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Joint Procedure Committee Meeting

Scheduled on Thursday, March 24, 1988 @ 9:00 AM

MINUTES OF MEETING

Joint Procedure Committee

March 24-25, 1988

CALL TO ORDER

The meeting was called to order at 9:00 a.m., March 24, 1988, by Justice H. F. "Sparky" Gierke, Chairman.

ATTENDANCE

Present:

Hon. Gerald Glaser
Hon. Ronald Hilden
Hon. Lawrence Leclerc
Hon. Kirk Smith
Professor Larry Kraft
Mr. James Lamb
Mr. Ronald McLean
Mr. David Peterson
Ms. Cathy Howe Schmitz

Absent:

Hon. Wallace Berning
Hon. Eugene Burdick
Hon. Frank Kosanda
Hon. Beryl Levine
Hon. James O'Keefe
Mr. Arne Boyum, Jr. (Resignation tendered)
Mr. Leonard Bucklin
Mr. Robert Heinley
Mr. Dwight Kautzmann
Mr. LeRoy Loder

Staff:

DeNae Kautzmann, Staff Attorney
Sandy Demianew, Secretary

APPROVAL OF MINUTES

Mr. Peterson MOVED that the Minutes of the Joint Procedure Committee meeting of December 3, 1987, be approved as submitted. Professor Kraft seconded the motion. Motion CARRIED.

CHILD HEARSAY EXCEPTION -

PROPOSED RULE 803(24)(25), NDREv

This rule would provide for a hearsay exception for child victims of sexual abuse to be included within Rule 803, NDREv. The Committee questioned subsection (24) (a) which provides that an out of court statement by a child under the age of 12 regarding sexual abuse is admissible as evidence if the child is available to testify in court. The question that the Committee raised was that if the child was available can the defense still call the child to the stand. Judge Smith pointed out that the term "abuse" on line 18, page 19 of the meeting materials should read alleged abuse. The Committee then discussed the Iowa case which has been appealed to the United States Supreme Court concerning this issue. Mr. Lamb indicated that he felt that we should not take any action concerning this issue until the Supreme Court has handed down a decision.

Justice Gierke indicated to the Committee that something needs to be done before the Legislature meets in 1989. Judge Smith pointed out that we could meet with the legislative committee that would be dealing with this topic and indicate to them that the United States Supreme Court will be ruling on this issue.

Judge Smith pointed out that the problem is that when social services speaks with the child they believe what the child says and then they become an advocate for the child rather than a witness. What the social workers want is to substitute the child's statement with their own and this has caused them to lose cases that are currently being tried. Judge Glaser pointed out that social workers are being sued for not stopping any abuse that is alleged to be occurring and then this in turn forces them to perceive what the child is telling them to be true.

Ms. Schmitz questioned whether under subdivision (24)(b) if a separate hearing would be needed in order to determine if the hearsay would be allowed. Judge Leclerc indicated that it would and the Committee agreed with him. Judge Glaser stated that the Governor's Commission on Victims and Witnesses gave us very little information concerning this issue and pointed out that very little research has been done in this area. In fact, Tara Muhlhauser told us at our last meeting that there is little or no research information on whether children are more traumatized than any other witness. Judge Glaser fears that the public is being stampeded into

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believing that there is a problem and he does not know whether the assertions that are being made concerning children that are victims and witnesses are fundamentally correct. Judge Smith indicated that he feels that the advocates for the children believe that they are the ones to ascertain the truth in their office rather than in the trial court. He questioned whether this hearsay exception is needed because the courts provide adequate safeguards so that a child is not harassed.

Mr. Peterson indicated that the Committee has held this discussion before. He stated that at the last meeting he had made a motion to kill the proposal but the Committee decided to draft a new proposed rule which was patterned after the Utah statute. He indicated the public perceives this differently than what the Committee does and therefore we need to take a look at the proposed rule or to kill it. Mr. Lamb indicated that the Committee has only heard from one segment of the public. Mr. Peterson indicated that that was not true. The Governor's Commission was composed of members from all walks of life. Committee members heard testimony from the public and based on their work determined that something needed to be done. Dick Gross told the Committee two meetings ago very bluntly that if the Committee does not do something he would personally draft legislation and guaranteed that it would sail through the Legislature.

