Joint Procedure Committee Meeting

Scheduled on Thursday, February 19, 1987 @ 9:00 AM

MINUTES OF MEETING

Joint Procedure Committee

February 19-20, 1987

CALL TO ORDER

The meeting was called to order at 9:00 a.m., February 19, 1987, by Justice H. F. "Sparky" Gierke, Chairman. Justice Gierke thanked Judge Wallace Berning for hosting the Committee meeting in Minot and thanked him for aiding staff in setting up for the meeting.

ATTENDANCE

Present:

Hon. Wallace D. Berning
Mr. Arne Boyum, Jr.
Hon. Ronald Hilden
Mr. Dwight C. H. Kautzmann
Hon. Frank J. Kosanda
Professor Larry Kraft
Mr. James L. Lamb
Hon. Lawrence A. Leclerc
Hon. Beryl J. Levine
Hon. James H. O'Keefe
Mr. David L. Peterson
Ms. Cathy Howe Schmitz
Hon. Kirk Smith

Absent:

Mr. Leonard A. Bucklin
Hon. Eugene A. Burdick
Hon. Gerald G. Glaser
Mr. Robert C. Heinley
Mr. LeRoy A. Loder
Mr. Ronald McLean

APPROVAL OF MINUTES

Mr. Kautzmann MOVED that the minutes of the Joint Procedure Meeting of September 18-19, 1986, be approved as submitted. Professor Kraft seconded the motion. Motion CARRIED.

Rule 8.4, NDROC

The Committee discussed proposed Rule 8.4 regarding property agreements in divorce cases. The


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Committee discussed the proposed rule on page 31 of the meeting materials and the alternative proposed rule in handout #1. Judge Leclerc indicated that he felt that the Committee was trying to cure an uncommon problem. He indicated that the 72-hours requirement found in alternative Rule 8.4 does not cure the problem of when uninformed, unrepresented parties enter into a property agreement. Justice Levine stated that a 3-day waiting period does not give a party enough time. Mr. Kautzmann indicated that the term "property agreement" is not the proper word of art. Parties can wrangle out of the rule for example by terming the agreement as a child custody agreement. Other problems would also occur with the adoption of such a rule. The rule does not solve the problem of someone being unrepresented in a divorce action and this cannot be controlled by rule.

Rule 60(b)(6), NDRCivP, governs the reopening of a case but if we start adding time limits such as 30 days or 3 days then there is no finality. Professor Kraft compared an unrepresented criminal defendant who is questioned in court and then sentenced to an unrepresented party in a divorce action who is questioned in court concerning a property agreement. He felt the rule would only add to domestic case problems.

Judge Leclerc indicated that perhaps we should follow the Minnesota rule but stated that that rule may not solve the problem either. Ms. Schmitz commented that you cannot protect people from themselves.

Judge Smith stated that if there was a 20-day waiting period some fact situations could be eliminated. The rule could provide that a hearing cannot be held until 20 days after a summons is served. Mr. Kautzmann and Mr. Peterson indicated that this would not help due to the fact that often times property agreements are arrived at 20 minutes before the hearing and the unrepresented party would still not have a chance to rethink his position or to talk to an attorney concerning the agreement.

Mr. Kautzmann MOVED to reject proposed Rule 8.4 and alternative proposed Rule 8.4, NDROC. Judge Berning seconded the motion. Motion CARRIED.

Judge Leclerc suggested that some study be given to the Minnesota rule. Mr. Kautzmann indicated that he had no objection to study the Minnesota rule if proposals were sent to the Family Law section for input. Mr. Kautzmann indicated that the Committee understands what happened in the Hill case but that it


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is not the general rule. Staff was instructed to send both draft proposals of the Rule 8.4 to the Family Law section of the Bar and the district judges for their comments. Professor Kraft stated that an explanation of the Committee's action on this proposed rule be sent with the two draft proposals.

Rule 23(d), NDRCrimP

Mr. Peterson commented that the proposed change to Rule 23(d), NDRCrimP, to track the Federal rule would liken the rule to Rule 52(a), NDRCivP. He questioned why the Committee would want to do this. Judge Leclerc felt that this was a blind following of the Federal rule. He indicated that this would establish another way for the appellate courts to impact on the finality of the decision and pointed out that there was no standard on review. He indicated that this would cause problems in the county court and that in the district court it would result in more jury trials. Mr. Peterson indicated that this would create additional work for the trial court and appellate court and he feels that the change is unnecessary. Mr. Kautzmann stated that he believed that the issue should not be whether the court is being burdened. The court sits for the benefit of the litigant and not for the benefit of the court. Our goal is to make sure that litigants receive justice.

Judge Berning MOVED to reject proposed Rule 23(d), NDRCrimP. Judge Smith seconded the motion. Motion CARRIED.

Rule 45, NDRCivP

At the September 1986 meeting, the Committee agreed to redraft Rule 45 in its entirety. Professor Kraft submitted a redraft to staff for the Committee's consideration. Professor Kraft stated that it should be as easy to serve a subpoena as it is to serve a summons and that was the change that he tried to implement in the rule draft.

Judge Leclerc indicated that there is a reason as to why service of a summons is much easier than service of a subpoena. If you do not answer a summons, the result is a default in judgment, whereas if you fail to answer a subpoena you could end up in jail. However, Mr. Kautzmann pointed out that the point is not whether a person answers a subpoena but getting the person served in the first place. Therefore, he believes dwelling house service should be


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available when serving a subpoena. It does not make sense to allow dwelling house service for a summons and not for a subpoena.

