Joint Procedure Committee Meeting
Scheduled on Thursday, March 16, 1978 @ 1:00 PM
MINUTES OF MEETING
Joint Committee of the Judicial Council
and the State Bar Association
Joint Procedure Committee
March 16-17, 1978
CALL TO ORDER
The meeting was called to order at 1:00 p.m., March 16, 1978, by Justice Paul M. Sand, Chairman.
ATTENDANCE
Present:
Hon. Robert Vogel
Hon. Eugene A. Burdick
Hon. Gerald G. Glaser
Hon. James H. O'Keefe
Hon. Kirk Smith
Hon. Halvor L. Halvorson
Hon. William S. Murray
Mr. LeRoy A. Loder
Mr. Jon M. Arntson
Absent:
Hon. Larry Hatch
Hon. R. C. Heinley
Mr. Harry Pearce
Mr. Leonard H. Bucklin
Mr. David L. Peterson
Mr. Larry Kraft
Mr. Timothy Q. Davies
Mr. James L. Lamb
Mr. Kent Higgins
Mr. Calvin N. Rolfson
Staff Present:
Joel Gilbertson
Eveleen Klaudt
APPROVAL OF MINUTES
Judge Burdick MOVED to dispense with the reading of the Minutes, and that they be approved. Judge Murray seconded the motion. Motion CARRIED.
RULE 3(d), NDRAppP
Judge O'Keefe MOVED that no amendment be made to this Rule, as had been suggested by Mr. Wefald, a member of the subcommittee on appellate rules. Judge Murray seconded the motion. Motion CARRIED.
RULE 7, NDRAppP
It was decided by the Committee to do nothing further with Rule 7.
RULE 10, NDRAppP
Judge Burdick suggested that a subdivision be added to create sanctions if the appellee refuses to stipulate on the partial transcript. It was decided to postpone action on this suggestion pending discussion of Rule 11, NDRAppP.
-2-
RULE 11, NDRAppP
Justice Vogel MOVED to adopt the subcommittee draft of Rule 10, NDRAppP, and Rule 11, NDRAppP, subject to further amendment, Mr. Loder seconded the motion. Motion CARRIED.
RULE 11, NDRAppP
Judge Burdick MOVED to amend Rule 11 as follows: Line 14, delete the words "enable the clerk to assemble and transmit" and insert "expedite the assembly and transmission of"; line 122, delete "Rule 11(d)" and insert "subdivision (a)"; line 124, the word "immediately" should follow "give notice." Mr. Higgins seconded the motion. Motion CARRIED.
RULE 10, NDRAppP
Style change on line 25, delete "of this rule"; and change "report" to "reporter".
Mr. Higgins MOVED to amend Rule 10, lines 38, 39, and 40 by deleting the following language: "Failure to make advance payment within ten days after service of the demand is ground for dismissal of the appeal." And the following language after line 44: "If the appellant fails to make the demanded advance payment within 10 days after service of the demand, the reporter may suspend preparation of the transcript until payment is made." Judge Smith seconded the motion. Motion CARRIED.
Judge Burdick MOVED to amend line 44, after the word "reporter" add "or by a party in his behalf." Judge Smith seconded the motion. Motion CARRIED.
Judge Burdick MOVED to add the following language on line 11, after the word "appeal": "If a party affected by the appeal unreasonably refuses to stipulate to exclude from the transcript portions of the record not necessary to the appeal, the party proposing the stipulation may apply to the trial court for an order requiring the refusing party to pay for the unnecessary portions of the transcript and reasonable attorney's fees for making the application." Mr. Higgins seconded the motion. Motion CARRIED.
Judge Burdick MOVED to amend Rule 10 by adding the following language after the first sentence in subdivision (d): "If preparation of the transcript has been suspended by the reporter for failure of any party to make a timely advance payment upon demand, the trial court, upon a noticed hearing, for good cause shown by the party responsible for the delay, may extend the time for completion of the transcript on terms the court may impose." Mr. Higgins seconded the motion. Motion CARRIED.
Mr. Higgins MOVED to have all amendments adopted today on Rule 10 subject to any amendments to Rule 10 adopted later, and to table further discussion of Rule 10 until the morning session. Judge Glaser seconded the motion. Motion CARRIED.
-3-
RULE 13, NDRAppP
Mr. Higgins MOVED to adopt Rule 13 as proposed. Judge Burdick seconded the motion. Motion CARRIED.
SANCTIONS
The supreme court may take any appropriate action against any person failing to perform an act required by the rules or required by court order.
