Joint Procedure Committee Meeting

Scheduled on Thursday, March 27, 1980 @ 1:00 PM

MINUTES OF MEETING

Joint Committee of the Judicial Council
and the State Bar Association
Joint Procedure Committee

March 27-28, 1980

CALL TO ORDER

The meeting was called to order at 1:00 p.m., March 27, 1980, by Justice Paul M. Sand, Chairman.

ATTENDANCE

Present

Hon. Eugene A. Burdick
Hon. Gerald G. Glaser
Hon. James H. O'Keefe
Hon. Kirk Smith
Mr. Leonard H. Bucklin (3:00 p.m.)
Mr. William A. Hill
Mr. LeRoy A. Loder
Mr. Herbert L. Meschke
Mr. David L. Peterson

Absent

Hon. Halvor L. Halvorson
Hon. Larry Hatch
Hon. Robert C. Heinley
Hon. William S. Murray
Hon. Robert Vogel
Mr. Ward M. Kirby
Mr. Larry Kraft
Mr. James L. Lamb
Mr. Richard A. McKennett
Mr. Russell G. Nerison

APPROVAL OF MINUTES

Judge Burdick MOVED that the minutes be approved as submitted. Mr. Peterson seconded the motion. Motion CARRIED.


-2-

RULEMAKING POWER AND "TERRITORIAL INTEGRITY"

Judge Glaser MOVED that the chairman of this committee be directed to convey to the members of the Supreme Court that this committee's position is that any rule relating to procedure which anyother committee desires to have adopted be referred to the Joint Procedure Committee for consideration, approval and recommendation before final action is taken by the Supreme Court to promulgate the rule, thus preserving this committee's "territorial integrity," and that all committees respect the "territorial integrity" of the other committees. Mr. Loder seconded the motion. Motion CARRIED unanimously.

PUBLICATION OF RULES

The Clerk of the Supreme Court, Luella Dunn, gave an oral report on West Publishing Company's proposal to print all the Rules in one volume. West would print a new volume of Rules every two years, with a supplement to be issued each year. The Court would guarantee the sale of 500 volumes. Each volume would cost $17.50 ($8,750.00).

The members of the committee, with no expressed exceptions, were of the opinion that the one-volume concept, published every two years with an in- between supplement, would be a great convenience for the lawyers and would insure that all lawyers would practice under the latest rule revisions, and the convenience would outweigh the cost.

RULE 83, NDRCivP

Judge Burdick MOVED to amend the last sentence of proposed draft "D" of Rule 83, NDRCivP, to read as follows: "In all cases not provided for by rule or statute, the court may regulate its practice in any proceeding properly before it in any manner not inconsistent with rules adopted by the supreme court or any applicable statute.", and to adopt this rule when so amended. Judge O'Keefe seconded the motion. Motion CARRIED, 7 voting "aye" and 2 voting "nay". Judge Glaser voted "nay" and stated: "I think the motion is premature at this time."

In all cases not provided for by rule or statute, the court may regulate its practice in any proceeding properly before it in any manner not inconsistent with rules adopted by the supreme court or any applicable statute.


-3-

Mr. Peterson MOVED that final submission of Rule 83, NDRCivP, as amended, be delayed until review is made by this committee of existing "local" district court rules to determine whether or not they can be incorporated in the civil rules or by statewide district court rules. Judge Burdick seconded the motion. Motion CARRIED.

RULE 57, NDRCrimP

Judge Burdick MOVED to amend Rule 57, NDRCrimP, to be identical with Rule 83, NDRCivP. Judge O'Keefe seconded the motion. Motion CARRIED.

In all cases not provided for by rule or statute, the court may regulate its practice in any proceeding properly before it in any manner not inconsistent with rules adopted by the supreme court or any applicable statute.

NEXT MEETING

The next meeting of the Joint Procedure Committee will be May 29 and 30, 1980, commencing at 1:00 p.m. on May 29.

RECESS

The meeting recessed to 9:00 a.m., March 28, 1980.

CALL TO ORDER

The meeting was called to order at 9:00 a.m., March 28, 1980, by Justice Paul M. Sand.