Mr. Peterson MOVED to approve proposed Rule 45, NDRCivP. Mr. Kautzmann seconded the motion. Justice Gierke inquired as to whether Mr. Peterson's motion included the changes suggested by Judge Burdick in handout #1. Mr. Peterson indicated that the motion did not. The Committee discussed a few of the changes that were suggested by Judge Burdick such as including depositions, changing the word "person" to "individuals" and how that would apply to corporations.

Judge Leclerc MOVED a substitute motion that the materials in the agenda relating to proposed Rule 45 be adopted and that proposed Rule 45 be sent back to staff and in consultation with Professor Kraft to dovetail in Judge Burdick's suggestions and to reference Rule 4 in Rule 45(d)(1) entitled Service. Mr. Lamb seconded the motion. Motion CARRIED.

Explanatory Note to Rule 5(d)(4), NDRCivP

The Committee reviewed the suggested style change by Judge Burdick contained in handout #1. The Committee felt that the language should be kept as strong as possible and therefore rejected the proposed style change.

Judge Leclerc MOVED to approve the explanatory note to Rule 5(d)(4), NDRCivP. Judge Kosanda seconded the motion. Motion CARRIED.

Rule 3(d), NDRAppP and Explanatory Note

Judge Leclerc MOVED to approve the explanatory note to Rule 3(d), NDRAppP. Mr. Kautzmann seconded the motion. Motion CARRIED.

Professor Kraft indicated that the style changes as suggested by Judge Burdick to Rule 3(d), NDRAppP, are accurate and should be considered. Professor Kraft MOVED to accept the style changes to Rule 3(d). Mr. Lamb seconded the motion. Motion CARRIED.

Judge Smith suggested a style change to Rule 3(d) and suggested that the language on line 19, page 52 of the meeting materials be changed to read as follows: "Such mailing is sufficient Sservice is sufficient notwithstanding the death of a". Judge


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Leclerc seconded the motion. The motion on voice vote failed. A division of the House was called and the motion FAILED 6-1.

Rule 3(d), NDRAppP

RULE 3. APPEAL AS OF RIGHT--HOW TAKEN

(d) Service of the Notice of Appeal. The clerk of the trial court shall serve cause a copy of the notice of the filing of the notice of appeal by mailing a copy thereof to be mailed to the clerk of the supreme court and to counsel of record for each party other than the appellant, or, if a party is not represented by counsel, to the party's party at hislast known address.

In criminal cases, habeas corpus proceedings, or post-conviction proceedings, the clerk shall also mail a copy of the docket entries to the clerk of the supreme court. If an appeal is taken by a defendant in a criminal case, the clerk shall also serve a copy of the notice of appeal upon, either by personal service or by mail addressed to. The clerk shall note on each copy served mailed the date on which the notice of appeal was filed. Failure of the clerk to serve cause thenotice to be mailed does not affect the validity of the appeal. Service is sufficient notwithstanding the death of a party or his the party'scounsel. The clerk shall note in the docket the names of the parties to whom he mails copies are mailed, with the date of mailing.

The title of the action is not to be changed in consequence of the appeal.

Rule 8(b), NDRAppP and Explanatory Note

Professor Kraft MOVED to accept the style change suggested by Judge Burdick in handout #1 to Rule 8(b), NDRAppP. Mr. Lamb seconded the motion. Motion CARRIED.

Rule 8(b), NDRAppP

RULE 8. STAY OR INJUNCTION PENDING APPEAL

(b) Stay May Be Conditioned Upon Giving of Bond; Proceedings Against Sureties. Relief available in the supreme court under this rule may be conditioned upon the filing of a bond or other appropriate security in the trial court. If security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits himself to the jurisdiction of the trial court and irrevocably


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appoints the clerk of the trial court as his the surety's agent upon whom any papers affecting his the surety's liability on the bond or undertaking may be served. His A surety's liability may be enforced on motion in the trial court without the necessity of an independent action. The motion and such the notice of the motion as the trial court prescribes may be served on filed with the clerk of the trial court, who shall forthwith mail copies to the sureties if their addresses are known.

Judge Leclerc MOVED to approve the explanatory note to Rule 8(b), NDRAppP. Justice Levine seconded the motion. Motion CARRIED.

It was agreed to add the language: "The amendment is technical in nature with no substantive change." at the end of the explanatory note to Rule 8.

Rule 8, NDRAppP, Explanatory Note

Derived from Rule 8, FRAppP, this rule provides a clear statement of the procedure for obtaining a stay or similar relief with respect to the action of the court, pending appeal. The previous appellate practice rules provided no clear definition of this matter, except as to the statutes governing stays in criminal cases. Subdivision (c) assures that the procedure for stays in criminal matters is consistent with Rule 38, North Dakota Rules of Criminal Procedure. In this rule the authority of a single justice to act on procedural matters is first mentioned. These rules contemplate that many applications for procedural relief may be handled by a single justice, with substantial savings in time and reduction of the actions requiring a quorum of the Court.

Subdivision (b) was amended, effective ____________________, to track the 1986 amendment to the Federal Rule. The amendment is technical in nature with no substantive change.