RULE 25, NDRAppP
Judge Burdick MOVED to amend Rule 25, line 10, by changing the word "judge" where it appears twice on that line to "justice." Mr. Higgins seconded the motion. Motion CARRIED.
Judge Murray MOVED to adopt Rule 25, NDRAppP, as amended. Judge Burdick seconded the motion. Motion CARRIED.
FILING AND SERVICE
(a) Filing. Papers required or permitted to be filed in the supreme court shall 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 may be granted by a single justice, the justice may permit the motion to be filed with him. If this occurs he shall note thereon the date of filing and shall thereafter transmit it to the clerk.
(b) Filing 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 on all other parties to the appeal or review. Service on a party represented by counsel must be made on counsel.
(c) Manner of Service. Service may be personal or by mail. Personal service includes delivery of the copy to a clerk or other responsible person at the office of counsel. Service by mail is complete on mailing.
(d) Proof of Service. Papers presented for filing must contain an acknowledgment of service
-4-
by the person served or proof of service in the form of an affidavit by the person who made service. Proof of service may appear on or be affixed to the papers filed. The clerk may permit papers to be filed without acknowledgment or proof of service but shall require acknowledgment of proof of service to be filed promptly thereafter.
RULE 28, NDRAppP
Mr. Higgins MOVED that the essence of Rule 28 be redrafted as a cross-reference to the appropriate sections of the rules pertaining to the same subject. Mr. Loder seconded the motion. Motion CARRIED.
Rule 12, NDRAppP
Mr. Higgins MOVED to adopt Rule 12, with the proposed amendments. Judge Murray seconded the motion. Motion CARRIED.
DOCKETING THE APPEAL
(a) Time for Docketing the Appeal. The appellant shall deposit the docket fee with the clerk of the trial court at the time the notice of appeal is filed. Upon receipt of the docket fee, the clerk of the supreme court shall thereupon enter the appeal upon the docket. If an appellant is authorized to prosecute the appeal without prepayment of fees or has been declared indigent by order of any court in this state for the purpose of any action relating to the appeal, the clerk shall enter the appeal upon the docket at the request of a party or at the time of filing the record. The supreme court upon motion for cause shown may enlarge the time for docketing the appeal or permit the appeal to be docketed out of time. An appeal shall be docketed under the title given to the action in the trial court, with the appellant identified as such, but if the title does not contain the name of the appellant, his name, identified as appellant, must be added to the title.
(b) Dismissal for Failure of Appellant To Docket Appeal. If the appellant fails to pay any docket fee if a docket fee is required, any appellee may file a motion in the supreme court to dismiss the appeal. The motion must be supported by a certificate of a clerk of the trial court by showing the date and substance of the judgment or order from which the appeal was taken, the date on which the notice of appeal was filed, and by proof of service. The appellant may respond within 14 days after the service. The
-5-
clerk of the supreme court shall docket the appeal for the purpose of permitting the court to entertain the motion without requiring payment of the docket fee, but the appellant is not permitted to respond without payment of the fee unless he is otherwise exempt therefrom.
RULE 12, NDRAppP - COMMENTARY
Judge Burdick MOVED to amend the commentary to Rule 12 as follows: Line 11, after the word "docket" add the word "fee"; line 12 should read "required to invoke the jurisdiction of the supreme court and nonpayment does not"; and to adopt Rule 12 as amended. Mr. Higgins seconded the motion. Motion CARRIED.
Under Rule 12(a), as amended, the docket fee must be deposited by the appellant in the trial court with the notice of appeal. The present statutory amount of the docket fee is $50.00. To eliminate administrative problems for the clerk of the trial court, a check or money order in the amount of the docket fee should be made payable to the Clerk of the Supreme Court.
It should be noted that Rule 7 requires that the bond for costs or equivalent security also be filed with the notice of appeal in civil cases.
Although payment of the docket fee is not required to invoke the jurisdiction of the supreme court and nonpayment does not affect the validity of the appeal [see Rule 3(a)], subdivision (b) asserts that the appeal may be dismissed by the supreme court if the requirements of this Rule are not followed.
The former subdivision (b), relating to filing the record, is now found in Rule 11(g). Parts of former subdivision (c) are now found in Rule 11(h).
DRAFTING
It was unanimously agreed that for drafting purposes, all numbers used in procedural rules, other than the number "one," will be in numeral form.
RULE 35, NDRAppP
Judge Burdick MOVED to amend Rule 35 as follows: Line 32, delete the words "taken by the defendant"; line 35 delete the word "defendant" and substitute the word "appellant"; and appropriate style changes. Judge Murray seconded the motion. Motion CARRIED.