Judge Leclerc and Judge Smith both agreed that they do not see that children are any more traumatized than adults. Judge Smith indicated that he has been on the bench for 25 years and has not seen any problem.

Mr. McLean stated that we do make special concessions for children in divorce cases and he fails to see how a child cannot be traumatized in a criminal case. If we help the child in family law cases why not help them in other cases? Judge Glaser explained that in a family law situation the child is in the middle of two parents. The child is kept separate with the assurance that the parents do not know what the child is saying. Mr. Peterson indicated that in abuse cases often times a parent or step-parent is involved. Judge Smith stated that in these cases a wife almost always sides with the husband. This is why social services is becoming the advocates for the children. Because of this position, they lose their objectivity and it appears to him that they want the court to lose their objectivity also. There are plenty of safeguards that the court can use to protect

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the child. The judge is there to watch and to make sure that the child is not harassed which is much better than having the Legislature come out and say to the courts, "Do it this way." He believes that this hearsay exception is designed for conviction and is not designed to ascertain truth.

Judge Glaser indicated that our problem now is not to question what the rule will say but rather if there is a need. The need is only perceived at this point. It is inherently unfair to the defendant and therefore the question is whether this need is real enough since it will hurt the defendant.

At this point, Mr. Peterson and Judge Hilden explained what the Governor's Commission on Victims and Witnesses did, what they accomplished and that there were three subcommittees that worked on the project. Judge Hilden admitted that all non-lawyer members of the Committee seemed to want to bring the guilty party in, have a fair trial, and then hang the guilty party. He stated that legislators would not be opposed to this type of legislation because if they wouldn't support it, it would be like saying that they are for child abuse.

Mr. Peterson MOVED to amend the rule and to approve it as amended as follows: on line 6, to insert a semicolon after the word "if"; to delete lines 7-11; to delete on line 13 "evidence under this exception" and the word "shall"; on line 14, to add an "s" to the word "determine" and to delete the word "whether" and insert in lieu thereof the word "that"; on line 17, to delete ", the nature and duration of"; to delete line 18 and to delete the word "offender," on line 19, all appearing on page 19 of the meeting materials. The motion was seconded by Judge Hilden.

Judge Leclerc indicated that the Committee has simply redesigned the proposed rule and he questioned whether this rule would cause him to violate the Judicial Rules of Conduct as it may be a disputed political issue. No one felt that this would violate the Rules.

Judge Hilden indicated that the admission of any statement would still be discretionary with the judge under the amended proposed rule. He felt that the proposed rule would stop the public clamor in getting a rule adopted.

Mr. Peterson added an additional amendment with the approval of the second. On line 13, after the word "judge" to insert the following phrase: "in

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advance of trial". Ms. Schmitz questioned whether "after notice of hearing" would be better rather than "in advance of trial." Judge Smith did not think that admissibility should be decided in advance of trial. Judge Glaser did not think that the admissibility ruling would be appealable under Section 29-28-07, NDCC, as it is simply a ruling on evidence. The Committee discussed this issue extensively.

To refresh the Committee members' memory, Mr. Peterson re-read his motion concerning the amendment to proposed Rule 803. Mr. Lamb MOVED to delete the last sentence of Rule 803(24). Mr. McLean seconded the motion. Motion CARRIED. Judge Smith MOVED to delete on line 2 the following phrase: "Notwithstanding any other rule of evidence," and on line 6 to delete the words "an existing" and insert in lieu thereof the word "another". Mr. McLean seconded the motion. Motion CARRIED.