Explanatory Note to Rule 12(a), NDRAppP

Judge Leclerc MOVED to approve the explanatory note to Rule 12(a), NDRAppP. Justice Levine seconded the motion. Motion CARRIED.

Rule 25(a)(b), NDRAppP and Explanatory Note

Judge Leclerc MOVED to reopen consideration of Rule 25(a)(b), NDRAppP, for the limited purpose of


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considering Judge Burdick's suggested style changes on page 60 of handout #1. Justice Levine seconded the motion. Motion CARRIED. Judge Leclerc MOVED to adopt Rule 25(a)(b) with the recommended style changes and to approve the explanatory note. Judge Kosanda seconded the motion.

The Committee discussed the suggested changes by Judge Burdick. Professor Kraft indicated that this is not a style change but rather a procedural change. Under the current draft of Rule 25(a)(b), a single Justice can accept filing of the motion whereas if the suggested changes by Judge Burdick are adopted the Justice can only receive the motion for filing. Mr. Peterson indicated that filing should occur upon receipt. The Committee ultimately agreed with the changes proposed by Judge Burdick and the motion to accept Rule 25(a)(b), NDRAppP, with the recommended style changes and for approval of the explanatory note was CARRIED.

Rule 25(a)(b), NDRAppP

RULE 25. FILING AND SERVICE

(a) Filing. Papers required or permitted to be filed in the supreme court shall must be filed with the clerk. Filing may be accomplished by mail addressed to the clerk, but filing is not timely unless the papers are received by the clerk within the time fixed for filing. However, briefs, appendices, and transcripts are deemed filed on the day of mailing if the most expeditious form of delivery by mail, excepting special delivery, is utilized. If a motion requests relief which that may be granted by a single justice, the justice may permitreceive the motion to be filed with him for filing. If this occurs, hethe justice shall note thereon the date of filing and shall thereafter transmit it to the clerk.

(b) Service of All Papers Required. Copies of all papers filed by any party and not required by these rules to be served by the clerk, at or before the time of filing, must be served by a party or person acting for him that party on all other parties to the appeal or review. Service on a party represented by counsel must be made on counsel.

Explanatory Note to Rule 26(c), NDRAppP

Judge Leclerc MOVED to approve the explanatory note to Rule 26(c), NDRAppP. Mr. Lamb seconded the motion. Motion CARRIED.


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Explanatory Note to Rule 28(c), NDRAppP

Mr. Lamb MOVED to approve the explanatory note to Rule 28(c), NDRAppP. Professor Kraft seconded the motion. Motion CARRIED.

Explanatory Note to Rule 30(a)(b)(c), NDRAppP

Judge Berning MOVED to approve the explanatory note to Rule 30(a)(b)(c), NDRAppP. Judge Kosanda seconded the motion. Motion CARRIED.

Explanatory Note to Rule 31(a)(c), NDRAppP

Mr. Lamb MOVED to approve the explanatory note to Rule 31(a)(c), NDRAppP. Professor Kraft seconded the motion. Motion CARRIED.

Explanatory Note to Rule 34(e), NDRAppP

Mr. Lamb MOVED to approve the explanatory note to Rule 34(e), NDRAppP. Professor Kraft seconded the motion. Motion CARRIED.

Rule 43(a)(c), NDRAppP and Explanatory Note

Mr. Lamb MOVED to adopt Judge Burdick's suggested style changes to Rule 43(a)(c) and to adopt the explanatory note. Professor Kraft seconded the motion. Motion CARRIED.

Rule 43(a)(c), NDRAppP

RULE 43. SUBSTITUTION OF PARTIES

(a) Death of a Party. If a party dies after a notice of appeal is filed or while a proceeding is otherwise pending in the supreme court, the personal representative of the deceased party may be substituted as a party on motion filed by the representative or by any party with the clerk of the supreme court. The motion of a party shall must be served upon the personal representative in accordance with the provisions of Rule 25. If the deceased party has no personal representative, any party may suggest the death on the record and proceedings shall must then be had as the supreme court may direct. If a party against whom an appeal may be taken dies after entry of a judgment or order in the trial court but before a notice of appeal is filed, an appellant may proceed as


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if death had hot occurred. After the notice of appeal is filed, substitution shall be effected in the supreme court in accordance with this subdivision. If a party entitled to appeal shall die diesbefore filing a notice of appeal, the notice of appeal may be filed by his the decedent's personal representative, or, if he has there is no personal representative, by his the decedent's attorney of record within the time prescribed by these rules. After the notice of appeal is filed substitution shall be effected in the supreme court in accordance with this subdivision.

(c) Public Officers; Death or Separation From Office. When If a public officer is a party to an appeal or other proceeding in the supreme court in his an official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and his the officer's successor is automatically substituted as a party. Proceedings following the substitution shall must be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall must be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall does not affect the substitution. When If a public officer is a party to an appeal or other proceeding in his an official capacity he the officer may be described as a party by his the officer's official title rather than by name; but the supreme court may require his the officer's name to be added.

Rule 45(a)(b)(d), NDRAppP and Explanatory Note

Judge Leclerc MOVED to adopt the style change suggested by Judge Burdick to proposed Rule 45(d) and to approve the explanatory note. Judge Kosanda seconded the motion. Motion CARRIED.