-6-
Judge Burdick MOVED to adopt Rule 35, as amended. Mr. Loder seconded the motion. Motion CARRIED.
SCOPE OF REVIEW
(a) Civil Appeals; Intermediate Orders. Upon an appeal from the judgment, the supreme court may review any intermediate order or determination of the court below which involves the merits and necessarily affects the judgment appearing upon the record transmitted or returned from the trial court.
(b) Civil Appeals; Power of Court on Review. Upon an appeal from a judgment or order, the supreme court may reverse, affirm, or modify the judgment or order as to any and all of the parties, and if necessary or proper, may order a new trial of the entire cause or of some specific issue or issues, and if the appeal is from a part of the judgment or order, may reverse, affirm, or modify it as to the part appealed from. If, in the consideration of any appeal, it becomes apparent to the supreme court that some issue involved in the case has not been tried, or if tried has not been determined by the trial court, and that it is necessary or desirable to proper disposition of the case on appeal that the issue be determined, the supreme court may remand the case to the trial court for the determine of the issue, without relinquishing jurisdiction of the appeal, and the supreme court may hold the determination of the appeal in abeyance until the issue has been determined by the trial court and the determination certified to the supreme court. In that case the proceedings had and the determination made in the trial court, upon remand, are deemed part of the record on appeal in the case. In all cases the supreme court shall remit its final judgment or decision to the court from which the appeal was taken to be enforced accordingly, and if from a judgment, final judgment thereupon shall be entered in the court below in accordance therewith, except when ordered otherwise.
(c) Criminal Appeals; Intermediate Orders. Upon an appeal from a verdict or judgment, the supreme court may review any intermediate order or ruling which involves the merits or which may have affected the verdict or judgment adversely to the appellant.
(d) Criminal Appeals; Power of Court on Review. The supreme court may reverse, affirm, or modify the verdict or judgment or order appealed from, and may set aside, affirm, or modify any or all of the proceedings subsequent to or dependent upon the verdict, judgment, or order, and, if proper, may order a new trial. In either case, the action must be remanded to the trial court with proper instructions, together with the opinion of the court.
-7-
ADJOURNMENT
The meeting adjourned to 9:00 a.m., March 17, 1978.
CALL TO ORDER
The meeting was called to order at 9:00 a.m., March 17, 1978, by Justice Paul M. Sand, Chairman.
ATTENDANCE
Present:
Hon. Robert Vogel
Hon. Eugene A. Burdick
Hon. Gerald G. Glaser
Hon. Kirk Smith
Hon. Halvor L. Halvorson
Hon. William S. Murray
Mr. Jon M. Arntson
Mr. LeRoy A. Loder
Mr. David L. Peterson
Mr. Kent Higgins
RULE 39, NDRAppP
Judge Burdick MOVED to amend Rule 39 as follows: Lines 29, 30, 31, delete "sealed with the seal of the supreme court and attested as of the date when issued"; line 31, delete the word "out" and insert "upon direction"; line 32, change "or" to "for." Judge Halvorson seconded the motion. Motion CARRIED.
Judge Burdick MOVED to adopt Rule 39, NDRAppP, as amended. Judge Murray seconded the motion. Motion CARRIED.
COSTS
(a) To Whom Allowed. In all civil cases, except as otherwise provided by law, if an appeal is dismissed, costs shall be taxed against the appellant unless otherwise agreed by the parties or ordered by the court; if a judgment is affirmed, costs shall be taxed against the appellant unless otherwise ordered; if a judgment is reversed, costs shall be taxed against the appellee unless otherwise ordered; and if a judgment is affirmed or reversed in part, or is vacated, costs shall be allowed only as ordered by the court.
(b) [Reserved for future use.]
(c) [Reserved for future use.]
(d) [Reserved for future use.]
-8-
(e) Costs on Appeal in Civil Cases Taxable in the Trial Court. Costs incurred in the preparation and transmission of the record, the costs of the reporter's transcript, if necessary for the determination of the appeal, the premiums paid for costs of supersedeas bonds or other bonds to preserve rights pending appeal, the reasonable and necessary costs of preparing briefs under the rules (presumed to be one hundred dollars for appellant's brief and seventy-five dollars for appellee's brief) and the fee for filing the notice of appeal, shall be taxed in the trial court as costs of the appeal in favor of the party entitled to costs under this rule.