Ms. Schmitz MOVED to delete on line 13 the following phrase "in advance of trial" and to insert in lieu thereof "after notice of hearing". Judge Smith seconded the motion. The Committee discussed the proposed amendments and felt that it would not solve the problem of getting an advance ruling on the admissibility of the statement. Judge Smith suggested the following language: "after notice of hearing in advance of trial of the issue". Ms. Schmitz accepted the amendment into her motion. Motion CARRIED.

The Committee then voted on the original motion by Mr. Peterson which amended Rule 803 and called for approval of proposed Rule 803 as amended. The motion CARRIED. Judge Leclerc wished to have his vote recorded as no.

RULE 803. HEARSAY EXCEPTIONS; AVAILABILITY OF

DECLARANT IMMATERIAL

(24) Statement of Child Regarding Sexual Abuse. An out-of-court statement by a child under the age of 12 years regarding sexual abuse of that child is admissible as evidence though it does not qualify under another hearsay exception, if;

Prior to admission of any statement the judge, after notice of hearing in advance of trial of the issue, determines that the interests of justice will best be served by admission of that statement. In making this determination, the judge must consider the age and maturity of the child and the reliability of the assertion and of the child.

(24) (25) Other Exceptions. A statement not specifically covered by any of the foregoing

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exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (i) the statement is offered as evidence of a material fact; (ii) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (iii) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a A statement may not be admitted under this exception unless the proponent of it makes known to the adverse party and to the court in writing sufficiently in advance of its offer in evidence to provide the adverse party with a fair opportunity to prepare to meet it, his the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.

VIDEOTAPED DEPOSITIONS

At the last meeting, the Committee requested staff counsel to draft a new subsection to Rule 15, NDRCrimP, which would address videotaped depositions of minor victims or witnesses of a sexual offense.

Mr. Peterson MOVED to disapprove proposed Rule 15(k) and to approve new language to be inserted at the beginning of Rule 15(a) as follows: that after the word "deposition" to insert the phrase "including audio-visual depositions taken as provided in Rule 30.1 of the civil rules". Judge Smith seconded the motion.

Mr. Peterson indicated that he felt that Rule 15 allowed videotaped depositions and that the proposed subsection was unnecessary. Judge Leclerc disagreed with Mr. Peterson and indicated that videotape is not included in Rule 15 and that perhaps videotaped depositions should be referred to in the explanatory note. However the new language inserted in Rule 15(a) would clearly allow for videotaped depositions. Motion CARRIED.

Mr. Lamb MOVED that the explanatory note be amended to indicate what the Committee did and why. That the amendment was made to protect minor victims or witnesses of sexual offenses. Seconded by Ms. Schmitz. Motion CARRIED.

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RULE 15. DEPOSITIONS

(a) When Taken. At any time after the defendant has appeared, any party may take the testimony of any person by deposition including audio-visual depositions taken as provided in Rule 30.1 of the civilrules, except:

(1)The defendant may not be deposed unless he the defendantconsents and his the defendant's lawyer, if he the defendant has one, is present or his the defendant waives the lawyer's presence is waived;

(2) * * *

(3) * * *

(4) * * *

Attendance of witnesses and production of documentary evidence and objects may be compelled by subpoena under Rule 17.

RULE 3.2, NDROC

The past minutes and meeting materials relating to Rule 3.2 reflect that the rule was patterned after Rule 5 of the Local Rules, Federal District Court, District of North Dakota. There have been many questions relating to Rule 3.2. One of the most prevalent is whether a request for hearing must be granted. Judge Glaser pointed out another problem under subdivision (d) of the current rule, that if a person requests the taking of testimony whether a brief must still be filed.

Judge Glaser pointed out that on page 26 of the meeting materials in subdivision (b) of the proposed rule, the filing of the answer papers has not been addressed.