Rule 45(a)(b)(d), NDRAppP

RULE 45. DUTIES OF CLERK

(a) General Provisions. The clerk of the supreme court shall take the oath and give the bond required by law. Neither the clerk nor any deputy clerk shall practice as an attorney or as counselor in any court while he continues in office. The supreme court shall be is deemed always open for the purpose of filing any proper paper, of issuing and returning process, and of making motions and orders. The office of the clerk, with the clerk or a deputy in attendance, shall must be open during business hours on all days except Saturdays, Sundays, and legal holidays. The


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clerk is under no obligation to give notice to the parties of time deadlines.

(b) The Docket; Calendar; Other Records Required. The clerk shall keep a book known as the docket, and shall enter therein each case. Cases shall must be assigned consecutive file numbers. The file number of each case shall must be noted on the folio of the docket whereon the first entry is made. All papers filed with the clerk and all process, orders, and judgments shall must be entered chronologically in the docket on the folio assigned to the case. Entries shall must be brief but shall and show the nature of each paper filed or judgment or order entered. The entry of an order or judgment shall must show the date the entry is made. The clerk shall keep a suitable index of cases contained in the docket.

The clerk shall prepare, under the direction of the supreme court, a calendar of cases awaiting argument. In placing cases on the calendar for argument, he the clerk shall give preference to habeas corpus proceedings, to appeals in criminal cases and to appeals and other proceedings entitled to preference by law.

The clerk shall keep such other books and records as may be required by the supreme court.

(d) Custody of Records and Papers. The clerk shall have custody of the records and papers of the court. He The clerk shall may not permit any original record or paper to be taken from his the clerk'scustody except as authorized by the orders or instructions of the supreme court. Original papers transmitted as the record on appeal or review shall must upon disposition of the case be returned upon disposition of the case to the court or agency from which they were received. The clerk shall preserve copies of briefs and appendices and other papers filed.

Governor's Commission on Victims and Witnesses of Crime

Staff explained the rule proposals suggested by the Governor's Commission on Victims and Witnesses of Crime. Justice Levine outlined the history of the Governor's Commission for the benefit of the Committee members. She also discussed the politics of the three proposals submitted to the Joint Procedure Committee for review, i.e. legislation vs. rule.

The proposals deal with video-taped depositions of alleged victims of a sexual offense who are under 18 years of age, the use of anatomically correct dolls, and an amendment to provide for a hearsay exception for minor victims and witnesses of a


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sexual offense. Judge Kosanda stated that he has a problem with hearsay exceptions but indicated that he would have no problem with video-taped depositions.

Professor Kraft commended Justice Levine for her stand as a member of the Governor's Commission in being firm in the fact that these three issues belong in rule form and not in legislative form. Professor Kraft indicated that the use of anatomically correct dolls could be discussed in the explanatory notes of the rules with the explanation that they would be allowed as long as proper foundation is laid.

Judge Smith indicated that all of these proposals must be viewed from the standpoint of whether they would pass constitutional muster. We cannot act only because of the high impact on child victim cases. Whatever the proposal will be, we must consider procedural due process under the Fifth Amendment and all Federal and State constitutional rights. Judge Leclerc indicated that we cannot make a political statement in an explanatory note. Professor Kraft differed with Judge Leclerc and indicated that referring to anatomically correct dolls in an explanatory note would be for purposes of clarification. Judge Smith reiterated that we will do what we can but that we cannot throw out the Constitution and the constitutional rights that a defendant has in child abuse cases. We have a Constitution so that public clamor cannot take over the government.

Justice Levine indicated that the hearsay exception request was made for consistency purposes. Some courts in the state allow it at the present time and some do not.

Judge Hilden, who served as a member of the Attorney General's Subcommittee of the Governor's Commission, discussed his view of the workings of the Commission. He indicated that it seemed that the lawyers and judges who served on the Commission were concerned with the unconstitutionality of the proposed legislation that the Commission formulated. However, the social workers seem to be operating from the standpoint of allowing summary execution of the accused.

Mr. Boyum stated that good things could come out of allowing video-taped depositions. Judge Smith indicated that the advocates for these changes are working under the premise that what a child says is true. Justice Levine indicated that there has been several studies conducted and that the conclusion is that young children cannot fabricate explicit sex.


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Mr. Peterson indicated that before hearsay is allowed there should be a requirement that all the interviews that a child has with a social worker, police officer, etc. be videotaped. Mr. Kautzmann agreed with Mr. Peterson's suggestion but questioned whether it was necessary for a judge to preside over every video-taped deposition. The question being whether it is a waste of trial time. Judge Leclerc and Mr. Peterson both indicated that it saves time because rulings are made immediately.

RECESS

The meeting recessed until 1:30 p.m., February 19, 1987.

CALL TO ORDER

The meeting was called to order at 1:30 p.m., February 19, 1987, by Justice Beryl Levine, acting Chairman.

ATTENDANCE

The roll call remained the same as in the morning session, except Justice Gierke was absent due to illness.

Governor's Commission on Victims and Witnesses of Crime cont'd

Justice Levine stated that the proposals suggested by the Governor's Commission will be discussed one-by-one beginning with the anatomical dolls, followed by the video-taped depositions and finally the hearsay exception.

Judge Leclerc indicated that he has allowed anatomically correct dolls to be entered into evidence. Judge Smith indicated that there has never been any anatomically correct dolls offered in a case in Grand Forks and Judge Hilden indicated that that was the same in Dickinson. Justice Levine stated that the information that came to the Governor's Commission was that anatomically correct dolls could not be introduced into evidence. Staff counsel indicated that the Court Services Subcommittee of the Governor's Commission received information that anatomically correct dolls were not being used consistently throughout the state. Judge Smith stated that we are discussing this issue


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based on rumors. Some courts in this state have not even been confronted with this issue.