(f) Costs Taxable in the Supreme Court. In original proceedings before the court, costs as applicable in (e) above may be taxed by the clerk in favor of the party entitled to costs.
(g) Execution for Costs Taxable in the Supreme Court. An execution signed by the clerk of the supreme court may issue upon direction of the supreme court to enforce any judgment for costs made and entered in a case which originated in that court. The execution may issue and be directed to the marshal, or to the sheriff of any county, and may be enforced in any county in the state in which a transcript of the judgment for costs is filed and docketed.
(h) Costs on Appeal of Criminal Actions. Costs incurred in the appeal of a criminal action shall be taxed in the trial court only upon motion of a party to the appeal and order of the supreme court.
RULE 40, NDRAppP
Judge Burdick MOVED to amend Rule 40, NDRAppP, as follows: Line 2, change "fourteen" to "14"; line 21, change "shall" to "must", and to adopt Rule 40 as amended. Mr. Higgins seconded the motion. Motion CARRIED.
PETITION FOR REHEARING
(a) Time for Filing; Content; Answer; Action by Court if Granted. A petition for rehearing may be filed within 14 days after entry of judgment unless the time is shortened or enlarged by order. The petition shall state with particularity the points of law or fact which in the opinion of the petitioner the court has overlooked or misapprehended and shall contain such argument in support of the petition as the petitioner desires to present. Oral argument in support of the petition will not be permitted. No answer to a petition for rehearing will be received unless
-9-
requested by the court, but a petition for rehearing will ordinarily not be granted in the absence of such request. If a petition for rehearing is granted the court may make a final disposition of the case without reargument or may restore it to the calendar for reargument or resubmission or may make such other orders as are deemed appropriate under the circumstances of the particular case.
(b) Form of Petition; Length. The petition shall be in a form prescribed by Rule 32, and copies shall be served and filed as prescribed by Rule 31(b) for the service and filing of briefs. Except by permission of the court, a petition for rehearing must not exceed ten pages.
RULE 10, NDRAppP
Judge Burdick MOVED to substitute the following language after the word "appeal" on line 11: "If a party affected by the appeal unreasonably refuses to stipulate to exclude from the transcript portions of the record not necessary to the resolution of issues raised by the appellant, the party proposing the stipulation may apply to the trial court for an order requiring the refusing party to pay for the unnecessary portions of the transcript and reasonable attorney's fees for making the application." Mr. Higgins seconded the motion. Motion CARRIED.
Mr. Higgins MOVED to substitute the following language for the language on lines 30 through 44 of the subcommittee draft:
"If demanded by the court reporter, the appellant or a party obliged by an order of the court under subdivision (b) to pay for the transcript or a portion thereof shall advance the payment of his portion of the estimated cost of any transcript ordered, provided a written estimate of the amount and a demand for payment is served on any obligated party within 10 days after receipt of the order for transcript or an order of the trial court under subdivision (b). Failure to furnish a written estimate and make a timely demand for payment waives the right to demand advance payment. No advance payment is required if the transcript is to be paid for by the state or any agency or subdivision thereof. If any obligated party fails to make the advance payment within 10 days after service of the demand, the reporter may suspend preparation of the transcript until payment is made.
(d) Extension of Time. If the reporter is unable to complete and file the transcript within
-10-
50 days after the notice of appeal is filed, the trial court for good cause shown by the reporter or a party on the reporter's behalf, may extend the time for completion of the transcript.
"If preparation of the transcript has been suspended by the reporter to failure of any party to make a timely advance payment upon demand, the party responsible for the delay, for good cause shown, may move the trial court for an extension of time in which to file the transcript, on such terms as the court may order."
Judge Burdick seconded the motion. Motion CARRIED.
Mr. Higgins MOVED to adopt Rule 10, NDRAppP, as amended. Judge Burdick seconded the motion. Motion CARRIED.
THE RECORD ON APPEAL
(a) Composition of the Record on Appeal. The original papers and exhibits filed in the trial court, one copy of the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the trial court shall constitute the record on appeal in all cases.