The Committee first addressed subdivision (a). Mr. Peterson indicated that on lines 16-17, page 25 of the meeting materials, that he did not like the filing of the brief five days after the filing of the motion. He believes that when the motion is filed, the briefs should be filed with it. He suggested overstriking on lines 35-36, ", with the consent of all parties affected," and to overstrike on lines 29-35 "If any party requests the taking of testimony or oral argument, the procedures under the rules for obtaining a hearsay must be followed, unless otherwise ordered by the court. The court, in its discretion, may require the taking of testimony or oral argument. Each motion must be heard at a time designated by the court." and inserting in lieu thereof "If any party

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requests the taking of testimony or oral argument, that request shall be granted and that party is responsible for securing a hearing date."

Judge Glaser pointed out that there is a problem with returns not being made. An answer brief is not a return. We need to have a return to motion or a resistance to motion. It was pointed out that Rule 56(e) indicates that a return is an affidavit or brief.

Mr. Peterson MOVED to approve subsection (a) with the amendments he suggested. Judge Smith seconded the motion. Mr. Lamb MOVED that on lines 16-17, the following language "or within 5 days thereafter," be retained as new language to proposed Rule 3.2. Mr. McLean seconded the motion. Motion CARRIED.

Professor Kraft suggested that maybe we should separate the procedure for motions on briefs and the procedure for motions that are orally argued.

RECESS

The meeting was recessed until 1:00 p.m., March 24, 1988.

CALL TO ORDER

The meeting was called to order at 1:00 p.m., March 24, 1988, by Justice H. F. "Sparky" Gierke, Chairman. The attendance remained the same as in the morning session.

RULE 3.2 continued

Judge Glaser suggested that the sentence appearing on lines 29-32 of page 26 of the meeting materials be deleted as it does not add anything to the rule. Mr. Peterson indicated that he felt that it was in the rule so that lawyers know that they have to get the notice out, etc. Here we are talking about local procedures.

Mr. Lamb indicated that the reason for the five day allowance to file a brief under the Federal District local rule was that there were times when a motion was put in before a lawyer had the time to brief it. Judge Glaser stated that we have to bear in mind the thrust of the rule, that there is no hearing and that if there is a hearing it is discretionary

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with the judge. A new amendment was proposed to overstrike on lines 29-32 "If any party requests the taking of testimony or oral argument, the procedures under the rules for obtaining a hearing must be followed, unless otherwise ordered by the court." and to insert in lieu thereof "If any party requests oral argument on a motion, such request shall be granted."; on line 32, insert "the court may,"; on line 33 overstrike the words "may require" and the word "or" and insert "if requested" after "testimony"; on line 34, insert "and may require" before the word "oral" and insert "The party making the request shall secure a time for hearing and serve notice on all other parties. The court may hear oral argument on any motion by telephonic conference." after the word "argument"; to overstrike line 34 after the word "argument"; and to overstrike lines 35-37.

Judge Glaser asked when this request would have to be made. Mr. Peterson suggested that perhaps we could put a time line in and add after "such request shall be granted" the following: "Such request must be made within 5 days after the time has expired for filing briefs." and to delete the new language on lines 28-29.

Professor Kraft suggested that the title to 3.2(a) be "Submission of Motion". The Committee agreed.

The Committee's proposed new language of 3.2(a) begins at line 28: "If any party requests oral argument on a motion, such request shall be granted. Such request must be made within 5 days after the time has expired for filing briefs. The party making the request shall secure a time for hearing and serve notice on all other parties. The court may, in its discretion, allow the taking of testimony if requested and may require oral argument. The court may hear oral argument on any motion by telephonic conference."

The Committee then questioned language appearing on line 23, page 25 of the meeting materials. The Committee proposed that the following language be inserted: "The motion is deemed submitted to the court unless". After further discussion, Mr. Peterson and Ms. Kautzmann were asked to submit re-writes of Rule 3.2 for the Committee to consider tomorrow morning.

The Committee moved on to 3.2(b). The Committee felt that (b) seems to be addressed by subdivision (a). Ms. Schmitz MOVED to delete proposed

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subdivision (b). Mr. Lamb seconded the motion. Motion CARRIED.