It was pointed out that another question to be considered is what would be the acceptable size of the doll. Judge Leclerc stated that we may need an innocuous statement in the explanatory notes concerning the size of the doll.

Justice Levine suggested that perhaps the Committee could poll the courts in order to find out what is happening across the state. Professor Kraft indicated that we are all believers and the question is how do we let the public know that we agree. He did not believe that anatomically correct dolls should be addressed by rule or by statute. He suggested that perhaps we need to have continuing education for the state judges and we may need to educate the public too or again we may be able to address this in an explanatory note.

Mr. Kautzmann indicated that the real question to be answered is whether we need a rule to allow the use of anatomically correct dolls or to prohibit the use. He disagreed with Professor Kraft in that he does not believe that we should placate the public by putting a footnote in the explanatory note. The public does not read the North Dakota Rules Manual. Mr. Kautzmann felt that we do not need a rule. The question of whether the prosecution can get the dolls into evidence is up to the judges. The facts dictate what the ruling is going to be. Professor Kraft indicated that we may need a comment in the explanatory notes for clarification for judges or lawyers. Judge Kosanda indicated that lawyers are viewed suspiciously. He agrees with Mr. Kautzmann but a note may be needed to better explain why a rule is not needed. Judge Smith indicated that a press release could be used to explain the Committee's position. Mr. Lamb pointed out that demonstrative evidence is not usually refused in court.

Mr. Peterson suggested that the chairman write a letter to the Attorney General requesting that he include in the training program for state's attorneys a section on anatomical dolls and to address the issue of how to get it into evidence. Judge Smith suggested that a survey be done to determine whether anatomically correct dolls have been offered into evidence and if they have ever been refused. Judge Leclerc indicated that the survey should be sent to prosecutors also and not just to judges. Judge Smith stated that then we would have the facts before us. Mr. Kautzmann pointed out the view of the defense when


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anatomically correct dolls are used. The doll is inflammatory. While one can make the same argument in a civil case, i.e. skull, eye, etc., the defendant does not stand to lose his or her liberty and the element of proof is different. Giving the doll to the child on the stand for use can inflame the jury simply by how the child uses it. We must remember that the defendant is presumed innocent and we do not want to use inflammatory evidence against the defendant. Also, what if the defense admits that the child has been abused, the remaining question is who did it. At that point caselaw says that demonstrative evidence cannot be used. So if we put a comment in what have we done? Have we misled the public?

Judge Smith MOVED that all trial judges and all prosecutors be surveyed on the question of whether anatomical dolls have been received or even offered. Judge O'Keefe asked Judge Smith to hold up on his motion and he agreed to do so.

Judge O'Keefe MOVED that an explanatory note be drafted defining the Committee's position on the use of anatomically correct dolls that this is not a unique problem and that its acceptance depends on relevancy and suggested that the explanatory note be made to Rule 403, NDREv. Professor. Kraft seconded the motion. Motion CARRIED. Judge Smith abstained.

The Committee then discussed the issue of video-taped depositions. Mr. Lamb inquired as to why the cut-off was at 18 years of age. It was explained to Mr. Lamb that the Court Services Subcommittee to the Governor's Commission wanted the section to be as broad as possible in terms of allowing minors to testify by use of video tapes. Mr. Lamb pointed out that this would not apply to a 21-year-old retarded person and there may be just as much need for use of a video deposition as there would be in the case of a minor victim of a sex offense.

Judge Leclerc responded that this can be done at the present time. However, Mr. Boyum indicated that court personnel may not know how to proceed concerning these delicate cases. Mr. Lamb indicated that again education may be needed on this topic. Professor Kraft inquired as to what the difference is between an abused child and other children that are traumatized by the court.

Judge Smith indicated that the two primary questions are: Did the offense occur and if so who did it? You cannot assume that it did happen because someone says so such as the child or the parents. But


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the social workers believe the story and then they go out and try to obtain a conviction. You cannot assume that the offense has in fact happened, you cannot write a rule whereby the premise is that the offense has been committed. We have a presumption of innocence in this state.

Judge Hilden pointed out that the rule would be superfluous because we can use video-taped depositions under the current rules. Judge Leclerc asked whether we could draft a criminal rule for sensitive witnesses/victims. Mr. Kautzmann inquired as to the procedure of the video-taped depositions, as set forth on page 91 of the meeting materials. What about the defendant's right to a speedy and public trial? Under the proposed rule for video-taped depositions, the judge has the right to decide who may come to a video-taped deposition. Justice Levine indicated that to the best of her knowledge the right to confront witnesses issue has been upheld.

Mr. Peterson referred the Committee to Rule 15(d), NDRCrimP. Depositions are taken as provided in a civil action. There is nothing new that is currently being proposed. However, Rule 15(h) talks about substantive use and has limitations.

Judge Smith stated that the jury has the duty to judge the character of the witnesses. A t.v. screen may not allow the jury to do that. The use of video-taped depositions should be allowed on a case-by-case basis and must be viewed with the Constitution. He believes that we can address this under the existing rule and that we do not need a new rule.