ROLL CALL

Present

Hon. Eugene A. Burdick
Hon. Gerald G. Glaser
Hon. James H. O'Keefe
Hon. Kirk Smith
Mr. William A. Hill
Mr. LeRoy A. Loder
Mr. Herbert L. Meschke
Mr. David L. Peterson

RULE 40, NDRCivP

Mr. Meschke MOVED that the staff attorney prepare a draft of Rule 40 following the pattern of Local Rule 4 of


-4-

the South Central Judicial District to be submitted to the committee at its next meeting. Mr. Peterson seconded the motion.

Judge Burdick MOVED to amend the motion to add the clause "taking into consideration Rule 6 of the Northwest Judicial District." Judge Smith seconded the motion. Motion CARRIED.

The question was on the motion of Mr. Meschke, which motion CARRIED.

RULE 28, NDRCivP

Judge Burdick MOVED that the proposed draft of Rule 28, NDRCivP, be amended as follows:

Line 10: Delete "as in" and insert "under";

Line 44 After the word "the" insert "state or"; after the word "obtained" insert "in a foreign country pursuant to a commission or".

Mr. Meschke seconded the motion. Motion CARRIED.

Judge Burdick MOVED to adopt Rule 28, NDRCivP, as amended. Mr. Hill seconded the motion. Motion CARRIED.

PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN

(a) Within the United States. Within the United States or within a territory or insular possession subject to the dominion of the United States, depositions shall be taken before an officer authorized to administer oaths by the laws of this state or of the United States or of the place where the examination is held, or before a person appointed by the court in which the action is pending. A person so appointed has power to administer oaths and take testimony. Depositions may also be taken before a person commissioned by the court or pursuant to a letter rogatory under subdivisions (b) and (c).

(b) In Foreign Countries. In a foreign country, depositions may be taken (1) on notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the law of the United States, or (2) before a person commissioned by the court, and a person so commissioned shall have the power by virtue of his commission to administer any necessary oath and take testimony, or (3) pursuant to a letter rogatory.


-5-

(c) Commission or Letter Rogatory. A commission or a letter rogatory shall be issued on application and notice, and on terms that are just and appropriate. It is not a requisite to the issuance of a commission or a letter rogatory that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and a letter rogatory may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. A letter rogatory may be addressed "To the Appropriate Authority in [here name the state or country]." Evidence obtained in a foreign country pursuant to a commission or in response to a letter rogatory need not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or for any similar departure from the requirements for depositions taken under these rules.

(d) Disqualification for Interest. No deposition shall be taken before a person who is a relative or employee or attorney or counsel of any of the parties, or is a relative or employee of such attorney or counsel, or is financially interested in the action.

RECESS

The meeting recessed to 1:00 p.m., March 28, 1980.

CALL TO ORDER

The meeting was called to order at 1:00 p.m., March 28, 1980, by Justice Paul M. Sand, chairman.

ROLL CALL

Present

Hon. Eugene A. Burdick
Hon. Gerald G. Glaser
Hon. James O'Keefe
Hon. Kirk Smith
Mr. William A. Hill
Mr. LeRoy A. Loder
Mr. Herbert L. Meschke
Mr. David L. Peterson

TABLE A (Rule 81, NDRCivP)

Judge Burdick MOVED to amend Table A to include Title 30.1, Uniform Probate Code. Judge O'Keefe seconded the motion. Motion CARRIED.


-6-

TABLE A

Special Statutory Proceedings Under Rule 81

Following is a list of statutes pertaining to special proceedings which are excepted from these rules insofar as they are inconsistent or in conflict with the procedure and practice provided by these rules:

North Dakota Century Code

10-21 North Dakota Business Corporation Act - Dissolution

14-03-15 When Serological Test Not Necessary

14-17-12 to 14-07-14 Transfer of Property When Spouse Abandoned or Imprisoned

14-09-06 Habeas Corpus to Determine Custody of Minor

14-15 Revised Uniform Adoption Act

14-12.1 Revised Uniform Reciprocal Enforcement of Support Act

14-17 Uniform Parentage Act

16-01-10 Correcting Errors on Ballots

16-04-30 to 16-04-33 Contesting Nomination of Candidate

16-13-27 Recount in Case of Tie Vote in County or Legislative Offices

16-15 Contesting State or County Elections

18-01-18 to 18-01-27 Proceedings to Abate Fire Hazards

27-20 Uniform Juvenile Court Act

Title 30.1 Uniform Probate Code

32-15 Eminent Domain

32-16 Action for Partition of Real Property

32-17 Actions to Quiet Title and Determine Claims to Real Estate

32-18 Cancellation of Land Contracts

32-19 Foreclosure of Real Estate Mortgage by Action

32-20 Foreclosure of Liens on Personal Property

32-22 Habeas Corpus

32-26 Administration of Assignment for Benefit of Creditors

32-27 Establishing Citizenship

32-28 Change of Names of Persons and Places

32-29 Arbitration

32-30 Proceedings Against Joint Debtors

32-21 Foreclosure of Tax Liens

32-32 Special Proceedings, General Provisions

32-33 Writ of Certiorari


-7-

32-34 Writ of Mandamus

32-35 Writ of Prohibition

32-37 Establishing Date and Place of Birth

40-47-11 Determination of Board of Adjustment Reviewable by Certiorari

40-51.1-07 to 40-51.1-14 Annexation by Petition of Municipal Corporation

40-51.1-16 to 40-51.1-17 Exclusion by Municipal Ordinance

44-01-10 Approval of Bond of Public Officer

49-11-12 Review of Commission's Disapproval of Plan for Railroad Crossing Without Stopping

57-30 Action by County to Quiet Title

59-04 Administration of Trusts

60-06 Public Warehouses on Railroad Right-of-Way

RULE V

Mr. Hill MOVED to adopt proposed Rule V (draft from Federal Local Rules). Judge Smith seconded the motion.

Mr. Meschke MOVED a substitute motion that proposed Rule V be amended as follows:

Line 7: after "unless" insert "any party or"; delete "orders" and insert "requests"; delete remainder of line;

Lines 8, 9, 10: delete;

Line 11: delete "ordered" and insert "requested".

Mr. Loder seconded the motion. Motion LOST.

Judge Burdick MOVED to adopt proposed Rule V, with style changes. Mr. Hill seconded the motion. Motion CARRIED.

Judge Burdick MOVED to further amend subsection (d) by inserting a topic heading:. "Time Limit for Filing Motion."; delete "all motions" and insert "a motion"; delete "they are at issue" and insert "it may be heard". Mr. Loder seconded the motion. Motion CARRIED.

Judge Burdick MOVED to further amend Rule V as follows:

Line 7: after "permits" insert "the taking of testimony or";


-8-

Line 8: after "order or" insert "the taking of testimony or";

Line 11: after "which" insert "the taking of testimony or".

Judge Smith seconded the motion. Motion CARRIED.

Judge Burdick MOVED to further amend Rule V as follows:

Line 5: after "briefs" insert "or upon the expiration of the time for filing".

Mr. Loder seconded the motion. Motion CARRIED.

The question was on the motion of Mr. Hill to adopt Rule V. Motion CARRIED. Judge Smith voted "nay."

Judge Burdick MOVED to reconsider Rule V for purpose of amendment. Mr. Loder seconded the motion. Motion CARRIED.

Judge Burdick MOVED to amend Rule V in line 4, delete "thereafter" and insert "after service of the brief". Mr. Hill seconded the motion. Motion CARRIED.

RULE V (Rules of Court for the District Courts draft)

Judge Burdick MOVED to amend proposed Rule V as follows:

Line 2: delete "motions, orders to show"

Line 3; delete "cause";

Line 7: delete "orders to show cause"

Judge Smith seconded the motion. Motion CARRIED.

RULE V (Federal Local Rules draft)

Judge Burdick MOVED to redesignate subdivisions (a), (b), (c), and (d) as subdivisions (c), (d), (e), and (f), respectively, and add them to the previously adopted Rule V. Mr. Peterson seconded the motion. Motion CARRIED. Judge Smith voted "nay".

RULE V

MOTIONS

(a) Filing with Clerk. Unless otherwise permitted by the court, all notices of motion and supporting instruments, with proofs of service, shall be filed with the clerk at least 3 days before the date of any hearing permitted, and all returns thereto shall 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.


-9-

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

(c) Submission on Briefs. Upon serving and filing a motion, or within 5 days thereafter, the moving party shall serve and file a brief. The adverse party shall have 10 days after service of the brief within which to serve and file an answer brief. Upon the filing of briefs, or upon the expiration of the time for filing, the motion is deemed submitted and taken under advisement by the court, unless the court permits the taking of testimony or oral argument on the motion. The court, in its discretion, may permit the taking of testimony or oral argument on its own motion, or upon application of either party filed within 5 days after the time for filing briefs has expired. Each motion upon which the taking of oral testimony or oral argument is permitted shall be heard at a time designated by the court.