(b) The Transcript; Duty of Appellant to Order; Time for Ordering. If an appeal is taken in a case in which any evidentiary hearing was held, it is the duty of the appellant to order a transcript of the proceedings. One copy must be ordered for the supreme court and one copy must be ordered for each party separately represented. The order must be served on the reporter and must be for a complete transcript of the proceedings, unless a stipulation is obtained from all affected parties specifying portions which are not required for the purposes of the appeal. If a party affected by the appeal unreasonably refuses to stipulate to exclude from the transcript portions of the record not necessary to the resolution of issues raised by the appellant, the party proposing the stipulation may apply to the trial court for an order requiring the refusing party to pay for the unnecessary portions of the transcript and reasonable attorney's fees for making the application. Proof of service of the order for transcript and a copy of the stipulation of excluded portions, if applicable, must be filed with the clerk of the trial court with the notice of appeal. A party shall include in his order for transcript the following information:
1. Caption of the case;
2. Date or dates of trial;
-11-
3. Number of copies required; and
4. Names and addresses of the parties to be served with copies.
(c) Time for Furnishing Transcript; Filing of Transcript; Financial Arrangements. The transcript must be completed within 50 days after the notice of appeal is filed unless the court reporter applies for and receives an extension of time under subdivision (d). The reporter shall file one copy of the transcript and proof of service of the other copies of the transcript with the clerk of the supreme court. The other copies shall be served upon parties designated in the order for transcript.
If demanded by the court reporter, the appellant or a party obliged by an order of the court under subdivision (b) to pay for the transcript or a portion thereof shall advance the payment of his portion of the estimated cost of any transcript ordered, provided a written estimate of the amount and a demand for payment is served on any obligated party within 10 days after receipt of the order for transcript or an order of the trial court under subdivision (b). Failure to furnish a written estimate and make a timely demand for payment waives the right to demand advance payment. No advance payment is required if the transcript is to be paid for by the state or any agency or subdivision thereof. If any obligated party fails to make the advance payment within 10 days after service of the demand, the reporter may suspend preparation of the transcript until payment is made.
(d) Extension of Time. If the reporter is unable to complete and file the transcript within 50 days after the notice of appeal is filed, the trial court for good cause shown by the reporter or a party on behalf of the reporter may extend the time for completion of the transcript.
If preparation of the transcript has been suspended by the reporter for failure of any party to make a timely advance payment upon demand, the party responsible for the delay, for good cause shown, may move the trial court for an extension of time in which to file the transcript, on such terms as the court may order.
A request for extension must be made within the time originally prescribed or within an extension previously granted, but the trial court shall not extend the time to more than ninety days from the date of the filing of the first notice of appeal. If the trial court is without authority to grant the relief sought or has denied a request therefor, the
-12-
supreme court may on motion for good cause shown extend the time for completion of the transcript to be filed after the expiration of the time allowed or fixed. If the request for extension of time for completion of the transcript has been previously denied, the motion must set forth the denial and must state the reasons therefor, if any were given.
(e) Form of Transcript. Each transcript must conform to the requirements of Rule 32, but carbon copies are permitted. In addition, the lines must be numbered on the left margin, and each page must contain not more than 28 nor fewer than 25 lines, with a margin on the left of not less than 1 ½ inches. Each transcript must have a complete index stating therein where may be found the exhibits, accurately described, the examination of each of the witnesses, and the orders and proceedings of the trial court. The transcript may be prepared by any competent typist, but the transcript must be examined and certified by the reporter who took the transcription.
(f) Statement of the Evidence or Proceedings If No Verbatim Record Was Made or Transcript is Unavailable. If no verbatim record of the evidence or proceedings at a hearing or trial was made or a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement must be served on the appellee, who may serve objections or propose amendments thereto within 10 days after service. Thereupon the statement and any objections or proposed amendments must be submitted to the trial court for settlement and approval and, as settled and approved, must be filed with the clerk of the supreme court by the appellant within 60 days after the notice of appeal is filed.
(g) Agreed Statement as the Record on Appeal. In lieu of the record on appeal as defined in subdivision (a), the parties may prepare and sign the statement of the case showing how the issues presented by the appeal arose and were decided in the trial court and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the issues presented. If the statement conforms to the truth, it, together with any additions the trial court may consider necessary to present the issues raised by the appeal, shall be approved by the trial court and then shall be certified to the supreme court as the record on appeal and transmitted thereto by the clerk of the trial court within the time provided by Rule 11.
-13-
(h) Correction or Modification of the Record. If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the trial court either before or after the record is transmitted to the supreme court, or the supreme court, on proper suggestion or of its own initiative, may direct that the omission or misstatement be correct, and, if necessary, that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the supreme court.
RULE 11, NDRAppP
Justice Vogel MOVED to adopt Rule 11, as amended. Mr. Higgins seconded the motion. Motion CARRIED.
