone knows what the conditions are. Mr. Kautzmann indicated that it is important to make sure that the deferred imposition of sentence forms indicate that under Federal statute the defendant cannot have firearms in his possession. There has been some confusion on the part of state judges indicating that once the deferred imposition has been successfully completed and the action dismissed that the defendant may then possess firearms. Judge Glaser indicated that he sees problems in the form but in looking at the broad picture he believes that the forms should be included in the Rules Manual as a sample form and that the forms should be placed in the appendix of forms. Judge Glaser MOVED that the forms be included in the Rule Book in the appendix of forms. Judge Kosanda seconded the motion. Motion CARRIED.

One of the Committee members inquired as to whether the forms that are currently in the rule book will be retained because there was a recommendation to the Court that they be deleted. Staff informed the Committee that the recommendation to delete the forms from the rule book was not accepted by the Court. The Court wishes to retain them and staff has been directed to update them for the next publication.

Mr. Kautzmann indicated that there should be a form included in the appendix of forms entitled "Order to Dismiss Deferred Imposition." He stated


that many young lawyers have contacted him concerning the drafting of such an order.

Judge Glaser indicated that it is a problem with the language of the Criminal Judgment and Commitment forms on page 182 and 183 of the meeting materials. He believes that there may be a misprint in number 2. The language "For a period of _________________ commencing _____________." is not a sentence. This provision needs work in that there are two propositions in the paragraph and it needs to be separated out. We talk about the execution of the imprisonment suspended for a period of time and then equate that to the probation period. He believes that the language intended is "the execution of all imprisonment is suspended for a period of _______________ commencing _______________." If the current language is read literally, it only postpones the date that the sentence would start. That is clearly not what is intended.

Staff was directed to prepare new forms for the next meeting for approval and that any suggestions by Committee members be sent to staff.


The Committee received a letter from Attorney Mike Nelson suggesting that the Committee approve a rule of evidence pertaining to judicial notice of law. He stated in his letter that he does not believe North Dakota's present judicial notice of law rule adequately addresses the use of laws in litigation. Judge Smith MOVED to approve with reservations Rule 202, NDREv. Judge Kosanda seconded the motion.

Judge Leclerc spoke concerning this issue since he was familiar with the example that Mr. Nelson set forth in his letter. Judge Leclerc indicated that Rule 201 covers Mr. Nelson's concern that judicial notice be taken of federal regulations. He indicated that there is no problem in taking judicial notice but it is not necessary if the law exists because that is a fact. The Committee then discussed the phrase "adjudicated facts" in Rule 201. It was pointed out by staff that a few states have expanded their rules to include "all facts". Mr. McLean questioned why Rule 44, NDRCivP, would not cover Mr. Nelson's concerns. Judge Glaser pointed out that Section 31-10-03, NDCC, should also cover Mr. Nelson's concerns. The Committee discussed those two provisions.


Mr. Peterson MOVED that consideration of Rule 202, NDREv, be tabled. Mr. Loder seconded the motion. Motion CARRIED. Staff was directed to send a letter to Mr. Nelson indicating that his concerns are covered by Rule 44, NDRCivP, and Section 31-10-03, NDCC.


Section 40-18-15, NDCC, as amended provides in part that a defendant in municipal court who wishes to waive the right to a trial by jury must do so in writing. Rule 23(a), NDRCrimP, provides that the defendant may waive a jury trial in writing or in open court with the approval of the court and consent of the prosecuting attorney. It was brought to the Committee's attention that perhaps the rule should be amended in order to address Section 40-18-15, NDCC, or to insert additional language in the explanatory note following Rule 23. Mr. Loder MOVED that staff prepare an amendment to the explanatory note following Rule 23 to indicate that in municipal court a jury waiver must be in writing. Professor Kraft seconded the motion. Motion CARRIED.


Judge Leclerc explained the problem that is being encountered in his judicial district when child support rights have been assigned to A.F.D.C. The problem is the lack of notice to the regional child support enforcement unit of proceedings to establish or modify a child support obligation when a party to the proceeding is receiving A.F.D.C. benefits and the party's right to child support is assigned to the State of North Dakota pursuant to Section 50-09-06, NDCC. Judge Leclerc indicated that there is one judge in his district who has threatened not to grant a divorce unless there is proof that social services has received notice. He said the State of Minnesota has a statute which addresses this issue. Mr. Heinley MOVED that no action be taken on proposed Rule 8.4 which provides that notification to the regional child support enforcement unit be made when child support is being established or modified when a party to the proceeding is receiving A.F.D.C. benefits and the party's right to child support has been assigned to the state. Judge Kosanda seconded the motion. Motion CARRIED.