The Committee then considered proposed Rule 3.2(c) regarding summary judgments. Ms. Schmitz MOVED to delete the proposed language in subdivision (c) and to insert in lieu thereof "The provisions of Rule 3.2 shall not be construed to supersede the provisions of Rule 12, 55, 56, 57 or 81, NDRCivP." Judge Smith seconded the motion.

Professor Kraft asked to go back to subdivision (a). His question is why have "unless otherwise ordered by the court" in subdivision (a). He wondered whether the amendment was necessary since Rule 6(d) says the time for motions does not apply if a different time period is fixed by the rules.

The Committee decided that rather than carving these rules out in subdivision (c) that the rules be amended so that they do not conflict with Rule 3.2. Staff was instructed to list the rules and time frames for motions or applications for relief that conflict with Rule 3.2 and to bring the list to the Committee at the next meeting. The Committee then will decide which ones should be excepted in subdivision (c).

Mr. Lamb MOVED to table Rule 3.2 until the next meeting. Judge Hilden seconded the motion. Motion CARRIED.

CONTEMPT

The proposed legislation for contempt has been patterned after Wisconsin state statutes. Wisconsin does not attempt to draw a distinction between civil and criminal contempt. Rather the distinction is drawn between the purpose of the sanction sought to be imposed and the procedures to be followed depend upon the sanction sought. It is believed that this approach will eliminate most of the confusion that has previously existed in the law of contempt. This approach should provide a clearer and certain basis for determining which sanction to seek and specify the procedures to be followed depending upon the sanctions sought. Judge Smith indicated that civil contempt is a continuing contempt whereas criminal contempt involves the authority of the court.

Mr. Lamb questioned whether this issue could be addressed by rule rather than by legislation. He

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also pointed out that there are 2 recent North Dakota Supreme Court cases dealing with contempt.

The proposed rule also deletes the terms "direct" and "indirect" contempt. Judge Glaser pointed out that he likes the proposed legislation because it handles contempt by way of sanction. The Committee questioned whether the changes that would be made to Section 27-10.1 would cause Section 12.1-10.1 to be repealed. The answer was in the affirmative. The Committee also discussed the effect that the proposed legislation would have on Rule 42 of the North Dakota Rules of Criminal Procedure. The Committee then questioned whether criminal contempt is a crime; if so, perhaps a statute should address it rather than a rule.

Judge Hilden MOVED to table discussion on the proposed legislation regarding contempt until tomorrow morning so that staff counsel can obtain copies of the two recent Supreme Court decisions dealing with contempt for the Committee to review. Mr. Lamb seconded the motion. Motion CARRIED.

JUDGMENT AND DECREE FORMS

Judge Glaser pointed out that he had a problem with the form because it did not have a judgment contained within it. He questioned whether the conclusions of law constitute the judgment. Maybe there should be a section in the form indicating what the judgment is. He did not believe that it was a sound idea to have the conclusions of law constituting the judgment and decree. He also questioned the determination that the conclusions of law constitute the judgment and decree of the court being made by the clerk of district court. The Committee also discussed the caption form that was used. Judge Leclerc MOVED to table this matter indefinitely. Judge Smith seconded the motion. Motion CARRIED.

CRIMINAL JUDGMENT AND COMMITMENT FORMS

The criminal judgment and commitment forms contained within the meeting materials were amended since the last meeting and sent out for Committee response. Based on the response that was received from the Committee members and also from the presiding judges, the amendments were made and thereafter the forms were sent to West Publishing Company so that the forms would be contained in the 1988 Edition of the North Dakota Court Rules Manual.

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EXPLANATORY NOTES TO EVIDENCE RULES AMENDED AT

DECEMBER 1987 MEETING

Judge Leclerc MOVED to approve all the explanatory notes to the Rules of Evidence. Staff counsel pointed out to the Committee that Judge Burdick presented style changes to the Rules and many of the changes were incorporated into the rules. The style changes were available for Committee members to review. Mr. Lamb seconded the motion. Motion CARRIED.