TRANSMISSION AND FILING OF THE RECORD
(a) Time for Transmission; Duty of Appellant. The clerk of the trial court shall transmit the exhibits necessary for the determination of the appeal and the record on appeal, excluding the transcript, to the supreme court not less than 25 or more than 30 days after the filing of the notice of appeal unless otherwise directed by the supreme court or a party or reporter pursuant to subdivision (d). After filing the notice of appeal the appellant shall take any action necessary to expedite the assembly and transmission of the record. If more than one appeal is taken, a single record must be transmitted within the period above stated.
(b) Method of Transmitting the Record Excluding the Transcript. The clerk of the trial court shall number the documents comprising the record and shall transmit with the record a list of the documents correspondingly numbered and identified with reasonable definiteness. Documents of unusual bulk or weight and physical exhibits other than documents shall not be transmitted by the clerk unless he is directed to do so by a party or by the clerk of the supreme court. A party shall make advance arrangements with the clerk for the transportation and receipt of exhibits of unusual bulk or weight.
Transmission of the record is effected when the clerk of the trial court mails or otherwise
-14-
forwards the record to the clerk of the supreme court. The clerk of the trial court shall indicate, by endorsement on the face of the record or otherwise, the date upon which it is transmitted to the supreme court.
(c) Temporary Retention of Record in Trial Court for Use in Preparing Briefs and Transcript. A party or reporter may retain the record in the trial court by sending written request to the clerk of the trial court within the time stated in subdivision (a) for transmission of the record. Copies of the request must be sent to all counsel of record and to the clerk of the supreme court. If the record is retained by a party under this subdivision, the appellant, upon receipt of the brief of the appellee, shall request the clerk of the trial court to transmit the record, unless transmission of the record at an earlier time is agreed upon by the parties or directed by the supreme court. If the record is retained by the reporter under this subdivision, the reporter, upon the filing of the transcript, shall request the clerk of the trial court to transmit the record, unless transmission of the record at an earlier time is directed by the supreme court.
(d) Retention of the Record in the Trial Court by Order of Court. The supreme court may provide by rule or order that a certified copy of the docket entries shall be transmitted in lieu of the entire record, subject to the right of any party to request at any time during the pendency of the appeal that designated parts of the record be transmitted.
If the record or any part thereof is required in the trial court for use there pending the appeal, the trial court may make an order to that effect, and the clerk of the trial court shall retain the record or parts thereof subject to the request of the supreme court, and shall transmit a copy of the order and of the docket entries together with those parts of the record the trial court allows and copies of those parts the parties designate.
(e) Stipulation of Parties That Parts of the Record Be Retained in the Trial Court. The parties may agree by written stipulation filed in the trial court that designated parts of the record shall be retained in the trial court unless thereafter the supreme court orders or any party requests their transmittal. The parts thus designated shall nevertheless be a part of the record on appeal for all purposes.
-15-
(f) Record for Preliminary Hearing in the Supreme Court. If before the record is transmitted a party desires to make in the supreme court a motion for dismissal, for release, for a stay pending appeal, for additional security on the bond on appeal or on a supersedeas bond, or for any intermediate order, the clerk of the trial court at the request of any party shall transmit to the supreme court those parts of the record any party designates.
(g) Filing of the Record. Upon receipt of the record or of parts of the record authorized to be filed under the provisions of subdivision (d) by the clerk of the supreme court following timely transmittal, and after the appeal has been docketed, the clerk shall file the record. The clerk shall give notice immediately to all parties of the date on which the record was filed.
(h) Dismissal for Failure of Appellant to Cause Timely Transmission. If the appellant fails to cause timely transmission of the record, any appellee may file a motion in the supreme court to dismiss the appeal. The motion must be supported by a certificate of the clerk of the trial court showing the date and substance of the judgment or order from which the appeal was taken, the date on which the notice of appeal was filed, the expiration date of any order or request extending the time for transmitting the record, and by proof of service. The appellant may respond within 14 days after service on him.
NEXT MEETING
The next meeting of the Joint Procedure Committee will be held on Thursday, May 25, 1978, at 1:00 p.m., and continue all day Friday, May 26, 1978.
RULE 42, NDRAppP
Judge Burdick MOVED to adopt Rule 42, NDRAppP, as amended. Judge Halvorson seconded the motion. Motion CARRIED.
VOLUNTARY DISMISSAL
If the parties to an appeal or other proceeding shall sign and file with the clerk of the supreme court an agreement that the proceeding be dismissed, specifying the terms as to payment of costs, and shall pay whatever fees are due, the clerk shall enter the case dismissed, but no mandate or other process shall issue without an order of the court. An appeal may be dismissed on motion of the appellant on such terms as may be agreed upon by the parties or fixed by the court.