The Committee received a letter from Attorney Steven Lies requesting that the format used for findings of fact, conclusions of law, order for judgment and judgment and decree be changed to help lighten the paperwork and streamline the final paperwork for attorneys in North Dakota. He enclosed a copy of a Minnesota judgment and decree. It was noted that the judgment and decree is contained in a paragraph following the judge's order for judgment.

Judge Leclerc thinks that this is an excellent idea and believes that we can do it now without a rule or without adopting a form. Mr. Peterson asked that a letter be sent to Steven Lies indicating that he can use this type of form presently. Judge Glaser indicated that the use of such a form could be a problem. In a divorce case for example, the agreement needs to be set out in the judgment. However, he agreed with the form generally. Judge Smith indicated that depending on the case, the form could be designed to include the agreement in a divorce case. The only suggestion was that in adopting the Minnesota format the signature must be by the clerk of court rather than by the deputy court administrator.

Judge O'Keefe MOVED that staff prepare such a judgment and decree form for publication in the Rules Manual. Judge Smith seconded the motion. Motion CARRIED. Staff was requested to send a letter to Steven Lies thanking him for his letter and indicating that the Committee thought that his suggestion was a very good one. Staff was also requested to review statutes which might present a problem in using such a form, i.e., domestic cases, and was encouraged to talk to clerks of court to see if such a form can be drafted and if they foresee any problems with it.



Justice Levine MOVED to approve all the proposed gender neutral amendments to the North Dakota Criminal Rules of Procedure and the North Dakota Rules of Evidence to track the Federal amendments. Ms. Schmitz seconded the motion. The following rules were amended: Rules 5, 5.1, 7, 10, 11, 12, 12.1, 12.2, 15, 16, 17, 17.1, 20, 21, 24, 25, 30, 32, 33, 38, 41, 42, 43, 44, 45, 46, and 49, NDRCrimP. Rules 104, 106, 404, 405, 411, 602, 603, 604, 606, 607, 608, 609, 610,


611, 612, 613, 615, 701, 703, 705, 706, 801, 803, 804, 806, 902, 1004, and 1007, NDREv.

Miscellaneous Topics

Judge Leclerc indicated that perhaps we should consider a new rule whereby pleadings in domestic cases must state that there is no other action pending. He stated that Minnesota has that requirement.

Mr. Peterson indicated that quite some time ago Rule 33 regarding interrogatories was before the Committee with a request that the number of interrogatories be limited. At that time, he fought it as did other Committee members. However, he believes that the Committee should take another look at it. He suggested that the other states be surveyed as to limitations on interrogatories. He indicated that he believes that Minnesota has limited interrogatories. He also suggested that Rule 26 be reviewed as to when the opposing party can take the deposition of the other side's expert witness. All judges differ concerning this. Some judges routinely set the deposition. However, there are judges that say no. Mr. Peterson suggested that perhaps an amendment could be made to Rule 26(b)(4) whereby criteria would be listed as to when it would be appropriate for the judge to allow the deposition.

Mr. McLean pointed out a problem that he has encountered under Rule 35 whereby plaintiffs' attorneys will not have their clients sign a medical authorization. These attorneys state that under the rule their only obligation is to deliver the records. Mr. McLean prefers to get the records himself to insure that he has all the medical records. He suggested amending the rule.

Judge Gierke pointed out that the Supreme Court Clerk of Court has a problem when appeals are filed without paying the fee. He suggested that a rule be drafted whereby a case is not considered filed unless the fee is paid or a waiver of the fee has been obtained.

Judge O'Keefe pointed out that he does not believe that there is anything in the statutes at the current time concerning where a county probate case would go on appeal. He challenged Committee members to find a statute or rule which addresses this issue. It appears this issue will have to be addressed in the future.



The meeting was adjourned at 4:15 p.m. The next meeting will tentatively be held at the end of March 1988.


Sandy Demianew, Secretary