Staff was requested to research court decisions on each subsection of the proposed rule and to obtain copies of all statutes which allow the use of video-taped depositions.

Judge Leclerc MOVED to defer action on this issue until staff reports back as to how many states have a law addressing this issue and provides copies of the various statutes or rules, that all caselaw be reviewed and cited for the Committee's use, and that the language usage be compared to other state statutes or rules. Judge Kosanda seconded the motion. Motion CARRIED.

Mr. Kautzmann pointed out that staff should review North Dakota statutes also because of the different age cut-offs. Under the hearsay rule that has been proposed to the Committee, the minor must be


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under the age. of 12. He also suggested checking the age requirement in other state statutes.

The Committee then discussed the hearsay exception proposal. Mr. Boyum indicated that he had been involved in the child protection team. Proponents of the hearsay exception are upset due to past experiences that they have had with the judicial system but he indicated that it has gotten better. Staff explained the history and the politics of the Governor's Commission concerning this issue. The proponents were adamant that this issue be addressed by the Legislature. It was pointed out to all the Commission members that there is a catch-all in the current hearsay rule and that the Supreme Court can supersede any rule of procedure that the Legislature may pass. However, it was not until the final report went to the Governor, Justice Levine, and the Attorney General that Justice Levine was able to convince them that this issue belongs in rule form and not in legislative form.

Mr. Boyum indicated that we need to train social workers and prosecutors on how to talk to minor victims of child abuse. He feels that this is a question of education. Justice Levine indicated that the supreme court in the State of Montana has recently ruled on this hearsay exception. Judge Smith stated that the Legislature is not competent to rule on what evidence may come into the court. They can set the standard but the judge must be able to apply the standard to a given set of facts and use his discretion. We cannot allow the Legislature to usurp the authority of the judge and this would not be good for the defendant. The proposed legislation that was viewed by the Commission was geared toward conviction. (See meeting materials at page 97).

Mr. Lamb MOVED to refer this matter to staff and request the proponents of this exception provide caselaw which supports the fact that this hearsay exception is permissible and that there is a need for it. Judge Smith suggested that a resolution be prepared to send to the proponents of the hearsay exception. Judge Leclerc seconded the motion. Motion CARRIED.

Judge Smith MOVED to invite the provider services subcommittee of the Governor's Commission to attend the next Joint Procedure Committee meeting. Judge Leclerc seconded the motion. A meeting between the two groups would allow us a better understanding of where they are coming from and will allow them a better


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understanding of where we are coming from. Motion CARRIED.

Rule 68, NDRCivP

At the last meeting, the Committee members discussed expanding Rule 68 to allow plaintiffs to make an offer of judgment. The meeting materials contain three proposed amendments to the rule which would accomplish this. The two alternative rule drafts are patterned after the 1983 and 1984 proposed amendments to the Federal rule. The Federal amendments were not adopted.

Mr. Peterson stated that Rule 68 should be expanded because the system discriminates against the plaintiff. The plaintiff should have an opportunity to make an offer also. This would force serious settlement negotiations prior to settling the case at the courthouse door. The Committee discussed the fact that Rule 68 is not used very much at the current time. The Committee also discussed whether attorneys fees should be included in the amendment to Rule 68 or if the amendment should only be expanded to allow plaintiffs to make an offer. Judge Leclerc indicated that he believes that we should avoid including payment of attorneys fees and stated that the Committee should consider the proposed rule beginning on page 104 of the meeting materials.

Judge Leclerc MOVED to approve proposed Rule 68(a), NDRCivP. Judge Kosanda seconded the motion. The Committee discussed whether the amendment was necessary. Mr. Lamb indicated that he felt the rule should be left alone. Mr. Peterson stated that the amendment would encourage settlements and would also provide uniformity because courts at the present time are not consistent on what are allowable costs.

Judge Smith MOVED to delete on line 18 of page 104 of the meeting materials the following language: "finally obtained by the offeree" and to accept Judge Burdick's style changes as set forth in handout #1 pages 104-105. Mr. Peterson seconded the motion. Motion CARRIED. The original motion by Judge Leclerc to approve proposed Rule 68(a), NDRCivP, was CARRIED.


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Rule 68 (a) NDRCivP

RULE 68. OFFER OF SETTLEMENT OR CONFESSION

OF JUDGMENT. TENDER

(a) Offer of Judgment Settlement. At any time more than 10 days before the trial begins, a party defending against a claim any partymay serve upon the an adverse party an offer, denominated as an offer under this rule, to allow judgment to be taken against him settle a claim for the money or property or to the effect specified in his offer, with costs then accrued. and to enter into a stipulation dismissing the claim or to allow judgment to be entered accordingly.If within 10 days after the service of the offer, the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment upon order of the court. An offer not accepted shall be is deemed withdrawn and evidence thereof of the offer is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offeree, the offer must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the Ifliability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the any party adjudged liable may make an offer of judgment settlement under this rule, which shall have has the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior tobefore the commencement of hearings to determine the amount or extent of liability.

RECESS

The meeting was recessed until 9:00 a.m., February 20, 1987.

CALL TO ORDER

The meeting was called to order at 9:00 a.m., February 20, 1987, by Justice H. F. "Sparky" Gierke.


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ATTENDANCE

The roll call remained the same as in the morning session of February 19, 1987, except that Arne Boyum was absent.