LOCAL RULE NO. 3

Judge Leclerc MOVED to place at the beginning of the agenda Local Rule 3 of the East Central Judicial District. Mr. McLean seconded the motion. Motion CARRIED. Justice Gierke pointed out that approval by the Joint Procedure Committee is not necessary for this to continue as a local rule. The Committee has three courses of action: 1. to recommend to the Supreme Court that it be approved as a local rule; 2. to recommend to the Supreme Court that the rule not be allowed as a local rule; 3. to recommend to the Supreme Court that the local rule be adopted as a statewide rule.

NATIONAL CONFERENCE ON FEDERAL RULES OF

CIVIL PROCEDURE

The Committee received as Handout #1 a letter regarding a National Conference that will be held in Cambridge, Massachusetts on the occasion of the 50th Anniversary of the Federal Rules of Civil Procedure on October 7-8, 1988. Justice Gierke indicated that if anyone wishes to attend this conference to let him know tomorrow morning.

RECESS

The meeting was recessed until 9:00 a.m., March 25, 1988.

CALL TO ORDER

The meeting was called to order at 9:00 a.m., March 25, 1988, by Justice H. F. "Sparky" Gierke, Chairman. The attendance remained the same as the March 24 session except David Peterson was absent.

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LOCAL RULE NO. 3

Judge Leclerc explained the reason why the East Central Judicial District adopted Local Rule 3 concerning plea agreements. (Handout #2) He feels that the rule is cleaner. The state's attorney recommends it, the federal courts use this procedure as does the State of Minnesota. He believes it accomplishes a lot of different things including the promotion of discussion between the defendant and the attorney. It eliminates the defendant getting up and indicating that he did not know what the agreement meant. The Committee pointed out to Judge Leclerc that perhaps the language should be changed. The Committee had a problem with the term "sentencing" and "presiding" judge.

Judge Hilden indicated that he did not feel that this rule should be a statewide rule but has no objection to it being accepted as a local rule.

Judge Leclerc submitted an amendment to the local rule whereby the term "presiding" was deleted on line 6 of Handout #2 and the term "sentencing" was deleted on line 7 and the following language was inserted in lieu thereof: "consideration of the agreement". The Committee questioned whether the local rule applies to the county court. Judge Leclerc indicated that it did not. Judge Glaser pointed out that under Rule 1.1 the scope of these rules apply to all courts in this state. Therefore, if this rule was adopted as a statewide rule it would apply to all courts.

Again, Justice Gierke pointed out that the Committee's options were to 1. recommend to the Supreme Court the adoption of this rule as a statewide rule, 2. recommend to the Supreme Court that the local rule be approved, 3. to recommend to the Supreme Court that the local rule not be adopted. Ms. Schmitz MOVED to recommend to the Supreme Court that Local Rule 3 be approved for the East Central Judicial District. Mr. McLean seconded the motion. Motion CARRIED.

RULE 3.2(a), continued

New drafts for Rule 3.2(a) by staff counsel (Handout #4) and by David Peterson (Handout #5) were distributed to the Committee members. The Committee determined that they will continue working on subdivision (a) and approve something today if possible. However, subdivision (c) will be worked on

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at the next meeting because the Committee felt additional research was needed to be done.

Mr. McLean MOVED to adopt staff counsel's draft to subdivision (a) of Rule 3.2. Mr. Lamb seconded the motion. The Committee discussed amending subdivision (a) at the bottom of the first page of the draft as follows: "The court, in its discretion, may require the taking of testimony or oral argument and may allow or require testimony on the motion." Mr. McLean accepted the amendment. Motion CARRIED. Professor Kraft suggested that the explanatory note to Rule 6(d) refer to Rule 3.2(c).

RULE 3.2 SUBMISSION ON BRIEFS

AND FILING MOTIONS

(a) Filing with Clerk. Unless otherwise permitted by the court, all notices of motion and supporting papers, with proofs of service, must be filed with the clerk at least 3 days before the date of any hearing permitted, and all returns thereto must be served and filed with the clerk at least one day before the date of hearing. Unless so served and filed, the motions, and returns thereto, may be vacated by the court.