-16-
RULE 23.1, NDRCrimP
Mr. Higgins MOVED to amend Rule 23.1, as follows: Line 1, change "costs" to "expense"; change, "shall" to "may"; and to adopt Rule 23.1, as amended. Judge Murray seconded the motion. Motion CARRIED.
The expense of a jury may not be assessed as costs in a criminal case.
RULE 23.1, NDRCrimP - COMMENTARY
Mr. Higgins MOVED to adopt the commentary to Rule 23.1 with the following amendments: Line 2, change "costs" to "expense"; line 4, change "costs" to "expense". Judge Burdick seconded the motion. Motion CARRIED.
This rule is intended to assure defendants in a criminal case that the assessment of jury expense need not be a factor in deciding whether a trial by jury should be demanded. The assessment of jury expense in a criminal case may tend to "chill" the constitutional right to a jury trial.
RULE 38(a), NDRCrimP, and RULE 8(c), NDRAppP
Mr. Higgins MOVED to amend Rule 8(c)(2) to read as follows: "A sentence of imprisonment shall be stayed if an appeal is taken and the defendant is admitted to bail or released on his own recognizance." There was no seconding motion.
Mr. Peterson MOVED to delete Rule 8(c)(2), NDRAppP. There was no seconding motion.
Mr. Higgins MOVED to amend Rule 8(c)(2), NDRAppP, to read as follows: "A sentence of imprisonment shall be stayed as provided under the conditions provided by Rule 38(a)(2), NDRCrimP." Judge Smith seconded the motion. Motion CARRIED.
Mr. Higgins MOVED to reconsider the previous action on Rule 8(c). Judge Smith seconded the motion. Motion CARRIED.
Mr. Higgins MOVED to amend Rule 8(c), NDRAppP, to read as follows:
Stays of Execution in Criminal Cases. Stays of execution in criminal cases shall be had in accordance with the provisions of Rule 38(a), North Dakota Rules of Criminal Procedure.
Judge Smith seconded the motion. Motion CARRIED.
Mr. Higgins MOVED to adopt Rule 8(c) as amended. Judge Smith seconded the motion. Motion CARRIED.
-17-
RULE 38(a)(2), NDRCrimP
Judge Burdick MOVED to amend Rule 38(a)(2) to read:
A sentence of imprisonment is stayed if an appeal is taken and the defendant is released pending disposition of the appeal pursuant to Rule 9(b), North Dakota Rules of Appellate Procedure.
Mr. Higgins seconded the motion. Motion CARRIED.
RULE 38(a)(4), NDRCrimP
Judge Burdick MOVED to delete the second sentence of Rule 38(a)(4). Mr. Higgins seconded the motion. Motion CARRIED.
Judge Burdick MOVED to adopt Rule 38 as amended. Mr. Higgins seconded the motion. Motion CARRIED.
STAY OF EXECUTION
AND RELIEF PENDING REVIEW
(a) Stay of Execution
(1) Death.
A sentence of death shall be stayed pending the determination of any appeal or other review by an appropriate court of this State.
(2) Imprisonment.
A sentence of imprisonment is stayed if an appeal is taken and the defendant is released pending disposition of the appeal pursuant to Rule 9(b), North Dakota Rules of Appellate Procedure.
(3) Fine.
A sentence to pay a fine or a fine and costs, if an appeal is taken, may be stayed by the trial court upon such terms as the court deems proper. The trial court may require the defendant pending appeal to deposit the whole or any part of the fine and costs with the clerk, or to give bond for the payment thereof, or to submit to an examination of assets, and it may make any appropriate order to restrain the defendant from dissipating his assets.
(4) Probation.
An order placing the defendant on probation may be stayed if an appeal is taken. If the order is stayed the court shall fix the terms of the stay.
-18-
RULES 3 and 4, NDRCivP
Judge Burdick MOVED to defer action on Rules 3 and 4. Mr. Peterson seconded the motion. Motion CARRIED.
Judge Smith suggested that the Bar Association be polled as to whether to adopt the federal rule, stay with the present system, or adopt a rule stating that the complaint must be filed within X number of days after service of the summons.
RULE IV, Rules of Court for the District Courts
Mr. Loder MOVED to defer action, and survey the Bar as to their wishes. Mr. Higgins seconded the motion. Motion CARRIED.