Rule 68(b), NDRCivP

The Committee discussed the language contained on lines 6-12 and questioned whether that provision was necessary. The Committee then questioned what was intended by Rule 68(a)(b), NDRCivP.

Mr. Kautzmann MOVED to table Rule 68(b), NDRCivP, until the next meeting. Judge Leclerc seconded the motion. The Committee requested that the minutes relating to the adoption of Rule 68(a)(b), NDRCivP, be available for review at the next meeting. Motion CARRIED.

Rule 47 (a), NDRCivP

Mr. Kautzmann MOVED to approve proposed Rule 47(a), NDRCivP. Mr. Peterson seconded the motion. The Committee discussed the motion.

Mr. Peterson had requested that the rule be amended because the practice of jury selection is not consistent throughout the state. Judge Leclerc indicated that they call this method the Minnesota practice in their district. They try to use this method as often as they can. He pointed out that the proposed rule addresses criminal cases and that should be deleted. He disagreed with setting out numbers in the rule due to the fact that the jury size differs and the number of peremptory challenges differ depending on the case. How the system works in his district is that a panel of prospective jurors will initially be seated for examination equal to the number of jurors to be seated plus the number of peremptory challenges which will be allowed.

Judge Smith indicated that maybe this should be tried as an experiment. It may not save time to use this procedure. Judge O'Keefe indicated that this procedure is not used in his district and he is not sure a rule should be made on this because it may not save time. Judge Hilden indicated he was troubled by the rule and he does not think there is a problem. Judge Leclerc indicated that he has used this method and it saves a lot of time. Mr. Kautzmann indicated that we should have a rule so that we have uniformity of practice throughout the state.


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Judge Leclerc MOVED a substitute motion that we need a court rule which sets out the procedure for voir dire of jurors and to put it into both the criminal and civil rules. Judge O'Keefe seconded the motion. Motion CARRIED.

Staff was directed to draft a rule of court to apply to criminal and civil rules when calling venire for review at the next meeting. Mr. Peterson indicated that lawyers would not have to exercise all of their peremptories under this proposed rule. Judges that have used this method have simply dropped off the last prospective jurors that were called in order to get the right number for the jury. Judge Smith indicated that there will be a problem with the courtrooms due to the fact that a jury box only seats 12. He questioned whether the examination can be done in the audience seating area. No one seemed to have a problem with that. Staff was asked to check all variations and give alternatives to the Committee.

Rule 54(e), NDRCivP

At the September meeting, Staff was requested to draft an amendment to Rule 54(e), NDRCivP, to address the problem that has arisen in regard to the taxation of expert witness fees. Mr. Bucklin submitted an alternative proposed rule to be considered by the Committee contained in handout #4. Mr. Peterson pointed out that Sections 28-26-06 and 28-26-02 of the North Dakota Century Code discuss expert witness fees as does Rule 54. He stated that we ought to have one rule rather than a rule and several statutes. He suggested that we create a new rule and supersede the statutes on taxation. Right now it is a cumbersome process, no one knows what to do. Judge Hilden stated he has the same problem as Mr. Bucklin in his letter. No two courts in the state are the same and there is no guidance. He indicated that there is no standard to follow and a uniform rule would help because now the procedure is clear as mud.

Judge Smith suggested the following alternative method: Determination of whether expert witness fees are to be allowed and if so the allowed amount is to be made in the sound discretion of the trial judge. So let's automatically tax everything else and just make sure that expert witness fees, that are in addition to the statutory amounts to any witness, be run through the court. Then the court submits them, the taxation of costs goes to the clerk, and if anyone objects a hearing will be held.


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Mr. Kautzmann stated that that still would not help because there is no guidance or test so there is no uniformity. It is simply based on sound discretion. Judge Smith indicated that experts come with all kinds of expertise at differing costs. Some are extravagant in their costs and some are modest. You cannot have a rule that tells judges they have to accept what is given to them. Mr. Kautzmann pointed out that there are Federal cases which give standards that are to be applied. North Dakota caselaw holds that the judges are to use sound discretion. He suggested that North Dakota's caselaw be reviewed.

Mr. Peterson MOVED that staff be directed to draft a proposed rule to incorporate the provisions of Sections 28-26-02 and 28-26-06 of the North Dakota Century Code and Rule 54(e) into one rule for consideration at the next meeting. Judge O'Keefe seconded the motion. Motion CARRIED.

Staff was directed to review other state statutes which address the taxation of expert witness fees and also to bring copies of any North Dakota decisions and Federal decisions on this issue to the next meeting.

Rule 3.2(c), NDROC

The Committee discussed a proposed amendment to Rule 3.2 which would close an apparent loop-hole and also discussed Mr. Clifton Rodenburg's letter regarding the fact that Rule 3.2 is not being used uniformly across the state.

Judge Smith indicated that there is not a common understanding of what Rule 3.2 means by lawyers and judges. Mr. Lamb indicated that Rule 3.2 arose after the adoption of a similar Federal court rule. The Federal rule is very rigid. Under the Federal rule, if the party does not file a brief the party does not have the chance to argue. Mr. Lamb explained that under the North Dakota rule if a party asks for oral argument there are some judges in North Dakota that say briefs are no longer necessary because it is no longer a 3.2 motion. The Committee discussed the problem with the Cass County local rule applying to out-of-town attorneys. It was pointed out that in Dickinson a district judge will not grant a hearing on a 3.2 motion at all.