(b) Filing Prior to Hearing in Default Matters. All pleadings and other papers relating to default matters must be filed with the clerk prior to the hearing, unless otherwise directed by the court.

(c) Submission (a) Submission of Motion. on Briefs. Unless otherwise ordered by the court, uUpon serving and filing a motion, or within 5 days thereafter, the moving party shall serve and file a brief and other supporting papers and the adverse party shall have 10 days after service of the a brief within which to serve and file an answer brief and other supporting papers. Upon the filing of briefs, or upon expiration of the time for filing, the motion is deemed submitted, heard to the Court and taken under advisement by the court, unless counsel for any party requests the taking of testimony or oral argument. on the motion. If any party request the taking of testimony or oral argument on the motion, the request must be granted. , the procedures under the rules for obtaining a hearing must be followed, unless otherwise ordered by the court. The party requesting oral argument must secure a time for the argument and serve notice upon all other parties. The court may hear oral argument on any motion by telephonic conference.

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The court, in its discretion, may require the taking of testimony ororal argument and may allow or require testimony on the motion.

Requests for oral argument or the taking of testimony must be made within 5 days upon expiration of the time for filing briefs. Each motion must be heard at a time designated by the court. The court, with the consent of all parties affected, may hear oral argument on any motion by telephonic conference.

UNIFORM LAW COMMISSIONERS' AMENDMENTS

Judge Leclerc questioned why the Uniform Law Commissioners' amendments were on the agenda. Staff counsel indicated that Judge Burdick asked that they be included for discussion at this meeting. Judge Glaser indicated that he did not feel these amendments should be accepted outright by the Committee. That is, specific rules or amendments that are submitted to the Committee for consideration should contain a reason why the Committee should consider them. Ms. Schmitz questioned how the amendment to Rule 412, NDREv, related to the criminal statute addressing this. (§ 12.1-20-14, NDCC).

Judge Leclerc MOVED that Rule 412, NDREv, be further researched to conform with the statute and to track the Federal rule as much as possible, that the past minutes of the Committee be reviewed to see what action had been taken in the past, and for staff counsel to report back to the Committee. Ms. Schmitz seconded the motion. Motion CARRIED.

The Committee wanted to know why we would need this rule. They felt that they needed to speak to Judge Burdick on this issue. Professor Kraft indicated that we should have a rule on this. That this is an important rule and may be a social pressure statute. Mr. Lamb MOVED to defer action on the rest of the Uniform Law Commissioners' Amendments to the Rules of Evidence until the Committee could speak to Judge Burdick concerning this. Judge Leclerc seconded the motion. Motion CARRIED.

EXPLANATORY NOTES TO RULES 801, 803, 902, NDREv

Rules 801, 803, and 902, NDREv, were amended at the December 1987 meeting. Since there may have been additional amendments approved by the Joint Procedure Committee following the Uniform Law

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Commissioners' action, the explanatory notes were separated out pending action taken at this meeting. Since the Committee did not take any action on the Uniform Law Commissioners' amendments, the amendments which were approved at the December meeting still stand. Judge Leclerc MOVED to approve the explanatory notes to Rules 801, 803 and 902, NDREv. Judge Hilden seconded the motion. Motion CARRIED.

RULE 81, NDRCivP

It was pointed out by Judge Glaser that there is a conflict in Rule 81 and that the term "proceedings" appear in the heading but the rule talks about procedure. Ms. Schmitz MOVED to approve the amendment to Rule 81 and to Table A with the amendment that in Table A the word "proceeding" be substituted with the word "proceedings". Judge Leclerc seconded the motion. Motion CARRIED. Staff counsel was directed to put an explanation for the change in the minutes in the explanatory note. The amendment to Rule 81 is due to the fact that this rule is not limited to special kinds of statutory procedures. The rule was amended to clarify this matter. Rule 81 uses the words "statutory procedures" which by its term includes any kind of statutory procedure instead of being limited to a special statutory proceeding.