SECTION 27-05-07, NDCC
Justice Vogel MOVED to amend the commentary to Rule 77, NDRCivP, and supersede § 27-05-07, NDCC. Judge Burdick seconded the motion. Motion CARRIED
RECESS
The Committee recessed to 1:00 p.m., Friday, March 17, 1978.
CALL TO ORDER
The meeting was called to order at 1:00 p.m., Friday, March 17, 1978, by Justice Paul M. Sand, Chairman.
ATTENDANCE
Present:
Hon. Robert Vogel
Hon. Eugene A. Burdick
Hon. Gerald G. Glaser
Hon. Halvor L. Halvorson
Hon. William S. Murray
Mr. Jon M. Arntson
Mr. LeRoy A. Loder
Mr. Kent Higgins
RULE 47, NDRCivP
Judge Burdick MOVED to re-draft Rule 47(b) to provide for six peremptories in a 12-person jury and 3 peremptories in a 6-person jury. Mr. Loder seconded the motion. Motion CARRIED.
-19-
RULE 47, NDRCivP
Mr. Loder MOVED to adopt Rule 47, NDRCivP, as amended. Judge Burdick seconded the motion. Motion CARRIED.
JURORS
(a) Examination of Jurors. The trial judge, at his option, may conduct any general examination of prospective jurors he deems proper, but any examination by the trial judge does not in any manner limit the right of the parties or their attorneys to conduct the examination. If the examination is not conducted by the judge it shall be conducted by the parties or by their counsel.
(b) Peremptory Challenges. Each side is entitled to 6 peremptory challenges in a 12-person jury and 3 peremptory challenges in a 6-person jury. If a side consists of more than one party, that side is entitled to a total of 6 peremptory challenges in a 12-person jury and 3 peremptory challenges in a 6-person jury. The parties must join in the challenge before it can be made unless the trial judge, for good cause shown, permits otherwise. If parties on a side have essentially adverse or antagonistic interests the trial judge, in his discretion, may grant the parties on that side additional peremptory challenges. If no peremptory challenges are taken until the panel is full, they must be taken by the parties alternately, commencing with the plaintiff; but a waiver as to the jurors then impaneled is not a waiver of the right to challenge jurors subsequently impaneled.
(c) Challenges for Cause. If the trial judge, after examination of any jurors by himself or either side, is of the opinion that grounds for challenge for cause are present, the judge should excuse that jurors from the trial of the case. If the judge does not excuse a juror, any party may challenge the juror for cause as provided by law.
(d) Alternate Jurors. The court may direct that one or two jurors in addition to the regular panel be called and impaneled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the principal jurors. An alternate juror who does not replace a principal juror shall be discharged after the jury
-20-
retires to consider its verdict. If one or two alternate jurors are called each party is entitled to one peremptory challenge in addition to those otherwise allowed by this rule. The additional peremptory challenge may be used only against an alternate juror, and the other peremptory challenges allowed by this rule shall not be used against the alternates.
RULES OF CRIMINAL PROCEDURE
Mr. Higgins MOVED that the balance of the agenda, which was to be a consideration of proposed amendments incorporated in the memorandum on Rules of Criminal Procedure and the question of re-drafting the criminal rules be deferred to the next meeting. Mr. Arntson seconded the motion. Motion CARRIED.
RULE 4, NDRCrimP
Mr. Higgins MOVED to amend the present rule by amending the language shown underlined, so that Rule 4(a)(2) would read: "A summons may issue in lieu of a warrant if the magistrate has reason to believe that the defendant will appear in response to it, if the defendant is a corporation, or upon request of the prosecuting attorney." Justice Vogel seconded the motion. Motion CARRIED.
Judge Glaser MOVED to rescind the amendment and use the original language, and therefore make no change in the rule. Mr. Higgins seconded the motion. Motion CARRIED.
RULE 11(b)(5), NDRCrimP
Mr. Higgins MOVED to adopt the suggested amendment, as follows: "If the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceeding against him and, if necessary, one will be appointed to represent him; and". Mr. Arntson seconded the motion. Motion CARRIED.
RULE 11(b)(6), NDRCrimP
Judge Glaser MOVED to delete the proposed subsection (b)(6). Judge Burdick seconded the motion. Motion CARRIED.
RULE 11(d)(1), NDRCrimP
Judge Glaser MOVED to adopt the following suggested amendment on line 44: "or the defendant when acting pro se,". Mr. Higgins seconded the motion. Motion CARRIED.
ADJOURNMENT
Mr. Higgins MOVED that the meeting adjourn. Judge Glaser seconded the motion. Motion CARRIED.
________________________
Secretary