Judge Kosanda MOVED to approve proposed Rule 3.2(c). Mr. Peterson seconded the motion. Motion CARRIED.


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Mr. Peterson MOVED to approve the explanatory note to Rule 3.2. Judge Berning seconded the motion. Motion CARRIED.

Mr. Peterson stated that the time frame in Rule 3.2(a) should be modified since three days before hearing is too cumbersome. Judge Leclerc MOVED that staff look at 3.2(a) and to submit an amendment pertaining to the time requirement. Mr. Kautzmann seconded the motion. Motion CARRIED.

It was also suggested that staff counsel review Rule 6(b), NDRCivP, and consider amending this rule also in order to be consistent with Rule 3.2. Staff was also requested to review Rule 3.2 in its entirety. One question to be researched is whether a party is afforded a hearing automatically upon request.

The Committee then reviewed the first sentence in the explanatory note to Rule 3.2 which states, "The language of subdivision (c) does not prevent a court from adopting a local rule requiring that every motion be noticed for hearing." This sentence is in conflict with the rule. Another issue that was brought up was whether a notice of motion is needed. Judge Leclerc stated that he believes that since the Supreme Court added the first sentence to the explanatory note that we should leave it alone.

Mr. Peterson MOVED to request the Court to delete the first sentence because it conflicts with the content of Rule 3.2. Mr. Kautzmann seconded the motion. Motion CARRIED. Judge Leclerc requested that his vote be recorded as a "no".

Rule 3.2, NDROC, Explanatory Note

The language of subdivision (c) does not prevent a court from adopting a local rule requiring that every motion be noticed for hearing.

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.

Subdivision(c)was amended, effective ___________________, to clarify that a party is required to timely serve and file a brief as provided for in subdivision (a) before requesting the taking of testimony or oral argument on the motion.


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

The Committee received a letter from Lawrence R. Klemin requesting that Rule 4(e)(2)(A), NDRCivP, be amended. The rule states that a sheriff's return must state that he is unable to make personal service upon the defendant in this state. The problem Mr. Klemin has encountered is that sheriffs are reluctant to include the "in this state" language in their return when they are unable to make service because, as they contend, their jurisdiction is limited to their particular county. The Committee discussed this letter and indicated that they do not see a problem with the rule because the attorney can make an affidavit. This provision was probably contained in the code prior to the adoption of the rule. Prior practice was that when sheriffs tried to find a defendant in the state they would send it to another sheriff, etc. However, they may not be doing that at the present time.

Ms. Schmitz MOVED to delete the language "in this state". Justice Levine seconded the motion. The Committee discussed the problems in deleting that language, i.e. what if the defendant is in another county.

Mr. Lamb made a substitute motion to refer this matter to staff to see where this language came from and why it was put in the rule in the first place. Professor Kraft seconded the motion. Motion CARRIED.

Justice Levine and Judge Leclerc indicated to the chairman that they had to leave the meeting early. Therefore, the chairman discussed when the next Committee meeting would be held. The Committee agreed to tentatively set a meeting in the month of May.

Annotation of Procedural Rules

Judge Glaser sent a letter to Chief Justice Erickstad discussing the possibility of annotating our procedural rules. His letter was referred to the Joint Procedure Committee.

Judge Berning MOVED to not annotate the procedural rules. Judge Hilden seconded the motion. Motion CARRIED. The Committee felt that the task would be too arduous and that it was not necessary since the rules are annotated in other publications.


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Search Warrant Forms

Deputy Attorney General Bruce Quick sent a letter to the Joint Procedure Committee requesting that the sample search warrant forms following the criminal procedure rules be amended. He requested that the Joint Procedure Committee seriously consider amending form 8. Mr. Quick attached search warrant forms from the State of Iowa for consideration by the Committee.

Judge Kosanda MOVED that no action be taken on Mr. Quick's request. Judge O'Keefe seconded the motion. Mr. Kautzmann MOVED to kill the request. Committee members indicated that Judge Kosanda's motion accomplishes that in effect. Mr. Kautzmann withdrew his motion. Motion CARRIED.

The Committee discussed that a lawyer may use any form and commented that Mr. Quick could circulate the Iowa forms to the state's attorneys in the State of North Dakota.

Professor Kraft MOVED to take all forms out of the rule manual. Ms. Schmitz seconded the motion. The forms are antiquated and many members felt that it was best to delete them from the rules manual. Motion CARRIED.

Rule 68(c), NDRCivP

The Committee discussed the Walnut Equipment Leasing Co. v. Bennett case which was decided in the South Central Judicial District. The court held that the cognovit provision of the guaranty was void in North Dakota law not because of public policy but because the law or rule in North Dakota permitting a pre-default confession of judgment is unconstitutional when so applied in a contract. The court followed the lead taken by the State of California which had an identical statute to North Dakota's Rule 68(c). In 1978, the Supreme Court of California reviewed its statutes as applied to a cognovit and found that the statutes were lacking in constitutional due process. The State of California has subsequently amended its law.

Mr. Peterson requested that staff counsel research Rule 68(c), NDRCivP, to see if there have been any U.S. decisions on this issue, to research the full faith and credit issue and also to determine if the Walnut case is presently on appeal to the North Dakota Supreme Court.


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Adjournment

The meeting was adjourned at 11:00 a.m. The next meeting will be tentatively held in May 1987.

_____________________________
Secretary