RULE 81. APPLICABILITY--IN GENERAL

(a) Special Statutory Proceedings. Special Sstatutory proceduresproceedings, whether or not listed in Table A*, are excepted from these rules insofar as they are inconsistent or in conflict with the procedure and practice provided by these rules.

(b) * * *

(c) * * *

Pub. Note: Table A is reproduced following Rule 86.

TABLE A. SPECIAL STATUTORY PROCEDURE

PROCEEDINGS UNDER RULE 81

* * * * *

RULES BOOK PUBLICATION

The Committee discussed publication of the Rules Book. Staff counsel pointed out that the Rules

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Book should be available within the next few weeks. The Committee questioned why West was publishing the Rules Book this time rather than Michie and indicated that the rules should be contained in one volume. They strongly urge that the next publication be done by Michie because of the number of errors that occur when it is published in two different places.

SERVICE OF PROCESS IN JUVENILE PROCEEDINGS

Judge Glaser pointed out that there is inconsistency in the service of process rule and the statute governing juvenile proceedings. It appears that Rule 4 and Chapter 27-20, NDCC, conflict.

Because of the time restraints under the law, the question being presented is whether a receipt is needed for registered or certified mail. Rule 81 indicates that if there is a conflict that it be resolved by way of following the statute. Judge Leclerc MOVED to request the Supreme Court to refer this issue to the Committee on Juvenile Procedures with the suggestion that the Committee consider correcting this problem legislatively.

CONTEMPT CONTINUED

Rule 42, NDRCrimP, does control criminal contempt. The Committee felt that a few statutes may need to be amended in order to track the North Dakota Supreme Court cases.

The proposed legislation does not go to the issues of the right to an attorney, the payment of witness fees, etc. The proposed draft simply defines contempt and its sanctions. Judge Glaser pointed out that the proposed draft is just a definition with the procedure outlined and that we would have to re-write our rules of procedure to follow it. Judge Glaser believes that if it is a punitive sanction the right to counsel arises immediately.

Mr. Lamb thinks that this matter should be addressed by rule and not by statute. Judge Glaser indicated that if a person can be imprisoned for contempt then it is not in the realm of rule-making. This is substantive law, not procedural law.

Judge Hilden questioned that in view of the two recent North Dakota Supreme Court cases whether the Committee needs to do anything at this time with the law of contempt. He questioned whether there was

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a problem and if there was whether it wasn't a statutory problem. Judge Leclerc indicated that he feels that contempt is in the province of the court and not the Legislature and therefore he agrees with Mr. Lamb's position. Judge Glaser did not agree with this position because it goes beyond the court controlling its own procedure.

Mr. McLean pointed out that there is a federal rule on this, however, Congress gave the Supreme Court the power to adopt a rule and once it's adopted it is adopted by Congress. Mr. Lamb pointed out that we have two problems. One, where are we going to handle this issue? Are we going to handle it by rule or by statute? Second, the problem of the substance of the procedure.

Judge Hilden indicated that he does not believe the Committee needs to do anything at this time due to the fact that the recent cases have given us the answers that we need in order to address contempt. Mr. McLean MOVED to have staff research whether this should be addressed by rule or statute and to report to the Committee at the next meeting, keeping in mind the right to a jury and the right to counsel. Mr. Lamb seconded the motion. Motion CARRIED.

NEXT MEETING DATE

Judge Leclerc questioned whether the staff attorney could set up a tentative schedule for a couple of years for the Joint Procedure Committee to consider. Consistent months where most members are able to make the meetings seem to be September, January and April. The Committee was in agreement that the next meeting should be held at the end of September. Justice Gierke inquired as to whether anyone wished to attend the conference in Massachusetts regarding the Federal Rules of Civil Procedure. Mr. McLean indicated that he may be interested in going and would contact our office at a later date.

ADJOURNMENT

The meeting was adjourned at 11:25 am. The next meeting will tentatively be held at the end of September 1988.

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Sandy Demianew, Secretary