(d) Failure to File Briefs. Failure to file briefs within the prescribed time subjects a motion to summary ruling. Failure to file a brief by the moving party is an admission that, in the opinion of counsel, the motion is without merit. Failure to file a brief by the adverse party is an admission that, in the opinion of counsel, the motion is meritorious.

(e) Extensions of Time. Extensions of time for filing briefs, or for continuance of the hearing on a motion, shall be granted only by written order of court. All requests for extension of time or continuance, whether written or oral, must be accompanied by an appropriate order form.

(f) Time Limit for Filing Motion. Except for good cause shown, a motion must be filed in such time that it may be heard not later than the date set for pretrial of the case.

RULE 81, NDRCivP, and TABLE A

Judge Burdick MOVED to amend Rule 81, NDRCivP, by deleting "Proceedings" and inserting "Procedure" in line 1, and to amend the caption to Table A as follows: delete "Special Proceedings" and insert "Special Statutory Procedures"; and to amend the explanatory material to read: "The following is a nonexclusive list of statutes pertaining to special procedures." Judge Smith seconded the motion. Motion CARRIED.


-10-

Judge Burdick MOVED to adopt Rule 81, NDRCivP, and Table A, as amended. Judge Smith seconded the motion. Motion CARRIED.

RULE 81. APPLICABILITY--IN GENERAL

(a) Special Statutory Procedure. The statutory procedures 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) Appeals to District Courts. These rules do not supersede the provisions of statutes relating to appeals to or review by the district courts, but shall govern procedure and practice relating thereto insofar as these rules are not inconsistent with such statutes.

(c) Rules Incorporated Into Statutes. Where any statute heretofore or hereafter enacted, whether or not listed in Table A, provides that any act in a civil proceeding shall be done in the manner provided by law or as in a civil action, such act shall be done in accordance with these rules.

TABLE A

Special Statutory Procedure Under Rule 81

The following is a nonexclusive list of statutes pertaining to special procedures.

[Here follows the list of statutes as on pages 6 and 7 these Minutes]

RULE XV, DISTRICT COURT RULES

Judge Burdick MOVED to amend Rule XV as follows:

Line 2: Insert at end of line, "upon an appeal in which the decision of the court will be based exclusively upon that record,";

Line 4: Delete "may"; delete "allow" and insert "may permit" after "discretion."

and to adopt Rule XV as amended. Judge Smith seconded the motion. Motion CARRIED.

ADMINISTRATIVE APPEALS

Upon receipt of the record made before an administrative agency, board, commission, or officer, upon an appeal in which the decision of the court will be based exclusively upon that record, the court shall fix a time for filing of briefs. The court, in its discretion, may permit oral argument. A party desiring oral argument must so indicate on or before the time fixed for filing of that party's brief.


-11-

TENTATIVE ADOPTION OF RULES

Judge Burdick MOVED that these rules be tentatively adopted as amended, subject to general revision of the district court rules. Judge Smith seconded the motion. Motion CARRIED.

RULE 801, NDREv

Judge Burdick MOVED to adopt the proposed amendments to Rule 801, NDREv. Mr. Meschke seconded the motion. Motion CARRIED.

Judge Burdick MOVED to adopt Rule 801, NDREv, as amended. Mr. Meschke seconded the motion. Motion CARRIED.

RULE 801. Definitions.

The following definitions apply under this Article:

(a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion.

(b) Declarant. A "declarant" is a person who makes a statement.

(c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

(d) Statements which are not hearsay. A statement is not hearsay if:

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (i) inconsistent with his testimony, but, if offered in a criminal proceeding, was given under oath and subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (ii) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, or (iii) one of identification of a person made after perceiving him; or

(2) Admission by party-opponent. The statement is offered against a party and is (i) his own statement, in either his individual


-12-

or a representative capacity, (ii) a statement of which he has manifested his adoption or belief in its truth, (iii) a statement by a person authorized by him to make a statement concerning the subject, (iv) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship, or (v) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

ADJOURNMENT

Judge Burdick MOVED to adjourn to May 29, 1980, at 1:00 p.m. Judge Smith seconded the motion. Motion CARRIED.

_______________________
Secretary